(Snntpll ICatu i^rijaol library Cornell University Library KF 1250-K55 v.1 Commentaries on the law of torts; a philo '3'l924"019"3i0 436 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019310436 COMMENTARIES ON THE LAW OF TORTS PHILOSOPHIC DISCUSSION OF THE GENERAL PRINCIPLES UNDERLYING CIVIL WRONGS EX DELICTO BY EDGAR B. KINKEAD OF THE C0LTJMB«fc?2El0) BAB Professor of Law, Ohio State University, Author of "Kinkead's Code Pleading," "Court Practice," "Probate Law," etc. VOLUME ONE SAN FRANCISCO BANCROFT-WHITNEY COMPANY Law Publishers and Law booksellebs 1903 Copyright, 1903 BY EDGAR B. KINKBAD. San Francisco: The Filmer Brothers Electrotype Company, Typographers and Stereotypers PREFACE. A preface seems to be an essential part of a book, but in some respects it places the writer at a disad- vantage, rendering it necessary, as it does, to write of himself and his work, either in the first or third person. Some explanation in this manner, however, is always expected. These volumes are presented to the legal profession as a Commentary on the Law of Torts. The desig- nation of the work as a "Commentary" would seem justifiable from the course of discussion pursued, in the main, throughout the book, although conscious of popular criticism for the misuse of such title, and of the responsibility incurred by its adoption. The true province of legal authorship is to discover what, the law is and set it down; and in so doing the writer must not be wedded absolutely to judicial precedent. From the very nature of things, there can be but one rule of law governing any question, and if in our investigations conflict of decision is en- countered, it is reasonable to suppose that one line of authority is right, and the other wrong. We en- tered upon this work with the determination that nothing would be left undone on our part that might enable us to correctly ascertain and set forth the rules of law in respect to the questions presented in the compass of our subject. We have had constantly before us certain tests by which the law can safely be determined, and have measured all judicial prece- dents by these tests. The more confusion or con- flict of authority which has been found, the more jus- (iii) iv PREFACE. tifiable a new work, scientifically constructed, on this subject seemed. The tests which have been applied in our investi- gations were in substance the following: History, common law, morality, changed conditions, common sense, reason and logic. If errors have been made, as no doubt there have been, they have occurred in the exercise of our best judgment. Members of the legal profession, absorbed as they constantly are in the complexity of legal details, for- get at times what a great science the law is, and how important is their mission. No calling has more to do with shaping the destinies of the people than that of the law, and to enable individual members to do their part they should become devoted stu- dents. Morality, or the science of human duty in all relations of men, lies at the foundation of all true legal education, the true interpretation of law de- pending entirely upon the proper application of moral principles; every question must be studied from this standpoint. If the mind of every member of the pro- ifession were thoroughly imbued with this principle, he would become a better lawyer, the profession would stand in its true light and would never be subject to the calumny of men. It has always been conceded that the perfection of human reason is to be found in the common law, the basic principle of which is morality. If common-law doctrines and statutory rules cannot pass this test, then they are not sound. In our investigations we have followed these precepts, and have traced the his- tory of legal doctrines according to the variations thereof to suit the times and conditions, and have sifted the reasonings of judicial precedents, deducing from them leading principles to guide and control legal investigation. PREFACE. v In writing upon a subject of such extent and magni- tude as this, the general principles only have received attention, the various applications to circumstances and conditions as shown by the numerous adjudica- tions have not been pursued to great extent. We found plenty to do in covering the general principles and pursuing the great outlines of the subject. As lawyers become better educated in their profession, the more they learn to depend upon a knowledge of general principles and less upon cases, the more they will appreciate and prefer a scientific treatise to a case digested text-book. We would not leave the impression that every part of this work comes up to the standard which we have set before us, as there are places where nothing more can be done than to collect rules and doctrines. Attention is directed to one feature of the man- ner of treatment. Upon questions of unusual im- portance, especially where conflict of authority seems to prevail, what appears to be the true doctrine is carefully worked out and discussed in the text, while the position of each state in respect thereto is shown by sufficient excerpts from the cases in the particular state in the notes, the states appearing in alphabet- ical order. The design or purpose is that the reader may be able to determine what the law is by reading text or note, without in many instances consulting the cases. That the reader may not be compelled to rely alone upon the statement of the author, sufficient ex- tracts from the authorities are furnished to show that the text is sound. Another objection frequently urged against certain styles of book-making is that the texts so frequently contain such meager statements of rules and doctrines extracted from the cases, with bare citation of au- thority, that the reader is unable to ascertain, from vl PREFACE. a mere reading of the text, what the law really is, and what the reasons and logic for the doctrines are, with- out consulting the cases. Such texts serve no further purpose than digests. We have endeavored to obviate this objection by stating what the law is in its different phases, with the reasonings thereof. The scholarly English writer, Sir Frederick Pollock, in his Classic on Torts, recognizes the lack of apprecia- tion of torts as "a true, living branch of common law, not a collection of heterogeneous instances," his work being the most scientific of any extant upon the sub- ject. The subject of Torts is a distinct and separate topic of the law. Notwithstanding this fact, the effort to treat it as an entirety is beset with difficulties. Plan after plan was designed by the writer, only to be cast aside until finally the one upon which the work is con- structed was adopted, which it is believed presents the subject in a natural and logical order. As the basis of all legal contention is legal rights, as all wrongs, whether ex delicto or ex contractu, are violations of primary rights., it follows as a logical sequence that the foundation of all rational and sound legal discussion must be primary rights, and viola- tions thereof. Though the violations of primary rights which constitute torts embrace a great variety of wrongs, which, without a keen, analytical percep- tion, might present "a collection of heterogeneous in- stances," or appear to be "merely a number of rules of law about various kinds of torts," a still a proper classification of these rights, and a consideration of violations thereof in accord therewith, will enable one to journey through the domain of torts with the satisfaction that it is entitled to a disinct place in the category of subjects. 3 bollock on Torts, Introduction. PREFACE. vii The plan of this work will be briefly explained. We commence with the General Nature of Torts, in which are found a few general principles common to many torts, such as a definition, its relation to con- tract, to crimes, privity, etc. Classification of Rights Violated is the important starting point, it being sufficient for present purposes to state that they con- sist of personal rights, or those rights the object of which affect® or relates to the person, and property right®, or those rights the object of which is property, real or personal. Next must be considered, separately from the spe- cific wrongs that go to make up the great body of wrongs, the Liability of Persons. The rules govern- ing this matter are peculiar to the person or relation- ship, which embraces Status, Joint Action, Relation to Actor, Contribution, Corporations, Public — Private, Public Utilities, Official Persons, and so on. Then follows all specific wrongs, The Right of Personal Se- curity by Force and Without Force. Part Five treats of the Specific Wrongs to Relative Rights, Common- law and Statutory. Part Six considers Specific Wrongs to Real and Peronal Property With Force, while Part Seven takes up Wrongs to Property Rights Without Force. Thus it may be seen that the Wrongs cluster about the Rights, and we can see at a glance the whole body of wrongs. In the treatment of many of the subjects, though common and familiar, some hitherto shadowy places have been cleared up, and some new features in old subjects have been developed. The discussions have not been limited to what may have been found in the decided cases, but wherever it seemed necessary, other questions have been anticipated and treated. As already stated, the volumes are designed to be discussions of general principles, the reasonings, viii PREFACE. history and logic of the law — something which law- yers and judges may turn to and use with safety in the solution of problems. Double citations have been made to the American Decisions, American Reports, American State Re- ports, and to the Reporter System, which adds great value to a text-book. Frequent references are made to the many valuable notes found in the American Decisions and American State Reports, which are often more extensive and replete with citation of authority than is possible in a text-book. The writer is glad of an opportunity to speak of the high char- acter of the legal discussions found in the Annota- tions to this series of reports, and to express his ap- preciation of the courtesies extended by the publish- ers of those reports and of these volumes. In closing the arduous labors of this work, and be- fore letting it go from our hands, it is with pleasure that grateful acknowledgment is made of the valued assistance of my young friend and former student, Harry L. Doud, L. L. B., of the Columbus (Ohio) Bar, who has been a constant companion in thought and deed during the greater portion of the time occu- pied by this work. It will always be a source of pleasure to look back over the days of our combined labor, and to remember how it shaped and developed a bright legal mind of a devoted friend. EDGAR B. KINKEAD. Columbus, Ohio, April 1, 1903. OUTLINE OF CONTENTS. VOLUME ONE. Part Chap. I. INTRODUCTORY. 1. General Nature of Torts 1 2. Classification of Rights and Duties Violated by Torts. 2 II. LIABILITY OF PERSONS. 1. As Affected by Status 3 2. As Affected by Concert of Action 4 3. As Affected by Relation to Actor 5 4. Contribution Between Wrongdoers 6 5. Liability of Corporations 7 a. Private. b. Public 6. As Affected by Duty to Public 8 a. Common Carrier. b. Telegraph Companies. c. Telephone Companies. d. Innkeepers. 7. Asi Affected by Relation to Injured. a. Confidential, Trust and Quasi Trust Relation... 9 b. Contractual Relation 10 i. Attorney and Client ii. Master and Servant 8. Liability of Persons in Official Relations. a. General Principles of Official Liability 11 b. Legislative, Federal and State Officials 12 c. County and Township Officers 13 d. Court Officials 14 e. Judicial Officers 15 (ix) x OUTLINE OF CONTENTS.— VOLUME ONE Part Chap. III. SPECIFIC WRONGS— TO ABSOLUTE RIGHTS— BY FORCE. 1. Right of Personal Security 16 a. Assault and Battery. 2. Eight of Personal Liberty 17 a. False Imprisonment b. Restraint of Persons for Peace, Security and Health of the Community. c. Malicious Abuse of Process. IV. SPECIFIC WRONGS)— TO ABSOLUTE RIGHTS— WITH- OUT FORCE. 1. Right of Personal Security. a. Without Right. i. By Animals IS ii. By Spring Guns. b. Through Negligence. 1. General Principles 19 ii. In Use of Dangerous Agencies 20 iii. While Traveling in Roads and Streets... 21 iv. By Excavation, Obstruction or Obstacle. 22 v. By Unsafe Condition of Structures 23 vi. Of Common Carrier of Passenger 24 vii. Of Physicians, Surgeons and Apothe- caries . 25 2. Right of Reputation. a. By Slander 26 b. By Libel. c. By Malicious Prosecution 27 3. Right to Health or Comfort 23 a. By Nuisance. OUTLINE OF CONTENTS. VOLUME TWO. Part - J Chap, y. SPECIFIC WRONGS— TO RELATIVE RIGHTS. 1. Common^law Rights in Domestic Relations 29 2. Statutory Rights in Domestic Relations. a. By Death by Wrongful Act 30 b. By Sales of Intoxicating Liquors 31 3. Common-law Rights in Trade Relations 32 a. By Conspiracies Against Trade. 4. Constitutional Relative Rights 33 a. Against Searches and Seizures. b. To Education. c. To Religious Worship. d. Of Suffrage. VI. SPECIFIC WRONGS— TO PROPERTY RIGHTS— BY FORCE. 1. Rights in Real Property. a. Of Exclusion 34 1. By Trespass. b. Of Possession 35 i. By Forcible Entry and Detainer. C. Of Use 36 L By Waste. 2. Rights in Personal Property 37 a. Of Possession. i. By Trespass, (xi) xii OUTLINE OF CONTENTS.— VOLUME TWO. Part Chap. VII. SPECIFIC WRONGS— TO PROPERTY RIGHTS— WITHOUT FORCE. 1. Rights in Tangible Personal Property. a. By Conversion 38 b. By Confusion. c. By Negligence. d. By Common Carriers of Goods 39 2. Rights in Intangible Personal Property 40 a. Patents. b. Copyrights. c. Trademarks. 3. Rights in Real Property. a. To Enjoyment 41 i. By Nuisance. b. To Incorporeal Hereditaments — Easements. .. .42 c. To Property 43 i. By Negligent Fires. yill. FRAUD— WRONG TO RIGHTS IN GENERAL. L Actual Fraud 44 2. Constructive Fraud. TABLE OF CONTENTS. PART ONE. INTRODUCTORY. CHAPTER I. GENERAL NATURE OF TORTS. 3 1. Something of the divisions or titles of the law. § 2. Torts as a separate subject § 3. General scope of the subject § 4. Tort defined. § 5. Same continued— Relation to contract. § 6. Privity in tort. 5 7. Is privity ever present in tort? § 8. Torts and crimes. § 9. Civil remedy not suspended. § 10. Tort, how committed. CHAPTEE II. CLASSIFICATION OF RIGHTS AND DUTIES VIOLATED BY TORTS. § 11. Of legal rights. § 12. Classification or division of rights. § 13. Absolute and relative rights further particularly considered. § 14. Right of personal security. § 15. Right of personal liberty. § 16. Right to life. § 17. Liberty of conscience — Religious liberty. § 18. Right of property. § 19. Right of suffrage. | 20. Rights in personam and in rem- ain) TABLE OF CONTENTS. PAET TWO. LIABILITY OF PERSONS. CHAPTER III. LIABILITY OF PERSONS AS AFFECTED BY STATUS. § 21. Normal tort-feasor. § 22. Infants— Principles governing their liability. § 23. Same continued— Capacity to commit torts involving malice. § 24. Liability of infant for tort arising out of or connected with contracts— General doctrine stated. I 25. Same continued— Contracts of bailment— Conversion or un- skillful management. § 26. Same continued— Liability for conversion not connected with bailment. § 27. Infant's liability for fraud. § 28. Infant estopped from denying liability. § 29. Infant's liability for money stolen or embezzled. § 30. Infant's liability for tort committed under command or duress. § 31. Infant's liability for torts> of agents. § 32. Contracts of infant in settlement of torts. § 33. Liability of lunatics— General principles governing. § 34. Same continued— Wrongs not of intent. § 35. Same continued— Wrongs of intent. § 36. Same continued — Liability for negligence. § 37. Liability of married woman for torts— Introductory. § 38. Same continued— The common law. § 39. Same continued— Liability under modern statutes. CHAPTER IV. LIABILITY OF PERSONS ACTING IN CONCERT- JOINT TORTS. § 40. Joint tort-feasors— Term defined. § 41. Joint torts, how committed. § 42. Same continued— Joint wrongs, distinguished from concur- rent independent acts. TABLE OF CONTENTS. xv § 43. Principles underlying joint liability. § 44. Acts joint or several, explained and distinguished. § 45. Same continued — Conspiracy. § 46. Same continued— When acts separate and without common intent. § 47. Ratification or adoption— General principles. § 48. Same continued— Illustrative cases. § 49. Joint liability when independent contract is made. § 50. Joint liability for injury from falling party-wall. § 51. Liability of joint owners of animals. § 52. Same continued— Owners of dogs. § 53. Joint liability for maintenance of nuisance. § 54. Joint liability in slander and libel. § 55. Joint liability in malicious prosecution. § 56. Liability of municipalities or counties jointly maintaining bridge. § 57. Action for joint tort may be brought how. § 58. Same continued— 'Separate action against each — Rules and incidents. § 59. Same — The common law. § 60. Common-law rule further considered— Fundamental princi- ples. | 61. Same subject continued— The American rule. § 62. Same continued— Effect of issuing execution. § 63. Release of one joint tort-feasor— Partial satisfaction. § 64. Judgment and execution in action against all joint tort- feasors. CHAPTER V. JOINT LIABILITY OF PBESONS AS AFFECTED BY EELATION TO ACTOB. § 65. What is meant by relationship. § 66. Classification of wrongs involved in this chapter. § 67. Doctrines of agency controlling. | 68. Principle of joint liability of principal and agent § 69. Same— Their joint liability depends upon whether the acts are within scope of employment — Doctrine discussed and illustrated. § 70. Scope of employment continued— Illustrative cases. § 71. Same continued— Acts within authority of servant— Illustra- tive cases. § 72. Same continued— Acts not within scope of employment. § 73. Joint liability where conduct of agent or servant is malicious or willful. § 74. Same continued— Questions, how decided. s ™ TABLE OF CONTENTS. § 75. Same continued— Kind of damages that may be assessed. § 76. Husband and wife^Joint liability. § 77. Parent and child— Joint liability. § 78. Partnership — Liability for torts. § 79. Partners— Joint liability. § 80. Joint liability of attorney and client. § 81. Joint liability of officer and deputy— Principles of substantive liability. § 82. Same continued— Is there a joint liability? § 83. When the agent follows an independent employment. CHAPTER VI. CONTEIBUTION BETWEEN WEONGDOEES. 84. Contribution— Doctrine explained. 85. Contribution applied to torts. 86. Contribution bet-ween tort-feasors— General doctrine. 87. Same— Illustrations of application of rule to intentional acts. 88. Contribution when parties presumed to know act is unlawful. 89. Contribution when parties not conscious of wrongdoing. 90. Contribution when wrong due to negligence. 91. Contribution — Indemnity — Distinguished. 92. Same continued — Where different duties are allotted to differ- ent parties. 93. Contribution where one is responsible for acts of another. 94. Contribution when offense malum proMbitum. 95. Contribution between parties suing out civil process. CHAPTER VII. LIABILITY OE PUBLIC AND PEIVATE COEPOEA- TIONS. § 96. The state. § 97. Counties, townships , and school districts— The common-law liability. § 98. Municipal corporations— Act in dual capacity— Liability for torts— General principles. § 99. Same continued— When duty governmental — Legislative, judicial or discretionary duty. § 100. Same — Governmental duties — Cases of nonliability. § 101. Same continued— Care of public buildings. § 102. Rule respondeat superior applied to municipalities. § 103. Duty of municipality as to streets. § 104. Same continued— Drains and sewers. TABLE OF CONTENTS. xvii § 105. Private corporations — Responsibility for torts. § 106. Same continued — Acts through its servants. § 107. Same continued— Liability for torts involving malice or in- tent. § 108. Banking corporations. § 109. Banks — Duties and liabilities in making collections. § 110. Hospitals— Liability for torts. CHAPTER VIII. LIABILITY OP PERSONS AS AFFECTED BY DUTY TO PUBLIC — COMMON CAERIERS — TELEGRAPH- TELEPHONE— INNKEEPERS. . Explanatory. § 111. Who is a common carrier. § 112. Common carriers of goods— Liability, in general. § 113. Telegraph companies— Their legal status. § 114. Telegraph companies, further considered— Care exacted of them. § 115. Same — May make rules and regulations. § 116. Action by sender of messages. § 117. Action by receiver of message. § 118. Instances of actionable negligence. § 119. Telephone companies— Their legal status. § 120. Innkeeper defined. § 121. Duty as to receiving guests. § 122. When one becomes a guest— Continuance of relation. § 123. Duties and liabilities of innkeepers. CHAPTER IX. LIABILITY OF PERSONS AS AFFECTED BY RELA- TION TO INJURED— CONFIDENTIAL, TRUST, AND QUASI TRUST RELATION. § 124. Expression "confidential relation" explained. § 125. Husband and wife. § 126. Attorney and client — Wrongs arising from the confidential relation. § 127. Trustee and cestui que trust § 128. Trustee and cestui que trust continued— Liability for negli- gence. xviii TABLE OF CONTENTS. § 129. Guardian and ward— Fraud and negligence. § 130. Personal liability of corporate officers to third persons. § 131. Liability of directors of corporations other than banks — Re- lation of directors to corporation and stockholders. § 132. Same continued— For what acts directors personally liable. § 133. Scope and extent of duty of directors. § 134. Relation of bank directors to those interested. § 135. Amount of care required of bank directors. § 136. Bank directors, when liable. § 137. Who may enforce the personal liability. CHAPTER X. LIABILITY OF PERSONS AS AFFECTED BY CON- TEACTUAL RELATION" TO INJURED— ATTOR- NEYS— MASTER AND SERVANT. § 138. Explanatory. § 139. Liability of attorneys. § 140. Who is a servant — Volunteer. § 141. Of the master's liability to servant— Introductory statement. § 142. Contractual relations in general. § 143. General duty of master to servant. § 144. Duty of master with regard to premises and appliances. § 145. Same— Duty continuous— Discovery and remedy of defects. § 146. Duty of master to communicate defects and dangers to servant. § 147. Duty of master in selection of employees. § 148. Master's duty in prescribing and enforcing rules. § 149. Assumption of risks. § 150. Negligence of fellow-servant— Superior servant rule dis- cussed. § 150a. Superior servant rule continued. CHAPTER XI. LIABILITY OF PERSONS IN OFFICIAL RELATIONS- GENERAL PRINCIPLES OF OFFICIAL LIABILITY. ,\ 5 151. Kinds of offices. § 152. Nature of public office. § 153. Who is an officer. § 154. The test of official liability. § 155. Basic principles of official liability involving also the lia- bility of sureties. TABLE OF CONTENTS. xix 156. The remedy for official neglect. 157. Ministerial and judicial acts distinguished. 158. Where one transaction has in it an admixture of judicial power or discretion and ministerial function. 159. Ministerial officers classified. 160. Ministerial officers— Liability for official neglect— General doctrine. CHAPTER XII. LIABILITY OP PERSONS IN OFFICIAL RELATIONS- LEGISLATIVE, FEDERAL AND STATE OFFICIALS. § 161. Legislative department. § 162. Federal officials. § 163. Official neglect of postoffice officials. § 164. State officials— Executive. § 165. State officials — Continued. § 166. Notaries public are public officers. § 167. Duties of notaries— Care to be exercised. § 168. Notaries' liability for defective acknowledgment of deed. § 169. Liability of notary in protesting paper. CHAPTER XIII. LIABILITY OF PERSONS IN OFFICIAL RELATIONS- COUNTY AND TOWNSHIP OFFICERS. § 170. County officials— General statement. § 171. County commissioners — No personal liability. § 172. County treasurer. § 173. Recorder or register of deeds— Design of office. § 174. Recorder or register of deeds — Liability in tort. § 174a. Recorder continued— Liability for failure to register instru- ment, or for erroneous reteord. § 174b. Same subject further considered— Effect of improperly in- dexed record, or of no index, upon rights of subsequent purchasers 1 — Its bearing on liability of recorder in tort § 174c. Subject continued— Authorities conflicting on question whether party filing instrument with recorder must see that valid registration is made— True rule as to effect of mistake of record or of no index in view of all au- thorities, stated. xx TABLE OF CONTENTS. § 175. Recorder continued — Certificate of search. § 176. General duties of sheriffs 'and constables. § 177. Duty when officer has knowledge dehors the writ. § 178. Liability of officer for excess of, or Improper service of, process. § 179. Must the sheriff follow instructions of plaintiff in serving writ? § 180. Clerks of courts. § 181. Township officers. OHAPTEE XIV. LIABILITY OF PEBSONS IN OFFICIAL EELATIONS- COUET OFFICIALS. § 182. Receivers — Liability for torts. § 183. Liability of executors and administrators. CHAPTER XV. LIABILITY OF JUDICIAL OFFICEES. § 184. Judicial liability for official neglect— The undisputed doc- trine of judicial immunity. § 185. The reason for the rule of judicial immunity. § 186. The disputed doctrine of immunity as to courts of inferior or limited jurisdiction. § 187. Same continued— Reason of rule of liability of magistrates — The doctrine being questioned. § 188. Same continued — Distinction between want and excess of jurisdiction further particularly considered. § 189. Same continued— When court acts without or in excess of jurisdiction — The authorities classified. TABLE OF CONTENTS. xxi PART THREE. SPECIFIC WKONGS (WITH FOECE). ABSOLUTE EIGHTS OP PEESONS. A. PERSONAL SECURITY. § 190. Explanatory. CHAPTER XVI. INJURY TO CONSTITUTIONAL EIGHT OP PEE- SONAL SECUEITY, LIFE, LIMB AND BODY BY ASSAULT AND BATTERY. § 191. Of the right of personal security. | 192. Scope of this chapter. § 193. Civil remedy not merged. § 194. Assault and battery as the subject of a civil action. i 195. Assault defined. $ 196. Battery defined. § 197. Action, civil and criminal — Distinguished. § 198. Intent and malice. § 199. Contributory negligence. § 200. Acts constituting assault— Illustrations. § 201. Same continued— Pointing unloaded gun. § 202. By officer. § 203. Assault by owner in recapture of personal property. § 204. Assault in gaining possession of land. § 205. Correction of pupil by teacher. § 206. Proffer of sexual intercourse. § 207. Self-defense. § 208. Same— Further as to justification. § 209. Defense of member of family. § 210. Defense of property. § 211. Action for injury in mutual combat TABLE OF CONTENTS. CHAPTER XVII. INJURY TO CONSTITUTIONAL EIGHT OF PEE- SONAL LIBEETY. I. BY FALSE IMPRISONMENT. II. RESTRAINT OF PERSONS FOR THE PEACE, SECURITY OR HEALTH OF THE COMMUNITY. III. MALICIOUS ABUSE OF PROCESS. I. FALSE IMPRISONMENT. § 212. False imprisonment— Defined. § 213. Nature of the detention— Place. § 214. Nature of the detention— Manual restraint not necessary. § 215. The arrest. § 216. By whom restraint imposed or arrest made. § 217. Same continued — Arrest by private person. § 218. When others than arresting officer liable. § 219. Liability of private citizen who aids officer. § 220. Agent procuring unlawful arrest— Liability of principal. § 221. Attorney's liability for false imprisonment. § 222. What makes an imprisonment unlawful. § 223. Arrest must be upon probable cause. § 224. Arrest under warrant. § 225. Duty as to obtaining warrant when arrest made without— Detention for unreasonable time. § 226. Joint liability of arresting officers, jailers, etc. § 227. Distinction between false imprisonment and malicious prose- cution. § 228. Judicial officers— Their liability. § 229. Measure of damages. II. RESTRAINT OF PERSONS FOR PEACE AND SECURITY OF HEALTH OF THE COMMUNITY. § 230. Wrongful confinement in asylum or hospital. § 231. Restraint of persons with contagious disease. § 232. Confinement of inebriates. III. MALICIOUS ABUSE OF PROCESS. § 233. Malicious abuse of process— Nature of wrong. § 234. Same continued — Illustrative cases. § 235. Same continued— Who liable. TABLE OF CONTENTS. xxiii PAET FOUR. SPECIFIC WJRONGS (WITHOUT FORCE). A. PERSONAL SECURITY. 1. WITHOUT BIGHT. CHAPTER XVIII. INJURY TO CONSTITUTIONAL EIGHT OP PEE- SONAL SECURITY. WITHOUT RIGHT. 1. By Animals. 2. By Spring-guns. § 236. Injury to person by animals— Classes of animals. § 237. Injury to person by animals ferae naturae. § 238. Injury to person by domestic animals— Owner or keeper, when liable — General rule. § 239. Use of animals to protect property— Domestic animals of vicious character. § 240. Automatic guns— Injuries from. CHAPTEE XIX. INJURY TO CONSTITUTIONAL EIGHT OF PEESONAL SECURITY BY NEGLIGENCE— GENERAL PEIN- CIPLES. § 241. This chapter. § 242. Negligence defined. § 243. Legal duty, basis for negligence. § 244. Legal duty— To whom owed— Not indiscriminate. § 245. Degrees of negligence. § 246. Willful and wanton negligence. § 246a. Same continued— The prevailing rule restated. xxiv TABLE OF CONTENTS. § 247. Kind of care required to avoid negligence. § 248. Ordinary care defined— When exacted. § 249. Standard of duty, how fixed. § 250. Contributory negligence— General doctrine. § 251. Comparative negligence. § 252. Proximate cause. § 253. Imputed negligence. § 254. Negligence of children. § 255. Violation of statute or ordinance. § 256. Questions of negligence, how decided. § 257. Negligence causing fright— Mental suffering, whether ac- tionable. CHAPTEE XX. INJUEY TO EIGHT OF PEESONAL SECURITY BY NEGLIGENCE IN USE OP DANGEEOUS AGEN- CIES. § 258. Blasting — Of the right to engage in work of. § 259. Blasting continued— Liability for injuries from. § 260. Blasting— Doctrines of contributory negligence applicable. § 261. Electricity-^-Care required in use of. § 262. Explosives— Negligence in use and storage of. § 263. Same— Gas and dangerous fluids. § 264. Same continued — Contributory negligence of injured. § 265. Firearms— Use of. § 266. Fireworks— Negligent use of. § 267. Same continued— Contributory negligence. CHAPTEE XXI. INJURY TO EIGHT OF PEESONAL SECURITY, BY NEGLIGENCE— WHILE TEAVELING IN EOADS AND STEEETS. I 268. This chapter. § 269. The law of the road. § 270. Relative rights of footmen and vehicles. § 271. Collisions between vehicles passing in same direction. § 272. Fast driving — Injuries from. § 273. Injury from runaway horse. § 274. Leaving horse unhitched in street. TABLE OF CONTENTS. xxv § 275. Defective harness. § 276. Ambulances — Care required in use of. S 277. Fire department — Personal injuries from. § 278. Automobiles— Their use in streets and roads. § 279. Bicycles— Their legal status. § 280. Relative rights of bicycle traveler and others. § 281. Personal injury in use of bicycle. § 282. Street railways — Injuries caused to travelers by. § 283. Street railways— Injuries to travelers from nonrepair of streets. § 284. Street railways continued— Running down travelers. § 285. Street railways continued— Rate of speed. § 286. Street railways continued— Violation of ordinance. § 287. Same — Alighting passenger passing in front of car going in opposite direction. § 288. Street railways— Relative rights of travelers at crossings. § 289. Same continued— Care required of railway at street cross- ings. § 290. Street railways continued— Negligence of the company must be the proximate cause. § 291. Street railway companies— Contributory negligence. § 292. ' Right of travelers to use tracks. § 293. Steam railway crossings— Relative rights of travelers and railway. § 294. Same continued— Specially of the duty of traveler on ap- proaching crossing. § 295. Same continued— Duty of railway company at crossings. § 296. Same continued — When railway does not give signal. § 297. Same continued — Duties and liabilities of company with respect to "gates" and "flagmen." § 298. Same continued— Flying-switches on public highway. § 299. Same continued— The cases. CHAPTER XXII. INJURY TO PERSONAL SECURITY WHILE TRAVEL- ING IN ROADS AND STREETS BY EXCAVATION, OBSTRUCTION OR OBSTACLE. § 300. Negligence and nuisance distinguished— With reference to wrongs of excavation, obstruction, etc. § 301. Highways and streets— Their purposes— Injury to use of — Regulation of use. § 302. Same— Control over highways and streets— Liability of county or municipality. xxvi TABDE OF CONTENTS. § 303. Liability of municipalities further specially considered. % 304. Subject further considered— Notice of defects. § 305. Liability of municipality when it makes independent con- tract to do some work in streets. § 306. Excavations in streets. § 307. Excavations — Nature of the legal duty and wrong. § 308. Same continued— Excavations in and other uses of streets without authority. § 309. Delays from crowded condition of streets. § 310. Incidental uses of streets— Temporary obstructions in con- struction of buildings. § 311. Authority for excavations, when given. § 312. Excavations or obstructions made by individuals for pri- vate purposes, under a license. § 313. Liability of municipality for ice on the sidewalk. CHAPTEE XXIII. INJUEY TO PEESON BY UNSAFE CONDITION OF LAND AND STEUCTUEES AND DANGEEOUS MACHINEEY. § 314. Dangerous premises, and dangerous things erected or ex- isting thereon — Classes of liability. § 315. Nature of wrong and injury considered in this chapter. § 316. General duty of owner of premises as to their safety. § 317. Duty to those coming upon premises by invitation. § 318. Same continued— Extent of the rule of coming upon premises by invitation. § 319. Same continued— Duty to guest.' § 320. By invitation— Adjudged cases. § 321. Duty to licensee. § 322. Licensees— Adjudged cases. § 323. Trespassers— Duty to. § 324. Dangerous premises, machinery, etc., attractive to children — The rule of law. § 325. Same continued— The age of the children— Contributory negli- gence. § 326. Dangerous premises, machinery, and other things attractive to children — Continued— The rule applied to what things. § 327. Same continued — Other dangerous things and places. § 328. Other cases of nonliability. § 329. Ordinance requiring excavations to be filled or fenced— Effect upon liability. TABLE OF CONTENTS. xxvii § 330. Injury from falling walls. § 331. Liability of city for injury to children. § 332. Dangerous machinery operated in the usual course of busi- ness. CHAPTER XXIV. INJUEY TO EIGHT OP PEESONAL SECUEITY— NEG- LIGENCE, BY COMMON CAEEIEES OP PASSEN- GEES. I. RAILWAY COMPANIES. § 333. Common carrier defined. § 334. Carriers of passengers — Their duty as to the care they shall use. § 335. Same continued— The measure of care variously expressed. § 336. When one becomes a passenger. § 337. When carrier assumes duty toward passenger. § 338. Receiving passengers. § 339. Same continued — Duty of carrier when passenger boards car. § 340. Duty of railway as to station grounds, approaches and facilities for boarding cars. § 341. Construction and care of tracks. § 342. Duties of carrier in general as to construction of cars, en- gines and machinery. § 343. Same continued— When the fault is that of an independent contractor. § 344. Duties and liabilities in the operation of vehicles and ma- chinery. § 345. Liability of carrier to free passenger. § 346. The ticket— Its legal aspect. § 347. Same continued— Effect of conditions on ticket. § 348. Collisions— Derailments— Presumption of negligence from. § 349. Collisions through neglect of different carriers. § 350. Discharging passengers. § 351. Respective liabilities of lessor and lessee railroad com- panies, or of roads crossing each other. II. SLEEPING-CAR COMPANIES. § 352. Sleeping-car company — Its legal status. § 353. Same— Servants of sleeping-car company are servants of carrying company. § 354. Same— Duty toward passengers. § 355. Same— Duty to awaken passengers. xxviii TABLE OF CONTENTS. III. STREET RAILWAYS. 356. Street railways as common carriers. : 357. Degree of care exacted of street railways toward their pas- sengers. 358. Duty as to track and equipment. IV. BOATS AND SHIPS. 359. Boats and ships— Duties and liabilities. V. ELEVATORS. 360. Elevators are common carriers. 361. Same— Care required of persons operating elevators. 362. Same continued— Special instances of liability. 363. Same continued— Person injured must be prudent. 364. Falling into elevator shaft. CHAPTER XXV. INJURY TO PERSONAL SECURITY— BY NEGLECT OP PHYSICIANS, SURGEONS, AND APOTHECARIES. § 365. Nature of the right violated. § 366. Relation between physician and patient. § 367. Acceptance of employment. § 368. General rule of duty required of physician. § 369. Care required of specialists. § 370. When services gratuitous— Care not varied. § 371. Violations of duty considered — Surgical operations. § 372. Violations of duty— Other instances. § 373. Liability of physician for neglect of another sent in his stead. § 374. Established modes of practice must be followed. § 375. Consent of patient to operation. § 376. Same — Who must consent. § 377. Physician or surgeon of hospital not its agent. § 378. Contributory negligence of patient— Effect. § 379. Pharmacists— Duties and liabilities. § 380. Same continued — Wholesaler and retailer— Their liability. § 381. Same continued— Contributory negligence. TABLE OF CONTENTS. CHAPTER XXVI. INJURY TO CONSTITUTIONAL EIGHT OF REPUTA- TION—BY SLANDER AND LIBEL. § 382. Slander and libel, defined and explained. § 383. Defamation defined. § 384. There must be publication. § 385. Same — What constitutes publication. § 386. Manner and form of publication. § 387. Publication continued— Defamatory matter must be under- stood and heard by third person. § 388. Liability of persons republishing or repeating. § 389. Reputation and character distinguished. § 390. Defamatory matter must be false to give rise to a civil action— Truth as a defense. § 391. Same— Proof of truth. § 392. Injurious representations!— Classes — Per se— Per quod. § 393. What wordsi are actionable per se. § 394. Subject further considered § 395. Same continued — Imputing contagious disease. § 396. Words actionable per se— Spoken of one in his occupation. § 397. Words actionable per quod— Special damages. § 398. Particularity of allegation and proof when special damage must be shown. § 399. Words defamatory per se in libel. § 400. Excuses— Privileges — Absolute and qualified— Classification- General doctrine. § 401. Absolute— Qualified privilege distinguished. § 402. Privileged through duty to public— Legislature. § 403. Same— Judicial bodies. § 404. Same— Executive communications. § 405. Same — By the public— To public officials. § 406. Same— Quasi public— Churches, lodges, etc. § 407. Privileged cases— Private— To self^Defending attack. § 408. Privileged cases — To persons having interest in subject mat- ter — Confidential or business affair. § 409. Freedom of press— Newspaper privilege— Specially of re- ports. § 410. Privileged cases in libel— Newspaper comment upon acts of public officials. | 411. Same— Comments upon qualifications of candidates for of- fice. § 412. Malice as an element of slander and libeL xxx TABLE OF CONTENTS. CHAPTER XXVII. INJURY TO CONSTITUTIONAL EIGHT OF REPUTA- TION CONTINUED— BY MALICIOUS PROSECU- TION. § 413. Introductory. § 414. Nature of right and injury— Does It embrace both criminal and civil action. § 415. Same continued— Decisions conflicting— The right of action upon principle stated. § 416. Same continued— Conflict of decision further considered- Cases sustaining action where there is an arrest or seiz- ure of property. § 417. Same continued— Summary of comments upon confusion of authority and of principles of the right of action. § 418. Same continued— Subject considered with special reference to auxiliary processes. § 419. Malicious prosecution — Defined and explained and distin- guished from kindred wrongs. § 420. Termination of suit. § 421. Probable cause— Defined— Practical application. § 422. Same continued— Charging the jury. § 423. Same continued— Dependent upon guilt or belief. § 424. Advice of counsel, magistrates and others— Effect. § 425. Acting upon information received from others. § 426. Conviction as evidence of probable cause. § 427. Acquittal as evidence of probable cause. § 428. Malice as an element of the wrong. § 429. Malice defined. § 430. Maliop continued— How shown— Practical deductions. § 431. Malice continued— Province of court and jury in respect thereto. § 432. Measure of damages. CHAPTER XXVIII. INJURY TO COMMON-LAW RIGHT TO HEALTH OR COMPORT— BY NUISANCE. § 433. Nuisance— Its position in law. § 434. Nuisance— Defined and explained. § 435. Injury to health— Blackstone. § 436. Personal discomfort. § 437. Same continued— Some things held not to be nuisance. § 438. Legislation to prevent. § 439. Other questions. LAW OF TORTS. PART ONE. INTRODUCTORY. CHAPTER I. GENEEAL NATTJEE OF TOETS., § 1. Something of the divisions or titles of the law. § 2. Torts as a separate subject f 3. General scope of the subject. § 4. Tort defined. § 5. Same continued— Relation to contract § 6. Privity in tort. § 7. Is privity ever present in tort? § 8. Torts and crimes. I 9. Civil remedy not suspended. § 10. Tort, how committed. § 1. Something of the Divisions or Titles of the Law; An author might as well endeavor to cause water to flow uphill as to attempt to alter or change the fun- damental titles or divisions of law. They are as natural as the branches, of scientific knowledge, and find their source in the nature of humanity as scien- tific branches arise from the nature of the physical world. Both are fixed by nature and ascertained by experience and reason. The law cannot be de- termined in any given case unless each principle is drawn from the appropriate division or subject of law, Torts, Vol. I— l § 2 GENERAL NATURE OP TORTS. 2 and applied to cases belonging to or falling within the same or kindred subject So, when we are gathering these various principles for the purpose of applying them to a case in hand we must know where to draw them from. A law book cannot be constructed upon any other than a scientific and logical basis. One of our most able American lawyers once said that changes have been constantly taking place in other sciences, medicine, religion, etc., but that the law has passed through the centuries with its general princi- ples unchanged. § 2. Torts as a Separate Subject.— it will serve a useful purpose at the beginning to make a general survey of the law of torts, taking a general outlook of the extent and magnitude of the subject. No subject can be well understood without taking a general, com- prehensive view, following out its general principles and great outlines. Torts, or wrongs ex delicto, is a most comprehensive subject, embracing as it does all breaches of duty, outside and beyond the domain of contracts. In formulating the plans and specifica- tions for this work, we have gone back to first princi- ples, and have studied the third volume of Blackstone more assiduously than ever. The extent and magni- tude of the wrongs outside of contracts, and the vari- ous ways in which they may be committed, and the importance of so many of the subtitles of the general subject, and their treatment as separate titles of the law by text-writers, no doubt has tended to confuse the mind when looking at the subject of torts as an en- tirety. The classification of rights, duties and obli- gations of parties, other than contractual, as set forth by Blackstone, and which have found their way into the fundamental or constitutional law of this coun- try, forms the basis of the discussion or treatment of the subject. We have read with considerable inter- 3 GENERAL NATURE OP TORTS. § 2 est what some of the learned authors have written about this subject as a separate title, and, of course, by way of justification for the treatment of it in a sep- arate treatise. An exhaustive consideration of all the titles coming under the head of this subject in one work would run into many volumes, and a book can- not be written upon the subject without making a proper classification and keeping within the pale of general principles. And then the general principles are the most effective tools which lawyers have occa- sion to use. Some reference has been made to torts as not even a subject, but as a collection of discon- nected subjects. Pollock speaks of it as a subject alto- gether modern, a complete theory of which, however, is yet to be sought for. Bishop solves the difficulty of assigning the subject of torts to a proper place in the law by designating it as noncontract law, and when he does that he says that the obscurity vanishes. That name is equally as objectionable as the definition that a tort is a wrong independent of contract is generally regarded to be. We might as appropriately desig- nate the law of contracts, as "Nontort law." The learned writer, the late Mr. Bishop, further states that: "The division of our law into various subjects, and of each subject into its particular titles and sub- titles, is matter simply of convenience to writer and reader; it constitutes no part of the law." This seems to the writer to be clearly wrong, as no one can bring the law upon any subject in a text in any other way than in its natural order. Tort is comprehensive in name, covering numerous acts, variously committed, many of which have been considered as of sufficient importance to justify sepa- rate treatises. The subject occupies the greater por- tion of the time of our courts, which justifies author and publishers in presenting these volumes to the pro- fession, which are designed to be a thoroughly concise i 3 GENERAL NATURE OF TORTS. 4 treatment of the general principles underlying the subject, as enunciated by the older leading and mod- ern cases. An experience in dealing with the subject for some years in class work brings us in thorough ac- cord with the thought expressed by Mr. Pollock in his Introduction to his Torts: "The purpose of this book is to show that there really is a Law of Torts, not merely a number of rules about various kinds of torts — that this is a true living branch of the common law, not a collection of heterogeneous instances." § 3. General Scope of the Subject.— Torts, embrac- ing, as the subject does, all breaches of duty and obligation other than contractual, covers a large field; in name it is one-half of the law; in reality, it is perhaps much more from a practical standpoint. Con- siderable attention has been given a definition of the word by courts and writers. The reason why there has been so much said about this is perhaps due to the comprehensive character of the subject. It has seemed to be difficult to frame a definition sufficiently broad to embrace every wrong within its domain; or, rather, there are so many ways of committing torts that it seems difficult to frame a general definition ap- plicable to all cases. Wrongs other than violations of contractual duty are so varied in character; some are characterized by one kind of an act, and some by another. It is either of misfeasance, wrongfully do- ing something which one has a right to do, or nonfeas- ance, failing to do something which ought to be done. Wrongs are either (1) intentional or (2) not intention- al. Sir Frederick Pollock says that: "Our first diffi- culty in dealing with the law of torts is lo fix the con- tents and boundaries of the subject. If we are asked, What are torts? nothing seems easier than to an- swer by giving examples But we shall have no 5 GENERAL NATURE OF TORTS. § 4 easy task if we are required to answer the question, What is a tort? In other words, what principle or ele- ment is common to all classes of cases, .... and also distinguishes them as a whole from other classes of facts giving rise to legal duties and liabilities?" It certainly is not difficult to describe all rights and duties other than contractual, and those comprehend torts. These rights relate to either person, personal or real property and reputation. "Rights of person" is perhaps not expressive of personal rights, which, add- ed to the above, describes the domain of torts so far as concerns what may be injured. § 4. Tort Defined. — Courts and writers have in- dulged in what seems a useless discussion of what constitutes an accurate definition of a tort. It does not seem difficult to give a definition sufficiently com- prehensive to embrace all kinds of torts. To say that it is a wrong independent of contract does not express anything. A tort may be caused by an act of omis- sion or of commission. The former includes all wrongs arising from want of care, while the latter covers all intentional acts. The injury is either direct or indi- rect, and is to person, property or reputation. There- fore, the following would seem to be a correct defini- tion: The omission or the commission of an act by one without right, in no wise connected with contract, whereby another receives some injury directly or in- directly, in person, family, or contractual relation, property or reputation. 1 Says an English author: "No one has yet succeeded in formulating a perfectly satisfactory definition of a tort; indeed, it may be doubted whether a scientific l See upon question of definition, Cooley on Torts, 66; 1 Hilliard on Torts, sec. 1; Rich v. New York Cent R. R. Co., 87 N. Y. 382; Bishop's Noncontract Law, sec. 4. § 5 GENERAL NATURE OF TORTS. 6 definition, which would at the same time convey any notion to the mind .... is possible." 3 Mr. Bigelow defines tort as a breach of duty fixed by law, and re- dressible by a suit for damages; 3 but adopting the language of another writer, "this definition does not seem to convey much information to the reader, and confessedly requires an elaborate explanatory disser- tation. 4 Of course all torts are private or civil wrongs, but one may be committed by an act of com- mission, and another by an act of omission. There must be some act of commission or omission, unau- thorized by law, not being a breach of some duty un- dertaken by contract, and must cause injury, special, private, and peculiar to the plaintiff, as distinguished from an injury to the public at large. Again, an act of commission may be willful or intentional, or it may be carelessly and negligently or fraudulently committed. An act which has been willfully commit- ted may amount to negligence, and the act which has been intentionally committed may be either negli- gence or fraud. The acts without right or unauthor- ized by law which constitute torts can hardly be fur- ther characterized in a definition. "Torts are infinitely various, for there is not any- thing in nature that may not be converted into an in- strument of mischief." 5 § 5. Same Continued— Relation to Contract. — There are possibly cases where it is difficult to distinguish between contract and tort; this will occur, particular- ly in determining the responsibility of infants for torts, and in some other cases. Upon this the follow- ing apt quotation is made: "We have been unable to 2 Underhill on Torts, 5. 8 Bigelow's Elements of Torts, § 62. 4 Underhill on Torts, 6. s Chapman v. Pickersgill, 2 Wils. 146. 7 GENERAL NATURE OF TORTS. § 5 find any accurate and perfect definition of a tort. Be- tween actions plainly ex contractu and those clearly ex delicto, there exists what has been termed a 'border land,' where the lines of distinction are shadowy and obscure, and the tort and the contract so approach each other, and become so nearly coincident as to make their practical separation somewhat difficult; Moak's Underhill on Torts, 23. The text-writers either avoid a definition entirely (Addison on Torts), or frame one plainly imperfect (2 Bouvier's Law Dic- tionary, 600), or depend upon one which they concede to be inaccurate, but hold insufficient for judicial pur- poses: Cooley on Torts, 3, note 1; Moak's Underhill on Torts, 4; 1 Milliard on Torts, 1. By these last authors a tort is described as 'a wrong independent of con- tract.' And yet, it is conceded that a tort may grow out of, or make part of, or be coincident with, a con- tract, and that precisely the same state of facts be- tween the same parties may admit of an action either ex contractu or ex delicto: Cooley on Torts, 90. In such cases, the tort is dependent upon, while at the same time independent of, the contract; for, if the latter imposes a legal duty upon a person, the neglect of that duty may constitute a tort founded upon con- tract." 6 The relation which tort and contract sustain to each other, especially under the reformed procedure, is often quite an interesting field of discussion. In many instances, a transaction may arise between par- ties primarily through contract, but it may give rise to a right of action in tort or in contract. It is not difficult to separate the tort from the contract, the wrongful acts being so clearly distinguishable, being of a wholly different character. The tortious act, as a misrepresentation or concealment in sales of prop- 6 Rich v. New York Cent. R. R. Co., 87 N. 5T. 382. I 5 GENERAL NATURE OF TORTS. 8 « erty, may precede the contract, and hence may in a measure enter into, or be an inducement therefor, and yet the tort stands out as a distinct, independent act, giving rise to a right of action ex delicto. And when parties are brought into a relation of privity by means of contract, and while sustaining that relation one commits a tort, he surely departs from the contract. In contract there is a relation of privity, while in tort there is none, a right of action for the tort being allowed in some cases where there can be said to be no relation of privity. As, for instance, the sale of poison by a druggist negligently for a harmless medi- cine, to one person to be administered to another, the latter in person or by representative having the right of action. 7 The transactions giving rise to this double liability are sales of property accom- panied by fraud, losis of property by common car- riers, bailments, and the like. The advantages to be derived in pursuing the one remedy or the other are in the responsibility of the parties where there are several concerned in the wrongful act. Of the wrongdoers in the transaction, the one who commits the breach of contract may be solvent, while the one who commits the tort may not be, or vice versa, and hence the injured party may bring suit against either party. 8 And again, the stat- ute of limitation may have run against the tort, but not against the right of action in contract. The same facts substantially will show the viola- tion of the contractual obligation or the duty giving rise to the action in tort. As between the immedi- ate parties where no question of the statute of limi- tation is involved, the relative importance of the 7 Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298. 8 Brundred v. Rice, 49 Ohio St. 640, 34 Am. St. Rep. 589, 32 N. E. 169. 9 GENERAL NATURE OF TORTS. § 6 right of action in tort or in contract is of little con- sequence, under the reformed procedure, excepting perhaps upon the question of damages. The rule as to arriving at compensatory damages is different in actions on contract from the rule in cases of tort. On contract the party can recover only for those conse- quences which the one violating the contract may reasonably anticipate. In tort, the wrongdoer is liable for all direct and proximate results of the wrongful act. When several persons have committed a joint in- tentional wrong, there can be no contribution be- tween them, while if the action is in contract, this right of contribution between them exists. Again, there may be a personal disability to contract, but a liability, in tort, as in the case of infants and luna- tics. 9 § 6. Privity in Tort. — Privity means a connection between parties, a mutual or successive relation be- tween parties. Ordinarily, the term is used in con- nection with the law of contract, not in tort. One who commits a malicious or tortious act is generally liable therefor to the injured party without refer- ence to the question of privity between himself and such party. While it is ordinarily understood that there is no such thing as privity in tort, yet the par- ties, the wrongdoer and the injured party, must be brought into such a relation as that a duty is owing from one to another. But even in tort there must be some limitation. Some restriction with respect to the duty and upon the right to sue for want of care in the exercise of employments or the transaction of business is plainly necessary to restrain the remedy from being pushed to an impracticable extreme. 9 See sees. 24, 33, post § 7. GENERAL NATURE OF TORTS. 10 There would be no bounds to actions if this were not so. It is not everyone who suffers a loss from the negligence of another that can maintain an action on account thereof. The one occasioning the loss must owe a duty, arising from contract or otherwise, to the person sustaining such loss. 10 The rule is said to be universal that where there is neither fraud nor a malicious or tortious act, that for an injury arising from mere negligence, however gross, there must exist between the party inflicting the injury and the one injured some privity, by contract or otherwise, by reason of whieh the former owes some legal duty to the latter. 11 Instances of the application of this rule are where a recorder of deeds makes a certificate from the records for a particular person; others have no right to rely upon it, and if a mistake is made no action accrues against the officer. 12 And so no one but the person to whom a false representation is made has a right to rely thereon, and hence no other person can sustain an action for an injury therefrom. 13 The obligation of an attorney is to his client, and third persons cannot complain of his negligence. 14 § 7. Is Privity Ever Present in Tort?— Generally speaking, there is no such thing as privity in tort, yet 10 Kahl v. Love, 37 N. J. L. 5; Woolwine v. Chesapeake etc. Ry. Co., 36 W. Va. 329, 32 Am. St. Rep. 859, and note, 15 S. E. 81; Williams v. Chicago etc. R. R. Co., 135 111. 491; 25 Am. St. Rep. 397, 26 N. E. 661; Peabody Bldg. Assn. v. Houseman, 89 Pa. St. 261, 33 Am. Rep. 760; Baltimore etc. Ry. v. Cox, 66 Ohio St. 276. li Buckley v. Gray, 110 Cal. 339, 52 Am. St. Rep. 88, 42 Pac. 900; Roddy v. Missouri Pac. Ry. Co., 104 Mo. 234, 24 Am. St. Rep. 333, 15 S. W. 1112; Savings Bank v. Ward, 100 U. S. 195. 12 See sec. 175, post. 13 Wells v. Cook, 16 Ohio St. 67. 14 Buckley v. Gray, supra; Peabody Bldg. Assn. v. Houseman, 89 Pa. St. 261, 33 Am. Rep. 760. 11 GENERAL NATURE OF TORTS. § 7 it has been said: "For an injury, however gross, there can be no recovery unless there exists between the person inflicting the injury and the one injured some privity, by contract or otherwise, by reason of which the former owes some legal duty to the latter." 15 And in those cases where the injured party has a right of election between tort and contract, there is of necessity a relation of privity in either case, and only the one who is a party to the contract can main- tain any action on account of the wrong arising there- from. 16 There is no doubt but that a cause of action in tort often arises from a breach of duty created by contract, in which case there must be some privity of contract between the injured person and the one causing the damage. If there is no privity of con- tract, there can be no action maintained for the tort. 17 But there are many instances where a third party not connected with the contract is never- theless injured by a breach thereof, which, as to him, is a tort. In many cases the law imposes duties ad- ditional to those specified in the contract, and some- times independent of it. 18 An example of the rule that there should be some -relation of privity may be instanced by a certificate made by an examiner of titles, or by a recorder of deeds as to the state of title to realty. An examiner is Buckley v. Gray, 110 Cal. 339, 52 Am. St. Rep. 88, 42 Pac. 900. 16 Tollit v. Shenstone, 5 Mees. & W. 289; Winterbottom v. Wright, 10 Mees. & W. 109. 17 Roddy v. Missouri P. R. Co., 104 Mo. 234, 24 Am. St. Rep. 333, 15 S. W. 1112; Curtain v. Somerset, 140 Pa. St. 70, 23 Am. St. Rep. 220, 21 Atl. 244; Heizer v. Kingsland etc. Mfg. Co., 110 Mo. 605, 33 Am. St. Rep. 482, 19 S. W. 630; Loop v. Litchfield, 42 N. Y. 351, 1 Am. Rep. 543; Necker v. Harvey, 49 Mich. 517, 14 N. W. 503. 18 Heizer v. Kingsland etc. Mfg. Co., 110 Mo. 605, 33 Am. St Rep. 482, 19 S. W. 630. § 8 GENERAL NATURE OP TORTS. 12 of titles only contracts with the one who employs him to use care and diligence in making certificate as to title, and is liable for want thereof only to such per- son. Because of want of privity of contract he can- not be held liable to a third person, even though he has knowledge that the abstract is to be used to ef- fect a sale or loan. 19 And so a recorder of deeds, when he makes an official certificate as to title, is liable only to the person procuring it for any neglect in connection therewith, and not to a third person who may rely upon it. 20 Further discussion of this topic at this point is deemed unnecessary, as it comes up again in connec- tion with special subjects. While privity may not be the appropriate technical term to be used in tort, because it pertains to the law of contract, there must be a legal duty owing by the person committing the wrong to the one injured before there can be a right of action in tort. This duty can only arise from some relationship. This is discussed later. 581 § 8. Torts and Crimes. — There are many wrongs that constitute both a public and private wrong, though the relative importance of the two wrongs is not of so much consequence. There are doctrines peculiar' to the private wrong not present in the public wrong. So far as the question as to what violations give rise to a wrong, it takes in most all instances the same facts to show the private wrong as do to show the public wrong. In case of com- plaint by an individual of a public nuisance, he must show special damage to him different from that suf- fered by the general public. 22 And so in the case of 19 Zweigardt v. Birdseye, 57 Mo. App. 462. 20 Houseman v. Girard Bldg. Assn., 81 Pa. St. 256. 21 See c. 243, sec. 244, "Negligence." 22 Knowles v. Pennsylvania R. R. Co., 175 Pa. St. 623, 52 Am. St. Rep. 860. 13 GENERAL NATURE OF TORTS. {§ 9, 10 a monopoly the individual must show some special wrongful act directed toward him. 23 It is not necessary, in this country, that the crimi- nal prosecution should have been commenced and terminated, and a judgment or sentence in that pro- ceeding is of no consequence in the civil proceeding. § 9. Civil Remedy not Suspended.— The earlier Eng- lish doctrine that the civil remedy was merged in the higher offense against society and public justice, or suspended until the termination of the criminal prosecution, never obtained a foothold in this coun- try, but, on the contrary, it became a part of our fundamental law that every person, for an injury done him in his person, reputation, or immunities, shall have remedy by due course of law, promptly and without delay. The old rule was repudiated for reasons of public policy, as there would be a strong incentive to stifle the prosecution and com- pound the felony, if the injured party was compelled to wait the determination of the criminal prosecu- tion. 24 § 10. Tort, How Committed.— In the first place, we must remember that a tort is the breach of a duty. We are now to inquire into the manner in which the breaches of those duties, which constitute tort, are consummated, and to indicate the means by which one's rights may be violated, so as to give rise to an action ex delicto. First of all, we may say that these wrongs must be violated by an act or failure to act. Mere intent alone cannot constitute a legal wrong. Although, as we shall see, intent is an essential element in 23 Sec. 503, post. 24 Nowlan v. Griffin, 68 Me. 235, 28 Am. Rep. 45, note, and cases; Howk v. Minnick, 19 Ohio St. 462, 2 Am. Rep. 413; Boston etc. Corp. v. Dana, 1 Gray, 83. § 10 GENERAL NATURE OF TORTS. 14 many torts, yet there must be an act of omission or commission, as the result of the intent, before an action will lie. An act of commission may be one in which force is employed as a means to the end, or it may be without force. This is one of the primary divisions which we have made in our discussion of specific wrongs; made, because it brings clearly be- fore the mind the ancient origin of many supposedly modern torts; used, because by it we can see plainly the historic reasons underlying many important wrongs of to-day; and insisted upon, because the foundation of our modern law of torts lies in ancient wrongs, and cannot be properly understood and ap- plied without appreciating and emphasizing this fact. By "force" is not intended physical violence. It is a trespass to step across the boiindary line of a man's uninclosed land. Torts, coupled with force, include all wrongs of commission to rights in tangi- ble matter, wrongs to rights in the body, life, liberty and security, and wrongs to rights in tangible prop- erty, its possession and exclusive control. Wrongs without force embody all wrongs of omission, to tan- gible or intangible matter, and wrongs of commis- sion to rights in intangible matters, injuries to repu- tation, health and relative rights. Beyond this, however, is a modern metaphysical division of wrongs called torts, not yet fully appre- ciated; a basis of unity, upon which all torts may be said to be related, springing out of the fact of ex- perience; a fundamental principle, upon which the subject was unconsciously developed and is expand- ing, which is outlined by Pollock, apprehended by Holmes, and is yet to be completely comprehended. By these eminent authors, the modes of violating duties are dependent upon the nature of the duties themselves. Three grades of duties are outlined. 15 GENERAL NATURE OF TORTS. § 10 The first class embraces those absolute duties which, when broken, give rise to tort, whether the acts in- terfering therewith are unintentional or accompanied with the utmost care, or are even beneficial. In the second are those duties which are only broken when one fails to use care, or is negligent in doing or not doing a given act. Thirdly, they include those acts which are in willful disregard for others, in which the act or omission, unconnected with any malicious or willful intent, is not wrongful, but the duty lies to refrain from acting willfully or maliciously. In his learned treatise on the "Common Law," Mr. Justice Holmes says: "The theory of torts may be summed up very simply. At the two extremes of the law are rules determined by policy without ref- erence of any kind to morality. Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community. But in the main the law started from those intentional wrongs which are the simplest and most pronounced cases, as well as the nearest to the feelings of revenge which lead to self-redress. It thus naturally adopted the vo- cabulary, and in some degree the tests, of morals. But as the law has grown, even when its standards have continued to model themselves upon those of morality, they have necessarily become external, be- cause they have considered, not the actual condition of the particular defendant, but whether his conduct would have been wrong in the fair average of the community, whom he is expected to equal at his peril. In general, this question will be determined by con- sidering the degree of danger attending the act or conduct under the known circumstances. If there is danger that harm to another will follow, the act is generally wrong in the sense of the law The 8 10 GENERAL NATURE OP TORTS. 16 tendency of a given act to cause harm under given circumstances must be determined by experience. And experience either at first hand or through the voice of the jury is continually working out concrete rules, which in form are still more external and still more remote from a reference to the moral condition of the defendant, than even the test of the prudent man which makes the first stage between law and morals." 25 The field of torts may be viewed as a body of wrongs springing from one source — that of willful disregard of the rights of others, many of which by growth and development have passed from that stage in which negligence alone constitutes the chief evil of the wrong, and some have reached the height of concreteness in which naught but the act itself need be alleged to constitute a cause of action. The last class just mentioned, the first in the pre- vious order, we have designated in our chapter and part headings as wrongs "without right," because the act itself is wrongful. Thus, one who sets a spring-gun or keeps vicious animals on his premises does so at his peril. The middle group we have classed under the head of "Negligence," indicating that the want of care is the sole distinguishing feature. In the extension of "negligence" into "nuisance" we have embraced a number of wrongs which probably might well be treated under those "without right," although they are most closely connected to negligent acts. They illustrate the development of one class into the other as described by Justice Holmes. Lastly, we have indicated the remaining group of wrongs as those "by intention," adding also "with negligence," as, in our estimation, all wrongs ex de- 25 Holmes on the Common Law, 161, 162. 17 GENERAL NATURE OF TORTS. § 10 licto have the common origin in intentional disregard for the rights of others. In some acts this element is conclusively presumed; in others, it is presumed only upon the proof of lack of care, while in others it must be shown in all completeness. Rights are correlated with duties, and as all duties whose breach give rise to actions in tort have such a common origin, so all rights correlated therewith have a common source, and those rights upon whose disregard we may predicate an action ex delicto origi- nally were rights to be unmolested by intentional carelessness of others, some of which have now be- come absolute, and many conditional rights, while in others the original nature of the right is un- changed. Thus we may see, perhaps dimly but, we believe, certainly, the bond so often sought for, despaired of by many, and grasped by a few, which binds the classes of torts together and enables us to present the subject as a complete and united portion of the law. Torta, Vol. 1—2 § 11 RIGHTS AND DUTIES VIOLATED BY TORTS. 18 CHAPTEK II. CLASSIFICATION OP EIGHTS AND DUTIES VIOLATED BY TOKTS. § 11. Of legal rights. § 12. Classification or division of rights. § 13. Absolute and relative rights further particularly considered. § 14. Right of personal security. § 15. Right of personal liberty. § 16. Right to life. § 17. Liberty of conscience — Religious liberty. § 18. Right of property. § 19. Right of suffrage. § 20. Rights in personam and in rem. § 11. Of Legal Rights. — "The primary and princi- pal objects of the law are rights and wrongs." 1 The idea of rights, as we encounter them in the great body of wrongs we term torts, is particularly well expressed by Professor Hammond: "We have .... the rights and wrongs .... originating .... in that reason which is the common law, but rarely traceable to any distinct command They are shaped and governed by the every-day interests of men and the purposes of daily life, and that the law which defines or limits them is usually formed from them, and intended to mark off their limits, and pre- vent the conflicts which in actual life are constantly arising between them. So far from lying at the basis of the system and determining the form and contents of every right, the law of a given case is usually the last thing to be determined, and cannot be accurately stated until the courts of justice have measured the relative extent of the conflict rights, l Blackstone's Commentaries, 122. 19 RIGHTS AND DUTIES VIOLATED BY TORTS. § 12 and drawn this line between them The entire subject matter of law falls into a classification of rights and wrongs and duties." The rules of law by which legal rights are to be determined may be writ- ten or unwritten, natural or positive, constitutional or statutory. The fundamental classification of le- gal rights as furnished us by Blackstone became the bulwark of the American law of torts, by which the ramification of human acts are to be judged. These rights found lodgment in our constitutions, and are unchangeable except at the will of the people. § 12. Classification or Division of Rights.— The im- portance of a proper conception of legal rights lies in the fact that it is necessary to ascertain what a legal right is, and how many rights there may be, in order to determine whether there is a right of action and how many rights of action there are in a given transaction. This is not always easily ascertained; "since a single act may be treated as a right, or any number of successive acts, or even different acts, pro- vided they are all connected together, and may equal- ly be treated as one right. Our only method of iden- tifying rights, therefore, and of classifying them, is according to their objects, or according to the persons liable to the duties or obligations that correspond to the rights in question." As matter of fact, every right is a right of a per- son, and Blackstone's division is into rights of per- sons and rights of things, the latter being a right with reference to its object, but still pertaining to the person. The original classification was into ab- solute and relative rights; the former being such as would belong to man in a state of nature, and which everyone is entitled to enjoy, in or out of society, or such as belong to individuals in a single, uncon- nected state. Eelative rights are those that arise I 12 RIGHTS AND DUTIES VIOLATED BY TOETS. 20 from the civil and domestic relations. But, with us, all rights are such as we have as members of society, and while we speak of inalienable rights, all abso- lute rights are found guaranteed in our fundamental constitutional law. The law in reality deals only with relative duties, such as men owe each other in social relations. It is said that the absolute rights of men consist properly in a power of acting as one sees fit without any restraint or control, unless by the law of nature. But, as Blackstone says, every- one, when he enters society, gives up a part of his liberty, as the price of so valuable a purchase as the acquisition of social and municipal relations. 2 Statesmen and judges have even doubted whether nature ever endowed us with any such right to do as we see fit. The law of nature contemplated that we should live as members of society, and it is the natural duty to contribute to the necessities of so- ciety. It is a principle of natural law, or as origi- nating in municipal or social institutions, that the right of man in his conduct and in the use of his property is restricted by a due regard to the equal rights of others. 3 When we contemplate absolute rights, it must be supposed that the promptings of men in the exercise of those rights naturally recog- nize the principle of equality of right, which must of necessity be the basis of all society, and this, then, imposes upon all the duty of yielding certain things to others. The precedent for the declaratory bill of rights was first established in England by the Magna Charta making generous provision for all classes of freemen, and the Petition of Right asserting by stat- ute the rights of the nation as contained in their an- cient laws. 4 The absolute rights were subdivided 2 Blackstone' s Commentaries, 127. 8 Snyder v. Warford, 11 Mo. 513, 49 Am. Dec. 94. 4 2 Kent's Commentaries, 10. 21 EIGHTS AND DUTIES VIOLATED BY TORTS. § 13 into three: 1. The right of personal security; 2. The right of personal liberty; and 3. The right of private property. These were all embodied in the constitu- tions of our American states, together with some additions. This is not done in the way that the Bill of Rights was obtained by Englishmen as a guaran- ty from the Crown, but with us the people them- selves are sovereign, and merely entered into a com- pact which none but themselves can change. The provision of the constitutions with which we are principally concerned in this subject is the first sec- tion of the Bill of Eights to the effect that: "All men are by nature free and independent, and have cer- tain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety." 5 Thus we see that personal security is not men- tioned in some constitutions, only liberty. The two, it is contended by some, are in fact not easily distinguishable; and practically run together as the rights of the person, beginning and ending in the person without external object. Some writers have divided wrongs to persons into two kinds — absolute and relative; and the former into (a) wrongs to the body, subdivided into assaults and imprisonment; and (b) wrongs to his name or reputation, thus mak- ing liberty a mere division of security, and elevating reputation into its place. 6 § 13. Absolute and Relative Rights Further Particularly Considered. — Blackstone was the first writer, perhaps, to mark this distinction between rights, and it has been criticised and questioned by other learned English and American writers. We b Ohio Const., art. 1, sec. 1. 6 1 Hammond's Blackstone, notes, p. 350. § 13 RIGHTS AND DUTIES VIOLATED BY TORTS. 22 have adopted it in this work as the most suitable division of rights to express the classes of primary rights in the law of torts, and justify its use from historical reasons, and as the most expressive and convenient term that has ever been devised in Eng- lish and American law. Associated with absolute rights are those rights which are considered and claimed as inalienable — those rights which belong to man as man, anywhere and as against the whole world, rights which, in fact, rise higher than the gov- ernment itself — absolute as against the government itself as well as against all persons. These rights having perched themselves so high in the opinion of men and government, it follows that any law which may be passed which in any wise infringes upon them must be held ineffective. These so-called absolute rights attach to the person, and have previously been enumerated, 7 and need not now be repeated for the comparison which we here make. Having them in mind, can it be said that those rights which fall within the term "relative," occupy the same position in the estimation of the law, or are so intrenched in law, and are guarded and protected as are the abso- lute rights? This feature of difference, in our opin- ion, completely demonstrates the fallacy of all at- tacks made upon the division. Carrying the thought further into the practical field of jurisprudence, let us suppose that the legislative branch of the govern- ment should desire to make some change in the obli- gations existing in the domestic relations, as that the husband should be liable for the antenuptial torts of the wife; or that the wife should go back to her old legal status under the common law. Can it be said or claimed that these persons can rise up in their might, resting upon their relative rights, and 7 Ante, sec. 12. 23 BIGHTS AND DUTIES VIOLATED BY TORTS. § 13 insist that they may continue to maintain the same rights as they previously did, because these rights attach to them as individuals? Not at all. What- ever rights they have, they have as members of soci- ety and being relative, they are subject to change. Or, again, suppose, as it was 1 first thought to be the case, 8 that the legislature or Congress should enact a law providing that all contracts in partial restraint of trade, which have always been valid, should no longer be valid, but might give rise to some right of action in tort. Can business men turn to some in- alienable, absolute right which they have to protect them? So might we go on with numerous like il- lustrations to demonstrate the soundness of Black- stone's division. But it is claimed that both the ab- solute rights and the relative rights are creatures of the same laws of society, and the rights which we enjoy under either class are equally relative. Austin says: "These expressions ["absolute" and "relative" rights], as thus applied, are flatly absurd. For rights of both classes are relative; or, in other words, rights of both classes correlate with duties or obligations. The only difference is, that the former correlate with duties which are incumbent upon the world at large; the latter correlate with obligations which are limited to determined individuals." 9 Professor Pomeroy, the great American writer, speaking of the rules defining rights which Black- stone calls "absolute rights of persons," remarks that they "are no more absolute than their rights of prop- erty, or rights growing out of contract. The rules defining the rights and duties existing between hus- band and wife, parent and child, etc., .... also come within the law concerning things as truly as do 8 See sec. 489, post. 9 1 Austin's Jurisprudence, sec. 539. S 13 RIGHTS AND DUTIES VIOLATED BY TORTS. 24 those which define the rights and duties existing be- tween the parties to any contract." 10 It may now be true that the right to contract has been placed upon the same plane with the ancient, absolute personal rights by the constitutional com- pact. A recent philosophic writer says that the division "is equally objectionable, because it seems to imply the idea that absolute right exists with regard to everybody, whilst the personal or relative right only exists with regard to persons the passive sub- jects of this right." 11 The same writer further says that: "The subject of personal liberty appears in an entirely different aspect under our jurispru- dence from that which it presents under the Eng- lish constitution as treated by the learned commen- tator on English law. This results from various reasons. First, an entirely different conception of civil rights. No rights are recognized as absolute. .... All the members of a community are equal." Vi He quotes from Mr. Justice McKenna in a recent case to the effect that: "It would be trite to say that no right is absolute. 'Sic utere tuo ut alienum non laedas' is of universal and pervading obligation." 13 This brings us to a consideration of absolute rights as we view them, and our reasons for so tenaciously retaining this division will now further be stated. What can more strongly stamp the rights of per- sonal liberty, security, life, limb, body and reputa- tion, as absolute rights, rights which men have as men against all power, than the historical struggle of Englishmen resulting in the grant of these rights by the crown in the Magna Charta? That marked an era in English jurisprudence when it was universally 10 1 Pomeroy's Equity Jurisprudence, sec. 92. n Andrew's American Law, p. 135. 12 Id., p. 612, sec. 518. . 13 Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. Rep. 281. 25 RIGHTS AND DUTIES VIOLATED BY TORTS. § 13 conceded that men had certain inalienable absolute rights which no power could take away or abridge. Did Englishmen enjoy these rights fully and com- pletely before this step? If so, why the necessity for the step? If they did not regard these rights as so far above, and so much more sacred, than the large class of relative rights, why did they thus limit their demands? This was Blacks tone's division, and this is the division that crept into American jurispru- dence. And when our people came to forming a society, they not only placed these absolute rights in the mutual compact, but they extended the list and included other rights, viz., the right to contract, rights of property, etc., which have a far-reaching effect on our jurisprudence. But in the consideration of the law of torts no divi- sion of rights so aptly suits our purpose, or more truly expresses the real notion of the subject, than abso- lute and relative rights. It is analogous to the use of the common-law forms of actions which enables us to correctly arrive at the right of action. With the explanations thus given the reader may understand the structure of this book. First, is taken up the absolute personal rights; and though, as is sometimes claimed, personal rights may embrace the right to contract, the topic of this work eliminates that branch of personal rights from this discussion. We place "Constitutional Rights," etc., and "Com- mon-law Eights," etc., at the head of chapters. By that will be readily understood the rights guaran- teed and protected by the constitution, and those ex- isting by the authority of the common law. When we say "Common-law Relative Rights," "Wrongs Affecting Domestic Relations," is meant to comprehend those rights which we have as members of society and in these relationships. § 14 RIGHTS AND DUTIES VIOLATED BY TORTS. 26 By "Injury to Statutory Relative Rights," "Death by Wrongful Act," etc., is understood the creation of new rights by statute that affects certain rights existing by virtue of certain relations. Rights as against unlawful searches and seizures, educational rights, religious rights, and rights of suffrage are called constitutional relative rights, because they primarily exist only in the municipal society, though they are now made rights absolute as much as were the ancient absolute rights. Although the rights of persons and of property are equally placed within the constitutional protective inhibitions, and in that sense may be said to be rel- ative, yet the historical conceptions of the absolute rights belonging to men as men place such rights more completely beyond municipal regulation than do those rights existing in certain relations between men as men, and those rights to the enjoyment of property. § 14. Right of Personal Security.— The right of per- sonal security is guarded by provisions which have been transcribed into the constitutions in this country from Magna Oharta, and other fundamental acts of the English parliament, and it is enforced by addi- tional and more precise injunctions. 14 The right of personal security consists in a person's legal and unin- terrupted enjoyment of his life, his limbs, his body, his health, and his reputation. 15 This is secured by the provision of the constitution guaranteeing the en- joyment of the inalienable rights. That a person may enjoy such rights it is incumbent that others shall so regulate their personal conduct in social in- tercourse that no injury is done. A violation of this 14 2 Kent's Commentaries, 12. 15 1 Blackstone's Commentaries, 129. 27 RIGHTS AND DUTIES VIOLATED BY TORTS. § 14 duty may be by the use of force or without force. Blackstone contended that all civil injuries were of two kinds: the one without force or violence; the other coupled with force and violence. 16 The dis- tinction of private wrongs into injuries with and without force runs through all such wrongs. This is still quite true, and in the study and consideration of the law of torts we find use for this distinction, enabling us, as it often does, to solve problems in pro- cedure. This does not mean that there must in all cases be actual force, as it is frequently only con- structive. "Its clearest mark is a direct intrusion upon another's rights. The least touch of his person is an assault, the first step over his boundary without his license, the most civil detention of his person against his will, are injuries with force. On the other hand, a conversion or detention of his goods, or the most offensive nuisance to his home, or the most bare- faced fraud upon him, is an injury without force. Any infringement upon the security of a man's per- son by physical means, any restraint of his liberty of movement, any interference with his tangible prop- erty, real or personal, is a forcible one; but his prop- erty rights not in actual possession may be damnified ever so much without committing one." 17 Not only must others so regulate their personal con- duct as not to injure others, but they must observe a rule embodied in a maxim which lies at the founda- tion of all right to use one's property. A man does not have absolute and unlimited dominion over his real or personal property to control it at his mere will or pleasure, but his power and authority are re- stricted so that its exercise shall not impair the rights of others. It is regarded by some as a principle of 16 3 Blackstone's Commentaries, 157. 17 3 Hammond's Blackstone, 193, note. § 15 RIGHTS AND DUTIES VIOLATED BY TORTS. 28 natural law, or as originating in municipal or social institutions, that the right of man in the use of his property is restricted by a due regard to the equal rights of others. "Sic utere tuo ut non alienum laedas" is a maxim of the common law, as well as of common justice and sound morals. 18 It is insisted by recent authority that this maxim states the law too broadly, that the true and legal meaning of it is to "so use your own property as not to injure the rights of an- other," and that it should be limited to causing injury to the rights of another, rather than the property of another, because for an injury to the rights of an- other there is always a remedy, but there may be in- juries to the property of another for which there is no remedy. ia § 15. Right of Personal Liberty.— in its most ex- tended sense, liberty means freedom of action with- out control from any source. It is divided into nat- ural and civil liberty. In its usually accepted mean- ing, however, it is coextensive with right. Whatever one has the right to do that he is at liberty to do. When the law forbids one to act in a certain manner his liberty does not extend to the performance of such acts. In this sense liberty is in no way separable from law. "This use of the term 'liberty,' as synonymous with right, franchise and privilege, is strictly con- formable to the sense of the term as used in Magna Charta, in the Declaration of Rights, and in English statutes, grants and legal instruments." 20 It is thus a relative term, denoting that amount of freedom of action which one is allowed under the law, and can only be defined by showing the authority and extent is Snyder v. Warford, 11 Mo. 513, 49 Am. Dee. 94. is Letts v. Kessler, 54 Ohio St. 73, 85, 42 N. E. 765; Pittsburgh etc. R. R. Co. v. Bingham, 29 Ohio St. 364, 369. 20 Commonwealth v. Alger, 7 Cush. 71. 29 RIGHTS AND DUTIES VIOLATED BY TORTS. § 15 of the laws which control action at a given place and time, together with the direct effect of their injunc- tions. 21 In his divisions of absolute rights Black- stone includes that class of liberty which he calls per- sonal, and which he defines as consisting "in the power of locomotion, of changing situation, or moving one's person to whatsoever place one's own inclina- tion may direct, without imprisonment or unless by due course of law." 22 To say that personal liberty is not one of the absolute rights and inalienable from our citizens, is to dispute the contentions of our fore- fathers; is to maintain the position of King John, from which he was forced at Kunnymead; is to sup- port the arguments of Charles II, which his own par- liament, composed of such men as Coke, Elliott, Selden and Pynne, repudiated; is to overthrow that "Bible of the English Constitution," the Magna Charta, the Petition of Bight, and Bill of Rights. It may be true that personal liberty is not secure from attacks in other countries and under other laws, but the subject of torts is to be viewed as a branch of English law, and who can say that, in England or America, or any country in which English law and principles prevail, the right to personal liberty is not inalienable, is not absolute? Absolute freedom, "natural liberty," is not to be tol- erated in civil society, but in personal liberty is con- noted the limitation upon action of rules of law. In our country we do not recognize any limitation which is not fore-established by our law. Everyone may know, at the time he acts, just what limitation is placed upon him. He is not to be subjected to Star Chamber proceedings, or any arbitrary restrictions up- on his liberty, personal or other. In the words of the 21 Hurd's Law of Freedom and Bondage, sec. 41. 22 1 Blackstone's Commentaries, 134. § 16 RIGHTS AND DUTIES VIOLATED BY TORTS. 30 Great Charter, of whose authors Pitt said: "When they obtained from their sovereign that great ac- knowledgment of national rights, .... they did not confine it to themselves alone, but delivered it as a common blessing to the whole people," although evaded and bluntly disregarded by John and his suc- cessors, we may still say: "Nullus liber homo capiatur, vel imprisonetur aut dissaistur aut ullagetur aut ali- quo modo destruatur; nee super eum ibimus, nee super eum mittemus, nisi per legales judicium parium suorum, vel per legem terre. Nulli vendemus, nulli negabimus, aut differemus vectum aut justiciam." § 16. Right to Life: — Just what is meant by the provision of the constitution when speaking of the inalienable rights, being enumerated thus, "Among which are those of enjoying and defending life," is not plain. There is no doubt but at the time of the enactment of our various constitutions the generally settled rule was that no right of action for death of a human being existed. It is a singular fact that by the common law the greatest injury which one man may inflict upon another — the taking of life — was without private remedy. There were several reasons advanced for this rule. One was that personal in- juries die with the person; if death was caused by a felony, the civil remedy was merged in the felony. And then objections were made to placing a pecu- niary value upon human life. 23 In some cases, where death did not ensue actions were sustained for loss of service, but if death were instantaneous an action was held not maintainable. 34 This rule was vigor- 23 Goodsell v. Hartford etc. R. R. Co., 33 Conn. 55; Carey v. Berkshire etc. R. R. Co., 1 Cush. 475, 48 Am. Dec. 616, note, 632, where many cases are cited and the question discussed. 24 Kearney v. Boston etc. R. R. Corp., 9 Cush. 108, see 48 Am. Dec. 635, note. 31 RIGHTS AND DUTIES VIOLATED BY TORTS. { 17 ously opposed by some able jurists in this country, but without avail so far as affecting our jurispru- dence. 25 There was just as much reason why a right of action should lie for a willful or negligent act re- sulting in death, as when such conduct caused a mere personal injury. But no remedy was ever recognized until the passage of Lord Campbell's Act, 26 which has been followed by similar enactments in this country, but, as stated, all have been subsequent to the provision of the constitution above quoted, which certainly could not have contemplated a right on the part of those interested in the life of another. Compensation for homicide paid to the family of the deceased by the slayer was one of the best known institutions of the Germanic law in England, as well as on the continent. A private right of action in such cases was recognized in English common law through the Middle Ages, but went out of use for a time until the passage of Lord Campbell's Act. 27 § 17. Liberty of Conscience — Religious Liberty.— In all states are found constitutional provisions recog- nizing that all men have a natural and indefensible right to worship Almighty God according to the dic- tates of their own conscience. 28 Congress is prohib- ited from passing any law respecting religion, or prohibiting the free exercise thereof. 29 No interfer- ence with the rights of conscience is permitted, nor can anyone be compelled to attend or support any place of worship. No religious test can be required 25 Justice Dillon in Sullivan v. Union Pac. R. R. Co., 3 Dill. 334; Fed. Cas. No. 13,599; Justice Deady in Holmes v. Oregon etc. R. R. Co., 6 Saw. 262, 5 Fed. 75. 26 9 & 10 Vict., c. 92. 27 2 Reeve's History of English Law, 36; 1 Hammond's Black- stone, note, 349. 28 Cooley's Constitutional Limitations, 468, note. 29 U. S. Const., 1st Amendment § 17 EIGHTS AND DUTIES VIOLATED BY TORTS. 32 as a qualification for office, nor is any person rendered incompetent as a witness on account of his religious belief. These provisions are usually found in the constitutions. 30 "Civil and religious liberty generally go hand in hand, and the suppression of either of them, for any length of time, will terminate the ex- istence of the other." 31 "One of the great causes which led to the settlement of the American colonies was the desire of the immigrants that their govern- ment should not make discriminations against them because of their religious beliefs. It was not so much that they esteemed any particular privilege denied to them as of value sufficient to warrant leaving their country and renunciating allegiance, but they insisted upon the more general doctrine that their belief or disbelief on religious topics should not debar them from rights which the laws afforded other subjects." It was early enacted that no one should be denied any civil right merely on account of his religious prin- ciples. The object was to guarantee to everyone that his religious principles should never, under any circumstances, be made the ground of denying to him any civil right, which, with different religious prin- ciples, he might lawfully claim. 32 The Christian religion was regarded as part of the common law of England, 33 but with us, while we en- courage it so far as it is possible through governmen- tal agencies, still we steadfastly refrain from in any wise interfering with freedom of action and thought in this respect. The constitution is not the source of religious freedom, 34 but it recognizes the natural indefeasible individual right of conscience, which, in 30 Vt. Const., art. 3; Ohio Const, art 1, sec. 7. 31 2 Kent's Commentaries, 35. 32 Percey v. Powers, 51 N. J. L. 432, 14 Am. St. Eep. 693, 17 Atl. 969. 33 Bloom v. Richards, 2 Ohio St. 388. 34 Andrew's American Law, 628. 33 RIGHTS AND DUTIES VIOLATED BY TORTS. § 18 the language of the constitution, is beyond the con- trol or interference of any human authority. 35 § 18. Right of Property. — The third absolute right as laid down by Blackstone is that of property which consists in the free use, enjoyment, and disposal of all acquisitions, without any control or diminution, save only by the laws of the land. So great was the re- gard of the law for this right that it would not au- thorize the least violation of it. 36 This right is found embodied in the constitutions of our state conferring upon "all men" the inalienable right of "acquiring, possessing and protecting property." As previously stated, some courts have seemed to make a distinction between the rights of a person and the rights of property. 37 This distinction be- tween the right and property was observed in the practical application of the maxim that one must so use his property as not to injure another, claiming that there is always a remedy for an injury to the rights of another, but not for all injuries to prop- erty. 38 This does not seem to be the prevailing view. "In a strict legal sense," it is said, "land is not 'prop- erty,' but the subject of property. The term 'prop- erty,' although in common parlance frequently applied to a tract of land or a chattel, in its legal significa- tion 'means only the rights of the owner in relation to it.' It denotes a right .... over a determinate thing. Property is the right of any person to possess, use, enjoy and dispose of a thing." 39 If we consider the 35 Bloom v. Richards, 2 Ohio St. 388. 36 3 Blackstone's Commentaries, 138. 37 Letts v. Kessler, 54 Ohio St. 73, 85. 38 Id. 39 Wynehamer v. People, 13 N. Y. 388, 433; 1 Blackstone's Com- mentaries, 138; Tod v. Wick, 36 Ohio St. 370, 385; Eaton v. Boston etc. R. R. Co., 51 N. H. 504, 12 Am. Rep. 147. See Andrew's Ameri- can Law, 126; Stevens v. State, 2 Ark. 291, 35 Am. Dec. 72. Torts, Vol. 1-3 §§ 19, 20 RIGHTS AND DUTIES VIOLATED BY TORTS. 34 language of our constitutions in guarding the inalien- able right, as they do, of acquiring possessing and protecting property, we are led to believe that the legal right is separate and distinct from the tangible object of the right, viz., the land or chattel. 40 § 19. Right Of Suffrage. — Among the privileges and immunities guaranteed by the constitution is the civil right of suffrage, which, it is said, is. within the mean- ing of the general word "liberty" of the citizens. 41 It would not seem that the right of suffrage is upon an equal plane with the right of liberty, although it has equal protection under our laws. "Outside of society and disconnected with government, no per- son either has or can exercise the elective franchise as a natural right, and he only receives it upon en- tering the social compact, subject to such qualifica- tions as may be prescribed The right to vote is not vested; it is purely conventional, and may be enlarged or restricted, granted or withheld at pleas- ure, and with or without fault." 42 Each state, as a part of its sovereignty, may confer such right of citi- zenship, so long as it does not conflict with the fed- eral constitutional guaranties which forbid discrim- ination on account of race, color or previous condition of servitude. 43 The right to vote is one of the im- portant rights of citizenship, and any wrongful inter- ference by persons intrusted with the duty of super- vising the exercise of the right will result in an ac- tionable wrong. 44 § 20. Rights in Personam and in Rem.— While we follow Blackstone in many of his divisions of the law, 40 See c. 34, sec. 524, "Trespass," post. 41 Andrew's American Law, 607. See Van Valkenburg v. Brown, 43 Cal. 43, 13 Am. Rep. 136. 42 Blair v. Ridgley, 41 Mo. 63, 97 Am. Dec. 248, and note. 43 In re Wehlitz, 16 Wis. 443, 84 Am. Dec. 700. 44 See sec. 520, post. 35 RIGHTS AND DUTIES VIOLATED BY TORTS. S 20 because we believe him to have, in the main, grasped the fundamental principles upon which our law has developed, and based its rule, still with regard to his use of the terms "rights in personam" and "rights in rem," we are compelled to depart from his learned treatise. We do not contend that there is no division of law into parts, one of which relates to persons, and another to things. We do maintain that there is no separation of rights into rights of persons and rights of things. If we take these phrases to indicate the subjects of rights, that persons and things may both own or possess, and therefore be entitled to en- force rights, the proposition seems absurd upon the statement. On the other hand, it is repugnant to our ideas of liberty that we should have any rights over other persons, though we may have rights over things including acts of other persons. If we divide law into law of persons and law of things, it will be found that, far from being comple- mentary parts of our whole, they are but cross-divi- sions of the same body of rules. 45 These terms — "rights in rem" and "rights in per- sonam" — have been used by later writers to indicate a true division of rights which are in every way com- plementary, one to the other. By rights in rem is now embraced those rights which are available against the whole world, or at least, an indeterminate portion thereof. By rights in personam are indicated those which are available against a particular or defi- nite person or body of persons. In the class last mentioned are found all contrac- tual obligations; and in the other nearly all the rights whose breach constitutes torts. By Pomeroy the first class has three "genera": "1. Eights of property of every degree and kind over lands and chattels, things 46 Holland on Jurisprudence. § 20 RIGHTS AND DUTIES VIOLATED BY TORTS. 36 real or things personal; 2. The rights which every per- son has over and to his own life, body, limbs and good name; 3. The rights which certain classes of persons — namely, husbands, parents and masters — have over certain other persons standing in domestic relations with themselves — namely, wives, children, and ser- vants and slaves."* 6 The second class he divides into two "genera": "1. Eights arising from contract; and 2. Eights arising, not from contract, but from some existing relation between two specified persons or groups of persons, which is generally created by law." 47 The rights embraced in the three "genera" of the first class and the last one of the second class are the basis for the law of torts, and the first division of the second class is the foundation for the law of contracts. It remains to be noted that the third division of the first class and last division of the second class arise out of the same relations, which create not only rights to be respected by the world in general, but also rights against those particular members constituting the opposite occupants of the relation. These last rights in personam form so small a class that it is of little use to employ the division of rights into in per- sonam and in rem as a method of classifying torts. In one instance, however, the division is useful as an aid, and this is in the investigation of the character of an act to determine whether it is a breach of con- tract, a tort or both. A right in personam of the con- tractual genus as well as of the relative sort may cre- ate rights in rem, and an act which constitutes a breach of one may be a breach of the other. When this occurs the act may be treated as a tort or breach of contract. 46 Pomeroy's Equity Jurisprudence, sec. 94. 47 1 Pomeroy's Equity Jurisprudence, sec. 95. 37 EIGHTS AND DUTIES VIOLATED BY TORTS. § 20 This subject is more fully discussed elsewhere, and we cannot do more than illustrate the principle. Let us suppose, as a familiar instance, that a telephone company has contracted to furnish to a business house a telephone, and to maintain it for a certain length of time. Here is created in the proprietor of the business house a right in personam against the company — i. e., a right to allow the telephone to re- main undisturbed in the house. A right in rem also arises against the world, including the company, not to disturb the enjoyment of the telephone by the pro- prietor. Suppose, however, the telephone company willfully severs the wires connecting the telephone with the exchange, before the expiration of the con- tract, and without just excuse. Here we may see that not only have they infringed the right in per- sonam created by their contract, but also the right in rem arising by the same contract. While we thus show an appreciation of the modern notions of rights, though the meaning ascribed to "rights in personam," and "rights in rem," seems some- what arbitrary, still we have followed Blackstone's division of rights in the structure of this work, as ap- pears in the Table of Chapter Headings, it having been the mold upon which American law was formu- lated. PART TWO. LIABILITY OF PERSONS. [Part Two considers extensively the liability of persons. Although almost the entire body of the law of torts might be brought under this head, if the ram- ifications of the acts of persons be pursued, the subject of particular liability is carried to the extent only of the general doctrines of responsibility, with specific il- lustrations of some wrongs. The general doctrines of. liability of persons — normal, abnormal, natural and artificial, or as affected by status, manner of commis- sion of act, duties, relation, and so on — stand aloof from the specific wrongs, and are more appropriately considered separately. J CHAPTER III. LIABILITY OF PERSONS AS AFFECTED BY STATUS. § 21. Normal tort-feasor.. § 22. Infants— Principles governing their liability. § 23. Same continued— Capacity to commit torts involving malice. § 24. Liability of infant for tort arising out of or connected with contracts— General doctrine stated. § 25. Same continued— Contracts of bailment— Conversion or un- skillful management. § 26. Same continued— Liability for conversion not connected with bailment. | 27. Infant's liability for fraud. § 28. Infant estopped from denying liability. § 29. Infant's liability for money stolen or embezzled. (39) §§21,22 LIABILITY OF PERSONS AFFECTED BY STATUS. 40 § 30. Infant's liability for tort committed under command or duress. § 31. Infant's liability for torts of agents. § 32. Contracts of infant in settlement of torts. § 33. Liability of lunatics— General principles governing. § 34. Same continued — Wrongs not of intent. § 35. Same continued — Wrongs of intent. § 36. Same continued— Liability for negligence. § 37. Liability of married woman for torts— Introductory. § 38. Same continued — The common law. § 39. Same continued— Liability under modern statutes. § 21. Normal Tort-feasor. — A normal tort-feasor, if so we may designate anyone who wrongs another, is one who is of full age, of sound mind, and, if a woman, unmarried, who has alone committed the breach of duty, and who stands in no peculiar relation to the person injured, or to the public, or at least one who violates no duty toward another springing out of any peculiar relations toward that other or the pub- lic. In considering the variations upon the liability of the normal person, or who are abnormal, tort-feasors, two things are to be considered, viz. : The liability dif- ferent from the normal person, and in what respect; and second, To what we may ascribe the cause of their variation. § 22. Infants— Principles Governing Their Liability;— It is frequently stated by courts and writers that in- fants are liable for their torts the same as adults. 1 This is not a full statement of the law concerning their liability. For some torts an infant, without re- gard to his age, is liable, the same as an adult; while in respect to others, his liability depends upon his age, by which test alone it may be determined l Humphrey v. Douglass, 33 Am. Dec. 179, note, and authorities cited; Cooley on Torts, 103; Smith v. Kron, 96 N. C. 392, 2 S. E. 533; Conklin v. Thompson, 29 Barb. 218. 41 LIABILITY OF PERSONS AFFECTED BY STATUS. § 22 whether or not he has capacity to commit a class of torts requiring certain essential constituent elements to constitute a wrong, which can only be committed by persons who have sufficient knowledge and discre- tion to understand the nature of the acts involved. Subject to the application of this test, the rule may be stated, that an infant is liable for his "personal torts," those not inseparably connected with contract, the same as an adult, the basic principle governing his responsibility being that the person whose right has been violated should be recompensed for the in- jury done. 2 One might well inquire why the capacity of an in- fant to commit a particular tort should be consid- ered in determining his liability, when the funda- mental principle governing his responsibility is com- pensation to the injured party without regard to age. The answer is, that the same tests must be applied in determining his liability as in the case of an adult, it being impossible to hold an infant for torts where, by reason of his youth, certain essential elements must necessarily be wanting. But different considerations govern the determination of the liability of an infant than that of an adult, viz.: The age of the former. Extreme youth of an infant will excuse him from vin- dictive or punitive damages, want of discretion being a good answer. 3 Trespasses to property do not in- volve any elements requiring a certain capacity to commit the wrong, and hence infants are liable there- for at any age, in the same manner as adults. 4 And 2 Humphrey v. Douglass, 33 Am. Dec. 179, note, and numerous cases there cited; Smith v. Kron, 96 N. C. 392, 2 S. E. 533; Conklin v. Thompson, 29 Barb. 218; Dial v. Wood, 9 Baxt. 296. 3 Hutching v. Engel, 17 Wis. 230, 84 Am. Dec. 741; O'Brien v. Loomis, 43 Mo. App. 29. 4 Paul v. Hummel, 43 Mo. 119, 97 Am. Dec. 381; Humphrey v. Douglass, 10 Vt 71, 33 Am. Dec. 177; Bullock v. Babcock, 3 Weud. { 22 LIABILITY OF PERSONS AFFECTED BY STATUS. 42 bo may infants of even twelve or thirteen years be held liable for trespass to the person by handling ar- ticles or property by which they injure another, even in sport. For example, a boy twelve years of age was held liable in an action for assault and battery for shooting an arrow, by which the eyes of another were put out; 8 and a boy of thirteen who, in sport, but wan- tonly, threw a piece of mortar, which struck and put out the eye of another, was held liable for assault and battery. 6 And so a boy of fourteen years who frightens a horse, by the explosion of a firecracker, causing the death of the horse, is liable for the value of the horse. 7 An infant may be held liable for nui- sance maintained on real property, 8 or for trespass quare clausum fregit, 9 or for disseisin. 10 And when of the proper age, he may be held liable for seduction, 11 for embezzlement, 12 and for unlawful shooting. 13 To hold an infant for an act of negligence, he must be of such age as to possess sufficient knowledge and discretion to understand the nature of the act, so as to enable him to determine the degree of care required under the circumstances. A very young child is inca- pable of committing an act of negligence. 14 An in- 391; Peterson v. Haffner, 59 Ind. 130, 26 Am. Rep. 81; Stack v. Cavenaugh, 67 N. H. 149, 30 Atl. 350; School Dist. v. Bragdon, 23 N. H. 507; Huchting v. Engel, 17 Wis. 230, 84 Am. Dec. 741. 5 Bullock v. Babcock, 3 Wend. 391. e Peterson v. Heffner, 59 Ind. 130, 26 Am. Rep. 81. 7 Oonklin v. Thompson, 29 Barb. 218. 