OJnrttfU Ham Bc^aai ICtbrary 
 
Cornell University Library 
 KF 1286.B36 
 
 A treatise on the law of contributory ne 
 
 3 1924 019 315 922 
 
Cornell University 
 Library 
 
 The original of tliis book is in 
 tlie Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019315922 
 
A TREATISE 
 
 ON 
 
 THE LAW 
 
 OF 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 BY 
 
 CHARLES FISK BEACH, Jr., 
 
 COXTNSELLOB AT LAW. 
 
 NEW YOEK: 
 
 BAKEE, YOOEHIS & CO., PTJBLISHEES, 
 
 66 NASSAU STREET. 
 
 1885. 
 
 3081 
 
Copyright, 1886, 
 By Baeek, Toobhis <t Co. 
 
 Willi? McDonald & Co., Peintess, 
 35 Park Row, New York. 
 
TO THE 
 
 Hon. MARCUS BEACH, 
 
 OF NEW JERSEY, 
 A KINSMAN OF MINE, 
 
 TO WHOM 
 I WAS INDEBTED FOR THE 
 
 BEGINNINGS OF MY LEGAL EDUCATION, 
 
 AND 
 
 IN REMEMBRANCE OF MANY KINDNESSES, 
 
 I DEDICATE THIS BOOK. 
 
PREFACE. 
 
 I HAVE made this book upon the Law of Contributory K'egli- 
 gence in the belief that such a work, even if only fairly well 
 done, would be timely, and might possibly be, in some degree, 
 useful to the bench and bar. The libraries have furnished, hith- 
 erto, no separate treatise upon this subject ; the latest editions of 
 the standard works upon the Law of Negligence, which consider 
 Contributory Negligence only incidentally, were published sev- 
 eral years ago, and the subject is one of constant, and constantly 
 increasing interest and importance to the profession. It is by 
 far the most important and material branch of the Law of Negli- 
 gence, and although we already have at hand, aside from the sev- 
 eral English treatises, the three excellent American works of 
 Messrs. Shearman & Eedfield, Dr. "Wharton, and Judge Thomp- 
 son respectively — each in its way the best of the three — 1 have 
 thought, because the subject is an interesting one and impinges 
 80 much upon so many other leading titles in the law, that this 
 work of mine might supplement rather than supplant what has 
 already been better done upon the more general subject of Negli- 
 gence, and that it might, in consequence, turn out not a wholly 
 superfluous undertaking. I have collected and cited more than 
 three thousand cases — not omitting, as I believe, a reference to 
 any valuable adjudication in point, by the State and Federal 
 courts of our own country, and have endeavored to give a due 
 prominence to recent English authorities, and to include, par- 
 ticularly, citations from the latest volumes of the reports and 
 from current periodical legal literature. 
 
 I may frankly acknowledge that in the progress of my work 
 I have drawn without stint from many sources. 1 owe much to 
 the three American treatises on Negligence, to divers other 
 works, and to many essayists, pamphleteers, and reporters, as the 
 notes declare. 
 
 Chablbs Fise Beaoh, Jb. 
 
 The Coorier-Jourkal Building, 
 Louisville, Kv., Oct. lo, i38s. 
 
TABLE OF CONTENTS. 
 
 PREFACE, iv 
 
 TABLE OF CASES, ' . . . xiii 
 
 CHAPTER I. 
 
 INTRODUCTORY.— OF NEGLIGENCE AND OF CONTRIBUTORY 
 NEGLIGENCE GENERALLY. 
 
 PAGES 
 
 § I. Origin of the law of negligence. — §2. Negligence defined. — § 3. 
 Contributory negligence defined. — § 4. Butterfield v. Forrester. — 
 § 5. Davies v. Mann. — § 6. Reasons for the rule of contributory 
 negligence. . . . . . . . .1-13 
 
 CHAPTER H, 
 
 THE GENERAL RULE. 
 
 § 7. General statement of the rule. — § 8. Express or implied waiver of 
 a right of action. — § 9. What is ordinary care. — § 10. What is a 
 proximate cause. — § 11. Distinction between causal connection 
 and a plaintiff's negligence. ..... 14-37 
 
 (A.) Particular considerations affecting the plaint- 
 iff's RIGHT TO recover. 
 
 § 12. Plaintiff's previous knowledge. — § 13. Plaintiff's failure to antici- 
 pate the fault of the defendant. — § 14. Plaintiff acting erroneously 
 under the impulse of fear produced by the defendant. — § 1 5. Plaint- 
 iff acting erroneously in trying to save human life. — §16. Plaintiff 
 doing an illegal act. — § 17. Plaintiff a trespasser. — § 18. Plaintiff's 
 prior negligence in connection with defendant's subsequent negli- 
 gence. — § 19. Plaintiff's negligence after the catastrophe. — 
 § 20. Negligence of the decedent under Lord Campbell's act. . 38-65 
 
Vlll TABLE OF CONTENTS. 
 
 (B.) Particular considerations affecting the defend- 
 ant's LIABILITY. 
 
 PAGES 
 
 § 21. When the defendant's negligence is gross.— § 22. When the de- 
 fendant's negligence is wilful.— § 23. When the defendant by his 
 acts or omissions throws the plaintiff off his guard.— § 24. Mitiga- 
 tion and apportionment of damages. .... 66-75 
 
 CHAPTER III. 
 
 COMPARATIVE NEGLIGENCE.— THE MODIFIED RULE IN ILLI- 
 NOIS, KANSAS, GEORGIA, TENNESSEE, AND KENTUCKY. 
 
 5 25. Comparative negligence. — § 26. This modification generally re- 
 pudiated. — § 27. The rule in Illinois. — § 28. The rule in Kansas. — 
 § 29. The rule in Georgia. — § 30. The rule in Tennessee.—! 31. 
 The rule in Kentucky. ...... 76-102 
 
 CHAPTER IV. 
 
 THE IMPUTED CONTRIBUTORY NEGLIGENCE OF THIRD 
 
 PERSONS. 
 
 I 32. The rule stated. — § 33. The contributory negligence of the plaint- 
 iff's agent must be imputed to the plaintiff. — § 34. The rule in 
 Thorogood v. Bryan. — § 35. Thorogood v. Bryan in the United 
 States. — § 36. The American rule. — § 37. Privity in negligence be- 
 tween a public carrier and a shipper of goods. — § 38. In the case 
 of persons non sui juris. — § 39. Who are to be held non sui juris. 
 — § 40. The New York rule. Hartfield v. Roper.— § 41. The rule 
 modified in various jurisdictions. — § 42. A criticism of Hartfield v. 
 Roper. — §43. The rule in Hartfield v. Roper denied. — § 44. When 
 the action is for the parent's benefit.— § 45. The rule modified by 
 reason of the plaintiff's poverty or destitution. — § 46. Ordinary 
 care in a child.— § 47. Children as trespassers. — § 48. What acts 
 and omissions on the part of parents have been held contributory 
 negligence in these actions. ..... 103-151 
 
TABLE OF CONTENTS. IX 
 
 CHAPTER V. 
 
 THE RULE AS AFFECTING RAILWAY CORPORATIONS. 
 
 PAGES 
 
 §49. Contributory negligence as <a defense to actions brought against 
 
 railway companies. . . . . . . 15a 
 
 (A.) As TO PASSENGERS. 
 
 § 50. Duty of a public carrier to passengers. — § 51. The reciprocal duty 
 of the passenger. — § 52. Boarding moving trains. — § 53. Alighting 
 from movii% trains. — § 54. Standing or riding on platforms. — 
 § 55. Riding in baggage cars, on locomotives or in other unauthor- 
 ized positions or places. — § 56. Injuries at car windows and doors. 
 — § 57. Injuries at and about railway stations. — § 58. Injuries to 
 free passengers. — § 59. Carrier's liability limited by contract. — 
 § 60. Passenger's negligence as to baggage. — § 61. Traveling on 
 Sunday. ........ 153-188 
 
 (B.) As TO STRANGERS. 
 
 § 62. Duty of a public carrier to persons lawfully upon its premises, 
 but who are neither passengers nor employees. — § 63. Duty of the 
 public at railway crossings. — § 64. Duty of the railway company at 
 crossings. — § 65. When the view at the crossing is obstructed. — 
 § 66. Plaintiff deaf or intoxicated. — § 67. Trespassers on a railway 
 track — ^the Pennsylvania rule.— § 68. The modified rule as to tres- 
 passers. — § 69. Children as trespassers on railroad property. — 
 § 70. The turn-table cases. — | 71. Walking upon railway tracks. — 
 § 72. Various other acts of trespass upon railway property. — 
 § 73. Injuries to domestic animals trespassing on railway tracks. 
 — § 74. Duty of a railway company to maintain fences. — § 75. Neg- 
 ligent communication of fire. ..... 189-252 
 
 CHAPTER VI. 
 
 THE RULE AS AFFECTING HIGHWAYS OTHER THAN RAIL- 
 WAYS.— THE LAW OF THE ROAD. 
 
 § 76. Liability of municipal corporations for injuries from defective 
 highways. — § 77. Traveler's own negligence contributing to the 
 injury. — § 78. Right of pedestrian in the roadway.— § 79 Devia- 
 tion from the highway. — § 80. Trespass upon the highway - 
 § 81. Sunday Traveling. — § 82. Pedestrians crossing the highway. 
 
TABLE OF CONTENTS. 
 
 PAGES 
 
 — § 83. Icy sidewalks.—! 84. Injuries to persons in the highway 
 from something falling from the adjoining property.— § 85. Chil- 
 dren injured upon the highway. — § 86. Collisions upon the high- 
 way.— § 87. Injuries upon ferry boats.— § 88. Injuries on and 
 about street cars. — § 89. Walking upon a street railway track. — 
 § 90. Alighting from or boarding moviftg streft cars. — § 91. Rid- 
 ing upon the platforms of street cars. — § 92. Passenger's hand or 
 arm outside of the car window. — § 93. Free passengers and tres- 
 passers upon street cars. ...... 253-309 
 
 CHAPTER VII. 
 
 THE RULE AS IT QUALIFIES THE LAW OF MASTER AND 
 SERVANT— OR EMPLOYER AND EMPLOYED OF EVERY 
 CLASS. 
 
 § 94. Servant's own contributory negligence, a bar. — § 95. Master's 
 individual neglect, a grouiid for an action. — § 96. So, when the 
 master's negligence combines with that of a co-servant in produc- 
 ing the injury. — § 97. Respondeat superior. — § 98. The exception 
 to the rule of respondeat superior: — § 99. Later English cases 
 following Priestley v. Fowler. — § 100. The United States rule — 
 Murray v. South Carolina Railway Co. — § 1 01. Farwell v. Boston 
 & Worcester R. R. Co.^ 102. The rule stated.— § 103. Reason 
 for the rule. — § 104. The modification in Kentucky. — § 105. Lead- 
 ing authority in Kentucky — Louisville, &c., R. R. Co. v. Collins. 
 — § 106. The rule in Illinois. — § 107. The rule in Tennessee.-^ 
 § 108. Who are fellow-servants.- — § 109. The rule stated. — § no. 
 When the servant is deemed the agent of the master, or his vice- 
 principal, the rule of non-liability is qualified. — § iii. Applica- 
 tions of this doctrine. — § 112. Test whether one is a mere servant 
 or the representative of the master. — §113. Should there be one 
 rule in this particular applicable to corporations, and another less 
 stringent one applicable to other hirers of labor ?— § 1 14. Chicago^ 
 Milwaukee & St. Paul Ry. Co. v. Ross.— § 115. What is common 
 employment.— § 116. Illustrations.—! 117. Servants of different 
 masters.— § 118. The rule stated. — § 119. As between different 
 railway corporations having running connections. — § 120. As to 
 volunteers.— § 121. Partnerships and receivers as employers. — 
 § 122. The obligation of the master. — § 123. Defective, dangerous 
 or unfit machinery appliances, tools, or premises. — § 124. The 
 master's duty as to machinery, &c., a continuing duty.— § 125. 
 Master must provide safe and good, but not the safest and best, 
 appliances.—! 126. Master not a guarantor of the safety or suf- 
 ficiency of his appliances.—! '27. Incompetent and unfit employ- 
 
TABLE OF CONTENTS. XI 
 
 PAGES 
 
 ees. — § 128. The duty as to servants also a continuing duty. — 
 § 129. The master not held to warrant the faithfulness or capacity 
 of his servants. — § 130. The master may act through an agent and 
 become responsible for his acts. — § 131. The rule as to minor 
 servants. — § 132. Where the master orders the servant into dan- 
 ger, or into a service which he did not contract to perform. — 
 § 133. The patent and latent dangers of the employment. — 
 § 134. Overhead railway bridges, depot roofs, &c. — § 135. Injur- 
 ies to train-men in coupling cars. — § 136. Knowledge on the part 
 of the employer. — § 137. The obligation of the servant. — ii 138. He 
 must possess a fair measure of skill for the service he undertakes, 
 and must inform himself, at the outset, of the duties and dangers 
 peculiar to his work. — § 139. His knowledge, when a bar.— § 140. 
 When a servant is held to have waived the danger of defect. — 
 § 141. Servant must obey rules established to promote his safety. 
 — § 142. Liability of a servant to a fellow-servant — § 143. Statu- 
 tory modifications of the rule which exempts a master from liabil- 
 ity to one servant for the negligent wrong-doing of a co-servant. — 
 § 144. Should the employee be allowed to make a contract re- 
 leasing his employer from the liability imposed by these statutes .' 
 — § 145.* The laws of other countries as to the liability of an em- 
 ployer for injuries to one employee caused by the carelessness of a 
 fellow-employee. ....... 310-389 
 
 CHAPTER VIII. 
 
 THE RULE IN SPECIAL AND PARTICULAR CASES. 
 
 5 146. Intoxication as a defense in actions of negligence. — § 147. Deaf- 
 ness, blindness or other physical infirmity as a defense. — § 148. 
 Negligence as a defense in actions upon policies of insurance. — 
 § 149. In actions against telegraph companies, for failure in the 
 transmission or delivery of telegraphic dispatches.—! iS°- The 
 rule in the Admiralty.— 4 151. Contributory negligence as a de- 
 fense in actions between attorney and client. — § 152. Between 
 physician and patient.— § 1 53. Between innkeeper and guest. — 
 § 154. Miscellaneous. ...... 390-420 
 
 CHAPTER IX. 
 
 THE BURDEN OF PROOF. 
 
 §155. General statement.— § 1 56. The burden upon the plaintiff.- 
 § 1 57. The burden upon the defendant. — § 1 58. These rules fur- 
 ther considered. — § 159. The rule in New York. — § 160. Con- 
 clusions. ....■••• 421-450 
 
XH TABLE OF CONTENTS. 
 
 CHAPTER X. 
 
 LAW AND FACT. 
 
 PAGES 
 
 § i6i. Contributory neglig-ence a mixed question of law and fact. — 
 § 162. Contributory negligence as matter of law. — § 163. Contribu- 
 utory negligence as a question of fact. . . . .451-462 
 
 INDEX, ..... 465 
 
TABLE OF CASES 
 
 [References are to pages.] 
 
 Abbett V. Chicago, &c. Ry. Co. 203 
 Abbot V. Macfif, 213 
 Abbott V. Johnstown, &c. Ry. Co. 347 
 Abell V. Western, &c. Ry. Co. 309 
 Abend v. Terre Haute, &c. Ry. Co. 15, 
 
 311,341,454 
 Abraham v. Reynolds, 344,345. 
 Absor V. French, 264 
 Achtenhagen v. Watertown, 121, 432 
 Acker v. County of Anderson, 269 
 Ackert v. Lansing, 56 
 Adams v. Carlisle, 257, 426 
 
 V. Lancashire, &c. Ry. Co. 170 
 V. McKinney, 233 
 V. Natick, 262 
 V. Van Alstyne, ^3 
 V. Wicasset Bank, 253 
 Adolph V. Central, &c. Ry. Co. 300 
 Alabama, &c. Ry. Co. v. Hawk, 1 59 
 V. McAlpine, 229 
 V. Thompson, 192 
 V. Waller, 320 
 Albert v. Bleecker St. Ry. Co. 49, 268, 
 
 298, 299 
 Albertson v. Keokuk, &c. Ry. Co. 138 
 Albion V. Hetrick, 39, 40, 106, 115,257, 
 
 • 258 
 Albright v. Penn, 295 
 Albro V. Agawam Canal Co. 328,346, 
 
 375 
 V. Jaquith, 375, 376 
 Aldridge v. Blast Co. 371 
 
 V. Great Western Ry. Co. 243 
 Alger V. Lowell, 27, 269, 390 
 
 V. Mississippi, &c. Ry. Co. 229, 
 231 
 Allen V. Deming, 189 
 V. Duffie, 271 
 V. Hancock, 60, 269 
 V. New Gas Co. 330, 335 
 V. Willard, 431 
 AUerton Packing Co. v. Egan, 372 
 Allison v; Western, &c. Ry. Co. 314 
 AUyn V. Boston, &c. Ry. Co. 192, 194, 
 198, 426 
 
 Alston V. Herring, 26 
 
 American Ins. Co. v. Insley, 400 
 
 Anderson v. Bath, 269 
 V. Hervey, 427 
 V. Morrison, 361 
 V. New Jersey Co. 312 
 V. Wasatch, &c. Ry. Co. 250 
 
 Andrews v. The Capitol, &c. Ry. Co. 
 
 305, 307 
 Annapolis, &c. Ry. Co. v. Baldwin, 
 
 225, 226, 234 
 Arctic Fire Ins. Co. v. Austin, 109, 119, 
 
 1 20, 407 
 Ardesco Oil Co. v. Gilson, 351 
 Arkerson v. Dennison, 351 
 Armistead v. Wilde, 412, 415 
 Armour v. Hahn, 340 
 Armstrong v. Lancashire, &c. Ry. Co. 
 109, no, III 
 V. Southeastern Ry. Co. 65 
 Arnold v. Illinois, &c. Ry. Co. 164 
 Artman v. Kansas, &c. Ry. Co. 200 
 Artz V. Chicago, &c. Ry. Co. 27, 81, 
 
 "3, 195, 197. 200, 203 
 Ashby V. White, no, 117 
 Ashmorev. Penn. Steam, &c. Co. 182 
 Ashworth v. Stanwix, 312, 349 
 Assop V. Yates, 372 
 Aston V. Heaven, 53 
 Atchison, &c. Ry. Co. v. Bales, 250 
 V. Cash, 236 
 V. Flinn, 158, 160 
 V. Hegwir, 226, 228 
 V. Holt, 351, 353 
 V. Moore, 351 
 V. Plunkett, 369 
 V. Smith, 125, 212, 452, 458 
 V. Stanford, 249 
 Atkinson v. Sellers, 275 
 Atlanta v. Wilson, 256 
 Atlanta Cotton Factory v. Speer, 332, 
 
 361 
 Atlanta, &c. Ry, Co. v. Ayers, 65, 75, 
 96 
 V. Wyly, 96, 452 
 
XIV 
 
 TABLE OF CASES. 
 
 Atlantic, &c. Ry. Co. v. Burt, 234 
 Augusta, &c. Ry. Co. v. McElmurry, 
 
 6, 7, 75. 95.96 
 V. Renz, 305 
 Aurora v. Dale, 257, 258, 265 
 
 V. Hillman, 204, 257, z6o, 261, 
 283, 391 
 Aurora, &c. Ry. Co. v. Grimes, 22, 31, 
 
 81, 125, 219, 426 
 Austin V. Chicago, &c. Ry. Co. 209,210 
 V. Great Western, &c. Ry. Co. 
 
 154, 163, 176, 177 
 V. Manchester, &c. Ry. Co. 19, 
 
 66, 1 80 
 V. New Jersey Steamboat, &c. 
 Co. 26, 30, 60 
 Avegno v. Hart, 293 
 Avery v. Maxwell, 224 
 Axford V. Prior, 55, 416 
 Ayer v. City of Norwich, 268 
 Aylesworth v. Chicago, &c. Ry. C0.235 
 
 Babson v. Rockport, 266, 270 
 Bailey v. Mayor of New York, 255 
 
 V. New Haven, &c. Ry. Co. 202 
 Baird v. Addie, 388 
 
 V. Chicago, &c. Ry. Co. 364, 370 
 Baker v. Allegheny Ry. Co. 312, "351, 
 362 
 v. Fehr, 431, 452, 454 
 v. Pendergast, 279 
 V.Portland, 35. 49, 255, 257, 
 
 266, 269, 390, 391 
 V. Robbins, 226 
 Balcom v. Dubuque, &c. Ry. Co. 226, 
 
 228 
 Baldwin v. Barney, 53, 187, 188, 189,276 
 v. Chicago, &c. Ry. Co. 351, 
 
 353 
 v. Ensign, 268 
 
 v. Greenwood's Turnpike Co. 
 256, 262 
 Ball V. Town of Woodbine, 417 
 Ballou V. Chicago, &c. Ry. Co. 342, 
 
 352, 353. 366 
 Baltimore, The, 405 
 Baltimore v. Marriott, 431 
 Baltimore City Passenger Ry. Co. v. 
 Kemp, 296 
 v. Wilkinson, 305. 
 Baltimore, &c. Ry. Co. v. Boteler, 204, 
 
 390 
 V. Brady, 182 
 v. Breinig, 193, 200 
 V. Depew, 39 
 V. Fitzpacrick, 2I, 35 
 V. Johnson, 238 
 V. Lamborn, 225 
 
 Baltimore, &c. Ry. Co. v. McConnell, 
 298 
 V. McDonnell, 60, 125, 126 
 V. Mulligan, 60, 225, 231, 232 
 V. Reaney, 25, 106 
 V. Schwindling, 208, 212, 216 
 V. Shipley, 250 
 v.jState. 22, 54, 194, 209 
 V. Strickler, 364 
 v. Trainor, 60, 197 
 V. Whitacre,40, 192,194,431,432 
 V. Wightman, 154 
 V. Woodruff, 6, 8, 246 
 Bancroft v. Boston, &c. Ry. Co. 6$, 210, 
 
 219, 220 
 Banks v. Highland St. Ry. Co. 50, 69 
 Bannon v. Baltimore, &c. Ry. Co. 128 
 Barbee v. Reese, 25 
 Barber v. Essex, 432, 447 
 
 V. Roxbury, 255 
 Barker v. Savage, 58, 205, 260, 278, 279 
 BarksduU v. New Orleans, &c. Ry. Co. 
 
 126, 151 
 Barley v. Chicago, &c. Ry. Co. 211 
 Barnes v. Chapin, 268 
 
 v. Ward, 263 
 Barrett v. Third Ave. Ry. Co. 106, 115 
 Barry v. New York, &c. Ry. Co. 55, 
 145, 218 
 v. Oyster Bay, &c. Co. 179 
 Bartlett v. Crozier, 253 
 
 V. Hooksett, 268 
 Barton v. St. Louis, &c. Ry. Co. 166, 
 
 167, 452, 458 
 Bartonshill Coal Co. v. McGuire, 317, 
 388 
 V. Reid, 317, 330, 388 
 Bass V. Chicago, &c. Ry. Co. 82, 229, 
 
 246 
 Bassett v. City of St. Joseph, 262 
 
 V. Fish, 40 
 Batchelor v. Fortescue, 65, 361. 
 Batterson v. Chicago, &c. Ry. Co. 355, 
 Baughman v. Shenango, &c. Ry.Co. 193 
 Baulec v. New York, &g. Ry. Co. 330, 
 
 358 
 Baxter v. Boston, &c. Ry. Co. 235 
 v. Roberts, 351, 367 
 v. Troy, &c. Ry. Co. 192, 196, 
 202 
 Bay City, &c. Ry. Co. v. Austin, 235 
 Bayley v. Manchester, &c. Ry. Co. 296 
 Baylor v. Baltimore, &c. Ry. Co. 229, 
 232 
 V. Delaware, &c. Ry. Co. 364 
 Bay Shore Ry. Co. v. Hatris, 121 
 Beach v. Parmenter, 278, 294 
 Beardsley v. Swann, 431 
 
TABLE OF CASES. 
 
 XV 
 
 Beatty v. Gilmore, 20, 60, 431 
 Beauchamp v. Saginaw Mining Co. 34, 
 
 106 
 Beaulieu v. Portland Co. 358, 457 
 Becht V. Corbin, 441, 446 
 Beck V. Carter, 263 
 
 V. East River Ferry Co. 115. 
 Beckham v. Hillier, 374 
 Bedell v. Lull, 108 
 
 Beems v. Chicago, &c. Ry. Co. 364, 370 
 Beers v. Housatonic, &c. Ry. Co. 22, 
 
 447. 459 
 Behler v. German, &c. Ins. Co. 401 
 Behrens v. Kansas, &c. Ry. Co. 452 
 Bdsegel v. New, York, &c. Ry. C0.191, 
 
 441 
 Bell V. New York, &c. Ry. Co. 44 
 
 V. Smith, 447 
 Belief ontaine, &c. Ry. Co. v. Bailey, 231 
 V. Hunter, 193, 194, 195 
 V. Reed, 227, 239 
 V. Snyder, 34, 130, 137, 138, 151 
 Bdton V. Baxter, 192, 261, 278, 279. 
 Bemis v. Connecticut, &c. Ry. Co. 227 
 Benedetti v. Mauchin, 441 
 Bennett v. Brooks, 188 
 
 V. Chicago, &c. Ry. Co. 22 5, 242 
 
 T. Fifield, 255 
 
 V. Louisville, &c. Ry. Co. 55, 
 
 172, 190, 219, 416 
 V. Lovell, 260, 268 
 V. New Jersey, &c. Ry. Co. 
 no, 115, 116, 117, 299 
 Benson v. Titcomb, 426 
 Benton v. Central Ry. Co. 194 
 
 V. Chicago, &c. Ry. Co. 158, 
 296 
 Bequette v. People's Trans. Co. 88 
 Berea Stone Co. v. Kraft, 331, 332, 361 
 Bernhardt v. Rensselaer, &c. Ry. Co. 
 
 43, 191 
 Besel V. New York, &c. Ry. Co. 342 
 Bevier v. Delaware, &c. Canal Co. 245 
 Bigelow V. Reed, 49, 287 
 
 V. Rutland, 270, 426 
 Billings V. Worcester, 282 
 Binney v. Proprietors, 233 
 Birge V. Gardner, 15, 54, 69, 137. 148, 
 
 209, 213 
 Birmingham v. Dorer, 138 
 Bissell v. New York, &c. Ry. Co. 182, 
 
 183 
 Black V. Goodrich Trans. Co. 184 
 Blaine v. Chesapeake, &c. Ry. Co. 229, 
 
 232 
 Blair V. Erie Ry. Co. 154, 176 
 
 V. Milwaukee, &c, Ry. Co. 235 
 Blake v. Ferris, 314 
 
 Blake v. Maine, &c. Ry. Co. 320, 329, 
 
 3S8 
 Blakeley v. Le Due, 295 
 Blessing v. Missouri, &c, Ry. Co. 342 
 Bliss V. London, &c. Ry. Co. 243 
 Blockman v. Toronto St. Ry. Co. 219 
 Blodgett V. Boston, 266, 289, 290 
 Blood V. Tyngsboro, 270 
 Bloomington v. Breen, 257 
 
 V. Perdue, 257, 258, 270 
 
 V. Rogers, 427 
 Blyth V. Birmingham Waterworks Co. 
 
 5- 23. 243 
 V. Topham, 54 
 Board of International Improvements 
 
 V. Scearce, 71, 325 
 Board of Trustees, &c. v. Mayer, 427 
 Boggs V. Parr. 405 
 Bogle V. Winslow, 409 
 Bohan v. Milwaukee, &c. Ry. Co. 193 
 Bohler v. Owens, 412 
 Boland v. Missouri, &c. Ry. Co. 129, 
 
 137. 139. 149. 299 
 Bolch V. Sinith, 54, 56. 287, 4j6, 
 Boldt V. New York, &c. Ry. Co. 340, 
 
 342 
 Bolton V. Col^r, 293 
 Bomar v. Maxwell, 184 
 Bon V. Railway Passenger Assurance 
 
 Co. 402 
 Bonce v. Dubuque, &c. Ry. Co. 426. 
 Bonnell v. Delaware, &c. Ry. Co. 201. 
 Booth V. Boston, &c. Ry. Co. 313,331, 
 
 351. 357 
 V. Mister, 314 
 Bom V. Albany Plank Road, 260, 458 
 Borough of Mauch Chunk v. Kline, 283 
 Boss v. Litton, 260, 278, 279 
 Bosworth V. Inhabitants of Swansey, 
 
 50, 60, 187, 272, 426 
 Botsford V. Michigan, &c. Ry. Co. 352 
 Bovee v. Town of Danville, 259, 447 
 Bowman v. Troy, &c. Ry. Co. 225, 231, 
 
 240 
 Bowser v. Wellington, 279 
 Bowyer v. Burlew, 225 
 Boyle V. Mowry, 367 
 Brabbits v. Chicago, &c. Ry. Co. 321, 
 
 331 
 Brace v. New York, &c. Ry. Co. 236 
 Bradbury v. Furlong, 65 
 Bradley v. Andrews, 15, 417 
 
 v. Boston, &c. Ry. Co. 202 
 V. New York, &c. Ry. Co. 348, 
 
 361 
 V. Rea, 273 
 Brady v. Ball, 225 
 
 V. Rensselaer,&c.Ry.Co.24o, 243 
 
XVI 
 
 TABLE OF CASES. 
 
 Branan v. May, 94, 95, 431 
 
 Brannon v. Adams, 397 
 
 Braun v. Chicago, &c. Ry. Co. 331, 
 
 3SI, 353 
 Breasted v. Farmer's Loan & Trust Co. 
 
 401, 402 
 Brehm v. Great Western Ry. Co. 105 
 Brendell v. Buffalo, &c. Ry. Co. 12, 
 
 19s 
 Brennan v. Fairhaven, &c. Ry. Co. 128, 
 
 154, 178. 309 
 Brentner V. Chicago, &c. Ry. Co. 426 
 Brick V.Rochester, &c. Ry. Co. 343, 353 
 Brickman v. South Carolina, &c. Ry. 
 
 Co. 352 
 Brickner v. New York, &c. Ry. Co. 334, 
 
 359 
 Bridge v. Grand Junction, &c. Ry. Co. 
 
 iS> 2". 35, 109, 197,432 
 Bridges v. North London Ry. Co. 172 
 Briggs V. Guilford, 262 
 
 V. Taylor, 133, 459 
 Britton v. Cummington, 60, 262, 266 
 
 V. Great Western Cotton Co. 
 361, 372 
 Broadwell v. Swigert, 36, 119, 120, 407 
 Brock V. Rochester, &:c. Ry. Co. 320 
 Bronson v. Southbury, 137 
 Brooks V. Boston, 34 
 
 V. Boston, &c. Ry. Co. 156 
 
 V. Buffalo, &c. Ry. Co. 198, 223 
 
 V. Hart, 293, 294 
 
 V. New York, &c. Ry. Co. 233, 
 
 23s 
 V. Petersham, 43 
 V. Schwerin, 261, 278 
 Brooksville, &c. Turnpike Co. v. Pum- 
 
 phrey, 256, 268 
 Brothers v. Cartter, 331 
 Brown v. Byroads, 347 
 
 V. Chicago, &c. Ry. Co. 25, 34, 
 
 43, 174 
 V. Eastern Ry. Co. 185 
 V. European, &c. Ry. Co. 125, 
 
 129 
 V. Hannibal, &c. Ry. Co. 197, 
 
 209, 219, 297 
 V. Hard, 83 
 V. Kings Co., &c. Ins. Co. 400, 
 
 401 
 V. Lynn, 41, 54, 58, 207 
 V. Maxwell, 311, 328, 360, 442 
 V. Milwaukee, &c. Ry. 21, 22, 
 
 193- 235 
 V. Minneapolis, &c. Ry. Co. 
 
 340 
 V. New York, &c. Ry. Co. 1 1 5, 
 
 224 
 
 Brown v. Winona, &c. Ry. Co. 320, 
 
 340, 343 
 Browne v. Providence, &c. Ry. Co. 
 
 236 
 Brownell v. Flagler, 69, 442 
 Browning v. City of Springfield, 255 
 Brownlie v. Tennant, 388 
 Bruker v. Covington, 40, 257, 258, 259, 
 
 265 
 Brusso V. City of Buffalo, 260 
 Bryant v. Biddeford, 188 
 
 V. Burlington, &c. Ry. Co. 370 
 V. Central, &c. Ry. Co. 246, 
 
 248 
 V. Rich, 296, 314 
 Brydenv. Stewart, 317 
 Bucher v. Fitchburg Ry. Co. 188, 273 
 Bucker v. New York, &c. Ry. Co. 452, 
 
 458 
 Buckingham v. Fisher, 267 
 Buddenburgh v. Benner, 413 
 Buel T. New York, &c. Ry. Co. 43, 44, 
 
 158, 159 
 Buesching v. St. Louis Gas Light Co. 
 
 55,431-449 
 Buffington v. Swansey, 276 
 Bulger V. Albany, &c. Ry. Co. 129, 
 
 299 
 Bulkley v. New York, &c. Ry. Co. 225, 
 
 228, 235 
 BuUardv. Harrison, 264 
 Bullock V. Mayor, &c. of New York, 
 
 254, 258 
 Bunting v. Central Pacific Ry. Co. 27, 
 
 69, 197, 203 
 Burdick'v. Worrall, 292 
 Burgess v. Clements, 414 
 
 V. Great Western Ry. Co. 1 54 
 Burke v. Broadway, &c. Ry. Co. 124, 
 138, 441 
 v. Louisville, &c. Ry. Co. 245 
 v. Norwich, &c. Ry. Co. 320, 
 
 344 
 v. Witherbee, 354 
 Burling V. lUinois, &c. Ry. Co. 217 
 Burlington, &c. Ry. Co. v. Franzer, 230 
 
 V. Westover, 245, 248, 250 
 Bumham v. Grand Trunk Ry. Co. 185 
 Bums v. Bellefontaine, &c. Ry. Co. 
 304, 305 
 V. Elba, 390 
 V. Poulson, 314 
 Burroughs v. Housatonic Ry. Co. 245 
 Burrows v. Erie Ry. Co. 157 
 
 v. Marsh Gas;_& Coke Co. 34, 
 61, 105 
 Burton v. North Missouri, &c. Ry. Co. 
 235 
 
TABLE OF CASES. 
 
 XVll 
 
 Bush V. Brainard, 57, 441, 442 
 
 V. Johnson, 431 
 Butler V. Milwaukee, &c. Ry. Co. 197, 
 224 
 V. The Regents, 16 
 Butterfield v. Forrester, 8, 19, 21, 27, 
 93. 94. 256, 422, 442 
 V. Western, &c. Ry. Co. 
 
