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THE CIVIL LIABILITY 
 
 FOR 
 
 PEKSONAL INJUEIES. 
 
THE 
 
 CIVIL LIABILITY 
 
 FOE 
 
 PEESONAL INJURIES 
 
 ARISING OtJT OF 
 
 NEGLIGENCE. 
 
 BT 
 
 HENRY F. BTJSWELL, 
 
 AUTHOR or " THE LAW OF INSANITY," " LIMITATIONS . AND ADVERSE 
 
 possession;" editor of "tAYLOK's LANDLORD 
 
 AND TENANT," ETC. 
 
 SECOND EDITION", 
 
 KEVISED AND ENLAKGB,©, 
 
 BOSTON: 
 
 LITTLE, BROWT!^, AND COMPANY 
 
 1899. 
 
Copyright, 1893, 
 By Little, Brown, and Cojhpant. 
 
 Copyright, 1899, 
 Bt Little, Brown, and Company. 
 
 All rights reserved. 
 
 John Wilson and Son, Cambbidgb, U.S.A. 
 
PREFACE TO THE SECOND EDITION. 
 
 In the preparation of the present edition, the text of 
 the work has been revised, all errors discovered cor- 
 rected, and obsolete and redundant matter expunged. 
 A great amount of new matter has been added under 
 the respective section heads, and a number of supple- 
 mentary sections inserted. The cases, reported since 
 the publication of the first edition, have been exam- 
 ined, and about seventeen hundred citations from the 
 decisions of the courts of last resort added to the work. 
 Gratefully acknowledging the favor with which the 
 the first edition of the book has been received, the 
 author believes that its thorough revision, and the 
 additions made to it in the present edition, will be 
 found materially to have increased its value, both to 
 the student and the practising lawyer. 
 
 H. F. B. 
 ' Boston, August, 1899. 
 
PREFACE TO THE FIRST EDITION. 
 
 In the present work, it has been the design of the 
 author to state the principles which, in actions for 
 personal injuries, caused by negligence, create, as 
 between the parties, the relations of plaintiff and 
 defendant ; to discuss the law of negligence, so far as 
 this is to be applied to the subject-matter of the work ; 
 to consider the rules applicable in cases of liability 
 created by statute ; and, finally, to discuss the general 
 rule of liability as this is modified by the existence, 
 between the parties, of the relation of employer and 
 employee. It is upon this branch of the general 
 subject, that the tendency of the later leading deci- 
 sions in the United States has been to modify the 
 somewhat narrow interpretation of the common law, 
 in favor of the master, expressed in certain leading 
 English cases ; and it is hoped that that will be found 
 not the least valuable part of the work in which the 
 relation of master and servant is discussed. The plan 
 * of the work, in detail, appears in the Analytical Table 
 of Contents. 
 
 In his treatment of the subject, the author has 
 attempted to state clearly the principles of the law, 
 and sufficiently to illustrate these by the citation of 
 
Viii PREFACE TO THE FIRST EDITION. 
 
 the facts of decided cases, but he has avoided over- 
 loading the work with the full statement of cases 
 merely cumulative ; a practice which, in his judgment, 
 has the result to confuse and perplex the student. 
 So, the leading principles of the law, as settled by the 
 weight of authority, are stated in the text of the work; 
 the discussion of collateral matters, and disputed or 
 doubtful points or cases, being reserved, generally, for 
 the footnotes. 
 
 Well knowing that, in a work covering so large a 
 field and touching so many and difficult questions, 
 some errors of opinion, or omissions of important 
 matters, must appear, the author refers his book to the 
 intelligent criticism of the profession to whose favor, 
 which he here gratefully acknowledges, he already 
 
 owes so much. 
 
 H. F. B. 
 
 Boston, April, 1893. 
 
ANALYTICAL TABLE OF CONTENTS. 
 
 CHAPTER L 
 
 OF PARTIES PLAINTIFF. 
 SECTION I. 
 
 GENEEALLT, OF THE NATURE AND TOKM OF THE ACTION. 
 
 PAGE 
 
 ) 1. Subject of the Work the Civil Action in Tort 1 
 
 2. The Civil' and Crimina! Remedies Indepeddent of each other 1 
 
 3. Breach of Public Duty the Foundation of the Action : Prin- 
 
 ciple Illustrated 3 
 
 4. Form of the Common-Law Action 3 
 
 5. Concurrent Remedies in Contract or Tort: but Action rests 
 
 on Breach of Duty 4 
 
 6. Illustrations of the Rule 6 
 
 7. Remedies created by Statute 7 
 
 SECTION n. 
 
 COMMON-LAW ACTIONS BY ONE FOE INJURY TO ANOTHER. 
 
 § 8. Generally : When such Actions will lie 8 
 
 9. Measure of Damages 9 
 
 (a) Jf^or Injury to Servant. 
 
 ^ 10. Lies for Loss of Service 9 
 
 11. So, although a Contract between the Servant and the 
 
 Defendant 10 
 
 (b) JFor Injwy to Child. 
 
 \ 12. For Loss of Service 15 
 
 13. For Expense in curing the Child .... 16 
 
 (c) For Injury to Wife. 
 
 \ 14. Lies for Loss of Services and Society 17 
 
ANALYTICAL TABLE OP CONTENTS. 
 
 SECTION III. 
 
 STATUTOEY ACTIONS IN BEHALF OF DECEASED PERSONS OB THEIE 
 
 EEPEESENTATIVES. 
 
 PAGB 
 
 § 15. No Action for Death at Common Law 18 
 
 16. Contrary Authority 20 
 
 (a) Survival of Actions. 
 
 § 17. Provided for by Statute 22 
 
 18. No Action unless Party survives the Injury 23 
 
 19. Need not be Conscious nor live more than an appreciable Time 23 
 
 20. Kule of Damages 24 
 
 (b) Action for Death. 
 
 § 21. Created by Statute : Nature of 24 
 
 22. General Form of Statute 26 
 
 23. Rule of Damages 28 
 
 24. Quasi Penal Actions 30 
 
 25. Criminal Indictment 31 
 
 (c) Venue of the Statutory Action for Death. 
 
 § 26. Generally 31 
 
 27. In the United States 32 
 
 28. As between different States 33 
 
 29. When Foreign Actions maintained 34 
 
 30. Rule of the Federal Courts 36 
 
 CHAPTER II. 
 
 OF PARTIES DEFENDANT. 
 SECTION I. 
 
 OF THE JOINT AND SEVEEAL LIABILITY. 
 
 § 31. Defendants jointly and severally liable 39 
 
 32. So, although Contract Relation exist 40 
 
 SECTION II. 
 
 LIABILITY OF MASTER FOR ACTS OF SERVANT OR AGENT. 
 
 (a) Generally. 
 
 § 33. Respondeat Superior : General Rule 42 
 
 34. Illustrations of the General Rule 44 
 
ANALYTICAL TABLE OP CONTENTS. XI 
 
 PAGE 
 
 § 35. Authority of the Servant to do the Aqt inferred from the 
 
 Employment 47 
 
 36. Master may be, liable, although Servant act against Orders . '47 
 
 37. When Master not responsible 49 
 
 38. Special Liability of Carriers of Passenger^ 51 
 
 (b) Servant and Contractor, 
 
 § 39. Employer not liable for acts of mere Contractor: Sub-Con- 
 tractor 53 
 
 40. Rule illustrated in Actions against Corporations 55 
 
 41. Employee may be at the same time Servant and Contractor . 57 
 
 42. Question, in whose Right the Act is done 58 
 
 43. Exception to General Rule in Case of Nuisance 60 
 
 « 
 (c) Corporation liable for Torts of its Servant. 
 
 § 44. May be sued in Trespass or Case 62 
 
 44 a. As to Corporations in Receivership 63 
 
 44 6. As to Charitable Corporations 66 
 
 45. Corporation and Servant may be joined 67 
 
 SECTION III. 
 
 LIABILITY OF PASSENGER CARRIERS FOR ACTS OF INDIVIDUALS 
 OR CORPORATIONS IN PRIVITY. 
 
 § 46. Carrier responsible for Negligence of third Persons or Cor- 
 porations acting in Privity with it 68 
 
 47. As to Connecting Railroads : Sleeping Cars 69 
 
 48. So as to Negligence of Licensee 72 
 
 49. Railroad Leases, Effect of : Consolidations 72 
 
 50. Certain Statute Limitations of the Rule 74 
 
 SECTION IV. 
 
 OF THE LIABILITY OF PUBLIC OFFICERS. 
 
 §51. Rule of Respondeat Superior does not apply to 76 
 
 52. When personally liable 77 
 
 SECTION V. 
 
 OF THE LIABILITY OF MUNICIPAL CORPORATIONS AT COMMON LAW. 
 
 (a) Of Quasi Corporations, Generally. 
 
 § 53. Not liable at Common Law, in the United States, Reasons of 
 
 the Rule 70 
 
 54. Same Subject 80 
 
Xil ANALYTICAL TABLE OF CONTENTS. 
 
 PAGE 
 
 § 55. Applications of the Rule 81 
 
 56. Rule of Respondeat Superior applied to Municipal Corpora- 
 tions 82 
 
 (b) Of Certain Meceptions to the Hule. 
 
 § 57. Possible Exception to the Rule in cases of Misfeasance . . 84 
 
 58. Acts done for Special Benefit or Emolument 86 
 
 59. Duties depending on Condition or Prescription in England . 90 
 
 (c) 0/ Municipal Corporations existing under special Charters. 
 
 § 60. Semble, Liability not created by Incorporation merely . . 91 
 
 61. Contrary Rule in New York 93 
 
 62. In other States 93 
 
 63. In the Supreme Court of the United States 95 
 
 SECTION VI. 
 
 OF THE LIABILITY OF OWNEKS AND OCCUPANTS OF LAND, ETC. 
 
 § 64. Generally 99 
 
 65. Question of Law and Fact .... 99 
 
 (a) As to Persons entering on business, or hy the Procurement 
 of the Owner or Occupant. 
 
 § 66. Owner responsible for the Condition of the Premises. Im- 
 plied Invitation 100 
 
 67. Applications of the Rule 102 
 
 68. Same Subject : Vessels 105 
 
 69. Same Subject: Railroad Crossings 106 
 
 70. As to Persons entering by Invitation merely 107 
 
 (b) As to Persons Tre^a^sing. 
 
 \ 71. General Rule : Owner liable for Wanton Injury .... 109 
 
 72. Trespasser, having Notice, takes the Risk Ill 
 
 73. Rule applied to Trespassers on Railway Tracks or Trains . 112 
 
 74. Exceptions to Rule, when Owner creates a Public Nuisance . 115 
 
 75. As to Infant or Ignorant Trespassers 117 
 
 76. Reasons and Limitations of the Rule 117 
 
 77. Question, whether the Defendant's Act was wilfully mis- 
 
 chievous 120 
 
 78. Rule a,pplied in favor of Railway Companies 122 
 
 Note. As to certain Applications of the Doctrine of Lynch 
 
 V. Nurdin 122 
 
ANALYTICAL TABLE OF CONTENTS. xiii 
 
 (c) As to Licensees. 
 
 PAGB 
 
 \ 79. Owner's Obligation to, generally . . 128 
 
 80. Invitation and License 130 
 
 81. As to Notice 131 
 
 SECTION VII. 
 
 LIABILITY OF THE OWNER OP LEASED PKOPERTY. 
 
 (a) To the Tenant. 
 
 \ 82. Generally : I)oes not warrant the Condition of the Premises. 
 
 Tenant takes the Risk 132 
 
 83. So as to Persons in Privity with the Tenant 133 
 
 84. Owner liable for the Results of Fraudulent Concealment . 134 
 
 85. Or for Injuries oa the Part of Premises of which he retains the 
 
 control 135 
 
 86. Owner undertaking Repairs liable for Negligence therein . 137 
 
 87. Or for his Overt Acts of Negligence 137 
 
 88. Violation of Statute Regulation by Owner : Effect of . . 138 
 
 (b) To Third Persons. 
 
 89. Generally : Landlord liable for Nuisance permitted . . . 139 
 
 90. Liability of Landlord dependent on Degree of Control he 
 
 exercises 141 
 
 CHAPTER III. 
 
 OP NEGLIGENCE GENERALLY AND THE DOCTRINE OP 
 PROXIMATE CAUSE 
 
 SECTION I. 
 
 OF NEGLIGENCE, GENERALLY. 
 
 1 91. Defined 144 
 
 92. No Degrees of 146 
 
 93. Law and Fact 148 
 
 94. Functions of Court and Jury 149 
 
 95. Infant may be guilty of 150 
 
 96. Presumption that Plaintiff will take Care of himself . . . 152 
 
xiv ANALYTICAL TABLE OP CONTENTS. 
 
 SECTION II. 
 
 THE DOCTEINE OF PBOXIMATE CAUSE. 
 
 FAOB 
 
 § 97. Defined 154 
 
 98. Connection of Cause and Effect 156 
 
 99. Rule illustrated in Cases of Runaway Accidents .... 157 
 
 100. Nearest Negligent Act referred to 159 
 
 101. Rule applied to cases of Plaintiff's Negligence 162 
 
 102. Doctrine of " Comparative Negligence " disapproved . . . 164 
 
 103. Contributing Negligence of third Person not to defeat 
 
 Remedy 165 
 
 104. Former Qualification of the Rule in England . . . ; . 167 
 
 105. Qualification not accepted iu the United States 168 
 
 106. But Negligence of Person acting with, or under control of, 
 
 the Plaintiff, may defeat Remedy 170 
 
 107. Negligence of Parent or Guardian imputed to Infant . . . 171 
 
 108. Contrary Rule : Question discussed : Actions for Loss of 
 
 Service . 175 
 
 108 a. Negligence imputed to Representatives of Deceased Persons 177 
 
 109. Limitation' of the Rule in Cases of Statutory Liability . . 178 
 
 110. Questions of Law and Fact 179 
 
 CHAPTER IV. 
 
 OF NEGLIGENCE ON THE PART OP THE DEFENDANT. 
 
 SECTION I. 
 
 GENERAL EULES. 
 
 § 111. Burden of Proof : JNo Presumption from Occurrence of 
 
 Accident 180 
 
 Ilia. Negligence presumed — Res Ipsa Loquitur 182 
 
 112. Violation of Statute Regulation by Defendant 185 
 
 SECTION II. 
 
 01' OAKRIEBS OF PASSENGERS. 
 
 § 113. General Rule of Liability 188 
 
 114. Who are Passengers 192 
 
 115. Person conveyed gratuitously may be a Passenger . . . 196 
 
 (a) Bight of the Carrier to limit his Responsibility by Contract. 
 
 §116. Generally, cannot avoid his Liability : Contrary Authority 198 
 117. As to Persons transported gratuitously 201 
 
ANALYTICAL TABLE OP CONTENTS. XT 
 
 (b) Rule of Liability applied to Railroads. 
 
 PASK 
 
 § 118. Measure of Liability, generally 204 
 
 119. Illustrations of the Principle stated 205 
 
 119 a. Duty of Eailroad to the Public, generally 207 
 
 120. Duty of Railroad as to Crossings 209 
 
 121. Degree of Care at Stations and Approaches thereto . . . 212 
 
 122. Rate of Speed of Trains 214 
 
 123. Of the Obligation to give Warnings and Signals .... 216 
 
 124. Invitation to Passenger, express or implied, Effect of . . 220 
 
 SECTION III. 
 
 OF OWNERS OE KEEPERS OF ANIMALS. 
 
 § 125. General Rules applied 222 
 
 126. Owner's Responsibility as affected by Knowledge .... 223 
 
 127. Mischievous Intent inferred in certain Cases 226 
 
 128. Person who keeps the Animal, although not its Owner, 
 
 liable 227 
 
 SECTION IV. 
 
 OF PERSONS HAVING THE CUSTODY AND CONTROL OF DANGER- 
 OUS ARTICLES, ETC.; PHYSICIANS. 
 
 § 129. Generally: Intrusting Dangerous Article to Others . . . 228 
 
 130. As to Dangerous Articles concealed: Rule illustrated in case 
 
 of Carriers 229 
 
 131. Further Illustrations of the Rules stated ; Gas : Electricity 230 
 
 132. The Rule carefully limited 233 
 
 133. Physicians 235 
 
 CHAPTER V. 
 
 or NEGLIGENCE ON THE PART OF THE PLAINTIFF. 
 
 SECTION I. 
 
 LAW AND fact: BURDEN OF PROOF. 
 
 134. Due Care generally : Defined 237 
 
 135. Burden of Proof : Massachusetts Rule 239 
 
 136. Rule that Contributory Negligence is Matter of Defence . 242 
 
 137. Application of the conflicting Rules 246 
 
 138. Question generally one of Fact 248 
 
 139. Necessity of Proof removed by Statute : Passenger . . . 249 
 139 a. Effect of such Statutes in the Federal Courts 251 
 
Xvi ANALYTICAL TABLE OP CONTENTS. 
 
 SECTION II. 
 
 GENERAL EULES APPLIED TO THE ISSUE. 
 
 PAOE 
 
 § 140. Unlawful Act of Plaintiff contributing 252 
 
 141. Violation of Statute or Ordinance 254 
 
 142. Utmost Care not required 256 
 
 143. Wilful Assumption of unnecessary Kisk 259 
 
 144. Entering Premises of Another: Obligation to use Senses . 262 
 
 145. Illustrations of the Principles stated 264 
 
 SECTION III. 
 
 OF PERSONS UNDER DISABILITY. 
 
 § 146. Physical Defects 266 
 
 147. Intoxication 277 
 
 SECTION IV. 
 
 OF INFANTS AND THEIR PARENTS OR GUARDIANS. 
 
 §148. General Rule 269 
 
 149. Negligence of Parent or Guardian .... .... 271 
 
 SECTION V. 
 
 OF EMPLOYEES. 
 
 § 150. General Rule applied : Modification of it 272 
 
 151. Illustrations of the Principle as to Railroad Employees . . 274 
 
 152. Reliance on Signals and Warnings 277 
 
 153. Violation of Rules 278 
 
 154. Illustrations of the Principles stated 280 
 
 SECTION VI. 
 
 OF PASSENGERS. 
 
 § 155. General Rule of Responsibility 281 
 
 156. Violation of Rules of the Carrier : Evasion of Pare : Waiver 
 
 of Rule 282 
 
 157. Conduct of Passengers on Railway Trains : at Stations: 
 
 Invitation 286 
 
 158. Leaving or Boarding moving Trains : Questions of Law and 
 
 Fact 289 
 
 159. As to Passengers in Street Cars 293 
 
 160. As to Passengers on Vessels 295 
 
ANALYTICAL TABLE OP CONTENTS. xvii 
 
 SECTION VII. 
 
 AT EAILWAT CROSSINGS. 
 
 PAQE 
 
 I 161. General Rule : Illustrations 296 
 
 161a. Crossings of Street Railways 301 
 
 162. Invitations and Warnings 303 
 
 163. View of Crossing obstructed 304 
 
 SECTION VIII. 
 
 OF TEATBLLEES ON HIGHWAYS. 
 
 i 164. General Rule applied: Safety of Way assumed .... 306 
 
 165. Knowledge of Defect 307 
 
 166. Looking out for other Travellers : Driving 310 
 
 CHAPTER VI. 
 
 STATITTORY LIABILITY OF MUNICIPALITIES AS TO WAYS. 
 SECTION I. 
 
 PEINCIPLES APPLIED. 
 
 I 167. No Liability at Common Law 313 
 
 168. Statutes strictly construed : Proximate Cause : Obstructions 
 
 lawfully in the Way 316 
 
 169. Negligence of third Party contributing 317 
 
 170. Accident contributing : Innocent Act of third Person : Run- 
 
 away Horses 310 
 
 171. When the Liability attaches : Dedication : Prescription . 323 
 
 172. Duty not to be avoided by Delegation 326 
 
 173. Traveller: Who is 328 
 
 SECTION II. 
 
 DEFECTS IN HIGHWAYS. 
 
 174. What are : Generally 330 
 
 175. General Obligation as to Construction and Maintenance of 
 
 Ways 333 
 
 176. Defects arising outside of the Way 335 
 
 177. Defects or Dangers existing outside the travelled Track . 337 
 
 178. Railings and Barriers 333 
 
 179. Closing Highway for Repairs : Lights: Waterworks . . . 340 
 
 180. Objects overhanging the Highway: Sign-Boards: Awnings 842 
 
 b 
 
XViii ANALYTICAL TABLE OP CONTENTS. 
 
 (a) Jce and Snow. 
 
 PAOS 
 
 § 181. When the Liability of the MuiiiciJ)ality for, attaches . . 344 
 
 182. When a Defect 345 
 
 183. Defect from, caused by artificial means 347 
 
 SECTION III. 
 
 OF NOTICE TO THE DEFENDANT. 
 
 § 184. Generally : Implied : When unnecessary : Illustrations . 348 
 
 185. Kotice to Defendant's Officers or Agents 353 
 
 186. Notice in Writing 355 
 
 Note. — As to Forms of Written Notice 356 
 
 SECTION IV. 
 
 LIABILITY OF ABUTTING OWNERS. 
 
 § 187. General Liability : As to Ways by Dedication .... 358 
 
 188. Liability for Acts of third Persons 361 
 
 189. As to Excavations 363 
 
 SECTION V. 
 
 EESPECTIVE DUTIES AND LIABILITIES OF MUNICIPALITY AND 
 THIRD PARTIES. 
 
 § 190. General Rule 365 
 
 191. Remedy over in Favor of the Municipality 367 
 
 CHAPTER VII. 
 OF THE MASTER'S OBLIGATION TO HIS EMPLOYEES. 
 
 SECTION I. 
 
 TO PROVIDE SUITABLE PLACES, APPLIANCES, AND AGENTS. 
 
 192. As to Places and Appliances, Generally 371 
 
 193. This a Personal Duty 370 
 
 194.. Employer not answerable for Latent Defects: Illustrations 
 
 of the Rule gyg 
 
 195. Same Subject : Rule applied to Railroads 381 
 
 196. Same Subject : As to Machinery 337 
 
 197. Obligations to provide a suitable Place 39O 
 
 198. Selection of Servants: General Rule 393 
 
ANALYTICAL TABLE OP CONTENTS. XIX 
 
 rAsz 
 
 i 199. Same Subject: Burden of Proof : Presumptions .... 396 
 
 200. Same Subject: Direct Personal Supervision of Employees 
 
 not required, semble 397 
 
 201. Contributing Negligence of Fellow-Servant not to bar Re- 
 
 covery ; Negligence of Third Persons 399 
 
 SECTION II, 
 
 TO INSTRUCT EMPLOYEE. 
 
 § 202. Generally : Illustrations of the Rule 400 
 
 203. Qualifications and Limitations of the Rule : Infant Em- 
 ployees 404 
 
 SECTION ni. 
 
 OF THE DOCTBIKE OF EMPIOTEES' BISK. 
 
 § 204. General Rule 406 
 
 203. Applications of the General Rule 410 
 
 206. Employee does not assume Risk of Injury from hidden 
 
 Defects 414 
 
 207. As to Defects -which the Employee has an Opportunity to 
 
 detect 416 
 
 208. Illustrations of the Principle stated 420 
 
 209. Contrary Authority 424 
 
 210. Employee assumes Risks of Work done voluntarily outside 
 
 the Scope of the Employment 427 
 
 211. Same Subject : Rule relaxed in favor of the Employee . . 430 
 
 212. Promise by the Master to make Appliances safe: Effect of 434 
 
 SECTION IV. 
 
 OF INJURIES CAUSED BY THE NEGLIGENCE OF THE PLAINTIFF'S 
 FELLOW-SEBTANT. 
 
 § 213. Generally, Master not liable 439 
 
 214. Limitations of the Rule 441 
 
 215. Negligence of the Master contributing, he is liable . . . 443 
 
 216. Rule illustrated in Railway Cases 443 
 
 (a) Who are FeUovi- Servants. 
 
 § 217. General Rule, Broad Construction of, in England . . . 448 
 
 218. As to Subdivisions of Employment : Illustrations of the Rule 453 
 
 219. Servants working under Contracts with different Employers 459 
 
XX ANALYTICAL TABLE OF CONTENTS. 
 
 (b) Of the Doctrine of Vice-Principal. 
 
 PASB 
 
 §220. Delegation of Authority: Effect of 461 
 
 221. Vioe-Principal: What constitutes 465 
 
 222. Same Subject : Rule in the Supreme Court of the United 
 
 States 467 
 
 223. Same Subject : Railway Employees 472 
 
 (c) Remedy as between Fellow- Servants. 
 § 224. Negligent Servant liable 475 
 
 SECTION V. 
 
 LIABILITY OF EMPLOYEE EXTEHDED BY STATUTE. 
 
 (a) In Special Cases. 
 
 § 225. In the Case of Railway Corporations 478 
 
 226. Such Statutes not unconstitutional : Enforced by the Fed- 
 eral Courts 482 
 
 (b) Statutes applied to Employers, Generally. 
 
 § 227. The English Employers' Liability Act 484 
 
 228. Interpretation of the Act 487 
 
 229. Same Subject: How far the Act changes the Rule of the 
 
 Common Law 494 
 
 230. Same Subject: Doctrine of " Employees' Risk," how affected 
 
 by the Act : Case of Thomas v. Quartermaiue discussed 492 
 
 231. Same Subject 495 
 
 232. Defect in Ways, Works, Machinery, or Plant, what . . . 498 
 
 283. As to Persons exercising Superintendence 501 
 
 234. Agreement by the Employee not to take advantage of the 
 
 Act : Effect of 506 
 
 INDEX 511 
 
INDEX TO CASES CITED. 
 
 [the figukes refeb to the fagbs.] 
 
 Abbott v. Johnstown, &c. Horse R. B 7, 73 
 
 V. Macfie 120 
 
 Abend v. Terre Haute & Indianapolis B. R 278, 475 
 
 Achtenhagen v. Watertown 269 
 
 Adams v. Iron ClifEs Co. 412, 451, 454 
 
 ». Wiscasset Bank 79, 81 
 
 Adasken W.Gilbert 500,502 
 
 Ahem v. Steele 140 
 
 Alabama &c. Co. o. Pitts 401 
 
 Alabama & V. R. B. v. Davis 170 
 
 V. PhiUips 216 
 
 Alabama G. S. B. B. v. Anderson 211 
 
 ». CarroU 487 
 
 V. Chapman 161 
 
 V. Dobbs 177 
 
 V. Eichie 163, 276 
 
 V. Boach 280 
 
 Alabama Midland B. B. v. Martin 54 
 
 Alaska, The 22 
 
 Alaska Co. v. Whelan 371, 461, 472 
 
 Albert ». Sweet 211 
 
 Albion Lumber Co. v. DeNobra 147, 185 
 
 Albrecht v. Milwaukee & S. E. B 481 
 
 Albro V. Agawam. Canal Co 425, 439, 449 
 
 ». Jaquith 371,476 
 
 Alger V. Kennedy 138 
 
 V. LoweU 339 
 
 Allan V. Steamship Co 67 
 
 AUday v. Great Western Railway 200 
 
 Allen V. Dillingham 64 
 
 r. Hancock 320 
 
 V. Hayward 59 
 
 V. Maine Central B. B 296 
 
 V. BTew Gas Co 396, 462 
 
XXU INDEX TO CASES CITED. 
 
 Allen V. Pennsylvania R. R 298, 304 
 
 V. Smith Iron Co 180 
 
 V. Willard 243 
 
 Allerton v. Boston & Maine R. R 194, 298, 304 
 
 Alexander v. Humber 161 
 
 V. Louisville & Nashville R. R 278, 280, 281, 408 
 
 V. Newcastle 166 
 
 V. Penn. Co 33, 481 
 
 V. Toronto & N. R. R 200 
 
 AUinp V. Mars 308 
 
 AUis V. Day 349 
 
 A'Usop V. Allsop 21 
 
 Allyn V. Boston & Albany R. R 296 
 
 Alston V. Grant 138 
 
 Althorpe v. Wolfe 59 
 
 Alton V. Midland Railway 12, 13, 14, 15, 41, 200 
 
 Altvater v. Mayor of Baltimore 354 
 
 Am. Water Works Co. a. Dougherty 149 
 
 Ames V. Union Railway 4, 11, 12, 476 
 
 Anderson v. Clark 408 
 
 i>. M. & St. P. R. R 33 
 
 V. Mich. Cent. R. R 462 
 
 V. Minnesota & N. W. R. R 415 
 
 V. Nelson Lumber Co 479 
 
 V. Northern Mill Co 277, 402 
 
 w. Sculley 105 
 
 Angus V. Dalton 101 
 
 V. Findlay 123 
 
 Ann V. State 236 
 
 Anne Arundel Commissioners v. Duckett 79, 95 
 
 Anthony v. Adams 85 
 
 Appeal, Standard Manuf'g Co 380 
 
 Appel V. Buffalo, N. Y. & P. R. R 406 
 
 Applebee v. Percy 225 
 
 Appleton V. Nantasket 317 
 
 Archambeau u. N. Y. & N. E. R. R 65 
 
 Arctic Fire Insurance Co. v. Austin 167 
 
 Arkadelphia v. Windham 91 
 
 Arkansas M. R. R. v. Canman 206 
 
 Arkansas Tel. Co. v. Ratteree 184 
 
 Arkeson v. Dennison 442 
 
 Armour v. Hahn 3gi 
 
 Armstrong v. Lancashire & Yorkshire R. R. . . 168 
 
 V. Medbury J31 
 
 Arnold v. Clark I33 
 
 V. Norton 224 
 
 V. San Jose 91 92 
 
 Arrowsmith ». Nashville & D. R. R ! 73 198 
 
 Ashley v. Hart ' ^g-^ 
 
 Ashworth v. Stanwiz 3y^ ^gg 
 
INDEX TO CASES CITED. Xxiii 
 
 Assop V. Yates 424. 
 
 Aston ». Hewen • ■ . , ■ igQ 
 
 Atchison r. Rose 349 
 
 Atchison, Topeka & S. F. R. R. v. Feehan 165 
 
 V. Jones 288 
 
 V. Lindley 286, 427 
 
 V. McClarg 211 
 
 V. Meyers 384, 387 
 
 V. Morgan 217 
 
 V. Mulligan 474 
 
 V. Reesman , . 383 
 
 V. Townsend 219 
 
 Atkins V. Field 476 
 
 Atkinson v. Abraham 248 
 
 Atlanta v. Perdue 314 
 
 Atlanta R. R. v. Dickerson 293 
 
 Atlantic & D. R. R. v. Ironmonger 170 
 
 V. Redger 303' 
 
 Atlantic & Pao. R. K. v. Laird 198 
 
 Atlantic & R. A. L. R. R. v. Ayres 165 
 
 Atlantic Transp. Co. v. Coneys 55 
 
 Atlantic & W. P. R. v. Conder 53 
 
 "• Wyly 165 
 
 Augusta V. Cone 84 
 
 Augusta R. R. v. Glover 293 
 
 Aurora ». Colshire 324, 339 
 
 V. Hillman 239 
 
 V. Rockabrand 340 
 
 Austin V. Boston & Maine R. R 413 
 
 V. Great Western Railway 197, 200, 285 
 
 »• Ritz 238, 266, 311 
 
 Austin & Northwestern R. R. v. Beatty 238 
 
 Avery v. Meek I44 
 
 Avilla V. Nash 401 
 
 Aycock V. Georgia, &o. R. R 74 
 
 Ayres v. Hammondsport 348 
 
 Babcock v. Old Colony R. R 273, 275, 403, 464, 468 
 
 Babson v. Rockport 322, 329 
 
 Bahr r. Lombard 180 ' 
 
 Bahrenburgh v. Brooklyn R. R 239 
 
 Bailey v. Boston 366 
 
 V. Bussing 369 
 
 V. Mayor of New York 77, 86, 89 
 
 V. Rome, W. & O. R. R 386 
 
 Baker v. Bolton 18, 19, 21 
 
 V. Boston 63 
 
 V. Flint & Pere Marquette R. R , . . . 270 
 
 V. Grand Rapids 34I 
 
 V. Manhattan Railway Co 290 
 
XXiv INDEX TO CASES CITED. 
 
 Baker v. Portland 253 
 
 Balchu. Ha»s ■ ^^S 
 
 Baldwin V. Fairhaven R. R. 214 
 
 V, Greenwood Turnpike Co 339 
 
 Balhoff u. Mich. Cent. R. R 462 
 
 Ball V. El Paao 244, 310 
 
 Ballard w.ChiQ. R. I, & Pac. R. R 433 
 
 V. Hitoboook Manuf . Co 381 
 
 Balls V. Detroit Leather Co 408 
 
 Baltimore v. Baltimoje & Ohio R. R 104 
 
 V. O'Dqnnell 327 
 
 V, War 394 
 
 Baltimore City R. R. v. McDonald 175 
 
 j;, Nugent 184 
 
 Baltimore Elevator Co. v. Neal 180, 454 
 
 Baltimore Traqtioa Co. v. Appel 159 
 
 V. Helms 302 
 
 - V. State 293 
 
 Baltimore &; C, B, R. ». Rowan 414 
 
 Bajtimore & L. Turnpike Co. v. Caswell 312 
 
 Baltimore & Ohio R. R, v. Anderson 218 
 
 V. Baugh 475 
 
 V. Bloober 53 
 
 V. Boteler 116 
 
 V. Camp 207, 481 
 
 V. Campbell 458 
 
 r, Colvin 298, 412 
 
 V. Conoyev 303 
 
 V. Henthorne 394, 395 
 
 t;. Myers 286, 287 
 
 ». Rambo 73 
 
 D.Rose 358 
 
 V. State .... 106, 159, 166, 171, 177, 198, 213, 247, 268, 455 
 
 V. Strickler 413 
 
 V. Swann 184 
 
 V. Traiuor 175 
 
 Baltimore & Potomac R. R. v. Jones 149 
 
 V. Maokey 384, 416 
 
 V. Swann 288 
 
 Bamberger v. Citizens' Street Railway 177 
 
 Bancroft v. Boston & Worcester R. R 23, 24, 291 
 
 Banks v. Highland Street Railway 253 
 
 Banning v. Chic. R. I. & Pac. R. R. 166, 297 
 
 Bannon v. Lutz 414 
 
 Barber v. Essex 307 
 
 V. Roxbury 33O, 335, 336 
 
 Barber Asphalt Co. v. Odasz 387 
 
 Barclay v. Boston 357 
 
 Bard v. Penn. Traction Co 294 
 
 Barden v. Felch 48 
 
INDEX TO CASES CITED. XXV 
 
 Bare v. Pennsylvania R. R 297 
 
 Barker v. Savage « 257 
 
 Barkley v. Missouri Pacific R. R 112 
 
 Barnes v. District of Columbia 79, 97, 98 
 
 V. Means 235 
 
 V. Newton ' 352 
 
 V. Shreveport City R. R 175 
 
 V. Sowden 308 
 
 V. Ward Ill, 115, 363 
 
 Barnhart v. Chic. M. & St. P. R. R 149 
 
 Barnowski v. Nelson 184 
 
 Barnum v. Terpenning 146 
 
 Barrett v. Hammond 352 
 
 V. Maiden & Melrose R. R 46, 228 
 
 «. Third Avenue R. R 167 
 
 Barron v. Chic. St. P. &e. R. R 208 
 
 V. Detroit 86 
 
 Barry v. Hannibal & St. Jo. R. R 280 ' 
 
 ». McGhee 483 
 
 ». New York Central & H. R. R. R 104,121,152' 
 
 V. St. Louis 56 
 
 V. Terkildsen 103, 307 
 
 Barstow v. Old Colony R. R 274 
 
 Barth v. Kansas City El. R. R 213 
 
 Bartlett v. Crozier 77, 79 
 
 V. New York & S. B. F. & H. Trans. Co 295 
 
 Barton v. Kirk 247 
 
 ». McDonald 327,341,367 
 
 V. Syracuse 86 
 
 Bartonshill Coal Co. v. McGuire 439, 445 
 
 «. Reid 439 
 
 Bass V. Prov. & Worcester R. R 251 
 
 Bassett v. St. Joseph 339 
 
 Bast V. Leonard 349 
 
 Bates V. Old Colony R. R 199 
 
 Battishill v. Humphreys 209, 217 
 
 Batty V. Duxbury 327, 330 
 
 Banguss v. Atlanta 93 
 
 Bayley v. Manchester, S. & L. R. R 46 
 
 Baylor v. Delaware, L. & W. R. R 413 
 
 Baxter v. Winooski Turnpike Co 79 
 
 Beach v. Bay State Steamboat Co 33 
 
 Beal V. Lowell & Dracut Street Railway 294 
 
 V. South Devon Railway 148 
 
 Beall V. Athens 335, 337 
 
 Beaulieu v. Portland Co. 393, 439 
 
 Bebericb v. Ebach 55 
 
 Beck V. Carter 109, 116, 363, 364 
 
 V. Curtis 128 
 
 Becke v. Missouri Pacific R. R 169, 218 
 
XXVI INDEX TO CASES CITED. 
 
 Beckman v, Consol. Coal Co 407 
 
 BedeU v. Berkey 265 
 
 Bedford v. Neal 308 
 
 Beehler v. Daniels 130 
 
 Beem v. Tama Elect. Co 300 
 
 Beers v. Housatouic E. R 162, 241 
 
 Beeson v. Busenbark 65 
 
 V. Green Mountain Mining Co 470 
 
 Behm v. Ormond 392 
 
 Beiseigel v. New York Central R. K 297 
 
 V. Delaware, L. & W. R. R 237 
 
 Belair v. Chicago & Northwestern R. R 436 
 
 Belgenland v. Jansen 150 
 
 Belk V. People . 158, 323 
 
 Bellefontaine & Indianapolis R. R. v. Snyder 121, 175, 177 
 
 Bellows V. Sackett 139 
 
 Bellville Stone Co. v. Mooney 436 
 
 Beltz V. Yonkers 833 
 
 Belvin v. Richmond 336 
 
 Bemis v. Arlington 322 
 
 V. N. O. City, etc., Railway 288 
 
 Benage v. Lake Shore & M S. R. R 276 
 
 Benden v. Manning 137 
 
 Benefactor, The 453 
 
 Ben Flint, The 454 
 
 Benham v. Taylor 417 
 
 Bennett v. Button 189 
 
 V. Kelly 359 
 
 V. Louisville & N. E. R 101, 132 
 
 V. New Jersey R. R. & Transportation Co 169 
 
 Benson v. Bait. Traction Co 131 
 
 V. Central Pacific R. R 148 
 
 V. Goodwin 450, 453 
 
 V. Suarez 363 
 
 Benton v. Chicago R. I. & Pac. R. R 269 
 
 V. City Hospital 66 
 
 V. North Carolina R. R 74 
 
 Benzing v. Steinway 392 
 
 Berberich v. Ebach 55 
 
 Berea Stone Co. v. Kraft 470 
 
 Bergmann v. St. Louis Iron Mt. & So. R. R 219 
 
 Bergneau v. St. Louis I. M. & S. R. R 210 
 
 Bergquist v. Minneapolis 450 
 
 Bernina, The 168, 169 
 
 Berning v. Medart 388 
 
 Bertelsen v. Chicago, M. & St. P. R. E 263, 298 
 
 Besozzi V. Harris 223 
 
 Bessex v. Chicago & Northwestern R. R 377 
 
 Betts V. Gibbins ggg 
 
 ». Gloversville .' . '333,353 
 
INDEX TO CASES CITED. XXVU 
 
 Biddle v. Hestonville Passenger R. R 122 
 
 Bieling v. Brooklyn 83, 315, 344, 349 
 
 Bieseigel v. N. Y. Cent. R. R 237 
 
 Bigelow 0. Randolph 79, 81, 314 
 
 V. West End St. Railway 194 
 
 V. Weston 338 
 
 BiggS'v. Huntington 335 
 
 Billings V. Worcester 334, 347, 353 
 
 Bills V. Kaukana 340 
 
 Binks V. South Yorkshire Railway 104, 116, 125, 364 
 
 Birch V. Pitts. C. C. & St. L. R. R 22 
 
 Bird V. Great Northern R. R 180 
 
 V. HolbKJok Ill, 164 
 
 Birge v. Gardiner 123, 175, 241, 270 
 
 Birkett v. Knickerbocker Ice Co 173 
 
 Birmingham v. McCraiy 327 
 
 C.Starr 308 
 
 17. Tayloe 307 
 
 Birmingham & C. Co. v. Bowers 113 
 
 Birmingham El. R. R. J). Clay 291 
 
 Birmingham Railway v. AUen 495 
 
 Bisaillon v. Blood 175 
 
 Bishop V. Schuylkill Township 333 
 
 BisseU V. New York Central R. R 200, 325 
 
 Bitner v. Utah Central R. R 187, 219 
 
 Bittle V. Camden & A. R. R 219 
 
 Bittner v. Crosstown R. R 215 
 
 Bjbjian v. Woonsocket Rubber Co 401 
 
 Blackburn v. Minter 2 
 
 Blackman v. Simmons 224 
 
 V. Toronto Street Raii\ray 128 
 
 Blackmore v. Exeter Railway 105 
 
 BlackweU v. Lynchburg & D. R. R 228 
 
 V. St. Louis, I. M. & S. R. R 303 
 
 Blaikie v. Stembridge 45 
 
 Blair v. Erie Railway 198 
 
 Blaiser v. New York, L. E. & Western R. R 148, 299 
 
 Blake v. Ferris 56 
 
 V. Maine Central R. R 449 
 
 V. Midland Counties Railway 29, 32 
 
 V. Ranous 135 
 
 Blakeslee v. Consol. St. Railway 302 
 
 Blanchard v. Lake Shore & Mich. So. R. R 114 
 
 Blanchette v. Border City Mills 274 
 
 Blankenship v. Ches. & Ohio R. R 129 
 
 V. Galveston, H. & S. A. R. R 210 
 
 Blazenic v. Iowa Coal Co 372 
 
 Blazinski v. Perkins 410, 439 
 
 Bleakely v. Prescott 345 
 
 Blenkirow v. Great Central Gas Co 232 
 
XXVIU INDEX TO CASES CITED. 
 
 Blessington v. Boston 314, 327 
 
 Bliss V. Deerfield 323 
 
 I,. South Hadley 173, 328 
 
 Blithe 0. Topham 129, 364 
 
 Blodgett V. Bartlett 292 
 
 V. Boston 328 
 
 Blomquist v. Great N^orthern B. B 479 
 
 Blood V. Hubbardston 352 
 
 Bloomfield v. Burlington & W. K. R 299 
 
 Bloomington v. Bay 94 
 
 V. Perdue 258 
 
 Bloor V. Delafield 354 
 
 Blount V. Grand Trunk Railway 303 
 
 Bloyd V. Railway Co 474 
 
 Blumenthal v. Craig 402 
 
 Bluudell V. Catterall 364 
 
 Blunn V. Delaware, L. & W. R. B 237 
 
 Bly V. Whitehall 308 
 
 Boatwright v. Eastern B. R 474 
 
 Bodge i>. Philadelphia 87 
 
 Boehm v. Duluth, &c. R. R 46 
 
 Boerth v. West Side R. R 302 
 
 Bogenschut v. Smith 436 
 
 Bohn V. Havermeyer 406 
 
 Bohn Manuf. Co. v. Erickson 401, 414 
 
 Boland'v. Mississippi R. R I75 
 
 Bolch V. Smith 131 
 
 Bolingbrooke v. Swindon 50 
 
 Bollinger v. St. Paul & D. R. R 215, 217 
 
 Bomboy v. New York Central & H. R. R. R 296 
 
 Bond V. Smith 248, 363, 365 
 
 Bonner v. Grtimbach 184 
 
 V. Moore 388 
 
 Boone County v. Mutohler 171 , 350, 352 
 
 Booth V. Boston & Albany R. R 444, 445^ 447^ 459 
 
 V. Merriam I33 
 
 Boothbay v. Boston & Maine R. R 208 
 
 Borck V. Mich. Bolt & Nut Co 146 
 
 Borgman v. Omaha & St. L. R. R 473 475 
 
 Borman v. Milwaukee 411 
 
 Boss V. Litton 269 
 
 Boston V. Worthington 365 
 
 Boston & Albany R. R. v. Shanley 230, 234 
 
 Boston & Maine R. R. v. McDuffey 37 
 
 Bottoms V. Seaboard & R. R. R 112 175 
 
 Bouga V. Weare 308 
 
 Boulder w. Niles 94 353 
 
 Boulter v. Webster '29 
 
 Bouknight v. Charlotte, &c. R. R ] 290 
 
 Bourget v. Cambridge 319 
 
INDEX TO CASES CITED. , Xxix 
 
 Bou-wmeester v. Giand Rapids & I. B. R 113, 300 
 
 Bowe 17. Hunking 133 
 
 Bowen ». Flanagan 222 
 
 Bower v. Feate 101, 326 
 
 Bowers v. Conn.Eiver K. R 501 
 
 V. Union Pacific R. R 372, 384 
 
 Bowes V. Boston 25, 333, 357 
 
 Bowler v. O'Donnell 44 
 
 Bowman v. Boston 323 
 
 Bowser v. Wellington 261 
 
 Boyce v. Anderson 189 
 
 Boyd V. Springfield 324 
 
 Boyle V. New York & N. E. R. R 275, 413 
 
 Brabbitts v. Chicago & Northwestern R. R 377, 462 
 
 Brackenridge v. Fitchburg 311 
 
 Bradbury v. Keystone Coal Co 470 
 
 Bradford v. Boston & M. R. R 195 
 
 Brady v. Consol. Gas Co 232 
 
 V. Lowell 91, 355 
 
 V. Toledo, Ann Arbor & N. M. R. R 305 
 
 Brand v. Schenectady & Troy R. R 237, 394 
 
 Branham v. Central B. R 122 
 
 Brann v. Chicago, R. I. & Pac. R. R 468, 469 
 
 Brannan v. Kokomo, G. & J. G. R. R 169 
 
 Branner v. Stormont ; 235 
 
 Bransom v. Labrot 127 
 
 Brass v. Maitland 230 
 
 Brazil Block Coal Co. v. Gaffney 409 
 
 Breckenfelder v. Lake Shore & Mich. So. R. R 297 
 
 Breen v. Field 78 
 
 Bremner v. Williams 189 
 
 Brennan v. Del. L. & W. R. R 300 
 
 V. Gordon 400, 401, 406 
 
 Bretherton v. Wood 3, 5, 12, 41 
 
 Brezee v. Powers 104, 359, 361 
 
 Brice V. Bauer • 225 
 
 Brick V. Bosworth 488 
 
 BriekeU v. New York Central & H. R. R. R 170, 296 
 
 Brickner v. New York Central R. R 393 
 
 Bridge v. Grand Junction Railway 149, 162, 163, 242 
 
 Brldger v. Ashville & Spartanburg R. R 126, 151, 152 
 
 Bridges v. North London Railway 222, 291 
 
 V. Tennessee Coal Co 495 
 
 Briggs V. Taylor 148 
 
 Bright V. Bamett 54 
 
 Brinkley Car Co. w. Cooper 127 
 
 Britton p. Cummington 329 
 
 V. Great Western Cotton Co 424 
 
 Broburg v. Des Moines 345 
 
 Brock V. Copeland 226 
 
XXX INDEX TO CASES CITED. 
 
 Brockville v. Arthurs 368 
 
 Brodeur v. Border City Mills 414, 444, 461 
 
 V. Valley Falls Co 408, 473 
 
 Bronson v. Oakes 179, 288 
 
 V. Soutlibury 175 
 
 Brooklyn v. Brooklyn City R. R 365 
 
 Brooks V. Boston & Maine R. R 260, 291 
 
 V. Bufealo & Niagara Falls R. R 186 
 
 V. Hannibal & St. Jo. R. R 166 
 
 V. Old Colony R. R 191 
 
 V. Somerville 349, 355 
 
 Brothers v. Carter 396 
 
 Brothei-ton v. Manhattan Beach Co 163 
 
 Brouilette v. Conn. River R. R 500 
 
 Brow V. Boston & A. R. R 45 
 
 Brown v. Accrington Co 388 
 
 V. Central Pacific R. R 179, 475 
 
 V. European & N. A. R. R 152, 172, 269 
 
 V. French 257 
 
 V. Gilchrist 371 
 
 V. Griffin 219 
 
 V. Jarvis Eng. Co 50 
 
 V. Kendall 145 
 
 V. Maxwell 235, 393, 441 
 
 V. McGregor 170 
 
 V. Rome, W. & O. R. R 218 
 
 V. Sherer 270 
 
 V. Sullivan 149 
 
 V. Texas & Pacific R. R 296 
 
 Brown Commissioners v. Butt 79 
 
 Brownell v. Flagler 237 
 
 Browning v. Springfield 94, 98 
 
 Bruce v. Union Railway 293 
 
 Brunker v. Cummins 142 
 
 Brunswick v. Strilka 373 
 
 Brusso V. Buffalo 365 
 
 Bryan v. Chicago, R. I. & Pac. R. R • . . . . 52 
 
 Bryant v. Rich 52, 53 
 
 Buchanan v. Barre 79, 87 
 
 V. Chicago, M. & St. P. R. R 45 
 
 Buck V. Biddeford 307, 354, 355 
 
 Bucklew V. Central Iowa R. R 482 
 
 Buckley v. Gutta Percha & Rubber Manuf'g Co 405 
 
 V. Leonard 224, 225 
 
 V. Old Colony R. R 251 
 
 Buckner v. Richmond & D. R. R 292 
 
 Badd V. Meriden El. R. R 254 
 
 Buddin v. Fortunato 61 
 
 Buel V. New York Central R. R 18, 257 
 
 Buesohing i'. St. Louis Gas Light Co 358 
 
INDEX TO CASES CITED. XXXI 
 
 Buffalo V. Holloway 365 
 
 Bunker Hill, &c. Co. v. Schmelling 471 
 
 Bunnell v. Berlin Bridge Co 148 
 
 Bunting v. Pennsylvania R. R 211 
 
 Burden v. Lake Shore & M. S. R. R 260 
 
 Burgess v. Davis Sulphur Co 403 
 
 Burgrin v. Richmond 292 
 
 Burgundia, The 172 
 
 Burhens o. Dry Dock, &c. Railway 301 
 
 Burke v. Anderson 441 
 
 V. Dillingham 64 
 
 V. Parker 231 
 
 V. Witherbee 390 
 
 Burkie v. Nevr York Dry Dock Co 237 
 
 Burnett v. Penn. R. R 203 
 
 Bumham v. Bowen 65 
 
 Bums V. Chicago, M. & St. P. R. R 148, 205, 248 
 
 V. Washburn 500 
 
 Burrell Township v. TJncapher 167 
 
 Burrows v. March Gas light Co 167 
 
 Burt V. Boston 331, 365 
 
 Barton t- . l^Iissouri Pacific R. R 414 
 
 V. West Jersey Ferry Co 190, 295 
 
 0. Western & At. R. R 130 
 
 Busch V. Buffalo Creek R. R 444 
 
 Bush V. Steinman 59 
 
 Bushby v. New York, L. E. & W. B. R 468, 469 
 
 Bussellt). Steuben 79 
 
 Butler V. Ashworth 77 
 
 V. Gettysburg & H. R. R 296 
 
 V. Manhattan R. R 18 
 
 V. St. Paul & D. R. R 291 
 
 Butterfield v. Boston 332 
 
 V. Forrester 162, 180, 237, 307 
 
 V. Western R. R 249, 296 
 
 Button V. Hudson River R. R 242 
 
 Buxondin v. Sharp 223 
 
 Buxton V. Northeastern Railway 68 
 
 Buzzell V. Laconia Manuf g Co 406, 417, 449 
 
 Byrne v. Boadle 183 
 
 V. Kansas City, 8tc. R. B 74, 252 
 
 V. New York Central & H. R. R. R 104, 210, 219 
 
 Byrnes v. New York, L. E. & W. R. R 469 
 
 Byron v. New York, &c. Telegraph Co 393, 407 
 
 Cadden o. Am. Steel Barge Co 453 
 
 Cadwell v. Amheim 150 
 
 V. Murphy 162 
 
 CahiU o. Chic, M. & St. P. R. R 113 
 
 V. Cincinnati, &c. B. R 169 
 
XXXll INDEX TO CASES CITED. 
 
 Cahoon v. Chic & N. Y. R. R 207 
 
 Caldwell V. Brown 29, 394 
 
 V. Murphy 162 
 
 Callahan v. Bean 239 
 
 Callan v. Bull 466 
 
 Callaway v. Waters 113 
 
 Calumet, I. & S. Co. v. Martin 165 
 
 Camden & Amboy R. R. v. Burke 189, 198 
 
 Camden, &o. Railway v. Preston 312 
 
 Cameron w. Lystrom 461 
 
 Camp V. Wardens of Church of St. Louis 43 
 
 Campbell v. Atlantic R. R 165 
 
 V. Boyd 104 
 
 V. Kalamazoo 91, 315 
 
 V. Lunsford 110 
 
 V. Stillwater 160 
 
 Canadian Fac. R. R. v. Johnson 474 
 
 Canavan v. Oil City 341 
 
 Candee v. Kansas City Railway 153 
 
 CandifE v. Louisville, N. O. & T. R. R 49, 253 
 
 Canfleld v. Asheville St. Railway 244 
 
 V. Baltimore & Ohio R. R 200 
 
 V. Chic, R. I. & Pac R. R 42 
 
 CanifE v. Blanchard Navigation Co 105 
 
 Cannavan v. Conkling 141 
 
 Canterbury i'. Boston 356 
 
 Cantwell v. Appleton 308, 350 
 
 Carberry v. Sharon 357 
 
 Carbine v. Bennington & Rutland R. R 406, 414, 426 
 
 Card V. Case 224 
 
 Carey v. Arlington Mills 266 
 
 V. Berkshire R. R 18, 30 
 
 V. Sellers 411 
 
 Carlin v. Driscoll 353 
 
 Carlson v. Northwestern Tel. Co 468 
 
 D. Stocking 60 
 
 Carmody v. Boston Gas Light Co 180 
 
 Carney v. Shanley 234 
 
 Caron w. Boston & A. R. R 412,501,504 
 
 Carpenter v. Blake 235 
 
 V. Boston & A. R. R 195, 214 
 
 V. Mexican National R. R. 414, 469 
 
 Carr v. North River Construction Co 413 
 
 Carrigan v. Washburn & Moen Co 420 
 
 Carrington v. Louisville & Nashville R. R 113, 165, 217 
 
 V. St. Louis 354 
 
 Carroll v. East Tennessee, V. & G. R. R 273, 280 
 
 V. Minnesota Valley R. R 257, 460 
 
 V. New York, N. H. & H. R. R 282 
 
 V. Staten Island R. R 254 
 
INDEX TO CASES CITED. XXXUl 
 
 Carson v. Ottumwa 336, 343 
 
 Carstairs v. Taylor 133, 136 
 
 Carter i\ Columbia & Greenville R. R 121 
 
 V. Drysdale 488 
 
 V. Oliver Oil Co 415 
 
 V. Towne 228, 230 
 
 Carterville v. Cook 167, 318 
 
 Carver v. Detroit & S. Plank Road Co 149 
 
 Casey v. Louisville & Nashville R. R 457 
 
 V. Maiden 270 
 
 V. Smith 172 
 
 Cashman v. Chase 465, 503 
 
 Cassedy v. Stoekbridge 338 
 
 Cassida v. Oregon Railway & Nav. Co 210, 256, 297 
 
 Cassidy v. Maine CentraJ, R. R 449 
 
 Castle V. Parker 110 
 
 Caswell V. Boston & Worcester K. R 261 
 
 Catawissa R. R. v. Armstrong 148, 165, 459 
 
 Catlett V. Railway Co 127 
 
 V. Young 251 
 
 Catts V. Simpson 141, 343 
 
 Cauley v. Pittsburg, C. & St. L. R. R 118, 271 
 
 Cayford v. "Wilbur 235 
 
 Cayzer v. Taylor 145, 371, 399, 444 
 
 Cazneau v. Fitchburg R. R 213 
 
 Central Branch Union Pacific R. R. v. Henigh .... 122, 126, 149 
 
 V. Nathan 149 
 
 Central R. R. v. Brantley 147 
 
 V. Eeegan 451 
 
 V. Lanier . • 478 
 
 V. Mitchell 478 
 
 V. Peacock 53 
 
 V. Phinazee 74, 
 
 V. Rouse 149 
 
 V. Small 244 
 
 V. Smith 406 
 
 Central R. R. & Banking Co. v. Dickson 407 
 
 V. Gleason 165 
 
 V. Kent 402 
 
 V. Kitchens 278 
 
 V. Letcher 292 
 
 V. Mitchell 478 
 
 V. Smith 300 
 
 Central R. R. of Georgia v. Ryles 280 
 
 Central Trust Co. v. Wabash, St. L. & P. R. R 269 
 
 Centralia v. Scott 94, 311 
 
 Cesar v. Karutz 135 
 
 Chadron v. Glover 325, 336 
 
 Chaffee v. Boston & Lowell R. R 222, 288 
 
 Chamberlain v. Chandler 52 
 
 c 
 
XXXiv INDEX TO CASES CITED. 
 
 Chamberlain v. Enfield 224 
 
 V. Lake Shore & M. S. R. R 196 
 
 V. Oshkosh 345 
 
 Champaign v. McGinnis 331 
 
 Chandler v. N. Y., N. H., & H. R. R 34 
 
 V. Worcester Mut. Life Ins. Co 147 
 
 Chandos, The 454 
 
 Chapman ». Erie R. R 444,466 
 
 V. Milton 349 
 
 V. New Haven R. R 189 
 
 V. Reynolds 484 
 
 V. Rothwell 102, 103, 143 
 
 Chappell V. Gregory 133 
 
 Charlock B. Freel • 367 
 
 Chartiers v. Langdon 95 
 
 Chartiers Turnpike v. Phillips 167 
 
 Chase v. Lowell 381, 349 
 
 V. Maine Central R. R 296, 306 
 
 Chattanooga R. & C. R. R. v. Whitehead 74 
 
 Chautauqua Lake Ice Co. v. McLucky 150 
 
 Cheeney v. Ocean Steamship Co 474 
 
 Chenery v. Fitchburg R. R. . . . • 107 
 
 Chesapeake & Ohio R. R. v. Cleaves 215 
 
 V. Clowes 288 
 
 Chestnut Hill, &c. Turnpike Co. v. Rutter 62 
 
 Chicago V. Babcock 39, 307 
 
 V. Farrell 349 
 
 V. Langlass 314, 350 
 
 V. Major 29, 271 
 
 V. McGiven 333, 334, 345, 346 
 
 V. McLean 239, 262 
 
 V. Robbins 366, 368 
 
 V. Seben 84 
 
 V. Starr 328, 329 
 
 Chicago Brick Co. v. Reinneiger 404 
 
 V. Sobkowick 436 
 
 Chicago Drop Forge Co. v. Van Dam 429 
 
 Chicago Gas Co. v. Meyers 40 
 
 Chicago, &c. R. R. v. Swett 383 
 
 Chicago & Alton R. R. v. Amol 213 
 
 V. Dillon 217 
 
 V. Dunn 378 
 
 u. House 443 
 
 V. Fietsam 165 
 
 ». Fisher 287 
 
 V. Keefe 475 
 
 V. KeUy 215, 451, 457, 460 
 
 V. Kerr 381 
 
 V. Logue 172 
 
 V. McLaughlin 122 
 
INDEX TO CASES CITED. XXXV 
 
 Chicago & Alton R. R. ». Murphy 449, 450 
 
 V. Murray 151 
 
 O.Nelson 209 
 
 V. Pillsbuiy 51 
 
 V. Sandeis 215 
 
 V. Springaeld & Northern R. R 333 
 
 V. States 382 
 
 Chicago & E. I. R. R. v. Tilton 210 
 
 Chicago & E. R. R. v. Flexman 52, 192 
 
 Chicago & Great Eastern R. R. v. Harney 394 
 
 Chicago & I. R. R. v. Lane 217 
 
 Chicago & Northwestern R. R. v. Bayfield 432, 434, 443 
 
 V. Chapman 146 
 
 V. Dunleavey 215 
 
 „. GiUison 426, 443 
 
 o. Hansen . . . .' 304 
 
 V. McLaughlin 482 
 
 V. Moranda 449, 451, 453 
 
 V. Sweet 448 
 
 V. Tripkosh 257 
 
 V. Ward 400, 424 
 
 Chic^o & Rock Island R. R. v. Whipple 72 
 
 Chicago & W. I. R. R. v. Ptacek 303 
 
 Chicago, Burlington & Q. R. R. v. Anderson 215, 383 
 
 ». Blank 474 
 
 o. Clark 373, 443 
 
 V. Epperson 50 
 
 V. Hague 251 
 
 V. Honey 179 
 
 e. Howard 66 
 
 V. Landauer . . • 149, 290 
 
 o. McLallan 470 
 
 V. Morkenstein 114 
 
 V. Perkins • 218 
 
 V. Spirk • 179 
 
 V. Van Patten 165 
 
 ». Warner 165,381,384 
 
 V. West 44 
 
 0. Young 470 
 
 Chicago City Railway v. Robinson 175 
 
 o. Rood 184 
 
 V.Wilcox 151,175 
 
 Chicago Dredging, &c. Co. v. McMahon 450 
 
 Chicago, K. & W. B. R. v. WatHns 61 
 
 Chicago, Milwaukee & St. Paul R. R. v. Carpenter .... 262, 383 
 
 r. Elliott 155 
 
 r. Harper 190,205 
 
 o. Mason l"** 
 
 V. Myers 283 
 
 B. Ross 461, 472, 473, 474, 475 
 
XXXVl INDEX TO CASES CITED. 
 
 Chicago, Milwaukee & St. Paul R. K. v. Wilson 296 
 
 Chicago, P. & St. L. B. K. v. Lewis 215 
 
 Chicago, Rock Island & Pacific R. B. v. Caulfield 219 
 
 V. Dignan 258, 298 
 
 V. Doyle 393 
 
 V. Eininger 269 
 
 V. Houston 296 
 
 V. Linney 384 
 
 V. McCarthy 72 
 
 V. McCarty 420 
 
 V. Pounds 296 
 
 Chicago, St. Louis, & Pacific R. R. v. Holdredge 46 
 
 V. Hutchinson 239 
 
 V. Spilker 171 
 
 Chicago, St. P., &c. R. R. v. Davidson 44 
 
 Chicago West Division Railway v. Ryan 164 
 
 Chidsey v. Canton 79, 316 
 
 Child V. Boston 88 
 
 Chilton V. St. Joseph 308 
 
 Chisholm v. Knickerbocker Ice Co ■ . 311 
 
 V. State 249 
 
 Choate v. Mo. Pac. R. R 287 
 
 Chope ». Eureka 91, 92, 340 
 
 Christian v. Columbus & R. R. R 47 
 
 V. Erwin 165 
 
 V. niinois Cent. R. R 112 
 
 Christie v. Griggs 189 
 
 Chrystal v. Troy & Boston R. B 173 
 
 Church V. Chic, M. & St. P. R. R 427 
 
 Church of the Ascension v. Buckhart 62, 358 
 
 Cincinnati v. Stone 334 
 
 Cincinnati, H. & D. R. R. v. Butler 241, 305 
 
 V. McMuUen 241, 371, 377, 400, 456, 462, 469 
 
 Cincinnati, I. & St. L. , &o. R. R. v. Howard ' 296 
 
 V. Lang 277 
 
 Cincinnati, N. O. & T. P. R. R. v. Clark 458 
 
 Cincinnati Street Railway v. Snell 301 
 
 Circleville v. Neuding 101, 327 
 
 Ciriack o. Merchants' Woolen Co 404, 405 
 
 Citizens' Passenger R. R. v. Retcham 166 
 
 City of Alexandria, The 453^ 454 
 
 City of Mackinac, The 38 170 
 
 City of New York ». Sheffield '334 
 
 City of Norwalk, The 38 
 
 City Railway v. Lee 288 
 
 City & Suburban R. B. v. Moores 60 
 
 Clampite. Chic, St. P., &c. R. B 106 
 
 Clancy v. Byrne 140 
 
 Clapp V. Minneapolis & St. L. B. B 410 
 
 Clare p. N. Y. & N. E. B. E ] [ \ * 180 
 
INDEX TO CASES CITED. XXXVU 
 
 Clark V. Austin 367 
 
 t. Barrington 311, 320 
 
 V. Boston & Maine R. R 186, 187, 216 
 
 V. Corinth _ 334 
 
 V. Faxton 198 
 
 V. Hughes 474 
 
 t>. Koehler 48 
 
 V. Manchester 87, 91, 117, 119, 329 
 
 V. Merchants' & Miners' Transportation Co 487 
 
 V. Missouri Pacific R. R 217, 296 
 
 r. Richmond & Danville R. R 413 
 
 V. Washington 63 
 
 Clarke v. Holmes 273, 279, 407, 425, 436, 494, 497 
 
 V. Rhode Island Electric Lighting Co 150 
 
 V. Richmond 119, 127, 329 
 
 Clarkson v. Musgraye 488 
 
 Clayards v. Dethick 242 
 
 Clayburg v. Chicago 94, 98 
 
 Clements v. Louisiana Gas & El. Co 145, 241 
 
 Cleveland v. Bangor Street R. R 334 
 
 t'. New Jersey Steamboat Co 190, 193 
 
 V. St. Paul 325, 349 
 
 V. Spier 232, 427 
 
 Cleveland & Pittsburg R. R. v. Rowan 29 
 
 Cleveland & P. & A. R. R. v. Curran 202 
 
 Cleveland, C. & C. R. R. v. Keary 474 
 
 V. Terry 266 
 
 Cleveland, C. C. & I. R. R. v. Keely 210 
 
 V. Phillips 147, 259 
 
 V. Schneider 303 
 
 V. Wynant 159, 210 
 
 Cleveland, C. C. & St. L. R. R. v. Baddeley 298 
 
 V. Brown 451, 472 
 
 V. Miller 301 
 
 V. Walter • 413 
 
 Cleveland Rolling Mill v. Corrigan 151, 400 
 
 Cleves r. Willoughby 133, 134 
 
 Clifford r. Atlantic Cotton Mills 142 
 
 V. Denver, St. P. & P. R. R 191 
 
 Cline V. Crescent City 94 
 
 Clough i>. Hoffman 402 
 
 Clow B. Pittsburg Traction Co 185 
 
 Clowdis V. Flume «e Nav. Co 224 
 
 Clussman t>. Long Island R. R 295 
 
 Coal Run Coal Co. v. Jones 427 
 
 Coan V. Marlborough 84, 88 
 
 Coates V. Boston & Maine R. R 384 
 
 V. Canaan 324 
 
 Cockerham v. Nixon 223 
 
 Cockle V. London & Southeastern Railway 220 
 
XXXVIU INDEX TO CASES CITED. 
 
 Codner v. Bradford . . 325 
 
 Cody V. New York & N. E. K. R 282, 290 
 
 Coe V. Wise 87 
 
 Coffee V. New York, N. H. & H. B. K 469, 501 
 
 Coggs V. Bernard 137 
 
 Coggswell V. Lexington 331, 336 
 
 Cohea v. CofEeeville 309 
 
 Coins V. Chicago, Rock Island & Fac. R. R 409 
 
 Colchester v. Brooks 230 
 
 Cole V. Goodwin 198 
 
 V. Nashville 228 
 
 Golegrove v. New Haven & Harlem R. R . . 162, 282 
 
 Coleman v. New York & New Haven R. R 48, 169 
 
 V. Wilmington, C. & A. R. R 381, 474 
 
 Colgrove ». H. & N. R. R 162 
 
 V. Smith 54 
 
 Collins V. Albany & Schenectady R. R 286 
 
 V. Barrow 133 
 
 V. Burlington, C. R. & N. R. R 304 
 
 V. Dodge 309 
 
 V. Long Island R. R 298 
 
 V. New York, N. H. & H. R. R 274 
 
 V. South Boston R. R 172 
 
 Collis V. Selden 13 
 
 CoUyer v. Pennsylvania R. R 439 
 
 Colorado Electric Co. v. Lubbers 429 
 
 Colton V. Mechanics' Iron Co 183 
 
 V. Onderdonk 145 
 
 V. Richards 442 
 
 Columbia & P. S. R. R. v. Hawthorne • . 414 
 
 Columbus V. Sims 341 
 
 Columbus & I. C. R. R. v. Farrell 220 
 
 Columbus & W. R. R. v. Bradford 239 
 
 V. Bridges 278, 499 
 
 Columbus & Xenia R. R. v. Webb 469 
 
 Columbus, C. & I. R. R. v. Powell 285 
 
 Columbus, C. I. & C. B. R. v. Troesch 393 
 
 Colvin V. Peabody 228 
 
 Commonwealth v. Boston & Albany R. R 30 
 
 V. Boston & Lowell R. R 250 
 
 V. Boston & Maine R. R 251 
 
 V. Eastern R. R 30 
 
 V. Fitchburg R. R 31 
 
 V. Pierce 236 
 
 V. Thompson' 236 
 
 V. Vermont & Massachusetts R. R 197, 201 285 
 
 V. Wentworth 231 
 
 V. Wilmington 339 
 
 V. Worcester R. R 31 
 
 Conant v. Griffin 29 
 
INDEX TO CASBS CITED. XXXIX 
 
 Conaty ». N. T., N. H. & H. R. R 106 
 
 Condon e. Missouri Pacific R. R 468 
 
 Condran t>. Chic, M. & St. P. R. R 195 
 
 Cone r. Delaware & Hudson Canal Co 444 
 
 Conelly v. Nashville '^7 
 
 Cones V. Cincinnati, I., St. L. & C. R. R 299 
 
 Congress & Empire ^ring Co. v. Edgar 223 
 
 Conley o. Cincinnati, N. O. & T. P. R. R HI. 213 
 
 t». Portland 449 
 
 Conners v. Durite Co 384, 388 
 
 V. Hennessey ^^ 
 
 V. LoweU 356 
 
 Connerton a. Del. & H. Canal Co. 301 
 
 Connolly ». Eldredge 405 
 
 V. Knickerbocker Ice Co 294 
 
 V. Lewistou & A. Hbrse R. R 294 
 
 r. N. T. & N. E. R. R 289 
 
 «. Poillon 892,400 
 
 Connor v. Citizens' Street Railway 293 
 
 r. Electric Traction Co. 188 
 
 Conrad v. Ithaca 93, 313, 324 
 
 Conroy v. Chic. St. P. & C. R. R. 289 
 
 Consolidated Coal Co. v. Schreiber 371 
 
 V. Wombacher 244, 470 
 
 Consiolidated Gas Co. v. Crocker 232 
 
 Consolidated Traction Co. v. Behr 312 
 
 r.Haight 217,301 
 
 V. Lamson 302 
 
 V. Reeves 312 
 
 V. Scott 301 
 
 V. Thalheimer 185 
 
 Continental Improvement Co. i/. Stead 243, 296 
 
 Conway v. Belfast, &c. R. R 452 
 
 V. Railroad 292 
 
 Cook v. Champlain Transportation Co 237 
 
 V. Milwaukee 345, 346, 348 
 
 V. Kew York Central R. R 256 
 
 ». North Metropolitan Tramways Co. 490 
 
 Cookson V. Pittsburg & W. R. R 297 
 
 Coombs V. New Bedford Cordage Co 371, 389, 404, 412, 445 
 
 Coon 17. Syracuse & Utica R. R 394, 425, 441 
 
 Cooper V. Lake Shore & Mich So. R. R 218 
 
 1-. Waterloo 361 
 
 Coots V. Detroit 410 
 
 Coppins V. New York Central & H. R. R. R. . . v 400 
 
 Corby 17. Hill 102, 108, 131, 132 
 
 Corcoran r. Concord & M. R. R 115 
 
 V. Holbrook 462 
 
 Cordell v. New York Central «e H. R. R. R. 246 
 
 Corrigan v. Union Sugar Refinery 104 
 
xl INDEX TO CASES CITED. 
 
 Corry». Bath 254 
 
 Cosgroye v. Ogden 271 
 
 Costello V. Syracuse B. K 269 
 
 Cotter V. Lindgren ^ 
 
 CotteriU v. Starkey 312 
 
 Coaghlan v. Cambridge 43, 488 
 
 Coughlin V. Boston Tow Boat Co 487 
 
 Coilghty V. Woolen Co 101 
 
 CouUard *. Tecumseh Mills ■i06 
 
 Coulter" V. American Express Co 257 
 
 V. Pine Township s 24 
 
 Counsell v. Hall 436 
 
 Counter v. Couch 239 
 
 Coup V. Wabash, St. L. & P. K. R 201 
 
 Coupland v. Hardingham 362 
 
 Course v. New York, L. E. & W. R. R 160 
 
 Cousins V. Lake Shore & M. S. R. R 292 
 
 Coventry v. Barton 369 
 
 Covey V. Hannibal & St. Jo. R. R 280, 378 
 
 Cowdrey v. Galveston, H. & H. B. R 65 
 
 Cowen V. Sunderland 134 
 
 Cowie V. Goodwin 133 
 
 Cowles V. Richmond & Danville R. R 473 
 
 Cowley V. Mayor of Sunderland 371 
 
 Cox V. Burbridge 224 
 
 V. Great Western Railway 505 
 
 «. Murphy 224 
 
 V. Westchester Turnpike Co 237 
 
 Coyne v. Union Pacific R. R 449 
 
 CrabaU v. WapaUo 420 
 
 Craft V. Abison 50 
 
 Crafter v. Metropolitan R. R 191 
 
 Crafts V. Boston 247 
 
 Craig V. Chicago & Alton R. R 420 
 
 V. New York & N. H. R. R 247 
 
 Crandall ». N. Y., N. H. & H. R. R 421 
 
 Crane Elevator Co. v. Lippert 41, 243 
 
 Crawford v. Delaware, L. & W. R. R 169, 217 
 
 Creamer v. West End R. R 194, 260, 293 
 
 Creed v. Kendall 173 
 
 V. Pennsylvania R. R 282 
 
 Creginu. Brooklyn, &c. R. R 19 
 
 Crine v. East Tennessee, V. & G. R. R 286 
 
 Crippa V. Judge 498, 499 
 
 Crissey v. Hestonville, &c. R. R 152, 175 
 
 Crocheron v. North Shore Staten Island Ferry Co 191 
 
 Crocker v. Knickerbocker Ice Co 311 
 
 Crofts V. Waterhouse 189 
 
 Crogan v. Pope Iron & Metal Co 358 
 
 V. Schiele 116 
 
INDEX TO CASES CITED. xU 
 
 Crosby v. Boston 354 
 
 V. Leng 2 
 
 Cross o. Guthery 21 
 
 Cross Lake Logging Co. v. Joyce 436 
 
 Crowley v. Appleton 403 
 
 V. Cutting • 502 
 
 V. Mayor of Sunderland 88 
 
 I). Pacific Mills • 404 
 
 r. Panama R. R -33 
 
 Crown I'. Orr 426 
 
 Crutchfield v. Richmond R. R 444 
 
 Crystal Ice Co. v. Sherlock 471 
 
 Cuddy c. Horn 169 
 
 Culb^-tson f. City R. R. 152, 155 
 
 V. Holiday I47, I66 
 
 Cullen r. Delaware & Hudson Canal Co 296 
 
 V. National Sheet Metal Roofing Co 278 
 
 Cullom V. Justice 341 
 
 Culver V. Ala. Midland R. R 602 
 
 Cumberland & Pennsylvania R. R. v. State 469 
 
 Cumberland Valley R. R. u. Maugans 291 
 
 Cuming v. Brooklyn City R. R 9 
 
 Cumiskey v. Kenosha 264 
 
 Cummings r. National Furnace Co 184 
 
 f. Worcester, &c. Railway 287 
 
 Cnnliff V. Mayor of Albany 84, 89 
 
 Curley B. Missouri Pacific R. R 118,122 
 
 Curran c. Boston 89 
 
 Currier v. Lowell 366 
 
 Curtis V. Chicago & N. W. R. R 275 
 
 V. Kiley 101, 103 
 
 V. Rochester & Syracuse R. R 317 
 
 Cushing 17. Bedford 317, 322 
 
 Cusick V. Adams 128 
 
 Cutter V. Hamlen 22 
 
 Cutting r. Tower 22 
 
 Dackt v. Old Colony R. R. 489, 500, 501, 505 
 
 Dahl V. Michigan Cent. R. R 173 
 
 Dahlbeig v. Minn. Street R. R 287 
 
 Dahlstrom v. St Louis, Iioa Mt. & So. R. R 112 
 
 DaUey v. Richmond & Danville R. R 154 
 
 Daley v. Norwich & Worcester R. R 123, 175, 269, 270 
 
 Dalton V. Angus 101, 326 
 
 e. Southeastern Railway 29 
 
 Daly V. Detroit Street Railway 113 
 
 V. N. J. Iron Co 488 
 
 Damon v. Boston 339 
 
 !'. Scituate 255, 312 
 
 Damrill v. St. Louis & S. F. R. R. 296 
 
Xlii INDEX TO CASES CITED. 
 
 Danbeck v. N. J. Traction Co 197 
 
 Dandie v. Southern Pacific R. R 276 
 
 Daniels v. Lebanon 311, 312 
 
 V. New York & N. E. R. R 127 
 
 V. Staten Island Rapid Transit R. E 218 
 
 V. Union Pacific R. R 378, 456 
 
 Dantzler v. De Bardebelen Co 502 
 
 DanviUe Turnpike Co. v. Stewart 169 
 
 Darling B. N.Y.,Prov. & Boston R. E 383,386,421 
 
 Darmstaetter v. Moynahan 60 
 
 Darrigan v. New York & N. E. R. R 470 
 
 Dartmouth Spinning Co. »- Aehard 410 
 
 Dascomb v. Buffalo & State Line R. R 186, 237 
 
 DashieU v. Griffith 235 
 
 Daube v. Tennison 175 
 
 Davenport v. Ruckman 93, 266 
 
 Davidson v. Lake Shore & M. S. R. R 297 
 
 V. Nichols 234 
 
 Davie v. Levy 62 
 
 Davies v. Mann 149, 162 
 
 Davis V. California Street Cable R. E 143 
 
 V. Central Congregational Society 108 
 
 V. Central Vermont R. R 383 
 
 V. Chicago & Northwestern R. R 107, 129, 145 
 
 V. Chicago, M. & St. P. R. R 199 
 
 ». Detroit & M. R. R 396, 397, 439 
 
 V. Guamieri 169, 253 
 
 V. Guilford 308 
 
 v. Hill 338 
 
 V. Houghtelling 49 
 
 V. Leominster 367 
 
 c. Mayor of New York 360 
 
 V. Michigan Bell Telephone Co 140 
 
 V. New York Central & H. R. R. R 305 
 
 V. New York, N. H. & H. R. R 502 
 
 V. Omaha 330 
 
 V. Somerville 255 
 
 V. Southern Pac. Co 482 
 
 V. St. Louis, Iron Mt. & So. R. R 422 
 
 V. Western R. R 428 
 
 Dawe V. Flint & P. M. R. R 297 
 
 Dawson v. Boston & Maine R. R 290, 291 
 
 Day V. Highland Street R. R 255, 274 
 
 V. Milford 343 
 
 Dayton v. Pease 334 
 
 Dealey v. Muller J52 
 
 II. Philadelphia, &c. R. R. R 458 
 
 Dean v. E. Tenn. &c. R. R [ \ 43 
 
 V. Pennsylvania R. R I70 
 
 Deane v. Clayton 110, 129, 364 
 
INDEX TO CASES CITED. xliii 
 
 Deane v. New Milford 79 
 
 V. Randolph 86 
 
 Dearth v. Baker 223, 224 
 
 Deavera v. Spencer ..>.... 458 
 
 Debbins ». Old Colony R. R 289 
 
 De Camp v. Sioux City 167 
 
 Decker v. Gammon 224 
 
 Deery v. Camden & A. R. R 222 
 
 Deford v. Keyser 101 
 
 De Forest v. Jewett 422 
 
 Degg V. Midland Railway 427, 476 
 
 De Graff v. New York Central & H. R. R. R 404, 409 
 
 Dehning v. Detroit Bridge & Iron Works 420 
 
 Dehring v. Comstock 102 
 
 Deikman v. Morgan's L. & T. R. & S. S. Co 241 
 
 Delafield v. Union Ferry Co 237 
 
 Delaware & Hudson Canal Co. v. Carroll 470 
 
 Delaware L. & W. R. R.^ d. Ashley 203 
 
 V. Hardy 460 
 
 V. Hefferan 296 
 
 DeU V. Phillips Glass Co 261 
 
 Delmonioo v. Mayor of New York 85 
 
 Denham v. Trinity Jjumber Co 149 
 
 Dennick v. Centred R. R. of New Jersey 19, 35, 36 
 
 Dennis v. Clark 15, 16 
 
 ». Pittsburg & C. R. R 184,222 
 
 Denny v. Williams 249 
 
 Denver v. Deane 350 
 
 V. Williams 76, 84 
 
 Denver, &c. R. R. v. Hodgson 289 
 
 Denver, S. P. & P. R. R. «. Driscoll 473 
 
 Deolin v. Wabash, St. L. & P. R. R 378 
 
 Deppe V. Chicago, R. I. & Pac. R. R 480, 482 
 
 Derk v. N. Central R. R 298 
 
 Derr o. Lehigh Valley R. R 35 
 
 De Sonsa v. Stafford Mills 407 
 
 Detroit B. Blackeby 81,84,91,92,98,314 
 
 r. Chaffee 314,367 
 
 V. Corey _ .... 54, 57, 326, 327 
 
 Detwiler v. Lansing 324 
 
 Devine v. Boston & Albany R. R 505 
 
 II. Tarrytown, &c. Gas Light Co 232 
 
 Devitt V. Union Pac. R. R 401, 413 
 
 Devlin v. Wabash, St. L. & Pac. R. R 412 
 
 Deweese v. Meramec ton Mining Co 399 
 
 Dewey v. Detroit, G. H. & M. R. R 458 
 
 V. Park . . . . : 392 
 
 Dewire v. Bailey 309 
 
 u. Boston & Maine R. R 285, 286 
 
 Dewort v. Lormer 167, 190 
 
xliv INDEX TO CASES CITED. 
 
 Dice o. Williamette Trans. & Locks Co 295 
 
 Dickson v. HolUster 268, 330, 359 
 
 Diebold v. Pennsylvania K. K 263 
 
 Dietrich v. Ifortbamptou 23 
 
 Dillingham v. Anthony 52 
 
 V. Wood 204 
 
 Dillon V. Allegheny County Light Co 233 
 
 Dingley v. Star Knitting Co 388 
 
 Distler v. Long Island R. R 290, 292 
 
 District of Columbia r. Baltimore & Potomac R. R 60 
 
 r. Woodbury 354 
 
 Ditchett I'. South Division R. R 141 
 
 Dittrich v. Detroit 352 
 
 Dixon V. Bell 228 
 
 V. Plans 183 
 
 Dlanhi v. St. Louis, I. M. & S. R. R 114, 163 
 
 Dobbin v. Richmond & Danville R. R 462 
 
 Dobbins ». Brown 181, 183, 388 
 
 V. Richmond & D. R. R 473 
 
 Dodge V. Boston & Albany R. R 457 
 
 V. Boston & Bangor Steamship Co 194, 295 
 
 Doherty v. Braintree 85, 86 
 
 V. Missouri R. R 150 
 
 V. Waltham 340, 350 
 
 Doing V. New York, O. & W. R. R 392 
 
 DoUard ». Roberts 136,262 
 
 Dolphin V. Plumley 500 
 
 Donahoe v. Wabash, St. L. & Pac. R. R 257 
 
 Donahue v. Drown 388 
 
 V. Kelly 257 
 
 Donaldson v. Hospital 66 
 
 V. Mississippi & Mo. R. R 29 
 
 V. Old Colony R. R 505 
 
 V. Wilson 101, 134 
 
 Donegan p. Erhardt 207, 383 
 
 Donnelley v. Granite Co 396 
 
 Donnelly v. Boston & Maine R. R 107, 305 
 
 V. Brooklyn City R. R 260 
 
 Donohue v. Kendall 136 
 
 ». St. Louis, Iron Mt. & So. R. R 297 
 
 Donovan v. Hannibal & St. Jo. R. R 244 
 
 Doolan v. Midland Railway 200 
 
 Dooley v. Sullivan 327, 330 
 
 Dooner v. Del. & H. Canal Co 384 
 
 Dorr V. New Jersey Steam Navigation Co 200 
 
 Dorsey v. Phillips, &c. Construction Co 421 
 
 Dougan u. Champlain Transportation Co 191 
 
 Dougherty v. Missouri R. R 150 
 
 Doughty V. Firbank 505 
 
 V. Penobscot Log Driving Co 449 
 
INDEX TO CASES CITED. xlv 
 
 Douglass V. Monongahela Water Co 310 
 
 Dowd V. Chicopee 270 
 
 Dowell V. General Steam Navigation Co 162, 242 
 
 Dowling V. Allen 474 
 
 Downes v. Harper Hospital 66 
 
 Downs V. New York Central R. R 271 
 
 Doyle r. Baird 390, 411, 416 
 
 r. Boston & Albany R. R 304 
 
 •^ V. Chicago, St. P. & K. R. R 191, 205 
 
 V. Detroit Omnibus Co 228 
 
 I. Fitchburg R. R 203, 455 
 
 V. West End Street Railway 149 
 
 Drake o. Lowell 336, 343 
 
 Dreher v. Fitchbnig 320 
 
 Drennan v. Grady 265 
 
 DriscoU V. FaU River . * 488 
 
 V. Norwich & Wor. R. R 74 
 
 V. Scanlon 44 
 
 V. West End Street Railway 302 
 
 Drommie v. Hogan 488 
 
 Dmry v. Worcester 323 
 
 Drymala v. Thompson 377 
 
 D. S. Gage, The 454 
 
 Dname v. Chicago & Northwestern R. R 210, 298 
 
 Dublin, Wicklow & Wexford Railway v. Slattery 289 
 
 Dudley v. Smith 167 
 
 Duff V. Allegheny Valley R. R 118 
 
 V. Great Northern R. R 200 
 
 Duffy V. Oliver 439 
 
 V. Upton 379 
 
 Dagan v. Chic, St. P., &c. R. R 481 
 
 Dukes V. Eastern Distilling Co 102 
 
 Dumas v. Stone 426 
 
 Dun V. Seaboard & Roanoke R. R. 287 
 
 Duncan v. Buffalo 349 
 
 V. Findlater 77 
 
 V. Surrey Canal Co 62 
 
 V. Thwaites 3 
 
 Dundas v. Lansing 255, 353, 354, 355 
 
 Dundon ». N. Y., N. H. & H. R. R 219 
 
 Dnnlap r. Northeastern R. R 281 
 
 Dunn V. Birmingham Coal Co 136 
 
 V. McNamee 409 
 
 Dunsheath v. Pittsburg, &c. Traction Co 271 
 
 Durant v. Palmer 139 
 
 Dorbin v. Oregon Railway & Navigation Co 296, 305 
 
 Durden v. Bamett 16 
 
 Duigin V. Lowell 325 
 
 V. Monson 401 
 
 Durham, &c. Co. v. Dandelin 257 
 
Xlvi INDEX TO CASES CITED. 
 
 Durkin v. Kingston Coal Co 477 
 
 V. Sharp 468 
 
 Durrant v. Lexington Coal Mining Co '273, 381 
 
 Button V. Gerrish 133 
 
 Duval V. Hunt 481 
 
 Duxbury v. Vermont Central R. R 368 
 
 Dwinelle v. New York Central & H. R. R. R. ... 50, 51, 53, 72 
 
 Dyer v. Erie R. R 169 
 
 V. Fitchburg R. R 247 
 
 Dynen v. Leach 407, 424 
 
 Eades v. Clark 243 
 
 Eagle V. Swayze 133 
 
 Eakin v. Brown 133, 139 
 
 Earheart v. Youngblood 224 
 
 Earl V. Beadleston 60 
 
 V. Tupper 24 
 
 V. Van Alstine 223 
 
 Early v. Lake Shore & Mich. So. R. E 109 
 
 East & West R. R. v. Sims 405 
 
 East Line & Red River R. R. v. Scott 434 
 
 East Tennessee R. R. ». Markens 171 
 
 East Tennessee & W. N. C. R. R. v. Winters 268 
 
 East Tennessee, V. & G. R. R. v. Smith 423 
 
 Eastern Counties Railway «. Broom 63 
 
 Eastman v. Curtis 415 
 
 V. Lake Shore & M. S. R. R 275, 381 
 
 V. Meredith 80, 81, 87, 313 
 
 Easton v. Houston & T. C. R. R 407 
 
 Eaton V. Boston & Lowell R. R 68, 167, 178 
 
 V. Cripps 312 
 
 Eby V. Lebanon County 56 
 
 Eckert v. Long Island R. R 257 
 
 Eddy V. Prentice 384 
 
 Eden u. L. & F. R. R 18 
 
 Edgerly v. Concord 91 
 
 Edgerton v. New York Central R. R 184 
 
 E. D. Holton, The 157 
 
 Edwards v. Brighton, &c. R. R 396 
 
 u. Hetherington 132 
 
 Egyptian Monarch, The 453 
 
 Eicheler r. St. Paul Furniture Co 388 
 
 Eighmy v. Union Pacific R. R 66 
 
 Eisenburg v. Missouri Pacific R. R 123 
 
 Eldridge v. Atlas Steamship Co 434 
 
 Elkins V. Boston & Albany R. R 270, 306 
 
 V. Penn. R. R 387 
 
 Ellinger v. Wilmington & Bait. R. R 192 
 
 Ellingson v. Chic. & Alton E. R 443 
 
 Elliot V. Aiken 133 
 
INDEX TO CASES CITED. xlvii 
 
 Effiot V. Chicago, M. & St. P. R. R. 457 
 
 Elliott V. Kewport Street Railway 288 
 
 V. Pray 101, 143 
 
 Ellis V. Boston & Maine R. R .303 
 
 V. Gas Cons. Co 60, 365 
 
 V. Lynn & Boston R. R 302 
 
 V. McNaughton 360 
 
 ». New York Central R. R 384 
 
 V. Peru 308 
 
 Ellsworth r. Chic, B. & Q. R. R 193 
 
 Elmer i;. Locke 383 
 
 Elphland v. Mo. Pac. R. R 292 
 
 Elsee V. Gatward 137 
 
 Elwell V. Hacker 149 
 
 Elytou Land Co. v. Mingea 169 
 
 Emerson v. Lowell Gas Light Co 232 
 
 ». Peteler 125 
 
 Emma Cotton Seed Oil Co. v. Hale 401 
 
 Enders v. Lake Shore & Mich. So. R. R 304 
 
 Engel I). Enreka Club 54 
 
 1). N. Y.,Prov. & Boston R. R 501 
 
 V. Smith 102, 358 
 
 England v. Boston & Maine R. R 221, 291 
 
 English V. Canal Co 46 
 
 Engstrom v. Ashland Co 392 
 
 Enright i;. Atlanta 268 
 
 Erdman v. El. Steel Co 436 
 
 Erie v. Schwingle 95 
 
 Ernst V. Hudson River R. R 256, 267 
 
 Erslew w. N. O. & N. E. R. B 427 
 
 Erwin t>. St. Louis, Iron Mt. & So. R. R 113, 151 
 
 E. S. Higgins Carpet Co. v.. O'Keefe 188 
 
 Evanisch v. Gulf, Colorado & S. F. R. R 126 
 
 Evans V. Adams Express Co 311 
 
 ». American Iron & Tube Co 186,406 
 
 V. Chamberlain 415 
 
 V. Louisville & N. R. R 481 
 
 Evarts v. St. Paul, M. & M. R R 427 
 
 Everard v. Hopkins 13 
 
 Evers v. Philadelphia El. Traction Co 151, 215 
 
 Ewen V. Chicago & Northwestern R. R 172, 244 
 
 Faber v. Carlisle Manuf . Co 387 
 
 Faeber v. Scott Mining Co 470 
 
 Fagundes v. Central Pacific R. R 457 
 
 Fairchild v. Bentley 224 
 
 Fairman v. Boston & Albany R. R 278 
 
 Fairmount & Arch St. Railway v. Stutler 15, 16, 28 
 
 Farley v. Chicago, R. I. & Pac. R. R 148, 259, 273 
 
 t). New York 421 
 
xlviii INDEX TO CASES CITED. 
 
 Farlow ». Kelly 287 
 
 Farmer v. Mich. Cent. R. R 238 
 
 Farnum v. Concord 79, 317 
 
 Farquar v. Roseburg 95 
 
 Farrant v. Barnes 230 
 
 Farrell v. Oldtown 352 
 
 Farve v. Louisville & Nashville R. R 187, 215 
 
 Farwell v. Boston & Worcester R. R 425, 440, 449, 456 
 
 Faulkner v. Erie R. R 393 
 
 Favor v. Boston & Lowell R. R 207 
 
 Fay V. Minneapolis & St. L. R. R. . . . 279, 280, 413, 468, 469, 501 
 
 Fee V. Columbus 308 
 
 Feeney v. Spaulding 236 
 
 Feltham v. England 46, 63, 448, 453 
 
 Felton V. Aubrey 122 
 
 V. Dahl 141 
 
 Fenderson v. Atlantic City 372 
 
 Ferguson v. Boston Gas Light Co 233 
 
 V. Columbus & Rome Railway 126, 175 
 
 V. Hubbell 58 
 
 Fembach v. Waterloo 255 
 
 Fero V. Buffalo & State Line R. R 256 
 
 Ferren v. Old Colony R. R 273, 430 
 
 Ferris v. Union Ferry Co 267, 295 
 
 Ferry v. Manhattan Railway 205 
 
 Fickett V. Lisbon Falls Fiber Co 279 
 
 Fife V. Oshkosh 361 
 
 Fifleld V. Northern R. R 407, 444, 449 
 
 Filbert r. Delaware & Hudson Canal Co 382 
 
 Filer v. New York Central R. R 258 
 
 Files V. Boston & Albany R. R 128, 197, 201 
 
 Findlay v. Russell Wheel Co 472 
 
 Fink V. Campbell 18 
 
 Finlayson v. Utica Mining Co 393 
 
 Finnegan v. Fall River Gas Works 233 
 
 V. Foster Township I70 
 
 Fish V. Illinois Cent. R. R 421 
 
 Fisher v. Boston 82 
 
 »• Cook 165 
 
 V. Gushing 359 
 
 V. Jansen I43 
 
 V. Louisville, &c. R. R I44 
 
 V. Monongahela Connecting Co 297 
 
 V. Prowse 353 
 
 V. Thirkell HI 
 
 Fisk V. Illinois Cent. R. R 280 
 
 Fiske V. Forsyth, &c. Dyeing Co 148 
 
 Fitch V. New York . . 331 
 
 Fitzgerald v. Boston & Albany R. R !!!.'.' 503 
 
 V. Weston 268 
 
INDEX TO CASES CITED. xlix 
 
 Fitzgerald v. Woburn ' 347, 348 
 
 Fitzpatrick v. Garrison & West Point Ferry Co 116 
 
 V. Slocam 315 
 
 Fitzsimmona v. Mil. L. S. & W. R. R 49 
 
 Flagg V. Chicago, &c. R. R 213 
 
 Flaherty v. Northern Pacific R. R 167 
 
 Flanagan v. People's R. R 151 
 
 Flater ». Fey 327, 341 
 
 Fleck V. Union Railway . 294 
 
 Fleishman v. Neversink Mt. R. R 151 
 
 Fleming v. Orr 223 
 
 Fletcher v. Bait. & Ohio R. R 208 
 
 V. Boston & Maine R. R 145 
 
 V. Fitchburg R. R 306 
 
 V. Harcott 369 
 
 V. Scotten 361 
 
 Flewelling v. Lewiston & A. R. R 302 
 
 Flike V. Boston & Albany R. R 372, 401, 445, 447, 466 
 
 Flinn v. Philadelphia, W. & B. R. R 198, 202 
 
 Flint V. Boston & Albany R. R 208 
 
 V. Norwich & N. Y. Trans. Co 52, 192 
 
 Flint & Pere Marquette R. R. v. Ware 197 
 
 Florida Cent. R. R. v. Williams 238, 267 
 
 Flower v. Pennsylvania R. R 53 
 
 Floyd V. Phil. & R. R. B 257 
 
 Floythrup v. Boston & Maine R. R 214 
 
 Flnker v. Greorgia R. R. & Banking Co 45 
 
 Flynn v. Cent. R. R. of N. J 101 
 
 V. Eastern R. R 297 
 
 Fogg V. Nahant 322 
 
 Fogus V. Chic. & A. R. R 433 
 
 Foley V. California Horse Shoe Co 151 
 
 V. Chicago, R. I. & Pac. R. R 480 
 
 V. Jersey City El. Light Co 407 
 
 V. Pettee Machine Works 407, 410 
 
 Ford r. Fitchburg R. R. 274, 279, 398, 399, 417, 419, 445, 446, 447, 491 
 
 17. Lake Shore & Mich. So. R. R 439 
 
 V. Monroe 21 
 
 V. Umatilla County 244, 268 
 
 Foren v. Rodick 103 
 
 Fores v. Wilson 15 
 
 Forsyth v. Boston & Albany R. R 291 
 
 V. Hooper 43 
 
 Fort Smith v. York 91 
 
 Fort Wayne v. Breese 308 
 
 Fort Worth & D. City R. B. ». Wilson 415 
 
 Fortin v. Easthampton 349, 354, 356 
 
 Foshay t>. Glen Haven 320 
 
 Foss V. Baker 452 
 
 Foulkes V. Metropolitan Railway 476 
 
 d 
 
1 INDEX TO CASES CITED. 
 
 Fowie V. Alexandria 06 
 
 Fowler v. Dorian 237 
 
 V. Holmes 50 
 
 V. Strawberry Hill 314 
 
 Fox V. Chicago, St. P. & K. C. R. R - . . . 276 
 
 V. Fort Edward 307 
 
 Foxwortby v. Hastings 336, 353 
 
 Frammell v. Little 228 
 
 France, The 387 
 
 Francis v. Cockrell 75 
 
 V. New York Steam Co 287, 294 
 
 Fransden v. Chicago, R. I. & Pae. R. R 480 
 
 Frauenthal v. La Clede Gas Light Co 151 
 
 Frazer v. South & North Alabama R. R 260 
 
 Frazier v. Pennyslvania R. R 46, 63, 396, 397 
 
 Fredenburg v. Northern Central R. -R 400 
 
 Freeman v. Hunnewell 133 
 
 Freer v. Cameron 103 
 
 Fremont, E. & M. V. R. R. v. French 251 
 
 French v. Brunswick 331, 338 
 
 V. Taunton Branch R. R 247, 299 
 
 Frink v. Schroyer 41, 193 
 
 Fritz V. Detroit St. Railway 302 
 
 Frost V. Eastern R. R Ill, 127 
 
 V. Portland 338 
 
 Fuller V. Hyde Park 357 
 
 V. Jewett 445, 446 
 
 V. Lake Shore & M. S. R. R 413 
 
 FuIIerton v. Fordyce 212 
 
 Fulp V. Roanoke & So. R. R 238 
 
 Fulton V. Tucker 367 
 
 Funk V. El. Traction Co 151 
 
 Fumell ». St. Paul 314 
 
 Gabkielson v. WaydeU 453 
 
 Gaffney v. Brown 265 
 
 Grahagan v. Boston & Lowdl R. R 291 
 
 Galbraith v. West End St. Railway 147, 303 
 
 Galena, &c. R. R. v. Tarwood 258 
 
 ^alesburg v. Benedict 165 
 
 V. Higley 95 
 
 Gall V. Beckstein 465 
 
 Gallagher v. Edison III. Co. 184 
 
 V. Humphrey 104 
 
 »• Fiper 46, 63, 449, 453 
 
 V. Thompson 235 
 
 V. West End St. Railway 293 
 
 Gallena v. Hot Springs R. R 52 
 
 Galligan v. Metacomet Manuf' g Co 119 125 
 
 Gallin ». London & Northwestern Railway 14 
 
INDEX TO CASES CITED. li 
 
 GiJyeston o. Hemmis 410 
 
 Galveston, Houston & S. A. E. R. v. Crawford 451 
 
 ». Le Gierse 290 
 
 i>. Lewis 209 
 
 V. Sweeney , 399 
 
 Galveston, H. 8e S. A. R. R. v. Eutac 170, 171 
 
 V. Parsley _ 185 
 
 Galveston, H. & S. F. R. R. v. Smith 462, 473 
 
 Galveston Oil Co. v. Morton 129 
 
 Galvin v. New York , 248 
 
 V. Parker 226, 227 
 
 Gandy e. Jabber 140 
 
 Gangawer v. Phil. & R. R. R 296 
 
 Gardner 0. Detroit, L. & N. R. R 297 
 
 V. Grace I75 
 
 c. New London 357 
 
 V. N. E. Telephone Co 502 
 
 Garton v. Bristol & Exeter Railway 200 
 
 Gates V. Latta 228 
 
 V. Penn. R. R 249 
 
 Ganghan v. Philadelphia '. . . 119, 329 
 
 Gaatret v. Egerton 132 
 
 Gavett V. Jackson 347 
 
 V. Manchester & Lawrence R. R 291 
 
 Gavin v. Chicago 271 
 
 Gay V. Winter 243 
 
 Gaynor v. Old Colony & Newport R. R 100, 106, 261, 288 
 
 Gebhard v. Detroit, G. H. & M. R. R 296 
 
 Geer r. Darrow 56 
 
 Greloneck v. Dean Steam Pump Co 418 
 
 Geneva v. Brush Electric Light Co. . ^ 368 
 
 Geno V. Fall Mt. Paper Co 388 
 
 George v. Mobile & Ohio R. R 275 
 
 V. Skivington 231, 476 
 
 Greorgia Pacific R. R. v. Blanton 181 
 
 V. Brooks 500 
 
 V. Propst 399 
 
 V. Ross 113 
 
 Georgia R. R. ». Ivey 478 
 
 V. Miller 478 
 
 Georgia R. R. & Banking Co. v. Goldwire ......... 478 
 
 V. Nelms 182, 378 
 
 Georgia Southern R. R. v. George I59 
 
 Gierald v. Boston 346 
 
 Germaine ». Muskegon 352 
 
 Germond v. Cent. Vt. R. R. 249 
 
 Gerrish o. New Haven Ice Co 401 
 
 Gessley v. Missouri Pacific R. R 263 
 
 Geyette v. Fitchburg R. R 247 
 
 Gianfortone v. New Orleans 77 
 
lii INDEX TO CASES CITED. 
 
 Gibbons v. Wilkes-Barre Railway 209 
 
 H. Williams 172 
 
 Gibbs V. Great Western Railway 505 
 
 Gibney v. State 161 
 
 Gibson v. Erie R. R 413, 423 
 
 V. Inglis 62 
 
 V. Sullivan 415 
 
 Gilbert v. Guild 410 
 
 V. Nagle 99 
 
 V. Roxbury 346 
 
 OUes V. Biamond State Iron Co 186, 391 
 
 Gilhooley v. Washington 133 
 
 GiU V. Middleton 137, 148 
 
 Gillen «. Rowley 427,428 
 
 Gillespie v. McGowan 118, 269 
 
 e. Newburgh 339 
 
 Gillian v. South & North Alabama R. R 53 
 
 Gillis V. Pennsylvania R. R 101 
 
 Gillshannon v. Stony Brook R. R 456, 457, 474 
 
 Gilman v. Deerfield 238 
 
 K. Eastern R. R 371,876,393,396,397,439,449,457 
 
 Gilmore v. Cape Fear & V. R. R 219, 297 
 
 V. Federal St. Railway 209, 222 
 
 V. Northern Pacific Railway 466, 473 
 
 V. Oxford Iron Co 461 
 
 Girandi v. Electric Improvement Co 184 
 
 Gisson V. Schwabacher 415 
 
 Glantz V. South Bend 331 
 
 Glascock V. Central Pacific R. B 296 
 
 Glass V. Memphis & C. R. R 114 
 
 Glassey v. Hestonville, &c. Railway 175, 176 
 
 Glavin v. Rhode Island Hospital 66 
 
 Gleason v. New York & N. E. R. R 407 
 
 Glover v. Dwight Manuf g Co 404, 406 
 
 Goddard v. Grand Trunk Railway 53, 192 
 
 Godeau v. Blood 224, 225 
 
 Goeltz V. Ashland 337 
 
 Golden v. Newbrand 49 
 
 Goldie V. Warner 414 
 
 GoU V. Manhattan Railway 182 
 
 Goltz V. Milwaukee, L. S. & W. R. R 406 
 
 Gonzales v. New York Central & H. R. R. B 237 
 
 GoodfeUow v. Boston, H. & E. R. R 273 
 
 Goodhue v. Dix 43 
 
 Goodin i-. Des Moines 335, 366 
 
 Goodloe V. Memphis & C. R. R 49 
 
 Groodnow V. Walpole Emery Mills 410 
 
 Goodrich V. New York Central & H. B. R. B 385, 386, 408 
 
 Goodsell u. Hartford & N. H. B. B 21,24 
 
 V. Taylor 191 
 
INDEX TO CASES QTED. Illi 
 
 Gordon r. Cmumings 102 
 
 i>. Reynolds Card Manufg Co 406 
 
 V. Richmond 244, 307 
 
 Gordy v. New York, P. & N. R. R. 275^ 279 
 
 Gorman b. Minneapolis & St. L. R. R. 206 
 
 Gorr t». Middlestadt 109 
 
 Gosport V. Evans 334 
 
 Gothard v. Alabama G. S. R. R. 165 
 
 Gottlieb V. New York, L. E. & W. R. R 413 
 
 Gough V. Bryan 242 
 
 Gould V. Schirmer 34O 
 
 V. Slater Woolen Co 234 
 
 Government Street R. R, v. Hanlon I75 
 
 Gowen o. Harley 43g 
 
 Grady v. Wolsner . 140 
 
 GraefE v. Phil. & R. R. R .192 
 
 Graf V. Chic. & Northwestern R. R. 212 
 
 Graff 0. Detroit, &c Railway 222 
 
 Graham v. Manhattan Railway 186, 207, 294 
 
 V. Pennsylvania R. R. 295 
 
 Gram v. Gieenbush 345 
 
 Grand Rapids & Indiana R. R. v. Hnntley 215 
 
 Grand Trunk Railway v. Cunuuings 443 445 
 
 V. Stevens 202 
 
 V. Tennant 386 
 
 V. Walker 384 
 
 Graney v. St. Louis 308 
 
 Granger r. Boston & Albany R. R. 260, 298, 306 
 
 Grant v. Fitchburg 152 
 
 0. StUlwater 365 
 
 Gravelle v. Minneapolis & St. L. R. R. 473 
 
 Graves c. Battle Creek 264 
 
 i: Thomas 104 
 
 Gray v. Bell 282 
 
 u. Boston & Maine R. R. 48 
 
 V. Boston Gas Light Co 61, 362, 369, 370 
 
 r. Brooklyn 315 
 
 r. Grermania Co. 257 
 
 V. Penn. R. R. 296 
 
 r. Philadelphia &R.R.R. 444, 445 
 
 Greany v. Long Island R. R. 297 
 
 Great Northern Railway 0. Eastern Counties Railway 73 
 
 o. McLaughlin 467 
 
 Great Western Railway v. Blake 67 
 
 V. Braid 206 
 
 V. McCarthy 200 
 
 Green c. Eastern Railway 219 
 
 o. Erie.RaUway 159 
 
 r. Hudson River R. R 2, 18, 21 
 
 r. London General Omnibus Co 63 
 
liV INDEX TO CASES CITED, 
 
 Green v. Smith 502 
 
 Greenburg v. Whitcomb Lumber Co 478 
 
 Greene v. Minneapolis & St. L. R. B 435 
 
 Greenland v. Chaplin 182, 164 
 
 Greenleaf v. lUinois Central R. R 205, 244, 436 
 
 Greenway v. Conroy 1 51 
 
 Greenwood v. Philadelphia, W. & B. R. B 306 
 
 V. Seymour 47, 50 
 
 Gregg V. Wyman 253 
 
 Gregor v. Cady 137 
 
 Griffin v. Johnson 349 
 
 V. Ohio & M. R. R 411 
 
 Griffiths V. ClifE 222 
 
 V. Dudley 506 
 
 V. Gidlow 374, 424 
 
 V. London & Northwestern Railway 104 
 
 i;. London & St. Kath. Docks Co 407 
 
 V. Wolfram 476 
 
 Grill V. General Iron Screw Collier Co 147 
 
 Grindley v. McEechnie 118 
 
 Grinnell v. Wells 17 
 
 Grippin V. New York Central R. R 237 
 
 Griswold v. New York & N. E. R. R 202 
 
 Grizzle V. Frost 230, 445, 462 
 
 Grote V. Chester & Holyhead Railway 75 
 
 Grows V. Maine Cent. R. R 249 
 
 Gramlioh v. Wurat 116, 364 
 
 Gubasco V. New York 331, 351 
 
 Guenther v. St. Louis, Iron Mt. & So. R. R 263 
 
 GufEey v. Hannibal & St. Jo. R. R 185 
 
 Guggenheim v. Lake Shore & Mich. So. R. R 210, 218, 305 
 
 Guille V. Swan 3, 39 , 
 
 Guinney v. Hand 47 
 
 Gulf, C. & S. F. R. R. i;. Anderson 297 
 
 V. Blohn 453, 458 
 
 V. Breitling 187 
 
 V. Cunningham 126 
 
 V. Dawkins 53 
 
 V. Farmer 456 
 
 V. Finley 244 
 
 V. Greenlee 284, 299 
 
 V. Hodges 207, 209 
 
 V. Jackson 393 
 
 V. Jones 405 
 
 V. Knott 257 
 
 V. McGown 202 
 
 V. McMahan 279 
 
 V. McWhirter 126 
 
 V. Pendiry 145 
 
 V. Pettis 382 
 
INDEX TO CASE8 OITED- Iv 
 
 Gulf, C. & 5. F. K. R. V. ^•omerpy 206 
 
 ». Styron 126 
 
 V. Walker 113 
 
 R WDUams , .... 437 
 
 Guliek V. Clari '..... 222 
 
 Gulline v. lioweU 328 
 
 Gumbel v. Dlinois Cent, R, R 381 
 
 Gurno v. St. Louis , 56 
 
 Gusman v. Ca&ery, &c. Refinery 413 
 
 Gustaisen v, Washburn & Moen Manuf 'g Ck> 262, 488 
 
 Guta V. Lake Shore & Mich. So. R. R. . . , 305 
 
 Guthrie v. Maine Central R. R. 385 
 
 Gutkind ». Ehrpy 30T 
 
 Guy V. Livesey 18 
 
 Haas r. Chic, M. & St. P. R. R 257 
 
 Haden v. Clarke 353 
 
 Hadley v. Taylor 362, 363 
 
 Haetsch v. Chic & N. W. R. R 301 
 
 Hafiord v. New Bedford 76, 82, 83 
 
 fiagar v. So. Pacific Co. 186 
 
 Haggerty v. Granite Co 149 
 
 Haigh V. Royal Mail Steam Packet Co 200 
 
 Haines v, Barclay Township 335, 366 
 
 Haire v. Reese 235 
 
 Hale V. Cheeney 389 
 
 V. Railway Co 365 
 
 Haley v. Ca^ 407, 429 
 
 V. Earle 162 
 
 V. Western Transit Co 451, 453 
 
 Halifax R. R. v. Shelley 55 
 
 Hall V. Cheney 198 
 
 V. Corcoran 253 
 
 V. Fond du Lac 349 
 
 V. Hollander 10, 15, 16 
 
 V. Huber 312 
 
 p. Johnson 452 
 
 V. Manson 335 
 
 r. Northeastern Railway 200 
 
 V. Ripley 254, 311 
 
 ». Smith 76, 77 
 
 c. West End Street RaUway 267 
 
 Halley, The 32 
 
 Halliburton v. Wabash R. R 273 
 
 Halverson 17. Nisen 453 
 
 Ham V. Mayor of New York 316 
 
 V. Tioy & Sandlake Turnpike Co 311 
 
 Hamel v. Biopklyn & N. T- Ferjy Co 48 
 
 Hamilton v. Detroit 119 
 
 Hamilton Commissioners v. Mighels 79, 81 
 
Ivi INDEX TO CASES CITED. 
 
 Hammaok v. White 183 
 
 Hammill v. Louisville & N. R. E 130 
 
 Hammond Co. v. Johnson 371, 471 
 
 Hampson v. Taylor 160, 308 
 
 Hampton v. Unterkircher 55 
 
 Hancke v. Hooper 235 
 
 Hand v. Brookline 331, 342 
 
 Handelun v. Burlington, C. K. & N. R R 161, 480 
 
 Handyside v. Powers 139 
 
 Hankins v. New York, L. E. & W. R. R 399, 470 
 
 Hankinson v. Charlotte, &c. B. R 268 
 
 Hanks v. Boston & Albany R. R 99 
 
 Hanley v. Grand Trunk R. R 439 
 
 Hanlon v. South Boston R. R. . 254, 311 
 
 V. Thompson 600 
 
 Hannen p. Pence 185 
 
 Hanscom v. Boston 330, 349 
 
 Hansford v. Paine 23 
 
 Hanson v. Ludlow Manu'f Co 404 
 
 V. Warren 347 
 
 Hard v. Vermont & Canada R. R 397, 398 
 
 Hardcastle v. South Yorkshire Railway 116, 129, 364 
 
 Harder v. Minneapolis 356 
 
 Hardy v. Brooklyn 315 
 
 V. Keene 76, 318, 360 
 
 V. Minneapolis & St. L. R. R 458 
 
 V. Shedden Co 400 
 
 Hare v. Mclntire 476 
 
 Hargis v. St. Louis, A. & T. R. E • . . 261 
 
 Hargreaves v. Deacon 116 
 
 Harker v. Burlington, C. R. & N. R. R 276 
 
 Harkins v. Standard Sugar Refinery 443 
 
 Harley v. Buffalo C. M. Co 388 
 
 Harlow v. Humiston . 237 
 
 Harper v. Barnard 303 
 
 V. Erie R. R 292 
 
 V. Indianapolis & St. L. R. R 393, 444, 446 
 
 Harrigan v. Hoosick Falls 347 
 
 Harriman v. Pittsburg, C. & St. L. R. R. . 106, 121, 126, 145, 161, 210 
 
 Harrington v. Buffalo 346, 348, 349 
 
 V. Kansas City Cable Co 396 
 
 V. New York Central & H. R. R. R 268, 394 
 
 Harris v. Baker 76 
 
 V. Clinton 308 
 
 V. Cohen 141 
 
 V. Commercial Ice Co 265 
 
 V. Hannibal & St. Jo. R. R 286 
 
 V. Hewett 435 
 
 Harrison v. Detroit, L. & N. R. R 466, 473 
 
 Hart V. Cole jOO 
 
INDEX TO CASES CITED. Ivii 
 
 Hart V. Naumberg 380 
 
 ». Washington Park Club 180 
 
 V. Windsor 133, 134 
 
 Hartfield v. Eoper 172, 175 
 
 Hartford v. Northern Pac. E. R 481 
 
 Hartford Dep. Co. v. Sollitt 192 
 
 Hartley v. Harriman 223 
 
 Hartman v. Muehlbach 109 
 
 HartweU v. Rockport 322 
 
 Hartzig v. Lehigh Valley R. R 222 
 
 Harwood v. Lowell 91, 316 
 
 V. Oakham 337 
 
 Haskell v. New Bedford 85 
 
 Haskin t;. New York Central & H. R. R. R 394, 397, 422 
 
 Hassenyer v. Michig^ Central R. R 258 
 
 Hastings v. Stetson 235 
 
 Hasty V. Sears 43, 460 
 
 Hathaway v. Des Moines 474 
 
 V. East Tennessee, V. & G. R. R 150 
 
 V. Toledo, Wabash & W. R. R 241 
 
 Hathorn v. Richmond 235 
 
 Hatt V. Hay 407 
 
 Haughey v. Hart 116, 363 
 
 Havens v. Erie R. R 237 
 
 Haverstick v. Fenn. R. R 301 
 
 Hawes v. Knowles 51 
 
 Hawkins v. Cooper 237 
 
 Hawks V. Charlemont 86 
 
 V. Northampton 366 
 
 V. Winans ■ 162 
 
 Hawley v. Chicago, B. & Q. R. R 277 
 
 Hawver v. Whalen 62 
 
 Hay r. Cohoes Co 145 
 
 Hayden v. AtUeborongh 336, 338 
 
 V. SmithviUe Manuf g Co 387, 425, 449 
 
 Hayes v. Forty Second Street, &c. R. R 294 
 
 V. Hyde Park 321 
 
 V. Michigan Central R. R 116, 186, 363 
 
 V. Norcross 269 
 
 V. Northern Pac. R. R 243 
 
 V. Philadelphia & R. Coal & Iron Co 106 
 
 V. West Bay City 347 
 
 V. Western R. R 425 
 
 Haynes v. Raleigh Gas Co 184 
 
 Hays V. Wabash R. R 213 
 
 Hazard v. Council BlufEs 308 
 
 Hazlett V. PoweD 134 
 
 Head v. Georgia Pacific R. R 70, 196, 197 
 
 Healey v. Dry Dock, &c. RaUway 239 
 
 Heaney v. Long Island R. R 306 
 
Ivili INDEX f e^SES CITED. 
 
 Hearne v. Waterbnry Hospital 66 
 
 Heath v. Glisan 235 
 
 V. Stewart 215 
 
 V. Whitebreast Coal Co 437 
 
 Heaton v. Kansas City, P. & G- K. K 291 
 
 Heaven v. Pender 105, 120 
 
 Hector v. Boston Electric Light Co. . 233 
 
 Hedges v. Madison 79 
 
 Heeney v. Sprague 138 
 
 Heffinger v. Minneapolis, M- & N- B. K 298 
 
 Hegeman v. Western R, K 75 
 
 Heidenwag v. Philadelphiai 56 
 
 Heimstreet v. Howland . 141 
 
 Hein v. Fairchild 356 
 
 Heininger v. Great Northern Railway 208 
 
 Heinlein v. Boston & Providepce B, R 130, 194 
 
 Heisey v. Rapho 309, 311 
 
 Heiter v. E. St Louis, &c. R. R, 113 
 
 Heland v. Lowell ,..,,... 253 
 
 Heller ». Sedalia 76 
 
 Helwig V. Jordan : 140 
 
 Hemhling v. Grand Rapid^ 350 
 
 Hemstead v. Phoenix Gas Light, & C. Co 232 
 
 Henderson V. Knickerbocker Ice. Co , . , . 119 
 
 Hendricken v. Me,adow§ 265 
 
 Henion «. N. Y., N. H. & H. R. R 386, 418 
 
 Henkes v. Minneapolis 345, 347 
 
 Hennessey v. New Bedford 76, 83 
 
 Herbert v. South Pap. Co 186 
 
 Herlisch v. LouisTille, N. 0. & T. R. R 297 
 
 Herold v. Pfister 271 
 
 Herrick v- Minn. & St. L- R. R 37 
 
 Herriman v. Chicp.go & Alton R. R 463 
 
 Hershey v. MiUcreek Cgminissioners 268 
 
 Heske v- Samuelson . 498, 499 
 
 Hesse v. Railroad Cq ,.....«... 385 
 
 Hesser v, Grafton 309 
 
 Hestonville Passenger R. R. v. Connell . . . . , 122 - 
 
 Hewes v, McNamara 224 
 
 Hewett V. Swift 40, 46, 62, 67 
 
 Hewison V. New Haveu 82, 87, 91, 316, 342 
 
 Hewitt V. Flint 8? Pere Marquette R. R 381, 384 
 
 ■i>. Taunton Street Railwp^y 272 
 
 Hey V- Philadelphia 339 
 
 Hiatt V. Des Moipes, N. & W. R. R 213 
 
 Hibbard v. New York & Erie R. R , 47, 285 
 
 V. Thompson J57, 236 
 
 Hickey v. Boston & Lowell B. R 260, 286 
 
 V. Merchants' & Miners' Transportation Co 45 
 
 V. St. Paul City Railway 302 
 
INDEX TO CASES CITED. Ux 
 
 Hickey v. Taaffe 4Q4, 406, 409 
 
 Hickok V. Plattsbuig 93 
 
 Hicks V. New York, N. H. & H. K. R 185 
 
 Higgins V. Boston 158, 322 
 
 V. Butcher 2 
 
 V. Central N. E. &o. R. R 34 
 
 V. McCabe 235 
 
 V. North Andover 356 
 
 V. Watervliet Tompike Co 42, 48 
 
 V. Wilmington City Railway 222 
 
 High V. Carolina Cent. R. R 113 
 
 Highland Ave. R. R. v. Maddoz 302 
 
 V. Swope 144 
 
 Highland R. R. v. Donovan 294 
 
 HUdreth v. Lowell 85 
 
 Hill y. Boston ....': 79, 81, 86, 87, 91, 98 
 
 V. Maine Cent. R. R 208 
 
 V. Meyers Bros. Drug Co 244 
 
 V. Scott 222 
 
 Hilliard v. Richardson 42, 54 
 
 Hinckley v. Cape Cod R. R 247 
 
 V. Horazdowsky 405, 444 
 
 V. Somei-set 349, 352 
 
 Hinds V. Harboa 476 
 
 V. Overacker 476 
 
 Hine v. Cushing 137 
 
 Hiner v. Fond du Lac 367 
 
 Hinton v. Dibbin 147 
 
 Hinz V. Chicago, B. & N. R. R 412 
 
 i>. Starin 260 
 
 HLson V. Lowell 91, 333, 335, 343 
 
 Hoag V. Lake Shore & Mich. So. R. R 149 
 
 V. New York Central & H. R. R. R 170 
 
 Hobson V. New Mexico & A. R. R 244, 277, 457 
 
 Hodge V. Bennington 320 
 
 Hodgkins v. Eastern R. R 385 
 
 Hodnett v. Boston & A. R. R 23 
 
 HodsoU V. Stallebrass 9 
 
 Hoehn v. Chic, P. & St. L. R. R 291 
 
 Hoey V. Natick 332 
 
 Hoffman v. Clough 406 
 
 V. New York Central & H. R. R. R 104 
 
 V. San Joaquin County 91, 92 
 
 Hoffnagle v. New York Central & H. R. R. R 449 
 
 Hogan V. Chicago 324 
 
 V. Manhattan Railway 183 
 
 V. Tyler 303 
 
 Hogarth v. Pocasset Mannf g Co 411 
 
 Hogue r. Chicago & Alton R. R 188 
 
 Holbrook v. Aldrich 121 
 
Ix INDEX TO CASES CITED. 
 
 Holbrook v. Utioa & Syracuse R. R 287 
 
 Holden v. Fitchburg R. E 399, 401, 419, 447, 457, 474 
 
 V. Liverpool Gas Co 232 
 
 V. Penn. R. R 301 
 
 Hole V. Sittingbourne & S. Railway ....>.... 101, 326 
 
 Holland v. Bartch 312 
 
 V. West End St. Railway 268 
 
 HoUenbeck v. Berkshire R. R 23 
 
 Hollender v. New York Central & H. R. R. R 217 
 
 Holliday v. St. Leonards 77 
 
 Hollister v. Newton 189 
 
 Holly «. Boston Gas Light Co. 239,261 
 
 Holmes v. Clarke 438 
 
 V. Drew 104, 358, 359, 361 
 
 V. Northeastern Railway 108, 128 
 
 V. O. & C. RaUway 22 
 
 V. Paris 354, 355 
 
 V. South Pacific Co 279 
 
 D.Wakefield 46,63 
 
 V. Worthington 438 
 
 Homan v. Stanley 57, 116, 363 
 
 Homestake Mining Co. v. Fullerton 435 
 
 Hood V. New York & N. H. R. R 70 
 
 Hooker v. Chicago, M. & St. P. R. R 130, 173, 187 
 
 V. Miller Ill, 112 
 
 Hopkins v. Ogden 341 
 
 Hoppe I). Chicago, M. & St. P. R. R 173 
 
 Horan v. Chic, St. P. Sec R. R 279 
 
 Horey v. Haverstraw 331 
 
 Horgan v. Paoific.Mills 16 
 
 Horn V. Bait. & Ohio R. R 219 
 
 Home V. Meakin 6 225 
 
 Hornsby v. Eddy 65 
 
 Horrigan v. Clarksburg .....' 317 
 
 Horton v. Ipswich 239 
 
 V. Taunton 322 
 
 Hosic V. Chicago, R. I. & Pac. R. R 384 
 
 Hotel Association v. Walters 358 
 
 Hotis V. New York Central & H. R. R. R 378 
 
 Houfe V. Fulton 320, 321, 323, 325 
 
 Hough u. Texas & Pacific Railway 243, 372, 439, 445 
 
 Houghton V. Chic & G. T. R. R 297 
 
 Hounsell v. Smyth 102, 110, 115, 129, 364 
 
 Hourigan m. Nowell 231 
 
 House V. MetcaM 141 
 
 Houser v. Chicago, R. I. & Pac. R. R 480 
 
 Houston V. Brush 372 
 
 ». Great Northern R. R 327 
 
 "■ Isaacs 307, 350, 353, 355 
 
 V. Vicksburg, S. & P. R. R 300 
 
INDEX TO CASES CITED. Ixi 
 
 Houston & T. C. R. R. v. Brin 187, 207, 217 
 
 V. Carson 209 
 
 V. Garbett 166 
 
 V. Leslie 290, 292 
 
 V. Lowe 399 
 
 V. McNamara 382 
 
 V. Symkins 104 
 
 V. l^ey 481 
 
 Hover v. BarkhoS 138 
 
 V. Pennsylvania R. R 35 
 
 Howard v. Delaware & Hudson Canal Co 402, 457 
 
 V. Denver, &c. R. R 475 
 
 V. Grover 235, 277 
 
 V. Hood 454 
 
 V. Kansas CiJy, F. S. & G. R- R 304 
 
 V. Mendon 303, 340 
 
 V. North Bridgewater 320, 337 
 
 o. Northern Cent. R. R 300 
 
 V. Union Freight R. R 207 
 
 0. Worcester 87 
 
 Howard Counly v. Legg 307 
 
 Howard Oil Co. r. Davis 378 
 
 Howe V. Finch 499 
 
 V. Lowell 354 
 
 V. Newmarch 42, 50 
 
 Howell V. Illinois Cent. R. R 270 
 
 Howells V. Landore Steel Co 449, 452 
 
 Howland v. Vincent 116, 364 
 
 Howser v. Cumberland & F. R. R 184 
 
 Hoyt V. Danbuiy 315 
 
 V. Hudson 244 
 
 Hrebrik v. Carr 295 
 
 Hubbard v. Boston & Albany R. R 217, 220 
 
 Hubbell V. Yonkers 339 
 
 Huckshold V. St. Louis, Iron Mt. & So. R. R 186, 305 
 
 Huda V. American Glucose Co. 392 
 
 Huddleston v. Lowell Machine Shop 408, 415 
 
 Hudson r. Charleston, C. & C. R. R 372 
 
 V. Houser 222 
 
 V. Roberts 224 
 
 V. Wabash R. R. 244 
 
 V. Wabash Western R. R 188, 296, 300 
 
 Hueizeler t;. Cent. Traction Co. 172 
 
 Huey r. G^ahlenbeck 265 
 
 Hnghbanks v. Boston Liy. Co 54 
 
 Hughes V. Chic, St P. & K. C. R. R 304 
 
 V. Del. & H. Canal Co 296 
 
 V. Fond da Lac 350 
 
 V. Galveston, H. & S. B. R 300 
 
 V. Macfie 120 
 
Ixii INDEX TO CASES CITED. 
 
 Hughes V. Mooroe County 82 
 
 V. Orange Coun(y Milk Ass'b 62 
 
 Hrnne v. Mayor of New York 343 
 
 Humphrey v. Armstrong 79 
 
 Humphreys v. Mears 76, 77 
 
 Hundhausen v. Bond 60 
 
 Hunn V. Michigan Central R. R 444, 466, 470 
 
 Hunt ». Geir 176 
 
 V. Lowell Gas Light Co 232, 261 
 
 V. Mayor of New York 317, 335 
 
 ». Pownall 320 
 
 V. Salem 330 
 
 Hunter v. Wanamaker 148 
 
 Huntington v. Breen 308 
 
 Huntsinger v. Trexler 394 
 
 Hurt V. Southern R. R 196 
 
 Hussey v. Ryan 359 
 
 Hutchins v. Boston 345 
 
 V. Priestley Express Co 265 
 
 Hutchinson v. Western & Atlantic R. R 69 
 
 V. Wheeling M. & M. Bank 2 
 
 V. York, N. & B. Railway 440 
 
 V. Ypsilanti 346 
 
 Hutson V. King 363 
 
 V. Mayor of New York 93 
 
 V. Missouri Fac. R. R 456 
 
 Hyatt V. Adams 2, 20 
 
 Hyde v. Jamaica 79 
 
 V. Scyssor 18 
 
 Hydraulic Works v. Orr 118 
 
 Hygienic, &c. Co. v. Raleigh 182 
 
 Ihl v. Forty Second Street R. R 269 
 
 lUidge V. Groodwin 68 
 
 Illingsworth v. Boston Electric Light Co 233 
 
 Illinois Central R. R. v. Ashline 254 
 
 V. Barron 72 
 
 V. Campbell 412 
 
 V. Chambers 292 
 
 V. Crudup 35 
 
 V. Daniels 389 
 
 V. Godfrey 163 
 
 r. Handy 72 
 
 V. Jewell • . 394 
 
 V. Larson 149 
 
 V. Neer 165, 412 
 
 V. Read 201 
 
 ». Sanders 383 
 
 V. Slater 311 
 
 Illinois Steel Co. v. Mann 436 
 
INDEX TO CASKS CITED. Ixiii 
 
 nott V. Wilkes 110, 111 
 
 ntis V. Chicago. M. «e St. P. R. R 277, 402 
 
 Indemaur v. Dames 99, 371 
 
 Indiana, B. & W. R. R. v. Barnhart 167, 211 
 
 Indiana Car Co. v. Parker , .... 387 
 
 Indiana Central R. R. v. Munday 201 
 
 Indiana Mfg. Co. v. Millican 177 
 
 Indiana R. R. v. Spencer 169 
 
 Indianapolis v. Emmelman 126 
 
 Indianapolis & C. R. R. v. Rutherford 287 
 
 Indianapolis, D. & W. R. R. v. Wilson 297 
 
 Indianapolis, P. & C. R. R. v. Pitzer 112 
 
 Indianapolis R. R. v. Love 407 
 
 Indianapolis & St. L. R. R. v. Stout 18, 25 
 
 Ingalls V. Bills 189, 190 
 
 Inness v. Boston, Revere Beach & L. R. R 195 
 
 International & G. N. R. R. v. Beasley 407 
 
 V. Dyer 297 
 
 V. Garcia 153, 258, 266 
 
 V. Hester 278 
 
 V. Kuehn 298, 304 
 
 u. McDonald 187,217 
 
 V. Satterwhite 195, 290 
 
 V. Tabor 163 
 
 V. Tarver 413 
 
 V. Turner 427 
 
 V. Underwood 73 
 
 Interstate C. R. T. R. R. v. Fox 383, 438 
 
 Irey v. Pennsylvania R. R 298 
 
 Irmer v. St. Louis Brewing Co 399 
 
 Iron R. R. v. Maury 185 
 
 Irvine v. Wood 140 
 
 Isaacs V. Third Avenue R. R. 293 
 
 Isabel V. Hannibal & St. Jo. R. R 106, 175 
 
 Israel v. Clark 189 
 
 Iveson V. Moore 360 
 
 Jackson o. Greenville 329 
 
 o. Hill 490 
 
 V. Pittsburg, C. C. & St. L. R. R 19 
 
 o. Smithson 228, 224 
 
 Jacob V. Flint & P. M. R. R 260 
 
 Jacobs o. Pollard 369 
 
 Jacobus V. St. Paul & Chicago R. R 198, 201 
 
 Jacques o. Golightly 369 
 
 JafEe ». Harteau 138, 134 
 
 Jagger o. Peoples' Street Railway 214 
 
 James v. Christy 19 
 
 t>. Ford 265 
 
 V. Muehlebach 46 
 
Ixiv INDEX TO CASES CITED. 
 
 James v. Portage City 324 
 
 Jamison ». Ches. & Oliio R. R 288 
 
 Jaquish v. Ithaca 354 
 
 Jamek v. Manitowoc Co 471 
 
 Jefferson ». Chapman 327, 341, 350 
 
 V. Jameson 54 
 
 Jeffersonville, M. & I. R. R. v. Bowen 176 
 
 V. Riley 194 
 
 Jeffrey v. Detrpit 107 
 
 Jenkins v. Tucker 369 
 
 Jenks V. Wilbraham 179 
 
 Jennings v. Tisbury 324, 326 
 
 V. Van Schaick 142, 307, 358 
 
 Jensen v. Mich. Cent. R. R 297 
 
 V. Waltham 83 
 
 Jetter v. New York Central & H. R. R. R 254, 311 
 
 Jewett V. Keene 119 
 
 V. New Haven 76 
 
 Jewhurst ». Syracuse 337 
 
 Jobe V. Memphis & C. R. R 303 
 
 Johanson v. Boston & Maine R. R 107 
 
 Johnson v. Ashland Water Co 451 
 
 e. Baltimore & Potomac R. R 217 
 
 V. Boston 345 
 
 V. Boston & Maine R. R 100 
 
 V. Boston Tow Boat Co 451 
 
 V. Chesapeake & Ohio R. R 163, 303 
 
 V. Chicago, R. I. & Pac. R. R 53 
 
 V. Dixon 133 
 
 ». Hudson River R. R 162, 243, 244 
 
 V. Lake Superior Terminal Co 130 
 
 V. Lindsay 452, 461 
 
 D. Ott 54 
 
 V. Reading Railway 152 
 
 V. Spear 371, 443 
 
 V. West Chester & P. R. R 258 
 
 Johnston v. Richmond & D. R. R 244 
 
 Joliet V. Shufeldt 323 
 
 V. Verley 95, 333 
 
 Joliet Steel Co. v. Shields 180, 472 
 
 Jonash v. Standard Gas Light Co 173 
 
 Jones V. Andover 323, 324 
 
 II. Baltimore & Potomac R. R 260, 273 
 
 u. Bird 77 
 
 V. Boston & Albany R. R 488 
 
 V. Boston & Maine R. R. . . . - 193 
 
 V. Boyce 292 
 
 V. Brown 15 
 
 V. Carey 226 
 
 V. Corporation of Liverpool 168 
 
INDEX TO CASES CITED. Ixv. 
 
 Jones V. East Tennessee, V. & G. K. R 419, 492 
 
 «• Fay 235 
 
 V. Florence Mining Co 404 
 
 V. Lake Shore & Mich. So. K. R. ...... . 429, 433, 434 
 
 V. Malvern Lumber Co 244 
 
 V. New Haven 87 91 
 
 V. Voorhes 198 
 
 V. Waltham 3gQ 
 
 Jordin v. Cramp Hl^ I29, 354 
 
 Joseph Stickney, The IO5 
 
 Joslyn V. Detroit 347 
 
 Jucht V. Behrens 265 
 
 Judge V. Cox 228, 225 
 
 Judson V. Olean • 449 
 
 June V. Boston & Albany R. R I94 
 
 Jung V. Stevens Point 14g 
 
 Eaus v. Shattuck 140 
 
 Eaminitsky v. Northeastern R. R 150 
 
 Kane t'. New York, N. H. & H. R. R 297 
 
 V. Northern Central R. R 418, 435, 492 
 
 Eannenburg v. Alpena 345 
 
 Kansas & Ar. VaUey R. R. v. Dye 280 
 
 V. Waters 458 
 
 V. White 288 
 
 Kansas Central Railway v. Fitzsimmons 126 
 
 Kansas City, Fort Smith & Gulf R. R. v. Kier 280 
 
 Kansas City M. & B. R. R. v. Burton 502 
 
 V. Crocker 244 
 
 Klansas City, &c. R. R. v. Kirksey 383 
 
 V. Lackey I44 
 
 Kansas Pacific R. R. v. Miller 29 
 
 V. Peavey 166, 507 
 
 V. Whipple 113, 151 
 
 Karrer v. Detroit, G. H. & M. R. R 278 
 
 Kaspari v. March 37I 
 
 Kanfhold v. Arnold 409 
 
 Kaveney v. Troy 345, 347 
 
 Kay V. Pennsylvania R. R I75 
 
 Kaye v. Rob Roy Hoisery Co 380 
 
 Keane v. Waterford 345, 347 
 
 Kearney v. Boston & Worcester R. R 23, 24 
 
 V. London, Brighton, &c. Railway 362 
 
 Kearney El. Co. v. Langhlin 244 
 
 Keates r; Cadigan I34 
 
 Keefe v. Boston & Albany R. R 020 
 
 V. Chicago 329 
 
 V. Chicago & N. W. R. R II3 
 
 Keegan v. Western R. R 379 
 
 Keenan o. N. Y., L. E. & W. R. R 458 
 
Ixvi INDEX TO CASES CITED. 
 
 Keene v. Millwall Dock Co 488 
 
 Keese v. New York, N. H. & H. R. R 237 
 
 Keffe V. Milwaukee & St. P. R. R 125 
 
 Keightlinger v. Egan 225, 226 
 
 Keim v. Union Railway & Transit Co 187, 216 
 
 Keitel v. St. Louis Cable & W. R. R 244 
 
 Keith V. Easton 335, 337 
 
 V. New Haven & Northampton Co 384, 394, 469 
 
 Kellard v. Rooke 465, 503 
 
 Kelley v. Fond du Lac 308, 320, 323, 337 
 
 V. Norcross 442 
 
 V. Silver Spring Co 389 
 
 «. Tilton 224 
 
 Kelly V. Boston Lead Co 439 
 
 i>. Doody 308 
 
 V. Mayor of New York 56 
 
 V. Pennsylvania R. R 298 
 
 V. Union Railway & Trans. Co 112 
 
 Kelsey v. Glover 318, 320, 339 
 
 Kendall v. Albia .334 
 
 Kennard v. Burton 241 
 
 Kennedy v. Cumberland 324 
 
 V. Denver, St. P. & P. R. R 154, 258, 267 
 
 V. Lansing 338 
 
 V. Manhattan Railway 393 
 
 D. Pennsylvania R. R 412 
 
 V. Standard Sugar Refinery 24 
 
 Kenney v. Hingham Cordage Co 408 
 
 V. Shaw 503 
 
 Kennon v. Gilmer 224 
 
 Kenny v. Cunard Steamship Co 439, 450 
 
 V. Shaw 414 
 
 Kentucky Central R. R. v. Gastineau 119, 144 
 
 Kenworthy v. Ironton 308, 339 
 
 Kenyon v. New York Central & H. R. R. R 239 
 
 Keokuk Northern Line Packet Co. v. True 295 
 
 Keown v. St. Louis Railway 455 
 
 Kern v. De Castro & Donner Sugar Refinery 380, 409 
 
 Kerr v. Forgue 126, 165, 271 
 
 V. Keokuk Waterworks 55 
 
 Kerwhacker v. Cleveland, C. & C. R. R 110 
 
 Kestner v. P. & B. Traction Co 222 
 
 Kewanee v. Depew 239 
 
 Kidder v. Dunstable 178, 312, 318, 319 
 
 Killea r. Faxon 467 
 
 Killien v. Long Island R. R 157 
 
 Kimball v. Bath 327 
 
 V. Cushman 43 
 
 V. Friend 244 
 
 Kimmell v. Burfeind 138 
 
INDKX TO CASES CITED, Ixvii 
 
 Kimmer r. Webber 392 
 
 Kincaid v. Kansas City, C. & S. R. E 159 
 
 King V. Boston & Worcester K. R 404, 457 
 
 V. Dewsnap 3 
 
 V. Missouri Pacific R. R 29 
 
 V. Ohio & Miss. R. R 192 
 
 V. Oshkosh 330, 341, 353 
 
 V. Pedley 139 
 
 V. Rnssell 318 
 
 V. Thompson 149, 308 
 
 Kinney ». Corbin 451 
 
 V. Lonisrille & N. R. R. ..." 52 
 
 V. New Jersey Central R. R 200 
 
 V. North Carolina R. R 185 
 
 "• Troy 345, 347 
 
 Kirby v. Boylston Market Ass'n 140 
 
 Kirst V. Milwaukee, I. S. & W. R. R 184 
 
 Kittredge v. EDiott 224 
 
 Kivem v. Providence, G. & S. Mming Co 439 
 
 Kleigel v. Aitkin 392 
 
 Klein v. Dallas 93 
 
 V. Jewett 65, 289 
 
 Kleinest c. Knnhardt 411 
 
 Kligel V. Weisel Co 451 
 
 Kling V. Kansas 337 
 
 Klix V. Nieman Il6, 119 
 
 EQochinski v. Shores Lumber Co 474 
 
 Knickerbocker Ice Co. v. Finn 280 
 
 Knight V. Fox 61 
 
 ». Portland, S.& P. R.E 70 
 
 Knightstown v. Musgrove 169 
 
 Knowlton v. Pittsfield 359, 361 
 
 Kohn e. Lovett 110, 364 
 
 Kolstoi V. Minn. & St. L. R. E • 125 
 
 Koney v. Ward 224 
 
 Koons V. St. Louis & Iron Mt. R. R 125 
 
 Koosorowska v. Glasser 416 
 
 Kometzski v. Detroit 333 
 
 Kossman v. Stutz 265, 274 
 
 Krenziger v. Chicago & Northwestern R. R 179 
 
 Kroener v. Chicago, M. & St. P. R. R 276 
 
 Krogg ». Atlanta & W. P. R. R 207, 473 
 
 Kroy V. Chicago, R. I. & Pac. R. R 394, 414 
 
 Kruse v. Chicago, M. & St. P. R. R 481 
 
 Kuhn V. Walker 311 
 
 Kuhns V. Wisconsin, I. & N. R. R 181 
 
 Kulwicki V. Monroe 55 
 
 Kunz V. Troy 84, 93, 126, 172, 271, 349 
 
 Kwiotowski v. Chicago & G. T. R. R 186, 299 
 
 Kyne o. Wilmington & N. E. R 172 
 
Ixviii INDEX TO CASES CITED. 
 
 La Crossk v. Melrose . 356 
 
 Ladd V. Foster 257 
 
 V. New Bedford R. R 273, 378 
 
 Lafayette & Indianapolis R. R. v. Huffman 172, 410, 424 
 
 Laflin v. Buffalo & S. W. R. R 390 
 
 La Fortune v. Jolly 401 
 
 La Grove v. Mobile & O. R, R, 456 
 
 Laing «. Colder ....-., ... 124, 181, 287 
 
 Lake Erie & Western Railway v. Acres 46 
 
 V. Craig 186, 278 
 
 V. Mjddletpn 451 
 
 Lake Roland Co. v. MoKewen .... 209 
 
 Lake Shore & Mich. So. R. R. v. Bangs 291, 292 
 
 V. Bodemer 110, 163 
 
 r. Lavalley .... 481 
 
 V. Mcintosh 171 
 
 V. Miller 818 
 
 V. Murphy 277 
 
 V. Ouska 149 
 
 V. Parker 278 
 
 Lake Superior Iron Co. «. Erickson 59, 377 
 
 Lakin v. Williamette Valley & C. R. R 73 
 
 Lalor V. Chicago, B. & Q. R. R 429, 433 
 
 Lalthen v. Fort Wayne, &o. R. R 188 
 
 Lamb v. Old Colony R. R 207 
 
 V. Los Angeles Terminal R. R. 213 
 
 Lambeck v. Grand Rapids R. R 157 
 
 Lamotte v. Boyce 388 
 
 Lampkin v. Louisville & N. R. R 53 
 
 Lanark v. Dougherty 165 
 
 Landon v. Humphrey 235 
 
 Landrue v. Lund 358 
 
 Lane v. Atlantic Works 166, 179, 186 
 
 V. Crombie 239 
 
 V. Hancock 316 
 
 V, Minn. State Agric. Society 223 
 
 Lang V. New York, L. E. & W. R. R 44 
 
 Langan v. Atchison 308, 331, 343 
 
 Langridge v. Levy 157 
 
 Lanigan v. New York Gas Co 232 
 
 Laning v. New York Central R. R. 373, 377, 396, 397, 423, 435, 442, 462 
 
 Lannen v. Albany Gas Light Co 167, 232, 402 
 
 Lanning v. Chicago, B. & Q. R. R 211 
 
 Lanphier v. Phipos 235 
 
 La Pierre v. Chicago & G. T. R. R 455 
 
 Larken v. O'Neill . . " 103 
 
 Larkin v. Burl., C. R. & N. R. R. . 171 
 
 Larmore v. Crown Point Iron Co 103, 129, 132, 146 
 
 Larson v. St. Paul, M. & M. R. R 412, 480 
 
 Larsson v. McClure 411 
 
INDEX TO CASES CITED. Ixix 
 
 Larue v. Farren Hotel Co 140 
 
 Lasnre v. Manof' g Co 415 
 
 Latham v. Roach 101 
 
 Laubheim v. Steamship Co 67 
 
 Laugher v. Pointer 59 
 
 Laughlin v. State 458 
 
 Lavalee v. St. Paul, M. & M. R. E 479 
 
 Lawless t>. Connecticut River R. R. . . 273, 376, 385, 408, 419, 445, 491 
 
 Lawley v. Androscoggin R. R 449 
 
 Lawrence o. Fairhaven 85 
 
 V. Mangianti 224 
 
 Lax V. Mayor of Darlington 407 
 
 Lay V. Richmond & Danville R. B 112 
 
 LazeUe v. Newfane 241, 247 
 
 Learoyd ». Godfrey . ► 139 
 
 Leaiy v. Boston & Albany R. R 428, 429 
 
 Leavenworth v. Laing 325 
 
 Lebanon Co. v. Leap 61 
 
 Lebbering v. Strutheis 401 
 
 Le Clair v. St. Paul & Pacific R. R 444 
 
 Le Croy v. New York, L. E. & W. R. R 279, 378 
 
 Leddy o. Gibson 452 
 
 Lee V. Barrow Steamship Co 374 
 
 V. Chicago, R. I. & Pac. R. R 217 
 
 V. Smart 417 
 
 V. South Pacific R. R 415 
 
 Leech v. Agnew 16 
 
 Lees V. Phil. & R. R. R 301 
 
 Lehigh & Wilkes-Barre Coal Co. v. Hayes 387, 402 
 
 Lehigh Valley Coal Co. v. Jones 470 
 
 Lehman v. Brooklyn 172 
 
 V. Brooklyn City R. R 158 
 
 Lehr V. Stein way & Hunter's Point R. R 294 
 
 Leighton v. Sargent 235 
 
 Lendberg v. Brotherton Iron Mining Co 247 
 
 Lennon v. Rawitzer 372 
 
 Leuz V. Whitcomb 297 
 
 Leonard v. Columbia Steam Navigation Co 33, 34 
 
 V. Storer 142 
 
 Lepnick v. Gaddis 363 
 
 Lesan v. Maine Central R. R 296 
 
 Leslie v. Lewlston 172, 328 
 
 V. Pounds 141 
 
 Levi V. Brooks 50 
 
 Levy V. Langridge 157 
 
 Lewis V. Atlanta 353 
 
 I'. Del. «E H. Canal Co 193, 195 
 
 V. London, Chatham & D. Railway 220, 291 
 
 V. New York & N. E. R. R. 437 
 
 Leydecker v. BrintnaU 136 
 
IXX INDEX TO CASES CITED. 
 
 ■Libbey v. Greenbush ^'° 
 
 Liiaby »., Maine Central R. R 198, 205 
 
 '• K. Scherman *^" 
 
 Liohtenberger »,. Meriden 264 
 
 Liffin V. Beverley 356 
 
 Lincb p. Pittsburg Traction Co. . , 293 
 
 Lincoln «. Beckman 330 
 
 b. Detroit 331 
 
 V. Smith 349 
 
 Lincoln Rapid Transit Co. v. Nichols 257 
 
 Lincoln Street R. R. v. Cox 244, 278 
 
 Lindhohn «. St. Paul 349 
 
 Lindsey i\ Desmoines 307 
 
 B. Leighton 135 
 
 Lindvall v. Woods 448 
 
 Liueoski v. Susquehanna Coal Co 470 
 
 Link V. Sheldon f 235 
 
 Linnehan v. Sampson 224, 257 
 
 Little V. Hackett 166 
 
 V. Macadaras , 137 
 
 Littlejohn v. Fitchburg R. R , 75, 196 
 
 V. Richmond & D. R. R 219 
 
 Little Miami R. R, v. Fitzpatrick 469 
 
 V. Stevens 474, 481 
 
 r. Wetmore 58 
 
 Little Rock & Fort Smith R. R. v. Caveness 300 
 
 V. Levette . 282 
 
 V. Townsend 382 
 
 Little Rock & M. R. R. v. Moseley 399 
 
 Little Rock, M. & T. R. R. v. Levette 382 
 
 Lloyd V. Mayor of New York 86 
 
 Loberg v. Amherst 353 
 
 Locke V. Sioux City R. R 480 
 
 Lockhart v. Lichtenthaler 167, 310 
 
 ». Little Rock & M.R. R 68,276. 
 
 Loeffler v. Missouri Pacific R. R 260 
 
 Lofrano v. New York & Mt. Vernon Water Co 401, 444, 461 
 
 Loftus V. Union Ferry Co 191 
 
 Logan V. New Bedford 339 
 
 Logansport p. Dick 327 
 
 I^ondon, Brighton & S. Coast Railway v. Walton 241 
 
 London & Northwestern Railway v. Dunham 200 
 
 Long V. Morrison 9, 27 
 
 V. Philadelphia & R. R. R 271 
 
 Longmeid v. Holliday 230 
 
 Loomis V. Terry 110, 111, 226 
 
 Looney v. McLean 136 
 
 Lord ». Pueblo Smelting & Mining Co 403 
 
 Lorenzo v. AVirth 104 
 
 Lothrop V. Fitchburg R. R 275, 413 
 
INDEX TO CASES CITED. Ixxi 
 
 Lott V. Frankford, &o. £. R 209 
 
 Loughlin v. State 401, 453, 466 
 
 Louisiaua, The , 4g4" 
 
 Louisville & C. R. R. v. Hawthorn , 4ol 
 
 V. Utz 277 
 
 Louisville & Nashville R. R. «. Brico 385 
 
 V. Burke 052 
 
 V. Coleman 215, 219 
 
 V. Collias 474 
 
 V. ConifE 215 
 
 V. Copas 244 
 
 V. Coulton 372 
 
 V. Gower 233 
 
 v. Hurt , 119 
 
 V. Johnson ...» 268 
 
 V. Kelly . 414 
 
 »• Long 144 
 
 V. Markee I44, 147 
 
 ». Mothershed 279 
 
 V. Perry 278 
 
 V. Phillips 249 
 
 V. Ritter 190 
 
 V. Schmidt 208 
 
 V. Schuster 244 
 
 V. Sheets 456 
 
 V. Sickings 287 
 
 V. Stacker 456 
 
 V. Wilson 278 
 
 b. Witter 205 
 
 LouisviUe, C. & L. R. R. ». Case 169 
 
 Louisville, N. A. & C. R. R. v. Bates 384 
 
 V. Berkeley 461 
 
 V. Brice 385 
 
 V. Buck 884, 414 
 
 V. Creek 169 
 
 V. Graham 473 
 
 r. Jones 181 
 
 V. Perry 278 
 
 V. Sandford 414 
 
 V. Treadway 213 
 
 1). Wolfe 46 
 
 V. Woods 215 
 
 V. Wright 414 
 
 LouisviUe, N. & G. S. R. R. o. Fleming 165 
 
 Louisville, N. O. & T. R. R. v. Hiisch 213 
 
 V. Petty 458 
 
 Louisville & Portland Canal v. Murphy 127, 175 
 
 Love V. Raleigh 84 
 
 Lovejoy v. Boston & Lowell R. R 273 
 
 Lowe 17. Chic., St P. &c. R. R 280 
 
Ixxii INDEX TO CASES CITED. 
 
 Lowell V. Boston & Lowell K. K 59, 327, 365, 368, 370 
 
 V. Glidden 368 
 
 V. Short 368, 370 
 
 V. Spaulding 368 
 
 V. Watertown 308 
 
 Lucas V. New Bedford & Taunton R. K 260, 291 
 
 V. Pennsylvania Co 213 
 
 Ludwig V. Pillsbuiy 269 
 
 Luebke v. Berlin M. Works 271 
 
 Lumis V. Philadelphia Traction Co 264 
 
 Lumley v. Caswell 437 
 
 Lund V. Hersey Lumber Co 462, 468 
 
 Luther v. Worcester 346 
 
 Lutton V. Vernon 248, 340 
 
 Lyman v. Amherst 340 
 
 V. Hampshire 261 
 
 Lynam v. Union Railway 261 
 
 Lynch v. Allen 415 
 
 V. Boston & Albany R. R 277 
 
 V. Brooklyn City R. R 179 
 
 V. Davis 21 
 
 V. Hubbard 314 
 
 V. New York 268 
 
 V. Nurdin 117, 122, 123, 269 
 
 »• Smith 172, 270, 272 
 
 Lynn v. So. Pacific Co 205 
 
 Lyons v. Desotelle 253 
 
 V. Martin 50 
 
 V. Merrick 224, 227 
 
 V. Rosenthal 184 
 
 Maccarty v. Brooklyn 352 
 
 Mack V. Lombard & St. Paul R. R I59 
 
 Mackay v. New York Central R. R 395 
 
 Mackey v. Vicksburg ]^26 152 
 
 Mackie v. West Bay City 264 
 
 Mackin v. Boston & Albany R. R 439 
 
 Macy «. St. Paul & Dnluth R. R .' .' 468,469 
 
 Mad River & L. E. R. R. v. Barber 407 414' 425 
 
 Madden v. Mo. Pacific R. R '. . ' 218 
 
 ». Springfield 357 
 
 Magee v. Northern Pacific R. R ! 415 
 
 "■ Troy 352 
 
 Maggi V. Cutts 224 
 
 Magnin v. Dinsmore 200 
 
 Magoon v. Boston & Maine R. R ! ! 300 
 
 Maguire v. Fitohburg R. R 247 273 
 
 V. Little 264 
 
 V. Magee [ [ 55 
 
INDEX TO CASES CITED. Ixxiii 
 
 Maguire v. Middlesex R. R 268 
 
 Maharajah, The 389 
 
 Maher v. Manhattan Railway 191, 205 
 
 V. Thropp 372 
 
 Mahew v. Sallivan Mining Co 417 
 
 Mahogany v. Ward 160 
 
 Mahon v. Ida Mining Co 470 
 
 Mahoney v. Atlantic & St. L. R. R 73, 141 
 
 V. Metropolitan R. R 309 
 
 «. N. Y. & N. E. R. R 502 
 
 Maitland v. Gilbert Paper Co 435 
 
 Malcolm v. Fuller ■ 414^ 503 
 
 Mallach v. Ridley 60 
 
 MaUen v. Boynton 236 
 
 Malone v. Burlington, C. R. & N. R. R 480 
 
 V. Hathaway 448, 450, 462 
 
 V. Hawley 101 
 
 V. Western Transportation Co 453 
 
 Maloy V. Council Bluffs 308 
 
 Manchester R. R. v. Brown 200 
 
 ManderschUd v. Dubuque 324 
 
 Mangam v. Brooklyn City R. R 172, 269 
 
 Mangan v. Atterton 121, 127 
 
 V. Foley 46 
 
 Manley v. Boston & Maine R. R 803 
 
 V. Del. & H. Canal Co 249, 296 
 
 Mann v. Boston & Worcester R. R 23 
 
 V. Delaware & Hudson Canal Co 396, 401 
 
 V. Philadelphia Traction Co 294 
 
 Mann Boudoir Co. v. Dupre 53 
 
 Manning v. Burlington, C. R. & N. R. R 480 
 
 V. Chic. & W. Mich. R. R 393 
 
 Manross v. Oil City 347 
 
 Mansden v. Eddy 413 
 
 Manser v. Eastern Counties Railway • . 379 
 
 Mansfield v. Baddeley 430 
 
 V. Moore 336 
 
 Manufacturing Co. v. Morrissey 435 
 
 Manville v. Cleveland & Toledo R. R 394, 455 
 
 Marble v. Ross 110, 112, 164, 165, 226 
 
 V. Worcester 154, 178 
 
 Marcella, The 454 
 
 Marden v. Boston & Albany R. R 270 
 
 Marion v. Chic, R. I. & Pac. R. R 63, 115 
 
 Marks v. Fitehburg R. R 107 
 
 ». Petersburg R. R 303 
 
 Mars V. Delaware & Hudson Canal Co 161 
 
 Marsh v. Benton County 238 
 
 V. Hand 58 
 
 V. Jones 228 
 
Ixxiv INDEX TO CASES CITED. 
 
 Marshal v. Head 139 
 
 Marshall v. Stewart 443 
 
 vt Widdicombe Furniture Co. . . • 182 
 
 V. York, N. & B. Railway 5, 11 
 
 Martin v. Great Northern R. R 242 
 
 V. Martin 2 
 
 Martineau v. Nat. Blank Book Co 410, 415 
 
 Martinez v. Gerber 3, 10, 14 
 
 Marty v. Chicago, St. P., M., & O. K. R 296, 306 
 
 Mary Lee, &c. R. R. v. Chambliss 180 
 
 Mary's Case 10 
 
 Mason v. Chic, R. I. & Pac. R. R 130 
 
 V. Keeling 223 
 
 V. Richmond & D. R. R 474 
 
 Massoth V. Delaware & Hudson Canal Co 248 
 
 Masters v. Troy 354, 356 
 
 V. Warren 319 
 
 Masterson v. Macon City R. R 293 
 
 Mather v. Rillston 393 
 
 Matteson v. Strong 227 
 
 Mattey v. Whittier Machine Co 173 
 
 Matthews v. Atlantic & N. C. R. R 113 
 
 V. Bonsee 129 
 
 V. Case • 453 
 
 t). Del., L. & W. R. R 40 
 
 17. West London Waterworks Co 59, 61, 62 
 
 Matti V. Chicago & W. Mich. R. R 299 
 
 Mattise v. Ice Co 461 
 
 Matz V. St. Paul City Railway 294 
 
 Maximilian v. Mayor of New York 315 
 
 May V. Boston 357 
 
 0. Burdett 223 
 
 V. Central R. R. & Banking Co 259 
 
 V. Nahant 322 
 
 Mayer v. Thompson-Houston Co. 55 
 
 Mayo V. Boston & Maine R. R 240, 249, 261 
 
 Mayor of Colchester v. Brooks 229 
 
 Mayor of Lyme Regis v. Henley 90, 98 
 
 Mayor of Lynn v. Turner 90, 98 
 
 Mayor of New York v. Furze 87 
 
 II. Sheffield 96, 98 
 
 Maysville Street R. R. v. Marion 28 
 
 Maywood v, Logan 135 
 
 McAdoo V. Richmond & DanviUe R. R 146 
 
 McAllister v. Albany 327, 341 
 
 McAndrews ». Burris 449 
 
 McAuley v. Boston 346 
 
 McAunich ». Mississippi & M. R. R 482 
 
 McBain v. Smith 2 
 
 MoCabe v. Manhattan Railway 179 
 
INDEX TO CASES CITED. IxXV 
 
 McCafEerty v. Spuyten Devil & P. M. R. R 101 
 
 McCaig V. Northern Paciflo R. R 458 
 
 McCain I). Chic, B. &Q. R. R 155 
 
 McCamus v. Citizens' Gas Co 60 
 
 McCandless V. Chicago & Northwestern R. R 167 
 
 V. McWha 235 
 
 McCann v- Cons. Traction Co , 48 
 
 V. Waltham , 76 
 
 McCarthy v. Chicago, R. I. & Paciflo R. R 35 
 
 V. Foster 134 
 
 V. Guild 9 
 
 McCarty v. Fitohburg R. R 128 
 
 McCaskill v. Elliott 224, 225 
 
 McCauley v. Fiirness Railway 200 
 
 V. Norcross 161, 179 
 
 McCaull V. Bruner 176 
 
 McClain v. Garden Grove 323 
 
 McClung V. Dearborn _ 44, 48 
 
 McClure v. Sparta 318 
 
 McCombs V. Akron 86 
 
 McCone v. Michigan Central R. R 101, 132 
 
 McCord V. Cammell 505 
 
 McCorkle v. Chicago, R. I. & Pac. R. R 292 
 
 McCormick v. Monroe 249, 307 
 
 McCoy V. Empire Warehouse Co 439 
 
 McCracken v. Smathers 235 
 
 McCrory v. Chicago, M. & St. P. R. R 296, 306 
 
 McCullough V. Minn., St. P. & C. R. R 299 
 
 McDermott v. Chic. & Northwestern R. R 221 
 
 McDivitt V. Des Moines Street Railway 163 
 
 McDonald v. Chicago & Northwestern R. R 283 
 
 V. Lockport 368 
 
 V. Louisville & N. R. R 40 
 
 V. Malloiy 33 
 
 V. Mass. Gen. Hospital 66 
 
 V. Mich. Cent. R. R 276, 389, 399 
 
 V. Montgomery Street Railway 291 
 
 V. Snelling 178, 230, 234 
 
 V. Toledo, &c. Railway 208, 360, 365 
 
 V. Union Pacific R. R 126 
 
 McDonough v. Gilman 140 
 
 V. Lanpher 192 
 
 V. Virginia City 325 
 
 McDougal V. Ashland Co 400 
 
 V. Salem 329 
 
 McEachern v. Boston & Maine R. R 118, 122, 123, 125, 128 
 
 McEUigott V. Randolph 24 
 
 MeElroy v. Nashua &. Lowell B. R 4, 68, 190 
 
 McFee v. Vicksburg, S. & P. R. R 382 
 
 McGafBgan v. Boston 330 
 
Ixxvi INDEX TO CASES CITED. 
 
 MeGarragher v. Rogers 409 
 
 MoGatrick v. Wason 407 
 
 McGee v. Consol. St. Railway 302 
 
 V. Eglington Iron Co 438 
 
 McGhee v. Kennedy 246 
 
 McGilvray v. West End Street Railway 50 
 
 McGinnis v. Missouri Pacific R. R 283 
 
 McGinty v. Athol Reservoir Co 451, 454 
 
 McGlynn v. Brodie 407 
 
 McGorty v. So. N. B. Tel. Co 392 
 
 McGovem v. New York Central & H. R. R. R 152 
 
 McGowan ». La Plata Mining & Smelting Co 409 
 
 McGrail v. Kalamazoo 350 
 
 McGrath v. Bloomer 330 
 
 V. Hudson River R. R 256 
 
 V. Merwin 255 
 
 V. New York & N. E. R. R 412 
 
 McGrell v. Buffalo O. B. Co 189, 191, 270 
 
 McGrew v. Cato 2 
 
 V. Stone 230 
 
 McGuinness :;. Butler 123 
 
 MoGuire v. Spence 307 
 
 II. Vicksburg S. & Pac. R. R 163 
 
 Mclnemey v. Del. & H. Canal Co 44 
 
 Mclntire v. Roberts 364 
 
 Mclntyre v. Boston & Maine R. R 373 
 
 McKay v. Hand 500 
 
 McKee v. Chic, R. I. & Pac. R. R 276 
 
 McKellar v. Detroit 346 
 
 McKelvyw. Burl., C. R. &N. R. R 188 
 
 McKenna v. Kimball 76, 77 
 
 V. Missouri Pac. R. R 455 
 
 McKimble v. Boston & Maine R. R 194, 250 
 
 McKinley v. Chicago & Northwestern R. R 53 
 
 McKinney v. Chic, & N. W. R. R 300 
 
 McKinzie v. Philadelphia 411 
 
 McKnight v. Iowa & M. R. Const. Co 480 
 
 McKone v. Mich. Cent. R. R 195 
 
 McLamb v. Wilmington & W. R. R 217 
 
 McLaughlin v. Camden Iron Works 451 
 
 K. N. O. &c R. R 153 
 
 McLean v. Blue Point Gravel Mining Co 449 
 
 McMahon v. Hanning 444 
 
 V. KeUy 222 
 
 McManus v. Crickett 49 
 
 V. Weston 83 
 
 McMarshall v. Chicago, R. I. & Pac. R. R 114 
 
 McMillan v. Saratoga & W. R. R 379 
 
 McMullen v. Carnegie 387 
 
 McNally v. Cohoes 349, 354, 355 
 
INDEX TO CASES CITED. IxsvU 
 
 McNamara v. N. T. Cent. & H. K. R. R 303 
 
 McNeal v. Kttsbtug & W. R. R 297 
 
 McNee v. Colbum Trolley Track Co 285 
 
 McNown V. Wabash R. R 219, 249 
 
 McKolta V. Lockbridge 64 
 
 McNulty V. Cambridge 357 
 
 McParthand t. Thorns 141 
 
 McPhee v. Scully 502 
 
 McQueen v. Central Branch Union Pac. R 455 
 
 V. Mechanics' Institute 184 
 
 McRickard v. Flint 187 
 
 McVoy V. Oakes 109, 110 
 
 M'Donough v. McLellan 487 
 
 M'Manos v. Lancashire & Yorkshire Railway 200 
 
 Mead v. Chic, R. I. & Pac. R. R 67 
 
 Mears v. Wilmington ComAissiouers 89 
 
 Mechanicsburg v. Meredith 95 
 
 Mechesney v. Unity 310, 340 
 
 Meehan r. Morewood 50 
 
 Meesel t;. Lynn & Boston R. R 294 
 
 Megaree v. Philadelphia 333 
 
 Meibus v. Dodge 110, 119, 120, 224 
 
 Meier v. Morgan 55 
 
 Meizer v. Peninsular Car Co 406 
 
 Mellen v. Morrill 143 
 
 V. Wilson 454 
 
 Mellor V. Merchants' Mannf g Co 427, 429, 430, 498 
 
 Mellors v. Shaw 371, 374 
 
 Meloy V. Chicago & Northwestern R. R 215, 420 
 
 Membury v. Great Western Railway 431 
 
 Memphis & Charleston R. R. v. Askew 378 
 
 V. Graham 279 
 
 V. Hoeckner 64 
 
 V. Womack 113, 268 
 
 Memphis & L. R. R. v. StringfeUow 64 
 
 Menard v. Boston & Maine R. R 217 
 
 Menger v. Laur 163 
 
 Mercer v. Corbin 312 
 
 Merrill v. Eastern R. R 250, 285 
 
 V. Wilbraham 330 
 
 Merritt d. N. T., N. H. & H. R. R 261 
 
 Mersey Docks v. Gibbs 88 
 
 Meservey v. Lockett 312 
 
 Messenger v. Dennie 150 
 
 Messer c. Chicago, R. L & Pac. R. R 269 
 
 Metcalfe v. Cunard Steamship Co 100, 105 
 
 Metrop. Street Railway v. Powell 171 
 
 Metz V. Buffalo, Corry, &c. R. R 65 
 
 Mexican National R. R. v. Finch 451 
 
 Meyer v. -Eing 268 
 
Ixxviii INDEX TO CASES CITED. 
 
 Meyer v. New York 356 
 
 V. St. Louis, I. M. & So. E. K 192 
 
 V. Second Avenue E. R 47 
 
 Michael » Eoanoke Machine Works 433 
 
 Michigan City v. Boeckling 169, 366 
 
 Milan, The 168 
 
 Miles V. James ■ 295 
 
 Milford v: Holbrook 359, 370 
 
 Miller v. Canal Commissioners - . 104 
 
 V. Louisville, N. A. & C. E. E 169, 170 
 
 V. Ocean Steamship Co 295 
 
 V. Ohio & M. E. R 439, 475 
 
 V. Pennsylvania E. E 119, 269 
 
 V. St. Louis E. E 287 
 
 V. St. Paul S27, 334, 341, 351 
 
 V. Terre Haute, &c. E. E 303 
 
 V. Truesdale 296 
 
 V. Umberhower 18 
 
 Mills V. Brooklyn 86 
 
 V. Wilmington City Eailvray 228 
 
 Millsaps «. L., N. O. & T. R. E 455 
 
 Milward o. Midland Eailway 504 
 
 Milvraukee & Mississippi E. E. v. Einney 53 
 
 Milwaukee & St. P. E. E. v. Arms 147 
 
 Minerly v. Union Ferry Co 254 
 
 Minneapolis v. Lundin 393, 458 
 
 Minock v. Detroit, G. H. & M. E. E 214 
 
 Minor v. Sharon 134, 156 
 
 Minster v. Citizens' Eailway 169, 171, 182 
 
 Minty V. Union Pacific R. R 372, 412 
 
 Missouri Furnace Co. v. Abend 435 
 
 Missouri, Kansas, &e. E. E. v. Whitaker 451 
 
 Missouri Pacific E. E. v. Baier 251 
 
 V. Baxter 435 
 
 V. Bond 456 
 
 V. Callbreaith 400 
 
 V. Dwyer 456 
 
 V. Geist 303 
 
 V. Haley 480 
 
 V. Henry 378 
 
 V. Humes 483 
 
 »• Lee 305 
 
 V. Lehmberg 407 
 
 V. Lewis 381 
 
 «. Mackey' 483 
 
 V. McCally 244 
 
 V. McElyea 378 
 
 V. Pierce 217 
 
 V. Texas Pacific R. R 169 
 
 V. White 401 
 
INDEX TO CASES CITED. Ixxix 
 
 Mistier v. O'Grady 143 
 
 Mitchell V. Crasweller 50 
 
 V. Marker 191 
 
 V. Philadelphia, W. & B. R. R 118 
 
 V. Plattsburg 349 
 
 V. Railroad 208 
 
 V. Rockland 4 . 79 
 
 V. Worcester 357 
 
 Mittlestadt v. Morrison 311 
 
 M. Moxham, The 32 
 
 Mobile & Ohio R. R. v. Davis 65 
 
 V. Grcorge 495 
 
 V. Hopkins 202 
 
 V. Massey 467 
 
 V. People 251 
 
 V. Scales 115 
 
 V. Stroud 300 
 
 V. Watley 172 
 
 V. Wilson 243 
 
 Moebus V. Herrman 159, 222, 310 
 
 Mohney v. Cook . 254, 256 
 
 Moline v. McEinnie 54 
 
 Monaghan v. New York Central & H. R. R. . . . 273, 407, 437, 458 
 
 Monahan v. Clay & Goal Co 273 
 
 Money v. Lower Vein Coal Co 437 
 
 Monies v. Lynn 352, 355 
 
 Monk V. New Utrecht 268 
 
 Monmouth Mining Co. v. Erling 415 
 
 Moody V. Hamilton Mannf 'g Co. . 450 
 
 V. Mayor 139 
 
 Moon V. Ionia 349 
 
 Mooney v. Conn. Lumber Co 388 
 
 V. Luzerne 343 
 
 Moore v. Abbott 179 
 
 V. Boston & Albany R. R 247 
 
 V. Central R. R 241 
 
 V. Columbia R. R 196 
 
 V. Edison Dl. Co 287 
 
 V. Fitchbnrg R. R 46, 67 
 
 V. Huntington 308 
 
 V. Ionia 315 
 
 V. Jones 481 
 
 V. Keokuk & W. R. R 297 
 
 V. Mayor of New York 316 
 
 V. Minneapolis 349 
 
 V. Richmond 308 
 
 V. St. Louis Wire Mill Co 408 
 
 Moran v. Brown 378 
 
 V. Hollings 24 
 
 V. Palmer 337 
 
IXXX INDEX TO CASES CITED. 
 
 Morassey v. New York 349 
 
 Moreland v. Boston & Providence E. R 212 
 
 Morgan v. Hallowell 91) 335 
 
 V. London General Omnibus Co 490 
 
 V. Smith 459 
 
 V. Vale of Neath Railway 439 
 
 Morressey v. Providence & Worcester R. R 118 
 
 Morris v. Woodburn 358 
 
 Morrison v. Baird 487 
 
 V. Erie Railway 172, 291 
 
 Morrissey v. Eastern R. R 100, 118, 123, 128 
 
 u. Hughes 399 
 
 Morse v. Boston 346 
 
 V. Richmond 320, 338 
 
 Morton v. Detroit, B. C. & A. R. R 373, 376, 378, 379, 466 
 
 Mose V. Hastings, &c. Gas Co 282 
 
 Mosher v. St. Louis, Iron Mt. & So. R. R. . . . ■ 70 
 
 Moss V. Union Pacific R. R. . . ' .- 394 
 
 Motey V. Pickle Marble Co 155 
 
 Moulton V. Gage 419 
 
 V. Sanford 320, 338 
 
 Mower ». Leicester 79,313,314 
 
 Moyle V. Jenkins 488 
 
 Moynalian v. Allen 183 
 
 V. Wheeler 224 
 
 Moynihan v. Hills Co 373, 459, 460, 463, 466, 468 
 
 Muehlhausen v. St. Louis R. R 269 
 
 Muhr V. New York 309 
 
 Mulchahey v. Washburn Car- Wheel Co 23 
 
 Mulchey v. Methodist Religious Soc 40, 60, 476 
 
 Muldowney v. Illinois Central R. R 24 
 
 Mulhern 1-. Lehigh Valley Coal Co 470 
 
 Mulholland v. Brownrigg 104 
 
 MuUan v. Wisconsin Cent. R. R 192 
 
 Mullen V. Owosso 318 
 
 t). Springfield Street Railway./ 151 
 
 V. St. John ' 184, 362 
 
 Mullency v. Spenoe 271 
 
 Mulligan v. Curtis 270 
 
 Mulvey v. Rhode Island Locomotive Works 444, 461 
 
 Munger v. Sedalia 171 
 
 Munn V. Oriental Print Works 462 
 
 V. Reed 270, 271 
 
 Munroe v. Pacific Coast D. & R. Co 145 
 
 March v. Concord R. R 283, 285 
 
 Murdock v. N. Y. Express Co 222 
 
 Murphy v. American Rubber Co 411 
 
 V. Brooklyn 364 
 
 V. Caralli 439 
 
 V. Chicago 327 
 
INDEX TO CASES CITED. Ixxxi 
 
 Murphy v. Chicago, R. I. & Pao. R. R 259, 273 
 
 V. Deane 240, 242 
 
 V. Gloucester 338 
 
 V. Greeley 392 
 
 V. Indianapolis 308 
 
 o. LoweU 78,83,88 
 
 p. Orr 159, 310 
 
 V. New Tork Central & H. R. R. R 277 
 
 V. Phillips 379 
 
 V. Preston 224 
 
 r. Smith 462 
 
 V. Union Railway 192, 283, 293 
 
 V. Webster 260, 275 
 
 Murray v. McShane 363 
 
 V. Missouri Pacific R. R 186, 217, 244 
 
 V. Penn. R. R 290 
 
 V. Richmond & Danville R. R 269 
 
 V. St. Louis, C. & W. R. R 458 
 
 Murtagh p. N. T. Cent. & H. R. R. R 414 
 
 Muschamp v. Lancashire & Preston Railway 63 
 
 Mnsick v. Dold Packing Co 102, 472 
 
 Myers o. Hinds 312 
 
 V. Hudson Iron Co 381, 390, 401, 416, 418 
 
 V. Springfield 340 
 
 Myhan v. Louisiana Electric Light & Power Co. 390, 401, 403, 409, 421 
 
 Mynard v. Syracuse, B. & N. R. R 200 
 
 Mynning ». Detroit, L. & N. R. R 150,241,296 
 
 Nabau v. White River Lumber Co 389, 401, 421, 422 
 
 Nagel V. Missouri Pacific R. R 125 
 
 Nary v. New York, O. & W. R. R 459 
 
 Nash V. Nashua Iron & Steel Co 402 
 
 p. New York Central & H. R. R. R 219 
 
 V. Richmond & Danville R. R 296 
 
 Nashua Iron & Steel Co. v. Nashua & Worcester R. R. . . 162, 369 
 Nashville & Chattanooga R. R. v. Carroll 460 
 
 V. Eakin 35 
 
 Nason v. Boston 345, 347 
 
 V. Kansas City, «tc. R. R 252 
 
 Nassau, The 454 
 
 Nebraska City v. Campbell 96, 98 
 
 Needham v. Grand Trunk R. R 25, 29, 32, 35 
 
 NefE V. WeUesley 88, 153, 154, 258, 267 
 
 Neier ». Missouri Pacific R. R 244, 259, 296 
 
 NeUon v. Marinette & M. Paper Co 404, 405 
 
 Neilson ». Coal & Iron Co 406 
 
 Nelling v. Chic, St. P. & K. C. R. R 153, 259 
 
 V. Industrial Manuf g Co 406 
 
 Nelson v. Atlantic & Pacific R. R 292 
 
 V. Bondnrant 2 
 
 / 
 
Ixxxii INDEX TO CASES CITED. 
 
 Nelson v. Liverpool Brewing Co 134, 139 
 
 e. Vermont & Canada K. K 72, 73 
 
 Neptune, The 454 
 
 Netherlands Co. v. Hollander 15 
 
 Neveu v. Sears , , . . . 371 
 
 Nevin v. Pullman Palace Car Co, 46, 72 
 
 Nevitt u. Clarke 454 
 
 Newark Electric Light Co. ». Mason . 109,233 
 
 Newbury v. Conn, & FassQmpsic K. R, 368 
 
 V. Getchell Co 465 
 
 Newcomb v. Boston Protective Department 63, 254, 255 
 
 Newhard ». Penn. K. R 211 
 
 New Jersey Steam Nav. Co. v. Merchant's Bank 198 
 
 New Jersey Traction Co. v, Gardner 189, 293 
 
 Newman v. Phillipsburg Horse Car Co. .......... 175 
 
 New Orleans v. Abbagnato 77 
 
 New Orleans, M. & C. R. R. v. Banning 57, 132 
 
 New Orleans & N. E. R. R. v. Thomas 197 
 
 New Orleans, St. L., &c. R. R. v. Burke ........ 52, 192 
 
 New Pittsburg Coal Co. v. Peterson , 461 
 
 Newry v. Brackenridge Lumber Co 180 
 
 Newton o. EJlis 365 
 
 V. Worcester 346 
 
 New World, The, v. King 137, 147, 201 
 
 New York v. Dimmick 368 
 
 V. Furze 87 
 
 V. Sheffield 325, 349 
 
 New York, C. & St. L. R. R. v. Blumenthal 184, 197 
 
 New York Central R. R. v. Lookwood 198, 199 
 
 New York Life Ins. Co. v. Savage 264 
 
 New York, L. E. & W. R. R. v. BaU 284, 286 
 
 V. Steinbrunner . . ; 169 
 
 New York, N. H. & H. R. R. v. Blessing 296 
 
 New York, P. & N. R. R. v. Colburn 274 
 
 V. Cooper 171 
 
 ». Kellam 215 
 
 New York, &c. R. R. v. N. J. Electric Co 303 
 
 Niantic Coal & Mining Co. v. Leonard 373, 443, 451 
 
 Nichols V, Brunswick 339 
 
 V. Laurens 310 
 
 V. Louisville & Nashville R. R ' 112 
 
 V. Middlesex R. R 294 
 
 V. Minneapolis 356 
 
 V. Washington, O. & W. R. R 106 
 
 Nicholson v. Erie R. R 128 
 
 V. Lancashire & Yorkshire Railway 108 
 
 Nieto V. Clark 52 
 
 Niles Commissioners v. Martin 79 
 
 Nixon V. Chic, R. I. & Pac. R. R. 296 
 
 V. Selby Smelting Co 450 
 
INDEX TO CASES CITED. Ixxxiii 
 
 I7obIe V. Richmond 351 
 
 V. St. Joseph, Sec. K. R 163, 207, 209, 294 
 
 Nolan V. BrooklyB City R. R 293 
 
 V. Milwaukee, L. S. & W. R. R 297 
 
 B. New York, N. H. & H. R. R 118, 127, 148 
 
 Nolton V. Western R. R 3, 148, 196, 197 
 
 Neman v. Franklin County 310 
 
 Norfolk & Petersburg R. R. v. Ormeby 152, 175, 176 
 
 Norfolk & Western R. R. v. Ampey 433 
 
 !). Burge 218,304 
 
 :;. Dunnaway 112 
 
 V. Hoover 162 
 
 V. Jackson 487 
 
 17. Nuckol 399 
 
 V. Shott , 198 
 
 V. Thomas 474 
 
 V. Wilson 129 
 
 Norling v. Allee 359 
 
 Norris v. Circuit Judge 22 
 
 V. Haverhill 325, 330 
 
 V. Litchfield 110, 148, 164, 338 
 
 Norristown v. M(^er 343 
 
 North Bait. Pass. Railway r. Amreich 159 
 
 V. KaskeU 182 
 
 North Birmingham Street R. R. :;. Calderwood 244 
 
 North Chicago Railway v. Brodie 29 
 
 ». Cook 214 
 
 V. Gastka 48 
 
 V. Martin 185 
 
 V. Williams 285, 293 
 
 V. Wiswell 293 
 
 North Pennsylvania R. R. v. Heileman 305 
 
 V. Mahoney 175 
 
 Northern Central R. R. v. Medairy 219 
 
 V. Price 175, 176 
 
 V. State 51, 53, 159 
 
 Northern Pacific R. R. v. Austin 148 
 
 V. Babcock 37 
 
 V. Beaton 472 
 
 B. Behling 479 
 
 V. Charless 472 
 
 r. Croft 268 
 
 p. Egeland 222 
 
 V. Everett 149 
 
 p. Freeman 246 
 
 V. Hambley 455, 47-3 
 
 V. Herbert 377, 396, 442, 443, 462 
 
 V. Herchiskel 187 
 
 V. Hogan 481 
 
 p. Mares 395,396,397 
 
Ixxxiv INDEX TO CASES CITED. 
 
 Northern Pacific R. B. v. Mase ^^^' til 
 
 Bnen 
 
 V. Panson 
 
 V. Peterson ' 
 
 «. Porier Ill 
 
 Northwestern Fuel Co. v. Danielson <>«» 
 
 Northwestern Union Packet Co. v. McCue 43 
 
 Norton V. New Bedford °* 
 
 I!. North Carolina R. R J* 
 
 ^. Sewall 232 
 
 V. St. Louis ^°' 
 
 V. Wiswall 1*1 
 
 Norwich V. Breed 116, 339, 363 
 
 Norwood V Raleigh 248 
 
 Nosier v. Chicago, B. & Q. R. R 187 
 
 Novock V. Michigan Central R. R 277 
 
 Nowell V. Wright 78 
 
 Noy V. Troy ^^l 
 
 Noyes o. Boscawen l^^i ^H 
 
 V. Smith 400 
 
 V. Ward 450 
 
 Nugent V. Atlas Steamship Co 449 
 
 V. Boston, C. & M. R. R 150 
 
 Nutter V. Boston & Maine R. R 186 
 
 Nuzum V. Pittsburg, C. & St. L. R. R 113, 219 
 
 Oakes v. Mase 455, 475 
 
 Ober V. Railroad Co 293 
 
 O'Brien v. American Dredging Co 451 
 
 V. Boston & Worcester R. R 285 
 
 V. Capwell 134 
 
 V. Cunard Steamship Co 67 
 
 V. McGlinchy 160 
 
 V. Rideout 502 
 
 V. Tatum 244 
 
 O'Callahan u. Bode 102 
 
 Ooh V. Miss., K. & P. R. R 185 
 
 O'Conner v. Adams 387, 404 
 
 O'Connor v. Central R. R 381 
 
 V. Missouri Pacific R. R 210 
 
 V. New York 845, 352 
 
 V. Rich 467 
 
 V. Roberts 449 
 
 Odell V. New York Central & H. R. R. E 273, 406 
 
 Odom V. St. Louis S. W. R. R 292 
 
 O'Donnell v. Allegheny R. R 455 
 
 V. Allegheny Valley R. R 394, 455 
 
 V. Baum 378, 402 
 
 O'Driscoll V. Faxon 371 
 
 Oehme v. Cook . .' 402 
 
INDEX TO CASES CITED. Ixxxv 
 
 Ogden t>. Rummens .;.. 407 
 
 Ogley V. Miles 404 
 
 Ohio & Mississippi K. B. v. Davis 64 
 
 V. Dunbar 72 
 
 0. Hill 260 
 
 V. Maisch 300 
 
 V. Stein 450 
 
 V. TindaU 29 
 
 Ohio Southern R. R. v. Morey 62 
 
 O'Keefe v. Chicago, R. I. & Fac R. R 165 
 
 Old Colony R. R. v. Slavens 39 
 
 Oldfleld V. New York & Harlem R. R 243 
 
 Oliver v. Worcester 87, 91, 102 
 
 Olsen V. Chippewa Falls 158, 323 
 
 V. Clyde , 453 
 
 Omaha v. Jensen 366 
 
 Omaha, N. & B. H. R. R. v. O'Donnell 186 
 
 Omaha & R. V. R. R. ». Brady 219 
 
 V. ChoUette 290 
 
 V. Cook 113 
 
 V. Krayenbuhl 455 
 
 V. Morgan 71 
 
 V. Rybum 107 
 
 V. Talbot 303 
 
 Omaha Street Railway v. Cr^g 147 
 
 o. Martin 163 
 
 O'Malley v. St. Paul, M. & M. R. R 125 
 
 O'Mara v. Hudson River R. R 151 
 
 Omslaer v. Pitts. Traction Co. 302 
 
 O'Neal V. O'Connell 180 
 
 O'Neill V. Dry Dock, &c. Co 302 
 
 c. Leary 502 
 
 D. Lynn & Boston R. R 284 
 
 V. West Branch 336 
 
 i;. Young 476 
 
 O'Reagan v. Cunard Steamship Co 200 
 
 Oregon, The 453 
 
 Oregon Short Line R. R. v. Frost 457 
 
 V. Tracy 383 
 
 O'Reilly v. Sing Sing 308 
 
 Orleans v. Perry 165 
 
 Ormond v. Holland 888, 393 
 
 O'Rourke t;. Monroe 340 
 
 Orr V. Bank of the United States 62 
 
 Osage City v. Larklna 331 
 
 Osborne v. Detroit 84, 307 
 
 V. Gillett 2, 19 
 
 V. Jackson 465, 503 
 
 V. McMasters 44 
 
 V. Morgan 476, 477 
 
IxxXTi INDEX TO CASES CITED. 
 
 O'Shaughnessey v. Suffolk Brewing Cq 328 
 
 Ostrander v. Lansing 88 
 
 O'SuUivan v. Norwood 142 
 
 O'Toole V. Pitts. & L. E. E. K 40 
 
 Otten V. Cohen 166 
 
 Overholt v. Vieth? 103 
 
 Overton v. Freeman 54 
 
 Ovington v. Lowell & Suburban Railway 158 
 
 Owen V. Fort Dodge 307, 356 
 
 Owens V. Pennsylvania E- K 114, 305 
 
 Owings V. Jones 141 
 
 Oxford V. Leatb 142 
 
 Pack v- Mayor of New York 21, 56 
 
 Paddock v. Atchison, Top. & S. F. R. R 192 
 
 Paine v. Eastern R. R 422 
 
 Painter v. Pittsburg 56, 59 
 
 Palestine v. Hassell 354 
 
 Paley v. Garnett 499 
 
 Palmer v. Andover 306, 307, 320j 322 
 
 V. Portsmouth 410 
 
 Pantzear v. Tilly Foster Iron Mining Co 444, 461 
 
 Pardington v. South Wales Railway 200 
 
 Parish V. Eden 173, 354 
 
 Parke County v. Wagner 79 
 
 Parker v. Cohoes 160 
 
 V. Macon 360 
 
 V. Penn. Co 144 
 
 V. Portland Publishing Co 128 
 
 V. S. C. Si Geo. R. R 418 
 
 Parmelee v. Farrow 165 
 
 Parnaby ». Lancaster Canal 88 
 
 Parrish v. Pensaoola, &q. R. R 456 
 
 Parrott v. Wells 247 
 
 Parry v. Smith ,476 
 
 Parshall v. Minneapolis & St. L. R. R. 167 
 
 Parsons v. Winchell 67 
 
 Passamaneck v. Louisville R. R » 127 
 
 Paterson v. Wallace 371, 415, 424 
 
 Patnode v. Warren Cotton Mills 373 
 
 Patterson v. Hemenway 150 
 
 V. Pittsburg & C. R. R 382, 435 
 
 Patton V. Southern R. R 149, 383 
 
 Paulitsoh V. New York Centrg,! & H. R. R, R 214 
 
 Paulmier v. Erie R. R 401, 444 
 
 Pawling V. Haskins 439 
 
 Payne v. Humeston 173 
 
 Peachey v. Rowland 54 
 
 Pearce v. Humphreys 305 
 
 Pearsall v. Post 328 
 
INDEX TO CASES CITED. Ixxxvii 
 
 Pearson v. Skelton 369 
 
 Peaslee v. Fitehburg R. R 394 
 
 Peck V. Ellsworth 328 
 
 «. Neill 167 
 
 V. North Staffordshire Railway 200 
 
 Pedersoa v. Rushford 406 
 
 Pedrick v. Bailey . . ; 343 
 
 Peeples v. Brunswick & A. R. R 52 
 
 Peetz V. St. Charles St. R. R 309 
 
 Peirce v. Van Dusen 64, 484 
 
 V. Walters 113, 114 
 
 Pekin v. McMahon 126, 151 
 
 V. Newell 94, 98 
 
 Pembroke v. Hannibal & St. Jo. R. R.. . . . , 196 
 
 Pence v. Chicago, R. I. & Pac. R. R 210 
 
 Fender v. Raggs . . I 55 
 
 Pendleton v. Kinsley 51, 75 
 
 Peniston v. Chicago, St. L. & N. 0. R. R 194 
 
 Pennsylvania Co. v. EUett 70 
 
 V. La Rue 413 
 
 V. Marion . 290 
 
 V. McCaffrey 257, 289 
 
 V. Roy 45, 72, 190 
 
 Pennsylvania R. R. v. Aspell 291 
 
 V. Beale 305 
 
 V. BeU 263 
 
 V. Butler 198 
 
 V. Ellett 47 
 
 V. Goodenongh 177 
 
 ». Henderson 29, 198, 202 
 
 r. Horst 149,304 
 
 V. James 175 
 
 V. Jones 64, 71 
 
 V. Kelly 151, 175 
 
 V. Langdon 257, 283 
 
 I'. Lewis 122 
 
 V. McMullen 118 
 
 t;. Middleton 180 
 
 V. Righter 166 
 
 V. Russ 214 
 
 V. Wilson 297 
 
 V. Woodworth 198 
 
 V. Vandiver 46 
 
 V. Zebe 283 
 
 V. Zink 421 
 
 Pennsylvania Telegraph Co. v. Yamatt 243, 257 
 
 Peoples' Bank v. Morgolofski 191 
 
 Peoria v. Simpson 139 
 
 Peoria, D. & E. R. R. v. Rice 257 
 
 Percival r. Hiekey 3 
 
IxXXViii INDEX TO CASES CITED. 
 
 Perez v. N. O. City, &c. R. R 170 
 
 Perkins v. Buffalo, R. & P. R. R 217 
 
 V. Fayette 320, 338 
 
 V. New York Central R. B 200 
 
 Perry v. Lansing 444 
 
 V. Marshall 443 
 
 V. Worcester 85 
 
 Pershing v. Chicago, B. & Q. R. R 205 
 
 Persian Monarch, The 389, 451 
 
 Peru V. French 94, 350 
 
 Petaja v. Aurora Mining Co 393 
 
 Peters v. Rylands 68 
 
 Peterson v. Chicago & W. M. R. R 157, 323 
 
 V. Sherry Lumber Co 407 
 
 V. Smart 133 
 
 V. Whitebreast, C. 8e M. Co 449 
 
 Petrie v. Columbia & G. R. R. 219, 251 
 
 Pettengill v. Yonkers 330, 353 
 
 Pettingell v. Chelsea 82 
 
 Phelps V. Mankato 324 
 
 Philadelphia v. Gavignan 88 
 
 V. Smith 308, 330, 349 
 
 Philadelphia Co. v. Central Traction Co. . . <- 369 
 
 Philadelphia Passenger R. R. v. Hassard 151 
 
 Philadelphia Traction Co. v. Lightcap 217 
 
 V. Orbann 221 
 
 Philadelphia & Reading R. R. v. Anderson .75, 181 
 
 V.Derby .' 49,51,53,196,198,201 
 
 V. Huber 380, 416 
 
 V. Hummell 100, 122, 130, 249 
 
 6. Long 271 
 
 V. Spearen 164 
 
 Philadelphia, W. & B. R. R. v. Burkhardt 207 
 
 V. Fronk 219 
 
 V. Havre de Graee Tow Boat Co 256 
 
 V. Hogeland 169, 210, 218 
 
 V. State 459 
 
 Phillips V. Chicago, M. & St. P. R. R. . . . . , 460 
 
 V. Detroit, G. H. & M. R. R 266 
 
 V. De Wald 158, 222 
 
 u. HaU 40 
 
 V. Rensselaer & Saratoga R. R 292 
 
 V. Veazie 327 
 
 Picard v. Collins 139 
 
 V. Smith 101, 326 
 
 Pickett V. Wilmington & W. R. E . 114, 163 
 
 Pierce v. Atlanta Cotton Mills 251 
 
 0. Whitcomb 264 
 
 Piggott V. Hanchett 400 
 
 Pigott V. Lilly 257 
 
INDEX TO CASES CITED. Ixxxix 
 
 Pike V. Chicago & Alton R. E 456 
 
 w. Grand Trunk liailway I59 179 
 
 V. Housinger '235 
 
 Pilling B. Karragansett Machine Co 415 
 
 Pillsbury v. Moore 240 
 
 Pinney v. Mo., K. & T. R. R ! . . ! 218 
 
 Piper V. Chicago, M. & St. P. R. R 297 
 
 V. Milwaukee & St. P. R. R 187 
 
 Pippin V. Shepard 3 
 
 Pittsburg V. Grier 94 
 
 Pittsburg & C. R. R. v. Andrews 287 
 
 V. McClurg 283, 287 
 
 V. Pillow 52 
 
 V. Sentmeyer 4^3 
 
 Pittsburg & W. R. R. v. ftlcCombs .'!.'!. 412 
 
 Pittsburg, A. & M. P. R. R. v. Caldwell ! . 122 
 
 V. Donahue 53 
 
 V. Pearson jyg 
 
 Pittsburg, C. C. & St. L. R. R. v. Burton . ! 177 
 
 V. Henderson 44g 
 
 V. Russ 41 
 
 V. Shields 373 
 
 V. Sullivan gg 
 
 Pittsburg, Fort Wayne & C. R. R. v. Bingham 130, 194 
 
 V. Devinney 474 
 
 V. Hinds 52 
 
 V. Ruby . 396 
 
 V. Viuing 172 
 
 Pittsburg Traction Co. v. Walker 464 
 
 Planz V. Boston & Albany R. R 115 
 
 Platz V. McEean Township 354 
 
 Plnckwell v. Wilson 267 
 
 Plumley v. Birge 226, 270 
 
 Plummer v. Dill 100 
 
 c. N. Y. & H. R. R 296 
 
 V. Webb 21 
 
 Plymouth v. Milner 308 
 
 Pollard V. Maine Central R. R 164 
 
 V. Woburu 367 
 
 Pomfrey v. Saratoga Springs 93, 354 
 
 Pooley V. Osborne 10 
 
 Popplewell V. Pierce 224, 227 
 
 Porter «;. Hannibal & St. Jo. R. R 382 
 
 Potter V. Chicago & Northwestern R. R 166 
 
 V. Chicago, R. I. & Pac. R. R 167, 480 
 
 V. Faulkner 427 
 
 V. Flint & Fere Marquette R. R 298 
 
 V. Moran 311 
 
 Fotts V. Plunket 388, 407 
 
 V. Port Carlisle Dock & R. R 396 
 
XC INDEX TO CASES CITED. 
 
 Poacher v. N. Y. Central R. E 200 
 
 Powell V. Deveney 47 
 
 V. Mo. Pac. R. R 114 
 
 V. New York Central & H. R. R. R 298 
 
 Powers V. Harlow 101, 132, 269 
 
 V. New York, L. E. & W. R. R 273, 407, 423 
 
 Powhatan Steamboat Co. v. Appomattox R. R 256 
 
 Pownal V. Ferrand 369 
 
 Pozzi V. Shipton 11 
 
 Praeger v. Bristol & E. R. R 213 
 
 Prather v. Richmond & Danville R. R 278, 280 
 
 Pratt B. Amherst 341 
 
 V. Chic., R. I. & Pac. R. R 212, 298 
 
 V. Prouty 407 
 
 V. Weymouth 318 
 
 Pray v. Mayor of Jersey City 91 
 
 V. Omaha Street Railway 288 
 
 Prendible v. Conn. River Manuf'g Co 500, 502 
 
 Prentiss v. Boston •. 326, 366 
 
 V. Kent Furniture Manuf'g Co . 405, 434 
 
 Presbyterian Congregation v. Smith , . 55 
 
 Pressey v. Worth 226 
 
 Preston v. Knight 43 
 
 Price V. Pennsylvania R. R. . , . . . . 198, 214 
 
 V. Phil., W. & B. R. R 268 
 
 V. Richmond & D. R. R 25, 371 
 
 Priestley v. Fowler 388, 407, 424, 439, 441, 492 
 
 Pi-indle v. Fletcher 334 
 
 Probert v. Phipps 151, 404 
 
 Promer v. Milwaukee, &c. R. E 420 
 
 Proprietors of Locks & Canals v. Lowell 85 
 
 Providence ». Clapp 95, 346 
 
 Puffer V. Orange 339 
 
 PuUiam v. 111. Cent. R. R I44 
 
 Pulling V. Great Eastern Railway 20 
 
 Pullman Palace Car Co. v. Harkins 401 
 
 V. Laack 402, 441 
 
 Pullotro V. Delaware, L. & W. R. R 274, 380 
 
 Purcell V. English 136 
 
 Purnell v. Great Western Railway 460 
 
 V. Raleigh & G. R. R 213 
 
 Pnrtell i>. Jordan " 261 
 
 Putman ». New York Central & H. R. R. R 158, 323 
 
 Putnam v. Broadway, &c. R. R 62, 192 
 
 Pyle V. Clark 296 
 
 Pym V. Great Northern R. R 29 
 
 Q0ARMAN V. Burnett .54 168 
 
 (Quebec Steamship Co. v. Merchant 450 
 
 Queen v. Spilling _ 236 
 
INDEX TO CASES CITED. XCl 
 
 Quick V. Indianapolis & I. R. R 278 
 
 Quimby v. Boston & Maine R. R 202 
 
 Quincy v. Boston St. Railway 173 
 
 Quiney Mining Co. v. Kitts 466, 470 
 
 Quinlaa v. TJtica 354 
 
 Quinn v. Moore 18, 27 
 
 V. Perham 136 
 
 Quirk V. Holt 110 
 
 Race v. Union Feny Co 105, 190 
 
 Radley ». London & Northwestern Railway 239 
 
 Raie v. Sommerbeck 232 
 
 Ragland u. St. L., I. M. & S. R. R 159 
 
 Ragsdale v. Northern Pacific R. R 474 
 
 Railroad (or Railway) v. Acres 46 
 
 V. Acuff 251 
 
 V. Allen 495 
 
 V. Ampey 433 
 
 «. Anderson 75,124,181,211,215,218,297,383 
 
 V. Andrews 287 
 
 V. Archibald 384, 418 
 
 V. Arms 147 
 
 V. Armstrong 165 
 
 V. Arnol 213 
 
 V. Ashline 254 
 
 V. Askew 378 
 
 o. Aspell 291 
 
 V. Austin 148 
 
 V. Aven 158 
 
 V. Ayres 165 
 
 " V. Babcock 37 
 
 V. Baddeley 298 
 
 V. Baier 251 
 
 V. BaU 284, 286 
 
 V. Bangs . 291, 292 
 
 V. Barber 407, 414, 425 
 
 If. Barfleld 300 
 
 V. Barnhart 167 
 
 V. Barron 72 
 
 V. Bates 384 
 
 V. Baugh 475 
 
 V. Baxter 435 
 
 V. Bayfield 432, 434 
 
 V. Beale 305 
 
 V. Beasley 303, 407 
 
 V. Beaton 472 
 
 V. Beatty 238 
 
 V. Behling 479 
 
 V. Bell 126 
 
 V. Berkeley 461 
 
XCU INDEX TO CASES CITED. 
 
 Railroad (or Railway) v. Bell 263 
 
 V. Billeter 457 
 
 V. Bingham 130, 194 
 
 V. Bingle 436 
 
 V. Bishop 200, 506 
 
 V. Blake 68 
 
 V. Blank 474 
 
 V. Blanton 181 
 
 V. Blessing 296 
 
 V. Blocher 53 
 
 V. Blohn 452, 458 
 
 V. Blumenthal 184 
 
 V. Bodemer 110, 163 
 
 V. Bond 456 
 
 V. Boteler 116 
 
 V. Boudrou 293 
 
 V. Bowen 176 
 
 V. Box 297 
 
 V. Boyd .' 288 
 
 V. Bradford 239 
 
 V. Brady 219 
 
 i;. Braid 206 
 
 V. Brannagan 241 
 
 V. Breitling 187 
 
 V. Brice 385 
 
 V. Bridges 278 
 
 "• Brin 187, 207, 217 
 
 V. Brooks 284 
 
 V. Brow 461 
 
 V. Brown 145, 200, 451, 472 
 
 V. Bryant 244, 427 
 
 V- Buck 384, 414 
 
 V. Buckalew 184 
 
 "• B«rge 218, 804 
 
 »■ Birke 52, 192, 252, 414 
 
 V. Burkhardt 207 
 
 V. Burton I77, 502 
 
 I). Butler 198, 241 
 
 V. Calder 244 
 
 V. Caldwell ^ . . . . 122 
 
 V. Callaghan 399, 472 
 
 V. Callbreath 400 
 
 "• Camp 207, 481 
 
 V. Campbell ; . . . 412 
 
 V. Canman 206 
 
 V. Carpenter 262, 283 
 
 V. Carroll 460, 487 
 
 V. Carson , _ 209 
 
 "• Case 148, i69 
 
 V. Cassen igg 
 
INDEX TO CASES CITED. XCIU 
 
 Railroad (or Railway) v. Caulfield 219 
 
 V. Caveness 300 
 
 V. Chambers 292 
 
 V. Chambliss 180 
 
 V. Chapman ^ 146 
 
 V. Charless 472 
 
 ». Chisholm 243,246 
 
 V. ChoUette 290 
 
 V. Christian ISl 
 
 V. Clark 373, 443 
 
 V. Clay 291 
 
 V. Cleaves 215 
 
 V. Clowes 288 
 
 V. Colboum .... J 274 
 
 V. Coleman 215, 219 
 
 V. Collins 474 
 
 V. Colvin 298, 412 
 
 V. Conder 53 
 
 V. Coniff 213 
 
 V. Conoyer 303 
 
 V. Conroy 377 
 
 V. Cook 113, 214 
 
 p. Cooper • 171 
 
 V. Copas 244 
 
 17. Cotton 185 
 
 V. Conlton 372 
 
 V. Cox 37, 278 
 
 ». Craig 147,186,278 
 
 r. Crawford 451 
 
 V. Creek 169 
 
 V. Crocker 244, 436 
 
 V. Croft 268 
 
 V. Cmdup 3d 
 
 V. Cnmmings 443 
 
 V. Cunningham 126 
 
 17. Curran 202 
 
 17. Daniels 386 
 
 V. Davis 64, 65, 165, 170, 303 
 
 V. Dawkins 53 
 
 V. Dean 298 
 
 P.Derby 49,51,53,196,198,201 
 
 V. Devinney 474 
 
 r. Diokerson 293 
 
 V. Dickson 407 
 
 17. Dies . 297 
 
 V. Dignan 258, 298 
 
 V. Dillon 217 
 
 V. Dobbs 177 
 
 p. Donahue 53 
 
 V. Donovan 187 
 
XCiv INDEX TO CASES CITED. 
 
 Railroad (or Railway) v. Doyle 393, 461 
 
 V. DrisooU 478 
 
 V. Dudley 278 
 
 V. Dunbar 72 
 
 V. Dunden 126, 152, 269 
 
 V. Dunham 200 
 
 V. Dunleavey 215 
 
 V. Dunn • 378 
 
 B. Dunnaway 112 
 
 V. Durkin 393 
 
 V. Dwyer 456 
 
 V. Dye 280 
 
 V. Dyer 297 
 
 V. Eakin 35 
 
 V. Eastern Counties Railway 73 
 
 V. Egeland 222 
 
 V. Eininger • • 269 
 
 V. Elliott 155 
 
 V. Epperson 50 
 
 0. Erickson 458 
 
 V. Evans 481 
 
 V. Everett 149 
 
 V. Faitz 215 
 
 V. Farmer 456 
 
 V. Farrell 220 
 
 V. Feehan 165 
 
 V. Fietsam 165 
 
 V. Finch 451 
 
 V. Finley 427 
 
 V. Fisher 287 
 
 V. Pitzpatriok 469 
 
 V. Fitzsimmons 126 
 
 V. Fleming 165 
 
 «. Flexman 52,192 
 
 V. Fort 397, 400, 401, 418, 429 
 
 V. Foster 251 
 
 «. Fox 438 
 
 V. Freeman 246 
 
 V. French 251 
 
 V. Fronk 219 
 
 V. Gallagher 293 
 
 V. Garbett 166 
 
 V. Garcia 153, 258, 268 
 
 V. Garthright 204 
 
 V. Gastineau 119, 144 
 
 V. Gastka 48 
 
 V. Geist 303 
 
 V. Gentry 149, 246 
 
 V. George . 159, 495 
 
 V. Gillison 426, 443 
 
INDEX TO CASES CITED. XCV 
 
 Railroad (or Railway) v. Gladmon 243, 269, 418 
 
 V. Gleasoa 165 
 
 V. Glover 293 
 
 V. Godfrey 163 
 
 tj. Goldwire 478 
 
 V. Gioodenough 177 
 
 V. Gower 238 
 
 u, Graham . ' 279, 473 
 
 i;. Greenlee 284, 299 
 
 V. Greenwood 40 
 
 V. Hackett 49 
 
 V. Hague 251^ 
 
 V. Haley 480 
 
 V. Hambley 455, 475 
 
 V. Handy "... 72 
 
 V. Hanks 147 
 
 V. Hanlon 175 
 
 V. Hanning 57 
 
 V. Hansen 304 
 
 V. Harding 899, 451 
 
 V. Hardy 461 
 
 V. Harney 394 
 
 V. Harper 190, 205 
 
 V. Harrell 171, 185 
 
 V. Hassard 151 
 
 V. Havre de Grace Towboat Co 256 
 
 V. Hawthorne 414, 451 
 
 V. Hedge 184, 290 
 
 V. HefEeran 296 
 
 V. Heileman c 305 
 
 V. Henderson 29, 198, 202, 446 
 
 V. Henigh 126 
 
 V. Henry 217, 378 
 
 p. Henson 26 
 
 V. Herbert 377, 396, 442, 443, 462 
 
 V. Herchisel 187 
 
 V. Hester 278 
 
 !>. Hiokey 39,150,167 
 
 P.Hill 260 
 
 V. Hinds / 51 
 
 V. Hirsch 213 
 
 V. Hodges 207 
 
 P. Hodgson 289 
 
 p. Hoeckner 64 
 
 V. Hogan 481 
 
 V. Hogeland 169, 218 
 
 p. Hohn 415 
 
 V. Holbrook 64 
 
 V. Hon^ • 177 
 
 V. Hoover 162 
 
XCvi INDKX TO CASES CITED. 
 