8 2 Addison on Torts, 1126; Schouler on Domestic Relations, 564; Morain v. Devlin, 132 Mass. 88, 42 Am. Rep. 423. » Scott v. Watson, 46 Me. 362, 74 Am. Dec. 457. 10 Marshall v. Wing, 50 Me. 62. n Lee v. Hefley, 21 Ind. 98; Becker v. Mason, 93 Mich. 336, 53 N. W. 361; Fry v. Leslie, 87 Va. 269, 12 S. E. 671. 13 Peigne v. Sutclife, 4 McOord, 387, 17 Am. Dec. 756. 13 Conway v. Reed, 66 Mo. 346, 27 Am. Rep. 354. 14 Barnes v. Shreveport City R. R. Co., 47 La. Ann. 1218, 49 Am. St. Rep. 400, 17 South. 782; Evansville v. Senhenn, 151 Ind. 42, 68 Am. St. Rep. 218, 47 N. E. 634, 51 N. E. 88. 43 LIABILITY OF PERSONS AFFECTED BY STATUS. § 23 fant is required to exercise only such care as is rea- sonably expected of children of his age and capacity, and his responsibility is governed accordingly. 15 Hence, an infant cannot be held to the same degree of care as persons of mature age. 16 An infant is liable for negligently riding his horse upon a foot-passen- ger at a street crossing. 17 § 23. Same Continued— Capacity to Commit Torts In- volving Malice. — A certain class of personal torts de- serves special mention, because the responsibility of an infant may depend, as in criminal law, upon his capacity to commit the act. It has been contended by some writers that, as malice is an ingredient of slan- der, an infant cannot be held therefor. 18 But apply- ing the same rule of responsibility prevailing in crim- inal law, it will be readily apparent that when the infant has reached the age of discretion, and is capable of appreciating the nature of his act, and of enter- taining malice, he can be held responsible for torts of which malice is an essential ingredient. And it has been held that he is liable for tort in circulating a libel or slander. 19 As an infant cannot maintain an action in his own name, it must follow that he cannot be held for malicious prosecution of an action brought by his next friend. 20 But he may be held where he comes of age during the pendency of such an action and afterward knowingly prosecutes it. ai IB Lake Erie etc. R. R. Co. v. Mackey, 53 Ohio St. 370, 53 Am. St. Rep. 641, 41 N. E. 980; Spillane v. Missouri Pac. Ry. Co., 135 Mo. 414, 58 Am. St Rep. 580, 37 S. W. 198; Neal v. Gillett, 23 Conn. 437. 16 Price v. Atchison Water Co., 58 Kan. 551, 62 Am. St Rep. 625, 50 Pac. 450. 17 Stringer v. Frost, 116 Ind. 477, 9 Am. St Rep. 875, 19 N. E. 331. is Humphrey v. Douglass, 33 Am. Dec. 180, note. l» Fears vi Riley (1898), 148 Mo. 49, 49 S. W. 836. 20 Burnham v. Seaverns, 101 Mass. 360, 100 Am. Dec. 123. 21 Sterling v. Adams, 3 Day (Conn.), 41L § 24 LIABILITY OF PERSONS AFFECTED BY STATUS. 44 § 24. Liability of Infant for Tort Arising Out of or Con- nected with Contract— General Doctrine Stated.— There is difficulty in harmonizing the cases and the rules of law deduced therefrom, with respect to the question of the liability of infants for a tort which may be considered to have arisen out of a transaction of which contract was an essential, or an incident. This arises, perhaps, more from a confusion of ideas and want of careful analysis of the particular wrong, and from an improper application of principles. The doc- trine may be safely stated that an infant cannot be held responsible for a tort committed under a con- tract or in the execution of one. Some courts have adopted the rule that whether a contract is an induce- ment to a supposed tort or not, the infant cannot be held responsible. Where the conduct of the infant is in fact a violation of a contract, and is such that if he were an adult the person injured may sue either in tort or upon contract, then no suit can be maintained against the infant. The earlier doctrine as expressed by the English courts was to the effect that a contract could not be converted into a tort that one might sue an infant, the principle on which it was based being that, as infancy is a shield of protection, it would be inequitable to destroy it and change the form of the suit to tort from contract, so as to hold the infant lia- ble. And this rule is steadily maintained in some states. 22 22 Jennings v. Rundall, 8 Term Rep. 355; Penrose v. Curren, 3 Rawle, 351, 24 Am. Dec. 356 (where the foundation of the action is contract, disguise it as you may, it is an attempt to convert a suit originally in contract into a constructive tort, so as to charge the infant). In Campbell v. Stakes, 2 Wend. 137, 19 Am. Dec. 561, where an infant hired a horse, and wrongfully drove and mis- treated it, it was held case would not lie because it would be an affirmance of the contract, and the plea of infancy would be good, but that trespass would lie: Stack v. Cavanaugh, 67 N. H. 149, 30 Ml. 350; Nash v. Jewett, 61 Vt. 501, 15 Am. St Rep. 931, 18 Atl. 47 45 LIABILITY OF PERSONS AFFECTED BY STATUS. § 24 These principles find expression principally in cases involving contracts of bailment and fraud. It is con- sidered by the courts coming to the foregoing conclu- sion that going to a different place with a horse than contemplated in the act of hiring does not amount to an actual conversion by an infant, and is wholly un- like a conversion unconnected with the contract, or a destruction of the property, or a refusal to deliver, and that fraud becomes part of the contract; that when it is necessary to call the contract in aid to make out the tort, that then the infant cannot be held. 23 On the other hand, many cases are found which sup- port the view that an infant may be held liable for a tort where the wrongful act either precedes the con- tract or follows the same as an independent act, but does not become a part of, or connected with, the same, or where the wrongful act is of such nature as to constitute a disaffirmance of the contract, or, as one court states the rule — perhaps in the extreme— when the tort is subsequent to a contract, and so far con- nected with it, that but for the contract the tort would not have been committed. Tort and contract, as acts of men, are of such differ- ent nature that it would seem that a party, even when acting under a contract, completely departs therefrom when he commits a tort, and does in fact ff alse representation as to age) ; Wilt v. Welch, 6 Watts, 9, repudiat- ing the doctrine that a positive willful act disaffirms a contract of bailment, which finds abundance of support; Tuckner v. Moreland, 1 Am. Lead. Cas. 280, 332; Schenk v. Strong, 4 N. J. L. 99; Gilson v. Spear, 38 Vt. 311, 88 Am. Dec. 659 (deceit in sale of horse) ; Doran v. Smith, 49 Vt. 353; Prescott v. Norris, 32 N. H. 101 (false war- ranty); Morrill v. Aden, 19 Vt 505; Grove v. Nevill, 1 Keb. 778 (fraud). See cases, note 42, post. See discussion and authorities on this topic in 33 Am. Dec. 180, note; 18 Am. St. Rep. 720, note; Slay- ton v. Barry, 175 Mass. 513, 78 Am. St. Rep. 510, 56 N. E. 574; see extract from this case, note 42, post. 23 Tuckner v. Moreland, 1 Am.' Lead. Cas. 280, 322, note. See ante, note. See cases, note 24, post I 24 LIABILITY OF PERSONS AFFECTED BY STATUS. 46 commit an entirely different, independent act from the contract. When, however, the tort precedes or follows the contract, though but for the contract the tort may not have been committed, then it is consid- ered as not to arise out of, and have no connection with, the contract, and the infant may be held liable. It would seem that the better reason is in favor of this rule, and a careful analysis of the cases demonstrates this to be so, and it is supported by the greater weight of authority. 24 We have stated the two positions taken by the different courts on the question of the liability of an infant for torts which have some connection with, or relation to, a contract, or where the acts are wholly at variance with the idea of a contract, and amount to a repudiation thereof, or either precede or follow a contract, and have classified the cases generally under these two heads, but without respect to the kind of a contract involved therein. 24 Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189 (positive willful acts in bailments); Fitts v. Hall, 9 N. H. 441; Churchill v. White (1899), 58 Neb. 22, 76 Am. St. Rep. 64, 78 N. W. 369 (where an in- fant hired a horse for a specified journey, and drove to another place, held liable); Campbell v. Perkins, 8 N. Y. 430; Ashlock v. Vivell, 29 111. App. 388; Mathews v. Cowan, 59 111. 341; Moore v. Eastman, 1 Hun, 578; Hall v. Corcoran, 107 Mass. 251, 9 Am. Rep. 30; Burnard v. Haggis, 108 Eng. Com. L. 45; Fish v. Ferris, 5 Duer, 49; Nolan v. Jones, 53 Iowa, 387, 5 N. W. 572; Wooley v. Holt (Exch. Div. 1876), 35 L. T., N. S., 631, following Burnard v. Haggis, supra; Ferguson v. Bobo, 54 Miss. 121; Homer v. Thwing, 3 Pick. 492; Shaw v. Coffin, 58 Me. 254, 4 Am. Rep. 290; Freeman v. Boland, 14 R. I. 39, 51 Am. Rep. 340; Elwell v. Martin, 32 Vt. 217; Ray v. Tubbs, 50 Vt. 688, 28 Am. Rep. 519; Baxter v. Bush, 29 Vt. 465, 70 Am. Dec. 429; Vance v. Word, 1 Nott & McC. 197, 9 Am. Dec. 683; Barham v. Turbeville, 1 Swan (Tenn.), 437, 67 Am. Dec. 782 (fraud); Christian v. Welch, 7 La. Ann. 533 (fraud); Oliver v. McClelland, 21 Ala. 675. "An infant may be charged for a tort arising subsequent to, and so far connected with, his contract that but for the latter the tort would not have been committed": Fitts v. Hall, 9 N. H. 441; Humphrey v. Douglass, 33 Am. Dec. 180, note, and cases. 47 LIABILITY OF PERSONS AFFECTED BY STATUS. § 24 The opinion is expressed that the greater weight of authority, and the better reason is in favor of the rule that a tort committed before or after the con- tract, or where a willful tort is such an act as amounts to a disaffirmance of the contract, or where in the commission of such a tort the infant acts be- yond the scope or import of the contract, that the in- fant is in such cases liable. It must be conceded, however, that where the com- plaint is that the infant merely unskillfully, negli- gently, and carelessly carries out or performs its con- tract, there is merit in the doctrine that want of knowledge, judgment and discretion by reason of in- fancy, is a defense, especially where he keeps within the terms of the contract. This rule, as adjudged in a few cases, seems not to be questioned. 25 The general rules of law as deduced from the au- thorities have been stated in a general way, without particular classification of the kinds of torts for which infants may or may not be held responsible. A fur- ther classification may be helpful. None of the cases touching the responsibility of infants for fraud have been cited in connection with the statement of the gen- eral doctrine, this being done elsewhere. 26 It is main- tained that the same general doctrines above stated are applicable to such cases. It would seem that there is no conflict whatever among the authorities so far as the general doctrine is concerned, the only con- 25 Campbell v. Stakes, 2 Wend. 137, 19 Am. Dec. 561; Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189; Moore v. Eastman, 1 Hun, 578. "A failure by an infant to observe due care of a horse hired by him, and lack of moderation in driving, will not render him liable as for a tort .... where there was no willful and intentional in- jury inflicted by him": Young v. Muhling, 63 N. Y. Supp. 181, 48 App. Div. 617; Lowery v. Cate (Tenn., 1901), 64 S. W. 1069 (where an in- fant owner contracted to thresh wheat, and by reason of having no spark-arrester property was destroyed by fire). 26 Sec. 27, post § 24 LIABILITY OF PERSONS AFFECTED BY STATUS. 48 flict of any consequence arising in its application to particular cases of tort. Judge Elliott of the Indi- ana supreme court well states what is a reasonable doctrine as follows: "Aside from mere personal torts, it is scarcely pos- sible to conceive a tort not in some way connected with contract, and yet all the authorities agree that the liability is not confined to mere torts. There is a connection between a contract and a tort in every case of bailment, of the bargain and sale of personal property, and of the purchase and sale of real estate, and if an infant is not responsible for his false repre- sentation of his age, in connection with such transac- tions, there is not within the whole range of business transactions any case in which he could not be made liable for his fraud. There are many cases .... where there is some connection between the contract and the tort, and yet it is unhesitatingly held that the infant is liable for his tort. The cases certainly do agree; it is, indeed, difficult, if not impossible, to per- ceive how it could be otherwise, that although there may be some connection between the contract and the' wrong, the infant may be liable for his tort The only logical and defensible conclusion is, that he is liable, to' the extent of the loss actually sustained, for his tort, where a recovery can be had without giv- ing effect to his contract. The test is ... . can the infant be held liable without directly or indirectly en- forcing his promise?" 37 It certainly is sound and logical to hold that when- ever an infant commits a tort, whether by willful or intentional act, by negligence or fraud, that he de- parts from the contract. The infant may waive the plea of infancy, and he 27 Rice v. Boyer, 108 Ind. 472, 58 Am. Rep. 53. 49 LIABILITY OF PERSONS AFFECTED BY STATUS. § 25 does so by going to trial. He cannot interpose his minority as a ground for setting aside the verdict. 28 § 25. Same Continued— Contracts of Bailment— Con- version or Unskillful Management.— Many of the" au- thorities cited in the foregoing section as supporting either of the two theories there stated relate to con- tracts of bailment, and it is the purpose here to give a further particular classification of the cases upon this question. The question of the liability of an infant who hires a horse for the express purpose of driving to a par- ticular place, but instead either drives to another and different place, and the horse is injured, or though driving to the place agreed upon, willfully mistreats and injures the animal or unskillfully and negligently cares for the same, by reason whereof the horse is in- jured, has been before the courts many times, and the general doctrines stated in the previous section have been variously applied. There is perhaps almost en- tire uniformity of opinion upon the latter proposition, that if under the contract of hiring, the infant so un- skillfully and carelessly drives and manages the horse, and the animal is thus injured, the action being founded upon contract or so closely connected or iden- tified therewith, there is no liability. 29 Where an infant hires a horse to drive to a par- ticular place and drives to another, one line of author- ity, and by far the greater weight, holds that to be transcending the limits of the contract by going to a different place, amounts to a dispossession of the owner, and constitutes conversion for which an action, not being founded on contract, will lie. The conver- 28 Watson v. Wrightsman, 26 Ind. App. 437, 59 N. E. 1064. 29 Moore v. Eastman, 1 Hun, 578; Eaton v. Hill, 50 N. H. 235, 9 Am. Rep. 189. See Walley v. Holt (Exch. Div., 1876), 35 L. T., N. S., 631; Young v. Muhling, 63 N. Y. Supp. 181, 48 App. Div. 617. Torts, Vol. 1-4 § 25, LIABILITY OF PERSONS AFFECTED BY STATUS. 50 sion is not under the contract, but by abandoning or terminating the bailment. 30 Courts of other states have held that if a horse or oth This is the more reasonable and logical rule, and an examination of the cases holding that a release of one discharges all will disclose that the release was construed to be of such import as to be in full satisfaction, and the rule is of ancient origin that an absolute release of one joint tort-feasor oper- ates as a discharge of all. 1<$ ° Where a passenger on one railway who is injured by a collision with a car on another road, releases the company on whose road he was a passenger from all liability, such release operates as a complete dis- charge of the other company, and this is so even though the collision is due entirely to the negligence of Lhe latter company. 161 § 64. Judgment and Execution in Action Against All Joint Tort-feasors. — Where suit is brought against all of several joint tort-feasors, and recovery is had, the same amount must be awarded against all of the de- fendants found liable, and not a different sum against each. 1634 159 Snow v. Chandler, 10 N. H. 92, 34 Am. Dec. 140; Shaw v. Pratt, 22 Pick. 307; Line v. Nelson, 38 N. J. L. 358; McCrillis v. Hawes, 38 Me. 568; Chamberlin v. Murphy, 41 Vt. 110; Sloan v. Herrick, 49 Vt. 328; Bloss v. Plymale, 3 W. Va. 393, 100 Am. Dec. 752; Catskill Bank v. Messenger, 9 Cow. 37; Gunther v. Lee, 45 Md. 60, 67, 24 Am. Rep. 504; Ellis v. Esson, 50 Wis. 138, 153, 36 Am. Rep. 830, 6 N. W. 518; Seither v. Philadelphia Traction Co., 125 Pa. St. 397, 17 Atl. 338, 11 Am. St. Rep. 905, and note, 906; Ayer v. Ashmead, 31 Conn. 447, 83 Am. Dec. 154; Stone v. Dickinson, 5 Allen, 29, 81 Am. Dec. 727. 160 Merry weather v. Wixan, 8 Term Rep. 186; Thurman v. Wild, 11 Ad. & E. 453; Ellis v. Bitzer, 2 Ohio, 89, 15 Am. Dec. 534. 161 Seither v. Philadelphia Traction Co., 125 Pa. St. 397, 11 Am. St. Rep. 905, 17 Atl. 338; Tompkins v. Clay Street R. R. Co., 66 Cal. 165, 4 Pac. 1165. 162 Hunter v. Wakefield, 97 Ga. 543, 54 Am. St. Rep. 438, 25 S. E. 347. 65 JOINT LIABILITY OF PERSONS. 120 CHAPTER V. JOINT LIABILITY OF PEESONS AS AFFECTED BY EELATION TO ACTOE. § 65. What is meant by relationship. § 66. Classification of wrongs involved in this chapter. § 67. Doctrines of agency controlling. § 68. Principle of joint liability of principal and. agent § 69. Same— Their joint liability depends upon whether the acts are within scope of employment— Doctrine discussed and illustrated. § 70. Scope of employment continued— Illustrative cases. § 71. Same continued— Acts within authority of servant— Illustra- tive cases. § 72. Same continued 1 — Acts not within scope of employment. § 73. Joint liability where conduct of agent or servant is malicious or willful. § 74. Same continued — Questions, how decided. § 75. Same continued— Kind of damages that may be assessed. § 76. Husband and wife— Joint liability. § 77. Parent and child— Joint liability. § 78. Partnership— Liability for torts. § 79. Partners— Joint liability. § 80. Joint liability of attorney and client. § 81. Joint liability of officer and deputy— Principles of substantive liability. | 82. Same continued— Is there a joint liability? § 83. When the agent follows an independent employment § 65. What is Meant by Relationship. — At the be- ginning of the discussion of the subject of this chap- ter, an explanation of what is meant by relationship, and the reasons for the designation of the chapter is made. Wrongs here treated are those in which the persons concerned sustain some relation of priv- ity, or are brought together by contractual arrange- ment, expressly or impliedly, as distinguished from torts committed by direct active participation treated in another chapter. For example where a servant 121 JOINT LIABILITY OF PERSONS. § 66 acts for his master, or a husband or wife acts for either, in the performance of an act, or where a child acts for his parent, or a partner acts for the firm, and the like, in such relationship the doctrines of prin- cipal and agent form the basis of liability for the wrongs committed by virtue of these relationships. It is said that "one cannot be made a trespasser by relation especially when the act which is supposed to make him such is the act of the party who is not his agent or in any way under his control." 1 The rela- tions existing between those committing torts while acting in concert and the principles to be applied, are widely different from those existing between and governing the responsibility of persons sustaining the contractual relation of principal and agent or mas- ter and servant. § 66. Classification of Wrongs Involved in this Chap- ter. — Torts are either intentional or not intentional. The former class embrace those in which the persons concerned therein are equal, active, and direct par- ticipants, either by acts of design or conspiracy or by ratification or adoption. The principles governing the liability for intentional wrongs have been con- sidered. 54 This chapter treats of the principles of joint liabil- ity, where parties are not all direct, active actors in a wrong, but are brought together by some rela- tionship, such as arises between principal and agent, master and servant, and the like. A master or prin- cipal may, however, be a direct active participant in a wrongful act with his servant, but generally the wrongs arising from this relationship are those where the agent or servant acts for the principal or master, 1 Ward v. Carp River Iron Co., 50 Mich. 522, 15 N. W. 889; Case v. De Goes, 3 Caines, 261; Wickham v. Freeman, 12 Johns. 183. 2 Ante, c. 4. §§ 67,68 JOINT LIABILITY OF PERSONS. 122 and such wrongs, therefore, are generally not of in- tent, though some may be willful and intentional, and if so, they do not come under the doctrine now to be considered. 4 § 67. Doctrines of Agency Controlling.— The rules or principles of law which govern the rights, and deter- mine the liability, of parties in joint wrongs not of in- tent, committed by virtue of relationship, are gener- ally those underlying the relation of principal and agent; and wherever the question of such liability arises it will be solved upon this basis. The same is true of intentional wrongs committed by the agent at the express command or direction of the principal. These rules are numerous and are separately consid- ered. To maintain an action against two or more jointly, the plaintiff must show a joint cause of action. In an action ex delicto, the act complained of must be the joint act of all the defendants, either in fact or in legal intendment and effect. The act of a servant is not the act of the master, even in legal intendment or effect, unless the master previously directs or adopts it. In other cases, he is liable for the acts of his servant,when liable at all, not as if the acts were done by himself, but because the law makes him an- swerable. 8 § 68. Principle of Joint Liability of Principal and Agent is but another phase of the general doctrine of agency. That which one does through another he does himself, the one committing the act, as well as the one for whom it is done, being equally responsible there- for. There can be no division of responsibility. One who authorizes or directs an act must be held for all the results of its commission, and while in some cases 8 Parsons v. Winchell, 5 Cush. 592, 52 Am. Dec. 745. 123 JOINT LIABILITY OF PEKSONS. § 68 it may seem a hardship that an innocent actor, the agent, should also be held, yet the person injured should not be compelled to look beyond the person "who actually commits wrong. The liability is based upon grounds of public policy and upon the theory that the one who has placed the agent in a position of trust and confidence should suffer rather than a stranger. 4 So it would be unreasonable to hold the principal liable for acts which he did not put within the power of the agent to perform, i. e., those beyond the scope of his employment, and hence the principal is exempt from liability for such acts. 5 The agent cannot excuse himself on the ground that his principal is also liable. It is not his con- tract with his principal that exposes him to liability to third persons, but his common-law obligation to use that which he controls, and to do that which he is assigned to do, in such manner as not to injure another. 6 To hold both jointly liable there must be some participation, however slight, by both. But many acts may be committed by the servant with- out rendering the principal liable at all; and again the agent may be guilty of acts of misfeasance with- out the express direction, or even contrary to com- mand, and still the principal be equally liable. The well-settled rule as to the latter phase of this common liability is, that the principal is liable for all acts of misfeasance and malfeasance of his agent 4 Higgins v. Westervliet Turnpike Co., 46 N. Y. 24, 7 Am. Rep. 293; Isaacs v. Third Ave. E. R. Co., 47 N. Y. 123, 7 Am. Rep. 418; Pittsburgh etc. Ry. Co. v. Kirk, 102 Ind. 399, 52 Am. Rep. 675, 1 N. E. 849; Locke v. Stearns, 1 Met. 560, 35 Am. Dec. 382. 5 Little Miami Ry. Co. v. Wetmore, 19 Ohio St. 110, 2 Am. Rep. .373; Golden v. Newbrand, 52 Iowa, 59, 35 Am. Rep. 257, 2 N. W. 537; Quinn v. Power, 87 N. Y. 535, 41 Am. Rep. 392; Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 84 Am. St Rep. 620, 28 South. 823. 6 Baird v. Shipman, 132 111. 16, 22 Am. St. Rep. 504, 23 N. E. 384. $ 68 JOINT LIABILITY OF PERSONS. 124 committed within the general scope of employment. And so zealous is the law of the rights of the injured, that it is considered that the principal is liable for all acts which may be fairly and reasonably inferred from the circumstances and conditions to be within the power of the agent. But few leading cases are cited in support of this fundamental and familiar proposition. 7 The test of liability is whether or not the act in question was done in the prosecution of the master's business, not whether it was within his instructions. 8 The liability of the principal, though he does not au- thorize, justify the act, or participate in it, and even if he disapproves of the acts of his agent when they are within the scope of employment, is not based upon presumed authority, but on the principle already stated, that, having placed it within the power of another acting for him to injure third persons, he should be made to suffer for his acts. 9 The ques- tion, then, always hinges upon the nature of the act, and is one of construction as to the power which may be inferred from authority expressly conferred. If the tort is expressly authorized by the principal, then he is an active participator. The principle is well settled that an agent or ser- vant is responsible to third persons only for injuries which are occasioned by his misfeasance, and not for those occasioned by his nonfeasance. Some confu- sion has arisen among the cases from a failure to 7 Cosgrove v. Ogden, 49 N. T. 255, 10 Am. Rep. 361; Tuel v. Weston, 47 Vt. 634; Johnson v. Barber, 5 Gilm. 425, 50 Am. Dec. 416; Stone v. Cheshire R. R. Co., 19 N. H. 427, 51 Am. Dec. 192; Gass v. Coblens, 43 Mo. 377; Corrigan v. Union Sugar Refinery, 98 Mass. 577, 96 Am. Dec. 685; Ware v. Baratara etc. Canal Co., 15 La. 169, 35 Am. Dec. 189, and note and cases. 8 Cosgrove v. Ogden, 49 N. Y. 255, 10 Am. Rep. 361. » Lee v. Sandy Hill, 40 N. Y. 448. 125 JOINT LIABILITY OF PERSONS. § 68 observe clearly the distinction between nonfeasance and misfeasance. Nonfeasance is the omission of an act which a person ought to do, while misfeasance is the improper doing of an act which a person ought not to do at all. 10 When the personal liability of both master and servant is solved by the doctrines of agency, then arises the question of joining them both in one ac- tion, which pertains more to procedural law. The rule is well settled that they are joint tort-feasors, and that they may both be joined in one action. 11 The courts have not all been clear as to whether the master and servant can be sued jointly in tres- pass for the tort of the servant. It is said that: "The doubt has been as to whether, under the com- mon-law pleading, the master was not liable in tres- pass on the case, and the servant liable in trespass, so that the two could not be joined in the same ac- tion. Under our more rational system of code plead- ing, we have abolished the distinction between tres- pass and trespass on the case, and there is no reason why the two should not be joined in one action. If the plaintiff has a cause of action against one per- son, all he now has to do is to state it plainly and dis- tinctly; if he has a cause of action against two, he is required to do no more. If both the master and servant are liable for the same willful tort of the servant, why, under our system of code pleading, should they not be joined in the same action, although 10 Greenberg v. Whitcomb Lumber Co., 90 Wis. 225, 48 Am. St. Rep. 911, 63 N. W. 93; Bell v. Josselyn, 3 Gray, 309, 63 Am. Dec. 741. n Greenberg v. Whitcomb Lumber Co., 90 Wis. 225, 48 Am. St. Rep. 911, 6 N. W. 93; Central of Georgia Railway Co. v. Brown, 113 Ga. 414, 84 Am. St. Rep. 250, 38 S. E. 989; Wood on Master and Servant, 2d ed., 667; Wright v. Wilcox, 19 Wend. 343, 32 Am. Dec. 507; Phelps v. Wait, 30 N. Y. 78. § 69 JOINT LIABILITY OF PERSONS. 126 at common law one would be liable in case and the other in trespass ? ia The character of the willful act which the servant or agent may commit which will hold the master or principal liable depends upon the variations of the wrongful act, and will include almost any of the torts, excepting those purely personal, as slander. Misfeasance and malfeasance cover a wide field. The most common instances of liability are cases of negli- gence, and it is pretty generally extended to willful trespass to person or property. Where a master employs a servant to do an act which involves the use of force against the person or property of an- other, and the servant, in the course of his employ- ment, uses force in a manner or to an extent unlaw- ful and unjustifiable, both are answerable as tres- passers. 13 The master is liable for the acts of his servant, provided he has intrusted to the servant the duty he is attempting to perform, although the par- ticular act complained of may have been expressly prohibited by the master. 14 § 69. Same — Their Joint Liability Depends Upon Whether the Acts are Within the Scope of Employment- Doctrine Discussed and Illustrated.— The joint liability of principal and agent, or of master and servant, un- der the various conditions and circumstances in which these relations may arise, depends upon the general doctrines of agency, by virtue of which the principal or master is liable for all of the acts of agent or ser- 12 Central of Georgia Railway Co. v. Brown, 113 Ga. 414, 84 Am. St. Rep. 250, 38 S. E. 989. is Central of Georgia Railway Co. v. Brown, 113 Ga. 414, 84 Am. St. Rep. 250, 38 S. E. 989; Holmes v. Wakefield, 12 Allen, 580, 90 Am. Dec. 171; 6 Thompson on Corporations, sec. 7394. 14 Bergman v. Hendrickson, 106 Wis. 434, 80 Am. St. Rep. 47, 82 N. W. 304; Craker v. Chicago etc. Ry. Co., 36 Wis. 657, 17 Am. Rep. 504. 121 JOINT LIABILITY OF PERSONS. § G9 vant which are within the scope of employment. The principal is not liable for all acts done or not done by his agent, but is responsible for all acts of misfeasance or malfeasance within the scope of em- ployment, and the question in each case is determined by the ordinary rules of agency, depending upon whether the acts complained of are properly within the scope of authority, and, if so, both principal and agent are liable; if not, then only the agent is liable. The general rules of law as to the power of an agent must be considered in each case in determining ques- tions of joint liability. Power may be expressed, and yet all such powers as are necessary, proper, and reasonable to carry out the purpose for which the agency is created are incidental to the power con- ferred. The nature and extent of this incidental au- thority oftentimes turns upon nice considerations of actual usage or implications of law, and it is some- times difficult to properly apply the rule. Such power is sometimes determined by inference of law, and in- ference of fact, and sometimes it is a mixed question of both law and fact. 15 But the agent is, as stated, only jointly liable with his principal for acts of mis- feasance or malfeasance, or when doing something which he ought not to have done; for his own non- feasances or omissions of duty he is answerable to his principal and hence is not jointly liable to third persons. 16 So far as concerns the joint liability of the principal and agent, it matters not whether the IB Gilbraith v. Lineberger, 69 N. O. 145; Huntley v. Mathias, 90 N. C. 101, 47 Am. Rep. 516. 16 Henshaw v. Noble, 7 Ohio St. 231; Denny v. Manhattan Co., 2 Denio, 115; Goodloe v. Cincinnati, 4 Ohio, 500, 22 Am. Dec. 764; Labadie v. Hawley, 61 Tex. 177, 48 Am. Rep. 278; Fish v. Dodge, 4 Denio, 317, 47 Am. Dec. 254; Brown v. Dean, 123 Mass. 269; Brown v. Lent, 20 Vt. 533; Guernsey v. Cook, 117 Mass. 548; Reid v. Humber, 49 Ga. 207. Acts of misfeasance: Bell v. Josselyn, 3 Gray, 309, 63 Am. Dec. 741. § 69 JOINT LIABILITY OF PERSONS. 128 character of the conduct of the agent be negligent or willful; so long as it is within the scope of employ- ment, the liability is the same, though there is some conflict among the cases as to whether the principal is liable for the willful or malicious conduct of his agent. The general rule is, that the principal is liable for all acts of malfeasance or misfeasance of an agent in the course of his employment, although the principal does not authorize, justify, or participate in, or even know of, the same, or, knowing, forbids the same. This will embrace acts of fraud, deceit, concealments, mis- representation, 17 such as fraud in the sale of land, 18 acts of negligence within the scope of employment, 1 " and for acts of trespass to person, as where a conduc- tor on a railway wrongfully ejects a passenger, 20 as well as for trespass to personal property. 21 But if an agent commits an independent fraud on his own 17 Fifth Avenue Bank v. Forty-second Street etc. Ry. Co., 137 N. Y. 231, 33 Am. St. Rep. 712, 33 N. E. 378; Busch v. Wilcox, 82 Mich. 336, 21 Am. St. Rep. 563, 47 N. W. 328; Griswold v. Gebbie, 12G Pa. St. 353, 12 Am. St. Rep. 878, 17 Atl. 673; Locke v. Stearns, 1 Met. 500, 35 Am. Dec. 383; White v. Sawyer, 16 Gray, 586, 589; Du Souchet v. Dutcher, 113 Ind. 249, 15 N. E. 459; Jarvis v. Man- hattan Beach Co., 148 N. Y. 652, 51 Am. St. Rep. 727, 43 N. E. 68; Fairchild v. McMah'on, 139 N. Y. 290, 36 Am. St Rep. 701, 34 N. B. 779; Lynn v. Baltimore etc. R. R. Co., 60 Md. 404, 45 Am. Rep. 741. See note to 54 Am. Dec. 748. 18 Lothrop v. Adams, 133 Mass. 471, 43 Am. Rep. 528; Haskell v. Starbird, 152 Mass. 117, 23 Am. St. Rep. 809, 25 N. E. 14; Griswold v. Gebbie, 126 Pa. St. 353, 12 Am. St. Rep. 878, 17 Atl. 673; Davis v. Lyon, 36 Minn. 427, 31 N. W. 688; Roberts v. French, 153 Mass. 60, 25 Am. St. Rep. 611, 26 N. E. 416. 19 Johnson v. Barber, 5 Gilm. 425, 50 Am. Dec. 416; Henshaw v. Noble, 7 Ohio St. 232; Pickens v. Decker, 21 Ohio St. 212, 8 Am. Rep. 55; Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122, 7 Am. Rep. 418. 20 Moore v. Fitchburg R. R. Co., 4 Gray, 465, 64 Am. Dec. 83; Central of Georgia Railway Co. v. Brown, 113 Ga. 414, 84 Am. St. Rep. 250, 38 S. E. 989. 21 Singer Mfg. Co. v. Stephens, 53 S. W. 525, 21 Ky. Law Rep. 946. 129 JOINT LIABILITY OF PERSONS. § 69 account, this is considered to be beyond the scope of his employment, and not as a means of performing the business intrusted to him, and therefore the prin- cipal or master is not liable in such cases. 152 Nor is a master liable for an independent tortious act of his servant, committed with his machinery not done in his business nor in the course of his employment. 52 * So where an act though done by agent or servant while engaged in the work of the master is not done as a means, or for the purpose, of performing the work, the servant or agent only, and not both, is liable. 24 So this doctrine is illustrated in a case where a servant who is employed to guard property and authorized to arrest and detain any- one who interferes with it, acts on his own respon- sibility in shooting and killing one who is law- fully on the premises, the master being liable in such case. 25 So where a conductor Shoots one whom he suspects of having broken into a railway car, but who is standing near by doing nothing wrong. aB Again, a street-car conductor is held to have no power, no implied authority, to arrest a passenger for passing alleged counterfeit coin upon him for his fare. 27 The converse of the rule above stated is well set- tled, that when a servant acts without any reference to the service for which he is employed, and not for 22 Allen v. South Boston R. R. Co., 150 Mass. 200, 15 Am. St. Rep. 185, 22 N. E. 917; Gunster v. Scranton etc. P. Co., 181 Pa. St. 327, 59 Am. St. Rep. 650, 37 Atl. 550. 23 Canton Cotton Warehouse Co. v. Pool, 78 Miss. 147, 84 Am. St. Rep. 620, 28 South. 823. 24 Bowler v. O'Connell, 162 Mass. 319, 44 Am. St. Rep. 359, 38 N. E. 498. 25 Davis v. Houghtellin, 33 Neb. 582, 50 N. W. 765. 26 Candiff v. Louisville etc. Ry. Co., 42 La. Ann. 477, 7 South. 601. 27 Laffitte v. New Orleans etc. Ry. Co., 43 La. Ann. 34, 8 South. 701. Torts, Vol. 1—9 § 70 JOINT LIABILITY OP PERSONS. 130 f the purpose of performing the work of his employer, but to effect some independent purpose of his own, the master is not responsible in that case for either the act or omission of the servant. 28 § 70. Scope of Employment Continued— Illustrative Cases. — The foregoing doctrine cannot be pursued to great extent in this work by furnishing illustra- tive cases, a few instances only being given. The powers and duties of railway employees are sharply denned and prescribed, and are generally well known and understood. For example, a conductor or brake- man upon a freight train has no implied authority to invite a passenger to ride from one point to an- other, and hence cannot thus bind the company. 545 * A driver of a street-car has been held to have im- plied authority to invite persons to ride, and this even though the person is a gratuitous passenger, and if injured by the driver negligently and suddenly start- ing the car, the master is liable. 30 An engineer in charge of a switching engine renders the company liable by removing trespassers on the engine, while it is running at a high rate of speed, in such a negli- gent and reckless manner as to injure them. 31 A street-car conductor renders the company liable for pushing a person off of a car in a rough manner, when he is attempting to enter the same. 32 And so a clerk 28 Stephenson v. Southern Pacific Co., 93 Cal. 558, 27 Am. St. Rep. 223, 29 Pac. 234; Howe v. Newmarch, 12 Allen, 49; Snyder v. Hannibal etc. R. R. Co., 60 Mo. 413; Mott v. Consumers' Ice Co., 73 N. Y. 543; Rounds v. Delaware etc. R. R. Co., 64 N. Y. 129, 21 Am. Rep. 597; Aycrigg v. New York etc. R. R. Co., 30 N. J. L. 460; Cosgrove v. Ogden, 49 N. Y. 257, 10 Am. Rep. 361; Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 110, 2 Am. Rep. 373; McClung v. Dearborne, 134 Pa. St. 396, 19 Am. St. Rep. 708, 19 Atl. 698. 29 Sndyer v. Hannibal etc. R. R. Co., 60 Mo. 413; Eaton v. R. R. Co., 13 Am. Law Reg. 665. 30 Wilton v. Mid wound or inflict a great bodily injury; 117 nor can an assault upon one who comes onto premises by invitation be justified, if the conduct of the person assaulted be occasioned by the owner's abuse. 118 The owner may himself be justified in resorting to the use of a deadly weapon where the trespasser uses a similar weapon. 119 Even throwing a stick at a trespasser may constitute an assault, 120 though it has been held in one state that the owner may strike him with a stick if he is unable to make the defense effectual by merely laying hands on him. 121 Exhibiting a gun in an angry and threat- ening manner, without excuse or occasion, is not jus- tified. iaa An intruder, or one who conducts him- 114 State v. Dooley, 121 Mo. 591, 26 S. W. 558; State v. Forsythe, 89 Mo. 667; Simpson v. State, 59 Ala. 1, 31 Am. Rep. 1. us Carroll v. State, 23 Ala. 228, 58 Am. Dec. 282. See, also, 82 Am. Dec. 675, note. lis Shain v. Markham, 4 J. J. Marsh. 578, 20 Am. Dec. 232; 2 Hawk. P. C, c. 23, sec. 23; Stachlin v. Destrehan, 2 La. Ann. 1019. 117 Id. lis Watrous v. Steel, 4 Vt. 629, 24 Am. Dec. 648. lis People v. Dann, 53 Mich. 490, 51 Am. Rep. 151, 19 N. W. 159. 120 Talmage v. Smith, 101 Mich. 370, 45 Am. St Rep. 414, 59 N. W. 656. 121 State v. Burke, 82 N. C. 551. ' 122 State v. Martin, 52 Mo. App. 609. 463 ASSAULT AND BATTERY. § 211 self in an improper manner, may, on refusal to leave be expelled by the use of such force as may be reasonably necessary. 123 The law justifies the use of no greater force than is necessary in the exercise of a reasonable and proper judgment to prevent the consummation of the injury. 124 An assault upon an old man who, prompted by a passion for flowers, goes into a garden to pick flowers, without notice or warning, cannot be justified. 125 § 211. Action for Injury in Mutual Combat.— The or- dinary rule is that an injury cannot be done to a per- son who by his own acts consents thereto, but an individual can never consent to a breach of the peace. Prize fighting, boxing matches, and encounters of that sort tend to breaches of the peace, and are un- lawful even when entered into by agreement and without anger or mutual ill-will. 126 So one cannot consent to assault and battery by voluntarily enter- ing into a fight, and if one party license another to beat him, such license is void. 127 The state is in- terested in maintaining peace and quiet, and no agreement can be made which will deprive the state of its right to preserve the peace. Consent to an in- jury is always regarded as a complete defense when- ever redress therefor is sought by the party injured, but this is limited to rights in which only the indi- viduals engaged were concerned, and the doctrine 123 Canfield v. Chicago etc. Ry. Co., 59 Mo. App. 354; Brebaeh v. Johnson, 62 111. App. 131. 124 State v. Martin, 52 Mo. App. 609; Harrison v. Harrison, 43 Vt. 417; Drew v. Comstock, 57 Mich. 176, 23 N. W. 721. 125 Chappell v. Schmidt, 104 Cal. 511, 38 Pac. 892. 126 Fost. C. L. 260; 2 Greenleaf on Evidence, sec. 85; 1 Stephens' Nisi Prius, 211; Commonwealth v. Collberg, 119 Mass. 350, 20 Am. Rep. 328. 127 Matthew v. Ollerton, Comb. 218. § 211 PERSONAL SECURITY. 464 expressed by the maxim, Volenti non fit injuria, applies and governs such cases. But this maxim or doctrine does not apply to cases where the public is inter- ested, and it has been held from the earliest times that one may recover in a civil action for assault and battery, although he agreed to fight with his adversary; that such agreement or consent is not a bar to the action. 128 The fact, however, that the parties fought by agreement may be shown for the purpose of mitigating the damages, 129 and this may be shown under a general denial without being spe- cially pleaded. 130 It seems wrong on principle to allow one to recover for an injury which would not have oc- curred but for the voluntary acts of the injured, and this principle has been followed in one state. 131 A female has the right to maintain an action for an as- sault and battery committed by throwing her down and ravishing her, even though she does not resist the sexual intercourse. 132 128 Bull. N. P. 16; Matthew v. Ollerton, Comb. 218; Bell v. Hansley, 48 N. C. 131; Stout v. Wren, 8 N. C. 420, 9 Am. Dec. 653; Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230; Shay v. Thomp- son, 59 Wis. 540, 48 Am. Rep. 538; Barholt v. Wright, 45 Ohio St. 177, 4 Am. St. Rep. 535, 12 N. E. 185; Commonwealth v. Collberg, 119 Mass. 350, 20 Am. Rep. 328; Regina v. Lewis, 1 Car. & K. 419; Rex v. Perkinsi, 4 Car. & P. 537. 129 Id. 130 Barholt v. Wright, 45 Ohio St. 177, 4 Am. St. Rep. 535, 12 N. E. 185. 131 Galbraith v. Fleming, 60 Mich. 403, 27 N. W. 581. 132 Dean v. Raplee, 75 Hun, 389, 27 N. Y. Supp. 438. 465 INJURY TO PERSONAL LIBERTY. CHAPTER XVII. INJURY TO CONSTITUTIONAL EIGHT OF PER- SONAL LIBERTY. I. BY FALSE IMPRISONMENT. II. RESTRAINT OF PERSONS FOR THE PEACE, SECURITY OR HEALTH OF THE COMMUNITY. III. MALICIOUS ABUSE OF PROCESS. I. FALSE IMPRISONMENT. I 212. False imprisonment— Defined. I 213. Nature of the detention— Place. i 214. Nature of the detention— Manual restraint not necessary. § 215. The arrest. I 216. By whom restraint imposed or arrest made. $ 217. Same continued — Arrest by private person. S 218. When others than arresting officer liable. I 219. Liability of private citizen who aids officer. § 220. Agent procuring unlawful arrest— Liability of principal. $ 221. Attorney's liability for false imprisonment. % 222. What makes an imprisonment unlawful. § 223. Arrest must be upon probable cause. i 224. Arrest under warrant. i 225. Duty as to obtaining warrant when arrest made without— Detention for unreasonable time. | 226. Joint liability of arresting officers, jailers, etc. § 227. Distinction between false imprisonment and malicious prose- cution. i 228. Judicial officers— Their liability. | 229. Measure of damages. II. RESTRAINT OF PERSONS FOR PEACE AND SECURITY OF HEALTH OF THE COMMUNITY. •§ 230. Wrongful confinement in asylum or hospital. § 231. Restraint of persons with contagious disease. § 232. Confinement of inebriates. III. MALICIOUS ABUSE OF PROCESS. { 233. Malicious abuse of process— Nature of wrong. | 234. Same continued — Illustrative cases. S 235. Same continued— Who liable. Torts, Vol. 1—30 § 212 FALSE IMPRISONMENT. 466 § 212. False Imprisonment— Defined.— False impris- onment is an injury to the right of personal liberty, and consists in the unlawful restraint of a person against his will, either with or without process. It is a trespass against the person with violence either actual or implied. At common law the act was pun- ished criminally. The two essential elements neces- sary to constitute the offense are: 1. The detention of the person; and 2. The unlawfulness of the de- tention. 1 "False imprisonment is the unlawful re- straint of a person contrary to his will. But two things are requisite, viz., detention of the person, and unlawfulness of such detention. Malice is not ma- terial except in aggravation of damages. Nor is prob- able cause of guilt on the part of the party impris- oned, except as it may be rendered so by the provi- sions .... of the code. If the imprisonment is un- der legal process, but the prosecution has been com- menced and carried on maliciously and without prob- able cause, terminating in the discharge of the de- fendant, it is malicious prosecution, and not false im- prisonment. The action for damages for false im- prisonment is in trespass; for malicious prosecution, in case." 2 "False imprisonment is necessarily a wrongful interference with the personal liberty of an individual. The wrong of false imprisonment may be committed by words alone, or by acts alone, or by both, or by merely operating on the will of the individual, or by personal violence, or by both. It is not necessary that the individual should be confined within a prison, or within walls, or that he be assaulted or even touched. It is not necessary that any injury 1 For definitions, see Rich v. Mclnerny, 103 Ala. 345, 49 Am. St Rep. 32, 15 South. 663; Comer v. Knowles, 17 Kan. 441. 2 Head, J., in Rich v. Mclnerny, 103 Ala. 345. 49 Am. St. Rep. 32, 15 South. 663 (trespass to person); Burns v. Erben, 40 N. Y. 463. 467 INJURY TO PERSONAL LIBERTY. § 213 should be done to the individual's person, or to his character or reputation. Nor is it necessary that the "wrongful act be committed with malice, or ill- will, or even with the slightest wrongful intention. Nor is it necessary that the act should be done under color of any legal or judicial proceeding. All that is necessary is that the individual be restrained of his liberty without any sufficient legal cause therefor, by words or acts which he fears to disregard." 3 § 213. Nature of the Detention— Place.— it is well understood that any detention, if unlawful, is suffi- cient to constitute false imprisonment. It is not necessary that the person detained should be con- fined in a prison or within walls. All that is essen- tial is that the individual be restrained of his liberty without any legal cause therefor. 4 The place of de- tention is immaterial. It may be behind prison walls, barred doors and windows, 5 or in a private house, or business block, 6 as where a clerk goes to a bank to have some notes redeemed, and while counting money the door of the bank is locked, it being closing time, and the bank refuses to permit the clerk to go away for half an hour. 7 Or wrong- fully detaining one suspected of shoplifting in a store may be sufficient restraint to constitute false impris- onment. So it is sufficient detention where one is locked in a room, and by threats of violence is com- 3 Comer v. Knowles, 17 Kan. 441. Neither malice nor want of probable cause are necessary elements: Boeger v. Langenberg, 97 Mo. 390, 10 Am. St Rep. 322, 11 S. W. 223. 4 Comer v. Knowles, 17 Kan. 441. See 54 Am. Dec. 258, note; 67 Am. St. Rep. 408, note. 6 Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250. 6 Id.; Woodward v. Washburn, 3 Denio, 369; Hilderbrand v. Mc- Crum, 101 Ind. 61. 7 Woodward v. Washburn, 3 Denio, 369. § 214 FALSE IMPRISONMENT. 468 pelled to confess to a breach of promise of marriage. 8 The doors need not even be locked, it being enough if some one stands at the door and prevents an exit. 9 It is an unlawful detention if the restraint be upon the streets. 10 It is a case of unlawful restraint where a priest sends persons after one who has charged him with immoral conduct, and upon reach- ing the house of the priest is compelled, in fear of bodily injury, to retract the charge. 11, § 214. Nature of Detention— Manual Restraint not Necessary. — As previously stated, it is not necessary to constitute unlawful restraint or detention that there should be an actual arrest, and however the detention be accomplished, whether by or without an arrest, it is not essential that there should be a manual touching of the body of the person to make it an unlawful restraint. 12 A demonstration of phy- sical violence, which to all appearances can only be avoided by submission, operates as effectually, if sub- mitted to, as a forcible arrest. 13 "The wrong may be committed by words alone, or by acts alone, or by both, and by merely operating on the will of the individual or by personal violence, or by both." 14 Words, gestures, or any movement that effects re- straint are sufficient. 15 Thus, where a tax assessor, 8 Hilderbrand v. McCrum, 101 Ind. 61. » Moore v. Thompson, 92 Mich. 503, 52 N. W. 1000. 10 Hawk v. Ridgway, 33 111. 473; Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; People v. Wheeler, 73 Cal. 252, 14 Pac. 796; Comer v. Knowles, 17 Kan. 439. li Grace v. Dempsey, 75 Wis. 313, 43 N. W. 1127. 12 Bissell v. Gold, 1 Wend. 210, 19 Am. Dec. 480; Brushaber v. Stegeman. 22 Mich. 267; Moore v. Thompson, 92 Mich. 503, 52 N. W. 1000; Josselyn v. McAllister, 25 Mich. 45; Ahern v. Collins, 39 Mo. 145; Haskins v. Young, 19 N. C. 527, 31 Am. Dec. 426. 13 Brushaber v. Stegeman, 22 Mich. 267. 14 Comer v. Knowles, 17 Kan. 439. is Pike v. Hannon, 9 N. H. 491; Maner v. State, 8 Tex. App. 361. 469 INJURY TO PERSONAL, LIBERTY. § 214 to compel the payment of a tax, says that he arrests the property owner, 16 or where one obeys officers of the law, submitting to their orders without being touched, 17 or where one during a voluntary appear- ance before a magistrate is informed of the issuance of a warrant for his arrest, and answers that he sub- mits, 18 there is sufficient restraint to lay the founda- tion for false imprisonment. Although manual seizure is not necessary, there must be some sort of personal coercion; and where an officer merely informs a person of a warrant against him, but neither takes him into custody nor deprives him of his liberty, 19 or where one of his own volition remains in a prison yard, though at liberty to depart if he desires, 20 there is no unlawful restraint. The imprisonment must also be against the will of the one complaining; for if he goes willingly, or of his own accord, 21 or if he is sent to jail at his own request, 22 there is no detention. Sufficient detention is shown where one is accused of a crime, as larceny, and is informed that an officer will arrest her if the stolen articles are not produced, and as she attempts to pass through a door, her accuser stands between her and a closed door with his hand upon the door knob, and the party is then taken in a bus to her house, and there a search is made. 23 It is not jus- 16 Pike v. Hanson, 9 N. H. 491. 17 Ahern v. Collins, 39 Mo. 145; Voorhees v. Leonard, 1 Thomp. & C. 148. 18 Haskins v. Young, 19 N. O. 527, 31 Am. Dec. 426. 19 Hill v. Taylor, 50 Mich. 549, 15 N. W. 899. 20 Kirk v. Garrett, 84 Md. 383, 35 Atl. 1089. 21 Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; State v. Lunsford, 81 N. C. 528. 22 Ellis v. Cleveland, 54 Vt. 437. 23 Moore v. Thompson, 92 Mich. 498, 52 N. W. 1000. § 215 FALSE IMPRISONMENT. 470 tifiable to arrest and detain a person who has re- ceived overpayment on a check from a bank, merely to compel repayment, and not for the purpose of taking him before the magistrate. Such an arrest and detention constitutes false imprisonment. 24 § 215. The Arrest. — An arrest signifies the re- straint of a man's person. It may be considered as the beginning of an imprisonment. Mere words alone will not constitute an arrest, unless, of course, the person submits. There must in all instances be circumstances indicating that the party is under re- straint and within the power of the officer. Violence is unnecessary to effect an arrest if it can be made without. It was the rule at common law, and so with us under many decisions, that a sheriff, consta- ble, or peace officer, in the absence of any express statutory provision, may arrest, without process, upon reasonable suspicion, one who is charged with the commission of a felony, and detain him until a warrant can be obtained. 25 The matter is now gen- erally regulated by statute in the states, which should be consulted. The rule generally prevailing in the states is that arrests may be made without warrant in felonies upon reasonable suspicion, with- out seeing the crime committed. But no arrest can be made without a warrant in cases of misdemeanors unless the person arrested is found in the actual com- mission of the crime. 24 Bergeron v. Reyton, 106 Wis. 377, 80 Am. St. Rep. 33, 82 N. W. 291. 25 Rohan v. Sawin, 5 Cush. 281; Wade v. Chaffee, 8 R. I. 224, 5 Am. Rep. 572; Doering v. State, 49 Ind. 56, 19 Am. Rep. 669; Holley v. Mix, 3 Wend. 350, 20 Am. Dec. 702; Eanes v. State, 6 Humph. 53, 44 Am. Dec. 289; Burns v. Erben, 40 N. Y. 463; Filer v. Smith, 96 Mich. 347, 35 Am. St. Rep. 603, 55 N. W. 999; Shanley v. Wells, 71 111. 78; Diers v. Mallon, 46 Neb. 121, 50 Am. St. Rep. 598, 64 N. W. 722; Ballard v. State, 43 Ohio St. 340, 1 N. E. 76; McCarthy v. De Armit, 99 Pa. St. 63. 471 INJURY TO PERSONAL LIBERTY. § 216 A very important feature essential when an arrest is made upon a warrant, to relieve the party com- plaining from a charge of false imprisonment, is that the affidavit must be adequate to confer jurisdiction upon the court. If it is defective in respect to the jurisdictional facts required to bring the case within the statute providing for the arrest, an action will lie against the one who secures the arrest upon such an affidavit. 26 An imprisonment, however, resulting from an arrest under a valid warrant is not a false imprisonment. 27 ^ § 21 6. By Whom Restraint Imposed or Arrest Made. In general it may be said that any restraint upon one'® liberty by another, unless for some cause which the law recognizes as adequate, w, a false imprison- ment. The question then is, What causes does the law regard as sufficient to warrant the violation of one's right to liberty? Here is found a difference in respect to who is the restraining party, the law al- lowing a different standard for its own officers than for a private citizen. A private citizen can only de- prive another of his liberty in case a felony has actu- ally been committed, 28 while an officer may do so if he has reasonable ground to believe that one has 26 Fkumoto v. Marsh, 130 Cal. 66, 80 Am. St. Rep. 73, 62 Pac. 303, 509. 27 Page v. Citizens' Banking Co., Ill Ga. 73, 78 Am. St. Rep. 144, 36 S. E. 418. 28 Morley v. Chase, 143 Mass. 396, 9 N. E. 767; McCarthy v. De Armit, 99 Pa. St. 63; Commonwealth v. Carey, 12 Cush. 246; Lynch v. Metropolitan Elevated R. R. Co., 90 N. Y. 77, 43 Am. Rep. 141; Kennedy v. State, 107 Ind. 144, 57 Am. Rep. 99, 6 N. E. 305; Doughty v. State, 33 Tex. 1; Brooks v. Commonwealth, 61 Pa. St. 352, 100 Am. Dec. 645; Bergeron v. Reyton, 106 Wis. 377, 80 Am. St. Rep. 33, 82 N. W. 291; Bacon v. Bacon, 76 Miss. 458, 24 South. 968. I 217 FALSE IMPRISONMENT. 4712 been committed. 29 Both the private citizen and the officer must have reasonable grounds to believe that the one charged is the guilty person. 30 A peculiar case arose in Pennsylvania, where it was sought to hold a railway company for false imprisonment be- cause its employees removed a boy seventeen years old, who had the front part of his foot crushed under the wheels of a freight train, to a hospital, where his foot was amputated. The circumstances called for great haste, and the court considered that one who endeavors to assist his neighbor who is in great danger and distress should not be liable, and that the company could not be held for the acts of its em- ployees, because not within the scope of their employ- ment. 31 § 21 7. Same Continued— Arrest by Private Person.— That all persons who commit a felony shall be appre- hended, and that no person shall be wrongfully de- prived of his liberty, is of equal importance before the law. It will be conceded that the right of per- sonal security and immunity from unlawful arrest and detention is a sacred constitutional right; and yet the public welfare requires that all who commit felonies should be arrested and punished to such an extent that the law encourages everyone, private citizens as well as officers, to keep a sharp lookout for the apprehension of felons by holding them ex- empt from responsibility for an arrest or prosecu- tion, although the party charged turns out not to be guilty, if the arrest be made upon probable cause 29 Rohan v. Sawin, 5 Cush. 281; Commonwealth v. Carey, 12 Cush. 246; Burns v. Erben, 40 N. T. 463; Holley v. Mix, 3 Wend. 350, 20 Am. Dec. 702; Filer v. Smith, 96 Mich. 347, 35 Am. St. Rep. 603, 55 N. W. 999. 30 Id. 81 Ollet v. Pittsburg etc. Ry. Co., 201 Pa. St. 361, 50 Atl. 1011. 473 INJURY TO PERSONAL LIBERTY. § 218 and in good faith. It must not be upon mere sus- picion. The rule governing the duty and responsi- bility of private persons making arrests is thus stated: "A private person has a right to arrest a man on suspicion of felony without a warrant; but if he does so, and it turns out that the wrong man is impris- oned, he must be prepared to show, in justification: 1. That a felony has been committed; and 2. That the circumstances under which he acted were such that any reasonable person, acting without passion or prejudice, would have fairly suspected that the plain- tiff committed it or was implicated in it." 32 A pri- vate citizen does not have a right to make an arrest for a mere misdemeanor, and hence he would be lia- ble for false imprisonment if he did so. 33 § 218. When Others than Arresting Officer Liable. — Besides those who actually make the arrest or cause the imprisonment, others may become liable for false imprisonment in various ways by indirectly partici- pating therein. In many instances officers make ar- rests upon information furnished them by private citizens, or at the instigation of private citizens. Such citizens may or may not render themselves lia- ble jointly with the officer, where the arrest and de- tention turns out to be wrongful. It is perfectly clear that if the private citizen merely calls the at- 32 Maliniemi v. Gronlund, 92 Mich. 222, 31 Am. St. Rep. 576, 52 N. W. 627; Brooks v. Commonwealth, 61 Pa. St. 352, 100 Am. Dec. 645; Brockway v. Crawford, 3 Jones, 433, 67 Am. Dec. 250; Eanes v. State, 6 Humph. 53, 44 Am. Dec. 289; State v. Shelton, 79 N. C. 607; Holley v. Mix, 3 Wend. 350, 20 Am. Dec. 702; Morley v. Chase, 143 Mass. 396, 9 N. E. 767; Long v. State, 12 Ga. 293. 33 Phillips v. Trull, 11 Johns. 486; Lynch v. Metropolitan Elevated Ry. Co., 90 N. Y. 77, 43 Am. Rep. 141; Parker v. Maine Cent. R. R. Co., 92 Me. 399, 69 Am. St. Rep. 513, 42 Atl. 800. § 218 FALSE IMPRISONMENT. 474 tention of an officer to a supposed commission of a crime, without other direction, and the officer ar- rests the offender on his own responsibility for what he assumes to be an offense committed in his pres- ence and the magistrate assumes the responsibility, the person who does nothing more than communicate the facts to the officer does not render himself liable for false imprisonment. 34 One who merely states to an officer what he knows of a supposed offense, even though he expresses the opinion that there is ground for an arrest, but without making any charge or re- questing an arrest, does not thereby make himself liable for a resulting wrongful arrest. 35 Besides the officer, the one who procures or causes the arrest, the judicial officer issuing the process, and one whose agent is the moving cause in the arrest may all become liable. In general, it may be said that whoever directs, procures, or authorizes the ar- rest of another, when as to him there was no cause deemed adequate in the law, will be liable. Thus he will be liable for inducing an arrest without war- rant for a felony or misdemeanor committed out of sight of the officer, unless he can show his charge to be well founded — that is, unless he can prove that the crime was committed, and he has reasonable ground to suspect that the person arrested is the guilty party. 36 It is well settled law that one who 34 Taaffe v. Slevln, 11 Mo. App. 507; Lark v. Band, 4 Mo. App. 186; Hopkins v. Crowe, 7 Car. & P. 373; Hewitt v. Newburger, 66 Hun, 230, 20 N. Y. Supp. 913; Booth v. Kurrus, 55 N. J. L. 370, 26 Atl. 1013; Nowak v. Waller, 56 Hun, 647, 10 N. Y. Supp. 199; Barker v. Stetson, 7 Gray, 53, 66 Am. Dec. 457; Bartlett v. Hawley, 38 Minn. 308, 37 N. W. 580; Abbott v. Kimball, 19 Vt. 551, 47 Am. Rep. 708. 35 Burns v. Erben, 1 Robt. 555; Veneman v. Jones, 118 Ind. 41, 10 Am. St. Rep. 100, 20 N. E. 644. 36 Venneman v. Jones, 118 Ind. 41, 10 Am. St. Rep. 100, 20 N. B. 644; Taaffe v. Slevin, 11 Mo. App. 507; Ross v. Leggett, 61 Mich. 445, 1 Am. St. Rep. 608, 28 N. W. 695; McGarrahan v. La vers, 15 475 INJURY TO PERSONAL LIBERTY. § 218 procures an arrest without any legal warrant, au- thority, or justifiable or reasonable cause, is liable for false imprisonment, although he is not present when the arrest is made.* 7 Thus, a person who, in addition to stating the facts to a magistrate, does other acts furthering the arrest, such as offering to furnish the conveyance, furnishing information to the officer as to the whereabouts of the accused, renders himself liable. 38 Even pointing out the person ar- rested at the request of the officer has been held suffi- cient to hold one liable. 39 But a railroad company was held not liable for the false arrest of a passen- ger, where the conductor merely pointed him out to the sheriff. 40 Again, if one causes a warrant to be issued which is void on its face, he is liable for an arrest thereunder; 41 and if the process be voidable R. I. 302, 3 Atl. 592; Farnam v. Feeley, 56 N. Y. 451; Reynolds v. Price, 22 Ky. Law Rep. 5, 56 S. W. 502. 37 Fkumoto v. Marsh, 130 Cal. 66, 80 Am. St. Rep. 73, 62 Pac. 303, 509; Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; Hauss v. Kohlar, 25 Kan. 640; Chapman v. Dyett, 11 Wend. 31, 25 Am. Dec. 598; Gibbs v. Randlett, 58 N. H. 407; Gee v. Patterson, 63 Me. 49; Vaughn v. Congdon, 56 Vt. Ill, 48 Am. Rep. 758; Hoffin v. Varila, 8 Tex. Civ. App. 417, 27 S. W. 956; Grohmann v. Kirschman, 168 Pa. St. 189, 32 Atl. 32; Winn v. Hobson, 54 N. Y. Super. Ct. 330; Newby v. Gunn, 74 Tex. 455, 12 S. W. 67. Good faith and want of malice not a defense: Palmer v. Maine Cent. etc. R. Co., 92 Me. 399, 69 Am. St. Rep. 513, 42 Atl. 800; Grumon v. Raymond, 1 Conn. 40, 6 Am. Dec. 200; Flack v. Harrington, Breese (111.), 213, 12 Am. Dec. 170; Gelzenleuchter v. Niemeyer, 64 Wis. 316, 54 Am. Rep. 616, 25 N. W. 442. 38 Hewitt v. Newburger, 141 N. Y. 538, 36 N. E. 593; Frazier v. Turner, 76 Wis. 562, 45 N. W. 411; McGarrahan v. La vers, 15 R. I. 302, 3 Atl. 592. 39 Coffin v. Verila, 8 Tex. Civ. App. 417, 27 S. W. 956. 40 Owens v. Washington etc. R. R. Co., 126 N. C. 139, 78 Am. St. Rep. 642, 35 S. E. 259. 41 Wachsmuth v. Merchants' Nat. Bank, 96 Mich. 426, 56 N. W. 9; Hewitt v. Newburger, 141 N. Y. 538, 36 N. E. 593; Miller v. Adams, 52 N. Y. 409; Painter v. Ives, 4 Neb. 122. § 219 FALSE IMPRISONMENT. 470 for irregularity and is subsequently declared void, he is responsible for any act done under it 42 § 219. Liability of Private Citizen Who Aids Officer.— It is an old established and familiar rule handed down to us by the common law that an officer has the right to call upon private citizens to aid him in mak- ing an arrest; he may not only call upon citizens to aid him, but he may command them to assist him, 43 a refusal so to do being punishable. 44 It has also been held, but without sound reason, that if the offi- cer exceeds his authority, or if he has not sufficient authority, the person called upon to assist him stands upon an equal footing, so far as concerns their lia- bility. It is said that whenever an officer "has power to execute process in a particular manner, his au- thority is a justification to himself and all who come to his aid; but if his authority is not sufficient to justify him, neither can it justify those who aid him. He has no power to command others to do an unlaw- ful act; they are not bound to obey, neither by the, common law nor the statute; and if they do obey it is at their peril. They are bound to obey when his acts are lawful, otherwise not. The only hardship iii the case is, they are bound to know the law. That obligation is universal; ignorance is no excuse for anyone." 45 Such a doctrine being harsh and unjust, 42 Day v. Bach,, 87 N. Y. 60; Chapman v. Dyett, 11 Wend. 31, 25 Am. Dec. 598; Reynolds v. Harris, 14 Cal. 667, 76 Am. Dec. 459; Kissock v. Grant, 34 Barb. 144; Bryan v. Congdon, 86 Fed. 221; Fischer v. Langheim, 103 N. Y. 84, 8 N. E. 251. 4S Bacon's Abridgment, tit. "Sheriff," note 2; Regina v. Phelps, Cromp. & M. 180; Burdett v. Colmon, 14 East, 163; Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253. See note, 61 Am. Dec. 154, and cases. 44 Coyles v. Hurtin, 10 Johns. 85; State v. Deniston, 6 Blackf. 277. See 44 Am. St Rep. 137, note. 45 Mitchell v. State, 12 Ark. 50, 54 Am. Dec. 253. Along same line, Batchelder v. Currier, 45 N. H. 460. 477 INJURY TO PERSONAL LIBERTY. § 219 a contrary rule of exemption from liability on the part of the one called upon to assist prevails. In- deed, it was held at common law that those who obey the command of the sheriff in arresting criminals will be thereby justified, though the sheriff be act- ing without authority. 46 There is a difference with respect to civil and criminal matters. Generally, in this country statutes have been passed in the vari- ous states authorizing sheriffs and other arresting officers to require the aid of others in arresting per- sons accused of crime, which provide for punishment of any who refuse such assistance. 47 A person so called upon by an arresting officer, whom he knows to be an officer, is protected by the call from any liability on account of a resulting illegal arrest or imprisonment. "The officer may not be acting le- gally, and therefore a trespasser; but the person as- sisting him, at his request or command, and who re- lies upon his official character and call, is protected by the law, and must necessarily be, against suits for trespass and false imprisonment, if in his acts he confines himself to the order and direction of the sheriff." 48 It has been contended that such person should ascertain, at his peril, whether the officer has a proper warrant, or whether the offense charged 46 Hamm. N. P. 63-65. See Brunskill v. Robertson, 9 Ad. & E. 840; Morgans v. Bridges, 1 Barn. & Aid. 652. 47 For example, see Vt. Comp. Stats., c. 13, sec. 11; Howell's Mich. Stats., sees. 591, 9250. 48 Firestone v. Rice, 71 Mich. 377, 15 Am. St. Rep. 266, 38 N. W. 885; McMahan v. Green, 34 Vt 69, 80 Am. Dec. 665; Hooker v. Smith, 19 Vt. 151, 47 Am. Dec. 679; Reed v. Rice, 2 J. J. Marsh. 44, 19 Am. Dec. 122; Forrest v. Leavitt, 52 N. H. 481; Tryon v. Pin- gree, 67 Am. St. Rep. 421, note; citing Payne v. Green, 10 Smedes & M. 507; Jennings v. Carter, 2 Wend. 446, 20 Am. Dec. 635; Coyles v. Hurtin, 10 Johns. 85; Goodwine v. Stephens, 63 Ind. 112; Kirbie v. State, 5 Tex. App. 60; Main v. McCarty, 15 111. 442; State v. James, 80 N. O. 370. § 220 FALSE IMPRISONMENT. 47S against the person to be arrested is a felony, or that he should not act until he is satisfied that the officer is acting legally. This contention has been answered by the courts in the negative. It is said that it is enough that he is called upon by a known officer, that the nature of the case requires that there should be no delay. If he were allowed to do this, the object of the law would be defeated, and the statute ren- dered nugatory in many cases. There is often no time for inquiry, as action must be immediate. The necessity of the case will not permit the person thus summoned to stop and examine the papers, or to take counsel as to the legality of the process in the officer's hands, or to inquire whether any process is neceessary in the particular case where his aid is re- quired. 49 One who is called upon to aid in the exe- cution of a warrant is entitled to the same protec- tion as is the officer himself, and to have this protec- tion it is not necessary that he be in the actual phy- sical presence of the officer. If such person makes the arrest, he should, upon demand, show his au- thority, and if he cannot do so, but states that it is in the possession of the officer, that is sufficient. 50 § 220. Agent Procuring Unlawful Arrest— Liability of Principal. — Applying the ordinary rules of principal and agent, if an agent acting within the scope of his employment imprisons a person, or causes him to be imprisoned, for a cause which the law deems inade- quate, not only the agent, but his principal as well, will be liable. 51 49 Same cases. See, also, extensive discussion of this subject in a note, 44 Am. St Rep. 136. 60 Robinson v. State, 93 Ga. 77, 44 Am. St Rep. 127, 18 S. E. 1018. 6i Evansville etc. R. R. Co. v. McKee, 99 Ind. 519, 50 Am. Rep. 102; Penna Co. v. Weddle, 100 Ind. 138; Rosekrans v. Barker, 115 111. 381, 56 Am. Rep. 169, 3 N. E. 93; Wheeler etc. Mfg. Co. v. Boyce, 479 INJURY TO PERSONAL LIBERTY. § 221 § 221. Attorney's Liability for False Imprisonment — The general doctrines of the joint liability of attorney and client have been discussed in a previous chap- ter. These are applicable to the wrong of false im- prisonment, so far as the nature of the wrong per- mits. 53 It is clear that the attorney is jointly liable when he acts concertedly with the party; but what his powers are in reference to the arrest of a person is a different question. If we were to consider what are his general powers when he is appealed to by a client desiring the arrest, it would be found that about all that he would be called upon to do in such case would be to give advice and draw the warrant. We take it that he occupies rather a different posi- tion in the matter of causing the arrest of a person than when a writ is to be levied upon property. In the latter case he need not participate, while in the matter of arrest he is called upon to advise and as- sist. If he is instrumental in having process issued which is void, he is liable. 53 And so if he takes part in any matter which is beyond the powers of the offi- cer he is liable. 54 Of course, where the attorney knows that an arrest is groundless and he shares in the guilty knowledge and acts of his client, he is equally liable. 55 So does he stand upon the same footing with his client, and is held equally blameless where he merely assists in laying facts before a mag- istrate, who is left to act upon his own responsibil- 36 Kan. 350, 59 Am. Rep. 571, 13 Pac. 609; Shattuck v. Bill, 142 Mass. 56, 7 N. E. 39; Caswell v. Cross, 120 Mass. 545; Wachsmuth v. Merchants' Nat. Bank, 96 Mich. 426, 56 N. W. 9; Duggan v. Balti- more etc. R. R. Co., 159 Pa. St 248, 39 Am. St. Rep. 672, 28 Atl. 182, 186. 52 Ante, sec. 80. 63 Deyo v. Van Valkenburg, 5 Hill, 242. 64 Hardy v. Keeler, 56 111. 152. 65 Ante, sec. 80, and cases. I 222 FALSE IMPRISONMENT. 480 ity. An attorney is not liable where the court acts upon the matter and orders a warrant which is after- ward declared void. 56 An attorney may, in pursu- ance of the powers conferred upon him by his gen- eral employment, cause an arrest so as to render him- self liable. 67 § 222. What Makes an Imprisonment Unlawful.— Re- straint of the freedom of a person "without author- ity of law, and against his will," is what constitutes false imprisonment. "Without authority of law" is the great question, and as the learned English au- thor, Sir Frederick Pollock, says: "One could not ac- count for all possible justifications (for the justifica- tion of imprisonment) except by a full enumeration of all the causesi for which one man may lawfully put restraint on the person of another." 58 In the first place, the unlawfulness of an arrest will depend upon the powers of officers and other persons to make arrests. In nearly, perhaps all, the states, this is regulated by statute, which empower officers to make arrests in a prescribed manner. An arrest may be made upon warrant, or it may be without warrant. In the interest of the public welfare and society it is highly essential that officers be empowered to make arrests, without the delay involved in obtaining a warrant. Whenever a person is discovered in the act of committing a crime of the higher grade, a fel- ony, or whenever an officer has reasonable ground to believe that a person has committed such crime, the best interests of society are subserved by arrest- ing the felon at once, lest he might flee while the 66 Fisher v. Langbein, 13 Abb. N. C. 10, 103 N. Y. 84, 8 N. E. 251. 57 Burnap v. Marsh, 13 111. 536. See note, 67 Am. St. Rep. 425; Deyo v. Van Valkenburgh, 5 Hill, 242; Barker v. Braham, 2 W. Black. 866; Green v. Elgie, 5 Q. B. 99. 68 Pollock on Torts, 263. 481 INJURY TO PERSONAL, LIBERTY. § 223 warrant is being obtained. It is fundamental and is universally provided by statute that an officer may arrest another without a warrant when he has reasonable ground to believe that a felony has been committed or for misdemeanors when com- mitted in his presence. 59 The question of the legality of an arrest and consequent detention re- solves itself into one of (1) probable cause, and (2) the validity of a warrant when issued. Again, re- straint may be unlawfully imposed in other ways than by making arrests, viz., by virtue of certain re- lationships, as parent and child, teacher and pupil, etc. These will be discussed separately. § 223. Arrest Must be Upon Probable Cause.— Both officer and private citizen when making an arrest, to keep within the bounds of exemption from liabil- ity, must have probable cause for making such ar- rest. Indeed, as will appear at a later section, they cannot escape liability even though they have prob- able cause, if they do not obtain a warrant within the required time. 60 Probable cause, in false imprison- ment, is denned to be a reasonable ground of sus- picion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the be- lief that the person arrested was guilty. 61 It does not depend on the actual state of facts as it might turn out upon legal investigation. It is made to de- pend upon knowledge of facts and circumstances which were sufficient to induce a reasonable person to believe the truth of the accusation, and that such knowledge and belief existed in the mind of the one 69 Eanes v. State, 44 Am. Dec. 292, note; Marsh v. Smith, 49 111. 396. See note, 54 Am. Dec. 268, and numerous cases cited. 60 See sec. 225, post 61 Rich v. Mclnerny, 103 Ala. 345, 49 Am. St. Rep. 32, 15 South. 663; Johns v. Marsh, 9 Md. L. Rep. 143; Boyd v. Cross, 35 Md. 197. Torts, Vol. 1—31 I 223 FALSE IMPRISONMENT. 482 causing the arrest at the time the charge was made or being prosecuted, and were, in good faith, the reason and inducement for putting the law in mo- tion.' 63 The grounds of belief giving rise to probable cause must not be mere causeless suspicion, as, for exam- ple, where a constable undertook to discover those guilty of burglaries recently committed, and, with no clue to the guilty ones, attempted to stop all who passed by and search them. 63 It is considered that reliable information received from others 64 (but in this we may suggest the officer should be very guarded), or even through letters, 65 will be sufficient to justify an arrest by an officer. If an officer obtain reliable information from others, he is not required to ascer- tain if the accused is not in fact innocent. 66 The pri- vate citizen can make no arrest for a misdemeanor, 07 while an officer may, provided the act is committed in his presence; 68 in order to prevent the commission of a crime, and the disturbance of the peace. As is said in a late Michigan case, an arrest without war- rant is only authorized in cases of felony or breach of the peace. 69 Thus the law considers the suspicion or belief that a felony has been committed, and that 62 Id. 63 People v. Burt, 51 Mich. 199, 16 N. W. 378; Burk v. Howley, 179 Pa. St 539, 57 Am. St. Rep. 607, 36 Atl. 327. 64 Holley v. Mix, 3 Wend. 350, 20 Am. Dec. 702. 65 Commonwealth v. Carey, 12 Cush. 246; Filer v. Smith, 96 Mich. 347, 35 Am. St. Rep. 603, 55 N. W. 999. 66 Diers v. Mallon, 46 Neb. 121, 50 Am. St. Rep. 598, 64 N. W. 722. 67 Ante, sec. 217, note 33. 68 Bright v. Patton, 5 Mackey (D. C), 534, 60 Am. Rep. 396; Com- monwealth t. Carey, 12 Cush. 246; Wade v. Chaffee, 8 R. I. 224, 5 Am. Rep. 572; Eanes v. State, 6 Humph. 53, 44 Am. Dec. 289; Prell v. McDonald, 7 Kan. 426, 12 Am. Rep. 423; Doering v. State, 49 Ind. 56, 19 Am. Rep. 669. 69 Tillman v. Beard, 121 Mich. 475, 80 N. W. 248. See, also, Veneman v. Jones, 118 Ind. 41, 10 Am. St. Rep. 100, 20 N. E. 644. 483 INJURY TO PERSONAD LIBERTY. § 224 a certain person has committed it, or presence at an attempted crime or misdemeanor, or its accomplish- ment, as sufficient cause for an arrest by one of its officers, and this, of necessity, to prevent the escape of criminals from justice. Innocent parties must often suffer, that justice may be more certain of pun- ishing the guilty ones. Private persons, however, do not have the duty of enforcing the law, and to allow them to substitute belief for certainty would be to allow indiscriminate arrest, and great inconvenience; so the ordinary citizen must know at his peril that a felony has been committed, and this knowledge is the only cause which the law will recognize. A further cause which will be regarded by law is an order by one officer of the law upon another to take a person into custody. In this case, the order or warrant must be such a one as is perfectly regular or fair in all appearances. And this brings us to the question as to the responsibility of an officer making an arrest under a warrant. § 224. Arrest Under Warrant.— When an officer makes an arrest under a warrant, all he has to do is to be satisfied that the writ or warrant is fair on its face, and he will be protected in its execution. It is said to be fair on its face when there is nothing appearing upon it that will show that it was issued without authority. Such a writ is a perfect defense to a charge of false imprisonment, 70 though there 70 State v. Parker, 34 Ark. 158, 36 Am. Rep. 5. See discussion of the general doctrine, ante, sec. 176; Grumon v. Raymond, 1 Conn. 40, 6 Am. Dec. 200; Vaughn v. Congdon, 56 Vt. Ill, 48 Am. Rep. 758; Floyd v. State, 12 Ark. 43, 54 Am. Dec. 250; Tyron v. Pin- gree, 112 Mich. 338, 67 Am. St. Rep. 398, 70 N. W. 905; Leib v. Shelby Iron Co., 97 Ala. 626, 2 South. 67; Marks v. Sullivan, 9 Utah, 12, 33 Pac. 224; Cassier v. Fales, 139 Mass. 461, 1 N. E. 922; Kelsey v. Klabunde, 54 Neb. 760, 74 N. W. 1099; Pepper v. Mayes, 81 Ky. § 224 FALSE IMPRISONMENT. 484 may have been irregularities in the proceeding in which the writ was issued. 71 A person, officer, or private citizen to whom a valid command or warrant is directed which is fair on its face cannot be held liable for an arrest thereunder. But if any other than the one to whom the warrant is issued attempts to make the arrest, he will be liable to an action, 72 except in Texas, where by statute every citizen is made a peace officer and allowed to make an arrest under a warrant. 73 If, however, the warrant is not valid on its face, it is void and affords no defense to an action for an arrest made under it, even though served by the one to whom it is addressed. 74. If the writ is voidable for error, this, being a mistake of the court, there is no liability for any acts under it until after it has been declared void. 75 The officer who serves the writ, however, is not liable if it is fair upon its face, even though it be set aside for error or irregularity. 76 And this even if the officer has knowledge aliunde that there are irregularities or valid defenses. 77 So it may happen that process 673; Slomer v. People, 25 III. 70, 76 Am. Dec. 786; Messman t. Ihlenfeldt, 89 Wis. 585, 62 N. W. 522. 71 Jennings v. Thompson, 54 N. J. L. 55, 22 Atl. 1008. 72 Dietrichs v. Schaw, 43 Ind. 175; Hayden v. Songer, 56 Ind. 42, 26 Am. Rep. 1; Wells v. Jackson, 3 Munf. 458; Winkler v. State, 32 Ark. 539. 73 Doughty v. State, 33 Tex. 1. 74 Taylor v. Coolidge, 64 Vt. 506, 24 Atl. 656; Dietrichs v. Shaw, 43 Ind. 175; Getzenleuchter v. Niemeyer, 64 Wis. 316, 54 Am. Rep. 616, 25 N. W. 442; Day v. Bach, 87 N. T. 60; Chapman v. Dyett, 11 Wend. 31, 25 Am. Dec. 598; Reynolds v. Harris, 14 Cal. 667, 76 Am. Dec. 459; Taylor v. Alexander, 6 Ohio 144; State v. Curtis, 2 N. C. 471. 75 Day v. Bach, 87 N. Y. 60; Dusenbury v. Keiley, 85 N. Y. 383; Marks v. Townsend, 97 N. Y. 590; Hayden v. Shed, 11 Mass. 500; Winchester v. Everett, 80 Me. 535, 6 Am. St. Rep. 228, 15 Atl. 596. 76 Kerr v. Mount, 28 N. Y. 659. 77 Marks v. Sullivan, 9 Utah, 12, 33 Pac. 224; Watson v. Watson, 9 Conn. 140, 23 Am. Dec. 324; Twitchell v. Shaw, 10 •Cush. 48, 57 4S5 INJTJKY TO PERSONAL LIBERTY. § 225 void as to parties instigating or issuing it, will be valid as to the officer serving it. 78 Some cases, on the other hand, consider that if this notice relates to mat- ters affecting the jurisdiction, the officer may be held. 79 Care must be taken to distinguish between instigating and procuring, and simply giving the in- formation upon which an officer acting on his own responsibility, bases the reasonable belief justifying his arrest. 80 § 225. Duty as to Obtaining Warrant— When Arrest Made Without— Detention for Unreasonable Time.— The right to make an arrest upon reasonable suspicion that a crime has been committed, and that the person arrested is probably guilty, does not dispense with the necessity of filing a complaint. This temporary proceeding, without previous warrant, can only be resorted to in case of urgent necessity, the person making the arrest being required to proceed without delay in procuring a warrant. The detention can last long enough to bring the prisoner before a mag- istrate for proper inquiry. The arresting officer can- not lock and detain the prisoner to suit his conveni- ence for further inquiry, even though the prisoner should consent. To afford protection to the officer making the arrest he must pursue the authority vested in him by law strictly. A person who has been arrested without a warrant cannot be held in custody for any longer period than is reasonably necessary to obtain a legal warrant for his detention. Am. Dec. 8; Wall v. Grumbull, 16 Mich. 234; Taylor v. Alexander, 6 Ohio, 147. 78 State v. Weed, 21 N. H. 262, 53 Am. Dec. 188. 79 Tellefsen v. Fee, 168 Mass. 188, 60 Am. St. Eep. 379, 46 N. E. 562; Sprague v. Birchard, 1 Wis. 457, 60 Am. Dec. 393; McDonald v. Wilkie, 13 111. 25, 54 Am. Dec. 423; Grace v. Mitchell, 31 Wis. 533, 11 Am. Eep. 613. so Shinglemayer v. Wright, 124 Mich. 230, 82 N. W. 887. § 226 FALSE IMPRISONMENT. 486 If an officer does not do so, the familiar doctrine that one who abuses an authority given him by the law becomes a trespasser ab initio applies. It fol- lows that if an officer holds a person whom he ar- rests without warrant for a longer period than the law permits, without obtaining a writ or other author- ity from a competent court, there is a right of action against the one making the arrest. 81 There being nothing to prevent the officer from taking the pris- oner before a magistrate immediately upon the arrest, the question whether the time was reasonable is a question of law, and the court should give its instruc- tion accordingly. 82 In some jurisdictions the time within which an accused may be held is regulated by statute, which should be consulted. Where the facts are in dispute, the question of reasonable ground for believing that a person arrested without process has committed, or is implicated in, a felony, is for the jury under proper instructions. If, however, the facts are conceded, or undisputed, the rule is, that probable cause is a question of law for the court. 83 § 226. Joint Liability of Arresting Officers, Jailers, etc. — All who take part in a wrongful arrest or subse- quent detention which is unlawful, or where such de- tention continues long enough to render the arrest un- lawful, are equally guilty. Officers who make a wrong- si Leger v. Warren, 62 Ohio St. 500, 78 Am. St. Rep. 738, 57 N. E. 506; Tryon v. Pingree, 67 Am. St. Rep. 419, note; Bath v. Met- calf, 145 Mass. 274, 1 Am. St. Rep. 455, 14 N. E. 133; S. S. Co. v. Williams, 69 Ga. 252; Pastor v. Regan, 9 Misc. Rep. 547, 30 N. Y. Supp. 657; Brock v. Stimson, 108 Mass. 520, 11 Am. Rep. 390; Six Carpenters' Case, 4 Coke, 146; Harris v. Louisville etc. R. R. Co., 35 Fed. 116; Cochran v. Toher, 14 Minn. 385. 82 Cochran v. Toher, 14 Minn. 385. 83 Diers v. Mallon, 46 Neb. 121, 50 Am. St. Rep. 599, 64 N. W. 722; Boyd v. Cross, 35 Md. 194; Filer v. Smith, 96 Mich. 347, 35 Am. St. Rep. 603, 55 N. W. 999. 487 INJURY TO PERSONAL LIBERTY. § 227 ful arrest are liable jointly with those who cause and take part in a subsequent detention under it; al- though, if the arrest had been lawful, they would not be liable for a subsequent wrongful imprisonment in which they took part. 84 But if arresting officers fail to procure the necessary warrant for the detention of a prisoner arrested without a warrant, the imprison- ment becomes unlawful from the beginning, and all concerned in it are equally liable. 85 A sentence by a court having no jurisdiction being void, it renders those liable who keep the prisoner in confinement un- der such sentence. 86 § 227/ Distinction Between False Imprisonment and Malicious Prosecution. — The fact that where an arrest is made without a warrant, or where one instigates the arrest of one upon warrant or not, there must be a reasonable and probable suspicion that the one ac- cused is guilty of the crime, which is termed probable cause, creates confusion between this subject and ma- licious prosecution, in which wrong there also must be a probable cause to suspect the one accused. The fact that there is an element in each called "probable cause" has led to the impression that the two are simi- lar in nature and are controlled by the same rules. The distinction lies in the fact that want of probable cause in malicious 1 prosecution is the essential deter- minative element of the tort, while in false imprison- ment it is but one, and not an essential element deter- minative of the question of proper legal authority, which last feature is the only essential in this tort. In the one — malicious prosecution — there must be 84 Bath v. Metcalf, 145 Mass. 274, 1 Am. St. Rep. 455, 14 N. E. 133. 85 Leger v. Warren, 62 Ohio St. 500, 78 Am. St. Rep. 738, 57 N. E. 506. 86 Patterson v. Prior, 18 Ind. 440, 81 Am. Dec. 367. § 228 FALSE IMPRISONMENT. 48S want of probable cause, and the legal authority for an arrest may or may not be valid. In the other — false imprisonment — the authority cannot be valid, while there may or may not be probable cause. So it is said that an arrest on valid process issued by a court with jurisdiction, but which is maliciously pro- cured, and without probable cause, gives rise to an ac- tion for malicious prosecution, while if the imprison- ment is extrajudicial, and without legal process it is false imprisonment. 87 At common law, false impris- onment was an action in trespass vi et armis, while malicious prosecution was trespass on the case. 88 An arrest and imprisonment of a person on a charge which does not constitute a crime does not give rise to a right of action for malicious prosecution, but false imprisonment. 89 .§ 228. Judicial Officers— Their Liability.— The gen- eral principles of law with respect to the liability of judicial officers have been fully treated in a previous chapter, 90 and need not be repeated. It should be read in connection with this chapter. It may here be stated that a justice of the peace may be held liable where he commits to prison a person who commits a crime outside of his jurisdiction, 91 or if he imprisons one who is charged with an act which does not con- stitute a crime. 92 But a judge cannot be held for false imprisonment for exceeding his authority in 87 Boaz v. Tate, 43 Ind. 60; Krause v. Spiegel, 94 Cal. 370, 28 Am. St. Rep. 137, 29 Pac. 707. 88 See Spice v. Steinruck, 14 Ohio St. 213. 89 Krause v. Spiegel, 94 Oal. 370, 28 Am. St. Rep. 137, 29 Pac. 707. so Ante, c. 15, sees. 184-189. 91 Bell v. McKinney, 63 Miss. 187. 92 De Courcey v. Cox, 94 Cal. 665, 30 Pac. 95; Truesdell v. Combs, 33 Ohio St 186; Grove v. Van Duyn, 44 N. J. L. 654, 43 Am. Rep. 412, 42 Am. Rep. 648. 489 INJURY TO PERSONAL LIBERTY. § 229 fixing and inflicting punishment under an ordinance subsequently declared void, 93 and in Wisconsin a judge of a court of limited jurisdiction is held not lia- ble where he erroneously decides that a certain law confers jurisdiction to try a cause. 94 A police judge has no jurisdiction or authority to commit a person, who is arrested by a city marshal simply on the strength of a telegram from another state, to jail, where there is no charge against him or warrant of any kind. 95 Arrests made under such circumstances are wholly unauthorized. 96 An action for false im- prisonment will lie against a mayor who, without ju- risdiction, causes to be arrested without a warrant a person charged with cruelty to animals, which is not committed in the presence of the officer. 97 A court cannot confer jurisdiction by assuming it, nor can its determination that it has jurisdiction confer it. 98 This matter having been gone into so fully under official liability, nothing further will be added here. § 229. Measure of Damages.— if there is no malice, and although the person charged with the wrong of false imprisonment may have acted in good faith and in the honest belief that he was discharging his duty, compensatory damages may be allowed. If the ar- rest and imprisonment was malicious, then, follow- ing the usual rule, exemplary damages may be recov- 93 Calhoun v. Little, 106 Ga. 336, 71 Am. St. Rep. 254, 32 S. E. 86. 94 Robertson v. Parker, 99 Wis. 652, 67 Am. St. Rep. 889, 75 N. W. 423. 95 Glazer v. Hubbard, 102 Ky. 68, 80 Am. St. Rep. 340, 42 S. W. 1114. 96 Simmons v. Van Dyke, 138 Ind. 380, 46 Am. St. Rep. 411, 37 N. E. 973. 97 State v. McDaniel, 78 Miss. 1, 84 Am. St. Rep. 618, 27 South. 994. 98 Kkumoto v. Marsh, 130 Cal. 66, 80 Am. St. Rep. 73, 62 Pac. 303, 509. § 230 CONFINEMENT IN ASYLUM. 490 ered." Personal ill-will is not necessary to warrant the award of punitive damages, a wanton disregard of the rights of the person arrested being sufficient. 100 II. RESTRAINT OP PERSONS FOR PEACE AND SECURITY OR HEALTH OF THE COMMUNITY. § 230. Wrongful Confinement in Asylum or Hospital. It will be conceded that the state has the right to re- strain the freedom of persons whose physical condi- tion is such as to endanger the public safety. It is incumbent upon the state to protect the public from dangerous lunatics. The state also occupies the rela- tion of guardian of insane persons, and owes a duty of protection of its wards, as well as protection of the public. And though an insane person is harmless, the view is expressed that he may be confined because of the duty to care for him without rendering those concerned in his confinement liable for false impris- onment. 101 It may be of the utmost importance in many cases that speedy aid should be afforded, even though no dangerous symptoms are manifest, and where delays would aggravate the case. "For purposes not designed for the care of the patient, imprisonment could not be justified probably with- out some danger." 10a In Massachusetts, however, it is held that an officer is not authorized to arrest a man without a warrant, on the ground that he is insane, unless he is dangerous. 103 But in the case of a dan- 99 Josselyn v. McAllister, 22 Mich. 300; Sorenson v. Dundas, 50 Wis. 335, 7 N. W. 259. ioo Pearce v. Needham, 37 111. App. 90. 101 Van Deusen v. Newcomer, 40 Mich. 90; Denny v. Tyler, 3 Allen, 225; Davis v. Merrill, 47 N. H. 208; Ayers v. Russell, 50 Hun, 282, 3 N. Y. Supp. 338. 102 Van Deusen v. Newcomer, 40 Mich. 142. 103 Look v. Deen, 108 Mass. 116, 11 Am. Rep. 323; citing English cases, Anderson v. Burrows, 4 Car. & P. 210; Scott v. Wakem, 3 Fost. & F. 328. 491 CONFINEMENT IN ASYLUM. § 230 gerously insane person the necessities of the case just- ify an arrest without a "warrant. 104 It is contended that as in imprisonment for criminal acts, so in this class of cases the fundamental law protects those sus- pected of being in a dangerous condition, or those who require care, from being deprived of their liberty without "due process of law." This, it is held, enti- tles them to some sort of judicial investigation into their condition "in which the citizen has an opportu- nity to be heard and to defend, enforce, and protect his rights." 105 The judgment of a competent tri- bunal having jurisdiction is a protection for acts done thereunder, and no one would be permitted to show, however clearly it might be made to appear, that such judgment, standing unreversed, was erroneous. 106 The rule above stated does not go to the extent of render- ing it improper to arrest and confine one who is vio- lently insane, and whose presence is dangerous, nor make it necessary that such an insane person shall be in court, 107 but it does forbid a confinement without an examination and upon an ex parte affidavit. 108 The investigation also must be as to the condition of the person at the time, and statutes providing for con- finement of those acquitted from criminal charges as ground of insanity have been held unconstitutional because the insanity found was that existing at the time of the alleged criminal act, and not at the time of the investigation. 109 To justify an arrest and con- 104 Colby v. Jackson, 12 N. H. 526. 105 Stuart v. Palmer, 74 N. T. 191, 30 Am. Rep. 289; State v. Billings, 55 Minn. 467, 43 Am. St. Rep. 525, 57 N. W. 206, 794, and valuable note, 43 Am. St. Rep. 531. 106 Van Deusen v. Newcomer, 40 Mich. 90, 113. 107 Chavannes v. Priestley, 80 Iowa, 316, 45 N. W. 766. 108 In re Jones, 30 How. Pr. 446; State v. Billings, 55 Minn. 467, 43 Am. St. Rep. 525, 57 N. W. 206, 794. 109 Underwood v. People, 32 Mich. 1, 20 Am. Rep. 633. § 231 RESTRAINT FOR HEALTH OF COMMUNITY. 492 finement of a dangerously insane person by a person without a warrant, it is said that the one enforcing the confinement must justify himself by showing in- sanity, or a condition which legally warrants a con- finement; 110 and the restraint must not be permanent but temporary, such as is preliminary to an institu- tion of a proper investigation. 111 There is a recog- nized exception to this rule, the relatives of an insane person having a right without judicial examination to confine him. 112 § 231. Restraint of Persons with Contagious Disease. The state has the right to restrain the freedom of persons whose physical condition is such as to en- danger the public safety or health. Thus, those who are affected with dangerous contagious diseases, such as smallpox, yellow fever, and the like, may be com- pelled to remain away from others who are not so af- fected, and prevented from mingling with the general public. These powers are usually conferred on health officers 1 , and so long as they keep within their author- ity there is no liability for such confinement. 113 Quarantine may be established and persons retained in hospitals until the danger of infection is gone, and those forbidden to embark from ship or trains, with- lio Colby v. Jackson, 12 N. H. 526; Van Deusen v. Newcomer, 40 Mich. 90. in Colby v. Jackson, 12 N. H. 526; Porter v. Rich, 70 Conn. 235, 39 Atl. 169; Ayers v. Russell, 50 Hun, 282, 3 N. Y. Supp. 338; Keleher v. Putnam Co., 60 N. H. 30, 49 Am. Rep. 304; Doyle, Petitioner, 16 R. I. 537, 27 Am. St. Rep. 759, 18 Atl. 159; Lott v. Sweet, 33 Mich. 308. 112 Van Deusen v. Newcomer, 40 Mich. 90; Denny v. Tyler, 3 Allen, 225; Ayers v. Russell, 50 Hun, 287, 3 N. Y. Supp. 338; Look v. Dean, 108 Mass. 116, 11 Am. Rep. 323; Davis v. Merrill, 47 N. H. 208. 113 Whidden v. Cheever, 69 N. H. 142, 76 Am. St. Rep. 154, 44 Atl. 908. 493 KESTRAINT FOB HEALTH OF COMMUNITY. § 231 out liability upon the part of those enforcing the re- straint. Hence it is lawful for a health officer to send persons from an infected vessel to a hospital, 114 and such person may not escape upon liabeas corpus pro- ceedings. 115 Again, persons may be prevented from entering a town or state until they have undergone quarantine inspection and disinfection, and a statute requiring such action is constitutional. 116 But, of course, such confinement and restraint must be in strict observance of statutory requirement, though the officers may be allowed some discretionary power, they not being in this respect mere ministerial agents. 117 If such officers act within the limits of their authority and in good faith, they cannot be held liable for errors of judgment, but it is well settled that such an officer is liable for acts in excess of his authority. 118 Compulsory confinement may be en- forced when conditions demand it, whether or not the one confined is in destitute circumstances, whether or not he is or may be properly cared for by himself or relatives, because the object is not primarily the care of the disease, but the protection of the public health. 119 This object indicates the limitation upon this power, for, while the state may compel medical treatment where a lack of it would tend to a spread of the contagion and endanger the community, in cases U4 Harrison v. Mayor etc. of Baltimore, 1 Gill, 264. us In re Smith, 84 Hun, 465, 32 N. Y. Supp. 317. 116 Minneapolis etc. R. R. Co. v. Milner, 57 Fed. 276. See Campagne Francaise etc. Navigation Co. v. State Board of Health, 51 La. Ann. 645, 72 Am. St. Rep. 458, 25 South. 591. in Harrison v. Mayor etc. of Baltimore, 1 Gill, 264; In re Smith, 84 Hun, 465, 32 N. Y. Supp. 317; Minneapolis etc. R. R. Co. v. Milner, 57 Fed. 276. 118 Whidden v. Cheever, 69 N. H. 142, 76 Am. St. Rep. 154, 44 Atl. 908; Spring v. Hyde Park, 137 Mass. 554, 50 Am. Rep. 334. 119 Harrison v. Mayor etc., 1 Gill, 264; Brown v. Purdy, 54 N. Y. Super. Ct. 109. § 232 CONFINEMENT OF INEBRIATES. 494 of innocuous diseases, any compulsory confinement for treatment or otherwise would be unlawful. 120 § 232. Confinement of Inebriates.— On similar grounds, as shown in the two previous sections in the case of insane persons, and persons affected with con- tagious diseases, the public safety demands that those whose condition, while not of itself likely to in- jure others, renders them liable to commit dangerous acts, may be confined until they return to a normal condition. Thus, we have asylums where those whom inebriety or insanity have rendered dangerous may be lawfully confined until danger is gone. In all the gradations from perfect sanity to hope- less insanity, and from utmost sobriety to deepest drunkenness, there is none where the condition may be said to pass from one to the other. No distinct line can be drawn between sane and insane, drunk and sober. At no step can it be affirmed that here there is no danger while at the next there is. Indeed, in no condition, drunk or insane, sober or sane, can it be said that there is no possibility of injurious action. Hence, it is not the possibility of injury which justifies a confinement, but the danger must be threatening and imminent. 121 Here, as the danger is from acts of an irresponsible mind, and not from communication of dis- ease, there is no need for a cure to protect the public, and detention is sufficient. Hence, no one can be compelled to undergo treatment for inebriety any longer than he desires to do so, and even though he voluntarily becomes an inmate of a hospital or an asylum for treatment alone, he cannot be enforced to remain against his will. 122 120 Tiedeman on State and Federal Control of Persons and Property, sec. 44. 121 See State v. Ryan, 70 Wis. 676, 36 N. W. 823; 2 Tiedeman on State and Federal Control of Person, 126, 127. 122 In re Baker, 29 How. Pr. 486. 495 MALICIOUS ABUSE OF PROCESS. § 233 III. MALICIOUS ABUSE OF PROCESS. § 233. Malicious Abuse of Process— Nature of Wrong. A malicious abuse of process consists in the malicious misuse or misapprehension of legal process to accom- plish some purpose not warranted or commanded by the writ. Anyone using process in such a manner is answerable to an action for damages for the abuse of the process of the court. 123 An action lies for the malicious abuse of process, civil or criminal. It is to be assumed that the process was lawfully issued for a just cause, and is valid in form, and the arrest or other proceeding upon the process was justifiable and proper in its inception. But the grievance to be re- dressed arises in consequence of subsequent proceed- ings. The principle is general and is applicable to all kinds of abuses outside the proper service of law- ful process, whether civil or criminal. All who may be in any wise connected with the wrong, the officer making service or acting under the writ, and also all others who may unite with him in inflicting the in- jury are liable. With reference to the abuse of civil process, it is akin to malicious prosecution. The latter is the malicious prosecution of a suit, while malicious abuse of process is the malicious use of process issued in aid of a proceeding, either pending or determined. Mali- cious abuse of process is distinguishable from mali- cious prosecution in that in the latter the action or proceeding must have terminated in favor of the in- jured party, while the former may be an intermediate auxiliary or final process, and want of probable cause is not an element of the wrong of abuse of process. Malicious abuse of criminal process is distinguishable 123 Bartlett v. Christhilf, 69 Md. 219, 14 Atl. 518; 2 Addison on Torts, 868. § 234 MALICIOUS ABUSE OF PROCESS. 496 from false imprisonment in that a warrant fair on its face is no defense, the wrong consisting in the wrongful use of a valid warrant, or willful use of pro- cess for a purpose not justified by law. In false im- prisonment the wrong is the lack of reasonable pre- caution in suing out the process, or in making the ar- rest without a warrant, or in not pursuing the proper steps after the arrest is made. So in malicious prose- cution the wrong may be without probable cause aris- ing from want of care, or it may be actual malice. While in malicious abuse of process the wrong is in- tentional, willful, malice being implied from the wrongful act. In some instances it is difficult, if not impossible, to distinguish false imprisonment and malicious abuse of process. It has been considered that if acts are done in excess of what was authorized, and if the process of the law is abused, the remedy might be by an action for false imprisonment. Lead- ing cases showing the general nature of the wrong as explained above are cited. 124 § 234. Same Continued— Illustrative Cases.— The leading English case, referred to frequently by our courts — Grainger v. Hill, 4 Bing. N. 0. 212 — was where the owner of a vessel was arrested on civil pro- cess, and the officer, acting under the directions of the plaintiffs in the suit, used the process to compel the defendant to give up his ship's register, to which they had no right. He was 'held entitled to recover damages, not for maliciously putting the process in force, but for maliciously abusing it, to effect an ob- ject not within its proper scope. The most frequent 124 Wood v. Graves, 144 Mass. 365, 59 Am. Rep. 95, 11 N. E. 567; Nix v. Goodhill, 95 Iowa, 282, 58 Am. St. Rep. 434, 63 N. W. 701; Antcliff v. June, 81 Mich. 477, 21 Am. St. Rep. 533, 45 N. W. 1019; Holley v. Mix, 3 Wend. 350, 20 Am. Dec. 702 (as to false imprison- ment; also 144 Mass. 365, 59 Am. Rep. 95, 11 N. E. 567). 497 MALICIOUS ABUSE OF PROCESS. § 234 form of the abuse is by working upon the fears of the person under arrest for the purpose of extorting money or other property, or of compelling him to sign some paper, to give up some claim, or to do some other act, in accordance with the wishes of those who have control of the prosecution. 125 Another common form of the abuse, and perhaps more frequent in mod- ern times, is wrongful levy of attachment or garnish- ment process. It ought to be well understood by all seeking to use legal process upon what it may operate, what may be attached or levied upon and what may not. Writs of execution can only reach tangible property, and then the officer must know that it is subject to levy and not exempt, for if he levies upon property which is exempt he is liable. 126 Books of ac- count and trial balances are not property of such tan- gible character that they can be subjected to attach- ment; there are no means by which these demands can be transferred by a direct levy and sale. 127 So, to use the process of the court to make examination of such books for inquisitorial purposes would be an abuse of process, and all connected therewith render themselves liable to an action. The process of courts can never be used for inquisitorial purposes, or for oppression, and such use be sustained. 128 So, suing out an attachment for an amount greatly in excess of the debt is an abuse. 129 Likewise, breaking open 126 Baldwin v. Weed, 17 Wend. 224 (imprisonment to secure debt); Holley v. Mix, 3 Wend. 350, 20 Am. Dec. 702. 126 Roby v. Labuzan, 21 Ala. 60, 56 Am. Dec. 237; Nix v. Good- hill, 95 Iowa, 282, 58 Am. St. Rep. 434, 63 N. W. 701 (personal earn- ings); Kiff v. Old Colony Ry. Co., 117 Mass. 591, 19 Am. Rep. 429. See Burton v. Knapp, 81 Am. Dec. 476, note. 127 Rosenthal v. Circuit Judge, 98 Mich. 208, 39 Am. St. Rep. 535, 57 N. W. 112; Freeman, on Executions, sec. 112. 128 Id. 129 Moody v. Deutsch, 85 Mo. 237; Sommer v. Witt, 4 Serg. & R. 19; Savage v. Brewer, 16 Pick. 453, 28 Am. Dec. 255. Torts, Vol. 1—32 § 234 MALICIOUS ABUSE OF PROCESS. 498 doors and wantonly injuring other property while at- tempting to levy on property of a judgment debtor. 130 So, obtaining a judgment by fraud and perjury not based on any valid demand, and suing out execution upon such judgment and extorting money thereunder, is an abuse of process. 131 So is the issuance of an execution upon a judgment for a debt which had been paid before its entry, with knowledge of that fact. 132 A justice of the peace is liable for the rendition of a void judgment with knowledge of the facts rendering it void. 133 The rule of the Six Carpenters' Case, 8 Coke, 146, that where one is acting under an author- ity conferred by law, in an illegal manner, or subse- quently abuses his authority, he is liable as a tres- passer from the beginning appears to be generally applied to this wrong, as it is to false imprison- ment. 134 This has been applied where an officer in attaching goods takes with him a grossly intoxicated and clearly unfit person, and places him in charge as a keeper; 135 and where an officer uses attached prop- erty properly levied upon instead of simply retaining it in custody. 136 In closing this subject the comment may very appro- priately be made that the courts holding that a right of action for the malicious prosecution will lie where property of a defendant has been interfered with, 137 cannot apply when the action is properly brought, but 130 Snydacker v. Brosse, 51 111. 357, 99 Am. Dec. 551. 131 Antcliff v. June, 81 Mich. 477, 21 Am. St Rep. 533, 45 N. W. 1019. 132 Barnett v. Reed, 51 Pa. St. 190, 196, 88 Am. Dec. 574. 133 McVea v. Walker, 11 Tex. Civ. App. 46, 31 S. W. 839. 134 Melville v. Brown, 15 Mass. 82; Wurmser v. Stone, 1 Kan. App. 131, 40 Pac. 993; Malcom v. Spoor, 12 Met. 279, 46 Am. Dec. 675: Baumgard v. Mayor, 9 La. 119, 29 Am. Dec. 437. 135 id. 136 Lamb v. Day, 8 Vt. 407, 30 Am. Dec. 479. 137 See sees. 414-417, post. 490 MALICIOUS ABUSE OF PROCESS. $ 235 the extraordinary process of the court is misused. It then becomes the wrong of malicious abuse of pro- cess. Especially is this true of the wrongful levy of an attachment upon personalty when the action is properly brought. § 235. Same Continued— Who Liable.— The rules of joint liability for the malicious prosecution of a suit have been set forth at another place, 138 and, being applicable to actions for the malicious abuse of pro- cess, need not be repeated here. It is sufficient to state that all persons who have anything to do with the wrongful use of process with knowledge should be held responsible in damages for injury arising therefrom. 139 138 Ante, sec. 55. 139 Kreiser v. Scofleld, 9 Misc. Rep. 200, 29 N. T. Supp. 685. PART FOUR. SPECIFIC WEONGS (WITHOUT EOKCE). A. PERSONAL SECURITY. 1. WITHOUT RIGHT. CHAPTER XVIII. INJURY TO CONSTITUTIONAL EIGHT OP PER- SONAL SECURITY. WITHOUT RIGHT. 1. By Animals. 2. By Spring-guns. | 236. Injury to person by animals— Classes of animals. § 237. Injury to person by animals ferae naturae. § 238. Injury to person by domestic animals'— Owner or keeper, when liable— General rule. § 239. Use of animals to protect property— Domestic animals of vicious character. § 240. Automatic guns— Injuries from. § 236. Injury to Person by Animals— Classes of Ani- mals. — The ancient and accepted division of animals is into tame and wild, or, as Blackstone puts it, domi- tae naturae and ferae naturae. 1 Those classed as domi- tae naturae are such as are considered tame, and are generally not found wandering at large, while those ferae naturae are those usually found at liberty. 2 In the first class belong domesticated animals, being 1 2 Blackstone's Commentaries, 390, 391; Schouler on Personal Property, sec. 48. 2 Id. (501) § 236 INJURY BY ANIMALS. 502 those which, by the experience of mankind, are not considered as dangerous, and not likely, from their nature, to do injury to persons, such as horses, cattle, sheep, and the like, and are the subject of individual ownership. 3 Animals ferae naturae are such as from their natural inclinations are dangerous, and likely to do injury to persons; and, so long as they are of that nature, are not subject to absolute ownership; they are deer, buffaloes, elephants, bears, wolves. There is a property right in the latter class of animals in the state in trust for all the citizens. 4 The state, then, may impose such restrictions upon their capture, as well as the ownership in them when caught, as it deems proper for the best interests of the people of the state at large. This right the state has in the exercise of its police power. 5 If the state does not prohibit individuals, or if one acts within the restrictions, if there are any, a per- son may obtain a special ownership in wild animals; but this depends entirely upon the control or domin- ion which one has> and may end by the return of the animal to its natural liberty. 6 During the existence of this qualified property right or ownership, it is subject to the same rule of property as any other class 3 Dearth v. Baker, 22 Wis. 73. 4 Magner v. People, 97 111. 320; Geer v. State of Connecticut, 161 TJ. S. 519, 16 Sup. Ct. Rep. 600; State v. Rodman, 58 Minn. 393, 59 N. W. 1098; American Exp. Co. v. People, 133 111. 649, 23 Am. St. Rep. 641, 24 N. E. 758; Ex parte Maier, 103 Cal. 476, 42 Am. St. Rep. 129, 37 Pac. 402; Organ v. State, 56 Ark. 267-270, 19 S. W. 840. 5 Magner v. People, 97 III. 320; Ex parte Melr, 103 Cal. 476, 42 Am. St. Rep. 129, 37 Pac. 402; McCready v. Virginia, 94 U. S. 391; American Exp. Co. y. People, 133 111. 649, 23 Am. St. Rep. 641, 24 N. E. 758; Organ v. State, 56 Ark. 267, 19 S. W. 840. 6 Goff v. Kilts, 15 Wend. 550; 1 Schouler on Personal Property, sec. 48; Shepherd v. Leverson, 2 N. J. L. 391. 503 INJURY TO RIGHT OF PERSONAL SECURITY, § 237 of property, 7 and the duties and liabilities of the owner and keeper are imposed, as shown in the next section. It would seem that under modern condi- tions, especially in circuses, zoological gardens and parks where many wild animals are kept, that the rigor of the common law that when wild animals re- gain their liberty a property right in them ceases, and that they would belong to the first person who should subject the same to his dominion, should be modified to meet present conditions. This has been done in some jurisdictions by recognizing a property right in them after escape. 