 194, 19s. 398 
 Button V. Frink, 426, 459 
 
 V. Hudson River Ry. Co. 26, 
 
 30, 37, 60, 68, 139, 441, 443 
 
 Buzzell V. Laconia Manfg. Co. 351, 
 
 37 1, 373. 426 
 Byram v. McGwire, 25, 60 
 Byrne V. Boadle, 286, 287 
 
 V. New York, &c. Ry. Co. 145, 
 
 211 
 V. Wilson, 106 
 
 Cahill V. Layton, 260 
 Cairo, &c. Ry. Co. v. Murray, 227, 230 
 V. Woolsey, 227, 230, 241 
 - Calder v. Smalley, 265 
 Caldwell v. Pittsburgh, &c. Ry. Co. 
 
 309 
 Callahan y. Bean, 121, 125 
 V. Wame, 17, 26 
 Camden, &c. Ry. Co. v. Baldauf, 185 
 
 V. Hoosey, 159, 307 
 Camp V. Church Wardens, 320 
 
 V. Wood, 56, 415 
 Campbell v. Atlanta.&C. Ry.Co. 96,431 
 V. Boyd, 55, 219 
 V. Bridwell, 229, 234 
 V. Portland Sugar Co. 55, 
 
 190 
 V. Race, 264 
 Canfield v. Baltimore, &c. Ry. Co. 183 
 Cannon v. Railway Co. 104, 159 
 
 V. Rowland, 52 
 Card V. Ellsworth, 43 
 Carey v. Berkshire Ry. Co. 65, 100 
 
 V. Rae, 264 
 Carle v. Bangor, &c. Ry. Co. 320 
 Carleton v. Franconia Iron Co. SS 
 Carlin V. Chicago, &c. Ry. Co. 210, 426 
 Carlisle v. Sheldon, 1 14 
 Carpenter v. Boston, &c. Ry. Co. 1 54, 
 
 175 
 Carr v. Lancashire, &c. Ry. Co. 180 
 Carroll v. Minnesota, &c. Ry. Co. 21, 
 69,208,210,347 
 V. New Haven, &c. Ry. Co. 28 
 V. New York, &c. Ry. Co, 160 
 V. Penn. Ry. Co. 197, 20 j, 202 
 V. Staten Island Ry. Co. 53, 
 153, 189, 276 
 B 
 
 Carsley v. White, 257 
 Carter v. Columbia, &c. Ry. Co, 57, 
 217, 432 
 V. Louisville, &c. Ry. Co. 163, 
 
 209, 296 
 V. Towne, 34, 132 
 Cary v. Cleveland, &.c. Ry. Co. 186 
 V. St. Louis, &c. Ry. Co. 235 
 Cashill V. Wright, 412, 415 
 Cassady v. Magher, 397 
 Cassedy v. Stockbridge, 269, 392, 397 
 Cassidy v. Angell, 194, 431, 432 
 
 V. Maine, &c. Ry. Co. 341 
 Caswell V. Boston, &c. Ry. Co. 154,190 
 V. Chicago, &c. Ry. Co. 246 
 V. Worth, 40 
 Catawissa Ry. Co. v. Armstrong, 36 
 Caterham Ry. Co. v. London, &c. Ry. 
 
 Co. 172 
 Catherine, The, 405 
 Catherine of Dover, The, 403 
 Cauley V. Pittsburgh, &c., Ry. Co. 212, 
 
 216, 217 
 Caulkins v. Matthews, 91 
 Cayle's Case, 312, 413 
 Cayzer v. Taylor, 105, 313, 351, 357 
 Central, &c. Ry. Co. v. Davis, 227, 
 232 
 v. Dixon, 222 
 V. Fellar, 204, 398 
 v. Gleason, 77, 96 
 V. Henigh, 91, 212, 216, 222,452 
 V. Lawrence, 227, 229, 232 
 V. Letcher, 15, 157 
 V. Mason, 426 
 V. Moore, 192, 223 
 V. Phillippi, 226, 227 
 V. Sears, 347 
 V. Smith, 158 
 V. Van Horn, 173 
 Centraliav. Krouse, 258, 279, 283,398 
 Chaffee v. Boston, &c. Ry. Co. 199 
 Chamberlain v. Enfield, 268 
 
 v. Milwaukee, &c. Ry. 
 Co. 432 
 Chamberlin v. Morgan, 409, 410, 41 1 
 Chambers v. Matthews, 225 
 Champlin v. Railway Passenger Ins. 
 
 Co. 401 
 Chapin v. Sullivan, &c.Ry. Co. 238,242 
 Chaplin v. Hawes, 293, 294 
 Chapman v. Cook, 263 
 
 V. Erie Ry. Co. 333, 358 
 v. New Haven, &c. Ry. Co. 
 
 68, 115, 120 
 V. Rothwell, 55, 56 
 Chase v. Chase, 229, 234 
 
 V. Maine, &c. Ry. Co. 426 
 
XVIU 
 
 TABLE OF CASES. 
 
 Chase v. New York, &c. Ry. Co. 73 
 Chesterfield v. Janssen, 4 
 Chevallier v. Straham, 295 
 Chicago V. Bixby, 282 
 
 V. Hesing, 83, 125, 262 
 
 V. McGiven, 282 
 
 V. Major, 125, 126, 138, 139, 
 
 426 
 V. Starr's Admr. 121, 125, 139, 
 
 148 
 V. Stearns, 83 
 Chicago, &c. Ry. Co. v. Adler, 197 
 
 V. Asbury, 371 
 
 V. Bayfield, 320, 331, 341, 361 
 
 V. Becker, 21, 43, 125 
 
 V. Bell, 204, 392, 393 
 
 V. Cauffman, 229 
 
 T. Clark, 77, 83, 369, 370 
 
 V. Coss, 83, 222 
 
 V. Damerell, 193 
 
 V. Dewey, 82, 84, 128, 222 
 
 V. Dignan, 223 
 
 V. Dimick, 78, 83, 89, 192 
 
 V. Donahue, 60, 83, 89 
 
 V. Doyle, 16, 368 
 
 V. Dunn, 78, 83, 89 
 
 V. Engle, 230, 231 
 
 V. Fears, 196 
 
 V. Flexman, 296 
 
 V Garvey, 203, 224 
 
 V. George, 16 
 
 V. Gregory, 83, 125, 126, 327, 
 426 
 
 V. Gretzner, 68, 83, 193, 198 
 
 V. Goss, 225 
 
 V. Harney, 138, 361 
 
 V. Hatch, 83, 89, 193 
 
 V. Hazzard, 82, 84, 153, 164, 
 426 
 
 V. Hogarth, 83 
 , V. Jackson, 352, 369, 370, 371 
 
 V. Jacobs, 192, 199 
 
 V. Johnson, 16, 78, 83 
 
 V. Keefe, 341 
 
 V. Kellam, 54, 229, 239 
 
 V. Kusel, 192, 193, 199 
 
 V. Langley, 83 
 
 V. Lee, 83, 89, 203 
 
 V. Lewis, 83 
 
 V. McCrary, 352 
 
 V. McKean, 53, 83, 193 
 
 V. Michie, 51 
 
 V. Mock, 83, 89 
 
 V. Moranda, 342 
 
 V. Moss, 184 
 
 V. Murphy, 340 
 
 V. Murray, 83 
 
 V. Notzki, 195 
 
 Chicago, &c. Ry. Co. v. Payne, 83, 200 
 V. Pennell, 249, 452 
 V. Pondrom, 166, 167 
 V. Randolph, 158 
 V. Rice, 236 
 
 V. Ross, 101, 320, 331, 335, 340 
 V. Rusch, 320 
 V. Russell, 352, 364, 368 
 V. Saunders, 235 
 V. Scales, 156 
 V. Seirer, 237, 238 
 V. Simonson, 83, 244, 246 
 V. Smith, 69, 212 
 V. Still, 193, 194, 398 
 V. Stumps, 129 
 V. Sullivan, 83, 327 
 V. Swanson, 341 
 V. Sweeney, 81, 83, 193 
 V. Swett, 352, 356 
 V. Sykes, 222 
 V. Taylor, 357 
 
 V. Triplett, 65, 72, 83, 84, 204 
 V. Umphenour, 235 
 V. Van Patten, 83, 89 
 V. Ward, 365 
 V. Warner, 369, 370 
 Chidsey v. Canton, 253 
 Child V. Heam, 109 
 Childs V. New Orleans City Ry. C0.299 
 Chiles V. Drake, 70, 325 
 Chippendale v. Lancashire &c. Ry.Co. 
 
 180 
 Churchill v. Holt, 105, 265 
 V. Rosebecit, 53 
 Cincinnati, &c. Ry. Co. v. Eaton, 208 
 V. Hildreth, 235, 238 
 V. Peters, 158, 452 
 V. Smith, 229, 23s 
 V. Street, 226 
 V. Waterson, 69, 229, 238 
 Citizens' St. Ry. Co. v. Carey, 299 
 Citizens, &c. Ins. Co. v. Marsh, 401 
 City V. Neuding, 255 
 City Council v. Benjamin, 270 
 Clapp V. City of Providence, 262 
 Clara, The, 407 
 
 Clardy v. St. Louis, &c. Ry. Co, 229 
 Clark V. Boston, &c. Ry. Co. 199, 218 
 v. Eighth Ave. Ry. Co. 305, 306 
 v. Bums, 185 
 
 v. Chambers, 148, 213, 260 
 V. St. Paul & Sioux Ry. Co. 371, 
 
 372 
 V. Soule, 213 
 
 V. Syracuse, &c. Ry. Co. 231,240 
 V. Union Ferry Co. 294 
 V. Waltham, 280 
 Clarke v. Holmes, 352, 374 
 
TABLE OF CASES. 
 
 XIX 
 
 Clarke y. Syracuse, &c. Ry. Co. 225 
 Clark's Admr. v. Richmond, &c. Ry. 
 
 Co. 364 
 Classen v. Leopold, 412, 413 
 Claxton V. Lexington, &c. Ry. Co. 71, 
 
 32s, 452, 458 
 Clay V. Wood, 293 
 Clayards v. Dethick, 41 
 Claypool V. McAllister, 295 
 Cleghom v. New York, &c. Ry. Co. 392 
 Cleland v. Thornton, 34 
 Clemens v. Hannibal, &c. Ry. Co. 245 
 Cleveland v. Grand Trunk Ry. Co. 250 
 V. Spier, 349 
 T. Steamboat Co. 295 
 Cleveland, &c., Ry. Co. v. Crawford, 
 20, 191, 193, 431 
 V. Crossley, 235 
 V. Curran, 184 
 V. Elliott, 60, 194, 227, 229 
 V. Keary, 331 
 V. Manson, 137 
 V. Terry, 37, 41, 196, 204, 398, 
 
 Cliff V. Midland Ry. Co. 192, 197 
 
 Clifford V. Dam, 260 
 
 Clonghersy v. City of Waterbury, 282 
 
 Clute V. Wiggins, 412 
 
 Cockle V. London, &c. Ry. Co. 173 
 
 Coates V. Missouri, &c. Ry. Co.24S,248 
 
 Cobb v. Standish, 270 
 
 Coggin V. Central, &c. Ry. Co. 345 
 
 Coggs V. Bernard, 2, 18 
 
 Cogswell V. Oregon, &c. Ry. Co. 204, 
 
 211 
 Cohen v. Dry Dock, &c. Ry. Co. 298 
 V. Eureka, &c. Ry. Co. 198 
 V. Hume, 295 
 Cole V. City of Newburyport, 268, 269 
 
 V. Goodwin, 182, 185 
 Colegrove v. New Haven, &c. Ry. Co. 
 
 28 
 Coleman v. Henderson, 270, 271 
 Colgrove v. New York, &c. Ry. Co. 
 
 "5 
 Collier v. Steinhart, 329 
 Collins V. Atlantic, &c. Ry. Co. 235 
 V. City of Council Bluffs, 282 
 V. Middle Levee Comrs. 34 
 V. New York, &c. Ry. Co. 245, 
 248 
 CoUis V. Dorchester, 262 
 Colorado, «S;c. Ry. Co. v. Holmes, 1 5, 
 36, 452,454 
 v. Martin, 331, 341 
 v. Ogden, 320, 367, 373 
 Columbia Ins. Co. v. Lawrence, 400 
 Colton V. Richards, 343 
 
 Columbus, &c. Ry. Co. v. Arnold, 330, 
 342, 351 
 
 V. Farrell, 172 
 
 V. Terry, 197 
 
 V. Troesch, 352, 358, 367 
 
 V. Webb, 342, 351 
 Comerford v. Dupuy, 229 
 Comings v. Hannibal, &c. Ry. Co. 229 
 Commonwealth v. Boston, &c. Ry. Co. 
 
 43, 157, 172, 175, 438 
 V. Louisville, &c. Ry. Co. 189, 
 
 276 
 V. Metropolitan Ry. Co. 299 
 V. Sampson, 188, 274 
 V. Vermont, &c. Ry. Co. 155, 
 178 
 Comyns v. Boyer, 270 
 Con V. Burbridge, 268 
 Cone V. Delaware, &c. Ry. Co. 313, 
 
 351 
 Condon v. Missouri, &c. Ry. Co. 342, 
 
 353 
 Congdon 7. Central, &c. Ry. Co. 224, 
 
 23s, 238, 242 
 Conley V. Pittsburgh, &c. Ry. Co. 151 
 Connolly v. City of Boston, 189, 272 
 
 V. Davidson, 343, 349 
 Connors v. Hennessy, 346 
 Conradt v. Clauve, 420 
 Conroy v. Oregon Construction Co. 
 426, 431 
 v. Vulcan Iron Works Co, 
 352. 373 
 Constitution, The, 405 
 Continental, The, 405 
 Continental Improvement Co. v. Stead, 
 
 192 
 Conway v. Belfast, &c. Ry. Co. 317, 
 
 331, 335 
 Cook V. Central Ry. Co. 43, 44 
 v. City of Milwaukee, 282 
 V. Champlain Trans. Co. 60, 245 
 V. Hannibal, &c. Ry. Co. 331, 332 
 V. Metropolitan Ry. Co. 299 
 V. Parham, 43 
 
 V. Western, &c. Ry. Co. 452, 458 
 Coolbroth v. Maine, &c. Ry. Co. 370 
 Coombs V. New Bedford Cordage Co. 
 40, 360, 362, 370, 372 
 V. Purrington, 36, 260 
 Coon V. Syracuse, &c. Ry. Co. 340 
 Cooper V. E. T. Co. 115 
 
 V. Iowa Central Ry. Co. 331 
 V. Massachusetts, &c. Ins. Co. 
 
 401 
 V. Milwaukee, &c. Ry. Co. 330 
 Copley V. New Haven, &c. Ry. Co. 193, 
 426 
 
XX 
 
 TABLE OF CASES. 
 
 Corbett v. City of Leavenworth, 39, 
 
 257, 258 
 Corby v. Hill, 55, 263 
 Corcoran v. Boston, &c. Ry. Co. 426 
 V. Holbrook, 332, 351, 359 
 Cordell v. New York, &c. Ry. Co. 200, 
 
 201, 441, 446, 448 
 Corey v. Bath, 189 
 Corlies v. Cumming, 442 
 Comman v. Eastern Counties Ry. Co. 
 
 457 
 Corrigan v. Union Sugar Refinery, 314 
 Corson v. Maine, &c. Ry. Co. 358 
 Corwin v. New York, &c. Ry. Co. 227, 
 
 235, 240, 241 
 Cosgrove v. New York, &c. Ry. Co. 
 26, 30, 193 
 V. Ogden, 124, 149, 150, 151, 
 288 
 Cotterill v. Starkey, 260, 269, 278 
 Cotton V. Edwards, 358 
 
 V. Wood, 278, 456 
 Cottrill V. Chicago, «&c. Ry. Co. 43, 45, 
 
 47. 375 
 Couch V. Steel, 317 
 Coulter V. American, &c. Express Co. 
 
 43.44 
 Counter v. Couch, 53 
 County Comrs. v. Burgess, 258, 431, 
 452, 458 
 V. Hamilton, 15 
 Coursen v. Ely, 82 
 Courtney v. Baker, 314 
 Covington v. Bryant, 100 
 Covington Co. v. Kelly, 115 
 Cowles V. Balzer, 225 
 
 V. Richmond, &c. Ry. Co. 311, 
 
 332, 351, 357, 359, 371 
 Cox V. Cook, 274 
 
 V. Westchester Turnpike Co. 400 
 
 V. Railway, 177 
 Coxe V. Robbins, 225 
 Crafton v. Hannibal, &c. Ry. Co. 229 
 Crafts V. Boston, 426 
 Cragin v. New York, &c. Ry. Co. 183 
 Craig V. New York, &c. Ry. Co. 200, 
 
 438 
 Cramer v. Burlington, 390 
 Crandall v. Goodrich Trans. Co. 25, 
 
 36,61 
 Cratty v. Bangor, 188, 275 
 Creed v. Penn. Ry. Co. 164 
 Cremerv. Portland, 20, 21, 35, 36 
 Cressey v. Northern, &c. Ry. Co. 224, 
 
 235, 238, 243 
 Cressy v. Postville, 257 
 Crew v. St. Louis, &c. Ry. Co. 431 
 Crispin v. Babbitt, 332, 333, 359 
 
 Crocheron v. North Shore, &c. Ferry 
 
 Co. 283. 295 
 Crofts V. Waterhouse, 259 
 Cromarty v. City of Boston, 283 
 Crommelin v. Coxe, 20 
 Cronin v. Delavan, 16, 20, 23 
 Grossman v. City of Lynn, 50, 189, 274 
 Crusselle v. Pugh, 320, 344 
 Crutchfield v. Richmond, &c. Ry. Co. 
 
 313, 366, 371, 372 
 Cruty V. Erie Ry. Co. 347 
 Cuddy V. Horn, 106, 115 
 Cumberland Coal Co. v. Scally, 341, 
 
 456 
 Cumberland, &c. Ins. Co. v. Douglas, 
 
 4cx> 
 Cumberland, &c. Ry. Co. v. Fazen- 
 baker, 65 
 V. Hogan, 334, 351 
 V. Mangam, 1 57 
 V. State, 331 
 Cummingsv. Collins, 361 
 
 V. Grand Trunk Ry. Co. 358 
 Cummins v. Presley, 28, 60 
 Cunningham v. Chicago, &c. Ry. Co. 
 
 43, 365, 369 
 V. Lyness, 81, 295 
 Curley v. Harris, 16, 345 
 Curran v. Merchants' Manfg, Co. 358, 
 360 
 v. Warren Chemical Manfg. Co. 
 
 441, 454 
 Curry v. Chicago, &c. Ry. Co. 53, 227, 
 
 235, 236, 242 
 Curtiss V. Rochester, &c. Ry. Co. 175 
 Cuyler v. Decker, 44 
 
 Dale v. St. Louis, &c. Ry. Co. 352, 370, 
 
 371 
 Daley v. Norwich, &c. Ry. Co. 20, 27, 
 
 S3, 54. 137, 138, 197, 218 
 v. Shaaf, 351, 371 
 Dallas, &c. Ry. Co. v. Spicker, 432 
 Dahlberg v. Minnesota St. Ry. Co. 308 
 Damon v. Scituate, 53, 292 
 Damont v. New Orleans, &c. Ry. Co. 
 
 r. '57 
 
 Damour v. Lyons, 41 
 
 Daniel v. Metropolitan Ry. Co. 191, 
 
 194 
 Daniels v. Clegg, 20, 270, 294 
 Danner v. South Carolina Ry.6, 7, 230, 
 
 432 
 Danville &c. Turnpike Co. v. Stewart, 
 
 115, 120 
 Darling v. Boston, &c. Ry. Co. 225 
 Dascomb v. BufTalo.&c. Ry. 12, ig6 
 Davenport v, Ruckinan, 279, 398, 400 
 
TABLE OF CASES. 
 
 XXI 
 
 Davidson v. Portland, 49, 188, 275 
 Davies v. Mann, 10, 16, 28, 29, 30, 31, 
 58, 63, 7S. 79. 93. 94. 99. 126, 132, 
 135. 418, 419 
 Davey v. London, &c. Ry. Co. 203, 
 
 204, 432 
 Davis V. Burlington, &c. Ry. Co. 236 
 V. Central Congregational Soci- 
 ety of Jamaica Plain, 55 
 V. Central Vermont Ry. Co. 
 
 332. 342, 343 
 V. Chicago, &c. Ry. Co. 55, 218, 
 
 23s 
 V. Detroit, &c. Ry. Co. 353, 357, 
 
 370,^71. 372 
 V. Inhabitants of Dudley, 255, 
 
 267, 269 
 V. FcJconbridge, 259 
 V. Garrett, 376 
 V. HiU, 263 
 V. Leominster, 255 
 V. New York, &c. Ry. Co. 193, 
 
 194, 203, 204 
 V. Somerville, 273 
 Day V. Brooklyn City, &c. Ry. Co. 309 
 V. Crossman, 26 
 V. Highland St Ry. Co. 188, 273, 
 
 309 
 V. Milford, 287 
 
 Dayrell V. Tyrer, no 
 
 Dayton, &c. Ry. Co. v. Miami Co. In- 
 firmary, 237 
 
 Dean v. American Mutual Life Ins. Co. 
 401 
 v. Sullivan, &c. Ry. Co. 235 
 
 De Armand v. New Orleans, &c. Ry. 
 Co. 192 
 
 Debevoise v. New York, &c. Ry. Co. 
 441,446 
 
 Decker v. Gammon, 268 
 
 Degg v. Midland Ry. Co. 347, 375 
 
 De Graff v. New York, &c. Ry. Co. 
 
 3S6 
 Delamatyr v. Milwaukee, &c. Ry. Co. 
 
 158 
 Delaney v. Errickson, 230 
 Delaware, &c Ry. Co. v. Salmon, 245, 
 
 248, 250 
 Delgar v. City of St. Paul, 452 
 Denman v. St Paul, &c. Ry. Co. 205, 
 
 394 
 Dennick v. Railroad Co. 65 
 Detroit v. Blakeby, 254 
 Detroit &c. Ry. Co. v. Van Steinburg, 
 
 426, 452, 455, 458 
 Deville v. Southern Pacific Ry. Co. 267 
 Devitt V. Pacific, &c. Ry. Co. 352, 354, 
 
 364. 371 
 
 Devlin v. Smith, 345, 356 
 
 Dewire v. Bailey, 40, 257, 258, 282, 
 
 284 
 Deyo V. Stewart, 234 
 Dibble v. Brown, 185 
 Dice V. Willamette Trans. Co. 172, 175 
 Dickey v. Maine Telegraph Co. 426 
 Dickinson v. London, &c. Ry. Co. 224 
 
 V. Winchester, 412 
 Dickson v. McCoy, 268 
 V. Parker, 230 
 Diethick v. Baltimore, &c. Ry. Co. 
 
 302 
 Digby V. Kenton Iron Works, 81, 100, 
 
 325, 327 
 Dillon V. Union Pacific Ry. Co. 352, 
 
 370, 371, 431 
 Dimes v. Petley, 53 
 Dimick v. Chicago, &c. Ry. Co. 200 
 Dimmock v. North Stafibrdshire Ry. 
 
 Co. 243 
 Ditchett V. Spuyten Duyvil, &c. Ry. 
 
 Co. 204, 390 
 Dixon V. Rankin, 331, 388 
 Dobbin v. Richmond, &c. Ry. Co. 331, 
 
 332 
 Doggett V. Richmond, &c. Ry. Co. 21, 
 
 25, 26, 60, 245, 249, 426 
 Donaldson v. Milwaukee, &c. Ry. Co. 
 
 208, 210, 219 
 Dooley v. Meriden, 257, 282 
 Dorsey v. Phillips, & Co., 352, 370, 
 
 371 
 Doss V. Missouri, &c. Ry. Co. 157, 
 
 190 
 Dougan v. Champlain Trans. Co. 295 
 Dougherty V. Chicago, &c. Ry. Co. 157 
 Dow V. Kansas Pacific Ry. Co. 341 
 Dowd V. Chicopee, 211, 255 
 Dowell V. Steam Navigation Co. 15, 36 
 Dowling V. Allen, 332, 343, 352, 361 
 Downey v. Hendrie, 306, 307 
 Downs V. New York, &c. Ry. Co. ijo 
 Doyle V. Lynn, &c. Ry. Co. 188, 274 
 Drake v. Kiley, 25, 34 
 
 V. Lowell, 287 
 
 V. Mount, 294 
 
 V. Penn. Ry. Co. 233 
 
 V. Phila., &c. Ry. Co. 225 
 Dreher v. Fitchburg, 20, 256 
 Dressier v. Davis, 432 
 Drew V. Sixth Ave. Ry. Co. 1 50 
 
 v. Sutton, 255, 257, 261, 262 
 Dublin, &c. Ry. Co. v. Slattery, 39, 
 
 192, 194, 199, 220, 306, 452 
 Dudley v. Bolles, 294 
 
 V. Camden Ferry Co. 15, 25, 
 27. 295, 452, 458 
 
XXll 
 
 TABLE OF CASES. 
 
 Duff V. Allegheny Ry. Co. 179, 309 
 
 Duffees v. Judd, 234 
 
 Duffy V. Chicago, &c. Ry. Co. 193 
 
 V. New York, &c. Ry. Co. 237, 
 240 
 Duggins V. Watson, 113, 119 
 Dun V. Seaboard, &c. Ry. Co. 164, 169 
 Dunbier v. Day, 412 
 Dunmead v. American, &c. Co. 431 
 Dunn V. Grand Trunk Ry. Co. 160, 
 
 164 
 Dunnigan v. Chicago, &c. Ry. Co. 242 
 Durant v. Palmer, 254, 257, 259, 263, 
 
 431 
 Durgin v. Munson, 313 
 Durham v. Wilmington, &c. Ry. Co. 
 
 231 
 Durkin v. Troy, 258, 282, 283 
 Dush V. Fitzhugh, 21, 38, 75, 97, 98 
 Dutton V. Weare, 189, 254, 255 
 Dyer v. Erie Ry. Co. 44, 113, 115 
 
 V. Talcott, 25,426 
 Dynen v. Leach, 65, 354, 372 
 
 Eames v. Boston, &c. Ry. Co. 235, 
 236, 237, 239 
 V. Salem, &c. Ry. Co. 225, 226, 
 238, 242 
 Earing v. Lansingh, 292 
 Earlville v. Carter, 89, 90 
 East, &c. Ry. Co. v. Hightower, 352, 
 
 356 
 Eastern Ry. Co. v. Relief Fire Ins. Co. 
 
 245 
 Eastman v. Meredith, 253 
 
 V. Sanborn, 43, 158 
 East Saginaw, &c. Ry. Co. v. Baker, 
 
 309 
 V. Bohn, 128, 130, 151 
 East Tenn., &c. Ry. Co. v. Duffield, 
 
 343, 351. 354, 356, 363, 373 
 V. St. John, 211, 221 
 Eaton V. Boston, &c. Ry. Co. 105, 115 
 v. Delaware, &c. Ry. Co. 163, 
 
 177, 240 
 V. Erie Ry. Co. 53, 192, 203 
 Eckert v. Long Island, &c. Ry. Co. 43, 
 
 45. 212 
 Edgerton v. New York, &c. Ry. Co. 
 
 160, 164 
 Edwards v. Hannibal, &c. Ry. Co. 236 
 V. New York, &c. Ry. Co. 
 368 
 Ehrgott V. The Mayor, &c. 34 
 Elkins V. Boston, &c. Ry. Co. 163, 177, 
 
 194. 398 
 Elliott V. Pray, 49 
 
 V. St. Louis, &c. Ry. Co. 65 
 
 Ellis V. London, &c. Ry. Co. 231, 237 
 V. New York, &c. Ry. Co. 351 
 V. Pacific, &c. Ry. Co. 238 
 
 Elwood V. London, &c. Ry. Co. 224 
 V. New York, &c. Ry. Co. 210, 
 218 
 
 Empire Trans. Co. v. Wamsutta Oil 
 Co. 184 * 
 
 Eppendorf v. Brooklyn City, &c. Ry. 
 Co. 302, 303 
 
 Equitable Life Ass. Society v. Pater- 
 son, 401 
 
 Erd V. Chicago, &c. Ry. Co. 246 
 
 Erie V. Magill, 15, 39, 257, 258, 283 
 V. Schwingle, 262, 431 
 
 Erie Ry. Co. v. Wilcox, 184 
 
 Ernst V. Hudson, &c. Ry. Co. 41, 72, 
 193, 196, 197, 220, 441, 445, 447, 
 
 450, 459 
 Estelle V. Lake Crystal, 40, 258 
 Estes V. Atlantic, &c. Ry. Co. 227 
 Evans v. Atlantic, &c. Ry. Co. 340 
 
 V. City of Utica, 40, 257, 258, 
 259, 284 
 
 V. Rudy, 295 
 Evansich v. Gulf, &c. Ry. Co. 148, 211, 
 
 216 • 
 Evansville, &c. Ry. Co. v. Barbee, 239 
 
 V. Baum, 335 
 
 V. Dexter, 427 
 
 V. Duncan, 172, 175 
 
 V. Hiatt, 47, 427 
 
 V. Lowdermilk, 68 
 
 V. Wolf, 121, 125, 208 
 Everhart v. Terre Haute, &c. Ry. Co. 
 
 57, 347 
 Ewen V. Chicago, &c. Ry. Co. 139 
 Ewing V. Chicago, &c. Ry. Co. 227 
 
 Faber v. St. Paul, &c. Ry. Co. 203 
 Fairbank v. Haentzsche, 83, 327, 361, 
 
 370 
 Fairbanks v. Kerr, 33, 288, 417 
 Fales V. Dearborn, 294 
 Fallon V. Central Park, iji 
 
 V. O'Brien, 268 
 Farish V. Reigle, 1 54, 426 
 Farley v. Chicago, &c. Ry. Co. 364, 
 
 370 
 Farlow v. Kelley, 166, 167 
 Farmer v. McCraw, 37, 407 
 Famum v. Concord, 253 
 Farrar v. Green, 269 
 Farwell v. Boston, &c. Ry. Co. 319, 
 
 321, 328, 337, 340, 377 
 Fassett v. Roxbury, 23, 257, 452 
 Faulkner v. Aurora, 280 
 
 V. Erie Ry. Co. 358 
 
TABLE OF CASES. 
 
 XXIU 
 
 Favor v. Boston, &c. Ry. Co. 268 
 Fawcett v. York, &c. Ry. Co. 231, 234 
 Fay V. Minneapolis, &c. Ry. Co. 365, 
 
 374 ' 
 V. Parker, 74 
 Federal St. Ry. Co. v. Gibson, 308, 
 
 431 
 Feital v. Middlesex Ry. Co. 188, 274 
 Felder v. Louisville, &c. Ry. Co. 205, 
 
 394 
 Felthanj v. England, 329 
 Fennenbrack v. South Pac. Ry. Co. 
 
 210 
 Fent V. Toledo, &c. Ry. Co. 25, 34, 
 
 250 • 
 
 Fenton's Case, 419 
 Femandes v. Sacramento, &c. Ry. Ca 
 
 25. 451. 454 
 Femow v. Dubuque, &c. Ry. Co. 233 
 Fero V. Buffalo, &c. Ry. Co. 245, 247 
 Field V. Chicago, &c. Ry. Co. 192, 195 
 Fifield V. Northern, &c. Ry. Co. 351 
 Filer v. New York, &c. Ry. Co. 43, 72, 
 
 158 
 Finlayson v. Chicago, &c. Ry. Co. 209, 
 
 219 
 Finn v. Valley's St. Wharf Co. 431 
 Fisher v. Farmer's, &c. Co. 226, 227 
 Fisk V. Waite, 41 
 Fitch V. Buffalo, &c. Ry. Co. 240 
 V. Missouri. &c. Ry. Co. 248 
 V. Pacific, &c. Ry. Co. 245, 249 
 Fitts V. Cream City, &c. Ry. Co. 452 
 Fitzgerald v. St. Paul, &c. Ry. Co. 125, 
 138, 22s, 23s 
 V. Weston, 392 
 Fitzpatrick v. Fitchburg, &c. Ry. Co. 
 211, 217, 218 
 V. Great Western Ry. Co. 
 
 175 
 Flanders v. Meath, 95 
 Flannagan v. Railroad Co. 352 
 Fleck V. Union Ry. Co. 304, 305 
 Fleming v. Brooklyn City, &c. Ry. Co. 
 308 
 V. City of Lockhaven, 258 
 V. Western, &c. Ry. Co. 36 
 Fletcher v. Atlantic, &c. Ry. Co. 194 
 Fleytas v. Ponchartrain Ry. Co. 15 
 Flike V. Boston, &c. Ry. Co. 312, 332, 
 
 ^,. 351,357.359 ^ „ 
 
 Fhnn v. Philadelphia, &c. Ry. Co. 184 
 Flint V. Norwich, &c. Trans Co. 298 
 Flint, &c. Ry. Co. v. Lull, 227, 241 
 
 V. Wier, 154 
 Flori v. St, Louis, 114, 456 
 Flower v. Adams, 26, 269 
 
 V. Penna., &c. Ry. Co. 177,347 
 
 Flynn v. Kansas, &c. Ry. Co. 352, 
 
 370, 373 
 V. San Francisco, &c. Ry. Co. 
 
 25, 24s, 248 
 Fogg V. Inhabitants of Nahant, 255 
 Foley V. Chicago, &c. Ry. Co. 347, 
 
 352, 353. 371 
 Fones v. Phillips, 360, 363, 371 
 Fopper V. Wheatland, 293 
 Ford V. Fitchburg Ry. Co. 313, 351 
 
 351. 353, 362, 373, 374 
 V. London, &c. Ry. Co. 1 54 
 
 Fordham v. London, &c. Ry. Co. 171 
 
 Forshay v. Glen Haven, 268 
 
 Forsyth v. Boston, &c. Ry. Co. 172 
 
 Fort v. Union Pacific Ry. Co. 361, 
 363 
 
 Fort Wayne, &c. Ry. Co. v. Gilder- 
 sleeve, 352, 354, 366, 371 
 
 Fossett V. Roxbury, 458 
 
 Foster v. Chicago, &c. Ry. Co. 83, 
 
 327 
 V. Dixfield, 426 
 v. Minnesota, &c. Ry. Co. 320, 
 
 329- 343 
 Fox V. Glastenbury, 20, 24, 270, 447 
 
 V. Sackett. 41 
 
 V. Sandford, 321 
 Foy V. Brighton, &c. Ry. Co. 41 
 
 V. London, &c. Ry. Co. 175 
 Fraler v. Sears Water Co. 31 
 Francis v. St. Louis Transfer Co. 175 
 Frazier v. Nortinus, 229 
 
 v. Penn., &c. Ry. Co. 357, 367, 
 
 371 
 Freeh v. Phila., &c. Ry. Co. 210, 431 
 Frederick v. Taylor, 26 
 Freer v. Cameron, 15, 56 
 French v. Brunswick, 255, 257, 426 
 v. Taunton, &c. Ry. Co. 223 
 Frick V. St. Louis, &c. Ry. Co. 121, 
 
 137, 211 
 Frink V. Potter, 43, 158 
 Fritz V. First Div., &c. Ry. Co. 231 
 V. Milwaukee, &c. Ry. Co. 227, 
 230, 241 
 Frost V. Hull, 189 
 
 V. Grand Trunk Ry. Co. 54, 172 
 V. Plumb, 275 
 V. Waltham, 40, 258, 400 
 Fuller V. Jewett, 331, 351, 352 
 Funston v. Chicago, &c. Ry. Co. 192 
 
 Gahagan v. Boston, &c. Ry. Co. 222 
 Gahn v. Ottumwa, 1 14 
 Gale V. Lisbon, 53 
 
 Galena, &c. Ry. Co. v. Crawford, 230, 
 23s 
 
XXIV 
 
 TABLE OF CASES. 
 