 Railroad (or Railway) v. Hopkins 202 
 
 V. Horst 149, 304 
 
 V. House 443 
 
 V. Houston 296 
 
 V. Howard 66, 164, 296 
 
 V. Hnber 380, 416 
 
 «. Huffman 65, 172 
 
 V. Humes 483 
 
 V. Hummell 100, 122, 130, 249 
 
 V. Huntley 215 
 
 V. Hurt 119 
 
 V. Hutchinson 238 
 
 V. Ivey 478 
 
 V. Jackson 393, 437 
 
 V. James 175, 372 
 
 V. Jewell 394 
 
 V. Johnson 64, 65, 268, 292, 474 
 
 V. Jones 64, 71, 181, 405, 480 
 
 V. Joyner 113 
 
 V. Kaskell 182 
 
 v^ Eeary 474 
 
 V. Eeefe 475 
 
 V. Keegan 451 
 
 V. Kehoe 163, 296 
 
 V. Kellam 215 
 
 V. Kelly 151, 175, 215, 414, 457, 460 
 
 V. Kenley 468 
 
 V. Kent 402 
 
 V. Kerr 381 
 
 V. Ketcham 166 
 
 V. Kier 280 
 
 V. Kinney 53 
 
 V. Kitchens 278 
 
 V. Knott 257 
 
 V. Krayenbnhl 455 
 
 V. Kuehn 298, 304 
 
 V. Kutao 170, 171 
 
 V. Lackey 144 
 
 V. Lacy 35 
 
 V. Laird 198 
 
 V. Landauer 149, 290 
 
 V. Lane 217 
 
 V. Lang 277 
 
 V. Langdon 257, 283 
 
 f. Lanier -. , . 478 
 
 V. Larson 149 
 
 V. Lavalley 481 
 
 V. Lee 288 
 
 V. Le Gierse 290 
 
 V. Lehmberg 407 
 
INDEX TO CASES CITED. XCVU 
 
 Eailroad (or Railway) v. Leslie 290, 292 
 
 u. Letcher 292 
 
 V. LeYette 282 
 
 V. Lewis 122, 215, 381 
 
 V. Lindley 286, 427 
 
 V. linney 384 
 
 V. Lockwood 198, 199 
 
 o. Logue 172 
 
 v. Long 144, 150, 271 
 
 V. Love 407 
 
 V. Lowe 399 
 
 V. Luccado 280 
 
 V. Mackey 384, 416, 483 
 
 V. Maddrey , 267 
 
 V. Mahony 175 
 
 17. Maisch 300 
 
 V. Mansberger 384, 399 
 
 V. Mares 395, 396, 397 
 
 V. Markee 144, 147 
 
 V. Markens 171 
 
 V. Martin 54, 163, 185, 297 
 
 V. Mase 252, 475 
 
 V. Mason 165 
 
 V. Massey 467 
 
 V. Mangans 291 
 
 r. Maoiy 185 
 
 V. McCally 244 
 
 V. McCarthy 72, 200 
 
 V. McCarty 420 
 
 u. McClurg 211,283,287 
 
 17. McCombs 412 
 
 17. McDade 387 
 
 V. McDaniels 238, 394, 395 
 
 V. McDonald 175, 187, 217 
 
 V. McDnfEey 37 
 
 V. McElyea 378 
 
 V. McGiowii 202 
 
 V. Mcintosh 171 
 
 V. McLallen 470 
 
 V. McLaughlin 122, 467, 482 
 
 t7. McMahan 279 
 
 V. McMnllen 118, 241, 371, 377, 400, 456, 462, 469 
 
 V. McNamara 382 
 
 17. McWhirter 126 
 
 t7. Medairy 219 
 
 V. Mertes 163, 211 
 
 17. Meyers ' . . . 384, 387 
 
 t7. Middleton 180, 451 
 
 V. MiUer 301, 318, 478 
 
 t>. Milliken 394 
 
 9 
 
?<!V1U INDEX TO CAS?8 CITEl?^ 
 
 Bailroad (or Railway) v. Minnick 414, 420 
 
 V. Mitchell 185, 291, 399, 478 
 
 V. Monday 113 
 
 V. Moore 384 
 
 V. Moranda 449, 451,, 453 
 
 e. Morey 101, 105 
 
 V. Morgan 217 
 
 V. Morkenstein 114 
 
 V. Morris 292 
 
 V. Moseley 399 
 
 V. Mulligan 474 
 
 V. Munday '. 201 
 
 V, Murphy 277, 449, 450 
 
 V. Murray 151 
 
 V. Myers 283, 286, 287 
 
 V. Needham 475 
 
 V. Neer Ig5 
 
 V. Nelms 182, 378 
 
 V. Norment 373, 381^ 443 
 
 V. Nuckol 399 
 
 ». O'Brien 244,. 418, 
 
 V. O'Donnell jgg 
 
 V. Ormsby 152, 175, 175 
 
 V. Ouska 149 
 
 V. Pannill 278 
 
 V. Fanson I95 
 
 V. Parker 278 
 
 V. Parsley 185 
 
 V. Peacock 53 
 
 V. Pearson 176 
 
 V. Peavey 166^ 507 
 
 V. Pendery I45 
 
 V. People 251 
 
 V. Perkins . 218 
 
 V. Perry 278 
 
 V. Peterson , . . . 472 
 
 V. Pettis 382 
 
 V. Petty 458 
 
 V. Phillips 182, 215, 259 
 
 V. Pierce 217 
 
 V. Pillsbury 51 
 
 V. Piper 40 
 
 V. Poirier 455 
 
 V. Pomeroy 206 
 
 V. Pounds 296 
 
 V. Powell 171, 285 
 
 V. Preston 312 
 
 "' Price 175, 176, 456 
 
 «. Propst 399 
 
 V. Ptacek 303 
 
INDEX TO CASES CITED. SCIS 
 
 Railroad (or Railway) v. Pugh 257 
 
 V. Rambo 73 
 
 V. Read 201 
 
 V. Reagan 386 
 
 V. Rector 292 
 
 V. Redger 303 
 
 V. Reesman 383 
 
 V. Rexioad 175 
 
 V. Rice 257, 278, 458 
 
 V. Richie 163, 276 
 
 V. Righter 166 
 
 V. RHey 194 
 
 V. Ritter 190 
 
 V. Roach 280 
 
 11. Roberson 252 
 
 V. Robinson 163, 175 
 
 V. Rogers 414, 420 
 
 V. Rood 184 
 
 V. Rose 358 
 
 V. Ross 461, 472, 473, 474, 475 
 
 V. Rouse 149 
 
 V. Rowan 29, 414 
 
 V. Ruby 396 
 
 V. Rush 280 
 
 V. Russ 41, 214 
 
 V. Rutherford 287 
 
 V. Ryan 164 
 
 V. Ryles 280 
 
 V. Sanders 215, 383 
 
 V. Sandford 414 
 
 V. Satterwhite 195, 290 
 
 V. Schmidt 208 
 
 V. Schneider 303 
 
 V. Schumacher 149 
 
 V. Schuster 244 
 
 V. Scott 434 
 
 V. SeovUle 49 
 
 V. Sentmeyer 413 
 
 V. Shaoklet 169 
 
 V. Shalley 55 
 
 V. Shanley 230 
 
 V. Sheets 456 
 
 V. Shields 373 
 
 V. Shott 198 
 
 V. Sickings 287 
 
 V. Sims 405 
 
 V. Slater 311 
 
 V. Slattery 289 
 
 V. Slavens 39 
 
 V. Small 244 
 
C INDEX TO CASES CITED. 
 
 Kailroad (or Railway) v. Smith . . . 165, 203, 300, 406, 423, 462, 473 
 
 V. Snell 301 
 
 V. Snyder 121, 175, 177 
 
 V. Spearen 164 
 
 V. Speer 208 
 
 ti. Spence 468 
 
 V. Spencer 169 
 
 V. Spilker 172 
 
 V. Spirk 179 
 
 V. Springfield & Northern R. K 333 
 
 V. Springsteen 281 
 
 V. Stacker 456 
 
 V. State 51, 53, 106, 159, 166, 171, 198, 213, 247, 268, 296, 455, 469 
 
 V. Stevens 14, 202, 474, 481 
 
 V. Stites 382 
 
 V. Stout 18, 25, 123, 126 
 
 V. Strickler 413 
 
 V. Stringfellow 64 
 
 V. Stroud 300 
 
 V. Stutler 15, 16, 28 
 
 V. Styron 126 
 
 jj. Sue 213 
 
 V. SuUivan 66 
 
 V. Swann 288 
 
 V. Sweeney 399 
 
 V. Sweet 443 
 
 V. Swett 383 
 
 V. Swopse 144 
 
 V. Talbot 303 
 
 V. Talley 481 
 
 V. Tarver 413 
 
 V. Tennant 386 
 
 V. Terry figl 266 
 
 V. Texas Pacific R. R. 169 
 
 V. Thomas 197 
 
 V. Thompson 277 
 
 V. Threat 372 
 
 V. Tilton 210 
 
 V. Tindall 29 
 
 V. Torian 208 
 
 V. ToiTey 474 
 
 V. Townsend 219, 382 
 
 V. Tracy 383 
 
 V. Trainor 176 
 
 V. Treadway 213 
 
 V. Trich 179 
 
 V. Tripkosh 257 
 
 V. Troesoh 393 
 
 V. Turner 53, 427 
 
 V. Underwood 73 
 
INDEX TO CASES CITED. CI 
 
 Rjiilroad (or RaDway) v. TJtz 277, 379 
 
 V. Vandiver 46, 181 
 
 u. Van Fatten 165 
 
 V. Vining 172 
 
 V. Voils 195 
 
 V. Walker 112, 165, 384 
 
 V. Walton 241 
 
 V. Ward 400, 424 
 
 V. Ware 197 
 
 V. Warner 165, 381, 384 
 
 V. Waters 458 
 
 ». Watkins 61 
 
 0. Watley 172 
 
 V. Weaver 244, 381, 473 
 
 V. Webb 469 
 
 r. Weese 66,456,467 
 
 V. Welch 457 
 
 V. Welsch 151 
 
 u. West '. 44 
 
 V. Wetmore 53 
 
 «. Whipple 72 
 
 n. Whitaker 451 
 
 V. White 288, 401 
 
 0. Whitehead 74 
 
 V. Whittle 300 
 
 r. WDcox 151, 175 
 
 o. Williams 238, 267, 437 
 
 V. WMliamson 244 
 
 V. Wilson 129, 220, 243, 278, 293, 296, 415 
 
 V. Wingate 291 
 
 V. Winters . 268 
 
 o. Wiswell . . 293 
 
 r. Witter . ^jl 250 
 
 V. Wolfe . ""^\ 46 
 
 V. Wqmack 113, 268 
 
 V. Woriey 399 
 
 V. Woods 215 
 
 V. Woodworth 198 
 
 V. Wright 414 
 
 V. Wyly 165 
 
 V. Wynant 159, 270 
 
 V. Yarwood 258 
 
 V. Young 211, 470 
 
 V. Zebe 283 
 
 V. Zink 421 
 
 Rait V. N. E. Furniture Co 42 
 
 Ramsay v. Qninn 453 
 
 Ramsdell r. N. Y. & N. E. R. E. 489 
 
 Randall v. Bait. Se O. R. R 419 
 
 Randleaon v. Murray 59 
 
(jji INDEX TO CASES CITED. 
 
 Eandolph v. O'Riordan , . , 169, 312 
 
 Bankin v. Ingwersen 140 
 
 Kapho V, Moore '^9 
 
 Kapson v. Cubitt 54, 476 
 
 Ratte V. Dawson 125 
 
 Rauch V. Lloyd 175, 269 
 
 Ravenscraft v. Missouri Pac. R. R 149 
 
 Ray u. Poplar BlufE 340 
 
 V. St, Paul 337 
 
 Rayburn v. Central Iowa R. R 480 
 
 Raymond v. Haverhill 179 
 
 V. Hodgson 227 
 
 V. Keseberg 341, 367 
 
 V. Sheboygan 367 
 
 Rayner v. Mitchell 50 
 
 Read v. Boston & Albany R. R 255, 274 
 
 Readhead v. Midland Railway 68, 378 
 
 Reading v. Reiner 139 
 
 Readman v. Conway 142 
 
 Reardon v. Thompson 128, 129 
 
 Eedfield v. Oakland, &c. Railway 26 
 
 Redigan v. Boston & M. R. E 130 
 
 Redmond v. Delta Lumber Co 180 
 
 Red River Line v. Cheatham 411 
 
 Reed v. Belfast 79, 316 
 
 V. Canfield ' . . 454 
 
 V. Chicago, St. P., M. & O. R. R 210, 217 
 
 V. Detroit 352 
 
 V. Missouri Pac. R. R 254 
 
 V. Madison 328 
 
 V. Northeastern R. R 25, 185 
 
 V. Northfield , 349 
 
 V. Stockmeyer 392 
 
 Reedie v. London & Northwestern Railway 57, 59, 61 
 
 Reese v. Biddle 470 
 
 V. Hersey 387 
 
 Reeves v. Dubuque & Sioux City R. R 244 
 
 Regan v. Donovan 500 
 
 Regina v. Chamberlain 236 
 
 V. Crick 236 
 
 V. Crook 236 
 
 V. Markuss 236 
 
 u. McLeod 236 
 
 V. Watts 137 
 
 V. Whitehead 236 
 
 Reichenbacher v. Palmeyer 139 
 
 Ueichla v. Guensfelder 389 
 
 Keid V. Central R. R. & Banking Co 378 
 
 Ileidel v. Moran 54 
 
 Reier w. Detroit Steel Works 54 
 
INDEX TO CASteS CITED. Cui 
 
 Eeilley v. Hannibal & St. Jo. R. R. 215 
 
 Reilly v. Campbell 387 
 
 Remer o. Long Island R. R. 112, 259 
 
 Renniok ». New York Central K. R. 267 
 
 Reqaa v. Rochester 93, 325, 330, 334 
 
 Retan v. Lake Shore & M. S. R. R. 107 
 
 Rex V. Cross 318 
 
 V. Huggins 223 
 
 V. Long 236 
 
 V. Pedley 140 
 
 V. Senior 236 
 
 V. Simpson 236 
 
 V. SpiQer 235, 236 
 
 V. Williamson 236 
 
 Reynolds v. Barnard 500, 502 
 
 v. Hanrahan 43 
 
 V. Hussey 224 
 
 V. Keokuk 246 
 
 V. Merchants' Woolen Co 374, 378 
 
 Rhing V. Broadway & S. A. Co 179 
 
 Rhoades v. Varney 417 
 
 Rhodes v. Cleveland 86 
 
 i;. Georgia R. R. & Banking Co 409 
 
 Rice I!. Montpelier 338 
 
 Rich V. Basterfield 140 
 
 t . Pierpont 235 
 
 Richard v. ConneU 109 
 
 Richards v. Enfield 179 
 
 p. Rough 387 
 
 V. Willard 236 
 
 Richardson v. Great Eastern Railway 70, 75 
 
 V. New York Central R. R. 34, 35 
 
 V. Van Ness 169 
 
 Richlands Iron Co. u. EUdns 414 
 
 Richmond v. Long 91, 92 
 
 V. Mnlholland 308 
 
 Richmond Gas Co. i-. Baker 232 
 
 Richmond, &c. Riulway v. Gaithright 204 
 
 Richmond & Danville R. R. v. Dudley 278 
 
 V. FJnley 427 
 
 V. Greenwood 40 
 
 V. Howard 164 
 
 V. Mitchell 399 
 
 v. Moore 384 
 
 V. Morris 292 
 
 V. Norment 373, 381, 443 
 
 ». Pannill 278 
 
 V. Rush 280 
 
 V. Thompson 277 
 
 V. Worley 399 
 
civ INDEX TO CASES CITED. 
 
 Kichmond & Manchester R. R. v. Moore 105 
 
 Richstain v. Washington Mills 404 
 
 Ricketts v. Chesapeake & Ohio R. R 69, 70 
 
 Riddle a. Proprietors of Looks & Canals 63,88,313 
 
 Ridenhour v. Kansas City Cable Railway 150 
 
 Rider v. White 225 
 
 Riggs V. Boston, Revere Beach & L. R. R 289 
 
 Riley v. Baxendale 372, 407 
 
 ti. Conn. River R. R 240, 274 
 
 V. Famum 329 
 
 V. Galveston City Railway 451 
 
 V. Lissner 137 
 
 V. Simpson 141, 343 
 
 Ring V. Cohoes 321 
 
 Ritchey v. West 235 
 
 Ritchie v. Walker 44 
 
 Roach V. Western & A. R. R 171 
 
 Robbins v. Atkins 136 
 
 V. Chicago 96, 98, 327, 366 
 
 V. Fitchburg R. R 106 
 
 V. Jones 134, 361 
 
 V. Mount 136 
 
 II. Springfield St. Railway 301 
 
 Roberts v. Alexandria & F. R. R 218 
 
 V. Del. & H. Canal Co 297, 303 
 
 V. Smith 374, 392, 465 
 
 Robertson v. Boston & A. R. R 459 
 
 «. Old Colony R. R 201 
 
 V. Penn. R. R 299 
 
 Robinson v. Cone 175, 269 
 
 D. New York Central & H. R. R. R 167, 170 
 
 V. Northampton Street Railway 293 
 
 V. Wright 182 
 
 Robostelli v. New York, N. H. & H. R. R 216, 222, 289 
 
 Rochester v. Campbell 368 
 
 V. Montgomery 365, 368 
 
 Rochester White Lead Co. v. Rochester 86 
 
 Rock Falls v. Wells 323 
 
 Rock Island Supervisors v. United States 96 
 
 Roden ti. Chicago & Grand Trunk R. R 113, 300 
 
 Roe V. Kansas •. . 337 
 
 Rogers v. Galveston City 426 
 
 V. Kennebec Steamboat Co 202 
 
 V. Ludlow Manuf'g Co 375, 401, 442, 448, 462, 468, 491 
 
 Rohback v. Pacific R. R 394 
 
 Rolf V. Greenville 345, 347 
 
 Roll V. Northern Central R. R 148 
 
 Romeo v. Boston & Albany R. R 249 
 
 Rompillon v. Abbott 158 
 
 Ross V. Desmoines Valley R. R 198 
 
INDEX TO CASES CITED. CV 
 
 Ross V. Ionia 340 
 
 V. Madison 85 
 
 t>. New York Centa-al & H. K. R. R 455 
 
 V. Pearson Cordage Co 388 
 
 Roth V. Barrett Co 394 
 
 V. Northern Pacific Lumbering Co 401 
 
 Rothstein v. Penn. R. R 293 
 
 Rott V. Forty Second Street, &c. R. R 196 
 
 Roughan v. Boston Block & L. Co 378 
 
 Roul V. East Tennessee, V. & G. R. R 276 
 
 Roulston V. Clark 110 
 
 Rounds V. Delaware, L. & W. R. R 282 
 
 Rourke v. White Moss, &c. Co 407, 460 
 
 Rous V. Blodgett, &c. Co 471 
 
 Rowell 0. Lowell 318, 320 
 
 Royce v. Guggenheim 133 
 
 Ruchinskey v. French 405 
 
 Ruck 0. Williams 206 
 
 Ruddock V. Lowe 235 
 
 Rudiger v. Chic, St. P. &c. R. R 35 
 
 Rummel v. DUworth 400, 402, 409, 417, 421, 427 
 
 Rummele v. Allegheny Heating Co 151 
 
 Russell H. Carolina Cent. R. R 249, 303 
 
 V. Men of Devon 313 
 
 V. Monroe 308 
 
 V. Shenton 137 
 
 V. TiUotson 429 
 
 Ryall V. Central Pacific R. R 188 
 
 Ryalls V. Mechanics' Mills 376, 442, 448, 487, 489, 492 
 
 Ryan V. Bagaley 470 
 
 V. Chelsea Paper Manuf 'g Co 402 
 
 o. Fowler 371,380,390,417,443 
 
 V. Long Island R. R ' . 406 
 
 V. Pennsylvania R. R 209 
 
 V. Wilson 141 
 
 Sabine & E. T. R. R. i>. Dean 298 
 
 t;. Hanks 147 
 
 Sachem, The 439 
 
 Sack V. Dolese 182 
 
 Sadler b. Henlock 54, 58, 60 
 
 Sadowski v. Mich. Lumber Co 468 
 
 SafEord v. Drew 18, 29 
 
 Sager v. Portsmouth, S. & P. R. R 198 
 
 Sala V. Chic, R. I. & P. R. R 219 
 
 Salisbury v. Marshall 133 
 
 Salladay v. Dodgeville 149 
 
 Salzer v. Milwaukee 345 
 
 Samuellian v. American Tool & Mach. Co 43 
 
 Samuelson v. Cleveland Iron Mining Co 101, 132, 140 
 
evi INDEX TO CASES CITED. 
 
 San Antonio & A. Pass. R. R. v. Harding 399, 451 
 
 V. Long • . 150 
 
 Sanborn v. Atchison, T. & S. F. R. R 389 
 
 V. Madera Flume & Trading Co 372, 409 
 
 Sanchez v. San Ant. & Ar. Pass. R. R 213 
 
 Sanderson v. Mo. Pae. R. R 290 
 
 Sandford v. Eighth Avenue R. R 42, 293 
 
 V. Standard Oil Co 459 
 
 Sandifer v. Lyun 312 
 
 Sandwich v. Dolan 239, 808 
 
 Sandy Lake v. Fork» 340 
 
 Sarch v. Blackburn 224, 226 
 
 Saunders v. Boston 357 
 
 Savage v. Commercial £x. Ins. Co 162 
 
 Savannah v. Waldner 360 
 
 Savannah, &c. R. R. v. Beasley 303 
 
 V. Smith 165 
 
 Sawyer v. Corse 77, 92 
 
 V. Martins 58 
 
 V. McGillicuddy 136 
 
 V. Northfield 79, 366 
 
 V. Rutland & Burlington R. R 459 
 
 Sayward v. Carlson 451 
 
 Scagel V. Chic, M. & St. P. R. R 248 
 
 Scaggs V. Del. & H. Canal Co 303 
 
 Scanalzreid v. White 134 
 
 Scanlan v. Boston 366 
 
 Scanlon v. Boston & Albany R. R 422 
 
 Scannal v. Cambridge 322, 340 
 
 Scarborough v. Midland R. R 55 
 
 Schaefer v. Osterbrink 42 
 
 V. St. Louis, &c. R. R 290 
 
 SchaefEer ». Washington City, &o. R. R 162 
 
 Schafer v. New York 325 
 
 Schaible v. Lake Shore & M. S. R. R 412 
 
 Schexnaydre v. Railroad 113, 266 
 
 Schiffler v. Chic. & N. W. R. R 291 
 
 Schilling V. Abernathy . _ 120 
 
 V. Chicago, M. & St. P. R. R 299 
 
 Schlater v. Wilbert 302 
 
 Schleireth o. Missouri Pacific R. R 29 
 
 Schmeer v. Syracuse Gas Lt. Co. 232 
 
 Schmidt V. Bauer 265 
 
 V. Kansas City Distilling Co 119, 125 
 
 V. Steinway & H. P. R. R 48 
 
 Schmolze v. Chic, M. & St. P. R. R 113, 297 
 
 Schneidau t). N. O. & C. R. R , 152, 155 
 
 Schneider v. Chicago, B. & N. R. R. 479 
 
 Schoenfleld v. Milwaukee City Railway 260 
 
 Schofield o. Chicago, M. & St. P. R. R 296 
 
INDEX TO CASES CITED. Cvii 
 
 . Schoolcraft v. Louisville & N. R. K 4S3 
 
 Schooner Norway v. Jansen 443 
 
 Schopman b. Boston & Worcester R. R 70, 190 
 
 Sohroeder e. Chicago, R. I. & Pac. R. R 480 
 
 V. Flint & P. M. R. R 45I 
 
 V. Michigan Car Co. 389 
 
 Schroth 0. Frescott 349 
 
 Schulte V. N. O. City, &c. R. R ! ! 266 
 
 Schultz ». Chicago & Northwestern R. R 258, 273 
 
 Schulze V. Robe 373 
 
 Schumacher v. St. Louis & S. F. R. R 373 
 
 Sclimgen v. Chic, M. & St. P. R. R [ . ' 297 
 
 Scott 0. Darby Coal Co 427 
 
 o. Dublin & Wicklow Railway 242 
 
 V. London & St Eath. Docks Co 183 
 
 V. Mayor of Manchester 63, 86, 87 
 
 V. Simons I34, 139 
 
 Scranton v. Grore 303 
 
 Scribner v. Kelly 223 
 
 Scullin V. Dolan 363 
 
 Seaboard & Roanoke R. R. v. Joyner 113 
 
 Seaman v. Koehler 171 
 
 Seamans v. Del., L. & W. R. R 301 
 
 Seare v. Prentice 235 
 
 Searle v. Lindsay 388, 395, 399, 452 
 
 Seaver v. Boston & Maine R. R 371 
 
 Secord v. Chic. & M., &c. R. R 426 
 
 Sedgwick v. Illinois Central R. R 278 
 
 Seese v. Northern Pacific R. B 380 
 
 Seger v. Barkhamstead 309 
 
 Seigel 17. Eisen 288 
 
 Sekarak v. Jutt 257 
 
 Seley v. Southern Pacific R. R 382, 422, 434 
 
 Selinas v. Vermont State Agricultural Society 105 
 
 Selma, Rome & D. R. R. v. Lacy 35 
 
 Senior v. Ward 399 
 
 Sessengat v. Posey 60 
 
 Severy v. Nickerson 100, 105 
 
 Sewell r. Cohoes 324 
 
 Sexton V. Turner 433 
 
 Sey B. Edgeley 59 
 
 Seymour v. Cent. Vt. B. R. 130 
 
 V. Maddox 407, 408, 415, 417, 424, 441, 492 
 
 V. Salamanca 325 
 
 Shadford v. Ann Arbor 388 
 
 Shafer v. Lacock 182 
 
 Shaffers v. General Steam Nav. Co 465, 503 
 
 Shanny v. Androscoggin Mills 377, 417, 442, 462 
 
 Shapleigh v. Wyman 261, 310 
 
 Sharkey v. Lake Roland RaUway Co. 288 
 
Cviii INDEX TO CASES CITED. 
 
 Sharp V. Grey 189 
 
 Shartle v. Minneapolis 325, 349 
 
 Shauck V. Northern Central R. E 449 
 
 Shaw V. Boston & Worcester R. K 144, 145, 262 
 
 V. New York & N. E. E. R 206 
 
 V. Philadelphia 308 
 
 V. Sun Prairie 351, 353 
 
 Shea V. Boston & Maine R. R 489 
 
 V. Gurney 427 
 
 V. St. Paul City Railway 302 
 
 V. Wellington » 504 
 
 Sheehan v. New York Central & H. R. R. R 470 
 
 V. St. Paul & Duluth R. R 113 
 
 Sheets v. Connolly R. R 151 
 
 Sheffield v. Central Union Tel. Co 169 
 
 V. Rochester & Syracuse R. R 237 
 
 Sheilhart v. Detroit 314 
 
 Shelby v. Cincinnati, N. O. & T. P. R. R 218 
 
 V. Claggett 91, 315, 353 
 
 Shelley v. Austin 151 
 
 Shenandoah v. Erdman 307 
 
 Shenandoah Valley R. R. v. Luccado 280 
 
 Shepard v. Creamer 142 
 
 Shepherd v. Chelsea 318 
 
 Sherfey v. Hartley Ill 
 
 Sheridan v. Brooklyn, &c. R. R 167, 267, 271, 293 
 
 V. Palmyra 309 
 
 V. Salem 95 
 
 Sherley v. Billings 53, 192 
 
 Sherman v. Menomenee River Lumber Co 402 
 
 V. Rochester & S. R. R 453 
 
 V. Williams 93 
 
 Sherry v. New York Central R. R 297 
 
 Shipley v. Fifty Associates 142 
 
 Shippey v. Au Sable 334 
 
 Shirf ey v. Bartley , 224 
 
 Shook V. Cohoes 35I 
 
 Short V. Knapp Ig2 
 
 V. N. O. & Northeastern R. R 185 251 
 
 Showalter v. Fairbanks Co .411 
 
 Shumacher v. St. Louis & S. F. R. R. 373 
 
 Sias V. Reed City 3O8 
 
 Sickles ». Mo., K. &T. R. R ..*!!!! 244 
 
 V. New Jersey Ice Co 260 
 
 Simmons v. New Bedford, V. & M. Steamboat Co . 51 
 
 Simms v. South Carolina R. R 258 266 
 
 Simonds v. Barraboo _ 308 
 
 V. Henry 235 
 
 Simons v. Great Western Railway 198 200 
 
 Sinoer v. Bell '54 
 
INDEX TO CASES CITED. CIX 
 
 Singleton v. Eastern Counties Railway ■ . 172, 270 
 
 Sinton v. Butler 142 
 
 Sioux City & Pacific R. R. v. Stout 116, 123, 125, 126 
 
 Sir Garnet Wolseley, The 265 
 
 Sisco V. Lehigh, & H. R. R 388 
 
 Sizer v. Syracuse, B. & N. Y. R. R 394 
 
 Skinner v. Housatonic R. R 18 
 
 V. London, &c. R. R 68 
 
 V. Railway Co 185 
 
 Slater «. Barker 137,235 
 
 V. Burlington, C. R. & N. R. R 170, 171 
 
 V. Mesereau 54 
 
 Slavin v. New York 345 
 
 Sleath V. Wilson 48 
 
 Sleeper v. Sanborn 266 
 
 Slette V. Railway Co. ..'.... 479 
 
 Slivitski V. Wien 338 
 
 Sloan V. Iowa Central R. R 480 
 
 Small V. Howard 235 
 
 Smalley v. Appleton 349 
 
 SmethuTst v. Barton Square Church 159 
 
 Smith V. Baker 425 
 
 V. Birmingham Gas Light Co 62 
 
 V. Boston Gas Light Co 232, 241 
 
 V. Boston & Maine R. R 253, 255 
 
 V. Bromley 369 
 
 V. Burlington, C. R. & F. R. R: 480 
 
 V. Causey 223 
 
 V. Chicago, M. & St. P. R. R 377, 456 
 
 V. Citizens Railway 302 
 
 V. Condrey 32 
 
 V. Conway 312 
 
 V. Drake 411 
 
 V. Elliott 140 
 
 V. Flint & Pere Marquette R. R 469 
 
 V. Great Eastern Railway 228 
 
 V. Irwin 409 
 
 V. Jackson 307 
 
 V. Lowell Manuf' g Co 439 
 
 V. Maine Central R. R 301 
 
 V. Marrable • 132 
 
 V. Milwaukee Exchange 65 
 
 V. New York Central & H. R. R. R 378, 460 
 
 V. Norfolk & So. R. R 114 
 
 V. O. & O. Steamship Co 249 
 
 v.Pelch 111,224,225,226 
 
 V. Peninsular Car Co 390 
 
 V. Peninsular Car Works 371, 406, 408 
 
 V. Phil. & R. R. R f 01 
 
 V. Rochester 315 
 
ex INDEX TO CASES CITED. 
 
 Smith V. Sibley Manuf 'g Co 414 
 
 I). Smith 239 
 
 v.. St. Louis & Pacific R. K 470 
 
 V. Wabash K. R 301 
 
 V. Wendell 837 
 
 V. Wildes 266 
 
 V. Wrightsville & T. R. R 2S9 
 
 Sraoot V. Mayor of Wetumpka 89 
 
 Smyth V. Bangor 345 
 
 Sneiderw. Treiohler 378 
 
 Snider ». St. Paul 81 
 
 Snow V. Adams 319, 331, 338 
 
 V. Fitchburg R. R 72, 193 
 
 V. Housatonic R. R 274, 371, 382, 393 
 
 ». Provincetown 258 
 
 Snowden v. Boston & Maine R. R 287 
 
 Snyder v. Gordon 135 
 
 ». Witt 39 
 
 Soder v. St. Louis, Iron Mt. & Soi R. R , . 382 
 
 Solomon R. R. v. Jones 480 
 
 Sommers v. Marshfield 361 
 
 Songstad v. Burlington, C. R. & N. R. R 416 
 
 Soon Hing t». Crowley 483 
 
 South V. DennistOH 16 
 
 South Covington, &c. Railway v. Ware 257, 282 
 
 South Florida R. R. ». Price 456 
 
 V. Weese 66, 456, 467 
 
 South & North Alabama R.. R. v. Donovan 187 
 
 South Ottawa b. Foster 79 
 
 South Toledo, &c. R. R. v. Chisholm 243 
 
 Southcote u. Stanley , . 108,131,476 
 
 Southern Kansas Railway b. Crocker 436 
 
 V. Rice 46 
 
 Southern Ohio R. R. w. Morey -'101,105 
 
 Southern Pacific R. R. v. Burke 414 
 
 V. Johnson 420 
 
 V. Lafferty 420 
 
 V. Pool 149 
 
 Southern Railroad- ». Bryant 244 
 
 Southern Railway ». Hunter 112 
 
 V. Torian 208 
 
 Southside Passenger Railway ». Trioh 179 
 
 Southwell V. Detroit 327, 865 
 
 Southwest Virginia Improvement Co. v. Andrew 406 
 
 Southwick V. Estes 48 
 
 Sparhawk ». Salem 389 
 
 Spaulding v. Flynt Granite Co 387 
 
 V. Sherman 179, 351 
 
 V. Winslow 160 
 
 Spellman v. Chicopee' 848 
 
INDEX Xa CASES CITED. CXI 
 
 Spencer v. Milwaukee & Font du Chien B. B 287 
 
 Spicer v. South Boston Iron Co 274 
 
 Splittorf V. State 128, 309 
 
 SpofEord V. Harlow 110, 239, 312 
 
 Spohn V. Missouri Pacific R. R 192, 283 
 
 Spooner v. Brooklyn City R. R 167, 293 
 
 V. Delaware, L. & W. R. R 257 
 
 Sprague v. Smith 70 
 
 Springer v. Philadelphia 352 
 
 Springfield v. Le Claire 95, 98 
 
 Springfield, &o. Co. o. Grogan 451 
 
 Springfield Cons. R. R. v. Welsoh 151 
 
 Sprow V. Boston & Albany R. R 210, 262 
 
 Squires v. Chillicothe 349 
 
 St. Clair v. Missouri Pacifitj R. R 244 
 
 St. Joseph & G. I.^R. R. v. Hedge 184, 290 
 
 St. Louis, A. & T. R. R. v. Welch 457 
 
 St. Louis Con. R. R. v. O'Hara 212 
 
 St. Louis, Iron Mt. & So. R. R. v. Box 297 
 
 w. Monday 113 
 
 V. Rice 278, 458 
 
 St. Louis, &c. R. R. V. Aven 158 
 
 V. Hensou 26 
 
 v.. Martin 297 
 
 V. Needham 475 
 
 St. Louis & S. F. R. R. v. Christian 151 
 
 V. Schumacher 149 
 
 V. Weaver 244, 381, 473 
 
 V. Whittle 300 
 
 St. Louis & S. W. R. R. V. Holbrook 64 
 
 St. Louis S. W. R. R. v. Threat 372 
 
 St. Louis, Vandaiia «f T. H. R. R. v- Bell 126 
 
 V. Faitz 215 
 
 St. Paul V. Kuby 152 
 
 St. Paul Water Co. v. Ware 60, 96, 327 
 
 St. Peter v. Dennison 61 
 
 Stack V. Portsmouth 325 
 
 Stackhouse v. Lafayette 85 
 
 Stackpole V. Healey 328 
 
 Stafford v. Ingersoll 109 354 
 
 Standard Manuf'g Co.'s Appeal 380 
 
 Standard Oil Co. v. Helmick 437 
 
 Stanley v. Chic. & N. W. R. R 394 
 
 V. Durham & N. R. R 197^ 217 
 
 Stanton V. Metropolitan R. R 255 
 
 V. Salem 349 
 
 V. Springfield 345 
 
 Stark V. Lancaster 324, 325, 338 
 
 State V. Bait. & Lehigh R. R. . 74 
 
 V. Baltimore & Ohio R. B. 297 
 
Cxii INDEX TO CASES CITED. 
 
 State V. Boston & Maine R. R 25, 218, 301 
 
 V. Burlington 79, 82, 316 
 
 V. Donahue 224 
 
 V. Gibson Commissioners 325 
 
 V. Gorham 366 
 
 V. Grand Trunk Railway 31 
 
 B. Hardister 236 
 
 V. Iowa Central R. R 148 
 
 V. Maine Central R. R 31, 291, 301 
 
 V. Manchester & Lawrence R. R 31, 147, 148, 154, 250 
 
 V. Moore 112 
 
 V. Pittsburg & Connelsville R. R 33, 35 
 
 V. Society, &c 363 
 
 V. Union R. R 217, 297 
 
 V. Western Maryland R. R 455 
 
 State of Missouri, The 45 
 
 Steamboat New World v. King 137, 201 
 
 Steamer Harrisburg v. Rickards 19, 21, 22 
 
 Steamship Belgenland v. Jansea 150 
 
 Stebbins v. Oneida 353 
 
 Steel V. Southeastern Railway 57 
 
 Steele v. Central R. R. of Iowa 259, 273 
 
 StefEe V. Old Colony R. R 488 
 
 StefEenson v. Railway Co 479 
 
 Stein V. Council Bluffs 181 
 
 Stephani v. Manitowoc 351 
 
 Stephen v. Smith 285 
 
 Stephenson v. Duncan 436, 437 
 
 Ster V. Tuety 360 
 
 Sterger v. Van Sicklen 143 
 
 Sterling v. Merrill 349 
 
 V. Thomas 95 
 
 Stevens e. Nichols 104 
 
 V. Oswego & Syracuse R. R 186, 261 
 
 V. Woodward 50 
 
 Stevenson v. Joy 359 
 
 Stewart v. Bait. & Ohio R. R 38 
 
 V. Brooklyn & Crosstown R. R 53, 192 
 
 V. Harvard College 99, 143 
 
 V. Havens 116 
 
 V. Nashville , . 244 
 
 ?). N. Y., N. H. & H. R. R '. '. . 247 
 
 V. Philadelphia, W. & B. R. R 373^ 443 
 
 Stickney v. Salem 399 
 
 Stiles V. Geesy 165 
 
 Stinson v. Gardiner 328 
 
 Stirk V. Central R. R. & Banking Co 385 
 
 Stokes V. Saltonstall 124, 181, 189, 190, 282, 292 
 
 Stone V. Chic, St. P. &c. R. R 46 
 
 V. Dry Dock, E. B. & B. R. R 151, 152, 173 
 
INDEX TO CASES CITED. Cxiii 
 
 Stone 17. Hubbardston 322, 346, 347, 348 
 
 V. Hyde 488 
 
 V. FenDsylvania R. R 214 
 
 Storey v. Ashton 50 
 
 .Storher v. St. Louis, Iron Mt. & So. R. R 185 
 
 Storrs V. Utica 93, 326, 327 
 
 Stoughton I!. Porter 3Q8 
 
 Stout V. Sioux City & Pacific R. R 123 
 
 Strahlendorf v. Rosenthal 394 443 
 
 Stratton v. Staples hq 333 
 
 Straugh o. Detroit, L. & N". R. R 299 
 
 Strauss v. Kansas City, St. Jo. & C. R. R 291 
 
 Strawbridge v. Bradford I5I 330 
 
 Street v. Holyoke 34g 
 
 Stringer v. Ala. Min. R. R II3 
 
 V. Frost 322 
 
 Stringbam v. Hilton 39O 
 
 V. Stewart 448 
 
 Stroble v. Chicago, M. & St. P. R. R ', 430 
 
 Strong V. Canton, A. & N. R. R II4 
 
 V. Illinois Cent. R. R 276 280 
 
 V. Stevens Point 269 
 
 Struck 0. Chic, M. & St. P. R. R 297 
 
 Strudgeon v. Sand Beach 357 
 
 Studley v. Oshkosh 3I4 
 
 Stumps V. Kelley 224 
 
 Styles V. Tyler 236 
 
 Stutz V. Armour 451 
 
 Suber v. (Ja., C. & N. R. R 196 
 
 Suburban El. Co. v. Nugent 307 
 
 Sullivan v. Fitchbnrg R. R 278, 412 
 
 V. India Manuf' g Co 389, 400, 404, 409 
 
 V. Missouri Pacific R. R 457 
 
 V. New York, L. E. & W. R. R 301 
 
 r. New York, N. H. & H. R. R 450 
 
 V. Pennsylvania Co 209, 284 
 
 V. Pennsylvania R. R 284 
 
 ». PhiL & Reading R. R 124, 181 
 
 V. Tioga R. R 459 
 
 V. Waters 128 
 
 V. Union Pacific R. R 21 
 
 Summers v. Crescent City R. R 287 
 
 Summersell v. Fish 371, 449 
 
 Supervisors v. United States 96 
 
 Sussex Freeholders v. Strader 79, 81, 86 
 
 Sutherland v. Troy & Boston R. R 281 
 
 Sutton V. Bank of England 62 
 
 V. N. Y. Cent. & H. R. R. R 106 
 
 V. Temple 133 
 
 V. Wauwatosa 253, 254 
 
CXIV INDEX TO CASES CITED. 
 
 Sutzin V. Chic, M. & St. P. R. R. . . 114 
 
 Svenson v. Atlantic Mail Steamship Co 469 
 
 Swainson v. Northeastern Railway 476 
 
 JSwansey v Chace 370 
 
 Sweat V. Boston & Albany R. R 149^ 331 
 
 Sweeney v. Newport 318, 324, 325 
 
 V. New York Steam Co I79 
 
 Sweeny v. Old Colony & Newport R. R. ... 101, 102, 106, 108, 128 
 Swift V. Madden 4,37 
 
 r. Rutowski 424 
 
 Swoboda v. Ward ^ . 421 
 
 Swords V. Edgar I39 140 
 
 Sykes v. Pawlet 337 
 
 Tabor v. St. Paul 334 
 
 Taggart v. Fall River gg 
 
 Tainter v. Worcester g2 
 
 Tallahassee v. Fortune 31g 
 
 Tarrant v. Webb 393^ 395 
 
 Tarry v. Ashton 362 
 
 Tasker v. Farmingdale 337 
 
 Taylor v. Bailey 23g 
 
 V. Carew Manuf'g Co 187,' 240, 265 
 
 V. Delaware & Hudson Canal Co 210 
 
 V. Evansville & T. H. R. R .' .' ! 472 
 
 V. Georgia Marble Co 472 
 
 V. Goodwin 3j2 
 
 «. Peckham 79,82,316,335,343 
 
 V. Seaboard & Roanoke R. R 70 
 
 V. Springfield 3jq 
 
 V. Yonkers ! ! ! ' 345, 352 
 
 Teall V. Barden 109 
 
 Telfer v. Northern R. R ' 29 
 
 Tenant v. Goodwin ' j^gg 
 
 Terre Haute & S. F. R. R. v. Mausberger ." .' 384, 399 
 
 Terry v. Jewett ogo 289 
 
 V. New York Central R. R _"' 237 
 
 Tessymond's Case oag 
 
 Texas & New Orleans R. R. v. Barfield . ! 300 
 
 "• Bingle '. . ! ! 436 
 
 Texas & Pac. R. R. v. Archibald 384 413 
 
 "■ Boyd .".'!...' 288 
 
 V. Brown j^- 
 
 V. Bryant ! . . . ! 427 
 
 V. Buckalew - 
 
 V. Cox • . . . . 
 
 ^■9;i^^ '.'.'.'.'.'. "149,246 
 
 »• Hohn 4jg 
 
 V. Huffman • . • 
 
 V. Johnson ■■■......'.'.'.'.'.'.', \ 'q^^ 65 
 
INDEX TO CASES CITED. CXV 
 
 Texas & Pac. R. R. v. Minnick 414, 420 
 
 V. Robinson 163 
 
 V. Rogers 414, 420 
 
 V. Scoville 49 
 
 V. Smith 203 
 
 Thain v. Old Colony R. R 413 
 
 Thall V. Carnie 400 
 
 Thatcher ». Central Traction Co 159, 301 
 
 Thayer v. Boston 63, 87 
 
 V. St. Louis, A. & T. H. R. R 394 
 
 Thirteenth & Fourteenth Street, &c. Railway v. Boudrou .... 293 
 
 Thomas v. Chic, M. & St. P. R. R 129 
 
 V. Hoosier Stone Co ; 241 
 
 V. Mayor of New York 309 
 
 V. Quartermaine 428, 431, 491, 492, 495, 498 
 
 V. Railroad 73 
 
 V. Rhyraney Railway 68 
 
 V. "Winchester 232 
 
 Thompson v. Boston & Maine R. R 275 
 
 0. Bridgewater 307 
 
 u. Bufialo R. R 150, 211 
 
 V. Central R. R 478 
 
 V. Herrman 453, 454 
 
 V. Lowell, Lawrence, &c. R. R , . . 105 
 
 V. New York Central & H. R. R. R 148, 187, 215, 219 
 
 Thoresen v. La Crosse City Railway 211 
 
 Thorn v. Deas 137 
 
 c. New York City Ice Co 378,411 
 
 Thorogood v. Bryan 168, 170, 445 
 
 Thorpe v. Missouri Pacific R. R 244, 421, 436 
 
 V. New York Central & H. R. R. R 72 
 
 Threlkeld ». Wabash R. R 303 
 
 Thrussell v. Handyside 428, 431 
 
 Thurber v. Harlem R. R 269 
 
 Thwings v. Central Park R. R 237 
 
 Thyng v. Fitchburg R. R 247 
 
 Tiemey v. Chicago & Northwestern R. R . 266 
 
 V. Minn. & St. L. R. R 468 
 
 Tift V. Jones 308 
 
 Tighe V. Lowell 328 
 
 Tilley v. New York Central & H. R. R. R 29 
 
 Tillottson V. Tex. & Pac. R. R 208 
 
 Tilton r. Boston & Albany R. R 106 
 
 Tinkham v. Sawyer 407, 411 
 
 Tisdale v. Bridgewater 340 
 
 Titcomb v. Fitchburg R. R 107 
 
 Titus V. Stockbridge 321 
 
 Tobey v. Hudson 347 
 
 Todd V. Flight 140 
 
 V. Old Colony & F. R. R. R 196, 201 
 
Cxvi INDEX TO CASES CITED. 
 
 Todd V. Old Colony & Newport R. R 260, 287 
 
 V. Rowley 224 
 
 V. Troy 324, 347 
 
 Toledo, Peoria & W. R. R. v. Chisholm 243, 246 
 
 V. Conroy 377 
 
 Toledo, St. L. &c. R. R. v. Wingate 291 
 
 Toledo, Wabash & W. R. R. v. Brannagan 241 
 
 V. Brooks 284 
 
 V. Durkin 393 
 
 V. Maine ' 195, 214 
 
 Tollit V. Sherstone 13 
 
 Tolson V. Inland & S. Coasting Co 243 
 
 Tomle V. Hampton 140, 165 
 
 Toole V. Beckett 136 
 
 Toomey v. Donovan 601 
 
 V. Sanborn 103 
 
 V. Turner 237 
 
 Torbush v. Norwich 76 
 
 Totten V. Phillips 138 
 
 Tousey v. Roberts 266 
 
 Towanda Coal Co. v. Heeman 63 
 
 Townsend v. Langles 389, 403, 407 
 
 V. Susquehannah Turnpike Co 62 
 
 V. Wathen 230 
 
 Toy V. U. S. Cartridge Co 389 
 
 Traoey v. Poughkeepsie 348 
 
 Traders' & Travellers' Accident Co. v. Wagley 298 
 
 Transfer Co. v. Kelly 169 
 
 Transfer, No. 4, The 38 
 
 TrapneU v. Red Oak Junction 350 
 
 Trask ». California Southern R.-R 382 
 
 V. Old Colony R. R 501 
 
 V. Shotwell 109 
 
 Treadwell v. Whittier 191 
 
 Treat v. Boston & Lowell R. R 291 
 
 Trexler v. Greenwich 340 
 
 Triese v. St. Paul 324, 338 
 
 Trihay v. Brooklyn Lead Co 372 
 
 Tritz V. Kansas 337 
 
 Trumbo v. City Street Car Co 175 
 
 Trust Company v. Thomason 65 
 
 Trow V. Vermont Central R. R 148, 162 
 
 Troxel v. Vinton 349 
 
 Troy V. Cape Fear & Y. V. R. R 268 
 
 V. Troy & Lansing R. R 368 
 
 Tubbs V. Mich. Cent. R. R 195, 216, 289 
 
 Tucker v. Heuniker 311, 320 
 
 V. Illinois Central R. R 362 
 
 V. Norfolk & W. R. R 112 
 
 Tuff V. Warman 237, 242 
 
INDEX TO CASES CITED. CXVll 
 
 Tannoy v. Midland Railway 455 
 
 Turner v. Boston & Maine E. R 459 
 
 V. Cross 64 
 
 V. Hannibal & St. Jo. R. R 64, 297 
 
 V. Newburgh 307, 353, 355 
 
 V. St. Clair Tunnel Co , 33 
 
 Tuttle V. Detroit, G. H. & M. R. R 382 
 
 t>. Lawrence 253, 312 
 
 Twist V. Winona & St. P. R. R 125, 151 
 
 Twomey v. Swift 442 
 
 Tyler v. Old Colony R. R 247, 303 
 
 V. Sites 113 
 
 Tyndalev. Old Colony R. R 247 
 
 Tyrrell v. Eastern R. R 107 
 
 Uggla v. West End St. Railway 183 
 
 Undejem v. Hastings 310 
 
 Underbill v. Chicago & G. T. R. R 296 
 
 Union Pacific R. R. v. Billeter 457 
 
 V. Callaghan 399, 472 
 
 V. Daniels 386 
 
 V. Doyle 461 
 
 V. Dunden 126, 152, 269 
 
 V. Erickson 456 
 
 V. Fort 397, 400, 401, 417, 429 
 
 V. Henry 217 
 
 V. James 372 
 
 V. Mertes 163, 211 
 
 V. Milliken 394 
 
 V. Kovack 414 
 
 V. O'Brien 418 
 
 V. Springsteen 281 
 
 V. Sue 213 
 
 Union Railroad v. State 296, 304 
 
 Union Railway & Transit Co. v. Shacklett 167 
 
 Union Stock Yards Co. r. Conoyer 244 
 
 V. Karlik 324 
 
 United States Rolling Stock Co. v. Wilder 373 
 
 Usher v. W. Jersey R. R 35 
 
 Utley V. Burns 235 
 
 Vaun v. Milwaukee & N. R. R 113, 304 
 
 Valparaiso v. Donovan 349 
 
 Valtez V. Ohio & M. R. R 449, 450 
 
 Van Auken v. Chicago & W. M. R. R 304 
 
 Vandenwater v. New York & N. H. R. R 33 
 
 Vandewater ». N. Y. & N. E. R. R . 219 
 
 Van Dusen v. Letellier 371, 376, 442, 462, 466, 470 
 
 Van Frachen v. Fort Howard 357 
 
 Van Leuven v. Lyke 224 
 
CXVm INDEX TO' OASES CITED. 
 
 Van Loan ». Lake Mills 357 
 
 Vannattau. Central R. R.,&c. . 71,249 
 
 Van Norden v. Robinson . 187 
 
 Varney v. Manchester 329 
 
 Vaughan v. Menlove 229 
 
 Veazie v. Penobscot R. R. . 58, 59, 366, 368 
 
 Veginan v. Morse 489 
 
 Veno V. Waltham , 356 
 
 Vernon v. Cornwell 49 
 
 Vicksburg v. MoLain 126, 152 
 
 Vicksburg & M. R. R. v. Phillips 182 
 
 Victor V. Penn. R. R. 222 
 
 Victory v. Foran 136 
 
 Vinal V. Dorchester 366 
 
 Vincennes Water Supply Co. u. White . 411 
 
 Vinoett v. Cook 362, 363 
 
 Vining v. New York & N. E. R. R 275 
 
 Vinton V. Middlesex R. R 192, 283 
 
 V. Schwab 148 
 
 Virginia Midland R. R. v. White 112 
 
 Vosburg V. Moak 40 
 
 Vreeland v. Chic, M. & St. P. R. R 113 
 
 Vrooman v. Lawyer 223 
 
 Wabash Raii.w'ai:' v. Brow 461 
 
 V. McDaniels 238, 394, 395 
 
 V. Speer 208 
 
 IVabash, St. L. & Pac. R. R. v. Rector 292 
 
 V. Shacklett 170 
 
 WaddeU v. Simonson 470 
 
 Wade V. Columbia El. Co. 149 
 
 V. Lntcher Co 204 
 
 Wadsworth v. Marshall 187 
 
 Waite V. Northeastern Railway 172, 175, 270 
 
 Wakefield v. Connecticut & Pi R. R 186 
 
 V. Newport 76, 77 
 
 Walcott V. Swampscott 76, 83 
 
 Waldron v. Haverhill 86 
 
 Walker v. Boston & Maine R. R. . . 217 
 
 V. Grand Trunk Railway 384 
 
 V. Kansas 337 
 
 V. McLean 298 
 
 i\ Reidsville . . 308 
 
 V. Winstanley = ...... . 103 
 
 Wall V. Delaware, L. & W. R. R 187, 217 
 
 Wallace v. Central Vt. R. R 278 383 
 
 Walsh a. N. Y. & N. E. R. R ......' 35 
 
 V. Peet Valve Co 37I 
 
 V. Whiteley „ ^ 499 
 
 Waltemeyer v. Kansas City 366 
 
INDEX TO CASES CITED. Cxix 
 
 Walters v. Chicago, K. I. & Pac. R. R 152 
 
 WaJtham v. Kemper 79 95 
 
 Walton V. Ackerman 149 
 
 V. Bryn Mawr Hotel Co 394 
 
 V. Sleeping Car Co 208 
 
 Warburton v. Great Western Railway ....... 45 439 457 
 
 Ward 0. Chic, St. P. &o. R. R '. . ' 299 
 
 "• Fagan 13g 
 
 w. Jefferson 334,345,350 
 
 V. N. E. Fibre Co 43 
 
 Warden v. Old Colony R. R 383 
 
 Warner v. Chic, R. I. & Pac R. R. . . . 273 
 
 V. Erie R. R 46, 63, 448 
 
 V. Holyoke 325, 339 
 
 Warren v. Bait. & Ohio R. R 148 
 
 V. Boston & Maine R. R 304 
 
 V. Fitohburg R. R 190, 193, 204, 261 
 
 V. Wildee 374^ 465 
 
 Warsaw v. Dunlap 327 355 
 
 Washington & Georgetown R. R. v. Gladmon .... 243, 269, 418 
 
 V. Hickey 39, 156, 167 
 
 V. MeDade 387 
 
 Washington Railway v. Lacey 163 
 
 Wasmer v. Delaware, L. & W. R. R 73, 297 
 
 Wasson «. Pettit 142, 358 
 
 Waterbury v. Chic, M. & St. P. R. R 213 
 
 ». N. T., C. & H. R. R. R 198, 285 
 
 Waterman v. Chicago & N. W. R. R 246 
 
 Watkins v. Groodall 138, 309 
 
 V. Raleigh, &o. B. R 292 
 
 Watling V. Oaster 371 
 
 Watson V. K. & T. Coal Co 407 
 
 V. Minn. St. Railway 211 
 
 V. Portland Railway 288 
 
 Waud V. Polk County 309 
 
 Way V. Chicago & JJorthwestern R. R. ......... . 437 
 
 Webb's Case 236 
 
 Weber Wagon Co. v. Kehl 435 
 
 Weblin v. Ballard . 489, 492, 495, 500 
 
 Webster v. Fitchburg R. R 193 
 
 V. Hudson River R. R . 167 
 
 Wedgewood v. Chicago & Northwestern R. R 377 
 
 Weed V. Panama R. R 62 
 
 Weeras ». Mathieson 388 
 
 Weet V. Brockport 84, 87, 93 
 
 Weightman v. Washington 95, 96, 98, 149, 351 
 
 Weil V. Dry Dock, E. B. & B. R. R 173 
 
 Weiss V. Jones County 340 
 
 Welfare v. London & Brighton Railway 131, 183 
 
 Weller v. McCormick " 331, 360 
 
gXX INDKX TO CASES CITED. 
 
 Wellington v. Downer Kerosene Oil Co. 231 
 
 Wellman v. Susquehanna Depot 340 
 
 Wells «.Coe , • !!? 
 
 ». Howell 109.364 
 
 V. New York Central R. R. . . . ^ 200 
 
 «• Sibley 307 
 
 Welsh V. Alabama & V. R. R ^°^ 
 
 Wendell v. Baxter 135 
 
 V. New York Central & H. R. R. R 269 
 
 Wenzler v. McCotter 139 
 
 Werle v. Long Island R. R 283 
 
 Werner v. Citizens' Railway 163 
 
 West V. Eau Claire 348 
 
 Westaway v. Chic, St. P. & C. R. R 219 
 
 West Boylston v. Mason 370 
 
 Westbrook v. Mobile & Ohio R. R 177 
 
 West Chicago St. R. R. v. Martin 185 
 
 V. Piper 40 
 
 Western & Atlantic R. R. v. Bishop 200, 506 
 
 V. Roberson 252 
 
 t>. Turner 53 
 
 V. Vandiver 181 
 
 w. Voils . 195 
 
 V. Wilson 220 
 
 V. Young 151, 211 
 
 Western Coal & Mining Co. v. Ingraham 393 
 
 Western Md. R. R. v. Kehoe 163, 296 
 
 Western R. R. v. Williamson 244 
 
 Western Savings Fund Society v. Philadelphia 86 
 
 Western Stone Co. v. Whalen 396 
 
 Western Union Tel. Co. v. State 184 
 
 Weston V. Troy 244 
 
 West Philadelphia, &c. Railway v. Gallagher 293 
 
 Weymouth v. New Orleans 141 
 
 Whalen v. Chicago & Northwestern R. R 219 
 
 <;. Chicago, R. I. & Pac. R. R 480 
 
 Whaley v. Bartlett 244 
 
 V. Citizens' Gas Light Co 310 
 
 What Cheer Coal Co. v. Johnson 458, 472 
 
 Whatman v. Pearson 51 
 
 Wheaton v. Hadley 349 
 
 Wheeler v. Wason Manuf'g Co 401 
 
 V. Worcester 85 
 
 Wheelock v. Boston & Albany R. R 22£, 288, 296 
 
 Wheelright v. Boston & Albany R. R 261 
 
 Whipple V. N. Y., N. H. & H. R. R 386, 421 
 
 Whirley v. Whiteman Ill, 175, 239 
 
 White V. Bond 79, 95 
 
 V. Boston 340 
 
 V. Cincinnati, N. O. & T. P. R. 11 286 
 
INDEX TO CASES CITED. CXXl 
 
 "White V. Concord R. R 452 
 
 V. Fitchburg R. R 68, 69 
 
 V. Great Western Railway 200 
 
 V. Jameson 60 
 
 V. Louisville, N. O. & T. R. R 278 
 
 V. Phillipston 76, 79, 83 
 
 17. Winnissimmet Co 239 
 
 "Whitelaw v. Memphis & Charleston R. R 406 
 
 Whitfield B. Meridian 91, 315, 349 
 
 Whitford v. Panama R. R 25, 33 
 
 Whitman o. Penn. R. R 249 
 
 Whitmore u. Boston & Maine R. R 457 
 
 Whitney v. Hitchcock 9 
 
 0. Lowell 354 
 
 Whittaker v. Delaware & Hudson Canal Co 443 
 
 V. Manchester & S. R.' R 220 
 
 Wichita & Western R. R. v. Davis 165, 303 
 
 Wiel V. Wright 310 
 
 Wiger V. Pennsylvania R. R 439 
 
 Wiggett 0. Fox 394, 476 
 
 Wiggins Ferry Co. v. Blakeman 397 
 
 Wight Fire-Proofing Co. v. Rockzai 149 
 
 Wigmore v. Jay 440 
 
 Wilcox V. Rome, W. & O. R. R 237 
 
 V. Zane 136 
 
 Wilds V. Hudson River R. R 148, 165, 243, 249, 257 
 
 Wilkins v. Rutland 341, 343 
 
 Wilkinson v. Detroit Steel & Spring ton Works 60, 117 
 
 V. Farrie 264 
 
 V. Parrott 228 
 
 Will V. Mendon 314 
 
 Willard y. Newbury 327,330,366 
 
 V. Swanson 165 
 
 Willett V. St. Albans 79 
 
 Willetts V. Buffalo & Rochester R. R 158 
 
 Willey V. Boston El. Light Co 499 
 
 Williamette, The 38,167 
 
 Williams v. Adams 78 
 
 r. Clinton 148 
 
 i>. Clough 371,401,424,492 
 
 V. Cummington 325 
 
 V. Delaware, L. & W. R. R 277, 412 
 
 V. East India Co 230 
 
 V. Edmunds 169 
 
 17. Hedley 369 
 
 r. Kansas City, S. & M. R. R 112 
 
 V. Lawrence .... 346 
 
 V. Pullman Palace Car Co 72 
 
 Williamson v. Sheldon Marble Co 426 
 
 Willis V. Long Island R. R 257, 282, 286 
 
CXXU INDEX TO CASES CITED. 
 
 Wills V. Lynn & Boston R. R 283, 294 
 
 Willy V. MuUedy 138 
 
 Wilmot V. Howard . 235 
 
 Wilson V. Brett I47 
 
 V. Finch Hatton I33 134 
 
 V. Madison, &c. R. R 475 
 
 "•Merry 374,378,441,448,449,452,466 
 
 V. Michigan Cent. R. R 279 
 
 «. N. Y., N. H. & H. R. R .' 2I8 
 
 V. Treadwell I33 
 
 V. Willimantic Linen Co 337 
 
 Wilton V. Middlesex R. R 297 
 
 Wiltse V. State Board Bridge Co 51 
 
 Wiubigler v. Los Angeles 91 92 
 
 Winkler v. Fisher 49 
 
 Winn V. Lowell 331^ 352 
 
 Winner v. Oakland 3()g 
 
 Winsbip V. Enfield 32o 
 
 V. N. Y,, N. H. & II. R. R '. '. " [ \ \ \ \ 214 
 
 Winstanley v. Chicago, M. & St. P. R. R 160 
 
 Winter v. Federal St. Railway 209 
 
 Winterbottom v. Wright 12 
 
 Winters v. Kansas City Cable R. R 175 
 
 Wiswell V. Doyle 152 
 
 Witherly «. Regent's Canal Co 237 
 
 Withers v. North Kent Railway 185 206 
 
 Witman v. Elkhart 308 
 
 Witsell V. W. Asheville Railway 204 
 
 Witte V. Diefenbach 378 
 
 V. Hague 394 
 
 Wobarn v. Henshaw 355 
 
 Woeckner v. Erie EL Motor Co 17^ 176 
 
 Wolf V. Railway Co 177 
 
 WolfE Manuf'g'Co. v. Wilson .' 145 
 
 Wood V. Clapp 235 
 
 V. Independent School District of Mitchell . . 116, 121, 127, 331 
 
 V. Locke 419, 422 
 
 Wooden v. Western N. Y. R. R 455 
 
 Woodley v. Metropolitan District Railway 428 
 
 Woodman v. Metropolitan District Railway 407 
 
 V. Metropolitan R. R 59, 101, 320, 341 
 
 Woods V. Lloyd 359 
 
 V. Naumkeag Steam Cotton Co 136, 138 
 
 V. Tipton Commissioners 268 
 
 Woodward v. Mich., So. & N". Ind. R. R 34 
 
 V. New York, L. E. & W, R, R 296 
 
 Woodward Iron Co. v. Andrews 495 
 
 Woolfe V. Chalker HI 226 
 
 Woolsey v. Chic, B. & Q. R. R \ 197] 291 
 
 Worcester v. Eaton ' 369 
 
INDEX TO CASES CITED. CXXlll 
 
 Worlds V. Georgia R. R 409 
 
 Worley v. Cincinnati, H. &. D. R. R 18 
 
 Worth V. GiUing 223 
 
 Worthington v. Mencer 238 
 
 V. Parker 138 
 
 Wotton 0. Hunt 15, 16 
 
 Wragge i. S. C. & Ga. R. R 219 
 
 AVray v. Evans 60 
 
 Wright V. Boston & Albany R. R 128 
 
 V. Cincinnati & C. R. R 297 
 
 V. Detroit, G. H. & M. R. R 151 
 
 «. Maiden & Melrose R. R 148,186,239,254,269,311 
 
 c: Midland Railway 70 
 
 V. New York Central R. R 46, 63, 393, 396, 462 
 
 V. Roxburgh 476 
 
 V. Templeton 311 
 
 Wrinn v. Jones 312 
 
 Wycoff V. Queens County Ferry Co .... 191 
 
 Wyllie B. Palmer . . . • 42 
 
 Wyman & Philadelphia . . 345 
 
 Wymore v. Mahaska Co 170, 171 
 
 Wynn v. Allard 267 
 
 V. City & Suburban Railway 118, 406 
 
 Tancet v. Wabash, St. L. & P. R. R 186, 299 
 
 Yarborough v. Bank of England 62 
 
 Yarmouth i. France 430, 431, 492 
 
 Yates ('. Brush Electric Light Co 233 
 
 t\ McCullough Iron Co 437, 473 
 
 Yeaton ». Boston & Lowell R. R. . 401 
 
 Yeaw V. Williams 158, 323 
 
 Young V. Chic, M. & St. P. E. R 254 
 
 V. Douglass 356 
 
 V. Harvey 116, 363 
 
 r. Miller 411 
 
 V. Pennsylvania R. R 70 
 
 V. Pridel 18 
 
 V. Waterville 314 
 
 V. Yarmouth 317 
 
 Zeigler v. Danbury & Norwalk R. R 459 
 
 17. Day 449 
 
 Zoebisch v. Tarbell 103, 128 
 
 Zurn V. Tetlow 409 
 
PERSONAL INJURIES. 
 
 CHAl>TER I. 
 
 OF PARTIES PLAINTIFF. 
 
 SECTION I. 
 
 genebally: op the natube and form op the action. 
 
 § 1. Subject of the 'Work the Civil Action in Tort. — In the 
 present work, it is intended to discuss those cases only in 
 which the action rests upon negligence on the part of the de- 
 fendant, the element of express malice, or criminal intent, be- 
 ing excluded from consideration. But it is obvious that many 
 cases involve two elements, and so call for the application of 
 either the civil or criminal remedy, or of both. Thus in the 
 familiar case of the wrongful beating of a servant, the wrong- 
 doer is liable to a criminal prosecution, as for a breach of the 
 peace ; to an action of tort in the nature of trespass, by the 
 injured servant, to recover such damages as he may have suf- 
 fered by reason of the beating ; and to an action in the nature 
 of ti'espass on the case, brought by the master to recover such 
 damages as may have resulted to him by reason of his loss of 
 the services of his servant, through the wrongful act of the 
 defendant. 
 
 § 2. The Civil and Criminal Remedies independent of each 
 other. — In an early English case, occurs a dictum that " if 
 one beat the servant of J. S., so that he die of the beating, 
 the master shall not have an action against the other, for the 
 battery and loss of service, because it has now become an 
 offence against the crown, and turned into a felony, and this 
 
 1 
 
2 PERSONAL INJUBIES. [CHAP. I. 
 
 has drowned the particular offence." ^ It is said that this doc- 
 trine arises out of the feudal law, which would not allow a 
 prosecution for a civil injury where the act complained of 
 amounted to a felony, because the ci'ime worked a forfeiture 
 of the feudal grant and of the criminal's personal estate, so 
 that there could be nothing left to satisfy the private demand. 
 But this doctrine has long ceased to be law in England,^ and 
 has never been recognized in the United States, where attain- 
 der, or the forfeiture of the criminal's estate, is unknown.^ In 
 some jurisdictions, the statute provides that the right of action 
 of a party injured by a felony shall not be impaired.* It is 
 certain that, at common law, after a trial, and conviction or 
 acquittal, for a felony, an action might be maintained for the 
 civil injury,^ and it is said : " This is but a suspension of the 
 civil remedy until the offender has been tried for the public 
 offence ; and it is based upon grounds of public policy, making 
 it the interest of parties who have suffered the private injury 
 to prosecute the offender ; to perform their duties to the pub- 
 lic before they seek private redress." ^ It was held in several 
 cases, in the United States, that where the injury sued for was 
 caused by act amounting to a felony, the injured party could 
 not maintain an action therefor until he had first instituted 
 criminal proceedings for the felony.'' But this rule seems never 
 to have been generally adopted, and now, in many of the 
 States, it is provided by statute that in actions to recover 
 damages for the negligent killing of persons, such action may 
 be maintained although no previous prosecution for the crimi- 
 nal act has been instituted. 
 
 1 Higgins V. Butcher, 1 Brownl. 205. 
 
 " See 1 Hale, P. C. 546 ; Crosby v. Leng, 12 East, 409; Osbom v. Gil- 
 lett, 8 Exch. 88. 
 
 8 Green v. Hudson River R. R., 28 Barb. 9, aflSrmed 2 Keyes, 294; 
 Hyatt V. Adams, 16 Mich. 180. 
 
 ♦ See N. Y. Rev. Stats. 292, § 2; Kentucky Rev. Stats, o. 28, § 4. 
 
 6 1 Latch, 144; Styles, 347; 1 Hale, P. C. 546; Crosby v. Leng, 12 
 East, 409. 
 
 8 Hyatt V. Adams, 16 Mich. 180. 
 
 ' McGrew v. Cato, 1 Minor (Ala.), 8 (1824) ; Blackburn v. Minter, 22 
 Ala. 613; Martin v. Martin, 25 Ala. 201; Nelson v. Bondurant, 26 Ala. 
 341. See contra, McBain v. Smith, 13 Ga. 315 ; Hutchinson v. Wheeling, 
 M. & M. Bank, 41 Penn. St. 42. 
 
§§ 2-4.] PARTIES PLAINTIFF. 3 
 
 § 3. Breach of Public Duty the Foundation of the Action : Prin- 
 ciple lUustrated. — The law imposes upon every member of the 
 community certain civil obligations and duties in respect of 
 every other member, and, setting aside from consideration such 
 breaches of duty as involve on the part of the delinquent the 
 exercise of actual malice or criminal intent, there remains a 
 class of cases in which the person injured by the breach of 
 duty may have a remedy for his injury by an action sounding 
 in tort. Thus the principle embodied in the maxim sic 
 utere too ut alienum non Icedas creates a duty in the owner or 
 occupant of land or buildings to exercise due care in maintain- 
 ing and keeping the premises, and the approaches thereto, in 
 a reasonably safe condition, so that persons lawfully and 
 prudently entering thereon may not sufPer injury. The same 
 principle is applied in the rule which makes one who 
 maintains upon his land a common or public nuisance, as 
 a dangerous pit or excavation contiguous to a highway, liable 
 in damages to another who thereby suffers bodily injury.^ 
 Again, the custom of the realm of England, long made a part 
 of the common law, imposes upon common carriers of passen- 
 gers certain public duties in respect of such passengers for a 
 breach of which a passenger injured may have his remedy by 
 an action of tort.^ 
 
 § 4. Form of the Common-Law Action. — For the breach of 
 the duty thus created, the injured person may have his remedy 
 by an action of tort in the nature of trespass to the person, if 
 the injury be direct,^ or of tort in the nature of trespass on the 
 
 * King V. Dewsnap, 16 East, 194; Duncan v. Thwaites, 3 B. & C. 556, 
 584; 5D. 8eR. 447. 
 
 » Bretherton v. Wood, 6 Moore, 141, 3 Brod. & B. 54, as citei post, § 5; 
 Nolton e. Western R. R., 15 N. T. 444; Head v. Georgia Pacific Rail- 
 way, 79 Ga. 358; § 115, post, notes and cases cited. In Pippin v. Shep- 
 herd, 11 Price, 400, which was an action against a surgeon for malprac- 
 tice, it was held to be immaterial by whom the defendant was retained, or 
 by whom his services were to be paid. 
 
 ' See Martinez v. Gerber, 3 Scott, N. R. 386; 3 M. & G. 88. If the 
 act complained of cause the immediate injury, whether it be intentional 
 or unintentional, the proper action is trespass. See Percival v. Hickey, 18 
 Johns. 257; GuiUe v. Swan, 19 Johns. 381, 382. 
 
4 PERSONAL INJUEIES. [CHAP, I. 
 
 case, where the injury is not direct, but so closely connected 
 with the negligent act of the defendant as reasonably to be re- 
 ferred to it as a natural and probable consequence which the 
 defendant was bound to anticipate.^ Among the many cases 
 arising from this breach of duty, are (1) those arising from 
 accidents caused by collision by reason of careless driving on 
 the highway; 2 or by the careless management of railway 
 trains,^ in which class of cases the plaintiff's remedy is in the 
 nature of trespass ; and (2) by the careless vending of danger- 
 ous or noxious substances, whereby the purchaser from the de- 
 fendant's vendee suffers damage, in which class of cases the 
 plaintiff's remedy is by an action of trespass on the case.* 
 
 § 5. Concorrent Remedies ia Contract and Tort: but Action 
 rests on Breach of Duty. — In an important class of cases, 
 notably those arising between carriers for hire and passen- 
 gers, a contract relation subsists between the parties, and the 
 injured party may have his option to sue in tort for the breach 
 of the general duty, or in contract for the breach of the con- 
 tract obligation ; or he may join counts in contract and tort 
 and afterwards elect which form of action he will pursue.^ 
 "It is at the election of the plaintiff to declare in assumpsit, 
 and rely on the promise, or to declare in tort and rest on the 
 breach of duty." ® The measure and burden of proof and the 
 rule of damages will ordinarily be the same whether the ac- 
 tion sound in contract or tort;^ but the actions are distinct 
 and rest on different grounds. Generally the contract cannot 
 vary the extent or character of 'the duty ; but it may create 
 the relation as to which the duty arises.^ Thus, as between 
 
 ' See §§ 97 el seq., post. . * See § 99, post. 
 
 * See §§ 118 et seq., post. * See §§ 129 et seq., post. 
 
 » Ingalls V. Bills, 9 Met. 1, 
 
 » Per Shaw, C. J., in McElroy v. Nashua & Lowell R. R., 4 Cush. 
 400, 403. 
 
 ' Eaton V. Boston & Lowell R. R., 11 Allen, 500. 
 
 ' Ames V. Union Railway, 117 Mass. 541. It is obvious that the 
 measure of care to be required of the defendant, and thus ffle question 
 whether he has been negligent, may in some cases be affected by the 
 terms of the contract between the parties. And this is so whether the 
 plaintiff seek his remedy in contract or tort. Ibid. 
 
§§ 4-5.] PAETIES PLAINTIFF. 5 
 
 passenger and carrier, the duty of the carrier is imposed by the 
 common law as to all passengers, while the contract merely 
 creates the relation of carrier and passenger as between the 
 parties. While it is true that the defendant has contracted 
 with the plaintiff to do carefully that which he has bound him- 
 self to do, — namely, to transport the passenger safely to his 
 destination, — this duty exists, at common law, independent of 
 the contract ; and if the plaintiff elects to waive the contract, 
 he may sue in tort for the breach of duty. And although the 
 passenger is bound to prove the contract, this is for the purpose 
 of showing that he has put himself within the class of persons 
 as to which the common-law duty attaches.^ So it is said that 
 
 1 See Bretherton ». Wood, 6 Moore, 141, 3 Brod. & B. 54. This was 
 an action of case brought against several proprietors of a stage-coach for 
 injuries suffered by the plaintiff, a passenger therein, hj the oversetting 
 of the coach through the alleged negligence of the defendants. The jury 
 having found a verdict against some of the defendants, and in favor of 
 the others, the question was -vrhether such a verdict could be supported. 
 It was held, in the Exchequer Chamber, that as the action was founded 
 upon a breach of duty imposed by the custom of the realm, which was a 
 breach of the law, and as the declaration was framed on a misfeasance, 
 the verdict and judgment thereon should be afiBrmed. The case was most 
 elaborately argued, and Dallas, C. J., in giving judgment, said : " It was 
 contended that the statement of the case in the declaration amounts to a 
 contract, and that being so, aU the rules applicable to actions founded on 
 contracts must govern this, and that it is a rule of law that such actions 
 are joint, and it must be maintained against all the defendants ... or 
 fail altogether. . . . But we are of opinion that this action is not so 
 founded, and that on the trial it could not have been necessary to show 
 that there was any contract, aqd therefore that the objection fails. This 
 action is . . . against common carriers, upon whom a duty is imposed 
 by the custom of the realm, or, in other words, by the common law, to 
 carry and convey goods and passengers safely and securely, so that by 
 their negligence or default no damage or injury happen. A breach of 
 this duty is a breach of the law, and for this breach an action lies, founded 
 on the common law, and which requires not the aid of a contract to sup. 
 port it. . . . Nor is it material whether redress might or might not have 
 been had in an action of assumpsit ; . ■ ■ whether such action might or 
 might not have been maintained; still this action . . . may be supported. 
 ... If the action be not founded on a contract, bnt on a breach of duty 
 depending on the common law, on a tort, or misfeasance, it cannot be con- 
 tended that the judgment is erroneous; for from the nature of the case 
 and the form of action it ia several and not joint." See also Marshall v. 
 
6 PERSONAL INJUEIES. [CHAP. I. 
 
 by the ordinary implied contract of service between master and 
 servant the master binds himself to furnish the servant suita- 
 ble means and appliances for doing the work, and competent 
 and careful employees to work with the servant ; but it is not the 
 less true that the master is bound to this duty independent of 
 any implications from the contract ; so that for a breach of 
 the duty the master is liable at common law.^ And it is appre- 
 hended that in an action for the breach of duty, proof of the 
 contract is necessary only for the purpose of showing that the 
 relation of master and servant existed between the parties 
 when the breach of duty occm-red.^ 
 
 § 6. Illustrations of the Rule. — The distinction between 
 the contract duty and the public duty is further recognized 
 in the rule which prevails generally in the United States, — 
 that the carrier may not, by the terms of his contract with the 
 passenger, avoid the general duty of exercising extreme care 
 in transporting the passenger.* The different principles lying 
 at the foundations of the two forms of action are also illus- 
 trated by the fact that in certain cases a third person, not in 
 privity with the injured person, may have an action for the 
 defendant's breach of the general duty, although the defend- 
 ant's wrongful act was also a breach of an existing contract 
 
 York, Newcastle, & Berwick Railway, 21 L. J. (n. s.) C. P. 34, and cases 
 eitsd post, § 11, note. 
 
 1 See § 192, post. 
 
 ' Those cases are to be distinguished in -which the liability of the de- 
 fendant rests upon a breach of a special or implied contract by which the 
 defendant warrants the plaintiff against injury; for in these cases the 
 liability does not rest upon the question whether the defendant was actu- 
 ally negligent, and the action against him must therefore sound in con- 
 tract as for a breach of the warranty. Thus it is held to be the duty 
 of a livery-,stable keeper to provide horses suitable for the purposes for 
 ■which they are to be let; and on the question of the liability of such 
 stable-keeper for an accident caused by the viciousness of a horse so let, 
 it is immaterial that the keeper did not know that the horse was vicious. 
 And in action brought for the injuiy, the plaintiff must sue in contract 
 for the breach of implied warranty; but if he relies wholly or in part 
 upon the actual negligence of the defendant, he may allege this in a 
 count in tort. See Home v. Meakin, 115 Mass. 326. 
 
 « See §§ 116, 117, post. 
 
§§ 5-7.] PARTIES PLAINTIFF. 7 
 
 between himself and the injured person ; as where a master 
 is permitted to recover damages resulting from his loss of the 
 services of his servant through the fault of a carrier who had 
 agreed with the servant to transport him safely and had failed 
 to do so.^ The rule in these cases is founded upon the con- 
 sideration that the master has a property in the service of his 
 servant, of which property the breach of the defendant's public 
 duty as a carrier has deprived him.^ So it is held that a 
 railroad corporation which leases its road to an individual 
 without authority of law remains answerable to a passenger 
 injured by the negligence of the servants of the lessee, al- 
 though the contract of transportation is made with the lessee ; 
 the reason being that as the corporation owes a duty to the 
 public it cannot avoid this by an illegal transfer of its fran. 
 chise; and the transferee in such case will, as to the per- 
 formance of the public duty, be taken to be the agent of the 
 corporation.^ 
 
 § 7. Remedies created by Statute. — There are also Certain 
 duties, not recognized by the common law, but created by 
 statute, for the breach of which the remedy is in tort. Among 
 these is the duty generally imposed upon municipalities to 
 keep and maintain public highways in a safe condition for 
 travellers.* Of the same class is the liability imposed by stat- 
 ute, in many jurisdictions, upon employers, in certain cases, 
 
 1 See § 11, post. 
 
 « 3 Black. Com. 142. 
 
 ' See Abbott ». Johnstown, &c. Horse Kailroad, 80 N. Y. 27, as cited 
 post, § 49. There is a line of English cases which would seem to hold, 
 where a contract relation subsists between the parties, and by reason of 
 the defendant's negligence in carrying out the contract the plaintifE is 
 injured, that the action for the injury is to be founded solely upon the 
 breach of the contract, and that although the form of the action be in 
 tort, yet all the essential incidents of an action of contract attach to it. 
 This question becomes of importance in considering the matter of joinder 
 of defendants, see § 31, post, and the rights of third parties to sue. 
 See § 11, post. It is believed that the view of the law indicated in the 
 cases referred to is not to be supported by sound reason or the general 
 tenor of authority. For a full discussion of the cases touching this ques- 
 tion, see § 11, post, and note. 
 
 * See §§ 53-56, 60-63, 167 et seq.,post. 
 
8 PEKSONAL INJUKIES. [CHAP. I. 
 
 for injuries suffered by their servants by reason of the negli- 
 gence of a fellow-servant.^ So the statute now generally per- 
 mits damages resulting to the heirs, widow, or next of kin of 
 one killed by the negligence of another, to be recovered for 
 their benefit by the personal representative of such deceased 
 person.2 And in some jurisdictions the negligent killing of • 
 a person may be made the subject of a criminal indictment 
 against the negligent person, whereby a penalty is exacted 
 from him to be applied for the benefit of the heirs, widow, or 
 next of kin of the deceased person.^ Moreover, the action of 
 tort for personal injuries is in many States made to survive^ 
 contrary to the rule of the common law.* 
 
 ■SECTION II. 
 
 COMMON-LAW ACTIONS BY ONE FOB INJUET TO ANOTHER. 
 
 § 8. Generally : WTien Such Actions will lie. — The com- 
 mon law recognizes certain cases in which one person having 
 been injured by the fault or negligence of another, a third 
 person may be entitled to recover, in his own behalf, the dam- 
 age which he has suffered by reason of such injury. Such cases 
 are (1) where the plaintiff was entitled to the services of the in- 
 jured person, of which services he has been deprived by the fault 
 of the defendant, (2) where the plaintiff, by the defendant's 
 act, has lost the society of injured person, to which the law 
 as in the case of husband and wife has ^ven him a certain 
 peculiar claim and right, and (3) when the plaintiff, being 
 charged with the duty of supporting or providing for the in- 
 jured person, has by the defendant's fault been put to extraor- 
 dinary and necessary expense in the care or cure of such 
 person. It is apprehended that, in order to entitle one person 
 to recover damages for an injury to another, the case must 
 be included in one of the classes thus specified. 
 
 1 See §§ 217 et seq., post. » See §§ 21 et seq., post. 
 
 * See § 24, post. * See §§ 17 et seq., post. 
 
§§ 7-10.] PASTIES PLAINTIFF. 9 
 
 § 9. Measure of Damages. — In this class of cases the only 
 measure of damages is the loss actually suffered by the plain- 
 tiff, and neither the pecuniary loss, the bodily injury, nor the 
 mental anguish, suffered by the injured person, are to be taken 
 into account^ So it was held in an action of trespass to re- 
 cover damages caused to the plaintiff by an assault and bat- 
 tery upon his child or servant, — that exemplary damages 
 could not be recovered although the assault was indecent, or 
 otherwise committed under circumstances of great aggrava- 
 tion.^ But the jury may give damages for the loss of ser- 
 vices not only before action brought, but afterwards down to 
 the time when it appears in evidence that the disability may 
 be expected to cease, a like rule applying in such a case as 
 would obtain had the action been brought for an injury to the 
 person of the plaintiff.* But the weight of authority is in 
 favor of the rule that damages are not to be recovered which 
 accrue after the death of the injured person.* 
 
 (a) For Injury to Servant. 
 
 § 10. Lies for Loss of Service- — It is an ancient rule of the 
 common law that if a servant suffer injury by the negligent 
 
 ■ Long 17. Morrison, 14 Ind. 595. 
 
 2 Whitney v. Hitchcock, 4 Denio, 461. 
 
 8 Hodsoll o. Stallebrass, 11 Ad. & El. 301. « Where the action is 
 maintainable on the ground of the loss of services, then both by the law 
 of England and this country, the parent may claim indemnity, not only for 
 the actual loss of services to the time of the trial, but also for any loss of 
 services during the child's minority, which in the judgment of the jury 
 . . . will be sustained, and for the expenses necessarily incurred by the 
 parent in the cure and care of the child in consequence of the injury." 
 Cuming ». Brooklyn City R. R., 109 N. T. 95. Under a statute provid- 
 ing that "every owner or keeper of a dog shall forfeit, to any person 
 injured by such dog, double the amount of damage sustained by him," it 
 was held that the owner of a dog which had injured a minor child so that 
 by reason of the injury the parent had lost the child's services and 
 been put to expense for his cure, was liable to the parent for double the 
 amount of damages thus sustained by him. McCarthy v. Guild, 12 Met. 
 291. This was upon the ground that the words of the statute intended to 
 include the case of all persons injured by a dog either in their persons oi 
 property. 
 
 * See § 16, pott, notes and cases cited. 
 
10 PEESONAL INJURIES. [CHAP. I. 
 
 or wilful act of a third person, and is thereby rendered in- 
 capable of performing the service to which he is bound, the 
 master may have an action in his own naine, for such loss of 
 service, against the person causing the injury^ It was said 
 that in such cases " the master has not any damage . . . but 
 by means of a per quod, Viz., per quod servitium, etc.5 amisit; 
 so that the original act is not the cause of his action, but the 
 consequent upon it, viz., the loss of his service, is the cause 
 of his action ; for ... if the master doth not lose the ser- 
 vice of his servant, he shall not have an action." ^ The right 
 to recover depends upon the principle that the master has by 
 his contract acquired a property in the labor of the servant, 
 of the enjoyment of which property the act of the defendant 
 has deprived him.^ Ordinarily, at common law, while the 
 remedy of the servant for the injury received by him would 
 be in trespass or case, according as the injury was direct or 
 consequential, the master's remedy for the loss of the services 
 of the servant would be in an action of trespass on the case, 
 and where the master sued in the latter form of action for the 
 loss of services of his servant arising from an accidental col- 
 lision with the defendant, it was held that the action was 
 maintainable and the damage not too remote, although case 
 and not trespass would have been the proper remedy had the 
 servant been the plaintiff, the injuries being not direct, but 
 consequential.* 
 
 § 11. So although a Contract between the Servant and the De- 
 fendant. — The rule stated obtains although the defendant and 
 the person injured stand to each other in the relation of con- 
 tracting parties, and the injury sued for arises from the de- 
 fendant's negligence in carrying out his contract with the 
 injured person, for the tort sued for does not consist in the 
 breach of the contract, but in the breach of a public duty im- 
 
 » Bao. Ab. Master & Servant, O.; Reeves, Dom. Rel. 376; 1 Bl. Com. 
 429; Pooley v. Osborne, cited 5 Co. 108 and 10 Co. 130; Mary's Case, 9 
 Co. 113. 
 
 * Mary's Case, uhi supra. 
 
 » 3 Bl. Com. 142. See Hall v. Hollander, 4 B. & C. 660. 
 
 * Martinez v. Gerber, 3 Scott, N. R. 386, 3 M. & G. 88. 
 
§§ 10-ll.J PARTIES PLAINTIFF. 11 
 
 posed by the common kw.^ Thus where the defendant was a 
 common carrier of passengers, and the plaintiff's apprentice 
 was lawfully on the defendant's car, for hire paid by the ap- 
 prentice in the- absence of his master, and by reason of the de- 
 fendant's negligence in carrying the apprentice, he was injured 
 and the plaintiff thereby lost his services ; it was held that the 
 facts displosed a ground of action in behalf of the master, for 
 the loss of service. The court said : " Even if the contract 
 . . . were held to have been made with the apprentice alone 
 and in his own right, it would not exclude liability in tort for 
 injuries caused by the negligence of the defendant ; and upon 
 that liability an action may be maintained by any one who 
 has suffered damage by means thereof. The degree of care re- 
 quired of the defendant, and thus the question whether there 
 was any liability in tort, might be affected by the existence of 
 the relation of contract between the defendant and the person 
 injured. But a tort, not consisting merely in a breach of the 
 contract, being proved, the right to recover for the damages 
 caused must be governed by the general rule of law; and 
 under that rule, will be determined by the nature of the 
 injury, and of the right or interest injuriously affected." ^ 
 
 1 3 Bl. Com. 142. See §§ 3, 4, ante. 
 
 ' Ames V. Union Railway, 117 Mass. 541 ; and see Marshall ». Tort, 
 Newcastle & Berwick Railway, 21 L. J. (n. 8.) C. P. 34; 7 El. & E. 519. 
 In this case it was held that a servant travelling with his master on a 
 railway might have an action against the railway company for the loss of 
 his luggage, although the master took and paid for the servant's ticket, 
 the liability of the railway company in such a case heing independent of 
 the contract. Jervis, C. J., said: "It was admitted . . . that if the 
 plaintiff, instead of losing his property, had broken his leg, he could have 
 had an action for his personal suffering, and his master could have sued 
 for his loss of service. But in what respect could the plaintiff have had 
 an action for his personal suffering ? Not because there was a contract 
 between him and the company, but by reason of a duty irrespective of 
 the contract." Williams, J., concurred and said: "The current of 
 cases . . . establishes that an action like this is to be regarded as an 
 action of tort against the defendants as carriers, on the custom of the 
 realm." And it was held unnecessary to allege or prove a contract. 
 For the application of the general rule in actions against carriers of mer- 
 chandise, see Pozzi v. Shipton, 8 A. & E. 96-3, and cases cited. The prin- 
 ciple upon which the decision in the case, Ames v. Union Railway, supra, 
 
12 PEESONAl INJUKIES. [CHAP. I. 
 
 depends, namely, that the action of tort for personal injuries exists inde- 
 pendent of any existing contract relation between the defeadant and the 
 injured person, has already been considered, §§ 3-6, ante, and is laid down 
 with great elaboration in the case of Bretherton v. Wood, 6 Moore, 141, 3 
 Brod. & B. 54, as cited § 5, ante. But upon a state of facts very similar to 
 those existing in Ames v. Union Railway, the court in Alton v. Midland 
 Railway, 19 C. B. (n. s.) 213, held a rule contrary to that laid down in the 
 Massachusetts case, and apparently opposed to the doctrine of Bretherton 
 V. Wood. In Alton v. Midland Railway, it was held that an action would 
 not lie against a carrier of passengers for hire at the suit of a master for 
 personal injuries sustained, through the carrier's negligence, by his ser- 
 vant, whose services were thereby lost ; the contract for conveyance being 
 between the servant and the carrier. It did not appear that the servant 
 was travelling upon the master's business, in the line of his regular ser- 
 vice, or that the consideration for his conveyance was paid by the master. 
 The case was treated as one of novel intention, and was argued and dis- 
 cussed by the court with great elaboration. The court considered that the 
 defendants' liability for the injury caused to the servant arose solely out 
 of the breach of contract between itself and the servant, and that, the 
 master and the defendant not being in privity, the master could not re- 
 cover. Erie, C. J., said: "I am well aware that there are many cases in 
 which a plaintiff may, at his option, seek redress either by declaring ex 
 contractu or ex delicto, and that there are certain advantages, which are 
 incidental to the form of procedure, to be obtained from adopting the lat- 
 ter form. But where it is necessary to resort to the substance of the 
 cause of action, the distinction between the two has been constantly 
 maintained." Willes, J., said: "It must be admitted . . . that a long 
 series of authorities has established that a master may sue for loss of ser- 
 vices caused by a pure wrong or trespass to his servant, as, by beating 
 him. On the other hand, it is indisputable that no such action has ever 
 been sustained in a case in which the injury to the servant was not action- 
 able in respect of the civil wrong, but only in respect of a duty arising out 
 of and founded upon a contract with the servant. The liability of the de- 
 fendants ... is of the latter kind. " The court does not overrule, neither 
 does it appear clearly to distinguish the case of Bretherton v. Wood. But 
 it is obvious that the two cases are inconsistent, since the opinion in Alton 
 V. Midland Railway rests whoUyupon the assumption that the duty of the 
 carrier to the passenger arises solely out of the contract of transportation 
 — a doctrine expressly denied in Bretherton v. Wood. The court, in Alton 
 V. Midland Railway, cite several cases in support of the doctrine laid 
 down, which upon examination seem to be distinguishable or not in point. 
 In Winterbottom ». Wright, 10 M. & W. 109, it appeared that A. had 
 contracted with the Postmaster-General to provide a mail coach to convey 
 the mail bags along a certain route, and B. and others contracted to horse 
 the coach along the same line, and hired C. to drive the coach. It was 
 held that C. could not maintain an action against A. for injuries sustained 
 
§ llj PABTIES PLAINTIFF. 13 
 
 by him while driving the coach, by its breaking down by reason of latent 
 defects in its construction. The case was held to be one of the class in 
 which the wrong arises merely out of the breach of the contract, in which 
 cases, whether the form -of the action be tort or contract, the party who 
 made the contract alone can sue. And as the defendant's contract was 
 made with the Postmaster-Greneral only, and the plaintiff was in no privity 
 with the defendant, the action was defeated. It is apparent in this case, 
 that the relation of common carrier and passenger could not be supposed 
 to exist, as between the plaintiff and the defendant ; therefore, that de- 
 fendant could not be charged with the breach of a public duty, and that, 
 the action could not be supported, as by a servant against his master, for 
 the reason that the contract relation of master and servant did not exist 
 between the paiides. Had such relation existed, it is apprehended that the 
 breach of the duty owed by the master to the servant, to provide suitable 
 means for doing the work contracted to be done, might well be the ground 
 of an action sounding in tort. In Tollit v. Sherstone, 5 M. & W. 283, 
 289, Maule, B., observed: " It is clear that an action of contract cannot be 
 maintained by a person who is not a party to the contract; and the same 
 principle extends to an action of tort arising out of a contract." But this 
 was an action in trover for the conversion of a horse, and it is evident that 
 the defendant's act did not necessarily include the breach of a public duty. 
 In CoUis V. Selden, 3 C. P. 495, a declaration alleging that the defendant 
 negligently hung a chandelier in a public house, knowing that the plain- 
 tiff and others were likely to be therein and under the chandelier, and that 
 the plaintiff being lawfully in the public house, the chandelier fell upon 
 and injured him, was held bad on demurrer on the ground that the declar- 
 ation did not disclose any duty by the defendant towards the plaintiff. 
 Bovill, C. J., said: "No duty of a public nature is shown. Assuming 
 that for this purpose a public house is to be treated as an inn, which . . . 
 I think we can hardly assume, it is not shown in what capacity the plain- 
 tiff was there. . . . We cannot infer that there was anything in the na- 
 ture of a public nuisance. . . . No contract is alleged. ... I find nothing 
 equivalent to fraud or misrepresentation." The clear inference to be 
 drawn from the case, as reported, would seem to be that had the declara- 
 tion set forth a breach of public duty, as to a plaintiff lawfully in the pub- 
 lic house, it would have been supported. There is nothing in the case to 
 support the doctrine that torts for injuries arise solely out of a breach of 
 contract between the parties, when such a contract as to the subject-matter 
 exists. In the case of Everard v. Hopkins, 2 Bulst. 332, it appeared that 
 the plaintiff had contracted with the defendant, a physician, to cure the 
 plaintiff's servant, and that the defendant was negligent in doing what he 
 had contracted to do, so that the plaintiff lost the services of the servant. 
 An action for the loss of service was supported. The contract being be- 
 tween the defendant and the master of the injured siervant, the case was 
 admitted not to touch the question raised in Alton v. Midland Railway. A 
 scrutiny of the doctrine laid down in Alton v. Midland Railway makes ap- 
 
14 PERSONAL INJUEIES. [CHAP. L 
 
 parent certain difficulties in its application as a geneial rule to a variety of 
 cases. Thus if the liability of the carrier for injuries negligently inflicted 
 by him upon the passenger arises solely out of the contract of transporta- 
 tion, it would seem that the carrier might, by the contract, limit his own 
 liability for accidents. But the weight of authority in the United States is in 
 favor of the rule that the carrier cannot so limit his liability. See Grand 
 Trunk Railways. Stevens, 95 U. S. 655, and other cases cited, § 116, post. 
 It is to be observed however that the English courts, generally, are disposed 
 to hold that the carrier may limit his liability by the terms of his contract. 
 See Gallin v. London & Northwestern Railway, 44 L. J. Q. B. 89, and cases 
 cited §§ 116, 117, post. Again it would seem, under a close application 
 of the rule, that the same negligence which might under one set of cir- 
 cumstances charge the carrier in an action by the master, would under 
 another set of circumstances defeat the action. Thus, if the servant hav- 
 ing purchased a ticket at a railway station, is going to take his place in 
 the train by the direct and proper route over the station platform in which 
 the carrier has permitted a dangeroas hole or pit-fall to exist after suffi- 
 cient notice, and the servant is injured by falling therein ; while the ser- 
 vant may recover against the carrier for the injuries caused by the defend- 
 ant's fault, it would seem that the master would be barred from recovering 
 for the loss of service, since the contract for transportation was complete, 
 and the servant had become a passenger of the carrier. (See § 114, post.} 
 On the other hand, if the servant had entered the platform from the street 
 on his direct way to the ticket office to purchase his ticket, and was in- 
 jured by falling into the hole, it would seem that both the servant and the 
 master might recover as against the carrier, there being no contract to 
 which to refer the carrier's breach of duty. For it is to be noted that the 
 English courts recognize the general rule that the master may recover 
 damages occasioned to him by the injury to his servant, Alton v. Midland 
 Railway, supra; and although some expressions in that case would seem 
 to imply that recovery is to be limited to cases where the injury was ma- 
 licious, OB by beating the servant, no just ground is stated for thus nar- 
 rowing the rule, and the broad rule has been applied in other English 
 cases. See Martinez v. Gerber, 3 Scott, N. R. 306, cited and approved in 
 Alton V. Midland Railway, supra. The reasoning seems at least doubtful 
 which holds that an act may be a tort sufficient to support an action, there 
 being no contract between the parties, but if there be a contract, that the 
 act is to be referred to a breach of that contract, and so lose the incidents 
 which would attach to it had there been no contract. The doctrine that 
 the duty of a carrier to observe the best precautions in respect of the 
 safety of his passengers is imposed by the law in respect of all persons who 
 intrust themselves to him as passengers, and that this duty is absolute, and 
 exists independent of the contract, being founded upon the principle which 
 requires every person to manage his property and business so as not 
 to injure another, finds further support in the cases which hold that 
 although the carrier transport a person gratuitously, he may still be liable 
 
§§ 11-12.] PARTIES PLAINTIFF. lt> 
 
 (b) For Injury to Child. 
 
 § 12. For Loss of Service. — Like rules to those already 
 stated are applied in actions by a parent for injuries to his 
 child when brought for the loss of the child's services ; be- 
 cause in such cases the right of action is founded not on the 
 natural relation of parent and child, but on the assumed rela- 
 tion of master and servant, and the declaration in such a case 
 must aver the loss of service.^ The early cases held that to 
 support the declaration for loss of services it must appear 
 that the child was capable of performing acts of service ; ^ but 
 it is apprehended th9,t a less strict degree of proof may be 
 insisted on upon this point when the infant was nearly of 
 adult age at the time of the injury complained of ; and in the 
 United States there are cases which would seem to hold that 
 the duty of the parent to support the child, and the child's 
 duty of service, are correlative rights ; and that if the latter 
 duty is rendered impossible of performance by fault of a third 
 party, the right of action accrues for the past and prospective 
 earnings of the child during its minority, whether the child be 
 actually capable of service or not.^ But if the duty of support 
 does not exist, as between the mother and her infant child, 
 then the duty of service is not to be inferred, but must be 
 proved aflBrmatively, as in cases arising from an injury to a 
 servant. It has been held that a mother not being bound to 
 the duty of maintenance of her children is not entitled to the 
 correlative right of service, and the relation of mistress and 
 servant cannot be constituted between them only as it may be 
 
 for negligence whereby such person is injured ; (see § 117, post,") for it 
 cannot be said, in such a case, that liability arises out of any subsisting 
 contract resting upon a consideration. The doctrine of Alton v. Midland 
 Railway has been approved in Pennsylvania, see Fairmount & Arch St. 
 Railway ». StuUer, 54 Penn. St. 375, 379, but the expression of approval 
 in this case is obiter dictum, the plaintiff having been held incompetent to 
 sue as not having a sufficient interest to support her claim for alleged loss 
 of service. 
 
 » See Wotton ». Hunt, T. Ray. 259. 
 
 » Hall V. HoUander, 7 Dowl. «e R. 133. See Fores v. Wilson, Peake'a 
 N. P. C. 55; Jones v. Brown, Peake's N. P. C. 233, 1 Esp. 217. 
 
 ^ See Fairmount & Arch St. Railway v. Stutler, 54 Penn. St. 375; 
 Netherlands, &c. Co. v. Hollander, 20 U. S. App. 225. 
 
16 PEESONAL INJURIES. [CHAP, I. 
 
 constituted between strangers in blood, save that less evi- 
 dence, perhaps, may be sufficient to establish it.^ But, since 
 it is the tendency of the modern decisions to give to a widow, 
 left with minor children, who keeps her family together and 
 supports herself and them, with the aid of their services, much 
 the same control over them and responsibility for them as are 
 given to and imposed upon a father, it has been considered 
 that when a minor child lives with its mother who is a widow, 
 and the child is supported by the mother, and works for her 
 as one of the family, the mother is entitled to recover for 
 the loss of the services of the child, as such, as well as for 
 expenses reasonably incurred in the care and cure of the 
 child.2 
 
 § 13. For Expense in curing Child. — It appears to be uni- 
 formly held in the United States that although an infant child 
 be too young to render any service to his parent, yet if he be 
 injured by a wrong-doer the parent may recover, as the conse- 
 quence of such injury, his expenses necessarily incurred in the 
 care and cure of the child, he being legally liable for its sup- 
 port and maintenance.^ This rule was applied where the 
 child had been kicked and injured by the defendant's mare.^ 
 Where the infant, engaged in his father's service, was bitten 
 by a vicious dog belonging to the defendant, the court said : 
 " Even if the child was of very tender years, so as to be incapa- 
 ble of rendering any useful services, the action would doubt- 
 less lie if averments were made of consequential injury by 
 expenses caused in healing the wounds." * The mere incon- 
 
 ^ South V. Denniston, 2 Wright, 477; Leech v. Agnew, 7 Barr, 21; 
 Fairmount & Arch St. Railway v. Stutler, 54 Penn. St. 375. 
 
 " Horgan v. Pacific Mills, 158 Mass., 402. 
 
 » Dennis ti. Clark, 2 Cush. 347. 
 
 * Burden v. Bamett, 7 Ala. 169. The rule on this subject does not 
 seem to be settled definitely in England. In Wotton v. Hunt, T. Ray. 
 259 (1679), a verdict in favor of a parent seeking to recover against the 
 defendant, who had carelessly injured the plaintiS's- infant son, was sup- 
 ported; but the case is criticised by Sir Thomas Raymond, "it not 
 being laid per quod servitium amisit ; but the child himself ought to have 
 brought the action." In Hall v. Hollander, 7 DowL & Ry. 133, i Barn. 
 & Cr. 660 (1825), the declaration alleged both loss of services and the 
 expenditure of large sums of money in curing the infant. The proof 
 
§§ 12-14.] PARTIES PLAINTIFF. 17 
 
 venience and trouble caBsed to others of the plaintiff's family 
 by the injury to the child are not grounds for damages.^ 
 
 (c) ^or Injury to Wife. 
 
 § 14. Lies for Loss of Services and Society. — So it is every- 
 where held that a husband may maintain an action for loss 
 which he has sustained by reason of a personal injury negli- 
 gently or wilfully inflicted upon his wife. The declaration 
 generally sets forth the husband's loss of his wife's society, 
 or of her services, or both, and also the expenses necessarily 
 incurred by him in consequence of the injury inflicted upon 
 her. And although the husband be living at a distance from 
 his wife, there is no doubt that he may recover in this form 
 of action any sums of money which he has been obliged by 
 law to pay for care and attendance upon the wife during 
 her sickness.^ That an action for the husband's loss of the 
 society of his wife might be maintained by him without join- 
 ing the wife as a party seems first to have been held in an 
 early case in which it was considered that " in an action 
 brought for the battery of the wife she need not be joined, 
 as the loss was only of her company, which pertained alone 
 to the husband, for which he should have his suit, as the 
 
 failed as to tlie first allegation ; and it appeared that the infant might 
 have been cured without expense to the father. It was held that the 
 action as brought could not be maintained ; but it was intimated that a 
 declaration might be framed with averments that the father, being obliged 
 to maintain the child, and having no means of {»'oviding medical assist- 
 ance, had necessarily incurred expense in and about the child's cure, so 
 as to enable him to recover. But in Grinnell v. WeDa, 7 M. & G. 1033, 
 8 Scott, N. R. 741 (1844), Tindal, C. J., suggested doubts whether such an 
 action could be maintained. The right of the plaintiff to recover in such 
 cases being founded upon his obligation to support his infant child under 
 all circumstances, which obligation is recognized by the American law, 
 the doubt upon the subject in England would seem to arise out of the 
 doubt which exists there as to the parent's obligation under the common 
 law. See the subject elaborately discussed by Metcalf, J., in Dennis v. 
 Clark, 2 Cosh. 347, 353. 
 
 1 Woeckner p. Erie EL Motor Co., 182 Penn. St. 182. 
 
 * Dennis v. Clark, 2 Cnsh. 347. As to the effect of oontribntory neg- 
 ligence to defeat the husband's action, see § 108, posU 
 
18 PERSONAL INJURIES. [CHAP. I. 
 
 master shall have for the loss of his servant's service." ^ It 
 is clear that, at common law, damages for injuries sustained 
 by the wife and for the husband's loss of the services and 
 society of the wife cannot be recovered in the same action, 
 since, although the respective rights of action arise out of 
 the same injury, the damages are distinct.^ The weight of 
 authority is in favor of the rule that at common law an 
 action by a husband for the loss of his wife, who has been 
 killed by the negligence of a third party, can only be main- 
 tained where some time intervenes between the injury and 
 the death, during which the husband may have suffered the 
 loss of her services and society, and incurred expense and 
 endured mental distress on her account.^ 
 
 SECTION III. 
 
 STATUTORY ACTIONS IN BEHALF OP DECEASED PERSONS OR THEIR 
 REPRESENTATIVES. 
 
 § 15. No Action for Death at Common Iiaw. — At common 
 law, the death of a human being could not be complained of 
 as an injury in a civil court, and, therefore, could not be 
 made the ground of an action for damages.* The modern 
 authorities agree that actions for injuries to the person do 
 not survive unless by the force of a statutory provision,^ and 
 
 ^ Guy V. Livesey, Cro. Jac. 501 ; and see Hyde v. Scyssor, Cro. Jac. 
 538 ; Young v. Pridel, Cro. Jao. 89. 
 
 ^ Fink t'. Campbell, 37 U. S. App. 462. 
 
 » Green v. Hudson River R. R., 28 Barb. 9, 2 Keyes, 294. Where the 
 injury to the wife caused her miscarriage, it was held error to permit 
 the jury to allow damages for loss of ofispring. Butler v. Manhattan 
 K. Rt, 143 N. Y. 417. 
 
 * Per Lord EUenborough, in Baker v. Bolton, 1 Camp. 493. 
 
 6 Safford ». Drew, 3 Duer, 627 ; Quinn v. Moore, 15 N. Y. 436; Green 
 V. Hudson River R. R., 28 Barb. 9; Bnel v. New York Central R. R., 31 
 N. Y. 314; Miller v. Umberhower, 10 S. & R. 31 ; Eden ». Lexington & 
 Frankfort R. R., 14 B. Mon. 204 ; Worley v. Cincinnati, Hamilton & 
 Dayton R. R., 1 Handy (Ohio), 481 ; Carey v. Berkshire R. R., Skinner 
 V. Housatonic B. R., 1 Cush. 475; Indianapolis & St. Louis R. R. v. 
 
§§ 14-15.] PARTIES PLAINTIFF. 19 
 
 the weight of authority is in favor of the rule that actions 
 brought to recover damages accrued to the plaintiff by reason 
 of the wrongful killing of a third person, after the death of 
 such person, as for the loss of services or society, cannot be 
 supported. Thus where the action was brought by a husband 
 for injuries received by his wife by the fault of the defendant, 
 by reason of which she died a month thereafter, the declara- 
 tion alleged that " by means of the premises the plaintiff had 
 wholly lost and been deprived of the comfort, fellowship, and 
 assistance of his wife, and had from thence suffered great 
 grief, vexation, and anguish of mind." It was held that the 
 jury could consider only, as ground of damage, the loss to 
 the plaintiff of his wife's society, and the distress of mind 
 he had suffered on her account from the time of the accident 
 to the time of her death.^ And this doctrine was affirmed 
 in a later case In which it was held that a master could not 
 maintain an action, whether for loss of services or for funeral 
 expenses, of a servant who had been instantly killed by the 
 defendant's fault.^ 
 
 Stout, 53 Ind. 143 ; Dennick r. Central R. R. of New Jersey, 103 U. S. 
 11 ; Steamer Harrisburg v. Rickards, 119 U. S. 199. Where the action 
 is for a death occurring in another State, the presumption is that the 
 common law on the subject prevailed in such other State and the right 
 to recover will be determined by that law. Jackson v. Pitts. C. C. & 
 St. L. R. R., 140 Ind. 241. It is held that where a husband brings suit 
 for injuries inflicted on his wife, and dies pending the suit, the action, 
 so far as it is for the loss of the services of the wife, and for expenses 
 incurred by reason of her injury, survives to the personal representatives 
 of the husband, as these are a pecuniary loss diminishing his estate, but 
 that the right to damages for the loss of the society of the wife does not 
 survive. Cregin v. Brooklyn Crosstown R. R., 83 N. Y. 595. So in 
 James v. Christy, 18 Mo. 162, it was held that an action by a parent for 
 damages for the loss of his son, who was killed by the negligence of the 
 defendant, did not abate by the death of the plaintiff, but survived to his 
 personal representative; but that the right of action would be limited to 
 the actual damage occasioned to the plaintifE by the loss of the services 
 of his son. 
 
 1 Baker v. Bolton, 1 Camp. 483. 
 
 2 Osborne v. Gillett, L. R. 8 Exch. 88, by Kelly, C. B., and Piggott, 
 B., Bramwell, B., dissenting. See cases cited, supra, and § 16, post. " To 
 a certain extent the doctrine expressed in the maxim ^actio personalis 
 moritur cum persona^ has been qualified. Under the Statute of Edward 
 
20 PERSONAL INJUEIES. [CHAP. I. 
 
 § 16. Contrary Authority. — Whether or not the reason of the 
 general rule stated may seem to include actions brought to 
 recover damages arising from the death, by the defendant's 
 fault, of a third person, the rule that such actions are to be so 
 included seems to be settled by the weight of authority. But 
 there are important cases which hold a contrary view. In 
 Michigan, it was considered that the general rule had no ap- 
 plication to an action brought by a master for the loss of the 
 services of his servant, or by a husband for the loss of the ser- 
 vices of his wife ; since, in these cases, the right of action 
 could not have become vested in the servant, or the wife, re- 
 spectively, during the life of either of them, and so could not 
 have been lost by the death, so that there was no question of 
 survivorship. It was further considered that the damages 
 assessed in such a case must be limited to the plaintiff's actual 
 loss of services [or society], and to expense incurred by the 
 plaintiff in the attempted cure of the injured persons ; and that 
 the mental sufferings, endured either by the deceased persons 
 or the plaintiff, were not to be considered in the estimate of 
 damages.^ So it was held by Dillon, J., that where a servant 
 was killed instantly by the wrongful act of the defendant, the 
 master might recover for the loss of service ; and, further, if 
 death did not immediately follow the injury, that the master 
 was not limited in damages to the interval between the injury 
 and the death. The cases holding the contrary view are fully 
 reviewed and said to rest upon the nisi prius decision, in 1808, 
 
 m. it has in many cases been held that \rbere the cause of action, -what- 
 ever its form may be, is in respect of a tortious impairment of the per- 
 sonal estate, such action may be maintained by the personal representative. 
 But none of the authorities go so far as to say that, where the cause of 
 action is in substance an injury to the person, the personal representative 
 can maintain an action merely because the person so injured incurred in 
 ' his life ti{ne some expenditure of money in consequence of the personal 
 injury." Per Denman, J., in Pulling v. Great Eastern Railway, 9 Q. B. D. 
 110. While the English common law does not permit the action after 
 death, the civil law and the Scotch law permit it, and damages may be 
 awarded to the relations of the person killed as a "solatium." See 
 Erskine's Institutes (by Ivory), 592 n. 13 ; Bell's Principles of the Law of 
 Scotland, 4th ed. 749 ; Dictionary of Decisions, vol. 31, p. 13S03. 
 1 Hyatt B. Adams^ 16 Mich. 180, by Christianey and Campbell, JJ. 
 
§§ 15-16.] PARTIES PLAINTIFF. 21 
 
 by Lord Ellenborougli in Baker v. Bolton,^ and the court said : 
 " In view of the tenor of the cases, some of which, however, 
 are not well considered, ... it requires some courage to dis- 
 regard them ; but as the rule they assert is incapable of vindi- 
 cation, and cannot be shown to be deeply rooted in the common 
 law, my judgment is that I am free to decide the rights of the 
 parties without applying it." ^ 
 
 1 See § 15, ante. 
 
 " Stillivan v. Union Pacific R. R., 3 Dillon, 334 (1874). This case was 
 ovetToled, after careful consideration, in Steamer Harrisburg v. Rickards, 
 119 U. S. 199, and see SuUiran v. Union Pacific R. R., 3 McCrary, 801 
 (1880), in which case McCrary, J., held that in the absence of a statute 
 damages cannot be recovered by a father from a railroad company for 
 causing the death of a minor son. In New York, in the comparatively 
 early case of Ford v. Monroe, 20 Wend. 210, the plaintiff was permitted 
 to recover damages for the defendant's negligence in driving a carriage 
 over the plaintiff's son, an infant ten years old, thereby killing him. One 
 ground of damage relied on was the loss of the son's service, and the jury 
 was instructed that the plaintiff might recover therefor from the time the 
 son was killed to the time he would have become of age, had he lived. 
 Neither at the trial, nor on the motion for a new trial when argned in 
 bank, was the question raised as to the legal right of the plaintifE to re- 
 cover other damages in the premises. In Allsop v. Allsop, 5 H. & N. 
 534, 338, Pollock, C. B., says, that the case of Ford v. Monroe is opposed 
 to the universal practice of the law in England. But his criticism is 
 founded upon the objection that the case gives " fanciful or remote dam- 
 ages " such as do not "fairly and naturally result from the wrongful act 
 itself." The Chief Baron does not consider directly the question of the 
 survival of the action involved in Ford e. Monroe. But the latter case is 
 distinctly overruled in the leading case of Green v. Hudson River R. R., 28 
 Barb. 9, affirmed 2 Eeyes, 294, a case which expresses the present 
 law in New York, and in which the whole question is exhaustively 
 considered and the broad application of the rule stated in the text 
 adopted. See however oKter dicta contained in Pack »; Mayor of New 
 York, 3 N. Y. 489, and Lynch v. Davis, 12 How. Pr. 323, in which it 
 would seem that the doctrine of Ford v. Monroe was approved. In Cross 
 B. Guthery, 2 Root (Conn.), 90 (1794), it was held in a brief opinion tha€ 
 an action for damages would lie at common law in favor of a husband as 
 against a surgeon for unskilfully performing a surgical operation upon 
 the wife, of which she died in about three hours, but this case is ignored 
 and the general rule held in Gioodsell v. Hartford & New Haven R. R., 33 
 Conn. 51. In Plummer v. Webb, 1 Ware (Maine), 75, it was held that 
 an action, being brought before its death for the loss of the services of a 
 child, did not abate by the death of the child, but survived to the parent. 
 
22 PERSONAL INJURIES. [CHAP. I. 
 
 (a) Survival of Actions. 
 
 § 17. Provided for by Statute. — Statutory provisions for the 
 survival of actions for personal injuries now form a part of 
 the law of most if not all of the States. In Massachusetts, it 
 was early provided that " the action of trespass on the case, for 
 damage to the person, shall hereafter survive, so that in the 
 event of the death of any person entitled to bring such action, 
 or liable thereto, the same may be prosecuted or defended, by 
 or against his executor or administrator, in the same manner 
 as if he were living." ^ Later, it was provided that " in addi- 
 tion to the actions which survive by the common law, the 
 following shall also survive ; actions ... of tort for assault, 
 battery, imprisonment, or other damage to the person, . . . 
 or for damages to real or personal estate." ^ Under these 
 statutes, it is held that an action for injury to the person will 
 survive as well when the wrong is occasioned by the defend- 
 ant's fraud as when it is done by force, since in such cases 
 the action is not for the deceit alone but for the injury caused 
 by the deceit. The nature of the damage sued for, not the 
 nature of its cause, determines whether the action survives. 
 So it was held under the statute above cited, that an action 
 for deceit in letting a dwelling-house infected \iith diphtheria 
 which caused injury to the person of the plaintiff survived to 
 the plaintiff's representative.^ 
 
 The rule as stated in the text (§ 15, ante) is held in admiralty, see Steamer 
 Harrisburg v. Rickards, 119 U. S. 199, where the question is discussed in 
 an elaborate opinion, and with a full citation of the authorities, by Waite, 
 C. J. To the same point, see The Alaska, 130 U. S. 201, but compare 
 Holmes ». O. & C. Railway, 5 Fed. Rep. 75. 
 
 1 St. 1842, c. 89, § 1. 
 
 * Pub. Sts. c. 165, § 1. In Pennsylvania, nnder P. L. 674, if one who 
 has begun an action for personal injuries dies before the case is called for 
 trial, his executor or administrator may be substituted as plaintiff. Birch 
 V. Pittsburgh, C. C. & St. L. R. R., 165 Penn. St. 339. 
 
 ' Cutter V. Hamlen, 147 Mass. 471, commenting on Cutting v. Tower, 
 14 Gray, 183. In Michigan, under 3 How. St., § 7397, which provides 
 for the survival of actions for negligent injuries to the person, an action 
 against a physician for negligent malpractice survives as against his ex- 
 ecutors. Norris v. Circuit Judge, 100 Mich. 256. 
 
§§ 16-19.] PARTIES PLAINTIFF. 23 
 
 § 18. No Action unless Party svirvives the Injury. — Since 
 the statute supposes the person deceased to have been once 
 entitled to an action for the injury which caused his death 
 and either to have commenced the action and subsequently 
 died, or, being entitled to bring it, to have died before exer- 
 cising his right ; it follows that his personal representative 
 cannot maintain the action when the death of the injured 
 person was instantaneous. In other words, the cause of 
 action must accrue during the lifetime of the injured person, 
 and if there was no time during his lifetime when the action 
 could accrue, it cannot be maintained. And in the absence 
 of evidence that the injured person survived the accident, it is 
 to be held, as matter of law, that the action cannot be 
 suppoi"ted.^ Where a woman between four and five months 
 advanced in pregnancy, by reason of falling upon a defec- 
 tive highway, was delivered of a child which survived its 
 premature birth only a few minutes, it was held that such 
 child was not a " person," within the meaning of a statute, 
 for whose loss of life an action might be maintained against 
 a town by his administrator.* 
 
 § 19. Need not be Conscious nor live more than an appre- 
 ciable Length of Time. — The mere right of action does not 
 depend upon the degree of consciousness, intelligence, or 
 mental capacity remaining in the injured person after the 
 injury is received.^ The sole question is whether the person 
 lived after the act was done which constitutes the cause of 
 action. The law contemplates a precise moment of time 
 which separates life from death, and the right may accrue by 
 operation of law to one in extremis when it requires no act, 
 or assent, or even consciousness on his part.* Nor is it ma- 
 terial that it is physically impossible for the injured person 
 
 1 Kearney r. Bgston & Worcester R. R., Mann v. Same, 9 Cash. 108 ; 
 Hansford ». Paine, 11 Bush, 380; Hodnett v. Boston & Albany R. R., 
 156 Mass. 86. 
 
 2 Dietrich v. Northampton, 138 Mass. 14. 
 
 8 Hollenbeck v. Berkshire R. R., 9 Cush. 478; Mulchahey ». Washburn 
 Car- Wheel Co., 145 Mass. 281. 
 
 * Bancroft v. Boston & Worcester R. B., 11 Allen, 34. 
 
24 PEBSONAL INJUEIE8. [CHAP. 1. 
 
 during the time he surrives to bring an action for the injury. 
 Thus where the person received an injury which caused him to 
 become immediately insensible and he so continued till his 
 death, which occurred in fifteen minutes, it -was held that the 
 action survived to his administrator. Where the only evidence 
 that the intestate survived the accident was the fact that there 
 appeared certain spasmodic muscular contractions of the body, 
 such as often attend violent death, it was held that there was no 
 evidence, sufi&cient to be submitted to the jury, that the intes- 
 tate survived the injury .^ 
 
 § 20. Rule of Damages. — In these cases, as the death itself 
 does not furnish the ground of , action, it is evident that the 
 action is only to be maintained for such damages as were sus- 
 tained by the injured person during the time that he survived,^ 
 as for expense and loss incurred before death by reason of 
 the accident, and also for the bodily pain and mental suffer- 
 ing of the deceased person. But it is for the plaintiff to show 
 that the intestate suffered in body or mind, and where the in- 
 jured person becomes unconscious at the instant of receiving 
 the injury and so remains until death, there is no ground for 
 the recovery of damages for mental or, it seems, for physical 
 suffering.^ It is held that damages for death caused by neg- 
 ligence are not to be reduced by the amount of insurance on 
 the life of the deceased.* 
 
 (b) Action for Death. 
 
 § 21. Created by Statute. Nature of. — The Statutes already 
 referx'ed to provide for the survival of the common-law action 
 to be prosecuted by the personal representative of the person 
 whose injury, received through the negligence of the defend- 
 ant, has caused his death, and who, had he survived, would 
 
 * Kearney v. Boston & Worcester K. R., 9 Cush. 108. 
 
 2 Bancroft v. Boston & Worcester R. R., 11 Allen, 34; Goodsell v. 
 Hartford & N, H. K. R., 33 Conn. 51; McElligott v. Randolph, 61 Conn. 
 157. 
 
 " Kennedy v. Standard Sugar Refinery, 125 Mass. 90 ; Moran v. Hol- 
 lings, 125 Mass. 93; Earl v. Tupper, 45 Vt. 275 ; Muldowney v. Illinois 
 Central R. R., 36 Iowa, 482. The rule may be different in those juris- 
 dictions where exemplary damages are allowed. 
 
 * Coulter i;. Pine Township, 164 Penn. St. 543. 
 
§§ 19-21.] PARTIES PLAINTIFF. 25 
 
 have been entitled to prosecnte the action in his own behalf. 
 But the statute law has created another class of actions, to be 
 prosecuted by the personal representative of the deceased in 
 behalf of, and to recover the damages occasioned to, the rela- 
 tions of the deceased person by reason of his death. Such 
 actions do not depend upon the survival of the deceased per- 
 son after the injury,^ and are governed by a rule of damages^ 
 different from that which obtains in actions which survive. It 
 is said that " these statutes have introduced a principle wholly 
 unknown to the common law, namely, that the value of a 
 man's life to his wife or next of kin constitutes, with a certain 
 limitation as to amount, a part of his estate, which he leaves 
 behind him to be administered by his personal representa- 
 tives," and " though the action can be maintained only in the 
 cases in which it could have been brought by the deceased if 
 he had survived, the damages nevertheless are given upon 
 different principles and for different causes." ^ And it is held, 
 apparently with sound reason, that when the death occurs 
 two causes of action may arise, one in favor of the decedent 
 under the statute providing for the survival of such actions, 
 the other founded on his death under the statute providing 
 for such actions, and being for the benefit of the relations 
 named in the statute. Both actions may be prosecuted by 
 his personal representatives, but the damages are given for 
 different purposes.* 
 
 1 Price V. Kichmond & D. R. R. 33 S. C. 556 ; Reed v. Northeastern 
 R. R., 37 S. C. 42. 
 
 « Per Denio, J., in Whitford v. Panama R. R., 23 N. T. 468. 
 
 » Needham v. Grand Trunk R. R., 38 Vt. 294; Bowes v. Boston, 155 
 Mass. 344. As an action brought for personal injuries suffered by the 
 plaintiff at common law abates by his death, it foUows that the pendency 
 of such an action will not defeat an action brought, under a statute, by 
 the personal representatives of the plaintiff, for his death. Indianapolis 
 & St. Louis R. R. V. Stout;, 53 Ind. 143. It seems that where the statute 
 provides that the amount of the fine, or of the damages assessed in a civil 
 action, " shall go to " the heirs, or other parties named in the statute, the 
 right of action may be assigned, pendente lite, by the parties having the 
 beneficial interest in it, and such assignment will not defeat the action. 
 State V. Boston & Maine R. R. , 58 N. H. 510. A statute empowering 
 married women to hold and transfer property independently, and to carry 
 on a separate business, does not abrogate the right of a husband to m^- 
 
26 PERSONAL INJURIES. [CHAP. I. 
 
 § 22. General Form of Statute. — It is provided by the stat- 
 ute 9 & 10 Victoria, c. 93, sec. 1, (1849), « Whensoever the 
 death of a person shall be caused by wrongful act, neglect, 
 or default, and the act, neglect, or default is such as would (if 
 death had not ensued) have entitled the party injured to main- 
 tain an action, and recover damages in respect thereof ; then 
 and in every such case the person who would have been liable 
 if death had not ensued shall be liable to an action for dam- 
 ages, notwithstanding the death of the person injured, and 
 although the death shall have been caused under such cir- 
 cumstances as amounts in law to felony." The second section 
 of the act provides that " every action shall be for the benefit 
 of the wife, husband, parent, and child of the person whose 
 death shall have been so caused, and shall be brought by and 
 in the name of the executor or administrator of the person 
 deceased ; and in every such action the jury may give such 
 damages as they think proportioned to the injury resulting 
 from such death to the parties respectively for whose benefit 
 such action shall be brought ; and the amount so recovered, 
 after deducting the cost not recovered from the defendant, shall 
 be divided among the before-mentioned parties, in such shares 
 as the jury by their verdict shall find and direct." The sub- 
 stance of this statute has been enacted in the legislation of each 
 of the United States, and is applied to the District of Columbia. 
 In some States, the statutes create a liability in certain special 
 cases only as against persons or corporations by whose fault 
 the death sued for has occurred. Thus in Connecticut it is pro- 
 vided " that if the life of any person being a passenger, or 
 crossing upon a public highway in the exercise of reasonable 
 care, shall be lost by reason of the negligence or carelessness 
 of any railroad company, ... or by the unfitness or negligence 
 
 tain the statutory action to recover damages for the death of his wife oc- 
 casioned by the negligence of another. St. Louis, &c. K. K. v. Henson, 
 19 U. S. App. 169. It is held that, a statute giving a right of action for 
 death to the " heirs or personal representatives " of the deceased does not 
 limit the damages to the " community relation," in which the husband is 
 the only heir of the wife ; but that the word " heirs " is used in its common- 
 law sense, and intends those who are capable of inheriting from the de- 
 ceased person generally, without reference to the distribution of commu- 
 nity property. Kedfield v. Oakland, &c. St. Railway, 110 Cal. 277. 
 
§§ 21-22.] PARTIES PLAINTIFF. 27 
 
 or carelessness of their servants or agents, such company shall 
 be liable to pay damages not exceeding $5,000 nor less than 
 $1,000, to the use of the executor or administrator of the do- 
 ceased person, to be recovered by such executor or administra- 
 tor in an action on the case . . . for the benefit of the husband 
 or widow and heirs of the deceased person, one moiety thereof 
 to go to the husband or widow and the other to the children of 
 the deceased, but if there shall be no children, the whole to 
 the husband or widow, and if no husband or widow to the 
 heirs, according to the law regulating the distribution of per- 
 sonal estate." ^ Under a statute giving personal representa- 
 
 1 Rev. Sts. Conn. 1866, p. 202. See also Pub. Sts. Mass. c. 112, § 212; 
 Acts of 1887, c. 270, §§ 2, 3, which creates a special liability as agaiust 
 employers. In Kew York, the statute provides that the action for death 
 <' shall be brought by and in the name of the personal representative of 
 such deceased person, and the amount recovered in every such action shall 
 be for the exclusive benefit of the widow and next of kin of such deceased 
 person, and shall be distributed to such widow and next of kin in the pro- 
 portion provided by law in relation to the distribution of personal property 
 left by persons dying intestate ; and in every such action the jury may 
 give such damages as they deem a fair and just compensation, not ex- 
 ceeding $5,000, with reference to the pecuniary injuries resulting from 
 such death, to the wife and next of kin of such deceased person," to be 
 distributed among them under the statute governing the distribution of 
 personal property. In Illinois, the statute, with a few immaterial 
 changes in phraseology, is like the New York statute. Under this 
 statute it is held in New York that the action may be maintained by the 
 administrator of an infant who has no wife or family dependent upon 
 him for support. Quin ». Moore, 15 N. Y. 4.32. In Vermont, the 
 action for death is similar to that provided for by the New York statute 
 in that it provides that the damages shall be distributed to the wife and 
 next of kin of the deceased person as under the statute of distributions. 
 In Indiana, it is provided that " where the death of one is caused by the 
 wrongful act or omission of another, the personal representatives of the 
 former may maintain an action therefore agaiust the latter, if the former 
 might have maintained an action had he lived for . . . the same act or 
 omission. . . . The damages cannot exceed $5,000, and must enure to 
 the exclusive benefit of the widow and children, if any, or next of kin, 
 to be distributed in the same manner as personal property." The right 
 of action in that State thus seems to be made dependent upon the survi- 
 val of the person injured after the injury (see § 18, ante), but it is brought 
 as an independent action for the benefit of surviving persons named. 
 Under this statute, it was held in Long v. Morrison, 14 Ind. 395, that 
 the action being for loss of service by reason of malpractice which had 
 
28 PERSONAL INJUBIE3. [CHAP. I. 
 
 tives a right of action for benefit of the next of kin, a libel in 
 personam may be maintained for damages for death caused by 
 a negligent collision on navigable waters within the State.^ 
 
 § 23. Hule of Damages. — Under the statutes already con- 
 sidered, it is evident that the damages are to be measured by 
 the pecuniary loss suffered by the relations of the deceased 
 person for whose benefit the action is brought, and that the 
 damages suffered by the deceased person himself are not to 
 
 resalted in the death of the plaintiffs wife, damages were to be assessed 
 as from the act of malpractice to the death of the wife. The case was 
 complicated by the consideration that the wife, had she survived, could 
 not have brought action but by joining her husband, and it was held that 
 the action as to the wife survived (notwithstanding that the statute pre- 
 scribes the distribution of any damages recovered), and that, properly, 
 the administrator of the wife should be joined with the husband as party 
 plaintiff. But it seems to be well settled, that at common law the wife 
 need not be joined as plaintiff in an action brought by her husband for 
 the loss of her services and society. In the same State it is provided by 
 the Code, § 27, that " a father, or in case of his death or desertion of his 
 family, the mother may maintain an action for the injury or death of a 
 child; and a guardian for the injury or death of his ward. . . . The 
 damages shall enure to the benefit of the ward." See §§ 12, 13, ante. 
 See Fairmount & Arch St. Railway v. Stutler, 54 Penn. St. 375. In New 
 Jersey, the amount of damages is not limited, the statute providing that 
 the " action shall be brought by and in the name of the personal repre- 
 sentative of such deceased person, and the amount recovered in every 
 such action shall be for the exclusive benefit of the widow and next of 
 kin of such deceased person, and shall be distributed to such widow and 
 next of kin in the proportions provided by law in relation to the distri- 
 bution of personal property left by persons dying intestate, and in every 
 such action the jury may give such damages as they shall deem fair and 
 just, with reference to the pecuniary injury resulting from such death 
 to the wife and next of kin of such deceased person." See § 26, post. 
 In Kentucky, the statute provides that " if the life of any person ... is 
 lost or destroyed by the wilful neglect of another person or persons, . . . 
 then the widow, heir, or personal representatives of the deceased shall 
 have the right to sue such person or persons . . , and recover punitive 
 damages for the loss or destruction of the life aforesaid." A statute 
 giving foreign administrators an action for the recovery of " debts due 
 their decedents " (Gen. St. Ky. c. 39, art. 2, § 43) confers no capacity to 
 sue for the wrongful death of such decedent, although such power has 
 been given to domestic administrators. Maysville Street K. K., &c. p. 
 Marion, 59 Fed. Rep. 91 ; 8 C. C. A. 21. 
 I The Transfer, No. 4, 9 C. C. A. 521. 
 
§§ 22-23.] PARTIBB PLAINTIFF. 29 
 
 be taken into account,^ nor are damages recoTerable for the 
 loss of the society of the deceased person.^ The declaration 
 or complaint should aver that those persons are in existence 
 whom the statute names as to be benefited by the action, and 
 that these have sustained a pecuniary loss by reason of the 
 death of such person.* It was held that in order to support 
 the action under the English statute, 9 & 10 Vict. o. 93, for 
 damages arising from death by negligence, such damages must 
 be special ; and that the action could not be supported to re- 
 cover merely nominal damages ; and it was further held that a 
 verdict assessing as damages the funeral expenses and medi- 
 cal attendance of a child, paid by the father and administrator 
 of the child, who brought suit, could not be supported. The 
 statute provides, § 2, that in such actions " the jury may give 
 such damages as they may think proportioned to tbe injury 
 resulting from such death to the parties respectively for 
 whom and for whose benefit the action shall be brought." * 
 
 1 Needham v. Grand Trunk Railway, 38 Vi 294 j Telfer v. Northern 
 B. B,., 30 N. J. L. 198; Donaldson v. Mississippi & Missouri R. R., 18 
 Iowa, 280; Ohio & Mississippi R. R. r. TindaU, 13 Md. 366; Chicago 
 V. Major, 18 111. 349. 
 
 ' Pym V. Great Northern R. R., 4 B. & S. 396 ; TiUey v. New York 
 Central & H. R. R. R., 24 N. Y. 471; Telfer v. Northern R. R., 30 
 N. J. L. 198; Caldwell v. Brown, 53 Penn. St. 453. 
 
 ' Safford v. Drew, 3 Duer, 627 ; Blake v. Midland Counties Railway, 
 21 L. J. Q. B. 233. Applying the principles stated in the text, it would 
 seem that exemplary damages are not to be recovered in the action for 
 death in those jurisdictions which admit such damages in other cases. 
 See Fennsylvannia R. R. v. Henderson, 51 Fenn. St. 316 ; Conant v. 
 Griffin, 48 111. 410; Kansas Pacific R. R. v. Miller, 2 Col. (T), 442. But 
 in some States, as in Kentucky, California, and Texas, the recovery of 
 such damages is provided for by the statute. See § 22, n. 
 
 * Dalton o. Southeastern Railway, 27 L. J. (n. a.) C. P. 227; Boulter r. 
 Webster, 11 L. T. (n. s.) 598. But see Cleveland & Pittsburg R. R. v. 
 Rowan, 66 Penn. St. 393. Under a statute providing that the damages 
 to be recovered shall not exceed a certain amount, it is error to charge 
 the jury that if they find for the plaintiff they shall assess damages in such 
 sum. Schleireth v. Missouri Pacific R. R., 96 Mo. 509, and see Kingu. 
 Missouri Pacific R. R., 98 Mo. 235. Only nominal damages can be re- 
 covered for the death of a brother, incapable of supporting himself by 
 reason of habitual drunkemtess, under a statute providing that the next 
 of kin may recover for pecuniary injuries resulting from death by negli- 
 gence. North Chicago St. R. R. v. Brodie, 156 BL 317. 
 
30 PERSONAL INJUBIE8. [CHAP. I. 
 
 § 24. Quasi Penal Actions. — In some of the States the stat- 
 utory action against a person or corporation for negligently 
 causing the death of another partakes of the nature of a 
 penal action. Thus it is provided in Massachusetts that " if 
 by reason of the negligence or carelessness of a corporation 
 operating a railroad, ... or of the unfitness or gross negli- 
 gence of its servants or agents while engaged in its business, 
 the life of a passenger, or of a person being in the exercise of 
 due diligence, and not a passenger or in the employment of 
 such corporation, is lost," — the corporation shall " be liable 
 in damages, not exceeding five thousand nor less than five 
 hundred dollars, to be assessed with reference to the degree 
 of culpability of the corporation or of its servants or agents, 
 and to be recovered in an action of tort, commenced within 
 one year from the injury causing the death, by the executor 
 or administrator of the deceased person, for the use of " his 
 widow, children, or next of kin.^ This and similar statutes 
 provide for the recovery by an action, civil in form, of a penalty 
 which under the provisions of former statutes might be re- 
 covered under a criminal indictment, and in Massachusetts, the 
 executor has the option of selecting either form of proceeding. 
 It is apprehended that a consideration of the difiiculties com- 
 monly attending the enforcement of the criminal proceeding 
 led the legislature to provide a simpler means of enforcing 
 the statutory penalty. Where, as in Massachusetts, the words 
 of the statute defining the civil and the criminal liability are 
 the same,^ like rules of interpretation are applied.' Thus, in 
 either case, the penalty is to be greater or smaller according 
 to the degree of blame which attaches to the defendant, and 
 not according to the loss sustained by the widow or heirs of 
 the deceased.* And in either proceeding the necessity of 
 proving due care on the part of the deceased person is dis- 
 pensed with.^ 
 
 1 Pub. Sts. Mass. c. 112, § 212. 
 
 ^ Ibid. » See § 25. 
 
 * Carey v. Berkshire R. R., 1 Cush. 475; Commonwealth v. Eastern 
 R. R., 6 Gray, 473; Commonwealth v. Boston & Albany R. R., 121 
 Mass. 36. 
 
 ' See § 139, pott. 
 
§§ 24-26.] PARTIES PLAINTIFF. 31 
 
 § 25. Criminal Indictment. — In some jurisdictions, the rep- 
 resentatives of the deceased person have the option to pur- 
 sue either a civil or a criminal remedy.^ In others, the remedy 
 by indictment may be pursued against certain persons only, as 
 against the agents of the corporation the legal negligence of 
 which has caused the accident. Thus in New York, the Re- 
 vised Statutes,^ after providing for an action for the benefit of 
 the widow and next of kin killed by the wrongful act of any 
 person or corporation, in cases in which the deceased, if he 
 had survived, would have been entitled to an action, further 
 provide that " every agent, engineer, conductor, or other per- 
 son in the employ of such company, or persons through whose 
 wrongful act, neglect, or default, the death of a person shall 
 have been caused as aforesaid, shall be liable to be indicted 
 therefor," and, upon conviction, may be punished by fine or 
 imprisonment, or both. Where proceedings are had under a 
 criminal indictment, the action is generally treated as a civil 
 action in its principal features, and like rules of evidence are 
 to be applied to the trial of it.* 
 
 (c) Venue of the Statutory Action for Death. 
 
 § 26. Generally. — The weight of authority seems to support 
 the doctrine that the statutes creating right of action for 
 damages arising by reason of the death of a person, caused 
 by the negligent act of the defendant, have no application in 
 any foreign jurisdiction unless a similar right has been created 
 in that jurisdiction. It is generally admitted that the com- 
 mon law did not impute the death of any person as a civil 
 injury to another,* and so it is considered that these statutes 
 create a right unknown to the common law. Thus the court, 
 commenting upon the English statute,^ distinguished the action 
 
 1 See § 24. " 5th ed. vol iii. p. 590. 
 
 ^ State V. Manchester & Lawrence R. R., 52 N. H. 528, and see State 
 V. Grand Trunk RaDway, 58 Maine, 176. The remedy by indictment, 
 against a railroad, in Maine, is abrogated by St. 1891, c. 124. See State 
 V. Maine Central R. R., 90 Maine, 267 ; Commonwealth v. Fitchbnrg 
 R. R., 10 Allen, 189 ; Commonwealth v. Worcester R. R., 101 Mass. 201. 
 
 * See § 15, ante. 
 
 « 9 & 10 Vict. c. 93; see § 22, ante. 
 
§2 PERSONAL INJURIES. [CHAP. I. 
 
 created bj the statute from that which, at the common law, 
 might have accrued to the injured person in his own behalf, 
 had he survived the accident, and said: "It will be evident 
 that this act does not transfer this right of action to his repre- 
 sentative, but gives to his representative a totally new right 
 of action on different principles. The measure of damage is 
 not the loss or sufferings of the deceased, but the injury re- 
 sulting from his death to his family." ^ And so it is said that 
 in an action founded upon tort it is contrary to principle and 
 authority to hold that an English court will enforce a foreign 
 municipal law and give damages in respect of an act which, 
 according to its own principles, imposes no liability upcm the 
 defendant,^ and that no action can be maintained in England 
 for a tort committed within the jurisdiction of a foreign coun- 
 try, unless the act is wrongful both by the law of the country 
 where it was committed and by the law of England.* 
 
 § 27. In the t7nited States. — In the United States, this 
 question has been very fully discussed. In a leading case 
 arising under the statute of New York, it appeared that the 
 defendant, a corporation chartered under the laws of that 
 State, operated a railroad in New Grenada, and had made a 
 contract, in New York, with the plaintifTs intestate, to trans- 
 port him as a passenger over its railroad. The plaintiff's in- 
 testate, being killed by the alleged negligence of the defendant 
 in performing its duty to him as a common carrier, the plain- 
 tiff brought his action for damages in New York, under 
 the statutes. The plaintiff's complaint did not allege that the 
 law of New Grenada would authorize a similar action in the 
 courts of that country. It was held that the plaintiff could 
 not recover, for that the local statute under which the action 
 was brought was not simply remedial, but created a new cause 
 of action in favor of the personal representatives of the de- 
 ceased, which was wholly distinct from, and not a revivor of, 
 
 ^ Blake v: Midland Counties Railway, 21 L. J. Q, B. 233, and see 
 Keedham v. Grand Trunk Railway, 38 Vt. 294 ; § 28i ante. 
 
 " The Halley, L. R. 2 P. C. 193 (distingaishing Smitt v. Condrey, 
 1 How. U. S. 28). 
 
 8 The M. Moxham, 1 P. D. 107. 
 
§§ 26-28.] PARTIES PLAINTIFF. 33 
 
 that cause of action which the deceased would have had, if he 
 had survived, for his bodily injury. It was also held that the 
 court could not assume that a like statute existed in New 
 Grenada, where the accident occurred. Denio, J., said: 
 " Whatever liability the defendants incurred by the laws of 
 New Grenada, by the acts mentioned in the complaint, might 
 well be enforced in the courts of this State ; the defendant as 
 a domestic corporation being readily compellable to answer 
 here. But the rule of decision would still be the law of New 
 Grenada, which the court and jury must be made acquainted 
 with by the proof exhibited before them." ' The presumption 
 is that the common law prevails in the State where the acci- 
 dent happens, and no such presumption prevails as to the 
 existence of the statute. The case is to be distinguished 
 when the wrong complained of was a violation of a common- 
 law right, existing both in the jurisdiction in which the injury 
 occurred and in that where the action is sought to be main- 
 tained.2 
 
 § 28. Ab between different States. — The same rule is applied 
 whether the question arises upon the law of a State and a 
 foreign country or upon the law of two of the States.' Thus 
 an action was brought in Massachusetts by an administrator 
 appointed in that State upon the statute of New York pro- 
 viding for an action in behalf of the personal representative 
 of a person killed by the wrongful act of another person, or 
 corporation, in cases in which the deceased person, had he 
 survived, might have had such action; the action to be for 
 the benefit of the widow and next of kin of the deceased per- 
 son, and the damages to be divided as under the statute of 
 distributions. The court said : " By the common law, and by 
 the laws of this Commonwealth, no action could be brought 
 
 1 Whitford v. Panama R. R., 23 N. Y. 465. See also McDonald v. 
 Mallory, 77 N. T. 547; Vandenwater v. New York & N. H. R. R., 27 
 Barb. 244 ; Crowley v. Panama R. R., 30 Barb. 99 ; Beach c. Bay State 
 Steamboat Co., 30 Barb. 438; Turner v. St. Clair Tunnel Co., Ill Mich. 
 578; Alexander v. Penn. Co., 48 Ohio St. 623 ; Anderson v. M. & St. P. 
 R. R., 37 Wis. 321. 
 
 « State V. Pittsburg & Connellsville R. R., 45 Md. 41. 
 
 * Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48. 
 
 8 
 
34 PEBSONAL INJURIES. [CHAP. I. 
 
 against the railroad company for negligently causing the 
 death of the plaintiff's intestate. . . . The plaintiff rests her 
 case wholly on the statute of New York. If this be a penal 
 statute it cannot be enforced beyond the territory in and for 
 which it was enacted. If it gives a new and peculiar system 
 of remedy, by which rights of action are transferred from one 
 person to another in a mode which the common law does not 
 recognize, and which is not in conformity with the laws or 
 practice of this Commonwealth, there is an equally insuper- 
 able objection to pursuing such a remedy in our courts." 
 And the court held that the New York statute did introduce 
 a principle unknown to the common law, and so sustained the 
 defendant's demurrer.' 
 
 § 29. 'When Foreign Actions maintained. — On the other hand 
 an action may be maintained in one State by the personal 
 representatiye* of a person whose death resulted from an in- 
 jury received in another State, through the negligence of 
 the defendant, where the statutes of the two States giving 
 the personal representative the right are similar in purpose 
 and substance, although they be not precisely the same,^ or 
 although the incidents of recovery in the one jurisdiction may 
 differ from those in the other.^ In an action brought in Mas- 
 sachusetts for a personal injury received in Connecticut, it ap- 
 peared that, under the Connecticut decisions, the action might 
 be maintained, but that under the Massachusetts decisions the 
 injury would have been regarded as caused by the negligence of 
 a fellow-servant of the plaintiff, who, therefore, would be de- 
 barred from recovering. It was held that the action might be 
 maintained in Massachusetts, the court saying : " we are of 
 opinion that, as between the States of this Union, when a tran- 
 sitory action has vested in one of them under the common law 
 
 1 Richardson ». New York Central R. R., 98 Mass. 85. The case of 
 Woodward w. Michigan Southern & Northern Indiana R. R., 10 Ohio St. 
 121, was decided on similar grounds, but the pleadings did not allege that 
 an action would lie in Illinois, the action being in Ohio, and the question 
 was not fully considered. 
 
 * Leonard v. Columbia Steam Navigation Co., 84 N. Y. 48. 
 
 * Higgins V. Central N. E. & W. R. R., 156 Mass. 176. See Chandler 
 V. N. Y., N. H., & H. R. R., 159 Mass. 589, 
 
§§ 28-29.] PAETIES PLAINTIFF. 35 
 
 as there understood and administered, the mere existence of a 
 slight variance of view in the forum resorted to, not amounting 
 to a fundamental difference of policy, should not prevent an 
 enforcement of the obligation admitted to have arisen by the 
 law which governed the conduct of the parties." ^ Bat it is 
 apprehended, where the statute of a State is in the nature of a 
 penal statute, that is, where the damages recovered are to be 
 assessed according to the culpability of the defendant, that an 
 action on the statute cannot be supported in another State 
 where the measure of damages is the pecuniary loss suffered 
 by the persons for whose benefit the action is brought." In 
 Kansas, it was held that the statute * providing for an action in 
 the case of death had no extra-territorial force.* The statute 
 of New Jersey * gives a right of action, for death, to the per- 
 sonal representative of the deceased, while under the statute 
 of Pennsylvania,^ such right is given to his widow. An action 
 being brought by the widow, in Pennsylvania, for a death 
 caused by the defendant's negligence in New Jersey, it was 
 held that the action could not be maintained.' 
 
 » Walsh V. N. Y. & N. E. E. R., 160 Mass. 571. 
 
 * See remarks of Hoar, J., in Kichardson v. New York Central K. R., 
 9S Mass. 85, and of Miller, J., in Dennick v. Central R. R. of New Jer- 
 sey, 103 U. S. 11, and Illinois Central R. R. v. Crudup, 63 Miss. 291. 
 
 » Civil Code, § 422, Gen. Sts. 1868. pp. 708, 709. 
 
 * McCarthy v. Chicago, Rock Island & Pacific R. R., 18 Ran. 46, and 
 see Nashville & Chattanooga R. R. v. Eakin, 6 Cold. 582; Hover v. Penn- 
 sylvania Co., 25 Ohio St. 667 ; Selma, Rome & Dalton R. R. v. Lacy, 43 
 (Ja. 461. In Needham o. Grand Trunk Railway, 38 Vt. 295, it was held 
 that the action could not be maintained for the reason that the injury 
 complained of occurred in New Hampshire where there was no statute 
 giving a right of action. In State v. Pittsborg & ConneUsville R. R., 45 
 Md. 41, there was no allegation by the plaintiff of the existence of such a 
 statute in the State where the injury occurred, and the action failed on 
 that ground. 
 
 » P. L., 151. • P. L., 309. 
 
 T TJabeF v. West Jersey R. R., 126 Penn. St. 206; Derr v. Lehigh 
 Valley R. R., 158 Penn. St. 365. But see § 30, /wst. In Wisconsin, under 
 sec. 4255 S. & B. Ann. Sts., giving a right of action for death, &c., " pro- 
 vided that such action shall be brought for a death caused in this State 
 and in some court ... of the same," it is held that an action might be 
 maintained for a deatli occurring in another State but resulting from 
 nepli^ent acts <rf the defendant in Wisconsin. Rndiger v. Chic, St. P., 
 && R. R., 94 Wis. 191- 
 
36 PERSONAL INJURIES. [CHAP. I. 
 
 § 30. Rtde of the Federal Courts. — The Federal Courts are 
 disposed to hold a very broad jurisdiction in respect of 
 actions brought in one State for a cause of injury occurring 
 in another. In the Supreme Court of the United States, it 
 has been held that when the statute of a State gives a remedy 
 for the death of a person caused by the negligence of another, 
 and provides that the action shall be brought by the personal 
 representative of the deceased person, such personal represen- 
 tative appointed in a State other than that in which the death 
 occurred may bring such action in the courts of the State in 
 which he was appointed; and such courts can compel dis- 
 tribution of the amount recovered in the manner prescribed 
 by such statute. Miller, J., said : " The action is in the nature 
 of trespass to the person, always held to be transitory, and 
 the venue immaterial. . . . We do not see how the fact that 
 it was a statutory right can vary the principle. ... If the 
 liability to pay money was fixed by the law of the State where 
 the transaction occurred, is it to be said it can be enforced 
 nowhere else because it depended upon statute law and not 
 upon common law ? It would be a very dangerous doctrine 
 to establish, that in all cases where the several States have 
 substituted the statute for the common law, the liability can 
 be enforced in no other State but that where the statute was 
 enacted and the transaction occurred." This case arose under 
 the statute of New Jersey, which provides no limit of the 
 amount to be recovered, and that the "jury may give such 
 damages as they shall deem fair and just, with reference to 
 the pecuniary injury resulting from such death, to the wife 
 and next of kin of such deceased person ; " and Miller, J., said, 
 " It is scarcely contended that the act belongs to the class of 
 criminal laws which can only be enforced by the courts of 
 the State where the offence was committed, for it is, though 
 a statutory remedy, a civil action to recover damages for a 
 civil injury,"^ and later, in an action by the representa- 
 tives of a railway employee against the company to recover 
 damages for the death of the employee through the negligence 
 of the company, which was tried in a different State from that 
 in which the contract of employment was made and the 
 
 1 Denniok v. Central R. R. of New Jersey, 103 U. S. 11. 
 
§ 30.] PARTIES PLAINTIFF. 37 
 
 accident took place, it was held, definitely, that the right to 
 recover, and the limit of the amount of damages are governed 
 by the lex loci and not by the lex fori. It is said : " The 
 statute of another State has, of course, no extra-territorial 
 force, but the rights acquired under it will always, in comity, 
 be enforced, if not against the public policy of the laws of 
 the former. . . . The law of the place where . . . the liability 
 was incurred will govern as to the right of action ; while all 
 that pertains merely to the remedy will be controlled by the 
 law of the State where the action is brought. . . . The courts 
 of no country execute the penal laws of another. But . . . 
 the rule cannot be invoked as applied to a statute . . . which 
 merely authorizes a civU action to recover damages for a 
 civil injury." ^ In a later case, where it appeared that, under 
 a statute of Maryland authorizing the survival of the right 
 of action, the State is made the plaintiff, and the jury is 
 to apportion the damages, and that, under the act of Con- 
 gress, in the District of Columbia the personal representa- 
 tive of the deceased person is made the plaintiff and the 
 law apportions the damages, it was held by the Supreme 
 Court that these differences were not sufl&cient to render the 
 respective statutes inconsistent ; and, accordingly, that an 
 action brought in the District of Columbia by the personal 
 representative of one killed, by reason of the defendant's 
 negligence, in Maryland, might be maintained. The court 
 says that the purpose of the several statutes passed in the 
 
 » Northern Pac. K. R. r. Babcock, 154 U. S. 190. In this case the 
 accident occaired in Montana, where the amount of damages to be 
 recovered by the representative of the deceased was unlimited, and the 
 action was brought in Minnesota, where damages in such cases were 
 limited, and it was held that the Minnesota rule of damages applied. 
 See Herrick r. Minn. & St. L. R. R., 31 Minn. 11 ; Texas & Pacific 
 R. R. V. Cox, 145 U. S. 593. Sect. 2452, Vermont Sts. 1894, provides 
 that, as against a corporation, an action for damages for the death of a 
 person " shall be brought in the name of the personal representative of 
 the deceased." The Civil Code of Lower Canada provides that "the 
 consort" of the deceased " and hia ascendant and descendant relations 
 have a right ... to recover." It was held that these statutes were 
 not dissimilar, and that an action for death by defendant's negligence 
 might be maintained in Yermont, although the negligent act was done 
 in Canada. Boston & Maine R. R. v. McDuffey, 51 U. S. App. 111. 
 
88 PERSONAL INJDEIES. [CHAP. I. 
 
 States in more or less conformity with Lord Campbell's Act 
 is to provide means for recovering damages caused by what 
 is in its nature a tort, and where such a statute simply 
 removes a common-law obstacle to a recovery for a tort, an 
 action for that tort can be maintained in any State, in which 
 that common-law obstacle has been removed, when the statute 
 of the State in which the cause of action arose is not, in sub- 
 stance, inconsistent with the statutes or public policy of the 
 State in which the action is brought.* 
 
 1 Stewart v. Bait. & Ohio K. R., 168 U. S. 445. It appears never to 
 have been affirmed directly by the Supreme Court of the Uuited States, 
 in a case presenting the question, that an action b^ libel, in personam, 
 for damages for death under statutes like Lord Campbell's Act, in force 
 where the cause of action arises, can be entertained and carried to a 
 decree in a Federal court of Admiralty ; but it appears to be clear that 
 if the local lavr gives a right of action, in personam, for a cause of action 
 of a maritime nature, a Federal court of Admiralty may administer the 
 law by proceedings in personam. See The City of Norwalk, 55 Fed. Rep. 
 98 ; The Transfer, No. 4, 20 U. S. App. 570; The City of Mackinac, 43 
 U. S. App. 190; The Williamette, 44 U. S. App. 26. 
 
§§ 30-31.] PARTUS DEPENDAMT. 39 
 
 CHAPTER n. 
 
 OF PABTIES DEFENDANT. 
 
 SECTION I. 
 
 OF THE JOINT AND SEVERAL LIABIUTT. 
 
 § 31. Defendants Jointly and Severally laable. — Where the 
 immediate act of which the plaintiff complains is done by the 
 co-operation, or the joint act, of several persons, they are all 
 trespassers and may be sued jointly, or as each of them is 
 liable for the injury done by all, either may be sued alone.^ 
 But to render one liable in trespass for the acts of the others 
 it must appear either that they all acted in concert, or that 
 the act of the one sought to be charged might be expected 
 ordinarily and naturally to procure or induce the acts of the 
 others.' It is said that in any action brought for a personal 
 injury the question whether several persons may be joined as 
 parties ddPendant depends upon whethei' or not such persons 
 were engaged in a common act of such a character as to 
 endanger the plaintiff and cause the injury of which he com- 
 plains. If such is the fact, then the several persons so en- 
 gaged are liable as joint trespassers for their common act, 
 
 1 Washington & Georgetown E. R. v. Hickey, 166 U. S. 521. A cove- 
 nant not to sne one of two tort-feasors is not an accord and satisfaction 
 with both. Bat a release of the cause of action made to one of several 
 joint feasors is a release to aU. Chicago v. Babcock, 143 HI. 358 ; Snyder 
 V. Witt, 99 Tenn. 618. 
 
 ^ See GoiUe v. Swan, 19 Johns. 381, 382. Where mail-carriers unnec- 
 essarily obstruct the platform of a railway station, thereby cauMng injnry 
 to one who recovers therefor from the railway company, the latter is not 
 a joint wrong-doer in such a sense as to prevent a recovery from the mail- 
 carriers of the amount paid on the judgment Old Colony B. B. v. Slav- 
 ens, 148 Mass. 363. 
 
40 PEESONAL INJURIES. [CHAP. IK 
 
 and are subject to joint action of trespass or tort in the 
 nature of trespass, and, in such action, one may be charged 
 and another discharged.^ Thus where several persons were 
 engaged in a game of cricket within the limits of a public 
 highway they were held to be jointly liable to the plaintiff for 
 a personal injury thereby caused him.^ It may be said, gener- 
 ally, that if at common law each of several. persons would be 
 liable in trespass for the same act, they are jointly liable. 
 Thus a corporation and its servant were held jointly liable for 
 an injury unnecessarily inflicted by, the servant upon the 
 plaintiff in carrying out the directions of the corporation.^ 
 On the other hand, if the plaintiff's remedy as against one 
 party would be by an action of trespass, and against another 
 by an action of trespass on the case, then such parties are not 
 to be joined in the same action. Thus where the principal is 
 made responsible for the act of his agent because of the 
 agency and not because the two are joint actors, the remedy 
 as against the agent would be in trespass, and against the 
 principal by an action of trespass on the case, and the two 
 could not be made joint defendants.* In accordance with the 
 rule stated, where a collision of railway trains, or of a steam 
 car and a street car, is brought about by the concurring negli- 
 gence of the two companies, they are jointly or severally 
 liable.^ And a gas company is liable for an injury arising 
 from a gas explosion caused by the combined negligence of a 
 construction company in connecting gas mains and of the 
 gas company in prematurely forcing the gas into them.^ 
 
 § 32. So, although Contract Relation ezists. — It has been 
 seen that although a contract subsists between the injured 
 
 1 Matthews v. Del. L. & W. R. R., 56 N. J. L. 34; West Chicago St. 
 R. R. V. Piper, 165 HI. 325 ; Richmond & D. R. R. v. Greenwood, 99 
 Ala. 501. 
 
 " Vosburg ». Moak, 1 Cush. 453, and see Phillips v. Hall, 10 Wend. 
 654. 
 
 8 See § 44, post, and Hewett v. Swift, 3 Allen, 420. 
 
 * Mnlchey v. Methodist Religious Society, 125 Mass. 487. 
 
 6 McDonald v. Louisville & N. R. R., 47 La. Ann. 1440; O'Toole v. 
 Pittsburgh & L. E. R. R., 158 Penn. St. 99. 
 
 » Chicago, &c. Gas Co. v. Meyers, 168 111. 139. 
 
§§ 31-32.] PARTIES DEPENDANT. 41 
 
 person and the wrong-doer, and although the act complained 
 of is a violation of the contract,^ yet the plaintiff may waive 
 the remedy upon the contract obligation and sue in tort for 
 the breach of the general duty. It follows, if there be several 
 joint contractors in equal wrong, upon the general principle 
 stated, that the plaintiff suing in tort may join all the con- 
 tractors as defendants or may pursue his action against any 
 number less than all. Thus in an action of tort brought 
 against several proprietors of a stage coach, founded upon an 
 injury alleged to have been caused by the negligence of the 
 defendants, the jury having found in favor of some of the 
 defendants and agamst the others, it was held that a judg- 
 ment upon the verdict was to be supported, since from the 
 nature of the case and the form of the action the liability 
 was several and not joint.^ 
 
 * As to the rights of the passenger, no contract hetween the carrier and 
 the passenger need appear. When a person takes passage with a common 
 carrier, the law implies a contract of a safe passage for a fair compensa- 
 tion. Frink v. Schroyer, 18 IlL 416; Pittsburgh C. C. & St. L. R. R. ». 
 Rnss, 18 U. S. App. 279; Crane Elevator Co. v. Lippert, 24 U. S. App. 
 176. See § 4, ante, and cases cited. 
 
 ' Bretherton v. Wood, 6 Moore, 141, 3 Brod. & B. 54, as cited ante, 
 § 5, n. In Alton v. Midland Railway, 19 C. B. (n. s.) 213, 238, the prin- 
 ciple is said to be this : that when the action is maintainable for the tort 
 simply, without reference to any contract between the parties, no advan- 
 tage can be taken of the omission of some defendants or of the joinder of 
 too many. But where the action is not maintainable without i-eferring to 
 a contract between the parties, and laying a ground for it by showing 
 such a contract, then all the defendant contractors must be joined. But 
 this case, as has been stated, proceeds upon the doctrine that, whenever a 
 contract exists between the parties plaintifE and defendant, of which con- 
 tract the defendant's act complained of is a breach, then the wrongful act 
 is to be referred solely to the breach of contract, so that even if the plain- 
 tiff sue in tort all the incidents of an action of contract attach to his 
 action, — a doctrine which is believed to be unsupported by authority. 
 See the case fully discussed, § 11 and note, ante. 
 
42 PERSONAL INJURIES. [CHAP. II. 
 
 SECTIOlf II. 
 LIABILITY OP MASTER FOR ACTS OP SERVANT OR AOENT. 
 
 (a) &enerall^, 
 
 § 83. Respondeat Superior: General Rule. — It is a rule of 
 the common law that the master is responsible for the acts 
 of the servant whom he selects, and through whom, in legal 
 contemplation, he acts, provided that the particular act was 
 done by the servant in the carrying out of the authority given 
 to him by his master, and for the purpose of doing what he 
 has been set to do.^ And this is so whether the wrong done 
 was the result of the mere negligence of the servant in doing 
 what he had to do, or by his wanton and reckless purpose to 
 accomplish the business in an unlawful manner. Thus if the 
 master orders his servant to do an act the doing of which 
 implies the use of force and violence to others, leaving the 
 servant to determine the extent and kind of force to be used, 
 he will be liable if the servant, in executing the order, uses 
 force in any unjustifiable manner or degree.'* So, if a servant, 
 ii^ performance of the work which has been intrusted to him, 
 wrongfully assaults a third person, both master and servant 
 are liable for the resulting injury and may be joined in the 
 same action.^ And this is so even if the act of the servant be 
 in itself justifiable, as where the servant of a railway company 
 uses unnecessary violence in removing a disorderly passenger 
 from the car of the corporation.* In such a case both master 
 and servant are answerable in trespass, and may be joined as 
 defendants.* When the testimony in any case is conflicting, 
 
 1 Hilliard v. Richardson, 3 Gray, 349 ; Wyllie v. Palmer, 137 N. Y. 248 ; 
 Kait V. N. E. Furniture Co., 66 Minn. 76. 
 
 » Howe ti. Newmarch, 12 Allen, 49 ; Schaefer v. Osterbrink, 67 Wis. 495. 
 
 » Canfield v. Chic. R. I. & Pao. R. R., 59 Mo. App. 354. 
 
 * Higgins V. Watervliet Turnpike Co., 46 N. Y. 23; Sandford v. Eighth 
 Ave. R. R., 23 N. Y. 343. 
 
 ' See § 31, ante. And the rule applies whether the master be a private 
 person or a corporation. See § 44, post. The rules on this subject are 
 
§ 33.} PASTIES DEFENDANT. 43 
 
 or the conclusion to which it leads doubtful, the question 
 whether the relation of master and servant existed is one of 
 fact.^ Where the injury complained of is the result of the 
 violation by the servant of a statutory duty not existing at 
 common law, the penalty for such violation being imposed 
 solely upon the party guilty of it, the master will not be 
 responsible for such a violation. Thus where the servant 
 neglected to drive his master's vehicle to the right of the 
 road upon meeting another vehicle, in violation of a statute 
 prescribing the law of the road, it was held that the master 
 could not be charged in an action upon the statute.* But the 
 master may be liable in a common-law action for the injury.* 
 If a servant, in going out of his way, is still engaged in his 
 master's business, within the scope of his employment, the 
 fact that he joins with this some private business or purpose 
 of his own is immaterial. Where the question of the master's 
 responsibility turns on the extent of the deviation by the ser- 
 vant from the strict line of his duty, it is generally a question 
 of fact. Where the deviation is slight, and not unusual, the 
 court may, as matter of law, determine that the servant was 
 still engaged in his master's business ; or, when the deviation 
 
 the same by the civil law. See Camp v. Wardens of Chnroh of St. Louis, 
 7 La. Ann. 321. By tJie Civil Code of Louisiana, art. 2299, it is provided 
 that masters and emplo^rs shall be answerable for the damages occasioned 
 by their servants and overseers in the exercise of the functions in which 
 they are employed. For the rule of the Civil Law upon the subject, see 
 Domat, Lois Civiles, liv. 2, tit. 8; Dalloz, tit. Kesponsibilite ; Fothier, 
 Obligations, No. 116; Devlinconrt, tome 2, p. 492. 
 
 1 Northwestern Union Packet Co. v. McCue, 84 U. S. 108; Forsyth v. 
 Hooper, 11 Allen, 419; Kimball v. Cushman, 103 Mass. 194; Preston v. 
 Knight, 120 Mass. 5. One who is the general servant of another may be 
 lent or hired by his master to another for a special service, so as to become, 
 as to such service, the servant of the third party. The test in such cases 
 is whether, in the service which he is engaged to perform, he continues 
 liable to the direction and control of the master, or subject to that of 
 the party to whom he is lent or hired. Conghlan v. Cambridge, 166 Mass. 
 268, and see Ward v. New England Fibre Co., 154 Mass. 419; Hasty v. 
 Sears, 157 Mass. 123; Samuellian v. American Tool & Machine Co., 168 
 Mass. 12; Dean v. £. Tenu., See. B. B., 98 Ala. 586. 
 
 » Goodhue v. Dix, 2 Gray, 181. 
 
 ' Beynolds v. Hanrahan, 100 Mass. 313. 
 
44 PESSONAL INJURIES. [CHAP. II. 
 
 is very marked and unusual, that he was engaged, not in his 
 master's business, but in his own.^ 
 
 § 34. Illustrations of the General Rule. — The master is liable 
 for an assault committed by the servant in taking possession 
 of personal property by the master's directions,^ and a drug- 
 gist is liable for the consequence of his clerk's negligence in 
 selling poison in the course of his employment.^ Where a 
 railway engineer, in violation of the rule of his road, invited 
 a child to ride in the cab of his locomotive, and, while the 
 locomotive was in motion, forced him to jump off, whereby 
 the child was injured, it was held that the engineer was acting 
 within the scope of his employment in compelling the boy to 
 leave the locomotive ; and so that the railroad company was 
 liable for the injury.* So where a boy was stealing a ride on 
 a freight train, and a brakeman threw pieces of coal at him 
 to drive him from the train, one of which struck him on the 
 head, knocking him under the wheels of a car and injuring 
 him, it was held that the defendant company was responsible 
 for the injury.^ Where a railway yard-master operated a train 
 for his own ends, whereby another employee of the railroad 
 was injured, it was held that the company was not liable for 
 the injurious result of the yard-master's acts.^ A railway en- 
 gine crew moving cars on the track of a private shipper, with 
 his knowledge and under his direction, are, pro hae vice, the 
 servants of the shipper, and for their negligence the shipper 
 only will be liable.^ The defendant and two other railroad 
 companies had two other crossings near the one where the 
 accident occurred, and each crossing was used by each road in 
 common. Bach company employed and paid one of the 
 flagmen, and the flagman at the crossing where the accident 
 
 » Ritchie v. Waller, 63 Conn. 155. 
 
 2 McClung ». Dearborn, 26 W. N. C. 43. 
 
 * Osborne v. McMasters, 40 Minn. 103. 
 
 * Chicago, Milwaukee & St. P. E. K. v. West, 28 HI. App. 44, 125 El. 
 820. See Bowler ». O'Connoll, 162 Mass. 319; DrisooU v. Scanlon, 165 
 Mass. 348. 
 
 « Lang V. New York, L. E. & Western K. R., 51 Hun, 603. 
 
 * Chicago, St. P., &o. R. R. t-. Davidson, 27 U. S. App. 681. 
 1 Mclnemey v. Del. k H. Canal Co., 151 N. Y. 411. 
 
§§ 33-34.] PARTIES DEFENDANT. 45 
 
 occurred was employed and paid by the defendant road. It 
 was held that the defendant road was liable for his negligence 
 although at the time of the accident he was flagging a train 
 belonging to another company.* The owners of a vessel are 
 liable for the torts of the master done in the execution of the 
 business in which the vessel is engaged.^ In an action for 
 personal injuries against a steamship company which had 
 undertaken to load a lighter alongside its wharf with cotton, 
 there was evidence that its employees, in wheeling the bales on 
 board the lighter, were to act under the direction of its steve- 
 dore ; but, in throwing the bales through the hatch into the 
 hold, under the direction of an officer of the lighter, it ap- 
 peared that one of the employees wheeled a bale upon the 
 lighter, and without receiving or waiting for orders from the 
 officer of the lighter, threw the bale into the hold, thereby 
 injuring the plaintiff. It was held that there was evidence 
 that the employee, in throwing the bale, acted as the servant 
 of the defendant.* The general rule of liability has often been 
 
 1 Buchanan v. Chic. M. & St. P. R. R., 75 Iowa, 393. Where, at the 
 crossing of three raih-oads by a single street, one set of gates is managed 
 for the benefit of all the railroads, by a gateman employed and controlled 
 by one of them, with the assent of the others who are responsible to the 
 employing railroad for a part of his wages, such gateman is the servant 
 of the employing railroad, which may be responsible to a traveller injured 
 by a train upon one of the other roads through the gateman's negligence 
 in managing the g^tes. Brow v. Boston & Albany R. R., 157 Mass. 399. 
 " The State of Missouri, 46 U. S. App. 245. 
 
 ^ Hickey t;. Merchants' & Miners' Transp. Co., 153 Mass. 39. See 
 Blaikie & Stembridge, 6 C. B. (n. s.) 894 ; Warburton ». Great Western 
 Railway, L. R. 2 Ex. 30. A passenger purchased from a railroad com- 
 pany a ticket over its line, and at the same time from the Pullman Palace 
 Car Company a ticket entitling him to a berth in one of its sleeping cars, 
 constituting a part of the train of the railroad company. In the course 
 of transportation he was injured by the falling of a berth in the sleeping- 
 car in which he was at the time riding. It was held that the sleeping-car 
 company, its conductor, and porter, were in law the servants and em- 
 ployees of the railroad company, and that their negligence was that of the 
 company. Pennsylvania Co. v. Boy, 102 U. S. 451. A lessee or licensee 
 of the exclusive privilege of entering cars or upon the right of way of a 
 railroad corporation to sell lunches, is not a servant of the corporation in 
 such sense as to make the latter liable for an assault committed by the 
 licensee upon a competitor for the business. Fluker v. Greorgia B. B. & 
 
46 PERSONAL INJURIES. [CHAP. H. 
 
 applied in actions brought against common carriers of passen- 
 gers for injuries caused by the acts of their servants,, either 
 in ejecting passengers, without right, from cars or other ve- 
 hicles ; or, when such ejection was legally justifiable, in em- 
 ploying unnecessary force and violence in accomplishing it.^ 
 And if the carrier wrongfully ejects the passenger he is liable 
 for the injuries thereby caused to the latter, although the re- 
 sistance of the passenger to the wrongful removal contribute 
 to cause such injuries.^ 
 
 Banking Co., 81 Ga. 461. Where the defendant's servant, driving his 
 wagon, took E., an acquaintance, upon the wagon, at E.'s request, and E., 
 while adjusting empty barrels upon the wagon, threw one of them against 
 and injured the plaintiff, it was held that 'while. E. was not a servant of 
 the defendant, yet the defendant was liable for the injury done to the 
 plaintiff if the negligent act was done by the direction or with the assent 
 of the driver. James v. Muehlebach, 34: Mo. App. 512. But where the 
 defendant's servant, without the knowledge or authority of his master, 
 hired a third person to do his work temporarily, and, by the negligence 
 of such third person, the plaintiff was injured, it was held that there was 
 no cause of action for such injury as against the master. Mangan v. 
 Foley, 33 Mo. App. 250. 
 
 1 Moore v. Fitchburg R. R., 4 Gray, 465; Holmes v. Wakefield, 12 
 Allen, 580 ; Wright v. New York Central R. R., 25 N. Y. 562; Warner 
 ». Erie R. R., 39 N. Y. 468; English v. Canal Co., 66 N. Y. 454; Frazier 
 V. Pennsylvania. R. R., 88 Fenn. St. 104 ; Pennsylvania R. R. v. Yandiver, 
 42 Penn. St. 365; Gallagher v. Piper, 16 C. B. (n. s.) 361; Feltham, v. 
 England, 2 Q. B. 33; Bayley v. Manchester, S. & L. R. R., 7 C. P. 415; 
 and cases cited, post, § 73. The conductor of a freight train prohibited 
 from carrying passengers acts within the scope of his authority in com- 
 pelling a would-be passenger to leave the train, and the railroad is liable 
 for injuries to the latter caused by his ejection from a rapidly moving train. 
 Stone V. Chic, St P., &o. R. R., 88 Wis. 98, and see Boehm ».Duluth So. 
 Shore, &c. R. R., 91 Wis. 592. The rule applies to a sleeping-car com- 
 pauy, acting as a common carrier. Nevin v. Pullman Palace Car Co., 
 106 m. 222. The rule was applied where unnecessary force was used in 
 ejecting an intruder from the building of a corporation. Hewett v. Swift, 
 3 Allen, 420. In Barrett v. Maiden & Melrose R. R,, 3 Allen, 101, it was 
 held that the defendant might be liable for damages sustained in conse- 
 quence of the bite of a dog kept about its buildings and allowed to ride in 
 its cars by its servants. 
 
 ' See cases cited, supra, and also Lonisville, N. A. & C. Railway Co. v. 
 Wolfe, 128 Ind. 347 ; Lake Erie & Western Railway «. Acres, 108 Ind. 
 548; Chicago, St. L., & P. R. R. v. Holdredge, 118 Ind. 281; Southern 
 Kansas Railway v. Rice, 38 Kan. 398. 
 
§§ 34-36.] PARTIES DEFENDANT. 47 
 
 § 35. Authority' of Servant to do tbe Act inferred from tbe 
 Employment. — It seems that, ordinarily, the fact of the em- 
 ployment will justify the conclusion that the act complained 
 of was done by the authority of the master.' Thus where the 
 plaintifP, being a passenger for hire in the defendant's omni- 
 bus, was expelled by the conductor of the omnibus, for what 
 the conductor deemed improper conduct, and with such vio- 
 lence that the plaintiff was injured, it was considered that the 
 defendant must be taken to have given authority to the 
 conductor to expel any person he believed was behaving 
 improperly, and so that the conductor in removing the plain- 
 tiff was acting within the scope of his authority, and the 
 defendant might be liable.^ So a street railway company was 
 held liable for the injuries caused by the act of the driver of 
 one of its cars in wrongfully ejecting a passenger from the 
 platform of the car, although the act of the driver was not 
 merely negligent but malicious and wiKul, and it was said 
 that it must be deemed a part of the employment of a driver 
 to put a person off the platform of the cars who is there with- 
 out right, and by employing the driver the company leave it to 
 him to determine the propriety of ejecting a passenger and 
 the degree of force to be used in doing it.^ 
 
 § 36. Master may be liable, although Servant act 'trithont, or 
 against. Orders. — It is the duty of the master to employ suit- 
 able and prudent servants to execute his orders, and he wiU 
 be liable for the wrongful or negligent acts of his servants, 
 done within the general scope of their authority, although not 
 
 1 See Guinaey v. Hand, 153 Penn. St. 404. 
 
 1 Greenwood t>. Seymour, 4 L. T. R. (n. s.) £xch. 835. 
 
 ■ Meyer ». Second Avenue R. R., 8 Boaw. 305. Contrary expressions 
 contained in Hibbard v. New York & Erie R. R., 15 N. Y. 457, are obiter 
 dicta. Under the code of Greorgia, § 3033, providing that railroad com- 
 panies shall be liable for damages caused by their employees unless their 
 agents have exercised reasonable care and diligence, such company is 
 liable for the kiUlBg of a person lawfully in its station and transacting 
 business with its agent, as such, although such agent was so far insane 
 as not to be responsibia criminally for his own act, if the company em- 
 ployed him knowing of his insanity. Christian v. Columbus & R. B- R., 
 79 Ga. 460. 
 
48 PERSONAL INJURIES. [CHAP. 11. 
 
 done by his express orders ^ or the orders of a superior ser- 
 vant,2 or even if done "against orders.^ Thus, where the 
 servant, driving his master's carriage to a certain place' to 
 execute a commission of his master, against the master's 
 express direction, deviated from the road to do an errand of 
 his own, and in returning injured the plaintiff by driving 
 against her, it was held that the master was liable. Erskine, 
 J., said : " It is quite clear that if a servant, without his 
 master's knowledge, takes his master's carriage out of the 
 coach-house, and with it commits an injury, the master is not- 
 answerable, and on this ground, that the master has not in- 
 trusted the servant with the control of the carriage; but 
 whenever the master has intrusted the servant with the con- 
 trol of the carriage, it is no answer that the servant acted 
 improperly in the management of it. If it were, it might be 
 contended that if a master directs his servant to drive slowly, 
 and the servant disobeys his orders and drives fast, and 
 through his negligence occasions an injury, the master will 
 not be liable. But that is not the law ; the master in such a 
 case will be liable, and the ground is that he has put it in the 
 servant's power to mismanage the carriage, by intrusting it to 
 him." * So a railroad corporation is liable for injuries sus- 
 tained by a person who while entering its station for the 
 purpose of taking a train is struck and knocked down through 
 the act of its servant, done in the scope of his employment, in 
 ejecting a drunken man from the premises.® So where the 
 engineer of a locomotive had been forbidden, in the execution 
 
 1 Higgins V. Watervliet Turnpike Co., 46 N. Y. 23 ; Powell ». Deveney, 
 3 Cnsh. 300; Southwiek v. Estes, 7 Cush. 385; Barden o. Felch, 109 
 Mass. 154; Hamel v. Brooklyn & N. Y. Ferry Co., 6 N. Y. Supp. N. E. 
 Eep. 102 (1889) ; North Chicago Railway v. Gastka, 21 N. E. Kep. 522 
 (111. 1889); Clark v. Koehler, 46 Hun, 536; Schmidt v. Steinway & H. P. 
 R. R., 55 Hun, 496; McClungt). Dearborn, 26 W. N. C. 43. 
 
 " Coleman v. New York & N. H. R. R., 106 Mass. 160. In this case the 
 defendant was held to be liable for unjustifiable violence used by its ser- 
 vants in expelling the plaintiff from a railway train, such servants being 
 the assistants of the conductor, and the violence used being against the 
 conductor's orders. 
 
 « McCann v. Cons. Traction Co., 59 N. J. L. 481. 
 
 « Sleathe v. Wilson, 9 C. & P. 607. 
 
 B Gray v. Boston & Maine R. R., 168 Mass. 20. 
 
§§ 36-37.] PARTIES DEPENDANT. 49 
 
 of his employment, to run his locomotive upon a certain 
 track, but disobeyed orders, whereby a passenger of tlie 
 defendant was injured, it was held that the defendant was 
 liable for the injury.^ A railway engineer who without orders 
 and in violation of the rules of the company attempts to run 
 his engine from one station to another, and in so doing comes 
 into collision with another train belonging to the company is 
 still in the line of his employment, and the company is liable 
 for the resulting injury to a passenger on the train.^ 
 
 § 37. 'Whea Master not responsible. — " When a servant quits 
 sight of the object for which he was employed, and, without 
 having in view his master's orders, pursues that which his 
 own malice suggests, his master will not be liable for such 
 acts." ^ Thus, if a servant driving a carriage, in order to 
 effect some purpose of his own, wantonly strikes the horses 
 of another person, and produces 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 extricate himself 
 from a difficulty, that will be negligent and careless conduct, 
 for which the master will be liable, being an act done in pur- 
 
 1 Philadelphia & Eeading R. R. v. Derby, 14 How. 4G8. Where the 
 wanton and malicious use of a locomotive whistle by the engineer in charge 
 frightened the plaintiff's horse, which ran and injured the plaintiff, it was 
 held, by a majority of the court, that the railroad was liable, Texas & Pac. 
 R. R. V. Scoville, 23 U. S. App. 506, the court saying : " To say that the 
 engineer and fireman who have charge of the locomotive on a regular run 
 may while so running it blow the whistle wantonly and maliciously . . . 
 to separate themselves, in and by that act, and for that instant, from the 
 company's service, is to refine beyond the line of safety and sound 
 reason." 
 
 2 Fitzsimmons v. Mil. L. S. & W. R. R., 98 Mich. 257. 
 
 * Per Lord Kenyon in McManus v. Crickett, 1 East, 106. Where a 
 conductor, believing that a certain person had broken open a car of the 
 railway company, without a word, walked up to such person, standing 
 quietly on the platform of a station, and shot him down; it was held 
 that the act constituted murder, and was in no sense within the scope of 
 the conductor's employment. Candiff ». Louisville, N. O. & T. R. R., 42 
 La. Ann. 477 (compare Railway Co. v. Hackett, 58 Ark. 351). See 
 Winkler v. Fisher, 95 Wis. 355; Goodloe v. Memphis & C. R. R., 106 Ala. 
 233; Golden v. Newbrand, 2 N. W. Rep. (Iowa) 537; Davis v. Hough- 
 tellin, 33 Neb. 582; Vernon v. Comwell, 104 Mich. 62. 
 
 4 
 
50 PERSONAL INJURIES. [CHAP. H. 
 
 suance of the servant's employment.^ And the general rule 
 seems to be that when the master is liable for the acts of his 
 servant, this is because such acts are taken to be done by the 
 direct or implied authority of the master, or in the exercise of 
 a discretion vested in the servant in respect of the thing to be 
 done. And when it appears that master was not negli- 
 gent in the selection of the servant and that no authority or 
 discretion was vested in the servant to do the act complained 
 of, then the master is not to be held liable therefor ,2 as where 
 the servant did the wrong complained of not as a concomitant 
 of the execution of his orders but -for some private end or 
 advantage of his own, or of a third person.^ But if there is 
 
 1 Craft V. Abison, 4 B. & Aid. 590, and see Greenwood v. Seymour, 
 4 L. T. Rep. (n. s.) Exch. 835; Fowler v. Holmes, 24 N. Y. S. Rep. 299; 
 MitoheU v. Crasweller, 13 C. B. 237; Storey v. Ashton, L. R. 4 Q. B. D. 
 476 ; Bolingbroke v. Swindon, L. R. 9 C. P. 575 ; Lyons v. Martin, 8 A. 
 & E. 512; Stevens t>. Woodward, 6 Q. B. D. 318 ; Rayner v. Mitchell, 2 C. 
 P. D. 357. 
 
 * Howe V. Newmarch, 12 Allen, 49; McGilvray v. West End St. Rail- 
 way, 164 Mass. 122. 
 
 ' Levi V. Brooks, 121 Mass. 501; Brown v. Jarvis Engineering Co., 
 166 Mass. 75. A railroad corporation is not liable for the consequences, 
 if a fireman, without the authority of the conductor, take torpedoes from 
 the caboose and place them on the track, in order to assist in a Fourth of 
 July celebration. Chicago, Burlingfton & Quincy R. R. v. Epperson, 26 
 m. App. 72. It was held that one whose duty it was to superintend the 
 delivery of goods sold by his employer, did not act within the scope of 
 his employment in assaulting another who refused to accept certain goods, 
 although the purpose of the assault was to compel the acceptance of 
 the goods. Meehan v. Morewood, 52 Hun, 566. Although the general 
 rule is settled that, in order to make the master responsible for an assault 
 committed by his servant, the servant's act must have been done in the 
 carrying out of his employment, it is possible that an exception to the rule 
 arises when the master owes to the injured person a peculiar duty which 
 involves in its performance the employment of proper and discreet ser- 
 vants. Thus a customer in a shop may have a right to look for courteous 
 behavior from the servants of the proprietor; and so it has been held that 
 the proprietor was liable for the maltreatment of one of his customers by 
 an employee, although the employee, in making the assault, did not act 
 within the scope of his employment. Mallach v. Ridley, 24 Abb. N. C. 
 172. Where a railway porter assaulted a passenger, it was held to be a 
 question for the jury whether he did this in the scope of his employment. 
 Dwindle v. New York Cent. & H. R. R. R., 120 N. Y.- 117, reversing 45 
 
§§ 37-38.] PAETIES DEPENDANT. 51 
 
 wantonness or mischief causing additional damage, in the act 
 of a servant done within the scope of his employment, the 
 damages for the resulting injury may be thereby enhanced' as 
 against the master.' 
 
 § 38. Special Liability of Carriers of Passengers. — While it is 
 a general rule that the master shall be liable only for wrong- 
 ful acts of his servant done in carrying out his employment, 
 it would appear that the rule is to be more broadly applied in 
 favor of the plaintiff in cases in which the action is by a pas- 
 senger against a carrier for injuries resulting to the plaintiff 
 from the tort of the servant of the carrier. Is it not neces- 
 saiy to consider whether the duty of the carrier is a public 
 duty ,2 or one arising solely out of the contract of transporta- 
 tion, since, in either case, the obligation of the carrier is the 
 same ; but, considering that the relation of the parties arises 
 out of the contract, It was held in a case in which a carrier 
 by water was defendant, that " Passengers do not contract 
 merely for shiproom and transportation from one place to an- 
 other ; but they also contract for good treatment, and against 
 personal rudeness and every wanton interference with their 
 persons either by the carrier or his agents employed in the 
 management of the ship or other conveyance." ^ Thus if the 
 servant of the carrier wantonly assault, insult, or maltreat 
 the passenger, although the wrongful act be not done within 
 the line of the employee's duty, but in the gratification of his 
 own malicious disposition and for a purpose wholly uncon- 
 nected with his employment, the carrier may be liable. Thus 
 
 Hun, 139. See Whatman o. Feaison, 3 C. P. 422; Northern Central R. 
 B. V. State, 29 Md. 420. 
 
 ^ Hawes v. Enowles, 114 Mass. 518. Where a toll-keeper in charge 
 of a bridge, leased a portion of the bridge for the display and sale of 
 certain articles, at the sight of which the plaintiff's horse was fright- 
 ened, and the pl^ntifi injured, it was held that the act of the toll-keeper 
 in displaying such articles was not within the scope of his employment. 
 Wiltse V. State Board Bridge Co., 63 Mich. 639. 
 
 2 See Philadelphia & Reading B. R. v. Derby, 14 How. 468. 
 
 » Pendleton v. Kinsley, 3 Cliff. 416 ; Dwinelle v. New York Central & 
 H. R. S. B., 120 N. Y. 117. In the latter case, it was held that the car- 
 rier undertakes to protect its passengers against the wilful misconduct of 
 its servants, and, semUe, of its other passengers. 
 
62 PEESONAL INJURIES, [CHAP. II. 
 
 the defendant was a carrier of passengers upon a steamboat 
 on which the plaintiff was a passenger for hire. The steward 
 and waiters of the defendant accused the travelling companion 
 of the plaintiff of evading payment for his supper, and, upon 
 the plaintiff's remonstrating with them in a reasonable man- 
 ner, turned upon and assaulted the plaintiff. It was held that 
 the defendant was responsible.^ The same rule of liability 
 has been applied in cases of assaults by railway employees 
 upon passengers on their trains.^ It may be diflSicult to draw 
 the line between those cases in which a wrongful act, clearly 
 the result of the servant's malice, is to be imputed to the 
 carrier, and those in which the remedy of the injured person 
 is solely against the servant, but it is apprehended that these 
 rules may be laid down as being supported by the weight of 
 modern authority : (1) If the wrongful act is inflicted on the 
 plaintiff while he is a passenger in actual course of transpor- 
 tation, by a servant of the carrier acting as such at the time 
 of the act, the law will consider the carrier as responsible 
 therefor, without inquiring whether the wrong was committed 
 in the execution of the servant's employment : (2) But if the 
 act were done by the servant not on duty, nor acting as the 
 servant of the carrier at the time, then the servant alone is 
 responsible.^ Thus in the case stated the court said : " If 
 
 1 Bryant v. Kich, 106 Mass. 180, and see Simmons ». New Bedford, 
 Vineyard & Nantucket Steamboat Co., 97 Mass. 361, 368. The liability 
 arises out of the duty of the carrier to see that the passenger is not ex- 
 posed to harm. Thus where a mob of drunken men forced a passage 
 into the defendant's car and there fought with one another, and in so 
 doing injured a passenger, it was held that the defendant was responsi- 
 ble, it not appearing that the conductor had done all in his power to stop 
 the fighting. Pittsburg, Fort Wayne & Chicago R. R. v. Hinds, '53 
 Penn. St. 512. See also Chicago & Alton R. R. v. Pillsbniy, 123 111. 9 ; 
 Putnam v. Broadway & 7th Ave. R. R., 55 K T. 108 ; Flint v. Norwich 
 & N. Y. Trans. Co., 34 Conn. 554; N. O., St. L. & Chic. R. R. v. Burke, 
 53 Miss. 200; Pittsburg & Connellsville R. R. v. Pillow, 78 Penn. St. 
 510; Kinney v. Louisville & N. R. R., 99 Ky. 59. 
 
 '^ See Bryan v. Chicago, R. I. & Pac. R. R., 63 Iowa, 464; Gallena v. 
 Hot Springs R. R., 18 Fed. Rep. 116; Peeples ». Brunswick & A. R. R., 
 60 Ga. 281; Chicago & E. R. R. v. Flexman, 103 HI. 546; Dillingham v. 
 Anthony, 73 Tex. 47. 
 
 « See Chamberlain v. Chandler, 3 Mason, 242 ; Nieto v. Clark, 1 ClifE. 
 
§§ 38-39.] PARTIES DEPENDANT. 53 
 
 . . . any of the officers or men connected with the running 
 of the defendant's boat had met the plaintiff in the street or 
 elsewhere, in a position wholly disconnected witli their duties 
 to the defendants, and committed an assault and battery upon 
 him, it is clear that the defendants would not have been 
 liable." ^ 
 
 (b) Servant and Contractor. 
 
 § 39. Employer not liable for Acts of mere Contractor : Sab- 
 Contractor. — The rule of respondeat superior does not apply 
 
 145; Groddard ». Graiid Trunk Railway, 57 Maine, 202; Milwaukee & 
 Mississippi R. R. v. Kinney, 10 Wis. 388 ; Baltimore & Ohio R. R. v. 
 Blocher, 27 Md. 277 ; Stewart v. Brooklyn & Crosstown R. R., 90 N. Y. 
 588; Dwinelle v. New York Central & H. R. R. R., 120 N. Y. 117; 
 McKinley v. Chicago & Northwestern R. R., 44 Iowa, 314 ; Sherley v. 
 Billings, 8 Bush, 147; Western & Atlantic R. R. v. Turner, 72 Ga. 292; 
 Atlanta & West Point R. R. v. Condor, 75 Ga. 51 ; Central R. R. v. Pear 
 cock, 69 Md. 257; Lampkin v. Louisville & N. R. R., 106 Ala. 287. 
 
 1 Bryant v. Rich, 106 Mass. 180, 188. It is said to be the policy of 
 the law to give to the servants and agents of corporations a large and 
 liberal discretion, and to hold the corporation responsible for all their 
 acts, within the most extensive range of their charter powers. See Phil- 
 adelphia & Reading R. R. v. Derby, 14 How. 483 ; Northern Central R. 
 R. V. State, 29 Md. 420. But the rule stated in the text is not applicable 
 when the wrongful act of the servant of the carrier is neither done in the 
 exercise of his employment nor to one who stands to the carrier in the re- 
 lation of a passenger. Thus it was held that where a brakeman on a rail- 
 way train wantonly threw a stone at a boy who was trespassing on the 
 train, and injured him, the corporation was not liable. Pittsburg, A. & 
 M. P. R. R. V. Donahue, 70 Penn. St. 119. So a railroad corporation is 
 not answerable for injuries suffered by a child by reason of the negligence 
 of a brakeman, who, while using a hand-car of the company upon his 
 private business, invites the child to ride upon it. Gulf, C. & S. F. R. R. 
 V. Dawkins, 77 Tex. 228. Some of the decided cases would seem to fall 
 very near the lige. Thus where the servant of a railroad struck a passen- 
 ger who had a quarrel with him, it was held that the corporation was not 
 liable. Little Miami R. R. v. Wetmore, 19 Ohio St. 110, and see Johnson 
 f. Chicago, Rock Island & Pac. R. R., 58 Iowa, 348; Gillian v. South & 
 North Alabama R. R., 70 Ala. 268; Flower v. Pennsylvania R. R., 69 
 Penn. St. 210. Where an unlawful expulsion from a sleeping-car berth 
 was the proximate cause of a woman's miscarriage, the sleeping-car com- 
 pany was held liable although' its servants were ignorant of the woman's 
 condition when they expelled her. Mann Boudoir Co. v. Dapre, 4 C. C. 
 A. 540. 
 
54 PERSONAL INJUEIES. [CHAP. II. 
 
 when the employee is a contractor with, and not a servant of 
 the employer, and, generally, if a person, in the exercise of 
 his rights as a private individual, or of those conferred upon 
 him by statute, employs a contractor to do work, and the 
 latter is negligent in doing it, the contractor and not the 
 employer is liable. For, when the person employed is in the 
 exercise of an independent employment, and is not subject to 
 the immediate supervision and control of his employer, the 
 relation of master and servant does not exist, and the employee 
 alone will be responsible for accidents arising from the care- 
 less exercise of the employment or work which he has con- 
 tracted to do.^ Like rules are applied as between a principal 
 contractor and a sub-contractor employed by him.^ Thus a 
 contractor for the erection of a building who sub-contracts a 
 portion of the work and who reserves no control or authority 
 over, or right to direct as to the manner of performance, save 
 generally to insist that the work be done according to the 
 terms of the sub-contract, is not liable to a third person for 
 an injury caused by the negligence in doing his work of the 
 sub-contractor, who remains alone liable for the consequences 
 of his negligence.' Contractors erecting a building according 
 
 1 Detroit 17. Corey, 9 Mich. 165; Reidel v. Moran, 103 Mich. 262; Keier 
 V. Detroit Steel, &c. Works, 109 Mich. 204 ; Engel v. Eureka Club, 137 
 N. Y. 100; Colgrove v. Smith, 102 Cal. 220; Hilliard v. Richardson, 3 
 Gray, 349 ; Moline v. McKinnie, 30 HI. App. 419 ; Jefferson u. Jameson, 
 &c. Co. 165111. 138; Hughbanks v. Boston Investment Co., 92 Iowa, 267; 
 Quarman v. Burnett, 6 M. & W. 499; Rapson v. Cubitt, 9 M & W. 710 ; 
 Peachey e. Rowland, 13 C. B. 182. (See Sadler v. Henlock, 4 El. & Bl. 
 570, 572.) 
 
 2 Overton v. Freeman, 11 C. B. 867; Bright v. Bamett, &c. Co., 88 
 Wis. 299 ; Cotter v. Lindgren, 106 Cal. 220. 
 
 * Slater v. Mesereau, 64 N. Y. 138 ; Johnson v. Ott, 155 Penn. St. 17 ; 
 Sincer v. Bell, 47 La. Ann. 1548 ; Alabama Mid. R. R. «. Martin, 100 
 Ala. 511. So where A., having contracted to pave a street, entered into a 
 sub-contract with B. to do the work, A. furnishing the materials, and a 
 workman employed by B. piled the materials in the street in a negligent 
 manner, so that the plaintifi was injured thereby, it was held that B. was 
 responsible for the nuisance and the resulting damage. Overton v. Free- 
 man, supra. Where a sub-contractor on a building erected certain scaf- 
 folds for his own and his employees' use, and a laborer employed by the 
 general superintendent of the work attempted to cross the scaffold solely 
 for his own convenience, when the structure gave way, and he was killed ; 
 
§§ 39-40.] PARTIES DEFENDANT. 55 
 
 to fixed plans and specifications, and of a prescribed material, 
 are independent contractors, although the work is to be per- 
 formed under the inspection and to the satisfaction of an 
 architect acting as agent of the owner,^ If the owner inter- 
 feres with the work of an independent contractor, he may be 
 liable for the injurious results of such interference.^ Thus 
 the owner cannot direct that a building shall be constructed 
 of improper materials, or in an improper manner, and escape 
 liability merely because he has contracted with a third person 
 to build it.^ So the removal, by a city of a barrier placed by 
 a street contractor, in compliance with his contract, relieves 
 the contractor of responsibility for resulting accidents.* The 
 controlling test that determines is the right to exercise con- 
 trol, not the exercise of control : in other words, when the 
 right of control exists, the relation is that of master and 
 servant ; when the right is merely to object, the relation is 
 that of owner and contractor.^ 
 
 § 40. Sole illustrated in Actions against Corporations. — 
 This rule has often been applied in actions brought against 
 
 it was held that the defendant was not liable. Maguire v. Magee, 13 Atl. 
 Sep. 551 (Penn. 1888). In an action for injuries caused by the falling 
 of a wall erected by the defendant as an independent contractor, where it 
 appeared that the defendant accepted the wall from a sub-contractor with 
 knowledge of its unsafe condition, and the defendant's servants did cer- 
 tain work on the wall which it was alleged caused its unsafe condition, it 
 was held that the question whether the defendant's liability was shifted 
 to the sub-contractor was for the jury. Berberich ». Ebach, 131 Penn. 
 St. 165. It is to be observed that it is always the duty of the em- 
 ployer to select careful and competent employees, and if he faUs to do 
 this he will be responsible for injuries resulting from the negligence of 
 the employee, even although the employee be a contractor merely, not 
 deriving his authority to do the negligent thing from his employer. 
 Conners v. Hennessey, 112 Mass. 96. 
 
 1 Smith V. Milwaukee Exchange, 91 Wis. 360. 
 
 » Pender v. Raggs, 178 Penn. St. 337. 
 
 « Meier v. Morgan, 82 Wis. 289. 
 
 * Kulwicki II. Munro, 95 Mich. 28. 
 
 s Atlantic Transport Co. v. Coneys, 51 U. S. App. 570. See Presby- 
 terian Cong. V. Smith, 163 Penn. St. 561 ; Kerr it. Keokuk Waterworks 
 Co., 95 Iowa, 509; Hampton v. Unterkircher, 97 Iowa, 509; Scarborough 
 p. Midland K. R., 94 Ala. 497; Mayer v. Thompson-H. Co., 104 Ala. 611; 
 Halifax R. R. v. Shalley, 33 Fla. 397. 
 
56 PEESONAL INJURIES. [CHAP. II. 
 
 municipal corporations to recover for injuries caused by the 
 negligence of persons or their agents, who had contracted 
 with the corporation to perform certain work, it being con- 
 sidered generally that the contractor alone is liable for such 
 injuries.^ So it is held that a municipal corporation is not 
 liable for injuries to third persons occasioned by the negli- 
 gence of workmen engaged in grading streets or digging 
 sewers under the directions of one who lias entered into a 
 contract with the corporation to do the work for a specified 
 sum to be paid by the corporation,^ and the rule was held to 
 be the same although the work of the contractor, before it 
 was paid for, was to be approved in writing by the superin- 
 tendent of roads. '^ Where the defendant employed by a 
 city to build a retaining wall for the purpose of widening a 
 street, was paid by the day for his own work and that of his 
 workmen ; and, by reason of the negligence of his workmen, 
 a traveller in the street was injured, the defendant being at 
 the time absent, it was held that the defendant stood in rela- 
 tion to his workmen as master, and as such was responsible 
 for the injury ; and that the fact that the city might abandon 
 the work at any time, at its option, was not material.* 
 Where it was stipulated between a railway corporation and 
 a contractor to build a portion of the line, that the cor- 
 poration should have the power of dismissing any of the con- 
 tractor's workmen for incompetence, it was held that the 
 corporation was not responsible for injuries received by the 
 plaintiff through the negligence of one of the contractor's 
 
 1 Painter v. Pittsburg, 46 Penn. St. 213 ; Eby v. Lebanon County, 166 
 Penn. St. 632; Heidenwag v. Philadelphia, 168 Penn. St. 72. There are 
 cases which seem to assume that municipal corporations are affected by a 
 peculiar immunity in respect of liability for injuries caused by acts of 
 their contractors, so that under no circumstances can they be made liable 
 for such injuries ; see Gumo v. St. Louis, 12 Mo. 414 ; Barry i>. St. Louis, 
 17 Mo. 121 ; but it is apprehended that a similar legal responsibility in 
 this respect attaches alike to municipal and other corporations in all 
 cases in which the common law creates a duty. 
 
 * Blake v. Ferris, 5 N. Y. 48 ; Pack v. Mayor of New York, 8 N. Y. 
 222. 
 
 8 Kelly V. Mayor of New York, 11 N. Y. 434. 
 
 * Geer v. Darrow, 61 Conn. 220. 
 
§§ 40-41.J PARTIES DEPENDANT. 57 
 
 workmen. The court appear to have assumed it to be beyond 
 question that the defendant did not stand as to the workman 
 in the relation of an employer.^ "When a work is done for a 
 railway company under a contract, parol or otherwise, the 
 company is not responsible for injury resulting to a third 
 person from the negligent manner of doing the work, though 
 they employ their own surveyor to superintend it and to 
 direct what shall be done.^ 
 
 § 41. Employee may be at the seune time Servant and Con- 
 tractor. — There is not, necessarily, such a repugnance be- 
 tween the relations, respectively, of master and servant and 
 of contractor and contractee that these cannot exist together.^ 
 If the contractor undertakes in general terms to do the work 
 and the employer reserves the power to direct what shall be 
 done, and how it shall be done, the employer is still the prin- 
 cipal, and is liable for the negligence of the contractor from 
 which injury results.* So the contractors for making certain 
 excavations, while they acted for themselves, were considered 
 to have acted at the same time as the agents of the defendant 
 in respect of the acts complained of, so as to render the 
 municipality liable.* Where the contract is split up into 
 different contracts, and the owner undertakes to supply the 
 materials, and no provision is made for the supervision of the 
 work or maintaining guards, the duty is on the owner to pro- 
 tect the public.® On the other hand, the employee may be a 
 servant and not a contractor although employed to do but a 
 single act, and though he be employed by the job and not by 
 the day. Ordinarily, if he be not a person exercising an 
 independent calling, but an ordinary laborer, it would seem 
 that he is to be considered a servant. Thus where a day 
 laborer was employed to clean out a drain without assistance 
 
 1 Beedie v. London & Northwestern Railway, 4 Exch. 244. 
 
 2 Steel V. Southeastern Railway, 32 E. L. & E. 306. 
 
 3 Detroit v. Corey, 9 Mich. 165. 
 
 * New Orleans, Mobile & Chattanooga R. R. v. Hauning, 82 U. S. 
 649. 
 
 * Detroit v. Corey, supra. 
 
 6 Homan v. Stanley, 66 Penn. St. 464. 
 
58 PEKSONAIi INJURIES. [CHAP. II. 
 
 from others or direction from his employer, and received a 
 certain sum for the job, it was held that the employer was 
 responsible for the negligence of the laborer in doing the 
 work.^ A mere licensee who enters premises by the owner's 
 permission, but solely for his, the licensee's, benefit, is not in 
 any sense the servant of the owner, so as to charge the latter 
 with the results of his negligence.^ Nor is one who works a 
 farm " at the halves " the servant of the owner so as to make 
 the owner responsible for the results of his negligence.* 
 
 § 42. Question, in whose Right the Act is done. — The ques- 
 tion in all cases would seem to be whether in doing the thing 
 complained of the employee acted in his own authority or 
 right, or in the right of his employer. It is obvious that if he 
 act in obedience to the paramount authority of his employer, 
 he so far stands in the relation of a servant or agent for whose 
 negligence the employer is responsible.* So if he act imder 
 an authority granted to his employer, without which the act 
 complained of would be unlawful, he acts in the employer's 
 right, and under an authority which the employer cannot dele- 
 gate so as to escape responsibility if the right and authority be 
 abused.^ So where a contractor does the work only by virtue 
 
 1 Sadler v. Henlock, 4 El. & Bl. 570. 
 
 ' Sawyer v. Martins, 25 111. App. 521. 
 
 8 Marsh v. Hand, 120 N. Y. 315. See Ferguson v, Hubbell, 97 
 N. T. 507. 
 
 * See § 41, ante. 
 
 » Veazie v. Penobscot E. E., 49 Maine, 19. So a railroad company 
 cannot by any stipulation with contractors relieve itself from its obliga- 
 tion to protect the public from danger at a point where its road interferes 
 with or obstructs a public highway. In this case the company had 
 stipulated that the work of constructing its road should be done " accord- 
 ing to the plans and directions of the chief engineer of the company, to 
 be employed and paid by the company," and the company was held 
 liable for an injury resulting from his negligences. Ibid. There is a 
 line of English cases which intimate the doctrine that when a man is in 
 possession of fixed property, as land, or buildings, he must take care 
 that his property is so used and managed that other persons shall not 
 be injured, and, that, whether the property be managed by his own 
 immediate servants, or by contractors or their servants. This is said to 
 be upon the principle that injuries done upon the lands or buildings 
 
§§ 41-42.] PARTIES DEFENDANT. 59 
 
 of a permit granted by a city to the employer to dig up the 
 public streets for the employer's benefit, it is held that the 
 employer will be liable to third persons for injuries occasioned 
 by the negligence of the contractor in doing his work.^ So 
 where one employed another to fill his ice-house and obtained 
 a license from the municipality to encumber the street for 
 
 are in the nature of nuisances for -which the occupant is chargeable 
 ■when such injuries are occasioned by those whom he brings upon the 
 premises. And it is said " the use of the premises is confined by the law 
 to himself, and he should take care not to bring persons there who do 
 any mischief to others." Bush v. Steinman, 1 B. & P. 404. See Laug- 
 her V. Pointer, 5 B. & Cr. 547, 8 D. & R. 559;, Sey v. Edgeley, 6 Esp. 6; 
 Kandleson v. Murray, 8 A. & E. 109, 3 N. & P. 239. But in Reedie v. 
 London & Northwestern Railway, 4 Exch. 244, 256, the court, referring 
 to the above doctrine as laid down in Bosh v. Steinman, supra, say : " On 
 full consideration we have come to the conclusion that there is no such 
 distinction, unless perhaps in cases where the act complained of is such 
 as to amount to a nuisance ; [see Matthews v. West London Waterworks 
 Co., 3 Camp. 403] and that . . . Bush v. Steinman must be taken not 
 to be law." See also Allen v. Hayward, 7 Q. B. 960. In Painter v. Pitts- 
 burg, 46 Fenn. St. 213, the doctrine of Bush i>. Steinman is disapproved. 
 Ld Althorp V. Wolfe, 22 N. Y. 355^ 364, the same doctrine is intimated 
 as in Bush v. Steinman, but no authorities are cited, and the expression 
 appears not to be necessary to the decision of the case. The statement of 
 the doctrine of Bush c. Steinman in Lowell v. Boston & Lowell R. R., 
 23 Pick. 24, 31, appears to lose sight of the distinction laid down in the 
 English case, and the decision of the case in Massachusetts rested upon 
 other grounds. See Yeazie v. Penobscot R. R., 49 Maine, 19, as cited, 
 supra. In Lake Superior Iron Co. ii. Erickson, 39 Mich. 492, it appeared 
 that an employee was injured by the negligence of the contractor under 
 whom he was working, but that the accident could not have occurred had 
 the roof of the mine been properly shored and guarded by the owners. 
 The court held that the plaintifi was entitled to recover, upon the ground 
 that the company, being the owners of dangerous property, it was their 
 duty, as to all persons entering it by right, to see that it was kept safe 
 as might be by the use of reasonable precautions, and that this duty 
 existed as to the workmen although these were employed by an indepen- 
 dent contractor. " By employing men to act for them in either way, they 
 hold out the assurance that they can work in the mine on ordinary con- 
 ditions of safety usually found in such places. They guarantee nothing 
 more than is usual among prudent owners ; and they do not insure against 
 that which is purely accidental. But they do tacitly represent that they 
 have not been and will not be reckless themselves." See § 66, post, 
 
 1 Woodman v. Metropolitan R. R., 149 Mass. 835. See also § 43, and 
 cases cited. 
 
60 PEESONAL INJURIES. [CHAP. IL 
 
 that purpose, it was held that he could not avoid liability for 
 injuries caused by unlawfully obstructing the street with blocks 
 of ice, by objecting that his employee was a contractor and 
 so alone liable; since if the contractor had been prosecuted 
 for creating a public nuisance he could not have justified in 
 his own right, but as the agent of the defendant under tlie 
 contract.^ 
 
 § 43. Exceptions to General Rnle in Case of XToisance. — If the 
 very thing contracted to be done is in its nature mischievous 
 and improper to be done, and reasonably certain to result in 
 injury to others, he by whose original authority it is done 
 will be responsible for the resulting injury, whether the per- 
 son doing the act complained of stand to him in the relation 
 of contractor or servant.^ Upon this principle rests the rule 
 
 ^ Darmstaetter v. Moynahan, 27 Mich. 188, and see Sadler v. Henlock, 
 4 El. & Bl. 570, and § 43, post. 
 
 * Mulchey v. Methodist Religious Society, 125 Mass. 487. The prin- 
 ciple governing the cases would seem to be that when the work contracted 
 to be done is lawful in itself, the contractor alone is liable for the injuries 
 resulting from his negligent manner of doing it ; on the other hand, if 
 the thing to be done is essentially wrongful, as creating a nuisance in a 
 public way by digging a ditch therein, then the principal as well as the 
 contractor is liable. Ellis v. Sheffield Gas Cons. Co., 2 £1. & Bl. 767, and 
 see McCamus v. Citizens' Gras Light Co., 40 Barb. 380; City & Suburban 
 R. R. V. Moores, 80 Md. 348; Carlson v. Stocking, 91 Wis. 432. Com- 
 pare Wray v. Evans, 80 Penn. St. 102. So if a building in course of 
 erection and abutting on the public highway is left in an unsafe condi- 
 tion so that a traveller is thereby injured, the owner is responsible, 
 although the building is in the hands of the contractor at the time of the 
 accident. Sessengut v. Posey, 67 Ind. 408. See St. Paul Water Co. v. 
 Ware, 83 U. S. 16; District of Columbia v. Baltimore & Potomac R. R., 
 1 Mackey, 316; Hundhausen v. Bond, 36 Wis. 29; Earl v. Beadleston, 16 
 J. & S. 294. Where a part of a building falls without apparent reason, the 
 owner is not relieved of responsibility because he used reasonable care in 
 obtaining a competent contractor to do the work. A building so badly 
 constructed as to be dangerous is a nuisance, and the doctrine of indepen- 
 dent contractors does not apply. Wilkinson v. Detroit Steel & Spring 
 Works, 73 Mich. 405. The owner or occupant of land who, not parting 
 with possession, gives another a license to come upon his property to do 
 certain acts, in the doing of which an actual nuisance is created, is equally 
 with the licensee liable for the resulting damage. White v. Jameson, L. 
 R. 18 Eq. 303. This class of cases falls under the general rule which 
 
§§ 42-43.] PARTIES DEFENDANT. 61 
 
 that if the owner or occupant of land or buildings permits 
 another to create a public nuisance therein by reason of which 
 a third person suffers injury, the owner remains responsible. 
 In such a case it will be immaterial whether the person di- 
 rectly creating the nuisance was a servant, contractor, or mere 
 licensee, since the gist of the action is the fact that the occu- 
 pant or owner of the premises permits the nuisance to exist.^ 
 It was held that an action might be maintained against the 
 defendant by one who, in passing along the street, was injured 
 by reason of the negligence of workmen employed by persons 
 who had contracted with the defendant to lay down water 
 pipes, upon the ground that the defendant caused the sub- 
 contractor to commit a public nuisance.^ So a contractor lay- 
 ing a defective gas pipe, and the gas company knowing that it 
 is defective, and using it, are jointly liable.^ Where the in- 
 jury received by the plaintiff was by reason of a scaffold pole 
 placed in the public highway by a sub-contractor engaged in 
 building a bridge upon a line of railway, it was held, in an 
 action against the principal contractor, that not he, but the 
 sub-contractor, was liable. The court do not discuss the 
 question whether the pole set in the highway was a nuisance, 
 for the existence of which the railway might be liable.* So 
 if a railway company directs and procures a contractor en- 
 gaged in constructing its road to commit a nuisance, it is 
 jointly liable with the contractor therefor.^ It seems that 
 this class of cases may fall also within the reason of the rule, 
 that, where the act is done only as in the right or by the ex- 
 makes the owner or occnpant of land responsible for its safe condition, 
 and liable for a nuisance dangerous to the public, existing upon it, 
 whether caused by his own act or that of a third person. See § 74, post, 
 and Gray c. Boston Gas Light Co., 114 Mass. 149. 
 