8 § 237. Injury to Person by Animals Ferae Naturae. While some of our courts have recognized a property right in wild animals which have been tamed, by fur- nishing a remedy in damages for killing the same, 9 it is believed that the same rule of responsibility has always been imposed upon those who attempt to do- mesticate them. For the keeping of this class of ani- mals, which are from their nature likely to, and do, inflict injury to the person, the law imposes an ab- solute liability therefor, on the part of the owner or keeper without regard to the care observed. This liability being absolute, the party keeping such ani- mals takes the risk of being able to keep them safely, so that injury to others shall not be done by them. The owner may use the greatest care in keeping the animal, yet injury done without his negligence ren- ders him liable. The very keeping of such animals is an unlawful act. 10 The class of animals to which the 7 Goff v. Kilts, 15 Wend. 550; Amory v. Flyn, 10 Johns. 102, 6 Am. Dec. 316. 8 Ulery v. Jones, 81 111. 403; Manning v. Mitcherson, 69 Ga. 447, 450, 47 Am. Rep. 764. 9 Ulery v. Jones, 81 111. 403. 10 Popplewell v. Pierce, 10 Cush. 509; Marble v. Ross, 124 Mass. § 237 INJURY BY ANIMALS. 604 foregoing rule of absolute liability applies are those ferae naturae, as a lion, a bear, a wolf, and the like; an action can be maintained for any injury done by them, although the owner has no knowledge of their vicious propensities. 11 The question whether or not animals of this class may become domesticated, and placed in a class which are not considered dangerous, and for which there is no absolute liability for injuries by them, except when they are of vicious character, has received some attention and in England the rule is laid down that, "if from the experience of mankind a par- ticular class of animals is dangerous, though individ- uals are tamed, a person who keeps one of the class takes the risk of any damage it may do." ia In this country it is said by the supreme court of the United States: "Certain animals ferae naturae may doubtless be domesticated to such an extent as to be classed, in respect to the liability of the owner for injuries they commit, with the class known as tame or domestic animals; but inasmuch as they are liable to relapse into their wild habits and to become mischievous, the rule is that if they do so, and the owner becomes no- tified of their vicious habit, they are included in the same rule as if they had never been domesticated, the gist of the action in such a case, as in the case of untamed wild animals, being not merely the negligent keeping of the animal, but the keeping of the same with knowledge of the vicious and mischievous pro- pensity of the animal." 13 The latter rule is about the only one applying to the keeping of wild animals 44; May v. Burdett, 9 Ad. & E. 101; Filburn v. People's etc. Co., L. R. 25 Q. B. D. 258; Vredenburg v. Behan, 33 La. Ann. 627; Spring Co. v. Edgar, 99 U. S. 645; Scribner v. Kelley, 38 Barb. 14. n Filburn v. People's etc. Co., L. R. 25 Q. B. 258; Hale's Pleas of the Crown, 1, p. 430. 12 Filburn v. People's etc. Co., L. R. 25 Q. B. D. 258. 13 Justice Clifford, in Spring Co. v. Edgar, 99 U. S. 645. 505 INJURY TO RIGHT OF PERSONAL SECURITY. § 238 that may be called into practical use in this country, as such animals are only usually kept in parks, cir- cuses and the like. Thus, where one is assaulted and badly injured by a bear kept upon the lands of an- other while hunting for strayed cattle upon such lands, the keeper of such animal is liable; 14 and so where a pet wolf is allowed to be at large, which in- jures another, the owner is liable; 15 so where injury is done by a horse scaring at an elephant, the owner of the latter is liable. 16 § 238, Injury to Person by Domestic Animals— Own- er or Keeper, When Liable— General Rule.— What are termed "domestic animals" is that class which, by the experience of mankind, is not considered as danger- ous, and not likely from their nature to do injury to individuals, and such 'animals may be kept and dealt with on that footing without liability for an injury done by them, unless the same be negligently kept or dealt with, or unless they are of a vicious charac- ter which is known or properly chargeable to the owner or keeper. Our courts have uniformly held that whenever such animals are rightfully in the place where an injury is inflicted, the owner is not liable unless he knew that the animal was accustomed to be vicious. The right of action in such cases is based upon the keeping of the animal after knowledge of its vicious propensity, and not upon negligence. 17 On the other hand, if an animal is in a place wrongfully, 14 Vredenburg v. Behan, 33 La. Ann. 627. 15 Manger v. Shipman, 30 Neb. 352, 46 N. W. 527. 16 Scribner v. Kelley, 38 Barb. 14. 17 Dearth v. Baker, 22 Wis. 73; Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99; May v. Burdett, 9 Ad. & E., N. S., 101, 58 Eng. Com. L. 99; Vrooman v. Lawyer, 13 Johns. 339; Popplewell v. Pierce, 10 Cush. 509; Twigg v. Ryland, 62 Md. 380, 50 Am. Rep. 226; Ham- mond v. Melton, 42 111. App. 186; Stumps v. Kelley, 22 111. 140; Beckett v. Beckett, 48 Mo. 396. § 239 INJURY BY ANIMALS. 506 and injures a person, the owner is liable, though he does not know of any vicious propensity. 18 § 239. Use of Animals to Protect Property— Domestic Animals of Vicious Character. — The law has always per- mitted men to use such force as may be reasonably necessary to protect his person and property, allow- ing, too, the use of such instrumentalities as may be necessary, within the same limitations a«i to force, to accomplish the same purposes. It is said that a man may not, in this country, use dangerous or unneces- sary instruments for the protection of his property against trespassers, and the keeping of ferocious dogs for this purpose rests upon the same principle as does the setting of spring-guns, concealed, or placing of poisonous food. 19 While the right to keep a dog for the necessary defense of one's premises is recognized, it is subject to the limitation that if the same is of a vicious nature, which is known to the owner or keep- er, he must not permit him to be at large upon the streets or highway, where he is likely to bite anyone, and even when upon his own premises he must keep him securely fastened, so that persons lawfully going upon the premises or along the highway may not be bitten, and must suffer the consequences for failing so to do. The liability is the same, even though the one injured is a trespasser. 20 A keeper of a vicious is Goodman v. Gay, 15 Pa. St. 188, 53 Am. Dec. 589; Decker v. Gammon, 44 Me. 322, 69 Am. Dec. 99; Van Leuven v. Lyke, 1 N. Y. 515, 49 Am. Dec. 346. 19 Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175; Johnson v. Patterson, 14 Conn. 1, 35 Am. Dec. 96; Fletcher v. Rylands, 1 L. R. 263; Earl v. Van Alstine, 8 Barb. 630;' Laverone v. Mangianti, 41 Cal! 138, 10 Am. Rep. 269; Loomis v. Terry, 17 Wend. 496, 31 Am. Dec. 306. 20 Hayes v. Smith, 62 Ohio St. 161, 182, 56 N. E. 879; State v. Remhoff, 55 N. J. L. 475, 26 Atl. 860; Sylvester v. Maag, 155 Pa. St. 225, 35 Am. St. Rep. 878, 26 Atl. 392; Brice v. Bauer, 108 N. Y. 507 INJURY TO RIGHT OF PERSONAL SECURITY. § 240 dog is chargeable in the same way as is the owner. 21 Whether the gist of the action in such cases is negli- gence in keeping the dog, or merely keeping him with knowledge of his vicious propensities, is a question upon which our courts do not always seem to observe the proper distinction. Many speak of it as though the gist of the action was in negligently keeping the animal after knowledge of its vicious character, the negligence consisting in failure to keep him under proper restraint or insecurely fastened, 32 while other courts, and we think properly so, impose the liability upon the theory that he is an insurer against all harm that he might reasonably expect to ensue therefrom, without regard to 1 care or negligence. 23 § 240. Automatic Guns — Injuries from. — The law has ever been that a man cannot, for the mere protection of property, use deadly instruments, such as auto- matic or spring-guns set for the purpose of injuring trespassers. It is claimed by some authority that the mere setting of such instruments is unlawful; that no one has a right to prevent or resist a trespass 428, 2 Am. St. Rep. 454, 15 N. E. 695; Knowles v. Mulder, 74 Mich. 202, 16 Am. St. Rep. 627, 41 N. W. 896; Sherfey v. Bartley, 4 Sneed, 58, 67 Am. Dec. 597; Woolf v. Cbalker, 31 Conn. 121, 81 Am. Dec. 175. 21 Plummer v. Ricker, 71 Vt. 114, 76 Am. St. Rep. 757, 41 Atl. 1045. 22 Hayes v. Smith, 62 Ohio St. 161, 182, 56 N. E. 879; Glidden v. Moore, 14 Neb. 84, 45 Am. Rep. 98 (keeping bull insecurely fastened) ; Moulton v. Scarborough, 71 Me. 267, 36 Am. Rep. 308 (negligently keeping a ram); Laverone v. Mangianti, 41 Cal. 138, 10 Am. Rep. 269 (negligence in keeping dog); Pickering v. Orange, 1 Scam. (111.) 492, 32 Am. Dec. 35; Earl v. Van Alstine, 8 Barb. 630; Williams v. Moray, 74 Ind. 25, 39 Am. Rep. 76. 23 McCaskell v. Elliott, 5 Strob. 196, 53 Am. Dec. 706; Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175; Dearth v. Baker, 22 Wis. 73; Vrooman v. Lawyer, 13 Johns. 339; Twigg v. Ryland, 62 Md. 380, 50 Am. Rep. 226; Beckett v. Beckett, 48 Mo. 396; Ingham on Animals, sec. 92, p. 372. § 240 INJURY BY AUTOMATIC GUNS. 508 by using means dangerous to life or by inflicting great bodily injury. 24 This proposition is denied in other jurisdictions where it is claimed that it is not per se unlawful. 25 The law is very clearly settled that one cannot use more force or violence in the protection of property than is reasonably necessary under the cir- cumstances, and especially cannot use means calcu- lated to destroy life, 26 or to wound or inflict great bodily injury. 2T It appears to be the settled doctrine, in view of all the authorities, that the mere act of setting such instruments is unlawful, and the liability for any injury resulting therefrom is absolute. 28 It is true that the right to use violence in defense de- pends on the character of the trespass or crime com- mitted. 29 And that whether or not greater force, violence or injury is inflicted in particular cases than is necessary, is generally a question of fact to be de- cided by a jury, 30 yet there are certain well-settled limitations as matter of law. A spring-gun is not warranted as against a mere trespass upon property other than a dwelling-house, 31 but has been held justi- fiable to protect valuable property in a warehouse. 32 24 Hooker v. Miller, 37 Iowa, 613, 18 Am. Rep. 18. 25 State v. Moore, 31 Conn. 479, 83 Am. Dec. 159. 26 State v. Dooley, 121 Mo. 591, 26 S. W. 558; State v. Forsythe, 89 Mo. 667, 1 S. W. 834; Carroll v. State, 23 Ala. 28, 58 Am. Dec. 282, see, also, 82 Am. Dec. 675, note. 27 Sham v. Markham, 4 J. J. Marsh. 578, 20 Am. Dec. 232. 28 Woolf v. Chalker, 31 Conn. 121, 81 Am. Dec. 175; Hooker v. Miller, 37 Iowa, 613, 18 Am. Rep. 18. 29 Gray v. Combs, 7 J. J. Marsh, 478, 23 Am. Dec. 431; Hooker v. Miller, 37 Iowa, 613, 18 Am. Rep. 18. so Cooley on Torts, 195. 3i Hooker v. Miller, 37 Iowa, 613, 18 Am. Rep. 18; Bird v. Hol- brook, 4 Bing. 628. 32 Gray v. Combs, 7 J. J. Marsh. 478, 23 Am. Dec. 431. 509 INJURY TO RIGHT OF PERSONAL SECURITY. § 241 CHAPTER XIX. INJURY TO CONSTITUTIONAL RIGHT OF PERSONAL SECURITY BY NEGLIGENCE— GENERAL PRIN- CIPLES. § 241. This chapter. § 242. Negligence defined. § 243. Legal duty, basis for negligence. § 244. Legal duty — To whom owed— Not indiscriminate. § 245. Degrees of negligence. § 246. Willful and wanton negligence. § 246a. Same continued— The prevailing rule restated, § 247. Kind of care required to avoid negligence. § 248. Ordinary care defined— When exacted. § 249. Standard of duty, how fixed, f 250. Contributory negligence— General doctrine. § 251. Comparative negligence. § 252. Proximate cause. § 253. Imputed negligence. § 254. Negligence of children. § 255. Violation of statute or ordinance. § 256. Questions of negligence, how decided. § 257. Negligence causing fright— Mental suffering, whether ac- tionable. § 241. This Chapter will set forth the general principles of the wrong of negligence, and the law relating to injuries to the person by acts of negli- gence. The law of negligence occupies a conspic- uous place in the relations of men, but the fundamen- tal principles are the same wherever a question of neg- lect is involved, and are fundamental and compara- tively simple. These will be first considered, briefly, because they are elementary and well understood, and because, furthermore, the law of negligence is such an extensive topic of the law that the scope of § 242 NEGLIGENCE— GENERAL PRINCIPLES. 510 this work forbids anything more than the essential elements. It must he remembered that the prevailing idea and purpose of this work is to set forth the subject treated as an entirety, which task imposes restric- tions and limitations throughout. The special ap- plication of these doctrines are found under the ap- propriate heads and chapters. § 242. Negligence Defined. — Numerous and various definitions of negligence may be found, and we shall be content with giving one which seems entirely sat- isfactory, with references to others. Negligence which will give rise to a cause of action is the failure to do what a reasonably prudent person would ordi- narily have done under the circumstances of the situ- ation; or doing what such person, under the existing circumstances, would not have done. It is the fail- ure to observe that degree of care, precaution, and vigilance which the circumstances demand. 1 It is the neglect to use ordinary care, or skill toward a person to whom the defendant owes the duty of ob- serving ordinary care and skill, or as under the cir- cumstances is required, by reason of which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property. 2 1 Railroad Co. v. Jones, 95 U. S. 442; Tully v. Philadelphia etc. R. R. Co., 2 Penniewill, 537, 82 Am. St Rep. 425, 47 Atl. 1019; Brotherton v. Manhattan Beach etc. Co., 48 Neb. 563, 58 Am. St. Rep. 709, 67 N. W. 479. 2 Heaven v. Pender, L. R. 11 Q. B. D. 503; Harriman v. Pittsburgh etc. Ry. Co., 45 Ohio St. 20, 4 Am. St. Rep. 507, 12 N. E. 451. For other definitions, see Shearman and Redfield on Negligence, sec. 3; Wharton on Negligence, sec. 3.; Tonawanda R. R. Co. v. Munger, 5 Denio, 255, 49 Am. Dec. 239; Pennsylvania Railroad Co. v. Ogier, 35 Pa. St. 60, 78 Am. Dec. 322; Beisiegel v. New York Cent. R. R. Co., 34 N. X. 622, 90 Am. Dec. 741; Brotherton v. Manhattan Beach etc. Imp. Co., 48 Neb. 563, 58 Am. St. Rep. 709, 67 N. W. 479; 511 INJURY TO EIGHT OF PERSONAL SECURITY. § 243 A legal duty and violation thereof are the two es- sential elements. 3 Negligence cannot be defined by any rules of evidence; it must be inferred from all the facts of the case. It may sometimes be doubtful whether an injurious act was negligent or accidental. 4 Whether a cause of action accrues to an individual or in favor of the public from the violation of a stat- utory duty will depend upon the nature of the duty and the benefits to be derived from its performance. 5 The question of negligence in violating a statute or ordinance is specially considered elsewhere. 6 The duty to be cautious and vigilant is relative, and where that duty has no existence between particular parties, there can be no such thing as negligence, in the legal sense of the term. 7 § 243. Legal Duty, Basis for Negligence.— The first requisite establishing negligence is to show the ex- istence of some obligation or duty owing toward the person injured which has not been performed. 8 To establish negligence, then, there must be a fail- ure to perform a legal duty to the person injured. 9 Thompson on Negligence, sec. 251; Miller v. Brown, 111 N. Y. 318, 7 Am. St. Rep. 751, 18 N. E. 722. 3 Bevens on Negligence, 2d ed., p. 18. 4 Danner v. South Carolina R. R. Co., 4 Rich. 329, 55 Am. Dec. 678. In Cleveland City Ry. Co. v. Osbonu, 66 Ohio St. 45, where a passenger on a street railway car was thrown from the car and in- jured by the sudden stopping of the car in an effort to avoid col- lision, and by the shock of a collision which was not brought about by the negligence of the defendant, it is damnum absque injuria. 5 Taylor v. Lake Shore etc. R. Co., 45 Mich. 74, 40 Am. Rep. 457, 7 N. W. 728; Hayes v. Michigan Cent. R. Co., Ill U. S. 228, 4 Sup. Ct. Rep. 369. 6 See sec. 255, post. 7 Morris v. Brown, 111 N. Y. 318, 7 Am. St. Rep. 751, 18 N. E. 722. 8 City of Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. 155. 9 O'Leary v. Brooks Elevator Co., 7 N. Dak. 554, 75 N. W. 919; Akers v. Chicago etc. Ry. Co., 58 Minn. 544, 60 N. W. 670. It is § 244 NEGLIGENCE-GENERAL PRINCIPLES. 512 There can be no negligence, in a legal sense, which can give rise to a cause of action, unless there is a violation of a legal duty to exercise care. There can be no fault, or breach of duty, where there is no act, or service, or contract which a party is bound to per- form or fulfill. 10 The legal duty may arise from a reciprocal relation, such as between passenger and carrier, or it may be imposed by law, common law or statute. There can be no negligence independ- ently of some imposed or correlative duty, and it must be essentially related to the particular circum- stances under which the parties are placed. Negli- gence, then, always depends upon the measure of duty which the person causing the injury owes the injured; it is never presumed, but the duty must be shown. 11 § 244. Legal Duty— To Whom Owed— Not Indiscrim- inate. — It requires accurate discrimination, in some instances, to determine whether one who is the cause of an injury owes a duty to the one injured, the viola- tion of which will give rise to a cause of action. While the law considers proximate liabilities which are ordinarily confined to the persons who are im- mediately concerned in a transaction, 13 yet there are cases where a third party, not in any wise con- nected with, or related to, the principal transaction between two parties, may be injured by the neglect elementary that actionable negligence exists only when one negli- gently injures another to whom he owes the duty, created by con- tract or operation of law, of exercising care: Baltimore & Ohio etc. R. R. Oo. v. Cox, 66 Ohio St. 2T6. io Larmore v. Crown Point Iron Co., 101 N. Y. 394, 54 Am. Rep. 718, 4 N. E. 752; Splittorf v. State, 108 N. Y. 205, 15 N. E. 322; Gault v. Humes, 20 Md. 297; Sweeny v. Old Colony etc. R. R. Co., 10 Allen, 368, 87 Am. Dec. 644. n Baltimore City Pass. Ry. v. Nugent, 86 Md. 349, 38 Atl. 779; Warsaw v. Dunlap, 112 Ind. 576, 11 N. E. 623, 14 N. E. 568. 12 Francis v. Cockrell, L. R. 5 Q. B. 501. 513 INJURY TO RIGHT OF PERSONAL SECURITY. § 244 of one of them upon whom the law imposes a public duty a breach of which gives rise to an action. This principle is applied only in a peculiar class of cases, such as the manufacture and sale of machinery, or goods of. an inherently dangerous character, without disclosing its true nature, or where the same is de- fective, which is known to the vendor, 13 and in the preparation and sale of poisonous drugs 14 and explo- sives. In such cases because of the danger to life, the law casts upon both manufacturer and apothecary the obligation to use due care toward third persons. 16 Hence a druggist who sells a deadly poison labeled as a harmless drug is liable to one who takes it and suf- fers injury therefrom, though purchased by another. 16 And so if such person die from taking the poison, the dealer would be liable to his personal representative for wrongful death under the statute. 17 So a shipper of a dangerous explosive, without accompanying the same with the necessary information as to its dan- gerous character, is liable for any injury to anyone caused therefrom while it is in transit. 18 And so if manufacturers and vendors of petroleum put upon the market, for sale for illuminating purposes, an oil which they know to be below the legal fire test, they are liable for death or injury caused by an explosion of a lamp, even though the oil had been purchased 13 Heizer v. Kingsland etc. Mfg. Co., 110 Mo. 605, 33 Am. St. Rep. 482, 19 S. W. 630; Schubert v. J. R. Clark Co., 49 Minn. 331, 32 Am. St Rep. 559, 51 N. W. 1103. 14 Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455. IB Id. 16 Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455. 17 Norton v. Sewall, 106 Mass. 144, 8 Am. Rep. 298; Davis v. Guarnieri, 45' Ohio St. 470, 4 Am. St Rep. 548, 15 N. E. 350. 18 Barney v. Burstenbinder, 7 Lans. 213, 64 Barb. 213; Welling- ton v. Downer etc. Oil Co., 104 Mass. 64. Torts, Vol. 1—33 § 244 NEGLIGENCE— GENERAL PRINCIPLES. 514- from an intermediate dealer. 19 So where a chemical compound is sold as a hair wash, and it injures health. 20 One who manufactures and puts upon the market a dangerously faulty article for sale must be deemed to anticipate that it will, in the ordinary course of events, come to the hands of a purchaser from some intermediate dealer, who is not likely to discover the defect, and will be liable to anyone in- jured by reason thereof. 21 Anyone who leaves a dangerous instrument, such as a gun, in such a way as to cause danger, or who, without warning, supplies to others for use an instrument or thing which to his knowledge, from its construction or otherwise, is in such condition to cause danger, not necessarily incident to the use of it, is liable for injury caused to others. 22 If a person undertakes to do an act or discharge a duty by which the conduct of others may properly be regulated and governed, he is bound to perform it in such manner that those who are right- fully led to a course of conduct or action on the faith that the act or duty will be duly performed shall not suffer loss or injury by reason of negligence. The liability in such cases does not depend on the motives of the party taking upon himself the duty, but whether the legal rights of others have been vi- olated. 23 But a different principle applies in the manufacture and sale of articles or machinery not within the fore- going — that is, where it is not inherently dangerous, 19 Elkins v. McKean, 79 Pa. St. 493; Wellington v. Downer Kero- sene Oil Co., 104 Mass. 64 (naphtha). . 20 George v. Skivington, L. R. 5 Ex. 1. 21 Schubert v. J. R. Clark Co., 49 Minn. 331, 32 Am. St. Rep. 559, 51 N. W. 1103. 22 Heaven v. Pender, 11 Q. B. D. 503. 23 Sweeny v. Old Colony etc. R. R. Co., 10 Allen, 368, 87 Am. Dec. 644. 515 INJURY TO EIGHT OF PERSONAL SECURITY. § 244 as well as where a thing is constructed or manufac- tured for a particular person and special purpose. As, for example, an elevator is constructed for another under a contract that it will lift a certain number of pounds, and it falls by reason of a defective shaft, injuring a workman in the employ of the owner, there is no duty on the part of the manufacturer to the person injured, and hence no right of action. 24 And so a contractor who erects a hotel is held not liable for an injury from a defective girder which gives way. 25 So is a manufacturer and vendor of a steam boiler considered liable only to the purchaser for de- fective materials, or for want of care and skill in its construction, and hence is not responsible for an in- jury to a third person from an explosion while in the hands of such purchaser. 26 Nor is the vendor of a fly-wheel liable to one who buys it from his vendee, and who is injured by its flying apart during his use of it. 27 So the vendor of a threshing-machine was held not liable for an injury to another than his ven- dee by the blowing out of a defective cylinder head. 28 It must be conceded that there is some inconsis- tency, and perhaps some conflict in the cases enun- ciating the rules which we have above set forth. In the suit brought against the contractor for the faulty girder the court makes this statement: "The conse- quence of holding the opposite doctrine would be far- reaching. If a contractor who erects a house, who builds a bridge, or performs any other work, the manufacturer who constructs a boiler, piece of ma- 24 Necker v. Harvey, 49 Mich. 517, 14 N. W. 503. 25 Curtain v. Somerset. 140 Pa. St. 70, 23 Am. St. Rep. 220, 21 Atl. 244. 26 Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 638. 27 Loop v. Litchfield, 42 N. Y. 351, 1 Am. Rep. 543. 28 Heizer v. Kingsland etc. Mfg. Co., 110 Mo. 605, 33 Am. St. Rep. . 482, 19 S. W. 030. § 245 NEGL,IGENOEr-GENERAL PRINCIPLES. 510 chinery, or a steamship, owes a duty to the whole world that his work or his machine or his steamship shall contain no hidden defect, it is difficult to meas- ure the extent of his responsibility, and no prudent man would engage in such occupations upon such conditions. I,t is safer and wiser to confine such li- abilities to the parties immediately concerned." 29 If the boiler or the threshing-machine is not manu- factured and put upon the market for the retail trade, then the cases holding to the latter view of nonli- ability on the part of the manufacturer are clearly distinguishable from the other class of cases where an article dangerous in character is made for the trade, and there is no conflict. Telegraph companies owing a general duty to the public, it follows that while there is no privity be- tween the receiver of a message and the company, such receiver may nevertheless have an action in tort against the company for the breach of this duty. 30 If an injury is done by the omission of some duty which the defendant is under obligation to see per- formed, the omission to perform it fixes the liability, and the relation between the parties is immaterial. 30 * § 245. Degrees of Negligence.— The term "gross neg- ligence" is a familiar and well-understood expression. It has long been used to characterize certain negli- gent conduct, viz., in those cases where only slight care or diligence is due, and the same has not been exercised. It has been defined as the want of slight diligence. 31 It is said that "the degrees of negligence 29 Curtain v. Somerset, 140 Pa. St. 70, 23 Am. St Rep. 220, 21 Atl. 244. 30 Ante, sec. 117. 30a Salisbury v. Erie Railroad Company, 66 N. J. L. 233, 88 Am. St. Rep. 480, 50 Atl. 47. 31 First Nat. Bank v. Graham, 85 Pa. St. 91, 27 Am. Rep. 628; Wright v. Clark, 50 Vt 130, 28 Am. Rep. 496; Kranz v. Thieben, 15 517 INJURY TO RIGHT OF PERSONAL SECURITY. § 245 are correlative to the degrees of care"; 32 that "gross negligence is an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the interest and welfare of others," 33 such as will raise a pre- sumption of a conscious indifference to conse- quences. 34 Gross negligence includes all lesser de- grees of negligence. 35 Much has been said by way of criticism of any division of negligence into degrees, and justly so, when we know that negligence is negligence wherever encountered, but, after all, it means nothing more than the absence of whatever care is requisite in the particular instance involved. 36 Gross negli- gence is negligence with the addition of a vitupera- tive epithet. 37 The term had its origin in connection with gratuitous bailments and denotes that lesser degree of care which the law requires in such cases, and is a convenient expression to characterize conduct where slight care has not been observed, but it does not mean anything more than to say that there was xi failure to exercise reasonable care under the partic- ular circumstances. Mandataries and depositaries, being required to observe such care as men of com- mon sense and prudence use, however inattentive they may be of their own affairs, are considered li- able only for bad faith, or gross negligence, which 111. App. 482; Smith v. New York etc. R. R. Co., 24 N. Y. 222; Michigan Cent R. Co. v. Carrow, 73 111. 348, 24 Am. Rep. 248. 32 Redington v. Pacific Postal Tel. Co., 107 Cal. 317, 48 Am. St. Rep. 132, 40 Pac. 432. 33 Id.; Coit v. Western Union Tel. Co., 130 Cal. 657, 80 Am. St. Rep. 153, 63 Pac. 83; International etc. R. R. Co. v. Cocke, 64 Tex. 151; Lord v. Midland Ry. Co., L. R. 3 C. P. 344. 34 Southern Cotton Press Co. v. Bradley, 52 Tex. 587. 35 Hays v. Gainesville St Ry., 70 Tex. 602, 8 Am. St. Rep. 624, 8 S. W. 491. 36 Milwaukee etc. R. R. Co. v. Arms, 91 U. S. 494. 37 Wilson v. Brett, 11 Mees. & W. 113. § 245 NEGLIGENCE—GENERAL PRINCIPLES. 518 is an omission of slight care and diligence. 38 But, as a leading author says, this fails, at this day of uni- versal approval in our jurisprudence, to express the rule. 39 "Nothing," it is said, "in general is more un- satisfactory than attempts to define and formulate the different degrees of negligence; but even where the neglect which charges the mandatary is described as 'gross,' it is still true that if his situation or em- ployment implies ordinary skill or knowledge ade- quate to the undertaking, he will be responsible for any losses or injuries resulting from the want of the exercise of such skill or knowledge." 40 The term "gross negligence" is scarcely susceptible of legal definition, 41 and on the part of some courts there is a strong tendency to break down the impracticable distinction between what is termed gross negligence and ordinary negligence. 42 In Wisconsin the word "gross" has been used in connection with negligence, to designate conduct of a more reprehensible char- acter than mere inadvertence, such as rashness, wan- tonness, and recklessness of a person as regards the 38 Story on Bailments, sec. 174; Skelley v. Kahn, 17 111. 170; Gray v. Merriam, 148 111. 179, 39 Am. St. Rep. 172, 35 N. E. 810; Hibernla Bldg. Assn. v. McGrath, 154 Pa. St 296, 26 Atl. 377, 25 Am. St. Rep. 828, and cases in mote, p. 831. 39 Schouler on Bailments, sec. 35. See, also, Shearman and Red- field on Negligence, sec. 48; Redington v. Pacific Postal Tel. Co., 107 Cal. 317, 48 Am. St. Rep. 132, 40 Pac. 432. 40 Isham v. Post, 141 N. Y. 100, 38 Am. St. Rep. 766, 35 N. E. 1084; First Nat. Bank v. Ocean Nat. Bank, 60 N. T. 295, 19 Am. Rep. 181. 41 Griffith v. Zipperwick, 28 Ohio St. 388. 42 Telegraph Co. v. Griswold, 37 Ohio St. 301, 312, 41 Am. Rep. 500; Hinton v. Dibbin, 2 Ad. & E. 644; 1 Thompson on Negligence, sec. 18; Chicago etc. R. R. Co. v. Chapman, 133 111. 96, 23 Am. St. Rep. 587, 24 N. E. 417; Diamond State Iron Co. v. Giles, 7 Houst. 453, 11 Atl. 189; Pennsylvania R. Co. v. Sinclair, 62 Ind. 301, 30 Am. Rep. 185; Indianapolis etc. R. Co. v. McClaren, 62 Ind. 566. 619 INJURY TO RIGHT OF PERSONAL SECURITY. § 245 personal safety of another. 43 Notwithstanding the objection and criticism so often made, we find it con- stantly used and employed, and in some states the degrees of care and negligence are expressly recog- nized and sanctioned. 44 For example, directors or officers of corporations may become gratuitous bailees, and liable only for fraud or such gross negli- gence as is tantamount to fraud. 45 The standard of care which some of our courts have exacted of bank- ers, acting as gratuitous bailees of special deposits, is such care as men of common prudence usually be- stow upon their own affairs of a similar character, which seems to be of a higher degree of care than that usually exacted of mandataries or depositaries. 46 Slight care and diligence is said to be that care which every man of common sense, howsoever in- attentive he may be, takes of his own property. 47 The current judicial opinion, however, is that di- rectors of a bank must exercise ordinary care, and must use their best discretion and industry, and are personally liable for gross negligence and inattention 43 Lockwood v. Belle City etc. Ry. Co., 92 Wis. 97, 65 N. W. 866; Valin v. Milwaukee etc. Ry. Co., 82 Wis. 1, S3 Am. St. Rep. 17, 51 N. W. 1084; Bolin v. Chicago etc. Ry. Co., 108 Wis. 333, 81 Am. St. Rep. 911, 84 N. W. 446. 44 Coit v. Western Union Tel. Co., 130 Cal. 657, 80 Am. St. Rep. 153, 63 Pac. 83; Chicago & N. W. Ry. Co. v. Calumet Stock Farm, 194 111, 9, 88 Am. St. Rep. 68, 61 N. E. 1095. 45 Ante, sees. 131, 136; Swentzel v. Penn Bank, 147 Pa. St. 153, 30 Am. St. Rep. 718, 23 Atl. 405, 415; Hibernia Bldg. Assn. v. McGrath, 154 Pa. St. 296, 35 Am. St. Rep. 828, 26 Atl. 377; Scott v. National Bank, 72 Pa. St. 471, 13 Am. Rep. 711; First Nat Bank v. Graham, 79 Pa. St 117, 21 Am. Rep. 49. 46 First Nat. etc. Bank v. Zent, 39 Ohio St. 105; Gray v. Merriam, 148 111. 179, 39 Am. St. Rep. 172, 35 N. E. 810; Preston v. Prather! 137 U. S. 604, 11 Am. St. Rep. 162; Hun v. Cary, 82 N. Y. 65, 37 Am. Rep. 546; Hodges v. New England Screw Co., 1 R. I. 312, 53 Am. Dec. 624. 47 Merchants' Nat. Bank v. Guilmartin, 93 Ga. 503, 44 Am. St Rep. 182, 21 S. E. 55. S 245 NEGLIGENCE— GENERAL PRINCIPLES. 520 to the duties of their trust. 48 There is reason for exacting more scrupulous care from directors of banking corporations than from directors of other corporations. A mandatary whose situation or em- ployment implies skill or knowledge adequate to the undertaking is always 1 answerable for losses or in- juries resulting from want of the exercise of such skill or knowledge, and this is so even where the neglect, which charges a mandatary is described as "gross." 49 But this particular phase of the question has received sufficient attention as a special topic. 50 In a recent case the following very interesting statement is made with reference to degrees of negli- gence: "In the practical application of the doctrines and principles of the law of negligence to the affairs of the present time, the old method of classification is sometimes found to be inconvenient, because we need a measure with more than three marks on it — an instrument of more gradations and capable of more accurate adjustment to the facts of each par- ticular case; hence the present tendency in a large class of cases is to take ordinary care as a quantity, variable as the occasion may require, to measure the duty, sliding it up and down, so as to adjust it as near 48 Marshall v. Farmers? etc. Bank, 85 Va. 676, 17 Am. St. Rep. 84, 8 S. E. 586; Horn Silver Min. Co. v. Ryan, 42 Minn. 196, 44 N. W. 56; Davenport v. Underwood, 9 Bush, 609; Spering's Appeal, 71 Pa. St. 11, 10 Am. Rep. 684; Brannin v. Loving, 82 Ky. 370; Savings Bank v. Caperton, 87 Ky. 306, 12 Am. St. Rep. 488, 8 S. W. 885; Miesse v. Loren, 4 Ohio N. P. 307; Williams v. McKay, 40 N. J. Eq. 189, 53 Am. Rep. 775; Brinkerhoff v. Bostwick, 105 N. Y. 567, 12 N. E. 58; Delano v. Case, 121 111. 247, 2 Am. St. Rep. 81, 12 N. E. 676; Williams v. Halliard, 38 N. J. Eq. 373; Robinson v. Smith, 3 Paige, 222, 24 Am. Dec. 212; Isham v. Post, 141 N. Y. 100, 38 Am. St. Rep. 766, 35 N. E. 1084. 49 Isham v. Post, 141 N. Y. 100, 38 Am. St. Rep. 766, 35 N. E. 1084; Foster v. Essex Bank, 17 Mass. 479, 9 Am. Dec. 168; First Nat. Bank v. Ocean Nat Bant, 60 N. Y. 295, 19 Am. Rep. 181. 50 Ante, sees. 131, 136. 521 INJURY TO RIGHT OF PERSONAL SECURITY. § 246 as may be to the reasonable requirements of the particular case; so that, instead of using the measure with three marks on it made beforehand, we go on- to the ground to make a special measure for the occasion, by surrounding a prudent man, of the requi- site skill, with the facts of the case, and determining what he ought to do in the circumstances; that is, the measure of ordinary care. The ordinary care measures the duty, and the violation of the duty is the negligence complained of. The old classification is still useful in many ways, for not only in the nature of things are there different degrees of negligence, but, what is not less important, we cannot rid our- selves of the tendency to consider and speak of it in the way as we do of the gradations of crime. This method is a mere convenience, obtained by start- ing at a different point in their circle of correlations, and taking ordinary care as the variable yardstick, if we may so call it, to measure the duty, and to be made pro hac vice by putting the prudent man of the requisite skill in the place of the supposed trans- gressor, and calling upon the jury to tell us what we would have the right to expect him to do. The use of this measure, which has to be made on the spot and for the occasion by men of prudence and common sense, is one reason why the jury is generally per- mitted to aid in the making of it." 51 § 246. Willful and Wanton Negligence.— If negli- gence is to be divided into degrees, willful and wan- ton negligence is one, as this kind of negligence is recognized in many decisions. But it is just as il- logical to say that this is a degree of negligence as it is to say that certain conduct constitutes gross neg- 61 Gunn v. Ohio River R. R. Co., 36 W. Va. 165, 32 Am. St. Rep. 842, 14 S. E. 465. § 246 NEGLIGENCE— GENERAL PRINCIPLES. 522 ligence. It has been well said that what degree of negligence the law considers equivalent to a willful or wanton act is as hard to define as negligence it- self, and, in the very nature of things, is so depend- ent upon the particular circumstances of each case as not to be susceptible of general statement. 52 The conduct characterized as willful and wanton negli- gence, however, is nothing more than failure to ob- serve reasonable care under the circumstances, such care as reasonably prudent men would use under the same or similar circumstances. It is where the party injured is guilty of some negligence, yet the conduct of the one causing the injury is so much more reprehensible, and the circumstances de- mand greater and different vigilance than would be required of him under less perilous conditions. The most frequent application of the rule as to this grade or kind of negligence is in connection with railroads, where, for instance, persons are trespassing upon the tracks, or where the person injured himself has been guilty of some negligence. The idea that negligence on the part of one person absolves another from the duty of care and diligence toward him was long ago exploded, and the doctrine that where both parties are in fault, the party sustaining the injury cannot recover, is subject to the qualification that if the negligence of the one causing the injury is the effi- cient cause, he is liable. It is the duty of the ser- vants or agents of a railway after discovering a trespasser upon its track, to use reasonable care to avoid injury; it is likewise its duty to exercise reason- able care to discover the danger to such person. If it fails in either of these respects, and thereby causes injury, it has violated its legal duty under the cir- 52 Lake Shore etc. Ry. v. Bodemer, 139 111. 606, 32 Am. St. Rep. 218, 29 N. E. 692. 523 INJURY TO RIGHT OF PERSONAL, SECURITY. § 246 cumstances, and is guilty of negligence — nothing more. This is the kind of conduct which courts and writers characterize or designate as willful or wan- ton negligence, but by means of an arbitrary con- clusion add to this conduct an improper specifica- tion, which really is not present, viz., that this reck- less disregard or indifference to the rights of others, constitutes or amounts to an intention to do the par- ticular injury, something which does not exist. The same result as to liability may be had by the appli- cation of the doctrine of proximate or efficient cause. The same argument made against the degrees of negligence can be urged here. Negligence, whether slight, ordinary or gross, is still negligence; it is but an omission of duty. 53 It is not designed and inten- tional mischief, although it may be cogent evidence of such an act. 54 The doctrine of willful and wan- ton negligence is criticised and condemned, and yet it is followed almost unanimously by the courts, even by the courts indulging in the strictures. It is claimed that even if the terms "gross negligence," "recklessness," and the inapt word "wantonness" ex- press different degrees of negligence, still the charge is one of negligence, and is lacking in the elements of willfulness and purpose. 55 The word "wanton" does not mean "willful," and does not add any force to the charge that an act was done in a careless man- ner; 56 nor does gross negligence mean purposely or 53 Tonawanda R. R. Co. v. Munger, 5 Denio, 255, 49 Am. Dec. 239. 54 Gardner v. Heartt, 3 Denio, 232; Tonawanda R. R. Co. v. Munger, 5 Denio, 255, 49 Am. Dec. 239; Terre Haute etc. R. Co. v. Graham, 95 Ind. 286, 293, 48 Am. Rep. 719. 55 Terre Haute etc. R. Co. v. Graham, 95 Ind. 286, 293, 48 Am. Rep. 719. 56 Jeffersonville etc. R. Co. v. Bowen, 40 Ind. 545; Raming v. Metropolitan St. Ry., 157 Mo. 477, 508, 57 S. W. 268. 5 246a NE3LIGEN0B-GENERAL PRINCIPLES. 524 willfully. 57 Strictly, the word® "willful and wanton" are inaccurately or inharmoniously used to describe negligence, because "wanton" does not add anything, and "willful" goes to the intent, and where the act is intentional, it ceases to be negligence, and becomes one of violence or aggression. 58 § 246a. Same Continued— The Prevailing Rule Re- stated. — The so-called doctrine of "wanton and willful negligence," so well understood and universally fol- lowed and upheld by the courts may be stated as fol- lows: That where acts or conduct of a defendant, though not actuated by ill-will, is so reckless or so grossly negligent as to show an utter and entire dis- regard of the rights of another who may also be guilty of some negligence, an intention to inflict the injury will be supplied or imputed by law; or the law will so construe or presume such conduct or acts to be in wanton >and willful disregard of the rights and safety of others, as to amount in law to wanton and willful negligence. There is no intention, no willful act; this is supplied. 59 In such cases recovery may be had even 57 Cincinnati etc. R. R. Co. v. Eaton, 53 Ind. 307; Indianapolis etc. R. R. Co. v. McClaren, 62 Ind. 566; Meek v. Pennsylvania Co., 38 Ohio St. 632; Fonda v. St. Paul City Ry., 71 Minn. 438, 451, 70 Am. St. Rep. 341, 74 N. W. 166; Florida etc. R. Co. v. Foxworffi, 41 Fla. 1, 79 Am. St. Rep. 149, 25 South. 338. 58 Ohio & M. Ry. Co. v. Selby, 47 Ind. 471, 17 Am. Rep. 719; Railroad Co. v. Lockwood, 17 Wall. 357; Pennsylvania Co. v. Sin- clair, 62 Ind. 301, 30 Am. Rep. 185; Terre Haute etc. R. Co. v. Graham, 95 Ind. 286, 48 Am. Rep. 719; Raming v. Metropolitan St. Ry., 157 Mo. 477, 57 S. W. 268. 59 Alabama: Central R. R. etc. Co. v. Vaughan, 93 Ala. 209, 30 Am. St. Rep. 50, 9 South. 468; Birmingham Ry. etc. Co. v. Bowers, 110 Ala. 331, 20 South. 345; Louisville etc. R. R. Co. v. Markee, 103 Ala. 160, 49 Am. St. Rep. 21, 15 South. 511; Alabama etc. R. R. Co. v. Moorer, 116 Ala. 642, 22 South. 900. California: Schierhold v. North Beach & M. R. R. Co., 40 Cal. 447. Colorado: Hector Min. Co. v. Robertson, 22 Colo. 491, 45 Pac. 406; Denver etc. R. Co. v. Spencer, 25 Colo. 9, 52 Pac. 211. 525 INJURY TO RIGHT OF PERSONAL SECURITY. § 246a Florida: Florida Southern Ry. Co. v. Hirst, 30 Fla. 1, 32 Am. St. Rep. 17, 11 South. 506. Georgia: Central R. R. etc. Co. v. Newman, 94 Ga. 560, 21 S. E. 219; Central R. R. etc. Co. v. Denson, 84 Ga. 774, 11 S. E. 1039. Illinois: Wabash R. R. Co. v. Speer, 156 111. 244, 40 N. E. 835; Illinois Cent. R. R. Co. v. Godfrey, 71 111. 500, 22 Am. Rep. 112; Blanchard v. Lake Shore etc. Ry. Co., 126 111. 416, 9 Am. St. Rep. 630, 18 N. E. 799; Lake Shore etc. Ry. Co. v. Bodemer, 139 111. 596, 32 Am. St. Rep. 218, 29 N. E. 692; East St. Louis etc. Ry. Co. v. O'Hara, 150 111. 580, 37 N. E. 917. Indiana: Palmer v. Chicago etc. R. R. Co., 112 Ind. 250, 14 N. E. 70; Overton v. Indiana etc. Ry. Co., 1 Ind. App. 436, 27 N. E. 651; Chicago etc. Ry. Co. v. Nash, 1 Ind. App. 298, 27 N. E. 564; Penn. R. R. Co. v. Sinclair, 62 Ind. 301, 30 Afn. Rep. 185; Terre Haute etc. R. R. Co. v. Graham, 95 Ind. 286, 48 Am. Rep. 719. Iowa: Ruter t. Foy, 46 Iowa, 132 (an assault and battery case). Kansas: Kansas Pac. Ry. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730. See Mason v. Missouri Pac. Ry., 27 Kan. 83, 41 Am. Rep. 405. Kentucky: Eskridge v. Cincinnati etc. Ry. Co., 89 Ky. 367, 12 S. W. 580; Claxton v. Lexington etc. R. R. Co., 13 Bush, 636. See Louisville etc. Ry. Co. v. Earl, 94 Ky. 368, 22 S. W. 607. Massachusetts: Morrissey v. Eastern R. R. Co., 126 Mass. 377, 30 Am. Rep. 686 (not liable if the act is not done maliciously or with gross and reckless carelessness; that, of course, is not willful); John- son v. Boston etc. R. R. Co., 125 Mass. 75; Dillon v. Connecticut River Ry., 154 Mass. 478, 28 N. E. 899. Michigan: Denman v. Johnston, 85 Mich. 387, 48 N. W. 565; Bouwmeester v. Grand Rapids etc. R. R. Co., 63 Mich. 557, 30 N. W. 337. Minnesota.— Must be some intentional wrong to authorize recovery when there is contributory negligence: Carroll v. Minn. "Valley R. R. Co., 13 Minn. 30, 97 Am. Dec. 221; McMahon v. Davidson, 12 Minn. 372; Fonda v. St. Paul City Ry. Co., 71 Minn. 438, 70 Am. St Rep. 341, 74 N. W. 166. Missouri: Donahoe v. Wabash etc. Ry. Co., 83 Mo. 543. Held in Raming v. Metropolitan St. Ry. Co., 157 Mo. 477, 57 S. W. 268, that alleging willful pushing off moving car as constituting negli- gence bad for duplicity, since the same act cannot be both negli- gent and willful. Nebraska: See Chicago etc. R. R. Co. v. Hyatt, 48 Neb. 1G1, 67 N. W. 8. Nevada: Bunting v. Central Pacific R. R. Co., 16 Nev. 277. Net? Jersey: Menger v. Laur, 55 N. J. L. 205, 26 Atl. 180. § 246a NEGLIGENCE— GENERAL PRINCIPLES. 526 though the plaintiff has been guilty of contributory negligence. 60 But in Connecticut and Minnesota it is held that there can be no recovery although the defendant has been guilty of gross and culpable neg- ligence, "if the act was not intentional." 61 A very recent Wisconsin case is an interesting and instruc- tive one upon this point. There it is said that "will- ful, malicious or wanton conduct is properly beyond the scope of the term 'negligence,' as it is ordinarily understood, though the term 'gross negligence' has sometimes been extended to include it, thus leading to some misunderstanding as to what the law really is. Such conduct has no element of inadvertence, which is a necessary element of negligence." 62 And New York: Martin v. Wood, 52 Hun, 613, 5 N. Y. Supp. 274; Kain v. Larkin, 56 Hun, 79, 9 N. Y. Supp. 89 (assault); Hartfield v. Roper, 21 Wend. 273, 34 Am. Dec. 273. North Carolina: Brendle v. Spencer, 125 N. C. 474, 34 S. E. 634. Ohio: Cincinnati etc. R. Co. v. Waterson, 4 Ohio St. 424 (merely touches on the point); Hartley, J., in Kerwhaker v. Cleveland etc. R. R. Co., 3 Ohio St. 172, 188, 62 Am. Dec. 246 (dictum); P. C. C. etc. Ry. Co. v. Kelly, 12 Ohio C. Dec. 662, 12 Ohio C. C. 341. Oregon: Holstine v. Oregon etc. R. R. Co., 8 Or. 163. South Carolina: Freer v. Cameron, 4 Rich. L. 228, 55 Am. Dec. 663. Texas: Galveston etc. Ry. v. Zantzinger, 92 Tex. 365, 71 Am. St. Rep. 859, 48 S. W. 563. West Virginia: Eastburn v. Norfolk etc. R. Co., 34 W. Va. 681, 12 S. E. 819; Spicer v. Chesapeake etc. Ry. Co., 34 W. Va. 514, 12 S. E. 553. Wisconsin: Bolin v. Chicago etc. Ry. Co., 108 Wis. 333, 81 Am. St. Rep. 911, 84 N. W. 446. Federal Courts: McGhee v. Campbell, 101 Fed. 936. 60 Id. 6i Rowen v. New York etc. R. R. Co., 59 Conn. 365, 21 Atl. 1073; Birge v. Gardner, 19 Conn. 507, 50 Am. Dec. 261; Nolan v. New- York etc. R. R. Co., 53 Conn. 461, 4 Atl. 106; McMahon v. Davidson, 12 Minn. 372; Carroll v. Minn. Val. R. Co., 13 Minn. 30, 97 Am. Dec. 221. 62 Bolin r. Chicago etc. Ry. Co., 108 Wis. 333, 81 Am. St. Rep. 911, 84 N. W. 446. 527 INJURY TO RIGHT OP PERSONAL SECURITY. § 247 by the Alabama supreme court it is very properly observed that, "to constitute willful injury, there must be design, purpose, intent to do wrong and in- flict the injury"; 63 and again, that: "In wanton negli- gence, the party doing the act, or failing to act, is conscious of his conduct, and without having the in- tent to injure, is conscious, from his knowledge of existing circumstances and conditions, that his con- duct will naturally or probably result in injury." 64 § 247. Kind of Care Required to Avoid Negligence — The degree of care required to avoid negligence is measured by the duty required in the various rela- tions of men. Of the manifold duties required of persons in general nothing more can be expected here than a brief description of the various degrees of care where it is necessary to avoid personal injury, or injury to life, limb or body. Wherever, in the use of dangerous machinery or agencies, or in the use of the numerous modern inventions and discov- eries, where human life is involved or at stake, the law requires everything to be done that gives reason- able promise of the preservation of life. Two of our leading legal writers apparently make light of the degree of care required of those who take charge of human lives, as though that characterized as "utmost care" was a new invention with the courts, due to the essentially modern regard for human life, remarking that any degree of care, even though life be involved, not incompatible with the transaction of business is all that is required. 65 The rule of care adopted by the courts is designed to protect life, 63 Birmingham Ry. etc. Co. v. Bowers, 110 Ala. 328, 20 South. 345; Louisville etc. R. R. Co. v. Anchors, 114 Ala. 492, 62 Am. St. Rep. 116, 22 South. 279. 64 Louisville etc. R. R. Co. v. Webb, 97 Ala. 308, 12 South. 374. 65 Shearman and Redfield on Negligence, sees. 46, 47. § 247 NEGLIGENCE— GENERAL PRINCIPLES. 528 it is true; and if it were not stringent, the science and system of carrying human freight would not have been brought to such high standard. It is proper that life should be surrounded by all the safeguards that can be devised, and it is not unrea- sonable to exact that the rule of due care and dili- gence requires everything to be done that gives rea- sonable promise of the preservation of life, regard- less of difficulties or expense. This rule is applied in all instances where life is involved without excep- tion. 66 Common carriers of passengers by rail are required to observe "the utmost care and diligence which human prudence and foresight will suggest," to secure the safety of its passengers, which prudent persons would be likely to exercise as to themselves under like circumstances. 67 They must exercise the highest degree of care, and are responsible for the slightest neglect if any injury is caused thereby. 68 The same doctrine applies whether it be in the car- riage of passengers by railway, 69 or freight trains, 70 66 Bessemer etc. Co. v. Campbell, 121 Ala. 50, 25 South. 793, 77 Am. St. Rep. 17, and monographic note on "Diligence Required when Human Life is Involved," and numerous cases. 67 Palmer v. Delaware etc. Co., 120 N. Y. 170, 17 Am. St. Rep. 629, 24 N. E. 302; Louisville etc. R. Co. v. Minogue, 90 Ky. 369, 29 Am. St. Rep. 378, 14 S. W. 357. 68 International etc. Ry. Co. v. Welch, 86 Tex. 203, 40 Am. St. Rep. 829, 24 S. W. 390; Evansville etc. R. Co. v. Atfion, 6 Ind. App. 295, 51 Am. St. Rep. 303, 33 N. E. 469; Alabama etc. R. Co. v. Hill, 93 Ala. 514, 30 Am. St. Rep. 65, 9 South. 722 (and numerous cases cited in opinion); Dodge v. Boston etc. Steamship Co., 148 Mass. 207, 12 Am. St. Rep. 541, 19 N. E. 373; Treadwell v. Whittier, 80 Cal. 575, 13 Am. St Rep. 175, 22 Pac. 266. For other cases, see Bessemer etc. Co. v. Campbell, 121 Ala. 50, 77 Am. St. Rep. 17, 25 South. 793; Shearman and Redfield on Negligence, sec. 46; Dixon v. Pluns, 98 Cal. 384, 35 Am. St. Rep. 180, 33 Pac. 286. 69 Id. 70 Indianapolis etc. R. R. Co. v. Houst, 93 U. S. 291. 529 INJURY TO RIGHT OF PERSONAL SECURITY. § 248 or by water, 71 by passenger elevators, 72 by stage- coach and other vehicles, 73 or by street railways. 74 This is the rule all over the United States and in England, and it is a just rule because a passenger's life and safety are necessarily intrusted, in a great degree, to the carrier which transports him. So one who uses electricity in his business is required to use the highest degree of care in regard to con- struction, inspection and repair of wires and poles, and is liable for the slightest neglect. 75 § 248. Ordinary Care Defined— When Exacted.— A plaintiff suing for personal injuries to himself must show that he is without fault; that is, he must use ordinary care to avoid injury, and what this degree of care is generally depends upon the particular case, but is defined to be such care as a person of ordinary prudence and caution, according to the standard of the usual and general experience of mankind, would exercise in the same situation and circumstances as those of the person whose conduct in that regard is in question in a given case; or that degree of care which people of ordinarily prudent habits, "people in general," could be reasonably expected to exercise under the same or similar circumstances; or again, 7i Dodge v. Boston etc. Steamship Co., 148 Mass. 207, 12 Am. St Rep. 541, 19 N. E. 373; Steamboat "New World" v. King, 16 How. 469; Morrisey v. Wiggins Ferry Co., 43 Mo. 380, 97 Am. Dec. 402. 72 Treadwell v. Whittier, 80 Cal. 575, 13 Am. St. Rep. 174, 22 Pac. 266; Southern Bldg. etc. Assn. v. Dawson, 97 Tenn. 367, 37 S. W. 86, 56 Am. St. Rep. 804, and note. Also, 77 Am. St. Rep. 28, 29, note. 73 Farish v. Reigle, 11 Gratt. 697, 62 Am. Dec. 666; Tuller v. Talbot, 23 111. 357, 76 Am. Dec. 695. 74 Topeka City Ry. Co. v. Higgs, 38 Kan. 375, 5 Am. St. Rep. 754, 16 Pac. 667; 77 Am. St. Rep. 28, note, and cases. 75 Haynes v. Raleigh Gas Co., 114 N. C. 203, 19 S. E. 344, 41 Am. St. Rep. 786, and note; Perham v. Portland Gen. Elec. Co., 33 Or. 451, 72 Am. St Rep. 730, 53 Pac. 14, 24. Torts, Vol. 1—34 § 248 NEGLIGENCE-GENERAL PRINCIPLES. 530 such care as an ordinarily careful person would ex- ercise under like circumstances. 76 Where human life is not at stake, and especially in the relation be- tween pedestrians and vehicles, 'between common car- riers and pedestrians, and in all situations where a mere personal injury is likely to occur, ordinary care is the degree required. For instance, railway com- panies are expected to use ordinary care to avoid in- juring persons on foot and traveling by vehicle. Railways are bound to use reasonable precaution in their management of trains such as ordinary pru- dence demands to avoid injury to persons crossing their tracks (having due regard to their duty toward their passengers) at a place which they have per- mitted the public to use for a long period of time. 77 And so a motorman on a street-car is bound to use ordinary care to avoid injury to foot-travelers cross- ing in front of the car. 78 As has been well said, the degree of vigilance which the law exacts, by the re- quirement of ordinary care, must vary with the prob- able consequences of negligence, and also with the command of means to avoid injuring others possessed 76 Dreher v. Fitchburg, 22 Wis. 675, 99 Am. Dec. 91, note, p. 96, and cases; Winters v. Kansas City Cable Ry. Co., 99 Mo. 509, 17 Am. St. Rep. 591, 12 S. W. 652; Tetherow v. St. Joseph etc. Ry. Co., 98 Mo. 74, 14 Am. St. Rep. 617, 11 S. W. 310; Driscoll v. Market St. Cable Ry., 97 Cal. 553, 33 Am. St. Rep. 203, 32 Pac. 591; Swann v. Brown, 6 Jones, 150, 72 Am. Dec. 568; Ashbury v. Charlotte Rail- way etc. Co., 125 N. C. 568, 34 S. E. 654. 77 Harriman v. Railway Co., 45 Ohio St. 11, 4 Am. St. Rep. 507, note, and. cases; Barry y. New York Cent. etc. R. R. Co., 92 N. Y. 289, 44 Am. Rep. 377; Campbell v. Boyd, 88 N. C. 129, 43 Am. Rep. 740; Davis v. Chicago etc. R. R. Co., 58 Wis. 646, 44 Am. Rep. 667, 17 N. W. 406; Houston etc. Ry. v. Boozer, 70 Tex. 530, 8 Am. St. Rep. 615, 8 S. W. 119; Byrne v. New York etc. R. R. Co., 104 N. Y. 362, 58 Am. Rep. 512; Troy v. Cape Fear etc. R. R. Co., 99 N. C. 298, 6 Am. St. Rep. 521, 6 S. E. 77. 78 Schmidt v. St. Louis etc. R. R. Co., 149 Mo. 269, 73 Am. St. Rep. 380, 50 S. W. 921. 531 INJURY TO EIGHT OF PERSONAL SECURITY. § 249 by the person on whom the obligation is imposed. Under some circumstances a very high degree of diligence is demanded by the requirement of ordinary care. 79 There is a familiar exception to the test of ordinary care, as to what persons customarily do un- der similar circumstances, notably where the doing of an act is so obviously dangerous as to constitute negligence as matter of law, as walking upon railway tracks without looking or listening, or jumping on or off from moving cars. 80 § 249. Standard of Duty, How Fixed.— The standard of duty is determined by what ordinarily prudent persons do under similar circumstances — that is, by such care, prudence, and forethought as duty, under the circumstances, requires should be exercised, which is fixed either by statutory, municipal or com- mon law. Whether or not the measure of duty to be observed under any circumstances may or may not be fixed by private rules is questionable, though such rules promulgated by a master for the govern- ment of his servants, have been held by some courts to be admissible as evidence, in actions by the ser- vant against his master, upon the theory that they are in the nature of an admission by the party mak- ing the rule that reasonable care required the exer- cise of all the precautions therein prescribed. 81 And it has been held that the nonobservance of rules by a servant constitutes contributory negligence. 82 But 79 Philadelphia etc. R. R. Co. v. Kerr, 25 Md. 531; Kelsey v. Bar- ney, 12 N. Y. 425. 80 Douglass v. Chicago etc. Ry. Co., 100 Wis. 405, 69 Am. St. Rep. 930, 76 N. W. 356; George v. Mobile etc. R. R. Co., 109 Ala. 245, 19 South. 784; Glover v. Scotten, 82 Mich. 369, 46 N. W. 936. 81 Georgia R. R. Co. v. Williams, 74 Ga. 723; Lake Shore etc. Ry. Co. v. Ward, 135 111. 511, 26 N. E. 520. 82 2 Thompson on Negligence, sec. 1763; Lyon v. Detroit etc. R. R. Co., 31 Mich. 429. § 250 NEGLIGENCE— GENERAL PRINCIPLES. 532 it would seem that the true view is not to regard the rule per se as prescribing the standard of duty, and its violation necessarily negligent. And it cer- tainly will be conceded, in the language of an au- thority, that "a person cannot, by the adoption of private rules, fix the standard of his duty to others. That is fixed by law, either statutory or common. Such rules may require more, or they may require less, than the law requires; and whether a certain course of conduct is negligent, or the exercise of rea- sonable care, must be determined by the standard fixed by law, without regard to any private rules of the party." Such a doctrine would render evidence of the rules inadmissible. 83 § 250. Contributory Negligence— General Doctrine — Negligence in the plaintiff is the same thing as neg- ligence in the defendant except that it is called con- tributory negligence. A plaintiff coming into court complaining of an injury caused by the negligence of the defendant must show that he has conducted him- self under the circumstances as a person of ordinary care and prudence would have done, contributory negligence being merely the failure of a person to exercise reasonable care, under all the circumstances, in a given case, such care as a reasonably prudent person would have exercised under the circum- stances, which contributes, in some degree, as an efficient cause to the injury of which plaintiff com- plains. 84 It seems hardly justifiable in this work to 83 Fonda v. St. Paul City Ry., 71 Minn. 438, 70 Am. St. Rep. 341, 74 N. W. 166; Philadelphia etc. R. R. Co. v. Spearen, 47 Pa. St. 300, 86 Am. Dec. 544. 84 Beach on Contributory Negligence, sec. 7; 1 Thompson on Negligence, sec. 169. Good definitions in Russell v. Monroe, 116 N. C. 720, 47 Am. St. Rep. 823, 21 S. E. 550; Flannagan v. St. Paul etc. Ry. Co., 68 Minn. 300, 71 N. W. 370; North Birmingham Ry. Co.. v. Calderwood, 89 Ala. 247, 18 Am. St. Rep. 105, 7 South. 360. 533 INJURY TO RIGHT OF PERSONAL SECURITY. § 250 enter upon a discussion of the underlying theory and general principles of the doctrine of contributory negligence, some references merely being furnished, S5 the question in which we are most interested, from a practical standpoint, being, when such negligence on the part of the plaintiff will bar recovery by him. The doctrine of contributory negligence and proxi- mate cause are so closely allied as to be dependent on each other. The true question in all cases is whether there was negligence on the part of the plaintiff contributing directly as a proximate cause of the injury. If there was, there can be no recov- ery. If not proximate, it does not preclude recov- ery. 86 If the negligence of plaintiff and defendant is concurrent or contemporaneous, and the fault of each operates directly to cause the injury, there can be no recovery. 87 But when the acts of the defend- ant are willful and intentional, or when there has been willful and wanton negligence, and plaintiff too has been guilty of negligence, the former is consid- ered in law as the proximate cause of the injury, and the negligence of the plaintiff only the remote cause. This is, in reality, the doctrine of willful and wan- ton negligence. 88 A doctrine, in effect the same as that just stated, is laid down by some courts and writers as being perfectly well settled that a plain- tiff may recover if the defendant might, by the ex- 85 Beach on Contributory Negligence, sees. 8-13; article, 26 Can. L. J. 30. 86 Schweinfurth v. Cleveland etc. Ry. Co., 60 Ohio St. 215, 54 N. E. 89. 87 Fonda v. St. Paul City Ry. Co., 71 Minn. 438, 70 Am. St. Rep. 341, 74 N. W. 166; Wilmot v. Howard, 39 Vt. 447, 94 Am. Dec. 338. 8S Fonda v. St. Paul City Ry. Co., 71 Minn. 438, 70 Am. St. Rep. 341 74 N. W. 166. See cases cited ante, sec. 246, note; Bolin v. Chicago etc. Ry. Co., 108 Wis. 333, 81 Am. St. Rep. 911, 84 N. W. 446; Highland Ave. etc. R. R. Co. v. Robbins, 124 Ala. 113, 82 Am. St. Rep. 153, 27 South. 422. § 2oO NEGLIGENCE— GENERAL PRINCIPLES. 534 ercise of ordinary care, have avoided the injury and the consequences of plaintiff's negligence. So where the defendant ought, by the observance of ordinary care, to have discovered the danger in which plain- tiff's negligence placed him, in time to have avoided injury; or, as it is stated by some, recovery may be had notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was more immediately caused by the defendant's omis- sion, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding in- jury. 89 And again, a different way of stating the same doctrine is that "if both parties are negligent, the true rule is, that the party who last has a clear opportunity to avoid an accident, notwithstanding the negligence of his opponent, is considered solely responsible." 90 In other words, as it is sometimes stated, if the negligence of a plaintiff does not occur at the time of the accident, but is prior thereto, it is not mutual with that of the defendant, and is not one of the proximate causes of the injury. 91 If we give to contributory negligence its technical, accurate meaning, rejecting the idea of comparative 89 Schweinfurth v. Cleveland etc. Ry. Co., 60 Ohio St. 215, 54 N. E. 89; Shearman and Redfleld on Negligence, sec. 94; Fonda v. St Paul City Ry. Co., 71 Minn. 438, 70 Am. St. Rep. 341, 74 N. W. 166; Keefe v. Chicago etc. Ry. Co., 92 Iowa, 182, 60 N. W. 503, 54 Am. St. Rep. 542; Tully v. Philadelphia etc. R. E. Co., 2 Penne. (Del.) 537, 82 Am. St. Rep. 425, 47 Atl. 1019; Thompson v. Salt Lake etc. Co., 16 Utah, 281, 67 Am. St. Rep. 621, 52 Pac. 92. 90 Thompson v. Salt Lake etc. Transit Co., 16 Utah, 281, 67 Am. St. Rep. 621, 52 Pac. 92; Shearman and Redfield on Negligence, sec. 99; Keefe v. Chicago etc. Ry. Co., 92 Iowa, 182, 54 Am. St. Rep. 542, 60 N. W. 503; Pickett v. Wilmington etc. R. R. Co., 117 N. C. 616, 53 Am. St. Rep. 611, 23 S. E. 264; Fonda v. St. Paul City Ry. Co., 71 Minn. 438, 70 Am. St. Rep. 341, 47 N. W. 166. 91 Kilpatrick v. Grand Trunk Ry. Co., 72 Vt. 263, 82 Am. St. Rep. 939, 47 Atl. 827; Vicksburg etc. R. R. Co. v. Patton, 31 Miss. 156, 66 Am. Dec. 552. 535 INJURY TO RIGHT OF PERSONAL SECURITY. § 250 negligence, it is that negligence which constitutes the proximate cause of the injury. A plaintiff may be guilty of the want of ordinary care, but this does not play an important part in a cause, and. is not a de- fense unless it is a proximate cause of the injury; this is the only instance in which the law gives any efficient recognition of plaintiff's negligence. It is only when the contributory acts of the plaintiff con- stitute the proximate, and are not the remote, cause, that they operate as a defense barring recovery. 92 But it is said that, while it cannot be invoked as a defense unless it is a proximate cause, it need not be the sole cause, it being sufficient if it be one of two or more concurring efficient causes. 93 That may be true, as proximate cause presupposes another neg- ligent act. It may be stated that it must be the sole efficient cause. The two essential elements in contributory negligence are a want of ordinary care on the part of the plaintiff, and a causal connection between that and the injury complained of. 94 And herein lies the difficulty in arriving at a satisfactory solution of the legal effect of the contributory negli- gence of a plaintiff when we come to harmonizing the different expressions found in the decisions. In 82 Troy v. Cape Fear etc. R. Co., 99 N. C. 298, 6 Am. St. Rep. 521, 6 S. E. 77; Hurt v. St. Louis etc. Ry. Co., 94 Mo. 255, 4 Am. St. Rep. 374, 7 S. W. 1; West Mahonoy Twnp. v. Watson, 116 Pa. St 344, 2 Am. St. Rep. 604, 9 Atl. 430; North Birmingham St. Ry. Co. v. Calderwood, 89 Ala. 247, 18 Am. St. Rep. 105, 7 South. 360; Dickson v. Hollister, 123 Pa. St. 421, 10 Am. St. Rep. 533, 16 Atl. 184; Smith v. Irwin, 51 N. J. L. 507, 14 Am. St. Rep. 699, 18 Atl. 852; Smithwick v. Hall etc. Co., 59 Conn. 261, 21 Am. St. Rep. 104, 21 Atl. 924; Cleveland etc. R. R. Co. v. Crawford, 24 Ohio St. 631, 15 Am. Rep. 633. 93 Western Ry. Co. v. Sistrunk, 85 Ala. 352, 5 South. 79; North Birmingham St. Ry. v. Calderwood, 89 Ala. 247, 18 Am. St. Rep. 105, 18 South. 105. 94 Hollenback v. Dingwell, 16 Mont. 335, 50 Am. St. Rep. 502, 40 Pac. 863. £ 250 NEGLIGENCE— GENERAL PRINCIPLES. 536 placing the alleged negligence of plaintiff on one side of the scale and that of defendant on the other, to determine which is the efficient cause, it leads us into a comparison which is not favored in law. Again, it is not logical to say that contributory negligence is not a defense unless it is an efficient cause of the injury, and as a variation of the rule, to say that it need not be the sole cause, or that "want of ordinary care upon the part of an injured person, however slight, precludes recovering com- pensation for his injury from another who contrib- uted thereto by his negligence." 95 "Want of ordi- nary care, however slight," does not mean anything, because there is no slight ordinary care. Generally, ordinary care is the standard required of both par- ties, and if we measure the conduct of both parties by this standard, and then settle upon the rule that the law will only regard the acts of either which are found by the jury to be the efficient cause of the in- jury, then there will be no difficulty. Another stum- bling-block in the way of working out the rights of the parties according to this rule, is the "scintilla rule" prevailing in some jurisdictions, viz., that wher- ever there is any evidence, however slight, tending to support the allegations of either side, it should be submitted to the jury. This rule is not sound, and may, under certain conditions of evidence, tend to con- fuse. It is said that to justify a nonsuit on the ground of contributory negligence, the evidence against the plaintiff must be so clear as to leave no room for doubt, and all material facts must be conceded or established beyond controversy. 96 95 Bolin v. Chicago etc. Ry. Co., 108 Wis. 333, 81 Am. St. Rep. 911, 84 N. W. 446. 96 West Chicago St. Ry. v. Liderman, 187 111. 463, 79 Am. St Rep. 226, 58 N. E. 367. 537 INJURY TO RIGHT OF PERSONAL SECURITY. §§ 251, 252 § 251. Comparative Negligence.— The mere state- ment of the general doctrine of contributory negli- gence negatives the rule of comparative negligence, which is: Where both plaintiff and defendant have been guilty of negligence, and that of the latter is greater than that of the former, or where the neg- ligence of plaintiff is slight and that of defendant is great, he is liable. 97 We find some confusion in the use of the terms "gross," "willful" and "wanton," as though they were synonymous, conveying the impres- sion that a plaintiff may recover notwithstanding his own contributory negligence, provided the negli- gence of the defendant was gross. Looking at it in this way, it is claimed, would be to adopt the doc- trine of comparative negligence, 98 which, as one writer states, in reality only prevails in Illinois. 99 But it has been repudiated in this state, where it was recognized for a time, 100 and it is believed that it does not find a foothold in any jurisdiction, and should not, for the reasons stated under the head of "Contributory Negligence." 101 § 252. Proximate Cause. — Operative negligent acts must be the proximate cause of the injury complained of. That the law regards the immediate and not the remote cause is fundamental and elementary. There are thousands of decisions expounding the maxim underlying the doctrine of proximate cause — Causa proxima, non remota, spectatur — from Davies v. Mann, 102 down to the present time. It is the f ounda- 97 See 1 Thompson on Negligence, sec. 274 et seq. 98 Fonda v. St. Paul etc. Ry., 71 Minn. 438, 70 Am. St. Rep. 341, 74 N. W. 166. 99 1 Thompson on Negligence, sees. 259-286. 100 West Chicago St. R. R. Co. v. Liderman, 187 111. 463, 79 Am. St. Rep. 226, 58 N. E. 367. 101 Ante, sec. 250. 102 10 Mees. & W. 545. § 253 NEGLIGENCE— GENERAL PRINCIPLES. 538 tion of all liability where the parties are mutually at fault, and the law recognizes no gradations or variations of fault, except the efficient cause. The negligence of the injured party to preclude him must be the immediate or proximate cause. The law is content with the immediate cause, being the act which directly produces the injury, the natural and probable consequence of a negligent act, uncontrolled by time or distance, but determined by the succesr sion of events, such a consequence as, under the sur- rounding circumstances of the case, ought to have been foreseen by the wrongdoer as likely to flow from his act; such as, according to common experience and the usual course of events, might reasonably have been anticipated; 103 not necessarily the precise form of the injury complained of, 104 but unbroken by any efficient intervening cause. 105 For the purposes of this work the writer is content to refer to the most excellent treatment of this branch of the wrong of negligence by the authorities cited in the note. 106 § 253. Imputed Negligence. — The so-called doctrine of imputed negligence is imputing to an infant of ten- der years, incapable of avoiding injury, or to an in- 103 West Mahonoy Twnp. v. Watson, 116 Pa. St. 344, 2 Am. St. Rep. 604, 9 Atl. 430; Hoadley v. Northern Transp. Co., 115 Mass. 304, 15 Am. Rep. 106; Pennsylvania R. R. Co. v. Kerr, 62 Pa. St. 353, 1 Am. Rep. 431. 104 Pennsylvania R. R. Co. v. Hope, 80 Pa. St. 373, 21 Am. Rep. 100. See, also, 36 Am. St. Rep. 810, note. 105 Goodlander Mill Co. v. Standard Oil Co., 63 Fed. 400. loe Gilson v. Delaware etc. Canal Co., 65 Vt. 213, 36 Am. St. Rep. 802, 26 Atl. 70; and note on "Proximate and Remote Cause in Cases Involving Wrongful Acts," by Mr. Freeman, 36 Am. St. Rep. 807-861, which covers all possible phases of the question; 1 Thomp- son on Negligence, sees. 43-86. To enable one to recover from the negligent conduct of another, it must appear that the negligence of defendant was the proximate cause of the injury: Andrews v. Kinsel, 114 Ga. 390, 88 Am. St Rep. 25, 40 S. E. 300. 539 INJUKY TO RIGHT OF- PERSONAL SECURITY. § 254 sane person, the negligence of the parent or custo- dian in failing to observe ordinary care in the exer- cise or control of the custody of such infant. In other words, the acts of the parent, his keeper in law, and to whose discretion in the care of his person he is confided, are held to be the act of the child; the latter not having the discretion necessary for his personal protection, the parent is held in law to ex- ercise it for him. No age is fixed by law when the infant shall be deemed capable of taking care of himself, 107 but the rule that is usually applied in determining his responsibility for his own torts and crimes is to look to his capacity to distinguish right from wrong. 108 Hartfield v. Roper, 21 Wend. 615, 34 Am. Dec. 273, was the first American case an- nouncing the foregoing doctrine which operates as a bar to an action for an injury to the child, in his own name, and it has been adopted and followed in a few of the states, viz., Delaware, Massachusetts, Maine, Maryland, Minnesota and Indiana, and repudiated in the others. 109 § 254. Negligence of Children.— In determining when infants are guilty of negligence making them liable in an action, or preventing recovery by them, we look to capacity, and not to age, the question al- ways being one of fact for the jury under appropri- ate instructions. It cannot be expected that children can exercise the same degree of care and circumspec- 107 Mangam v. Brooklyn R. Co. (1868), 38 N. Y. 455, 98 Am. Dec. 66; Hartfield v. Roper, 21 Wend. 615, 34 Am. Dec. 273; McLain v. Van Zandt, 39 N. Y. Super. Ct. 353. 108 See ante, sec. 25; Hartfield v. Roper, 21 Wend. 615, 34 Am. Dec. 273; McMahon v. City of New York, 33 N. Y. 642. 109 1 Thompson on Negligence, sees. 292, 293, where the authori- ties are collected. § 254 NEGLIGENCE— GENERAL PRINCIPLES. 540 tion that an adult does. 110 Ordinary care cannot be appropriately used to describe the kind of care exact- ed of infants, nor can the comparative degrees — ex- traordinary, ordinary, and slight — be fitly applied to them in reference to measures to be observed by them for their own security, 111 although the term "ordinary care" is sometimes used in this connection, it being considered that they must exercise ordinary care to avoid injuries (and causing injury), but that ordinary care for them is that degree of care which children of the same age, of ordinary care and prudence, are ac- customed to exercise under similar circumstances. 112 The rule, it would seem, had better be stated that an infant is expected or required by law to exercise such care, prudence, diligence and foresight, under the conditions and circumstances, as may be reasonably expected from one of his age or capacity, or such pru- dence as one of his years may be expected to pos- sess. 113 There is, of course, an age when the law pre- 110 Cooper v. Lake Shore etc. Ry., 66 Mich. 261, 11 Am. St. Rep. 482, 33 N. W. 306; Lynch v. Smith, 104 Mass. 52, 6 Am. Rep. 188; Pratt Coal Co. v. Brawley, 83 Ala. 371, 3 South. 551, 3 Am. St. Rep. 751, note; Kay v. Penn. R. R. Co., 65 Pa. SI. 269, 3 Am. Rep. 628; Rockford etc. R. R. Co. v. Delaney, 82 111. 198, 25 Am. Dec. 308; Keffe v. Milwaukee etc. R. R. Co., 21 Minn. 207, 18 Am. Rep. 393; Moebus v. Herrman, 108 N. Y. 349, 2 Am. St. Rep. 440, 15 N. E. 415; Houston etc. Ry. Co. v. Boozer, 70 Tex. 530, 8 Am. St. Rep. 615, 8 S. W. 119; Rolling Mill v. Corrigan, 46 Ohio St. 283, 15 Am. St. Rep. 596, 20 N. E. 466. in Western etc. R. R. Co. v. Young, 81 Ga. 397, 12 Am. St. Rep. 320, 7 S. E. 912. 112 Rolling Mill Co. v. Corrigan, 46 Ohio St 283, 15 Am. St. Rep. 596, 20 N. E. 466; Beach on Contributory Negligence, sec. 46; Lynch v. Smith, 104 Mass. 52, 6 Am. Rep. 188. 113 Plumley v. Birge, 124 Mass. 57, 26 Am. Rep. 645; Pratt Coal Co. v. Bramley, 83 Ala. 371, 3 Am. St. Rep. 751, 3 South. 551; Daley v. Norwich etc. St. R. Co., 26 Conn. 591, 68 Am. Dec. 413; Georgia etc. R. R. Co. v. Evans, 87 Ga. 673, 13 S. E. 580; Chicago etc. R. R. Co. v. Eininger, 114 III. 79, 29 N. E. 196; McMillan v. Burlington etc. R. R. Co., 46 Iowa, 231; Keller v. Gaskell, 20 Ind. 641 INJURY TO RIGHT OF PERSONAL SECURITY. § 254 sumes that a child is, as matter of law, incapable of committing an act of negligence but as to when this age is the courts differ. All agree that a very young child will conclusively be presumed incapable of a negligent act. 114 Some decisions maintain that this presumption prevails as to children between seven and fourteen, 115 while others deny this doctrine, leav- ing it to the jury to determine the question by the general rule as to capacity, which is the reasonable rule. 116 The true rule is to determine the matter, by looking solely to the capacity, after passing the pre- sumptive line which is unanimously agreed upon, 117 measuring his capability in much the same way as if charged with crime, 118 although it must be conceded that an infant at a given age might be capable of ap- preciating certain danger, but incapable of entertain- ing criminal intent essential in some crimes. App. 502, 50 N. E. 363; Lynch v. Smith, 104 Mass. 52, 6 Am. Rep. 188; Ridenhour v. Kansas City Cable Ry. Co., 102 Mo. 270, 13 S. W. 889, 14 S. W. 760; Swift v. Staten Island R. Co., 123 N. Y. 645, 25 N. E. 378; Omaha etc. R. R. Co. v. Morgan, 40 Neb. 604, 59 N. W. 81; Queen v. Dayton etc. Co., 95 Tenn. 458, 49 Am. St. Rep. 935, 32 S. W. 460; Greenway v. Conroy, 160 Pa. St. 185, 28 Atl. 692, 40 Am. St Rep. 715, and note; Foley v. California Horseshoe Co., 115 Cal. 184, 56 Am. St. Rep. 87, 47 Pac. 42. 114 Keyser v. Chicago etc. Ry. Co., 56 Mich. 559, 56 Am. Rep. 405, 23 N. W. 311 (two years, six months) ; note to Freer v. Cameron, 4 Rich. 228, 55 Am. Dec. 663, and cases cited; note to West- brook v. Mobile etc. R. R. Co., 14 Am. St. Rep. 590, 591; note to Barnes v. Shreveport City R. Co., 49 Am. St. Rep. 406; Consolidated Tr. Co. v. Scott, 58 N. J. L. 682, 55 Am. St. Rep. 620, 34 Atl. 1094. us Westbrook v. Mobile etc. R. R. Co., 66 Miss. 560, 14 Am. St. Rep. 590, 6 South. 321; Roanoke v. Shull, 97 Va. 419, 75 Am. St. Rep. 791, 34 S. E. 34. 116 Freer v. Cameron, 4 Rich. 228, 55 Am. Dec. 663; Western R. R. Co. v. Young, 81 Ga. 397, 12 Am. St. Rep. 320, 7 S. E. 912; Strawbridge v. Bradford, 128 Pa. St. 200, 15 Am. St. Rep. 670, 18 Atl. 346. 117 Ante, sea 113. lis Rockford etc. R. R. Co. v. Delaney, 82 111. 198, 25 Am. Rep. 308; Chicago etc. R. Co. v. Becker, 76 111. 25. I 25S NEGLIGENCE— GENERAL PRINCIPLES. 542 § 255. Violation of Statute or Ordinance.— Is the violation of a statute or municipal ordinance pre- scribing certain duties to be considered per se, as mat- ter of law, an act of negligence, or is such an act, together with the fact that there is a statute or an ordinance, to be submitted to the jury, for them to de- termine from all the evidence whether the defendant has been guilty of negligence? Unfortunately, there is some confusion of ideas upon this proposition (which, it seems, ought not to be), due, perhaps, to getting before the jury the question of the contribu- tory negligence of the defendant, and the doctrine of proximate cause, so that the jury are in a position to intelligently determine the liability. There can be no cause of action without the violation of a duty, and "it is immaterial whether the duty is one imposed by the rule of common law requiring the exercise of ordi- nary care not to injure another, or is imposed by statute designed for the protection of others. In either case, the failure to perform the duty constitutes negligence, and renders the party liable for injuries resulting from it. The only difference is, that in the one case the measure of legal duty is determined upon common-law principles, while in the other, the statute fixes it, so that the violation of the statute constitutes conclusive (perhaps better to say, prima facie) evidence of negligence; or, in other words, is negligence per se. The action in the latter case is not a statutory one, nor does the statute give the right of action in any other sense, except that it makes an act negligent which otherwise might not be such, or, at least, is only evidence of negligence. All that the statute does is to establish a fixed standard by which the fact of negligence may be determined. The gist of the ac- tion is still negligence, or the nonperformance of a 543 INJUBY. TO BIGHT OF PEESONAL SECUBITY. | 255 legal duty to the person injured." 119 By far the greater number of decisions in most of the states are committed to the foregoing doctrine, that the viola- tion of a statutory duty is per se negligence, and the party guilty is liable if such negligence is the proxi- mate cause of the injury. 120 "It has often been held that a violation of law at the time of an accident, by one connected with it, is evidence of negligence, but not conclusive." 121 It should be remembered that so long as the legislative power keeps within its consti- 119 Osborne v. McMasters, 40 Minn. 103, 12 Am. St. Bep. 698, 41 N. W. 543. 120 Western etc. B. B. Co. v. Young, 81 Ga. 397, 12, Am. St. Bep. 320, 7 S. E. 912 (statute); Osborne v. McMasters, 40 Minn. 103, 41 N. W. 543, 12 Am. St. Rep. 698, and note; Virginia Midland By. Co. v. White,^84 Va. 498, 5 S. E. 573. 10 Am. St. Rep. 874 (ordinance); Queen v. Dayton Coal & Iron Co., 95 Tenn. 458, 49 Am. St. Bep. 935, 32 S. W. 460; Bott v. Pratt, 33 Minn. 323, 53 Am'. Bep. 47, and note; Hays v. Gainesville St. By., 70 Tex. 602, 8 Am. St. Bep. 624, 8 S. W. 491; Siemers v. Eisen, 54 Cal. 418; Higgins v. Deeney, 78 Cal. 578, 21 Pac. 428; Driscoll v. Market St. Ry. Co., 97 Cal. 553, 33 Am. St. Bep. 203, 32 Pac. 592; Katzenberger v. Lawo, 90 Tenn. 235, 25 Am. St. Bep. 681, 16 S. W. 611; Weber v. Kansas City etc.. By. Co., 100 Mo. 194, 18 Am. St. Bep. 541, 12 S. W. 804, 13 S. W. 587; McMarshall v. Chicago~etcTBy. Co., 80 Iowa, 757, '20 Am. St. Bep. 445, 45 N. W. 1065; Baltimore etc. E. B. Co. v. State, 29 Md. 252, 96 Am. Dec. 528; Jones v. Belt, 8 Houst. 562, 32 Atl. 723; Den- ver etc. By. Co. v. Bobbins, 2 Colo. App. 313, 30 Pac. 261; Correll v. Burlington etc. By. Co., 38 Iowa, 120, 18 Am. Bep. 22; Tobey v. Burlington etc. By. Co., 94 Iowa, 256r 62 N. W. 761 (kicking cars); Clements v. Louisiana Electric Light Co., 44 La. Ann. 692, 32 Am. St. Bep. 348, li South. 51; Sowles v. Moore, 65 Vt. 322, 26 Atl. 629; Taylor v. Lake Shore etc. E. B. Co., 45 Mich. 74, 40 Am. Bep. 457, 7 N. W. 728; Parker v. Barnard, 135 Mass. 116, 46 Am. Bep. 450; Heeny v. Sprague, 11 E. I. 456, 23 Am. Eep. 502; Philadelphia etc. E. E. Co. v. Ervin, 89 Pa. St. 71, 33 Am. Bep. 726. But see Foote v. American Product Co., 195 Pa. St. 190, 78 Am. St. Bep. 806, 45 Atl. 934; Street By. Co. v. Murray, 53 Ohio St. 570, 42 N. E. 596; Newcomb v. Boston Prot. Dept, 146 Mass. 596, 4 Am. St. Eep. 354, 16 N. E. 555. 121 Newcomb v. Boston Prot Dep., 146 Mass. 596, 4 Am. St. Eep. 354, 16 N. E. 555; Hanlon v. South Boston Horse E. E. Co., 129 Mass. 310; Damon v. Scituate etc., 119 Mass. 66, 20 Am. Bep. 315. § 255 NEGLIGENCE— GENERAL PRINCIPLES. 544 tutional limitations, it may determine upon any stan- dard of duty to be observed by its citizens, which is absolutely binding upon courts and juries. It fol- lows, therefore, that whenever complaint is made of the violation of a statutory duty as constituting neg- ligence, the questions for the jury to determine are these: 1. Did the defendant violate the duty? 2. Was such violation the proximate cause of the injury? 3. Or was the defendant guilty of negligence which di- rectly contributed to the injury as the efficient cause? To say to the jury that they may consider the statute or ordinance, together with all the evidence, and if upon the whole evidence they find that the defendant is guilty of negligence which proximately caused the injury, then they may find for plaintiff, would be plac- ing it in the power of the jury to override the legisla- tive mandate. And this is the logical sequence of the cases dissenting from the doctrine above stated. 15 * 3 Some courts hold that it constitutes negligence per se to violate a city ordinance, such as running a train at a greater rate of speed than is prescribed by city or- dinance. 123 Other authorities merely permit the fact of the violation of an ordinance to go to the jury as 122 Knupple v. Knickerbocker Ice Co., 84 N. Y. 488 (ordinance); Massoth v. Delaware Canal Co., 64 N. Y. 524 (ordinance, considered an open question). But later case, McRickard v. Flint, 114 N. Y. 222, 21 N. E. 153 (ordinance), considers the violation prima facie negligence: 1 Thompson on Negligence, sec. 11; Foote v. American Product Co., 195 Pa. St. 190, 78 Am. St. Rep. 806, 45 Atl. 934; Leder- man v. Pennsylvania R. R. Co., 165 Pa. St. 118, 44 Am. St. Rep. 644, 30 Atl. 725. 123 Hutchinson v. Missouri Pac. Ry. Co., 161 Mo. 246, 84 Am. St. Rep. 710, 61 S. W. 635, 652, and many other cases in this state; Keim v. Union Ry. & Tr. Co., 90 Mo. 314, 2 S. W. 427; Booth on Street Railway, sec. 320; Mueller v. Milwaukee St. Ry. Co., 86 Wis. 340, 56 N. W. 914; 1 Shearman and Redfield on Negligence, sec. 437; Riley v Salt Lake Rapid Transit Co., 10 Utah, 428, 37 Pac. 683 (it is merely evidence of negligence). 545 INJURY TO RIGHT OF PERSONAL SECURITY. § § 256, 257 evidence of negligence, and do not consider such vio- lation negligence as matter of law. 124 § 256. Questions of Negligence, How Decided.— The general formula for the determination of the fact of negligence in a given case is this: When a duty is de- fined, and the evidence is not disputed, and there is no other reasonable inference but that the same has been violated, the failure to perform the duty being negligence, may be so declared by the court. The court can only pronounce an act as constituting negli- gence per se, or as matter of law, when no other infer- ence can be fairly and reasonably drawn from the tes- timony. But where the measure of duty is unvary- ing, when a higher degree of care is required under some circumstances than under others, and where both duty and the extent of performance are to be as- certained as facts, the jury alone can determine what is negligence in the case, and whether it has been proved. 125 Even where the duty is plain, but the facts are disputed, or are such that different minds might arrive at different conclusions therefrom, the question is for the jury. 126 § 257. Negligence Causing Fright— Mental Suffering, etc., Whether Actionable. — Many interesting cases have arisen where the question as to the recovery of dam- ages for alleged injury caused by fright has been in- volved, both where this was the gist of the action, as well as where it has been an incident thereof. The 124 Meek v. Pennsylvania R. Co., 38 Ohio St. 632;' Hart v. Devereaux, 41 Ohio St. 565. 125 Arnold v. Pennsylvania Ry. Co., 115 Pa. St. 135, 8 Atl. 213, 2 Am. St. Rep. 542, and note, pp. 545, 546, where the authorities are collected; Tetherow v. St. Joseph etc. Ry. Co., 98 Mo. 617, 6 S. W. 310, 14 Am. St. Rep. 617, and note. 126 Id. Torts, Vol. 1—35 § 257 NEGLIGENCE— GENERAL PRINCIPLES. 546 rule was long ago laid down in England that no value by way of compensation in damages can be placed upon mental suffering, mental pain or anxiety, where it does not result from some personal injury, even though it be caused by negligence, 127 and this rule has been universally adopted in this country. The ruling principle upon which recovery is denied in such cases has been well stated in the following language: "If the right of recovery in this class of cases should be once established, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection, and where the damages may rest upon mere conjecture or specu- lation. The difficulty which often exists in cases of alleged physical injury in determining whether they exist, and if so, whether they were caused by the neg- ligent act of the defendant, would not only be greatly increased, but a wide field would be opened for ficti- tious or speculative claims. To establish such a doc- trine would be contrary to principles of public pol- icy." 128 This doctrine is based upon the theory that such injuries are not the proximate result of the negli- gence of the defendant. While the broad principle upon which the rule is based appears to be a necessary precaution to guard against unjust litigation, a critical examination of some of the cases discloses a shadowy border line be- tween proximate and remote cause in such cases, and the allowance of relief in some cases would seem to promote justice and right, while in others the rule above stated operates justly. For example, it has been held that there can be no action on account of fear and apprehension for the personal safety of a 127 Lynch v. Knight, 9 H. L. Cas. 577. 128 Martin, J., Mitchell v. Rochester Ey. Co., 151 N. Y. 107, 56 Am. St. Rep. 604, 45 N. E. 354. 547 INJURY TO BIGHT OF PERSONAL SECURITY. § 257 person and his family, on account of blasting near one's lands and buildings; 129 and so where railway cars, in consequence of a railway collision, are turned over and fall upon the dwelling-house of another, en- dangering life, and subjecting the occupants to great fright, nervous excitement and distress; 130 and so where one lawfully shoots a dog in the highway, which frightens a woman standing near by; 131 or where a team of horses becomes frightened by a rail- way train, thereby putting the occupants in fear and fright as to their own personal safety, resulting in mental suffering, vexation and distress in mind. 132 These and other similar cases may be furnished, illus- trative of the general rule above stated. Serious results, physically, from mere fright caused by the negligent acts of others is of frequent occur- rence, as for instance, nervous disease, blindness, in- sanity, miscarriage, and the like, but the rule is stead- fastly maintained that whenever the right of action is based upon mere fright, unaccompanied by immedi- ate personal injury, there can be no recovery. 133 129 Wyman v. Leavitt, 71 Me. 227, 36 Am. Rep. 303; Fox v. Borkey, 126 Pa. St. 164, 17 Atl. 604. 130 Ewing v. Pittsburg etc. Ry. Co., 147 Pa. St. 40, 30 Am. St. Rep. 709, 23 Atl. 340. 131 Renner v. Canfield, 36 Minn. 90, 1 Am. St. Rep. 654, 30 N. W. 435. 132 Gulf etc. Ry. Co. v. Trott, 86 Tex. 412, 40 Am. St. Rep. 866, 25 S. W. 419. 133 Mitchell v. Rochester Ry. Co., 151 N. Y. 107, 56 Am. St. Rep. 604, 45 N. E. 354 (miscarriage); Ewing v. Pittsburgh etc. Ry. Co., 147 Pa. St. 40, 30 Am. St. Rep. 709, 23 Atl. 340 (nervous disease); Renner v. Canfield, 36 Minn. 90, 1 Am. St. Rep. 654, 30 N. W. 435 (nervous shock); Wyman v. Leavitt, 71 Me. 227, 36 Am. Rep. 303 (mere apprehension) ; Gulf etc. Ry. Co. v. Trott, 86 Tex. 402, 40 Am. St. Rep. 866, 25 S. W. 419; Dorrah v. Illinois Cent. R. R. Co., 65 Miss. 14, 7 Am. St. Rep. 629, 3 South. 36; Haile v. Texas etc. Ry. Co., 60 Fed. 557; Joch v. Dankwardt, 85 111. 331; Ind. etc. R. R. Co. v. Stables, 62 111. 313; Canning v. Williamstown, 1 Cush. 451; § 257 NEGLIGENCE— GENERAL PRINCIPLES. 548 Upon the doctrine announced by a recent New York case (Mitchell v. Kochester Railway Co.), 134 where a woman was standing in the street ready to board a car, and when about to step upon the car, a team at- tached to a horse-car drew so near to her that she stood between the horses' heads, causing fright, so that she became unconscious, which resulted in a mis- carriage and consequent illness. The court applied the general rule above stated, denying recovery, holding that the proximate results of negligence do not include mere fright. There are, however, other quite recent and well-con- sidered cases upon this point directly opposing the doctrine already stated, permitting recovery upon grounds which no doubt will, in the future, command the earnest attention of bench and bar, and may sub- ject some of the cases previously decided in some ju- risdictions to close scrutiny. Recovery is denied be- cause it is difficult to trace a nervous derangement to the fright, and a rule allowing recovery may open up a wide field of litigation, furnishing opportunity for many impostors to reap gain. As a safeguard against this, we ought to rest secure upon the honor and in- tegrity of the medical profession, upon whom the wel- fare of our people and government much depends. Recovery is denied in such cases for the still more substantial reason that it is difficult to trace the phys- ical derangement to the fright complained of. The Fox v. Borkey, 126 Pa. St. 124, 17 Atl. 604; Johnson v. Wells, Fargo etc. Co., 6 Nev. 224, 3 Am. Rep. 245; Bovee v. Danville, 53 Vt. 183. There can be no recovery for fright alone: Nelson v. Craw- ford, 122 Mich. 466, 80 Am. St. Rep. 577, 81 N. W. 335. In St. Louis etc. Ry. Co. v. Bragg, 69 Ark. 402, 86 Am. St. Rep. 206, 64 S. W. 226, it is held that a railroad company is not liable in dam- ages for the consequences of fright and nervous shock to a pas- senger, unaccompanied by any immediate physical injury. 134 Mitchell v. Rochester Ry. Co., 151 N. Y. 107, 56 Am. St. Rep. 604, 45 N. E. 354. 549 INJURY TO RIGHT OF PERSONAL SECURITY. § 257 majority rest content in denying recovery unless there be an immediate personal injury. Must not courts and juries depend much, if not all, upon the principles and doctrines of medicine, and the knowledge of the medical profession, as they do in other matters, nota- bly in determining professional violations of duty, 135 in determining whether the legal requirements that no recoveries shall be had but for "personal injuries," and shall recovery for what we understand by "mere fright" be denied because it is difficult to apply the doctrines of proximate and remote cause to this class of cases, and because there are uncertainties sur- rounding the subject? Recovery or no recovery, in such cases, all depends upon whether personal injury is done by fright. It is not difficult to trace cause and effect where a woman enceinte has a miscarriage immediately following severe fright or great shock caused by some neglect of another. And yet, we find authorities denying recovery in such cases. 136 In a late Iowa case it is said that"it is within the common observation of all that fright may, and usually does, affect the nervous system, which is a distinctive part of the physical system, and controls the health to a very great extent, and that a sound body is never found with a diseased nervous organization The nerves being, as a matter of fact, a part of the physical system, if they are affected by fright to such an extent as to cause physical pain, it seems to the court that the injury resulting therefrom is the direct result of the act producing the fright." 137- A number of cases incidentally have touched upon this ques- tion. 138 135 See sec. 371, post. 136 Ante, note 133. 137 Watson v. Dilts (Iowa), 89 N. W. 1068. 138 Purcell v. St. Paul etc. R. R. Co., 48 Minn. 134, 50 N. W. 1034; Hill v. Kimball, 76 Tex. 210, 13 S. W. 59; Buchanan v. § 257 NEGLIGENCE— GENERAL PRINCIPLES. 550 West Jersey R. R. Co., 52 N. J. L. 265, 19 Atl. 254. In this case the suit was not on the single ground that plaintiff was frightened, and the court did not find it necessary to decide whether mere fright caused by a wrongful act, which resulted in physical injury gives rise to a right of action. In Sloane v. Southern Cal. Ry. Co., Ill Cal. 668, 44 Pac. 320, it was said that a shock or injury to the nervous system occasioned by a tort must be regarded as a physical injury producing suffering to the body rather than to the mind, though the mind may be at the same time injuriously affected: Bell v. Railway Co., L. R. 26 Ir. 428. 551 INJURY TO RIGHT OF PERSONAL SECURITY. § 258 CHAPTER XX. INJUEY TO EIGHT OF PEESONAL SECURITY BY NEGLIGENCE IN USE OP DANGEEOUS AGEN- CIES. § 258. Blasting — Of the right to engage in work of. § 259. Blasting continued— Liability for injuries from. § 260. Blasting— Doctrines of contributory negligence applicable. § 261. Electricity— Care required in use of. § 262. Explosives— Negligence in use and storage of. § 263. Same— Gas and dangerous fluids. § 264. Same continued — Contributory negligence of injured. § 265. Firearms— Use of. § 266. Fireworks — Negligent use of. § 267. Same continued— Contributory negligence. § 258. Blasting— Of the Right to Engage in Work of. Liability for injuries to the person resulting in the work of blasting will depend upon the right of per- sons to engage therein. Under certain conditions and circumstances it will be inherently dangerous, while in other instances this will not be so. The work of blasting is in so many instances a work of necessity in making excavations for foundations of buildings, in digging wells, in mining, in improving roads and streets, in building railways, 1 and the measure of the right and the extent of liability depends entirely upon conditions and circumstances under which it is done. Being a work of necessity, even in thickly populated places, it follows that it must be done, but in such cases it must be carried on under certain restrictions and limitations; or, rather, certain precautionary l 1 Thompson on Negligence, sec. 765. § 259 INJURY BY BLASTING. 552 measures must be adopted to prevent injury. Where the work is carried on in less populous places, the right may be freely exercised so long as care and cau- tion is observed. § 259. Blasting Continued— Liability for Injuries from. Whether or not the liability of persons engaged in the work of blasting for injuries resulting therefrom is what is termed an absolute liability, or whether the wrong be nuisance or negligence, is the important topic presented for solution in this section. An at- tempt at classification of authorities by placing the decided cases in their appropriate places is difficult when loose expressions are used, and sharp distinc- tions are not always drawn, although it is no part of the duty of judges to instruct lawyers. The im- portant task of making the way clear falls more to the text-writer. In the former chapter were set forth injuries to the person by acts coming within the class of absolute liabilities, not involving want of care. The inclination was to place this subject there, but questions of negligence are found constantly dis- cussed in the cases, and the cases rest so upon acts of negligence that it is treated here, although we feel certain that in some instances the responsibility for injuries resulting from blasting would seem to be absolute. What is the basic principle underlying this liabil- ity? Blasting is an intrinsically dangerous work. Cer- tain precautions may and must be adopted to avoid injuries, varying according to the surrounding circum- stances. Whenever these are regarded as necessary, and they are not observed, when, if they had been, in- jury would have been averted, the courts pronounce this negligence. For instance, it is said that persons using a powerful explosive are charged with full 553 INJURY TO RIGHT OF PERSONAL SECURITY. § 259 knowledge of its dangerous effects, and hence are bound to adopt some means to protect persons placed in danger by the explosion of such blasts, a failure being negligence, for which they are liable. 2 To whom, may we ask, is this duty of precaution owed — to the world, trespassers and all? The answer will depend upon circumstances entirely, and in many instances upon the negligence of the complaining party. This duty is owing to persons residing within two hundred yards from where a railway company is blasting upon a right of way; 3 to person® lawfully using a highway where blasting is being done therein, or on premises adjoining thereto, it being necessary that all travelers should be warned; 4 to a person crossing the land of another, where blasting is being carried on, under a license acquired by habitual use; 5 or, in fact, to any- one whose safety there is reason to believe will be en- dangered; 6 and to those within the limits of danger. 7 There are quite a number of authorities upon this point bearing upon the necessity of adopting certain precautions to prevent missiles from reaching persons in the neighborhood, or giving timely warning, that all within possible danger may escape, considering failure so to do as an act of negligence. 8 2 Blackwell v. Lynchburg etc. R. R. Co., Ill N. C. 151, 32 Am. St. Rep. 786, 16 S. E. 12. 3 Id. 4 Milk v. Wilmington City Ry., 1 Marv. (Del.) 269, 40 Atl. 1114; Sullivan v. Dunham, 161 N. Y. 290, 76 Am. St. Rep. 274, 55 N. E. 923; Wright v. Compton, 53 Ind. 337. 5 Driscoll v. Newark Lime etc. Co., 37 N. Y. 637, 97 Am. Dec. 761. 6 Cameron v. Vandergriff, 53 Ark. 381, 13 S. W. 1092. 7 Wadsworth v. Marshall, 88 Me. 263, 34 Atl. 30. 8 St Peter v. Dennison, 58 N. Y. 416, 17 Am. Rep. 258; Black- well v. R. R. Co., Ill N. C. 151, 32 Am. St Rep. 786, 16 S. E. 12; Simmons v. McConnell, 86 Va. 494, 10 S. E. 838; Mills v. Wil- mington City Ry. Co., 1 Marv. (Del.) 269, 40 Atl. 1114; Driscoll v. Newark Lime etc. Co., 37 N. Y. 637, 97 Am. Dec. 761; Clarkin v. § 259 INJURY BY BLASTING. 554 There ought to be, and is, perhaps, some limit to this precautionary duty. One ought not to be expect- ed to anticipate unreasonable things, and the respon- sibility of persons engaged in the necessary work of blasting is wholly different from that where one delib- erately sets spring-guns; 9 or one who keeps vicious dogs 10 or wild animals for his protection. 11 And this limitation may be necessary from the fact that per- sons go upon the premises of another where they have no right to be, and where the work of blasting is not intrinsically dangerous to anyone, when they have no business, and are not expected there. Hence, it ought not to be negligence, and there should be no responsi- bility when it is carried on without danger to others. 12 But it is considered that where a blast is discharged at a place where it is not unlawful to discharge it, the fact that a man is killed by a rock thrown by the blast, at a distance of from nine hundred and forty to twelve hundred feet, presents a prima facie case of negligence in the management of the blast. 13 Not only must these precautions be adopted, but, further- more, persons using a powerful explosive in blasting are charged with knowledge of any fact in reference to its actual effect that they could with reasonable dili- gence have been ascertained, and failure so to do will constitute negligence. 14 And so, if injury results from a person or corporation managing or handling explo- Biwabik-Bessemer Co., 65 Minn. 483, 67 N. W. 1020; Cameron v. Vandegriff, 53 Ark. 381, 13 S. W. 1092; Wadsworth v. Marshall, 88 Me. 263, 34 Atl. 30. 9 Ante, sec. 240. 10 Ante, sec. 239. 11 Ante, sees. 236, 237. 12 See Brennan v. Gellick, 30 Abb. N. C. 166, 21 N. V. Supp. 1023. 13 Klepsch v. Donald, 4 Wash. 436, 31 Am. St. Rep. 936, 30 Pac. 991, 8 Wash. 162, 35 Pac. 621. 14 Blackwell v. Lynchburg etc. R. R. Co., Ill N. C. 151, 32 Am. St. Rep. 786, 16 S. E. 12. 555 INJURY TO RIGHT OF PERSONAL SECURITY. § 259 sive material carelessly or unskillfully, or from the unnecessary use of such as is so powerful that in- jury might be expected to follow as a natural or prob- able consequence, they are liable. 15 With reference to blasting in thickly populated places, as in cities or towns, the doctrine is stated in two ways : One as though the liability depended upon the failure to observe the precautions and care here- inbefore outlined, and the other as though it was absolute. It is said, for example, that blasting with gunpowder in a city or town near enough to the prop- erty of others to do injury is a nuisance, unless proper precautions are taken to prevent injury to such prop- erty, or to the persons of others ignorantly coming within its reach. 16 While, on the other hand, it is held that when injuries are inflicted by exploding in a thickly settled part of a city, a blast of gunpowder, the parties causing such explosion are not relieved from liability by the fact that they employed careful and experienced men, and exercised the highest de- gree of care. 17 The matter of exercising the various necessary precautions does not seem to have been in- volved in the case pronouncing the latter doctrine. Thus, it would seem that the liability of persons engaged in blasting for causing personal injury is based upon negligence, consisting, as already shown, in failure to observe the precautions necessary. The principle of liability for injuries resulting to property certainly cannot apply to personal injuries, though 15 Id.; Sabin v. Vermont etc. R. Co., 25 Vt. 363; St Peter v. Denison, 58 N. Y. 416, 17 Am. Rep. 258; Bellinger v. N. Y. Cent. R. R. Co., 23 N. Y. 47; Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654; Hunter v. Farren, 127 Mass. 481, 34 Am. Rep. 423. 16 James v. McMinimy, 93 Ky. 471, 40 Am. St. Rep. 200, 20 South. 435; St. Peter v. Dennlson, 58 N. Y. 416, 17 Am. Rep. 258. 17 MunrO v. Pacific Coast etc. Co., 84 Cal. 515, 18 Am. St. Rep. 248, 24 Pac. 303. §§ 260, 261 INJURY BY BLASTING. 556 this may, in many instances, depend upon acts of neg- ligence. 18 The liability of persons engaged in blasting for casting gravel, slate, stone, or other articles upon the land of another, or otherwise injuring the land, is ab- solute; it does .not matter how much care and pre- caution is taken, the act constitutes a nuisance. 183, § 260. Blasting— Doctrines of Contributory Negligence Applicable. — The established doctrines of contributory negligence apply in cases of injuries from explosives in blasting, and it may be shown that one who has been guilty of negligence by remaining within, say, eighty yards of the scene of blasting, after he has knowledge of the dangers, 19 or that a person, after having been warned -and having taken a place of safety, becomes frightened and rushes into a place of danger, cannot recover. 20 There is a clear variation of negligence on the part of one injured by the explo- sion of a blast, in that a person who is placed in a po- sition of peril by the negligence of another in explod- ing the blast needs only to make an effort to protect himself, and he cannot be considered negligent if he makes a mistake and errs in judgment. 21 § 261. Electricity— Care Required in Use of.— The rule of care exacted of those using a current of elec- tricity in high tension in places where there is likeli- hood of its coming in contact with life, as found uni- 18 Benner v. Atlantic Dredging Co., 134 N. Y. 649, SO Am. St. Rep. 649, 31 N. E. 328; Colton v. Onderdonk, 69 Cal. 155, 58 Am. Rep. 556, 10 Pac. 395; Joliet v. Harwood, 86 111. 110, 29 Am. Rep. 17. isa Hay v. Cohoes Co. 2 N. Y. 159. 51 Am. Dec. 279; Tremain v. Cohoes Company, 2 N. Y. 163, 51 Am. Dec. 284. 19 Fox v. Borkey, 126 Pa. St. 164, 17 Atl. 604. 20 Graetz v. McKenzie, 9 Wash. 696, 35 Pac. 377. 21 Blackwell v. Lynchburg etc. E. R. Co., Ill N. C 151, 32 Am. St. Rep. 786, 16 S. E. 12. 557 INJURY TO EIGHT OF PERSONAL SECURITY. § 2G1 versally expressed by judicial opinion, is "a very high, if not the highest, degree of care"; "the highest degree of care practicable to avoid injury to everyone who may lawfully be in proximity to such wires, and liable to come, accidentally or otherwise, in contact with them." After all, this is but a variation of ordinary care and diligence, which are relative terms, deriv- ing their significance from the particular conditions and circumstances. The tendency in all relations and conditions where life is at stake or involved is to use a stronger term. And so in their application where persons are dealing with electricity, they mean the highest care and vigilance possible under the existing condition of science. Some courts have been more moderate in their characterization of the measure of care to be used, viz., that the wires shall be kept in "a reasonably safe condition." But great care more truly expresses the feelings of men in respect to the use and management of deadly currents of electricity. Wires charged with an electric current may be harm- less, or they may be in the highest degree dangerous. The difference in this respect is not apparent to ordi- nary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular case. In support of the foregoing the authorities are cited in the note. 22 And so is it considered that there is 22 Alabama.— Very great, if not the highest degree of care: Mc- Kay v. Southern Bell Tel. Co., Ill Ala. 337, 56 Am. St. Rep. 59, 19 South. 695. California. — A company or person using wires to convey elec- tricity is required to use very great care to prevent injury to per- son: Giraudi v. Electric Improvement Co., 107 Cal. 120, 48 Am. St. Rep. 114, 40 Pac. 108. Louisiana.— "It was the duty of the company .... to see that they were safe for those who by their occupation were brought in contact with them": Clements v. Louisiana Electric Light Co., 44 La. Ann. 692, 32 Am. St. Rep. 348, 11 South. 51. § 261 BY USE OF ELECTRICITY. 558 a presumption of negligence when it appears that a wire, charged with a deadly current of electricity, comes in contact with a person, the same not being final or conclusive, but may be repelled by evidence. This arises because the accident is such as, in the or- dinary course of things, does not happen, if the per- sons in charge have used due care. 23 For example, this presumption will be indulged if it appears that the insulation of a wire is gone, 24 though this may Maryland. — It is the duty of an illuminating company using electric light wires charged with a high tension current to see that its wires, when strung where persons are liable to come in contact with them, are properly placed with reference to the safety of such persons and are properly insulated: Brown v. Edison Elec- tric Illuminating Co., 90 Md. 400, 78 Am. St. Rep. 442, 45 Atl. 182. Massachusetts. — An electric corporation owes to every person who lawfully comes for a business purpose upon premises on which it maintains a dangerous electric wire the duty of exercising reason- able diligence in seeing that the wire is kept in a state of repair: Griffin v. United Electric Light Co., 164 Mass. 492, 49 Am. St. Rep. 477, 41 N. E. 675. New York.— Great care: Ennis v. Gray, 87 Hun, 355, 34 N. Y. Supp. 379. Oregon.— It is the duty of such companies to exercise the utmost care to prevent injury: Perham v. Portland etc. Electric Co., 33 Or. 451, 72 Am. St. Rep. 730, 53 Pac. 14. Pennsylvania— The very highest degree: Fitzgerald v. Edison Elec. 111. Co., 200 Pa. St. 540, 86 Am. St. Rep. 732, 50 Atl. 161. Tennessee. — It is the duty of a telephone company and an electric railway company to see that their wires are in a reasonably safe condition: Electric Ry. Co. v. Shelton, 89 Tenn. 423, 24 Am. St. Rep. 614, 14 S. W. 863. West Virginia— A. high, if not the highest, degree of care is exacted of operators of electricity: Snyder v. Wheeling Electrical Co., 43 W. Va. 661, 64 Am. St. Rep. 922, 28 S. E. 733. 23 Id. See, also, Western Union Tel. Co. v. State, 82 Md. 293, 51 Am. St. Rep. 464, 23 Atl. 763; Hayes v. Raleigh Gas Co., 114 N. C. 203, 41 Am. St. Rep. 786, 19 S. E. 344; Perham v. Portland Elec. Co., 33 Or. 451, 72 Am. St. Rep. 730, 53 Pac. 14; Uggla v. West End St. Ry., 160 Mass. 351, 39 Am. St. Rep. 481, 35 N. E. 1126. 24 Griffin v. United Electric Light Co., 164 Mass. 492, 49 Am. St Rep. 477, 41 N. E. 675. 559 INJURY TO RIGHT OF PERSONAL SECURITY. § 261 not be so if it is at a place where one who is injured has no right to be. 25 While perfect apparatus and con- struction may not be exacted, yet those using elec- tricity are required to exercise a degree of care and prudence commensurate with the danger involved. 20 And "an electric company is bound only to anticipate such combinations of circumstances and accidents and injuries therefrom as it may reasonably forecast as likely to happen, taking into account its past ex- perience, and the experience and practice of others in similar situations, together with what is inherently probable in the condition of the wires as they relate to the conduct of its business. 27 Because of the dan- gerous character of such wires over which an electric current is conducted, all persons and companies plac- ing such wires owe a legal duty, aside from any con- tract, statute or municipal ordinance, toward every- one who is liable to come in contact with the same to see that the wires are not only properly placed with reference to the safety of such persons, but they must make them safe by proper insulation. Not only this, but they must keep the wires safe by constant over- sight and repair. 28 As an illustration of when there 25 Hector v. Boston Electric Light Co., 161 Mass. 558, 37 N. E. 773; Sullivan v. Boston etc. R. R. Co., 156 Mass. 378, 31 N. E. 128. 26 Perham v. Portland etc. Elec. Co., 33 Or. 451, 72 Am. St. Rep. 730, 53 Pac. 14. 27 Snyder v. Wheeling Elec. Co., 43 W. Va. 661, 64 Am. St. Rep. 922, 28 S. E. 733. 28 Overall v. Louisville Electric Light Co., 47 S. W. 442, 20 Ky. Law Rep. 759; Brown v. Edison Elec. 111. Co., 90 Md. 400, 7S Am. St. Rep. 442, 45 Atl. 182; Griffin v. United Electric Light Co., 164 Mass. 492, 49 Am. St. Rep. 477, 41 N. E. 675; Ennis v. Gray, 87 Hun, 356, 34 N. Y. Supp. 379; Mackay v. New York etc. R. R. Co., 35 N. Y. 75; Mitchell v. Raleigh Electric Co., 129 N. C. 166, 85 Am. St. Rep. 735, 39 S. E. 801; Clements v. Louisiana Electric Light Co., 44 La. Ann. 692, 32 Am. St. Rep. 348, 11 South. 51; Perham v. Portland etc. Electric Co., 33 Or. 451, 72 Am. St. Rep. 730, 53 Pac. 14. § 262 BY USE OF ELECTRICITY. 500 may be a liability for failure to perform this duty may be instanced the case of a person going upon the roof of a building to work, and coming in contact with an improper insulation, and is injured. 