 Galena, &c. Ry. Co. v. Dill, 53 
 
 V. Fay, 81, 133-158, 159.426 
 V. Jacobs, 20, 56, 68, "JT, 79, 81, 
 
 82, 84, 85, 205, 219, 426 
 V. Loomis, 197 
 V. Yarwood, 43, 44, 159 
 Gallin v. London, &c. Ry. Co. 155 
 Galloway v. Western, &c. Ry. Co. 16 
 Galpin v. Chicago, &c. Ry. Co. 225 
 Gait V. Adams Express Co, 184 
 Galveston, &c. Ry. Co. v. Bracken, 
 192 
 V. Drew, 311, 372 
 V. Evansich, 128 
 V. Graves, 192 
 V. Moore, 137, 145 
 V. Smith, 156 
 Gannon v. Union Ferry Co. 295 ' 
 
 Gardner v. Grace, 131 
 V. Smith, 235 
 Garland v. Towne, 287 
 Gartland v. Toledo, &c. Ry. Co. 360 
 Gates V. Burlington, &c. Ry. Co. 227, 
 
 374 
 V. Madison, &c. Ins. Co. 400 
 Gautret v. Egerton, 54, 56 
 Gavin v. City of Chicago, 121, 125,151, 
 
 216 
 Gay v. Winter, 65, 431 
 Gaynor v. Old Colony, &c. Ry. Co. 172, 
 
 208, 218, 210, 220, 426 
 Gee V. Metropolitan, &c. Ry. Co. 41, 
 
 165, 170 
 Geiselman v. Scott, 409 
 George v. Gobey, 374 
 
 V. Haverhill, 254 
 V. Smith, 34 
 Georgia, &c. Banking Co. v. Rhodes, 
 
 44,320 
 Georgia, &c. Ry. Co. v. Anderson,329, 
 237, 238 
 V. Kenney, 362, 363, 371 
 V. McCurdy, 158 
 V. Neely, 60, 229, 232 
 Gerald v. Boston, 257, 260, 285, 452 
 Germantown Passenger Ry. Co. v. 
 Brophy, 308 
 V. Walling, 304, 305, 453, 454 
 Gheens v. Golden, 427 
 Gibbons v. Williams, 289 
 Gibson v. Erie Ry. Co. 364, 371 
 
 V. Pacific, &c. Ry. Co. 320, 352, 
 367 
 Gilbert v. Nagle, 56 
 
 V. Roxbury, 282 
 Giles V. Boston, &c. Ry. Co. 224, 238, 
 
 239, 242 
 Gill V. pbby, 413 
 
 Gillam v. Sioux City, &c. Ry, Co. 235 
 Gillenwatcr v. Madison, &c. Ry. Co. 
 
 342, 343. 358 
 Gillespie v. City of Newburgh, 192,441 
 v. McGowen, 121,149,219,263, 
 
 288 
 Gilligan v. New York, &c. Ry. Co. 138 
 Gillis V. Penn Ry. Co. 190, 225 
 Gillshannon v. Stony Brook Ry. Co. 
 
 164, 330. 341, 342 
 Gilman v. Eastern Ry. Co. 313, 353 
 V. European, &c. Ry. Co. 34 
 Ginna v. Second Ave. Ry. Co. 304, 
 
 305 
 Given v. Western Union Telegraph Co. 
 
 402 
 Glassey v. Hestonville, &c., Ry. Co. 
 
 137, 138, 140, 150, 291 
 Gleason v. Bremen, 426 
 Glover v. Gray, 83 
 Goddard v. Grand Trunk Ry. Co. 296, 
 
 297 
 Goddard Petitioner, &c. 285 
 Godefroy v. Jay, 407 
 Goldstein v. Chicago, &c. Ry. Co. 39 
 Gonzales v. New York, &c. Ryi C0.210 
 Goodfellow V. Boston, &c. Ry. Co. 345 
 Goodhue v. Dix, 293 
 Goodman v. Gay, 268 
 Gordon v. Erie Ry. Co. 193 
 Gorham v. Pacific, &c. Ry. Co. 235 
 Gorman v. Lowell, 189, 274 
 
 V. Pacific, &c. Ry. Co. 229, 
 
 231, 232, 234 
 Gormley v. Ohio, &c. Ry. Co. 340, 427 
 Gormly v. Vulcan Iron Works, 320,333 
 Gorton v. Erie Ry. Co. 30, 196 
 Gothard v. Alabama, &c. Ry. Co. 20, 
 
 25. 27, 43. 60, 69, 81, 192, 209,217 
 Gould v. City of Topeka, 254, 255 
 
 V. McKenna, 36, 64, 73. 74. 75 
 Gourdine v. Cook, 295 
 Government St. Ry. Co. v. Hanlon,i37, 
 
 300, 302 
 Graham v. Pacific Ry. Co. 184 
 
 v. Toronto, &c. Ry. Co. 164 
 Gramlich v. Wurst, 47, 54 
 Gramlick v. Railroad Co. 200 
 Grand Rapids, &c. Ry. Co. v. Monroe, 
 
 235 
 Grandtower Manuf. Co. v. Hawkins,83 
 Grant v. Mosly, 25 
 Graves v. Thomas, 55, 219 
 Gray v. Brassey, 387 
 
 V. Gaslight Co. 265 
 V. Scott, 35, 38, 144, 197 
 V. Second Ave. Ry. Co. 267 
 Grayville v. Whitaker, 83 
 
TABLE OF CASES. 
 
 XXV 
 
 Great Northern, &c. Ry. Co. v. Mor- 
 
 vflle, 1 80 
 Great Western Ry. Co. v. Haworth,83, 
 
 246, 247 
 Green v. Danby, 261 
 
 V. Erie Ry. Co. 30, 208, 210 
 Greene v. Minneapolis, &c. Ry.C0.352, 
 
 373 
 Green, &c. R. R. v. Bresmer, 420 
 Greenland v. Chaplin, 34, 64, 73, 1 10 
 Greenleaf v. Dubuque, &c. Ry.Co. 373 
 V. Illinois, &c. Ry. Co. 331, 
 
 551, 354, 355, 366, 367, 426, 456, 
 
 457 
 Gregg V. Gregg,iJ25, 234 
 V. Wyman, 50, 273 
 Gregory v. Adams, 266 
 Gridley v. City of Bloomington, 285 
 GrifiBn v. Auburn, 258, 284 
 Griffen v. New York, &c. Ry. Co. 20, 
 
 35. 194 
 
 V. Willow, 20 
 Griffith V. Cave, 294 
 Griffiths V. Gidlow, 40, 372 
 
 V. London Docks, &c. C0.317, 
 
 352 
 V. The Earl of Dudley, 383, 
 
 384, 385 
 V. Wolfram, 375 
 Griggs V. Fleckinstein, 49, 69, 115, 268 
 Grill V. General Iron Screw Collier Co. 
 
 19, 66, 78, 133 
 Grippen v. New York, &c. Ry. Co. 27, 
 
 31, 198, 200, 202 
 Grizzle v. Frost, 333, 361, 363, 372 
 Grows V. Maine, &c. Ry. Co. 193, 198, 
 
 199, 223 
 Gulf, &c. Ry. Co. V. Evansich, 211 
 
 V. Levy, 67 
 Gumz V. Chicago, &c. Ry. Co. 43 
 Gunner v. Second Ave. R. R. Co., 25 
 Gunter v. Graniteville Manfg. Co. 332, 
 
 333. 359 
 V. Wicker, 25, 27, 60 
 Guthrie V. Louisville, &c. Ry. Co. 343, 
 
 35'. 363. 367 
 Gwynn v. Duffield, 409 
 
 Haas V. Grand Rapids, &c. Ry. Co. 192 
 
 V. Phila. Steamship Co. 345 
 Hackett v. Manfg. Co. 351 
 Hackford v. New York, &c. Ry. Co. 
 
 198, 203, 441, 443 
 Hadencamp v. Second Ave. Ry. Co. 305 
 Hadley v. Baxendale, 34 
 
 V. Taylor, 263 
 
 V. Upshaw, 413 
 Haff V. Minneapolis,&c. Ry. Co. 25, 43 
 
 Haigh V. London, &c. Ry. Co. 226,237 
 Haines v. Illinois, &c. Ry. Co. 194 
 Haire v. Reese, 409 
 Hale V. Lowell, 285 
 
 v. New Jersey Steam Nav. Co. 
 182 
 
 V. Smith, 441,446 
 Haley v. Chicago, &c. Ry. Co. 61 
 
 V. New York, &c. R. R. Co. 223 
 Hall V. Corcoran, 53, 188, 273,274, 275 
 
 V. Johnson, 343 
 
 V. Ripley, 49 
 
 V. Union Pacific Ry. Co. 364, 452 
 Halladay v. Marsh, 233 
 Hallikan v. Hannibal, &c. Ry. Co. 365 
 Hallock v. Hughes, 229 
 Halloran v. New York, &c. Ry. Co. 
 
 225, 231, 236, 240 
 Hallower v. Henley, 351 
 Hamilton v. Boston, 188, 274, 275 
 
 V. Coding, 49 
 Hammersmith, &c. Ry. Co. v. Brand, 
 
 243 
 Hammond v. Chicago, &c. Ry. C0.235, 
 
 237 
 V. Mukwa, 20, 35 
 V. Northeastern Ry.Co. 1 54, 
 177 
 Hance v. Cayuga, &c. Ry. Co. ,60, 236, 
 
 239. 241 
 Hannibal, &c. Ry. Co. v. Kenney, 229 
 Hanover, &c. Ry. Co. v. Coyle, 192, 
 
 194. 398 
 Hanrathy v. Northern, &c. Ry. Co. 
 
 320i 371 
 Hansford's Admx. v. Payne, 67, 325 
 Hard v. Vermont, &c. Ry. Co. 321,356 
 Hardcastle v. The South Yorkshire Ry. 
 
 Co. 54 
 Hardy v. Carolina, &c.Ry. Co. 321,351 
 Hargreaves v. Deacon, 17, 54, 56 
 Haring v. New York, &c. Ry. Co. 193, 
 
 198 
 Harkins v. Standard Sugar Refinery, 
 
 313, 346 
 Harlan v. St. Louis, &c. Ry. Co. 53, 
 
 194, 196, 209 
 Harlow v. Humiston, 263, 441, 442 
 Harney v. Rose, 295 
 Harpell v. Curtis, 41, 294 
 Harper v. Erie Ry. Co. 1 56 
 
 V. Indianapolis, &c. Ry. C0.359 
 V. Milwaukee, 266 
 Harris v. Mobbs, 268 
 
 V. Union Pacific Ry. Co. 8, 25, 
 
 452 
 Harrison v. Berkley, 33, 34 
 v.,Brown, 225 
 
XXVI 
 
 TABLE OF CASES. 
 
 Harrison v. Central, &c. Ry. Co. 351 
 V. Great Northern Ry. Co. 106 
 Hart V. Chicago, &c. Ry. Co. 197 
 
 V. Hudson River Bridge Co. 441, 
 
 446 
 V. Western, &c. Ry. Co. 245, 250 
 Hartfield v. Roper, 68, 69, 122, 124, 
 125, 128, 131, 132, 134, 135, 136, 
 139. 418 
 Hartford v. Brady, 233 
 
 V. Talcott, 285 
 Harty v. Central, &c. Ry. Co. 211, 218, 
 
 219 
 Harvey v. Dunlap, 39 
 
 V. Eastern, &c. Ry. Co. 1 56 
 V. New York, &c. Ry. Co. 26 
 Hassenger v. Michigan Central Ry. 
 
 Co. 23, 24,209, 217, 270 
 Hatfield v. Chicago, &c. Ry. Co. 458 
 Hathaway v. Michigan, &c. Ry. Co., 
 352, 366, 369 
 V. Toledo, &c. Ry. Co. 125, 
 202, 427 
 Haughey v. Hart, 363 
 Havens v. Erie Ry. Co. 196 
 Hawes v. Fox Lake, 269 
 Hawker v. Baltimore, &c. Ry. Co. 231 
 Hawley v. New York, &c. Ry. C0.3SI, 
 
 371. 373 
 Hawkins v. Great Western Ry.C0.182 
 Hawks V. Northampton, 255 
 
 v. Winans, 295 
 Hay V. Le Neve, 403 
 Haycroft V, Lake Shore, &c.Ry.Co.20l 
 Hayden v. Smithville Manfg. Co. 351, 
 
 354, 356, 360, 371 
 Hayes v. Forty-second St. Ry. Co. 35 
 
 v. Michigan, &c. Ry. Co. 204 
 
 v. Millar, 23 
 
 V. Western Ry. Co. 313, 341,342 
 Hays V. Gallagher, 431, 432 
 Hayward v. Miller, 55, 56, 83, 415 
 Headen v. Rust, 229 
 Healy v. Dry Dock, &c. Ry. Co. 26,30, 
 60 
 
 V. New York, 390 
 Heam v. St. Charles St. Ry. Co. 299 
 Heame v. Southern, &c. Ry. Co. 27,36 
 Heckrott v. Buffalo St. Ry. Co. 306 
 Hegeman' v. Western, &c. Ry. Co. 355 
 Heil v. Glanding, i2,_6o, 77, 81 
 Heland v. Lowell, 60', 266, 269 
 Henderson v. Western, &c. Ins.C0.40o 
 Hendricks v. Western, &c. Ry. Co. 7 5, 
 
 96 
 Heney v. Dennis, 34 
 Henn's Case, 264 
 Henry v. St Louis, &c. Ry. Co. 34, 175 
 
 Henry v. Southern, &c., Ry. Co. 250 
 Henry County Turnpike Co. v. Jack- 
 son, 257, 258, 284 
 Henze v. St. Louis, &c. Ry. Co. 192 
 Herbert v. Markwell, 412 
 Herold v. Meyer, 229 
 Herring v. Wilmingfton, &c. Ry. Co. 54, 
 
 204, 205, 208, 210, 393, 452 
 Hewiston v. City of New Haven, 287 
 Hey v. City of Philadelphia, 256, 262 
 Hibbard v. Thompson, 60, 73, 257,409, 
 
 410 
 Hickey v. Boston, &c. Ry. Co. 36, 72, 
 159,426 
 v. Taaife, 351, 360 
 Hicks V. Pacific, &c. Ry. Co. 145, 431 
 Higgins V. Harlem, &c. Ry. Co. 1 59 
 
 v. Watervliet, &c. Ry. Co. 296 
 Higginson v. Nahant, 266 
 Higley v. Gilmer, 158, 160 
 Hill V. Board of Aldermen of Charlotte, 
 268, 269, 417 
 V. Boston, 253 
 Vi Caledonian Ry. Co. 388 
 V. City of Fon du Lac, 458 
 V. Gast, 360, 372 
 V. Louisville, &c. Ry. Co. 65, 221 
 V. Nashville, &c. Ry. Co. 97 
 V. New Haven, 447 
 V. New Orleans, &c. Ry. Co. 20 
 Hiller v. English, 270 
 Hillier v. Allegheny, &c. Ins. Co. 400 
 Hillman v. Newington, 115 
 Hinckley v. Cape Cod Ry. Co. 53, 196, 
 224, 426, 438 
 v. Penobscot, 188, 275 
 Hinds v. Harbou, 375 
 
 V. Overacker, 375 
 Hine v. Munson, 234 
 Hinman v. Chicago, &c. Ry. Co. 235 
 Hinshaw v. Gilpin, 234 
 Hinton v. Dibbin, 66, 78, 180 
 Hixon V. Lowell, 287 
 Hoag V. Lake Shore, &c. Ry. Co. 249, 
 
 251 
 Hoar V. Maine Central Ry. Co. 163 
 Hobbs V. Stauer, 352, 354 
 Hoby V. Built, 407 
 Hocum V. Weitherick, 431 
 Hodge V. Benningfton, 269 
 
 V. New York, &c. Ry. Co. 240 
 Hodgkins v. Eastern Ry. Co. 330 
 Hoehl V. City of Muscatine, 1 5, 27 
 Hoffman v. New York, &c. Ry. Co. 296 
 
 V. Union Ferry Co. 53 
 Hofnagle v. New York.&c.Ry. Co. 330 
 Hogan V. Central Pacific, &c. Ry. Co. 
 3S7 
 
TABLE OF CASES. 
 
 XXVll 
 
 Holbrook v. Utica, &c. Ry.Co. 165,441 
 Holden v. Fitchburg Ry. Co. 313, 330, 
 
 3SI. 353 
 V. Liverpool Gas Co. 432 
 V. Rutland, &c. Ry. Co. 235 
 V. Shattuck, 224, 268 
 Holland v. Chicago, &c. Ry. Co. 199, 
 
 218, 352 
 Holly V. Atlanta St. Railroad, 296 
 
 V. Boston Gas Light Co. 125, 
 131 
 Holmes v. Central, &c. Ry. Co. 210, 
 218 
 V. Clarke, 370, 374 
 V. Nortkeastem Ry. Co. 55, 
 
 219, 348 
 V. Seely, 264 
 V. Worthington, 374 
 Holstine v. Or^on, &c. Ry. Co. 69, 
 
 197 
 Homan v. Stanley, 263 
 Hon^^burger v. Second Avenue Ry. 
 
 Co. 124 
 Honor v. Albrighton, 347, 361 
 Hooksett V. Concord, &c. Ry. Co. 250 
 Hoover v. Texas, &c. Ry, Co. 210 
 Hopkins v. Kansas, &c. Ry. Co. 236 
 Horn V. Atlantic, &c. Ry. Co. 235 
 Horton v. Ipsvtrich, 257, 283 
 Hoth V. Peters, 15, 432 
 Houfe V. Fulton, 113, 256, 262, 269 
 Hough V. Texas & Pacific Ry. Co. 340, 
 
 350.353.355.371, 373,431 
 Houghey v. Hart, 420 
 Hou^ikirk v. President, &c. 197 
 Hounsell v. Smyth, 54, 208, 219, 263 
 Housatonic, &c. Ry. Co. v. Knowles, 
 225 
 V. Waterbury, 230, 239 
 Houser v. Chicago, &c. Ry. Co. 333, 
 
 343, 458 
 
 V. Tully, 412 
 Houston, &c. Ry. Co. v. Clemmons, 
 
 36, 159, 160 
 V. Cowser, 432 
 V. Dunham, 352 
 V. Gorbett, 21, 35, 81, 158 
 V. Leslie, 157 
 V. Moore, 163, 177 
 V. Oram, 352, 357 
 V. Reason, 397 
 V. Richards, 15 
 V. Simpson, 137, 14S 
 V. Smith, 394 
 V. Symkins, 54, 204, 209, 211, 
 
 218, 394 
 V. Wilson. 194 
 Howd V. Mississippi, &c. Ry. Co. 320 
 
 Howells V. Landore Sieman's Steel Co. 
 
 330, 335 
 Howland v. Vincent, 263 
 Hoye v. Chicago, &c. Ry. Co. 454, 458 
 Hoyt V. Hudson, 432 
 Hubbard v. Mason City, 397 
 Hubener v. New Orleans, &c. Ry. Co. 
 
 129 
 Hubgh v. New Orleans, &c. Ry. Co. 
 
 65, 3", 374 
 Huddleston v. Machine Shop, 373 
 Huelsenkamp v. Citizens' Ry. Co. 305, 
 
 458 
 Htiff V. Ames, 137 
 
 Hughes V. Great Western, &c. Ry. Co. 
 180 
 V. Macfie, 131, 146, 147, 148, 
 
 149, 213 
 V. Muscatine, 19 
 Huizeg^ V. Cutler, &c. Lumber Co. 
 
 352 
 Hulett V. St Louis, &c. Ry. Co. 353, 
 
 365 
 Hull V. City of Kansas, 256 
 
 V. Richmond, 431 
 Hundv. Geier, 83, 125, 126 
 Htmt V. Lowdl Gas Co. 73 
 
 V. Penn, &c. Ry. Co. 345 
 V. Salem, 289 
 V. Town of Pownal, 256 
 Huntington v. Breen, 427 
 Huntoon v. Trumbull, 1 14 
 Hurd V. Rutland, &c. Ry. Co. 224, 
 
 233, 238 
 Hutchinson v. Concord, 280 
 
 V. York, &c. Ry. Co. 65, 
 316 
 Hutchison v. Collins, 257, 258, 265 
 Hyde v. Jamaica, 253. 447 
 Hydraulic Works v. Orr, 148, 213 
 
 Ihl v. Forty-second St Ry. Co. 124, 
 
 127, 150, 288 
 Illinois, &c. Ry. Co. v. Able, 43, 156 
 
 v. Adams, 182 
 
 v. Arnold, 237 
 
 V. Baches, 83, 193, 223 
 
 V. Baker, 227, 229 
 
 V. Benton, 83, 89 
 
 V. Buckner, 204 
 
 V. Cox, 341, 342 
 
 V. Cragin, 83, 205, 391, 392, 397 
 
 V. Ebert, 194, 203, 398 
 
 V. Fears, 83 
 
 V. Frazier, 83, 246 
 
 V. Goddard, 83. 89 
 
 V. Godfrey, 54, 83, 190, 208, 219 
 
 V. Goodwin, 226 
 
XXVlll 
 
 TABLE OF CASES. 
 
 Illinois, &c. Ry. Co. v. Green, 157,172, 
 
 175 
 T. Hall, 21, 83, 210 
 y. Hammer, 83, 89, 218, 219, 
 
 220, 223 
 V. Hetherington, 15, i6, 21, 53, 
 
 ^^, 83, 90, 210, 219, 220 
 V. Hoffman, 60 
 V. Houck, 374 
 V. Hutchison, 205, 394, 399 
 V. Jewell, 358, 369 
 V. McClelland, 62, 249 
 V. McKee, 237 
 V. Maffit, 78, 83, 89 
 V. Middlesworth, 78, 83, 89, 226 
 V. Mills, 83, 246 
 V. Modglin, 210 
 V. Nunn, 83, 246J 
 V. Pondrom, 83 
 V. Simmons, 82 
 V. Sweeny, 83 
 V. Welch, 16, 352, 357j 
 V. Williams, 236 
 Imhoffv. Chicago, &c. Ry. Co. 172 
 Indermaur v. Dames, 17, 55, 56, 213, 
 
 263 
 Indiana, &c. Ry. Co. v. Hudelson, 
 
 208, 219 
 Indianapolis v. Love, 351, 356, 358 
 
 V. Stables, 83 
 Indianapolis, &c. Ry. Co. v. Adkins, 
 237, 239 
 V. Bimey, 175 
 V. Brownenburg, 233 
 V. Carr, 44 
 V. Evans, 78, 83, 89 
 V. Flanagan, 352, 366, 368 
 V. Galbraith, 205 
 V. Hall, 235 
 V. Harter, 225 
 V. Hoist, 431 
 V. Horst, 1 54, 164 
 V. Keely, 427 
 V. Kinney, 235 
 V. McClaren, 211, 394 
 V. McClure, 225 
 V. Petty, 237, 238 
 V. Rutherford, 165 
 V. Shimer, 236, 237, 239 
 V. Smith, 200 
 V. Stout. 20, 43, 44, 6s, 192, 199, 
 
 200 
 V. Townsend, 239 
 v.Toy, 352, 355,356 
 V. Wright, 226, 231, 237 
 Ingalls V. Bills, 43, 153, 158 
 IngersoU V. New York, &c. Ry. Co. 
 
 IngersoU v. Stockbridge, &c. Ry. Co. 
 
 245 
 Inman v. Chicago, &c. Ry. Co. 329, 
 
 238 
 Insurance Co. v. Seaver, 250 
 
 V. Trans. Co. 250 
 v. Tweed, 250 
 IntematioQal Ry. Co. v. Doyle, 352, 
 
 362 
 Ireland v. Oswego, &c. Ry. Co. 459 
 Iron Ry. Co. v. Mowery, 43,44, 158 
 Irvine v. Wood, 260 
 Irwin V. Sprigg, 25, 26, 431 
 Isaacs V. Beth Hamedash Society, 270 
 
 V. Third Ave. Ry. Co. 297 
 Isaacson v. New York, &c. Ry. Co. 
 
 185 
 Isabel V. Hannibal, &c. Ry. Co. 54, 
 
 128, 138, 139, 209, 211 
 Isbell V. New York, &c. Ry. Co. 25, 
 
 26, 54, 60, 225, 227, 228, 459 
 
 Jackson v. County Com'rs, 21 
 
 V. Indianapolis,&c.Ry.Co.427 
 V. Kansas, &c. Ry. Co. 365, 
 
 370 
 V. Nashville, &c Ry. Co. 97 
 V. Rutland, &c. Ry. Co. 224, 
 233 
 Jacobs V. Bangor. 255, 259 
 
 V. Louisville, &c. Ry. Co. 100, 
 
 325 
 Jacobus v. St. Paul, &c. Ry. Co. 154, 
 
 i6o, 176, 184 
 Jager v. Adams, 287 
 Jafle V. Cardinal, 20, 415 
 James v. Great Western Ry. Co. 200 
 Jamison v. San Jose Ry. 15, 156 
 JefFeris v. Phila., &c. Ry. Co. 245, 247 
 Jeffersonville, &c. Ry. Co. v. Adams, 
 225 
 V. Bowen, 121, 125 
 v. Goldsmith, 208, 219 
 V. Hendricks, 155, 157, 427 
 V. Lyon, 427 
 V. Ross, 23s, 237, 239 
 V. Underbill, 226 
 Jeffords v. Crump, 416 
 Jeffrey v. Keokuk, &c. Ry. Co. 16, 20, 
 
 Jenks V. Wilbraham, 269 
 Jennings v. Wayne, 53 
 Jetter v. New York, &c. Ry. Co. 150 
 Jewell V. Chicago. &c. Ry. Co. 157 
 
 V. Parr, 457 
 Johnson v. Berkshire Ins. Co. 400 
 V. Boston, &c. Ry. Co. 69 
 
TABLE OF CASES. 
 
 XXIZ 
 
 Johnson v. Boston Tow Boat Co. 320, 
 
 331. 343. 367, 452, 458 
 V. Bruner, 351, 458 
 V. Canal, &c. Ry. Co. 36, 60, 
 
 299 
 V. Chicago, &c. Ry. Co. 192, 
 194, 203, 209, 211, 217, 296 
 V. Hudson River Ry. Co. 26, 
 
 29, 37, 60, 439, 441, 445 
 V. Irasburgh, i88, 275 
 V. Lowell, 282 
 V. Small, 293 
 V. Westchester, &c. Ry. Co. 
 
 22, 43, 44, 155, 156 
 V. Whitpfield, 20, 254, 257 
 V. Wing, 225 
 Joliet V. Seward, 78, 83, 89 
 Joliet, &c. Ry. Co. v. Jones, 233, 242 
 Jones V, Boston, 287, 346 
 
 V. Boyce, 43, 158, 294 
 
 Y. Columbia, &c. Ry. Co. 230 
 
 V. Granite Mills, 354 
 
 V. Inhabitants of Andover, 187, 
 
 273, 292 
 V. Inhabitants of Waltham, 254, 
 
 2S5 
 V. Louisville, &c. Ry. Co. 71, 
 
 100, 325 
 V. New York, &c. Ry. Co. 441, 
 
 446 
 V. North CaroUna, &c. Ry. Co. 
 
 198, 204 
 V. Sheboygan, &c. Ry. Co. 237, 
 
 242 
 V. Voorhees, 184 
 V. Witherspoon, 234 
 V. Yeager. 352, 371 
 Joslin V. Grand Rapids Ice Co. 314, 
 
 320 
 Joyner v. Great Barrington, 261 
 
 Kahn v. Love, 426 
 
 Kain v. Smith, 353 
 
 Kansas, &c. Ry. Co. v. Allen, 216 
 
 v. Cramer, 60 
 
 V. Fitzimmons, 91, 148, 211, 216 
 
 V. Landis, 226, 236 
 
 V. Little, 331, 333 
 
 V. McHenry, 226, 235, 236 
 
 V. Mower, 226, 235 
 
 V. Owen, 245 
 
 V. Peavey, 89, 91, 92, 384 
 
 V. Phillibert,43i 
 
 V. Pointer, 20, 68, 91, 218,431, 
 
 4-35 ^ 
 V. Salmon, 65, 330, 380 
 
 V. Simpson, 184 
 
 V. Ward, 452, 458 
 
 Kansas, &c., Ry. Co. v. Wiggins, 239 
 Karle v. Kansas, &c. Ry. Co. 157, 191 
 Karr v. Parks, 43, 44, 125, 1 50 
 Kay V. Pennsylvania Ry. Co. 137, 138, 
 141, 143, 145, 2". 218, 219,223, 
 288 
 Kean v. Baltimore, &c. Ry. Co. 204, 
 
 396 
 Keane v. Boycott, 360 
 Kearney v. London, &c. Ry. Co. 287 
 Keams v. Snowden, 53 
 Keegan v. Kavanagh,3i2, 373 
 Keenan v. Cavanaugh, 224 
 Keffe V. Milwaukee, &c. Ry. Co. 148, 
 
 214,21s 
 Keilley v. Belcher, 320, 37 1 
 Keith V. Easton, 268 
 
 V. Granite Mills, 354 
 V. Pinkham, 160 
 Kellar v. New York, &c. Ry. Co. 452, 
 
 458 
 Kelley v. Fon du Lac, 261 
 
 V. Hannibal, &c, Ry. Co. 157, 
 
 192, 198 
 V. Howell, 343 
 V. Norcross, 343 
 Kelly V. Hendrie, 193, 301 
 T. Johnson, 347 
 
 V. Minneapohs, &c. Ry. Co. 203 
 V. Newman, 282, 284 
 V. Railroad Co. 258,284 
 Kellogg V. Chicago, &c. Ry. Co. 41,246 
 
 248,249 
 Kelly V. Silver Spring Co. 354, 371 
 
 V. Southern, &c. Ry. Co. 199 
 Kemp V. Phillips, 452, 458 
 Kennard v. Burton, 15, 20, 25, 28, 138, 
 
 293, 294, 426 
 Kennayde v. Pacific, &c. Ry. Co. 203 
 Kennedy v. North Missouri Ry. Co. 
 
 191, 202 
 Kenney v. City of Cohoes, 282, 284 
 Kent V. Elstrob, 36 
 
 Kentucky, &c. Ry. Co. v. Gastineau's 
 Admr. 71 
 V. Lebus, 15, 225, 227, 232 
 V. Thomas' Admr. 15, 36, 99,154, 
 159, 160,431 
 Kenyon v. New York, &c. Ry. Co. 30, 
 
 128, 208, 210 
 Keokuk v. Independent District of 
 
 Keokuk, 284 
 Keokuk Packet Co. v. True, 1 54, 296 
 Kepperly v. Ramsden, 53, 426 
 Kerr v. Forgue, 83, 126, 128, 148, 211 
 Kerwhacker v. Cleveland, &c. Ry. Co. 
 21, 2S, 26, 35, S3, 54, 60, 67, 68, 69, 
 197, 227, 228, 232, 234 
 
XXX 
 
 TABLE OF CASES. 
 
 Kesee v. Chicago, &c. Ry. Co. 246 
 
 Kewanee v/Depew, 83 
 
 Keystone Bridge Co. v. Newberry, 321, 
 
 343 
 Keys V. Village of Marcellus, 263 
 Keyser v. Chicago, &c. Ry.Co. 211,216 
 Kibele v. City of Philadelphia, 368 
 Kidder v. Dunstable, 53 
 Killea v. Faxon, 343 
 Kimball v. Rutland, &c. Ry. Co. 182 
 King V. American Trans. Co. 419 
 V. Boston, &d. Ry. Co. 342, 360 
 V. Ohio, &c. Ry. Co. 365 
 V.Thompson, 257, 258, 259, 264 
 Kingsbury v. Dedham, 268 
 Kinney v. Central, &c. Ry. Co. 154,182 
 Kirby v. Boylston Market, 257, 285 
 Kline v. Central, &c. Ry. Co. 15, 25 
 Klipper v. Coffey, 49 
 Knapp V. Dagg, 1 1 3, 1 1 5 
 
 V. Salsbury, 294 
 Knickerbocker Life Ins.Co.v. Peters,4oi 
 Knight V. Abert, 225 
 
 V. Goodyear Rubber Co. 2'68 
 New Orleans, &c. Ry.Co. 233 
 V. Ponchartrain Ry. Co. 36, 65, 
 
 156,452 
 V. Toledo, &c. Ry. Co. 226,228, 
 
 239 
 Knowlton v. Erie Ry. Co. 184 
 Knox V.Tucker, 224, 233 
 Kohn V. Lovett, 17, 54 
 Koons v. St. Louis, &c. Ry. Co. 138,148, 
 216 
 V. Western Union Tel, Co. 402 
 Koutz V. Toledo, &c. Ry. Co. 237 
 Kreig v. Wells, 121, 124 
 Kresanowski v. Northern Pac. Ry. Co. 
 
 365 
 Kroy V. Chicago, &c. Ry. Co. 373 
 Kuhn V. Chicago, &c. Ry. Co. 227 
 V. Jewett, Receiver, 250 
 
 Labussiere v. New York, &c. Ry. Co. 
 