 * Reedie ». London & Northwestern Railway, 4 Exch. 244. 
 
 * Matthews v. West London Waterworks Co., 3 Camp. 403. 
 
 * Lebanon Co. v. Leap, 139 Ind. 443. 
 
 * Knight V. Fox, 20 L. J. R. (n. s.) 65; 14 Jur. 963. 
 
 « Chicago, K. & W. R. R. v. Watkins, 43 Kan. 50. One who contracts 
 to do blasting in a street ia not relieved from responsibility to any person 
 injured thereby, although he has sublet the contract to a third person, 
 through whose negligence the injury occurred. Bnddin v. Fortunato, 31 
 N. Y. S. Rep. 278; and see St. Peter v. Dennison, 58 N. Y. 416. 
 
62 PERSONAL INJUEIES. [CHAP. H. 
 
 elusive authority of the employer, as under the permit or 
 license from public authority, the employer remains responsi- 
 ble for the consequences of the act.^ One who causes a ditch 
 to be dug across the travelled part of a highway, so dangerous 
 that it probably will cause injury to third persons, is not re- 
 lieved from liability for such injuries by the fact that the work 
 of constructing such ditch was done by a contractor over 
 whom he had no control as to the manner of doing the work.^ 
 So where a hole in the pavement in front of a stable occupied 
 by the defendant as lessee was left open by a person who was 
 removing manure from a pit under the pavement, under a 
 yearly contract between him and the defendant, it was held 
 that the defendant was liable for injuries thereby caused to 
 third persons.* 
 
 (c) Corporation liable for Tort of its Servants. 
 
 § 44. May be sued in Trespass or Case. — It was formerly 
 doubted whether an action sounding in tort could be main- 
 tained against a corporation,* but it is now settled that such 
 an action will lie, and that corporations may be charged, as 
 in trespass, for personal injuries caused by the acts of their 
 servants done under the authority of the corporation.^ And 
 
 1 See § 41, ante. 
 
 2 Ohio Southern R. R. v. Moray, 24 N. E. Rep. 269 (Ohio, 1889). 
 But it has been held that when an obstruction or defect created in a pub- 
 lic street is wholly collateral to the work contracted to be done, and is 
 wholly the result of the wrongful acts of the contractor who is doing the 
 work, or of his workman, the owner pf the premises is not liable for the 
 resulting injury. Davie v. Levy, 39 La. Ann. 826. 
 
 * Hughes V. Orange County Milk Aas'n, 56 Hun, 396, and see Hawver 
 r. Whalen, 49 Ohio St. 69. 
 
 * See the authorities holding this view collected in Orr v. Bank of the 
 United States, 1 Ohio, 36 (1821). 
 
 6 Duncan v. Surrey Canal Co., 3 Stark. 50 ; Tarborough v. Bank of 
 England, 16 East, 6; Smith v. Birmingham Gas Light Co., 1 Ad. & El. 
 526 ; Sutton v. Bank of England, 1 C. & P. 193 ; Matthews v. West Lon- 
 don Waterworks Co., 3 Camp. 403 ; Gibson v. Inglis, 4 Camp. 72 ; Hewett 
 V. Swift, 8 Allen, 420 ; Church of the Ascension v. Buckhart, 3 Hill, 193 ; 
 Weed V. Panama R. R., 17 N. Y. 362; Townsend v. Susquehanna Turn- 
 pike Co., 6 Johns. 90; Chestnut Hill & Spring House Turnpike Co. v. 
 Rutter, 4 S. & R. 6. The agents of a corporation represent it both as to 
 
§§ 43-44 a.] PARTIES dependant. 63 
 
 this is true both as to municipal and as to private corpora- 
 tions.^ Such actions, when founded upon the alleged active 
 malfeasance of the servant, are governed by the general prin- 
 ciple that when the master employs the servant to do an act 
 which involves the use of force against the person of another, 
 and the servant, in executing his employment, uses force, in a 
 manner or to an extent unlawful or unjustifiable, both master 
 and servant are answerable.^ In such a case, the action ordi- 
 narily will be in trespass. But a corporation aggregate may 
 be sued in an action of trespass on the case for the neglect of 
 a public duty by reason of which the plaintiff has suffered 
 injury.' 
 
 § 44 a. As to CorporationB in Heceiverahip. — Generally, a 
 railroad corporation is not liable for personal injuries caused 
 
 third persons and as to the servants of the corporation. Wright v. New 
 York Central R. R., 25 N. Y. 562 ; Warner ». Erie R. R., 39 N. Y. 468; 
 Frazier v. Pennsylvania R. R., 38 Penn. St. 104; Feltham v. England, 2 
 Q. B. 33; Gallagher v. Piper, 16 C. B. (n. 8.) 361. 
 
 1 Clark V. Washington, 12 Wheaton, 49 ; Baker v. Boston, 12 Pick. 
 184; Thayer o. Boston, 19 Pick. 511; Scott v. Mayor of Manchester, 1 H. 
 & N. 59. 
 
 * Holmes v. Wakefield, 12 Allen, 580 ; Green v. London General Om- 
 nibus Co., 7 C. B. (N. s.) 290; Towanda Coal Co. v. Heeman, 86 Penn. St. 
 418. Trespass will lie against a corporation aggregate for an assault 
 committed by its servant, and authorized by it to do the act, and such 
 authority thongh by parol binds the corporation ; and further, such an 
 act is capable of being ratified by the corporation so as to render it 
 liable for the act. But where the servant of the corporation took the 
 plaintiff into custody for an alleged breach of a by-law of the corporation 
 and carried him before a magistrate, where the attorney of the corpora- 
 tion attended to prosecute the charge, it was held that this was not a 
 ratification of the servant's act. Eastern Counties Railway v. Broom, 6 
 Ezch. 314. See Marion v. Chic. R. I. & Pac. R. R., 59 Iowa, 428. It is 
 held that a " Protective Department," incorporated for the protection of 
 life and prevention of fires in a city, without capital stock or income other 
 than that derived from compulsory assessments upon all the insurance 
 companies doing business in the city, whether connected with it or not, 
 was a private corporation for diminishing the cost of fire insurance to 
 insurers, and was liable for the negligence of its servants, not being 
 a public charity. Newcomb v. Boston Protective Department, 151 
 Mass. 215. 
 
 Riddle v. Proprietors of Locks and Canals, 7 Mass. 169. 
 
64 PERSONAL INJUEIES. [CHAP. 11. 
 
 by the negligent operation of the road while it is in the exclu- 
 sive possession and control of receivers. For a receiver, ap-- 
 pointed by a court of equity to hold, manage, and operate an 
 insolvent railroad, is ,not the agent of the insolvent corpora- 
 tion, nor a substitute for its board of directors. He is the 
 hand of the court which appoints him, and operates the railroad 
 under the orders and directions of the court as its custodian, 
 and not for the directors or shareholders of the corporation.^ 
 The principle is analogous to that applied to the liability of 
 the lessor for the torts of the lessee corporation, when the 
 lease is authorized by law.^ But when, under the receiver- 
 ship, the railroad remains, practically, under the management . 
 of the servants of the corporation, the latter will be responsi- 
 ble for the results of their negligent management.^ In order 
 to relieve the corporation of liability, the control of the prop- 
 erty must be wholly in the receivers ; and where there is a 
 joint possession, there will be a joint liability of the company 
 and the receivers.* The receiver, being in absolute control, is 
 liable for the negligence of his servants ; and when a succes- 
 sor to the receiver is duly appointed by the proper tribunal, 
 and qualified, he, in his representative capacity, becomes liable 
 for the negligence of the former receiver, or his servants.^ 
 And these rules apply whether the liability which it is sought 
 to enforce exists at common law, or is a new liability created 
 by statute.^ But the receiver, personally, is not liable for the 
 
 1 Memphis & Charleston K. E. ». Hoechner, 14 C. C. A. 469 ; Texas & 
 Pacific K. R. V. Johnson, 151 U. S. 81 ; Turner v. Hannibal & St. Jo. R. 
 R., 74 Mo. 602; Ohio & Miss. R. R. v. Davis, 23 Ind. 553; Memphis &L. 
 R. R. ». Stringfellow, 44 Ark. 322. 
 
 2 See § 49, poit. 
 
 ' Pennsylvania R. R. ». Jones, 155 U. S. 333 ; Memphis & Charleston 
 R. R. V. Hoechner, 31 U. S. App. 644. 
 
 * Memphis & Charleston R. R. ». Hoechner, 31 U. S. App. 644. 
 
 * St. Louis & Southwestern R. R. v. Holbrook, 41 U. S. App. 33; 
 MoNulta V. Lockhridge, 137 111. 270. 
 
 * Peirce v. Van Dusen, 47 U. S. App. 339. But a receiver is not a 
 " proprietor, owner, charterer, or hirer," within a statute giving a right 
 of action for injuries resulting in death and caused by the negligence of 
 the proprietor, owner, charterer, or hirer of a railroad, their servants or 
 agents. Allen v. Dillingham, 60 Fed. Rep. 176, 8 C. C. A. 544, following 
 Turner v. Cross, 83 Tex. 218, and see Burke v. Dillingham, 60 Fed. Rep. 
 729, 9 C. C. A. 255. 
 
§ 44 a.] PARTIES DEFENDANT. 65 
 
 damages recovered for the negligent acts of his servants ; but 
 these are chargeable upon the earnings of the property in his 
 hands, like operating expenses, and may be paid out of the 
 accruing income or out of property purchased by the receiver 
 for the legitimate uses of his trust.* The question whether 
 the receiver is to be charged with negligence in any case is 
 obviously to be determined by the same rules which would be 
 applied were the corporation itself made defendant.^ It seems 
 that an action for injuries sustained while the railroad was in 
 the hands of receivers cannot be maintained as against a new 
 corporation to which the receivers, acting under authority of 
 law, have turned over the property ; it being considered that 
 the new corporation cannot be made liable for acts done by 
 persons who were not its servants or agents, but were put 
 into control of the property by an adverse act.^ 
 
 1 Cowdrey v. Galveston, H. & H. R. R., 93 U. S. 352; Burnham v. 
 Bowen, 111 U. S. 776; Klein v. Jewett, 26 N. J. Eq. 474; MobUe & 
 Ohio R. R. V. Davis, 62 Miss. 271 ; Texas & Pacific R. R. v. Johnson, 76 
 Tex. 421; Texas & Pacific R. R. v. Hoffman, 83 Tex. 286. 
 
 » Klein v. Jewett, 26 ST. J. Eq. 474. 
 
 ' This mle was held by a majority of the court in Archambeaa v. New 
 York & N. E. R. R., 170 Mass. 272, and it was said that in that case the 
 special gronnds on which it had been thonght proper to charge a corpora- 
 tion to the extent of the property in its hands, paid for out of income by 
 the receiver, did not exist. It has been held in New York that a special 
 receiver, or assignee, of the property of a railroad, appointed in bank- 
 rnptcy proceedings, involuntary on its part, is not an agent or servant of 
 the corporation, and is not liable for injuries occasioned by the negli- 
 gence of his servants engs^ed in running the road ; and that, upon the 
 sale of the property and franchise of the raih-oad, the corporation as a 
 . legal entity does not vest in the purchasers, and they do not become 
 stockholders or corporators therein; nor are they liable for injuries 
 caused by the negligence of those operating the road between the time 
 of the sale, and the confirmation thereof by the court which created the 
 receivership. Metz v. BnfEalo, Corry & P. R. R., 58 N. Y. 61. 1 Gen. St. 
 Kan. 1889, par. 1251, provides that " every railroad company organized 
 or doing business in this State shall be liable for all damages done to any 
 employee of such company in consequence of any negligence of its agents," 
 &c. A railroad being in receivership it was held that the liability thus 
 created stiU attached as against the receivership. Hornsby v. Eddy, 5 C. 
 C. A. 560, following the construction of the statute in Trust Company 
 o. Thomason, 25 Kan. 1, and distinguishing Beeson v. Busenbark, 44 
 Kan. 669. 
 
 6 
 
66 PERSONAL INJUBIES, [CHAP. It. 
 
 § 44 h. As to Charitable CorporationB. — A corporation 
 which maintains a general hospital for sick or insane perr 
 sons, which has no capital stock, and whose members de- 
 rive no emolument from its operations, and the income of 
 which is derived from trust funds contributed by charitable 
 persons, is a public charitable corporation ; and, as such, is 
 not liable for injuries which result to a patient in its hospital 
 solely from the negligence of its servants and agents therein, 
 in the performance of their duties ; provided the corporation 
 has exfercised due care in the selection of such servants or 
 agents.^ This rule is held to be analogous to that which ex- 
 empts municipal corporations from liability for the negligent 
 acts of its public officers engaged in the performance of a 
 public duty.^ It is also considered that if any contract can 
 be inferred from the relation of the patient and the corpo- 
 ration, this can be only, on the part of the corporation, 
 that it will exercise due and reasonable care in the selec- 
 tion of its servants and agents.^ So where a patient was 
 injured by reason of the existence of a defect in the hospital 
 building, though the condition was caused by the negligence 
 of the defendant's superintendent, it was held that the corpo- 
 ration was not responsible.* So a railway corporation which 
 maintains a department hospital for the benefit of its em- 
 ployees, is not liable for the malpractice of the surgeons 
 therein, if it has used reasonable diligence in selecting them.^ 
 And it is held that a steamship corporation which provides a 
 competent surgeon for its ship, whom the passengers may 
 employ if they choose, without fee, is not liable for the negli^ 
 gence of such a surgeon in his treatment of a passenger, 
 either at common law, or under the Federal statute which 
 
 1 McDonald v. Mass. General Hospital, 120 Mass. 432; Hearne v. 
 Waterbury Hospital, 66 Conn. 98; Glavin v. Rhode Island Hospital, 12 
 R. I. 411; Downes v. Harper Hospital, 101 Mich. 555; Donaldson v. 
 Hospital, &c., 30 N. B. 279. 
 
 " See § 56, post. 
 
 » McDonald v. Mass. General Hospital, 120 Mass. 432. 
 
 * Benton v. City Hospital, 140 Mass. 13. 
 
 » Eighmy v. Union Pao. R. R., 93 Iowa, 538; and see Pittshurg, C. C. 
 & St. L. R. R. V. Sullivan, 141 Ind. 83; Chicago, B. & Q. R. R. p. How- 
 ard, 45 Neb. 570 ; South Florida R. R. ». Weese, 32 Fla. 46. 
 
§§ 44 6-45.] PARTIES DEFENDANT. 67 
 
 makes the employment of such a surgeon compulsory, under 
 a penalty.* 
 
 § 45. Corporation and Servant may be joined. — In those 
 jurisdictions which retain the forms of common-law pleading, 
 a joint action of trespass or of tort in the nature of trespass ^ 
 may be maintained against the corporation and its servant for 
 a personal injury inflicted upon the plaintiff by the servant in 
 discharging the duty imposed upon him by the corporation, 
 although such duty might have been discharged without the 
 use of unusual or .illegal force j^ for if the corporation is 
 chargeable in trespass for the act complained of such joinder 
 is proper, since, in trespass, all the actors are principals, and 
 he who commands the act may be joined with him who com- 
 mits it. And if it be shown that an action of trespass would 
 lie against the corporation as sole defendant, the right to join 
 the servant follows as a matter of course. If the order to do 
 the act which results in the injury complained of is given 
 to the servant by an oflBcer of the corporation acting by au- 
 thority, such officer is not liable for the resulting injury, but 
 the rule will be otherwise if the officer give such order on his 
 own responsibility.* 
 
 1 O'Brien o. Cnnard Steamship Co., 154 Mass. 272, and see Laub- 
 heim v. Steamship Co. , 107 N. Y. 229 ; Allan v. Steamship Co. (N. Y. 
 App.), 30 N. E. Rep. 483. 
 
 ^ It is apprehended that all actions for personal injuries may be 
 ■brought either in trespass or case, but ■when the corporation can only 
 be charged in case and the servant in trespass there can be no joinder. 
 See Parsons v. Winchell, 5 Cush. 592, and §§ 31, 32, ante. 
 
 ' See Moore v. Fitohburg R. R., 4 Gray, 495. And so for a wanton 
 injury to a trespasser. Mead v. Chic. R. I. & Fac. R. R., 68 Mo. 
 App. 92. 
 
 * Hewitt V. Swift, 3 Allen, 420. 
 
68 PERSONAL INJUKIES. [CHAP. II. 
 
 SECTION III. 
 
 LIABILITY OP PASSENGEE CARRIERS FOR ACTS OP INDIVIDUALS 
 OR CORPORATIONS IN PRITITY. 
 
 § 46. Carrier responsible for Negligence of Third Person or Cor- 
 poration acting in Privity with it. — When a passenger, in course 
 of transportation by a carrier, is injured by the negligence of 
 another carrier, or its servant, acting in privity with the first 
 carrier, for the joint purpose of carrying on the common busi- 
 ness, the first carrier will be responsible for the injury. For 
 it is responsible for the safe management of its business, 
 whether performed directly by itself, through its servants and 
 agents, or by another carrier acting with it by arrangement 
 or contract.^ If the negligent act is the joint act of the two 
 carriers, either may be answerable therefor in an action of 
 tort, or both may be joined, or the plaintiff may sue in con- 
 tract the carrier with whom he is himself in privity.^ So 
 where a passenger in a railway car, standing on a side-track, 
 was injured by reason of the car being struck by the car of 
 another corporation, through the negligence of a brakeman 
 
 1 White V. Fitchburg R. R., 136 Mass. 321 ; Peters v. Rylands, 20 
 Penn. St. 497 ; Great Western Railway v. Blake, 7 H. & N. 987; Buxtou 
 V. Northeastern Railway, L. R. 3 Q. B. 547 ; Thomas v. Rhymney Rail- 
 Way, L. R. 5 Q. B. 266 ; and see Musohamp v. Lancashire & Preston 
 Railway, 8 M. & W. 421 ; Readhead v. Midland Railway, L. T. 2 Q. B. 
 412, 4 Q. B. 378. Where two railroads have a traffic interchange of cars, 
 and by the negligence of one of them while making such interchange an 
 employee of the other is killed, the negligent company is liable. Lock- 
 hart V. Little Rock & M. R. R., 40 Fed. Rep. 631. 
 
 2 McElroy ». Nashua & Lowell R. R., 4 Cush. 400; Eaton v. Boston 
 & Lowell R. R., 11 Allen, 500 ; Illidge v. Goodwin, 5 C. & P. 190. Where 
 the management of a railroad was, at the time a person was killed by 
 the negligence of the servants of the railroad, jointly in the hands of the 
 trustees of the mortgage atid the company purchasing from them, under 
 a contract, retaining possession as a security for the purchase-money, 
 but also providing that the trustees should be indemnified for losses by 
 negligence pending the transfer of the property under the contract, both 
 trustees and company are liable, and the plaintiff may recover against 
 either. Lockhart v. Little Rock & M. R. R., 40 Fed. Rep. 631. 
 
§§ 46-47.] PARTIES DEFENDANT. 69 
 
 of the latter corporation, employed by it to couple the two care 
 for the purpose of carrying out a contract between the two 
 corporations for their joint benefit, an action was sustained as 
 against the corporation running the car in which the plaintiff 
 was a passenger.* The same rule applies when the accident 
 is caused by the negligence of a private person in privity with 
 the defendant corporation. Thus where a passenger was in- 
 jured by a collision, and it appeared that the company owning 
 the train had let it for an excursion to a society of persons, 
 and that the plaintiff had purchased his ticket of the treas- 
 urer of the society, it was held that the railroad was liable, 
 it having constituted the treasurer, pro hae vice, its agent.^ 
 The same rule of liability obtains although one of the corpora- 
 tions in privity is a foreign corporation.^ By an application 
 of the principle stated it was held in an action against a cor- 
 poration for injury caused by the negligence of its employees, 
 that it was not a defence that the act from which the injury 
 resulted was not authorized by the charter ; if the corporation 
 clearly recognized the act as done in its business, as by em- 
 ploying agents to superintend it, or receiving profits arising 
 from it : as where a corporation chartered to operate a rail- 
 road, run in connection with the railroad a line of steamboats, 
 by an accident occurring on one of which the plaintiff was 
 injured.* 
 
 § 47. As to Connecting Railroads : SIeepine.CaTs. — If a rail- 
 road corporation receives upon its tracks the cars of another 
 company, places them under the control of its own servants, 
 and draws them by its locomotive over its road to their place 
 of destination, it assumes towards the passengers coming 
 upon its road in such cars the relation of a common carrier 
 of passengers and all tlie liabilities incident to that relation. 
 And this is so although the ticket entitling the passenger to 
 a passage over the defendant road was purchased at a station 
 
 > White p. Fitchbnrg R. R., 136 Mass. 321. 
 
 * Skinner r. London R. R., 15 Jur. 289. 
 
 » Ricfcetts p. Chesapeake & Ohio R. R., 33 W. Va. 433. 
 
 * Hutchinson r. Western & Atlantic R. R., 6 Heisk. 634. And it 
 was said that the fact that the State was the sole owner and stock-holder 
 of the corporation did not exempt it from liability. 
 
70 PEESONAL INJURIES. [CHAP. It, 
 
 of a contiguous road, or of any other authorized agent of the 
 defendant road.^ But where the carrier was running its own 
 car by license or contract over the railroad of another, having 
 no control over such road except the right of running cars 
 over it, it was held that the carrier running the car was not 
 responsible for the misconduct or negligence of the servants 
 of the corporation owning the road.^ The liability of a con- 
 
 1 Schopman v. Boston & Worcester R. K., 9 Cush. 24; Knight ». 
 Portland, Saoo & Portsmouth R. R., 56 Maine, 254; Hood v. New York 
 & New Haven R. R., 22 Conn. 1; Ricketts v. Chesapeake & Ohio R. R., 
 33 W. Va. 433 ; Pennsylvania Co. v. EUett, 132 111. 654. A railway cor- 
 poration sold the plaintiff a ticket to a point beyond the line of its own 
 road, upon the condition that the defendant acted only as the agent of 
 the carrier beyond its own line, and was not responsible beyond its own 
 line ; and that the ticket should not be good for a return passage unless 
 the owner of it should identify himself at the office of the second carrier, 
 and unless the ticket should be properly stamped ; and that the passenger 
 should identify himself whenever requested to do so by the conductors of 
 the road; and that no agent should have authority to vary the terms 
 of the contract. The plaintiff presented himself at the required place 
 and at the proper time before the departure of a train, but no agent was 
 present to perform the service or stamp the ticket. After reaching the 
 defendant's road, the plaintiff was ejected from the train because his 
 ticket was not properly stamped, although he offered to identify himself 
 to the conductor who ejected him. The contract was sustained by the 
 Supreme Court of the United States upon the ground that the defendant 
 was not obliged to accept the ticket until it was properly stamped, and 
 that it was not through the fault of the defendant that no person was 
 present to stamp the ticket at the plaintiff's place of departure. Mosher 
 o. St. Louis, I. M. & S. R. R., 127 U. S. 390. See, apparently contra, 
 Taylor v. Seaboard & Roanoke R. R., 99 N. C. 185; Head v. Georgia 
 Pacific R. R., 79 Ga. 358. 
 
 ^ Sprague v. Smith, 29 Vt. 421, and see Young v. Pennsylvania R. R., 
 115 Penn. St. 112. Where the N. Company had statutory authority to 
 run over the defendants' line, paying a certain toll to the defendants, and 
 the signals at the point of junction between the two lines were under the 
 control of the defendants, and by reason of the negligence of the servants 
 of the N. Company in disobeying these signals a train of the N. Com- 
 pany ran into a train of the defendants, injuring the plaintiff, who was 
 a passenger therein, it was held that he was not entitled to recover. 
 Wright V. Midland Railway, L. R. 8 Exch. 137. Where there was a 
 defect in a truck belonging to the connecting road, which defect could 
 be detected only by a very minute examination, it was held that the 
 defendant, upon whose track the truck was run by the connecting road^ 
 
§ 47.] PARTIES DEPENDANT, 71 
 
 necting carrier does not begin, and the duty of the first carrier 
 is not completed, until there has been an actual delivery of 
 the car to the second carrier ; wherever such delivery may 
 take place.^ If a railway company takes passengers for trans- 
 portation to points upon connecting lines, and advertises so to 
 do without transferring passengers, its liability for accidents 
 to passengers is limited to its own line, in the absence of any 
 special agreement to further extend its liability .^ The reason 
 of the rule applies to cases in which the defendant's train in- 
 cludes cars belonging to third parties which are run by con- 
 tract on the defendant's road for the mutual benefit of the 
 owner of the car and the defendant corporation, as in the 
 common case of sleeping-cars belonging to car companies. In 
 the leading case upon this subject, Harlan, J., said : " The 
 duty of the railroad company was to convey the passenger 
 over its line ; in performing that duty, it could not, consist- 
 ently with the law and the obligations arising out of the na- 
 ture of the business, use cars or vehicles whose inadequacy or 
 insuflSciency for such conveyance was discoverable upon the 
 most careful and thorough examination. If it chose to make 
 no such examination, or to cause it to be made ; if it elected 
 to reserve or exercise no such control, or inspection, from 
 time to time, of the sleeping-cars which it used in conveying 
 passengers, as it should exercise over its own cars, it was 
 chargeable with negligence or failure of duty. The law will 
 conclusively presume that the conductor or porter, assigned 
 by the Pullman Palace Car Company to the control of the 
 interior arrangements of the sleeping-car in which [the plain- 
 tiff] was riding when injured, exercised such control with the 
 assent of the railroad company. . . . Their negligence, or the 
 negligence of either of them, as to any matters involving the 
 
 was not liable for an accident caused by the defect. Sichardson ti. Great 
 Eastern Railway, L. K. 1 C. P. D. 342. See § 50, post. Where two 
 railroads jointly occupy the same tracks, each is liable for the injuries 
 which its employees negligently inflict upon the employees of the other, 
 in the absence of contributory negligence. Omaha & R. V. R. R. v^ 
 Morgan, 40 Neb. 604. 
 
 > Vannatta v. Central R. R. of New Jersey, 154 Penn. St. 262. 
 
 « Penn. R. R. Co. v. Jones, 155 U. S. 333. 
 
72 PERSONAL INJURIES. [CHAP. II. 
 
 safety or security of passengers when being conveyed, was the 
 negligence of the railroad company." ^ 
 
 § 48. So as to NegUgence of Licensee. — The carrier is re^ 
 sponsible for injuries suffered by passengers through the neg- 
 ligence of persons or corporations who, although not in the 
 employ of, or in privity with, the carrier, are yet acting under 
 a license or permission from the carrier, express or implied, 
 to do the act from the negligent doing of which the injury 
 results. Thus where a railway corporation owned the road 
 upon which it was running a car in which a passenger was 
 killed by a collision, the corporation was held to be liable, 
 although the collision was caused by the fault of another 
 train run by the defendant's permission by another company, 
 on the same road.^ So while a passenger waiting in the 
 proper place on a station-platform of the defendant corpora- 
 tion, to make a necessary change from one train to another, 
 was injured by being struck by a mail-bag, thrown, in accord- 
 ance with a custom known to the defendant, by a mail-agent 
 employed by the United States from a mail-car of the corpo- 
 ration, it was held that the defendant was liable, since the 
 accident was one which the defendant might have prevented, 
 either by withholding the use of the mail-car or by stopping 
 the train at the station.^ 
 
 § 49. Railroad Leases, Effect of : Consolidations. — If oneraiI-> 
 way corporation, without authority of law, assumes to lease 
 its road to another, or to an individual, it remains liable for 
 
 1 Pennsylvania Co. v. Hoy, 102 U. S. 451, and see Thorpe v. New 
 York Central & H. R. R. R., 76 N. Y. 406; Dwinelle v. New York 
 Central & H. R. R. R., 120 N. Y. 117; Illinois Central R. R. v. Handy, 
 63 Miss. 609 ; Nevin v. Pullman Palace Car Co., 106 111. 222; Williams v. 
 Pullman Palace Car Co., 40 La. Ann. 417. 
 
 2 Illinois Central R. R. v. Barron, 72 U. S. 90, and see Nelson v. 
 Vermont & Canada R. R., 26 Vt. 717 ; Chicago, R. I. & Pacific R. R. ». 
 McCarthy, 20 111. 385 ; Chicago & Rock Island R. R. ». Whipple, 22 111. 
 105, in which cases it was held that the company owning a railroad was 
 liable for the acts of their lessees who operate the road. Ohio & Mis- 
 sissippi R. R. V. Dunbar, 20 111. 623. 
 
 » Snow V. Fitohburg R. R., 136 Mass. 552. ' 
 
§§ 47-49. J PARTIES DEPENDANT. 73 
 
 injuries caused by the negligence of such corporate or indi- 
 vidual lessee, its servants or agents.^ For the corporation, 
 as being a carrier of passengers for hire, owes a duty to the 
 public which it cannot escape by such attempted delegation 
 although the actual negligence which causes the accident be 
 that of the servants or agents of the corporate or individual 
 lessee with which the actual contract of transportation is 
 made.^ This view of the law is in accordance with the 
 principle already stated, that the primary liability of the 
 carrier rests upon its obligation to perform a public duty and 
 not upon the contract of transportation, independently or in 
 the absence of which the duty may still subsist, and, further, 
 the lease without authority of law being void, the lessee is to 
 be considered the agent of the lessor in operating the road.* 
 In such a case, however, there can be no doubt that the 
 injured party may look to the lessee with whom he has made 
 the contract for damages for the breach of the contract, and 
 it is likely that the lessee may be also liable for such damages, 
 either alone or jointly with his lessor.* It follows, in con- 
 formity to the principles stated, that if an incorporated rail- 
 way company permits another corporation as a construction 
 company, or an individual, to use its franchise by running 
 passenger trains over its road, it will remain responsible for 
 the injurious results of the negligence of the persons operat- 
 
 1 International & Great Northern R. R. v. Underwood, 68 Tex. 713; 
 Lakin v. Williamette Valley & C. R. R., 13 Or. 436; Abbott v. Johns- 
 town, &c. Horse Railroad, 80 N. Y. 27, Folger, J., dissenting. A rail- 
 road corporation, organized under a general railroad act, has no authority, 
 without the consent of the legislature, to lease its road to an individual; 
 and if it has done so, it remains responsible to the public for the manner 
 of operating the road. See Abbott v. Johnstown, &c. Horse Railroad, 
 supra ; Great Northern Railway v. Eastern Counties RaOway, 12 E. L. & 
 E. 224. 
 
 ^ Abbott B. Johnstown, &o. Horse Railroad, 80 N. Y. 27; Nelson v. 
 Vermont & Canada R. R., 26 Vt. 717; Mahoney v. Atlantic & St. Law- 
 rence R. R., 63 Maine, 68; Wasmer v. Delaware, Lackawanna & W. R. R., 
 80 N. Y. 212, and see Redf. Railways, § 142 and notes. 
 
 » Arrowsmith v. Nashville & D. R. R., 57 Fed. Rep. 165; Thomas v. 
 Railroad, 101 U. S. 83. 
 
 * See § 46, ante ; Baltimore & Ohio R. R. o. Rambo, 59 Fed. Rep. 75, 
 16 U. S. App. 277. 
 
74 PERSONAL INJUEIESi [CHAP. 11, 
 
 ing such trains.^ It has been held that a railway company 
 cannot, by a mere lease of its pi'operty, absolve itself from 
 liability for injuries caused by the negligence of its lessee, 
 unless such exemption is provided for in the lease, and is 
 expressly sanctioned by legislative authority ; but that when 
 such provision is made and sanction obtained, the lessee alone 
 becomes liable for its own negligence.'' And there are author- 
 ities which appear to hold, broadly, that a railway corpora- 
 tion leasing its road, or permitting the use of it by another, 
 remains responsible for the negligence of the person or corpo- 
 ration actually managing the road, to the same extent as if 
 the management had remained in its own hands.* "Where 
 two railroad companies whose tracks form a continuous line 
 consolidate by authority of law, they cease to exist and a new 
 corporation is formed, which comprehends them both, and 
 which is liable for injuries for which one of the original 
 companies was liable before the consolidation, since the com- 
 bining companies could not, by a contract between themselves, 
 conclude the rights of persons who had been injured by their 
 torts.* 
 
 § 50. Certain Statute Limitations of the Rule. — Although, 
 generally, the carrier will be liable to a passenger for injuries 
 caused by the negligence of its servants, or of a third person 
 or corporation managing or operating its line, or for the in- 
 jurious results of any defect in its appliances for doing its 
 business which might have been discovered in season to 
 prevent the accident, or, perhaps, for defects which were 
 latent in the means and appliances and so not discoverable 
 
 1 Chattanooga, R. & C. R. R. v. Whitehead, 89 Ga. 190. But a rail- 
 road is not responsible for negligence in the raanageraent of a locomotive 
 when, at the time of the accident, it, and its crew, were rented to and 
 under the control of another railroad. Byrne v. Kansas City, &c. R. R., 
 61 Fed. Rep. 605, 9 C. C. A. 666. 
 
 2 DriscoU V. Norwich & Worcester R. R. , 65 Conn. 230 (by a majority 
 of the court). 
 
 « Aycock V. Raleigh, kc. R. R., 89 N. C. 321 ; Norton v. North Caro- 
 lina R. R., 122 N. C. 910; Benton v. North Carolina R. R., 122 N. C. 
 1007 ; Central R. R. v. Phinazee, 93 Ga. 488. 
 
 * State V. Bait. & Lehigh R. R., 77 Md. 489. 
 
§§ 49-50.] PARTIES DEFENDANT. 75 
 
 on inspection, although the defendant did not construct the 
 defective road or vehicle ; '■ yet there is a class of cases in 
 which the liability of the carrier is limited by the terms of 
 the statute creating the liability so that he will be answerable 
 only for specific and actual negligence on the part of himself 
 or his servants. Thus in the Public Statutes of Massachu- 
 setts, c. 112, sec. 212, providing a reinedy, civil or criminal 
 in form, when, by the negligence of a carrier the life of a 
 passenger is lost, such remedy to be pursued by the adminis- 
 trator of the deceased passenger, it is provided that damages 
 shall be assessed " with reference to the degree of culpability 
 of the corporation, or of its servants or agents." In a case 
 in which action was brought to recover for the death of per- 
 sons who had been killed by reason of defects existing in the 
 road-bed of a railroad owned by the Commonwealth but oper- 
 ated by the defendant corporation as the agent of the Com- 
 monwealth, the defect not being discoverable on ordinary 
 inspection and having existed before the defendant corpora- 
 tion took possession of the road, the court said, " This lan- 
 guage imports that there must be some degree of culpability 
 on the part of the corporation or of its servants, and is not 
 satisfied by showing that the corporation assumed a contract- 
 ual or quasi contractual responsibility for third persons who 
 were not its servants. Suppose, for instance, that the defect 
 in the construction of the road was unknown, both to the 
 defendant and to the Commonwealth, and could not have 
 been discovered by either through the use of any degree of 
 care, the fact that it was known to the private corporation 
 that originally built the road could not be said to show cul- 
 pability on the part of the defendant, except by a wilful mis- 
 application of words. . . . Suppose that the defect was known 
 to the Commonwealth, and was not known and could not have 
 been known to the defendant, the defendant was not negligent, 
 whatever might have been the liability at common law." ^ 
 
 * See Grote v. Chester & Holyhead Railway, 2 Exch. 251, 255; Francis 
 V. Cockrell, 5 Q. B. 184, 501 ; Hegeman v. Western R. R., 13 N. Y. 9 ; 
 Philadelphia & Reading R. R. v. Anderson, 94 Penn. St. 351, 859; Pen- 
 dleton V. Kinsley, 3 Cliff. 416, 421 ; Richardson v. Great Eastern Railway, 
 L. R. 1 C. P. D. 342, as cited, § 47 n., ante. 
 
 * Littlejohn v. Fitchburg R. R., 148 Mass. 478. 
 
76 PERSONAL INJURIES. [CHAP, H. 
 
 SECTION IV. 
 
 OP THE LIABILITY OP PUBLIC OPPICEBS. 
 
 § 51. Rule of Respondeat Superior does not apply to. — The ^ 
 
 doctrine of respondeat superior, being founded upon the sup- 
 position that the master derives some benefit from the act of 
 the servant, does not apply to a public oflBcer as to the agents 
 whom he employs in the discharge of a public duty.' Thus 
 the clerks of commissioners intrusted with the conduct of 
 public works are not liable in damages for an injury caused 
 by the negligence of artificers in constructing such works 
 employed under their authority.^ So it is held, generally, 
 that municipal corporations are not liable for the negligence 
 of surveyors or other ofificers intrusted with the construction 
 or maintenance of highways, such officers being employed 
 under a general law to perform services in which the corpo- 
 ration has no particular interest and from which it derives 
 no especial emolument or advantage.^ And the trustees of a 
 public road empowered by law to make contracts for cleaning 
 the road and to light it at night, are not liable for the negli- 
 gence of their agents employed by them for this purpose.* 
 So where the statute imposed upon school committees, gener- 
 ally, the duty of keeping the public schoolhouses in repair, 
 and of providing all things necessary for the comfort of the 
 pupils attending school in them, it was held that such a com- 
 mittee might lawfully order a tree on a schoolhouse lot to be 
 cut down, and that the committee was not liable for the neg- 
 
 1 McKenna v. Kimball, 145 Mass. 555; Jewett v. New Haven, 38 
 Conn. 368; Torbush v. Norwich, 38 Conn. 225; Hardy v. Keene, 52 N. 
 H. 370; Edgerly v. Concord, 59 N. H. 841, 62 N. H. 8 ; Wakefield v. 
 Newport, 60 N. H. 374, 62 N. H. 624 ; Heller v. Sedalia, 53 Mo. 159. 
 
 ^ Hall V. Smith, 2 Bing. 156, and see also Humphreys v. Mears, 1 
 Man. & R. 187. 
 
 8 White V. Phillipston, 10 Met. 108; Walcott v. Swampscott, 1 Allen, 
 101 ; HafEord v. New Bedford, 16 Gray, 297 ; Hennessey v. New Bedford, 
 153 Mass. 260; McCann v. Waltham, 163 Mass. 344; iaut see Denver v. 
 Williams, 12 Col. 473. 
 
 « Harris v. Baker, 4 M. & S. 27. 
 
§§ 51-52.] PARTIES DEFENDANT. 77 
 
 ligence of the persons whom they had employed to execute 
 their order.^ As a general rule, persons intrusted with the 
 performance of a public duty as trustees for public purposes, 
 discharging it gratuitously, and not being personally guilty of 
 negligence, are not responsible for injuries sustained by an 
 individual through the negligence of workmen employed under 
 them.^ In the absence of a statutory remedy, either express 
 or arising by necessary implication, municipal corporations 
 are not liable for damages resulting in loss of life from the 
 acts of mobs or riotous assemblies, no matter how negligent 
 the officers of the muuicipality may be.^ 
 
 § 52. When Personally liable. — When an injury is suffered 
 by the act of a public officer not don^ within the scope of his 
 authority as an officer, or by the act of his private servant or 
 agent, not done in the performance of the officer's public duty, 
 or if the officer do negligently that which it is his duty to do, 
 the injured person may have an action against him.* But the 
 right of action is carefully limited. It has been said : " When 
 the law renders a public officer liable to special damages for 
 neglect of duty, the cases are those in which the services of 
 the officer are not gratuitous or coerced, but voluntary, and 
 attended with compensation, and where the duty to be per- 
 formed is entire, absolute, and perfect." * And, in order to 
 make the officer responsible, the duty imposed upon him must 
 be a personal and ministerial duty, and one which he is under 
 
 ^ McEeona v. Kimball, 145 Mass. 555. So a town is not liable to a 
 traveller injured by the falling of a flagstaff, in a highway, which em- 
 ployees of the selectmen of the town were engaged in taking down, 
 Wakefield v. Newport, 62 N. H. 624 ; nor is a city liable for the negli- 
 gence of a driver of a street sprinkling cart, Conelly v. Nashville, 100 
 Tenn. 262. 
 
 2 See § 44 6, ante, and cases cited ; Duncan v. Findlater, 6 CI. & Fin. 
 894; HoUiday v. St. Leonards, 11 C. B. (n. s.) 192. 
 
 ^ Gianfortone v. New Orleans, 61 Fed. Rep. 64 ; New Orleans «* 
 Abbagnato, 23 U. S. App. 533. 
 
 * Hall V. Smith, 2 Bing. 156; Jones v. Bird, 5 B. & Aid. 837; Hum- 
 phreys V. Mears, 1 Man. & R. 187 ; Bartlett v. Crozier, 15 Johns. 250, 17 
 Johns. 450; Bailey ». Mayor of New York, 3 Hil), 581; Sawyer v. Corse, 
 17 Gratt. 230; Butler v. Ashworth, 102 Cal. 663. 
 
 ' Kent, C, in Bartlett v. Crozier, 17 Johns. 439, 450. 
 
78 PERSONAL INJURIES. [CHAP. II. 
 
 the obligation and clothed with the authority to perform, both 
 in the means furnished him and the legal authority to act 
 without the control of superior oflBcers.'^ Thus it has been 
 held that the selectmen of a town who are engaged in build- 
 ing a public sewer in one of its streets, are liable for injuries 
 caused to a person employed by them to lay a pipe in the 
 bottom of a trench, by reason of their failure to provide a 
 proper support for the sides of the trench ; and the court say : 
 ' " In building the sewer, they were performing a ministerial 
 duty for the benefit of the town. . . . The sewer when built 
 belonged to the town ; but its construction was not authorized 
 by the town in the performance of a duty imposed by general 
 laws upon it and other towns, and upon cities, for the general 
 benefit, like those, for instance, requiring schools for children 
 between certain ages." ^ It has been intimated that, in order 
 to support an action, there must have been active misfeasance 
 on the part of the officer, but it is believed that this doctrine 
 is not supported by the weight of authority.^ 
 
 1 Nowell V. Wright, 3 Allen, 166. 
 
 2 Breen v, Field, 157 Mass. 277. Where the exclusive control of com- 
 mon sewers in a city was delegated to the board of aldermen, but the 
 sewers, when constructed, became the property of the city, it was held 
 that the board of aldermen acted as the agents of the city, and that the 
 city was liable for any negligence in the course of construction by which 
 injury was caused to another. Murphy v. Lowell, 130 Mass. 564. See 
 § 56, post. 
 
 » See Nowell v. Wright, supra. But in this case an action was sup- 
 ported against a drawtender, appointed by the governor, who had opened 
 the draw in an improper manner, and so injured the plaintiff, the act of 
 the defendant being held not non-feasance merely but active misfeasance. 
 In Williams v. Adams, 3 Allen, 171, it was held that a prisoner confined 
 under sentence in a house of correction, could not maintain an action 
 against the master thereof for neglect to provide him clothing and fire, 
 whereby he was injured, in the absence of proof of express malice, or such 
 gross negligence as to authorize the inference of malice on the part of the 
 defendant. 
 
§§ 52-53.] PAETIES DEPENDANT. 79 
 
 SECTION V. 
 
 OF THE LIABILITY OF MUNICIPAL COEPOEATIONS AT COMMON LAW. 
 
 (a) Of Quasi Corporations, generally. 
 
 § 53. Not liable at Common Law, in the United States, Rea- 
 sons of the Rule. — The great weight of American authority is 
 in favor of the rule that a private action cannot be maintained 
 against a town, county, or other quasi public corporation, for 
 the neglect of a public dijty, or of a duty imposed alike on all 
 similar corporations, unless the liability to such an action 
 is expressly created by statute.^ This rule rests, primarily, 
 
 1 Mower v. Leicester, 9 Mass. 247 ; White v. Phillipston, 10 Met. 108 ; 
 Sawyer v. Northfield, 7 Cush. 490; Bigelow o. Randolph, 14 Gray, 541; 
 Hill V. Boston, 122 Mass. 344 ; Adams v. Wiscasset Bank, 1 Greenl. 361 ; 
 Reed v. Belfast, 20 Maine, 246 ; Mitchell v. Rockland, 52 Maine, 118 ; 
 Farnum v. Concord, 2 N. H. 372; Baxter v. Winooski Turnpike Co., 22 
 Vt. 114; Hyde v. Jamaica, 27 Vt. 443; State v. Burlington, 36 Vt. 521; 
 Buchanan v. Barre, 66 Vt. 129; Willett v. St. Albans, 69 Vt. 330; Chid- 
 seyi!. Canton, 17 Conn. 475; Taylor v. Peokham, 8 R. I. 349; Bartlett v. 
 Crozier, 17 Johns. 439; Sussex Freeholders v. Strader, 18 N. J. L. 108; 
 Niles Commissioners v. Martin, 4 Mich. 557; Hamilton Commissioners v. 
 Mighels, 7 Ohio St. 109 (overmling Brown Commissioners v. Butt, 2 
 Ohio, 348) ; Barnes v. District of Columbia, 91 D. S. 440 (and see cases 
 cited, post, §§ 60 et seq.) ; Hedges i'. Madison, 6 111. 567 ; Waltham v. Kem- 
 per, 55 111. 346 (overruling South Ottawa v. Foster, 20 111. 296); Bussell 
 V. Steuben, 57 111. 35; White u. Bond, 58 111. 297. In Deane v. New 
 Milford, 5 W. & S. 54.5, it was held that an action would lie at common 
 law against a township to recover damages sustained by reason of the 
 failure of its supervisors to keep a road in repair, and this doctrine seems 
 to have been followed in later cases in Pennsylvania. See Humphrey v. 
 Armstrong, 56 Penn. St. 204; Rapho v. Moore, 68 Penn. St. 404. So in 
 Maryland, under the constitution and laws of that State, charging the 
 commissioners of counties with the duty of maintaining roads and bridges, 
 it was held that, this duty being imposed by statute and no penalty being 
 prescribed for the non-performance of it, the right of action accrued at 
 common law to the person injured by the breach of duty, since otherwise 
 there would be a violation of right without a remedy. Anne Arundel 
 Commissioners !>. Duckett, 20 Md. 468. It is said, in Indiana, that the 
 rule that counties are liable for injuries caused by defects in bridges 
 which they are bound to keep safe, but negligently fail so to do, is the 
 law "of that State although there is no statute creating such liability. See 
 Parke County v. Wagner, 138 Ind. 609. 
 
80 PERSONAL INJUEIES. [CHAP. II. 
 
 upon the ground that, generally, in the United States, there 
 exists no contract, express or implied, between the State and 
 the several counties, towns, or townships into which it is 
 subdivided ; and no grant of any special power or privilege, 
 which can be supposed to have been voluntarily accepted by 
 the quasi corporation upon the condition of its performing the 
 public duty. Such quasi corporations are considered as invol- 
 untary territorial and political divisions of the State, estab- 
 lished for purposes of government and municipal regulation ; 
 so that those cases are not to be regarded as authorities upon 
 the question of liability which have been decided upon a dis- 
 tinction between the exercise of special powers and the exer- 
 cise of the general powers which belong alike to all quasi 
 public corporations, or upon the ground that the special 
 powers granted are in the nature of privileges, which have 
 been accepted upon the implied condition of performing the 
 public duties growing out of them.-' 
 
 § 54. Same Subject. — Thus the rule, except in so far as 
 it rests upon the general principles of the common law, arises 
 out of the peculiar conditions of municipal existence in the 
 United States, which conditions do not exist in England. It 
 is said : " There is no uniformity in the powers and duties of 
 English municipal corporations. . . . The powers and duties 
 of each municipality depend on its own individual grant or 
 prescription. Their corporate franchises are held of the 
 crown by the tenure of performing the conditions upon which 
 they have been granted, and are liable to forfeiture for breach 
 of the conditions. . . . They are not, like towns, general 
 political and territorial divisions of the country, with uniform 
 powers and duties, defined and varied, from time to time, by 
 general legislation. Towns do not hold their powers, ordi- 
 narily, under any grant from the government to the in- 
 dividual corporation ; or by virtue of any contract with the 
 government, or upon any condition express or implied." And 
 so, " in England, where a public duty is imposed on a munici- 
 pal corporation as a condition upon which the corporate 
 franchises or corporate property have been granted ; or where 
 1 Eastman v. Meredith, 36 N. H. 284. 
 
§§ 53-55.] PARTIES DEPENDANT. 81 
 
 the corporation holds its franchises or property by a prescrip- 
 tion from which a grant or like condition, may be inferred, 
 it has been held that any individual may maintain an action 
 against the corporation to recover damages for an injury 
 which he has suffered from neglect to perform the public 
 duty." » 
 
 § 55. Applications of the Role. — The rule has been applied 
 to actions for injuries occasioned by the negligent or defective 
 construction of buildings erected by a county or town, pursu- 
 ant to a duty imposed upon the municipality by a general law 
 for public objects.^ Thus a county was held not to be liable 
 to an action for the negligent or improper construction of a 
 court-house by reason whereof a witness summoned to attend 
 court therein was injured.^ Assuming it to be the duty of a 
 town to provide a safe and suitable place for a town meeting, 
 yet a citizen who suffers a private injury in the exercise of 
 his public rights by reason of the neglect of the town to fulfil 
 its duty in this regard, cannot maintain an action against the 
 town to recover damages for the injury.* Nor is a town 
 which has erected a school-house, in the performance of a 
 duty imposed upon it by a general law, liable to an action for 
 an injury snstained by a scholar attending school in the 
 building caused by its imperfect or dangerous construction,^ 
 or by a dangerous excavation left in the school-house yard.^ 
 
 1 Per Ferley, J., in Eastman v. Meredith, 36 N. H. 284, and see 
 Detroit r. Blackeby, 24 Mich. 84, as cited, § 60, post. In actions by or 
 against quasi corporations, as towns, having no corporate funds, each 
 inhabitant or corporator is a party to the action, because his private 
 property is subject to be taken to satisfy the judgment to be obtained in 
 ihe action. The case is otherwise as to corporations proper, because, in 
 case of judgment obtained against these, no property is subject to be 
 taken except the corporate property. Adams v. Wiscasset Bank, 1 
 Greenl. 361. 
 
 « Sussex Freeholders o. Strader, 18 N. J. L. 108. 
 
 * Hamilton Commissioners v. Mighels, 7 Ohio St. 109. 
 « Eastman v. Meredith, 36 N. H. 284. 
 
 » Hill B. Boston, 122 Mass. 344. So as to a City Hall provided for the 
 use of municipal ofBcers, Snider v. St. Paul, 51 Minn. 466. 
 
 * Bigelow V. Randolph, 14 Gray, 541. It is held that a city is not 
 liable for the negligence of its firemen in driving a hose-carriage against 
 
 6 
 
82 PERSONAL INJURIES. [CHAP. H. 
 
 A municipality discharging the public duty of maintaining an 
 insane asylum, is not liable to one of its employees for the 
 negligence of another in carrying on the work of the 
 asylum.i The rule has often been applied in the case of 
 actions brought against municipalities for injuries received by 
 reason of defects in highways and bridges. And although 
 the statute imposes upon tiie town the duty of keeping its 
 highways safe and convenient. for travellers, and provides a 
 remedy by action for one injured by the failure of the town 
 so to do,2 the town will not be liable for maintaining or per- 
 mitting a common nuisance to exist within the limits of the 
 highway, unless this constitute a dangerous defect.* So if a 
 traveller sustain damage by reason of the negligence of an 
 abutter on the highway, the town is not answerable therefor 
 under a statute which requires the town to keep the highway 
 in repair, unless the act of the abutter cause an obstruction 
 or defect in the way.* 
 
 § 56. Rule of Respondeat Superior applied to Municipal 
 Corporations. — Since a corporation can act only by its ser- 
 vants and agents, it is obvious that the negligence of such 
 servants and agents is the negligence of the corporation. 
 But the rule of respondeat superior does not apply as to the 
 acts of a public ofiBcer, or his agent, engaged in the discharge 
 of a public duty.* Thus where a municipal corporation elects 
 or appoints an oflScer, in obedience to an act of the legisla- 
 ture, to perform a public service in which the corporation has 
 
 the plaintiff, Hafford v. New Bedford, 16 Gray, 297 (and see Fisher v. 
 Boston, 104 Mass. 87; Tainter ». Worcester, 123 Mass. 311); nor to its 
 employee for an injury caused him by the negligent construction or 
 management of its fire-signal system. Fettingell v. Chelsea, 161 Mass. 
 368. 
 
 1 Hughes V. Monroe County, 147 N. Y. 49. See § 44 6, ante. 
 
 2 See §§ \&Q et seq., post. 
 
 ' State V. Burlington, 36 Vt. 521. But a dangerous nuisance existing 
 in a highway is a defect for which the municipality is responsible. 
 Hewison v. New Haven, 37 Conn. 475. See cases cited, §§ 174 et seq., 
 post. 
 
 * Taylor v. Peckham, 8 B. I. 349. 
 
 * See § 51, ante. 
 
§§ 55-56.] PASTIES DEPENDANT. 83 
 
 110 particular interest and from which it derives no special 
 benefit or advantage in its corporate capacity, but which it is 
 bound to see performed in pursuance of a duty imposed by 
 law for the general welfare of its inhabitants or of the com- 
 munity, such oflScer cannot be regarded as the servant or 
 agent of the municipality, for whose negligence or want of 
 skill in the performance of his duties the municipality can be 
 held liable. To the acts or conduct of an officer so appointed 
 or elected, the maxim respondeat superior is not applicable.^ 
 The rule has often been applied in Massachusetts, in cases of 
 accidents arising from the alleged negligence of road sur- 
 veyors appointed under a general law, their servants or 
 agents ; * and so as to road commissioners elected by a town 
 under statute authority ; ^ or a superintendent of streets in a 
 city elected by the board of aldermen, under a mandatory 
 provision in the city charter.* But where the officials placed 
 in charge of the streets are appointed under the direction of 
 the immediate government of the municipality, and so are 
 the mere instruments to perform for the municipality its 
 corporate functions, the municipality is liable for the negli- 
 gence of such officials.^ As the rule is sometimes stated, the 
 
 1 Walcott V. Swampscott, 1 Allen, 101. 
 
 * White V. Phillipston, 10 Met. 108 ; Walcott e. Swampscott, 1 Allen, 
 101; HafEord v. New Bedford, 16 Gray, 297; Murphy w. Lowell, 124 
 Mass. 564 ; Hennessey v. New Bedford, 153 Mass. 260. 
 
 * McManus v. Weston, 164 Mass. 263. 
 
 * Jensen «. Waltham, 166 Mass. 344. 
 
 5 Bieling v. Brooklyn, 120 N. T. 98. And it was held in this case 
 that the fact that a statute purported to exempt the municipality from 
 liability for any misfeasance or nonfeasance of its common council, or of 
 any of its city officers, did not relieve it from liability for its failure to 
 discharge any of its corporate functions, one of which was the duty of 
 keeping its streets in repair. Where the common council of a city had 
 power to open, alter, and keep in repair streets, and to raise money by 
 taxation to provide for the expense of the same ; but a street commis- 
 sioner was elected by the people and was apparently not subject to be 
 removed by the council, to whom was committed the care of streets and 
 sidewalks and the duty of keeping them in repair and free from defects ; 
 it was held, notwithstanding, that the commissioner was simply an agent 
 of the municipality, which remained liable for injuries arising from 
 defects in streets or sidewalks ; especially in view of the fact that the 
 city charter provided that written notice of such injuries should be given 
 
84 PERSONAL INJURIES. [CHAP. II. 
 
 municipality is liable for the negligence of its agents in the 
 exercise of merely ministerial powers, but not in the exercise of 
 judicial discretion. Thus the municipality, by its agents, acta 
 judicially in adopting a plan of public improvement, and min- 
 isterially in carrying it out.^ Thus where the ordinance of a 
 city prescribes the manner in which certain work requiring 
 excavations in its streets shall be done, requires that an ofl&cer 
 of the city shall supervise the work, the failure of such super- 
 vision will render the city liable for resulting accidents.^ 
 
 (b) Of Certain Exceptions to the Rule. 
 
 § 57. Possible Ezception to the Rule in Cases of Misfeasance. 
 — There are cases which hold that a municipal corporation, 
 whether it be a quasi corporation or an incorporated city or 
 town, may be liable at common law for personal injuries 
 which result from the negligence of its servants or agents in 
 doing a work requiring special care, such negligence being 
 something more than a mere omission of duty.^ Thus it was 
 held in New York that a city was liable for the negligence of 
 its servants in building a bridge, under the authority of the 
 legislature, although the duty of maintaining and keeping the 
 bridge in repair was imposed by law upon private parties ; 
 that is, upon the pier proprietors.* But it is to be observed 
 
 in writing to the mayor or conncil in order to entitle the injared party to 
 maintain an action. Denver v. Williams, 12 Colo. 473. The duty to 
 repair streets, having once accrued, cannot be avoided because auxiliary 
 powers are subsequently conferred by statute upon the police department. 
 Kunz B. Troy, 104 N. Y. 344. Where an accident occurred in front of 
 property belonging to the city, but in charge of commissioners appointed 
 by the governor of the State, it was held that it was the duty of the city 
 to keep the sidewalk in repair. Osborne v. Detroit, 32 Fed. Kep. 36. 
 1 Chicago V. Sebeu, 165 111. 371 ; Love v. Raleigh, 116 N. C. 296. 
 ' Augusta V. Cone, 91 Ga. 714. A municipality, having the general 
 power to construct sewers, cannot be permitted to allege as an excuse for 
 its negligence in such construction, whereby a person, employed in the 
 construction by its officials, is injured, that the sewer was not legally 
 established. Norton v. New Bedford, 166 Mass. 48. See Coan v. Marl- 
 borough, 164 Mass. 206. 
 
 » Detroit v. Blaokeby, 21 Mich. 84. 
 
 * CuuM V. Mayor of Albany, 2 Barb. 190. See Weet «. Brockport, 
 16 N. Y. 161. 
 
§§ 56-57.] PARTIES DEPENDANT. 85 
 
 that the later cases in New York do not admit any distinc- 
 tion in principle, but hold generally, in cases of highway acci- 
 dent, that an incorporated municipality is liable at common 
 law to one injured by a defect in a highway, whether such 
 defect be the result of the defendant's misfeasance or of 
 mere nonfeasance.^ In Massachusetts, however, where the 
 liability of all municipalities is considered to be derived from 
 the statute only, it was held that a town was liable at com- 
 mon law for personal injuries caused by the negligence of its 
 agents in building a bridge. The court reaffirmed the gen- 
 eral rule, as often Jaid down in Massachusetts, that a private 
 action will not lie against a town to recover damages sus- 
 tained in consequence of the negligence of its agents in the 
 performance of a duty which, under the requirement or 
 authority of law, the town has assumed with a sole view to 
 the general benefit, unless such action is given by statute, 
 but declared that the duty of building a road or bridge did 
 not fall within the rule, and that when the town, voluntarily 
 or by compulsion, had assumed that duty, it would be re- 
 sponsible for the negligence of its servants and agents en- 
 gaged in the work.^ 
 
 1 See cases cited § 61, post. 
 
 * Dohei'ty v. Braintree, 148 Mass. 495. Whether or not the distinc- 
 tion recognized in this and other cases is to be justified upon general 
 grounds, the reasoning upon which the court in Massachusetts rests the 
 distinction does not seem to be clear. The court cited, as authority 
 to the point decided, a line of cases in which the cause of action was 
 not neglect in the performance of a public corporate duty, rendering a 
 public work, as a road or bridge, defective, and so unfit for the purpose 
 for which it was designed, but the doing of a wrongful act causing a 
 direct injury to the property of another, outside the limits of the public 
 work; in which cases the municipality is, at common law, liable to an 
 action of tort to the same extent that any corporation or individual would 
 be liable for similar acts. Thus if, in constructing or maintaining a 
 bridge or culvert, the municipality causes water to flow back or injure 
 the land of another, it is liable. See Anthony v. Adams, 1 Met. 264; 
 Lawrence v. Fairhaven, 5 Gray, 110; Perry v. Worcester, 6 Gray, 544; 
 Wheeler v. Worcester, 10 Allen, 591 ; Stackhouse v. Lafayette, 26 Ind. 
 17 ; Ross V, Madison, 1 Ind. 281. The same rule is applied in the case 
 of sewers. Proprietors of Locks & Canals v. Lowell, 7 Gray, 223 ; Hil- 
 dreth v. Lowell, 11 Gray, 345 ; Haskell v. New Bedford, 108 Mass. 208; 
 Delmonico v. Mayor of Kew York, 1 Sandf . 226. Other cases in which 
 
86 PERSONAL INJUEIEJS. [cHAP. If, 
 
 § 58. Acts done for Special Benefit or Ximolument. — It is 
 obvious that every municipality, whether it be a quasi corpo- 
 ration merely, as a town or county, or whether it exist by 
 virtue of a special act of incorporation, is invested with and 
 exercises two kinds of powers, the one governmental and 
 public as being an attribute of sovereignty, and the other 
 private, these being held in the same manner and subject to 
 the same liabilties as would attend their exercise by a private 
 person.^ And in so far as the municipality exercises its quasi 
 private right, as in making contracts or entering into employ- 
 ments for its own benefit, it becomes liable at common law in 
 the same manner aiid to the same extent as would a private 
 person entering into like relations, or engagements. In 
 other words, when the municipality owes a specific duty to 
 an individual, an action will lie for a breach of that duty 
 whenever such breach has occasioned an injury to the individ- 
 ual; but if the corporation owe a duty to the public, for a 
 neglect to perform it, there is no private remedy at common 
 law.^ Thus if the municipality engage in an enterprise 
 which, although for the benefit of all the individuals compos- 
 ing it, is not undertaken in the discharge of a public duty but 
 for its own benefit, advantage, or emolument, as by receiving 
 rents or otherwise, in the same way that a private owner 
 might do;^ in such a case the municipality may be held 
 liable in the same way as a private owner might be liable 
 
 this rule has been applied in Massachusetts are Hawks v. Charlemont, 
 107 Mass. 414 ; Deane v. Randolph, 132 Mass. 473, and Waldron v. Haver- 
 hill, 143 Mass. 582. The rule governing these cases was discussed in the 
 leading case in Massachusetts of Hill v. Boston, 122 Mass. 344, 358, and 
 it seems that they are clearly to he distinguished from the case of Doherty 
 V. Braintree. Other cases in which municipal corporations have been 
 held liable for consequential injuries to property caused by the negligent 
 construction of a public work are Rochester White Lead Co. v. Rochester, 
 3 N. Y. 463 ; Mills v. Brooklyn, 32 N. Y. 489; Barton ». Syracuse, 36 
 N. Y. 54; Rhodes ». Cleveland, 10 Ohio St. 159; McCombs v. Akron, 
 15 Ohio, 474. 
 
 1 Lloyd r. Mayor of New York, 1 Selden, 374. 
 
 » Sussex Freeholders v. Strader, 18 N. J. L. 108. 
 
 * Scott V. Mayor of Manchester, 2 H. & N. 204, 210 | Bailey v. Mayor 
 of New York, 3 Hill, 531, 539; Western Savings Fund Society v. Phila- 
 delphia, 31 Penn. St. 185, 189 ; Barron v. Detroit, 94 Mich. 601. 
 
§§ 57-58.] PARTIES DEPENDANT. 87 
 
 whose negligence in the management or use of his property 
 causes an injury to another.^ So where a building belonging 
 to a city was used in part for municipal purposes, but in con- 
 siderable part as a source of revenue, being let for rent, it 
 was held that the city might be liable for injuries resulting 
 from the defective approaches to the building, these being 
 within the control and care of the city.^ So where the munic- 
 ipality derived a profit from the carrying on of gas works 
 and a private person was injured by the negligence of its 
 servant engaged in laying the gas pipes, the corporation was 
 held responsible for the injury .^ So where a municipal cor- 
 poration was granted a special power to supply water and gas 
 and to charge- rates for the use thereof, it was held respon- 
 sible for the negligence of its agents in carrying out this 
 power.* And where the electrical bureau of a city is a part 
 of the revenue producing department, its employees are the 
 servants of the city and the maxim respondeat superior 
 applies.* A municipality constructing a sewer, from which 
 
 1 Hill V. Boston, 122 Mass. 344 ; Eastman v. Meredith, 36 N. H. 289- 
 294 ; Weet v. Brockport, 16 N. Y. 161 n. 
 
 2 Oliver v. Worcester, 102 Mass. 489. See Tha3'er v. Boston, 19 Pick. 
 511 ; Buchanan ». Barre, 66 Vt. 129. Where a city was held liable for 
 an injury caused by the falling of a decayed limb from a tree in a public 
 park, the charter of the city giving it the exclusive control of the public 
 parks, the decision was upon the ground that the duty to keep the parks 
 in a safe condition for public use and travel was strictly a private duty. 
 Jones V. New Haven, 34 Conn. 1, as explained in Hewison v. New 
 Haven, 37 Conn. 475. On the other hand, it was held that a city 
 engaged in constructing a public school-house upon its land is not liable 
 for injuries occasioned to a traveller upon an adjoining highway through 
 the negligence of the servant of the city in blasting rook while excavat- 
 ing for the foundation, since both the duty of building the school-house 
 and of keeping the highway safe are public duties. Howard v. Worces- 
 ter, 153 Mass. 426. Where a city was filling up an abandoned public 
 reservoir for the purpose of using the land for some valuable and profit- 
 able purpose, it was held to be liable for the negligence of its servants 
 in charge of the work in the same manner as a private owner would be. 
 Clark B. Manchester, 62 N. H. 577. 
 
 » Scott V. Mayor of Manchester, 1 H. & N. 59, 2 H. & N. 204. See 
 Coe V. Wise, 5 B. & S. 440, 475. 
 * Mayor of New York v. Furze, 3 Hill, 612. 
 6 Bodge o. Philadelphia, 167 Penn. St. 492. 
 
88 PERSONAL INJURIES. [CHAP. II. 
 
 under its charter it may derive an income, is liable for its 
 negligence in the manner of doing the work ; ^ and, in 
 Massachusetts, it is said to be the settled rule that, because 
 sewers are built and maintained partly for the private benefit 
 and advantage of the abutters, who pay in part for such 
 advantages, and because the charge of sewers is not an 
 obligation imposed by law without the assent of the munic- 
 ipality, but voluntarily assumed, a municipality is liable to 
 a private action for negligence in building and maintaining 
 them.2 The defendant corporation was held liable for a 
 personal injury suffered from the dangerous and negligent 
 construction of machines in a wash-house, which it had been 
 authorized by statute to erect, and for the use of which the 
 plaintiff and others paid compensation.^ A municipal cor- 
 poration using an ice boat to clear the channel in its harbor, 
 but which, by authority of its charter, permits such boat to 
 be used in towing operations for its own gain, assumes the 
 responsibility for accidents occurring during such towage, by 
 the negligence of its officers.* Where a farm attached to an 
 almshouse was carried on by the town so as to produce a 
 profit, it was held that the town was responsible for an acci- 
 dent occurring through the negligence of its agent who 
 managed the farm.^ But the fact that a city will derive an 
 
 ^ Ostrander v. Lansing, 111 Mich. 693. 
 
 2 Child V. Boston, 4 Allen, 41 ; Murphy v. Lowell, 124 Mass. 564 ; 
 Coan V. Marlborough, 164 Mass. 208. 
 
 * Crowley v. Mayor of Snnderland, 6 H. & N. 565. For illustrations 
 of the rule in cases of injuries to property, see Riddle v. Proprietors of 
 Locks and Canals, 7 Mass. 169; Mersey Docks v. Gibbs, L. R. 1 H. L. 
 93, 11 H. L. Cas. 686 ; Pamaby v. Lancaster Canal, 11 A. & E. 223, 3 
 N. & P. 523, 3 P. & D. 162. 
 
 * Philadelphia v. Gavagnin, 17 U. S. App. 642. 
 
 * NefE V. Wellesley, 148 Mass. 487. Upon the general principle that 
 municipal corporations are not liable to private actions for omissions or 
 neglect in the performance of a public duty imposed upon them by law, 
 or for that of their servants engaged therein, when such corporations 
 derive no benefit therefrom in their corporate capacity, it was held in 
 Massachusetts, that a city was not liable for personal injuries occa^oned 
 to an inmate of its House of Industry by the negligence of the officers and 
 servants employed by its board of directors of public institutions to ■ 
 administer the afiairs of the House of Industry, although, at the timet of 
 
§ 58.] PARTIES DEPENDANT. 89 
 
 incidental advantage or profit from the construction of a 
 street through its own land, by reason of an increase in the 
 
 the injury, such inmate was engaged in labor from which the city derived 
 a profit. It was contended, on the part of the plaintiff, that although 
 the institution was maintained by the city primarily for the public 
 benefit, yet that it had embarked in an enterprise partly commercial, and 
 so should be held liable. The court said that it did not " perceive auy 
 reason why the city should be held responsible because some income is 
 derived from the labor of the inmates. It is required by the statute that 
 these inmates should be kept at work, but the institution is not conducted 
 with a view to pecuniary profit. It is not suggested that the expenses of 
 maintaining the workhouse are met by what is derived from the labor of 
 the inmates, or that any profit above them is made. Even if the entire 
 expense is not met by taxation by reason of the profit thus derived, such 
 profit is purely incidental. The object and purpose of the workhouse and 
 the conduct of it are not thus shown to be of the nature of a business. 
 It only appears that as a public institution it is managed in a judicious 
 and economical manner." Curran r. Boston, 151 Mass. 505. In Bailey 
 V. Mayor of New York, 3 Hill, 581, the water commissioners of the city 
 of Kew York, who had made a contract with third persons to buUd a 
 dam on the Croton River, for the purpose of creating a water supply, 
 were held, under the special act authorizing the city to do the work, to be 
 the agents of the corporation, which therefore was held liable for injuries 
 occasioned by the negligence of the workmen employed in the work. In 
 this case it was considered that, in exercising the powers conferred by the 
 act, the city was engaged in an enterprise for private emolument just as a 
 private individual might be. The doctrine stated in the text has been 
 given a very broad application in certain cases which hold that the emolu- 
 ment to be derived from the work or business , in order to charge the 
 municipality with liability in respect of it, need not be direct or ascer- 
 tainable, or even accrue into the public treasury. Thus a municipal cor- 
 poration was held liable for undermining a brick wall in g^rading a street 
 under the authority of special statutes, and it was said that the acts were 
 accepted " because of the benefit which the corporation expects to receive, 
 not by making money direcUy, but by making it more convenient for 
 individuals, . . . and to benefit them by holding out greater inducements 
 to others to frequent the town. The only distinction is that in one case 
 the money is received directly, in the others indirectly." Mears v. 
 Wilmington Commissioners, 9 Ired. 73, and see also CunliSe v. Mayor of 
 Albany, 2 Barb. 190. In the case of Smoot v. Mayor of Wetompkee, 24 Ala. 
 1 12, the defendant corporation was held liable for injuries occasioned by a 
 defect in a bridge in a highway which it was made by statute the duty of 
 the defendant to maintain. The act provided that " the inhabitants of 
 the said cily shall be excused from working on roads and highways out 
 of said dty, and from patrol duty, except under the authority of said city ; 
 
90 PERSONAL INJURIES. [CHAP. II. 
 
 value of the land, is not ground to support an action in 
 behalf of one who while engaged in the construction of the 
 street under the direction of the defendant's superintendent 
 of streets, receives personal injuries.* 
 
 § 59. Duties depending on Condition or Prescription in Eng- 
 land. — It has been observed that the powers and duties of a 
 municipal corporation in England depend upon the conditions 
 with which it receives its delegation of sovereignty from the 
 crown, and that the tenure of each corporate existence depends 
 upon its observance of these conditions. When the munici- 
 pality exercises a power arising from a special grant, it is 
 affected with a correlative duty, for the breach of which it 
 will be liable to any person who thereby suffers harm. Thus 
 where the corporation held the franchise of a borongh, and also 
 of a quay, with the right to take tolls under a grant from the 
 crown, by the terms of which it was bound to keep in repair 
 a sea-wall ; it was held that the corporation was liable for 
 injuries suffered by one by reason of a failure to repair the 
 wall.2 And, since the corporate rights exercised by the munic- 
 ipality are, in England, taken to be derived either from an 
 express grant, or from prescription, which supposes a grant, it 
 is held that the municipal corporation which exercises a right, 
 by prescription, is bound to the correlative duty. Thus where 
 it was alleged that a corporation had, from time immemorial, 
 been used to repair a way, this was held by Lord Mansfield to 
 be equivalent to an allegation that the corporation was bound 
 by prescription to repair the way, and that this might be the 
 very condition of its creation or charter .^ 
 
 but the streets and highway of said city shall be kept in repair by said 
 city." The court construed this statute as intending to make the direct 
 immunity granted by the first clause a consideration for the obligation to 
 keep the streets and highways in repair. 
 
 1 Taggart v. Fall River, 170 Mass. 325. 
 
 " Mayor of Lyme Eegis v. Henley, 3 B. & Ad. 77, 1 Bing. N. C. 222. 
 
 8 Mayor of Lynn v. Turner, Cowpet, 87. 
 
§§ 58-60.] PARTIES DEFENDANT. 91 
 
 (c) Of Municipal Corporations eidsting under Special 
 Charters. 
 
 § 60. Semble, Zaability not created by Incorporatioii merely. — 
 The rule sanctioned by the earlier American authorities is 
 that an act of incorporation by the legislature, changing a 
 quasi municipal corporation into a city, does not of itself 
 create new ciTil remedies, as against the municipality, for 
 neglect of corporate duty; so that a city, like a town or 
 county, cannot be made liable to an action for a personal in- 
 jury resulting fifom the neglect of duty unless the right of 
 action be expressly giren by the statute,^ or imless the exer- 
 cise of the corporate right be attended with some direct and 
 
 » Edgerly v. Concord, 62 N. H. 8; Clark v. Manchester, 61 K H. 577; 
 Morgan v. Hallowell, 57 Maine, 375; Brady r. LoweU, 3 Cosh. 121 ; Haiv 
 wood V. Lowell, 1 Cnsh. 310; Hison v. Lowell, 13 Gray, 59; OliTer v. 
 Worcester, 102 Mass. 489; Hill r. Boston, 122 IVIass. 3-14; Jones o. Xew 
 Haven, 34 Cond. 1, as explained 37 Conn. 475 ; Hewison v. Kew Haven, 
 34 Conn. 136; Pray r. Mayor of Jersey City, 32 X. J. L. 394 ; Detroit v. 
 Blackeby, 21 Mich. 84 ; Hoffman v. San Joaquin County, 21 Cal. 426 ; 
 TTinbigler v. Los Angeles, 45 Cal. 36; Chope r. Eureka, 78 Cal. 588; 
 Arnold v. San Jose, 81 Cal. 618; Kichmond o. Long, 17 Gratt. 375; Arkar 
 delphia v. Windham, 4 S. W. Eep. 450 (Ark. 1887) ; Fort Smith o. York, 
 12 S. W. Rep. 157 (Ark. 1S89). It is now provided by statute, in most 
 of the States, that all municipal corporations shall be liable for injuries 
 resulting from the failure to keep their streets, roads, or ways in a reason- 
 ably safe and proper condition for travel. See § 167, post. In order to 
 create the statutory liability, it is sufficient that this be imposed by a 
 general law, and it is not necessary that the charter of the municipality 
 should impose such a duty. Campbell o. Kalamazoo, 80 Mich. 655. 
 It has been held that the lack of funds, and of the power to enforce 
 contributions of labor to repair streets, would exempt a municipality 
 from liability for injuries resulting from defects therein, although the 
 mere fact that all the money raised for street purposes had been ex- 
 pended on certain streets, leaving others unsafe, would not remove the lia- 
 bility for injuries caused by reason of the defective condition of the 
 neglected streets. Whitefield r. Meridian, 6 So. Bep. 244 (Miss. 1SS9), 
 and see Shelby v. Clagett, 22 X. E. Rep. 407 (Ohio, 1889), but this obvi- 
 ously seems to be on unsound rule. See Campbell v. Kalamazoo, supra. 
 So there is no distinction between cases arising under charters which 
 make it the duty of the city, as such, to keep the streets in repair, and 
 those which make this the duty of the city council. Chope v. Eureka, 78 
 Cal. 5S8; Arnold r. San Jose, 81 Cal. 618. 
 
92 PERSONAL INJURIES. [CHAP. 11. 
 
 special emolument or advantage to the municipality.^ In 
 other words, the grant of general corporate powers, without 
 more, does not create a contract as between the sovereignty 
 and the municipality, but is a delegation of sovereignty to be 
 exercised by the municipality mider its charter, which is 
 always subject to be amended at the pleasure of the legisla- 
 ture.^ In this view of the law, incorporated cities are said 
 to be mere governmental instruments for purposes of internal 
 administration like counties, when these are created by law 
 for the same purpose.* 
 
 1 See § 58, ante. 
 
 2 Detroit v. Blackeby, 21 Mich. 84. In this case, Campbell, J., said : 
 " It is competent for the Legislature to give towns and counties powers as 
 large as those granted to cities. ... It would be contrary to every princi- 
 ple of fairness to give special privileges to any part of the people and deny 
 them to others ; and such is not the purpose of city charters. In England 
 the burgesses of boroughs and cities had very important and valuable 
 privileges of an exclusive nature, and not common to all the people of the 
 realm. The charters were grant of privileges and not mere government 
 agencies. Their free customs and liberties were put by the Great Charter 
 under the same immunity with private freeholds. [See § 59, ante."] But 
 in . . . this country . . . they are not placed beyond legislative control. 
 The Dartmouth College case, which first established charters as contracts, 
 distinguished between public and private corporations, and there is no re- 
 spectable authority to be found . . . which holds that either offices or 
 municipal charters involve any rights of property whatever." 
 
 * Winbigler v. Los Angeles, 45 Cal. 36. So in California under the 
 Acts organizing counties, certain boards are charged with the duty of 
 keeping highways in repair ; and it is held that the counties are not liable 
 for personal injuries sustained by private individual through the neglect 
 of the officers charged with this duty. Hofiman if. San Joaquin County, 
 21 Cal. 426. In the same State it was held that a municipal corporation, 
 in the absence of statutory provision, was not liable for injuries received 
 by falling into a sewer which was in process o£ construction, but was neg- 
 ligently left unguarded by the officers of the corporation. Chope v. 
 Eureka, 78 Cal. 588, Beatty, J., dissenting. See Arnold v. San Jose, 81 
 Cal. 618. In Virginia, the converse of the rule is thus stated in an action 
 involving injury to property: " The principle of exemption from liability 
 for the defaults of its officers is not extended to municipal corporations 
 where the authority, though for the accomplishment of objects of a public 
 nature, is one from the exercise of which the corporation derives a profit, 
 or where the duty may be presumed to be enjoined upon the corporation 
 in consideration of privileges granted. Sawyer v. Corse, 17 Gratt. 230. 
 So in Richmond v. Long, 17 Gratt. 375, it was held that the plaintiff in 
 
§§ 60-61.] PARTIES DEPENDANT. 93 
 
 § 61. Contrary Rule in New York. — In New York, however, 
 the later cases hold that the granting of a municipal charter 
 is not a delegation, but a surrender of a portion of the sov- 
 ereignty of the State, in consideration of which the corporation 
 is bound by an implied undertaking to perform with fidelity 
 the duties which the charter imposes, and that if one be 
 injured in his person or property by the failure of the corpo- 
 ration to perform such a duty, he may have his action, though 
 this be not provided for by the statute. And it is said, in a 
 leading case, that where a public >ody is clothed by statute 
 with power to do an act which the public interest requires to 
 be done, and the 'means for the performance of the act are 
 placed at its disposal, the execution of the power may be 
 insisted on as a duty, although the statute conferring it be 
 only permissive in its terms.^ The general rule for the same 
 reasons is applied not only to cities but to incorporated villages 
 charged by the terms of their charters with the duty of repair- 
 ing highways.^ And the corporation is liable alike for mis- 
 feasance and non-feasance ; as for permitting a hole to be left 
 in constructing a sidewalk,* or for the negligent construction 
 of a building,* or for a failure properly to light and place 
 guards around an excavation made in a public street." 
 
 § 62. In other States. — The rule of the New York courts 
 upon this subject is adopted in Texas.^ So, in Colorado, it is 
 held that cities and towns incorporated under the general law,^ 
 
 error was not responsible for the loss of a slave admitted into its hospital 
 on the ground of the negligence of its agents at the hospital. 
 
 1 Hutson V. Mayor of New York, 5 Sandf. 289 (1851), Sandford, J., 
 dissenting; affirmed 9 N. Y. 163, Taggart, J., dissenting. See also 
 Weet V. Brockport, 16 N. Y. 161 n. ; Davenport v. Ruckman, 37 N. Y. 
 568; Requa v. Rochester, 45 N. Y. 129; Kunz v. Troy, 104 N. Y. 344. 
 
 2 Hickok V. Plattsburg, 15 Barb. 427, 16 N. Y. 161 n. ; Conrad v. 
 Ithaca, 16 N. Y. 158; Pomfrey v. Saratoga Springs, 104 N. Y. 459. 
 
 » Weet V. Brockport, 16 N. Y. 161 n. 
 ♦ Conrad v. Ithaca, 16 N. Y. 158. 
 » Storrs V. Utica, 17 N. Y. 104. 
 
 « Klein v. Dallas, 71 Tex. 280; Bauguas v. Atlanta, 74 Tex. 629; 
 Sherman v. Williams, 77 Tex. 310. 
 » Gen. Sts. c. 109, p. 593. 
 
94 PERSONAL INJURIES. [CHAP. IL 
 
 having exclusive control of their streets, are liable for dam- 
 ages caused by a failure to repair, whether such liability is 
 specifically imposed by the statute or not.^ Under the Oregon 
 statute providing that an action may be maintained against a 
 public corporation " for an injury to the rights of the plain- 
 tiff arising from some act or omission " of such corporation, 
 a city is held to be liable for an injury caused by the neglect 
 of its officers to repair streets which it is their duty to main- 
 tain, unless the charter, in terms, exempts the city from such 
 liability .2 In Louisiana, it is held that, in the absence of an 
 express statute imposing the duty and declaring the liability, 
 municipal corporations, having the powers ordinarily conferred 
 upon them respecting bridges, streets, and sidewalks within 
 their limits, owe to the public the duty to keep these in a safe 
 condition for use in the usual mode, by travellers ; and are 
 liable in a civil action for injuries resulting from the failure 
 to perform this duty.^ A similar view of the law obtains in 
 Illinois, it being held in that State that " a municipality by 
 voluntarily accepting a charter, impliedly contracts ... to 
 perform all the duties imposed on them, and . they are made 
 of perfect obligation by being clothed with all the power and 
 authority necessary to their full performance, and, in this 
 respect, there is no difference between such a corporation and 
 a private corporation, or individual, who had received from 
 the sovereign power a valuable grant charged with condi- 
 tions." * In Pennsylvania, and, it seems, in Maryland, towns 
 and counties are held liable in private actions for injuries, at 
 common law,^ and so cities are held affected with a similar 
 liability.^ 
 
 1 Boulder t: Niles, 9 Col. 415. 
 
 « Sheridan «. Salem, 14 Or. 328; Farquar v. Roseburg, 18 Or. 271. 
 
 8 Cline V. Crescent City R. K., 41 La. Ann. 1031. 
 
 * Browning v. Springfield, 17 111. 143, and see Claybnrg v. Chicago, 25 
 111. 535; Pekin v. Newell, 26 111. 320; Joliet v. Verley, 35 111. 58; Bloom- 
 ington V. Bay, 42 111. 503; Springfield v. Le Claire, 46 HI. 476; Mechan- 
 icsbnrg v. Meredith, 54 111. 84; Peru v. French, 55 111. 317; Waltham ». 
 Kemper, 55 111. 346; White v. Bond, 58 111. 297; Centralia v. Scott, 59 111. 
 129; Sterling v. Thomas, 60 HI. 264; Galesburg v. Higley, 61 HI. 287. 
 
 8 See cases cited § 53 n., ante. 
 
 « Pittsburg V. Grier, 22 Penn. St. 54; Erie t>. Schwingle, 22 Penn. St. 
 
§§ 62-63.] PAETIES DEFENDANT. 95 
 
 § 63. In the Supreme Court of the XTnited States. — In the 
 Supreme Court of the United States, the implication from the 
 earlier cases would seem to be that private actions, whether 
 against quasi corporations, as towns or counties, or against 
 incorporated municipalities, for defects in highways, could not 
 be maintained unless under the explicit authority of the stat- 
 ute.i Later, a defendant municipality was held liable for 
 an injury suffered by reason of a defect in a bridge, on the 
 ground that the burden of repairing or rebuilding the bridge 
 was imposed upon the defendants in consideration of the 
 privileges and immunities conferred by the charter.^ In a 
 
 384; Anne Arundel Commissioners v. Duckett, 20 Md. 468. Where a 
 local statute provided that taxpayers might make and repair footwalks, 
 and that the road supervisors might deduct the cost thereof from the tax- 
 payers' road-tax, it was held that a person injured by a defect in a plank 
 road- walk had no remedy for his injury, as against the township. Char- 
 tiers V. Langdon, 114 Penn. St. 541. 
 
 1 Fowle ». Alexandria, 3 Pet. 398, 400; Providence v. Clapp, 17 How. 
 161, 167. In Fowle v. Alexandria, the question at issue was whether a 
 municipal corporation established by special charter for the general pur- 
 poses of government, with limited legislative powers, was liable for losses 
 consequent on its having misconstrued the extent of its powers in grant- 
 ing a license which it had no authority to grant, without taking that 
 security for the conduct of the person obtaining the license which its own 
 ordinance had been supposed to require, and which might protect those 
 who transacted business with the person acting under the license. The 
 court, by Marshall, C. J., said: " We find no case in which this principle 
 has been affirmed. That corporations are bound by their contracts is ad- 
 mitted ; that money corporations, or those carrying on business for them- 
 selves, are liable for torts is well settled; but that a legislative corporation 
 established as a part of the government of the country, is liable for losses 
 sustained by a non-feasance, by an omission of the corporate body to 
 observe a law of its own in which no penalty is provided, is a principle 
 for which we can find no precedent. We are not prepared to make one 
 in this case.'' In Providence v. Clapp, 17 How. 161, the action arose 
 under a statute of Rhode Island which made towns and cities liable for 
 any neglect to keep highways in repair, to all persons injured thereby. 
 The court, by Nelson, J., said: " It is admitted that the defendants are 
 not liable for the injury complained of at common law, but that the 
 plaintiff must bring the case within the . . . statute to sustain the 
 action." 
 
 ' Weightman v. Washington, 1 Black, 39. In this case Clifford, J., 
 said: "It is . . . clear that the bridge is placed under the sole control 
 and mans^ement of the defendants ; and, in view of the several provisions 
 
96 PEBSONAL INJURIES. [CHAP. II. 
 
 still more recent case, a majority of the Supreme Court held 
 that the District of Columbia was liable to a traveller for an 
 injury caused by a defect in a street, which defect was the 
 result of the negligent and improper construction of a public 
 work which the corporation had authoiized. While the court 
 adverted to a distinction sometimes taken, which would re- 
 lieve the corporation from liability in cases of mere non- 
 feasance, and charge it with responsibility for misfeasance 
 like that charged in the case under consideration, the tenor 
 of the opinion renders it apparent that the court intended to 
 adopt to its full extent the rule of the New York cases upon 
 this subject. The majority of the court assumed (1) that 
 a municipal corporation, in the exercise of all its duties, is 
 but a department of the State ; (2) that a corporation can 
 act only by its agents or servants ; (3) that the care and 
 superintendence of streets are peculiarly municipal duties ; 
 and (4) that the weight of authority had established the 
 doctrine that a city is liable to an individual for an injury 
 
 of the charter, not a doubt is entertained that the burden of repairing or 
 rebuilding the bridge was imposed upon the defendants, in considera- 
 tion of the privileges and immunities conferred by the charter. Most 
 ample means, also, are placed at the disposal of the defendants ... to en- 
 able them to perform the duty enjoined, ... as the defendants have very 
 large power to lay and collect taxes on almost every description of prop- 
 erty, real and personal, as well as on stock and bonds and mortgages; 
 and they also derive means for the use of the city from granting licenses, 
 and from the rents and profits of real estate which they own and hold." 
 In Nebraska City v. Campbell, 2 Black, 590, the rule in Weightman v. 
 Washington was reaffirmed upon a similar state of facts. In Bobbins 
 V. Chicago, 4 Wall. 657, the action was founded upon a statute of Illinois 
 providing a remedy against the town or city in behalf of persons injured 
 by a defect in a way, so that the expressions in the opinion implying 
 the existence of a common-law remedy were not necessary to the decision 
 of the case. And this is true as to certain expressions contained in Rock 
 Island Supervisors v. United States, 4 Wall. 435. In Mayor of New 
 York V. Sheffield, 4 Wall. 189, being in error to the Circuit Court for the 
 southern district of New York, the plaintiff in error did not make any 
 question as the existence of a common-law liability as against the munic- 
 ipality. In Saint Paul Water Co. v. Ware, 83 U. S. 566, it was said that 
 a city might be liable for a defect in a highway caused by the neglect of 
 the employee of a water company which bad contracted with the city to 
 lay water pipes. See § 57. 
 
§ 63.] PAKTIES DEFENDAKT. 97 
 
 arising from negligence in the construction of a work author- 
 ized by the city. And it was held that the Board of Public 
 Works of the District of Columbia^ was a part of and an 
 agency of the municipal corporation, and that the proceedings 
 of that Board in the repair and improvement of the street were 
 the proceedings of the corporation, and that, therefore, the 
 corporation was responsible. Hunt, J., said : " A distinction 
 is to be noted between the liability of a municipal corporation, 
 made such by acceptance of a village or city charter, and the 
 involuntary quasi corporations known as counties, towns, 
 school districts, and especially the townships of New England. 
 The liability of the former is greater than that of the latter, 
 even when invested with corporate capacity and the power of 
 taxation. . . . The latter are auxiliaries of the State merely, 
 and, when corporations, are of the lowest grade, and invested 
 wiiii the smallest amount of power." ^ It will be observed, 
 while the rule in the coiirts of New York and Illinois rests 
 upon the doctrine that the liability of the municipality arises 
 out of a contract created by the act of incorporation between 
 it and the sovereignty represented by the legislature, that the 
 Supreme Court of the United States does not affirm this doc- 
 trine, but, on the other hand, holds that a municipal cor- 
 poration is a department of the State, and admits that quasi 
 municipal corporations, as being auxiliaries of the State, act 
 solely by virtue of delegated powers. The court seems to 
 accept the rule of the later New York cases as being too 
 firmly settled to be open to discussion, and cites, in support 
 
 1 The District of Columbia is a mnnicipal corporation, with power to 
 contract, to have a seal, sue and be sned, and to exercise the other powers 
 of a municipal corporation. The statute provides that " the Board of 
 Public Works shall have entire control of, and make all regulations which 
 they shall deem necessary for keeping in repair the streets ... of the 
 city, and aU other works which may be intrusted to their charge. . . . 
 They shall disburse ... all moneys appropriated ... or collected from 
 property holders, . . . for the improvement of streets, . . . and shall 
 assess, . . . upon the property adjoining, and to be specially benefited 
 by the improvements, ... a reasonable proportion of the cost." U. S. 
 St. Feb. 21, 1871, § 57. 
 
 2 Barnes v. District of Columbia, 91 U. S. 440 ; opinion by Hunt, J., 
 Waite, C. J., Clifford, Miller, and Davis, JJ., concurring, and Swayne, 
 Field, Strong, and Bradley, JJ., dissenting. 
 
 7 
 
98 PERSONAL INJURIES. [CHAP. H. 
 
 of the rule, a number of cases, which have been cited and 
 commented on in preceding paragraphs.^ 
 
 ^ In his dissenting opinion in Detroit ». Blackeby, 21 Mich. 84, Cooley, 
 J., seems to rest his approval of the New York rule chiefly upon considera- 
 tions of public policy, and relies much, in support of his opinion, upon the 
 English eases, Mayor of Lynn v. Turner, Cowper, 87, and Mayor of Lyme 
 Regis V. Henley, 3 B. & Ad. 77, 11 Bing. (N. C.) 222, — cases, however, in 
 which it appeared that the corporation under the terms of its charter 
 exercised certain franchises to its own direct pecuniary emolument, or 
 that a condition was to be presumed in the grant of the franchises. See 
 § 59, ante, and where the American cases cited by Cooley, J., in Detroit 
 V. Blackeby, will be found commented upon. In an elaborate discussion 
 of the subject by Gray, C. J., now an associate justice of the Supreme 
 Court of the United States, in the case of Hill i;. Boston, 122 Mass. 344, 
 the cases cited by the court in Barnes i>. District of Columbia, are ex- 
 amined with great minuteness, and the following conclusions are reached : 
 (1) There is no American case in which the neglect of a duty imposed by 
 a general law upon cities and towns alike has been held to sustain an 
 action by a person injured thereby against a city when it could not be 
 sustained against a town. (2) The only decisions of the State courts in 
 which the mere grant by the legislature of a city charter, authorizing and 
 requiring the city to perform certain duties, has been held sufficient to 
 render the city liable for neglect of such duties, when a town would not 
 be so liable, are in New York since 1850, see cases cited supra, § 62, and 
 in Illinois, see Browning v. Springfield, 17 lU. 143 ; Springfield v. Le 
 Claire, 49 El. 476; Clayburg v. Chicago, 25 111. 535; Pekin v. Newell, 26 
 111. 320. (3) The cases in the Supreme Court of the United States in 
 which private actions have been sustained against a city for neglect of a 
 duty imposed by law are of two classes : 1, Those which arose under the 
 peculiar terms of special charters, Weightman v. Washington, 1 Black, 39; 
 Barnes v. District of Columbia, supra, or in a territory of the United 
 States; Nebraska City v. Campbell, 2 Black, 390 ; 2, Those in which the 
 general liability of the defendant municipality was not denied or discussed, 
 Mayor of New York v. Sheffield, 4 Wall. 189; Robbins v. Chicago, 
 4 Wall. 657. (4) The result of an examination of tbe English authori- 
 ties is, that when a duty is imposed upon a municipal corporation for the 
 benefit of the public, without any consideration or emolument received by 
 the corporation, it is only 'where the duty is a new one, and such as is 
 ordinarily performed by trading corporations, that an intention to give a 
 private action for a neglect in its performance is to be presumed. See 
 cases cited § 58. 
 
§§ 63-65.] PARTIES DEPENDANT. 99 
 
 SECTION VI. 
 
 OP THE UABILITT OP OWNERS AND OCCUPANTS OP LAND, ETC. 
 
 § 64. Generally. — In considering the duty of the owner or 
 occupant of land or buildings towards strangers entering the 
 premises, it will be found that the defendant owner or occu- 
 pant wiU be held to a more or less stringent duty according 
 as he is more or less responsible for the act of the plaintiff in 
 so entering. It is sometimes said that, in certain cases, the 
 owner will be liable for slight, and in other cases only for 
 gross negligence, but the better opinion is that the law does 
 not recognize the existence of degrees of negligence ; ^ and a 
 better statement of the rule of law governing the cases is that 
 that which may be negligence in one case, for example, as to 
 one entering the premises on business by the procurement of 
 the owner, may not be negligence under other circumstances, 
 as towards a trespasser, or one entering for an unlawful pur- 
 pose. The measure of the owner's duty is to be considered 
 (1) as to persons entering the premises on lawful business, or 
 by the procurement of the owner or occupant ; (2) as to 
 trespassers or intruders; and (3) as to persons entering as 
 licensees. 
 
 § 66. Questions of Law and Pact — The question whether 
 the injured person entered the premises by the procurement 
 or invitation of the defendant, or as a licensee, or as a tres- 
 passer or intruder, wiU, if the testimony is contradictory or 
 doubtful, be for the determination of the jury.^ But when the 
 uncontroverted testimony, in any case, shows clearly what 
 was the relation between the plaintiff and the occupant or 
 owner, the court may, as matter of law, hold that the plaintiff, 
 being a licensee or trespasser, is debarred from a recovery. 
 Thus where a person, without business or permission, but 
 
 1 See § 92, post, notes, and cases cited. 
 
 « Indemanr v. Dames, L. R. 1 C. P. 274, L. R. 2 C. P. 311; Stewart ». 
 Harvard College, 12 Allen, 58 ; Gilbert v. Nagle, 118 Mass. 278; Hanks u. 
 Boston & Albany R. R., 147 Mass. 495. 
 
loo PERSONAL mjURIKS. [CHAP. H. 
 
 merely to gratify his curiosity, went on board a vessel and 
 was injured by falling down an open and unguarded hatchway, 
 he was held to be a trespasser.^ But if the person enters the 
 vessel, although on a day when it is not open to the public, by 
 permission, he is a licensee.^ So if one without excuse enters 
 upon a railway track, and is there injured by a passing train, 
 he will be held to be a trespasser and so to be debarred from 
 recovering for his injuries, unless, these were maliciously or 
 wantonly inflicted upon him by the servants of the railroad.* 
 But when it is a fair question whether the plaintiff did not 
 use the track by the invitation of the servants of the railroad, 
 as where a passenger just alighted from a train was crossing 
 the track to the highway when he was injured, the question 
 is for the determination of the jury.* A person who visits a 
 building for a purpose not connected with the use for which 
 the building is fitted, or to which it is put, — as to make an in- 
 quiry of interest to himself alone, — cannot be taken to have 
 entered the building by invitation.^ 
 
 (a) As to Persons entering on Business, or hy the Procure- 
 ment of the Owner or Occupant. 
 
 § 66. Owner responsible for Condition of the Premises. Implied 
 invitation. — If a person enters upon premises on business to 
 be transacted with the owner or occupant thereof, or by the 
 procurement of the owner or occupant; and being himself 
 in the exercise of due care, is injured by reason of the unsafe 
 condition of the premises or the approaches thereto, such un- 
 safe condition being known, or such as ought to have been 
 
 ^ Severy v. Niokerson, 120 Mass. 306. 
 
 ^ Metcalfe v. Cunard Steamship Co., 147 Mass. 66. 
 
 * Johnson v. Boston & Maine R. R., 125 Mass. 75; Morrissey v. Eastern 
 '&. R., 126 Mass. 377; Philadelphia & Reading R. R. v. Hunimell,44 Penn. 
 St. 465, and see cases cited § 73, posl. 
 
 * Gaynor ». Old Colony & Newport R. R., 100 Mass. 208. 
 
 * Plummer v. Dill, 156 Mass. 426. So it was held that one who en- 
 tered a building consisting of several tenements having a common access 
 and leased to several tenants, for the purpose of attending a wake being 
 held in one of the tenements, not having any express invitation to attend 
 the wake, was, as to the owner of the building, a licensee, merely. Hartr. 
 Cole, 156 Mass. 475. 
 
§§ 65-66.] PABTIES DEPENDANT. 101' 
 
 known, to the owner or occupant, the latter will be answer- 
 able in damages for such injuries. And the American courts 
 hold, generally, that if the owner or occupant of land induces 
 another to enter or pass over his premises, he thereby assumes 
 the obligation that the premises are safe and suitable for such 
 use.^ The owner cannot, generally, avoid his responsibility, 
 by delegating it, so long as he retains an efficient control of 
 the premises. Thus, if the owner of premises under his own 
 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 owner's 
 invitation, the owner is not, by reason of the contract, relieved 
 from the obligation of seeing that due care is used to protect 
 such persons.^ The rule applies although the premises are 
 leased, if the lessor retains an efficient control over tliem,^ 
 and where the employer retains the right of access to the 
 premises, the law may require him to see that due care is 
 used to prevent harm, whatever the nature of the contract 
 with those whom he employs* Although a mere passive ac- 
 quiescence by the owner or occupant in a certain use of his 
 land by another can amount to no more than a license as in 
 favor of the person so using the land, yet if the owner or 
 occupant does acts which amount to an implied invitation to 
 
 1 Bennett o. Louisville & Nashville R. R., 102 U. S. 580; Samuelsoa 
 V. Cleveland Iron Mining Co., 49 Mich. 164 ; McCone v. Michigan Central 
 R. R., 51 Mich. 601 ; Powers v. Harlow, 53 Mich. 507; Donaldson v. Wil- 
 son, 60 Mich. 86; Sweeney ». Old Colony & Newport R. R., 10 Allen, 
 368 ; EUiot v. Pray, 10 AUen, 378 j Coughty v. Woolen Co., 66 N. Y. 124 ; 
 Flynn v. Central R. R. of N. J., 142 N. Y. 439; Latham y. Roach, 72 
 111. 179; Gillis v. Pennsylvania R. R., 59 Penn. St. 129; Malone v. Haw- 
 ley, 46 Cal. 409 ; Deford v. Keyser, 30 Md. 179. 
 
 2 Curtis V. Kiley, 153 Mass. 123 ; Southern Ohio R. R. v. Morey, 47 
 Ohio St. 207. 
 
 » See §§ 85, 90, post. 
 
 * Woodman v. Metropolitan R. R., 149 Mass. 335, 340. See Bower 
 V. Peate, L. R. 1 Q. B. D. 321, approved in Dalton v. Angus, L. R. 6 App. 
 Cas. 740 ; Angus v. Dalton, L. R. 4 Q. B. D. 162, and L. R. 3 Q. B. D. 
 85; Picbard v. Smith, 10 C. B. (n. s.) 470; Hole v. Sittingbourne & 
 Sheemess Railway, 6 H. & N. 488, 500 ; Circleville v. Nending, 41 Ohio 
 St. 465; McCafEerty v. Spuyten Devil & P. M. R. R., 61 N. Y. 178, 185 
 §i 192 ettef.,po$t. 
 
102 PERSONAL INJURIES. [CHAP. II; 
 
 use the land, his liability will be the same as if he had held 
 forth an express invitation.^ The duty imposed by law upon 
 the master to furnish a safe place in which his servants may 
 work, is a branch of the general duty imposed on him as 
 owner of the premises for the protection of all persons lawfully 
 entering upon them.^ 
 
 § 67. Applications of the Rule. — If a person allows a danger- 
 ous place to be opened, or to remain open for an unreasonable 
 time, upon land belonging to him or within his control, and 
 fails to give notice of the danger to persons entering upon the 
 land by his invitation, express or implied, he will be respon- 
 sible to such persons for any injury occurring to such persons 
 by reason of his failure of duty.* It is negligence to maintain 
 an open hatchway in the sidewalk,* or to throw down a bale 
 of goods without warning into a private passage-way through 
 which the plaintiff has a right to pass.^ So if the owner of 
 land, who maintains a private road for the use of persons 
 coming to his house, permits a builder engaged in building a 
 house on the land to place materials therefor on the road, 
 and the plaintiff, while proceeding on the road to the owner's 
 house, runs against the materials and is injured, the owner 
 may be liable.^ If the owner permits a pitfall to exist in a 
 
 > Corby v. Hill, 4 C. B. (n. s.) 556; Chapman v. Rothwell, El. Bl. & 
 El. 168 ; Hounsell v. Smyth, 7 C. B. (n. s.) 738 ; Sweeney v. Old Colony 
 & Newport B. B., 10 Allen, 368. One who maintains a bridge connect- 
 ing buildings occupied by him on opposite sides of a railway track, is 
 lial)le to a brakeman, injured while performing his duty by coming in 
 contact with it, although the railroad company consented to the construc- 
 tion of the bridge, — it having notified the defendant, before the accident, 
 that the bridge was dangerous and must be removed. Dukes v. Eastern 
 Distilling Co., 51 Hun, 605. A letter-carrier who enters a building leased 
 for business purposes to many different tenants, and provided with boxes 
 for the reception of letters, for the purpose of delivering letters, may be 
 considered as entering the building by the implied invitation of the 
 owner. Gordon v. Cummings, 152 Mass. 513. 
 
 ' Musiok V. Dold Packing Co., 58 Mo. App. 322. 
 
 * Oliver v. Worcester, 102 Mass. 489. 
 « Engel V. Smith, 82 Mich. 1. 
 
 * O'Callaghan v. Bode, 84 Cal. 489, and see Dehring v. Comstock, 78 
 Mich. 153. 
 
 « Corby v. Hill, 4 C. B. (n. s.) 556. Where the plaintiff fell into a 
 
§§ 66-67.] PARTIES DEFENDANT. 103 
 
 private way belonging to him, he is answerable for any injury 
 thereby caused to one lawfully and carefully using such way,' 
 and so if he permits a trap-door to remain open in a passage- 
 way,^ or in his store, so that a customer falls into it.^ It is 
 held that if the owner of a lot in a city has for a long time 
 permitted the public to cross his land by a certain path, it is 
 his duty, on making an excavation in the path for building 
 purposes, to place a guard around it, or properly to warn the 
 
 hole, used for the defendent's convenience and ordinarily guarded by a 
 trap, bat at the time of the accident left open and unguarded, it was held 
 that since the hole was in the nature of a nuisance maintained by the 
 defendant, it was not necessary for the plaintiff, in order to a recovery, to 
 prove affirmatively that the act of a stranger in opening the trap did not 
 contribute to the injury. Barry v. Terkildsen, 72 Cal. 254. Where a 
 defendant had owned the land in which was a dangerous pitfall only 
 about four months, it was held that he might show, upon the issue of 
 negligence, that the nature of the soil about the pitfall was such that it 
 was practically almost impossible to fence it. Overholt v. Vieths, 93 Mo. 
 422. While making purchases in the defendant's store, the plaintiff, 
 going from a light to a lower and dark apartment to which she had been 
 directed, endeavored to reach a balustrade on the stairway, but was pre- 
 vented from so doing by display figures which the defendant had placed 
 on the stairs, and fell and was injured. It was held that the defendant 
 was guilty of negligence. Larken v. O'Neill, 48 Hun, 591. An invita- 
 tion to the public to enter the yard of a tenement-bouse, if this is to be 
 implied from the aspect of the house and grounds, does not extend to all 
 parts of the yard, irrespective of pathways or necessary lines of travel; 
 and a licensee cannot recover for an injury caused by his falling at 
 night into a cellar-way negligently left unguarded, where it does not 
 appear that the route chosen by him across the yard was specially appro- 
 priated to travel. Walker v. Winstanley, 155 Mass. 301. The case was 
 distinguished from Curtis v. Kiley, 153 Mass. 123, see § 66, ante, in that, 
 in the latter case, it was taken to be proved that there was a passage-way 
 across the yard. It was held that a person who went upon the land of 
 another, without invitation, to secure employment from the owner of the 
 land, was not entitled to damages for an injury received from a defective 
 machine on the premises not obviously dangerous, which he passed in the 
 course of his journey; and that although the owner could have ascertained 
 the defect by the exercise of reasonable care, yet that he owed no legal 
 duty to a stranger, so coming upon the premises, to keep the machinery 
 in repair. Larmore v. Crown Point Iron Co., 101 N. Y. 391. 
 
 1 Toomey v. Sanborn, 146 Mass. 28; Foren v. Rodick, 90 Maine, 276. 
 
 2 Chapman v. Rothwell,"El. Bl. & El. 108. 
 * Freer v. Cameron, 4 Rich. 288. 
 
104 PEESONAL INJURIES, [CHAP. H. 
 
 public of its existence ; ^ for, in such a case, it is to be assumed 
 tliat the public user is by the implied invitation of the owner,* 
 and there might be cases in which the circumstances would be 
 such as to lead the persons using it to suppose that it was a 
 public highway.^ Thus if a person lays out and paves a side- 
 walk on his own land abutting on a public street, and allows it 
 to remain apparently as a part of the street, he thereby extends 
 an invitation to the public to use it as such, and is bound to 
 use reasonable care to keep it safe for foot-passengers.* So 
 where a private person, or corporation, as a turnpike company, 
 maintains a way upon which the public may travel for hire, 
 as by the payment of a toll, such person or corporation ia 
 bound to keep such road in reasonable repair; and for any 
 failure of duty in this respect, by reason of which a traveller 
 lawfully using the way suffers injury, the owner of the way is 
 responsible, whether having actual knowledge of the existence 
 of the defect or not.® The rule applies to persons or corpora- 
 tions maintaining pleasure grounds to which persons are 
 admitted. Thus an agricultural society is liable to a person 
 lawfully attending its public exhibition for injuries received 
 by reason of its grounds not being reasonably safe. And 
 where such a person, walking along, was struck by a third 
 
 1 Graves ». Thomas, 95 Ind. 361. 
 
 2 Campbell v. Boyd, 88 N. C. 129 ; Barry v. New York Central & H. 
 R. R. R., 92 N. Y. 289, and see Byrne v. New York Central & H. R. R. 
 R., 104 N. Y. 362. 
 
 » Binks V. South Yorkshire Railway, 32 L. J. (n. s.) Q. B. 26. To 
 the general principle, see Hoffman v. New York Central & H. R. R. R., 
 87 N. Y. 25 ; Coi-rigan v. Union Sngar Refinery, 98 Mass. 577 ; Houston 
 & T. C. R. R. V. Symkins, 54 Tex. 615; Mulholland r. Brownrigg, 2 
 Hawks. 349; Griffiths ». London & N. W. Railway, 14 L. T. Rep. 797; 
 Gallagher v. Humphrey, 6 L. T. (n. s.) 684. 
 
 * Holmes v. Drew, 151 Mass. 578. See Stevens v. Nichols, 155 Mass. 
 472, 475 ; Lorenzo ». Wirtb, 170 Mass. 496. Where a person built a walk 
 leading from the public street to an opera-house owned by him,, and thence 
 to another street, and permitted the public to use it, it was held that he 
 was bound to keep it in a reasonably safe condition for travel. Brezee i;. 
 Powers, 80 Mich. 172. 
 
 5 See Fertilizing Co. v. Hyde Park, 97 U. S. 659; Baltimore v. Balti- 
 more & Ohio R. R., 21 Md. 51; Miller v. Canal Commissioners, 21 Penn. 
 St. 23. 
 
§§ 67-68.] PARTIES DEFENDANT. 105 
 
 person swinging a mallet to hit a striking machine situated on 
 the grounds \<-ithout a guard around it, it was held that the 
 question of the defendant's negligence was for the jurj.^ A 
 street railway company which advertises a balloon ascension 
 at a pai-k owned by it, thereby invites the public to visit the 
 premises and witness the ascension, and is liable for injuries 
 suffered by a visitor resulting from a fall of apparatus used in 
 the ascension, and it is immaterial that the person making 
 the ascent is an independent contractor.^ 
 
 § 68. Same Sabject : Vessels. — It is the duty of the owners 
 of passenger vessels to see that these are kept reasonably safe 
 for travellers, and if there is a failure in this duty the owner 
 is liable.^ And if the owner of a vessel holds out an induce- 
 ment to a person to enter a vessel which is in a dangerous 
 condition, he may be liable for resulting injuries.* And this 
 duty subsists as to the approaches and entrances to vessels 
 waiting, in berth, for passengers.^ Where ships were received 
 into a dock for repairs, and provided with stages for the 
 necessary work by the dock owner, it was held that the work- 
 men who came to the ships for the purpose of repairing 
 them, whether in privity with the dock owner or not, were 
 there for business in which the dock owner was interested, 
 and were to be considered as invited by him to use the dock 
 and all the appliances provided by him as incident to such 
 use, so that the dock owner was bound to use reasonable care 
 to see that such stages and appliances should be safe.^ 
 
 1 Salinas o. Vermont State AgrienltnTal Soc, 60 Yl 219. 
 
 * Bichmond & Manchester K. B. o. Hoaie, 94 Ya. 493, and see Thomp- 
 son V. Lowell, Lawrence, & H. St. Railway, 170 Mass. 577 ; Southern Ohio 
 B. R. <.: Morey, 47 Ohio St. 407. 
 
 * See § 46, ante, and cases cited. 
 
 * The Josei^ Sticknej. 31 Fed. Rep. 156. See Seveiy v. Xickerson, 
 120 Mass. 306; Metcalfe r. Canard Steamship Co., 147 Mass. 66. It is 
 not negligenoe for the owner of a boat laid up in winter qoaiteis to leave 
 her hatches oS without protection against persons entering the boat with- 
 out authority and falling into them. Caniff r. Blanchard Navigation 
 Cb., 66 Mich. 63& See Anderson r. Scully, 31 Fed. Bep. 161. 
 
 » Bace 0. Union Feny Co., 138 N. T. 644. 
 
 ' Heaven b. Fbnder, 11 Q. B. D. 603, distinguishing Blackmore v. 
 Exeter Railway, 8 £L & BI. 1035. So a coal merchant customarily 
 
106 PERSONAL INJUKIES. [CHAP, II. 
 
 § 69. Same Subject : Railroad Crossings. — If a railroad 
 makes a private crossing over its track at grade, and permits 
 the public to use it, and stations a flagman to prevent travel- 
 lers from crossing when there is danger, it vnll be taken to 
 invite the public so to cross, and will be liable for the negli- 
 gence of the flagman in performing his duty.^ And if the 
 company has for a long time permitted the public to cross 
 over its road at a certain point without objection or hindrance, 
 an invitation to cross may be implied, and the road will be 
 bound to exercise care, having regard to the probable use 
 and proportioned to the probable danger to persons crossing 
 the road at that point.^ Further, there are cases in which 
 it may be left to the jury to say whether there was not an 
 implied invitation to cross a railroad, although at a point not 
 laid out as a crossing, when the circumstances are such as to 
 justify the inference that the plaintiff was invited and induced 
 to cross at that place ; as when a passenger, alighting from a 
 train, was injured while crossing the track from the train to 
 the highway, there being no guard or barrier to prevent him 
 from so doing.^ From the constant use of the right of way of 
 a railway company for purposes of crossing for twenty years or 
 
 furnishing tackle to his customers with which to unload coal from the 
 barge in which it is delivered, is liable to the servant of a customer for 
 personal injuries caused by a defect in such tackle. Hayes v. Philadel- 
 phia & R. Coal & Iron Co. , 150 Mass. 457. 
 
 > Sweeney v. Old Colony & Newport R. R., 10 Allen, 368. 
 " Harriman b. Pittsburg, C. & St. L. Railway, 45 Ohio St. 11 ; Isabel 
 V. Hannibal & St. Jo. R. R., 60 Mo. 475; Baltimore & Ohio R. R. v. 
 State, 50 Md. 542; Sutton v. New York Central & H. R. R. R., 66 N. Y. 
 244; Clampit v. Chic, St. P. & K. C. R. R., 84 Iowa, 71. 
 
 8 Gaynor v. Old Colony & Newport R. R., 100 Mass. 208 ; Robbins v. 
 Fitchburg R. R., 161 Mass. 145 ; Conaty v. New York, N. H. & H. R. R., 
 164 Mass. 572 ; Tilton v. Boston & A. R. R., 169 Mass. 253. The shortest 
 route from a village to its railway station was by a path leading across a 
 switch. The railway company customarily parted its cars on this switch 
 so as to leave a space between them for a passage. A person crossing 
 the track when the space so left was but eighteen inches was caught and 
 killed by the sudden backing of the train. It was held that the company 
 by its acts had held out an implied invitation to the public to use the 
 crossing, and so was responsible for the injury, the deceased having been 
 in the exercise of due care. Nichols v. Washington, O. & W. R. R., 83 
 Va. 99, Fauntleroy, J., dissenting, 
 
§§ 68-69.] PARTIES DEFENDANT. 107 
 
 more, without objection, an implied invitation on the part of 
 the company may be inferred ; ^ and where the company had 
 maintained a private crossing for more than twenty years, dur- 
 ing which time the public had used it openly and continuously, 
 it was held that the crossing was a highway by prescription.^ 
 Generally, railroads are liable for their neglect properly to 
 maintain their crossings over public highways,^ and this 
 whether or not their duties in this regard are regulated by 
 statute. They are bound to keep safe the sidewalks at cross- 
 ings,* and also bridges, with their abutments and railings, 
 which they have lawfully constructed in order to lead a high- 
 way over their tracks ; and this duty extends to keeping the 
 way safe to the lines of the excavation made in constructing 
 the railroad.^ Where a crossing is protected by gates, it is 
 said that although the principal purpose of these is effectually 
 to warn travellers against crossing, while they are closed, 
 yet there may be places in which the gate should be a strong 
 barrier sufficient to help to keep horses off the tracks.^ 
 
 § 70. As to Persons entering by Invitation merely. — It is 
 apprehended that the responsibility of the owner or occupant 
 of land or buildings is the same towards persons entering the 
 premises, whether these come upon business to be transacted 
 with the owner or occupant, or at his solicitation, or upon his 
 mere invitation ; since, in any of these cases, the entry is by 
 his procurement or inducement, and not by his mere acqui- 
 
 » Davis o. Chicago & N. W. R. R., 58 Wis. 646. But where a railway 
 company permits an abuttor on its roadway to maintain a crossing over 
 its track for the sole convenience of such abattor and persons doing busi- 
 ness with him, and ihere is no public or notorious user of such crossing, 
 the railway company will not be liable to a third party injured while 
 attempting to use such crossing, as having held out to the plidntifF an 
 invitation to cross. Donnelly v. Boston & Maine R. R., 151 Mass. 210. 
 
 ' Johanson v. Boston & Maine R. R., 153 Mass. 58. See Cheneiy r. 
 Fitchborg R. R., 166 Mass. 211. 
 
 » Omaha & R. V. R. R. o. Rybum, 40 Neb. 87. 
 
 * RetAn V. Lake Shore & M. S. R. R., 94 Mich. 146; JefErey v Detroit, 
 Sec. R. R., 108 Mich. 221. 
 
 * Titoomb v. Fitehbnrg K. K., 12 Allen, 254. 
 
 * Marks v. Fitchbuig R. R., 155 Mass. 493, and see Tyrrell v. Eastern 
 B. R., Ill Mass. 546. 
 
108 PEBSONAL INJURIES. [CHAP. II. 
 
 escence, or against his will. It has been held, in certain 
 English cases, that one who enters upon the premises merely 
 by the invitation of the occupant, holds, as to the latter, the 
 relation of a licensee.^ But it is difficult to perceive any 
 sound reason for this distinction, since one who enters by 
 invitation must be taken to enter by the inducement of the 
 occupant.2 So, it was held that if a religious society gives 
 notice of a meeting to be held in its house of worship, and 
 invites the members of other societies to attend, 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 by him, while in the exercise 
 of due care, by reason of the dangerous condition of the 
 defendant's premises.* It would seem that the question in 
 all cases is whether the plaintiff entered the premises with 
 the mere consent, or at the wish of the defendant, expressed 
 or implied. If he enter by consent merely, he is a licensee ; 
 
 ^ Southcote V. Stanley, 1 H. & N. 247. In this case it appeared that the 
 defendant was the proprietor of a hotel to which he invited the plaintiff, 
 and that upon the premises there was an insecure and dangerous door, 
 which, with the knowledge of the defendant and not being himself negli- 
 gent, the plaintiS opened and was thereby injured. It was held that the 
 defendant was not liable for the injury, for that there was a distinction 
 between persons coming upon the premises upon business and those com- 
 ing only by invitation, the court apparently considering the latter to be 
 licensees merely. It is apprehended that the doctrine of this case is not 
 supported by the tenor of the American authorities. And the rule in 
 England has been limited so as to hold that if the invitation is for con- 
 venience of both parties, as to leave the premises by a way more con- 
 venient than the usual way; Nicholson u. Lancashire & Yorkshire Rail- 
 way, 34 L. J. (Ex.) 84 ; or to transact business in a diSereut place or 
 manner from what is usual ; Holmes v. Northeastern Railway, L. R. 4 
 Exch. 254, L. R. 6 Exch. 123; then the invited person is not merely a 
 licensee. The true rule is said to be this : " A mere passive acquiescence 
 by an owner or occupier in a certain use of his land by others involves no 
 liability ; but if he directly or by implication induces persons to enter on 
 and pass over his premises, he thereby assumes an obligation that they 
 are in a safe conditdon." Sweeney o. Old Colony & Newport Railroad 
 Co., 10 Allen, 368; Zoebisch v. Tarbell, 10 Allen, 385. 
 
 ' See comments on the case of Southcote «. Stanley, by Cockburn, 
 C. J., in Corby v. Hill, 4 C. B. (n. s.) 556, 565, as cited § %l,post, n. 
 
 ' Davis V. Central Cong. Society, 129 Mass. 367. 
 
§§ 70-71.J PARTIES DEPENDANT. 109 
 
 if by the defendant's wisTi, that is, by invitation, for whatever 
 purpose, he is entitled to a reasonable degree of protection. 
 It has been intimated that the general rule may be qualified 
 when the owner of the land operates thereon such a danger- 
 ous force as electricity, upon the ground that persons using 
 or controlling dangerous forces are bound to special care.^ 
 Persons entering premises on business with the owner are 
 entitled to reasonable protection and warnings of danger 
 after their business is completed and they remain on the pre- 
 mises by invitation.^ 
 
 (b) As to Persons Trespassing. 
 
 § 71. Greneral Rule : O'wner liable for WEUiton Injury. — Gen- 
 erally, a trespasser upon the premises of another assumes all 
 risks of danger arising out of the condition of the premises, 
 and an act which might be negligent as to one whom the 
 owner has invited or permitted to come upon the premises, 
 may not be negligent as to one intruding without the consent 
 or knowledge of the owner.' In other words, the liability of 
 the owner is limited, as to the trespasser, because the latter 
 is a mere stranger to whom the owner owes no duty. Thus 
 the owner of land is not, as to trespassers thereon, bound to 
 fence in his land or in any way to mark the boundaries of his 
 possession.* Nor is he bound to inclose obstructions to 
 
 1 Newark El. Light Co. v. Mason, 39 U. S. App. 416. See § 131, post. 
 
 2 Hartman v. Muehlebach, 64 Mo. App. 565. 
 
 ^ The rule will be the same, althongb the trespass be involuntary. 
 Thus in an action to recover for injuries received by falling into a turn- 
 table at night, it appeared that the plaintiff was walking along a street 
 which passed through the railroad company's yards ; that the turn-table was 
 located therein ; and that the plaintiff was well acquainted with the local- 
 ity, but missed his way, and fell in. It was held that he was not 
 entitled to recover. Early v. Lake Shore & Mich. Southern R. K., 66 
 Mich. 349. Where one coming to the -defendant's mill for goods was 
 directed to wait at an outside door for them, but went into the mill and 
 was injured by falling down the nngnarded shaft of an elevator used 
 only for hoisting merchandise, and was injured, it was held that he 
 could not recover. Trask v. Shotwell, 41 Minn. 66. 
 
 * Stafford v. IngersoU, 3 HUl, 38; Wells v. HoweU, 19 J. R. 385; Beck 
 V. Carter, 68 N. T. 283 ; Gorr v. Mittlestadt, 96 Wis. 296. This is so, 
 although the trespasser is an infant. See cases cited § 75 ia..,]post; 
 McVoy V. Oakes, 91 Wis. 214; Richard v. Connell, 49 Neb. 467. 
 
110 PERSONAL INJURIES. [CHAP. 11, 
 
 travel, as logs, etc., placed upon his land,^ or excavations, 
 unless these be so near the highway as to constitute a public 
 nuisance.^ The owner of a building in process of construe 
 tion is not bound to keep it safe as to trespassers entering it.^ 
 But the mere fact that the plaintiff receives his injury while 
 in the act of violating the law, or of invading the rights of 
 the defendant, will not excuse a wilful injury of the plaintiff 
 by the defendant, or an act so recklessly negligent as to 
 justify the presumption that the defendant was wantonly 
 careless.* For, although the owner owes no special duty to 
 the trespasser, every member of the community owes to every 
 other the duty of not wantonly exposing him to danger. 
 Thus although a trespasser who is injured by falling into an 
 excavation made or permitted to exist upon the land of an- 
 other, for a lawful purpose, cannot recover damages there- 
 for ; yet the owner will be responsible if he keeps a ferocious 
 animal upon his land, without notice, by which the trespasser 
 is injured ; ^ for it is not lawful, without notice, wilfully to 
 expose even a trespasser to bodily harm.® So if the owner 
 
 1 Deane v. Clayton, 7 Taunt. 522. 
 
 2 See Hounsell v. Smyth, 7 C. B. (n. 8.) 731, and cases cited §§ 187 
 et seq., post. The circumstances which will relieve the owner from liabil- 
 ity to a licensee will, a fortiori, relieve him as to a trespasser. See §§79 
 80, post. 
 
 » Castle V. Parker, 18 L. T. (n. s.) 367; Roulston v. Clark, 3 E. D. 
 Smith. 366 ; CampbeU v. Lunsford, 83 Ala. 512; Lake Shore & M. S. R. R. 
 0. Bodemer, 139 111. 596; McVoy v. Oakes, 91 Wis. 214. 
 
 * " For his wrong or trespass the trespasser is answerable in damages, 
 and he may be punishable for his violation of law ; but his rights as to 
 other persons and as to other transactions are not affected by that cir- 
 cumstance. A traveller may be riding with a horse and carriage which 
 he had no right to take or use ; he may be travelling on a turnpike with- 
 out payment of toll, . . . upon what is called the wrong side of the road, 
 . . . and in none of these cases is his right of action for any injury he 
 may sustain from the negligent conduct of another in any way affected 
 by these circumstances." Per Bell, J., in Norris v. Litchfield, 30 N. H. 
 271, 277. See Spofford v. Harlow, 3 Allen, 176; Quirk v. Holt, 99 Mass. 
 164; Kerwhacker v. Cleveland, C. «e C. R. R., 3 Ohio St. 172. 
 
 5 Loomis V. Terry, 17 Wend. 496 ; Marble v. Ross, 124 Mass. 44, and 
 see Ilott V. Wilkes, 3 B. & Aid. 304. 
 
 • Deane v. Clayton, 7 Taunt. 528. The rule is applied in actions for 
 injuries inflicted by vicious dogs, see Loomis v. Terry, supra ; Meibus v. 
 
§§ 71-72.] PARTIES DEFENDANT. Ill 
 
 secretly place spring-guns upon his land, and, not knowing 
 this, a trespasser is thereby injured, the owner will be an- 
 swerable.^ And if the owner, being present, might have 
 prevented the accident by the exercise of reasonable care, 
 after discovering the danger, and failed to do so, he may be 
 liable for the injury, for his negligence in such a case will be 
 taken to be wanton and reckless.^ 
 
 § 72. Trespasser, having Notice, takes the Kisk. — If the 
 trespasser has notice of the danger, he takes the risk of the 
 consequent injury. Thus it was held that a trespasser, having 
 knowledge that there were spring-guns in a wood, although 
 he might be ignorant of the particular spots where they are 
 placed, could not maintain an action for an injury received in 
 consequence of his accidentally treading on the concealed 
 wire communicating with one of the guns and thereby dis- 
 charging it.* It is said : " There can be no doubt that, as 
 against a trespasser, a man may make any defensive erection, 
 or keep any defensive animal which may be necessary to the 
 protection of his grounds, provided he takes due care to con- 
 fine himself to necessity. But . . . the defendant shall not 
 be justified even as against a trespasser unless he give notice 
 that the instrument of mischief is in the way." * But where 
 
 Dodge, 38 Wis. 300; Sherfey v. Bartley, 4 Sneed, 58; and obtains 
 althongh the dog be accidentally trodden upon, Smith v. Pelch, 2 Str. 
 1264, or irritated by a child. Woolfe v. Chalker, 31 Conn. 121. De- 
 taching the rear part of the train and allowing it to follow the forward 
 portion of the train at a short interval, without any warning or signal, 
 past a station in the dark, is such negligence as will make the railroad 
 company liable for injuries thereby occasioned to one who attempts to 
 cross the track between the two parts of the train, although such injured 
 person is, technically, a trespasser. Conley v. Cincinnati, N. O. & T. P. 
 K. R., 89 Ky. 402. 
 
 1 Bird V. Holbrook, 4 Bing. 628, and see Barnes v. Ward, 9 C. B. 392; 
 Jordin v. Crump, 8 M. & W. 782; Eott v. Wilkes, 3 B. & Aid. 304; 
 Whirley v. Whitman, 1 Head, 610; Hooker v. Miller, 37 Iowa, 613. 
 
 ' Frost V. Eastern R. R., 64 N. H. 220. This rule has often been con- 
 sidered in its application to cases of injuries occurring to persons tres- 
 passing upon the tracks of railroads. See § 73, post, and cases cited. 
 
 » Hott r. wakes, 3 B. & Aid. 304. 
 
 * Loomis V. Terry, 17 Wend. 496, 499, per Cowen, J. It was said in 
 this case that probably if the trespasser enter in the night-time with felo- 
 
112 PERSONAL INJDEIES. [CHAP. 11. 
 
 a trespasser sought to recover for injuries inflicted upon him 
 by a ferocious bull which the defendant kept in his pasture, it 
 was held that the plaintiff might recover notwithstanding he 
 knew that the animal was in the pasture and was dangerous ; 
 the court saying that the fact of notice was competent upon 
 the issue of the plaintiff's negligence in entering the pasture, 
 but not conclusive in law as against his right to recover. ^ 
 
 § 73. Rule applied as to Trespassers on Sail'way Tracks or 
 Trains. — Tlie rule, as often stated, is that the servants of the 
 railroad are, as to trespassers upon its track, bound to use 
 only ordinary or reasonable care.^ But it is obvious that 
 what is reasonable care will depend upon the circumstances 
 of each particular case, and that what might be reasonable 
 care in the dziver of a wagon on a highway might be criminal 
 negligence in a locomotive engineer. So in the case of 
 children trespassing upon the track, the engineer will be 
 bound to greater watchfulness than in the case of an adult 
 trespasser,* unless the engineer has reason to believe that 
 such an adult is deficient in intelligence.* The servants in 
 charge of a train have a righl; to assume that a person walk- 
 
 nious intent, and is injured by a savage animal kept by the owner or occu- 
 pant of the premises, the latter will not be liable for the injury; but it 
 was held, where the plaintiff entered the defendant's vineyard for the 
 purpose of purloining grapes, and was wounded by the discharge of a 
 spring-gun, which the defendant, without the knowledge of the plaintiff, 
 had set to protect his fruit, that the plaintiff was entitled to recover for 
 the damages sustained by reason of the wound. Hooker v. Miller, 37 
 Iowa, 613. See State v. Moore, 31 Conn. 479. 
 ^ Marble v. Ross, 124 Mass. 44. 
 
 * Eemer v. Long Island R. R., 48 Hun, 352; Kelly v. Union Railway 
 & Trans. Co., 95 Mo. 279; Dahlstrom v. St. Louis, L Mt. & So. R. R., 90 
 Mo. 99; Gulf, C. & S. F. R. R. v. Walker, 70 Tex. 126; Virginia Mid- 
 land R. R. V. White, 84 Va. 228; Lay v. Richmond & D. R. R., 106 N. C. 
 404 ; Christian v. 111. Cent. R. R., 71 Miss. 237 ; Tucker v. Norfolk & 
 West. R. R., 92 Va. 549; Norfolk & Western R. R. ». Dunnaway, 93 Va. 
 29. 
 
 ' Indianapolis, P. & G. R. R. v. Pitzer, 109 Ind. 179, and see Williams 
 V. Kansas City, S. & M. R. R., 96 Mo. 275; Barkley v. Missouri Pacific 
 R. R., 96 Mo. 367; Bottoms ». Seaboard & R. R. R. , 114 N. C. 699. 
 
 * Nichols V. Louisville & Nashville R. R., 6 S. W. Rep. 339 (Ky. 1888). 
 
§§ 72-73.] PARTTES DEPEINDANT. 113 
 
 ing on the track will leave in season to escape danger ; ^ and 
 if they use all the means and appliances at their disposal to 
 avoid the accident they are not to be charged with negligence, 
 if such means and appliances are of themselves reasonably 
 serviceable and sufiBcient.^ It seems that a locomotive engi- 
 neer is not bound to keep a special lookout for trespassers, 
 but the rule will be different when he knows that the public, 
 even without right, are accustomed to cross or use the track 
 of the road, at some particular point.* For wanton or wilful 
 acts, on the part of its servants, by which a trespasser is 
 injured, as where a train was run upon one walking on the 
 track without taking reasonable means to avoid injuring him, 
 the railroad will be liable.* It has been held that a railroad 
 will not be liable to a trespasser on its track except for 
 wanton and malicious injury ; ^ but it is apprehended that 
 
 ^ Tyler v. Sites, 90 Va. 539 ; Birmingham & C. Co. v. Bowers, 110 
 Ala. 328; Callaway v. Walters, 62 111. App. 562; Peirce v. Walters, 164 
 111. 560; High v. Carolina Cent. R. R., 112 N. C. 385; Matthews v. At. & 
 N. C. R. R., 117 N. C. 640; Schmolze v. Chic, M. & St. P. R. R., 83 Wis. 
 659, distinguishing Valin v. Milwaukee & N. R. R., 82 Wis. 1 ; Vreeland 
 r. Chic, M. & St. P. R. R., 92 Iowa, 279. See Keefe ». Chic. & N. W. 
 R. R., 92 Iowa, 182; Omaha & R. V. R. R. v. Cook, 42 Neb. 905. So as 
 to the driver of a street oar. Daly v. Detroit, &c. Street Railway, 105 
 Mich. 193. 
 
 * Erwin v. St. Louis, Iron Mt. & So. R. R., 96 Mo. 290. 
 
 * St, Louis, L Mt. & So. R. R. v. Monday, 49 Ark. 257, and see Bouw- 
 meester v. Grand Rapids & I. R. R., 67 Mich. 87 ; Carrington v. Louisville 
 & Nashville R. R., 88 Ala. 472. 
 
 * Sheehan v. St. Paul & Duluth R. R., 40 U. S. App. 498; Cahill v. 
 Chic, M. & St. P. R. R., 46 U. S. App. 85; Seaboard & Roanoke R. R. v. 
 Joyner, 92 Va. 354. See § 69, ante, §§ 161 e« seq., post. But it is held that 
 a trespasser walking on a railroad track cannot recover although defend- 
 ant may have been negligent in failing to give warning of the approach 
 of the train or to comply with the statute regulating the speed of trains. 
 Stringer v. Ala. Min. R. R., 99 Ala. 397. See also Georgia Pac. R. R. v. 
 Ross, 100 Ala. 490. Evidence that there was a custom to walk upon the 
 defendant's track is of itself incompetent upon the issue of the defendant's 
 negligence. Memphis & C. R. R. ». Womack, 84 Ala. 149. But the 
 rule is otherwise if the defendant knows and permits such customary 
 user of its tracks. Nuzum v. Pittsburgh, C. & St. L. R. R., 30 W. Va. 
 228 ; Kansas Pacific R. R. v. Whipple, 39 Kan. 551; Roden v. Chicago & 
 G. T. R. R., 133 m. 72. 
 
 6 Schexnaydre V. Railroad, 46 La. Ann. 248; Heiter v. E. St. Louis 
 
 8 
 
114 PERSONAL INJURIES. [CHAP. II. 
 
 such a rule is not to be supported by reason, or the ■weight of 
 authority. Thus it is held that if an engineer neglects to 
 keep any lookout ahead, the railroad will be liable for any 
 resulting injury to a trespasser on the track ; ^ and so for any 
 negligence of the train crew after the discovery that the tres- 
 passer is in peril, although the trespasser may have negligently 
 entered on the defendant's track ; ^ for the proximate cause 
 of the injury in such cases is clearly the negligent act or 
 omission of the defendant's servants, and not the antecedent 
 negligence of the plaintiff.^ Generally, any person who 
 crosses, walks, or lingers upon the track of a railroad, with- 
 out right or necessity, is a trespasser.* But it is held that 
 persons engaged in business upon a railroad, and so called 
 upon to cross the track from one side to the other, are not 
 trespassers, and the road is bound to give them warning of 
 the approach of its trains by the usual signals, although the 
 place is not a regular crossing.^ It is the general rule that a 
 railway corporation will be liable for the reckless and wanton 
 acts of its servants in removing trespassers from its trains, if 
 such removal was within the line of the servant's duty, even 
 if the act complained of was not previously authorized or sub- 
 Con. R. R., 53 Mo. App. 331 ; Powell v. Mo. Pao. R. R., 59 Mo. App. 626 ; 
 Chicago, B. & Q. R. R. v. Morkenstein, 24 111. App. 128 ; Peirce v. Wal- 
 ters, 164 III. 560; Blanchard i'. Lake Shore & M. S. R. R., 126 111. 416. 
 
 1 Smith V. Norfolk & So. R. R., 114 N. C. 728; Pickett v. Wilmington 
 & W. R. R., 117 N. C. 616. 
 
 2 Sutzin V. Chic, M. & St. P. R. R., 95 Iowa, 305; Dlanhi v .St. Louis, 
 I. M. & S. R. R., 139 Mo. 291. 
 
 ' See § 100, post, and cases cited. 
 
 * Where the track of one railway company passes close to that of 
 another and it is the custom of the employees of the latter company with- 
 out objection to step upon the track of the former company to make 
 signals which are for the benefit of both, such employees are not tres- 
 passers. McMarshall v. Chicago, R. I. & P. R. R., 80 Iowa, 737. It 
 was held in Strong v. Canton, A. & N. R. R., 3 So. Rep. 465 (Miss. 1888), 
 that the code of Mississippi, § 1047, prohibiting locomotives from being 
 run through towns at a greater than a certain speed, did not make the rail- 
 road company liable for an injury to a person who was walking on the 
 track without looking or listening for locomotives, unless the company's 
 servants saw such person before the accident. 
 
 « Owens I). Penn. R. R., 41 Fed. Rep. 187; Glass v. Memphis & C. R. 
 R., 94 Ala. 581. 
 
§§ 73-74.] PARTIES DEPENDANT. 115 
 
 sequently ratified by the corporation;* the principle being 
 that the master is liable for the wilful acts of his servant done 
 within the general scope of his employment.^ But it is held 
 that the act of the servant of the railroad, in such a case, can- 
 not be considered the act of the corporation unless he was 
 employed generally to remove trespassers, or specifically, to 
 remove the particular trespasser.^ The question of authority, 
 in such cases, may be for the jury.* 
 
 § 74. Zizceptioas to Rule, 'when Owner creates a Public Nui- 
 sance. — It is a general rule that a person who creates a public 
 or common nuisance, and so violates a public duty, is answer- 
 able in damages to any other person who suffers injury 
 thereby. And it is settled, in England, that if the owner of 
 land dig a pit or excavation on his own land, but so near the 
 highway as to endanger the safety of travellers lawfully using 
 the way, he will be liable for injuries to such a traveller, caused 
 by the existence of such pit or excavation, although the trav- 
 eller, in wandering from the line of the highway, and so fall- 
 ing into the pit, was technically a trespasser.^ To constitute a 
 nuisance, however, the excavation must be within such a dis- 
 tance of the travelled way as to make it probable that trav- 
 ellers may fall into it.® The principle of the rule is also 
 
 1 Planz V. Boston & Albany R. R., 157 Mass. 277; Mobile & Ohio R. 
 R. V. Seales, 100 Ala. 368. See Corcoran v. Concord & M. R. R., 56 Fed. 
 Rep. 1014, 6 C. C. A. 231. 
 
 ' See § 34, ante, notes, and cases cited. 
 
 ° Marion i;. Chicago, R. I. & Fac. R. R., 59 Iowa, 428. It has been 
 held that a railroad is liable for injuries inflicted by its employee on a 
 trespasser in violently ejecting him from a rapidly moving train, it being 
 the prescribed duty of the employee to carry trespassers to the conductor 
 of the train, and .to stop the train and put them ofp, if so ordered to do by 
 the conductor. Southern Railway v. Hunter, 74 Miss. 444. 
 
 * Planz V. Boston & Albany R. R., 157 Mass. 277. 
 
 6 Barnes v. Ward, 9 C. B. 392, and see Hounsell v. Smyth, 7 C. B. 
 (jj. 8.) 731. 
 
 * Where the owners of a canal and land adjacent, between it and a 
 public way, permitted the land to be used for carting, it having the ap- 
 pearance of being a part of the way, it was held that they were not liable 
 for injuries suffered by one who, using the way at night, fell into the 
 canal, the canal and way not being adjoining each other, and the person 
 
116 PERSONAL INJURIES. [CHAP. II. 
 
 applied when the public nuisance exists, not upon the land 
 of the defendant, but in any place commonly and lawfully 
 resorted to by the public* The rule of the English cases 
 upon this subject is accepted generally in the United States.^ 
 
 injured being merely a licensee, and there being no inducement by the 
 defendants to the plaintiS to enter on land. And Mellor, J., said that 
 the plaintifl, being merely a liciensee, was bound to use the permission of 
 the defendant subject to its dangers. Binks v. South Yorkshire Kailway, 
 32 L. J. (n. 8.) Q. B. 26, and see Hardcastle v. South Yorkshire Railway, 
 4 H. & N. 67. The owner of a city lot is not bound to fence or guard an 
 excavation or pond therein not situated so near the street as to make it 
 unsafe for persons passing. Klix v. Nieman, 68 Wis. 271 ; and see Har- 
 greaves v. Deacon, 25 Mich. 9, where the same rule -was applied in an 
 action brought to recover damages for injuries received by reason of the 
 plaintiff's falling into a cistern left uncovered on premises not imme- 
 diately adjoining the highway. In these cases the injured plaintiffs were 
 infants, and it was held that the cases did not fall within the class of 
 Sioux City Railroad v. Stout, 17 Wall. 657. See Note, following § 78. 
 
 1 See Wood v. Independent School District of Mitchell, 44 Iowa, 27. 
 So where a defendant is engaged in a business which naturally draws 
 numbers of people together in a public place which the public has long 
 been accustomed to use, he is liable for an accident occurring through the 
 use of machinery so defective as to be imminently dangerous to human 
 life, although the person thereby injured was at the place solely to gratify 
 his curiosity; it not appearing that he was negligent in going there. Fitz- 
 patrick v. Garrison & West Point Ferry Co., 40 Hun, 288. 
 
 2 Hayes v. Michigan Central R. R., Ill U. S. 228 ; Beck v. Carter, 
 68 N. Y. 283; Norwich v. Breed, 30 Conn. 535; Stratton v. Staples, 59 
 Maine, 94; Baltimore & Ohio R. R. v. Boteler, 38 Md. 568; Homan v. 
 Stanley, 66 Penn. St. 464 ; Young v. Harvey, 16 Ind. 314 ; Stewart v. Har 
 vens, 17 Neb. 211 ; Haughey v. Hart, 62 Iowa, 96. But see Howland v. 
 Vincent, 10 Met. 371, as cited post, § 187. It was held in Pennsylvania 
 that if the excavation be at such a distance that in order to reach it the 
 person falling into it must have been a trespasser, the owner will not be 
 liable for the resulting injury. Grumlich v. Wurst, 86 Penn. St. 74; and 
 see Kohn v. Lovett, 44 Ga. 251 ; but it is believed that the true criterion 
 of liability depends upon the question whether the excavation was so near 
 the highway as to constitute a nuisance, and so to impute wanton negli- 
 gence to the defendant, and that this question is not affected by the cir- 
 cumstance that the plaintiff was technically, but not wilfully, a trespasser. 
 So it is held in Connecticut that the liability of one who maintains an 
 unguarded excavation on his own premises, near the public street, depends 
 upon the dangerous condition in which he leaves it, rather than upon its 
 distance from the highway. Crogan «. Schiele, 53 Conn. 186, and see 
 Baltimore & Ohio R. R. v. Boteler, 38 Md. 568. A building so badly 
 
§§ 74-76.] PARTIES DEFEKDANT. 117 
 
 § 75. As to Infant or Ignorant Treapassera. — The rule Seems 
 to be well settled that one who recklessly and without neces- 
 sity leaves exposed dangerous weapons, or things, by meddling 
 with which ignorant persons or infants may be injured, are 
 liable for such injuries although in so meddling the injured 
 person was a trespasser. In the leading case upon this subject 
 it appeared that the defendant had carelessly left his horse 
 and cart unattended in the open street where children were 
 playing. The plaintiff, an infant of seven years, climbed upon 
 the cart, in play, and another child incautiously led the horse 
 along and the plaintiff was injured. It being admitted that 
 the plaintiff was a trespasser, it was held that the defendant 
 under the circumstances was guilty of reckless and wanton 
 negligence, and so that the plaintiff might recover, and Lord 
 Denman, C. J., said the case was as if a game-keeper should 
 leave his loaded gun within the reach of a child who should 
 play with the gun and so suffer an injury.^ This case has 
 been often referred to and is accepted generally as authority, 
 but the principle upon which it rests seems in some cases not 
 to have been rightly apprehended.^ 
 
 § 76. Reasons and Iiimitations of the Rule. — It is appre- 
 hended that tlie rule in these cases rests upon the general 
 principle tliat the defendant owes to the whole community the 
 duty of abstaining from the unnecessary doing of anything, 
 upon his own ground or with his own property, which shall put 
 others in peril, the principle being expressed in the maxim sic 
 utere tuo ut alienum non laedas, and the law takes the defend- 
 ant to know that the community includes persons of weak or 
 undeveloped capacity. But the owner of property owes no 
 special duty to the injured person merely because such person 
 is an infant or incapable, nor is he responsible for the injury 
 suffered by such person unless the circumstances show the in- 
 jury to have been wantonly inflicted.^ It is said : " The sup- 
 
 constracted as to be dangerous is a nuisance for which the owner is re- 
 sponsible, and the doctrine of independent contractors does not apply. 
 Wilkinson v. Detroit Steel & Spring Works, 73 Mich. 405. 
 
 1 Lynch v. Nurdin, 1 Q. B. K. 29. 
 
 ' See Note, following § 78. 
 
 » Clark V. Manchester, 62 N. H. 577 ; Frost v. Eastern E. R., 64 N. H. 
 
118 PERSONAL INJURIES. [CHAP. H. 
 
 posed duty has regard to the public at large, and cannot well 
 exist as to one portion of the public and not to another under 
 the same circumstances. In this respect, children, women, and 
 men are upon the same footing. In cases where certain duties 
 exist, infants may require greater care than adults, . . . but 
 precautionary measures having for their object the protection 
 of the public must . . . have reference to all cases alike." In 
 the same case it was held that a railroad company was not 
 bound to fence its track in order to keep children from tres- 
 passing thereon, and further that the fact that plaintiff who 
 had wandered upon the track and received an injury from a 
 passing train was a child seven years old did not create any 
 peculiar duty on the part of the defendant to guard the child 
 from injury.^ Where a child four years old living on the line 
 of a railroad, strayed across the tracks in front of his house 
 to the opposite side, where there was no fence, although it was 
 the duty of the railroad to maintain one, and thence into land 
 adjoining, where he fell into a ditch and was injured, it was 
 held that the railroad was not liable for the injury, since its 
 only duty was to protect the plaintiff from injury on its own 
 land.2 And where a child climbed over the guards erected 
 around machinery used in the construction of a public sewer, 
 and was injured, it was held that the municipality owed him 
 
 220; Gillespie v. MoGrowan, lOCT Penn. St. 144, overruling Hydraulic 
 Works Co. V. On, 83 Penn. St. 332 ; Grindley v. McKechnie, 163 Mass. 
 494. 
 
 1 Nolan V. New York, N. H. & H. R. R., 53 Conn. 461. 
 
 '^ Morressey v. Providence & Worcester R. R., 15 R. I. 271. To the 
 point that a railroad company owes no special duty to a child of tender 
 years trespassing on a railway track, or to hia parent, see also, Cauley v. 
 Pittsburg, C. & St. L. R. R., 95 Penn. St. 398; DufE v. Allegheny Valley 
 R. R., 91 Penn. St. 458; Pennsylvania R. R. v. McMuUen, 132 Penn. St. 
 107; Mitchell v. PhUadelphia, W. & B. R. R., 132 Penn. St. 226 ; Curley 
 V. Missouri Pacific R. R., 98 Mo. 13 ; Moixissey v. Eastern R. R., 126 
 Mass. 377 ; MoEachem v. Boston & Maine R. R., 150 Mass. 515, and see 
 cases cited in note, following § 78, post. But it is admitted that the ser- 
 vants of a street or steam railroad are bound to use greater precautions 
 when they perceive that a child is walking upon the track in front of a 
 moving train than they are bound to use in the case of an adult in a simi- 
 lar situation. See § 73, ante; Wynn v. City & Suburban Railway, 91 Ga. 
 344. 
 
§ 76.] PASTIES DEFENDANT. 119 
 
 no special duty as to protection.^ Where the owner of a fero- 
 cious dog left it at liberty in or near his vehicle, on the high- 
 way, and a child seven years old, passing on the highway, came 
 to the vehicle and meddled with a whip lying therein and was 
 thereupon bitten by the dog, it was held that the owner of the 
 dog was liable for the injury, and that the fact that the child 
 was meddling with the whip was no defence. But the liability 
 of the defendant was held to rest not upon any peculiar duty 
 which he owed to the child, but upon the fact that he knew 
 the disposition of the dog, and that when left to guard his 
 carriage in the public street it had attacked travellers.^ 
 
 1 Hamilton v. Detroit, 105 Micli. 514. 
 
 ^ Meibus v. Dodge, 38 Wis. 300. To the general rule that an infant 
 trespasser risks the consequences of his trespass, see Gaughan v. Philadel- 
 phia, 119 Penn. St. 503; Clarke «. Richmond, 83 Va. 355; Louisville & 
 NashviUe R. R. v. Hurt, 13 S. W. Rep. 1092 (Ky. 1990) ; Kentucky Cen- 
 tral R. R. V. Gastineau, S3 Ky. 119. An owner of land is not bound to 
 fence his vacant lot so as to protect infant trespassers from injury by 
 falling into pits or excavations or other dangers on the land. Klix ii. 
 Nieman, 68 Wis. 271 ; Galligan v. Metacomet Manuf'g Co., 143 Mass. 
 527; Miller «. Pennsylvania R. R. Co., 8 At. Rep. 209 (Penn. 1887). A 
 city is not liable for a death resulting from an infant child going upon the 
 land of the city without invitation, though without objection, and falling 
 into an abandoned reservoir in process of being filled with earth, and this 
 although the place was unguarded and such as might be expected to allure 
 children. Clark v. Manchester, 62 N. H. 577; Jewett v. Keene, 62 N. H. 
 701. It was held that a defendant was not liable for injuries caused to a 
 child by steam escaping upon waste ground of the defendant, in the ab- 
 sence of testimony that the place was made attractive to children by 
 reason of the discharge of steam there, or that children were in the habit 
 of resorting to the place to play. Schmidt v. Kansas City Distilling Co., 
 90 Mo. 284. Where a boy in play was sliding down an awning post in a 
 sidewalk, and in so doing struck an ash barrel which was upon the side- 
 walk in violation of a city ordinance, and the barrel fell upon and injured 
 him, it was held that the city was not liable. Gaughan v. Philadelphia, 
 119 Penn. St. 503. In an action against an ice company for negligently 
 causing the death of the plaintiffs intestate, a child of seven years, it ap- 
 peared that the defendant's wagon was standing in the street, and that the 
 child was playing with others on the sidewalk ; that after the driver had 
 taken his place, and another employee of the defendant had looked on 
 both sides of the wagon and called out " aU right," the child ran to the 
 wagon, placed herself between the wheels, and was killed. It was held 
 as matter of law that no negligence on the part of the defendant was 
 shown. Henderson v. Knickerbocker Ice Co., 22 N. Y. S. Rep. 530. 
 
120 PERSONAL INJURIES. [CHAP. 11. 
 
 § 77. Question, whether the Defendant's Act was wilfully mis- 
 chievous. — It would seem in any case, although the injured 
 person be an infant, that in order to charge the defendant with 
 responsibility for the injury, it must appear that the act com- 
 plained of was wilfully mischievous, as by leaving a ferocious 
 dog at liberty to attack passers-by.* But that act is not to be 
 deemed mischievous or wanton which the defendant does in 
 the ordinary course of his business, and by the use of appli- 
 ances which do not, obviously, and of necessity, expose all 
 persons who may approach them to peril, or the exposure of 
 which is not attended with some concealed danger.^ Thus 
 if a druggist were to expose for sale in the door of his shop, 
 without warning, an open cask of arsenic, and an infant 
 trespasser were to taste the arsenic, supposing it to be sugar, 
 and thereby be injured, it is apprehended that the act of the 
 druggist in exposing the poison would be held wilfully mis- 
 
 1 Meibus v. Dodge, 38 Wis. 300. 
 
 2 In Schilling v. Abernathy, 112 Penn, St. 437, it was held that the 
 defendant owner of land was liable for an injury received by a child by 
 the falling upon him of a ruinous wall abutting on an alley upon the de- 
 fendant's land, in which the plaintiff was trespassing, and it was held that 
 " where one who has reason to apprehend danger from the peculiar situa- 
 tion of his property and its openness to accident, the rule that where no 
 duty is owed no liability arises will not prevail." It is believed that the 
 liability in such a case depends upon whether the danger to be appre- 
 hended is so grave or so imminent as to warrant the conclusion that the 
 owner was wantonly reckless in permitting it to exist. It is said by 
 Brett, M. R., that "whenever one person is by circumstances placed in 
 such a position in regard to another that every one of ordinary sense who 
 did think would at once recognize that if he did not use ordinary care and 
 skill in his own conduct with regard to those circumstances, he would 
 cause danger or injury to the person ox property of the other, a duty 
 arises to use ordinary care and skill to avoid such danger." Heaven v. 
 Pender, L. R. 11 Q. B. D. 503, 509. The principle governing the English 
 cases was illustrated in Hughes r. Macfle, Abbott v. Mackfle, 2 H. & C. 
 744. The defendant was the proprietor of a cellar which had an opening 
 into the public highway, which opening was closed by a trap-door or lid. 
 The entrance was left open with the lid resting against the wall. The 
 first of two children passing along the highway meddled with the lid, and 
 it fell upon both children and injured them. It was held that the propri- 
 etor was not liable to the first child, he being a trespasser in meddling 
 with the lid ; and that there would be a liability as to the second child, if 
 he was not a joint trespasser with the first. 
 
§ 77.] PARTIES DEFENDANT, 121 
 
 chievous. But on the other hand where the defendant exposed 
 in a public place, for sale, uufenced and without superin- 
 tendence, a machine which might be put in motion by any 
 passer-by, and which when in motion was dangerous, and the 
 plaintiff, a boy four years old, by the direction of his brother 
 seven years old, placed his fingers within the machine whilst 
 another boy was turning the handle which moved it, and the 
 plaintiff's fingers were crushed ; it was held, setting aside the 
 question of contributory negligence, that the defendant was 
 not liable, since the act of the defendant in exposing the ma- 
 chine was not wilfully mischievous, and so, as to the plaintiff, 
 not negligent.^ So where a person who was employed to drill 
 a well in the grounds of a school-house left his drilling machine 
 unlocked and unguarded in his absence, and a child lawfully 
 in the grounds meddled with the machine and so was injured, 
 it was held that he was without remedy, the machine being 
 stationed where it was for a proper and necessary purpose.^ 
 Where the servants of a railroad company, following the regu- 
 lations of the road, placed upon the track a torpedo for a neces- 
 sary purpose, that is, for a danger signal, and the plaintiff, 
 without reason, picked up the torpedo, which exploded and 
 injured him, it was held that he could not recover for his in- 
 juries.* On the other hand, when the act of the servants of 
 the road in placing the torpedo, at a point on the road where 
 the corporation had customarily permitted persons to cross 
 was needless, unauthorized, and mischievous, the corporation 
 was held liable to a child who ignorantly picked up the tor- 
 pedo and was injured thereby.* So where the plaintiff, a boy 
 of eleven, mounted the ledge of a tender of a locomotive, 
 paying no attention to repeated requests of the engine crew to 
 dismount, which he easily might have done, and one of the 
 crew threw cold water upon him, when he jumped and fell 
 
 1 Mangan v. Atterton, L. K. 1 Ex. 239. See Holbrook v. Aldrioh, 168 
 Mass. 15. 
 
 ' Wood V. Independent School District of Mitchell, 44 Iowa, 27. 
 
 » Carter v. Columbia & GreenviUe R. R., 19 S. C. 20. 
 
 * Harriman v. Pittsburg, C. & St. L. R. R., 45 Ohio St 11. See also 
 Bellefontaine & Indianapolis R. R. v. Snyder, 18 Ohio St. 399; Barry v. 
 New York Central & H. R R. R., 92 N. Y. 289. 
 
122 PERSONAL INJURIES. [CHAP. 11. 
 
 under the wheels of the locomotive, which was then moving 
 rapidly, it was held that the question of the defendant's negli- 
 gence was for the jury.^ 
 
 § 78. Rule applied in Favor of Railway Companies. — It was 
 held that a railway corporation was not liable to a boy, who, 
 while trespassing upon the land of the company adjacent to 
 the highway, climbed, in play, into an open freight car there 
 standing, and was injured by the falling upon him of the door 
 of the car, which was insecurely hung. The court considered 
 that the fact that the defendant knew that the car was left 
 upon the track where it would be " an enticing, attractive, and 
 inviting object to children," and that children were and had 
 been accustomed to play in and about such cars, upon the de- 
 fendant's side tracks, was not an invitation or inducement 
 held out by the plaintiff to the defendant, and that the defend- 
 ant owed no duty to the plaintiff, he being a trespasser.^ It 
 is held, further, to be no part of the duty of a railway corpo- 
 ration to maintain a guard over its cars left .sfeending on its 
 tracks, in order to protect children, playing about them, from 
 injury ; ^ and, generally, in operating its trains, a railroad owes 
 no more duty towards an infant, as such, than towards an 
 adult trespasser.* 
 
 1 Branham v. Central R. R., 78 Ga. 35. 
 
 ' McEaohernt;. Boston & Maine R. R., 150 Mass. 515, and see Curley v. 
 Missouri Pacific R. R., 98 Mo. 13. In Biddle v. Hestonville Passenger R. 
 R., 112 Penn. St. 551, it was held that where a child trespassing on the plat- 
 form of a street car was compelled by the driver to jump from the car just 
 as the driver started up the car with a jerk, and so was injured, that the 
 defendant was responsible, but the liability was placed upon the general 
 duty of the defendant not wantonly to injure even a trespasser. See also 
 Philadelphia & Reading R. R. v. Hummell, 44 Penn. St. 375; Pennsyl- 
 vania R. R. V. Lewis, 79 Penn. St. 83 ; Hestonville Passenger R. R. v. 
 Connell, 88 Penn. St. 522; Pittsburg, A. & M. Passenger R. R. v. Cald- 
 well, 74 Penn. St. 421. 
 
 « Chicago & Alton R. R. v. McLaughlin, 47 111. 205; Central Branch 
 Union Pacific R. R. v. Henigh, 23 Kan. 347. 
 
 * Felton V. Aubrey, 43 U. S. App. 278. 
 
 Note. — As to certain applications of the doctrine of Lynch 
 V. NxjRDiN. In Lynch v. Nurdin, 1 Q. B. R. 29, see supra, § 75, Lord 
 Denman said: " Supposing . . . that the plaiutifE merely indulged the 
 
§§ 77-78.] PARTIES DEFENDANT. 123 
 
 natural instinct of a child in amusing himself with an empty cart and 
 deserted horse . . . the defendant cannot be permitted to avail himself 
 of that fact. The most blamable carelessness . . . having tempted the 
 child, he ought not to reproach the child with yielding to that tempta- 
 tion." It would seem to be upon this expression that those cases rest 
 which intimate that the owner of property owes a special duty towards 
 infant trespassers coming upon it, beyond his general duty of abstaining 
 from inflicting upon any person in the community a wanton injury. 
 Thus, in Birge v. Gardiner, 19 Conn. 507, the defendant's gate between 
 his close and a public way was insecurely hung. The plaintiff, a child of 
 seven years, being in the way, climbed upon and shook the gate, which 
 fell upon and injured him. It was considered that by an application of 
 the doctrine of Lynch v. Nurdin the plaintiff might recover although he 
 were a trespasser; but it is apprehended that the facts to warrant the 
 inference of culpable and wanton carelessness were so much the stronger 
 in the latter case as to make the cases clearly distinguishable. And for 
 a case in which the contrary rule was heard upon similar facts, see 
 McEachern v. Boston & Maine Railroad, 150 Mass. 575, as cited § 78, 
 ante, and also McGuinness i>. Butler, 159 Mass. 233. So in Angus v. 
 Findlay, 24 Scot. Law. Rep. 237, the defendant had erected a shed on 
 some waste land in a town, being a place to which the public resorted 
 and where children were accustomed to play. The door of the shed was 
 not so fastened that it would resist the pressure and interference with it 
 that ought to be expected in such a place, and the door being tampered 
 with by a child, it fell upon and injured him. The defendant was held 
 to be liable for the injury, but this was expressly upon the ground that 
 the owner had put his building in a place where he knew that the public 
 were admitted by the same kind of tolerance which was extended to him- 
 self, and it was said that the case would have been different if the acci- 
 dent had happened upon private property. In Daley o. Norwich & 
 Worcester R. R., 26 Conn. 591, it was held that the defendant might be 
 liable for injuries suffered by a child of three years old playing upon its 
 track, by reason of the defendant's negligent management of a train of 
 cars, it not appearing that the negligence of the defendant was wanton. 
 But where, under similar circumstances, a child was injured by a passing 
 train, it was held as matter of law that he could not recover in the 
 absence of proof that the defendant was grossly careless. Morrissey v. 
 Eastern Railroad, 126 Mass. 377. In a case in which a child was injured 
 while playing upon the turn-table of a railroad corporation, it was held 
 in the Supreme Court of the United States, that while a railway com- 
 pany is not bound to the same degree of care as to strangers who are 
 unlawfully upon its premises, that it owes to passengers, it is not exempt 
 from responsibility to such strangers for injuries resulting from its tortious 
 acts: and the question was left to the jury to determine whether the 
 corporation exercised proper care in the premises. Sioux City & Pacific 
 Railroad Co. v. Stout, 84 U. S. 657. (See Stout v. Sioux City & Pacific 
 
124 PEESONAL INJURIES. [CHAP, H. 
 
 K. R., 2 DiU. 294.) The court said : " That the turn-table was a danger- 
 ous machine, which would be likely to cause injuiy to children who 
 resorted to it, might fairly be inferred from the injury which actually 
 occurred to the plaintifE. There was the same liability to injury to him, 
 and no greater, that existed with reference to all children. When the 
 jury learned from the evidence that he had suffered a serious injury, by 
 his foot being caught between the fixed rail of the roadbed and the turn- 
 ing rail of the table, they were justified in believing that there was a 
 probability of the occurrence of such accidents. So, in looking at the 
 remoteness of the machine from inhabited dwellings, when it was proved 
 to the jury that several boys from the hamlet were at play there on this 
 occasion, and that they had been at play upon the turn-table on other 
 occasions, and within the observation and to the knowledge of the em- 
 ployees of the defendant, the jury were justified in believing that children 
 would probably resort to it, and that the defendant should have antici- 
 pated that such would be the case.'' Under that view of the law which 
 holds that the leaving a dangerous machine unguarded is necessarily 
 negligence, as to an infant or ignorant trespasser, the finding, from the 
 occurrence of the accident, that the turn-table was a dangeroiis machine, 
 is in accordance with the principle laid down by the same court in Stokes 
 V. Saltonstall, 13 Feters, 181 (1839), that the fact that the plaintiff was 
 injured vras prima facie evidence of the defendant's negligence, — a prin- 
 ciple which has also been adopted by the court in Pennsylvania, see 
 Laing v. Colder, 8 Penn. St. 479, 484 ; Sullivan v. Philadelphia & Read- 
 ing R. R., 30 Penn. St. 234; Philadelphia & Reading R. R. v. Anderson, 
 94 Penn. St. 351, but which cannot be said to be supported by the tenor 
 of the authorities. See § 111, post. It was further held that, upon 
 the facts disclosed in the ease, "it was to be expected that the amuse- 
 ment of the boys would be found in turning this table while they were on 
 it or about it," and that this could have easily been prevented by proper 
 precautions; and the case seems to assume, as a rule of law, that the 
 owner of land or property owes to infants a peculiar duty, that is, to so 
 guard it that they shall not suffer harm while unlawfully meddling with 
 or trespassing upon. It appeared clearly, upon the facts in the case, that 
 the turn-table was easily accessible, and, when meddled with by ignorant 
 or careless persons, a d^igerous machine, and the court considered that 
 the case might well be governed by that of Lynch v. Nurdin. But it 
 would seem that the case, upon this point, is to be distinguished since, 
 in Lynch v. Nurdin, the act of the defendant in leaving his horse and 
 cart unattended in the highway was unnecessary, and so wantonly care- 
 less, while the turn-table was a fixture necessary to the carrying on of the 
 defendant's business. See § 77, ante, and cases cited. If the doctrine of 
 this ease and those which follow it be pushed to its logical conclusion, it 
 would seem clearly to establish an exception to the general rule of law in 
 favor of infants or other persona of feeble capacity, and thus, in many 
 cases, introduce the question of capacity for the determination of the 
 
§ 78.] PARTIES DEPENDANT. 125 
 
 jnry. The rule of this case -was approved in Minnesota, where it was 
 held, generally, that the owner of dangerous machinery who leaves it in an 
 open place, though on his own land, where he has reason to believe that 
 young children will be attracted to play with it and may be injured, is 
 bound to use reasonable care to protect such children from the danger to 
 which they are thus exposed. KefEe v. Milwaukee & St. Paul Railway, 21 
 Minn. 207. The court considered that leaving a turn-table ungfuarded 
 was an implied invitation to the child to meddle with it, and that there- 
 fore the defendant became liable, as to the child, as to one entering 
 premises by inducement, or at least as a licensee. But it would seem 
 that to place the rule upon this ground is to say that the act of the child 
 is not a trespass if the doing of it seems to him sufficiently attractive to 
 induce him to commit it. See McEachern b. Boston & Maine Railroad, 
 150 Mass. 515. And such a rule finds no support in the case of Lynch v. 
 Kurdin, since in that case, although it was said that the defendant ought 
 to have anticipated the plaintiS's act, it was considered that the plaintifE 
 was a trespasser. Moreover, it is a familiar rule that even the passive 
 acquiescence of the owner in the use of his premises, or failure on his 
 part to prohibit such use, is not sufficient to constitute an implied invita- 
 tion or inducement held out by him. See Galligan v. Metacomet Mf'g 
 Co., 143 Mass. 527, and cases cited § 66, ante. But it is to be observed 
 that an exception to this general rule may arise when the condition of 
 the defendant's premises is such as to induce the supposition that these 
 are open to the general public as a way, see Binks v. South Yorkshire 
 Railway, 32 L. J. (n. s.) Q. B. 26, and in such a case one trespassing 
 unwittingly upon the premises, whether an infant or an adult, may hold 
 the owner liable for injuries received by reason of dangers existing on the 
 land. The case of Keffe a. Milwaukee & St. Paul Railroad, supra, was 
 followed in O'Malley v. St. Paul, Minneapolis & Manitoba Railroad, 43 
 Minn. 289, and see Kolsti v. Minneapolis & St. Louis Railway, 32 Minn. 
 133, and Twist v. Winona & St. Paul R. R., 39 Minn. 164. In the latter 
 case it was held that the plaintifE, a boy ten and one half years old, was 
 debarred from recovery as being guilty of contributory negligence. The 
 same view of the laws obtains in Missouri ; Eoons v. St. Louis & Iron 
 Mt. R. B., 65 Mo. 592; Nagel v. Missouri Pacific Railway, 75 Mo. 653, 
 and, in Schmidt v. Kansas City Distilling Co., 90 Mo. 284, the prin- 
 ciple was affirmed as to dangerous machinery generally. In Emerson v. 
 Peteler, 35 Minn. 481, the rule was held not to apply to a case where a 
 contractor for grading a public street used cars for the conveyance of the 
 material used by him in the work, which cars were only dangerous to 
 persons attempting to ride upon them, and it was said that it was not the 
 defendant's duty to see that children did not attempt so to ride upon them. 
 But see Ratte v. Dawson, 50 Minn. 450. In Mississippi, where a munic- 
 ipal corporation made an excavation in private property of such a char- 
 acter as to entice an infant trespasser into it, to play, it was held, on the 
 authority of Sionx City, &o. Railroad i'. Stout, that the municipality was 
 
126 PERSONAL INJUEIES. [CHAP. U. 
 
 liable for the injuries received by the child by reason of the dangerous 
 character of the excavation. Mackey v. Vicksburg, 64 Miss. 777,. and see 
 Vicksburg v. McLain, 67 Miss. 4; Pekin v. McMahon, 154 III. 141. The 
 rule of the federal courts upon this subject is also followed in Texas: 
 Gulf, Colorado & Santa Fe Railway u. Styron, 66 Tex. 421; Gulf, Colo- 
 rado & S. F. Railway v. McWhirter, 77 Tex. 356; Evansich ». Gulf, Colo- 
 rado & S. F. Railway, 57 Tex. 126;. in Georgia, Ferguson v. Columbus 
 & Rome Railway, 65 Ga. 637, 77 Ga. 102; in South Carolina, Bridger v. 
 Asheville & Spartanburg R. R., 25 S. C. 24; and in Kansas, Kansas Cen- 
 tral Railway ». Fitzsimmons, 22 Kan. 606 ; Union Pacific R. R. v. Dunden, 
 37 Kan. 1. But the court in Kansas refused to apply the principle, of the 
 case where the defendant corporation had left a car unguarded, and with 
 its brake set but unlocked, upon a steep grade, and a child climbed upon 
 the car, unfastened the brake, set the car in motion, and was thereby 
 injured. Central Branch, Union Pacific R. R. v. Henigh, 23 Kan. 347. 
 It was said that the rule of the " turn-table cases," so called, does not 
 obtain as to the stock pen and chute of a railway company, so as to require 
 the company to keep this enclosed or guarded against trespassing boys, 
 it being itself a substantial enclosure. Gulf, Col. & Santa Fe R. R. v. 
 Cunningham, 7 Tex. Civ. App. 65. In Illinois, where a turn-table not 
 covered with plank or walled except where the rails of the switch inter- 
 sected, was constructed not near to any public street or place where the 
 public were in the habit of passing, but in an isolated place, and a boy 
 about nine years old, while he and other children were turning and riding 
 upon it, was injured, it also appearing that the table was latched but not 
 locked, it was held that, considering the isolated situation of the table, 
 the railroad company owning the table was not responsible for the injury. 
 St. Louis, Vandalia & Terre Haute R. R. v. Bell, 81 HI. 76. In Kerr v. 
 Forgue, 54 111. 482, and Kunz v. Troy, 104 N. Y. 344, the defendant was 
 held Uable for injuries caused to a child in the public street by the falling 
 of counters, barrels, etc., negligently piled by the defendant upon the 
 sidewalk. The cases seem to have been decided upon the ground of a 
 peculiar duty existing towards infants, but it seems that the defendant's 
 liability might well have been taken to arise out of the fact that his act 
 created a nuisance in the public street; and see also Indianapolis v. Em- 
 melman, 108 Ind. 530. In McDonald v. Union Pacific R. R., 152 U. S. 
 262, it appeared that the defendant had customarily deposited hot slack 
 from its shops or locomotives upon an open vacant lot of land owned by 
 it. At the time of the injury sued for there was a mass of such heated 
 slack upon the lot, covered with ashes and showing no appearance of heat. 
 The plaintiff, a boy twelve years old, ran across the lot and was burned. 
 The court, approving the principle of Sioux Cily, &c. Railroad v. Stout, 
 held that the plaintiff, under the circumstances disclosed, was not a tres- 
 passer and that the defendant, being negligent in its management of the 
 premises, the plaintifE might recover. In Harriman t>. Pittsburg, C. & 
 St. L. Railway, 45 Ohio St. 11, 29, the doctrine of " invitation " to infant 
 
§ 78.] PARTIES DEPENDANT. 127 
 
 trespasser was approved, but the case was determined upon other gronnda. 
 In Clarke v. Richmond, 83 Va. 355, a child, while walking on the top of a 
 coping owned by a private person adjoining the public sidewalk, fell into 
 an excavation made by the city, and it was held that, being a trespasser, 
 he could not recover for his injuries in an action brought against the 
 municipality, and that the coping was not a structure "attractive" to 
 children within the meaning of that expression as used in the cases. In 
 Kentucky, it was held, where the defendant had stacked a quantity of 
 lumber in a negligeut and dangerous manner upon his open lot abutting 
 on a public street in a city, and a child playing upon the lumber was 
 injured, that it was the defendant's duty to make the lumber reasonably 
 safe, and that he was answerable in damages for the injury to the child. 
 Bransom v. Labrot, 81 Ky. 638, distinguishing Louisville &, Portland 
 Canal Co. v. Murphy, S Bush, 522. See Briiikley Car Co. v. Cooper, 60 
 Ai'k. 545 ; Catlett v. Railway Co., 57 Ark. 461; Passamaneck v. Louisville 
 R. R., 98 Ky. 195. In Frost v. Eastern R. R., 64 N. H. 220 (1886), a 
 case in which the plaintiff, a child, had suffered injury by reason of his 
 meddling with a railroad tnrn-table, Clark, J., said : " We are not pre- 
 pared to adopt the doctrine of Railroad Co. v. Stout, 17 Wall. 657, and 
 cases following it, that the owner of machinery or other property attrac- 
 tive to children is liable to children wrongfully interfering with it on his 
 own premises. The owner is not an insurer of the safety of infant tres- 
 passers. One having in his possession agricultural or mechanical tools is 
 not responsible for injuries caused to trespassers by careless handlings, 
 nor is the owner of a fruit-tree bound to cut it down or enclose it, or to 
 exercise care in securing the staple and lock with which his ladder is 
 fastened, for the protection of trespassing boys who may be attracted by 
 the fruit Neither is the owner or occupant of premises upon which there 
 is a natural or artificial pond, or a blueberry pasture, legally required to 
 exercise care in securing his gates and bars to guard against accidents to 
 straying or trespassing children. The owner is under no duty to a mere 
 trespasser to keep his premises safe, and the fact that the trespasser is an 
 infant does not raise a duty where none otherwise exists." See also 
 Nolan V. New York, N. H. & H. R. R., 53 Conn. 461 ; Wood p. Indepen- 
 dent School District of Mitchell, 44 Iowa, 27; Mangan v. Atterton, L. R. 
 1 Exch. 239, and cases cited aiUe, §§ 76, 77. In Daniels v. New York & 
 N. E. R. R., 154 Mass. 349, it was held that a child attracted to railroad 
 premises by a turn-table left unlocked or unguarded thereon, near a public 
 highway, or in an open or exposed position near the accustomed or prob- 
 able place of resort of children, cannot recover for personal injuries sus- 
 tained while at play upon the turn-table ; either on the ground that the 
 defendant held out to the cliild an implied invitation to come there, or 
 on the ground of a duty subsisting on the part of the defendant to pre- 
 vent children from interfering or playing with the turn-table. The opinion 
 in the case contains an elaborate discussion of the similar reported cases, 
 and holds that the question of liability is to be determined by the oidi- 
 
128 PERSONAL INJURIES. [CHAI*. H. 
 
 (c) As to Licensees. 
 
 § 79. Owner's Obligation to, Generally. — A mere naked 
 license or permission to enter upon the premises will not 
 create a duty in favor of the person entering, or impose upon 
 the owner or tenant who grants the license an obligation to 
 provide against dangers or accidents which may arise out of 
 the existing condition of the premises ; for the licensee goes 
 upon the premises " subject to all the dangers attending his 
 going ; " ^ and so enjoys the license subject to its concomitant 
 perils.^ Thus-, the owner is not liable for injuries received by 
 
 nary rules which obtain as between the owners of property and trespassers 
 or intruders thereon ; and that, therefore, the case is governed by former 
 Massachusetts decisions in which the ordinary rules as to liability are 
 applied. (See Morrissey v. Eastern K. R., 126 Mass. 377; Wright v. 
 Boston & Albany R. R., 142 Mass. 206 ; McEachern v. Boston & Maine 
 R. R., 150 Mass. 515 ; MoCarty v. Fitchburg R. R., 154 Mass. 17); and 
 the court say : " The plaintiff was a mere trespasser on the land of the 
 defendant. We find no evidence of any invitation by the defendant, or 
 inducement held out to him to go there, and no evidence of a breach 
 of any duty which it owed him." 
 
 1 Holmes v. Northeastern Railway, L. R. 4 Ex. 254; Sullivan v. 
 Waters, 14 Ir. C. L. 460; Nicholson v. Erie R. R., 41 N. Y. 529; Beck 
 V. Curtis, 68 N. Y. 283 ; Parker ». Portland Publishing Co., 69 Maine, 
 173; Files ». Boston & Albany R. R., 149 Mass. 204, 206; Reardon v. 
 Thompson, 149 Mass. 267; Blackman v. Toronto Street Railway, 38 U. 
 C. Q. B. 173; Splittorf v. State, 108 N. Y. 205. Where a person built 
 a bridge from his own land on one side of a stream to the public highway 
 on the other, which bridge had been more or less used by the public, but 
 without invitation or any advantage accruing to the owner from such 
 user, and the bridge had become visibly decayed, and the plaintiff, for 
 his own pleasure merely, and without invitation from the defendant, at- 
 tempted to cross it, and in so doing was injured, it was held that the 
 defendant owed the plaintiff no duty as to the bridge, and was not re- 
 sponsible for the injury. Cusick v. Adams, 115 N. Y. 55. It was held 
 that a landowner was not liable to a mere licensee for injuries which the 
 latter suffered by reason of an excavation existing by the side of a private 
 way built by the landowner for his own accommodation through his own 
 land, unless it appeared that the landowner was informed of the dan- 
 gerous condition of the road. Eisenberg v. Missouri Pacific R. R., 33 
 Mo. App. 85. 
 
 2 Sweeny v. Old Colony & Newport E. R., 10 Allen, 368 ; Zoebisoh », 
 Tarbell, 10 Allen, 885. 
 
§§ 78-79.] PARTIES DEFENDANT. 129 
 
 a licensee by falling into an excavation left unfenced upon the 
 land,^ or by the existence of obstructions, as logs, lying in the 
 path.2 Nor is the owner of a building bound to fence or 
 enclose dangerous machinery contained in it for the protec- 
 tion of a mere licensee.' It is said that, as respects his 
 remedy against the owner or occupant for injuries received 
 upon the land, a licensee holds a more favorable position than 
 a trespasser, but the different principles which govern the 
 respective cases have not been clearly defined. It is appre- 
 hended that as the owner must be taken to be affected with 
 knowledge of the licensee's user of the premises, he may 
 therefore be bound to exercise a stricter care than he would 
 be held to exercise were he ignorant of such user, and espe- 
 cially may he be bound not to create upon the land dangers 
 such as did not exist at the granting of the license and which 
 the licensee ought not to be bound to anticipate. Thus, as to 
 the liability of railway companies to persons entering upon 
 their tracks by license, it is said : " We think there is a very 
 clear distinction between the care which a railroad company 
 is bound to exercise towards a mere trespasser and one who is 
 on its right of way by the license of the company. In the 
 case of the mere trespasser, the company or its servants have 
 no cause to anticipate that he will be on the track or in the 
 way of danger, and, therefore, a mere neglect to keep a look- 
 out might not be such neglect as would render the company 
 liable for running upon or injuring him." But " where the 
 company know that the right of way is constantly used with 
 its acquiescence by the public as a footway, its servants are 
 charged with notice that it will be so used, and they cannot, 
 without fault, proceed in a manner which must necessarily be 
 dangerous to the persons so using the same." * It is held 
 
 1 Blithe V. Topham, Cro. Jac. 168; Jordin v. Crump, 8 M. & W. 782; 
 Hardcastle v. South Yorkshire Railway, 4 H. & N. 67 ; Hoausell v. Smyth, 
 7 C. B. (n. s.) 731; Reardon v. Thompson, 149 Mass. 267. 
 
 » See Deane v. Clayton, 7 Taunt. 522. 
 
 * Matthews v. Bonsee, 51 N. J. L. 30 ; Larmore v. Crown Point Iron 
 Co., 101 N". T. 391 ; Galveston Oil Co. v. Moi-ton, 70 Tex. 400. 
 
 * Davis V. Chicago & Northwestern Railway, 58 Wis. 646. See Thomas 
 V. Chic, M. & St. P. R. R., 103 Iowa, 651 ; Norfolk & Western R. R. v. 
 WUson, 90 Va. 263; Blankenship v. Ches. & Ohio R. R., 94 Va. 449; 
 
 9 
 
130 PEESONAL INJURIES. [CHAP. 11. 
 
 that a railroad which has licensed the use of its grounds and 
 track by pedestrians for a way is bound to provide for a care- 
 ful lookout in the direction in which a train is moving, in 
 places where people are likely to be on the track, and to signal 
 the approach of trains to persons in positions of danger.* A 
 statute which makes it unlawful to walk along the track of 
 a railroad has no application to a licensed path in and about 
 station grounds.^ 
 
 § 80. Invitatton and License. — In cases of doubt, it may 
 be a difficult question of fact whether the person entering the 
 premises comes by implied invitation of the owner or whether 
 he is a licensee merely. It would seem that where the owner 
 permits a constant use of his premises to all persons without 
 objection, although in such a case there is an implied invita- 
 tion to the public, each person availing himself of it enters the 
 premises as a licensee merely.* One who enters the plaintiff's 
 premises, as by an implied invitation, to transact business 
 with the plaintiff, and, after he has transacted his business, 
 lingers upon the premises without excuse or necessity, is, at 
 best, a licensee ; as where a person remains in a railway 
 station after a train has gone which he came to the station 
 intending to take, but missed.* One entering premises by 
 invitation is bound to use the ordinary ways of access and 
 egress, these being reasonably safe and sufficient, and, if he 
 
 Philadelphia & Reading R. R. v. HnmmeU, 44 Penn. St. 279 ; Burton v. 
 Western & Atlantic R R., 99 Ga. 783; Seymour v. Cent. Vt. R.R., 69 Vt. 
 555. 
 
 1 Johnson v. Lake Superior Terminal Co., 86 Wis. 64; Hammill v. 
 Louisville & N. R. R., 93 Ky. 343. 
 
 2 Mason v. Chic, R. I. & Pac. R. R., 89 Wis. 151. 
 
 « Hooker v. Chicago, M. & St. P. R. R., 76 Wis. 542; Redigan o. Bos- 
 ton & M. R. R., 155 Mass. 44. 
 
 * Heinlein v. Boston & Providence R. R., 147 Mass. 136. See, also, 
 Pittsburg, Fort Wayne & Chicago R. R. v. Bingham, 29 Ohio St. 364. 
 It has been held that a member of a fire department who in the discharge 
 of his duty enters a building to extinguish a fire enters as a licensee 
 merely, and if while there he falls into a negligently guarded elevator 
 well, the owner of the building is not liable. Beehler v. Daniels, 18 R. I. 
 563 
 
§§ 79-81.J PARTIES DEFENDANT. 131 
 
 takes some other way, he becomes a licensee.* Ordinarily, 
 a naked permission gives a license merely.^ 
 
 § 81. As to Notice. — It appears to have been held in Eng- 
 land that the owner of land is not, as to a licensee, to be held 
 responsible for an accident if he had no knowledge of the de- 
 fect that caused it ; ^ but this would not seem to be a sound 
 rule, and it is certain that it is the duty of the owner to warn 
 the licensee of any particular danger to which the latter will 
 be exposed in coming upon the premises, which danger is 
 known, or ought to be known, to the owner but not to the 
 tf 
 
 1 Armstrong v. Medbnry, 67 Mich. 250. 
 
 * Benson v. Baltimore Traction Co., 77 Md. 535; Bolch v. Smith, 7 H. 
 & N. 736. In the latter case, it appeared that the plaintiff, a workman 
 for the defendant, was injured by coming in contact with an unguarded 
 revolving shaft which extended across a path leading to closets in the rear 
 of the defendant's works, which closets and path the plaintiff and his 
 fellow- workmen had been accustomed to use by the permission of the de- 
 fendant. It appeared that there was another way over the defendant's 
 land by which the plaintifi might have reached the closets without expos- 
 ing himself to danger from the shaft. It was held that the plaintiff could 
 not recover, on the ground that he was a licensee merely, and Martin, B., 
 said : "It is said that the plaintiff had aright to go along the path across 
 which the machinery was erected. . . . But that is a fallacious argument. 
 It is true that the plaintiff had permission to use the path. Permission 
 involves leave and license, but it gives no right. If I avail myseU of per- 
 mission to cross another man's land, I do so by virtue of a license, not of 
 a right. . . . It is an excuse or license, so that the party cannot be treated 
 as a trespasser." Wilde, B., concurred. It would seem that the court 
 here use the term " right " as limited in its meaning to express the owner- 
 ship of a corporeal hereditament, that is, of the soil and of the erections 
 upon it, or at least of an easement therein ; for it would seem to be obvi- 
 ous that a permission must, until revoked, always give the right to do the 
 thing permitted without wilfid or malicious molestation on the part of 
 the person giving the permission, and it is believed that, if the case is 
 intended to express a different rule, it cannot be supported either by 
 principle or authority. 
 
 » Welfare v. London & B. Railway, L. R. 4 Q. B. 693 ; Southcote v. 
 Stanley 1 H. & N. 247. Commenting on this case, Cockbum, C. J., 
 says that he conceives that it stands entirely upon the relation of host 
 and guest, and was decided upon this principle that one who chooses to 
 become a guest cannot complain of the insufficiency of the accommodation 
 afforded him. Corby v. Hill, 4 C. B. (n. 8.) 556, 565. No authorities 
 are cited to support the principle thus stated by implication. 
 
132 PERSONAL INJURIES. [CHAF. 11. 
 
 licensee.^ For it is obvious that the licensee enters the premises 
 by right, though solely for his own advantage, so long as the 
 license subsists, and so is entitled to a reasonable protection. 
 Thus, the owner of land may render himself liable to one 
 whom he has licensed to come upon the premises, if he makes 
 any change in the condition of the land which adds to the 
 danger of entering upon it, and fails to inform the licensee of 
 such change, the latter being ignorant of it.^ But it has been 
 held that the owner will not be put upon inquiry to find dan- 
 gers on his premises, nor be responsible for their existence 
 unless they be obvious.^ 
 
 SECTION vn. 
 
 LIABILITY OF THE OWNER OP LEASED PROPERTY. 
 
 (a) To the Tenant. 
 
 § 82. Generally : Does not warrant the Condition of the Prem- 
 ises : Tenant takes the Risk. — In the ordinary contract of let- 
 ting, the law does not imply any warranty on the part of the 
 landlord that the leased premises are in a safe or inhabitable 
 condition,* since the tenant, ordinarily, has it in his power to in- 
 
 '^ Samuelson v. Cleveland Iron Mining Co., 49 Mich. 164; McKone w 
 Mich. Central R. R., 51 Mich. 601 ; Powers v. Harlow, 53 Mich. 507. In 
 the latter case the license was to come upon the pr'emises to transact busi- 
 ness with the owner, and would thus seem to amount to an implied 
 invitation. 
 
 2 Corby v. Hill, 4 C. B. (n. s.) 556; Gautret v. Egerton, L. R. 2 C. P. 
 371 ; Bennett v. Louisville & Nashville R. R., 102 U. S. 577 ; New Orleans, 
 M. & C. R. R. I). Hanning, 15 Wall. 649. 
 
 * Larmore v. Crown Point Iron Co., 101 N. Y. 391. In this case it 
 was held that one who went upon the land of another without invitation, 
 for the purpose of obtaining employment from the owner of the land, 
 was not entitled to recover damages for injuries caused by a defective 
 machine on the premises, not obviously dangerous, and that although 
 the owner could have ascertained the defect by the exercise of reasonable 
 care, yet he owed the plaintiff no duty to keep the machinery in repair. 
 
 * There are authorities which hold that where premises are let for pur- 
 poses of occupation, there is an implied condition that they shall be fit for 
 use. See Smith v, Marrable, 11 M. & W. 5; Edwards v. Hetherington, 
 
§§ 81-83.] PARTIES DEPENDANT. 133 
 
 spect the premises, and so accepts the tenancy at his own risk, 
 there being no fraud or concealment on the part of the land- 
 lord, and the existing defects or dangers being apparent to a 
 careful observer.^ If therefore during his tenancy the tenant, 
 or his servant, suffers a personal injury by reason of the de- 
 fective or dangerous condition of the premises, or their faulty 
 construction, he, generally, cannot hold the landlord respon- 
 sible therefor.2 This is so although, as to the preceding ten- 
 ant, the landlord may have been guilty of trespass by stripping 
 the premises.' 
 
 § 83. So as to Persons in Privity with the Tenant. — Since 
 the possession of the leased premises is in the tenant, persons 
 who occupy by his permission, or as members of his family, 
 cannot be considered as occupying by the invitation of the 
 landlord, and the right of such persons to sue for injuries 
 received upon the premises is to be measured by the same 
 rules, and is subject to the same limitations, as the right of 
 the tenant himself. This rule will be applied as to the ser- 
 
 7 D. Se R. 117 ; Collins v. Barrow, 1 M. & R. 112 ; Salisbury v. Marehall, 
 4 C. & P. 65 ; Cowie v. Goodwin, 9 C. & P. 378; Gilhooley ». Washington, 
 4 N. Y. 217; but see contra and expressing the general rule, Sutton v. 
 Temple, 12 il. & W. 52 ; Hart v. Windsor, 12 M. & W. 68; Chappell v. 
 Gregory, 34 Beav. 250; Carstairs v. Taylor, L. R. 6 Exch. 217; Cleves 
 V. Willoughby, 7 Hill, 83 ; Button v. Gerrish, 9 Gush. 89 ; Royce o. Gug- 
 genheim, 106 Mass. 202; Elliot o. Aiken, 45 N. H. 36. The Civil Code 
 of California, § 19-11, provides that the lessor of a building intended for 
 the occupation of human beings must, in the absence of an agreement to 
 the contrary, pat it in a condition fit for occupation, and repair all subse- 
 quent dilapidations which render it untenantable. See Wilson r. Tread- 
 weU, 81 Cal. 58. 
 
 1 See Taylor, Landlord & Tenant, 8th ed., §§ 175 n., 327, 328, 382, and 
 cases cited; Wilson v. Finch Hatton, L. R. 2 Exch. 236; Bowe v. Hunk- 
 ing, 135 Mass. 380; Booth v. Merriam, 155 Mass. 521; Moynihan v. Allen, 
 162 Mass. 270; EaHn b. Brown, 1 E. D. Smith, 36. 
 
 2 JafEe V. Hartean, 56 N. T. 398 ; Fi-eeman ii. Hunnewell, 163 Mass. 
 210 ; Taylor, Landlord & Tenant, 8th ed., § 175 a, notes and cases cited. 
 
 * Peterson v. Smart, 70 Mo. 34. It has been hold that the landlord was 
 liable to the tenant for injuries resulting from failure to repair. See John- 
 eon p. Dixon, 1 Daly, 298 ; Eagle v. Swayze, 2 Daly, 140. But these cases 
 are not law, and the former case was overruled in Arnold v. Clark, 45 N. 
 Y. S. C. 252. 
 
134 PERSONAL INJUEIE8, [CHAP. II. 
 
 vant, employee, or customer of the tenant. Thus, where the 
 employee of the tenant of a store, knowing that he was for- 
 bidden by posted notices to pass up and down on the freight 
 elevator therein, did so pass and was thereby injured, it was 
 held that he could not recover for his injuries as against 
 the owner of the building ; and this although it was cus- 
 tomary for his fellow-employees so to use the elevator ; since 
 the owner had no notice that the elevator was used except for 
 merchandise.^ And the ordinary liability of the landlord to 
 his tenant does not subsist as to a subtenant, when the occu- 
 pancy is without the assent of the landlord, express or 
 implied.^ 
 
 § 84. O'wner liable for the Results of Fraudulent Concealment. 
 
 — If however the landlord is guilty of misrepresentation or 
 wilful concealment as to defects or dangers upon the premises 
 which the tenant cannot detect upon a fair inspection, and such 
 defects or dangers cause injury to the tenant, the landlord 
 will be legally responsible for injuries caused thereby. So the 
 landlord was held liable for damages resulting to the tenant 
 from defective drains, the condition of which he had not fairly 
 stated to the tenant before the contract of letting was made.^ 
 Where the defendant being the owner of a tenement house 
 knew that it was so infected by the small-pox as to be unfit 
 for occupation, and to endanger the health or lives of its 
 occupants, and concealed this knowledge from the plaintiff in 
 order to induce him to hire the tenement, and so leased it to 
 the plaintiff, and the plaintiff entered into occupation, and 
 with his children took the disease, the defendant was held 
 to be guilty of actionable negligence, and liable for whatever 
 injury the plaintiff sustained by reason thereof.* So where 
 
 1 McCarthy v. Foster, 156 Mass. 511. 
 
 2 Cleves ... Willoughby, 7 Hill, 83; Jaffa v. Hartean, 56 N. T. 398; 
 O'Brien v. Capwell, 59 Barb. 497 ; Donaldson v. Wilson, 60 Mich. 86 ; 
 Ilazlett p. Powell, 30 Penn. St. 293; Nelson v. Liverpool Brewing Co., 
 L. R. 2 C. P. D. 311 ; Hart v. Windsor, 12 M. & W. 68; Keates v. Cadi- 
 gan, 10 C. B. 591 ; Robbins v. Jones, 15 C. B. (n. s.) 221. 
 
 » Wilson V. Finch Hatton, L. R. 2 Exch. 236. See Scott v. Simons, 54 
 N. H. 426; Scanalzreid v. White, 97 Tenn. 36. 
 
 * Minor ». Sharon, 112 Mass. 477; Cowen v. Sunderland, 145 Mass. 
 
§§ 83-85.] PARTIES DEFENDANT. 135 
 
 the owner of a ■wharf lets it, knowing, or in position to know, 
 that it is dangerously defective, he may be liable for an injury 
 occurring by reason of such defect to an employee of the ten- 
 ant engaged on the wharf about the tenant's business and in 
 the exercise of due care.^ It is the general rule that, in order 
 to hold the landlord responsible for injuries resulting from 
 the existence of concealed defects in the premises, it must 
 appear that he knew of the existence of them and wilfully 
 concealed this from the tenant; or at least that they were 
 of such a character that the landlord could not have been 
 ignorant of their existence unless he had been grossly negli- 
 gent.^ But it seems to have been considered in Massachusetts 
 that in order to a recovery by the tenant it is not necessary 
 to show that the landlord had actual knowledge of the defect, 
 it being his duty to exercise due care to keep the premises in 
 proper condition for occupation.^ 
 
 § 85. Or for Injuries on Part of the Premises of •which he re- 
 tains the Control. — When the landlord retains possession or 
 control of a part of premises the rest of which are under lease, 
 
 363. See, also, Cesar v. Karutz, 60 N. T. 229, in which the facts were 
 otherwise similar, but it did not appear that there was any intentional 
 concealment on the landlord's part, and the decision rested upon the non- 
 performance by the defendant of his duty to inform the tenant of the 
 danger. A tenant may rely on the declarations of the landlord that there 
 is no infectious disease on the premises, and is not put upon further in- 
 quiry. Snyder t>. Gordon, 46 Hun, 538. Where a well on the demised 
 premises was polluted by the carcass of a dead dog, and the tenant in 
 possession complained to the landlord of the bad quality of the water, and 
 the landlord made an examination of the well and discovered the carcass, 
 but concealed the discovery from the tenant, he was held liable for the 
 injury caused to the tenant's family by the polluted water. Maywood ». 
 Logan, 78 Mich. 135. 
 
 1 Wendell v. Baxter, 12 Gray, 494. 
 
 ^ See cases cited supra, and also Blake v. Ranous, 25 HI. App. 4S6. 
 8 Lindsey v. Leighton, 150 Mass; 285. In this case it was held further 
 that where the tenant received injury by reason of the defective condition 
 of the leased premises, and it appeared that the title of the premises was 
 in the defendant's wife, but that the defendant assumed to be the owner, 
 and conducted himself as such, both before and after the accident, and, as 
 such made the contract of letting with the plaintiff, he could not escape 
 liability by showing want of title. 
 
136 PERSONAL INJURIES. [CHAP. 11. 
 
 his liability for injuries suffered by his tenant by reason of 
 defects or dangers in the premises will depend on the charac- 
 ter of his possession, as being joint with the tenant, or exclu- 
 sive ; and on the degree of the control which he exercises. If 
 such control or possession be exclusive on his part, he may 
 be liable to the tenant as to a third person.^ Thus, a landlord 
 of rooms in a building is liable for injuries resulting to one of 
 his tenants by reason of defects in the common staircase aris- 
 ing from his failure to use reasonable care in keeping the 
 staircase in repair.^ For the rule that the landlord does not 
 warrant the condition of the tenement does not apply to parts 
 of the premises of which he retains exclusive control.^ It has 
 been held, however, that there is no obligation on the part of the 
 landlord to reconstruct the ways or passages on a different plan, 
 if these, as they existed at the time of the letting, were not 
 altogether safe and convenient by reason of some fault in the 
 original plan, which fault the tenant knew or which was ap- 
 parent on inspection.* So if the defect alleged be only a con- 
 tributing cause of the injury, the proximate cause being some- 
 thing for which the lessor is not responsible, the latter is not 
 responsible ; as where ice and snow accumulated upon a stair- 
 way, alleged to be of improper construction, and the tenant 
 slipped thereon and was injured.^ Nor will the lessor be re- 
 sponsible for a defect if the tenant has free access to it and 
 the means of remedying it, or if he entered upon the premises 
 with actual or implied notice of its existence.® 
 
 1 Tenant!). Goldwin, 2 Ld. Kaymond, 1019; Carstairs v. Taylor, L.K. 
 6 Exch. 217; Dunn u. Birmingham Coal Co., L. R. 7 Q. B. 244; Rob- 
 bins V. Mount, 4 Rob. (N. Y.) 553; Taylor v. Bailey, 74 Bl. 178; Ward 
 V. Fagan, 28 Mo. App. 116. See DoUard v. Roberts, 28 N. Y. S. Rep. 
 (1890) 569. 
 
 2 Donohue v. Kendall, 50 N. Y. S. C. 386 ; Looney v. McLean, 129 
 Mass. 33 ; Leydecker v. Brintnall, 158 Mass. 292 ; Wilcox v. Zane, 167 
 Mass. 302 ; Robcins v. Atkins, 168 Mass. 45 ; Victory v. Foran, 56 N. Y. 
 S. C. 507; Sawyer ». McGillicuddy, 81 Maine, 518. 
 
 » Toole V. Beckett, 67 Maine, 544, but see Purcell v. English, 86 Ind. 
 34. 
 
 * Woods V. Naumkeag Steam Cotton Co., 134 Mass. 357; Quinu v. 
 Perham, 151 Mass. 162. 
 
 ^ Woods V. Naumkeag Steam Cotton Co. , 134 Mass. 357. 
 
 * See § 84, and cases cited, supra. 
 
§§ 85-87.] PARTIES DEFENDANT. 137 
 
 § 86. Owner undertaking Repairs liable for Negligence therein. 
 — Although a landlord is not under obligation to make repairs 
 upon the leased premises, unless a stipulation for such repairs 
 is a part of the contract between the parties, yet if he 
 undertake to make repairs, although gratuitously, he is bound 
 to the exercise of ordinary care and skill in carrying them 
 out, and, if he fail in this and thereby injury result to his 
 tenant, he will be liable therefor.^ For it is a familiar rule 
 that an action may be maintained for an injury occasioned by 
 want of due care and skill in doing what the defendant prom- 
 ised to do, although there was no consideration for the prom- 
 ise.^ Upon this subject it was said : " It is argued, that upon 
 a gratuitous undertaking of this nature the defendant could 
 only be held responsible for bad faith or for gross negligence. 
 . . . But in assuming to make the repairs ... he must be 
 considered as professing to have the requisite skill, . . . and 
 as undertaking to select and furnish the kind and quality of 
 materials appropriate to the accomplishment of the desired 
 object. . . . The true question . . . was whether the defend- 
 ant had discharged the duty which he had assumed, with that 
 due regard to the rights of the other party which might 
 reasonably have been expected of him under all the circum- 
 stances. His undertaking required the skill ... of an or- 
 dinary mechanic, and his failure to furnish it, either because 
 he did not possess, or neglected to use it, would be gross 
 negligence." ^ 
 
 § 87. Or for hia Overt Acts of Negligence. — While the land- 
 lord is not bound to remove obstructions, upon a part of the 
 premises wholly or partly within his control, which arise from 
 the operation of natural causes, or the acts of strangers, and 
 are not in the nature of defects in the premises themselves, he 
 
 1 Gillp. Middleton, 105 Mass. 477; Hine v. Gushing, 53 Hun, 319; 
 Little V. Macadaras, 38 Mo. App. 187; Gregor v. Cady, 82 Maine, 131; 
 Regina v. Watts, 1 Salk. 137 ; EusseU v. Shenton, 3 Q. B. 449. 
 
 2 See Benden v. Manning, 2 N. H. 289, 291 ; Thorn v. Deas, 4 Johns. 
 84; Elsee v. Gatward, 5 T. R. 143 ; Slater ». Barker, 2 Wils. 389; Cogga 
 V. Barnard, Com. Rep. 138 ; Riley v. Lissner, 160 Mass. 330. 
 
 s Gill V. iMiddleton, 105 Mass. 477, and see Steamboat New World o. 
 King, 16 How. 469. 
 
138 PERSONAL INJURIES. [CHAP. JI. 
 
 will always be liable to his tenant for injuries arising from 
 obstructions caused by his own active negligence. Thus it is 
 said that the landlord might be responsible for negligently 
 leaving a coal scuttle in a dangerous position in a passage- 
 way used by his tenant, but not for failing to remove one so 
 placed by another person. Upon this principle, a landlord 
 who let tenements in a building to different tenants with a 
 right of way in common over an uncovered piazza annexed 
 to the building and extending its whole length and over steps 
 leading from the end of the piazza to the street, was held to be 
 liable for an injury received by the tenant from falling upon 
 ice accumulated on the piazza and steps, by reason of water 
 flowing thereon from a defective pipe connecting with the 
 roof of the building.^ 
 
 § 88. Violation of Statute Regulation by the O'v^ner, Effect of. 
 — When the statute imposes some special duty upon the land- 
 lord in respect to maintaining the leased premises in a safe 
 condition, as to provide suitable means of escape therefrom in 
 the case of fire, a tenant in occupation may sue for the breach 
 of such duty which has caused him an injury, and his occu- 
 pancy of the premises for a reasonable time after discovering 
 the absence of such suitable means within which time he may 
 notify the landlord of such absence, will not deprive him of 
 his remedy under the statute. This is upon the general prin- 
 ciple that when the statute imposes a duty, any person hav- 
 ing an interest in the performance of that duty may sue for 
 an injury caused by a breach thereof. And where injury re- 
 sults from the violation by the defendant of a statutory duty, 
 this is proof, and, in the absence of contributing causes, con- 
 clusive proof, of the defendant's negligence.^ But if the vio- 
 
 1 Watkins v. Goodall, 138 Mass. 533. This case is distinguished from 
 that of Woods ». Naumkeag Cotton Co., 134 Mass. 357, see § 85, ante, in 
 that, in the latter case, the accumulation of snow and ice was due to the 
 operation of natural causes, and not, as here, to a defect in construction 
 for which the landlord was liahle. See Alger v. Kennedy, 49 N. Y. 109 ; 
 Totten V. Phillips, 52 N. Y. 254; Kimmell a. Burfeind, 2 Daly, 155; 
 Worfchington ti Parker, 11 Daly, 545; Alston v. Grant, 3 El. & Bl. 128. 
 
 ^ Willy I). MuUedy, 78 N. Y. 310; Hover v. Barkhoff, 44 N. Y. 113; 
 Heeney v. Sprague, 11 R. L 456. When, by the terms of the act, it is to 
 
§§ 87-89.] PARTIES DEFENDANT. 139 
 
 lation of the statute is not the proximate cause of the injury 
 complained of, the weight of authority is in favor of the rule 
 tliat the defendant is not, by the mere fact of" the occurrence 
 of the injury, necessarily made liable therefor.^ 
 
 (b) To Third Persons. 
 
 § 89. Generally : Iiandlord liable for NuiSEUice permitted. — 
 Although the premises be leased and in the occupation of the 
 tenant, yet the landlord may be liable to third persons for in- 
 juries resulting from the faulty or defective construction of 
 the building or the appurtenances thereto.^ And this liability 
 may subsist although the plaintiff entered the premises at the 
 invitation of the tenant.^ So the landlord may be liable if 
 the injuries result from the ruinous condition of the premises 
 at the time of the letting.* But it is clear that this liability 
 can subsist, when it is not created by the terms of an express 
 contract, only when there has been some misfeasance on the 
 part of the landlord. It is said : " We think there are only 
 two ways in which landlords or owners can be made liable in 
 the case of injury to a stranger by the defective repairs of 
 premises let to a tenant, the occupier, and the occupier alone, 
 being prima facie liable : first, in the case of a contract by the 
 landlord to do repairs when the tenant can sue him for not 
 i-epairing ; secondly, in the case of a misfeasance by the land- 
 lord, as, for instance, when he lets the premises in a ruinous 
 condition. In either of these cases we think an action would 
 lie against the owner." ^ Thus the landlord may be liable for 
 
 be accepted by the town or city before taking effect, the fact of the ac- 
 ceptance is to be proved before the defendant can be charged with liabil- 
 ity under the act. Handyside v. Powers, 145 Mass. 123. 
 1 See §§ 111, 111 a, post, and cases cited. 
 
 * See Swords v. Edgar, 59 N. Y. 28; Wenzler «. McCotter, 22 Hun, 
 60; Picard v. Collins, 23 Barb. 444; Durant ■/. Palmer, 5 Dutch. 544; 
 Reading v. Eeiner, 167 Penn. St. 41; Scott v. Simons, 54 N. H. 426; 
 King V. Pedley, 1 Ad. & El. 827. 
 
 » Learoyd v. Godfrey, 138 Mass. 315. 
 
 * See Bellows v. Sackett, 15 Barb. 96; Moody v. Mayor, 43 Barb. 482; 
 Eakin v. Brown, 1 E. D. Smith, 642; Peoria v. Simpson, 110 111. 294; 
 Eeichenbacher v. Palmeyer, 8 Bradw. (HI.) 217; Marshal v. Head, 59 
 Tex. 266. 
 
 * Nelson v. Liverpool Brewing Co., L. R. 2 C. P. D. 311. 
 
140 PERSONAL INJURIES. [CHAP. II. 
 
 the existence of a nuisance on the premises, when, and not 
 otherwise, he is responsible for its existence, or when it exists 
 upon a part of the premises of which he has the control.^ As 
 between the landlord and tenant, the latter is presumptively 
 liable for a nuisance on the premises unless the lease con- 
 templates its continuance, in which case both landlord and 
 tenant will be liable.^ And if the landlord renews a lease, 
 or grants a new lease, while a nuisance on the premises 
 continues, he may be liable for any injury to third persons 
 occurring by reason of the nuisance.^ If the nuisance is pro- 
 
 1 But the owner may be liable for injuries to persons having lawful 
 occasion to use a building, such injuries being caused by a defect, as an 
 opening, in the sidewalk, in front of the building, left there in the con- 
 struction of the building, although the building itself is in the occupation 
 of a tenant. Larue v. Farren Hotel Co., 116 Mass. 67; Tomle v. Hamp- 
 ton, 28 111. App. 142, 129 HI. 379. See Davis v. Michigan Bell Telephone 
 Co., 61 Mich. 307. 
 
 " Per Cooley, J., in Samuelson v. Cleveland Iron Mining Co., 49 Mich. 
 164, and see Irvine v. Wood, 51 N. Y. 224; Swords v. Edgar, 59 N. Y. 28; 
 Smith u. Elliott, 9 Penn. St. 345; Pillsbury v. Moore, 44 Maine, 154; 
 McDonough v. Gilman, 3 Allen, 264 ; Helwig v. Jordan, 53 Ind. 21 ; Grady 
 V. Wolsner, 46 Ala. 381 ; Todd v. Flight, 9 C. B.- (n. s.) 377 ; Kirby v. 
 Boylston Market Ass'n, 14 Gray, 249. 
 
 ' See Taylor, Landlord & Tenant, 8th ed. § 175 n. 2, and cases cited ; 
 Kalis V. Shattuck, 69 Cal. 593. " If a nuisance is created during a term 
 already existing, no liability falls on the landlord pending that term, for 
 the reason that he has no legal means of abating the nuisance. He cannot 
 enter upon his tenant's possession for that purpose, and would be a tres- 
 passer if he did so. But when the term expires, his right of entiy and 
 power to abate at once arise, and for that reason a liability commences. 
 If he declines to re-enter and abate the nuisance, and relets the premises, 
 the liability which arose at the termination of the term will be neither 
 discharged nor evaded." Kankin u. Ingwersen, 42 N. J. L. 481. See also 
 Rex u. Pedley, 5 Ad. & El. 822; Rich v. Basterfield, 4 C. B. 782; Clancy 
 V. Byrne, 56 N. Y. 129. A landlord has been held liable for the existence 
 of a nuisance on the leased premises where the tenancy was from year to 
 year and so terminable by notice, which the landlord failed to give. Gandy 
 V. Jubber, 5 Best & Smith, 87. Where the defendant came into posses- 
 sion, in fee, of a wharf, subject to an outstanding lease, which wharf was 
 defective and out of repair when the lease was executed, it was held that 
 without notice of the condition of the wharf the defendant was not liable 
 to a third person injured thereby, although the lease gave the lessors the 
 right to enter to make repairs at their option, but did not bind them to do 
 so. Ahem v. Steele, 115 N. Y. 203. 
 