29 So, if a com- pany runs a wire into a store, but leaves it defectively insulated, so that a person is injured by coming in contact with it while cleaning a roof, there is a strong prima facie evidence of negligence on the part of the company. 30 The responsibility of such companies is greater in respect to third persons lawfully engaged in and about premises where wires are strong than to their employees. A person engaged at work where electric wires are stretched, but not for the company, and who has no knowledge of the fact that such wires are stretched above the roof of a building in which he is employed, cannot be considered guilty of negligence on the ground that he ought to have known the location and have taken care to avoid such wires. 31 Nor is one guilty of negligence who is ignorant of the effect of dampness of electric wires and grasps the same with his hands. 32 One touching an electric wire where the insulating material is worn off cannot be held to be negligent if he has no knowledge that the, wire is im- perfect, nor that it is an electric wire. 33 § 262. Explosives— Negligence in Use and Storage of. In considering the liability of persons with respect 29 Clements v. Louisiana Electric Light Co., 44 La. Ann. 692, 32 Am. St. Eep. 348, 11 South. 51. 30 Brown v. Edison Electric 111. Co., 90 Md. 400, 78 Am. St. Rep. 442, 45 Atl. 182; Fitzgerald v. Edison Elec. III. Co., 200 Pa. St. 540, 86 Am. St. Rep. 732, 50 Atl. 161. 3i Giraudi v. Electric Improvement Co., 107 Cal. 120, 48 Am. St Rep. 114, 40 Pac. 108. 32 Id. S3 Griffin v. United Electric Light Co., 164 Mass. 492, 49 Am. St. Bep. 477, 41 N. E. 675. 561 INJURY TO RIGHT OF PERSONAL SECURITY. § 262 to explosives there are two conditions to be looked to — one in their use, and the other in storing the same. So far as concerns the use of explosives, all of the doc- trines which have been considered at a previous sec- tion, 34 considering the law with reference to blasting, will apply to the use of explosives, as the same prin- ciples are called into play in connection with blasting, but there is a clear distinction, so far as concerns the duties and liabilities of persons in connection with explosives, between the storage and usage of explo- sives. As shown in the previous section, the univer- sal rule with reference to the liability of persons in using explosives is, that it depends entirely upon neg- ligence, consisting in the failure to observe the care necessary in connection with their use. When we come, however, to consider the liability of persons who store explosives, we find two opposite views more clearly expressed in the authorities, than we do in connection with their use: One to the effect that where a person stores on his own premises highly dan- gerous explosives, he is liable for all injuries caused to surrounding property by its exploding, although he neither violates any provision of the law regulat- ing its storage, nor is chargeable with negligence con- tributing to the explosion. There are quite a number of very respectable authorities committed to this doc- trine of absolute liability irrespective of any question of neglect. 35 On the other hand, there are other courts which hold that, independently of statute, there is no liability for storing explosives, such as powder and dynamite, unless negligence is averred 34 Ante, sec. 258. 35 Tremain v. Cohoes Co., 2 N. Y. 103, 51 Am. Dec. 248: Cuff v. Newark etc. Ry. Co., 35 N. J. L. 17, 10 Am. Rep. 205; McAndrews v. Collerd, 42 N. J. L. 189, 36 Am. Rep. 508; Bradford Glycerine Co. v. St. Mary's etc. Mfg. Co., 60 Ohio St. 560, 71 Am. St. Rep. 740. 54 N. E. 528 (Shauck, J., dissenting). Torts, Vol. 1—36 § 262 BY EXPLOSIVES. 562 and shown. And it is believed that the mere storing of explosives is not per se a nuisance, whether or not it will become so depending upon the amount, local ity, place, and surrounding circumstances. 36 Of course the dispute among the authorities may be due to a failure to sharply draw the distinction be- tween what constitutes a nuisance and what negligence. The former can never exist without a failure to observe some duty. But in nearly every case where the matter has been considered, neg- ligence either in location or manner of keeping has been the controlling point, and while it has been called nuisance per se, on account of the surrounding circumstances, and on that account negligence per se, it is admitted that the reason for the nuisance lies in the fact of negligence, and not vice versa. So that the negligence to be complained of in the storage of explosives may lie not in the direct cause, as fire and the like, but in the selection of a place for storing it, or in the manner of protecting it from agencies likely to explode it. So that the fact that it is stored in a city 37 or town, 38 or near buildings in use, 39 or where it is kept in a wooden building or one likely to catch fire, 40 are evidence of negligence in storing explosives, so far as will render one liable for injury resulting therefrom, even though he exercise the utmost care otherwise. This is exactly the same principle that has been applied in their use in blast 36 Heeg v. Licht, 80 N. Y. 579, 36 Am. Rep. 654; Laflin etc. Co. v. Tearney, 131 111. 322, 19 Am. St. Rep. 34, 23 N. E. 389. 37 Cheatham v. Shearon, 1 Swan, 213, 55 Am. Dec. 734. 38 Kinney v. Koopman, 116 Ala. 310, 67 Am. St. Rep. 119, 22 South. 593. 39 Myers v. Malcolm, 6 Hill, 292, 41 Am. Dec. 744; McAndrews v. Collerd, 42 N. J. L. 189, 36 Am. Rep. 508. 40 Kinney v. Koopman, 116 Ala. 310, 67 Am. St. Rep. 119, 22 South. 593; Denver etc. Ry. Co. v. Conway, 8 Colo. 1, 54 Am. Rep. 537, 5 Pac. 142; Myers v. Malcolm, 6 Hill, 292, 41 Am. Dec. 744. 563 INJURY TO RIGHT OF PERSONAL SECURITY. § 262 ing where the negligence consisted in failure to take the necessary precautions to avoid danger and in- jury. Some of the cases adhering to what may be termed the absolute liability rule seem to apply the doctrine inaccurately to the conditions and circum- stances. 41 Some cases hold that it is sufficient negligence to establish a liability if the magazine be located in the populous part of a city, even though the same be well fitted to resist human agencies. 42 And the ignorance of the person in charge of the magazine as to the lia- bility for its accidental explosion will not excuse his employers, for he is bound to have knowledge of the nature of the material. 43 On the other hand, many injuries have occurred through the use of explosives. Here, too, it cannot be considered wrongful per se to use these powerful agencies, for there are many ob- jects necessary to public good which cannot be accom- plished without their use. Negligence, then, must be shown in their use as well as their storage. There is a clear distinction between the act of blasting and that of storing dangerous explosives: In blasting, single acts are committed using danger- ous agencies, while in the storage there is a continu- ance of a dangerous condition, clearly constituting nuisance, whether it causes injury to person or to property. The chief uses are in blasting, firearms, and fireworks, and these subjects will be discussed 41 In Tremain v. Cohoes Co., 2 N. Y. 163, 51 Am. Dec. 284, an injury resulted from dirt and stone thrown from a Wast and was uncalled for. In McAndrews v. Collerd, 42 N. J. L. 189, 36 Am. Rep. 508, a magazine was kept near houses which were in- habited, and the facts did not warrant the broad statement. 42 Cheatham v. Shearon, 1 Swan, 213, 55 Am. Dec. 734; Wier's Appeal, 74 Pa. St. 231. But contra, see Haflin etc. Co. v. Tearney, 131 111. 322, 19 Am. St. Rep. 34, 23 N. E. 389. 43 Tissue v. Baltimore etc. R. R. Co., 112 Pa. St. 91, 56 Am. Rep. 310, 3 Atl. 667. § 263 BY EXPLOSIVES. 564 separately, together with liability for injuries from explosion of substances not usually classed as explo- sives, as gas, oil, gasoline, etc., which, under certain conditions are liable to explode. § 263. Same— Gas and Dangerous Fluids.— Manu- facturers of gas and fluids liable to explode under certain conditions, as well as those companies which make it a business of furnishing gas to the public, owe a duty to the community, as well as to every in- dividual member thereof, to exercise care in the man- ufacture and transportation, so as to avoid those con- ditions under which the same may become dangerous, and cause personal injury. The same rules of law govern the liability for tort in such cases whether person or property is injured, the former class of wrongs being the subject of this section. Corpora- tions engaged in the business of manufacturing and furnishing artificial gas for public consumption, or in boring for and furnishing natural gas for light or fuel, sustain rather a quasi public relation, and owe a general public duty. But more than this : "A defend- ant who owes a duty to the community owes it, as a general rule, to every member of the community, and if any member suffers a special injury from a breach of that duty, an action will lie." 44 Care, proportionate to the necessities of the condi- tions and circumstances, must not only be observed in the construction or laying of pipes through which gas is to be transported, so that the same are safe and suitable for the use, but the duty is incumbent upon persons constructing and laying such pipes to keep the same in a reasonable condition of safety so as not to endanger the safety of others; and it is their 44 Sisk v. Crump, 112 Ind. 504, 2 Am. St. Kep. 213, 14 N. E. 381. 565 INJURY TO RIGHT OF PERSONAL SECURITY. § 263 business to know of the existence of defects, their liability not depending upon notice. 45 If, therefore, pipes are negligently constructed by reason whereof they break, there is a clear liability. Where transportation is by pipes through the streets of a city, they must be regularly inspected in order that any leakage or likelihood thereof, may be detected, and this is true if the city owns the main. 46 So, too, it is considered negligent for a gas company to lay its pipes on the surface of the ground so that a heavy traction engine, when passing over the same, will cut through and set fire to the escaping gas; 47 and it is negligence for a common carrier to allow oil- tank cars to remain so close to a burning wreck that they explode, 48 or for a gas company to suddenly vary the pressure in the pipes, greatly increasing the vol- ume of gas delivered. 49 Again, if, through the com- pany's want of care in making connections or discon- nections in a house in which they are furnishing gas, an explosion occurs, they are liable, and the ques- tion whether the tests applied at the time is an exer- cise of care, is for the jury. 50 And the landlord would 46 Dow v. Winnipesaukee Gas etc. Co., 69 N. H. 312, 76 Am. St. Rep. 173, 41 Atl. 288. 46 Lee v. Vacuum Oil Co., 54 Hun, 156, 7 N. Y. Supp. 426; Mis- slssinewa Min. Co. v. Patton, 129 Ind. 472, 28 Am. St. Rep. 203, 28 N. E. 1113; Oil City Gas Co. v. Robinson, 99 Pa. St. 1; Bartlett v. Boston Gaslight Co., 122 Mass. 209; Schoepper v. Hancock Chemical Co., 113 Mich. 582, 71 N. W. 1081; Kibele v. Philadelphia, 105 Pa. St. 41. 47 Indiana etc. Gas Co. v. McMath, 26 Ind. App. 154, 57 N. E. 593. 48 Henry v. Cleveland etc. Ry. Co., 67 Fed. 426. 49 Oil City etc. Co. v. Boundy, 122 Pa. St. 449, 15 Atl. 805. bo Bastian v. Keystone Gas Co., 27 App. Div. 584, 50 N. Y. Supp. 537; Lanigan v. New York Gaslight Co., 71 N. Y. 29; McGahan v. Indianapolis Nat Gas Co., 140 Ind. 335, 49 Am. St Rep. 199, 37 N. E. 601. § 264 BY EXPLOSIVES. 566 be liable if he allows open pipes in a room and per- mits another to introduce gas into them so as to fill the room with gas, 51 but not if the defect was in plumbing done by a competent plumber hired by a former tenant. 53 But where one sells naphtha for use as illuminating oil, he is liable to one who ignorantly uses it as such oil. 53 A peculiar case is reported where a driver, in unloading a case of Vichy water, allowed a bottle to fall out, and upon it striking the pavement, it explod- ed and threw glass into the eyes of a bystander. He was held liable. 54 § 264. Same Continued— Contributory Negligence of Injured. — If one approaches with a light a place where, from the odor, or where he has reason to believe, or ought to believe, that gas is collected, he is guilty of such contributory negligence as Mali bar recovery. 55 So, for one to go near to where there are burning tanks of oil which he can see are apt to be dangerous, it is negligence. 56 Again, an inspector of oil is not liable for an explosion where the cause was an unsafe lamp, and not erroneous marking. 57 Nor in an explo- sion of gasoline, where the cause was leaving a bar- 51 Kimmell v. Burfeind, 2 Daly, 155. 52 Metzger v. Schultz, 16 Ind. App. 454, 59 Am. St. Rep. 323, 43 N. E. 886, 45 N. E. 619. 53 Wellington v. Downer etc. Oil Co., 104 Mass. 64. 54 Cole v. New York Bottling Co., 23 App. Div. 177, 48 N. X. Supp. 893. 55 Mitchell v. Stewart, 187 Pa. St. 217, 40 Atl. 799; Lanigan v. New York Gaslight Co., 71 N. Y. 29; Oil City Gas Co. v. Robinson, 99 Pa. St. 1. 56 Cleveland etc. Ry. Co. v. Ballentine, 84 Fed. 935; Conroy v. Chicago etc. R. R. Co., 96 Wis. 243, 70 N. W. 486. 67 Hatcher v. Dunn, 102 Iowa, 411, 71 N. W. 343. 567 INJURY TO RIGHT OF PERSONAL SECURITY. § 265 rel of gasoline in the sun two days and using a light when drawing. 58 § 265. Firearms— Use of.— In the use of fire- arms very great care must be employed because of the extreme character of the injuries that may be in- flicted by them. In one case the test has been said to be "not whether the injury was accidentally inflicted, but whether the defendant was free from blame." 59 In Missouri, the true rule was expressed: "The defend- ant had a dangerous instrument in his hands, and it was his duty to take proportionate care in handling it." 60 So it has been held that the fact that the in- jury is not intentional, 61 or that it is accidental, does not determine the question. 63 So it has been consid- ered negligent to point a gun at a person or to snap it, knowing it to be pointed at a person, 63 or, even if the person thinks the gun is unloaded, if, in fact, it was loaded and was discharged to the injury of another; 64 and a ferry company has been held liable for the neg- ligence of a passenger in exhibiting a repeating rifle when his actions were such as would excite a reason- able apprehension of saf ety. 65 When one sells or de- livers to a person too young or unfit to have care or custody of it a gun or explosives of dangerous char- acter, he is presumed to contemplate the probable 68 Socola v. Chess-Carley Co., 39 La. Ann. 344, 1 South. 824. 69 Judd v. Ballard, 66 Vt. 668, 30 Atl. 96. eo Morgan v. Cox, 22 Mo. 373, 66 Am. Dec. 623. ei Welch v. Durand, 36 Conn. 182, 4 Am. Rep. 55; Seltzer v. Sax- ton, 71 111. App. 229. 62 Judd v. Ballard, 66 Vt. 668, 30 Atl. 96; Morgan v. Cox, 22 Mo. 373, 66 Am. Dec. 623; Chataigne v. Bergeron, 10 La. Ann. 699. 63 Seltzer v. Saxton, 71 111. App. 229; Bahel v. Manning, 112 Mich. 24, 67 Am. St. Rep. 381, 70 N. W. 327. 64 Bahel v. Manning, 112 Mich. 24, 67 Am. St. Rep. 381, 70 N. W. 327. 66 Ferry Companies v. White, 99 Tenn. 256, 41 S. W. 583. § 266 BY FIREARMS AND FIREWORKS. 568 consequences of his act. So a vender has been held liable for injuries to a child from powder sold to him. 66 Again, a vender of a pistol to boys ten and fourteen years old may be held for death of a younger brother who picks up the pistol from the floor where the two may have left it and shoots one of them. The sale of the pistol to the children is to be considered the proximate negligence. 67 So where a young girl care- lessly shot a gun, which she had been sent for, into another's face, the one who had sent for the gun was held. 68 But the mere giving of a toy airgun to a nine year old boy by his father cannot be considered neg- ligence. 69 Where an ordinance prohibits shooting in the streets one is liable for an injury resulting from so doing. 70 § 266. Fireworks— Negligent Use of.— Firing off or keeping in stock fireworks in itself is not unlawful or negligence; negligence must be shown before a recovery can be had for an injury from their use. 71 The discharge of fireworks at suitable places, when not prohibited by statute or municipal regulations, cannot be said to be unlawful; but the circum- stances may be such as to make the act of dis- ee Carter v. Towne, 98 Mass. 567, 96 Am. Dec. 682. But in a later trial of this case it was shown that the mother of the child had given the child the powder at one time and knew of his using it at the time of his injury, the vender was not held: Carter v. Towne, 103 Mass. 507. 67 Binford v. Johnston, 82 Ind. 426, 42 Am. Rep. 508. 68 Dixon v. Bell, 1 Stark. 287. 69 Chaddock v. Plummer, 88 Mich. 225, 24 Am. St. Rep. 283, 50 N. W. 135. 70 Daingerfield v. Thompson, 33 Gratt. 136, 36 Am. Dec. 783. 7i Dowell v. Guthrie, 99 Mo. 653, 17 Am. St. Rep. 598, 12 S. W. 900; S. C. affirmed, 116 Mo. 646, 22 S. W. 893; Colvin v. Peabody, 155 Mass. 104, 29 N. E. 59; Fillo v. Jones, 2 Abb. Dec. 121. 569 INJUR? TO RIGHT OF PERSONAL SECURITY. § 266 charging an explosive culpable negligence. 72 But the negligence which will render one liable may- consist in giving the exhibition in an unsafe place, or unsafe manner, or in the manner in which fireworks not in use are protected from fire. One who fires off fireworks is bound to use due care to prevent injuries from the orderly or premature explosion. Persons exploding fireworks must exercise great care. The care must be proportioned to the dangerous char- acter of the explosives used and the danger to be apprehended from the use of them. 73 Thus, an owner of a park who invites the public there to see an exhibition of fireworks is bound to use reasonable care to provide a safe place from which to view the display and to select competent persons to give the exhibition, but is not liable for injury in the absence of negligence. 74 The streets of a city are deemed an unsafe place for an exhibition and in two late cases the discharge of fireworks there has been held a nuisance and those engaged in it liable. 75 So where a horse was frightened to death by a fire- cracker thrown under him and exploding, there the act of exploding crackers in the street was held wrongful and unlawful. 76 But in Missouri an exhibi- tion given from a veranda in the second story of a courthouse in a public square of a city is held not unlawful or wrongful. 77 Care, however, must be ex- 72 Dowell v. Guthrie, 99 Mo. 653, 17 Am. St. Rep. 598, 12 S. W. 900. 73 Dowell v. Guthrie, 99 Mo. 653, 17 Am. St. Rep. 598, 12 S. W. 900. 74 Sebeck v. Plattdeutsche etc. Verein, 64 N. J. L. 624, 81 Am. St. Rep. 512, 46 Atl. 631. 75 Speir v. Brooklyn, 139 N. Y. 6, 36 Am. St. Rep. 664, 34 N. E. 727; Jenne v. Sutton, 43 N. J. L. 257, 39 Am. Rep. 578; Conklin v. Thompson, 29 Barb. 218. 76 Conklin v. Thompson, 29 Barb. 218. 77 Dowell v. Guthrie, 99 Mo. 653, 17 Am. St. Rep. 598, 12 S. W. 900. § 267 BY FIREWORKS. G70 ercised even toward a trespasser.'' 8 Again, where a boy voluntarily shot a Roman candle lower and lower until he struck another in the eye, he was held liable, there being no evidence of the other's negli- gence. 79 It is generally held that a municipality, which authorizes a celebration by the discharge of fireworks, is not liable for injury therefrom. 80 A. fortiori, it is not liable where it gave no authority to those who are using fireworks, and this is true even though the city is required by statute to keep the streets free from nuisances. 81 § 267. Same Continued— Contributory Negligence.— The contributory negligence of the person injured defeats his right of action, but it is not generally deemed contributory negligence for one to be present at a display of fireworks as a mere spectator. 82 A late case has held, however, that a voluntary spec- tator assumes the risk of injury from accident with- out negligence. 83 78 Herrick v. Wixom, 121 Mich. 384, 80 N. W. 117, 81 N. W. 333. 79 Bradley v. Andrews, 51 Vt. 530. so Morrison v. City of Lawrence, 98 Mass. 219; Findley v. City ,of Salem, 137 Mass. 171, 50 Am. Rep. 289; Wheeler v. Plymouth, 116 Ind. 158, 9 Am. St. Rep. 837, 18 N. B. 532. 81 Robinson v. Greenville, 42 Ohio St. 625, 51 Am. Rep. 857. 82 Dowell v. Guthrie, 99 Mo. 653, 17 Am. St. Rep. 598, 12 S. W. 900; Bradley v. Andrews, 51 Vt. 530; Colvin v. Peabody, 155 Mass. 104, 29 N. B. 59. 83 Scanlon v. Wedger, 156 Mass. 462, 31 N. E. 642. 571 INJURY TO RIGHT OF PERSONAL SECURITY. CHAPTER XXL INJURY TO EIGHT OF PERSONAL SECURITY, BY NEGLIGENCE— WHILE TRAVELING IN ROADS AND STREETS. § 268. This chapter. § 269. The law of the road. § 270. Relative rights of footmen and vehicles. § 271. Collisions between vehicles passing in same direction. § 272. Fast driving — Injuries from. § 273. Injury from runaway horse. § 274. Leaving horse unhitched in street. § 275. Defective harness. § 276. Ambulances— Care required in use of. § 277. Fire department— Personal injuries from. § 278. Automobiles— Their use in streets and roads. § 279. Bicycles— Their legal status. § 280. Relative rights of bicycle traveler and others. § 281. Personal injury in use of bicycle. § 282. Street railways — Injuries caused to travelers by. § 283. Street railways— Injuries to travelers from nonrepair of streets. § 284. Street railways continued— Running down travelers. § 285. Street railways continued— Rate of speed. § 286. Street railways continued— "Violation of ordinance. § 287. Same — Alighting passenger passing in front of car going in opposite direction. § 288. Street railways— Relative rights of travelers at crossings. § 289. Same continued— Care required of railway at street cross- ings. § 290. Street railways continued— Negligence of the company must be the proximate cause. § 291. Street railway companies— Contributory negligence. § 292. Right of travelers to use tracks. § 293. Steam railway crossings— Relative rights of travelers and railway. § 294. Same continued— Specially of the duty of traveler on ap- proaching crossing. §§ 268, 268 TRAVELING IN ROADS AND STREETS. 572 § 295. Same continued— Duty of railway company at crossings. § 296. Same continued— When railway does not give signal. § 297. Same continued — Duties and; liabilities of company with respect to "gates" and "flagmen." § 298. Same continued— Flying switches on public highway. § 299. Same continued — The cases. § 268. This Chapter considers negligence causing personal injury while traveling in roads and streets, either as pedestrians or as drivers of vehicles. Much depends upon the law of the road next considered. § 269. The Law of the Road.— By universal custom and practice in this country it is considered the duty of all travelers in vehicles upon streets and highways upon meeting each other to pass on the right hand of the street or road. This law or custom applies to, and is intended to regulate, the duty and conduct of those traveling on the road as between themselves. 1 This is the opposite of what the rule was in England, and rests entirely upon our own notions and the pre- vailing custom, excepting where statutes have been passed giving the custom the sanction of statutory enactment, which has been done in a number of states, the statute usually requiring that everyone who passes another to drive his carriage or ride his wheel to the right of the middle of the traveled part of the road. The purpose of these statutes is to facilitate and render safe the public travel, and pre- vent interruptions by prescribing the duty of each traveler, and by pointing out to each the part of the road over which they may in safety travel without meeting obstructions. 2 These statutes usually pre- i Grier v. Sampson, 27 Pa. St. 183; Foote v. American Product Co., 195 Pa. St. 190, 78 Am. St. Rep. 806, 45 Atl. 934; Elliott on Roads and Streets, 618 et seq.; 2 Shearman and Redfleld on Negli- gence, sec. 649; Riepe v. Elting, 89 Iowa, 82, 48 Am. St Rep. 356, 56 N. W. 285. 2 Brooks v. Hart, 14 N. H. 309; Parker v. Adams, 12 Met. 418, 46 Am. Dec. 694; Johnson v. Small, 5 B. Mon, 27. 573 INJURY TO RIGHT OF PERSONAL SECURITY. § 2G0 scribe a penalty for nonobservance. They enact "a general rule by which the use of such highways shall be regulated, to avoid injuries, and to prescribe duties and fix liabilities. But while the statute pre- scribes a general rule, it does not undertake to de- fine what may be the duties and liabilities of trav- elers under all possible circumstances." 3 Being on the wrong side of the road in violation of th6 statute is a disregard of only one of the duties a traveler must observe. There are many instances where it may be justifiable or necessary to go upon the other side of the road, and disregard of the man- date of this statute, as an act of negligence consti- tuting the efficient cause of an injury, will, therefore, be differently regarded than other violations of statute considered elsewhere. 4 A traveler may occupy any part of the road, if no other person is occupying that particular portion of it. While the law imposes the duty upon persons meeting each other to "season- ably turn to the right," a mere disregard of this statute, whether enjoined by statute or custom, does not relieve the one observing the "law of the road" from exercising care to avoid being injured. To warrant an action by such party, the injury must not have been caused by any want of ordinary care on his part to avoid it, notwithstanding the viola- tion of the law of the road. 5 Some of the statutes in terms require travelers, upon meeting each other, to turn to the right of the middle or center of the road. Even in the face of such statutes there is no 3 O'Malley v. Dorn, 7 Wis. 236, 73 Am. Dec. 403. 4 Ante, sec. 255. s Kennard v. Burton, 25 Me. 39, 43 Am. Dec. 249; Parker v. Adams, 12 Met. 415, 46 Am. Dec. 694; Brember v. Jones, 67 N. H. 374, 30 Atl. 411. § 269 TRAVELING IN ROADS AND STREETS. 574 hard-and-fast rule, and the center does not necessarily mean the exact center, but may be the beaten path. e It is practically impossible to observe the statute or custom in all instances, and under all conditions or circumstances. In the case of a heavily loaded ve- hicle, or for any other reason, the driver of such wagon should stop in order to enable the other one to pass, and if he does neither, and a collision happens, he will be liable for any injury occasioned to the other. 7 Heavily loaded vehicles may be generally excused from turning out, so as to avoid a light vehicle, 8 or a horseman. 9 These, and many other similar illustrations, might be furnished in support of the impropriety of adopt- ing a hard-and-fast rule, leaving it open for the courts to adapt their rulings to the exigencies of the case. So the current weight of authority is to the effect that the mere act of driving on the wrong side of the street is not negligence per se, or evidence of negli- gence on the part of a driver of a vehicle. 10 "His negligence must necessarily arise out of an effort, or want of effort, to avoid a collision," upon meeting another team. 11 Still we find conclusions in reports of decisions to the effect that "one who violates the 'law of the road' by driving on the wrong side assumes the risk of such an experiment, and is required to use 6 Clark v. Commonwealth, 4 Pick. 125. 7 Kennard v. Burton, 25 Me. 39, 43 Am. Dec. 249. See Grier v. Sampson, 27 Pa. St. 183. 8 Beach v. Parmeter, 23 Pa. St. 196; Grier v. Sampson, 27 Pa. St. 183. » Id. io Wayde v. Carr, 2 Dowl. & R. 255; Brooks v. Hart, 14 N. H. 307; Meservey v. Lockett, 161 Mass. 332, 37 N. E. 310; Wood v. Luscomb, 23 Wis. 287; Parker v. Adams, 12 Met. 415, 46 Am. Dec. 694; Spofford v. Harlow, 3 Allen, 176; Neanow v. Uttech, 46 Wis. 581, 1 N. W. 221; Rand v. Syms, 162 Mass. 163, 38 N. E. 196. ll Id.; Riepe v. Elting, 48 Am. St. Rep. 375, note. 575 INJURY TO RIGHT OF PERSONAL SECURITY. § 270 greater care than if he had kept on the right side of the road; and if a collision takes place in such cir- cumstances, the presumption is against the party who is on the wrong side. And this is especially true where the collision takes place in the dark." 12 A presumption against the violator of the law of the road naturally arises, as it is more than likely that he is responsible for an injury, but this presumption does not rise high enough to make it negligent per se, but is a mere circumstance to go to the jury with all the evidence in the case. The law of the road as to turning to the right does not apply to one who is turning into one street from another. 13 § 270. Relative Rights of Footmen and Vehicles. — Persons traveling on foot and in vehicles in roads and streets have equal rights; it cannot be said that either has a superior right. 14 Many travelers do not realize this truth, or do not know what is right un- der particular circumstances, and indeed it is always a question for the jury. Equality of right requires that both driver of vehicle and footman shall exercise ordinary care under the circumstances of a given case to avoid injury. The principal difficulty or con- flict between persons traveling in streets lies in crossing the streets, especially in crowded thorough- fares. The same due and ordinary care must be ex- ercised by persons in crossing public streets as in other transactions of life. The duty is equally in- cumbent on both pedestrian and driver of vehicle or 12 Angell v. Lewis, 20 R. I. 391, 78 Am. St. Rep. 881, 39 Atl. 521; Brooks v. Hart, 14 N. H. 307; Wilson v. Rockland Mfg. Co., 2 Harr. (Del.) 67; Fales v. Dearborn, 1 Pick. 345. See Walkup v. May, 9 Ind. App. 409, 36 N. E. 917. 13 Lovejoy v. Dolan, 10 Cush. 495; Morse v. Sweenie, 15 111. App. 486. 14 Brooks v. Schwerin, 54 N. Y. 343; Myers v. Dixon, 3 .Tones § 270 TRAVELING IN EOADS AND STREETS. 576 horseman to be on the lookout for danger. While what constitutes ordinary care is a question of fact, it would seem that, as matter of law, ordinary care requires, as some courts have held, that a pedestrian crossing, or about to cross, a public street should be on the lookout, and take the necessary precautions demanded by the character of the thoroughfare so as to avoid collision with approaching horsemen or vehicles. The authorities seem to require the foot- man to look both ways. 15 "Both parties must be on the lookout, the one for passing teams, and the other for foot-passengers. Both have the right of way, and both must be equally cautious." Both are bound to use reasonable care to avoid collision. 16 It certainly would seem that prudence would re- quire the foot-traveler to be on the lookout, and so with the driver, not in the sense of "stopping, look- ing and listening," as in approaching a railway track, but a lookout such as would be reasonably necessary in streets. Such a rule would not coun- tenance a person walking across streets without turn- ing at all, depending upon the caution of drivers of vehicles, but he must have such a realization of his condition and surrounding circumstances as will enable him to respect the rightsi of drivers of vehicles, and to know that he cannot take chances or make nice calculations on being able to crossi the street and be able to avoid injury. If one makes a & S. 390; Belton v. Baxter, 54 N. Y. 245, 13 Am. Rep. 578; Stringer v. Frost, 116 Ind. 477, 9 Am. St. Rep. 875, 19 N. E. 331. 15 Stringer v. Frost, 116 Ind. 477, 9 Am. St. Rep. 875, 19 N. E. 331; Schmidt v. McGill, 120 Pa. St. 412, 6 km. St. Rep. 713, 14 Atl. 383; Buzly v. Philadelphia Traction Co., 126 Pa. St. 559, 12 Am. St. Rep. 919, 17 Atl. 895; Brooks v. Schwerin, 54 N. Y. 343; Noisi v. Empire Steam Laundry, 117 Oal. 257, 49 Pac. 185; Wolfskin v. Los Angeles Ry. Co., 129 Cal. 114, 61 Pac. 775. 16 Id.; Belton v. Baxter, 54 N. Y. 245, 13 Am. Rep. 578; Colton v. Wood, 8 Com. B., N. S., 568. 577 INJURY TO RIGHT OF PERSONAL, SECURITY. § 270 mistake in his calculations and is injured, then he has not exercised prudence, and cannot complain if he is injured. 17 In some states the courts have ap- parently stumbled upon the question in respect to the necessity of a traveler to keep a lookout, first con- cluding that it was the duty of a traveler on foot upon crossing a street to look in both directions along the street for a reasonable distance, and that a fail- ure so to do constituted contributory negligence. 18 The trouble with such a conclusion is, in going too far in saying that a failure to look up a street for a reasonable distance rather invades the province of the jury. A lookout such as is reasonably necessary to avoid danger is all that is necessary. A later decision by the same court announcing the view above stated retracts from the position by making the inapt com- parison with the rule of crossing railroads. It is said that the "duty to look up and down a street before attempting to cross the track of a railroad does not, as a matter of law, attach to one who is about to pass from one side to another of a city street." 19 Of course the rule of duty applicable to travelers in crossing railroad tracks should not apply to cross- ing city streets, so far as concerns a lookout for wagons and other vehicles. The correct rule requiring travelers to keep such a lookout as is reasonably necessary under the circum- stances has been stated, but it does not follow from the mere fact that a person has not looked up and down the street that he was not in the exercise of care, because, under the circumstances, he may have 17 Belton v. Baxter, 54 N. Y. 245, 13 Am. Rep. 578. 18 Barker v. Savage, 45 N. Y. 191, 6 Am. Rep. 66. 19 Moebus v. Herrmann, 108 N. Y. 349, 2 Am. St. Rep. 440, 15 N. E. 415. Torts, Vol. 1-37 § 271 TRAVELING IN ROADS AND STREETS. 57S been prudent and it is a question for the jury. 20 Whether these rules apply to crossing at any part of the street cannot be safely stated, not at least so far as concerns the relative rights of foot-traveler and vehicles, though we have authority holding, so far as concerns obstructions in the street, that a traveler may cross at any point and is not restricted to the regular crossings. 21 A driver must have his horse and vehicle under such usual, ordinary and reason- able control as to be able to prevent a collision. 22 A driver must observe such watchfulness for footmen, and have his animal under such control, as will enable him to avoid injury to others who have correspond- ing and reciprocal rights in the streets. 33 § 271. Collisions Between Vehicles Passing in Same Direction. — English and American law differ in regard to the respective duties of travelers upon highways when the one in the rear desires to pass the one in front of him. In England the one in front is required to give way to the one desirous of passing, by turning to the left , 24 while in this country the one in front does not have to give way if there is room for the one behind to pass. 25 The law of the road in this country is that when a driver attempts to pass a vehicle which is going in the same direction with himself, he must go to the left. But the one in the rear who attempts to pass the one in front assumes 20 Bowser v. Wellington, 126 Mass. 391; Williams v. Grealy, 112 Mass. 79; Randolph v. O'Riordon, 155 Mass. 331, 29 N. E. 583. 21 Raymond v. City of Lowell, 6 Cush. 524, 53 Am. Dec. 57. 22 Young v. Oowden, 98 Tenn. 577, 40 S. W. 1088. 23 Stringer v. Frost, 116 Ind. 477, 9 Am. St. Rep. 875, 19 N. E. 331, citing Murphy v. Orr, 96 N. Y. 14; Brooks v. Schwerin, 54 N. Y. 343; Daniels v. Olegg, 28 Mich. 32; Shapleigh v. Wyman, 134 Mass. 118. 24 Wayde v. Carr, 2 Dowl. & R. 255. 25 Bolton v. Colder, 1 Watts, 360. 579 INJURY TO RIGHT OF PERSONAL SECURITY. §§ 272, 273 all the risks, and does so at his peril; he must be re- sponsible for all damages which he causes to the one whom he attempts to pass, and whose right to the proper use of the road is as great as his, unless the latter is guilty of such recklessness or even gross carelessness as would bring disaster upon himself. 20 § 272. Fast Driving — Injuries from. — It certainly is not respecting the rights of others in a crowded thoroughfare to drive at a dangerous rate of speed, and the fact that there has been fast driving may be submitted to the jury as evidence of negligence, es- pecially where no lookout is kept. 27 If there is an ordinance against fast driving, its violation is negli- gence, though not conclusive. 28 Racing in the streets of a city is clearly negligence. 29 § 273. Injury from Runaway Horse. — It cannot be presumed that an owner or driver of a horse is negli- gent from the mere fact that it runs away; there is nothing in the fact itself which tends to show neg- ligence in the driver, or which tends to show how the horse becomes unmanageable. 30 For instance, if a person is driving with due care on a public highway, and his horses become frightened by a locomotive or other object and become unmanageable, he cannot be 26 Avegno v. Hart, 25 La. Ann. 235, 13 Am. Rep. 133; Young v. Cowden, 98 Tenn. 577, 40 S. W. 1088. See cases in note, 48 Am. St. Rep. 377; also in note, 13 Am. Rep. 135. 27 Stringer v. Frost, 116 Ind. 477, 9 Am. St. Rep. 875, 19 N. E. 331; Thomas v. Royster, 98 Ky. 206, 32 S. W. 613; 2 Thompson on Negligence, sec. 1299; 48 Am. St. Rep. 378, note. 28 Wright v. Maiden Ry. Co., 4 Allen, 283; Hanlon v. South Boston Ry. Co., 129 Mass. 310. 29 Ford v. Whiteman, 2 Penne. (Del.) 355, 45 Atl. 543. 30 Button v. Frink, 51 Conn. 342, 50 Am. Rep. 24; O'Brien v. Miller, 60 Conn. 214, 25 Am. St. Rep. 320, 22 Atl. 544; Creamer v. Mcllvaih, 89 Md. 343, 73 Am. St. Rep. 186, 43 Atl. 935. § 274 TRAVELING IN ROADS AND STREETS. 580 held responsible. 31 If an unhitched team of horses runs away and injures a person, the efficient cause of the injury is leaving the horse unhitched, although such act is not per se negligent. 32 § 274. Leaving Horse Unhitched in Street.— We find authorities to the effect that it is evidence of negli- gence to leave horses in the street unattended and unfastened, 33 as well as cases which hold that the mere fact of so leaving a horse and vehicle unhitched is not, as matter of law, negligence. It may be true that it is some evidence of negligence, because if it runs away and does damage, the fact that it was un- hitched is perhaps the cause. There is a disposition on the part of some courts to hold it not to be negli- gence to permit a sensible and very gentle horse to stand unhitched, one accustomed so to do, 34 though otherwise if it is a restless and high-strung horse, the fact that such a horse is left loose being evidence of negligence. 35 Whether such an act constitutes negligence, it is said, must depend upon the disposi- tion of the horse. The true theory appears to be that it is not, as matter of law, negligence, but the fact of a horse be- 31 Brown v. Collins, 53 N. H. 442, 16 Am. Rep. 372; Holmes v. Mather, reported in full, 16 Am. Rep. 384; Turner v. Buchanan, 82 Ind. 147, 42 Am. Rep. 485. 32 Griggs v. Fleckenstein, 14 Minn. 81, 100 Am. Dec. 199. 33 Henry v. Klopfer, 147 Pa. St. 178, 23 Atl. 337, 338; Unger v. Forty-second St. R. R. Co., 51 N. Y. 497; Strup v. Edens, 22 Wis. 432; Goodman v. Day, 15 Pa. St. 188, 53 Am. Dec. 589; Pierce v. Connons, 20 Colo. 178, 46 Am. St. Rep. 279, 37 Pac. 721 (spirited); Moulton v. Aldrich, 28 Kan. 300; Allidge v. Goodwin, 5 Car. & P. 190. 34 Phillips v. Dewald, 79 Ga. 732, 40 Am. St. Rep. 458, 7 S. E. 151. 35 Id. 581 INJURY TO RIGHT OF PERSONAL SECURITY. §§ 275,276 ing so left unhitched, with the other evidence should be submitted to the jury. 38 It is generally provided by ordinance in cities that horses shall not be permitted to be left standing in streets unhitched and unattended. This being so, a violation of the ordinance would constitute a prima facie case of negligence wherever the rule that the violation of an ordinance is negligence per se pre- vails. 37 At least the ordinance and the fact of its violation are cogent evidence before the jury tend- ing to show negligence. § 275. Defective Harness. — Prudence in the man- agement of vehicles requires that both vehicle and harness be in a reasonably good condition, though the mere fact that a wheel comes off or harness breaks is not negligence per se, but that liability can only arise in such case when there has been a want of ordinary care. 38 § 276. Ambulances— Care Required in Use of.— Per- sons running ambulances over the streets at a high rate of speed must observe such care to avoid injur- ing footman, or collisions with other vehicles, as is reasonably necessary under the circumstances. This would necessitate such precautionary measures, when going at a high rate of speed, as sounding the gong. If this be not done, it will constitute negligence rendering the owner liable. 39 City ambulances con- 36 Southworth v. Old Colony Ry. Co., 105 Mass. 342, 7 Am. Rep. 528; Griggs v. Fleckenstein, 14 Minn. 81, 100 Am. Dec. 199; Park v. O'Brien, 23 Conn. 339; Dexter v. McCready, 54 Conn. 171, 5 Atl. 855; Fiske v. Forsythe Dyeing etc. Co., 57 Conn. 118, 17 Atl. 356. 37 Ante, sec. 255. 38 City of Joliet v. Schufelt, 144 111. 403, 36 Am. St Rep. 453, 32 N. E. 969; Welch v. Lawrence, 2 Chit. 262; 1 Thompson on Negli- gence, sec. 1305. 39 Green v. Eden, 24 Ind. App. 583, 56 N. E. 240. § 277 TRAVELING IN ROADS AND STREETS. 582 ducted and run under a department of charities are upon the same footing as are fire insurance patrol, there being no liability. 40 But private owners of ambulances conducted for profit are under the same obligation to use due care in driving the same in streets as are owners of other vehicles. § 277. Fire Department— Personal Injuries From.— A fire department of a municipality established and maintained by it for the purpose of suppressing fires is an exercise of governmental power. This is au- thorized by legislative enactment under the police power of the state. Buildings may even be destroyed to prevent the spreading of fire when necessary, without any liability. 41 So it is an established rule, founded upon grounds of public policy, that a city cannot be held liable for any negligence of its fire- man in injuring person or vehicle while responding to a fire call, when engaged in the line of duty. 42 To permit recoveries to be had in these and other like cases would almost render the city an insurer of the safety of persons. Sound public policy forbids such liability, even if not prohibited by authority. An association of underwriters, which is given the right of way in going to a fire with their patrols by statute, is not thereby relieved from liability for Degligence. 43 40 Maxmilian v. Mayor, 62 N. T. ICO, 20 Am. Rep. 468; Jones on Municipal Negligence, sec. 31. 41 American Print Works v. Lawrence, 23 N. J. L. 590, 57 Am. Dec. 420; Jones on Municipal Negligence, sec. 31; Field v. Des Moines, 39 Iowa, 575, 18 Am. Rep. 46. 42 Jewett v. New Haven, 38 Conn. 368, 9 Am. Rep. 382; Hafford v. City, 16 Gray, 297; Fisher v. Boston, 104 Mass. 87, 6 Am. Rep. 196; Wilcox v. Chicago, 107 111. 334, 47 Am. Rep. 434; Welsh v. Rutland, 56 Vt. 228, 48 Am. Rep. 762; Grube v. St. Paul, 34 Minn. 402, 36 N. W. 228. 43 Newcomb v. Boston Protective Dept, 146 Mass. 596, 4 Am. St. Rep. 354, 16 N. E. 555. 583 INJURY TO RIGHT OF PERSONAL SECURITY. § 2TS § 278. Automobiles— Their Use in Streets and Roads. Automobiles and locomobiles are taking a place as one of the modern means of conveyance with general acquiescence of people and the courts. The principal difficulty is in their causing fright to horses, thus in- juring person or property, but it is said that "if the horse is to keep up with the procession he must get accustomed to the automobile, and not shy when it appears on the public highways." The horse has no paramount or exclusive right to the road. In the only cases so far in which the liability of persons using automobiles has been considered, it has been held that they must stand upon the same footing as carriages and other vehicles. Electric street-cars have caused many runaways. Automo- biles, operating without steam by storage batteries or by gasoline explosion engines, running at a mod- erate speed, may cause fright to horses unused to them, but there can be no right of action so long as there is no negligence in their use and management. 44 Undoubtedly, however, rules of law will yet be formu- lated as to the care to be observed in their use. Questions of the rate of speed at which they may run in thickly populated districts, and upon the country highways, will arise when injuries occur. Propellers of such vehicles cannot be content with their right to use the streets and roads, but must observe what- ever care is necessary in their use so as to guard the rights of others. If they cause fright to horses, or are about to cause fright to them, their owners must use care and prudence to avoid injury, although it is well settled that no cause of action will arise from 44 Sutherland, J., of Rochester, N. Y., Monroe county court, Nason v. West (1900), 65 N. Y. Supp. 651, 31 Misc. Rep. 583. Con- tra, Dixon, J., of New Jersey, Bergin circuit, a case in which a woman received injuries in a runaway, from which she died. § 279 TRAVELING IN ROADS AND STREETS. 584 mere fright alone, unaccompanied by personal in- jury. 45 Practically, many of the rules governing the use of bicycles will apply to this mode of conveyance, and their use is a proper subject of statutory or mu- nicipal regulation. 46 Nor will it do to say that it is proper to run any kind of a contrivance upon the street in which persons may be carried. "A machine that would go puffing and snorting through the streets, trailing clouds of steam and smoke, might be a nuisance." 47 § 279. Bicycles— Their Legal Status.— It did not take long upon the advent of the bicycle for it to ac- quire its legal status as a vehicle. It has been said that although its use for the purpose of locomotion and travel is quite modern, yet it is a vehicle of great convenience, and the courts have unanimously placed it upon an equality with, and to be governed by the same rule as, persons riding or driving any other vehicle or carriage. 48 This is denied in North Caro- lina, where a statute forbidding its use was sustained as constitutional. 49 The nature of this instrument of conveyance may, however, require special and dif- ferent regulation as to lights for the protection of others. 50 Being considered in law a vehicle, the 45 Ante, sec. 257. 46 Parkins v. Prist, L. R. 7 Q. B. D. 313. 47 Nason v. West, 65 N. Y. Supp. 651, 31 Misc. Rep. 583. 48 Taylor v. Goodwin, L. R. 4 Q. B. 228; Mercer v. Corbin, 117 Ind. 450, 10 Am. St. Rep. 76, 20 N. E. 132 (a "two-wheeled veloci- pede," which is a "light carriage"); Meyers v. Hinds, 110 Mich. 300, 64 Am. St. Rep. 345, 68 N. W. 156; Holland v. Bartch, 120 Ind. 46, 16 Am. St. Rep. 307, 22 N. E. 83; Thompson v. Dodge, 58 Minn. 555, 49 Am. St. Rep. 533, 60 N. W. 545; State v. Collins, 16 R. I. 371, 17 Atl. 131. 49 State v. Yopp, 97 N. C. 477, 2 Am. St. Rep. 305, 2 S. E. 458. 50 Elliott on Roads and Streets, sec. 852. 585 INJURY TO RIGHT OF PERSONAL SECURITY. §§ 280, 281 proper place for it to be run is upon the streets, and not upon the sidewalk. 51 § 280. Relative Rights of Bicycle Traveler and Oth- ers. — Travelers on bicycles being upon an equality with other travelers upon streets and highways, it follows that they are entitled to the rights of the road; that the rights and duties of a person on a bicycle and drivers of other vehicles are reciprocal; that the rules governing the law of the road are equally applicable to both. 52 The law of the road requires the driver of a wagon to accord one on a bicycle the same privileges and rights in the high- way as though he were using a carriage. 53 § 281. Personal Injury in Use of Bicycle.— There are a number of duties, in addition to the statutory or customary duty of observing the law of the road, which must be observed by all travelers, a violation of which constitutes actionable negligence. What part the violation of the statute may play in actions for personal injury is an important question. Even though one traveler may be on the wrong side of the road, those whom he may be passing still owe him the duty of ordinary care to avoid injuring him. Even though a person be on the right side of the road, and approaches another traveler on the same side, or on his wrong side, the one on the right side cannot rest secure because he is observing the law' of the road, but must still use ordinary care to avoid being injured, and if he does not do so, he is in no 5i Mercer v. Corbin, 117 Ind. 450, 10 Am. St. Rep. 76, 20 N. E. 132. 52 Foote v. American Product Co., 195 Pa. St. 190, 78 Am. St. Rep. 806, 45 Atl. 934. See cases cited ante, sec. 269, note. 53 Id. § 281 TRAVELING IN ROADS AND STREETS. 586 position to complain of the injury. 54 On the con- trary, if the traveler who is on the right side does observe ordinary care to avoid injury, but sustains injury by collision because another traveler refuses to turn out, the latter is liable. 55 The presumption in such case is that the injury is caused by the negli- gence of the one on the wrong side of the road, or if one turns to the left, upon passing on dark night, even under the statute is regarded merely as prima facie negligence, not conclusive. 56 If a bicyclist passes a pedestrian on the same road going in the same direction, the bicyclist is liable for damage re- sulting to the pedestrian from the collision between them, provided the pedestrian is without fault; 57 it is the duty of the bicyclist in such instance to have passed the pedestrian in the most convenient manner under the circumstances. 38 A very appro- priate municipal regulation is made for the manage- ment of "wheels" at night on account of their noise- less character, by requiring lights and bells to be carried thereon. It has been considered that where a cyclist rides without a signal light or bell in a public thoroughfare, where he is liable to meet mov- ing vehicles or pedestrians at a time when objects cannot be readily discerned, is, a® matter of law, 64 Parker v. Adams, 12 Met. 415, 46 Am. Dec. 694; Washburn v. Tracy, 2 D. Chip. 128, 15 Am. Dec. 661; Smith v. Smith, 2 Pick. 621, 13 Am. Dec. 464. 55 Brooks v. Hart, 14 N. H. 307; Schockley v. Shepherd, 9 Houst. 270, 32 Atl. 173. 56 Riepe v. Elting, 89 Iowa, 82, 48 Am. St. Rep. 356, 56 N. W. 285, and note, citing Smith v. Gardner, 11 Gray, 418; Wrinn v. Jones, 111 Mass. 360; Cook v. Fogarty, 103 Iowa, 500, 72 N. W. 677. 57 Meyers v. Hinds, 110 Mich. 300, 64 Am. St. Rep. 345, 68 N. W. 156. 58 Id.; Elliott on Roads and Streets, sees. 621, 622; Knowles v. Crompton, 55 Conn. 336, 11 Atl. 593. 587 INJURY TO RIGHT OF PERSONAL SECURITY. § 282 guilty of negligence. 59 A person may be liable for assault and battery by riding a bicycle against an- other standing on the sidewalk. 60 As a bicycle is considered the same as any ordinary vehicle and en- titled to all the rights and privileges of the road, it follows that a wheelman is not bound to stop and inquire whether an approaching horse is likely to be frightened or to anticipate that it will be, and hence is not liable for an injury caused by frighten- ing a horse and causing a runaway if he was observ- ing due care. 61 A person driving up a steep hill with a sharp turn in the road which prevents a bicy- clist coming down the hill from seeing the wagon com- ing up the hill is not liable for a collision, if there was sufficient room for the bicycle to pass. 62 § 282. Street Railways— Injuries Caused to Travelers by. — Opportunities are numerous for injuries to trav- elers upon the streets by the negligence of street railways. Such, for example, as may occur from the nonrepair of streets, running down travelers, colli- sions with vehicles, alighting passengers passing be- hind car and in front of car passing in opposite di- rection, and the like. The negligence causing such injuries may arise from failure to take the necessary precautions in sounding gong, keeping a lookout, running cars at unlawful rate of speed, nonrepair of streets, and so on. These various subjects will be discussed. 69 Cook v. Fogarty, 103 Iowa, 500, 72 N. W. 677. 60 Mercer v. Corbin, 117 Ind. 450, 10 Am. St. Rep. 76, 20 N. E. 132. 6i Thompson v. Dodge, 58 Minn. 555, 49 Am. St. Rep. 533, 60 N. W. 545; Holland v. Bartch, 120 Ind. 46, 16 Am. St. Rep. 307, 22 N. E. S3. 62 Rowland v. Wanamaker, 193 Pa. St. 598, 44 Atl. 918. §§ 283, 2S4 TRAVELING IN ROADS AND STREETS. 588 § 283. Street Railways— Injuries to Travelers from Nonrepair Of Streets. — Outside of ordinance or con- tract, a street railway company is not bound to keep any portion of the street in repair. So where any- one is injured by stepping into a hole between the tracks of a street railway he cannot recover, because no defect in the construction of a track contributes toward the injury. 63 But where the rails or other parts of the track protrude above the level of the street the company is responsible for any injury which flows therefrom. 64 In making excavations for the construction or repair of its road, a street railway company must cover or protect the excavations so as to prevent one traveling on the road from falling into them. 65 § 284. Street Railways Continued— Running down Travelers. — The operation of street-cars in a careless manner so as to run down persons traveling in the street, or to knock down electric wires which injure those coming in contact with them, and the operation of its machinery, such as cables and snow-plows, so as to create a nuisance, are all negligence on the part of the company. The great majority of the cases under this general branch of the subject arise 63 Egan v. Forty-second St. Ry. Co., 19 N. Y. St. Rep. 676, 4 N. Y. Supp. 530. But see Rockford City Ry. Co. v. Mathews, 50 111. App. 267; Cline v. Crescent City Ry. Co., 43 La. Ann. 327, 26 Am. St. Rep. 187, 9 South. 122; Kraut v. Frankford etc. Ry. Co., 160 Pa. St. 327, 28 Atl. 783; Oakland Ry. Co. v. Fielding, 48 Pa. St. 320. 64 Houston etc. Ry. Co. v. Medlenka, 17 Tex. Civ. App. 621, 43 S. W. 1028; Wooley v. Grand St. Ry. Co., 83 N. Y. 121; Schild v. Central Park etc. R. R. Co., 133 N. Y. 446, 28 Am. St. Rep. 658, 31 N. E. 327; Woodman v. Metropolitan Ry. Co., 149 Mass. 335, 14 Am. St. Rep. 427, 21 N. E. 482; Rockwell v. Third Ave. Ry. Co., 64 Barb. 438. 65 Fox v. Wharton, 64 N. J. L. 453, 45 Atl. 793. 589 INJURY TO RIGHT OF PERSONAL SECURITY. § 284 from negligence on the part of the street railway employees in operating the cars. It is the duty of the employees of the street rail- way company to use all reasonable precaution or ordinary care to prevent the running down of trav- elers, such as keeping a sharp lookout, ringing bells, or giving signals, keeping the car under sufficient control, and to not run at too high rate of speed. If by keeping a constant watch a driver, gripman, or motorman can see the liability of danger in time to prevent an injury, the railway company will be liable for his negligence in failing to keep such watch. 66 Thus where the driver, gripman or motorman (mo- toneer as he is called in some late decisions) allows his attention to become diverted by something with- in the car itself, 67 or by objects along the street or road, 68 the street railway company is liable for re- sulting injuries to travelers. So where a person is run down by a street-car while he was walking on the track in the same direction that the car was being driven, the company cannot set up the defense that its motorman failed to see him when it was a clear day. 69 Where the operator of a streetcar is 66 Lahey v. Central Park etc. R. R. Co., 51 N. Y. St. Rep. 589, 22 N. Y. Supp. 380; Baird v. Citizens' Ry. Co., 146 Mo. 265, 48 S. W. 78; Owens v. People's Pass. Ry. Co., 155 Pa. St. 334, 26 Atl. 748. 67 Levy v. Dry-Dock etc. Ry. Co., 35 N. Y. St. Rep. 769, S. C, 58 Hun, 610, 12 N. Y. Supp. 485; Mentz v. Second Ave R. R. Co., 3 Abb. App. Dec. 274; Mangam v. Brooklyn Ry. Co., 38 N. Y. 455, 98 Am. Dec. 66; Chilton v. Central Traction Co., 152 Pa. St. 425, 25 Atl. 606. 68 Baltimore City Ry. Co. v. McDonnell, 43 Md. 534; Schnur v. Citizens' Traction Co., 153 Pa. St. 29, 34 Am. St. Rep. 680, 25 Atl. 650; Rosenkrantz v. Lindell Ry. Co., 108 Mo. 9, 32 Am. St. Rep. 588, 18 S. W. 890; Commonwealth v. Metropolitan Ry. Co., 107 Mass. 236; Weissner v. St. Paul City Ry. Co., 47 Minn. 468, 50 N. W. 606. 69 Conway v. New Orleans etc. Ry. Co., 51 La. Ann. 146, 24 South. 780. { 285 TRAVELING IN ROADS AND STREETS. 590 aware of the likelihood of injury, it is his duty to give warning of the danger by gong, bell, or other- wise, so that the traveler may avoid it. 70 This is especially true when the company is in the habit of giving a certain warning to laborers working on the streets, which if neglected in a single instance, where- by laborers are injured through a failure to get out of the road. 71 While the measure of care required of the servants of the company is ordinary care to avoid injury, this must vary according to the circum- stances, sometimes a very high degree of care being essential. Where the consequences of negligence will probably be serious injury to others, especially to children on the track, and where the means of avoiding the injury are completely within the party's power, ordinary care requires almost the utmost de- gree of human vigilance and foresight. 72 § 285. Street Railways Continued— Rate of Speed — The question of what rate of speed may be main- tained without being negligent depends upon so many circumstances that it is surrounded by difficulty. The same rate of speed of a car may be negligence under some circumstances and not under others. A car should be run slower in a street which is crowded with people or teams than in one which is little used 70 Consolidated Traction Co. v. Chenowith, 61 N. J. L. 554, 35 Atl. 1067; Fishback v. Steinway Ry. Co., 11 App. Div. 152, 42 N. Y. Supp. 883; Owens v. People's Pass. Ry. Co., 155 Pa. St. 334, 26 Atl. 748; Mitchell v. Tacoma Ry. etc. Co., 9 Wash. 120, 37 Pac. 341; Bunyan v. Citizens* Ry. Co., 127 Mo. 12, 29 S. W. 842; Rich- mond etc. Ry. Co. v. Gartright, 92 Va. 627, 24 S. E. 267; West Chicago etc. Ry. Co. v. McCallum, 67 111. App. 645; City Pass. Ry. Co. y. Cooney, 87 Md. 261, 39 Atl. 859. 7i Owens v. People's Pass. Ry. Co., 155 Pa. St. 334, 26 Atl. 748. 72 Philadelphia etc. R. R. Co. v. Kerr, 25 Md. 531; Schmidt v. St. Louis R. R. Co., 149 Mo. 269, 73 Am. St. Rep. 380, 50 S. W. 921; Kelsey v. Barney, 12 N. Y. 425. 591 INJURY TO RIGHT OF PERSONAL SECURITY. § 285 or along a country road, 73 or where there are apt to be persons crossing the track as at regular street crossings than at other places, 74 and especially if those persons are liable to be children. 75 So, too, it would certainly be negligence to increase the speed of a car when persons are on the track a short dis- tance ahead. 76 Again, a car should be run slower at night than during the day, if there is no headlight or means of seeing anyone upon the track at any dis- tance ahead of the car. At least it should be run slowly enough to enable the motorman to stop the car within the distance covered by the light or to which he can easily see. 77 The negligence may also consist in running faster than the ability to control the car will warrant. So where the car is descend- ing a hill where persons are continually crossing, 78 or a car is overloaded and cannot be stopped within a reasonable distance, or a defect in the brakes gives the motorman a shock when he attempts to use them and thus interferes with his endeavors to stop the car, 79 there is such negligence as will render the com- pany liable for injury proximately resulting there- from. Again, more vigilance is demanded of a motorman on an electric-car than of a gripman on a cable-car, 73 Hoffman v. Syracuse etc. Ry. Co., 63 N. Y. Supp. 442, 50 App. Div. 83. 74 Citizens' Pass. Ry. Co. v. Cooney, 87 Md. 261, 39 Atl. 859; Ber- gen Ry. Co. v. Heitman, 61 N. J. L. 682, 40 Atl. 651. 75 Bergen Ry. Co. v. Heitman, 61 N. J. L. 682, 40 Atl. 651. 76 Grimby v. Metropolitan St. Ry. Co., 51 N. Y. Supp. 553, 29 App. Div. 335; Barnes v. The Railway Co., 47 La. Ann. 1218, 49 Am. St. Rep. 400, 17 South. 782. 77 Gilmore v. Federal etc. Ry. Co., 153 Pa. St. 31, 34 Am. St. Rep. 682, 25 Atl. 651. 78 Dallas Ry. Co. v. Elliott, 7 Tex. Civ. App. 216, 26 S. W. 455. 79 Thompson v. Salt Lake etc. Co., 16 Utah, 281, 67 Am. St. Rep. 621, 52 Pac. 92. § 286 TRAVELING IN ROADS AND STREETS. 592 and of both these than a driver on a horse-car, be- cause of the greater speed and difficulty in stopping a car. 80 If a child or other person goes unexpect- edly in front of a car, and the motorman has no rea- son to expect any such an act, and the injury would have occurred in the same way if the car is going at a normal and reasonable speed, the fact that it was being run at a high rate of speed does not render the company liable, as the excessive speed cannot be said to be the proximate cause of the injury. 81 Street railway companies cannot be held for an injury to a child who suddenly runs in front of a moving car, or to one who, in an absent-minded way, walks in front of a car, when they are using due care. 82 § 286. Street Railways Continued— Violation of Or- dinance. — The question of whether or not the viola- tion of a valid statute or ordinance is per se negli- gence is one upon which the decisions are not har- monious; it has been discussed at some length in a previous chapter. 83 It will be sufficient in this con- nection to say that in some states it is held that the violation of a municipal ordinance regulating the speed at which street-cars are to be operated upon its streets is negligence per se, 84 while in others it is held that it is mere prima facie evidence of negli- 80 Gilmore v. Federal etc. Ry. Co., 153 Pa. St. 31, 34 Am. St. Rep. 682, 25 Atl. 651. 81 Holdridge v. Mendenhall, 108 Wis. 1, 81 Am. St. Rep. 871, 83 N. W. 1109; Funk v. Electric Traction Co., 175 Pa. St. 559, 34 Atl. 861., 82 Driscoll v. Market St. Ry. Co., 97 Cal. 553, 33 Am. St. Rep. 203, 32 Pac. 591; Winters v. Kansas City Ry. Co., 99 Mo. 509, 17 Am. St. Rep. 591, 12 S. W. 652. 83 Ante, sec. 255. 84 Omaha etc. Ry. Co. v. Duvall, 40 Neb. 29, 58 N. W. 531; Mueller v. Milwaukee etc. Ry. Co., 86 Wis. 340, 56 N. W. 914. 593 INJURY TO RIGHT OP PERSONAL SECURITY. § 2S7 gence sufficient to go to the jury, 85 but that it is not conclusive, because the excessive speed may not be the proximate cause of the accident. 86 § 287. Same— Alighting Passenger Passing in Front of Car Going in Opposite Direction. — One of the great- est menaces to travelers upon crowded streets of cities comes from the necessity of passengers who alight from the car on which they have been riding, and who have occasion to pass around behind the car from which they have just alighted, over and across the other track, and frequently in front of cars going in the opposite direction on such other track. The respective duties of such person and the servants in charge of the cars of the railway is an interesting problem. Circumstances and conditions are so varied that no hard-and-fast rule can be laid down to which the traveler must conform. Conse- quently, we are sure that the question is in most cases, following the familiar doctrine that where the facts are disputed, or where different minds might honestly draw different conclusions from them, one for the jury. 87 Where a passenger has been in the habit of daily traveling on a particular car at stated times with knowledge that when he alights and passes behind, there is always another car passing in an opposite direction on the other track, a greater degree of precaution should be expected of him com- mensurate with his knowledge. But if such person has not such knowledge, but is only aware of the run- ning of cars in general, not so much care is to be ex- 85 Wright v. Maiden and Ry. Co., 4 Allen, 283; Weber v. Kansas City Cable Ry. Co., 100 Mo. 194, 18 Am. St. Rep. 541, 12 S.W. 804, 13 S. W. 587. 86 Hanlon v. South Boston Horse R. R. Co., 129 Mass. 310. 87 Consolidated Traction Co. v. Scott, 58 N. J. L. 682, 55 Am. St. Rep. 620, 34 Atl. 1094. Torts, Vol. 1—38 i 288 TRAVELING IN ROADS AND STREETS. 594 pected of him. The general rule that he must observe ordinary care, must use his senses, his eyes, his ears, and must do that which is reasonable under the cir- cumstances to avoid injury to himself, must govern and control his actions. As stated by one court: "Undoubtedly, the footman must reasonably use his senses for his own protection, and if he knows of the approach of a vehicle, and, using his faculties, perceives that he cannot continue on without dan- ger of collision, he may not rush forward regardless of consequences." He is not bound to anticipate negligence on the part of drivers of vehicles, but has the right to as- sume that they will not be negligent. 88 The ordinary rules governing the conduct of persons about to cross the street are called into use here, and this is dis- puted ground as shown at another place. In one very strong case the court held that ordi- nary care does not require the traveler to look in both directions for the approach of a car, and hence failure so to do does not constitute negligence. Con- sequently, if in such case the servants of the railway have been guilty of negligence, there can be recov- ery* 9 The questions in such cases, as already stated, will ordinarily be for the jury. 90 Negligence of the railway will arise when its servants fail to observe the rights of such persons, running at a high rate of speed, failure to sound the gong, and the like. 91 § 288. Street Railways— Relative Rights of Travelers at Crossings. — Street railways stand on no different footing with respect to the right to use the streets 88 Cincinnati St. Ry. v. Snell, 54 Ohio St. 206, 43 N. E. 207. 89 Cincinnati Street Ry. v. Snell, 54 Ohio St 197, 43 N. E. 207. 90 Id.; Consolidated Traction Co. v. Scott, 58 N. J. L. 682, 53 Am. St. Rep. 620, 34 Atl. 1094. si Id. 595 INJURY TO RIGHT OF PERSONAL SECURITY. § 28S in connection with foot-travelers, than do ordinary vehicles. Their rights are equal. As matter of law, it is as mnch the duty of the vehicle to keep out of the way of the footman, and especially so at cross- ings, as it is for the latter to escape being run over, giving due consideration to the greater difficulty of guiding and arresting the progress of the vehicle. 92 There is no priority of right, so that the right of neither is exclusive. What, then, is the respective duty of each — footman and railway company? Ordinary care being the standard required of each, what precautionary measures on the part of the foot- man must be observed to avoid injury? It is pretty generally conceded that the observance of due care does not require him to "stop, look, and listen" to the same extent and manner as is necessary in approach- ing and crossing steam railway tracks. At least, as matter of law, it is not negligence on his part by failing so to do, as it is in crossing the ordinary steam railroad. 93 Mr. Justice Spear, 94 speaking with ref- erence to this subject, said: "We suppose the rule for street-cars is the same as for other vehicles, and if the footman is required, in a crowded thoroughfare, to look up and down and wait until all possibility of collision is past, it would be like sitting on the 92 Cincinnati Street Ry. v. Snell, 54 Ohio St 205, 43 N. E. 207. 93 Moebus v. Herrmann, 108 N. Y. 354, 2 Am. St. Rep. 440, 15 N. E. 415; Shea v. St. Paul City Ry., 50 Minn. 395, 52 N. W. 902; Newark Passenger Ry. Co. v. Block, 55 N. J. L. 605, 27 Atl. 1067; Lynam v. Union Ry., 114 Mass. 83; Consolidated Traction Co. v. Scott, 58 N. J. L. 682, 55 Am. St. Rep. 620, 34 Atl. 1094; Cincinnati Street Ry. v. Snell, 54 Ohio St. 197, 208, 43 N. E. 207; Evansville St. Ry. Co. v. Gentry, 147 Ind. 408, 62 Am. St. Rep. 421, 44 N. E. 311; Kennedy v. St. Paul City Ry., 59 Minn. 45, 60 N. W. 810. Held, negligence per se not to "look and listen": Omslaer v. Pitts- burg etc. Traction Co., 168 Pa. St. 519, 47 Am. St. Rep. 901, 32 Atl. 50. 94 Cincinnati St. Ry. v. Snell, 54 Ohio St. 208, 43 N. E. 207. § 288 TRAVELING IN ROADS AND STREETS. 590 bank until the stream should run dry, and there would be but few hours in the busy part of the day when it would be practicable to cross." In Pennsylvania, so much of the rule as requires a person about to cross the tracks of a steam railroad to "look and listen" to discover whether a train is approaching is applicable to the crossing of a street railway operated by cable or electricity. 95 But at the same time it is properly said in this state that: "There is no settled rule which demands that he shall stop before crossing a street railway, nor does it appear desirable that there should be. Such a rule would materially interfere with travel on the street, and ordinarily there would be no occasion to apply it, 'because, on nearing the crossing, his sight and hearing would sufficiently advise him whether there was opportunity for safe passage over it. There may be, however, situations in which ordinary care would require that he should stop as well as look and listen before attempting to cross." 96 There is commendable wisdom in this statement. While the "look and listen" rule cannot be logically applied to street railways, because of the radical difference between the method of operation of steam and street railways, there is sound logic and reason in the rule that one about to cross a street should look in both directions before going upon the track. 9 ? 7 Street- 95 Carson v. Federal Street Ry., 147 Pa. St 219, 30 Am. St. Rep. 727, 23 Atl. 369; Ehrisman v. East Harrisburg etc. Ry., 150 Pa. St. 180, 24 Atl. 596; Wheelahan v. Philadelphia Traction Co., 150 Pa. St. 187, 24 Atl. 688; Omslaer v. Pittsburg etc. Traction Co., 168 Pa. St. 519, 47 Am. St. Rep. 901, 32 Atl. 50. 96 Omslaer v. Pittsburg etc. Traction Co., 168 Pa. St. 519, 47 Am. St. Rep. 901, 32 Atl. 50. 97 McGee v. Consolidated St. Ry. Co., 102 Mich. 107, 47 Am. St. Rep. 507, 60 N. W. 293; Gardner v. Detroit etc. Ry., 97 Mich. 240, 56 N. W. 603; Driscoll v. Market etc. Ry. Co., 97 Cal. 553, 33 Am. St. Rep. 203, 32 Pac. 591. 597 INJURY TO RIGHT OF PERSONAL SECURITY. § 289 cars are such a convenience and necessity in modern city life, and people have become accustomed to them as much as they have to ordinary vehicles; they pass frequently and may be stopped speedily, and people familiar with this hurried method of travel are ex- pected to keep up with the times and regulate their conduct accordingly. Consequently, what would be contributory negligence on the part of those perfectly familiar with modern methods would not be as to those who are unfamiliar therewith. These sugges- tions make it apparent that the "look and listen" rule applicable to steam railroads which do not run in crowded thoroughfares, but which run through the country at comparatively long intervals of time can have no possible application to street railway service. 98 This much for the duties of the footman. Next as to the duties of the servants or agents of the railway company. § 289. Same Continued — Care Required of Railway at Street Crossings. — The rights of pedestrians or of persons in vehicles and street railways being equal, it follows that the servants of the railway company must observe such precautions as will be reasonably necessary to protect those using the street crossings. Much greater caution must be observed by the com- pany at such crossings than on the street between them, though this does not warrant the inference that a car may be run without caution except on approaching the crossing. Not only must the ser- vants be on the lookout for pedestrians crossing the street, but also for persons who may be alighting from a car stopping at the same crossing, who may turn and go across the track upon which a car may 98 Driscoll v. Market St Cable Ry. Co., 97 Cal. 553, 33 Am. St. Rep. 203, 32 Pac. 591. § 289 TRAVELING IN ROADS AND STREETS. 598 be coming from the other direction. Servants of the company must bear in mind that an alighting pas- senger who turns to go across the other track by going in the rear of the car does not have an oppor- tunity to observe the approach of the car on the other track. The motorman should, therefore, constantly sound the gong, and regulate the speed of his car so that he may readily control it. The company is re- quired to regulate the movements of its cars at the intersection of streets when receiving or discharging passengers from a standing car, as not to unneces- sarily expose pedestrians to danger from collision with a passing car on an adjacent track." The com- pany is held to a degree of care commensurate with the circumstances of each particular case, and with the dangers incident to the propelling power used by it. The circumstances necessarily vary, and the conduct of the parties must be considered in the light of their surroundings. It is the clear duty of a motorman, when he ap- proaches a public crossing, to look and ascertain whether or not the track is clear, to sound the gong as a warning, and to keep his car under control. A failure to do this is negligence. 100 Not only must he keep a lookout, but he must run his car at such a rate of speed, upon approaching the crossing, keep- ing such control of his car as will enable him upon discovering danger of a traveler to bring it to a full stop. 10 * Eapid running at a crossing, or running a car over a crossing at a rapid rate of speed, without 99 Consolidated Traction Co. v. Scott, 58 N. J. L. 682, 55 Am. St. Rep. 620, 34 Atl. 1094. 100 Hall v. Ogden City St. Ry., 13 Utah, 243, 57 Am. St. Rep. 726, 44 Pac. 1046; Johnson v. Reading City Pass. Ry., 160 Pa. St. 647, 40 Am. St. Rep. 752, 28 Atl. 1001. 101 Birmingham Ry. etc. Co. v. City Stable Co., 119 Ala. 615, 72 Am. St. Rep. 955, 24 South. 558. 599 INJURY TO RIGHT OF PERSONAL SECURITY. § 290 slowing up the car is itself evidence of negligence. 103 So is it negligence on the part of the gripman or mo- torman to gaze at houses or other objects while the car is in motion. 103 It is said that he should exer- cise the highest degree of care to avoid collisions at street crossings, and to use air care that prudence may suggest in looking about and listening to assure himself that the track is clear and safe. 104 Failure to ring a bell at a street crossing is negligence. 105 The question of what is proper care and precau- tion on the part of those in charge of cars to prevent accident is a question of fact in each case. 106 So in the case of one who, upon alighting from a car passes behind it and attempts to cross another track when he is struck by an approaching car, which is being run at its ordinary speed, but there is no evidence that any signal or warning of its approach is given, the questions of the negligence of the company and that of the injured are for the jury. 107 § 290. Street Railways Continued— Negligence of the Company Must be the Proximate Cause.— in this as in other branches of negligence the injury must be the proximate result of the acts or omissions of the street railway company. So the company is not liable for 102 Evers v. Philadelphia Traction Co., 176 Pa. St. 376, 53 Am. St. Rep. 674, 35 Atl. 140; Evansville St. R. R. Co. v. Gentry, 147 Ind. 408, 62 Am. St. Rep. 421, 44 N. E. 311. 103 Schnur v. Citizens' Traction Co., 153 Pa. St. 29, 34 Am. St. Rep. 680, 25 Atl. 650. 104 Thoresen v. La Crosse City Ry. Co., 87 Wis. 597, 41 Am. St. Rep. 64, 58 N. W. 1051. 105 Driscoll v. Market Street etc. Ry., 97 Cal. 553, 33 Am. St. Rep. 203, 32 Pac. 591. 106 Schulman v. Houston Ry. Co., 15 Misc. Rep. 30, 36 N. Y. Supp. 439; Consolidated Traction Co. v. Scott, 58 N. J. L. 682, 55 Am. St. Rep. 620, 34 Atl. 1094; Driscoll v. Market St. Ry. Co., 97 Cal. 553, 33 Am. St. Rep. 203, 32 Pac. 591. 107 Dobert v. Troy City Ry. Co., 91 Hun, 28, 36 N. Y. Supp. 105. § 291 TRAVELING IN ROADS AND STREETS. 600 a failure to provide a headlight for a street-car when it has complied with a city ordinance by dis- playing colored lights on the front and rear of the car. 108 Nor for a failure of its employees to sound a gong or bell where the person injured saw or knew that the car was coming. 109 Again, if the person in- jured comes upon the track so close to the car that it cannot be stopped in time to avoid injury with the use of reasonable care, the company is not lia- ble. 110 And this is true whether the company is neg- ligent in that the motorman did not keep a close watch or not. 111 A motorman has the right to as- sume that a person about to cross the street can hear and will stop before reaching the track to allow the car to pass. 112 § 291. Street Railway Companies— Contributory Neg- ligence. — The usual doctrines of contributory negli- gence also apply to this subject, and if the negli- gence of the person injured is the proximate cause of his injury, this will defeat his right of recovery. 108 McGee v. Consolidated St. Ry. Co., 102 Mich. 107, 47 Am. St Rep. 507, 60 N. W. 293. 109 Bethel v. Cincinnati St. Ry. Co., 15 Ohio C. C. 381, 8 Ohio Dec. 310; Anderson v. Metropolitan St. Ry. Co., 61 N. Y. Supp. 899, 30 Misc. Rep. 104; Driscoll v. Market St. Ry., 97 Cal. 553, 33 Am. St. Rep. 203, 32 Pac. 591. no Driscoll v. Market St. Ry. Co., 97 Cal. 553, 33 Am. St. Rep. 203, 32 Pac. 591; Kennedy v. St. Louis Ry. Co., 43 Mo. App. 1; Trumbo v. City Street-car Co., 89 Va. 780, 17 S. E. 124; Fenton v. Second Ave. Ry. Co., 126 N. V. 625, 26 N. E. 967; Dorman v. Broad- way Ry. Co., 117 N. Y. 655, 23 N. E. 162; Bernhard v. Rochester Ry. Co., 68 Hun, 369, 22 N. Y. Supp. 821; Ewing v. Atlantic Ave. Ry. Co., 34 N. Y. St. Rep. 113, 11 N. Y. Supp. 626; Coughtry v. Willamette Ry. Co., 21 Or. 245, 27 Pac. 1031; Christensen v. Union Trunk Line, 6 Wash. 75, 32 Pac. 1018; McManigal v. South Side Ry. Co., 181 Pa. St. 358, 37 Atl. 516. in Graham v. Consolidated etc. Ry. Co., 64 N. J. L. 10, 44 Atl. 964; Gould v. Union Traction Co., 190 Pa. St. 198, 42 Atl. 477. 112 Schulte v. Ry. Co., 44 La. Ann. 509, 10 South. 811. 601 INJURY TO RIGHT OF PERSONAL SECURITY. § 291 So if one sees or knows that a car is coming in time to avoid it and fails to do so, 113 or if he neglects to make use of his senses such as will inform him as to the safety of crossing the tracks, 114 the railway com- pany will not be liable, unless the act of the operator of the car was willful and malicious. 115 The fact that the injured person has voluntarily prevented himself from using some of his faculties, as where a driver goes across a street-car track with drawn curtains on his carriage, 116 or by wearing a wide sunbonnet which obstructs the view, 117 or by the excessive use of intoxicants, 118 does not relieve him from the duty to make use of these senses which are impaired. Again, if by nature certain means of ob- servation are disabled, one is not relieved from the duty to make use of those capable of being used. In- deed, it would seem that he ought to be more diligent in the use of his faculties which are unimpaired. Those who are deaf and blind come under this rule. 119 us Flanagan v. People's etc. Ry. Co., 163 Pa. St. 102, 29 Atl. •743; Block v. Harlem etc. Ry. Co., 28 N. Y. St. Rep. 495, 9 N. Y. Supp. 164; Morey v. Glocester Ry. Co., 171 Mass. 164, 50 N. E. 530; Patterson v. Townsend, 91 Iowa, 725, 59 N. W. 205. 114 Thompson v. Buffalo Ry. Co., 145 N. Y. 196, 39 N. E. 709; O'Rourke v. New Orleans Ry. Co., 51 La. Ann. 755, 25 South. 323; Sheets v. Connolly Ry. Co., 54 N. J. L. 518, 24 Atl. 483; Masser v. Chicago etc. Ry. Co., 68 Iowa, 602, 27 N. W. 776; Brady v. Con- solidated Traction Co., 63 N. J. L. 25, 42 Atl. 1054; Morey v. Glou- cester Ry. Co., 171 Mass. 164, 50 N. E. 530; Mullen v. Springfield St. Ry. Co., 164 Mass. 450, 41 N. E. 664. us Fonda v. St. Paul City Ry. Co., 71 Minn. 438, 70 Am. St. Rep. 341, 74 N. W. 166. lie Thomas v. Citizens' Pass. Ry. Co., 132 Pa. St. 504, 19 Atl. 286. 117 Schulte v. New Orleans etc. Ry. Co., 44 La. Ann. 509, 10 South. 811. lis West Chicago Ry. Co. v. Ranstead, 70 111. App. Ill; Button v. Hudson etc. Ry. Co., 18 N. Y. 248. 119 Thompson v. Salt Lake etc. Co., 16 Utah, 281, 67 Am. St. Rep. 621, 52 Pac. 92; Robbins v. Springfield Ry. Co., 165 Mass. 30, §1 292, 293 TRAVELING IN ROADS AND STREETS. 602 § 292. Rights of Travelers to Use Tracks.— The rights of travelers on the streets and of street rail- way companies in their use being correlative, it fol- lows that one driving upon the tracks cannot be con- sidered as a trespasser, but he should yield the track promptly on sight of an approaching car, and may be considered at fault if he negligently remains there. 120 § 293. Steam Railway Crossings— Relative Rights of Travelers and Railway.— Under this heading the gen- eral rules and principles of law governing the duties and obligations of persons on foot or in vehicle, cross- ing tracks of steam railways, and the agents or ser- vants of the railway, will be briefly discussed, an ex- tended treatment of the subject being here impracti- cable. It is said that "in a sense the rights of the trav- eler and the railroad company upon a highway cross- ing are equal. Neither has an exclusive right to use it, and both are bound to do what the law requires of them. The right of the company is, however, superior in one respect, and that is, the right to. the priority of passage. Of necessity this must be true, since it cannot be legally possible that trains must be brought to a halt at every highway crossing in order to allow travelers to cross." 131 The railroad 42 N. E. 334; Hall v. West End etc. Ry. Co., 168 Mass. 461, 47 N. E. 124; Schulte v. New Orleans etc. Ry. Co., 44 La. Ann. 509, 10 South. 811. 120 Thatcher v. Central Traction Co., 166 Pa. St. 66, 45 Am. St. Rep. 645, 30 Atl. 1048; Rascher v. East Detroit etc. Ry. Co., 90 Mich. 413, 30 Am. St. Rep. 447, 51 N. W. 463. 121 Chicago etc. R. R. Co. v. Boggs, 101 Ind. 522, 51 Am. Rep. 761; Ohio etc. R. R. Co. v. Walker, 113 Ind. 196, 3 Am. St. Rep. 638, 15 N. E. 234; Louisville etc. Ry. Co. v. Phillips, 112 Ind. 59, 2 Am. St. Rep. 155, 13 N. E. 132; English v. Southern Pacific Co., 13 Utah, 407, 57 Am. St. Rep. 772, 45 Pac. 47. 603 INJURY TO RIGHT OF PERSONAL SECURITY. § 294 company as owner has the right of passage and of use of its tracks at highway crossings in the ordi- nary manner, and so do the public have a right of way and of passage across the railroad track to be used and enjoyed in the ordinary manner. These rights are reciprocal, and must be exercised with a due re- gard to the rights of each other. 123 § 294. Same Continued— Specially of the Duty of Traveler on Approaching Crossing. — A traveler who ap- proaches the highway is bound to know that he must give way to the trains, and that he has no right to expect them to slacken speed, much less to stop, and yield him priority of passage. 133 The degree of care which persons approaching railroad crossings must observe is ordinary, 134 and this requires all precau- tions suggested by the natural instincts of self-pres- ervation. Every person of capacity is bound to know that a railroad is a place of danger, the track itself being a warning of danger. 135 So, ordinary prudence demands that persons about to cross a railroad, rec- ognizing this danger, must make use of their sense 122 Kelly v. Michigan Central R. Co., 65 Mich. 186, 8 Am. St. Rep. 876, 31 N. W. 904; Favor v. Boston etc. Ry. Co., 114 Mass. 350, 19 Am. Rep. 364; Kay v. Pennsylvania Ry. Co., 65 Pa. St. 269, 3 Am. Rep. 628; Beisiegel v. New York Cent. Ry. Co., 40 N. Y. 9; Leavenworth etc. Ry. Co. v. Rice, 10 Kan. 426; Lehigh etc. Ry. Co. v. Brandtmaier, 113 Pa. St. 610, 6 Atl. 238. 123 Indiana etc. Ry. Co. v. Greene, 106 Ind. 279, 55 Am. Rep. 736, 6 N. E. 603; Ohio etc. Ry. Co. v. Walker, 113 Ind. 196, 3 Am. St. Rep. 638, 15 N. E. 234; Beach on Contributory Negligence, 191. 124 2 Thompson on Negligence, sec. 1609; Dallas etc. Ry. Co. v. Able, 72 Tex. 150, 9 S. W. 871. 125 Allyn v. Boston etc. R. R. Co., 105 Mass. 79; Lake Shore etc. R. R. Co. v. Miller, 25 Mich. 290; Hinken v. Iowa Cent. Ry. Co. (Iowa, 1896), 97 Iowa, 603, 66 N. W. 883; Vincent v. Mor- gan etc. R. Co., 48 La. Ann. 933, 55 Am. St. Rep. 287, 20 South. 207; Guhl v. Whitcomb, 109 Wis. 69, 83 Am. St. Rep. 889, 85 N. W. 142. § 294 TRAVELING IN ROADS AND STREETS. 004 of hearing and sight to see if a train is approaching, Avhich is liable to occur at any moment. They must look out for signboards and signals, and listen for bell or whistle. If a person approaching a crossing fail to observe these precautions, he is himself negli- gent, and cannot complain unless the company's neg- ligence is the proximate cause of the injury. 126 A person who thoughtlessly walks upon a track is guilty of culpable negligence. 127 All the essential precau- tions are embraced in the "stop, look, and listen" rule which is universally adopted as the measure of duty required of travelers, so well established and under- stood as not to warrant extended citations. 128 In Kansas it is held that it is not ordinarily the duty of a traveler approaching a railroad track to stop, but that there may be cases where, by reason of ob- structions or noises in the vicinity, that he would be required to stop and listen before crossing the track. 129 An examination of the numerous cases up- 126 Lake Shore etc. R. R. Co. v. Miller, 25 Mich. 290; Railroad Co. v. Houston, 95 V. S. 697; Pennsylvania R. R. Co. v. Richter, 42 N. J. L. 180; Payne v. Western etc. Ry. Co., 13 Lea, 522, 49 Am. Rep. 666: Union Pac. Ry. Co. v. Adams, 33 Kan. 427, 6 Pac. 429; Reading etc. R. R. Co. v. Ritchie, 102 Pa. St. 425, 9 Am. & Eng. R. R. Cas. 261; Railroad Co. v. Houston, 95 TJ. S. 697; Durbin v. Oregon etc. R. Co., 17 Or. 5, 11 Am. St. Rep. 778, 17 Pac. 5. 127 Railroad Co. v. Houston, 95 U. S. 697. 128 Stakus v. New York Cent. R. R. Co., 79 N. Y. 469; Pittsburg etc. R. R. Co. v. Wright, 80 Ind. 182; Durbin v. Oregon R. R. etc. Co., 17 Or. 5, 11 Am. St. Rep. 778, 17 Pac. 5; Hinkle v. Richmond etc. R. Co., 109 N. C. 472, 26 Am. St. Rep. 581, 13 S. E. 884; Myn- ning v. Detroit etc. R. R. Co., 64 Mich. 93, 8 Am. St. Rep. 804, 31 N. W. 147; Brown v. Texas etc. Ry., 42 La. Ann. 350, 21 Am. St. Rep. 374, 7 South. 682; Miller v. Louisville etc. Ry., 128 Ind. 97, 25 Am. St. Rep. 416, 27 N. E. 339; State v. Baltimore etc. R. R. Co., 69 Md. 494, 9 Am. St. Rep. 436, 16 Atl. 210; O'Connor v. Missouri etc. Ry. Co., 94 Mo. 150, 4 Am. St. Rep. 364, 7 S. W. 106; Moebus v. Herrmann, 108 N. Y. 349, 2 Am. St. Rep. 440, 15 N. E. 415; Penn- sylvania Ry. Co. v. Bell, 122 Pa. St. 58, 15 Atl. 561. 129 Atchison etc. R. R. Co. v. Hague, 54 Kan. 284, 45 Am. St. Rep. 278, 38 Pac. 257. €05 INJURY TO RIGHT OF PERSONAL SECURITY. § 294 on this point will show that in most instances the re- quirement is that the traveler shall look and listen, and, when necessary, stop. The duty to look and listen is absolute, where opportunity exists, and no diversion of attention will excuse an omission to do so, except in cases where the attention is irresistibly forced to something else as to deprive the person from doing so. 130 The application of this rule of extensive operation varies and depends upon condi- tions and circumstances. In some cases particular circumstances may require a person to get out of his vehicle and go forward on foot, for the purpose of looking, 131 while in other instances this may not be necessary. 132 The observance of the precaution of looking and listening is imperative at all times, even though a person may know that a train is behind time, 133 or though the train is a special or extra, 134 or though it may not be the hour when the regular train is expected. 135 Under certain conditions it may be impossible to use all senses in avoiding dangers, which makes it doubly necessary to use those facul- ties which may be used. If there are obstructions so that one cannot see, then the exercise of ordinary care requires that the person shall listen. 136 It has 130 Guhl v. Whitcomb, 109 Wis. 69, 83 Am. St Rep. 889, 85 N. W. 142; Aiken v. Pennsylvania R. R. Co., 130 Pa. St. 380, 17 Am. St. Rep. 775, 18 Atl. 619. 131 Pennsylvania R. R. Co. v. Beale, 73 Pa. St. 509, 13 Am. Rep. 753. 132 Stakus v. New York Cent. R. R. Co., 79 N. Y. 467; Pittsburgh etc. R. R. Co. v. Wright, 80 Ind. 182. 133 Salter v. Utica etc. R. R. Co., 75 N. Y. 273; State v. Phila- delphia etc. R. R. Co., 47 Md. 76; Durbin v. Oregon etc. R. Co., 17 Or. 5, 11 Am. St. Rep. 778, 17 Pac. 5. 134 Schofleld v. Chicago etc. R. R. Co., 114 U. S. 615. 135 Hinkle v. Richmond R. Co., 109 N. C. 472, 26 Am. St. Rep. 581, 13 S. E. 884. 136 Union Pac. Ry. Co. v. Adams, 33 Kan. 431, 6 Pac. 529. § 294 TRAVELING IN EOADS AND STREETS. 606 been held, though, that a traveler is bound to look, when to do so would aid him in determining whether a train is approaching; that in all other respects he has a right to rely upon his ears. 137 Slightly differ- ent opinions have been expressed as to the correla- tive duty of railway company and traveler when the view is obstructed, Justice Sharswood holding in one case that where the line is obstructed that the traveler must come to a full stop before attempting to cross the track, failure to do so constituting negli- gence. 138 The governing principle would seem to re- quire that the traveler take into consideration the surrounding conditions and make use of his senses as a prudent man would when so situated. 139 In some cases it has been considered that the nature of some obstructions makes it incumbent upon the company to observe a greater degree of care to avoid injury. 140 The traveler, likewise, must be more cau- tious under such circumstances, though the care which he must use is but ordinary under the circum- stances. 141 If he cannot see an approaching train by reason of the obstruction in time to stop before colliding with it, if he knows that a train is due at about the time he is crossing, and he is unable to hear it by reason of the force and direction of the wind, 137 Hinkle v. Richmond etc. R. Co., 109 N. C. 472, 26 Am. St. Rep. 581, 13 S. E. 884; 2 Wood on Railroad Law, p. 1310, sec. 343; Kenney v. Hannibal etc. Ry. Co., 105 Mo. 270, 15 S. W. 983, 16 S. W. 837. 138 Pennsylvania R. R. Co. v. Beale, 73 Pa. St. 504, 13 Am. Rep. 753. 139 Kansas Pac. Ry. Co. v. Richardson, 25 Kan. 391. 140 Pennsylvania Ry. Co. v. Matthews, 36 N. J. L. 531; Houston etc. Ry. Co. v. Wilson, 60 Tex. 142 (curves or cuts); Richardson v. New York Cent. Ry. Co., 45 N. Y. 846 (cars on track); Rockford etc. Ry. Co. v. Hillmer, 72 111. 235 (building); Cordell v. New York Cent. Ry. Co., 75 N. Y. 330 (special care). 141 Vincent v. Morgan etc. R. Co., 48 La. Ann. 933, 55 Am. St Rep. 287, 20 South. 207. 607 INJURY TO RIGHT OF PERSONAL SECURITY. § 295 or of noises in the vicinity, ordinary care requires him to stop his team while he may do so, and listen for the train. 142 And so does common prudence re- quire of one who is approaching an obstructed cross- ing to do so at such a rate of speed as that he may be able to stop and allow it to pass. 143 § 295. Same Continued— Duty of Railway Company at Crossings. — A railway company must use such reasonable care and precaution to avoid injury to travelers at railroad crossings as ordinary prudence demands, which varies according to circumstances. 144 The measure of the care which the servants of the company are required to observe is usually, and per- haps universally, prescribed by statute in all the states, such as the giving of warning, by sounding the bell and blowing the whistle. No general duty rests upon such servants to a traveler whom they see ap- proaching a crossing, being warranted in assuming that he will regard the signals when given. 145 In some states the legislation upon this matter is exhaustive, and defines the whole duty of railways, 146 it being held in such cases that failure to provide other sig- nals or means of warning than those provided by statute does not constitute negligence. 147 The duty in this particular varies and depends entirely upon conditions and circumstances. 142 Seefeld v. Chicago etc. R. R. Co., 70 Wis. 216, 5 Am. St. Rep. 168, 35 N. W. 278. 143 Allen v. Maine etc. R. R. Co., 82 Me. Ill, 19 Atl. 105; Cin- cinnati etc. Ry. Co. v. Howard, 124 Ind. 280, 19 Am. St. Rep. 96, 24 N. E. 892. 144 Central etc. Ry. Co. v. Kuhn, 86 Ky. 578, 9 Am. St. Rep. 309, 6 S. W. 441. 145 Dyson v. N. Y. etc. R. R. Co., 57 Conn. 9, 14 Am. St. Rep. 82, 17 Atl. 137. 146 Id.; Weber v. New York Cent R. R. Co., 58 N. Y. 451. 147 Id. § 296 TRAVELING IN ROADS AND STREETS. 608 § 296. Same Continued— When Railway does not Give Signal. — It is generally provided by statute in the states that railway companies shall give signals by blowing the whistle and sounding the bell upon ap- proaching a crossing. Following the rule discussed elsewhere 148 that the violation of a statute is per se negligence, upon which principle the adjudged cases, without conflict, declare that the omission to give the signals required by statute constitutes such negli- gence as will render the company liable to one who, without fault on his part, has suffered injury as the result of that negligence. Such negligence makes a prima facie case, but contributory negligence, if the proximate cause, will bar recovery. 149 The traveling public have a right to assume that a railway company will perform its duty and give the required signals, and if a person about to cross a track cannot see or hear an approaching train, he will not be charged with con- tributory negligence in assuming that there is no train moving. 150 If, however, when signals are properly given, a person attempts to cross, but miscalculates as to his chances of crossing, the risk is his, and he cannot recover; 151 and even though the signals are not given, the company cannot be held where the trav- 148 Ante, sec. 255. 149 Sauerborn v. New York Ry. Co., 69 Hun, 429, 28 N. Y. Supp. 478; McCormick v. Kansas etc. Ry. Co., 50 Mo. App. 109; Parker v. Wilmington etc. Ry. Co., 86 N. C. 221; Toledo etc. Ry. Co. v. Jones, 76 111. 311; Chicago etc. Ry. Co. v. Boggs, 101 Ind. 522, 51 Am. Rep. 761; Brown v. Texas etc. Ry. Co., 42 La. Ann. 350, 21 Am. St. Rep. 374, 7 South. 682. See 36 Am. St. Rep. 817, note. 150 Kennayde v. Pacific R. Co., 45 Mo. 255; Pennsylvania R. Co. v. Ogier, 35 Pa. St. 60, 78 Am. Dec. 322; Beiseigel v. New York Cent. R. Co., 34 N. Y. 622, 90 Am. Dec. 741; Indianapolis v. Gaston, 58 Ind. 224; French v. Taunton Branch R. Co., 116 Mass. 537; Bon- nell v. Delaware etc. R. Co., 39 N. J. L. 189. 151 Hinkle v. Richmond etc. R. R. Co., 109 N. C. 472, 26 Am. St. Rep. 581, 13 S. E. 884. 609 INJURY TO RIGHT OF PERSONAL SECURITY. § 297 eler has notice of the approach of a train. 153 And so is it concurring negligence for the traveler to omit to lise his senses. 153 § 297. Same Continued— Duties and Liabilities of Company with Respect to "Gates" and "Flagmen."— The -prevalent judicial opinion undoubtedly supports the view that in the absence of statute a railway com- pany is not required to provide gates or flagman at their crossings, the question of negligence in such cases being always for the jury. 154 The only differ- ence in the authorities is that by some courts it is con- sidered that all the conditions and circumstances in the particular case, such as the dangers, the travel, etc., should be submitted to the jury, for it to decide whether ordinary prudence demands that a gate or flagman be maintained. 155 While other courts hold, as matter of law, that in exceptionally dangerous crossings flagmen should be maintained. 15 ® This rule is only applicable to crossings in populous towns and cities, where the travel is great, especially in the night-time, when many trains are passing; it must be shown that the crossing is more than ordinarily hazardous, as in a thickly populated portion of a town 152 Pakalinsky v. New York Cent. Ry. Co., 82 N. Y. 424. 153 Gorton v. Erie Ry. Co., 45 N. Y. 664. 164 Eaton v. Fitchburg, 129 Mass. 364; Beiseigel v. New York Cent. Ry. Co., 40 N. Y. 9; Bailey v. New Haven etc. Ry. Co., 107 Mass. 496; Philadelphia Ry. Co. v. Killips, 88 Pa. St. 405; Railway Co. v. Richardson, 19 Ohio C. C. 385. 155 Central etc. Ry. Co. v. Kuhn, 86 Ky. 578, 9 Am. St. Rep. 309, 6 S. W. 441; Grand Trunk Ry. Co. v. Ives, 144 U. S. 419, 12 Sup. Ct. Rep. 679. 156 Cleveland Ry. Co. v. Schneider, 45 Ohio St. 678, 17 N. E. 321; Louisville etc. R. R. Co. v. Goetz, 79 Ky. 442, 42 Am. Rep. 227; Bentley v. Georgia Pac. Ry. Co., 86 Ala. 484, 6 South. 37; Western etc. R. R. Co. v. Young, 81 Ga. 397, 12 Am. St. Rep. 320, 7 S. E. 912. Torts, Vol. 1-39 § 298 TRAVELING IN ROADS AND STREETS. CIO or city; or that the view is obstructed, or that the crossing is a much traveled one, and the noise of ap- proaching trains is rendered indistinct, and the ordi- nary signals difficult to be heard, by reason of bustle and confusion incident to railway or other business. 157 Statutes and ordinances have been enacted requiring railways to construct and maintain gates, failure to do which being negligence per se, or prima facie evi- dence of negligence. 158 When gates are required, or have been established at crossings, liability of the railway will then depend upon the care with Which they are managed. If a gate is open, but negligently so, it may be regarded as an invitation to cross, and notice that there is no train approaching. But even then one passing over the crossing is not excused for not looking before crossing. 159 § 298. Same Continued— Flying-switches on Public Highway. — It is considered "too plain to admit of a shadow of doubt that making a flying-switch on a public highway, which is in constant use, and without the car being attended by and under the control of a brakeman, is evidence of gross negligence," or per se negligence. 160 But it cannot be contended that con- duct of the servants so reprehensible as this will 157 Eaton v. Fitchburg etc. R. R. Co., 129 Mass. 364; Kansas Pac. Ry. Co. v. Richardson, 25 Kan. 391; Grand Trunk Ry. Co. v. Ives, 144 U. S. 419, 12 Sup. Ct. Rep. 679; St. Louis etc. R. R. Co. v. Dunn, 78 111. 197; Bolinger v. St. Paul etc. Ry., 36 Minn. 418, 1 Am. St. Rep. 680, 31 N. W. 856; Pittsburgh etc. Ry. Co. v. Yundt, 78 Ind. 373, 41 Am. Rep. 580; Hart v. Chicago etc. Ry. Co., 56 Iowa, 166, 41 Am. Rep. 93, 7 N. W. 9, 9 N. W. 116; English v. Southern Pacific Co., 13 Utah, 407, 45 Pac. 47, 57 Am. St. Rep. 772, and note; 2 Thompson on Negligence, sec. 1527. 158 2 Thompson on Negligence, sec. 1528. 159 2 Thompson on Negligence, sec. 1528. 160 O'Connor v. Missouri Pac. Ry. Co-, 94 Mo. 150, 4 Am. St. Rep. 364, 7 S. W. 106; Brown v. New York Cent. R. R., 32 N. Y. 597, 88 Am. Dec. 353. 611 INJURY TO RIGHT OF PERSONAL SECURITY. § 298 excuse a traveler from looking both ways before cross- ing the tracks, and he cannot recover if he has failed so to do. 161 But the act of making a flying-switch is of such a nature as to disarm one in his vigilance. A person approaching a crossing, and seeing an engine with a large number of cars attached passing rapidly by, would naturally suppose that the danger of col- lision had ceased; his eye would follow the receding train, the noise of which would be apt to drown that made by approaching cars; but if he found himself suddenly confronted by a car rushing by, of its own momentum, his attention would be likely to be arrest- ed by and attracted to that, without thinking that more were to follow unattended. 162 Contributory negligence is just as much of a defense in this class of cases as in others, but by reason of the nature of the act of making a running switch, the ordinary pre- cautions are hardly available, and the traveler is not prepared for such unexpected occurrences, and, of course, is not expected to anticipate such culpable negligence. 163 It is held that even stationing a brake- man on the end of the car will not relieve the company from liability. 164. If the circumstances and condi- tions are such as to disarm the vigilance of the person crossing, it would tend to excuse what otherwise might constitute contributory negligence. The cases are largely individual ones, depending much upon the particular conditions. But the general proposition is frequently stated that it is negligence per se for a railroad company to make a flying-switch across the streets of a town, along which people are constantly 161 Ormsbee v. Boston etc. R. Co., 14 R. I. 102, 51 Am. Rep. 354. 162 Brown v. New York Cent. R. R. Co., 32 N. Y. 597, 88 Am. Dec. 353. 103 O'Connor v. Missouri Pac. Ry. Co., 94 Mo. 150, 4 Am. St. Rep. 364, 7 S. W. 106. 164 2 Thompson on Negligence, sees. 1695, 1696. § 299 TRAVELING IN ROADS AND STREETS. 612 accustomed to travel, 165 although the question should ordinarily be submitted to the jury. 166 § 299. Same Continued— The Cases.— Where a per- son is driving alone in a carriage along the highway toward a railroad crossing, and a long freight train is passing at the same time at a good rate of speed, and upon seeing the locomotive and several cars pass on ahead over the crossing leaving the same clear, he drives along to pass over the crossing, upon which - the remaining cars which are detached from the engine and cars come along upon the crossing propelled by their own momentum, while making a running switch, which causes the horse attached to the vehicle to suddenly swerve, throwing the per- son out to his injury, this is negligence on the part of the railway company, though there be a brakeman on the rear end of the first section who makes signs of the dangers of the crossing, it not appearing that the traveler understood the same, or even saw them, the company is liable, the traveler not being guilty of con- tributory negligence. 167 And where a person is driv- ing along a highway with care, and upon approaching a railway crossing sees a train pass, there being no flagman and no warning of the approach of another car, and upon passing over the crossing is struck by a car detached from the train just passed which has been separated from such train for the purpose of making a running switch, the plaintiff being able to see the track for a considerable number of feet in the direction from which the car came, supposing, how- 165 Fulmer v. Illinois Cent. R. R. Co., 68 Miss. 355, 8 South. 517; Brown v. New York Cent. R. R. Co., 32 N. Y. 597, 88 Am. Dec. 353; Chicago etc. R. R. Co. v. Garvey, 58 111. 83; Louisville etc. R. R. Co. v. Coleman, 86 Ky. 556, 6 S. W. 438, 8 S. W. 875. 166 Ohio etc. Ry. v. McDaneld, 5 Ind. App. 108, 31 N. E. 836. 167 York v. Maine Cent. Ry. Co., 84 Me. 117, 24 Atl. 790. 613 INJURY TO EIGHT OF PERSONAL SECURITY. § 299 ever, that no car or train would so soon follow an- other, the question of whether such plaintiff was in the exercise of due care should be submitted to the jury. 168 In another case in Wisconsin, a farmer on his way home from a small village, upon approaching the crossing, saw a locomotive and a freight train nearing the crossing, for which the farmer stopped to let it pass, after which he drove on, whereupon a single de- tached freight-car following the train about two hun- dred feet behind, running by the impetus given it by the speed of the train and by its own momentum, comes upon the crossing without warning or signal, and unseen by the plaintiff, striking him, the company was held liable and the plaintiff not guilty of contrib- utory negligence, even though there was a brakeman on the front end of the car who hallooed to plaintiff, and a brakeman at a switch near by did the same thing, neither of which plaintiff could hear. The hu- man voice is weak and of little use as compared and in competition with the noise of the cars. 169 168 French v. Taunton Branch R. Co., 116 Mass. 537. 169 Ward v. Chicago etc. R. Co., 85 Wis. 601, 55 N. W. 771. 300 INJURY TO PERSONAL SECURITY. 614 CHAPTER XXII. INJURY TO PERSONAL SECURITY-WHILE TRAVEL- ING IN ROADS AND STREETS BY EXCAVATION, OBSTRUCTION OR OBSTACLE. § 300. Negligence and nuisance distinguished— With reference to wrongs of excavation, obstruction, etc. § 301. Highways and streets— Their purposes— Injury to use of — Regulation of use. § 302. Same — Control over highways and streets— Liability off county or municipality. § 303. Liability of municipalities further specially considered. § 304. Subject further considered— Notice of defects. § 305. Liability of municipality when it makes independent con- tract to do some work in streets. § 306. Excavations in streets. § 307. Excavations — Nature of the legal duty and wrong. § 308. Same continued— Excavations in and other uses of streets without authority. § 309. Delays from crowded condition of streets. § 310. Incidental uses of streets— Temporary obstructions in con- struction of buildings. § 311. Authority for excavations, when given. § 312. Excavations or obstructions made by individuals for pri- vate purposes, under a license. § 313. Liability of municipality for ice on the sidewalk. § 300. Negligence and Nuisance Distinguished— With Reference to Wrongs of Excavation, Obstruction, etc.— There are some injuries caused by neglect of duty in which the line of demarcation between the wrong of negligence and nuisance is shadowy and obscure, and the courts are sometimes troubled in distinguishing the same. Each wrong arises from the failure to ob- serve care under the particular circumstances, the distinction being mainly that nuisance arises from 615 TRAVELING IN ROADS AND STREETS. § 300 continued neglect, or from a series of acts of neglect or omission to act, with respect to the care and condi- tion of property. The maintenance of any nuisance implies negligence, or worse. Annoyances with re- spect to highways, streets, and bridges may be either positive, by actual obstruction, or negative, by want of reparation. Any failure to keep a safe highway implies negligence, but it is only necessary to state the facts showing the injury from which the negli- gence is inferred, it not being essential to the state- ment of the wrong that the word "neglect" or "negli- gence" should be used. Negligence, generally speak- ing, is the omission to use due care, which may be a positive or negative act, while nuisance is the condi- tion arising from such failure which endangers the safety of person or property. An apt illustration and a very instructive case is found in Village of Carding- ton v. Fredericks, 46 Ohio St. 442, where it was held "that an action against an incorporated village found- ed upon a petition alleging in substance that a street much used by the citizens and the public was so un- skillfully and negligently constructed and left by the defendant as to be in an unsafe and dangerous con- dition, and allowed to become out of repair and ob- structed by the rubbish and refuse of the village, so that it was highly dangerous," etc., states a case the gist of which is nuisance, and not negligence. At common law, any obstruction which unnecessarily incommodes or impedes the lawful use of a highway by the public is a nuisance. 1 A man may lawfully use a public highway in the transaction of his legiti- mate business either for travel or for transportation; but it is common law and common sense that he must l 4 Blackstone's Commentaries, 167; Commonwealth v. Milliman, 13 Serg. & R. 404; Commonwealth v. Allen, 148 Pa. St. 358, 33 Am. St. Rep. 830, 23 Atl. 1115. § 301 INJURY TO PERSONAL SECURITY. 616 use it in a reasonable manner, and not interfere with its reasonable use by other citizens; and whether a particular use is an unreasonable use and a nuisance is a question of fact to be submitted to a jury. 2 The wrongs treated in this chapter will be either of nui- sance or negligence, generally the former. § 301. Highways and Streets— Their Purposes— Injury to Use Of— Regulation of Use. — Highways and streets are necessities in every civilized community. They are created for the public good for the purposes of traveling and transporting goods. The highways are established by the state which has full power to regu- late their use, but it may delegate this power of con- trol over streets to municipalities. All persons have the right to use public highways in a lawful manner for lawful purposes, and a wrong results if such use is interfered with in some manner. This may occur in various ways, as by "negligence of other travelers," treated elsewhere, 3 or by excavations, obstructions or obstacles, the latter of which is the subject of this chapter. Being established for the public good, the highways are subject to the control of the state legis- lature so far as concerns the manner of their use. 4 This power may of necessity be delegated to munici- pal corporations. 5 While the primary and funda- mental object of all public highways is to furnish a 2 Id. ; Allegheny v. Zimmerman, 95 Pa. St. 287, 40 Am. Rep. 649. S Ante, c. 21. 4 Hoey v. Gilroy, 129 N. Y. 133, 29 N. E. 85; Perry v. New Orleans R. R. Co., 55 Ala. 413, 28 Am. Rep. 740; Cushing v. Boston, 128 Mass. 330, 35 Am. Rep. 383; Dubach v. Hannibal etc. R. R. Co., 89 Mo. 483, 1 S. W. 86; Reading v. Commonwealth, 11 Pa. St. 196, 51 Am. Dec. 534; West v. Brown, 114 Ala. 118, 21 South. 452. 5 Hoey v. Gilroy, 129 N. Y. 133, 29 N. E. 85; West v. Brown, 114 Ala. 118, 21 Sonth. 452; Merchants' etc. Wire Co. v. Chicago etc. Ry. Co., 70 Iowa, 105, 28 N. W. 494; People t. Squire, 107 N. Y. 593, 1 Am. St. Rep. 893, 14 N. E. 820. 617 TRAVELING IN ROADS AND STREETS. § 302 passageway for travelers on vehicle and on foot, and though they were originally designed for the use of travelers alone, yet in the interest of the general pros- perity and comfort of the public, they have been put, especially in large cities, to numerous other uses, though such uses have always been held to be subor- dinate to the original design and use. They have been appropriated for the reception of sewers, water- pipes, gas-pipes, pipes for heating and manufacturing purposes, underground railroads, trenches for wires for telegraph, telephone and other purposes, which all require in their construction the disruption of their pavements, excavations, and obstruction, and the temporary interruption, at least, of the rights of trav- elers in the public highways. Excavations in connec- tion with buildings are of frequent occurrence. Ques- tions of liability arising from these matters depend of course upon who owes the duty of supervisory con- trol over the highways and streets, and by whom the excavation is made or obstruction maintained. § 302. Same— Control Over Highways and Streets- Liability of County or Municipality. — As stated previous- ly, 6 the state and municipality have the power of reg- ulation of highways and streets respectively. Hav- ing the power to regulate, the duty of the care and maintenance likewise rests upon the same authority. The direct representatives of the sovereignty, the county and township, owe the duty of keeping up and maintaining country highways, including bridges, but there is no liability for dereliction of duty on their part unless made so by statute. 7 It is different as to municipalities, it being their duty to keep their streets in a safe condition for public travel, which duty is 6 Ante, sec. 103. 7 Ante, see. 97. § 303 INJURY TO PERSONAL SECURITY. 618 absolute. They are bound to exercise reasonable diligence and care to accomplish that end. The streets are at all times under the care and supervision of the municipality, and there can be no legal exemp- tion by reason of having granted a privilege or fran- chise to another to make certain uses of the city, be- cause it is charged with the duty at all times and un- der all circumstances of keeping the streets and high- ways under its control free from nuisance. 8 The ap- plication of the same rule would render a county lia- ble under similar circumstances in those states where there is a statute making the county liable. 9 § 303. Liability of Municipalities Further Specially Considered. — In speaking of streets, it is understood that sidewalks are included, as that is the legal effect of the word "street." 10 Streets are subject to such improvement and alterations as the legislative au- thority may prescribe, in which a due regard is to be had to individual as well as public interests. Some- times an equivalent must be rendered for the sacrifice of private property. Where property is appropriated, the fee remains in the abutting owner, and the public acquire merely an easement therein. No matter whether appropriated or dedicated absolutely the in- terest of the public to the free and unrestricted pas- sage is the same. A public street may be applied to all purposes which are not subversive of its proper use, nor inconsistent with the uses contemplated in 8 City of Zanesville v. Fannan, 53 Ohio St. 605, 53 Am. St. Rep. 664, 42 N. E. 703; Dillon on Municipal Corporations, sec. 1037; Sides v. Portsmouth, 59 N. H. 24; Scranton v. Catterson, 94 Pa. St 202; Turner v. Newburgh, 109 N. Y. 301, 4 Am. St. Rep. 453, 16 N. E. 344. 9 See ante, sec. 97; Eyler v. Commissioners, 49 Md. 257, 33 Am. Rep. 249. 10 Bonnet v. San Francisco, 65 Cal. 230, 3 Pac. 815; Clifford V. Dam, 81 N. Y. 52; Jones on Municipal Negligence, sec. 70. 619 TRAVELING IN ROADS AND STREETS. § 303 its dedication, grant or condemnation. 11 The ques- tion as to whether there is a common-law liability on the part of cities and towns for injuries occurring in the streets from want of repair, obstructions or ex- cavations, or whether such liability exists only by vir- tue of statutes, is a question which has occupied seri- ous consideration of many of our courts, and judicial opinion with respect thereto varies. One view is taken that the power and duties of cities over streets is governmental in its nature, and that there is no right of action for a violation existing in private in- dividuals unless authorized by statute. 