 240 
 Lack V. Seward, 36 
 Lackawanna, &c. Ry . Co. v. Chend- 
 
 worth, 197 
 Ladd V. New Bedford Ry. Co.354,355, 
 
 362,369,371 
 Lade v. Shepherd, 224 
 Lafayette, &c. Ry. Co. v. Adams, 68 
 V. Huffman, 121, 125, 196, 208 
 V. Shriner, 225 
 Laicher v. New Orleans, &c. Ry.C0.36, 
 
 204, 210 
 Laing v. Colder, 154, 165, 169, 184 
 
 Lake Shore, &c. Ry. Co. v. Bangs, 157 
 
 V. Berlink, 53 
 
 v. Clemens, 39 
 
 V. Hart, 205,210 
 
 V. Lavalley, 357 
 
 V. McCormick, 365, 369 
 
 v. Miller, 54, 114, i93, I94, 204, 
 211,306,394,396,426,452 
 
 v. Roy, 39 
 
 V. Sunderland, 194 
 Lake Superior Iron Co. v. Erickson, 
 
 345 
 Lalor v. Chicago, &c. Ry. Co. 331, 341, 
 
 361 
 Lambeth v. North, &c.Ry.Co., 157,158 
 Lancaster v. Kissinger, 22, 39, 43 
 Lande v. Chicago, &c. Ry. Co. 227 
 Lane v. Atlantic Works, 60, 149, 213, 
 426,452 
 v. Bryant, 294 
 V. Crombie, 256, 294, 426 
 Langan v. St. Louis,&c. Ry.Co. 38, 46 
 Langdon v. Godfrey, 407 
 Lanier v. Youngblood, 412, 413, 414, 
 
 452 
 Laning v. New York, &c. Ry. Co. 320, 
 
 333.351-352,357,358,371,372 
 Lannen v. Albany Gaslight Co. 26, 58, 
 
 124, 128, 132,314 
 Larkin v. Taylor, 61, 226 
 Larrabee v. Peabody, 261 
 
 V. Sewall, 294 
 Larry v. Cleveland, &c. Ry. Co. 54 
 Lame v. Farren Hotel Co. 416 
 Laverenz v. Chicago, &c. Ry. Co. 192, 
 
 203, 211 
 Lawler v. Androscoggin, &c. Ry. Co. 
 
 329, 343, 358 
 Lawless v. Connecticut River Ry. Co. 
 
 370 
 Lawrence v. Chicago, &c. Ry. Co. 227 
 v. Coombs, 233 
 V. Jenkins, 34 
 T. Milwaukee, &c. Ry. Co. 
 
 242 
 T. New York, &c. Ry. Co. 
 182 
 Lawrenceburg, &c. Ry. Co. v. Mont- 
 gomery, 164 
 Laws V. North Carolina, &c. Ry. Co. 
 
 230 
 Lawton v. Fitchburg Ry. Co. 233 
 Leasan v. Maine, &c. Ry. Co. 426 
 Leauenworth, &c. Ry. Co. v. Rice, 193, 
 
 202 
 Le Baron v. Joslin, 267, 294, 426 
 Le Claire v. First Div. &c. Ry, Co. 352, 
 371 
 
TABLE OF CASES. 
 
 XXXI 
 
 Leduke v. St. Louis, &c. Ry. Co. S3 
 Lee V. Riley, 268 
 
 V. Troy Citizens' Gaslight Co. 441, 
 446 
 
 V. Woolsey, 432 
 Lehey v. Hudson River Ry. Co. 203 
 Lehman v. Brooklyn, i2i, 124, 139,457 
 Lehigh Valley Coal Co. v. Jones, 39, 
 
 321. 329 
 Lehigh Valley Ry. Co. v. Hall, 193, 194 
 
 V. McKeen, 244, 250 
 Lemon v. Chanslor, 1 54 
 
 V. Washington, &c. Ry. Co. 298 
 Lenix v. Mo. Pac. Ry. Co. 210 
 Leonard v. CoUips, 312, 354, 335 
 
 V. New York, &c. Ry. C0.203, 
 204 
 Leslie v. City of Lewiston, 125, 130, 
 
 261 
 Lester v. Pittsford, 447 
 Levering v. Union, &c. Ry. Co. 182 
 Levy V. Carondelet Canal Co. 16 
 Lewis T. Baltimore, &c. Ry. Co. 222, 
 223 
 V. London, &c. Ry. Co. 173 
 V. St. Louis, &c. Ry. Co.3S2,367 
 Lexington v. Lewis' Admr. 71, 325 
 
 V. McQuillan, 254 
 Liddy v. St. Louis, &c. Ry. Co. 298 
 Limpus V. London Genl. Omnibus 
 
 Co. 296, 314 
 Lincoln v. Walker, 260, 431 
 Linfield v. Old Colony Ry. Co. 193, 
 
 202, 458 
 Linnehan v. Sampson, 43, 44, 45, 48, 
 
 212 
 Litchfield Coal Co. v. Taylor, 83 
 Little V. City of Madison, 268, 269 
 v. Lathrope, 224 
 V. McGuire, 229 
 Littlejohn v. Jones, 295 
 Little Miami, &c. Ry. Co. v. Stevens, 
 
 331, 431 
 V. Wetmore, 297 
 Little Rock, &c. Ry. Co. v. Finley, 230, 
 
 232 
 V. Hecht, 249 
 V. Miles, 155, 164, 176, 223 
 V. Pankhurst, 15, 54, 204, 211, 
 
 394 
 Locke V. First Div. &c. Ry. Co. 58, 232 
 V. St. Paul,&c.Ry. Co. 225 
 V. Sioux City, &c. Ry. Co. 374 
 Lockhart v. Lichten thaler, 11 1, 112 
 J.ockwood V. Chicago, &c. Ry. Co. 365, 
 
 374 
 V. New York, &c. Ry. Co. 
 
 154 
 
 Loeb V. City of Attica, 276 
 
 Loeser v. Humphrey, 267 
 
 Loewer v. City of Sedalia, 257,258,390, 
 
 452,458 
 Lofton V. Vogles, 139 
 Loftus V. Union Ferry Co. 295 
 Logan V. Gedney, 229 
 
 V. Matthews, 276 
 V. Ponchartrain Co. 185 
 Longenecker v. Pennsylvania Ry. Co. 
 
 197,433.453,458 
 Longmore v. Great West. Ry. Co. 1 54 
 Lord V. Wormwood, 224 
 Lords Bailiff-Jurats, &c. v. Trinity 
 
 House, 34 
 Lome V. Hotel Co. 56 
 Louisville, &c. Canal Co. v. Murphy's 
 Admr. 102, 138, 325, 431 
 Louisville, &c. Ry. Co. v. Ballard, 225, 
 231, 233 
 V. Boland,427 
 V. Bowles, 331,333 
 V. Brooks' Admr. 71 
 ■ V. Burke, 197, 221 
 V. Cahill, 235, 237, 241 
 V. Case's Admr, 115, 325 
 V. Caven's Admr. 320 
 V. Collins, 1 5, 65, 68, 71, 101,197, 
 
 325, 327, 337 
 V. Commonwealth, 100, 197 
 V. Conner, 221 
 V. Filbem's Admx. 100, 324 
 V. Francis, 236 
 V. Goetz's Admr. 15, 100, 191, 
 
 192,194,431,432,452,458 
 V. Goodell, 324 
 V. Hagan, 246, 427 
 V. Head, 200; 427 
 V.Kelly, 72, 159 
 V. Krinning, 246, 427 
 V. Lockridge, 427 
 V. McVay, 348 
 V. Mahony, loo, 324 
 V. Milton, 225, 231, 233 
 V. Orr, 427 
 V. Richardson, 247 
 V. Robinson,is,68, loi, 102,325, 
 
 327. 340 
 V. Schmidt, 199 
 V. Shanks, 1 5 
 V. Sicking's Admr. 100, I02,i(55, 
 
 324 
 V. Spain, 242 
 V. Wainscott, 225, 233 
 V. Whitesell, 235, 237 
 V. Wolfe, 25, 190 
 Lovejoy v. Boston, &c.Ry. Co. 340,553, 
 364 
 
XXXll 
 
 TABLE OF CASES. 
 
 Lovenguth v. City of Bloomington,283 
 Lovett V. Salem, &c. Ry. Co. 125, 151 
 Low V. Grand Trunk Ry. Co. 48, 49 
 Loyd V. Hannibal, &c. Ry. Co. 156 
 Lucas V. Milwaukee, &c. Ry. Co. 164 
 
 V. New Bedford Ry. Co. 157, 
 426 
 
 V. Taunton, &c. Ry. Co. 128 
 Luddington v. Miller, 56 
 Luebke v. Chicago, &c. Ry. Co. 321, 
 
 343. 357, 361 
 Lumley v. Caswell, 371, 372 
 Lund V. Tyngsboro, 43 
 Lunt V. London, &c. Ry. Co. 199 
 Luther v. Worcester, 282 
 Luxford V. Large, 36 
 Lygo V. Newbold, 57, 129, 163, 177 
 Lyman v. Gipson, 233 
 Lynam v. Union, &c. Ry. Co. 299, 
 
 301 
 Lynch v. Nurdin, 22, 85, 144, 145, 148, 
 
 149, 2" 3 
 
 V. Smith, 125, 127, 144, 150 
 Lyon V. Detroit, &c. Ry. 374 
 Lyons v. Brookline, 149, 289 
 
 V. Desotelle, 273 
 
 V. Merrick, 225, 268 
 
 Macdougall V. Central, &c. Ry. Co. 431 
 
 MacKalley's Case, 270 
 
 McAlpin V. Powell, 55, 149, 208, 216, 
 
 416 
 McAndrews v; Bums, 320, 330, 343 
 McAunich v. Mississippi, &c. Ry. Co. 
 
 27,35,159 
 McCall V. Chamberlain, 225, 235 
 V. Railroad Co. 192, 194 
 McCandless v. Chicago, &c. Ry. Co. 
 227 
 V. McWha, 409 
 McCarthy v. Portland, 266 
 McCasker v. Long Island, &c. Ry. Co. 
 
 332, 333 
 McClary v. Lowell, 53, 189, 276 
 McClelland v. Louisville, &c. Ry. Co. 
 
 394 
 McCollin V. Reed, 416 
 McCool V. Galena, &c. Ry. Co. 230 
 McCorkle v. Chicago, &c. Ry. Co. 
 
 155, '64, 223 
 McCoy V. California, &c. Ry. Co. 231, 
 
 243 
 V. Phila., &c. Ry. Co. 15 
 McCready v. South Carolina Ry. Co. 
 
 246 
 McCue V. Klein, 397 
 McCutcheon v. Homer, 254 
 McCuUough V. Shoneman, 347 
 
 McDonald v. Chicago, &c. Ry. Co. 
 154. 172, 190 
 V. Kttsfield, &c. Ry. Co. 
 
 225, 233, 239, 242 
 
 McDonough v. Metropolitan Ry. Co. 
 
 309 
 McDowell V. New York, &c. Ry. Co. 
 
 233, ^3h 240 
 McElroy v. Nashua, &c. Ry. Co. 154 
 McEnery v. Waterford, &c. Ry. Co. 
 
 388 
 McGary v. Loomis, 38, 121, 124, 127, 
 
 150, 151, 288, 289 
 McGatrickv. Wasbn, 189 
 McGeary v. East, &c. Ry. Co. 121, 125 
 McGlynn v. Brodie, 351 
 McGrath v. Hudson River Ry. Co. 68, 
 191 
 V. Merwin, 188, 274 
 V. New York, &c. Ry. Co. 197 
 McGrew v. Stone, 34 
 McGovem v. Crickett, 203 
 McGowan v. St. Louis, &c. Ry. Co. 329, 
 
 341 
 McGuire v. Hudson, &c. Ry. 193, 203 
 
 V. Spence, 38, 260, 288, 289 
 Mclntyre v. New York, &c. Ry. Co. 
 
 159 
 McKane v. Michigan, &c. Ry. Co. 55, 
 
 190 
 McKean v. Burlington, &c. Ry. Co. 
 
 IS, 26 
 McKee v. Nelson, 397 
 McKeever v. Market St., &c. Ry. Co. 
 
 452, 453, 458 
 McKellar v. City of Detroit, 282 
 McKinne v. California, &c. Ry. Co. 
 
 311 
 McKinney v. Neil, 43 
 McLain v. Van Zandt, 121, 124 
 McLane v. Blue Point Mining Co. 320, 
 329 
 v. Shatpe, 294 
 McLaughlin v. City of Cony, 282 
 McLaury v. City of McGregor, 257, 
 
 260, 261, 452, 454 
 McLean v. Burbank, 65 
 McMahon v. Davidson, 115, 357 
 v. New York, 121 
 V. Northern, &c. Ry. Co. 
 125, 126, 151, 222, 223 
 McManusi v. Crickett, 297 
 
 V. Lancashire, &c. Ry. Co. 
 181 
 McMarra v. Chicago, &c. Ry. Co. 249 
 McMuUan v. Burlington, &c. Ry. Co. 
 
 211 
 McNarra v. Chicago, &c. Ry. Co. 63 
 
TABLE OF CASES. 
 
 xxxni 
 
 McNaughton v. Caledonian Ry. Co. 37 
 McPheeters v. Hannibal, &c. Ry. Co. 
 
 229 
 McQueen v. Central, &c. Ry. Co. 163 
 McQuillan v. Central, &c. Ry. Co. 431 
 Mabley v. Kittleberger, 20, 294 
 Mackay v. New York, &c. Ry. Co. 201 
 Mackin v. Boston, &c. Ry. Co. 342, 
 
 353 
 Macklin v. New Jersey Steamboat Co. 
 
 185 
 Macomb v. Smithers, 39 
 Macon v. California, &c. Ry. Co. 232 
 Macon, &c. Ry. Co. v. Baber, 229, 231, 
 232 . 
 V. Davis, 31, 68, 75, 78, 89, 93, 
 94, 95, 197. 199. 228, 232, 
 239 
 V. Johnson, 75, 96 
 V. Lester, 229, 232 
 V. McConnell, 246, 248 
 V. Vaughn, 229, 234 
 V. Winn, 16, 27, 94 
 Madan v. Sherard, 185 
 Maddox v. Cunningham, 288 
 
 V. Railway Co. 171 
 Madison v. Ross, 22 
 Mad Riyer Ry. Co. v. Barber, 351, 354, 
 
 363, 370 
 Magee v. Boston Cordage Co. 320,331, 
 
 351' 359 . „ , 
 
 Maginnis v. Canada Southern Bndge 
 
 Co. 355 
 
 T. New York, &c. Ry. Co. 53 
 
 192, 203 
 
 Magnin v. Dinsmore, 183 
 
 Maguire v. Middlesex Ry. Co. 304,305 
 
 Maher v. Atlantic, &c. Ry. Co. 210, 
 
 218 
 
 Mahlen V. Lake Shore, &c. Ry.C0.198, 
 
 204 
 
 Mahoney v. Libbey, 286 
 
 V. Metropolitan Ry. Co. 
 
 284 
 
 Makepeace v. Worden, 224 
 
 Malone v. Hathaway, 329, 332, 362 
 
 Mallory v. Griffey, 431 
 
 Maloy V. New York, &c. Ry. Co. 257, 
 
 259 
 Manchester, &c. Ry. Co. v.Walhs, 242 
 Manderschid v. City of Dubuque, 262 
 Mangam v. Brooklyn, &c.Ry. Co. 121, 
 
 122, 124, 150, 151, 299 
 Mangan v.Atterton, 131, 146, I47, I49, 
 
 213 
 Mangerton, The, 41 
 Manly V. Wilmington, &c. Ry. Co. 21, 
 
 26, 35, 145, 205, 210, 394, 426 
 C 
 
 Mann v. Birchard, 182 
 
 V. Central, &c. Ry. Co. 200 
 V. Oriental Print Works, 331, 
 
 332,361 
 V. Williamson, 234 
 
 Mansfield, &c. Coal Co. v. McEnery, 
 
 39, 370 
 Manufacturing Co. v. Morrissey, 351, 
 
 373 
 Manville v. Cleveland, &c. Ry. C0.330, 
 
 341 
 Manzoni v. Douglas, 452 
 Mareau v. Vanatta, 420 
 Marble v. Ross, 20, 40, 54, 57, 81 
 
 v. Worcester, 258 
 Marfell v. South Wales, &c. Ry. Co. 
 
 236 
 Marietta, &c. Ry. Co. v. Picksley, 194 
 
 v. Stevenson, 229 
 Marion v. Chicago, &c. Ry. Co. 297 
 Mark v. Hudson, &c. B. Co. 26 
 
 V. St. Paul, &c. Ry. Co. 43 
 Marks v. Borum, 419 
 Marquette, &c. Ry. Co. v. Spear, 39, 
 
 246, 249 
 Marriott v. Stanley, 19 
 Marsh v. New York, &c. Ry. Co. 225, 
 231, 236, 240 
 v. South Carolina Ry. Co. 364 
 Marshall v. Ipswich, 261 
 V. Schricker, 330 
 V. Stewart, 65, 317, 352, 374 
 Martensen v. Chicago, &c. Ry. Co. 21 
 Martin v. Baltimore, &c. Ry. Co. 1 54 
 V. Bishop, 15, 23 
 V. Great Northern Ry. Co.i^, 
 
 432 
 V. Wallace, 52 
 V. Western, &c. Ry. Co. 246, 
 
 247 
 Marvin v. Wilber, 177 
 Mascheck V. St. Louis, &c. Ry.C0.121 
 Maslin v. Baltimore, &c. Ry. Co. 184 
 Mason v. Missouri, &c. Ry. Co. 54, 91, 
 208, 210, 218 
 v. Thompson, 412 
 Masterton v. New York, &c. Ry. Co. 
 
 106, 115 
 Mathews v. Case, 343 
 Matthews v. St. Paul, &c. Ry. Co. 239 
 
 v. Warner, 73 
 Maultby v. City of Leavenworth, 257, 
 
 258 
 Maumus v. Champion, 69 
 May V. Hanson, 294, 431 
 Mayberry v. Concord, &c. Ry. Co. 224 
 
 239, 242 
 Maybey, The R. L. 407 
 
XXXIV 
 
 TABLE OF CASES. 
 
 Maynard v. Boston, &c. Ry. Co. 225, 
 
 235 
 Mayo V. Boston, &c. Ry. Co. 437 
 Mayor v. Colchester v. Brooke, 132, 
 
 135, 418 , 
 
 Mayor v. Marriott, 282, 284 
 Mayor, &c. of New York v. Bailey, 22 
 Mead v. Burlington, &c. Ry. Co. 231, 
 
 243 
 Meara's Admr. v. Holbrook, 349 
 Meek v. Penn, &c. Ry. Co. 210 
 Meeks v. Southern Pacific Ry. Co. 25, 
 
 53. 54- 211,218 
 Meesel v. Lynn, &c. Ry. Co. 301, 304, 
 
 305. 459 
 Mehan v. Syracuse, &c. Ry. Co. 39, 
 
 371, 373 
 Meibusv. Dodge. 145, 148, 211 
 Memphis, &c. Ry. Co. v. Blakeney, 
 229, 232 
 V. Jones, 16 
 V. Orr, 234 
 V. Thomas, 320, 374 
 V. Whitfield, 174 
 Mentges v. Midland, &c. Ry. Co. 226, 
 
 240 
 Mentzv. Second Ave. Ry.Co. 299,301 
 Merchant's, &c. Co. v. Comforth, 184 
 Mercier v. New Orleans, &c. Ry. 20, 
 
 192 
 Merriam v. Hartford, &c. Ry. Co. 185 
 Merrill v. Eastern Ry. Co. 177, 309 
 
 V. Hampden, 426 
 Metallic Compression Casting Co. v. 
 
 Fitchburg Ry. Co. 34 
 Metcalf V. Baker, 113, 115 
 Mettlestadt v. Ninth Ave. Ry. Co. 302 
 Metro, &c. Ry. Co. v. Jackson, 452 
 Meyer v. Midland, &c. Ry. Co. 211 
 
 V. North Mo. &c. Ry. Co. 236 
 Meyers v. Chicago, &c. Ry.Co. 197 
 Meyhew v. Sullivan Mining Co, 332 
 Michael V. Allestree, 314 
 Michell V. Allestry, 314 
 Michigan, &c. Ry.Co. v. Dolan, 358,359 
 V. Fisher, 226, 231 
 V. Lantz, 427 
 
 V. Smithson, 342, 352, 353, 369 
 Midland, &c. Ry. Co. v. Daykin, 231,239 
 Milarkey v. Foster, 254. 260 
 Miles V. Atlantic, &c. Ry. Co. 163, 212 
 
 V. Hannibal, &c.,Ry. Co. 235 
 Miller V. Chicago, &c. Ry. Co. 229,231, 
 238 
 V. Pendleton, 295 
 V. St. Louis, &c. Ry. Co. 432 
 V. Union Pacific Ry. Co. 39,218, 
 361 
 
 Milliman v. Newr York, &c. Ry. Co. 
 
 173 
 Mills V. Alexandria, &c. Ry. Co. 347 
 
 V. Stark, 233 
 Milton V. Hudson River Steamboat Co. 
 
 IS 
 Milwaukee, &c. Ry. Co.v. Hunter, 200, 
 
 203, 432 
 
 V. Kellogg, 34, 250 
 Mississippi. &c. Ry. Co. v. Mason, 60 
 
 V. Miller, 230, 231 
 Missouri Furnace Co. v. Abend, 352 
 
 370, 373, 426, 432 
 Missouri, &c. Ry. Co. v. Cornell, 245 
 
 V. Holley, 364 
 
 v. Leggett, 236, 238 
 Mitchell v. Chicago, &c. Ry. Co. 157, 
 172. 173, 426 
 
 V. Penn. Ry. Co. 16 
 
 v. Robinson, 314, 332, 343, 359 
 
 V. Woods, 414 
 Mitchil V. Alestree, 314 
 Mochler v. Towm of Shaftsbury, 293 
 Mobile, &c. Ry. Co. v. Ashci;aft, 44, 
 
 4S 
 
 V. Crenshaw, 145, 431 
 
 V. Hudson, 230 
 
 V. Smith, 331, 341 
 
 V. Thomas, 367 
 
 V. Williams, 229 
 Moebus V. Becker, 417, 452, 454, 458 
 Mohney V. Cook, 53, 189, 276, 277 
 Monroe v. Leach, 294 
 Montgomery v. Wright, 257, 258, 452, 
 
 454 
 Montgomery, &c. Ry. Co. v. Boring, 
 
 172 
 Moody v. Osgood, 294 
 Mooney v. Hudson River Ry, Co. 115 
 
 V. Maynard, 234 
 Moon's Admr. v. Richmond, &c. Ry. 
 
 Co. 331, 341, 342 
 Moore v. Abbott, 269 
 
 V. Central, &c. Ry. Co. 22, 37, 
 
 195, 431 
 V. City of Shreveport, 426 
 V. Gadsden, 284 
 V. Levert, 233 
 
 V. Penn. Ry. Co. 210, 212, 217 
 V. Phila. &c. Ry. Co. 197, 201, 
 
 202, 211 
 
 Moran v. Nashville, &c. Ry. Co. 194 
 V. New York, &c. Ry. Co. 343 
 Morey v. Fitzgerald, 264 
 Morgan, The, 407 
 Morgan v. Bridge Co. 121, 151, 431 
 
 V. City of Hallowell, 54 
 
 V. Cox, 22, 417 
 
TABLE OF CASES. 
 
 XXXV 
 
 Morgan v. Vale of Neath Ry. Co. 
 
 342, 343 
 Morning Light, The, 407 
 Morris v. Chicago, &c. Ry. Co, 58, 60 
 V. Fraker, 229 
 V. Phelps, 267 
 
 V. St. Louis, &c. Ry. Co. 235 
 V. Third Ave. Ry. Co. 185 
 Morris, &c. Ry. Co. v. Haslan, 204, 398 
 
 V. State, 24s 
 Morrison v. Construction Co. 356 
 V. Cornelius, 15 
 V. Erie Ry. Co. 124, 132,157 
 V. General Steam Nav. Co. 
 
 27, 53 
 V. Lawrence, 417 
 V. NewYork, &c.Ry.Co.240 
 Morrissey v. Eastern. &c. Ry. Co. 69, 
 208, 212, 218 
 V. Ferry Co. 27 
 Morse v. Erie Ry. Co. 193 
 
 V. Inhabitants of Belfast, 254 
 V. Rutland, &c. Ry. Co. 224 
 Morton v. Gloster, 49, 188, 275 
 Mosey v. Troy, 282, 284 
 Moss V. Johnson, 177 
 
 V. Pacific, &c. Ry. Co. 357, 358 
 Mott V. Consumers' Ice Co. 297 
 
 V. Hudson River Ry. Co. 34, 105 
 Moulton V. Aldrich, 41, 294 
 
 V. Inhabitants of Sanford, 256 
 Mount Vernon v. Dusouchett, 258, 265, 
 
 426, 427 
 Mower v. Inhabitants of Leicester, 253, 
 
 254. 
 Mowry v. Central, &c. Ry. Co. 124 
 Muldowney v. Illinois, &c. Ry. Co. 27, 
 
 35, 351, 365. 426 
 Mulherrin v. Delaware, &c. Ry. Co. 
 
 54, 70, 205, 217, 220, 392. 
 Mullan V. Phila. Steamship Co. 331 
 MuUaney v. Spence, 148, 151, 213 
 Mullen v. Rain ear, 15 
 
 V. St John, 286 
 'Mulligan v. Curtis, 125, 144, 151 
 Mumpower v. Hannibal, &c. Ry. Co. 
 
 230 
 Munch V. New York, &c. Ry. Co. 240 
 Munger v. Marshalltown, 257 
 
 V. Tonawanda, &c. Ry. Co. 
 15,36,57,231,233,236,240 
 Munn V. Reed, 127, 145, 151, 211 
 Munson v. Town of Derby, 262 
 Murch V. The Concord Ry. Co. 164 
 Murchison v. Sergent, 412, 413 
 Murdock v. Boston, &c. Ry. Co. 34 
 Murphy v. Boston, &c. Ry. Co. 320, 
 342, 351, 362 
 
 Murphy v, Caralli, 345 
 
 v. Chicago, &c. Ry. Co. 210, 
 219, 223, 246, 247,248,426 
 v. City of Brooklyn, 417 
 V. Deane, 15, 36, 37, 426 
 v. Gloucester, 262 
 V. Smith, 330 
 
 V. Union Pacific Ry. Co. 298 
 Murray v. Currie, 345 
 
 V. McShane, 38, 263, 286 
 V. Ponchartrain Ry. Co. 15 
 V. South Carolina, &c. Ry. 
 Co. 230, 318, 319, 321, 323, 
 328, 340, 377 
 Muster v. Chicago, &c. Ry. Co. 176 
 Myers v. Dixon, 278 
 
 V. Meinrath, 271, 274 
 Mynard v. Syracuse, &c. Ry. Co. 183 
 
 Nagel V. Mo. Pac. Ry. Co. 148,211, 216 
 Nagle V. Allegheny Ry. Co. 121 
 Nashville, &c. Ry. Co. v. Carroll, 20, 26, 
 
 75, 97, 98, 327, 342 
 V. Elliott, 351, 360 
 V. Jones, 331, 351 
 V. Prince, 221 
 V. Smith, 26, 65, 75 
 V. Wheless, 97, 321, 340 
 Nason v. Boston, 282 
 Navasota v. Pearce, 254 
 Nave v. Flack, 25, 56, 257, 258, 260 
 Neanow v. Ullech. 8, 35, 49 
 Needham v. San Francisco, &c. Ry. Co. 
 
 12, 25, 26, 36, 60, 61 
 Nehrbas v Central, &c. Ry. Co. 15, 431 
 Nelson v. Atlantic, &c. Ry. Co. 58 
 
 V. Chicago, &c. Ry. Co. 426, 458 
 V. Suffolk Ins. Co. 400 
 V. Vermont, &c. Ry. Co. 235 
 Nevin v. Pullman, &c. Car Co. 296 
 New Albany, &c. Ry. Co. v. Maiden, 
 238 
 V. Tilton, 226 
 New Haven Steamboat Co. v. Van- 
 
 derbilt, 27 
 Newhouse v. Miller, 27 
 New Jersey Express Co. v. Nichols, 20, 
 
 35, 69, 431. 432 
 New Jersey, &c. Ry. Co. v. Kennard, 
 
 164, 166, 167 
 New Jersey Trans. Co. v. West, 201, 
 
 204, 398 
 Newkirk v. Sabler, 264 
 New Orleans, &c. Ins. Co v. Railroad 
 
 Co. 184 
 New Orleans, &c. Ry. Co. v. Burke, 
 296, 298 
 v. Field, 230, 231, 232, 234 
 
XXXVl 
 
 TABLE OF CASES. 
 
 New Orleans, &c. Ry. Co. v. Harri- 
 son, 178, 347, 348 
 V. Mitchell, 194 
 Newson v. New York, &c. Ry. Co. 41 
 New World v. King, 19, 66, 133, 
 
 1 54, 176 , 
 Niblett V. Nashville, 262 
 Nichols V. Sixth Ave. Ry. Co. 307 
 Nicholson v. Erie Ry. Co. 196.208,219 
 V. Lancashire, &c. Ry. Co. 
 
 55- 172 
 Nickerson v. Harriman, 65 
 Nitro Phosphate Co. v. Docks Co. 73 
 Noble v. City of Richmond, 255 
 Nodine v. Doherty, 273, 275 
 Nolan v. Brooklyn, &c. Ry. Co. 304, 305 
 
 V. King, 260 
 Nolton V. Western, &c. Ry. Co. 176 
 Norfolk, &c. Ry. Co. v. Ormsby, 137 
 Norris v. Androscoggin, &c. Ry. Co. 
 224, 233, 234 
 
 v. Kohler, 267 
 
 v. Litchfield, 27, 37, 53, 54, 
 189, 452 
 North Chicago, &c. Mills v. Monka, 83 
 Northeastern, &c. Ry. Co. v. Sineath, 
 
 233 
 
 V. Wanless, 199 
 North Penn. &c. Ry. Co. v. Heileman, 
 192, 194, 196, 220,458,459 
 
 V. Mahoney, 1 21, 129, 136 
 
 V. Rehman, 225, 228, 239 
 Northern, &c. Ry. Co. v. Geis, 28, 61 
 
 V. Husson, 366, 369 
 
 V. Price, 22, 25, 58, 61 
 
 V. State, 217, 222, 431 
 Noyes v. Shepherd, 20 
 
 V. Smith, 352, 357 
 
 O'Bannon v. Louisville, &c. Ry. Co. 
 
 225, 233 
 O'Brien v. Commercial Ins. Co. 400 
 
 V. McGlinchy, 8, 21, 26, 1 2 5, 127 
 V. Phila. &c. Ry. Co. 20, 36 
 O'Byrne v. Burn, 388 
 Ochsenbein v. Shapley, 40, 452, 458 
 O'Connell v. Baltimore, &c. Ry. Co. 341 
 
 V. City of Lewiston, 275 
 O'Connor v. Adams, 360, 362 
 
 v. North Truckee Ditch Co. 
 
 25 
 v. Roberts, 329 
 O'Donnell v. Allegheny Ry. Co. 160, 
 
 343. 351 
 V. Providence, &c. Ry. Co. 
 218 
 O'Flaherty v. Union, &c. Ry. Co. I2i, 
 138, 141,150,291 
 
 Ogden V. Rummens, 372 
 
 O'Hagan v. Dillon, 390 
 
 Ohio, &c. Ry. Co. v. Brubaker, 236 
 
 v. CoUam, 340, 342, 358, 374,452 
 
 v. Clutter, 200 
 
 V. Eaves, 83, ig7, 226 
 
 v. Fowler, 227 
 
 V. Hannpiersley, 330, 360 
 
 V. Muhling, 164 
 
 V. Nichols, 184 
 
 V. Porter, 68, 83 
 
 V. Selby, 155, 184 
 
 V. Shanefelt, 83, 246, 248 
 
 V. Stratton, 60, 125, 132 
 
 V. Tindall, 340 
 Oil City Gas Co. v. Robinson, 25 
 O'Keefe v. Chicago, &c. Ry. Co. 58, 
 
 80, 92, 396 
 Oldfield v. New York & Harlem Ry. 
 
 Co. 150,299,439,459 
 Oliver v. Worcester, 262 
 O'Malley v. Dom, 293 
 O'Mara v. Hudson River Ry. Co. 128, 
 
 399 
 O'Neil v. St. Louis, &c. Ry. Co. 342, 
 
 353 
 O'Neill V. City of New Orleans, 255 
 Oppenheim V. White Lion Hotel Co. 
 
 412, 414 
 Ormond v. Central, &c. Ry. Co. 246 
 V. Hayes, 186, 349 
 v. Holland, 312, 356, 358 
 Ofndorff v. Adams Ex. Co. 184 
 O'Rorke v. Pacific, &c. Ry. Co. 371 
 O'Rourke v. Chicago, &c. Ry. Co. 60 
 Ortmayer v. Johnson, 83 
 Osage City v. Brown, 40, 257, 283, 458 
 Osborne v. Knox, &c. Ry. Co. 347 
 v. Morgan, 375 
 v. Union Ferry Co. 172 
 Ostertag v. Pacific, &c. Ry.Co. 129, 222 
 Otis V. Janesville, 16, 20, 23, 36, 113 
 
 V. Thorn, 115 
 Owens V. Hannibal, &c. Ry. Co. 230 
 V. New York, &c. Ry. Co. 364 
 V. Richmond, &c. Ry. Co. 426 
 Owners of Steamboat Farmer y. Mc- 
 
 Craw, 37, 407 
 Oyshterbank v. Gardner, 398 
 Ozier v. Hinesburgh, 261 
 
 Pacific, &c. Ry. Co. v. Brown, 226,227 
 
 V. Hauls, 26, 77, 91, 227 
 Packet Co. v. McCue, 65 
 Paddock v. Northeastern Ry. Co. 55 
 Paducah Ry. Co. v. Hoehl, 15,36, 100, 
 431 
 
TABLE OF CASES. 
 
 XXXVU 
 
 Page V. Bucksport, 34, 43, 262 
 V. HoUingsworth, 225 
 V. Wells, 376 
 Palmer v. Andover, 257, 269 
 V. Barker, 292 
 V. Bearing, 39, 452, 458 
 V. Missouri Pacific Ry. Co. 245 
 Palys V. Erie Ry. Co. 15, 25, 198 
 Pardington v. South Wales Ry. Co. 
 