§§ 89-90.] PARTIES DEPENDANT. 141 
 
 duced only by the act of the tenant, he only is responsible 
 therefor.^ 
 
 § 90. Iiiability of Landlord dependent on Degree of Control he 
 exercises. — It is obvious that if the landlord assumes and 
 exercises entire control of the premises he will be liable to 
 third parties for injuries received thereon in the same manner 
 as he would be were there no lease subsisting.^ But there often 
 arise difficult questions of fact in determining whether the ac- 
 cident occurred upon a part of the premises whiph remained 
 under the control of the landlord or the control of which he 
 had assumed. Thus it was held that under a contract with 
 reference to a public market, by which the sole right conveyed 
 by the city to a third person is the right to collect and appro- 
 priate the market revenues, the market remaining subject to 
 all the regulations, control, and authority of the city, appli- 
 cable to every other market, the market remains the premises 
 of the city, and not of the lessee, and the latter does not incur 
 the obligations of a tenant to keep the premises safe for those 
 lawfully entering thereon.^ It is held that the owner of a 
 building who lets it in flats, hires a janitor to take care of it, 
 
 1 See cases cited supra, and also Ditchett v. South Division E. R. , 67 
 N. T. 425; Ryan v. Wilson, 87 N. T. 471, 63 How. Pr. 172; Norton v. 
 Wiswall, 26 Barb. 618 ; Heimstreet v. Howland, 5 Denio, 68 ; Felton v. 
 Daall, 22 Vt. 170; Owings v. Jones, 9 Md. 108; Fisher v. Thirkell, 21 
 Mich. 1 ; Harris v. Cohen, 50 Mich. 324 ; Mahoney v. Atlantic & S. L. 
 R., 63 Maine, 68. It has been held that the landlord was liable for injuries 
 caused by the existence of a nuisance on the premises although it only be- 
 came active by the tenant's ordinary use of the premises ; as where the 
 plaintiff was injured by reason of his horse taking fright at the sails of a 
 ■windmill on the premises, worked by the tenant. House v. Metcalf, 27 
 Conn. 631. In this case the landlord's liability was made to rest upon 
 the ground of the tenant's agency. A landlord was held liable to a third 
 party for injuries caused by the fall of an awning by reason of its being 
 insecurely attached to the premises, he having consented to its erection hy 
 his lessee and furnished a part of the material therefor. Riley v. Simp- 
 son, Catts V. Simpson, 83 Cal. 217. Bnt a tenant who. receives a benefit, 
 as part of the leased premises, of an awning illegally maintained over the 
 sidewalk, maintains a nuisance, and is liable to one injured thereby. 
 McParthand v. Thorns, 24 N. T. S. Rep. 110 (1889). 
 
 2 Leslie v. Pound, 4 Taunt. 649 ; Cannavan v. Conkluig, 1 Daly, 509. 
 
 ' Weymouth v. New Orleans, 40 La. Ann. 344. 
 
142 PERSONAL INJURIES. [CHAP. n. 
 
 and retains some control of it, is responsible for ah injury 
 occasioned by the janitor's leaving a coal-hole in the sidewalk 
 open -and unguarded, to take in coal, although the coal was 
 for the use of tenants.^ So the owner of a building who 
 retains control of the entrance to the basement, and erects 
 guards around it, and employs a watchman to look after 
 the safety of the whole building, is responsible for an injury 
 caused by a faulty projection of such basement entrance.^ 
 And so is the owner of a place of public entertainment which 
 he has temporarily leased to another, for injuries occurring 
 by reason of the unsafe condition of the approaches thereto.^ 
 On the other hand, the owner of a building is not liable for 
 injuries caused by the fall of snow from the roof of a build- 
 ing into the highway, when the whole building is leased to 
 a tenant, and it does not appear that the latter might not 
 have cleared the roof had he used due care, or that he could 
 not, by proper precaution, have prevented the accident ; there 
 being no covenant by either party to repair, and the landlord 
 reserving the right to enter to repair.* But the rule will be 
 otherwise where the roof of the building remains in the con- 
 trol of the owner, who leases apartments therein to different 
 occupants.^ In order to charge the landlord, it must appear 
 that he was in active, and, it would seem, in exclusive control 
 of that part of the premises, or the approaches thereto, where 
 the accident occurs. Thus the landlord was held liable for 
 injuries resulting to third persons from defects in a way 
 leading to several tenements leased to several tenants, and 
 used in common by the tenants and the public, there being 
 no agreement on the part of the tenants to keep the way in 
 repair.8 And a like rule of liability has been applied in the 
 case of accidents occurring by reason of defective or open 
 
 1 Jennings v. Van Schaick, 108 N. T. 530. 
 
 " Wasson V. Pettit, 49 Hun, 168 ; Brunker v. Cummins, 133 Ind. 443. 
 
 « Oxford V. Leathe, 165 Mass. 254. 
 
 * Clifford V. Atlantic Cotton Mills, 146 Mass. 47, and see Leonard v. 
 Storer, 115 Mass. 86 ; Lee v. McLaughlin, 86 Maine, 410. 
 
 s Shipley v. Fifty Associates, 101 Mass. 251 ; Shepard v. Creamer, 160 
 Mass. 496. 
 
 • Readman v. Conway, 126 Mass. 374; O'Sullivan i>. Norwood, 14 
 Daly, 286. 
 
§ 90.] PARTIES DEPENDANT. 143 
 
 traps in passages or entries used in common by different 
 tenants of a building, as against the owner of the building.^ 
 But where a walk, rendered dangerous by the lack of a rail- 
 ing, was used by one tenant and the persons whom he invited 
 to the building, and there was no evidence that the landlord 
 retained any control over the walk, the landlord was held not 
 to be liable to a third person, going to see the tenant on busi- 
 ness, for an injury received in falling from the walk.^ Where 
 an elevator on the leased premises was run by the tenant's 
 servant, but was to be kept in repair by the landlord, it was 
 held that the tenant was not in such possession or control of 
 the elevator as to nfake him responsible for an accident occur- 
 ring to a third person from a defect in the construction of the 
 elevator.^ If the tenant assumes the duty of repairing a de- 
 fect, he is liable for a resulting injury, although the landlord 
 has paid for the repairs.* 
 
 1 EUiott V. Pray, 10 AUen, 378. See Chapman v. RothweU, El. Bl. & 
 El. 168. 
 
 » Mellen v. Morrill, 126 Mass. 545. See Mistier v. O'Grady, 132 Mass. 
 139. 
 
 * Sinton v. Butler, 40 Ohio St. 158, and see Fisher v. Jansen, 30 HI. 
 App. 91, 128 Dl. 549; Stuart v. Harvard College, 12 Allen, 58. 
 
 * Stacger r. Van Sicklen, 7 if. T., Sup. N. E. Rep. 805 (1890). 
 
144 PERSONAL INJURIES. [CHAP, HI. 
 
 CHAPTER m. 
 
 OF NEGLIGENCK GENERALLY AND THE DOCTRINE OF 
 PEOXIMATB CAUSE. 
 
 SECTION I. 
 
 OP NEGLIGENCE, GENERALLY, 
 
 § 91. Defined. — Negligence, whether on the part of the 
 plaintiff or of the defendant, may be defined as the want of 
 ordinary or reasonable care in respect of that which it is the 
 duty of the party to do or to leave undone. The expression 
 "wilful" negligence which is sometimes used involves, obvi- 
 ously, a contradiction in terms, for negligence and wilfulness 
 are incompatible, since the former arises from inattention, 
 and the latter from design.^ By the words " ordinary " or 
 " reasonable " care, is intended such care as men of ordinary 
 sense, prudence, or capacity would take, under like circum- 
 stances, in the conduct or management of their own affairs.^ 
 The degree of care to be required in different cases varies 
 
 1 Parker v. Penn. Co., 134 Ind. 673 ; Fisher v. Louisville, &c. E. R., 
 146 Md. 558; Kentucky Central R. R. v. Gastinean, 83 Ky. 119; Louis- 
 ville & K. R. R. V. Long, 94 Ky. 410. See Avery v. Meek, 96 Ky. 192; 
 Ciuciunati R. R. v. Palmer, 98 Ky. 382 ; Highland Ave., &c. R. R. v. 
 Swope, 115 Ala. 287. But see Louisville & N. R. R. v. Markee, 103 
 Ala. 160, as cited post, § 92; Kansas City, &c. R. R. v. Lackey, 114 Ala. 
 152. It is held that a provision of statute prohibiting the making of 
 " flying switches " in a municipality and providing that " mere contribu- 
 tory negligence " shall not be a defence to an action for injuries result- 
 ing therefrom, was not intended to recognize degrees of contributory 
 negligence ; and that wantonly reckless conduct contributing to the injury 
 is not within the statute. PuUiam v. 111. Cent. R. R., 75 Miss. 627. 
 
 ^ Shaw V. Boston & Worcester R. R., 8 Gray, 45, 79. 
 
§ 91.] negligence: proximate cause. 145 
 
 according to the situation of the parties and the exigencies 
 which require vigilance and attention ; * and is higher in 
 circumstances which place life and limb in jeopardy than in 
 other cases.^ So the measure of care to which a particular 
 person is bound depends upon his capacity to understand the 
 circumstances in which he is placed and the dangers justly to 
 be apprehended therefrom. It is to be observed, in cases in 
 which negligence is the gist of an action at law, that the 
 words " due," " ordinary," or " reasonable " care have exactly 
 the same meaning, whether applied to the conduct of the 
 plaintiff or of the defendant, for the law does not prescribe a 
 different rule or measure of care in the respective parties.' 
 Generally, if the neglect of the defendant be the proximate 
 cause of the injury complained of, it is not material whether 
 such neglect be by omission or commission.* But it is to be 
 observed that, in some cases, the omission of the defendant 
 to do a certain thing may be negligent, and in another set of 
 circumstances excusable. Thus the owner of land may, as to 
 persons entering upon his premises by his procurement, be 
 bound to fence or guard an excavation in the way leading to 
 the premises, while as to one entering as a trespasser or in- 
 truder, he would not be so responsible.^ So it is held to be 
 negligence to explode a blast in a thickly settled part of a city, 
 although the jjerson so doing use the highest degree of skill 
 and care.® It has been held that the mere violation of a duty 
 imposed by law is negligence, per se^ but the weight of 
 reason and authority limits the rule to cases in which such 
 
 1 Fletchers. Boston & Maine R. R., 1 Allen, 9; Brown v. Kendall, 6 
 Cnsh. 292. 
 
 » Cayzer v. Taylor, 10 Gray, 274. 
 
 ^ Shaw V. Boston & Worcester R. R., 8 Gray, 45, 79. 
 
 * Davis V. Chicago & Northwestern R. R., 58 Wis. 646; Harriman «. 
 Pittsburg, C. & St. L. R. R., 45 Ohio St. 11; Larmore v. Crown Point 
 Iron Co., 101 N. Y. 391. 
 
 6 See §§ 71 et seq. 
 
 ' Munro v. Pacific Coast Dredging & Reclamation Co., 84 Cal. 515 ; 
 Colton V. Onderdonk, 69 Cal. 155; Hay v. Cohoes Co., 2 N. Y. 159. 
 
 ' Texas & Pac. R. R. v. Brown, 11 Tex. Civ. App, 503; Gulf, Col. & 
 Santa Fe R. R. v. Pendery 14 Tex. Civ. App. 60 ; Wolff Mfg. Co. v. 
 Wilson, 152 111. 9; Clements v. Louisiana Gas & £1. Co., 44 La. Ann. 
 692. 
 
 10 
 
146 PERSONAL INJUEIES. [CHAP. HI. 
 
 violation is the proximate cause of the injury complained of.^ 
 But the fact of violation is always admissible, as evidence, 
 upon the issue of negligence, as to acts which the statute 
 prohibits.^ 
 
 § 92. No Degrees of. — Although, for the sake of conven- 
 ience, it is often said, as to suits brought to recover for per- 
 sonal injuries, that, in order to a recovery, there must appear 
 negligence on the part of the defendant and due care on the 
 part of the plaintiff, yet it might with equal propriety be said 
 that the plaintiff is bound to show that he was not negligent, 
 and that the defendant did not exercise due care. It follows 
 that there cannot be, legally speaking, degrees of negligence 
 on the part of the defendant any more than there can be de- 
 grees of due care on the part of the plaintiff ; for, in respect 
 of the same transaction, the presence of the one element of 
 conduct implies the absence of the other.^ Any negligence 
 which is legally suflficient to charge the defendant with lia- 
 bility is, in a sense, gross negligence ; and the question whether 
 the defendant is to be charged with it, as being a question of 
 fact, must depend upon the circumstances of the case ; as must 
 also the question whether the plaintiff was in the exercise of 
 due care, or in other words not guilty of contributory negli- 
 gence. It is said : " The words ' gross,' ' reckless,' and ' wan- 
 ton ' do not imply the same thing as ' wilful ' or ' intentional,' 
 
 1 See §§ 98, 100, 112, post, and cases cited; Borck v. Mich. Bolt & Kut 
 Works, 111 Mich. 129. 
 
 '^ See § 112, post. 
 
 ' So, in Illinois, where the doctrine of " Comparative Negligence " 
 formerly obtained, see § 102, post, and the courts recognized a legal distinc- 
 tion in degrees of negligence, it was said that " gross negligence " and " the 
 want of slight care " are convertible terms. Chicago & Northwestern K. 
 R. V. Chapman, 30 111. App. 504. So it was held that an instruction de- 
 fining the absence of gross negligence as " conduct not wanting in reasonable 
 care and prudence, in view of all the circumstances and surroundings of 
 the injury," was correct. Barnum o. Terpenning, 75 Mich. 557. In 
 McAdoo V. Richmond & D. R. R., 105 N. C. 140, it was said that, in an 
 allegation of "gross " negligence, the term "gross " was to be taken as a 
 mere expletive. But in Jung v. Stevens Point, 74 Wis. 547, it was held 
 to be the duty of the court to instruct the jury, particularly, as to what 
 degree of negligence on the part of the plaintifE would defeat his action. 
 
§§ 91-92.] negligence: proximate cause. 147 
 
 but mean less than wilfulness and nothing more than negli- 
 gence." ^ Thus the " degrees " of negligence often spoken of 
 do not admit of such precision and exactness of definition as 
 to be of practical use without a statement of the circumstances 
 which they are intended to designate. And it is obvious that 
 that conduct which may be negligent in one condition of 
 circumstances may be prudent in another .^ 
 
 » Cleveland, C, C. & St. L. R R. v. Phillips, 24 U. S. App. 489. See, 
 also, Albion Lumber Co. v. DeNobra, 44 U. S. App. 347 ; Gould v. 
 Schermer, 101 Iowa, 582 ; Omaha Street Railway v. Craig, 39 Iv eb. 601 ; 
 Culbertson v. Holiday, 50 Neb. 229; Central R. R. u. Brantley, 93 Ga. 
 259. But in Alabama degrees of negligence as " simple," " reckless," or 
 "wilfnl" are recognized in a late case, which overrules many former 
 decisions. Louisville & N. R R. v. Marker, 103 Ala. 160. See, also, 
 Sabine & E. Texas R. R. t'. Hanks, 2 Tex. Civ. App. 306. 
 
 * As to the so called " degrees " of negligence, Curtis, J., says: " It may 
 be doubted if these terms can be usefully applied in practice. Their 
 meaning is not fixed, or capable of being so. Oue degree thus described 
 not only may be confounded with another, but it is quite impracticable 
 exactly to distinguish them. Their signification necessarily varies accord- 
 ing to circumstances ; to whose influence the courts have been forced to 
 yield, until there are so many real exceptions, that the rules themselves 
 can scarcely be said to have a general operation. If the law furnishes no 
 definition of the terms ' gross negligence ' or ' ordinary negligence ' which 
 can be applied to practice, but leaves it to the jury to determine in each 
 case what the duty was and what omissions amount to a breach of it, it 
 would seem that imperfect and confessedly unsuccessful attempts to de- 
 fine that duty had better be abandoned. " The New World v. King, 16 How. 
 474, approved in Milwaukee & St. Paul Railway Co. v. Arms, 91 TJ. S. 
 409. In the latter case it was contended that where " gross " negligence 
 appeared the case might justify the assessment of exemplary damages. 
 See Wilson v. Brett, 11 M. & W. 113 ; Grill v. General Iron Screw Col- 
 lier Co., L. R. 1 C. P. 600; Hinton r. Dibbin, 2 Q. B. (n. s.) 661. It 
 is said, by Shaw, C. J. : " The terms ' slight negligence,' ' want of ordi- 
 nary care,' and ' gross negligence ' are useful in their way, but they are 
 not precise and exact enough, without a statement of the facts designated 
 by them, to enable a court to judge of the rights of parties thereby af- 
 fected." Chandler v. Worcester Mutual Life Insurance Co., 3 Cush. 328, 
 331. See Galbraith v. West End Street Railway, 165 Mass. 572. The 
 court in New Hampshire says : " The distinction between neglig^enoe and 
 gross negligence, carelessness and gross carelessness, is to a great extent 
 merely verbal. But indictments and declarations founded on special 
 statutes should follow the forms of such statutes, and should use the 
 same words and in the same sense as the statute uses them." State «. 
 
148 PERSONAL INJURIES. [CHAP. IH, 
 
 § 93. Law and Fact. — The better opinion appears to be that 
 when upon a consideration of the facts the question wliether 
 the party was negligent is fairly doubtful, the case presents 
 a mixed question of law and fact ; it being always the duty 
 of the court to instruct the jury as to what will constitute 
 negligence, and the duty of the jury, under such instruction, 
 to ascertain whether the party was in fact negligent, since 
 where the duty imposed is merely to take such precautions as 
 a reasonable man of ordinary prudence would take under like 
 circumstances, both the measure of duty and the extent of its 
 performance are questions of fact.' Some cases hold that 
 when the facts are in dispute the question is one of fact, other- 
 wise one of law ; '■^ but these technical differences of definition 
 are perhaps not important, since the authorities, with few ex- 
 ceptions, are agreed that when the conclusion to be drawn 
 from the facts is fairly debatable, or rests in doubt, negligence 
 is, finally, a conclusion of fact to be drawn by the jury from 
 the testimony in the case, under proper instructions from the 
 court.^ It is to be observed that like rules upon this subject 
 
 Manchester & Lawrence Railroad, 52 N. H. 528. See Gill v. Middleton, 
 105 Mass. 474. It is said in New York : " What will amount to gross neg- 
 ligence depends upon the special circumstances of each case." Per Selden, 
 J., in Nolton v. Western E. R., 15 N. Y. 444, 449, and see Wilds v. Hudson 
 Kiver R. R., 24 N. Y. 430; Real v. South Devon Railway, 3 H. & C. 337, 341. 
 
 1 Trow V. Vermont Central R. R.,24 Vt. 487; Briggs v. Taylor, 28 Vt. 
 180; Wright v. Maiden & Melrose R. R., 4 Allen, 289 ; Norris v. Litchfield, 
 35 N. H. 271; Nolan v. New York, N. H. & H. R. R., 53 Conn. 461; 
 Northern Pacific R.,R. d. Austin, 24 U. S. App. 336; Benson v. Central 
 Pac. R. R., 98 Cal. 45; Davis v. California St. Cable R. R., 105 Cal. 131 ; 
 but see Fiske v. Forsyth Dyeing, &c. Co., 57 Conn. 118; Bunnell v. Berlin 
 Iron Bridge Co.,iB6 Conn. 24. Whether a given state of facts constitutes 
 negligence is generally a question of law ; but whether a particular act of 
 negligence contrihuted to the injury is a question of fact. See Catawassa 
 R. R. V. Armstrong, 52 Penn. St. 282. 
 
 2 State V. Manchester & Lawrence R. R., 52 N. H. 528 ; Warren v. 
 Bait. & Ohio E. R., 168 U. S. 339. 
 
 3 Vinton v. Schwab, 32 Vt. 612; Williams v. Clinton, 28 Conn. 264 ; 
 State V. Towa Central R.R ., 43 Iowa, 109 ; Farley v. Chicago, R. I. & Pac. 
 E. R., 5G Iowa, 337; Bums v. Chicago, Minneapolis & St. P. R. R., 69 
 Iowa, 450; Thompsons;. New York Central & H. R. R.R.,110N. Y. 636; 
 Blaiser v. New York, L. E. & Western R. R., 110 N. Y. 638 ; Roll v. 
 Northern Central R. R., 15 Hun, 496; Hnnter v. Wanamaker, 2 Cent 
 
§§ 92-94.J negugence: proximate cause. 149 
 
 are to be applied whether the alleged negligence in issue be 
 that of the plaintiff or of the defendant.^ 
 
 § 94. Functions of Court and Jury. — When there is no evi- 
 dence of the defendant's negligence to sustain the plaintiff's 
 action the court is bound so to instruct the jury and to direct 
 a verdict for the defendant, or nonsuit the plaintiff.^ But if 
 there be any evidence of negligence, amounting to more than 
 a mere scintilla, the question is to be submitted to the jury.* 
 A scintilla of evidence is not sufficient to support an action,* 
 and the rule is said to be that the issue should be submitted 
 (1) when the facts which if true would be evidence of negli- 
 gence are controverted ; ^ (2) where such facts are not dis- 
 puted, but there might be a fair difference of opinion as to 
 
 Kep. (Pa. 1886) 270 ; Central Branch Union Pac. R. R. v. Nathan, 22 
 Kan. 41 ; Central Branch Union Pac. R. R. v. Henigh, 23 Kan. 347 ; 
 Baltimore & Potomac R. R. v. Jones, 95 U. S. 439. It is the duty of 
 the court to instruct whether or not a given state of facts would, upon 
 the pleadings, constitute negligence. Ravenscraft v. Missouri Pac. R. R., 
 27 Mo. App. 617. In Deuham ». Trinity County Lumber Co., 73 Tex. 
 78, it was held that it was error to instruct the jury that certain facts, if 
 proved, constituted contributory negligence; the question being for the 
 jury upon the facts of the case. See, also, Brown v. Sullivan, 71 Tex. 
 470, and cases cite^ post, § 111. 
 
 1 Bridge p. Grand Junction Railway, 3 M. & W. 246 ; Davies v. Mann, 
 10 M. & W. 546; Sweat v. Boston & Albany R. R., 156 Mass. 284. 
 
 ^ Weightman v. Washington, 66 U. S. 89 ; St. Louis & San Francisco 
 R. R. V. Schumacher, 152 U. S. 77 ; Northern Pacific R. R. v. Everett, 
 152 U. S. 107; Southern Pacific R. R. v. Pool, 160 U. S. 438; Texas & 
 Pacific R. R. V. Gentry, 163 U. S. 353; Bamhart «. Chic, M. & St. P. 
 R. R., 97 Iowa, 654; 111. Cent. R. R. ». Larson, 152 111. 326; Wade v. 
 Columbia El. Co., 51 S. C. 296; Chic, B. & Q. R. R. v. Landauer, 36 
 Neb. 642; Am. Water Works Co. v. Dougherty, 37 Neb. 373. 
 
 * Carver v. Detroit & S. Plank Road Co., 61 Mich. 584; Pennsylvania 
 R. R. V. Horst, 110 Penn. St. 226; Wight Fire-Proofing Co. v. Roczkai, 
 30 111. App. 266, 130 111. 139; Lake Shore & M. S. R. R. v. Ouska, 151 
 Dl. 232; ElweU v. Hacker, 86 Maine, 400; Haggerty v. Granite Co., 89 
 Maine, 118; Doyle v. West End St. Railway, 161 Mass. 533; Salladay v. 
 Dodgeville, 85 Wis. 318. 
 
 * But see Central B. R. o. Rouse, 77 Ga. 393; Patton v. Southern R. R., 
 42 U S. App. 567. 
 
 * Hoag V. Lake Shore & Mich. Southern R. R., 85 Penn. St. 293 ; King 
 V. Thompson, 87 Penn. St. 365; Walton v. Ackerman, 49 N. J. L. 234. 
 
150 PEBSONAL INJURIES. [CHAP. HL 
 
 whether the inference of negligence ought to be drawn ; (3) 
 when the facts are in dispute and the inferences to be drawn 
 from them are doubtful. When no fair inference of negli- 
 gence can be drawn from evidence favorable to the plaintiff, 
 assuming that such eridence is true, the issue should be with- 
 drawn from the jury.^ So upon the question of contributory 
 negligence, when the whole testimony, with all the fair in- 
 ferences to be drawn therefrom, show that the plaintiff was 
 negligent, the question is for the court.^ But although the 
 facts be undisputed, yet if faii"-minded persons may arrive at 
 different conclusions thereon,^ or if the evidence is conflict- 
 ing, the matter is for the jury.* It is held in tlie Federal 
 courts that, when the facts furnish conclusive proof of negli- 
 gence, this may be regarded as properly to be found among 
 the conclusions of law as a legal inference from the facts.^ 
 Like rules apply when the negligence of both parties is in 
 issue. ® 
 
 § 95. Infant may be guilty of. — The authorities, generally, 
 hold that negligence may be imputed to an infant plaintiff, 
 when his act which produced the injury was one which the 
 general judgment of common men would immediately con- 
 demn as negligent in a person of his age and capacity ; and 
 when there were no circumstances attending the act to indi- 
 cate that the plaintiff used ordinary care ; ^ as where a boy of 
 
 1 Hathaway v. East Tennessee, V. & G. R. R., 29 Fed. Rep. 489; Cad- 
 well V. Arnbeim, 152 N. Y. 182. In Texas, the law declines to decide the 
 qaestion of negligence generally ; bnt,it is now held that as a given state of 
 facts, it is for the court to say whether negligence can be inferred ; and for 
 the jury to say whether it ought to be inferred. San Antonio & Aransas 
 Pass R. R. V. Long, 4 Tex. Civ. App. 497. 
 
 2 Mynning v. Detroit, L. & N. R. R., 67 Mich. 677. 
 
 * Nugent V. Boston, Concord & Montreal R. R., 80 Maine, 62. 
 
 * Chautauqua Lake Ice Co. v. McLucky, 11 AtL Rep. 616 (Penn. 1887); 
 Dougherty v. Missouri R. R., 97 Mo. 647. 
 
 B Steamship Belgenland v. Jansen, 114 U. S. 355 (in Admiralty). 
 
 * See Kaminitsky v. Northeastern R. R., 25 S. C. 53 ; Clarke v. Rhode 
 Island Electric Lighting Co., 17 Atl. Rep. 59 (R. L 1889). 
 
 ' Patterson v. Hemenway, 148 Mass. 94; Messenger v. Dennie, 137 
 Mass. 197, 141 Mafis. 335 ; Ridenhour v. Kansas City Cable Railway, 102 
 Mo. 270. 
 
§§ 94-95.] NEGLIGENCE : PROXIMATE CAT7SE. 151 
 
 fifteen was injured while running a machine with which he 
 was perfectly familiar, and it appeared from the testimony of 
 the plaintiff himself that the danger of getting caught in the 
 machine was obvious, and that he well understood what the 
 danger was and how it was to be avoided.^ So where a child 
 seven years and one-half old persisted in running across a 
 street diagonally and not at a crossing, in front of a moving 
 street-car in spite of the warnings of the driver, and was 
 killed by collision with the car, it was held as matter of law 
 that she was negligent.^ The care to be expected from chil- 
 dren is always proportioned to their age and intelligence,^ 
 and although in some cases the negligence of the child is so 
 apparent as to justify the court in finding it as matter of 
 
 * Probert v. Phipps, 149 Mass. 258, and see Twist v. Winona & St. 
 P. R. R., 39 Minn. 164; Prauenthal v. La Clede Gas Light Co., 67 Mo. 
 App. 1. Negligence has been imputed to a child of seven and one-half 
 years, Chicago & Alton R. R. c. Murray, 62 HI. 326; and to au infant 
 of seven, Chicago City Ry. Co. o. Wilcox, 138 HI. 370; Stone v. Dry Dock, 
 E. B. & B. R. R., 46 Hun, 184, 115 N. Y. 104. So to a chUd of eight, 
 St. Louis & S. F. R, [. Christian, 8 Tex. Civ. App. 246; to one of nine, 
 Mullen V. Springfield St. Railway, 164 Mass. 450, and to one of ten years. 
 Sheets ». Connolly Railway, 54 N. J. L. 518. 
 
 » Flanagan o. People's, &c. Railway, 163 Penn. St. 376. See Fleishman 
 V. Neversink Mt R. R., 174 Penn. St. 510 ; Funk v. Electric Traction Co., 
 175 Penn. St. 559. But where a child started to cross the railway track 
 in the middle of the block and the motorman's attention was directed 
 elsewhere, and he paid no attention to calls from persons on the sidewalk, 
 it was held that the questions of negligence and contributory negligence 
 were for the jury. Evers v. Phil. Traction Co., 176 Penn. St. 376. 
 
 » Pennsylvania R. R. p. Kelly, 31 Penn. St. 372; Philadelphia Passen- 
 ger R. R. r. Hassard, 75 Penn. St. 367; Greenway r. Conroy, 160 Penn. 
 St. 185; Pekin .. McMahon, 154 111. 141; Springfield Cons. R. R ». 
 Welsch, 156 HI. 511; Foley v. California Horse Shoe Co., 115 Cal. 184; 
 O'Mara v. Hudson River R. R, 38 X. T. 445 ; Thompson v. Buffalo R. R., 
 145 X. Y. 196; Kansas Pacific R. R. r. Whipple, 39 Kan. 531; Western 
 & Atlantic R R. p. Young, 81 Ga. 397 ; Erwin i . St Louis, Iron Mt. & 
 Southern R. R., 96 Mo. 290; Rummele v. Allegheny Heating Co., 16 Atl. 
 Rep. 78 (Penn. 1888) ; Strawbridge r. Bradford, 24 W. N. C. 536 ; Wright 
 o. Detroit, G. H. & M. R. R., 77 Mich. 221; Cleveland RoUing Mill v. 
 Corrigan, 20 N. E. Rep. 466 (Ohio 1890) ; Bridger i-. Asheville & S. R R, 
 25 S. C. 24. But an infant of eighteen years old was held to the degree 
 of care to which a prudent adult would be held in like circumstances. 
 Shelley v. Austin, 74 Tex. 608. 
 
152 PERSONAL INJURIES. [CHAP. Ill, 
 
 law, yet, generally, the question is to be submitted to the jury, 
 although the circumstances, in the case of an adult, would 
 call for a ruling that as matter of law the plaintiff could not 
 maintain his action.^ And it has been held that it cannot be 
 inferred as matter of law from any conduct of an infant of 
 tender years that such infant has been guilty of contributory 
 negligence.^ 
 
 § 96. Presumption that Plaintiff will take Care of himself. — 
 A person exercising an employment or discharging a duty, 
 
 1 Stone V. Dry Dock, E. B. & B. R. K., 115 N. Y. 104 ; Dealey v. Mid- 
 ler, 149 Mass. 432 ; Wiswell v. Doyle, 160 Mass. 42 ; Johnson v. Reading 
 Railway, 160 Penn. St. 647. In the case of a child of tender years, where 
 it might fairly be infeiTed 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, although the child may haye omitted some precautions, 
 which omission, in the case of an adult, would have been conclusive of 
 negligence. Barry v. New York Central & H. R. R. R., 92 N. Y. 289, 
 and see McGovern v. New York Central & H. R. R. R., 67 N. Y. 417. 
 
 2 See Mackey v. Vicksburg, 64 Miss. 777; Westbrook ». Mobile & 
 Ohio R. R., 66 Miss. 560 ; Vicksbnrg v. McLain, 67 Miss. 4. In South 
 Carolina, it was held that where the pleadings put the question of the in- 
 fant plaintiff's Capacity in issue it was not the duty of the court to charge, 
 as matter of law, that the plaintiff was $ui juris. Bridger v. Asheville & 
 S. R. R., 25 S. C. 24. It was held in Kansas that although an infant 
 killed while playing upon the turn-table of a railroad company had intel- 
 ligence enough to know that it was wrong to trespass upon the turn-table, 
 yet, if he had no knowledge that the playing on the turn-table was dan. 
 gerous, it cannot be said that he was guilty of contributory negligence. 
 Union Pacific R. R. v. Dunden, 37 Kan. 1. In Norfolk & Petersburg 
 R. R. V. Ormsby, 27 Grat. 455, it was held, as matter of law, that a child 
 two years and ten months old could not be guilty of contributory negli- 
 gence ; and see Walters v. Chicago, R. I. & Pacific R. R., 41 Iowa, 71. But 
 it is apprehended that that is an unsafe rule of law which holds that an 
 infant of tender years cannot be guilty of negligence, and that the con- 
 trary rule, as explained and guarded in the cases cited supra, is correct. 
 In St. Paul V. Kuby, 8 Minn. 154, it was held that there was no presump- 
 tion of law that a child four and one-half years old did not exercise due 
 care in circumstances of danger. See also Brown v. European & N. A. 
 Railway, 58 Maine, 384; Crissey v. Hestonville, &c. Railway, 75 Penn. 
 St. 83. In Grant v. Fitchburg, 160 Mass. 16, it was held, as matter of 
 law, that a child twenty months old was incapable of exercising due care 
 for himself in a public street. See Schneidau t>. N. O. & C. R. R., 48 La. 
 Ann. 866; Culbertson v. City R. R., 48 La. Ann. 1376, as cited ^o«t, § 97. 
 
§§ 95-96.] NEGUGEKCE : PROXIMATE CAUSE. 153 
 
 the carrying out of which may be attended with danger to 
 others, has a right to presume that those with whom he 
 comes in contact will exercise the proper regard for their own 
 safety which prudent men are accustomed to exercise in like 
 circumstances, and, further, that they are possessed of the 
 oi'diuary faculties and capacities, mental and physical, which 
 enable ordinary men to foresee danger and to avoid it. Thus 
 the servants of a railroad, in charge of its train, have the 
 right to assume, in the absence of contrary information, that 
 a person about to cross the ti-ack, in front of the train, is in 
 possession of all his senses and will use them for his own 
 safety .1 And so as to a trespasser on the track ; ^ or a 
 person there by right, as an employee.^ So one driving upon 
 the highway who knows nothing and sees nothing to indicate 
 that a person crossing the highway cannot take as much care 
 of himself as persons in that situation ordinarily do, has a 
 right to drive on, with the expectation that the person so 
 crossing will behave as other men do, — that is, that he will 
 see and hear the approaching team and look out for his own 
 safety.* Generally, it seems that when an injury, not result- 
 ing from implied malice or wilful intent, would not have 
 resulted but from the incapacity of the person suffering it, the 
 person inflicting such injury will not be responsible therefor, 
 unless be knew, or ought to have known, of the incapacity. 
 And this is the rule whether the incapacity be mental or 
 physical. Thus where the conductor of a railway train put 
 an insane person off the train, where he was travelling with- 
 out a ticket, the conductor's action being in obedience to the 
 rule of the road, and the conductor having no means of know- 
 ing that the person was insane, and in consequence of the 
 conductor's action, the lunatic was run over and killed, it was 
 held that the conductor was not chargeable with negligence.^ 
 
 1 International & G. N. R. R. r. Garcia, 75 Tex. 593. 
 
 ' Candee r. Kansas City, &c. Railway, 130 Mo. 142 ; AIcLaughlia r. 
 X. O. &c. R. R.. 48 La Ann. 23. 
 
 » NeUing r. Chic, St. P. & K. C. R. R., 98 Iowa, 554. 
 
 * Neff 1-. Wellesley, 148 JIass. 487, 492. 
 
 « AVilletts r. Buffalo & Rochester R. R., 14 Barb. 585. So where an 
 idiot, crossing a railroad track, was seen by the engineer in charge of an 
 approaching train, in time to have stopped the train, which he did not do ; - 
 
164 PERSONAL INJURIES, [CHAP. HI. 
 
 SECTION II. 
 
 THE DOCTRINE OF PROXIMATE CAUSE. 
 
 § 97. Defined. — In actions for personal injuries, as the 
 right to recover rests upon the alleged wrongful or negligent 
 act of the defendant, the maxim, causa proxima, non remota, 
 spectatur, is applied. The proximate cause is to be defined, 
 generally, as the cause which led to or might naturally be 
 expected to produce the result. So, when both parties are 
 present and acting as voluntary agents, and both are in de- 
 fault, he will be responsible for the result whose negligence 
 was the directly contributing factor to produce it ; ^ and, an 
 efficient adequate cause being discovered, that is to be deemed 
 the true cause, unless some new cause, not incidental to, but 
 independent of the first, shall be found to intervene between 
 the first cause and the final result.^ But, " when two or more 
 causes concur to produce an effect, and it cannot be deter- 
 mined which contributed most largely, or whether without 
 the concurrence of both it would have happened at all, and 
 a particular party is responsible only for the consequences of 
 one of these causes, a recovery cannot be had, because it can- 
 not be judicially determined that the damage would have 
 been done without concurrence, so that it cannot be attrib- 
 uted to that cause for which he is answerable." ^ It is to be 
 
 it was held that this did not create a presumption of negligence on the 
 part of the engineer, he not knowing that the person so crossing was an 
 idiot. Daily v. Richmond & D. R. R., 106 N. C. 301. It is obvious 
 that if the defendant knew or ought to have known of the plaintiff's 
 incapacity, he is bound to exercise a degree of care proportioned to the 
 circumstances. See NefE v. Wellesley, 148 Mass. 487; Kennedy v. Den- 
 ver, St. P. & P. R. R., 10 Col. 493. 
 
 1 State V. Manchester & Lawrence R. R., 52 N. H. 528. Thus the 
 mere fact of the violation of a statute, ordinance, rule, or regulation by 
 the person charged with negligence is not material as bearing upon the 
 issue, unless it appear that such violation was at least a contributing 
 cause of the injury. See §§ 140, 141, 153, post. 
 
 " Per Thomas, J., in Marble v. Worcester, 4 Gray, 395, 412. 
 
 8 Marble v. "Worcester, 4 Gray, 395. In this case, Shaw, C. J., said: 
 
§§ 96-97.] NEGUGENCE : PROXIMATE CAUSE. 155 
 
 observed that an injury that is the result of many fortuitous 
 circumstances, no one of which can fairly be said to be the 
 proximate cause of it, is to be taken as an inevitable accident, 
 and, so, not actionable.^ And an injury that could not rea- 
 sonably have been anticipated by an ordinarily prudent man, 
 as the natural result of his negligence, is not actionable.^ 
 Thus the fact that a child may be incapable of contributory 
 negligence does not of necessity make the defendant liable 
 upon the mere proof of an act causing injury ; as where the 
 proximate cause of the injury was a sudden and unexpected 
 act of the child as running against or under a passing street- 
 car ; the persons in charge of the car not being negligent.' 
 The mere violation of law, whether by the plaintiff or defend- 
 ant, will not be taken to prove the negligence of either party, 
 
 " The whole doctrine of causation, considered in itself metaphysicsJly, is 
 of profound difficulty, even if it may not be said of mystery. It was a 
 maxim ... of the school-men, Cattxa causantix, catisa est causati. And 
 this makes the chain of causation, by successive links, endless. . Per- 
 haps no event can occur, which may be considered as insulated and inde- 
 pendent ; every event is itself the effect of some cause or combination of 
 causes, and in its turn becomes the cause of many ensuing consequences 
 more or less immediate or remote. The law, however, looks to a practi- 
 cal rule . . . ; and on account of the difficulty in unravelling a combina- 
 tion of causes, and of tracing each result . . . to its true, real, and efficient 
 cause, the law has adopted the rule ... of regarding the proximate and 
 not the remote cause of the occurrence which is the subject of inquiry." 
 And it is to be observed that the law regards only the chain of tangible 
 physical facts or events. In law, if A. strikes and injures B. the imme- 
 diate and only cause of the injury to B. is the blow. The metaphysician 
 however would trace the cause of the blow to the influence of revenge, 
 or other passion, working in A.'s mind, and, again, the existence of such 
 passion to its own creating cause, in some previous injury inflicted on A. 
 by B. ; and so on ad infinitum. It is said by Lord Bacon : " It were 
 infinite for the law to consider the causes of causes, and their impulsion 
 of each other; therefore it contenteth itself with the immediate cause, 
 and judgeth of acts by that, without looking to any further degree." 
 Maxims of Law, 1. 
 
 1 Chicago, M. & St. P. K. R. ». Elliott, 55. Fed. Kep. 949 ; 5 C. C. A. 
 
 347. 
 
 a Motey v. Pickle Marble Co., 36 U. S. App. 682 ; McCain v. Chic, 
 B. & Q. R. R-, 40 U. S. App. 181. 
 
 « Schneidau v. N. O. & C. R. R., 48 La Ann. 866 ; Culbertson v. Cen- 
 tral City R. R., 48 La Ann. 1376. 
 
156 PERSONAL INJUEIKS. [CHAP. HI, 
 
 per se, unless such violation appears to be the proximate 
 cause of the injury complained of.^ 
 
 § 98. Connection of Cause and Effect. — In applying the doc- 
 trine of proximate cause it is not necessary that the connec- 
 tion between the cause and the effect shall be proved beyond 
 the possibility of doubt, or that such connection be cognizable 
 by the senses. It is sufficient if the evidence of the connection 
 produce that moral conviction upon which men are accustomed 
 to act in the important concerns of life, and it is only neces- 
 sary that the jury be reasonably satisfied that the alleged 
 cause was in fact the proximate cause of the effect complained 
 of. Thus where a landlord, knowing that a tenement owned 
 by him was dangerously infected with small-pox, leased it to 
 the plaintiff, and the plaintiff's family soon after sickened 
 with the disease, it was held that the jury might properly find 
 that the act of letting was the proximate cause of the sickness 
 of tlie plaintiff's family.^ It may be said generally, if a chain 
 of causes lead up to and each is necessary to produce a cer- 
 tain result, that the last event in the chain is to be deemed 
 in law the cause of such result. Thus while a patient cannot 
 recover for injuries consequent upon unskilful or negligent 
 treatment by his physician, if his own negligence directly con- 
 tributed to them to an extent which cannot be distinguished or 
 separated, yet, if the negligent acts of the physician and patient 
 can be separated, the plaintiff may recover for such injury as 
 proceeds solely from the want of ordinary skill or care on the 
 part of the physician ; for a physician may be called on to pre- 
 scribe in a case which originated in the carelessness of the pa- 
 tient, and although such carelessness would remotely contrib- 
 ute to the injury sued for, it would not relieve the physician 
 from liability for his distinct negligence and the consequences 
 of it. So the patient may, while under treatment, injure him- 
 self by his own carelessness, and yet recover of the physician 
 
 1 See §§ 91, ante, 112, 141, post, and cases cited. 
 
 2 Minor v. Sharon, 112 Mass. 477. For a case in which the coinci- 
 dent acts of negligence of two corporations were held to be, taken to- 
 gether, the efficient proximate cause of an accident, so that each was 
 liable, see Washington & Georgetown R. R. v. Hickey, 166 U. S. 521. 
 
§§ 97-99.] NEGLIGENCE : PROXIMATE CAUSE. 157 
 
 for injuries resulting from negligence or unskilful treatment 
 afterwards ; for iu such case the patient's fault does not di- 
 rectly contribute to the injury .^ But, unless some negligent 
 act of the plaintiff intervene, tlie defendant will be responsible 
 for the natural and probable consequences of his own wrong- 
 ful act, although such act be more or less remote, in the chain 
 of causes, from the harmful result.^ Thus where the defend- 
 ant sold a gun to the plaintiffs father for the use of himself 
 and his son, and falsely represented it to be good and safe, he 
 knowing the contrary, and the plaintiff using it was injured 
 by its bursting, the vendor of the gun was held liable for the 
 injury. Lord Denman in afiirming judgment adopted the ex- 
 pression in the case, of Baron Parke, " that as there is fraud, 
 and damage, the result of that fraud not from an act remote 
 and consequential, but one contemplated by the defendant at 
 the time as one of its results, tlie party guilty of the fraud is 
 responsible to the party injured." ^ 
 
 § 99. Rule illiistrated in Cases of Runa-way Accidents. — The 
 application of the doctrine of proximate cause has often 
 been discussed in cases of accident resulting from the fright- 
 ening, and consequent running away, of horses on the highway 
 or elsewhere. The general rule would seem to be that the 
 negligence which causes the fright and consequent running of 
 the horse is the proximate cause of the resulting injury, and 
 that this is so although some intervening cause contribute to 
 the injury. Thus if a horse be frightened by a railway car un- 
 lawfully and negligently left upon a street crossing, and runs 
 and injures his driver, the proximate cause of the injury is 
 the leaving of the horse.* So if a horse be negligently left 
 untied in the highway, and runs, and injures a traveller, the 
 proximate cause of the injury is the leaving of the horse, 
 
 1 Hibbard r. Thompson, 109 Mass. 286. See § 133, post. 
 
 » The E. D. Helton, 31 U. S. App. 317 ; Killien v. Long Island R. R., 
 35 TJ. S. App. 215. 
 
 » Levy V. Lang^dge, 4 M. & W. 337, and see Langridge v. Levy, 2 31. 
 & W. 519. 
 
 * Peterson v. Chicago & W. M. R. R., 64 Jlich. 621 : Lambeck o. 
 Grand Rapids R. R., 106 Mich. 512 ; St Louis, &c. R. R. v. Aven, 61 
 Ark. 141. 
 
158 PERSONAL INJURIES. [CHAP. III. 
 
 although the efforts of persons to catch him increase the 
 speed with which he runs,^ or although the immediate cause 
 of his running be something for which the person having him 
 in charge is not responsible, as the falling of hot water upon 
 him from the locomotive of an elevated railway .^ So where 
 the negligent act of the defendant frightened the plaintiff's 
 horse, and he ran, and the rein broke, and the plaintiff was 
 thrown out and injured, it was held that it was for the jury to 
 say whether the frightening of the horse or the breaking of 
 the rein was the proximate cause of the injury.^ But where 
 the owner or custodian of the horses is not chargeable with 
 negligence, as where horses attached to a wagon were stand- 
 ing in a public street, such horses being ordinarily quiet and 
 steady, and, becoming frightened, backed over a precipice 
 which the defendant city had negligently left unguarded, it 
 was held that the frightened condition of the horses was not 
 the proximate cause of the accident and that the plaintiff 
 might recover.* 
 
 1 Phillips 0. De Wald, 79 Ga. 732. 
 
 2 RompiUon v. Abbott, 1 N. Y. Sup. N. E. Eep. 662 (1888). 
 
 8 Pntman v. New York Central & H. R. R. R., 54 N. Y. S. C. 439. 
 
 * Olsen V. Chippewa Falls, 71 Wis. 558. Where the plaintiff's horse 
 became frightened on a dark night and ran against a post causing injury, 
 but it did not appear that he was out of control, or that any one bad 
 frightened him, it was held that the question whether the running of the 
 horse was the proximate cause of the injury was for the jury. Yeaw v. 
 WiUiams, 15 R. I. 20. It was held in Illinois, apparently in opposition 
 to the principle as stated above, where horses with a wagon attached ran 
 away and came into collision with another wagon, thereby injuring an 
 occupant of the second wagon, that the collision was the proximate cause 
 of the injury, although the runaway horses might have been checked had 
 the driver of them used due care in the management of them. Belk v. 
 People, 125 111. 184. Where a horse attached to a carriage became un- 
 manageable and began to run about one hundred and sixty feet from a 
 point on a highway which was alleged to be defective for want of a rail- 
 ing, it was held that the alleged defect was not the proximate cause of the 
 injury. Higgins v. Boston, 148 Mass. 484. See Ovington ti. Lowell & Sub- 
 urban Railway, 163 Mass. 440. Where a horse belonging to a street-car 
 company ran away, and striking a post on the sidewalk was thrown down, 
 thereby frightening a woman who was standing in a doorway so as to in- 
 duce in her a nervous disease, it was held that the running of the horse 
 was not the proximate cause of the injury to her. Lehman i;. Brooklyn 
 City R. R., 47 Hun, 439. 
 
§§ 99-100.] negligence: proximate cause. 159 
 
 § 100. Nearest Negligent Act referred to. — It may be said, 
 generally, that the tendency of the later cases is to refer the 
 proximate cause of tlie injury, in any case, to the wrongful or 
 negligent act in the chain of causation, unless this act shall 
 clearly appear to be too remote from the injury to justify such 
 a reference.^ Thus if snow falls from a roof, and striking 
 the plaintifiPs horse causes him to run away, whereby the 
 plaintiff is injured, the fall of the snow is taken to be the 
 proximate cause of the injury.^ So it was held that if a part 
 of a highway where an accident happened was so defective as 
 to render the town liable in case an accident had happened by 
 reason of the defect, in the absence of an obstruction caused 
 by ice at the same point, and the accident happened by reason 
 of the defect, and would not have happened but for it ; then 
 the town would not be liable even though the ice was one of 
 
 1 See Northern Central R. R. v. State, 29 Md. 420 ; Baltimore & Ohio 
 R. R. v. State, 33 Md. 542; North Bait. Pass. Railway i: Arnreieh, 78 
 Md. 589; Bait. Traction Co. v. Appel, SO Md. 603; Thatcher v. Cent. 
 Traction Co., 166 Penn. St. 632 ; Kincaid v. Kansas City, C. & S. R. R., 62 
 Mo. App. 365; Ragland v. St. Louis, I. M. & So. R. R., 49 La Ann. 1162; 
 Cleveland, C. C, & I. R. R. ti. Wynant, 134 Ind. 681 ; Georgia Southern 
 R. R. V. George, 92 Ga. 766; Green v. Erie Railway, 11 Hun, 833; Murphy. 
 V. Orr, 96 N. T. 14 ; Moebus v. Herrman, 108 N. Y. 349. This principle 
 rests upon the proposition, often laid down, that, although the plaintiff 
 was negligent, yet if the defendant might, by the exercise of reasonable 
 care, have avoided the results of the plaintiff's precedent negligence, and 
 fails to do so, he may be liable. But it is obvious that if a negligent act 
 of the plaintiff, without which the accident would not have happened, 
 intervene between the negligent act of the defendant and the result with 
 which it is sought to chai-ge him, such act of the plaintiff is the proxi- 
 mate cause of the injury. Thus, where one left his house voluntarily 
 and unnecessarily to help extinguish a fire at some distance which had 
 been set by the defendant's negligence, and in so helping was fatally 
 burned, it was held that the proximate cause of his injury was his own 
 act in leaving his house. Pike v. Grand Trunk Railway, 39 Fed. Rep. 
 255. And where an infant, permitted by his parents to play in the 
 street, ran behind a street-car, clinging to the rear brake, and the driver, 
 there being no conductor, struck the child twice with his whip to make 
 him let go, and the child thereupon ran under the wheels of a car moving 
 in an opposite direction and was fatally injured, it was held that the act 
 of the driver was not the proximate cause of the injury. Mack v. 
 Lombard & S. St. P. R. R., 8 Pa. Ct Rep. 30.5. 
 > Smethuist v. Barton Square Church, 148 Mass. 261. 
 
160 PERSONAL INJURIES. [CHAP. III. 
 
 the contributing causes of the accident.^ Where the munic- 
 ipality, for a lawful purpose, made an excavation in one of 
 its streets, which it guarded by proper barriers, which barriers 
 a third party removed, it was held that such removal was the 
 proximate cause of the injury to one who fell into the exca- 
 vation.^ Where the plaintiff, driving on the highway, met a 
 person also driving who did not keep to the right as required 
 by law, and in consequence was forced upon the side of the 
 road and so came into collision with a post standing outside 
 the carriage way, it was held that the failure of the third 
 party to keep to the right was the proximate cause of the 
 collision and resulting injury, and that the defendant munic- 
 ipality was not liable.^ The same tendency appears in many 
 cases of railway accident. Thus where a railway train had 
 become uncoupled by reason of a defective appliance, and ja 
 brakeman, while engaged in repairing the mishap in the part 
 of the train that was stationary, was killed by the negligence 
 of the engineer in backing down upon him the moving por- 
 tion of the train, it was held that the proximate cause of the 
 killing was the negligence of the engineer.* Where a person 
 injured at a railroad crossing would have passed safely had 
 not the train which injured him been running at an unlawful 
 rate of speed, it was held that the unlawful rate of speed 
 was the proximate cause of the accident.^ So where a man 
 with his infant son was crossing a bridge, and the son fell 
 through an opening in the railing, and the father plunged 
 into the water to rescue him and was drowned, it was held 
 
 » Hampson v. Taylor, 15 R. I. 83. 
 2 Parker v. Cohoes, 74 N. Y. 610. 
 
 * Mahogany v. Ward, 16 R. I. 479. Where a horse was frightened by 
 a moving street-car, and ran, and the driver, being brought in collision 
 with a dangerous obstruction in the street, was injured, the obstruction 
 was considered to be the proximate cause of the injury, Campbell v. 
 Stillwater, 32 Minn. 808 ; but where the horse took fright at a hole in 
 a culvert and ran, and threw the traveller into the ditch at the side of the 
 way, it was held that the existence of the hole was the remote cause 
 only of the subsequent injury. Spanlding v. Winslow, 74 Maine, 533; 
 O'Brien v. McGlinchy, 68 Maine, 557. 
 
 * Course v. New York, Lake Erie & W. R. R., 2 N. Y. Sup. N. E. Rep. 
 512, Dykman, J., dissenting (1888). 
 
 6 Winstanley v. Chicago, Milwaukee & St. P. R. R., 72 Wis. 375. 
 
§ 100.] NEGLIGENCE : PROXIMATE CAUSE. 161 
 
 that although the immediate cause of the peril to which the 
 father naturally and instinctively exposed himself was the 
 peril of the child, the culpable negligence of the State in 
 leaving the bridge in a dangerous condition was the prox- 
 imate cause of the father's death.^ A railroad left an unex- 
 ploded signal-torpedo upon its track where children, with the 
 knowledge and without the disapproval of the railroad, were 
 accustomed to play. It was picked up by a boy nine years 
 old, who carried it into a crowd of boys near by, and, not 
 knowing what it was, attempted to open it, when it exploded 
 and injured the plaintiff, a child of ten years. It was held 
 that the act of the boy who picked up the torpedo was 
 only a contributory condition which the servants of the com- 
 pany ought to have anticipated as a probable consequence of 
 their own negligence, which negligence was the proximate 
 cause of the injury complained of.^ Where the plaintiff's 
 
 1 Gibney v. State, 137 N. Y. 1. 
 
 » Harriman v. Pittsbui^, C. & St. L. R. R., 45 Ohio St. 11. Where 
 iron beams were negligently left piled near a hole in a floor, where they 
 were likely to be toppled over so as to fall through the hole and injure 
 some one below, and a careless person did so topple them over, and they 
 fell through the hole and injured the plaintiff, it was held to be a question 
 of fact whether the careless piling of the beams was the proximate cause 
 of the injury. McCauley v. Norcross, 155 Mass. 584. Where by the 
 negligence of a railroad company, defendant, an animal was thrown from 
 its track, and, bounding upon the ground, struck and injured the plain- 
 tiff, it was held that the proximate cause of the injury was the negligent 
 act of the defendant. Albama G. S. R. R. v. Chapman, 80 Ala. 615. 
 But where the employee of a railroad company in order to get out of the 
 way of a train which had been started without the proper signal, stepped 
 between the track and a sand-bank two feet distant therefrom, and a 
 quantity of sand fell from the bank, striking him and knocking him 
 against the wheels of the moving train, whereby he was injured, it was 
 held that the immediate cause of the injury was the falling of the bank 
 and that the plaintiff could not recover. Handelnn v. Burlington, C., R. 
 & N. Railway, 72 Iowa, 709. If the neglect of the defendant was the 
 moving cause of the accident, he will be liable, although at the moment 
 of the accident it was beyond his power to prevent it. Alexander ». 
 Humber, 86 Ky. 565. Where a railway company left a locomotive un- 
 attended, and with fire in it, on a side track, and a wrong-doer moved 
 the engine on to the main track, whereby a collision ensued, it was held 
 that the leaving the engine was not the proximate cause of the collision. 
 Mars V. Delaware & Hudson Canal Co., 54 Hun, 625. Where, by a col- 
 li 
 
1S2 PERSONAL INJUEIES. [CHAP. Ill, 
 
 horse took fright at the defendant's engine and ran over a 
 third person, who recovered damages for his injuries, against 
 the plaintiff, it was held that the latter might recover the 
 same of the defendant on showing that he could not have 
 prevented the accident and that the defendant could.' If the 
 defendant's duty to select suitable servants, is not performed 
 and injury results, the proximate cause is to be considered 
 the negligence in selection.^ 
 
 I 101. Rule applied to Cases of Plaintiff's Negligence. — Since 
 the law regards only that negligence which is the proximate 
 cause of the injury complained of, it follows that, although the 
 plaintiff were negligent, yet, unless by the exercise of ordinary 
 care he might have avoided the consequences of the defend- 
 ant's negligence, he may be entitled to recover.^ As the rule 
 is sometimes stated, if the plaintiff's negligence had nothing 
 to do with the accident, the fact of such negligence is not a 
 defence to his action.* So, a person may recover damages for 
 
 lision between two railway trains, a person was so injured that he sub- 
 sequently became insane and committed suicide, it was held that the 
 proximate cause of his death was his own act, and Miller, J., said : " His 
 insanity as a cause of his final destruction was as little the natural or 
 probable result of the negligence of the railway officials as his suicide, and 
 each of these are casual and unexpected causes intervening between the act 
 which injured him and his death." Schefier v, Washington City, &e. 
 K. K., 105 U. S. 249. And it seems generally that where the injury, not 
 resulting from implied malice or wilful intent, would not have resulted 
 but from the incapacity of the party suffering it, that the party inflicting 
 such injury will not be responsible in damages therefor, unless he had 
 notice of the incapacity, or was charged with some peculiar duty in respect 
 of the insane person which he tortiously or carelessly neglects. See Bus- 
 well, Law of Insanity, p. 358, note, and cases cited. 
 
 1 Nashua Iron & Steel Co. v. Nashua & Worcester R. E., 62 N. H. 159. 
 
 2 Norfolk & Western R. R. v. Hoover, 79 Md. 253. 
 
 8 Batterfield v. Forrester, 11 East, 60 ; Bridge r. Grand Junction Rail- 
 way Co., 3 M. & W. 244 ; Davies v. Mann, 10 M. & W. 546. 
 
 * See Johnson e. Hudson River R. R. Co., 20 N. T. 65; Savage v. 
 Commercial Exchange Ins. Co., 36 N. T. 655; Hawks v. Winans, 74 N. 
 Y. 609 ; Haley v. Earle, 30 N. T. 208 ; Teall v. Barden, 40 Barb. 137; 
 Short V. Knapp, 2 Daly, 150, 2 Abb. Pr. n. 8. 241 ; Caldwell v. Murphy, 
 1 Duer, 233, 1 Kern. 416 ; Colgrove v. H. & N. R. R., 6 Duer, 383; Trow 
 V. Vermont Cent. R. R., 24 Vt. 487 ; Beers v. Housatonie R. R., 19 Conn. 
 566 ; Dowell v. General Steam Nav. Co., 5 El. & Bl. 195 ; Greenland v. 
 
§§ 100-101.] NEGLIGENCE : PROXIMATE CAUSE. 163 
 
 an injury caused by the negligence of the defendant, although 
 the negligence of the plaintiff first exposed him to the risk of 
 injury, if such injury was proximately caused by the defend- 
 ant's negligent act, committed after he had become aware of 
 the plaintiff's danger ; and the rule is the same if the defend- 
 ant's negligence be by omission only.^ Although the principle 
 has sometimes been differently stated, the sound reason of the 
 rule is that if the faulty act of the plaintiff simply presents 
 the condition under which the injury was received, and was 
 not immediately contributory thereto, the plaintiff will not be 
 precluded from a recovery ,2 if the defendant, being aware of 
 the plaintiff's danger, neglected to use ordinary care to avoid 
 injuring him.* Thus where one was negligently driving on 
 the track of a street railway, and the servant of the railway 
 company negligently started a car and a collision ensued as a 
 result of such starting by which the plaintiff was injured, it 
 was held that he might recover.* And so where the employee 
 of a railroad negligently exposed himself to injury in the first 
 place, but the defendant's other servants might, by the exer- 
 cise of ordinary care, have avoided injuring him, the railroad 
 was held liable.® Where the defendant's servant broke off a 
 car stake, thus letting lumber fall upon the plaintiff and injur- 
 ing him, it was held that the prior negligence of the plaintiff 
 
 Chaplin, 5 Ezch. 248; Bridg^e v. Grand Junction Railway Co., 3 M. & W. 
 244; Werner v. Citizens' Railway, 81 Mo. 368; Illinois Central R. R. ». 
 Godfrey, 71 111. 500. 
 
 1 See cases cited §§ 107, 108, 108 a, post 
 
 ' Menger e. Laar, 55 N. J. L. 205. 
 
 » Railroad v. Cassen, 49 Ohio St. 230 ; and see Union Pacific R. R. v. 
 Mertes, 35 Neb. 204 ; Omaha Street R. R. v. Martin, 48 Neb. 66 ; Brother- 
 ton V. Manhattan Beach Co., 48 Neb. 563; Pickett v. Wilmington & W. 
 K. R., 117 N. C. 616 ; Johnson v. Chesapeake & Ohio R. R., 91 Va. 171; 
 Washington R. R. ». Lacey, 94 Va. 460; McGuire v. Vicksburg, S. & 
 Pac. R. R., 46 La. Ann. 1543; Noble ». St. Joseph, &c. Railway, 98 
 Mich. 249; Alabama Great So. R. R. v. Richie, 99 Ala. 346; Lake Shore 
 & M S. R. R. t). Bodemer, 139 111. 596 ; Dlanhi v. St. Louis, I. M. &c. R. R., 
 139 Mo. 291; Western Md. R. R. v. Kehoe, 83 Md. 434; Texas & Pac. 
 R. R. V. Robinson, 4 Tex. Civ. App. 121; Int. & Great Northern R. R. ». 
 Tabor, 12 Tex. Civ. App. 283. 
 
 * McDivitt V. Des Moines St. Railway, 99 Iowa, 141. 
 
 6 Kansas & Ark. Valley R. R. v. Fitzhugh, 61 Ark. 341. 
 
164 PERSONAL INJ0RIES. - [CHAP. III. 
 
 in carelessly loading the lumber was not the proximate cause 
 of his injury ; but a prior and independent transaction, and, 
 as such, no part of the direct and efficient cause of the injury.^ 
 This rule has been applied in cases of injuries to infant chil- 
 dren, in those jurisdictions where the negligence of the parent 
 is not permitted to be imputed to the child.^ 
 
 § 102. Doctrine of " Comparative Negligence" disapproved. — 
 Even although the plaintiff, at the time he was injured, was 
 engaged in the doing of some unlawful act, as driving at a pro- 
 hibited rate of speed, or on the wrong side of the road, or on 
 a turnpike without paying toll,^ or was trespassing on the 
 defendant's property,* he may recover if his own negligence 
 or wrong-doing was not the proximate cause of his injury. 
 On the other hand, if both parties are negligent it will not be 
 ground for the plaintiff to recover that the negligence of the 
 defendant was greater than his own ; but, in order to a re- 
 covery, it must appear further that the plaintiff's negligence 
 in no manner contributed to cause the injury of which the 
 plaintiff complains.^ In other words, the plaintiff may recover 
 if, on the one hand, he proves that his own negligence was 
 not the proximate cause, and on the other that the defendant's 
 negligence was the proximate cause of the injury. And as in 
 every case in which negligence is alleged on both sides, the 
 question is not merely which party was the most negligent, 
 but which party, by his negligence, caused the injury com- 
 plained of, it follows that that is not a sound rule which has 
 sometimes been stated without qualification, that the plaintiff 
 is entitled to recover if the defendant's negligence is greater 
 than his own, and that the defendant is not liable if the plain- 
 tiff's negligence was equal to, or exceeded his own.* 
 
 ^ Pollard V. Maine Central R. E., 87 Maine, 51. 
 
 2 Chicago W. Div. Railway v. Ryan, 131 111. 474. See Philadelphia & 
 Reading R. R. e. Spearen, 47 Penn. St. 300. 
 
 " Norris V. Litchfield, 35 N. H. 271. 
 
 * Loomis V. Terry, 17 Wend. 496 ; Greenland v. Chaplin, 5 Ex. 243 ; 
 Bird V. Holbrook, 4 Bingham, 628. 
 
 5 Marble v. Ross, 124 Mass. 44, and see Richmond & Danville R. R. v. 
 Howard, 79 Ga. 44. 
 
 ' The doctiioe of "comparative negligence" formerly obtained in 
 
§§ 101-1Q3.] NEGLIGENCE : PROXIMATE CAUSE. 165 
 
 § 103. Contributing Negligence of Third Person not to defeat 
 Remedy. — It is a general rule, that a person injured by the 
 
 Illinois. See Kerr v. Foigiie, 54 HI 482; Chicago, B. & Q. R. E. v. Van 
 Patten, 64 111. 510; Chicago & Alton R. R. o. Fietsam, 123 111. 518; 
 Fisher v. Cook, 125 111. 288; Willard v. Swanson, 126 111. 381 ; Christian 
 I. Erwin, 125 111. 619; Parmelee v. Farro, 22 El. App. 467. It will be 
 observed that the doctrine rested, as stated in Illinois, upon the assump- 
 tion that the law recognizes the existence of " degrees " of negligence, see 
 § 92, ante, it having been held that the jury should be instructed to com- 
 pai-e the negligence of the parties, and to ascertain whether that of the 
 one is " slight " and tlie other " gross." Chicago, Milwaukee & St. Paul 
 R. R. ». Mason, 27 111., App. 450. See, also, Tomle v. Hampton, 28 111. 
 App. 142, 129 HI. 379; Galesburg p. Benedict, 22 111. App. Ill; Chicago, 
 Burlington & Quincy R. R. v. Warner, 22 111. App. 462, 123 111. 38; 
 Illinois Central R. R. c. Xeer, 26 lU. App. 356. The later cases have 
 greatly qualified the doctrine (see Calumet I. & S. Co., i;. Martin, 115 111. 
 358 ; Atchison, Top. & Santa Fe R. R. r. Feehan, 149 111. 202, and cases 
 cited) ; and it is now finally overruled; the rule in Illinois being, as else- 
 where, that in order to recover the plaintiff must have exercised ordinary 
 care, and the defendant must have been guilty of such negligence as 
 caused the injury complained of. Lanark v. Dougherty, 153 111. 163 
 (1894). The doctrine of comparative negligence is accepted in Georgia, 
 see Campbell v. Atlantic R. R., 53 Ga. 488 ; Atlantic & AV. P. R. R. c. 
 \yyly, 65 Ga. 120; Central R. R. & Banking Co. v. Gleason, 69 Ga. 200; 
 Atlantic & R. A. L. R. R. v. Ayres, 53 Ga. 12 ; Savannah, &c. R. R. v. 
 Smith, 93 Ga. 742 ; and, by the Code of that State, § 3034, it is provided 
 that in actions against railroad companies for negligent injuries to per- 
 sons or property, if the plaintLS and defendant are both in fault, the 
 complainant may recover, but that his damages shall be diminished in 
 proportion to his fault. It is held that this provision has no application 
 when the plaintLS has been guilty of gross negligence. So in Kansas it 
 has been held that where the negligence of one party is great and that of 
 the other but slight, notwithstanding the slight negligence the party may 
 recover. WichiU & Western R. R. t-. Davis, 37 Kan. 743. See Orleans 
 V. Perry, 24 Neb. 831, 836. In Alabama it is held that the '• gross negli- 
 gence '' of the defendant is not sufficient to overcome the contributory 
 negligence of the plaintifF, unless it be such negligence as is wanton, 
 reckless, or intentional. Carrington v. Louisville & Xashville R. R., 88 
 Ala. 472 : but see Gothard c. A. G. S. R. R., 67 Ala. 114. In Tennessee 
 the doctrine seems to be applied in favor of the defendant in mitigation 
 of damages. Railroad v. AValker, 11 Heisk. 383 ; Louisville, Xashville & 
 G. S. R. R. V. Fleming, 14 Lea, 128. In the following cases the doctrine 
 has distinctly been disapproved: Catawissa R. R. p. Armstrong, 49 Penn. 
 St 186, 193 ; Stiles r. Geesy, 71 Penn. St. 439; Wilds r. Hudson River 
 E. R., 24 X. Y. 430 432; Marble u. Ross, 124 Mass. 44; O'Keefe v. 
 
166 PERSONAL INJURIES. [CHAP. III. 
 
 fault of another, without which fault the injury could not have 
 occurred, is not to be deprived of his remedy because the fault 
 of a stranger, not in privity with him, also contributed to the 
 injury. For the original negligence still remains as a culpable 
 and direct cause of the injury, and the intervening events and 
 agencies which may contribute to it are not to be regarded.^ 
 This is the generally received doctrine, unless a contributory 
 cause of the injury has been the negligence or fault of some 
 person towards whom the plaintiff sustains the relation of 
 superior or master ; in which case the negligence is imputed 
 to him, though he may not have personally participated in, or 
 had knowledge of it.^ So a defendantj a gas company, laid a 
 defective pipe, which leaked into the plaintiff's cellar. The 
 servant of a gas-fitter, employed to examine the premises by 
 the plaintiff, went into the cellar with a lighted lamp, and an 
 explosion followed which caused injury to the plaintiff. It 
 was held that the gas company was liable therefor, and Kelly, 
 C. B., said: " If a man sustains an injury from the separate 
 negligence of two persons employed on his premises to do two 
 separate things, as in this case the plaintiff has sustained an 
 injury from the negligence of the gas-fitter's servant on the 
 one hand, and of the gas company on the other, he can, in 
 
 Chicago, R. I. & Pac. R. R., 32 Iowa, 467; Banning o. Chic, R. I. & 
 Pac. R. R., 89 Iowa, 74; Potter v. Chicago & N. W. R. R., 21 Wis. 372; 
 Baltimore & Ohio R. R. v. State, 33 Md. 542; Pennsylvania R. R. v. 
 Righter, 42 N. J. L. 180; Kansas Pacific R. R. v. Peavey, 29 Kan. 170; 
 Houston & Texas Central R. R. v. Garbett, 49 Tex. 573; Brooks v. Han- 
 nibal & St. Jo. R. R., 35 Mo. App. 571 ; Culbertson v. Holliday, 50 Neb. 
 229. 
 
 ' Lane v. Atlantic Works, 111 Mass. 136. But where the immediate 
 cause of the injury is the wrongful and wilful act of a third party, the 
 defendant is not liable; as where one was injured by falling into an ex- 
 cavation negligently left in a public way, and it appeared that the fall 
 was solely caused by the act of one who wilfully seized the plaintiff and 
 threw him into the pit. Alexander v. New Castle, 115 Ind. 51. It makes 
 no difEerence that the person wrongfully interfering was an infant not 
 within the age of discretion. Otten v. Cohen, 1 N. Y. Sup. N. E. Rep. 
 430 (1888). It is obvious that, in such cases, it cannot be said that with- 
 out the intervening wrongful act of the third party the injury would 
 have occarred ; and so the negligence of the municipality in making or 
 permitting the excavation cannot be taken to be the proximate cause of 
 the injury. 
 
 * Little V. Hackett, 116 U. S. 366. 
 
§§ 102-104.] NEGLIGENCE : PROXIMATE CAUSE. 167 
 
 my opinion, maintain an action against both or either of the 
 wrong-doei's." ^ So, if a passenger on a railway train of one 
 company is injured by a collision with another train of a differ- 
 ent company, he may recover against the latter company, if it 
 was negligent; although the negligence of the persons in 
 charge of the train in which he was travelling also contributed 
 to cause the accident.^ One of two colliding vessels, if a col- 
 lision was caused by her culpable negligence, is liable in ad- 
 miralty, in rem, for resulting injuries to passengers of the 
 other vessel, notwithstanding the fault of such other vessel 
 may have contributed to the accident.^ Upon an application 
 of the general rule, it is held that the contributory negligence 
 of a fellow-servant will not defeat an action for an injury 
 against the common master.^ 
 
 § 104. Former Qualification of the Rule in England. — The 
 rule stated was qualified in a line of Enghsh cases in which 
 
 ^ Burrows r. March Gas Co., L. R. 5 Ex. 67 ; W^ashington & George- 
 town B. K. V. Hickey, 166 U. S. 521. See also, to the general rule, 
 Sheridan v. Brooklyn, &c. R. R., 36 N. Y. 39 ; Barrett ». Third Avenue 
 R. R., 45 N. T. 628; Webster v. Hudson River R. R., 38 N. T. 260; 
 Spooner p. Brooklyn R. R., 54 N. Y. 230; Lannon o. Albany Gas Light 
 Co., 46 Barb. 264; Robinson v. N. Y. Cential 8e Hudson River R. R., 65 
 Barb. 146 ; Arctic Fire Ins. Co.o. Austin, 3 Hun, 195; Eaton v. Boston & 
 Lowell R. R., 11 Allen, 500; Burrell Township u. Uncapher, 117 Penn. St. 
 353 ; Citizens' Passenger R. R. v. Ketcham, 122 Penn. St. 288; Chartiers 
 Turnpike o. Phillips, 122 Penn. St. 661 ; De Camp v. Sioux City, 74 Iowa, 
 392; McCandless v. Chicago & N. W. R. R., 71 Wis. 41; Carterville v. 
 Cook, Rep. 129, 111. 152; Union Railway & Transit Co. v. Shacklet, 119 
 Bl. 232. See § 31, ante. 
 
 » Flaherty r. Northern Pacific R. R., 39 Minn. 328, and see Parshall 
 V. Minneapolis & St. L. R. R., 35 Fed. Rep. 649; Indiana, B. & W. R. R. 
 V. Barnhart, 114 Ind. 382; and §§ 46-50, ante. A earner of passengers 
 who is guilty of a negligent act, without the occurrence of which the acci- 
 dent could not have happened, will be answerable in damages to a pas- 
 senger who thereby suffers injury altiiough the negligence of a third 
 party, not in privity with nor under the control of the carrier, also contrib- 
 ute to the accident, and this although the accident would have been im- 
 possible but for such contributing negligence. Eaton v. Boston & Lowell 
 R. R., 11 Allen, 500; Peck v. Neil, 3 McLean, 22; Lockhart i-. Lichten- 
 thaler, 46 Penn. St. 151 ; Derwort o. Lormer, 21 Conn. 245 ; Dudley o. 
 Smith, 1 Camp. 167. 
 
 » The Williamette, 44 U. S. App. 26. 
 
 * See § 201, post, and cases cited. 
 
168 PERSONAL INJURIES. [CHAP. III. 
 
 it was held, broadly, that one who trusts himself to a public 
 conveyance so far identifies himself with the owner of the 
 conveyance and his servants that if any injury results to him 
 from their negligence, he must be considered a party to it. 
 " In other words, the passenger is so far identified with the 
 carriage in which he is travelling that want of care on the 
 part of the driver will be a defence," and " a passenger who 
 chooses his own conveyance must take the consequences of 
 any default of the driver he thinks fit to trust." ^ The same 
 rule was later applied in the case of an accident occurring to 
 a passenger on a railway train, and Pollock, B., said that the 
 plaintiff must be taken to be in the same position as the owner 
 or driver of the carriage in • the former case.^ These cases 
 would seem to consider the passenger and the employee of the 
 owner of the vehicle as standing to each other pro hac vice in 
 the relation of master and servant, but it is to be observed 
 that in other cases the English courts have decided that such 
 a relation does not exist as between the passenger and the 
 driver of a vehicle for hire ; ^ and the rule laid down in Thoro- 
 good V. Bryan and the cases following it is now distinctly 
 overruled in England.* 
 
 § 105. Qualification not admitted in the XTnited States. — In 
 the United States, the doctrine of Thorogood v. Bryan is 
 disapproved. Speaking of the assumed identification of the 
 passenger in the vehicle with the driver upon which the 
 
 1 Thorogood v. Bryan, 8 C. B. 114. 
 
 ^ Armstrong v. Lancashire & Yorkshire R. R., 10 Exch. 47. 
 
 * Quarman v. Burnett, 6 M. & W. 499 ; Jones v. Corporation of Liv- 
 erpool, 14 Q. B. D. 890. In the case of The Milan, Lush. 388, comment- 
 ing upon the case of Thorogood v. Bryan, Dr. Lushington said : " I do 
 not consider it necessary for me to dissect the judgment, but I decline to 
 be bound by it, because ... I know upon inquiry that it has been 
 doubted by high authority, [and] because it appears to me not reconcil- 
 able with other principles laid down at common law." If the doctrine of 
 Thorogood v. Bryan be extended, its logical application would seem so to 
 charge the passenger with the negligence of the driver or owner of the 
 vehicle in which he is riding, for hire, as to render him responsible for 
 injuries thereby resulting to third persons, on the principle which renders 
 the master generally responsible for the negligence of his servants. 
 
 * The Bernina, 12 P. D. 58 (1888). 
 
§§ 104-105.] NEGLIGENCE : PROXIMATE CAUSE. 169 
 
 English doctrine rests, the court in New Jersey say : " Such 
 identification could result only in one way, that is, by con- 
 sidering such driver the servant of the passenger. I can 
 see no ground upon which such a relationship is to be 
 founded. In a practical point of view, it certainly does not 
 exist. The passenger has no control over the driver or agent 
 in charge of the vehicle. ... To hold that the conductor of a 
 street-car or of a railroad train is the agent of the numerous 
 passengers who may chance to be in it would be a pure fic- 
 tion." ^ The true rule would seem to be that the carrier stands 
 to the passenger in the relation of a contractor to convey the 
 passenger to his destination, and as such assumes the risks of 
 the transportation, including possible liabilities arising from the 
 default or negligence of its servants. " The owner of a public 
 conveyance is a carrier and the driver or the person man- 
 aging it is his servant. Neither of them is the servant of the 
 passenger, and his asserted identity with them is contradicted 
 by the daily experience of the world." ^ So the negligence of 
 
 ^ Bennett v. New Jersey R. R. & Transportation Co., 36 N. J. L. 225, 
 and see New York, L. E. & W. R. R. v. Steinbrunner, 47 N. J. L. 161. 
 
 2 Per Field, J., in Little v. Hackett, 116 U. S. 366. The doctrine 
 has been disapproved, or a contrary rule held, in the following American 
 cases, in addition to those already cited: State v. Boston -& Maine R. R., 
 80 Maine, 430; Noyes v. Boscawen, 64 N. H. 361 ; Randolph v. O'Riordan, 
 155 Mass. 331; Chapman v. New Haven R. R., 19 N. Y. 341 ; Coleman 
 V. New York St N. H, R. R., 20 N. Y. 462; Webster v. Hudson River R. 
 R., 38 N. Y. 260; Crawford v. Delaware L. & W. R. R., 54 N. Y. S. C. 
 262; Dyer v. Erie R. R., 71 N. Y. 228; Richardson v. VanNess, 53 Hun, 
 267; Wabash, St. L. & Pac. R. R. v. Shacklet, 105 111. 364; Transfer Co. 
 V. Kelly, 36 Ohio St. 86; Davis v. Gnarnieri, 45 Ohio St. 470 ; Cuddy i'. 
 Horn, 46 Mich. 596; AVilliams v. Edmunds, 75 Mich. 92; Dan- 
 ville Turnpike Co. v. Stewart, 2 Met. (Ky.) 119 ; Cahill v. Cincinnati, &c. 
 R. R., 92 Ky. 345; LouisvUle, C. 8e L. R. R. v. Case, 9 Bush, 728 ; Bran- 
 nan V. Kokomo, G. & J. G. R. R., 115 Ind. 115; Indiana R. R. Co. v. 
 Spencer, 98 Ind. 186; Knightstown o. Musgrove, 116 Ind. 121; Michigan 
 City V. Boeckling, 122 Ind. 39; Louisville, N. A., & C. Railway v. Creek, 
 29 N. E. Rep. 481 (Ind. 1892) ; Miller v. Louisville,. N. A. & C. Rail- 
 way, 128 Ind. 97; Minster v. Citizens' Railway, 53 Mo. App. 276; 
 Philadelphia, Wilmington & B. R. R. v. Hogeland, 66 Md. 149; Nisbet v. 
 Garner, 75 Iowa, 314; Sheffield v. Central Union Telegraph Co., 36 Fed. 
 Rep. 164 ; Missouri Pacific R. R. v. Texas Pacific R. R., 41 Fed. Rep. 316 ; 
 Becke v. Missouri Pacific R. R., 102 Mo. 544; ElytonLand Co. v. Mingea, 
 
170 PERSONAL INJUBIB8, [CHAP. III. 
 
 those in charge of a vessel partly in fault for a collision is not 
 to be imputed to a passenger.^ 
 
 § 106. But Negligence of Person acting ■with or under control 
 of, the Plaintiff may defeat the Remedy. — When it appears that, 
 in fact, the driver and his passenger -were both in fault, the 
 rule that the negligence of the driver may not be imputed to 
 the passenger has no application. Since the passenger will 
 be precluded from recovery on the ground of contributory 
 negligence.^ Thus, where one was on the same seat with, 
 and 'had the same opportunity of discovering danger as, the 
 driver, while they were approaching the railway crossing at 
 which the accident happened, both the passenger and the 
 driver were held to be negligent, so that the passenger could 
 not recover. The court said : " The rule that the driver's 
 negligence may not be imputed to the plaintiff ... 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 inclosure, and is without opportunity 
 to discover the danger, and to inform the driver of it. It is 
 no less the duty of the passenger, where he has the opportunity 
 to do so, than of the driver, to learn of the danger and avoid 
 it, if practicable." * So a wife in a carriage with her husband 
 may be guilty of contributory negligence although he be driv- 
 ing.* But this duty will not attach when the passenger is 
 
 89 Ala. 521; Finnegan v. Foster Township, 163 Penn. St. 135; Atlantic 
 & Danville R. R. v. Ironmonger, 95 Va. 625 ; Ala. & Vicksburg R. R. v. 
 Davis, 69 Miss. 444; Perez v. N. O. City, &c. R. R., 47 La. Ann. 1391. 
 See also Brown v. McGregor, Hay (Scot.), 10, 1 Smith's L. C. 220, 4th 
 English Ed. In Slater v. Burlington, C. R. & N. Railway, 71 Iowa, 209, 
 the doctrine of Thorogood o. Bryan would seem to have been applied ; 
 but the report of the case does not make clear the precise ground upon 
 which it was decided. The case is distinguished, and the general mle 
 held, in Wymore v. Mahaska Co., 78 Iowa, 396; cited § 10G,pogt. 
 
 1 The City of Mackinac, 43 U. S. App. 190; The Bernina, 12 P. D. 58. 
 
 2 Hoag V. New York Cent. & H. R. R. R., Ill N. Y. 199, and see 
 Robinson v. ST. Y. C. & H. R. R. R., 66 N. Y. 11. 
 
 » Brickell v. New York Cent. & H. R. R. R., 120 N. Y. 290. 
 * Galveston, H. S. & A. R. R. v. Kutac, 76 Tex. 473; Miller v. Louis- 
 ville, N. A. & C. R. R., 128 Ind. 97; Dean v. Pennsylvania R. R. Co., 129 
 
§§ 105-107.] NEGLIGENCE : PROXIMATE CAUSE. 171 
 
 separated from the driver, as in a closed carriage,^ or in a 
 street railway car.^ The question is whether the passenger 
 had the opportunity and the right to see the danger and control 
 the driver.^ The negligence of the driver will not be imputed 
 to the passenger riding with him if the passenger himself uses 
 all prudent means to avoid the danger.* The gripman of a 
 cable railway, being under the direction and control of the 
 conductor, the negligence of the gripman, by reason of which 
 the conductor is injured, will be imputed to the latter.^ And, 
 by the application of the rule already stated, if a passenger is 
 injured by the concurrent negligence of the carrier and a third 
 person, the negligence of the carrier will not be imputed to 
 the passenger so as to prevent him from recovering from the 
 third person.^ 
 
 § 107. Negligence of Parent or Guardian imputed to Infant. — 
 The rule that the contributory negligence of a third party 
 will not defeat the plaintiff's remedy is subject to an apparent 
 exception in those jurisdictions where it is held that if the 
 negligence of the parent, guardian, or person having the 
 rightful custody and control of an infant, contributes to 
 the injury of the infant, such negligence is to be imputed to 
 the infant, who, therefore, cannot recover for the injury 
 to which such negligence contributed. This rule is said to be 
 founded upon the consideration that " an infant is not sui juris. 
 
 Penn. St. 514. But negligence, on the wife's part, will not be presumed 
 or inferred, and, in the absence of proof of it, her husband's negligence 
 is not to be imputed to her. Chicago, St. L. & P. R. K. v. Spilker, 134 
 Ind. 380 ; Boone County v. Mutchler, 137 Ind. 140 ; Lake Shore & M. S. 
 B. R. V. Mcintosh, 140 Ind. 261 ; Munger v. Sedalia, 66 Mo. App. 629. 
 
 1 East Tenn. R. R. ». Markens, 88 Ga. 60. See Metropol. St. Rail- 
 way V. Powell, 89 Ga. 601 ; Roach v. W. & A. R. R., 93 Ga. 785. 
 
 2 Railway Co. v. Harrell, 58 Ark. 454. 
 
 » Larkin u. Burl., C. R. & N. R. R. 85 Iowa, 492 ; Baltimore & Ohio 
 R. R. V. State, 79 Md. 335. 
 
 * Galveston, H. S. & A. R. R. v. Kutac, 76 Tex. 473. 
 
 ^ Minster v. Citizens' Railway, 53 Mo. App. 276. See Seaman v. 
 Koehler, 122 N. Y. 646. 
 
 » New York, P. & N. R. R. v. Cooper, 85 Va. 939 ; Wymore v. 
 Mahaska Co., 78 Iowa, 396, distinguishing Slater v. Burlington, C. R, 
 & N. R. R., 71 Iowa, 209, cited § 105, ante. 
 
172 PEESONAL INJURIES. [CHAP. III. 
 
 He belongs to another, to whom discretion in the care of his 
 person is exclusively confided. That person is keeper and 
 agent for this purpose ; and, in respect to tliird persons, his 
 act must be deemed that of the infant. His neglect is the 
 infant's neglect." ^ It is not necessary to consider whether in 
 such cases the negligence of the parent or guardian is fairly 
 to be considered as the proximate cause of the injury,^ or 
 ■whether this class of cases forms an exception to the general 
 application of the doctrine of proximate cause, since the rule 
 which imputes the negligence of the parent to the child is 
 firmly settled in several States.^ It is apprehended that the 
 
 1 Hartfield v. Koper, 21 Wend. 615. 
 
 " But, in Massachusetts, it is held that if, in fact, the infant exercised 
 due care at the time of the accident, he may recover therefor, although the 
 parent or guardian was negligent in permitting him to go abroad, since in 
 such a case the proximate cause of the injury is the immediate negligence 
 of the defendant, and not the more remote contributory negligence of the 
 parent or guardian; the effect of the rule as held in that State being that 
 in order to prevent a recovery, there must be actual contributory negli- 
 gence on the part both of the infant and of his parent or guardian. See 
 Lynch v. Smith, 104 Mass. 52. But in New York it is held, by a strict 
 application of the rule, that the acts of a child, not sui juris, contributing 
 to the injury, are not a defence to an action brought therefor, unless the 
 parent or guardian of the child was negligent. Kunz v. Troy, 104 N. Y. 
 344. It is held, in Indiana, that the general rule does not apply when the 
 defendant has been guilty of " gross " or wanton negligence, causing the 
 injury. Lafayette & Indianapolis R. R. o. Huffman, 28 Ind. 287. 
 
 8 The Burgundia, 29 Fed. Eep. 464; Kunz v. Troy, 104 N. Y. 344; 
 Kyne v. Wilmington & N. R. R., 14 Atl. Rep. 922 (Del. 1888); Lynch v. 
 Smith, 104 Mass. 52; Gibbons v. Williams, 135 Mass. 333; Collins v. 
 South Boston R. R., 142 Mass. 301; Casey v. Smith, 152 Mass. 294; 
 Pittsburg, Fort Wayne & Chicago E. R. v. Vining, 27 Ind. 513 ; Lafay- 
 ette & Indianapolis R. R. v. Huffman, 28 Ind. 287; Chicago & Alton 
 K. R. V. Logue, 157 111. 621 (but see § 108, post) ; Mobile & Ohio R. R. v. 
 Watley, 69 Miss. 145; Lehman v. Brooklyn, 29 Barb. 236; Maugam v. 
 Brooklyn City R. R., 36 Barb. 230; Morrison v. Erie Railway, 56 N. Y. 
 302, 309; Huerzeler v. Cent. Tr. Co., 139 N. Y. 490; Brown v. European 
 & North American Railway, 58 Maine, 348, 388; Leslie v. Lewiston, 62 
 Maine, 468 ; Singleton v. Eastern Counties Railway, 7 C. B. n. s. 287 ; 
 Waite V. Northeastern Railway, El. Bl. & El. 719, as cited post. See 
 Ewen V. Chicago & N. W. R. R., 38 Wis. 613, 628. It is said further, in 
 Wisconsin, that where the child is so young as to be non sui Juris, it is a 
 material question whether the parent was or was not negligent in com- 
 mitting the child to a temporary custodian, and whether such custodian 
 
§ 107.] NEGLIGENCE : PROXIMATE CAUSE. 173 
 
 ordinary rules, as to the questions of law and fact, are to be 
 applied when the issue is upon the negligence of the parent 
 or guardian of a child ; and when the facts are doubtful or 
 disputed, or, if not disputed, leave the inferences to be drawn 
 therefrom doubtful, the whole question is for the jury.^ So 
 
 was of proper age and discretion to care for it. Hoppe v. Chicago, M. & 
 St. P. R. E., 61 Wis. 357 ; Dahl v. Michigan Central R. R., 62 Wis. 652; 
 Parish v. Eden, 62 Wis. 272; Hooker v. Chicago, M. & St. P. R. R., 76 
 Wis. 542. In the latter case the court avoid the decision of the question 
 whether the negligence of the parent or guardian is properly to be imputed 
 to the infant. 
 
 1 Bliss V. South Hadley, 145 Mass. 91 ; Creed v. Kendall, 156 Mass. 
 291 ; Quincy v. Boston Street Railway, 163 Mass. 5 ; Chrystal v. Troy & 
 Boston R. R., 105 N. Y. 164; Birkett v. Knickerbocker Ice Co., 110 N. Y. 
 504; Weil V. Dry Dock, E. B. & B. R. R., 119 N. Y. 147; Payne </. 
 Humeston & S. R. R., 70 Iowa, 584. It has been held that the question, 
 whether the child is stii juris, and so capable of contributory negligence 
 is for the jury, see Stone v. Dry Dock, E. B. & B. R. R., 115 N. Y. 104. 
 This would seem to be the application, in another form, of the ordinary 
 rule that the measure of cave to be exacted from an infant is to be pro- 
 portioned to its age and capacity, and that the question whether the in- 
 fant exercised such measure of care is, ordinarily, one of fact. Thus 
 where the plaintrS was an infant seven years and six months old, the 
 court said: " In some cases, when all the circumstances attending the act 
 and the situation of the plaintiff are settled and undisputed, and these 
 circumstances show, according to the common experience of all men, that 
 the plaintiff was careless, the court has held, as matter of law, that he 
 could not recover. But such is not this case. ... It was the province 
 of the jury to determine these facts, and the law leaves to their judgment 
 and experience the inference whether or not, upon the circumstances 
 which they found to exist, the plaintiff was using such care as is reason- 
 ably to be expected of one of her years." Mattey v. Whittier Machine 
 Co., 140 Mass. 337. The plaintiff, a boy of six years, in charge of his 
 brother a boy of eleven, was playing in the street near a derrick which 
 the defendant had left there over Sunday. The plaintiff sat down on the 
 drum of a cylinder of the derrick, and another boy turned the wheel, 
 crushing the plaintiff's finger between the cogs. It was held no error to 
 submit to the jury the questions, 1, whether the plaintiff was or was not 
 sui juris; 2, if he was, whether he was guilty of contributory negligence; 
 3, whether his parents were guilty of contributory negligence in per- 
 mitting him to go abroad in charge of his brother ; 4, whether the der- 
 rick was, under the circumstances, a dangerous machine and likely to 
 cause injury to children, if left unguarded or unfastened ; 5, whether it 
 was so left ; and, 6, if it was both dangerous to children and unguarded 
 and unfastened, whether that, as matter of fact, constituted negligence. 
 Jonash v. Standard Gas Light Co., 56 N. Y. Supr. Ct. 447. 
 
174 PERSONAL INJURIES. [CHAP. III. 
 
 far as the doctrine which imputes the negligence of the parent 
 or guardian to the child applies to the case of a child con- 
 veyed as a passenger by a common carrier, it seems to be 
 made to rest by the English courts upon the terms of the 
 contract of transportation. The grandmother of an infant 
 five years old had taken it to a railway station and bought 
 tickets for its and her own transportation by train. In cross- 
 ing to the platform where they must take the train, the child 
 was injured by a passing train. The jury, having found 
 specially, that the grandmother was negligent, Campbell, 
 C. J., said : " The relation of master and servant certainly 
 did not subsist between the grandchild and the grandmother, 
 and she cannot, in any case, be considered as his agent ; but 
 we think that the defendants, in furnishing the ticket to the 
 one and the half ticket to the other, did not incur a greater 
 liability towards the grandchild than towards the grand- 
 mother, and that she, the contracting party, must be implied 
 to have promised that ordinary care should* be taken of the 
 grandchild. ... At all events, a complete identification seems 
 to us to be constituted between the plaintiff and the party 
 whose negligence contributed to the damage, ... in the 
 same manner as if the plaintiff had been a baby only a few 
 days old, to be carried in a nurse's arms." Cockburn, C. J., 
 said : " I put the case on this ground, that when a child of 
 such tender years and imbecile age is brought to a railway 
 station or to any conveyance, for the purpose of being con- 
 veyed, and is wholly unable to take care of itself, the contract 
 6f conveyance 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." Pollock, C. B., said : " There is 
 really no difference between the case of a person of tender 
 years under the care of another, and a valuable chattel com- 
 mitted to the care of an individual, or even not committed to 
 such care. The action cannot be maintained unless it can be 
 maintained by the person having the apparent possession, even 
 though the grandchild or the chattel was not regularly put into 
 the possession of the person, as, for instance, though the party 
 taking charge of the child had done so without the father's 
 consent ; that circumstance would make no difference as to 
 
§§ 107-108.] NEGLIGENCE : PROXIMATE CAUSE. 175 
 
 the question of the child's right." ^ But the broad reason of 
 the rule, as being applicable to all cases, would seem to be, as 
 stated by Cowen, J., that the parent or guardian is the keeper 
 or agent to whom the care of the child is confided, and that, 
 as to third persons, his negligence is that of the infant.^ 
 
 § 108. Contrary Role ; Question discussed : Actions for Iioss 
 of Service. — The contrary rule that " the contributory negli- 
 gence of a parent, guardian, or other person having control 
 of the child, is not to be imputed to the child himself," was 
 laid down in a comparatively early case in Vermont,^ and has 
 been followed in many States.* As it is expressed in New 
 Hampshire,^ a child of tender years may recover for an 
 injury which might have been avoided by the exercise of 
 ordinary care on the defendant's part, although his parent or 
 
 1 Waits V. Northeastern Railway, El. Bl. & El. 719. 
 
 " Hartfield v. Roper, 21 Wend. 615. 
 
 « Robinson v. Cone, 22 Yt 213. 
 
 * Newman v. Phillipsburgh Horse Car Co., 19 Atl. Rep. 1102 (N. J. 
 1890); Winters o. Kansas City Cable R. R., 99 Mo. 509; Bellefontaine 
 & Indiana R. R. v. Snyder, 18 Ohio St. 399; Ferguson v. Columbus & 
 R. R. R., 77 Ga. 102; Chicago City Railway u. Robinson, 117 Bl. 1; 
 Chicago City Railway v. WUcox, 138 111. 370 (iu this case the previous 
 decisions upon this subject, in Illinois, are explained or distinguished, 
 but see § 107, ante, n.) ; Daube v. Tennison, 154 111. 210; Louisville 
 Canal Co. v. Murphy, 9 Bush, 522; Pennsylvania R. R. v. Kelley, 3 
 Penn. St. 372 ; Ranch v. Lloyd, 3 Penn. St. 358 ; Glassey v. Hestonville, 
 &c. Railway, 57 Penn. St. 172; North Pennsylvania R. R. v. Mahoney, 
 57 Penn. St. 187; Kay v. Pennsylvania R. R., 65 Penn. St. 269; Crissey 
 V. Hestonville, &c. Railway, 75 Penn. St. 83 (but see Pennsylvania 
 R. R. V. James, 81* Penn. St. 194); Government Street R. R. v. Hanlon, 
 53 Ala. 70; Birge v. Gardiner, 19 Conn. 507 ; Daley v. Norwich & 
 Worcester R. R, 26 Conn. 598; Bronson v. Sonthbury, 37 Conn. 199; 
 Norfolk & Petersburg R. R. v. Ormsby,.27 Gratt. 455; Trumbo v. City 
 Street Car Co., 89 Va. 780; Railway Co. v. Rexroad, 59 Ark. 180; 
 Northern Central R. R. v. Price, 29 Md. 420 ; Baltimore City R. R. v. 
 McDonald, 41 Md. 534; Whirley v. Whiteman, 1 Head, 620; Bottoms v. 
 Seaboard & R. R. R., 114 N. C. 699 ; Barnes v. Shreveport City R. R., 
 47 La. Ann. 1218 ; Boland v. Mississippi R. R., 36 Mo. 490 ; Isabel v. 
 Hannibal & St. Jo. R. R., 60 Mo. 475. In the latter case the rule laid 
 down is put upon the direct application of the ordinary doctrine of proxi- 
 mate cause. See Gardner v. Grace, 1 F. & F. 559. 
 
 6 Bisaillon v. Blood, 64 N. H. 565. 
 
176 PERSONAL INJURIES. [CHAP. IH. 
 
 guardian permitted him to place himself in a position of 
 danger without a custodian. The rule seems to rest upon the 
 ground that whether or not the child is sui juris is not 
 material in determining the question of responsibility, since 
 this must, under the application of the doctrine of proximate 
 cause, always be determined by the acts of the parties at or 
 about the time of the accident. Moreover, it would seem to 
 be evident that the mere fact that an infant is not sui Juris is 
 not conclusive to show that, 1, he could not be safely trusted 
 to go where he did go or to do what he did do, or, 2, that he 
 did not behave with reasonable prudence in the circumstances 
 in which he was placed. It is apprehended that a child of 
 six years, although not sui juris, might safely be trusted to 
 walk to school along a country road, and if he be injured by 
 the act of another while so doing, the only question should 
 be whether he behaved with due care and whether the person 
 Injuring him was negligent. So it is apprehended that the 
 question whether the infant is of sufficient capacity to be 
 trusted in the circumstances in which he is placed by the 
 act of his parent or guardian is in reality a question of fact 
 in every case. It is further to be observed that the weight of 
 authority, even in those courts which impute the negligence 
 of the parent or guardian to the child, is in favor of the rule 
 that an infant is capable of negligence, and, conversely, of 
 exercising due care ; ^ and it is difficult to perceive the sound 
 reason for a rule which is or is not to be applied according as 
 the infant is or is not under the legal control of another. It 
 appears, however, to be admitted, as a general rule, that, 
 when the parent sues for the loss of the child's services, his 
 own negligence in failing properly to care for the safety of 
 the child will prevent him from recovering ; since, in such 
 cases, the negligence of the plaintiff may well be referred to 
 as being the proximate cause of the injury complained of.^ 
 
 1 See § 95, ante. 
 
 ' See Glassey v. Hestonville, &o. Railway, 57 Penn, St. 176; Ktts- 
 burg, A. & M. Railway v. Pearson, 72 Penn. St. 169 ; Woeckner v. 
 Erie El. Works Co., 182 Penn. St. 182; McCauU v. Bruner, 91 Iowa, 215; 
 Northern Central R. R. t>. Price, 29 Md. 420 ; Baltimore & Ohio R. R. 
 V. Trainor, 83 Md. 542; Norfolk & Petersburg R. R. v. Ormsby, 27 
 Gratt. 455; JefEersonville, M. & I. R. R. v. Bowen, 49 Ind. 154; Hunt 
 
|§ 108-108 a.] NEGLIGENCE : PROXIMATE CAUSE. 177 
 
 § 108 a. Negligence imputed to Representatives of Deceased 
 Person. — In those cases, founded upon the statute, which are 
 brought by the personal representatives, or next of kin, of 
 a deceased person, to recover damages for the death of such 
 person by the negligence of the defendant, it would seem to 
 be a rule sustained by reason and principle that if the 
 deceased was guilty of contributory negligence in respect of 
 the accident which caused his death, his representative can- 
 not recover.^ So where the action was brought by a husband 
 to recover for the loss of the services and society of his wife, 
 it was held that if the injury was due to the wife's contribu- 
 tory negligence, this might be imputed to the husband and 
 so preclude him from recovering.^ The question is more 
 difficult when the contributory negligence of the persons to 
 be benefited by the action is relied on to defeat it. It has 
 been held, upon a construction of the rule that the contribu- 
 tory negligence of a third party shall not defeat the action,* 
 that it is not necessary for the representative of the deceased, 
 suing for his death, to negative contributory negligence on his 
 own part, since no negligence is to be imputed in such cases.* 
 But it has also been held, in an action by an administrator, 
 that the contributing negligence of a part of the beneficiaries 
 of the action should be a defence as to them ; but not as to 
 those beneficiaries who had not been guilty of such negli- 
 gence ; and that the jury might distribute the statutory 
 damages among the several beneficiaries according to this 
 rule.^ 
 
 ». Geier, 72 HI. 39.3; Belief ontaine & I. R. R. v. Snyder, 24 Ohio St. 
 670, 18 Ohio St. 399; Westbrook v. Mobile & Ohio R. R., 66 Miss. 560; 
 Alabama Great So. R. R. v. Dobbs, 101 Ala. 219; Bamberger v. Citizens' 
 Street Railway, 95 Tenn. 18. It has been held that in an action by 
 husband and wife, for a personal injury to the wife, his contributory 
 negligence will defeat the suit ; Dixon, J., dissenting. Penn. R. R. v. 
 Goodenough, 55 N. J. L. 577. 
 
 1 Baltimore & Potomac R. R. v. State, 75 Md. 152. 
 
 ^ Chicago, B. & Q. R. R. v. Honey, 27 U. S. App. 196. 
 
 » See §§ 103, ante, 201, post. 
 
 * Indiana Mfg. Co. v. Millican, 87 Ind. 87 ; Pittsburg, C. C. & St. L. 
 R. R. V. Burton, 139 Ind. 357. 
 
 « Wolf V. Railway Co., 55 Ohio St. 517. 
 
 12 
 
178 PERSONAL INJURIES. [CHAP. III. 
 
 § 109. Limitation of the Rule in Cases of Statutory Liability. — 
 Where an action for personal injuries is founded upon a stat- 
 utory liability, the general doctrine of proximate cause has 
 been somewhat qualified in a line of cases in Massachusetts. 
 In actions against municipalities for injuries caused by de- 
 fects in highways, the liability in that State, and generally 
 elsewhere, is, by the terms of the statute, limited to cases in 
 which the defect is the direct and immediate cause of the 
 injury ; and so the general rule that the contributory negli- 
 gence of a third party will not excuse a defendant whose 
 negligence is, of itself, an efficient cause of the accident, is 
 held not to apply. The statute, generally, creates a specific 
 liability, as against the municipality, for injuries resulting 
 from defects in highways, bridges, etc., directly causing the 
 injury ; and if this result from a more remote cause, or from 
 any efficient concurring cause, without which it would not 
 have happened, the defendant municipality is held not respon- 
 sible. Thus, where a horse, attached to a vehicle, was fright- 
 ened by reason of the striking of the vehicle against an 
 obstacle, which constituted a defect in a highway, in a city, 
 and ran, and struck a person travelling on foot in the high- 
 way, thereby injuring him, it was held that the injured person 
 had no ground for a recovery as against the city, since, al- 
 though the defect was the efficient, it was not the moving 
 cause of the accident.* But, in a case only to be distinguished 
 from that last cited by the fact that the runaway was caused 
 by the negligence of a private person defendant, the action 
 was supported.^ The court said : " Statute liability is more 
 narrowly restricted than the rule in the actions at common 
 law for damages caused by negligence, in which it is perfectly 
 well settled that the contributory negligence of a third party 
 is no defence, where the defendant has also been guilty of 
 negligence, without which the damage would not have been 
 sustained." And it is said : " Liability of towns is wholly 
 statutory ; and, by the construction given to the statute, no 
 action can be maintained unless the injury arises wholly from 
 the defect." » 
 
 ^ Marble v. Worcester, 4 Gray, 395. 
 
 " McDonald v. Snelling, 14 Allen, 290. 
 
 8 Eaton V. Boston & Lowell K. R., 11 Allen, 500; and see Kidder v. 
 
§§ 109-110.] NEGLIGENCE : PROXIMATE CAUSE. 179 
 
 § 110. Questions of Law and Pact. — As upon the question of 
 negligence generally,^ so upon the question of proximate cause, 
 the expressions in the authorities are not uniform as to whether 
 this is to be considered as a question of law, or of fact, or as 
 a mixed question of law and fact.^ The discussion of the 
 subject does not seem to be important, since it is admitted, 
 generally, that the question whether, in any case, the injury 
 suffered was within the relation of cause and effect legally to 
 be attributed to the alleged wrongful act of the defendant, is, 
 when the facts are in dispute, to be determined by the jury.^ 
 This is often a difficult question, requiring practical knowl- 
 edge and experience for its determination, and, when there 
 is any evidence to justify the verdict, the conclusion of the 
 jury will not be set aside as bad in law.* If the facts, and the 
 inferences to be drawn therefrom, are not disputed, the ques- 
 tion is for the court ; * but if the inferences to be drawn from 
 the undisputed facts are not clear, the question is still for the 
 jury.6 
 
 Dunstable, 7 Gray, 104; Jenks v. Wilbraham, 11 Gray, 142; Richards v. 
 Enfield; 13 Gray, 344; Raymond v. Haverliill, 168 Mass. 382; Moore v. 
 Abbott, 32 Maine, 46 ; Libbey v. Greenbush, 20 Maine, 47. 
 
 1 See § 93, ante. 
 
 ' See Bronson v. Oakes, 40 U. S. App. 413; McCauley v. Noroross, 155 
 Mass. 584. 
 
 * Lane v. Atlantic "Works, 111 Mass. 136; Kreuziger v. Chicago & « 
 North-Western R. E., 73 Wis. 158; Lynch v. Brooklyn City R. R., 5 N. Y. 
 Sup. N. E. Rep. 311 ; McCabe v. Manhattan Railway, 6 N. Y. Sup. N. E. 
 Rep. 413; Sweeney v. New York Steam Co., 6 N. Y. Sup. N. E. Rep. 
 528; Rhing v. Broadway & S. A. Co., 53 Hun, 321; Brown v. Central 
 Pacific R. R., 72 Cal. 523. 
 
 * Lane v. Atlantic Works, 111 Mass. 136. See Chicago, B. & Q. R. R. 
 V. Spirk, 51 Neb. 169. 
 
 ° Pike V. Grand Trunk Railway, 39 Fed. Rep. 255 ; South Side Passen- 
 ger R. R. V. Trich, 117 Penn. St. 390; Kreuziger v. Chicago & N. W. R. 
 R., 73 Wis. 158. 
 
 ^ Thus, in an action against a town for injuries received while driving 
 across a bridge, where it appeared that the bridge fell, that one of the 
 axles of the wagon broke, and that the wagon tipped over, it was held to 
 be a question of fact whether the falling of the bridge caused the axle to 
 break, or whether the tipping over of the wagon by reason of the break- 
 ing of the axle, caused the bridge to fall. Spaulding v. Sherman, 75 Wis. 
 77. 
 
180 PBBSONAL INJUBIES. [CHAP. IT, 
 
 CHAPTER IV. 
 OF NEGLIGENCE ON THE PART OE THE DEFENDANT. 
 
 SECTION L 
 
 GENERAL RULES. 
 
 § 111. Burden of Proof : No Presumption from Occnrrenoe of 
 Accident : Exception. — In order to support an action for per- 
 sonal injuries, at common law, " two things must concur, . . . 
 the fault of the defendant, and no want of ordinary care on 
 the part of the plaintiff." * And the great weight of authority 
 is in favor of the rule that the burden of proof to establish 
 the fact of negligence on the part of the defendant rests upon 
 the plaintiff and is to be sustained only by the production of 
 positive testimony. It follows that the mere fact of the 
 occurrence of an accident which causes an injury cannot 
 establish, prima facie, the fact of negligence,^ although it 
 seems to have been held otherwise in a few cases.^ There is, 
 
 ^ Per Lord Ellenborough, in Butterfield v. Forrester, 11 East, 60. 
 
 2 Hammock f. White, 11 C. B. (jf. s.) 588 ; Bii-d v. Great Northern 
 R. E., 28 L. J. (n. s.) Exch. 3; Baltimore Elevator Co. v. Neal, 65 Md. 
 438; Allen v. Smith Iron Co., 160 Mass. 557; Carmody v. Boston Gas 
 Light Co., 162 Mass. 53D; Clare v. N. Y. & N. E. R. R., 167 Slass. 39; 
 Murphy V. B. & A. R. R., 167 Mass. 64; O'Xeal v. O'Connell, 167 Mass. 
 388; Bahr v. Lombard, 53 N. J. L. 233; Penn. R. R v. Middleton, 
 57 X. J. L. 154; Redmond ». Delta Lumber Co., 96 Mich. 545; Joliet 
 Steel Co. V. Shields, 146 111. 603 ; Hart v. 'Washington Park Club, 158 111. 
 9 ; Newry v. Brackenridge Lumber Co., 48 La. Ann. 950 ; Mary Lee, &c. 
 R. R. V. Chambliss, 97 Ala. 171. 
 
 2 Thus, in a comparatively eariy case in the Supreme Court of the 
 'United States, it was held that the fact that a stage-coach was upset, and 
 the plaintifiE injured, waa, priTna facie, evidence of carelessness or negli- 
 gence on the part of the defendant owner of the coach, and threw upon 
 the defendant the burden of proving that the accident did not occur by 
 
§ 111.] NEGUGENCE OP DEPENDANT. 181 
 
 however, a large class of cases which form an apparent, rather 
 than an actual, exception to the general rule, namely, those in 
 which the fact of the occurrence of the accident shows conclu- 
 sively, or justifies a fair inference, that the accident could not 
 have occurred without preceding negligence on the part of the 
 defendant. In such cases the accident and its incidents are 
 in the nature of positive facts tending to support the burden 
 of proof, which remains, as in all cases, upon the plaintiff.^ 
 In some of the States, the common-law rule as to the burden 
 of proof has been changed in certain cases in which railway 
 companies are defepdants.^ 
 
 the fault of the driver. Stokes o. Saltonstall, 13 Peters, 181 (1839). STo 
 cases were cited by the court. So, in Pennsylvania, it was held that, 
 when a passenger is injured without fault on his part, the law raises, 
 prima facie, a presumption of negligence on the part of the carrier and 
 throws the burden on him to prove that he was not negligent. It was 
 further held that this presumption might be rebutted by shoynng that the 
 accident could not have been prevented by human foresight or prudence, 
 being the result of inevitable accident. SuUivan v. Philadelphia & Bead- 
 ing R. R., 80 Penn. St 234 ; Philadelphia & Reading R. R. v. Ander- 
 son, 94 Penn. St. 351. It was held, in the former case, that the fact that 
 the accident whereby the plaintiff was injured was caused by the defend- 
 ant's train running over a cow unlawfully upon its track was not, of 
 itself, sufficient to repel the presumption of negligence, since it was the 
 defendant's duty to guard against such accidents. See, to the same effect, 
 Laing r. Colder, S Penn. St. 479, 484. It is held, in Indiana, that there is 
 a presumption of negligence from the fact of the accident. Louisville, A. 
 & C. R. R. v. Jones, 108 Ind. 551. See contra, Euhns v. Wisconsin, I. & N. 
 R. R., 70 Iowa, 561. So where the negligence all^jed was in the im- 
 proper construction of a street crossing, and there was no evidence to 
 show the manner of construction, or the kind of material used, it was held 
 error to submit the question of negligence to the jury. Stein v. Council 
 Bluffs, 7- Iowa, ISO. It has been said, in Gieorgia, that there is no pre- 
 sumption of n^ligence from the occurrence of the accident, unless the 
 plaintiff proves that he was without fault. Western & Atlantic R. R. c. 
 Tandiver, 85 Ga. 470. 
 
 1 See § 111 a, post. 
 
 * The civU code of Alabama, 1886, § 1147, as amended by the Acts 
 1SS7, p. 146, provides that in actions for injuries resulting from failure to 
 comply with § 1444 of the code, which requires signals to be given while 
 running a locomotive within the corporate limits of a city, town, or vil- 
 lage, the burden of proof to show snch compliance is on the defendant. 
 See Georgia Pacific R. R. r. Blanton, 84 Ala. 154. In Mississippi, Rev. 
 Code, 1880, § 1059, it is provided that proof of injury inflicted by cars or 
 
182 PERSONAL INJURIES. [CHAP. IT, 
 
 § 111 a. Negligence presumed — Res ipsa Iioquitur. — So 
 far as the maxim res ipsa loquitur can be considered as ex- 
 pressing a principle of law, it is an application to a particular 
 class of cases of the general rule that where the evidence of 
 negligence is conclusive, the court may find it as matter of 
 law and direct a verdict accordingly.^ As the conclusion 
 of law in such cases always involves a determination of fact, 
 it follows that the application of the rule must always depend 
 largely upon the circumstances of the particular case. Thus 
 it is said that there is a prima facie presumption of negligence 
 from the occurrence of such an accident as cannot he expected 
 to happen in the ordinary course of things, unless by the neg- 
 ligence of the defendant;^ and, again, that whenever it is 
 necessary to introduce extrinsic evidence in order to prove 
 that the defendant was negligent, the doctrine of res ipsa 
 loquitur does not apply .^ Generally, the sudden breaking of 
 a piece of machinery is not, of itself, sufficient to justify the 
 conclusion of negligence ; * but it may sometimes be inferred 
 that an appliance that gives out while in use is defective.^ It 
 
 locomotives, while in motion shall be prima facie evidence of the want of 
 reasonable skill and care on the part of the railroad company's servants in 
 reference thereto. It is held that this provision is applicable even when 
 the injury sued for resulted from the precedent wrongful act of the injured 
 person. Vicksburg & M. R. R. v. Phillips, 64 Miss. 108. In Georgia, by 
 Code, § 3033, it is provided that negligence shall be presumed on the part 
 of a railroad company whenever any person shall be injured by the run- 
 ning of its cars or other machinery. See Georgia R. R. & Banking Co. t>. 
 Nelms, 83 Ga. 70. 
 
 1 See § 94, ante. 
 
 ^ Minster v. Citizens Railway, 53 Mo. App. 276 ; North Baltimore 
 Pass. Railway v. Kaskell, 78 Md. 517 ; Shaf er v. Lacock, 168 Penn. St. 497. 
 
 8 Hygienic, &c. Co. v. Raleigh & G. R. R., 122 N. C. 881. 
 
 * Dobbins v. Brown, 119 N. Y. 188 ; Robinson v. Wright, 94 Mich. 
 283; Sack v. Dolese, 137 El. 129. 
 
 6 Reilly v. Campbell, 20 U. S. App. 334. In Goll v. Manhattan Rail- 
 way, 5 N. Y. Sup. N. E. Rep. 185, it was held that negligence might be 
 inferred from the nature of the accident where the cylinder of an engine 
 on the defendant's elevated railway burst and a fragment of it struck the 
 plaintiff in the street below. Where a knife flew out of a revolving 
 " shaperhead " the first time it was used, the machine being an invention 
 of the defendant, and injured the plaintiff, it was held that this fact had 
 a tendency to show that the machine was dangerous. Marshall v. Widde- 
 
§§ 111-111 a.] NEGLIGENCE OP DEFENDANT. 183 
 
 is held that mere proof that machinery falls and injures the 
 plaintiff is not sufficient to charge the defendant with negli- 
 gence.^ It was held that the fact that a bale of merchandise 
 in the defendant's warehouse fell from a "jigger-hoist" or 
 crane, by which it was being lowered, upon the plaintiff, who 
 was in the defendant's warehouse on business, was sufficient 
 evidence of negligence to go to the jury.^ In the same case, 
 it was said : " In an action for personal injury caused by the 
 alleged negligence of the defendant, the plaintiff must adduce 
 reasonable evidence of negligence to warrant the judge in leav- 
 ing the case to the jury ; but where the thing is shown to be 
 under the management of the defendant or his servants, 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 ex- 
 planation by the defendant, that the accident arose from want 
 of care." So, the falling of a piece of iron from an elevated 
 railway structure into a highway, by which a traveller is in- 
 jured, raises the presumption of negligence against the com- 
 pany ; ^ and so where cross-ties fell from a loaded railway car 
 
 comb Furniture Co., 67 Mich. 167, Sherwood, J., dissenting. See Cole- 
 man i\ Mechanics Iron Co., 168 Mass. 254. 
 
 1 Dobbins v. Brown, 119 N. T. 188. 
 
 2 Scott V. London & St. Kath. Docks Co., 5 Q. B. 411, 11 L. T. Cn. s.) 
 333, per Channell & Piggott, BB., Pollock, C. B., doubting, and Martin, 
 B., dissenting. But in Welfare v. Brighton Railway, L. R. 4 Q. B. 693, 
 it appeared that the plaintiff was lawfully iu the defendant's railway 
 station on business when a plank and a roll of zinc fell from the roof of 
 the portico and injured him, a man being seen at the same time on the 
 roof of the portico. It was held, as matter of law, that the action could 
 not be maintained, and Cockbum, C. J., said: " If the question turned 
 upon whether there had been any negligence on the part of the man carry- 
 ing the zinc, who may perhaps have trodden upon a plank which gave 
 way under him and which caused the plank and zinc to fall, it would be 
 important to ascertain whether the man was the servant of the company, 
 or merely the servant of some contractor," in which case the company, it 
 was said, would not be liable. See Hammack v. White, 5 L. T. (n. s.) 
 676, 31 L. J. C. P. 139; Byrne v. Boadle, 9 L. T. (sr. s.) 450. 
 
 ' Hogan V. Manhattan Railway, 149 N. Y. 23 ; Uggla v. West End 
 Street Railway, 100 Mass. 351. So where the defendant dropped a chisel 
 from a building upon the plaintiff passing on the sidewalk. Dixon v. 
 Plans, 98 CaL 384. 
 
184 PERSONAL INJURIES, [CHAP. IV. 
 
 upon the plaintiff who was lawfully walking on a footpath hy 
 the track. 1 It is held that the falling of an electric arc lamp, 
 in the absence of explanation, is evidence that it was im- 
 properly secured; 2 and, generally, it being the duty of persons 
 using dangerous appliances on the highway, as electricity, so 
 to manage them as not to injure travellers, the falling of 
 " live " electric wires into a street, caused by the imperfection 
 of appliances, will create the presumption of negligence.^ 
 One who so constructs a building that ice and snow collecting 
 on it will probably fall upon the sidewalk below, is responsible 
 for resulting injuries without further proof of negligence.* 
 The fact of the occurrence of a railway accident will always 
 be evidence, at least, of negligence,^ and it has been held that 
 the fact that a passenger is injured while travelling on a train, 
 in the exercise of due care, creates a presumption, as against 
 the railway company,^ but it is apprehended that this rule wants 
 at least the qualification that the cause of the injury shall be 
 shown to have been within the control of the defendant.^ It 
 
 1 Howser v. Cumberland & P. R. R., 80 Md. 146. So where boards 
 piled on the ground, by the defendant, fell and injured the plaintifE. 
 McQueen v. Mechanics' Institute, 107 Cal. 163. 
 
 2 Gallagher v. Edison 111. Co., 72 Mo. App. 576. 
 
 » Western Union Tel. Co. v. State, 82 Md. 293; Haynes v. Raleigh 
 Gas Co., 114 N. C. 203; Arkansas Telephone Co. v. Ratteree, 57 Ark. 
 429. So where the wires were hung so low as to be dangerous to persons 
 passing under them. Girandi v. Electric Imp. Co., 107 Cal. 120. 
 
 * Hannem v. Pence, 40 Minn. 127. See Edgerton v. N. T. Central 
 R. R., 39 N. Y. 227 ; Mullen v. St. John, 57 N. T. 557 ; Lyons v. Rosen- 
 thal, 11 Hun, 46; Kirst b. Milwaukee, L. S. & W. R. R., 46 Wis. 486; 
 Cummings v. National Furnace Co., 66 Wis. 603. 
 
 6 Bonner v. Grumbach, 2 Tex. Civ. App. 482 ; Texas & Pacific R. R. 
 V. Buckalew, 3 Tex. Civ. App. 272. 
 
 6 Baltimore & Ohio R. R. v. Swann, 81 Md. 400 ; Baltimore City Pass. 
 R. R. V. Nugent, 86 Md. 349. In Nebraska, and perhaps in other States, 
 the statute makes the occurrence of an injury to a passenger ^rima _/acte 
 evidence of negligence on the part of the railway company. See Comp. 
 Sts., Nebraska, c. 72, art. 1, sec. 3 ; St. Joseph & G. I. R. R. v. Hedge, 
 44 Neb. 448. 
 
 ' Chicago City Railway v. Rood, 163 HI. 477 (distinguishing North 
 Chicago Railway v. Cotton, 140 111. 486) ; Dennis v. Pittsburg & C. R. R., 
 165 Penn. St. 624. See New York, C. & St. L. R. R. v. Blumenthal, 160 
 m. 40; Barnowski v. Helson, (Mich.) 15 L. R. A. 33, and Reporter's 
 
§§ 111 a-112.] NEGUGENCE OP DEPENDANT. 185 
 
 is geaerallj held that the presuiuptioa of negligence arises 
 from the occurrence of a coilisioa of railway ti-ains,^ or be- 
 tween a street car and a steam railway car.'' Stopping or 
 starting a car so suddenly as to injure a passenger has been 
 held to he, prima facie, negligence ; ^ and so is the derailment 
 of a passenger train, no extrinsic cause of the accident ap- 
 pearing.* It has been held that the sudden giving way of a 
 railway track might he prima facie evidence of negligence on 
 tlie part of the defendant company which was bound to keep 
 the track in repair.^ And it is said : " There can be no doubt 
 that where an injury is alleged to have arisen from the im- 
 proper construction of a railway, the fact of its having given 
 way will amount to prima facie evidence of its insuflBciency, 
 and this evidence may become conclusive from the absence of 
 any proof on the part of the company to rebut it." ® 
 
 § 112. Violation of Statute Regulation by Defendant. — When 
 it appears that the violation by the defendant of a statute, 
 
 note. Tbe happening of an accident to a passenger in a street car, if 
 ihia is connected with the apparatus of transportation, raises a presump- 
 tion of negligence on the part of the company. Clow o. Fittshurg Trac- 
 tion Co., 158 Penn. St. 410. 
 
 I West Chicago Street R. R. r. Martin, loi TU. 523 ; North Chicago 
 Street R. R. b. Cotton, 140 lU. 486; Iron R. R. v. Maury, 36 Ohio, 418; 
 Skinner r. Railway Co., 5 Exch. 7S7; Kinney r. Xorth Carolina R. R., 
 122 X. C. 961; Galveston, H. & San A. R. R. v. Paisley, 6 Tei. Civ. 
 App. 150. See Code, Miss., § 1059, and Short v. J\. O. & Northeastern 
 R. R., 69 Miss. S4S. The failure cf electric bells at a grade crossing of a 
 railway to ring at the approach of a ti-ain is evidence of the negligence of 
 the railroad in an action against it for injuries caused by a collision with 
 the train at the crossing. Hicks v. New York, N. H. & II. R. R., 164 
 Mass. 424. 
 
 ' Railway Company v. Harrell, 58 Ark. 454. So the occurrence of a 
 rear-end collision of cable-cars. North Chic. St. Railway v. Cotton, 140 
 HI. 4S6. 
 
 » Cons. Traction Co. r. Thalheimer, 59 N. J. L. 474 ; Gnffey v. Han- 
 nibal & St. Jo. R. R., 53 Mo. App. 462. 
 
 * Albion Lumber Co. v. DeNobra, 44 U. S. App. 347 ; Railway Com- 
 pany p. Mitchell, 57 Ark. 41S; Reed t. Northeastern R. R., 37 S. C. 42. 
 In Och p. Missouri, K. & P. R. R., 130 Mo. 27, negligence was presumed 
 from the fall of a ventilating window in a raUway car. 
 
 « Storher r. St. Louis, L M. & So. R. R., 91 Mo. 509. 
 
 « Great Western Railway r. Braid, 1 Moore, P. C. (if. s.) 101. Bat 
 see Williers r. North Kent Railway, 27 L. J. (x. 8.) Exch. 417. 
 
186 PERSONAL INJURIES. [CHAP. IV. 
 
 ordinance, or municipal regulation was a contributing cause 
 to produce the injury complained of, then such statute, ordi- 
 nance, or regulation is competent evidence tending to charge 
 the defendant with negligence.^ But such evidence is incom- 
 petent, as being immaterial, if the violation of the statute by 
 the defendant did not contribute to produce the injury .^ And 
 the fact of the violation of the statute will not be conclusive 
 to establish the defendant's negligence unless it be clear that 
 but for it the accident could not have happened.^ Thus in 
 the case of injury to persons, alleged to be by reason of the 
 failure of a railroad company to fence its tracii in compliance 
 with a valid ordinance requiring it so to do, it was held that 
 the default of the company was evidence of its negligence but 
 not conclusive of its liability.* So the failure of a railroad 
 company to give the signals required by law upon its train 
 approaching a crossing will not sustain an action for damages 
 in behalf of a plaintiff who would not have been injured by 
 the failure of duty on the part of the railroad but for his own 
 want of care.* Conversely, the mere giving of the signals 
 required by law under such circumstances will not relieve the 
 defendant corporation from the imputation of negligence, if 
 in fact it was negligent in other respects, as by running its 
 
 1 Wright V. Maiden & Melrose R. R., 4 Allen, 283 ; Lane v. Atlantic 
 Works, 111 Mass. 136; Graham v. Manhattan Railway, 1J9 N. Y. 336. 
 See Lake Erie, &c. R. R. v. Craig, 37 U. S. App. 654. 
 
 " Wakefield v. Conn. & Pass. R. R., 37 Vt. 330; Steves v. Oswego & 
 Syracuse R. R. , 18 N. Y. 422, 425 ; Brooks v. BufCalo & Niagara Falls R. R., 
 25 Barb. 600; Dascomb v. Bufealo & State Line R. R., 27 Barb. 221 ; Evans 
 V. American Iron & Tube Co., 43 Fed. Rep. 519. 
 
 » Clark V. Boston & Maine R. R., 64 N. H. 323 ; Nutter v. Boston & 
 Maine R. R., 60 N. H. 483 ; Kwiotowski v. Grand Trunk R. R., 70 Mich. 
 549 ; Yancey v. Wabash, St. L. & P. R. R., 93 Mo. 433 ; Omaha, N. & B. 
 H. R. R. V. O'Donnell, 22 Neb. 475. 
 
 * Hayes v. Michigan Central R. R., Ill U. S. 228. 
 
 s Wakefield v. Conn. & Pass. R. R. , 37 Vt. 380 ; Dascomb v. Buffalo & 
 State Line R. R., 27 Barb. 221; Steves v. Oswego & Syracuse R. R., 18 
 N. Y. 422 ; Omaha, N. & B. H. R. R. v. O'Donnell, 22 Neb. 475 ; Hagar 
 17. South Pac. Co., 98 Cal. 309 ; Herbert v. South Pac. Co., 121 Cal. 227. 
 See, apparently contra, Huckshold v. St. Louis, Iron Mt. & S. R. R., 90 
 Mo. 548 ; Murray v. Missouri Pac. R. R., 101 Mo. 236 ; Giles v. Diamond 
 State Iron Co., 8 Atl. Rep. 368 (Del. 1887). 
 
§ 112.] NEGUGENCE OP DEFENDANT. 187 
 
 train at a dangeroos rate of speed under the circumstances 
 of the case.^ The fact that the defendant's failure of duty 
 consists in the violation of a statute will not relieve the plain- 
 tiff from the obligation of showing that he was in the exercise 
 of due care.^ Thus the violation, by the employer, of a statute ^ 
 
 1 Thompson v. New York Cent. & H. R. R. R., 110 N. Y. 636. It was 
 held in Tan Xorden t-. Robinson, 45 Hun, 567, that to navigate a steam- 
 boat with a boiler not inspected as required by statute, was to maintain a 
 nuisance, and raised the presumption that the omission caused the explo- 
 sion of the boiler, though there was no evidence of actual negligence on 
 the part of the defendant. So it has been held that the failure of the 
 owner of a building to comply with a statute which required that elevator 
 openings should be provided with guards •• as may be directed and ap- 
 proved by the superintendent of buildings, and such trap-doors shall 
 be kept closed at all times except when in actual use," whereby injury 
 results, is prima facie evidence of negligence, no direction or approval 
 having been obtained, when the premises have been in the same con- 
 dition for several years. McRickard v. Flint, 114 N. Y. 222. Although 
 it is generally admitted that the mere failui-e on the part of a railway 
 company to ring its bell or blow its whistle, on approaching a crossing, 
 is not, as matter of law, negligence, see Farve r. Louisville & XashvUle 
 R. R., 42 Fed. Rep. 441 ; International & Great Northern R. R. v. 
 McDonald, 75 Tex. 41; Houston & T. C. R. R. ». Erin, 77 Tex. 174, 
 yet there are cases which hold that the failure to give such signals, these 
 being required by statute, is negligence />er se. See Wall v. Delaware, L. & 
 W. R. R., 54 Hun, 454; Bitner v. Utah Central R. R-, 4 Utah, 502. So 
 although it is held that, in the absence of a statute regulating the rate at 
 which trains may be run, the question is for the jury whether a train is 
 negligently run (see § 122, and cases cited), it was held that running a 
 train at greater than the statutory rate of speed was negligence per se. 
 Keim v. Union Railway & Transit Co., 92 Mo. 314 ; Piper v. Milwaukee 
 & St. P. R. R., 77 Wis. 247 ; and see Hooker v. Chicago, M. & St. P. 
 R. R, 76 Wis. 542 ; Gulf, C. & S. F. R. R. v. Breitling, 12 S. W. Rep. 
 1121 (Tex. 1890); South & North Alabama R. R. v. Donovan, 84 Ala. 
 141. But the better opinion is that the mere running a train at a rate of 
 speed prohibited by the statute is evidence of n^ligence merely. Clark 
 c. Boston & Maine R. R., 64 X. H. 323 ; Northern Central R. R. v. Her- 
 chiskel, 3S U. S. App. 659. It has been held that failure to observe a 
 statute requiring persons engaged in blasting rocks to give seasonable 
 notice before each explosion is negligence per se, and renders the negli- 
 gent party liable for the injurious results of such explosion. Wadsworth 
 r. Marshall, SS Maine, 263. 
 
 ^ Taylor v. Carew Mauufg Co., 143 Mass. 470; Nosier v. Chicago, 
 
 » Laws of N. T. 1S90, c 398, § 12. 
 
188 PERSONAL INJURIES. [CHAP. IV. 
 
 requiring cogs in factories to be properly guarded does not 
 render the employers liable for an injury to an employee by 
 coming in contact with unguarded cogs, when the danger was 
 obvious and the employee assumed the risk of it.^ The con- 
 verse of the general rule is well stated in a case in which 
 it was held that, in an action against a railroad company for 
 injuries resulting from its negligence in not constructing or 
 maintaining a sufficient crossing as required by law, the de- 
 fendant can be relieved of liability only by showing that the 
 crossing was constructed in strict compliance with the statute ; 
 that it has always been maintained in a safe condition ; and 
 that it is located in that part of the street that is graded, and 
 usually travelled by vehicles ; or that the failure to do any of 
 these things was not the direct cause of the injury ; or that 
 the accident was the result of the negligence of the person 
 injured ; or that it was the result of the negligence of neither ; 
 or when the plaintiff, upon whom the burden of proof rests, 
 fails to show by a preponderance of evidence that the defend- 
 ant has failed to perform its duty in some respect.^ A local 
 ordinance giving street-railway cars a right of way as against 
 other vehicles does not justify the driver of such a car in 
 running down a vehicle which cannot get out of the way.^ 
 
 SECTION II. 
 
 OP CARRIERS OP PASSENGERS. 
 
 § 113. General Hule of Liability. — While a common carrier 
 of merchandise is bound by an implied contract of warranty 
 
 Burlington & Q. R. R., 73 Iowa, 268; Ryall v. Central Pacific R. R., 76 
 Cal. 474; Hudson v. Wabash W. R. R., 101 Mo. 13. See also the large 
 class of actions brought for injuries received by reason of defective high- 
 ways, in which it is held that the plaintifE is bound, in order to recover, 
 to show that he was himself in the exercise of due care, whether or not 
 the action is grounded in a common-law right or solely upon the statute. 
 
 1 E. S. Higgins Carpet Co. ». O'Keefe, 51 U. S. App. 74. 
 
 2 Hogue V. Chicago & Alton R. R., 32 Fed. Rep. 365. See McKelvy 
 V. Burlington, C. R. & N. R. R., 84 Iowa, 455. 
 
 * Lalthen v. Fort Wayne, &c. Railway, 100 Mich. 297. See also Con- 
 nor 0. Electric Traction Co., 173 Penn. St. 602. 
 
§§ 112-113.] NEGLIGiafCE OP DEFENDANT. 189 
 
 to be responsible for all loss occurring to the goods entrusted 
 to him, while these remain in his custody' as carrier, except 
 such loss as results from the act of God or of the public 
 enemy ; the carrier of passengers for hire does not warrant 
 the safety of his passengers,^ and his liability for injuries re- 
 ceived by them in the com-se of tlie transportation is founded 
 upon the negligence of the carrier in respect of his duty ; and 
 this is so whether his failure of duty be referred to a breach 
 on his part of the contract of transportation, or to a violation 
 of the public duty which, as a carrier, he owes to the public.^ 
 This rule is supported by the uniform tenor of the American 
 and the weight of the English authorities.' In an early Eng- 
 lish case, it was said that " there was a difference between a 
 contract to carry goods and a contract to carry passengers. 
 For the goods, the carrier was answerable at all events, but 
 he did not warrant the safety of the passengers. His under- 
 taking, as to them, went no further than this : that as far as 
 human foresight could go, he would be answerable for their 
 safety."* If this expression is to be taken as laying down 
 
 I " Carriers of passengers for hire are not responsible, in all particulars, 
 like common carriers of goods. They are not insurers of the personal 
 safety against all contingencies, except those arising from the act of God 
 or the public enemy. For an injury happening to the person of a passen- 
 ger by a mere accident, without fault on their part, they are not respon- 
 sible; but are liable only for want of due care, diligence, and skill." 
 Bennett v. Dutton, 10 N. H. 481. See New Jersey Traction Co. v. Gard- 
 ner, 58 N. J. L. 176; McGrell o. Buffalo O. B. Co., 153 N. T. 265. 
 
 * See § 3, ante. 
 
 * Camden & Amboy R. R. v. Burke. 13 Wend. 626; Hollister p. New- 
 ton, 19 Wend. 236; Boyce v. Anderson, 2 Pet. 155; Stokes r. Saltonstall, 
 13 Pet. 181; IngaUs v. Bills, 9 Met. 1. There are several English cases 
 in which the doctrine is intimated, either directly or iu dicla, that the 
 proprietor of a public vehicle is a vrarrantor of the safety of his passen- 
 gers, and so liable for injuries resulting from hidden defects, or weak- 
 nesses, which the utmost diligence could not have discovered. See Israel 
 o. Clark, 4 Esp. 259 (1803); Bremner o. Williams, 1 C. & P. 414 (1824) ; 
 Crofts V. Waterhouse, 3 Bing. 321 (1825); Sharp v. Grey, 9 Bing. 457. 
 In respect of these cases it is said that if they do " uphold the doctrine 
 for which they are cited, they are certainly so much in conflict with other 
 decided cases, that they cannot be viewed in the light of decided authori- 
 ties." See Ingalls o. Bills, 9 Met. 1, 7. 
 
 * Christie v. Griggs, 2 Camp. 79, and see Aston v. Hewen, 2 Esp. 533. 
 
190 PERSONAL INJURIES. [CHAP. IT. 
 
 the rule that the carrier is bound to exercise the highest de- 
 gree of care in the conduct of his business of which the human 
 mind can conceive, it states the doctrine of liability far too 
 broadly, although like expressions occur in several cases.' 
 The rule upon this subject has been stated in the Supreme 
 Court of the United States, as follows : 1. A carrier of pas- 
 sengers for hire is bound to observe the utmost caution char- 
 acteristic of a very careful, prudent man. 2. He is responsible 
 for injuries received by passengers in the course of their trans- 
 portation which might have been avoided or guarded against 
 by the exercise, upon his part, of extraordinary vigilance aided 
 by the highest skill. 3. Such caution and diligence extends 
 to all the appliances and means used by the carrier in the 
 transportation of the passenger. 4. He must provide cars or 
 vehicles adequate, that is, sufficiently secure as to strength or 
 other requisites, for the safe conveyance of passengers, and 
 for the slightest negligence or fault in that regard, from which 
 injury results to the passenger, the carrier is liable.^ Stated 
 briefly, the rule is that the carrier is bound to use the utmost 
 care and diligence in the transportation of passengers con- 
 sistent with the carrying on of his business.' This obligation 
 includes that of providing prudent and competent servants 
 and agents to conduct the business.* When the accident is 
 caused by some hidden defect in the machinery of transporta- 
 tion, which the most vigilant oversight and inspection could 
 not discover, the injury falls within that class for which the 
 law can afford no redress in the form of damages.^ And the 
 
 1 See Stokes v. Saltonstall, 13 Pet. 181; Louisville & Nashville R. R. 
 V. Kitter, 85 Ky. 368. 
 
 2 Pennsylvania Company ». Roy, 102 U. S. 451, per Harlan, J., and 
 see The New World v. King, 16 How. 469 ; Burton v. West Jersey Ferry, 
 114 U. S. 474; Race v. Cnion Ferry Co., 138 N. Y. 644. For further 
 authorities applied to the liability of railway carriers, see §§ 118-124, post. 
 
 * The carrier is bound to use " the highest degree of care which 
 a reasonable man would use." Dewort v. Lormer, 21 Conn. 245. 
 
 * Ingalls V. Bills, 9 Met. 1; Warren v. Fitchburg R. R., 8 Allen, 227. 
 6 Ingalls V. Bills, 9 Met. 1; McElroy v. Nashua & Lowell R. R., 
 
 4 Cash. 400; Schropman v. Boston & Worcester R. R., 9 Cush. 24. The 
 carrier is not bound to anticipate the happening of that which never 
 happened before, and which would not occur to a prudent man as likely 
 
§ 113.] NEGLIGENCE OF DEFENDANT. 191 
 
 carrier is not bound to provide against casualties never be- 
 fore known, and not reasonably to be expected ; as where a 
 runaway horse breaks through the gates at a railway crossing, 
 runs upon the station platform and comes into collision with 
 a passenger there waiting for a train ; "■ hence his duty is not 
 to be estimated by what, after an accident, then first appears 
 to be a proper precaution against a recurrence of it.^ It is the 
 
 to happen. Thus, where a passenger slipped under the gangway-rail of a 
 steamboat and was drowned, and it appeared that all the steamboats on 
 the defendant's line were constructed in the same way, and had been run 
 for many years, and that no like accident had before occurred, it was 
 held that there was no proof that the danger ought to have been anti- 
 cipated, and nothing in the case to charge the defendant with negligence. 
 Dougan I). Chaniplain Transportation Co., 56 N. T. 1. For a similar case 
 see Loftus v. Union Ferry Ck)., 84 N. Y. 455, and for an extreme ap- 
 plication of the rale, Crafter v. Metropolitan R. R., L. R. 1 C. P. 300. 
 If, however, the proximate cause of the injury is a clearly negligent act 
 on the part of the defendant or its servants, the defendant will not be 
 relieved from liability because the accident was one which would not 
 ordinarily be expected to follow the act. Thus it being held negligence 
 for the servants of a railroad to leave a coupling-pin unsecured upon the 
 platform of a moving car, it was further held that the fact that the acci- 
 dent which resulted from the leaving of the pin was extraordinary and 
 not to be anticipated did not relieve the defendant from its liability there- 
 for. Doyle V. Chicago, St. Paul & Kansas City R. R., 77 Iowa, 607, and 
 see Clifford v. Denver, St P. & P. R. R., 9 Col. 333. 
 
 1 Brooks V. Old Colony R. R., 168 Mass. 164. 
 
 * § 38, ante, and cases cited; Cleveland v. New Jersey Steamboat Co., 
 68 N. T. 306. See also Wyckoff v. Queen's County Ferry Co., 52 N. T. 
 32; Crocheron r. North Shore Steten Island Ferry Co., 56 N. T. 656. On 
 the other hand, it is held that the mere fact that an accident is so extra- 
 ordinary that it could not reasonably have been anticipated, does not 
 relieve the defendant from responsibility for his negligence. Doyle v. 
 Chicago, St. Paul & K. C. R. R , 77 Iowa, 607. See also, Maher b. Man- 
 hattan Railway, 53 Hun, 506; Chicago, Milwaukee & St. P. R. R. v. 
 Harper, 12S 111. 384. It is held that persons u.sing elevators for the pur- 
 pose of lifting persons to the upper stories of buildings are carriers of 
 passengers, and that the same rule of care is applicable to them as to 
 ordinary passenger carriers, and so that they are bound to provide the 
 best means and appliances which are reasonably practicable, Goodsell v. 
 Taylor, 41 Minn. 207; Treadwell v. Whittier, 80 Cal. 565, and to operate 
 these prudently. Mitchell v. Marker, 22 U. S. App. 325. But the owner 
 is not the insurer of the safety of a passenger elevator. McGrell v. 
 Buffalo O. B. Co., 153 X. Y. 265. See People's Bank v. Morgolofski, 75 
 
192 PERSONAL INJURIES. [CHAP. IT. 
 
 duty of the carrier and his servants to use vigilance in main- 
 taining order and in protecting passengers from violence or 
 insult, whether from the employees of the carrier, or from 
 other passengers ; and a failure of duty in this respect will 
 render the carrier liable for injuries to passengers caused 
 thereby.^ And to this end, the carrier may repress and pro- 
 hibit all disorderly conduct in its vehicles, and expel or 
 exclude therefrom any intoxicated person, or person whose 
 conduct or condition is such as to render acts of impropriety, 
 rudeness, indecency, or disturbance, on his part, either inevi- 
 table or probable.2 But it is apprehended that the carrier is 
 not bound to protect its passengers against mere rudeness or 
 bad manners on the part of fellow passengers or strangers.^ 
 
 § 114. "Who are Passengers. — Although, as between the car- 
 rier and the passenger, the contract for transportation is com- 
 plete when the sale of the ticket is made, it does not follow 
 that the relation of passenger and carrier, and the full respon- 
 sibility of the latter, then begins ; since the purchaser may 
 
 Md. 432 ; Hartford Dap. Co. v. SoUitt, 172 111. 222. As to his servant 
 using the elevator, the owner of it does not stand in the relation of car- 
 rier. McDonough v. Lanpber, 55 Minn 501. 
 
 ^ Meyer v. St. Loais, I. M. & So. Railway, 4 C. C. A. 221; Spohn v. 
 Missouri Pacific R. R., 87 Mo. 74; Flint ». Norwich & N. Y. Trans. Co., 
 34 Conn. 554; Putnam v. Broadway & Seventh Ave. R. R., 55 N. Y. 108: 
 MnUan v. Wisconsin Central R. R., 46 Minn. 474; Goddard v. Grand 
 Trunk R. R., 57 Maine 202; Shorley v. Billings, 8 Bush, 147 ; Stewart v. 
 Brooklyn & Crosstown R. R., 90 N. Y. 588; Chicago & Eastern R. R. v. 
 Flexman, 103 HI. 546; King v. Ohio & M. R. R., 22 Fed. Rep. 418; New 
 Orleans, St. L. & C. R. R. v. Burke, 53 Miss. 200. 
 
 * Vinton v. Middlesex R. R., 11 Allen, 304, and see Murphy v. Union 
 Railway, 118 Mass. 228. It is held that the servants of a railroad may law- 
 fully eject from its train one evidently suffering from an infections disease, 
 as small-pox. Paddock v. Atchison, T. & S. F. R. R., 87 Fed. Rep. 84L 
 Where an insane passenger shot another passenger, the railroad having 
 reason to know that he was dangerous, it was held highest degree of care 
 was imposed on the railroad ; including that of physical restraint, although 
 it need not necessarily be foreseen that a homicide would take placa 
 without such restraint. Meyer v. St. Louis, I. M. & S. R. R., 4 C. C. 
 A. 221. 
 
 » Ellinger v. Wilmington & Bait. R. R., 153 Penn. St. 213; Graeff v. 
 Phil. & R. R. R., 161 Penn. St. 230. 
 
§§ 113-114.] NEGLIGENCE OP DEFENDANT. 193 
 
 buy his ticket in advance of the time at which he intends to 
 iise it, or at an oflBce which is not in the same town, or State, 
 in which he intends to take the cars. The relation of carrier 
 and passenger begins only when the holder of the ticket puts 
 himself in charge of the carrier for the purpose of being con- 
 veyed to his destination.! But if he is passing from the office 
 or place of business of the company, where he purchased his 
 ticket, to his seat iu the cars, on the premises belonging to the 
 company; and connected with the railroad, and under the 
 direction, express or implied, of the agents of the railroad, 
 given to him as to a passenger with whom the railroad has 
 made a contract for Conveyance ; he is, while so passing to the 
 train, a passenger, and, as such, entitled to a safe opportunity 
 to enter the care at the proper time.* Whenever the perform- 
 ance of the contract of carriage in a usual and proper way 
 involves, on the part of the passenger, the reasonable necessity 
 
 ^ Thus, one who embarks upon a passenger steamboat with the inten- 
 tion of taking passage thereon, thereby becomes a passenger, although 
 his passas^money has not been paid. Cleveland v. New Jersey Steam- 
 boat Co.,^68 N. Y. 306, and see Frink r. Schroyer, IS El. 416. It has 
 been held that one who, without the knowledge of any of the trainmen, 
 endeavors to board a train which has stopped to discharge passengers at 
 a station where it does not customarily stop to receive them, does not 
 thereby become a passenger, although he has purchased a ticket and sup- 
 poses the train t« be the one which he had intended to take, and al- 
 though the raihoad had customarily permitted passengers to take such 
 train. Jones v. Boston & Maine R. R., 163 Mass. 245. But see Lewis r. 
 Del. & H. Canal Co., 145 X. Y. 508, as cited, post. One who obtains a 
 passage ticket from an agent, on his promise to pay for it ou his re- 
 turn, there not being time to pay for it before the starting of tlie train, 
 and does so pay for it, is to be treated as a passenger in an action for 
 ejectment from the train. Ellsworth r. Chicago B. & Q. R. R., 95 Iowa, 
 98. 
 
 * Warren v. Fitchburg R. R., 8 Allen, 227, and see Snow v. Fitchbuiw 
 R. R., 136 Mass. 552. In Webster v. Fitchburg R. R., 161 Mass. 298, it 
 was held that a person while running very rapidly across the premises of 
 a railroad outside the passenger station and across a track to take a train 
 on the farther track, and who is struck by a train moving on the nearer 
 track, is not a passenger although he has upon his person a ticket which 
 entities him to transportation on the train which he is attempting to 
 reach. The decision seems to rest on the ground that the contract of 
 carriage implies that in order to make the ticket-holder a passenger, " he 
 must be In a proper condition and present himself in a proper manner." 
 
 13 
 
194 PERSONAL INJURIES. [CHAP. IV. 
 
 of leaving the vehicle and returning to it, as for the purpose 
 of obtaining refreshment, the passenger is entitled to protec- 
 tion as such while leaving, for such purpose, and returning to, 
 the vehicle in which he is making his journey.' A passenger 
 upon a railway car continues to be such while rightfully leav- 
 ing the car, and the station at which it has stopped.^ But 
 one who has alighted from a car and, after the train has 
 passed on, starts away from the station over an adjacent 
 crossing of a highway at grade, ceases to be a passenger,* and 
 so one who steps from a street car to the street is no longer a 
 passenger but a traveller on the highway,* and he has no right 
 to expect that the street, where he alights, shall be in a safe 
 condition.^ So, a person walking towards a railway station 
 with the intention of buying a ticket and taking a train after 
 he gets there, is not a passenger before he reaches the station, 
 even although he might be one, in the same place, after he 
 had begun his journey.^ It is obvious where a steam railroad 
 
 ' Dodge V. Boston & Bangor Steamship Co., 148 Mass. 207; Jefferson- 
 ville, Madison & Indianapolis R. R. v. Riley, 39 Ind. 568; Peniston v. 
 Chicago, St. Louis & N. O. R. R., 34 La. Ann. 777. 
 
 2 McKimble v. Boston & Maine R. R., 139 Mass. 542. In this case it 
 was held that if a passenger on a railroad car has in his possession a 
 ticket good from one station to another, leaves the car at an intermediate 
 station, not having had an opportunity to surrender his ticket or pay his 
 fare, it cannot be said, as matter of law, in an action against the railroad 
 for negligently causing his death, that he was not riding upon the ticket 
 which he held, or that he intended to evade payment of his fare, or left 
 the car for that purpose. 
 
 8 Allerton v. Boston & Maine R. E., 146 Mass. 241. 
 
 * Creamer v. West End Street Railway, 156 Mass. 320. 
 
 * Bigelow V. West End Street Railway, 161 Mass. 393. 
 
 « June V. Boston & Albany R. R., 153 Mass. 79. One who remains in 
 a railway station after he has ascertained that the train which he intended 
 to take has gone, is, at best, a mere licensee, and cannot recover for 
 injuries sustained in leaving the station by reason of the act of the station- 
 master in extinguishing the lights at the usual time of closing the station 
 for the night. Heinlein u. Boston & Providence R. R., 147 Mass. 136. 
 See also Pittsburg, Fort Wayne & Chicago R. R. v. Bingham, 29 Ohio 
 St. 364. But where the plaintiff went to the railroad station to meet his 
 wife, and having occasion to seek a retired spot, no special resort being 
 provided, he stepped off the walk in the darkness within the depot grounds, 
 fell into a hole and was injured, it was held that he was a customer of 
 
§ 114.] NEGLIGENCE OP DEPENDANT, 195 
 
 does not require the party to purchase a ticket before board- 
 ing his train, but customarily accepts cash fares, that one is a 
 passenger who presents himself for transportation able and 
 intending to pay in cash for his passage.^ One who goes to a 
 flag station of a railroad where there is no ticket-office, for 
 the purpose of boarding a train, is, upon properly signifying 
 his intention to get upon a passenger train which has stopped 
 at the station, entitled to the rights of a passenger.^ The 
 fact that a passenger has taken passage on a train which does 
 not stop at the station where he desires to get off does not 
 affect the duty of the railway company to protect him against 
 the negligent acts of its servants ; he being entitled to the 
 same measure of protection as other passengers.^ Where one 
 evades his fare as by falsely representing that he is without 
 money, whereby he is permitted to remain on the train, the 
 relation of carrier and passenger is not established as between 
 him and the railway company.* So, after a refusal by a per- 
 son to pay the legal fare demanded by the conductor, there is 
 
 the defendant, and that he could maintain his action for the injury. 
 MoKone v. Mich. Central R. K., 51 Mich. 601. Where a woman went to 
 a railway station in a town where she was temporarily residing in order 
 ' toprocure a time table in order to see if there was change in the train 
 schedules, and while passing along the platform was injured by an object 
 thrown from a passing express train, it was held that the jury might 
 properly conclude that she was present on the platform by the implied 
 invitation of the raih-oad. Bradford v. Boston & Maine R. R., 160 Mass. 
 392. See Carpenter v. B. & A. R. R., 97 N. Y. 494; Toledo, W. & W. 
 R. R. V. Maine, 67 111. 298. A person lawfully and necessarily upon the 
 station grounds of a railroad for the purpose of receiving mail and express 
 matter from a train is entitled to the same protection as one intending to 
 take passage on the train. Tubbs v. Mich. Cent. R. R., 107 Mich. 108. 
 See § 157, post. Where one enters a railway train in order to help an 
 infirm passenger to get a seat, and is injured in getting off by reason of 
 the starting of the train, the railroad will be held to have owed him 
 ordinary care, it having notice of his intention to leave the train; but if 
 it had not notice, it will not owe him any duty. Int. & Great North. R. 
 R. V. Satterwhite, 15 Tex. Co. App. 102. 
 
 1 See Inness v. Boston, Revere Beach & L. R. R., 168 Mass. 433; 
 Northern Pacific R. R. ». Panson, 44 U. S. App. 178. 
 
 « Western & Atlantic R. R. v. Voils, 98 Ga. 448. 
 
 " Lewis V. Del. & H. Canal Co., 145 N. Y. 508. 
 
 * Condran v. Chicago, M. & St. P. R. R., 32 U. S. App. 182./ 
 
196 PERSONAL INJURIES, [CHAP. IT- 
 
 no contract which requires that such person shall be carried 
 to the next station under a rule of the company; and the 
 servants of the company may lawfully eject such person from 
 the train and use reasonable force in so doing.^ One who 
 tenders the legal fare to the conductor of a passenger train, 
 and is ejected because of his refusal to pay the customary 
 fare, which is in excess of the legal fare, may recover for the 
 injuries sustained by him by reason of his ejection.^ 
 
 § 115. Person conveyed gratuitously may be a Passenger. — 
 One whom a passenger carrier undertakes to convey gratui- 
 tously, in a vehicle intended and used for the transportation 
 of passengers, is a passenger, and may recover, in like man- 
 ner as other passengers, for injuries received by him by reason 
 of the carrier's negligence.^ And a railroad corporation has 
 been held liable for injuries occasioned through the negli- 
 gence of its servants to a stockholder of the corporation 
 riding at the president's invitation, free, and not in the usual 
 passenger car.* It seems that if the injured person entered 
 the vehicle, not as a passenger for hire but upon the invita- 
 tion of the employee in charge of the vehicle, although the 
 
 1 Moore v. Columbia R. R., 38 S. C. 1. 
 
 2 Chamberlain v. Lake Shore & M. S. R. R., 110 Mich. 614. 
 
 » Nolton V. "Western R. R., 15 N. T. 444; Todd v. Old Colony & Fall 
 River R. R., 3 Allen, 18; Littlejohn v. Fitchburg R. R., 148 Mass. 478; 
 Hurt V. Southern R. R., 41 Miss. 391 ; Head v. Georgia Pacific Railway, 
 79 Ga. 358. Where a defendant railroad company owned a bridge over 
 which it ran trains, and alongside of the track was a passway for vehicles 
 and pedestrians to travel over on payment of a toll, and the defendant's 
 employee was injured by reason of an alleged defect in such passway ; ib 
 was held that the fact that the plaintiff had a free pass to use the bridge 
 did not bar him from a recovery. Pembroke v. Hannibal & St. Jo. 
 R. R., 32 Mo. App. 61. In an action against a street-railway company, 
 for injuries, it appeared that the plaintiif accompanied her daughter into 
 the defendant's car, and that the daughter told the conductor that the 
 plaintifi was not a passenger ; that the plaintiff turned and proceeded to 
 leave the car, when the conductor started the car, thereby throwing the 
 plaintiff to the ground and injuring her. It was held that the question 
 of the defendant's negligence was for the jury. Rott v. Forty-second St., 
 &o. R. R., 1 N. Y. Supp. N. E. Rep. 518 (1888). See Suber v. Ga., Car. 
 & N. R. R., 96 Ga. 42. 
 
 * Philadelphia & Reading R. R. v. Derby, 14 How. 468. 
 
§§ 114-115.] NEGLIGENCE OP DEFENDANT. 197 
 
 invitation were given without express authority, the corpora- 
 tion may be liable for the injury in the absence of any collu- 
 sion between the employee and the injured person to defraud 
 the corporation.^ And where a railroad company holds out its 
 employees as authorized to consent to a person's being carried 
 on its trains with cattle shipped by him over its line, and 
 such employees consent, although in violation of the rules of 
 the company, such consent is equivalent to the consent of the 
 company itself.^ But it is held that one who rides, by invi- 
 tation of an employee, upon a vehicle not. intended for the 
 transportation of passengers, as upon a locomotive attached 
 to a freight train or upon a hand-car, upon a railway used 
 only for the transportation of freight, does not become a 
 passenger, even if he and other persons have customarily so 
 ridden.^ The rule of law in these cases would seem to rest 
 upon the consideration that the liability of the carrier is 
 founded upon the public duty with which the law charges 
 him to convey his passengers safely, since his liability in this 
 respect may exist whether or not there is an existing contract 
 for transportation between him and the passenger.* Persons 
 who are permitted to travel on the trains of a railroad cor- 
 poration, without payment of fare, for the purpose of vend- 
 ing newspapers and periodicals for profit and for the conveni- 
 ence of the passengers, are not servants of the corporation, 
 but passengers, and entitled to protection as such.^ It is 
 
 1 Hilton V. Middlesex R. R., 107 Mass. 108. See Flint & Pere Mar- 
 quette R. R. V. Weir, 37 Mich. Ill, 114, 115; Austin v. Great Western 
 Railway, L. K. 2 Q. B. 442, 445; Danbeck v. N. J. Traction Co., 57 
 N. J. L. 463. 
 
 * New Orleans & N. E. R. R. v. Thomas, 23 U. S. App. 37, and see 
 New York, C. & St. L. R. R. v. Blumenthal, 160 lU. 40. 
 
 ' Files V. Boston & Albany R. R., 149 Mass. 204; Stanley t). Durham 
 & N. R. R., 120 ST. C. 514; Woolsey v. Chic. B. & Q. R. R., 39 Neb. 
 798. 
 
 * See §§ 3, 5, ante. Where a passenger is carried gratuitously the 
 liability of the carrier for an injury caused by gross negligence arises not 
 from any implied contract, but from a violation of a duty imposed by the 
 circumstances. Per Selden, J., in Nolton v. Western R. R., 15 N. Y. 
 444. See also Head o. Georgia Pacific Railway, 79 Ga. 358. See § 116, 
 post. 
 
 6 Commonwealth v. Vermont & JIass. R. R., 108 Mass. 7. See § 117, 
 
 post. 
 
198 PERSONAL INJURIES. [CHAP. IV. 
 
 generally held that a railway mail clerk, travelling upon a 
 railway in the service of the United States is a passenger for 
 hire in so far as the railway company's liability for injuries 
 is concerned.^ 
 
 (a} Right of the Carrier to limit his Responsibility hy 
 Contract. 
 
 § 116. Generally, cannot avoid its Liability : Contrary Author- 
 ity. — In the United States, the weight of authority is in favor 
 of the rule that, as to passengers for hire, the stipulation by a 
 common carrier that he will not be liable for damages in case 
 of injury to the passenger, will not relieve him from responsi- 
 bility for the results of the negligence of himself and his 
 servants.'' This rule is made to rest upon the considerations : 
 (1) That a common carrier cannot lawfully stipulate for ex- 
 emption from responsibility, when such exemption is not just 
 and reasonable in the eye of the law ; ^ (2) That it is not just 
 and reasonable for a common carrier to stipulate for exemp- 
 tion from responsibility for the negligence of himself or his 
 servants ; (3) That these rules apply both to common carriers 
 of goods and common carriers of passengers, and with especial 
 
 1 Arrowsmith v. Nashville & D. R. R., 57 Fed. Rep. 165; Libby v. 
 Maine Central R. R., 85 Maine, 34; Blair v. Erie Railway, 66 N. T. 313; 
 Baltimore & Ohio R. R. v. State, 72 Md. 86 ; Norfolk & Western R. R. 
 V. Shott, 92 Va. 34. But see Price o. Penn. R. R., 113 U. S. 218. 
 
 2 Philadelphia & Reading R. R. v. Derby, 14 How. 468; Atlantic & 
 Pacific R. R. V. Laird, 58 Fed. Rep. 760, 7 C. C. A. 489; Waterbury v. 
 N. Y. C. & H. R. R. R., 17 Fed. Rep. 671 ; Pennsylvania R. R. v. Butler, 
 57 Penn. St. 335 ; Pennsylvania R. R. v. Henderson, 51 Penn. St. 315; 
 Flinn v. Philadelphia, W. & B. R. R., 1 Houst. (Del.) 469 ; Jacobus v. 
 St. P. & Chicago R. R., 20 Minn. 125; Ross ». Des Moines Valley R. R., 
 39 Iowa, 246 ; Pennsylvania R. R. v. Woodworth, 26 Ohio St. 585. 
 
 » New York Central R. R. v. Lockwood, 17 Wall. 357. As to the ap- 
 plication of the general rule to carriers of merchandise or baggage, see in 
 the United States, Hall «. Cheney, 36 N. li. 26 ; Sager v. Portsmouth, S. 
 & P. R. R., 81 Maine, 228; Jones v. Voorhes, 10 Ohio, 145; Camden & 
 Amboy R. R. v. Burke, 18 Wend. 611 ; Cole «. Goodwin, 19 Wend. 281 ; 
 Clark V. Faxton, 21 Wend. 153 ; New Jersey Steam Navigation Co. v. 
 Merchants' Bank, 6 How. 344. As to the less stringent rule adopted in 
 England and by the courts of New York, see Simons v. Great Western 
 .Railway, 18 C. B. 805, and other cases cited infra. 
 
§§ 115-116.] NEGLIGENCE OP DEPENDANT. 199 
 
 force to the latter. In the same case, after reviewing the 
 American and English decisions upon the subject, Bradley, J., 
 said : " It seems to us . . . that common carriers are such 
 by virtue of their occupation, not by virtue of the responsi- 
 bilities under which they rest. Those responsibilities may 
 vary . . . without changing the character of the employment. 
 ... It is contended that though a carrier may not stipulate 
 for his own negligence, there is no good reason why he should 
 not be permitted to stipulate for immunity for the negli- 
 gence of his servants. ... If we advert ... to the funda- 
 mental principles on which the law of common carriers is 
 founded, it will be seen that this objection is inadmissible. 
 ... In regard to passengers, the highest degree of careful- 
 ness and diligence is expressly exacted. ... It is obvious . . . 
 that if a carrier stipulate not to be bound to the exercise of 
 care and diligence, but to be at liberty to indulge in the con- 
 trary, he seeks to put off the essential duties of his employ- 
 ment. And to assert that he may do so seems almost a 
 contradiction in terms." ^ In other words, such a stipulation 
 is to be taken as void, as being against public policy.^ So, it 
 is held that a railway corporation cannot limit its liability to 
 its passengers for injuries received by them by a mere dis- 
 claimer, as by printing on the back of its season tickets these 
 words : " The corporation assumes no liability for any per- 
 sonal injury received while in a train to any season-ticket 
 holder." ^ It seems, however, that now, in England, a common 
 carrier may limit his liability by any special contract and 
 that the courts will not pass upon the question whether such 
 contract is reasonable or unreasonable.* This view of the law 
 
 1 New York Central R. R. v. Loekwood, 17 Wall. 957. 
 
 2 Davis V. Chic., M. & St. P. E. E., 93 Wis. 470. 
 
 * Commonwealth ». Vermont & Massachusetts E. R., 108 Mass. 7. In 
 Bates V. Old Colony R. R., 147 Mass. 255, it was held, if an express mes- 
 senger, holding a season ticket and desiring to ride, in the baggage car, 
 where the defendant is not bound to carry him, agrees to assume all risk of 
 injury in consideration of being permitted to ride there, that the agreement 
 was not invalid as being against public policy. See § 117, post. 
 
 * Thus, a steamship company issued a passenger ticket containing the 
 condition that " the company will not be responsible for any delay arising 
 from the perils of the sea, or from machinery, boilers, or steam, or from 
 
200 PERSONAL INJURIES. [CHAP. IV. 
 
 is in accord with the doctrine laid down in certain English 
 cases that the liability of the carrier arises solely out of the 
 contract of transportation rather than out of the general duty 
 imposed by the law upon the carrier, as to all passengers.^ 
 And there is a line of American cases, including the later 
 decisions upon the subject in New York, which adopt the 
 English rule.'^ In some States, it appears to be considered 
 
 any act, neglect, or default whatsoever of the pilot, master, or mariner. ' ' 
 It was held that the acceptance of the ticket with this condition relieved 
 the defendant from liability for injury or loss of life to a passenger, occa- 
 sioned by the negligence of the defendant's servants. Haigh v. Royal 
 Mail Steam Packet Co., 52 L. J. (Q. B.) 640. The court apparently con- 
 sidered the case as falling within the rule which permits carriers of goods 
 to limit their liability by contract. See Simons v. Great Western Rail- 
 way, 18 C. B. 805; Londou & Northwestern Railway v. Dunham, 18 C. B. 
 826; White w. Great Western Railway, 2 C. B. (n. s.) 7; Pardington ». 
 South Wales R. R., 1 H. & N. 392 ; M'Manus v. Lancashire & Yorkshire 
 Railway, 4 H. & N". 327 ; Garton v. Bristol & Exeter Railway, 1 B. & S. 
 112 ; Peek v. North Staffordshire Railway, 10 H. L. Cas. 473; AUday v. 
 Great Western Railway, 5 6. & S. 903 ; Doolan v. Midland Railway, 2 
 App. Cas. 792; Manchester R. R. v. Brown, 8 App. Cas. 703; Great 
 Western Railway v. McCarthy, 12 App. Cas. 218 ; McCauley v. Furness 
 R. R., 42 L. J. (Q. B.) 4; Hall v. Northeastern R. R., 44 L. J. (Q. B.) 
 164; Dufi V. Great Northern R. R., 4 I. C. L. 178; Alexander v. Toronto 
 & N. R. R., 38 U. C. Q. B. 474. But it has been said: " The right which 
 a passenger has to be carried safely does not depend on his having made 
 a contract, but the fact of his being there creates a duty on the part of the 
 'carrier' to carry him safely." Per Blackburn, J., in Austin v. Great 
 Western R. R., L. R. 2 Q. B. 44'J. The English rule being as stated 
 above, it will be applied on suit brought in the United States upon a 
 transportation contract, made in Ireland, and so governed by the English 
 law. O'Reagan v. Cunard Steamship Co., 160 Mass. 356. 
 
 1 See Alton v. Midland Railway, 19 G. B. (^if. s.) 213. For a full dis- 
 cussion of this question see §§ 3, 5, 11, ante, notes and cases cited, and 
 also see § 115, and note, ante. 
 
 ^ Dorr V. New Jersey Steam Navigation Co., 11 N. Y. 485 ; Wells v. 
 New York Central R. R., 24 N. Y. 181; Perkins v. New York Central 
 R. R., 24 N. Y. 181 ; Bissel v. New York Central R. R. 25 N. Y. 442 ; 
 Poucher t>. New York Central R. R., 49 N. Y. 263 ; Magnin ». Dinsmore, 
 56 N. Y. 168; Mynard v. Syracuse, B. & N. Y. R. R., 71 N. Y. 180; 
 Canfield v. Baltimore & Ohio R. R., 93 N. Y. 532; Kinney v. New Jersey 
 Central R. R., 32 N. J. L. 407, 34 N. J. L. 513 ; Western & Atlantic R. R. 
 V. Bishop, 50 Ga. 465. Where a railroad agreed to haul the cars of A. 
 according to a special schedule of time, and at less than usual rates, A. 
 
§§ 116-117.] NEGLIGENCE OF DEFENDANT. 201 
 
 that although the carrier may limit his liability by contract, 
 yet he cannot avail himself of the benefit of his contract in 
 cases in which the injury complained of was the result of 
 " gross " negligence on his own part.^ It is apprehended 
 that the distinction taken in these cases is not sound, since 
 the best modern authority does not admit the existence of 
 degrees of negligence.^ 
 
 § 117. As to Persons transported gratuitously. — If a com- 
 mon carrier accepts a person as passenger, there being no 
 contract to relieve the carrier from the legal consequences of 
 his negligence in the case of accident, it is held generally, in 
 the United States, that the carrier remains liable for such 
 negligence, although the plaintiff was to be transported 
 gratuitously.^ For, having admitted the plaintiff to the 
 rights of a passenger, the defendant is not permitted to deny 
 that he owes to him the duty which, as carrying on a public 
 employment, he owes to all his passengers. But the question 
 whether a person transported gratuitously may, by a contract 
 with the carrier, waive his right to recover in an action 
 brought for injuries caused by the negligence of the carrier, 
 has been the subject of contrary opinion. In belialf of the 
 negative view of this question it is considered that, while the 
 
 agreeing at his own expense to load and unload the cars and to hold the 
 railroad harmless from all claims for damages to persons or property, 
 however accruing and to " assume all risk of accident from any cause ; " 
 and by reason of a defect in one of the cars, an employee of A. was in- 
 jured ; it was held that he could not recover for his injury as against the 
 railroad, since the railroad had no control over the condition of the cars, 
 and was not under obligation to haul them as a common carrier. Robert- 
 son V. Old Colony R. R., 156 Mass. 525. See Coup v. Wabash, St. L. & 
 Pacific R. R., 56 Mich. 111. 
 
 1 See Illinois Central R. R. ». Read, 37 111. 484 ; Indiana Central R. R. v. 
 Munday, 21 Ind. 48; Jacobus v. St. Paul & Chicago R. R., 20 Minn. 125. 
 
 2 See § 92, ante, notes and cases cited. 
 
 » Todd V. Old Colony & Fall River R. R., 8 Allen, 18; Common- 
 wealth V. Vermont & Mass. R. R., 108 Mass. 7; Files v. Boston & 
 Albany R. R., 149 Mass. 204; Philadelphia & Reading R. R. v. Derby, 
 14 How. 468; Steamboat New World v. King, 16 How. 469. It is held 
 generally that a person gratuitously conveyed may be a passenger. See 
 § 114, ante, and cases cited. 
 
202 PERSONAL INJURIES. [CHAP. IV. 
 
 relation of carrier and passenger is created by contract, the duty 
 of the carrier is essentially a public duty attached by law to 
 the employment,^ and not to be waived or dispensed with by 
 individual contracts ; that this duty requires that the carrier 
 should transport his passengers safely ; and that reasons of 
 public policy require that he shall be held to this duty as to 
 all persons transported in common by him, altogether irre- 
 spective of the question whether or not he transports them 
 gratuitously.^ The contrary view, that the defendant may 
 limit his liability by contract with the person carried gratui- 
 tously, would appear to rest principally upon the ground that 
 in conveying the plaintiff gratuitously the carrier, pro hac 
 vice and as to the plaintiff, puts off his public employment 
 and does something which the law does not exact of him. 
 The courts holding this view, however, appear to admit that 
 the relation of passenger and carrier exists between the par- 
 ties and that the carrier is bound by a public duty to trans- 
 port his passengers safely.* Although the ticket upon which 
 the passenger is travelling is, in form, a " free pass," contain- 
 ing a condition limiting the carrier's liability, this condition 
 will be invalid if the transportation is not, in fact, a matter of 
 charity or gratuity. Thus a railway corporation was held 
 liable for injuries caused by its negligence to a plaintiff who 
 was travelling upon a free ticket, containing a stipulation 
 against liability, for the common benefit of himself and the 
 defendant carrier.* The same rule is applied as to persons 
 travelling upon "drovers' passes" which permit persons in 
 
 1 See §§ 3, 5, 115, 116, ante. 
 
 " Gulf, Colorado & Santa Fe R. R. v. McGown, 65 Tex. 640 ; Penn- 
 sylvania R. R. V. Henderson, 51 Penn. St. 315; Flinn v. Philadelphia, 
 W. & B. R. R., 1 Houst. (Del.) 469 ; Cleveland & P. & A. R. R. v. Cur- 
 ran, 19 Ohio St. 1; Mobile & Ohio R. R. v. Hopkins, 41 Ala. 486. 
 
 » See Quiraby ». Boston & Maine R. R., 150 Mass. 365; Griswold ». 
 New York & New England R. R., 53 Conn. 371 ; and cases cited, § 116, 
 ante. It has been held that one who accepts and uses a free pass, as a 
 gratuity on condition that he will assume all risk of personal injury, 
 must be deemed to have accepted it on that condition whether he reads 
 it or not; and such an exemption of the carrier from liability is effectual, 
 and is not contrary to public policy. Rogers v. Kennebec Steamboat Co., 
 86 Maine, 261. 
 
 * Grand Trunk Railway v. Stevens, 95 U. S. 655. 
 
§ 117.] NEGLIGENCE OF DEFENDANT. 203 
 
 charge of cattle in course of shipment by rail to pass over 
 the lines of the defendant's road for the pui'pose of caring for 
 such cattle.^ An employee of a railroad was furnished by it 
 each month with a ticket entitling him to more rides than 
 were necessary for his traTcl to and from his work, and on 
 which he was at liberty to lide on his own private business. 
 A contract on the ticket provided that " The person accepting 
 this free ticket thereby and in consideration thereof assumes 
 all risk of accidents, and expressly agrees that the company 
 is not a common carrier in respect to him, and shall not be 
 liable under any circumstances, whether negligence of its 
 agents or otherwise, for injm-y to the person ... of the 
 passenger using this ticket." While travelling on his own 
 business, during his own time, he was killed by the gross 
 negligence of the company's servant. In the statutory action 
 by his administrator, for damages, it was held that the in- 
 testate was not, at the time he was killed, an employee of the 
 defendant ; that he was a passenger, and that the contract on 
 the ticket, although the statute was a penal one, did not 
 release the defendant from liabihty. It was considered, in 
 this case, that the agreement of the defendant to transport 
 the plaintiff's intestate to and from his home furnished part 
 of the consideration which induced him to enter the employ- 
 ment of the defendant.^ A civil engineer of a railway com- 
 pany, travelUng on its business on a free pass and in a 
 sleeping car, is not a passenger but an employee.^ 
 
 1 New York Central R. R. v. Locfcwood, 17 Wall. 357, 376; Delaware 
 L. & W. R. R. I . Ashley, 28 U. S. App. 375. 
 
 « Doyle V. Fitchburg R. R., 162 Mass. 66; 166 Mass. 492. Tn an 
 action against a railroad by an employee injured by defendant's negli- 
 gence it appeared that defendant gave the plaintiff a pass from Tren- 
 ton, X. J., to Philadelphia and another from Philadelphia to Elmira, N. Y., 
 by the terms of which latter he assumed all risks of accident. The 
 injury occurred at Harrisburg, Penn. By the law of New Jersey a con- 
 tract by which the carrier is relieved from liability in consideration of 
 free transportation is valid, but the contrary rule is held in Pennsylvania. 
 It was held that the contract was governed by the law of Pennsylvania 
 and that the plaintiff was entitled to recover ; since when a contract is 
 made in one State to be performed in another, its validity and effect are 
 to be determined by the laws of the State where it is to be performed. 
 Burnett r. Penn. R. R., 176 Penn. St. 45. 
 
 • Texas & Pacific R. R. v. Smith, 30 U. S. App. 176. 
 
204 PERSONAL INJURIES. [CHAP. IV. 
 
 (b) Rule of Lidbility applied to Railroads. 
 
 § 118. Measure of Liability, generaUy. — Applying the general 
 rules already stated ^ to cases in which railroads are passenger- 
 carriers for hire, it may be said that such carriers are bound 
 to exercise the utmost care in providing proper and suitable 
 cars, engines, tracks, and structures, and agents, in order to 
 prevent such accidents as human foresight can guard against ; 
 that is, such accidents as are not inevitable. This duty 
 exists in respect of the ordinary and usual appliances and 
 means used in carrying on the business. The carrier is not 
 bound to use every possible precaution which human ingenuity 
 may suggest to prevent accident, since that might be incon- 
 sistent with the cheapness and speed which are among the 
 principal advantages attending railroad transportation, but the 
 care required is to be exercised in relation to such matters, 
 and in such directions, as are appropriate to the business 
 which the carrier has undertaken, so as to afford reasonable 
 security to the passenger against injury; and in these mat- 
 ters the importance of the interests involved requires that the 
 carrier be held to a proportionate, that is, to the utmost, care 
 and diligence.^ It is the duty of a steam or electric railroad 
 corporation to use ordinary care to avail itself of new inven- 
 tions and improvements which will contribute to the safety of 
 passengers ; but it is not bound to have in use the latest im- 
 provements which ingenuity has devised for that purpose.^ A 
 railroad is bound to the same degree of care whether it trans- 
 ports its passengers on a passenger or on a freight train.* 
 As to private railways, operated in the special business of 
 their owners, the special rules of obligation which are applied 
 to common carriers obviously do not apply ^ The obligation 
 of the railroad to furnish suitable means and appliances, and 
 
 1 See § 113, ante. 
 
 = Warren v. Fitehburg R. R., 8 AUen, 227. 
 
 ' Richmond, «eo. Railway v. Garthright, 92 Va. 627 ; Witsell v. W. 
 Ashville, &o. Railway, 122 N. C. 902. 
 
 < Dillingham u. Wood, 8 Tex. Civ. App. 71. 
 6 Wade V. Lutcher, &o. Co., 41 U. S. App. 45. 
 
§§ 118-119.] NEGLIGENCE OP DEPENDANT. 205 
 
 to employ copipetent servants, subsists as well towards its 
 employees as towards its passengers.' 
 
 § 119. Blastrations of the Principle stated. — A railroad is 
 bound so to construct and equip its road tliat it may reason- 
 ably be expected to %vithstand any strain to whicb railroads 
 are customarily exposed ; in other words, in the selection of 
 plans and materials for its road-beds, bridges, and appliances, 
 it is bound to use such care as will seem suflScient to ordi- 
 narily prudent men understanding the circumstances and ne- 
 cessities of the case. While the mere fact that an accident is 
 so exti-aordinary that it could not reasonably have been antici- 
 pated ^ will not relieve the carrier from responsibility for its 
 negligence, it is not, as matter of law, bound to anticipate and 
 provide for extraordinary accidents. Thus it was held that 
 the defendant railroad was not bound so to construct a bridge 
 that it should resist the extraordinary shock of a train which 
 had left the track while running at ordinary speed.* But it 
 
 1 Greenleaf v. Illinois Central R. R., 29 Iowa, li. See §§ 192 et seq., 
 post. In Louisville & Xashville R. R. v. Ritter, 85 Ey. 36S, it was said 
 that the railroad is liable in damages for the slightest negligence against 
 which human prudence, diligence, or skill can guard, and by which a 
 passenger is injured; but the rule stated in this case is not in accordance 
 with the tenor of the' modern authorities. See § 113, ante, notes and 
 cases cited; Burns r. Chicago, Milwaukee & St. Paul Railway, 69 Iowa, 
 450. Where a passenger while stepping from the car of an elevated rail- 
 road to the station platform was injured by the sudden starting of the 
 car, and it appeared that, in order to steady himself when the train 
 stopped, he had caught hold of the bell-cord and thereby given the signal 
 to start the train, it was held that the question whether there was any 
 vice in the system of communicating signals and whether the method of 
 fixing the bell-rope was the best method, and so, whether the defendant 
 was negligent, was for the jury. Ferry i'. Manhattan Railway, 118 N. 
 Y. 497. It is said that a raili-oad company has a right to refuse to move 
 its passenger trains if they become overcrowded, and it is unable to pre- 
 vent such overcrowding ; but if it undertakes to move cars so overcrowded, 
 it is bound to use additional care commensurate with the danger. Lynn 
 V. South. Pac. Co., 103 Cal. 7. 
 
 » Doyle p. Chicago, St. P. & K. R. R., 77 Iowa, 607, and see ISfaher 
 V. Manhattan Railway, 53 Hun, 506; Chicago, Milwaukee & St. P. R. R. 
 0. Harper, 128 111. 384; Libby v. Maine Central R. R., 85 Maine, 34. 
 
 » Pershing v. Chicago, Burlington & Quincy R. R., 71 Iowa, 561. In 
 this case, it was said that the railroad was bound to the degree of care 
 
206 PERSONAL INJURIES. [CHAP. IT. 
 
 ■was held that a railroad corporation was responsible for the 
 insufficiency of its culverts to carry off the water in case of an 
 overflow, which, although extraordinary, might have been an- 
 ticipated; as where it appeared that similar overflows had 
 occurred at the same place in 1833, 1843, and 1852, and that 
 the injuries for which the suit was brought happened in 
 1885.' It is held that the mere fact of the existence of a 
 spread or bent rail in the track of a railroad is not, as matter 
 of law, conclusive of negligence.^ So it was considered to be 
 a question of fact whether a railroad corporation was negli- 
 gent in not putting up a " hunter," or other obstruction, at the 
 end of a spur track, by reason of the absence of which an 
 accident had occurred.^ In the selection of its trainmen, a 
 railroad is bound to exercise a care proportional to the respon- 
 sibility which the nature of their employment will impose 
 upon them, the road being charged with a like responsibility, 
 in this respect, as to its passengers and servants.* But it was 
 held error to charge that, in handling its locomotives, the 
 
 which is used by the most carefully managed roads under like circum- 
 stances ; but it would seem that this rule does not establish a criterion of 
 responsibility which can safely be applied to all cases, since, on the one 
 hand a road most carefully managed, generally, may be negligent in 
 some one particular, and on the other hand may take precautions in some 
 special direction for the prevention of accidents which reasonable men 
 may deem to be unnecessary. It seems that the only safe rule to apply 
 in this as in other cases of alleged negligence is to inquire whether the 
 precautions taken by the defendant to avoid accident were, within the 
 judgment of reasonable men, suflScient; although, in determining the ques- 
 tion as to what precautions were necessary, the practice of other railroads 
 to prevent the occurrence of similar accidents may be admissible. 
 
 1 Gulf, Colorado & Santa Fe R. R. v. Pomeroy, 67 Tex. 498. In "Withers 
 V. North Kent Railway, 27 L. J. (n. 8.) Exch. 417, Pollock, C. B., said 
 that the defendant was not bound to have his line constructed so as to 
 meet extraordinary floods, but see Ruck v. Williams, 27 L. J. (n. s.) 
 Exch. 857; Great Western Railway v. Braid, 1 Moore, P. C. (n. s.) 101. 
 
 ^ Arkansas M. R. R. v. Canman, 52 Ark. 517. 
 
 » Shaw V. New York & N. E. R. R., 150 Mass. 182. 
 
 * Gorman v. Minneapolis & St. Louis R. R., 78 Iowa, 509. In this 
 case it was held that it was not negligence for a railroad company to 
 employ an inexperienced youth twenty-two years old, as a brakeman ; it 
 not appearing that he was physically or mentally incompetent for the 
 employment. 
 
§§ 119-119 a.] NEGLIGENCE OP DEFENDANT. 207 
 
 road was bound to use such skill and care as the " most pru- 
 dent " are accustomed to use in like circumstances.^ It was 
 held that a statute providing that railroad companies should 
 fence their tracks and be liable for injuries to live stock occa- 
 sioned by their failure so to do, was for the protection of per- 
 sons on the trains as well as of animals on the tracks.^ It 
 may be said generally, that, as to notice of defects existing in 
 its road-bed or buildings, like rules apply between the corpo- 
 ration and its officers, as between municipal corporations and 
 their officers, in regard to the existence of defects in high- 
 ways ;^ that is, knowledge of the existence of the defect on the 
 part of the officer or agent whose business it is to guard 
 against or to look out for it, is the knowledge of the corpora- 
 tion.* A street railway company is bound to use reasonable ' 
 care in the selection of horses for its cars." Whether the 
 overcrowding of railway cars is negligence, is held to be a 
 question of fact in the particular case.® The only obligation 
 to which a railway company can be held in respect to the 
 communication by its telegraph of a sudden and temporary 
 change in the running time of trains is that of reasonable 
 care in transmitting the necessary orders.^ 
 
 § 119 a. Duty of Railroad to the Public, generally. — So far 
 as its relations to the general public are concerned, the duty 
 of a railroad is that of ordinary and reasonable care, and it 
 will not be responsible for injuries which result from incidents 
 which are inseparable from the ordinary operation of its trains ; 
 as for the consequences of noise, vibration or smoke ; ^ or for 
 the escape of steam from its locomotives,^ or for the noise of 
 
 1 Gulf, C. & S. F. R. R. V. Hodges, 76 Tex. 60; Houston & T. C. 
 R. R. V. Brin, 77 Tex. 174. 
 
 2 Donegan v. Erhardt, 119 N. Y. 468. 
 8 See §§ 183-185, post. 
 
 * Krogg V. Atlanta & W. P. R. R., 77 Ga. 202. 
 
 « Noble V. St. Joseph, &c. Railway, 98 Mich. 249. 
 
 6 Graham v. Manhattan Co., 149 N. Y. 336. 
 
 ' Baltimore & Ohio R. R. v. Camp, 31 U. S. App. 213. 
 
 8 Favor v. Boston & Lowell R. R., 114 Mass. 350 ; Lamb v. Old Colony 
 R. R., 140 Mass. 79. 
 
 » Howard v. Union Freight R. R., 156 Mass. 159; Phil., W. & B. R. R. 
 V. Burkhardt, 83 Md. 516; Cahoon v. Chic. & N. Y. R. R., 85 Wis. 570. 
 
208 PERSONAL INJURIES. [CHAP. IV. 
 
 its whistles, although these are being used for the purpose of 
 signalling for its own convenience, and not for the purpose of 
 warning the public of danger, as required by law, such use 
 being, under the circumstances, careful and prudent ; but it is 
 not for the railroad to establish a signal, however reasonable 
 and proper, in itself, and to say that it may be given under 
 any and all circumstances, regardless of consequences.^ The 
 noise made by the starting of an electric car, if usual and 
 necessary, is an incident to the operation of the car, and the 
 person or corporation running the car is not responsible for 
 the injurious results to travellers.^ It is held to be the duty 
 of a railroad company to use reasonable diligence in the con- 
 duct and management of its trains so that persons on the pub- 
 lic highway shall not be injured by negligent acts performed 
 by any one on its trains ; either a passenger, or an employee 
 of the road, acting outside of the scope of his employment, if 
 such acts are customary or reasonably to be anticipated by 
 the company. Thus where the company permitted its' work- 
 men, going home on its trains, to carry with them sticks of 
 refuse lumber for firewood and to throw these from the train 
 at a convenient place ; and the plaintiff, an employee of the 
 railroad, was injured by a stick so thrown, the company was 
 held liable.^ It is not, generally, negligence on the part of a 
 railroad to omit to fence its tracks at a point where there is 
 no public crossing.* It is negligence to run detached cars 
 
 1 Flynn v. Boston & Albany R. R., 169 Mass. 305 ; Barron «. Chic, 
 St. P. &c. R. R., 89 Wis. 79. See Hill v. Maine Cent. R. R., 55 Maine, 
 438; Boothbay v. Boston & Maine R. R., 90 Maine, 313; Louisville & N. 
 R. R. V. Schmidt, 147 Ind. 638 ; Southern R. R. v. Torian, 95 Va. 453; 
 Wabash R. R. v. Speer, 156 111. 244; Heininger v. Great Northern R. R,, 
 59 Minn. 458 ; Mitchell v. Railroad, 100 Tenn. 329. As to the duties of 
 railroads at highway crossings, see § 120, post. 
 
 2 McDonald v. Toledo, &c. Railway, 43 U. S. App. 79. 
 
 8 Fletcher v. Bait. & Ohio R. R., 168 U. S. 135. The court distin- 
 guish the case of Walton v. N. T. Central Sleeping Car Co., 139 Mass. 
 556, where the injury was caused by a bundle thrown from the defendant's 
 car by its servant ; but it did not appear that such acts were customary, 
 or that any officer of the company on the train knew of the act. 
 
 * Tillotson V. Tex. & Pao. R. R., 44 La. Ann. 95. The mere piling of 
 dirt or clay on or near a street railway track, for use in ballasting the 
 track where it had been undermined by a washout, is not negligence. 
 
§§ 119 a-120.] NEGLIGENCE OP DEFENDANT. 209 
 
 along the streets of a city.^ In some States, the rights of way, 
 respectively, of street cars, and pedestrians, and drivers of ordi- 
 nary vehicles, are attempted to be regulated by statute. In 
 the absence of statutory regulation, it has been held that the 
 rights of street railways in streets are in some respects supe- 
 rior to those of pedestrians ; but that the railway is bound to 
 use reasonable care to avoid injuring pedestrians.^ Elsewhere, 
 it is held that street cars have not rights paramount to those 
 of ordinary vehicles.** 
 
 § 120. Duty of Railroad as, to Crossings. — Subject to the 
 rule that the railroad is bound to run its trains over public 
 crossings at a rate of speed to be proportionate to the circum- 
 stances of danger, the company has an unrestricted right to 
 the use of its road-bed, and is not responsible to strangei's 
 for the accidental results of such proper user.* Thus the 
 railroad is not liable for injuries which result from the fright- 
 ening of horses by the noise of its trains, these being operated 
 in a lawful manner and without negligence or malice.* It is 
 obvious that a railroad has the right, essential to the carrying 
 on of its business, to back its locomotives, shift and couple 
 cars, &c., although this may be dangerous, and require special 
 care on the part of the servants of the railroad.* The rail- 
 road has a right to maintain necessary and proper buildings 
 and structures about its crossings, and it is held that the 
 
 Noble V. St. Joseph, &c. Railway, 98 Mich. 249. But where a railroad 
 placed a large pile of ashes and cinders on a street, whereby a child fell 
 under a moving train, it was held to be negligent. Chicago & Alton 
 R. R. V. Nelson, 153 HI. 89. 
 
 1 Galveston, H. & San Antonio R. R. v. Lewis, 5 Tex. Civ. App. 638. 
 
 » See Winter v. Federal St. Railway, 153 Penn. St. 26 ; Gilmore v. 
 Federal St. Railway, 153 Penn. St. 31 ; Gibbons v. Wilkes-Barre Railway, 
 155 Penn. St. 279 ; Lott v. Frankford, &c. R. R., 159 Penn. St. 471. 
 
 » Lake Roland Co. v. McKewen, 80 Md. 598. 
 
 * § 119 a, ante; Ryan v. Pennsylvania R. R., 132 Penn. St. 304; Gulf, 
 C. & S. F. R. R. V. Hodges, 76 Tex. 90. It was held that the failure of 
 an engineer to bring his train to a full stop at a street crossing, on dis- 
 covering that an approaching team was frightened, was negligence. 
 Houston & T. C. R. R. v. Carson, 66 Tex. 345. 
 
 « Batishill v. Humphreys, 64 Mich. 494; Sullivan v. Penn. R. R., 7 
 4.0. Rep. 177 (Penn. 1887). 
 
 14 
 
210 PEESONAL INJURIES. [CHAP. IV. 
 
 mere existence of trees, fences, and other objects upon the 
 right of way of a railway corporation, does not constitute 
 negligence, although the existence of such objects may have 
 a bearing to determine the degree of care to be exercised by 
 the railway and by persons using the crossing.^ It is obvious 
 that a railway crossing may be established by prescription, 
 and where the corporation has, for a long time, permitted the 
 public to pass habitually over its track at a certain point, 
 without objection, it is boimd to exercise care in the manage- 
 ment of its trains at such a crossing, proportionate to the 
 probable danger to persons using it.^ And it seems that if 
 the corporation has reasonable grounds to be aware of the 
 user of its track at a particular point, even by trespassers, it 
 is bound to exercise a proportionate care at that point ; ^ and 
 
 1 Pence v. Chicago, Kock Island & Pac. R. R., 79 Iowa, 389. But see 
 apparently contra, Chicago & E. I. R. R. v. Tilton, 29 111. App. 95. In 
 Reed v. Chicago, St. Paul, M. & O. R. R., 74 Iowa, 185, it was held 
 negligence for a railway corporation to obstruct a street crossing unneces- 
 sarily so as to deprive travellers approaching it of a full view of the 
 street. It is not negligence to leave a box-car in sight of but not en- 
 croaching upon the road, nor, unless the car be left for an unreasonable 
 time, is the road responsihle if a stranger moves the car upon the road, 
 whereby injury results. Cleveland, C. C. & I. R. R. v. Wynant, 114 
 Ind. 525. It is negligent to cut a car loose and permit it to run across 
 a public street unguarded so as to endanger the safety of travellers pass- 
 ing along the street, O'Connor v. Missouri Pacific R. R., 94 Mo. 150; 
 or to back a car over a crossing without stationing a lookout to give 
 warning to travellers. Duame v. Chicago & Northwestern R. R., 72 
 Wis. 523; Cleveland, C. C. & St. L. R. R.,u. Keely, 138 Ind. 600. See 
 § 123, post. 
 
 " Harriman v. Pittsburg, C. & St. L. R. R., 45 Ohio St. 11 ; Taylor v. 
 Delaware & H. Canal Co., 113 Penn. St. 162 ; Byrne v. New York Cent. 
 & H. R. R. R., 104 N. Y. 362; Guggenheim v. Lake Shore & M. S. R. 
 R., 66 Mich. 150; Philadelphia, W. & B. R. R. v. Hogeland, 66 Md. 149. 
 The fact that there is a private way across a railroad by reservation does 
 not prevent the public from gaining a right to use the way by prescrip- 
 tion. Sprow V. Boston & Albany R. R., 163 Mass. 330. 
 
 ^ Cassida v. Oregon Railway & Nav. Co, 14 Oregon, 551; Whalen ». 
 Chicago & N. W. R. R., 75 Wis. 654; Bergneau v. St. Louis, I. M. & 
 So. R. R., 88 Mo. 678. But it has been held that a statute requiring 
 signals at crossings cannot be invoked by trespasser on the track near 
 the crossing. Blankenship v. Galveston, H. & San A. R. R., 15 Tex. Civ. 
 App. 82. Where the track of a railway corporation was crossed, at grade. 
 
§ 120.] NEGLIGENCE OP DEPENDANT. 211 
 
 SO as to persons negligently using a crossing.^ In the ab- 
 sence of a municipal ordinance imposing special duties on 
 a railroad company within corporate limits, the obligation of 
 the company, in respect of care at crossings, is not changed 
 when its train crosses the corporate line, as the company is 
 bound in any case to a measure of care commensurate to the 
 character of the crossing and the amount of travel over it.^ 
 So, making a flying switch over a frequented street, in the 
 night-time, is negligence ; ^ and so is running a train at a 
 rate of forty miles an hour over a crossing in a town, where 
 
 by a track belon^g to a private person, throngh the negligence of 
 ■whose servants a collision occurred at the crossing, it was held that the 
 fact that the defendant permitted the existence of the crossing did not 
 raise against it any presnmption of negligence. Bunting v. Pennsylvania 
 R. R., 118 Penn. St. 204. Where two raUroads cross at grade, it is 
 negligence for one of them to leave an uncoupled car standing so as 
 to project over the crossing. Albert v. Sweet, 116 N. Y. 363. So it is 
 negligent unnecessarily to stop a car upon the crossing of another rail- 
 road, although it is done for the defendant's convenience. Lanning v. 
 Chicago, B. & Q. R. R., 68 Iowa, 502. Under Rev. Sts. Indiana, 
 §§3904, 8905, imposing upon railway companies the duty of keeping their 
 tracks in repair at crossings, it was held that it was negligence per se, to 
 neglect this duty, and that a company neglecting it was liable for in- 
 juries resulting from such neglect, although, in fact, it was ignorant of 
 the particular defect which caused the injury complained of. Indiana, 
 B. & W. R. R. V. Bamhart, 114 Ind. 382. See, also, Western & 
 Atlantic R. R. v. Young, 81 6a. 397. Bat see § 112, ante, notes and 
 cases cited. 
 
 1 Union Pacific R. R. v. Mertes, 35 Neb. 204. 
 
 * Atchison, Topeka & Santa Fe R. R. v. McClurg, 19 U. S. App. 346. 
 A contrary rule seems to be held in Newhard v. Penn. R. R., 153 Penn. 
 St. 417, in which case it was held that the right of a traveller to use a 
 highway crossing is subordinate to the right of the railroad, and, in the 
 absence of statutory regulations requiring it, a railway train which has 
 given proper signals and warnings of its approach, is not required to 
 slow up at the crossing. It has been held that street railway cars have a 
 right of way at crossings. Thompson v. Buffalo R. R., 143 N. Y. 196. 
 But an ordinance giving a right of way generally to street cars, gives 
 the driver of a car no right to ignore the presence of other vehicles on 
 the street, especially at crossings. Thoresen v. La Crosse City Railway, 
 87 Wis. 597. 
 
 « Alabama Great So. R. R. v. Anderson, 109 Ala. 299; Watson v. 
 Minn. Street Railway, 53 Minn. 551. 
 
212 PERSONAL INJURIES, [CHAP. TV. 
 
 the view is obstructed.^ The servants of the railroad have a 
 right to assume that a person approaching a crossing will 
 exercise ordinary care for his own safety.^ 
 
 § 121. Degree of Care at Stations and the ApproacbeB thereto. 
 — The general rule that the carrier is bound to the exercise of 
 such care and diligence as is reasonably possible to protect 
 the passenger from injuries which human foresight can antici- 
 pate and prevent, applies so long as the relation of passenger 
 and carrier subsists ; and it is the duty of the railroad to keep 
 its stations, platforms, yards, and the approaches thereto, over 
 which passengers must pass, in order to reach their trains, in 
 a reasonably safe condition.^ But it is evident that the degree 
 of foresight, and so the degree of care, required must depend 
 in every case upon the gravity of the consequences which may 
 be expected to follow the lack of care, and a railroad corpo- 
 ration may not be bound to exercise the same degree of care 
 towards a passenger passing through its station grounds to the 
 highway, or from the highway through the grounds and 
 station to the cars, that would be required from it as to a 
 passenger actually being conveyed in its cars ; since far 
 graver consequences might be expected to follow a lack of 
 extreme care in the latter than in the former case. And 
 it is said that a railroad corporation would not act reasonably 
 if it did not exercise greater care in equipping and running its 
 trains than in its oversight over its station and grounds.* It 
 is apprehended that, as regards its stations and the approaches 
 thereto, the railroad is affected with the same obligations 
 towards its passengers as the owner or occupant of land or 
 buildings, generally, as to those who come upon the premises 
 by his express or implied invitation.^ Where a railroad com- 
 pany so locates its station as to require persons approaching 
 it to cross several tracks which are kept smooth for pedes- 
 trians and without any well defined crossings ; this is tanta- 
 
 1 Pratt V. Chic, R. I. & Pac. R. R., 98 Iowa, 563, and see St. Louis 
 Con. R. R. V. O'Hara, 151 111. 580. 
 
 " Graf V. Chio. & Northwestern R. R., 94 Mich. 579. 
 
 * FuUerton v. Fordyoe, 144 Mo. 519. 
 
 * Moreland v. Boston & Providence R. R., 141 Mass. 31. 
 
 * See §§ 64 et seq., ante. 
 
§§ 120-121.J NEGLIGENCE OP DEPENDANT. 218 
 
 mouat to an invitation to cross at any point near the station, 
 and persons so crossing to take passage on a train are not 
 trespassers.^ In the absence of knowledge that only one safe 
 path has been provided by a railroad for leaving a passenger 
 station, and of any notice or direction to take a particular 
 path, a passenger may take any path which appears to be 
 designed and used as a way to the street, and, as to him, the 
 railroad is bound to see that such path is reasonably safe.^ 
 It is the duty of a railway company to keep its stations, plat- 
 forms, and the approaches thereto, reasonably safe and well- 
 lighted, with a careful regard for the safety of passengers.^ 
 It is negligence for a railroad to allow an accumulation of ice 
 from its station roof to remain on the platform.* Generally, it 
 is negligence on the part of a railway company to run a train 
 rapidly through or past a station where another train is dis- 
 charging and receiving passengers, or without warning.^ It 
 is the duty of a railroad to afford passengers sufficient oppor- 
 tunity safely to alight at its stations, and to enter and leave 
 its cars.® So it is the duty of a street railway company to 
 
 1 Louisville, N. O. & T. B. R t7. Hirsch, 69 Miss. 126. 
 
 ^ Cazneau v. Fitchburg K. R., 161 Mass. 355. A railroad is not bound 
 to place fences or screens along its tracks in its station grounds to pre- 
 vent the frightening of horses approaching the station. Flagg v. Chicago, 
 &c. Railway, 96 Mich. 30. 
 
 « Lucas V. Penn. Co., 120 Ind. 583; LouisvOle, N. A. &c. R. R. ». 
 Treadway, 143 Ind. 689; Penn. Co. v. Marion, 123 Ind. 415; Praeger o. 
 Bristol & E. R. R., 24 L. T. (n. s.) 105; Union Pacific R. R. ». Sue, 25 
 Neb. 772 ; Hiatt v. Des Moines, N. & W. R. R., 96 Iowa, 167. 
 
 * Waterbury e. Chic, M. & St. P. R. R. 104 Iowa, 32. 
 
 B Baltimore & Ohio R. R. v. State, 81 Md. 371. See Pumell v. 
 Raleigh & G. R. R., 122 N. C. 832 ; Sanchez v. San Antonio & Ar. Pass. 
 R. R., 3 Tex. Civ. App. 89. It was held that to detach the rear part and 
 allow it to follow the forward portion of a train, at a short interval, past 
 a station in the dark, without warning or signal, was such negligence as 
 would make the company liable for an injury thereby caused to one who 
 was attempting to cross the track at the station, although he was, tech- 
 nically, a trespasser. Conley v. Cincinnati, N. O. & T. P. R. R., 89 Ky. 
 
 402. 
 
 • Chicago & Alton R. R. v. Amol, 144 111. 261 ; Madden v. Mo. 
 Pacific R. R., 50 Mo. App. 666 ; Hays ». Wabash R. R., 51 Mo. App. 438 ; 
 Barth v. Kansas City El. R. R., 142 Mo. App. 535; Lamb v. Los Angeles 
 Terminal Railway, 103 Cal. 473. The failure to delay a train to enable a 
 
214 PEESONAL INJURIES. [CHAP. IT. 
 
 stop its cars at suitable places for passengers to leave them, 
 and to make stops long enough to enable passengers to alight 
 safely.* 
 
 § 122. Hate of Speed of Trains. — In the absence of special 
 circumstances which make the act negligent, a railway com- 
 
 belated passenger to get on board, the train having made a proper stop at 
 the station, is not negligence for -which the railroad will be liable to such 
 a passenger if he is injured in attempting to board the train after it has 
 started, it not appearing that the defendant's servants induced or invited 
 the plaintiff to make the attempt. Faulitsch v. New York Central & H. 
 K. R. E. 102 N. Y. 280. It is held to be a circumstance bearing on the 
 question of the carrier's negligence that as a train is about to stop within 
 the limits of a station, but not to deliver passengers, a public announce- 
 ment of the station is made, with a direction to " change " for another 
 station, and no counter warning is given to the passengers not to leave the 
 train. Floythrup v. Boston & Maiue R. K., 163 Mass. 152. In Pennsyl- 
 vania, it is provided that when any person is injured while lawfully on or 
 about the premises, cars, etc., of a railroad company of which he is not an 
 employee, the company's liability shall be only such as would exist if the 
 person injured were its employee. Act April 4, 1868 (P. L. 58). See 
 Stone V. Pennsylvania R. R., 132 Penn. St. 206 ; Price v. Pennsylvania R. 
 R., 113 U. S. 218. It has been held that a railroad is not bound to guard 
 against an exodus of passengers at a railway crossing, at which it does not 
 discharge passengers, merely because its conductor has announced the name 
 of the next station after making the last preceding stop. Minock v. 
 Detroit, G. H. & M. R. R., 97 Mich. 425. Where a passenger lavrfuUy 
 on the station platform of the defendant railroad was struck and injured 
 by a mailbag, thrown from a postal car attached to a passing train, by an 
 employee of the United States, this being the customary method of dis- 
 charging mails at the station, and the defendant having noticed this and 
 not having taken precautions to prevent injury, it was held that the fact 
 that the postal clerk was not in defendant's employ did not relieve it from 
 liability, and that negligence on its part might be inferred. Carpenter ». 
 Boston Si. Albany R. R., 97 N. Y. 494. See also Toledo, W. & W. R. R. 
 V. Maine, 67 111. 298, and, apparently contra, Pennsylvania R. R. v. Russ, 
 57 N. J. L. 126. In Massachusetts, under St. 1894, c. 469, § 3, it was 
 held that if a passenger, lawfully upon the platform of a railway station, 
 is struck and injured by a package thrown by an expressman from an 
 express car attached to a train, in which the passenger is about taking 
 passage, he cannot maintain an action against the railway company for 
 his injury. Winship v. N. Y., N. H. k H. R. R., 170 Mass. 464. 
 
 1 Jagger v. Peoples Street Railway, 180 Penn. St. 436. See North 
 Chicago Street R. R. v. Cook, 145 111. 551 ; Baldwin v. Fairhaven R. R., 
 68 Conn. 567. 
 
§§ 121-122.] NEGLIGENCE OF DEFENDANT. 215 
 
 pany has the right to run its trains at such a rate of speed as 
 it deems proper, and it is held that, except when approaching 
 the crossings of public streets or highways, the engineer is 
 not bound to look out for persons on the track,^ since the 
 corporation is not bound to anticipate the presence of tres- 
 passers upon its track. It is obvious that the rule will be 
 different when the company has reason to know that persons 
 are on its track at some particular point, for a lawful purpose.^ 
 It is ordinarily for the jury to determine, under the circum- 
 stances of the case, whether the road is negligent in running 
 a train at a particular rate of speed.^ But, whether prohib- 
 ited by statute or not, it would seem to be, as matter of law, 
 negligent to run a train at a high rate of speed over a public 
 crossing without warning,* or through a frequented street in 
 a city or village.* So the running of a train, at a high rate 
 of speed, at an unusual hour, and without warning, past an- 
 
 1 Farve v. Loniaville & Nashville R. R., 42 Fed. Rep. 441; Grand 
 Rapids & Indiana R. R. v. Huntley, 38 Mich. 537 ; New York, P. & N. 
 R. R. 17. Eellam, 83 Va. 851. Where a train made a "flying switch" 
 and the car switched struck and injured the plaintiff, who had stepped 
 from the main track upon the switch track in order to avoid the main 
 line train, it was held that the defendant was negligent, although the 
 defendant's servants saw the plaintiff, and tried to attract his attention 
 to the switched car, which struck the plaintiff before the brake upon it 
 could be set. Louisville & N. R. R. v. 'Coleman, 86 Ky. 556. See Louis- 
 ville & Nashville R. R. ». ConifE, 90 Ky. 560. But it was held that as to 
 an employee, plaintLS, the fact of the defendant's making a "flying 
 switch " w^as evidence of negligence, merely, for the jury to consider. 
 Chicago & Alton R. R. v. Kelly, 28 111. App. 655. 
 
 2 Chicago & Northwestern R. R. v. Dunleavy, 27 111. App. 438, 129 
 ni. 132. 
 
 » Thompson v. New York Cent. & H. R. R. R., 110 N. Y. 636 ; Bittner 
 V. Crosstown Railway, 153 N. Y. 76 ; Meloy v. Chicago & Northwestern 
 R. R , 77 Iowa, 743; Bollinger v. St. Paul & D. R. R, 36 Minn. 418; 
 Heath v. Stewart, 90 Wis. 418; Chic, P. & St. L. R. R. v. Lewis, 145 
 m. 67; Chic. & Alton R. R. v. Sanders, 154 HI. 531; Chic, B. & Q. R. 
 R. V. Anderson, 38 Neb. 112; Chesapeake & Ohio R. R. v. Cleaves, 93 
 Va. 189 ; Louisville & N. R. R. v. Woods, 105 Ala. 
 
 * St. Louis, V. & T. H. R. R. v. Faitz, 23 HI. App. 498. And it has 
 been so held as to a street railway car. Evers v. Philadelphia £1. Trac- 
 tion Co., 176 Penn. St. 376. 
 
 6 ReiUy v. Hannibal & St. Jo. R. R., 94 Mo. 600. 
 
216 PERSONAL INJURIES. [CHAP, IV. 
 
 other train standing at a platform and discharging passengers, 
 who, in order to reach their destination, must cross the track 
 of the moving train, is, as matter of law, negligence.^ The 
 rate of speed at which trains may be run over crossings, or 
 through populous places, as cities or villages, is generally 
 made a subject of statute or municipal regulation, and it has 
 been held that the running of a train at a rate prohibited by 
 statute is, per se, negligence ; ^ but it is apprehended that such 
 a rule is not to be justified on principle, and that the fact of 
 the violation of the statute in such cases is evidence of negli- 
 gence, merely.* On the other hand, the fact that a statute 
 fixes a maximum rate of speed for railway trains within the 
 limits of towns and cities does not justify the railroad in 
 maintaining that rate of speed when the exercise of reason- 
 able care requires that a train be run more slowly.* 
 
 § 123. Of the Obligation to give Warnings and Signals. — It is 
 perhaps difficult to reconcile with each other all the decided 
 cases upon the question whether the defendant railroad has 
 been negligent in failing to give proper signals or warnings of 
 the approach of its trains ; but it may be said, generally, that 
 the ordinary rule is to be applied in such cases,^ and that when, 
 under all the circumstances in any case, it is evident, beyond 
 any fair doubt by intelligent men, and upon uncontroverted 
 testimony, that the defendant railroad was negligent in failing 
 to give a proper signal or warning, the court should so instruct 
 the jury ; but when the testimony leaves this matter in doubt, 
 it is to be left to the jury as being a question of fact.* It is 
 
 1 Robostelli v. New York, N. H. & H. K. R., 33 Fed. Eep. 796 ; Tubbs 
 V. Mich. Cent. K. R., 107 Mich. 108. See § 121. la many jurisdictions, 
 the statute requires that trains shall come to a stop on approaching a 
 station at which a standing train is discharging passengers. 
 
 2 See Keim v. Union Railway & Transit Co., 92 Mo. 314, and cases 
 cited, § 112, ante, 
 
 8 Clark V. Boston & Maine R. R., 64 N. H. 323 ; § 112, ante. 
 
 * Louisville, N. O. & T. E. R. v. French, 69 Miss. 121 ; Alabama & 
 Vicksburg R. R. v. Phillips, 70 Miss. 14. 
 