12 The other position maintained is that as the exclusive control and management of the streets is with the city, a duty arises to the public from the character of the powers granted to keep its streets in a reasonably safe con- dition for use in the ordinary modes of travel, and that the liability to respond in damages to those in- jured by a neglect to perform such duty, is for the vio- lation of a ministerial, and not a governmental, func- tion. It is claimed that the decided weight of author- ity, as well as sound reason, is in favor of this view. 13 11 Green v. City & Suburban Ry. Co., 78 Md. 294, 44 Am. St. Rep. 288, 28 Atl. 626. 12 Bartram v. Sharon, 71 Conn. 686, 71 Am. St. Rep. 225, 43 Atl. 143; Beardsley v. Hartford, 50 Conn. 529, 47 Am. Rep. 677; Bu- chanan v. Barre, 66 Vt. 129, 44 Am. St. Rep. 829, 28 Atl. 818; Arka- delphia v. Windham, 49 Ark. 139, 4 Am. St. Rep. 32, 4 S. W. 450; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Jones on Municipal Negligence, sec. 44 et seq.; Shearman and Redfield on Negligence, sec. 289. 13 Shearman and Redfield on Negligence, 5th ed., sec. 289, where position of the various states is given; District of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. Rep. 990; 2 Dillon on Munici- pal Corporations, sec. 1017; Jones on Municipal Negligence, sec. 88; Sutton v. Snohomish, 11 Wash. 24, 39 Pac. 273, 48 Am. St. Rep. 847, and note. § 304 INJURY TO PERSONAL SECURITY. 626 § 304. Subject Further Considered— Notice of Defects. The liability imposed upon the different branches of the government may arise from negligence in failing to make repairs, in making excavations and the like, or in allowing them to be made. If the obligation to make repairs in the streets and highways is imposed upon these branches of the government, together with a punishment for a failure to do so' when adequate powers and means are provided, there is no question as to the liability of any of the above classes. 14 Those branches of the government which are of a quasi cor- porate character, however, are generally held to be so only in case the statute specifically and expressly states the liability. 15 Some few states, also, make this distinction in regard to those which have full cor- porate capacity, holding them not liable when the statute, even while laying upon them the duty to re- pair, does not expressly make them liable for nonre- pair, 16 but the great majority of courts hold that the duty to repair, if created by statute, is ministerial and must be performed. 17 14 Raymond v. Lowell, 6 Cush. 524, 53 Am. Dec. 57; Browning v. Springfield, 17 111. 143, 63 Am. Dec. 345; Delger v. St. Paul, 14 Fed. 567. 15 Mower v. Leicester, 9 Mass. 247, 6 Am. Dec. 63; Bartlett v. Crozier, 17 Johns. 449, 8 Am. Dec. 428; Granger v. Pulaski County, 26 Ark. 40; Altnow v. Sibley, 30 Minn. 186, 44 Am. Rep. 191, 14 N. W. 877; Hamilton Commrs. v. Mighels, 7 Ohio St 109; Reed v. Belfast, 20 Me. 246; Chidsey v. Canton, 17 Conn. 475; Soper v. Henry Co., 26 Iowa, 268. 16 Arkadelphia v. Windham, 49 Ark. 139, 4 Am. St. Rep. 32, 4 S. W. 450; Detroit v. Blackeby, 21 Mich. 85, 4 Am. Rep. 450; Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Young v. Charleston, 20 S. C. 116, 47 Am. Rep. 827; Bartram v. Sharon, 71 Conn. 686, 71 Am. St. Rep. 225, 43 Atl. 143. 17 Delger v. St. Paul, 14 Fed. 567; Saulsbury v. Ithaca, 94 N. Y. 27, 46 Am. Rep. 122; Kellogg v. Janesville, 34 Minn. 132, 24 N. W. 359; Dosdall v. Olmsted Co., 30 Minn. 98, 44 Am. Rep. 185, 14 N. W. 458; Browning v. Springfield, 17 111. 143, 63 Am. Dec. 345; Sutton v. Snohomish, 11 Wash. 24, 48 Am. St. Rep. 847, 39 Pac. 273. 621 TRAVELING IN ROADS AND STREETS. § 304 Besides the duty there must be adequate means and powers provided. The power to levy taxes for the purpose, or to compel the work to be done, must be conferred upon the corporation, and if they are not, the corporation cannot be held. Again, if the municipal- ity does not have notice of the defect, either actual or constructive knowledge of it, there is no liability. The city is not an insurer of the safety of its streets, but only that it shall exercise reasonable care to make them safe for ordinary travel ; So, if it does not know of the defective condition of its streets, or the circumstances are such that it cannot reasonably be supposed to have such knowledge, it is not liable. 18 ■Constructive notice may be inferred from general no- toriety of the defect, 19 or from the fact that a careful examination would have revealed the defect, 20 or that the defect has existed for considerable length of time, for so long that in the exercise of due vigilance and care the city officers should have known of it. 21 But notice of the existence of a general defect, as that the center of a sidewalk had sunk down, is not notice of a particular defect which is not of the same general nature or reasonably inferred from it, such as a loose board. 22 Such notice, actual or inferential, must be 18 Cunningham v. Denver, 23 Colo. 18, 58 Am. St. Rep. 212, 45 Pac. 356; Duncan v. Philadelphia, 173 Pa. St. 550, 51 Am. St. Rep. 780, 34 Atl. 235; Lorence v. City of Ellensburg, 13 Wash. 341, 52 Am. St. Rep. 42, 43 Pac. 20; Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422; Fitzpa trick v. Darby, 184 Pa. St. 645, 39 Atl. 545. 19 Montgomery v. Wright, 72 Ala. 411. 20 Rapho etc. Twp. v. Moore, 68 Pa. St. 404, 8 Am. Rep. 202. 21 Lorence v. City of Ellensburg, 13 Wash. 341, 52 Am. St. Rep. 42, 43 Pac. 20; Kansas City v. Bradbury, 45 Kan. 381, 23 Am. St. Rep. 731, 25 Pac. 889; Pattengill v. Yonkers, 116 N. Y. 558, 15 Am. St. Rep. 442, 22 N. E. 1095; Sutton v. Snohomish, 11 Wash. 24, 48 Am. St. Rep. 847, 39 Pac. 273; Montgomery v. Wright, 72 Ala. 411, 47 Am. Rep. 422. 22 Village of Shelby v. Claggett, 46 Ohio St. 549, 22 N. E. 407. § 305 INJURY TO PERSONAL SECURITY. 622 sufficiently long before the accident to enable the city to either cure the defect or prevent the injury. 23 § 305. Liability of Municipality When It Makes Inde- pendent Contract to do Some Work in Streets.— It is fundamental that for injuries flowing from excava- tions or obstructions made by a city in its capacity as a private owner of property, such as for city buildings, it is, as we have seen, subject to the same liabilities as a private individual. 24 But the question as to whether or not a municipality can relieve itself from entire responsibility by contracting with another to do work for it, reserving no supervisory control over the same, presents an interesting field for discussion. The general doctrine that a master or principal is not responsible for negligence of servants is applicable to municipalities, 2,5 so long as it does not conflict with the duties the municipality owes to its citizens which stand upon an entirely different footing from private individuals. The doctrine can of necessity only apply when the municipality is acting in a private or pro- prietary capacity, and then only when the injury arises in some manner in no way connected with du- ties of the corporation from which it can in no wise absolve itself, and cannot cast upon an agent. For example, the duty of a city to keep its streets in a safe condition for public travel is absolute, and it is bound to exercise reasonable diligence and care to accomplish that end. Where it has employed a con- tractor to do work involving excavations of its streets, it is not absolved from its duty and responsibility. The city in such case cannot claim legal exemption 23 Denver v. Dean, 10 Colo. 375, 3 Am. St. Rep. 594, 16 Pac. 30. 24 Ante, sec. 101 ; Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485; Kimball v. Bath, 38 Me. 219, 61 Am. Dec. 243. 25 Jones on Municipal Negligence, sec. 167; 2 Dillon on Municipal Corporations, sec. 129. 623 TRAVELING IN ROADS AND STREETS. § 30G from liability by reason of its having contracted out the construction of a sewer, and because it has not accepted the work, as the streets during all that time remain as much as ever under the care and super- vision of its officials. 26 The same rule applies whether the city is engaged in its own work or whether it grants the right to oth- ers, the duty in either case being the same. 27 Where, however, the negligence of the contractor or servant arises in the performance of duties, with respect to which the city is under no obligation, it cannot be held liable. 28 § 306. Excavations in Streets. — Many excavations must be made in the streets of a city from time to time for the purpose of making improvements, either by way of construction of buildings, putting down water mains or pipes, laying street railway tracks, putting in telegraph or telephone wires. Travelers must submit to these temporary inconveniences, but have the right to expect that reasonable care shall be observed by those responsible for the work to guard against danger. Some excavations are made by the city itself, while others are made by private individ- uals under license or franchise from the city. So far as concerns the responsibility of the city, one view is adopted by many courts that the city is not exempted from liability, even though it is done by an independ- 26 Storrs v. Utica, 17 N. Y. 104, 72 Am. Dec. 437; Robbins v. Chicago, 4 Wall. 657; St. Paul v. Seitz, 3 Minn. 297, 74 Am. Dec. 753; Baltimore v. O'Donnell, 53 Md. 10, 36 Am. Rep. 395; Circle- ville v. Neuding, 41 Ohio St. 465; Pettengill v. Yonkers, 116 N. Y. 558, 15 Am. St. Rep. 442, 22 N. E. 1095; Turner v. Newburgh, 109 N. Y. 301, 4 Am. St. Rep. 453, 16 N. E. 344. 27 City of Zanesville v. Fannan, 53 Ohio St. 605, 53 Am. St. Rep. 664, 42 N. E. 703. 28 Storrs v. Utica, supra; Erie School Dist. v. Fuess, 98 Pa. St. 600, 42 Am. Rep. 627. § 307 INJURY TO PERSONAL SECURITY. 624 ent contractor, it reserving no control over the work. Other courts hold the city responsible in such case only upon the ground of notice. The wrong in making the excavation may be either negligence or nuisance. The discussion following will be as to the nature of the wrong, the liability of the city for its own excava- tions and those made by others, and individual liabil- ity of persons making excavations. § 307. Excavations— Nature of the Legal Duty and Wrong. — The public is entitled to be protected from danger from anything which has been placed upon the street, as an obstacle to travel, or from excavations. No one has a right to interfere with a highway or street without first obtaining permission from the proper authority, which is the city, and doing so with- out such permission constitutes a nuisance, and ren- ders the wrongdoer liable as an insurer. It matters not whether he is prudent or careful, as he is bound to keep the highway safe at his peril. 29 But if com- petent authority for the excavation be given, then the only liability which arises is through negligence in protecting the public from injury. There is no lia- bility, provided due and reasonable care is used to guard the public from the danger. 30 When acting under a license, the one making the excavation must use such means to guard the dangerous place, such 29 Congreve v. Morgan, 18 N. Y. 84, 72 Am. Dec. 495; Irvine v. Wood, 51 N. Y. 228, 10 Am. Rep. 603; Clifford v. Dam, 81 N. Y. 52; Pfau v. Reynolds, 53 111. 212; Dygert v. Schenck, 23 Wend. 446, 35 Am. Dec. 575; State v. Mobile, 5 Port. 279, 30 Am. Dec. 564 (where a city wrongfully authorized erection of market-house). 30 Temperance Hall Assn. v. Giles, 33 N. J. L. 260; Raymond v. Keseberg, 91 Wis. 191, 64 N. W. 861; Benjamin v. Metropolitan Street Ry. Co., 133 Mo. 274, 34 S. W. 590. 625 TRAVELING IN EOADS AND STREETS. § 307 as barricades, 31 or covering, 33 or lights, 33 especially where an ordinance prescribes these precautions. 34 The means used must be such as would be adopted by a reasonable man. But they do not have to afford an absolute protection; and if an iron grating be removed from an areaway by the wanton act of one not in the employ of the owner of the property, 35 or if lights have been removed without the fault of the/ one plac- ing them, and an injury occurs before he could have reasonably discovered the fact, 36 there is no liability. The mere erection of barricades or placing of lights is not sufficient. A reasonable amount of attention must be given to insure their efficacy, but this does not mean that a man must watch them constantly. 3T So, too, if the guards are, or reasonably ought to be, known to be defective, as where a gas-pipe railing was loose at one end and allowed one who leaned against it to fall into an areaway, 38 and where a rail- road, maintaining a bridge over its road, allows the railing to become rotten, and a traveler falls through. 39 Those bound to keep them are liable if they might have known of the insecurity of the guards. 40 And this question of notice is for the jury. 41 31 Hotel Assn. v. Walter, 23 Neb. 280, 36 N. W. 561; Sexton v. Zett, 44 N. Y. 430. 32 Benjamin v. Metropolitan St. Ry. Co., 133 Mo. 274, 34 S. W. 590; Stevenson v. Joy, 152 Mass. 45, 25 N. E. 78. 33 Raymond v. Keseberg, 91 Wis. 191, 64 N. W. 861; Wilson & Bros. v. White, 71 Ga. 506, 51 Am. Rep. 269; Sexton v. Zett, 44 N. V. 430; Potter v. Bunnell, 20 Ohio St. 150. 34 Wilson & Bros. v. White, 71 Ga. 506, 51 Am. Rep. 269. 35 Martin v. Pettit, 117 N. Y. 118, 22 N. E. 566. 36 Raymond v. Keseberg, 91 Wis. 191, 64 N. W. 861. 37 Beck v. Hood, 185 Pa. St. 32, 39 Atl. 843. 38 Hotel Assn. v. Walter, 23 Neb. 280, 36 N. W. 561. 39 Hays v. Gallagher, 72 Pa. St. 136. 40 Stevenson v. Joy, 152 Mass. 45, 25 N. E. 78; Creed v. Hartman, 29 N. Y. 591, 86 Am. Dec. 341; Raymond v. Keseberg, 91 Wis. 191, 64 N. W. 861. 41 Benjamin v. Metropolitan St. Ry. Co., 133 Mo. 274, 34 S. W. 590. Torts, Vol. I— 10 § 308 INJURY TO PERSONAL SECURITY. 626 § 308. Same Continued— Excavations in and Other Uses of Streets Without Authority.— The public is enti- tled to the free and unrestricted use of the entire length and breadth of the road, and no one has the right to abridge its use in any part without authority. It follows, therefore, that any act outside of those in- cident to travel and transportation which interferes with such use is unlawful, if not authorized. Thus, an excavation below the surface of the street, 42 or an obstacle placed upon the streets which hinder the free use of any portion of the street, 43 or anything which renders travel over it dangerous or hazard- ous, 44 is unlawful, calculated to produce injury to travelers, and is of the nature of nuisance. Thus, the use of a bridge across a sidewalk for unloading mer- chandise from time to time, is a nuisance. 45 So stor- ing street-cars on a switch in a street, 46 or using a street as a freight-yard, 47 or as a place to hold an auc- tion sale, 48 or allowing dangerous machinery to lie 42 Congreve v. Smith, 18 N. Y. 84; Creed v. Hartman, 29 N. Y. 591, 86 Am. Dec. 341; Clifford v. Dann, 81 N. Y. 52; Portland v. Richardson, 54 Me. 46, 89 Am. Dec. 720; Barry v. Terkildsen, 72 Cal. 254, 1 Am. St. Rep. 55, 13 Pac. 657; Pfau v. Reynolds, 53 111. 212. 43 Chase v. Oshkosh, 81 Wis. 313, 29 Am. St. Rep. 898, 51 N. W. 560; Commonwealth v. Wilkinson, 16 Pick. 175, 26 Am. Dec. 654;- Burlington v. Schwarzman, 52 Conn. 183, 52 Am. Rep. 571; State v. Knapp, 6 Conn. 415, 16 Am. Dec. 68; State v. Berdetta, 73 Ind. 185* 38 Am. Rep. 117; Birmingham v. Tayloe, 105 Ala. 170, 16 South. 576; Mahady v. Bushwick R. R. Co., 91 N. Y. 148, 43 Am. Rep. 661; Jackson v. Kiel, 13 Colo. 378, 16 Am. St. Rep. 207, 22 Pac. 504. 44 Osage City v. Larkin, 40 Kan. 206, 10 Am. St. Rep. 186, 19 Pac. 658; Grove v. Fort Wayne, 45 Ind. 429, 15 Am. Rep. 262. 45 Callanan v. Gilman, 107 N. Y. 360, 1 Am. St. Rep. 831, 14 N. E. 264. 46 Mahady v. Bushwick R. R. Co., 91 N. Y. 148, 43 Am. Rep. 661. 47 Jackson v. Kiel, 13 Colo. 378, 16 Am. St. Rep. 207, 22 Pac. 504; Gahagan v. Boston R. R. Co., 1 Allen, 187, 79 Am. Dec. 724. 48 Commonwealth v. Passmore, 1 Serg. & R. 217. 627 TRAVELING IN ROADS AND STREETS. § 308 exposed in a street. 49 Again, to maintain a coal-hole in the sidewalk, 50 and to make excavations for any purpose is unlawful, unless permission from compe- tent authority has been obtained. 51 A building which extends into the street, 52 or a fence, or wall across the same, 53 or trees within the limits of the road, 54 are nuisances, and render the one creating or maintaining them liable for any injury resulting therefrom. The rights of the public extend from the center of the earth up to the heavens above. So, not only may one not excavate below, or place obstacles upon, the sur- face of the highways, but it has been held that any encroachment upon the rights of the public above the road is a nuisance. 55 Thus, an inclosed passage, from one building to another, across a street, which was thirteen feet above the sidewalk, 56 and a bay window sixteen feet above, 57 and a loose cornice, 58 and an un- authorized awning, 59 have been held nuisances. 49 Osage City v. Larkin, 40 Kan. 206, 10 Am. St. Rep. 186, 19 Pac. 658. 50 Clifford v. Dam, 81 N. T. 52; Irvine v. Wood, 51 N. T. 224, 10 Am. Rep. 603; Calder v. Smalley, 66 Iowa, 219, 55 Am. Rep. 270, 23 N. W. 638; Jennings v. Van Schaick, 108 N. Y. 530, 2 Am. St. Rep. 459, 15 N. E. 424; Barry v. Terkildsen, 72 Cal. 254, 1 Am. St. Rep. 55, 13 Pac. 657. 61 Ante, sec. 307. 52 Commonwealth v. Wilkinson, 16 Pick. 175, 26 Am. Dec. 654. 53 State v. Knapp, 6 Conn. 415, 16 Am. Dec. 68; Burlington v. Schwarzman, 52 Conn. 181, 52 Am. Rep. 571. 54 Chase v. Oshkosh, 81 Wis. 313, 29 Am. St. Rep. 898, 51 N. W. 560. 55 Bybee v. State, 94 Ind. 443, 48 Am. Rep. 175; Reimer's Appeal, 100 Pa. St. 182, 45 Am. Rep. 373; Grove v. Fort Wayne, 45 Ind. 429, 15 Am. Rep. 262; City Council v. Burum, 93 Ga. 68, 19 S. E. 820. 66 Bybee v. State, 94 Ind. 443, 48 Am. Rep. 175. 57 Reimer's Appeal, 100 Pa. St. 182, 45 Am. Rep. 373. 58 Grove v. Fort Wayne, 48 Ind. ,429, 15 Am. Rep. 262. 69 City Council v. Burum, 93 Ga. 68, 19 S. E. 820. §§ 309, 310 INJURY TO PERSONAL SECURITY. 628 § 309. Delays from Crowded Condition of Streets.— Of course such restrictions, interferences, and obsta- cles to free passage over highways and streets which are incident to their use in their proper manner are not unlawful. Thus, the delays caused by the crowd- ed condition of city streets, or by meeting trains and persons at the intersections are remediless. So, too, it is not unlawful or a nuisance to stop one's carriage at a store or dwelling-house to enter the same, even though this obstructs a portion of the street. Nor is it a nuisance if one's wagon accidentally breaks down. On the other hand, these same acts, if continued to an unwarrantable extent, may become public nui- sances. Thus, it has been held that the continual stopping of wagons in front of a store so as to ob- struct the way for a considerable portion of the time was a nuisance, 60 and if the wagon and its contents are allowed to remain in the street longer than is rea- sonable, it also becomes a public nuisance. § 310. Incidental Uses of Streets— Temporary Ob- structions in Construction of Buildings. — It has been said by many courts and text-writers that an exception to this strict rule arises from the necessities of busi- ness and city life. The contention is that the streets, while mainly for public travel and transportation, are primarily for the convenience of the public. So that, when convenience demands that the roads be used for other purposes than the main ones, these must give way. Hence, it is argued that when, through lack of space upon one's lot, where he is erecting a building, to place his building material he places them in the street, the public need for buildings and its con- venience renders such use of the highway lawful. 61 60 People v. Cunningham, 1 Denio, 524, 43 Am. Dec. 709. 61 Clark v. Fry, 8 Ohio St. 358, 72 Am. Dec. 590; Frazier v. But- ler Borough, 172 Pa. St. 407, 51 Am. St. Rep. 739, 33 All. 691 (deposit of earth). 629 TRAVELING IN ROADS AND STREETS. § 310 Again, it is reasoned that when a merchant has not the facilities in the rear of his store to load and un- load his merchandise, or cannot immediately take care of it and store it, he may use the public streets as a temporary depository. This rule has been evolved from custom and some obiter dicta in a few early cases. The text-books and nearly all the cases cite Commonwealth v. Passmore, 1 Serg. & R. 217, and People v. Cunningham, 1 Denio, 524, 43 Am. Dec. 709, as being the leading cases upon this subject in this country. These cases, and many others also, refer to Rex v. Jones, 3 Camp. 231, Rex v. Ward, 4 Ad. & E. 405, and sometimes to Rex v. Russell, 6 East, 427. In each of these cases, however, the defendant was held guilty of a public nuisance. Commonwealth v. Passmore, 1 Serg. & R. 217, held an auctioneer liable for carrying on a sale in the highway, and People v. Cunningham, 1 Denio, 524, 43 Am. Dec. 709, held it a nuisance for a number of drivers to congregate around a brewery awaiting their turn to receive refuse, and quarreling for their turn. In Rex v. Jones, 3 Camp. 231, a timber merchant turned a part of the highway into a lumber yard, and Rex v. Ward, 4 Ad. & E. 405, held an embankment in a waterway to be a nuisance. In Rex v. Russell, 6 East, 427, a wagoner was indicted and held for a nuisance in loading and unloading his wagons on the sidewalk in front of his warehouse. These cases, which are the leading ones on both sides of the ocean, and are the primary legal authori- ties, are not in harmony in their actual decisions with the later ones citing them as authority, although in the opinions of the judges may be found statements sustaining this view. Indeed, in Rex v. Russell, 6 East, 427, the court say that it "could not be parties to any compromise for his [the wagoner] using the § 310 INJURY TO PERSONAL SECURITY. 630 street as his own for any part of his business. That this is a species of nuisance to be found in many other places and is fit to be suppressed." Some of the cases cited to support the view that highways may be used to store materials when neces- sity demands are cases in which permission to do so has been given by municipal authority. 62 These, it is believed, do not sustain the contention, for in them municipal permission, and not public necessity, af- fords the authority and legalizes the act. Many others besides the leading ones discussed above are directly contrary to the view in the actual decisions, even though the courts have volunteered to say that such a misuse is allowable when such a ne- cessity arises. 63 Those cases which are directly in point cite the leading cases, already discussed, as au- thority or else state the rule in such terms and man- ner as shows that these cases are the real authorities. It is submitted that the authorities do not support the view contended for, and that the rule that any other use of the streets and highways than for travel- ing and transportation and the purposes incident thereto constitute a nuisance, unless it is authorized 62 Bradbee v. London, 5 Scott N. O. 79; Merritt v. Fitzgibbons, 102 N. Y. 362, 7 N. E. 179; St. John v. Mayor, 3 Bosw. 483; Grant v. Stillwater, 35 Minn. 242, 28 N. W. 660; Senhenn v. Evansville, 140 Ind. 675, 40 N. E. 69; Smith v. McDowell, 148 111. 51, 35 N. E. 141; Wood v. Mears, 12 Ind. 515, 74 Am. Dec. 222; Stephens v. Macon, 83 Mo. 346. 63 Jackson v. Kiel, 13 Colo. 378, 16 Am. St. Rep. 207, 22 Pac. 504; Callanan v. Gilman, 107 N. Y. 360, 1 Am. St. Rep. 831, 14 N. E. 264; Davis v. Mayor, 14 N. Y. 506, 67 Am. Dec. 186; Mohady v. Railroad Co., 91 N. Y. 148, 43 Am. Rep. 661; Cohen v. Mayor, 113 N. Y. 532, 10 Am. St. Rep. 506, 21 N. E. 700; Birmingham v. Tayloe, 105 Ala. 170, 16 South. 576; Senhenn v. Evansville, 140 Ind. 675, 40 N. E. 69; Rex v. CarlUe, 6 Car. & P. 636; Rex v. Cross, 3 Camp. 276. 631 TRAVELING IN ROADS AND STREETS. §§ 311, 312 by state or municipal authority, applies to this case as to all others, and that unless the storage of build- ing materials in the street, or depositing of merchan- dise therein is authorized, it is a nuisance. To the proposition that custom has allowed such use, it is argued that custom cannot legalize a public nuisance, and that in the vast majority of cases of such use of the highways permission to do so has first been grant- ed by competent authority. The temporary obstruc- tion of the public streets for purposes of improve- ment, if a reasonable necessity exists therefor, is not unlawful, and the municipal authorities are not an- swerable in damages for permitting it. 64 § 311. Authority for Excavations— When Given- While the legislature and, under some circumstances, municipalities can give authority to individuals to make excavations, place obstructions on or above the highway, and in such case the mere fact of its en- croachment on the road will not constitute it a nui- sance, this does not relieve the one who obtains this privilege from the duty to exercise due care to pre- vent injury from coming to any of the public. And the fact that the city may authorize these acts is no excuse for its failure to use proper vigilance in keep- ing its streets reasonably safe and seeing that the ob- structions and excavations are duly guarded to pre- vent injury from coming in contact with or falling in them. This branch of the subject is under the head of Negligence, and is governed by these principles. § 312. Excavations or Obstructions Made by Individ- uals for Private Purposes Under a License — Private per- sons or corporations have frequent occasion in the prosecution of individual enterprises and improve- 64 Frazier v. Butler Borough, 172 Pa. St. 407, 51 Am. St. Rep. 739, 33 Atl. 691; Davis v. Winslow, 51 Me. 264, 81 Am. Dec. 573. § 312 INJURY TO PERSONAL SECURITY. 632 ments to make excavations or place temporary ob- structions in streets, but before doing so permission must be obtained from the municipal authorities. In constructing a dwelling-house or other building excavations are necessary to connect the same with water and gas. Where either public or private im- provements are being made, it is still the duty of the city to guard and protect them so as to protect trav- elers on the street from receiving injury therefrom. This duty is still incumbent on the city, though the one doing the work is required to take the necessary precautions to guard the safety of public travel. Lights or barriers must be placed about the excava- tions or obstructions. The city cannot be absolved from this duty. 65 So the city is liable for personal injury received by one in consequence of an obstruc- tion in a street consisting of a heap of dirt and rocks thrown out from a trench dug for the purpose of lay- ing water-pipes, 66 or for injuries received by one who falls into an open area, which the city allows to re- main without a sufficient barrier, 67 or for injuries suf- fered from keeping a wagon in the streets by license from the city, 68 or for injuries received by a traveler who falls into a hatchway, which a house owner has been allowed to locate and maintain in a dangerous position. 69 The foregoing are illustrations of injuries that may occur through neglect of private persons, 65 Turner v. Newburgh, 109 N. Y. 301, 4 Am. St. Rep. 453, 16 N. E. 344; Russell v. Canastota, 98 N. Y. 496; Pettengill v. City of Yonkers, 116 N. Y. 558, 15 Am. St. Rep. 442, 22 N. E. 1095. 66 Pettengill v. City of Yonkers, 116 N. Y. 558, 15 Am. St. Rep. 442, 22 N. E. 1095. 67 Clark v. Richmond, 83 Va. 355, 5 Am. St. Rep. 281, 5 S. E. 369. 68 Cohen v. New York, 113 N. Y. 532, 10 Am. St. Rep. 506, 21 N. E. 700. 69 McClure v. City cf Sparta, 84 Wis. 269, 36 Am. St. Rep. 924, 54 N. W. 337. 633 TRAVELING IN ROADS AND STREETS. § 312 but for which the city may be held, which liability is grounded upon the same reasons for its responsibility as when it engages in similar work on its own account, which has been previously shown. 70 Mr. Justice Earl of the supreme court of New York has well stated the general doctrine as follows: "The primary purpose of streets is use by the public for travel and transpor- tation, and the general rule is, that any obstruction of a street or encroachment thereon which interferes with such use is a public nuisance. But there are ex- ceptions to the general rule, born of necessity and justified by public convenience. An abutting owner engaged in building may temporarily encroach upon the street by the deposit of building materials. A tradesman may convey goods in the street to or from his adjoining store. A coach or omnibus may stop in the street to take up or set down passengers; and the use of the street for public travel may be tem- porarily interfered with in a variety of other ways without the creation of what in the law is deemed to be a nuisance. But all such interruptions and obstructions of streets must be justified by necessity. It is not sufficient, however, that the obstructions are necessary with reference to the business of him who erects and maintains them. They must also be reasonable with reference to the rights of the public who have interests in the streets which may not be sacrificed or disregarded. Whether an obstruction in the street is necessary and reasonable must gen- erally be a question of fact to be determined upon the evidence relating thereto." 71 The liability of municipalities has been discussed at some length at other places, 72 and it need not be further pursued 70 Ante, sec. 305. 71 Callanan v. Gilman, 107 N. X. 360, 14 N. E. 264, 1 Am. St Rep. 831, and note, pp. 840-844. 72 Ante, sees. 98-100. § 313 INJURY TO PERSONAL SECURITY. 634 here. So is the wrong of nuisance considered else* where. 73 § 313. Liability of Municipality for Ice on the Side- walk. — It is perhaps an undisputed general proposi- tion frequently asserted by courts that mere slip- periness arising from a smooth surface of snow and ice on a sidewalk does not render the city liable to one sustaining personal injury therefrom. 74 This statement is usually based upon the assumption that the presence of ice is caused by natural causes, such as drippings from an adjacent building or by the op- eration of the laws of gravitation and temperature. 75 The municipality may become liable, however, when the accumulation of ice on a street is because of some neglect of duty on its part, which is the cause thereof, such as neglect to construct and maintain suitable drains or gutters to carry surface water away. 76 And is there a liability on the part of the city where ice or snow is suffered to remain upon a sidewalk in such an uneven and rounded form that a person cannot walk over it, using due care? 77 The person complaining must be free from fault; if he knows of the dangerous condition it is imprudence on his part to venture on it. 78 73 See c. 41. T4 Cook v. Milwaukee, 24 Wis. 270, 1 Am. Rep. 183; other cases cited throughout this section. 75 Hausmann v. Madison, 85 Wis. 187, 39 Am. St. Rep. 834, 55 N. W. 167; Taylor v. Yonkers, 105 N. Y. 202, 59 Am. Rep. 492; Stanton v. Springfield, 12 Allen, 566; Chase v. Cleveland, 44 Ohio St. 504, 58 Am. Rep. 843; Mauchchunk v. Kline, 100 Pa. St. 119, 45 Am. Rep. 364. 76 Decker v. Scranton City, 151 Pa. St. 241, 31 Am. St. Rep. 757, 25 Atl. 36; Cook v. Milwaukee, 24 Wis. 270, 1 Am. Rep. 183. 77 Uuther v. Worcester, 97 Mass. 268; Providence v. Clapp, 17 How. 164; Broburg v. Des Moines, 63 Iowa, 523, 50 Am. Rep. 756, 19 N. W. 340; Keane v. Waterford, 130 N. Y. 188, 29 N. B. 130; Cloughessey v. Waterbury, 51 Conn. 405, 50 Am. Rep. 38. 78 Sehaefler v. Sandusky, 33 Ohio St. 246, 31 Am. Rep. 533; Haus- mann v. Madison, 85 Wis. 187, 39 Am. St. Rep. 834, 55 N. W. 167. 635 INJURY TO RIGHT OF PERSONAL SECURITY. § 314 CHAPTER XXIII. INJUEY TO PEBSON BY UNSAFE CONDITION OF LAND AND STEUCTUEES AND DANGEEOUS MACHINERY. § 314. Dangerous premises, and dangerous things erected or ex- isting thereon— Classes of liability. § 315. Nature of wrong and injury considered in this chapter. § 316. General duty of owner of premises as to their safety. § 317. Duty to those coming upon premises by invitation. § 318. Same continued — Extent of the rule of coming upon premises by invitation. § 319. Same continued— Duty to guest. § 320. By invitation— Adjudged cases. § 321. Duty to licensee. § 322. Licensees— Adjudged cases. § 323. Trespassers— Duty to. § 324. Dangerous premises, machinery, etc., attractive to children — The rule of law. § 325. Same continued— The age of the children — Contributory negli- gence. § 326. Dangerous premises, machinery, and other things attractive to children — Continued— The rule applied to what things. § 327. Same continued — Other dangerous things and places. § 328. Other cases of nonliability. § 329. Ordinance requiring excavations! to be filled or fenced— Effect upon liability. § 330. Injury from falling walls. § 331. Liability of city for injury to children. § 332. Dangerous machinery operated in the usual course of busi- ness. § 314. Dangerous Premises and Dangerous Things Erected or Existing Thereon— Classes of Liability — There are three classes of liability to be considered in connection with the duty of an owner or occupant of premises in respect to dangerous places, or dan- § 315 BY UNSAFE CONDITION OF LAND, ETC. 636 gerous things or machinery existing thereon, viz., those who come there by invitation of the owner, ex- press or implied, those who come there by virtue of a license express or implied, and those who come there as mere trespassers, and lastly children of tender or immature age who may be attracted or allured by reason of their childish instincts to go in and about premises where there may be things of dangerous character. The owner owes a duty to each one of this class of persons which will appear in the remainder of this chapter. § 315. Nature of Wrong and Injury Considered in This Chapter. — In this chapter is considered the right of an owner or occupant of land to its use in so far as it may affect third persons. This involves the con- dition in which the land may be placed by the acts of the owner or occupant in its use and enjoyment, what he may place or construct upon it. While an owner is entitled to the uninterrupted use and en- joyment of his land, and may put it to such use as he may desire, still he must act in obedience to the ancient maxim, "Sic utere ut tuo non laedas." The only limitations upon his right to use it as he pleases are by reason of certain relations into which he is brought in respect to its use. To those persons with whom he is thus brought in contact he owes cer- tain duties regarding the condition in which his prem- ises shall be kept, a violation of which, leading to injury, gives rise to a right of action. The wrong or tort involved may be either negligence, and when it is continuous neglect, or the premises are put in a dangerous condition, it will constitute nuisance.. The cases have not been particular in pointing out the nature of the wrong, whether of negligence or nuisance, and this we must do for ourselves. The C37 INJURY TO RIGHT OF PERSONAL SECURITY. § 316 only injury caused by these wrongs treated in this chapter are those affecting the person, not property, though the substantive principle of liability is the same in each case. § 316. General Duty of Owner of Premises as to Their Safety. — Here will be stated the measure of care required of owners and occupants of land and structures to those whom the duty is owing. First, it will be necessary to have in mind the persons to whom the duty of keeping the premises in safe con- dition is due, which is only to those who come thereon by invitation, express or implied, on any business to be transacted or permitted by the owner. And to trespassers and licensees he owes the duty not to in- tentionally or willfully and wantonly injure them. The measure and extent of the duty of an owner of premises to one injured thereon depends altogether upon the relation which the parties sustain to each other at the time. The owner or occupant of premises, as to those per- sons whom he owes a duty in respect to their condi- tion and safety, is not to be considered in any sense an insurer against accidents from their condition, but is bound only to the observance of such ordinary care as will enable him to keep it in such condition that it will not, by any insecurity or insufficiency for any purposes to which it may be put, injure any person rightfully in, around or passing the premises. The degree of care required to keep the premises reason- ably safe is ordinary care and diligence. 1 l Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145, 12 Am. St. Rep. 244, 4 S. E. 759; Ryder v. Kinsey, 62 Minn. 85, 54 Am. St. Rep. 623, 64 N. W. 94; Nash v. Minn. Mill. Co., 24 Minn. 501, 31 Am. Rep. 349; Steppe v. Alter, 48 La. Ann. 363, 55 Am. St. Rep. 281, 19 South. 147; Baddeley v. Shea, 114 Cal. 1, 55 Am. St. Rep. 56, 45 Pac. 990 (ordinary care, such as good housekeepers ordinarily § 316 BY UNSAFE CONDITION OF LAND, ETC. 638 There are certain conditions in which premises are placed by its owner, and dangers thereon, which the owner may have the right to create and do not in and of themselves violate any right of another, but the law imposes upon such owner certain duties in respect to guarding those lawfully coming upon the lands from injury, and if he does not observe these duties, he be- comes liable. If the premises are in an unsafe condi- tion, which is known or ought to be known by the own- er, or which he has negligently suffered to exist, and he does not give notice to or warn those rightfully on his premises, he violates his duty and renders himself liable for resulting injury. This wrong or tort is a nuisance, consisting in the mere existence of a condi- tion, accompanied also with some negligence in failing to adopt certain precautionary measures. As for ex- ample where there is an open hatchway near where persons using the premises have occasion to go, which is not protected or guarded by a covering, or the dan- ger is not indicated by light at night, the wrong is nuisance, the violation of duty consisting in the fact of the existence of the danger without protection and warning. In such cases the measure of care is said to be ordinary, and that the owner is not an in- surer of their safety. 2 Again, it is said that an owner is bound to keep his premises in a reasonably safe condition for the use of persons who enter upon his invitation. 3 But there is no duty incumbent upon the owner to guard against latent defects, those which are either con- cealed in defective workmanship, or which are in- exercise to avoid danger of personal injury in their own private dwelling-houses). 2 Lowe v. Salt Lake City, 13 Utah, 91, 57 Am. St Rep. 708, 44 Pac. 1050. s Beehler v. Daniels, 18 R. I. 563, 49 Am. St. Rep. 790, 29 Atl. 6. 639 INJURY TO RIGHT OF PERSONAL SECURITY. § 317 cidental to the ordinary wear and tear of the houses. Such defects are among the casualties which no man can avoid without that extraordinary care and vig- ilance which the law does not impose. 4 Where any- thing unusual occurs, such as a fire, and premises are left in a dangerous condition, it is the duty of the owner to examine the building after the fire, to see how the occurrence has affected it, and to look after its safety. 5 § 317. Duty to Those Coming Upon Premises by In- vitation. — The well-settled rule as expressed in the language of the authorities is that an owner of lands is liable in damages to those coming thereon, using due care, at his invitation or inducement, express or implied, on any business to be transacted with or permitted by him, for an injury occasioned by the unsafe condition of the premises, which is known to him and not to them, and which he has suffered negligently to exist, and of which they have received no notice. 6 It is held that some negligence must be shown to create a liability. 7 The above is a statement of the familiar and well- understood rule of liability, which, in connection with the rule of duty required of land owners found in 4 Baddeley v. Shea, 114 Cal. 1, 55 Am. St. Rep. 56, 45 Pac. 990; Buch v. Armory Mfg. Co., 69 N. H. 257, 76 Am. St. Rep. 163, 44 Atl. 809. 5 Steppe v. Alter, 48 La. Ann. 363, 55 Am. St. Rep. 281, 19 South. 147. 6 Hart v. Washington Park Club, 157 111. 9, 48 Am. St. Rep. 298, 41 N. E. 620; Lake Shore etc. Ry. Co. v. Bodemer, 139 HI. 596, 32 Am. St. Rep. 218, 29 N. E. 692; Davis v. Central Congregational So- ciety, 129 Mass. 367, 37 Am. Rep. 368; Donaldson v. Wilson, 60 Mich. 86, 1 Am. St. Rep. 487, 26 N. W. 842; Samuelson v. Cleveland Min. Co., 49 Mich. 170, 43 Am. Rep. 456, 13 N. W. 499; Camp v. Wood, 76 N. Y. 92, 32 Am. Rep. 282; Hartwig v. Chicago etc. Ry. Co., 49 Wis. 358, 5 N. W. 865; Bennett v. Railroad Co., 102 U. S. 577. 7 McLean v. Burnham (Penn.), 8 Atl. 25. § 318 BY UNSAFE CONDITION OF LAND, ETC. 640 the previous section, 8 is sufficient for present pur- poses. § 318. Same Continued— Extent of the Rule of Com- ing Upon Premises by Invitation. — The scope and extent and exact meaning of the so-called rule of invita- tion — that is the rule requiring an owner to exercise care to see that his premises are in safe condition for those coming thereon upon his invitation — is dif- ficult of exact statement. The pivotal point is the offering of some inducement for the benefit of the owner; and to constitute an invitation such as is contemplated by law the relations and benefits must be reciprocal. The rule furthermore, as gathered from the language and effect of the decisions, would seem to be that the invitation contemplated extends only to those who come on business connected with that carried on at the place, and for the transaction of which the place is apparently intended; that there is some mutuality, some benefit accruing to both parties; and unless these elements are present, the person must be either a licensee or trespasser, the duties to whom by the owner are of a more re- mote character. 9 So a person who goes to a build- ing merely to make inquiry into a matter which con- cerns himself alone, and not to transact any business with the occupant, nor to transact any business of the kind there carried on, is a mere licensee. 10 And so with one who enters premises to obtain employment, 11 8 Ante, sec. 316. 9 Plummer v. Dill, 156 Mass. 426, 32 Am. St. Rep. 463, 31 N. E. 128; Campbell v. Portland Sugar Co., 62 Me. 552, 16 Am. Rep. 503; Parker v. Portland Pub. Co., 69 Me. 173, 31 Am. Rep. 362. io Plummer v. Dill, 156 Mass. 426, 32 Am. St. Rep. 463, 31 N. E. 128. ii Larmore v. Crown Point Iron Co., 101 N. T. 391, 54 Am. Rep. 718, 4 N. E. 752. 641 INJURY TO RIGHT OF PERSONAL SECURITY. § 319 or one who goes to a building to attend a wake. 13 Where a privilege of using premises is extended by the owner for the mere pleasure and benefit of the party exercising the privilege, it is a license. 13 It is said to be sometimes difficult to determine whether the circumstances make a case of invitation in the technical sense of that word, as used in a large num- ber of adjudged cases, or only a case of mere li- cense, 14 though the following rule is generally adopt- ed, the application of which ought to be sufficient to solve all cases: A case of invitation exists where one goes upon premises for the common interest or mu- tual advantage of both parties, but if such privilege exists for the mere pleasure and benefit of the party exercising it there is simply a case of license. 15 § 319. Same Continued— Duty to Guest.— Some writers have said that the rule of liability of an owner of property to an invited guest is not thoroughly settled. 16 We think that the rule of liability to one coming upon the premises by invitation, lim- ited as it is to cases of mutual benefit and reciprocal relations, would by analogy furnish the rule of re- sponsibility to invited guests. 1T Ordinary care be- ing required of the owner to keep his premises in safe condition for the reception of persons coming thereon by express or implied invitation to trans- act business, because of the mutuality of interest, it follows that the same measure of duty cannot ex- 12 Hart v. Cole, 156 Mass. 475, 31 N. B. 644. 13 Plummer v. Dill, 156 Mass. 426, 32 Am. St. Rep. 463, 31 N. E. 128. 14 Bennett v. Railroad Co., 102 U. S. 577. 15 Pomponlo v. New York etc. R. R. Co., 66 Conn. 528, 50 Am. St. Rep. 124, 34 Atl. 491. 16 Shearman and Redfleld on Negligence, sec. 706. 17 Ante, sec. 317. Torts, Vol. I— il § 320 BY UNSAFE CONDITION OF LAND, ETC. 642 ist in favor of a guest who is receiving the hospitality of the owner. That the rule of liability to invited per- sons is limited to some purpose connected with the business of the owner or occupant, or to cases of mutuality of interest, excluding hospitable relations, seems to be a natural corollary. The English rule that one who comes on an express invitation to enjoy hospitality as a guest must take the house as he finds it, and that his right to recover for an injury grow- ing out of dangers on the premises is no greater than that of a mere licensee, 18 seems to have received/ some indirect sanction in one state. 19 It is said that the owner should be liable for gross negligence, and that the same rule should be applied as to free pas- sengers upon railways. 20 Such guest occupies a dif- ferent relation than does a licensee, coming as he does upon the premises under different conditions, and it would seem that some care is due him other than the duty not to intentionally or wantonly cause injury to him. § 320. By Invitation— Adjudged Cases.— One who, be- ing rightfully on premises in the night-time, attempts is Southcote v. Stanley, 1 Hurl. & N. 247; Abraham v. Reynolds, 5 Hurl. & N. 247; Indermaur v. Dames, L. R. 1 Com. P. 274. 19 Plummer v. Dill, 156 Mass. 426, 32 Am. St. Rep. 463, 31 N. E. 128, where the court said as to the English decision: "The prin- ciple of the decision seems to be that a guest who is receiving the gratuitous favors of another has no such relation to him as to create a duty to make the place where hospitality is tendered safer or better than it is. It is well settled that to come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or whieh he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor's business relates, although the par- ticular thing which is the object of the visit may not be for the benefit of the occupant": Pollock on Torts, 417. 20 Shearman and Redfield on Negligence, sec. 706. 643 INJURY TO EIGHT OF PERSONAL SECURITY. § 320 to cross the back yard thereof, for the purpose of urinating, but strays from the path leading from the building to an outhouse, and is injured by falling into an unprotected hatchway, the owner knowing of the dangerous condition of the premises, is lia- ble. 31 So is a religious society liable to one invited to attend its meeting for a personal injury sustained by him from the dangerous condition of the prem- ises. 23 So is an owner liable to one who falls into an excavation about ten feet from the outer line of the street, and who has permitted the public to use a portion of his lands as a highway. 23 An owner is liable to a workman who is injured by the insuf- ficiency of a scaffold furnished him with which to work. 24 And so is an owner of a wharf liable for injuries caused by the unsafe and defective condition though in the possession of a lessee. 25 So if one falls into an unguarded area left near the sidewalk, 26 or through an unguarded trap door upon premises, 27 the owner is liable. A railway is liable to one who undertakes to cross its track at a private crossing, being induced to cross by a signal by a flagman that it is safe. 28 Persons who come upon a railroad plat- form to meet an incoming or to accompany an out- going passenger are there by authority of the com- pany, as much as a passenger, and as to all such the platform must be strong enough to bear them, no 21 Lowe v. Salt Lake City, 13 Utah, 91, 57 Am. St. Rep. 708, 44 Pac. 1050. 22 Davis v. Central Cong. Soc, 129 Mass. 367, 37 Am. Rep. 368. 23 Beck v. Carter, 68 N. Y. 283, 23 Am. Rep. 175. 24 Coughtry v. Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387. 25 Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295. 26 Crogan v. Schiele, 53 Conn. 186, 55 Am. Rep. 88, 1 Atl. 899, 5 Atl. 673. 27 Swords v. Edgar, 59 N. Y. 28, 17 Am. Rep. 295. 28 Sweeny v. Old Colony etc. R. R. Co., 10 Allen, 368, 87 Am. Dec. 644. § 320 BY UNSAFE CONDITION OF LAND, ETC. 644 matter how numerous. 29 The duties of railway com- panies to its passengers, so far as relates to the plat- form and station grounds, have been elsewhere re- ferred to. 30 A warehouseman is liable for injury to a customer who is injured by defective approach to his premises. 31 A servant of a transfer company who breaks through the platform at the bottom of the steps of a private house when delivering a trunk cannot re- cover, if the same was constructed in a substantial manner of good materials such as would ordinarily last for quite a number of years. 33 Nor can a pro- prietor of a grain elevator be held for an injury to a customer who while upon the premises puts a de- fective railing around the opening of an elevated platform to a use other than that for which it was intended, by leaning against it for support, is not re- sponsible for injury to such customer by the giving way of such railing while being so used, although he had previous knowledge of its defective condi- tion. 33 Nor is an owner responsible to one, though invited upon his premises upon business, for an in- jury received by thrusting his head through the win- dow of an elevator shaft, though the elevator was at the time concealed; 34 nor is one who, though hav- ing goods to sell, but being importuned agrees to sell some to another, is injured while walking around the premises in the dark, liable therefor. 35 29 Gillis v. Penn. R. E. Co., 59 Pa. St. 129, 98 Am. Dec. 317. 30 See sec. 340, post. 31 Nave v. Flack, 90 Ind. 205, 46 Am. Rep. 205. 32 Baddeley v. Shea, 114 Cal. 1, 55 Am. St. Rep. 56, 45 Pac. 990. 33 Kinney v. Onsted, 113 Mich. 96, 67 Am. St. Rep. 455, 71 N. W. 482. 34 Peake v. Buell, 90 Wis. 508, 48 Am. St. Rep. 946, 63 N. W. 1053. 35 Pierce v. Whitcomb, 48 Vt. 127, 21 Am. Rep. 120. 645 INJURY TO EIGHT OF PERSONAL SECURITY. § 321 § 321. Duty to Licensee. — Persons- going upon premises of another who come within the meaning of licensee go there for purposes of their own, and not for any benefit to the owner or occupant, so that the latter does not have to observe the same amount of care as he does toward those who come there by his invitation. Where the privilege of user exists for the mere pleasure and benefit of the party having and exercising the privilege it will be held to be a case of license. 36 One who goes upon the premises of another with' the mere acquiescence and suffer- ance of the owner is a licensee. 37 A person who visits a portion of a store not frequented by visitors, entirely on his own premises, without the owner's invitation or knowledge is a mere licensee. 38 Per- sons using railway property for a passageway with the tacit consent of the company are licensees. 39 It is the universal doctrine that a licensee upon prem- ises must himself assume all the risks of perils and dangers existing thereon, or incident to the existing conditions thereof, and that he cannot recover for injuries from the condition in which he finds the premises. To a mere licensee an owner owes no duty other than that of not intentionally or willfully or wantonly injuring him; he does not owe him the duty of active vigilance to see that he is not injured while upon the land. There is no privity of relation- ship between such persons and no duty. This rule is 36 Plummer v. Dill, 156 Mass. 426, 32 Am. St. Rep. 463, 31 N. E. 128. 37 Cusick v. Adams, 115 N. Y. 55, 12 Am. St. Rep. 772, 21 N. E. 673; Galveston Oil Co. v. Morton, 70 Tex. 400, 8 Am. St. Rep. 611, 7 S. W. 756. 38 Paris v. Hoberg, 134 Ind. 269, 39 Am. St. Rep. 261, 33 N. E. 1028. 39 Walsh v. Fitchburg R. R. Co., 145 N. Y. 301, 45 Am. St. Rep. 615, 39 N. E. 1068; Woolwine v. Railroad Co., 36 W. Va. 329, 32 Am. St. Rep. 859, 15 S. E. 81. § 322 BY UNSAFE CONDITION OF LAND, ETC. 646 well supported as shown by the authorities cited. 40 In New York the court uses language slightly incon- sistent with the above, viz.: Persons using railway property under an implied license are not trespassers in the sense of unlawfully being upon the premises. The company has no right to intentionally injure them, and will be liable if it. heedlessly or carelessly injures them. 41 § 322. Licensees— Adjudged Cases.— There is no liability on the part of an owner or occupant of prop- erty for injury to one entering thereon to see an employee, 42 nor to one who when merely making a visit to a store falls down an open elevator shaft on 40 Illinois: Gibson v. Leonard, 143 111. 182, 36 Am. St. Rep. 376, 32 N. E. 182. Indiana: Faris v. Hoberg, 134 Ind. 269, 39 Am. St. Kep. 261, 33 N. E. 1028. Maryland: Benson v. Baltimore Traction, 77 Md. 535, 39 Am. St Rep. 436, 26 Atl. 973. Maine: Parker v. Portland Pub. Co., 69 Me. 173, 31 Am. Rep. 262. Massachusetts: Sweeney v. Old Colony etc. R. R. Co., 10 Allen, 368, 87 Am. Dee. 644; Reardon v. Thompson, 149 Mass. 267, 21 N. E. 369; Redigan v. Boston etc. R. R. Co., 155 Mass. 44, 31 Am. St. Rep. 520, 28 N. E. 1133; Plummer v. Dill, 156 Mass. 426, 32 Am. St. Rep. 463, 31 N. E. 128. Michigan: Hargreaves v. Deacon, 25 Mich. 5. New York: Sterger v. Van Sicklan, 132 N. Y. 499, 28 Am. St. Rep. 594, 30 N. E. 987; Cusick v. Adams, 115 N. Y. 55, 12 Am. St. Rep. 772, 21 N. E. 673; Walsh v. Fitchburg R. R. Co., 145 N. Y. 301, 45 Am. St. Rep. 615, 39 N. E. 1068. Texas: Galveston Oil Co. v. Morton, 70 Tex. 400, 8 Am. St. Rep. 611, 7 S. W. 756, West Virginia: Woolwine v. Chesapeake etc. R. R. Co., 36 W. Va. 329, 32 Am. St. Rep. 859, 15 S. E. 81. 41 Walsh v. Fitchburg R. R. Co., 145 N. Y. 301, 45 Am. St. Rep. 615, 39 N. E. 1068. 42 Galveston Oil Co. v. Morton, 70 Tex. 400, 8 Am. St. Rep. 611, 7 S. W. 756. 647 INJURY TO RIGHT OF PERSONAL SECURITY. § 322 a part of the premises not frequented by visitors, 43 nor to one, though lawfully upon the premises in the first instance, but who for his own convenience, takes an unusual way and is injured by some defect in the way; 44 nor to a member of an underwriters' fire patrol who comes upon the premises to save property from fire under a license implied by law, and is injured by using a defective elevator; 45 nor to a fireman of a city who falls into an unguarded ele- vator-well while extinguishing a fire; 46 nor can a traction company be held for an injury sustained by a member of a class of pupils who visit the power- house for their own benefit and information; 47 nor is a railway company responsible for injury to one who enters its telegraph office upon a mere social visit with one employed there through the danger- ous condition of its premises; 48 nor to one crossing its platform merely to make a short cut on his jour- ney who falls into a trapdoor; 49 nor to one who goes upon premises to seek employment, who is injured by a defective machine; 50 nor to one injured by falling into a trapdoor in a portion of a factory not open to the public, where no invitation or allurement is held out. 51 43 Faris v. Hoberg, 134 Ind. 269, 39 Am. St. Rep. 261, 33 N. E. 1028. 44 Armstrong v. Medbury, 67 Mich. 250, 11 Am. St. Rep. 585, 34 N. W. 566. 45 Gibson v. Leonard, 143 111. 182, 36 Am. St. Rep. 376, 32 N. E. 182. 46 Beehler v. Daniels, 18 R. I. 563, 49 Am. St. Rep. 790, 29 Atl. 6. 47 Benson v. Baltimore Traction Co., 77 Md. 535, 39 Am. St. Rep. 436, 26 Atl. 973. 48 Woolwine v. Railway Co., 36 W. Va. 329, 32 Am. St. Rep. 859, 15 S. E. 81. 49 Redigan v. Boston etc. R. R. Co., 155 Mass. 44, 31 Am. St. Rep. 520, 28 N. E. 1133. so Larmore v. Crown Point etc. Co., 101 N. Y. 391, 54 Am. Rep. 718, 4 N. E. 752. Ri Zoebisch v. Tarbell, 10 Allen, 385, 87 Am. Dec. 660. § 323 By UNSAFE CONDITION OF LAND, ETC. 648 § 323. Trespassers, Duty to.— There is no differ- ence in the duty of an owner or occupant of property to trespassers than to licensees, it being a well-estab- lished rule of law that he is under no obligation to keep his premises in a safe condition for the benefit of trespassers, and that he owes them no duty other than to not intentionally or wantonly and will- fully inflict injury. Strangers who stray about the premises of others do so at their peril, and must look out for their safety in dangerous places or suffer the consequences. The owner is under no obligation to fence or guard any wells, ditches, stone quarries, or other pitfalls or dangerous places on his uninclosed grounds. 52 An owner of land is not" bound to provide against remote and improbable injuries to trespass- ing children. 83 § 324. Dangerous Premises, Machinery, etc.; At- tractive to Children— The Rule of Law. — The responsi- bility of persons who have upon their premises dan- gerous places, things and machinery is a subject upon which judicial opinion varies. So far as this phase 52 Railway Co. v. Ferguson, 57 Ark. 16, 38 Am. St. Rep. 217, 20 S. W. 545; Hughes v. Hannibal etc. R. R. Co., 66 Mo. 325; Clary v. Burlington etc. R. R. Co., 14 Neb. 232, 15 N. W. 220; Gilman v. Sioux City Ry. Co., 62 Iowa, 299, 17 N. W. 520; McGurness v. But- ler, 159 Mass. 233, 38 Am. St Rep. 412, 34 N. E. 259; Bedell v. •Berkey, 76 Mich. 435, 15 Am. St. Rep. 370, 43 N. W. 308. An owner is not liable to others for injuries occasioned by its unsafe condi- tion when the person receiving the injury was not at or near the place of danger by lawful right, and when the owner has neither expressly nor impliedly invited him there, nor allured him by at- tractions or inducements exhibited or held out in some way cal- culated to lead him into danger, without giving notice of the peril to be avoided: Galveston Oil Co. v. Morton, 70 Tex. 400, 8 Am. St. Rep. 611, 7 S. W. 756; Sweeny v. Old Colony etc. R. R. Co., 10 Allen, 368, 87 Am. Dec. 644; Bennett v. Railroad Co., 102 U. S. 577; Pierce v. Whitcomb, 48 Vt. 127, 21 Am. Rep. 120. 53 Brinkley Car Co. v. Cooper, 60 Ark. 545, 46 Am. St. Rep. 216. 31 S. W. 154. 049 INJURY TO RIGHT OF PERSONAL SECURITY. § 324 of liability relates or is applied to adults, it is solved by the application of the doctrines already stated in this chapter in respect to the liability of owners or occupants of land and structures to per- sons going thereon by invitation or under a license. 54 It is only injuries to children of immature age, who are injured by dangerous things, which, under cer- tain conditions, call for the application of a differ- ent rule of law than applies to those going on prem- ises by invitation or under a license, which is as follows : There is certain dangerous machinery as well as dangerous things and places which may be of such character as to attract young children, not old enough to appreciate the dangers therefrom, but which may allure them into danger, and because of the likelihood of children without sufficient judgment and discretion being injured by going about such ma- chinery or upon the dangerous premises, the law im- poses the duty upon the persons maintaining such dangerous machinery or premises, of taking such care as may seem to be reasonably necessary to pro- tect such children from the danger to which they may thus be exposed; that such children may be said to be induced by the owner's own conduct to come upon the premises; that what an express in- vitation is to an adult is to a child of tender years an attractive plaything; that as to them, such things are hidden traps. Hence, in obedience to this rule, it is considered that one who leaves dangerous machin- ery in an open place, though on his own land, or who creates and allows to exist dangerous places or things on his own premises, in an exposed condition, where he has reason to believe that young children will be attracted to play with or about the same, and be iu- 54 Ante, sees. 322, 323. § 325 BY UNSAFE CONDITION OF LAND, ETC. 650 jured, is liable therefor if he has not observed rea- sonable care to avoid such danger. 55 § 325. Same Continued— The Age of the Children- Contributory Negligence. — The foregoing rule of liabil- ity of owners and occupants of land for injuries to children from dangerous things depending as it must upon the age of the injured, particularly upon his capacity, much depends upon this question. The ordinary rule as to negligence of children must be applied, 56 which is that children of immature years are expected to exercise only such care and self-re- straint as belongs to childhood, that they are lack- ing in that discretion which is ordinarily sufficient to enable persons of more mature years to see and ap- preciate and avoid danger, and in proportion to this lack of judgment on their part, the care that must be observed toward them by others, is increased. 57 Children are required to exercise only such care and prudence as may be reasonably expected of those who possess only the intelligence and maturity of judg- ment which they possess; 58 or of such care and pru- dence as children of similar age and judgment usually 55 Railroad Co. v. Stout, 17 Wall. 657; Keefe v. Milwaukee etc. Ry. Co., 21 Minn. 207, 18 Am. Rep. 393; City of Pekin v. McMahon, 154 111. 141, 45 Am. St. Rep. 114, 39 N. E. 484; Price v. Atchison Water Co., 58 Kan. 551, 62 Am. St. Rep. 625, 50 Pac. 450 (reservoir); Cooper v. Overton, 102 Tenn. 211, 73 Am. St. Rep. 864, 52 S. W. 183; Barrett v. Southern Pacific Co., 91 Cal. 296, 25 Am. St. Rep. 186, 27 Pac. 666. 56 Ante, sec. 254. 57 Barrett v. Southern Pacific Co., 91 Cal. 296, 25 Am. St. Rep. 186, 27 Pac. 666. 58 Brinkley Car Co. v. Cooper, 60 Ark. 545, 46 Am. St. Rep. 216, 31 S. W. 154 (a child six years old); Keefe v. Milwaukee etc. R. R. Co., 21 Minn. 207, 18 Am. Rep. 393 (seven years old); Birge v. Gardiner, 19 Conn. 507, 50 Am. Dec. 261 (seven years); Evansich v. Gulf etc. R. R. Co., 57 Tex. 126, 44 Am. Rep. 5S6 (seven years). 651 INJURY TO RIGHT OF PERSONAL SECURITY. § 323 exercise, or are capable of exercising. 59 It follows, therefore, that when a child or infant who is pos- sessed of sufficient capacity, judgment, discretion and intelligence to enable him to know and appreciate the dangers incurred in connection with dangerous things, places or machinery, to the same extent as may an adult, then his conduct must be accordingly judged, and recovery be denied where he steps into danger under such circumstances. In this class of cases liability of an owner to him will be considered according to whether he is a trespasser, licensee or whether he is on premises by invitation. Between certain ages and according to the proof as to capacity in particular cases, whether a dan- gerous place or machinery is of such a character as to be attractive to children, and whether the person charged with maintaining it is responsible for an injury, must be submitted to the jury. 60 But in other cases where it clearly appears from the circum- stances that a child is of sufficient age to possess ordinary intelligence, and does appreciate the dan- gers as well as adults, but carelessly and recklessly 69 Haynes v. Raleigh Gas Co., 114 N. C. 203, 41 Am. St. Rep. 78G, 19 S. E. 344; Twist v. Winona etc. R. R. Co., 39 Minn. 164, 12 Am. St. Rep. 626, 39 N. W. 402 (aged ten years); Chicago etc. Ry. Co. v. Eininger, 114 111. 79, 29 N. E. 196; Masser v. Chicago etc. Ry. Co., 68 Iowa, 602, 27 N. W. 776; Gillespie v. McGowen, 100 Pa. St. 144, 45 Am. Rep. 365; Wendell v. New York etc. R. R. Co., 91 N. Y. 420; Moebus v. Herrmann, 108 N. Y. 349, 2 Am. St. Rep. 440, 15 N. E. 415; Lynch v. Smith, 104 Mass. 52, 6 Am. Rep. 188. 60 Brinkly Car Co. v. Cooper, 60 Ark. 545, 46 Am. St. Rep. 216, 31 S. W. 154; City of Pekin v. McMahon, 154 111. 141, 45 Am. St. Rep. 114, 39 N. E. 484; Kansas Central Ry. Co. v. Fitzsimmons, 22 Kan. 686, 31 Am. Rep. 203 (a boy twelve years old); Barrett v. Southern Pacific Co., 91 Cal. 296, 25 Am. St. Rep. 186, 27 Pac. 666 (a boy eight years old); Frost v. Eastern R. R. Co., 64 N. H. 220, 10 Am. St. Rep. 396, 9 Atl. 790. I 326 BY UNSAFE CONDITION OF LAND, ETC. 652 goes into a place of danger, he is guilty of contribu- tory negligence as matter of law. 61 § 326. Dangerous Premises, Machinery, and Other Things Attractive to Children — Continued— The Rule Ap- plied to What Things.— In this section the applicability of the rule of liability stated in the next preceding section of persons who maintain upon their premises dangerous things which are likely to injure children of tender years will be considered, particularly with reference to the liability of railway companies for maintaining dangerous machinery and appliances upon their property which are likely to attract chil- dren there to their injury. Two conflicting views prevail among the authorities upon the liability of railway companies for injuries to children who are attracted to where the railway company maintains and operates turntables. One line of decisions ap- plies the rule of law stated in the previous section, viz., that one who maintains upon his premises things of such a character as are likely to attract children of immature age must be held to know the natural instincts and tendencies of children to gather about such machinery or appliances, and use a turntable (in the language of another), as a merry-go-round, ea and is required to take whatever precautions to guard the safety of such children as may be reasonably necessary under the circumstances, and if they do not perform this duty a liability arises from any re- sulting injury. The principle upon which these de- 61 Heinmann v. Kinnare, 190 III. 356, 83 Am. St. Rep. 123, 60 N, E. 215; Twist v. Winona etc. R. R. Co., 39 Minn. 164, 12 Am. St. Rep. 626, 39 N. W. 402 (where a boy ten years old knew a rail- road turntable was dangerous, that playing thereon was dangerous, and he had been forbidden to go about it); Butz v. Cavanaugh, 137 Mo. 503, 59 Am. St. Rep. 504, 38 S. W. 1104 (an intelligent boy twevle years voluntarily went into an excavation). 62 2 Thompson on Negligence, sec. 1827. 653 INJURY TO RIGHT OF PERSONAL SECURITY. § 326 cisions are grounded is one which does not seem to be satisfactory, nor, indeed, necessary to reach the conclusion that one who does so maintain dangerous machinery attractive to children, unprotected and unguarded, must be considered to have invited chil- dren upon the premises. We think that the rule an- nounced by the great weight of authority supporting the foregoing doctrine is sound and in the interest of public justice, but that it does not require the jug- gling of well-established doctrines to arrive at the rule that railways are liable, by construing the temptation into an invitation. If this arbitrary dis- tinction had not been made by the authorities, per- haps there would not have been so much dissent from the rule, as this fiction has been the principal objec- tion made by the cases dissenting from the above view. It might just as well be said that when one constructs dangerous things upon premises in such position that he must know that they will attract children with childish instincts, that he shall take this into account in its maintenance, and that he must take the necessary precaution to guard against possible injury to children resulting therefrom. This is sufficient to establish a primary right and a corre- sponding duty, the only things necessary to establish a right of action. This class of cases calls for a special rule, and does not need the support of "the Invitation Rule" to uphold the liability. 63 In addi- tion to the reason just stated, as tending to show why the rule that liability should be imposed upon rail- ways in this class of injuries is the better one, the great weight of authority is to the same effect. The pioneer case establishing the liability was announced 63 See criticism in Delaware etc. R. R. Co. t. Reich, 61 N. J. L. 635, 68 Am. St. Rep. 727, 40 Atl. 682; article in Harvard Law Re- view, February and March, 1898; Holbrook v. Aldrich, 168 Mass. 16, 60 Am. St. Rep. 364, 46 N. E. 115. § 326 BY UNSAFE CONDITION OF LAND, ETC. 654 by the federal courts in Railroad Co. v. Stout, 17 Wall. 657. This has been followed in California, 64 Georgia, 65 Kansas, 66 Minnesota, 67 Missouri, 68 South Carolina, 69 Texas, 70 and Washington. 71 Several states Have repudiated the so-called at- tractive nuisance doctrine, it being held that railway companies are under no obligation or duty to protect or guard against injury to children without respect to age; these decisions place children of whatsoever age upon an equality with adults, and we think ut- terly ignore the natural instincts of all men for the welfare of children of such age that they cannot ap- preciate danger. Furthermore, such a rule of exemp- tion is not conducive to carefulness on the part of the servants and agents of railway companies; it would seem far better to adopt a rule that railroad 64 Barrett v. Southern Pae. Co., 91 Cal. 296, 25 Am. St. Rep. 186, 27 Pac. 666, 48 Am. & Eng. E. Cas. 532 (a child of eight years of age injured by turntable; it should be protected by inclosure or left in charge of some one); Callahan v. Eel River etc. R. Co., 92 Cal. 89, 28 Pac. 104. 65 Ferguson v. Columbus etc. R. R. Co., 77 Ga. 102. 66 Kansas Cent. Ry. Co. v. Fitzsimmons, 22 Kan. 686, 31 Am. Rep. 203, in which case the boy injured was twelve years old. The court said: "Everybody knows that by nature and by instinct boys love to ride, and love to move on other means than on their own locomotion, etc. .... No person has a right to leave dan- gerous machinery calculated to attract and entice boys to it, there to be injured, unless he first takes steps to guard against all dan- gers; .... it is a violation of that emphatic maxim, 'Sic utere tuo ut alienum non laedas.' " 67 Keefe v. Milwaukee etc. Ry. Co., 21 Minn. 207, 18 Am. Rep. 393 (child seven years of age). 68 Koons v. St. Louis etc. R. R. Co., 5 Mo. 592; and Nagle v. Missouri Pac. Ry. Co., 75 Mo. 653, 42 Am. Rep. 418. 69 Bridger v. Asheville etc. R. R. Co., 25 S. C. 24. 70 Evanslch v. Gulf etc. Ry. Co., 57 Tex. 126, 44 Am. Rep. 586; Gulf etc. Ry. Co. v. Styron, 66 Tex. 421, 1 S. W. 161, and other cases in this state. 7i Ilwaca Ry. etc. Co. v. Heidrich, 1 Wash. 446, 22 Am. St. Rep. 169, 25 Pac. 335. 655 INJURY TO RIGHT OF PERSONAL, SECURITY. § 327 companies were to keep such dangerous agencies locked as they do their switches, so that none but servants who carry a key could disturb them. The dissenting decisions found their conclusions upon the idea that it is unreasonable to construe acts of rail- way companies as tantamount to an invitation which are not so in fact or in reason, so that the rule gov- erning the liability of persons for injuries to those who come upon premises by invitation will govern. Thus far, as has already been intimated in this sec- tion, there is reason in the cases sustaining the rule of nonliability. These decisions are found in Massa- chusetts, in a case where a child eleven years of age was injured; 72 in New Hampshire, in a case where a child seven years of age was injured by a turntable insecurely guarded and wrongfully set in motion by older boys; 73 in New Jersey where a child of tender years was injured, it being held that such child upon entering the premises assumed all dangers incident to the condition thereof; 74 in New York, 75 and in Tennessee. 76 § 327. Same Continued— Other Dangerous Things and Places. — The rule of liability on the part of own- ers of premises upon which attractive nuisances are 72 Daniels v. New York etc. R. R. Co., 154 Mass. 349, 26 Am. St. Rep. 253, 28 N. E. 283. 73 Frost v. Eastern R. R. Co., 64 N. H. 220, 10 Am. St. Rep. 396, 9 Atl. 790. 74 Delaware etc. R. R. Co. v. Reich, 61 N. J. L. 635, 68 Am. St. Rep. 727, 40 Atl. 682 (the age of the child is not disclosed; the two lines of the cases are considered and the liability in such cases criticised). See, also, Turess v. New York etc. Ry. Co., 61 N. J. L. 314, 40 Atl. 614. 75 Walsh v. Fitchburg Ry. Co., 145 N. Y. 301, 45 Am. St. Rep. 615, 39 N. E. 1068 (a child five years old); McAlpin v. Powell, 70 N. Y. 126, 26 Am. Rep. 555. 76 Bates v. Nashville etc. Ry. Co., 90 Tenn. 36, 25 Am. St. Rep. 665, 15 S. W. 1069. § 327 BY UNSAFE CONDITION OF LAND, ETC. 656 maintained has been applied in California, where a privy vault was left uncovered and unguarded close to a traveled street, a child three years old falling therein; 77 in Connecticut, where a gate was set up on land by the side of a lane through which children were in the habit of passing, whereby a child six or seven years of age was injured; 78 in Illinois, where an owner suffered a dangerous pond of water to exist upon his premises near a public street; 79 in Kan- sas, where au owner maintained upon his premises a reservoir filled with water to which children were attracted for fishing and other sports, which was well known to the landlord, who took no means to warn or exclude them, whereby a child eleven years of age was drowned; 80 in Indiana, where a land owner had used a vacant lot for piling up a mound of ashes which was used by children for a playground, the mound of ashes having been removed and replaced by burning embers; 81 in Kentucky, where lumber was piled in a negligent manner, by reason whereof a small child while playing near it was killed; 82 in Missouri, the doctrine was recognized, but was not applied in a case where an owner of a lot in a city failed to fence the same, by reason whereof a boy nine years of age entered thereon and while bathing in a pond upon the lot was drowned; 83 in Nebraska, 77 Malloy v. Hibernia Sav. etc. Soc. (Cal.), 21 Pac. 525. 78 Birge v. Gardiner, 19 Conn. 507, 50 Am. Dec. 261. 79 Pekin v. McMahon, 154 111. 141, 45 Am. St. Rep. 114, 39 N. E. 484 (the owner was held bound to use reasonable care to protect children from injury when coming on such premises). 80 Price v. Atchison Water Co., 58 Kan. 551, 62 Am. St. Rep. 625, 50 Pac. 450. 8i Penso v. McCormick, 125 Ind. 116, 21 Am. St. Rep. 211, 25 N. E. 156. 82 Branson v. Labrot, 81 Ky. 638, 50 Am. Rep. 193. 83 Moran v. Pullman Palace Car Co., 134 Mo. 641, 56 Am. St. Rep. 543, 36 S. W. 659 (an owner of a building in process of con- 057 INJURY TO RIGHT OF PERSONAL SECURITY. § 328 where an owner of a city lot had negligently per- mitted surface water to accumulate thereon which created a dangerous pond near the public schools, by reason whereof a child of tender years was drowned; 84 in Tennessee, where a proprietor of a factory left two cogwheels geared together outside of his building, very close to the street, exposed and unprotected; 85 and in Wisconsin, where the owner left a deep and dangerous excavation filled with water exposed and unguarded, a child being drowned therein. 86 In Minnesota, the doctrine of liability in such cases was repudiated in a case where there is upon the premises of an owner a dangerous pond, it being held that the owner was not bound to fence or otherwise guard it so as to prevent injury to chil- dren coming thereon without right or invitation, ex- press or implied, although they are induced to do so by the alluring attractiveness of such excavation or pond. 87 § 328. Other Cases of Nonliability.— it has been held that an owner of land is not liable for the drown- ing of a child eleven years old, a bright, active boy, in a pond of water on his premises adjacent to a struction held not liable for Injuries to a child playing thereat without his knowledge, and without any inducement or invita- tion); Witte v. Stifel, 126 Mo. 295, 47 Am. St. Rep. 668, 28 S. W. 891. 84 Richards v. Connell, 45 Neb. 467, 63 N. W. 915. 85 Whirley v. Whiteman, 1 Head, 610. In Cooper v. Overton, 102 Tenn. 211, 73 Am. St. Rep. 864, 52 S. W. 183, it is said that an own- er of dangerous premises may only be held to injury to children therefrom, unless they are induced to enter upon the land by some- thing unusual and attractive placed upon it by the owner with his knowledge, to remain there. 86 Klix v. Nieman, 68 Wis. 273, 60 Am. Rep. 854, 32 N. W. 223. 87 Stendal v. Boyd, 73 Minn. 53, 72 Am. St. Rep. 597, 75 N. W. 735. Torts, Vol. 1-42 i 329 BY UNSAFE CONDITION OF LAND, ETC. 658 public highway, which was created by a city while grading a street, the child going thereon without in- vitation; 88 nor for the death of a child who while fish- ing in a well in an old brickyard, falls in it and is drowned; 89 nor for an injury to one who while walk- ing on a dark, rainy night across a lot upon which a storehouse has been burned, falls in an uncovered cis- tern left on the vacant lot which the public uses in passing from street to street; 90 nor is a manu- facturer liable to trespassing children upon the open premises of a factory where typesetting machine® are manufactured, by the sudden discharge of water and steam from a pipe connected with the engine, the presence of the children not being known; 91 nor is a railway company liable for an injury to children who are attracted upon the premises of the company by fire set to rubbish on its right of way for the pur- pose of getting rid of it; 92 nor is a railroad com- pany liable for injury to children who go upon its premises and loosen cars standing upon its tracks. 93 § 329. Ordinance Requiring Excavations to be Filled or Fenced — Effect upon Liability. — It has been expressly decided in one state that, where an ordinance is passed by a municipality which requires all owners of property having thereon depressions or excava- tions to be filled or fenced, a failure to observe 88 Peters v. Bowman, 115 Cal. 345, 56 Am. St. Rep. 106, 47 Pac. 113, 598. 89 Gillispie v. McGowen, 100 Pa. St. 144, 45 Am. Rep. 365. 90 Lepnick v. Gaddis, 72 Miss. 200, 48 Am. St Rep. 547, 16 South. 213. 91 Mergenthaler v. Kirby, 79 Md. 182, 47 Am. St. Rep. 371, 28 Atl. 1065. 92 Erickson v. Great Northern Ry. Co., 82 Minn. 60, 83 Am. St. Rep. 410, 84 N. W. 462. 93 Haesley v. Wynona etc. R. R. Co., 46 Minn. 233, 24 Am. St. Rep. 220, 48 N. W. 1023. 659 INJURY TO RIGHT OF PERSONAL SECURITY. § 330 the requirements of such ordinances constitutes a breach of duty, and hence is negligence per se, or at least constitutes a prima facie case. 94 § 330. Injury from Falling Walls.— injury caused by the falling of the walls of a building presents a dif- ferent aspect of liability in some respects from that of other injuries considered in this chapter, because of the fact that an owner of a dangerous wall lo- cated where it is likely to fall in the street and in- jure foot-travelers owes a duty to the public in gen- eral, the question of invitation, license or trespass not being involved. It seems to be well settled that negligence is to be presumed from the falling of a building without explanatory circumstances. 95 The liability of own- ers of walls is said to be like that of those who keep animals whose habits are to stray, or who keeps dan- gerous animals which are a source of danger in them- selves to others; or those who store gunpowder in thickly populated places, or who blast rocks under such circumstances that flying fragments may injure others, or who construct buildings so that they will discharge snow, ice or water upon adjoining premises, or upon those passing in the street. It is considered that persons erecting chimneys or walls upon their premises are bound at their peril 94 Butz v. Cavanaugh, 137 Mo. 503, 59 Am. St. Rep. 504, 38 S. W. 1104. In Dobbins v. Missouri etc. Ry. Co., 91 Tex. 60, 66 Am. St. Rep. 856, 41 S. W. 62, the court says that when such a duty is imposed the courts may properly enforce it, or allow damages for its breach, but not before. A municipality cannot create a civil liability against a person violating such an ordinance in favor of persons injured by such violation: Moran v. Pullman Palace Car Co., 134 Mo. 641, 56 Am. St. Rep. 543, 36 S. W. 659. 95 Ryder v. Kinsey, 62 Minn. 85, 54 Am. St. Rep. 632, 64 N. W. 94; Mullen v. St. John, 57 N. Y. 567, 15 Am. Rep. 530; Cork v. Blos- som, 162 Mass. 330, 44 Am. St. Rep. 362, 38 N. E. 495. i 330 BY UNSAFE CONDITION OF LAND, ETC. 660 to use proper care In their erection and maintenance, such care as will prevent injuries from any cause excepting those over which the party has no control, such as vis major, acts of public enemies, wrongful acts of third persons, and the like, which human fore- sight could not be reasonably expected to anticipate and prevent. It is an absolute duty to construct and maintain them in a safe manner. 96 While this duty is said to be absolute and the liability would consequently be the same, yet some authorities hold that he is not an insurer to all the world, but is liable to injury only when arising from a failure to exercise the same intelligence, prudence, and care in regard to his property for the security of others that pru- dent men would exercise toward their own. 97 The owner of a wall in a dilapidated condition must be held responsible for an injury from the falling of a brick upon a passer-by in the street. 98 When a building has been destroyed by fire so that the walls are left standing in a ruined condition, and are a menace to the public, the owner is required to take the wall down. If he does not, and the same falls injuring persons, he is responsible. 99 And in the re- moval of such a wall he is required to observe such care as will be necessary to avoid injuring anyone, and is responsible for injury done by the falling of such a wall, even though it is being done by an in- 96 Cork v. Blossom, 162 Mass. 330, 44 Am. St. Rep. 362, 38 N. E. 495. 97 Schwartz v. Gilmore, 45 111. 455, 92 Am. Dec. 227. In Burton v. Davis, 15 La. Ann. 448, held no liability for falling structure if there is no proof of fault or negligence on the part of the owner. 98 Murray v. McShane, 52 Md. 217, 36 Am. Rep. 367. 99 Glover v. Mersman, 4 Mo. App. - 90; Schell v. Second Nat. Bank, 14 Minn. 43; Shearman and Redfield on Negligence, 1210, 1211. 661 INJURY TO RIGHT OF PERSONAL SECURITY. § 331 dependent contractor. 100 Although an owner's building is in the hands of an insurance company for repairs after a fire, this does not relieve him of his duty to see that it is in a safe condition. 101 § 331. Liability of City for Injury to Children.— There is no principle of law upon which to base a liability of a municipality for death or injury to children caused by any dangerous premises, such as a pond of water which is upon private property adjacent to its streets. As there is no duty imposed upon the city to guard or protect such places, the only power which it may have is to pass ordinances requiring them to be guarded and protected. And it cannot be held in damages for injury to persons resulting in a failure to enforce such ordinances. 102 Hence it has been held that a city is not liable for injury or death of a child who voluntarily goes upon a pond situated in a vacant lot and partially upon a public street, it not being liable under the rule requiring cities to keep streets in a reasonably safe condition for pedestrians; 103 nor can a city be held for the death of a child who wanders away and is drowned in a pond situate in the commons of a city some dis- tance from the highway; 104 nor for the death of a child who attempts to walk across ice formed on a ioo Covington etc. Bridge Co. v. Steinbrock, 61 Ohio St. 215, 76 Am. St. Rep. 375, 55 N. E. 618; Sessengut v. Posey, 67 Ind. 408, 33 Am. Rep. 98 (injury to property; held owner not liable in Massa- chusetts); Mahoney v. Libby, 123 Mass. 20, 25 Am. Rep. 6. aoi Steppe v. Alter, 48 La. Ann. 363, 55 Am. St Rep. 581, 19 South. 147. 102 Moran v. Pullman Palace Car Co., 134 Mo. 641, 56 Am. St. Rep. 543, 36 S. W. 659; Butz v. Cavanaugh, 137 Mo. 503, 59 Am. St. Rep. 504, 38 S. W. 1104. 103 Arnold v. St. Louis, 152 Mo. 173, 75 Am. St. Rep. 447, 52 S. W. 900; Bassett v. St. Joseph, 53 Mo. 290, 14 Am. Rep. 446. 104 Schauf v. Paducah, 20 Ky. Law Rep. 1796, 50 S. W. 42. § 332 BY UNSAFE CONDITION OF LAND, ETC. 662 hollow basin contiguous to a street which the city- uses for a dumping-ground. 105 But a city may be held responsible the same as individuals for an in- jury to children who go upon land owned by it next to one of its streets, upon which there is a dangerous pond of water, which is a source of attraction to chil- dren and to which the children of the surrounding neighborhood resort for play. 100 § 332. Dangerous Machinery Operated in the Usual Course Of Business. — The question of enticement, al- lurement or invitation has no application to the op- eration of dangerous machinery in the usual course of business, the owner being under no obligation to protect an infant trespasser from injury therefrom, although such infant is incapable of appreciating the danger, or of exercising the care necessary to avoid it. The movement of the works is a part of the regular and normal condition of the premises, and the law does not impose the obligation to shut down the gates and stop the business for the protection of trespass- ers. 107 105 Dehantz v. St. Paul, 73 Minn. 385, 76 N. W. 48. 106 Pekin v. McMahon, 154 IU. 141, 45 Am. St. Rep. 114, 39 N. E. 484. 107 Buch v. Amory Mfg. Co., 69 N. H. 257, 76 Am. St. Rep. 163, 44 Atl. 809. 663 INJURY TO RIGHT OF PERSONAL SECURITY. CHAPTER XXIV. INJURY TO EIGHT OF PERSONAL SECURITY— NEG- LIGENCE, BY COMMON CARRIERS OP PASSEN- GERS. I. RAILWAY COMPANIES. | 333. Common carrier defined. § 334. Carriers of passengers— Their duty as to the care they shall use. § 335. Same continued— The measure of care variously expressed. § 336. When one becomes a passenger. § 337. When carrier assumes duty toward passenger. § 338. Receiving passengers. § 339. Same continued — Duty of carrier when passenger boards car. § 340. Duty of railway as to station grounds, approaches and facilities for boarding cars. § 341. Construction and care of tracks. § 342. Duties of carrier in general as to construction of cars, en- gines and machinery. § 343. Same continued— When the fault is that of an independent contractor. | 344. Duties and liabilities in the operation of vehicles and ma- chinery. § 345. Liability of carrier to free passenger. § 346. The ticket— Its legal aspect. § 347. Same continued— Effect of conditions on ticket. § 348. Collisions— Derailments— Presumption of negligence from. § 349. Collisions through neglect of different carriers. § 350. Discharging passengers. § 351. Respective liabilities of lessor and lessee railroad com- panies, or of roads crossing each other. II. SLEEPING-CAR COMPANIES. § 352. Sleeping-car company — Its legal status. § 353. Same— Servants of sleeping-car company are servants of carrying company. § 354. Same— Duty toward passengers. § 355. Same— Duty to awaken passengers. §§ 333, 334 BY COMMON CARRIERS. 6C4 III. STREET RAILWAYS. § 356. Street railways as common carriers. § 357. Degree of care exacted of street railways toward their pas- sengers. § 358. Duty as to track and equipment. IV. BOATS AND SHIPS. § 359. Boats and ships— Duties and liabilities. V. ELEVATORS. § 360. Elevators are common carriers. § 361. Same — Care required of persons operating elevators. § 362. Same continued— Special instances of liability. § 363. Same continued— Person injured must be prudent. § 364. Falling into elevator shaft. I. RAILWAY COMPANIES. § 333. Common Carrier Defined.— A common car- rier of passengers is> one who, by virtue of his calling, undertakes, for compensation, to carry all persons as may choose to employ him, from one place to an- other; and everyone who undertakes to carry for compensation all persons indifferently is, as to duties and liabilities, to be deemed a common carrier. 1 Kailway companies, street railway companies, boats and ships, hacks, stagecoaches, transfer companies, express companies, elevators, and cabmen, are in- cluded within the term. § 334. Carriers of Passengers— Their Duty as to the Care They Shall Use. — Although a few early cases have held common carriers of passengers to be in- surers of the safety of their passengers from injury from any cause save an act of God or of a public enemy, this rule has never received general accept- ance, and the rule that the carrier is liable only for l Lough v. Outerbridge, 143 N. Y. 271, 42 Am. St. Rep. 712, 38 N. E. 292; Jackson etc. Works v. Hurlbut, 158 N. Y. 34, 70 Am. St. Rep. 432, 52 N. E. 665. 665 INJURY TO EIGHT OF PERSONAL SECURITY. § 334 negligence has been universally adopted. While this rule is undoubtedly founded in public policy, and is eminently just, tie reasons assigned for not holding the carrier as an insurer vary considerably, and upon examination often appear absurd. Thus, it is held that because of the great regard which the law has for human life and bodily safety the carrier is bound to exercise extraordinary care and diligence, 2 while at the. same time it is the universal rule that a com- mon carrier of goods is an insurer. The absurdity lies in holding a carrier for a higher degree of care and to a greater liability when the subject of the carriage, viz., goods and chattels, is of less value in the law, than is the lives and safety of persons. It is evident that the value of human life is not to deter- mine the extent of the care to be bestowed. Again, in many railroad cases the courts have said that extreme caution must be exercised because the violent agency of steam is employed and great speed is attained by the vehicles. But the proprietors of stagecoaches and hackdrivers are held to the same degree of caution when the means of locomotion is horse power and the speed of travel is much less than that of the railway. 3 In discussing the distinction between carriers of goods and of passengers in this regard an eminent court has said that passengers are "capable of taking care of themselves, and of exer- cising that vigilance and foresight in the mainte- nance of their rights which the owners of goods can- 2 Knight v. Portland etc. R. R. Co., 56 Me. 234, 96 Am. Dec. 449; Shearman and Redfield on Negligence, sec. 495. 3 "Liable for smallest degree of negligence": McKinney v. Neil, 1 McLean, 540, Fed. Cas. No. 8865; "bound to the utmost care": Bonce v. Dubuque St. Ry. Co., 53 Iowa, 278, 36 Am. Rep. 221, 5 N. W. 177; must act with "utmost caution and prudence": Stockton v. Frey, 4 Gill (Md.), 406, 45 Am. Dec. 138; liable if injury "could ^ have been prevented by human care and foresight": Frink v. Coe, 4 G. Greene (Iowa), 555, 61 Am. Dec. 141. S 334 BY COMMON CARRIERS. 6t3G not do." 4 This is true as to direct attacks upon the person made by employees of the carrier, but the court seems to have lost sight of the fact that the passenger is ais helpless to save himself from the result of defects in the mechanism, track, or the like, created by the negligence of the employees of the carrier, as the consignor is in regard to his goods. At any rate, the result of relieving the carrier of pas- sengers from the extreme liability of insurers has proven the wisdom of its adoption, whatever the rea- sons assigned. In its economic phase the develop- ment of our great carrying system would never have been accomplished had any other and greater liabil- ity been established. Prudent men would never have engaged in that business had they been compelled to become insurers, because of the great value of each life in the eyes of the law. But while it would be unwise to hold the carrier of passengers to this extent, it is no hardship to make the carriers of goods insure their safety because of the little value of the goods as compared to human life and especially as the carrier can relieve himself from this burden by contract and usually does when the value of the goods is extreme, at least limits himself to a given value. This discussion may more properly belong to an economic treatise than to a legal one, and yet pub- lic policy is nothing less than the legal name given for the economic reasons governing the decisions which cannot be based on other established grounds. The true foundation for the rule seems to be, then, that for economic reasons — or on account of public policy — it is reasonable to hold a carrier of goods liable as an insurer for their safety and a carrier of passengers to the exercise of due care. * Ingalls v. Bills, 9 Met. 1, 43 Am. Dec. 346. 667 INJURY TO RIGHT OF PERSONAL SECURITY. § 335 § 335. Same Continued— The Measure of Care Va- riously Expressed. — An extended examination of the authorities shows that the measure of the care to be exercised by carriers of passengers has been va- riously expressed. Many cases say broadly that it must be the "highest degree of care and diligence," 5 "the most exact care and diligence," 6 "extraordinary care," "the utmost skill, diligence, and human fore- sight," 7 without qualification. This view is too broad in its strict application, for the common carrier should not be hampered by the obligation to use every precaution of which the mind of man can conceive that may possibly prevent an in- jury, as this would involve such expenditures of money as useless schemes, and the employment of many more hands than needed, and would drive all carriers from the business, or prevent all persons of ordinary pru- dence from engaging in the business. 8 With this qualification the obligation has been said to be that "they should use the highest degree of care that is reasonably consistent with the practical conduct of the business," 9 or that they are bound to the exercise of the utmost care and skill which prudent persons would be likely to exercise as to themselves under like circumstances, and the slightest imputation of negli- gence against which human care and skill can provide 5 Nashville etc. R. R. Co. v. Elliott, 1 Cold. (Tenn.) 611, 78 Am. Dec. 506. 6 McElroy v. Nashua etc. R. R. Co., 4 Cush. 400, 50 Am. Dec. 794. 7 Indianapolis etc. R. R. Co. v. Horst, 93 U. S. 291; Spellman v. Lincoln Rapid Transit Co., 36 Mich. 890, 38 Am. St. Rep. 753; Gard- ner v. Waycross etc. R. R. Co., 97 Ga. 482, 54 Am. St. Rep. 435, 25 S. E. 334 (extraordinary); Connell v. Chesapeake etc. Ry. Co., 93 Va. 44, 57 Am. St. Rep. 786, 24 S. E. 467 (utmost skill, etc.). 8 Tuller v. Talbot, 23 111. 357, 76 Am. Dec. 695; Indianapolis etc. R. R. Co. v. Horst, 93 U. S. 291; Taylor v. Grand Trunk Ry. Co., 48 N. H. 304, 2 Am. Rep. 229. 9 Pershing v. Chicago etc. Ry. Co., 71 Iowa, 561, 32 N. W. 488; § 336 BY COMMON CARRIERS. 668 will make them responsible for any defect of machin- ery, or for any negligence on the part of their ser- vants. 10 § 336. When One Becomes a Passenger.— The rela- tion of carrier and passenger is created by contract, expressly or impliedly. This is done by the person going upon the premises of the carrier, and purchas- ing a ticket and boarding a train, so that it follows that the contract is generally implied from the cir- cumstances, viz., an offer to become a passenger, and acceptance by the carrier, 11 and the ticket is some- times regarded as the contract. 12 There is much dif- ference of judicial opinion as to just when the person becomes a passenger, there being many authorities to the effect that one becomes a passenger, and entitled to all privileges, as such, when he has purchased a ticket and been received upon the station grounds ready to embark upon the train. 13 In a comparatively recent opinion it is said: "A railroad company holds itself out as ready to receive and carry, and is bound Taylor v. Grand Trunk Ry. Co., 48 N. H. 304, 2 Am. Rep. 229; Tul- ler v. Talbot, 23 111. 357, 76 Am. Dec. 695. 10 Connell v. Chesapeake etc. Ry. 93 Va. 44, 57 Am. St. Rep. 786, 24 S. E. 467; Louisville etc. Ry. v. Minogue, 90 Ky. 369, 29 Am. St. Rep. 378, 14 S. W. 357; Furnish v. Missouri etc. Ry., 102 Mo. 438, 22 Am. St. Rep. 781, 13 S. W. 1044; Texas etc. Ry. Co. v. Miller, 7» Tex. 78, 23 Am. St. Rep. 308, 15 S. W. 264. 11 Schepers v. Union Depot R. R. Co., 126 Mo. 665, 29 S. W. 712; Webster v. Fitchburg R. R. Co., 161 Mass. 298, 37 N. E. 165; Hans- ley v. Jamesville R. R. Co., 115 N. C. 602, 44 Am. St. Rep. 474, 20 S. E. 528. 12 See sec. 346, post. 13 Choate v. Missouri R. R. Co., 67 Mo. App. 105; Chicago R. R. Co. v. Field, 7 Ind. App. 172, 52 Am. St. Rep. 444, 34 N. E. 406; Gardner v. New Haven etc. R. Co., 51 Conn. 143, 50 Am. Rep. 12; Hansley v. Jamesville R. R. Co., 115 N. C. 602, 44 Am. St. Rep. 474, 20 S. E. 528; Warren v. Fitchburg R. R. Co., 8 Allen, 227, 85 Am. Dec. 700; Rogers v. Kennebec Steamboat Co., 86 Me. 261, 29> Atl. 1069; Allender v. Chicago etc. R. R. Co., 37 Iowa, 2G4. 669 INJURY TO EIGHT OF PERSONAL SECURITY. § 337 to receive and carry, all passengers who offer them- selves as such at places provided for taking passage on its trains, and who take passage in the cars pro- vided for passengers. When one so presents himself, the contract relation under which he acquires the rights of a passenger may be either express or implied from the circumstances. If a person goes upon cars provided by the railroad company for the transporta- tion of passengers, with the purpose of carriage as a passenger, with the consent, express or implied, of the railroad company, he is presumptively a passenger. Both parties must enter into and be bound by the con- tract. The passenger may do this by putting himself into the care of the railroad company to be transport- ed, and the company does it by expressly or impliedly receiving him and accepting him as a passenger. The acceptance of the passenger need not be direct or ex- press, but there must be something from which it may be fairly implied. One does not become a passenger until he has put himself in charge of the carrier, and has been expressly or impliedly received as such by the carrier The purchase of a ticket does not make one a passenger unless he comes under the charge of the carrier, and is accepted for carriage by virtue of it." 14 This will be further discussed in the next section. § 337. When Carrier Assumes Duty Toward Passen- ger. — The determination of the time when one sus- tains the relation of passenger is of importance in as- certaining when the duty of the carrier attaches. It is clear that the relation exists as soon as a ticket is 14 Illinois Central R. R. Co. v. O'Keefe, 168 111. 115, 61 Am. St. Rep. 68, 48 N. E. 294; Bricker v. Philadelphia etc. R. R. Co., 132 Pa. St. 1, 19 Am. St Rep. 585, 18 Atl. 983. See extensive note, 61 Am. St. Rep. 75. $ 337 BY COMMON CARRIERS. 670 purchased. 15 This question is of consequence only as reflecting upon the measure of duty of a railway com- pany toward intending passengers, in and about the station or depot, whether the same degree of care is due then and there, as after the person has boarded the car. Some courts maintain that the contract of carriage begins when the passenger comes upon the carrier's premises, or upon its means of conveyance, with a purpose of purchasing a ticket within a reason- able time. 16 In either case, some duty devolves upon the company. Does the obligation of exercising extreme care for the safety of the traveler exist at this time, or will a less degree of care suffice in respect to the buildings and grounds than as to the vehicles and their opera- tion? Some courts of considerable weight hold the degree to be the same in either case so long as the pas- senger remains such, 17 but many, and probably the weight of authority, hold a contrary view, which is well expressed by one court saying that "as relates to the approaches to its cars, a less degree of care is re- quired of a railroad company than that required in IB Warren, v. Fitchburg R. R. Co., 8 Allen, 227, 85 Am. Dec. 700; Central etc. R. R. Co. v. Perry, 58 Ga. 461; Choate v. Missouri Pac. Ry., 67 Mo. App. 105; Wabash etc. Ry. Co. v. Rector, 104 111. 296; Rogers v. Kennebec Steamboat Co., 86 Me. 261, 29 Atl. 1069; Baltimore etc. Ry. v. State, 63 Md. 135. Contra, Illinois Cent. R. R. Co. v. O'Keefe, 168 111. 115, 61 Am. St. Rep. 68, 48 N. E. 294. 16 Hansley v. J. & W. R. R. Co., 115 N. C. 602, 44 Am. St. Rep. 474, 20 S. E. 528; Warren v. Fitchburg R. R. Co., 8 Allen, 227, 85 Am. Dec. 700; Johns v. Charlotte etc. R. R. Co., 39 S. C. 162, 39 Am. St. Rep. 709, 17 S. E. 698; Allender v. C. R. I. etc. R. R. Co., 37 Iowa, 264; Grimes v. Pennsylvania Co., 36 Fed. 72. 17 Pennsylvania Co. v. Marion, 123 Ind. 415, 18 Am. St. Rep. 330, 23 N. E. 973; Johns v. Charlotte etc. R. R. Co., 39 S. C. 162, 39 Am. St. Rep. 709, 17 S. E. 698; Skottowe v. Oregon etc. Ry. Co., 22 Or. 430, 30 Pac. 222; Louisville etc. Ry. Co. v. Treadway, 142 Ind. 475, 40 N. E. 807, 41 N. E. 794; Louisville etc. Ry. Co. v. Lucas, 119 Ind. 583, 21 N. E. 968. 671 INJURY TO EIGHT OF PERSONAL SECURITY. § 337 regard to the roadbed, machinery, and construction of its cars, or where a defect in any of the appliances would be likely to occasion great danger and loss of life to travelers, and the corporation is bound simply to exercise ordinary care in view of the dangers to be apprehended." 18 This rule is applicable to all phases of the relation of carrier and passenger. The train and tracks must be constructed, maintained and man- aged with the care which a reasonable and prudent man would use when the value of the life likely to be endangered by defects, the conditions under which the vehicles and roadbed are to be used, and the cir- cumstances probably to be encountered are consid- ered. The stations also must be built with such cau- tion, and such care taken and inspections made, that are reasonable, when the amount of travel which passes through it, and the number of persons which frequent the same, and the conditions under which it will be used, are considered. The rule first stated requires the same frequent examination of bolts, screws, rods, and the like in a depot of a flag station as of a passenger coach which passes it at a rate of sixty miles an hour; the same careful inspection of the platform for loosened nails when it is not used by passengers once a day as of the tracks for loosened spikes when hundreds pass over the same every hour. The latter rule, however, takes account of all the cir- cumstances surrounding each case, aud does not hold 18 Kelly v. Manhattan Ry. Co., 112 N. Y. 443, 20 N. E. 383. See Lafflln v. Buffalo etc. R. R. Co., 106 N. Y. 136, 60 Am. Rep. 433, 12 N. E. 599; Palmer v. Pennsylvania Co., Ill N. Y. 488, 18 N. E. 859; Skottowe v. Oregon etc. Ry. Co., 22 Or. 431, 30 Pac. 222; Hiatt v. Des Moines etc. Ry. Co., 96 Iowa, 169, 64 N. W. 766; More- land v. Boston etc. R. R. Co., 141 Mass. 31, 6 N. E. 225; Falls v. San Francisco etc. R. R. Co., 97 Cal. 114, 31 Pac. 901; Michigan Central R. R. Co. v. Coleman, 28 Mich. 440; Conroy v. Chicago etc. Ry. Co., 96 Wis. 243, 70 N. W. 486; Gulf etc. Ry. Co. v. Butcher, 83 Tex. 309. 18 S. W. 583. I 338 BY COMMON CARRIERS. 672 the lonely station-keeper to the same nervous tension as the engineer of a fast express train, but only re- quires that degree of care, caution, skill and diligence which a reasonable and prudent man would expect to be exercised under those circumstances. § 338. Receiving Passengers.— The duty to exercise care extends, first of all, to the construction of the station-house and the platforms for the use of the passengers or those about to become passengers. The degree of care necessary to be exercised with respect to such matters has been said to be only ordinary care; 19 but this means the same as reasonable care under the circumstances, because the use of the sta- tion by the railway company for receiving and dis- charging passengers involves nothing in the nature of an intrinsically dangerous agency, and the amount of care necessary in protecting passengers from in- jury through defects in their platform and stational facilities is not so great as that in protecting them from injury through the use of machinery. But rea- sonable care does not mean that loose planks, broken boards and holes may be allowed to remain unre- paired or unguarded for any length of time, and such neglect constitutes negligence; 20 and lack of proper lights, so that the platform is not reasonably safe for 19 Falls v. San Francisco etc. R. Co., 97 Cal. 114, 31 Pac. 901; Lafflin v. Buffalo etc. R. Co., 106 N. Y. 136, 60 Am. Rep. 433, 12 N. B. 599; Moreland v. Boston etc. R. Co., 141 Mass. 31, 6 N. E. 225; Pennsylvania Co. v. Marion, 123 Ind. 415, 18 Am. St. Rep. 330, 23 N. E. 973; Kelly v. Manhattan Ry. Co., 112 N. Y. 443, 20 N. E. 383; Michigan Cent. R. Co. v. Coleman, 28 Mich. 440. 20 Green v. Pennsylvania R. Co., 36 Fed. 66; Louisville etc. Ry. Co. v. Lucas, 119 Ind. 583, 21 N. E. 968; Louisville N. R. Co. v. Wolfe, 80 Ky. 82; Jordon v. New York etc. R. R. Co., 165 Mass. 346, 52 Am. Rep. 522, 43 N. E. Ill; Fullerton v. Fordyce, 121 Mo. 1, 42 Am. St. Rep. 516, 25 S. W. 587; Clussman v. Long Island R. Co., 9 Hun, 618; Cross v. L. S. & M. S. Ry. Co., 69 Mich. 363, 13 Am. St. Rep. 399, 37 N. W. 361. 673 INJURY TO RIGHT OF PERSONAL SECURITY. § 338 ordinary use, is negligence. 21 Nor is it due care to allow obstacles to lie upon the platform; 22 and pas- sengers standing thereon must be protected from ar- ticles, such as mail bags, likely to be thrown thereon from passing trains. 23 So, too, snow and ice, which may cause injuries, must be removed within a reason- able time after their accumulation. 24 And this duty of care extends to every part of the grounds of the railway company and also to all approaches main- tained by the company, or used, or even allowed to be used by it, as an entrance or exit from its grounds, even though in the latter case it is maintained by others. 25 The amount of care varies not only with the means used to transport the passengers, but with the condition of the passengers themselves. Thus, more attention must be paid to a sick or aged person than to a well or younger one; a delicate woman, a lame man or a child than one in good health, and un- der no disability. They are entitled to more time in 21 Alabama etc. R. Co. v. Arnold, 84 Ala. 159, 5 Am. St. Rep. 354, 4 South. 359; Central etc. Co. v. Smith, 80 Ga. 526, 5 S. E. 772; Reynolds v. Texas etc. Ry. Co., 37 La. Ann. 694; Jordon v. New York etc. R. R. Co., 165 Mass. 346, 52 Am. St. Rep. 522, 43 N. E. Ill; Lafflin v. Buffalo etc. R. Co., 106 N. Y. 136, 60 Am. Rep. 433, 12 N. E. 599; Texas etc. Ry. Co. v. Brown, 78 Tex. 397, 14 S. W. 1034. 22 Sargent v. St. Louis etc. Ry. Co., 114 Mo. 348, 21 S. W. 823; Moreland v. Boston etc. Ry. Co., 141 Mass. 31, 6 N. E. 225; Burn- ham v. Wabash W. Ry. Co., 91 Mich. 523, 52 N. W. 14. 23 Snow v. Eitchburg R. Co., 136 Mass. 552, 49 Am. Rep. 40; Carpenter v. Boston etc. Co., 97 N. Y. 494, 49 Am. Rep. 540. 24 Louisville etc. R. Co. v. New York Elev. Ry. Co., 73 N. Y. 595; Weston etc. R. Co. v. Cockerel (Ky.), 33 S. W. 407; Timpson v. Manhattan Ry. Co., 52 Hun, 489, 5 N. Y. Supp. 684. 25 Keefe v. Boston etc. R. Co., 142 Mass. 251, 7 N. E. 874; Dela- ware etc. R. Co. v. Trautwein, 52 N. J. L. 169, 19 Am. St. Rep. 442 19 Atl. 178; Watson v. Oxana-hand Co., 92 Ala. 320, 8 South. 770; Skottowe v. Oregon etc. Ry. Co., 22 Or. 430, 30 Pac. 222; Texas etc. Ry. Co. v. Brown, 78 Tex. 397, 14 S. W. 1034; Cross v. Lake Shore etc. Ry. Co., 69 Mich. 363, 13 Am. St. Rep. 399, 37 N. W. 361. Torts, Vol. 1-^3 § 330 BY COMMON CARRIERS. 674 which to get on a car and become seated and to get off; 26 and if the company accept one who needs spe- cial attention, with knowledge of that fact, and with- out an attendant, the company is liable for not pro- viding the attention necessary. 27 § 339. Same Continued— Duty of Carrier When Pas- senger Boards Car. — As the likelihood of danger in- creases, it is reasonable to demand increased caution and diligence, and where the carrier actually receives the passengers upon its vehicles or into> such proxim- ity thereto as renders them subject to the dangers from the powerful agencies and machinery used in transportation, its duty in this regard reaches its height. When they attempt to board the carrier's train, the highest practical care must be exercised to prevent injury to them. Thus, if they are required to cross tracks of the carrier, great care should be ex- ercised so as not to run them down. 28 And when they are in the act of boarding the vehicle, it is the duty of the carrier to allow the passengers a reason- able time to get on board before starting, 29 and also 26 Sheridan v. Brooklyn City etc. R. Co., 36 N. Y. 39, 93 Am. Dec. 490; St. Louis etc. Ry. Co. v. Finley, 79 Tex. 85, 15 S. W. 266; Ridenhour v. Kansas City Cable Ry. Co., 102 Mo. 270, 13 S. W. 889, 14 S. W. 760. 27 Croom v. Chicago etc. Ry. Co., 52 Minn. 296, 38 Am. St. Rep. 557, 53 N. W. 1128. 28 Warren v. Fitchburg Ry. Co., 90 Mass. 227, 85 Am. Dec. 700; Baltimore etc. R. R. Co. v. State, 63 Md. 135; Chicago etc. Ry. Co. v. Ryan, 165 111. 88, 46 N. E. 208; Robostelli v. New York etc. R. R. Co., 33 Fed. 796. 29 Central Ry. Co. v. Smith, 74 Md. 212, 21 Atl. 706; International etc. Ry. Co. v. Copeland, 60 Tex. 325; North Chicago St. Ry. Co. v. Cook, 145 111. 551, 33 N. E. 958; Dougherty v. Missouri Ry. Co., 81 Mo. 325, 51 Am. Rep. 239; Cohen v. West Chicago St. Ry. Co., 60 Fed. 698; Dudley v. Front St. Cable Ry. Co., 73 Fed. 128; Holmes v. Allegheny Traction Co., 153 Pa. St. 152, 25 Atl. 640; Keating v. New York Central etc. R. R. Co., 49 N. Y. 673; Maher 675 INJURY TO RIGHT OF PERSONAL SECURITY. § 340 to avoid giving a sudden jerk to the cars while the passenger is boarding them while at rest, 30 or in mo- tion. 31 It is the duty of the conductor of a train to look after the safety of passengers entering the train, 32 and to warn them of the sudden start of the cars, 33 or that the train will not stop for them. 34 § 340. Duty of Railway as to Station Grounds, Ap- proaches and Facilities for Boarding Cars. — As we have previously seen, contrary views have been expressed as to when the duty of carrier toward a passenger, or an intending passenger, attaches, the weight of authority, as we find it, being to the effect that the duty of the carrier is assumed when the per- son comes upon the premises for the purpose of be- coming a passenger. 35 In those jurisdictions where this rule prevails, a question to be first considered in connection with the responsibility of the carrier for injuries to an intending passenger is, whether the same high degree of care is exacted of the carrier with respect to the station grounds, approaches, and v. Central Park etc. Ry. Co., 67 N. Y. 52; Norfolk etc. R. R. Co. v. Groseclose, 88 Va. 267, 29 Am. St. Rep. 718, 13 S. E. 454. 30 Central Ry. Co. v. Smith, 74 Md. 212, 21 Atl. 706; Inter- national etc. Ry. Co. v. Copeland, 60 Tex. 325; North Chicago St. Ry. Co. v. Cook, 145 111. 551, 33 N. E. 958; Dougherty v. Missouri Ry. Co., 81 Mo. 325, 51 Am. Rep. 239; Cohen v. West Chicago- St. Ry. Co., 60 Fed. 698; Dudley v. Front St. Cable Ry. Co., 73 Fed. 128; Holmes v. Allegheny Traction Co., 153 Pa. St. 152, 25 Atl. 640; Keating v. New York Central etc. R. R. Co., 49 N. Y. 673; Maher v. Central Park etc. Ry. Co., 67 N. Y. 52; Norfolk etc. R. R. Co. v. Groseclose, 88 V t a. 267, 29 Am. St. Rep. 718, 13 S. E. 454. 31 Conner v. Citizens' St. Ry. Co., 105 Ind. 62, 55 Am. Rep. 777, 4 N. E. 441; Montgomery etc. Ry. Co. v. Stewart, 91 Ala. 421, 8 South. 708; Eppendorf v. Brooklyn etc. R. R. Co., 69 N. Y. 195, 25 Am. Rep. 171. 32 Michigan Central R. R. Co. v. Coleman, 28 Mich. 440. 33 Detroit etc. R. Co. v. Curtis, 23 Wis. 152, 99 Am. Dec. 141. 34 Keating v. New York Cent. R. R. Co., 49 N. Y. 673. 35 Ante, sees. 336, 337. § 340 BY COMMON CARRIERS. 676 facilities for boarding cars, as when the person actu- ally becomes a passenger, or whether up to that time only ordinary care is required. In many cases, the rule is generally stated that the carrier must provide safe means for access to and from its station for the use of passengers, and is bound to keep in a reason- ably safe condition all portions of its platforms, and approaches thereto, to which the public do or would naturally resort, and all portions of its station grounds reasonably near to the platforms, where passengers, or those who have purchased tickets with a view to take passage on the cars, would naturally or ordinarily be likely to go. The rule is thus stated without further particularization as to the measure of care required to keep the same in a safe condition, and the authorities are quite numerous. 36 In an ex- treme case where the carrier invited persons wishing passage by its cars, by day and by night, to reach their cars, to embark thereon, by crossing a trestle ten feet high, with an open flooring, the court charged 36 McDonald v. Chicago etc. R. Co., 26 Iowa, 124, 96 Am. Dec. 114; citing Burgess v. Railroad Co., 95 Bng. Com. L. 923, and other English cases; Sawyer v. Rutland etc. R. R. Co., 27 Vt 377; Murch v. Concord R. R. Corp. Co., 29 N. H. 9, 61 Am. Dec. 631; Frost v. Grand Trunk R. R Co., 10 Allen, 387, 87 Am. Dec. 668. See Jefferson ville etc. R. R. Co. v. Riley, 39 Ind. 586; Patten v. Chicago etc. Ry. Co., 32 Wis. 524; Cross v. Lake Shore Ry. Co., 69 Mich. 363, 13 Am. St. Rep. 399, 37 N. W. 361, note; Moses v. Louis- ville R. R. Co., 39 La. Ann. 649, 4 Am. St. Rep. 231, 2 South. 567; Delaware R. R. Co. v. Trautwein, 52 N. J. L. 169, 19 Am. St. Rep. 442, 19 Atl. 178; Alabama etc. R. R. v. Arnold, 84 Ala. 159, 5 Am. St. Rep. 354, 4 South. 