 181 
 Park V. O'Brien, 426, 433, 447, 459 
 Parker v. Adams, 293, 294, 426 
 
 V. Boston, &c. Ry. Co. 254 
 
 V. Latner, 275 
 
 V. Nassfla, 50, 53 
 
 V. Portland Publishing Co. 54, 
 
 219 
 V. Rensselaer, &c. Ry. Co. 236 
 Parkhill v. Brighton, 257, 258, 259 
 Parkhurst v. Johnson, 362 
 Parrott v. Barney, 22 
 
 V. Wells, Fargo & Co. 22 
 Passenger Railroad Co. v. Young, 296 
 Pastene v. Adams, 56 
 Patten v. Chicago, &;c. Ry. Co. 172 
 
 V. Rea, 314 
 Patterson v. Burlington, &c. Ry. Co. 
 426 
 V. Pittsburgh, &c. Ry. Co. 
 331. 334. 351. 361, 272, 
 373 
 V. Wallace, 352, 367 
 Paulmier v. Erie Ry. Co. 65, 313, 351, 
 
 362 
 Payne v. Chicago, &c. Ry. Co. 113 
 
 V. Troy, &c. Ry. Co. 200 
 Peach V. Utica, 279, 398 
 Pearce v. Atwood, 274 
 Pearsall v. Post, 288 
 Pearson v. Duane, 298 
 
 V. Milwaukee, &c. Ry. Co. 228, 
 230, 232, 23s 
 Peck V. Neil, 1 1 5 
 
 V. New York, &c. Ry. Co. 1 14 
 Peek V. North, &c. Ry. Co. 180, 181 
 Peixotti V. McLaughlin, 185 
 Pendleton St. Ry. Co. v. Shires, 298 
 
 V. Stallman, 298 
 Pendrill v. Second Ave. Ry. Co. 299 
 Penfold V. Universal Life Ins. Co. 401 
 Penn. Canal Co. v. Bentley, 193,431 
 Penn. Ry. Co. v. Ackerman, 193 
 
 V. Aspell, 14,60, 72, 157, 172 
 
 v. Beale, 191, 192, 193, 194 
 
 V. Bock, 138, 151 
 
 V. Dean, 158,452,458 
 
 V. Gallagher, 347 
 
 V. Gallentine, 427 
 
 Penn. Ry. Co. v. Goodman, 1 5 
 
 V. Henderson, 155, 184 
 
 V. Hope, 34, 244, 250 
 
 V. James, 138 
 
 V. Kelly, 137 
 
 V. Kerr, 34, 244, 250 
 
 V. Kilgore, 156 
 
 V. Langdon, 36, 159, 161, 163 
 
 V. Lewis, 139, 211, 218, 219, 419 
 
 V. Long, 364, 370 
 
 V. Matthews, 200, 201 
 
 ■*•. Morgan, 21, 128, 211 
 
 V. Ogier, 72 
 
 V. Price, 154 
 
 V. Rathgeb, 192 
 
 V. Ray, 154 
 
 V. Riblet, 225 
 
 V. Righter, 15, 35, 81 
 
 V. Roney, 43, 45, 47, 80, 375 
 
 V. Rudel, 192 
 
 V. Schultz, 248 
 
 V. Sinclair, 15, 26, 69 
 
 T. Stalke, 452 
 
 V. State, 209 
 
 V. Wachter, 367 
 
 V. Weber, 194, 431 
 
 V. Werner, 43 
 
 V. Zebe, 60, 65, 138 
 People V. Eastwood, 397 
 
 V. New York Hospital, 410 
 People's Passenger Ry. Co. v. Green, 
 26, 302, 303, 305 
 
 V. Lauderbach, 307 
 Peoria Bridge Assoc, v. Looihis, 269 
 Peoria, &c. Ry. Co. v. Barton, 235 
 
 v. Champ, 227 
 
 V. Clayberg, 192, 195 
 Peplow V. Richardson, 275 
 Perigo V. Chicago, &c. Ry. Co. 365, 
 
 370, 371 
 Perkins v. Eastern, &c. Ry. Co. 224, 
 226, 233, 234, 426 
 V. Inhabitants of Fayette, 254, 
 
 256, 269 
 V. New York, &c. Ry. Co. 66, 
 176, 182 
 Perley v. Eastern Ry. Co. 245, 250 
 Perry v. Lansing, 1 1 5 
 Peschel v. Chicago, &c. Ry. Co. 331, 
 
 332 
 Peters V. Rylands, 153 
 Peterson v. Whitebreast Coal, &c. Co. 
 
 320, 329 
 Peverly v. Boston, 1 5, 20, 295, 452 
 Phalen v. Clark, 50 
 Phila., &c. Ry. Co. v. Boyer, 35, 72, 1 1 1, 
 
 154, 431 
 V. Carr, 198, 202, 203 
 
XXXVlll 
 
 TABLE OF CASES. 
 
 Phila. &c. Ry. Co. v. Derby, 154, 176,222 
 V. Hassard, 309 
 V. Hendrickson, 244, 247 
 V. Hogan, 72 
 
 V. Hummel, 70, 129. 219, 225 
 V. Lehman, 189, 276 
 V. Long, 137, 138, 139, 141, 288, 
 
 291 
 V. Phila. &c. Towboat Co. 53, 
 
 186, 188, 189, 276 
 V. Schultz, 244 
 V. Spearen, 70, 128, 129, 137, 
 
 195, 198, 211,218, 225,394 
 V. Stebbing, 191 
 
 PhiUips V. Clark, 19 
 
 V. Dickerson, 398 
 V. Rennselaer, &c. Ry. Co. 1 56 
 Pierce v. New Bedford, 280 
 
 V. Whitcomb, 54, 56, 219, 259 
 Piggott V. Eastern Counties Ry. Co. 
 
 243, 250 
 Pingree v. Leyland, 370 
 Pittsburgh v. Grier, 43, 190 
 Pittsburgh. &c. Ry. Co. v. Andrews, 
 165 
 
 V. Bingham, 190 
 
 V. Bumstead, 126, 127 
 
 V. Caldwell, 121, 128, 130 
 
 V. Collins, 39, 208, 218 
 
 V. Devinney, 340, 341 
 
 V. Dunn, 200 
 
 V. Hinds, 296, 298 
 
 V. Hixon, 246 
 
 V. Jones, 246, 248 
 
 V. Kuntson, 83, 223 
 
 V. McClurg, 164, 165, 452 
 
 V. Martin, 192 
 
 V. Methven, 236 
 
 V. Noel, 246, 427 
 
 V. Pearson, 138, 139, 288, 291 
 
 V. Pillow, 298 
 
 V. Rohrman, 44 
 
 V. Sentmeyer, 364 
 
 V. Smith, 69, 238 
 
 V. Stuart, 226, 228, 239 
 
 V. Taylor, 40, 43, 199, 269 
 
 V. Vining's Admr. 121, 125, 138, 
 
 196, 427 
 
 V. Wright, 193 
 V. Yundt, 195 
 Plaster v. Illinois, &c. Ry. 426 
 Piatt V. Forty-Second St. Ry. Co. 309 
 Platz T. City of Cohoes, 189, 276 
 Pluckwell V. Wilson, 294 
 Plumley V. Birge, 121, 145, 211 
 Plummer v. Eastern Ry. Co. 192, 195 
 Poeppers v. Missouri, &c. Ry. Co. 249, 
 250 
 
 Poler V. New York, &c. Ry. Co. 237, 238 
 Pomfret v. Ricroft, 264 
 Pool V. Alger, 233 
 
 V. Chicago, &c. Ry. Co. 72, 160, 
 163 
 Poole V. North Carolina Ry. Co. 210 
 Porter v. Hannibal, &c. Ry. Co. 352 
 Potter V. Chicago, &c. Ry. Co. 81, 
 
 432 
 V. Faulkner, 349 
 V. Warner, 81, 409 
 Poucher v. New York, &c. Ry. Co. 
 
 155, 182, 183 
 Powell V. Missouri Pacific Ry. Co. 192, 
 198 
 V. Penn. Ry. Co. 225 
 Powers V. New York, &c. Ry. Co. 370 
 Powhatan, &c. Co. v. Appomattox Ry. 
 
 Co. S3 
 Praeger v. The Bristol, &c. Ry. Co. 
 
 173 
 Pray v. Mayor, &c. 254 
 Prentiss v. Boston, 426 
 Prescott V. Eastern, &c. Ry. Co. 200 
 President & Trustees of the Town of 
 
 Mount Vernon v. Dusouchett, 258, 
 
 265, 426, 427 
 Price V. Central, &c. Ry. Co. 225 
 V. Houston, &c. Ry. Co. 321 
 V. St. Louis, &c. Ry. Co. 155, 
 
 157 
 Prideaux v. City of Mineral Point, 113, 
 
 432, 449 
 Priest V. Nicholls, 19 
 Priestley v. Fowler, 316, 318, 321, 323, 
 
 328, 338, 377, 379, 386, 387, 388 
 Prime v. Kentucky Furniture Co. 127 
 Prince V. International, &c. Ry. Co. 
 
 177 
 Prinsors Case, 270 
 Providence v. Clapp, 254, 280, 282 
 Puffer V. Orange, 262 
 Pullman Palace Car Co. v. Gardner, 
 
 416 
 Purl V. St. Louis, &c. Ry. Co. 204 
 Puterbaugh v. Reasor, 107, 108, 1 14 
 Putnam v. Broadway, &c. Ry. Co. 
 
 296, 297 
 Pyne v. Chicago, &c. Ry. Co. 341 
 
 Quaid V. Cornwall, 351 
 Quarman v. Burnett, no, 314 
 Quimby v. Vermont, &c. Ry. Co. 233 
 Quincy v. Barker, 283 
 Quinn v. Donovan, 83 
 
 V. Illinois, &c. Ry. Co. 159 
 V. New Jersey Lighterage Co. 
 320 
 
TABLE OF CASES. 
 
 XXXIX 
 
 Quinn v. Power, 177 
 
 R. V. Arundel, 360 
 
 V. Bubb, 129 
 
 V. Chillesford, 360 
 
 V. Friend, 129 
 
 V. St. Petroix, 360 
 
 V. Smith, 129 
 
 V. Squire, 129 
 Radley v. London, &c. Ry. Co. 27, 28, 
 
 35,60 
 Ragsdaie v. Memphis, &c. Ry. Co. 
 
 340 
 Raiford v. Mississippi, &c. Ry. Co. 
 
 229, 232 • 
 Railroad Co. v. Barrett, 185 
 V. Beale, 193 
 V. Bowler, 343 
 V. Fitzpatrick, 342 
 V. Fort, 331, 332 
 V. Gladmon, 145,194,298, 
 
 431. 438, 439, 447 
 V. Henning, 171 
 V. Herbeck, 137 
 V. Houston, 193,194, 208, 
 
 218, 220 
 
 V. Jones, 15, 20, 37 
 V. Lockwood, 181, 182 
 V. Lowrey, 195 
 V. McTighe, 431 
 V. Norton, 12, 60, 70, 73, 
 ^6^ 78, 81, 205, 206, 
 
 219, 300 
 V. Pollard, 22 
 
 V. Skinner, 206, 225, 226, 
 233 
 
 V. State, 197 
 
 V. Stevens, 184 
 
 V. Stout, 144, 148, 214, 
 215,216,456 
 
 V. Walker, 97, 221 
 
 V. Weber, 193 
 
 V. Whitton, 197 
 Railway Co. v. Lewis, 330 
 
 V. Sullivan, 331, 332 
 Rains v. St. Louis, &c. Ry. Co. 364 
 Raisin v. Mitchell, 85 
 Ramsay v. Quinn, 333 
 Ramsden v. Boston, &c. Ry. Co. 296 
 Ramsey v. Rushville, 261, 458 
 Randall v. Baltimore, &c. Ry Co. 340 
 V. Connecticut River Ry. Co. 
 192, 458 
 Rankin v. Dixon, 387 
 Ransom v. Chicago, &c. Ry. Co. 197 
 Rathbone v. Union Ry. Co. 302 
 Rathbun v. Payne, 68, 442 
 Rauch V. Lloyd, 137, 223 
 
 Rawson v. Pennsylvania Ry. Co. 185 
 
 Ray V. Manchester, 280 
 
 Raymond v. City of Lowell, 254, 257, 
 
 260, 278, 452 
 Read v. Patterson, 408 
 
 V. Great Eastern Ry. Co. 38 § 
 Readhead v. Midland Ry. Co. 154, 
 
 362 
 Reading, &c. Ry. Co. v. Ritchie, 192 
 Ream v. Pittsburgh, &c. Ry. Co. 197, 
 
 208 
 Reardon v. City, 255 
 Rector v. Pierce, 259 
 Rector of the Church of the Ascension 
 
 v. Buckhart, 286 
 Reed v. Belfast, 253 
 
 V. Northfield, 40, 257, 258 
 Reedie v. London, &c. Ry. Co. 1 10 
 Reeves v. Delaware, &c. Ry. Co. 41, 
 
 207, 225,1226 
 Regina v. Rymer, 275 
 v. Watts, 286 
 Rehberg v. Mayor, &c., of New York, 
 
 260 
 Reich ,v. Mayor, &C., 284 
 Renneker V. South Carolina Ry. Co. 15 
 Rensselaer, &c. Ry. Co. v. Paige, 233 
 Renwick v. New York, &c. Ry. Co. 
 
 197, 400 
 Rex V. Brotherton, 370 
 
 V. Pease, 233 
 Rexter v. Starin, 16, 43, 48 
 Reynolds v. Burlington, 22, 257 
 
 V. Hindman, 61, 197, 426 
 V. New York, &c. Ry. Co. 
 194, 198 
 Rhodes v. Utica, &c. Ry. Co. 235, 441, 
 
 446 
 Rice V. Montpelier, 261, 262 
 Riceman v. Havemeyer, 441, 446 
 Richards v. Enfield, 254, 266 
 
 V. Fuqua's Adm'r, 294 
 Richardson v. Metropolitan Ry. Co. 171 
 V. Milburn, 225- 
 v. New York, &c. Ry. Co. 
 
 200 
 V. Wilmingfton, &c. Ry. 
 Co. 205, 394 
 Richmond v. Sacramento, &c. Ry. Co. 
 
 227, 232 
 Richmond, &c. Ry. Co. v. Anderson, 
 15,26, 27,37 
 V. Medley, 245, 248 
 V. Morris, 1 5, 20, 37, 1 57 
 Ricker y. Freeman, 115 
 Ricketts v. East & West India Docks, 
 
 &c. Co. 224, 242 
 Riddle v. Proprietors, &c. 253 
 
xl 
 
 TABLE OF CASES 
 
 Riest V. Goshen, 427 
 Rigby V. Hewett, 1 10 
 Riley v. Connecticut River Ry. Co. 
 36s, 426 
 V. State Line Steamship C0.34S, 
 .351.362 
 Ring V. City of Cohoes, 60, 106, 256, 
 
 268 
 Rivers y. City Council of Augusta, 268, 
 
 269 
 Roberts v. Smith, 312 
 Robertson v. Erie Ry. Co. 163, 177 
 
 V. Terra Haute, &c. Ry. Co. 
 320, 342 
 Robeson v. French, 271 
 Robinson v. Cone, 128, 136, 144 
 
 V. Fitchburg R. R. Co. 426 
 v. Grand Trunk, &c. Ry. Co. 
 
 235 
 V. Houston, <%c. Ry. Co. 371 
 V. New York, &c. Ry. Co. 
 106, 113, 115, 441,443 
 V. Pioche, 390, 391, 396 
 V. Western, &c. Ry. Co, 27, 
 41, 299, 431 
 Rockford, &c. Ry. Co. v. Byam, 193 
 V. Deianey, 78, 83, 89, 121, 211 
 V. Heflin, 236 
 V. Hillmer, 83, 201 
 V. Irish, 83, 226, 230, 232, 236 
 V. Lewis, 229 
 V. Lynch, 237 
 V. Rafferty, 83, 229, 230 
 Rock Island v. Vanlandschoot, 391, 
 
 397 
 Rodman v. Michigan, &c. Ry. Co. 341 
 Roesner v. Hermann, 16, 385 
 Rogers v. Chicago, &c. Ry. Co. 236 
 V. Newburyport, &c. Ry, Co. 
 
 225, 231, 235, 242 
 V. Overton, 375, 427 
 Roll V. Northern, &c. Ry. Co. 43 
 Rome V. Dodd, 96 
 Roof V. Railroad Co. 432 
 Rose V. Des Moines, &c. Ry. Co. 184 
 Ross V. Boston, &c. Ry. Co. 245, 247 
 Rothe V. Milwaukee, &c. Ry, Co. 53, 
 
 197, 210 
 Roulston V. Clark, 54, 287 
 Rowe V. Railroad Co. 230 
 Rowell V. City of Lowell, 287 
 
 V. Railroad Co. 245, 247 
 Rowland v. Cannon, 139 
 Rucker v. Mo. Pac. Ry. Co. 160, 163 
 Rudolphy v. Fuchs, 454 
 Ruland v. South Newmarket, 452, 458 
 Runyon v. Central, &c. Ry, Co, 20, 35, 
 37, 195 
 
 Rusch V. Davenport, 426 
 Rushville v. Poe,427 
 Russell V, Men of Devon, 253 
 
 V. Village of Cavastota, 367 
 Rust V. Low, 225, 233 
 Ruter V. Foy, 69, 70 
 Ryan v. Bagaley, 332, 343. 359 
 
 V. Cumberland, &c. Ry. Co. 164, 
 
 341 
 V. Fowler, 312, 351 
 V. Hudson River Ry. Co. 441 
 V. New York, &c. Ry. Co. 250 
 V. Thompson, 56 
 Rylands v. Fletcher, 287 
 
 St Joseph, &c. Ry. Co. v. Chase, 245, 
 248 
 
 v. Grover, 235 
 St. Louis, &c. Ry. Co. v. Bell, 148,212, 
 216 
 
 V. Britz, 327, 330, 340 
 
 V. Cantrell, 72, 158 
 
 V. Manly, 53, 83, 193, 197 
 
 V. Mathias, 195 
 
 V. Terhune, 197 
 
 V. Todd, 66, 82, 89, 226, 228, 240 
 
 V. Valirius, 351, 355 
 
 V. Vincent, 231 
 
 V. Washburn, 237 
 St. Paul V. Kuby, 125 
 Sadler v. Henlock, 314 
 Salem v. GoUer, 1 5 
 Salina v. Trosper, 257, 390, 392 
 Salisbury v. Herchenroder, 34, 287 
 Salmon v. Delaware, &c. Ry. Co. 245, 
 
 248 
 Salter V. Utica,&c. Ry. Co. 198 
 Sammon v. New York, &c. Ry. Co. 330 
 Sanders v. Reister, 54, 263 
 
 V. Young, 295 
 Sanderson v. Frazier, 432 
 Sandusky, &c. Ry. Co. v. Sloan, 237 
 Sanford v. Eighth Ave. Ry. Co. 69, 296 
 Sappho, The, 405 
 
 Sauter v. New York, &c. Ry. Co. 25, 65 
 Savage v. Bangor, 254, 262 
 
 v. Com Exchange Ins. Co. 27 
 Sawyer v. Rutland, &c. Ry. Co. 347 
 V. Sauer, 20, 87, 91 
 v. Vermont, &c. Ry. Co. 239 
 Sayer v. Portsmouth, &c. Ry. Co. 184 
 Schaabs v. Wheel Co. 27 
 Schaefler v. Sandusky, 40, 258, 283 
 Schaickv. Hudson River Ry. Co. 203 
 Scheffer v. Washington City, &c. Rv 
 Co. 34, 6s ^ 
 
TABLE OF CASES. 
 
 Xli 
 
 Schierhold v. North Beach, &c. Ry. Co. 
 
 26, 125, 150, 211 
 
 Schmid v. Humphrey, 53, 187, 189, 274 
 Schmidt v. Chicago, &c. Ry. Co. 65, 83 
 Schofield V. Chicago, &c. Ry. Co. 192, 
 
 193. 19s- 196 
 School District v. Boston, &c. Ry. Co. 
 
 184 
 Schroeder v. Michigan Car Co. 354, 366 
 Scott V. Dublin, &c. Ry. Co. 28, 60 
 V. London Docks Co. 288 
 V. Shepherd, 34, 250 
 Schultz V. Chicago, &c.Ry. Co. 16, 43, 
 44, loo 
 V. Milwaukee, 266, 280 
 V. Penn. Ry. Co. 193 
 Schum V. Penn. Ry.'Co. 433 
 Schwarz v. Hannibal, &c. Ry. Co. 226, 
 
 230 
 Scranton and The Emerald Isle, The, 
 
 407 
 Scranton v. Hill, 261 
 Searle v. Lindsay, 343 
 Searles v. Milwaukee, &c. Ry. Co. 227, 
 
 229 
 Sears v. Centra], &c. Ry. Co. 365, 366 
 
 V. Dennis, 43 
 Seaver v. Boston, &c. Ry. Co, 330, 342 
 Secord v. St. Paul, &c. Ry. Co. 36, 63, 
 
 64, 73. 431 
 Seeley v. Peters, 229 
 
 V. Town of Litchfield, 282 
 Self V. Dunn, 295 
 Serendatv. Saisse, 388 
 Severy v. Nickerson, 54, 190, 263 
 Sevier v. Vicksburg, &c. Ry. Co. 172, 
 
 175 
 Sewell V. City of Cohoes, 364 
 Seybolt v. Erie Ry. Co. 183 
 
 V. New York, &c. Ry. Co. 154 
 Seymour v. Maddox, 219, 317 
 Shaber v. St. Paul Ry. 193, 195 
 Shaffer v. Railroad Co. 25 
 Shanahan v. New York, &c. Ry. Co. 
 
 241 
 Shanny v.- Androscoggin Mills, 353, 
 
 358, 370, 374 
 V. Androscoggin, &c. Ry. 
 
 Co. 351 
 Shapleigb v. Wyman, 279, 458 
 Sharrod v. London, &c. Ry. Co. 224 
 Shaw V. Boston, &c. Ry. Co. 200 
 V. Robberds, 243, 400 
 V. York, &c. Ry. Co. 180 
 Shea V. Potrero, &c. Ry. Co. 41, 299 
 V. Reems, 279, 315 
 V. Sixth Ave. Ry. Co. 297 
 Sheehan v. Edgar, 279 
 
 Shearman v. Toronto, &c. Ry. Co. 164 
 Sheff V. Huntington, i6, 432 
 Sheffield v. Rochester, &c. Ry. Co. 194 
 Shepard v. Buffalo, &c. Ry. Co. 231, 
 
 240, 242 
 Shephard v. Midland Ry. Co. 1 54 
 Sheridan v. Brooklyn, &c. Ry. Co. 104, 
 
 113, 115.305 
 Sherley v. Billings, 296, 314 
 Sherman v. Anderson, 226, 234, 236 
 V. Fall River Iron Co. 73 
 V. Hannibal, &c. Ry.C0.163, 
 
 178 
 V. Rochester, &c. Ry. Co. 
 
 340, 341 
 T. Syracuse, &c. Ry. Co. 320, 
 
 329 
 
 V. Western Stage Co. 26, 65 
 Sherwood v. City of Hamilton, .256 
 
 V. General Ins, Co. 400 
 Shields v. Yonge,- 320 
 Shipley v. Fifty Associates, 287 
 Shriver v. Sioux City, &c. Ry. Co. 184 
 Short V. Baltimore City Ry. Co. 285 
 Show V. Boston, &c. Ry. Co. 202 
 Siegrist v. Arnot, 44 
 Sika V. Chicago, &c. Ry. Co. 235, 242 
 Silliman v. Lewis, 27 
 Sills V. Brown, 36, 64, 73 
 Silver v. Kansas City, &c. Ry. Co. 229, 
 
 235 
 Simpkins v. Columbia, &c. Ry. Co. 230 
 Simmons v. New Bedford, &c. Ry.Co. 
 
 154 
 Simmonson v. Stellenmerf, 53, 293 
 Simons v. Gaynor, 260, 278 
 Simpson v. Bloss, 50 
 
 v. Hand, 15, 60, 108, ill, 112, 
 119 
 Sinclair v. Bemdt, 361 
 Siner v. Great Western Ry. Co. 171, 
 
 175. 306 
 Singleton v. Eastern Counties Ry. Co. 
 128, 131 
 v. Southwestern Ry. Co. 347 
 Sioux City v. Weare, 260 
 Six Carpenters' Case, 135 
 Skelton v. London, &c. Ry. Co. 201 
 Skerritt v. Scallan, 356 
 Skinner v. Housatonic Ry. Co. 65 
 Skipp v. Eastern Counties Ry. Co. 317, 
 
 372 
 Slater v. Jewett, 320, 340, 341, 349 
 Slattery's Admr. v. Toledo, &c. Ry. 
 
 Co. 342 
 Sleeper v. Sandown, 279, 398 
 Slim V. Great Northiern, &c. Ry. Co. 
 
 180 
 
xlii 
 
 TABLE OF CASES. 
 
 Slimmer. V. Merry, 295 
 
 Sloan V. Hubbard, 229, 235 
 
 Slosson V. Burlington, &c. Ry. Co. 
 246, 426, 452, 458 
 
 Small V. Chicago, &c. Ry. Co. 246, 250 
 
 Smallman v. Whilter, 178 
 
 Smith V. Atchison, &c. Ry. Co. 125,212 
 V. Boston Gaslight Co. 438 
 V. Boston, &c. Ry. Co. 50, 189, 
 
 272 
 V. Chicago, &c. Ry. Co. 222, 227, 
 
 229, 342, 356, 357 
 V. Conway, 53 
 V. Dygert, 292 
 
 V. Eastern, &c. Ry. Co. 245, 248 
 V. Flint, &c. Ry. Co. 320, 342, 
 
 353, 366 
 V. Gardiner, 292, 293 
 V. Hannibal, &c. Ry. Co. 245, 248 
 V. Hestonville, &c. Ry. Co. 138, 
 
 151, 288, 371 
 V. Kansas, &c. Ry. Co. 239 
 V. London & St. Katharine's 
 
 Dock Co. 55 
 V. Londpn & Southwestern Ry. 
 
 Co. 23, 250 
 V. Lowell Manfg. Co. 320 . 
 V. Minneapolis, &c, Ry. Go. 210 
 V. Nashville, &c. Ry. Co. 97, 221 
 T. New York, &c. Ry. Co. 66, 
 
 182, 344, 347, 355 
 V. O' Conner, 128, 137 
 V. Oxford Iron Co. 351, 362 
 V. Rollins, 275 
 V. St. Lawrence, &c. Co. 40 
 V. Smith, 19, 53, 114, 119, 256 
 V. Steele, 65 
 V. Stokes, 268 
 Smoot V. The Mayor, 431 
 Snow V. Adams, 255 
 
 V. Fitchburg, &c. Ry. Co. 1 54, 175 
 V. Housatonic Ry. Co. 40, 258, 
 
 3Si> 364, 373 
 V. Provincetown, 270 
 Snyder v. Hannibal, &c. Ry. Co. 129, 
 177. 314 
 V. Pittsburgh, &c. Ry. Co. 63, 
 „. .24-5, 248, 249 
 Solen V. Virginia, &c. Ry. Co. 210, 218 
 Sollomon Ry. Co. v. Jones, 353 
 Solomon v. Central Park, &c. Ry. Co. 
 
 305 
 Southall V. Jones, 268 
 Southcote V. Stanley, 55, 263, 415 
 Southcote's Case, 2 
 Southern Express Co. v. Crook, 184 
 South, &c. Ry. Co. V. Singleton, 157, 
 158,452,458 
 
 South, &c. Ry. Co. v. Williams, 226, 
 
 228, 229, 232, 238, 239 
 Southwestern, &c. Ry. Co. v. Han- 
 kerson, 54, 204, 205, 392, 
 
 394 
 V. Paulk,43 
 Southworth v. Old Cdony, &c. Ry. 
 
 Co. 2go, 267, 268 
 Soward v. Chicago, &c. Ry. Co. 236 
 Sparhawk v. Salem, 262 
 Spelman v. Fisher Iron Co. 362, 367 
 Spence v. Chicago, &c. Ry. Co. 230 
 Spencer v. Illinois, &c. Ry. Co. 199 
 
 V. Milwaukee, &c. Ry. Co. 166, 
 
 167 
 V. Utica, &c. Ry. Co. 441, 442, 
 
 444 ' 
 Spice V. Bacon, 412,414 
 Spinner v. New York, &c. Ry. Co. 225, 
 
 228, 235, 239, 240 
 Springett v. Ball, 20, 65, 260, 269 
 Spring's Adm'r v. Glenn, 70, 325 
 Spofford V. Harlow, 49, 292 
 Spooner v. Brooklyn City, &c. Ry. Co. 
 
 "5, 304 
 Squire v. Central Park Ry. Co. 441 
 Staats T. Hudson River Ry. Co. 235, 
 
 238 
 Stacke v. Milwaukee, &c. Ry. Co. 68 
 Stackpole v. Healy, 233 
 Stackus V. New York, &c. Ry. Co. 193, 
 
 194 
 Stafford v. Ingersol, 263 
 
 V. Oskaloosa, 113 
 Stanton v. City of Springfield, 282, 285 
 V. Metropolitan Street Ry. Co. 
 187, 272,309 
 Star V. Rookesby, 224, 233 
 Starry v. Dubuque, &c. Ry. Co. 432 
 State V. Baltimore, &c. Ry. Co. 189, 
 209, 210 
 V. Berdett'a, 267 
 V. Burlington, 253 
 V. Edens, 267 
 V. Goff, 189 
 
 v. Grand Trunk Ry. Co. 172 
 V. Hardister, 41 1 
 V. Larry, 271 
 V. Manchester, &c. Ry. Co. 1 5. 
 
 25, 26, 54, 65, 192 
 V. Maine Central Ry. Co. 191, 
 
 194 
 V. RailroachCo. 189 
 V. Schulz, 41 1 
 Steamboat Farmer v. McCraw, 37, 
 
 407 
 Steamboat New World v.King, 19, 133, 
 154, 176 
 
TABLE OF CASES. 
 
 xliii 
 
 Steams v. Old Colony, &c. Ry. Co. 
 
 225 
 Stebbins v. Central, &c. Ry. Co. 36, 64, 
 73 
 V. Township of Keene, 40 
 Steele v. Burkhardt, 26, 35, 49, 50, 257, 
 266, 292 
 V. Central, &c. Ry. Co. 15, 19 
 V. City of Boston, 280 
 Steers v. Liverpool, &c. .Steamship Co. 
 
 183 
 Steffen v. Chicago, &c. Ry. Co. 356 
 Steinmetz v. Kelly, 69 
 Stepp V. Chicago, &c. Ry. Co. 25 
 Sterling BridgeKIo. v. Pearl, 83 
 Stetter v. Chicago, &c. Ry. Co. 313 
 Steves V. Oswego, &c. Ry. Co. 30, 194, 
 
 197, 398 
 Stevens v. Boxford, 43 
 V. Whistler, 224 
 Stevenson v. Chicago, &c. Ry. Co. 43 
 Stewart v. Alcorn, 264 
 
 V. Burlington, &c. Ry. Co. 
 
 23s 
 V. Chicago, &c. Ry. Co. 230 
 V. Davis, 275 
 V. International, &c. Ry. Co. 
 
 172 
 V. Ripon, 398 
 Stickney v. Maidstone, 43 
 V. Salem, 266, 289 
 Stiles V. Geesey, 26, 36, 60, 81 
 Stillson V. Hannibal, &c. Ry. Co. 132, 
 
 137, 222 
 Stinson v. Gardner, 266, 289, 290 
 Stock V. Wood, 279, 289, 426 
 Stoddard v. St. Louis, &c. Ry. Co. 333, 
 
 352 
 Stokes V. Saltonstall, 22, 43, 1 54, 1 58 
 Stone V. Jackson, 54, 287 
 Stoner v. Penn. Co. 1 56, 302 
 
 V. Shugart, 229 
 Storey v. Dubuque St. Ry. Co. 1 5 
 Story V. Eliot, 271 
 
 Stout V. Indianapolis, &c. Ry. Co. 199 
 V. Sioux City, &c. Ry. Co. 214, 
 21S 
 Strahlendorf V. Rosenthal, 367 
 Stratton v. Central, &c. St. Ry. Co. 83 
 Straus v. Kansas, &c. Ry. Co. 61 
 Street et. ux. v. Inhabitants of Hol- 
 
 yoke, 254, 284 
 Streett v. Laumier, 49, 268 
 Strong V. Placerville Ry. Co. 21, 22 
 
 V. Sacramento, &c. Ry. Co. 15, 
 20, 203 
 Stuart V. Machias Port, 269, 390, 391 
 
 Stucke V. Milwauke, &c. Ry. Co. 6i 
 225 ' 
 
 Stubley v. London Ry. Co. 192, 202 
 Studwell V. Ritch, 234 
 Sturtevant v. Merrill, 224 
 Sullivan v. India Manufacturing Co, 
 3S4, 360, 362, 363, 371 
 V. Louisville Bridge Co. i; 
 20, 28, 325, 3SI, 367, 371 
 V. Penn. Ry. Co. 225 
 V. Phila. &c. Ry. Co. 106 
 V. Toledo, &c. Ry. Co. 320 
 V. Waters, 56, 219, 263 
 Summerhays v. Kansas, &c. Ry. Co. 
 
 320, 340 
 Summers v. Crescent City Ry. Co. 308 
 Summersell v. Fish, 330 
 Sutton V. New York, &c. Ry. Co. 219, 
 220, 223 
 v.Wauwatosa, 53,187,189, 276, 
 458 
 Suydam v. Grand St. Ry. Co. 299, 441 
 
 V. Moore, 235 
 Svenson v. Atlantic Steamship Co. 
 
 344. 345 
 Swainson v. Northeastern Ry. Co. 345, 
 
 375 
 Swan v. Broome, 270, 271 
 Sweeney v. Boston, &:c. Ry. Co. 218, 
 365 
 V. Old Colony, &c. Ry. Co. 
 
 55, 171, 190, 199. 213, 
 
 263 
 Swigert v. Hannibal, &c. Ry. Co. 60, 
 
 156 
 Swindler v. Hilliard, 184 
 Swoboda v. Ward, 362 
 Sword V. Cameron, 386, 388 
 Sykes v. Pawlet, 262, 266 
 
 Taber v. Delaware, &c. Ry. Co. 172 
 
 Tabor v. Missouri, &c. Ry. Co. 203 
 
 Talmadge v. Rensselaer, &c. Ry. Co. 
 238 
 
 Tanner v. Louisville, &c. Ry. Co. 69 
 
 Tarrant v. Webb, 317, 358 
 
 Tarwater v. Hannibal, &c. Ry. Co. 
 229 
 
 Tatham v. Lewis, 407 
 
 Taylor v. Grand Trunk Ry. Co. 1 54 
 V. Humphreys, 275 
 v. Peckham, 253, 263, 287 
 V. Western Pacific Ry. Co. 
 
 347 
 V. Whitehead, 264 
 Teipel v. Hilsendegen, 426, 438, 448 
 
xliv 
 
 TABLE OF CASES. 
 