 6 See §§ 03, 111, ante. 
 
 ° Thus it lias been held under certain circumstances that the failure to 
 oring the bell or sound the whistle at a crossing was not, as matter of law, 
 
§§ 122-123.] NEGLIGENCE OP DEPENDANT. 217 
 
 obvious that the railroad is bound to a greater degree of care 
 in the management of its trains in a frequented than it is in 
 
 negligent. Walker v. Boston & Maine R. R., 64 N. H. 414 ; International 
 & G. N. R. R. V. McDonald, 75 Tex. 41; Houston & T. C. R. R. v. Brin, 
 77 Tex. 174. Although such timely warning of the approach of a street 
 car must be given as will enable travellers to avoid danger from it, Cons. 
 Traction Co. v. Haight, 59 N. J. L. 577 ; yet this duty may be modified 
 by circumstances. Phil. Traction Co. v. Lightcap, 17 U. S. App. 605. It 
 has been held that a person walking on a railroad track, whether a tres- 
 passer or licensee, has a right to suppose that the usual and proper warn- 
 ings and signals of the approach of a train will be given. Stanley v. 
 Durham & N. R. R., 120 N. C. 514; McLamb v. Wilmington & W. R. R. 
 122 N. C. 862. It has been held that it was a question for the jury whether 
 the presence of a watchman, or flagman, at a crossing was a necessary pre- 
 caution for the safety of the public, Bolinger v. St. Paul & D. R. R., 36 
 Minn. 418; Chicago & I. R. R ». Lane, 30 LI. App. 437, 130 111. 116, and 
 see Union Pacific R. R. v. Henry, 36 Kan. 565 ; BattishUl v. Humphreys, 
 64 Mich. 494; and on the other hand, that when it was manifestly negli- 
 gent for the defendant railroad to omit to so station a flagman, it was error 
 to leave the question of negligence to the jury. Crawford v. Delaware, 
 L. & W. R. R., 55 N. Y. S. C. 50. In Johnson v. Baltimore & Potomac 
 R. R., 6 Mackey, 232, Missouri Pacific R. R. v. Pierce, 33 Kan. 61, and 
 Clark V. Missouri Pacific R. R., 35 Kan. 350, it was held to be negligence, 
 per se, to fail to give timely and reasonable notice of the approach of a 
 railroad train to a station. In Carrington v. Louisville & Nashville R. R., 
 88 Ala. 472, it was held that, in the absence of a statutory requirement, 
 it was not negligence to fail to sound a whistle on the approach of a train 
 to villages or collections of houses near its track. When the testimony is 
 conflicting as to whether or not, in any case, the required signals were 
 given, the question is for the jury. Reed v. Chicago, St. Paul, M. & O. 
 R. R., 74 Iowa, 188; Wall v. Delaware, L. & W. R. R., 54 Hun, 454; State 
 V. Union R. R., 70 Md. 69; Atchison, Topeka & S. F. R. R. v. Morgan, 
 43 Kan. 1; Murray ». l^Iissouri Pacific R. R., 101 Mo. 136. But it is error 
 to leave to the jury to determine what signals should be used, and to find 
 that tlie failure to use such signals is negligent. HoUender v. New York 
 Cent. & H. R. R. R., 14 Daly, 219, 19 Abb. N. C. 18. The fact that sig^ 
 nals were not heard is generally competent as tending to show that these 
 were not given ; although the weight of such testimony may well be less 
 than that of positive testimony to the fact that such signals were given. 
 Menard v. Boston & Maine R. R., 150 Mass. 386 ; Hubbard v. Boston & 
 Albany R. R., 159 Mass. 320; Perkins v. Buffalo, R. & P. R. R., 10 N. 
 Y. S. Sup. N. E. Rep. 356 (1890) ; Murray v. Missouri Pacific R. R., 101 
 Mo. 136; Lee v. Chicago, R. I. & Pac. R. R., 80 Iowa, 172. And it has 
 been held, further, that witnesses might be permitted to testify that they 
 could have heard a whistle if it had been sounded. Chicago & Alton R. 
 
218 PERSONAL INJUBIES. [OHAP. IV. 
 
 an unfrequented locality, and so ought to signal the approach 
 of its trains at street crossings within the limits of populous 
 villages, or cities ; ' although there be no statute or ordinance 
 imposing this duty. And so it is held that although it may 
 not be negligence for a train to be behind time, yet if it be be- 
 hind time, it is the duty of the company to give such addi- 
 tional warnings as may be necessary for the safety of persons 
 using a crossing.* So when the company has placed cars or 
 other obstructions so as to cut off the view of trains ap- 
 proaching a crossing, it is its duty to give such additional 
 warning.^ It is negligence to run a special train, at an un- 
 usual time and at an extraordinary rate of speed, across a 
 public highway without signalling its approach ; * or to back 
 a train, without stationing a lookout at its rear end, across a 
 thoroughfare, in a village, even at a moderate rate of speed, 
 there being no flagman at the crossing,^ or to propel a car 
 forward through a town, at its own impetus, without any one 
 to control it or give warning of its approach.® Persons who 
 habitually use a crossing have a right to rely upon the cus- 
 tomary signals being given, the use of these being known to 
 them. Gates at crossings are for the purpose of warning peo- 
 ple of the approach of trains and to serve as effectual barriers 
 to keep the public from the track.^ And if a railroad com- 
 ' pany establishes gates at a crossing, and advertises the public 
 of that fact, its failure to close such gates on the approach of 
 a train is negligence.* The railroad is bound to an equal duty 
 
 R. V. Dillon, 24 111. App. 203, 123 111. 570. For cases in which it has 
 been held negligence to run a locomotive without a headlight, see Daniels 
 V. Staten Island Rapid Transit R. R., 7 N. Y. Sup. N. E. Rep. 725 
 (1890); Becke v. Missouri Pacific R. R., 102 Mo. 544. 
 1 Norfolk & Western R. R. v. Surge, 84 Va. 63. 
 
 * Guggenheim v. Lake Shore & Mich. So R. R., 66 Mich. 150; Phila- 
 delphia, W. & B. R. R. V. Hogeland, 66 Md. 149. 
 
 « Roberts v. Alexandria & F. R. K., 83 Va. 312. 
 
 * Cooper V. Lake Shore & Mich. So. R. R., 66 Mich. 261. 
 
 6 Shelby v. Cincinnati, N. O. & T. P. R. R., 3 S. W. Rep. 157 (Ky. 
 1887) ; Finney v. Mo., K. & T. R. R., 71 Mo. App. 577. 
 
 « Chicago, Burlington & Q. R. R. v. Perkins, 125 111. 127. 
 
 ' Baltimore &. Ohio R. R. v. Anderson, 43 U. S. App. 673. 
 
 8 State V. Boston & Maine R. R., 80 Maine, 430; Wilson v. New York, 
 N. II. & H. R. R., 18 R. I. 491; and see Brown v. Rome, Watertown, & 
 Ogdensburg R. R., 1 N. Y. Sup. N. E. Rep. 286 (1888). 
 
§ 123.J NEGLIGENCE OF DEFENDANT. 219 
 
 whether the crossing he over a public highway, or whether it 
 be a private crossing, the customary user of which is known 
 to and permitted by the defendant.^ It is often held that, in 
 the absence of a statutory requirement, the omission on the 
 part of a railroad to ring bells, blow whistles or display a flag 
 at a crossing, is not, as matter of law, negligence ; ^ and 
 there is a line of cases which hold that the failure of the de- 
 fendant railroad to give the signals required by a statute or 
 ordinance is, fer se, actionable negligence,^ but it is believed 
 these cases are not to be justified upon legal principle,* the 
 sound rule being that the omission of the statutory signals, 
 must be in order to make the defendant liable, the proximate 
 cause of the injury ; and that plaintiff must himself have been 
 in the exercise of due care.^ And it is to be observed that 
 the mere giving of the signals prescribed by law in any case, 
 will not relieve the defendant if it be negligent in other re- 
 spects.* Ordinarily, it is a question of fact whether the warn- 
 
 1 Nash V. New York Cent. & H. R. R. R., 1 N. Y. Sup. N. E. Rep. 
 269 (1888); Whalen v. Chicago & Northwestern R. R., 75 Wis. 654; West- 
 away v. Chic, St. P. & C. R. R., 56 Minn. 580 ; Bergman v. St. Louis, I. 
 Mt. & So. R. R., 88 Mo. 678 ; Bryne v. New York Cent & H. R. R. R., 
 104 N. Y. 362. For a case in which it was held hy the majority of the 
 court that the circumstances, and the surroundings of the crossing were 
 such as not to require the raikoad to give signals on approaching it, see 
 PhUadelphia, W. & B. R. R. v. Fronk, 67 Md. 339. 
 
 « Vandewater J7. N. Y. & N. E. R. R., 135 N. Y. 583; Dundon v. N. 
 Y., N. H. & H. R. R., 67 Conn. 266; Northern Central R. R. ». Medaiiy, 
 86 Md. 169 ; Omaha & R. V. R. R. v. Brady, 39 Neb. 27 ; but see Gihnore 
 V. Cape Fear & V. R. R., 115 N. C. 657. 
 
 » Atchison, Topeka & S. F. R. R. v. Townsend, 39 Kan. 115 ; Brown 
 V. Griffin, 71 Tex. 654 ; Nuzum v. Pittsburg, C. & St. L. R. R., 30 W. 
 Va. 228; Petrie v. Columbia & G. R. R., 29 S. C. 303; Bitner w. Utah 
 Central R. R., 4 Utah, 502; Green v. Eastern Railway, 52 Minn. 79; 
 McNown V. Wabash R. R., 55 Mo. App. 585; Littlejohn v. Rich. & D. 
 R. R., 45 S. C. 181 ; Wragge v. S. C. & Geo. R. R., 47 S. C. 105; Chic, R. 
 I. & Pac. R. R. V. Caulfield, 27 U. S. App. 358 ; Bittle v. Camden & A. 
 R. R., 55 N. J. L. 615. 
 
 * See § 112, ante. 
 
 s Horn V. Bait. & Ohio R. R., 54 Fed. Rep. 301, 4 C. C. A. 346. See 
 Sala V. Chic, R. I. & Pac. R. R., 85 Iowa, 678. 
 
 » Thompson v. New York Cent. & H. R. R. R., 110 N. Y. 636 ; Chicago, 
 R. I. & Pac. R. R. V. Caulfield, 27 U. S. App. 358; Louisville & Nashville 
 R. R. V. Coleman, 86 Ey. 556. 
 
220 PERSONAL INJURIES. [CHAP. 17, 
 
 ings required by the statute to protect travellers at railway 
 crossings are sufficient, or whether additional safeguards are 
 necessary. But in order to find the railroad negligent in not 
 furnishing additional safeguards, there must be circumstances, 
 as the configuration of the land, the neighboring structures, 
 the number of trains, the amount of travel on the highway, 
 which make the statutory signals inadequate properly to warn 
 the public of danger.^ 
 
 § 124. Invitation to Passenger, express or implied, Effect of. — 
 If a passenger directs his course, whether entering or leaving 
 a train, by the direction, or express or implied invitation, of 
 the corporation, and by reason of a defect or imperfection in 
 the structures over which he passes, which might have been 
 guarded against by the exercise of due care on the part of the 
 corporation, he is injured, the corporation will be responsible 
 ■for such injury. Nor will the liability be removed by the fact 
 that the route which the passenger takes is not the most 
 direct way to the highway, nor by the fact that the passenger 
 intends to pursue a course over the railroad which he has no 
 right to take. For the passenger is not a trespasser or mere 
 licensee at the time and place when and where he is injured, 
 merely because he intends, afterwards, to become either one 
 or the other. Thus a railroad was held liable for injuries 
 occasioned to a passenger by the unsafe condition of the plat- 
 form at a station along which he was walking after alighting 
 from a train for the purpose of leaving a station to go to his 
 home ; the platform being fitted and intended for the use of 
 passengers, and so arranged as to invite them to use it, 
 although the railroad was not under obligation to furnish such 
 a platform, and the nearest egress to the highway was in an- 
 other direction ; and the passenger intended after leaving the 
 platform to cross the railroad at a place where he had no 
 right to cross.2 It is to be observed that the fact that the 
 
 1 Hubbard v. Boston & Albany R. R., 162 Mass. 132. 
 
 ' Keefe v. Boston & Albany R. R., 142 Mass. 251. In this case, 
 Field, J., said: " The well known usages of railroad companies and of 
 the public make it impossible to hold as matter of law, that it was the 
 duty of the plaintiff, immediately on leaving the cars at the station, to 
 take the shortest practicable course to the nearest highway, and that, if 
 
§§ 123-124. j NEGLIGENCE OF DEPENDANT. 221 
 
 passenger does the act which results in his injury at the invi- 
 tation of the defendant's servants, does not relieve him from 
 the necessity of proving due care on his own part. Thus 
 where a railroad placed a movable bench at the foot of its 
 car-steps on which passengers leaving the car might alight, 
 and it was in an unsafe condition, which fact was known to 
 the plaintiff, who, nevertheless, alighted upon it and was in- 
 jured, it was held that she was negligent.^ Where one was 
 injured by alighting from a railway train while in motion as 
 it was approaching a station in the night time, it was con- 
 tended that the action of the brakeman in calling out the 
 name of the station and fastening back the door of the car 
 before the train had stopped was an invitation to the plaintiff 
 to alight. But it was held that this was clearly not an in- 
 vitation to alight from a moving train, but from a train 
 which had come to a stop, and, under the circumstances of 
 the case, it was held that the plaintiff was guilty of con- 
 tributory negligence.^ When the act is done by invitation, 
 
 she did not, she became a trespasser or licensee only. The defendant was 
 bound to keep in safe condition for its passengers all that part of the sta- 
 tions and platforms where passengers were expressly or impliedly invited 
 to go; and was bound by its servants and agents to exercise due care 
 towards passengers using its station and platforms by invitation. . . . The 
 intention in her mind of crossing the railroad where she had no right to 
 cross had not become an act, and she might never have acted in accordance 
 with that intention. She was still a passenger leaving the station of the 
 railroad, and may have been walking upon a part of the platform intended 
 for the use of passengers." It is apprehended that, in the United States, 
 the stopping of a train and the announcement of a trainman of the name 
 of a station will be taken to be an invitation to the passenger to alight, 
 see Columbus & I. C. R. R. v. Farrell, 31 Tnd. 408; but it is held in Eng- 
 land that it is a question for the jury whether the calling out of the name 
 of a station will amount to such an invitation. Whittaker v. Manchester 
 & S. R. R., 5 C. P. 464 n., and see Cockle v. London & Southeastern Rail- 
 way, 5 C. P. 457. Where the defendant's servant, a brakeman, invited 
 and endeavored to assist the plaintiff, a boy of fifteen, to jump upon a 
 train moving at the rate of fifteen mUes an hour, and the boy, in conse- 
 quence, was injured, it was held that the defendant was responsible. 
 Western & Atlantic R. R. v. Wilson,. 71 Ga. 22, and see Philadelphia 
 Traction Co. v. Orbann, 119 Penn. St. 37. 
 
 1 McDermott v. Chie. & Northwestern R. R., 82 Wis. 246. 
 
 2 England v. Boston & Maine R. R., 153 Mass. 490. See also Lewis 
 
222 PERSONAL INJURIES. [CHAP. IV. 
 
 and results in injury, the question of the plaintiff's negli- 
 gence is generally one of fact.^ 
 
 SECTION III. 
 
 OP OWNERS OR KEEPERS OP ANIMALS. 
 
 § 125. General Rules appUed. — A person having an animal 
 under his custody and control is bound, whatever may be the 
 character and disposition of the animal, to exercise that 
 measure of care and watchfulness in regard to it which an 
 ordinarily prudent man ought to exercise in similar circum- 
 stances. Thus it is held to be negligence in the driver of 
 horses to fail to look to see where he is going while driving 
 at a trot.2 So it was held negligence to leave a high-spirited 
 horse unhitched in the thickly populated part of a city ; ^ and 
 so to leave a horse and wagon, unguarded, at night, on the 
 track of an electric railway ; * and it is said to be negligent, 
 under any circumstances, as matter of law, to leave horses oi 
 mules untied in the public streets.^ But it is apprehended 
 that the character of the place, as being frequented or unfre- 
 quented, and the disposition of the animal must, in such. 
 
 V. London, Chatham & Dover Railway, L. R. 9 Q. B. 66; Bridges v. 
 North London Railway, L. R. 6 Q. B. 377 ; Chaffee v. Boston & Lowell 
 R. R., 104 Mass. 108 ; Wheelock v. Boston & Albany R. R., 105 Mass. 
 203 ; Robostelli v. New York, N. H. & H. R. R., 33 Fed. Rep. 796. 
 
 1 See Northern Pao. R. R. v. Egeland, 12 U. S. App, 271; Hartzig v. 
 Lehigh Valley R. R., 154 Penn. St. 364; Victor v. Penn. R. R., 164 Penn. 
 St. 195; Deery v. Camden & A. R. R., 163 Penn. St. 403; Dennis v. 
 Pittsburg & C. R R., 165 Penn. St. 624. 
 
 " Moebns v. Hermann, 108 N. Y. 349, 352 ; Gulick v. Clark, 51 Mo. 
 App. 26. A failure to take up ordinary precautions in driving across 
 a street railway track is negligence. Graff v. Detroit, Sec. Railway, 109 
 Mich. 77. 
 
 » Griffiths V. Cliff, 4 Utah, 462, and see Hill v. Scott, 38 Mo. App. 
 370; Hudson v. Houser, 123 Md. 309; MoMahon v. Kelly, 9 N. Y. Sup. 
 N. E. Rep. 544 (1890); Higgins v. Wilmington City Railway, 1 Marv. 
 (Del.) 305. See Murdock v. N. Y., &c. Express Co., 167 Mass. 549. 
 
 * Gilmore v. Federal St. Railway Co., 153 Penn. St. 31. See Kestner 
 V. P. & B. Traction Co., 158 Penn. St. 422. 
 
 s Bowen v. Flanagan, 84 Va. 313. See Phillips v. Dewald, 79 Ga. 732. 
 
§§ 124-126.] NEGLIGENCE OP DEPENDANT. 223 
 
 cases, be circumstances which bear upon the question of 
 negligence, so that the question must often be one of fact for 
 the determination of the jury.^ 
 
 § 126. Owner's Responsibility as affected by Knowledge. — 
 In a case in the Supreme Court of the United States, after 
 much consideration, the following rules were laid down as 
 fixing the responsibility in different cases for injuries inflicted 
 by animals, so far as such responsibility is affected by notice 
 on part of the owner of the nature or character of the 
 animal ; ^ 1. The owner or keeper of a domestic animal is 
 not liable, on the ground of negligence, for injury inflicted by 
 such animal, unless it be proved that he knew that the animal 
 was accustomed to do mischief.^ 2. If the animal be ferae 
 naturae, the owner, without notice, is liable if the animal get 
 loose and do harm.* 3. If a domestic animal is accustomed 
 to injure people, the owner must be affected with notice of 
 the animal's vicious propensity in order to charge him.^ But 
 
 1 Doyle V. Detroit Omnibus Co., 105 Mich. 195. 
 
 ' Congress & Empire Spring Co. v. Edgar, 99 U. S. 645. 
 
 » See Rex v. Huggins, 2 Ld. Raym. 1574 ; Fleming v. Orr, 29 E. L. & 
 E. 16; Vrooman v. Lawyer, 13 Johns. 339; Buxondin v. Sharp, 2 Salk. 
 662; Earl v. Van Alstiue, 8 Barb. 630; Cockerham v. Mxon, 11 Ired. 
 269; Dearth v. Baker, 22 Wis. 73; Smith v. Causey, 22 Ala. 568. In 
 Earl V. Van AJstine, supra, Selden, J., said : " I apprehend that if a 
 person chooses to keep a domestic animal, as a dog, which is naturally 
 savage and dangerous, he does so at his perU, and that he would be liable 
 for any injury done by such dog without evidence that he had ever done 
 mischief before." See also expressions by Abbot, J., in Judge v. Cox, 1 
 Stark. 285, and by Lord Ellenborough in Hartley v. Harriman, 1 B. & 
 Aid. 620. 
 
 * See Worth v. Gilling, L. R. 2 C. P. 3; May v. Burdett, 9 Q. B. 101 ; 
 Beso22si V. Harris, 1 F. & F. 92 ; Scribner v. Kelly, 38 Barb. 14. It is 
 said that the substance of the rule is that one who keeps lions, tigers, or 
 other fierce and dangerous animals is liable, at all events, for any injury 
 they may do, and that the words ferae naturae add nothing of any value 
 to the rule, but rather tend to mislead, as they are descriptive of many 
 animals that are not ferocious or dangerous. Per Selden, J., in Earl v. 
 Van Alstine, 8 Barb. 630, 633. Inducing the plaintiff to ride a horse 
 which the defendant knows to be vicious, is actionable. Lane v. Minn. 
 State Agric. Soc, 62 Minn. 175. 
 
 6 Mason v. Keeling, 1 Ld. Raymond, 606, 12 Mod. 332; Rex v. Hug- 
 gins, 2 Ld. Raymond, 1574; Jackson v. Smithson, 13 M. & W. 561; Cox 
 
224 PERSONAL INJURIES. [OHAP. IT. 
 
 if he has notice of such propensity, he will be liable without 
 reference to any specific negligence in the matter of custody. "^ 
 4. In the case of domestic animals, as oxen or horses, right- 
 fully in the place where the injury is inflicted, scienter must 
 be alleged and proved in order to charge the owner.^ In 
 some cases it may appear that the animal causing the injury 
 is of a disposition which, in one set of circumstances, may 
 render it dangerous, while, ordinarily, it could not be pre- 
 sumed to be so. In such cases it may become an essential 
 question whether the defendant, under the circumstances of 
 the particular case, exercised a due care and custody of the 
 animal.' The disposition of the animal is shown by its 
 general behavior antecedent to the injury,* and it is suffi- 
 cient to charge the owner with negligence if his knowledge 
 of the animal's disposition was such as to convince an ordina- 
 rily prudent man that it was dangerous.* It is not neces- 
 
 V. Burbridge, 13 C. B. (n. s.) 430 ; Hudson v. Roberts, 6 Exch. 699 ; 
 Lyons v. Merrick, 106 Mass. 71; Van Leuven v. Lyke, 1 N. Y. 575; 
 Moynahan v. Wheeler, 117 N. Y. 285; State v. Donahue, 49 N. J. L. 
 548; Murphy v. Preston, 5 Mackey, 514 ; Cox v. Murphy, 82 Ga. 623. 
 
 1 See Smith v. Pelch, 2 Str. 1264; Blackman v. Simmons, 3 C. & P. 
 138; Saroh v. Blackburn,. 4 C. & P. 297; Kittredge v. Elliott, 16 N. H. 
 77; Arnold v. Norton, 25 Conn. 92; Shirfey «. Bartley, 4 Sneed, 58; 
 McCaskill v. Elliott, 5 Strob. 190; Fairchild v. Bentley, 30 Barb. 147; 
 Kelley v. Tilton, 2 Abb. Ct. App. Cas. 495 ; Lawrence v. Mangianti, 41 
 Cat. 138; Meibus v. Dodge, 38 Wis. 300; Koney ». Ward, 2 Daly, 285; 
 36 How. Pr. 255 ; Earheart v. Youngblood, 27 Penn. St. 337 ; Stumps v. 
 Kelly, 22 111. 140 ; Popplewell v. Pierce, 10 Cush. 509. In such cases, 
 the jury may presume that the defendant was possessed of common 
 knowledge in regard to the propensities of the animal. Linnehau v. 
 Sampson, 126 Mass. 506. 
 
 ^ Van Leuven v. Lyke, 1 N. Y. 515 ; Decker v. Gammon, 44 Maine, 
 322; Dearth v. Baker, 22 Wis. 73; Jackson v. Smithson, 15 M. & W. 
 563 ; Card v. Case, 5 C. B. 632 ; Hudson v. Roberts, 6 Exch. 697; Cox v. 
 Burbridge, 13 C. B. (sr. s.) 430. 
 
 ' Linnehan v. Sampson, 126 Mass. 506. See also Hewes v. McNamara, 
 106 Mass. 281 ; Clowdis v. Plume & Irrigation Co., 118 Cal. 315. 
 
 * Kennon v. Gilmer, 131 U. S. 22. See also Chamberlain v, Enfield, 
 43 N. H. 356 ; Todd v. Rowley, 8 Allen, 51; Maggi v. Cutts, 123 Mass. 
 535. 
 
 6 Kittredge v. Elliott, 16 N. H. 77; Godeau v. Blood, 52 Vt. 251; 
 Reynolds w. Hussey, 64 N. H. 64; Buckley v. Leonard, 4 Denio, 500; 
 
§ 126.] NEGLIGENCE OP DEPENDANT. 225 
 
 sary, in order to fix the owner's liability, to show that the 
 animal has inflicted similar injuries before.^ The question of 
 knowledge is ordinarily one of fact for the jury to determine.^ 
 Generally, in order to charge the owner, it is sufficient to 
 show that his servants or agents had notice of the vicious dis- 
 position of the animal.* There is a class of cases in which 
 actual knowledge on the part of the defendant is not neces- 
 sary in order to charge the defendant, even although the 
 animal, through the viciousness of which the accident hap- 
 pened, is a domestic animal. Thus if a person furnishes an 
 animal for the use of another for hire, he making it his busi- 
 ness to let such anftnals, it is his duty to furnish a suitable 
 animal, and, in an action brought for a breach of such duty, 
 it is not necessary to show that the defendant knew, in fact, 
 that the animal was vicious, in order to support the action. 
 So if a horse is hired of a livery-stable keeper for a special 
 purpose known to him, it is a part of the contract that the 
 horse shall be suitable for such purpose ; and if he furnishes 
 one which is in fact unsuitable, and thereby injury is caused 
 to the plaintiff, it is no defence to the action that the defend- 
 ant did not know that the horse was unsuitable or vicious.* 
 In these cases the plaintiff's action is, in effect, founded upon 
 a breach of an implied warranty ; and, in cases in which the 
 defendant was guilty of actual negligence, as in letting a 
 horse which he knew to be vicious, it is obvious that the 
 
 Rider v. White, 65 N. T. 54; Keightlinger v. Egan, 65 111. 235; Judge v. 
 Cox, 1 Stark. 285; M'Caskill v. Elliott, 5 Strobh. 596; Applebee v. 
 Percy, L. R. 9 C. P. 647. 
 
 1 See cases cited ante, and Brioe v. Baner, 108 N. T. 428. 
 
 2 Godeau v. Blood, 52 Vt. 251 ; Buckley v. Leonard, 4 Denio, 500. In 
 this case it was held, where the owner of a dog which had bitten other 
 persons had notice of the fact, and afterwards suffered the dog to be at 
 large, thatit was not an answer to an action for the injury to the plaintiff, 
 that the dog was generally inoffensive. So in Smith v. Pelch, 2 Strange, 
 1264, Lee, C. J., said: "If a dog has once bit a man, and the owner, 
 having notice thereof, keeps the dog, and lets him go about or lie at his 
 door, an action will lie against him at the suit of a person who is bit, 
 though it happened by such person treading on the dog's toes; for it was 
 owing to his not hanging the dog on the first notice." 
 
 » Applebee v. Percy, L. K. 9 C. P. 647 ; 43 L. J. C. P. 365. 
 * Home V. Meakin, 115 Mass. 326. 
 
 15 
 
226 PERSONAL INJTJEIES. [CHAP. IV. 
 
 plaintiff may rely either upon the breach of the warranty or 
 upon the actual negligence of the defendant, which negligence 
 is in dereliction of the general duty which the defendant owes 
 the public. In many States the statute provides for the re- 
 covery of damages, and in some cases of double damages, in 
 favor of persons who are injured by the bite of a dog. These 
 statutes generally enlarge the common-law liability, and 
 make it unnecessary to prove knowledge on the part of the 
 owner or keeper of the dog.^ 
 
 § 127. Mischievous Intent inferred in Certain Cases. — If the 
 owner or keeper of a ferocious animal, knowing its disposition, 
 keep it improperly guarded or suffer it to run at large upon 
 his own property, he will be answerable for injuries which it 
 may inflict upon a person being in the exercise of due care, 
 although such person be a trespasser ,2 the principle being that 
 such injuries fall within the class of those which the law 
 regards as wantonly or maliciously inflicted. And this is 
 so although the animal be accidentally irritated by the person 
 injured ; ^ and if the person injured be a child, it seems to be 
 immaterial that the act of the child in irritating the animal 
 was intentional, since the child is only held to the exercise of 
 that degree of care of which it is capable.* But if an adult 
 person willfully provokes the animal, and so is injured by it, 
 he cannot recover.^ Where the injured person incited or 
 interfered with a dog, and was bitten, it is necessary for 
 
 1 See Wolfe ». Chalker, 31 Conn. 121; Pressey v. Worth, 3 Allen, 191 ; 
 Galvin v. Parker, 154 Mass. 346. 
 
 2 The rule has often been applied in the case of ferocions dogs left to 
 ran at large by their owners. See Brook v. Copeland, 1 Esp. 203 ; Sareh 
 V. Blackburn, 4 C. & P. 297; Loomis v. Terry, 17 Wend. 496. In Marble 
 V. Ross, 124 Mass. 44, the same rule was held where a trespasser was 
 injured by a ferocious bull kept in the defendant's pasture. It has been 
 said that one keeping, knowingly, a vicious dog, which injures a traveller, 
 is guilty of "wilful negligence," and cannot set up plea of contributory 
 negligence on the part of the traveller. Jones v. Carey, 9 Houst. (Del.) 
 214. But see § 92, ante. 
 
 * As where the plaintiff accidentally trod upon a savage dog, which 
 thereupon bit him. Smith v. Pelch, 2 Str. 1264. 
 
 * Plumley i>. Birge, 124 Mass. 57. 
 
 6 Keightlinger v. Egan, 65 111. 235. 
 
§§ 126-128.] NEGLIGENCE OP DEPENDANT. 227 
 
 him, in order to recover damages, to show that he was not 
 guilty of negligence in so interfering; and this is so when 
 he interferes with dogs that are fighting, the question how far 
 his interference was justifiable being generally for the jury.^ 
 The ordinary rule which requires tlie plaintiff, in an action 
 for personal injuries, to allege and prove by positive testimony 
 negligence on the part of the defendant, does not apply in the 
 case of injuries committed by a vicious or dangerous animal 
 in the defendant's charge or control. For although the de- 
 fendant's liability in such cases rests, as in others, upon the 
 ground of negligence, this is implied from the mere keeping, 
 without actual notice', in cases where the dangerous disposi- 
 tion and habits are universal among the species, as in the 
 case of wild and savage beasts. Where the animal is in fact 
 vicious or dangerous, though not of an untamed or vicious 
 species, it is necessary to allege and prove such disposition, 
 and that the owner knew it.^ But in neither case, is it neces- 
 sary to allege or prove negligence specially, this being an 
 inference of law from the fact of the keeping.^ 
 
 § 128. Person -vrbo keeps the Animal, althongll not its Owner, 
 Uable. — Since the liability for injuries committed by animals 
 rests wholly upon the ground of actual or assumed negligence, 
 the actual ownership of the animal is immaterial, and the 
 person in the place of the owner and who by contract with 
 him has the exclusive custody and control of the animal, 
 is liable for the injuries which he carelessly permits it to 
 commit.* So one who wilfully harbors an animal, although 
 without the owner's knowledge or consent, thereby- becomes 
 
 1 Matteson v. Strong, 159 Mass. 497; Raymond v. Hodgson, 161 Mass. 
 184. 
 
 2 Lyons V. Merrick, 105 Mass. 71. 
 
 8 Popplewell V. Pierce, 10 Cush. 509. 
 
 * Lyons V. Merrick, 105 Mass. 71. It is held that a statute (Pub. St. 
 Mass. 0. 102, § 93) providing that every owner " or " keeper of a dog shall 
 be liable to any one injured thereby, does not create a joint or several 
 liability ; and a person who brings an action against the owner, but fails 
 to collect his judgment on account of the latter's insolvency, cannot 
 afterwards bring an action against the keeper, Galvia v. Parker, 154 
 Mass. 346. 
 
228 PERSONAL INJURIES. [CHAP, 17. 
 
 responsible for injuries which he carelessly permits it to 
 inflict.^ But the rule will be otherwise if he has tried un- 
 successfully to keep the animal off his premises.^ Generally 
 if one permits his servants or agents to keep an animal upon 
 his premises, he will himself be responsible as a keeper of 
 such animal ; and if he knows that it is so kept his assent to 
 the keeping will be implied.' 
 
 SEdTION IV. 
 
 OP PERSONS HAVING THE CUSTODY AND CONTROL OP DANGEROUS 
 ARTICLES, ETC. ; PHYSICIANS. 
 
 § 129. Generally : Intrusting Dangerous Articles to Others. — 
 When one has in his possession or control dangerous articles, 
 substances, or agents, he is bound to a measure of care in 
 respect of them which shall be proportionate to the danger 
 which may result to others from the misuse or careless hand- 
 ling of them. Thus the care of persons blasting rocks must 
 be such as ordinarily prudent persons would use, under the 
 circumstances ; * as, in populous or frequented places, to cover 
 the blast and so restrict the effect of the explosion, if practi- 
 cable; or to give timely warning to all persons who may 
 appear to be exposed to danger from it.^ And, if one de- 
 livers and intrusts the keeping of combustibles, explosives, 
 loaded firearms, chemicals, or poisons, or other articles which 
 he knows, or ought to know, to be dangerous, to another who 
 manifestly is of insufi5cient capacity to be trusted with such 
 articles, the person so delivering them is responsible for 
 injuries thereby resulting, either to the person to whom 
 they are delivered, or to third parties. Thus, where one 
 
 1 Marsh v. Jones, 21 Vt. 378 ; Wilkinson ». Parrott, 32 Cal. 102 ; 
 Frammell ». Little, 16 Ind. 251. 
 
 " Smith V. Great Eastern Railway, L. R. 2 C. P. 4, 36 L. J. Q P. 22. 
 
 » Barrett v. Maiden & Melrose R. R., 3 Allen, 101. 
 
 * Mills V. Wilmington City Railway, 1 Marv. (DeL) 269. 
 
 6 Blackwell v. Lynchburg & D. R. R., Ill N. C. 151 ; Gates v. Latta, 
 117 N. C. 189. 
 
§§ 128-130.] NEGUGENCE OP DEFENDANT. 229 
 
 intrusted a loaded gun to a young maid-servant, and she care- 
 lessly shot the plaintiff with it, it was held to be a question 
 for the jury whether the defendant was negligent in intrusting 
 the gun to the servant under the circumstances, and that if 
 he was so negligent the plaintiff was entitled to recover.^ So, 
 where one sold and delivered gunpowder to a child eight years 
 old, and he, in ignorance of its effects, and using all the care 
 of which he was capable, exploded it and was injured by the 
 explosion, it was held that the injury was the natural and 
 proximate result of the defendant's negligence in selling a 
 dangerous article to a child who, probably, as the defendant 
 had reason to know, might ignorantly and innocently play 
 with it to his. own in jury .^ So if one knowingly intrusts dan- 
 gerous articles to be handled, sold, or distributed by an insane 
 person, he will be liable for injuries thus resulting to innocent 
 third parties.^ A contractor to furnish fireworks for a public 
 exhibition is responsible for injuries resulting from the care- 
 less setting off such fireworks by his servants.* 
 
 § 130. As to Dangerous Articles concealed : Rule Illustrated 
 in Case of Carriers. — If one delivers an article which he knows 
 to be dangerous, but the dangerous quality of which is con- 
 cealed or not apparent upon fair inspection, to another igno- 
 rant of danger, and injury thereby result to the person to 
 whom it is delivered, or his servant, being in the exercise of 
 due care ; the person delivering the article will be responsi- 
 ble for the injury. This liability does not rest upon privity of 
 contract between the parties, but upon the duty of every man 
 so to use his own property as not to injure the persons or prop- 
 
 1 Dixon V. Bell, Stark. E. 287, 5 M. & S. 198. 
 
 2 Carter v. Towne, 98 Mass. 567. The court say: "The case cannot be 
 distinguished in principle from that of a man who delivers a cup of poison 
 to an idiot or puts a razor into the hands of an infant in its cradle. The 
 want of any direct intention to injure does not excuse the defendants." 
 
 * Cole V. Nashville, 4 Sneed, 162. In this case, a municipal corpora- 
 tion, knowing a person to be insane, had licensed him to follow within its 
 limits the avocation of apothecary, and it was held that the corporation 
 was liable for injuries caused to a third person by an act of the insane 
 person done in the pursuit of his business. 
 
 * Colvin V. Peabody, 155 Mass. 104. 
 
230 PERSONAL INJtTEIBS. [CHAP. IV. 
 
 erty of others.^ And in such cases, the absence, on the part 
 of the defendant, of any direct intention to injure will not 
 excuse him if he has in fact injured the plaintiff, since every 
 man must be taken to contemplate the natural and probable 
 consequences of his own acts.^ And although, when a right 
 or duty is created wholly by contract, it can be enforced 
 only as between the contracting parties, yet when the de- 
 fendant has violated a duty imposed upon him by the com- 
 mon law, he is to be held liable for every injury which is the 
 natural and probable consequence of his negligent act. These 
 principles have often been applied where explosive or danger- 
 ous substances have been delivered to a common carrier for 
 transportation, without informing him of their nature.* Thus 
 one who delivered a carboy which he knew to contain nitric 
 acid to a carrier without informing him of the nature of its 
 contents, was held liable for an injury resulting by reason of 
 the leaking of the acid, to another carrier to whom the carboy 
 had been delivered by the first carrier, to be conveyed to its 
 destination in the ordinary course of business.^ It is held, as 
 matter of law, to be the duty of the sender of a dangerous 
 article by a common carrier, to give the carrier notice of its 
 character. This obligation rests upon the principle already 
 stated, and expressed in the maxim Sic utere tuo ut alienum 
 non laedas, not upon any contract express or implied.* 
 
 § 131. Further Illustrations of the Rules Stated ; Gas : Elec- 
 tricity. — The rule stated has been applied to a variety of 
 
 1 Carter v. Towne, 98 Mass. 567, and see §§ 3, 5, 6, ante, notes and 
 eases cited. 
 
 * Per Lord Ellenborough, in Townsend v. Wathen, 9 East, 280. 
 
 8 McDonald v. Snelling, 14 Allen, 290, 294, and see §§ 3, 5, 6, 11, 113, 
 116 et seq., ante, notes and cases cited. 
 
 * Williams v. East India Co., 3 East, 192; Brass v. Maitland, 6 El. & 
 Bl. 470 ; Mayor of Colchester «. Brooks, 7 Q. B. 377; Longmeid v. Hol- 
 liday, 6 Exch. 767 ; Grizzle v. Frost, 3 F. & P. 622 ; Vaughan v. Men- 
 love, 7 C. & P. 525 ; Carter v. Towne, 98 Mass. 567; McGrew v. Stone, 
 53 Penn. St. 436. 
 
 6 Farrant v. Barnes, 11 C. B. (n. s.) 533 ; Boston & Albany R. K. v. 
 Shanley, 107 Mass. 568, and see cases cited supra. 
 
 * See cases cited supra. 
 
§§ 180-131.] NEGLIGENCE OP DEFENDANT. 231 
 
 cases. An apothecary who sold a bottle of liquid, made up 
 of ingredients known only to himself, representing it to be fit 
 to be used in washing the hair, was held to be liable for an 
 injury resulting to the purchaser's wife from her using it for 
 that purpose.^ So, where the defendant, knowing that naphtha 
 was explosive and dangerous to life when used for illuminating 
 purposes, sold it to a retailer of fluids to be used for such 
 purposes, knowing that the latter intended to retail it in his 
 business : and a customer of the retailer, in ignorance of its 
 dangerous qualities, purchased a portion of it and attempted 
 to burn it in a lamp, when it exploded and injured him ; it 
 was held that the injured person had a good action against the 
 defendant at common law.* Where a druggist by mistake 
 put up in packages a quantity of deadly poison, and labelled 
 these with the name of a harmless medicine, and put the 
 packages upon the market, it was held that he was liable in 
 damages after one of the packages had passed through several 
 intervening hands to an apothecary, of whom the plaintiff 
 purchased it and administered it to his wife, who used it as a 
 
 1 George o. Skivington, L. R. 5 Exch. 1. 
 
 * Wellington v. Downer Kerosene Oil Co., 104 Mass. 64. It was held 
 in this case that there was no conclusive presumption that either the re- 
 tailer or his customer was aware of the danger of burning naphtha for 
 illuminating purposes. In many of the States the statute provides for 
 a civil or criminal action, or both, against sellers of naphtha or illumi- 
 nating oils below a specified standard of quality. Under such a stat- 
 ute, which provided that no person should sell naphtha or illuminating 
 oils below a prescribed standard, and that any person so selling " shall 
 ... be punished by fine or imprisonment, . . . and shall also be liable 
 ... to any person suffering damage from the explosion or ignition of 
 such oil . . . unlawfully sold or kept," and also providing for the in- 
 spection of illuminating oils; it was held, in a civil action brought 
 under the statute, that the defendant was liable, although an author- 
 ized inspector had certified that the oil sold conformed to the prescribed 
 standard or that the defendant was ignorant that, in fact, it did not 
 so conform. Hourigan v. Nowell, 110 Mass. 470. And the same rule 
 obtains in a criminal action under the statute. Commonwealth v. Went- 
 worth, 118 Mass. 441. But it seems that in the civil action at com- 
 mon law the scienter is of the gist of the action. See cases cited ante. 
 It is not negligence, per se, for one to keep a barrel of paint containing 
 benzine on his premises, for use in his business. Burke v. Parker, 107 
 Mich. 88. 
 
232 PERSONAL INJURIES. [CHAP. IV. 
 
 harmless medicine, being deceived by the false label.^ It is 
 the duty of corporations or individuals invested with the priv- 
 ilege of supplying the community with light for illuminating 
 purposes to exercise due care and diligence in keeping the 
 illuminating gas under their control, and preventing it from 
 escaping into habitations or frequented buildings.^ And this 
 duty exists although the occupant of the building be also 
 charged with the duty of giving notice of the escape of gas to 
 the gas-light company.* A gas company using a cracked or 
 defective pipe, after notice, is responsible for resulting injuries.* 
 If the company sends its servant to repair a leak in a pipe, it 
 being its duty so to do, and through the negligence of the 
 servant, as by lighting a match in proximity to the escaping 
 gas, injury ensue, the company is liable for the consequences.^ 
 If such agent is ignorant or incompetent, the company is 
 responsible ; and this, although the service to be performed 
 by the servant is, as to the plaintiff, gratuitous.^ And it 
 seems that where a gas company, upon discontinuing its 
 supply of gas to a customer, and removing the meter, fails so 
 to close the service-pipe as effectually to prevent the escape of 
 the gas into the building, it is guilty of negligence.^ So, 
 under the revised Civil Code of Louisiana, providing that one 
 shall be liable for damages occasioned by his negligence, im- 
 prudence, or want of skill," and providing for damages caused 
 
 1 Thomas v. Winchester, 2 Seld. 397, and see also Norton v. Sewall, 
 106 Mass. 143 ; Kafe v. Sommerbeck, 94 Iowa, 656. 
 
 ^ Emerson v. Lowell Gas Light Co., 8 Allen, 410. See Schmeer v. 
 Syracuse Gas Light Co., 147 N. Y. 529. 
 
 « See Hunt v. Lowell Gas Light Co., 1 Allen, 343. 
 
 * Richmond Gas Co. v. Baker, 146 Ind. 600. 
 
 6 See Consolidated Gas Co. v. Crocker, 82 Md. 113 ; Brady v. Consoli- 
 dated Gas Co., 85 Md. 637. 
 
 ' Lannen v. Albany Gas Light Co., 44 N. Y. 459', and see Holden v. 
 Liverpool Gas Co., 3 C. B. 1. 
 
 ' Lanigan v. New York Gas Light Co., 71 N. Y. 29. See also Smith 
 V. Boston Gas Light Co., 120 Mass. 316; Hemstead «. Phoenix Gas Light 
 & C. Co., 3 H. & C. 745; Devine v. Tarrytown, &o. Gas Li^t Co., 25 
 Hun, 231; Cleveland v. Spier, 16 C. B. (n. s.) 399; Blenkirow v. Great 
 Central Gas Cons. Co., 2 F. & F. 437; Mose v. Hastings, Stc. Gas Co., 4 
 F. & F. 325. 
 
 8 Art. 2316. 
 
§§ 131-132.] NEGLIGENCE OP DEFENDANT. 233 
 
 by things in the defendant's custody,^ it was held that an 
 electric company was liable for injuries occasioned by the 
 explosion of the brass tube containing the insulated wire of 
 an electric lighting system which was connected with an arc 
 current outside, the proximate cause of the accident being the 
 insufficiency of the fuse-catches to break the current when it 
 became too strong.^ If the authorized servant of a gas com- 
 pany informs the occupant of a room, in which the company 
 has been duly notified of the existence of a leak, that he has 
 remedied the leak and that the room is safe for occupancy, 
 the company is liable for an injury occurring to the plaintiff 
 immediately thereafter, by reason of such occupancy .^ 
 
 § 132. The Rule carefnlly limited. — But where an article in 
 itself harmless, and dangerous only when combined with an- 
 other, was sold by mistake, it was held that one who purchased 
 it of a third party and mixed it in a combination which caused 
 a dangerous explosion whereby he was injured, had no right 
 of action for the injury against the original vendor. For it 
 was not to be taken as a natural and probable consequence of 
 the first sale that an article ordinarily innocuous would be 
 mixed with another in an explosive combination, and a third 
 
 1 Art. 2317. 
 
 2 Yates V. Brush Electric Light, &c. Co., 40 La. Ann. 467. 
 
 * Ferguson v. Boston Gas Light Co , 170 Mass. 182. The proprietor 
 of a cellar, who knows, or ought to know that there is an accumulation of 
 gas therein, is liable to one who, lawfully entering the cellar, is injured 
 thereby. Finnegan v. Fall River Gas Works Co., 159 Mass. 311. If the 
 insulation of an electric wire placed on a building by an electric light 
 company is gone, and has been gone for such a length of time that the 
 company ought to have known of it, this fact is evidence of the negligence 
 of the company, competent to be submitted to a jurv in an action for an 
 injury caused by the condition of the wire. See Illingsworth v. Boston 
 Electric Light Co., 161 Mass. 583; Hector v. Bis<^on Electric Light Co., 
 161 Mass. 558. It is negligence for an electric lighting company to leave 
 uninsulated telephone wire in the public street where persons passing 
 may be exposed to contact with it. Dillon v. Allegheny County Light 
 Co., 179 Penn. St. 482. It is said that while the owner of property is not 
 generally obliged to protect trespassers thereon, yet the rule may be qual- 
 ified when an owner operates such a dangerous force as electricity. 
 Newark Electric Light, &o. Co. v. Mason, 39 U. S. App. 416. 
 
234 PERSONAL INJUEIES. [CHAP. IV. 
 
 party be thereby injured.^ So, a manufacturer who uses in 
 dyeing his cloths a common mordant, which, so far as known, 
 has never caused injury to one merely handling cloths dyed 
 therewith, and which he had no reason to suppose to be inju- 
 rious, is not liable to a purchaser poisoned by handling the 
 cloth.2 If, however, a person delivering a dangerous article 
 to another ought reasonably to have foreseen the likelihood of 
 its being placed in a combination which would render it dan- 
 gerous, he may be liable. Thus, two substances, manufac- 
 tured by different persons, were dangerously explosive only 
 in combination with each other, and were ordinarily used 
 together. A customer sent separate orders to the respective 
 manufacturers for quantities of each substance to be sent 
 him by a common carrier. The substances were accordingly 
 delivered to the carrier, in apparently harmless packages, by 
 the manufacturers, each acting independently and being 
 ignorant of the other's proceedings, and neither notified the 
 carrier of the nature of the substance. The carrier placed 
 the packages, for conveyance, together, in his vehicle, where 
 they exploded and injured the plaintiff. In an action brought 
 by the plaintiff against the customer who ordered the pack- 
 ages, and the respective manufacturers, it was held that, upon 
 the facts, the customer was not liable, but that the manufac- 
 turers were jointly liable for the injury suffered by the plain- 
 tiff, it being impossible to ascertain how much of the injury 
 was produced by one of the substances and how much by the 
 other. The court said : " Each party violated his duty none 
 the less because he was ignorant as to what other articles 
 were to be carried in the same car with his. By neglecting 
 to give notice, he took the risk of any danger that might 
 reasonably be apprehended from the proximity of other goods 
 that the carriers might take in ignorance of the danger. If 
 . . . duelin and exploders [the dangerous articles] are ordi- 
 narily used together, any person sending either of the two sub- 
 stances might reasonably apprehend that a quantity of the 
 other substance might be carried with it."^ 
 
 ■^ Davidson v. Nichols, 11 Allen, 514, and see McDonald v. Snelliug, 
 14 Allen, 290 ; Boston & Albany R. R. v. Shanley, 107 Mass. 568. 
 2 Gould V. Slater Woolen Co., 147 Mass. 315. 
 » Carney v. Shanley, 107 Mass. 568, 
 
§§ 132-133. J NEGLIGENCE OP DEFENDANT. 235 
 
 § 133. Physicians. — A person who professes to be a physi- 
 cian undertakes, not to perform a cure in any case, but to bring 
 to the exercise of his profession such reasonable measure of 
 care and skill as is possessed, ordinarily, by other persons of 
 the same profession.^ And in determining the degree of skill 
 to be exacted in any case, regard is to be had to the advanced 
 state of the profession at that time.^ If an ignorant person 
 undertakes to act as a physician or surgeon, he may be re- 
 sponsible for the injurious consequences to the patient whom 
 he assumes to treat.^ But one who, without special qualifica- 
 tions, and gratuitougly, volunteers to attend the sick, can, at 
 most, only be required to exercise the measure of skill and 
 diligence usually exercised by persons of like qualifications 
 under similar circumstances.* It would seem that if a physi- 
 cian or surgeon feels himself incompetent to treat a case 
 committed to him, it is his duty to recommend the patient to 
 employ another physician or surgeon, when this is practicable ; 
 but if the physician or surgeon is competent and feels that he 
 is competent to treat the patient, but is uncertain, or in doubt, 
 as to the extent or nature of the patient's ailment, then he is 
 
 1 Lanphier v. Phipos, 8 C. & P. 475 ; Hancke v. Hooper, 7 C. & P. 81 ; 
 Rich V. Pierpont, 3 F. & F. 35; Leighton v. Sargent, 7 Foster, 460; 
 Wilmot ».' Howard, 39 Vt. 447; Hathorn v. Richmond, 48 Vt. 557; Wood 
 V. Clapp, 4 Sneed, 65 ; Ritchey v. West, 23 111. 385 ; Utley v. Bums, 70 
 HI. 162; Barnes ». Means, 82 lU. 379; Landon v. Humphrey, 9 Conn. 
 209 ; Branner ». Stormont, 9 Kan. 51 ; Carpenter v. Blake, 17 N. Y. S. C. 
 358 ; Heath v. Glisan, 3 Oregon, 64 ; Gallagher v. Thompson, Wright, 
 466; Haire v. Reese, 7 Phila. 133; Howard v. Grover, 28 Maine, 97; 
 Simonds o. Henry, 39 Maine, 155 ; Cayford v. Wilbur, 86 Maine, 414 ; 
 Hastings v. Stetson, 91 Maine, 229; Dashiell v. Griffith, 84 Md. 363; 
 McCracken v. Smathers, 122 N. C. 799 ; Link v. Sheldon, 186 N. Y. 1. 
 The physician will not be liable for a mere error in judgment. Pike v. 
 Housinger, 155 N. Y. 201. 
 
 2 McCandless v. MoWha, 22 Penn. St. 261; Small v. Howard, 128 
 Mass. 131. 
 
 8 Carpenter v. Blake, 60 Barb. 488; Higgins v. McCabe, 126 Mass. 
 13; Rex v. SpUIer, 5 C. & P. 333; Ruddock v. Lowe, 4 F. & F. 519; 
 Jones V. Fay, 4 F. & F. 525; Scare v. Prentice, 8 East, 548; Slater v. 
 Barker, 2 Wils. 359. 
 
 * Higgins V. McCabe, 126 Mass. 13; Leighton v. Sargent, li Foster, 
 119; Simonds v. Henry, 39 Maine, 155; Lanphier v. Phipos, 8 C 8e P. 
 475; Hancke v. Hooper, 7 C. & P. 81. 
 
236 PERSONAL INJURIES. [CHAP. IV. 
 
 required to use his best judgment as to whether he will con- 
 sult some other physician or surgeon.* If the negligence or 
 unskilfulness of the physician is clearly the proximate cause 
 of the injury suffered by his patient, the physician will be 
 responsible therefor, although the patient, also, has been 
 guilty of negligence in taking care of himself.^ But if the 
 plaintiff's own neglect and imprudence is a direct contributing 
 cause, with the defendant's malpractice, of the injury com- 
 plained of, the plaintiff will not be entitled to recover.^ It is, 
 ordinarily, a question of fact for the determination of the jury 
 whether the injury complained of is the result of the fault of 
 the physician.* The great weight of authority is in favor of 
 the rule that if death ensues fi-om the gross carelessness, 
 ignorance, or rashness of a person who undertakes to admin- 
 ister medicine to another, although such person be a physician 
 and act without express malice, his act may be manslaughter. 
 Such cases fall within the class in which malice is said to be 
 implied, and the meaning of the legal fiction of implied malice 
 is that a man may be criminally responsible for consequences 
 which he neither intended nor anticipated.^ 
 
 1 See Mallen v. Boynton, 132 Mass. 443. 
 
 = See Hibbard v. Thompson, 109 Mass. 286, § 98, ante. 
 
 8 Feeneyj). Spaulding, 89 Maine, 111; Styles v. Tyler, 64 Conn. 432; 
 Richards ». Willard, 176 Penn. St. 181. 
 
 * See cases cited supra. 
 
 s Webb's Case, 2 Lewin, 196; Rex v. Williamson, 3 C. & P. 685; 
 Tessymond's Case, 1 Lewin, 169 ; Rex v. Simpson, Willcook, Med. Prof., 
 Part 2, ccxxvii; Rex v. Long, 4 C. & P. 398 ; Rex v. Spiller,- 5 C. & P. 
 333; Rex v. Senior, 1 Moody, 346; Queen v. Spilling, 2 M. & R. 107; 
 Regina ». Whitehead, 2 C. & K. 202; Regina v. Crick, 1 F. & F. 519; 
 Regina v. Crook, 1 F. & F. 521; Regina v. Markuss, 4 F. & F. 356; 
 Regina v. Chamberlain, 10 Cox, C. C. 486; Regina v. McLeod, 12 Cox, 
 C. C. 534; Commonwealth v. Pierce, 138 Mass. 165; Ann v. State, 11 
 Humph. (Tenn.) 159; State v. Hardister, 38 Ark. 605. So far as expres- 
 sions in the case of Commonwealth v. Thompson, 6 Mass. 134, are in 
 conflict with this view of the law, these are not supported by other 
 authority. 
 
§§ 133-134.] NEGLIGENCE OP PLAINTIFF. 237 
 
 CHAPTER V. 
 
 OF CONTRIBUTORY NEGLIGENCE ON THE PART OF THE 
 PLAINTIFF. 
 
 SECTION I. 
 
 LAW AND PACT : BUEDEN OF PROOF. 
 
 § 134. Due Care generally : Defined. — In order to recover 
 for an injury on the ground of the negligence of another, it 
 must appear that the injured person was in the exercise of 
 due care in respect of the occurrence from which the injury 
 arose ; or that the injury was in no manner due to his own 
 fault or want of care ; in other words, that he was not guilty 
 of contributory negligence.^ This is true even in those juris- 
 dictions in which it is considered that due care on the part of 
 the plaintiff is to be presumed,^ it being held that the pre- 
 sumption supplies the place of proof. " Care imports atten- 
 
 1 Butterfield v. Forrester, 11 East, 60 ; Hawkins v. Cooper, 8 C. & P. 
 473; Harlow v. Humiston, 6 Cow. 189; Tuff v. Warman, 5 C. B. (n. s.) 
 573; 27 L. J. (C. P.) 322; 5 Jur. (n. s.) Exch. 222; Witherly v. Re- 
 gents Canal Co., 12 C. B. (n. a.) 2, 3 F. & F. 61; Burkie «. New York 
 Dry Dock Co., 2 Hall, 151; Brownell v. Flagler, 5 Hill, 282; Brown v. 
 Maxwell, 6 Hill, 592; Cook «. Champlain Transportation Co., 1 Den. 91; 
 Delafield v. Union Ferry Co., 10 Bosw. 216; Thwings v. Central Park 
 K. R., 7 Rob. 616; Gonzales v. New York Central & H. R. R. R., 38 
 N. Y. 440 ; Wilcox v. Rome, W. & O. R. R., 89 N. Y. 358 ; Grippin v. 
 New York Central R. R., 40 N. Y. 34; Blunn v. Delaware, L. 8e W. R. R., 
 6 Hun, 303; Toomey v. Turner, 24 Hun, 590; Brandt). Schenectady & 
 Troy R. R., 8 Barb. 368; Sheffield v. Rochester & Syracuse R. R., 21 
 Barb. 339; Terry v. New York Central R. R., 22 Barb. 574; Dascomb 
 V. Buffalo & State Line R. R., 27 Barb. 221; Bieseigel v. New York Cen- 
 tral R. R., 33 Barb. 429; Cox v. Westchester Turnpike Co., 33 Barb. 
 414; Fowler v. Dorian, 24 Barb. 384; Havens v. Erie R. R., 53 Barb. 
 328; Keese v. New York, N. H. & H. R. E., 67 Barb. 205, and cases 
 cited infra. 
 
 " See §§ 136, 137, post. 
 
238 PERSONAL INJURIES. [CHAP. V. 
 
 tion, heedfulness, caution, and to use or take any degree of 
 care there must be some vigilance, some exertion of the 
 faculties to preserve what is desirable to save, or to avoid the 
 danger or avert the peril to which a person may be exposed. 
 When there is no thought of what may happen as the conse- 
 quence of the action or conduct of a party, and no vigilance 
 or circumspection is exercised concerning it, there is no care ; 
 for care, in its very nature and signification, imports that to its 
 existence there must be some degree of activity and caution.^ 
 The question always is whether, notwithstanding the plain- 
 tiff's negligence, the defendant, by the exercise of proper care, 
 could have averted the accident.^ And when it appears that 
 the accident could not have happened but for the fact that 
 the deceased unnecessarily put himself into a position of great 
 danger, he is to be held guilty of contributory negligence.' 
 So, as between employer and employee, due care means the 
 exercise of reasonable diligence, or such watchfulness, care, 
 and foresight as ought, under all the circumstances of the 
 case, to be practised by a careful and reasonable man.* It is 
 
 1 Gilman v. Deerfield, 15 Gray, 577. 
 
 " Fulp V. Roanoke & So. R. R., 120 N. C. 525. 
 
 8 Farmer v. Mich. Cent. R. R., 99 Mich. 131. 
 
 * Wabash Railway Co. v. McDaniels, 107 U. S. 454. Due care is often 
 defined as " such care and caution as an ordinarily prudent person would 
 exercise under similar circumstances." Austin & N. W. R. R. v. Beatty, 
 73 Tex. 592. See, to the same efEect, Austin v. Ritz, 72 Tex. 391. In- 
 structing the jury that "care of a man of ordinary prudence " is " just 
 such care as one of yon similarly employed would have exercised under 
 the circumstances," is error. Louisville & Nashville R. R. v. Gower, 
 1 Pickle (Tenn.), 465. In an instruction defining "ordinary care" as 
 such care as persons of average prudence and caution would use under like 
 circumstances, the word " average " should be omitted. Marsh v. Benton 
 County, 75 Iowa, 469. One whose mind is merely duU, and who is capa- 
 ble of earning his livelihood, and apparently does not need the protection 
 of a guardian to keep him from harm, is bound to use due and ordinary 
 care for his personal safety; but it he is mentally unable to apprehend 
 apparent danger and avoid it, another, knowing his condition, who negli- 
 gently puts him in peril, cannot escape liability on the ground of contrib- 
 utory negligence. Worthington v. Menoer, 96 Ala. 310. The general 
 rule as to contributory negligence is abrogated in Florida by Laws, c. 3744, 
 § 1 ; which introduces "the modern doctrine of comparative negligence," 
 providing that where contributory negligence is shown, the damages shall 
 
§§ 134-135.] NEGLIGENCE OP PLAINTIFF. 239 
 
 often said that the plaintiff may recover, although his own 
 negligence exposed him to the risk of injury, if the defendant, 
 after he was made aware of the plaintiff's danger, might have 
 averted it and failed to do so ; ^ or, as the rule is sometimes 
 expressed, if the defendant could by the exercise of reason- 
 able diligence have avoided the injury, he will not be excused 
 for his failure of duty by the contributory negligence of the 
 defendant.^ The rule thus expressed would seem to mean 
 nothing more than that the defendant will be liable for his 
 negligence if this was the proximate cause of the injury, 
 although an antecedent cause was the negligence of the 
 plaintiff.^ 
 
 § 135. Burden of Proof : Massachusetts Rule. — The rule as to 
 the burden of proof upon the issue of contributory negligence 
 is not uniform. In Massachusetts, it is held, in actions 
 brought for personal injuries, as in all others, that the burden 
 of proof is upon the plaintiff throughout, and so that in order 
 to recover he must show that (1) the defendant was negligent, 
 and (2) that the plaintiff was not negligent, or, as the rule is 
 expressed in that State, that the plaintiff was in the exercise 
 of due care.* Thus both the essential propositions of the 
 
 be proportionally reduced. See Florida Central R. K. v. Williams, 37 
 Fla. 406. See § 102, ante. The courts of Illinois hold that " the question 
 of the negligence of the person injured is entirely for the jury, and the 
 court will not, as matter of law, lay down what precautions he ought to 
 have taken." Chicago, St. Louis & P. R. R. v. Hutchinson, 120 111. 587, 
 and see Chicago :;. McLean, 133 111. 148, 1890, distinguished and limiting 
 Kewanee v. Depew, 80 111. 119, and Sandwich v. Dolan, 133 111. 177, 
 distinguishing' Aurora v. HiUman, 90 HI. 61. To the same effect, see 
 Columbus & W. R. R. v. Bradford, 86 Ala. 574. 
 
 1 Healey v. Dry Dock, &c. R. R., 46 N. T. S. C. 473. 
 
 * See Radley v. London & Northwestern Railway, L. R. 1 App. Cas. 
 754; Kenyon v. New York Central & H. R. R. R., 5 Hun, 479 ; Bahren- 
 burg V. Brooklyn R. R., 56 Hun, 652; Whireley v. Whitemau, 1 Head 
 (Tenn.), 610. 
 
 ' See §§ 100-103, ante, notes and cases cited. 
 
 * Smith V. Smith, 2 Pick. 621 ; Lane v. Crombie, 12 Pick. 177 ; White 
 V. Winnissimmet Co., 7 Cush. 155 ; Horton v. Ipswich, 12 Cush. 488 ; Holly 
 V. Boston Gas Light Co., 8 Gray, 123; Spofford v. Harlow, 3 Allen, 176; 
 Wright V. Maiden & Melrose R. R., 4 Allen, 283; Counter v. Conch, 8 
 Allen, 436; Callahan v. Bean, 9 Allen, 401. For instances of the appli- 
 
240 PERSONAL INJURIES. [CHAP. T. 
 
 plaintiff's case are made affirmative, and, so far as the form 
 of the rule is concerned, the necessity is not imposed upon 
 the plaintiff of proving a negative proposition. It is said that 
 the burden to prove due care is upon the plaintiff for the 
 reason that this is a subordinate proposition, involved in the 
 more general proposition upon which the plaintiff's right of 
 action is founded, to wit, that the injury was caused by the 
 negligent or wrongful act of the defendant. And if the facts 
 show negligence on the part of both plaintiff and defendant, 
 the defendant is not bound to show that the accident would 
 have happened notwithstanding his own negligence.* But al- 
 though this is, in form, an affirmative proposition, it is held 
 that it is not necessary to prove it by affirmative testimony 
 addressed directly to its support. If the whole testimony in 
 the case, taken together, excludes all appearance of fault on 
 the part of the plaintiff, the proposition of due care is proved 
 as effectually as by affirmative testimony .^ So far, therefore, 
 as method of proof is concerned, it will be found that the 
 practice is the same in Massachusetts, and in other States 
 which have followed the same rules as to the technical burden 
 of proof, as it in those jurisdictions where it is considered 
 that contributory negligence, being a matter of defence, is to 
 be pleaded and proved by the defendant. The application of 
 the Massachusetts rule was well illustrated in an action 
 brought against a gas company for injuries received by the 
 inhalation of gas escaping from the defendant's pipes. The 
 plaintiff, who was an infant too young to testify, occupied 
 the same bed with his mother, and the door of the room in 
 which they slept being broken open in the morning, the plain- 
 tiff was found insensible by the dead body of his mother, 
 whose death had been caused by gas escaping from a crack in 
 a pipe laid by the defendant through the street on which the 
 plaintiff lived. There were no gas fixtures in the room, nor 
 was there any evidence that the plaintiff or his mother had 
 
 cation of the rule in actions by employees, see Riley v. Conn. River R. R., 
 135 Mass. 292 ; Taylor v. Carew Mfg. Co., 140 Mass. 150. See §§ 150- 
 154, post. 
 
 * Murphy v. Deane, 101 Mass. 455. 
 
 " Mayo V. Boston & Maine R. R., 104 Mass. 137, and see cases cited 
 nupra. 
 
§ 135. J NEGLIGENCE OP PLAINTIFF. 241 
 
 notice or consciousness of the escaping gas in season to leave 
 the room or to open the doors or windows. It appeared that 
 the mother was a sober and prudent woman. It was held, 
 since due care may be shown by evidence which excludes 
 fault, that there was nothing in the case to exclude the infer- 
 ence that the mother and child, on the night of the accident, 
 went to bed and to sleep in the usual manner with nothing to 
 indicate that there was unusual exposure to injury, and that 
 they were suffocated in their sleep, and that they were in the 
 exercise of such care as prudent people ordinarily use under 
 circumstances of exposure to injury from hidden and unsus- 
 pected causes.^ It would seem in all cases where injury re- 
 sults from unexpected and unforeseen causes, that the burden 
 of proof to show due care must be satisfied by showing that 
 the plaintiff was where he had a lawful right to be, and, being 
 there, behaved as prudent persons ordinarily behave. It 
 would manifestly be absurd in such cases, in order to a 
 recovery, to require proof by affirmative testimony that the 
 injured person used special precautions against a danger the 
 existence of which he was not bound to suspect. Such cases 
 may be distinguished from those in which a plaintiff volun- 
 tarily puts himself in a dangerous place, or in which he is 
 to be taken to know that danger may be anticipated.^ The 
 general proposition that the burden is on the plaintiff to show 
 that he was in the exercise of due care appears to be held, 
 generally, by the English courts,^ and by the courts of several 
 of the States.* 
 
 1 Smith V. Boston Gas Light Co., 120 Mass. 316. 
 
 2 Smith V. Boston Gas Light Co., 120 Mass. 316. See § 137, post, 
 notes and cases cited. 
 
 * See London, Brighton & South Coast Railway ». Walton, 14 L. T. 
 
 * Trow V. Vermont Central R. R., 24 Vt. 487 ; Lazelle v. Newfane, 69 
 Vt. 306; Birge v. Gardiner, 19 Conn. .507; Beers v. Housatonic R. R., 19 
 Conn. 566 ; Kennard v. Burton, 25 Maine, 49 ; Moore v. Central R. R.,4 Zab. 
 284; Mynning v. Detroit, L. & N. R. R., 67 Mich. 677; Deikman v. Morgan's 
 L. and T. R. & S. S. Co., 40 La. Ann. 787; Hathaway t'. Toledo, Wabash 
 & W. R. R., 46 Ind. 25; Toledo, Wabash & W. R. R. v. Brannagan, 75 
 Ind. 490; Cincinnati, Hamilton & D. R. R. v. Butler, 103 Ind. 31; Cin- 
 cinnati, H & D. R. R. V. McMullen, 117 Ind. 5 ; Thomas v. Hoosier Stone 
 Co., 140 Ind. 518 ; Clements v. La. Electric Light Co., 44 La. Ann. 692. 
 
 16 
 
242 PERSONAL INJURIES. [CHAP. V. 
 
 § 136. Rule that Contributory Negligence is. Matter of Defence. 
 — In the earlier cases, the courts in New York appear to have 
 followed the Massachusetts rule as to burden of proof upon 
 the question of contributory negligence,^ but the later rule in 
 
 (n. s.) 253; Clayards v. Dethick, 12 Ad. & El. n. 8. 439, 447 ; Gough v. 
 Bryau, 3 M. & W. 247, 248; Martin v. Great Northern E. R., 30 E. L. & 
 E. 473; Scott ■!>. Dublin & Wicklow Railway, 11 Ir. C. L. 377; Dowell v. 
 General Steam Navigation Co., 5 El. & Bl. 195; Bridget;. Grand Junc- 
 tion Railway, 3 M. & W. 244. Contrary expressions contained in TufE 
 V. Warraan, 5 C. B. (n. s.) 573, [and see 27 L. J. (C. P.) 322, 5 Jur. 
 N. s. (Exch.) 222 ;] are elaborately discussed and criticised in Mm-phy 
 V. Deane, 101 Mass. 455, 464, in which case Wells, J., says: "It is ap- 
 parent that the statement taken from TufEi). Warman'' [that "mere neg- 
 ligence, or want of ordinary care or caution, will not disentitle the 
 plaintifE to recover, unless it be such that, but for that negligence or 
 want of ordinary care and caution, the misfortune could not have hap- 
 pened "], " entirely overlooks the practical application of the rule as a 
 guide in the trial a cause. ... It not only fails to take into account 
 the well-settled principle that the burden is upon the plaintifE to show 
 due care on his own part, but by its form implies the contrary. We 
 think that the statement will be found to be faulty in substance, as well 
 as in form. . . . There is certainly nothing indicated in this proposi- 
 tion for the plaintifE to establish affirmatively. More than this, if it 
 should appear that the negligence of the defendant was an adequate 
 cause to produce the result, the plaintifE must recover, even though he 
 was himself equally, or even to a greater degree than the defendant, in 
 fault. If the case can be supposed in which both parties were equally in 
 fault, the fault of each being equally proximate, direct, and adequate to 
 produce the result, so that it might have occurred from the conduct of 
 either without the fault of the other, there would be a case of con- 
 tributory negligence, for the consequences of which neither could re- 
 cover from the other. But upon the statement quoted . . . neither 
 would be ' disentitled,' and therefore both could recover if both suf- 
 fered injury, each from the other. Every case in which the proof fails 
 to show, or leaves in doubt, which of two suflBcient causes was the actual 
 proximate cause of the injury, is practically such a case. It is manifest 
 from this illustration, that, as a definition of the limit of the right to re- 
 cover in such cases, the proposition . . . must be logically incorrect. 
 Eliminating negatives from the first branch of the proposition, it is, that 
 a plaintiff may recover in such case, unless the misfortune would not have 
 happened but for his own negligence. This, as we have seen, being stated 
 affirmatively, is too broad, and not correct; although its supplement or 
 negative counterpart is correct, as far as it extends, to wit, that he can- 
 not recover if the misfortune could not have happened but for his own 
 negligence." 
 
 1 Button V. Hudson River R. R., 18 N. Y. 248. 
 
§§ 135-136.] NEGLIGENCE OP PLAINTIFF. 243 
 
 that State is expressed as follows : " The culpability of the 
 defendant must be affirmatively proved before the case can go 
 to the jury, but the absence of any fault on the part of the 
 plaintiff may be inferred from circumstances ; and the dispo- 
 sition of men to take care of themselves and keep out of diffi- 
 culty may properly be taken into consideration."^ So, "it 
 cannot be held as a universal rule, that the plaintiff must 
 prove affirmatively that he was not guilty of negligence, or 
 that the defendant must prove the contrary, in order to estab- 
 lish a defence." ^ The Supreme Court of the United States, 
 following the rule of the New York courts upon this subject, 
 says : " It is not correct to say that it is incumbent upon the 
 plaintiff to prove . . . care and caution. The want of . . . 
 care ... is a defence to be proved by the other side. The 
 plaintiff may establish the negligence of the defendant, his 
 own injury in consequence thereof, and his case is made out. 
 If there are circumstances which convict him of contributory 
 negligence, the defendant must prove them and thus defeat 
 the action. Irrespective of statute law on the subject, the 
 burden of proof upon that subject does not rest upon the 
 plaintiff."' The rule thus expressed has been adopted in 
 many States. It is said in Pennsylvania : " The natural in- 
 stinct which leads men, in their sober senses, to avoid injury 
 and preserve life is an element of evidence ; " * and in Califor- 
 nia : ® " The gravamen of the action is the negligence of the 
 
 1 Oldfield V. New York & Harlem R. R., 14 N. T. 310. So it is said 
 that travellers approaching a railway crossing "have . . . greatest in- 
 centive to cantion, . . . and hence it will not be presamed, without evi- 
 dence, that they do not exercise proper care in a particular case." Per 
 Bradley J., in Continental Improvement Co. v. Stead, 95 U. S. 161. 
 
 ''Johnson v. Hudson River R. R., 20 N. T. 65; Wilds v. Hudson 
 River R. R., 24 N". T. 430; hut see Eades v. Clark, 55 N. Y. S. C. 132. 
 
 « Washington & Greorgetown R. R. v. Gladmon, 82 U. S. 401, and see 
 Continental Improvement Co. v. Stead, 95 U. S. 161 ; Hough v. Texas & 
 Pacific R. R., 100 U. S. 213; Crane Elevator Co. v. Lippert, 24 U. S. App. 
 176; Hayes v. North Pac. R. R., 46 U. S. App. 41; Mobile & Ohio R. R. 
 V. Wilson, 46 U. S. App. 214. 
 
 * Allen V. Willard, 59 Penn. St. 374 ; and see Pennsylvania Tel. Co. v. 
 Vamau, 15 Atl. Rep. 624 (Penn. 1888). 
 
 6 Gay V. Winter, 34 Cal. 153; South Toledo, P. & W. R. R. v. Chis- 
 bolm, 49 U. S. App. 700. See also Tolson v. Inland & S. Coasting Co., 
 
244 PERSONAL INJURIES. [CHAP. V. 
 
 defendant, but when this is affirmatively shown, and there is 
 no proof of the conduct of the injured person, the jury may 
 infer ordinary care and diligence on his part, taking into con- 
 sideration his character and habits as proved, and the natural 
 instinct of self-preservation." Thus the doctrine stated would 
 seem to rest upon the assumption that there is, in all cases, a 
 presumption, or inference of fact, derived from the observation 
 
 6 Mackey, 39 ; Gordon v. Richmond, 83 Va. 436 ; Central R. R. v. Small, 
 80 Ga. 519; Johnston v. Rich. & D. R. R., 95 Ga. 685; Meyer u. King, 
 72 Miss. 1 ; Jones v. Malvern Lumber Co., 58 Ark. 125 ; Northern Pacific 
 R. R. V. O'Brien, 21 Pac. Rep. 32 (Wash. 1889) ; Missouri Pacific R. R. 
 V. McCally, 41 Kan. 639; St. Louis & S. F. R. R. v. Weaver, 41 Kan. 
 639 ; Ford v. Umatilla County, 15 Or. 313 ; O'Brien v. Tatnm, 84 Ala. 
 186; Kansas City, M. & B. R. R. v. Crocker, 95 Ala. 412; Western R. R. 
 V. Williamson, 114 Ala. 131; Kimball r. Friend, 95 Va. 125; Southern 
 R. R. V. Bryant, 95 Va. 212; Canfield v. Asheville St. Railway, 111 N. C. 
 597; Whaley v. Bartlett, 42 S. C. 454 ; Ewen v. Chicago & Northwestern 
 R. R., 38 Wis. 613; Hoyt v. Hudson, 41 Wis. 105; Strong v. Stevens 
 Point, 62 Wis. 255; Greenleaf v. Illinois Central R. R., 29 Iowa, 14; 
 Stewart v. Nashville, 96 Tenn. 50. In the following cases it is held that 
 contributory negligence is an affirmative defence, and as such is to be 
 specially pleaded. Reeves v. Dubuque & Sioux City R. R., 92 Iowa, 32; 
 Consolidated Coal Co. v. Wombaoher, 134 111. 57 ; Keitel v. St. Louis 
 Cable & W. R. R., 28 Mo. App. 657; St. Clair v. Missouri Pacific R. R., 
 29 Mo. App. 76; Donovan v. Hannibal & St. Jo. R. R., 89 Mo. 147; 
 Thorpe v. Missouri Pacific R. R., 89 Mo. 650 ; HiU v. Meyer Bros. Drug 
 Co., 140 Mo. 433; Louisville & Nashville R. R. v. Copas, 95 Ky. 460; 
 Louisville & Nashville R. R. m. Schuster, 7 S. W. Rep. 874 (Ky. 1888), 
 and the later cases in Texas hold the same rule. See Ball v. El Paso, 5 
 Tex. Civ. App. 221 ; Gulf, C. & Santa Fe R. R. v. Finley, 11 Tex. Civ. 
 App. 64; Sickles v. Mo., K. & T. R. R., 13 Tex. Civ. App. 434. The 
 same rule is held in Nebraska, Union Stock Yards Co. v. Conoyer, 41 
 Neb. 617, and so when the issue is between master and servant, Kearney 
 El. Co. V. Laughlin, 45 Neb. 391 ; Lincoln Street R. R. v. Cox, 48 Neb. 
 807. It is held in Missouri, that a general averment of contributory neg- 
 ligence in an answer, without specifying the particular act of negligence 
 relied on, is sufficient to establish the defence, Neier v. Missouri Pacific 
 R. R., 6 S. W. Rep. 695 (1890); and where the plaintiff's own testimony 
 shows that he was guilty of such contributory negligence as to defeat his 
 right of action, the defendant may take advantage of it, although he has 
 not pleaded specially. Hudson v. Wabash W. R. R., 101 Mo. 23; and. 
 see North Birmingham Street Railroad v. Calderwood, 7 So. Rep. 360 
 (Ala. 1890); Hobson v. New Mexico & A. R. R., 11 Pao. Rep. 545 (Ariz. 
 1890); Murray v. Missouri Pacific R. R., 101 Mo. 136. 
 
§ 136.] NE6UGENCE OP PLAINTIFF. 245 
 
 of the ordinary conduct of men in circumstances of danger, 
 that the person in such a situation will exercise a reasonable 
 care for his own safety ; and that this presumption, or infer- 
 ence, may ordinarily stand in the place of positive proof, so 
 as to support the burden of proof which, in ordinary cases, is 
 to be overcome by direct affirmative testimony.^ In accord 
 with this theory of the law as to burden of proof, appear to be 
 the expressions of Denio, J., in the leading case in New York 
 upon the subject : " I am of opinion that it is not a rule of 
 universal application that the plaintiff must prove affirmatively 
 that his own conduct on the occasion of the injury was cau- 
 tious and prudent. The oTmis probandi . . . depends upon the 
 position of the affair as it stands upon undisputed facts. 
 Thus, if a carriage be driven furiously upon a crowded 
 thoroughfare, and a person is run over, he would not be 
 obliged to prove that he was cautious and attentive, and he 
 might recover though there were no witnesses of his actual 
 conduct. The natural instinct of preservation would stand 
 in the place of positive evidence, and the dangerous tendency 
 of the defendant's conduct would create so strong a proba- 
 bility that the injury happened through his fault that no other 
 evidence would be required. But if one make an excavation 
 or lay an obstruction in the highway, which may or may not 
 be the occasion of an accident to a traveller, it would be 
 reasonable to require a party seeking damages for an injury 
 to give general evidence that he was travelling with ordinary 
 moderation and care.* The principle thus stated has repeat- 
 edly been applied by the Federal courts. Thus it was held 
 that the law, in the entire absence of evidence, presumes that 
 a railway employee, crossing the track of a railway at night, 
 on foot, to go to his duty, looks and listens for approaching 
 
 1 So it is held that although the burden of proof is upon the proponent 
 of a will, yet the presumption that the testator was sane is effectual as 
 proof, in the absence of any controverting testimony, to overcome the pre- 
 sumption against the validity of the will. See BusweU, Law of Insanity, 
 §177. 
 
 ' Johnson v. Hudson River R. R., 20 N. Y. 65, 69. Where the plain- 
 tiff slipped on an icy ridge and was injured, and there was no evidence 
 whatever to show any care by the plaintiff, it was held that she was not 
 entitled to recover. Weston v. Troy, 139 N. Y. 281. 
 
246 PERSONAL INJURIES. [CHAP. V. 
 
 trains, before crossing ; ^ and that the presumption is that a 
 traveller, seeing a railway train approaching a crossing, will 
 not attempt to cross in front of it.^ And where it did not 
 appear whether one killed by a railway train in attempting to 
 make a crossing looked and listened as he approached the 
 crossing, it was held that the question of his contributory 
 negligence was for the jury ; ^ and it has been laid down as a 
 general rule that where there were no eye-witnesses of an 
 accident the question of the negligence of a person injured 
 thereby is one of fact.* Although the burden be on the de- 
 fendant to show contributory negligence, proof of this may 
 well arise out of the plaintiff's testimony.^ 
 
 § 137. Application of the Conflicting Rules. — In cases in which 
 there is conflicting testimony upon the question of contribu- 
 tory negligence, or when the uncontroverted testimony leaves 
 the question in doubt, it will be of little consequence which 
 rule as to burden of proof is applied, since, by an application 
 of either, it will become the duty of the jury to ascertain the 
 preponderance of the testimony, or its effect, and render their 
 verdict accordingly. And it is to be observed that mere pre- 
 sumptions of fact become of little weight, when the positive 
 facts of the case are in evidence. Thus it was held, where, in 
 an action for personal injuries, the plaintiff was a witness in 
 her own behalf, that inferences as to the absence of contribu- 
 tory negligence,, arising from the instinct of self-preservation, 
 were not to be entertained.® But when there is not any posi- 
 tive testimony in the case upon the point of contributory 
 negligence, different results may be reached according as the 
 
 1 Texas & Pacific B.. R. v. Gentry, 163 U. S. 353. 
 
 " McGhee v. Kennedy, 31 U. S. App. 366. 
 
 8 Northern Pacific R. R. v. Freeman, 48 U. S. App. 757. 
 
 « Toledo, p. & W. R. R. v. Chisholm, 49 U. S. App. 700. 
 
 6 Waterman v. Chicago & N. W. R. R., 82 Wis. 613. See § 137, post,, 
 and cases cited. 
 
 ' Reynolds v. Eeokuk, 72 Iowa, 371. So, although it is held generally, 
 in New York, that the presumption of due care is to prevail in doubtful 
 cases, yet where all the circumstances in evidence pointed just as much 
 to the negligence of the injured person as to the absence of it, or pointed 
 in neither direction, it was held that the plaintiff should be non-suited. 
 Cordell v. New York Central & H. R. R. R., 75 N. Y. 330. 
 
§§ 136-137.] NEGLIGENCE OF PLAINTIFF. 247 
 
 courts do, or do not, admit the existence and weight of the 
 presumption. Thus, in Massachusetts, it is held that if 
 the evidence be equally consistent either with care or negli- 
 gence on the part of the plaintiff he fails to sustain the bur- 
 den of proof and so cannot recover. So where one was fatally 
 injured by driving into a ditch in a city, and died without 
 having testified as to the circumstances of the accident, and 
 the only testimony as to the circumstances was that of a 
 person who did not see the accident, but helped to pick up 
 and remove the injured person, it was held that there could 
 be no recovery.^ And a like rule was held by the majority of 
 the court, in a case where the plaintiff's intestate was killed 
 at the crossing of a railway, and the only material testimony 
 was that he was struck by a detached car of the defendant 
 which was moving rapidly without signal or warning.^ On 
 
 1 Crafts V. Boston, 109 Mass. 519. But, in some eases, circumstances, 
 without the production of eye witnesses, may establish the fact that the 
 plaintifE was in the exercise of due care. Lazelle v. Newfane, 69 Vt. 
 306. 
 
 2 Hinckley ». Cape Cod R. R., 120 Mass. 258. In this case, while 
 admitting the general rule as laid down in Massachusetts, Gray, C. J., 
 and Morton, J., dissented from the majority of the court, on the ground 
 that sufficient testimony was disclosed to send the question of contribu- 
 tory negligence to the jury as one of fact. The majority opinion dis- 
 tinguishes the cases of French v. Taunton Branch R. R., 116 Mass. 537, 
 and Craig v. New York & New Haven R. R., 118 Mass. 431. The case 
 illustrates the difficulty of applying the general rule laid down, since, in 
 deciding the legal question whether in any case there is evidence to go to 
 the jury upon the issue of contributory negligence, the court has to weigh 
 and determine the effect of the facts in the case. In Maguire v. Fitch- 
 burg R. R., 146 Mass. 379, the evidence of due care on the part of the 
 plaintiif was very slight, but the case was distinguished from Hinckley v. 
 Cape Cod R. B,., supra, and the question left to the jury. See also, Thyng 
 V. Fitchburg R. R., 156 Mass. 13; Tyndale v. Old Colony R. R., 156 Mass. 
 503; Barton v. Kirk, 157 Mass. 303; Tyler v. Old Colony R. R., 157 Mass. 
 336; Moore v. Boston & Albany R. R., 159 Mass. 399 ; Geyette v. Fitch- 
 burg R. R. , 162 Mass. 549 ; Dyer v. Fitchburg R. R., 170 Mass. 148 ; Stewart 
 V. N. Y., N. H. & H. R. R., 170 Mass. 480. Where one was found fatally 
 injured at the bottom of a mining-shaft, and there was no competent 
 evidence as to the cause of his falling, it was held that there was a total 
 failure of proof of facts to charge the owner of the mine with responsi- 
 bility for the accident. Lendberg v. Brotherton Iron Mining Co., 75 
 Mich. 84. See, also, Baltimore & Ohio R. R. v. State, 71 Md. 590; Par- 
 
248 PERSONAL INJURIES, [CHAP. V. 
 
 the other hand, in a very similar case occurring in New York, 
 the court being asked to rule that there was no affirmative 
 testimony to show that the injured person looked to see where 
 he was going as he approached the crossing, this ruling was 
 refused, and the court said that the presumption that the in- 
 jured person would look out for his own safety might well 
 control the case, and left the question of contributory negli- 
 gence to the jury.^ Where the plaintiff's intestate, an expe- 
 rienced brakeman, when last seen alive was performing his 
 duty in setting the brakes on a car on which he was riding, 
 and a minute later, the train having separated at the first 
 coupling in front of him, he was thrown to the ground, run 
 over, and killed, and there was no other evidence bearing on 
 the question of his negligence, it was held that the question 
 was for the jury.^ Where an engineer was killed at his post 
 by accident resulting from the presence of ice across the track 
 which he must have been unable to see by reason of a fog, it 
 was held that he might be considered to have been in the 
 exercise of due care.* Where one driving a wagon, on a dark 
 night, on a highway thirty-two feet wide, apparently backed 
 the wagon across the highway, through a line of trees over a 
 sidewalk and down a slope into a pond, between which and 
 the highway there was no barrier except the row of trees, and 
 he was found drowned in the pond, and no other circum- 
 stances of the accident appeared, it was held that it did not 
 appear as matter of law that the deceased had been guilty 
 of contributory negligence.* 
 
 § 138. Question generally one of Pact. — Whatever rule be 
 adopted as to burden of proof in cases involving the question 
 of contributory negligence, the court will not, when the evi- 
 dence upon this issue is contradictory, or when the conclusions 
 
 rott V. Wells, 15 Wall. 524, 537 ; Norwood v. Raleigh & G. R. R., 111. N. 
 C. 236. 
 
 1 Massoth V. Delaware & Hudson Canal Co., 64 N. Y. 524. See, also, 
 Atkinson v. Abraham, 45 Hun, 238; Galvin v. New York, 112 N. Y. 223; 
 Bond V. Smith, 113 N. Y. 378. 
 
 » Burns v. Chicago, Milwaukee & St. P. R. R., 69 Iowa, 450. 
 
 8 Soagel V. Chic, M. & St. P. R. R., 83 Iowa, 380. 
 
 * Lutton V. Vernon, 62 Conn. 1. 
 
§§ 137-138.] NEGUGENCE OP PLAINTIFF. 249 
 
 to be drawn from it are doubtful, decide the question as one 
 of law, although the evidence may seem to preponderate on 
 one side or the other. To do this would, in many cases, be to 
 determine both the weight and the credibility of the testimony. 
 Moreover the surrounding circumstances of each case, and the 
 conduct of the plaintiff in reference to them, will, generally, 
 afford plausible grounds for such a variety of inferences as to 
 make the verdict of a jury the only proper means to determine 
 the essential facts. So, however indicative of carelessness on 
 the part of the plaintiff the circumstances may seem to the 
 court, if there be any substantial testimony in the case upon 
 which it would be competent for the jury to find that the 
 plaintiff was not guilty of contributory negligence, the ques- 
 tion is to be submitted to them as being a question of fact.^ 
 On the other hand, a scintilla of evidence is not enough to 
 ' authorize the court to submit the question to the jury.^ There 
 must be something to justify a reasonable inference that the 
 plaintiff was, at the time of the injury, in the exercise of due 
 care,^ and when, upon the uncontroverted facts, contributory 
 negligence clearly appears, it is to be so found as matter of 
 law.* 
 
 § 139. Necessity of Proof removed by Statute : Passenger. — 
 The necessity of proving that the injured person was in the 
 exercise of due care has been removed by statute in certain 
 
 1 Mayo V. Boston & Maine R. B., 104 Mass. 337 ; Germond v. Cent. 
 Vt. R. R., 65 Vt. 126; Manley v. D. & H. Canal Co., 69 Vt. 101; Chis- 
 ho]m V. State, 141 N. T. 246; McNown v. Wabash R. R., 55 Mo. App. 
 585; Claybaugh v. Kansas City, &o. R. R., 56 Mo. App. 630; McCormiok 
 j;. Monroe, 64 Mo. App. 197; Romeo v. Boston & Maine R. R., 87 Maine, 
 540. 
 
 ' Mayo V. Boston & Maine R. R., 104 Mass. 137, and see §§ 93, 94, 
 ante. 
 
 * Butterfleld v. Western R. R., 10 Allen, 532; Denny v. Williams, 5 
 Allen, 1. See, also, Philadelphia & R. R. R. v. Hummell, 44 Penn. St. 
 375; WUds V. Hudson River R. R., 24 N. Y. 430. 
 
 * Gates ». Penn. R. R., 154 Penn. St., 566; Vannata w. Cent. R. R. 
 of N. J., 154 Penn. St. 262; Whitman v. Penn. R. R., 156 Penn. St. 175; 
 Russell V. Carolina Cent. R. R., 119 N. C. 1098; Louisville & N. R. R. v. 
 Phillips, 100 Ala. 865; Grows v. Maine Central R. R., 67 Maine, 100; 
 Smith V. O. & 0. Steamship Co., 99 Cal. 462. 
 
250 PERSONAL INJURIES. [CHAP. V. 
 
 cases, notably where the injured person is a passenger for hire 
 upon a railway train. Thus the General Statutes of Mas- 
 sachusetts, c. 63, §§ 97, 98,^ provided that " if by reason of the 
 negligence or carelessness of a railroad corporation, or of the 
 unfitness or gross negligence or carelessness of its servants or 
 agents while engaged in its business, the life of any person 
 being a passenger is lost; or the life of any person being iu 
 the exercise of due diligence, and not being a passenger or in 
 the employment of such corporation, is lost ; in either case 
 the corporation" shall be subject to indictment and fine. 
 This provision embodies the substance of several preceding 
 statutes upon the same subject, and the court, in considering 
 it, say : " In comparing these different statutes, we are led to 
 the conclusion that the legislature designed to subject the 
 defendant to the penalty for causing the death of a passenger, 
 though such passenger might have been wanting in the exer- 
 cise of due care. We cannot suppose that . . . the omission 
 to require due care from a passenger, and the express requii-e- 
 ment of it from other persons, is without meaning, and that 
 due care is required in both cases." ^ And, as to the provision 
 in the same statute, for a civil action of tort in behalf of the 
 personal representatives of a passenger killed by the fault of 
 a railway corporation,^ it is held that the latter provision, 
 equally with the former, dispenses with the necessity of proof 
 of due care on the part of the injured person.* So where the 
 
 1 Pub. Sts. c. 112, § 212. The benefit of the act is extended to 
 employees. Acts 1883, c. 243. See §§ 21 et seq., ante, notes and cases 
 cited. 
 
 2 Commonwealth v. Boston & Lowell R, E., 134 Mass. 211. 
 8 Pub. Sts. c. 112, § 212. 
 
 4 Merrill v. Eastern R. R., 139 Mass. 252; McKimble ». Boston & 
 Maine R. R., 139 Mass. 542. The statute iu Maine, expressly provides 
 that the deceased, though a passenger, must, in order to a conviction, have 
 been in the exercise of due care. A sin)ilar statute, in New Hampshire, 
 Gen. Sts. c. 264, § 14, makes no distinction between passengers and other 
 persons not in the employment of the defendant company, and does not 
 in terms require due care on the part of the injured person. But the pro- 
 ceeding under this statute, although in the name of the State, is held to 
 be essentially a civil proceeding to recover damages, and to be governed, 
 so far as may be, by the rules governing civil actions. State v. Man- 
 chester & Lawrence R. R., 52 N. H. 528. Where one leaves a train in 
 
§§ 139-139 a.] NEGLIGENCE OP PLAINTIFF. 251 
 
 statute provides that in every case of non-observance by a 
 railroad company of certain precautions to prevent accident 
 the company shall be liable for the damages caused thereby, 
 the fact that the injured person was not in the exercise of due 
 care will not prevent his recovering although it may, perhaps, 
 be admissible in mitigation of damages.^ 
 
 § 139 a. Effect of Such Statutes in the Federal Courts. — The 
 question whether the Federal courts will follow the courts of 
 a State, as to the effect of contributory negligence in actions 
 under a statute of the State, depends upon the grounds given 
 by the State court as the basis of its conclusion. If the 
 statute is held to be merely declaratory of the common law, 
 
 motion he thereby ceases to be a passenger, and in order to recover for an 
 injury received after he has left the train, he must show that he was in 
 the exercise of due care. Commonwealth v. Boston & Maine Railroad, 
 129 Mass. 500; Buckley «. Old Colony R. R., 161 Mass. 26. So where 
 the plaintifE left a train which had stopped at a short distance from a 
 station at a place where it was not customary to leave passengers. The 
 rule may be otherwise when plaintifE supposes the train has arrived at the 
 station. Bass v. Providence & Worcester R. R., 15 R. I. 149. 
 
 1 Railway Companies v. Foster, 88 Tenn. 671. See also Mobile & 
 Ohio R. R. V. People, 24 111. App. 250. The Gen. Sts. South Carolina, 
 § 1529, provide that the plaintifE shall not recover when the injury was 
 caused by the defendant's negligence, if the plaintifE was guilty of "gross 
 or wilful negligence " which contributed to the injury. See Petrie v. 
 Columbia & G. R. R., 29 S. C. 303. Section 2972 of the code of Georgia 
 making the defendant liable, although the plaintifE may have contributed 
 to the injury, if the plaintifE could not, by the exercise of ordinary care, 
 have avoided the consequences of the defendant's negligence, is not ap- 
 plicable when the plaintifE claims full damages, and not as in the case of 
 contributory negligence. Pierce v. Atlanta Cotton Mills, 79 Ga. 782. 
 Under a statute in Illinois providing for fencing the openings to coal 
 shafts, it was held that the defendant was liable for his failure to do this, 
 irrespective of the question of the contributory negligence of the plaintiff's 
 testator. Catlett v. Young, 143 111. 74. For statutory or constitutional 
 provisions modifying the common-law rule of contributory negligence in 
 favor of employees, see Const., Miss., 1890, sec. 193; Short v. New 
 Orleans & N. E. R. R., 69 Miss. 848 ; Welsh v. Alabama & Vicksburg 
 R. R., 70 Miss. 20; Buckner v. Richmond & D. R. R., 72 Miss. 873; 
 Comp. Sts. Nebraska, c. 72, art. 1, sec. 3; Missouri Pacific R. R. v. Baier, 
 37 Neb. 253; Chicago, B. & Q. R. R. v. Hague, 48 Neb. 97; Fremont, 
 E. & M. V. R. R. V. French, 48 Neb. 638. 
 
252 PERSONAL INJUEIE8. [CHAP. V, 
 
 both in its requirements and in the measure of liability to be 
 imposed for failure to observe it, and the plea of contributory 
 negligence is allowed only in mitigation of damages, because, 
 in the view of the court, that is the only effect the statute 
 could have in an action for common-law negligence ; the effect 
 of contributory negligence in such a case will be considered a 
 question of general common law, in which the Federal courts 
 may exercise an independent judgment. But when the rule 
 of the State court is the legitimate effect of the construction, 
 by the supreme tribunal of the State, of a State statute, then 
 the Federal courts will follow such construction.^ Thus a rule 
 that contributory negligence shall not be a complete bar to a 
 statutory action for negligence, but only go to mitigation of 
 damages,^ is binding upon a Federal court when such rule 
 grows out of the language of the statute and its construction 
 by the Supreme Court of the State.^ So, in the absence of 
 legislative enactments, the liability of the master to one of his 
 employees for the negligence of another is to be determined 
 by the general and not by the local law ; and the decisions of 
 the courts of the State in which the injury is inflicted are not 
 controlling in the Federal courts ; but when the subject is 
 regulated by the statutes of the State in which the injury is 
 inflicted, these become the " rules of decision in trials at 
 common law" in the Federal courts, under U. S. Rev. Sts. 
 § 721.* 
 
 SECTION n. 
 
 GENERAL RULES APPLIED TO THE ISSUE. 
 
 § 140. Unlawful Act of Plaintiff contributing. — If the plain- 
 tiff at the time of the occurrence of the injury complained of 
 
 1 Nason v. Kansas City, &c. R. R., 22 U. S. App. 220. 
 
 2 Code, Tenn. MiU. & V. (1884), §§ 1298-1300. See Western & At- 
 lantic E. R. V. Roberson, 22 U. S. App. 187, following Louisville & Nash- 
 ville E. R. V. Burke, 6 Cold. 45; Railroad v. Acuff, 92 Tenn. 26. 
 
 » Byrne v. Kansas City, &c. R. R., 9 C. C. A. 666. 
 * Northern Pacific E. E. v. Mase, 27 U. S. App. 238. See Peiroe v. 
 Van Dusen, 47 U. S. App. 339, as cited post, § 218. 
 
§§ 139 a-140.] NEGLIGENCE OP PLAINTIFF. 253 
 
 is engaged in the doing of an unlawful act, which act may 
 fairly be referred to as being the proximate cause of the in- 
 jury, he cannot recover for such injury .^ A familiar illustra- 
 tion of this rule is afforded in the case of a trespasser, it being 
 commonly held that one unlawfully upon the land of another 
 cannot recover for injuries there received by him, unless such 
 injuries were wanton or malicious on the part of the owner of 
 the land, or the result of negligence so extreme on the part of 
 the owner that wanton or malicious intent is to be inferred 
 therefrom.^ The question in every case must be whether the 
 unlawful act was the direct and efficient cause of the injury, 
 and upon this question it is said : " The best minds often differ 
 upon the question whether in a given case illegal conduct of 
 a plaintiff was a direct and proximate cause contributing with 
 others to his injury, or was a mere condition of it ; or, to state 
 the question in another way, appropriate to the reason of the 
 rule, whether or not his own illegal act is an essential element 
 of his case as disclosed upon all the evidence. Upon this 
 point it is not easy to reconcile the cases. . . . But whatever 
 criticisms may have been made upon the decisions or the as- 
 sumptions in certain cases, — that illegal action of the plaintiff 
 
 1 Baker v. Portland, 58 Maiue, 199 ; Norris v. Litchfield, 35 N. E. 271 
 Sutton V. Wauwatosa, 29 Wis. 21 ; Davis v. Guaruieri, 45 Ohio St. 470 
 Tuttlec. Lawrence, 119 Mass. 276; Lyons v. Desotelle, 124 Mass. 387 
 Smith V. Boston & Maine R. R., 120 Mass. 490; Heland v. Lowell, 3 
 Allen, 407; Hall v. Corcoran, 107 Mass. 251. In the latter case it is held 
 that, in the former case of Gregg ». Wyman, 4 Gush. 322, the court erred 
 in holding the plaintiff's illegal conduct to be an essential element of his 
 case, when, in fact, it was merely incidental to it. It was held, where 
 one was detected in breaking open a railroad car in the night-time, and, 
 when discovered, jumped out and ran, and refused to stop when halted, 
 and was thereupon shot by an employee of the train, that the criminal's 
 joint and contributory fault would bar his recovery in a civil action for 
 damages against the railroad company. CandifE v. Louisville, N. O., & 
 T. R. R., 42 La. Ann. 477. 
 
 '^ See § 71, ante. So, where the servant of a telegraph company engaged 
 in stringing wires along a highway, the company not having a license to 
 string wires, was injured by the driving of a street car against a wire 
 attached to his person, it was held that he could not recover against the 
 railway company for his injury, it not appearing that there was malice 
 on the part of the servants of the company. Banks v. Highland Street 
 Railway, 136 Mass. 485. 
 
254 PERSONAL INJURIBa. [CHAP. T. 
 
 contributed to the result, or was to be treated as a concurring 
 cause, or upon language in disregard of the distinction be- 
 tween a cause and a condition, — there has been none upon 
 the doctrine that, when a plaintiff's illegal conduct does di- 
 rectly contribute to his injury, it is fatal to his recovery of 
 damages." * 
 
 §141. Violation of Statute or Ordinance. — The general 
 rule stated applies when the illegal act of the plaintiff con- 
 sists in the violation of a general law or municipal ordinance. 
 In such cases, the proof of the illegal act merely renders it 
 incumbent on the plaintiff to show that such violation was 
 not the proximate cause of the injury complained of.^ Thus, 
 it is held generally that the fact that a plaintiff, at the time 
 of the accident, was in the act of violating a municipal ordi- 
 nance against fast driving will not preclude him from re- 
 covering damages, as against one whose negligence was the 
 proximate cause of the injury, unless such driving in fact 
 contributed to the injurious result.^ It is obvious that those 
 cases do not fall within this rule, in which, by the express 
 terms of the statute or ordinance, it is provided that the 
 party violating it shall not have his remedy if, while engaged 
 in such violation, he is injured.* It is held, generally, that 
 
 ^ Per Knowlton, J., in Newcomb v. Boston Protective Department, 
 146 Mass. 596, 602. See Keed v. Missouri Pacific R. E., 50 Mo. App. 
 504. 
 
 2 Minerly w. Union Ferry Co., 56 Hun, 113; Illinois Central E. E. v. 
 Ashline, 171 111. 313; Young v. Chic, M. & St. P. E. E, 100 Iowa, 857. 
 Where a city ordinance provided that no person should play in its 
 streets so as to interfere with their use by travellers, it was held that such 
 ordinance would not afifeot a child twenty-one months old nor modify 
 the duty of others to use due care towards such a child alone in the 
 street. Budd v. Meriden El. E. E., 69 Conn. 272. 
 
 » Wright V. Maiden & Melrose R. R., 4 Allen, 283 ; Hall v. Eipley, 
 119 Mass. 135; Hanlon v. South Boston R R., 129 Mass. 310; Jetter v. 
 New York Central & H. R. R. R., 2 Abb. App. Cas. 458. 
 
 ' Corry v. Bath, 35 N. H. 530; Carroll v. Staten Island R. R., 58 
 N. Y. 126 ; Mohney v. Cook, 26 Penn. St. 342, and see Sutton v. Wauwa- 
 tosa, 21 Wis. 21. So there are certain penal, or qimsi penal, statutes 
 which make the violator of them responsible for such violation abso- 
 lutely, and do not regard the question whether or not he was guilty of 
 actual negligence. See Newcomb v. Boston Protective Department, 146 
 
§§ 140-141.] NEGLIGENCE OP PLAINUPP. 255 
 
 proof of the existence of the statute is always competent 
 evidence upon the issue of the plaintiff's negligence ; but its 
 materiality depends upon whether its violation contributed 
 directly to the injury.^ It is to be observed that a different 
 rule may obtain where the thing unlawfully done is in itself 
 wrongful, — that is, not merely malum prohibitum, but 
 malum in se. It is said : " There are, no doubt, cases where- 
 Mass. 596, 600. The cases, in Massachusetts, in which plaintiffs have 
 been held precluded from a recovery for injuries received while travelling 
 on the Lord's Day, in violation of the statute prohihiting such travelling 
 unless for reasons of necessity or charity, seem to have rested upon the 
 assumption that the violation was in all cases, ex necessitate, the proxi- 
 mate cause of the injury. Stanton v. Metropolitan R. R., 14 Allen, 485, 
 and see also. Smith v. Boston & Maine R. R., 120 Mass. 490; Davis v. 
 Somerville, 128 Mass. 594; Day v. Highland Street E. R., 135 Mass. 113. 
 So, in the latter case, it was said : " This is not because the liability of a 
 city or town for a defect in a way is imposed by statute, or because a city 
 or town stands in any different position from an individual, or other cor- 
 poration, but only because the act of travelling, which is the act pro- 
 hibited, necessarily contributes to cause the injury. The act . . . with 
 no evidence of any other negligence has been held to be necessarily con- 
 tributory to the injury sustained by the plaintiff." The same rule has 
 been applied in the same State in actions brought for injuries received by 
 a defendant while engaged in laboring on the Lord's Day, in violation of 
 the statute. See McGrath v. Merwin, 112 Mass. 467 ; Read v. Boston & 
 Albany R. R., 140 Mass. 119. So far as these cases hold that the viola- 
 tion of the statute is to be conclusively presumed to be the proximate 
 cause of the injury, it would seem that they are not in accord with the 
 weight of authority, and it is perhaps difficult to reconcile them with the 
 cases in the same State, in which it has been held that the fact that a 
 plaintiff was violating an ordinance against fast driving when he was in- 
 jured would not necessarily preclude him from maintaining an action for 
 his injury. See cases cited supra. The later case of Newcomb v. Boston 
 Protective Department, 146 Mass. 596, would seem to establish, in 
 Massachusetts, the general rules upon this subject which are held else- 
 where. (Now, in Massachusetts, it is provided that " the provisions of 
 c. 98 of the Public Statutes relating to the observance of the Lord's Day, 
 shall not constitute a defence to an action for a tort or injury suffered by 
 a person on that day." St. 1884, c. 37, § 1.) 
 
 1 See cases cited svpra, and Damon v. Scituate, 119 Mass. 66. It is 
 said, apparently with reason, that the existence of the statute is imma- 
 terial, unless there be evidence that the plaintiff has violated it. Fern- 
 bach V. Waterloo, 34 N. W. Rep. 610 (Iowa, 1887) ; but see, Dundas v. 
 Lansing, 75 Mich. 499. 
 
256 PERSONAL INJURIES. [CHAP. V. 
 
 iu an injured party will be remediless, even when his fault 
 does not contribute to the accident. A vessel engaged in the 
 slave-trade, piracy, or smuggling, and injured by another, or 
 the keeper of a gambling-house injured in his business by a 
 neighboring nuisance, could have no remedy. Not, however, 
 because the persons are out of the protection of the law for 
 their offences, nor because their illegal business brought them 
 to the place of danger ; but because their business itself, with 
 all its instruments, is outlawed. Prohibited contracts, pro- 
 hibited trades, and prohibited things receive no legal protec- 
 tion; but persons are never outlawed." So the court held 
 that one who erected an obstruction in a navigable stream, 
 and thereby caused injury to another, could not, as a defence 
 to an action for the injury, set up that the plaintiff was un- 
 lawfully engaged in worldly employment on Sunday when the 
 injury occurred; and said, "We cannot see that Sabbath- 
 breaking is a fault of this description. If there is any . . . 
 connection between such a fault and the event here com- 
 plained of, then it falls under the rule, causa proxima non 
 remota spectatur." ^ 
 
 § 142. utmost Care not required. — The behavior of the 
 plaintiff must be adapted to the circumstances in which he 
 is placed ; but it is not necessary that he should have behaved 
 with perfect composure and entire self-possession, or should 
 have come to an accurate decision as to the wisest course to 
 pursue.^ The law, having consideration for the weakness of 
 human nature, will not require of a person placed in circum- 
 stances of sudden danger, confusion, or excitement, that delib- 
 erate forethought to be expected under other circumstances.^ 
 
 1 Per Lowrie, J., in Mohney v. Cook, 26 Pen a. St. 342, 349, 350. See 
 also Philadelphia, Wilmington & B. R. R. v. Havre de Grace Steam Tow- 
 boat Co., 23 How. 209 ; Powhatan Steamboat Co. v. Appomattox E. R., 
 24 How. 256. 
 
 " Fero V. Buffalo & State Line R. R., 22 N. T. 209; Ernst v. Hudson 
 River R. R., 24 How. Pr. 97. Thus, if a child goes upon a railroad track 
 in order to escape from cattle of which she is afraid, this is not as matter 
 of law contributory negligence. Cassida v. Oregon Railway & Nav. Co., 
 14 Or. 551. 
 
 8 Cook V. New York Central R. R., 3 Keyes, 476; MoGrath v. Hudson 
 
§§ 141-142.] NEGUGENCE OP PLAINTIFF. 257 
 
 So a person, in the attempt to rescue another from danger, 
 may assume some risk short of mere rashness, without being 
 legally chargeable with a want of due care.^ It is said : " The 
 law has so high a regard for human life that it will not im- 
 pute negligence to an effort to preserve it, unless made under 
 such circumstances as to constitute rashness in the judgment 
 of prudent peraons." ^ It is not negligence per se for one 
 voluntarily to risk his own safety or life in attempting to res- 
 cue another from peril ; and the question whether he is to be 
 charged with contributory negligence is for the jury under 
 proper instructions.' If the act of the defendant has caused 
 fear and loss of preseface of mind on the part of the plaintiff, 
 so as to impel him to rush into danger and thereby to suffer 
 injury, the plaintiff is not to be charged with contributory 
 negligence.* The age and mental and bodily capacity are to 
 
 River R. R., 32 Barb. 144; 19 How. Pr. 211; Willis v. Long Island R. R., 
 32 Barb. 398 ; Wilds v. Hudson River R. R., 3 Barb. 503 ; Barker v. Sav- 
 age, 1 Sweeney (N. T.), 288; Ladd v. Foster, 31 Fed. Rep. 827; Penn- 
 sylvania TeL Co. V. Vamau, 15 Atl. Rep. 624 (Penn. 1888); South 
 Covington, &c. Street Railway v. Ware, 84 Ky. 267; Sekarak v. Jutt, 153 
 Penn. St. 117; Gray v. Gennania, &o. Co., 164 Penn. St. 508; Donahue 
 V. Kelly, 181 Penn. St. 93; Raikoad v. Pugh, 97 Tenn. 624; Haas v. 
 Chic, M. & St. P. R. R., 90 Iowa, 259 ; Penn. Co. v. McCafErey, 139 Ind. 
 430; Durham, &c. Co. v. Dandelin, 143 HI. 409; Peoria, D. & E. R. R. v. 
 Bice, 144 lU. 227; Lincohi Rapid Transit Co. v. Nichols, 37 Neb. 332; 
 Gulf, Col. & Santa Fe R. R. v. Knott, 14 Tex. App. 158; Chic. & N. W. 
 R R. o. Tripkosh, 32 U- S. App. 406. 
 
 1 Buel V. New York Central R R, 31 N. Y. 314; Pigott v. Lilly, 55 
 Mich. 150; Donahoe v. Wabash, St. L. & Pac. R R., 83 Mo. 550; Cajv 
 roll t>. Minnesota VaUey R. R., 14 Minn. 57. 
 
 « Eckert v. Long Island R R, 43 N. Y. 502. In this case, the plain- 
 tiS was injured in the attempt to rescue a child from being run over by 
 the defendant's locomotive, and it was held that he was not to be de- 
 barred from a recovery on the ground of contributory negligence. See 
 Linnehan v. Sampson, 126 Mass. 506; Spooner v. Delaware, L. & W. 
 R. R, 115 N. Y. 22. 
 
 » Pennsylvania R R. v. Langdon, 48 Ohio St. 316; Floyd v. Phil. & 
 K. R B., 162 Penn. St. 29, and see Brown v. French, 104 Penn. St. 604. 
 
 ♦ Coulter r. American Express Co., 56 N. Y. 585. In this case the 
 defendant's servant was recklessly driving an express wagon upon a side- 
 walk in a city, and the plaintiff, in order to escape the sudden danger of 
 collision, sprung to one side, and, in so doing, struck her head against a 
 
 17 
 
258 PERSONAL INJDBIES. [CHAP, V. 
 
 be considered in determining the question of his contributory 
 negligence ; ^ and whether his fright and confusion of mind 
 was such as reasonably to excuse an act ordinarily impru- 
 dent, is generally a question to be determined by the jury.^ 
 It has been held that under some circumstances the sex of 
 the plaintiff is to be taken into account in determining the 
 measure of care to be exacted of her ; ^ and a less measure of 
 care is to be exacted from infants than from adults.* By an 
 application of the rules stated, it is held that the failure, on 
 the part of a person approaching a railway crossing, to look 
 out for a train, may be excusable under circumstances of great 
 confusion and excitement of mind ; as where such person has 
 his attention directed to one of two approaching trains, and 
 in seeking to avoid it, he fails to look out for the other,^ 
 Again, a person may, in the line of his duty, do acts which in 
 a stranger or intruder would be clearly negligent, but which 
 will not estop him from a recovery for an injury received 
 through the fault of his employer ; as where an employee of a 
 railroad, in the performance of his prescribed work, stepped 
 upon the track, in front of an approaching train, which he had 
 reason to believe would be stopped before it reached him, and 
 
 building, and was thereby injured; and it was held that she was not as 
 matter of law guilty of contributory negligence. 
 
 1 Filer v. New York Central K. R., 49 N. Y. 47; Neff v. Wellesley, 148 
 Mass. 487; Simms v. South Carolina R. R., 26 S. C. 490; International 
 & G. N. R. R. ... Garcia, 75 Tex. 383; Kennedy v. Denver, St. P. & P. 
 R. R., 10 Colo. 493, and see §§ 146, 147, post, notes and cases cited. 
 
 2 Johnson v. West Chester & Philadelphia R. R., 70 Penn. St. 357; 
 Galena, &o. R. R. v. Yarwood, 17 111. 509. A person who is compelled to 
 act at once, in the presence of imminent danger, is not, as matter of law, 
 to be held guilty of contributory negligence, merely because of his failure 
 to choose the best means of escape therefrom. Schultz v. Chicago & 
 Northwestern Railway, 44 Wis. 638; Chicago, Rock Island & Pacific Rail- 
 road V. Dignan, 56 111. 487. 
 
 * Thus it is said that a woman driving a horse on the highway may 
 be presumed to be somewhat wanting in the " knowledge, skill, dexterity, 
 steadiness of nerve, and coolness of judgment " which are to be looked 
 for in a man under like circumstances. Hassenyer r. Michigan Central 
 R. R., 48 Mich. 204. See Snow v. Provincetown, 120 Mass. 580; Bloom- 
 ington V. Perdue, 99 El. 329. 
 
 * See % US, post. 
 
 6 Schultz V. Chic. & N. W. R. R., 44 Wis. 638. 
 
§§ 142-143.] NEGLIGENCE OP PLAINTIFF. 259 
 
 was struck by it and injured.* The rule was held otherwise 
 where the employee was not upon the track in the line of his 
 duty and had no reason to suppose that he could enter upon 
 the track without danger.^ Where the employee of a railway 
 company engaged in running a hand-car was put in sudden 
 apprehension of a collision with an approaching locomotive, 
 the question whether he was guilty of contributory negligence 
 in leaping from the hand-car in order to avoid the collision is 
 for the jury.^ Where it appeared that the injured person was 
 walking on a portion of the defendant's track, built over low 
 marshy ground, on each side of which there was a ditch filled 
 with water ; that there was no way of getting off the track 
 except by jumping into or across the ditch; that when the 
 deceased first saw the locomotive it was about nine hundred 
 and twenty feet behind Mm, and he was about one hundred 
 and fifty feet from a platform at which he could have left the 
 track ; it was held that it was a question for the jury what 
 he should have done to avoid injury and whether he was 
 negligent.* 
 
 § 143. 'Wilful Assninption of XTiineceBaaiy Risk. — A person 
 who voluntarily exposes himseK to obvious danger, without 
 
 1 Steele v. Central R. R. of Iowa, 43 Iowa, 109. See also Farley v. 
 Chicago, R. L & Pac. R. R., 56 Iowa, 337. 
 
 "■ Murphy v. Chicago, R. I. & Pa<j. R. R., 38 Iowa, 539, 45 Iowa, 661. 
 
 » Smith V. Wrightsville & T. R. R , 83 Ga. 671. But a section man 
 remaining in a hand-car and run down by a train, when he, clearly, might 
 have saved himself by jumping, is g^iilty of contributory negligence. Nel- 
 Ung V. Chic, St. P. & K. C. R. R., 98 Iowa, 554. 
 
 * Remer v. Long Island R. R., 48 Hun, 352. See also Neier v. Mo 
 Pacific R. R., 6 S. W. Rep. 695 (Mo. 1888). So where the injured pel 
 son was walking on the track. May v. Central R. R. & Banking Co., 80 
 Ga. 363. Where a person and his infant son were both trespassers upon 
 the right of way of a railroad, and the son was exposed to consequent peril 
 by the voluntary act of the father, it was held that the personal represen- 
 tative of the father was not entitled to recover for the father's death while 
 attempting to rescue the son ; although, had the father not been a tres- 
 passer and chargeable with exposing his son to peril, the mere attempt to 
 rescue the son would not have been such negligence on the father's part 
 as to preclude a recovery for an injury caused by the negligence of the 
 raUway company. Cleveland, C. C. & St. L. R. E. v. Phillips, 24 U. S. 
 App. 489. 
 
260 PEBBONAL INJURIES. [CHAP. V. 
 
 any reason of necessity or propriety to justify him in so doing, 
 is, as matter of law, guilty of negligence, and assumes all the 
 risks attending his act.^ Thus, it may be contributory negli- 
 gence to enter a railway tunnel, knowing that trains are about 
 to pass through it ; ^ or to walk upon a railroad-track in front 
 of a moving locomotive ; ' or to ride upon the " pilot " of a 
 locomotive ; * or to enter upon a railway crossing while the 
 gates are down to indicate the approach of a train ; ^ or to 
 dive in rocky and shallow water while bathing ; ® or to skate 
 on thin ice after proper warning of danger ; '' or unnecessarily 
 to stand upon the platform of a moving railway-car ; ^ or to 
 get upon,^ or to alight f rom,^" such a car while it is in motion ; 
 
 1 Schoenfield v. Milwaukee City R. E., 74 Wis. 433; Frazer v. South & 
 North Alabama K. K., 81 Ala. 185 ; Toddt). Old Colony & Newport R. R, 
 7 Allen, 207 ; Murphy v. Webster, 151 Mass. 121. 
 
 2 Loeffler v. Missouri Pacific R. R., 96 Mo. 267. 
 
 » Donnelly v. Brooklyn City R. R., 109 N. Y. 16; Ohio & Mississippi 
 R. R. V. Hill, 117 Ind. 56. 
 
 * Jones V. Baltimore & Potomac R. R., 95 U. S. 439. 
 
 6 Granger v. Boston & Albany R. R., 146 Mass. 276. 
 
 8 Hinz V. Starin, 3 N. Y. Sup. N. E. Rep. 290 (1889). 
 
 ' Sickles ». New Jersey Ice Co., 153 N. Y. 83. 
 
 ' Hiokey v. Boston & Lowell R. R., 14 Allen, 429. In this case, 
 Wells, J., said: " If the injury happens while the passenger is occupying 
 a place provided for the accommodation of passengers, nothing further 
 is ordinarily necessary to show due care. But when the plaintiff's own 
 evidence shows that he left the place assigned for passengers, and was 
 occupying an exposed position, and that the injury was due in part to 
 the fact of such position, he must necessarily fail, unless he can make 
 it appear, upon some ground of necessity or propriety, that his being in 
 that position was consistent with the exercise of proper caution and care 
 on his part. The front platform of a steam railway car, coming into a 
 station, detached from the train, where the approach is complicated by 
 side tracks, turnouts, and switches, and rendered more liable to accident 
 by the operation of breaking up and transposing the train, while in 
 motion, cannot be otherwise, comparatively, than a position of danger." 
 
 » Lucas V. New Bedford & Taunton R. R., 6 Gray, 64. See § 124, ante. 
 
 1" Brooks B. Boston & Maine R. R., 135 Mass. 21; Creamer v. West End 
 Street Railway, 156 Mass. 320 ; Burden v. Lake Shore & M. S. R. R., 104 
 Mich. 101 ; Jacob y. Flint & P. M. R. R., 105 Mich. 450. One who 
 voluntarily and unnecessarily halts his team near a railroad track, on 
 which a freight-train is standing, knowing that his horses are easily 
 frightened at the noise of trains, cannot recover for injuries caused by 
 
§ 143.] NEGLIGENCE OP PLAINTIFF. 261 
 
 or to stand unnecessarily on a railway track to converse with 
 friends.^ But it is to be observed that the application of this 
 rule is restricted, since the conduct of parties is generally 
 determined in large measure by surrounding circumstances ; 
 which circumstances will be of weight in determining whether 
 the particular act was or was not careless.^ Thus, the degree 
 of care required of one about crossing a public way, in respect 
 of vehicles in the way, is less than that of one approaching a 
 railway crossing, in respect of trains. And the traveller in an 
 unfrequented road in the country will be bound to less watch- 
 fulness than one attcympting to cross a city street.* Where it 
 is the duty of a landlord to keep the ceiling of a hallway in 
 
 reason of his horses becoming nnmanageable when the customary signals 
 for starting the train are given. Hargis v. St. Louis, A. & T. R. R., 75 
 Tex. 19. It may be want of ordinary care for the plaintifE to remain 
 iu a house after he knows that it is being filled with illuminating gas 
 escaping from a leak in the pipes ; Holly v. Boston Gas Light Co., 8 
 Gray, 123; Hunt v. Lowell Gas Light Co., 1 Allen, 343, at least if he fail 
 to give notice to the gas company that the gas is escaping. Ibid. 
 
 1 Dell V. Phillips Glass Co., 169 Penn. St. 549. 
 
 " Mayo V. Boston & Maine R. R., 104 Mass. 137; Lyman v. Hamp- 
 shire, 140 Mass. 311 ; Merritt v. New York, N. H. & H. R. R., 162 Mass. 
 326. Generally in such cases it is for the jury to consider, as beai'ing 
 upon the question of due care, whether the situation, arrangement, and 
 use of the defendant's premises were such as to invite the plaintiff to en- 
 ter upon them. Gaynor v. Old Colony & Newport R. R., 100 Mass. 208. 
 So where the plaintiff was injured in attempting to cross the defendant's 
 tracks near a station, it was held that the jury might consider what was 
 the usage of passengers in crossing at that point, and whether this usage 
 was known to the defendant, and acquiesced in by it. Caswell t;. Boston 
 & Worcester R. R., 93 Mass. 194. But where a person, without looking 
 for approaching trains, crossed a railroad track at a station, at a point 
 where there was no planking provided for the use of passengers crossing, 
 while such planking was provided at points above and below, it was held 
 that he was guilty of contributory negligence. Wheelwright v. Boston 
 & Albany R. R., 135 Mass. 225. See Stevens t>. Oswego & Syracuse 
 R. R., 18 N. T. 422 ; Warren v. Fitchburg R. R., 8 Allen, 227. 
 
 * Lynam v. Union Railway, 114 Mass. 83 ; Bowser v. Wellington, 126 
 Mass. 391 ; Shapleigh v. Wyman, 134 Mass. 118. It is not as matter of 
 law negligence in a pedestrian in a city street to cross behind a high 
 loaded team before it has passed far enough to enable him to see another 
 team coming from behind it on the other side. Furtell v. Jordan, 156 
 Mass. 573. 
 
262 PERSONAL INJURIES. [CHAP. T. 
 
 repair, contributory negligence cannot be imputed to a tenant 
 who knew, and had informed the landlord, that it was in a 
 dangerous condition, if he passes under such ceiling ; it being 
 necessary for him so to do in entering and leaving the house.^ 
 
 § 144. Entering Premises of Another : Obligation to nse 
 Senses. — It has been stated that one who enters a place 
 where he is exposed to peculiar danger, — as at the crossing 
 of a railroad,-— is bound to use his hearing and eyesight, to 
 the best of his ability, in order to protect himself from injury .^ 
 And, generally, one who without excuse fails to use his senses 
 upon entering the premises of another, and by reason of such 
 failure is injured, will be held to be guilty of contributory 
 negligence.* But the degree of care to be exacted of him will 
 
 1 DoUard v. Koberts, 8 N. Y. Supp. N. E. Rep. 432 (1890). 
 
 ^ See § 120, ante, notes and cases cited ; Shaw v. Boston & Worcester 
 R. R., 8 Gray, 45^ 73 ; Sprow v. Boston & Albany R. R. 163 Mass. 330. 
 
 * Where the workmen who had loaded a freight car in the defendant's 
 mills were required to propel it by hand out into the yard, and the de- 
 fendant had caused a ditch to be dug across the track, the fact that the 
 plaintiff was puUing upon the front end of the car with his face towards 
 the ditch, in broad daylight, and that the ditch was plainly visible to one 
 ■who looked towards it, was held by a majority of the court not to show 
 conclusively that the plaintiff was guilty of contributory negligence, it 
 appearing that, in doing his work, he must necessarily lean forward as 
 he walked. Field, C. J., said: " The most formidable argument is that 
 as it was daylight and, as the ditch was visible, and directly across his 
 path, he would, if he had used due care, have seen it when hauling the car 
 towards it, and would have avoided it. . . . His attention was necessarily 
 more or less directed to his own work, which would naturally require him 
 to lean forward and bend down towards the track. The car moving con- 
 stantly forward would somewhat impair his freedom of action if he came 
 upon the ditch without knowing beforehand that it was there; and it is 
 impossible to say as matter of law that he was careless in putting himself 
 in the position he was in, if he did not know of the ditch." Gustafsen r. 
 ' Washburn & Moen Manuf'g Co., 153 Mass. 468. In Illinois, an instruc- 
 tion to the effect that failure to look to see where one was going was con- 
 tributory negligence was held erroneous, the question of negligence, in 
 that State, being considered one of fact for the jury. Chicago r. McLean, 
 133 HI. 148. Where one in charge of carloads of stock, walking on top 
 of a moving train, as was customary, and not looking forward, was struck 
 by a bridge, he was held not to be, as a matter of law, guilty of contribu- 
 tory negligence. Chicago, M. & St. P. R. R. v. Carpenter, 56 Ped. Rep. 
 
§§ 143-144.] NEGUGENCB OP PLAINTIFF. 263 
 
 vary in proportion with the actual danger of his surroundings 
 and his own knowledge of such danger ; so that circumstances 
 which in one case might well furnish an excuse for the plain- 
 tiff's failm-e to use his eyesight, in another would not relieve 
 him from the imputation of negligence. And it is obvious 
 that the plaintiff will be held bound to a closer watchfulness if 
 he is or ought to he aware of the presence of some special 
 peril, than if he enters a place in fact dangerous, supposing it 
 to be safe.^ So, if the business upon which the plaintiff enters 
 the premises is such as tends to distract his attention from 
 his surroundings, and he has no reason to apprehend danger, 
 the fact that his attention is so diverted may not prevent him 
 from recovering for injuries received by reason of the unex- 
 pected danger.^ As to travellers in the public highways, the 
 strict obligation to use the senses of sight and hearing may be 
 modified by the consideration that, ordinarily, the traveller 
 has the right to assume that the public way or sidewalk is 
 reasonably safe. So it has generally been held where acci- 
 dents have occurred from a traveller falling into a hole or 
 opening in the sidewalk, or coming into contact with an ob- 
 
 451, 5 C. C. A. 551. To the general rule, as stated in the text, see Pennsyl- 
 vania R. R. V. Bell, 15 Atl. Rep. 561 (Penn. 1888) ; Bertelson v. Chicago, 
 Milwakee & St. P. R. R., 40 N. W. Rep. 531 (Dak. 1888) ; Gaenther v. 
 St. Louis, Iron Mt. & Southern R. R., 95 Mo. 286. 
 
 ^ It is not necessarily negligence for one having business there to enter 
 premises where a sign is posted " Beware of the dog." Sylvester v. Maag, 
 155 Penn. St. 225. 
 
 * Thus where the defendant placed an unloaded freight car on its side 
 track to be loaded by the plaintiff to be shipped over the defendant's road, 
 and, while the plaintiff was engaged in loading the car, the defendant 
 backed an engine upon the side track without warning, and ran into the 
 car and injured the plaintiff, it was held that the plaintiff had a right to 
 give his undivided attention to the work in which he was engaged, and to 
 assume that the defendant would not disturb him without notice or 
 warning. Gessley v. Missouri Pacific R. R., 32 Mo. App. 413. A person 
 in the defendant's railroad yard on business who is struck by a car while, 
 standing on a track with his back towards the only direction of danger, is 
 guilty of contributory negligence. Diebold v. Pennsylvania R. R., 14 Atl. 
 Eep. 576 (N. J. 1888). By P. L., N. J., 1869, p. 806, Revision, p. 920, 
 § 67, it was provided that one injured while standing on a railroad 
 track shall not recover against the road. It was held that this provision 
 applies to persons standing on branch, as well as on main tracks. Ibid. 
 
264 PERSONAL INJURIES. [CHAP. V. 
 
 struction placed upon it, or slipping upon ice thereon, that 
 the question of his contributory negligence is for the jury, 
 although the plaintiff might have seen the danger, or his 
 inability to see it was the result of his own act, as by approach- 
 ing it in the darkness.^ 
 
 § 145. niustrationa of the Principles stated. — It is held to 
 be contributory negligence to enter a building in the dark 
 unnecessarily. Thus where the plaintiff, by the defendant's 
 permission, but not upon business, entered the defendant's 
 building and fell into the well-hole of a staircase, and was 
 injured. Pollock, 0. B., said : " It is every one's duty to take 
 care of his own safety, and not to go anywhere without a 
 light, so as to know whither he is going and what dangers he 
 is likely to meet." ^ And, the plaintiff being a mere licensee, 
 it was held that it was not the duty of the defendant to light 
 the passage or to see that the premises should be any different 
 from what they were.^ But the rule may be different when 
 the plaintiff enters the premises on business. Thus where the 
 plaintiff went to the defendant in the evening to buy oats, 
 and the parties went together in the dark to the upper floor 
 of the granary to procure them, and the plaintiff while walk- 
 ing about the floor in the dark fell into a hole and was in- 
 jured, it was held that he was not, as matter of law, barred 
 from a recovery.* Where the plaintiff had dined in the 
 defendant's eating-house, and, on leaving, opened the wrong 
 door, and, without looking, walked into a cellar-way and was 
 injured, it was held that she was guilty of contributory negli- 
 
 1 Graves v. Battle Creek, 95 Mich. 266; Mackie v. West Bay City, 106 
 Mich. 242 ; Cumiskey v. Kenosha, 87 Wis. 286 ; Lichtenberger v. Meri- 
 den, 91 Iowa, 45 ; New York Life Ins. Co. ». Savage, 58 Fed. Kep. 338, 7 
 C. C. A. 260, 19 U. S. App. 197. See § 164, post, and cases cited. 
 Where one fell into a man-hole in a street, without looking, and no ex- 
 cuse for his failure to look appeared, he was held to be, as matter of law, 
 guilty of contributory negligence. Lumis v. Philadelphia Traction Co., 
 181 Penn. St. 268. 
 
 ^ Wilkinson v. Farrie, 9 Jur. (n. s.) 280. See Maguire v. Little, 13 
 Atl. Rep. 108 (R. L 1888). 
 
 " Wilkinson v. Farrie, 1 H. & C. 633. 
 
 * Rerce v. Whitoomb, 48 Vt. 127. 
 
§§ 144-145."] NEGLIGENCE OF PLAINTIPP. 265 
 
 gence.^ But where the plaintiff went to the defendant's store 
 to buy goods, and walked up the store without looking to see 
 where she was going, her attention feeing directed to articles 
 in the show-case, and she stepped into an open register-hole 
 in the floor and was injured, it was held that the question of 
 her negligence was for the jury.^ It was held that a person 
 on a ship who sat down on a " bunker-hatch " where persons 
 were accustomed to sit, without looking to see if it was closed, 
 and, it being open, fell into the hold and was injured, was 
 guilty of contributory negligence.^ Where the plaintiff, an 
 employee of the defendant, fell into an unguarded elevator 
 shaft, in a room so dark that the opening could not be per- 
 ceived until it was reached, it was held that he was not in the 
 exercise of due care, it appearing that he knew that the open- 
 ing was somewhere in the room, although he did not know 
 exactly where, and that he was looking for it but walking 
 very quickly.* And where the plaintiff walked into a similar 
 shaft left negligently unguarded in the defendant's factory, in 
 broad daylight, there being nothing to prevent him from ap- 
 preciating the danger had he used his eyesight, it was held 
 that he was negligent, although he was ignorant of the exist- 
 ence of the shaft ; and the court said : " A person who pays 
 little heed to his surrounding, and goes hither and thither in 
 an absent-minded manner, or thinking only of some particular 
 object, and shutting his eyes to everything else, is guilty 
 of . . . that want of ordinary care which the safety of society 
 requires all sane persons of mature age to exercise." ^ But 
 where the plaintiff had reason to suppose that the door into 
 the shaft had been opened by the defendant's servant, whose 
 
 1 GafEney v. Brown, 150 Mass. 479, and see Jucht v. Bebrens, 7 N. Y. 
 Sup. N. E. Rep. 195 (1889) ; James v. Ford, 9 N. Y. Sup. N. E. Rep. 504 
 (1890) ; Schmidt v. Bauer, 80 Cal. 565. 
 
 ^ Hendricken v. Meadows, 154 Mass. 599. See Drennan v. Grady, 
 167 Mass. 415. 
 
 8 The Sir Garnet Wolseley, 41 Fed. Rep. 896. 
 
 * Taylor v. Carew Manufg Co., 143 Mass. 470, and see Eossraan v. 
 Stutz, 5 N. Y. Sup. N. E. Rep. 764. See § 113, ante, n. 2. 
 
 * Hutchins v. Priestly Express Co., 61 Mich. 252, and see Bedell v. 
 Berkey, 76 Mich. 435; Huey v. Gahlenbeck, 121 Penn. St 238; Harris 
 t. Commercial Ice Co., 153 Penn. St. 278. 
 
266 PERSONAL INJURIES. [CHAP. T. 
 
 duty it was to attend to it, and so stepped into the shaft with- 
 out looking to see if it was safe, it was held that the plaintiff 
 was not, as matter of law, to be charged with negligence ; ^ 
 and so where the plaintiff had reason to believe that the safety 
 devices attached to a freight elevator were in working order, 
 which was not the case, and so trusted himself to the elevator 
 and was injured.^ 
 
 SECTION m. 
 
 OP PERSONS UNDER DISABILITY. 
 
 § 146. Physical Defects. — A person feeble, maimed, or suf- 
 fering from any physical defect or disability, is bound to exer- 
 cise a proportionate care and watchfulness in circumstances 
 which are rendered peculiarly dangerous to him by reason of 
 his defect.* Thus deafness imposes upon one about to cross 
 a railway track the duty of using increased vigilance in look- 
 ing for danger, and his failure to watch for approaching trains 
 will be negligence.* The mere fact of the existence of a dis- 
 ability is not conclusive to show that the plaintiff was negli- 
 gent, and, ordinarily, the question will be submitted to the 
 jury to be determined as one of fact. Thus, in an action for 
 injuries caused by a defective street crossing, the fact that the 
 plaintiff was short-sighted and wore spectacles is material as 
 bearing upon the question of his negligence ; ^ and it is held 
 generally that it is not, as matter of law, negligent for a blind 
 man to walk the public streets unattended, if he is acquainted 
 with the locality and has been in the habit of walking there.^ 
 
 1 Tousey v. Roberts, 114 N. Y. 312. 
 
 '■' Carey v. Arlington Mills, 148 Mass. 338. 
 
 8 Cleveland, C. & C. R. R. v. Terry, 8 Ohio St. 570; Simms v. South 
 Carolina R. R., 26 S. C. 490. 
 
 * International & G. N. R. R. v. Garcia, 75 Tex. 583; Tiemey v. Chio. 
 & N. W. R. R., 84 Iowa, 641; PhiUips v. Detroit, G. H. & M. R. R., Ill 
 Mich. 274 ; Schexnaydre v. Railroad, 46 La. Ann. 248. So, as to crossing 
 a street railway. Schnlte v. N. O. City, &c. R. R., 44 La. Ann. 248. 
 
 6 Austin V. Ritz, 72 Tex. 391. 
 
 « Sleeper v. Sanborn, 52 N. H. 244; Smith v. WOdes, 143 Mass. 556; 
 NefE o. Wellesley, 148 Mass. 487. In Davenport v. Ruckman, 37 N. Y. 
 
§§ 145-147.] NEGLIGENCE OP PLAINTIFF. 267 
 
 But it is obvious that there may be circumstances which would 
 make it negligence for the plaintiff to go where a person not 
 suffering from disability might go without negligence. Thus 
 it is apprehended that it would clearly be negligent for a person 
 blind and deaf to attempt to cross a crowded street in a city, 
 and it has been held to be contributory negligence for a deaf 
 man to walk on a railway track.^ Upon this subject it is said 
 that any person of any age has a right to the use of the public 
 highway either on foot or with any kind of vehicle or horses. 
 But these rights are to be exercised with reference to the 
 abilities of each person to take care of himself and of the 
 rights of others. A blind, lame, or deaf person has a right to 
 walk where other persons, not disabled, have the right. So it 
 has been held that it is not, necessarily, contributory negli- 
 gence for one almost blind to travel on a railway without an 
 attendant.^ But, in view of the incapacities for taking care 
 of himself under which a blind man suffers, and of which he 
 must be conscious, the exercise of ordinary caution requires 
 that he should conduct himself with reference to his inability 
 to see.^ And if he be unable to hear, so that he cannot take 
 warning by the hearing of what is about him, or likely to put 
 him in jeopardy, special wariness on his part, considering his 
 infirmity of hearing, would be nothing more than the ordinary 
 prudence of a man who cannot take of himself by listening.* 
 
 § 147. Intoadoatioii. — The mere fact that the plaintiff was 
 intoxicated at the time of the injury is not sufficient to charge 
 him with contributory negligence.^ But if it appears that the 
 
 568, it was held that the question for the jury was whether it was so im- 
 proper for the plaintiff she being partially blind, to go into the street 
 unattended, that this would be contributory negligence on her part. See, 
 also, Sheridan r. Brooklyn, &c. R. R., 36 N. T. 39 ; Ferris v. Union Ferry 
 Co., 36 N. Y. 819; Rennick v. New York Central R. R., 36 N. Y. 132; 
 Ernst r. Hudson River R. R., 35 N. Y. 91. 
 
 5 Kennedy v. Denver, St. P. & P. R. R., 10 Col. 493, Beck, C. J., dis- 
 senting. 
 
 a Railway Co. v. Maddrey, 57 Ark. 306. 
 
 « Florida Central R. R. v. Williams. 37 Fla. 406. 
 
 ♦ NefE V. Wellesley, 148 Mass. 487, 491; Hall v. West End Street 
 Railway, 168 Mass. 461. 
 
 « PluckweU V. Wilson, 5 C. & P. 379; Wynn v. Allard, 5 W, & S. 524; 
 
268 PEESONAL INJURIES. [CHAP. V. 
 
 intoxication was the proximate cause of the accident, without 
 which it could not have happened, then the plaintiff is to be 
 charged with contributory negligence, and cannot recover for 
 the injury.^ So where an intoxicated person was injured in 
 attempting to drive over a washout, which he could easily have 
 seen and avoided had he been sober, it was held that his driv- 
 ing in that place, in an intoxicated condition, was contributory 
 negligence.2 A like rule has been held where the intoxicated 
 person was walking on the track of a railroad and was there 
 killed, it being impossible to stop the train in time to save his 
 life ; 3 but where it appeared that the engineer of the defendant 
 had poor eyesight, it was held that the question of the plain- 
 tiff's negligence was for the jury.* It is clear that the fact 
 that the plaintiff was intoxicated is not an excuse for failure 
 on his part to use the care to be required of a sober man, 
 under the same circumstances.^ 
 
 Dickson v. HoUister, 123 Penn. St. 421 ; Hershey v. Millcreek Commis- 
 sioners, 9 Atl. Kep. 452 (Pa. 1887) ; Harrington v. N. T. C. & H. K. R. R., 
 4 N. Y. Sup. N. E. Rep. 640 (1889) ; Ford v. Umatila County, 15 Or. 313; 
 Enright V. Atlanta, 78 Ga. 288; East Tennessee & W. N. C. R. R. v. 
 Winters, 85 Tenn. 240; Maguire v. Middlesex R. R., 115 Mass. 239; 
 Holland v. West End Street Railway, 155 Mass. 387 ; Baltimore & Ohio 
 R. R. V. State, 81 Md. 371; Hankinson v. Charlotte, Sec. R. R., 41 S. C. 
 1; Northern Pac. R. R. v. Croft, 29 U. S. App. 687. 
 
 1 Lynch v. New York, 47 Hun, 524 ; and see Fitzgerald v. Weston, 52 
 Wis. 354; Meyer v. King, 72 Miss. 1. Where the plaintifl sued for in- 
 juries caused by falling down an embankment in the night, and it 
 appeared that he was an inmate of an inebriate asylum and had been 
 drinkiug all day, and that the night was clear and star-light, and that one 
 could see two hundred feet ahead at the time of the accident, it was held 
 that the plaintiff had failed to show that he was free from contributory 
 negligence. Monk v. New Utrecht, 104 N. Y. 552. 
 
 » Woods V. Tipton Commissioners, 27 N. E. Rep. 611 (tud- 1891). 
 
 * Memphis & Charleston R. R. v. Womack, 84 Ala. 149. 
 
 * Troy V. Cape Fear & Y. V. R. R., 99 N. C. 298. 
 
 6 Price V. Phil., W. & B. R. R., 84 Md. 506, and see Louisville & N. R. 
 R. V. Johnson, 108 Ala. 62. 
 
§§ 147-148.] NEGUGENCE OP PLAINTIFF. 269 
 
 SECTION IV. 
 OF INFANTS AND THEIB PABENTS OE GTJAEDIANS. 
 
 § 148. General Rule. — The degree of care to be required of 
 a child, placed in circomstances of danger, is to be determined 
 by considering tlie maturity and capacity of the child in rela- 
 tion to the circumstances of the case ; ^ and it is generally 
 held that a child is not to be held to the same degree of care 
 as an adult* The question is whether the child exercised 
 such care as was reasonably to be expected from a person 
 of his age and capacity, and the mere fact that he was old 
 enough to know the probable consequences of the act which 
 caused his injury will not conclusively determine that he was 
 negligent, since it is not to be expected that a child will 
 exercise the measure of prudence in avoiding danger that is 
 to be expected of an adult. Thus where a boy thirteen years 
 old struck a dog, and thereby incited the dog to bite him, it 
 was said : " If the court had ruled that, if the plaintiff was 
 old enough to know that striking the dog would be likely to 
 
 1 Lynch v. Nurdin, 1 Q. B. 29 ; Boss v. Litton, 5 C. & P. 407 ; Wright 
 V. Maiden & Melrose B. K., 4 Allen, 283; Hayes v. Norcross, 162 Mass. 
 546 ; Bobinson v. Cone, 22 Vt. 213 ; Daley v. Norwich & Worcester K. R., 
 26 Conn. 59 ; Ranch v. Lloyd, 31 Penn. St 358 ; Gillespie o. McGowan, 
 100 Penn. St 144; Washington & Georgetown R. R. v. Gladmon, 82 U. S. 
 401 ; Brown v. European & N. A. Railway, 58 Maine, 384 ; Wendell v. 
 New York Central & H. R. B. R., 91 N. T. 420 ; Lndwig v. Pillsbnry, 35 
 Minn. 256 ; Achtenhagen v. Watertown, 18 Wis. 331 ; Messer ». Chicago, 
 B. L & Pac. B. B., 68 Iowa, 602 ; Chicago, R. L & Pac. R. R. v. Eininger, 
 114 Dl. 79 ; Murray r. Richmond & Danville R. R., 93 N. C. 92. 
 
 ' See Mangam i'. Brooklyn R. R., 38 N. Y. 455' Thurber v. Harlem 
 B. R., 60 N. Y. 326; Ihl v. Forty Second St. R. R., 47 N. Y. 317; Cos- 
 teUo V. Syracuse R. B., 65 Barb. 92 ; Powers v. Harlow, 57 Mich. 107 ; 
 Strong r. Stevens Point, 62 Wis. 255 ; Benton v. Chicago, R. I. & Pac. 
 R. R., 55 Iowa, 496 ; Muehlhansen v. St Louis R. B., 91 Mo. 382 ; Union 
 Pacific B. B. p. Dunden, 37 Kan. 1 ; Miller v. Pennsylvania B. R., 8 Atl. 
 Bep. 209 (Penn. 1887); Central Trust Co. v. Wabash, St L. & P. E. B., 
 31 Fed. Bep. 246. In this case the court assumed as matter of law, that 
 an infant of six: years old could not be guilty of contributory negligence.. 
 But see § 95, ante, notes and cases cited. 
 
270 PERSONAL INJURIES. [CHAP. V. 
 
 incite him to bite, he could not recover, it would have been 
 erroneous. This is not the true test. It entirely disregards 
 the thoughtlessness and heedlessness natural to boyhood. The 
 plaintiff may have been old enough to know, if he stopped to 
 reflect, that striking a dog would be likely to provoke him to 
 bite, and yet, in striking him, he may have been acting as 
 a boy of his age would ordinarily act under the same circum- 
 stances." ^ The application of the general rule is modified in 
 those cases in which it is held that the owners of property 
 owe a peculiar duty towards infants, although trespassers ; ^ 
 and there are cases which hold that infants of tender years 
 are to be considered, as matter of law, incapable of contribu- 
 tory negligence ; * but the better opinion seem to be that the 
 age of the infant is only a fact to be considered by the jury, 
 in connection with the other facts of the case, in determining 
 the question of negligence.* It has been held that a different 
 rule obtains when the right of the infant to sue is derived 
 from a special contract made in his behalf by an adult in 
 charge of him,^ but, unlesst his exception is to be considered 
 as founded upon the doctrine of " imputed negligence," ® it 
 would seem to rest upon the erroneous assumption that the 
 right of the plaintiff to sue in tort rests solely upon his con- 
 
 ^ Plumley v. Birge, 124 Mass. 57, and see Munn v. Reed, 4 Allen, 431 ; 
 Mulligan v. Curtis, 100 Mass. 512 ; Lynch v. Smith, 104 Mass. 52. 
 
 " See §§ 75 e« seq., ante. 
 
 8 See Baker v. Flint & Pere Marquette R. R., 68 Meh. 90, and § 95, 
 ante, and cases cited. 
 
 * See Singleton v. Eastern Counties Railway, 7 C. B. (n. s.) 287; 
 Daley v. Norwich & Worcester R. R., 26 Conn. 591 ; Birge v. Gardiner, 
 19 Conn. 507 ; Elkins v. Boston & Albany R. R., 115 Mas|. 190; Dowd 
 V. Chicopee, 116 Mass. 93; Brown v. Sherer, 155 Mass. 88; Johnson v. 
 Kelleher, 155 Mass. 125. A girl of eleven years of age entering a railroad 
 crossing after the gates are closed, on her way to school, and so killed by 
 a passing train, is guilty of contributory negligence. Marden v. Boston & 
 Albany R. R. , 159 Mass. 393. And so is a boy of ten years who carelessly 
 steps into an open man-hole in a public street. Casey v. Maiden, 163 Mass. 
 507. See, also, Howell v. 111. Central R. R., 75 Miss. 242; McGrell v. 
 Bufialo O. B. Co., 153 N. Y. 265. 
 
 6 See Waite v. Northeastern Railway, El. Bl, & El. 718, as cited § 107, 
 ante. 
 
 » See § 107, ante. 
 
§§ 148-149.] NEGLIGENCE OF PLAINTIFF. 271 
 
 tract with the defendant.^ The question whether an infant is 
 of sufficient age and capacity to appreciate circumstances of 
 danger is generally one of fact ; ^ but when the evidence on 
 the question of contributory negligence or the assumption of 
 risk is undisputed, and the inferences arising therefrom cer- 
 tain, the question need not be submitted to the jury.^ 
 
 § 149. Negligence of Parent or Guardian. — It has already 
 been stated that, in some jurisdictions, it is held that the 
 negligence of theparent, or other person in charge of a child 
 not sui juris, has the same effect to prevent a recovery for an 
 injury to the child that the like negligence on the part of the 
 child himself would have had.* In such cases, ordinary rules 
 are applied to determine the question of contributory negli- 
 gence, and the parent will be bound to that degree of care 
 which ordinary men would exercise in like circumstances.* If 
 the undisputed facts are conclasive of negligence, it will be 
 held, as matter of law, that the plaintiff cannot recover. 
 Thus it is negligence to allow a young child to wstnder unat- 
 tended about the streets of a large city,^ or upon the track of 
 a railroad, and the mere fact that the parent or guardian was 
 ignorant of the whereabouts of the child is not material upon 
 the issue.'' The question whether the child was of such age 
 
 1 See §§ 3, 5, ante. 
 
 2 Luebke v. Berlin M. Works, 88 Wis. 442. 
 8 Herold v. Pfister, 92 Wis. 417. 
 
 * See § 107, ante. 
 
 6 Downs V. New York Central R. R., 47 N. Y. 83; Cosgrove v. Ogden, 
 49 N. Y. 255; Mullency v. Spence, 15 Abb. Pr. (n. s.) 519. 
 
 8 Philadelphia & Reading R. R. v. Long, 75 Penn. St. 265; Gavin v. 
 Chicago, 97 111. 66 ; and see Kerr v. Forgue, 54 111. 482 ; Chicago ji. Major, 
 18 lU. 439 ; Sheridan v. Brooklyn, &c. R. R., 36 N. Y. 39. 
 
 ' Cauley v. Pittsburg, C. «e St. L. R. R., 95 Penn. St. 898; Long v. 
 Phil. & R. R. R., 75 Penn. St. 257 ; Dunsheath v. Pittsburg, &c. Traction 
 Co., 161 Penn. St. 124. It is held that it is not, prima Jade, negligence for 
 a mother to permit her child, four years old, to play with a strange dog. 
 Mann v. Reed, 4 Allen, 131. Where the parent left the child at the door 
 of a store whUe she went into the store on business, and a counter left 
 outside fell upon the child and injured it, it was held that the question of 
 the contributory negligence of the parent was for the jury. Euuz v. Troy, 
 104 N. Y. 344. 
 
272 PERSONAL INJUKIE3. [CHAP. V. 
 
 and capacity as safely to be trusted abroad without a guardian 
 is always one of fact for the jury.^ It has been held, and it 
 would seem with good reason, that if a child, although too 
 young safely to be trusted to his own guidance, is injured, he 
 may nevertheless recover for his injury if, in fact, he was in 
 the exercise of due and proper care at the time of the acci- 
 dent, and the defendant was in fact culpably negligent ; for in 
 such a case, the fault of the defendant, not the negligence of 
 the parent or guardian, is the proximate cause of the injury, 
 and the law is inclined to regard as the proximate cause the 
 nearest culpable act in the chain of causation. So, for ex- 
 ample, " it does not necessarily follow, because a parent negli- 
 gently suffers a child of tender years to cross a street, that 
 therefore the child cannot recover. If the child, without being 
 able to exercise any judgment in regard to the matter, yet 
 does no act which prudence would forbid, and omits no act 
 which prudence would dictate, there has been no negligence 
 which was directly contributory to the injury. The negligence 
 of the parent in such a case would be remote. But if the 
 child has not acted as reasonable care adapted to the circum- 
 stances of the case would dictate, and the parent has also 
 negligently suffered him to be there, both these facts concur- 
 ring constitute negligence which directly and immediately 
 contributes to the injury." ^ 
 
 SECTION V. 
 
 OP EMPLOYEES. 
 
 § 150. General Rule applied : Modification of it. — In actions 
 brought by the servant against his master for injuries received 
 by the servant in the course of his employment, through the 
 negligence of the master, the ordinary rules are applied in 
 
 1 Lynch v. Smith, 104 Mass. 52; Powers v. Quincy & Boston Street 
 Railway, 163 Mass. 5 ; Hewitt v. Taunton Street Railway, 167 Mass. 483. 
 
 ' Lynch v. Smith, 104 Mass. 62, and see §§ 07-101, ante, notes and 
 cases cited. 
 
§§ 149-150.] NEGLIGENCE OP PLAINTIFF. 273 
 
 determining the question of contributory negligence on the part 
 of the servant.* But the general rule is, as to the employee, 
 subject to an important qualification ; since an employee, act- 
 ing in the strict line of his duty, may properly do that which, 
 in a stranger, would clearly be negligent, but which may not 
 estop the employee from recovering against his master.^ Thus 
 it was held that it was not negligent for the employee of a 
 railroad to step upon the track in the course of his duty, in the 
 way of a train backing down upon him, he having reason to 
 believe that the train would be stopped before reaching him.' 
 But the application of this rule is limited strictly to cases of 
 necessity, and if the' employee expose himself to a danger not 
 in the line of his duty, he will be liable for his contributing 
 negligence in like manner as a stranger.* But the employee 
 will not, as a matter of law, be precluded from a recovery, 
 merely because he exercises his employment knowing the dan- 
 gers to which it exposes him, or the existence of defects 
 
 > Goodfellow V. Boston, Hartford & Erie R. E., 106 Mass. 461; Ladd 
 V. New Bedford R. R., 119 Mass. 412; Lovejoy v. IJoston & Lowell R. E., 
 125 Mass. 79 ; Monaghan v. New York Central & H. R. R. R., 45 Hun, 
 113 ; Powers v. New York, L. E. & W. R. R., 98 N. Y. 274 ; Odell v. New 
 York Central & H. R. R. R., 120 N. Y. 323. 
 
 » See Maguire v. Fitchburg R. R., 146 Mass. 379; Babcock ». Old 
 Colony R. R., 150 Mass. 467. An employee is not bound, as matter of 
 law, exactly to know and appreciate the risk of the work in which he is 
 engaged, Lawless ». Connecticut River R. R. , 136 Mass. 1 ; Ferren v. 
 Old Colony R. R., 143 Mass. 197; for a servant, knowing the facts, may 
 be wholly ignorant of the risks. Clarke v. Holmes, 7 H. & N. 937. So 
 the fact that an employee on machinery knows that such machinery has 
 not been guarded or protected by his master, as required by statute, is not 
 conclusive of a want of due care on the employee's part. Durrant v. Lex- 
 ington Coal Mining Co., 97 Mo. 62. See § 204, post. 
 
 ' Steele v. Central R. R. of Iowa, 43 Iowa, 109 ; Farley v, Chicago, Rock 
 Island & Pacific R. R,, 56 Iowa, 337 ; Schultz v. Chicago & North Western 
 E. R., 44 Wis. 638. See Halliburton v. Wabash R. R., 58 Mo. App. 27; 
 Monahan ». Clay & Coal Co., 58 Mo. App. 68 ; Warner v. Chic, R. I. & 
 Pac. R. E., 62 Mo. App- 184. The measure of risk which a railroad fire- 
 man ought to incur by remaining on his engine and helping a sleeping 
 engineer to run a train, is only that which his duty to the company imposes 
 upon him. Carroll v. East Tennessee, V. & G. E. E., 82 Ga. 452. 
 
 * Murphy v. Chicago, Eock Island & Pacific R. E., 38 Iowa, 539, 45 
 Iowa, 661 ; Jones v. Baltimore & Potomac E, E., 95 U. S. 439. 
 
 18 
 
274 PERSONAL INJURIES. [CHAP. T. 
 
 in the means or appliances furnished him for doing it ; * nor 
 because at the time of the accident he was acting in violation 
 of the rules of his employer, unless such violation contributes 
 to the injury .2 The application of the rules stated is often 
 modified by the application of the doctrine of "Employees' 
 Risk," which will be found considered elsewhere.^ But when 
 the right of the employee to recover from his master for in- 
 juries received in the course of his employment depends only 
 upon the question whether the servant was in the exercise of 
 due care, like rules are applied as in cases where the action is 
 between parties not in privity.* 
 
 § 151. Illustrations of the Principle as to Railroad Employees. 
 — It has been held that the question of the contributory neg- 
 ligence of a railway employee is for the jury if such employee, 
 in the line of his duty, fails to look for an approaching train, 
 by which he is injured, since his attention may reasonably be 
 diverted from it ; ^ or if, being required to do so by his supe- 
 rior, he boards a moving train in the line of his duty;® or if 
 he alights from a train moving at a rate of not more than four 
 and one-half miles an hour.'^ The employee will be bound to 
 the exercise of a degree of care proportioned to the circum- 
 stances of danger into which his employment leads him, and 
 
 ^ Snow V. Housatonic R. K.., 8 Allen, 441. 
 
 ^ Ford V. Fitchburg R. R., 110 Mass. 240. It is held in Massachusetts, 
 that if the employment in which the servant is engaged is unlawful, as 
 being carried on on the Lord's Day, in violation of a statute, the unlawful 
 act of the servant is a contributing cause of the injury, so that he will be 
 debarred from a recovery. See Day v. Highland Street Railway, 135 
 Mass. 113 ; Read v. Boston & Albany R. R., 140 Mass. 199 But this 
 would seem to be in contravention of the general rule that the unlawful 
 act of a plaintiff shall not debar him from i^ recovery unless it is shown, 
 in fact, to have directly contributed to the injury. See § 141, ante. 
 
 » See §§ 203 et sea., post. 
 
 * Riley c. Connecticut River R. R., 135 Mass. 292 ; Blanchette v. Bor- 
 der City Mills, 143 Mass. 150; Barstow ti. Old Colony R R., 143 Mass. 
 535; Spicer v. South Boston Iron Co., 138 Mass. 426 ; Eossman v. Stutz, 
 5 N. Y. Sup. N. E. Rep. 764 (1889). 
 
 6 Collins V. New York, N. H. & H. R. R., 55 N. Y. S. C. 31. 
 
 « Pullutro V. Delaware, L. & W. R. R., 7 N. Y. Sup. N. E. Rep. 510 
 (1890). 
 
 » STew York, P. & N. R. R. v. Colbourn, 69 Md. 360. 
 
§§ 150-151.] NEGLIGENCE OP PLAINTIFF. 275 
 
 the nature of his employment and the demand which it makes 
 upon his attention are always to be considered in estimating 
 his obligation, although the fact that the act alleged to be 
 negligent was done in compliance with an established custom 
 upon the railroad will not, alone, excuse it.' Where a brake- 
 man, in the line of his duty, swung himself out from between 
 two cars without looking, as he might have done, to see 
 whether there were any obstructions near the track which 
 might injure him, and through his failure to look was injured 
 by such obstructions, it was held that he was guilty of contrib- 
 utory negligence.^ But, in a similar case in which the ele- 
 ment of negligence did not appear, it was held that the 
 plaintiff was not debarred from a recovery.* So, where a 
 freight brakeman in the discharge of his duty was engaged 
 in coupling cars, and was injured by being struck by a piece 
 of timber which projected over the end of one of the cars, it 
 was held that, as he had an opportunity of seeing and avoid- 
 ing the danger, he was guilty of contributory negligence and 
 could not recover for his injuries.* It was held to be negli- 
 gence for a railroad brakeman to couple cars upon the side of 
 the train which was exposed to danger, when he might as well 
 have performed that duty upon the other side of the train ; ^ 
 but, generally, it is not negligence for a railway employee to 
 go between moving cars, in the line of his duty, for the pur- 
 pose of uncoupling them ; ^ and it is held not to be negligence 
 
 1 George v. Mobile & Ohio R. K., 109 Ala. 245, and see Gordy v. New 
 York, P. & N. R. R., 75 Md. 297. 
 
 2 Thompson v. Boston & Maine R. R., 153 Mass. 391. See Vining v. 
 New York & N. E. R. R., 167 Mass. 539. 
 
 8 Babcock v. Old Colony R. R., 150 Mass. 467. 
 
 * Lothrop V. Fitchbnrg R. R., 150 Mass; 425. In a very similar case 
 in the same State it was also held that the plaintifE could not recover, but 
 this was upon the ground that, whether or not he was in the exercise of 
 due care, there could be no doubt that the risk was assumed by the plain- 
 tifE as an employee. Boyle v. New York & New England R. R., 151 Mass. 
 102. For a case in which an employee running an elevator was held to 
 be debarred from a recovery for injuries received by him in the course of 
 his employment, by reason of his lack of due care in operating the ele- 
 vator, see Murphy v. Webster, 151 Mass. 121. 
 
 » Lothrop V. Fitchburg R. R., 150 Mass. 425. 
 
 s Eastman v. Lake Shore & M. S. R. R., 101 Mich. 597; Curtis v. 
 Chic. & N. W. R. R.. 95 Wis. 460. 
 
276 PERSONAL iNJUEIES. [CHAP. T. 
 
 to make a coupling with defective apparatus, although the 
 employee knows it to be defectiye, if he also knows that a 
 collision must ensue if the coupling is not made, and, in mak- 
 ing it, he acts under the orders of the engiueer of the train.^ 
 A brakeman acting under orders to catch and climb a rap- 
 idly moving car, is not guilty of negligence in so doing.^ 
 A railway employee whose station is the top of a moving 
 car, is not bound constantly to bear in mind the points at 
 which the train will pass under bridges.* A railway employee 
 is not bound to anticipate extraordinary and improbable acci- 
 dents* It is not necessarily contributory negligence for a 
 railroad switchman to ride on the foot-board of the switch 
 engine to which he is attached, while on duty;* or for a 
 ' brakeman to stand on the cross-bar of the pilot of an engine 
 to make a coupling, this being necessary in order to do the 
 work.^ But it was held to be negligence for an employee to 
 jump from a moving engine, in front of it, and between the 
 rails, when he might as easily have jumped to one side of the 
 track.'^ In an action by a brakeman against a railroad com- 
 pany for injuries received by being struck by a bridge while 
 he was standing on the roof of a car engaged in his work, it 
 appeared that the bridge was too low for him to pass under 
 it while standing upright, and that he was familiar with the 
 bridge, and was standing with his back to the engine, when 
 he knew that the train was approaching the bridge. It wis 
 
 1 Strong V. 111. Cent. R. R., 94 Iowa, 380. 
 
 2 Fox V. Chic, St. P. & K. C. R. R., 86 Iowa, 409 ; Harker «. Burling- 
 ton, C. R. & N. R. R., 88 Iowa, 409. But see Roul v. East Tenn., Va. & 
 Ga. R. R., 85 Ga. 197. 
 
 ' Wallace v. Central Vt. R. R., 138 N. Y. 302. 
 
 < McKee v. Chic, R. I. & Pac. R. R., 88 Iowa, 16. Where the plain- 
 tiff, a hrakernan, did not know of the defective blocking of a frog over 
 which he had to pass rapidly, in the line of his duty, it was held that the 
 question of his contributory negligence was for the jury. Kroener v. 
 Chic, M. & St. P. R. R., 88 Iowa, 16. It is held to be negligence for an 
 employee to get between the " deadwoods " of moving cars. Ala. Great 
 So. R. R. V. Richie, 111 Ala. 297. 
 
 6 Lockhart u. Little Rock & M. R. R., 40 Fed. Rep. 631. 
 
 « McDonald v. Mich. Cent. R. R., 108 Mich. 7. See Benage v. Lake 
 Shore & M. S. R. R,, 102 Mich. 72. 
 
 ' Dandie v. Southern PaclBc R. R., 42 La. Ann. 686. 
 
§§ 151-162.] NEGUGENCE OP PLAINTIPP. 277 
 
 held that he was guilty of contributory negligence.* It was 
 said to be negligence for a railway employee to jump upon a 
 moving train, when he might have got on to it while it was at 
 a standstill.^ 
 
 § 152. Reliance on Signals and Wcuninga. — A person en- 
 gaged in a dangerous employment has a right to rely upon 
 the customs which have obtained in the conduct of such 
 employment, in tiie way of warnings, signals, or other precau- 
 tions against danger on the part of his employer, or of his 
 fellow-servants as representing his employer ; and if, relying 
 upon such warnings, lie is injured by the failure to give them, 
 he is not therefore guilty of contributory negligence ; ^ but it 
 is held that a railway employee is not relieved of the duty of 
 using his eyes, although engaged in an occupation which 
 naturally draws his attention from approaching trains.* 
 Wliere the employee of a railroad, running a hand-car upon 
 its track, was negligently run down and injured by the de- 
 fendant's engineer, it was held that he was not, as matter of 
 law, negligent in not running his hand-car from the track, 
 which he might have done in time to avoid the collision, it 
 appearing that he was given to understand by the conductor 
 and engineer of the train which struck him that the train 
 would not start within double the time which actually elapsed 
 before he was struck .^ So the employee has a right to assume 
 that his feUow-employees will regard his own signals showing 
 his presence in a dangerous place, it being their duty so to 
 do.* But the fact that the employee acts in obedience to a 
 
 ^ WiJliams v. Delaware, Lackawanna & Western R. R., 116 N. T. 628. 
 
 2 Novock V. Michigan Central R. R., 63 Mich. 121. 
 
 ' ntis r. Chicago, Milwaukee & St. P. R. R., 40 Minn. 273; Anderson 
 c. Northern Mill Co., 42 Minn. 424; Howard v. Delaware & Hudson Canal 
 Co., 40 Fed. Rep. 19.5 ; and see Cincinnati, 1, St. L. & C. R. R. i>. Lang, 
 118 Ind. 579; Hobson v. New Mexico & A. R. R., 11 Pac. Rep. 545 
 (Ariz. 1890) ; Louisville & C. R. R. v. Utz, 133 Ind. 443; Richmond & D. 
 R. B. V. Thompson, 99 Ala. 471. 
 
 * Lynch v. Boston & Albany R. R., 159 Mass. 536. (But see Lake 
 Shore & M. S. R. R. v. Murphy, 33 N. E. Rep. 403.) 
 
 5 Hawley v. Chicago, Burlington & Quincy R. R. , 71 Iowa, 717. 
 
 6 Murphy v. New York Central & H. R. R. R., 118 N. Y. 527. 
 
278 PERSONAL INJURIES. [CHAP. V, 
 
 safety signal is not conclusive to show that fie is not negli- 
 gent, if the surrounding circumstances are such as would 
 show a prudent man that it is dangerous to rely and act upon 
 the signal.^ 
 
 § 158. Violations of Kales. — Generally, if an employee of 
 ordinary intelligence is injured by reason of his wilful disobe- 
 dience of written or yerbal orders, such disobedience being 
 clearly negligent, he cannot recover for his injury as against 
 his employer.^ So, when it is clear that the violation of a rule 
 of the employment, known to the plaintiff, was the proximate 
 cause of his injury, he will, as matter of law, be deemed 
 guilty of contributory negligence.^ But the mere fact of the 
 violation of the rule is not conclusive of negligence,* like 
 principles being applied as in the cases where the party 
 charged with negligence has been guilty of violation of a 
 
 1 Columbus & W. R. R. v. Bridges, 80 Ala. 448. 
 
 2 Callen ». National Sheet Metal Roofing Co., 114 N. T. 45 ; Karrer 
 V. Detroit, G. H. & M. R. R., 76 Mich. 400. 
 
 * Sedgwick v. Illinois Central R. R., 76 Iowa, 340; Alexander v. Louis- 
 ville & Nashville R. R., 83 Ky. 589; Louisville & Nashville R. R. v. Wil- 
 son, 88 Tenn. 316 ; Abend v. Terre Haute & I. R. R., Ill 111. 202 ; Quick 
 V. Indianapolis & St. Louis R. R., 130 111. 334 ; St. Louis, Iron Mt. & 
 Southern R. R. v. Rice, 51 Ark. 467 ; Prather v. Richmond & Danville 
 R. R., SO Ga. 427; Central Railroad & Bauking Co. v. Kitchens, 83 Ga. 
 83; Internationals G. N. R. R. v. Hester, 72 Tex. 40; Lake Erie & 
 Western R. R. v. Craig, 47 U. S. App. 647; Richmond & D. R. R. v. 
 Pannill, 89 Va. 552 ; Richmond & D. R. R. v. Dudley, 90 Va. 304 ; 
 White V. Louisville, N. O. & T. R. R., 72 MUs. 12. 
 
 * Louisville & Nashville R. R. v. Perry, 87 Ala. 392. So it is said 
 that the rules of a railway company requiring that engineers, when the 
 view is obscured, shall control their engines so that they can stop within 
 range of their vision ; that delayed trains must run with great caution ; 
 that all trains must approach stations with reduced speed; and that, in ap- 
 proaching switches, the greatest care must be taken ; do not increase the 
 liability of engineers, but simply call their attention to their common-law 
 duty of using due skill and diligence. Lake Shore & Michigan Southern 
 R. R. a. Parker, 131 111. 557. See Fairraan v. Boston & Albany R. R., 
 169 Mass. 170. In Sullivan v. Fitchburg R. R., 161 Mass. 125, it was 
 held by a majority of the court,, in favor of the defendant, that a rule of 
 a railroad, that wild trains " must run cautiously around curves and over 
 grade crossings, looking out for trackmen," was to be construed as hav- 
 ing reference to the safety of trains, not of the trackmen. 
 
§§ 152-153.] NEGLIGENCE OP PLAINTIFF. 279 
 
 statute or oi-dinance.^ Thus, one employed by a railroad cor- 
 poration as a locomotive engineer is not debarred from recov- 
 ering damages against the corporation for injuries caused by 
 a defect in the locomotive, by the fact that he was acting in 
 intentional violation of the rules of the road, unless the acci- 
 dent was due in whole or in part to such violation.^ It is gen- 
 erally a question of fact whether the failure to observe a par- 
 ticular rule was the proximate cause of the injury complained 
 of.' It is the duty of a railway employee to inform himself 
 as to the rules of the road,* and to observe them according to 
 their plain tenor, and not according to what may have been 
 the practice of other employees,^ unless he is compelled by the 
 positive orders of the company to violate them, or such viola- 
 tion becomes necessary, under the system of management 
 adopted by the company, in order to the doing of the work 
 required of him;* or unless such violation is general on the 
 road and acquiesced in by the responsible officers of the com- 
 pany. A servant is not negligent in not knowing rules which 
 never have been brought to his attention.^ And so it is held 
 that the rules of a railroad company are not obligatory, as 
 such, upon its servants who have not actual notice of them, 
 and to whom they have never been promulgated. Notice of 
 the rules must be actual in order to charge the servant ; and 
 it is held that the servant is not to be taken as affected with 
 
 » See § 141, ante ; Fickett v. Lisbon Falls Fibre Co., 91 Maine, 268. 
 
 - Ford t). Fitchburg R. R., 110 Mass. 240, and see Clarke v. Holmes, 
 7 H. & N. 987. 
 
 « Horan v. Chic, St. P. &c. R. R., 89 Iowa, 328. 
 
 * Gulf, Col. & Santa Fe R. R. v. McMahau, 6 Tex. App. 601. 
 
 6 Gordy v. New York, P. & N. R. R., 75 Md. 297. 
 
 « Wilson V. Mich. Cent. R. R., 94 Mich. 20; Holmes v. South. Pac. 
 Co., 120 Cal. 357. A rule forbidding railway employees to go between 
 cars in motion for the purpose of coupling or uncoupling them is reason- 
 able ; but it must be taken with the qualification that the company will 
 provide other means for performing the necessary service ; and if it fail 
 to do this, the rule is no protection to the company against liability for 
 damages for injuries sustained in doing the work in violation of the rule. 
 Memphis & C. R. R. v. Graham, 94 Ala. 545. 
 
 ' Le Croy o. New York, L. E. & W. R. R., 10 N. Y. Sup. N. E. Rep. 
 382; Fay i'. Minn. & St. L. R. R., 30 Minn. 231 ; Memphis & C. R. R. v. 
 Graham, 94 Ala. 545 ; Louisville & N. R. R. v. Mothershed, 110 Ala. 113. 
 
280 PERSONAL INJURIES. [CHAP. V. 
 
 notice merely because his immediate superior has notice, if 
 the servant is in fact ignorant ; ^ but if it was the dutj of the 
 employee to make himself acquainted with the rule, and he 
 failed to do this, having an opportunity to make himself ac- 
 quainted with it, he will be charged with negligence.^ If a 
 railroad waives its rules by permitting or requiring its em- 
 ployees to disregard them, the disobedience of the rules by 
 the employee doing his work in the customary manner, will 
 not, of necessity, be contributory negligence ; ^ since the mas- 
 ter cannot be permitted to set up as a defence against the 
 consequences of his own negligence the breach of a rule by 
 his servant, the customary violation of which rule the master 
 has directed or acquiesced in.* 
 
 § 154. Illustrations of the Principles stated. — While, upon 
 tlie question of contributory negligence, it is proper for the 
 jury to consider the fact that the order which had been vio- 
 lated was unreasonable," it is apprehended that the question 
 whether, under the circumstances, the rules are reasonable, 
 and so obligatory on the employee, is a question of law.® Where 
 it was contended that the plaintiff was negligent in making 
 a "flying switch" contrary to the rule of the corporation, 
 
 > Covey V. Hannibal & St. Jo. R. R., 27 Mo. App. 17; Central R. R. 
 of Georgia v. Ryles, 84 Ga. 420 ; Carroll v. East Tennessee, Va. & Ga. 
 R. R., 82 Ga. 452. 
 
 ^ Thus it was held that where copies of the rules of the defendant had 
 been duly distributed among its station foremen, a section hand was to 
 be charged with notice of them, Shenandoah Valley R. R. ». Luccado, 
 86 Va. 390 ; and that the rules of a railroad company were admissible in 
 evidence although the conductor charged with violating them had never 
 seen them, it being his duty to acquaint himself with them. Alexander 
 V. Louisville & Nashville R. R., 83 Ky. 589. 
 
 » Lowe V. Chic, St. P. &c. R. R., 89 Iowa, 420; Strong ir. 111. Cent 
 R. R., 94 Iowa, 380 ; Fisk v. 111. Cent. R. R., 96 Iowa, 702; Fay v. Minn. 
 & St. L. R. R., 30 Minn. 231 ; Alabama Gt So. R. R. v. Roach, 110 Ala. 
 266 ; Kansas City, Fort Smith & Gulf R. R. v. Kier, 41 Kan. 661 ; Barry 
 V. Hannibal & St. Jo. R. R., 98 Mo. 62. But see Richmond & D. R. R. 
 V. Rush, 71 Miss. 987. 
 
 * Knickerbocker Ice Co. v. Finn, 51 U. S. App. 256. 
 6 Prather v. Richmond & Danville R. R., 80 Ga. 427. 
 
 • Kansas & Ar. Valley R. R. v. Dye, 36 U. S. App. 23. 
 
§§ 153-155.] NEGLIGENCE OP PLAINTIFF. 281 
 
 it was held that he might recover, it appearing that making 
 such a switch was the only practicable means of sending cars 
 upon a side-track, and that it was the method of doing this 
 customarily adopted on the defendant's road.* Whei"e a plain- 
 tiff violated one rule of the road in order to avoid violating 
 another and possibly a more important rule, it was held that 
 the question of his negligence, under the circumstances, was 
 for the jury .2 In an action by a railway engineer against the 
 company for personal injuries, the defendant contended that 
 the plaintiff was guilty of contributory negligence because he 
 was running at a greater rate of speed than he was instructed 
 to run, and because the defendant's rules limited the speed to 
 a certain rate before crossing trestles ; the accident having 
 happened near a trestle, when the plaintiff was exceeding that 
 rate. It appeared that the plaintiff had been over the road 
 but once befoi^e, did not know that the trestle was near, and 
 had never seen or read the train rules. It was held that the 
 question of contributory negligence was for the jury.^ It was 
 held that a rule prohibiting freight trains from running at a 
 speed exceeding fifteen miles an hour, exclusive of stops, was 
 not violated by running occasionally at a greater speed, pro- 
 vided the actual rate of speed did not exceed fifteen miles in 
 an hour of running time.* 
 
 SECTION VI. 
 
 OP PASSENGERS. 
 
 § 155. General Rule of ResponsibiUty. — The essential ele- 
 ment of contributory negligence on the part of a passenger 
 injured by an accident to the railroad car, or other vehicle in 
 which he is travelling, is his disregard of some risk which he 
 
 1 Alexander v. Louisville & Nashville R. R., 83 Ky. 589; Union Pacific 
 R. R. V. Springsteen, 41 Kan. 724. 
 
 2 Sutherland v. Troy & Boston R. R., 8 N. Y. Sup. N. E. Rep. 85 
 (1890). 
 
 » Dunlap V. Northeastern R. R., 130 U. S. 649. 
 
 * Sutherland v. Troy & Boston R. R., 8 N. Y. Sup. N. E. Rep. 83. 
 
282 PERSONAL INJURIES. [CHAP. V. 
 
 ought fairly to have anticipated.^ The passenger has a right 
 to expect that the carrier will provide all safe and suitable 
 means and appliances for carrying on the business of trans- 
 porting passengers, and to trust himself to be transported to 
 the end of his journey by such means as the carrier provides ; 
 nor, unless the vehicles or fixtures furnished are obviously 
 dangerous or insufficient, is the traveller put upon inquiry to 
 see that these are sound and safe.^ Thus, if a passenger takes 
 a seat in a railway car which would be more dangerous than 
 another in the case of a collision, his doing this is not negli- 
 gence,^ although the greater danger of the position be obvious,* 
 or he has been forbidden to remain in that particular place.® 
 In the case of accident, the passenger is bound to exercise 
 reasonable prudence in looking out for his own safety, but he 
 is not bound to use the highest conceivable prudence; and 
 the circumstances of confusion, distress, or dismay into which 
 he may thus suddenly be thrown are to be considered upon 
 the question of his contributory negligence. And an act 
 done by a passenger, in the face of impending danger, for the 
 purpose of escaping it, may not in law constitute contributory 
 negligence, although in fact it may have contributed to pro- 
 duce the injury ; ® as, where a passenger in a dangerous emer- 
 gency jumped from a moving car to save himself, and was 
 injured, although if he had remained in the car he would have 
 escaped injury.'' 
 
 § 156. Violation of tlules of the Carrier : Evasion of Fare : 
 •Waiver of Rule. — A carrier of passengers has a right to make 
 reasonable rules for the regulation of his business and to 
 
 » Terry v. Jewett, 17 Hun, 400, 78 N. Y. 345; Gray v. Bell, 5 Am. 
 Eep. 371. 
 
 2 Willis V. Long Island R. R.-, 34 N. Y. 670 ; and see §§ 113, 118, ante. 
 
 8 Creed v. Pennsylvania R. R., 17 Abb. L. J. 364; Willis v. Long 
 Island R. R., 32 Barb. 398, 34 N. Y. 670; Rounds v. Delaware, Lacka- 
 wanna & W. R. R., 64 N. Y. 129, 138. 
 
 * Carroll v. New York, N. H. & H. R. R., 1 Duer, 571, 6 Duer, 415; 
 Haley v. Earle, 30 N. Y. 208. 
 
 ' Colegrove v. New Haven & Harlem R." R., 20 N. Y. 492. 
 
 » Stokes V. Saltonstall, 13 Pet. 181 ; Ladd v. Foster, 31 Fed. Rep. 827. 
 
 ' South Covington & C. Street Railway v. Ware, 84 Ky. 267 ; Cody v. 
 New York &-N. E. R. R., 151 Mass. 462. 
 
§§ 155-156.] NEGLIGENCE OP PLAINTIFF. 283 
 
 secure the safety of the passengers ; and if a passenger violates 
 such a reasonable rule, and such violation contributes to his 
 injury, he cannot recover therefor.^ The question whether 
 the rule alleged to have been violated in any case is reason- 
 able, is for the court. Thus rules have been held to be 
 reasonable which prohibited passengers from riding in bag- 
 gage cars,^ or in freight cars,* or from putting their heads or 
 arms out of the windows ; * or from riding on the platforms of 
 the cars,® or from entering trains except at suitable places 
 provided for that purpose.^ So a rule is reasonable under 
 which a carrier refuses to transport an intoxicated person.^ 
 It seems that, whether the case is covered by a rule or not, 
 the carrier may remove from his car or vehicle a person who, 
 by reason of intoxication or otherwise, is in such a condition 
 as to render it reasonably certain that he will become offensive 
 or annoying to other passengers, although he has not com- 
 mitted any offence or annoyance.* This rule is justified by 
 the consideration that the carrier owes to his passengers the 
 duty of seeing that they do not suffer insult or violence while 
 being carried to their destination, whether at the hands of the 
 carrier's servants, or of their fellow-passengers carried in 
 the same conveyance.® The rule may properly be admitted in 
 evidence, although unknown to the plaintiff, for the purpose 
 of justifying the conduct of the defendant's servants, as in 
 ejecting the plaintiff from the defendant's car, the plaintiff 
 appearing to be intoxicated, and the rule of the defendant for- 
 
 1 Wais V. Lynn & Boston R. R., 129 Mass. 351 ; Werle v. Long Island 
 R. R., 98 N. T. 650; Chicago, M. & St. P. R. R. v. Myers, 49 U. S. App. 
 279. 
 
 * Pennsylvania R. R. v. Langdon, 92 Penn. St. 91. 
 » Muroh ». Concord R. R., 29 N. H. 9. 
 
 * Pittsburg & C. R. R. v. McClurg, 56 Penn. St. 294. 
 6 Wills V. Lynn & Boston R. R., 129 Mass. 351. 
 
 * McDonald v. Chicago & Northwestern R R., 26 Iowa, 124; Pennsyl- 
 vania R. R. i: Zebe, 33 Penn. St 326. 
 
 ' McGinnis v. Missouri Pacific R. R., 31 Mo. App. 399; Spohn v. 
 Missouri Pacific R. R., 87 Mo. 74. 
 
 ' Vinton v. Middlesex R. R., 11 Allen, 304 ; Murphy ». Union Railway, 
 118 Mass. 328. 
 
 ' See § 38, ante, and cases cited. 
 
284: PERSONAL INJURIES. [CHAP. V. 
 
 bidding the carriage of intoxicated persons.^ When the facts, 
 are undisputed, the question of the plaintiff's negligence may 
 be for the court ; but when it is doubtful whether or not the 
 violation contributed to cause the injury, the question of 
 negligence will be for the jury.^ The assent of the passenger 
 to all reasonable rules and regulations of the carrier which 
 have been brought to his knowledge, is to be implied.^ The. 
 decisions in these cases rest upon the principle that while the 
 carrier owes a common-law duty to the passenger, yet, in the 
 case of a passenger for hire, the relation between the parties 
 is created by the contract,* and may be terminated by the 
 wrongful act of the passenger in breach of the contract. Thus, 
 the passenger is bound to pay his fare on a reasonable demand 
 being made therefor ; and if he wilfully refuses to do so, his 
 rights under the contract cease by his own act, and he cannot 
 insist on its fulfilment by the carrier.^ This is a statutory 
 
 1 O'Neill V. Lynn & Boston R. E., 155 Mass. 371. 
 
 2 See § 153, ante. 
 
 8 Sullivan v. Pennsylvania R. R., 80 Penn. St. 238. Where a pas- 
 senger, who was smoking entered the smoking compartment of a car and 
 finding all the seats occupied, passed into the adjacent baggage compart- 
 ment and there remained until a collision by which he was injured 
 occurred, there being a rule of which he was ignorant prohibiting pas- 
 sengers from riding in baggage cars ; it was held that he took the risk of 
 injury from dangers inherent in the construction or use of the car in the 
 carrying of baggage ; but not of injury from an extraneous cause, such 
 as a collision. New York, L. E. & W. R. R. v. Ball, 53 N. J. L. 283. 
 
 * See §§ 5, 6, ante. 
 
 * One who refuses to pay his fare on a railway train, and persists in 
 riding thereon, against the order of the conductor, stands in the position 
 of a trespasser, and the railroad will not be liable to him unless for wan- 
 ton or malicious injuries. See Toledo, Wabash & Western R. R. ». 
 Brooks, 81 111. 293; Gulf, C. & S. F. R. R. v. Greenlee, 62 Tex. 344. 
 The injured passenger, in order to recover damages, must not only be free 
 from contributory negligence but from fraud on the defendant carrier. 
 Toledo, Wabash & W. R. R. t). Brooks, 81 111. 293. Where a railroad 
 corporation was, by law, obliged to transport infants under three years of 
 age, free of charge, a woman bought a ticket for herself but none for a 
 child three years and two months old, and, with the child in her arms, 
 went on board the train, where the child was injured by reason of the de- 
 fendant's negligence as carrier. No inquiry having been made by the 
 defendant as to the age of the child, and the jury having found that there 
 was no intention on the part of the mother to defraud the company, it 
 
§ 156.] NEGLIGENCE OP PLAINTIFF. 285 
 
 rule in many of the States, and is likewise a tule of the com- 
 mon law. The carrier, therefore, may refuse to transport the 
 passenger further, and may expel him from its train or vehicle ; 
 nor can the person so expelled reinstate himself as a passenger 
 by offering to pay his fare after his ejection, for his right to 
 demand the complete execution of the contract is defeated 
 by his refusal to do that which was either a condition pre- 
 cedent or a concurrent consideration on his part.^ One who 
 leaves a train in motion thereby ceases to be a passenger ; ^ but 
 it is held that one who, having purchased a ticket, boards the 
 wrong train by mistake, is entitled while he remains there to 
 be protected as a passenger.* Although a railway carrier is 
 not bound to receive passengers except at its regular stations, 
 and a person boarding a train at a place not a station is 
 prima facie a trespasser,* yet if he so take the train at the 
 invitation, express or implied, of the carrier, intending to pay 
 his fare as a passenger, he becomes such ; and it may be 
 inferred that the carrier received him as such, if its servants 
 permit him to board the train and receive his fare.^ Gener- 
 ally, if the carrier permits its rules regulating the rights and 
 conduct of passengers to be customarily disregarded, a practi- 
 cal invitation on the carrier's part to disregard the rule may 
 be inferred, and the existence of the rule will not avail as a 
 defence in an action against the carrier.® So an invitation 
 by the servant of the carrier to violate the rule, as to ride in a 
 forbidden place or to enter a vehicle in motion, may amount 
 to a waiver of the rule by the carrier; and the question 
 whether there is such a waiver is generally one of fact.^ And 
 
 was held that the child was entitled to recover for its injuries. Austin v. 
 GiBat Western R. R., 2 Q. B. 449. 
 
 1 O'Brien v. Boston & Worcester R. R., 15 Gray, 20; Stephen «. Smith, 
 29 Vt. 160 ; Hibbard v. "Seyf York & Erie R. R., 15 N. Y. 455. 
 
 3 Commonwealth v. Boston & Maine R. R., 129 Mass. 500. 
 
 « Columbus, C. & I. R. R. V. Powell, 40 Ind. 37. 
 
 * Murch V. Concord R. R., 29 N. H. 9. 
 
 ' Merrill v. Eastern R. R., 139 Mass. 238; Dewire v. Boston & Maine 
 B. R., 148 Mass. 343. 
 
 • McNee v. Colbum Trolley Track Co., 170 Mass. 283. 
 
 1 Waterbury v. N. Y. C. & H. R. R. R., 17 Fed Rep. 671; North Chi- 
 cago, &c. Railway v. Williams, 140 IlL 275. 
 
286 PERSONAL INJURIES. [CHAP. Y. 
 
 the same rules apply when the rule is created by a statutory 
 regulation.^ 
 
 § 157. Conduct of Passengers on Railway Trains ; at Stations : 
 Invitation. — The passenger is not negligent if his conduct is 
 such as in the judgment of reasonable men is prudent and 
 proper under the circumstances. The passenger is not bound 
 to look out for hidden defects or dangers, and so may choose 
 his position or seat in the car or vehicle.^ But where the pas- 
 senger without excuse puts himself in a place not intended 
 for passengers, as where he voluntarily and unnecessarily 
 stands upon the platform of a railway car, he is, as matter of 
 law, guilty of contributory negligence.^ If the passenger is 
 physically deficient, he is bound to govern himself accord- 
 ingly ; thus it was held that a lame woman, who, in attempt- 
 ing to pass from one moving railway car to another, stepped 
 without necessity upon the " buffers " between the platforms 
 
 1 Baltimore & Ohio R. R. v. Myers, 18 TJ. S. App. 569. 
 
 ' See § 155, ante. If a person voluntarily takes passage as passenger 
 upon a freight train of a railroad which provides passenger trains, he has 
 a right to require such security only as the mode of conveyance which he 
 has chosen may be expected to furnish. Harris v. Hannibal & St. Jo. R. 
 R, 89 Mo. 233; Crine v. East Tennessee, V. & G. R. R., 84 Ga. 651. A 
 passenger who voluntarily assumes the duties of a trainman, although at 
 the request of the carrier's servants, takes the risk of resulting injuries. 
 Atchison, Topeka & Santa Fe R. R. v. Lindley, 42 Kan. 714. 
 
 8 Hickey v. Boston & LoweU R. R., 14 Allen, 429. See New York, 
 L. E. & W. R. R. V. Ball, 53 N. J. L. 283, as cited ante, § 156, ,,. Al- 
 though it may be negligence for a passenger to ride unnecessarily upon 
 the platform of a car, yet there may be such excuse for his doing so as 
 will take the case out of the general rule ; as where a passenger had 
 walked through a train in the vain search for a seat, and was, when he 
 was injured, standing upon the platform and looking into the car in the 
 further search for a seat. Dewire v. Boston & Maine R. R., 148 Mass. 
 343; Willis v. Long Island R. R., 34 N. Y. 670, 682, 683. So the fact 
 that a passenger, in apprehension of a collision, leaves his seat and goes 
 upon the platform is not conclusive of his negligence. Collins v. Albany 
 & Schenectady R. R., 12 Barb. 492. A shipper of stock upon a raih-oad 
 may not be guilty of contributory negligence who uses the only platform 
 provided by the railroad company for that purpose, and is injured in so 
 doing, although he knows the platform to be unsafe. White v. Cincin- 
 nati, N. O. & T. P. R. K., 89 Ky. 478. 
 
§§ 156-157.] NEGLIGENCE OF PLAINTIFF. 287 
 
 and was injured, was guilty of contributory negligence.^ 
 Where a passenger on a railway voluntarily thrust his arm 
 out of an open window of the car in which he was riding, and 
 was injured by the swinging against it of an unfastened door 
 of a car of the defendant passing on the parallel track, this 
 was held conclusive of his negligence.^ But it was held not 
 to be negligence for a passenger to ride with his arm on the 
 sill of a car-window, when, by the shock of a collision, his 
 arm was jarred outside of the window and so broken.* It is 
 considered that, in many circumstances, a street-car passen- 
 ger, riding with part of his body projecting beyond the line of 
 the car, cannot be said, as matter of law, to be guilty of negli- 
 gence, or to assume the risk of contact with things outside the 
 car. But a street-car passenger may intentionally or deliber- 
 ately put his head or part of his body outside of or beyond 
 the line of the car under such circumstances as to make it 
 plain, as matter of law, that he is not in the exercise of due 
 care.* It has been held not to be negligent, as matter of law, 
 to ride on the platform of a moving steam car ; ^ but the bet- 
 ter rule would seem to be that there must be some justifica- 
 tion for such action, and that whether such justification exists 
 is a question for the jury.^ But it is clear that it is not negli- 
 
 1 Snowden i'. Boston & Maine R. R. , 151 Mass. 220. 
 
 » Todd V. Old Colony & Newport R. R., 7 Allen, 207. See, also, Hol- 
 brook V. Utica & Syracuse R. R., 12 N. Y. 236; Pittsburg & C. R. R. v. 
 Andrews, 39 Md. 329 ; Spencer v. Milwaukee & Pont du Chien R R., 17 
 Wis. 487 ; Louisville & Kashville R. R. v. Sickings, 5 Bush, 1 ; Summers 
 V. Crescent City R. R , 34 La. Ann. 139; Moore v. Edison 111. Co., 43 
 La. Ann. 792; Pittsburg & C. R. R. v. McClurg, 56 Penn. St. 294; India- 
 napolis & C. R. R. V. Rutherford, 29 Ind. 82; Dun v. Seabord & Roanoke 
 K. R., 78 Va. 645. In Laing .'. Colder, 8 Penn. St. 479, it was held, if 
 the plaintiff travelling in the defendant's railroad car permitted his hand 
 to project from the window, so that his arm was broken by striking a 
 bridge, that the defendant would not be liable for the injury if it gave 
 timely notice of the danger, which the plaintiff might have avoided., 
 
 ' Farlow v. Kelly, 108 U. S. 288, and see Francis v. New York Steam 
 Co., 114 N. Y. 380 ; Miller v. St. Louis R. R., 5 Mo. App. 471; Dahlberg 
 V. Minn. St. R. R., 32 Minn. 404. 
 
 * Cummings v. Worcester, &c. Railway, 166 Mass. 220. See § 159, post. 
 1 Choate urMo. Pac. R. R., 67 Mo. App. 105 ; Chicago & Alton R. R. 
 
 V. Fisher, 141 HI. 614. 
 
 • Baltimore & Ohio R. R. e. Myers, 18 U. S. App. 569. It is obvious 
 
288 PERSONAL INJURIES. [CHAP, V. 
 
 gence per se to ride on the platform of a street car.^ It is not 
 negligence to ride in a baggage car, when this is the only 
 conveyance provided by the carrier ; ^ otherwise to ride on a 
 locomotive, although by invitation of the engineer.^ It is gen- 
 erally a question of fact whether a passenger is negligent in 
 riding upon the longitudinal footboard of a street car,* al- 
 though to do so may be, under some circumstances, negli- 
 gence per %e? It has been held to be unjustifiable negligence 
 under any circumstances for a passenger to pass from one car 
 to another, the train being in motion ; ® but it is to be doubted 
 whether such a rule can be sustained,^ and it is held that the 
 presence on a train of vestibule cars is an invitation to the 
 passenger to pass from one car to another, and that he has a 
 right to assume that he may do this safely.* The degree of 
 care to be exacted of a passenger, or one lawfully accompany- 
 ing him, on approaching or leaving a railroad station by the 
 usual route, is to be measured by the circumstances of dan- 
 ger ; but if the situation and aspect of the place are such as 
 apparently to hold it out to the plaintiff as being a suitable 
 place to approach or leave the train or to cross the track, he 
 will be considered to act by the defendant's invitation, and 
 will not be held to so rigorous a care as upon approaching an 
 ordinary crossing.* So, if a passenger alights from his train 
 
 that a passeDger ridiug on a car platform will not be barred of recovery 
 for an injury received while so riding unless his negligence in so doing 
 contributed to the accident. Kansas & Ar. Valley R. K. v. White, 32 
 U. S. App. 192. 
 
 > Watson V. Portland Railway, 91 Maine, 584; Seigel v. Eisen, 41 Cal. 
 109; Pray v. Omaha Street Railway, 44 Neb. 167. 
 
 * Baltimore & Potomac R. R. v. Swann, 81 Md. 400. 
 » Texas & Pac. R. R. v. Boyd, 6 Tex. Civ. App. 205. 
 
 * City Railway ». Lee, 30 N. J. L. 435; Elliott ». Newport Street 
 Railway, 18 R. I. 707. 
 
 * Sharkey v. Lake Roland Railway Co., 84 Md. 163. 
 
 * Bemis v. N. O. City, Sec. R. R., 47 La. Ann. 1671 ; Jamison ». Ches- 
 apeake & Ohio R. R., 92 Va. 327. 
 
 ^ Chesapeake Se Ohio R. R. o. Clowes, 93 Va. 189. 
 
 » Bronson ». Oakes, 40 U. S. App. 413. 
 
 » Gaynor ». Old Colony & Newport R. R., 100 Mass. 208; Chaffee ». 
 Boston & Lowell R. R., 104 Mass. 108, 115; Wheelock v. Boston & Al- 
 bany R. R., 105 Mass. 208. See Atchison, Topeka & Santa Fe R. R. v. 
 
§§ 157-158.] NEGLIGENCE OP PLAINTIFF. 289 
 
 upon a track running by the side of the train, instead of upon 
 the platfoi-m provided for the purpose, it has been held that 
 the question whether he is negligent may be for the jury.^ 
 So, where a person, in order to purchase a ticket, crossed the 
 track in the night against the posted rules of the defendant, 
 and while recrossing was injured, it was held that the ques- 
 tion of his contributory negligence was for the jury.^ It has 
 been held negligence, as matter of law, for a person alighting 
 from a train standing at a station to cross a parallel track 
 without looking to see if another ti-ain is approaching thereon, 
 although a rule of the road prohibits trains from crossing 
 each other at a station ; ^ but the rule thus laid down is criti- 
 cised, it being held that whether a person whose duty it is to 
 receive mail and express matter from a train (such person 
 being entitled to the rights of a passenger, as to protection 
 from accident) * is guilty of contributory negligence in going 
 upon an intervening track for that purpose, without looking to 
 see if a train is approaching on that track, is a question of 
 fact^ 
 
 § 158. Iieaving or Boarding Moving Trains : QnestionB of Law 
 and Pact. — It is not, necessarily, as a matter of law, negligent 
 for a passenger to enter or leave a moving train, and the 
 question whether it is negligence in a particular case will 
 
 Jones, 36 Ean. 769 ; IMggs v. Boston, Beverp Beach & Lynn R. B., 158 
 Mass. 309. 
 
 1 Bobostelli v. New Tork, N. H. & H. B. E., 33 Fed. Bep. 796. 
 Where a passenger left a safe place, designated as temporary station, 
 and approached burning oil tanks, on the track, which exploded and in- 
 jured him, he was held to be guilty of contributory negligence. Conroy 
 V. Chicago, St. P. &c. B. B., 96 Wis. 243. 
 
 * Dublin, Wicklow & Wexford Eailway v. Slattery, L. B. 3 App. Cas. 
 1155, Lords Hatherley, Coleridge, and Blackburn dissenting. See Deb- 
 bins V. Old Colony E. E., 154 Mass. 402; Connolly v. New York & N. E. 
 B. B., 158 Mass. 8. 
 
 » Debbms v. Old Colony E. E., 154 Mass. 402; Connolly v. New York 
 & N. E. E. E., 158 Mass. 8. 
 
 * See § 114, ante. 
 
 6 Tubbs V. Mich. Cent. B. E., 107 Mich. 108. See Klein v. Jewett, 26 
 N. J. Eq. 474; Terry v. Jewett, 78 N, Y. 338; Denver, &c. E. E. v. Hodg- 
 son, 18 Col. 117; Penn. Co. v. McCaffrey, 173 111. 173. 
 
 19 
 
290 PERSONAL INJURIES. [CHAP. V. 
 
 depend upon the circumstances of danger attending the act 
 and the special justification which the passenger had for doing 
 it.^ Thus where the plaintifiE alighted from a train of cars 
 moving at a rate of not more than two miles an hour, it was 
 held that the question whether he was negligent was for the 
 jury ; ^ and so where the alleged contributory negligence con- 
 sisted in boarding a train after the signal to start had been 
 given, the court saying that even if the plaintiff knew that the 
 signal had been given, he might reasonably believe that he 
 could get safely on board before the train should start.^ It 
 is, however, obvious that to alight from a rapidly moving train 
 will, ordinarily, be negligence so as to prevent a recovery for 
 the resulting injury, unless the passenger do this to escape 
 from an imminent peril, in which case the question will be 
 for the jury.* Where a passenger alighted from a train in 
 motion under circumstances which rendered the act, per se, 
 negligent, it was held that the circumstance that the brake- 
 man had called out the name of the station which the train 
 was approaching, and had fastened back the door of the car, 
 
 1 See Int. & Gt. North. K. K. v. Satterwhite, 15 Tex. Civ. App. 102 ; 
 Bouknight v. Charlotte, &c. R. R., 41 S. C. 415; Omaha & R. V. R. R. 
 V. ChoUette, 33 Neh. 143 ; Chic, B. & Q. R. R. v. Landauer, 36 Neb. 642 ; 
 St. Joseph & G. I. R. R. v. Hedge, 44 Neb. 448. 
 
 2 Pennsylvania Co. v. Marion, 123 Ind. 425 ; Distler v. Long Island 
 R. R., 151 N. Y. 424; Sanderson v. Mo. Pac. R. R., 64 Mo. App. 655. 
 But see Murray v. Penn. R. R., 173 Penn. St. 74. A person is not 
 excused for leaving a train in motion, it having just left a station, because 
 it did not stop at the station for the length of time required by law. 
 Gralveston, Houston & S. A. R. R. v. Le Gierse, 51 Tex. 189; Houston & 
 Texas Central R. R. v. Leslie, 57 Tex. 83. 
 
 * Dawson v. Boston & Maine R. R., 156 Mass. 127; Schaefer v. St. 
 Louis, &o. R. R., 128 Mo. 64. 
 
 * Cody V. New York & New England R. R., 151 Mass. 462, and see 
 § 157, ante. Where the conductor of a train on an elevated railroad was 
 absent from his post of duty on the platform of a car which, between 
 stations, was kept closed against ingress or egress by a gate ; and the train 
 stopped at a station ; and a passenger, wishing to leave the car at that 
 station, opened the door of the car for the purpose of attracting the con- 
 ductor's attention, and having opened the gate, was injured by the gate 
 swinging against her hand ; it was held that the question of her contribu- 
 tory, negligence was for the jury. Baker v, Manhattan Railway Co., 64 
 N. Y. S. C. 394. 
 
§ 158.] NEGLIGENCE OP PLAINTIFF. 291 
 
 did not amount to an invitation to the plaintiff to alight from 
 a moving train, but from the train after it had stopped.^ The 
 earlier cases on this subject appeared to hold, as an absolute 
 rule of law, that one could not recover for an injury received 
 by reason of his leaving a railway train while it was in motion.^ 
 But the tendency of the later cases is to consider the question 
 of negligence as one of fact, unless the conduct of the plaintiff 
 was clearly so reckless as to leave no reasonable doubt that it 
 was negligent.^ So it was held that the attempt to board a 
 moving train was negligent unless there were special circum- 
 stances to excuse the act ; but now it is considered that a well- 
 founded belief on the part of the plaintiff that he may get upon 
 the train safely may furnish an excuse for the act.* But it is 
 clear that it is as matter of law negligence to leave, without 
 excuse, a rapidly moving train unless there are strong circum- 
 
 ^ England v. Boston & Maine R. K., 153 Mass. 490. See Bridges v. 
 North London Bailway, L. R. 6 Q. B. 377; Lewis v. London, Chatham & 
 Dover RaUway, L. R. 9 Q. B. 66. 
 
 2 See Lucas v. New Bedford & Taunton R. R., 6 Gray, 64 ; Bancroft 
 17. Boston & Worcester R. R., 97 Mass. 275; Forsyth ». Boston & Albany 
 R. R., 103 Mass. 510; Gavett v. Manchester & Lawrence R. R., 16 Gray, 
 501; Morrison v. Erie R. R., 56 N. Y. 312; Pennsylvania R. R. v. Aspell, 
 23 Penn St. 147; Lake Shore & Mich. Southern R. R. u. Bangs, 47 Mich. 
 470; Cumberland Yalley R. R. v. Mangans, 61 Md. 53; Straus v. Kansas 
 City, St. Jo. & C. R. R., 75 Mo. 585; Sehiffler v. Chic. & N. W. R. R., 96 
 Wis. 141; Butler v. St. Paul &. D. R. R., 59 Minn. 135; McDonald v. Mont- 
 gomery St. Railway, 110 Ala. 161; Hoehn v. Chic, P. & St. L. R. R., 
 152 III. 223; Heaton v. Kansas City, P. & G. R. R., 65 Mo. App. 479; 
 Woolsey v. Chic, B. & Q. R. R., 39 Neb. 798, in which cases the rule has 
 been more or less strictly applied. 
 
 » See Treat v. Boston & Lowell R. R., 131 Mass. 371; Brooks ». Bos- 
 ton & Maine R. R., 135 Mass. 216 ; Toledo, St. L. &c. R. R. v. Wingate, 
 143 Ind. 125; Birmingham El. R. R. v. Clay, 108 Ala. 233; Raihoad v. 
 Mitchell, 98 Tenn. 27. 
 
 * Dawson v. Boston & Maine R. R., 156 Mass. 127. In Gahagan v. 
 Boston & Lowell R. R., 1 AUen, 187, it was held that an attempt to pass, 
 without special reason, between cars in motion and propelled by a loco- 
 motive, was negligence per se, but it is apprehended that the question 
 whether the plaintifE is negligent in such a case will depend upon the de- 
 gree of the danger to which he voluntarily subjects himself, which in turn 
 depends upon the construction of the cars between which he attempts to 
 pass, the rate of speed at which the train is moving, etc. 
 
292 PERSONAL INJUEIES. [CHAP. V. 
 
 stances of excuse or necessity fox so doing.^ It is obvious that 
 in certain situations, as where a passenger perceives a collision 
 with another train, or other serious accident, to be imminent, 
 the prudent course may be for the passenger to jump from the 
 train.2 So, in an early case, where the want of proper skill or 
 care of the driver of a stage-coach placed the passengers in 
 peril, so that they had a reasonable ground for supposing that 
 the stage would upset and that the driver was incompetent, it 
 was held that a plaintiff passenger might recover, although the 
 attempts of the plaintiff to escape from the coach might have 
 increased the peril in which he was placed, and although he 
 probably might have escaped without injury if he had remained 
 in the coach.^ There is a line of cases which seem to hold, 
 or intimate, that where the act of the passenger in attempting 
 to board, or alight from, a moving train or car is done at the 
 invitation or advice of the carrier or his servant, such act 
 will not be negligence per se, whatever the circumstances of 
 danger;* but since the quality of the act, as negligent or 
 otherwise, cannot be affected by the fact that the passenger 
 was invited or incited to do it by a third person, it would seem 
 that such a rule cannot be justified. Thus it has been held 
 that a passenger is not justified in jumping from a train mov- 
 ing at the rate of from ten to fifteen miles an hour because a 
 trainman tells him that he is on the wrong train, that it will 
 
 1 Phillips V. Renssalaer & Saratoga R. R., 49 N. T. 177 ; Harper u. 
 Erie R. R., 32 N. J. L. 88; Illinois Central R. R. v. Chambers, 71 111. 
 519; Richmond & Danville R. R. ». Morris, 31 Gratt. 200; Wabash, St.. 
 L. & Pao. R. R. V. Rector, 104 111. 296 ; Lake Shore & Mich. South. R. R. 
 V. Bangs, 47 Mich. 470 ; Houston & Texas Central R. R. v. Leslie, 57 
 Tex. 83; McCorkle v. Chicago, R. I. & Pac. R. R., 61 Iowa, 555; Nelson 
 V. Atlantic & Pacific R. R., 68 Mo. 595; Central R. R. & Banking Co. v. 
 Letcher, 69 Ala. 106 ; Blodgett v. Bartlett, 50 Ga. 353. 
 
 =! Cousins V. Lake Shore & M. S. R. R., 96 Mich. 306 ; Odom r. St. 
 Louis S. W. R. R., 45 La. Ann. 1201, and see Conway v. Railroad, 46 La. 
 Ann. 1430. 
 
 ' Stokes V. Saltonstall, 13 Pet. 181, and. see Jones v. Boyce, 1 Stark. 
 293. 
 
 * See Burgin v. Richmond & D. R. R., 115 N. C. 673 ; Watkins v. 
 Raleigh, &c. R. R., 116 N. C. 961; Railway Co. v. Johnson, 59 Ark. 122; 
 Distler v. Long Island R. R., 151 N. Y. 424; Elphland v. Mo. Pao. B. R., 
 57 Mo. App. 147. 
 
§§ 158-159.] NEGLIGENCE OP PLAINTIFF. 293 
 
 not stop to let him off, and that he can safely jump from it.^ 
 So it is negligence for a passenger to jump from a street car 
 moving at the rate of twenty miles an hour ; notwithstanding 
 he is advised to jump by the conductor of the car, and the 
 rate of speed is illegal.^ 
 
 § 159. As to Passengers in Street Cars. — Since the measure 
 of care to be exacted of the passenger is to be proportioned to 
 the circumstances of danger in which he is placed, it will be 
 found that passengers on street cars will be held to a less 
 stringent rule than is applied to the case of accidents occur- 
 ring upon railways.^ Thus it is not, ordinarily, as matter of 
 law, negligence to board a moving street car,* nor to alight 
 from it,^ nor to ride upon the platform,® although it has been 
 
 1 Rothstein v. Penn. R. R., 171 Penn. St. 620. 
 
 » Masterson v. Macon City R. R., 88 Ga. 436, and see Atlanta R. R. ». 
 Dickerson, 89 Ga. 455. It is held that the fact that the conductor of a 
 street railway car fails to give a passenger an opportunity to alight safely 
 at a place at which the passenger has given him notice that he wishes to 
 alight, and the passenger in stepping from the moving car at that place 
 is injured, is a circumstance, merely, to be considered upon the question 
 of the negligence, respectively, of the conductor and the passenger. Rob- 
 inson V. Northampton Street Railway, 157 Mass. 224. 
 
 » See North Chicago Street Railway v. Williams, 140 111. 275; North 
 Chicago Street Railway v. WisweU, 168 111. 613 ; New Jersey Traction 
 Co. V. Gardner, 60 N. J. L. 571 ; § 157, ante. 
 
 * West Philadelphia Passenger Railway v. Gallagher, 108 Penn. St. 
 524 ; Thirteenth & Fourteenth Street Passenger R. R. v. Boudrou, 92 
 Penn. St. 475; Connor v. Citizens' Street R. R., 105 Ind. 62; Bruce v. 
 Union Railway, 148 Mass. 72 ; Gallagher v. West End Railway, 156 Mass. 
 157 ; Augusta R. R. v. Glover, 92 Ga. 133. See Linch v. Pittsburg Trac- 
 tion Co., 153 Penn. St. 102; Ober v. Railroad Co., 44 La. Ann. 1060; 
 McLeod V. Graven, 43 U. S. App. 129 ; Baltimore Traction Co. v. State, 
 78 Md. 409. 
 
 s Creamer v. West End R. R., 156 Mass. 320. It is held that the ques- 
 tion whether it is negligence to eject a passenger from a street car in 
 motion is for the jury, since the danger of doing this must depend upon 
 circumstances, particularly the rate at which the car is moving. Murphy 
 V. Union Railway, 118 Mass. 228. But see Sanford v. Eighth Avenue 
 R. R., 23 N. T. 343 ; Isaacs v. Third Avenue R. R., 47 N. Y. 122. If a 
 
 « Sheridan v. Brooklyn City, &c. R. R., 36 N. Y. 39 ; Spooner v. Brook- 
 lyn City B. R., 54 N. Y. 230; Nolan v. Brooklyn City R. R., 87 N. Y. 
 