359; Pennsylvania Co. v. Marion, 123 Ind. 415, 18 Am. St. Rep. 330, 23 N. E. 973; Gaynor v. Old Colony etc. Ry., 100 Mass. 208, 97 Am. Dec. 96; Tobin v. Portland etc. R. R. Co., 59 Me. 183, 8 Am. Rep. 415; Cartwright v. Chicago etc. Ry. Co., 52 Mich. 606, 50 Am. Dec. 274; Missouri Pacific Ry. Co. v. Neis- wanger, 41 Kan. 621, 13 Am. St. Rep. 304, 21 Pac. 582; Lucas v. Pennsylvania Co., 120 Ind. 205, 16 Am. St. Rep. 323, 21 N. E. 972; Palmer v. Pennsylvania Co., Ill N. Y. 488, 18 N. E. 859; Fordyce v. Merrill, 49 Ark. 277, 5 S. W. 329. 677 INJURY TO EIGHT OF PERSONAL SECURITY. § 341 the jury that "this extraordinary care would be re- quired of the railroad authorities as to any person who was going in the proper way, by any proper ap- proach, to take the cars, or to purchase a ticket, etc. ; .... that he had the right to find everything that was necessary for the railroad to have done to secure his safety." This was approved by the appellate court. 37 This duty extends to the lighting of eating- houses, provided for the convenience of passengers, 38 and to the maintenance of such lights as will show the edge of the platforms. 39 It is not negligence to provide only one side of the track with a platform for alighting from and boarding cars; 40 nor to allow snow to remain on steps for but a short time only af- ter the snow stopped; 41 nor to permit milk cans to re- main on part of an unfrequented platform if enough space remain for passengers; 42 nor to allow shingles to lie on the platform a short time. 43 § 341. Construction and Care of Tracks.— The con- struction and maintenance of safe and sound tracks is of the utmost importance in securing the security of passengers. A flaw or defect existing at the time of construction or occasioned by the use in transpor- tation renders most probable an accident which may result in extreme injuries. Over the construction and maintenance of its roadbed the common carrier is bound to exercise the utmost watchfulness practi- 37 Johns v. C. C. & A. R. R. Co., 39 S. 0. 162, 39 Am. St. Rep. 709, 17 S. E. 698. 38 Peniston v. C. St. L. & N. O. Ry., 34 La. Ann. 777, 44 Am. Rep. 444. 39 Id.; Sargent v. St. Louis & S. P. Ry. Co., 114 Mo. 348, 21 S. W. 823; Gulf etc. Ry. v. Butcher, 83 Tex. 309, 18 S. W. 583. 40 Michigan Cent. R. R. Co. v. Coleman, 28 Mich. 440. 4i Kelly v. Manhattan Ry. Co., 112 N. Y. 443, 20 N. E. 383. 42 Falls v. San Francisco R. R. Co., 97 Cal. 114, 31 Pac. 901. 43 Morland v. B. & P. R. R. Co., 141 Mass. 31, 6 N. E. 225. § 341 BY COMMON CARRIERS. 678 cable to prevent defects from existing or continu- ing. 44 Thus, the roadbed and track must be so made as to avoid dangers reasonably to be foreseen by competent engineers as liable to result from fresh- ets and storms likely to occur in that neighborhood cind locality, 45 and omitting to examine a track with- in a reasonable time after a storm and freshet of unusual violence resulting in an accident from a part of the track being washed away is negligence. 40 Again, it is negligence to allow ties to remain which are so rotted as to be insufficient to hold the spikes securing the rails. 47 The duty of the carrier in regard to its tracks and roadbed extends to ob- structions to free and safe travel over them by its passenger vehicles. The carrier must use the great- est diligence and foresight to prevent objects from coming upon the tracks, or so near to them as to en- danger travel, when the likelihood of their doing so might have been anticipated, and to exercise due diligence to see that they are removed from the tracks before any injury has been done thereby. The obstructions may consist of the cars belonging to the carrier itself, and may have been left on, or danger- ously near, the tracks by the carrier itself, 48 or on 44 Louisville etc. Ry. Co. v. Thompson, 107 Ind. 442, 57 Am. Rep. 120, 8 N. E. 18, 9 N. E. 357; Pershing v. Chicago etc. R. Co., 71 Iowa, 561, 32 N. W. 488; Toledo etc. R. Co. v. Apperson, 49 111. 480; Libby v. Maine Cent. R. Co., 85 Me. 34, 26 Atl. 943; Kansas Pacific Ry. Co. v. Miller, 2 Colo. 442. 45 Kansas Pac. Ry. Co. v. Miller, 2 Colo. 442; Libby v. Maine Cent. Ry. Co., 85 Me. 34, 26 Atl. 943. 46 Kansas Pac. Ry. Co. v. Miller, 2 Colo. 442; Hardy v. North Carolina Cent. Ry. Co., 74 N. C. 734; Louisville etc. Ry. Co. v. Thompson, 107 Ind. 442, 57 Am. Rep. 120, 8 N. E. 18, 9 N. E. 357. 47 Peoria etc. R. Co. v. Reynolds, 88 111. 418; Chicago etc. Ry. Co. v. Lewis, 145 111. 67, 33 N. E. 960; Louisville etc. Ry. Co. v. Miller, 141 Ind. 533, 37 N. E. 343. 48 Farlow v. Kelly, 108 U. S. 288, 2 Sup. Ct. Rep. 555. 679 INJURY TO RIGHT OF PERSONAL SECURITY. § 342 sidetracks so situated that gravity, 49 or the wind and elements could send them into the places of danger, 50 or it may consist of rocks thrown upon the track dur- ing blasting or ballasting in the construction of the road, 51 or the obstruction may be some object near the track so as to strike the passenger or the vehicle, such as telegraph poles, 52 or derrick, 53 or coal-bins. 54 Again, if injuries are caused by collision with ani- mals which stray upon the tracks through the failure of the carrier to fence against them, the carrier will be liable for the damage done to its passengers. 55 § 342. Duties of Carrier in General as to Construc- tion of Cars, Engines, and Machinery. — Those who un- dertake to transport persons from one place to an- other are bound to use the highest practicable dili- gence to obtain safe machinery by which to convey their passengers and to keep it in efficient condition. Railroads must have cars which are reasonably free from defects, engines which will not cause damage, and due care must be observed to keep them in a suit- able condition. 56 Boat and ship companies must have boats which are reasonably safe under all kinds 49 Spicer v. Chicago etc. Ry. Co., 29 Wis. 580; Smith v. New York etc. Co., 46 N. J. L. 7; Union Pac. Ry. Co. v. Harris, 158 U. S. 326, 15 Sup. Ct. Rep. 843. 50 Webster v. Rome etc. R. R. Co., 115 N. Y. 112, 21 N. E. 725. 51 Virginia Cent. R. Co. v. Sanger, 15 Gratt. 230. 62 Chicago St. Ry. Co. v. Williams, 140 111. 275, 29 N. E. 672; Elliott v. New Port St Ry. Co., 18 R. I. 707, 28 Atl. 338, 31 Atl. 694; Chicago etc. R. R. Co. v. Russell, 91 111. 298, 33 Am. Rep. 54. 53 Seymour v. Citizens' Ry. Co., 114 Mo. 266, 21 S. W. 739. 54 Dickenson v. Port Huron etc. Ry. Co., 53 Mich. 43, 18 N. W. 553. 55 Gulf etc. Ry. Co. v. Wilson, 79 Tex. 371, 23 Am. St. Rep. 345, 15 S. W. 280; Lackawanna etc. R. Co. v. Chenewith, 52 Pa. St. 382, SI Am. Dec. 168; Eames v. Texas etc. Ry. Co., 63 Tex. 660; Fordyce v. Jackson, 56 Ark. 594, 20 S. W. 528, 597. 56 Pennsylvania R. R. Co. v. Roy, 102 U. S. 456; Taylor v. Grand § 342 BY COMMON CARRIERS. 680 of weather which may be expected. 57 Elevators also must be free from all defects in their running appar- atus, and the owners must provide reasonably safe devices to prevent injury from latent defects which might be anticipated. "Common carriers of passengers must use the best mechanical appliances in their vehicles, and exercise the highest degree of practicable care and skill to de- termine that all their appliances are safe for possible transportation, but they are not insurers, and conse- quently are not liable for latent defects not discover- able by the exercise of proper care and skill." 58 The duty of safe transportation implies that the carrier is bound to provide safe vehicles in which to carry the passengers. They must be such as are suited to the mode of travel employed by the carrier on water, road, or track; they must be able to with- stand all usage and handling incident to such mode; they must be so equipped as to render the danger less perilous. The first proposition is nearly axiomatic; a carrier on water must use vehicles or means de- signed for such mode of travel. But the vehicles used must be suited not alone in nature, but in strength and construction, to the uses to which they are to be put. The ships must be seaworthy; their construction must prevent their loss through dangers incident to travel by water. So the stagecoach must Trunk Ry. Co., 48 N. H. 304, 2 Am. Rep. 229; Hegeman v. Western R. R. Co., 13 N. Y. 9, 64 Am. Dec. 517; St. Louis etc. Ry. Co. v. Valirius, 56 Ind. 511; Meier v. Pennsylvania R. R. Co., 64 Pa. St. 225, 3 Am. Rep. 581; Chicago etc. R. R. Co. v. Pillsbury, 123 111. 9, 5 Am. St. Rep. 483, 14 N. E. 22; Palmer v. Delaware etc. Canal Co., 120 N. Y. 170, 17 Am. St. Rep. 629, 24 N. E. 302. 57 Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Le Barron v. East Boston Ferry Co., 11 Allen, 312, 87 Am. Dec. 717; Jabine v. Midgett, 25 Ark. 474. 58 1 Fetter on Carriers of Passengers, sec. 38. 681 INJURY TO EIGHT OF PERSONAL SECURITY. § 342 be built strongly enough to withstand the knocks and rough handling incident to travel by the road, and the equipment must be of such a character and in such a condition as to render injury as nearly impossible as human skill and care can render it. Likewise the railroad trains and street-cars must be so constructed and of such a pattern that it will undergo with safety to those whom it carries all strains and usage to which a train or car may reasonably be expected to be subjected. If any defects in the construction of the vehicle or in the machinery by which it is operated, or in its running gear, or the devices by which it is controlled, such as render an accident dangerous to the personal security of the passengers liable, exist, and they may be ascertained by the exercise of due care and dili- gence, their continued existence is negligence, and injuries which flow from them as a proximate cause render the carrier liable for damage. Latent defects, or those which are so hidden that they cannot be discovered by the exercise of due care and diligence, do not render the carrier liable for in- juries flowing from them. In other words, the car- rier is not an insurer of the safety of its vehicles, its tracks, or machinery, but is held by the law to a very high degree of care to obtain, use and inspect its equipment, and if by the use of such care the dangers might have been discovered and the injuries prevent- ed, then a liability arises. The degree of care or dili- gence required has been discussed before. 59 59 Ante, sec. 334; Meier v. Pennsylvania R. E. Co., 64 Pa. St. 225, 3 Am. Rep. 581; Ingalls v. Bills, 9 Met. (Mass.) 1, 43 Am. Dec. 346; Dadd v. New Bedford R. R. Co., 119 Mass. 412, 20 Am. Rep. 331; Curtis v. Rochester etc. R. R. Co., 18 N. Y. 534, 75 Am. Dec. 258; Palmer v. Delaware etc. Canal Co., 120 N. Y. 170, 17 Am. St. Rep. 629, 24 N. E. 302. I 342 BY COMMON CARRIERS. 682 In order to constitute due care under the circum- stances, it is held that the carrier is bound to make use of the best tests as to the efficiency and safety of his vehicle and machinery which are within the reach of those who are in such an occupation. This does not require that tests of scientific minuteness and elaborateness shall be employed, but only such in- vestigation as is practicable in, and consistent with, the pursuit of the occupation of a public carrier. The rule, however, does render a carrier liable where tests which are practicable are not employed, and that which is in use could not discover a defect which the others might. 60 These tests are to be applied not only at the time when the machinery is put into ser- vice, but at all practicable times during its continued use. 61 The fact that frequent and sufficient inspec- tions had been made and a defect not discovered will relieve the carrier from liability under most circum- stances, 62 but the fact of inspections at regular sta- tions does not relieve the train operatives from all duty to watch the cars to discover any defects be- tween such stations as will render the cars dangerous to the passengers. 63 Again, the carrier is bound to adopt all devices which are practicable from a pecuniary as well as a utilitarian standpoint, which materially diminish 60 Texas etc. Ry. Co. v. Hamilton, 66 Tex. 92, 17 S. W. 406. 61 Prink v. Patter, 17 111. 406; Stevens v. European etc. Ry. Co., 66 Me. 74; Sharp v. Kansas etc. Ry. Co., 114 Mo. 94, 20 S. W. 93; Palmer v. Delaware H. C. Co., 120 N. Y. 170, 17 Am. St. Rep. 629, 24 N. E. 302; Wynn v. Central Park etc. R. R. Co., 14 N. Y. Supp. 172, 38 N. Y. St. Rep. 181, affirmed, 133 N. Y. 575, 30 N. E. 721. 62 Grand Rapids etc. R. Co. v. Boyd, 65 Ind. 526; Meier v. Pennsylvania R. Co., 64 Pa. 225, 3 Am. Rep. 581; Texas etc. Ry. Co. v. Buckalen (Tex. Civ. App.), 34 S. W. 165. 63 Texas etc. Ry. Co. v. Suggs, 62 Tex. 323. 683 INJURY TO RIGHT OF PERSONAL SECURITY. § 343 the dangers incident to the mode of transportation employed. 64 § 343. Same Continued— When the Fault is That of an Independent Contractor. — A very nice question which has received considerable discussion in text-books and cases is as to the liability of the carrier for the negligence of an independent manufacturer from whom its vehicle and machinery has been obtained. Can the carrier be held for an injury which results from defects which could have been discovered by the use of due diligence and practicable tests on the part of the independent manufacturer during the construction of the vehicle, but which the applica- tion of all tests practicable to the carrier after the construction would not disclose? An affirmative answer to this question is given by the majority of cases in this country and in England. Probably the leading case is Hegeman v. Western R. E. Co., 16 Barb. (N. Y.) 353. Here the injury resulted from a broken axle in which was a fire crack which could have been detected by the manufacturer. The courts say that "the defendants were responsible for this defect to the same extent as if the axle had been manufactured by themselves." The carrier was lia- ble if the defect "could have been discovered upon a vigilant examination by a person of competent skill, either at the time of construction or afterward." This decision is followed by many others in the other 64 Treadwell v. Whittier, 80 Cal. 574, 13 Am. St. Rep. 175, 22 Pac. 266; Caldwell v. New Jersey S. B. Co., 47 N. Y. 282; Louisville etc. R. Co. v. Jones, 83 Ala. 376, 3 South. 902; Steinweg v. Erie R. Co., 43 N. Y. 123, 3 Am. Rep. 673; Nashville etc. R. Co. v. Messino, 1 Sneed, 220; Kansas Pac. R. Co. v. Miller, 2 Colo. 442; Baltimore etc. R. Co. v. State, 29 Md. 252, 96 Am. Dec. 528; Toledo etc. R. Co. v. Conroy, 68 111. 560; Meier v. Pennsylvania R. Co., 64 Pa. St. 225, 3 Am. Rep. 581: Bridger v. Ashville etc. R. Co., 25 S. C. 24. § 344 BY COMMON CARRIERS. 684 states 65 and in England. 66 On the other side, it is held that all that is required of carriers is that they "purchase such cars and other necessaries as they have reason to believe will be safe and proper, giving them such inspection as is usual and practicable as they buy them. When they make such an examination and discover no defects, they do all that is practica- ble, and it is no neglect to omit attempting what is impracticable." 67 The same question hag been dis- cussed at another place with respect to the use of dangerous agencies. 68 § 344. Duties and Liabilities in the Operation of Vehicles and Machinery. — Beside the duty of care in the construction and maintenance of its conveyances, the carrier must use the greatest care in the opera- tion of its vehicles and machinery. It is apparent that a passenger is subject to very slight danger from cars or conveyances which are standing at rest and not in motion, and that it is from those in motion that danger is to be feared. So it is evident that as this is the means by which the car- rier's tracks, and all its facilities are rendered dan- gerous to its passengers, in the operation of them, the greatest care must be used. "A railroad com- pany is liable for injury to passenger by misplace- ment of switch constituting part of its road, by the negligence of the servant of another company con- necting with such road, by whom such switch is pro- 65 Treadwell v. Whittier, 80 Cal. 574, 13 Am. St. Rep. 175, 22 Pac. 266; Palmer v. President of Delaware Canal Co., 120 N. Y. 170, 17 Am. St. Rep. 629, 24 N. E. 302; Pittsburg etc.- R. Co. v. Nelson, 51 Lad. 150; Illinois etc. R. R. Co. v. Phillips, 49 111. 234. 66 Francis v. Cockrell, L. R. 5 Q. B. 184; Pyne v. Railway Co., 2 Post. & F. 619. 67 Grand Rapids etc. R. R. Co. v. Huntley, 38 Mich. 537, 31 Am. Rep. 321. 68 Ante, sec. 341. C85 INJURY TO RIGHT OF PERSONAL SECURITY. § 345 vided." 69 Thus, for a stage-driver to allow his horses to run away while passengers are in the coach is neg- ligence. 70 If the coach upsets through overload- ing, 71 or through the horses running away, 72 it is evi- dence of negligence. In the operation of railroads and street-cars the carrier must exercise due care to avoid injury to its passengers through sudden jerks or starting before passengers have had reasonable opportunity to ac- quire an equilibrium or become seated without warn- ing, 73 or collisions with other conveyances of the same carrier, 74 or with vehicles belonging to another, 75 or with passing trains, 76 or with animals. 77 § 345. Liability of Carrier to Free Passenger.— The question of the liability of carriers of passengers to free passengers, i. e., those riding on a pass, has been 69 McElroy v. Nashua etc. R. R. Co., 4 Cush. 400, 50 Am. Dec. 794. 70 Gallagher v. Bowie, 66 Tex. 265, 17 S. W. 407; Parish v. Reigle, 11 Gratt. 697, 62 Am. Dec. 666. 71 Derwort v. Loomer, 21 Conn. 245. 72 Farish v. Reigle, 11 Gratt. 697, 62 Am. Dec. 666. 73 Bartholemew v. New York Central etc. R. R. Co., 102 N. Y. 716, 7 N. E. 623; Smith v. Chicago etc. R. Co., 108 Mo. 243, 18 S. W. 971; Quackenbush v. Chicago etc. Ry. Co., 73 Iowa, 458, 35 N. W. 523. 74 Gardner v. Waycross Air Line R. Co., 94 Ga. 538, 19 S. E. 757; West Chicago St. R. Co. v. Martin, 47 111. App. 616; Chicago City Ry. Co. v. Rood, 62 111. App. 550; Louisville etc. N. R. Co. v. Long, 94 Ky. 410, 22 S. W. 747. 75 Central Pass. Ry. Co. v. Kuhn, 86 Ky. 578, 9 Am. St. Rep. 309, 6 S. W. 441; Clark v. Chicago etc. R. Co., 127 Mo. 197, 29 S. W. 1013; Coddington v. Brooklyn Crosstown R. Co., 102 N. Y. 66, 5 N. E. 797. 76 Chicago City Ry. Co. v. Rood, 62 111. App. 550; Devlin v. At- lantic Ave. R. Co., 57 Hun, 591, 10 N. Y. Supp. 848; Heucke v. Milwaukee City Ry. Co., 69 Wis. 401, 34 N. W. 2*3. 77 Fordyce v. Jackson, 56 Ark. 594, 20 S. W. 528, 597; Brown v New York Cent. R. Co., 34 N. Y. 404; Mexican Cent. Ry. Co. v. Lauricella, 87 Tex. 277, 47 Am. St. Rep. 103, 28 S. W. 277. § 345 BY COMMON CARRIERS. 686 before the courts many times, and while there is some diversity of judicial opinion, it is not a difficult mat- ter to determine how the courts, in the states where the question has been up, stand ; nor is there any diffi- culty in our opinion in solving the problem from the standpoint of reason. In England, contracts made between the carrier and a free passenger by which the former should be relieved of any and all liability on account of neglect were upheld as valid. 78 And this rule has been followed and adopted in some of the states in this country. 79 But the rule generally adopted by the weight of authority is that a common carrier cannot stipulate for exemption from liability in such cases, especially where the person riding on a pass is an employee, or a person making shipments over the road, or a mail agent or express messenger. It is considered that the carrier is under the same obligations as to care and vigilance to a passenger to whom a pass is giveD as he is to a passenger for hire, and a stipulation against his own negligence is con- trary to public policy and void. This is applying the same rule to both carriers of goods and passeagers. One court stating the reasons underlying it said: "There are two distinct considerations upon which the stringent rule as to the duty and liability of car- riers of passengers rests. One is the regard for the 78 McCawley v. Furness R. Co., L. R. 8 Q. B. 57; Hall v. N. East R. Co., L. R. 10 Q. B. 437; Alexander v. Toronto etc. R. Co., 33 U. C. 474. 79 Kinney v. Central R. R. Co., 34 N. J. L. 513, 3 Am. Rep. 265; Grlswold v. New York etc. R. R. Co., 53 Conn. 371, 55 Am. Rep. 115; Welles v. New York Cent. R. Co., 26 Barb. 641; Perkins v. New York Cent. R. R. Co., 24 N. Y. 196, 82 Am. Dec. 281; Poucher v. New York C. R. R. Co., 49 N. Y. 263, 10 Am. Rep. 364, note giving ex- tensive review of the question and the cases; Western etc. R. R. Co. v. Bishop, 50 Ga. 465; Ulrich v. New York etc. R. R. Co., 108 N. Y. 80, 2 Am. St. Rep. 36S, 15 N. E. 60; Bissell v. Michigan etc. R. R. Co., 22 N. Y. 258. 687 INJURY TO RIGHT OF PERSONAL SECURITY. § 345 safety of the passenger on Ms own account, and the other is a regard for his safety as a citizen of the state. The latter is a consideration of public policy growing out of the interest which the state or govern- ment as parens patriae has in protecting the lives and limbs of its subjects So far as the considera- tion of public policy is concerned, it cannot be over- ridden by any stipulation of the parties to the con- tract of passenger carriage, since it is paramount from its very nature. No stipulation in disregard of it, or involving its sacrifice in any degree, can then be per- mitted to stand. Whether the case be one of a pas- senger for hire, a merely gratuitous passenger, or of a passenger upon a conditioned free pass, .... the interest of the state in the safety of the citizen is ob- viously the same. The more stringent the rule as to the duty and liability of the carrier, and the more rig- idly it is enforced, the greater will be the care exer- cised, and the more approximately perfect the safety of the passenger. Any relaxation of the rule as to duty or liability naturally, and it may be said inev- itably, tends to bring about a corresponding relaxa- tion of care and diligence upon the part of the car- rier." Other reasons for the rule of responsibility are that the free passenger is a passenger the same as any other, and he is so by invitation of the carrier, and the same care is due him as is to pay passengers. 80 Then, in the case of persons who receive passes in consideration of shipments made over a line of rail- way, or by virtue of contracts for other service, such as the carriage of express or mail, or in the case of rail- way employees, there is sufficient consideration to re- quire the application of the ordinary rule of care. In all such cases the greater bulk of authority holds the so See cases cited, note 81, post. § 345 BY COMMON CARRIERS. 688 carrier responsible for any injury occurring through its fault. Having stated the general principles, rep- resentative cases from the different states are cited without further particular comment. 81 In the ab- 81 Illinois Cent. R. R. Co. v. O'Keefe, 168 111. 115, 48 N. E. 294, 61 Am. St. Rep. 68, and extensive note, pp. 75-104 — "Passengers, Who are, and When They Become Such," including "Free Passen- gers," p. 87, "Free Passes," p. 88, "Drover's Pass," p. 89; Rail- road v. Lockwood, 17 Wall. 357; State v. Western R. R. Co., 63 Md. 433 (employee); Doyle v. Fitchburg etc. R. R. Co., 162 Mass. 66, 44 Am. St. Rep. 335, 37 N. E. 770; Rose v. Des Moines Valley R. R. Co., 39 Iowa, 246; Railway Co. v. Wynn, 88 Tenn. 320, 14 S. W. 311; Annas v. M. & N. R. R. Co., 67 Wis. 46, 58 Am. Rep. 848, 30 N. W. 282; Gillenwater v. M. & I. R. R. Co., 5 Ind. 339, 61 Am. Dec. 101; Ohio etc. Ry. Co. v. Selby, 47 Ind. 471, 17 Am. Rep. 719; Williams v. Oregon Short Line R. R. Co., 18 Utah, 210, 72 Am. St. Rep. 777, 54 Pac. 991; Maslin v. Baltimore etc. R. R. Co., 14 W. Va. 180, 35 Am. Rep. 748; Cleveland etc. R. R. Co. v. Curran, 19 Ohio St. 1, 2 Am. Rep. 362 (drover's pass); Pennsylvania R. R. Co. v. Henderson, 51 Pa. St. 315; Missouri Pac. Ry. Co. v. Ivy, 71 Tex. 409, 10 Am. St. Rep. 758, 9 S. W. 346 (drover's pass); Gulf etc. R. R. v. McGown, 65 Tex. 640 (passenger); Jacobus v. St. Paul etc. Ry. Co., 20 Minn. 125, 18 Am. Rep. 360; Louisville etc. Ry. Co. v. Taylor, 126 Ind. 126, 25 N. E. 869; Olson v. St. Paul R. R. Co, 45 Minn. 536, 22 Am. St. Rep. 749, 48 N. W. 445 (drover's pass); Griffith v. Missouri Pac. Ry. Co., 98 Mo. 168, 11 S. W. 559 (drover's pass); Lemon v. Chanslor, 68 Mo. 340, 30 Am. Rep. 799; Washburn v. Nashville etc. R. R., 3 Head, 638, 75 Am. Dec. 784; Thompson v. Yazoo etc. R. R. Co., 47 La. Ann. 1107, 17 South. 503; Lawson v. Chicago etc. Ry. Co., 64 Wis. 447, 54 Am. Rep. 634, 24 N. W. 618; Little Rock etc. Ry. v. Miles, 40 Ark. 298, 48 Am. Rep. 10; Mc- Nulty v. Pennsylvania R. Co., 182 Pa. St. 471, 61 Am. St. Rep. 721, 38 Atl. 524 (employee); Denver etc. R. Co. v. Dwyer, 20 Colo. 132, 36 Pac. 1106; Flint etc. R. R. Co. v. Weir, 37 Mich. Ill, 26 Am. Rep. 499; Cleveland etc. Ry. v. Ketchem, 133 Ind. 346, 36 Am. St. Rep. 550, 33 N. E. 116 (postal clerk); Blair v. Erie R. W. Co., 66 N. Y. 313, 23 Am. Rep. 55 (messengers or agents of express com- pany); Mellor v. Missouri Pac. Ry., 105 Mo. 455, 16 S. W. 849 (postal clerk); Boston etc. R. R. v. State, 72 Md. 36, 20 Am. St. Rep. 454, 18 Atl. 1107 (postal clerk); Magoffin v. Missouri Pac. R. Co., 102 Mo. 540, 22 Am. St. Rep. 798, 15 S. W. 76 (express mes- sengers); Nolton v. Western R. R. Co., 15 N. Y. 444, 69 Am. Dec. 623 (mail agent); 2 Thompson on Negligence, sees. 2646, 2617; Rus- sell v. Pittsburgh etc. Ry. Co., 157 Ind. 305, 87 Am. St. Rep. 214, 61 N. E. 678 (employee of sleeping-car company). 689 INJURY TO RIGHT OF PERSONAL SECURITY. § 346 sence of any special contract or stipulation, the car- rier is bound to exercise the same degree of care toward a free passenger as toward a passenger for hire. 82 § 346. The Ticket— Its Legal Aspect.— That a con- tract is made between carrier and passenger when the latter purchases of the former a ticket, there is no question. That the terms of this contract are as clear and definite as if reduced to writing is also true. But as to what constitutes the contract is a question upon which much has been said, and about which there is diversity of opinion. It is of prime impor- tance in all controversies relating to expulsion of passengers. In legal contemplation it resembles the contract of indorsement in the law of negotiable in- struments. There a signature merely is placed upon the back of an instrument to which is attached cer- tain well-defined obligations, which are not ex- pressed, but which are imposed by law. So when the passenger purchases a ticket from a common carrier entitling him to ride from one place to another, a con- tract is made by which the carrier undertakes to carry the person. The whole transaction constitutes the contract. The early tendency of our courts was not to regard the ticket as a contract between the parties unless made so by express agreement It is considered by many very respectable authorities as of the nature of a receipt for the passage money, or a token, the purpose of which is to enable the carrier to recognize the bearer as the person entitled to be carried. As stated by one court: "Such tickets are evidence of the payment of fare, and the right of the holder or party named, .... to be carried accord- 82 Quimby v. Boston etc., 150 Mass. 365, 23 N. E. 205; Rogers t. Kennebec Steamboat Co., 86 Me. 261, 29 Atl. 1069. Torts, Vol. 1-^4 S 346 BY COMMON CARRIERS. 690 ing to its terms. So far as they are expressed, the terms are binding, of course, but such tickets are not the whole contract, which must be gathered, so far as not expressed, from the rules and regulations of the company." 83 Very many authorities cited in the note sustain this view. 84 The rule adopted by other courts in recent cases is that the ticket does consti- tute a contract between the purchaser and the rail- road company. The ordinary ticket entitling the holder to passage embraces within its terms the duty which the law imposes upon the carrier to accept and carry, and general rules and regulations of the car- rier, and the payment and acceptance of the fare nec- essary to entitle the purchaser to be carried, are all elements and ingredient parts of the contract evi- denced by the ticket issued by the carrier to the pas- senger. Some of the modern railroad tickets are quite different from the earlier ones. They contain the rules and regulations under which the ticket is issued, and in many cases the purchaser is required to sign the ticket when he buys it. They then become the writ- ten contract between the parties. Aside from the fact that a passenger may sign a ticket, the authorities, as well as reason, show that the company must make its own regulations, and that persons purchase tick- ets subject to these rules, and that it does not lie on the company to bring home notice of them in order 83 Dietrich v. Pennsylvania St. R. R. Co., 71 Pa. St. 432, 10 Am. Rep. 711. 84 Id.; Johnson v. Concord R. R. Co., 46 N. H. 213, 88 Am. Dec. 199; Cleveland etc. R. R. Co. y. Bartram, 11 Ohio St. 457; Boyd v. Spencer, 103 Ga. 828, 68 Am. St. Rep. 146, 30 S. E. 841; Quimby v. Vanderbilt, 17 N. Y. 306, 72 Am. Dec. 469; Burdick v. People, 149 111. 600, 41 Am. St. Rep. 329, 36 N. E. 948; Kent v. Baltimore etc. R. R. Co., 45 Ohio St. 284, 4 Am. St. Rep. 539, 12 N. E. 798; Raw- son v. Pennsylvania R. R. Co., 48 N. Y. 212, 8 Am. Rep. 543 (opinion); Johnson v. Concord R. R. Co., 46 N. H. 213, 88 Am. Dec. 199. 691 INJURY TO RIGHT OF PERSONAL SECURITY. § 346 to establish the terms of the contract of carriage. The ticket is evidence of the terms and regulations upon which the company agrees to carry, and when the passenger has accepted the ticket, he is bound by its terms as much as if he had, by formal agreement, entered into a contract with the company. "The cus- tom of railroads to use tickets which entitle the holder, except in special cases, to be carried upon the terms designated thereon, has become so much a part of the business itself as to be recognized as part of the law of the land. The purchaser of a ticket does not, ordinarily, enter into special negotiations by which the carrier undertakes to carry him, for the custom established by the carrier and those doing business with him has fixed the terms upon which he may be carried, and, if he accepts a ticket limiting the time within which he may use it for passage, or des- ignating the train upon which it shall be used, he is bound thereby. This custom is established, and all seeking transportation are bound to take notice of it." This appears to be the modern view of the ques- tion, and is supported, directly and indirectly, by a number of cases. 85 Upon the question as to whether or not the ticket is to be considered as a contract, or whether a contractual relation exists between passen- 85 Callaway v. Mellett, 15 Ind. App. 366, 57 Am. St Rep. 238, 44 N. E. 198; Sleeper v. Pennsylvania R. R. Co., 100 Pa. St. 259, 45 Am. Rep. 380 (indirectly); Terre Haute etc. R. R. Co. v. Fitz- gerald, 47 Ind. 79; Boylan v. Hot Springs R. R. Co., 132 U. S. 146, 10 Sup. Ct. Rep. 50; Southern Ry. Co. v. Barlow, 104 Ga. 213, 69 Am. St. Rep. 166, 30 S. E. 732; Fonseca v. Cunard S. S. Co., 153 Mass. 553, 25 Am. St Rep. 660, 27 N. E. 665 (bound by regula- tions, whether passenger reads them or not); Pennington v. Phila- delphia etc. R. R. Co.; 62 Md. 95 (a contract when sold' at- reduced fare); Thompson v. Truesdale, 61 Minn. 129, 52 Am. St. Rep. 579, 63 N. W. 259; Krueger v. Chicago etc. Ry. Co., 68 Minn. 445, 64 Am. St. Rep. 487, 71 N. W. 683; Rahilly v. St. Paul etc. Ry. Co., 66 Minn. 153, 68 N. W. 853; Walker v. Price, 62 Kan. 327, 84 Am. St. Rep. 392, 62 Pac. 1001. g 346 BY COMMON CARRIERS. 6S2 ger and carrier, or whether there is a violation of a personal right independent of contract in case of ex- pulsion, depends the form of the action, and, perhaps, also the force and effect of the rules and regulations made by the carrier. There is considerable confusion and conflict upon both questions. The following seems to be a correct solution of the matter. The cause of action may sound in tort or contract. A right of action may arise according to circumstances, either upon the contract as expressly made according to the terms of the ticket, or as actually made when there is a mistake in the ticket. In the following cases the action was treated as one in contract. 88 "Where the plaintiff [passenger] has a contract with the defendant [carrier], which generates a relation attended with a public duty, he has the option to bring assumpsit for breach of the contract, or case for breach of the duty." The contract may be set out merely as inducement, "with a view to raise the re- lation, the stress of the action being put upon his ex- pulsion from the train, which, if wrongful, was not only a breach of the contract, but a violation of a public duty by a common carrier." 8T So a right of action in tort for the violation of a per- sonal right to ride upon the train is recognized, upon the theory that as between carrier and passenger, the law imposes a duty upon the carrier independent, 86 Frederick v. Marquette etc. R. R. Co., 37 Mich. 342, 26 Am. Rep. 531; Dietrich v. Pennsylvania R. R. Co., 71 Pa. St. 432, 10 Am. Rep. 711; St. Louis etc. Ry. v. Mackie, 71 Tex. 491, 10 Am. St. Rep. 766, S. W. 451; Kansas. City etc. Ry. v. Riley, 68 Miss. 765, 24 Am. St. Rep. 309, 9 South. 443 (appears to be upon contract, though not clear from the report) ; Georgia R. & B. Co. v. Dougherty, 86 Ga. 744, 22 Am. St. Rep. 499, 12 S. B. 747; McKay v. Ohio etc. R. R. Co., 34 W. Va. 65, 26 Am. St. Rep. 913, 11 S. E. 737 (there may be a breach of contract where there is a mistake in ticket). 87 Head v. Georgia Pac. Ry. Co., 79 Ga. 358, 11 Am. St. Rep. 434, 7 S. B. 217. 693 INJURY TO RIGHT OF PERSONAL SECURITY. § 347 in a sense, of their contractual relations, although in- cidental thereto, but which has its basis in the regard the law has for human life and personal security. 88 In some cases where the passenger is given a wrong ticket it is insisted that the action is tort rather than contract. 89 The wrongful expulsion may be considered an assault and the action maintained upon that theory, and in assessing damages the an- noyance, vexation and indignity suffered by the pas- senger may be considered. 90 § 347. Same Continued— Effect of Conditions on Ticket. — The courts which have adopted the rule that the ticket is not a contract, but only as evidence of the payment of fare, also hold that a purchaser does not, by the mere acceptance of a ticket, acquiesce in and bind himself by all the terms and conditions printed thereon, in the absence of actual knowledge of them. 91 Many of the authorities sustaining this 88 Chicago etc. R. R. Co. v. Graham, 3 Ind. App. 28, 50 Am. St. Rep. 256, 29 N. E. 170; Lake Shore etc. R. R. Co. v. Orndorff, 55 Ohio St. 589, 60 Am. St. Rep. 716, 45 N. E. 447; Louisville etc. Ry. Co. v. Frawley, 110 Ind. 18, 9 N. E. 594; Carroll v. Staten Island R. R. Co., 58 N. Y. 126, 17 Am. Rep. 221; Hot Springs R. R. Co. v. Deloney, 65 Ark. 177, 67 Am. St. Rep. 913, 45 S. W. 351 (case treated as a tort); Gorman v. Southern Pac. Co., 97 Cal. 1, 33 Am. St. Rep. 157, 31 Pac. 1112. 89 Louisville etc. R. R. Co. v. Gaines, 99 Ky. 411, 59 Am. St. Rep. 465, 36 S. W. 174; McKay v. Ohio River R. R. Co., 34 W. Va. 65, 26 Am. St. Rep. 913, 11 S. E. 737. 90 Carsten v. Northern Pac. R. R. Co., 44 Minn. 454, 20 Am. Rep. 589, 47 N. W. 49; Chicago etc. R. R. Co. v. Flagg, 43 111. 364, 92 Am. Dec. 133. 91 Baltimore etc. R. R. Co. v. Campbell, 36 Ohio St. 647, 38 Am. Rep. 617; Kent v. Baltimore etc. R. R. Co., 45 Ohio St. 284, 4 Am. St. Rep. 539, 12 N. E. 798; Rawson v. Pennsylvania R. R. Co., 48 N. Y. 212, 8 Am. Rep. 543; Malone v. Boston etc. R. R. Co., 12 Gray, 388, 74 Am. Dec. 598; Camden etc. R. R. Co. v. BalTIauf, 16 Pa. St. 67, 55 Am. Dec. 481; Railroad v. Turner, 100 Tenn. 213, 47 S. W. 223; Boyd v. Spencer, 103 Ga. 828, 68 Am. St. Rep. 14G, 30 S. E. 841; Blossom v. Dodd, 43 N. Y. 264, 3 Am. Rep. 709. § 347 BY COMMON CARRIERS. 694 rule do so upon the theory that there is nothing in the circumstance that a ticket is sold at a reduced rate. 02 The weight of authority and the better rea- son, as it appears to the writer, is that whenever tickets are sold at reduced rates, the purchaser is bound to inform himself as to the terms and condi- tions upon which they are sold, and that he is bound by all limitations contained therein, because in such cases clearly the ticket constitutes the written con- tract between carrier and passenger, and all rights and obligations of each party are determined there- by. 93 This doctrine has been applied to excursion tickets, mileage tickets, passes, etc. 94 These tickets as they are now being issued are required to be signed by the purchaser at the time of purchase and at the time of using the same for return passage, and in case of mileage tickets, whenever they are used. In such cases there can be no possible doubt but that the ticket constitutes a contract, and the rights and obligations of the respective parties are determined or governed by the terms and conditions of the: con- 92 Id. 93 Dangerfield v. Atcheson etc. Ry. Co., 62 Kan. 85, 61 Pac. 405; Chicago etc. v. Graham, 3 Ind. App. 28, 50 Am. St. Rep. 256, 29 N. B. 170; Walker v. Price, 62 Kan. 327, 62 Pac. 1001, 84 Am. St. Rep. 392, and excellent note on the subject; St. Louis etc. Ry. v. Weak- ley, 50 Ark. 397, 7 Am. St. Rep. 104, 8 S. W. 134; Quimby v. Boston etc. R. R. Co., 150 Mass. 365, 23 N. E. 205; Abram v. Gulf etc. Ry. Co., 83 Tex. 61, 18 S. W. 321; Drummond v. Southern etc. R. R., 7 Utah, 118, 25 Pac. 733; Rahilly v. St. Paul etc. R. R. Co., 66 Minn. 153, 68 N. W. 853; Gregory t. Burlington etc. R. R. Co., 10 Neb. 250, 14 N. W. 1025; Bissell v. New York etc. R. R. Co., 25 N. Y. 442, 82 Am. Dec. 369; Kimball v. Rutland etc. R. R. Co., 26 Vt. 247, 62 Am. Dec. 567; Edwards v. L. S. etc. R. R. Co., 81 Mich. 364, 21 Am. St. Rep. 527, 45 N. W. 827; Comer v. Foley, 98 Ga. 678, 25 S. E. 671; Coburn v. Morgan's R. R. Co., 105 La. 398, 83 Am. St. Rep. 242, 29 South. 882; Norfolk etc. R. R. Co. v. Ander- son, 90 Va. 1, 44 Am. St. Rep. 884, 17 S. E. 757. 94 Id. 695 INJURY TO RIGHT OF PERSONAL SECURITY. § 348 tract. The purchaser, then, whenever he does not comply with the terms upon which the ticket is is- sued to him, may be rightfully ejected. So if the purchaser does not sign the ticket and have the same stamped by the agent upon taking the return pas- sage, he cannot complain if ejected. 95 And so if a mileage ticket is not signed properly, or if anyone but the original purchaser uses it, he may be ejected. 96 The question as to whether a passenger is bound by limitations or conditions in tickets for which full fare has been paid is a more troublesome one, and we find stubborn conflict with respect to the same, some courts adhering to the rule that in such cases the conditions and limitations are not binding upon the purchaser, 97 while other authorities are to the effect that reasonable limitations, even in cases of the is- suance of ordinary full fare tickets, are binding upon the purchaser. 98 Courts will give to tickets a con- struction most favorable to the passenger, and will look with disfavor on a construction which will work a forfeiture of the transportation purchased. 99 § 348. Collisions — Derailments — Presumption of Negligence from. — The rule is well settled that where injury is sustained by a passenger by the breaking down of a carriage, or by the running off of a train, 95 Edwards v. Lake Shore etc. R. R. Co., 81 Mich. 364, 21 Am. St. Rep. 527, 45 N. W. 827; Western etc. R. R. Co. v. Stocksdale, 83 Md. 245, 34 Atl. 880; Bowers v. Pittsburgh R. R. Co., 158 Pa. St. 302, 27 Atl. 893. 96 Rahilly v. St. Paul etc. R. R. Co., 66 Minn. 153, 68 N. W. 853. 97 Boyd v. Spencer, 103 Ga. 828, 68 Am. St. Rep. 146, 30 S. E. 841; Railroad v. Turner, 100 Tenn. 213, 47 S. W. 223. 98 Coburn v. Morgans Louisiana etc. R. R. Co., 105 La. 398, 83 Am. St. Rep. 242, 29 South. 882; Hanlon v. Illinois Cent R. R. Co., 109 Iowa, 136, 80 N. W. 223. 99 Cleveland etc. Ry. Co. v. Kinsley, 27 Ind. App. 135, 87 Am, St. Rep. 245, 60 N. E. 169. 8 349 BY COMMON CARRIERS. 686 or by the spreading of the rails, or by a collision between two trains, the very nature of the occur- rence is prima facie evidence of the negligence of a railway company. 100 It is a reasonable and sound doctrine that when a passenger is injured by an ac- cident, such as the derailment of a train at a place where the track and train are entirely under the control of the company — that is, where they are not interfered with by any extraneous force — a presump- tion of negligence arises, and that in order for the company to exonerate itself from liability for the injury, it must adduce evidence to show that the ac- cident could not have been avoided by the exercise of the utmost care and foresight reasonably com- patible with a prosecution of its business. 101 § 349. Collisions Through Neglect of Different Car- riers. — Collisions between' vehicles in which a pas- senger may be riding may result through the negli- gence of the carrier whose passenger the injured is, or by the negligence of the other carrier, or by con- current neglect of both. That the carrier guilty of negligence may be held liable there is no doubt. But when it comes to the question of holding the second carrier responsible in damages when the in- jury is the result of the concurrent act of bo,th car- riers, the courts have been somewhat at variance. On the on© hand, it has been held that the passenger is identified with his carrier, and its negligence is im- 100 Mexican Central Ry. Co. v. Lauricella, 87 Tex. 277, 47 Am. St. Rep. 103, 28 S. W. 277 (derailment); Feital v. Middlesex R. R. Co., 109 Mass. 398, 12 Am. Rep. 720 (derailment); Curtis v. Rochester etc. R. R. Co., 18 N. Y. 534, 75 Am. Dec. 258 (derailment); George v. St Louis etc. Ry. Co., 34 Ark. 613; Chicago etc. R. R. Co. v. George, 19 111. 510, 71 Am. D.ec. 239 (collision); Turtle v. Chicago etc. Ry. Co., 48 Iowa, 236; Iron R. R. Co. v. Mowery, 36 Ohio St. 418, 38 Am. Rep. 597 (collision). ioi Id. 607 INJURY TO RIGHT OF PERSONAL SECURITY. § 330 puted to him. As the consequence of this view the passenger is precluded from recovery from the second carrier. 102 On the other hand, the great weight, and among the late cases, the unanimous weight, of authority, is that the negligence of the passenger's carrier is not to be imputed to him, so that where he is injured by a negligent collision of his train with that of another company, he may maintain an action against either company. 103 As examples, re- coveries have been granted from the second carrier when the collision was between two railroads, 104 a railroad and a street-car, 105 and a railroad and hack line, 106 or between two vessels on the water. 107 § 350. Discharging Passengers. — As in the act of receiving passengers, the highest standard of caution and diligence must be exercised to give the passen- gers reasonable time to board the vehicle, 108 so in 102 Lockhardt v. Lichtenthaler, 46 Pa. St. 151; Thorogood v. Bryan, 8 Com. B. 115; Danville etc. Turnpike Co. v. Stewart, 2 Met. (Ky.) 119. 103 Wabash etc. Ry. Co. v. Shacklet, 105 111. 364, 44 Am. Rep. 791; Cuddy v. Horn, 46 Mich. 596, 41 Am. Rep. 178, 10 N. W. 32; Transfer Co. v. Kelly, 36 Ohio St. 86, 38 Am. Rep. 558; Dyer v. Erie Ry. Co., 71 N. Y. 288; Bennett v. New Jersey R. R. Co., 36 N. J. L. 225, 13 Am. Rep. 435; Prideaux v. City of Mineral Point, 43 Wis. 513, 28 Am. Rep. 558; Ricker v. Freeman, 50 N. H. 420, 9 Am. Rep. 267; Bunting v. Hogsett, 139 Pa. St. 363, 23 Am. St. Rep. 192, 21 Atl. 31, 33, 34; Flaherty v. Minneapolis etc. Ry. Co., 39 Minn. 328^ 12 Am. St. Rep. 654, 40 N. W. 160. 104 Id.; Eaton v. Boston etc. R. Co., 11 Allen, 500, 87 Am. Dec. 730; Colegrove v. New York etc. R. R. Co., 20 N. Y. 492, 75 Am. Dec. 418. 105 Bennett v. New Jersey etc. R. Co., 36 N. J. L. 225, 13 Am. Rep. 435; O'Toole v. Pittsburgh etc. R. R. Co., 158 Pa. St. 99, 38 Am. St. Rep. 830, 27 Atl. 737. 106 New York etc. Ry. Co. v. Steinbrenner, 47 N. J. L. 161, 54 Am. Rep. 126; Transfer Co. v. Kelly, 36 Ohio St. 86, 38 Am. Rep. 558. 107 Cuddy v. Horn, 46 Mich. 596, 41 Am. Rep. 178, 10 N. W. 32. 108 Ante, sec. 339. § 351 BY COMMON CARRIERS. 698 discharging them the carrier must use due care to allow the passengers to alight from its vehicle. Thus, a reasonable time must be allowed for all pas- sengers who are to leave the cars at any point to alight there, 109 or to make a sudden start before the passenger has alighted from cars which are stand- ing still, 110 or in motion. 111 In the latter case, how- ever, the contributory negligence of the passenger in attempting to alight from a moving car may de- feat his recovery. Such acts constitute a defense only when under all the circumstances it is impru- dent to alight. 112 § 351. Respective Liabilities of Lessor and Lessee Railroad Companies, or of Roads Crossing Each Other — Railroad companies have frequent occasion to grant to another company the right to use a portion of their tracks for the operation of such other road; or two roads may by agreement make a traffic arrange- ment for one road to cross the other. Statutes gen- erally require that when one road crosses another, they shall use and maintain jointly an interlocking 109 Louisville etc. R. R. Co. v. Crunk, 119 Ind. .542, 12 Am. St. Rep. 443, 21 N. B. 31; Pennsylvania R. R. Co. v. Kilgore, 32 Pa. St. 292, 72 Am. Dec. 787; St. Louis etc. Ry. Co. v. Person, 49 Ark. 182, 4 S. W. 755; Hurt v. St. Louis etc. Ry. Co., 94 Mo. 255, 4 Am. St. Rep. 374, 7 S. W. 1; Fairmount etc. Ry. Co. v. Stutler, 54 Pa. St. 375, 93 Am. Dec. 714. no Cases supra. in Brashear v. Houston etc. R. R. Co., 47 La. Ann. 735, 49 Am. St. Rep. 382, 17 South. 260; Nance v. Carolina etc. R. R. Co., 94 N. C. 619. 112 Filer v. New York etc. R. R. Co., 49 N. Y. 47, 10 Am. Rep. 327; Cincinnati etc. R. R. Co. v. Carper, 112 Ind. 26, 2 Am. St. Rep. 144, 13 N. E. 122, 14 N. E. 352; Louisville etc. R. R. Co. v. Crunk, 119 Ind. 542, 12 Am. St. Rep. 443, 21 N. E. 31; Lawrence v. Green, 70 Cal. 417, 59 Am. Rep. 428, 11 Pac. 750; Doss v. Missouri etc. R. R. Co., 59 Mo. 27, 21 Am. Rep. 371; Pennsylvania R. R. Co. v. Lyons, 129 Pa. St. 113, 15 Am. St. Rep. 701, 18 Atl. 759; New York etc. R. R. Co. v. Coulbourn, 69 Md. 360, 9 Am. St Rep. 430, 16 Atl. 208. 699 INJURY TO RIGHT OF PERSONAL SECURITY. § 351 switch or a derailing device, though this does not forbid a contract arrangement between the two for the maintenance of the same by the one. In either of the above cases an interesting and important question is presented as to the relation of the servants of the road maintaining the switch, or the relation which the servants of the lessor or lessee road sustain to the other, and the effect of such relation and such contract upon the rights of passen- gers or employees who may be injured through their neglect. One fundamental principle lies at the base of the question, viz.: a railroad company cannot absolve itself or transfer its duties and obligations to an- other by contract, so as to relieve itself from re- sponsibility to a passenger who is injured through the neglect of duties on the part of the servants of the road to which these duties are so transferred by contract. To make it clearer, if a passenger of the lessor road is injured by the neglect of the lessee road whose servants are intrusted by contract with duties owing and for the benefit of both roads, the lessor is not relieved, such servants being, in the per- formance of these duties, the servants of both roads. Neither railway can absolve itself from liability to third persons unless by legislative sanction. 113 113 Singleton v. Southwestern R. R. Co., 70 Ga. 464, 48 Am. Rep. 574; Macon etc. R. R. Co. v. Mayes, 49 Ga. 355, 15 Am. Rep. 678; Abbott v. Johnstown etc. R. R. Co., 80 N. Y. 27, 36 Am. Rep. 572; Lakin v. Willamette etc. R. R. Co., 13 Or. 436, 57 Am. Rep. 25, 11 Pac. 68. Cannot relieve itself by an agreement placing its em- ployees under control of another road: Wabash etc. Ry. Co. v. Pey- ton, 106 111. 534, 46 Am. Rep. 705. It is a well-settled doctrine that in the absence of legislative authority permitting a lease exempting a company from liability it is responsible for the torts of its lessees: Hardin v. North Carolina R. R. Co., 129 N. C. 354, 85 Am. St. Rep. 747, 40 S. E. 65; City of Raleigh v. North Carolina R. R. Co., 129 N. C. 265, 40 S. E. 2. This question is considered fully in notes, § 351 BY COMMON CARRIERS. 700 "A railroad company using by agreement the road of another company may be liable for damages re- sulting from its negligence, and the owner company to whom is granted the control and management of it will also be liable. The public may look for in- demnity for injury resulting from the unlawful or wrongful operation of the road to that corporation to which they have granted the franchise and to whom was delegated a portion of the public service, and for this purpose the company whom it permits to use its tracks and its servants and agents will be regarded as the servants and agents of the owner company." 114 The cases give as a reason why the lessor of a railroad should be responsible for the negligence of the employees of a lessee company that the lessor company cannot, by contract or lease, shift its re- sponsibility in the management of the road upon any other company or person. The charter or fran- chise authorizing the lessor company to build, own and operate its road constitutes a contract within with full citation of authority, by Mr. Freeman, in 58 Am. St. Rep. 147, and 35 Am. St. Rep. 390-407. The fact that a road contracts with another road to do its switching, or even operate its trains, can- not relieve it from responsibility, and it becomes liable for the negligence of those whom it had authorized to manage its trains for it: Hannibal etc. R. R. Co. v. Martin, 11 111. App. 386, 2 Am. Neg. Cas. 491. A railroad company is responsible for an injury sustained by a passenger in their cars in consequence of the care- less management of a switch, by which another railroad connects with and enters upon their road, although the switch be provided by the proprietors of the other road, and attended by one of their servants at their expense: McBlroy v. Nashua etc. R. R. Co., 4 Cush. 400, 50 Am. Dec. 794, 9 Am. Neg. Cas. 451. 114 Pennsylvania Co. v. Ellett, 132 111. 654, 24 N. E. 559; Lee v. Southern Pac. R. R. Co., 116 Cal. 97, 47 Pac. 932, 58 Am. St. Rep. 140, and cases cited in note; Perry v. Western etc. R. R. Co., 128 N. C. 471, 39 S. E. 27; Suburban R. R. Co. v. Balkwill, 94 111. App. 454. 701 INJURY TO RIGHT OF PERSONAL SECURITY. § 351 the statute, and the company to whom the franchise may be granted agrees that it will operate the road so as to produce the least possible danger, not only to the public but to its employees. It therefore be- comes responsible for injuries to the public on the line of the road, whether it is operated by the com- pany to whom the franchise is granted, or by a lessee company, and it cannot evade its responsibility to the public by any lease or contract that may be made, unless expressly authorized to do so by the legislative power of the state granting the franchise. Even then a naked power to lease does not absolve the lessor company from liability either to the public, or to the persons who might be employed in operating the road. The only exception to this might be, where the lessee's employees are injured by negligence of other employees of the lessee company. The liabil- ity may be said to be a joint liability or concurrent liability, as the circumstances and conditions of the contract or lease would authorize. Being a joint liability, a passenger on the lessor road, though in- jured through the neglect of a servant of the lessee road to whom the particular duty is delegated by both parties, may sue either the lessee or lessor road, or both. 115 In respect to the liability of either road to the employees of the other a more serious question arises. Though this branch of the subject is not appropriately considered here, it may be suggested that it seems quite clear that the employees of the lessor company engaged in the line of their duty in operating the road for the owner, if injured by the negligence of the employees of the lessee com- pany, may have a right of action against both com- 115 See cases cited ante, note 19; also cases in note, 56 Am. St. Rep. 147. § 352 BY COMMON CARRIERS. 702 panics, the lessor and the lessee. The lessor com- pany owes a duty to its employees; if it leases its road, in whole or in part, the duty still remains, and if the lessor company's employees are injured by any- one who is engaged in operating the road under the authority of the owner, the latter becomes respon- sible for his or their negligence. This liability will arise from a violation of those absolute duties which the company owes to the employee. So if a brake- man in the employ of a lessee company is injured through the neglect of the lessor corporation in im- properly constructing its railway track, or in keep- ing the same in repair, he may recover from the les- sor. 116 II. SLEEPING-CAR COMPANIES. § 352. Sleeping-car Company— Its Legal Status — Sleeping-car companies are not regarded as common carriers in the strict sense of the term, and yet the duties which they assume to the traveling public are in some respects the same as those which the law exacts of common carriers. They must furnish seats and accommodations to all proper persons who apply. They are quasi common carriers. "They own and use railway cars affording many comforts, conven- iences and luxuries unknown to first-class ordinary cars of railroad companies, and these cars are to be used in the transportation of passengers from point to point, and the general traveling public is invited to become patrons of the company owning and using these luxurious coaches. The company is, in some sense, engaged in transportation and its business is with the general public. It is unlike the private carrier, who may select his own customers, for it lie Tee v. Southern Pac. R. R. Co., 116 Cal. 97, 56 Am. St. Eep. 140, 47 Pac. 932. 703 INJURY TO RIGHT OP PERSONAL SECURITY. § 353 must take all who are proper persons, and who pay the demanded fare. So not technically a common carrier, .... it bears marked resemblance to the common carrier, and must be held to the performance of its appropriate duties in its business intercourse with the traveling public." 117 It is universally con- sidered that such companies are not liable the same as common carriers. 118 But nevertheless the duties and liabilities are much the same. While they do not assume the obligation to carry passengers in the sense that common carriers do, still they enter into traffic arrangements with the common carriers, by which the latter use their cars for the purpose of carrying their passengers. The sleeping-cars con- stitute a part of the railroad train, and the railway company is liable for the safe carriage of passengers traveling in such car, as though it were one of its own cars. If, therefore, a passenger is injured either by a defective condition of a sleeping-car, or through the negligence or improper conduct of the servants of the sleeping-car company, it is well settled that the railway company is liable. 119 § 353. Same— Servants of Sleeping-car Company are Servants of Carrying Company.— it is well settled that 117 Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 South. 57. lis Pullman Palace Car Co. v. Matthews, 74 Tex. 654, 12 S. W. 744, 15 Am. St. Rep. 873, and note; Lewis v. New York etc. Co., 143 Mass. 269, 58 Am. Rep. 135, 9 N. E. 615; Illinois Cent. R. R. Co. v. Handy, 63 Miss. 609, 56 Am. Rep. 846; Williams v. Pullman Palace Car Co., 40 La. Ann. 87, 8 Am. St. Rep. 512, 3 South. 631; Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 South. 57. 119 Railroad Co. v. Walrath, 38 Ohio St. 461, 43 Am. Rep. 433; Pennsylvania Co. v. Roy, 102 U. S. 451; Dwinelle v. New York Cent. R. R. Co., 120 N. Y. 117, 17 Am. St. Rep. 611, 24 N. E. 319; Williams v. Pullman Palace Co., 40 La. Ann. 417, 8 Am. St. Rep. 538, 4 South. 85; Thorpe v. New York etc. R. R. Co., 76 N. Y. 402, 32 Am. Rep. 325. § 354 BY COMMON CARRIERS. 704 the servants of palace-car companies, even where there is a traffic contract between the railroad company which sells a passage ticket in its ordinary coaches to a passenger, and the proprietors of a sleeping-ear company who sell a ticket to the same passenger for a seat and berth in a sleeping-car run- ning in the same train, are the servants of the rail- road company. The reason for such a rule is that the law will not permit a railroad company engaged in carrying persons for hire, through any device or arrangement with a sleeping-car company, whose cars are used by the railroad, and constitute a part' of its train, to evade the duty imposed upon it by law. The railway company, therefore, is responsible for the acts of the servants of the palace-car com- pany the same as if they were directly employed by it. 120 § 354. Same— Duty Toward Passengers.— A sleep- ing-car company impliedly engages to provide for the comfort and protection of its passengers in respect to their person as well as their property. This duty is probably stronger in the case of sleeping-car com- panies than of common carriers, because the former invites its passengers to its cars that they may sleep, and while in this condition they are the least pre- pared to prevent or resist any personal attacks. But this duty exists so long as the passenger remains such, the same as that of the common carrier, and not merely during the period of time in which he is asleep. This duty of protection must be exer- 120 Pennsylvania Co. v. Roy, 102 TT. S. 451; Thorpe v. New York Cent. R. R. Co., 76 N. Y. 402, 32 Am. Rep. 325; Dwinnelle v. New York Cent. etc. R. R. Co., 120 N. Y. 117, 17 Am. St. Rep. 611, 24 N. E. 319; Stewart v. Brooklyn etc. R. R. Co., 90 N. Y. 588, 43 Am. Rep. 185; Parsons v. New York Cent. etc. R. R. Co., 113 N. Y. 355, 10 Am. St. Rep. 450, 21 N. E. 145. 705 INJURY TO EIGHT OF PEESONAL SECUEITY. § 354 cised by the employees of the car company, and if these employees themselves are the ones to inflict injury upon the passenger, the company must be liable for the same. Thus, when a porter makes an indecent assault upon a female occupant of a berth, 121 or a passenger is wrongfully expelled from a palace-car by a servant of the car company, 122 or if a porter on being asked for food in his charge makes an assault upon the passenger inquiring, while answering his request, 123 the sleeping-car com- pany is held for the wrongful acts. This obligation on the part of the car company is due only to those who are passengers upon its cars, and not strangers to it, even though they are passengers upon the train to which the car company's car is attached. Thus, the palace-car company is not liable for an assault by its porter upon a stranger coming in from another car for a drink of water in the palace-car, 124 though the railroad company which transports the palace-car in its train will be liable for the same act. 125 The distinction drawn in these two cases is that in the case of the car company the injured person was not a patron of the company, and hence the company had not contracted to protect him from injury, and as the act of the porter was without the scope of his employment, the company was not re- sponsible, 126 while the railway company had con- tracted for the protection of the passenger, and the 121 Campbell v. Pullman Palace Car Co., 42 Fed. 484. 122 Paddock v. Atchison etc. R. Co., 37 Fed. 841. 123 Pullman Palace Car Co. v. Lawrence, 74 Miss. 782, 22 South. 53. 124 Williams v. Pullman Palace Car Co., 40 La. Ann. 87, 8 Am. St. Rep. 512, 3 South. 631. 126 Williams v. Pullman Palace Car Co., 40 La. Ann. 417, 8 Am. St. Rep. 538, 4 South. 85. 126 Ante, sec. 69. Torts, Vol. 1—45 § 355 BY COMMON CARRIERS. 706 injury was inflicted by an employee upon one of its trains, who is at the same time an employee of the sleeping-car company. The company would be liable for failure to provide a properly warmed car, 127 and for failure to furnish reasonably safe means to en- able a passenger to get out of his berth — an upper one, 128 and for allowing the rear door upon the rear car to remain open with no light, by reason whereof a passenger in endeavoring to find the toilet-room is thrown from the car. 129 The fact that an upper berth falls on a passenger is prima facie negli- gence. 130 The company cannot be held for the death of a passenger, caused by one entering a car with intent to commit murder or robbery, where the em- ployees do not know of the danger. 131 § 355. Same— Duty to Awaken Passengers.— Al- though the contract of carriage is made with the railroad company, the Pullman car company is bound to awaken a passenger a sufficient length of time to give him an opportunity to make the necessary preparation for leaving the car upon arriving at the place of his destination, or for changing cars, whether this be stipulated in the contract of carriage or not. Neglect to perform this duty, resulting in damages, gives rise to a right of action. 133 127 Hughes v. Pullman Palace Car Co., 74 Fed. 499. 128 Pullman Palace Car Co. v. Fielding, 62 III. App. 577. 129 Piper v. New York etc. R. R. Co., 76 Hun, 44, 27 N. Y. Supp. 593. 130 Railroad Co. v. Walrath, 38 Ohio St. 461, 43 Am. Rep. 433. 131 Connell v. Chesapeake etc. Ry. Co., 93 Va. 44, 57 Am. St. Rep. 786, 24 S. E. 467. 132 Pullman Palace Car Co. v. Smith, 79 Tex. 468, 23 Am. St. Rep. 356, 14 S. W. 993; McKeon v. Chicago etc. Ry. Co., 94 Wis. 477, 59 Am. St. Rep. 910, 69 N. W. 175. 707 INJURY TO RIGHT OF PERSONAL SECURITY. §§ 356, 357 III. STREET RAILWAYS. § 356. Street Railways as Common Carriers.— A street railway company holdH itself out as a com- mon carrier of passengers on the streets of a city. It is subject to all the rights, duties, and liabilities of common carriers in general in respect to its du- ties as to care toward its passengers, to its tracks, cars, means of locomotion, operation and manage- ment of its business. According to our conception of negligence, it is liable for injuries if it does not exercise the skill or care which might reasonably be expected of prudent and intelligent persons engaged in that business, and having consideration of the instrumentalities and means used and the dangers naturally incident thereto. This rule is of course variously expressed by courts, but is substantially the same as applied to all kinds of carriers. It is well settled that street railway companies are com- mon carriers of passengers. 133 § 357. Degree of Care Exacted of Street Railways Toward Their Passengers. — At one time there may have been good reason for saying that there is a marked difference between the duties which the law imposes upon those who operate street railways and those who operate ordinary steam railway®, because of the dangers necessarily incident to each mode of car- riage. 134 But there is no reason why the ordinary common-law rule as to the care which common car- riers must use toward their passengers should not be applied to the modern street railway. Common car- 13 3 Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890, 38 Am. St. Rep. 753, 55 N. W. 270; Lincoln St. Ry. Co. v. McClellan, 54 Neb. 672, 69 Am. St. Rep. 736, 74 N. W. 1074. 13 4 Anderson v. Citizens' Street R. R. Co., 12 Ind. App. 194, 38 N. E. 1109. § 308 BY COMMON CARRIERS. 708 riers of persons are required to do all that human care, vigilance and foresight can under the circum- stances, in view of the character and mode of con- veyance adopted. 135 It is said that street railways are to use "all possible skill and care," or "the ut- most skill, diligence and foresight," or "the highest" care consistent with the business in which they are engaged. 136 § 358. Duty as to Tracks and Equipment.— in re- gard to its tracks and equipment, the street railway must use great caution to see that they are in a con- dition which will render the operation of the rail- way reasonably safe to passengers. The tracks must be so constructed as to prevent the cars from being thrown off. Thus, a passenger may recover when he is injured by a car being derailed at a place being repaired and obviously defective. 137 They must be kept in a reasonably safe condition or the passengers guarded from injury through their de- fects, and it is negligence for a street-car to stop di- rectly over an excavation, so that its passengers will fall therein, when alighting, 138 and where a street railway has adopted and used a bridge maintained by the state, it is liable for injuries resulting from defects in such bridge. 139 The cars must also be in such a condition as to render the safety of those riding therein reasonably certain, and the cars must 135 Ttiller v. Talbot, 23 III. 357, 76 Am. Dec. 695. 136 Topeka City Ry. Co. v. Hlggs, 38 Kan. 375, 5 Am. St. Rep- 754, 16 Pac. 667; Leavenworth Electric R. R. Co. v. Cusick, 60 Kan. 590, 72 Am. St. Rep. 374, 57 Pac. 519; Spellman v. Lincoln Rapid Transit Co., 36 Neb. 890, 38 Am. St. Rep. 753, 55 N. W. 270. 137 Citizens' Street Ry. Co. v. Twiname, 111 Ind. 587, 13 N. E. 55. 138 Richmond City R. R. Co. v. Scott, 86 Va. 902, 11 S. E. 404; Valentine v. Middlesex Ry., 137 Mass. 28. 139 Birmingham v. Rochester City etc. R. Co., 18 N. Y. Supp. 649, 63 Hun, 635. T09 INJURY TO RIGHT OF PERSONAL SECURITY. § 359 be frequently inspected in order to discover any de^ fects which may be occasioned by their use. 140 But the street railway company is not an insurer of the safety of its equipment and appliances. So where its cars, though old, were kept in good repair, 141 and its cable grips are the best known, 142 it will not be liable. On the other hand, to allow snow and ice and mud to accumulate on the car steps is neg- ligence, 143 and while lack of fenders to prevent per- sons getting on or off the wrong platform, or the wrong side of the car, is not prima facie negligence, it is strong evidence of it. 144 IV. BOATS AND SHIPS. § 359. Boats and Ships— Duties and Liabilities — There is a duty devolving upon those who navigate vessels upon the water, which is the broadest of highways, to employ due care to prevent injury to others traveling thereon, which corresponds to the duty resting upon those traveling over the highways on land to avoid injury to others upon the same. The extreme danger of loss of life and property likely to result from collisions upon the water render the exercise of great caution necessary. The large in- crease of commerce between the continents of the world has rendered this subject of great importance, and maritime law exacts the most unremitting vig- 140 Carter v. Kansas City etc. Ry. Co., 42 Fed. 37; Schneider v. Second Ave. R. Co., 133 N. Y. 583, 30 N. E. 752; Wormsdorf v. Detroit City Ry. Co., 75 Mich. 472, 13 Am. St. Rep. 453, 42 N. W. 1000. 141 Wormsdorf v. Detroit Ry. Co., 75 Mich. 472, 13 Am. St. Rep. 453, 42 N. W. 1000. 142 Carter v. Kansas City etc. Ry. Co., 42 Fed. 37. 143 Neslie v. Second etc. Ry., 113 Pa. St 300, 6 Atl. 72. 144 Philadelphia City etc. Ry. Co. v. Hassard, 75 Pa. St. 367; Hestonville etc. R. Co. v. Connell, 88 Pa. St. 520, 32 Am. Rep. 472; West Philadelphia etc. R. Co. v. Gallagher, 108 Pa. St. 524. I 359 BY COMMON CARRIERS. 710 ilance to avoid accidents. 14 * The duties and pre- cautions vary according to the means which are used for locomotion, whether wind, hand or steam power is used. Just as on land those who travel by the use of powerful agencies must use great diligence to avoid injuries to others, so on water it is deemed the duty of steamships to keep out of the way of vessels using less powerful or reliable agencies. As has been well said: "Steamboats have means of keep- ing out of the way which other boats do not possess. The law exacts of them exertions to avoid injuries proportionate to their power." 146 Thus, a steam- boat is bound to avoid a collision with a boat which is drifting and depending upon the current for its movement, 147 and it owes the duty of keeping clear from sailing vessels, and when they are approach- ing each other it is the duty of the steamboat to adopt all the precautions necessary. 148 Especially does the steamer owe this duty if the sail-boat is be- calmed. 149 But the steamboat does not owe such a duty to rowboats, and the former has the right to assume that the occupants have control over the movements of their boat and will get out of the 145 The Nacoochee, 22 Fed. 855. 146 Holmes v. Watson, 29 Pa. St. 457. 147 Bigley v. Williams, 80 Pa. St. 107; Seaman v. Crescent City, 1 Bond (0. S. Cir. Ct), 105; Pearce v. Page, 24 How. 228; Birdsall v. The Colorado, 59 Fed. 300; Parrott v. Knickerbocker Ice Co., 46 N. Y. 361. 148 The Illinois, 103 U. S. 298; Mailler v. The Express Propeller Line, 61 N. Y. 312; Saune v. Tourne, 9 La. 428, 29 Am. Dec. 452; Haight v. Bird, 26 Fed. 539; Holmes v. Watson, 29 Pa. St. 457; The Plymouth, 26 Fed. 879; The Bay Queen, 42 Fed. 271; The Benefactor, 102 U. S. 214; Philadelphia etc. R. Co. v. Kerr, 33 Md. 331; Holmes v. Watson, 29 Pa. St. 457; The Free State, 91 U. S. 200. 149 Saune v. Tourne, 9 La. 428, 29 Am. Dec. 452; The Plymouth, 26 Fed. 879; The Bay Queen, 42 Fed. 271; Birdsall v. The Colorado, 59 Fed. 300. 711 INJURY TO RIGHT OF PERSONAL SECURITY. § 359 way of the steamer, 150 unless it is apparent that the boat is mismanaged or laboring under some dis- advantage. 151 Again, it is the duty of any vessel in motion to use due diligence to prevent a collision with another which is lying at anchor or is aground. 152 As a means to this end, it is one of the chief duties to be 'observed that a strict and vigilant lookout be con- stantly kept, in order that the approach of other vessels may be noticed in time to arrange the ship's course so as to prevent a collision. This lookout must be kepi at all times, and during a storm or fog, and at night it should be especially vigilant, and the entire attention of the person so engaged should be given up to this duty so that at no time it should be relaxed. So also he should be placed in a posi- tion from which he can have a clear view in every direction from which danger may come. 153 Again, if the vessel be proceeding in a fog, it is bound to sound a horn or whistle, to give warning to other ships. 154 As on land it is necessary to use 150 Fischer v. Steamboat Co., 124 Pa. St. 154, 16 Atl. 634; Phila- delphia etc. R. R. Co. v. Adams, 89 Pa. St. 31, 33 Am. Rep. 721. 151 Sekerak v. Jutte, 153 Pa. St. 117, 25 Atl. 94. 152 The Rockaway, 19 ' Fed. 449; The Merrimac, 14 Wall. 199; Knowlton v. Sanford, 32 Me. 148, 52 Am. Dec. 649; Simpson v. Hand, 6 Whart. (Pa.) 311, 36 Am. Dec. 231; Bill v. Smith, 39 Conn. 206; The New York v. Rea, 18 How. 223; Adams v. Wiggins, 27 Mo. 95, 72 Am. Dec. 247; The Blue Wing v. Buckner, 12 B. Mon. 246; Baker v. Lewis, 33 Pa. St. 301, 75 Am. Dec. 598. 153 The City of New York, 8 Blatchf. 194, Fed. Cas. No. 2759; Bill v. Smith, 39 Conn. 206; Haney v. Baltimore etc. Co., 23 How. 287; Whitridge v. Dill, 23 How. 448; The New Orleans, 106 U. S. 13, 1 Sup. Ct. Rep. 90; Ward v. Armstrong, 14 111. 268; The Empire State, 2 Biss. 216, Fed. Cas. No. 4474; St. John v. Paine, 10 How. 557; Thorpe v. Hammond, 12 Wall. 408; Schmidt v. The Reading, 43 Fed. 815; The Pottsville, 12 Fed. 631; Neally v. The Michigan, 63 Fed. 280. 154 McCready v. Goldsmith, 18 How. 89. § 359 BY COMMON CARRIERS. 712 more caution in traveling upon a crowded thorough- fare than upon a little used road in the country, so greater circumspection is required in navigating a harbor or crowded river than out at sea, 155 and a steamboat should not run at such a rate of speed that it cannot be stopped in time to prevent an ac- cident after the danger is seen. 156 Thus, a steam- boat is liable for negligence for proceeding at an excessive speed in passing a line of tows, 157 or on a crowded river, 158 and in traveling through a fog it is bound to do so at a moderate rate of speed, and the rate of speed should be determined by the density of the fog, the likelihood of meeting other vessels, and the ability to stop the ship entirely upon the appearance of danger. 159 The vessel which is injured may, however, be guilty of such contrib- utory negligence as will prevent a recovery for the damage done, for every boat must exercise precau- tions to prevent others from running into them as well as to avoid colliding with others, and if through the failure to exercise such precautions, and not by 155 The City of Paris, 9 Wall. 634; Culbertson v. Shaw, 18 How. 584; The Badger State, 15 Fed. 346; The State of Texas, 20 Fed. 254; The Little Giant, 2 Biss. 23; Newton v. Stebbins, 10 How. 586; Pearce v. Page, 24 How. 228. 156 The Little Giant, 2 Biss. 23, Fed. Cas. No. 8401; The Syra- cuse, 9 Wall. 672; The Blenheim, 14 Fed. 797; The Free State, 91 U. S. 200; The City of New York, 15 Fed. 624; The Leland, 19 Fed. 771; McCready v. Goldsmith, 18 How. 89; The Pennsylvania, 19 Wall. 125; The Favorita, 18 Wall. 598; Greenman v. The Narragan- sett, 4 Fed. 244. 157 The Syracuse, 9 Wall. 672. 158 The Little Giant, 2 Biss. 23, Fed. Cas. No. 8401; The Syra- cuse, 9 Wall. 672; The Favorita, 18 Wall. 598; The Buckeye, 9 Fed. 666; Greenman v. The Narragansett, 4 Fed. 244. 159 The Leland, 19 Fed. 771; The City of New York, 15 Fed. 624; McCready v. Goldsmith, 18 How. 89; The Pennsylvania, 19 Wall. 125; The Colorado, 91 U. S. 692; The Nacoochee v. Moseley, 137 TJ. S. 330, 11 Sup. Ct. Rep. 122; The Martello v. The Willey, 153 U. S. 64, 14 Sup. Ct. Rep. 723; The Bolivia, 49 Fed. 169. 713 INJURY TO RIGHT OF PERSONAL SECURITY. § 360 reason of negligence on the part of others, they are injured, there can be no recovery. So the failure to conform to the rules or regulations which are in general use as rules of navigation, in respect to the placing of red and green lights upon board the ship at night, and the direction in which to steer under certain conditions, and giving and answering of signals, will be deemed contributory negligence. 160 V. ELEVATORS. § 360. Elevators are Common Carriers.— The law is well settled that persons operating elevators in buildings for the purpose of carrying persons from one story to another are common carriers of passen- gers, and that the same rules that are applicable to other carriers of passengers are applicable to them, they being bound to observe the same care and dili- gence. This question has been considered in a great many states, and this is the unanimous opinion. 161 160 The Pennsylvania, 12 Fed. 914; The Empire State, 2 Biss. 216, Fed. Cas. No. 4474; The Alabama, 26 Fed. 866; The Jesse Will- iamson, Jr., 17 Blatchf. 106, Fed. Cas. No. 7296; Innis v. The Steamer Senator, 1 Cal. 459, 54 Am. Dec. 305; Simpson v. Hand, 6 Whart. (Pa.) 311, 36 Am. Dec. 231; The Garden City, 19 Fed. 529; The Pavonia, 26 Fed. 106; The Johnson, 9 Wall. 146. 161 California: Treadwell v. Whittier, 80 Cal. 575, 13 Am. St. Rep. 175, 22 Pac. 266. Illinois: Springer v. Ford, 189 111. 430, 82 Am. St. Rep. 464, 59 N. E. 953; Hartford Deposit Co. v. Sollitt, 172 111. 222, 64 Am. St. Rep. 35, 50 N. E. 178. Kentucky: Kentucky Hotel Co. v. Camp, 97 Ky. 424, 30 S. W. 1010. Maryland: People's Bank v. Morgolofski, 75 Md. 432, 32 Am. St. Rep. 403, 23 Atl. 1027. Minnesota: Goodsell v. Taylor, 41 Minn. 207, 16 Am. St. Rep. 700, 42 N. W. 873. Missouri: Lee v. Knapp, 55 Mo. App. 390. yew York: Tousey v. Roberts, 114 N. Y. 312, 11 Am. St. Rep. 655, 21 N. E. 399. Tennessee: Southern Bldg. Assn. v. Lawson, 97 Tenn. 367, 56 Am. St. Rep. 804, 37 S. W. 86. § 361 BY COMMON CARRIERS. 714 § 361. Same— Care Required of Persons Operating Elevators. — Carriers of passengers in elevators being treated as common carriers with equal responsibility, applying the same tests of care and diligence, they must exercise the highest degree of care and dili- gence. Passengers in elevators are necessarily sub- jected to great risks, it being impossible in case of the breaking of machinery to help themselves. The utmost care and diligence must be used by the pro- prietors of such elevators to avoid injury to those whom they carry; where the danger is great, the utmost care and diligence must be employed. In such cases, the law requires extraordinary care and diligence. Mr. Justice Thornton, of the supreme court of California, delivering the opinion of that court upon the liability of elevator proprietors, treats the sub- ject very comprehensively, reaching the conclusion above stated and further says: "We know of no em- ployment where the law should demand a higher degree of care and diligence than in the case of the persons using and running elevators for lifting human beings from one level to another. The danger of those being raised is great. When persons are in- jured by the giving way of the machinery, the hurt is always serious, frequently fatal; and the law should, and does, bind persons so engaged to the highest degree of care practicable under the circum- stances. It would be injustice and cruelty to the public in courts to abate in any degree from this high degree of care. The aged, the helpless, and the infirm are daily using these elevators. The owners make profit by these elevators, or use them for the profit they bring them. The cruelty from a careless use of such contrivances is likely to fall on the weakest of the community. All, including the 715 INJURY TO RIGHT OF PERSONAL SECURITY. § 361 strongest, are without the means of self-protection npon the breaking down of the machinery. The law, therefore, throws around such persons its protection, by requiring the highest care and diligence." 162 The above language is strong in terms, too much so for practical use in charging juries, but it may be justified in stating the reasons for the rule of care required in such cases, generally adopted by the courts. The most temperate statement of the care to be exacted of carriers of passengers, previously stated in this chapter, 163 since we must character- ize the degree as of the highest, is that proprietors of elevators should use the highest degree of care that is reasonably consistent with the practical conduct of the business. A person running an elevator in his place of business must be held to undertake to carry safely persons riding therein as fully as human fore- sight can do. Upon this the decisions will generally unite, although it may be expressed in slightly dif- ferent language. As, for instance, "the utmost care and diligence," 164 "the utmost care and foresight," being responsible for the slightest degree of negli- gence, 165 "the highest and utmost care and dili- gence," 166 "the highest degree of care and cau- tion." 167 With, reference to freight elevators it is said that "it is the duty to keep and maintain the 162 Treadwell v. Whittier, 80 Cal. 575, 13 Am. St. Rep. 175, 22 Pac. 266. 163 Ante, sees. 334, 335. 164 Treadwell v. Whittier, 80 Cal. 575, 13 Am. St. Rep. 175, 22 Pac. 266. 165 Goodsell v. Taylor, 41 Minn. 207, 16 Am. St. Rep. 702, 42 N. W. 874. 166 Springer v. Ford, 189 111. 430, 82 Am. St. Rep. 464, 59 N. E. 953. 167 Southern etc. Assn. v. Dawson, 97 Tenn. 367, 56 Am. St. Rep. 804, 37 S. W. 86. See valuable note on "Liabilities of Owners of Elevators, etc.," 56 Am. St. Rep. 806. I 362 BY COMMON CARRIERS. 716 elevator in a safe and suitable condition." 1CS The exercise of this care for the safety of those using the elevators extends to the furnishing of good and well- constructed machinery, adapted to the purposes of its use, of good material, 169 to the management and control of the car, 170 to the provision of experienced and skilled operators. 171 § 362. Same Continued— Special Instances of Lia- bility. — The first or foremost duty of one operating an elevator for the carriage of persons is to properly con- struct it, using all reasonable means and efforts to furnish suitable and well-constructed machinery, adapted to the purposes of its use, of good material, and of the kind which is found to be the safest when applied to use. 172 The owner cannot excuse himself on the ground that the same was constructed by a competent and skillful manufacturer; 173 nor will the fact that it is put in by an independent contractor excuse him, 174 While a proprietor is not bound to adopt and use every new device or invention, yet he is required to keep up with the times and modern im- provements. 175 Like all carriers of passengers, he must maintain such a careful and prudent inspection of the machinery and equipment as will enable him to discover any defects or danger. And if a defect 168 Ellis v. Waldron, 19 R. I. 369, 33 Atl. 869. 169 Treadwell v. Whlttier, 80 Cal. 575, 13 Am. St. Rep. 175, 22 Pac. 266. 170 Mitchell v. Marker, 62 Fed. 140. 171 Marker v. Mitchell, 54 Fed. 637; Kentucky Hotel Co. v. Camp, 97 Ky. 424, 30 S. W. 1010. 172 Treadwell v. Whittier, 80 Cal. 575, 13 Am. St. Rep. 175, 22 Pac. 266. 173 Id. 174 McGregor v. Reid, 178 111. 464, 69 Am. St. Rep. 332, 53 N. E. 323. 175 Treadwell v. Whittier, 80 Cal. 575, 13 Am. St. Rep. 175, 22 Pac. 266. 717 INJURY TO RIGHT OF PERSONAL SECURITY. § 362 has existed long enough for him to have discovered it by the observance of ordinary care, and he does not, and injury occurs, he is liable. For instance, if he fails 1 to keep a safety device in working order, and this is the cause of injury, he is liable. 17 ® Or if the cable of a passenger elevator is used so long as to be seriously worn, weakened, and rendered insecure, which may have been easily discovered, if properly looked after, and it gives way, this is sufficient to jus- tify the finding of negligence in the care and manage- ment of the elevator. 177 A person operating an ele- vator with broken, insecure, and insufficient machin- ery, by reason whereof the same is precipitated to a lower floor, injuring another, is liable. 178 If a pas- senger is injured by reason of some giving way of some portion of the machinery or appliances by which an elevator is operated, this, unexplained, raises a presumption of negligence on the part of the owner or his servants. 179 Not only must the owner of an elevator look after his machinery and equipments, but he must provide careful and experienced persons to operate them; and if he fails in this duty, which is the cause of injury, he is liable. 180 An operator of elevators must use reasonable prudence to guard the safety of passengers. He should see that passengers do not alight at improper places, and when starting the car to see that there is no danger to passengers. 181 176 McGregor v. Reid, 178 111. 464, 69 Am. St Rep. 332, 53 N. E. 323. 1T7 Goodsell v. Taylor, 41 Minn. 207, 16 Am. St. Rep. 700, 42 N. W. 873. 178 Treadwell v. Whittier, 80 Cal. 575, 13 Am. St. Rep. 175, 22 Pac. 266. 179 Springer v. Ford, 189 111. 430, 82 Am. St. Rep. 464, 59 N. E. 053. 180 Kentucky Hotel Co. v. Camp, 97 Ky. 424, 30 S. W. 1010; Marker v. Mitchell, 54 Fed. 637. 181 Mitchell v. Keene, 87 Hun, 266, 33 N. Y. Supp. 1045. §§ 363, 364 BY COMMON CARRIERS. 718 § 363. Same Continued— Person Injured Must be Pru- dent. — A passenger does not observe care when he himself attempts to open the door of the elevator and to step out while the car is moving. 183 And if a news- boy takes a position in the car of an elevator contrary to a rule prohibiting newsboys from riding thereon, with knowledge of such rule, such violation may be shown to defeat recovery for injury. 183 An employee of the owner of an elevator who is familiar with the construction and operation of the same, who rides thereon under an implied license, for his own pleas- ure, assumes whatever risk is incident to such con- struction and operation. 184 § 364. Falling into Elevator Shaft. — Many distress- ing accidents have happened by persons walking into open elevator shafts, and the measure of care which operators of elevators are required to observe to avoid such injuries is not the same as that of a carrier of passengers. They must use due care for the safety of those intending and having the right to use the elevator. It is said that "an elevator for the carriage of persons is not, like a railroad crossing at a high- way, supposed to be a place of danger, to be ap- proached with great caution; but, on the contrary, it may be assumed, when the door is thrown open by an attendant, to be a place which may be safely en- tered without stopping to look, listen, or make spe- cial examination." 185 This is not an apt comparison. We might just as well say that one may walk absent- 182 Green v. Young Men's Christian Assn., 65 111. App. 459. 183 Springer v. Byram, 137 Ind. 15, 45 Am. St. Rep. 159, 36 N. B. 361. 184 O'Brien v. Western Steel Co., 100 Mo. 182, 18 Am. St. Rep. 536, 13 S. W. 402. 185 Tousey v. Roberts, 114 N. Y. 312, 11 Am. St. Rep. 655, 21 N. E. 399. 719 INJURY TO RIGHT OF PERSONAL SECURITY. § 364 mindedly across in front of a moving railway train as to say that he may walk into an open elevator shaft without noticing that everything is in readiness for him to take passage. It is true that it is negli- gence to leave an elevator door open, but this does not relieve another from the observance of due care. An open elevator door does not signify that it is a place that may be safely entered, because the eleva- tor car is almost as readily discovered as a railroad train, except by the noise. Passenger elevators are usually in light places, or are lighted, but if the place is too dark for a person to see whether the elevator is there or not, it is clearly negligence on the part of the proprietor. 186 But generally, whether the ap- pearances are such as to warrant a person in walking into the shaft so as to excuse the injured from con- tributory negligence is for the jury, though not un- less different minds would arrive at different conclu- sions. 187 186 People's Bank v. Morgolofski, 75 Md. 432, 32 Am. St. Rep. 403, 23 Atl. 1027. 187 Id.; Dawson v. Sloane, 49 N. Y. Sup. Ct. 304, 100 N. Y. 620. SS 365 INJURY TO PEESONAL SECURITY. 720 CHAPTER XXV. INJURY TO PERSONAL SECURITY— BY NEGLECT OP PHYSICIANS, SURGEONS, AND APOTHECARIES. § 365. Nature of the right violated. § 366. Relation between physician and patient. § 367. Acceptance of employment. § 368. General rule of duty required of physician. § 369. Care required of specialists. § 370. When services gratuitous— Care not varied. § 371. Violations of duty considered — Surgical operations. § 372. Violations of duty— Other instances. § 373. Liability of physician for neglect of another sent in his stead. § 374. Established modes of practice must be followed. § 375. Consent of patient to operation. § 376. Same — Who must consent. § 377. Physician or surgeon of hospital not its agent. § 378. Contributory negligence of patient— Effect. § 379. Pharmacists — Duties and liabilities. § 380. Same continued — Wholesaler and retailer— Their liability. £ 381. Same continued— Contributory negligence. § 365. Nature of the Right Violated.— According to Blackstone's notions of the rights of persons and their infringement, the right of personal security em- braced the right to the enjoyment of health and "injuries affecting a man's health are where by any unwholesome practice of another, a man sustains any apparent damage in his vigor or constitution. As by selling him bad provisions or wine .... or by the neglect or unskillful management of his physi- cian, surgeon, or apothecary." These are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action on the case. 1 l 3 Blackstone's Commentaries, 122. '21 PHYSICIANS AND SURGEONS. §§ 366,367 The wrongful act on the part of the physician or sur- geon may be characterized by negligence, or in some instances it may be without right merely. § 366. Relation Between Physician and Patient — The relation existing between physician or surgeon and patient is of a peculiar nature. The law creates an implied contract between them, based upon the relation. This contract is really founded on the duty which the law imposes upon the physician in the interest of the public, which requires that he shall use ordinary knowledge and skill in any case. There is no implied contract that the physician or surgeon will effect a cure. Such a contract can only be ex- pressly made. An action, therefore, for neglect may either be based upon this implied contract, or it may be founded upon the nonobservance of the duty which the law exacts in the particular case. 2 An action is in tort when the complaint charges disregard of duty by negligently diagnosing a case. 3 On the other hand, if a plaintiff alleges that he employed a physi- cian to give professional attention to a member of his family, which the physician promised to do, but that he failed to give the patient proper attention, this is an action on the contract, and not in tort. 4 § 367. Acceptance of Employment.— The relation of physician and patient being created by contract, there is no legal obligation imposed upon the former, merely because he holds himself out to the public as a general practitioner, to enter into a contract of 2 De Hart v. Haun, 126 Ind. 378, 20 N. E. 61; Gobble v. Dillon, 86 Ind. 327, 44 Am. Eep. 308. 3 Nelson v. Harrington, 72 Wis. 591, 7 Am. St. Rep. 900, 40 N. W. 228. 4 Lane v. Boicourt, 12S Ind. 420, 25 Am. St Rep. 442, 27 N. E. 1111. Torts, Vol. 1-46 i 368 INJUEY TO PEKSONAL SECUBITY. 722 employment to render professional service to every- one who seeks his services. Even though a physi- cian may be considered what may be ordinarily termed the family physician of another, still he may decline to render medical attendance at any time when called upon without rendering himself liable in damages to one whom he refuses to attend. "In obtaining the state's license to practice medicine, the state does not require, and the licensee does not engage, that he will practice at all or on other terms than he may choose to accept Analogies drawn from the obligations to the public on the part of innkeepers, common carriers, and the like, are beside the mark." 5 When a physician accepts em- ployment he engages to attend the case as long as it requires his attention, or until he is discharged by the patient, which the latter may do at any time. A physician must use reasonable care when he deter- mines to discontinue attendance upon a patient, and if he fails in this, or abandons the patient wrong- fully, he is liable to an action. 6 It is held, too, that a physician may terminate his employment upon giv- ing reasonable notice. 7 A failure of a patient to re- turn to the office of a physician for treatment as per instructions cannot be chargeable to the latter. 8 § 368. General Rule of Duty Required of Physician — When a physician or surgeon holds himself out to practice medicine and undertakes employment, the 6 Hurley v. Eddingfield, 156 Ind. 416, 83 Am. St Rep. 198, 59 N. E. 1058; Wharton on Negligence, sec. 731. 6 Lawson v. Conaway, 37 W. Va. 159, 38 Am. St. Rep. 17, 16 S. E. 564; Hurley v. Eddingfield, supra; Dale v. Donaldson Lumber Co., 48 Ark. 188, 3 Am. St. Rep. 224, 2 S. W. 703. 7 Hurley v. Eddingfield, supra; Taylor's Law of Physicians, TZ; Becker v. Janinski, 27 Abb. N. C. 45, 15 N. Y. Supp. 675; Ballou v. Prescott, 64 Me. 305. s Dashiell v. Griflith, 84 Md. 363, 35 Atl. 1094. 723 PHYSICIANS AND SURGEONS. § 368 contract with his patient which the law implies, and the duty which the law imposes upon him, is, that he possess a reasonable degree of learning, skill and ex- perience, and that he will use reasonable and ordi- nary care and diligence in the performance of his professional duty. 9 Whether or not he does so, or whether or not he has been guilty of professional neglect in a particular case, is for the determination of the jury, under appropriate instructions by the court as to what his duty is in the premises. We shall in this section set down the rule of care required which has been generally adopted and followed by the courts. In the first place, it is universally agreed that a physician cannot be held as an insurer. As well stated in an early case, if the result depends entirely upon the skill of the physician or surgeon he im- pliedly agrees to accomplish it, but where it depends also on other causes, over which he has no control, the law only implies an engagement to employ the usual skill as a means and not that the end shall be attained. 10 Again, there is no dissent from the rule that the highest degree of skill and knowledge cannot be ex- acted of the practitioner of medicine or surgery. If it were otherwise and such a rule prevailed, it would 9 Pike v. Housinger, 165 N. Y. 201, 63 Am. St. Rep. 655, 49 N. B. 760 (opinion contains full and excellent statement of the duty of a physician); Leighton v. Sargent, 27 N. H. 460, 59 Am. Dec. 388; Branner v. Stormont, 9 Kan. 51; Long v. Morrison, 14 Ind. 595, 77 Am. Dec. 72; Cayford v. Wilbur, 86 Me. 414, 29 Atl. 1117; Wilmot v. Howard, 39 Vt. 447, 94 Am. Dec. 338; Holtzman v. Hoy, 118 111. 534, 59 Am. Rep. 390, 8 N. B. 832; Reynolds v. Graver, 3 Wis. 416. 10 Gallagher v. Thompson, Wright, 466; Leighton v. Sargent, 27 N. H. 460, 59 Am. Dec. 388; Styler v. Tyler, 64 Conn. 463, 30 Atl. 166; Tefft v. Wilcox, 6 Kan. 46; Craig v. Chambers, 17 Ohio St. 253; Graham v. Gautier, 21 Tex. Ill; Quinn v. Donovan, 85 111. 194. § 368 INJURY TO PERSONAL SECURITY. 724 make the youngest and most inexperienced liable for failure to possess the knowledge and skill of the oldest and most experienced. 11 We find the rule many times stated, that there must be such skill and knowledge exercised on the part of the physician or surgeon as is shown by the ordinary or average practitioner in the profession considered as a whole, or as a body. 12 Such a rule cannot operate fairly and justly in all localities. The standard required of those in large cities, having greater advantages for advanced study and modern improved facilities, may be too low, or it may be too high for those practicing in small country places with little or no opportunity of observing the ad- vancements or improvements in the science. So the rule properly is, that the standard of skill and knowledge is the ordinary knowledge and skill possessed by physicians and surgeons in good stand- ing in the same system or school of practice in the locality of the residence of the one charged with pro- fessional neglect; the standard is the ordinary skill and knowledge of those similarly situated, or in simi- lar localities with similar opportunities 'for experi- ence. This is the view now generally taken by the courts. 13 Physicians and surgeons are bound to keep 11 Holtzman v. Hoy, 118 111. 534, 59 Am. Rep. 390, 8 N. E. 832; Pike t. Housinger, 155 N. Y. 201, 63 Am. St. Rep. 655, 49 N. E. 760; Wilmot v. Howard, 39 Vt. 447, 94 Am. Dec. 338; Howard v. Grover, 28 Me. 97, 48 Am. Dec. 478; Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593. 12 Smothers v. Hanks, 34 Iowa, 286, 11 Am. Rep. 141; Peck v. Hutchinson, 88 Iowa, 320, 55 N. W. 511; Holtzman v. Hoy, 118 111. 534, 59 Am. Rep. 390, 8 N. E. 832; Howard v. Grover, 28 Me. 97, 48 Am. Dec. 478; Wilmot v. Howard, 39 Vt 477, 94 Am. Dec. 338; Patten v. Wiggins, 51 Me. 594, 81 Am. Dec. 593; Leighton v. Sar- gent, 27 N. H. 460, 59 Am. Dec. 388; Heath v. Glisan, 3 Or. 64. 13 Gates v. Fleischer, 67 Wis. 504, 30 N. W. 674; Hathorn v. Rich- mond, 48 Vt. 557; Pike v. Housinger, 155 N. Y. 201, 63 Am. St. Rep. 655, 49 N. E. 760; Force v. Gregory, 63 Conn. 167, 38 Am. St. Rep. 725 PHYSICIANS AND SURGEONS. § 368 apace of the times, and their ability must be judged according to "the improvements and advanced state of the profession at the time of treatment." 14 In addition to the foregoing requirements as to knowledge and skill, the law exacts of the physician or surgeon that in their exercise he shall bring to bear his "best judgment," 15 and there is no liability for results if he does this, 16 especially not for a mere error of judgment. 17 There can be no occasion, how- ever, for the exercise of judgment, when it is a case where a physician possessed of ordinary knowledge and skill, would pursue one course, there being no other alternative. If, therefore, under such circum- stances a physician should attempt to exercise judg- ment, this fact may be strong evidence of the want of the requisite skill and knowledge. 18 371, 27 Atl. 1116; Small v. Howard, 128 Mass. 131, 35 Am. Hep. 363; Gramm r. Boehner, 56 Ind. 497; Pelky v. Palmer, 109 Mich. 561, 67 N. W. 561; Whitesell y. Hill, 101 Iowa, 629, 37 L. R. Ann. 830, 70 N. W. 750; Lawson v. Conaway, 37 W. Va. 159, 38 Am. St. Rep. 17, 16 S. E. 564; Nelson v. Harrington, 72 Wis. 591, 7 Am. St. Rep. 900, 40 N. W. 228. 14 Smothers v. Hanks, 34 Iowa, 286, 11 Am. Rep. 141; McCandless v. McWha, 22 Pa. St. 261; Peck v. Hutchinson, 88 Iowa, 320, 55 N. W. 511; Gates v. Fleischer, 67 Wis. 504, 30 N. W. 674; Nelson v. Harrington, supra. is Leighton v. Sargent, 27 N. H. 460, 59 Am. Dec. 388; Tefft v. Wilcox, 6 Kan. 46; Graham v. Gautier, 21 Tex. Ill; Howard v. Grover, 28 Me. 97, 48 Am. Dec. 478; Jackson v. Burnham, 20 Colo. 532, 39 Pac. 577; Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Heath v. Glisan, 3 Or. 64; Pike v. Housinger, 155 N. Y. 201, 63 Am. St Rep. 655, 49 N. E. 760. 16 Same cases. See, also, Du Bois v. Decker, 130 N. Y. 325, 27 Am. St. Rep. 529, 29 N. E. 318; Burnham v. Jackson, 1 Colo. App. 237, 28 Pac. 250. 17 Pike v. Housinger, 155 N. Y. 202, 63 Am. St Rep. 655, 49 N. E. 1103. 18 Tefft v. Wilcox, 6 Kan. 46; Carpenter v. Blake, 50 N. Y. 696, Jackson v. Burnham, supra; Patten v. Wiggin, supra; West v. Martin, 31 Mo. 375, SO Am. Dec. 107. § 369 INJURY TO PERSONAL SECURITY. 726 Another point, though included in a statement of the foregoing rules, deserves special mention, with a citation of authorities, viz.: In determining the de- gree of care exacted and consequent negligence, re- gard must he had for the different schools of medi- cine and the different modes of treatment prevailing in such schools. To constitute a system of practice a school of medicine, it must have rules and princi- ples of practice in respect to diagnosis and reme- dies, which each member is supposed co observe in any given case. 19 § 369. Care Required of Specialists.— This is the age of specialists in medicine and surgery, and the gen- eral rules of duty usually applied to physicians and surgeons must be remolded to meet these conditions, but at best it is but a variation of the general rule of duty. The measure of duty of the general practi- tioner is that he possesses and will exercise the aver- age degree of skill possessed and exercised by mem- bers of his profession practicing in similar localities, and having regard to the advanced state of the pro- fession at the time of the treatment. A specialist, however, holds himself out as having greater knowl- edge and skill in his particular line than has the general practitioner, and the knowledge and skill to be exacted of him is measured, not by that knowl- edge and skill possessed and exercised by general practitioners in his locality, but by specialists. A specialist is bound to exercise that degree of skill and knowledge which is ordinarily possessed by physi- 19 Nelson v. Harrington, 72 Wis. 591, 7 Am. St Rep. 900, 1 L. R. Ann. 719, 40 N. W. 22S; Force v. Gregory, 63 Conn. 167, 38 Am. St. Rep. 371, 27 Atl. 1116; Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Bowman v. Woods, 1 G. Greene, 441; Williams t. Popple- ton, 3 Or. 139. 727 PHYSICIANS AND SURGEONS. § 370 cians who devote special attention and study to par- ticular diseases. 20 § 370. When Services are Gratuitous— Care not Varied. The measure of care and skill required of a physi- cian or surgeon in treating a patient gratuitously is a question that is presented to the mind of many physicians and surgeons doing service in public and charitable hospitals. There is perhaps nowhere in the law where the measure of care varies according to whether an act is done without consideration, ex- cept, perhaps, in the law of bailments. As appears elsewhere, even when a common carrier receives a passenger to be carried free, the, care to be exercised is not lessened. 21 So zealous is the law of life, that it exacts the same degree of care without regard to reward for ser- vices, and preservation of life depends much upon the skill and learning, and the proper exercise, of a physician or surgeon in many instances. So it is a well-settled rule that "the fact that the services of a physician or surgeon were rendered gratuitously does not affect his duty to exercise reasonable and ordi- nary care, skill, and knowledge, nor his liability to respond for damages resulting from his not exercis- ing them." 22 A surgeon or physician, therefore, who is the regular surgeon or physician of a hospital owes precisely the same duty with reference to the care he shall use to a charity patient as he does to a patient who pays him for his services, and is liable for neglect accordingly. 20 Baker v. Hancock (Ind. App.), 63 N. E. 323. 21 Ante, p. 345. 22 Du Bois t. Decker, 130 N. Y. 325, 27 Am. St. Rep. 529, 29 N. E. 313; Baird y. Gillett, 47 N. Y. 186; Peck t. Hutchinson, 88 Iowa, 320, 55 N. W. 511; Becker v. Janinski, 27 Abb. N. C. 45, 15 N. Y. Supp. 675; McNerins v. Lowe, 40 111. 209; Candless v. McWha, 22 Pa. St. 261. Shearman and Redfield on Negligence, section 604, states § 371 INJURY TO PERSONAL SECURITY. 728 § 371. Violations of Duty Considered— Surgical Opera- tions. — The determination of the question as to whether there has been a lack of due care and skill on the part of a surgeon in the performance of an operation, or not, is for the jury under appropriate instructions by the court looking to the facts of the case, and the testimony of expert surgeons. Courts and juries must depend almost entirely in many cases upon the medical profession, for as has been well stated, "the question whether a surgical operation has been unskillfully performed or not is one of sci- ence, and is to be determined by the testimony of skillful surgeons as to their opinion, founded either wholly upon an examination of the parts operated on, or partly upon such examination, and partly on information derived from the patient; or partly on such examination, partly on such information, and partly on facts conceded or proved at the trial; or partly on such examination and partly on facts con- ceded or proved at the trial." 23 Persons not physicians or surgeons are not com- petent witnesses to testify with reference to such a question, nor are juries competent judges without the aid of those skilled in the profession. What to an uneducated mind would appear to be a very un- important symptom, might be to the educated physi- cian and surgeon the symptom controlling his diag- nosis and subsequent operation. This imposes upon courts greater responsibility in supervising verdicts of juries who sometimes set up their views against those of skilled surgeons. 24 It would therefore seem from these observations that there would not be much chance of establishing that a physician and surgeon serving gratuitously is only liable for gross negligence, hut such a rule is not sound. 23 McOlelland's Civil Malpractice, 304. 24 See Tefft v. Wilcox, 6 Kan. 46. 72 9 PHYSICIANS AND SURGEONS. § 371 negligence on the part of an operating surgeon, if expert fellow-surgeons say upon the witness-stand that the course pursued by the operator charged with negligence, upon the facts as admitted or proved, was the course usually pursued by surgeons of ordinary knowledge and skill, and in the exercise of their best judgment. Perhaps there are exceptions to this rule. If a surgeon in making an abdominal operation loses a ring from his finger, leaving it in the body of a pa- tient, it would not require the testimony of a skilled expert to show that this was negligence. With ref- erence to leaving a sponge in the abdomen upon clos- ing up an incision, whether such an act on the part of an operating surgeon constitutes negligence is a question of some nicety. To the uneducated mind it would seem that there is scarcely any excuse for the omission of a surgeon to remove all sponges, but it is claimed that it is not always easy to locate every sponge used, and remove them when the proper time comes for their removal. We have a recent case in point decided by the su- preme court of Georgia. A surgeon performed an operation upon a charity patient in a city hospital, with the aid of the nurses and usual attendants. A small sponge or gauze pad was left in the abdomen. The usual practice in such cases, we may say, is for the nurse to hand the sponges to the surgeon, keep- ing count of the number used; the surgeon places the same inside the body of the patient, and takes them out again, handing them to the nurse, who is re- quired to again count them. Before closing the in- cision, the practice pursued in the leading hospitals of the country and by leading operating surgeons, when ready to close the incision, is to inquire of the attending nurse, whose duty it is to take and count the sponges upon their removal, how many sponges she has. Upon receiving answer to that inquiry the S 371 INJT7KY TO PEBSONAL SECUKITY. 730 surgeon again inquires of such nurse how many she needs, meaning how many have been used. If the surgeon finds upon answer to his last inquiry that all the sponges which he has used have been re- turned to the nurse, he closes the incision. If he finds that they have not been, he then looks for the missing sponges, and does not close the incision until he has found and returned to the nurse all the sponges used. And some eminent surgeons have printed charts, with the numbers of sponges, from which they are taken for use and to which they are returned when used. Thus we see that by this practice the responsibil- ity rests jointly upon surgeon and nurse, the former using the latter as his assistant to aid him in seeing to it that he does not leave a sponge in the body of the patient. This being the prevailing practice, the law should hold a surgeon responsible for neglect to pursue this course. But suppose we concede, for the purpose of devel- oping the true rule of action, in such cases, that some very competent skilled surgeons do not pursue this course, they do not ask the pertinent question of the nurse as to whether she has all the sponges, but, on the contrary, depend entirely upon the count made by the nurse, the duty being hers, not theirs ; would a court be justified in instructing the jury that if they found that this was the course usually pursued by operating surgeons of knowledge, skill and judgment, there could be no negligence? In the recent case referred to (Akridge v. Noble, 114 Ga. 949, 41 S. E. 78) the court instructed the jury that the surgeon must use ordinary care and skill in making the incision, in removing parts of the body, in closing up the incision, and due care in the use and handling the sponges or pads. In this case some of the witnesses testified that it was almost 731 PHYSICIANS AND SURGEONS. § 371 impossible for the surgeon to keep in his mind the exact number and placing of the sponges, and that he must rely upon the count of another, and that if the surgeon should stop at the critical moment to count sponges before closing the wound, the patient might die. The appellate court, speaking with reference to this, says, that "it would never do to turn juries loose to fix some arbitrary standard .... of how abdomi- nal surgery ought to be performed, regardless of how the surgeons themselves had found it safest and best to do." The jury returned a verdict against the plaintiff and for the surgeon, though not perhaps upon the testimony of the surgeons, which tended to show that the operating surgeon had used due care and skill. The law laid down by the reviewing court, however, is, that the law requires of the sur- geon that he must exercise care not only in placing the sponges, but also in removing the same, because their removal is a part of the operation. 25 We are safe in concluding, therefore, that as mat- ter of law it is negligence on the part of an operat- ing surgeon to fail to remove all the sponges from the body of a patient upon whom he performs an operation, without regard to what system he adopts to insure their safe removal. That he is the respon- sible person, and must adopt such a method of count- ing as will insure their removal. If the practice of some surgeons is to rely entirely upon the nurse in counting and seeing to it that all are removed, then under such a general charge to the jury that the sur- geon must use due care and skill in performing the operation and in the use and handling of the sponges, the jury would be justified in departing from the proposition which we first laid down in this discus- sion, viz., that juries in determining whether there 25 See Tucker v. Gillette, 22 Ohio C. C. 664. § 371 INJURY TO PERSONAL SECURITY. 732 is negligence in a given case must follow the testi- mony of skilled surgeons. Juries would be justified in using their own good sense and consider such an act negligence, notwithstanding such testimony. But a trial court should cover these points in the charge in unequivocal terms. Other illustrations may be found where juries may not be called upon to rely upon the testimony of experts. A physician may have knowledge of certain conditions which he conceals from the patient, and neither does anything for the relief of the patient nor informs him so that he can employ another. In such a case his negligence is plainly apparent. 26 So again where a physician fails to discover and remove a remnant of the afterbirth. 27 A majority of the cases requiring surgical treatment are of such a na- ture as to require the aid of expert surgeons in deter- mining whether or not there has been negligence on the part of the surgeon in a given case.. In reducing fractures, and the subsequent care which must be taken of the same, in the amputation of limbs, and the necessity therefor, no one except he be an expert can determine whether a surgeon has acted with prudence in a particular case. The law lays down the general rules governing the gen- eral duty of the surgeon and the jury with the aid of professional testimony determines whether the surgeon has come up to the full measure of his duty. In the performance of all operations upon the hu- man body, the surgeon must bring to the work that degree of knowledge, care, and skill necessary and usually exercised by surgeons of ordinary knowledge, care, and skill, with respect to the particular opera- tion called in question, in the locality of the residence of the surgeon whose conduct may be called in ques- 26 Lewis v. Dwinnell, 84 Me. 407, 24 Atl. 945. 27 Moratzky v. Wirth, 67 Minn. 46, 69 N. W. 480. 733 PHYSICIANS AND SURGEONS. S 371 tion. In addition to this, the surgeon must use his best judgment. This, as we have seen, is the general rule applicable to all occasions. To go into further particularization would lead us into the intricacies of surgery. But it is not diffi- cult for even lawyers and judges to learn the course, with its variations, usually pursued by surgeons in particular cases. The general formula of conduct may perhaps serve all purposes in judicial investiga- tions into the acts of surgeons. A recent case calls to our attention another important feature of duty. It is well understood that many operations are ex- tremely dangerous to life, and that certain precau- tionary measures must be adopted by the surgeon to guard against an anticipated injury. Reasonably prudent surgeons are required to foresee such in- juries as ordinarily prudent surgeons may reasonably expect to result, and to guard against the same. It is the very peril of physical injury which necessitates a code of precautions in diagnosis and treatment by physicians and surgeons. For instance, the precautions to render an opera- tion aseptic are adopted for no other reason than that every physician anticipates injury to the pa- tient as probable in their absence. "It is unreason- able to say that a physician may improperly and neg- ligently excoriate the lining of a delicate internal organ, and escape liability, by doubt as to whether he in the exercise of reasonable care, should have anticipated injury to the patient thereby. The re- lationship between such an act of the physician and the physical condition of the patient is so intimate that he must necessarily anticipate some physical effect as the result of such operation, and, of course, that such effect will be bad if his act be improper or improperly done." This is perhaps the first case where there is found a declaration of the necessity §§ 372, 373 INJUEY TO PEESONAL SECUEITY. 734 of this element of anticipation of injury from pro- fessional negligence in medical treatment or surgical operations. 28 § 372. Violations of Duty— Other Instances.— Failure to properly diagnose a case so as to enable the practi- tioner to give proper treatment constitutes negli- gence; 29 so, in case of a fracture, if a hand and arm is bandaged so tightly as to cause inflammation; 30 or where splints and bandages are improperly ap- plied 31 or where a dislocation of a shoulder is not properly reduced; 32 or failure to properly extend a broken limb so that a wound does not properly heal, 33 are instances of professional neglect where a phy- sician or surgeon is held liable. In determining a question of liability it must be remembered that a surgeon cannot be charged with a want of skill, "simply because he does not succeed in accomplishing the desired result. Human skill cannot relieve all infirmities, ills or injuries to which mankind is subject, and the only test, therefore, that can be applied is, whether in a given case the sur- geon has exercised reasonable skill and attention in his treatment of the patient who has placed himself under his care, and whom the latter has undertaken to treat." 