 Telfer v. Northern, &c. Ry. Co. 35, 37, 
 
 65, 192, 198, 211 
 Templeton v. Montpelier, 257, 258 
 Terre Haute, &c. Ry. Co. v. Augus- 
 tus, 235 
 V. Buck, 25, 34, 172, 173, 302 
 V. Clark, 192 
 V. Graham, 15, 54, 204, 208,211, 
 
 218 
 V. McMurray, 348 
 V. Smith, 238. 
 Terry V. New York, &c. Ry. Co. 225, 
 
 233. 237 
 Texas, &c. Ry. Co. v. Anderson, 34 
 V. Carlton, 367 
 V. Chapman, 194 
 V. Herbeck, 452, 458 
 V. McAtee, 365 
 V. Murphy, 156, 302,432 
 V. O'Donnell, 121, 128, 137 
 V. Vallie, 361 
 
 V. Young, 41, 42, 230, 237 
 Thayer v. Arnold, '225 
 
 V. St. Louis, &c. Ry. Co. 329, 
 
 351 
 Thetis, The, 296 
 Thirteenth St., &c. Ry. Co. v. Bou- 
 
 drou, 25, 38, 304, 305 
 Thomas v. Delaware, &c. Ry. Co. 
 203 
 V. Kenyon, 73 
 Thomas v. Mayor, &c. 40, 258, 283 
 
 T. Winchester,' 34, 314. 
 Thompkins v. Clay St., &c. Ry. Co. 299 
 V. Kanawha Board, 25, 
 452, 458 
 Thompson v. Bridgewater, 256, 400 
 
 V. Central, &c. Ry. Co. 96, 
 
 379. 431 
 V. Chicago, &c. Ry. Co. 361 
 V. Hermann, 48 
 T. New Orleans, &c. Ry. 
 
 Co. 175 
 V. North Mo. Ry. Co. 431. 
 V. Steiger, 221 
 Thorogoodv. Bryan, 65, 108, 109, no, 
 III, 112, 113, 114, 115, 116, 118, 
 
 139 
 Thorp V. Brookfield, 390 
 Thorpe v. New York, &c. Ry. Co. 314 
 Thurberv. Harlem, &c. Ry. Co. 124 
 Tiemey v. Minnesota, &c. Ry. Co. 
 
 320 
 Tighe V. Lowell, 289 
 TiTlett V. Ward, 224 
 Tilbck V. Webb, 275 
 Tilton V. Hamilton Ins. Co. 400 
 Timmons v. Ohio, &c. Ry. Co. 60 
 
 Tindley v. City of Salem, 269, 417 
 Titcomb v. Fitchburg Ry. Co. 268 
 Titus V. Inhabitants of Northbridge, 
 
 255, 269 
 Tobin V. Portland, &c. Ry. Co. 190 
 Todd V. City of Troy, 282 
 Todd V. Old Colony, &c. Ry. Co. 154, 
 
 165, 176 
 Toledo V. Cone, 332 
 Toledo, &c. Ry. Co. v. Asbury, 352, 
 
 365- 370 
 
 V. Baddeley, 175 
 
 V. Barlow, 229 
 
 V. Beggs, 51 
 
 V. Bevin, 427 
 
 V. Brannagan, 427 
 
 V. Bray,' 229 
 
 V. Brooks, 51 
 
 V. Cory, 235 
 
 V. Crane, 235 
 
 V. Eddy, 372 
 
 V. Eder, 235 
 
 V. Ferg^sson, 230 
 
 V. Fredericks, 366 
 
 V. Goddard, 20, 35, 194 
 
 V. Grabk, 83, 89, 121, 125 
 
 V. Grush, 190 
 
 V. Howell, 236 
 
 T. Ingraham, 229, 331 
 
 V. Johnson, 228 
 
 V. Jones, 198 
 
 V. McGinhis, 83, 227, 230 
 
 V. Maxfield, 246 
 
 V. Moore, 65, 353 
 
 V. O'Connor, 83, 327 
 
 V. Owen, 236 
 
 V. Pease, 237 
 
 V. Pindar, 63, 83, 246, 249 
 
 V. Riley, 196, 204, 393 
 
 V. Shuckman, 195 
 
 V. Spencer, 83 
 
 V. Thomas, 263 
 
 V. Wand, 355 
 Toll Bridge v. Langrell, 263 
 Tolman v. Syracuse, &c. Ry. Co. 438, 
 
 441, 446 ■ 
 Tonawanda Ry. Co. v. Munger, 6, 7, 
 
 26, 66, 69, 225, 226, 231, 233, 236 
 Toomey v. London, &c. Ry. Co. 457 
 Totten V. Phipps, 56 
 Towanda Coal Co. v. Heeman, 297 
 Tower v. Providence, &c. Ry. Co. 225, 
 
 226, 242 
 
 V. Utica, &c. Ry.Co. 185 
 Towlerv. Baltimore, &c. Ry. Co. 25, 
 
 38,72 
 Town of Albion v. Hetrick, 39, 40, 106, 
 
 115,257,258 
 
TABLE OF CASES. 
 
 xlv 
 
 Town of Mount Vernon v. Dusouchett, 
 
 258, 265, 426, 427 
 Town of Salem v. GoUer, 69 
 Towne v. Nashua, &c. Ry. Co. 227 
 
 V. Nashville, &c. Ry. Co. 225. 
 Townley v. Chicago, &c. Ry. Co. 217 
 Towns V. Cheshire, &c. Ry. Co. 242. 
 Townsend v. Wathen, 132, 135, 213 
 Tracy v. Troy, &c. Ry. Co. 235, 236 
 Transfer Co. v. Kelly, 106 
 Trout V. Virginia, &c. Ry. Co. 228, 230, 
 
 232, 239 
 Trow V. Vermont, &c. Ry. Co. 17, 26, 
 
 60, 197, 224, 233, 235, 238, 242, 
 
 447, 452. 45§ 
 Troxler v. Richmond, &c. Ry. Co. 250 
 Troy, &c. Ins. Co. v. Carpenter, 401 
 True V. Plumley, 270 
 Tucker v. Chaplin, 65, 139 
 
 V. Henniker, 269 
 Tuel V. Watson, 314 
 TufTv. Warman, 13, 15, 25, 26, 28, 37, 
 
 60,61, no, 135 
 Tully V. Fitchburg Ry. Co. 192 
 Tunney v. Midland, &c. Ry. Co. 330, 
 
 343 
 Turberville v. Stampe, 314 
 Turner v. Buchanan, 40, 43, 44, 199 
 
 V. Holtzroan, 267 
 Tuttle V. Chicago, &c. Ry. Co. 351 
 
 V. Farmington, 269 
 Twigg V. Ryland, 431 . 
 Twogood V. Mayor, &c. 283 
 Twomley v. Central Park, &c. Ry. Co. 
 
 43, 44, 45 
 Tyler v. New York, &c. Ry. Co. 452, 
 
 458 
 Tyson v. North Alabama, &c. Ry. Co. 
 
 3S7. 3S9 
 
 Umbach v. Lake Shore, &c. Ry. Co. 
 
 365, 370 
 Underwood v. Waldron, 60 
 Union Pacific Ry. Co. v. Hand, 154 
 V. Harris, 384 
 V. Nichols, 177 
 
 V. Rollins, 16, 31, 87, 90, 91, 226, 
 452 
 Union Steamship Co. v. New York, 
 
 &c. Steamship Co. 407 
 Union Trust Co. v. Thomason, 320 
 
 Vale V. Bliss, 254 
 
 Valtez V. Ohio, &c. Ry. Co. 330, 340 
 Vandegrift v. Rediker, 69, 225 
 Vanderbeck v. Hendry, 148 
 
 Vandergrift v. Delaware, &c. Ry. Co. 
 
 225 
 Vanderkar v. Rensselaer, &c. Ry. Co. 
 
 236 
 Vanderplank v. Miller, 20,35, '09, 112, 
 
 119,407 
 Van Horn v. Burlington, &c. Ry. Co. 
 
 229, 231, 238 
 Van Riper v. Van Riper, 270 
 Vamey v. Manchester, 38, 262, 289, 
 
 291 
 Vaughan v. TafF Vale Ry. Co. 243, 
 
 244 
 Vaux V. Sheffer, 405 
 Vennall v. Garner, 36, 41, 132 . 
 Veerhusen v. Chicago, &c. Ry. Co. 235 
 Vick V. New York, &c. Ry. Co. 341, 
 
 343 
 Vicksburg v. Hennessy, 257, 426 
 Vicksburg, &c. Ry. Co. v. Hart, 15, 156 
 
 V. Patton, 227, 229, 231, 234 
 Victory v. Baker, 263 
 Vinton v. Middlesex, &c. Ry. Co. 298 
 Virginia, &c. Ry.Co. v. Sayres, 184 
 Vogel V. Mayor, &c. of New York, 314 
 Vosburgh v. Lake Shore, &c. Ry. Co. 
 
 351, 368,374 
 V. Moak, 266 
 Vose V. London, &c. Ry. Co. 357 
 
 Wabash, &c. Canal Co. v. Mayer, 427, 
 Wabash, &c. Ry. Co. v. Century Trust 
 Co. 431 
 T. Elliott, 452, 454, 458 
 V. Henks, 83 
 V. Jones, 89 
 V. Peyton, 347 
 V. Rector, 297 
 
 V. Shacklet, in, 11 J, 116,452, 
 458 
 Wagner v. Bissell, 229 
 Waite V. Hundred of Stoke, 270 
 
 V. London, &c. Ry. Co. 109, 
 no, ni, 130, 131, 132, 146 
 Wakefield v. Railroad Co. 197 
 Waldron v. Portland, &c. Ry. Co. 226 
 V. Rensselaer, &c. Ry. Co. 240 
 Walker v. Bowling, 331, 333 
 V. Herron, 230, 432 
 T. Westfield, 447 
 V. York, &c. Ry. Co. 180 
 Wallace v. Cannon, 51 
 
 V. Merrimack, &c. Nav. Co. 50 
 
 S3. 274 
 Waller v. Southeastern Ry. Co. 340, 
 
 342 
 Walsh V. Miss. Trans. Co. 15, 25, 26, 
 27 
 
xlvi 
 
 TABLE OF CASES. 
 
 Walsh V. Oregon, &c. Ry. Co. 23, 426, 
 
 452. 454, 455, 458 
 V. Peet Valve Manfg. Co. 351, 
 
 367 
 V. Virginia, &c. Ry. Co. 230 
 Walters V. Chicago, &c. Ry. Co. 128, 
 
 138, 139 
 Walton V. St. Louis, &c. Ry. Co. 236 
 Wanless v. Northeastern Ry. Co. 199 
 Warburton v. Great Western Ry. Co. 
 
 347 
 Ward V. Central Park, &c. Ry. Co. 
 
 3°5 
 V. Milwaukee, &c. Ry. Co. 20, 
 22, 246 
 Warden v. Old Colony, &c. Ry. Co. 
 
 364 
 Wardrop-Sims, The, 403 
 Ware v. Barataria, &c. Canal Co. 314 
 Warner v. Erie Ry. Co. 349, 356, 453 
 V. Holyoke, 262 
 V. New York, &c. Ry- C0.441, 
 446 
 Warren v. Fitchburg Ry. Co. 199 
 
 V. Keokuk, &c. Ry. Co. 237, 
 238 
 Washburn v. Nashville, &c. Ry. Co. 
 160, 332 
 V, Tracy, 20, 29, 63, 294 
 Washington and the Gregory, The, 
 
 "5 
 Washington v. Baltimore, &c. Ry. Co. 
 
 227, 232 
 Wasmer v. Delaware, &c. Ry. Co. 48, 
 
 198, 260, 267 
 Waterbury v. New York, &c. Ry. Co. 
 
 154, 163, 176 
 Waters v. Merchants' Ins. Co. 400 
 v. Moss, 229 
 V. Wing, 431 
 Watkins v. Reddin, 268 
 Watson V. Northern, &c. Ry. Co. 160 
 Way V. Foster, 50 
 
 V. Illinois, &c. Ry. Co. 351, 426, 
 
 438 
 Wayde v. Lady Carr, 293, 294 
 Wayne Co. Turnpike Co. v. Berry, 427 
 Webb V. Portland, &c. Ry. Co. 192 
 
 V. Rome, &c. Ry. Co. 245, 250 
 Webber v. Closson, 224 
 Weber v. New York, &c. Ry. Co. 193 
 Webster v. Hudson River Ry. Co. 1 1 5 
 Wedgewood v. Chicago, &c. Ry. Co. 
 
 352, 365 
 Weed V. Balston Spa, 40 
 Weeks v. New York, &c. Ry. Co. 185, 
 
 296 
 
 Weger v. Pennsylvania R. R. Co. 330 
 Weiss V. Pennsylvania R. R. Co. 194, 
 
 431 
 Welch V. Pullman, &c. Car Co. 185, 
 416 
 V. Wesson, 34, 35, 49, 5°, 266, 
 269 
 Wells V. Beal. 226 
 
 V. Burlington, &c. Ry. Co. 364 
 V. Howell, 263 
 
 V. New York, &c. Ry. Co. 60, 
 182 
 Welsch V. Hannibal, &c. Ry. Co. 197 
 Wendell v. Baxter, 190 
 
 V. New York, &c. Ry. Co. 193 
 Wenzlick v. McCotter, 284 
 Werle v. Long Island, &c. Ry. Co. 305 
 Wesley Coal Co. v. Herler, 43 
 West V. Martin, 27 
 Westchester, &c. Ry. Co. v. McElwee, 
 
 454 
 Western, &c. Ry. Co. v. Bishop, 16, 
 
 354 
 v. Johnson, 371 
 v. Stanley, 169 
 Wegtem Union Telegraph Co. v. Blan- 
 chard, 403 
 V. Reynolds, 403 
 Weston V. Elevated Ry. Co. 154, 175, 
 
 257,284 
 Wetherley v. Regent s Canal Co. 1 5, 
 
 26, 36, 139 ., 
 Wettor v. Dunk, 106 
 Weymire v. Wolfe, 25, 54, 205, 211, 
 
 390. 394, 397 ^ „ 
 
 Whaalen v. Mad River Ry. Co. 321, 
 
 331, 340, 342 
 Whalen v. Centenary Church, 331, 333 
 V. St. Louis, &c. Ry. Co. 25, 
 26, 191, 396 
 Whatman v. Pearson, 222 
 Wheeler v. Erie Ry. Co. 240 
 v. Rowell, 224 
 v. Wason Manfg. Co. 351 
 v. Westport, 22, 40, 261 
 V. Worcester, 115 
 Wheelock v. Boston, &c. Ry. Co. 194, 
 
 199 
 Wheelwright v. Boston, &c. Ry Co. 
 
 154, 192,426 
 Whipple v. West Phila. &c. St. Ry. Co. 
 
 307" 
 Whirley v. Whiteman, 20, 54, 68, 75, 
 
 97,137,148,213,327,328,452 
 Whitbeck v. Dubuque, &c. Ry. Co. 
 
 226, 229 
 Whitcomb v. Gilmap, 189, 276 
 
TABLE OF CASES. 
 
 xlvii 
 
 White V. Concord, &c. Ry. Co. 228, 
 
 239, 431 
 V. France, 56 
 V. Lang, 274 
 V. Phillipston, 376 
 Winissimmet, 295 
 Whitney v. Maine, &c. Ry. Co. 193 
 Whittaker v. Manchester, &c. Ry. Co. 
 172 
 V. West Boylston, 284 
 Whittier v. Chicago, &c. Ry. Co. 235, 
 
 238 
 Wiggett V. Fox, 329, 346, 375 
 Wigmore v. Jay, 65, 317, 329 
 Wilcox V. Rome,&c. Ry. Co. 192, 194, 
 
 196, 220 
 Wilder v. Maine, &c. Ry. Co. 224, 231, 
 
 234, 242, 243 
 Wilds V. Hudson River Ry. Co. 20, 26, 
 31, 35, 60, 80, 139, 193, 223, 441, 
 
 445 
 Willetts V. Buffalo, &c. Ry. Co. 65, 
 
 121, 210 
 Wilkins v. Earl, 185 
 Wilkinson v. State, 276 
 Willard v. Pinard, 36 
 Williams v. Churchill, 361 
 
 V. Clinton, 20, 27 
 
 V. Grealy, 279 
 
 V. Holland, 294 
 
 V. Iowa, &c. Ry. Co. 364 
 
 V. Michigan, &c. Ry. Co. 69, 
 225, 226, 231, 235 
 
 V. Moray, 420, 427 
 
 V. New Albany, &c. Ry. Co. 
 225, 23s 
 
 V. Richards, 278 
 
 V. Safford, 264 
 
 V. Texas, &c. Ry. Co. 138 
 
 V. Vanderbilt, 25 
 Willis V. Long Island, &c. Ry. Co. 158, 
 
 ,159. 307 
 Willoughby v. Horridge, 294 
 Wills V. Lynn, &c. Ry. Co. 39, 305 
 
 V. Walters, 234 
 Wilson V. Brett, 66, 78 
 
 V. Charlestown, 192, 258, 283 
 V. Chesapeake, &c. Ry. Co. 
 
 18s 
 V. Cunningham, 22 
 V. Hamilton, 295 
 V. Madison, &c. Ry. Co. 331, 
 
 340, 341 
 V. Merry, 317, 322, 331, 385 
 V. Northern Pacific Ry. C0.43, 
 
 44. 158 
 V. Trafalgar, &c. Co. 257, 427 
 
 Wilson V. Willimantic, &c. Co. 332, 
 
 359, 369 
 V. Wilmington, &c. Ry. Co. 
 
 230 
 Wilton V. Middlesex Ry. Co. 176, 309 
 Winchester v. Case, 89 
 Winn V. City of Lowell, 279, 398 
 Winship v. Enfield, 256, 268, 269, 
 
 432 
 Witherell v. St. Paul, &c. Ry. Co. 225 
 Witherley V. Regent's Canal Co. 15,26, 
 
 36, 139 
 Wohlfahrt v. Beckert, 40, 409 
 Wood V. Andes, 397 
 
 V. Fenwick, 360 
 V. Jones, 27, 37, 60 
 V. Luscombe, 294 
 V. The School District, 149, 
 213 
 Woodley v. Metropolitan, &c. Ry. Co. 
 
 317. 345, 372 
 Woodman v. Hubbard, 50 
 Woodworth V. St. Paul, &c. Ry. Co. 
 
 352 
 Woods V. Devin, 185 
 Woolf V. Beard, 36, 279 
 Woolheather v. Risley, 397 
 WooUey v. Scovell, 43 
 Woolson V. Northern, &c. Ry. Co. 238, 
 
 242 
 Wonder v. Baltimore, &c. Ry. Co. 329, 
 
 342, 351. 354 
 Worcester v. Essex Merrimac Bndge 
 
 Co. 60. 
 Wright V. Brown, 60 
 
 V. Great Northern Ry. Co. 43, 
 
 199 
 V. Illinois, &c. Co. 73, 75 
 V. London, &c. Ry. Co. 348, 
 
 349 
 V. Maiden, &c. Ry. Co. 125, 
 
 138, 452 
 V. New York, &c. Ry. Co. 340, 
 
 351, 367. 371 , 
 
 V. Rawson. 311, 361 
 
 V. Roxburgh, 375 
 Wrinn v. Jones, 53 
 Wyandotte v. White, 22 
 Wyckoff V. The Ferry Co. 295 
 Wyld V. Pickford, 180 
 Wylde V. Northern, &c. Ry. Co. 307 
 Wyman v.' Penobscot, &c. Ry. Co. 224, 
 
 234 
 Wynn v. AUard, 69, 294, 391, 392, 397 
 
 Yarnall v. St. Louis, &c. Ry. Co. 204, 
 205, 394 
 
xlviii 
 
 TABLE OF CASES. 
 
 Yeomans v. Contra Costa, &c. Co. 154, 
 178 
 
 Yerkes v. Sabin, 295 
 
 Yonoski v. State, 189, 276 
 
 York V. Davies, 234 
 
 York, &c. Ry. Co. v. Crisp, 180 
 
 Young V. , 264 
 
 V. Charleston, 255 
 
 V. Detroit, &c. Ry. Co. 202 
 
 V. Harvey, 263,420 
 
 Young V. New York, &c. Ry. Co. 344 
 
 Zebra, The, 407 
 Zeigler v. Day, 329, 349 
 
 V. Railroad Co. 196 
 Zemp V. Wilmington, &c. Ry. Co. 1 58, 
 
 307, 433 
 Zimmerman v. Hannibal, &c. Ry. Co. 
 
 15,27,60,194,204 
 Zoebisch v. Tarbell, 54, 287 
 Zulke V. Wing, 376 
 
CONTRIBUTORY NEGLIGENCE. 
 
 CHAPTER I. 
 
 INTRODUCTORY.— OF NEGLIGENCE AND OF CONTRIBUTORV 
 NEGLIGENCE GENERALLY. 
 
 1. Origin of the law of Negligence. 
 
 2. Negligence defined. 
 
 3. Contributory Negligence defined. 
 
 4. Butterfield v. Forrester. 
 
 § 5. Davies v. Mann. 
 6. Reasons for the rule of Contributory 
 Negligence. 
 
 § I. Origin of the law of Negligence. — Our Anglo- 
 American law of Negligence, including, as of course, 
 that of Contributory Negligence, has come down to us, 
 in ordinary generation, from the civil law of imperial 
 Rome. It is a part of that great debt which the common 
 law owes to the classical and the scholastic jurisprudence. 
 No corpus juris, adequate to the social and business ne- 
 cessities of an enlightened and active people, could omit 
 such titles as Bailment and Negligence. They were, 
 therefore, inevitably, in the very nature of things, and by 
 reason of the civilization, the wealth, and the commercial 
 enterprise of Rome under the empire, included in the 
 consummate system of jurispfudence which the lawyers 
 and the law-makers of that age originated and developed. 
 The underlying principles and the practical details of the 
 law in this behalf were fully comprehended and worked 
 out by the jurisconsults, as part of a body of law suited 
 very exactly to the wants of a people, that, in periods of 
 high civilization, controlled the business of the globe. 
 
2 INTRODUCTORY. [§ I. 
 
 This classical jurisprudence, as is well understood, falling 
 into the hands of the scholastic jurists of a subsequent 
 era, was, by them, loaded and hampered with all the bela- 
 bored judicial subtleties and idealistic fictions of mediae- 
 valism, and, thus perverted and distorted, first presented 
 itself to those earlier English jurists, who, in the seven- 
 teenth and eighteenth centuries, first began seriously to 
 study the civil law, with a view to adapting it, in some 
 degree, to the growing social and commercial necessities 
 of Englishmen. Accordingly, Lord Holt, in the case of 
 Coggs V. Bernard,^ turning to the Roman law for enlight- 
 enment, and relying for his authority, when he found no 
 precedents in the English reports,* upon the scholastic 
 jurists of the middle ages, engrafted, in his famous opin- 
 ion in this case, upon the stout stem of the English com- 
 mon law a much bescholiazed exotic from the code of 
 Justinian. In this famous case was laid the foundation of 
 the modern English law of Bailment, a subject with 
 which the law of Negligence is so intimately associated 
 that we are accustomed to regard Lord Holt's learned and 
 exhaustive opinion herein, as the leading authority, in a 
 case of novel impression, as well upon the one title as the 
 other. Sir William Jones' treatise on Bailments, wherein 
 Negligence is a principal topic, is confessedly based upon 
 the learning in Coggs v. Bernard, and Mr. Justice Story, 
 in his works upon Bailments and Agency, the treatise of 
 Gains not having been discovered when he wrote, fol- 
 lowed these two eminent authorities. Chancellor Kent 
 also added the sanction of his great name to the same 
 
 ' 2 Anne, A. D. 1703 ; 2 Ld. Raym. pie, irrespective of any modem or for- 
 
 909; s. c. Smith's Leading Cases, eign innovation, but Lord Holt ex- 
 
 8th edition, 369. pressly disregards that authority. It 
 
 I have not overlooked Southcote's is completely overthrown, and the law 
 
 Case (43 Eliz. A. D. 1601 ; 4 Rep. may fairly be said to date from Coggs 
 
 83*; Cro.Eliz 815), which presents v. Bernard, vide Holmes' Common 
 
 the older Enghsh law pure and sim- Law, 196 
 
§ 2.] INTRODUCTORY. j 
 
 general exposition of the law. So it has come to pass 
 that our text writers upon this subject have, for the most 
 part, set forth the law essentially from the standpoint of 
 the jurists or scholiasts of the middle age. The courts, 
 on the other hand, finding this artificial and visionary ju- 
 risprudence unsuited to the necessities of our time, have 
 inclined more and more away from the scholastic formu- 
 las, accepting the learning, on the authority of the ju- 
 rists, as theofetically sound, but refusing judicially to im- 
 pose upon suitors the burdens, inconveniences, and even 
 absurdities they involve. " The consequence was," says 
 Dr. Wharton, in the preface to his learned work upon 
 Negligence, " that our adjudications have been on one 
 plane of jurisprudence, and our principles on another 
 plane." The result of this contest between scholastic 
 theory and modem common sense has been somewhat re- 
 markable. The courts, after starting out, from Coggs v. 
 Bernard, upon the theory of the middle ages, have, more 
 or less unconsciously, constructed for us, in flat defiance 
 of authority, a jurisprudence upon this topic that very 
 nearly assimilates itself to the jurisprudence of Rome 
 when it was the money power and the business power of 
 the whole earth. It is the highest possible warrant to the 
 soundness and abstract correctness of our present law, as 
 well as to its inherent justness and propriety, that the so- 
 cial and commercial necessities of our age have developed 
 in the courts, in spite of counter theories, a body of law 
 as to this matter singularly like that worked out by the 
 jurists of the most richly civilized and the most commer- 
 cial era of antiquity. It is as though ^Eacus and Rhada- 
 . manthus had endorsed our doctrine. 
 
 § 2. Negligence defined. — The theorists, the text 
 writers, and the judges have alike stumbled over the defi- 
 nition of this term, and nothing generally satisfactory has 
 
INTRODUCTORY. 
 
 [§ 
 
 ever been proposed, from which it may perhaps be safe 
 to conclude that it is impossible to define it with such 
 scientific accuracy as to embrace and conclude all the pos- 
 sibilities. Is it not time to concede the point in law lit- 
 erature, notwithstanding the more or less imperious de- 
 mand upon every law writer for comprehensive, terse, and 
 infallible definitions, that legal principles and legal terms 
 in general are not capable of definition after the fashion 
 of the exact sciences ; that law is scarcely a science at all 
 in the scientific sense, and that the attempt to express its 
 principles in definitions or in rules of mathematical pre- 
 cision misleads oftener than it enlightens ? As Dr. John- 
 son once said, you may walk in a straight line on a 
 desert, but you cannot walk in a straight line in Cheap- 
 side. The great jurists have not been great definers in 
 the mathematical way, and he who is glibbest at such 
 legal definition is perhaps one who knows a little law 
 wrong. 
 
 In the High Court of Chancery the term " fraud " is not 
 defined.^ By the older lawyers it seems to have been re- 
 garded as peculiar in this respect, but are not the reasons 
 they assign for the failure to define it for the most part co- 
 gent against defining any comprehensive legal term or prin- 
 ciple in the sense in which there is a modern tendency to 
 expect and demand definition ? Hardly a better illustra- 
 tion of the futility and inutility of legal definitions of this 
 character is at hand than those proposed by various 
 writers and judges of the term " negligence," and the 
 strictures of each of them upon the definitions of the oth- 
 ers. That by Baron Alderson is often quoted with ap- 
 proval. " Negligence," says that discriminating jurist, "is. 
 the omission to do something which a reasonable man, 
 
 'Parks', History of Chancery, 508; terfield v. Janssen, i Atk. %Vi (by 
 Lawson s Snells' Equity, 383 ; Ches- Lord Hardwicke). jj w 
 
§2.] 
 
 INTRODUCTORY. 
 
 guided upon those considerations which ordinarily regu- 
 late the conduct of human affairs, would do, or doing 
 something which a prudent and reasonable man would 
 not do."^ This is, it is submitted, no more a definition of 
 negligence than of the opium habit, or the excessive use 
 of intoxicating liquors, or gambling or reckless specula- 
 tion, or forty other things. 
 
 Mr. John Austin's definition is this: "The term 
 ' negligent ' applies exclusively to injurious omissions : 
 to breaches by omission of positive duties. The party 
 omits an act to which he is obliged (in the sense of the 
 Roman lawyers). He performs not an act to which 
 he is obliged, because the act and the obligation are ab- 
 sent from his mind. An omission," he says, " (taking 
 the word in its larger signification,) is the not doing a 
 given act without adverting (at the time) to the act 
 which is not done." * This, judging from the definition, 
 is not what Baron Alderson was trying to set oflF by 
 metes and bounds ; neither is it what Dr. Wharton un- 
 derstands negligence to be. He proposes this : " Neg- 
 ligence in its civil relations is such an inadvertent im- 
 perfection, by a responsible human agent, in the dis- 
 charge of a legal duty, as immediately produces in an 
 ordinary and natural sequence, a damage to another. 
 The inadvertency, or want of due consideration of duty, 
 is the injuria, on which, when naturally followed by the 
 damnum, the suit is based."' Messrs. Shearman and 
 Redfield do no't, I believe, attempt a definition in terms. 
 The three already given are some evidence that a defi- 
 nition of any other value than as an illustration of 
 some phase or phases of the subject is impossible. 
 
 ' Blyth V. Birmingham Water " i Austin's Lectures on Jurispru- 
 
 Works Co., II Exch. 784; S. C. 2 dence, 3d London ed. 439. 
 
 Jur. (N. S.) 333 ; 25 L. J. (Exch.) ' Wharton on Negligence, § 3. 
 212. 
 
6 INTRODUCTORY. [§ 2. 
 
 From a general view of the subject it may be con- 
 cluded that legal negligence consists for the most part 
 in the breach, or omission, of a legal duty/ which may 
 be either unintentional, as is usually the case, or inten- 
 tional, as is sometimes the case. This duty may be 
 either one imposed by the rules of civil society, in which 
 case the violation of it is a tort, or one voluntarily as- 
 sumed by contract, in which the failure is a breach of con- 
 tract. Whence it appears that negligence, in its legal as- 
 pect, is of two distinct sorts, the one springing out of re- 
 lations resting in contract, and the other not. In the one 
 case there is an action sounding in tort, and in the other 
 there is an action for breach of contract. It is clear that 
 the same definitions and the same rules of law cannot 
 equally apply to each, and that in consequence it is al- 
 ways necessary to consider negligence in this dual as- 
 pect. While accurate and scientific knowledge, cle^r 
 thinking, and precise expression as to the principles of law 
 governing this subject are possible, to define the term 
 " negligence " in its legal sense — in its application to all 
 human interests as they may become subjects of litiga- 
 tion, or to reduce the law of negligence to rules of 
 mathematical completeness and precision, as one writes 
 magic squares — is hopelessly out of the question. There 
 are theorists among law writers who, considering that the 
 story of Robinson Crusoe has been very cleverly retold 
 in words of one syllable, would apply a somewhat analo- 
 gous method of revision and simplification to the law 
 books. Shall we not, however, rather rest with a presen- 
 tation of the law as it really is, in as luminous and orderly 
 a way as the subject reasonably admits, without essaying 
 
 'Shear. & Redf. on Neg., % 2 ei nio, 255; s. C. 49 Am. Dec. 239; 
 
 se^.; Thompson on Neg., preface; Danner v. South Carolina R. R., 4 
 
 Wharton on Neg., § 3 f/ seg.; 3 Puf- Rich. (Law), 329; s. C. 55 Am. Dec. 
 
 fendorf 's Law of Nations, chap. I ; 678 ; Baltimore, &c., R. R. v. Wood- 
 
 Tonawanda R. R. v. Hunger, 5 De- ruff, 4 Md. 242 ; S. C. 59 Am. Dec. 72. 
 
§ 3-] INTRODUCTORY. 7 
 
 a method and a simplicity which are not in the nature of 
 things ? 
 
 § 3. Contributory Negligence defined. — Between neg- 
 ligence and contributory negligence there is the differ- 
 ence between genus and species, and it is, accordingly, far 
 easier to state with tolerable precision what contributory 
 negligence is, than to construct a satisfactory definition 
 of the simple term " negligence." In the qualified term 
 we are held more to a definition of the adjective than of 
 the noun. Conceding, then, the unknown quantity, we 
 may proceed to define, or find the value of the coeflficienf 
 in terms of the unknown quantity ; that is to say, in the 
 result we shall express the unknown quantity with the 
 value of its coefficient somewhat determined. I there- 
 fore, employing some such method of definition as this 
 figure suggests, propose the following: Contributory 
 negligence, in its legal signification, is such an act or omis- 
 sion on the part of a plaintiff, amounting to a want of 
 ordinary care, as, concurring or co-operating with the neg- 
 ligent act of the defendant, is a proximate cause or occa- 
 sion of the injury complained of. To constitute contrib- 
 utory negligence there must be a want of ordinary care 
 on the part of the plaintiff, and a proximate connection 
 between that and the injury. Perhaps, besides these two, 
 there are no other necessary elements. Certainly they are 
 the two points of difficulty in the consideration of the 
 question. " Did the plaintiff exercise ordinary care un- 
 der the circumstances ? " "Was there a proximate con- 
 nection between his act or omission and the hurt he com- 
 plains of ? " These are the vital questions when contrib- 
 utory negligence is the issue. The definition proposed 
 is believed to cover fairly all the points involved.^ 
 
 ' Tonawanda R. R. Co. v Hunger, Banner v. South Carolina R. R. Co., 
 5 Denio, 255 ; s. C. 49 Am. Dec. 239 ; 4 Rich. (Law), 329; s. c. 55 Am. Dec. 
 
8 INTRODUCTORY. [§ 4. 
 
 § 4. Butterfield v. Forrester. — ^This is believed to be 
 the earliest reported case in the English law in which the 
 general rule as to contributory negligence is distinctly an- 
 nounced. It was decided by Lord Ellenborough in the 
 Court of King's Bench in 1809,^ and^has ever since been 
 regarded a leading case. It may safely be said that it has 
 been cited with approval as a controlling authority in ev- 
 ery jurisdiction where the common law obtains. The 
 opinion is a model of judicial brevity. It declares the 
 rule, sets forth the reasons for it, and suggests a good illus- 
 tration, within the compass of a dozen lines.^ No case is 
 more often referred to in oral argument, and no case in 
 any branch of the law is more generally received as un- 
 questionably sound. It was an action on the case for ob- 
 structing the highway, by means of which obstruction the 
 plaintiff, who was riding along the road, was thrown from 
 his horse and injured. It appears that the defendant, for 
 the purpose of making some repairs to his house, which 
 was close by the roadside, had put up a pole partly across 
 the street on his side, leaving, however, free^ passage 
 through the street along the other side of the way, and 
 that the plaintijfF, who was riding rapidly through the 
 street, just at nightfall, but before it was dark, not ob- 
 serving the obstruction, rode violently against it, and, be- 
 ing thrown from his horse, was seriously injured. On 
 this state of facts the court directed the jury that, if a 
 person riding with reasonable and ordinary care could 
 have seen and avoided the obstruction, and they were sat- 
 isfied that the plaintiff was riding extremely hard through 
 the street, and without ordinary care, they should find a 
 
 678; Baltimore, &c., R. R. Co. v. * n East, 60. 
 Woodruff, 4 Md. 442; S. C. 59 Am. ' Lord EUenborough's opinion is de- 
 Dec. 72 ; O'Brien V. McGlinchy, 68 livered in exactly one hundred and six- 
 Me. 552 ; Neanow v. Ullech, 46 Wis. teen words. 
 590 ; Harris v. Union Pacific R. R., 4 
 McCrary, 454. 
 