294 PERSONAL INJUEIES. [CHAP. V. 
 
 held that if the passenger's attention was directed to a notice 
 posted on the car, prohibiting such riding, this would be con- 
 tributory negligence.* But it is apprehended that, in order 
 to prevent a recovery in such a case, it must appear that the 
 violation of the rule directly contributed to cause the injury 
 complained of.^ Where a passenger in a street car was sitting 
 with his arm projecting from the window of the car, and it 
 was injured by an obstruction on the outside, negligently 
 placed there by the defendant, it was held that the passenger 
 was not, as matter of law, debarred from a recovery .^ A street 
 railway company, having no control over the street, is not an 
 insurer of any place at which it stops a car for a passenger to 
 alight, having exercised proper care in selecting a place to 
 stop.* 
 
 passenger voluntarily alights from a street car in motion lie takes the 
 risk of injury by the sudden starting up of the car, and the employees 
 who so start the car are not negligent if they are ignorant that the pas- 
 senger is so alighting. Nichols v. Middlesex B. R., 106 Mass. 463. 
 
 63; Lehr v. Steinway & Hunter's Point R. R., 118 N. T. 556; Fleck v. 
 Union Railway Co., 134 Mass. 480; Meesel v. Lynn & Boston B. R., 
 8 Allen, 234; Graham. v. Manhattan Railway, 149 N. Y. 336; Reber v. 
 Pitts. Traction Co., 179 Penn. St. 339 ; Highland R. B. v. Donovan, 94 
 Ala. 299; Noble v. St. Joseph Railway, 98 Mich. 249; Matz v. St. Paul 
 City Railway, 52 Minn. 159. But one who voluntai-ily rides on the plat- 
 form of a street car takes the risk of being injured by ordinary jolting, 
 Hayes v. Forty Second St. &c. R.R., 97 N. Y. 259 ; and see Beal v. Lowell 
 & Dracut Street Railway Co., 157 Mass. 444. Standing on the bumper of 
 a street oar, although the car and platform of the car are filled to overflow- 
 ing, is per se negligence, Bard v. Penn. Traction Co., 176 Penn. St. 97, 
 and so is sitting on the driver's high seat on the front platform, without 
 invitation. Mann v. Philadelphia Traction Co., 175 Penn. St. 123. 
 
 1 Wills V. Lynn & Boston R. R., 129 Mass. 351. 
 
 ' See § 156, ante. 
 
 » Francis v. New York Steam Co., 114 N. Y. 380. See § 157, attte, and 
 cases cited. The mere fact that a person who was injured by a collision 
 between a street car and an ice-wagon, was standing on the platform of 
 the car when there were seats to be obtained inside, is not a defence in an 
 action brought by him against the owner of the ice-wagon, for the injury. 
 Connolly v. Knickerbocker Ice Co., 114 N. Y. 104. 
 
 ^ Connolly v. Lewiston & A. Horse R. R., 87 Maine. 283. So it will 
 not be responsible for injury received by a passenger who in alighting 
 steps on a rolling stone in the street. lb. 
 
§§ 159-160.] NEGLIGENCE OP PLAINTIFF. 295 
 
 § 160. As to Passengers on Vessels. — A Cabin passenger, 
 on board a passenger Tessel, has a right of access to any part 
 of the ship, suitable and intended for passengers, and he is 
 not, as matter of law, bound to anticipate danger in such 
 parts of the ship ; as from a hawser on the deck used to warp 
 the ship into her dock.^ But if the passenger goes where he 
 has no right to go, and so is injured, he is guilty of contribu- 
 tory negligence, and the owners of the ship will not be respon- 
 sible unless the injury is caused by the wilful or wanton act 
 of their servants. So where a passenger, without good excuse, 
 left a steamboat by an exit which was intended only for 
 freight, he knowing that a proper and sufficient exit for pas- 
 sengers had been provided in another place, and in so leaving 
 was injured, it was held that the owners of the boat were not 
 liable for the injury .^ The same rule was held where a pas- 
 senger attempted to leave a ferry-boat by the gangway pro- 
 vided for teams, instead of by that intended for passengers, 
 and in so doing was injured.^ A passenger has a right to 
 leave a steamer at the customary landings for his own conven- 
 ience, and is entitled to the protection due a passenger while 
 so doing.* 
 
 1 Miller v. Ocean Steamship Co., 118 N. Y. 199. 
 
 ' Dodge V. Boston & Bangor Steamship Co., 148 Mass. 207. 
 
 ' Graham :;. Pennsylvania K. K., 39 Fed. Kep. 596. But where a ferry 
 company is accustomed to bar the entrance to its boats by chains, and to 
 remove these when it is safe for the passengers to proceed, a passenger is 
 not necessarily negligent, who, knowing the custom, and relying on it, 
 proceeds when the guard has, in fact, been removed too soon. Ferris 
 V. Union Feriy Co., 36 N. T. 312. One who controls a ferry is to be 
 charged with the duties of a carrier. See Burton v. West Jersey Ferry 
 Co., 114 TJ. S. 474; Miles v. James, 1 McCord, 157; Bartlett v. New York 
 & S. B. F. & H. Transportation Co., 25 J. & S. 348. 
 
 « Keokuk Northern Line Packet Co. v. True, 88 HI. 608 ; Dice v. Wil- 
 liamette Transportation & Locks Co., 8 Or. 60. See Clussman v. Long 
 Island B. K., 73 N. Y. 606; Hrebrik i;. Carr, 29 Fed. Kep. 298. 
 
296 PEBSONAL INJUEIE8. [CHAP. V. 
 
 SECTION VII. 
 
 AT RAILWAY CROSSINGS. 
 
 § 161. General Rule : niustrations. — It IS a general rule that 
 if a person enters upon a railway track at a crossing, whether 
 public or private, without looking to see if a train or locomo- 
 tive is approaching, and, not having any reasonable excuse 
 for not looking, receives an injury, he is guilty of contributory 
 negligence, and cannot recover damages for the injury .^ But 
 
 1 Powell V. New Tork Central & H. K. R. K., 109 N. Y. 613; CuUen 
 V. Delaware & Hudson Canal Co., 113 N. Y. 667; Brickell o. New York 
 Central & H. R. R. R., 120 N. Y. 290; Bomboy v. New York Central & 
 H. R. R. R., 47 Hun, 425; Woodward v. New York, L. E. & W. R. R., 
 106 N. Y. 369; Mynning v. Detroit, L. & N. R. R., 67 Mich. 677; Geb- 
 hard v. Detroit, G. H. & M. R. R., 44 N. W. Rep. 1045 (Mich. 1890); 
 Underbill v. Chicago & G. T. R. R., 81 Mich. 43; State v. Maine Central 
 R. R., 77 Maine, 538 ; Chase v. Maine Central R. R., 78 Maine, 346 ; 
 Lesan v. Maine Central R. R., 77 Maine, 85 ; Allen ». Maine Central 
 R. R., 82 Maine, 111 ; Butterfleld v. Western R. B., 10 Allen, 532 ; AUyn 
 V. Boston & Albany R. R., 105 Mass. 77 ; Wheelock ». Boston & Albany 
 R. R., 105 Mass. 203; Damrill v. St. Louis & S. F. R. R., 27 Mo. 202; 
 Neier v. Missouri Pacific R. R., 6 S. W. Rep. 695 (Mo. 1890) ; Hudson 
 D. Wabash W. R. R., 101 Mo. 13; Union R. R. v. State, 72 Md. 153; 
 Clark V. Missouri Pacific R. R., 35 Kan. 350 ; Chicago, Milwaukee & St.. 
 P. R. R. V. Wilson, 133 111. 55 ; Brown v. Texas & Pacific R. R., 42 La. 
 Ann. 350; Nash v. Richmond & D. R. R., 82 Va. 55; Butler v. Gettys- 
 burg & H. R. R., 126 Penn. St. 160 ; Cincinnati, I. & St. L. R. R. v. 
 Howard, 124 Ind. 280; Glascock v. Central Pacific R. R., 14 Pac. Rep. 
 518, Cal. 87; McCroy v. Chicago, Milwaukee & St. P. R. R., 31 Ped. 
 llep. 531 ; Marty v. Chicago, St. P., M. & O. R. R., 38 Minn. 108; Miller 
 V. Truesdale, 56 Minn. 298; Durbin v. Oregon Railway & Nav. Co., 17 
 Or. 5 ; Continental Improvement Co. v. Stead, 95 U. S. 161 ; Schofield v. 
 Chicago, Milwaukee & St. P. R. R., 114 U. S. 615 ; Chicago, R. I. & Pac. 
 R. R. V. Houston, 95 U. S. 697 ; New York, N. H. & H. R. R. v. Blessing, 
 35 U. S. App. 208; Pyle v. Clark, 49 U. S. App. 260; Chicago, R. I. & 
 Pac. R. R. V. Pounds, 49 U. 8. App. 476; Western Md. R. R. v. Kehoe, 
 83 Md. 434; Manley «. Del. & H. Canal Co., 69 Vt. 101; Derk v. N. 
 Central R. R., 168 Penn. St. 243 ; Gangawer v. Phil. & R. R. R., 168 
 Penn. St. 265 ; Plummer v. N. Y. & H. R. R., 168 Penn. St. 62 ; Gray v. 
 Penn. R. R., 172 Penn. St. 383; Hughes a. Del. & H. Can. Co., 176 
 Penn. St. 254; Del., L. & W. R. R. v. Hefieran, 57 N. J. L. 149 ; Nixon 
 
§ 161.] NEGLIGENCE OP PLAINTIFF. 297 
 
 the rule is not invariable, and will not be applied when the 
 circumstances were such as to afford the plaintiff a reasonable 
 excuse for not looking ; ^ and it may often be a question for 
 the jury to determine whether the conduct of the defendant 
 was in fact negligent.^ So it is held that when a person, 
 without fault of his own, whether on foot or driving, finds 
 himself upon a railroad crossing exposed to danger from an 
 approaching train, he is not bound to exercise the utmost 
 conceivable prudence ; and the question whether he exercised 
 due care in going forward or turning back is generally for the 
 jury.^ So the failure to look for a train may be excusable 
 under circumstances of confusion or danger; as where the 
 
 V. Chic, R. I. & Pac. R. R., 84 Iowa, 331 ; Banning v. Chic, R. I. & Pac. 
 R. R, 89 Iowa, 74; Moore v. Keokuk & W. R. R., 89 Iowa, 223; Indi- 
 anapolis, D. & W. R. R. V. Wikon, 134 Ind. 95 ; Gardner v. Detroit, L. & 
 N. R. R., 97 Mich. 240; Houghton v. Chic. & G. T. R. R., 99 Mich. 308; 
 Jensen v. Mich. Cent. R. R., 102 Mich. 307 ; Dawe v. Flint & P. M. R. R., 
 102 Mich. 176; Flynn v. Eastern R. R., 83 Wis. 631; Schomlze v. Chic, 
 M. & St. P. R. R., 83 Wis. 659 ; Sclimgen v. Chic, M. & St. P. R. R., 90 
 Wis. 186 ; Nolan v. Milwaukee, L. S. & W. R. R., 91 Wis. 6; Lenz v. Whit- 
 comb, 96 Wis. 310; Tnm'er c. Hann. & St. Jo. R. R., 74 Mo. 602; St. 
 Louis, &c. R. R. V. Martin, 61 Ark. 549; Gilmore v. Cape Fear & Y. V. 
 R R., 115 N. C. 657; Herlisch o. LouisviUe, N. O. & T. R. R., 44 La. 
 Ann. 280 ; Wright v. Cincinnati & C. R. R., 94 Ky. 114. But see In- 
 ternational & G. N. R. R. V. Dyer, 76 Tex. 156; Gulf, C. & S. F. R. R. 
 V. Anderson, 76 Tex. 244; State v. Baltimore & Ohio R. R., 69 Md. 339. 
 
 1 Piper V. Chicago, Milwaukee & St. P. R. R., 77 Wis. 247 ; Breoken- 
 felder v. Lake Shore & Michigan So. R. R., 44 N. W. Rep. 957 (Mich. 
 1890) ; Railroad v. Dies, 98 Tenn. 655 ; Struck v. Chic, M. & St. P. R. R., 
 58 Minn. 298. 
 
 * Bare v. Pennsylvania R. R., 135 Penn. St. 95; Fisher v. Monongv 
 hela Connecting R. R., 131 Penn. St. 292 ; State r. Union R. R., 70 Md. 
 69; McNeal v. Pittsburg & W. R. R., 131 Penn. St. 184; Pennsylvania 
 R. R. w. Wilson, 132 Penn. St. 27; St. Louis, I. M. & S. R. R. v. Box, 
 52 Ark. 358; Kane v. New York, N. H. & H. R. R., 9 N. Y. Sup. N. E. 
 Rep. 879 (1890) ; Roberts v. Del. & H. Can. Co., 177 Penn. St. 183 ; 
 Davidson v. Lake Shore & M. S. R. R., 179 Penn. St. 227 ; Cookson v. 
 Pitts. & W. R. R., 179 Penn. St. 184. 
 
 » Wasmer v. Delaware, Lackawanna & W. R. R., 80 N. Y. 212; 
 Beiseigel t>. Delaware, L. & W. R. R., 80 N. Y. 218; Greany v. Long 
 Island R. R., 101 N. Y. 419; Sherry o. New York Central & H. R. R. R., 
 104 N. Y. 652 ; Donohue v. St. Louis, I. Mt. & S. R. R., 91 Mo. 357, and 
 see Cassida ». Oregon Railway & Nav. Co., 14 Or. 551. 
 
298 PEESONAL INJUEIE8. [CHAP. V. 
 
 traveller, being lawfully on the tracks, had his attention called 
 to one of two approaching trains, and in avoiding it failed to 
 look out for the other ,^ or -where the traveller's team is run- 
 ning away, and the train does not give warning.^ By the 
 application of the rule stated, it is held to be contributory 
 negligence to attempt to cross a railroad track in full view of 
 a near and approaching train, moving rapidly.^ Whether 
 crossing a track in front of a train is negligence may depend 
 on circumstances ;* but when voluntarily done under dangerous 
 conditions it is negligence ^er ae.^ So it is negligence to fail 
 to look when stepping upon a track where cars are being 
 switched,® or when walking beside the track, and too near it 
 for safety,^ or to attempt to cross between standing cars with- 
 out looking.* The general rule was held not applicable where 
 a train had passed a crossing while the injured person was 
 within a few rods of it and driving at a trot, and had passed 
 on out of his sight so as to induce the belief that it was to 
 continue on its course in the same direction, and there was 
 no reason to suppose that it would immediately return.^ So 
 where, the plaintiff on approaching a crossing saw a train pass, 
 and supposing that another would not immediately follow, 
 
 1 Chicago, Rock Island & Pacific R. R. v. Dignan, 56 El. 487. See 
 also § 142, ante, notes and case cited. 
 
 2 Pratt V. Chic, R. I. & Pac. R. R., 98 Iowa, 563. 
 
 » Potter V. Flint & Pere Marquette R. R., 62 Mich. 22; Collins v. Long 
 Island R. R., 10 N. T. Sup. N. E. Rep. 701; Baltimore & Ohio R. R. v. 
 Colvin, 12 Atl. Rep. 537 (Penn. 1888) ; Allen ii. Pennsylvania R. R., 12 
 Atl. Rep. 493 (Penn. 1888) ; AUerton v. Boston & Maine R. R., 146 Mass. 
 241 ; Granger v. Boston & Albany R. R., 146 Mass. 276 ; International & 
 Great Northern R. R. v. Euehn, 70 Tex. 582; Kelly v. Pennsylvania 
 R. R., 8 Atl. Rep. 856 (Penn. 1887). 
 
 ^ Traders' & Travellers' Accident Co. ti. Wagley, 45 U. S. App. 39. 
 But see Int. & Gt. Northern R. R. v. Kuehn, 2 Tex. Civ. App. 210 ; 
 Cleveland, C. C. & St. L. R. R. v. Baddeley, 150 HI. 328. 
 
 5 Walker v. McLean, 46 U. S. App. 150; Irey v. Penn. R. R., 132 
 Penn. St. 563. 
 
 « Sabine & E. T. R. R. v. Dean, 76 Tex. 73. 
 
 ^ Heffinger v. Minneapolis, M. & N. R. R., 43 Minn. 503. 
 
 » Bertelsen ». Chicago, M. & St. P. R. R., 40 N. W. Rep. 561 (Dak. 
 1888). 
 
 ' Duame v. Chicago & Northwestern R. R., 72 Iowa, 227. 
 
§ 161.J NEGLIGENCE OP PLAINTIFF. 299 
 
 drove upon the track and was struck and injured by some cars 
 which the defendant had purposely detached from the train 
 that had passed, and which, without warning, followed the 
 train over the crossing, it was held that the question of con- 
 tributory negligence was for the jury.^ "Where the plaintiff 
 had been informed that a certain train had passed, and so 
 drove within thirty-five feet of the crossing without stopping 
 to look and listen, when his horse took fright at the train and 
 ran, thereby injuring him, it was held that the question of his 
 contributory negligence was one of fact.^ One who is driving 
 on a road parallel to a railway track is not bound, as matter 
 of law, to look for trains till he discovers a crossing.' Driv- 
 ing rapidly upon the track without looking is negligence.* 
 Where the track was in plain view for a long distance, so that 
 one exercising the slightest care could not have failed to see 
 the approaching train, it was held by a divided court that the 
 plaintiff, having been injured by a collision with the train, was 
 guilty of contributory negligence.^ The general rule obtains 
 although the defendant was guilty of violating some statutory 
 regulation as to the running of its trains.® The mere fact that 
 a train is late, the plaintiff knowing or being bound to know 
 that fact, will not excuse his failure to look and listen before 
 
 1 French v. Taunton Branch R. E., 116 Mass. 537; Ward v. Chic, 
 St. P. &c. R. R., 85 Wis. 301. 
 
 « McCullough V. Minn., St. P. & C. R. R., 101 Mich. 234. 
 
 ^ Gulf, C. & S. F. R. R. V. Greenlee, 70 Tex. 553. 
 
 * Cones V. Cincinnati, I., St. L. & C. R. R., 114 Ind. 328. It has been 
 held that a bicycler must dismount on approaching a crossing, or at least 
 bring his wheel to such a stop as will enable him to look up and down 
 the track and listen in the manner required of a pedestrian ; a " bicycler's 
 stop " by circling the bicycle outside the range of sight of the track is not 
 a stop within the meaning of the rule. Robertson v. Penn. R. R., 180 
 Penn. St. 43. 
 
 6 Straugh V. Detroit, L. & N. R. R., 36 N. W. Rep. 161 (Mich. 1888). 
 See, also. Schilling v. Chicago, Milwaukee & St. Paul R. R., 71 Wis. 
 255, Taylor, J., dissenting; Blaiser v. New York, L. E. & W. R. R., 110 
 N. Y. 638; Bloomfield v. Burlington & Western R. R., 74 Iowa, 607; 
 Matti V. Chicago & W. Mich. R. R., 69 Mich. 109. 
 
 » Kwiotowski v. Chicago & Grand Trunk R. R., 70 Mich. 549; Yancpy 
 V. Wabash, St. Louis & Pacific R. R., 93 Mo. 433. See § 112, ante, and 
 cases cited. 
 
300 PERSONAL INJURIES. [CHAP. V. 
 
 crossing.^ Where one approaching a crossing saw the head- 
 light of the train when it was twenty-five feet distant from 
 him, but, believing it to be stationary, did not stop to ascer- 
 tain with certainty and continued to drive on, it was held that 
 he was guilty of negligence, as matter of law.^ One who 
 attempts to pass between freight cars by climbing over the 
 buffers was held to be, as matter of law, negligent, although 
 the cars had been left standing for an unreasonable time 
 across a public highway, and no engine was attached to them, 
 or in sight.' But where the defendant's railroad train ex- 
 tended several blocks along a public street in violation of law, 
 and the plaintiff, lawfully using the street, attempted to cross 
 between the cars and was injured ; it was held that the block- 
 ing of the street by the defendant was the proximate cause of 
 the injury, and that it was not, as matter of law, negligence 
 for the plaintiff to attempt to cross, and that in so doing he 
 was not a trespasser.* One who, without right, enters upon 
 the track of a railroad company, and remains there when he 
 sees or ought to have seen an approaching train, by collision 
 with which he is injured, is, as matter of law, guilty of con- 
 tributory negligence.* And so a person who, without looking, 
 uses the track of a railroad as a highway, and is injured in so 
 doing, cannot recover for such injury unless it appears that 
 the company was guilty of wanton or wilful wrong in the 
 premises.* Persons with defective sight or hearing are bound 
 to exercise special care on approaching a railway crossing.^ 
 
 1 Howard v. Northern Central R. K., 1 N. Y. Sup. N. E. Rep. 528 
 (1888). 
 
 " Ohio & M. R. R. V. Maisch, 29 lU. App. 640. 
 
 » Magoon v. Boston & Maine R. R., 67 Vt. 746. 
 
 * Hudson ». Wabash Western R. R, 101 Mo. 13. 
 
 s See Bouwmeester u. Grand Rapids & I. R. R., 67 Mich. 87 ; Little 
 Rock & Fort Smith R. R. v. Caveness, 48 Ark. 106 ; Central Raikoad & 
 Banking Co. v. Smith, 78 Ga. 627 ; Hughes v. Galveston, H. & S. R. R., 
 67 Tex. 595; Texas & New Orleans R. R. v. Barfield, 3 S. W. Rep. 665 
 (Tex. 1887); MobUe & Ohio R. R. v. Stroud, 64 Miss. 784; Houston ». 
 Vicksburg, S. & P. R. R, 39 La Ann. 796 ; Brennan v. Del., L. & W. 
 R. R., 53 U. S. App. 51 ; § 73, ante, notes and cases cited. 
 
 » Rodeu V. Chicago & Grand Trunk R. R., 133 111. 72 ; St. Louis & 
 S. F. R. R. V. Whittle, 40 D. S. App. 23. 
 
 ' McKinney v. Chic. & N. W. B. R., 87 Wis. 195 ; Beem v. Tama 
 Electric Co., 104 Iowa, 653. See § 146, ante. 
 
|§ 161-161 a.] NEGLIGENCE OP PLAINTIFF. 301 
 
 The servants of the railroad have a right to presume that a 
 traveller approaching a crossing will look and listen.^ Where 
 one was killed by a collision at a railway crossing, it was held 
 that the ordinary presumption that the deceased had exercised 
 ordinary care for his own safety, was rebutted by the fact that, 
 had he looked, he might have seen the train at a long dis- 
 tance.^ So where the plaintiff's intestate was killed at a point 
 on a railroad crossing where she could have had an unob- 
 structed view, for a distance of nine hundred feet, in the direc- 
 tion from which the train was approaching, it was held that 
 the action for death could not be maintained.^ 
 
 § 161 a. Crossings of Stxeet Railways. — It appears to be 
 held, generally, that there is no absolute rule of law that a 
 person driving or walking along a street must look and listen 
 for an approaching car before entering on the tracks of an 
 electric railway. And a distinction is taken between the duty 
 of the traveller under such circumstances and his duty to look 
 and listen when approaching the crossing of a steam railway, 
 which has an exclusive right of way over its roadbed. The 
 fact that the power used by the street railway is electric, and 
 not derived from horses, has not been deemed suflScient to 
 make the rule applied concerning the crossing of a steam rail- 
 way exactly applicable to a street railway.* But there are 
 
 1 Cleveland, C, C. & St. L. E. R. «. Miller, 149 Ind. 490. 
 
 2 Connerton ». Del. & H. Canal Co., 169 Penn, St. 339 ; Holden ». 
 Penn. R. R., 169 Penn. St. 1 ; and see Seamans w. Del., L. & W. R. R., 
 174 Penn. St. 421 ; SuUivan v. New York, L. E. & W. R. R., 175 Penn. 
 St. 361 ; State v. Maine Central R. R., 76 Maine, 357 ; State v. Boston & 
 Maine R. R., 80 Maine, 430; Smith v. Maine Central R. R., 87 Maine, 
 339; Haetsch v. Chic. & N. W. R. R., 87 Wis. 304; Tobias o. Mich. 
 Central R. R., 103 Mich. 330 ; Smith ». Wabash R. R., 141 Ind. 92; the 
 rule will be otherwise when the deceased could not have seen the train 
 until it was nearly upon him. HaversUck u. Penn. R. R., 171 Penn. St. 
 101. 
 
 « Lees ». Phil. & R. R. R., 154 Penn. St. 46, and see Smith u. Phil. & 
 E. R. R., 160 Penn. St. 117. 
 
 * Robbins v. Springfield Street Railway, 165 Mass. 30; Burhens v. Dry 
 Dock, &c. Railway, 53 Hun, 571 ; Cons. Traction Co. v. Scott, 58 N. J. L. 
 682 ; Cons. Traction Co. o. Haight, 59 N. J. L. 577 ; Thatcher v. Cent. 
 Traction Co., 166 Penn. St. 66 ; Cincinnati Street Railway r>. Snell, 54 
 
302 PBESONAL INJUEIBS. [CHAP. V. 
 
 authorities that hold a contrary rule, considering that the 
 duty of looking and listening before crossing the tracks of a 
 steam railway is equally applicable as to the crossings of an 
 electric street railway,' And it is clear that there may be 
 circumstances which may make the crossing of a street rail- 
 way in front of a car, negligence as matter of law, as where one 
 persisted in such crossing, in spite of warnings.^ It has been 
 held that electric street-cars have, in a qualified way, the 
 right of way, as against persons travelling on foot, or in car- 
 riages ; in like manner as steam railways have ; and that trav- 
 ellers are bound to leave such cars an unobstructed passage, 
 in so far as this is possible.^ But it is said that this rule does 
 not apply to streets crossing the railway ; and that, at such 
 crossings, the railway cars, and other vehicles, moving on the 
 crossing, have equal rights ; * and it is held that the drivers 
 and conductors of street railway cars, whatever the motive 
 power, have, generally, the same rights and duties as to vehi- 
 cles crossing their course that the drivers of such other vehi- 
 cles have.® One is not bound to refrain from crossing a street 
 in front of a trolley car for fear that the motorman will not 
 make use of the appliances provided to reduce speed. And it 
 is the duty of the motorman to stop the oar, if the person 
 crossing apparently does not heed the ordinary signals.® 
 
 Ohio St. 197 ; Baltimore Traction Co. v. Helms, 84 Md. 515 ; Shea v. 
 St. Paul City Railway, 50 Minn. 395. 
 
 1 MoGee ». Consol. Street Railway, 102 Mich. 107 ; and see Fritz v. 
 Detroit Street Railway, 105 Mich. 50 ; Blakeslee v. Consol. Street Rail- 
 way, 105 Mich. 462 ; Boerth v. West Side R. R., 87 Wis. 288; Smith o. 
 Citizens Railway, 52 Mo. App. 36. 
 
 " Omslaer v. Pitts. Traction Co., 168 Penn. St. 519; Schlater v. Wil- 
 bert, 41 La. Ann. 406; Highland Ave. R. R. v. Maddox, 100 Ala. 618; 
 Hickey v. St. Paul City Railway, 60 Minn. 119. See § 162, post. 
 
 » Plewelling v. Lewiston & A. R. R., 89 Maine, 585. 
 
 * O'Neill V. Dry Dock, &o. Co., 129 N. T. 125. In some States, aright 
 of way in favor of street railway oars is created by statute. 
 
 6 See DriscoU v. West End Street Railway, 159 Mass. 142 ; Ellis v. 
 Lynn & Boston R. R., 160 Mass. 341. 
 
 • Consolidated Traction Co. v. Lamson, 59 N. J. L. 297. A person 
 driving along a street which leads into but does not cross another street 
 upon which an electric railway runs is not bound to cross over to the right 
 band side of that street in the direction in which he ia going ; but may 
 
§§ 161 a-162.] NEGLIGENCE OP PLAINTIFF. 303 
 
 § 162. Invitations and TVarnings. — A person approaching a 
 railway crossing with intent to pass it is not bound to antici- 
 pate negligence on the part of the railroad, and so has a right 
 to expect that the customary signals and warnings will be 
 given on the approach of a train. ^ So if the gate at the cross- 
 ing is open, and the gateman is present in charge, the trav- 
 eller has a right to take this as a notice that the track is clear 
 and as an implied invitation to proceed, even at a trot, if he is 
 driving.^ The failure to close the gates, in such a case, is 
 said to modify, to an extent, the duty of travellers on the high- 
 way approaching the crossing to look and listen ; so that the 
 question of contributofy negligence on the part of the traveller 
 will be one of fact for the jury.* But the failure either to 
 close the gates or to give the customary flag-signal, on the 
 approach of a train, will not ordinarily relieve one approach- 
 ing the crossing from the duty of looking to see if a train is 
 approaching.* Generally where the plaintiff attempts to cross 
 in compliance with the advice or invitation, express or implied, 
 of the servants of the railroad, the question of contributory neg- 
 
 use the left hand side unless and until he meets a vehicle coming in the 
 opposite direction. Galbraith v. West End Street Railway, 165 Mass. 572. 
 It is held that the persons operating a street railway car are bound to look 
 and listen before crossing a steam railway. New Torfc, &o. R. R. v. N. J. 
 Electric Co., 60 N. J. L. 52. See, contra, Savannah Railway v. Beasley, 
 94 Ga. 142. 
 
 1 Wichita & Western R. K. «. Davis, 37 Kan. 743 ; McNamara v. New 
 York Cent. & H. R. R. R., 136 N. Y. 650; Harper v. Barnard, 99 Iowa, 
 159; Bait. & Ohio R. R. v. Conoyer, 149 Ind. 524; Chicago & W. I. R. R. 
 V. Ptacek, 171 111. 9. 
 
 a Cleveland, C, C. & I. R. R. v. Schneider, 45 Ohio St. 678; Manleyw. 
 Boston & Maine R. R., 159 Mass. 493. 
 
 8 Blount V. Grand Trunk Railway, 22 U. S. App. 129. See Roberts 
 V. Del. & H. Canal Co., 177 Penn. St. 183; Omaha & R. V. R. R. v. Tal- 
 bot, 48 Neb. 628; Missouri Pacific R. R. v. Geist, 49 Neb. 489; Russell 
 V. Carolina Central R. R., 118 N. C. 1098. 
 
 * Tyler v. Old Colony R. R., 157 Mass. 336; Ellis v. Boston & Maine 
 R. R., 169 Mass. 600. See Soaggs v. Del. & H. Canal Co., 145 N. Y. 201 ; 
 Blaokwell v. St. Louis, I. M. & S. R. R., 47 La. Ann. 268 ; Marks v. Peters- 
 burg R. R., 88 Va. 1 ; Hogan v. Tyler, 90 Va. 19 ; Johnson v. Ches. & 
 Ohio R. R., 91 Va. 171 ; Atlantic & Danville R. R. v. Redger, 95 Va. 
 418; Jobe v. Memphis & C. R. R., 71 Miss. 734; Miller v. Terre Haute, 
 «EC. R. R , 144 Ind. 323 ; Threlkeld v. Wabash R. R., 68 Mo. App. 127, 
 
804 PEESONAL INJUEIES. [CHAP. V. 
 
 ligence will be for the jury.^ But if the act advised or invited 
 to be done be manifestly dangerous, the mere fact that it was 
 incited by the defendant will not be an excuse.^ The mere 
 fact that a warning was uttered to the plaintiff will not be 
 sufficient to charge him with negligence, unless it also appear 
 that he comprehended the warning.^ But if the plaintiff 
 hears and understands the warning, or if the circumstances 
 were such that he must be taken to have heard and under- 
 stood it, he will be guilty of contributory negligence if he 
 attempts to cross.* 
 
 § 163. View of Crossing obstructed. — K the view of the 
 crossing is so obstructed, as by standing cars, that looking, 
 for the approach of the train would be useless, it seems that 
 the plaintiff is not tlierefore obliged to desist from crossing,^ 
 and so when the view is obscured by thick weather,^ or by 
 darkness.^ And it is said that if he approaches such a cross- 
 ing in a vehicle he is not bound to get down and go to a point 
 where he can get an unobstructed view of the track, especially 
 if he has a right to rely on the approach of trains being sig- 
 
 1 Doyte V. Boston & Albany R. R., 145 Mass. 386; Warren v. Boston 
 & Maine R. R., 163 Mass. 484; Pennsylvania R. R. v. Horst, 110 Penn. 
 St. 226, 
 
 * Thus where a man and his wife, each about sixty years of age, at the 
 suggestion of an employee of the railroad, attempted to climb over a train 
 of freight cars standing at a station, it was held that they were guilty of 
 contributory negligence. Howard v. Kansas City, Fort Smith & G. R. R.^ 
 41 Kan. 403. One who, standing on a railway track, turns his back to a 
 moving train merely to satisfy his curiosity cannot rely on a custom as tO' 
 the movement of trains, which, if observed, would have rendered his ac- 
 tion safe. Collins v. Burlington, C. R. & N. R. R., 83 Iowa, 346. 
 
 » Union R. R. v. State, 72 Md. 153. 
 
 * AUerton v. Boston & Maine R. R., 146 Mass. 241 ; Granger v. Boston. 
 & Albany R. R., 146 Mass. 276; Allen v. Pennsylvania R. R., 12 Atl. 
 Rep. 493 (Penn. 1888) ; International & Great Northern R. R. v. Kuehn,, 
 70 Tex. 582. 
 
 6 Norfolk & Western R. R. v. Burge, 4 S. E. Rep. 21 (Va. 1887) { 
 Enders v. Lake Shore & M. S. R. R., 2 N. Y. Sup.. N. E. Rep. 71ft 
 (S. Y. 1888) ; Hughes v. Chic, St. P. & K. C. R. R., 88 Iowa, 404; Chi- 
 cago & Northwestern R. R. v. Hansen, 166 HI. 623. 
 
 * Valin V. Milwaukee & N. R. R., 82 Wis. 1. 
 
 » Van Auken v. Chic & W. M. R. R., 96 Mich. 307. 
 
§§ 162-163.] NEGU6ENCE OP PLAINTIFF. 305 
 
 nailed at that point.^ But if the crossing is particularly or 
 notoriously dangerous, as being so noisy that it is impossible 
 for one approaching it in a vehicle to hear the signals or noise 
 of approaching trains, it is contributory negligence to proceed 
 over the crossing without stopping to listen. So where the 
 view of the track was obstructed by standing cars, and the 
 plaintiff did not stop to see whether a train which he knew 
 to be due was approaching, and it did not appear that he had 
 a right to expect that the approach of trains would be sig- 
 nalled at that point, it was held that he was guilty of con- 
 tributory negligence iji proceeding over the crossing.^ And 
 where a crossing was so overgrown with weeds as to obscure 
 the view of the track to a person approaching it in a wagon, 
 but he might have seen the track by rising to his feet, and 
 there was a strong wind blowing which deadened the sound 
 of the approaching train ; the conduct of the plaintiff in driv- 
 ing over the crossing without rising to look for the train was 
 held to be negligent.* It has been held to be the duty of one 
 driving, on approaching a crossing, not only to look and listen, 
 but to stop his wagon and listen ; * and so as to a traveller on 
 f oot.^ The fact that the view is obscured in one direction will 
 not excuse the failure to look in the direction in which the 
 view is clear.8 If the obstruction of the view of the crossing 
 
 ^ Guggenheim v. Lake Shore & Mich. Sonthem K. R., 66 Mich. 150; 
 Huckshold V. St Louis, ton Mt. & S. R. R., 90 Mo. 518 ; Pearce c. 
 Hamphreya, SI Fed. Rep. 282, and see Mackay v. Kew York Central 
 R. R., 35 N. T. 75 ; Davis r. New York Central & H. R. R. R., 47 N. Y. 
 400 ; Durbin v. Oregon Railway & Nav. Co., 17 Or. 5 ; and contra, Penn- 
 sylvania R. R. t>. Beale, 73 Penn. St. 504 ; North Pennsylvania R. R. v. 
 HeUeman, 49 Penn. St. 60. The Pennsylvania cases have held that it is, 
 as matter of law, the daty of a person driving and approaching a raUroad 
 crossing to alight and lead his horse over the crossing, see Pennsylvania 
 R. R. r. Beale, supra : bnt these cases are disapproved in Pearce v. Hum- 
 phreys, 34 Fed. Rep. 282, 285. 
 
 » Donnelly v. Boston & Maine R. R., 151 Mass. 210. 
 
 » Missoori Pacific R R. c. Lee, 70 Tex. 496. 
 
 « Brady v. Toledo, Ann Arbor & N. M. R. R., 45 N. TV. Rep. 1110 
 (Mich. im.). 
 
 * Pearce v. Humphreys, 34 Fed. Rep. 282. 
 
 * Owens V. Pennsylvania R. R., 41 Fed. Rep. 187 ; Gnta t;. Lake Shore 
 &Mich. So. R. R, si Mich. 291. 
 
 20 
 
306 PERSONAL INJURIES. [CHAP. V. 
 
 is but temporary, as by the smoke of a train, or by a train 
 passing the crossing, it is the duty of the traveller to wait till 
 the temporary obstruction to his vision is removed. " The 
 law lays it down clearly that a man must look and listen. 
 And if by looking and listening he could ascertain the 
 approach of a train and failed to do so, he is guilty of con- 
 tributory negligence and cannot recover." ^ 
 
 SECTION VIII. 
 
 OP TRAVELLERS ON HIGHWAYS. 
 
 § 164. General Rule applied : Safety of 'Way assumed. — " It 
 had. been originally made a question whether he who incum- 
 bers the highway unlawfully should not be made answerable 
 for any direct damage which happened to any one who was 
 injured thereby ; whether the person thus injured was in the 
 use of proper care or not ; and this doctrine was supposed 
 to receive some countenance from Buller's Nisi Prius, 26." ^ 
 
 1 McCrory v. Chicago, Milwaukee & St. P. R. K., 31 Fed. Eep. 531 ; 
 and see Marty v. Chicago, St. Paul, M. & O. R. R., 38 Minn. 108 ; Cin- 
 cinnati, H. & I. R. R. V. Butler, 103 Ind. 31 ; Heaney v. Long Island 
 R. R., 112 N. Y. 122 ; Greenwood v. Philadelphia, W. & B. R. R., 124 
 Penn. St. 572 ; Chase v. Maine Central R. R., 78 Maine, 346 ; Granger v. 
 Boston & Albany R. R., 146 Mass. 241 ; Fletcher v. Fitchhurg R. R., 149 
 Mass. 127. But in a case in Massachusetts, it appeared that the wagon 
 in which was the plaintifi and another person driving was being slowly 
 driven along the highway ; that they did not know that they had arrived 
 at the railway crossing, nor see nor hear the engine or cars ; that there 
 was no sign-board at the crossing ; that the train was moving at the rate 
 of thirty miles an hour ; and that the whistle was not sounded or the bell 
 rung before reaching the ci-ossing. It did not appear that the approach- 
 ing train was visible from the highway. It was held that on these facts 
 the jury would be justified in finding that the plaintiff, a boy of ten years, 
 was in the exercise of due care, and that the further facts that the plain- 
 tiff had his ears tied up, it being a cold day in winter, that he had 
 previous knowledge that the railroad crossed the highway at the place of 
 the accident, that he did not tell his companion of it, nor look nor listen 
 for the train, were not conclusive against his light to recover. Elkins v. 
 Boston & Albany R. R., 115 Mass. 190. 
 
 2 Palmer v. Andover, 2 Cush. 600, 605. 
 
§§ 163-165.] NEGLIGENCE OF PLAINTIFF. 307 
 
 But it is now settled that, in such a case, " two things must 
 concur to support the action ; an obstruction in the road by 
 the fault of the defendant, and no want of ordinary care to 
 avoid it on the part of the plaintiff." ^ But, by ordinary care 
 is intended ordinary prudence which does not require the 
 traveller to look far ahead for obstructions which ought not 
 to be suffered to exist.^ And so it is a general rule that a 
 traveller has a right to assume the safety of a public way or 
 sidewalk, and is not bound to be on the lookout for special 
 danger therein,^ whether by day or night.* So the traveller 
 has a right to expect that abutters maintaining openings in 
 the sidewalk will keep these in a safe condition.^ 
 
 § 165. Knowledge of Defect. — Since the use of a public 
 highway is a matter of right, and generally of necessity, it is 
 held uniformly, that the mere fact that a traveller walks or 
 drives upon a sidewalk or roadway, knowing it to be defective, 
 
 1 Per Lord Ellenborough in Butterfield v. Forrester, 11 East, 60. The 
 application of this rule would seem to be limited to cases in which the act 
 of the defenndant in creating the obstruction is not wantonly malicious. 
 
 ^ Thompson t>. Eridgewater, 7 Pick. 188 ; Palmer v. Andover, 2 Cush. 
 600. 
 
 » Jennings v. Van Schaick, 108 N. Y. 530 ; Buck v. Biddeford, 82 
 Maine, 433; Lindsay v. Desmoines, 74 Iowa, 111; Osborne v. Detroit, 32 
 Fed. Rep. 36; Houston v. Isaacs, 68 Tex. 116; Gordon v. Hichmond, 83 
 Va. 486; Barry v. Terkildsen, 72 Cal. 254; Suburban Electric Co. v. 
 Nugent, 58 N. J. L. 658; Chicago v. Babcock, 143 111. 358; McCormick 
 V. Monroe, 64 Mo. App. 197; Birmingham v. Tayloe, 105 Ala. 170. 
 
 * Owen V. Fort Dodge, 98 Iowa, 281 ; Gutkind v. Ekoy, 97 Wis. 647. 
 
 s Wells V. Sibley, 31 N. Y. Sup. N. E. Rep. 40 (1890) ; McGuire v. 
 Spence, 91 N. Y. 303 ; Turner v. Newburgh, 109 N. Y. 301 ; Howard 
 County V. Legg, 110 Ind. 479. It is not negligence, per se to run along 
 a sidewalk in the dark. Shenandoah v. Erdman, 11 Cent. Rep. 440 
 (Penn. 1888). One who drives at a trot on a street upon a dark night 
 within four or five feet of a red light seen by him at several rods distant 
 and displayed as a warning of an excavation in the street is guilty of 
 contributory negligence. Smith v. Jackson, 106 Mich. 136. Where a 
 plaintiff, while walking on an ice-covered sidewalk, and holding to a 
 fence, let go his hold on meeting another person, and in stepping to the 
 right slipped and fell and was injured, it was held that the question 
 whether he was guilty of contributory negligence was for the jury. Fox 
 V. Fort Edward, 48 Hun, 363. See §§ 181-183, post, notes and cases 
 cited. 
 
308 PERSONAL INJURIES. [CHAP. V. 
 
 is not, as matter of law, conclusive that he is negligent, 
 although this may be a weighty circumstance in determin- 
 ing the issue as one of fact.^ But one who ventures into a 
 dangerous road, knowing its condition, is bound to exercise a 
 degree of care proportionate to the danger. Thus where the 
 plaintiff was injured by falling into a trench in a sidewalk, 
 and it appeared that she had seen the trench almost daily,, 
 and had passed over it shortly before the accident, and that 
 when the accident happened, her attention had been diverted 
 from the trench, it was held that she was guilty of contribu- 
 tory negligence.^ And it is clear that the general rule will 
 not be applied if the way is so obviously dangerous that any 
 reasonable man must have known that it could not be trav- 
 ersed without certain and serious injury. Thus, it was held 
 that one who walked, in the dark, through a street which he 
 knew to be obstructed and dangerous, there being no danger 
 
 1 Kelley v. Pond duLac, 31 Wis. 179; Kenworthy v. Irontoii,41 Wis. 
 647; Ely v. Whitehall, 120 M. Y. 506; Harris v. Clinton, 64 Mich. 447; 
 Davis V. Guilford, 55 Conn. 351; Moore v. Huntington, 31 W. Va. 842; 
 Philadelphia v. Smith, 23 W. N. C. 242; Scranton v. Gore, 124 Penn. St. 
 595 ; Shaw v. Philadelphia, 159 Penn. St. 457 (but see Winner v. Oak- 
 land, 158 Penn. St. 405); Ellis v. Peru, 23 111. App. 25; Simonds v. Bar- 
 raboo, 98 Wis. 40; Bouga v. Weare, 109 Mich. 520; Lowell v. Watertown, 
 58'Mieh. 565; Sias v. Reed City, 103 Mich. 312; Sandwich v. Dolan, 141 
 111. 430; Hazard v. Council Bluffs, 87 Iowa, 51 ; Maloy v. St Paul, 54 
 Minn. 898 ; Fort Wayne v. Breese, 123 Ind. 58 ; Langan v. Atchison, 35 
 Kan. 318 ; Huntington v. Breen, 77 Ind. 29 ; Murphy v. Indianapolis, 83 
 Ind. 76 ; Richmond v. Mulholland, 116 Ind. 173 ; Witman v. Elkhart, 
 122 Ind. 538 ; Bedford v. Neal, 143 Ind. 425 ; Hampson v. Taylor, 15 R. 
 I. 83 ; Graney v. St. Louis, 141 Mo. 180; Chilton v. St. Joseph, 143 Mo. 
 192 ; Birmingham v. Starr, 112 Ala. 88. 
 
 2 Kelly V. Doody, 116 N. Y. 275 ; and see Alline v. Mars, 71 Iowa, 654 ; 
 Walker v. Reidsville, 96 N. C. 382 ; Moore v. Richmond, 85 Va. 538. A 
 like rule was held where the plaintiff walked ofE the end of a sidewalk 
 without looking, she knowing its condition. Plymouth v. Milner, 117 Ind. 
 324, and see King v. Thompson, 87 Penn. St. 365 ; Barnes v. Sowden, 119 
 Penn. St. 53 ; Pee v. Columbus, 168 Penn. St. 86 ; RusseU v. Monroe, 
 116 N. C. 124. On the other hand, it has been held that walking into 
 an opening in a sidewalk in broad daylight is not conclusive proof of neg- 
 ligence. Cantwell v. Appleton, 71 Wis. 463 ; O'Reilley v. Sing Sing, 1 N. 
 Y. Sup. N. E. Rep. 582; Scranton v. Gore, 124 Penn. St. 595, and see 
 Tift V. Jones, 77 Ga. 181. 
 
§ 165.] NEGLIGENCE OP PLAINTIFF. 309 
 
 signals to mark the obstructionSj was negligent.^ So the 
 mere fact that a person is aware that snow or ice has accu- 
 mulated upon a place over or upon which he has a right to 
 pass is not conclusive evidence of want of due care on his 
 part, in entering on such place,^ even although it appears that 
 the person did not think about the ice when entering upon 
 the dangerous place, his mind being occupied with the busi- 
 ness in which he was engaged.* So one falling upon ice on a 
 sidewalk is not necessarily guilty of contributory negligence 
 because he had seen and avoided the ice three days before.* 
 And, generally the mere fact that a traveller in a highway 
 perceive that an obstacle therein is dangerous to persons at- 
 tempting to pass by it, will not be conclusive that he is guilty 
 of contributory negligence in attempting to pass it.^ So 
 although a traveller may know that a bridge is unsafe, yet if 
 he knows that the public use it and uses due care in crossing 
 it, he is not to be charged with negligence.® It has been held, 
 where there were two roads, by either of which the plaintiff 
 might have reached his destination, that it was a question of 
 
 1 Hesser v. Grafton, 33 W. Va. 548. It was held not to be contributory 
 negligence to turn into an unimproved street in the night-time at a place 
 other than the regular crossing. Collins t>. Dodge, 35 N. W. Kep. 868 
 (Minn. 1887). For cases in which plaintiffs were injured as the result of 
 their own carelessness in attempting to cross the draw of a bridge at an 
 improper time, see Splittorf v. State, 108 N. Y. 205 ; Muhr v. New York, 
 2 N. Y. Sup. N. E. Rep. 59 (1888). Where one stumbled upon a plank 
 nailed to a bridge, because he failed to look to see that the bridge was 
 level, he knowing that similar planks were nailed upon other bridges in 
 the neighborhood, it was held that he was gnilty of contributory negli- 
 gence. Feetz V. St. Charles St. B. R., 42 La. Ann. 541. See Seger v. 
 Barkhampstead, 22 Conn. 290. 
 
 2 Dewire v. Bailey, 131 Mass. 169. See §§ 181-183, post, and cases 
 cited. 
 
 » Watkins v. Goodall, 138 Mass. 533. 
 
 * Thomas i'. Mayor of New York, 15 N. Y. Weekly Dig. 378. 
 s Mahoney v. Metropolitan R. R., 104 MavSS. 73. 
 
 • Sheridan o. Palmyra, 180 Penn. St. 439 ; Waud v. Polk County, 88 
 Iowa, 617. So, where one drove a blind horse over a defective bridge, it 
 was held that the question of his contributory negligence was for the jury. 
 Heisey v. Rapho, 181 Penn. St. 561. In Cohea v. Coffeeville, 69 Miss. 
 561, it was held that attempting to cross a bridge known to be dangerous 
 waa negligence, per se. 
 
310 PERSONAL INJURIES. [CHAP. V. 
 
 fact whether the plaintiff was negligent in choosing one rather 
 than the other,^ and so that a traveller, knowing a sidewalk 
 to be defective on one side of the way but good on the other, 
 was not negligent, 'per se, in taking the defective side.^ But 
 it was held that driving upon a bridge, knowing it to be un- 
 safe, when a safe and convenient passage around it was pro- 
 vided, was contributory negligence.^ And so where the 
 traveller unnecessarily stepped over a cavity in a street, left 
 by the lawful removal of a flagstone, there being a safe pas- 
 sage provided around the cavity.* And a like rule is held as 
 to a highway out of repair or obstructed, a safe way, equally 
 convenient, being provided for the traveller.^ 
 
 § 166. Looking out for other Travellers : Driving. — A travel- 
 ler on the highway is bound to the exercise of ordinary and 
 reasonable care to avoid injury by coming in contact with 
 vehicles or with other passengers.^ It is held that a traveller 
 on foot is not bound to look back, or listen, for the coming of 
 another ; ^ nor to make sure that vehicles are not approaching 
 him from behind, the street, not being crowded with vehicles.^ 
 But if a plaintiff has seen a vehicle approaching him on the 
 highway, and by reason of his failure to watch it is run over 
 
 ^ Mechesney v. Unity, 164 Penn. St. 358, and see Douglass u. Mononga- 
 hela Water Co., 172 Penn. St. 435 ; Nichols ». Laurens, 96 Iowa, 388. 
 2 Taylor v. Springfield, 61 Mo. App. 263. 
 8 Neman v. Franklin County, 90 Iowa, 185. 
 
 * Whalen v. Citizens Gas Light Co., 151 N. Y. 70. 
 8 Ball V. El Paso, 5 Tex. Civ. App. 221. 
 
 * Whoever drives horses along the streets of a city is bound to an- 
 ticipate that travellers on foot may be at the crossings and must take 
 reasonable care not to injure them, Murphy v. Orr, 96 N. T. 14 ; and as 
 a foot-passenger has a right to cross the street at any point, the driver is 
 bound to be watchful at all points as well as at the crossings. Moebus v. 
 Hermann, 108 N. Y. 349. See Lockhart v. Lichtenthaler, 46 Penn. St. 
 151. 
 
 T Wiel V. Wright, 8 N. Y. Sup. N. E. Rep. 776 (1890). 
 
 * Undejem v. Hastings, 38 Minn. 485. So where a woman crossing a 
 public street on flagstones laid for the purpose was injured by a passing 
 horse and wagon, it was held that the fact that before attempting to 
 cross, and while crossing, she did not look up or down the street but 
 straight ahead, was not conclusive evidence of want of care on her pari 
 Shapleigh v. Wyman, 134 Mass. 118. 
 
§§ 165-166.] NEGLIGENCE OP PLAINTIFF. 311 
 
 and injured, he may be guilty of contributory negligence.^ 
 And a person who is injured by a carelessly driven vehicle 
 while he is standing in the roadway engaged in conversation, 
 after nightfall, cannot recover for his injuries from the driver 
 of the vehicle, unless it appears that the latter was wantonly 
 and maliciously careless iu driving over the plaintiff.^ It is 
 held not to be, as matter of law, negligent, to drive a blind 
 horse,^ nor to drive a horse which has been in the habit of 
 running away, and which was running away at the time of 
 the accident.* It is the duty of the driver of a vehicle to keep 
 in the travelled roadway, and if he fail to do this, withont 
 excuse, he may be guilty of contributory negligence.^ If the 
 traveller exercises reasonable care in the selection of his 
 horse, vehicle, harness, and other equipage, this is all that is 
 required of him, and he will not be chargeable with negligence 
 if a defect in his equipage concurs with another cause to pro- 
 duce the accident.® It is not negligence, per se, to drive at a 
 rapid gait, even in the streets of a city, and the fact that the 
 traveller so driving violates an ordinance against fast driving, 
 is evidence, only, upon the issue of his contributory negli- 
 gence ; ^ and so is the f^ct that he was driving in violation of 
 
 1 Chisholmw. Knickerbocker Ice Co., 1 N. Y. Sup. N. E. Rep. 743 
 (1888). 
 
 =" Evans v. Adams Express Co., 122 Ind. 362. 
 
 ' Brackenridge v. Fitchburg, 145 Mass. 160; Wright v. Templeton, 
 132 Mass. 49; Daniels v. Lebanon, 58 N. H. 284; Crocker v. Knicker- 
 bocker Ice Co., 92 N. Y. 652; Heisey v. Rapho, 181 Penn. St. 561. 
 
 * Centralia v. Scott, 59 111. 129. It is not contributory negligence on 
 the part of a father to send his two sons on an errand which makes it ne- 
 cessary to cross a railroad track, with a team of horses, at a crossing 
 which they were accustomed to use, the horses being gentle. Illinois 
 Central R. R. d. Slater, 28 HI. App. 73, 129 111. 91. 
 
 » Ham r. Troy & Sandlake Turnpike Co., 6 N. Y. Sup. N. E. Rep. 
 593 (1889) ; Kuhn v. Walker, 97 Mich. 307. 
 
 « Clark V. Barrington, 41 N. H. 44; Tucker v. Henniker, 44 N. H. 317; 
 Noyes v. Boscawen, 64 N. H. 361. 
 
 ' Jetter v. X^ew York Central & Hudson River R. R., 2 Abb. App. Cas. 
 458; Wright v. Maiden & Melrose R. R., 4 Allen, 283; HaU t>. Ripley, 119 
 Mass. 135; Hanlon p. South Boston R. R., 129 Mass. 310; Austin v. Ritz, 
 72 Tex. 391. See § 112. But it is held that racing along a highway is in 
 itself such an act of negligence as to make the parties racing liable for a 
 collision occasioned thereby. Potter v. Moran, 61 Mich. 60; Mittlestadt 
 
313 PERSONAL INJUBIES. [CHAP. V. 
 
 the law of the road.* A traveller, driving, has the right to 
 use street car tracks ; and he is not necessarily negligent in 
 turning, to the left, from one track on to another parallel 
 track.2 And while it is his duty not unnecessarily to obstruct 
 the track of a trolley car, the question whether he is guilty of 
 negligence in so doing is one of fact.^ It has been held that 
 if the traveller contributes to cause the accident by driving a 
 horse which he knows to be vicious, or by driving with one 
 hand disabled so as to interfere with the proper management 
 of his horses, he is, as matter of law, guilty of contributory 
 negligence ; * but it would seem that the question must, or- 
 dinarily, be one of fact. Thus it was held a question for the 
 jury whether driving at night, without lights, it being too 
 dark to distinguish the highway, was contributory negligence.* 
 A bicycle is a vehicle, and is to be so regarded in determining 
 the degree of care to which the rider should be held in the 
 use of the public highways.* Riding a bicycle at a high rate 
 of speed in the centre of a highway is not negligence iper seJ 
 
 V. Morrison, 76 Wis. 265; Cotterill v. Starkey, 8 C. & P. 691, n. 6; Eaton 
 V. Cripps, 94 Iowa, 176. A pedestrian has the right to assume that 
 ordinances regulating the speed at which teams may be driven will be 
 observed. Sandifer v. Lynn, 52 Mo. App. 553. 
 
 1 Spofford V. Harlow, 3 Allen, 176 ; Wrinn v. Jones, 111 Maas. 360 
 Kidder v. Dunstable, 11 Gray, 342; Damon v. Scitnate, 119 Mass. 66 
 Tuttle V. Lawrence, 119 Mass. 276; Smith v. Conway, 121 Mass. 216 
 Randolph v. O'Riordan, 155 Mass. 331 ; Meservey v. Lockett, 161 Mass. 
 332. 
 
 2 Cons. Traction Co. v. Reeves, 58 N. J. L. 573. 
 
 » Camden, &c. Railway v. Preston, 59 N. J. L. 264. Whether the 
 propulsion of a street railway car, painted a conspicuously bright color, 
 along a public street, thereby causing fright tb a horse with injury result- 
 ing therefrom, constitutes negligence, qucere. Cons. Traction Co. v. Behr, 
 59 N. J. L. 477. 
 
 * Stringer v. Frost, 116 Ind. 477; Baltimore & L. Turnpike Co. v. 
 Caswell, 66 Md. 419; Hall v. Ruber, 61 Mo. App. 384. 
 
 « Daniels v. Lebanon, 58 N. H. 284. 
 
 6 Myers v. Hinds, 110 Mich. 300. See Holland v. Bartch, 120 Ind. 46; 
 Mercer v. Corbin, 117 Ind. 450 ; Taylor v. Goodwin, 4 Q. B. D. 228. 
 
 ' Holland v. Bartch, 120 Ind. 46. But a skilled bicycle rider riding 
 on the line of an electric railway in advance of a moving car, without 
 heeding signals or looking behind him, is guilty of contributory negli- 
 leucfe. Everett ». Los Angeles, &c. Railway, 115 CaL 105. 
 
§§ 166-167.] LIABIUTT AS TO WAYS. 313 
 
 CHAPTER VL 
 
 STATUTORY LIABILITY OF MTTNICIPALITIES AS TO WAYS. 
 
 SECTION I. 
 
 PRINCIPLES APPLIED. 
 
 § 167. No IiisUbility at Common Lavr. — While a private cor- 
 poration, being created for its own benefit, stands on the same 
 ground, as to its liability to be sued at common law, as an 
 individual, quasi corporations, like counties, towns, or town- 
 ships, being created by the legislature for purposes of public 
 policy, cannot be sued in a private action for a breach of pub- 
 lic duty, unless the right of action be given by the statute.^ 
 The authorities are divided upon the question whether a like 
 rule applies as to municipalities, like cities or incorporated 
 villages, which are created by special charter, and this ques- 
 tion has been discussed fully in another place.^ But in either 
 case, the liability is statutory, arising when the corporation 
 neglects or omits to perform a duty imposed on all like cor- 
 porations, or on the defendant corporation by the express 
 terms of, or by implication from, its charter, for the public 
 benefit, safety, or convenience. Such a liability is that 
 imposed upon municipalities to maintain and keep safe for 
 
 1 Russell V. Men of Devon, 2 T. R. 667 ; Riddle v. Proprietors of 
 Locks & Canals, 7 Mass. 187 ; Mower v. Leicester, 9 Mass. 247. This 
 rule does not apply to the case of the neglect of the obligations which a 
 municipality incurs when a special duty is imposed upon it, with its con- 
 sent express or implied, from which it derives a special benefit, or when 
 a special authority is conferred upon it at its own request. Eastman v. 
 Meredith, 36 N. H. 295 ; Conrad v. Ithaca, 16 N. Y. 295 ; and see § 58, 
 ante, and cases cited. 
 
 2 See §§ 53, 54, ante. 
 
314 PERSONAL INJURIES. [CHAP. VI. 
 
 travellers, roads, streets, bridges, and public ways, and the 
 statute law generally provides that if, by the breach of such 
 duty, any traveller, being himself in the exercise of due care, 
 suffers injury, the municipality shall be liable in damages 
 therefor.^ The liability attaches when the municipality is 
 charged with the duty and invested with the power of keep- 
 ing its ways in repair.^ At common law, there is no duty 
 imposed on a municipality, or on an abutter on a public way 
 to maintain sidewalks thereon,^ but where the municipal- 
 ity is granted the power to establish the width, grade, and 
 materials of sidewalks, and to cause them to be constructed 
 and repaired by the abutting owners, or to construct and 
 repair them and assess and enforce the costs against the 
 abutting owners, it is liable for an injury caused by neglect 
 to keep them in repair.* But a municipality is not liable for 
 
 1 Bigelow V. Randolph, 14 Gray, 540. At common law, a town is 
 liable to indictment for the insufficiency of its roads and bridges, if negli- 
 gence on the part of the town be proved, but not otherwise. See Mower 
 V. Leicester, 9 Mass. 247. It has been said that in order to render a 
 municipality liable for injuries caused by a defect in a highway, such 
 defect must be such as is an indictable nuisance, see Studley v. Osbkosh, 
 45 Wis. 380; Chicago v. Langlass, 66 111. 361 ; Furnell w. St. Paul, 20 
 Minn. 117 ; Barnes v. Newton, 46 Iowa, 567 ; Atlanta v. Perdue, 58 Ga. 
 607 ; but it is apprehended that, as the liability, in each jurisdiction, 
 depends upon the construction of the local statute, this expression is not 
 to be accepted as embodying a general rule of law. The Public Statutes 
 of Massachusetts, c. 52, § 18, provide that a city or town shall not be 
 liable in the case of an injury from a defect in a way, unless the defect 
 could have been remedied by the exercise on its part of reasonable care 
 and diligence. This statute does not change the rule of law as to what 
 constitutes reasonable care and diligence. Blessington v. Boston, 153 
 Mass. 409. A municipality is liable for an injury caused by a fall from a 
 defective bridge to a street below, although the bridge is on the right of 
 way of a railroad company whose duty it is to keep it in repair. Fowler 
 17. Strawberry Hill, 74 Iowa, 644. As to the liability of private persons 
 or corporations maintaining ways which the public may use for hire, as 
 the payment of a toll, see §§ 66 et seq., ante. 
 
 « See §§ 171, 184-186, post. 
 
 * Lynch v. Hubbard, 101 Mich. 43, and see Detroit v. Blackeby, 21 
 Mich. 84 ; Detroit v. Chaffee, 70 Mich. 80. 
 
 * Young V. WaterviUe, 39 N. W. Rep. 97 (Mich. 1888) ; Sheilhart v. 
 Detroit, 108 Mich. 309. So if the sidewalk is built over private property. 
 Will V. Mendon, 108 Mich. 251. 
 
§ 167.] LIABILITY AS TO WATS. 315 
 
 injuries which are the result, solely, of a defect in the plan 
 by which a street was constructed.^ Under a statute which 
 provided that any city negligently permitting its streets, side- 
 walks, &c. to remain out of repair should be- liable to any one 
 injured thereby, and permitted cities to raise taxes to keep 
 their streets and sidewalks in reasonable repair, a city was 
 held to be liable for an injury caused by a defective walk, 
 although its charter did not impose upon it the duty of keep- 
 ing its walks in repair, or authorize it to levy taxes for that 
 purpose.^ And if a city has ample funds in its treasury, put 
 there for the express purpose of repairing streets and side- 
 walks, it cannot escape liability for an accident caused by a 
 defective walk on the ground that the funds raised by taxa- 
 tion for that year have been exhausted, that the city is pro- 
 hibited by its charter from pledging its credit, and that the 
 money has been raised on the individual credit of members 
 of the common council.^ A statute exempting a city from 
 liability for any misfeasance or non-feasance of its common 
 council or any of the city officials in the discharge of any 
 duty imposed on them as officers, does not relieve the city 
 from liability for failure to discharge any of its corporate 
 functions, one of which is the duty of keeping its streets in 
 repair ; and the officials placed in charge of the streets under 
 the direction of the common council, are mere instruments 
 created to perform for the city its corporate functions, the 
 city being liable for the negligence of such officials.* Where 
 
 1 Hoyt V. Danbury, 69 Conn. 341. 
 
 2 Campbell v. Kalamazoo, 80 Mich. 655. 
 
 * Moore v. Ionia, 81 Mich. 635. In "Whitfield v. Meridian, 66 Miss. 
 570, it was held that lack of funds and of power to enforce contributions 
 of labor to repair streets would exempt a municipal corporation from lia- 
 bility for injuries resulting from defects therein ; but that the mere fact 
 that all the money raised for street purposes had been expended on cer- 
 tain streets, leaving others in an unsafe condition, would not relieve the 
 corporation from liability for injuries occurring by reason of the unsafe 
 condition of such latter streets. See, also, Shelby v. Clagett, 22 N. E. 
 Rep. 407 (Ohio, 1889). 
 
 * Eieling v. Brooklyn, 120 N. Y. 98. See also to the general principle. 
 Gray v. Brooklyn, 50 Barb. 365, 2 Abb. Ct. App. Deo. 267 ; Fitzpatrick 
 V. Slocum, 89 N. Y. 358 ; Hardy v. Brooklyn, 90 N. Y. 435 ; Smith v. Ro- 
 chester, 76 N. Y. 206 ; Maxmilian v. Mayor of New York, 62 N. Y. 160; 
 
316 PEESONAL INJURIES. [CHAP. VI. 
 
 a statute * transferred the primary responsibility for injuries 
 caused by defects in highways from the commissioners of 
 highways to towns, it was held that the negligence of the 
 commissioners was still the foundation of the liability, and 
 that the towns became liable in the cases, and those only, in 
 which the commissioners would have been liable before the 
 enactment of the statute.^ 
 
 § 168. statutes strictly construed ; Proximate Cause: Obstrno- 
 tions lawfully in the 'Way. — The statute (Treating the liability is 
 to be construed strictly, in favor of the defendant. Thus the 
 right to recover under it will be limited to the person in- 
 jured in his own person or property, so that a father cannot 
 maintain an action against the municipality for the loss of 
 the services of his minor son, in his employ, or for expenses 
 incurred in curing the minor, injured by a defect in the high- 
 way for which the municipality was responsible, the right to 
 the earnings of the son not being property within the con- 
 templation of the statute creating the liability .^ Nor, under 
 a statute requiring towns to keep highways in good repair, 
 will the town be liable for maintaining, or permitting to ex- 
 ist, within the limits of the highway, a public nuisance, like 
 a pool of stagnant water, caused by abutters sending their 
 drainage on to the highway, unless the nuisance render the 
 highway unsafe for travel and the plaintiff is thereby in- 
 jured.* So, generally, when the injury is caused by the act 
 of an abutter for which the town is not responsible, and 
 which does not affect the safety of the roadway, as where 
 the abutter suspends a sign over the highway which falls 
 and injures a traveller, liability does not attach.^ In these 
 
 Ham V. Mayor of New Tork, 70 N. Y. 459 ; Moore v. Mayor of New 
 York, 73 N. Y. 238. 
 
 1 New York Laws, 1881, c. 700. 
 
 « Lane v. Hancock, 142 N. Y. 510. 
 
 * Keed v. Belfast, 20 Maine, 246. So where the persons injured were 
 the plaintiff's wife and daughter. Chidsey v. Canton, 17 Conn. 475, and 
 see Harwood v. Lowell, 4 Cush. 310. 
 
 * State V. Burlington, 36 Vt. 521. The rule is otherwise if the exist- 
 ence of the nuisance makes the highway unsafe. Hewison v. New Haven, 
 37 Conn. 475. 
 
 5 Taylor v. Peckham, 8 R. I. 349. See § 179, post. 
 
§§ 167-169.] LIABILITY AS TO WATS. 317 
 
 cases the rule of proximate cause is more strictly applied than 
 in common-law actions. Where, as is generally the case, the 
 statute provides, in effect, that the municipality shall be liable 
 for injuries caused " by reason of " defects existing in the 
 way, the damage, in order to a recovery, must result directly 
 from the want of repairs in the way. It is not enough that 
 the defect in the way may have contributed indirectly to the 
 accident, but the injury must be produced directly by the de- 
 fect, and this must appear to have been the sole cause of the 
 injury ; ^ so that if the negligence of the plaintiff was a joint 
 contributing cause, without which the accident would not have 
 happened, the plaintiff cannot recover.^ Since, in order to 
 charge the municipaKty, its negligence must be the proximate 
 cause of the injury complained of, it is obvious that the 
 municipality will not be responsible for the existence, within 
 the limits of the highway, of a structure or thing placed there 
 by authority of law and which it has not the right to remove, 
 as a telegraph pole placed in the highway by authority of an 
 act of the legislature, and in a location prescribed by the local 
 authority.^ So where in erecting a watering trough within 
 the location of the highway, the selectmen of a town acted, 
 not as agents of the town, but as public officers, charged by 
 the statute with that duty, the town will not be responsible 
 for injuries caused to a traveller by reason of the presence of 
 the trough in the highway.* But, in order to relieve the 
 municipality from liability, it must clearly appear that such 
 was the intention of the statute. Thus where the statute pro- 
 vided that abutters on a highway might construct a sidewalk 
 within the highway, and define its limits by posts, it was held 
 that the provision was not intended to supersede or qualify 
 the general obligation of towns to keep their highways safe.^ 
 
 § 169. Negligence of Third Party contributing. — So, if the 
 negligent act of a third party is a concurrent cause of the in- 
 
 1 Famum v. Concord, 2 N. H. 392, 394. 
 " Horrigan v. Clarksburg, 150 Mass. 218. See § 109, ante. 
 ' Young V. Tarmouth, 9 Gray, 386; Hunt v. Mayor of New York, 109 
 N. Y. 134 ; Curtis v. Rochester & Syracuse K. K., 18 N. Y. 534. 
 * Gushing v. Bedford, 125 Mass. 526. 
 6 Appleton V. Nantaaket, 121 Mass. 161. 
 
318 PEESONAL INJURIES. [CHAP. TI. 
 
 jury complained of, without which it cannot certainly be said 
 that the accident would have happened, the plaintiff is de- 
 barred from a recovery. Thus it was held that a city was 
 not liable for an injury caused by the slipping and falling of 
 the plaintiff upon a sidewalk, the fall being the joint result of 
 the unsafe condition of the sidewalk and of steps leading to 
 it and belonging to a private abutter, down which the plaintiff 
 was passing when he was injured ; ^ but where a hatchway is 
 put into the sidewalk by an abutter, to give access to a cellar 
 beneath, it is the duty of the municipality to see that it does 
 not make the walk unsafe.^ The municipality will not be 
 liable when the negligence of the driver of a carriage was a 
 contributing cause, with a defect in a highway, of the injury ; ^ 
 or where the plaintiff was knocked down by a boy coasting 
 on a sled on a sidewalk, which by such coasting had been 
 rendered slippery and dangerous.* The same rule was held 
 where the injury was caused by a locomotive run on a railway 
 track illegally laid across the highway.® But those cases are 
 
 1 Rowell V. Lowell, 7 Gray, 100. So it is held that the municipality 
 is not liable for an injury occurring through the operation of a derrick by 
 workmen on the highway, although the derrick was insecurely fastened 
 so that if a traveller had been injured by its falling upon him, when not 
 in operation, the defendant might have been liable for such injury. Pratt 
 r. Weymouth, 147 Mass. 245. But in Carterville v. Cook, 29 111. App. 
 495, 129 111. 152, it was held that a municipality was liable for injuries 
 caused to a person by falling from a sidewalk maintained at an unsafe 
 height, without guards, though the direct cause of the accident was the 
 negligence of a third person in pushing the person off the sidewalk. See 
 Sweeney v. Newport, 65 N. H. 86 ; Hardy t>. Keene, 52 N. H. 370. 
 
 2 McClure v. Sparta, 84 Wis. 269. 
 
 8 Kidder v. Dunstable, 7 Gray, 104. It is said that where a woman of 
 the age of discretion voluntarily enters the private carriage of another to 
 ride, and by his carelessness in driving over an obstruction in a public 
 way, is injured, his negligence is imputable to her, and bars a recovery by 
 her against the municipality for the injuries received. See Lake Shore & 
 M. S. R. R. V. Miller, 25 Mich. 274; Mullen v. Owosso, 100 Mich. 103. 
 It is apprehended that these cases do not put the exemption of the munic- 
 ipality from liability upon the true ground. See §§ 105, 106, ante. 
 
 * Shepherd v. Chelsea, 4 Allen, 113. 
 
 6 Vinal V. Dorchester, 7 Gray, 421. See King v. Russell, 6 East, 427; 
 Rex V. Cross, 3 Camp. 225; Kelsey v. Glover, 17 Vt. 708; Tallahassee ». 
 Fortune, 3 Fla. 19. 
 
§§ 169-170.] LIABILITY AS TO WATS. 319 
 
 to be distinguished in which the rery existence of the defect 
 in the way is due to the negligence of a third party, since, 
 whatever the cause of the defect, the municipality is liable for 
 injuries caused thereby, it having due notice of the existence 
 of the defect. Thus if a third party should leave standing 
 within the travelled limits of the way a sled loaded witli logs, 
 the municipality having notice of that fact, and a traveller 
 without notice, and exercising due care, should drive in the 
 dark, against the obstacle and thereby be injured, tlie munici- 
 pality would be liable.^ But if a defect exist in the highway, 
 as ice or snow carelessly allowed to remain upon the road, 
 and by joint reason of the careless . driving of a sled loaded 
 with logs and of the defect in the way, the traveller is in- 
 jured ; then the municipality could not be held liable.^ So, iu 
 an action brought against a town to recover for injuries re- 
 sulting from defects in a bridge, it was held that if the defect 
 did not arise from any neglect of duty by the defendant, and 
 if it had no knowledge of or reason to suspect the existence 
 of a defect, then it would not be liable.^ 
 
 § 170. Accident contributing : Innocent Act of Third Person : 
 Runaway Horses. — In a leading case in Massachusetts, the 
 rule was laid down that when the contributing cause of the 
 injury was in itself purely accidental, occurring without the 
 fault or negligence of the plaintiff or of a third person, and 
 such as ordinary prudence or sagacity could pot guard against, 
 the plaintiff may still recover. In this case the contributing 
 cause of the injury was the failure of a part of the carriage in 
 which the plaintiff was driving, and the defect charged was 
 the want of a sufficient railing at the side' of the way. The 
 court said : " It is in the ordinary course of events, and con- 
 sistent with a reasonable degree of prudence on the part of the 
 traveller, that accidents will occur : horses may be frightened, 
 the harness may break, a bolt or screw may be dropped. To 
 
 1 See Snow ». Adams, 1 Cush. 447. So where the defect was a loose 
 wire lying in the highway which had become charged with electricity by 
 coming in contact with the wires of an electric line. Bourget v. Camr 
 bridge, 159 Mass. 388. 
 
 2 Kidder v. Dunstable, 9 Gray, 104. 
 » Masters v. Warren, 27 Conn. 293. 
 
320 PERSONAL INJURIES. fCHAP. TI. 
 
 guard against danger by such accidents, the law requires 
 suitable railings or barriers . . . and -whatever may be re- 
 quired for the safety of the traveller." * Since there are an 
 indefinite number of concurring causes to produce every 
 event, no act, not negligent, will have the effect to bar the 
 plaintiff from a recovery, and it is accordingly held that a 
 town may be liable for a defect in a highway although the 
 innocent act of a third party is a concurring cause of the 
 injury complained of. Thus it appeared that a telephone wire 
 sloped down from the place at which it was fastened and lay 
 about a foot above the surface of the highway ; that the wire 
 caught in the wheels of a wagon approaching the wagon in 
 which the plaintiff was driving, and that the plaintiff saw the 
 wire fifty feet away, and called to the driver of the other 
 wagon who paid no attention to him, and that the plaintiff 
 was unable to turn out or change his seat and was injured in 
 bending back in his seat to avoid the wire. The court said ; 
 " If, in the opinion of the jury, the other driver was negligent 
 as towards the plaintiff, and thus had a hand in causing the 
 injury, no doubt the plaintiff cannot recover. . . . But the 
 jury might have found that the other driver was not negli- 
 gent, and, indeed, that, until it was too late, he was wholly 
 unaware of his entanglement or that there was a wire in the 
 road at all. If so, his co-operation stood on no different foot- 
 ing from the force of gravitation. A town is not exonerated 
 because other causes co-operate with the defect ; if it were, it 
 would never be liable. ... To an extent not yet perhaps ex- 
 actly determined, wrong-doers are presumed not to contem- 
 plate wrong-doing by others unless they are shown in fact and 
 
 1 Palmer v. Andover, 2 Cnsli. 600, and see Hunt v. Pownall, 9 Vt. 418 ; 
 Howard v. North Bridgewater, 16 Pick. 189 ; Rowell v. Lowell, 7 Gray, 
 100; Winship v. Enfield, 2 N. H. 197; Clark v. Barrington, 41 N. H. 44; 
 Tuckeri). Henniker, 41 N. H. 317; Kelsey v. Glover, 15 Vt. 708; Allen 
 V. Hancock, 16 Vt. 230; Dreher v. Fitohburg, 22 Wis. 675; Houfe v. 
 Fulton, 29 Wis. 296; Kelley v. Fond du Lac, 31 Wis. 179. The rule is 
 applied although the defect or dangerous object which is a concurring 
 cause of the accident is outside of the travelled track, if it be within the 
 limits of the location of the way. See Morse v. Bichmond, 41 Vt. 435 ; 
 Hodge V. Bennington, 43 Vt. 451 ; Moulton v. Sanford, 51 Maine, 127 ; 
 Perkins v. Fayette, 68 Maine, 152 ; Foshay v. Glen Haven, 25 Wis. 288. 
 
§ 170.J LIABILITY AS TO WATS. 321 
 
 actually to have contemplated it. Therefore, generally, they 
 are not liable if another wrong-doer intervenes between their 
 act and the result. . . . But the mere fact that another human 
 being intervenes is not enough. ... In the case of towns 
 sued for a defect in a highway, the wrongful act of the third 
 person need not intervene subsequently, — it is enough that 
 it co-operates with the defect at the moment, — but the prin- 
 ciple is the same. It is because the act is wrongful, including 
 under this head negligence, not because it is a concurring 
 cause, that the defendant escapes. If the act which concurs 
 with the defect in producing the result complained of is inno- 
 cent, and is of a kind which the defendant is bound to expect 
 and provide for, — such, for instance, as another man's driving 
 upion the road, — the jury may find against the town as well 
 as when a particular state of the weather is the concurrent 
 cause." ^ The application of the rule has been often discussed 
 in the case of accidents in which the running away of a horse, 
 driven upon the highway, has been an antecedent or concur- 
 ring cause of the injury complained of. In Massachusetts, it 
 is held when a horse, while being driven with due care upon 
 the highway, becomes, by reason of fright, disease, or vicious- 
 ness, actually uncontrollable, so that his driver cannot stop 
 him, or direct his course, or exercise or regain control over 
 his movements, and, in this condition, the traveller comes 
 upon a defect in the highway, by which an injury is occa- 
 sioned, that the municipality is not liable for the injury, unless 
 it appears that the accident would have happened even if the 
 horse had not been uncontrollable.^ It was contended in 
 argument that the case should be governed by the rule laid 
 down in Palmer v. Andover,' tlie contributing cause of the 
 injury being an unavoidable accident, but the court said: 
 " The case is unlike that of Palmer v. Andover, . . . for in 
 that case, after the horses broke loose, . . . they ran away 
 
 1 Hayes r. Hyde Park, 153 Mass. 514. 
 
 ' Titos v. Stockbridge, 97 Ifass. 258. Compare Ring v. Cohoes, 77 
 N. Y. 83. 
 
 * 2 Cnsh. 200, see siqjra. See comments upon certain apparent incon- 
 sistencies between the rule in Palmer v. Andover and the later Massachu- 
 setts decisions as to runaway accidents in Honfe v. Fulton, 29 Wis. 196. 
 
 21 
 
322 PERSONAL INJUEIES. [CHAP. VI. 
 
 and did no injury, and if the place where they left the carriage 
 had been ascending ground, the carriage would have remained 
 where it was, and no injury would have happened. . . . But 
 the bolt was drawn out at a place where the carriage was 
 going down hill, and the natural laws of gravitation and mo- 
 tion carried it to the place where the road was defective. It 
 is not inconsistent with . , . that case ... to hold that the 
 defendants are not liable for an injury occasioned, as this has 
 been, by the action of a horse that was, at the time of the ac- 
 cident, unfit for use, and was beyond the driver's control, 
 although the defect in the highway was also a cause of the 
 injury." The rule, as thus expressed, has been followed in a 
 line of cases in Massachusetts,^ in which it is held that if a 
 horse throws his tail over a rein so as to free himself from 
 control for a considerable time, and while so freed comes upon 
 a defect in the way whereby an injury is caused, the town is 
 not liable.^ But it is held that if there be only a momentary 
 loss of control, and the control would have been instantly re- 
 gained if the plaintiff's carriage had not come in contact with 
 the defective place, then the municipality will be liable ; ^ and 
 that, if a horse carefully driven and not escaping from con- 
 trol is caused to step out of the travelled track by an object 
 within the limits of the way which would cause an ordinarily 
 gentle and well-broken horse to do so, so that the traveller is 
 brought in contact with a defect, the town may be liable for 
 the resulting injury. But it is held otherwise if the horse is 
 vicious or ill-broken, and shies at an object which would not 
 startle an ordinarily gentle and well-broken horse.* In Wis- 
 consin, in a well-considered case, it was held, generally, when, 
 besides the defect in the way, there is another proximate 
 cause contributing directly to produce the injury, which cause 
 is not to be attributed to the plaintiffs negligence, nor to that 
 
 1 See Horton v. Tannton, 97 Mass. 266, n. ; Fogg v. Nahant, May v. 
 Nahant, 98 Mass. 578. 
 
 ^ Bemis o. Arlington, Hi Mass. 507 ; Gushing v. Bedford, 125 Mass. 
 526; Soannal v. Cambridge, 163 Mass. 91. 
 
 » Babson v. Rockport, HartweU v. Rockport, 101 Mass. 93. 
 
 * Stone V. Hnbbardaton, 100 Mass. 49 ; and see Gushing v. Bedford, 
 125 Mass. 526 ; Higgins v. Boston, 148 Mass. 484. 
 
§§ 170-171.] LIABILITT AS^O WATS. 323 
 
 of any third person, that the municipality may be liable if the 
 injury would not have been sustained but for the defect in the 
 way.^ While it is to be observed that the law recognizes but 
 one proximate cause for each event, and so the expression of 
 the rule in this case cannot be admitted to be correct, it is 
 evident that by " proximate " the court intend " concurring " 
 cause, and as thus stated the rule would seem to be sound. 
 The court did not decide whether the general rule would apply 
 where a horse, at the time of the injury so received, was in a 
 condition of fright or unmanageableness, but held that, if such 
 a case constituted an exception to the general rule, no such 
 exception existed in the case where a horse should shy or 
 start, or get momentarily out of control.^ The converse of the 
 rule was applied where a horse fell, either from disease or be- 
 cause he was improperly harnessed and driven, against the 
 railing of a bridge which gave way, and it was held that the 
 imperfection of the bridge and railing were not the proximate 
 cause of the resulting accident.^ 
 
 § 171. Wlien the Liability attaches : Dedication : Prescription. 
 — A municipal corporation becomes legally responsible for 
 the condition of its highways, (1) so soon as the same are 
 duly opened for public travel, that is, located, constructed, 
 and accepted by the proper authority ; * or, (2) in those juris- 
 
 1 Houfe V. Folton, 29 Wis. 296. 
 
 * See, to the same efEect, Kelly v. Fond dn Lac, 31 Wis. 179, where the 
 court, referring to Houfe v. Fulton, supra, say : " We believe we were 
 correct in [the] statement of the principle governing the Massachusetts 
 decisions; but ... we are certainly not disposed to go further in the 
 application of it." See Peterson v. Chicago & W. M. R. R., 64 Mich. 
 621 ; Putman v. New York Central & H. R. R. R., 51 N. Y. S. C. 439 ; 
 Olsen V. Chippewa Falls, 71 Wis. 558; Belk v. People, 125 111. 184; 
 Joliet V. Shufeldt, 144 HI. 403 ; Rock Falls r. Wells, 169 111. 224; Yeaw 
 F. Williams, 15 R. I. 20 ; and other cases cited § 99, ante, and notes. 
 
 » McClain v. Garden Grove, 83 Iowa, 235. 
 
 * Bliss V. Deerfield, 13 Rck. 102. See Jones ». Andover, 9 Pick. 148; 
 Bowman v. Boston, 5 Gush. 1. But, after a way has been legally laid out, 
 and a time fixed for the municipality to complete it, and it has, in fact, 
 been opened for travel, travellers have a right to presume that it is a public 
 way, and the duty of keeping it safe will exist from the time of such actual 
 opening. Drniy v. Worcester, 21 Pick. 44, and see Howard v. Mendon, 
 
324 PERSONAL INJURIES. [CHAP. VI. 
 
 dictions where highways may be established by prescription, 
 when a public user is shown, general, uninterrupted, and 
 continued for the length of time necessary to establish a pre- 
 scription. The user being established, the presumption arises 
 that whatever was necessary to create the right was rightly 
 done,i and no evidence beyond the proof of user need be pro- 
 duced. ^ It is held that, in the absence of a statute removing 
 or qualifying the common-law rule on the subject, the munic- 
 ipality is bound to keep in order any street or part of a 
 street which it has graded or improved.^ It has been held that 
 before the dedication of a street can impose upon the munic- 
 ipality the duty of keeping it in repair, there must be an 
 acceptance of it by the proper authority, or else an uninter- 
 rupted user of it by the public for more than twenty years ; * 
 but the cases, generally, do not appear to consider that the 
 rights of the traveller as against the municipality rest upon 
 any prescription or definite lapse of time.^ If the corpora- 
 tion has treated the way as a public street by taking charge 
 
 117 Mass. 585. On the other hand, the corporation may show, as matter 
 of defence, that a road was not in fact duly laid out and accepted, although 
 used and repaired as such. Jones v. Andover, 6 Pick. 146. 
 
 1 A sidewalk in a village became a part of the highway by use and 
 dedication. The plaintiff was injured by falling down some steps leading 
 from the sidewalk to the basement of an abutting building. The steps 
 had always been maintained by the owner of the building without any 
 railing. It was held that any right of the owner to maintain said steps 
 was presumed to have been determined or waived ; and that due considera- 
 tion was to be presumed to have been paid him when he permitted the 
 sidewalk to become a part of the highway, and, so, that the village was 
 liable for injuries caused to a traveller by its failure properly to guard the 
 stairway. Sweeney v. Newport, 65 N. H. 86. 
 
 ' Jennings v. Tisbury, 5 Gray, 73. See Stark v. Lancaster, 57 N. H. 
 88; Conrad i;. Ithaca, 16 N. T. 158; Weet v. Brockport. 16 N. Y. 161; 
 ToddB. Troy, 61 N. T. 506; SeweU v. Cohoes, 75 N. Y. 45; Coates v. 
 Canaan, 51 Vt. 131 ; James v. Portage City, 48 Wis. 677 ; Manderschild 
 V. Dubuque, 25 Iowa, 108; Phelps v. Mankato, 23 Mian. 277; Aurora v. 
 Colshire, 55 Ind. 484. 
 
 « Triese v. St. Paul, 36 Minn. 526. 
 
 * Kennedy v. Cumberland, 65 Md. 514. 
 
 ^ See Detwiler v. Lansing, 95 Mich. 484 ; Boyd v. Springfield, 62 Mo. 
 App. 456 ; Hogan v. Chicago, 168 EI. 551; Union Stock Yards v. KarUk, 
 170 111. 403, and cases cited ante. 
 
§ 171.] LIABIUTT AS TO WAYS. 325 
 
 of it and regulating it, and a traveller is injured by the negli- 
 gent manner in which this is done, the corporation cannot, 
 being sued for such injury, require the plaintiff to prove the 
 regularity of the proceedings by which the way became a 
 street, nor the authority by which the street was established,^ 
 since a mere defect in the form of proceedings in the laying 
 out of the way will not avail as a defence to an action for 
 injuries.^ And it is held that if a municipality permits the 
 public to use a way laid out and partially improved but not 
 formally opened as a street, it is bound to keep such a way 
 reasonably safe.* Sp if a city permits a sidewalk to be main- 
 tained beyond the sidewalk line as fixed by ordinance, and 
 exercises control over it, it is bound to keep the walk in 
 repair.* The liability of a municipality for an injury caused 
 by a defective highway is the same whether the highway was 
 established by a laying out or by a dedication and user.^ But, 
 there being no act done by the municipality from which an 
 acceptance of the way can be inferred, it will not be held 
 responsible for damages caused by defects existing in private 
 ways, although leading into highways and commonly used as 
 thoroughfares ; ^ and this is the rule whether the private way 
 is or is not designated as such by signs or otherwise.'^ In order 
 to establish a highway by prescription, when there is no proof 
 
 1 New York City ». Sheffield, 4 Wall. 189. See Shartie v. Minneapolis, 
 17 Minn. 308; Cleveland v. St. Panl, 18 Minn. 279; Reqna v. Kochester, 
 45 N. Y. 129; Bissell v. New York Central R. R., 23 N. Y. 64 ; Houfe v. 
 Fulton, 34 Wis. 608, 619; Codner v. Bradford, 3 Chandl. (Wis.) 291; 
 Williams v. Cummington, 18 Pick. 312 ; Leavenworth v. Laing, 6 Kan. 
 274 ; McDonongh r. Virginia City, 6 Neb. 90 ; State v. Gibson Commis- 
 sioners, 80 Ind. 478; Norris v. Haverhill, 62 N. H. 89. 
 
 » Seymour v. Salamanca, 137 N. Y. 364. 
 
 » Schafer v. New York, 154 N. Y. 466. 
 
 * Chadron v. Glover, 43 Neb. 733. 
 
 6 Sweeney v. Newport, 65 N. H. 86. 
 
 « Dnrgin v. Lowell, 3 Allen, 398. 
 
 ' Warner v. Holyoke, 112 Mass. 362. But if a town permits a torn- 
 out to exist from the travelled part of its highway to a private way, over 
 adjoining land, with all the characteristic marks of a highway, it will be 
 bound to keep such part of the turnout as is within the location of the 
 highway in suitable repair for the travel customarily passing over it. 
 Stark V. Lancaster, 57 N. H. 88. See Stack v. Portsmouth, 52 N. H. 221. 
 
326 PERSONAL INJURIES. [CHAP. VI. 
 
 of dedication, and where the element of dedication does not 
 subsist, it will be necessary to prove actual public use, general 
 and uninterrupted, and continued for a certain length of time. 
 In general it must be such as to warrant a presumption of 
 laying out, dedication or appropriation, by parties having au- 
 thority so to lay out, or a right so to appropriate, like that of 
 prescription or non-appearing grant in case of individuals. 
 It stands upon the same legal grounds, that is, upon a pre- 
 sumption that whatever was necessary to give the act legal 
 effect and operation was rightly done, though no other evi- 
 dence of it can be produced except the actual enjoyment of 
 the benefits conferred by it.^ It is to be observed that, now, 
 in many jurisdictions, it is provided, substantially, that high- 
 ways shall not be created by mere prescription ; as that, in 
 order to charge the municipality with liability for accidents 
 occurring on a way which has not been formally laid out or 
 accepted, it must appear that the municipality has, within a 
 time certain, made repairs or done other acts of ownership 
 upon the way in question. 
 
 § 172. Duty not to be avoided by Delegation. — If a munici- 
 pality intrusts to a third person not its servant, as to an inde- 
 pendent contractor, the duty of keeping its ways safe from 
 dangers which it knows to exist, or the doing of work which 
 will necessarily be attended with danger, it remains liable to 
 persons injured thereby through the negligence of the person 
 to whom the duty has been intrusted. The rule rests upon 
 the principle that if the performance of a lawful contract 
 will, of necessity, bring wrongful consequences to pass unless 
 guarded against, and if the contract cannot be performed 
 except under the title of the employer, who retains the right 
 of access to the premises, the law requires tlie employer, at 
 his peril, to see that due care is used to prevent harm, what- 
 ever the nature of his contract with those whom he employs.^ 
 
 1 Per Shaw, C. J., in Jennings v. Tisbury, 5 Gray, 73, 74. 
 
 2 Bower v. Peate, 1 Q. B. D. 321 ; Dalton v. Angus, 6 App. Cas. 740 ; 
 Pickard v. Smith, 10 C. B. (k. 8.) 470; Hole v. Sittingbourne & Sheerness 
 Railway, 6 H. & N. 500 ; Storrs v. Utioa, 17 N. Y. 104 ; Detroit v. Corey, 
 9 Mich. 165 ; Prentiss v. Boston, 112 Mass. 43 ; Woodman v. Metropol- 
 
§§ 171-172.] LIABILITT AS TO WAYS. 327 
 
 Thus the municipality is answerable for injuries caused by 
 improperly guarded excavations made in its streets by an 
 independent contractor,^ and for his failure to place lights 
 around such excavations at night when this is a necessary 
 precaution for the safety of the public, although the contractor 
 has agreed to perform the duty.* So the liability of the munic- 
 ipalitj continues as to a street which is being paved by a 
 independent contractor, the work being dangerous.^ The 
 same rule applies when the municipality delegates a work, in 
 its nature dangerous, to the abutters along the line of the 
 way.* If a municipality, by the grant of the exercise of the 
 right of eminent domain to a railway corporation, permit it 
 to build street crossings for its road, the municipality will 
 remain liable for injuries caused by the defective construction 
 of such crossings, and it is held that, if the construction of 
 the crossing causes an obstruction to the highway, the munic- 
 ipality is bound, while the danger lasts, to provide a suitable 
 by-way for travellers.^ It is to be observed that when the 
 obstruction or defect created in the way is purely collateral 
 to the work contracted or delegated to be done, and is en- 
 tirely the result of the wrongful act of the contractor, or 
 person to whom the work is delegated, or of his servants, the 
 employer is not liable therefor.® 
 
 itan R. R., 149 Mass. 335 ; Blessington v. Boston, 153 Mass. 409 ; Circle- 
 ville V. Neuding, 41 Ohio St. 465 ; Jefferson v. Chapman, 27 HI. App. 
 43, 127 DL 438. 
 
 1 Eobbins v. Chicago, 4 WaU. 657 ; St. Paul Water Ca v. Ware, 16 
 Wall. 566 ; Baltimore v. O'Donnell, 53 Md. 110 ; Detroit v. Corey, 9 
 Mich. 165; Circleville v. Neuding, 41 Ohio St. 465 ; Storrs v. Utica, 17 
 K. Y. 104 ; Logansport r. Dick, 70 Ind. 65 ; Birmingham v. McCraiy, 
 84 Ala. 469; Houston v. Great Northern B. B., 50 Tex. 77. 
 
 * McAllister v. Albany, 18 Or. 426 ; Flater v. Fey, 70 Mich. 644 ; and 
 see Miller v. St. Paol, 33 Minn. 134; Barton v. McDonald, 81 CaL 265. 
 
 * Southwell i>. Detroit, 74 Mich. 438. 
 
 * Birmingham v. McCrary, 84 Ala. 469, and see Dooley v. Sullivan, 
 112 Ind. 451 ; Warsaw v. Dunlap, 112 Ind. 576. 
 
 * See Kimball v. Bath, 38 Maine, 219; Phillips «. Yeazie, 40 Maine, 
 96; Willard v. Newbury, 22 Vt. 458; Batty v. Duxbury, 24 Vt. 155; 
 Barber v. Essex, 27 Vt. 62 ; Lowell v. Boston & Lowell R. R., 23 Pick. 
 24; Murphy v. Chicago, 29 Dl. 279. 
 
 * Robbins v. Chicago, 4 Wall. 657, and see §§ 39 «t seq., ante, notes 
 and cases cited. 
 
328 PERSONAL INJURIES. [CHAP. VL 
 
 § 173. Traveller : Who is. — The word " traveller," as used 
 in the statutes creating the municipal liability, intends every 
 one, whatever his age or condition, who has occasion to pass 
 over the highway for any purpose of business, convenience, 
 or pleasure, so long as such purpose is not unlawful. But, 
 in order to recover for injuries caused by alleged defects in 
 the way, it must appear that the injured person was using it 
 for that purpose for which the municipality is bound to main- 
 tain it. " It is for travellers, and their horses, carts, teams, 
 and carriages that highways are to be opened, kept in repair, 
 and amended from time to time. And the statute has not 
 provided that they shall be kept safe and convenient for any 
 others. A street or highway may be put to a use at a partic- 
 ular time and place, and that use be equally foreign to the 
 design of passing and repassing thereon, for the purpose of 
 travel, . . . and the appropriation may require a much better 
 condition of the ground than would be necessary to make it 
 safe and convenient for travellers. Hence, the rule of safety 
 and convenience for the traveller might differ essentially from 
 that which would be applied to a use not provided for or con- 
 templated by the statute. The public have no right in a 
 highway except the right to pass and repass thereon." ^ Thus 
 if a child uses the way as a playground, merely, and while 
 so using it is injured by reason of a defect in it, he cannot 
 recover.2 And it has been held that a town was not liable to 
 
 1 Per Tenney, C. J., in Stinson v. Gardiner, 42 Maine, 248, and see 
 Peck V. Ellsworth, 36 Maine, 393; Leslie v. Lewiston, 62 Maine, 470; 
 Fearsall v. Post, 2 Wend. Ill ; Stackpole v. Healy, 16 Mass. 33 ; Chicago 
 V. Starr, 42 lU. 277. 
 
 2 Blodgett w. Boston, 8 Allen, 237; Tighe v. Lowell, 119 Mass. 472. 
 But where a child under two years of age went into the public street in a 
 country village, for air and exercise, in charge of a brother, eight years 
 old, and the two children stood in the street to watch some boys at play, 
 and the younger ran from his brother and fell into an open ditch and was 
 injured, it was held that he might recover as being a traveller. Bliss v. 
 South Hadley, 145 Mass. 91, and see O'Shaugnessy v. SufEolk Brewing 
 Co., 145 Mass. 569; Gulline ». Lowell, 144 Mass. 491. The fact of a 
 child running and rolling a hoop on a sidewalk, on her way to meet play 
 mates is not inconsistent with her being a traveller. Reed v. Madison, 
 83 Wis. 171. But an adult using a sidewalk solely for the purpose of 
 playing with a dog, has not the rights of a traveller to recover for injuries 
 
§ 173,] LIABILITT AS TO WAYS. 329 
 
 a person who, while stopping in the highway for the purpose 
 of conversation, leaned against a defective railing and was 
 injured thereby.* So if one, not a traveller, uses or steps 
 upon the highway for his convenience in carrying on his busi- 
 ness, and is injured by reason of a defect existing therein, he 
 has no ground of action against the municipality .^ But the 
 mere fact that a traveller lingers or stops in his journey for 
 a reasonable time, for some incidental purpose, will not neces- 
 sarily deprive him of his rights as a traveller. Thus where 
 one stops his horse and alights from his carriage to repair a 
 hole in the roadway,* or stops to pick berries by the roadside,* 
 or to observe a procession or band pass,^ he is not debarred 
 from a recovery if while so stopping he is injured by reason 
 of a defect in the way. In doubtful cases, the question 
 
 caused by a defect therein. Jackson v. Greenville, 72 Miss. 220. In 
 Eeefe v. Chicago, 2 Chic. L. J. 263 (111.), it was held that a child may 
 lawfully be upon the sidewalk for pleasure only, that is to say, for play, 
 and that the city owes the same duty to have the sidewalk in a reasonable 
 state of repair, as to such child, as it does to those who are using the 
 sidewalk for the purpose of passing and repassing on business. The 
 court, in this case, attempts to explain the expression in Chicago v. Starr, 
 42 III. 277, where it was said : " It is to be borne in mind that it is not 
 the duty of the city of Chicago to make its streets a safe playground for 
 children. That is not the purpose for which streets are designed." It 
 is to be observed that the rule, which seems to be supported by the weight 
 of authority, that a defendant owes no peculiar duty towards infant or 
 igrnoraut trespassers (see §§ 76-78, and Note following § 78, ante, 
 and cases cited), applies equally when the defendant is a municipality. 
 See Clarke v. Manchester, 62 N. H. 577 ; Clarke «. Eichmond, 83 Va. 
 355 ; Gaughan v. Philadelphia, 110 Penn. St. 503. 
 
 » Stickney v. Salem, 3 Allen, 374. 
 
 ^ McDougal V. Salem, 110 Mass. 21. In this case a bridge, having a 
 draw, formed part of the highway, and while a vessel was passing through 
 the open draw one of her crew who had got upon the raised leaf of the 
 draw to aid her passage was injured by a defect in the construction of the 
 draw, and it was held that he had no right of action as against the city 
 which was bound to keep the draw in repair. A traveller on a highway 
 guilty of a lack of ordinary care is liable for an injury resulting therefrom 
 to a person engaged in repairing such highway, and in the exercise of due 
 care. Riley o. Farnum, 62 N. H. 42. 
 
 ' Babson v. Bockport, 101 Mass. 93. 
 
 * Britton r. Cummington, 107 Mass. 347. 
 
 * Varney ». Manchester, 58 N. H. 430. 
 
330 PERSONAL INJURIES. [CHAP. VI. 
 
 whether the plaintiff was in fact a traveller will be for the 
 jury,^ but it is held that the question will not be submitted 
 to the jury when there is no evidence tending to show that 
 he was not a traveller.^ 
 
 SECTION II. 
 
 DEFECTS IN HIGHWAYS. 
 
 § 174. What are : Generally. — The statutes creating the mu- 
 nicipal liability provide, in substance, that highways shall be 
 kept in repair so as to be safe and convenient for travellers. 
 Thus the municipality is not liable except for such defect or 
 want of repair as makes the highway unsafe or inconvenient. 
 On the other hand, anything in the state or condition of the 
 way which makes it unsafe for ordinary travel is a defect or 
 want of repair, whether the fault be in the construction of the 
 way itself, or in obstructions carelessly permitted to be placed 
 in or upon it ; whether by the operation of natural causes, or 
 by the act of public officers, private individuals, or corpora- 
 tions.2 Thus a hole, trench, or excavation in a highway, 
 caused by an imperfect laying out or working of the highway, 
 or by travel,* or by the operations of an abutting owner,^ may 
 be a defect.® So logs, piled within the limits of the highway 
 
 1 Hunt V. Salem, 121 Mass. 294. 
 
 2 Norris v. Haverhill, 65 N. H. 89. 
 
 « Barker v. Roxbury, 11 Allen, 318 ; King v. Oshkosh, 75 Wis. 517 ; 
 Pettengill v. Yonkers, 116 N. Y. 558. The negligence of the municipal- 
 ity must be shown in order to make it liable for injuries resulting from 
 obstructions placed in a street by a trespasser, Davis v. Omaha, 47 
 Neb. 836. 
 
 * Merrill v. Wilbraham, 11 Gray, 154. 
 
 6 Philadelphia v. Smith, 23 W. N. C. 243. A coal-hole in a sidewalk, 
 if 80 constructed as to be dangerous, is a defect. Hanscom v. Boston, 
 141 Mass. 242 ; McGaffigan v. Boston, 149 Mass. 289 ; Dickson v. Hollis- 
 ter, 123 Penn. St. 421. An open well in the travelled part of the highway 
 is a nuisance for the existence of which the municipality is responsible. 
 Willard v. Newbury, 22 Vt. 458; Batty v. Duxbury, 24 Vt. 155. 
 
 ' McGrath v. Bloomer, 73 Wis. 29; Dooley v. Sullivan, 112 Ind. 451; 
 Lincoln v. Beckman, 23 Neb. 677 ; Eequa v. Rochester, 45 N. Y. 129. It 
 is no defence to an action for an injury caused by a defective sidewalk 
 
§§ 173-174.] LUBILITY AS TO WAYS. 331 
 
 by an abutter,^ or a post standing within the line of travel,^ 
 or a show-board partly supported within the limits of the side- 
 walk,3 or a decayed and dangerous tree,* or a plank projecting 
 above the level of the way at a crossing,^ or a man hole, in a 
 sidewalk, having an insufficient cover,* or dangerous machin- 
 ery needlessly left in the way,^ may constitute a defect for the 
 existence of which the municipality will be responsible. And, 
 in the absence of a statutory limitation of the liability, this 
 exists equally as to concealed defects and as to those which 
 are obvious upon inspection ; as where the defect was the 
 weakness of a stone ^lab in a sidewalk in a city, covering a 
 vault which was appurtenant to an abutting estate, and it was 
 held that a foot-passenger injured by the breaking of the slab 
 as he passed over it might recover as against the city.^ But 
 the rule seems to be otherwise when the municipality is not 
 itself responsible for the existence of certain concealed de- 
 
 that such sidewalk was not built by the city. Champaign v. McGinnis, 
 26 111. App. 338, and see §§ 43, 172, ante. So where a highway had been 
 excavated by the owners of the fee, and made impassable for teams, and a 
 barricade had been erected against them, and a person using a much trav- 
 elled foot-path fell into the excavation, it was held that the municipality 
 was liable for permitting the encroachments, and for not keeping the 
 highway safe. Horey v. Haverstraw, 47 Hun, 356. 
 1 Snow V. Adams, 1 Cush. 447. 
 
 * Cogswell V. Lexington, 4 Cush. 307. 
 
 * Langan v. Atchison, 85 Kan. 318. 
 
 * Chase v. Lowell, 151 Mass. 422 ; Gubasco v. New York, 14 Daly, 559 ; 
 Weller v. McCormick, 52 N. J. L. 470; Glantz v. South Bend, 106 Ind. 
 305. 
 
 * Winn V. Lowell, 1 Allen, 177. See French v. Brunswick, 21 Me. 29. 
 « Lincoln v. Detroit, 101 Mich. 245. 
 
 "> Osage City v. Larkins, 40 Kan. 206. The rule is otherwise if the 
 machinery is placed in the highway for a legitimate purpose. Wood 
 V. Independent School Dist. of Mitchell, 44 Iowa, 27. Where a city per- 
 mitted a street-car company to locate a turn-table in the public street, in 
 such a manner that, in using it, a part of a car would project over the 
 sidewalk, it was held that the existence of the turn-table did not constitute 
 a street obstruction, the city having exercised a discretion iu the premises 
 which was not revisable, and the sidewalk having no right to freedom from 
 encroachment superior to that of the carriage-way. Fitch v. New York, 
 23 J. & S. (N. Y. S. C.) 494. 
 
 s Bm-t V. Boston, 122 Mass. 223. See Hand v. Brookline, 126 Mass. 
 
 324. 
 
332 PERSONAL INJCEIES. [CHAP. VL 
 
 fects. Thus it is held that the fact that a defective cess-pool is 
 constructed by strangers under the surface of the street will 
 not make the municipality liable for injuries caused thereby, 
 unless it had notice of the existence of the defect ; the mere 
 fact of the existence of the cess-pool within the limits of the 
 way not being decisive of negligence on the part of the mu- 
 nicipality, since many uses may properly be made of land 
 within the limits of a public way, and beneath the surface 
 thereof, which are not inconsistent with the exercise of the 
 public easement.^ And " the traveller may be subjected to in- 
 convenience or hazard from various sources, none of which 
 would constitute a ' defect or want of repair' . . . for which 
 the town would be responsible. He might be annoyed by the 
 action of the elements ; . . . against which . . . the town 
 would be under no obligation to furnish him protection. He 
 might be obstructed by a concourse of people, by a crowd of 
 carriages ; his horses might be frightened by the discharge of 
 guns, the explosion of fireworks, by military music, by the 
 presence of wild animals ; his health might be endangered by 
 pestilential vapors, or by the contagion of disease ; and these 
 sources of discomfort and danger might be found within the 
 limits of the highway, and continue for more than twenty-four 
 hours, and yet that highway not be, in any legal sense, defect- 
 ive or out of repair. . . . There are nuisances upon travelled 
 ways for which there is no remedy against the town. ... If 
 the owner of a distillery or of a manufactory adjoining the 
 street of a city, should discharge continuously from a pipe . . . 
 opening towards the street a quantity of steam or hot water, 
 to the . . . injury of passers-by, they must . . . seek redress 
 in some other mode than by an action for a defective way. If 
 the walls of a house adjoining a street in a city were erected 
 in so insecure a manner as to be liable to fall upon persons 
 passing by, or if the eaves-trough or water conductor was so 
 arranged as to throw a stream from the roof upon the side- 
 
 1 Hoey V. Natick, 153 Mass. 528. It was held that the momentary 
 negligence of a draw-tender, in operating the draw whereby a traveller 
 was injured, the draw and its approaches being safe and sufficient, did 
 not create a defect in the highway for which the city bound to maintain 
 the way would be answerable. Butterfield v. Boston, 148 Mass. 544. 
 
§§ 174-175.] LIABILITY AS TO WATS. 333 
 
 walk, there being in either case no structure erected within or 
 above the travelled way, it would not constitute a defect in 
 the way." ^ It is held that a person driving on a street rail- 
 way track assumes the ordinary risks attending such use ; such 
 as the dropping of a wheel into a rut outside the rail, worn 
 by such frequent dropping of wheels ; ^ and that a municipal- 
 ity is not chargeable with negligence when an accident which, 
 according to common experience was not likely to happen, 
 occurs to a traveller by reason of some slight defect in a way, 
 such as a slight depression in the middle of a flagged side- 
 walk, which had existed for several years without any acci- 
 dent ; * or for an injury caused by the fright of a horse at a 
 noise produced by the contact of a wheel of a carriage with a 
 stone in the street.* 
 
 § 175. General Obligation as to Constmction and Maintenance 
 of Ways. — It is the duty of the municipality so to construct 
 and maintain its public ways that these shall be safe and con- 
 venient for ordinary use and travel. In performing this duty, 
 the corporation is bound to exercise ordinary care and dili- 
 gence, adapted to the work in hand, but it is not bound to 
 provide against the possibility of accident.* A mere error of 
 judgment in laying out a way is not negligence. ^ A munici- 
 palit\- is not boiind to pave a street with a particular material, 
 or in a particular method.^ The liability of the municipality, 
 if it exists at all, is absolute, and, after reasonable or statutory 
 notice and opportunity to repair, the corporation will be re- 
 sponsible for injuries resulting from want of repair in the way, 
 and the question will not be open whether the corporation 
 
 1 Per Hoar, J., in Hixon v. Lowell, 13 Gray, 59, 63. 
 
 » Kornetzski v. Detroit, 9i Mich. 341. 
 
 ' Beltz V. Yonkers, 148 N. Y. 67. 
 
 * Bowes V. Boston, 155 Mass. 344. 
 
 » Randall v. Cheshire, 6 N. H. 147; Bishop v. Schuylkill Township, 8 
 Atl. Rep. 449 (Penn. 1887). So as to draw or swing bridges forming a 
 part of the highway, Joliet ». Verley, 35 LI. 58, and as to sidewalks, 
 Chicago & Alton R. R. v. Springfield & Northern R. R., 67 HI. 143 ; 
 Chicago o. McGiven, 78 HI. 347. 
 
 « Betts V. Gloversville, 8 N. Y. Snp. N. E. Rep. 795 (1890). 
 
 f Megaree v. Philadelphia, 153 Penn. St 340. 
 
334 PERSONAL INJURIES. [CHAP. VI. 
 
 Bad, in fact, exercised diligence in keeping the way in repair.^ 
 So where the engineer of a city furnished a defective plan for 
 a bridge, and the bridge, being built in accordance with it, 
 fell, it was held that the city was liable for resulting injuries.* 
 The same general rule is applied in fixing the liability of the 
 licensees of the municipality. Thus where it appeared that a 
 pole erected by a defendant street railway company for the 
 purpose of supporting its trolley-wires constituted a dangerous 
 obstruction in the highway, by reason of which the plaintiff 
 was injured ; it was held not to be a defence to the action that 
 the pole was located and maintained in accordance with the 
 municipal charter aud ordinances.* But the municipality will 
 not be liable for the operation of causes which it had neither 
 the power nor the right to control. Thus if it keeps its high- 
 way within the defined limits of the location in suitable repair, 
 it has performed its duty, and is not responsible for an injury 
 caused by the narrowness, crookedness, or inconvenience of a 
 highway which has been duly laid out or located by some other 
 authority.* When the defect alleged consists in the improper 
 construction of a way or sidewa,lk, and the testimony is con- 
 flicting, or the inferences to be drawn from it are doubtful, 
 the question whether the construction was safe and proper is 
 for the jury.^ 
 
 1 Prindle v. Fletcher, 39 Vt. 257; Clark t;. Corinth, 41 Vt. 449 ; Ward 
 V. Jefferson, 24 Wis. 342. 
 
 ' Dayton v. Pease, 4 Ohio St. 80, and see Cincinnati v. Stone, 5 Ohio 
 St. 38; City of New York v. Sheffield, 4 Wall. 189. 
 
 » Cleveland v. Bangor St. R. R., 86 Maine, 232. 
 
 * Billings V. Worcester, 102 Mass. 829. 
 
 6 Shippey v. Au Sable, 6.5 Mich. 494; Kendall v. Albia, 73 Iowa, 241; 
 Gosport V. Evans, 112 Ind. 133; Tabor v. St. Paul, 36 Minn. 188. Thus 
 the question whether glass set in a sidewalk to afford light to an area be- 
 low is unsafe by reason of its smoothness or slipperiness is a question of 
 fact. Chicago v. McGiven, 78 111. 347. An excavation made in a street 
 by the authorities, so as to cause an abrupt descent thereto from a public 
 alley, and render egress from the alley to the street dangerous, is a defect. 
 Requa v. Rochester, 45 N. Y. 129. But a step, properly constructed, 
 from a sidewalk to a street crossing, is not a defect for which the munic- 
 ipality will be responsible. If, however, the alleged defect consist in the 
 decay of the step, thereby making it dangerous, the question, ordinarily, 
 will be one of fact. Miller v. St. Paul, 38 Minn. 134. In an action 
 
§§ 175-176.] LIABILITY AS TO WATS. 335 
 
 § 176. Defects arising outside of the Way. — It is a general 
 rule that municipal corporations are not liable for injuries 
 caused by the condition of things existing outside of the 
 highway.^ Thus a city is not liable for an injury received 
 by a traveller by falling into an excavation unguarded by 
 lights or railings, situated just outside the limits of a public 
 street in a vacant lot upon which the plaintiff entered volun- 
 tarily, in the night-time, to witness the licensed exhibition of 
 a circus,^ but it was held that an excavation made for munic- 
 ipal purposes, close to a street crossing, was a defect for 
 which the municipality might be liable.^ The general rule 
 stated obtains althotlgh the traveller when he receives the 
 injury is within the limits of the highway. Thus it is held 
 that a city is not liable for an injury caused to a foot- 
 passenger on a sidewalk which the city is bound to keep in 
 repair, by reason of the falling upon him of an overhanging 
 mass of snow and ice from a building not owned by the city, 
 this not being a defect or want of repair in the highway 
 within the meaning of the statute creating the liability.* 
 The rule has been extended to the case of an injury received 
 by reason of the falling of a sign, suspended from a building 
 owned by an abutter, into the street ; ^ and it was held that a 
 
 against a city for injuries caused by an explosion at a man-hole in a 
 street, it appeared that steam-heating pipes had been laid so near gas 
 pipes that the gas pipes, being dislocated by the digging and softened by 
 the heat, had leaked, and a consequent accumulation of gas, becoming 
 ignited, had probably caused the explosion. The steam-heating entei^ 
 prise was a new one, but was property authorized by charter and city 
 ordinance. There was no positive proof of any lack of care in conducting 
 the work of locating the pipes, or that the explosion ought to have been 
 anticipated. It was held, on these facts, that negligence on the part of 
 the city had not been shown. Hunt v. New York, 109 N. Y. 134. 
 
 1 Keith V. Easton, 2 Allen, 552; Barber v. Koxbnry, 11 Allen, 818; 
 Beall V. Athens, 81 Mich. 536; Goodin v. Des Moines, 55 Iowa, 67; 
 Haines i-. Barclay Township, 181 Penn. St. 521. See § 190, post. 
 
 s Morgan v. Hallowell, 57 Maine, 175, and see Biggs v. Huntington, 
 32 W. Va. 55. 
 
 » Hall V. Manson, 99 Iowa, 698. 
 
 * Hixon V. Lowell, 13 Gray, 59. 
 
 » Taylor v. Peckham, 8 R. I. 349. Where an injury was caused by 
 the fall of a heavy, unfastened theatre bill-board which stood at the 
 
336 PERSONAL INJURIES. [CHAP. VI. 
 
 rope, stretched over the highway, and fastened at each end 
 to objects outside the location, was not a defect for which 
 the municipality would be liable in case of accident.* But an 
 important exception to the general rule arises when the cor- 
 poration has left the line of the location of the way unmarked 
 and undesignated, so that a traveller, in the exercise of due 
 care, cannot distinguish it, and, passing outside of the loca- 
 tion, is injured by some defect apparently within the limits 
 of the way. Thus where the line of the highway was not 
 designated by visible objects, and travellers had been accus- 
 tomed to drive outside the limits of the location, and the 
 plaintiff, so driving, was injured by coming into contact with 
 a post standing outside of but near the true line of the high- 
 way, the corporation was held to be responsible.^ It is obvi- 
 ous that the traveller, in such cases, passes over the line of 
 the location by the invitation or procurement of the corpo- 
 ration, and so it is held that the municipality is liable for 
 injuries caused by a defective sidewalk which it has built 
 and maintained as such, or of which it has assumed control, 
 although such sidewalk be, in fact, without the limits of the 
 location ; * provided that the boundary line of the highway is 
 not so marked and defined as to inform travellers whether 
 
 entrance of a theatre near the sidewalk, where it was likely to be blown 
 over, the municipality was held liable. Carson v. Ottumwa, 102 Iowa, 99. 
 1 Barber v. Roxbury, 11 Allen, 318. The opinion in this ease was by 
 the majority of the court, and distinguishes the case from those in which 
 the objects overhanging the way were fixed and permanent structures. 
 See Drake v. Lowell, 13 Met. 292, and § 179, post. Where by the 
 order of a judge of a State court, a rope was stretched across a public 
 street with the intent to prevent travel, the noise of which disturbed the 
 court, it was held that the city was not liable to a traveller in the street 
 who was injured by the rope. This was upon the ground that when the 
 court, in its discretion, deems it essential to the proper administration of 
 justice to close streets, so as to prevent noises which disturb the proceed- 
 ings of the court, it has a right to do so. Belvin v. Richmond, 85 Va. 
 574. 
 
 " Coggswell V. Lexington, 4 Cash. 307, and see Hayden v. Attlebor- 
 ough, 7 Gray, 388. 
 
 * O'NeiU V. West Branch, 81 Mich. 544 ; Poxworthy ». Hastings, 25 
 Neb. 133; Chadron ». Glover, 43 Neb. 733 ; Mansfield v. Moore, 124 LL 
 133. 
 
§§ 176-177.] LIABILITY AS TO WATS. 337 
 
 they are within the limits of it.* So, if a municipality de- 
 posits, or permits others to deposit, refuse matter in a river, 
 close to, and adjoining the end of a public street, so that the 
 deposit appears to make a prolongation and part of the street, 
 and the same is dangerous to one stepping thereon, the cor- 
 poration may be liable to one injured by stepping upon it.^ 
 
 § 177. Defect or Dangers existing outside the Travelled Track. 
 — It is apprehended that the duty of the municipality to 
 keep the way in repair throughout, from one bound of the 
 location to the other, will depend, in each case, upon the de- 
 gree of use to which it may fairly be expected that the way 
 will be subject. Thus it has been held that a city which 
 opens a sidewalk to public travel is bound to keep every part 
 of it in repair ; ^ and that if a city maintains a bridge as a 
 part of the highway, it is its duty to see that every part of 
 the bridge is kept safe for travellers.* But, whatever may 
 be the obligation of the municipality, as to the streets of a 
 city or populous village, it is held, generally, that towns are 
 not bound to keep their highways in suitable condition for 
 travel in their whole width as laid out, and that their liability 
 for accidents is limited to those which occur by reason of de- 
 fects in the " worked " or travelled track. So if a traveller, 
 without excuse or necessity, deviates from the travelled track, 
 this being in a safe and suitable condition for travel, and by 
 reason of his so doing, meets with an injury from some de- 
 fect in the way, existing outside the track, the town will not 
 be responsible.^ As to such portion of the way as the munic- 
 
 1 Jewhurst v. Syracuse, 108 N. Y. 303. See Harwood v. Oakham, 152 
 Mass. 421. 
 
 " Ray j>. St. Paul. 40 Minn. 458. 
 
 » Roe V. Kansas, 100 Mo. 190; Goeltz v. Ashland, 75 Wis. 642. 
 
 * Walker b. Kansas, 99 Mo. 647, overruling Tritz v. Kansas, 84 Mo. 
 632. 
 
 6 Kelley v. Fond du Lac, 31 Wis. 179 ; Beall v. Athens, 81 Mich. 
 536; Howard v. North Bridgewater, 16 Pick. 189; Smith v. Wendell, 7 
 Cush. 498; Keith v. Easton, 2 Allen, 552; Moran v. Palmer, 162 Ma-ss. 
 196; Tasker v. Farmingdale, 85 Maine, 523 ; Sykes v. Pawlet, 43 Vt. 446; 
 Kling V. Kansa.s, 27 Mo. App. 321. Where a horse took fright and 
 brought the driver into collisioa vrith a blasted rock lying out of the 
 
 22 
 
338 PERSONAL INJDEIB8. [CHAP. VI. 
 
 ipality has graded and improved, the ordinary obligations, 
 of course, attach/ And although a town is not bound to 
 work the whole width of the road where the travel does not 
 require it, yet it has the right to control the whole width and 
 is charged with a corresponding duty. Thus if it suffers ob- 
 jects to remain deposited on the untravelled part of the way, 
 which, by their frightful appearance, make the road unsafe, 
 the town will be responsible for resulting accidents ; ^ and the 
 same rule is held as to obstructions, like logs, planks, or 
 boards placed in the roadway, outside the travelled track, 
 whether by the municipality or by a third person.^ And if 
 a town permits a leading way to exist, within the location 
 but outside the worked track, leading to a private way, and 
 having the appearance of being a part of the highway, it is 
 its duty to see such leading way kept safe.* It is held that 
 while a municipality is bound to see that the construction of 
 a street railway does not necessarily endanger other uses of 
 the street, it does not insure passengers against defects in the 
 street-car system itself ; as where a passenger standing on 
 the side-board of a car, came in contact with a trolley pole 
 set in the gutter outside the travelled way, the location of the 
 pole not having been exactly fixed by the municipality.^ 
 
 § 178. Railings and Barriers. — A municipality is bound tO 
 erect and maintain suitable railings, or other barriers, where 
 a dangerous place exists in such close proximity to the high- 
 way as plainly to make the way unsafe for travellers exercis- 
 ing ordinary prudence and discretion.^ But it is not bound 
 
 wrought part of the highway, it was held that the municipality was not 
 answerable. Moulton v. Sanford, 51 Maine, 127, and see Perkins v. 
 Fayette, 68 Maine, 152 ; Kioe v. Montpelier, 19 Vt. 470; § 170, ante, notes 
 and cases cited. 
 
 1 See Triese v. St. Paul, 36 Minn. 526. 
 
 2 Cassedy v. Stockbridge, 21 Vt. 391 ; Morse v. Richmond, 41 Vt. 435. 
 8 Snow V. Adams, 1 Gush. 443, and see Bigelow v. Weston, 3 Pick. 
 
 267; Frost v. Portland, 11 Maine, 271; French v. Brunswick, 21 Maine, 
 29; Slivitski v. Wien, 93 Wis. 460. 
 
 * Stark V. Lancaster, 57 N. H. 88. 
 
 * Kennedy v. Lansing, 99 Mich. 518. 
 
 " Norris v. Litchfield, 35 N. H. 271 ; Davis v. Hill, 41 N. H. 329 ; 
 Murphy v. Gloucester, 105 Mass. 470 ; Hayden v. Attleborough, 7 Gray, 
 
§§ 177-178.] UABIIJTT AS TO WATS. 339 
 
 to protect travellers from straying out of the way when there 
 is not any dangerous place contiguous thereto.^ So railings 
 are required only when some steep bank or other dangerous 
 object or place exists so near the travelled road as to expose 
 travellers to injury through some of the mischances incident 
 to the ordinary use of the road, and reasonably to be antici- 
 pated from such user.* The municipality is not bound to 
 anticipate and guard against extraordinary accidents. Thus 
 where the plaintiff was injured by falling over an embank- 
 ment at the edge of a street, and it appeared that the roadway 
 was safe and in good condition, and was bounded by a curb 
 eight inches high, and by ten feet of sidewalk, and it appeared 
 that the plaintiff was dragged over the embankment by his 
 horse becoming frightened and unmanageable at a place where 
 no danger from the embankment was to be expected, it was 
 held that the failure to guard the embankment was not negli- 
 gence, and that it was not an " exposed place " within the 
 meaning of a statute which gave the municipality power to 
 compel the building and maintenance of railings at exposed 
 places.^ So the fact that ice is likely to form and become 
 slippery upon level ground contiguous to a highway will not 
 impose upon the municipality the duty of fencing the highway 
 at that point to protect travellers from the danger of slipping.* 
 When a highway containing a well-beaten track is discontin- 
 ued, it is the duty of the municipality to give effectual notice 
 
 338; Kelsey v. Glover, 15 Vt. 708; Gillespie v. Newburgh, 54 N. T. 468; 
 Baldwin v. Greenwood Turnpike Co., 40 Conn. 288; Hey v. Philadel- 
 phia, 9 Phila. 166; Kenworthy v. Ironton, 41 Wis. 647; Bassett i. St. 
 Joseph, 53 Mo. 290; Aurora v. Colshire, 55 Ind. 484; Kichols v. Bruns- 
 wick, 3 Cliff. 81. 
 
 1 Norwich v. Breed, 30 Conn. .535; Sparhawk v. Salem, 1 Allen, 30; 
 Alger V. Lowell, 3 Allen, 402; Wamer v. Holyoke, 112 Mass. 362; Puffer 
 ». Orange, 122 Mass. 389 ; Logan v. New Bedford, 157 Mass. 534. 
 
 * Commonwealth v. Wilmington, 105 Mass. 599, 601. 
 
 » Hubbell V. Tonkeis, 104 N. T. 4.34. It was held not to be, as matter 
 of law, negligence in the authorities of a small country yiUage to construct 
 a plank sidewalk eight feet wide, crossing a creek at a height above the 
 water of three or four feet, for a distance of thirty-four feet, without 
 side-raila, when but few persons usually travel over it. Sandy Lake v. 
 Forker, 18 Atl. Rep. 609 (Penn. 1889). 
 
 * Damon v. Boston, 149 Mass. 147. See §§ 18l-im, post. 
 
340 PERSONAL INJURIES. [CHAP. Vl. 
 
 of such discontinuance, and to erect barriers to prevent travel 
 over it.^ When a municipality excavates a street for munic- 
 ipal purposes, it is bound to use reasonable care to protect 
 travellers, and so to place barriers and lights at night ; but it 
 is not, ordinarily, bound to close the street in which the exca- 
 vation is being made.^ If barriers properly placed are removed 
 without the fault of the municipality, and, before sufficient 
 time elapses in which to discover their removal and to replace 
 them, a traveller is thereby injured, the municipality will not 
 be liable for such injury.* The question of the necessity of a 
 barrier is ordinarily for the jury ; * but where the risk is so 
 small that it obviously would be unreasonable to require the 
 municipality to provide a railing, it seems that the court 
 may decide the question as one of law, and direct a verdict 
 for the defendant.^ 
 
 § 179. Closing High^vay for Repairs : Iiights : Waterworks, — 
 If the corporation closes a highway, temporarily, against 
 travel, for the purpose of repairing it, it is bound to see that 
 it is in fact closed by suitable barriers ; and if a traveller at- 
 tempts to use a way imperfectly closed, and so is injured, the 
 municipality may be liable.* A municipality has no right to 
 
 1 Bills V. Kaukana, 94 Wis. 310. Wires stretched across the ends of a 
 defective bridge at the height of the breast of a horse, and signs " bridge 
 unsafe " were held to be a sufficient warning, although the plaintiff could 
 not read the English language.' Weiss v. Jones County, 86 Iowa, 625. 
 
 " O'Rourke v. Monroe, 98 Mich. 520 ; Doherty v. Waltham, 4 Gray, 
 576; Myers v. Springfield, 112 Mass. 489. See Chope v. Eureka, 78 Cal. 
 588. It is said that the duty of a municipality to place danger signals at 
 night is not relieved by the fact that the streets are lighted by electric 
 lights. Aurora v. Bockabrand, 149 111. 399. 
 
 ' Raymond d. Keseberg, 91 Wis. 191. 
 
 * Lyman v. Amherst, 107 Mass. 330; Howard ». Mendon, 117 Mass. 
 585; Lutton v. Vernon, 62 Conn. 1 ; Ross v. Ionia, 104 Mich. 320 ; Gould 
 V. Schirmer, 101 Iowa, 582; Mechesney v. Unity, 164 Penn. St. 358; 
 Wellman v. Susquehanna Depot, 167 Penn. St. 239; Trexler v. Green- 
 wich, 168 Penn. St. 214. 
 
 ' Scannal v. Cambridge, 163 Mass. 91. See Tisdale v. Bridgewater, 
 167 Mass. 248. 
 
 » White V. Boston, 122 Mass. 491, 494; Ray v. Poplar Bluff, 70 Mo 
 App. 252. 
 
§§ 178-179.] LIABIUTT AS TO WATS. 341 
 
 erect a railing within a public way for the purpose of chang- 
 ing the line of travel, and if a traveller is injured by reason 
 of such a railing, it is a question of fact whether the highway 
 was thereby made defective.^ As the laying of a railway 
 track in a street renders necessary the obstruction of the 
 street, it amounts to a nuisance unless properly guarded, and 
 the fact that the work is being done by an independent con- 
 tractor will not relieve the defendant railway company from 
 liability for an accident caused by the work being improperly 
 guarded.^ The duty to guard excavations by lights and bar- 
 riers cannot be shifted upon a contractor so as to relieve the 
 municipality from its obligations.* But the placing of such 
 lights and barriers by a contractor or a private person may be 
 a defence in behalf of the municipality in an action for inju- 
 ries.* A municipality is not bound, as matter of law, to light 
 its streets, unless it is expressly required so to do by the stat- 
 ute.^ But as a street partially obstructed, or out of repair, 
 and so dangerous, may be reasonably safe if lighted, the fact 
 that it was or was not lighted may be material upon the ques- 
 tion of negligence.® And the same rule applies when the 
 corporation omits to place lights to mark an excavation in the 
 street, whether or not this is required by an ordinance.' A 
 municipality which maintains a system of water-works is 
 liable for injuries caused by its negligence in permitting the 
 surface of a highway, in which a water-box had been placed, 
 to wear away so that the water-box projected above the surface 
 of the street and obstructed it.* And a town or city which, 
 
 1 Pratt V. Amherst, 140 Mass. 167. 
 
 « Woodman v. Metropolitan R. R., 149 Mass. 335. 
 
 " Baker v. Grand Rapids, 111 Mich. 447. 
 
 * Walker v. Ann Arbor, 111 Mich. 1. 
 
 B Canavan v. Oil City, 1S3 Penn. St. 611 ; Columbus v. Sims, 94 Ga. 
 483. See Cullom v. Justice, 161 HI. 372. 
 
 Miller «. St. Paul, 38 Minn. 134. It is error to instruct the jury 
 that, as matter of law, it is not negligence to fail to light the streets at a 
 certain crossing. Jefferson v. Chapman, 127 111. 438. 
 
 » Flater v. Fey, 70 Mich. 644 ; McAllister v. Albany, 18 Or. 426, and 
 see Barton v. McDonald, 81 Cal. 265. 
 
 » Wilkins v. Rutland, 61 Vt. 336, and see King v. Oshkosh, 75 Wis. 
 517; Hopkins v. Ogden, 5 Utah, 890. 
 
342 PERSONAL mjuRiES. [chap, vl 
 
 acting under the authority of a statute, lays and maintains 
 water-pipes under its streets, for the purpose of supplying its 
 inhabitants with water, at rates fixed by the municipality, 
 may be liable, at common law, for an injury sustained by a 
 traveller in a street which has been undermined by the escape 
 of water from a pipe negligently laid, although, under the cir- 
 cumstances, the defendant would not be liable under the 
 statute making municipal corporations liable for accidents 
 arising from defective ways.^ The rule laid down in this case 
 is in accordance with the principle, already stated, that if a 
 municipal corporation, acting under authority of law, do a 
 thing or enter into an employment, from which it derives an 
 advantage special to itself, it may be liable at common law for 
 injuries caused to an individual by its doing the thing or ex- 
 ercising the employment negligently.^ Upon this principle it 
 was held that, as to that portion of a water system maintained 
 by a municipality which was employed in supplying individuals 
 with water, for hire, the municipality would be liable for any 
 negligence in the construction or management.^ 
 
 § 180. Objects overhanging the High-way : Sign-boards : Awn- 
 ings. — It is held that an object having no necessary connec- 
 tion with the road-bed, or relation to the travel thereon, and 
 the danger from which arises merely from its casual prox- 
 imity to the highway, will not, generally, make the way de- 
 fective. Thus where a flag was suspended by a private person 
 across the highway, from a rope attached at either end to the 
 abutting buildings, and with weights at the lower corners, 
 one of which became detached and fell upon and injured a 
 traveller passing upon the highway beneath, it was held that 
 the municipality was not liable for the injury, under a statute 
 requiring it to keep its streets " in good and sufficient re- 
 pair." * But the court declined to establish the rule that a 
 
 1 Hand v. Brookline, 126 Mass. 324. 
 
 * See § 58, ante, notes and oases cited. 
 » Wilkins V. Rutland, 61 Vt. 336. 
 
 * Hewison v. New Haven, 34 Conn. 136. As to the liability of the 
 abutting owner for maintaining dangerous obstructions or objects upon 
 the highway, see §§ 1S7-189, post, notes and cases cited. 
 
§§ 179-180.] LIABILITY AS TO WATS. 343 
 
 way can be rendered defective only by something in or upon 
 the road-bed itself ; and, elsewhere, it has been held that a 
 municipality was liable for injuries caused by the fall of a 
 liberty pole which had become rotten, although it stood in 
 a part of the way where it did not obstruct travel, the decision 
 being placed upon the ground that the authorities were bound 
 to remove dangerous nuisances from the public ways.' And 
 it is held to be the duty of a municipality to supervise the ad- 
 justment and regulation of electric wires suspended over its 
 streets and owned and maintained by a private party, and for 
 any failure of duty in this respect by which a traveller suffers 
 injury the municipality may be liable.^ But it was held that 
 a town was not responsible for injuries caused to a traveller 
 by the falling of a sign suspended over the highway by the 
 owner of an abutting building.* The liability would seem to 
 be clear when the object overhanging the way is wholly or in 
 part supported by the highway. Thus it was held that a city 
 might be liable for injuries caused by the fall of an awning 
 erected by the owner of an abutting building and supported 
 by posts which stood between the sidewalk and the part of 
 the way intended for carriages, although the surface of the 
 roadway was safe and convenient* So it was held that a 
 show-board imperfectly constructed, on private property but 
 partly supported by uprights nailed to the sidewalk, was a 
 defect for the existence of which the municipality might be 
 liable.* And it would seem that the fact that the dangerous 
 object which causes the accident was permitted to exist by 
 
 * Norristown v. Moyer, 67 Penn. St. 355. 
 2 Mooney v. Luzerne, 186 Penn. St. 161. 
 
 ' Taylor v. Peckham, 8 R. I. 349. 
 
 * Hume V. Mayor of New York, 74 N. T. 264; Drake v. Lowell, 13 
 Met. 292. In Hixon v. Lowell, 18 Gray, 59, the court intimated that the 
 limit of statutory construction as against the defendant was reached in the 
 case last cited. But, later, the liability of the defendant was affirmed in a 
 case similar to that of Drake v. Lowell, except that it did not appear 
 that the awning was supported by posts or other fixtures resting in the 
 highway. Day v. Milford, 5 Allen, 98, and see Pedi'ick v. Bailey, 12 
 Gray, 161; Riley v. Simpson, Catts v. Simpson, 83 Cal. 217; § 90, ante. 
 
 ^ Langan v. Atchison, 35 Kan. 318. See Carson v. Ottumwa, 102 
 Iowa, 99. 
 
344 PERSONAL INJ0BIES. [CHAP. TI. 
 
 the municipality contrary to law, or that its existence was 
 a cause which, conjoined with another cause, illegally exist- 
 ing, produced the accident, may be evidence to charge the 
 defendant municipality with liability for such an accident 
 although the object in question was not supported upon the 
 highway. Thus where a person was injured by tlie fall of a 
 wooden awning which had been constructed in violation of a 
 city ordinance, and had been suffered to remain for several 
 years over a sidewalk in a street of the city, the awning not 
 being securely supported and snow having been permitted 
 to accumulate upon it and remain for such a length of 
 time as to warrant an inference of notice, the city was held 
 liable.i 
 
 (a) Ice and Snow. 
 
 § 181. 'When tbe Liability of the Municipality for, attaches. — 
 It is the duty of a municipal corporation to keep its streets 
 free from accumulations of snow and ice ; but it may impose 
 this duty on the abutting owners, and the corporation will 
 not be charged with negligence if, observing that the work 
 is being generally done, it awaits the action of the owners 
 for a reasonable time. Nor is it negligence on the part of 
 the corporation to fail to remove from its sidewalks ice 
 formed suddenly, if it is practically impossible to remove it, 
 nor to fail to compel the abutting owners to sprinkle the ice 
 with ashes or sand ; but the corporation has a right to await, 
 for a reasonable time, a change of temperature which •will re- 
 move the danger. But when a reasonable time has elapsed 
 after the dangerous accumulation has formed, the corpora- 
 tion must either compel the abutting owners to act or act 
 itself ; and if it permits the danger to remain thereafter, 
 having notice actual or constructive of its existence, it will 
 
 1 Bieling v. Brooklyn, 120 N. Y. 99. In this case the court said : " It 
 is quite likely that the manner of construction, its means of support, and 
 inefficiency especially to bear the weight of snow permitted to gather and 
 remain upon it, may have been ascertained by inspection; and it is so im- 
 portant for the safety of travel on the sidewalk of a public street in a city 
 that structures of that character should be adequately secured, as to call 
 upon the constituted authorities to exercise reasonable vigilance to see 
 that they axS so." 
 
§§ 180-182.] LIABILITY AS TO WATS. 345 
 
 be responsible for the injuries resulting therefrom.* When 
 the facts, or the conclusion to be drawn from them, is doubt- 
 ful, the question as to what will be a reasonable time is for 
 the jury.^ 
 
 § 182. 'When a Defect. — The mere fact without more, that 
 the plaintiff slipped on the ice, and fell and was injured, is 
 not enough to charge the municipality with responsibility for 
 the accident.^ If a highway, well and properly constructed, 
 becomes slippery from ice gathering or farming upon it, but 
 not accumulating so as to form an obstruction to travel, 
 except in so far as such slipperiness, of itself, forms an 
 obstruction, the fact that a traveller may be liable to slip and 
 fall thereon does not make such slipperiness a defect within 
 the meaning of the statutes which impose upon municipal cor- 
 porations the duty of keeping their ways safe and convenient 
 for travellers.* It is said, in New York, " the danger arising 
 from the slipperiness of ice or snow lying in the streets, is 
 one which is familiar to every one residing in our climate, 
 and which. every one is exposed to who has reason to traverse 
 the streets of cities or villages in the winter season. Acci- 
 
 1 Taylor v. Tonkers, 105 N. T. 202; Harrington v. Buffalo, 121 N. Y. 
 147; O'Connor v. New York, 9 N. Y. Sup. N. E. Rep. 492 (1890) ; and 
 see cases cited with § 182, post. 
 
 2 Keane v. Waterford, 8 N. Y. Sup. N. E. Kep. 790 (1890). 
 
 « Slavin v. New York, 56 N. Y. S. C. 604 ; Kaveney v. Troy, 108 N. Y. 
 571 ; Kinney v. Troy, 108 N. Y. 567. 
 
 * Stanton v. Springfield, 12 Allen, 566 ; Hutohins v. Boston, 12 Allen, 
 571 n. ; Johnson v. Boston, 12 Allen, 572 n. ; Nason v. Boston, 14 Allen, 
 508 ; Henkes v. Minneapolis, 42 Minn. 530 ; Gram v. Greenbush, 3 N. Y. 
 Sup. N. E. Rep. 76 (1889) ; Chicago ... McGiven, 78 111. 347, 352 ; Bro- 
 burg I'. Des Moines, 63 Iowa, 523 ; Smyth v. Bangor, 72 Maine, 249 ; 
 Bleakley v. Prescott, 12 Ont. App. 637; Ward v. Jefferson, 24 Wis. 342; 
 Cook V. Milwaukee, 24 Wis. 270 ; Salzer v. Milwaukee, 97 Wis. 471 ; 
 Chamberlain v. Oshkosh, 84 Wis. 289 ; Kannenburg v. Alpena, 96 Mich. 
 53 ; Rolf V. Greenville, 102 Mich. 544 ; Wyman v. Philadelphia, 175 
 Peun. St. 117. The like rule was applied when the injury complained of 
 was occasioned by the plaintiff's slipping upon a slab of glass set into the 
 sidewalk for the purpose of lighting the area below; it being held that 
 the city was not bound to have its sidewalks so constructed as to secure 
 immunity from danger to travellers in the street; but only to see that 
 these are kept reasonably safe. Chicago v. McGiven, 78 111. 347. 
 
346 PERSONAL INJUEIES. [CHAP. VI, 
 
 dents occurring from such causes are chargeable solely to the 
 person injured, unless it can be shown that the cause thereof 
 has been occasioned, aggravated, or negligently permitted by 
 the act of some third party charged with the duty of removing 
 it." ' But if, from any cause, the ice or snow upon the high- 
 way becomes piled into mounds or ridges, or assumes or is 
 worn into a rough or uneven surface, or into dangerous holes 
 or depressions, so that travellers passing over it are in danger 
 of falling, then such snow or ice may constitute an obstacle 
 to travel for the existence of which the municipality will be 
 responsible.^ It is generally a question of fact whether a way 
 partly obstructed by snow or ice was safe and convenient,^ 
 but, to authorize the submission of the case to the jury, there 
 must be evidence that the injury was due to some defect which 
 would not have existed if the way and ice had been perfectly 
 smooth.* 
 
 1 Per Ruger, C. J., in Harrington k. Buffalo, 121 N. Y. 147, 150. 
 
 ' Luther v. Worcester, 97 Mass. 268; Stone v. Hubbardston, 100 Mass. 
 49 ; Morse v. Boston, 109 Mass. 446 ; McAuley v. Boston, 113 Mass. 503 ; 
 Williams v. Lawrence, 113 Mass. 506 n. ; Chicago v. McGiven, 78 111. 
 347 ; Cook v. Milwaukee, 24 Wis. 270 ; Providence v. Clapp, 17 How. 
 164, and see cases cited, supra. 
 
 •* Street v. Holyoke, 105 Mass. 82 ; Gerald v. Boston, 108 Mass. 580. 
 
 * Gilbert v. Roxbury, 100 Mass. 185. Now, in Massachusetts, it is 
 provided by statute that " No city or town shall be liable for any injury 
 or damage to person or property hereafter received or suffered in or upon 
 any part of a highway, town way, causeway, or bridge, by reason or in 
 consequence of snow or ice thereon, if the place at which the injury or 
 damage was received or suffered was at the time of the accident other- 
 wise reasonably safe and convenient for travellers." St. 1896, c. 540. 
 This language is held to mean that a way shall not be deemed unsafe by 
 reason of snow or ice thereon, if it would be reasonably safe and conven- 
 ient for travellers but for the presence of snow and ice thereon. Newton v. 
 Worcester, 169 Mass. 516. Under the Michigan statute making it the duty 
 of townships to keep public highways " in reasonable repair, so that they 
 will be reasonably safe and convenient for public travel " and to levy suras 
 of money " to keep public highways ... in good repair," it is held that 
 an intention to create a liability on the part of municipalities for injuries 
 received by reason of the accumulation along the sides of the streets and 
 at crossings of snow removed from the sidewalks for foot travel, and, in 
 cases of deep snow, removed to clear a track in the streets for vehicles, 
 which snow has been changed to ice, does not appear. Hutchinson v. 
 Ypsilanti, 103 Mich. 12. The opinion is founded on the cases McKellar 
 
§§ 182-183.] LIABILITY AS TO WATS. 347 
 
 § 183. Defect from, caused by Artificial Means. — When there 
 is no other defect than slipperiuess, the rule is the same 
 although the formation of the ice be partly due to artificial 
 causes, as to the flow of water from a hose upon the side- 
 walk,^ or water flowing from a gutter,^ or where snow was 
 carried upon the sidewalk in the course of ordinary travel, 
 and there trodden down and frozen,^ or where there was an 
 overflow of water from a tub or trough by the roadside, which 
 froze upon the way,* or in the common case of ice formed 
 upon a sidewalk by the drippings from the adjoining build- 
 ings.^ But if the ice collected by artificial causes take the 
 
 ». Detroit, 57 Mich. 158, and Rolf v. Greenville, 102 Mich. 544, and the 
 cases Joslyn v. Detroit, 74 Mich. 458, and Hayes v. West Bay City, 91 
 Mich. 418, are distinguished. 
 
 1 Henkes v. Minneapolis, 42 Minn. 530. 
 
 2 Fitzgerald v. Woburn, 109 Mass. 204; Todd v. Troy, 61 N. Y. 506; 
 Gavett V. Jackson, 109 Mich. 408. See Manrosa v. Oil City, 178 Penn. 
 St. 276. 
 
 * Nason v. Boston, 14 Allen, 508. 
 
 * Stone V. Hubbardston, 100 Mass. 49. 
 
 6 Kinney v. Troy, 108 N. Y. 567; Kaveney u. Troy, 108 If. Y. 571; 
 Harrigan v. Hoosick Falls, 1 N. Y. Sup. N. E. Rep. 695 (1888) ; Keane 
 V. Waterford, 2 N. Y. S. Rep. 182 ; Tobey v. Hudson, 2 N. Y. S. Rep. 
 180; Hanson v. Warren, 14 Atl. Rep. 405 (Penn. 1888); Billings v. 
 Worcester, 102 Mass. 329. In the latter case, the question arose whether 
 the same condition of a street or sidewalk, which, if produced from 
 the operation of general causes, as by reason of atmospheric changes 
 resulting in a slippery state of the surface, would not be a defect, might 
 not be a defect if the ice was formed by some local cause such as water, 
 dripping from the eaves of a building, or flowing from a gutter; and 
 whether smooth ice, not broken into unevenness, might not under such 
 circumstances become a defect. The majority of the court held that the 
 distinction thus taken would not bear the test of scrutiny, and said: " If 
 the injury happened by reason of that which was not in itself a defect, 
 the town cannot be made liable, whatever may be the proof as to the 
 manner in which the condition of the way became such as it was. The 
 ground upon which it has been held that the mere fact that the surface 
 of a well-constructed street or sidewalk is rendered smooth and slippery 
 by moisture and frost does not constitute a defect is, that such a condition 
 is so inevitable . . . that it cannot be supposed to have been the inten- 
 tion of the legislature to cast upon the towns a duty so impossible of per- 
 formance, or a burden from which the highest degree of diligence could 
 do so little to protect them. . . . The result ... is, that the question of 
 defect must be determined by the condition of the way itself in respect 
 
348 PERSONAL INJUBIES. [CHAP. VI. 
 
 form of a defect or obstruction to travel, and the municipality, 
 after a reasonable time has elapsed, suffer it to remain in the 
 street, it will become liable as in cases where the formation 
 is due to the natural action of the elements.^ And if the de- 
 fective construction of the way at the particular point was 
 the cause of the dangerous formation, the defendant may be 
 liable even although the formation was smooth, and such as, 
 had it been due to natural causes only, would not constitute a 
 defect. Thus if water collects in a depression negligently 
 allowed to remain in a sidewalk, and there freezes, this may 
 be a defect for which the municipality will be liable.^ It was 
 held that a city was not bound to drain a lot of land under 
 the surface of the street, nor to dam it so as to prevent the 
 sidewalk from being overflowed.* 
 
 SECTION ni. 
 
 OP NOTICE TO THE DEPENDANT. 
 
 § 184. Generally : Implied : 'When unnecessary : Illiistra- 
 tions. — The statutes provide, generally, that the liability for 
 accidents caused by defects in highways shall not attach un- 
 less the defendant municipality had notice of the existence of 
 the defect complained of. Generally, the burden is upon the 
 plaintiff to show that the corporation, by its proper ofiScers, 
 knew of the existence of the defect, or ought to have known 
 of it, in season to have remedied it, and so have prevented 
 
 to that particular which is alleged to have caused the injury complained 
 of ; that the question of . . . fault or negligence, or the contrary, on the 
 part of the town, is involved only in reference to that particular defect or 
 condition complained of, and, even as to that, only to a very limited 
 degree; that snow and ice in the streets, or upon sidewalks are not de- 
 fects merely because they make it slippery." 
 
 1 Stone V. Hubbardston, 100 Mass. 49; Fitzgerald v. Woburn, 109 
 Mass. 204 ; Cook v. Milwaukee, 24 Wis. 270 ; West v. Eau Claire, 89 
 Wis. 31; Harrington v. Buffalo, 121 N. Y. 147. 
 
 * Spellman v. Chicopee, 131 Mass. 443; Ayres v. Hammondsport, 7 N. 
 T. Sup. N. E. Rep. 174 (1889). 
 
 3 Tracey v. Poughkeepsie, 46 Hun, 569. 
 
§§ 183-184.] LIABILITY AS TO WATS, 349 
 
 the injury .1 "When the statute requirement of notice is gen- 
 eral in its terms, the time or manner of giving notice not 
 being prescribed, it will be a question for the jury whether 
 the defendant is to be taken as affected with notice,^ and, in 
 such cases, proof of constructive notice is sufficient.^ This 
 may be inferred from the notoriety of the defect,* or from its 
 continuance during such a length of time as will justify the 
 inference that the proper officers of the corporation knew or 
 might have known of its existence.^ When the defect is the 
 result of something negligently done in the construction of, 
 or in or upon, the highway, by the defendant acting by its duly 
 authorized agents, it is not necessary for the plaintiff to prove 
 any notice whether actual or constructive.^ Thus where the 
 
 1 New York City v. Sheffield, 4 Wall. 189 ; Hanscom v. Boston, 141 
 Mass. 242; Stanton v. Salem, 145 Mass. 476. The statutes requiring 
 notice as a preliminary to the action are not unconstitutional. McNally 
 V. Cohoes, 53 Hun, 202. Where the statute did not require notice, it was 
 held that the plaintiff need not allege nor prove it. Chapmau v. Milton, 
 31 W. Va. 384. 
 
 ^ Troxel v. Vinton, 77 Iowa, 90 ; Harrington v. Buffalo, 50 Hun, 601 ; 
 121 N. y. 147 ; Kunz v. Troy, 104 N. Y. 344; Duncan v. Buffalo, 50 
 Hun, 600 ; Schroth v. Prescott, 68 Wis. 678 ; Fortin v. Easthampton, 145 
 Mass. 196. 
 
 « Reed v. Northfield, 13 Pick. 94; Morassy v. New York, 54 N. Y. S. 
 C. 432 ; Valparaiso v. Donovan, 44 N. W. Rep. 449 (Neb. 1890) ; Moon 
 V. Ionia, 81 Mich. 635 ; Sterling v. Merrill, 25 111. App. 596, 124 111. 522 ; 
 Chicago V. Farrell, 27 111. App. 526 ; Wheaton v. Hadley, 30 111. App. 564. 
 * Chase v. Lowell, 151 Mass. 422. But it does not follow that a mu- 
 nicipality may not be taken to be affected with notice merely because the 
 defect is such as is not likely to attract the attention of passers-by. 
 Mitchell V. Plattsburg, 33 Mo. App. 555. To the rule that if the defect 
 is open and notorious, notice is to be presumed, see also AUis v. Day, 14 
 Minn. 518; Bast o. Leonard, 15 Minn. 312 ; Cleveland v. St. Paul, 18 
 Minn. 279 ; Shartle v. Minneapolis, 17 Minn. 245; Lindholm v. St. Paul, 
 19 Minn. 245; Moore v. Minneapolis, 19 Minn. 300; Bieling v. Brooklyn, 
 120 N. Y. 99. 
 
 6 Schroth V. Prescott, 68 Wis. 678 ; Smalley v. Appleton, 75 Wis. 18 ; 
 Hall V. Fond dn Lae, 42 Wis. 274 ; Lincoln v. Smith, 45 N. W. Rep. 41 
 (Neb. 1890); Philadelphia v. Smith, 23 W. N. C. 242; Whitfield v. 
 Meridian, 66 Miss. 570 ; Griffin v. Johnson, 84 Ga. 279 ; Atchison v. Rose, 
 43 Kan. 605 ; Squires v. Chillicothe, 89 Mo. 226 ; Fortin v. Easthampton, 
 145 Mass. 196. 
 
 Brooks V. Somerville, 106 Mass. 271 ; Hinckley v. Somerset, 145 
 
350 PERSONAL INJURIES. [CHAP. VI. 
 
 statute required three days to charge a city with liability for 
 injuries caused by dangerous excavations in its streets, it was 
 held that this provision had no application where an acci- 
 dent occurred by reason of the neglect of an alderman of the 
 city to erect a barrier to guard an excavation, he seeing it and 
 knowing its dangerous character.^ So where the city left a 
 dangerous obstruction in the nature of a nuisance in its street 
 and the plaintiff was injured thereby, it was held that he 
 might recover without regard to the question whether he had 
 given the notice required by the statute in order to charge the 
 defendant in case of accidents caused by defects in streets.^ 
 The rule was applied where the injury was caused by the 
 negligent building of a sidewalk by the defendant,* and 
 where a corporation was guilty of extreme negligence in 
 constructing an apron over a ditch.* But the cases are to be 
 distinguished in which, the defendant having once guarded 
 the dangerous place by sufficient barriers, these are removed 
 without its fault ; for in such cases it must be shown, in order 
 to charge the defendant, that it had notice, express or implied, 
 of the removal.^ If a highway become suddenly defective by 
 the action of the elements, the municipality is not liable for 
 resulting injuries, unless it had notice of the fact, or sufficient 
 time in which to become informed of it by the exercise of 
 reasonable diligence, and opportunity to repair the defect.* 
 In the absence of actual notice, municipalities are liable only 
 for such defects as are apparent, or indicated by appearances, 
 or disclosed by the test of ordinary user.' A municipality is 
 bound to take notice of the decay of structures, such as wooden 
 sidewalks or pavements, which are built of perishable mate- 
 Mass. 326 ; Trapnell v. Red Oak Junction, 76 Iowa, 744 ; Denver v. Deane, 
 10 Col. 375 ; Houston v. Isaacs, 68 Tex. 116 ; Boone County v. Mutcher, 
 137 Ind. 140. 
 
 1 Cantwell u. Appleton, 71 Wis. 463. 
 
 2 Hughes V. Fond du Lac, 73 Wis. 380. 
 
 8 Peru V. French, 55 111. 317 ; Chicago v. Langlass, 66 HI. 361. 
 * Jefferson v. Chapman, 127 111. 438. 
 
 « Doherty v. Waltham, 4 Gray, 596; Peru v. French, 55 HI. 317; 
 Chicago 0. Langlass, 66 111. 361 ; § 178, ante. 
 
 ' Ward V. Jefferson, 24 Wis. 342; McGrailw. Kalamazoo, 94 Mich. 52. 
 ' Hem'bling v. Grand Rapids, 99 Mich. 292. 
 
§ 184.] LIABILITY AS TO WATS. 351 
 
 rials and exposed to hard and constant use.^ But if such 
 structures were properly constructed the municipality will 
 not be liable for injuries caused by their getting out of repair 
 unless it had actual notice of the defect, or this had existed 
 so long that the authorities, by the use of reasonable diligence, 
 ought to have discovered it.^ Where the authorities had 
 actual notice that a bridge was defective, and had caused re- 
 pairs to be made upon it, it was held that they were charge- 
 able with notice of the fact that the timber in the bridge was 
 decaying, and that it was their duty to have it thoroughly ex- 
 amined.* If the negligence charged is in the original con- 
 struction of a bridge, it is not necessary to prove notice.* 
 The lack of barriers and lights on a drawbridge in a city is 
 an obvious defect, and for a resulting injury the municipality 
 will be liable without notice.® Where a decayed tree, being 
 struck by a heavy truck, fell upon and injured the plaintiff, it 
 was held that if the tree was dangerous, but appeared safe to 
 outward observation, the defendant was not liable, and that 
 the defendant was not bound to examine a hole which had 
 existed on one side of the tree, although by so doing it would 
 have discovered the decay.^ Where an obstruction consisted 
 of dirt thrown upon a sidewalk one or two days before an 
 accident, in the presence and with the acquiescence of the 
 street superintendent, it was held that the question whether 
 there had been sufficient time for its removal was for the 
 jury.'' Notice to the municipality may be presumed from the 
 long-continued accumulation of snow or ice in a street,^ and 
 the falling of snow is, of itself, a circumstance to put the 
 
 ^ Weightman v. Washington, 1 Black, 39 ; Farrell v. Oldtown, 69 
 Maine, 72 ; Barnes v. Newton, 46 Iowa, 567 ; Noble v. Eichmoud, 31 
 Gratt. 271 ; Barrett v. Hammond, 87 Wis. 654. 
 
 2 Miller v. St. Paul, 39 Minn. 134. 
 
 ' Spaulding v. Sherman, 75 Wis. 77. See Shaw v. Sun Prairie, 74 
 Wis. 105. 
 
 * Boone County v. Mutchler, 137 Ind. 140. 
 6 Stephani v. Manitowoc, 89 Wis. 467. 
 
 • GubasoD V. New York, 14 Daly, 559. 
 1 Shook V. Cohoes, 108 N. Y. 648. 
 
 8 Noy V. Troy, 3 N. Y. Sup. N. E. Rep. 679 (1889). See §§ 181-183, 
 ante, and cases cited. 
 
852, PERSONAL INJURIES. [CHAP. VI. 
 
 municipality on its guard.' But the corporation is entitled 
 to a reasonable time within which to remove such accumula- 
 tions, and it will not be charged with constructive notice until 
 such time has elapsed.^ It has been held that failure to re- 
 move the snow from a sidewalk for forty-eight hours after it 
 had ceased to fall did not charge a city with implied notice 
 that the sidewalk was slippery and dangerous.^ It is evident 
 that the question of what is a reasonable time must generally 
 depend upon the circumstances of the particular case.* Notice 
 of a defect is notice of that state of things which constitutes 
 a defect, and the fact that the municipal authorities may think 
 that it does not constitute a defect is not material.^ But a 
 mere liability to become defective is not a defect ; and where 
 the statute required that the defect should have existed for 
 twenty-four hours in order to charge the defendant, it was 
 held error to charge the jury that although the defect must 
 have existed for twenty-four hours, it might have been secret 
 and not developed until the time of the accident.® So notice 
 of the existence of a cause outside the way which may pro- 
 duce a defect, is not a notice of a defect.'' But the liability 
 will not be removed by the fact that the same defect has be- 
 come greater during the twenty-four hours.^ It was held that 
 a stone that had lain in the highway for twenty-four hours 
 might be a defect, although its position might have been 
 changed during that time by human agency ; provided it had 
 not ceased by the change to be the same defect.* While it is 
 
 1 Foxworthy v. Hastings, 25 Neb. 133. 
 
 2 Taylor v. Tonkers, 105 N. Y. 202 ; Springer v. Philadelphia, 12 Atl. 
 Kep. 490 (Penn. 1888). 
 
 » O'Connor i;. New York, 8 N. Y. Sup. N. E. Rep. 560 (1890), and 
 see Betts v. Gloversville, 8 N. Y. Sup. N. E. Kep. 795 (1890). 
 
 * See Dittrich v. Detroit, 98 Mich. 245 ; Reed v. Detroit, 99 Mich. 204 ; 
 Germaine v. Muskegon, 105 Mich. 213. 
 
 * Hinckley v. Somerset, 145 Mass. 326. 
 
 * Monies v. Lynn, 124 Mass. 165. 
 
 ' Billings V. Worcester, 102 Mass. 329. 
 
 » Blood V. Hubbardston, 121 Mass. 233. 
 
 » Maocarty u. Brookline, 114 Mass. 527, and see Winn v. Lowell, 1 
 Allen, 177. If a city has given a license to a builder to pile his materials 
 in the street, notice of the danger will be implied, as to the city, from the 
 open and continuous neglect of the builder. Magee v. Troy, 48 Hun, 
 
§§ 184-185.] LIABIUTT A8 TO WATS. 353 
 
 not material, as affecting the question of the liability of a 
 municipality for maintaining a dangerous obstruction in its 
 street, whether such obstruction was created by private or 
 public agency,^ the ordinary rules as to notice obtain in such 
 cases,^ and if the obstruction is created by a third party, the 
 municipality must have notice in order to charge it.* 
 
 § 185. Notice to Defendant's Officers or Agents. — Where the 
 statutes provide that the defendant municipality may be liable 
 for injuries caused by defects which have existed for a cer- 
 tain length of time, as twenty-four hours, or of the existence 
 of which the corpoi'ation had, or ought to have had, actual 
 knowledge, it is generally held that notice may be shown by 
 proof that the proper officers of the defendant corporation, 
 
 383. If the danger has subsisted but a very short time, the city is not 
 liable. Warsaw v. Dunlap, 112 Ind. 576. Where the statute provided 
 that, in order to render the manicipality liable for negligence in failing to 
 keep a street in repair, such failure must have continued for ten days, at 
 least, after notice in writing, it was held that the provision did not apply 
 to a case where the mimicipality itself had caused an excavation to be dug 
 by a contractor, and discharged the contractor, and allowed the excava- 
 tion to remain as the contractor left it. Houston v. Isaacs, 68 Tex. 116, 
 and see Turner v. Newburgh, 109 N. T. 301. Knowledge of the defective 
 condition of the mdewalks, generally, for the distance of one or two 
 blocks each way from a street crossing, is held not to be a sufficient im- 
 plied notice of the special defect which causes the injury. Dundas v. 
 Lansing, 75 Mich. 499, Morse, J., dissenting. And see Shaw ». Sun 
 Prairie, 74 Wis. 105. If a municipality give notice to an abutter to repair 
 a sidewalk, this is not, as matter of law, an admission of notice of any 
 other defect than the one stated in the notice to the abutter, or of one so 
 related to it that the existence of the latter may reasonably be inferred 
 from that of the former. Shelby v. Clagett, 22 N. E. Kep. 407 (Ohio, 
 1889). The fact that a sidewalk was inspected by the proper officer a few 
 weeks before the accident does not relieve the municipality from respon- 
 sibility therefor. Stebbins v. Oneida, 5 N. T. Sup. N. E. Rep. 483 (1889). 
 
 1 Pettengill v. Tonkers, 116 N. Y. 558; King ». Oshkosh, 75 Wis. 517. 
 
 " Lewis V. Atlanta, 77 Ga. 756. 
 
 » Boulder v. Niles, 9 Col. 415; Kunz v. Troy, 104 N. T. 344; Warsaw 
 V. Dunlap, 112 Ind. 576. An abutter has a right to use, temporarily^ a 
 reasonable part of the highway for the deposit of mortar-boxes to use in 
 plastering his house ; and the mere presence of such boxes in the highway 
 is not constructive notice to the municipality that the abutter is making 
 an unlawful use of the highway. Loberg v. Amhwst, 87 Wis. 634. 
 
 23 
 
354 PERSONAL INJURIES. [CHAP. Vl. 
 
 whose duty it is to attend to municipal affairs, actually knew 
 of it, or, by proper vigilance and care, might have known of 
 it.^ Upon the question of constructive notice, it is not 
 material what municipal officer is actually charged with the 
 duty of inspecting the streets.^ Thus where the defect existed 
 in a street patrolled by a policeman, and through which one 
 of the selectmen of the defendant town had passed several 
 times after the defect appeared, it was held that there was 
 evidence of notice.^ So it was held that a police officer was, 
 under the statute, an agent of the city, and that his knowl- 
 edge of the existence of a defect was the knowledge of the 
 city.* But where the statute provided that a city should not 
 be liable unless actual notice of the existence of the defect 
 had been given to the common council or to the superinten- 
 dent of streets twenty-four hours, at least, before the occur- 
 rence of the accident, it was held that, in order to charge the 
 defendant, it was not sufficient to show that the superinten- 
 dent of streets knew, or should have known, of the defect by 
 personal observation.^ The granting of a permit to do a 
 certain thing in the highway implies notice that the thing is 
 being done, and the corporation may thereafter be liable for 
 injuries caused by the doing of the work.® Where the statute 
 
 1 Howe V. Lowell, 101 Mass. 99; Crosby v. Boston, 118 Mass. 71; 
 Jaquish v. Ithaca, 36 Wis. 108; Parish v. Eden, 62 Wis. 272; Bloor v. 
 Delafield, 69 Wis. 273; Platz v. McKean Township, 178 Penn. St. 601; 
 Palestine v. Hassell, 15 Tex. Civ. App. 519. 
 
 " Masters v. Troy, 57 N. Y. S. C. 485, and see Quinlan v. Utica, 74 
 N. Y. 603; Pomfrey v. Saratoga Springs, 104 N. Y. 459,469. A munici- 
 pality is to be taken as aif ected with notice of the existence of a defect of 
 which its officer, having the duty of seeing that the streets are in a safe 
 condition, has actual notice. Whitney v. Lowell, 151 Mass. 212. But 
 where the injuries were received by rea"son of the displacement of a cover 
 of a man-hole, it was held that the fact that workmen were seen cleaning 
 a sewer through the man-hole two days before the accident, did not prove 
 notice to the city. Ibid. See, also. Buck v. Biddeford, 82 Me. 438. 
 
 ' Fortin v. Easthampton, 145 Mass. 196. 
 
 * Carrington v. St. Louis, 89 Mo. 208. The rule may be difEerent if 
 the officer has not the power to remove the defect. See Altvater v. 
 Mayor of Baltimore, 31 Md. 462. 
 
 ' McNally v. Cohoes, 60 N. Y. S. C. 202 ; but see Dundas v. Lansing, 
 75 Mich. 499; Holmes v. Paris, 75 Maine, 559, and other cases cited infra. 
 
 • District of Columbia v. Woodbury, 136 U. S. 450. A municipality 
 
§§ 185-186.] LIABILITY AS TO WATS. 355 
 
 provided an action for injuries received by reason of a defect 
 which has existed for twenty-four hours " if " the defendant 
 had reasonable notice of it,^ it was held that if the defect had 
 not existed for twenty-four hours the action could not be 
 maintained, although the defendant had notice.^ The statutes 
 requiring specific notice are not unconstitutional.^ Where an 
 oflBcer of the defendant municipality, to whom an effectual 
 notice of the existence of a defect may be given, himself 
 creates the defect; as by placing an object, dangerous to 
 travellers, within the travelled limits of the way ; the status 
 tory notice is unnecessary, since notice of a fact to a person 
 who already knows the fact cannot be useful, and the munici- 
 pality will be estopped from claiming the statutory notice, as 
 for twenty-four hours.* 
 
 § 186. Notice in ■Writing. — In many States, it is provided 
 by statute that, in order to recover, the person injured shall 
 
 is liable for a defect caused by the excavations made by a contractor when 
 the street has been opened to the public, and the defect has existed so 
 long that the authorities, by the exercise of reasonable care, might have 
 known of its existence. Turner v. Newburgh, 109 N. Y. 301, and see 
 Houston V. Isaacs, 68 Tex. 116, as cited § 184, ante. 
 
 i Rev. Sts. Mass. c. 25, §§ 22. 
 
 ' Brady v. Lowell, 3 Cush. 121. The statute, in Massachusetts, now 
 provides that the defendant may be liable if the defect has existed for 
 twenty-four hours, " or if " the defendant has notice of it. See Pub. Sts. 
 Mass. c. 44, § 22. 
 
 s McNally v. Cohoes, 60 N. T. S. C. 202. 
 
 * Holmes v. Paris, 75 Maine, 559. In this case, the action was brought 
 under the statute of Maine, 1877, c. 206, which provides that, in order to 
 charge the town with liability for an accident caused by a defect in a 
 highway, certain ofBcers of the town shall have twenty-four hours actual 
 notice of the existence of the defect. Peters, C. J., said: " We incline 
 to the opinion that the statute does not apply to a case such as this. In 
 its literal terms it does; in its purpose and intent it does not. This par- 
 ticular provision of the statute was intended for another class of cases. 
 Its purpose was to allow a town a reasonable opportunity to remove a de- 
 fect after receiving information of its existence. . . . When the reason of 
 the law ceases, the law ceases." See also Buck v. Biddeford, 82 Maine, 
 433; Dillon, 2 Mun. Corporations, § 1027, notes and cases cited; expres- 
 sions in Brooks v. Somerville, 106 Mass. 271, and Monies v. Lynn, 117 
 Mass. 273; Dundas ». Lansing, 75 Mich. 499; McNally v. Cohoes, 60 N. 
 Y. S. C. 202, as cited supra. 
 
356 PERSONAL INJPBIES, [CHAP. VI. 
 
 within a specified time give the defendant corporation notice 
 in writing of the time, place, and cause of the injury for 
 which damages are claimed. The construction of each 
 statute will depend upon its terms, but it may be said gener- 
 ally that such statutes are not to be construed with technical 
 strictness, and that slight and immaterial errors are not to 
 defeat .the plaintiff's right to a recovery. It will be sufficient 
 if the notice gives to the officers of the municipality infor- 
 mation, with substantial certainty as to the time and place 
 of the injury, and as to the character and nature of the defect 
 which caused it, so as to be of aid to them in investigating 
 the question of liability.^ If there is no intention to mislead, 
 and the defendant is not in fact misled by the form of notice, 
 this will usually be sufficient, and whether the notice was 
 misleading or not is generally a question for the jury ; ^ but 
 where the facts are undisputed, the question of the sufficiency 
 of the notice is for the court.* Where a statute was passed pro- 
 viding that actions for personal injuries by reason of defects 
 in highways should not be maintained unless certain notices 
 were giTen to the authorities within six months after the 
 occurrence of the accident, it was held that the statute had 
 no application to actions begun within six months after the 
 passage of the act by the usual form of summons and 
 complaint.* 
 
 1 Harder v. Minneapolis, 40 Minn. 446 ; Nichols v. Minneapolis, 30 
 Minn. 545; La Crosse ». Melrose, 22 Wis. 459; Spellman v. Chidopee, 
 131 Mass. 443 ; Canterbury v. Boston, 141 Mass. 215 ; Fortin v. Easthamp- 
 •ton, 142 Mass. 486 ; Masters «. Troy, 57 N. Y. S. C. 485. Thus, in the latter 
 case, the written notice stated that the plaintifE had been injured by fall- 
 ing on the sidewalk " near " the corner of certain streets, and the proof 
 showed that the accident occurred at a point sixty-five feet distant from 
 said corner. It was held that this was not a material discrepancy. 
 
 2 Liffin V. Beverly, 145 Mass. 549 ; Young v. Douglas, 157 Mass. 383 ; 
 VenoD. Waltham, 158 Mass. 279; Conners t>. Lowell, 158 Mass. 336- Hig- 
 gins V. N. Andover, 168 Mass. 251. 
 
 » Owen V. Fort Dodge, 98 Iowa, 281. 
 * Meyer v. New York, 14 Daly, 395. 
 
 Note. — As to Forms of Written Notice. A notice of an injury is 
 sufficient although it misnames a street, if it directs the proper authorities, 
 unmistakably, to the exact place of the accident. Hein v. Pairchild, 87 
 
§ 186.] LIABILITY AS TO WATS. 357 
 
 Wis. 258; Fuller e. Hyde Park, 162 Mass. 51. But a notice that the 
 walk " from the school-house to the village " which included the walk on 
 which the accident occurred, was held insuflGicient. Strudgeon v. Sand 
 Beach, 107 Mich. 496. The simple allegation that a way or sidewalk is 
 " defective " is insufficient, Van Loan v. Lake Mills, 88 Wis. 430 ; Gard- 
 ner V. Weymouth, 155 Mass. 595 ; Madden v. Springfield, 131 Mass. 441 ; 
 but where the allegation was that the sidewalk was " unsound, defective, 
 and dangerous," this was held to be sufficient, the walk being, in fact, 
 rotten. Van Frachen v. Fort Howard, 88 Wis. 570. A notice under the 
 Pub. Sts. Mass. c. 52, sec. 17, stating that a person has been injured by 
 a defect in a highway, the defect and cause of the injury being " large 
 stones extending about six feet into the travelled part of said way, . . . 
 pUed within the travelled way in such grotesque and unusual shape that 
 they constituted a nuisance by their liability to frighten horses " was held 
 insufficient to support an action for personal injuries caused by a collision 
 with the pile of stones, in the absence of evidence, as required by the 
 statute in cases of defective notice, that there was no intention to mis- 
 lead, and that the party entitled to notice was not in fact misled thereby. 
 Bowes V. Boston, 155 Mass. 344. But a notice to a town which averred 
 that the plaintiff " was thrown from her carriage, caused by a defect in 
 the road " was held to be sufficient under St. 1888, c. 114, there being no 
 intention to mislead, and the town not being misled thereby. Carberry 
 V. Sharon, 166 Mass. 32. It is not necessary that the notice should allege 
 in express terms that it is signed in behalf of the plaintiff, if that fact is 
 clearly to be gathered from the tenor of the notice. Ibid. Where the stat- 
 ute provided that in case the injured person was unable by reason of men- 
 tal or physical incapacity to give the notice within the prescribed time, he 
 might give such notice within ten days after the incapacity was removed, 
 it was held that he could not avail himself of the ten days if his physical 
 and mental capacity would have enabled him, within the prescribed time, 
 to procure another to give the notice in his behalf, even although he could 
 not give it personally. Mitchell v. Worcester, 129 Mass. 525 ; McNulty 
 V. Cambridge, 130 Mass. 275; May v. Boston, 150 Mass. 517; Saunders v. 
 Boston, 167 Mass. 595, and see Barclay v. Boston, 167 Mass. 596. Under 
 the Connecticut statute (Gen Sts. § 2673), providing that no action for a 
 highway injury shall be maintained unless written notice be given " of the 
 time and place of its occurrence," where an accident occurred on May 2, 
 but the notice, which was otherwise correct, stated that it occurred on 
 May 5, this was held to be a fatal defect, although the defendant was not 
 misled thereby. Gardner v. New London, 63 Conn. 267. 
 
358 PERSONAL INJURIES. [CHAP, TI. 
 
 SECTION IV. 
 
 LIABILITY OP ABUTTING OWNERS. 
 
 § 187. General Liability: As to 'Ways by Dedication. — The 
 owner or occupant of premises abutting upon the highway 
 who creates, or permits to exist, within the Umits of the high- 
 way, a dangerous obstruction to travel, or who maintains 
 upon his own premises, unnecessarily, something manifestly 
 dangerous to travellers on the way, is liable for injuries 
 thereby caused to travellers.^ This rule" has been held as to 
 one who allowed a private passageway opening into his base- 
 ment within the limits of the way to become dangerous ; ^ and 
 so where the abutter maintained a dangerous coal-hole in the 
 sidewalk in front of his premises,^ or a vault in the sidewalk 
 with a defective cover,* or an area way insufficiently guarded,^ 
 or basement steps in a dangerous condition.^ So where the 
 abutter negligently permitted the ruinous wall of his building 
 adjoining the highway to stand after the rest of the building 
 had been destroyed by fire, he was held responsible for in- 
 juries caused to travellers by its falling into the street.^ If an 
 abutter lays out and paves a sidewalk on his own land adjoin- 
 ing the public way and allows it to remain apparently a part 
 of the way, he extends an implied invitation to the public to 
 use it as such, and is bound to keep it safe for travel.* But 
 
 1 Baltimore & Ohio K. E. v. Rose, 65 Md. 585; Carlin v. DriscoU, 50 
 N. J. L. 28. 
 
 2 Laiidrue v. Lund, 38 Minn. 538. 
 
 * Jennings v. Van Schaick, 108 N. Y. 580. So maintaining an open 
 hatchway in the sidewalk is negligence. Engel v. Smith, 82 Mich. 1; 
 Buesching v. St. Louis Gas Light Co., 73 Mo. 219. 
 
 * Morris V. Woodbum, 57 Ohio St. 330. 
 
 * Hotel Association ». Walters, 23 Neb. 280. 
 
 s Wasson v. Pettit, 49 Hun, 166. Building a toboggan slide across a 
 principal street in a populous city is in itself negligence. Haden v. 
 Clarke, 10 N. Y. Sup. N. E. Rep. 291 (1890). 
 
 ' Church of the Ascension v. Buokhart, 3 Hill, 193 ; Crogan v. Pope 
 Iron & Metal Co., 87 Mo. 321. 
 
 8 Holmes w. Drew, 151 Mass. 578. It was held, where one built a 
 walk leading from the street to his opera-house, and beyond that to 
 
§ 187.] LIABILITY AS TO WATS. 359 
 
 the abutter has a right to protect his property by reasonable 
 means, as by walls and fences, and will not be liable if, by 
 reason of the existence of these, a traveller is accidentally 
 injured.^ Where the statutes provide for notice to the 
 municipality in order to charge it with responsibility for 
 highway accidents, and such an accident occurs by the negli- 
 gence of an abutting owner, so that both the owner and the 
 municipality are liable therefor, the private owner cannot 
 claim the benefit of such notice,^ and, the liability of the 
 abutter being ordinarily a common-law liability existing inde- 
 pendent of the statute, he is to be taken as affected with con- 
 structive notice of the condition of things which causes the 
 accident.^ The ordinary rule of liability is applied when the 
 negligence complained of is that of the abutter's servants, 
 
 another street, and permitted the public to use it, that he was bound to 
 keep it in a reasonably safe condition for travel ; and that he was negli- 
 gent in leaving an open area in it guarded only by a railing nineteen 
 inches high. Brezee v. Powers, 80 Mich. 172. Where a person was 
 injured by slipping on the ice on a private sidewalk in front of a business 
 block, it was held that the owner of the block was not liable for failure 
 to maintain a railing to keep people upon the public highway running in 
 the same general direction. Knowlton v. Pittsfield, 62 N. H. 535. The 
 owner of a lot bounded by a city street, which street has been out down 
 by the city thirty-eight feet below the surface of the lot, is not bound to 
 guard the edge of his lot to prevent persons from falling therefrom into 
 the street. Woods ». Lloyd, 16 Atl. Rep. 43 (Penn. 1888). 
 
 1 Bennett v. Kelly, 132 Penn. St. 218. An owner of real estate who 
 keeps the same in a reasonably safe condition, is not liable to a passer-by 
 on the street who is injured by the falling of a fence during a storm so 
 severe as to unroof houses and do other like damage. Norling v. Allee, 
 10 N. T. Sup. N. E. Rep. 97 (1890). 
 
 2 Fisher v. Gushing, 134 Mass. 374 ; Holmes v. Drew, 151 Mass. 578 ; 
 Stevenson v. Joy, 152 Mass. 45. 
 
 » So to make the defendants liable for an injury received by stepping 
 into a coal-hole in a sidewalk in front of the defendant's premises and 
 used by him, it is not necessary that the defendant should have had actual 
 notice of the existence of the defect, or that this should have been notori- 
 ous. Dickson v. Hollister, 123 Penn. St. 421. Nor is it necessary that 
 the abutter should know that his fence is in a dangerous condition in 
 order to render him liable. Hussey v. Ryan, 64 Md. 426. The owner of 
 a building may be responsible for the safety of an awning which extends 
 along the front of the building for the convenience of the tenants of the 
 owner. Milford v. Holbrook, 9 Allen, 17. 
 
360 PERSONAL INJUEIES. [CHAP. VI. 
 
 agents, or employees.^ It has been held that any continuous 
 obstruction which renders a highway, or any part of it, less 
 commodious, is a nuisance ; ^ but the rule is perhaps stated 
 too broadly. But the ruined wall of a house which had been 
 burned standing close to the sidewalk in a city, was held to 
 be a public nuisance for the existence of which the city was 
 liable, the wall being dangerous.^ A street railway company 
 is responsible for injuries caused by removing snow and so 
 piling it in the street as to constitute a dangerous obstruction 
 to travel.* It is held that, in the absence of any statute regu- 
 lation to the contrary, a tree planted by a private person on 
 the sidewalk of a street in front of his premises belongs to, 
 and is under the control of, the owner and occupant of such 
 abutting property, who is bound to use reasonable care to 
 prevent its becoming dangerous to passers-by ; and, further, 
 that if the owner's title extends to the middle of the street he 
 is affected with notice that he is the owner of such tree and 
 liable for injuries caused by its becoming dangerous.^ It 
 seems that the general rule of liability is relaxed in favor of 
 persons creating public ways by dedication, as to defects 
 existing before the dedication. Thus it was held that if a 
 highway is dedicated to the public with a dangerous obstruc- 
 tion thereon, such as would have been a nuisance if placed 
 upon an ancient way, as a flight of steps, or a projecting flap, 
 no action can be maintained for an injury caused thereby, as 
 against the person so dedicating the way. So an action will 
 
 ^ See §§ 33 et seq., ante. The defendant was erecting a house upon his 
 wife's land for her, he having entire control of the work. One of his 
 teamsters, without the defendant's consent, but with his subsequent 
 acquiescence, took up the sidewalk in front of the lot for the purpose of 
 more conveniently driving in, and, ruts becoming worn in the ground, the 
 plaintiff fell into them and was injured. It was held that the defendant 
 was guilty of an act of misfeasance for which he was liable to the plain- 
 tiff, and not merely for non-feasance. Ellis v. McNaughtou, 76 Mich. 
 237, but see Ster v. Tuety, 45 Hun, 49. 
 
 '' See Iveson v. Moore, 1 Ld. Raymond, 486 ; Davis v. Mayor of New 
 York, 14 N. Y. 506, opinion by Denio, J. 
 
 ' Parker v. Macon, 39 6a. 725 ; and see Hardy t. Keeue, 52 K. H. 
 370; Savannah v. Waldner, 49 6a. 324. 
 
 * McDonald v. Toledo, &c. Railway, 43 U. S. App. 79. 
 
 6 WeUer v. McCormiok, 19 Atl. Rep. 1101 (N, J. 1890). 
 
§§ 187-188.] LIABILITY AS TO WATS. 361 
 
 not lie against the owner of a house having a covered area 
 adjoining a public footway, which area was in existence before 
 and at the time of the dedication, for an injury caused by the 
 giving way of the covering of the area, in consequence of 
 the wear and tear of public use.^ By a broad application of 
 the same principle, it has been held that, in the absence of a 
 statute imposing upon a landowner the duty of constructing 
 and maintaining a sidewalk in front of his premises, he is 
 under no legal obligation to maintain such a sidewalk, and, 
 further, that he will not be liable in damages for personal 
 injuries sustained by a foot-passenger on account of the 
 narrowness of such a walk laid out by him, or of its defective 
 condition ; ^ but it is apprehended that an abutting owner so 
 maintaining a walk wUl clearly be liable for hidden defects 
 or dangers therein, since he must be taken to hold out an 
 invitation to the public to use the walk, and so to be liable 
 in the same manner as if the walk were laid out upon his 
 own land.^ It is held that a city charter making it the duty 
 of the city to keep a sidewalk in repair at the expense of the 
 abutter, in case the latter fails to do so, does not make the 
 abutter primarily liable for injuries caused by a failure to 
 keep the sidewalk in repair.* 
 
 § 188. Liability for Acts of Third Persons. — It has already 
 been stated tliat the owner or occupant of property who 
 maintains, or permits to exist upon his property, a public or 
 common nuisance * will be responsible for injuries resulting 
 therefrom to third parties, whether such nuisance be the 
 result of hia own act or of that of his servant or agent, or 
 of an independent contractor employed by the owner.^ So, it 
 
 » Robbins v. Jones, 15 C. B. (n. s.) 221. 
 
 * Fletcher v. Scotten, 74 Mich. 212. The defect complained of in this 
 case consisted in the slippery condition of the walk from the presence 
 thereon of snow and ice. See Cooper v. "Waterloo, 88 Wis. 433. 
 
 * See §§ 66, 67, 70, ante, notes and cases cited, and also Holmes v. 
 Drew, 151 Mass. 578; Brezee v. Powers, 80 Mich. 172; Enowlton v. 
 Kttsfield, 62 N. H. 535. 
 
 « Fife 17. Oshkosh, 89 Wis. 540 ; Sommers v. Marshfield, 90 Wis. 59. 
 ^ See §§ 187, ante, 189, post, jiotes and cases cited. 
 ^ See § 39, ante, and cases cited. 
 
362 PERSONAL INJURIES. [CHAP, 71. 
 
 Jbeing the duty of an abutter upon a public highway to see 
 that travellers in the way do not suffer injury from the de- 
 fective or dangerous condition of his premises, he will be 
 responsible for such injuries although they were the result 
 of the unauthorized or wrongful act of a third person, if he 
 knows or ought to have known that the dangerous condition 
 existed. Thus if a building is rendered unsafe by the acts 
 of trespassers, which the owner might have prevented, and 
 a traveller in the adjoining way thereby suffers injury, the 
 owner is answerable ; ^ as where a telegraph company, with- 
 out the permission of the owner of a building, attached its 
 wires to the chimney of a building abutting on a street, and 
 the chimney was thereby dragged down, and fell upon and in- 
 jured a traveller in the street, the owner was held to be liable ; 
 he being charged with constructive notice of the act of the 
 telegraph company.^ And, generally, it is the duty of the abut- 
 ter to guard against dangers to which travellers in the street 
 may be exposed from anything likely to fall from the roof of a 
 house to the sidewalk, whether the unsafe condition be caused 
 by the act of the abutter or of another.^ But if the act of the 
 third person which causes the accident was done without the 
 knowledge or consent of the owner of the building, and he is 
 not affected with actual or constructive notice of the danger- 
 ous condition, nor chargeable with any antecedent negligence, 
 he is not responsible. Thus where a traveller in the street 
 was injured by the falling upon him of the stone coping of a 
 chimney, and it appeared that the chimney was well and 
 
 ^ Tacker v. Illinois Central R. R. , 42 La. Ann. 114. It is said in this 
 case that when a building falls, the mere fact of its falling is prima facie 
 evidence of negligence in the owner, and gives rise to the maxim res ipsa 
 loquitur. This doctrine is said to be common alike to the civil and the 
 common law. See Vincett v. Cook, 11 N. T. S. C. 318; Mullen v. St. 
 John, 57 N. Y. 567; Marcadd, Vol. v., p. 273; Laurent, Vol. xx., p. 695, 
 n., 642; § 111 a, ante, and notes. 
 
 ^ Gray v. Boston Gas Light Co., 114 Mass. 149. 
 
 ' Coupland v. Hardingham, 3 Camp. 398. See Welfare v. London & 
 Brighton Railway, 4 Q. B. 693 ; Kearney v. London, Brighton, &c. Railway, 
 6 Q. B. 759 ; Hadley v. Taylor, 1 C. P. 53. One who keeps a lamp attached 
 to his premises and suspended over the highway is bound to see that it 
 is kept in a safe condition, although the duty of attending to it is com- 
 mitted to an independent contractor. Tarry v. Ashtou, 1 Q. B. D. 314. 
 
§§ 188-189.] LIABIUTT AS TO WATS. 363 
 
 properly constructed, and that the fall of the coping was 
 caused by the act of a third person while using it improperly 
 and without the knowledge or authority of the owner of the 
 building, it was held that the owner was not answerable for 
 the injury.^ The general rule is applied although the con- 
 tributing cause which joins with the negligence of the owner 
 to produce the injurious result be casual or not to be expected. 
 Thus the owner of land which adjoins a public street in a ciiy 
 who suffers a building to remain thereon in an unsafe or 
 dilapidated condition, is liable to one who while passing along 
 the street is injured by the falling of the wall of such build- 
 ing, although the fall of the wall may have been caused by a 
 storm of unusual violence.^ And the owner is bound to keep 
 the premises safe against the effect of ordinary winds and 
 storms.* 
 
 § 189. As to Excavations. — The rule is definitely estab- 
 lished in England, and is supported by the great weight of 
 authority in the United States, that if one dig a pit or exca- 
 vation in his land so near the public highway as to endanger 
 travellers passing over it, he is responsible for injuries thereby 
 caused, as for a public nuisance. In such a case, Maule, J., 
 s£ud : " It appears to us after much consideration, that the de- 
 fendant, in having made the excavation, was guilty of a public 
 nuisance, even though the danger consisted in the risk of acci- 
 dentally deviating from the road ; for the danger thus created 
 may reasonably deter prudent persons from using the way, 
 and thus the full enjoyment of it by the public, is, in effect, as 
 much impeded as in the case of an ordinary nuisance to a 
 highway."* But, in order to constitute a public nuisance, 
 
 1 Scollin V. Dolan, 4 Daly, 163. 
 
 « Vincett v. Cook, 11 N. T. S. C. 318. 
 
 * See Benson v. Soarez, 43 Barb. 408. 
 
 « Barnes v. Ward, 9 C. B. 392 (1850); and see Hadley v. Taylor, L. R. 
 1 C. P. 53; Fisher v. Prowse, 2 B. & S. 770 ; Beck v. Carter, 68 N. T. 
 283; Bond v. Smith, 44 Hun, 219 ; Murray v. McShane, 52 Md. 217; Stat© 
 I/. Society, &c., 42 N. J. L. 504; Homan v. Stanley, 66 Penn. St. 464; 
 Stratton o. Staples, 59 Maine, 94 ; Norwich v. Breed, 30 Conn. 535 j 
 Hanghey v. Hart, 62 Iowa, 96 ; Young v. Harvey, 16 Ind. 314 ; Hutson o. 
 King, 95 Ga. 272 ; Lepnick v. Gaddis, 72 Miss. 200 ; Hayes v. Michigan 
 
364 PERSONAL INJURIES. [CHAP. VI. 
 
 the excavation must adjoin the highway, otherwise whoever 
 uses the land between the highway and the excavation does so 
 at his own peril, either as being a trespasser, or, if the user 
 be by permission, but without inducement, as a licensee.^ 
 And the owner of land is not bound to fence in an excavation 
 therein, unless this be made so near the way as to constitute 
 a nuisance." It has been held that, when the owner makes 
 an excavation on his land at such a distance from the way 
 that a person falling into it must necessarily be a trespasser 
 upon the land before reaching it, the owner is not responsible 
 for the injury thus sustained : ^ but it is apprehended that the 
 real question in every case is whether the excavation is so 
 near the way as to constitute a danger to the public and so 
 become a nuisance, and that if it be a nuisance, it is im- 
 material, as to the cause of action, whether the plaintiff be 
 technically a trespasser or not. The question whether an 
 excavation adjoining a highway is dangerous may, when the 
 
 Central R. K., Ill U. S. 228. In Massachusetts, where the defendant 
 made an excavation in his own land within a foot or two of the way and 
 placed no guards to prevent travellers from falling into it, and one pass- 
 ing in the night fell into it and was injured, it was held that he could not 
 recover, since the defendant owed him no duty and was not to be charged 
 with negligende as to him. Howland v. Vincent, 10 Met. 371, and see 
 Mclntire v. Roberts, 149 Mass. 450, where it is said that it is not decided 
 in Massachusetts, that at common law, abutters are liable for injuries re- 
 ceived in consequence of excavations made in their land outside the limits 
 of the highway ; the courts in that State not recognizing the ground on 
 which the cases in England, and other States rest, that such an excava- 
 tion may constitute a public nuisance. In the same case it was held not 
 negligence to maintain an opening to an elevator shaft facing on a public 
 street, but separated from it by a lintel three inches high and eighteen 
 inches wide. 
 
 1 Hardcastle v. South Yorkshire Railway, 4 H. & N. 67; Binks v. South 
 Yorkshire Railway, 32 L. J. R. (Q. B.) 26; Murphy v. Brooklyn, 118 
 N. Y. 575. 
 
 2 Hounsell v. Smyth, 7 C. B. (x. s.) 731 ; Hardcastle v. South York- 
 shire Railway, 4 H. & N. 67; Blundell v. Catterall, 5 B. & Aid. 315; 
 Jordin v. Crump, 8 M. & W. 782; Blithe v. Topham, Cro. Jao. 168; Beck 
 V. Carter, 68 N. Y. 283. See Wells v. Howell, 19 J. R. 385 ; Stafford v. 
 Ingersoll, 3 Hill, 38. So as to obstructions, as logs, &o. , placed upon the 
 land. Deane v. Clayton, 7 Taunt. 522. 
 
 ' Grumlich v. Wurst, 86 Penn. St. 74, and see Eohn v. Lovett, 44 Ga. 251. 
 
§§ 189-190.] LIABILITY AS TO WATS. 365 
 
 facts are clear and undisputed, be one of law ; as where there 
 is nothing in the evidence to warrant the conclusion that the 
 excavation constituted a nuisance ; ^ but it is apprehended that 
 ordinarily it is a question of fact for the jury to determine.^ 
 
 SECTION V. 
 
 EESPECTIVB DUTIES AND LIABILITIES OF MUNICIPALITY AND 
 THIRD PARTIES. 
 
 § 190. General Rule. — It being the duty of the municipality 
 to see that its ways are kept safe and convenient, its respon- 
 sibility in this respect is not removed by the fact that a third 
 person is legally bound to keep the way in repair, and if a 
 traveller is injured by a defect in such a way he may gener- 
 ally look in the first instance to the municipality for dam- 
 ages.^ Thus the lessee of a part of a building, having no 
 duty as to the proper condition of the sidewalk in front of it, 
 may recover damages, as against the municipality, for injuries 
 caused by a defect in the sidewalk which the owner of the 
 building was bound to keep in repair,* and a water company 
 
 1 See Bond v. Smith, 113 N. Y. 378. 
 
 2 See Crogan v. Schiele, 53 Conn. 186. 
 
 8 Hale V. Railway Co., 6 H. & N. 497; Ellis v. Gas Cons. Co., 3 El. & 
 BI. 767 ; Newton v. Ellis, 5 El. & Bl. 115 ; Buffalo v. HoUoway, 7 N. Y. 
 493 ; Storrs v. Utioa, 17 N. Y. 104 ; Brooklyn v. Brooklyn City R. R., 47 
 N. Y. 475; Rochester v. Montgomery, 72 N. Y. 65 ; Lowell ». Boston & 
 liowell R. R., 23 Pick. 24; Wobum v. Henshaw, 101 Mass. 193; Boston 
 17. Worthington, 10 Gray, 496 ; McDonald v. Toledo, &c. Railway, 43 U. 
 S. App. 79. The fact that the municipality has given the abutter a 
 license to obstruct the way, as by piling building material in the street, 
 does not relieve it from its duty to keep the street in a safe condition.' 
 Brusso V. Buffalo, 90 N. Y. 679; Grant ». Stillwater, 35 Minn. 242. 
 Where the liability for injuries is imposed upon the city by statute, it 
 continues as to a street being paved which remains open to travel, 
 although the work is being done by an independent contractor as ex- 
 pressly required by statute, the city having power to exact indemnity for 
 the contractor's negligence, and to reserve supervision of the work 
 Southwell V. Detroit, 74 Mich. 438. 
 
 * Burt 0. Boston, 122 Mass. 223. 
 
PERSONAL INJUEIES. [CHAP, TI. 
 
 that discharges water on the street so as to render it unsafe, 
 by reason of ice forming, is jointly liable with the municipality,^ 
 So where an independent contractor, in performing his con- 
 tract with the municipality, makes holes or excavations in 
 the street, and by reason of his negligence a traveller is in- 
 jured, the municipality may be made responsible in the first 
 instance.^ Where railroad corporations, in exercising the 
 power conferred upon them by statute to cut through and 
 alter highways, create a dangerous defect or obstruction in 
 the way, the town in which the way is situated is primarily 
 liable for injuries caused to a traveller thereby.^ The ques- 
 tion in all cases is whether the municipality has the right and 
 power to interfere so as to prevent what is being negligently 
 done, and if it has not such right and power, then it is not 
 responsible.* The duty to keep the highway clear of obstruc- 
 tions to travel does not include the power to enter upon the 
 land of abutting owners to erect barriers or remove, or pre- 
 vent the use of, structures or buildings.^ But the general 
 
 1 Waltemeyer v. Kansas City, 71 Mo. App. 354. 
 
 * Bobbins v. Chicago, 4 Wall. 657, and see Chicago v. Bobbins, 2 
 Black, 418; Omaha v. Jensen, 35 Neb. 68. 
 
 8 Willard v.^ Newbury, 22 Vt. 458 ; State v. Gorham, 87 Maine, 451 ; 
 Veazie v. Penobscot E. B., 49 Maine, 123 ; Currier v. Lowell, 16 Pick. 
 170. So a town or city may be liable in the first instance for a defect in 
 its highway caused by the negligence of a street railway corporation occu- 
 pying a portion of the way. Prentiss v. Boston, 112 Mass. 43 ; Hawks v. 
 Northampton, 116 Mass. 420 ; Bailey v. Boston, 116 Mass. 423, n. In 
 Indiana, it is held that the fact that a city, by an ordinance granting the 
 use of its streets to a street railway company, required the company 
 to lay and maintain its track in a specified manner, does not render the 
 city liable for the negligence of the company, although the company may 
 not have conformed to the ordinance. Michigan City v. Boeckling, 122 
 Ind. 39. 
 
 * Jones ». Waltham, 4 Cush. 299. In this case, it was held that a 
 town was not liable for an injury received by a traveller by falling into a 
 cattle-guard at a crossing ; the town having provided barriers to prevent 
 accidents, as far as this could be done without interfering with the pass- 
 ing of trains over the railroad. See also Sawyer v. Northfield, 7 Cush. 
 490; Vinal v. Dorchester, 7 Gray, 421; Scanlan v. Boston, 140 Mass. 84. 
 
 * Goodin v. Des Moines, 55 Iowa, 67 ; Haines v. Barclay Township, 
 181 Penn. St. 521. The statute in Wisconsin, c. 471, Laws of 1889, pro- 
 vides that a city may be sued in the same action with the person primarily 
 
§§ 190-191.] LIABILITY AS TO WATS. 367 
 
 liability will not be limited by mere implication.^ On the 
 other hand, an abutter is not liable for a defect in a way, 
 unless the duty to keep it in repair is imposed on him by statute 
 or contract.^ Ordinarily, when the accident is due to the 
 active negligence of the third party, the injured person may 
 have his option to sue, in the first instance, either the third 
 party or the municipality.^ So one who has contracted to 
 build a sewer in a city, and to save the city harmless from 
 suits arising from negligence in guarding the work, may be 
 liable to a person injured in consequence of such neglect.* 
 Where the statute provides that abutters, or persons placing 
 obstructions in the Mghway, shall be, in the first instance, 
 liable for damages for injuries resulting from such sidewalks 
 or obstructions ; in order to a recovery against the munici- 
 pality, the plaintiff must show that he has exhausted all 
 remedies against the abutter or person causing obstructions.^ 
 Where it was provided by a municipal charter * that, whenever 
 the city should be made liable to an action for damages by rea- 
 son of the negligence of any person or corporation, such person 
 or corporation should also be liable to an action on the same 
 account by the injured party ; it was held that the latter, on 
 bringing action for such injury against the city, should join such 
 other person or corporation as defendant, and that no judg- 
 ment should be rendered against the city, unless judgment 
 was rendered against such other person or corporation.^ 
 
 § 191. Remedy over in Favor of the Municipality. — When a 
 municipal corporation is compelled to pay a judgment ob- 
 tained against it in an action for injuries received by reason 
 
 liable for an injury resulting from a defective street. See Raymond v. 
 Keseberg, 91 Wis. 191. 
 
 1 Davis V. Leominster, 1 Allen, 182 ; Pollard v. Woburn, 104 Mass. 84. 
 
 « Fulton V. Tucker, 3 Hun, 529. 
 
 8 See Barton v. McDonald, 81 Cal. 265. 
 
 * Charlock v. Freel, 50 Hun, 395. 
 
 * Raymond v. Sheboygan, 70 Wis. 318 ; Hiner v. Fond du Lao, 71 
 Wis. 74. See also Clark v. Austin, 38 Minn. 487 ; Detroit v. Chaffee, 68 
 Mich. 635. 
 
 « 2 Rev. Sts. Missouri, p. 1626. 
 
 » See Norton v. St. Louis, 97 Mo. 537. 
 
368 PERSONAL INJURIES. [CHAP. VI, 
 
 of some defect in its ways occasioned by the negligence of a 
 third person, it may, ordinarily, recover of such third person 
 the amount so paid.^ In such cases, the municipality and the 
 person whose negligence directly causes the injury are not in 
 pari delicto ; and, when the negligence of the municipality is 
 construetive merely, the rule that one wrong-doer cannot re- 
 cover damages against the other for an injury caused by their 
 joint offence does n.ot apply .^ And it seems that the right of 
 action survives, in favor of the municipality, against the per- 
 sonal representatives of the negligent third person.* The 
 damages in such a case cannot exceed the damages recovered 
 against the municipality, and are not to include double dam- 
 ages which have been recovered under the provisions of a 
 statute.* It would seem that ordinarily the municipality will 
 be permitted to recover ordinary costs of suit as against the 
 negligent third party .^ The rule in these cases may be said 
 to rest upon the principle, which seems to be settled at com- 
 mon law by the weight of modem authority, that where the 
 act complained of is, legally speaking, although not of neces- 
 sity in fact, the act of several wrong-doers, such act not being 
 wanton, malicious, or wilfully wrong, one of such wrong- 
 
 1 Lowell V. Boston & Lowell R. R., 23 Pick. 24; Lowell v. Short, 4 
 Cush. 275; Lowell t>. Spaulding, 4 Cusli. 277; Stoughton v. Porter, 13 
 Allen, 91 ; Lowell v. Glidden, 159 Mass. 317 ; Troy v. Troy & Lansing 
 R. R. R., 49 N. Y. 657; Rochester v. Montgomery, 72 N. Y. 65 ; New 
 York V. Dimick, 20 Abb. N. C. 15, 49 Hun, 241 ; Chicago v. Robbins, 2 
 Black, 418; Duxbury u. Vermont Central R. R., 26 Vt. 751; Veaaie v. 
 Penobscot R. R., 49 Maine, 123. 
 
 2 New York v. Dimick, 20 Abb. N. C. 15, 49 Hun, 241 ; Brockville v. 
 Arthurs, 130 Penn. St. 501 ; and see McDonald v. Lockport, 28 HI. App. 
 157. 
 
 ' Rochester v. Campbell, 55 Hun, 138. Where an electric ligit com- 
 pany was under a contract to light a village and its assignor had erected 
 a pole in a street for that purpose, with the consent of the municipality, 
 it was held that the electric light company was not liable to the munici- 
 pality for any part of a judgment recovered against the latter for an injury 
 occasioned to a private person by his coming into coUision with the pole. 
 jGeneva v. Brash Electric Light Co., 50 Hun, 581. 
 
 * Lowell V. Boston & Lowell R. R., 23 Pick. 24; Lowell v. Short, 4 
 Cush. 275 ; Newbury v. Connecticut & Passnmpsic R. R., 25 Vt. 377. 
 
 6 New York V. Dimick, 20 Abb. N. C. 15, 49 Hun, 241, but see Lowell 
 V. Boston & Lowell R. R., 23 Pick. 24. 
 
§ 191.] LIABIUTT AS TO WATS. 369 
 
 doers, defendant, is entitled to recover the whole, or at least 
 a proportional part, according to circumstances, of the dam- 
 ages in which he has been mulcted, from the others.^ Thus 
 it is said: "when two parties, acting together, commit an 
 illegal or wrongful act, the party who is held responsible in 
 damages for the act cannot have indemnity or contribution 
 from the other, because both are equally culpable, or partiei- 
 
 ' See the opinion of Ellsworth, J., in Bailey v. Bossing, 28 Conn. 455, 
 in which case it was held, where judgment had been recovered in tort 
 against three defendants jointly interested in the running of a stage- 
 coach, for an injury caused to a traveller upon the road by the actual 
 negligence of one of the defendants, who was driving, and another de- 
 fendant had paid the judgment; that the defendant who had so paid was 
 entitled to a contribution at least from the defendant actually negligent, 
 if not to a full indemnity. See Pownal v. Ferrand, 6 B. & C. 439; Jen- 
 kins V. Tucker, 1 H. Bl. 90, and also Nashua Iron & Steel Co. r. Worces- 
 ter & Nashua R. B., 62 N. H. 159. In the latter case it was held that a 
 plaintiff who, by reason of his and the defendant's negligence, has been 
 compelled to pay damages to another, may recover indemnity, although, 
 but for his own negligence, the injury would not have happened, if, at 
 the time it occurred, he could not, and the defendant could, have pre- 
 vented it by the exercise of ordinary care. In this case, by the defend- 
 ant's careless management of its cars and engines, the plaintifE's horse 
 was injured, and ran, and injured one C. who was without fault; and C. 
 recovered damages against the plaintiff for the injury. It was held that 
 C. had the right to pursue her remedy, in the first iustance, against either 
 the plaintiff or the defendant. The case seems to assume that the negli- 
 gent act of the defendant was the proximate cause of the fright of the 
 plaintiCs horse, and also of the subsequent injury to C. And see § 99, 
 ante, and cases cited. But if this be so, it is difficult to see how, in law, 
 C. could be entitled to recover against the plaintiff, in the former case, 
 since the law recognizes but one proximate and efficient cause for the 
 same act. See §§ 97, 98, ante. It was held that a natural gas company 
 compelled to pay damages for personal injuries caused by tlie leakage of 
 gas from a defective pipe may recover over from a street railway com- 
 pany whose negligent excavation in the street caused the pipe to break. 
 Philadelphia Co. o. Central Traction Co., 165 Penn. St. 456. As to the 
 doctrine of contribution, as between wrong-doers generally, see also 
 Pearson r. Skelton, 1 M. & W. 504 ; Betts v. Gibbius, 2 Ad. & El. 57 ; 
 Fletcher v. Harcott, Hutt. 55, 1 Kol. Abr. 95 ; Jacques v. Golightly, 2 
 Wm. Bl. 1073 ; Smith v. Bromley, 2 Dougl. 696; Williams o. Hedley, 8 
 East, 378; Gray v. Boston Gas Ught Co., 114 Mass. 149; Jacobs v. Pol- 
 lard, 10 Cush. 287; Worcester v. Eaton, 11 Mass. 377; Coventry v. Bar- 
 ton, 17 Johns. 142. 
 
 24 
 
370 PERSONAL INJURIES. [CHAP. VI. 
 
 pes] criminig, and the damage results from their joint offence. 
 The rule does not apply when one does the act or creates the 
 nuisance, and the other does not join therein, but is thereby 
 exposed to liability and suffers damage. He may recover 
 from the party whose wrongful act has thus exposed him. 
 In such case, the parties are not in pari delicto as to each 
 other, though, as to third persons, either may be liable. The 
 numerous cases are analogous, where towns, having been held 
 liable for an unsafe condition of the highway, have recovered 
 from persons whose acts caused the unsafe condition." ^ The 
 cases in this respect recognize no distinction between a lia- 
 bility cast upon the municipality by statute, as in the case of 
 highway liabilities, and a liability created by the common 
 law.^ It is to be observed, however, that, in many States, the 
 remedy over in favor of the municipality, as against the third 
 party in actual fault, is provided for by the statute. 
 
 1 Gray v. Boston Gas Light Co., 114 Mass. 149, 154. 
 
 2 See Lowell v. Boston & Lowell R. R., 23 Pick. 24 ; Lowell v. Shqrt, 
 4 Cush. 275 ; Swansey v. Chace, 16 Gray, 303 ; Milford v. Holbrook, 9 
 Allen, 17 ; West Boylston v. Mason, 102 Mass. 341. 
 
§§ 191-192.] employer's liability. 871 
 
 CHAPTER VII. 
 
 OF THE MASTER'S OBLIGATION TO HIS EMPLOYEES. 
 
 SECTION I. 
 
 TO PROVIDE SUITABLE PLACES, APPLIANCES, AND AGENTS. 
 
 § 192. As to Places and Appliances, Generally. — The author- 
 ities are agreed that it is the duty of the master to provide a 
 suitable place in which, and suitable appliances with which, 
 the employee, being himself in the exercise of due care, can 
 perform his duty without being exposed to unnecessary dan- 
 gers ; that is, to dangers which do not of necessity attend the 
 exercise of the employment.^ This obligation of the master 
 is sometimes referred to the implied contract of service ; ^ but 
 it is believed to rest, primarily, upon the general duty which 
 
 * Indemaur v. Dames, L. R. 2 C. P. 311 ; Patterson v. Wallace, 1 
 Macq. 748; Cowley u. Mayor of Sunderland, 6 H. &N. 565; Williams o. 
 Clough, 3 H. & N. 258 ; Mellors v. Shaw, 30 L. J. Q. B. 333, 1 Best & S. 
 437; Watling v. Oaster, L. R. 6 Ex. 73; Ryan v. Fowler, 24 N. Y. 410; 
 Coombs V. New Bedford Cordage Co., 102 Mass. 275; CayzerK. Taylor, 10 
 Gray, 274; Seaverw. Boston & Maine R. R., 14 Gray, 466; Snow «. Housa- 
 tonic R. R., 8 Allen, 441 ; Gilman v. Eastern R. R., 10 Allen, 233, 13 Allen, 
 433; Walsh v. Peet Valve Co., 110 Mass. 23; Neveu v. Sears, 155 Mass. 
 303 ; O'Driscoll v. Faxon, 156 Mass. 527 ; Smith v. Peninsular Car Works, 
 60 Mich. 501 ; Johnson v. Spear, 76 Mich. 139 ; Van Dusen v. Letellier, 
 78 Mich. 492; Brown v. Gilchrist, 80 Mich. 56 ; Cincinnati, H. & D. R. R. 
 V. McMuUen, 117 Ind. 439; Kaspari u. Marsh, 74 Wis. 502; Cons. Coal 
 Co. V. Scheiber, 167 111. 539; Price v. Richmond & D. R. R., 38 S. C. 199. 
 The general duty of the master is the same in respect of animals as of 
 machinery or other appliances. Hammond Company v. Johnson, 38 
 Neb. 244. 
 