34 § 373. Liability of Physician for Neglect of Another Sent in His Stead. — The ordinary rule that a party em- ploying a person who follows a distinct and independ- 28 Allen v. Voje (Wis.), 89 N. W. 924. 29 Gedney v. Kingsley, 16 N. Y. Supp. 792. 30 Link v. Sheldon, 136 N. Y. 1, 32 N. E. 696; Boldt v. Murray, 2 N. Y. St. Rep. 232. 31 Ritchey v. West, 23 111. 385. 32 Rowe v. Lent, 42 N. Y. St. Rep. 432. 33 Barnes v. Means, 82 111. 379, 25 Am. Rep. 328. 34 Rowe v. Lent, supra. 735 PHYSICIANS A.ND SURGEONS. §§ 374,375 ent occupation of his own is not responsible for the negligent or improper act of the other, is held applica- ble where a physician, while temporarily absent or when unable to attend a patient whom he has prom- ised to attend, sends another physician to wait upon such patient, thus holding that the physician who sends the other physician is not liable for the latter's neglect. 35 §374. Established Modes of Practice Must be Fol- lowed. — There are in many, matters coming within the general practice of medicine and surgery, established modes of practice and treatment in particular cases, and the law very wisely requires that "some stand- ard by which to determine the propriety of treat- ment must be adopted; otherwise experiment will take the place of skill, and the reckless experimental- ist the place of the educated, experienced practi- tioner." 3e Before it can be said that there is any es- tablished mode of treatment, it must appear that ac- cording to the general consensus of opinion of medi- cal men, that it is so considered, and is followed by the ordinary practitioner. It matters not then how much skill a physician or surgeon may have, if he does not follow the established mode of treatment in the particular case, this fact may be taken by the jury as evidence of the want of such skill. 37 §375. Consent of Patient to Operation.— The ques- tion of the necessity of consent on the part of one submitting to an operation has not received much consideration at the hands of the courts of this coun- try or in England. The time has been that a surgi- 35 Meyers v. Holborn, 58 N. J. L. 193, 55 Am. St. Hep. 606, 33 Atl. 389. 36 Carpenter v. Blake, 60 Barb. 488; Hesse v. Knippel, 1 Brown (Mich.), 109; Winner v. Lathrop, 67 Hun, 511, 22 N. Y. Supp. 516. 37 Jackson v. Burnham, 20 Colo. 532, 39 Pac. 577. § 375 INJURY TO PERSONAL SECURITY. 736 cal operation was regarded in a most unfavorable light, and even now when they are of frequent oc- currence, there is a strong prejudice against them existing in the minds of many. It is an undisputable fact that when an abdominal or other like serious operation is to be performed, there is no certainty as to whether the patient will live through it or not. And again, though a surgeon may advise a patient that such an operation is necessary to save his life, there can be no certainty that this will be the result. Therefore, between these two alternatives, the pa- tient must be the final arbiter as to whether he shall take his chances with the operation, or take his chances of living without it. Such is the natural right of the individual which the law recognizes as a legal right. Consent, therefore, of an individual must be either expressly or impliedly given before a surgeon may have the right to operate. The courts, so far as we discover the question to have been considered, are inclined to hold that when a person submits to acts of preparation, which nat- urally suggest that an operation is to be performed, together with the advice of the surgeon that it is nec- essary, and when there is a voluntary submission on the part of the patient to the operation, this con- stitutes implied consent. This is as it should be. A patient naturally shrinks from an operation, nat- urally protests against it, but generally tacitly ac- quiesces and submits, which should constitute the necessary consent. If there is voluntary submission to an operation by a patient, consent will be presumed, unless such patient is the victim of a false and fraudulent mis- representation, as to the kind of an operation to be performed. 38 But a surgeon cannot be held for neg- 38 State v. Housekeeper, 70 Md. 162, 70 Am. St. Rep. 340, 16 Atl. 382. 737 PHYSICIANS AND SURGEONS. § 375 lect if the condition proves to be different from his diagnosis, if in making the same and advising an op- eration, he exercises such reasonable skill and knowl- edge and judgment as would have been exercised un- der similar conditions and circumstances, and in the locality, by a surgeon of ordinary skill and knowledge and judgment. A much more serious question is presented where a patient is in such condition as to be incapable of giving consent to an operation which may be deemed necessary to save his life. Frequently there are in- stances of this kind in emergency cases, in cases of accident, where a patient is found in an unconscious condition, is rushed to a hospital in an ambulance, having no relatives present, and the surgeon called in, in the reasonable exercise of knowledge and skill and using his best judgment, deem® it necessary, to save his life, to perform an operation, which is ac- cordingly done without the consent of anyone. If it can be said that merely because the patient did not consent in such a case, that he, in case he survives, can maintain an action against the surgeon, then the rule that consent is necessary would be unjust in its operation. This would be the logical result in some cases if we were to regard the rule requiring consent as necessary in all cases. We may be pardoned for referring to a case com- ing within our experience. 39 39 Awoman consulted her family physician, who advised her that an operation was necessary, and that she should go to a hospital and have the surgeon of the hospital treat her. The surgeon, upon examination in the presence of physicians and nurses, advised that an abdominal operation was necessary to save her life. She sub- mitted to the preparation without protest, the operation was suc- cessful, she became a well woman, but, finding that she was with- out the power of procreation, declaring that the operation was with- out her consent, brought suit against the surgeon, the sole ground being the want of consent, it being the opinion of the best sur- Torts, Vol. I— 47 § 375 INJURY TO PERSONAL SECURITY. 73S In an unreported English case, Beatty v. Culling- geons that the course pursued was the only one to be followed in the treatment of such a case surgically. The court, Williams, J., in the charge correctly stated the law, which, because of the scarcity of legal discussion upon this point, we feel justified in here inserting: "Did the defendants .... without the consent of the plaintiff unlawfully perform upon said plaintiff the operation complained of? If you should find that said operation was per- formed, you will then determine whether or not it was with the consent of the plaintiff. She alleges that it was without her con- sent, and it is incumbent upon her to prove this charge. The con- sent of a person submitting to an operation is presumed, unless he was the victim of a false and fraudulent misrepresentation. In this case, unless the evidence shows that C. was misled by a false and fraudulent misrepresentation as to her physical condition and the necessity of the operation, she is presumed to have consented to the performing of Such operation. But such false and fraudu- lent misrepresentation, if relied upon, is a material fact to be estab- lished by proof the same as any other material fact The con- sent of the plaintiff was necessary before the defendants .... could lawfully perform the operation which it is claimed was per- formed. If such consent was not given, then said defendants had no right to operate in the manner complained of. But if O. could not appreciate and know her condition, and if she placed herself in the care and hands of said defendants authorizing them to do whatever seemed reasonable from their knowledge and skill as physicians and surgeons, to save her life or to protect her from continued and serious illness, such acts on her part may be taken as her consent to the performing of such operation as was, in the exercise of ordinary surgical care and skill, considered reason- ably necessary, and in that event it will not be necessary for you to find that she gave express consent If you find that the consent of plaintiff was given for an operation, which was termed the scraping of the womb, and that she did not consent to the operation which is claimed to have been performed, then the con- sent to the scraping of the womb cannot be interposed to excuse said defendants or to justify them in the performing of some other different operation. In determining whether or not the consent of the plaintiff was given for the performing of the operation charged you may consider the testimony concerning conversations between the plaintiff and said defendants, as well as the extent and nature of the preparation made, with the knowledge and understanding of the plaintiff, for the performing of such operation. The consent of relatives or friends of plaintiff was not necessary to authorize the defendants .... to perform said operation": Cuthreil v. 739 PHYSICIANS AND SURGEONS. §§376,377 worth, 40 the question of consent was involved in the case of an unmarried woman, who consulted an emi- nent surgeon. She claimed that she gave instruc- tions that if the ovaries were found diseased that he must not remove them, to which the surgeon replied, "You must leave that to me," which plaintiff denied hearing. The court charged the jury that she tacitly- consented to the operation. § 376. Same— Who Must Consent.— The question as to who must consent to the performance of an operation is one of more consequence. It is decided that consent of the husband is unnecessary in case of an operation upon the wife. 41 But where an operation is to be performed upon an infant or person non compos mentis, who is to give consent is not decided. One writer expresses the view that the consent of the parent should not be necessary be- fore operating upon a child of sufficient age and dis- cretion to understand the nature and effect of the operation. 42 But it seems that there are considera- tions which make it the right and the duty to give or withhold his consent under most circumstances. The parent is the guardian of the person, has the right to the control of his person, is under the obliga- tion to furnish him the necessaries of life, including medical or surgical treatment. § 377. Physician or Surgeon of Hospital not Its Agent. It is customary for all hospitals, public, charitable, or those conducted under municipal authority, to have Protestant Hospital et al., Franklin County, Ohio, Common Pleas Court, unreported. 40 Q. B. Div.; 44 Cent. L. J. 153, editorial; Taylor on Law Re- lating to Physicians, 313. 41 State v. Housekeeper, 70 Md. 162, 70 Am. St. Rep. 340, 16 Atl. 382. 42 Taylor on Law Relating to Physicians, 315. § 377 INJURY TO PEESONAL SECURITY. 740 a hospital corps of regular physicians or surgeons, who hold themselves in readiness to treat patients coming into the hospitals, whether charity or pay pa- tients. In the case of charitable hospitals, the rule, as shown elsewhere, 43 is, that it is not liable for any neglect of nurse or physician in the treatment of a patient, pay or charity. In the case of the charity patient, the physician is none the less liable, because the hospital is relieved, because of the fact that the physician is the regular physician or surgeon of the hospital. There is no relation of master or servant, nor principal and agent, and while we find no decided case upon the point, the controlling principle does not seem different from that applied where an em- ployer, as a railway company or a manufacturer, se- lects a regular surgeon to attend all injured em- ployees, the company cannot, under the doctrines of agency, be held responsible for the neglect of the physician or surgeon, if it has exercised proper care in his selection. 44 A manufacturing or railway company cannot be expected to be possessed of sufficient knowledge and skill as to be able to supervise the acts of skilled and learned physicians or surgeons, and hence cannot be held liable for their acts. No more can be expected of a hospital. And so the converse ought to be, and undoubtedly is, true. If there is no responsibility on the part of the hospital for the acts of the physi- cian or surgeon, because of no affinity between them as to their acts, there certainly can be no immunity on the part of a regular physician of a hospital mere- ly because the latter is not responsible. 43 Ante, sec. 110. 44 Laubheim v. De Koninglyke N. S. Co., 107 N. Y. 228, 1 Am. St. Rep. 815, 13 N. E. 781; Pittsburgh etc, R. Co.. v. Sullivan, 141 Ind. 83, 50 Am. St. Rep. 313, 40 N. E. 138; Quinn v. Railroad, 94 Tenn. 713, 45 Am. St. Rep. 767, 30 S. W. 1036; Myers v. Holborn, 58 N. J. L. 193, 55 Am. St. Rep. 606, 33 Atl. 389. 741 PHYSICIANS AND SURGEONS. § 378 And furthermore, the general doctrine that a party who employs a person who follows a distinct and in- dependent occupation of his own is not responsible for negligent acts of the latter, 43 may be resorted to to show that the physician or surgeon alone is re- sponsible, and hence may not claim immunity. §378. Contributory Negligence of Patient— Effect — The law of contributory negligence as applied to cases of malpractice is slightly different in its opera- tion than in other cases of negligence. In ordinary cases, contributory negligence of a plaintiff to have a. controlling effect must operate as an efficient cause of the injury complained of. It must have a causal connection with the act complained of. In actions of malpractice, an act of neglect on the part of the patient may occur concomitantly with the acts of neg- lect on the part of the physician, but not previously thereto. It may also occur subsequent to the negli- gence of the physician or surgeon. Whenever the negligence of the patient occurs subsequent to the ^negligence of the physician or surgeon, and contrib- utes substantially to the injury of which the patient complains, then it may be shown, not strictly as a de- fense, not for the purpose of destroying his right, but by way of mitigation of damages. 46 The rule is sometimes not stated with that accur- acy with which it ought to be applied from the nature of the cases. In Missouri, it is said with reference to its application to cases of this character: "The rule in such cases seems to be that if the plaintiff substan- tially contributed to the injury by his improper or negligent conduct, he cannot recover; but if the in- jury was occasioned by the improper or negligent con- 45 Meyers v. Holborn, supra. 46 Du Bois v. Decker, 130 N. Y. 325, 27 Am. St. Rep. 529, 29 N. E. 313; Lawson v. Conaway, 37 W. Va. 159, 38 Am. St. Rep. 17, 16 S. E. 564; Sanderson v. Holland, 39 Mo. App. 233. § 378 INJUR? TO PERSONAL SECURITY. 742 duct of the defendant, and the plaintiff did not sub- stantially contribute to produce it, then the latter would be entitled to the verdict." 47 In Ohio, it is e aid that "if his patient neglects to obey the reason- able instructions of the surgeon, and thereby contrib- utes to the injury complained of, he cannot recover for such injury." 48 Properly applied to appropriate facts as the rule is stated in these two states, no objections can be urged, perhaps. In the Missouri case, the general treatment of a limb which had been broken was com- plained of, and not merely the adjustment of the bones in the first instance. In such case, the neglect of the patient in following instructions as to the treat- ment would operate against recovery on that ground, but not as against the neglect in the setting. So is the rule stated in the Ohio case sound as applied to the facts of the case, the complaint being that the pa- tient neglected to follow instructions as to the care of a swollen and diseased foot and ankle. Where, however, the contributory negligence com- plained of is so far removed from the negligence of the physician or surgeon complained of, or is subse- quent thereto, the neglect of the patient consisting in the lack of care will not defeat the action, but only operate by way of mitigation. 49 But where the neg- lect of the patient is contemporaneous with that of the physician or surgeon, then it operates as a full defense. 50 If a patient is delirious and cannot be made to understand proposed treatment, the surgeon must then co-operate with the patient's immediate family, and if the latter refuse to allow the treatment the surgeon is exonerated. 51 47 West v. Martin, 31 Mo. 375, 80 Am. Dec. 107. 48 Geiselman v. Scott, 25 Ohio St. 86. 49 Ante, note 46, cases. bo Xoung v. Mason, 8 Ind. App. 264, 35 N. E. 521. 51 Littlejohn v. Abogart, 95 111. App. 605. 743 PHARMACISTS. i 379 § 379. Pharmacist— Duties and Liabilities.— The pharmacist occupies a very responsible position in every community, because of the fact that he deals in medicines and poisonous drugs whose properties, and often the very names, are unknown to those to whom he sells them and it requires great skill and knowledge to be able to handle them carefully and properly. If he gives them in certain quantities or combinations they may preserve health, but should he make a mistake, it is apt to endanger life. The responsibility may be divided between the physician and druggist, and still the latter should know not only the names, but the qualities of all the medicines which he handles, especially whether they are of a dangerous character, and to this end the state very properly in the exercise of its police power prescribes certain regulations to compel proper qualifications of persons who engage in the business. At common law it is considered that a druggist would only be lia- ble for his mistakes in selling one drug for another, and hence not liable when he fills a prescription ac- curately according to its terms, which turns out dis- astrously. 51 * The measure of care required of apothecaries as ex- pressed in some of the decisions is that degree of care which is "proportionate to the gravity of the in- jury which would result from a want of care," or com- mensurate with the danger involved; the skill em- ployed must correspond with that superior knowl- edge of the business which the law requires. 52 They are required to be extraordinarily skillful, and to use the highest degree of care known to practical men to Bia Ray v. Burbank, 61 Ga. 505, 1 Am. Rep. 103. 52 Beckwith v. Oatman, 43 Hun, 265; Walton v. Booth, 34 La. Ann. 913; Allan v. State, 132 N. Y. 91, 28 Am. St. Rep. 556, 30 N. E. 482. § 379 INJURY TO PERSONAL SECURITY. 744 prevent injury from the use of drugs, poisons or medi- cines. 53 So it is held that such persons are held lia- ble for the very slightest negligence. 54 In one state they are held to the observance of only ordinary care. 55 Thus, druggists have been held for negligent mistakes in selling belladonna for extract of dande- lion, 56 and laudanum for rhubarb, 57 and spirits of camphor for camphor water. 58 and morphine for qui- nine, 59 and carbolic acid for spirits of niter, 60 and sulphate of zinc for epsom salts, 61 and tartaric acid for Eochelle salts. 62 Some authorities conclude from the fact of a mistake being made that there is conclu- sive evidence of a want of due care, and that the apothecary cannot escape liability by showing that he has been extraordinarily careful in general. It is said, too, that he must know the properties of all of the drugs, and be able to distinguish between them, and that he must qualify himself to be able to attend to his business of compounding drugs and vending them so that one drug may not be sold for another, and that when a prescription is presented the proper medicine, and no other, shall be used in mixing and compounding it. And that he cannot escape a lia- bility upon the mere pretext that it was a pure acci- 63 Howes v. Rose, 13 Ind. App. 674, 55 Am. St. Rep. 251, 42 N. E. 303. S4 See cases ante, notes, 52, 53. 65 Simonds v. Henry, 39 Me. 155, 63 Am. Dec. 611. 56 Smith v. Hayes, 23 111. App. 244; Thomas v. "Winchester, 6 N. Y. 397, 57 Am. Dec. 455. 57 Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298. 58 McCubbin v. Hastings, 27 La. Ann. 713. 59 Brunswig v. White, 70 Tex. 504, 8 S. W. 85. 60 Hall v. Rankin, 87 Iowa, 261, 54 N. W. 217. 61 Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392; Walton v. Booth, 34 La. Ann. 913. 62 Hawes v. Rose, 13 Ind. App. 674, 55 Am. St. Rep. 251, 42 N. E. 303. 745 PHARMACISTS. § 380 dent, and that he exercised extraordinary care. This, therefore, approaches an absolute liability. 63 The better rule appears to be that the gist of all actions against druggists for damages is the want of care and against the rule of absolute liability; that while the very fact of a mistake may be evidence of a want of due care, it cannot dispense with a proof of actual negligence. 04 The general rule that the mis- take or negligence of a pharmacist must be the proxi- mate cause of the injury to hold him liable applies. 65 § 380. Same Continued— Wholesaler and Retailer — Their Liability. — The question of the liability of manu- facturer and retailer in the handling of dangerous ar- ticles, including poisons, has been incidentally re- ferred to at a former section; 66 and no further refer- ence will be made to the subject here. The duty of the druggist is not alone to the person to whom he sells drugs, but it extends to all persons to whom his negligence has been the proximate cause of injuries without any contributory negligence on their part. 67 Consequently, it is held that the wholesaler who sells to the retail druggists a bottle of belladonna labeled "dandelion" has been held liable to one to whom the retailers sell some of the contents thereof as extract of dandelion. 68 Of course, the wholesaler cannot be held liable if the mistake is not the proximate cause of the injury, as, for example, in the sale of sulphide of antimony for black oxide of manganese, both being 63 Fleet v. Hollencamp, 13 B. Mon. 219, 56 Am. Dec. 563; Hams- ford v. Payne, 11 Bush, 380. 64 Brown v. Marshall, 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392; Beckwith v. Oatman, 43 Hun, 265. 65 Rabe v. Sommerbeck, 94 Iowa, 656, 63 N. W. 458. 66 Ante, sees. 7, 244. 67 Peters v. Johnson (W. Va.), 41 S. E. 190. 68 Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Peters v. Johnson (W. Va.), 41 S. B. 190. § 380 INJUEY TO PERSONAL SECURITY. 746 harmless drugs, where the injury results from the combination of the two drugs by the purchaser, which forms an explosive. 69 On the other hand, the mistake on the part of a wholesaler does not excuse the re- tailer who is negligent in not discovering the real na- ture of the drug he is selling. This rule imposes one of the most important duties upon the druggist in knowing and ascertaining the nature of all the drugs which he handles. 70 The retail druggist is also liable for the negligent act of his clerk the same as in any other occupation or business. 71 There is no liability on the part of the druggist who recommends a pre- scription and fills the same accurately, where he is guilty of no bad faith, and there is nothing dangerous to life in the medicine; 72 nor for the mistake of one who helps himself to a drug gratuitously, even though his mistake is caused by the fact that the druggist himself made the same mistake; 73 nor for refusal to fill a prescription. 74 In a recent case arising with re- spect to the sale of patent or proprietary medicine furnished by the compounder to druggists, it is held that the retailer is not required to analyze the con- tents of each bottle or package, and cannot be charged with negligence by delivering the same to a consumer with the label of the patentee on it, for any injury occurring to the purchaser from its use, in this case death resulting. 75 69 Davidson v. Nichols, 11 Allen, 514. 70 Hawes v. Rose, 13 Ind. App. 674, 55 Am. St. Rep. 251, 42 N. E. 303. 7i Hargrave v. Vaughn, 82 Tex. 347, 18 S. W. 695; Brown v. Mar- shall, 47 Mich. 576, 41 Am. Rep. 728, 11 N. W. 392; McCubbin v. Hastings, 27 La. Ann. 713. 72 Ray v. Burbank, 61 Ga. 505, 34 Am. Rep. 103. 73 Gwynn v. Duffield, 66 Iowa, 708, 55 Am. Rep. 286, 24 N. W. 523; S. 0., 61 Iowa, 64, 47 Am. Rep. 803, 15 N. W. 594. 74 Tarleton v. Legart, 46 La. Ann. 1368, 49 Am. St. Rep. 353, 16 South. 180. 75 West v. Emanuel, 198 Pa. St. 180, 47 Atl. 264. V47 PHARMACISTS. § 381 § 381. Same Continued— Contributory Negligence — The rule of contributory negligence applies if the pur- chaser himself is guilty of contributory negligence as a proximate cause of the injury in which case there can, of course, be no recovery. 70 76 Gwynn v. Duffleld, 61 Iowa, 64, 47 Am. Rep. 803, 15 N. "W. 594; Wohlfahart v. Beckert, 92 N. Y. 490, 44 Am. Rep. 406; Davis v. Guarnieri, 45 Ohio St. 470, 4 Am. St. Rep. 548, 15 N. B. 350. INJUEY TO EIGHT OF EEPUTATION. 748 CHAPTEE XXVI. INJUEY TO CONSTITUTIONAL EIGHT OP EEPUTA- TION— BY SLANDBE AND LIBEL. § 382. Slander and libel, defined! and explained. § 383. Defamation defined. § 384. There must be publication. § 386. Same — What constitutes publication. § 386. Manner and form of publication. § 387. Publication continued— Defamatory matter must be under- stood and heard by third person. § 388. Liability of persons republishing or repeating. § 389. Reputation and character distinguished. § 390. Defamatory matter must be false to give rise to a civil action— Truth as a defense. § 391. Same— Proof of truth. § 392. Injurious representations— Classes — Per se— Per quod. . § 393. What words are actionable per se. § 394. Subject further considered. § 395. Same continued— Imputing contagious disease. § 39G. Words actionable per se— Spoken of one in his occupation. § 397. Words actionable per quod— Special damages. § 398. Particularity of allegation and proof when special damage must be shown. § 399. Words defamatory per se in libel. § 400. Excuses— Privileges — Absolute and qualified— Classification- General doctrine. . § 401. Absolute— Qualified privilege distinguished. § 402. Privileged through duty to public— Legislature. § 403. Same— Judicial bodies. § 404. Same— Executive communications. § 405. Same — By the public— To public officials. § 406. Same— Quasi public— Churches, lodges, etc. § 407. Privileged cases— Private— To self— Defending attack. § 408. Privileged casesi — To persons having interest in subject mat- ter — Confidential or business affair. J 409. Freedom of press— Newspaper privilege— Specially of re- ports. 749 SLANDER AND LIBEL. § 382 § 410. Privileged cases in libel— Newspaper comment upon acts of public officials. § 411. Same — Comments upon qualifications of candidates for of- fice. § 412. Malice as an element of slander and libeL § 382. Slander and Libel— Defined and Explained. — ■ A good reputation is of great value in the eyes of the law, and is jealously guarded. A man's reputation and character are deemed good by presumption of law, and if attacked in any unwarranted manner, their injury is redressed to the fullest extent, and their assailant punished with the severest penal- ties. The attack on one's reputation may be by direct assault, as in slander and libel, or in an in- direct manner by malicious prosecution. The latter subject is discussed in another chapter, 1 and the others are the subject of the present discussion. Slander and libel may be broadly denned as def- amation of the reputation of persons, the first by oral or fugitive utterances, the second by means of a permanent nature. The distinguishing feature has often been said to be that slander appeals to the ear and libel to the eye, but the raised letters of the blind which are read by touch would undoubtedly be libel, and a phonographic record which may be re- peatedly used should also be libel. On the other hand, the sign language of the deaf and dumb ap- peals to the eye, but is not on that account libel. The true distinction in regard to form is as to whether it is permanent or evanescent. As to what matter is libelous and what is slander- ous, the courts have recognized a distinction which will be discussed later on in another section. 2 In this connection, however, it has been said in a gen- i Chapter 27. 2 Post, sec. 392. § 382 INJTJEY TO EIGHT OF EEPUTATION. 750 eral way that "libel is a censorious or ridiculing writing, picture, or sign made with a mischievous and malicious intent toward government magis- trates or individuals" 3 and that "any publication the tendency of which is to degrade and injure another person, or to bring him into contempt, hatred, or ridicule, or which accuses him of a crime punishable by law, or of an act odious and disgrace- ful in society is a libel." 4 Also, slander is defined as the imputation: 1. Of some temporal offense for which the party might be indicted and punished in the temporal courts; 2. Of an existing contagious disorder tending to exclude the party from society; 3. Of an unfitness or inability to perform the duties of an office of honor; 4. Words prejudicing a person in his lucrative profession or trade; 5. Any untrue words occasioning actual damage. 5 Probably the most comprehensive classification, and the one from which the materials for all subsequent attempts have been drawn, is that of Justice Clifford in Pollard v. Lyon, 8 as follows: "1. Words falsely spoken of a person which impute to the party some criminal offense involving moral turpitude, for which the party, if the charge is true, may be in- dicted and punished; 2. Words falsely spoken of a person which impute that the party is infected with some contagious disease, where, if the charge is true, it would exclude the party from society; 3. Defama- tory words falsely spoken of a person which impute to the party unfitness to perform the duties of an office or employment of profit, or want of integrity 3 Alexander Hamilton, arguendo; People v. Crosswell, 3 Johns. Cas. 354, cited in Steele v. Southwick, 9 Johns. 214; Cooper v. Greeley, 1 Denio, 347. 4 Story, J., in Dexter v. Spear, 4 Mason, 115, Fed. Cas. No. 3867. 5 Hilliard on Torts, 243. 6 91 Vt. 225. 751 SLANDER AND LIBEL. 8§ 383,384 in the discharge of the duties of such an office or em- ployment; 4. Defamatory words falsely spoken of a party which prejudice such party in his or her pro- fession or trade; 5. Defamatory words falsely spoken of a person which, though not in themselves actionable, occasion the party special damage." § 383. Defamation Defined.— Defamation is the generic term embracing all public acts which tend to injure the reputation of persons and things. "By defamation is understood a false publication calcu- lated to bring a person into disrepute. By common law it has been divided into two classes: 1. Written defamation — libel; 2. Oral defamation — slander." T Defamation may be divided into four elements, viz.: (1) A false representation, which (2) tends to injure the reputation of a person or thing, per se or per quod, which (3) is maliciously made and (4) pub- lished in some manner not privileged. § 384. There Must be Publication.— Mere thought or mental action alone has not yet been deemed action- able. A person may form what opinion he chooses in regard to another's character, and so long as it is kept in his mind no actionable injury has been done. It is only when such thought or mental action is ex- pressed by a physical act that it becomes capable of inflicting injury cognizable by law, and only when it is expressed to others that the result becomes the subject for judicial investigation. So it is only when this opinion is communicated to others that an action will lie, and only when it occasions actual or presumptive damage that a recovery may be had. Hence this communication or publication, the ex- pression of thought concerning one's character to 7 Newell on Slander and Libel, 32, 33. I 385 INJURY TO EIGHT OF REPUTATION. 752 another, is an essential element in the wrong of def- amation without which no action will lie. Kefusal of an employer to furnish a statement, upon request, as to the service or conduct of a dis- charged employee, and silence in respect thereto, cannot be considered as in the nature of slander, even though the effect is to prevent the person from obtaining employment. 8 § 385. Same— What Constitutes Publication.— As has been shown before, defamation is the injury to reputation, or the opinion of others in regard- to their character, and not the injury to his actual character, or to his own estimate of it. 9 Publica- tion, in the law of libel and slander, means the trans- mission of ideas and thoughts to the perception of a person other than the parties to the suit. Hence a communication which only reaches the one complain- ing thereof, and no other, is not damaging to his reputation and does not constitute defamation. 10 But it is not necessiary that the publication be made to any large numbers; some damage flows if the defamatory matter is published to but one per- son, other than the one complaining. 11 The dicta- 8 New York etc. R. R. Co. v. Schaffer, 65 Ohio St. 414, 87 Am. St. Rep. 628, 62 N. E. 1036; Cleveland etc. Ry. Co. v. Jenkins, 174 111. 398, 66 Am. St. Rep. 296, 51 N. E. 811. 9 Ante, sec. 383. See, also, sees. 387 and 389. 10 Sheffill v. Van Deusen, 13 Gray, 304, 74 Am. Dec. 632; Spaits v. Poundstone, 87 Ind. 522, 44 Am. Rep. 773; Fonville v. McNease, Dud. (S. C), 303, 31 Am. Dec. 556; Wilcox v. Moon, 64 Vt. 450, 33 Am. St Rep. 936, 24 Atl. 244; Comerford v. West End St. Ry. Co., 164 Mass. 13, 41 N. E. 59; M'ielenz v. Quasdorf, 68 Iowa, 726, 28 N". W. 41; Prank v. Kaminsky, 109 111. 26: G-ambrill v. Schooley, 93 Md. 48, 86 Am. St. Rep. 414, 48 Atl. 730. > li Gambrill v. Schooley , 93 Md. 48, 86 Am. St. Rep. 414, 48 Atl. 730. In Pullman v. Hill (1891), 1 Q. B. D. 529, a defamatory letter was dictated by the managing director of a corporation to a clerk. In Owen v. Ogilvie Pub. Co., 32 App. Div. 465, 53 N. Y. Supp. 1033, 753 SLANDER AND LIBEL. § 386 tion of a libelous letter to a stenographer is a suffi- cient publication. 12 § 386. Manner and Form of Publication.— The ques- tion as to whether the defamation is slander or libel depends upon the manner of publication, 13 but so far as publication itself is concerned, it does not matter in what form the defamation is communicated, so long as it is or may be presumed to be understood by those who receive it. Thus it may be published through words on an envelope addressed to a person indicating that he is a delinquent debtor, 14 or by de- livering a libelous telegram to a telegraph com- pany, 16 or the telegraph company may publish the libel by sending it through its agencies, the company being liable. 16 It may be published by dictating the libelous statement or causing it to be written in a letter, 17 or by sending a defamatory letter to one who is compelled to have another read it to him on a letter was dictated by the manager of a corporation to its stenographer, and they were considered as servants of a common master, and! that the stenographer should not be regarded as a third person. 12 Adams v. Lawson, 17 Gratt. 250, 94 Am. Dec. 455; Luick v. Driscoll, 13 Ind. App. 279, 55 Am. St. Rep. 224, 41 N. E. 463; Ses- Jer v. Montgomery, 78 Cal. 486, 12 Am. St Rep. 76, 21 Pac. 185; Shaw v. Sweeney, 2 G. Green, 587; Holmes v. Holmes, 133 Ind. 386, •32 N. E. 932; Sylvis v. Miller, 96 Tenn. 94, 33 S. W. 921; Desmond v. Brown, 33 Iowa, 13; Shenck v. Shenck, 20 N. J. L. 208; Gambrill V. Schooley, 93 Md. 48, 86 Am. St. Rep. 414, 48 Atl. 730. 13 Ante, sec. 382. 14 Muetze v. Tuteur, 77 Wis. 236, 20 Am. St. Rep. 115, 46 N. W. 123; State v. Armstrong, 106 Mo. 395, 27 Am. St Rep. 361, 16 S. W. 604. 15 Monson v. Lathrop, 96 Wis. 386, 65 Am. St. Rep. 54, 71 N. W. 596; Peterson v. Western Union Tel. Co., 72 Minn. 41, 71 Am. St. Rep. 461, 74 N. W. 1022; 75 Minn. 368, 74 Am. St. Rep. 503, 77 N. W. 985. 16 Peterson v. Western Union Tel. Co., supra. 17 State v. Mclntire, 115 N. C. 769, 20 S. E. 721; Adams v. Law- son, 17 Gratt. 250, 94 Am. Dec. 455; Gambrill v. Schooley, 93 Md. 48, S6 Am. St. Rep. 414, 48 Atl. 730. Torts, Vol. 1-^8 § 387 INJUKY TO EIGHT OF REPUTATION. 754 account of illiteracy, 18 or by displaying and calling attention to pieces of defective work indicating that an architect and contractor are incompetent, 19 or by handbills declaring that the one libeled is a "dead beat," 20 or by entries in records and books of asso- ciations or corporations, 21 or on a hotel register, 22 or by lists of discharged employees indicating opposite each name the reasons for his discharge. A positive assertion of a charge is not necessary to constitute a writing libelous, but it may be made in the form of insinuation, allusion, irony, or ques- tion. 23 § 387. Publication Continued— Defamatory Matter Must be Understood and Heard by Third Person. — It is a familiar rule that the defamatory matter which is spoken or written must be understood by those to whom it is communicated. So if it is made in a foreign language which is not understood by those to whom it is communicated, no damage has been done, and no action lies, 24 and also if one who had an opportunity to hear the slander or see the libel did not do so in fact, it will not be held to be pub- lished as to him. 25 The presumption is that the de- famatory matter was expressed in the English lan- guage, unless the contrary is made to appear; if in a 18 Allen v. Worthan, 89 Ky. 485, 13 S. W. 73. 19 Dennis v. Johnson, 42 Minn. 301, 44 N. W. 68. 20 Woodling v. Knickerbocker, 31 Minn. 268, 17 N. W. 386. 21 Maynard v. Fireman's F. Ins. Co., 34 Cal. 48, 91 Am. Dec 672; Id., 47 Cal. 207; Shelton v. Nance, 7 B. Mon. (Ky.) 128. 22 State v. Fitzgerald, 20 Mo. App. 408. 23 Wofford v. Meeks, 129 Ala. 349, 87 Am. St. Rep. 66, 30 South. 625. 24 Hustert v. Weiner, 27 Iowa, 134; Sullivan v. Sullivan, 48 111. App. 435; Steketee v. Kimm, 48 Mich. 322, 12 N. W. 177; Mielenz v. Quasdorf, 68 Iowa, 726, 28 N. W. 41; Kiene v. Ruff, 1 Iowa, 482. 26 Sheffill v. Van Deusen^ 13 Gray, 304, 74 Am. Dec. 632; Fon- vill v. McNease, Dud. (S. C.) 303, 31 Am. Dec. 556. 755 SLANDEB AND LIBEL.. § 388 foreign language, it mu^t be set out in the pleadings as it was spoken or written, followed by a transla- tion into English. 26 § 388. Liability of Persons Republishing or Repeat- ing. — Every act, by which defamatory matter is brought to the notice of some one other than the one communicating it, is a publication, whether the latter is the originator or author of the defamation or not. His act has increased its publicity and he is responsible for that act. So not only the author of a scandal or libel, but everyone who republishes or repeats it, with actual or presumptive knowledge of its character, is liable for the damage proximately resulting from his acts. 27 As between the one publishing the defamation and the one defamed, it makes no difference whether the act be an original publication, or a republica- tion, or a repetition except that some courts on the doubtful ground that the author is liable for all the consequences of his acts, hold that a repetition upon authority is not actionable. 28 But between the author and the person defamed a distinction is made between republication and repetition, the former being liable for every republication of his defamation but not for every repetition. By republication is meant a subsequent com- munication of the defamatory matter to others 26 Heeney v. Kilbane, 59 Ohio St 499, 53 N. E. 262. 27 Evans v. Smith, 5 T. B. Man. 363, 17 Am. Dec. 74; Johnson v. St Louis Dispatch, 65 Mo. 539, 27 Am. Rep. 293; Dole v. Lyons, 10- Johns. 447, 6 Am. Dec. 340; Haines v. Campbell, 74 Md. 158, 28 Am. St Rep. 240, 21 Atl. 702; Runkle v. Meyers, 3 Yeates, 518, 2 Am. Dec. 393; Brewer v. Chase, 121 Mich. 526, 80 Am. St Rep. 527, 80 N. W. 575. 28 Haynes v. Leyland, 29 Me. 233; Easterwood v. Quin, 2 Brev. 64, 3 Am. Dec. 700; Tatlow v. Jaquett, 1 Harr. 333, 26 Am. Dec. 399; Miller v. Kerr, 2 McOord, 285, 13 Am. Dec. 722; Church v. Bridgman, 6 Mo. 190. § 388 INJURY TO EIGHT OF REPUTATION. 756 from the original means, while a repetition is a reiteration of the matter from some other means. Thus, if a letter containing defama- tion be sent by one to some other person, and by such other shown to another, the communication to the second party would be the original publication, while that to the third party, being from the original means — the letter — would be a republication. But if the second party should in turn tell the matter to the third person, or write it to him, this would con- stitute a repetition, though exactly the same words be used, for the communication is from a means in- dependent of the original one. Thus, as long as the original means exists, the defamation is capable of republication, but when this is destroyed — as a letter may be burned — the power of republication is gone, and it can only be repeated. By means, it should be observed, is not meant the person who is author of the matter, but the means by which the matter is conveyed to others, whether such means appeal to the touch, sight or hearing. And the means must be identically the same to constitute republication and not similar means. The writing must be the same, the sound waves must be the same, or the means of producing them the same — as a phonographic record. Hence, it may be easily seen that when slander has once been uttered, it is incapable of republication but can be repeated, while libel may be repub- lished so long as the original means remains unde- stroyed. "If one copies the subject matter of a writ- ing upon another piece of material, the copy is no more the same subject matter with the original than is a repetition of a sound the original sound." S9 Every time, after its publication, a libel is exhib- ited to one who understands its import, the libel 29 Towoshend cm Slander and Libel, sec. 117. 757 SLANDER AND LIBEL. § 388 is republished, whether it be exhibited by the author himself, or some one else to whom he has given it. When it is republished by himself it consti- tutes a new tort or wrong for which he may be pun- ished. Again, if he commits a libel to the possession of another, it would seem that he does so with the knowledge that it is capable of being republished and that it probably will be. Hence, the author of defamatory matter is liable not only for all republi- cations by himself, but also such as are affected by others which he might have reasonably foreseen. 30 On the other hand, every repetition is an entirely in- dependent act of the person repeating the defama- tion, and does not ordinarily render the person whose defamation is repeated liable. 31 As has been seen, not every publication is action- able, though the matter be defamatory, for a com- munication to the one complaining alone cannot cause injury to reputation. 32 Likewise not every republication of libelous matter is actionable, for if it be republished by the person defamed himself, the maxim "Volenti non fit injuria" applies to relieve the author. 33 Again, there are some cases in which the author of a defamation may become liable for a rep- etition of the same, as when he has actually or pre- 30 Miller v. Butler, 6 Gush. 71, 52 Am. Dec. 768; 3 Lawson on Rights and Remedies, sec. 1239; Zier v. Hofflin, 33 Minn. 66, 53 Am. Rep. 9, 21 N. W. 862; Terwilllger v. Wands, 17 N. Y. 54, 72 Am. Dec. 420. See Gough v. Goldsmith, 44 Wis. 262, 28 Am. Rep. 479. 31 Hastings v. Stetson, 126 Mass. 329, 30 Am. Rep. 683; Bent v. Advertiser etc. Co., 154 Mas®. 238, 28 N. E. 1; Prime v. Eastwood, 45 Iowa, 640; Shurtlefl v. Parker, 130 Mass. 293, 39 Am. Rep. 454; Cates v. Kellog, 9 Ind. 506. 32 Ante, sec. 385. 33 Fonville v. McNeflse, Dud. 303, 31 Am. Dec. 556; Wilcox v. Moore, 64 Vt. 450, 33 Am. St. Rep. 936, 24 Atl. 244; Seip v. Deshler, 170 Pa. St. 334, 32 Atl. 1032; Sylvis v. Miller, 46 Tex. 94; McCoomb v. Turtle, 5 Blackf. 431. § 388 INJUBY TO BIGHT OF BEPUTATION. 758 sumptively authorized or ordered its repetition, upon the principle of qui facit per alium, facit per se. 34 The fact that the author of a slander oralibelmay beheld liable for the results of its republication or rep- etition under certain circumstances does not relieve those others from liability by whose acts the repub- lication or repetition has been produced. The principles of the joint liability of joint tort feasors applies, and brings in all who have had anything to do with the spread of the defama- tory libelous matter. 35 "As respects a publica- tion by writing a libel, not only the publisher, but all who in any wise aid or are concerned in the production of the writing, are liable as pub- lishers. The publication of the writing is the act of all concerned in the production of the writing. Thus, if one composes and dictates, a second writes, and a third publishes, all are liable as publishers, and each is liable as a publisher. The law denom- inates them all as makers and publishers." 36 But this rule of joint liability does not apply to slander, as the original author of slanderous matter, and one who repeats the same, commit separate and dis- tinct acts, being responsible only for their own acts. 37 si Aldrich v. Press Ptg. Co., 9 Minn. 133, 86 Am. Dec. 84; Fogg v. Boston etc. By. Co., 148 Mass. 513, 12 Am. St. Bep. 583, 20 N. E. 109; Dawson, v. Holt, 11 Lea, 583, 47 Am. Bep. 312; Johnson, t. St. Louis Dispatch, 65 Mo. 539, 27 Am. Bep. 293. 35 Belo v. Fuller, 84 Tex. 450, 31 Anu St. Bep. 75, 19 S. W. 616; McAllister v. Detroit Free Press Co., 76 Mich. 338, 43 N. W. 431, 15 Am. St. Bep. 319, note, p. 333; Hunter v. Wakefield, 97 Ga. 543, 54 Am. St. Bep. 438, 25 S. E. 347; Harris v. Huntington, 2 Tyler, 129, 4 Am. Dec. 728; Monson v. Lathrop, 96 Wis. 386, 65 Am. St. Bep. 54, 71 N. W. 596. 36 Buckley v. Knapp, 48 Mo. 152, citing Townshend on Slander and Libel, sec. 115; 2 Starkie on Slander, 225; Bishop's Criminal Law, sec. 931. 37 Webb v. Cecil, 9 B. Mon. 198, 48 Am. Dec. 423. 759 SLANDER AND LIBEL. § 389 § 389. Reputation and Character Distinguished — Defamation is an injury to reputation, not to char- acter. This distinction is important in a conception of the wrong. Keputation is the character which is believed by the public to belong to a person, while character itself consists of the real moral qualities and principles which actually control his actions. The one is the self imputed to him by others; the other his real personality. The one is formed by the acts of the individual which are observed and known; the other by all his acts and thoughts, whether known or not. Thus it may be seen that the two are in no way dependent upon each other, and may indeed oftentimes be entirely opposed to each other. A man may have a good character and a bad reputation, being unjustly judged by the pub- lic, and likewise may have a bad character and good reputation, in which case he stands in a false light before the public but is not wronged. In many cases, no doubt, the reputation may exactly represent the true character, good or bad, and that is the condition which in justice and right ought to exist in respect to everyone. Everyone has a right to a reputation equal in all respects to his character, or rather to that char- acter which his actions indicate, for the unseen in- fluence of his thoughts cannot be expected to be rec- ognized except through his actions, and is entitled to a right of action against anyone who lowers his reputation below his character as so evidenced. As has been said, one's reputation is prima facie deemed to be good. This carries along with it the presump- tion that his character is not bad, and that his ac- tions are not wrongful. Therefore, the law deems any representation, which imputes an evil act, char- acter or reputation to a person, false until proven § 390 INJURY TO EIGHT OF REPUTATION. 760 to be true. But while the law requires a certain de- gree of proof to overthrow its presumption, it recog- nizes the human mind's propensity to believe evil upon slight evidence. Hence those representations which tend to influence public opinion in that respect are deemed to have done so, and if they are de- rogatory are deemed false and their result to es- tablish a false and unjust reputation for which a cause of action will lie. § 390. Defamatory Matter Must be False to Give Rise to a Civil Action — Truth as a Defense. — The rule prevailing under the common law was that to give rise to a civil action for damages in favor of an indi- vidual, the defamatory matter complained of must have been false, the truth of the statements being a complete defense. So far, then, as concerns the right to the civil action, the motive of the person speaking or printing the defamatory matter, whether malicious or otherwise, is immaterial. 38 This rule of the common law, like all other com- mon-law doctrines, is generally adopted and fol- lowed in our states, unless there is a statute to the contrary. In some states are found statutes or con- stitutional provisions that truth is not a defense, even in civil actions for damages, when the publica- tion was made with malicious intentions, or without good and justifiable ends. 39 In Kansas, however, 38 Castle v. Houston, 19 Kan. 417, 27 Am. Rep. 127; Simons v. Burnham, 102 Mich. 189, 60 N. W. 476; Press Co. v. Stewart, 119 Pa. St. 584, 14 Atl. 51; Root v. Hildreth, 7 Cow. 613, 632; Foss v. Hildreth, 10 Allen, 76; Baum v. Clanee, 5 Hill, 196; Haynes v. Spokane Chronicle Pub. Co., 11 Wash. 503, 39 Pac. 969; 3 Black- stone's Commentaries, 125; Newell on Slander and Libel, 795, sec. 42; Jarnigan v. Fleming, 43 Miss. 710, 5 Am. Rep. 514; Townshnnd on Slander and Libel, sec. 211. 39 Lothrop v. Adams, 133 Mass. 471, 43 Am. Rep. 528; Gen. Stats., c. 129, sec. 77. Truth to be a full defense, the publication must 761 SLANDER AND LIBEL. § 390 under a constitutional provision that coupled civil actions with criminal prosecutions, to the effect that "in all civil or criminal actions for libel, the truth may be given in evidence, .... and if it shall appear that the alleged libelous matter was pub- lished for justifiable ends, the accused shall be ac- quitted," the court still held to the common-law rule that truth was a complete defense, without re- gard to motive or intention, in civil actions. This is upon the theory that the complainant has precluded himself from his right of action by his own miscon- duct. When a plaintiff is guilty of an offense, he does not offer himself as a blameless party, seeking a remedy for a malicious mischief; his original mis- behavior taints the whole transaction with which it is connected, and precludes him from recovering that compensation to which all innocent persons would be entitled. 40 There is a radical difference between civil and criminal cases in respect to the liability of persons who publish defamatory matter, though true, there being sufficient reasons for sustaining liability in criminal cases, though not in civil cases. Accord- ing to common-law doctrines, the truth of the mat- ters alleged in a public prosecution for libel could not be interposed as a defense, unless for good and justifiable ends. Where a person makes the publi- cation solely to disturb the harmony and happiness of society, or to maliciously annoy and injure the feelings of others, or to create misery by exposing the latent and personal defects of associates or ac- quaintances, the interests of the public require some preventive, notwithstanding the truth of the pub- have been with good, motives: Pokrak Zapuda Pub. Co. v. Zis- kovsky, 42 Neb. 64, 60 N. W. 358. 40 Castle v. Houston, 19 Kan. 417, 27 Am. Rep. 127; Falkard's Starkie on Slander and Libel, sec. 692. S 390 INJURY TO BIGHT OF BEPUTATION. 762 lication. This is furnished by the criminal law, and hence one may become liable (criminally) for ma- liciously publishing the truth. This was the common law, and is the rule in some states. 41 The common law that truth was not a defense was modified by act of parliament, making it a defense when the defama- tion was published for good and justifiable ends, 42 4i Castle v. Houston, 19 Kan. 417, 27 Am. Rep. 127. The matter, if of defamatory nature, must have been published upon a lawful occasion, or come within the class termed "privileged" cases: Com- monwealth v. Clap, 4 Mass. 163, 3 Am. Dec. 212; Commonwealth v. Blanding, 3 Pick. 304, 15 Am. Dec. 214; State v. Burnham, 9 N. H. 34, 31 Am. Dec. 217; Cockayne v. Hodgkisson, 5 Car. & P. 543; King v. Creeney, 1 Maule & S. 280. One object of the rule is to preserve the peace of the community. The publication of matter which is true may have quite as great a tendency to excite breaches of the peace as if false; and although this can furnish no justifi- cation! for the doctrine that the greater the truth the greater the libel, It will serve to show that no one can justify or excuse the publication of matter tending to bring another into contempt or disgrace without any lawful occasion for making such a publica- tion;; it is not expedient that the errors or crimes of individuals should be made the subject of written publication except for the purpose of answering some good end: State v. Burnham, supra. See State v. Dehre, 2 Const B. (Treadway) 809, to same effect "That by the common law always, so far as it can be traced back, the doctrine now mentioned in regard to excluding the truth of the matters alleged, as a defense in a public prosecution for libel, with the exceptions stated, has been recognized and enforced, will be denied by no lawyer who has thoroughly examined the subject": Commonwealth v. Blanding, supra, citing 4 Blackstone's Com- mentaries, 150; Bex v. Wright, 8 Term Bep. 293; Bodgers v. Clifton, 3 Bos. & P. 507. In the case of King v. Boot, 4 Wend. 114, 139, 21 Am, Dec. 102, Chancellor Walworth clearly states the difference between civil and 1 criminal cases as follows: "The difficulty which existed in England, previous to Mr. Fox's libel act, was that in criminal prosecutions the defendant was not permitted to give truth in evidence; and yet the jury were required to imply malice. But in civil cases, the defendant was permitted to give the truth in evi- dence as a full justification. Such was declared to be the law by the judges at the time that bill was under discussion in parlia- ment and there never has been any alteration of the law in England on this subject in civil suits." 42 Ante, note, 41. 763 SLANDER AND LIBEL. § 391 and this has found lodgment in our state constitu- tions, but does not extend to civil actions. § 391. Same — Proof of Truth. — It was the rule that under the plea of justification the proof of the truth of the defamation should be as broad as the charge; it must aver the truth of the material and substantial charges, in language as broad as the charge, in its full and legal sense. 43 The reputation of the plaintiff being presumptively good, the bur- den of proving the truth rests upon the defendant. 44 And the rule as to the degree or character of proof required to establish the truth where the charge is of a criminal offense, as adopted in some states, is the same as if it were sought to prove the charge in a criminal proceeding, viz., that the truth of the libel must be established beyond a reasonable doubt. 45 43 Van Dei-veer v. Sutphin, 5 Ohio St. 294; Sheehy v. Cokley, 43 Iowa, 183, 22 Am. Rep. 236; Carpenter v. Bailey, 56 N. H. 283; Riggs v. Denniston, 3 Johns. Cas. 198, 2 Am. Dec. 145; Jarnigan v. Fleming, 43 Miss. 710, 5 Am. Rep. 514. This plea must be specific to every part of the declaration, as the proof must be full and com- plete, or the plea must fail. 44 Ellis v. Buzzell, 60 Me. 209, 11 Am. Rep. 204; McBee v. Ful- ton, 47 Md. 403, 28 Am. Rep. 465; Sloan v. Gilbert, 12 Bush. 51, 23 Am. Rep. 708; Bell v. McGinness, 40 Ohio St 204, 48 Am. Rep. 673; Barfield v. Britt, 2 Jones (N. C), 41, 62 Am. Dec. 190. 46 California: Merk v. Gelzhaeusier, 50 Cal. 63L Georgia: Williams v. Gunnels, 66 Ga. 521. Indiana.— The defendant te held to the same proof that is required on trial of an indictment for perjury: Byrket v. Monohon, 7 Blackf. 83, 41 Am. Dec. 212; Fowler v. Wallace, 131 Ind. 347, 31 N. E. 53. Iowa.— Beyond reasonable dioubt: Fountain v. West, 23 Iowa, 9 t 92 Am. Dec. 405. Maine: Newbit v. Statuck, 35 Me. 315, 58 Am. Dec. 706. But modi- fied in Ellis v. Buzzell, 60 Me. 209, 11 Am. Rep. 205. New Tork: Woodbeck v. Keller, 6 Cow. 118; Snyder v. Andrews, 6 Barb. 43. Pennsylvania: Steinman v. McWilliams, 6 Pa. St 170; Gorman v. Sutton, 32 Pa. St 247. S 392 INJURY TO EIGHT OF REPUTATION. 764 In other states, the rule in civil cases, that the truth must be established only by a preponderance of the evidence, is applied. 46 The common-law rule that failure to prove the truth of the charge operates or has the effect of aggravating the damages does not prevail to any great extent in this country, es- pecially if pleaded in good faith. 47 Although some decisions sustain it under certain conditions. 48 § 392. Injurious Representations— Classes— Per Se — Per Quod. — Just as the law recognizes that public opinion is prone to be influenced by representations of a derogatory nature, so it recognizes the fact that some representations are deemed derogatory and some not, that some have an injurious effect in and of themselves, while others have not, unless taken in connection with other circumstances. So represen- tations are divided into those which are slanderous or libelous per se and per quod. Those which are de- famatory per se are actionable without proof of actual injury, 49 but where they are not defamatory South Carolina: Burckhalter v. Coward, 16 S. C. 435. Tennessee: Matthews v. State, 2 Yerg. 235; State v. Phillips, 10 Humph. 461. Vermont: Dwinells v. Aiken, 2 Tyler, 75. 46 Ellis v. Buzzell, 60 Ma 209, 11 Am. Rep. 205; distinguishing Newbit v. Statuck, 35 Me. 315, 58 Am. Dec. 706; Edwards v. George Knapp & Co., 97 Mo. 432, 10 S. W. 54; Spruill v. Cooper, 16 Ala. 791; Atlanta Journal v. May son, 92 Ga. 640, 44 Am. St Rep. 104, 18 S. E. 1010. 47 Byrket v. Monohon, 7 Blackf. 83, 41 Aid. Dec. 212; Shank v. Case, 1 Ind. 170; Rayner v. Kinney, 14 Ohio St. 283; Sloan v. Petrie, 15 111. 425; Ransone v. Christian, 49 Ga. 491; Pallett v. Sargent, 36 N. H. 496. 48 Gilman v. Lowell, 8 Wend. 573, 24 Am. Dec. 96; Henderson v. Fox, 83 Ga. 233, 9 S. E. 839; Cruikshank v. Gordon, 1 N. Y. Supp. 443; Klewin v. Bauman, 53 Wis. 245, 10 N. W. 398; Robinson v. Drummond, 24 Ala. 174; Distin v. Rose, 69 N. Y. 122. 49 Stewart v. Minnesota Tribune Co., 40 Minn. 101, 12 Am. St. Rep. 696, 41 N. W. 457; Lansing v. Carpenter, 9 Wis. 540, 76 Am. 765 SLANDER AND LIBEL. § 392 per se, special damages must be alleged and shown to flow directly from the representation as a natural and proximate consequence. 50 Reference has been made before to a distinction which is made between defamatory matter in a libel and in a slander. This difference is in respect tp those matters which are defamatory perse, and for which redress is sought without reference to any actual injury inflicted, for when an actual injury is shown the action lies, whether it is through libel or slander. But in respect to matters defamatory per se, the case is different Generally speaking, those things which are of a slanderous nature would also be libelous if published in that form, but many rep- resentations which are deemed injurious when put into permanent form are not considered to be injuri- ous per se when not so placed. This distinction, while criticised by some writers and a few courts, is firmly embedded in the law, and to-day is universally recognized and adopted. 51 This distinction is well expressed and explained in an early Ohio case. "Whatever charge will sustain a suit for slander Dec. 281; Bergmami v. Jones, 94 N. Y. 51; Stone v. Cooper, 2 Denio, 293; Newbit v. Statiick, 35 Me. 315, 58 Am. Dec. 706; Yeates v. Reed, 4 Blackf. 463, 32 Am. Dec. 43; Dial v. Hotter, 6 Ohio St. 228. so Melvin v. Weiant, 36 Ohio St. 184, 38 Am. Rep. 572; Butler v. Kent, 19 Johns. 223, 10 Am. Dec. 219; Evening News Assn. v. Tryon, 42 Mich. 549, 36 Am. Rep. 450; Terwilliger v. Wands, 17 N. Y. 54, 72 Am. Dec. 420, note, p. 428; Press Co. v. Stewart, 119 Pa. St. 584, 14 Atl. 51; Anonymous, 60 N. Y. 262, 19 Am. Rep. 174; Alfele v. Wright, 17 Ohio St 238, 93 Am. Dec. 615. 51 Eonville v. McNease, Dud. (S. C.) 303, 31 Am. Dec. 556; May- rant v. Richardson, 1 Nott & McC. (S. C.) 348, 9 Am. Dec. 707; Watson v. Trask, 6 Ohio, 531, 27 Am. Dec. 271; Holston v. Boyle, 46 Minn. 432, 49 N. W. 203; Bradley v. Cramer, 59 Wis. 309, 48 Am. Rep. 511, 18 N. W. 268; Colby v. Reynolds, 6 Vt 489, 27 Am. Dec. 574; Lansing v. Carpenter, 9 Wis. 540, 76 Am. Dec. 281; Miller v. Butler, 6 Cush. 71, 52 Am. Dec. 768, note; Steele v. Southwick, 9 Johns. 214, 1 Am. Lead. Cas. 106, extensive note. See, also, post, sec. 399. § 393 INJURY TO RIGHT OF REPUTATION. 766 where the words are merely spoken will sustain a suit for libel if they are written or printed and pub- lished; and it will be seen at one glance that many charges, which if merely spoken of another would not sustain a suit for slander, will, if written or printed, and published, sustain a suit for libel. Words of ridicule only, or of contempt, which merely tend to lessen a man in public esteem, or to wound his feel- ings, will support a suit for libel , because of their being embodied in a more permanent and enduring form, of their increased deliberation and malignity of their publication, and of their tendency to provoke breaches of the public peace." 52 §393. What Words are Actionable Per Se.— The early cases, realizing that there is a great difference of opinion as to what acts indicate a depraved char- acter, and also the necessity of some certain stand- ard, held that only those words which imputed a criminal act were actionable per se. 53 This early doctrine has, on account of the development of the criminal law, received many refinements, and the view as to what words are per se defamatory has been expanded. The classes as set out by Justice Clifford, the first four of which embrace those words actionable perse, have been adopted by text-writers and courts generally. The first division of this classification includes those words recognized by the early cases; i. e., those which impute criminal acts. At first this was held to mean those acts for which an indictment would lie. At common law a convic- tion under an indictment subjected the accused to corporal punishment, but now criminal law has been so developed that many minor offenses render one liable to indictment, many offenses which are pun- 62 Watson v. Trask, 6 Ohio 531, 27 Am. Dec. 271. 53 Ogden v. Turner, 6 Mod. 104; Onslow v. Home, 3 Wils. 186. 767 SLANDER AND LIBEL. § 39S ishable only by fine. This criterion, then, is not practicable now, for it can hardly be said to be de- famatory to charge orally the commission of some of the misdemeanors which are punishable by line alone — such as engaging in business without li- cense. 84 This inadequacy is generally recognized, and many courts supplement this statement by holding that the act must be one involving "moral turpi- tude," 55 or such as will subject the party charged to an "infamous punishment" if the charge is true. 56 These refinements seem to be a return to that un- certain measure of opinion as to what is "moral turpitude," and what punishment is "infamous." To be consistent in this subject we must select some other division from the criminal law as the criterion. What line is there, which shows the regard that the law holds for acts, better than the nature of the pun- ishment prescribed therefor? The more depravity of character indicated by the act, the greater the punishment. Those acts for which a fine alone is imposed are not indicative of depravity, but those Which receive such corporal punishment as impris- onment, the stocks, or the whipping-post, do. Following this idea some courts have held that 64 Birch v. Benton, 26 Mo. 153; Billings v. Wing, 7 Vt. 430. 55 Alfele v. Wright, 17 Ohio St 238, 93 Am. Dec. 615; Watson v. Trask, 6 Ohio, 531, 27 Am. Dec. 271; Hollingsworth v. Shaw, 19 Ohio St. 430, 2 Am 1 . Eep. 411; Brite v. Gill, 2 T. B. Mom 65, 15 Am. Dec. 122; Klumph v. Dunn 1 , 66 Pa. St 141, 5 Am. Rep. 355; Andres v. Koppenheafer, 3 Serg. & R. 255, 8 Am. Dec. 647; Brooker v. Coffin, 5 Johns. 188, 4 Am. Dec. 337; Martin v. Stillwell, 13 Johns. 275, 7 Am. Dec. 376; Ranger v. Goodrich, 17 Wis. 78; Page v. Merwin, 54 Conn. 426, 8 Atl. 675. 56 Brooker v. Coffin, 5 Johns. 188, 4 Am. Dec. 337; Alfele v. Wright, 17 Ohio St 238, 93 Am. Dec. 615; Watson v. Trask, 6 Ohio, 531, 27 Am. Dec. 271; Elliot v. Ailsberry, 2 Bibb (Ky.), 473, 5 Am. Dec. 631; Stitzell v. Reynolds, 67 Pa. St 54, 5 Am. Rep. 396; Shafer v. Ahalt, 48 Md. 48 Md. 171, 30 Am. Rep. 456. § 394 INJUEY TO EIGHT OF REPUTATION. 768 those words which "impute an indictable offense for which corporal punishment may be inflicted as the immediate punishment and not as the consequence of a failure to satisfy a pecuniary penalty," are ac- tionable per se. 57 It is said in North Carolina that, "the gravamen of an action of slander is social deg- radation, and not the risk of punishment; and the test as to whether the words are actionable or not depends on whether the charge imputes an infamous crime, not whether the risk of punishment was in- curred." 58 The logical view seems to us to be that, while social degradation is the gravamen of the offense, the criminal law having been taken for a standard in this class of words, that criterion established b> the criminal law itself — viz., punishment — is the cri- terion by which the social standing, if not actually, at least legally, is determined. It is not necessary, to sustain the action that the commission of the act be directly charged, although this is the usual and most derogatory manner. It is sufficient if it is said falsely that one is an ex-convict, 59 or that he has been indicted for crime, 60 or that he has con- fessed, 01 as these imply the commission of a crime. § 394. Subject Further Considered.— The inconsis- tencies likely to arise from the use of any other rule may be shown in the cases relied upon as establish- 57 Birch v. Benton, 26 Mo. 153-160; Billings v. Wing, 7 Vt. 439; Rammel v. Otis, 60 Mo. 365; Elliot v. Ailsberry, 2 Bibb (Ky.), 473, 5 Am. Dec. 631; Griffin v. Moore, 43 Md. 246; Shafer v. Ahalt, 48 Md. 171, 30 Am. Rep. 456. 58 Shipp v. McCraw, 7 N. C. 463, 9 Am. Dec. 611. 59 Boogher v. Knapp, 76 Mo. 457;*Burke v. Masearich, 81 Oal. 302, 22 Pae. 673; Pellardls v. Printing Co., 99 Wis. 156, 74 N. W. 99; Pease v. Shippen, 80 Pa. St. 513, 21 Am. Rep. 116. 60 Jones v. Townsend, 21 Fla. 431, 58 Am. Rep. 676; Brace v. Brink, 33 Mich. 91. ei Cass v. Anderson, 33 Vt. 182. 769 SLANDER, AND LIBEL. § 394 ing the "moral turpitude or infamous punishment" criterion. Brooker v. Coffin 62 is the leading case in this regard, and is cited and followed in New York and other states. In this case a charge of being a common prostitute was held not actionable, and al- though a common prostitute was liable to imprison- ment the court deemed that the charge did not in- volve moral turpitude nor an act subjecting the plaintiff to an infamous punishment. Some seven years later the same court, in Martin v. Stillwell, 63 held that a charge of keeping a bawdy-house was actionable because of moral turpitude under the rule enunciated in Brooker v. Coffin. The views of courts upon moral turpitude seem hardly to be relied upon. As to the line of infamous punishment, the days of slit noses, clipped ears, the pillory, stocks and public whipping-post are in the past. Punishment now con- sists of fines, imprisonment and death. Crimes in- volving the last are few, and slander cannot be lim- ited to these; nor should it include the first, because of the infinite number of petty offenses corrected by it. This leaves us at the same point of distinction — imprisonment or corporal punishment. Thus it has been held that a charge of burning buildings is action- able when the act was arson, and punishable by im- prisonment, 64 but where the act was not so punish- able, an action will not lie. 63 Again, where abortion is punished by imprisonment, a charge of commit- 62 5 Johns. 188, 4 Am. Dec. 337. 63 13 Johns. 275, 7 Am. Dec. 374. 64 Logan v. Steele, 1 Bibb (Ky.), 593, 4 Am. Dec. 659; Haines v. Campbell, 74 Md. 158, 28 Am. St. Rep. 240, 21 Atl. 707; Waters v. Jones, 3 Port. (Ala.) 442, 29 Am. Dec. 261; Nailor v. Ponder, 1 Marv. (Del.) 408, 41 Atl. 88. 65 Brady v. Wilson, 11 N. O. 93; Redway v. Gray, 31 Vt. 292; Bloss v. Tobey, 2 Pick. 320. Torts, Vol. 1-49 §§ 395,396 INJURY TO RIGHT OF REPUTATION. 770 ting it is slanderous per se, 06 but where it is not so punished, no action lies for such a charge. 67 The charge of a crime which is now generally con- ceded to be slanderous perse is that for which the punishment is imprisonment in the penitentiary. § 395. Same Continued— Imputing Contagious Dis- ease. — The second class of words actionable per se are those imputing what is called a contagious disease. But this does not mean that it is slanderous to charge one with having any of the ordinary diseases which spread by contagion, although it may to a certain ex- tent exclude him from society through fear of the con- tagion. Those diseases which indicate a depravity of character and which arise from immoral practices are the diseases included in this class. Such diseases are of venereal character, and a false imputation in regard to them wrongfully brings the one charged into disgrace, and causes him to be shunned and avoided by all moral persons. 68 § 396. Words Actionable Per Se— Spoken of One in His Occupation. — In the third and fourth classes, as given by Justice Clifford, the right recognized is, that everyone is entitled to as good a reputation in respect to his occupation as his abilities in that direction warrant. Any statement, then, which falsely im- pugns one's qualifications for his occupation is per se slanderous, the courts having considered that the nat- ural tendency of such statements is to cause the one 66 Depew v. Robinson, 95 Ind. 109; Filber v. Danterman, 26 Wis. 518. 67 Abrams v. Foshee, 3 Iowa, 274, 66 Am. Dec. 77; Smith v. Gof- fard, 31 Ala. 45. 68 Kaucher v. Blinn, 29 Ohio St. 62, 23 Am. Rep. 727; Watson v. McCarthy, 2 Ga. 57, 46 Am. Dec. 380; Monk® v. Monks, 118 Ind. 238, 20 N. E. 744; Golderman v. Stearns, 7 Gray, 181; Castleberry v. Kelly, 26 Ga. 608; Irons v. Fields, 9 R. I. 216. 771 SLANDER AND LIBEL, § 396 spoken of to suffer pecuniary loss. Thus the false im- putation of want of integrity, where duties of trust are to be performed, the allegation of immoral habits, where morality is a necessity, the representation of lack of technical training and knowledge in a skilled profession or occupation, are per se injurious and slanderous. On the other hand, to say of a minister, for instance, that he knows nothing of civil engineer- ing, or of a mechanic that he is dishonest, or of an artist that he is immoral, will not be presumed to have caused him any loss in his occupation. Conse- quently, to be actionable, the words must be such as touch him in regard to his particular employment, and this connection must be shown by averment, technically called the colloquium. But when this is done, the law will imply the damage, as in the two classes just discussed, and special damages need not be shown. In regard to the subdivision of this general class of what might be called conditionally perse action- able words, writers and courts seem to be confused. In some a distinction is made between "office" and "employment of profit" and "profession or trade"; 69 others divide between "office, profession or employ- ment" and "business." 70 Perhaps the truth is, that the class can only be divided into the various occu- pations open to mankind. This is impracticable, and each case presents the question as to whether the representations averred have a tendency to establish a false reputation in regard to that particular voca- tion with which the complaining party is occupied. If they tend to falsely establish a reputation of inabil- ity to perform, or unfitness for, the duties of his oc- cupation, whether that be a public or a private office 69 Pollard v. Lyon, 91 U. S. 225. 70 Cooley on Torts, 235. § 396 INJUEY TO EIGHT OF REPUTATION. 772 or employment of profit, or a trade, profession or business, the law presumes an injury to flow there- from, and an action will lie. Thus, to charge a busi- ness man with being a bankrupt is slander, as it shows an unfitness for business and injures his cred- it; 71 and to charge a business man with being insol- vent, 72 or with keeping false books; 73 or to charge a business man with fraud and dishonesty; 74 to say of a minister that he is a drunkard; 75 to call a jus- tice a "damned fool of a justice"; 70 charging a fire chief with being drunk at a fire, 77 and a town clerk with committing frauds in an election, 78 and a postmaster with willingness to rob the mails 79 — in- jure them in their profession or trade. So to impute dishonesty and drunkenness to an attorney, 80 or to call him a "shyster," 81 or to charge him with divulg- ing secrets of his clients, 82 or with beinc; a cheat; 83 or to impute a want of professional skill and knowl- 71 Lewis v. Hawley, 2 Day (Conn:.), 497, 2 Am. Dec. 121. 72 Phillips v. Hoeper, 1 Pa. St. 62, 44 Am. Dec. Ill; Simons v. Burnham, 102 Mich. 189, 60 N. W. 476; Bentley v. Reynolds, 1 McMull. 16, 36 Am. Dec. 251. 73 Hoyle v. Young, 1 Wash. (Va.) 150, 1 Ami. Dec. 447; Burtch v. Nickerson, 17 Johns. 217, 8 Am. Dec. 390. 74 Noeninger v. "Vogt, 88 Mo. 589; Joralemon v. Pomeroy, 22 N. J. Li. 271; Nelson v. Borchenius, 52 111. 236; Backus v. Richardson, 5 Johns. 476; Mills v. Tayler, 3 Bibb (Ky.), 469. 75 McMillan v. Birch, 1 Binn. (S. O.) 178, 2 Am. Dec. 426; Chad- dock v. Briggs, 13 Mass. 248, 7 Am. Dec. 137; Haynes v. Cowden, 27 Ohio St. 292, 22 Am. Rep. 303. 76 Spiering v. Andras, 45 Wis. 333, 30 Am. Rep. 745. 77 Gottbehuet v. Hubachek, 36 Wis. 515. 78 Dodds v. Henry, 9 Mass. 262. 79 Craig v. Brown, 5 Blackf. 44. 80 Sandlerson v. Caldwell, 45 N. Y. 398, 6 Am. Rep. 105. 81 Gribble v. Pioneer Press Co., 34 Minn. 342. 82 Riggs v. Dennistort, 3 Johns. Cas. 198, 2 Am. Dec. 145; Gair v. Selden, 6 Barb. 46. 83 Rush v. Cavenaugh, 2 Pa. St 187. 773 SLANDER AND LIBEL. § 397 edge to a physician, 84 or to call him a blockhead or fool, appealing to a certain class of people not to in- trust themselves to his professional care is slander. 85 So it is slander to charge a butcher with selling dis- eased meat. 86 § 397. Words Actionable Per Quod— Special Dam- ages. — 'While many words have been held to cause in- jury to reputation prima facie and to be per se slanderous, the great majority of words, even though falsely spoken, are considered harmless and innocent from any danger. But oftentimes such innocent words are used in a manner and under circumstances which do cause actual damage and injury, and when such is the case the law demands reparation. As these representations are not actionable per se, it is necessary, in suits thereon, to aver and prove, not only their falsity, but the fact of special damage. These words are said to be actionable "per quod," instead of "perse." As is well said in an early Massachusetts case, "some words, however, although spoken falsely and maliciously, are not of a nature to produce ac- tual injury, because, being common terms of reproach, more indicative of the temper of the speaker than of any specific defect of character in him of whom they are spoken, it cannot be presumed that they have pro- duced any injurious effect; and therefore to make such words the basis of an action, it is necessary to allege and prove that some damage did actually fol- low the speaking of the words." 87 84 Swift v. Dickerman, 31 Conn. 285; Secor v. Harris, 18 Barb. 425; Carrol t. White, 33 Barb. 615; De Pew v. Robinson, 95 Ind. 109; Cruikshank v. Gorden, 118 N. T. 178, 23 N. E. 457. 85 Krug v. Pitas®, 162 N. Y. 154, 76 Am. St. Rep. 317, 56 N. E. 526. 86 Young v. Kuhn, 71 Tex. 645, 9 S. W. 860; Blumhardt v. Rohr, 70 Md. 328, 17 Atl. 266; Singer v. Bender, 64 Wis. 169, 24 N. W. 903. 87 Chaddock v. Briggs, 13 Mass. 252, 7 Am. Dec. 137. i 398 INJURY TO EIGHT OF EEPUTATION. 774 To present illustrative cases upon this subject is useless, though the reports are full of them, for in every case it is not a question of law, as in the other classes discussed, but one for the jury to determine whether or not there has been any actual injury done as the proximate result of the words spoken. 88 § 398. Particularity of Allegation and Proof— When Special Damage Must be Shown. — As has been shown, 89 a recovery may be had by proof of the publication of representations which are either deemed defamatory per se or actually occasion injury to the one complain- ing thereof. In the first case, the law presumes the falsity of the charges, and also the damage flowing from their publication; hence the fact of the publica- tion of words included in such classification is all that need be alleged and proved to sustain the action. 90 But in the second case, no presumptions arise, and it is necessary to prove all elements of the wrong as facts, the publication, the falsity of the representa- tion, and the actual damage flowing therefrom. 91 The disproof of any allegation of fact or failure to allege any fact essential to an action constitutes an absolute defense thereto; hence the proof of the truth of any alleged libelous or slanderous charge of the second class is a complete defense to the action. 92 So, also, the proof that the words were not published by 88 Melvin v. Weiant, 36 Ohio St. 184, 38 Am. Rep. 572; Butler v. Kent, 19 Johns. 228, 10 Am. Dec. 219; Anonymous, 60 N. Y. 262, 19 Am. Rep. 174; Bentley v. Reynolds, 1 McMull. 16, 36 Am. Dec. 251; Terwilliger v. Wands, 17 N. Y. 54, 72 Am. Dec. 420. 89 Ante, sec. 392. 90 Pfitzinger v. Dubs, 64 Fed. 696; Newbit v. Statuck, 35 Me. 315, 58 Am. Dec. 706; Yeates v. Reed, 4 Blackf. 463, 32 Am. Dec. 43. 91 Anonymous, 60 N. Y. 262, 19 Am. Rep. 174; Terwilliger v. Wands, 17 N. Y. 54, 72 Am. Dec. 420; Newman v. Stein, 75 Mich. 402, 13 Am. St. Rep. 447, 42 N. W. 956; Gough v. Goldsmith, 44 Wis. 262; Pollard v. Lyon, 91 TJ. S. 225. 92 Ante, sec. 390. 775 SLANDER AND LIBEL. f 309 the one accused, 93 and that the falsity and publica- tion did not occasion any injury complained of. 94 The first class of cases, however, depends upon at least two presumptions — as to falsity and damage — in connection with the facts. Presumptions are of two classes — conclusive and rebuttable — and the courts have held that the presumption of falsity of words is rebuttable, 95 while that as to the damage is conclusive. 96 Thus, to prove the want of publication, or the truth of the representations made, constitutes a complete defense in the first class of cases, but no evidence may be introduced to show the want of dam- age, because the court conclusively presumes dam- age, 97 § 399. Words Defamatory Per Se in Libel.— it has been shown that the chief distinction between slander and libel lies in the fact that one is lasting and the other is fugitive. This, together with the fact that oral words are often spoken in haste and with little reflection, while the reduction of the ideas and thoughts to a permanent form — such as writing, effl- 93 See Weir v. Hoss, 6 Ala. 881. 94 Anonymous, 60 N. T. 262, 19 Am. Eep. 174; TerwMiger v. Wands, supra; Newman v. Stein, supra; Gough v. Goldsmith, supra; Pollard v. Lyon, supra. 95 Castle v. Houston, 19 Kan. 417, 27 Am. Rep. 127; Sullings v. Shakespeare, 46 Mich. 408, 41 Am. Rep. 166, 9 N. W. 451; Ratcliffe v. Louisville 0. J. Co., 99 Ky. 416, 36 S. W. 177; Simons v. Burn- ham, 102 Mich. 189, 60 N. W. 476; Hayner v. Spokane C. Pub. Co., 11 Wash. 503, 39 Pac. 969. 96 Savon- v. Scanlan, 43 La. Ann. 967, 26 Am. St. Rep. 200, 9 So. 916; Yeates v. Reed, 4 Blackf. 463, 32 Am. Dec. 43; Gilman v. Lowell, 8 Wend. 573, 24 Am. Dec. 96; Rammel v. Otis, 60 Mo. 365; Newbit v. Statuck, 35 Me. 315, 58 Am. Dec. 706. 97 Pfltzinger v. Dubs, 64 Fed. 696; Newbit v. Statuck, 35 Me. 315, 58 Am. Dec. 706; Yeates v. Reed, 4 Blackf. 463, 33 Am. Dec. 43;Savoir v. Scanlan, 43 La. Ann. 967, 26 Am. St. Rep. 200, 9 So. 916; Miles v. Harrington, 8 Kan. 425; Tracy v. Hackett, 19 Ind. App. 133, 65 Am. St. Rep. 398, 19 N. E. 185. § 399 INJURY TO EIGHT OF REPUTATION. 776 gies and cartoons — require deliberation, make it rea- sonable that one should be required to be more care- ful as to what he reduces to writing, and the like, than as to that which he utters orally. Again, "we are apt to suppose that before a man reduces an accusation to writing he has satisfied him- self of the truth of it; and if he has not satisfied him- self, his conduct is certainly very reprehensible"; 98 and "there can be no question but that a slander, written and published, evinces a more deliberate in- tention to injure, is calculated more extensively to circulate the accusation and to provoke the person accused to take the means of redress into his own hands, and then to commit a breach of peace, than mere oral slander which is spoken and soon forgot- ten." " So, while the principles underlying the ac- tions for slander and libel are the same, many words or representations which would be harmless prima facie if uttered orally are defamatory per se as a libel on account of the greater opportunities for dam- age. In the first place all those matters which are deemed defamatory per se in slanderous form are held to be so in libelous form. Thus, to charge one with the commission of a crime involving corporal punishment, 100 or to impute a want of ability, fitness and integrity in respect to his office, 101 or profes- »8 McClurg v. Ross, 5 Binn. (Pa.) 218. 99 Colby v. Reynolds, 6 Vt. 489, 27 Am. Dec. 574. 100 Upton v. Hume, 24 Or. 420, 41 Am. St. Rep. 863, S3 Pac. 810; Belo v. Fuller, 84 Tex. 450, 31 Am. St. Rep. 75, 19 S. W. 616; Mc- Allister v. Detroit Free Press Co., 76 Mich. 338, 15 Am. St. Rep. 318, 43 N. W. 431; Conroy v. Pittsburg Times, 139 Pa. 334, 23 Am. St. Rep. 188, 21 Atl. 154; World Pub. Co. v. Mullen, 43 Neb. 126, 47 Am. St. Rep. 737, 61 N. W. 108. 101 Cotulla v. Kerr, 74 Tex. 89, 15 Am. St. Rep. 819, 11 S. W. 1058; Augusta Evening News v. Radford, 91 Ga. 494, 44 Am. St. Rep. 53, 17 S. E. 612; Banner Pub. Co. v. State, 16 Lea, 176, 57 777 SLANDER AND LIBEL. § 399 sion, 102 or trade, business or occupation, 103 is action- able, whether in permanent or fugitive and imperma- nent form. The definitions of libel include all of these, but they go further, and include all representations which have the tendency to render a person ridiculous or expose him to the contempt or hatred of the public, and those which tend to impair his standing in soci- ety and degrade him. 104 Such representations are li- Am. Rep. 214; Thomas v. Croswell, 7 Johns. 264, 5 Am. Dec. 269; Wilson v. Nunan, 23 Wis. 105; Robbins v. Treadway, 2 J. J. Marsh. 540, 19 Am. Dec. 152; Bourreseau v. Detroit Evening J. Co., 63 Mich. 425, 6 Am. St. Rep. 320, 30 N. W. 376. 102 Foster v. Scripps, 39 Mich. 376, 33 Am. St. Rep. 403; Hether- ington v. Sterry, 28 Kan. 426, 42 Am. Rep. 169; Sanderson v. Cald- well, 45 N. Y. 398, 6 Am. Rep. 105; Krug v. Pitass, 162 N. Y. 154, 76 Am. St. Rep. 317, 56 N. E. 526; Williams v. Davenport, 42 Minn. 393, 18 Am. St. Rep. 519, 44 N. W. 311; Hayner v. Cowden, 27 Ohio St. 292, 22 Am. Rep. 303. 103 Missouri etc. Ry. Co. v. Richmond, 73 Tex. 568, 15 Am. St. Rep. 794, 11 S. W. 555; Hayes v. Press Co., Limited, 127 Pa. St. 642, 14 Am. St. Rep. 874, 18 Atl. 331; Obaugh v. Finn, 4 Ark. 110, 37 Am. Dec. 773; Johnson v. Bradstreet Co., 77 Ga. 172, 4 Am. St. Rep. 77; Muetze v. Tuteur, 77 Wis. 236, 20 Am. St. Rep. 115, 46 N. W. 123; Mitchell v. Bradstreet Co., 116 Mo. 226, 22 S. W. 358, 724, 38 Am. St. Rep. 593, note, p. 605; Brown v. Vannaman, 85 Wis. 451, 39 Am. St. Rep. 860, 55 N. W. 183; St. James etc. Academy v. Gaiser, 125 Mo. 517, 46 Am. St. Rep. 502, 28 S. W. 851; Moore v. Francis, 121 N. Y. 199, 18 Am. St. Rep. 810, 23 N. E. 1127; Svmder- lin v. Bradstreet, 46 N. Y. 188, 7 Am. Rep. 322; King v. Patterson, 49 N. J. L. 417, 60 Am. Rep. 622, 9 Atl. 705. 104 McCorkle v. Binns, 5 Binn. 340, 6 Am. Dec. 420; Watson v. Trask, 6 Ohio, 531, 27 Am. Dec. 271; Adams v. Lawson, 17 Gratt. 250, 94 Am. Dec. 455; Lansing v. Carpenter, 9 Wis. 542, 76 Am. Dec. 281, note, 283; Bradley v. Cramer, 59 Wis. 309, 48 Am. Rep. 511; Solverson v. Peterson, 64 Wis. 198, 54 Am. Rep. 607; Stewart v. Swift Specific Co., 76 Ga. 280, 2 Am. St. Rep. 40; Smith v. Smith, 73 Mich. 445, 16 Am. St. Rep. 594, 41 N. W. 499; Moore v. Francis, 121 N. Y. 199, 18 Am. St. Rep. 810, 23 N. E. 1127; Morey v. Morning Journal Assn., 123 N. Y. 207, 20 Am. St. Rep. 730, 25 N. E. 161; Riley v. Lee, 88 Ky. 603, 21 Am. St. Rep. 358, 11 S. W. 713; Hirsch- field v. Ft. Worth Nat. Bank, 83 Tex. 452, 29 Am. St. Rep. 660, 11 S. W. 743; State v. Mason, 26 Or. 273, 46 Am. St. Rep. 629, 38 Pac. 130. § 399 INJURY TO EIGHT OF REPUTATION. 778 belous per se, and are actionable without proof of actual damage. Thus, to represent that one, upon being bitten by a cat, conducted herself like one — purring, mewing, and attempting to catch rats, 105 or to call a man a "swine" and say that he "lives on lame horses," 106 or to publish "that he has been de- prived of a participation of the chief ordinance of the church to which he belongs, and that, too, by reason of his infamous and groundless assertions," 107 or to charge one with having been sued for a breach of promise of marriage, 108 or that the exactious and fraudulent conduct of a wife has driven her husband to commit suicide, 109 or for a husband to charge his wife with deserting him during his sickness, 110 or to charge one with having told a falsehood which, al- though not perjury, tends to lessen the respect in which he is held by his friends, 111 or to send to a per- son a telegram, "Slippery Sam — Your name is pants," 113 or to call him "a disreputable person" who published a false report tending to injure the credit of the city, 113 is libelous on this ground. So, also, has an action been sustained for making a charge of anarchy, 114 and for alleging that one was 105 Stewart v. Swift Specific Co., 76 Ga. 280, 2 Am. St. Rep. 40. loe Solverson v. Peterson, 64 Wis. 198, 54 Am. Rep. 607, 25 N. W. 14. 107 McCorkle v. Binns, 5 Binn. 340, 6 Am. Dec. 420. 108 Morey v. Morning Journal Assn., 123 N. Y. 207, 20 Am. St. Rep. 730, 25 N. E. 161. 109 Bradley v. Cramer, 59 Wis. 309, 48 Am. Rep. 511, 18 N. W. 268. no Smith v. Smith, 73 Mich. 445, 16 Am. St. Rep. 594, 41 N. W. 499. in Cooper v. Stone, 24 Wend. 434; Riley v. Lee, 88 Ky. 603, 21 Am. St. Rep. 359, 11 S. W. 713. 112 Peterson v. Western Union Tel. Co., 65 Minn. 18, 67 N. W. 646. H3 Trebby v. Transcript Pub. Co., 74 Minn. 84, 73 Am. St. Rep. 330, 76 N. W. 961. 114 Cerveny v. Chicago Daily News Co., 139 111. 345, 28 N. E. 692. «T9 SLANDER AND LIBEL. § 400 chastised for improper conduct toward women, 115 and for setting out that one was to have been married, had ordered his wedding supper, and engaged the min- ister, but that just before the ceremony the lady eloped with his cousin, 116 as these representations brought their objects into contempt and ridicule. § 400. Excuses— Privileges— Absolute and Qualified — Classification — General Doctrine. — As distinguished from the defenses discussed in the foregoing sections, the law recognizes some excuses. The defense goes to show that the wrong complained of has not been committed, while an excuse admits the commission of the wrong but presents circumstances by reason of which the law refuses to redress it. Those represen- tations which are made under circumstances afford- ing a legal excuse are termed privileged communica- tions, and are held absolutely privileged or only con- ditionally so, according to whether the circumstances constitute a complete excuse, or other circumstances may be shown in rebuttal. 117 The existence of some privileged occasions has been recognized from early times, 118 but doubt was often expressed that there should be any circumstances which would give an absolute privilege to all words uttered. In an early United States case, 119 Justice Daniel says, after classifying "the exceptions found in the treatises and decisions": "The term, 'excep- tion,' as applied to cases like those just enumerated, could never be interpreted to mean that there is a class of actions or transactions above the cognizance us Holston v. Boyle, 46 Minn. 432, 49 N. W. 203. lie Hatt v. Evening News Assn., 94 Mich. 114, 53 N. W. 952. 117 Post, sec. 401. us Lake v. Rex, 1 Saund. 131; Fray v. Blackburn, 3 Best & S. 576; Yates v. Lansing, 5 Johns. 283. 119 White v. Nicholls, 3 How. 286, 291. § 400 INJUKY TO EIGHT OF REPUTATION. 780 of the law, absolved from the commands of justice. The privilege spoken of in the books should, in our opinion, be taken with strong and well-defined quali- fications. It properly signifies this and nothing more : That the excepted instances shall so far change the ordinary rule with respect to slanderous or libelous matter as to remove the regular and usual presump- tion of malice, and to make it incumbent on the party complaining to show malice." This view, however, has been repudiated, and a class of absolutely privileged communications is dis- tinctly recognized by writers and courts. 120 No priv- ilege arises unless there is some duty, legal or moral, upon the party making the defamatory representa- tions, to disclose his knowledge, upon the matter con- cerning which he has made the communications, ow- ing to the public or a private individual. "It must appear that they were spoken by defendant in the dis- charge of some public or private duty, legal or moral, and with that end and purpose in view, or in the con- duct of some matter involving his own interests, and were relevant and proper in that connection." 121 The law is that a communication, to be privileged, must be made upon a proper occasion, from a proper mo- tive, and must be made upon reasonable or probable cause, 123 or it must be made in good faith upon a subject matter in which the party communicating has 120 Odgers on Slander and Libel, *182: Townshend on Slander and Libel, 256; Newell on Slander and Libel, 418; see cases cited to sees. 402-404. 121 Trebby v. Transcript Pub. Co.. 74 Minn. 84, 73 Am. St. Rep. 330, 76 N. W. 961; Quinn v. Scott, 22 Minn. 462, citing Swan r. Tappan, 5 Cush. 104; Gassett v. Gilbert, 6 Gray, 94; Klinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360. The last class mentioned is included among private duties— i. e., to self— discussed further on. 122 Hebner v. Great Northern Ry. Co., 78 Minn. 289, 79 Am. St. Rep. 387, 80 N. W. 1128. 781 SLANDER AND LIBEL. § 400 an interest. 123 So, too, Justice Daniel, in White v. Nicholls, 124 says "that the description of cases recog- nized, as privileged communications must be under- stood as exceptions to the rule, and as being founded upon some apparentlyrecognized obligation or motive, legal, moral or social, which may fairly be presumed to have led to the publication, and therefore relieves it from that just implication from which the general rule of law is deduced." 135 These duties may be class- ified into those of (1) a public, (2) quasi public, or (3) private nature, and these latter may be owing to (A) self, or to (B) others who are in a (a) family or (b) other confidential relation, or (c) a relation giving them a legal or moral right to demand disclosures concerning character. The foundation for the exceptions is not, as conceived by Justice Daniel, that the fulfillment of a duty takes away the presumption of malice, though this is plausible, and leads logically to his conclusion against absolute privilege. It is, on the contrary, on the ground of public policy that such duties as are rec- ognized should be performed, and their performance protected, and that those representations which are apparently made in such performance shall be held not actionable, even though injury be occasioned thereby, or they are by nature defamatory per se, un- less it can be shown that the real purpose of their publication is the gratification of malice, 136 or that they are not actually in the performance of the duty. Again, the duty may be of such a character that any- thing, even if dictated by malice, occurring in its per- formance is absolutely protected. 123 Trebby v. Transcript Pub. Co., 74 Minn. 84, 73 Am. St. Rep. 330, 76 N. "W. 961. 124 3 How. 291. 125 See Odgers on Slander and Libel, *182. 126 Post, sec. 412. §§ 401,402 INJURY TO EIGHT OF REPUTATION. 782 § 401. Absolute— Qualified Privilege Distinguished.— The difference between absolute and qualified privi- lege lies in the nature of the duty in performance of which the communication is made. In the instances where the duty is a public one, it is considered that public necessity or public policy requires that no com- munications made in pursuance to the public duty, or pursuant to the demand of such public duty, shall be divulged, or even made the subject of inquiry. Such a privilege is absolute, that is, it cannot be overturned by evidence, and prevails only with reference to the legislative, executive and judicial departments. The only distinction between absolute and qualified priv- ilege is, that in the former the necessity for the priv- ilege prima facie exists without evidence, and cannot be overthrown by evidence, while in the latter the court cannot determine the nature of the relation in which the privilege is claimed, and the necessity therefor, which must be affirmatively shown, without resort to evidence. § 402. Privileged Through Duty to Public— Legisla- ture. — In the class of communications demanded by public duties are those made during the progress of legislative action by the official members of the legis- lative assembly upon matters regularly before such assembly, also such as are made in the courts of jus- tice which are pertinent to issues rightly before them, whether by the court, counsel, parties or witnesses, and official communications by government officials upon matters within the scope of their duties. All of these are entitled to the absolute privilege from lia- bility on account of the fact that the duty is owing to the public, and the law deems the public good more necessary to be protected than an occasional private wrong. 127 127 Coffin v. Coffin, 4 Mass. 1, 3 Am. Dec. 189. 783 SLANDER AND LIBEL. § 403 Words spoken by officials in the course of legisla- tive action are privileged by clear, special provisions in federal and state constitutions, and hence have re- ceived but little attention from the courts of this country. The reason underlying these provisions limits the protection to those utterances which occur during, and are a part of, legislative action, and does not extend it to private discussions by legislators, even though they may concern legislative action and be held in the assembly halls and during a session of the assembly itself. 128 But any discussion before the legislative body as a whole, or any part thereof, when engaged upon the performance of their public duties, is absolutely privileged, 129 and the force of the rule has been applied in the case of municipal legislative assemblies. 130 The Pennsylvania courts have gone to this extent in restricting the absolute privilege that they have held remarks of a member of a city council upon a matter, which had been brought up before that body without motion and out of order, are not made during discussion or debate, and therefore not enti- tled to absolute immunity. 131 § 403. Same— Judicial Bodies.— Although there is ao constitutional provision which excuses representa- tions made before a court of justice, the reasons under- lying those provisions concernyigWegislative action apply equally well here. The judicial branch of the government is as much a public agency as the legis- lature, and the duties of its officers and those who are 128 Coffin v. Coffin, supra. 129 Coffin v. Coffin, supra; Wright v. Lothrop, 149 Mass. 385, 21 N E 963; Bradley v. Heath, 12 Pick. 163, 22 Am. Dec\ 418. 130 Trebilcock v. Anderson, 117 Mich. 39, 75 N. W. 129; Wach- smith v. Bank, 96 Mich. 426, 56 N. W. 9. 131 McGraw v. Hamilton, 184 Pa. 108, 63 Am. St. Rep. 787, 39 Atl. 4. § 403 INJURY TO EIGHT OF REPUTATION. 784 before it to see that law and justice are enforced are as public in nature as those of the law-making body. Indeed, if judges, counsel, parties and witnesses could be held responsible for the injurious effects of every statement made by them, few could be persuaded to undertake the offices of justice, and none save the reckless would tempt the perils of such courts for re- dress. Public duties are paramount, and it is deemed a sufficient deterrent from breach of such duty that such public punishments as impeachment, disbar- ment, and actions for perjury are provided. It is evident, however, that if for any reason a court has no jurisdiction over a matter, it can perform no duty in regard thereto. Hence the first requisite for the operation of this privilege is that the court must have jurisdiction of the matter concerning or in re- gard to which the representation claimed to be ex- cused is made. 133 It is uniformly held that remarks which are not material or pertinent to matters prop- erly before the court are not absolutely privileged, 133 for if they are immaterial to matters before the court, they cannot be considered as a performance of any public duty which only exists in regard to matters upon which the court is properly called to exercise its powers. The line as to relevancy is not to be drawn too strictly, however. "A counsel's position is one of 132 See Forbes v. Johnson, 11 B. Mon. 48; Torrey v. Field, 10 Vt. 353; Johnson v. Brown, 13 W. Va. 133; Bartlett v. Christhilf, 69 Md. 219, 14 Atl. 518; Jones v. Brownlee, 161 Mo. 258, 61 S. W. 795; Milam v. Burnsides, 1 Brev. (S. O.) 295; Vausse v. L*e, 1 Hill (S. C), 197, 26 Am. Dec. 168; Liles v. Gaster, 42 Ohio St. 631. 133 Bartlett v. Christhilf, 69 Md. 219, 14 Atl. 518; Vogel v. Gruaz. 110 U. S. 311, 4 Sup. Ct. Rep. 12; Hollis v. Meux, 69 Cal. 625. 58 Am. Rep. 574, 11 Pac. 248; Runge v. Franklin, 72 Tex. 585, 13 Am. St. Rep. 833, 10 S. W. 721; Ash v. Zwletusch, 159 111. 455, 42 N. B. 854; Acre v. Starkweather, 118 Mich. 214, 76 N. W. 379; Clifton v. L.ange, 108 Iowa, 472, 79 N. W. 276; McBee v. Fulton, 47 Md. 403, 28 Am. Rep. 465; Voumans v. Smith, 153 N. T. 214, 47 N. E. 265. 785 SLANDER AND LIBEL. I 403 great difficulty, and he has special need to have his mind clear of all anxiety. A wide latitude is justly and necessarily given to him in order to insure a full hearing and the doing of justice. It would be impos- sible for him to do his duty if he could be questioned for the strength of his expression or the exaggeration of his arguments, deductions or inferences. That they are extreme, or only specious or colorable, is not the test, but whether they are pertinent." 134 And in the case of witnesses, the test is often held to be their belief, or reasonable belief, as to the pertinency of their statements. "The witness who is not a lawyer is not cognizant of the rules of law and cannot, for himself, readily determine the materiality or respon- siveness or pertinency of his answers. He is un- familiar with the rules of evidence. Public policy re- quires that he should not be trammeled with the fear of a prosecution for slander." 135 * But so long as the representations are reasonably pertinent and material or relevant to the issues in- volved, they are absolutely protected, whether made by the court, 136 or by counsel, 137 or by a witness, 138 134 Sickels v. Kling, 31 Misc. Rep. 287, 64 N. Y. Supp. 252. 135 Acre v. Starkweather, 118 Mich. 214, 76 N. W. 379; White v. Carroll, 42 N. Y. 161, 1 Am. Rep. 503; Calkins v. Sumner, 13 Wis. 193, 80 Am. Dec. 738; Shadden v. McElwee, 86 Tenn. 146, 6 Am. St. Rep. 821, 5 S. W. 602. 136 Gosslin v. Cannon, 1 Harr. (Del.) 3; Wilson, v. Whrtacre, 2 Ohio C. Dec. 392; Aylesworth v. St. John, 25 Hun, 156; Sands v. Robinson, 12 Sneed, 704, 51 Am. Dec. 132. 137 Hollis v. Meux, 69 Cal. 625, 58 Am. Rep. 574, 11 Pac. 248; Hastings v. Lusk, 22 Wend. 410, 34 Am. Dec. 330; Lester v. Thur- mond, 51 Ga. 118; Hoar v. Wood, 3 Met. 193; Maulsby v. Reif snider, 69 Md. 143, 14 Atl. 505; Shelter v. Gooding, 47 N. C. 175; Sickels v. Kling, 31 Misc. Rep. 289, 64 N. Y. Supp. 252. 138 Hunckel v. Voneiff, 69 Md. 179, 9 Am. St. Rep. 413, 14 Atl. 500; Terry v. Fellows, 21 La. Ann. 375; Calkins v. Sumner, 13 Wis. 193, 80 Am. Dec. 738; Hutchins v. Lewis, 75 Ind. 55; Barnes v. Mc- Crate, 32 Me. 442; Smith v. Howard, 28 Iowa, 51; McNabb v. Neal, 88 111. App. 571. Torts, Vol. 1—50 § 404 INJURY TO EIGHT OF REPUTATION. 786 or by a party to the action. 139 In regard to the coun- sel and parties, the privilege extends not only to the oral representations during a trial, but to the plead- ings, 140 affidavits and motions as well, 141 and in civil or criminal actions, 142 but here also it is imperative that the representations should be relevant to the issues before the court. 143 The fact of privilege from action for slander will not prevent an action from being brought thereon for perjury, 144 or for malicious prosecution. 145 This branch of privilege also protects the deliberations of petit and grand jurors. 146 § 404. Same— Executive Communications.— The ex- ecutive officers of state and federal governments, throughout their numerous branches, have many duties requiring communications to pass among them- selves and to the other branches of the government. 139 Lawson v. Hicks, 38 Ala. 279, 81 Am. Dec. 49; Lea v. White, 4 Sneed (Tenn.), 111. 140 Park v. Detroit Free Press Co., 72 Mich. 560, 16 Am. St. Rep. 544, 40 N. W. 731; Gardemal v. McWilliams, 43 La. Ann. 454, 26 Am. St. Rep. 195, 9 South. 106; Ball v. Rawles, 93 Cal. 222, 27 Am. St. Rep. 174, 28 Pac. 937; Jones v. Brownlee, 161 Mo. 258, 61 S. W. 795; Hardin v. Comstock, 1 A. K. Marsh. (Ky.) 480, 12 Am. Dec. 427. 141 Hart v. Baxter, 47 Mich. 198, 10 N. W. 198; Harris v. Ream, 2 Ohio Dec. 281; Hawk v. Evans, 76 Iowa, 595, 14 Am. St. Rep. 247, 41 N. W. 368. 142 Ball v. Rawles, 93 Cal. 222, 27 Am. St. Rep. 174, 28 Pac. 937; Allen v. Crofoot, 2 Wend. 515, 20 Am. Dec. 647; Hartsock v. Red- dick, 6 Blackf. 255, 38 Am. Dec. 141; Vawsse v. Lee, 1 Hill, 197, 26 Am. Dec. 168; Rainbow v. Benson, 71 Iowa, 301, 32 N. W. 352; Morrow v. Wheeler & Wilson Mfg. Co., 165 Mass. 349, 43 N. E. 105; Vogel v. Gruaz, 110 U. S. 311, 4 Sup. Ct. Rep. 12. 143 Sherwood v. Powell, 61 Minn. 479, 52 Am. St. Rep. 614, 63 N. W. 1103; Wimbish v. Hamilton, 47 La. Ann. 246, 16 South. 856; Mc- Laughlin v. Cowley, 127 Mass. 316. 144 Ball v. Rawles, 93 Cal. 222, 27 Am. St. Rep. 174, 28 Pac. 937. 146 Francis v. Wood, 75 Ga. 648. 146 Dunham v. Powers, 42 Vt. 1; Rector v. Smith, 11 Iowa, 302. 787 SLANDER AND LIBEL § 405 These communications upon public affairs are enti- tled to the same immunity discussed in the previous sections. Writers and courts have held the rule ap- plicable to naval and military officers, 147 but it is be- lieved that the reasoning applies as well to the vari- ous civil executives, such as President, governor, or the heads of departments. Thus, where a communi- cation was made pursuant to an act of Congress by a head of an executive department, it was held abso- lutely privileged, though made with malice. 148 Like- wise, a representation by a mayor to a city council concerning the character of the city attorney is priv- ileged. 149 And a communication to a city council by a mayor, giving his reasons for vetoing a resolution passed by them, is excused. 150 The same limitations apply in this case as in the others, and the communications must be upon mat- ters to which his official duties extend, and must be pertinent thereto. 151 But, as oddly put by the United States supreme court, "if he acts, having authority, his conduct cannot be made the foundation of a suit against him personally for damages, even if the cir- cumstances show that he is not disagreeably im- pressed by the fact that his action injuriously affects the claims of particular individuals." 15a § 405. Same— By the Public— To Public Officials — There are duties of a public nature which fall upon 147 Dawkins v. Lord Robeby, L. R. 8 Q. B. 255; Odgers on Libel and Slander, *193. See contra, Maurice v. Worden, 54 Md. 233, 39 Am. Rep. 384. 148 Spalding v. Vilas, 161 V. S. 483, 16 Sup. Gt. Rep. 631. 149 Greenwood v. Cobbey, 26 Neb. 449, 42 N. W. 413. 150 Trebilcock v. Anderson, 117 Mich. 39, 75 N. W. 125. 151 Spalding v. Vilas, 161 TJ. S. 483, 16 Sup. Ct. Rep. 631; Green- wood v. Cobbey, 26 Neb. 449, 42 N. W. 413; Trebilcock v. Anderson, 117 Mich. 39, 75 N. W. 125. 152 Spalding v. Vilas, 161 V. S. 499, 17 Sup. Ct. Rep. 631. § 406 INJURY TO EIGHT OF REPUTATION. 78S all members of the community alike, and which are not because of some special obligation imposed, as in the cases just discussed, but because the obligation of preservation of the government is upon all mem- bers of that government. Thus, it is the duty of all to see that the laws are enforced by the proper offi- cials, to call the attention of competent authority to offenders, to assist in every lawful way the en- forcement of the laws, and to secure the election of competent officials and dismissal of incompetent ones. Of course, these duties are of imperfect obligation, but they are duties recognized by the law of slander and libel, and communications made in the perform- ance of such duties are privileged. Thus, the law will excuse erroneous statements in communications made to public officials upon matters within the scope of their official cognizance when they concern the ap- pointment, 153 or removal 154 of officials or appointees; or when they have relation to the apprehension and capture of a criminal or the institution of criminal proceedings. 155 § 406. Same— Quasi Public— Churches— Lodges, etc. Persons may assume duties of a similar nature to these public ones, which they owe as members of the general public, but limited in their scope to a limited portion of the same. These duties are in addition to 153 Vanderzee v. McGregor, 12 Wend. 545, 27 Am. Dec. 156; Ram- sey v. Cheek, 109 N. C. 270, 13 S. E. 775; Harris v. Hunting-ton, 2 Tyler, 129, 4 Am. Dec. 728; Gray v. Pentland, 4 Serg. & R. 420; Wie- man v. Mabee, 45 Mich. 484, 40 Am. Rep. 477, 8 N. W. 71; Bodwell v. Osgood, 3 Pick. 379, 15 Am. Dec. 228. 154 Thorn v. Blanchard, 5 Johns. 508; Kent v. Bongartz, 15 R. I. 72, 2 Am. St. Rep. 870, 22 Atl. 1023; Dennehy v. O'Connell, 66 Conn. 175, 33 Atl. 920; Frank v. Dessena, 5 N. J. Law Jour. 185. 155 Pierce v. Oard, 23 Neb. 828; Eames v. Whittaker, 123 Mass. 342; Sands v. Robinson, 17 Smedes & M. (Miss.) 704, 51 Am. Dec. 132; Dale v. Harris, 109 Mass. 193; Burton v. Worley, 4 Bibb. 38, 7 Am. Dec. 735. 789 SLANDER AND LIBEL. § 407 the general ones above mentioned, and are created by some particular relation existing between those members of the general public to whom they are limited. They are of a quasi public character. Such duties are those owing between the members of the various churches, religious and secular societies, lodges and fraternities, which the members assume when they enter the same. By becoming members they voluntarily submit themselves to be governed by the rules of the society as to certain prescribed matters, and cannot complain of the results of the actions of the society, though in fact defamatory, if in accordance with such rules and in good faith. Also, by obtaining membership each one is in duty bound to endeavor to observe the rules and see that other members do the same. Consequently, any charge made in the performance of such duty is also privileged. 156 § 407. Privileged Cases— Private— To Self— Defend- ing Attack. — Besides duties of public and quasi public nature, there are many duties of a private nature which one owes to himself and others. The former he owes in common with the others of the general community or a certain portion of it, or on account of some special public position; the latter are individ- ual, and on account of some peculiar circumstance or relation with others. It is true that all duties may be conceived to arise because of a peculiar relation with others, such as belonging to civil society in gen- eral, or some special society or lodge, a limited por- 156 Dial v. Holter, 6 Ohio St. 228; Remington v. Congdon, 2 Pick. 310, 13 Am. Dec. 431; Coombs v. Rose, 8 Blackf. 155; Kleizer v. Symmes, 40 Ind. 562; Jarvis v. Hatheway, 3 Johns. 180, 3 Am. Dec. 473; York v. Pease, 2 Gray, 282; Whitaker v. Carter, 26 N. C. 461; Lucas v. Case, 9 Bush, 297; Landis v. Campbell, 79 Mo. 433, 49 Am. Rep. 239; Streety v. Wood, 15 Barb. 105; Howard v. Dickey, 120 Mich. 238, 79 N. W. 191: Shurtliff v. Stevens, 51 Vt. 384. § 407 INJUEY TO EIGHT OF BEPUTATION. 790 tion of the general public, or some private confiden- tial relation, but a breach of those duties known as public or as quasi public affects all the members of that general or limited body, while the breach of the private affects only self or another. At most, how- ever, it is but a question of numbers, but this is im- portant because it is the basis of the distinction be- tween absolute and qualified privilege as shown in an- other place. Every person is entitled to protect himself to a certain extent, from injuries to his body, 157 and it may be said to be a duty to himself to do so. Like- wise he may and is in duty bound to protect his char- acter, or reputation or business from assaults through fraud, insult and imposition. Whatever he says in reply to such attacks, if relevant thereto and said honestly and in good faith, is privileged. 158 In discussing the situation where a real estate firm had published a grievance against a rival firm through the newspaper, and had attacked the reply of such rival, the Virginia court said: "Now, in this state of things, the defendant [the first firm] was war- ranted in believing that a twofold duty was imposed upon him, viz. : (1) To defend himself against the dis- reputable charge made against him; and (2) to pro- tect his interest, by preventing, if he could, unfavor- able impressions respecting his published statement of alleged grievances, lest such impressions, if formed in the community, might tend to his prejudice upon 157 Ante, sec. 207. 158 Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 568, 15 Am. St Rep. 794, 11 S. W. 555; Rice v. Simmons, 2 Har. (Del.) 417, 31 Am. Dec. 766; Chaffin v. Lynch, 83 Va. 117, 1 S. B. 803; Reusch v. Roanoke Cold Storage Co., 91 Va. 534, 22 S. E. 358; Klinck v. Colby, 46 N. Y. 427, 7 Am. Rep. 360; Hatch v. Lane, 105 Mass. 394; Bacon v. Michigan Cent. Ry. Co., 66 Mich. 166, 33 N. W. 181; Brewer v. Chase, 121 Mich. 526, 80 Am. St. Rep. 527, 80 N. W. 575; Smurth- ,waite v. News Pub. Co., 124 Mich. 377, S3 N. W. 116; Lynch v. Febiger, 39 La. Ann. 336, 1 South. 690. 791 SLANDER AND LIBEL. § 408 the trial of his proposed trial" for the damage result- ing from the cause of his grievance. 159 The defense, however, must be responsive to the attack. If it is not, it is nothing less than a counter-attack upon the assailant himself, and not a defense at all, and hence not privileged. 160 "One as- sault cannot be set off against another; yet if a man is attacked by another in a newspaper he may reply." 161 "The thing published must be something in the nature of an answer, like an explanation or denial. What is said must have some connection with the charge that is sought to be repelled." 162 So when one publishes a newspaper article charging another with corruption in office, a reply by that other containing allegations of dis- graceful and criminal actions on the part of the first party is not privileged, "the rule of privileged retort being limited to matters published in rebuttal which are relevant to the charges made or necessary to the defense." 1G3 § 408. Privileged Cases— To Persons Having Interest in Subject Matter— Confidential or Business Affair. — Duties are correlated with rights, and those private duties owing to others which furnish an excuse for defamatory communications grow out of rights to de- mand disclosure arising from some interest, other than mere curiosity, on the part of the one spoken to, in regard to the subject matter of the disclosure. 159 Chaffln v. Lynch, 83 Va. 106, 1 S. E. 803. 160 Brewer v. Chase, 121 Mich. 526, 80 Am. St. Rep. 527, 80 N. W. 575; Smurthwaite v. News Pub. Co., 124 Mich. 377, 83 N. W. 119; Chaffln v. Lynch, 83 Va. 106, 1 S. E. 803; Goldberg v. Dobberton, 46 La. Ann. 1303, 16 South. 192. ifil Chaffln v. Lynch, 83 Va. 106, 1 S. E. 803. 162 Brewer v. Chase, 121 Mich. 526, 80 Am. St. Rep. 527, 80 N. W. 575. 163 Brewer v. Chase, supra. § 408 INJURY TO EIGHT OF REPUTATION. 792 This interest may be because of some relation be- tween the one speaking and the one spoken to, or be- cause of some circumstance apart from any such re- lation. Thus, the relations of confidence existing be- tween members of the same family demand that dis- closures of one to another upon matters of inter- est to the family shall be privileged. 