§ 4-] INTRODUCTORV. 9 
 
 verdict for the defendant, which they accordingly did. 
 Upon motion for a new trial, the court say, by Lord El- 
 lenborough, C. J. : "A party is not to cast himself upon 
 an obstruction which has been made by the fault of ano- 
 ther, and avail himself of it, if he do not himself use com- 
 mon and ordinary caution to be in the right In cases of 
 persons riding upon what is considered to be the wrong 
 side of the road, that would not authorize another 
 purposely to ride up against them. One person being 
 in fault will not dispense with another's using ordinary 
 care for himself. Two things must concur to support 
 this action, an obstruction in the road, by the fault of the 
 defendant, and no want of ordinary care to avoid it on 
 the part of the plaintiff." The doctrine of this case, 
 then, plainly is, that, although the defendant may have 
 been guilty of a want of ordinary care, tending to 
 produce the injury complained of, still the plaintiff will 
 not be entitled to recover damages if he could, by the 
 exercise of ordinary care, have avoided the consequences 
 of the defendant's negligence, or, what is the same 
 thing, that he cannot recover when his own negligence 
 proximately contributed to produce the injury of which 
 he complains. This rule not only commends itself to 
 our instinctive sense of justice, since what can be a 
 more reasonable requirement than that a man must 
 take ordinary care of himself, or suffer the consequences, 
 but it is also in harmony with the spirit of the law in 
 other respects, in that it puts every man upon his 
 guard, and suffers him not to take advantage of his 
 own lack of prudence or care, by first running into 
 danger, and then calling upon some one else to recom- 
 pense him in damages for what he suffers. It is a 
 principle of law so consonant with justice and right 
 reason that it can never be overthrown. 
 
10 INTRODUCTORY. [§ 5. 
 
 § 5. Davies v. Mann. — In this case, decided by Lord 
 Abinger in the Court of Exchequer in 1842,^ an entirely 
 different rule is laid down, one which is not only sub- 
 versive of the reasonable rule declared in Butterfield v. 
 Forrester,^ but which practically repudiates the entire 
 doctrine of contributory negligence. It is known some- 
 times as "the donkey case," the facts being that the plaint- 
 iff's donkey, which he Jiad fettered and negligently al- 
 lowed to graze at large upon the highway, was run dowii 
 and killed by the servant of the defendant, driving a 
 wagon through the street. It was conceded that the act 
 of the plaintiff, in leaving his donkey on the highway, so 
 f etted as to prevent his getting out of the way of passing 
 vehicles, was negligent and unlawful,/ but, inasmuch as 
 it appeared that the defendant, by the exercise of ordinary 
 care, might have avoided running over the animal, the 
 plaintiff was held entitled to recover. The clear doctrine 
 of this case is that a plaintiff, although he be guilty of 
 negligence, tending to produce the injury he complains 
 of, may, notwithstanding that, recover damages for the 
 injury, if the defendant could, in spite of such negligence, 
 by the exercise of ordinary care upon his part, have 
 avoided inflicting the injury. Under this rule no account 
 is taken of the plaintiff's negligence. He is not held to 
 the duty of taking even ordinary care of himself. Let 
 him be never so heedless, or stupid, or careless of his 
 safety, if he can only make it appear that his injury might 
 not have happened to him if the defendant had exercised 
 due care, he may, under Davies v. Mann, have his action, 
 and the defendant, in the suit he brings, is held to respon- 
 sibility, not only for the consequence of his own neglect 
 as in Butterfield v. Forrester, but he must pay for the 
 neglect of the plaintiff also. Where both parties have 
 
 ' 10 Mee. & W. 546 ; S. C. 6 Jur. 954; 12 L. J. (Exch.) 10. 
 '■' 1 1 East, 60. 
 
§ 6.] INTRODUCTORY. 1 1 
 
 been guilty of negligence, concurring to produce an in- 
 jury, the doctrine of this case completely exonerates the 
 party who suffers the injury, ignores entirely his contribu- 
 tory negligence, and charges the other party with it all. 
 This is sheer injustice, and it is a striking evidence of the 
 chaotic state of the law upon this subject, that Davies v. 
 Mann is esteemed a leading and authoritative case. We 
 find the judges citing it frequently in the reported cases 
 with approvg^l, as enunciating a sound rule of law, and 
 sometimes side by side with Butterfield v. Forrester, which 
 it flatly contradicts, so that the two cases cited together 
 make nonsense. The doctrine of Butterfield v. Forrester 
 applied to the state of facts upon which Davies v. Manli 
 turns would give a judgment to the defendant. Indeed 
 the donkey case is a good deal clearer case than that of 
 the man riding at sundown through the streets of Derby. 
 If this pernicious and mischief-making authority could 
 be distinctly repudiated, much of the uncertainty and con- 
 fusion in writing and in thinking upon the subject of con- 
 tributory negligence would disappear. It is the doctrine 
 that has made all the trouble. The attempts to reconcile 
 some such rule or theory as this case propounds, with the 
 obvious and natural justice of the matter, have driven the 
 courts into all sorts of vagaries, and the reported cases 
 show an endless floundering and confusion. If the simple 
 and just and rational rule that a plaintiff guilty of con- 
 tributory fault cannot recover be adhered to, and all at- 
 tempts to reconcile that principle with any such rule as 
 that of Davies v. Mann be abandoned and forgotten, the 
 difficulty will be very much at an end. It is submitted 
 that this is the only way to reduce our law in this behalf 
 to an orderly and logical system. 
 
 § 6. The reasons of the rule. — The reasons of the rule 
 which denies relief to a plaintiff" guilty of contributory 
 
12 INTRODUCTORY. [§ 6. 
 
 negligence have been variously stated. The common law 
 refuses to apportion damages which arise from negli- 
 gence. This it does upon considerations of public conveni- 
 ence and public policy, and upon this principle, it is said, 
 depends also the rule which makes the contributory negli- 
 gence of a plaintiff a complete defense. For the same 
 reason, when there is an action in tort, where injury re- 
 sults from the negligence of two or more persons, the 
 sufferer has a full remedy against any one of them, and 
 no contribution can be enforced between the tort feasors. 
 The policy of the law in this respect is founded upon the 
 inability of human tribunals to mete out exact justice. 
 A perfect code would render each man responsible for 
 the unmixed consequences of his own default ; but the 
 common law, in view of the impossibility of assigning all 
 effects to their respective causes, refuses to interfere in 
 those cases where negligence is the issue, at the instance 
 of one whose hands are not free from the stain of con- 
 tributory fault,^ and where accordingly the impossibility 
 of apportioning the damage between the parties does not 
 exist, the rule is held not to apply.* 
 
 It is said again, that the true theory upon which the 
 rule rests is that the defendant is not the cause of the in- 
 jury if the plaintiff's negligence contributes to it ; but this 
 is a very superficial view. If it is meant that the defend- 
 ant is not the sole cause, the argument only goes around 
 in a circle, and if it is meant that the defendant is liable 
 every time he is the sole cause of an injury, it is not true. 
 " The true ground," says Dr. Wharton, " for the doctrine 
 is that, by the interposition of the plaintiflf's independ- 
 
 ' I Am. Law Rev. (N. S.) 770, an § 42, citing Brendell v. Buffalo, &c., 
 
 article by Ernest Howard Crosby, R. R., 27 Barb. 534 (n.); Dascomb 
 
 Esq.; Railroad Co. v. Norton, 24 v. Buffalo, &c., R. R., 27 Id. 221. 
 Penn. St. 469; Heil v. Glanding. 42 ° Needham v. San Francisco, &c., 
 
 Penn. St. 493 ; Shear. & Redf. on Neg., R. R., 37 Cal. 409. 
 
§ 6.] INTRODUCTORY. I3 
 
 ent will, the causal connection between the defendant's 
 negligence and the injury is broken." ^ It is also some- 
 times assumed to rest upon the maxim volenti -non fit 
 injuria, but the objection to this position, as well as to 
 Dr. Wharton's definition, is that negligence, in its very- 
 essence, negatives the idea of an exercise of the will. A 
 person whose negligence causes an injury cannot be 
 spoken of with any accuracy of expression as " willing " 
 it. Negligence can only be conceived upon the hypoth- 
 esis that the will, as to the particular condition, is in- 
 active. In my judgment no more satisfactory reason for 
 the rule in question has been assigned than that which 
 assumes it to have been founded upon considerations of 
 public policy. We need not seek for any better reason 
 for a rule of law than that, among all the possible rules ^ 
 that might be adopted, it is plainly the best — that indeed 
 it is the only rule upon the subject for an instant prac- 
 ticable. 
 
 ' Wharton on Neg;, § 300, citing tanto, and divide damages when both 
 
 Tuff w. Warman, 5 C. B. (N. S) 573, were in fault, as in the rusiicum ju- 
 
 585. dictum of the admiralty, or it might 
 
 ' "The State might conceivably throw all loss upon the actor irre- 
 
 make itself a mutual insurance com- spective of fault. The State does none 
 
 pany against accidents, and distribute of these things, however, and the pre- 
 
 the burden of its citizens' mishaps vailing view is that its cumbrous and 
 
 among all its members. There might expensive machinery ought not to be 
 
 be a pension for paralytics, and State set in motion unless some clear bene- 
 
 aid for those who suffered in person fit is to be derived from disturbing 
 
 or estate from tempest or wild beasts, the status quo." Holmes' " Common 
 
 As between individuals it might adopt Law," 96. 
 the mutual insurance principle pro 
 
CHAPTER II. 
 
 THE GENERAL RULE. 
 
 7. General statement of the rule. 
 
 8. Express or implied waiver of a right 
 of action. 
 
 g. What is ordinary care. 
 
 10. What is a proximate cause. 
 
 11. Distinction between causal connec- 
 tion and a plaintiff's negligence. 
 
 (A.) Particular considerations affecting 
 the plaintiff' s right to recover. 
 Plaintiff 's previous knowledge. 
 Plaintiff's failure to anticipate the 
 fault of the defendant. 
 Plaintiff acting erroneously under 
 the impulse of fear produced by the 
 defendant. 
 
 Plaintiff acting erroneously in try- 
 ing to save human life. 
 Plaintiff doing an illegal act. 
 
 12. 
 
 13. 
 
 14. 
 
 15- 
 16. 
 
 17. Plaintiff a trespasser. 
 
 § 18. Plaintiff's prior negligence in con- 
 nection with defendant's subsequent 
 negligence. 
 
 19. Plaintiff's negligence after the ca- 
 tastrophe. 
 
 20. Negligence of the decedent under 
 Lord Campbell's act. 
 
 (B.) Particular considerations affect- 
 ing the defendant's liability. 
 
 21. When the defendant's negligence is 
 gross. 
 
 22. When the defendant's negligence is 
 wilful. 
 
 23. When the defendant by his acts or 
 omissions throws the plaintiff off 
 his guard. 
 
 24. Mitigation and apportionment of 
 damages. 
 
 § 7. General statement of the rule. — Contributory 
 negligence, as we have seen,^ consists, in contemplation 
 of law, in such acts or omissions, on the part of a plaint- 
 iff, amounting to a want of ordinary care, as concurring 
 or co-operating with the negligent acts of the defendant, 
 are a proximate cause, or occasion of the injury com- 
 plained of. It is a general rule, firmly imbedded in the 
 law, and conclusively settled, that such negligence will 
 defeat a recovery. 
 
 Says Black, C. J., in Pennsylvania R. R. Co. v. As- 
 pell :* "It has been a rule of law from time immemorial, 
 and it is not likely to be changed in all time to come, 
 that there can be no recovery for an injury caused by the 
 mutual default of both parties. When it can be shown 
 
 • § 3, supra. 
 
 ' 23 Penn. St. 147 ; S. C. 62 Am. Dec. 323. 
 
§7.] 
 
 THE GENERAL RULE. 
 
 IS 
 
 that it would not have happened except for the culpable 
 negligence of the party injured, concurring with that of 
 the other party, no action can be maintained." From 
 Butterfield v. Forrester,^ to the latest judgments of the 
 appellate courts in every common law jurisdiction, the 
 rule is consistently and uniformly declared.* 
 
 ' II East, 60. 
 
 ' Freer v. Cameron, 4 Rich. (Law), 
 228; s. C. 55 Am. Dec. 663, (and 
 especially Mr. Freeman's scholarly 
 and exhaustive note at page 666); 
 Shear. & Redf. on Neg., g 23 etseq.; 
 Thomp. on Neg., 1146; 'Wharton on 
 Neg., § 300; Saunders on Neg., 55, 
 60 ; Field on Damages, 1 58, 1 59, 1 73, 
 529 ; Bridge v. Grand Junction Ry., 
 3 Mee. & W. 244; Tuff w. Warmap; 5 
 C. B. (N. S.) 573 ; Witherley v. Re- 
 gent's Canal Co., 12 Id. 2; S. C. 3 
 Fost. & Fin. 61 ; 6 L. T. (N. S.) 255 ; 
 Dowell V. Steam Navigation Co., 5 El. 
 & BI. 195; Moak's Underhill on Torts, 
 283, 285 ; 4 Wait's Actions and De- 
 fenses 718, § 2 ; Kennard v. Burton, 
 25 Me. 39 ; S. C. 43 Am. Dec. 249 ; 
 Railroad Co v. Jones, 95 U. S. 439 ; 
 Munger v. Tonawanda R. R., 4 N. Y. 
 349; S. C. 53 Am. Dec. 384 and note; 
 Milton V. Hudson River Steamboat 
 Co., 37 N. Y. 212; Central R. R. v. 
 Letcher, 69 Ala. 106; S. C. 44 Am. 
 Rep. 505 ; Little Rock, &c., R. R. v. 
 Fankhurst, 36 Ark. 371 ; Kline v. 
 Central Pacific R. R., 37 Cal. 400; 
 Colorado, &c., R. R. v. Holmes, 5 
 Colo. 197; Illinois, &c., R. R. v. 
 Hetherington, 83 111. 510; Fleytas v. 
 Ponchartrain R. R. Co., 18 La. Ann. 
 339; S. C. 36 Am. Dec. 658 ; Murray 
 V. Ponchartrain R. R., 31 La. Ann. 
 490; State z/. Manchester, &c., R. R., 
 52 N. H. 528 ; Pennsylvania R. R. v. 
 Goodman, 62 Penn. St., 329; Walsh 
 V. Transportation Co., 52 Mo. 434 ; 
 Zimmerman v. Hannibal, &c., R. R., 
 71 Id. 476 ; Palys v. Erie Ry. Co., 
 30 N. J. Eq., 604 ; Pennsylvania R. 
 R. Co. V. Righter, 42 N. J. Law, 180 ; 
 Morrison v. Cornelius, 63 N. C. 346 ; 
 Murphy w. Deane, loi Mass. 455; S. 
 C. 3 Am. Rep. 390; Richmond, &c., 
 R. R, Co. V. Morris, 31 Gratt. 200 ; 
 
 Id. w. Anderson, 31 Id. 812; Penii- 
 sylvania R. R. Co. v. Sinclair, 62 
 Ind. 301; s. C. 30 Am. Rep. 185 
 (note) ; Simpson v. Hand, 6 Whar- 
 ton (Penn.), 311 ; S. C. 36 Am. Dec. 
 231 ; Steele v. Central R. R. of Iowa, 
 43 Iowa, 109; McKean v. R. R. Co., 
 55 Id. 192; Birge v. Gardner, 19 
 Conn. 507 ; S. C. 50 Am. Dec. 261 ; 
 Salem v. GoUer, 76 Ind. 291 ; Hoehl 
 V. Muscatine, 57 Iowa, 444; Ken- 
 tucky Central R. R. v. Thomas, 79 
 Ky. 160 ; s. C. 42 Am. Rep. 208 ; 
 Bradley v. Andrews, 51 Vt. 530; Erie 
 V. Magill, loi Penn. St. 616; Abend 
 V. Terre Haute, &c., R. R., Sup. Ct., 
 111., Sept. 27, 1884, 19 Cent. L. J. 
 350 ; Jamison v. San Jose, &c., R. 
 R., 55 Cal. 593; Strong v. Sacra- 
 mento, &c., R. R., 6l Id. 326 ; 
 Nehrbas v. Central, &c., R. R., 62 
 Id. 320 ; McCoy v. Philadelphia, &c., 
 R. R., 5 Hous. (Del.) 599; Louis- 
 ville, &:c., R. R. v. Shanks, 94 Ind. 
 598; Terre Haute, &c., R. R. v. 
 Graham, 95 Id. 286; Storey v. Du- 
 buque St. Ry. Co., 51 Iowa, 419; 
 County Com'rs v. Hamilton, 60 Ind. 
 340; Peverly v. Boston, 136 Mass. 
 366 ; S. C. 49 Am. Rep. 37 ; Vicks- 
 burg, &c., R. R. V. Hart, 61 Miss. 
 468; Dudley v. Camden Ferry Co., 
 45 N. J. L. 368 ; Mullen v. Rainear, 
 45 Id. 520; Renneker v. South Car. 
 R. R., 20 S. C. 219; Houston, &c., 
 R. R. V. Richards, 59 Texas, 373; 
 Louisville, &c., R. R. v. Goetz, 79 
 Ky. 442 ; Kentucky Central R. R. v. 
 Lebus, 14 Bush. 518; Sullivan v. 
 Bridge Co., 9 Id. 81 ; Paducah R. R. 
 Co. V. Hoehl, 12 Id. 41; Jacobs v. 
 Louisville, &c., R. R., 10 Id. 263; 
 Louisville, &c., R. R. v. Collins, 2 
 Duv. (Ky.) 114; Id. V. Robinson, 4 
 Bush. 507 ; Martin v. Bishop, 59 
 Wis. 417; Hoth V. Peters, 55 Id. 
 
1 6 THE GENERAL RULE. [§ 8. 
 
 And even in those courts that have invented and tol- 
 erate the doctrine of " comparative negligence," or that 
 follow, in some sort or another, the strange gods that led 
 the fathers astray, in Davies v. Mann,^ et id omne genus, 
 the force and integrity of this rule are equally admitted.' 
 
 It would require far greater judicial hardihood to chal- 
 lenge its soundness than it does to explain it away. 
 
 § 8. Express or implied waiver of a right of ac- 
 tion. — It is held entirely lawful for one, by an express 
 contract, to waive the right of action which he may have 
 against another for damages for an injury occasioned by 
 the negligence of such other person, provided that this 
 contract is supported by some consideration deemed valu- 
 able in law, and is in other respects without such fraud or 
 mistake as to its procurement, as would avoid any other 
 contract.* And when the contract of waiver is made after 
 the injury is received, if it is in other particulars a lawful 
 one, being founded upon a valuable consideration, and 
 procured without imposition or duress, the courts uphold 
 it as valid.* Such a contract may be implied as well as 
 express, as for example, between a master and servant, 
 when the servant enters into, or continues in, the service 
 with full knowledge of the risk to which he exposes him- 
 
 405 ; Otis V. Janesville, 47 Id. 422 ; ' Western, &c., R. R. v. Bishop, 50 
 
 Sheff V. Hunting^ton, 16 West Va. Ga. 465; Memphis, &c., R. R. v. 
 
 307 ; Cronin v. Delavan, 50 Wis. 375 ; Jones, 2 Head, 517 ; Mitchell v. Penn- 
 
 Rexter v. Starin, 73 N. Y. 601 ; Levy sylvania R. R. Co., i Am. Law Rep. 
 
 w. Carondelet Canal Co., 34 La. Ann. 717; Galloway v. Western, &c,, R. 
 
 180; Jeffrey v. Keokuk, &c., R. R., R., 57 Ga. 512. Contra, Roesner v. 
 
 56 Iowa, 546; Addison on Torts, 23 Hermann, 10 Biss. 486, where such a 
 
 et seq., 227, 493; i Sedgfwick on corAxa.c\. in consideration of the em- 
 
 Damages, 172; 2 Id. 347. ployment, was held illegal as contrary 
 
 ' ID Mee. & W. 546. to public policy. 
 
 'Chicago, &c., R. R. v. George, * Curley w. Harris, 11 Allen, 112; 
 
 19 111. 510; Illinois, &c., R. R. v. Chicago, &c., R. R. ». Doyle, 18 Kan. 
 
 Hetherington, 83 Id. 510; Chicago, 58; Illinois, &c., R. R. w. Welch, 52 
 
 &c., R. R. V. Johnson, 103 111. 512; 111. 183; S. C. 4 Am. Rep. 593; But- 
 
 Macon, &c., R. R. x*. Winn, 19 Ga. ler v. The Regents, 32 Wis. 124; 
 
 440; Union Pacific R. R. v. Rollins, Schultz v. Chicago, &c., R. R., 44 Id. 
 
 5 Kan. 167. 638. 
 
§ 8.] THE GENERAL RULE. 
 
 17 
 
 self by reason of his master's negligence.^ This is held to 
 be an implied contract on the part of the employee to 
 run the risk of the danger, and a waiver of his right to an 
 action against his employer if injury results. Upon this 
 principle also, one who goes upon the premises of another 
 to do business, or as a guest, impliedly accepts the risk 
 of any open or seen dangers that exist about the premises.* 
 It is clear that this voluntary act by which one waives 
 his right of action for damages resulting to him from the 
 negligence of another, is not at all the same thing as con- 
 tributory negligence, though in each case the result is the 
 same — that the plaintiff recovers nothing. In the former 
 case the defense is that the plaintiff is barred of his action 
 by his voluntary assumption of the risk, that he has de- 
 liberately and with his eyes open, disabled himself from 
 recovering damages, that his case comes within the prin- 
 ciple of the maxim volenti nonfit injuria, while in the 
 latter case the defensive matter is that the plaintiff with- 
 out any act of the will, was guilty of such negligent acts 
 as, concurring with the acts of the defendant, produced 
 or occasioned the injury of which he complains, or, what 
 is the same thing, that, in the first instance, he is deprived 
 of his right of action by his express or implied contract, 
 which operates as a sort of estoppel, and in the second 
 instance, he is deprived of his right to recover by his neg- 
 ligence. This distinction between a voluntary act and 
 an involuntary one, between a contract and an act of pure 
 negligence, is an important one. There is a confusion of 
 ideas implied in such expressions as that one cannot re- 
 cover damages " where he has consented or contributed 
 to the act which occasioned the injury," * It is one thing 
 
 ' This is fully considered in the chap- Deacon, 25 Mich, i ; Thomp on Neg., 
 
 ter on Master and Servant, post, q. v. chap. VII, and cases there collected. 
 
 " Indermaur v. Dames, L. R. i C. ' Callahan v. Wame, 40 Mo. 136; 
 
 P. 274; s. C. L. R. 2 C. P. 311 ; Kohn Trow v. Vermont, &c., R. R. Co., 24 
 
 V. Lovett, 44 Ga. 251 ; Hargreaves v. Vt. 487 ; s. C. 58 Am. Dec. 191. 
 
 2 
 
1 8 THE GENERAL RULE. [§ Q. 
 
 to consent, as we have seen, and an essentially different 
 thing to contribute to an injury, and, in order to right 
 thinking upon the question of contributory negligence, 
 the distinction should not be overlooked. 
 
 § 9. What is " ordinary care!' — The Roman jurists 
 of the classical period recognized but two grades of neg- 
 ligence, culpa lata, gross negligence,* and culpa levis, ordi- 
 nary negligence, or the failure to exercise the diligence 
 belonging to a diligens, bonus, studiosus paterfamilias, 
 " quisobrie et non sine exacta deligentia rem suam admin- 
 istrat." To these the scholastic jurists added a third, 
 culpa levissima, slight or infinitesimal negligence. They 
 insisted upon this as a material and essential distinction, 
 but it is conceded at present, that it was not recognized 
 by the classical jurists, and that it is a troublesome and 
 unnecessary refinement. While the text writers and 
 theorists cling to it, it has been found incompatible with 
 the necessities of our modern business jurisprudence, and 
 the courts practically ignore it. The common law, how- 
 ever, recognizes, in theory at least, the soundness of this 
 triple classification. The law students have it " trippingly 
 on the tongue." Ordinary negligence, slight negligence, 
 and gross negligence, for so the text-books expound it. 
 It may be said to date from Coggs v. Bernard (2 Anne, 
 A. D. 1703).** In Lord Holt's famous opinion in this 
 case, the scholastic law of negligence, as he had learned it 
 in Bracton, is incorporated into the law of England, and 
 while, as we have seen, the courts of later times have 
 more or less entirely disregarded culpa levissima, and the 
 impracticable refinements it involves, the authority of 
 that great case has not been challenged, and the learning 
 
 ' "Lata culpa est nimia negligen- ' 2 Ld. Raym. 909 ; s, C. I Smith's 
 tia, id est non intelligere quod omnes L. C. (8th ed.) 369. 
 intelligunt." L. 213, § ult. D. de V. 
 S. Ulpianus lib. i, Regularum. 
 
§ 9-] THE GENERAL RULE. I9 
 
 in it has formed the unquestioned basis of our law in 
 point. 
 
 Three grades of negligence imply three correlative 
 grades of diligence, and so we have slight care, ordinary 
 care, and great care, corresponding respectively to gross 
 negligence, ordinary negligence, and slight negligence. 
 Gross negligence is the failure to exercise even slight care, 
 and slight negligence the failure to exercise great or extra- 
 ordinary care ; while the failure to use ordinary care is 
 ordinary negligence. This somewhat alliterative termin- 
 ology and artificial classification have provoked much 
 criticism,^ both from the text writers and the courts, and 
 from a practical point of view they must be conceded to 
 be obnoxious to gross objection ; " gross " as applied to 
 negligence is said to be merely, in most instances, a spe- 
 cies of vituperation,* and the term " gross negligence " to 
 have no uniform meaning.* 
 
 For the purposes of this treatise it is not necessary 
 to more than advert to the difficulties involved in a com- 
 plete and exhaustive discussion of the grades of negli- 
 gence with their correlative grades of carefulness. We 
 proceed, therefore, to consider " ordinary care " in its bear- 
 ing upon the rule in question. The two essential ele- 
 ments 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, the rule being 
 that a plaintiff cannot recover damages for an injury he 
 has sustained, if the injury could have been avoided by 
 the exercise of ordinary care on his part.* The law does 
 
 ' Steamboat New World w. King, Negligence (London, 1871), § 11; 
 
 16 How. (U. S.) 469, 474. Phillips v. Clark, $ C. B. (N. S.) 884. 
 
 ' Grill V. General Iron Screw Col- * Butterfield v. Forrester, 1 1 East, 
 
 Her Co., L. R. i C. P. 600. See, also, 60 ; Marriott v. Stanley, i Scott's N. 
 
 I Smith's L. C. (8th ed.) 384 (n ). R. 392 ; Smith v. Smith, 2 Pick. 621 ; 
 
 'Austin V. Manchester, &c., Ry. S. C 13 Am. Dec. 464; Steele v. 
 
 Co., 16 Jur. 766. See, also, Wharton's Central R. R., 43 Iowa, 109 ; Hughes 
 
 Negligence, §§ 26^9 ; Campbell's v. Muscatine, 44 Id. 672 ; Priest v. 
 
20 
 
 THE GENERAL RULE. 
 
 [§9. 
 
 not require the plaintiff to be entirely free from any negli- 
 gence whatever contributing to the injury, although there 
 is a line of cases to that effect,^ because that is the same 
 thing as to hold him responsible for slight negligence. 
 This the law does not do ; slight negligence is the want 
 of extraordinary or great care, and that is not what is 
 required.* But while extraordinary care is not to be re- 
 quired of a plaintiff who brings an action of negligence, 
 and although slight negligence on his part will not defeat 
 a recovery, it is held that the slightest want of ordinary 
 care contributing proximately to the injury will do so. 
 This distinction is made in several cases, by the Supreme 
 Court of Wisconsin. It is ingenious and philosophical, 
 and capable of useful application.* 
 
 To essentially the same effect it is said that, although 
 there may have been slight negligence, that is to say, a 
 
 NichoUs, 1 16 Mass. 401 ; Kennard v. 
 Burton, 25 Me. 39; S. C. 43 Am. 
 Dec. 249; Hill V. New Orleans, &c., 
 R. R., II La. Ann. 292 ; Mercier v. 
 Id., 23 Id. 264 ; Railroad Co. v. Jones, 
 95 U. S. 439; Richmond, &c., R. R. 
 V. Morris, 31 Gratt, 200; Crommelin 
 V. Coxe, 30 Ala. 329 ; Gothard v. Ala- 
 bama, &c., R. R., 67 Id. 114; Strong 
 V. Sacramento, &c., R. R., 61 Cal. 
 326; Peverly v. Boston, 136 Mass. 
 366 ; S. C. 49 Am. Rep. 37 ; JeflFerjr 
 V. Keokuk, &c., R. R., 56 Io\ra, 546 ; 
 Sullivan v. Louisville Bridge Co., 9 
 Bush, 81 ; O'Brien v. Philadelphia, 
 &c., R. R., 3 Phila. 76; Marble v. 
 Ross, 124 Mass. 44; Jalie v. Cardinal, 
 35 Wis. 118; Runyon v. Central R. 
 R., 25 N. J. (Law), 556; Sawyer v. 
 Sauer, 10 Kan. 472 ; Kansas, &c., R. 
 R. Co. V. Pointer, 9 Id. 620; S. C. 14 
 Id. 37 ; Cleveland, &c., R. R. z/. Craw- 
 ford, 24 Ohio St. 631 ; Indianapolis, 
 &c., R. R. V. Stout, 53 Ind.143; Daley 
 V. Norwich, &c., R. R. Co., 26 Conn. 
 591 ; Williams v. Clinton, 28 Id. 266; 
 Foxz'.Glastenbury,29 Id. 204 ; Cremer 
 «». Portland, 36 Wis. 99; Beatty v. 
 Gilmore, 16 Penn. St. 463 ; s. c. 55 
 
 Am. Dec. 514;, Washburn v. Tracy, 
 2 D, Chipman (Vt.), 128; S. C. IJ 
 Am. Dec. 661 ; Noyes v. Shepherd,. 
 30 Me. 173; S. C. 50 Am. Dec. 625; 
 Johnson v. Whitfield, 18 Me. 286; 
 s. C. 36 Am. Dec. 721, 
 
 ' New Jersey Express Co. v. Nich- 
 ols, 33 N. J. Law, 434; Philadelphia, 
 &c., R. R. V. Boyer, 97 Penn. St. 91 ; 
 Wilds V. Hudson River R. R., 24 N. 
 Y. 430; Griffen v. New York, &c.. R.' 
 R., 40 Id. 34; Vanderplank w. Miller, 
 Moody and M. 169; Toledo, &c., R. 
 R. V. Goddard, 25 Ind. 185. 
 
 ' Whirley v. Whiteman, 1 Head 
 (Tenn.), 610; Nashville, &c., R. R. 
 Co. V. Carroll, 6 Heisk. 347 ; Mabley 
 V. Kittleberger, 37 Mich. 360 ; Galena, 
 &c., R. R. V. Jacobs, 20 111. 478 ; 
 Daniels v. Clegg, 28 Mich. 32 ; Cremer 
 V. Portland, 36 Wis. 92 ; Springett v. 
 Ball, 4 Post. & Fin. 472. 
 
 • Cremer v. Portland, 36 Wis. 92 ; 
 Dreher v. Fitchburg, 22 Id. 675 ; Ward 
 V. Milwaukee, &c., R. R., 29 li 144; 
 Hammond v. Mukwa, 40 Id. 35 ; Grif- 
 fin V. Willow, 43 Id. 509; Otis V. 
 Janesville, 47 Id. 422; Cronin v. 
 Delavan, 50 Id. 375. 
 
§ 9-] THE GENERAL RULE. 21 
 
 want of extraordinary or g^eat care on the part of the 
 person injured, an action will nevertheless lie if there was 
 no want of ordinary care contributing to the injury.^ 
 
 The standard by which the plaintiflf's negligence is to 
 be measured is the standard of ordinary care, and the rule 
 upon the subject is correctly and pertinently summed up 
 in Cremer v. Portland * by the Supreme Court of Wiscon- 
 sin, viz. : " If the plaintiff was guilty of any want of 
 ordinary ca^e and prudence, (however slight,) which 
 neglect contributed directly to produce the injury, he 
 
 cannot recover. It is not the law that slight 
 
 negligence on the part of the plaintiff will defeat the 
 action. Slight negligence is the want of extraordinary 
 care and prudence, and the law does not require of a 
 person injured by the carelessness of others, the exercise 
 of that high degree of caution as a condition precedent 
 to his right to recover damages for the injuries thus 
 sustained." The weight of the most intelligent authority 
 will, it is believed, sustain this position. Not slight 
 negligence, but any want, however slight, of ordinary care 
 on the part of a plaintiff, is sufficient to defeat the action. 
 
 This want of ordinary care may, in order to operate as 
 a defense to the plaintiff's action, be, in point of time, 
 either prior,* or subsequent to the negligence of the 
 defendant,* or contemporary therewith.* 
 
 ' Strong V. Placerville R. R. Co. nia R. R. Co. v. Moi^an, 82 Penn. 
 
 (Cal.), 14 Rep. no; Baltimore, &c., St. 134; Carroll v. Minnesota, &c., 
 
 R. R. V. Fitzpatrick, 35 Md. 32; Ry., 13 Minn. 930. 
 
 Manly v. Wilmington, &c., R. R., 74 * Butterfield v. Forrester, 1 1 East, 
 
 N. C. 655; Kerwhacker v. Cleveland, 60; Brown v. Milwaukee, &c.. R. R., 
 
 &c., R. R., 3 Ohio St. 172; Dush v. 22 Minn. 165; Martensen v. Chicago, 
 
 Fitzhugh, 3 Lea, 307 ; Houston, &c., &c., R. R. Co., 60 Iowa, 705 ; Jackson 
 
 R. R. V. Gorbett, 49 Texas, 573; w. County Com'rs, 76 N. C. 282. 
 
 Bridge v. Grand Junction Ry. Co., 3 ' O'Brien v. McGlinchy, 68 Me. 
 