 " Coombs V. New Bedford Cordage Co., 102 Mass. 572; Summersell v. 
 Fish, 117 Mass. 312 ; Albro v. Jaquith, 4 Gray, 99 ; Alaska Co. v. Whelaa, 
 27 U. S. App. 1. 
 
372 PERSONAL INJURIES. [CHAP. VII. 
 
 requires the owner of property not negligently to expose to 
 danger persons who come upon his premises to transact 
 business with him, or by his invitation or procurement.^ So 
 far as this general rule of duty is modified or controlled by 
 the existence of the relation of employer and employee, such 
 modification is the result of the implied contract by which 
 the servant agrees not to look to the employer for indemnity 
 for the negligence of his fellow-servants,^ and to assume the 
 risk obviously attending the exercise of the employment.* 
 The issue being the defendant's negligence, the burden is on 
 the plaintiff to show that the appliances furnished him for 
 doing his work were insufficient or dangerous.* But, while if 
 the appliances furnished were, in the beginning, safe and suit- 
 able, it must, in order to charge the master, be shown that he 
 was in fault in not ascertaining that these had become un- 
 safe ; ° yet, if the master fail to furnish safe appliances in the 
 first place, he is to be charged with knowledge of any defect 
 in them by reason of which an employee is injured.® 
 
 § 193. This a Personal Duty. — The duty of the master in 
 this respect is not to be avoided by delegating it to another, 
 whether to a fellow- servant of the injured employee ^ or to a 
 
 1 See §§ 66 et seq., ante, and Riley u. Bazendale, 30 L. J. Ex. 87. 
 
 ' See §§212 et seq., post, notes and cases cited. 
 
 " See §§ 204 et seq , post, notes and cases cited. 
 
 * See § 111, ante, § 199, post, and cases cited, and also Minty v. Union 
 Pacific R. R., 21 Pac. Rep. 660 (Idaho, 1889) ; Brunswick v. Strilka, 30 
 111. App. 186; Hudson ». Charleston, C. & C. R. R., 104 N. C. 491. But 
 see Louisville & Nashville R. R. v. Coulton, 86 Ala. 129. Where a dec- 
 laration specifies the negligence complained of and the court finds that 
 the defects alleged could not have caused the injury, the defendant is not 
 bound to show that no other defect could have caused the injury. Len- 
 non V. Rawitzer, 57 Conn. 583. 
 
 6 Fenderson v. Atlantic City R. E.., 56 N. J. L. 788. 
 
 6 Union Pacific R. R. v. James, 56 Fed. Rep. 1001, 6 C. C. A. 217. 
 
 ' Sanborn v. Madera Flume & Trading Co., 70 Cal. 261 ; Moynihan v. 
 Hills Co., 146 Mass. 586; Hough v. Texas & Pacific R. R., 100 U. S. 213; 
 Texas & Pacific R. R. v. Barrett, 30 U. S. App. 196 ; Gowen v. Bush, 40 
 U. S. App. 349 ; Maher v. Thropp, 59 N. J. L. 186 ; Blazenic v. Iowa 
 Coal Co., 102 Iowa, 706; Houston v. Brush, 66 Vt. 734; St. Louis S. W. 
 R. R. V. Threat, 12 Tex. Civ. App. 375; Flike v. Boston & Albany R. R., 
 53 N. Y. 549 ; Trihay v. Brooklyn Lead Co., 4 Utah, 468 ; Bowers v. 
 
§§ 192-193.] employee's liability. 373 
 
 contractor, if the means of doing the work are furnished by 
 the owner and are defective.^ For the master, when acting 
 through an agent, undertakes that his agent shall be a suit- 
 able person for the position he holds, and is responsible for 
 his negligence.^ It is said that if a contrary rule were 
 adopted it would result in many cases to relieve corporations, 
 or any employer who acts through general superintendents, 
 from liability to servants occasioned by imperfect and defec- 
 tive machinery or appliances, or by incompetent or reckless 
 workmen.^ But if the machine or other appliance was origi- 
 nally safe and proper, and the injured employee was himself 
 
 Union Pacific K. K., 4 Utah, 215; Morton v. Detroit, B. C. & A. K. R., 
 81 Mich. 423. It is held that having directed the proper person to repair 
 a defective machine, the master is not responsible for an accident caused 
 by the use of it. Schulze v. Rohe, 149 N. T. 132. 
 
 1 Johnson v. Spear, 76 Mich. 139 ; Chicago, B. & Q. K. R. v. Clark, 26 
 Neb. 645; Mclntyre v. Boston & Maine R. R., 163 Mass. 189. 
 
 * Northern Pacific R. R. v. Herbert, 116 U. S. 650 ; Stewart v. Phila^ 
 delphia, W. & B. R. R., 17 Atl. Rep. 639 (Del. 1889) ; Richmond & Dan- 
 ville R. R. V. Norment, 84 Va. 167; Niantic Coal & Mining Co. v. 
 Leonard, 126 HI. 216 ; United States Rolling Stock Co. v. Wilder, 116 
 111. 100. There are cases which seem to hold that if one servant suffers 
 injury by the wilful act or wanton negligence of another, the master is 
 responsible. Thus where the servant's employment included the safe 
 custody and proper use of dangerous articles, as signal torpedoes, it was 
 held that if by the dangerous use of these, even against the rules of the 
 master, another servant was injured, the master would be liable. Pitts- 
 burg, C. & St. L. R. R. V. Shields, 47 Ohio St. 387. In Shumacher v. 
 St. Louis & S. F. R. R., 39 Fed. Rep. 174, it was held that if a railway 
 conductor utterly fails to take any precaution to prevent injury to his _ 
 principal's employee, whom he knows to be in a dangerous position, the 
 fact that the employee carelessly placed himself in that position may not 
 be a defence to his action against the railroad company for his injury ; 
 since the recklessness of the conductor, under such circumstances, may 
 amount to a wilful act. If the overseer of a room in a mill imposes upon 
 a workman labor which he cannot perform without assistance, and know- 
 ingly acquiesces in his obtaining help from such other workmen as he 
 chooses to call, and the workman, in good faith, although not in the ex- 
 ercise of good judgment, orders a boy to assist him who is unfit by reason 
 of lack of experience and instruction, and who is thereby injured, the 
 owner of the mill stands, as to liability for the injury, in the relation of 
 master to the person injured. Patnode v. Warren Cotton Mills, 157 
 Mass. 283. 
 
 « Laning v. New York Central R. R., 49 N. Y. 521, 532. 
 
374 PERSONAL INJURIES. [CHAP. Til. 
 
 charged with the duty of seeing that it was kept in a proper 
 and safe condition for use, and by reason of his own failure 
 of duty in this respect he is injured, the employer is not 
 responsible.^ The procuring of machinery from a reputable 
 maker meets the standard of ordinary care ; and, generally, 
 it is not negligence on the part of an employer to place in his, 
 mill, and, after proper inspection, to use, such machinery.^ 
 It is to be observed that the American courts generally are 
 disposed to hold the master to a stricter obligation than was 
 enforced by the English courts before the passage of the 
 Employers' Liability Aot.^ Thus it was said by Lord Chan- 
 cellor Cairns : " What the master is, in my opinion, bound to 
 his servant to do, in the event of his not personally superin- 
 tending and directing the work, is to select proper and com- 
 petent persons to do so, and to furnish them with adequate 
 materials and resources for the work. When he has done 
 this, he has, in my opinion, done all that he is bound to do." * 
 Commenting upon the rule thus stated, the court in Massa- 
 chusetts say : " Such a rule makes the liability of the master 
 depend largely upon the extent of the supervision which he 
 has undertaken personally to exercise over his business, and 
 recognizes few duties except those which the master has un- 
 dertaken personally to perform. ... If a master who takes 
 no personal part in the management of his business has any 
 duty to perform towards his servants, it is difficult to say that 
 it is always wholly performed by doing two things ; namely, 
 by employing competent servants, and by furnishing ample 
 
 1 Lee V. Barrow Steamship Co., 14 Daly, 230 ; Dewey v. Park, 76 
 Mich. 631. 
 
 " Reynolds v. Merchants' Woolen Co., 168 Mass. 501. 
 
 » 43 & 44 Vict, c 42. 
 
 * Wilson V. Merry, L. R. 1 H. L. So. 326, 332. The English courts 
 hold, however, that the master is responsible for his own negligence if he 
 personally engages or interferes in the work. Thus where the master 
 interfered with the construction of a scaffold and ordered improper and 
 unsafe materials to be used in it, by reason of which the employee was 
 injured, the employer was held to be liable. Robearts v. Smith, 26 L. J. 
 Ex. 319 ; and see Warren v. Wildee, 41 L. J. C. P. 104, n. ; Ashworth v. 
 Stanwix, 30 L. J. Q. B. 183 ; Mellors v. Shaw, 30 L. J. Q. B. 333, 1 B. & 
 S. 437; Griffiths v. Gidlow, 3 H. & N. 648. 
 
§ 193.] emploter's liability. 375 
 
 means. In order that the business may be properly managed, 
 the servants should not only be competent, but they should be 
 numerous enough to do, and they should have the means of 
 doing, whatever ought reasonably to be done, and such regula- 
 tions should be established as will insure the requisite subordi- 
 nation and control, and the exercise of reasonable intelligence 
 and care in the conduct of the business ; and it is almost as 
 difficult to define all the duties of the master in these respects 
 as to define the duties of a person under other relations. If 
 it is not the absolute duty of the master to furnish suitable 
 machinery, and if he is not held to warrant that the servants 
 that he employs to furnish the machinery, or to keep it in 
 repair, shall always use reasonable care, then the duty of a 
 master who does not personally conduct his business, if he is 
 under any duty, we think, must be to use reasonable care in 
 the management ; and that is to exercise, or have exercised, 
 a reasonable supervision over the conduct of his servants, as 
 well as to use reasonable care in seeing that his servants are 
 competent, and are furnished with suitable means for carry- 
 ing on the business." ^ So, in the same case, it was held that 
 if a master employs a servant to work on a machine which is 
 so far out of repair as to be dangerous, and which has re- 
 mained in that condition for a long time, he is not relieved 
 from responsibility to the servant for an injury suffered while 
 working on the machine, merely by proof that he had in- 
 trusted to competent servants the duty of making ordinary 
 repairs of the machine, and the keeping of it in order from 
 day to day, and has supplied them with suitable means for 
 that purpose, if it appears that the servants only inspected the 
 machine for the purpose of keeping it in order so that it 
 would do good work, without regard to its condition as a 
 dangerous machine. Thus the result of the view held by the 
 Massachusetts court is to establish the rule that the failure of 
 the master to provide proper means and appliances for the 
 doing of the work is not to be avoided by the circumstance 
 that such failure was directly chargeable to the negligence of 
 a fellow-servant of the injured employee ; so that the common- 
 
 ^ Per Field, C. J., in Bogers v, Ludlow Manuf . Co., 144 Mass. 198, 
 202. 
 
376 PERSONAL INJURIES. [CHAP. VII. 
 
 law rule that the master is not liable for injuries caused by the 
 negligence of the plaintiff's fellow-servant has no application 
 to such cases.^ It is believed that the rule of absolute liability 
 thus expressed has not been so distinctly formulated else- 
 where ; but the principle of it has been recognized in numer- 
 ous American cases, which proceed upon the general ground 
 that the servant charged with the furnishing or equipment of 
 machinery or appliances is not the fellow-servant of the injured 
 employee, but the agent of the common master. Thus it is 
 said in Michigan : " It is well settled . . . that the master 
 must provide his servant with a safe place to work in, and 
 furnish him with suitable machinery and appliances with 
 which to perform such work, and it is his duty to keep such 
 machinery and appliances in good repair. If he cannot do 
 this himself, personally, he must provide some other person 
 to take his place in this respect; and the person to whom 
 the master's duty is thus delegated — no matter what liis 
 rank or grade, no matter by what name he may be designated 
 — r cannot be a servant in the sense or under the rule applica- 
 ble to injuries occasioned by fellow-servants. Such a person 
 is an agent, and the rules of law applicable to principal and 
 agent must apply." ^ So where the employee of a railroad 
 company was injured by a defect in a car of the defendant on 
 which he was employed, it was said : " There can be no ques- 
 tion as to the liability of the railroad company to the plaintiff 
 for the injuries he sustained. If no one was appointed by the 
 company to look after the condition of the cars, and see that 
 the machinery and appliances used to move and to stop them 
 were kept in repair and in good working order, its liability 
 
 1 It is said : " It was settled law in Massachusetts [before the passage 
 of the Employers' Liability Act, c. 270, Acts of 1887] that masters were 
 personally bound to see that reasonable care was used to provide reason- 
 ably safe and proper machinery, so that, if the duty was entrnsted to an- 
 other and was not performed, the fact that the proximate cause of the 
 damage was the negligence of a fellow-servant was no defence." Per 
 Holmes, J,, in Ryalls v. Mechanics' Mills, 150 Mass. 188, 194, citing Gil- 
 man V. Eastern R. K., 13 Allen, 433, 440 ; Lawless v. Connecticut Kiver 
 R. R., 136 Mass. 1. 
 
 2 Per Morse, J., in Van Dusen v. Letellier, 78 Mich. 492, approved in 
 Morton ». Detroit, B. C. & A. R. R., 81 Mich. 423, 431. 
 
§ 193.] employer's liability, 377 
 
 . . . would not be the subject of contention. ... If , however, 
 one was appointed by it charged with that duty, and the in- 
 juries resulted from his negligence in, its performance, the 
 company is liable. He was, so far as that duty was con- 
 cerned, the representative of the company ; his negligence 
 was its negligence, and imposed a liability upon it." ^ So 
 where the employee was injured by reason of the imperfect 
 protection of the machinery upon which she was employed, 
 and it was contended that the defect was caused by the negli- 
 gence of a feUow-servant, the court said that "the person 
 whose duty it was to keep the machinery in order, so far as 
 that duty goes, was n'ot, in any legal sense, the fellow-servant 
 of the plaintiff. To provide machinery and keep it in repair, 
 and to use it for the purpose for which it was intended, are 
 very distinct matters, — they are not employments in the 
 same common business, tending to the same common result. 
 . . . The two persons may, indeed, work under the same 
 master and receive their pay from the same source ; but this 
 is not sufiScient. ... In the repair of the machinery the ser- 
 vant represented the master in the performance of his part 
 of the contract, and therefore ... his negligence in that 
 respect is the omission of the master or employer in contem- 
 plation of law." ^ Many American cases, however, have held, 
 
 1 Per Field, J., in Northern Pacific R. R. v. Herbert, 116 U. S. 650, 
 652 ; and see Cincinnati, H. & D. R. R. v. McMuUen, 117 Ind. 439, 444. 
 
 ^ Shanny v. Androscoggin Mills, 66 Maine, 420, See also Wedgwood 
 V. Chicago & Northwestern R. R., 41 Wis. 478 ; Bessex v. Chicago & 
 Northwestern R. R., 45 Wis. 477 ; Brabbitts v, Chicago & Northwestern 
 R. R., 38 Wis. 289 ; Smith v. Chicago, Milwaukee & St. P. R. R., 42 Wis. 
 520 ; Toledo, Peoria & Warsaw R. R. v. Conroy, 68 111. 560 ; Drymala v. 
 Thompson, 26 Minn. 40 ; Lake Superior Iron Co. v. Erickson, 89 Mich. 
 492, as cited § 42, ante; Laning v. New York Central R. R., 49 N. Y. 521. 
 In the latter case, the court holds that the implied contract of the master 
 with the servant requires " that the servant shall be under no risks from 
 imperfect or inadequate machinery, or from unskilled or inadequate ser- 
 vants of any grade. It is a duty or contract to be affirmatively and posi- 
 tively fulfilled and performed. And there is not a performance of it until 
 there has been placed for the servant's use perfect and adequate physical 
 means and for his help-meets fit and competent fellow-servants ; or due 
 care used to that end. That some general agent clothed with power and 
 charged with the duty to make performance for the master, has not done 
 
878 PERSONAL INJURIES. [CHAP. VII. 
 
 either directly or by implication, the English rule ^ upon this 
 subject.^ 
 
 § 194. Employer not Answerable for Latent Defects : Illustra- 
 tions of Rule. — The master, not being an insurer of the safety 
 of his employees, is not responsible for injuries to them caused 
 by concealed defects which could not have been detected by a 
 careful inspection in season to avoid the accident.^ So, in 
 a large class of cases, the question is whether or not the 
 defect in tools or machinery which caused the accident was 
 such as ought to have been perceived upon a reasonably care- 
 ful inspection ; * and the mere fact that some sort of an 
 inspection has been made, by the person whose duty it was 
 to make it, will not be sufficient to debar the plaintiff from a 
 recovery.* Since the master is charged with knowledge of 
 
 his duty at all, or has not done it well, neither shows a performance by 
 the master, nor excuses the master's non-performance. When it is done,, 
 then and not till then, his duty is met or his contract kept." 
 
 ^ See Wilson v. Merry, supra. 
 
 2 See cases cited, §§ 197, 198, post. 
 
 8 Readhead v. Midland Railway, 2 Q. B. 412, 4 Q. B. 379; Ladd v. 
 New Bedford R. R., 119 Mass. 412; Roughan v. Boston & L. Block Co., 
 161 Mass. 24; Reynolds v. Merchants' Woolen Mill, 168 Mass. 501; Lin- 
 coln Street R. R. v. Cox, 48 Neb. 807; Reid v. Central R. R. & Banking 
 Co., 81 Ga. 694; Georgia R. R. & Banking Co. v. Nelms, 9 S. E. Kep. 
 1049 (Ga. 1889) ; Hotis v. New York Central & H. R. R. R., 6 N. Y. Sup. 
 N. E. Rep. 605 ; O'Donnell v. Baum, 38 Mo. App. 245. So, as to a con- 
 cealed flaw in a rail. Deolin ». Wabash, St. L. & P. R. R., 87 Mo. 545. 
 
 4 Smith V. New York Central & H. R. R. R., 118 N. Y. 645; Witte v. 
 Diefenbach, 54 N. Y. S. C. 508 ; Thorn v. New York City Ice Co., 46 
 Hun, 497; Sneider v. Treichler, 56 Hun, 309; Le Croy v. New York, L. E. 
 & West. R. R., 10 N. Y. Sup. N. E. Rep. 382; Morton v. Detroit, B. C. 
 & A. R. R., 81 Mich. 423; Chicago & Alton R. R. v. Dunn, 23 111. App. 
 148; Moran v. Brown, 27 Mo. App. 487; Covey v. Hannibal & St. Jo. 
 R. R., 27 Mo. App. 170; Code, Ala., § 2590, and Memphis & Charleston 
 R. R. V. Askew, 90 Ala. 5; Howard Oil Co. v. Davis, 76 Tex. 630; Mis- 
 souri Pacific R. R. V. Henry, 75 Tex. 220; Daniels v. Union Pacific R. R., 
 23 Pac. Rep. 762 (Utah, 1890). 
 
 * Thus the fact that the defendant railroad has inspected the appli- 
 ances by reason of defect in which the accident occurred, just before the 
 accident, and found them in good order, will not be a defence to the 
 action if it appears that the officer of the defendant making the inspec- 
 tion passed over defective machinery without noticing it. Missouri Paci- 
 fic R. R. V. McElyea. 71 Tex. 873. 
 
§§ 193-194.] employer's liability. 379 
 
 the tendency of appliances to wear out and deteriorate,* it 
 is held that in order to detect defects not perhaps at first 
 discoverable, but which may manifest themselves after the 
 machinery has been for some time in use, it is the duty of the 
 employer to adopt and use from time to time such practicable 
 tests as may reasonably be expected to lead to the discovery 
 of any defects. If there are known methods of testing the 
 condition of machinery from time to time, it is said to be the 
 duty of the employer to adopt them although these may not 
 be infallible.^ A correlative question is whether the plaintifE 
 himself used reasonable care to detect the defect ; but he will 
 not be held to make the closest possible inspection.^ The 
 burden of proof is upon the plaintiff to show that the defend- 
 ant has been negligent in not detecting the defect ; and the 
 fact of such negligence must be shown by positive testimony, 
 unless in cases in which the happening of the accident is 
 prima facie evidence of negligence.* Where the facts are 
 conclusive of the question, it may be determined by the court 
 as being a question of law ; but where the facts in testimony 
 are controverted, or no clear conclusion can be drawn from 
 
 1 Louisville R. R. v. Utz, 133 Ind. 265. 
 
 ' Manser v. Eastern Counties Railway, 3 L. T. 585 ; Murphy v. Phil- 
 lips, 35 L. T. 477. 
 
 » Morton v. Detroit, B. C. & A. R. R., 81 Mich. 423, and see §§ 150, 
 151, ante, notes and cases cited. 
 
 * Duffy B. Upton, 113 Mass. 544. So it was held in this case, that the 
 mere fact that the machine upon which the employee was at work broke, 
 and hurt the employee, upon extra force being applied to it, would not jus- 
 tify the inference that the master was negligent in that he had furnished 
 an improper machine. The rule, as stated in the text, is founded upon 
 the assumption that the burden remains throughout upon the plaintiff to 
 show that the defendant has been negligent. See §§ 111, 111 a, 112, ante. 
 It has been held that a servant, in order to recover for an injury happen- 
 ing to him in the course of his service, through defects in the machinery, 
 or appliances furnished for doing the work, must allege and prove actual 
 notice, to the master, of the existence of the defect. McMillan v. Sarar 
 toga & Washington R. R., 20 Barb. 449, referring to dicta contained in 
 Eeegan v. Western R. R., 4 Selden, 175 ; but it is apprehended that this 
 case does not state the existing rule of law upon this subject, although if 
 the existence of the defect be known to the servant, and he, concealing it 
 from the master, continue in the employment, he may take the risk of 
 injury. See §§ 203 et seq., post, notes and cases cited. 
 
880 PERSONAL INJURIES. [CHAP. TIL 
 
 them, the question will be left to the jury, as being a question 
 of fact.* Applying the rule stated, it is held generally that a 
 master is responsible to his servant for injuries suffered by 
 the latter by reason of defects in a building in which the 
 servant was at work, which defects the master knew or ought 
 to have known, but which were not obvious, nor easily to be 
 detected by the servant.^ Where the injury was occasioned 
 by the falling of an elevator, it not appearing what was the 
 direct cause of the fall, and it did appear that the elevator 
 was of a style generally used; that it was selected, after 
 careful consideration, because of its high reputation for safety ; 
 that it was made of the best materials, in the best style, and 
 for a first-class price by manufacturers of high reputation, by 
 whom it was set up in the defendant's building ; and that it 
 had been in constant use both before and after the accident 
 without other accident, it was held that the employee's action 
 for his injury could not be maintained.^ But where there is 
 evidence tending to show that the elevator was decayed, or 
 without proper safety appliances, or out of running order, or 
 that the defendant was in any respect negligent in its man- 
 agement, the question of negligence is for the jury.* Where 
 an accident was caused by the explosion of a boiler which had 
 been made by a manufacturer of good reputation, and which 
 the defendant had had duly inspected from time to time, no 
 defects being discovered at such inspections; and after the 
 explosion it was found that the boiler was made of inferior 
 iron, and that the rivets were defective, but that these defects 
 could have been discovered only by cutting into the iron and 
 removing the rivets ; it was held error to charge that if the 
 defects were " discoverable by examination, or the application 
 of known tests, then the defendants are chargeable whether 
 
 1 Seese v. Northern Pacific R. K., 39 Fed. Rep. 487; Pullutro v. Dela- 
 ware, L. & W. R. R., 7 N. Y. Sup. ST. E. Rep. 510 (1890) ; Philadelphia 
 & Reading R. R. v. Huber, 24 W. N. C. 554. 
 
 '^ Kyan v. Fowler, 24 N. Y. 410. See § 197, post, and cases cited. 
 
 » Kaye v. Rob Roy Hosiery Co., 58 N. Y. S. C. 519, and see Straw- 
 bridge V. Bradford, 24 W. N. C. 536; Hart v. Naumburg, 57 N. Y. S. C. 392. 
 
 * Kern v. DeCastro & Donner Sugar Ref. Co., 5 N. Y. Sup. N. E. 
 Rep., 548 (1889); Appeal of Standard Manuf. Co., 18 Atl. Rep. 637 
 (Penn. 1889). 
 
§§ 194-195.] employee's liability. 381 
 
 they knew it or not," there being no testimony as to what 
 known tests it would be proper to i-esort to.^ Where there 
 was testimony to show that the appliances furnished by an 
 employer for the purpose of lowering his employees into an 
 iron mine were unsafe, and not the best employed by the 
 defendant elsewhere, it was held that the question of his 
 negligence was for the jury, although he had employed a 
 machinist to put the machinery in good order three weeks 
 before the accident, and it appeared that the machinery had 
 been much used, and that no accident had ever before occurred 
 from its use.^ Under a statute providing that owners of mines 
 shall " provide safe means of hoisting and lowering persons 
 in a cage covered with boiler iron, so as to keep safe . . . 
 persons descending into and ascending out of said shaft," it 
 was held that one employed at the bottom of a shaft, injured 
 by a lump of coal falling from a car by reason of its not being 
 covered as provided by the statute, might recover, under the 
 statute, for his injuries.^ 
 
 § 195. Same Subject : Rule applied to Railroads. — A rail- 
 road is bound, as to its employees, to provide safe and suit- 
 able appliances for the carrying on of its business,* but it is 
 not bound, as matter of law, to use absolutely the best and 
 safest appliances.^ And the question whether certain appli- 
 ances were necessary must often be determined by the cir- 
 cumstances of the particular case. Thus it is held, generally, 
 that the operation of a railroad without blocking its frogs 
 and switches is not, as matter of law, negligence ; ® but it was 
 
 1 BaUard v. Hitchcock Manuf. Co., 58 N. Y. S. C. 188. 
 
 " Myers t;. Hudson Iron Co., 150 Mass. 125. 
 
 ^ Durrant ». Lexington Coal Mining Co., 97 Mo. 62. 
 
 * Coleman v. Wilmington, C. & A. R. R., 25 S. C. 446; Richmond & 
 Danville R. R. v. Norment, 84 Va. 167. 
 
 « Chicago, B. & Q. R. R. v. Warner, 123 LI. 138; Chicago & Alton 
 R. R. V. Kerr, 148 111. 605; O'Connor v. 111. Cent. R. R., 83 Iowa, 105; 
 Gombel v. 111. Cent. R. R., 48 La. Ann. 1180; St. Louis & S. F. R. R. v. 
 Weaver, 35 Kan. 412. 
 
 • Missouri Pacific R. R. v. Lewis, 24 Neb. 848, and see Hewitt v. 
 Flint & Pere Marquette R. R., 67 Mich. 61. A statute requiring rail- 
 roads to fill and block switches so as to prevent the feet of their em- 
 ployees or others from being caught therein is not satisfied by tha 
 
382 PERSONAL INJUBIE8. [CHAP. VH. 
 
 held negligence to use at a station, where there were several 
 tracks and where couplings had to be promptly made, open 
 instead of blocked frogs, by the use of which the feet of the 
 employees engaged in making couplings were likely to be 
 caught.^ It is, as matter of law, negligence to leave a hole 
 unnecessarily in a road-bed, so that a brakeman, in the per- 
 formance of his duty in coupling cars, steps into it ; ^ and so 
 to permit rotten ties to remain in the track, whereby an em- 
 ployee in the performance of his duty is injured.^ Although 
 
 adoption of a method which, by the ordinary use of the road, becomes 
 inefiectual within two or three days. Eastman v. Lake Shore & M. S. 
 R. E., 101 Mich. 597. 
 
 1 Seley v. Southern Pacific R. E., 23 Pac. Rep. 751 (Utah, 1890). 
 
 = Pilbert v. Delaware & Hudson Canal Co., 56 N. Y. S. C. 170. Where 
 a brakeman in the line of his duty was running along by the side of a 
 train attempting to uncouple cars and fell under the train in consequence 
 of tripping over loose boards which covered a platform between the tracks, 
 it was held that the railway company was liable for the injury which he 
 thereby suffered. Sweat v. Boston & Albany R. R., 156 Mass. 284. 
 
 a Gulf, Colorado & S. F. R. R. v. Pettis, 69 Tex. 689; Houston & T. C. 
 R. R. V. MoNamara, 59 Tex. 255 ; Seder v. St. Louis, Iron Mt. & Southern 
 R. R., 100 Mo. 673; McFee v. Vicksburg,S. & P. R. R., 42 La. Ann. 790. 
 It seems, however, to have been held in Arkansas, that the danger of in- 
 jury from rotten ties falls within the risks assumed by the employee. 
 Little Rock & Fort Smith R. E. v. Townsend, 41 Ark. 882, but see Little 
 Rock, M. E. & T. E. E. v. Levette, 48 Ark. 838. For other cases in 
 which the road has been held to be liable, as to its employees, for main- 
 taining a badly constructed roadway, see Snow v. Housatonic E. E., 8 
 Allen, 441 ; Trask v. California Southern E. R., 63 Cal. 96. In Patterson 
 V. Pittsburg, &o. R. R., 76 Penn. St. 289, the defendant was held to be 
 liable for maintaining a side-track with too short a curve and an improper 
 connection with the main track ; and so in Porter v. Hannibal & St. Joseph 
 R. R., 60 Mo. 160, for maintaining such a track improperly constructed, 
 and in an uneven condition; but see Tuttle v. Detroit, Grand Haven & 
 Milwaukee Railway Co., 122 U. S. 189, where it is said that the courts are 
 not required to restrict the right of a railroad to construct its tracks in its 
 freight depots and yards with such curves as it may deem necessary and 
 proper. It was held that the fact that a " lip " had formed at the end of 
 a rail at a switch did not show negligence on the part of the company, it 
 appearing that a sufficient force of track-repairers was kept at work in the 
 yard where the accident happened, every day, and that the switch had 
 been used constantly up to the time of the accident and that nothing 
 wrong in it had been detected by any of the train-men using it. Chicago 
 & Alton R. R. V. Stites, 26 111. App. 430. It is the duty of a railway to 
 
§ 195.] employer's liability. 383 
 
 persons employed upon railroads having steep grades and 
 sharp curves assume greater risks than do those who are 
 employed upon railroads located on level land, yet the degree 
 of care to be required in the construction of a track varies 
 with circumstances, and what might not be faulty construc- 
 tion upon the level might be so in a road of steep grades 
 and sharp curves.^ It is the duty of a railway company to 
 furnish reasonably safe tracks for switching purposes.''' 
 Where a statute imposed the absolute duty on a railroad 
 company to maintain fences along its line, it was held that 
 the statute was for the protection not only of abutters on the 
 railroad but of trains' and employees as well, so as to secure 
 these a safe place in which to work, and that if, by reason of 
 the company's failure to maintain such a fence, a train em- 
 ployee was injured, the company might be liable.' A railroad 
 may be liable for injuries caused to its employees by the de- 
 fective construction of trestle-work upon its line,* or by its 
 failure to repair a "tell-tale" or bridge-guard,^ or by a culvert 
 improperly built,® or by the accidental starting of a locomo- 
 
 inspect its tracks after heavy rains. See Kansas City, &o. R. B. v. Eirk- 
 sey, 60 Fed. Rep. 999, 9 C. C. A. 321. 
 
 1 Patton V. Southern R. R., 42 U. S. App. 567. 
 
 ' Illinois Central R. R. v. Sanders, 166 111. 270. 
 
 8 Atchison, Top. & Santa Fe R. R. v. Reesman, 19 U. S. App. 596; 
 Chic, B. & Q. R. R. v. Anderson, 38 Neb. 112. It is held to be a ques- 
 tion of fact whether it is negligence in a railroad to leave brash and 
 timber on its track so as to obscure the view to employees engaged in 
 switching. Oregon Short Line, &c. R. R. v. Tracy, 29 D. S. App. 529. 
 
 * Elmer v. Locke, 185 Mass. 575 ; Interstate C. R. T. R. R. v. Fox, 41 
 Kan. 715. 
 
 6 Warden u. Old Colony R. R., 137 Mass. 204 ; Darling v. N. T., Prov. 
 & Boston R. R., 17 R. I. 708; Wallace v. Cent. Vt. R. R., 138 N. Y. 
 302; Chicago, M. & P. R.R. v. Carpenter, 56 Fed. Rep. 451, 5 C. C. A. 
 551. As to the duty of the railroad in constructing overhead bridges, see 
 § 205, post. 
 
 • Davis V. Central Vermont R. R., 55 Vt. 85 ; Chicago, &c. R. R. v. 
 Swett, 45 HI. 197. It is held that a provision that railway companies 
 shall fence their tracks and be liable for injuries to live-stock occasioned 
 by their failure so to do, is for the protection of persons on the trains as 
 well as of animals on the tracks, and so that a railway company is liable 
 to a brakeman injured by the collision of his train with an animal which 
 had come upon the track through a defect in the fence. Doiiegan ». 
 Eihardt, 119 N. Y. 468. 
 
384 PERSONAL INJURIES. [CHAP. VII. 
 
 tive by reason of its having a leaky throttle valve.^ It has 
 been held negligent on the part of the railroad to fail to pro- 
 vide foot-boards for its freight cars,^ or safe and suitable car- 
 ladders,^ or sound coupling-pins and draw heads.* So the 
 railroad was held liable where the^ buffers on two of its cars 
 were so placed that they passed each other when the cars 
 were shunted together, and crushed the brakeman who was 
 engaged in coupling them.^ If the railway company under- 
 takes to run its trains by telegraph, it is bound to furnish 
 suitable lines and operators ; and if it fails to do this, an 
 employee who is injured by. reason of its neglect may maintain 
 an action for such injury.* The facts that a defective freight 
 car was attached to a train, with nothing to show that it 
 differed from the other cars, and that it became necessary to 
 use it in such a manner as resulted in the injury of an em- 
 
 1 Conners v. Durite Mfg. Co., 157 Mass. 163. 
 ^ Hosic V. Chicago, Rock Island & Pacific R. R., 75 Iowa, 683. 
 " Richmond & Danville R. R. v. Moore, 78 Va. 93, and see Keith ». 
 New Haven & Northampton Co., 140 Mass. 175. 
 
 * Bowers v. Union Pacific R. R., 4 Utah, 215 ; Chicago, R. I. & Pao. 
 R. R. V. Linney, 19 U. S. App. 315. It was held that the failure to pro- 
 vide a flat car with brakes was not actionable negligence. Hewitt v. 
 Flint & Pere Marquette R. R., 67 Mich. 61. See Chicago, B. k Q. R. R. 
 I). Warner, 123 lU. 138. Where a brakeman, in the discharge of his 
 duty attempted to climb upon a coal car and, in so doing, tried to put his 
 foot upon the "jaw-strap," an appliance usually placed out of sight under 
 the bodies of such cars to strengthen them, and, there being no "jaw- 
 strap " under the car, his foot slipped to the rail and was crushed, it was 
 held that the question of the defendant's negligence in omitting to fur- 
 nish the car with a "jaw-strap" was for the jury. Coates v. Boston & 
 Maine R. R., 153 Mass. 297 ; and see Louisville, N. A. & C. R. R. v. 
 Buck, 116 Ind. 566. 
 
 6 Ellis V. New York Central R. R., 95 N. Y. 546 ; Baltimore & Poto- 
 mac R. R. V. Maokey, 157 U. S. 72 ; Texas & Pac. R. R. v. Archibald, 170 
 U. S..665; Atchison, Topeka & S. F. R. R. v. Meyers, 24 U. S. App. 295; 
 Terre Haute & Ind. R. R. «. Mansberger, 24 U. S. App. 551 ; Gottlieb v. 
 N. Y., L. E. & W. R. R., 100 N. Y. 462; Dooner v. Del. & H. Canal Co., 
 164 Penn. St. 17; Eddy v. Prentice, 8 Tex. App. 58. A railroad is not 
 negligent merely in conveying over its lines cars differing in construction 
 from those owned by itself. Louisville, N. A. &c. R. R. v. Bates, 146 
 Ind. 564. See post. 
 
 • Walker v. Grand Trunk Railway, 2 Hask. 97 ; Grand Trunk Rail- 
 way V. Walker, 154 U. S. 653. 
 
§ 195.] employer's liability. 385 
 
 ployee who had no knowledge of its condition, were held to 
 furnish prima facie evidence of negligence on the part of the 
 company, without proof that it had notice of the defect.^ The 
 same rule was held as to defects in the coupling machinery of 
 foreign cars used on the defendant road, when these were 
 apparent upon ordinary inspection.^ But it has been held 
 that where an accident to an employee occurs by reason of the 
 improper loading of a car, it must appear, in order to a 
 recovery, that the conduqtor of the train, or other person in 
 charge, had actual knowledge of the unsafe condition of the 
 car.3 Where a railroad company placed upon its track a car 
 higher than the cars which it had customarily used, so that 
 an employee, standing on the car in the performance of his 
 duty, was struck by a bridge over the track and killed, which 
 would have been impossible had he been standing on a car of 
 the height customarily used by the road, it was held that the 
 question of the defendant's negligence was for the jury.* A 
 
 1 Guthrie V. Maine Central R. R., 81 Maine, 572. 
 
 2 Goodrich V. New York Central & H. R. R. R., 116 N. Y. 397. The 
 act, April 2, 1890, Ohio Laws, vol. 87, p. 149, makes it unlawful for a rail- 
 road knowingly to use or operate any defective car or locomotive, and 
 provides that in an action for injuries proof of a defect in a car or loco- 
 motive shall be prima facie evidence of negligence; see Railway Co. v. 
 Erick, 51 Ohio St. 146 ; but under the act a plaintiff employee is not 
 excused from the exercise of due care ; and he will not be justified in 
 continuing in the service after knowledge of the defect, unless he has a 
 right to rely upon a promise of the railroad to make the defect safe. 
 Hesse v. Raih-oad Co., 58 Ohio St. 167. 
 
 8 Louisville & Nashville R. R. v. Brice, 84 Ky. 298. 
 
 4 Stirk V. Central R. R. & Banking Co., 79 Ga. 495. In Hodgkins v. 
 Eastern R. R., 119 Mass. 419, it was held that the making up of a train 
 of cars with platforms of unequal height, whereby a brakeman engaged 
 in the line of his duty was injured, being the act of the fellow-servant of 
 the plaintiff, he could not recover therefor, in the absence of proof that 
 there was negligence in the selection of the fellow-servant. In this case 
 the question does not appear to have been raised whether there might not 
 have been a liability on the part of the railroad for furnishing cars of 
 unequal height which would be dangerous when brought together for 
 coupling, in which case the defendant might be liable although the act of 
 a fellow-servant contributed to cause the accident. See § 200, post, and 
 Lawless v. Connecticut River R. R., 136 Mass. 1. Maintaining a "tell- 
 tale " of insufficient height or undue rigidity, by coming in contact with 
 
 25 
 
386 PEESONAL INJURIES. [CHAP. VII, 
 
 railroad train hand whose duties do not require him to ascer- 
 tain the limits of the corporation's road has the right to as- 
 sume that a side-track upon which he is customarily sent in the 
 performance of the duty, and which is directly connected with 
 the corporation's main line, is a part of its system ; and he is 
 entitled to the care and protection of the corporation while 
 running over it.^ It is the duty of a railway company to 
 make and enforce rules for the carrying on of its business, 
 such as, if faithfully observed, will protect its employees from 
 unnecessary danger.^ The obligation of a railroad company 
 to furnish cars which shall be reasonably safe for its em- 
 ployees to run, attaches as to cars belonging to other corpora- 
 tions, which are run over the defendant road in the ordinary 
 course of business. Accordingly, the railroad company is 
 bound to inspect the cars coming on its road belonging to 
 another company, just as it is to inspect its own cars. It is 
 its duty as master to do this ; and it may be responsible for 
 the consequences of defects visible by careful inspection, and 
 should either remedy such defects or refuse to receive such 
 cars. The duty of examination, like the ordinary duty of 
 furnishing suitable appliances, rests in the first instance upon 
 the master ; it is not to be avoided by delegation,^ and the 
 degree of care to be exacted is to be measured by the danger 
 to be anticipated and avoided.* The duty of the railroad 
 company in this respect rests upon like principles with that 
 which, as being a carrier of passengers for hire, it owes to 
 passengers in respect of accidents caused by the negligence 
 of, or defective means of transportation furnished by, other 
 carriers in privity with it.^ The duty of a railroad to inspect 
 
 which a freight brakeman is injured, is a breach of the duty of the rail- 
 road to provide safe and sufficient appliances. Darling v. N. T., Prov. & 
 B. R. R., 17 R. I. 708, so as to a telegraph pole maintained by the com- 
 pany and so set as to endanger the safety of its employees. Whipple v. 
 N. Y., N. H. & H. R. R., 19 R. I. 587. 
 
 1 Grand Trunk Railway v. Tennant, 21 U. S. App. 682. 
 
 ' Henion v. New York, N. H. & H. R. R., 51 U. S. App. 157. 
 
 » Union Pacific R. R. v. Daniels, 152 U. S. 684 ; Bailey v. Rome, W. 
 & O. R. R., 139 N. Y. 302; Raiboad v. Reagan, 96 Tenn. 128, and see 
 § 193, ante. 
 
 * Goodrich v. New York Central & H. R. R. R,, 116 N. Y. 398. 
 
 5 See §§ 46-50, ante, notes and cases cited. 
 
§§ 195-196.] employee's liability. 387 
 
 cars appliea to cars belonging to private owners which are to 
 be hauled by it over its road.^ If a railroad inspects a foreign 
 car and finds concealed defects, it is its duty to give notice to 
 its employees who are to run the car ; but if the defects are 
 obvious the employees undertaking to run the car may assume 
 the risk of injury .^ 
 
 § 196. Same Subject: As to Machinery. — The master is 
 bound to provide machines reasonably adapted to the purposes 
 for which they are intended, and if the employee, without 
 fault or notice on his own part, is injured by the negligence of 
 his employer in this respect, he may recover for the injury.' 
 It does not matter whether the defective instrument or appli- 
 ance causing the injury is the property of the employer, or 
 not ; so long as he has the possessory right to use it and it is 
 under his control. Thus the fact that a car used by the 
 defendant, and by a defect in which the plaintiff was injured, 
 was furnished the defendant by a railroad corporation, the 
 defendant being obliged to take whatever car was furnished 
 him, will not, of itself, relieve the defendant from responsi- 
 bility for the injury suffered by the plaintiff.* But the master 
 is not a guarantor of the safety of the machinery furnished by 
 him,* and is bound only to ordinary care and prudence in select- 
 ing and arranging it, and he has a right to use such machinery 
 as the experience of other manufacturers has shown to be reason- 
 ably safe, even though better machinery may exist.* For the 
 
 1 Elkins V. Penn. R. R., 171 Penn. St. 121. But it was held that the 
 rale does not apply to companies or persons on whose sidings loaded cars 
 are delivered for unloading by the owner of the sidings, even although 
 such sidings are many in number and of great length. McMuUen v. 
 Carnegie, 158 Penn. St. 518. 
 
 ' Atchison, Topeka & S. F. K. B. v. Meyers, 46 U. S. App. 226. 
 
 » Wilson V. WUlimantie Linen Co., 50 Conn. 433 ; Indiana Car Co. v. 
 Parker, 100 Ind. 181 ; O'Connor v. Adams, 120 Mass. 427. 
 
 * Spanlding v. Flynt Granite Co., 159 Mass. 587. 
 
 6 The France, 20 U. S. App. 212 ; Barber Asphalt Co. v. Odasz, 20 
 D. S. App. 326 ; Reilly v. Campbell, 20 U. S. App. 334. 
 
 • Washington & Georgetown R. R. v. McDade, 135 U. S. 554 ; Faber 
 V. Carlisle Manufg. Co., 126 Penn. St. 387 ; Reese v. Hershey, 163 Penn. 
 St. 253; Lehigh & Wilkes-Barre Coal Co. v. Hayes, 24 W. N. C. 559; 
 Hayden v. Smithville Mannfg. Co., 29 Conn. 548 ; Richards v. Rough, 53 
 
388 PERSONAL INJURIES. [CHAP. VII. 
 
 fact that an appliance might have been safer does not, neces- 
 sarily, prove that it was not reasonably safe,^ and the test as 
 to the suitability of an appliance is in the question whether a 
 reasonably prudent man would furnish it under the circum- 
 stances ; not merely whether it is in common use.^ So where 
 a servant is injured by the sudden starting of a machine 
 which he is cleaning, if there is no defect in tlie machine and 
 it is like similar machines in use elsewhere, and is in the same 
 condition as it was when he entered on the employment, the 
 mere fact that a certain contrivance, if attached to the 
 machine, might have prevented its starting, is not evidence of 
 negligence on the part of the master.^ The rule is different 
 when the starting of the machine is caused by a defect in it, 
 of which the master was, or ought to have been aware.* An 
 omission by an employer to provide against an alleged defect 
 in a machine in ordinary use, which defect has not been 
 specifically pointed out, will not justify the conclusion that 
 the employer has been negligent.^ While it is the master's 
 duty to see that the machinery is kept in safe condition, it is 
 said that he is not bound to overlook the proper regulation 
 and adjustment of parts which necessarily have to be adjusted 
 in the course of ordinary use with regard to the particular 
 work to be done.^ But the general obligation applies to all 
 
 Mich. 212 ; Lamotte v. Boyce, 105 Mich. 545 ; Shadford v. Ann Arbor 
 St. Railway, 111 Mioh. 390 ; Harley v. Buffalo C. M. Co., 142 N. T. 31 ; 
 Sisoo V. Lehigh k H. R. R., 145 N. Y. 296 ; Bonner v. Moore, 3 Tex. Civ. 
 App. 416 ; Priestly v. Fowler, 3 M. & W. 1 ; Ormond v. Holland, El. Bl. 
 & El. 102 ; Brown v. Accrington Co., 34 L. J. Ex. 208 ; Potts v. Plunkett, 
 9 Ir. C. L. R. 290 ; Weems v. Mathieson, 4 Macq. 215 ; Searle v. Lindsay, 
 31 L. J. C. P. 106. The rule is the same under the application of the 
 Employers' Liability Act, 43 & 44 Vict. c. 42. See cases, supra. 
 
 ^ Berning v. Medart, 56 Mo. App. 443. 
 
 2 Geno V. Fall Mt. Paper Co., 68 Vt. 568. 
 
 ' Ross V. Pearson Cordage Co., 164 Mass. 257. 
 
 * Donahue v. Drown, 154 Mass. 21 ; Mooney v. Conn. River Lumber 
 Co., 154 Mass. 407 ; Conners v. Durite Manuf. Co., 156 Mass. 163. 
 
 « Dingley e. Star Knitting Co., 134 N. Y. 552 ; Bradley, J., dissenting. 
 
 « Eicheler v. St. Paul Furniture Co., 40 Minn. 263. See § 193, ante. 
 The mere fact that machinery falls and injures the employee is held not 
 sufficient to charge the employer with negligence. Dobbins v. Brown, IID 
 N. Y. 188. See § 111, 111 a, ante, and cases cited. As to the duty of the 
 
§ 196.] employer's liability. 389 
 
 parts; and if some of these require, in operation, frequent 
 replacement, these, when adjusted, become a part of it, and a 
 defect^in one of them is a defect in the machine.^ The duty 
 to provide a safe place is not discharged by providing machin- 
 ery or premises safe in the first instance, nor by providing 
 for an inspection by a fellow-servant, and where the only 
 inspection of engines is made by the engineers in charge of 
 them, the engineers, for this purpose, represent the company.^ 
 In the absence of any statutory provision requiring machinery 
 to be fenced, boxed, or otherwise protected as a precaution 
 against accidents, the law imposes no legal duty upon the 
 owner and employer in this respect, if the danger is manifest 
 to a person of ordinary intelligence ; since, in such a case, the 
 danger, being apparent and incidental to the employment, is 
 assumed by the employee.^ But if the employee is a person 
 of tender years, or of manifest incapacity to understand the 
 danger to which his work exposes him, the fact that the ma- 
 chinery was left unguarded may be competent upon the 
 issue of the master's negligence.* If an employee puts the 
 appliances furnished him to an improper and dangerous use, 
 the master is not responsible for the injurious results.^ As in 
 
 employer to have machinery inspected from time to time, see cases cited.. 
 § 194, ante. 
 
 1 Toy V. U. S. Cartridge Co., 159 Mass. 313. 
 
 « McDonald v. Mich. Cent. R. R., 108 Mich. 87. See § 220, post. 
 
 ' Coombs t>. New Bedford Cordage Co., 102 Mass. 572 ; Sullivan ». 
 India Manufg. Co., 113 Mass. 396 ; Hale v. Cheeney, 159 Mass. 268 ; Town- 
 send V. Langles, 41 Fed. Rep. 919 ; Schroeder v. Michigan Car Co., 56 
 Mich. 132 ; Kelley v. Silver Spring Co., 12 R. I. 112 ; Sanborn v. Atchison, 
 Topeka & S. F. R. R., 35 Kan. 292 ; but see Reichla v. Gruensfelder, 52 
 Mo. App. 43. See §§ 204 et seq., post. 
 
 * Coombs V. New Bedford Cordage Co., 102 Mass. 572 ; The Maharar 
 jah, 40 Fed. Rep. 784. See Nadau v. White River Lumber Co., 76 Wis. 
 120. The English Factory Act, 7 & 8 Vict. c. 15, § 21, provides that 
 " machinery near to which children or young persons are liable to pass or 
 be employed, and all parts of the mill gearing in a factory, shall be 
 securely fenced," and that such protection shall not be removed while the 
 parts are in motion. This act is regarded by the English courts as being 
 merely declaratory of a duty exacted by the common law. See Coombs 
 V. New Bedford Cordage Co., 102 Mass. 572, 580. 
 
 ^ The Persian Monarch, 14 U. S. App. 158 ; Illinois Central R. R. v. 
 Daniels, 73 Miss. 258. 
 
390 PERSONAL INJURIES. [CHAP. VII. 
 
 all cases in which the plaintiff's right to recover rests upon 
 the assumption that the defendant has been negligent, so 
 when the allegation is that the employer has furnished 
 improper, or unnecessarily dangerous machinery, the question 
 is one of fact, or a mixed question of law and fact,^ and the 
 burden of proof to establish the negligence of the defendant 
 will rest upon the plaintiff.^ 
 
 § 197. Obligation to provide a Suitable Place, — It is the duty 
 of the employer to provide reasonably safe places and struct- 
 ures in or upon which the employee may work without 
 exposure to dangers not within the obvious scope of his em- 
 ployment ; ^ but the master does not guarantee the safety of 
 such places or structures, nor, it seems, in the case of a build- 
 ing is he obliged to keep it in a safe condition at every 
 moment of time dui'ing which the work is being done, when 
 such safety depends upon the proper performance of the work 
 by the employee and his fellow-workmen. Thus workmen, 
 including the plaintiff, under charge of a foreman, and em- 
 ployed by the owner through his superintendent, were engaged 
 
 1 Myers v. Hudson Iron Co., 150 Mass. 125. In Striugham v. Hilton, 
 111 N. Y. 188, the court stated, as a general proposition," that when an 
 appliance or machine obviously dangerous has been in daily use for a long 
 time, and has uniformly proved adequate, safe, and convenient, its use 
 may be continued without the imputation of imprudence or carelessness." 
 See Burke v. Witherbee, 98 N. Y. 562 ; Laflin v. Buffalo & Southwestern 
 E. R., 105 N. Y. 136. In Striugham a. Hilton, there appeared no ground 
 to suppose that the machine, or its appliances, had become impaired by 
 use, and it appeared that the machine was sufficient in its constructioa 
 and was of a kind commonly used for like purposes. In Myers d. Hudson 
 Iron Co., the court observe that while the rule stated in Stringham v. 
 Hilton might be Justified as an instruction adapted to the facts of that 
 case, it would be impracticable to express by a single formula a rule which 
 should govern the widely different circumstances of other cases. 
 
 ^ See §§ 111, 111 a, ante, notes and cases cited; Myhan ». Louisiana 
 Electric Light & Power Co., 41 La. Ann. 964. 
 
 * Smith ». Peninsular Car Co., 60 Mich. 501 ; Ryan v. Fowler, 24 N. Y. 
 410, and other cases cited § 194, ante. Where the servant was injured by 
 the caving in of a ditch being dug by the master to convey water-pipes for 
 a city, and it appeared that there were no supports or braces furnished 
 for the sides of the ditch, and experts testified that tliese were necessary 
 for its safe construction, it was held that the master was guilty of negli- 
 gence. Doyle V. Baird, 6 N. Y. Sup. N. E. Rep. 517 (1889). 
 
§§ 196-197.] employee's liabilitt. 391 
 
 in the erection of a building, with a cornice supported by 
 sticks of timber passing through the wall, — which was 
 thirteen inches thick, — and projecting sixteen inches, and to 
 be bricked up at the sides, and, finally, over the tops of the 
 timbers. When the wall had been laid to a level with, but 
 not over, the timbers, the foreman of the carpenters directed 
 the plaintiff to take a joist for the edge of the cornice, and to 
 push it out to the ends of the projecting timbers. In doing 
 this, the plaintiff stepped on the projecting part of one of the 
 timbers, which turned over, whereby he fell and was injured. 
 It was held that the owner of the building was not liable for 
 the injury.^ But where the danger arises from a defect in- 
 herent in the structure itself, and not existing by any act or 
 fault of the employee or his fellow-servants, and is such as the 
 employee has had no reasonable opportunity to detect, the 
 employer is responsible. Thus it was held that the owner of 
 a building in process of construction was liable to a carpenter 
 working on the roof who was injured by the falling of the 
 building caused by the walls being negligently built of in- 
 sufficient thickness.^ So if the material used in erecting scaf- 
 
 1 Armour v. Hahn, 111 U. S. 313. Gray, J., said: " The nsaal course 
 . . . was to pnt Uie timber in, and leave it in that way temponirily, and, 
 afterwards build the wall np over it. It is not pretended that the . . . 
 timber was in itself nnsonnd or nnsoitable for its purpose. If it was at 
 the time insecure, it was either by reason of the risks ordinarily incident 
 to the state of things in the unfinished condition of the building ; or else 
 by reason of some negligence of one of the carpenters or bricklayers, all 
 of whom were employed or paid by the same master, and were working in 
 the course of their employment at the same place and time, with an im- 
 mediate common object, the erection of the bnilding, and therefore, with- 
 in the strictest limits of the rule of law upon the subject, fellow-servants, 
 one of whom cannot maintain an action for injuries, caused by the neg- 
 ligence of another, against their common master." It is apprehended 
 that the decision of this case may well rest upon the former of the two 
 grounds stated by the court: but, as to the second ground stated, it is to 
 be observed that the later American authorities do not apply the English 
 doctrine of feUow-servant to relieve the master from liability, in cases in 
 which the injury has been caused by the failure of the master to supply 
 suitable means and appliances for doing the work, it being held that the 
 duty of the master in this respect is not to. be avoided by delegation. See 
 § 193, ante, notes and cases cited. 
 
 » Giles V. Diamond State Iron Co., 8 AtL Rep. 368 (DeL 1887). It is 
 
392 PERSONAL INJURIES. [CHAP. VII, 
 
 folding is bad, and the master knew it but directed the 
 material to be used, he is liable to his workmen, who, being 
 themselves in the exercise of due care, are thereby injured!^ 
 But if the workman ought to have detected the defect, or if 
 this was due to his own fault or, it is said, that of his fellow- 
 workmen,^ the master is not responsible.* It is negligence to 
 set a servant to work, without warning, in a place where the 
 master knows that he will be exposed to an infectious disease,* 
 or upon a roof which the master knows to be unsafe ; ^ or for 
 a railroad, without warning, to shunt detached and uncon- 
 trolled cars into a repair shop in which its employees are at 
 work.8 The duty of the master, as to furnishing safe places 
 and appliances, is held to be, not absolute, but relative.' Thus 
 the duty to provide a safe place does not impose upon the 
 master the duty of keeping such a place safe under all the 
 constantly changing conditions to which the performance of 
 certain kinds of work, such as the construction of a sewer, may 
 give rise, it not being reasonably possible to keep such work 
 
 held that one who hires an experienced carpenter to do work in an un- 
 finished buUding is not bound to furnish artificial lights to prevent his 
 wandering out of a regular passage-way and falling into a pitfall in an- 
 other room. Murphy v. Greeley, 146 Mass. 196. 
 
 1 Roberts v. Smith, 2 H. & N. 213; Benzing v. Steinway, 101 N. Y. 
 547 ; Behm v. Ormond, 58 Wis. 1. 
 
 2 But see § 193, ante, and notes. 
 
 » Dewey v. Park, 76 Mich. 631 ; Kimmer v. Webber, 151 N. T. 417 ; 
 Peffer v. Cutler, 83 Wis. 28; MoGorty v. So. N. E. Tel. Co., 69 Conn. 
 635. When a workman who was not a ship-carpenter or joiner, nor a 
 mechanic by trade, and who knew nothing about the construction of scaf- 
 folding, was put into the hold of a vessel by his employer, a ship-builder, 
 to remove the chips and rubbish undei-neath a scaffolding, it was held that 
 he had a right to rely upon the superior knowledge of his employer, and 
 upon the supposition that the latter had used reasonable care and pru- 
 dence in erecting the scaffold. Connolly v. Poillon, 41 Barb. 366. 
 
 ' Kleigel v. Aitkin, 94 Wis. 432. 
 
 ' Engstrom v. Ashland Co., 87 Wis. 166. Screwing down light and 
 easily broken sashes in windows adjoining fire-escapes in a factoiy, and 
 requiring them to be kept closed so as to maintain a high temperature 
 necessary to carrying on the works to be done there, is not negligence on 
 the part of the master. Huda v. American Glucose Co., 154 N. Y. 474. 
 
 » Doing V. New York, O. & W. R. R,, 151 N. Y. 579. 
 
 ' Reed v. Stockmeyer, 84 U. S. App. 727. 
 
§§ 197-198.] emploteb's liability. 393 
 
 safe at every place and at every moment.' And when the 
 work to be done is in a place necessarily dangerous, the obli- 
 gation as to safe places manifestly cannot apply ; '■' as where 
 the employee is working upon an unfinished railroad,^ or is 
 tearing down an insecure building.* In such cases the ordi- 
 nary doctrine of " employees' risk " must be taken to apply .^ 
 But the master will not, under any circumstances, be relieved 
 from tiie duty of exercising, as to the place in which the work 
 is to be done, a degree of care proportioned to the circum- 
 stances of danger.^ 
 
 '^O^ 
 
 § 198. Selection of Servants : General Rule. — As to the 
 measure of care to be required of the master in the selection 
 and employment of his servants in order to relieve him of 
 responsibility for injuries to one servant caused by the negli- 
 gence of another, the same general rule obtains which is 
 applied to fix the master's responsibility as to the structures 
 and appliances provided by him for the doing of his work ; 
 that is, if the incapacity or recklessness of an agent is known 
 to the master, or has existed so long, or under such circum- 
 stances, that he may reasonably be taken to have known it, he 
 will be responsible.^ In other words, the master is bound to 
 
 1 Minneapolis v. Luudin, 58 Fed. Eep. 525, 19 U. S. App. 245. 
 
 ' Finlayson v. Utica Mining Co., 32 U. S. App. 143 ; Kennedy v. Man- 
 hattan R. R., 145 N. T. 288; Petajau. Aurora Mining Co., 106 Mich. 463. 
 
 « Manning v. Chic. & W. M. R. R., 105 Mich. 260. 
 
 * Gulf, Colorado, &c. R. R. v. Jackson, 27 U. S. App. 519. 
 
 B See §§ 204 et seq., post. 
 
 « TVestem Coal & Mining Co. ». Ingraham, 36 U. S. App. 1 ; Mather 
 ». Rillston, 156 U. S. 391. 
 
 ' Gilman v. Eastern R. R., 13 Allen, 438; Snow v. Housatonic R. R., 
 8 Allen, 441. The master does not warrant the fitness of his servants. 
 Ormoud v. Holland, El. Bl. & El. 102 ; Tarrant v. Webb, 18 C. B. 797 ; 
 Beanlieu v. Portland Co., 48 Maine, 291 ; Wright r. New York Central 
 R. R., 25 N. T. 562 ; Faulkner v. Erie R. R., 49 Barb. 324; Columbus, C. 
 & I. C. R. R. V. Troesch, 68 111. 545. It is sufficient to charge the master 
 if he ought to have ascertained the incompetence of the servant hj the 
 use of reasonable diligence, Brickner n. New York Central R. R., 2 
 Lans. 508; Byron v. New York State Printing & Tel. Co., 26 Barb. 39; 
 Harper v. Indianapolis & St. L. R. R , 47 Mo. 567; Chicago, R. I. & Pac. 
 B. B. V. Doyle, 18 Kan. 58 ; but if he uses due diligence in this respect he 
 is not liable. Brown v. Maxwell, 6 HiU, 592 ; Toledo, Wabash & W. E. R. 
 
394 PBESONAL INJURIES. [CHAP. VII. 
 
 use reasonable care under the circumstances,^ but it is gener- 
 ally said that he is not bound to more than ordinary care.* 
 In cases in which it does not appear that the master was neg- 
 ligent in the original selection of the servant, he will gener- 
 ally be relieved from responsibility for isolated acts of 
 momentary carelessness on the part of the servant whereby a 
 fellow-servant is injured, since the master cannot reasonably 
 be taken to have anticipated such a dereliction of duty on the 
 
 V. Durkin, 76 111. 395; Coon v. Syracuse & Utica R. R., 5 N. Y. 492 ; 
 Brand v. Schenectady & Troy R. R., 8 Barb. 368, 383. So if the em- 
 ployer makes careful inquiry into the character and competency of his 
 employees, and believes them competent, he will not be liable for their 
 negligence. Sizer v. Syracuse, B. & N. Y. R. R., 7 Lans. 67; O'Donnell 
 V. Allegheny Valley R. R., 59 Penn. St. 239; Union Pacific R. R. v. 
 Milliken, 8 Kan. 647; Moss v. Union Pacific R. R., 49 Mo. 167; Balti- 
 more V. War, 77 Md. 593. In selecting employees the master has aright 
 to rely on the statements, as to their fitness, made by applicants for em^ 
 ployment; these being received and acted on in good faith by the master. 
 Stanley v. Chic. & N. W. R. R., 101 Mich. 202. The master has a right 
 to assume average intelligence, for his years, of a boy of eighteen. Roth v. 
 Barrett Co., 96 Wis. 615. It has been held that the fact that a foreman 
 was addicted to intoxication was not evidence that he was not fit for his 
 position, if his habits did not render him unfit when he was sober; it ap- 
 pearing that he was sober on the day when the injury complained of 
 occurred. Harrington v. New York Central & H. R. R. R., 4 N. Y. Sup. 
 N. E. Rep. 640 (1890), but see Baltimore & Ohio R. R. v. Henthome, 
 43 U. S. App. 113, as cited, post. It is held that when there is evidence 
 of incompetency on the part of the servant besides the act of negligence 
 which caused the injury, the appearance of the servant may be evidence 
 of incompetency, Keith v. New Haven & Northampton Co., 140 Mass. 
 175 ; but that the rule will be otherwise when the only evidence of in- 
 competency is the single act of negligence. Peaslee v. Fitchburg R. R., 
 152 Mass. 155. 
 
 1 Witte V. Hague, 2 Dow. & R. 33; Faulkner v. Erie R. R., 49 Barb. 
 324; Haskin v. New York Central & H. R. R. R., 65 Barb. 129; Kroy v. 
 Chicago, R. I. & Pac. R. R., 82 Iowa, 3.57; Strahlendorf v. Rosenthal, 30 
 Wis. 674; Rohback v. Pacific R. R., 43 Mo. 187; Thayer r. St. Louis, A. 
 & T. H. R. R., 22 Ind. 26; Chicago & Great Eastern R. R. v. Harney, 28 
 Ind. 28 ; Illinois Central R. R. v. Jewell, 46 111. 99. 
 
 2 Wiggett V. Fox, 36 E. L. & E. 486; Caldwell v. Brown, 53 Penn. 
 St. 453; Walton v. Bryn Mawr Hotel Co., 160 Penn. St. 3; Huntsinger 
 V. Trexler, 181 Penn. St., 497 ; Manville v. Cleveland & Toledo R. R.,'ll 
 Ohio St. 417. See Wabash R. R. v. MoDaniels, 107 U. S. 454, as cited, 
 infra. 
 
§ 198.] emploteb's liability. 395 
 
 part of a servant whom he had a right to believe faithful and 
 competent. Thus it was held that the owners of a steamship 
 were not liable for an injury which was caused by the engi- 
 neers negligently permitting the machinery to get out of 
 repair during a voyage, they having no reason to suspect the 
 engineer of carelessness or incompetence.^ It is clear that 
 what will amount to proper care in the selection of a servant 
 to perform a particular service, or in the retention of such a 
 servant, he having been employed, will in a large part depend 
 upon the nature and responsibility of such service. The 
 greater the danger to be apprehended from the neghgence or 
 incompetence of the servant, the greater care is to be exercised 
 in his selection or retention ; for example, a greater degree of 
 care may be required in the selection or retention of a locomo- 
 tive engineer, than of a fireman,^ and it is negligence to retain a 
 drunken engineer, the company knowing, or having reason 
 to know, his habits.^ So it was held, since tlie same degree 
 of care which a railway company should take in providing and 
 maintaining its machinery must be observed in selecting and 
 retaining its employees, that ordinary care on its part implies, 
 as between it and its employees, not simply the degree of dili- 
 gence which is customary among those intrusted with the 
 management of railroad property, but such as, having respect 
 to the exigencies of the particular service, ought reasonably 
 to be observed.* Upon the general subject it may be said that 
 the duty of the master to the servant is to be affirmatively 
 and positively fulfilled, and it is said that it is his duty to 
 keep himself informed of the continuing fitness of his sei-- 
 vants.^ It is not enough that the master selects agents of 
 approved skill and fitness, and confers upon them the power 
 of selecting and purchasing materials and hiring workmen, 
 since his duty in this respect cannot be avoided by delega- 
 
 1 Searle v. Lindsay, 11 C. B. (n. s.) 429, and see Tarrant v. Webb, 18 
 C. B. 797. 
 
 « See Northern Pacific R. R. v. Mares, 123 U. S. 710, 719. 
 « Baltimore & Ohio R. R. v. Henthome, 43 U. S. App. 113. 
 
 * Wabash R. R. v. McDaniels, 107 U. S. 454, opinion by Harlan, J. 
 
 * Baltimore & Ohio R. R. v. Henthome, 48 U. S. App. 113. See § 200^ 
 post. 
 
396 PERSONAL INJURIES. [CHAP. VII. 
 
 tion.* If the agent carelessly places by the side of the ser- 
 vant another, unskilled and incompetent, and damage results 
 to the servant in consequence, the master is liable ; and this 
 is so whether the incompetence or want of skill of the fellow- 
 servant existed when he was hired, or has come upon him 
 since, and he has been continued in the service with notice or 
 knowledge, or the means of knowledge, on the part of the 
 master, of the incompetence or unskilfulness.^ Whether the 
 master is negligent in his selection of servants, or of a suffi- 
 cient number of them to do the work safely, is generally a 
 question of fact.^ 
 
 § 199. Same Subject : Burden of Proof : Presumptions. — In 
 conformity to the general rule heretofore stated, it is held 
 that the burden to show that the master has employed incom- 
 petent or unsuitable servants, knowing them to be such, is 
 upon the plaintiff;* and as tending to prove the incompetence 
 of the servant whose alleged negligence was the cause of the 
 injury complained of his specific acts of negligence or want 
 of skill may be shown.^ So general reputation of unfitness 
 will be admissible in evidence, and may be sufficient to 
 charge the employer with knowledge of the employee's in- 
 capacity, notwithstanding he may have been, in fact, ignorant 
 of it; for ignorance will be negligence in cases in which 
 
 I Donnelley v. Granite Co., 90 Maine, 110 ; Northern Pacific R. R. v. 
 Herbert, 116 U. S. 642; Mann «. Delaware & Hudson Canal Co., 91 
 N. Y. 495, and see § 193, ante, and cases cited. 
 
 " Laning v. New York Central R. R., 49 N. Y. 521, opinion by Folger, 
 J., explaining and limiting Wright v. New York Central R. R., 25 N. Y. 
 562. 
 
 * Harrington v. Kansas City Cable Co., 60 Mo. App. 223; Western 
 Stone Co. V. Whalen, 151 111. 472. 
 
 * See § 111, ante, and cases cited, and also Davis v. Detroit & Mil- 
 waukee R. R., 20 Mich. 105; Brothers v. Carter, 52 Mo. 372; Oilman v. 
 Eastern R. R., 10 Allen, 233; Wright ti. New York Central R. R., 25 
 N. Y. 562; Potts v. Port Carlisle Dock & R. R., 8 W. R. 524; Edwards v. 
 Brighton, &c. R. R., 4 F. & F. 531; Allen v. New Gas Co., 1 Ex. D. 251, 
 45 L. J. Ex. 668. 
 
 « Northern Pacific Railway ». Mares, 123 U. S. 710; Pittsburg, Fort 
 Wayne & Chicago R. R. v. Ruby, 38 Ind. 294, but see Frazier v. Pennsyl- 
 Tania R. R., 38 Penn. St. 104. 
 
§§ 198-200.] emploteb's liabiuty. 397 
 
 proper inquiry would have elicited sufficient information as 
 to the qualifications of the servant and the exercise of proper 
 prudence required that such inquiries should be made.^ The 
 servant has a right to assume that his employer has used due 
 care in the selection and employment of his fellow-servants ; 
 and the question whether in any case it was the duty of the 
 injured servant to refuse to work with a negligent fellow-ser- 
 vant is a question for the jury, considering the circumstances.^ 
 If he continues his employment, knowing the incompetency 
 or carelessness of his fellow-servant, he cannot recover unless 
 he had reason to believe that within a reasonable time the 
 incompetent servant" would be discharged or placed in a posi- 
 tion where he could not injure the plaintiff.^ 
 
 § 200. Same Sabject: Direct Personal Supervision of XSm- 
 ployees not required, semble. — It is generally held that the 
 law does not require of the master, at least in the absence of 
 circumstances which ought to put him upon inquiry, any spe- 
 cial supervision of his employees directed to the prevention 
 of accidents to others caused by the carelessness of such ser- 
 vants in doing their work.* Thus it was held that, although 
 it is the duty of a railway company to exercise all reasonable 
 care in procuring sound machinery and faithful and compe- 
 tent employees, and although it is liable to its servants for 
 the neglect of this duty, yet, after it has procured such 
 machinery and employees, it is not liable to a servant for 
 injuries occasioned by the neglect of any of his co-servants 
 employed in the same general business of operating the road, 
 even although such negligent servant is of superior grade to 
 the injured servant^ It is clear that the rule thus expressed 
 must exclude, as between the master and his employees, the 
 
 1 Gilman t;. Eastern R. R., 10 Allen, 233; Davis v. Detroit & Milwau- 
 kee R. R., 20 Mich. 105. 
 
 > See cases cited supra, and also Northern Pacific Railway Ca v. Mares, 
 123 U. S. 710 ; Union Pacific R. R. v. Fort, 17 WaU. 553, 557. 
 
 » Laning v. New York Central R. R., 49 N. T. 521; Haskin v. New 
 York Central & H. R. R. R., 65 Barb. 129; Fra2der v. Pennsylvania 
 S. R., 28 Penn. St. 104; Wiggins Ferry Go. v. Blakeman, 54 HI. 201. 
 
 * See §§ 192, 198, ante, notes and cases cited. 
 
 c Hard o. Vermont & Canada R. R., 32 Yt. 473. 
 
398 PERSONAL INJUEIE3. [CHAP. VIL 
 
 application of a similar rule to that heretofore stated as being 
 held in the later American cases, which makes it the duty of 
 the master not only to furnish safe and adequate machinery 
 and appliances for the doing of the work, but also to exercise 
 a cautious supervision to see that such machinery and appli- 
 ances remain safe and suitable for the purpose, for which they 
 were furnished.^ It is believed that an analogous rule has 
 not been applied in respect of the master's duty of super- 
 vision over his employees; and it is apprehended that in 
 most cases ordinary care requires of him only that he exer- 
 cise, in the first instance, a prudent discretion in selecting his 
 servants, and cease to employ them when his attention has 
 been called to their imprudence or incompetence; as, for 
 example, by the complaints of their fellow-servants.^ The 
 reason of the distinction between the two classes of cases 
 would seem to be that, having selected prudent servants, the 
 master has a right to suppose that these will act in the em- 
 ployment as intelligent agents ; and, further, since in the 
 case of an injury caused by negligence the law looks to find 
 the last negligent act in the chain of causation, done by an 
 intelligent agent, the negligent act of the servant which 
 directly causes the injury is to be taken for the proximate 
 cause of such injury.^ It would seem clear, however, that if 
 the neglect of the master to see that the machines or appli- 
 ances are in proper order is a moving cause of the accident, 
 although the negligence of the servant may also have been a 
 contributing cause, the master may be liable, since the master 
 cannot avoid responsibility by delegating It.* It is clearly 
 negligence for the master to employ an insufficient number 
 
 ^ See § 193, ante, notes and cases cited. 
 " See § 212, post. 
 
 * See § 100, ante, notes and cases cited. 
 
 * See §§ 192, 193, ante, 201, post, and cases cited; Ford w. Fitchbnrg 
 B. R., 110 Mass. 240. A diSerent role seems to be implied in Hard v. 
 Vermont & Canada R. B., supra. In that caae, which was an action 
 brought for injuries to a railway employee, the accident was caused by the 
 negligence of a fellow-servant, conjoined with a defect in the locomotive 
 upon which the plaintiff was employed, and the court said that it was no 
 part of the duty of the corporation to inspect the condition of its 
 locomotives. 
 
§§ 200-201.] employer's liability. 399 
 
 of servants to do the work safely,^ or to retain in his 
 employment an incompetent servant after notice of his 
 incompetence.^ 
 
 § 201. Contributing Negligence of Fellow-servant not to bar 
 Recovery : Negligence of Third Persons. — From the application 
 of the general rule heretofore stated, that a person injured hy 
 the fault of another, without which fault the injury could not 
 have ocemTed, is not to be deprived of his remedy because the 
 fault of another person not in privity with him also contributed 
 to the injury,* it follows that if a master sete his servant to 
 work in an unsafe plaee ; * or in a dangerous employment with- 
 out providing for the servant's protection such safeguards as 
 reason and common experience have shown to he necessary 
 for that purpose, the master will remain responsible for his 
 negligence in this respect, although the negligence of the 
 plaintiff's fellow-servant contributed to produce the injurious 
 result.^ And this is so, although the injury is the joint result 
 
 1 Thus it was held that the fact that a defendant raUroad employed 
 hut one brakeman ou a train of ten loaded cars, while running down a 
 heavy grade, was a circumstance tending to show negligence in an action 
 for injuries hrought by another employee against the corporation. Gleorgia 
 Pacific R. R. V. Propst, 7 So. Rep. 635 (Ala. 1890). But an employee 
 continuing to work, knowing that the number of hands furnished to do 
 the work is insufficient, takes the risk of injury. Richmond & D. R. K. 
 c. Mitchell, 92 Ga. 77; Richmond & D. R. R. v. Worley, 92 Ga. 84. 
 
 * Senior v. Ward, 28 L. J. Q. B. 139, and see cases cited in §§ 198, 
 199, ante. 
 
 ' See § 103, ante, and cases cited. 
 
 * Northwestern Fuel Co. v. Danielson, 57 Fed. Rep. 915, 6 C. C. A. 
 636, and see Little Rock & M. R. R. v. Moseley, 56 Fed. Rep. 1009, 6 C. 
 C. A. 225 ; Union Pacific R. R. v. Callaghan, 56 Fed. Rep. 988, 6 C. C. 
 A. 205. 
 
 6 Cayzer v. Taylor, 10 Gray, 274 ; Holden v. Fitchburg R. R., 129 
 Mass. 268, 276; Fordo. Fitchburg R. R, 110 Mass. 240; Morrissey v. 
 Hughes, 65 Vt. 533 ; Houston & T. 0. R. R. c. Lowe, 11 S. W. Rep. 
 1065 (Tex. 1889) ; Searle i'. Lindsay, 11 C. B. sr. s. 429 ; Terre Haute & 
 Lid. R. R. V. Mansberger, 24 U. S. App. 551 ; Hankins v. New York, L. 
 E. & W. R. K, 142 N. r. 416 ; McDonald v. Mich. Cent. R. R., 108 Mich. 
 7; Irmer v. St. Louis Brewing Co., 69 Mo. App. 17; Deweese ». Meramec 
 Iron Mining Co^ 128 Mo. 423; Norfolk & Western R. R. v. Nuckol, 91 Va. 
 193; San Antonio & Aransas Pass. R. B. v. Harding, 11 Tex. Civ. App. 
 497; Galveston, H. & San A. R. R. ». Sweeney, 14 Tex. Civ. App. 216, 
 
400 PEBSONAL INJURIES. [CHAP. VII. 
 
 of the negligence of a servant of the master, not a fellow-ser- 
 vant of the plaintiff, and of the fault of a fellow-servant.^ 
 When in the course of an employment the acts of third per- 
 sons, not employed by the master, may render the service 
 more dangerous, and such acts and their character are under- 
 stood by the servant, and to his knowledge are not under the 
 supervision of the master ; the latter will not be responsible 
 for the injurious results of such acts.^ But it is apprehended 
 that the servant will not, in such cases, assume the absolute 
 risk of injury ; but that the fact of his continuing to work 
 under such conditions will bear upon the question of his 
 contributory negligence.^ 
 
 SECTION n. 
 
 TO INSTRUCT EMPLOYEE. 
 
 § 202. Generally : Illustrations of the Rule — Since it is the 
 duty of the master to use due diligence to see that the servant 
 is not exposed to unnecessary risks in the course of his em- 
 ployment, he is bound, before an employee is put in charge of 
 dangerous machinery with which he is not acquainted, to in- 
 struct and qualify him for his duty ; * and so, if the employee 
 
 and see cases cited § 198, ante. When several concurring causes contribute 
 to an accident, and each is an efficient cause, without the operation of 
 which the accident could not have happened, it may be attributed to any 
 or all of the causes; but it cannot be attributed to a cause unless without 
 its operation the accident would not have happened. Ring v. Cohoes, 77 
 N. Y. 83, and see §§ 97-100, ante, notes and cases cited. 
 
 1 Coppins V. New York Central & Hudson River R. R., 48 Hun, 292; 
 Cincinnati, H. & D. R. R. v. MoMuUen, 117 Ind. 439. 
 
 2 Hardy v. Shedden Co., 47 U. S. App. 362. 
 » See§ 207 etseq., post. 
 
 * Brennan v. Gordon, 118 N. Y. 489 ; Fredenburg v. Northern Central 
 R. R., 114 N. Y. 582 ; Connolly v. Poillon, 41 Barb. 366 ; Thall v. Camie, 
 5 N. Y. Sup. N. E. Rep. 244 (1889) ; Piggott v. Hanchett, 8 N. Y. Sup, 
 N. E. Rep. 731 (1890) ; Noyes v. Smith, 28 Vt. 59 ; Cleveland RoUing 
 Mill Co. V. Corrigan, 46 Ohio St. 283; Missouri Pacific R. R. v. Call- 
 breath, 66 Tex. 526 ; Union Pacific R. R. v. Fort, 17 Wall. 553; Sullivan 
 V. India Manuf 'g Co., 113 Mass. 396 ; Rummel v. Dilworth, 131 Penn. St. 
 509 ; Chicago & Northwestern R. R. v. Ward, 61 lU. 130 ; McDougaU v. 
 
§§ 201-202,] emploteb's liability. 401 
 
 be set to work in a dangerous place, he being not acquainted 
 with the danger, and this not being obvious to ordinary in- 
 spection.^ And if the master delegates a fellow-servant of the 
 employee to instruct and qualify the latter for the dangerous 
 service, he is bound to select a competent instructor, and he 
 will be liable for the incompetence, forgetfulness, or negli- 
 gence of the instructor, if by reason of it the employee suffers 
 injury.^ In such a case it is not a defence that the injury 
 to the employee was caused by the negligence of his fellow- 
 servant ; for the master's servant who instructs the employee 
 stands, for this purpose, in the place of the master, and the 
 latter is liable for his default.** It is the duty of the master 
 to inform his employee of the existence of any suddenly oc- 
 curring danger or defect, of which the master is or ought to 
 
 Ashland Co., 97 Wis. 382 ; Emma Cotton Seed Oil Co. v. Hale, 56 Ark. 
 232; Pullman Palace-Car Co. v. Harkins, 5 C. C. A. 326; Bohn Manuf'g 
 Co. V. Erickson, 5 C. C. A. 341. 
 
 1 Lofrano v. New York & Mt. Vernon Water Co., 55 Hun, 452 ; Nadau 
 V. White River Lumber Co., 76 Wis. 120; Roth u. Northern Pacific Lum- 
 bering Co., 18 Or. 205 ; Missouri Pacific R. R. v. White, 76 Tex. 103; 
 Myhan v. Louisiana Electric Light & Power Co., 41 La. Ann. 964; Ala- 
 bama &c. Co. V. Pitts, 98 Ala. 285. 
 
 2 Flike V. Boston & Albany R. B., 53 N. Y. 549 ; Panlmier v. Erie R. 
 R., 34N. J. L. 151; Wheelers. Wason Manuf'g Co., 135 Mass. 294; 
 Bjbjian v. Woonsocket Rubber Co., 164 Mass. 214 ; La Fortune v. Jolly, 
 167 Mass. 170 ; Gerrish v. New Haven Ice Co., 63 Conn. 9 ; Lebbering v. 
 Struthers, 157 Penn. St. 312; Devitt v. Union Pacific R. R., 50 Mo. 302; 
 Williams v. Clough, 27 L. J. (n. s.) Ex. 325. 
 
 8 Brennan u. Gordon, 118 N. Y. 489; Mann v. Delaware & Hudson 
 Canal Co., 91 N. Y. 500; Longhlin v. State, 105 N. Y. 159 ; Union Pacific 
 R. R. V. Fort, 17 Wall. 553. In Yeaton v. Boston & Lowell R. R., 
 135 Mass. 418, the duty of instructing the employee having been delegated 
 to the defendant's foreman, the court said : " If there was a neglect . . . 
 to give . . . information to the plaintifi by one upon whom the duty has 
 been devolved by the master, such neglect is to be treated as that of a 
 fellow-servant," and it was held that, on this ground, the plaintiff could 
 not recover. The doctrine held in this case seems to be opposed to the 
 general tenor of authority, and to the opinion of the same court in Wheeler 
 V. Wason Manuf'g Co., 135 Mass. 294, as cited above. See, also, Avilla v. 
 Nash, 117 Mass. 318; Durgin v. Munson, 9 Allen, 396 ; Holden v. Fitch- 
 burg R. R., 129 Mass. 268; Myers u. Hudson Iron Co., 150 Mass. 125; 
 Rogers v. Ludlow Manuf'g Co., 144 Mass. 198, 202, as cited § 193, ante; 
 Union Pacific R. R. v. Fort, 17 Wall. 553, 559, as cited § 207, post. 
 
 26 
 
402 PERSONAL INJURIES. [CHAP. VII. 
 
 be informed, but of which the employee is ignorant, as when 
 an essential change is made in a dangerous machine, without 
 the knowledge of the servant.^ So the employee has a right 
 to rely upon the warnings and signals customarily given in the 
 conduct of the business, and if the master fail to give these he 
 is negligent.^ But it is not the master's duty to give warning 
 of dangers of which the employee is, or ought to be, informed.* 
 The question whether the master is to be charged with con- 
 structive notice of the existence of a defect or danger is, in 
 doubtful cases, one of fact ; and the burden to show notice, 
 actual or constructive, is upon the plaintiff.* It is to be ob- 
 served that there is a class of cases in which it is a duty of the 
 master properly to instruct the servant, not only to secure the 
 safety of the latter, but to protect the public from the injuries 
 which may result from the servant's want of skill. In such 
 cases failure to instruct the servant is negligence for which 
 the master is liable to third persons.^ Applying the general 
 rules stated, where the plaintiff, while at work for the de- 
 fendant, was injured by a bar of steel falling from a pile of 
 similar bars piled by his co-workmen, and there was no evi- 
 dence that the defendant's agents knew, or could have known, 
 of the defective piling, or that the defendant had been negli- 
 gent in the selection of his workmen, it was held that negli- 
 gence on the part of the defendant was not shown.^ But 
 
 ^ Ryan v. Chelsea Paper Manuf'g Co., 69 Conn. 454; Pullman Palace^ 
 Car Co. V. Laack, 143 111. 242. A printed notice posted in a factory that a 
 particular machine is dangerous, and that care must be used in operating 
 it, is notice of nothing except the dangers of a perfect machine, and con- 
 veys no warning of additional dangers caused by a break in the machine. 
 Blumenthal v. Craig, 53 U. S. App. 8. 
 
 2 Anderson v. Northern Mill Co., 42 Minn. 424; litis v. Chicago, M. 
 & St. P. R. R., 40 Minn. 273 ; Howard v. Delaware & Hudson Canal Co, 
 40 Fed. Rep. 195, and see § 152, ante, notes and cases cited. 
 
 ' Lehigh & Wilkes-Barre Coal Co. v. Hayes, 24 W. N. C. 559. 
 
 * Clongh V. Hoffman, 132 Penn. St. 626 ; O'Donnell v. Baum, 88 Mo. 
 App. 245 ; Oehme v. Cook, 7 N. Y. Sup. N. E. Rep. 764 (1890) ; Sherman 
 V. Menomenee River Lumber Co., 77 Wis. 14 ; Central R. R. & Banking 
 Co. V. Kent, 84 Ga. 351 ; Rummel v. Dilworth, 111 Penn. St. 343, 131 
 Penn. St. 509. 
 
 * See §§ 38, 113, 118, ante, and also Lannen v. Albany Gas Light Co., 
 44 N. Y. 459. 
 
 6 Nash V. Nashua Iron & Steel Co., 62 N. H. 406. 
 
§ 202.] employee's uabilitt. 403 
 
 where a pile of sleepers had been left too near the track of 
 the defendant's railroad, and the defendant's brakeman was 
 thereby injured, and the evidence was conflicting as to the time 
 during which the pile had been there, the question of the de- 
 fendant's negligence was left to the jury.^ A night oiler em- 
 ployed by an electric light company was instantly killed, while 
 in the discharge of his duty, by coming in contact with wires 
 on or near the floor of the dynamo-house. It appeared that 
 the company had been notified of the dangerous arrangement 
 of the wires, and that the safer way would be to run them on 
 the ceiling. It did not appear that the deceased had been 
 told by the company's agents of the dangerous character of 
 the wires among which he had to move, or that he understood 
 the danger. It was held that the company was liable for his 
 death, and the court stated the law applicable to the case in 
 substance as follows : A master who carries on an extraor- 
 dinarily dangerous undertaking, such as the generation and 
 distribution of electricity, is bound to know the character and 
 extent of the danger, and to notify the same to the servant 
 specially and unequivocally, so as clearly to be understood by 
 him. The absence of actual knowledge is no exculpation ; the 
 servant is not required to know latent but only patent defects, 
 and he has a right to assume superior knowledge in his em- 
 ployer, to rely on his prudence and judgment, and to believe 
 that he will not, unnecessarily, expose the employee to danger .^ 
 The fact that a servant was ignorant that he had a malady 
 which as to him rendered certain labor dangerous, and that 
 his master knew that he had such malady, is not sufficient to 
 charge the master with negligence in setting the servant to do 
 such work, unless it also appear that the master knew that 
 the servant was ignorant that he had such malady.* As the 
 real question in tliis class of cases always is whether the 
 defendant was negligent in failing properly to instruct his 
 servant, it is apprehended that ordinary rules are to be ap- 
 plied in determining it ; that is, the question will be one of 
 
 1 Babcock V. Old Colony R. R., 150 Mass. 467. 
 
 * Myban v. Louisiana Electric Light & Power Co., 41 La. Ann. 964. 
 See comments on this case in Townsend v. Langles, 41 Fed. Bep. 919. 
 » Crowley v. Appleton, 148 Mass. 93. 
 
404 PERSONAL INJURIES. [CHAP. VII. 
 
 fact, unless the facts in evidence be undisputed and conclusive 
 so as to justify the court in directing a verdict in accordance 
 therewith.^ In determining whether in any case the instruc- 
 tions were sufficient, the jury are to take into consideration 
 the youth, inexperience, degree of mental capacity, or other 
 circumstances known, or which ought to have been known to 
 the master, and bearing upon the question of the employee's 
 ability to understand his employment and the dangers at- 
 tending it.2 
 
 § 203. Qualifications and Limitations of the Rule : Infant Em- 
 ployees. — In the absence of circumstances to put him upon 
 inquiry, the master has a right to assume that his employee 
 is possessed of ordinary intelligence, and that he knows those 
 facts of common experience with which persons of his age 
 and capacity are generally familiar.^ Thus while the fact 
 that the employee is an infant makes it the duty of the master, 
 generally, to exercise a greater measure of care in setting him 
 about his employment than would be required in the case of 
 an adult workman set to do the same work, yet the employer 
 is not bound to instruct the employee, merely because he is 
 an infant.* It is said : " In hiring a boy twelve years of age, 
 
 ^ Neilon v. Marinette & M. Paper Co. , 75 Wis. 579 ; Ciriaok v. Mer- 
 chants' Woolen Co., 151 Mass. 152 ; Ogley v. Miles, 8 X. T. Sup. N. E. 
 IRep. 270 (1890). 
 
 ^ Coombs V. New Bedford Cordage Co., 102 Mass. 572 ; O'Connor v. 
 Adams, 120 Mass. 427 ; Hanson v. Ludlow Manuf g Co., 162 Mass. 187 ; 
 Hickey v. Taaffe, 105 N. Y. 26, 36 ; Jones v. Florence Mining Co., 66 
 Wis. 268 ; Ogley v. Miles, 8 N. Y. Sup. N. E. Kep. 270 (1890). 
 
 ' King V. Boston & Worcester R. R., 9 Cush. 112; Coombs v. New 
 Bedford Cordage Co., 102 Mass. 572, 585 ; Sullivan v. India Manuf'g Co., 
 113 Mass. 396; Richstain v. Washington Mills Co., 157 Mass. 538; De 
 Grafi V. New York Central & H. R. R. R., 76 N. Y. 125; Hickey v. 
 Taaffe, 105 N. Y. 30 ; Chicago Brick Co. v. Reinneiger, 140 111. 334. 
 
 * Ciriack v. Merchants' Woolen Co., 151 Mass. 152. But where a boy 
 twelve years old was of less than the average intelligence of boys of that 
 age, which fact the employer knew, and the employer sent him, in haste, 
 into the close neighborhood of dangerous gearing, in an illy lighted place, 
 he having worked in sight of, but not upon, the dangerous machine, be- 
 fore, it was held that the que.stion of the employer's negligence was for 
 the jury. Ibid. See Crowley v. Pacific Mills, 148 Mass. 228; Glover v. 
 Dwight Manuf'g Co., 148 Mass. 22; Probert u. Phipps, 149 Mass. 258; 
 
§§ 202-203.] employer's liability. 405 
 
 and apparently of average intelligence, an employer is not 
 called upon to tell him that if he holds his hand in the fire 
 it will be burned, or strikes it with a sharp instrument it will 
 be cut, or thrusts it between the teeth of a revolving cog-wheel 
 in the gearing of a mill it will be crushed. Fi-om infancy, 
 and through childhood, as well as in later life, we are all mak- 
 ing observations and experiments with material substances, 
 and every person of ordinary faculties acquires knowledge, at 
 an early age, of those familiar facts which force themselves 
 on our attention through our senses." ^ Nor is the master 
 bound to instruct an infant to avoid dangers into which there 
 is no reason to suppose he will fall. Thus where an infant 
 working over machinery accidentally slipped, and in order to 
 save himself from falling threw out his hand, which was 
 caught between a pair of cog-wheels, which, in the discharge 
 of his duty, he was not obliged to touch, nor to approach 
 nearer than nine inches ; it was held that the master was not 
 liable for the injury on account of his failure to caution the 
 plaintiff against such an accident.^ And, whether the em- 
 ployee be an infant or an adult, his master is not bound to 
 instruct him as to the dangers of the work when these are not 
 extraordinary and the employee, being of ordinary intelligencCj 
 has had a sufficient opportunity to become familiar with them, 
 or has been sufficiently instructed elsewhere, or by some one 
 else.^ If the employee is so young that, even after full in- 
 
 § 201, ante. So an infant of tender years may recover from his master 
 for injuries received from machinery which his master negligently ordered 
 him to oil, and the dangerous nature of which he could not understand 
 even if he used due care according to his years. Hinckley v. Horaz- 
 dowsky, 133 111. 359. 
 
 1 Ciriack v. Merchants' Woolen Co., 151 Mass. 152. See Euchinskey 
 V. French, 168 Mass. 68. 
 
 » Buckley v. Gutta Percha & Rubber Manuf'g Co., 113 N. Y. 540. 
 See Connolly ». Eldredge, 160 Mass. oG6. Where the plaintiff, a brake- 
 man, was but sixteen years of age, it was held that the defendant must 
 show, in order to avoid the imputatiou of negligence, that the plaintiff 
 possessed the capacity and experience to do the work required of him in 
 safety, although there was otherwise nothing in the case to show that the 
 defendant was negligent. Gulf, C. & S. F. R. R. v. Jones, 76 Tex. 350. 
 
 * East & West R. R. ■/. Sims, 80 Ga. 867 ; Neilon v. Marinette & M, 
 Paper Co., 75 Wis. 579; Prentiss v. Kent Furniture Manuf'g Co., 63 
 
406 PERSONAL INJURIES. [CHAP, VII. 
 
 structions, he whoUj fails to understand them or to appreciate 
 the danger of the employment, then he is too young to be set 
 at such an employment, and the employer puts or keeps him 
 at such work at his own risk.^ The questions whether the 
 infant employee was of sufficient age, judgment, and capacity 
 to do the work upon which he was employed, and whether the 
 instructions given him by his master were reasonably suffi- 
 cient, are ordinarily for the jury.^ 
 
 SECTION m. 
 
 OP THE DOCTRINE OP EMPLOYEE'S BISK. 
 
 § 204. General Rule. — By the common law, it is a part of 
 the implied contract between the employer and the employee 
 that the latter assume the ordinary risks of the employment, 
 which are apparent, and which he has the opportunity to de- 
 tect.3 The principle is that where the servant has as good an 
 
 Mich. 478 ; Gordon v. Reynolds Card Manuf 'g Co., 47 Hun, 278 ; Conllard 
 V. Tecnmseh Mills, 151 Mass. 85 ; Whitelaw v. Memphis & Charleston 
 K. K., 16 Lea, 391 ; Evans v. American Iron & Tube Co., 43 Fed. Rep. 
 519. The master is bound to instruct, for a reasonable time, one whom 
 he selects to run an elevator, such person being without experience in 
 such employment. Brennan v. Gordon, 118 N. Y. 489. It was held to 
 be negligence to set a girl thirteen years old to run and clean a spinning- 
 frame in a cotton factory without instructing her how to do the work. 
 Glover V. Dwight Manuf Ig Co., 148 Mass. 22. 
 
 1 Hickey v. TaafEe, 105 N. Y. 26, 36. 
 
 ^ Hickey v. TaafEe, supra; Neilson v. Coal & Iron Co., 167 Penn. St. 
 256; Wynn v. City & Sub. R. R., 91 Ga. 344; Central R. R. v. Golden, 
 93 6a. 510, and see § 202, ante, and cases cited. 
 
 » Bohn V. Havermeyer, 114 N. Y. 296; Appel v. Buffalo, N. Y. & P. 
 R. R., Ill N. Y. 550; Odell v. New York Central & H. R. R. R., 120 
 N. Y. 323 ; Ryan v. Long Island R. R., 51 Hun, 607 ; Goltz v. Milwaukee, 
 L. S. & W. R. R., 76 Wis. 136; Smith v. Peninsular Car Works, 60 
 Mich. 501 ; Meizer v. Peninsular Car Co., 76 Mich. 94; Pederson v. Rush- 
 ford, 41 Minn. 289 ; Hoffman v. Clough, 124 Penn. St. 505 ; Carbine v. 
 Bennington & Rutland R. R., 61 Vt. 348; Nelling v. Industrial Manuf 'g 
 Co., 78 Ga. 260 ; Central R. R. o. Smith, 82 Ga. 236 ; South West Vir- 
 ginia Improvement Co. v. Andrew, 86 Va. 270; Buzzell v. Lacpnia 
 
§§ 203-204.] employee's liabilitt. 407 
 
 opportunity as the master to ascertain and avoid the danger 
 for himself, he will have no recourse against the master in 
 case he is injured thereby ; ^ and he accepts the employment 
 upon this implied condition.^ Inasmuch as the essence of the 
 negligence is a failure to take proper precautions against 
 danger and the risk of injury, it follows that, if the defendant 
 is negligent in this particular, the plaintiff who voluntarily 
 assumes the risk with a full understanding of it is negligent 
 
 Mannf'g Co., 48 Maine, 113; Indianapolis R. R. v. Love, 10 Ind. 554; 
 Fifleld V. Northern R. R., 42 N. H. 225 ; Byron v. New York Telegraph 
 Co., 26 Barb. 39; Mad River & L. E. R. R. v. Barber, 5 Ohio St. 541; 
 McGatrick v. Wason, 4 Ohio St. 566; Missouri Pacific R. R. v. Lehm- 
 berg, 75 Tex. 61 ; Easton v. Houston & T. C. R. R., 39 Fed. Rep. 65 ; 
 Townsend v. Langles, 41 Fed. Rep. 919 ; Watson v. K. & T. Coal Co., 52 
 Mo. App. 366; Foley v. Jersey City El. Light Co., 54 N. J. L. 411; 
 Beckman v. Consol. Coal Co., 90 Iowa, 352 ; Peterson v. Sherry Lumber 
 Co., 90 Wis. 83 ; Int. & Great North. R. R. v. Beasley, 9 Tex. Civ. App. 
 569; Foley v. Pettee Machine Works, 149 Mass. 294; Hatt v. Hay, 144 
 Mass. 186; Pratt v. Prouty, 153 Mass. 333; Tinkham v. Sawyer, 153 
 Mass. 485; De Souzav. Stafford Mills, 155 Mass. 476; Rood v. Lawrence 
 Manufg Co., 155 Mass. 590 ; Gleason v. New York & N. E. R. R. Co., 
 157 Mass. 68; Priestly v. Fowler, 3 M. & W. 1; Clarke v. Holmes, 7 H. 
 & N. 937. As expressed by Lord Coleridge, the rule is that entering into 
 the contract of service the servant contracts, as between himself and his 
 employer, to run those risks as part of the service for which he is to re- 
 ceive pay or reward. Rourke v. White Moss, &c. Co., 1 C. P. D. 556, 
 559, 46 L. J. C. P. 283. And having once entered into the employment, 
 he will be bound to perform aU the services necessarily incident to that 
 branch of the work which he has contracted to do, although at more or 
 less personal risk. GriflBths v. London & St. Kath. Docks Co., 12 Q. B. D. 
 493, 495, 13 Q. B. D. 259, 53 L. J. Q. B. 105. The servant is not bound 
 by his contract to undertake any service out of the line of the employment 
 for which he was hired, and if, at the master's order, he undertake such 
 a service, it being obviously dangerous, he assumes the risk of injury 
 thereby. Lax v. Mayor of Darlington, 5 Ex. D. 28, 49 L. J. Ex. 105 ; 
 Potts V. Plunket, 9 Ir. C. L. R. 290 ; Riley v. Baxendale, 30 L. J. Ex. 87; 
 Ogdra V. Rummens, 3 F. & F. 751. See § 207, post. 
 
 * Woodman v. Metropolitan District Railway, L. R. 2 Ex. D. 384; 
 Dynen v. Leach, 26 L. J. (s. s.) Exch. 221; Ogden v. Rummens, 3 F. & 
 F. 751 ; Haley v. Case, 142 Mass. 316 ; Monaghan v. New York Central 
 & H. R. R. R., 45 Hun, 113; Powers v. New York, L. E. & W. R. R., 98 
 N. Y. 274 ; Central R. R. & Banking Co. v. Dickson, 82 Ga. 629 ; McGlyna 
 V. Brodie, 31 Cal. 376. 
 
 * Seymour v. Maddox, 16 Q. B. 326. 
 
408 PERSONAL INJURIES. [CHAP. VII. 
 
 also.i And in determining whether the risks of the employ- 
 ment are obvious, and so to be assumed by the employee, the 
 question is not whether he has actually observed, and by a 
 conscious act of the will assumed the risks, but whether the 
 risks are incident to the employment, and are such as, having 
 regard to the age, intelligence, and experience of the employee, 
 he ought to have appreciated.^ The rule applies if the em- 
 ployee is a person of ordinary intelligence, although inexperi- 
 enced,* and although the negligence of the employer may 
 contribute to cause the injury complained of.* But the em- 
 ployee is not bound to anticipate, nor does he assume the risk 
 of injury from, extraordinary dangers ; ^ and he is not bound, 
 as matter of law, exactly to know and appreciate the risk of 
 the work in which he is engaged.* The question whether 
 the danger to which the employee was exposed was fairly to 
 be anticipated in the course of his employment, is, in doubtful 
 cases, for the jury,^ but where the uncontradicted testimony 
 shows that the danger was obvious and known to the servant, 
 the court may instruct the jury that he cannot recover.* 
 
 > Burgess v. Davis Sulphur Co., 165 Mass. 71. 
 
 ' Kenney v. Hingbam Cordage Co., 168 Mass. 278. 
 
 » Alexander v. Louisville & Nashville R. R., 83 Ky. 589. 
 
 * Balle V. Detroit Leather Co., 73 Mich. 158 ; Lord v. Pueblo Smelting 
 & Mining Co., 12 Col. 390. 
 
 * Smith V. Peninsular Car Works, 60 Mich. 501. Thus where an ac- 
 cident caused by a defective car occurred while the cars were moving 
 slowly, the fact that such an accident might have been anticipated, had 
 the cars been moving fast, though the car was in good order, does not 
 bring the accident within the ordinary risks of a brakeman's employment. 
 Goodrich v. New York Central & H. R. R. R., 116 N. Y. 398. It has 
 been held that the throwing of a barrel from a fourth-story window so as 
 to strike and kill a fellow-servant is not such an unforeseen and extraor- 
 dinary act of carelessness as not to come within the risks of the employ- 
 ment assumed by the deceased. Brodeur v. Valley Falls Co., 16 R. L 448. 
 
 * Lawless v. Connecticut River R. R., 136 Mass. 1; Ferren v. Old 
 Colony R. R., 143 Mass. 197. 
 
 ' Huddleston v. Lowell Machine Shop, 106 Mass. 286 ; Moore v. St. 
 Louis Wire Mill Co., 55 Mo. App. 491. 
 
 ' Anderson v. Clark, 155 Mass. 368 ; Seymour e. Maddox, 16 Q. B. 326. 
 Where a plaintiS, who was acting foreman in the yard of the defendant's 
 saw-mill, but had nothing to do with the machinery of the mill, was in- 
 jured by a defect in such machinery, it was held that he was not to be 
 
§ 204.] employee's liability. 409 
 
 Minors are ordinarily held to assume those risks of the em- 
 ployment which are obvious to them ; ^' but, in estimating the 
 risk, the minor is to be held only to that measure of care 
 which is reasonably to be expected in a person of his age and 
 capacity.^ Within certain limits, the law presumes that all 
 persons of ordinary intelligence have knowledge of the de- 
 structive forces in nature, and that, if their employment 
 exposes them to danger from such forces, they take the risk 
 of injury .8 Thus all men are taken to understand that fire 
 will burn, and water drown. But there are many facts of 
 science which do not come within the range of ordinary 
 knowledge ; and unless the employment itself teaches them, 
 the employee will not be taken to know them, nor be bound 
 to anticipate danger therefrom. Thus, where one was em- 
 ployed to remove hot slag from a furnace in close proximity 
 to water, it was held that he should not be presumed to know 
 that if the slag came into contact with the water a dangerous 
 explosion might follow.* 
 
 presumed to have known that the machinery waa dangerous. Sauhorn v. 
 Madera Flume & Trading Co., 70 Cal. 261. For a case in which it was 
 held that a plaintiff did not accept the risk of injury by the hoisting ma- 
 chinery of an elevator which he was employed to operate, he having been 
 engaged in such employment only six hours, see Eern v. De Castro & 
 Donner Sugar Ref. Co., 5 N. T. Sup. N. E. Kep. 548 (1889). 
 
 1 Zurn V. Tetlow, 134 Penn. St. 213; Rummel v. Dil worth. 111 Penn. 
 St. 343, 131 Penn. St. 509; Smith r. Irwin, 51 N. J. L. 507 ; Dunn v. 
 McNamee, 59 N. J. L. 498 ; Kaufhold v. Arnold, 163 Penn. St. 269 ; 
 Coins V. Chicago, R. I. & Pacific R. R., 37 Mo. App. 676 ; De Graff v. 
 New York Central & H. R. R. R., 76 N. Y. 125; ffickey v. Taaffe, 105 
 N. Y. 26 ; Sullivan v. India Manuf'g Co., 113 Mass. 396. 
 
 » McCarragher v. Rogers, 120 N. Y. 526 ; Smith v. Irwin, 51 N. J. L. 
 507 ; Brazil Block Coal Co. v. Gaffney, 119 Ind. 455. Under a statute 
 which provides that a person not an idiot shall be considered of sound 
 mind who has reached the age of fourteen, or, before that age, if he 
 knows the difference between good and evil, and that an infant under ten 
 shall not be considered guilty of any crime or misdemeanor, it was held 
 to be a question of fact whether a boy of thirteen was of sufficient discre- 
 tion to assume the risk of a dangerous employment. Rhodes v. Georgia 
 Railroad & Banking Co., 84 Ga. 320. 
 
 » Worlds ». Georgia R. R., 98 Ga. 288. 
 
 * McGowan v. La Plata Mining & Smelting Co., 3 McCrary, 393 ; and 
 see Myhan v. Louisiana Electric Light & Power Co., 41 La. Ann. 964, as 
 cited § 202. ante. 
 
410 PERSONAL INJUBIES. [CHAP. VH. 
 
 § 205. AppUcations of the General Rule. — It is obvious that 
 the positive risk assumed by the employee will be greater or 
 less, according as his employment is in its nature more or 
 less hazardous. Thus, an experienced machinist takes his 
 risk of being injured by dangerous machinery used in his 
 employment, although it might be made less dangerous by 
 covering it ; ^ and a machinist who, in the line of his duty, 
 undertakes to repair dangerous machinery, takes the risk of 
 being injured while making the repairs.^ And the rule is the 
 same although the plaintiff is an infanjt, if he have sufficient 
 intelligence to appreciate the risk of the work.^ Laborers en- 
 gaged in making excavations, the dangerous character of the 
 
 ^ Ladd V. New Bedford R. R., 119 Mass. 412; Goodnow v. Walpole 
 Emery Mills, ld6 Mass. 261 ; Foley v. Pettee Machine Works, 149 Mass. 
 294. Where the plaintiff, the driver of a fire engine, was injured while 
 engaged in driving the engine to a fire by reason of a defect in a street, it 
 was held that the defect was not within the class of risks which the plain- 
 tiff assumed when he entered into the employ of the fire department. 
 Coots V. Detroit, 75 Mich. 628 ; Palmer v. Portsmouth, 43 N. H. 265. 
 This is upon the ground that the relation of master and servant does not 
 subsist between a city and a member of its fire department. It is also said, 
 ija New Hampshire, that the principle applied in the case of servants of 
 railway companies 'yrho have sustained injuries in the course of their em- 
 ployment does not seem applicable to the case of injuries sustained from 
 defects in highways, since the liability in the latter case is statutory, 
 and no exception as to any class of persons appears, in favor of the munic- 
 ipality. Palmar v. Portsmouth, supra. So it is held that a policeman 
 does not, by the nature of his employment, assume risks incident to de- 
 fective sidewalks and highways. Galveston v. Hemmis, 73 Tex. 558, 
 Where the injury to the plaintiff was the result of the weak construction 
 of a scaffold, it was held that if the weakness was caused by the defend- 
 ant's following the advice or suggestion of the plaintiff (a carpenter) in 
 the building of the scaffold, the plaintiff could not recover. Blazinski v. 
 Perkins, 77 Wis. 9. 
 
 ^ Dartmouth Spinning Co. v. Achard, 84 Ga. 14. Assuming that if 
 the servant is asked generally to examine a machine and to repair it if he 
 can, the master is not at fault as to the servant by reason of any defect or 
 danger connected with the whole apparatus, yet if the servant is asked 
 only to repair a specific part of the mechanism, it may be the master's 
 duty to warn him of a danger not apparent, and due to the improper 
 working of some part of the apparatus distinct from that which he is 
 asked to repair. Martiueau v. National Blank Book Co., 166 Mass. 4. 
 
 s Gilbert v. Guild, 144 Mass. 601 ; §§ 203, 204, ante, and cases cited. 
 
§ 205.] employee's liabilitt. 411 
 
 labor being open to common observation, assume the risk of 
 injury ; ^ and so do workmen engaged in storing ice,^ or in de- 
 molishing buildings.^ If it is the normal condition of a floor 
 in a manufactory to be greasy and slippery by reason of oil 
 dripping from the machinery, the risk of injury from this con- 
 dition is one which an employee, working upon the floor, as- 
 sumes.* It is held that an employer is not bound to give 
 notice that a trap door in a passage-way in his mill used by 
 his workmen is open, out of working hours, to a workman who 
 knows of the existence of the trap door, and that it is likely 
 to be open at any time,^ but if the workman is ignorant of the 
 existence of such a door it seems that he does not assume the 
 risk.^ An employee assumes the risk of injury by wild ani- 
 mals, as elks and deer; kept by his employer, when he engages 
 to work inside the enclosure in which they are kept.^ One 
 working in a trench which he knows, or ought to know, to be 
 dangerous, assimies the risk of injury.* An employee on a 
 steamer assumes the ordinary risks involved in making dan- 
 gerous landings.^ The rule is often applied in the case of 
 injuries occurring to the employees of railway corporation.^" 
 
 1 McKinzie v. Philadelphia, 8 Pa. Co. Kep. 293 (1890) ; Vincennes 
 Water Supply Co. v. White, 124 Ind. 376; Griffin v. Ohio & M. R. R., 24 
 N. E. Rep. 888 (Ind. 1890); Larsson v. McClure, 95 Wis. 533. But 
 see Doyle v. Baird, 6 N. Y. Sup. N. E. Rep. 517, as cited, § 206, post. A 
 foreman in charge of men and teams of his employers, used in making 
 an excavation, who has seen one of the horses alleged to be vicious and 
 unruly, on the work for a week or more, takes the risk of injury by the 
 horse, it being his business to know the character of the horses used in 
 the work, and to send away such as are not fit for use. Smith v. Drake, 
 125 Penn. St. 501. 
 
 ^ Thorn V. New York City Ice Co., 46 Hun, 497. 
 
 ' Carey v. Sellers, 41 La. Ann. 500. 
 
 * Tinkham v. Sawyer, 153 Mass. 266 ; Murphy v. American Rubber 
 Co., 159 Mass. 266, and see Kleinest v. Kunhardt, 160 Mass. 230. 
 
 » Young V. MUler, 167 Mass. 224. 
 
 ' Hogarth », Pocasset Manuf'g Co., 167 Mass. 225. 
 
 » Bormann v. MUwaukee, 93 Wis. 522. 
 
 » Showalter v. Fairbanks Co., 88 Wis. 376. 
 
 « Red River Line v. Cheatham, 23 U. S. App. 19. 
 10 The travelling auditor of a railway company, whose duty it is to 
 travel on the company's cars from station to station on its roads, and to 
 audit accounts, is a serrantof the company ^d assumes the ordinary risks 
 
412 PERSONAL INJURIES. ■ [CHAP, VII. 
 
 Thus, it is held generally that trackmen or section hands as- 
 sume the risk of being run down by trains,* and it is said that 
 this is so even although such trains be carelessly run in the 
 dark.2 So one employed to make up trains in a railroad yard 
 assumes the ordinary risks of that employment ; but not the 
 risk of injury from cars sent into the yard at an excessive and 
 manifestly dangerous rate of speed.* A switchman assumes 
 the risk of unblocked frogs in switches.* The rule is applied 
 even if the proximate cause of the injury be such an accident 
 as is not expected often to occur, but which is fairly to be 
 anticipated as possible. Thus it has been held that injury 
 from the breaking of a rail is a risk to be assumed by a train- 
 man, such breaking not being the fault of the defendant rail- 
 road,* and so as to an injury caused by the throwing of an 
 
 incident to his employment. Minty v. Union Pacific R. R., 21 Pae. Rep. 
 660 (Idaho, 1889). 
 
 ' Larson v. St. Paul, M. & M. R. R., 43 Minn. 423; Adams v. Iron 
 Cliffs Co., 78 Mich. 271; Coombs v. Fitohburg R. R., 156 Mass. 220; Sul- 
 livan V. Fitohburg R. R., 161 Mass. 125; Hinz v. Chic, B. & N. R. R., 
 93 Wis. 16 ; Schaible v. Lake Shore & M. S. R. R., 97 Mich. 318; Ken- 
 nedy V. Pennsylvania R. R., 24 W. N. C. 371; McGrath v. New York & 
 New England R. R., 15 R. I. 95. Where the known rule of a railroad 
 company requires all trains to approach stations with great care, as ex- 
 pecting to find another train occupying the main track, the engineer 
 assumes the risk of his occupation, and is not entitled to notice that a 
 train in front of him is four hours late. Ulioois Central R. R. v. Neer, 
 26 111. App. 356. In Pennsylvania, the act of April 4, 1868 (P. L. 58), 
 provided that in the case of injury to any person, not an employee of the 
 company, rightfully employed about the roads, works, depots, and prem- 
 ises of a railroad company, the right of action against the company shall 
 be such only as would exist if such person were an employee. Under this 
 act it was held that the company was bound to exercise towards a team- 
 ster employed by a shipper in hauling freight for shipping, only that de- 
 gree of care which it owes to its employees, although, at the time of the 
 injury, the teamster was on the highway and crossing the tracks of the 
 company, which it was necessary that he should do in carrying out his 
 employment. Baltimore & Ohio R. R. v. Colvin, 118 Penn. St. 230. 
 
 2 Williams v. Delaware, L. & W. R. R., 2 N. T. S. Rep. 438 (1888). 
 
 8 Caron v. Boston & Albany R. R., 164 Mass. 523. See § 207, post. 
 
 * Illinois Central R. R. u. Campbell, 170 111. 163. 
 
 6 Pittsburg & W. R. R. v. McCombs, 18 Atl. Rep. 613 (Penn. 1889); 
 Devlin v. Wabash, St. L. & Pac. R. R., 87 Mo. 545 ; but compare Clapp 
 V. Minneapolis & St. L. R. R., 36 Minn. 6. 
 
§ 205.J employer's liabilitt. 413 
 
 engine from the track by animals getting thereon.^ So where 
 an employee employed on the road-bed was injured by being 
 struck on the head by a stick of timber projecting from a 
 passing car, the car having been improperly loaded, it was 
 held that this feU within the class of accidents which the 
 workman ought to anticipate ; ^ and so where the accident 
 was caused by the defendant's negligent failure to use " check- 
 reins" on its gravel cars, the plaintiff knowing that these 
 were not in use.^ A brakeman assumes risk of coupling and 
 uncoupling cars at cattle guards when these exist at intervals 
 all along the road.* But where an accident was caused to a 
 brakeman by the fact that he was engaged in coupling two 
 cars of different gauges, there being special danger in coup- 
 ling such cars, it was held that the plaintiff did not assume 
 the risk of the injury.^ As to the obligations of railroad cor- 
 porations in the construction of overhead bridges, the weight 
 of authority seems to favor the application of the general rule; 
 that is, the employee takes the risk of injury by coming in 
 contact with such bridges, if he knows that they are so low as 
 to be dangerous.^ The employee takes the risk of injury from 
 
 1 Mansden r. Eddy, 3 Tex. Civ. App. 148. 
 
 ^ Boyle V. New York & New England R. R, 151 Mass. 102; and see 
 Lothrop V. Fitchborg R. R., 150 Mass. 423. So as to injuries caused by 
 the accidental dropping of iron rails, handled in a careful and usual man- 
 ner. International & G. N. R. B. v. Tarrer, 73 Tex. 308. So, by what 
 would seem an extreme application of the mle, where an engineer was 
 injured by collision with a post which the railroad without his knowledge 
 had a few days before set as a support to an overhead bridge, and within 
 two feet from the position occupied by the engineer. Thain v. Old 
 Colony R. R., 161 Mass. 353, and see Austin r. Boston & Maine R. R., 
 164 Mass. 282; Penn. Co. v. La Rue, 53 D. S. App. 20. 
 
 ' Carr r. ^"orth River Construction Co., 48 Hun, 266. 
 
 * Fuller V. Lake Shore & M. S. R. R., 108 Mich. 690. 
 
 6 GottUeb V. New York, L. E. & W. R. R., 100 N. Y. 462. See also 
 Fay r. Minn. & St. L. R. R., 30 Minn. 231. 
 
 ' Gibson <;. Erie R. R., 63 N. Y. 449; Baylor v. Delaware, Lack- 
 awanna & W. R. R., 40 N. J. L. 23; Pittsburg & C. R. R. v. Sentmeyer, 
 92 Penn. St. 276; Baltimore & Ohio R. R. v. Strickler, 51 Md. 47; Devitt 
 r. Pacific R. R., 50 Mo. 302 ; Clark y. Richmond & Danville R. R., 78 Va. 
 709; Gusman v. Caffery Cent. ReiSneiy, 49 La. Ann. 1264. But see 
 Cleveland, C. C. & St. L. R. R. v. Walter, 147 HI. 60. In Gibson v. Erie 
 R. R., supra, the plaintiff's intestate was killed by coming in contact 
 
414 PERSONAL INJURIES. [CHAP, VII. 
 
 the incompetence of his fellow-employee, if he knows such 
 incompetence and still continues in his employment.^ 
 
 § 206. Employee does not assume Risk of Injury from Hidden 
 Defects. — It often becomes a question whether the danger, 
 exposure to which results in the injury to the employee, was 
 concealed or apparent; for if it be 'concealed, the employee 
 cannot be negligent in respect of it ; nor can he assume a 
 risk unwittingly .2 It is the duty of the master to see that 
 
 with the projecting roof of a depot-building, he knowing that it would 
 not admit of his standing upon the roof of the car without coming in con- 
 tact with it. See the case as cited § 208, post, and also Carbine v. Ben- 
 nington & Rutland R. R., 61 Vt. 348, as cited § 209, post. It has 
 however been held in Indiana, see Baltimore & C. R. R. v. Rowan, 104 
 Ind. 88, that accidents arising from collision with bridges built too low 
 for safety should form an exception to the general rule, since such bridges 
 are so dangerous as to make it probable that employees, even when in the 
 exercise of reasonable care, will be injured by coming in contact with 
 them. To the same effect, see Louisville, N. A. & C. R. R. v. Wright, 
 115 Ind. 378. But in a later case in the same State it is held that if a 
 railway employee knows that a bridge on the line of the road is defective 
 and unsafe, and continues to expose himself to the danger on the defend- 
 ant's trains, he assumes the risk of injury. Louisville, N. A. & C. R. R. 
 e. Sandford, 117 Ind. 265. 
 
 1 Kroy V. Chicago, R. L & Pao. R. R., 32 Iowa, 357; Mad River k 
 L. E. R. R. V. Barber, 5 Ohio St. 562; Brodeur v. Border City Mills, 16 
 R. L 448; Smith v. Sibley Manufg Co., 11 S. E. Rep. 616 (Ga, 1890); 
 Southern Pacific R. R. «. Burke, 13 U. S. App. 100; Texas & Pacific R. R. 
 V. Minnick, 13 U. S. App. 520; Texas & Pacific R. R. v. Rogers, 13 U. 
 S. App. 547; Union Pacific R. R. v. Novak, 15 U. S. App. 400; Louis- 
 ville & Nashville R. R. v. Kelly, 24 U. S. App. 103. Where the negli- 
 gence of the fellow-servant consisted in directing the plaintiff to drill out 
 a hole containing an unexploded cartridge it was held that the risk of 
 injury in doing this was one of the risks assumed by the plaintiff in the 
 scope of his employment, and that the master was not liable therefor, at 
 common law. Kenny v. Shaw, 183 Mass. 501. But in a later case, 
 brought under the Employers' Liability Act of 1887, a contrary rule was 
 held. Malcolm v. Fuller, 152 Mass. 160. 
 
 2 Mnrtaugh v. New York Central & H. R. R. R., 49 Hun, 456; Car- 
 penter 17. Mexican National R. R., 39 Fed. Rep. 315; Bohn Manufg Co. 
 V. Eriokson, 12 U. S. App. 260; Bannon v. Lutz, 158 Penn. St. 166; 
 Goldie V. Werner, 151 111. 551; Richlands Iron Co. v. Elkins, 90 Va. 249; 
 Burton v. Missouri Pacific R. R., 32 Mo. App. 455; Louisville, N. A. & 
 C. R. R* V. Buck, 116 Ind. 566; Columbia & P. S, R. R. v. Hawthorne, 
 
§§ 205-206.] employer's uabilitt. 415 
 
 the employee is not induced to work, supposing the machinery 
 with which or the place in which the work is to be done is 
 safe, when in fact it is not safe.^ In these cases the question 
 is in reality whether the employee was negligent, and so will 
 be left to the jury as a question of fact, when the testimony 
 is conflicting, or the conclusions to be drawn from it are 
 doubtful.* In determining whether the employee ought to 
 have ascertained the existence of the danger, ordinary rules 
 are to be applied, and the employee will be held only to that 
 degree of foresight which ordinary men might be expected to 
 use in like circumstances,^ and he has a right to assume that 
 the means and appliances furnished him for doing his work 
 are safe.* Nor is he bound to use the utmost conceivable 
 prudence when called upon to act suddenly, in a dangerous 
 emergency.^ Thus, it appeared that a defect in a brake, by 
 which an injury to the defendant's brakeman was caused, 
 could easily be seen by looking at it or attempting to handle 
 it ; but it did not appear that the brakeman had ever seen it 
 before the time of the accident, and it did appear that he had 
 only two or three minutes in which to determine whether to 
 use it, daring which time he was uncoupling cars, regulating 
 their movement, <fec. The brake could safely be used with 
 moderation, but under strong pressure was dangerous. It 
 was held that the question whether the brakeman knew of 
 the defect, and used the brake notwithstanding, was for the 
 
 3 Wash. Terr. 353; Anderson v. Minnesota & N. W. R. K., 39 Minn. 
 523; Magee v. Northern Pacific R. R., 78 Cal. 430; Gisson v. Schwa- 
 bacher, 99 Cal. 419; Lee v. South Pae. R. R., 101 Cal. 118; Pilling v. 
 Narragansett Machine Co., 19 R. I. 6G6. 
 
 1 Paterson v. Wallace, 1 Macq. 748. See Martineau v. National Bank 
 Book Co., 166 Mass. 4. 
 
 ^ Haddleston v. Lowell Machine Shop, 106 Mass. 286 ; Lynch v. Allen, 
 160 Mass. 249 ; Gibson v. Sullivan, 164 Mass. 557 ; Seymour v. Maddoz, 
 16 Q. B. 326. 
 
 » See § 150, ante. 
 
 * Eastman v. Curtis, 67 Vt. 432 ; Monmouth Mining Co. v. Erling, 
 148 m. 521 ; Carter v. Oliver Oil Co., 34 S. C. 215 ; Lasure v. Mannf g Co., 
 18 S. C. 281 ; Evans v. Chamberlain, 40 S. C. 104 ; Tex. & Pacific R. R. 
 V. Hohn, 1 Tex. Civ. App. 36; Fort Worth & D. City R. R. v. Wilson, 3 
 Tex. Civ. App. 583. 
 
 ' See §§ 143, 150, ante, and cases cited. 
 
416 PERSONAL INJUEIES. [CHAP. Til. 
 
 jury.^ The workman is not bound to know more of the nature 
 and character of his surroundings than ordinary ■workmen of 
 like grade in his situation may fairly be supposed to know ; 
 and where the plaintiff's knowledge of the dangerous charac- 
 ter of the work, and his means of acquiring such knowledge, 
 are not equal to those of the defendant, who personally super- 
 intends the work, the rule that the plaintiff assumes the risk 
 of the employment does not apply .^ 
 
 § 207. As to Defects 'which the Employee has an Opportnidty 
 to detect. — The authorities are not agreed upon the question 
 whether the employee assumes, absolutely, the risk of injury 
 from apparent defects in machinery or appliances which are 
 caused by the negligence of the master ; but it is believed that 
 the weight of modern authority is in favor of the rule that 
 such injuries are not to be included in the ordinary risks of 
 the employment, and that this rule is justified by sound 
 reason. It is to be considered that the contract between the 
 master and the employee is reciprocal, the obligation on the 
 part of the master being to furnish suitable and safe means 
 for doing the work ; and this obligation, independent of any 
 contract, rests as well on the duty, which every member of 
 the community is under, not to expose to unnecessary danger 
 another who comes upon his premises by his procurement to 
 transact business with or for him.^ And it has been held, in 
 well-considered cases, that this duty of the master is absolute 
 and not to be avoided by delegation.* On his part, the ser- 
 
 1 Philadelphia & Reading R. R. v. Huber, 24 W. N. C. 554, and see 
 Baltimore & Potomac R. R. v. Mackey, 157 U. S. 72. 
 
 2 Koosorowska v. Glasser, 8 N. T. Sup. N. E. Rep. 197 (1890). It is 
 held that an ordinary laborer is not to be supposed to know that the banks 
 of a ditch are in danger of caving in, the question being one of engineer- 
 ing. Doyle V. Baird, 6 N. T. Sup. N. E. Rep. 517 (1889). But see Song- 
 stad V. Burlington, C. R. & N. R. R., 5 Dak. 517, and cases cited in 
 § 205, ante. Laborers employed to work underground do not assume the 
 risk of the safety of the machinery by which a bucket in which they are 
 carried to their work is lowered, when the defects in such machinery are 
 not obvious, and when it is operated by another employee. Myers v. 
 Hudson Iron Co., 150 Mass. 125. 
 
 ' See §§ 3, 5, 11, ante, notes and cases cited. 
 
 * See § 193, ante, notes and cases cited. Thus it is said that the rule 
 
§§ 206-20T.] ksiplotkr's uabiijtt. 417 
 
 vant agrees to assume tiie ordinarr risks attending flie doing 
 of tiie voi^ which he is hired to da It would seem to be 
 unreasonable to sav that tlie employee, on his part, contracts 
 to take the risks of injorj caused by tiie breach of the recip- 
 rocal contract on the part of tiie master: or that injuries 
 cansed by defects in the means furnished to tiie servant to do 
 his work are, in any just sense, incidental to tiie employment, 
 since the law justifies Qxe servant in assuming tiiat proper 
 and sufficient appliances will be famished him.^ It is appre- 
 hended, therefore, alflioi^ there is much confusion in the 
 expression of the roles on this subject in some of the cases, 
 tiiat the view of the law is to be accepted which holds that the 
 whole question in sach cases is whether or not the employee 
 has been guilty of oontnbotory ne^igence in continuing in 
 his employment after he has discorered &e existence of the 
 defect.' Thus it is said : " The risk of flie safety of machinery 
 
 of ihe master's exemption fitHn liability for ibe n^^igence of a f eDow- 
 serrant proeeeds opoa the tbeoiy Hat tiie plaintiff, in entering upwi the 
 serriee, is presnmed to take iqton himsrif the risks inddait tfaereto. ■'Bat 
 this pr^omption eaonot arise where tiie risk is not within the contract of 
 serriee, and the servant had no reason to belieTe he would haye to en- 
 counto' it. If it were ottierwise principals woold be ideased from all 
 oUigatians to make reparatitn to an employee in a sobudinate poeitian 
 fix- 3::v injmy caused by the wiangfnl aei of tiie peism ^aoed over him, 
 whctiio' the; were fel^ow-serranta in the same conunon serriee or not. 
 Ssdi a do^rine woold be sabveisive of all just ideas of the oldgaiaons 
 arisi^ ont of the contract of serriee." Pa: Daris, J., in Union Faeifie 
 B. R. r. Foi^ 17 WalL aoS, 359. 
 
 1 See Ford r. Fltchbnrg S. R., UO Mass. 3K), as cited m^: BnmBid 
 ». IHlwQi, 131 Pe::-. St. At?. 519: Ryan r. Fowler, 24 X. T. 410, 415, 
 wfaoeeontiaryei^resaoas in Seymour r. Maddox, 16 Q. R 336, are aiti- 
 osed: § 2tr^. amU, and eases cited. It woiild seem that dangers arising 
 £rom snch C3a%&. by the necUgeaiee of Uie employer, may well faO nnda 
 tiie dasB of extxaovfnary daogers. See $ 2ij>3. ante. ■- WhoieTertbean- 
 ployer fails in his dn^" to eserciae ordinary care so tiiat ttie servant shall 
 not be "^T""^ to danger, - it is negiigoioe, and be is liable to the servant 
 who has been injured in eonseqnence of mdi fulnre of dnty, and who is 
 witboat imaXt on his part; for the servast in assuming the ordinary risks 
 of !>:« employmrait does not assome a risk wbidi s the ooDseqaenee of Uie 
 g—plny tr's Eeg^enoe." Blw»»A« r. Tiuney, 91 Maine, 222. See Mahew 
 r. SuDrran Mining Co., 76 Maine, 100; Bmaell r. TjtiBonia Manufg Cob, 
 43 Maine, 113 ; ^lanny r. Androaeoggin Mill Co.. 66 Maine, ^0. 
 
 I Lee r. Smart, 45 X^ 318 ; Benham *. Taylor, 66 Mo. App. SOa; 
 
 27 
 
418 PEESONAL INJDBIE8. [CHAP. VII. 
 
 ia not assumed by an employee unless he knows the danger, 
 or unless it is so obvious that he will be assumed to know it; " ^ 
 and, again : " The servant undertakes the risks of the employ- 
 ment so far as these spring from defects incident to the ser- 
 vice, but he does not take the risks of the negligence of the 
 master." ^ Where it appeared that the defect which caused 
 the injury was the want of a step on a freight car on which the 
 plaintiff was employed, which defect the plaintiff was aware 
 of, it was held that the case should have been submitted to 
 the jury upon the issue of the plaintiff's contributory negli- 
 gence, since the question was whether the plaintiff, by reck- 
 lessly exposing himself to peril, failed to exercise the care for 
 his personal safety which ought to be expected of him under 
 the circumstances. Harlan, J., said : " It is undoubtedly the 
 law that an employee is guilty of contributory negligence, 
 which will defeat his right to recover for injuries sustained in 
 the course of his employment, where such injuries substan- 
 tially resulted from dangers so obvious and threatening that 
 a reasonably prudent man, under similar circumstances, 
 would have avoided them if in his power to do so. He will 
 be deemed, in such case, to have assumed the risks involved 
 in such heedless exposure of himself to danger. . . . But in 
 determining whether an employee has recklessly exposed himr 
 self to peril, or failed to exercise the care for his personal 
 safety that might reasonably be expected, regard must always 
 be had to the exigencies of his position, — indeed, to all the 
 circumstances of the particular occasion." Thus the rule, as 
 laid down in this case, would seem to be that in all cases the 
 only governing test of responsibility is to be found in the ques- 
 tion whether or not the employee was guilty of contributory 
 negligence in continuing in his employment after he had dis- 
 covered the existence of the defect.^ So, where it was con- 
 Parker B. S. C. & Geo. R. R., 48 S. C. 364 ; Henion w. N. Y., N. H. & H. 
 R. R., 51 U. S. App. 157. 
 
 1 Myers v. Hndson Iron Co., 150 Mass. 125, approved in Washington & 
 Georgetown R. R. ». Gladmon, 135 U. S. 554, 573. 
 
 " Union Pacific R. R. «. O'Brien, 161 U. S. 451. 
 
 « Kane v. Northern Central R. R., 128 U. S. 91. See Texas & Pacific 
 R. R. V. Archibald, 170 U. S. 665; Geloneck v. Dean Steam Pump Co., 
 165 Mass. 202. 
 
§ 207.] EJH>LOrEE'S LIABILITT. 419 
 
 ceded that tlie d^endant was reckless in the manner of 
 running its trains, and that the plaintiff knew it, and the 
 plaintiff had been injured by reason of such recklessness, it 
 was held that there was nothing in the case to justifj the 
 court in refosing to submit to the jury the question whether 
 the plaintiff was guilty of contributory negligence.^ In an 
 earlier case, often referred to, in Massachusetts, the plaintiff 
 was a locomotive engineer, and the cause of the injury was a 
 defect in the boUer of the locomotive upon which the plaintiff 
 was employed, and the plaintiff had full knowledge of the 
 defect, but continued in the employment. It was held that 
 the defendant railroad was answerable for the injury, the 
 defect being due to the negligence of its agents charged with 
 the duty of seeing that its locomotives were kept in proper 
 order ; and Colt, J., said, " The rule of law which exempts 
 the master from responsibility to the servant for injuries 
 received from the ordinary risks of his employment, including 
 the negligence of his fellow-servants, does not excuse the 
 employer from the exercise of ordinary care in supplying and 
 muntaining suitable instrumentalities for the performance of 
 the work required. One who enters the employment of 
 another has a right to count on this dnty, and is not required 
 to assume the risks of the master's n^ligence in this 
 respect."^ And in a later case in the same State it was 
 held that the fact that a brakeman in the employ of a rail- 
 road knew of the existence of a defect in the car on which he 
 was employed, which defect caused the injury, was not deci- 
 sive agunst his right of recovery in an action for his injury ; 
 the ground of the decision being that the fact of knowledge 
 was not condnsive of the plaintiffs negligence.^ The rule to 
 
 1 Jones r. East Tennessee, T. & 6. £. R, 128 U. S. 443. 
 
 ' Ford r. Rtchbnig K. K., 110 Mass. 240. 
 
 * Lawless v. Connecticat Biver K. &., 136 Mass. 1. Bat compare 
 expTessions by Gray, C. J., in Holden r. Fitchbnrg K. B., 129 Mass. 
 268, which wonid seem to qnalify the role stated in the above cases, and 
 see Wood «. Locke, 147 Mass. 604, as cited § 208, post. In Bandall c. 
 BaltimoTe & Ohio B. R, 109 U. S. 478, it was held that the emplojee of 
 a railroad cranpaiiy assumes the risk of the condition of things in the 
 eon^any's raid. In Monlton r. Gage, 138 Mass. 890, it was held that a 
 workman employed upon an "ice^ran," which was rendered dangerous 
 
420 PEBSONAL INJURIES. [CHAP. VIL 
 
 be deduced from the authorities would, then, seem to be that 
 ■when the proximate cause of the injury is some danger or 
 defect in the means and appliances furnished for doing the 
 work, the existence of which defect or danger is due to the 
 negligence of the master, the plaintiff may still recover, unless 
 it is apparent that, in continuing in the employment imder 
 the circumstances, he was guilty of contributory negligence ; 
 in other words the employee assumes the risk only of such 
 dangers as, without the fault of the master, ordinarily and 
 naturally attend the employment.* 
 
 § 208. niustrations of the Principle stated. — The principle 
 upon which the rule stated rests has been recognized, in- 
 directly, in many decided cases. Thus it was held, that a 
 miner, before he could be held to have taken the risk of in- 
 jury from the existence of defects in the construction of the 
 mine in which he was employed, must have had a reasonable 
 opportunity to become acquainted with the danger ; ^ and later 
 in the same State it was held that where an accident occurred 
 to a railway employee by reason of the defendant's negligence 
 in maintaining a defective track, the defendant could not es- 
 cape the consequence of its negligence on the ground that the 
 plaintiff had assumed all risks of injury from riding over the 
 track.^ So it is held that an employee, a railway brakeman, 
 
 by the want of a railing, whereby he suffered injury, could not recover 
 therefor; and so where the plaintifE fell into a vat of acid which was not 
 protected by a railing. Carrigan v. Washbom & Moen Mauuf'g Co., 170 
 Mass. 79. These decisions in these cases apparently go upon the ground 
 that the plaintifE assumed the risks of his employment, under the circum- 
 stances, and exclude the question whether he was or was not guilty of 
 contributory negligence. See cases cited, § 208, post. 
 
 ' To the general proposition that the employee does not assume the 
 risk of his employer's failure of duty, see Promer v. Milwaukee, L. S. W. 
 R. E., 90 Wis. 215 ; Craig v. Chicago & Alton E. R., 54 Mo. App. 523 ; 
 Libby v. Scherman, 146 111. 540 ; Southern Pacific Co. v. Lafferty, 57 Fed. 
 Rep. 536, 6 C. C. A. 474; Texas & Pacific E. R. v. Minnick, 57 Fed. Eep. 
 362, 6 C. C. A. 387 ; Texas & Pacific E. E. v. Rogers, 57 Fed. Rep. 378 ; 
 6 C. C. A. 403 ; Southern Pacific Co. v. Johnson, 44 U. S. App. 1; Dehn- 
 ing V. Detroit Bridge & Iron Works, 46 Neb. 556; Chicago, E. I. & 
 Pacific R. R. V. McCarty, 49 Keb. 475, and cases cited, § 208, post. 
 
 2 Craball v. WapeUo, 68 Iowa, 751. 
 
 » Meloy 0. Chicago & Northwestern R. R., 77 Iowa, 743. 
 
§§ 207-208.] employer's uabiutt. 421 
 
 is not bound to know the unsafe condition of the track unless 
 tliis is plainly observable ; ^ and that although appliances be 
 defective or dangerous, yet if the apprehension of danger from 
 the use of them is not such as would occur to a reasonable 
 man, the rule of risk does not apply to an employee injured 
 by such use. although he may know the existence of the de- 
 fect.* It is held that the risk of injury from contact with an 
 improperly constructed " tell-tale " is not one which a brake- 
 man assumes as incidental to his employment ; ^ and so as to 
 a telegraph pole maintained by the company with such a slant 
 inward as to render it dangerous to the company's employees 
 in the discharge of their duty,* So it was considered that the 
 driver of a hose-cart, connected with the fire department, does 
 not assume the risk arising from the insecurity of the streets 
 resulting from the negligence of the municipality.^ The rule 
 adopted in each of these cases would seem to exclude the rule 
 that the employee, by his implied contract, assumes absolutely 
 the risk of all injuries arising from defects in machinery or 
 appliances, whether these be latent or patent. It has also been 
 held that when the danger was such as ought not to have at- 
 tended the plaiutifTs employment, the burden of proving that 
 the employee assumed the risk of danger is upon the de- 
 fendant.^ In the application of the rule, it may often be dif- 
 
 1 Fteniisylvaiiia R. B. v. Zink, 128 Penn. St. 288. 
 
 * Thorpe r. Missouri Pacific K. B., 89 Mo. 650 ; Fish r. Slinois Cent. 
 R. R., 96 Iowa, 702. 
 
 » DarUng v. New ToA, P. & B. R. R., 17 R. I. 708. 
 
 * Whipple V. N. T., N. H. & H. R. R., 19 R I. 587, and see CrandaU 
 V. N. Y., X. H. & H. B. R., 19 R. I. 594. 
 
 6 Farl^ V. New York, 152 N. Y. 222. 
 
 * Nadaa d. White River Lamber Co., 76 Wis. 120 ; Myhan r. Looisi- 
 ana Electric Light & Power Co., 41 La. Ann. 964 ; Swoboda r. Ward, 40 
 Mich. 420 ; Dorsey v. Phillips, &c.. Const Co., 42 Wis. 583 ; Rnmmel v. Dil- 
 worth. 111 Pa. St 343. This is in accordance with the view held in 
 certain States that contribatorv n^Iigence is in all cases a matter of 
 defence to be proved affirmatively by the defendant The conrt in Wis- 
 consin says : " The employee is only presumed to assume the dangers 
 nsnalfy attendant upon his employment ; and where he shows that he has 
 been injured by a caose or danger not usually or reasonably attendant 
 upon his employment, he is then entitled to recover, unless it be shown 
 that he knew of such unosual and unreasonable danger, and folly com* 
 
422 PERSONAL INJURIES. [CHAP. VII. 
 
 ficult to determine whether the condition of things which pro- 
 duces the injury was the result of negligence of the employer 
 in failing to provide suitable means and appliances, or whether 
 it was the natural and usual condition attending the doing of 
 work of that particular kind, in which latter case the risk 
 would be one of those assumed by the employee. Thus it has 
 been held that a person who enters into the employ of a rail- 
 way corporation with full knowledge that the corporation has 
 made no provision for protecting its servants from injury from 
 moving trains or locomotives, assumes all the risk of such in- 
 juries ; * and, on the other hand, that the risks of the employ- 
 ment of a railway operative do iiot include those arising from 
 the failure of the corporation to use safety frogs and blocks 
 iipon the tracks of the corporation, these being a reasonable 
 means of preventing accidents to employees.^ It is to be ob- 
 served that, in certain Cases, in which it clearly appeared that 
 the plaintiff was guilty of contributory negligence, and so 
 
 prehended its nature, at the time of his employment or before the acci- 
 dent happened. The evidence . . . having established the fact that the 
 injury to the plaintifE was caused by a danger, which ought not to have 
 attended his employment, and would not have attended it if the defend- 
 ant had performed his whole duty towards him, there is no presumption 
 that the plaintiff assumed the unusual risk, and the burden of proof is on 
 the defendant to show affirmatively that he did, to the extent that it is 
 on the defendant to show any other contributory negligence on the patt of 
 the plaintifE." Nadau v. White Kiver Lumber Co., 76 Wis. 120, 131. 
 
 » Haskin v. New York Centra,l & H. R. K. R., 66 Barb. 129. 
 
 2 Seley v. Southern Pacific R. R., 23 Pac. Rep. 751 (Utah, 1890), hut 
 see Davis v. St. Louis, Iron Mt. & S. R. R., 13 S. W. Rep. 801 (Ark. 
 1890) ; Paine v. Eastern R. R., 91 Wis. 340. It is held, in Massachusetts, 
 that if a railroad brakeman enters upon the employment of coupling cars 
 upon tracks known to him to be unlocked and dangerous, he takes upon 
 himself the risks of such employment. Wood v. Locke, 147 Mass. 604. 
 Sut it is held in the same State that he does not assume the risk of injury 
 by collision with permanent structures outside of and so near the track 
 as to render the discharge of his ordinary duty dangerous, he being in 
 fact ignorant of the danger, and not having been informed of or in- 
 structed in regard to it. Scanlon v. Boston & Albany Railroad, 147 
 Mass. 484. So where a switchman enters upon his employment in a 
 railroad yard which he knows to be intersected by a system of open 
 ditches intersectihg the tracks, hs assumes the risk of injury by falling 
 into such ditches while engaged in the discharge of his duties. De Forest 
 V. Jewett, 88 N. Y^ 264. See § 207, ante. 
 
§ 208.] employer's liability. 423 
 
 Ought not to recover, the finding for the defendant has been 
 put upon the ground that the plaintiff by continuing in the 
 employment in the face of the danger assumed, absolutely, 
 the risk of injury. Thus in a case in New York, apparently 
 in opposition to the rule as elsewhere expressed in that State,^ 
 "vrhere the injured employee had, for two or three weeks before 
 the accident, used a hand-car one of the handles to the walk- 
 ing beam of which was broken ; the employees inserting the 
 handle of a pick, or a crow bar, in the place of the broken 
 handle, this being done without the direction of the section 
 boss, and the accident to the plaintiff was caused by his work- 
 ing the hand-car in this manner ; it was held that, by riding 
 on the hand-car with a knowledge of the defect, and aiding in 
 thus working the hand-car, the plaintiff assumed all risks of 
 injury from such an accident as, in fact, occurred.^ There is 
 
 1 See Laning c. New York Central R. R., 49 N. Y. 521. 
 
 « Powers 17. New York, L. E. & W. R. R., 98 N. Y. 274. The court 
 distinguishes the case of Laning v. New York Central R. R., supra, but 
 it is apprehended that the plaintiff might well have been held debarred 
 from a recovery upon the ground of his contributory negligence. See 
 East Tenn., Va. & Ga. R. R. v. Smith, 9 Lea, 685, in which case upon 
 similar facta it was held that the plaintiff was debarred from a recovery 
 upon what is apprehended to be the true ground, that he had been guilty 
 of a want of due care in using the car under the circumstances. So, in 
 Gibson v. Erie Railway, 63 N. Y. 449, the plaintiff's intestate, a freight 
 conductor, while on the top of a car on his train, was struck and killed by 
 the projecting roof of a depot building. He had long been familiar with 
 the place, having passed it daily in the discharge of his duty. It was 
 held, Miller, J., dissenting, that he assumed the risk of injury by coming 
 into contact with the roof when he entered the employment. It was 
 further held, as, at the time of the accident, it was not necessary to the 
 discharge of his duty that the deceased should be upon the top of the car, 
 that he was, aa a matter of law, guilty of contributory negligence in going 
 there. Upon this ground Folger, J., concurred with the opinion of the 
 majority of the court, and it would seem that this finding was sufficient 
 to decide the case. It would seem that to say that the employee who is 
 guilty of contributory negligence assumes the risk of injury is merely to 
 apply the ordinary rule that the plaintiff guiltyof contributory negligence 
 is not entitled to recover ; and the rule apparently established by the 
 cases already cited is (1) that the plaintiff does not of necessity assume 
 the risk of injury from defects in the appliances furnished him to do his 
 work though these be apparent ; (2) that if his negligence in working 
 with such appliances is clearly obvious he will be debarred from a re- 
 
424 PERSONAL INJURIES. [CHAP. VIl. 
 
 a class of cases in which the employee must, of necessity, as- 
 sume the risk of injury from defects existing in the machinery 
 or means of doing the work in wiiich he is employed; as 
 where such work in itself consists in handling defective 
 machinery. Thus where a railroad corporation was in the 
 habit of constantly taking damaged cars from one station to 
 another for repair, and a person was employed to couple and 
 switch such cars, and, while engaged in doing this, he was in- 
 jured by reason of a defect in such a car, it was held that he 
 must be presumed to have undertaken the employment subject 
 to all the peculiar risks attending it, including that of being 
 injured by reason of defects in cars.* 
 
 § 209. Contrary Authority. — The rule, however, seems to 
 have been early settled, by a line of leading cases, in England, 
 that the servant, when he enters upon his employment, as- 
 sumes the risk of injury, not only from the dangers which of 
 necessity attend the employment, when carefully conducted, 
 but from dangers which arise from defects in appliances which 
 it is the duty of the master to remedy, so long as such defects 
 are open to discovery upon inspection.^ This rule is held 
 although it is admitted that the question vrhether the servant 
 in taking the risk is guilty of negligence, must often be in 
 
 covery, not on the ground that he assnmed an absolate risk, bnt on the 
 ground of his contributory negligence ; and (3) that where the question 
 "vrhether he was guilty of contributory negligence in so working is in 
 doubt, it is to be submitted to the jaiy like any other question of fact. 
 
 1 Chicago & Northwestern R. R. ». Ward, 61 Hi. 131, and see Swift v. 
 Rutowski, 167 111. 156. 
 
 « Priestley v. Fowler, 3 M. & W. 1 ; WiUiams v. Clough, 3 H. & N. 
 258 ; Griffiths v. Gidlow, 3 H. & N. 648 ; Paterson v. Wallace, 1 Macq. 
 748; Seymour v. Maddox, 16 Q. B. 326, 20 L. J. Q. B. 327; Dynen ». 
 Leach, 26 L. J. n. b. Exch. 221, and see cases cited, § 204, ante. As to 
 expressions apparently contrary to the general rule on this subject, as 
 laid down by the English courts, contained in Britten v. Great Western 
 Cotton Co., L. R. 7 Ex. 130, it is observed that in this case the defendant 
 was under special obligation by the provisions of the " Factory Act," to 
 do what it had failed to do ; that the risk was a concealed risk ; and fur- 
 ther, that the case ia hardly to be reconciled with the decisions of the 
 same court in Dynen v. Leach, 26 L. J. ir. s. Ex. 221; Assop v. Yates, 2 
 H. & N. 768 ; Griffiths v. Gidlow, 3 H. & N. 648. Per Gray, J., in Ladd 
 V. New Bedford R. R., 119 Mass. 412, 414. 
 
§§ 208-209.] bmplotbr's liabiutt. 425 
 
 reality a question of fact ; it being said tliat '^ a serrant know- 
 ing the facts may be wholly ignorant of the risks ; " ^ and 
 aldiongfa it is said that " a servant who continnes to work where 
 he is exposed to a danger which he understands and appre- 
 ciates, and which results from his employees negligence, and 
 which he did not assume br his implied contract when he en- 
 tered the seirice, does not, as matter of law, Toluntarily 
 assume it by merely remaining in a place which is rendered 
 unsafe by his master's fault." ^ The rule, as laid down in the 
 earlier cases, would seem to rest upon iJie assumption that llie 
 implied contract on the part of the servant is that he will as- 
 sume the risk of the dangers resulting from the breach of the 
 reciprocal contract on the part of the master.^ The English 
 rule, as it is stated above, has been followed, substantially, in 
 many American cases. In Connecticut, it is said : '- An em- 
 ployee having knowledge cannot claim indemnity except under 
 peculiar circumstances. He is not secretly or involuntarily 
 exposed, and likewise is paid for the exact position and hazard 
 he assumes." * In Vermont, it is held tiiat a servant who 
 
 1 Vet Byks, J., in Cla^e r. Hofanes, 7 H. & X. 9S7. 
 
 s &iiifii r. Bak» (1^1)> -^ CL 325. The ^edfie pdnt decided in Oiis 
 case -was that when file danger sriaes from an opoatkHi in another dqiait- 
 nent of the business fn>m that in whii^ the plaintiff is aigaged, and orer 
 '^lich he has no emtiol, the mere fact that he ondeistands tiie dai^er ia 
 noteondosivetoshowtiiatheassiunestiie risk; and the question whether 
 he does assume it is one of fact; Lord BiamweD dissenting. The ease 
 woold thus seem to establish a certain limitation of the general role as 
 ber^ofore held in Kngland. 
 
 * See § 208, mte. 
 
 * Hayden r. SmitfaTiDe Mannf g Co., 29 Conn. 548. 558 (1861). In 
 Mad Birar & Lake Erie B. B. v. Barber, 5 Ohio St.. 511, ii was held tiiat 
 a railroad emplqyeetoak the risk fif injniy arising &om the fact that the 
 emplojer did not famish a sufficient nnmber of imperatives to do its work 
 saf^, but it is apfirehended that Uie finding in this case may rest d|kmi a 
 di&rent prinei^e firom that upon which the cases cited supra veie de- 
 cided. See also e xpi ea ai tHis in the case of Coon v. Utica & Sjracnse 
 B. B., 6 Barb. 231. The court, in Hayden *. SmithTiDe Manofg Cou, 
 sapra, die, in suppiHt of the role laid down, the cases, Farwell r. Boston 
 & Worcester B. &, 4 Met 49; Hayes ,^. Westem B. B., 3 Cndh. 270; 
 
 .ADm> *. Agswam Canal Co., 6 Cnah. 75; but eadi of these cases was de- 
 cided upon the a|]piieati(m of the wdinaiy rale that the en^ojrex' is not 
 answerable far the ne^igenee of the feDow-aervant of the injured em- 
 
426 PERSONAL INJURIES. [CHAP. VIX. 
 
 having notice of a defective appliance continues in the em- 
 ployment, thereby ordinarily assumes the increased danger as 
 an incident of the service.' In this case the alleged defect 
 was in the construction of an overhead bridge, too low to per- 
 mit the car on which the plaintiff was standing in the dis- 
 charge of his duty to pass without injuring him.^ The court, 
 assuming that a bridge so constructed was a defect, said : 
 " We do not say that an employee who takes a risk that im- 
 perils his safety cannot in any case maintain an action, but 
 we do hold that if he knowingly and deliberately assumes a 
 risk that leads him into immediate danger, he cannot recover 
 for injuries that arise from perils that are obvious and cer- 
 tain." The court therefore would seem, by implication, to 
 limit the application of the rule to cases in which the plaintiff 
 in assuming the risk is clearly guilty of contributory negli- 
 gence.' In Michigan, it has been held that a brakeman as- 
 sumes the risk of injury from an imperfect kind of draw-bar 
 in use on the road on which he is employed, when he has cus- 
 tomarily used such bars and knows the dangers attending 
 their use.* And there are cases which hold, generally, that 
 the employee assumes the risk of all dangers of which he is 
 aware, although caused by the master's negligence ; and that 
 employee's risk and contributory negligence are distinct and 
 separable defences.^ 
 
 ployee, the master having exercised due care in the seledtion of such 
 fellow-servant. In Kogers v. Galveston City R. R., 76 Tex. 502, it was 
 held that a street-car driver assumes the risk of injury from a defect in 
 the platform on which he stands, if he has knowledge of its defective con- 
 dition. In Wells V. Coe, 9 Colo. 159, it was considered that an employee 
 who had entire charge of the work in hand and the direction of all the 
 employees engaged in it, with authority to order repairs, must be taken 
 to have the same knowledge of defects in the appliances used in the work 
 as his master, and therefore that he took the risk of injury caused by said 
 defects. 
 
 1 Carbine v. Bennington & Rutland R. R., 61 Vt. 348. See also Dumas 
 V. Stone, 65 Vt. 442 ; Williamson v. Sheldon Marble Co., 66 Vt. 427. 
 
 " But see §§ 205, 208, ante. 
 
 » See § 208, ante. 
 
 * Seoord v. Chicago & Mich. &c. R. R., 107 Mich. 540. See contra, 
 Chicago & Northwestern R. R. v. GillisoU, 173 111. 264, and § 207, ante. 
 
 6 See Crown v. Ott, 140 N< Y, 450; Knibley v. Pratt, 148 N. Y. 372 ; 
 
§§ 209-210.] laffPLOTBB's liability. 427 
 
 § 210. Employee aasomea Risks of Work done voluntarily 
 outside the Scope of the Employment. — If an employee vol- 
 untarily undertakes to do work outside his own duty, he fully 
 understanding the risks attending it, he acts at his own peril, 
 even although, in the doing of the work, he is not negligent.* 
 The reason of this rule is that the doing of such work is not 
 called for by the terms of the contract of employment, and, 
 as to his employer, he stands in the relation of one who en- 
 ters the employer's premises upon business with the owner, 
 and voluntarily puts himself into a position of danger, he 
 knowing and appreciating the risk. In deciding the question of 
 fact whether the work in the doing of which the einployee was 
 injured was within the scope of his employment, or was un- 
 dertaken by him as a volunteer, it is always to be considered 
 that the scope of duty within which a servant is entitled to 
 protection is to be defined by what he was employed to per- 
 form, and what, with the knowledge and approval of his em- 
 ployer, he did perform, rather than by the verbal designation 
 of his position.^ If it is not disputed that the employee, 
 
 Scott V. Darby Coal Co., 90 Iowa, 689 ; Erslew v. N. O. & K. E. R. R., 
 49 La. Ann. 86 ; Int. & Great North. R. R. v. Turner, 3 Tex. Civ. App. 
 487; Texas & Pacific R. R. v. Bryant, 8 Tex. Civ. App. 134. 
 
 ^ MeUor v. Merchants' Manufg Co., 150 Mass. 363; Rnmmel v. Dil- 
 worth, 131 Penn. St. 509; Coal Run Coal Co. v. Jones, 127 lU. 379; 
 Richmond & Danville R. R. v. Finley, 25 U. S. App. 16 ; Church v. Chic, 
 M. & St P. R. R., 50 Minn. 218; Evarts v. St. Paul, M. & M. Railway, 56 
 Minn. 141; Potter r. Faulkner, 1 B. & S. 800; Degg v. Midland Rail- 
 way, 1 H. & K. 773. The rule ordinarily obtains although the plaintiff 
 be a minor. Gillen v. Rowley, 134 Penn. St. 209. It was held that a 
 passer-by who is casually appealed to by a workman for information re- 
 specting a thing which the latter is doing in a public thoroughfare, is not 
 to he considered a " volunteer assistant " so as to exonerate the work- 
 man's master from responsibility for an injury resulting to the former 
 from the negligence of the workman in doing the work. Cleveland v. 
 Spier, 16 C. 6. (s. s.) 399. But a passenger upon a railway train who 
 voluntarily assumes the duties of a trainman, although at the request of 
 the servant of the railroad, takes the risk of resulting injuries. Atchison, 
 Topeka & S. F. R. R. v. Lindley, 41 Ean. 714. See Shea v. Gumey, 163 
 Mass. 184. 
 
 * Rummel v. Dilworth, 131 Penn. St. 509, 521. In this case, the plain- 
 tiff was employed as a "drag-down " in an iron mill, but received the in- 
 jury complained of while performing the duties of a " roller." It was 
 
428 PERSONAL INJUEIES. [CHAP. Vlt. 
 
 without the direction or assent of his employer express or 
 implied, voluntarily did that which he was not expected to do, 
 it will be held, as matter of law, that the plaintiff cannot re- 
 cover.^ The cases in which the act of the servant in doing 
 the work was in fact voluntary, as being without inducement 
 on the part of the employer, are governed by the principle 
 expressed in the maxim, volenti non fit injuria.^ But the 
 question becomes more difficult when the work done outside 
 the scope of the employment is done at the request, or by 
 the command and direction, of the lawful superior of the 
 workman. In Massachusetts, it is held that if the employee 
 undertake to do work outside the proper scope of his employ- 
 ment, he perceiving its dangers, he takes the risk, although 
 he be ordered by his superior to do the work, and act under 
 the reasonable fear that he will be discharged if he does not 
 obey the order.^ And the same rule formerly prevailed in 
 England.* Upon this subject it is said : " Morally, to coerce 
 a servant to an employment the risks of which he does not 
 wish to encounter, by threatening otherwise to deprive him 
 of an employment he can readily and safely perform, may 
 sometimes be harsh ; but when one has assumed an employ- 
 ment, if an additional and more dangerous duty is added to 
 his original labor, he may accept or refuse it. If he has an 
 executory contract for the original service, he may refuse the 
 additional and more dangerous service ; and, if for that reason 
 
 held that if in the absence of the " roller " the plaintiff was permitted and 
 expected to do the work of the latter, he was entitled to instruction and 
 protection in the same manner as if he had been employed as a " roller; " 
 and that it was a question of fact whether he was permitted and expected 
 to do the work of a "roUer.'' 
 
 1 Gillen v. Rowley, 134 Fenn. St. 209. See § 211,post, notes and cases 
 cited. 
 
 ^ It is held that the defence arising from the application of the maxim 
 is not affected by the operation of the Employers' Liability Act, 43 & 44 
 Vict., c. 42. Thomas v. Quartermaine, 18 Q. B. D. 685, Lord Esher, M. B., 
 dissenting. See § 230, post. 
 
 ' Leary v. Boston & Albany R. R., 139 Mass. 580, and see Davis v. 
 Western R. R., 107 Ala. 626. 
 
 * Woodley v. Metropolitan District Railway, 46 L. J. Ex. 521 ; Thomas 
 V. Quartermaine, 17 Q. B. D. 414; 18 Q. B. D. 685; but see Thrussell ». 
 Handyside, 20 Q. B. D. 359, as cited, § 211, post. 
 
§ 210,] employee's IIABILITT. 429 
 
 he is discharged, he may avail himself of his remedy on his 
 contract. If he has no such contract, and knowingly, al- 
 though unwillingly, accepts the additional and more dangerous 
 employment, he accepts its incidental risks, and while he may 
 require of the employer to perform his duty, he cannot recover 
 for an injury which occurs only from his own inexperience." ^ 
 The rule thus stated may seem to be justified, in those juris- 
 dictions in which it is held that the employee assumes abso- 
 lutely the risk of injury from patent defects in machines or 
 appliances, upon the ground that, by the command of the 
 master or of his duly authorized agent and the acquiescence 
 of the servant, the original contract of employment is ex- 
 tended to embrace the doing of work outside the scope of the 
 original employment.^ But it is now held, as has been stated, 
 in many cases, that the workman's right to recover, he hav- 
 ing been injured by reason of the existence of such defect, 
 depends always and solely upon the question whether or not, 
 in entering upon or continuing in the employment, he was 
 guUty of contributory negligence.^ If this view is to be ac- 
 cepted as a correct statement of the law upon the subject, 
 that would appear to be a sound rule which holds that when 
 the extra work is undertaken by the command of the master 
 or his agent, the master becomes liable for the consequences 
 of his own negligence, if this is a contributing cause of the 
 plaintiff's injury,* or, in any case, if the employee has no fair 
 
 1 Leaiy v. Boston & Albany R. R. , supra, and see Russell v. Tillotson, 
 140 Mass. 201; Haley v. Case, 142 Mass. 316; bnt see ezpiessions in 
 MeUoT V. Merchants' Manof g Co., 150 Mass. 362, 364. 
 
 2 See § 209, ante. 
 
 » See §§ 207, 208, ante. 
 
 * Lalor V. Chicago, Bnrlington & Qnincy R. R., 52 DI. 401; Chicago 
 Drop Forge Co. v. Van Dam, 149 111. 337; Jones v. Lake Shore & Mich. 
 Soathem R. B., 49 Mich. 573; Colorado Electric Co. v. Lubbers, 11 Col. 
 505. In the last cited case the plaintiff, a carpenter in the employ of the 
 defendant, was sent by it to remove one of its electric lamps and connect 
 the vrires with the circuit, the work not being within the scope of his 
 employment. WMle he was performing the work, the defendant negli- 
 gently turned on the electric current, by which the plaintiff was injured, 
 and it was held that he was entitled to recover. So where the plaintlS 
 was a minor, who did not understand the danger of the work outside that 
 for which he had made his contract of employment^ which work he waa 
 
430 PERSONAL INJDB1E8. [CHAP. VII. 
 
 opportunity to estimate and appreciate the danger which the 
 new work involves ; since the master is always liable for inju- 
 ries resulting from the existence of concealed defects for 
 which he is responsible.* In such cases, it is apprehended 
 that the master is liable to the employee for the same reason 
 and to the same extent that the owner of land and buildings 
 is ordinarily liable to one who by his invitation comes upon the 
 premises for the purpose of doing business with or for him,^ 
 
 § 211. Same Subject : Rule relaxed in Favor of the Employee. 
 — The tepdency of modern authority is clearly towards the 
 view which holds that the master may be responsible for in- 
 juries which the employee receives in doing work outside of 
 
 ordered to do, and in the doing it was injured, it was held that his em- 
 ployer was liable for negligently setting him to do such work. Union 
 Pacific R. R. V. Fort, 17 Wall. 553. See § 211, post, and cases cited. 
 
 I Yarmouth v. France, 19 Q. B. D. 647; Ferren v. Old Colony R. R., 
 143 Mass. 197; MeUor v. Merchants' Manuf'g Co., 150 Mass. 362, and see 
 cases cited, § 211, post. 
 
 ' See §§ 66, 67, ante, notes and cases cited. It has been held that 
 when a servant is asked by his master to do something which forms no 
 part of his employment, and while he is doing that which is in fact a mere 
 good-natured act, he receives an injury which he had no cause to expect, 
 he may entitled to recover for such injury. Thus the plaintifi was a 
 workwoman in the employ of the defendant, a dressmaker. The defend- 
 ant, as the plaintiff knew, kept a savage dog, which in consequence of its 
 having bitten several persons was kept tied up. At the request of the 
 defendant, the plaintiff went into the kitchen of the defendant's house, 
 when the dog rushed from under the table and bit her. A verdict for the 
 plaintiff was supported, the court saying : " If the plaintlS when she 
 entered her employment knew the character of the dog, and that, in the 
 ordinary course of her employment, she would have to go by the place 
 where it was tied up, it might perhaps be said she took the risk. But here 
 she was asked to do something which was no part of her service. . . . The 
 plaintiff had no reason to suppose the dog would be loose, and this was an 
 extra risk not incidental to the service for which the defendant is responsi- 
 ble." Mansfield v. Baddeley, 34 L. T. 696. Upon the facts of this case 
 it would seem that the liability of the defendant might well be made to 
 rest upon her negligent or malicious keeping of a savage animal in such a 
 manner that third persons would be exposed to danger from it ; for had 
 the plaintiff entered the kitchen, not by order or permission even, but as 
 a trespasser, it is apprehended that the defendant might have been liable 
 for the resulting injury. See § 71, ante. 
 
§§ 210-211.] employer's liability. 431 
 
 the employment for which he was hired, when the master has 
 been guilty of negligence which, had the work been that con- 
 templated by the original contract, would have rendered him 
 liable, and when the extra work was undertaken by the em- 
 ployee at the command, or explicit direction, of the master or 
 his agent. It is now held by the English courts that the 
 question, in such cases, whether the employee took the risk, 
 is one of fact ; ^ and the court says : " It is difficult to say, 
 where a man is lawfully working subject to the orders of his 
 employers, and to the risk of dismissal if he disobeys, . . . 
 that the maxim volenti non fit injuria applies. It is true that 
 he knows of the danger, but he does not wilfully incur it. 
 Scienti ... is not equivalent to volenti. It cannot be said, 
 where a man lawfully engages in work, and is in danger of 
 dismissal if he leaves his work, that he wilfully incurs any 
 risk which he may encounter in the course of such work." In 
 the same case it was held that where a plaintiff, aware of the 
 danger, was compelled by the orders of the employer to work 
 where he was working when the accident happened, the maxim 
 volenti non fit injuria did not apply, and that he might be en- 
 titled to recover.^ It is to be observed that it must generally 
 amount to much the same thing whether the case be referred 
 to the jury upon the question whether the plaintiff took the 
 risk, or upon the question whether in doing the work he was 
 guUty of contributory negligence. In a carefully considered 
 case in Michigan, where the extra work was done by the order 
 of the plaintiff's superior workman, these rules were laid 
 down : (1) The only risks which a servant assumes are those 
 which properly belong to his employment. (2) A master is 
 responsible for acts of his servant done within the scope of 
 his business and in furtherance of his interests, but done in 
 excess or even in disobedience of his orders, express or im- 
 plied, and in employing a servant the master takes the risk of 
 his disobedience ; and he is therefore liable for injuries result- 
 
 1 Tannonth ». France, 19 Q. B. D. 647; Membuiy r. Great Western 
 Bailway, cited 20 Q. B. D. 360; Thrussell v. Handyside, 20 Q. B. D. 359. 
 lu the latter case the court distinguishes Thomas v. Quartermaine, 17 
 Q. B. D. 414, 18 Q. B. D. 685, as cited, § 210 ante. 
 
 3 Thrussell v. Handyside, supra. 
 
432 PERSONAL INJURIES. [CHAP. VII. 
 
 ing from such acts not only to outsiders, but to subordinate 
 fellow-employees. So where a laborer on a construction train, 
 on a railroad, was ordered by the person in charge of the train 
 to do the work of an engine-man, he being ignorant of such 
 work, and he obeyed, and in doing the work was injured, it 
 was held that the railroad company might be liable for the 
 injury. Cooley, J., said : " It may be said that in thus yield- 
 ing obedience [the servant] accepts the risks which accom- 
 pany it, for the same reasons that he accepts the risks of the 
 employment in which he actually engaged. But the risks the 
 servant assumes are only those which are properly incident to 
 the employment ; and he may always require the master to 
 respond for injuries resulting from his personal negligence. 
 • . . Nor do we think it follows that because Smith [the per- 
 son in charge of the construction train] at the time was ex- 
 ceeding his authority, the company is not responsible for his 
 action. It is in general no excuse to the employer that an 
 injury . . . was caused by disobedience of his orders. . . . 
 He assumes the risks of such disobedience when he puts the 
 servant into his business. ... In this case Smith had charge 
 of the train and of the men employed with it. In what he 
 did, he was not purposely committing any wrong outside the 
 employment, but his wrong was committed while acting in 
 the very capacity in which he was employed, and had for its 
 manifest purpose not to injure [the plaintiff] but to advance 
 the interests of the railway company. As between the com- 
 pany and any other than a fellow-servant, there could be no 
 question that his act should be deemed the act of the com- 
 pany. . . . But we also think that where the superior servant 
 by means of an authority which he exercises by delegation of 
 the master, wrongfully exposes the inferior serva.nt to risks 
 and injury, the master must respond. It is only where the 
 risks properly pertain to the business, and are incident to it, 
 that the master is excused from responsibility ; and a risk of 
 this nature not being one of that kind, the general rule ap- 
 plies, and he must answer for the misconduct of his agent." ^ 
 So, in Illinois, it was held, where a person in the employment 
 of another, in the performance of a specific line of duty only 
 
 1 Chicago & Northwestern B. B. v. Bayfield, 37 Mich. 206, 211-313. 
 
§ 211.] employer's liabiutt. 433 
 
 ordinarily hazardous, is commanded by a fellow-servant, whose 
 directions he is to obey, to do an act in the same general ser- 
 vice, but different from the employment for which he was 
 hired and extra-hazardous in its character, and in which the 
 superior servant knew that he was unskilled, and in doing 
 such work the servant is injured by the negligence of another 
 servant employed in the particular line of service in which the 
 work was being done, that the common employer was liable 
 for the injury .1 In Missouri it was held that when a servant, 
 in the course of his work, assumes a dangerous position, in 
 obedience-to orders,^and is injured in consequence owing to 
 the master's negligence in supplying a sufficient number of 
 workmen or sufficient appliances, the servant's knowledge of 
 the danger will not constitute contributory negligence, unless 
 the danger was so evident that he ought, under all the cir- 
 cumstances, to have refused to enter into it ; and that whether 
 he was negligent is a question of fact for the jury.^ A like rule 
 was held where the servant of a railroad jumped from a mov- 
 ing train in obedience to orders.^ In Virginia it is held that 
 an employee, acting in obedience to orders, is not to be con- 
 sidered negligent unless the danger is perfectly obvious.* In 
 Michigan it was held that where a railway employee is injured 
 wliile in the performance of work to which he was wrongfully 
 assigned, and which he had never agreed to do, he is entitled 
 to recover from the railway company for injuries received in 
 doing the work.* It often may be difficult to determine 
 whether tlie employee, in fact, acted under such circumstances 
 of stress or coercion as would justify the inference that the 
 
 1 Lalor p. Chicago, Burlington & Quinoy R. R., 52 111. 401. 
 
 " Fogus V. Chicago & Alton R. R., 50 Mo. App. 250. 
 
 s Ballard v. Chicago, R. I. & Pac. R. R., 51 Mo. App. 453. 
 
 * Michael v. Roanoke Machine "Works, 90 Va. 492 ; Norfolk & West- 
 em R. R. V. Ward, 90 Va. 687; Norfolk & Western R. R. v. Ampey, 93 
 Va. 108. Where a foreman directed a workman to drill out a blast hole 
 which he supposed to be unloaded, and the plaintiff expressed fear, but 
 obeyed orders, and was injured by the explosion of the . hole, when he 
 might by examination have discovered that the hole was loaded, he was 
 held negligent. Sexton v. Turner, 89 Va. 341. 
 
 B Jones V. Lake Shore & Michigan Southern R. R., 49 Mich. 573, and 
 see cases cited, infra. 
 
 28 
 
434 PERSONAL INJURIES. [CHAP. VU, 
 
 act was not voluntary. Where the employee was given his 
 option to do the work in the doing of which he was injured, 
 or to " lay off," it was held that he assumed the risk of injury 
 in doing the work ; ^ and generally it is held that the mere 
 threat of discharge on the part of the employer, should the 
 employee refuse to do the work, will not relieve the latter 
 from the risks attending the doing of it.^ But where a com- 
 mon seaman, on board the defendant's vessel, was required 
 under the alternative of punishment to work machinery which 
 was obviously dangerous, it was held that his exposure to 
 danger was not voluntary, and that he did not assume the risk 
 of injury thereby.* It was held that, the duties of the con- 
 ductor of a freight train being somewhat general, one who 
 had been conductor for seven years, and brakeman for several 
 years previously, might, when his train was late, and the 
 brakeman employed on it had made several unsuccessful at- 
 tempts to couple a car, perform that duty himself without 
 assuming the risk of injury.* Where the plaintiff, a railroad 
 fireman, was requested by his engineer to run the locomotive 
 to a certain place, and in doing this the plaintiff was injured 
 by the negligence of the railway company, and it appeared 
 that there was a rule of the company forbidding the engineer 
 to place his locomotive in charge of another, but that the en- 
 gineer at the time of making the request was sick, and there 
 was testimony that the rule was not intended to be enforced 
 in such cases, it was held that the plaintiff might recover for 
 his injuries.^ 
 
 § 212. Promise by Master to make Appliances Safe, Effect of. 
 — Where the servant has full and equal knowledge with the 
 
 1 Prentiss v. Kent Furniture Mannf g Co., 63 Mich. 478. The court, 
 in this case, held tliat it was not open to the plaintifE to say that his con- 
 tract of employment did not embrace the class of work which he was 
 ordered to do by the defendant's foreman, and in the doing of which he 
 was injured, thus distinguishing the case from the preceding cases of 
 Chicago & Northwestern R. K. v. Bayfield, 37 Mich. 205 ; Jones v. Lake 
 Shore & Mich. Southern R. R., 49 Mich. 573, as cited, supra. 
 
 ' See cases cited, supra. 
 
 ' Eldridge v. Atlas Steamship Co., 55 Hun, 309. 
 
 * Seley v. Southern Pacific R. R., 23 Pac. Rep. 751 (Utah, 1890). 
 
 8 East Line & Red River R. R. v. Scott, 71 Tex. 703. 
 
§§ 211-212.] employee's liability. 435 
 
 master that the machinery or materials used are defective, 
 or that a fellow-servant employed with him is reckless or in- 
 competent, but nevertheless remains in the service, this may 
 constitute contributory negligence ; but if it appears that the 
 master has promised to amend the defect, or other like in- 
 ducement to remain has been held out to the servant, the mere 
 fact of his continuing in the employment does not of itself, as 
 matter of law, exonerate the master from liability ; but the 
 question of contributory negligence will be for the jury.^ The 
 rule is in accord with the principle laid down in authorities 
 already cited, that the employee does not as a matter of law 
 assume the absolute risk of injury from defects in appliances 
 existing through the negligence of the master, but that the 
 question in all such cases is whether the employee by con- 
 tinuing in the employment, he knowing the means for doing 
 the work to be defective, is guilty of negligence ; which ques- 
 tion, in doubtful cases, will be for the jury to determine.^ 
 The English and certain American cases, however, hold, as 
 
 » Laning e. New York Central R. R., 49 N. T. 521, Allen, J., dissent 
 ing. See also Manufacturing Co. v. Morriasey, 40 Ohio St. 148 ; Missouri 
 Furnace Co. v. Abend, 107 111. 44 ; Weber Wagon Co. v. Kehl, 139 111. 
 644 ; Patterson v. Pittsburg & Connellsville R. R., 76 Penn. St. 389 ; 
 Greene v. Minneapolis & St. Louis Railway, 31 Minn. 248 ; Plomestake 
 Mining Co. 17. Fullerton, 36 U. S. App. 32 ; Maitland v. Gilbert Paper Co., 
 97 Wis. 476 ; Missouri Pac. R. R. v. Baxter, 42 Neb. 793 ; Harris v. Hewett, 
 64 Minn. 54. The rule as thus stated is in conformity with that held by the 
 Supreme Court of the United States. Thus in an action for personal in- 
 juries to a brakeman, on a railroad, who fell from a car and was injured 
 by reason of a step being off the car, which step he had discovered to be 
 missing and which car the conductor had promised the plaintiff to drop 
 out of the train if it did not contain perishable goods, it was held that it 
 was not, as matter of law, contributory negligence for the plaintiff to 
 stay on the train under all the circumstances of the case. Harlan, J., 
 said : " An employee upon a railroad train, likely to meet other trains, 
 owes it to the public as well as to his employer not to abandon his post 
 unnecessarily. Besides, the danger arising from the defective car was 
 not so imminent as to subject him to the charge of recklessness in remain- 
 ing at his post under the conductor's assurance that the car should be re- 
 moved from the train. ... if it did not contain perishable fi'eight." 
 Kane v. Northern Central Railroad, 128 U. S. 91. See §§ 207, 208, ante, 
 notes and cases cited. 
 
 2 See §§ 193, 207, 208, ante, notes and cases cited. 
 
436 PERSONAL mjURIES. [chap. VII. 
 
 has been stated, to the rule that if the employee knows that 
 the means and appliances furnished him for doing his work 
 are dangerous or unsafe, he, by continuing to use them, as- 
 sumes the risk of injury thereby, and is debarred from show- 
 ing that, as matter of fact, he was not guilty of contributory 
 negligence in continuing in the employment.^ But the author- 
 ities are agreed that if such means or appliances are danger- 
 ous, and the employee has complained of them, and the 
 master, in answer to such complaints, has promised that they 
 shall be made safe, and the employee, while reasonably ex- 
 pecting the promise to be performed, continues in his employ- 
 ment, and is injured by reason of the dangerous defect, before 
 this is remedied, the promise is a competent fact for a jury to 
 consider in determining whether the employee assumed the 
 risk in the mean time, — which question, under such circum- 
 stances, becomes one of fact.^ But the mere fact of the 
 promise will not, as matter of law, entitle the employee to re- 
 cover. And if a reasonable time, within which the repair 
 might have been made, has elapsed, and the master has not 
 fulfilled his promise, there is at least a strong presumption 
 that he takes the risk of injury ; " and so if he remains when 
 the danger is obviously imminent.* It is not necessary in order 
 
 ^ See § 209, ante, and cases cited. 
 
 2 Clarke v. Holmes, 7 H. & N. 937 ; Counsell v. Hall, 145 Mass. 468; 
 Greenleaf v. Illinois Central R. R., 29 Iowa, 14 ; Belair v. Chicago & 
 Northwestern R. R., 43 Iowa, 662 ; Bogenschutz o. Smith, 84 Ky. 330 ; 
 Southern Kansas Railway v. Crocker, 41 Kan. 747. The notice is suffi- 
 cient, however timid and hesitating, if it conveys to the master the idea 
 that the defect exists, and that the employee desires its removal. Thorpe 
 V. Missouri Pacific R. R., 89 Mo. 650. It is said that the servant assumes 
 obvious risks of a simple employment, even although the master has 
 promised to furnish him tools by which the work can be done more con- 
 veniently, or even more safely ; and that the master is not obliged to fur- 
 nish tools for a certain kind of work if this can be performed with a 
 reasonable degree of safety without them. Gowen v. Harley, 12 U. S. 
 App. 574. 
 
 * Stephenson v. Duncan, 73 Wis. 404 ; Counsell v. Hall, 145 Mass. 
 468 ; Illinois Steel Co. v. Mann, 170 III. 200. 
 
 * Cross Lake Logging Co. v. Joyce, 53 U. S. App. 221 ; Bellville Stone 
 Co. ).. Mooney, 60 N. J. L. 324; Erdman v. 111. Steel Co., 95 Wis. 
 61 ; Chicago Brick Co. o. Sobkowick, 148 HI. 573 ; Texas & N. O. R. R. 
 II. Single, 9 Tex. Civ. App. 322. 
 
§ 212.] employer's liabiutt. 437 
 
 to justify the servant in relying on the promise, that a definite 
 time should be fixed for its fulfilment.^ If it is made in 
 general terms, the servant may rely on it for a reasonable 
 time ; but not when it is made contingent on some future 
 event, such as the finishing of a particular job of work.^ If 
 the complaint of the employee is not made on his own account, 
 but in behalf of another, and the assurance of the master is 
 not the moving cause of the employee's continuing in his em- 
 ployment, it seems that such promise has not any effect to 
 modify the general rule of risk in favor of the employee. 
 Upon this subject it is said : " Most, if not all the cases . . . 
 go upon the ground that the servant was led to continue at 
 his employment by the master's promise that the defect com- 
 plained of should be remedied. In some of them there is a 
 direct request to the servant by the master or his representa- 
 tive to do so. No case, we think, has gone so far as to hold 
 that where the servant does not complain on his own account, 
 and continues in his employment with full knowledge of the 
 risk, he can recover of the master, because the latter, when 
 the defective condition was called to his attention by the ser- 
 vant, gave assurances, which did not induce the servant to 
 remain, that the defect should be remedied." ^ The rule stated 
 
 1 Swift 0. Madden, 165 lU. 41. 
 
 » Standard Oil Co. v. Helmick, 148 Ind. 457. 
 
 s Per Morton, J., in Lewis v. New York & New England R. R., 153 
 Mass. 73. It is held, if the workman makes complaint of the insufficiency 
 of the means furnished him to do his work, as of the absence of the as- 
 sistants necessary to the safe doing of it, there being others at hand upon 
 whom he might call for aid, that he takes the risk of injury. Way v. 
 Chicago & Xorthwestem R. R., 76 Iowa, 393, 396, and see Lumley v. Cas- 
 well, 47 Iowa, 159 ; Money o. Lower Vein Coal Co., 55 Iowa, 671 ; Heath 
 V. Whitebreast Coal Co., 65 Iowa, 737. These cases follow the rule that 
 the servant assumes absolutely the risk of injury from apparent defects 
 in machinery and appliances, see §§ 207-209, ante. For applications of 
 the general rule in cases in which locomotive engineers have been injured 
 by accidents caused by defects in their locomotives, or the appliances 
 thereto, see Monaghan v. New York Central & H. R. R. R., 45 Hun, 113; 
 Norfolk & Western R. R. v. Jackson, 85 Va. 489 ; Yates v. McCullough 
 Iron Co., 69 Md. 370; Stephenson v. Duncan, 73 Wis. 404; Gulf, C. & 
 S- F. R. R. B. Williams, 72 Tex. 159. One who was working on a trestle, 
 for the defendant railroad, on a foggy morning, stepped backward to get 
 
438 PERSONAL INJURIES. [CHAP. VII. 
 
 appears to be somewhat artificial as it is held by those courts 
 which extend the application of the doctrine of Employees' 
 Risk to cover cases in which the employee suffers injury from 
 defects in appliances existing by reason of the master's negli- 
 gence, and would seem to be intended to mitigate the rigor of 
 that doctrine as in favor of the servant. It is said that, after 
 a complaint, and a promise by the master that the defect shall 
 be remedied, it cannot be said that the servant by remaining 
 in the employment engages to run the risk, because his com- 
 plaint to the master negatives the presumption that he ac- 
 quiesces in the danger. Thus the servant was employed to 
 oil dangerous machinery which was fenced at the time when 
 he entered the employment but the fencing of which had be- 
 come broken. He made complaint to the master, and the 
 latter promised that the fencing should be repaired. On faith 
 of this promise, the servant continued to do his work, and, he 
 being injured by reason of the want of fencing, it was held 
 that he might recover.^ But it is evident that, the defect 
 being patent, the servant, in fact, assumed precisely the same 
 risk before and after the complaint ; and that, had the issue 
 been made upon his contributory negligence, the fact of his 
 having made a complaint would only have been material as a 
 circumstance to show that he knew and appreciated the dan- 
 gers of the employment. The same observation applies to 
 those cases which hold that if the conduct of the master has 
 been such as to induce an expectation on the part of the 
 servant that the defect is to be remedied, he may be taken 
 not to be precluded from a recovery by the presumption that 
 he assumed the risk.^ 
 
 out of the way of a train, and was killed by another train, on another 
 track. The officers of the defendant road had promised the contractor 
 under whom the deceased person was working that trains should be so 
 run that the men working on the trestle could get out of the way. Al- 
 though this promise was not known to the deceased person, it was held 
 that the question of his contributory negligence was for the jury. ' Inter- 
 state C. R. T. R. R. V. Pox, 41 Kan. 715. 
 
 1 Holmes v. Clarke, 31 L. J. Ex. 358. 
 
 2 See Holmes v. Worthington, 2 F. & F. 533 ; McGee v. Eglington 
 Iron Co., 10 R. (Scot.) 935. The principle as stated by Cooley, Torts, 559, 
 and approved by the Supreme Court of the United States, is that " if the 
 
§§ 212-213.] employee's liability. 439 
 
 SECTION IV. 
 
 OF INJURIES CAUSED BY THE NEGLIGENCE OP THE PLAINTIFF'S 
 FELLOW-SERVANT. 
 
 § 213. Generally, Master not liable. — Among the risks 
 ■which the employee assumes upon entering his employment 
 is that of injury arising from the negligence of his fellow- 
 servants engaged in the same employment. This rule rests 
 on the consideration that the implied contract of service does 
 not include any obligation on the part of the master to hold 
 the employee harmless from risks which the employer cannot 
 control.^ This principle was laid down, with great elabora- 
 tion, by Shaw, C. J., in the leading American case upon tlie 
 subject. After saying that the doctrine of respondeat supe- 
 rior can have no application in cases in which the parties, like 
 
 servant having a right to abandon the service because it is dangerous, re- 
 frains from doing so in consequence of assurances that the danger shall 
 be removed, the duty to remove the danger is manifest and imperative, 
 and the master is not in the exercise of ordinary care unless or until he 
 makes his assurances good. Moreover, the assurances remove all ground 
 for the argument that the servant by continuing the employment engages 
 to assume all risks." See Hough v. Texas & Pacific Railway, 100 U. 
 S. 213. 
 
 ' Albro V. Agawam Canal Co., 6 Cush. 75 ; Gilman v. Eastern R. R., 10 
 Allen, 236; Smith v. Lowell Manuf'g Co., 124 Mass. 114 ; Kelly v. Boston 
 Lead Co., 128 Mass. 456 ; Beaulieu v. Portland Co., 48 Maine, 291 ; Han- 
 ley V. Grand Trunk R. R., 62 N. H. 274; Wiger v. Pennsylvania R. R., 
 55 Penn. St. 460; Duffy v. Oliver, 131 Penn. St. 203; Pawling v. Haskins, 
 132 Penn. St. 617; Ford v. Lake Shore & Mich. So. R. R., 117 N. Y. 638; 
 Kenny v. Cunard Steamship Co., 55 N. Y. S. C. 558; McCoy v. Empire 
 Warehouse Co., 10 N. Y. Sup. N. E. Rep. 99 (1890); Collyer v. Penn- 
 sylvania R. R., 49 N. J. L. 59 ; Davis v. Detroit & M. R. R., 20 Mich. 
 105 ; Blazinski v. Perkins, 77 Wis. 9 ; Miller v. Ohio & M. R. R., 24 111. 
 App. 326; Kivem v. Providence, G. & S. Mining Co., 70 Cal. 392; The 
 Sachem, 42 Fed. Rep. 66 ; Hough v. Texas & Pacific R. R., 100 U. S. 213; 
 Priestly v. Fowler, 3 M. & W. 1 ; Bartonshill Coal Co. o. Reid, 3 Macq. 
 266 ; Bartonshill Coal Co. v. MoGuire, 3 Macq. 308 ; Morgan v. Vale of 
 Neath Railway, 1 Q. B. 149 ; Murphy i>. Caralli, 3 H. & C. 462 ; Warbur- 
 ton V. Great Western Railway, L. R. 2 Ex. 30, and see cases cited under 
 the following paragraphs. 
 
440 PERSONAL INJURIES; [CHAP. Til, 
 
 an employer and his employee, are in privity of contract with 
 each other, and that the claim of the employee for indemnity 
 for injuries received by reason of the negligence of his fellow- 
 servaut must rest, if it is to he supported, upon an implied 
 contract of indemnity, he continues : " It would be an implied 
 promise arising out of the duty of the master to be responsible 
 to each person employed by him ... to pay for all damages 
 occasioned by the negligence of every other person employed 
 in the same service. If such a duty were established by 
 law, ... it would be . . . settled by judicial precedents. But 
 we are of opinion that no such rule has been established. . . . 
 The general rule ... is that he who engages in the employ- 
 ment of another for the performance of specified duties and 
 services, for compensation, takes upon himself the natural 
 and ordinary risks . . . incident to the performance of such 
 services, and, in legal presumption, the compensation is 
 adjusted accordingly. And we are not aware of any legal 
 principle which should except the perils arising from the 
 carelessness and recklessness of those who are in the same 
 employment. They are perils incident to the service. ... To 
 say that the master shall be responsible because the damage 
 is done by his agents is assuming the very point which re- 
 mains to be proved. They are his agents to some extent, and 
 for some purposes ; but whether he is responsible in a partic- 
 ular case for their negligence, is not decided by the single 
 fact that they are, for some purposes, his agents." The court, 
 in the same case, says further : " We would add a caution 
 against any hasty conclusion as to the application of this rule 
 to a case not fully within the same principle. It may be varied 
 by circumstances not appearing in the present case, in which 
 it appears that no wilful wrong or actual negligence was im- 
 puted to the defendant, and where suitable means were fur- 
 nished and suitable persons employed to accomplish the object 
 in view. We are far from intending to say that there are no 
 implied warranties arising out of the relation of master and 
 servant." ^ 
 
 1 Farwell v. Boston & Worcester R. R., 4 Met. 49 (1842). This case 
 ■was followed in Hutchinson v. York, Newcastle & Berwick Railway, 19 
 L. J. Ex. 296, 5 W. H. & G. 343 ; Wigmore v. Jaj, 19 L. J. Ex. 300 ; 
 
§§ 213-214.] employer's liability. 441 
 
 § 214. Limitations of tha Rule. — The negligence of the fel* 
 low-sorvant for which the law exempts the master from re- 
 sponsibility, is negligence only in respect of the subject of the 
 common employment of the two servants. It is obvious that 
 if one of two servants of a common master wilfully or negli- 
 gently injure the other engaged in a different employment, 
 the injured servant has been exposed to a risk which, under 
 the implied contract of service, he did not assume ; and, in 
 such a case the rule of respondeat superior is applied to make 
 
 5 W. II. & G. 354; Seymour v. Maddox, 16 Ad. & El. (n. a.) 326 (and 
 see Wilson v. Merry, L. R. 1 So. App. 326 ; Priestley v. Fowler, 3 M. & 
 W. 1) i Browu ii. Maxwell, 6 Hill, 592 ; Coon v. Syracuse & Utioa R. R., 
 
 Barb. 321. It is to be observed that, in some of the earlier reported 
 cases upon tills subject, the limitation of the rule to cases in which the 
 employer has not been guilty of negligence in the selection or employment 
 
 01 his servants is not deai'ly expressed ; but this limitation is clearly 
 defincil in the later cases. It is to be noticed further, that Shaw, C. J., 
 would seem to be disposed to limit the doctrine of Employees' Risk, gen- 
 erally, to cases in which the accident has, in fact, occurred without the pre- 
 cedent negligence of the master causing it, — a rule which would clearly 
 reduce the question of the right of the servant to recover in cases in which 
 it is admitted that he was injured by a cause existing through the master's 
 fault, to an inquiry whether the servant was himself guilty of contributory 
 negligence in entering upon or continuing in the employment, a rule which 
 is believed to be in accordance with reason and which is supported by 
 weighty modern authorities. See §§ 207, 208, ante, notes and cases cited. 
 So it is said that the doctrine which exempts the master from liability 
 ai'ising out of tlie negligence of fellow-servants is based upon the assump- 
 tion by the servant of the ordinary risks of the employment in which the 
 uegliiTence of fellow-servants is included, but it has no application to 
 risks not contemplated by him before entering on the service. Burke v. 
 Anderson, 34 U. S. App. 132. See Pullman Palace Car Co. w, Laaok, 
 113 111. 242. This rule would exclude the operation of the rule held by 
 many English and American cases that the servant takes the absolute 
 risk, not only of injury ai-ising in the proper exercise of the employment, 
 but of that arising from the existence of patent defects in the appliances 
 furnisiied by the master for doing tiie work ; see § 209, ante, notes and 
 cases cited. It is clear that injury arising from the default of a fellow- 
 servant whom tlie ma.ster has, in the flrat place, carefully selected cannot 
 be referred to the negligence of the master as to a proximate cause ; and, 
 on the other hand, that it may well be so referred if the master has been 
 negliLfent in tiie employment or retention of the careless servant See 
 § 100, ante, notes and oases cited. 
 
442 PERSONAL INJURIES. [CHAP. Til. 
 
 the master responsible.^ So when the master assumes the 
 responsibility for the act to be done whereby the injury results, 
 or where the law charges him with it by implication, he may 
 be guilty of negligence, and so responsible for the injurious 
 result, although the act is, in fact, done by the hand of 
 another. Thus if defective appliances for doing work are fur- 
 nished, the master may be responsible although the fellow- 
 workmen of the injured plaintiff are employed by the master 
 in the preparation of them ; as where the plaintiff was injured 
 by the fall of a staging upon which he had been directed to go 
 by his master for the purpose of doing the work which he was 
 hired to do ; the master having selected the materials for the 
 staging, and superintended the work generally, although he 
 did not personally supervise it, and the work was done by 
 persons who were afterwards the fellow-workmen of the plain- 
 tiff.2 And there is a line of later American cases which hold 
 that the master is bound by a duty which he cannot avoid by 
 delegation to furnish sufficient and safe means and appliances 
 to the servant for doing the work, and that if the doing of this 
 is intrusted by the master to a servant, such servant is, pro Jiao 
 vice, the agent of the master and not the fellow-servant of the 
 employee who is to make use of the appliances.* It is held, 
 however, that if the negligent servant is employed by the 
 master not only to do certain work but to furnish the tools 
 and appliances necessary therefor, and by reason of defects in 
 such tools and appliances a fellow-servant of the person fur- 
 nishing these is injured, the common employer vMU not be 
 
 1 See §§ 33 et seq., ante, notes and cases cited. 
 
 " Arkeson v. Dennison, 117 Mass. 407 ; Twomey v. Swift, 163 Mass. 
 273. But where the master had furnished suitable materials and had 
 committed the work to skilful men, the fellow-servants of the plaintiff, 
 it was held that the employer was not liable for an injury caused to 
 the plaintiff by the fall of the structure. Kelley v. Norcross, 121 Mass. 
 508. See Colton v. Richards, 123 Mass. 484 ; Rogers v. Ludlow Manuf'g 
 Co., H4 Mass. 198. 
 
 s See Northern Pacific R. R. v. Herbert, 116 U. S. 650; Van Dusen v. 
 Letellier, 78 Mich. 492 ; Laning v. New York Central R. R., 49 N. Y. 
 5:21 ; Shanny v. Androscoggin Mills, 66 Maine, 420 ; Rogers v. Ludlow 
 Manuf'g Co., 144 Mass. 198 ; Ryalls v. Mechanics Mills, 150 Mass. 188, 
 and other cases cited § 193, ante. 
 
|§ 214-215.] employer's liabiutt. 443 
 
 liable unless it appear that he was negligent in the selection of 
 his employees. It is said : " Suppose a carpenter and plumber 
 are engaged in the common employment of making repairs, 
 each bringing . . . his own tools, the master would not be 
 liable for an injury to the carpenter caused by a defect in the 
 furnace of the plumber. Two woodmen are employed to cut 
 down trees and they both bring their own axes : it could not 
 be contended, if one is injured by a defect in the axe of the 
 other, that the master would be responsible."^ But it is 
 apprehended that different rules will apply when the employee 
 acts as an agent of the master in furnishing the tools or appli- 
 ances ; and when he contracts simply to do the work and him- 
 self furnish the tools, of which he retains the ownership.^ 
 
 § 215. Negligence of the Master contributing, he is Liable. — 
 If the negligence of the master is a concurring cause with that 
 of the fellow-servant to produce the injury complained of, the 
 master may be liable therefor,^ for " if the negligence of the 
 master contributed to, it must have been an immediate cause 
 of the accident, and it is no defence that another was likewise 
 guilty of wrong ; " * and the master enters into an implied 
 
 1 Harkins v. Standard Sugar Refinery, 122 Mass. 400. The court say, 
 further : " The workman takes the risks of the employment he engages 
 in, which include the results of negligence on the part of others engaged 
 in the same service ; and, where all furnish their own tools and are 
 engaged in a common employment, the workman takes the risk of the 
 negligence of his fellow-workmen in selecting and caring for his tools, as 
 well as in the use of them." 
 
 2 See Johnson v. Spear, 76 Mich. 139; Chicago, B. & Q. R. R. v. 
 Clark, 26 Neb. 645 ; Northern Pacific R. R. v. Herbert, 116 U. S. 650 ; 
 Niantic Coal Mining Co. r. Leonard, 126 III. 216; Chicago & Alton R. R. 
 V. House, 172 111. 601 ; Chicago & N. W. R. R. v. Gillison, 173 111. 264 ; 
 EUingson v. Chic. & Alton R. R., 60 Mo. App. 679 ; Stewart v. Philadel- 
 phia, W. & B. R. R., 17 Atl. Rep. 639 (Del. 1890) ; Richmond & Danville 
 R. R. V. Norment, 84 Va. 167. 
 
 * Marshall v. Stewart, 2 Macq. 20; Chicago & Northwestern R. R. v. 
 Bayfield, 37 Mich. 205 ; Ryan v. Fowler, 24 N. Y. 410; Chicago & North- 
 western R. R. V. Sweet, 45 111. 197 ; Schooner Norway v. Jansen, 52 
 m. 373; Strahlendorf v. Rosenthal, 30 Wis. 674; Perry ». Marshall, 25 
 Ala. 659. 
 
 * Per Waite, C. J., in Grand Trunk Railway of Canada v. Cummings, 
 106 U. S. 700. But see Whittaker v. Delaware & Hudson Canal Co., 49 
 Hun, 400. 
 
444 PERSONAL INJURIES. [CHAP. VII. 
 
 contract with his employee to use due and reasonable care to 
 make the employment safe. It is said : " The rule ... is 
 that the master is not responsible to one servant for the ill 
 consequences of the negligence of a fellow-servant, in the 
 course of the common employment. The reason for this rule 
 is, that, as the master cannot prevent carelessness in his ser- 
 vants, it is reasonable to presume each servant agrees to run 
 the risk of that which he knows in the nature of things to be 
 inevitable. But the servant does not agree to take the chance 
 of any negligence on the part of his employer ; and no case 
 has gone so far as to hold that where such negligence con- 
 tributes to the injury, the servant may not recover. . . . Con- 
 tributory negligence, to defeat a right of action, must be that 
 of the party injured." ^ And the obligation of the master may 
 be referred as well to the duty which every owner of property 
 is under towards those who come upon his premises, by his in- 
 vitation or procurement, to transact business with him.^ Thus 
 if the master was guilty of negligence in selecting, or retaining 
 in his employment, the fellow-servant of the plaintiff through 
 whose fault the accident happens,^ or if his negligence consists 
 in furnishing unsafe and inadequate means and appliances for 
 doing the work, and thereby the employee is injured, the mas- 
 ter is liable.* So where the negligence of the fellow-servant 
 is the cause of the existence of defects in machinery or ap- 
 pliances, by reason of which defects injury results to a fellow- 
 
 ' Paulmier v. Erie R. R., 34 N. J. L. 151, 155. See, also, Booth v. 
 Boston & Albany R. R., 73 N. Y. 38 ; Cone v. Delaware & Hudson Canal 
 Co., 81 N. Y. 206; Pantzear v. TUly Foster Iron Mining Co., 99 N. Y. 
 868; Perry v. Lansing, 17 Hun, 34; Busch v. Buffalo Creek R. R., 29 
 Hun, 112; Lofrano v. New York & Mt. Vernon Water Co., 55 Hun, 452; 
 Brodeur v. Valley Falls Co., 16 R. I. 448; Mulvey v. Rhode Island Loco- 
 motive Works, 14 R. I. 204; Fifield ». Northern R. R., 42 N. H. 225; 
 Crutchfield v. Richmond R. R., 76 N. C. 320; McMahon v. Hanning, 3 
 Fed. Eep. 353; Gray v. Philadelphia & Reading R. R., 24 Fed. Rep. 168; 
 Hunn r. Michigan Central R. R., 78 Mich. 513; Hinckley «. Horazdowsky, 
 133 111. 359 ; Cayzer v. Taylor, 10 Gray, 274. 
 
 « See §§ 3, 5, 11, ante. 
 
 ' See § 198, ante, and cases cited; Harper v. Indianapolis & St. L. 
 E. R., 47 Mo. 567; Chapman v. Erie Railway, 55 N. Y. 579. 
 
 * See § 192, ante, and cases cited; Le Clair v. St. Paul & Pacific R. E., 
 20 Minn. 9. 
 
§§ 215-216.] employer's liabiutt. 445 
 
 sei-vant, the master is liable,^ for it is his duty to keep such 
 machinery or appliances reasonably safe, and he cannot escape 
 this duty by delegating it to another.^ The rule would seem 
 to be that when the negligence of the fellow-servant is the 
 proximate cause of the injury complained of, it is necessary, 
 in order to charge the master, to show that he was negligent 
 in employing the fellow-servant ; but when the fault of the 
 fellow-servant is the remote cause, the defect for which he is 
 responsible being the proximate cause of the injury, the mas- 
 ter is responsible for the injurious consequences of the exist- 
 ence of the defect. The general rule stated is applicable even 
 when the risks are apparent, if the servant for any good reason, 
 as from his youth, inexperience, or incapacity, known to the 
 master, is incapable of appreciating them.^ 
 
 § 216. Rule illustrated in Rail'way Cases. — Applying the 
 general rule, where the plaintiff in the course of his employ- 
 ment as a locomotive engineer for the defendant was injured 
 by the collision of the train on which he was employed with 
 another train of the defendant, it was held that if the defend- 
 ant's negligence contributed to cause the injury the defendant 
 was liable therefor notwithstanding the contributing negli- 
 gence of the plaintiff's fellow-servant.* In accordance with 
 the rule, that the duty of a master to maintain machinery 
 
 1 Hough V. Texas & Pacific Railway, 100 U. S. 213 ; Ford v. Pitchbnrg 
 R. R., 110 Mass. 240; Holden v. Fitehburg R. R., 129 Mass. 268; Law- 
 less V. Connecticut River R. R., 136 Mass. 1. 
 
 ' See § 193, ante, and also Flike v. Boston & Albany R. R., 53 N. Y. 
 549; Booth v. Boston & Albany R. R., 73 N. T. 38; Fuller v. Jewett, 80 
 N. T. 46. 
 
 * Coombs V. New Bedford Cordage Co., 102 Mass. 572; Grizzle v. 
 Frost, 3 F. & F. 622 ; Bartonshill Coal Co. v. McGuire, 3 Macq. 300, and 
 see cases cited supra. 
 
 * Grand Trunk Railway of Canada v. Cumraings, 106 IT. S. 700, and 
 see Gray v. Philadelphia & Reading R. R., 24 Fed. Rep. 168. In the 
 latter case the plaintifE and the negligent fellow-servant were respectively 
 the fireman and engineer upon the defendant's locomotive, and it was 
 sought to apply to the case the exploded doctrine of "identification" 
 laid down in tte English case of Thorogood v. Bryan, 8 C. B. 115; see 
 §§ 104, 105, ante; but the court says that that case is in conflict with the 
 great preponderance of judicial opinion in this country. 
 
446 PERSONAL INJURIES. [CHAP. Til, 
 
 and appliances in proper repair for the protection of the em- 
 ployees operating them is a personal duty which cannot be 
 delegated so as to exonerate the master from liability for ac- 
 cidents arising from defects in such machinery which might 
 have been prevented by the exercise of due diligence on his 
 part,^ it was held, where a locomotive engineer was killed by 
 the explosion of a boiler which had been for some time out of 
 repair, which fact had been reported to the proper officer of 
 the corporation, that the defendant was not exonerated from 
 liability by the fact that it had not been negligent in its em- 
 ployment of a superintendent of repairs, or in omitting to 
 make proper regulations for the operation of the road, or by 
 the fact that the master-mechanic of the road had given direc- 
 tions for the thorough examination and repair of the engine, 
 and that the negligence which, in fact, caused the accident 
 was that of the mechanic directed to make the repairs, even 
 although such mechanic was to be taken to have been the 
 fellow-servant of the person killed.^ So it is held, if the super- 
 intendent of a railroad has made an order as to the manage- 
 ment of a particular train, which order is unreasonable and 
 the enforcement thereof dangerous to an employee who is 
 charged with carrying it out, and who is injured in attempting 
 to carry it out, that the railroad is responsible although the 
 negligence of a fellow-servant of the plaintiff was a contribut- 
 ing cause of the injury.^ It has been held that permission 
 given by a railway company to one of its engineers to allow a 
 fireman to act as engineer, where he deemed the fireman com- 
 petent, made the company responsible for injuries suffered by 
 the fellow-servant of an incompetent fireman so acting; it 
 being the duty of the company to see that only competent and 
 trustworthy engineers were employed upon its road, which 
 duty it could not avoid by delegating it.* It is negligence for 
 a railroad corporation to start a train without sufficient em- 
 ployees to man it, and if by reason of such negligence an 
 
 1 See §§ 193, 194, ante. 
 
 ^ Fuller V. Jewett, 80 N. T. 46, 51, 52. See Ford v. Fitohburg R. R., 
 110 Mass. 240. 
 
 8 Pittsburg, C. & St. L. Railway v. Henderson, 37 Ohio St. 551. 
 * Harper v. Indianapolis & St. L. R. R., 47 Mo. 567. 
 
§ 216.J employer's liability. 447 
 
 employee on the train is injured the corporation is liable, 
 although the negligence of another train hand contributed to 
 the injury.^ In Massachusetts, it was held that if a railroad 
 corporation has suffered a structure, not actually in use for 
 the purposes of its business, to remain for an unreasonable 
 length of time, on land within its control, in such a position 
 by the side of the track as to be in danger of being thrown 
 down by oi'dinary natural causes so as to interfere with the 
 safe passage of its trains, the structure is, in law, a nuisance, 
 and the corporation is liable to servants employed upon its 
 passing trains as well as to other persons, for injuries result- 
 ing from its own neglect in not removing the structure, or in 
 not guarding against the danger of allowing it to remain in 
 such a place, whether it was originally put there by other 
 servants of the corporation or by strangers, and independently 
 of the question of negligence on the part of those who placed 
 it there.2 
 
 1 Flike V. Boston & Albany K. R., 53 N. Y. 549, 554, 555, and see 
 Booth V. Boston & Albany R. R., 73 N. Y. 32. These cases arose out of 
 the same accident, and the negligence of the plaintiff complained of was 
 in starting a train with two brakemen instead of three. The court below 
 was asked to rule that if three brakemen had been provided to go with 
 the train, and if to start with two was negligence, still if the jury be- 
 lieved that the sub-conductor was instructed to report the absence of any 
 brakeman to the head conductor, and failed to do so, and started the train 
 with but two brakemen, this was the negligence of the conductor, for 
 which the defendant would not be answerable. The refusal to give this 
 ruling was justified upon the ground that, no matter whose immediate 
 negligence it was to start the train without a sufficient number of brake- 
 men, so doing was, in law, the negligence of the defendant for which it 
 was responsible whether to servants or third persons. Booth v. Boston & 
 Albany R. R., 73 N. Y. 38, 42. 
 
 2 Per Gray, C. J., in Holden v. Fitohburg R. R., 129 Mass. 268. In 
 this case, the court would seem to have intended to modify the rule 
 previously laid down in Massachusetts in the case of Ford v. Fitchburg 
 R. R., 110 Mass. 240, where it was said that " the rule of law which ex- 
 empts the master from responsibility to the servant for injuries received 
 from the ordinary risks of his employment, . . . does not excuse the em- 
 ployer from the exercise of ordinary care in supplying and maintaining 
 suitable instrumentalities for the performance of the work required. One 
 who enters the employment of another has a right to count on this duty, 
 and is not required to assume the risks of the master's negligence in this 
 respect." And the opinion in Holden v. Fitchburg R. R., apparently ac- 
 
448 PERSONAL INJURIES. [CHAP. VII. 
 
 (a) Who are Fellow- Servants. 
 
 § 217. General Rule ; Broad Constniction of, In England. — 
 In determining whether the master is liable for the negligence 
 of one of his servants by which another servant is injured, the 
 question is whether the negligent servant, in doing the act 
 complained of, was acting merely in the general scope of his 
 employment, with the plaintiff as his fellow-servant, or whether 
 the act was done as by one exercising the authority, and stand- 
 ing, pro hac vice, in the place of the master. In other words, 
 to charge the master it must appear that the act was done, not 
 by a fellow-servant, but by one standing between the parties 
 in the relation, as it has been called, of a vice-principal.^ If 
 the act was so done, the rule of respondeat superior applies 
 and the master is answerable. It is not the rank of the em- 
 ployee, nor his authority over other employees, but the nature 
 of the duty which he is bound to perform, which determines 
 whether he is a fellow-servant or a vice-principal.^ So it is 
 not necessary for the master, in order to avoid liability, to 
 show that the servant receiving the injury and the servant by 
 whose fault it was received were in the same degree and kind 
 of employment, so long as both were, in fact, the servants of 
 a common master and were acting together in carrying out a 
 common object.* In a case in which it was held that a work- 
 
 cepts, as establishing tlie rale of law upon the subject, the expressions of 
 Lord Cairns in Wilson v. Merry, L. R. 1 H. L. So. 226, 232, that " what 
 the master is bound to his servant to do, in the event of his not personally 
 superintending and directing the work, is to select proper and competent 
 persons to do so, and to furnish them with adequate materials and re- 
 sources for the work. When he has done this, he has . . . done all that 
 he is bound to do." But it is to be observed that the view of the English 
 court upon this subject, so far as it embodies the doctrine that, as to 
 means and appliances, the duty of the master is at an end so soon as he 
 has furnished these of suitable character, in the first instance, is not 
 accepted by the later cases in Massachusetts. See Rogers v. Ludlow 
 Manuf'g Co., 144 Mass. 198; Ryalls v. Mechanics' Mills, 150 Mass. 188, 
 194, as cited § 193, ante. 
 
 1 See §§ 220 et seq., poit. 
 
 ' Lindvall t». Woods, 41 Minn. 212. 
 
 » Feltham v. England, 2 Q. B. 33 ; Warner w. Erie R. R., 39 N. T. 
 468; Malone v. Hathaway, 64 N. Y. 5; Stringham v. Stewart, 111 N. Y. 
 