164 "It would be strange, indeed, if a husband or wife could not safely say anything to the other about their neighbors or acquaintances which he or she would not feel war- ranted in saying to the world. Such a rule would de- stroy all opportunity for confidential conference, ad- vice or suggestion." 165 "The legal and moral duty due by a parent to his daughter and the solicitude by which he should always be prompted for her future, give rise to a qual- ified privilege on occasions he thinks his advice and admonitions are required." 16e So, too, communica- tions between attorney and client, 167 though not to a student in the attorney's ofnce, 16S to clerks of counsel, 169 physician and patient, 170 minister and parishioner, 171 principal and agent, or master 164 Kimble v. Kimble, 14 Wash. 369. 44 Pac. 866; Campbell v. Bannister, 79 Ky. 205; Sesler v. Montgomery, 78 Cal. 488, 12 Am. St. Rep. 76, 21 Pac. 185; Baysset v. Hire, 49 La. Ann. 904, 62 Am. St. Rep. 675, 22 South. 44. See Harriott v. Plimpton, 166 Mass. 585, 44 N. E. 992. 165 Sesler v. Montgomery, 78 Cal. 488, 12 Am. St. Rep. 76, 21 Pac. 185. 166 Baysset v. Hire, 49 La. Ann. 904, 62 Am. St. Rep. 675, 22 South. 44. 167 Davis v. Reeves, 5 I. C. L. 79; Wright v. Woodgate, 2 Cromp. M. & R. 573; Orisler v. Garland, 11 Smedes & M. 136, 49 Am. Dec. 49. See Levy v. McCann, 44 La. Ann. 528, 10 South. 794; Foster v. Hall, 12 Pick. 93, 22 Am. Dec. 400. 168 Barnes v. Harris, 7 Cush. 576, 54 Am. Dec. 734. 169 .Tackson v. French, 3 Wend. 337, 20 Am. Dec. 699; Foster v. Hall, 12 Pick. 89, 22 Am. Dec. 400. 170 Cameron v. Cockran, 2 Marv. (Del.) 166, 42 Atl. 454. 171 Vickers v. Stoneman, 73 Mich. 419, 41 N. W. 495. 793 SLANDER AND LIBEL. § 408 and servant, 172 or those having equal interests as partners, directors, 173 stockholders, 174 on matters concerning the relationship, are excused. Thus it is said in an Iowa case, that "in the protection of his own interests one may make a communication to his agent or servant without subjecting himself to liabil- ity, unless he exceeds the privilege and does more than his duty or interest demands. Again, when one has an interest in the subject matter of a communica- tion and the person to whom it is made has a corre- sponding interest, every communication honestly made, in order to protect such common interest, is privileged by reason of the occasion. Generally, this interest must be a pecuniary one, but it may arise out of the relationship or status of the parties. The statement must be such as the occasion warrants, and must be made in good faith to protect the inter- ests of the publisher and the person to whom it is ad- dressed." 175 Here the relationship between the parties is a sufficient excuse for any communication upon matter concerning the relationship. There may also be circumstances creating an inter- est in others which entitle one to receive information from another, but which do not constitute a relation- ship between the parties giving and receiving the in- 172 Rotholz v. Dunkle, 53 N. J. L. 438, 26 Am. St. Rep. 432, 22 Atl. 193; Schulze v. Jalonick, 18 Tex. Civ. App. 297, 44 S. W. 580; Atwill v. Mackintosh, 120 Mass. 181; Jones v. Forehand, 89 Ga. 520, 32 Am. St. Rep. 81, 16 S. E. 262; Allen v. Cape Fear Ry. Co., 100 N. C. 397, 6 S. E. 105; Washburn v. Cooke, 3 Denio, 110; Nichols v. Eaton, 110 Iowa, 509, 80 Am. St. Rep. 319, 81 N. W. 792; Philadelphia etc. R. R. Co. v. Quigley, 21 How. 202; Dunsee v. Norden, 36 La. Ann. 78. 173 Montgomery v. Knox, 23 Fla. 59, 53 South. 211; Philadelphia etc. R. Co. v. Quigley, 21 How. 202. 174 Broughton v. McGrew, 39 Fed. 677. 175 Nichols v. Eaton, 110 Iowa, 509, 80 Am. St. Rep. 319, 81 N. W. 792. § 408 INJURY TO EIGHT OF EEPUTATION. 794 formation. For instance, every creditor is entitled to know the pecuniary circumstances of his debtor, and anyone who gives him any information in regard thereto is excused for misstatements made in good faith. 170 These disclosures must be made to one having an interest therein as set out, and if made to another who has no such interest, and are false, they are actionable. 177 Thus the many commercial agencies in various parts of the country, which make it their business to obtain and send out information concern- ing the commercial standing of others, may do so with impunity so long as they give out such informa- tion only to those having a right thereto on account of interest. But when such agencies send out false information to all their subscribers indiscriminately, and regardless of their interest therein, they become liable, and not entitled to the excuse of privilege. 178 Another instance is the right which everyone has to know the qualifications of those whom he employs for their employment. Thus, one may inform another as to the character of servants whom the latter has in his employ, or is about to employ, and if it is done solely because of his right to know, the com- 176 Erber v. Dun, 12 Fed. 576; Locke v. Bradstreet Co., 22 Fed. 771; Van Horn v. Van Horn, 56 N. J. L. 318, 28 Atl. 669; Fahr v. Hayes, 50 N. J. L. 275, 13 Atl. 261; Mitchell v. Bradstreet Co., 116 Mo. 226, 38 Am. St. Rep. 592, 22 S. W. 358; King v. Patterson, 49 N. J. L. 417, 60 Am. Rep. 622, 9 Atl. 705; Bradstreet Co. v. Gill, 72 Tex. 115, 13 Am. St. Rep. 768, 9 S. W. 753; Sunderlin v. Bradstreet Co., 46 N. Y. 188, 7 Am. Rep. 322; State v. Lonsdale, 48 Wis. 348, 4 N. W. 390; Pollasky v. Minchener, 81 Mich. 280, 21 Am. St. Rep. 516, 46 N. W. 5. 177 Cases supra. 178 Pollasky v. Minchener, 81 Mich. 280, 21 Am. St. Rep. 516, 46 N. W. 5; Bradstreet Co. v. Gill, 72 Tex. 115, 13 Am. St. Rep. 768, 9 S. W. 753; Woodruff v. Bradstreet Co., 116 N. Y. 217, 22 N. E. 354; Mitchell v. Bradstreet Co., 116 Mo. 226, 22 S. W. 358, 38 Am. St. Rep. 592, and note. 795 SLANDER AND LIBEL. § 400 munication is a privileged one. 179 So, too, "black- lists" may be protected when they are sent only to those entitled to them on the ground of interest, and such lists sent by railroad companies or the like to their agents who employ the men are privileged. 180 § 409. Freedom of Press— Newspaper Privilege— Spe- cially of Reports. — Freedom of speech is one of the most sacred rights vouchsafed by our government. Co- equal with it stands the liberty of the press. These two stand together and are recognized in the federal constitution in the first amendment, where Congress is forbidden to pass any law "abridging the freedom of speech, or of the press," and in the state constitu- tions which provide that "every citizen may freely speak, write and publish his sentiments on all sub- jects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech or of the press." 1S1 The freedom of speech is subject to certain well-recognized limita- tions which are discussed in this chapter, but the liberty of the press has been popularly supposed to confer upon the proprietors of newspapers the right to publish with impunity matter which would be actionable if published in any other manner. It is contended that there is a public demand for news and statements concerning the character and acts of those who are known personally or by reputa- tion to the public. That because of this demand there is a duty upon the newspaper to supply the 179 Hollenbeck v. Ristlue, 105 Iowa, 492; Dale v. Harris, 109 Mass. 193; Child v. Affleck, 9 Barn. & C. 406 (leading case). 180 Bacon v. Michigan Cent. Ry. Co., 66 Mich. 166, 33 N. W. 181; Missouri Pac. Ry. Co. v. Richmond, 73 Tex. 568, 15 Am. St. Rep. 794, 11 S. W. 555; Hebner v. Great Northern R. Co., 78 Minn. 289, 79 Am. St. Rep. 387, 80 N. W. 1128. 181 Ohio Const., art. 1, sec. 11; Cooley's Constitutional Limitations. § 409 INJURY TO EIGHT OF REPUTATION. 796 news and information, and that the performance of such duty entitles the papers to immunity from liabil- ity for chance misrepresentations. Duty, however, is correlated with right, and mere curiosity does not confer a right to have that curiosity satisfied. As liberty of speech and of the press are equally and in the same manner protected by the constitutions, it would seem that the same rules should apply to both, and that a newspaper would be liable for publica- tions which would give a cause of action against a private individual. So it is said that "conductors of the public press have no rights but such as are com- mon to all." 18a Hence, unless a newspaper article of a defamatory nature comes under one of the heads which have been shown to excuse and privilege communications by private individuals, it is actionable. Publication by newspaper in the form of reports of proceedings cannot be deemed acts of the legisla-: tive, judicial or executive branch of the government, although the newspaper is used to publish notice of pending judicial acts, and might be used by the others if the subscribers and readers were only those to whom it was their duty to communicate. It has, however, long been recognized that fair and impar- tial reports of the acts of these three branches are privileged, even though containing statements ac- tually libelous. We have seen that a repetition of a libel cannot be 182 Palmer v. Concord, 48 N. H. 211, 97 Am. Dec. 605; Foster v. Scripps, 39 Mich. 376, 33 Am. Rep. 403; Edwards v. San Jose Ptg. Soc, 99 Oal. 431, 37 Am. St. Rep. 70; Barnes v. Campbell, 59 N. H. 128, 47 Am. Rep. 183; Upton v. Hume, 24 Or. 420, 41 Am. St. Rep. 863; Bronson v. Bruce, 59 Mich. 467, 60 Am. Rep. 307; Haynes v. Clinton Ptg. Co., 169 Mass. 512; Negley v. Farrow, 60 Md. 158, 45 Am. Rep. 715. 797 SLANDER AND LIBEL. § 409 justified on the ground that it is a repetition alone, 183 nor that the one originally making the representa- tion be exempt from liability. 184 The public, how- ever, is entitled to know what its servants are doing, and any information as to their acts is in response to a public duty, and privileged as to any statements concerning others. This does not mean that false re- ports may be made even with the best of motives, for these fall under the head of representations injurious to one in public office, and thereby disgracing him. 185 What is meant is this: Representations may be made in legislative assemblies or before a court of justice, which are libelous or slanderous in nature. These representations are there privileged on account of the official duties of those making them. These same statements may be embodied in newspaper reports of such official proceedings, and are privileged against action by the one libeled therein, not because this last publication is a repetition of privileged communica- tions, but because it is the report of an act of a public servant. Thus reports of legislative action, 186 or of judicial proceedings, are privileged. 187 Shnilarly, re- 183 Ante, sec. 388. See, also, Trebby v. Transcript Pub. Co., 74 Minn. 84, 73 Am. St. Rep. 330, 76 N. W. 961. 184 Ante, sec. 388. 185 Robbins v. Treadway, 2 J. J. Marsh. 540, 19 Am. Dec. 152; Lansing v: Carpenter, 9 Wis. 540, 76 Am. Dec. 281; Wilson v. Noonan, 23 Wis. 105; Barr v. Moore, 87 Pa. St. 385, 30 Am. Rep. 367; Ban- ner Pub. Co. v. State, 16 Lea, 176, 57 Am. Rep. 214; Foster v. Scripps, 39 Mich. 376, 33 Am. Rep. 403; Thomas v. Croswell, 7 Johns. 264, 5 Am. Dec. 269; Negley v. Farrow, 60 Md. 158, 45 Am. Rep. 715. 186 Terry v. Fellow, 21 La. Ann. 375; Howland v. Maynard, 159 Mass. 434, 38 Am. St. Rep. 445, 34 N. E. 515. 187 Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548, 78 Am. Dec. 285; Post Pub. Co. v. Moloney, 50 Ohio St. 71, 33 N. E. 921; McBee v. Fulton, 47 Md. 403, 28 Am. Rep. 465; Stanley v. Webb, 4 Sand. 21; Thompson v. McCready, 194 Pa. St. 32, 45 Atl. 78; Com- fort v. Young, 100 Iowa, 628, 69 N. W. 1032; Clifton v. Lange, 108 Iowa, 475, 79 N. W. 276; Metcalf v. Times Pub. Co., 20 R. I. 674, 78 Am. St. Rep. 900, 40 Atl. 864. § 409 INJURY TO EIGHT OF BEPTJTATION. 798 ports of actions of quasi public officers may be made public, such as the proceedings of deliberative officers of a church, 18S or a lodge or society. 189 But in order to be entitled to the privilege, these latter publica- tions must be through papers circulated among those who have a right to know what such officers are doing, and among no others; i. e., in denominational or lodge publications, and the action reported must be within the scope of the official duty of the body taking it. 190 Reports of this character must be fair and impar- tial, and not one-sided, ex parte or garbled. These latter are not true accounts of the acts, and convey erroneous impressions. 191 By ex parte reports are meant those which present but one side of a case without giving the opponent the opportunity to reply. They do not represent acts of the court, and are un- fair to the party defamed. But where there has been a hearing in open court, the fact that it was a judi- cial proceeding entitles a fair report thereof to the privilege, even though the hearing be an ex parte one. 192 Again, these reports must be fair and im- partial, and if any libelous statement is made which 188 Shurtleff v. Stevens, 51 Vt. 501, 31 Am. Eep. 698. 189 Kirkpatrick v. Eagle Lodge, 26 Kan. 384, 40 Am. Rep. 316; Barrows v. Bell, 7 Gray, 301, 66 Am. Dec. 479. 190 Trebby v. Transcript Pub. Co., 74 Minn. 84, 73 Am. St. Rep. 330, 76 N. W. 961. 191 Cincinnati Gazette Co. v. Timberlake, 10 Ohio St. 548, 78 Am. Dec. 285; Park v. Detroit Free Press Co., 72 Mich. 560, 16 Am. St. Rep. 544, 40 N. W. 731; Cowley v. Pulsifer, 137 Mass. 392, 50 Am. Rep. 318; McDermott v. Evening Journal Assn., 43 N. J. L. 488, 39 Am. Rep. 606; McAllister v. Detroit Free Press Co., 76 Mich. 338, 43 N. W. 431, 15 Am. St. Rep. 318, note; Metcalf v. Times Pub. Co., 20 R. I. 674, 78 Am. St. Rep. 900, 40 Atl. 864. 192 Usher v. Severance, 20 Me. 9, 37 Am. Dec. 33; Tresca v. Mad- dox, 11 La. Ann. 206, 66 Am. Dec. 198. See McAllister v. Detroit F. P. Co., 15 Am. St. Rep. 362, note; McBee v. Fulton, 47 Md. 40, 28 Am. Rep. 465; Metcalf v. Times Pub. Co., 20 R. I. 674, 78 Am. St. Rep. 900, 40 Atl. 864. 799 SLANDER AND LIBEL, § 410 is not included within the compass of a strict account of the actual proceedings, it is not protected by the privilege, 193 because they are not statements of any acts of public agents. Further than this, newspapers may not "publish mere arbitrary selections from the proceedings or the pleadings in the case, consisting of those portions which impute crime or moral turpi- tude to, or cast ridicule or odium upon the person to whom they refer." 194 § 410. Privileged Cases in Libel— Newspaper Com- ment Upon Acts of Public Officials.— Many cases have held, and no doubt the weight of authority sustains the view, that newspaper comment upon the actions of public officers must keep close to the truth in their averments of facts, however far from the truth they may stray in their criticisms. It is contended that the newspaper causes a very wide dissemination of its statements and information, that the possibilities for injury are very great, and that therefore the greatest care should be observed in the character of its publi- cations. On the other hand, the interest in acts of public officials is very vital, and extends to every in- dividual to whom the paper may come. The news- paper is entitled to the same privilege as private in- dividuals, though no more. If one private person is privileged in telling another his mistaken idea of the actions of that other's servants, when he gives the in- formation in good faith and upon reasonable belief of its truth, should not the newspaper be also protected when it publishes, upon reasonable grounds for be- 193 Saunders v. Baxter, 6 Heisk. 369; Scripps v. Reilly, 38 Mich. 10; Ludwig v. Cramer, 53 Wis. 193, 10 N. W. 81; Comfort v. Young, 100 Io-wa, 628, 69 N. W. 1032; Metcalf v. Times Pub. Co., 20 R. I. 674, 78 Am. St. Rep. 900, 40 Atl. 864. 194 Metcalf v. Times Pub. Co., 20 R. I. 674, 78 Am. St. Rep. 900, 40 Atl. 864. § 411 INJURY TO EIGHT OF EEPUTATION. 800 lief, facts concerning the public officials, which sub- sequently turn out to be false? Every member of the commonwealth has a right to know what his agent or servant has done upon the business intrusted to him, and whoever in good faith imparts information to such employer is protected from prosecution there- for should his statements prove untrue. Every pub- lic official is the agent, in his duties, of every citizen, and consequently information which is published in a newspaper reaches no one but who has a right to be informed in regard to the officer's acts. Conse- quently, it would seem that statements of facts in newspapers concerning public officers or candidates for public offices should be as much privileged as those of private individuals concerning private ser- vants, 195 but, as has been said, the majority of the courts hold the newspapers strictly to the truth as to facts given. 196 § 411. Same— Comments Upon Qualifications of Can- didates for Office. — As with occupants of public offices, so with candidates for these places, their qualifica- tions are open to investigation by the public, and all are entitled to discuss them. "In our form of govern- ment the supreme power is in the people ; they create the office and select the officers. Then, in the exer- cise of the high and important power of selecting their agents to administer the affairs of the govern- ment, are the people to be denied the right of discus- 195 This view is held in some few states: Mott v. Dawson, 46 Iowa, 533; Bays v. Hunt, 60 Iowa, 251, 14 N. W. 785; Marks v. Baker, 28 Minn. 162, 9 N. W. 678; Express Ptg. Co. v. Oopeland, 64 Tex. 354. 196 Hallam v. Post Pub. Co., 59 Fed. 530; Bronson v. Bruce, 59 Mich. 467, 60 Am. Rep. 307, 26 N. W. 671; Upton v. Hume, 24 Or. 420, 41 Am. St. Rep. 863, 33 Pac. 810; Fry v. Bennett, 3 Bosw. (N. Y.) 200; Edwards v. San Jose etc. Pub. Co., 99 Cal. 431, 37 Am. St. Rep. 70, 34 Pac. 128. 801 SLANDER AND LIBEL. § 412 sion and comment respecting to qualifications or want of qualifications of those who, by consenting to become candidates, challenge the support of the people on the ground of their peculiar fitness for the office sought? Usually it is by such discussion and comment concerning the qualifications of opposing candidates that the people obtain the requisite in- formation to enable them intelligently to exercise the elective franchise." 197 From this right to be in- formed springs the privilege of the papers in com- menting upon the acts of candidates which protects the publisher even though the deductions drawn are erroneous or unwarranted; 198 but the criticisms must be founded on facts; and if the facts alleged are false, an action for libel will lie against the paper as against an individual. 199 As is well expressed, "an editor is responsible for the truth of what he alleges in his articles to be facts, but his criticism thereon, or his opinions (expressed in such article) upon facts ad- mitted or established, are privileged." 200 § 412. Malice as an Element of Slander and Libel — The difference between the results of absolute and 187 Express Printing Co. v. Copeland, 64 Tex. 358. if8 Fry v. Bennett, 3 Bosw. 200; Jackson v. Pittsburg Times, 152 Pa. St. 406, 34 Am. St. Rep. 659, 25 Atl. 613; Mott v. Dawson, 46 Iowa, 533; Vance v. Louisville Courier- Journal Co., 95 Ky. 41, 23 S. W. 591; Post Pub. Co. v. Hallam, 59 Fed. 530. i»9 Edwards v. San Jose etc. Pub. Co., 99 Cal. 431, 37 Am. St Rep. 70, 34 Pac. 128; Sweeny v. Baker, 13 W. Va. 158, 31 Am. Rep. 757; Aldrich v. Press Ptg. Co., 9 Minn. 133, 86 Am. Dec. 84; Post Pub. Co. v. Hallam, 59 Fed. 530; Jones v. Townsend, 21 Fla. 431, 58 Am. Rep. 676; Smith v. Burrus, 106 Mo. 94, 27 Am. St Rep. 329, 16 S. W. 881; Bourreseau v. Detroit Evening Journal, 63 Mich. 425, 6 Am. St Rep. 320, 30 N. W. 376; Upton v. Hume, 24 Or. 420, 41 Am. St. Rep. 863, 33 Pac. 810; Wallis v. Bazet, 34 La. Ann. 131; Bronson v. Bruce, 59 Mich. 467, 60 Am. Rep. 307, 26 N. W. 671; Post Pub. Co. v. Moloney, 50 Ohio St. 71, 33 N. E. 921. 200 Fry v. Bennett 3 Bosw. (N. Y.) 200. Torts, Vol. 1—51 I 412 INJUBY TO EIGHT OF REPUTATION. 802 qualified privilege is the same as between presump- tions of law and of fact — i. e., in the one no evidence may be introduced to rebut it — the excuse is com- plete — while in the other circumstances may be shown which will remove the privilege. Such circum- stances are those which will indicate malice upon the part of the person making the defamatory repre- sentations. Malice is often said to be one of the ele- ments of slander and libel, but a distinction is drawn between malice in law and malice in fact, and it is held the former alone is all that need be shown. 201 Malice in law, moreover, does not mean an actual ill- will, but the doing of an act intentionally without any legal cause or excuse, 202 or in wanton disregard of the rights of others. 203 Again, when the courts consider what is proof of such malice, it is held that it may be inferred from the falsity of the defamatory matter, 204 and from the fact that the words are defamatory per se, for, as has been shown, the law here infers falsity. 205 And this 201 King v. Root, 4 Wend. 113, 21 Am. Dec. 103; Holt v. Parsons, 23 Tex. 9, 76 Am. Dec. 49; Gott v. Pulsifer, 122 Mass. 235, 23 Am. Rep. 322; Hart v. Reed, 1 B. Mon. 166, 35 Am. Dec. 179. 202 King v. Root, 4 Wend. 113, 21 Am. Dec. 102; King v. Patter- son, 49 N. J. L. 417, 60 Am. Rep. 622; Krug v. Pitass, 162 N. Y. 154, 76 Am. St. Rep. 317, 56 N. E. 526. 203 Tresca v. Maddox, 11 La. Ann. 206, 66 Am. Dec. 198. 204 King v. Root, 4 Wend. 113, 21 Am. Dec. 102; Holt v. Parsons, 23 Tex. 9, 76 Am. Dec. 49; Gam v. Lockwood, 108 Mich. 196, 65 N. W. 764; Harrison \. Hove, 109 Mich. 477, 67 N. W. 527; Hamil- ton v. Eno, 81 N. Y. 116; Trabue v. Mays, 3 Dana (Ky.), 138, 28 Am. Dec. 61; Upton v. Hume, 24 Or. 420, 33 Pac. 810, 41 Am. St. Rep. 863, note. 206 Savoie v. Scanlan, 43 La. Ann. 967, 26 Am. St. Rep. 200, 9 South. 916; Williams v. McManus, 38 La. Ann. 161, 58 Am. Rep. 171; Harris v. Zanone, 93 Cal. 59, 28 Pac. 845; Jarnigan v. Fleming, 43 Miss. 710, 5 Am. Rep. 514; Thomas v. Bowen, 29 Or. 258, 45 Pac. 768; Owen v. Dewey, 107 Mich. 67, 65 N. W. 8; Negley v. Farrow, 60 Md. 158, 45 Am. Rep. 715; Bradstreet v. GUI, 72 Tex. 115, 13 803 SLANDER AND LIBEL. § 412 presumption of legal malice is conclusive. 206 But actual malice will never be inferred from the char- acter of the words spoken, nor from their falsity, but must be affirmatively shown. 207 In no case, then, is there need of independent proof of malice in establishing the wrong, for falsity itself is an essential element in all cases, and proof of it is proof of malice. But if actual malice does not have to be proved in the first instance, nor disproved in de- fense, it may be proved in rebuttal to overthrow the excuse of privilege where that is of a qualified char- acter. 208 And unless malice in fact be shown the privilege will remain unrebutted; 209 for the repre- sentations may be made with utmost good faith and bona fide intention to perform a duty imposed, and will hence be privileged though their falsity raises the presumption of legal malice. But when an actual de- sign to do injury and evil intent is shown, this is con- sidered sufficient evidence that the communication is not made for the purpose of performing some duty, Am. St. Eep. 768, 9 S. W. 753; McAllister v. Detroit Free Press Co., 76 Mich. 338, 43 N. W. 431, 15 Am. St. Eep. 318 (see note, pp. 337-339). 206 Whittemore v. Weiss, 33 Mich. 348; Fitzpatrick v. Daily States Pub. Co., 48 La. Ann. 1116, 20 South. 173; Wilson v. Noonan, 35 Wis. 321. 207 Kent v. Bongartz, 15 R. I. 72, 2 Am. St. Rep. 870, 22 Atl. 1023; Shurtleffl v. Stevens, 51 Vt. 501, 31 Am. Rep. 698. 208 Childers v. San Jose etc. Pub. Co., 105 Cal. 284, 45 Am. St. Rep. 40, 38 Pac. 903; Edwards v. Chandler, 14 Mich. 471, 90 Am. Dec. 249; Lawson v. Hicks, 38 Ala. 279, 81 Am. Dec. 49; Ormsby v. Doug- lass, 37 N. Y. 477; Ruohs v. Backer, 6 Heisk. 395, 19 Am. Rep. 598; Hebner v. Great Northern Ry. Co., 78 Minn. 289, 79 Am. St. Rep. 387, 80 N. W. 1128. See, also, cases under sections on "Privilege," ante. 209 Remington v. Congdon, 2 Pick. 310, 13 Am. Dec. 431; Gott v. Pulsifer, 12-2 Mass. 235, 76 Am. Dec. 49; Landis v. Campbell, 79 Mo. 433, 49 Am. Rep. 239; Kent v. Bongartz, 15 R. I. 72, 2 Am. St. Rep. 870, 22 Atl. 1023; Edwards v. Chandler, 14 Mich. 471, 90 Am. Dec. 249; Bradley v. Heath, 12 Pick. 163, 22 Am. Dec. 418; Haney v. § 412 INJURY TO BIGHT OF EEPUTATION. 804 but to gratify some ill-will or advance some private in- terest, and therefore is not entitled to be protected. 210 Trost, 34 La. Ann. 1146, 44 Am. Rep. 461; Lanning v. Christy, 30 Ohio St. 115, 27 Am. Rep. 431. 210 Brown v. Vannaman, 85 Wis. 451, 39 Am. St. Rep. 860, 55 N. W. 183; Lowry v. Vedder. 40 Minn. 475, 42 N. W. 542. 805 INJURY TO EIGHT OP EEPUTATION. 1 413 CHAPTER XXVII. INJURY TO CONSTITUTIONAL EIGHT OP EEPUTA- TION CONTINUED— BY MALICIOUS PEOSECU- TION. $ 413. Introductory. § 414. Nature of right and injury— Does it embrace both criminal and civil action. § 415. Same continued — Decisions conflicting— The right of action upon principle stated. § 416. Same continued— Conflict of decision further considered- Cases sustaining action where there is an arrest or seiz- ure of property. § 417. Same continued— Summary of comments upon confusion of authority and of principles of the right of action. § 418. Same continued— Subject considered with special reference to auxiliary processes. § 419. Malicious prosecution — Defined and explained and distin- guished from kindred wrongs. § 420. Termination of suit. § 421. Probable cause— Defined— Practical application. § 422. Same continued— Charging the jury. § 423. Same continued— Dependent upon guilt or belief. § 424. Advice of counsel, magistrates and others— Effect § 425. Acting upon information received from others. § 426. Conviction as evidence of probable cause. § 427. Acquittal as evidence of probable cause. § 428. Malice as an element of the wrong. § 429. Malice defined. § 430. Malice continued— How shown— Practical deductions. § 431. Malice continued— Province of court and jury in respect thereto. § 432. Measure of damages. § 413. Introductory. — The courts of justice are maintained that all injuries may be redressed and the guilty ones punished. And for this purpose their doors are open to all, everyone having free access to § 414 MALICIOUS PROSECUTION. 806 them upon condition that groundless and malicious cases are not instituted. This does not mean that every case which fails in the courts is wrongful, for many just claims fail because of some slight inability or slip in the proof. The punishment of paying the costs of the suit is deemed a sufficient deterrent and penalty for those bringing cases which they are un- able to prove. But for an action of which there is not only no proof, but also no foundation, and which is brought with malice, an action in tort will lie. The first inquiry in the consideration of the subject is as to the nature of the right of an individual who may be thus injured. § 414. Nature of Right and Injury— Does It Embrace Both Criminal and Civil Action. — According to the com- mon law, the malicious prosecution of an action was considered as an injury to a man in his reputation. Latterly, in England, by act of parliament, this was limited to criminal prosecutions, but as we shall pres- ently see, some states adopted the common law em- bracing civil actions, where special injury is done to property affecting one's credit or reputation or occu- pation as a business man. The primary right invaded is the right of personal security, embracing the right to the enjoyment of his reputation as a citizen, or as a business or professional man. Malicious prosecu- tion is classed under all the codes as an injury to char- acter, permitting it, as they do, to be united with slan- der or libel in one complaint, the gist of the action be- ing an injuryto plaintiff's reputation. 1 It mayreadily be perceived that "an accusation of crime, made under the forms of law, or on the pretense of bringing a guilty man to justice, is made in the most imposing i Kinkead's Code Pleading, sec. 28; Shore v. Smith, 15 Ohio St 173; Pomeroy's Code Eemedies, sec. 496. 807 INJUBY TO EIGHT OF REPUTATION. § 415 and impressive manner, and may inflict a deeper in- jury upon the reputation of the party accused than the same words uttered under any other circum- stances." 3 "A man's reputation may be destroyed or injured as effectually by preferring malicious in- dictments or prosecutions against him, as by spoken or written words." 3 And so, just as libel or slander of one in his occupation constitutes the violation of his right to the enjoyment of reputation, does the groundless prosecution of a malicious civil suit equally injure him in his occupation or business, and for every injury to property, credit or reputation, the law has provided an appropriate remedy; and hence an action on the case will lie for the malicious prose- cution of a civil suit, where the party has been ar- rested or has suffered other special and extraordinary grievance, such as an interference with property. 4 The right to and cause for action for such wrong is an ac- tion on the case for an injury to his reputation by and through an interference with his property rights, re- covery being allowed for the consequential damages done, for example, to one's business, credit and repu- tation, and for all expenses incurred in connection therewith. 5 § 415. Same Continued— Decisions Conflicting— The Right of Action Upon Principle Stated.— The lack of har- mony among the American authorities as to whether or not there exists a right of action for the mali- cious prosecution of a civil suit, without an arrest of the person or seizure of property, leads us to believe that there has not been a proper appreciation of the 2 Sheldon v. Carpenter, 4 N. Y. 579, 55 Am. Dec. 301. 3 Shore v. Smith, 15 Ohio St. 173; 3 Blackstone's Commentaries, 135- 4 Bitz v. Meyer, 40 N. J. L. 252, 29 Am. Rep. 233. s Lawrence v. Hagerman, 56 111. 68, 8 Am. Rep. 674. § 415 MALICIOUS PROSECUTION. 808 right injured, and we do not find it to have been any- where scientifically considered among the cases or by any text-writer. The primary right to a good business reputation, it would seem, is invaded by the institution of a mali- cious civil suit, the natural tendency of which is to injure the reputation, and the auxiliary processes of courts, usually resorted to for seizure of property, such as attachment, an appointment of a receiver to take charge of a business, or a temporary injunction, are but the means to accomplish the general purpose of the action, and are the incidents of the malicious action. It can only be claimed in support of the rule adopted by some courts, that no right of action exists for the malicious prosecution of a civil action, without arrest or seizure of property, that the two acts, viz., (1) the institution of the groundless action, and (2) the arrest or seizure, combined, constitute the inva- sion of the right of reputation. The forcible language of a learned writer is pertinent in this connection, viz., pleading "is the truest guide to the knowledge of the common law, the key that opens the inmost re- cess, and an expositor that discloses and explains the most abstruse parts of it." 6 What is the cause of action? Can it be claimed oth- erwise than that the gist of any malicious prosecu- tion — criminal or civil — is maliciously instituting a groundless action? Is not one injured among his busi- ness friends and associates by the mere institution of a groundless action, the natural tendency of which is to injure credit, thus compelling one to defend a groundless action? Such actions are now heralded broadcast by mercantile agencies as soon as insti- tuted, and the business world is at once in possession 6 Lord Coke; Kinkead's Common-law Pleading, 3. 809 INJUKT TO EIGHT OP REPUTATION, f 415 of the information, and such suit immediately casts a cloud upon the credit of the defendant. A recent case furnishing a negative answer to the above inquiry serves as an apt illustration that such an action should prevail. A disgruntled stockholder sued a cor- poration for dissolution, falsely alleging insolvency, asking the appointment of a receiver. The cause was denied because there had been no arrest or seizure of property. 7 At common law the action of case would lie for maliciously suing out a commission of bankruptcy. 8 What right of action was recognized at common law? We repeat what has often been stated by courts and writers in this country, that by the common law, prior to the passage of certain statutes, actions for the malicious or vexatious prosecution of civil suits were allowed where there had been no ar- rest or seizure of property. 9 Originally, an action of this character was an action on the case in the nature of conspiracy, in which the plaintiff in the declaration charged the defendant with having falsely and ma- liciously caused his arrest. 10 But in 1259 the statute of Marlbridge, 52 Henry III, was passed, allowing the successful defendant judgment for costs against the plaintiff. It was the purpose of this statute that the costs so recoverable (and they included attorney fees) should compensate him for the wrong. There- after a right of action for a groundless prosecution was denied upon the theory or principle, as stated bv one court, that "if every suit may be retried on an al- legation of malice, the evil would be intolerable and 7 Cincinnati Daily Tribune Co. v. Brack, 61 Ohio St. 489, 76 Am. St. Rep. 433, 56 N. E. 198. 8 Chapman v. Piekerskill, 2 Wils. 145. » This is discussed; in Pope v. Pollock, 46 Ohio St. 369; Whipple T. Fuller, 11 Conn. 582, 29 Am. Dec. 330. 10 Chambers v. Taylor, Cro. Eliz. 900; Coxe v. Wirrall, Cro. Jac. 193; Wear v. Wells, 3 Bulst. 284. § 415 MALICIOUS PROSECUTION. 810 the malice in each subsequent suit would be likely to be greater than in the first; and that if a defendant ought to have damages upon a false claim, then the plaintiff ought to have damages upon a false plea, which would make litigation interminable." 11 In this country, many decisions following the Eng- lish rule, as modified by act of parliament, hold that the action will not lie unless some special damage can be shown other than that usually incident to a civil suit, it being contended by some that the weight of authority is against the maintenance of the action where there has been none other than the preliminary process issued, no arrest or no seizure of property. 12 The supreme courts in ten states have adopted this rule, as follows: Georgia, 13 Illinois, 14 Iowa, 15 Mary- land, 16 Nebraska, 17 New Jersey, 18 North Carolina, 19 11 Quartz Hill Min. Co. v. Eyre, 11 Q. B. 674, 690; Spear, J., In Pope v. Pollock, 46 Ohio St. 369, 15 Am. St. Rep. 608, 21 N. E. 356, citing numerous cases. 12 See notes following for authorities in different states. Spear, J., in Pope v. Pollock, 46 Ohio St. 369, 15 Am. St. Rep. 608, 21 N. E. 356, cites many cases in point. Mr. John D. Lawson, art. 21, Am. Law Reg. 368, says: "The great weight of authority appears to be against the right of action for the unfounded and malicious prose- cution of an ordinary civil action. With the majority are all but one of the text-writers." Ray v. Law, 1 Pet. C. C. 207, Fed. Cas. No. 11,592; Newell on Malicious Prosecution, sec. 24, and cases. 13 Mitchell v. S. W. R. R. Co., 75 Ga. 398. See Juchter v. Boehm etc. Co., 67 Ga. 534. 14 Gorton v. Brown, 27 111. 489, 81 Am. Dec. 245; Smith v. Michi- gan Buggy Co., 175 111. 619, 67 Am. St. Rep. 242, 51 N. E. 569. 15 Wetmore v. Mellinger, 64 Iowa, 741, 52 Am. Rep. 465, 18 N. W. 870; Smith v. Hintrager, 67 Iowa, 109, 24 N. W. 744. 16 McNamee v. Minke, 49 Md. 122. 17 Rice v. Day, 34 Neb. 100, 51 N. W. 464. is Woodmansie v. Logan, 2 N. J. L. 93; Potts v. Imlay, 4 N. J. L. 330, 7 Am. Dec. 603; Bitz v. Meyer, 40 N. J. L. 252, 29 Am. Rep. 233. 19 Ely v. Davis, 111 N. C. 24, 15 S. E. 878; Terry v. Davis, 114 N. C. 31, 18 S. E. 943. 811 INJURY TO EIGHT OF EEPUTATION. 8 415 Ohio, 20 Pennsylvania, 21 South Carolina, 22 Texas, 23 and Wisconsin. 24 Different courts and writers, however, have, in an effort to ascertain and set down the weight of au- thority, made conflicting statements. One writer cor- rectly states that "the more generally approved doc- trine seems to be that, for the prosecution of a civil action maliciously and without reasonable or prob- able cause, to the injury of a party, he may maintain an action for damages, though there was no inter- ference with his person or property." 25 This rule is well supported, and is in direct contrast to the modi- fied English rule, but is in harmony with strict com- mon law. And, as has been well remarked by some courts adhering to this doctrine, the reason of the English rule not applying to our condition with refer- ence to the recovery of costs, the decisions under the act of parliament cannot, with reason, apply with us, where the recovery of the costs are confined to nar- rower limits. The courts of fifteen states adopt the rule just stated, that an action will lie for the malicious prose- cution of a civil action, although there is no inter- ference with the person or property, as follows: Cal- 20 Cincinnati Daily Tribune Co. v. Bruck, 61 Ohio St. 489, 76 Am. St. Rep. 433, 56 N. E. 198. 21 Kramer v. Stock, 10 Watts, 115; Muldoon v. Rickey, 103 Pa. St. 110, 49 Am. Rep. 117; Mayer v. Walter, 64 Pa. St. 283; Eberly r. Rupp, 90 Pa. St. 259; Norcross v. Otis, 152 Pa. St. 481, 34 Am. St. Rep. 669, 25 Atl. 575. 22 Whalfey v. Lawton, 57 S. C. 256, 35 S. E. 558; Frierson v. Hewitt, 2 Hill (S. C), 499; Thomas v. Rouse,. 2 Brev. 75. 23 McCord-Collins Commerce Co. v. Levi, 21 Tex. Civ. App. 109, 50 S. W. 606. 24 Luby v. Bennett, 111 Wis. 613, 87 Am. St. Rep. 897, 87 N. W. 804. 25 Newell on Malicious Prosecution, sees. 24, 32, and cases. § 416 MALICIOUS PROSECUTION. 812 ifornia, 26 Colorado, 27 Connecticut, 28 Indiana, 29 Kan- sas, 30 Kentucky, 31 Louisiana, 32 Massachusetts, 33 Michigan, 34 Minnesota, 35 Missouri, 36 New York, 3 * North Dakota, 38 Tennessee, 39 Vermont. 40 § 416. Same Continued— Conflict of Decision Further Considered— Cases Sustaining Action Where There is an Arrest or Seizure of Property. — Such is the position taken in a great number of cases with reference to this question, the authorities last cited following the common law, and the former supporting what may be termed the English rule as modified by act of parliament. As between these two array of author- ities, if we were to enter into a mathematical argu- ment, we should say that the authorities supporting the original common-law rule, that such an action 26 Bastin v. Bank of Stockton, 66 Cal. 123, 56 Am. Rep. 77, 4 Pac. 1106. 27 Hoyt v. Macon, 2 Colo. 113. 28 Whipple v. Fuller, 11 Conn. 582, 29 Am. Dec. 330. 29 MeCardle v. McGinley, 86 Ind. 538, 44 Am. Rep. 343; Lockenour v. Sides, 57 Ind. 360, 26 Am. Rep. 58. 30 Marbourg v. Smith, 11 Kan. 554. 31 Cox v. Taylor, 10 B. Mon. 17; Woods v. Finnell, 13 Bush, 629. 32 Johnson v. Meyer, 36 La. Ann. 333. 33 Allen v. Codman, 139 Mass. 136, 29 N. E. 537; Dolan v. Thomp- son, 129 Mass. 204; Sartwell v. Parker, 141 Mass. 405, 5 N. E. 807. 34 Antcliff v. June, 81 Mich. 477, 21 Am. St. Rep. 533, 45 N. W. 1019; Brand v. Hinchman, 68 Mich. 590, 13 Am. St. Rep. 362, 36 N. W. 664. 35 McPherson v. Runyon, 41 Minn. 524, 16 Am. St. Rep. 727, 43 N. W. 392; O'Neil v. Johnson, 53 Minn. 439, 39 Am. St. Rep. 615, 55 N. W. 601. 36 Smith v. Burrus, 106 Mo. 94, 27 Am. St. Rep. 329, 16 S. W. 881; Brady v. Ervin, 48 Mo. 533. 37 Vanduzor v. Linderman, 10 Johns. 106; Smith v. Smith, 56 How. Pr. 316; Pangburn v. Bull, 1 Wend. 345. 38 Kolka v. Jones, 6 N. Dak. 461, 66 Am. St. Rep. 615, 71 N. W. 558. 89 Lipscomb v. Shofner, 96 Tenn. 112, 33 S. W. 818. 40 Closson v. Staples, 42 Vt. 209, 1 Am. Rep. 316. 813 INJURY TO EIGHT OF REPUTATION^ § 417 does lie, had the best of it by five states. But if we were to add to those following the English statutory- rule those which we next take up, which hold that the action lies when there has been an arrest or a seizure of property, which inferentially at least sup- port the English modified rule, it would be difficult to tell on which side of the scale was the greater weight, those supporting the original common law being perhaps one state in the majority. Passing next to those decisions supporting the rule that, whenever one has been wrongfully arrested in a civil proceeding, or wrongfully deprived of the use or enjoyment of his property, or his property has been wrongfully interfered with, an action for ma- licious prosecution will lie, we find that the states of Illinois, Ohio, New York, Virginia and Wisconsin support this rule. 41 The question does not seem to have arisen in the states of Alabama, Arkansas, Dela- ware, Florida, Idaho, Maine, Mississippi, Montana, New Hampshire, Nevada, Oregon, Ehode Island, South Dakota, Utah, Washington, West Virginia, and Wyoming. § 417. Same Continued— Summary of Comments up- on Confusion of Authority and of Principles of the Right Of Action. — All this confusion and conflict, it would seem, is due to a failure to determine what right has been violated, and what the gist of the cause of ac- tion is. Leaving out of consideration the English statutes, having nothing like them in this country, 41 Pope v. Pollock, 46 Ohio St. 367, 15 Am. St. Rep. 608, 21 N. B. 356; Tomlinson v. Warner, 9 Ohio, 104; Fortman v. Rottier, 8 Ohio St. 548, 72 Am. Dec. 606; Newark Coal Co. y. Upson, 40 Ohio St. 17; Shaver v. White, 6 Munf. 110, 8 Am. Dec. 730; Dickinson v. May- nard, 20 La. Ann. 66, 96 Am. Dec. 379; Lawrence v. Hogerman, 56 111. 68, 8 Am. Rep. 674; Magmer v. Renk, 65 Wis. 364, 27 N. W. 26; Bump v. Betts, 19 Wend. 421. I 418 MALICIOUS PROSECUTION. 814 and going back to common-law first principles, logic and reason must lead to the conclusion that a man is injured in his reputation when he is deprived of his liberty by means of a malicious prosecution. And if it be a malicious civil action, by analogy to the law of libel and slander, he is injured in his reputation as a business or professional man, or in his occupation, whether the action proceeds no further than the service of appearance process, or whether the auxili- ary remedies — attachment, replevin or injunction — are resorted to, or whether property is interfered with or not. An arrest or seizure of property are elements of damages which are incidents of the wrong of maliciously and without probable cause setting the machinery of the law in motion. "There are but few, if any, wrongs for which the law does not provide a remedy; and if a man is hurt or damaged in his property, business, credit or repu- tation by the malicious commencement or prosecution of a civil suit, without probable cause, the better doc- trine is, that he can maintain an action on the case for such hurt or damage." 42 § 418. Same Continued— Subject Considered with Special Reference to Auxiliary Processes.— But this dis- cussion must be carried one step further, that there may be a full understanding of the law, and an ap- preciation of some of the cases. Maliciously obtain- ing a writ of attachment, in an action properly insti- tuted, deserves special mention. An attachment is not an action, but only auxiliary thereto, and was un- known at common law. 43 If the action in which such process is sought is rightly brought, but the writ of attachment is obtained upon a false affidavit, and the 42 Morse, J., in Brand v. Hinchman, 68 Mich. 590, 13 Am. St Rep. 362, 36 N. W. 664. 43 Kinkead's Code Pleading, sec. 235. S15 INJURY TO EIGHT OF REPUTATION. § 419 property of the defendant is taken thereunder, a wrong is done, but, strictly speaking, it cannot be said to be the malicious prosecution of a civil action. And yet it cannot be considered as malicious abuse of process. Measuring the right of action here arising by the mold of common-law procedure, it would not be malicious prosecution, because this wrong can only arise where an action has been wrongfully com- menced and prosecuted. Where, therefore, the cause of action is properly brought for a debt due, the tak- ing of the property by virtue of an attachment is really the gist of the wrong. 44 But wherever the ac- tion itself is groundless, and a defendant is deprived of the possession, use or enjoyment of property of value, by means of any kind of a writ, attachment, injunction, or by means of a receivership, the gist of the action is the violation of the right of reputation, by maliciously instituting a groundless action, not the wrongful use of the process of the court. 45 An action may be maintained for the malicious prosecu- tion of an action of forcible entry and detainer, 46 or of an injunction, 47 or of replevin. 48 § 419. Malicious Prosecution— Defined and Explained and Distinguished from Kindred Wrongs.— A malicious prosecution is the institution of an action, criminal or civil (according to better authority), 49 in a court of 44 Tomlinson v. Warner, 9 Ohio, 104; Fortman v. Rottier, 8 Ohio St. 548, 72 Am. Dec. 606. For cases on attachment, see Shaver v. White, 6 Munf. 110, 8 Am. Dec. 730; Dickinson v. Maynard, 20 La. Ann. 66, 96 Am. Dec. 606; Lawrence v. Hagerman, 56 111. 68, 8 Am. Rep. 674. 45 Newark Coal Co. v. Upson, 40 Ohio St. 17 (injunction). 46 Pope v. Pollock, 46 Ohio St. 367, 15 Am. St Rep. 608, 21 N. E. 356. 47 Newark Coal Co. v. Upson, supra. 48 Magmer v. Renk, 65 Wis. 364, 27 N. W. 26. 4» Ante, sec. 415. § 420 MALICIOUS PROSECUTION. 816 justice, either with actual or implied malice, with- out probable cause, which terminates in favor of the party complaining, and to his injury. It is distin- guishable from false imprisonment in that in the lat- ter malice is not an essential, although it may be an ingredient, while malice is absolutely essential to malicious prosecution. In false imprisonment, there is a want of probable cause, but it is due generally to a lack of care on the part of the one causing the arrest. The wrong of false imprisonment is an injury to the right of personal liberty, while malicious prose- cution injures the right of personal security — or the reputation. False imprisonment implies force, while malicious prosecution does not. Malicious prosecution is distinguishable from ma- licious abuse of process, in that the latter occurs in a case lawfully instituted, the process being issued for a lawful purpose, but its use is perverted to improper purposes. An arrest under a void warrant consti- tutes false imprisonment, not malicious prosecu- tion. 50 § 420. Termination of Suit.— One of the first essen- tial facts to the maintenance of a cause of action for the malicious prosecution of an action is that the ac- tion claimed to be malicious must have been ter- minated. So long as the case is not terminated one way or the other, and the outcome is in doubt, there can be no right of action for malicious prosecution. 51 so Satilla Mfg. Co. v. Cason, 98 Ga. 14, 58 Am. St. Rep. 287, 25 S. E. 909. See Spice v. Steinruck, 14 Ohio St. 214; Boeger v. Lan- genberg, 97 Mo. 390, 10 Am. St. Rep. 322, 11 S. W. 223, as to dis- tinction between false imprisonment and malicious prosecution. si O'Brien v. Barry, 106 Mass. 300, 8 Am. Rep. 329; Lowe v. Wartman, 47 N. J. L. 413, 1 Atl. 489; Cardival v. Smith, 109 Mass. 158, 12 Am. Rep. 682; Fortman v. Rottier, 8 Ohio St. 550, 72 Am. Dec. 606; Satilla Mfg. Co. v. Cason, 98 Ga. 14, 58 Am. St. Rep. 287, 25 S. E. 909. 817 INJURY TO EIGHT OF REPUTATION. § 420 It is frequently stated that a criminal charge must have been terminated by (1) a verdict of not guilty, (2) grand jury ignoring the bill, 52 but to this may be added (3) an end by a nolle prosequi, 53 or (4) by a dis- charge from bail or imprisonment. 54 Thus a verdict of not guilty, a failure of the grand jury to return a bill, 55 or a formal nolle prosequi, 56 or a discharge either by failure of plaintiff to prosecute, 57 or by a magistrate having charge of the case, amounting to an acquittal, though in this instance it may usually be presumed to lie without trial, or by a committing magistrate, 58 is a termination. Some courts hold that the discharge by an exam- ining magistrate, 59 or by a court without jurisdic- tion, 60 is not sufficient. The record of a magistrate is competent evidence to show the facts of acquittal and discharge.* 1 The termination of a criminal charge because the proceeding is void as wanting in any of the constituent elements authorized by law cannot form the basis of a right of action for mali- 52 Bacon v. Towne, 4 Cush. 217; Fortman v. Kottier, 8 Ohio St. 550, 72 Am. Dec. 606. 53 Douglass v. Allen, 56 Ohio St. 156, 46 N. E. 707. 54 Lowe v. Wartman, 47 N. J. D. 413, 1 Atl. 489. 55 Magowan v. Rickey, 64 N. J. D. 402, 45 Atl. 804: Gilbert v. Em- mons, 42 111. 143, 89 Am. Dec. 412; Shock v. McOhesney, 4 Yeates, 507, 2 Am. Dec. 415; Graves v. Dawson, 130 Mass. 78, 39 Am. Dec. 429. 56 Apgar v. Woolston, 43 N. J. L. 57; Brown v. Randall, 36 Conn. 56, 4 Am. Rep. 35; Hatch v. Cohen, 84 N. C. 602, 37 Am. Rep. 630; Yocum v. Polly, 1 B. Mon. 358, 36 Am. Dec. 583; Driggs v. Burton, 44 Vt. 124; Douglass v. Allen, 56 Ohio St. 156, 46 N. E. 707. Contra, Graves v. Dawson, 130 Mass. 78, 39 Am. Rep. 429. 57 Brown v. Randall, 36 Conn. 56, 4 Am. Rep. 35. 58 Rider v. Kite, 61 N. J. L. 8, 38 Atl. 754; Sweet v. Negus, 30 Mich. 406. 59 Whaley v. Lawton, 57 S. C. 256, 35 S. E. 558. 60 Painter v. Ives, 4 Neb. 122; Bixby v. Brundige, 2 Gray, 129, 61 Am. Dec. 443. 61 John v. Bridgman, 27 Ohio St. 22. Torts, Vol. 1—52 S 421 MALICIOUS PROSECUTION. 818 cious prosecution, such a case, if an arrest is made, giving rise to a cause for false imprisonment. 62 While it is true that a right of action does not ac- crue until the wrongful proceeding has been brought to a final termination in favor of the defendant or accused, still it is not necessary that all proceedings in the action shall end before such right accrues, only that the issues material to the question of the bona fides of the action shall have been tried and closed by a final judgment, being sufficient. 63 § 421. Probable Cause— Defined— Practical Applica- tion. — It has been said that "a definition of probable cause sufficiently exact to meet satisfactorily every possible test would be difficult, if not impossible, to furnish. The complete legal idea expressed by that term is not to be gathered from a mere definition." 64 Probable cause may be easily defined, but the diffi- culty lies in the application of the rule practically, and in a proper understanding of what it is in par- ticular cases by juries. How to make the jury un- derstand what it is and precisely what their function is, is the problem. We think the difficulty lies in a satisfactory determination of the fact, where there is conflicting testimony, rather than in appreciating what probable cause is. The supreme court of California, speaking with ref- erence to the instruction to be made to the jury, said: "But it is necessary for the court, in each instance, to determine whether the facts that they may find from the evidence will or will not establish that issue. 62 Satilla Mfg. Co. v. Cason, 98 Ga. 14, 58 Am. St Rep. 287, 25 S. B. 909. 63 Luby v. Bennett, 111 Wis. 613, 87 Am. St. Rep. 897, 87 N. W. 804. 64 Boeger v. Langenberg, 97 Mo. 390, 10 Am. St Rep. 322, 11 S. W. 223. 819 INJUBY TO BIGHT OF REPUTATION. § 422 Neither is it competent for the court to give to the jury a definition of probable cause, and instruct them to find for or against the defendant according as they may determine that the facts are within or without that definition. Such an instruction is only to leave to them in another form the function of determining whether there was probable cause. The court cannot devest itself of its duty to determine this question, however complicated or numerous may be the facts. It must instruct the jury upon this subject in the con- crete, and not in the abstract, and must not leave to that body the office of determining the question, but must itself determine it, and direct the jury to find its verdict in accordance with such determination. The court should group in its instructions the facts which the evidence tends to prove, and then instruct the jury that if they find such facts to be established, there was or was not probable cause, as the case may be, and that their verdict must be accordingly." 65 The court grounds its view upon considerations of pleading as shown by the early history of this action. It is insisted that, by imposing upon plaintiff the necessity of alleging and proving want of probable cause, this does not change the issue from one of law to one of fact, and as the absence of probable cause is an essential element to plaintiff's right of action, it is at all times to be determined by the court whether the facts proved constituted such probable cause. 66 § 422. Same Continued— Charging the Jury.— The correct rule, however, and the one universally sup- ported by the authorities, seems to be this: If the facts in reference to the existence of probable cause are admitted, or are established beyond controversy, 65 Robinson v. Easton, 93 Cal. 80, 27 Am. St. Rep. 167, 28 Pac. 796. 66 Id.; Bulkeley v. Keteltas, 6 N. T. 387. § 422 MALICIOUS PROSECUTION. 820 then the determination of their legal effect by the court, as matter of law, is absolute. If, however, the facts are controverted, and the evidence is conflicting, then the determination of their legal effect by the court is necessarily hypothetical, and the jury are to be told that if they find the facts in a designated way, then such facts, when so found, do or do not amount to probable cause. But the jury are not to determine whether or not the facts do or do not amount to prob- able cause. 67 Thus we see why the question of probable cause is spoken of as a mixed question of fact and law. Prac- tically demonstrated, the result is about as follows: The jury are first instructed as to what probable cause is in the abstract, thus: Probable cause is a reason- able ground of suspicion, supported by circumstances sufficiently strong in themselves, existing at the time of the acts complained of, and not as they appear afterward in the light of subsequent developments, such as will warrant a cautious man, or (as some put it) a man who is "ordinarily prudent," 6S or one "rea- sonably prudent," 69 or "reasonable" or "impartial 67 Ball v. Rawles, 93 Cal. 222, 27 Am. St. Rep. 174, 28 Pac. 937; Harkrader v. Moore, 44 Cal. 152; Easton v. Bank of Stockton, 66 Cal. 125, 56 Am. Rep. 77, 4 Pac. 1106; Bacon v. Towne, 4 Cush. 217; Burk v. Howley, 179 Pa. St 539, 57 Am. St. Rep. 607, 36 Atl. 327; People v. Kilvington, 104 Cal. 86, 43 Am. St. Rep. 73, 37 Pac. 799; Barbright v. Tammany, 158 Pa. St. 545, 38 Am. St. Rep. 853, 28 Atl. 135; Kolka v. Jones, 6 N. Dak. 461, 66 Am. St. Rep. 615, 71 N. W. 558; Johnson v. Miller, 69 Iowa, 562, 58 Am. Rep. 231, 27 N. W. 743; Donnelly v. Daggett, 145 Mass. 314, 14 N. E. 161; Gulf etc. Ry. Co. v. James, 73 Tex. 12, 15 Am. St. Rep. 743, 10 S. W. 744; Speck v. Judson, 63 Me. 207; Thaule v. Krekeller, 81 N. Y. 428; Burton v. St. Paul etc. Ry., 33 Minn. 189, 22 N. W. 300; Gulf etc. Ry. Co. v. Jones, 73 Tex. 12, 15 Am. St. Rep. 743, 10 S. W. 744. Code provision in Georgia, making it a question for jury: Coleman v. Allen, 79 Ga. 637, 11 Am. St. Rep. 449, 5 S. E. 204. 68 Heyne v. Blair, 62 N. Y. 19; Ritter v. Ewing, 174 Pa. St 341, 34 Atl. 584. 69 Eggett v. Allen, 106 Wis. 634, 82 N. W. 556. 821 INJURY TO EIGHT OF REPUTATION. § 422 and reasonable," 70 or "cautious," 71 or "ordinarily- cautious," 72 or "a man of ordinary caution and pru- dence, acting conscientiously, impartially and reason- ably, without prejudice," in the belief that the person accused is guilty of the offense charged, 73 or "to be- lieve or entertain a strong suspicion that he had a right to obtain and maintain the injunction." 74 This is the abstract rule of law which the jury are to apply in performing their function in determining the fact in the particular case, as to whether or not the defendant acted upon probable cause. The jury are then told that if they find that there was prob- able cause, as thus defined, they need go no further, but that their verdict should be for the defendant; but if they find that the defendant did not have a rea- sonable ground for belief that the crime charged was committed, or that the accused committed it, 75 but that he maliciously caused the arrest, and preferred the charges against the plaintiff, without probable cause to believe that he was guilty of the offense al- leged against him, then they should find for the plain- tiff. 76 If the facts are in dispute, the court does not determine the fact as to whether or not there was 70 Stone v. Stevens, 12 Conn. 219, 30 Am. Dec. 611. 71 Ash v. Marlow, 20 Ohio, 119; Eggett v. Allen, 106 Wis. 634, 82 N. W. 556; Boss & Co. v. Innis, 35 111. 487, 85 Am. Dec. 373; Diers v. Mallon, 46 Neb. 121, 50 Am. St. Rep. 598, 64 N. W. 722. 72 Shaul v. Brown, 28 Iowa, 37, 4 Am. Rep. 151; Cole v. Curtis, 16 Minn. 195; Casey v. Sevatson, 30 Minn. 516, 16 N. W. 407. 73 Ross & Co. v. Innis, 35 111. 487, 85 Am. Dec. 373; Ash v. Mar- low, 20 Ohio, 119. 74 Newark Coal Co. v. TTpson, 40 Ohio St. 17. 75 Seibert v. Price, 5 Watts & S. (Pa.), 438, 40 Am. Dec. 525; Cockfleld v. Braveboy, 2 McMull. (S. C.) 270, 39 Am. Dec. 123; Stone v. Stevens, 12 Conn. 219, 30 Am. Dec. 611; Hickman v. Griffin, 6 Mo. 37, 34 Am. Dec. 124; Harpham v. Whitney, 77 111. 32; Mitchell v. Logan, 172 Pa. St. 349, 33 Atl. 554; Paddock v. Watts, 116 Ind. 146, 9 Am. St. Rep. 832, 18 N. E. 518. 76 See Kinkead's Instructions, sec. 339. § 423 MALICIOUS PROSECUTION. 822 probable cause for instituting the action, for that is the function of the jury in such case, under appropri- ate instruction. § 423. Same Continued— Dependent" upon Guilt or Belief. — It is sometimes said that probable cause does not depend upon the guilt of the accused, nor upon the actual belief of the prosecutor. 77 The foregoing statement cannot be said to be altogether true, for if the accused is actually guilty, this is absolute proof of probable cause — or, rather, it does away with the proof of probable cause. 78 It would be better to say that the want of guilt is immaterial upon the question of probable cause, for while guilt is, at least, strong evidence upon the ques- tion, the accused may be entirely free from guilt and blameless, and still the surrounding circumstances be such as would warrant any reasonable man in believ- ing in his guilt. The innocence of the accused, then, is not material to the proof of want of probable cause. On the other hand, the last part of the above state- ment is true, for irrespective of the existence or want of actual belief on the part of the prosecutor, if the facts actually existing or known to him are such as will warrant a belief in the guilt of the accused, there is probable cause. 79 And again, if the facts known do not warrant such belief, the mere fact that the prosecutor does believe in the guilt of the accused does not establish probable cause. 80 Again, it is said 77 Shaul v. Brown, 28 Iowa, 37, 4 Am. Rep. 151; Harpham v. Whitney, 77 111. 32; Jacks v. Stimpson, 13 111. 702; Mitchell v. Logan, 172 Pa. St. 349, 33 Atl. 554; Lytton v. Baird, 95 Ind. 249. 78 Adams v. Lisher, 3 Blackf. 241, 25 Am. Dec. 102; Bartlett v. Brown, 6 R. I. 37, 75 Am. Dec. 675; Plummer v. Gheen, 10 N. C. (3 Hawks) 66, 14 Am. Dec. 572; Galloway v. Stewart, 49 Ind. 156, 19 Am. Rep. 677. See post, sec. 426. 79 See post, 430. so Jacks v. Stimpson, 13 111. 702. 823 INJDET TO EIGHT OF EEPUTATION. § 424 that three things must concur: 1. Facts and circum- stances warranting a reasonable belief; 2. An actual belief; 3. And an actual knowledge of the facts and circumstances. 81 Here, also, is lost sight of the con- dition in which actual guilt takes the place of and does away with proof of all three. Neither is an ac- tual knowledge of the facts and circumstances upon which the belief is based necessary; for while float- ing rumors cannot be the basis of a probable cause, still representations of those who have opportunity for knowledge, or who have investigated, may be. 82 This belief need only exist at the time of acting, so that knowledge of facts obtained subsequent there- to, indicating the innocence of the accused, does not render the prosecutor liable. 83 § 424. Advice of Counsel, Magistrates and Others- Effect. — It is conclusively settled that where a prose- cution is begun upon the advice of an attorney given after a full and fair disclosure of the facts as known, there can be no action for malicious prosecution, be- cause probable cause is conclusively presumed as matter of law, such advice being a full defense. 84 To 81 Harkrader v. Moore, 44 Cal. 144. 82 Smith v. Ege, 52 Pa. St. 419. 83 French v. Smith, 4 Vt. 363, 24 Am. Dec. 616. 84 Adams v. Bicknell, 126 Ind. 210, 22 Am. St. Rep. 576, 25 N. E. S04; Black v. Buckingham, 174 Mass. 102, 54 N. B. 494; Olmstead v. Partridge, 16 Gray, 381-383; Allen v. Codman, 139 Mass. 136, 29 N. E. 537; Pawlowski v. Jenks, 115 Mich. 275, 73 N. W. 238; Davis v. Pacific Tel. etc. Co., 127 Oal. 312, 59 Pac. 698; Eichoff v. Fidelity etc. Co., 74 Minn. 139, 76 N. "W. 1030; Fletcher v. Chicago etc. Ry., 109 Mich. 363, 67 N. W. 330; Stewart v. Sonneborn, 98 U. S. 187; Ames v. Snyder, 69 111. 376; Stone v. Swift, 4 Pick. 389, 16 Am. Dec. 349; O'Neal v. McKinna, 116 Ala. 607, 22 South. 905; Monaghan v. Cox, 155 Mass. 487, 31 Am. St. Rep. 555, 30 N. E. 467. Gulf etc. Ry. v. James, 73 Tex. 12, 15 Am. St. Rep. 743, 10 S. W. 744, seems to be contra, but the circumstances of the advice are not disclosed. See numerous cases supporting text, 26 Am. St. Rep. 144, note; Tryon § 424 MALICIOUS PROSECUTION. 824 entitle the defendant to the benefit of this defense, it is necessary that he should have made a full and fair disclosure of all facts which he knows, and which are material to the case, to the counsel. 85 It is con- sidered by some authority that he must use reason- able diligence to find out the true facts in the case, 80 while others deny this doctrine, which is the sounder view. 87 The true rule, it would seem, is, that all facts known to be true must be stated to counsel, and those which indicate existence of other facts must be followed up or stated to counsel, -that he may know the exact position of his client. 88 The advice must also be sought, given and acted upon in good faith and honestly. 89 So if the prosecution be entered upon and carried along by collusion between attorney and v. Pingree, 112 Mich. 338, 67 Am. St. Rep. 398, 70 N. W. 905; Wenger v. Phillips, 195 Pa. St. 214, 78 Am. St. Rep. 810, 45 Atl. 927. 85 Same cases, ante, note 84; Williams v. Casebeer, 126 Cal. 77, 58 Pac. 380; Kompass v. Light, 122 Mich. 86, 80 N. W. 1008; Fletcher v. Chicago etc. Ry., 109 Mich. 363, 67 N. W. 330; Roy v. Goings, 112 111. 656; Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; Sherburne v. Rodman, 51 Wis. 474, 8 N. W. 414; Paddocks v. Watts, 116 Ind. 146; Smith v. Austin, 49 Mich. 286, 13 N. W. 593; Emerson v. Cochran, 111 Pa. St. 619, 4 Atl. 498; Bartlett v. Brown, 6 R. I. 37, 75 Am. Dec. 675; Adams v. Bicknell, 126 Ind. 210, 22 Am. St. Rep. 576, 25 N. E. 804. 86 Aherns etc. Mfg. Co. v. Hoeher, 21 Ky. Law Rep. 299, 51 S. W. 194; Anderson v. Columbia etc. Trust Co. (Ky.), 50 S. W. 40; Parker v. Parker, 102 Iowa, 500, 71 N. W. 421. See Newell on Malicious Prosecution, 318. 87 Johnson v. Miller, 69 Iowa, 562, 58 Am. Rep. 231, 29 N. W. 743; Dunlap v. New Zealand Ins. Co., 109 Cal. 365, 42 Pac. 29; Holliday v. Holliday, 123 Cal. 26, 55 Pac. 703; Hess v. Oregon etc. Baking Co., 31 Or. 503, 49 Pac. 803. 88 Dunlap v. New Zealand Ins. Co., 109 Cal. 365, 42 Pac. 29; Newell on Malicious Prosecution, 319. 89 Williams v. Casebeer, 126 Cal. 77, 58 Pac. 380; Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; Sherburne v. Rodman, 51 Wis. 474, 8 N. W. 414; Cole v. Curtis, 16 Minn. 161; Center v. Spring, 2 Iowa, 393; O'Neal v. McKenna, 116 Ala. 607, 22 South. 905; Hamilton v. Smith, 39 Mich. 222. 8SJ5 INJUBY TO EIGHT OF EEPUTATION. § 424 client, and the advice be used simply to cloak their malicious intentions, it will be no defense. 90 The client cannot be held responsible for the errors and mistakes of the attorney. 91 So where the attorney erroneously assumes that the facts stated constitute a crime, the client is not liable. 93 Nor is he respon- sible when the counsel, on his own motion, or on in- formation from other sources, proceeds to institute suit against the suspected person. 93 The advice of a student at law is not a defense; no one is justified in relying upon such advice. And, of course, advice of counsel cannot be insisted upon as a defense where it appears that the one preferring complaint does not believe the accused guilty. 94 While the advice of an attorney at law is deemed sufficient proof of probable cause, that of one who is not a member of the profession has not that effect. So numerous cases hold that the advice of a magis- trate or justice of the peace is not a defense. 95 But if one simply states the facts to a magistrate, and the latter acts upon his own responsibility and issues a warrant of arrest, although the facts do not consti- tute a crime, the former cannot be held for the error of the magistrate. 96 In California it is said: "What- 80 Hamilton v. Smith, supra. 91 Wenger v. Phillips, 195 Pa. St. 214, 78 Am. St. Rep. 810, 45 Atl. 927. 92 Kompass v. Light, 122 Mich. 86, 80 N. W. 1008; Paddock v. Watts, 116 Ind. 146, 9 Am. St. Rep. 832, 18 N. B. 518. 93 Tocum v. Polly, 1 B. Mon. 358, 36 Am. Dec. 583. 94 Vann v. McCreary, 77 Cal. 434, 19 Pac. 826. 95 Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101; Sutton v. Mc- Connell, 46 Wis. 269, 50 N. W. 414; Brobst v. Ruff, 100 Pa. St. 91, 45 Am. Dec. 358; Mauldin v. Ball, 104 Tenn. 597, 58 S. W. 248; Olmstead v. Partridge, 16 Gray, 381; Finn v. Frink, 84 Me. 261, 30 Am. St. Rep. 348, 24 Atl. 851. 96 Mental v. Hippely, 165 Pa. St. 558, 30 Atl. 1021; Halm v. Schmidt, 64 Cal. 285, 30 Pac. 818; Newman v. Davis, 58 Iowa, 447, § 425 MALICIOUS PROSECUTION. 826 ever may be the rule in other states, it was held in this state, in Hahn v. Schmidt, 64 Oal. 284, 30 Pac. 818, that the advice of a justice of the peace, upon the facts stated to him by the complainant that a crime had been committed, and upon which he issued a warrant of arrest, is sufficient to exonerate the com- plainant from liability for the arrest." 97 The fact that a defendant took and acted upon the advice of officers, policemen and detectives may be shown in evidence, not, however, as a defense, but merely as a circumstance or fact that may be taken into consid- eration by the jury in awarding the damages. 98 § 425. Acting upon Information Received from Others. It cannot be expected that persons, in making crim- inal complaints, should always act upon facts person- ally known to them, but they may be allowed to act upon information which they obtain from others, whenever it is of a creditable nature, and is such as would warrant an ordinarily prudent person, acting in good faith, to believe that the accused was guilty of the crime charged. Prudence requires of a person preferring complaint that he shall make such investi- gation as will reasonably satisfy him of the truth of the facts. Men cannot be expected to be personally cognizant of all the complicated facts of a crime com- mitted, and oftentimes public welfare demands prompt action. It depends largely upon the char- acter of the person from whom information is re- 10 N. W. 852; Farley v. Danks, 30 Eng. L. & Eq. 119; McNeely v. Driskill, 2 Blackf. 259. 97 Ball v. Rawles, 93 Cal. 222, 27 Am. St. Rep. 174, 28 Pac. 937; Similar rulings have also been made in Sisk v. Hunst, 1 W. Va. 53; Teal v. Fissel, 28 Fed. 351; Newman v. Davis, 58 Iowa, 447, 10 N. W. 852. 98 Hirsh v. Feeney, 83 111. 548; Newell on Malicious Prosecution, p. 323. 827 INJUKY TO EIGHT OF EEPUTATION. § 426 ceived, as to whether it should be deemed reliable. If he should be of bad reputation, little reliance should be placed upon him. 09 Nor is mere general suspicion sufficient. 100 § 426. Conviction as Evidence of Probable Cause — Conviction for the crime charged in the prosecution claimed to be malicious and without probable cause is also held conclusive as to the existence of cause for the institution of the complaint or action. 101 This rule has been held good, though the verdict be ob- tained by false testimony, and is afterward set aside for newly discovered evidence and a verdict of not guilty returned. 102 It is considered, too, that con- viction upon the first trial is sufficient, though there be another trial and the accused is acquitted, 103 or though there be an acquittal on an appeal, 104 or though it be followed by successful habeas corpus pro- ceedings. 105 And it has even been said that a dis- agreement of jurors in a criminal prosecution is prima ■facie evidence of probable cause. 106 The fact, how- ever, that one has been held to answer before the grand jury by the examining court is not conclusive of probable cause, because the hearing in such case is 99 Chapman v. Dunn, 56 Mich. 31, 22 N. W. 101; Brown v. Willoughby, 5 Colo. 1; Bornholdt v. Souillard, 36 La. Ann. 103; Lamb v. Galland, 44 Cal. 609; Anderson r. Friend, 71 111. 475. ioo Stone v. Stevens, 12 Conn. 219, 30 Am. Dec. 611. 101 Griffis v. Sellers, 19 N. C. (2 Dev. & B.) 492, 31 Am. Dec. 422; Parker v. Farley, 10 Cush. 279; Parker v. Huntington, 7 Gray, 36, 66 Am. Dec. 455; Holliday v. Holliday, 123 Cal. 26, 55 Pac. 703; Hartshorn v. Smith, 104 Ga. 235, 30 S. E. 666; Morrow v. Wheeler & Wilson Mfg. Co., 165 Mass. 349, 43 N. E. 105; Womack v. Circle, 29 Gratt. 192. 102 Parker v. Huntington, 7 Gray, 36, 66 Am. Dec. 455. 103 Morrow v. Wheeler & Wilson Mfg. Co., supra. 104 Adams v. Bicknell, 126 Ind. 210, 22 Am. St. Rep. 576. 105 Holliday v. Holliday, 123 Cal. 26, 55 Pac. 703. ioo Johnson v. Miller, 63 Iowa, 529, 50 Am. Rep. 758. § 427 MALICIOUS PROSECUTION. 82S only preliminary. 107 The same principle is applica- ble in civil cases where parties have appeared and proof has been heard on both sides, and a decree or judgment is rendered thereon, the same is conclusive evidence of probable cause, unless other matters be relied upon to impeach the judgment or decree and show that it was obtained by fraud. 108 It is perhaps the true rule that in the consideration of a conviction or judgment as evidence of probable cause in cases of malicious prosecution, the fact that the same were brought about or procured by fraud or undue means, may be shown by way of rebuttal of this presump- tion. 109 We find also some authority which does not treat a conviction which has been set aside as con- clusive evidence of probable cause, but merely as evi- dence bearing upon the point. 110 § 427. Acquittal as Evidence of Probable Cause.— On the other hand, while the defendant in an action for malicious prosecution may show a conviction in the former case as a complete defense, the plaintiff cannot claim an acquittal as positive proof of the want of probable cause. The burden is upon him to show by a preponderance of evidence that the prose- cution was without probable cause, and maliciously instituted and carried on, his acquittal being merely one item of evidence, there being no presumption of the want of probable cause from it as matter of 107 Diemer v. Herber, 75 Cal. 287, 17 Pae. 205. 108 Spring v. Besore, 12 B. Mon. 551; Crescent City L. S. etc. Co. v. Butchers' Union etc. Co., 120 U. S. 141, 7 Sup. Ct. Rep. 472. 109 Grohman v. Kirschman, 168 Pa. St. 189; Munns v. Du Pont, 3 Wash. C. C. 31, Fed. Cas. No. 9926, 1 Am. Lead. Cas. 217; Dowdell v. Copy, 129 Cal. 168, 61 Pac. 948; Hartshorn v. Smith, 104 Ga. 235, 30 S. E. 666; Clements v. Odorless Ex. App. Co., 67 Md. 605, 1 Am. St. Rep. 409, 10 Atl. 442, 13 Atl. 632. no Goodrich v. Warner, 21 Conn. 432; Bowman v. Brown, 52 Iowa, 437, 3 N. W. 609; Burt v. Place, 4 Wend, 591. 829 INJURY TO EIGHT OP REPUTATION. § 427 law. 111 It perhaps may seem strange at first glance that a conviction or judgment not obtained by fraud should, when inquiry is made into the same state of facts in an action in case for the malicious prosecu- tion, be allowed as a full and complete defense, and an acquittal by a verdict duly rendered should not operate as conclusive proof of the want of probable cause in an action brought by the defendant in the or- iginal case. In case of acquittal, the complainant may not have been in full possession of facts subsequently de- veloped which do not warrant a conviction, and as a reasonably prudent person could not have known them, and probable cause must be based upon facts known by such party at the time. 112 If an acquittal were to be taken as conclusive evidence of the want of probable cause, few would be found who would risk making complaint. A great many decisions have been rendered upon the question of the effect of the discharge of one ac- cused of crime by an examining magistrate, the gen- eral consensus of judicial opinion being that such dis- charge may constitute prima facie, but not conclusive, evidence of the want of probable cause. 113 It does not seem to be a reasonable rule to consider the dis- 111 Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; Boeger v. Langenberg, 97 Mo. 390, 10 Am. St. Rep. 322, 11 S. W. 223; Sweeney v. Perney, 40 Kan. 102, 19 Pac. 328; Bitting v. Ten Eyck, 82 Ind. 421, 42 Am. Rep. 505; Eastman v. Monastes, 32 Or. 291, 67 Am. St. Rep. 531; Adams v. Bicknell, 126 Ind. 210, 22 Am. St. Rep. 576, 25 N. E. 805. 112 Mclntire v. Levering, 148 Mass. 546, 12 Am. St. Rep. 594, 20 N. E. 191; Harkrader v. Moore, 44 Cal. 144. 113 Ash v. Marlow, 20 Ohio, 119; Philpat v. Lucas, 101 Iowa, 478, 70 N. W. 625; citing Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; Williams v. Vanmeter, 8 Mo. 339, 41 Am. Dec. 644; Griffis v. Sellers, 19 N. C. (2 Dev. & B.) 492, 31 Am. Dec. 422; Bitting v. Ten Eyck, 82 Ind. 421, 42 Am. Rep. 505; Thompson v. Rubber Co., 56 Conn. 493, 16 Atl. 554; Hidy v. Murray, 101 Iowa, 65, 69 N. W. 1138; Ritter v. Ewing, 174 Pa. St. 341, 34 Atl. 584. I 428 MALICIOUS PROSECUTION. 830 charge of a person by an examining court, magis- trate or police court, as entitled to weight even as prima facie evidence of want of probable cause, thus dispensing, as it does, with other proof on the part of the plaintiff in the action as to this element in mali- cious prosecution, thus casting the burden upon de- fendant to show that he did act upon probable cause. So some courts adopting a similar view have merely considered the action of the examining magistrate as constituting the end or termination of the case. 11 * Proof that one was held to bail by an examining mag- istrate establishes prima facie probable cause. 115 So an acquittal, either through disagreement by the jury, as well as by agreement, as has been stated, is not to be considered as conclusive evidence of the lack of probable cause. 116 Indeed, disagreement has been said, and with considerable force, to constitute prima facie evidence of existence of probable cause. 117 § 428. Malice as an Element of the Wrong. — Malice is one of the essential ingredients of the wrong of malicious prosecution. It may be either express or implied. It is express when the complaint or the action is instituted with full knowledge of its ground- lessness. It is implied when the person lodges a complaint or institutes an action without having ex- ercised that degree of care, prudence or caution which 114 Staub v. Van Benthuysen, 36 La. Ann. 467; Heldt v. Webster, 60 Tex. 207. lis Ganea v. Southern Pacific R. Co., 51 Cal. 140. lie Stewart v. Sonneborn, 98 U. S. 187; Sherwood v. Reed, 63 Iowa, 529, 95 Am. Dec. 284; Johnson v. Miller, 63 Iowa, 529, 50 Am. Rep. 758, 17 N. W. 34; Bitting v. Ten Eyck, supra; Grant v. Denel, 3 Rob. (La.) 17, 38 Am. Rep. 228; Wheeler v. Nesbitt, 24 How. 544; Cole v. Curtis, 16 Minn. (182), 161; Parkhurst v. Mastellar, 57 Iowa, 474, 10 N. W. 864. iit Johnson v. Miller, 63 Iowa, 529, 50 Am. Rep. 758, 17 N. W. 34. 831 INJURY TO EIGHT OF REPUTATION. § 429 an ordinarily prudent, careful person should have ex- ercised, in ascertaining the truth of the charge or the justness of the right of action. The lack of care and prudence supplies actual intent or malice. Or it may be termed "malice in fact," or "malice in law" — the former when there is intentional ill-will; the latter when malice is inferred from the want of probable cause. Both malice and want of probable cause are essential ingredients. If there is actual ill-will, or an intentional preferring of a false charge, known to be false, actual malice exists, with consequent want of probable cause. If there is a lack of the required care, there is a want of probable cause, and hence consequent malice in law, the two elements thus con- curring and self-dependent. 118 § 429. Malice Defined. — Actual malice, as we find it in this wrong, means ill-will, hatred, or a wrongful or malevolent design against another, a purpose to injure another, or an evil design or intention to do a bad thing. 119 It is not restricted to actual anger, hatred and revenge, but includes every other unlaw- ful and unjustifiable motive. 120 In civil law it is gen- erally considered as a manifestation of hatred or ill- will toward the person, in contrast to the light in which it is viewed in criminal law, where the idea is not necessarily spite malevolence toward a particular person, but evil design in general, the dictate of a 118 Sunford v. Dietrichs, 93 Ala. 565, 30 Am. St Rep. 79, 9 South. 308; Paddock v. Watts, 116 Ind. 146, 9 Am. St. Rep. 832, 18 N. B. 518; Toeum v. Polly, 1 B. Mon. 358, 36 Am. Dec. 583; Dempsey v. State, 27 Tex. App. 269, 11 Am. St. Rep. 193, 11 S. W. 372; Maloney v. Doane, 15 La. Ann. 278, 35 Am. Dec. 204; Coleman v. Allen, 79 Ga. 637, 11 Am. St. Rep. 449, 5 S. E. 204; Kolka v. Jones, 6 N. Dak. 461, 66 Am. St. Rep. 615, 71 N. W. 558. 119 Shannon v. Jones, 76 Tex. 141, 13 S. W. 477; Dempsey v- State, 27 Tex. App. 269, 11 Am. St. Rep. 193, 11 S. W. 372. 120 Gee v. Culver, 13 Or. 598, 11 Pac. 302. § 430 MALICIOUS PROSECUTION. 832 wicked, depraved and malignant heart; a mind devoid of all social duty, and fatally bent on mischief. 131 Its general use is to express an act done without any sufficient reason, when the act is wrong in itself. Malice in law is that which may he inferred from the unlawful act which is done willfully and pur- posely, but without any motive to injure another, or where the act is done through mere wantonness or carelessness 122 § 430. Malice Continued— How Shown— Practical Deductions. — Much time and space has been spent in expatiating the legal doctrine of malice. Its opera- tion is some different in civil cases than in criminal procedure. It is or may be present in the tort under consideration, in false imprisonment or in libel and slander, and it is said that it has a different meaning here than when used in criminal law. One further fact should first be observed with reference to its presence in malicious prosecution. If there is prob- able cause for instituting a criminal complaint, it does not matter how much one may be actu- ated by malice, there is in such case no legal liability. 123 Again, it is said in one decision that "while the absence of probable cause is not the equivalent of malice, and does not per se establish malice, yet it is evidence of malice to be considered by the jury, and may of itself justify a conclusion on their part that the motive of the prosecutor was malicious. Malice may also be inferred, of course, from the circumstances surround- 121 State v. Pike, 49 N. H. 399, 6 Am. Rep. 533; Commonwealth v. Webster, 5 Cush, 295, 52 Am. Dec. 711. 122 Lunsford v. Dietrich, 93 Ala. 565, 30 Am. St. Rep. 79, 9 South. 308. 123 Lunsford v. Dietrich, 93 Ala. 565, 30 Am. St. Rep. 79, 9 South. 308, and cases cited. 833 INJURY TO EIGHT OF KEPUTATION. § 430 ing and attending the prosecution, the conduct and declarations of the prosecutor, his activity in and about the case, his efforts therein to secure some per- sonal end. Indeed, the existence of malice being a fact which, in the nature of things, is incapable of positive, direct proof, it must, of necessity, be rested on inferences and deductions from facts which can be laid before the jury." ia4 The first part of the foregoing quotation appears to be erroneous and the latter part sound. The quaere is, What shall the court instruct the jury? If they were instructed that the absence of probable cause is not the equivalent of malice, and yet were told that they might draw the inference of malice from the want of probable cause, in the absence of specific evidence of malice which in many cases is im- probable, the jury would be left in some doubt. Such a deduction ignores malice in law. The rule clearly is, that want of probable cause raises a presumption of malice, and no further proof than want of probable cause is necessary to establish it, malice being inferred from a wrongful act, thus disclosing, perhaps, the different light in which mal- ice is viewed in civil law. That malice may be pre- sumed from want of probable cause is well sup- ported. 125 But it is claimed that this deduction of 124 Lunsford v. Dietrich, supra. 125 Brand v. Hinchman, 68 Mich. 590, 13 Am. St. Rep. 362, 36 N. W. 664; Lunsford v. Dietrich, 86 Ala. 250, 11 Am. St. Rep. 37, 5 South. 461; Ross & Co. v. Innis, 35 111. 487, 85 Am. Dec. 373; Newell on Malicious Prosecution, p. 247, sec. 14, and cases cited; Merriam v. Mitchell, 13 Me. 439, 29 Am. Dec. 514; Southwestern R. R. Co. v. Mitchell, 80 Ga. 438, 5 S. E. 490; Smith v. Burrus, 106 Mo. 94, 27 Am. St. Rep. 329, 16 S. W. 881; Yocum v. Polly, 1 B. Mon. 358, 36 Am. Dec. 583; Murphy v. Hobbs, 7 Colo. 541, 49 Am. Rep. 366, 5 Pac. 119; Heap v. Parish, 104 Ind. 36, 3 N. E. 549; Kolka v. Jones, 6 N. Dak. 461, 66 Am. St. Rep. 615, 71 N. W. 558; Madison v. Pennsylvania R. R. Co., 147 Pa. St. 509, 30 Am. St. Rep. 756, 23 Torts, Vol. 1—53 § 430 MALICIOUS PROSECUTION. 834 malice from want of probable cause is not a necessary one, 126 "that such inference is subject to be rebutted by proof that the prosecutor, though not able to show probable cause, instituted the prosecution under an honest belief that the plaintiff was guilty of the offense charged; provided, such belief is founded on facts and circumstances which would produce in the mind of a reasonable and prudent man such serious suspicion of the plaintiff's guilt as to repel the idea that the prosecutor was actuated by malice. Such is the set- tled rule." 127 The courts fall into great error in making such loose and contradictory statements. A deduction of malice in law from proof of facts disclosing a want of probable cause is absolutely essential to make out a case of malicious prosecution; but a deduction of ac- tual malice is not only not necessary, but wholly im- proper, because such malice must be shown by evi- dence. If, as the Alabama court (from which the foregoing quotation is made) says, proof is introduced showing (though defendant be unable to show prob- able cause) that the case was instituted under an honest belief, which is founded upon facts and circum- stances sufficient to produce in the mind of a reason- able and prudent man such serious suspicion of plain- tiff's guilt as to repel the idea that the prosecutor was actuated by malice, then, under such circum- stances, the prosecutor would undoubtedly have prob- Atl. 764; Williams v. Vanmeter, 8 Mo. 339, 41 Am. Dec. 644: Bell v. Graham, 1 Nott & McC. 278, 9 Am. Dec. 687; Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85; Roy v. Goings, 112 111. 656; Turner v. Walker, 3 Gill & J. 377, 22 Am. Dec. 329. 126 Smith v. Burrus, 106 Mo. 94, 27 Am. St. Rep. 329, 16 S. W. 881; Griffin v. Chubb, 7 Tex. 603, 58 Am. Dec. 85. 127 Clopton, J., in Lunsford v. Dietrich, 86 Ala. 250, 11 Am. St. Rep. 37, 5 South. 461; Long v. Rodgers, 19 Ala. 326; Bwing v. San- ford, 21 Ala. 157; McLeod v. McLeod, 73 Ala. 42. 835 INJUKY TO EIGHT OF EEPUTATION. § 431 able cause for instituting the charge, because such facts come up to the full measure of what it takes to constitute probable cause. A man may act iu good faith in preferring a charge or in instituting a cause, but not use good judgment or such care and prudence as is ordinarily observed by ordinary prudent and careful men, his good faith availing him nothing but denial of actual malice. It matters not what motives prompt one, or with however so much good faith he acts, in instituting a complaint or action, if there are not circumstances sufficiently strong to warrant an ordinarily prudent man in the belief that the accused is guilty, or that he has a just cause, he has no right to put the ma- chinery of the courts in motion. In addition to good faith and honesty of purpose, the law exacts of men, in such matters, prudence and care. Good faith, then, is not a defense, though it may be shown for what it may be worth, as reflecting upon the measure of damages. 128 The determination of the question of malice of whatsoever kind is for the jury. 129 § 431. Malice Continued— Province of Court and Jury in Respect Thereto.— The jury should first be in- structed as to the kinds of malice and what is meant by the term; that there are two kinds — legal malice, which does not mean that the defendant had actual ill-will or hatred, or a feeling of revenge, or an un- friendly feeling against the plaintiff; that actual malice, on the other hand, does mean actual ill-will, hatred, revenge, jealousy and the like. They should be instructed that if they find that the prosecution was commenced without probable cause, they are at 128 Wilson v. Bowen, 64 Mich. 133, 31 N. W. 81; Mali v. Lord, 39 N T 381, 100 Am. Dec. 448 (a case of false imprisonment). 129 Reisan v. Mott, 42 Minn. 49, 18 Am. St. Kep. 489, 43 N. W. 691. § 432 MALICIOUS PROSECUTION. 830 liberty to infer malice, so far as proof of malice is required to sustain the action. Actual malice must be proved like any other fact is, by evidence, and en- titles the party to greater damges than where malice is only to be inferred, in which case compensatory damages only are recoverable. 130 § 432. Measure of Damages.— The measure or amount of damages to be awarded for this wrong must largely depend upon the facts and circum- stances in the particular case. Where there has been a malicious prosecution of a criminal charge, and a consequent arrest and imprisonment, is one thing, while the malicious prosecution of a civil suit involv- ing injury to credit and injury and expense in connec- tion with property presents a wholly different situa- tion. The right injured in any case, however, is the right of reputation, and the damages are of the same character, and will embrace much the same elements as in libel and slander. The damages to his person include loss of his liberty, and the danger to which he is subjected of loss of life or liberty through prose- cution. The damages to his property embrace his losses in defending himself against the cause. 131 In case of an arrest recovery may be had for compensa- tory damages for injury to his reputation, and for such actual damages as naturally and proximately follow or result, such as physical suffering and wounded pride. 132 All expenses incurred in defend- 130 Thompson on Trials, sees. 1633-1640, citing Humphries v. Parker, 52 Me. 502; Hill v. Palm, 38 Mo. 15; Vinal v. Core, 18 W. Va. 1, 74; Chapman v. Cawrey, 50 111. 517; Callahan v. Caffarata, 39 Mo. 136, where instructions to this effect were given and ap- proved; Kinkead's Instructions, No. 324. 131 Savile v. Roberts, 1 Dd. Raym. 374. 132 Lunsford v. Dietrich, 86 Ala. 250, 11 Am. St. Rep. 37, 5 South. 461. 837 INJUEY TO EIGHT OF REPUTATION. § 432 ing one's self against a criminal complaint, including counsel fees, 133 and an amount paid sureties to go upon his bond, 134 may be recovered. Mental pain, and the indignity of being charged with a crime and suffering are elements of compen- satory damages in this class of cases, 135 and upon this question, as an element of actual damage, the fact that one who is arrested has a family dependent upon him, one of whom was sick, crippled, and in need of his care and attention, 136 or that his wife is dead and he has children to care for, 137 or that the health of his wife is injured by the arrest may be considered. 138 It is a general rale that exemplary damages may be re- covered in actions of this class, without special allega- tion, whenever malice is charged and proved, the award of such damages being limited to cases where there is actual malice. 139 The right to award exemplary dam- ages in such cases is denied in some states, 140 upon the 133 Kolka v. Jones, 6 N. Dak. 461, 66 Am. St. Eep. 615, 71 N. W. 558; Wheeler v. Hanson, 161 Mass. 370, 42 Am. St. R ep . 408, 37 N. B. 382; Walker v. Pittman, 108 Ind. 341, 9 N. E. 175; Marshall v. Betner, 17 Ala. 832; Gregory v. Chambers, 78 Mo. 294; Krug v. Ward, 77 111. 603. 134 Wheeler v. Hanson, supra. 135 Parkhurst v. Masteller, 57 Iowa, 480, 10 N. W. 864; Ross v. Hixon, 26 Am. St Rep. 163, note. 136 Davis v. Seeley, 91 Iowa, 583, 51 Am. St. Eep. 357, 60 N. W. 183. 137 Eeisan v. Mott, 42 Minn. 49, 18 Am. St. Eep. 489, 43 N. W. 691. 138 Hampton v. Jones, 58 Iowa, 317, 12 N. W. 276. I3t Davis v. Seeley, 91 Iowa, 583, 51 Am. St Eep. 356, 60 N. W. 183; Alabama etc. Co. v. Arnold, 84 Ala. 159, 5 Am. St. Eep. 354, 4 South. 359; Iloss v. Hixon, 26 Am. St Rep. 164, note; Coleman v. Allen, 79 Ga. 637, 11 Am. St. Eep. 449, 5 S. E. 204; Samuels v. Richmond Eailroad Co., 35 S. C. 493, 28 Am. St Eep. 883, 14 S: E. 943; Conners v. Walsh, 131 N. Y. 590, 30 N. E. 59. 140 Spokane Truck etc. Co. v. Hoefer, 2 Wash. 45, 26 Am. St. Eep. 842, 25 Pac. 1072; Wilson v. Bowen, 64 Mich. 133, 31 N. W. 81; Fay v. Parker, 53 N. H. 342, 16 Am. Eep. 270. § 432 MALICIOUS PROSECUTION. 838 theory that the doctrine of punitive damages is un- sound in principle, and unfair and dangerous in prac- tice. But the error of the courts contending for this view lies in the fact that it was sought to apply this doctrine to unintentional wrongs, as negligence, 141 or wrongs which also constitute a crime, as assault and battery, 142 the rules with reference to the latter of which we have nothing to say at this point. 143 The rule has been well-nigh universal from the earliest times that punitive damages have been recoverable in torts involving malice, the object of which, as is well understood, is to teach the defendant a lesson and set an example. 144, 141 Spokane Truck etc. Co. T. Hoefer, supra; see 28 Am. St. Rep. 831, note. 142 Fay v. Parker, supra. 143 See discussion and cases, 28 Am. St. Rep. 882, note. 144 See extended notes and cases, 28 Am. St. Rep. 870-833; 31 Am. St Rep. 587; 30 Am. St. Rep. 22; 39 Am. St. Rep. 521. 839 INJURY TO EIGHT TO HEALTH. § 433 CHAPTEE XXVIII. INJUEY TO COMMON-LAW EIGHT TO HEALTH OE COMFOBT— BY NUISANCE. § 433. Nuisance— Its position in law. § 434. Nuisance— Defined and explained. § 435. Injury to health— Blackstone. § 436. Personal discomfort. § 437. Same continued— Some things held not to be nuisance. § 438. Legislation to prevent. § 439. Other questions. § 433. Nuisance— Its Position in Law.— Nuisance, as a wrong in the general law of torts, occupies an anomalous position. Unlike most other subjects in this branch of the law, it is not possible to classify, arrange or treat nuisance with the same degree of ex- actness as with other subjects. It is committed in a peculiar manner, and injures a variety of interests. It is difficult at times to draw the boundary line be- tween nuisance and negligence. The predominant feature is "duration," or a continuance of acts or con- ditions likely to cause injury. For example, damage done instantaneously, as by explosion, would not be a nuisance, although continual storage of explosives at certain places and under certain conditions, the same exploding after it has so been stored, the wrong is the keeping of the explosives under such circum- stances, and constitutes nuisance. 1 We have treated this feature in a separate chapter as an injury to the person. 2 The subject will be 1 Bigelow on Torts, sec. 615: Kinney v. Koopman, 116 Ala. 310, 67 Am. St. Rep. 119, 22 South. 593. 2 Ante, c. 20. J 434 BY NUISANCE. 640 found discussed throughout this work in its appro- priate place according as it injures the respective rights. § 434. Nuisance— Defined and Explained.— We find much said about definitions of the term "nuisance." The definition usually given is peculiar, and, in our estimation, it is devoid of any expression that de- scribes any violation of a right. It is our purpose to reject all definitions, and introduce a simple one that seems to define. An old one is: "Anything not au- thorized by law which maketh hurt, inconvenience or damage." There are thousands of things not au- thorized by law that damage us; but what is this one thing — nuisance — which worketh hurt? The fault to be found with the above definition, and some others, is, that there is nothing in them indicative of how the the act was committed. Some nuisances arise from a series of acts of neglect or omissions to act, with re- spect to the care and condition of property. A nui- sance may arise, as stated by Mr. Justice Spear, in Village of Cardington, v. Fredericks : 3 "The maintenance of any nuisance implies negligence, or worse." An illustration of the shadowy boundary line be- tween negligence and nuisance is furnished by the case just cited. There it was alleged that, "a certain street .... was so unskillfully and negligently con- structed, and left by the defendant as to be in an unsafe and dangerous condition, which street thus un- skillfully and negligently constructed was .... al- lowed to become out of repair, and obstructed by the rubbish and refuse, .... so that it became and was .... highly dangerous." It was claimed this was a cause for negligence — not nuisance. There was negligence in the construction of the street, but that S 46 Ohio St. 442, 21 N. E. 766. 841 INJUEY TO EIGHT TO HEALTH. § 434 was not the gist of the complaint. The continual series of omissions to keep the street in repair, so that it became in a dangerous condition, was the gist of the complaint, and hence it was nuisance rather than negligence. Another class of nuisances may be committed, with- out negligence or continued neglect, but by disregard of the rights of others, which rights we have as mem- bers of society, and depend upon the conditions or circumstances in which we are placed. One rule would operate in a thickly populated place, and a dif- ferent one in a less thickly settled place. All persons possess the inalienable right to peace, quiet, comfort, light, air and water, whether the water be in wells, cisterns, streams, and, under certain conditions, per- colating waters, and also the enjoyment of property. These rights are embodied in our written constitu- tions. Anything that interferes with these rights, ac- cording to the generally accepted notions, will consti- tute a nuisance, though there may be some interfer- ences with light and air that the law will pass un- noticed. Judge Oooley says that "it is very seldom .... that .... a definition of a nuisance has been attempted, for the reason that to make it so general it is likely to define nothing." It is true that it is difficult to define the wrong, but it is not difficult to classify the rights that may be injured by this wrong, as distinguished from other rights violated by the various other torts, which is a key to a solution of the matter of a definition. Judge Cooley also says that "an attempt to classify nui- sances is ... . almost equivalent to an attempt to classify the infinite variety of ways in which one may be annoyed or impeded in the enjoyment of his rights." § 435 BY NUISANCE. 842 A general classification of rights violated by nui- sance may be: 1. Personal rights; 2. Proprietary rights. This, however, is the general classification of all rights violated by tortious acts. The right of per- sonal security, or freedom from personal injury, may be injured by nuisance, in the storing of explosives, 4 in obstacles or obstructions in the highway, or in mak- ing and leaving excavations, 6 or in interference with peace and comfort, or by injury to health. The right to the enjoyment and use of property may be injured by nuisance. 6 The writer, looking to the violations of these various rights, has always considered it pos- sible to frame a definition more truly expressive of the wrong. Nuisance consists of continuous neglects or omis- sions in the use, care or management of property, streets, or highways, or of acts of commission in the use of property, or in carrying on a trade, or in the exercise of proprietary rights, whereby another is in- jured in his person, health, personal comfort or prop- erty. The term has been defined by statute in some states by providing what acts will constitute a nuisance. § 435. Injury to Health — Blackstone— "Injuries af- fecting a man's health are where, by any unwholesome practices of another, a man sustains any apparent damage in his vigor or constitution. As by selling him bad provisions or wine; by the exercise of a noi- some trade, which infects the air in his neighborhood; or by the neglect or unskillful management of his physician, surgeon, or apothecary These are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action of 4 Ante, c. 20. 6 Ante, c. 22. 6 Post, c. 41. 843 INJURY TO EIGHT TO HEALTH. § 435 trespass upon the case." 7 Thus, the maintenance of a drain by a city in such condition as to cause sick- ness, 8 dumping dead animals into a stream from which one takes water, 9 or the maintenance of a fat rendering factory, from which offensive odors come, causing nauseation and sickness of the stomach; 10 a fertilizer factory, from which noxious gases escape upon the premises of others, causing injury to health, 11 or the maintenance of any business which produces odors of a noxious character causing head- ache, nausea, vomiting, and other pains and aches injurious to health, 12 or a barn and the accumulation of manure so near the dwelling of another, the odor from which affects the appetite and general health of neighbors; 13 the accumulation of stagnant water upon one's own premises in places dug by the owner, as in drains or ditches, or other places, from which noxious and deleterious gases are emitted injurious to health, 14 the sale of adulterated tea, if it endangers life or is detrimental to health 15 — are all instances in which the courts have held such acts to be action- able nuisances as affecting the right of health. We find the doctrine laid down that a city cannot be held liable to an individual for sickness from the collection and deposit of carcasses, garbage, excre- 7 3 Blackstone's Commentaries, 122. 8 Downs v. City of High Point, 115 N. C. 182, 20 S. E. 385; Board etc. v. Maginnis Cotton Mills, 46 La. Ann. 806, 15 South. 164. 9 Gulf etc. Ry. Co. v. Reed (Tex. Civ. App.), 22 S. W. 283. 10 State v. Neidt (N. J.), 19 Atl. 318. n Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 25 Am. St. Rep. 595, 20 Atl. 900. 12 People v. Detroit Lead Works, 82 Mich. 471, 46 N. W. 735. 13 Gifford v. Hulett, 62 Vt. 342, 19 Atl. 230. 14 Rochester v. Simpson, 134 N. Y. 414, 31 N. E. 871; Busch v. New York etc. Ry., 24 N. Y. St. Rep. 7, 12 N. Y. Supp. 85; Roberts y. Harrison, 101 Ga. 773, 65 Am. St. Rep. 342, 28 S. E. 995. 15 Health Department v. Purdon, 99 N. Y. 237, 52 Am. Rep. 22, 1 N. E. 687. § 436 BY NUISANCE. 844 ment, if this is done exclusively in the interest of the public, such as the improvement of the sanitary con- dition. 18 And in Indiana it is held that an action will lie against a county for erecting and maintaining near dwelling-houses a pesthouse, which causes injury to health. 17 § 436. Personal Discomfort.— A person has the right to personal comfort and enjoyment in his home separate and apart from his right to the use of his property, and distinct from the right to the enjoy- ment of health, which right is a branch of the right of personal security. There is a clear distinction be- tween nuisances which affect health or personal dis- comfort and those which affect property, and the prin- ciples which mark this distinction are distinct, and it tends to clearness of thought and an understanding of the law, to consider the three classes of nuisances, viz.: 1. To health; 2. To personal comfort; 3. To property, separately. 18 The general doctrine is "that, in order to constitute a nuisance from the use of one's property, the use must be such as to produce a tangi- ble and appreciable injury to neighboring property, or such as to render its enjoyment specially uncom- fortable and inconvenient." 19 "The personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or nerves, must undoubtedly depend greatly on the circumstances of the place where the thing 16 Fort Worth v. Crawford, 64 Tex. 202, 53 Am. Rep. 753. 17 Haag v. Board etc., 60 Ind. 511, 28 Am. Rep. 654. is See Catlin v. Valentine, 9 Paige, 576, 38 Am. Dec. 567; Coker v. Birge, 9 Ga. 425, 54 Am. Dec. 347. 19 Lane v. Concord, 70 N. H. 485, 85 Am. St. Rep. 643, 49 Atl. 687, citing Campbell v. Seaman, 63 N. Y. 568, 20 Am. Rep. 567; Columbus etc. Coke Co. v. Freeland, 12 Ohio St. 392, and other cases. 845 INJUEY TO EIGHT TO HEALTH. § 436 complained of actually occurs." 20 In towns and cit- ies, on streets and in localities where shops are car- ried on in a fair and reasonable way, one must submit to some annoyance, though there may be material injury to property, giving rise to a right of action, irrespective of the location of the property. 21 Smoke, noise or bad odors, though not injurious to health, may render a dwelling uncomfortable, driving the oc- cupant therefrom, and hence the law does not compel one to live in personal discomfort, although caused by a lawful and useful business. The maxim, "Sic utere tuo ut alienum non laedas," expresses the well-estab- lished doctrine of the law. 22 With respect to complaints made as to injuries from different kinds of business, the law regards the annoyance, inconvenience, or discomfort occasioned therefrom, rather than the particular business, trade, or occupation from which these result. "The law in this respect looks with an impartial eye upon all use- ful trades, vocations, and professions. However an- cient, useful or necessary the business may be, if it is so managed as to occasion serious annoyance, in- jury, or inconvenience, the injured party has a rem- edy." 23 This is the controlling principle, and in its application the courts have held that the business or trade of blacksmithing and boiler-making, when car- ried on in close proximity to dwellings or a hotel, so as to cause annoyance, is a nuisance. 24 So have they held that the jarring and shaking of a building by 20 St. Helen's Smelting Co. v. Tipping, 11 H. D. Cas. 642. 21 Id.; Susquehanna Fertilizer Co. v. Spangler, 86 Md. 562, 63 Am. St. Eep. 533, 39 Atl. 270. 22 Eoss v. Butler, 19 N. J. Eq. 294, 97 Am. Dec. 654. 23 Norcross v. Thorns, 51 Me. 503, 81 Am. Dec. 588. 24 Id.; Fish v. Dodge, 4 Denio, 311, 47 Am. Dec. 254. § 436 BY NUISANCE. 846 machinery in a factory; 25 the operation of lead smelt- ing works, from which are emitted offensive, poison- ous and noxious fumes and vapors; 26 the operation of a tannery in such a manner as to contaminate the at- mosphere; 27 the maintenance of slaughter-houses (be- ing considered prima facie so by some authorities, 28 and others not); 29 or a tin-shop, on account of its noise; 30 or livery-stables when not kept up in a proper manner (but not per se); 31 the manufacture of acid spirit of sulphur, impregnating the air; 32 the keeping of calves in a place at night ready for slaughter, their constant bleating causing great annoyance; 33 the keeping of jacks and stallions, and standing them in plain view of a dwelling; 34 keeping and maintaining a piggery, from which disagreeable odors arise and contaminate the air; 35 keeping a house of ill-fame in close proximity to other residences; 36 or a gas factory from which arise smells and odors which pollute the 25 McKeon v. Lee, 51 N. Y. 300, 10 Am. Rep. 659; Pach v. Geoffroy, 67 Hun, 401, 22 N. Y. Supp. 275. 26 Appeal of Pennsylvania Lead Co., 96 Pa. St. 116, 42 Am. Rep. 534. 27 Pennoyer v. Allen, 56 Wis. 502, 14 N. W. 609, 43 Am. Rep. 728, and 1 note. 28 Commonwealth v. Upton, 6 Gray, 473; Catlin v. Valentine, 9 Paige, 575, 38 Am. Dec. 567. 29 Pruner v. Pendleton, 75 Va. 516, 40 Am. Rep. 738; Minke v. Hofeman, 87 111. 450, 29 Am. Rep. 63. 30 Dennis v. Eckhardt, 3 Grant Cas. 390. 31 Aldrich v. Howard, 8 R. I. 246; Phillips v. Denver, 19 Colo. 179, 41 Am. St. Rep. 230, 34 Pac. 902; Shiras v. dinger, 50 Iowa, 571, 32 Am. Rep. 138; Keiser v. Lovett, 85 Ind. 240, 44 Am. Rep. 10; St. James Church v. Arrington, 36 Ala. 546, 76 Am. Dec. 322. 32 Rex v. White, 1 Burr. 33. 33 Bishop v. Banks, 33 Conn. 118, 87 Am. Dec. 197. 34 Farrell v. Cook, 16 Neb. 483, 49 Am. Rep. 721, 20 N. W. 721; Hayden v. Tucker, 37 Mo. 214. 35 Commonwealth v. Perry, 139 Mass. 198, 29 N. E. 656. so Cranford v. Tyrrell, 128 N. Y. 341, 28 N. E. 514. 847 INJURY TO EIGHT TO HEALTH. § 436 air; 3T or a carpet-cleaning establishment, from which dust, stench and noise permeate neighboring dwell- ings; 38 or a garbage plant which casts upon the prem- ises and into and about the dwelling of another nox- ious odors, vapors and gases, causing material dis- comfort 39 — constitute nuisances. The erection of a shop in a suburban locality occu- pied by costly residences, in which a business is car- ried on which causes smoke laden with cinders, soot, and disagreeable odors to penetrate such houses, so as to render them unclean, uncomfortable, destroy- ing to a material degree the comfortable, peaceable and quiet occupation of the house, also constitutes nuisance. 40 To render offensive odors and smells of a loathsome trade actionable, it is not necessary that they cause injury to health, it being sufficient if they are detrimental to the comfort of those dwelling in the vicinity. 41 The law does not notice sensitive tastes or peculiarities of individuals, and hence the fact that a single person is disturbed by an under- taking establishment, 43 or that a single individual suffers from lead poisoning because of a peculiar and exceptional susceptibility to such influence, when the trace of arsenic or lead is so slight as not to affect other persons in any degree, 43 does not give rise to a right of action. No complaint can be 37 Bohan v. Port Jervis Gas Light Co., 122 N. X. 18, 25 N. B. 246. 38 Craven v. Rodenhausen (Pa.), 21 Atl. 774. 39 Munk v. Columbus Sanitary Works Co., 7 Ohio N. P. 542, 5 Ohio Dec. 548. 40 McMorran v. Fitzgerald, 106 Mich. 619, 58 Am. St. Rep. 511, 64 N. W. 569. 41 Ashbrook v. Commonwealth, 1 Bush, 139, 89 Am. Dec. 616; Waters-Pierce Oil Co. v. Cook, 6 Tex. Civ. App. 573, 26 S. W. 96. 42 Wescott v. Middleton, 43 N. J. Eq. 478, 11 Atl. 490. 43 Price v. Grantz, 118 Pa. St. 402, 4 Am. St. Rep. 601, 11 Atl. 794. § 437 BY NUISANCE. 848 made, 1 for example, on account of lead poisoning, be- cause of some peculiar exceptional susceptibility therefrom, which is so slight as not to affect others. 44 The ringing of church bells, 45 and factory bells, rung habitually at an early hour in the morning, 46 has been held to be a nuisance. § 437. Same Continued— Some Things Held not to be Nuisance. — There are "many cases" (in the language of a recent case) "that may arise where the doctrine of personal liberty and personal dominion of one over his own property enables him to do things to the an- noyance of others, not causing actual, material, phys- ical discomfort to them, for which there is no punish- ment, except loss of that respect which every right- thinking man desires from his neighbors, and the pos- session of which is a source of daily enjoyment. If one is so constituted as not to be susceptible to those feelings which a reasonably well-balanced man is sup- posed to possess, and is so constituted as to obtain more pleasure out of needlessly annoying others than by securing and retaining their respect as a manly member of society, his sovereign right in his own prop- erty to use it as he may, so far as that use does not physically extend outside his boundaries to the detri- ment of others, may be so exercised as to violate the moral obligation which every member of society owes to his neighbors, without any penalty being visited upon him for his misconduct, of which he can be made conscious." 4T This was in a case where one willfully and maliciously erected a high and unsightly fence, 44 Price v. Grantz, 118 Pa. St. 402, 4 Am. St. Kep. 601, 11 Atl. 794. 45 Soultan v. De Held, 2 Sim., N. S., 133, 9 Eng. L. & Eq. 104. 46 Davis v. Sawyer, 133 Mass. 289, 43 Am. Rep. 519. 47 Metzger v. Hochrein, 107 Wis. 267, 81 Am. St. Rep. 841, 83 N. W. 308. 849 INJURY TO EIGHT TO HEALTH. § 437 thus diminishing the beauty of adjoining property, shutting off light and air and the view of the surround- ing country, which is generally held that one may rightly do. 48 It is consoling to note the fact that the supreme court, in one state, declares against the fore- going doctrine, which does so much violence to the ancient maxim, "Sic utere tuo ut alienum non laedas," holding that a high fence erected for spite and with malice, and with no other purpose than to shut out the light and air from a neighbor's window, is a nuisance. 49 And in some states there is legislation against the erection of a fence maliciously and to an- noy others. 50 Loud and disagreeable noises neces- sarily occasioned by a street-car company in switch- ing its cars in and out of its barn situated in a thickly populated part of a city, early in the morning and late at night, disturbing those residing near, is not action- able; 51 nor is a fire-engine house in a city a nui- sance; 52 nor will trifling annoyances and inconvenien- ces from smoke, cinders and noxious vapors, suffered by persons residing in cities be noticed; 53 nor does the unsightly appearance of a vacant lot, caused by 48 Id.; Bordeaux v. Greene, 22 Mont. 254, 74 Am. St. Rep. 600. 56 Pac. 218; Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765.; Medford v. Levy, 31 W. Va. 649, 13 Am. St. Rep. 887, 8 S. E. 302; Rideout v. Knox, 148 Mass. 368, 12 Am. St. Rep. 560, 19 N. E. 390; Kuzniak v. Kozminski, 107 Mich. 444, 61 Am. St. Rep. 344, 65 N. W. 275 (building); Mahon v. Brown, 13 Wend. 261, 28 Am. Dec. 461; Guest v. Reynolds, 68 III. 478, 18 Am. Rep. 570. 49 Flaherty v. Moran, 81 Mich. 52, 21 Am. St. Rep. 510, 45 N. W. 381; Burke v. Smith, 69 Mich. 380, 37 N. W. 838. 50 Smith v. Morse, 148 Mass. 407, 19 N. E. 393. 51 Romer v. St. Paul City Ry. Co., 75 Minn. 211, 74 Am. St. Rep. 455, 77 N. W. 825. 52 Van De Vere v. Kansas City, 107 Mo. 83, 27 Am. St. Rep. 396. 17 S. W. 695. 63 Euler v. Sullivan, 75 Md. 616, 32 Am. St Rep. 420, 23 Atl. 845. Torts, Vol. 1—54 § 438 BY NUISANCE. 850 its being used as a dumping-ground for refuse ma- terial, of itself, constitute a nuisance to an adjoining owner. 54 § 438. Legislation to Prevent.— "The legislature can add to the mala in se of the common law the mala prohibita of its own behest." This power to regulate may extend "to everything expedient for the preserva- tion of health and the prevention of contagious di- sease. There are many things not coming up to the full measure of a common-law or statute nuisance that might, both in the light of scientific tests and of gen- eral experience, pave the way for the introduction of contagion and its uncontrollable spread thereafter. 55 The judgment of the legislature with respect to what things or acts shall be counted as nuisances, its power upon matters of public policy being supreme, within the limits of the constitution, is final. It may en- large the category of public nuisances by declaring places or property used to the detriment of public interests, or to the injury of health or morals to be nuisances. Such laws are not rendered unconstitu- tional merely because they may deprive persons of some rights tp which they may have been ordinarily entitled, and will not be so held "unless carried to such an extent that it can be fairly said to be an un- wholesome and unreasonable law." 50 Municipalities may have similar power conferred upon them, but it is held that this does not give them authority to de- clare something to be a nuisance which is not so in 54 Lane v. Concord, 70 N. H. 485, 85 Am. St. Rep. 643, 49 Atl. 687. 55 Ex parte Shrader, 33 Cal. 284. 56 Murtha v. Lovewell, 166 Mass. 391, 55 Am. St. Rep. 410, 44 N. E. 347; Ex parte Lacey, 108 Cal. 326, 49 Am. St. Rep. 93, 41 Pac. 411; Lawton v. Steele, 119 N. T. 226, 16 Am. St. Rep. 813, 23 N. E. 878; County of Los Angeles v. Spencer, 126 Cal.- 670, 77 Am. St. Rep. 217, 59 Pac. 202. 851 INJURY TO RIGHT TO HEALTH. § 439 fact. ? An ordinance against the maintenance of steam shoddy machines, steam carpet-beating ma- chines, 58 and a statute declaring places where liquor is sold contrary to law to be common nuisances, 59 have been sustained. § 439. Other Questions of a general nature will be found in a later chapter, in connection with this wrong in its relation to real property. 60 57 Village of Des Plaines v. Poyer, 123 111. 348, 5 Am. St. Rep. 524, 14 N. B. 677; Wood on Nuisance, p. 773, sec. 740; Chicago v. Laflin, 49 111. 172; Dillon on Municipal Corporations, sec. 374. bs Ex parte Lacey, 108 Cal. 326, 49 Am. St. Rep. 93, 41 Pac. 411. 59 Ex parte Keeler, supra. co See c. 41, post.