§§ 216-217.] employer's liability. 449 
 
 man in a factory and the superintendent of it were fellow- 
 servants, it was said : " It cannot affect the principle that the 
 duties of the superintendent may be different, and perhaps 
 may be considered as of a somewhat higher character than 
 those of the plaintiff ; inasmuch as they are both the servants 
 of the same master, . . . are engaged in the accomplishment 
 of the same general object, are acting in one common service, 
 and derive their compensation from the same source." ^ The 
 master's exemption from liability rests upon the consideration 
 that the implied contract of service does not extend to indem- 
 nify the employee against the negligence of any except the 
 master himself, and the separation of the employment into 
 different departments cannot create a liability not intended by 
 the implied contract.^ So, in order to charge the master, it is 
 not sufficient merely to sliow that the servant whose negli- 
 gence causes the injury is a sub-manager or foreman of higher 
 grade or greater authority than the plaintiff.* Thus the fact 
 
 188; Judson v. Olean, 116 N. T. 655; Nugent v. Atlas Steamship Co., 51 
 Hun, 306 ; Coyne v. Union Pacific R. R., 133 U. S. 370; Gilman v. East- 
 ern R. R., 10 Allen, 233 ; Noyes v. Smith, 28 Vt. 59 ; Fifield v. Northern 
 R. R., 42 N. H. 225; Buzzell v. Laconia Manufg Co , 48 Maine, 113; 
 Hayden v. Smithville Manufg Co., 29 Conn. 548, and see cases cited 
 infra. 
 
 1 Albro V. Agawam Canal Co., 6 Cush. 75, and see Doughty v. Penob- 
 scot Log Driving Co., 76 Maine, 143; Cassidy v. Maine Central R. R., 76 
 Maine, 488; Conley v. Portland, 78 Maine, 217. 
 
 2 Farvrell v. Boston & Worcester R. R., 4 Met. 49. 
 
 8 See Gallagher v. Piper, 16 C. B. (n. s.) 669 ; Howells v. Landore 
 Steel Co., 10 Q. B. 62 ; Wilson n. Merry, 1 H. L. 326; Zeigler v. Day, 123 
 Mass. 152; O'Connor v. Roberts, 120 Mass. 227; Summersell v. Fish, 117 
 Mass. 312 ; Blake v. Maine Central R. R., 67 Maine, 60 ; Lawley v. An- 
 droscoggin R. R., 62 IMaine, 463 ; Hoffnagle v. New York Central & Hud- 
 son River R. R., 55 N. Y. 608 ; McAndrews u. Burris, 30 N. J. L. 117 ; 
 Shauck V. Northern Central R. R., 25 Md. 462; Peterson «. Whitebreast 
 C. & M. Co., 5 Iowa, 673 ; McLean v. Blue Point Gravel Mining Co., 51 
 Cal. 116; Chicago & Alton R. R. v. Murphy, 53 111. 336; Valtez v. O. & 
 M. Railway, 85 111. 500. In Chicago & Northwestern R. R. v. Moranda, 
 93 111. 302, it was held that to constitute servants of the same master 
 fellow-servants it is not enough that they were engaged in doing parts of 
 some work or in the promotion of some enterprise carried on by the mas- 
 ter, not requiring co-operation, nor bringing the servants together or into 
 such personal relations that they could have exercised an influence one 
 
 29 
 
450 PERSONAL INJDEIES. [CHAP. VIL 
 
 that one is foreman of a gang of laborers, and as such receives 
 higher compensation than the rest of the gang, does not pre- 
 vent the relation of fellow-servant from existing as between 
 him and the other laborers. But if the particular act done is 
 one that the law implies a contract duty on the part of the 
 employer to perform, then the person performing it is a vice- 
 principal as to such act, and the common employer may be 
 liable for the injurious consequences of it.^ And so a fore- 
 man may be, as to some acts, a fellow-servant of the other 
 laborers, and, as to others, a vice-principal.^ And a master is 
 not responsible to an employee for the negligent act of a com- 
 petent and proper foreman to whom there has been no dele- 
 gation of power and control of the business or a branch 
 thereof, but who is charged, simply, with special duties which 
 he performs under the direction of the master, who retains 
 the general control and supervision.^ Thus one who is called 
 a foreman, but is one of a separate gang engaged in the same 
 work as that in which an injured workman is engaged, and 
 who has nothing to do with supplying or controlling the ap- 
 paratus by which the workman was injured, and who is him- 
 self subject to the directions of a general foreman, is a 
 fellow-servant of the injured workman.* It is generally con- 
 
 upon the other to induce proper caution in respect of their mutual safety, 
 — but it is essential, in order to constitute the relation, that the servants 
 should actually co-operate, at the time of the injury in the particular busi- 
 ness in hand, or that their customary duties should bring them into habit- 
 ual association, so that proper caution would be likely to result therefrom. 
 And the court disapproves the expression in Chicago & Alton R. R. v. 
 Murphy, and Valtez v. O. & M. Railway, supra, that " when the ordinary 
 duties and occupations of the servants of a common master are such that 
 one is necessarily exposed to hazard by the carelessness of another, they 
 must be regarded as fellow-servants " within the meaning of the rule. 
 See also Chicago Dredging & Dock Co. v. McMahon, 30 111. App. 358. 
 
 1 Sullivan v. New York, N. H. & H. R. R., 62 Conn. 209. See Noyes 
 V. Ward, 102 Cal. 389; Nixon v. Selby Smelting Co., 102 Cal. 458. 
 
 " Ohio & Miss. R. R. v. Stein, 140 HI. 61. 
 
 « Malone v. Hathway, 64 N. Y. 5; Duffy v. Upton, 113 Mass. 544 ; 
 Benson v. Goodwin, 147 Mass. 287; Moody u. Hamilton Manuf'g Co., 159 
 Mass. 70. 
 
 * Kenny v. Cunaxd Steamship Co., 55 N. Y. S. C. 558. See, also, 
 Bergquist v. Minneapolis, 42 Minn. 471 ; Quebec Steamship Co. v. Mer- 
 
§ 217.] employee's liabiutt. 451 
 
 sidered that when the facts are undisputed the question 
 whether the relation of fellow-servant exists is one of law ; 
 or, if the facts are controverted, a mixed question of law and 
 fact. What the servant is employed to do is a question of 
 fact ; the capacity in which he does it is an inference of law. 
 When there is any question as to the facts these are to be left 
 to the jury, with instructions as to the legal inferences to be 
 drawn from the facts which shall be found.^ It is appre- 
 hended that in these cases, as in others, the burden of proof 
 remains with the plaintiff throughout to show the facts essen- 
 tial to the maintenance of his case.^ It is to be observed that 
 
 chant, 133 U. S. 375 ; Kinney v. Corbin, 182 Penn. St. 341 ; Adams ». 
 Iron Cliffs Co., 78 Mich. 271 ; Johnson v. Ashland Water Co., 77 Wis. 
 51; Sayward». Carlson, 28 Pac. Rep. 880 (Wash. 1890); Niantic Coal& 
 Mining Co. v. Leonard, 25 HI. App. 95,126 111. 216; Kligel v. WeiselCo., 
 84 Wis. 148 ; Stutz v. Armour, 84 Wis. 623 ; Schroeder v. Flint & P. M. 
 R. R., 103 Mich. 213 ; O'Brien v. Am. Dredging Co., 58 N. J. L. 291 ; 
 Gilmore v. Oxford Iron Co., 55 N. J. L. 39 ; McLaughlin v. Camden Iron 
 Works, 60 N. J. L. 557; Cleveland, C. C. & St. L. R. R. v. Brown, 18 
 U. S. App. 10 ; Central R. R. v. Keegan, 160 U. S. 259 ; The Persian 
 Monarch, 14 U. S. App. 158. 
 
 1 See Johnson v. Boston Tow Boat Co., 135 Mass. 209 ; McGinty v. 
 Athol Reservoir Co., 155 Mass. 183. A contrary doctrine, however, ap- 
 pears to have been held in Illinois, see Chicago & Alton R. R. v. Kelly, 
 127 lU. 637, and the later cases in that State hold that while the definition 
 of the words " fellow-servant " is for the court, as matter of law, the ques- 
 tion, in each case, whether the relation exists is always one of fact. Lake 
 Erie & Western R. R. v. Middleton, 142 lU. 550, explaining Chicago & 
 N. W. R. R. V. Moranda, 108 HI. 576 ; Wenona Coal Co. v. Holmqnist, 
 152 m. 581 ; Louisville, E. &c. R. R. v. Hawthorn, 147 111. 226 ; Spring- 
 side, &c. Co. V. Grogan, 169 lU. 50. And a like rule is held in Texas. 
 Mexican National R. R. b. Finch, 8 Tex. Civ. App. 409. Under the 
 fellow-servant act of Texas, Laws, 1893, p. 120, employees, in order to be 
 fellow-servants, must be in a common service, in the same department, of 
 the same grade, working together, at the same time and place, and to a 
 common purpose. See Galveston, H. & San Ant. R. R. v. Crawford, 9 
 Tex. Civ. App. 245 ; San Ant. & Aransas Pass. R. R. v. Harding, 11 Tex. 
 Civ. App. 497, Missouri, Kansas, &c. R. R. i: AVhitaker, 11 Tex. Civ. 
 App. 668. This act does not apply to street railways. Riley w. Galveston 
 City Railway, 13 Tex. Civ. App. 247. 
 
 » See § 111, ante. But in Haley t>. Western Transit Co., 45 N. W. 
 Rep. 16 (Wis. 1890), it was held that the negligence whereby an employee 
 was injured was to be presumed to be that of the defendant's agent. 
 
452 PEESONAL INJUEIE8. [CHAP. VII. 
 
 the English courts are disposed to give to the ordinary rule 
 which absolves the master from liability for injuries suffered 
 by one servant through the fault of another engaged in the 
 same employment, a broader application than is sanctioned by 
 the later American cases on this subject. In a leading case, 
 Lord Cairns, after laying down the rule that the master is 
 only obliged to select suitable servants in the first instance, 
 and provide suitable appliances for doing the work, being 
 thereafter relieved from any duty of supervision (a doctrine 
 which as to machinery and appliances, at least, is controverted 
 in several well-considered American cases),^ says: "If the 
 persons . . . selected [as servants] are guilty of negligence, 
 this is not the negligence of the master ; and if an accident 
 occurs to a workman to-day in consequence of the negligence 
 of another workman, skilful and competent, who was for- 
 merly, but is no longer, in the employment of the master, the 
 master is, in my opinion, not liable, although the workmen 
 cannot technically be described as fellow-workmen." And so 
 it was held in the same case to be not material that the ser- 
 vant who had been guilty of negligence in setting up a de- 
 fective scaffolding in a mine, was not actually in the same 
 service at the time when a miner was killed by reason of the 
 defect in the scaffolding. And it was held further that it was 
 not material whether or not the scaffolding had been com- 
 pleted before the person killed entered upon his employment.^ 
 And it appears to be held broadly in England that no matter 
 how far superior the rank of the negligent person may be, he 
 is still, for the purpose of fixing liability, to be considered as 
 the fellow-workman of the injured employee.^ 
 
 rather than that of a fellow-servant. In an action by a servant against his 
 master for personal injuries, sustained in consequence of the negligence 
 of the latter, there is no presumption of negligence from the mere fact of 
 the occurrence of the injury. See §§ 111, 111 a, ante ; Foss v. Baker, 62 
 N. H. 247, criticising White v. Concord K. R., 30 N. H. 188. 
 
 1 See § 193, ante. 
 
 ^ Wilson V. Merry, L. R. 1 H. L. So. 326. See comments upon this 
 case in Johnson v. Lindsay (1891), A. C. 371, 386. 
 
 ' See Wilson v. Merry, svpra; Howells v. Landore Steel Co., L. R. 10 
 Q. B. 62, 44 L. J. Q. B. 25 ; Leddy v. Gibson, 11 M. (Scot) 304 ; Hall v. 
 Johnson, 34 L. J. Ex. 222 ; Conway v. Belfast, &c. R. R., 11 Ir. C. L. R. 
 
§§ 217-218.] employer's uabujtt. 453 
 
 § 218. As to Subdivisions of Zjmployiiient : ninstrations of 
 the Rule. — It is held, generally, that the fact that the employ- 
 ments in which the servants are respectively engaged are dif- 
 ferent in kind may not, of itself, prevent them from standing 
 as to each other in the relation of fellow-servants ; so long as 
 they work under a common superior, and the kind of work 
 performed by each of them, respectively, is designed and im- 
 mediately directed towards producing a common result.^ But, 
 while the rule of law governing the cases is simple in its 
 statement, its application to the varying circumstances of dif- 
 ferent cases has resulted in much apparent diversity in the 
 reported cases. By the application of the general rule, it is 
 held that a mate on a vessel and a common sailor, employed 
 by the same master in a common service, are feUow-servants ; ^ 
 
 345 ; Feltham v. England, L. R. 2 Q. B. 33, 36 L. J. Q. B. 14; Searie r. 
 Lindsay, 31 L. J. C. P. 106; GaUagher v. Piper, 33 L. J. C. P. 329; and 
 apparently contra, Kamsay v. Quinn, 8 Ir. C. L. R. 322. 
 
 1 Gulf, C. & S. F. R. R. V. Blohn, 39 Fed. Rep. 18. See cases cibed 
 supra ; Chicago & Northwestern R. R. v. Moranda, 93 111. 302, as cited 
 § 217, ante; Cadden ». American Steel Barge Co., 88 Wis. 409. 
 
 * Benson r. Goodwin, 147 Mass. 237 ; Olsen v. Clyde, 32 Hnn, 425 ; 
 Halverson v. Xisen, 3 Sawyer, 562 ; The Egyptian Monarch, 36 Fed. Rep. 
 775; The City of Alexandria, 17 Fed. Rep. 390. See also Malone v. 
 Western Transportation Co., 5 Biss. 315 ; Thompson v. Herrman, 47 
 Wis. 602 ; Matthews v. Case, 61 Wis. 491 (where it is held that the mas- 
 ter and mate of a vessel are fellow-servants as being engaged in a common 
 employment) ; Loughlin v. State, 105 N. Y. 159. In the latter case it 
 was held, the plaintiff, an employee of the State, being injored while en- 
 gaged under the direction of the captain of the " State boat " in digging 
 clay from a bank and landing it on the boat, the captain assisting, that 
 the plaintiff and the captain were fellow-servants. The same rule was 
 held as to the mate and stevedore of a vessel unloading. Haley v. West- 
 ern Transit Co., 45 N. W. Rep. 16 (Wis. 1890). In Gabrielson r. Waydell, 
 135 X. T. 1, it was held by a majority of the court that the master and 
 seamen are fellow-servants although of different grades, that for neglect in 
 the line of his duty the master is personally liable; and that his misconduct 
 is a risk assumed by the seamen : so that the owners of the vessel are not 
 liable in damages for the wilful and malicious acts of its master in as- 
 saulting and injuring a seaman on the high seas, since such an act, being 
 of a criminal natnre, is not in violation of any duty imposed on the 
 owners by maritime law, and the doctrine of respondeat superior does not 
 apply. But see The Benefactor, 28 U. S. App. 424 ; The Oregon, 48 U. 
 S. App. 430. As to the rights of a seaman injured upon a ship on the 
 
454 PBESONAL INJURIES. [CHAP. VII, 
 
 and so are the captain of a steam-tug, engaged in hauling a 
 vessel up to a grain-elevator, to be loaded with grain, a work- 
 man employed at the elevator to feed grain into the hoppers ; ^ 
 or the engineer on a steam vessel and a coal trimmer ; ^ or a 
 superintendent who sets up a derrick and the workman who 
 operates it ; ^ or two workmen employed in unloading a car, 
 although one of them exercises some degree of supervision 
 over the other;* or a founder in a blast-furnace and an 
 engineer whose business it is to move trains on the furnace 
 tracks, as this may become necessary in the conduct of the 
 business.^ By an extreme application of the rule, it has been 
 held that an engineer and conductor on different trains of the 
 
 high seas, as against the ship, the following rules are laid down : (1) A 
 claim by a seaman to recover damages for injuries received on board ship, 
 on the high seas, through the negligence of others of the ship's company, 
 is governed by the rules of the maritime law rather than of the municipal 
 law, and the analogies of the latter are not necessarily applicable to the 
 former. (2) The navigation of a ship constitutes one common employ- 
 ment. Neither the vessel nor her owners, therefore, are liable, by the 
 municipal law, for injuries happening to a seaman through the negligence 
 of his associates in the performance of their ordinary duties. (3) By the 
 maritime law, ancient and modern, a seaman, in case of any accident re- 
 ceived in the service of the ship, is entitled to medical care, nursing, and 
 attendance, and to cure, as far as cure is possible, at the expense of the 
 ship, and to wages to the end of the voyage, and no more. (4) This right 
 exists without reference to any question of ordinary negligence of himself 
 or his associates, and is neither increased nor diminished by the one or 
 the other. (5) The only qualification of tliis rule arises from the wilful 
 or gross misconduct of the seaman or his associates, in which case the ex- 
 pense incurred in behalf of the injured seaman may be charged against 
 the wages of the wrong-doer. The City of Alexandria, 17 Fed. Rep. 390, 
 and see Reed v. Canfleld, 1 Sumn. 195; The Ben Flint, 1 Abb. (U. S.) 
 126 ; The Neptune, 1 Pet. Adm. 142 ; The Nassau, 41 U. S. App. 27 •, 
 The Louisiana, 41 U. S. App. 224 ; Nevitt v. Clarke, 01c. 316 ; Laws of 
 Oleron, § 6 ; Wisbuy, § 18 ; 1 Malloy, 351. In The City of Alexandria, 
 supra, it is said that the cases of The Chandos, 4 Fed. Rep. 645 ; The 
 Marcella, 1 Woods, 302 ; The D. S. Gage, 1 Woods, 401 ; Thompson ». 
 Hermann, 47 Wis. 602, are not in conflict with the above rules. 
 
 1 Baltimore Elevator Co. v. Neal, 65 Md. 438. 
 
 2 Mellen v. Wilson, 159 Mass. 88. 
 
 ' McGinty v. Athol Reservoir Co., 155 Mass. 183. 
 
 * Howard v. Hood, 155 Mass. 391. 
 
 « Adams v. Iron Cliffs Co., 78 Mich. 271. 
 
§ 218.] employer's liability. 465 
 
 same road, are fellow-servants ; ^ and so a brakeman on a reg- 
 ular train and the conductor of a '■ wild train," on the same 
 road ; * and a day laborer, working as a section boss or fore- 
 man on the line of the road, and the conductor and engineer 
 of a train running upon it ; ^ and the conductor of a freight 
 train and a brakeman who, under the conductor's direction, 
 is assisting in unloading freight ; * and a fireman and a traia 
 despatcher employed on the same railroad.^ It seems to be 
 considered, generally, when the contract between a railway 
 corporation and its employee provides that the former shall 
 transport the latter to and from his place of labor, that the 
 employee and the trainmen of the trains on which he ridea 
 are fellow-servants ; ® and it was held that a railway con- 
 ductor, conveyed over the road to the place where he was to 
 take chai^ of his train, was a fellow-servant of the employees 
 of the road who were running the train.' But it is held, and 
 it would seem with good reason, that if the employment for 
 which the servant contracted was completed, and he is, 
 by arrangement or permission, being transported to his home 
 upon one of the defendant's trains, he is not, while being so 
 transported, a fellow-servant of the trainmen.* A section 
 
 1 Oakes v. Mase, 165 U. S. 363. 
 
 s Xortiiern Pacific R. R. r. Poirier, 167 U. S. 4S. 
 
 » Xorthem Pacific R. R. t. Hambley, 154 U. S. 349. See Omaha & 
 R. V. R. R. p. Krayenbhnl, 48 Xeb. 553 ; McKenna r. Mo. Pac. R. R., 54 
 Mo. App. 161 ; Keown v. St. Lonis Railway, 141 Mo. 36 ; § "J-Jo, post. 
 
 * LaPierre i. Chicago & G. T. R. R , 99 Mich. 212. See Wooden v. 
 Western N. T. te. R. R., 147 N. Y. 508. 
 
 • Millsaps V. Louisville, X. O. & T. R. R., 69 Miss. 42-3. 
 
 s Ross r- Xew York Central & H. R. R. R., 74 X. Y. 617 ; McQueen r. 
 Central Branch Union Pacific R. R., 30 Kan. 6S9 ; Tunnoy r. Midland R. 
 R., 1 C. P. 291. 
 
 ' Manville p. Cleveland & Toledo R. R., 11 Ohio St. 417. See Doyle 
 V. Fitchburg R. R., 162 Mass. 66, as cited § 116, ante. 
 
 8 Baltimore & Ohio R. R. r. State, 33 ild. 542 ; State r. Western 
 Maryland R. R., 63 Md. 433; O'Donnell r. Allegheny R. R., 50 Penn. St. 
 490 (see O'Donnell r. All^heny Valley R. R., 59 Penn. St. 239) ; Tunnoy 
 r. Midland R. R., 1 C. P. 291. Where a common laborer on a railroad, 
 while riding gratis on a gravel train to his place of labor, was injured by 
 the negligence of the employees of the railroad in charge of the train, it 
 was held that if, on tiie one hand, he was by the terms of his contract to 
 be transported to and from his place of labor, then the injury was re- 
 
456 PERSONAL INJURIES. [CHAP. VII. 
 
 master and a section hand working under him, both being 
 engaged in the same manual labor, are held to be fellow- 
 servants,^ and so are locomotive engineers, firemen, and 
 brakemen, employed upon the same train.^ Switchmen hav- 
 ing charge of the track over which a train runs are held to be 
 the fellow-servants of the trainmen,^ but it was held that a 
 railroad-yard switchman and a locomotive engineer employed 
 by the same corporation were not fellow-servants.* It has 
 been held that a bridge watchman and the conductor and en- 
 gineer of a train on the road were not fellow-servants, they 
 having different duties and being responsible to different 
 managers,® and for the same reason, that track repairers and 
 train hands are not fellow-servants,® and that a brakeman was 
 not the fellow-servant of a car-inspector.'' But it was held 
 that a car-inspector and the conductor of a train which the 
 former was engaged in inspecting when the accident in which 
 
 ceived while he was in the service of the railroad; and, on the other hand, 
 if the contract did not include transportation, then such transportation 
 was a permissive privilege granted to the laborer, of which he availed 
 himself to facilitate his service, and which was so connected with it, and 
 with the relation of master and servant, as to bring the case within the 
 general rule. Gillshannon ». Stony Brook R. R., 10 Cush. 228. It was 
 held that a railway employee, going on board a " pay-train " for the sole 
 purpose of receiving his pay, was entitled to the same protection as a pas- 
 senger. Louisville & Nashville R. R. v. Stacker, 86 Tex. 343. 
 
 1 LaGrove v. Mobile & Ohio R. R., 7 So. Rep. 432 (Miss. 1890). 
 But see Hutson v. Mo. Pacific R. R., 50 Mo. App. 300. 
 
 " Gulf, C. & S. F. R. R. V. Farmer, 73 Tex. 637 ; Parrisho. Pensacola, 
 &c. R. R., 28 Fla. 251; So. Florida R. R. v. Weese, 32 Fla. 212; So. 
 Florida R. R. v. Price, 32 Fla. 46. 
 
 » Farwell v. Boston & Worcester R. R., 4 Met. 55. 
 
 * Louisville & Nashville R. R. v. Sheets, 13 S. W. Rep. 248 (Ky. 1890). 
 8 Pike V. Chicago & Alton R. R., 41 Fed. Rep. 95. 
 
 • Union Pacific R. R. v. Erickson, 41 Neb. 2 ; Missouri Pac. R. R. t>. 
 Bond, 2 Tex. Civ. App. 104. But a car-repairer and yard switchman 
 were held to be fellow-servants. Smith v. Chic, M., St. P. R. R., 91 Wis. 
 508 ; and so a car-repairer and car-inspector. Fordyce v. Briney, 58 Ark. 
 206. It is held that a car-repairer employed in the railway shops is not 
 the fellow-servant of a brakeman at work on the road. Missouri Pacific 
 R. R. 0. Dwyer, 36 Kan. 58. 
 
 ' Daniels v. Union Pacific R. R., 23 Pac. Kep. 762 (Utah, 1890) ; Cin- 
 cinnati, H. & D. R. R. V. McMullen, 117 Ind. 439. See § 223, post. 
 
§ 218.] employer's liabiutt. 457 
 
 the conductor was injured occurred, the conductor knowing of 
 the inspection, were fellow-servants.* A telegraph operator 
 who is charged with the duty of signalling trains and directing 
 the order in which these are to proceed from several tracks 
 to a single main track, according to a system of rules pro- 
 vided for his direction by the common superior, has been held 
 
 1 Whitmore e. Boston & Maine R. R., 150 Mass. 477. In Warburton 
 V. Great Western Railway, L. R. 2 Exch. 30, it was held that a railway 
 porter employed at a station and an engineer in charge of a locomotive 
 running regularly on the line were not fellow-servants. It is to be ob- 
 served that the earlier Massachusetts cases appear to apply the general 
 rule very broadly in favor of the master, in railway cases, considering ap- 
 parently, that all persons who are engaged in f urihering in any way the 
 general object for which a railroad is operated ; that is, the conveyance 
 of freight and passengers, are, as being so engaged, fellow-servants, no 
 matter how dissimilar or divergent may be their respective lines of duty. 
 Thus in Gillshannon r. Stony Brook R. R., 10 Cush. 228, and Oilman v. 
 Eastern Railroad, 11 Gray, 466, it is held that a carpenter engaged in 
 repairing structures on the line of a railroad is a fellow-servant of the 
 trainman on a train on which he travels to his work ; but see, apparently 
 contra, Hobson v. New Mexico & Arizona R. R., 11 Pac. Rep. 545 (Ariz. 
 1890). So it has been held, in Massachusetts, that a brakeman employed 
 on a railroad and pei-sons engaged in widening the track are fellow-ser- 
 vants. Holden < . Fitchburg R. R., 129 Mass. 268 ; and see Gilman v. 
 Eastern R. R., 10 Allen, 233; Dodge v. Boston & Albany R. R., 155 
 Mass. 44S. See also Elliot r. Chicago, Milwaukee & St. P. R. R., 5 Dak. 
 523 ; St. Louis, A. & T. R. R. v. 'Welch, 72 Tex. 298. But it is held else- 
 where that trackmen are not fellow-servants of those in charge of trains, 
 Howard r. Delaware & Hudson Canal Co., 40 Fed. Rep. 195; Sullivan v. 
 Missouri Pacific R. R., 97 Mo. 113 ; Fagundes v. Central Pacific R. R., 
 79 Cal. 97, unless such workman had themselves undertaken some duty 
 in the management of the train. Casey v. Louisville & Nashville R. R., 
 84 Ky. 79. So it is held that a contractor to furnish coal in receptacles pro- 
 vided for that purpose along the line of the road is not the fellow-servant 
 of a trainman on its trains. Union Pacific R. R. v. Billeter, 44 N. E. 
 Rep. 483 (Neb. 1890). But it was considered that persons constructing 
 switches on the road were fellow-servants of an apprentice in the railroad 
 shops, acting as foreman. King v. Boston & Worcester R. R., 9 Cush. 
 112. In Illinois, it has been held that the question whether the injured 
 person, a section-hand engaged in loading iron on a car, was, at the time 
 of the accident, a fellow-servant with those in charge of the train which 
 injured him, and on which he had ridden to his work, was one of fact for 
 the jury, and that a finding that they were not fellow-servants was wai» 
 ranted by the evidence. Chicago & Alton R. R. v. Kelly, 127 111. 637. 
 
458 PEESONAL INJURIES. [CHAP. VII. 
 
 to be a fellow-servant of the train employees and engineer of 
 one of the trains subject to such directions.' So the employee 
 of a railroad whose duty it is to watch for and signal trains is 
 ordinarily the fellow-servant of the trainmen on such trains.^ 
 A yard-inspector and a yard-master of a railroad, whose re- 
 spective duties are different in kind, but complementary to 
 each other, and who are subject to a common superior, are 
 fellow-servants,^ and so are a brakeman and one whose duty 
 it is to fill the sand-box on the locomotive.* It has been held 
 broadly that a servant who sustains an injury from the negli- 
 gence of a superior agent acting as boss or foreman of a gang 
 of laborers of whom such servant is one, cannot maintain an 
 action against the common employer for injuries sustained 
 through the negligence of such foreman, although the plaintiff 
 was subject to the control of the foreman, and could not guard 
 against his negligence.^ But it is apprehended that this is 
 not the rule when the negligence of the foreman was in re- 
 
 1 Monaghan v. New York Central & H. R. R. R., 45 Hun, 113 ; Mc- 
 Caig V. Northern Pacific R. R., 42 Fed. Rep. 383; Baltimore & Ohio R. 
 R. r. Campbell, 31 U. S. App. 213; Oregon Short Line v. Frost, 44 U. 
 S. App. 606. But it was held that a telegraph operator was not the fel- 
 low-servant of a brakeman who was injured by a defect in a bridge, 
 through the negligence of the operator in not reporting the defect to the 
 superintendent. Gulf, C. & S. F. R. R. v. Blohn, 39 Fed. Rep. 18. A 
 station agent and telegraph operator were held to be fellow-servants of 
 the conductor of a train. Dealey v. Philadelphia, &c. R. R., 3 Cent. 
 Rep. 112. 
 
 2 Murray v. St. Louis, C. & W. R. R., 98 Mo. 573 ; Cincinnati, N. O. 
 & T. P. R. R. V. Clark, 57 Fed. Rep. 125, 6 C. C. A. 281. 
 
 « St. Louis, Iron Mt. & Southern R. R. v. Rice, 51 Ark. 467. 
 
 * Louisville, N. O. & T. R. R. v. Petty, 67 Miss. 255. It was held 
 that the yard-master of a railroad company who acts temporarily as the 
 engineer of a switching-engine in the defendant's yard, is not, as to the 
 fireman on such engine, a fellow-servant. Hardy v. Minneapolis & St. 
 L. R. R., 36 Fed. Rep. 657. A brakeman and a car-inspector, jointly 
 charged with the duty of inspecting foreign cars, are fellow-servants. 
 Dewey v. Detroit, G. H. & M. R. R., 97 Mich. 329. 
 
 ' Keenan v. New York, L. E. & W. R. R., 145 N. Y. 190; Deavers v. 
 Spencer, 25 U. S. App. 411 ; Balch v. Haas, 36 U. S. App. 693. See, 
 also, Minneapolis u. Lundin, 19 U. S. App. 425; What Cheer Coal Co. ii. 
 Johnson, 12 U. S. App. 490 ; Kansas & A. Valley R. R, v. Waters, 36 U. 
 S. App. 31 ; Sherman v. Rochester & S. R. R., 17 N. Y. 153 ; Laughlin 
 V. State, 105 N. Y. 159. 
 
§§ 218-219.] employer's liability. 459 
 
 spect of some duty which it was the duty of the common 
 employer to see performed, and the performance of which he 
 had delegated to the foreman.^ 
 
 § 219. Servants 'v^orking under Contracts 'with Different Em- 
 ployers. — Although two persons are engaged in a common 
 employment, or an employment directed to the same object, 
 yet if they are employed by different masters they are not 
 fellow-servants in such a sense as to relieve the master of one 
 of them of responsibility for Injuries occasioned by the fault 
 of the other ; for the implied contract of indemnity in favor of 
 the master only exists as to the negligence of his- own ser- 
 vants.^ Thus where the plaintiff was injured while employed 
 upon a barge in lightering a steamship, by one of the hands 
 engaged upon the steamship in discharging her cargo, the 
 barge and steamship being owned by different persons by 
 whom, respectively, the two workmen were employed, it was 
 held that the plaintiff and the negligent servant of the owners 
 of the steamship were not fellow-servants.^ If one railway 
 company, by arrangement, runs its trains over the track of 
 another, the servants of either are not the fellow-servants of 
 those of the other.* And it is not material whether a contract 
 exists between the two carriers for the joint purpose of con- 
 veying passengers or goods, whatever effect the existence of 
 such a privity might have upon the liability of either, or both, 
 to passengers negligently injured in the course of transporta- 
 
 1 See §§ 217, ante, 220, 222, post, and cases cited. 
 
 2 Sullivan v. Tioga R. R., 112 N. Y. 643 ; Sanford v. Standard Oil 
 Co., 118 N. Y. 571 ; Nary v. New York, O. & W. R. R., 9 N. Y. Sup. N. 
 E. Rep. 153 (1890) ; Sawyer v. Rutland & Burlington R. R., 27 Vt. 370 ; 
 Catawissa R. R. v. Armstrong, 49 Penn. St. 186 ; Zeigler v. Danbury & 
 Norwalk R. R., 52 Conn. 543 ; Phil., W. & B. R. R. v. State, 58 Md. 372 ; 
 Robertson v. B. & A. R. R., 160 Mass. 191 ; Morgan v. Smith, 159 Mass. 
 570. See Moynihan v. Hills Co., 146 Mass. 586, 594, as cited, § 220, post. 
 
 « Svenson v. Atlantic Mail Steamship Co., 57 N. Y. 108. 
 
 * See cases cited, supra. An employee of a railroad, engaged in 
 delivering a car to another railroad on the tracks of the latter in the 
 regular course of business between the two railroads, is not a mere licensee, 
 and has the rights of one entering the premises of another by invitation. 
 Turner v. Boston & Maine R. R., 158 Mass. 261. 
 
460 PERSONAL INJURIES. [CHAP. VII. 
 
 tion;^ so long as the one carrier has, under the contract, 
 nothing to do with the employment or payment of the servants 
 of the other. So a switch-tender employed by a railroad cor- 
 poration on a portion of its track upon which it permits 
 another corporation to run trains is not a servant of the latter 
 corporation ; and an engineer of the latter corporation, who is 
 injured by the negligence of the switch-tender in performing 
 his duty, may maintain an action against the former corpora- 
 tion which employed the switch-tender.^ It was held, wliere 
 two railway corporations were engaged in carrying passengers 
 and merchandise over separate portions of an entire route of 
 travel, ran their trains so as to connect at a common terminus, 
 and sold tickets over the entire route, but the fares and freights 
 over each portion of the route were kept distinct, that there 
 was no such legal identity between the two corporations as 
 would make an employee of one of them the fellow-servant 
 of the employees of the other.^ It is to be observed that the 
 reason of the rule applies when servants of a common master 
 are employed upon works which are separate, and clearly 
 distinct, one from the other ; and in such a case the servants 
 respectively so employed are not fellow-servants of each other.* 
 The rule stated does not exclude the application of the general 
 principle that "When one person lends his servant to 
 another for a particular employment, the servant for anything 
 done in that particular employment must be dealt with as the 
 servant of the man to whom he is lent, although he remains 
 the general servant of the man who lent him.® Or that the 
 
 1 See §§ 4.6, 47, ante, and, also Nashville & Chattanooga R. K. v. Car- 
 roll, 6 Heisk. 347. 
 
 2 Smith V. New York Central & H. R. R. R., 19 N. Y. 127, 132. 
 
 ' Carroll v. Minnesota Valley R. R., 13 Minn. 30. See also Phillips v. 
 Chicago, M. & St. P. R. R., 46 Wis. 475. It has been held, in Illinois, that 
 where liwo sets of men employed by a railroad company while working at 
 their respective duties, are of necessity more or less in the way of and 
 crossing the lines of each other, the question where they are or are not 
 fellow-servants is one of fact for the jury. Chicago & Alton R. R. v. 
 Kelly, 25 111. App. 17 ; 127 111. 637. 
 
 * See Moynihan v. Hills Co., 148 Mass. 586, 594, as cited § 221, post. 
 
 » Per Cockburn, C. J., in Rourke v. White Moss Colliery, 2 C. P. D. 
 205, 209 ; Purnell v. Great Western Railway, 1 Q. B. D. 636 ; Hasty v. 
 Sears, 157 Mass. 123. 
 
§§ 219-220.] employer's liability. 461 
 
 servant, by submitting himself to the orders of another than 
 his master, may become, ipro hac vice, the servant of such 
 other, and so a fellow-servant of the servants of the latter.^ 
 But, generally, it will be for the defendant to show that such 
 relation of servant existed, as a defence. It is said : " I can 
 well conceive that the general servant of A. might, by 
 working towards a common end along with the servants of B. 
 and submitting himself to the control and orders of B., 
 become pro hac vice B.'s servant in such sense as not only 
 to disable him from recovering from B. for injuries sustained 
 through the fault of B.'s proper servants, but to exclude the 
 liability of A. for injury occasioned, by his fault, to B.'s own 
 workmen. In order to produce that result the circumstances 
 must ... be such as to show conclusively that the servant 
 submitted himself to the control of another person than his 
 proper master and either expressly or impliedly consented to 
 accept that other person as his master, for the purpose of the 
 common employment."^ 
 
 (b) Of the Doctrine of Vice-Principal. 
 
 § 220. Delegation of Authority : Effect of. — When a master 
 delegates to a servant duties which belong to himself, the ser- 
 vant will occupy the place of the master, not that of fellow- 
 servant with, other employees, and the master will remain 
 responsible for the negligence of the servant to whom his 
 authority is thus delegated, as if he were personally guilty of 
 such negligence.^ For, in such cases, the negligent servant is 
 
 1 Delaware, L. & W. R. R. v. Hardy, 59 N.'J. L. 35. 
 
 2 Per Lord Watson, in Johnson v. Lindsay (1891), A. C. 371, and see 
 Cameron v. Lysfrom (1893), A. C. 308. In the latter case it was held 
 that the servants of a stevedore, engaged in unloading a ship, and of the 
 master of the ship were not fellow-servants. 
 
 * Mulvey v. Rhode Island Locomotive Works, 14 R. I. 204 ; Brodenr r. 
 Border City Mills, 16 R. I. 448; Chicago, Milwaukee & St. P. R. R. v. 
 Ross, 112 U. S. 377 ; Alaska Co. v. Whelan, 29 U. S. App. 1 ; Wabash 
 & Western R. R. c. Brow, 31 U. S. App. 192 ; Louisville, N. A. & R. R. 
 V. Berkeley, 136 Ind. 181; New Pittsburg Coal Co. v. Peterson, 136 Ind. 
 398; Mattise v. Ice Co., 46 La. Ann. 1585; Union Pac. R. R. v. Doyle, 
 50 Neb. 556 ; and see Pantzear v. Tilly Foster Iron Mining Co., 99 N. T- 
 368; LofraDO v. New York & Mt. Vernon Water Co., 55 Hun, 452. 
 §§ 193, 194, ante, §§ 221, 222, post. 
 
462 PEESONAL INJURIES. [CHAP. VII. 
 
 the alter ego of the master, to whom the master has left every- 
 thing, and such servant stands between the parties in the 
 place of vice-principal, and his negligence is the negligence of 
 the master.* Thus where the middleman, or superior servant, 
 employs or discharges subalterns, and the principal withdraws 
 from the management of the business, or the business is of 
 such a nature that it is necessarily committed to agents, as in 
 the case of corporations, the principal is liable for the neglect 
 of duty of the sei'vant charged with the selection of other ser- 
 vants and the general conduct of the business committed to 
 him.2 There are cases in which the master cannot avoid his 
 duty of supervision by delegating it. Thus it is his duty to 
 see that the means for doing the work, and the place in which 
 it is to be performed, are reasonably safe, and he cannot de- 
 fend an action for injuries caused by a failure in this duty by 
 setting up that it was committed to a servant. And it has 
 already been stated that the later American cases hold that 
 the master's duty is not fulfilled when he has provided suit- 
 able appliances in the first instance, but that he is bound to 
 see that such appliances remain in a reasonably safe condi- 
 tion ; * so that when a master is unable to be present to see 
 that buildings and machinery are kept in order, and employs 
 another to do this, such employee is not the fellow-servant of 
 the other employees, but a vice-principal, for whose negligence 
 in this respect the master will be liable.* It is settled that a 
 
 1 Murphy v. Smith, 19 C. B. (n. s.) 361. 
 
 ^ Laning v. New York Central R. R. , 49 N. Y. 521, as explained in 
 Malone v. Hathaway, 64 N. Y. 5, 9. See also Grizzle v. Frost, 3 P. & F, 
 622; Allen v. New Gas Co., 1 Ex. D. 251 ; Corcoran v. Holbrook, 59 N. 
 Y. 517; Wright v. New York Central R. R., 28 Barb. 80; Munn v. Ori- 
 ental Print Works, 11 R. I. 187; Brabbits v. Chicago & Northwestern 
 B. B., 38 Wis. 289; Dobbin v. Richmond & Danville R. R., 81 N. C. 
 446 ; and apparently contra, Galveston, H. & S. F. R. R. v. Smith, 76 
 Tex. 611, as cited § 222, post. 
 
 « See §§ 193, ante, 222, post. 
 
 * Van Dusen v. Letellier, 78 Mich. 492; BalhofE v. Mich. Cent. R. R., 
 106 Mich. 606; Anderson v. Mich. Cent. R. R., 107 Mich. 59; Lund v. 
 Hersey Lumber Co., 41 Fed. Rep. 202; and see Rogers v. Ludlow 
 Manuf'g Co., 144 Mass. 198; Northern Pacific E. R. v. Herbert, 116 
 U. S. 650 ; Shanny v. Androscoggin Mills, 66 Maine, 420 ; Cincinnati, 
 H. & D. E. R. V. McMuUen, 117 Ind. 439, and other cases cited, § 193, 
 
§ 220.] employer's uabilitt. 463 
 
 person who is, in some things, a mere servant, may still be 
 the agent of the master to perform other duties which are 
 primarily personal to the master.^ On the other hand, if a 
 
 ante. So it is held where the plaintiff worked under the immediate su- 
 pervision and control of a superior, representing the master, and was not 
 himself clearly guilty of negligence in obeying the commands of the su- 
 perior, that the defendant was responsible for the negligent recklessness 
 of his representative in giving orders, in obeying which the plaintiff was 
 injured. Herriman v. Chicago & Alton R. R., 27 Mo. App. 435. 
 
 1 Moynihan v. Hills Co., 146 Mass. 586. In this case, Knbwlton, J., 
 after stating the rule that the master's obligation to provide and maintain 
 suitable machinery and appliances for doing the work is a personal duty 
 which he cannot discharge by delegating it, says : " In many kinds of 
 business the condition of a machine as to safety is constantly changing 
 with the use of it, and it is safe or unsafe at a given moment according as 
 it is properly or improperly used and managed by the servant who oper- 
 ates it. Moreover, certain kinds of repairs can be conveniently and 
 properly made, under direction and supervision, by servants regularly 
 employed in the business. In such cases both parties to the contract of 
 service must be presumed to have contemplated that, to a certain extent, 
 fellow-servants would be employed by the master to do work in keeping 
 the machinery safe. Work negligently done within that field, if an acci- 
 dent should happen from it, would seem at first to introduce a conflict 
 between the obligation of the master to hold himself liable for want of 
 due care in keeping his machinery safe, and the obligation of the servant 
 not to claim damages resulting from negligence of a fellow-servant. . . . 
 The application, in each particular case, of any general rules which may 
 be laid down will involve the consideration of two questions of fact : First, 
 what is the nature and character of the business, and the usual and proper 
 general method of conducting it ? Secondly, in such a business, what is 
 reasonably necessary to be done on the part of the master to secure for the 
 use of the workmen machinery and appliances which will be reasonably 
 safe? First, there is that class of cases in which the condition of a ma- 
 chine as to safety is constantly changing with its use, so as to require 
 from the persons tending it, as a part of the ordinary use of it, reconstruc- 
 tion or readjustment of parts, as they become worn out or displaced, from 
 materials or new parts supplied by the master for that purpose. Such 
 work is a part of the regular business of the servant in using the machine, 
 and not of the master in maintaining it. Negligence in doing it is, as to 
 all other employees, negligence of a fellow-servant. So far as the condi- 
 tion of machinery depends upon this kind of attention, the master does 
 his duty if he employs competent and suitable persons, and supplies them 
 with everything needed for their work. A second class of cases includes 
 those in which repair or reconstruction of a machine is necessary, of such 
 a kind as is commonly done, or may properly be done, under the direction 
 
464 PERSONAL INJURIES. [CHAP. VII. 
 
 workman charged in some directions with the dutj of super- 
 intendence, does the negligent act complained of, not as a 
 
 of the master by servants engaged in the general business. Both parties 
 to the contract must be presumed to have contemplated that such work 
 would be done by fellow-servants of the employee, and he must therefore 
 be held to have assumed all risks from their negligence in doing it. But 
 this, it must be remembered, is a part of the work for the results of which, 
 in the completed machine, the master agrees to hold himself responsible, 
 so far as good results can be insured by his exercise of proper care. And 
 so he is bound to bring to this department of the business, either in his 
 own person or by an agent, such intelligence, skill, and experience as is 
 reasonably to be required in one to whom in an important particular the 
 safety of others is intrusted, and he is bound also to be reasonably dili- 
 gent and careful in the use of his faculties. One who represents him in 
 this field is not acting as a fellow-servant with his other employees, within 
 the meaning of the rule which we are considering, but is his agent or 
 servant, for whose care and diligence he is accountable. There may be 
 still a third class of cases, in which a machine is of such a kind, and the 
 nature of the business in which it is used is such, that the parties could 
 never reasonably have contemplated that any servants employed in the 
 business would build or reconstruct it. A proprietor might buy such a 
 machine or send an agent or servant to buy it. In either case the pur-' 
 chase would be in the line of the master's duty, and he would be liable 
 for the consequences of negligence in making it. He might hire privileges 
 and men in a machine-shop . . . and build it there. His servants in that 
 work would not be fellow-servants with an employee engaged in an en- 
 tirely different business. And under the doctrine of respondeat superior 
 he would be held for the consequences of their negligence. . . . Upon 
 our hypothesis it would be inconsistent with his implied contract to em- 
 ploy fellow-servants of his employee in this work, and he therefore could 
 not relieve himself from his general obligation as to the safety of his ma- 
 chinery by setting up that his servants in the construction or reconstruc- 
 tion were fellow-servants with his employees in the business in which it 
 was used." See Pittsburg Traction Co. v. Walker, 170 111. 550. So, 
 although it is considered, in Massachusetts, that a section-master on a 
 railroad is, generally, the fellow-servant of the train-men employed on the 
 road, see cases cited § 218, ante, a limitation of this rule is recognized in 
 cases where the duty of supervision has been intrusted to the section- 
 master. Babcock v. Old Colony R. R., 150 Mass. 467. In this case the 
 defendant's section-master, who shared with others the responsibility of 
 supervision at the place where the accident occurred, and who had re- 
 ceived printed instructions from the general manager of the railroad to 
 see that " no wood, lumber, ties, or other obstructions are piled within six 
 feet of the track," disobeyed the order, and by reason of his negligence 
 the plaintiff was injured. It was held that it was a question for the jury 
 
§§ 220-221.] employer's liability. 465 
 
 superintendent, but in his capacity of fellow-servant of the 
 plaintiff, the master will not be liable for such negligent act,* 
 and the mere fact that one employee has authority over others 
 does not make him a vice-principal in a matter which it was 
 not his duty to attend to.^ 
 
 § 221. Vice-Principal : "What Constitutes. — It is appre- 
 hended that the person who does the act complained of is a 
 vice-principal when, in doing it, he so represents the master as 
 to make it the act of the master. The general principle gov- 
 erning this subject has been stated as follows : " The duty of 
 due care in the employment and retention of competent ser- 
 vants is one the master cannot relieve himself of by any dele- 
 gation, and if it becomes necessary to intrust its performance 
 to a general manager, foreman, or superintendent, such officer, 
 whatever he may be called, must stand in the place of the 
 principal, and the latter must assume the risk of his negli- 
 gence. The same is true of the general supervision of his 
 business ; if there is negligence in this, the master is respon- 
 sible for it, whether the supervision be by the master in person 
 or by some manager, superintendent, or foreman, to whom he 
 delegates it. In other words while the servant assumes the 
 risk of the negligence of fellow-servants, he does not assume 
 
 ■whether the defendant ha4 so intrusted the section-master with any part 
 of its duty of supervision as to render itself liable to the plaintiff ; and it 
 was held, in substance, that the defendant would be liable if its supervise 
 ing agents were guilty of negligence while performing the duty of the 
 master ; and that the real question was whether the defendant had failed, 
 through its servants and agents intrusted with that duty, to exercise such 
 care and supervision as it ought to have exercised to prevent the occur- 
 rence of similar accidents. 
 
 1 Shaffers v. General Steam Navigation Co., 10 Q. B. D. 356 ; Osborne 
 V. Jackson, L. R. 11 Q. B. D. 619 ; Kellard v. Kooke, 19 Q. B. D. 585, 
 21 Q. B. D. 367 ; Cashman v. Chase, 156 Mass. 342 ; Gall v. Beckstein, 
 173 m. 187. The application of the mle does not exempt from liability 
 a master who himself takes part with the servant in the work to be per- 
 formed, if by the negligence of the master in doing such work the servant 
 is injured. And his copartners, carrying on with the master the general 
 work, may be jointly liable with him. Ashworth v. Stanwix, 3 El. & El. 
 701 ; 30 L. J. Q. B. 183. See also Roberts v. Smith, 26 L. J. Ex. 319; 
 "Warren v. Wildee, 41 L. J. C. P. 104 n. ; Osborne v. Jackson, supra. 
 
 « Newbury v. Getchell Co., 100 Iowa, 441. 
 
i66 PERSONAL IN JURIES. [CHAP. VII. 
 
 the risk of negligence in the master himself, or in any one to 
 whom the master may see fit to intrust his superintending 
 authority." ^ So, in New York, it is held, generally, that a 
 railway corporation is liable for the negligence of its officers, 
 in respect of such acts and duties as it is required to perform 
 as master or principal, no matter what the rank or title of 
 such officers may be.^ The rule thus expressed is not repug- 
 nant to the general rule that those persons are fellow-servants 
 who are employed by the same master to perform the same or 
 co-ordinate duties for the same general purpose ; but the gen- 
 eral rule has no application when the superior whose negli- 
 gence causes the injury is clothed with the authority and 
 charged with the duty of the master .^ It is evident that the 
 rule, as laid down by Oooley, J., rests upon the assumption 
 that the duty of the master to provide suitable and safe places, 
 machinery, and appliances for doing the work, is a personal 
 duty which the master cannot avoid by delegating it ; a doc- 
 trine accepted by the courts of Michigan,* and believed to be 
 supported by the great weight of modern authority in the 
 United States.^ But it will be found, that those courts which 
 hold, in accord with an important line of English cases that 
 the master's duty in respect of appliances is fulfilled when he 
 has, in the first instance, provided such as are suitable,^ also 
 hold that the workman's superior, in superintending and look' 
 ing out for the safety of machinery and appliances, is merely 
 the fellow-servant of the workman using them ; since, in this 
 view of the law, he is not acting as the master's agent, charged 
 with the performance of a duty which the master cannot 
 avoid, but merely as a workman in co-operation with the in- 
 
 1 Per Cooley, J., in Quincy Mining Co. v. Kitts, 42 Mich. 34. See also 
 Harrison v. Detroit, L. & N. R. R., 79 Mich. 409; Chapman v. Erie R. R., 
 55 N. Y. 579 ; Gilmore v. Northern Pacific R. R., 18 Fed. Rep. 866; Ca] 
 Ian V. Bull, 113 Cal. 593. 
 
 '^ Flike u. Boston & Albany R. R., 53 N. Y. 549; and see Loughlin o. 
 State, 105 N. Y. 159. . 
 
 » Hunn V. Michigan Central R. R., 78 Mich. 513. 
 
 * Van Dusen v. Letellier, 78 Mich. 492 ; Morton v. Detroit, B. C. & A. 
 R. R., 81 Mich. 423. 
 
 ' See § 193, ante, notes and cases cited. 
 
 • Wilson V. Merry, L. R. 1 H. L. Sc. 326. 
 
§§ 221-222.] emploteb's uabiutt. 467 
 
 jured servant. It is to be observed that, in cases in which 
 the injury complained of is the result of the negligence of one 
 representing the master but the act is not done in the conduct 
 of the business for which the plaintiff was employed, the doc- 
 trine of respondeat superior is applied to make the master 
 liable ; and this is so although the business in which the negli- 
 gent act is done be, in a sense, collateral to that in which the 
 plaintiff is employed, as where the agent of the master is 
 negligent in shipping and setting up machinery necessary for 
 performing the work, such duty being usually and of necessity 
 performed by others than the workmen employed in the regu- 
 lar business.* 
 
 § 222. Same Subject : Rule in Supreme Court of the United 
 States. — While the authorities substantially agree that when 
 the intermediary between the master and his employees repre- 
 sents the delegated authority of the former, he stands in the 
 position of a vice-principal, the attempted application of this 
 principle to the circumstances of different cases has produced 
 some confusion of statement and an apparent contrariety of 
 opinion in the reported decisions, as must always be the case 
 when a court is called upon to decide what is, in effect, a ques- 
 tion of fact, before applying to the case a rule of law.^ But, 
 as has been stated, the later American authorities supply a 
 criterion of liability, which, it is apprehended, must in most 
 cases be sufficient, in the rule which holds that the master 
 cannot avoid by delegation the duty of furnishing for the use 
 
 1 See Moynihan v. Hills Co., 146 Mass. 586, 5d4, as cited § 220, ante. 
 Bat it is held in Massachusetts that the master does not owe the servant 
 about to enter his service any duty to inspect all the work which has been 
 done by his servants previously, and which might be intmsted to them 
 without liability to their fellow-serrants for their negligence ; and that 
 the risk of accident from the previous n^ligence of servants in their own 
 field is one of the ordinary risks of the employment which the servant as- 
 sumes by virtue of his contract. EUlea v. Faxon, 125 Mass. 485; O'Con- 
 nor D. Rich, 164 Mass. 560. 
 
 * It is to be observed that there is a line of cases which hold that the 
 question whether one is a vice-principal is for the jury, when the facts, or 
 tiie conclusions to be drawn from them are doubtful. See Great North- 
 em R. R. r. McLanghlin, 44 U. S. App. 189; Mobile & Ohio R. R. v. 
 Massey, 152 111. 144 ; South Florida R. K. i>. Weese, 32 Fla. 46. 
 
468 PERSONAL INJURIES. [CHAP. VII, 
 
 of the servant, and maintaining in safe order, the means, 
 machinery, and appliances necessary for doing the work which 
 the servant is hired to do.^ This being so it is evident that 
 any person to whom the master delegates the duty of superin- 
 tending or keeping in order such machinery, works, or appli- 
 ances, represents the master, and so is a vice-principal. Thus 
 where the station-agent of a railway company, acting under 
 general orders to see that the cars of the company were kept 
 safe, negligently permitted a defective and rotten stake to 
 remain upon a platform-car, by reason of which neglect the 
 plaintiff was injured, it was considered that the plaintiff was 
 entitled to recover for his injuries, since the agent represented 
 the company and the latter was responsible.^ So it is held 
 that a master is liable for the negligence of his foreman, or- 
 dered to remove a barge from the water without direction as 
 to means, in selecting unsafe ropes for that purpose by the 
 breaking of which a laborer is injured ; and that the defend- 
 ant's foreman and superintendent, though present and assist- 
 ing in removing the barge, are not fellow-servants of a laborer 
 injured by the breaking of a rope in the selection of which the 
 foreman was negligent.^ Upon the ground that the person to 
 whom the master has delegated his duty of seeing that the 
 employee is provided with suitable means with which, and 
 suitable and safe places in which, to perform the service of 
 the master, is a vice-principal, it is held, generally, that a 
 car-inspector appointed to see that the cars on which the em- 
 ployees of the railroad employing him are to work are in good 
 order, is not a fellow-servant of the train-men employed on 
 such cars.* It being negligence for a master to fail to furnish 
 
 1 See §§ 193, 220, 221, ante, notes and cases cited. 
 
 2 Bushby v. New York, L. E. & Western R. R., 107 N. Y. 374. For 
 applications of the rule see, also, Dnrkin v. Sharp, 88 N. Y. 225 ; Fay v. 
 Minneapolis & St. L. R. R., 30 Minn. 231; Tierney v. Minn. & St. L. R. 
 R., 33 Minn. 311; Macy v. St. Paul k Duluth R. R., 35 Minn. 200; Carl- 
 son V. Northwestern Tel. Co., 63 Minn. 428; Railroad v. Spence, 93 
 Tenn. 173; Railroad v. Kenley, 92 Tenn. 207; Brann v. Chicago, Rock 
 Island & Pao. R. R., 53 Iowa, 595; Moynihan v. Hills Co., 146 Mass. 586; 
 Babcock v. Old Colony R. R., 150 Mass. 467; Rogers v. Ludlow Manuf'g 
 Co., 144 Mass. 198. 
 
 « Lnnd v. Hersey Lumber Co., 41 Fed. Rep. 202. 
 
 * Condon v. Missouri Pacific R. R., 78 Mo. 567; Sadowski v. Mich. 
 
§ 222.] employee's liability. 469 
 
 a sufficient number of workmen to do the work safely, the 
 officer of a railroad who negligently starts a train without 
 train-men sufficient safely to manage it, stands, pro Jiac viae, 
 in the place of the railroad, which will be responsible for his 
 actual negligence as for that of a vice-principal.^ And there 
 is a line of well-considered cases which hold that if the master 
 is negligent in the general supervision of his business he is 
 responsible for the injurious results of such negligence to his 
 servants, whether the supervision be carried on by the master 
 in person, or by some manager or superintendent to whom^he 
 delegates it ; since the servant, while he assumes the risk of 
 
 Lumber Co., 84 Mich. 100; Braon v. Chicago, K. I. & Pacific E. E., 53 
 Iowa, 595; Bushby v. New York, L. E. & W. E. E., 107 N. T. 374; 
 Cincinnati, H. & D. E. E. v. McMullen, 117 Ind. 439; Macy v. St. Paul 
 & Duluth Railway, 35 Minn. 200 ; Fay v. Minneapolis & St. L. E. E., 30 
 Minn. 231. See, contra, Columbus & Xenia E. E. v. Webb, 12 Ohio St 
 475 ; Little Miami E. E. v. Fitzpatrick, 42 Ohio St. 318. In Mackin v. 
 Boston & Albany E. B., 135 Mass. 201, it was held that whatever might 
 be the liability of a railway for the negligence of its car-inspector in the 
 inspection of cars belonging to the corporation, the liability of the corpo- 
 ration to provide suitable cars did not apply as to cars received by it for 
 transportation from another corporation, but that, " as to cars so re- 
 ceived, the duty ... is not that of furnishing suitable instrumentalities 
 but of inspection, and this duty is performed by the employment of . . . 
 competent . . . inspectors, . . . and, however, it may be as to other cars, 
 the inspectors must be deemed to be engaged in a common employment 
 with the " train-men," and so to be the feUow-servants of such train-men. 
 The rule thus stated appears to be approved in Keith v. New Haven & 
 Northampton Co., 140 Mass. 175 ; Smith v. Flint & Pere Marquette E. 
 E., 46 Mich. 258 ; Cincinnati, H. & D. E. R. v. McMullen, 117 Ind. 439, 
 445. The opinion in Mackin v. Boston & Albany E. E. appears to rest 
 upon the ground held in the English cases heretofore cited, that the duty 
 of the master is fulfilled when he has in the first instance furnished suit- 
 able means for doing the work, a doctrine not accepted by the later cases 
 in Massachusetts. See § 193, ante. And in a case similar in its facts to 
 Mackin e. Boston & Albany E. E., it was held competent for the plain- 
 tiff to show as a fact that as a matter of habit or custom no inspection of 
 the cars not belong^g to the defendant was made, that the safety of the 
 employees required such inspection. Coffee v. New York, N. H. & H. 
 R. E., 155 Mass. 21. 
 
 1 Booth V. Boston & Albany E. E., 73 N. Y. 38 ; Cumberland & Penn- 
 sylvania R. E. V. State, 44 Md. 283 ; Carpenter v. Mexican National E. 
 R., 39 Fed. Eep. 315. See Byrnes v. New York, L. E. & W. E. E., 113 
 N. Y. 25L 
 
470 PERSONAL INJUEIE8. [CHAP. Til, 
 
 injuries caused by the negligence of his fellow-seryants, does 
 not assume risks from the negligence of the master or of 
 persons to whom the master may delegate his authority.^ So 
 it was held that a train-despatcher who has absolute control 
 over a division of a railroad, so far as the running of the 
 trains thereon is concerned, is a representative of the corpora- 
 tion and not the fellow-servant of those working under his 
 orders ; ^ and that the owner of a mine is responsible for the 
 negligence of a mining-captain in charge of it, whereby one of 
 ■the miners suffers injury .^ Where the work done by a fore- 
 
 1 Quincy Mining Co. v. Kitta, 42 Mich. 39 ; Faeber v. Scott Mining 
 Co., 86 Wis. 226 ; and see Yan Dosen v. Letellier, 78 Mich. 492, as cited 
 § 193, ante. 
 
 ^ Hunn V. Michigan Central K. K., 78 Mich. 573 ; Sheehan v. New 
 Tork Central & H. K. R. R., 91 N. Y. 332 ; Smith v. St. L. & Pacific R. 
 R., 92 Mo. 389 ; Chicago, Burlington & Quincy R. R. v. McLaUeu, 84 III. 
 109 ; Chicago, Burlington & Quincy R. R. v. Young, 26 lU. App. 115 ; 
 Hankins v. New York, L. E. & W. R. R., 142 N. Y. 416; Darrigan v. 
 New York & New England R. R., 52 Conn. 285. 
 
 * Ryan v. Bagaley, 50 Mich. 179 ; Mahon v. Ida Mining Co., 95 Wis. 
 308. Where an employee was injured by the negligence of the " boss 
 and agent " of a mining company, acting as foreman of the gang in which 
 the plaintifi was employed, the court said: " The relation existing between 
 them was such as brings the case clearly within the rule established by 
 repeated adjudications of this court . . . that when one servant is placed 
 by the employer in a position of subordination to and subject to the 
 orders and control of another, and such inferior servant without fault, and 
 while in the discharge of his duties, is injured by the negligence of the 
 superior seiTaut, the master is liable for such injury." Berea Stone Co. 
 V. Kraft, 31 Ohio St. 287. But in Pennsylvania it is held, uniformly, 
 that a " miuing-boss " and the members of the gang working under him 
 are fellow-servants. See Lehigh Valley Coal Co. v. Jones, 86 Penn. St. 
 432; Delaware & Hudson Canal Co. v. Carroll, 89 Penn. St. 374; Wad- 
 dell u. Simonson, 112 Penn. St. 567; Reese v. Biddle, 112 Penn. St. 72; 
 Lineoski v. Susquehanna Coal Co., 157 Penn. St. 153 (and it is so held 
 as to the engineer who operates the shaft-elevator; Bradbury v. Keystone 
 Coal Co., 157 Penn. St. 231 ; Mulhern v. Lehigh Valley Coal Co., 161 Penn. 
 St. 270). It was held otherwise as to a superintendent having authority 
 to hire and discharge men, Beeson v. Green Mountain Mining Co., 57 
 Cal. 20; and so where the " pit-boss " of a mine had authority to tell the 
 workmen to do certain work or to quit, it was held that he did not stand 
 to them in the relation of fellow-servant. Consolidated Coal Co v. Wom- 
 bacher, 134 111. 57. And the better rule seems to be that whether the 
 shift-boss in a mine is or is not the fellow-servant of a laborer in the mine 
 
§ 222.] employer's liabiutt. 471 
 
 man was in providing suitable appliances, not in moving coal 
 with the rest of the gang of workmen, it was held that as to 
 his work he was a vice-principal.^ And the defendant's su- 
 perintendent to whom it had delegated general authority to 
 manage the business, including the duty of seeing that the 
 machinery was kept in good order, was held to be the plain- 
 tiff's superior servant in starting a planer which the plaintiff 
 was oiling and thereby injuring the plaintiff.* A foreman 
 in a mill whose duty it is to see that dangerous machinery is 
 kept covered, is not, as to such duty, the feUow-servant of an 
 employee who is injured by reason of the non-performance of 
 it.* So where the foreman in chai^ directs a laborer to per- 
 form work under circumstances of great danger, the employer 
 cannot escape liability merely on the ground that the negli- 
 gence of the foreman was the doing an act of manual labor in 
 setting in motion the agency that caused the injury and that 
 thereby the foreman became a fellow-servant of the plain- 
 tiff.* It is believed that the authorities already cited estab- 
 lish the principles : 1, thaA the position of the employee as 
 vice-principal or fellow-servant is not to be determined merely 
 by reference to his nominal rank or position in the general 
 employment ; and 2, that if the employee is fully clothed with 
 the delegated authority of the master in respect of a duty 
 towards his fellow-employees which the master is bound to 
 perform, he then stands, as to his fellow-employees, in the 
 relation of vice-principal. But the Supreme Court of the 
 United States, in an elaborately considered case, has laid 
 down the following rules: (1) The mere superiority of the 
 negligent employee in position, and the power to give orders, 
 is not a ground for liability ; (2) In order to create liability 
 the person whose neglect caused the injury must have been 
 invested with the control and management of a distinct de- 
 depends not npoo his grade, or his control over the other members of the 
 shift, bat npoo the character of the acts he is required to perform. Ban- 
 ker Hill, &c Co. c. SchmeUing, 48 IT. S. App. 331. 
 
 ^ Jamek r. Manitowoc Co., 97 Wis. 537. 
 
 * Shomway r. Walworth Maoof'g Co., 9S Mich. 111. 
 
 » Rous r. Blodgett, «». Co., 9i Mich. 607. 
 
 '* Crystal Ice Co. v. Sherlock, 37 Neb. 19 ; Hammond Co. v. Johnson, 
 38 Neb. 244. 
 
472 PERSONAL INJURIES, [CHAP. VIl. 
 
 partment and not of a mere separate piece of work in one of 
 the branclies of service iu a department; (3) when the business 
 naturally and necessarily separates itself into departments of 
 service, those placed in charge of the separate departments 
 are, in reference to the employees under them, vice-principals.^ 
 Upon a strict application of the principles thus stated it was 
 held that where there exists no division of the business of a 
 corporation into departments, only the directors of the corpo- 
 ration, or its general superintendent, intrusted with the 
 entire management of the business, can be considered vice- 
 principals.^ 
 
 § 223. Same Subject : Railway Employees. — It has been 
 considered that the following classes of persons stand in such 
 relations respectively to the common employer and other 
 employees as to be vice-principals, for whose negligence the 
 common employer may be liable : the master mechanic in a 
 railroad shop, having full authority over the men, machinery, 
 and work, there being no other representative of the corpora- 
 tion present ; ^ an assistant road-master having charge of one 
 
 1 Northern Pacific K. R. v. Peterson, 162 TJ. S. 346, and see Northern 
 Pacific R. R. V. Charless, 162 U. S. 359 ; Alaska Mining Co. v. Whelan, 
 167 U. S. 86; Union Pacific R. R. v. Callaghan, 56 Fed. Rep. 988; 6 C. 
 C. A. 205; Cleveland, C. C. & St. L. R. R. i;. Brown, 56 Fed. Rep. 804, 
 6 C. C. A. 142 ; Joliet Steel Co. v. Shields, 146 111. 603 ; Taylor v. Ga. 
 Marble Co., 98 Ga. 512; Findlay v. Russell Wheel Co., 108 Mich. 286; 
 Musick V. Dold Packing Co., 58 Mo. App. 322. 
 
 2 What Cheer Coal Co. v. Johnson, 12 U. S. App. 490. The Supremo 
 Court of the United States having held that the conductor and brakeman 
 on a railroad were, under the circumstances of the case, fellow-servants, 
 Chicago, M. & St. P. R. R. v. Ross, 112 U. S. 377, as cited § 223, post, it 
 was said that it must be held that there are divisions of the service of a 
 railroad company into departments ; that the heads thereof are vice-prin- 
 cipals ; that a train of cars is such a department ; that the conductor of 
 such a train is such a representative of the company so that if by his 
 negligence an employee on the train is injured the company is liable. 
 Northern Pac. R. R. v. Beaton, 29 U. S. App. 88 (1894). 
 
 » Taylor o. Evansville & T. H. R. R., 121 Ind. 124. So it is held that 
 a foreman in charge of a distinct piece of work in an extensive foundry, 
 and having under him laborers bound to obey his orders, is, as to them, a 
 vice-principal and not a fellow-servant ; and this is so although another 
 may be general foreman of the entire establishment. Dowling v. Allen, 
 
§§ 222-223.] employer's liabilitt. 473 
 
 hundred and fifty miles of railroad, as to the workmen under 
 )um ; ^ the foreman of railway shops in charge of a wreck, as 
 to his men engaged, under his orders, in restor'ing the train ; ^ 
 the superintendent of the construction of a line of railroad, 
 having foremen and workmen under him ; ^ the general man- 
 ager of a railroad, as to an engineer employed on the road.* 
 It follows from the application of the principle already stated, 
 that a person may he, as to one class of acts, the fellow-ser- 
 vant of those working with him, and, at the same time, as to 
 acts in which he is charged with a delegated duty of the 
 master, a vice-principal. Thus it was held that the superin- 
 tendent and manager of a mill who volunteered to do the 
 work of a disabled employee and called another workman to 
 assist him in it became, by so doing, the fellow-servant of the 
 latter workman, and that his orders, in respect of the work, 
 were those of a fellow-servant and not of a vice-principal ; but 
 
 74 Mo. 13. See also Gravelle v. Minneapolis & St. L. B. R., 10 Fed. Rep. 
 711 ; Gilmore ». Northern Pacific Railway, 18 Fed. Rep. 866. 
 
 ^ Harrison v. Detroit, L. & N. R. R., 79 Mich. 409 ; and see Lonisville, 
 N. A. & C. R. R. c: Graham, 124 Ind. 89 ; St. Louis & S. F. R. R. v. 
 Weaver, 35 Kan. 412. 
 
 » Borgman v. Omaha & St. L. R. R., 41 Fed. Rep. 667. It was 
 held where a train hand on a railroad was injured while digging gravel 
 through the negUgence of one who was at the same time engineer, super- 
 intendent, conductor, and master of gravel and material, with power to 
 hire and to discharge hands, that the superior and the plaintiff were not 
 fellow-servants. Dobbins v, Richmond & DanvUIe R. R., 81 N. C. 446, 
 and see Cowles v. Richmond & Danville R. R., 84 N. C. 309 ; Chicago, 
 Milwaukee & St. P. R. R. v. Ross, 112 U. S. 377, and other cases cited, 
 infra. But in Galveston, H. & S. F. R. R. ». Smith, 76 Tex. 611, it was 
 held that a road-master in charge of a working party was a fellow-servant 
 with one of the men working under him, although he had power to dis- 
 charge the men. 
 
 » Denver, S. P. & P. R. R. R v. DriscoU, 12 Col. 520. It was held that 
 an employee working at a monthly salary, who acts as chief manager in 
 charge of the works, without authority to buy new articles or to repair 
 machinery, but who does sometimes make slight repairs without orders, 
 hires and discharges employees, keeps and reports their time to the officers 
 of the company, who frequently inspect the works, and under whose direc- 
 tion he is in all matters, is a fellow-servant of the other employees. Yates 
 V. McCullough Iron Co., 69 Md. 370, and see Brodeur v. Valley Falls Co., 
 16 R. I. 448. 
 
 * Krogg V. Atlanta & W. P. R. R., 77 Ga. 202. 
 
474 PEBSONAL INJURIES. [CHAP. VII. 
 
 that, in his failure to give the latter workman necessary warn- 
 ings and instructions as to the dangers attending the work, 
 his negligence was that of a vice-principal, and so that the 
 common employer was liable for the results of such failure.^ 
 So a railway engineer has been held to be a vice-principal as 
 regards the duty to inspect his engine, since it is the duty of 
 the principal to see that the engine is in a reasonably safe 
 condition for service.^ It is held that one employed by a 
 board of public works, with full power to hire and discharge 
 laborers, and direct the prosecution of the work of construct- 
 ing a street, is a vice-principal in his relation to dirt-shovellers 
 employed under him;^ and that so is the foreman superin- 
 tending the loading of a ship, with full power to give orders.* 
 It has been held by the Supreme Court of the United States, 
 in a majority opinion, that a railway conductor, having the 
 entire control and management of a railway train, is not a 
 fellow-servant with the firemen, brakemen, porters, and engi- 
 neer of the train ; but that as to them and the train, he stands 
 in the place of, and represents the corporation.^ The prin- 
 
 ■■ Klochinski v. Shores Lumber Co., 93 Wis. 417. See Railway Co. v. 
 Torrey, 58 Ark. 217. 
 
 2 Atchison, Topeka & Santa Fe R. R. v. Mulligan, 34 U. S. App. 1. 
 
 * Hathaway v. Des Moines, 97 Iowa, 333. See Bloyd v. Railway Co., 
 58 Ark. 66; Claybaugh v. Kansas City, &c. R. R., 56 Mo. App. 630. 
 
 * Cheeney v. Ocean Steamship Co., 92 Ga. 726. 
 
 « Chicago, Milwaukee & St. P. R. R. v. Ross, 112 U. S. 377, Bradley, 
 Matthews, Gray, and Blatchford, JJ., dissenting. In the brief dissenting 
 opinion, it is said, without discussing authorities, that the rule adopted 
 by the majority tends " to break down the long established rule with 
 regard to the exemption from responsibility of employers for injuries to 
 their servants by the negligence of their fellow-servants." In line with 
 the majority opinion in this case appear to be the cases Little Miami 
 K. R. V. Stevens, 20 Ohio, 415 ; Cleveland, C. & C. R. R. v. Keary, 3 
 Ohio St. 201 ; Pittsburg, Fort Wayne & Chicago B. R. v. Devinney, 17 
 Ohio St. 197 ; Chicago, Burlington & Quincy R. R. v. Blank, 24 111. App. 
 438 ; Louisville & N. R. R. v. Collins, 2 Duv. 114 ; Boatwright v. Eastern 
 R. R., 25 S. C. 128 ; Coleman v. WUmington, C. & A. R. R., 25 S. C. 446 ; 
 Mason v. Richmond & D. R. R., 114 N. C. 718 ; Norfolk & Western R. R. 
 V. Thomas, 90 Va. 205 ; Clark v. Hughes, 51 Neb. 780 ; Ragsdale ». North- 
 em Pacific R. R., 42 Fed. Rep. 383 ; Canadian Pacific R. R. v. Johnson, 
 26 U. S. App. 85. A contrary rule seems to be implied in Gilshannon v. 
 Stony Brook R. R., 10 Cush. 228; Holden v. Fitchburg R. R., 129 Mass. 
 
§§ 22a-224.] employer's liabilitt. 475 
 
 ciple recognized in this case ia said to be that where a given 
 operation connected with a railway requires care and over- 
 sight for the proper performance thereof, and for that purpose 
 there is placed in chai^ of it one clothed with the duty of 
 supervising and controlling the given work and having control 
 and direction over those employed, such person in carrying 
 out the duty of control, supervision, and management, repre- 
 sents the company.^ In a later case, it was held that a 
 common day laborer who, while working for the company 
 under the order and direction of a section " boss " or foreman, 
 on a culvert on the line of the railroad, receives an injury by 
 the negligence of the conductor and engineer of a passenger 
 train on the road, is a fellow-servant of such engineer and 
 conductor. The case was distinguished from that of Chicago, 
 M. & St. P. B. K V. Ross, for that, in the latter case, the 
 liability was placed upon the ground that the person who 
 sustained the injury was under the direct authority and con- 
 trol of the person by whose negligence the injury was caused.^ 
 
 (c) Remedy, as between the Fellow-Servants. 
 
 § 224. ITegligent Servant liable. — If a servant receive in- 
 juries by reason of the negligence of a fellow-servant, both 
 being engaged in a common employment under the same 
 master, and the negligence being in respect of such employ- 
 ment, the negligent servant is answerable therefor in an 
 
 26 S, and in many of the earlier cases. In Brown v. Central Pacific R. R, 
 72 Cal. 523, it was held that a conductor and brakeman employed on the 
 same train were fellow-servants ; and, in Miller v. Ohio & M. R. B., 24 
 111. App. 326, that a laborer on a construction train was a feUow-servant 
 with the engineer and conductor of the train ; and it is held in the same 
 State that a blacksmith and a railway conductor, both engaged, tempo- 
 rarily, as part of the same gang, in clearing a wreck, are feUow^servants. 
 Abend v. Terre Haute & I. R. R., Ill DL 202. See also CSiicago & Alton 
 R. R. V. Keefe, 47 HI. 108 ; Wilson v. Madison, &c. R. R., 18 Ind. 220. 
 
 1 Boigman v. Omaha & St L. B. R., 41 Fed. Rep. 667. 
 
 * Northern Pac. R. R. v. Hambley, 154 U. S. 349. See St Louis, &c 
 E. B. c. Needham, 27 TI. S. App. 227 ; Northern Pac. R. R. v. Mase, 27 
 U. S. App. 238; Baltimore & Ohio R. R. jJ. Baugh, 149 U. S. 368; Oakes 
 r. Mase, 165 U. S. 363 ; Howard v. Denver, &c. R. R., 26 Fed. Rep. 837. 
 
476 PERSONAL INJUEIE8. [CHAP. VII. 
 
 action brought by the injured servant.^ Thus when an em- 
 ployee personally selects the means and directs the method of 
 setting up apparatus furnished by the common employer, he 
 becomes personally responsible to his fellow-employees for 
 injuries caused by his negligence in so doing ; but there is no 
 responsibility except when the employee acts as a free agent 
 in doing the work.^ The negligence of the defendant in such 
 a case is a breach of the common-law duty which each 
 member of the community owes to every other so to conduct 
 his business and affairs that no other person shall receive a 
 needless injury.* The right of action does not rest in any 
 contract, whether between the two servants, or between the 
 servants and their common employer, and the action therefore 
 sounds in tort.* And, since there is no privity between 
 fellow-servants, it would seem that the right of action is in 
 no way affected by the legal relations existing between the 
 defendant servant and the common employer. It has been 
 attempted to apply in such cases the rule which makes an 
 agent responsible to third persons for misfeasance only and 
 not for non-feasance.' It is clear, however, that in most 
 cases this rule, if legally applicable, must be useless, since 
 " non-feasance " would be the refusal of the agent to carry 
 
 1 Wiggett V. Fox, 11 Exch. 832 ; Degg v. Midland Railway, 1 H. & 
 N. 773 ; Swainson v. Northeastern Railway, 3 Ex. Div. 341 ; Wright v. 
 Roxburgh, 2 Ct. of Sess. Cas. (3d Series) 748 ; Hinds v. Harbou, 58 Ind, 
 121 ; Hinds v. Overacker, 66 Ind. 547 ; Griffiths ;>. Wolfram, 22 Minn. 
 185 ; Osborne v. Morgan, 130 Mass. 102, overruling Albro v. Jaquith, 4 
 Gray, 99 ; Hare v. Mclntire, 82 Maine, 240. In Sonthcote v. Stanley, 1 
 H. & N. 247, occurs a dictum by Pollock, C. B., to the effect that one 
 servant cannot maintain an action against another for injuries caused by 
 the negligence of the latter while engaged in the common employment. 
 This dictum does not appear in the report of the case in L. J. (s. s.) Ex. 
 339, but, according to the latter report, Alderson, B., remarked that he 
 was " not prepared to say that the person actually causing the negligence 
 (sic), whether the master or servant, would not be liable." 
 
 2 Atkins V. Field, 89 Maine, 281. 
 
 ' See §§ 5, 11, ante, and Hare v. Mclntire, 82 Maine, 240, 245. 
 
 * Rapson v. Cubitt, 9 M. & W. 710 ; George v. Skivington, 5 Ex. 1 ; 
 Parry v. Smith, 4 C. P. D. 325 ; Foulkes v. Metropolitan Railway, 4 C. P. 
 D. 267, 5 C. P. D. 157; Ames v. Union Railway, 117 Mass. 541 ; Mulchey 
 V. Methodist Religious Society, 125 Mass. 487. 
 
 » Albro V. Jaquith, 4 Gray, 99 ; O'Neil v. Young, 58 Mo. App. 628. 
 
§ 224.] employer's liabilitt. 477 
 
 out the contract with his employer, or, in other words, to 
 enter upon the employment, in which case the agent could 
 not generally be guilty of negligence in respect of such em- 
 ployment. On the other hand, if he actually enters upon the 
 employment it is his duty to exercise due and reasonable care 
 in respect of it so as not to cause injury to his fellow-servants 
 or to strangers. If he abandon his work, leaving the matters 
 and things pertaining thereto in a condition dangerous to 
 others, this is not to be taken as non-feasance or doing 
 nothing, but as misfeasance or doing what is wrong. Thus a 
 mine foreman who neglects to examine the roads and ways in 
 use in the mine as required by a statute is personally liable for 
 injuries sustained by a miner by reason of his neglect.^ So the 
 liability of the defendant servant exists not only for the con- 
 sequences of active negligence on his part, but for the results 
 of failure of duty in leaving undone, or wrongly done, things 
 which he ought to do carefully ; as where the defendant left 
 a tackle-block and chains carelessly suspended from a ceiling, 
 and these fell, and a fellow-servant was injured. In this case, it 
 was said : " It is doubtless true that if an agent never does 
 anything towards carrying out his contract with his principal, 
 but wholly omits and neglects so to do, the principal is tlie 
 only person who can maintain an action against him for the 
 non-feasance. But if the agent once actually undertakes and 
 enters upon the execution of a particular work, it is his duty 
 to use reasonable care in the manner of executing it, so as not 
 to cause any injury to third persons which may be the natural 
 consequence of his acts, and he cannot, by abandoning its 
 execution midway and leaving things in a dangerous condition, 
 exempt himself from liability to any person who suffers injury 
 by reason of his having so left them without proper safeguards. 
 This is not non-feasance, or doing nothing ; but it is misfeas- 
 ance, doing improperly." ^ An agent of a corporation whose 
 
 1 Dnrkin v. Kingston Coal Co., 171 Penn. St. 193. 
 
 " Osborne v. Morgan, 130 Mass. 102. The right of the master, how- 
 ever, against one servant for injuries negligently inflicted upon another 
 rests upon the implied contract between the master and the defendant 
 that the latter will use due and ordinary care not to injure the person or 
 property of his master, and the damsiges to be recovered in such an action 
 
478 PERSONAL INJURIES, [CHAP. VII. 
 
 duty it is to provide safe maohineiy but who sets an inexperi- 
 enced employee to work on a machine which the agent knows 
 to be dangerous is guilty of a misfeasance ; and the agent and 
 the corporation will be jointly liable for injuries resulting to 
 the employee.^ 
 
 SECTION V. 
 
 LIABTLITT OP EMPLOYER EXTENDED BY STATUTE. 
 
 (a) In Special Cases. 
 
 § 225. In the Case of Railway Corporations. — In many of 
 the States, the rule of the common law which exempts the 
 master from responsibility for injuries suffered by his servants 
 through the negligence of their fellow-servants in the same 
 employment, the master himself being without actual fault, 
 has been abrogated, or modified, in favor of the employees of 
 corporations owning or operating railroads. Thus, in Min- 
 nesota,^ it is provided that " Every railroad corporation own- 
 will be for the loss of service or injury to property caused by the defend- 
 ant's negligence, and never for the bodily injury to the servant, since the 
 master is not liable for this unless he has been negligent in the selection 
 or employment of his servants. See § 10, ante, and cases cited supra. 
 
 > Greenbucg v, Whitcomb Lumber Co., 90 Wis. 225. 
 
 2 Minn. Gen. Sts. 1894, § 2701. In Georgia (Code, 1895), the statute 
 is as follows: "§ 2297. Bailroad companies are common carriers, and 
 liable as such. As such companies necessarily have many employees who 
 cannot possibly control those who should exercise care and diligence in 
 the running of trains, such companies shall be liable to such employees, 
 as to passengers, for injuries arising from the want of such care and dili-' 
 gence. § 2323. If the person injured is himself an employee of the com- 
 pany, and the damage was caused by another employee and without fault 
 or negligence on the part of the person injured, his employment by the 
 company shall be no bar to the recovery." See Central R. R. ». Mitchell, 
 63 Ga. 173; Georgia R. R. & Banking Co. v. Goldwire, 56 Ga. 196; 
 Georgia R. R. v. Ivey, 73 Ga. 409 ; Thompson v. Central R. R., 54 Ga. 
 509 ; Central R. R. v. Lanier, 83 Ga. 587; Georgia R. R. v. Miller, 90 
 Ga. 571. In Wyoming, the Territorial law provided that when " any 
 person in the employment of any railroad company in this Territory, may 
 be killed by any locomotive, car, or other rolling stock, whether in the 
 performance of his duty or otherwise, his widow or heirs may have the 
 
§§ 224-225.] employee's liabilitt. 479 
 
 ing or operating a railroad in this State shall be liable for all 
 damages sustained by any agent or servant thereof, by reason 
 of the negligence of any other agent or servant thereof, with- 
 out contributory negligence on his part, when sustained within 
 this State, and no contract, rule, or regulation between such 
 corporation and any agent or servant shall impair or diminish 
 such liability : provided that nothing in this act shall be so 
 construed as to render any railroad company liable for 
 damages sustained by any employee, agent, or servant while 
 engaged in the construction of a new road, or any part thereof, 
 not open to public travel or use." It will be observed that 
 the operation of this statute is confined by its terms to the 
 case of employees engaged in operating a railroad, and nec- 
 essarily exposed to the hazards attending that business ; and 
 does not apply to all the employees of the company without 
 regard to the kind of work in which they are engaged ; ^ and 
 the statute does not abrogate the ordinary rules as to con- 
 tributory negligence and the assumption of risk.^ Similar 
 
 same right of action for damages against said company as if said person 
 so killed were not in the employment of said company; any agreement 
 he may have made, whether verbal or written, to hold snch company 
 harmless or free from an action for damages in the event of such kUling, 
 shall be null and void, and shall not be admitted as testimony in behalf 
 of said company in any action for damages which may be brought 
 against them; and any person in the employ of said company who may 
 be injured by any locomotive, car, or other rolling stock of said company, 
 or by any other property of said company, shall have his action for 
 damages against said company the same as if he were not in the employ 
 of said company ; and no agreement to the contrary shall be admitted as 
 testimony in behalf of said company." Comp. Laws, Wyoming (1876), 
 c. 97, § 1. In Montana, it is provided that " in every case the liability 
 [of a railway corporation] to a servant or employee acting under the 
 orders of his superior shall be the same in the case of injury sustained by 
 default or wrongful act of his superior, or to an employee not appointed 
 or controlled by him, as if snch servant or employee were a passenger." 
 Eev. Stats. 1879, p. 471, § 318. 
 
 1 Lavallee v. St. Paul, M. & M. R. B., 40 Minn. 349. See Schneider v. 
 Chicago, B. & N. R. B.,43 N. W. Rep. 783 (Minn. 1889) ; Northern Pac. 
 B. R. V. Behling, 57 Fed. Rep. 1037, 6 C. C. A. 681; Slette ». Railway 
 Co. (Minn.), 55 N. E. Rep. 137; StefEenson v. Railway Co., 45 Minn. 
 355 ; Blomqnist v. Great Northern R. K, 65 Minn. 594. 
 
 ' Anderson v. Nelson Lumber Co., 67 Minn. 79. 
 
480 PERSONAL INJURIES. [CHAP. VH. 
 
 provisions upon this subject occur in the statute in lowa,^ and 
 whether the liability be restricted by the terms of the statute 
 or not, the courts are inclined to hold that the statute is in- 
 tended to be effectual only in favor of persons engaged in 
 and exposed to the risks attending the ordinary operation 
 of railroads.^ It is obvious that in the application of the 
 statutes it must often be diflScult to determine whether or not 
 the occupation of the injured employee falls within the class 
 which the legislature intended to exempt from the operation 
 of the common-law rule.^ In Florida, a railway company is 
 made liable for injury to an employee, caused by the negli- 
 
 1 The statute provides that " every corporation operating a railway 
 shall be liable for all damages sustained by any person, including em- 
 ployees of such corporation, in consequence of the neglect of agents, or 
 by the mismanagement of the engineers or other employees thereof and 
 in consequence of the wilful wrongs, whether of commission or omission, 
 of such agents, engineers, or other employees, when such wrongs are in 
 any manner connected with the use or operation of any railway on or 
 about which they shall be employed ; and no contract which restricts such 
 liability shall be legal or binding." Code, 1897, § 2071. This act operates 
 for the benefit only of such employees of a railroad corporation whose oc- 
 cupation exposes them to the hazards incident to the ordinary operation 
 of railways. Schroeder v. Chicago, R. I. & Pae. R. R., 41 Iowa, 344, 
 and see Deppe v. Chicago, R. I. & Pac. R. R., 36 Iowa, 52; Larson v. lU. 
 Central R. R., 91 Iowa, 81. 
 
 2 Missouri Pacific R. R. v. Haley, 25 Ean. 35; Solomon R. R. v. Jones, 
 30 Kan. 601. In Kansas, it is provided that " every railroad company 
 organized or doing business in this State shall be liable for all damages 
 done to any employee of such company, in consequence of any negligence 
 of its agents, or by any misunderstanding of its engineers, or other em- 
 ployees, to any person sustaining such damage." Acts, 1874, o. 93, § 1, 
 Compiled Laws Kansas, 1881, p. 784. 
 
 » See McKnight v. Iowa & M. R. Const. Co., 43 Iowa, 406 ; Deppe v. 
 Chicago, Rock Island & Pacific R. R., 36 Iowa, 52 ; Smith i;. Burlington, 
 C. R. & N. R. R., 59 Iowa, 73; Fransden i>. Chicago, R. I. & Pao. R. R., 
 36 Iowa, 372; Potter v. Chicago, R. I. & Pac. R. R., 46 Iowa, 399; 
 Whalen v. Chicago, R. I. & Pac. R. R., 75 Iowa, 563 ; Locke v. Sioux City 
 R. R., 46 Iowa, 109 ; Malone v. Burlington, C. R. & N. R. R., 61 Iowa, 
 320 ; Handelun v. Burlington, C. R. & N. R. R., 72 Iowa, 709; Raybum 
 V. Central Iowa R. R., 74 Iowa, 637 ; Schroeder v. Chicago, R. I. & Pac. 
 R. R., 41 Iowa, 344 ; Sloan v. Central Iowa R. R., 62 Iowa, 728 ; Houser 
 V. Chicago, R. L & Pac. R. R., 60 Iowa, 230 ; Stroble v. Chicago, M. & 
 St. P. R. R., 70 Iowa, 555 ; Manning v. Burlington, C. R. & N. R. R., 64 
 Iowa, 240; Foley v. Chicago, R. L & Pac. K. R., 64 Iowa, 644. 
 
§ 225.] employer's uabiltty. 481 
 
 gence of a co-employee ; * and, in Wisconsin for like injuries, 
 in the absence of contributory negligence on the part of the 
 injured employee, or " when such damage is caused by the 
 negligence of any train-despatcher, telegraph operator, super- 
 intendent, yard-master, conductor or engineer, or of any per- 
 son who has charge or control of any stationary signal, target 
 point, block, or switch." * Under the Fellow-Servant Act of 
 Texas, 1893, it was held that a conductor of a train was a 
 feUow-servant of the engineer if he exercised control over 
 him, but not otherwise.^ In Mississippi, it is held that a rail- 
 way engineer is not the " superior agent or oflBcer " or " per- 
 son having the right to control or direct the services" of 
 a brakeman on the train, under Const. 1890, § 193.* Where 
 a statute » provided that an employer should not be liable for 
 injuries to an employee " in consequence of the negligence of 
 another person employed by the same employer in the same 
 general business," it was held that the head brakeman and 
 conductor on a regular freight train were fellow-servants 
 within the meaning of the Act.® In Ohio, prior to the Act of 
 April 2, 1890, it was uniformly held that any person actually 
 having power and authority to direct or control any other 
 employee of the common master was his superior, and that 
 the master was liable for injury caused to the inferior by the 
 act of the superior.'' It is held that the above Act did not 
 create any wider rule of liability, excepting in so far as it 
 provides that a superior in one department shall not be the 
 feUow-servant of a subordinate in another.^ The ordinary 
 
 I Sts. (Fla.), c. 3744, § 2. See Dnval o. Hunt, 34 Fla. So. 
 
 » Laws, 1SS9, c. 438. See Knise c. Chic., M. & St. P. R. R., 82 Wis. 
 568; Dugan v. Chic, St. P. &c. R. R., So Wis. 609 ; Albrecht r. Milwaukee 
 & S. R R., S7 Wis. 105; Hartford r. Xorthem Pac. R. R., 91 Wis. 374; 
 see 218, 220, ante. 
 
 » Moore i-. Jones, 15 Tex. Civ. App. 391. See Houston & Tex. Cent 
 R. R. r. TaUey, 15 Tei. Civ. App. 11a ; §§ 221-223, aiUe. 
 
 • Evans v. Louisville, N. O. & T. R. R., 70 Miss. 527. 
 s Comp. Laws, Dakota, 1887, § 3753. 
 
 • Northern Pacific R. R. r. H(^an, 27 U. S. App. 184. 
 
 ' See Little Miami R. R. c. Stevens, 20 Ohio, 415; Lake Shore & Mich. 
 Cent. R. R. v. LavaUey, 36 Ohio St. 221 ; Alexander v. Penn. Co., 48 
 Ohio St. 623, and cases dted. 
 
 8 Bait. & Ohio R. R. v. Camp, 31 U. S. App. 213. 
 
 SI 
 
'482 PERSONAL INJURIES. [CHAP. VIl. 
 
 rule of fellow-servant is held to be abrogated by the civil code 
 •of California, § 1970.i 
 
 § 226. Such statutes not Unconstitutional. Enforced by the 
 Federal Courts. — By the code of lowa,^ it was provided that 
 every railway corporation, or its lessee, operating a railroad 
 within the State, should be liable for all injuries occurring 
 to the employees of such corporation in consequence of the 
 neglect of a co-employee in the performance of his duty to the 
 company. The constitution of lowa^ provides that "all 
 laws shall be general and of uniform operation throughout 
 the State ; " and the Supreme Court of the State held that the 
 statute, as operating uniformly upon all persons under the 
 circumstances contemplated by it, was constitutional.* In 
 the Circuit Court of the United States for the Northern Dis- 
 trict of Iowa, it was contended that the statute was repugnant 
 to the Fourteenth Amendment to the Constitution of the 
 United States, which provides that no State shall " deny to 
 any person within its jurisdiction the equal protection of the 
 laws," but the court aflSrmed the constitutionality of the 
 statute. Upon the question being carried to the Supreme 
 Court of the United States, the judgment of the Circuit Court 
 was affirmed, in a majority opinion.^ Later, the same question 
 arising upon the interpretation of the statute of Kansas,® the 
 constitutionality of the statute was affirmed, and the court 
 said : " The only question ... is whether it is in conflict 
 with the clauses of the Fourteenth Amendment. . . . The 
 supposed hardship and injustice consist in imputing liability 
 to the company, where no personal wrong or negligence 
 is chargeable to it or its directors. But the same hardship 
 and injustice, if there be any, exist when the company 
 without any wrong or negligence on its part is charged for 
 
 1 Davis V. Southern Pacific Co., 98 Cal. 19. 
 
 2 1873, c. 5, §§ 1288, 1307. See § 225, ante. 
 » Art. 3, § 30. 
 
 * McAunich v. Mississippi & Missouri K. R., 20 Iowa, 338 ; Deppe v. 
 Chicago, Kock Island & Pacific B. K., 86 Iowa, 52 ; Bucklew v. Central 
 Iowa Railway, 64 Iowa, 603. 
 
 5 Chicago & Northwestern R. R. ». McLaughlin, 119 U. S. 566. 
 
 * Compiled Laws, Kansas, 1881, p. 784. See § 225, ante. 
 
§§ 225-226.] employer's liability. 483 
 
 injuries to passengers. Whatever care and precaution may 
 be taken in conducting its business or in selecting its ser- 
 vants, if injury happen to the passengers from the negli- 
 gence or incompetency of the servants, responsibility therefor 
 at once attaches to it. . . . The law . . . extends this doc- 
 trine, and fixes a like liability upon railroad companies, where 
 injuries are suffered by employees, though it may be by the 
 negligence or incompetency of a fellow-servant in the same 
 general employment, and acting under the same immediate 
 direction. That its passage was within the competency of the 
 legislature, we have no doubt. The objection that the law 
 . . . deprives the railroad companies of the equal protection 
 of the laws is even less tenable than the one considered. It 
 seems to rest upon the theory that legislation which is special 
 in its character is necessarily within the constitutional inhibi- 
 tion ; but nothing can be further from the fact. The greater 
 part of all legislation is special, either in the objects sought 
 to be attained by it or in the extent of its application. . . . 
 The hazardous character of the business of operating a rail- 
 way would seem to call for special legislation with respect to 
 railroad corporations, having for its object the protection of 
 their employees as well as the safety of the public. The 
 business of other corporations is not subject to similar dangers 
 to their employees, and no objection therefore can be made 
 to the legislation on the ground of its making an unjust dis- 
 crimination. It meets a particular necessity, and all railroad 
 corporations are, without distinction, made subject to the 
 same liabilities. ... It is simply a question of legislative 
 discretion whether the same liabilities shall be applied to 
 carriers by canal and stage-coaches and to persons and cor- 
 porations using steam in manufactories." ^ While the ques- 
 
 1 Missouri Pacific R. R. v. Mackey, 127 U. S. 205, opinion by Field, J. 
 See Soon Hing ... Crowley, 133 U. S. 703; Barry v. McGhee, 100 Ga. 
 759; Schoolcraft v. Loniaville & N. R. R., 92 Ky. 233; Missouri Pacific 
 Railway f. Humes, 115 U. S. 512. In the latter case it was held that a 
 statute was not unconstitutional which imposed upon every railroad cor- 
 poration in the State ceri»in duties as to fencing its line. The court 
 said : " The objection that the statute . . . violates the clause of the 
 Fourteenth Amendment which prohibits a State to deny to any person 
 within its jurisdiction the equal protection of the laws, is . . . untenable. 
 
484 PERSONAL INJUHIES. [CHAP. VII. 
 
 tion who are fellow-serrants at common law is one of general 
 jurisprudence, as to which the Federal Courts are not gener- 
 ally controlled by the local decisions,^ yet, in the absence of 
 an act of Congress relating to the liability for negligence of 
 interstate railways, it is competent for a State to declare that 
 an employee of any railroad doing business in a State shall be 
 deemed, in respect to his acts within the State, the superior, 
 not the fellow-servant of other employees placed under his 
 control ; and the Federal Courts are bound to enforce such 
 enactments although these abrogate the principles of the 
 common law.^ 
 
 (b) Statutes applied to Umployers, Q-enerally. 
 
 § 227. The English Employers' Liability Act. — Tlie some- 
 what strict application, in favor of the master, by the English 
 courts, of the doctrines of " Employees' Risk," ^ " Common 
 Employment," and " Vice-Principal," * led to the enactment, 
 first, of the Employers & Workmen Act of 1876,^ and, later, 
 of the Employers' Liability Act of 1880, sometimes called the 
 " Gladstone Act." ® The substance of this Act has been 
 adopted into the legislation of Alabama^ and Massachusetts,^ 
 and as like rules are applied to the interpretation of the cor- 
 responding statutes in those States and of the English Act, 
 the important sections of the latter Act are printed in this 
 place : — 
 
 " Sect. 1. Where, after the commencement of this Act, 
 personal injury is caused to a workman (1) By reason of any 
 
 . . . The statute makes no discrimination against any railroad company. 
 . . . Each company is subject to the same liability, and from each the 
 same security, by the erection of fences, gates, and cattle-guards, is exacted. 
 . . . There is no evasion of the rule of equality where all companies are 
 subjected to the same duties and liabilities under similar circumstances." 
 
 1 Chapman v. Reynolds, 38 U. S. App. 686. 
 
 2 Peirce v. Van Dusen, 47 U. S. App. 339. See § 189 a, ante, and cases 
 cited. 
 
 8 See § 209, ante. * See § 217, ante. 
 
 fi 38 & 39 Vict. c. 90. « 43 & 44 Vict. o. 42. 
 
 ' Civil Code, 1896; o. 43, § 1749. 
 
 8 Acts, 1887, c. 270. See amendments by Acts, 1888, c. 155 ; 1892, a 
 260; 1893, c. 359; 1894, c. 499; 1897, c. 491. 
 
§§ 226-227.] employer's liability. 485 
 
 defect in the condition of the ways, works, machinery, or 
 plant connected with or used in the business of the employer ; 
 or (2) By reason of any negligence of any person in the 
 service of the employer who has any superintendence intrusted 
 to him whilst in the exercise of such superintendence ; or (3) 
 By reason of the negligence of any person in the service of the 
 employer to whose orders or directions the workman at the 
 time of the injury was bound to conform, and did conform, 
 where such injury resulted from his having so conformed ; or 
 (4) By reason of the act or omission of any person in the 
 service of the employer done or made in obedience to the 
 rules or by-laws of the employer, or in obedience to particular 
 instructions given by any person delegated with the authority 
 of the employer in that behalf ; or (5) By reason of the 
 negligence of any person in the service of the employer who 
 has the charge or control of any signal points, locomotive 
 engine, or train upon a railway, the workman, or in case the 
 injury results in death, the legal personal representatives of 
 the workman, and any persons entitled in case of death, shall 
 have the same right of compensation and remedies against 
 the employer, as if the workman had not been a workman of, 
 nor in the service of the employer, nor engaged in his work. 
 Sect. 2. A workman shall not be entitled under this Act to 
 any right of compensation Or remedy against the employer 
 in any of the following cases ; that is to say, (1) Under sub- 
 section one of section one, unless the defect therein mentioned 
 arose from, or had not been discovered or remedied owing to 
 the negligence of the employer, or of some person in the 
 service of the employer, and intrusted by him with the duty of 
 seeing that the ways, works, machinery, or plant were in proper 
 condition. (2) Under sub-section four of section one, unless 
 the injury resulted from some impropriety or defect in the 
 rules, by-laws, or instructions therein mentioned ; provided 
 that where a rule or by-law has been approved or has been 
 accepted as a proper rule or by-law by one of her Majesty's 
 principal secretaries of state, or by the Board .of Trade, or any 
 other department of the Government, under or by virtue of 
 any Act of Parliament, it shall not be deemed for the purposes 
 of this Act to be an improper or defective rule or by-law. 
 
486 PERSONAL INJURIES. [CHAP. VII. 
 
 Sect. 4.' An action for the recovery under this Act of com- 
 pensation for an injury shall not be maintainable unless notice 
 that injury has beeii sustained is given within six weeks, and 
 the action is commenced within six months from the occurrence 
 of the accident causing the injury, or, in case of death, within 
 twelve months from the time of death ; provided always that 
 in case of death the want of notice shall be no bar to the 
 maintenance of such action if the judge shall be of opinion 
 that there was reasonable excuse for such want of notice.^ 
 Sect. 7. Notice in respect of injury under this Act shall give 
 the name and address of the party injured, and shall state in 
 ordinary language the cause of the injury and the date at 
 which it was sustained, and shall be served on the employer, 
 or, if there is more than one employer, upon one of such 
 employers. The notice may be served by delivering the 
 same to or at the residence or place of business of the person 
 on whom it is to be served. The notice may also be served 
 by post by a registered letter addressed to the person on 
 whom it is to be served at his last known place of residence 
 or place of business, and, if served by post, shall be deemed to 
 have been served at the time when a letter containing the same 
 would be delivered in the ordinary course of post ; and, in 
 proving the service of such notice, it shall be sufficient to 
 prove that the notice was properly addressed and registered. 
 Where the employer is a body of persons corporate or unin- 
 corporate, the notice shall be served by delivering the same 
 at or by sending it by post in a registered letter addressed to 
 the office, or, if there be more than one office, any one of the 
 offices of such body. A notice under this section shall not be 
 deemed invalid by reason of any defect or inaccuracy therein, 
 unless the judge who tries the action arising from the injury 
 
 1 Section 3 provides a rule of damages under the Act, based upon the 
 earning of persons in like employment with the plaintiff, dui-ing the three 
 years preceding the injury. 
 
 2 Sub-section 5 of section 1 provides that there shall be deducted from 
 the damages in any case the amount of any penalty, or part of a penalty, 
 which, under any other Act of Parliament, may have been paid to the 
 plaintiff or his representatives, in respect of the same cause of action. 
 Section 6 fixes the jurisdiction of the county and superior courts in 
 lespect of actions brought under the Act. 
 
§§ 227-228.] EMPLOYER'S LIABILITY. 487 
 
 mentioned in the notice shall be of opinion that the defendant, 
 in the action is prejudiced in his defence by such defect or inac- 
 curacy, and that the defect or inaccuracy was for the purpose of 
 misleading. Sect. 8. For the purposes of this Act, unless the 
 context otherwise requires, — The expression ' person who has 
 superintendence intrusted to him ' means a person whose sole 
 or principal duty is that of superintendence, and who is not 
 ordinarily engaged in manual labor : The expression ' em- 
 ployer ' includes a body of persons corporate or unincorporate : 
 The expression ' workman ' means a railway servant and any 
 person to whom the Employers and Workmen Act, 1875, 
 applies. Sect. 9. This Act shall not come into operation until 
 the 1st day of January, 1881, which date is in this Act 
 referred to as the commencement of this Act. Sect. 10. This 
 Act may be cited as the Employers' Liability Act, 1880, and 
 shall continue in force till the 31st day of December, 1887,^ 
 and to the end of the then next session of Parliament, and no 
 longer, unless Parliament shall otherwise determine, and all 
 actions commenced under this Act before that period shall be 
 continued as if the said Act had not expired." 
 
 § 228. Interpretation of the Act. — In those cases provided 
 for by the terms of the Act in which the common law gives 
 the employee a remedy, he still has, at common law, a righl; 
 to sue under the same conditions, and to recover damages to 
 the same extent, as if the Act had not been passed.^ And the 
 notices required to be given, under the Act,3 so far as these 
 
 1 The Employers' Liability Act has been continued from time to time 
 by the " Expiring Laws Continuance Acts." 
 
 2 Kyalls V. Mechanics' Mills, 150 Mass. 190 ; Coughlin v. Boston Tow- 
 boat Co., 151 Mass. 97; Clark v. Merchants' & Miners' Transportation Co., 
 151 Mass. 352; Morrison v. Baird, 10 Ct. of Sess. Cas. (4th series), 271; 
 M'Donagh v. McLellan, 13 Ct. of Sess. Cas. (4th series), 1000. It is 
 held in Alabama that the liability of the employer under the statute does, 
 not arise out of the contract of employment which merely establishes the 
 relation of master and servant : and so a servant injured in another State 
 by the negligence of a fellow-servant under circumstances which would 
 not create liability in that Sta,te, cannot recover against his employer in 
 Alabama, although the contract was entered into and the services partly 
 performed here. Alabama Gt, So. K. R. v. Ca^roU, 97 Ala. 126. geei 
 §§ 28, 29, ante. 
 
 * 43 & 44 Vict. sect. 2, sub-sect. 3 ; sect. 8 ; Mass. Acts, 1887, c. 270, § 3 ; 
 
488 PERSONAL INJURIES. [CHAP. Til. 
 
 are applicable to the causes of action for which it provides, 
 are necessary only in those cases, if any, in which there is no 
 
 Ala. Code, 1896, § 1749, cl. 5. While the notices required by the statute are 
 not to be construed with technical strictness, they should at least appear 
 to be intended for the basis of a claim against the municipality, and to be 
 given on behalf of the person who brings the suit. Driscoll v. Fall River, 
 163 Mass. 105. See Mass. Act, 1888, c. 155. The notice will be suffi- 
 cient if it conveys substantially to the mind of the person to whom it is 
 given the name and address of the person injured and the time and cause 
 of the injury. Thus a letter from the plaintiff's solicitor gave the date of 
 the injury and stated that the plaintiff had been for some time under 
 treatment at a hospital " for injury to his leg." It was held that, con- 
 sidering the proviso, sec. 7, that the notice " shall not be deemed invalid 
 by reason of any defect or inaccuracy therein, unless the judge . . . shall 
 be of the opinion that the defendant is prejudiced in his defence by such 
 defect or inaccuracy, and that the defect or inaccuracy was for the purpose 
 of misleading, the defect in the notice did not render it invalid. Stone v. 
 Hyde, 13 Q. B. D. 76; see Clarkson v. Musgrave, 13 Q. B. D. 386; Brick 
 V. Bosworth, 162 Mass. 334. When a notice is given, purporting to be in 
 behalf of the injured person, by an attorney at law, especially if he after- 
 wards represents the plaintiff in his action, express authority to give the 
 notice may be presumed, in the absence of anything to defeat that pre- 
 sumption. Steffe V. Old Colony R. R., 156 Mass. 262. The mere omis- 
 sion of a date may not render the notice invalid. Carter v. Drysdale, 12 
 Q. B. D. 91. But a mere verbal notice will not be sufficient. Moyle v. 
 Jenkins, L. R. 8 Q. B. D. 116, and see Keene v. MLQwall Dock Co., L, R. 
 8 Q. B. D. 482. It is held even if the notice required by the third clause 
 of the Act does not sufficiently designate the cause of the injury, that the 
 employee may recover, if there is evidence for the jury in the case that 
 there was no intention to mislead and that the employer was not in fact 
 misled by the notice. Drommie v. Hogan, 1 53 Mass. 29. By the Mass. 
 St. 1888, c. 155, amending the Employers' Liability Act, Acts, 1887, c. 
 270, it is provided that the notice required by the statute " shall be in 
 ■writing, signed by the person injured or by some one in his behalf." It 
 was held that under this provision, the notice required to be given upon 
 the instantaneous death of a person, may be given by his widow. Gustaf- 
 sen V. Washburn & Moen Manuf'gCo., 153 Mass. 468; and, in a later 
 case, that the notice might be given by some one in the decedents' behalf 
 written 30 days from the occurrence of the accident; or by the decedent's 
 executor or administrator within 30 days after his appointment. Daly v. 
 N. J. Steel & Iron Co. , 155 Mass. 1 ; Jones v. Boston & Albany R. R. , 157 
 Mass. 51. See Mass. Act, 1888, c. 155; Act, 1892, c. 260. A notice is 
 not defective because it states different causes of the same accident, each 
 of which is adequately stated. Coughlan v. Cambridge, 166 Mass. 268. 
 It is held that if the notice is not served until after the writ is made, 
 
§ 228 .J employer's liability. 489 
 
 right of action at common law ; unless a plaintiff, having a 
 remedy at common law, should elect to rely upon the statute 
 alone.^ In the cases provided for by the Act, the master can- 
 not avail himself of the defence that the injury was caused by 
 the negligence of the fellow-servant of the plaintiff ; but con- 
 tributory negligence on the part of the plaintiff himself will 
 be a defence, and so will be the failure to give the notices pre- 
 scribed by the Act, when the action rests solely upon the 
 rights given by the statute.^ The burden of proof rests upon 
 the plaintiff, and if the testimony in the case is as consistent 
 with carelessness on his part as with the exercise of due care, 
 he cannot maintain his action.^ The Act * does not give the 
 administrator of an employee a right of action against an em- 
 ployer for causing the employee's death, in addition to the 
 right, as legal representative, to recover damages which ac- 
 crued to the intestate in his lifetime. The statute does not 
 purport to make the death a substantive cause of action. It 
 gives only the right of compensation and remedies, and it 
 gives them to the employee or his legal representative in case 
 of his death. It implies that his representatives are merely to 
 succeed to his rights and remedies. The law recognizes no 
 right of compensation for the death of a person, and gives to 
 a deceased person no remedies founded on his death.^ By the 
 Interpretation Clause of the English Act ® it is provided that 
 the expression " workman," as used in the Act, shall mean " a 
 railway servant and any person to whom the Employers and 
 
 although the notice is left at the defendant's house on the day of the date 
 of the writ, the action cannot be maintained. Yeginan v. Morse, 160 
 Mass. 143. 
 
 1 Ryalls V. Mechanics' Mills, 150 Mass. 190. 
 
 * Weblin r. BaUard, 17 Q. B. D. 122. 
 
 « Shea V. Boston & Maine R. R. 154 Mass. 31. See §§ 111, 135, ante. 
 The rale might be different in jurisdictions where it is held that contrib- 
 utory negligence is a matter of defence to be alleged and proved affirma- 
 tively by the defendant. See § 136, ante. 
 
 « 43 i 44 Vict, c 42, section 1, sub-sect 5; Mass. Act, 1887, c. 270, § 1, 
 cL 3, § 3 ; Code Ala. 1896, § 1752. 
 
 « Ramsdell p. New Tork & New England R R., 151 Mass. 245 ; Dacey 
 V. Old Colony R. R., 153 Mass. 112. See §§ 15, 16, ante, notes and cases 
 cited. 
 
 6 Sects. 
 
490 PERSONAL INJURIES. [CHAP, VII. 
 
 Workmen Act, 1875,^ applies." The latter Act, being for the 
 benefit of railway servants and others, and persons " otherwise 
 engaged in manual labor," it was held that the driver of a tram- 
 car was not a person to whom the . . . Act of 1875 applied, 
 and therefore that he was not entitled to the benefit of the Em- 
 ployers' Liability Act. The court said : " It is manifest from 
 the interpretation clause of the Employers and Workmen Act 
 . . . which is substantially made a part of the Employers' 
 Liability Act . . . that the latter Act was only intended to 
 apply to a class, limited by that clause. A driver is clearly 
 not within any of the terms mentioned in the section, but it is 
 said that he is ' otherwise engaged ' in manual labor. The 
 expression used, it should be noted, is not manual work, but 
 manual labor, for many occupations involve the former and 
 not the latter, such as telegraph clerks, and all persons en- 
 gaged in writing. I cannot see the distinction between driv- 
 ing and other occupations which involve no manual labor, 
 though they do involve manual work." ^ So it is held that an 
 omnibus conductor is not a person to whom the Act of 1875 
 applies, and so that he is not entitled to the benefit of the 
 Employers' Liability Act.* It is believed that the soundness 
 of the somewhat nice distinction between manual work and 
 manual labor taken in these cases has not been passed upon 
 in any of the American cases upon the subject. 
 
 § 229. Same Subject : Hoiv far the Act changes the Rule 
 of the Common Law. — The English cases hold that the pur- 
 
 1 38 & 39 Vict. e. 90. In this Act, § 10, the expression " workman " 
 does not include a domestic or menial servant, hut, otherwise, includes 
 any person who, being a laborer, servant in husbandry, journeyman ar- 
 tificer, handicraftsman, miner, or otherwise engaged in manual labor, 
 whether he be of full age or not, has entered into or works under a contract 
 express or implied, with an employer, personally to execute any work or 
 labor. 
 
 » Cook V. North Metropolitan Tramways Co., 18 Q. B. D. 683. 
 
 * Morgan v. London General Omnibus Co., 13 Q. B. D. 832. Where 
 the plaintiff had engaged with the defendant to assist him " as a practical 
 working mechanic in developing ideas " the defendant " might wish to 
 carry out, and to himself originate and carry out ideas and inventions 
 suitable to the business," it was held that the plaintiff was not " a me. 
 chanic or workman " within the meaning of the Act of 1875. Jackson v. 
 HiU, 13 Q. B. D. 618. 
 
§§ 228-229.] employer's liability. 491 
 
 pose of the Act is to put the servant, as respects his remedy 
 for injuries received while in the performance of his service, 
 on the same footing as a stranger coming upon the premises 
 by right to transact business with the master.^ And it is 
 obvious that the effect of the Act must be to modify the strict 
 rule laid down in the leading case of Wilson v. Merry ,2 under 
 which it was held by the English courts that the duty of the 
 master was fulfilled, as to providing suitable and safe ma- 
 chinery and appliances for doing the work, when he had pro- 
 vided such as were reasonably safe in the first instance. But 
 it has been stated that the weight of authority in the United 
 States holds that the master's duty to provide suitable appli- 
 ances is a continuing duty which he cannot avoid by delegation.^ 
 It is apprehended, then, that, in this respect, the effect of the 
 English Act is to apply to the cases the rule which had already 
 been held, at common law, by the American courts. It is said, 
 however, in Massachusetts, that the Act " so far changes the 
 common law as to give a right of action to a servant who is 
 injured by a defect in the machine, tool, or appliance itself 
 which is furnished for his use, although such defect arose from 
 the negligence of a fellow-servant whose duty it was to see that 
 the machine, tool, or appliance was in a proper condition." * 
 It would seem that this expression is to be taken to refer to the 
 rule of the common law as laid down in the English cases 
 already referred to, since the rule is well established, in 
 Massachusetts, that the negligence of the person charged with 
 seeing that appliances for doing the work are in proper con- 
 dition, is the negligence of the master for which he will be 
 responsible to the injured servant ; ^ and it is said that, before 
 the passage of the Employers' Liability Act, " it was settled 
 in Massachusetts that masters were personally bound to see 
 that reasonable care was used to provide reasonably safe and 
 proper machinery, so that, if duty was intrusted to another, 
 
 1 Thomas v. Quarterraame, 17 Q. B. D. 414, 420. 
 » L. R. 1 H. L. Sc. 326. 
 « See § 193, ante, notes and cases cited. 
 * Ashley v. Hart, 147 Mass. 573. 
 
 5 Ford ». FitchbuTg R R., 110 Mass. 240 ; Lawless v. Connecticut 
 River R. R., 136 Mass. 1 ; Rogers v. Ludlow Manuf'g Co., 144 Mass. 198. 
 
492 PERSONAL INJURIES. [CHAP. VII. 
 
 and was not performed, the fact that the proximate cause of 
 tlie damage was the negligence of a fellow-seryant was no 
 defence." ^ 
 
 § 230. Same Subject : Doctrine of " Employees' Risk," how 
 affected by the Act: Case of Thomas V. Quartermaine discussed. 
 — It has been stated that the tendency of the American cases 
 is to hold that when the employee is injured by reason of 
 patent defects existing in machinery or appliances with which 
 he works, the question of his right to maintain an action for 
 such injuries will depend upon whether or not he was guilty 
 of contributory negligence in continuing in the employment 
 under such circumstances ; it being considered that he does 
 not, as a matter of law, assume the absolute risk of injury .^ 
 The English cases, however, hold that the employee assumes, 
 when he enters upon the employment, all risks arising from 
 defects in machinery or appliances, so long as these are open 
 to observation.^ And this doctrine is not without support in 
 the United States.* From the earlier expressions upon this 
 subject, it would seem that the English court was disposed to 
 hold that this rule of absolute risk was modified, in favor of 
 the servant, by the Employers' Liability Act, it being the 
 intent of the statute to put the servant upon the same footing, 
 as regards his right of action for injuries received, with a 
 stranger.* In a later leading case, however, it was held, in a 
 majority opinion, that the defence arising from the application 
 of the doctrine of " Employees' Risk," had not been affected 
 by the Act.® In this case, the master was owner of a brewery, 
 in which was a vat full of scalding fluid. Around this was a 
 
 1 Ryalls V. Mechanics' Mills, 150 Mass. 190, 194. 
 
 » See Kane v. Northern Central R. R., 128 U. S. 91; Jones v. East 
 Tennessee, Va. & Ga. R. R., 128 U. S. 443, and other cases cited, §§ 207, 
 209, ante. 
 
 « See Priestley v. Fowler, 3 M. & W. 1; Williams v. Clough, 3 H. & N. 
 358; Seymour ii. Maddox, 16 Q. B. 326; 20 L. J. Q. B. 327, and other 
 cases cited, § 209, atUe. 
 
 * See cases cited, § 209, ante. 
 
 6 Weblin v. Ballard, 17 Q. B. D. 122. 
 
 8 Thomas v. Quartermaine, 18 Q. B. D. 685, per Bowen and Fry, L. 
 JJ., Lord Esher, M. R., dissenting. See also Yarmouth v. France, 19 Q. 
 B. D. 647. 
 
§§ 229-230.] employer's uabiuty. 493 
 
 rim of low height, and near it a boiling vat, from under which 
 the plaintifP, in the performance of his duty, attempted to pull 
 a board, which came out more quickly thau he expected, so 
 that he fell back into the scalding fluid and was injured. On 
 appeal, giving the opinion of the majority of the court, Bowen, 
 L. J., said : " Sect. 1 of the statute provides that : ' Where 
 personal injury is caused to a workman by reason of any 
 defect in the condition of the employer's works,' and in four 
 specified instances by reason of negligence of others in the 
 employer's service, ' the workman shall have the same right 
 of compensation and remedies against the employer as if the 
 workman had not been a workman of nor in the service of the 
 employer nor engaged in his work.' Does this language do 
 more than remove such fetters on the workman's right to sue 
 as had previously been held to arise out of the relation of 
 master and workman ? . . . An enactment which distinctly 
 declares that the workman is to have the same rights as 
 if he were not a workman, cannot, except by a violent dis- 
 tention of its terms, be strained into an enactment that the 
 workman is to have the same rights as if he were not a 
 workman, and other rights in addition." Proceeding then 
 upon the assumption, which seems to be admitted as sound in 
 most of the decided cases, that the master, under the Act, owes 
 to the workman such duties and such only as he would owe 
 to a third person who should enter the premises by his invita- 
 tion or procurement to transact business with him, the court 
 says : " In the absence of any further act of omission or com- 
 mission by the occupier of the premises, or his servants, or of 
 any disregard of statutory provisions, or of individuals' rights, 
 can it properly be said that there has been upon his part any 
 breach of duty towards a person who, knowing and appreciat- 
 ing the danger and risk, elects voluntarily to encounter them ? " 
 In another part of tiie opinion it is said : " Knowledge is not 
 a conclusive defence in itsell Bat when it is a knowledge 
 under circumstances that leave no inference open but one, viz., 
 that the risk has been voluntarily encountered, the defence 
 seems to me to be complete." The court would thus seem to 
 assume, as matter of law, that whoever knowing the condition 
 of premises approaches or enters them, does this at his peril as 
 
494 PERSONAL INJURIES. [CHAP. VII. 
 
 being conclusively presumed justly to appreciate the danger 
 which he encounters in so doing, — a doctrine which is opposed 
 to the general tenor of authority .^ And it is apprehended 
 that the rule is firmly settled that the question whether any 
 one entering a place in fact dangerous was guilty of contribu- 
 tory negligence in so doing is one of fact, unless the circum- 
 stances of danger were so grave and apparent as to convince 
 any reasonable person, at once, that the act of entering was 
 reckless. The court says further : " I employ a builder to 
 mend the broken slates on my roof, and he tumbles off. Have 
 I been guilty of any negligence or breach of duty towards 
 him ? Was I bound to erect a parapet round my roof before 
 I had its slates mended ? In the case now before us the 
 negligence relied on by the plaintiff is that a vat in the room 
 in which he worked was left without a railing. Let us 
 suppose that the defendant, impressed with the danger, had 
 actually sent for a builder to put one up, and the builder had 
 fallen in while executing the work. Would the defendant 
 have been guilty of a breach of duty towards the builder ? " 
 The reasoning of the court upon this branch of the argument, 
 so far as it is drawn from the illustrations adduced, seems to 
 rest upon an apparent fallacy. For it is evident, in the case 
 of the slater, that the danger of falling from the roof is a 
 danger manifestly and always attending the business of slating 
 roofs, and not a defect for which the owner of the house is 
 responsible ; and an analogous objection suggests itself to the 
 proposition that the workman sent for to make the vat safe, 
 if he falls into it, is injured by reason of a defect in the 
 appliances furnished him for doing his work ; the prescribed 
 work itself being to make that safe by the existence of which 
 he is injured, and the risk of injury from which he clearly 
 must assume, the danger being inseparable from the doing of 
 the work. Again, it is apprehended that if a stranger were 
 invited to come upon the premises to do business with the 
 owner, and by reason of falling into a vat carelessly left open, 
 was injured, the questions of the negligence of the parties 
 respectively, in an action for damages suffered by reason of 
 
 1 See Clarke v. Holmes, 7 H. & N. 937 ; §§ 144, 145, ante, notes and 
 cases cited. 
 
§§ 230-231.] employer's liability. 495 
 
 the injury, would be for the jury ; and the assumption that 
 the servant injured by falling into the rat would, if permitted 
 to sue for the injury, be put in a better position than a stranger, 
 would seem to be at least doubtful. It is difficult to reconcile 
 the expressions already quoted with that which follows, that 
 *' it was said, and said rightly, in Weblin v. Ballard,^ that in 
 an inquiry whether the plaintiff has been guilty of contribu- 
 tory negligence, the plaintiff's knowledge of the danger is not 
 conclusive. Obviously such knowledge may have even led 
 him to exercise extraordinary care." But the court says 
 further : " The doctrine of volenti non fit injuria stands out- 
 side the defence of contributory negligence and is in no way 
 related to it. In individual instances the two ideas sometimes 
 seem to cover the same ground, but carelessness is not the 
 same thing as intelligent choice, and the Latin maxim often 
 applies when there has been no carelessness at all." This 
 expression may be admitted to embody a correct definition of 
 the rule of Employees' Bisk, as laid down generally by the 
 English and by some of the American courts,^ but it has never 
 been attempted to apply a like doctrine of risk to any except 
 employees, plaintiffs; and considering the admission with 
 which the opinion starts out that the intent of the Act was to 
 place employees upon the same footing, in respect of remedies, 
 as strangers, it is difficult to understand how, under the Act, 
 they are stiU to be taken as precluded by a risk which a 
 stranger would not be assumed to take. In Alabama, it is 
 held that the statute does not apply to the known risks and 
 dangers of the service, nor relieve the employee from the obli- 
 gation to use due care ; ^ but that the plaintiff is not to be held 
 to assume the risk of the results of the employer's negligence.* 
 
 § 231. Same Subject. — While the majority opinion in 
 Thomas v. Quartermaine must be taken as establishing the 
 construction of the English Act, it is apprehended that that is 
 the more reasonable view of the law, as expressed in the dis- 
 
 1 17 Q. B. D. 122. ' See § 209, ante. 
 
 ' Mobile & Ohio R. R. v. George, 94 Ala. 199 ; Birmingham Railway 
 V. Allen, 99 Ala. 359; Bridges v. Tenn. Coal Co., 109 Ala. 287. 
 * Woodward Iron Co. v. Andrews, 114 Ala. 243. 
 
496 PERSONAL INJURIES. [CHAP. VII. 
 
 senting opinion, in the same case, of Lord Esher, M. R., which 
 holds in effect, that, under the Act, the conclusive presump- 
 tion that the employee takes the risk is removed ; and that the 
 question, as in other cases, will be : was the employee, in fact, 
 in entering upon, or continuing in the employment, under the 
 circumstances, guilty of contributory negligence ? Lord Esher 
 says: " The first thing to consider is what is the true con- 
 struction of the Employers' Liability Act, 1880. It has been 
 suggested that this Act has only the effect of doing away with 
 the doctrine of the immunity of the master from damage aris- 
 ing from the negligence of another servant in the common em- 
 ployment of the master. To my mind it is clear that the 
 statute has taken away from the master another defence. It 
 was, no doubt, held that a servant could not sue a master for 
 injuries arising from the negligence of a fellow-servant, but it 
 was also held that a man who went into any employment under- 
 took to take all the ordinary risks incident thereto, unless 
 they^ were concealed or were known to the master and not to 
 the servant. It seems to me clear that the Act has taken 
 away that defence from the master. I can see no difference 
 between contracting to take a risk upon one's self and under- 
 taking an employment to which the risk attaches. No one 
 ever suggested that there could be such a contract in the case 
 of any person other than a servant, so that when a servant is 
 put. on a footing with other persons that defence of the master 
 is gone. The case is reduced therefore to a personal action 
 founded on negligence. It is said that you cannot have a 
 liability for negligence except it be founded on a duty. The 
 duty, however, is, that you are bound not to do anything neg- 
 ligently so as to hurt a person near you, and the whole duty 
 arises from the knowledge of that proximity. Whether the 
 negligence is your personal act, or arises from using your 
 property in a particular way, the rule equally applies, and you 
 must so use your personal powers or property as not to injqre 
 any other person if by the exercise of reasonable care you can 
 avoid so doing. In an action for injuries arising from negli- 
 gence, it was always a defence that the plaintiff had failed to 
 show that as between him and the defendant the injury had 
 happened solely by the defendant's negligence. If the plain- 
 
§ 231.] employer's uability. 497 
 
 tiff by some negligence on his part directly contributed to the 
 injury, it was caused by the joint negligence of both, and no 
 longer solely by the negligence of the defendant, and that 
 formed a defence to the action. It seems to me that the Act 
 recognizes, if it does not impose, a duty on the part of the 
 master not to have his ways, machinery, or plant in such a 
 defective condition as to cause injury to the servant, and if he 
 fails in this he is not at liberty to set up that the injury arose 
 by the negligence of a fellow-servant of the plaintiff, nor that 
 the plaintiff, whether he knew or did not know of the defect, 
 had contracted that he would take the risk on himself. The 
 question therefore is, was the master negligent in allowing a 
 defect to exist in the works by reason of which defect the in- 
 jury has arisen, and if that is established, was the plaintiff 
 guilty of negligence directly contributing to the injury he has 
 sustained ? . . . The knowledge of the plaintiff of the want of 
 care of the defendant is not conclusive against the former, 
 though it is a material fact for the consideration of the jury 
 in determining whether, under all the circumstances, the 
 plaintiff was guilty of contributory negligence. The case of 
 Clarke v. Holmes ^ has been observed upon, but it has never 
 been overruled, and it seems to me to be this case. . . . The 
 fact, then, of the knowledge of the servant is not conclusive 
 against him. It is said that there is a difference which arises 
 where there is a statutory duty thrown on the master to fence 
 machinery, but it seems to me that exactly the same question 
 arises, and I cannot accede to that argument." Considering 
 that the admitted purpose of the Act is to place workmen 
 upon the same footing as strangers, as respects their right to 
 recover for injuries received through the negligence of the 
 master, it seems difficult to avoid the conclusion, the negli- 
 gence of the master being admitted, and it being also admitted 
 that the workman at common law took the risk of injury 
 from obvious defects, that the reasonable construction and 
 effect of the Act should be to make the plaintiff's right to re- 
 cover in any case to depend upon the question of fact whether 
 he was or was not, in doing what he did, guilty of conti-ibu- 
 tory negligence. Whether the rule held by the majority of the 
 
 1 7 H. & N. 937, 31 L. J. Ex. 356. 
 
498 PERSONAL INJURIES, [CHAP. VII. 
 
 court in Thomas v. Quartermaine that the employee accepts 
 the risk of injury from defects in machinery and appliances, 
 if these be apparent, and that this risk is not removed by the 
 Act, be sound or not, there can be no doubt that, under the 
 Act, the risk still subsists as to dangers which are the usual 
 and necessary concomitants of the work to be done ; since 
 these dangers do not arise out of any negligence on the part 
 of the master, and it is not to be supposed that the legislature 
 intended to make the master the insurer of the safety of the 
 employee. So, if the employee voluntarily undertake, out of 
 the line of his duty, to perform dangerous work, as to repair 
 defective machinery, he will take the risk of injury in doing 
 the work, since he will be acting not as a servant of his mas- 
 ter but as a mere intermeddler.^ 
 
 § 232. Defect in 'Ways, Works, Machinery^ or Plant, vr-hat. — 
 The English Act applies when the accident is the result of 
 " any defect in the condition of ways, works, machinery, or 
 plant, connected with or used in the business of the em- 
 ployer," 2 and a similar provision occurs in the • American 
 statutes.^ It is held, generally, that the test whether the 
 machinery or plant be defective or not, within the meaning of 
 the statute, is whether the machine was fit or unfit for the 
 purpose to which it was customarily applied ; and the same 
 test is applied as to a way.* The words " defect in the con- 
 dition of the . . . machinery" do not refer to its working 
 capacity, but to its condition in regard to the safety of the 
 
 1 Mellor V. Merchants' Manuf'g Co., 150 Mass. 362. In this case, an 
 employee in a mill had undertaken, of his own free wiU, to repair a danger- 
 ous pulley, and was injured in so doing, and it was held that the master 
 was not responsible for his injuries. It is apprehended that the case was 
 rightly decided upon the ground stated in the text; and that, although the 
 court seem to approve the majority opinion in Thomas v. Quartermaine, 
 the Massachusetts case stands upon different ground. 
 
 * Act 43 & 44 Vict., c. 42, sect. 1, sub-sect. 1. 
 
 8 Mass. Acts, 1887, c. 270, § 1, cl. 1 ; Ala. Code, 1886, § 2590, cl. 1. The 
 Massachusetts statute omits the word " plant." 
 
 * Heske v. Samuelson, 12 Q B. D. 30 ; Cripps v. Judge, 13 Q. B. D. 
 583 ; Thomas v. Quartermaine, 17 Q. B. D. 414, 418. A " hft," or elevator, 
 which is, in itself, in a dangerous condition, is ■within the class of danger- 
 ous machinery contemplated by the Act. Heske v. Samuelson, supra. 
 
§§ 231-232.] employee's lubiutt. 499 
 
 employees ; and if such a defect may be remedied by a tem- 
 porary device so as to remove danger, a failure to make use of 
 such a device may be negligence for which the employer may 
 be responsible.^ The word " works " means works already 
 completed, and not works in the course of construction which 
 are, on completion, to be connected with or used in the mas- 
 ter's business.' The statute applies to cases where the plant 
 is unfit for the purpose for which it is used, although no par- 
 ticular part of it is shown to be unsound. Thus an employee 
 was injured by the breaking of a ladder which was used to 
 support a scaffold and which was not sufficient for that pur- 
 pose, and the scaffold and ladder had been placed and were 
 being used under the direction of the defendant, and it was 
 held that the defendant might be liable under the Act.^ The 
 mere fact that a machine is dangerous does not show that it 
 is defective within the meaning of the Act, since the only de- 
 fects for which the master is liable are defects the existence of 
 which indicates negligence on the part of the master, or of 
 some one who has been intrusted by him with the duty of see- 
 ing that the machinery is in a safe condition.* Thus the 
 words " ways, works, and machinery " do not include a tres- 
 tle, the foundation of which was washed out by an extraor- 
 dinary flood, if the trestle was built in the manner common 
 on the best managed roads and it had afforded a safe passage 
 for the defendant's trains for fifteen years.^ It is said : " A 
 machine is a piece of mechanism which, whether simple or 
 compound, acts by a combination of mechanical parts, which 
 serve to create or apply power to produce motion, or to in- 
 crease or regulate the effect. . . . The carding, spinning, and 
 weaving machines, together with the instrumentality by which 
 the prime motive power is created or applied, constitutes the 
 machinery of a cotton-null. When cars, though used at 
 
 1 Willey r. Boston Electric Light Co., 168 Mass. 40. 
 
 » Howe r. Finch, 17 Q. B. D. 187. 
 
 ' Cripps V. Jadge, 13 Q. B. D. 583, and see also Heske v. Samnelson, 
 12 Q. B. D. 30. 
 
 * See Walsh v. Whiteley, 21 Q. B. D. 371 ; Filey v. Gamett, 16 Q. B. 
 D. 52. 
 
 6 Columbus & Western B. K. v. Bridges, 86 Ala. 448. 
 
600 PEBSONAL INJUBIBS. [CHAP. VU. 
 
 times, and at other times detached, are formed into a train, to 
 which the propelling force is imparted by means of a locomo- 
 tive, the entire train constitutes machinery connected with or 
 used in the business." ^ So a mere tool or instrument, such 
 as a hammer used for driving spikes into railway ties, is not 
 machinery, within the meaning of the Act.^ It is held that 
 movable stairs intended to furnish permanent access to a cel- 
 lar in which the employer was making alterations for the 
 owner of the building are not part of the employer's ways, 
 works, and machinery ; ^ and so with a movable scaffolding 
 made to be set up in different places in the master's mill or 
 yards ; * or a temporary staging put up by the employee or his 
 fellow-servants for the purpose of painting a building ; * or lad- 
 ders spliced together by the employees for the same purpose ; * 
 or a temporary staging put up by the employees, on the land 
 of a third personJ The course which a workman would in 
 ordinary circumstances take in order to go from one part of a 
 shop, where a part of the business is done, to another part 
 where the business is done, when the business of the employer 
 requires him so to do, is regarded as a " way " within the 
 meaning of the statute.* A car in use by, or in the possession 
 of a railroad, is a part of the ways, works, and machinery of 
 
 1 See Dacey v. Old Colony R. R., 153 Mass. 112. A wire which is' a 
 part of the electric signal service of a railroad, used to connect the joints 
 of the rails so as to insure the transmission of the electric current, afSxed 
 to the rail at either end, and following the rail until it reaches a sleeper, 
 then running out on the sleeper in a loop, and there fastened by staples, 
 is a part of the ways, works, or machinery of the railroad. Bronillette v. 
 Conn. River R. R., 162 Mass. 198. 
 
 2 Georgia Pacific R. R. v. Brooks, 4 So. Rep. 289 (Ala. 1888). But 
 where a ladder was not in proper condition for the purpose for which it 
 was used, it was held that there might be a recovery under the Act. Web- 
 lin V. Ballard, 17 Q. B. D. 122. 
 
 * Regan v. Donovan, 159 Mass. 1. 
 
 ♦ Prendible v. Conn. River Manuf'g Co., 160 Mass. 131. 
 
 ^ Adasken v. GUbert, 165 Mass. 443 ; or for slating a roof, Reynolds v. 
 Barnard, 168 Mass. 226. 
 
 • McKay v. Hand, 168 Mass. 270. 
 
 ' Bums u. Washburn, 160 Mass. 457. 
 
 « Willetts V. Watt (1892), 2 Q. B. 98; Dolphin v. Plumley, 167 Maas. 
 167 ; and see Hanlon v. Thompson, 167 Mass. 190. 
 
§§ 232-233. employer's uabiutt. 501 
 
 the railroad, whether the car is owned by it or by some other 
 company.^ A number of cars coupled together, forming one 
 connected whole and moving from one point to another upon 
 a railroad, in the ordinary course of its traffic, under an im- 
 petus imparted to them by a locomotive which has been de- 
 tached, constitutes a " train " within the meaning of the Act.^ 
 It has been held that a railway track in the yard of A., owned, 
 maintained, and repaired by him, and used by a railroad under 
 a contract with him for the delivery of freight in the yard, is 
 not a part of the railroad's " ways." * While it may not be 
 necessary, in order to render an employer liable for an injury 
 occui-ring to an employee through a defect in ways, works, and 
 machinery, that these should belong to him, it should at least 
 appear that he has the control of them, and that they are 
 used by his authority, express or implied. Thus the occa- 
 sional use by each of two railway companies of the tracks of 
 the other in delivering and taking cars in the ordinary course 
 of business will not make the tracks of each a part of the 
 ways, works, and machinery of the other.* The inference is 
 that the employer shall be liable when a contractor does part 
 of his work and an employee of the contractor is injured by 
 reason of a defect in the condition of the ways, works, machin- 
 ery, or plant furnished by the employer to the contractor 
 which has not been discovered or remedied by reason of the 
 negligence of the employer, or of some person intrusted by 
 him with the duty of seeing that the appliances were in proper 
 condition. By the negligence of the employer is intended his 
 own negligence as distinguished from that of his servant or 
 superintendent.^ 
 
 § 233. As to Persona ezercising Superintendence. — The 
 English Act applies when the injury occurs "by reason of 
 
 1 Bowers v. Conn. River R K., 162 Mass. 312. See Fay v. Minn. & 
 St L. R. R., 30 Minn. 231. 
 
 » Caron r. Boston & Albany R R., 161 Mass. 523. See Dacey v. Old 
 Colony R. R., 153 Mass. 112. 
 
 » Engel V. N. T., Prov. & Boston R. R., 160 Mass. 260. See the elab- 
 orate dissenting opinion by Enowlton, J. 
 
 * Trask v. Old Colony R. R., 156 Mass. 268; Coffee v. N. T., N. H. & 
 H. R. R., 155 Mass. 21. 
 
 ^ Toomey v. Donovan, 15S Mass. 232. 
 
502 PERSONAL INJUEIES. [CHAP. VII. 
 
 any person in the service of the employer, Trho has any super- 
 intendence intrusted to him, whilst in the exercise of such 
 superintendence ; ^ or by reason of the negligence of any per- 
 son in the service of the employer, to whose orders or direc- 
 tions the workman, at the time of the injury, was bound to 
 conform, and did conform, where such injury resulted from 
 his having so conformed." ^ Under the interpretation clause 
 of the Act,8 it is considered that the expression, " person whp 
 has superintendence intrusted to him," means, ordinarily, a 
 person whose sole or principal duty is that of superintendence^ 
 and who is not customarily engaged in manual labor; but 
 the mere fact that the superintendent sometimes performs 
 labor will not relieve the master from liability.* Thus the 
 plaintiff, with other workmen, was employed by the defendant 
 to stow bales of wool in the hold of a ship, the workmen being 
 divided into gangs, each under a foreman. The foreman of 
 the plaintiff's gang was himself a laborer, working on deck, 
 and giving a signal to the men below when bales were to be 
 dropped into the hold. The plaintiff was injured by a bale 
 which was dropped without sufficient warning. It was held 
 that the foreman was not a person to whom superintendence 
 had been intrusted, and that it did not appear that the injury 
 
 1 See. 1, sub-sect. 3. See Mass. Act, 1887, c. 270, § 1, cl. 2; Code, Ala. 
 1886, § 2590, cl. 2. If a superintendent of drunken habits, known to the 
 master, knowingly employs an intoxicated workman and orders him to do 
 an act manifestly dangerous to another workman, who is thereby injured, 
 the master is liable for such injury, both at common law and under the 
 Employers' Liability Act. McPhee v. Scully, 163 Mass. 216. 
 
 3 Sect. 1, sub-sect. 4. See Code, Ala., 1886, § 2590, cl. 3. 
 
 « Sect. 8. 
 
 * Kansas City, M. & B. K. R. v. Burton, 97 Ala. 240. See McPhee v. 
 Scully, 163 Mass. 216; O'Neil v. Leary, 164 Mass. 387; Davis ». N.T., 
 N. H. & H. R. R., 159 Mass. 532 ; Prendible v. Conn. River Manuf'g Co., 
 160 Mass. 131; Crowley i7. Cutting, 165 Mass. 436; Adasken v. Gilbert, 
 165 Mass. 443; O'Brien v. Rideout, 161 Mass. 170; Mahoney v. N.T. & 
 N. E. R. R, 160 Mass. 573; Gardner v. N. E. Telephone Co., 170 Mass. 
 156 ; Reynolds v. Barnard, 168 Mass. 226 ; Green v. Smith, 169 Mass. 485. 
 The engineer of a railway train is said to be not, ordinarily, a person who 
 has "superintendence intrusted to him," Dantzler v. De Bardebelen Co., 
 101 Ala. 309, but he is held to be a superintendent as to his fireman. 
 Culver V. Ala. Midland R. R., 108 Ala. 330. 
 
§ 233.] employer's uability. 503 
 
 resulted from the plaintiff's having conformed to any order of 
 the foreman, even assuming that the foreman was a person to 
 whose orders the plaintiff was bound to conform.^ An em- 
 ployee may have two duties ; he may be a superintendent for 
 some purposes and also an ordinary workman, and if he is 
 negligent in the latter capacity the employer is not answer- 
 able. Unless the act complained of is one of direction or 
 oversight, tending to control others and to vary their situa- 
 tion or action, because of his direction, it cannot be said to be 
 an act in the doing of which the doer is in the exercise of 
 superintendence.^ On the other hand, the plaintiff will not 
 be precluded from a recovery merely by the fact that the per- 
 son who was actually exercising superintendence, and in the 
 carrying out of whose orders the plaintiff was injured, was at 
 the time of the accident volimtarily assisting in manual labor .^ 
 Thus where the plaintiff was engaged under the orders of a 
 carman employed by the defendant, in unloading a van, the 
 carman assisting in the work, and, obeying an implied direc- 
 tion of the carman, the plaintiff proceeded to do the work in 
 
 » Kellard v. Rooke, 19 Q. B. D. 585, 21 Q. B. D. 367. 
 
 3 Shaffers v. General Steam Navigation Co., 10 Q. B. D. 356. In this 
 case the plaintiff and J. were employed together with others by the de- 
 fendant in loading sacks of grain into the hold of a ship, and J.'s duty 
 was to gnide the crane by means of a guy-rope, and to give directions 
 vrheu to lower and hoist the crane, and, by his neglect to use the guy-rope, 
 the plaintiff was injoied, it was held that J. was " engaged in manual 
 labor," and was not " a person having superintendence intrusted to him " 
 within the meaning of sec. 1, sub-sec. 2, as defined by sec S. Where a 
 qnarryman, in general charge of a quarry, finding that the wadding still 
 remained in a hole which he had assisted in drilling and loading with 
 powder, and had attempted to discharge, negligently directed a fellow- 
 workman to assist him in drUling out the wadding, whereupon the charge 
 exploded, injuring the fellow-workman, it was held that the risk was not 
 one which the injured workman assumed under his contract, and that the 
 common employer might be liable under the Employers' Liability Act. 
 Malcolm r. Fuller, 152 Mass. 160. The court distinguish the case of 
 Eenney v. Shaw, 133 Mass. 501, where it was held, by the application of 
 the rule of the common law, that the negligence of the qnarryman, under 
 very similar circumstances, was that of a fellow-servant, for which the 
 common employer was not answerable. See Cashman v. Chase, 156 Mass. 
 342; Fit^erald r. Boston & Albany R. B., 156 Mass. 293. 
 
 « Osborne i-. Jackson, 11 Q. B. D. 619. 
 
504 PERSONAL INJUEIE8. [CHAP. Til. 
 
 a dangerous manner, and was thereby injured, it was held that 
 there was evidence in the case that the plaintiff was injured 
 by reason of the negligence of a fellow-workman to whose 
 orders the plaintiff was bound to conform and did conform, ^ 
 The employer is not liable as for the negligence of his super- 
 intendent in furnishing his employee with a defective appli- 
 ance, if the employer owes no duty to his employee to have 
 the appliance inspected before use, and if it is no part of the 
 superintendent's business to make such inspection, unless he 
 assumes to do so, with the employer's knowledge and consent, 
 as a part of the work which, as superintendent, he is employed 
 to do.2 The English Act provides that when " by reason of 
 the negligence of any person in the service of the employer, 
 who has the charge and control of any signal points, locomo- 
 tive engine, or train upon a railway, the workman, or, in case 
 the injury results in death, the legal personal representatives 
 of the workman, and any persons entitled in case of death, 
 shall have the same right of compensation and remedies 
 against the employer as if the workman had not been a work- 
 man of nor in the service of the employer, nor engaged in his 
 work."' In determining whether the person through whose 
 negligence the accident happens was " in charge or control," 
 within the meaning of this provision, ordinary rules are ap- 
 plied ; and it is held that if it appears that such person was 
 not charged, as a vice-principal, with the control of the appli- 
 ances mentioned in the section, the plaintiff cannot recover* 
 
 1 Milward v. Midland Railway, 14 Q. B. D. 68. 
 
 2 Shea V. WeUington, 163 Mass. 364. 
 
 « Sect. 1, sub-sect. 5. See Mass. Act, 1887, c. 270, § 1, cl. 3; Code, 
 Ala., 1886, § 2590, cl. 5. 
 
 * But in Massachusetts it is held that the words "who has charge or 
 control of any train, etc.," mean one who, for the time being, at least, 
 has immediate authority to direct the movements and management of the 
 train as a whole and of the men engaged upon it ; and such person need 
 not be upon the train itself ; he may be a laborer or a brakeman ; and it 
 is possible that more than one person may have "the charge or control" 
 of a train at the same time. Caron v. Boston & Albany R. R., 164 Mass. 
 523. So if a conductor engaged in " distributing " the cars of a train 
 carelessly directs the locomotive against them, so that a brakeman on one 
 of the cars is injured by the collision of the car with a "bunting post," 
 the accident will be taken to be due to the negligence of the person " in 
 
§ 233.] employer's uability. ^ 60& 
 
 Thus it was the duty of an employee in the signal depart- 
 ment of the defendant's railroad to keep in order the locking 
 apparatus along a pai't of the line, and to make slight repairs, 
 and for tliis purpose he was with several others subject to the 
 orders of an inspector who was generally responsible for the 
 work done. The plaintiff, who was employed in the same work, 
 being injured by the negligence of the first employee, it was 
 held that tlie defendant railroad was not responsible for the 
 injm-y.i But where it was the business of a railway employee 
 to propel cars along a line of rails at a station, he having the 
 sole responsibility of doing tlie work properly, and by reason 
 of his negligence in doing the work, another employee, en- 
 gaged in similar work at the distance of about three hundred 
 feet, was injured, it was held that the negligent employee was 
 a person who had the charge or control of a train upon a 
 railway, and so that the defendant was responsible for the 
 injury.* The conductor of a freight train may properly be 
 found to have been in charge thereof, when a brakeman on 
 the train is injured by reason of a defect in one of the cars, 
 although such conductor is temporarily absent upon a duty 
 incident to the proper management of the train, and nothing 
 is done meanwhile contrary to his orders or expectation of 
 what would be done.^ The word " railway," as used in the 
 Act, does not intend merely railways incorporated for general 
 purposes, such as are subject to the provisions of the Railway 
 Regulation Acts, but it includes also temporary railways, as 
 one laid down by a contractor for building purposes.* A loco- 
 motive and one or more cars, connected together and run upon 
 a railroad, constitute a "train" within the meaning of the 
 Acts.^ 
 
 charge " of the train, althoogh the car is, at the moment of the accident, 
 separated from the other cars of the train. Devine v. B. & A. R. R., 159 
 Mass. 348. The person in chaige or control of a train may be the engine* 
 driver or fireman, according to ciicomstances. McCord v. Cammell (1896X 
 A. C. 57. 
 
 1 Gibbs V. Great Western Railway, 11 Q. B. D. 22, 12 Q. B. D. 208. 
 
 « Cox V. Great Western Railway, L. R. 7 Q. B. D. 106. 
 
 * Donahae v. Old Colony R. R., 153 Mass. 356. 
 
 * DoughJy o. Krbank, 10 Q. B. D. 358. 
 
 s Dacey v. Old Colony R. R.. 153 Mass. 112. 
 
506 PERSONAL INJUBIKS. [CHAP. VII, 
 
 § 234. Agreement by the Employee not to take advantage of 
 the Act : Effect of. — It is held in England that if a workman 
 make a contract with his master not to seek compensation for 
 personal injuries under the Act, such an agreement is not 
 against public policy, and so that the widow of an employee 
 killed in the service, who, but for such an agreement on his 
 part might have recovered damages for his death, will thereby 
 be debarred from a recovery. This is upon the general 
 ground that the effect of the statute upon the contract of 
 service is merely to remove the presumption of an agreement 
 by the servant to take the risk of injury by the negligence of 
 his fellow-servant, and so that if the servant choose to waive, 
 ■ by stipulation, the benefits of the Act, the law will give effect 
 to the stipulation.* In Georgia, under the statute enlarging the 
 liability of railway corporations for injuries occurring to their 
 employees,^ it has been held, generally, that a stipulation that 
 the employee will take the risk of injuries caused by the negli- 
 gence of a fellow-servant is valid as against the employee, 
 unless there was such extreme negligence on the part of the 
 defendant as to show a recklessness of human safety ; or unless 
 the plaintiff was ignorant of the defect in the instrument 
 furnished when he was called upon to use it.^ In Kansas, 
 however, under a similar statute,* it is held that a contract made 
 in advance, whereby the servant agrees to hold the master 
 harmless from the consequences of negligence for which the 
 statute makes the master liable, is invalid ; since it would be 
 against public policy for the law to uphold contracts, made in 
 advance, for the release of a statutory liability. The court says : 
 " The general principle deduced from the authorities is that an 
 individual shall not be assisted by the law in enforcing a 
 contract founded on a breach or violation on his part of its 
 principles or enactments ; and this principle is applicable to 
 legislative enactments, and is uniformly true in regard to all 
 statutes made to carry out measures of general policy ; and 
 the f ule holds equally good, if there be no express provision 
 
 1 Griffiths V. Dudley, 13 Q. B. D. 537. 
 ! Code, 1873, §§ 2083, 3036. See § 225, ante. 
 « Western & Atlantic R. R. o. Bishop, 50 Ga. 46& 
 * Acts, 1874, c. 93, § 1. See § 225, ante. 
 
§ 234.] emplotek'^ liabilitt. 507 
 
 of the statute peremptorily declaring all contracts in violation 
 of its provisious void, in regard to all statutes intended 
 generally to protect tlie public interests, or to vindicate public 
 morals." ^ In some of the States, it is provided by the statute 
 that a contract shall be ineffectual and void which pui-- 
 ports to relieve the employer from the statutory liability.^ In 
 Massachusetts, before the enactment of the Employers' 
 Liability Act of 1887, it was provided that " no person or cor- 
 poration shall, by special contract with persons in its employ, 
 exempt him or itself from any liability which he or it might 
 otherwise be under to such persons, for injuries suffered by 
 them in their eifiployment, and which result from the 
 employer's own negligence or from the negligence of other 
 persons in his or its employ." * 
 
 1 Kansas Pacific R. R. v. Peavey, 29 Kan. 170. 
 » Iowa, Rev. Code, 1S80, § 1307; Wyoming, Comp. Laws, c. 97, § 1. 
 See § 225, ante. 
 
 * Pub. Sts. Mass. c. 74, § 3. 
 
INDEX. 
 
INDEX. 
 
 [the figures refer to the paragraphs.] 
 
 A. 
 ABATEMENT, 
 
 of action at common law by death of the plaintifE . 21, note 
 ABUTTER, 
 
 on highway, liable for dangerous obstruction . . . 187 
 
 for dangerous sidewalk 187 
 
 for sidewalk on his own laud, he inviting the public 
 
 to use it 187 
 
 for nuisance created or permitted 3, 187-189 
 
 rule modified as to way created by dedication . 187 
 (See XuisANCK.) 
 ACCIDEN'T, 
 
 occurency of, does not create presumption of negli- 
 gence Ill 
 
 but facts of accident competent evidence upon 
 
 the issue Ill, and note 
 
 ACTIONS, 
 
 of tort for injuries 1-4 
 
 concurrent, in contract, when resting on breach of 
 
 warranty 5 
 
 created by statute 7 
 
 by one, for injury to another 1, 8-14 
 
 for loss of services 8-14 
 
 for injury to servant 10, 11, and iwte 
 
 to child 12, 13 
 
 to wife 14 
 
 penal, or quasi penal. (See Penalties.) 
 
 statutes providing for survival of 7, 17 
 
 for death » . . . . 17-30 
 
 (See Death ; Suevival of Actioxs.) 
 
512 INDEX. 
 
 ACTIONS — continued. 
 
 foreign, whea maintained 29 
 
 {See Venue.) 
 at common law, abate by death of plaintiff . . . 21, note 
 ADMINISTEATOE. {See Executoe ob Administratoe.) 
 AGE, 
 
 of plaintiff, bearing on question of contributory neg- 
 ligence 142 
 
 (See Infant.) 
 ANIMAL, 
 
 Owner or keeper of: 
 
 bound to use care proportionate to danger . . 125 
 so may be negligence to leave horse unhitched . 125 
 as to domestic animal, not bound to anticipate 
 
 danger 126 
 
 unless aware of its vicious propensity . . 126 
 contrary rule held as to animals ferae naturae . 126 
 scienter, when to be alleged and proved . . . 126 
 implied warranty as to animals furnished for hire 126 
 wanton negligence inferred from keeping of fero- 
 cious animal 127 
 
 although animal be accidentally irritated . 127 
 but not if it be wilfully provoked .... 127 
 application of the rules stated in case of fero- 
 cious dogs 126, nx)te, 127, note 
 
 ownership of animal not material, person har- 
 boring liable 128 
 
 so master, if he permits his servant to harbor . 128 
 statutes enlarging common-law liability as to 
 
 dogs 126, 128, note 
 
 APOTHECAEIES, 
 
 responsibility of, for negligence 34, 131 
 
 {See Dangeeous Aeticles.) 
 APPLIANCES, 
 
 duty of master as to, generally 192, 193 
 
 promise by master to make safe, effect of ... . 212 
 {See Maohineet; Mastbe.) 
 ATTAINDER, 
 
 not known in the United States 2 
 
 AWNINGS, 
 
 over highway, responsibility of municipality for . . 180 
 {See Abtjtteb.) 
 
INDEX. 513 
 
 R 
 
 BELL AND WHISTLE. (See Warnings and Signals.) 
 BICYCLE, 
 
 is a vehicle 166 
 
 rider of, duty at railway crossings 161, note 
 
 BLINDNESS, 
 
 of plaintiff, bearing of, on question of contributory 
 
 negligence 146 
 
 BRIDGES, 
 
 duty of railroad respecting, as to employees . . . 195 
 of municipality to maintain .... 175, note, 177 
 (*See Highway.) 
 BUILDING, 
 
 master liable to employee for injury caused by in- 
 herent defect in 197 
 
 persons engaged in demolishing, assume ordinary 
 
 risks of injury 205 
 
 dangerous, abutting on highway, a nuisance . . . 187 
 {See OwNEK AND Occupant.) 
 
 so, under Employers' Liability Acts 228 
 
 rule changed by statute in certain cases . Ill, and note 
 BUEDEN OF PEOOF, 
 
 on plaintiff, generally, to show defendant's negligence 111 
 on the issue of contributory negligence .... 135-139 
 
 {See CoNTEiBUTOKT Negligence.) 
 on employee, to show master's negligence as to ma- 
 chinery and appliances 194 
 
 or that he has employed incompetent servants . 199 
 rule not changed by Employers' Liability Acts . . 218 
 
 C. 
 CAPACITY, 
 
 of plaintiff, bearing on question of contributory neg- 
 ligence 142 
 
 CAEEIEES OF MERCHANDISE, 
 
 dangerous articles intrusted to 130, 132 
 
 CAEEIEES OF PASSENGEES, 
 
 liable in tort or contract 6 
 
 33 
 
514 INDEX. 
 
 CAKEIEES OF PASSENGEES — com^mwed. 
 
 made subject to penalty by statute 24 
 
 duty of, subsists independent of contract . . 4, 32, 116 
 liable for wrongs committed by servants against pas- 
 sengers 38 
 
 although act not done within scope of servant's 
 
 employment 38 
 
 liable for negligence of third person, or corporation, 
 
 in privity 46 
 
 so, if the corporation be foreign 46 
 
 so, for negligence of a licensee 48 
 
 rule illustrated in case of sleeping car companies . 47 
 
 connecting railroads 47 
 
 so, notwithstanding lease illegally made 49 
 
 certain statutory limitations of the rule 60 
 
 measure of duty towards passengers generally . . . 113 
 
 does not warrant safety 113 
 
 as to whom the duty subsists 114, 115 
 
 proprietors of passenger elevators, are . . . 113, note ' 
 
 (See Passenger.) 
 cannot avoid responsibility by contract .... 6, 116 
 
 contrary authority 116 
 
 as to persons carried gratuitously 117 
 
 duty, as to employees, to provide safe appliances . . 155 
 {See Eailkoad.) 
 CAES, 
 
 duty of railroad respecting, as to its employees . . 195 
 
 CAUSA PEOXIMA NON EEMOTA SPECTATUE, 
 maxim. (See Pkoximate Cause.) 
 
 CHAEITABLE COEPOEATIONS, 
 
 liability of, limited 44 6 
 
 CHAETEE. (/See Municipality.) 
 
 CHILD, 
 
 action for injuries to 12, 13 
 
 (See Infant.) 
 COMBUSTIBLES. (See Dangerous Articles.) 
 
 COMMON EMPLOYMENT, 
 
 persons engaged in, ordinarily fellow-servants 214, 216, 217, 
 
 218 
 (See Fellow-Skevant.) 
 
INDEX. 515 
 
 "COMPAEATIVE NEGLIGENCE," 
 
 doctrine of, disapproved 102 
 
 (See Negligence.) 
 CONDITION, 
 
 duties of municipalities depending on, in England . 53 
 CONDUCTOR, 
 
 of railway train, whether fellow-servant of trainmen 
 
 218, 223 
 (See Feliow-Servaht.) 
 CONSOLIDATION, 
 
 of railroads, effect on liability 49 
 
 CONSTITUTIONALITY, 
 
 of statutes incrfeasing employers' liability .... 226 
 CONSTEUCTION, 
 
 duty of railroad as regards 119 
 
 {See EAiiiBOADS.) 
 
 of municipality as to highway 175 
 
 (See Highways.) 
 CONTRACT, 
 
 action of, for injuries, when it lies 5 
 
 between servant injured and defendant 11 
 
 to relieve carrier of passengers of common-law duty, 
 
 void, semble 116, 117 
 
 to relieve master of duty imposed by statute, effect of 234 
 ((See Ehplotebs' Liability Acts.) 
 CONTRACTOR, 
 
 employer not liable for acts of 39 
 
 nor for acts of sub-contractor 39, 40 
 
 except upon highways 172, 179 
 
 unless, acting in right of the employer, he creates a 
 
 nuisance -12, 43, 179 
 
 may be, at same time, servant 41 
 
 creating obstructions in highway, liable 190 
 
 CONTRIBUTION, 
 
 between joint tort-feasors 191, note 
 
 CONTRIBUTORY NEGLIGENCE, 
 
 consists in want of due care 134 
 
 rule that absence of, must be shown by plaintiff . . 135 
 
 held to be matter of defence 136 
 
 and to be pleaded as such 136, and note 
 
 application of the conflicting rules 137 
 
 when question of fact, and when of law 138 
 
516 INDEX. 
 
 CONTKIBUTOET "KEGU-GENCE— continued. 
 
 defeats action at common law 91, 134 
 
 exceptions to rule created by statute .... 139 
 
 unlawful act of plaintiff contributing 140 
 
 violation of statute or ordinance 141 
 
 utmost care not required 142 
 
 assumption of unnecessary risk 143 
 
 entering premises of another 144, 145 
 
 obligation to use senses 144 
 
 of third party, to defeat action for injury by high- 
 way accident 169 
 
 of fellow-servant, not to defeat action by injured em- 
 ployee against the common master .... 103, 201 
 rule applied when employee is injured by reason of 
 
 patent defects in appliances 207, 208 
 
 contrary authority 209 
 
 so as to work done outside scope of employment . . 211 
 or as to work done upon master's promise to make 
 
 appliances safe 212 
 
 of master, with negligence of fellow-servant, master 
 
 liable to injured servant 215 
 
 defence of, not taken away by Employers' Liability 
 
 Acts 228 
 
 Of persons under disability : 
 
 blind, lame, or deaf persons 146 
 
 intoxicated persons 147 
 
 Of infanis : 
 
 age and capacity of, to be considered .... 148 
 
 otherwise, ordinary rules applied 148 
 
 infant trespassers, no exception to ordinary rule 
 in favor of . . . .75, 76, note following 78, 148 
 Of parent or guardian : 
 
 imputed to infant in certain jurisdictions . 107, 149 
 
 contrary rule 108 
 
 will defeat action for loss of service 108 
 
 what will constitute 149 
 
 Of employees : 
 
 ordinary rules applied 150 
 
 except as modified by doctrine of Employees' 
 
 Eisk 150 
 
 rule illustrated in railway cases 151, 154 
 
 violation of rules by, effect 153, 154 
 
INDEX. 617 
 
 CONTEIBUTORT NEGLIGENCE — continued. 
 Of passengers : 
 
 consists Id disregard of ordinary risks .... 155 
 
 statutory exceptions to the general rule . . 139 
 
 violation of rules of carrier, effect 156 
 
 evasion of fare, fraudulent, defeats remedy . . 156 
 
 conduct on railway trains 157 
 
 at stations 157 
 
 leaving or boarding trains 158 
 
 leaving moving train, whether negligence per se 158 
 
 in street cars 159 
 
 on vessels 160 
 
 At railway crossings : 
 
 entering on, without looking, negligence . . 161, 163 
 
 limitations of the rule 161 
 
 right to rely on signals and warnings .... 162 
 
 view of crossing obstructed 163 
 
 (See Street Railways.) 
 Of travellers on highways: 
 
 have right to assume safety of way 164 
 
 knowledge of defect not conclusive of negligence 165 
 
 looking out for other travellers, driving . . . 166 
 
 racing on highway, negligent 166, note 
 
 (See Due Cake; Negligence; Proximate Cause.) 
 COEPOKATION, 
 
 liable for torts of its servants 44 
 
 in receivership, when not liable 44 a 
 
 charitable, liability of limited 44 6 
 
 corporation and servant may be joined 45 
 
 (See Carriers of Passengers; Mxtnicipalitt.) 
 
 COUNTS, 
 
 in tort and contract, plaintiff may join and elect 
 
 which to pursue 5 
 
 COinSTTT. (See Municipality.) 
 CKnriNAL EEMEDT, 
 
 independent of the civil action 2 
 
 against physician for negligence 133 
 
 (See Indictment.) 
 CROSSING. (<S^ee Railroad Crossing ; Street Railways.) 
 
 CULVERTS, 
 
 duty of railroad respecting, as to employees • . . 195 
 
518 INDEX. 
 
 D. 
 
 DAMAGES, 
 
 for injuries to another than plaintiff 9 
 
 for injury to servant 10 
 
 for injury to child 12 
 
 for injury to wife 14 
 
 in actions that survive by statute 20 
 
 in actions for death 23 
 
 not recoverable at common law 15 
 
 contrary authority 16 
 
 double, for injuries by dog 126 
 
 DANGEEOUS ARTICLES, 
 
 master liable for negligence of servant in charge of . 4, 34 
 
 negligence in intrusting to others 129 
 
 to carriers 130 
 
 placed in combination with other things 132 
 
 gas ; electricity 131 
 
 apothecaries 34, 131, 132 
 
 combustibles 131, 132 
 
 explosives 131, 132 
 
 poisons 129, 131 
 
 (^ee Necjligencb.) 
 DEAFNESS, 
 
 of plaintiff, bearing of, on question of contributory 
 
 negligence 146 
 
 DEATH, 
 
 survival of action in case of 17 
 
 provided for by statute 17 
 
 no action unless party survives the injury ... 18, 19 
 
 rule of damages 20 
 
 no action for, at common law 15, 21 
 
 contrary authority 16 
 
 so, under Employers' Liability Acts 228 
 
 created by statute 21, 22 
 
 rule of damages in 23 
 
 venue of action for 26, 30 
 
 {See Venue.) 
 DEDICATION, 
 
 municipal liability attaches as to ways created by . 171 
 rule modified as to nuisance subsisting in . . . 187 
 
INDEX. 619 
 
 DEFECT, 
 
 in highway, knowledge of, not conclusive of negli- 
 gence 165 
 
 what 174, 176, 177 
 
 in machinery or appliances, latent, master not an- 
 swerable for injury caused to employee by . . . 194 
 
 duty of master to test for 194 
 
 {See Master.) 
 employee does not assume risk of injury from . 206 
 patent, whether employee assumes the risk of injury 
 
 207-209 
 (/S'ee EMPLorsEs' Eisk.) 
 
 in ways, works, machinery, &c., what under Employ- 
 ers' Liability Acts 232 
 
 DEGEEES OE NEGLIGEISTCE, 
 
 law does not recognize 92, and notes 
 
 DELEGATION, 
 
 duty of municipality, as to highways, not avoided by 172 
 duty of master to provide suitable appliances not to 
 
 be avoided by 193 
 
 nor his duty to instruct employee 202 
 
 (^See Master.) 
 of master's authority, constitutes vice-principal . 220-223 
 (/See Eellow-Sekvant.) 
 DOG, 
 
 penal action for injury by 9, note 
 
 double damages provided for 126 
 
 infant striking and bitten by, may maintain action 
 
 against the owner 148 
 
 (See Animal.) 
 DEIVEE, 
 
 of vehicle, formerly held in England, to be identified 
 
 with the passenger 104 
 
 rule not accepted in the United States .... 105 
 unless passenger controls driver .... 106 
 
 of horse, bound to see where he is going 125 
 
 duty of, approaching railway crossing 161-163 
 
 as to other travellers on highway 166 
 
 in the dark without lights 166 
 
 DUE CAEE, 
 
 defined 134 
 
 want of, constitutes contributory negligence . . . 134 
 
620 INDEX. 
 
 DUE CA'EE — continued. 
 
 presumed in certain jurisdictions 134, 136 
 
 so held to be matter of defence 136 
 
 rule that, must be affirmatively proved 135 
 
 application of the conflicting rules 137 
 
 question of, generally one of fact 138 
 
 when of law 138 
 
 necessity of proof of, removed by statute .... 139 
 (See CoNTKiBUTOET Negligence.) 
 
 E. 
 
 ELECTION, 
 
 of remedy in tort or contract 5 
 
 ELECTRIC LIGHT COMPANIES, 
 
 responsibility of, to the public 131 
 
 to employees 202 
 
 (See Dangerous Articles.) 
 
 ELEVATED RAILWAY, 
 
 frightening horses 99 
 
 ELEVATOE, 
 
 proprietors of, liable as passenger carriers, semhle 113, note 
 contributory negligence in entering 145 
 
 EMPLOYEE, 
 
 Contributory negligence of: 
 
 ordinary rules applied to determine .... 150 
 except as modified by rule of " Employees' Eisk " 150 
 (See Employees' Eisk.) 
 
 rule illustrated in railway cases 151 
 
 right to rely on signals and warnings .... 152 
 
 violation of rules, effect 153, 164 
 
 charged with duty of keeping machinery in order, 
 
 takes risk of injury from failure to do so ... 193 
 not fellow-servant of other employees, as to duty of 
 
 master delegated to him 193 
 
 duty of master in selecting 198 
 
 direct supervision of, by master, not required, semhle 200 
 contributory negligence of, with fault of master, not 
 
 to defeat action by injured employee 201 
 
 master required to instruct, when 202, 203 
 
INDEX. 521 
 
 EMPLOYEE — continued. 
 
 not bound to know latent, but only patent, defects . 202 
 (See Employees' EiISe; Fellow-Sekvant ; Master.) 
 EMPLOYEES' EISK, 
 
 doctrine of, includes ordinary and apparent dangers 204 
 
 but not extraordinary dangers 204 
 
 rule of, applied to minors 204 
 
 employee taken to understand ordinary forces of 
 
 nature 204 
 
 greater or less according to danger of employment . 205 
 
 rule illustrated 205 
 
 does not include dangers from hidden defects . . . 206 
 wbetber emplcfyee prudent a question of fact, gener- 
 ally 206 
 
 how affected by Employers' Liability Acts .... 230 
 As to defects which the employee has an opportunity to 
 detect : 
 
 whether doctrine of absolute risk applies . . . 207 
 weight of American authority in favor of rule 
 that question is whether employee guilty of 
 
 contributory negligence 207, 208 
 
 rule illustrated 208 
 
 contrary authorities, English 209 
 
 American 209 
 
 As to work done hy employee as a volunteer : 
 
 doctrine applied, if work was, in fact, voluntary 210 
 otherwise, if done by coercion of master . 210, 211 
 work done under threat of dismissal, whether 
 
 voluntary 210, 211 
 
 better view, that such threat amounts to 
 
 coercion 210, 211, 212 
 
 rax^vca. volenti non fit injuria, AiscM&s&A. . . 211 
 question, whether employee guilty of con- 
 tributory negligence 211 
 
 Promise hy master to make appliances safe, effect of: 
 rule that promise being made abrogates the risk ; 
 
 rule discussed 212 
 
 better opinion that question always of employee's 
 
 contributory negligence 212 
 
 As to injuries caused by negligence of fellow-servant : 
 (See Emploteks' Liability Acts ; Fellow-Servak-t.) 
 EMPLOYEE. (See Master.) 
 
522 INDEX. 
 
 EMPLOYEES' LIABILITY ACTS, 
 Applied to special cases : 
 
 to railroad corporations 225 
 
 in Minnesota, statute 225 
 
 in Georgia, statute 225, note 
 
 in Iowa, statute 225, note 
 
 in Wyoming, statute 225, note 
 
 in Kansas, statute 225, note 
 
 to carriers, generally 225 
 
 in Khode Island, statute 225, note 
 
 such statutes not unconstitutional 226 
 
 Applied to employers generally : 
 
 in England 227 
 
 Employers' and Workmen's Act, 1875, 38 & 
 
 39 Vict. c. 90 227 
 
 Employers' Liability Act, 1880 .... 227 
 
 operation of, time extended . . 227, note 
 
 in Alabama, Code, 1886, §§ 2590-2593 .... 227 
 
 in Massachusetts, Acts, 1887, c. 270 .... 227 
 
 amended, Acts, 1888, e. 155, etc. . . 227, note 
 
 American acts substantially founded on the English 
 
 Act 227 
 
 and interpreted by like rules 227 
 
 act does not take away common-law remedies . . . 228 
 
 common-law rules, how far changed by 229 
 
 doctrine of Employees' Eisk, how affected by . 230-232 
 defects in ways, works, machinery, or plant, what, 
 
 under the act 232 
 
 persons exercising superintendence, who, under the 
 
 act 233 
 
 agreement by employee not to take advantage of act, 
 
 held valid, in England 234 
 
 contrary rule held in the United States . . . 234 
 
 ENGINEEE, 
 
 of locomotive, fellow-servant of train-men .... 218 
 {See Fellow-Sekvant.) 
 
 EQUIPMENT, 
 
 duty of railroad as to 119 
 
 {See Eailroad.) 
 EVASION OE FAEE, 
 
 person guilty of, a trespasser 156, note 
 
INDEX. 623 
 
 EXCAVATION, 
 
 adjoining highway, may be a nuisance .... 3, 189 
 abutter liable for 3, 189 
 
 EXECUTOK OR ADMINISTRATOR, 
 
 may prosecute statutory actions for death .... 21 
 
 or actions which survive by statute 17 
 
 negligence of, as defeating action 108 a 
 
 rights of, not extended by Employers' Liability Acts 228 
 
 EXPLOSIVES. (iSee Dangekous Akticles.) 
 
 F. 
 FARE, 
 
 prepayment of, not necessary to constitute relation of 
 
 passenger 114, note 
 
 person evading payment of, a trespasser . . 156, note 
 FEDERAL COURTS, 
 
 venue of statutory actions, rule in 30 
 
 construction of State statutes modifying common law 
 
 liability in 139 a 
 
 vice-principal, defined in 222 
 
 FELLOW-SERVANT, 
 
 contributory negligence of, wiU not excuse negligence 
 
 of the master 201 
 
 generally, master not responsible for negligence of . 213 
 
 plaintiff assumes risk of injury by 213 
 
 risk implied in contract of service 213 
 
 but rule applies to negligence in respect to subject of 
 
 common employment 214 
 
 if negligence of master contributes to the injury he 
 
 is liable 215 
 
 rule illustrated in railway cases 216 
 
 Who are feUovj-servants : 
 
 question whether act done in scope of employ- 
 ment, or by delegated authority of master . . 217 
 broad construction of the rule in England . . 217 
 rule of respondeat superior, when applied to 
 
 charge master 217 
 
 persons engaged in common employment . . 214, 218 
 
 subdivisions of employment 218 
 
 illustrations of rule 218 
 
 (5ee Raileoad.) 
 
524 INDEX. 
 
 FELL0W-SEEVA:NT — continued. 
 
 persons working under contracts with different 
 
 masters, not 219 
 
 Vice-Principal, who is : 
 
 generally, person exercising delegated authority 
 
 of the master, is 220 
 
 having power to hire and discharge employees . 220 
 
 exercising general supervision 220, 221 
 
 in some matters, may be fellow-servant as 
 
 to others 220 
 
 as to act of, doctrine of respondeat superior ap- 
 plied to charge the master 221 
 
 person with duty of keeping appliances safe, is . 222 
 
 illustrations of the rule 222 
 
 rule applied as to employees of railways . . . 223 
 
 {See Kailroad.) 
 liability of master for negligence of, created by 
 
 statute 7 
 
 One fellow-servant liable to another: 
 
 his negligence a breach of common-law duty . . 224 
 possible distinction between misfeasance and 
 
 nonfeasance 224 
 
 (See Employees' Liability.) 
 FELONY, 
 
 civil remedy not suspended to await prosecution for , 2 
 FERAE NATtJEAE. {See Aitimal.) 
 •'FLYING-SWITCH," 
 
 making, in the dark, negligence 121, note 
 
 as to negligence of employee making, contrary to rule 154 
 
 FOEFEITURE, 
 
 not known in the United States 2 
 
 FEOGS AND SWITCHES, 
 
 duty of railroad respecting, as to its employees . 195, 208 
 
 G. 
 
 GAS, 
 
 accident from escape of, due care of plaintiff, how 
 
 shown 135 
 
 GAS COMPANIES, 
 
 responsibility of 131 
 
INDEX. 525 
 
 GATES, 
 
 at railroad crossing 123 
 
 « GLADSTONE ACT." (See Employees' Liability Acts.) 
 
 GUARDIAN. {See Parent.) 
 
 GUAEDS, 
 
 in highways 178 
 
 no common-law duty to provide for machinery . . 196 
 
 H. 
 HIGHWAY, 
 
 safety of, assumed 164 
 
 knowledge of defect in, not conclusive of negligence 163 
 liability of municipalities as to, created by statute 
 
 53, 54, 167 
 (See McTfioiPALiTY.) 
 duty to maintain and keep safe, generally . . 167, 175 
 exists, municipality having authority to levy 
 
 taxes for the purpose 167 
 
 statutes creating, to be strictly construed . . . 168 
 contributory negligence of third party to defeat 
 
 remedy 169 
 
 contra, as to mere accident contributing . . . 170 
 
 as to runaway accidents 170 
 
 when the liability attaches ......... 171 
 
 same whether way established by use or dedica- 
 tion 171 
 
 duty not be avoided by delegation 172 
 
 traveller, who is 173 
 
 one not a traveller has no ground of action .... 173 
 J)efects in : 
 
 what, generally 174 
 
 outside of the way 176 
 
 outside the travelled track 177 
 
 Obligations as to construction and maintenance : 
 
 generally 175 
 
 bridges 175, note, 177 
 
 railing^ and barriers 178 
 
 closing for repairs 179 
 
 overhanging objects 180 
 
 lights 179 
 
526 INDEX. 
 
 HIGHWAY — continued. 
 
 waterworks 1'° 
 
 sign-boards and awnings 180 
 
 Ice and snow : 
 
 when liability as to, attaches 181 
 
 when presence of, constitutes defect 182 
 
 defect from, due to artificial means 183 
 
 falling from roof 100 
 
 Of notice to the municipality: 
 
 generally ; may be implied 184 
 
 inferred from notoriety of the defect .... 184 
 
 unnecessary in case of nuisance 184 
 
 rule applied to sidewalks 184 
 
 statutory requirement of twenty-four hours' 
 
 notice 184 
 
 to defendant's officers or agents 185 
 
 who are officers affected 185, and note 
 
 notices in writing .... 186, and note following 
 sufficient unless defendant misled thereby . . 186 
 lAability of abutting owners : 
 
 liable for dangerous obstructions, generally . . 187 
 
 so for dangerous sidewalk 187 
 
 so for dangerous sidewalk on his own land, he 
 
 inviting the public to use it 187 
 
 rule modified as to abutter opening way by dedi- 
 cation 187 
 
 liable for nuisance created or permitted . . 187-189 
 Liability to abutting owners : 
 
 what will constitute a nuisance .... 187, 188 
 excavation adjoining highway may be . . . 3, 189 
 
 remedy against, in first instance 190 
 
 Municipality and third party : 
 
 option to sue either 190 
 
 rule applied in case of contractor 190 
 
 statutes making third party liable in first instance 190 
 requiring joinder of municipality and third 
 
 party 190 
 
 remedy over in favor of municipality .... 191 
 
 survives 191 
 
 costs in favor of municipality 191 
 
 same rules apply whether liability created by 
 statute or by common law 191 
 
INDEX. 527 
 
 HOESE, 
 
 negligence to leave, unhitched in street of city . . 125 
 (See Anxdiaji ; Driving ; Highway ; Livert-Stablb Ejeepbb.) 
 HUSBAND, 
 
 action by, for injury to wife 14 
 
 L 
 
 ICE AUD SNOW, 
 
 fsJling from roof . 100 
 
 in highway 181-183 
 
 (See Highway.) 
 « IDENTIFICATION,' 
 
 of driver with passenger, former English rule . . . 104 
 
 contrary rule in the United States 105 
 
 driver under control of passenger, latter may be 
 
 liable 106 
 
 (See Proximate Cause.) 
 
 IMPUTED ni:gligence, 
 
 fault of driver imputed to passenger, former English 
 
 rule 104 
 
 not accepted in the United States 105 
 
 unless driver under passenger's control . . . 106 
 
 negligence of parent imputed to child 107 
 
 contrary rule 108 
 
 negligence of parent will defeat his action for loss of 
 
 child's services 108 
 
 negligence of personal representatives of deceased 
 
 person 108 a 
 
 INCORPORATION. (See MmfidPALmr.) 
 INDICTMENT, 
 
 for negligent tilling 7, 24 
 
 penalty recovered under 25 
 
 incidents of civil action attach to proceedings under . 25 
 
 INFANT, 
 
 may be guilty of negligence 95 
 
 held affected by negligence of parent 107 
 
 contrary authority 108 
 
 injured by dog 148 
 
 contributory negligence of 14S 
 
 (5'eC COSTTKIBTTTORY NbGMGENCB ; TRESPASSER.) 
 
528 INDEX. 
 
 INFANT — continued. 
 
 trespassing, assumes risk of injury 76, 76, 78, and note 
 
 following 
 
 (/See OwMEB AND Occupant.) 
 
 assumes risks of employment wMch he undertakes . 204 
 
 as employee, master bound to instruct, when . . . 203 
 
 capacity of, to be taken into account .... 203 
 
 question of capacity for jury 202, 203 
 
 INSPECTION, 
 
 of appliances, duty of master as to 194, 195 
 
 of cars, by railway corporations 195 
 
 INSTRUCTION, 
 
 to employee, duty of master to give .... 202, 203 
 
 INTOXICATION, 
 
 bearing of, on question of contributory negligence . 146 
 
 INVITATION, 
 
 by owner of land or building, implied .... 66, 67, 70 
 
 to passenger to enter or leave train or station . . . 124 
 
 calling name of station equivalent to . . 124, note 
 
 traveller approaching crossing by 69, 162 
 
 (<See OwNEE and Occupant.) 
 
 J. 
 
 JOINDER, 
 
 of counts in tort and contract 5 
 
 JOINT AND SEVERAL LIAI3ILITY 31,32 
 
 tort-feasors co-operating liable in trespass .... 31 
 
 if not co-operating, not to be joined 31 
 
 all may be joined, or a number less than all . . . 32 
 
 corporation and servant may be joined 46 
 
 contribution between 191, note 
 
 Z. 
 
 KEEPER, 
 
 of animal, liable for injury done by it . . 125, 128, 148 
 {See Aniual.) 
 
INDEX. 529 
 
 L. 
 
 LAMENESS, 
 
 of plaintiff, bearing of, on question of contributory 
 
 negligence 146 
 
 LANDLOED AND TENANT. {See Owner and Occupant.) 
 LAW AND FACT, 
 
 questions of, on issue of negligence 93, 94 
 
 on issue of contributory negligence . . . 138, 139 
 
 on issue of capacity of infant 202, 203 
 
 {See BuKDEN of Proof : Presumption.) 
 LEASE, 
 
 of railroad, effect of, on liability 49 
 
 {See Owner and Occupant.) 
 LICENSEE, 
 
 of carrier, latter liable for negligence of 48 
 
 {See Carriers of Passengers.) 
 
 to enter on land, &c., rights of 79-81 
 
 {See Owner and Occupant.) 
 "LIFT." (>See Elevator.) 
 LIGHTS, 
 
 in liighway, duty of municipality in respect to . . 179 
 LIVERY-STABLE KEEPEE, 
 
 bound by implied warranty to farnish suitable animal 126 
 LORD'S DAY, 
 
 violation of statute prohibiting travelling on, effect 
 on question of contributory negligence . 141, and note 
 
 M. 
 
 MACHINERY, 
 
 duty of master as to furnishing 196 
 
 no common-law duty to provide guards for .... 196 
 
 safety of, not guaranteed 196 
 
 {See Master.) 
 defects in, what under Employers' Liability Acts . 232 
 
 MANSLAUGHTER, 
 
 physician grossly careless chargeable with .... 133 
 
 "MANUAL WORK," 
 
 defined, under Employers' Liability Act 228 
 
 34 
 
530 INDEX. 
 
 MARITIME LAW, 
 
 rights under, of sailor injured on board ship on the 
 
 high seas 218, note 
 
 MASTER, 
 
 right of action of, for injury to servant 11 
 
 subsists, although contract between servant and de- 
 fendant 11 
 
 liable for acts of servant done within scope of 
 
 authority 33, 34 
 
 authority inferred from fact of employment ... 35 
 
 may be liable, although servant act against orders . 36 
 
 but not if act was independent of the employment . 37 
 
 exception in case of carriers 38 
 
 (See Caerieks of Passengeks.) 
 
 not liable for acts of mere contractor 39, 40 
 
 unless doing of the work creates nuisance . . 43 
 
 employee may be at same time servant and contractor 41 
 
 question, in whose right the act is done 42 
 
 rule applied to corporations 44 
 
 to municipal corporations 66 
 
 permitting servant to keep animal, liable for result- 
 ing injury 128 
 
 Obligation of, towards his employees : 
 
 to provide safe and suitable places and appliances 192 
 duty implied from the contract of service . 192 
 rests also on general duty .... 3, 5, 66, 192 
 personal duty, not to be avoided by delegation . 193 
 unless appliance was originally safe, and 
 employee was charged with duty of keep- 
 ing it so 193 
 
 rule applied more strictly in the United States 
 
 than in England 193 
 
 no warranty of fitness of appliances .... 193, 196 
 
 not answerable for latent defects 194 
 
 duty to test appliances 194 
 
 rule applied to railroads 195 
 
 (See Kaileoad.) 
 
 as to machines 196 
 
 as to places in which to do work, general rule . 197 
 
 no warranty of fitness 197 
 
 Obligation of, towards his employees : 
 
 liable for inherent defects in buildings .... 197 
 
INDEX. 631 
 
 MASTER — conMnned. 
 
 to select competent and prudent servants and 
 
 agents 198 
 
 care to be proportioned to the danger of the 
 
 employment 198 
 
 duty not to be avoided by delegation . . . 198 
 direct personal supervision of employees 
 
 not required, semble 200 
 
 duty to provide sufficient number of servants . 200 
 responsible, although negligence of fellow-ser- 
 vant contribute to the injury 201 
 
 to instruct the employee 202 
 
 duty not avoided by delegating it 202 
 
 does not apply as to dangers which employee 
 
 has opportunity and capacity to detect . . 202, 203 
 exists, in certain cases, for protection of the 
 
 public 202 
 
 duty to infant employees, measure of ... . 203 
 questions of age, judgment, and capacity, for the 
 
 jury 203 
 
 liability of, for negligence of plaintiff's fellow- 
 servants 213-223 
 
 {See Employee; Employees' Liability Acts; Fellow- 
 Sebvant.) 
 MISFEASANCE, 
 
 of agents of municipal corporation, municipality may 
 
 be liable for, semble 57 
 
 MUNICIPALITY, 
 
 duty of, to keep highways in repair imposed by statute 7 
 {See HiGffWATS.) 
 
 not liable for acts of public officers 51 
 
 not liable to private action at common law for neg- 
 lect of public duty 53, 55, 167 
 
 grounds of the rule in the United States .... 53, 54 
 
 contrary authority 53, note 
 
 rule of respondeat superior not applied against ... 66 
 possible exception to rule in case of misfeasance 57 
 liable in actions arising out of its exercise of private 
 
 rights 58 
 
 as where it engages in enterprises for emolument . 58 
 liable in England for breach of duties prescribed by 
 condition or prescription 59 
 
532 INDEX. 
 
 MimiCIPALITY — continued. 
 
 Existing under special Charters : 
 
 semble, liability not created by incorporation 
 
 merely 60 
 
 contrary .rule held in certain jurisdictions 61-63 
 liable for highway accidents caused by negligence of 
 
 third party 190 
 
 third party or municipality may be sued 190 
 
 unless statute makes third party liable in first 
 
 instance 190 
 
 remedy over, in favor of, against third party . . . 191 
 
 action survives 191 
 
 costs in favor of 191 
 
 like rules whether liability created by statute or by 
 common law 191 
 
 K. 
 NEGLIGENCE, 
 
 the gist of the action for personal injuries .... 1 
 
 defined 91 
 
 no degrees of 92 
 
 what constitutes, a question of law 93 
 
 whether, when testimony conflicting, a question of 
 
 fact 93 
 
 conclusion not doubtful, question for the court . 93, 94 
 
 infant may be guilty of 95 
 
 nearest negligent act referred to 100 
 
 (See Proximate Cause.) 
 
 " comparative," doctrine of, disapproved 102 
 
 common law liability for, extended by statute 139, 225, 226 
 
 (See Employers' Liability Acts.) 
 
 of third person, contributing, not to defeat remedy . 103 
 
 rule qualified in England 104 
 
 qualification not admitted in the United States . 105 
 
 (See IDE^'^TIFICATION.) 
 different rule in actions for injuries from defects 
 
 in highways 1C9 
 
 of driver, imputed to passenger, English rule . . . 104 
 
 otherwise in the United States 105 
 
 unless passenger controls driver 106 
 
 of parent imputed to infant. (See Imputed Negligence.) 
 
JNDES. 533 
 
 NEGLIGENCE — corOintied. 
 
 of personal representative of deceased person . . . 108 a 
 Of Defendants genendly : 
 
 burden of proof to show on plaintiff Ill 
 
 rule changed by statute in certain States . . . Ill 
 generally, no presumption of, from occurrence of 
 
 accident : Exceptions Ill, 111 a 
 
 violation of statute by defendant, effect . . . 112 
 Of carriers of passengers : 
 
 measure of carrier's duty, generally 113 
 
 does not warrant safety 113 
 
 as to whom the duty subsists 114, 115 
 
 (See Passkngke.) 
 generally, cannot avoid liability by contract . . 116 
 
 rule otherwise in England, sewMe 116 
 
 persons carried gratuitously 117 
 
 Of railroads. (-See Eailkoads.) 
 
 Ofpersotis Jiaving control of Dangerous Articles: 
 
 intrusting these to others 129 
 
 concealed 130 
 
 sent by carriers 130 
 
 gas, electricity 131 
 
 combined with other substances 132 
 
 (See DAifGKBOus Substaucbs.) 
 
 Of physicians 98 
 
 {See Phtsiciaus.) 
 In the Custody ofAnimcUs. (See Animai.) 
 
 Of plaintiff 134-166 
 
 {See CoxTRiBTJTORV Xegligexce ; Due Cahe.) 
 
 Of fdloic-servant of plaintiff 213-225 
 
 (See Feliow-Sekvant.) 
 one fellow-servant responsible for, to another . . . 224 
 NOTICE, 
 
 of condition of premises affecting owner's liability to 
 
 licensee 81 
 
 trespasser having, takes the risk 72 
 
 to municipality of defect in highway 184^-186 
 
 written, forms of note following 186 
 
 {See HiGHWAT.) 
 to employer, under Employers' Liability Acts . . . 228 
 NUISANCE, 
 
 contractor creating, employer is liable ... . 42, 43 
 
534 INDEX. 
 
 NUISANCE — continued. 
 
 owner of land liable for, though not in possession . 89 
 
 in highway, what 187, 188 
 
 abutter creating or permitting, liable for . . . 187-189 
 
 excavation adjoining highway may constitute . . 3, 189 
 
 notice of, not necessary to charge municipality . . 184 
 
 not, of itself, a defect in a way 168 
 
 0. 
 
 OBSTRUCTION, 
 
 on land, liability of owner for 67 
 
 trespasser takes risk of 72 
 
 so licensee, when 79-81 
 
 of view of railroad crossing 163 
 
 ORDINANCE. {See Statute.) 
 OWNER AND OCCUPANT, 
 
 of land or buildings, liability generally 64 
 
 rules of law applied to determine liability .... 65 
 As to Persons entering hy Right : 
 
 liable for dangerous places or obstructions . . 67 
 
 as to vessels 68 
 
 as to railroad crossings 69 
 
 case of persons entering by invitation merely . "70 
 As to Trespassers or Intruders : 
 
 owner liable for wanton injury 71 
 
 trespasser, with notice, takes the risk .... 72 
 
 on the tracks of railways 73 
 
 liable for public nuisance 74 
 
 like rules as to infant or ignorant trespassers 75, 76 
 
 liable only for wanton injury 77 
 
 rule illustrated in railway cases .... 78 
 discussion of contrary authorities (note fol- 
 lowing) 78 
 
 As to Licensees : 
 
 not responsible for ordinary condition of premises 79 
 
 entering by invitation 80 
 
 whether notice essential to charge 81 
 
 Of Leased Property: 
 To the Tenant : 
 
 does not warrant condition of the premises . . 82 
 
 tenant, ordinarily, takes the risk 82 
 
INDEX. 535 
 
 OWNER AXD OCGXTPAHT — corainued. 
 
 so as to persons holding under tenant .... 83 
 
 liable for fraudulent concealment 84 
 
 or for condition of portion of premises of whicli 
 
 he retains control 85 
 
 or for negligence in making repairs 86 
 
 or for overt acts of negligence 87 
 
 or for violation of statute regulation, when . . 88 
 
 leasing infected premises, liable 98 
 
 As to third persoiis : 
 
 liable for nuisance permitted 89 
 
 according as he retains control 90 
 
 (See Baic£Oads.) 
 
 P. 
 PARENT, 
 
 action by, for injury to or loss of service, of child 12, 13 
 
 negligence of, will defeat 108 
 
 negligence of, imputed to child 107 
 
 contrary authority 108 
 
 (See Proximate Cause.) 
 contributory negligence of, what 149 
 
 (See CONTRIBTJTOET NkGIiIGENCE.) 
 
 PARTIES, 
 
 joint and several liability of 31, 32 
 
 corporation and servant as 46 
 
 contribution between 191, note 
 
 PASSENGER, 
 
 who is generally 114 
 
 when the relation begins 1 114 
 
 pre-payment of fare not necessary to constitute 114, note 
 
 person conveyed gratuitously may be 115 
 
 so, entering vehicle by invitation 115 
 
 vendor of newspapers, etc., on train is . . . 115, note 
 stipulation by, not to hold carrier liable, ineffectual . 116 
 
 by passenger carried gratuitously 117 
 
 ejected from vehicle, with violence, carrier liable . 34 
 carrier responsible to, for wrong committed by ser- 
 vant 38 
 
 formerly charged with negligence of his driver by 
 English rule 104 
 
536 INDEX. 
 
 PASSENGER.— continued. 
 
 contrary rule in the United States 105 
 
 (See Imputed Negligence.) 
 
 entering or leaving train or station by invitation 124, and 
 
 note 
 relieved from proof of due care by statute, in certain 
 
 cases 139 
 
 bound to anticipate ordinary risks 155 
 
 violating rules of carrier 156 
 
 evading fare 156 
 
 measure of care by, on railway trains 157 
 
 at railway stations 157 
 
 entering or leaving moving trains .... 124, 143, 158 
 
 in street cars 169 
 
 on vessels 160 
 
 PENALTIES, 
 
 actions for, created by statute 7, 22, 24, 25 
 
 for injuries caused by keeping ferocious dog . 128, note 
 
 PHYSICAL DEFECTS, 
 
 measure of care required from persons suffering from 146 
 
 PHYSICIAN", 
 
 liable for consequences of negligent treatment . 98, 133 
 bound to care and skill ordinarily exercised in pro- 
 fession 133 
 
 ignorant person acting as, responsible 133 
 
 rule of proximate cause applied to 133 
 
 criminally liable for gross carelessness 133 
 
 POISON. (See Dangekous Substance.) 
 
 PRESCKIPTION, 
 
 duties of municipalities dependent on, in England . 53 
 
 ways created by, municipal liability as to, attaches . 171 
 (See Highway.) 
 PRESUMPTION, 
 
 that person will take care of himself 96 
 
 that person will take care of himself to supply proof 
 
 of due care 134, 136, 137 
 
 contrary rule 135 
 
 none, that intoxicated person was negligent . . . 147 
 
 that highway is safe 164 
 
 ordinarily, none, of negligence from fact of occur- 
 rence of the accident Ill 
 
INDES. 537 
 
 PRESUMPTION — conHnued. 
 
 exception, res ipsa loqiiiiur Ill a 
 
 of safety of means and appliances 199 
 
 that persons of ordinary intelligence understand ordi- 
 nary dangers 204 
 
 {See BuEDKS of Proof.) 
 PROXIMATE CAUSE, 
 
 defined, generally 97 
 
 connection of cause and effect 98 
 
 rule illustrated in cases of runaway accidents . . 99, 170 
 
 nearest negligent act referred to 100 
 
 rule of, modified by statute 109 
 
 when questioft of law and when of fact 110 
 
 negligence of physician, considered as 133 
 
 travelling on. Lord's Day in violation of statute, as . 141 
 rule applied to determine master's liability for negli- 
 gence of fellow-servants 215 
 
 plaintiff's negligence not connected with the injury, 
 
 not 101 
 
 so, doctrine of "comparative negligence" disapproved 102 
 so, contributing negligence of third person not to 
 
 defeat remedy 103 
 
 former qualification of rule in England 104 
 
 not accepted in tlie United States 105 
 
 exception in statutory actions for injuries by defects 
 
 in highways 169 
 
 negligence of person under plaintiff's control, may be 106 
 
 {See Idkktificatiox.) 
 
 negligence of parent or guardian imputed to infant . 107 
 
 contrary rule 108 
 
 PUBLIC DUTY, 
 
 breach of, the foundation of the action . . . 3, 5, 6, 11 
 
 semble, different rule in England 11, iMte 
 
 municipality not liable for breach of, at common law 53 
 PUBLIC OFFICERS, 
 
 rule of respondeat superior not applied to . . . 51, 56 
 
 liable for acts not done within scope of authority . . 52 
 
 Q. 
 QUASI CORPORATION. {See Municipalitt.) 
 QUASI PENAL ACTIONS. (<Se« Pesaltiks.) 
 
538 INDEX. 
 
 E. 
 
 RACING, 
 
 on highway, is negligence 166, note 
 
 RAILINGS AND BARRIERS, 
 
 in highway, duty of municipality in respect to . . 178 
 
 RAILROAD CAR, 
 
 running loose 120, note, 123 
 
 standing at crossing 123 
 
 RAILROAD CROSSING, 
 
 obligation of railroad to persons using 69 
 
 {See OwNEE AST) Occupaitt.) 
 
 duty of railroad on train approaching 120 
 
 private 120, note, 123 
 
 of two railroads at grade 120, note 
 
 view of obstructed 123 
 
 care required of traveller at 161-163 
 
 {See CoNTEiBUTOBT Negligence.) 
 
 RAILROAD TRAIN, 
 
 speed of 122 
 
 behind time 123 
 
 special, run out of time and without warning . . . 123 
 RAILROADS, 
 
 connecting, respective liabilities of, for accidents . 47 
 
 in receivership, liability of 4Aa 
 
 consolidation of, as affecting liability 49 
 
 lease of, effect on liability 49 
 
 duty of, to public generally 119 a 
 
 {See Carrieks of Passengers.) 
 
 liability of, to trespasser 73, 120, 122 
 
 to infant trespasser 78, and note following 
 
 As carriers of passengers : 
 
 measure of liability generally 118 
 
 {See Carrier op Passengers.) 
 bound only to use reasonable precautions . . . 118 
 
 as to construction and equipment 119 
 
 as to crossings 120 
 
 private crossings 120, note 
 
 of different railroads at grade . . . 120, note 
 at stations and the approaches thereto . . . 121 
 
INDEX. 639 
 
 EAILEOADS — continued. 
 
 as to the speed of trains 112, 122 
 
 statute regulations of, effect . . . 112, 122 
 
 existence of statute, evidence merely . . 122 
 
 negligence generally a question of fact . . 122 
 
 obligation to give warnings or signals . . 112, 123 
 
 obstructing view of crossing 123 
 
 invitation to passenger, effect of 124 
 
 Duty of, to employees, as to appliances : 
 
 not bound to furnish absolutely best appliances . 195 
 duty as to road-bed; frogs and switches; trestles ; 
 
 bridges; culverts ; coupling-pins 195 
 
 as to cars 195 
 
 duty to inspect 195 
 
 applies to cars of connecting railroads . . 195 
 contributory negligence of employee of, what 150, 151 
 employees of, assume ordinary risks of injuries 
 
 attending employment 205 
 
 employees of, when fellow-servants 216, 218, 219, 222, 
 
 223 
 conductor, whether fellow-servant of train-men 
 
 218-223 
 
 liability of, extended by statute 225 
 
 (See Fkilow-Servant.) 
 EECEIVEESHIP, 
 
 liability of, for negligence 44 a 
 
 EEMEDT, 
 
 in tort 1 
 
 concurrently, in contract 5 
 
 in trespass 1, 4, 31 
 
 in trespass on the case 1, 4, 17, 31 
 
 by criminal indictment T, 25 
 
 against physician for negligence . . . 133, and note 
 
 REMEDY OVER, 
 
 in favor of municipality in actions for injuries on 
 
 highway 191 
 
 principle on which the rule rests . . . .191, and note 
 
 RES IPSA LOQUITUR, 
 
 maxim, application of Ill a 
 
 RESPONDEAT SUPERIOR, 
 
 maxim 33, 51, 66, 217, 221 
 
5-iO INDEX. 
 
 EULE, 
 
 violation of, by employee, effect on the question of 
 
 contributory negligence 153, 154 
 
 as to unreasonable rule 154 
 
 of carrier, violation of, by passenger, effect .... 156 
 
 EUNAWAY ACCIDENTS, 
 
 rule of proximate cause applied to 99, 170 
 
 S. 
 SAILOE, 
 
 rights of, as against ship by maritime law . . 218, note 
 SCIENTEE. (See Ajjimai,.) 
 SEEVANT, 
 
 action for injuries to 10, 11 
 
 acts of, for which master is responsible . . . 36, et seq. 
 {See Emplotee ; Employees' Eisk ; Employees' Liability ; 
 
 Master.) 
 SEEVICES, 
 
 actions for loss of, of servant 10, 11 
 
 of child 12, 13, 108 
 
 of wife 14 
 
 loss of, occasioned by death, no action for at common 
 
 law 15 
 
 contrary authority 16 
 
 of infant, action for, defeated by negligence of parent, 
 
 plaintiff 108 
 
 (See Imputed Negligence.) 
 SEX, 
 
 of plaintiff, bearing on question of contributory 
 negligence 142 
 
 SIC UTEEE TITO UT ALIENUM NON LAEDAS, 
 
 maxim Z, 130 
 
 SIDEWALK, 
 
 safety of, assumed 164 
 
 (See Abttttee; Highway.) 
 SIGNALS AND WAENINGS, 
 
 right of employee to rely on 152 
 
 right of traveller to rely on, at crossing 162 
 
 gates 162 
 
INDEX. 641 
 
 SIGX-BOASDS, 
 
 in highway, responsibility of municipality for . . . 180 
 SLEEPmG-CAR COMPANIES, 
 
 liable for torts of their servants 47 
 
 SOCIETY, 
 
 of wife, loss of, element of damage 14 
 
 STATION, 
 
 duty of railroad maintaining 121 
 
 duty of passenger entering or leaving . . . 124, note, 157 
 (See Contributory Negligence ; Passenger ; Bailroad.) 
 STATUTE, 
 
 duties imposed by, on municipalities in respect of 
 
 highways 7, 168 
 
 (See Highway; Municipamty.) 
 on master for negligence of employee's fellow- 
 servant 7, 225-234 
 
 Employers' Liability Acts, English 227 
 
 of Alabama .... 227 
 of Georgia . . 225, note 
 of Iowa . . . 225, note 
 of Kansas . . 225, note 
 of Massachusetts . . 227 
 of Minnesota . . . 225 
 of Rhode Island 225, note 
 of "Wyoming . 225, note 
 Employers and "Workmen Act, 38 & 39 Vict. . . 227 
 {See Employers' Liability Acts.) 
 
 providing for survival of actions ~> 1" 
 
 action for death 21 
 
 9 & 10 Vict e. 93 22 
 
 in the United States 22, jiote 
 
 imposing penalties on carriers of passengers ... 24 
 
 limiting carrier's liability 50 
 
 limiting rule of proximate cause 109 
 
 regulating speed of railway trains, effect of . . . . 122 
 requiring railroads to give warnings or signals, effect 
 
 of 123 
 
 enlarging common-law liability as to dogs . 126, 128, note 
 removing necessity of proof of due care by plaintiff . 139 
 violation of, generally, as tending to show negligence 112 
 as showing contributory negligence 141 
 
542 INDEX. 
 
 STATUTE — continued. 
 
 prohibiting travelling on Lord's Day . . . 141, and note 
 
 as to passenger evading payment of fare . . . 166 
 
 creating municipal liability, strictly construed . . . 168 
 
 extending common-law liability for negligence 139, 225, 226 
 
 {See Employers' LiABiuir Acts.) 
 
 SLEEPING-CAES, 
 
 liability for accidents occurring in 47 
 
 SMAiiL-POX, 
 
 landlord leasing premises infected with, liable . . 98 
 
 STEAMBOAT. (See Caebiebs; Vessel.) 
 
 STREET CARS, 
 
 measure of cai*e of passenger on 159 
 
 STREET RAILWAYS, 
 
 care in crossing 161 a 
 
 SUB-CONTRACTOR. (See Conteactoe.) 
 
 SUNDAY. (See Loed's Day.) 
 
 SUPERINTENDENCE, 
 
 who are persons exercising, under Employers' Lia- 
 bility Acts 233 
 
 SURVIVAL, 
 
 after injury, necessary to establish right of action . 19 
 
 SURVIVAL OF ACTIONS, 
 
 provided for by statute 7, 17 
 
 no action unless party survives the injury ... 18, 19 
 
 rule of damages 20 
 
 surviving action concurrent with action for death . 21 
 over by municipality against third party for injuries 
 on highways 191 
 
 SWITCHES, 
 
 duty of railroad respecting, as to employees . . 195, 208 
 "flying" 121,wote,134 
 
 T. 
 TENANT, 
 
 liability of landlord to, for condition of premises 82-88, 98 
 (See OwNEE and Occupant.) 
 TORT, 
 
 action of, for injuries ■- 1 
 
 rests on breach of public duty 3, 5, 6 
 
INDEX. 543 
 
 TORT — continued. 
 
 form of the action 4 
 
 concurrent remedy in contract 5 
 
 action of, created by statute 7 
 
 survival of, provided for by statute . . . . 7, 17 
 
 for loss of service 8, 9, 10, 11, 12, 13, 14 
 
 injury to servant 10, 11 
 
 injury to child 12, 13 
 
 injury to wife 14 
 
 TORT-FEASORS, 
 
 joint and several liability of 31, 32 
 
 contribution between ^ 191, note 
 
 TOWN. (See MTmKHPAUTT.) 
 TRAVELLER, 
 
 on highway, who is 173 
 
 violating statute against travelling on Lord's Day 
 
 ■*. ■ 141, and Twte 
 
 at raUroad crossings 161-163 
 
 has right to assume safety of highway and sidewalk 164 
 knowledge of defect in highway not conclusive 
 
 against right of, to maintain action 165 
 
 duty of, to look out for other travellers .... 166 
 (See Dkivek ; Highway.) 
 TRESPASS, 
 
 action of 1, 4, 31 
 
 TRESPASS ON THE CASE, 
 
 action of 1, 4, 17, 31 
 
 TRESPASSER, 
 
 joint, jointly and severally liable 31 
 
 so, although a contract between the parties . . 32 
 on premises of another, assumes ordinary risks . . 71 
 
 owner liable to, for wanton injury 71 
 
 having notice of special danger, takes the risk . . 72 
 except when owner creates a public nuisance . 74 
 (See OwuEE and Occupaitt.) 
 
 on railway tracks 73 
 
 raUroad not bound to anticipate presence of, on 
 
 track 122 
 
 but knowing it, bound to exercise care . . . 120 
 like rules applied, although an infant . 75, 76, 78, and 
 
 NOTE following 
 injured by ferocious animal, may maintain action . 127 
 
544 INDEX. 
 
 u. 
 
 USEE, 
 
 municipal liability attaches as to ways established by 171 
 (See Highways.) 
 
 V. 
 VEHICLE, 
 
 driver of, not identified with passenger . . . 104, 105 
 
 unless passenger controls driver 106 
 
 bicycle is 166 
 
 VENUE, 
 
 of statutory action for death 26 
 
 in the United States 27 
 
 as between different States ....... 28 
 
 foreign actions, where maintained 29 
 
 rule in the Supreme Court of the United States 30 
 VESSEL, 
 
 liability of owner as to persons entering .... 68 
 
 (See OwNEE AND Occupant.) 
 measure of care required from passenger on . . . 160 
 persons employed on, when fellow-servants . . . 218 
 (See Eellow-Seevant.) 
 VICE-PEINCIPAL. ■ (See Eellow-Seevant.) 
 VILLAGE, 
 
 incorporated. (See Municipality.) 
 VOLENTI NON FIT INJUEIA, 
 
 maxim, application to doctrine of Employees' Risk 210, 211 
 VOLUNTEER, 
 
 employee as, assumes risk of injury .... 210-215 
 
 W. 
 
 WARNINGS AND SIGNALS, 
 
 duty of railroad to give 123 
 
 failure to give, not negligence per se 112, 123 
 
 gates at crossing 123 
 
 failure to close, negligence 123 
 
 special, necessary if train be late 123 
 
INDEX. 545 
 
 WAB.BJLSTY, 
 
 there being breach of, action may sound in contract 5, 126 
 
 none, of safety of passengers 113 
 
 nor that appliances for doing work are absolutely safe 194 
 that such appliances shall be reasonably safe and fit, 
 sem^le 193 
 
 WATERWORKS, 
 
 in highway, duty of municipality in respect to . . 179 
 
 WAY. (See Highway,) 
 
 WIFE, 
 
 action for injuries to 14 
 

 
 Date Due 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Library Bursa 
 
 1 Cat. No. 1137 
 
 
 ■'tl. 
 
KF 1257 EQS IRQQ 
 
 Author Vol. 
 
 Buswellj Henry Foster 
 
 "^he civil liability for persona^P" 
 injuries arising out of negligence, 
 
 Date 
 
 Borrower's Name 
 
m^ 
 
 'I. 
 
 ^«il%:.