 Mee. & W. 244. 552 ; Doggett v. Richmond, &c., Ry. 
 
 • 36 Wis. 92. Co., 78 N. C. 305 ; Chicago, &c., R. 
 
 • Illinois, &c., R. R. Co. v. Hall, 72 R. Co. v. Beeker, 76 111. 26; s. C. 84 
 111. 222; Illinois, &c., R. R. w. He- Id. 483; Moak's Underhill's Torts, 
 therington, 83 Id. 510; Pennsylva- 285. 
 
22 THE GENERAL RULE. [§ 9. 
 
 What is the precise legal intent of the term " ordinary- 
 care," must, in the nature of things, depend upon the 
 circumstances of each individual case. It is a relative 
 and not an absolute term. Chancellor Walworth, in the 
 case of the Mayor, &c., of New York v. Bailey,^ says : 
 " The degree of care and foresight which it is necessary to 
 use " (in any given case) " must always be in proportion 
 to the nature and magnitude of the injury that will be 
 likely to result from the occurrence which is to be 
 anticipated and guarded against. And it should be that 
 care and prudence which a discreet and cautious individ- 
 ual would, or ought to, use if the whole risk and loss were 
 to be his own exclusively." This doctrine is declared in 
 many other cases.* He who does what is more than 
 ordinarily dangerous, is bound to use more than ordinary 
 care, that is to say, it will require greater care under those 
 circumstances to amount in law to ordinary care than it 
 would if the undertaking were less hazardous.* And the 
 measure of diligence required of him is greater or less in 
 the direct ratio of the risk his acts entail upon others. 
 The duty of a plaintiff is to be measured by the same 
 rule that is applied to a defendant, and just in proportion 
 as the danger increases must the care of the plaintiflF be 
 increased, if it is to be held ordinary care under the 
 
 ' 2 Denio, 433. Co., 29 Wis. 144 ; Railroad Co. v. 
 
 ' City of Madison v. Ross, 3 Ind. Pollard, 22 Wall. 341 ; Stokes v. Sal- 
 
 236 ; S. C. 54 Am. Dec. 481; Brown v. tonstall, 13 Peters. 181 ; Reynolds v. 
 
 Milwaukee, &c., R. R. Co., 22 Minn. Burlington, 52 Vt. 300; Strong v. 
 
 165; The Nitro-glycerine Case, Par- Placerville, &c., R. R. Co. (Cal.), 14 
 
 Tottv. Wells, Fargo & Co., 15 Wall. Rep. 550: Johnson v. West Chester, 
 
 524 ; S. C. su6 nam., Parrot v. Barney, &c., R. R. Co., 70 Penn. St. 357 ; 
 
 2 Abb. C. C. 197; s. C. I Deady, 405 ; Lynch v. Nurdin, by Lord Denham, 
 
 I Sawyer, 423; Morgan v. Cox, 22 C J., i Q. B. 29; s. C. 4 Per. & Dav. 
 
 Mo. 373 ; Northern Central R. R. Co. 672 ; 5 Jur. 797 ; Baltimore, &c.. R. R. 
 
 V. Pnce, 29 Md. 420; Beers v. Hous- Co. v. State (Md.), 11 Rep. 160; Lan- 
 
 atonic R. R. Co., 19 Conn. 566 ; Moore caster v. Kissinger (Penn.), 1 2 id.635; 
 
 V. Central R. R. Co., 24 N. J. Law, Aurora, &c., R. R. Co. v. Grimes, 13 
 
 268; Wyandotte v. White, 13 Kan. 111.585. 
 
 191 ; Wheeler v. Westport, 30 Wis. ' Wilson v. Cunningham, 3 Cal. 
 
 392; Ward V. Milwaukee, &c., R. R. 241 ; s. C. 58 Am. Dec. 407. 
 
§ 9-] THE TJENERAL RULE. 
 
 23 
 
 circumstances. It is clear that what might be entirely- 
 prudent in one condition of things would be reckless and 
 grossly negligent in another. 
 
 Ordinary care is generally, therefore, a question of 
 fact, and the question is not whether the actor thought his 
 conduct was that of a prudent man, but whether the jury 
 thinks it was.^ The law prescribes as a standard of 
 conduct — to which all must conform at their peril — ^the 
 conduct of an ideal average prudent man,^ whose equiv- 
 alent for practical purposes the jury is generally taken to 
 be, and whose culpability or innocence is the supposed 
 test. This is a constant, and his conduct under given 
 circumstances is theoretically always the same.* But 
 while ordinary care is primarily a question for the jury, 
 there may be observed in the growth of the law a mani- 
 fest tendency to reduce the featureless generality that a 
 plaintiff is bound to exercise such care as a prudent man 
 would exercise under the circumstances, which means lit- 
 tle or much, and leaves every case without compass or 
 rudder, very largely to the caprice of a jury, to some 
 specific rule or requirement of law, that, he is bound to 
 use this or that precaution under these or those circum- 
 stances. In the infancy of the law of railroads, for an 
 example, it was the rule that a traveller, upon approach- 
 ing a point where a railway track crossed a highway upon 
 the same level, must exercise due and ordinary care not 
 to be run over by a passing train of cars, and the question 
 of what was ordinary care went to the jury. Now it is 
 tolerably well settled that under such circumstances a 
 
 ' Blyth w. Birmingham Waterworks Walsh v. Oregon, &c., R. R., 10 
 
 Co., II Exch. 784; Smith v. London Oregon, 250; Fassett v. Roxbury, 55 
 
 & Southwestern Ry. Co., L. R. 5 C. Vt. 552; Martin v. Bishop, 59 Wis. 
 
 P. 102 ; Hays v. Millar, ^^ Penn. St. 417 ; Hassenger v. Michigan, &c., R. 
 
 238 ; Holmes' Common Law, 107. R. Co., 48 Mich. 205 ; s. C. 42 Am. 
 
 ' The dtligens, bonus, studiosus pa- Rep. 470 ; Cronin v. Delavan. 50 Wis. 
 
 terfamilias of the Roman lawyers. 375 ; Otis v. Janesville, 47 Wis. 422. 
 
 ' Holmes' Common Law, 1 1 1 ; 
 
24 THE GENERAL «ULE. [§ 9, 
 
 traveller must look up and down the track attentively, 
 and a failure to do this is generally negligence as a matter 
 of law. So the question of ordinary care tends more and 
 more to definiteness and certainty, and the law in this 
 behalf grows more and more concrete; by judicial decision 
 and by statute. There is less and less danger that the 
 term will be misapplied or misunderstood. Specific rules 
 for specific cases are taking the place of the general rule 
 that one must use ordinary care and prudence ; but 
 whenever no such rules have been laid down, we revert to 
 the original theory and decide the case upon the only 
 remaining rational principle, that ordinary care is to be 
 held to mean that measure of prudence and carefulness 
 that the average prudent man ' might be expected under 
 the circumstances to exercise, allowing the degree of it to 
 vary in proportion to the hazard of the particular enter- 
 prise, and referring the ultimate decision to a jury of 
 twelve men,* 
 
 • In Hassenger v. Michigan Central every man knows the law. But a 
 
 R. R. Co., 48 Mich. 205 ; s. C. 42 Am. more satisfactory explanation is that 
 
 Rep. 470, it is decided by Copley, J., when men live in society a certain av- 
 
 that the same degree of care is re- erage of conduct, a sacrifice of indi- 
 
 quired of a woman as of a man. See, vidual peculiarities going beyond a 
 
 also, Fox V. Glastenbury, 29 Conn, certain point is necessary to the gen- 
 
 204- eral welfare. If, for instance, a man 
 
 ' Mr. Justice Oliver Wendell is born hasty and awkward, is always 
 Holmes, Jr., of the Supreme Court of having accidents and hurting himself 
 Massachusetts, in his excellent work or his neighbors, no doubt his congen- 
 entitled " The Common Law," says, ital defects will be allowed for in the 
 at page 108: "The standards of the courts of heaven; but his slips are no 
 law are standards of general applica- less troublesome to his neighbors than 
 tion. The law takes no account of if they sprang from guilty neglect, 
 the infinite varieties of temperament. His neighbors accordingly require 
 intellect and education which make him, at his proper peril, to come up 
 the internal character of a given act to their standard, and the courts which 
 so different in different men. It does they establish decline to take his per- 
 not attempt to see men as God sees sonal equation into account. The 
 them, for more than one sufficient rea- rule that the law does in general de- 
 son. In the first place, the impossibil- termine liability by blameworthiness 
 ity of nicely measuring a man's powers is subject to the limitation that minute 
 and limitations is farclearer than that differences of character are not al- 
 of ascertaining his knowledge of law, lowed for. The law considers, in 
 which has been thought to account for other words, what would be blame- 
 what IS called the presumption that worthy in the average man, the man 
 
§io.] 
 
 THE GENERAL RULE. 
 
 25 
 
 § 10. What is a proximate cause. — The essence of 
 contributory negligence is, as has been shown, a want of 
 ordinary care on the part of a plaintiff, which is a prox- 
 imate cause, an occasion of the injury. We have con- 
 sidered, in the preceding section, the law affecting 
 ordinary care. It remains to set forth the rules of law 
 in regard to that lack of ordinary care as a proximate 
 cause of the injufy of which the plaintiff complains. The 
 courts declare, and it is a settled rule of law, that, not 
 only must the negligence of one injured by another's 
 culpable neglect contribute to produce the injury, but 
 that if it is to constitute contributory negligence, it must 
 contribute as a proximate cause, and not as a remote 
 cause or mere condition. ^ 
 
 of ordinary intelligence and prudence, whacker v. Cleveland, &c , R. R., 3 
 
 and determines liability by that. If Ohio St. 172 ; Barbee v Reese, 60 
 
 we fall below the level in those gifts Miss. 906 ; Louisville, &c., R. R. Co. 
 
 it is our misfortune. Sc much as that v. Wolfe, 80 Ky. 82 ; O'Connor v. 
 
 we must have at our peril for the rea- North Truckee Ditch Co , 17 Nevada, 
 
 sons just gfiven.'' 246 ; Towler v. Baltimore, &c., R. R. 
 
 ' Tuff V, Warman, 2 C. B. (N. S.) Co., 18 West Va. 579; Thompkins v. 
 
 740 ; S. C. 5 C. B. (N. S.) 573 ; Irwin Kanawha Board, 21 Id. 224; Harris 
 
 w.'Sprigg, 6 Gill (Md.), 200 ; S. C. 46 ».,Union Pacific R.R. Co., 4 McCrary, 
 
 Am. Dec. 667 ; Northern Central R. 454; HafF v. Minneapolis, &c., R. Ri 
 
 R. Co. V. Price, 29 Md. 420 ; Kline v. Co., 4 Id. 622; Crandall v. Goodrich 
 
 Central, &c., R. R. Co., 37 Cal. 400; Trans. Co., 11 Biss. 516; s. c. 16 Fed. 
 
 Needham v. San Francisco, &c., R. Rep. 75; Kennard v.Burton,25 Me.39; 
 
 R. Co., 37 Id. 409; Flynn v. San s. C. 43 Am. Dec. 249; Fentz'. Railroad 
 
 Francisco, &c., R. R. Co., 40 Cal. 14; Co , 59 111. 349; S. C. 14 Am. Rep. 13; 
 
 Baltimore, &c., R. R. Co. v. Reaney, Grant v. Mosly, 29 Ala. 302 ; Gothard 
 
 42 Md. 117; Doggett V. Richmond, v. Alabama, &c., R. R. Co., 67 Id. 
 
 &c., R. R., 78 N. C, 305 ; Shaffer v. 114 ; Dyer v. Talcott, 16 111. 300 ; 
 
 Railroad Co., 105 U. S. 249 ; Fer- Weymire v. Wolfe, 52 Iowa, 533 ; 
 
 nandez v. Sacramento, &c., R. R., 52 Walsh v. Miss. Trans. Co., 52 Mo. 
 
 Cal. 45 ; Meeks v. Southern Pacific 434; Whalen v. St. Louis, &c., R. R. 
 
 R. R. Co., 56 Id. 513; S. C. 38 Am. Co., 60 Id. 323; Stepp v. Chicago, 
 
 Rep. 67 ; Isbell v. New York, &c., &c., R. R. Co., Sup. Ct., Mo. 20 
 
 R. R., 27 Conn. 393 ; The State v. Cent. L. J. 274; Byram i/. McGuire, 
 
 Manchester, &c., R. R., 52 N. H. 528; 3 Head, 530; Brown v. Chicago, &c., 
 
 Gunter v. Wicker, 85 N. C. 310; R. R , 54 Wis. 342; s. C. 41 Am. 
 
 Dudley w. Camden, &c., Ferry Co, 45 Rep. 41 ; Nave v. Flack, 90 Ind. 205; 
 
 N. J. Law, 368; Palys v. Erie Rail- s. C. 46 Am. Rep. 205 ; Terre Haute, 
 
 way Co., 30 N. J. Eq. 604; Thirteenth &c., R. R. Co. v. Buck, 96 Ind. 346; 
 
 Street Ry. Co. v. Boudrou, 92 Penn. S. C 49 Am. Rep. 168; Williams v. 
 
 St. 475; s. C. 37 Am. Rep. 707; Vanderbilt, 28 N. Y. 217; Gunner z/. 
 
 Gil City Gas Co. v. Robinson, 99 Id. Second Avenue R. R. Co., 67 Id. 596; 
 
 I ; Drake v. Kiley, 93 Id. 492 ; Ker- Sauter v. New York, &c., R. R. Co., 
 
26 
 
 THE GENERAL RULE. 
 
 [§io. 
 
 This rule is stated over and over in the reports, with 
 almost every possible limitation, and in almost every 
 possible way ; as, for example, that if the negligence of 
 both parties be proximately the cause of the injury, or 
 when the plaintiff's negligence only is proximate, while 
 that of the defendant is remote, there can be no recovery/ 
 but that when the defendant's negligence is the proxi- 
 mate cause and that of the plaintiff the remote cause, the 
 plaintiff may have his action.* And again, if the negli- 
 gence of the plaintiff being only a remote cause, the 
 defendant might have avoided inflicting the injury by the 
 exercise of ordinary care, the action for damages is main- 
 tainable.* In such a case the defendant's negligence is 
 the proximate cause, and he is liable.* But if. on the 
 
 66 Id. 50 ; Johnson v. Hudson River 
 R. R. Co., s Duer, 27 ; Button v. Id., 
 18 N. Y. 248 ; Austin v. N J. Steam- 
 boat Co., 43 Id. 75 ; Healey v. Dry- 
 Dock, &c., R. R. Co., 46 Super. Ct., 
 Rep. 473 ; Harvey v. New York, &c., 
 R. R., 19 Hun, 556 ; Mark v. Hud- 
 son, &c.,-B. Co., 56 How. Pr. 108; 
 Lannen v. Albany Gaslight Co., 44 
 N. Y. 459 ; Cosgrove v. New York, 
 &c., R. R., 13 Hun. 329. See, also, 
 2 Sedgwick on Damages, 348, 362; 
 Field's Corporations, 462, 464; Cooley 
 on Torts, 76 and note ; Sutherland on 
 Damages, 62; 2 Bishop's Criminal 
 Law, 637, 639; I Hales' P. C„ 428; 
 
 1 Hawk. P. C, 93 ; Mr. Freeman's 
 Note, 55 Am. Dec, 668 ; Thomp. 
 Whart. and Shear. & Redf., in loco. 
 
 ' Irwin V. Sprigg, 6 Gill (Md.), 200; 
 S. C. 46 Am. Dec. 667; Trow v. 
 Vermont, &c., R. R , 24 Vt. 487 ; 
 Richmond, &c., R. R. Co. v. Ander- 
 son, 31 Gratt. 812 ; Alston v. Her- 
 ring, II Exch. 822; Wetherley v. 
 Regent's Canal Co., 12 C. B. (N. S.) 
 l; Callahan w. Wame, 40 Mo. 131; 
 Frederick v. Taylor, 14 Abb. Pr. (N. 
 S.) 77; Wilds w. Hudson River R.R. 
 Co., 24 N. Y. 430 ; Stiles v. Geesey, 
 71 Penn. St. 441 ; Sherman v. Stage 
 Co., 24 Iowa, 515 ; Flower v. Adam, 
 
 2 Taunt. 314. (In the head-note of 
 
 this case it is said that if the proxi- 
 mate cause of the injury is the plain- 
 tiff's negligence, he cannot recover, 
 although the primary cause was the 
 defendant's negligence. 
 
 2 Pacific R. R. Co. v. Hauts, 12 
 Kan. 328 ; Walsh v. Miss. Trans. Co., 
 52 Mo. 434 ; Whalen v. St. Louis, 
 &c., R. R., 60 Id. 323; Steele v. 
 Burkhardt, 104 Mass. 59 ; Needham 
 V. San Francisco, &c., R. R. Co., 37 
 Cal. 417; Nashville, &c., R. R. Co. v. 
 Smith, 6 Heisk. 174 : Manly v. Wil- 
 mington, &c., R. R. Co., 74N.C.6S5; 
 Trow V. Vermont, &c., R. R. Co., 24 
 Vt. 487 ; State v. Manchester, &c., R. 
 R. Co., 52 N. H. 528 : Kerwhacker 
 V. Cleveland, &c., R. R. Co., 3 Ohio 
 St. 172. 
 
 " Tuff V. Wannan, 2 C. B. (N. S) 
 740 ; Dav V. Grossman, 4 Thomp. & 
 Cook (N. Y. Super. Ct), 122; Dog- 
 gett V. Richmond, &c., R. R. Co., 78 
 N. C. 305. 
 
 * Schierhold v. North Beach. &c., R. 
 R. Co., 40 Cal. 447 ; Pennsylvania R. 
 R. Co. V. Sinclair, 62 Ind. 301 ; S. C. 
 30 Am. Rep. 185 ; McKean v. Bur- 
 lington, &c., R. R. Co., 55 Iowa. 192; 
 Nashville, &c., R. R. v. Carroll, 6 
 Heisk. 347 ; O'Brien v. McGlinchy, 68 
 Me. 582; People's, &c., R. R. Co. z/. 
 Green, 56 Md. 84; Isbell v. New 
 
§ lO.] THE GENERAL RULE. 27 
 
 contrary, the defendant's negligence being only the 
 remote cause, the plaintiif might have escaped the injury 
 by the exercise of ordinary care, his own negligence is 
 the proximate cause, and he can maintain no action.^ 
 
 The plaintiff's negligence, in order to constitute a 
 defense to the action he brings, need not, of course, be 
 the sole proximate cause of the injury, for this excludes 
 the idea of negligence on the part of the defendant, as in 
 any legal sense material. If his negligence is the sole cause 
 of his injury, it is not contributory negligence at all. So 
 the Supreme Court of Iowa declares the rule to be that 
 if the plaintiff's want of ordinary care was in whole or in 
 part a proximate cause of his injury, he cannot recover.* 
 There must be not only negligence on the part of the 
 plaintiff, but contributory negligence, a real causal con- 
 nection between the plaintiff's negligent act and the 
 injury, or it is no defense to the action.^ So it is said 
 that a plaintiff's negligence must substantially contribute 
 to produce the injury, in order to avail the defendant 
 anything,* and also that it must not only concur in the 
 
 York, &c., R. R. Co.. 27 Conn. 393 ; Ferry Co.. 43 Mo. 383 ; Schaabs v. 
 
 Zimmerman v. Hannibal, &c., R. R. Wheel Co., 56 Id. 173 ; Williams v. 
 
 Co., 71 Mo. 476 ; Bunting v. Central Clinton, 28 Conn. 266; Artz v. Chi- 
 
 Pacific R. R. Co., 16 Nevada, 277; cago, &c., R.R. Co., 38 Iowa, 293, and 
 
 Gunter v. Wicker, 85 N. C. 310; generally the cases cited JK/ra. 
 
 Richmond, &c., R. R. Co. v. Ander- » McAunich v. Mississippi, &c., R. 
 
 son, 31 Gratt 812; S. C. 31 Am. Rep. R. Co., 20 Iowa, 338; Muldowney v. 
 
 750; Radley v. London, &c., Railway Illinois, &c., R. R. Co., 39 Id 615. 
 
 Co., L. R. 9 Exch. 71 ; s. C. 43 L. J. ' Wharton on Negligence, chap.III, 
 
 (Exch.) 73; I App. Cas. 754. and §§ 323-333; Savage v. Com Ex- 
 
 ' Butterifield v. Forrester, 11 East, change Insurance Co., 36 N. Y. 655; 
 
 60; Wood V. Jones, 36 La. Ann.; Norris v. Litchfield, 35 N. H. 271 ; 
 
 Hoehl V. City of Muscatine, 57 Iowa, Silliman v. Lewis, 49 N. Y. 379 ; 
 
 444; Macon, &c., R. R. Co. v. Winn, Alger v. Lowell, 3 Allen, 402; Morri- 
 
 19 Ga. 440 ; Walsh v. Miss. Trans, son v. Gen. Steam Nav. Co., 8 Exch. 
 
 Co., 52 Mo. 434; Gothard v. Alabama, 733 ; Shear. & Redf. on Neg., § 32. 
 
 &c., R. R. Co., 67 Ala. 114; Dudley * Daley w. Norwich, &c., R. R. Co., 
 
 V. Camden Ferry Co., 45 N. J. Law, 26 Conn. 591 ; West v. Martin, 31 
 
 368; Newhoiisev. Miller, 35 Ind. 463; Mo. 375; New Haven Steamboat 
 
 Robinson w. Western, &c., R. R. Co., Co. ». Vanderbilt, 16 Conn. 420. 
 
 48 Cal. 409; Heame w. Southern, &c.. See, also, Grippen v. New York, &c.. 
 
 R. R. Co., 50 Id. 482 J Morrissey v. R. R. Co., 40 N. Y. 34. 
 
28 THE GENERAL RULE. [§ lO. 
 
 transaction, but also co-operate in producing the injury.* 
 In Sullivan v. Louisville Bridge Co., a leading authority 
 in Kentucky,* it is said to be the rule that the plaintiffs 
 negligence, in order to constitute a defense, must have 
 been so for an efficient cause of the injury, that, without 
 it, the injury would not have happened. So also there is 
 a line of cases to the effect that, when the plaintiff, though 
 negligent, could not, by the exercise of ordinary care, 
 have escaped the consequence of the defendant's negli- 
 gence, he may recover.® 
 
 This is a correct rule, but, in the judgment of the 
 author, it is a dangerous way of expressing it. Lord 
 Macaulay said of his style, when some one complimented 
 him about it, that it came very near to being a very bad 
 style ; and so the courts, when they fall into this category, 
 come very near to a wrong statement of the rule. There 
 is but a single step from such a rule as this, expressed in 
 this way, to the heresy in Davies v. Mann,* which ignores 
 entirely the negligence of the plaintiff, and makes an end 
 of the whole theory upon which the law of contributory 
 negligence rests. If the rule, as these cases put it, means 
 that whenever the plaintiff's negligence is the proximate 
 or a proximate cause of the injury he suffers, he cannot 
 recover, and whenever it is not, that he may recover, it 
 is a sound rule. But if it means anything less than this, 
 it is unsound. It seems to me that nothing is gained by 
 these various round about statements of the rule. The 
 attempts of the judges to ring a new change, or to find 
 some novel and original phrase in which to express the 
 
 ' Carroll v. New Haven, &c., R. R. nard v. Burton, 25 Me. 39 ; S. C. 43 
 Co., I Duer, 571 ; Colegrove v. Id., Am. Dec. 249 ; Cummins v. Presley, 
 20 N. Y. 492. 4 Harr. (Del.) 315 ; Scott v. Dublin, 
 '9 Bush, 81. &c., Ry. Co., II Ir. Com. Law 
 2 Radley v. London, &c., Railway (N. S.), 377 ; Northern Central Rail- 
 Co., L. R. 9 Exch. 71 ; s. c. 43 L. J. way Co. v. Geis. 31 Md. 357. 
 ffixch.) 73; I App. Cas. 754; Tuff v. * 10 Mee. & W. 546. 
 Warman, 5 C. B. (N. S.) 573 ; Ken- 
 
§ lO.] THE GENERAL RULE. 
 
 29 
 
 rule, that, whenever the negligence of a plaintiff proxi- 
 mately contributes to cause the injury for which he seeks 
 to recover damages, he has no cause of action, has 
 thrown the law into confusion. Davies v. Mann ^ has con- 
 tributed more than the full share of any one decision to 
 this end. It may be cited as authority for any one, or 
 all, of the four following propositions : i. When the 
 plaintiff's negligence is only a remote cause of the injury 
 he sustains, it is not contributory negligence and he may 
 recover. 2. Contributory negligence is no bar to an 
 action for a wilful injury. 3. The negligence of the 
 plaintiff and defendant should be compared, and the one 
 most in fault should be held solely responsible. 4. The 
 defendant is on trial, not the plaintiff,* and if he is in 
 fault, he is liable without regard to any contributory 
 negligence of the plaintiff, which is not a material element 
 in the case. The first two of these propositions are 
 unquestionably sound rules of law, and it is believed that 
 they will cover exactly every case in which a correct 
 conclusion has been reached under the rule as deqlared 
 in Davies v. Mann.* This is well illustrated by a consid- 
 eration of the cases in the New York reports that assume 
 to follow it, and in which it is cited with approval. It 
 was decided in the Court of Exchequer in 1842, but the 
 first appearance in New York of the doctrine it announ- 
 ces, seems to have been in 1855 in the case of Johnsons. 
 Hudson River R. R. Co.,* where it is spoken of as 
 " somewhat novel," but " highly reasonable." The lan- 
 guage of the court, after citing Davies v. Mann, is: "The 
 defendant is not shielded from a recovery, notwithstand- 
 ing contributory negligence on the part of the plaintiff is 
 
 • 10 Mee. & W. 546. • 10 Mee. & W. 546. 
 
 • See on this point an old Vermont • 5 Duer, 27. 
 case, Washburn v. Tracy, 2 D. Chip- 
 man, 128 ; S. C. 15 Am. Dec. 661. 
 
30 THE GENERAL RULE. [§ lO. 
 
 proved, when it appears that, but for his own subsequent 
 negligence, the accident would never have occurred, that 
 is when it appears that his own negligence was its sole 
 proximate cause." This is assumed in the opinion to be 
 the doctrine in Davies v. Mann. 
 
 Again in Button v. Hudson River R. R. Co.,^ decided 
 in 1858, the rule in Davies v. Mann,* is laid down with- 
 out qualification, in ipsissimis verbis, and Mr. Justice 
 Harris, in stating the rule of remote cause, expressly 
 affirms it to be the equivalent of the rule as declared in 
 the English authority upon which he relies. He says, in 
 concluding his opinion, ''Where the negligence of the 
 defendant is proximate and that of the plaintiff remote, 
 the action may be sustained. The question then is 
 whether it being conceded that the plaintiff was not 
 without fault, the defendant might by the exercise of rea- 
 sonable care and prudence at the time of the injury have 
 avoided it. " ^ 
 
 In another line of cases in New York, Davies v. Mann 
 is cited as authority for the second of our propositions, 
 viz. : that contributory negligence is no bar to an action 
 for wilful injury. In Kenyon v. New York, &c., R. R.,* 
 after citing Davies v. Mann, and laying down the doctrine 
 of that case broadly, the court says : " Neglect on the 
 part of the person in charge of the engine to use ordinary 
 care to avoid injuring a person on the track is in contem- 
 plation of law equivalent to intentional mischief, and in 
 Green v. Erie Ry. Co.," Davies v. Mann is cited as a 
 
 ^- ^-^t; ^ New York, &c, R. R., 13 Hun, 329; 
 
 10 Mee & W 546. Healey v. Dry Dock, &c. , R. R. Co., 
 
 See also the following later 46 Super. Ct. Rep. 473; also. Steves 
 
 cases in New York, in which Davies v. Oswego. &c., R. R. Co 18 N Y 
 
 V. Mann is cited as sustaining the 422 ; Gorton v. Erie Ry. Co . AA N 
 
 doctnne that the remote negligence Y. 660. 
 
 of a plaintiff is not contributory negli- * 5 Hun, 479 
 
 gence. Austin v. New Jersey Steam- • 11 Hun 333 
 
 boat Co., 43 N. Y. 75 ; Cosgrove v. 
 
§ lO.] THE GENERAL RULE. 3 1 
 
 controlling authority, and the rule therein is assumed to be 
 equivalent to the proposition that wilful neglect is not to 
 be excused by contributory negligence. " We think it was 
 a proper question for the jury," says the Supreme Court 
 in this case, "whether the defendant was not guilty of 
 such gross negligence as was equivalent to intentional 
 mischief.^ 
 
 To this extent there is no objection to the doctrine 
 in Davies v. Mann. So far as it teaches the principle that 
 remote causes are not to be regarded, that only when the 
 plaintifFs negligence is a proximate cause will it bar his 
 action, and that contributory negligence is no defense to an 
 action for wilful negligence, it is a sound authority. But 
 it does not end there. It is equally an authority for the 
 doctrine of comparative negligence, short of which there 
 is no place to stop if we frankly accept the rule to its full 
 extent. In the earlier cases in Illinois and other States 
 where the doctrine of comparative negligence now ob- 
 tains there is no trace of that doctrine,* and it seems 
 clear that it originated in an attempt to adopt and apply 
 the rule in Davies v. Mann.® In those jurisdictions where 
 comparative negligence is not the rule the influence of 
 this case has been to confuse the law and undermine the 
 sound principles upon which it should be based. Its ap- 
 parent resemblance to the two sound principles which 
 have been referred to, and the rather ingenious, but really 
 clumsy way in which the fallacy is concealed, have en- 
 abled it to pass current ; but until the falseness of its rea- 
 
 ' See, also, to the same effect, State Bar Association, for 1883, at 
 
 Wilds w. Hudson River R. R. Co., 33 page 197. 
 
 Barb. 503 ; s. C. 24 N. Y. 430, and " Aurora, &c., R. R. Co. v. 
 
 29 N. Y. 315; Grippen v. New York, Grimes, 13 111. 585; Macon, &c., R. 
 
 &c., R. R. Co., 40 N. Y. 34, and an R. Co. v. Davis, 18 Ga. 679; Union 
 
 essay by Edward E. Sprague, Esq., of Pacific R. R. Co. v. Rollins, 5 Kan. 
 
 New York, " Contributory Negligence 167. 
 
 and the Burden of Proof," in Vol. VI » Thomp. on Neg., 1165. 
 of the proceedings of the New York 
 
32 THE GENERAL RULE. [§ lO. 
 
 soning and statement are recognized and its authority is 
 distinctly repudiated, the doctrine of contributory negli- 
 gence is in peril. 
 
 To return from this excursus on Davies v. Mann, let 
 us consider the definitions the reported cases and the 
 text writers propose for the term " proximate cause." The 
 plaintiff's want of ordinary care must, we have seen, be a 
 proximate cause of his injury or it will not be contributory 
 negligence. What then precisely is a proximate cause ? 
 It is a genera] rule of law that a man is responsible for 
 the natural and probable consequences of his acts, and for 
 these consequences only so far as they are natural and 
 proximate, and such as may on this account be foreseen 
 \>y ordinary forecast or, as it is sometimes expressed, a 
 man is presumed to intend the natural and probable con- 
 sequences of his acts. An act is the proximate cause of 
 an event when in the natural order of things, and under 
 the circumstances, it would necessarily produce that event, 
 when it is the first and direct power producing the result, 
 the causa causans of the schoolmen. "If the wrong and 
 the resulting damages are not known by common experi- 
 ence to be usually and naturally in sequence and the dam- 
 age does not, according to the ordinary course of events, 
 follow from the wrong, then the wrong and the damage are 
 not sufficiently conjoined or concatenated, as cause and 
 effect, to support an action," says Mr. Justice Cooley.^ 
 That is to say, for remote or secondary causes, men are not 
 legally responsible.^ From the nature of the matter there 
 can be no fixed and immediate rule upon this subject that 
 can be applied to all cases — much must depend upon cir- 
 cumstances, and what is, or what is not, a proximate cause 
 will very often have to be determined upon considerations 
 
 ' Tort8, 69. s Causa froxima non remota 
 
 spectatur. 
 
§ IO.J THE GENERAL RULE. 
 
 33 
 
 of sound judgment and enlightened common sense ' with- 
 out the aid of any certain rule or infallible precedent. 
 Says Mr. Justice Agnew, in Fairbanks v. Kerr,* " Many 
 cases illustrate, but none define what is an immediate, or 
 what is a remote cause. Indeed such a cause seems to be 
 incapable of any strict definition which will suit every 
 
 case." " We are not to link together as 
 
 cause and effect events having no probable connection 
 in the mind, and which could not, by prudent circum- 
 spection and ordinary thoughtfulness, be foreseen as likely 
 to happen in consequence of the act in which we are en- 
 gaged. It may be. true that the injury would not have 
 occurred without the concurrence of our act with the 
 event which immediately caused the injury, but we are 
 not justly called to suffer for it, unless the other event 
 was the effect of our act, or was within the probable 
 range of ordinary circumspection when engaged in the 
 act." For the practical purposes of this treatise nothing 
 can probably be gained by any further consideration of 
 this vexed metaphysical question. All the learning of 
 the speculative philosophers from Aristotle to John 
 Stuart Mill has not availed to reduce it even to toler- 
 able certainty. Lord Bacon in his Maxims* paraphrases 
 the Latin rule,* as follows : " It were infinite for the law 
 to consider the causes of causes and their impulsions 
 one of another, therefore it contenteth itself with the im- 
 mediate cause, and judgeth of acts by that without look- 
 ing for any further degree." He then proceeds to illus- 
 
 •"Such nearness in the order of be left each particular case." Harri- 
 
 events, and closeness in the relation son v. Berkley, i Strobh. Law (S. 
 
 of cause and effect, must subsist, that C), 525 ; S. C. 47 Am. Dec. 578. 
 
 the influence of the injurious act may '70 Penn. St. 86; S. C 10 Am. 
 
 predominate over that of other causes. Rep. 664. 
 
 and shall concur to produce the con- ' Reg. i. 
 
 sequence, or may be traced in those * " Injure non remota causa sed 
 
 causes. To a sound judgment must proxima spectatur.''^ 
 
 3 
 
34 
 
 THE GENERAL RULE. 
 
 K 
 
 II. 
 
 trate the meaning of the rule by citations of familiar 
 cases from the Year Books, avoiding any philosophical 
 discussion of it, and not attempting a definition. I accord- 
 ingly shall content myself with citing several cases where 
 the distinction between proximate and remote causes 
 is aptly illustrated, quas vide} 
 
 § II. Distinction between causal connection and a 
 plaintiff's negligence. — The distinction between the neg- 
 ligence of a plaintiff, and the causal connection between 
 such negligence and the injury of which he complains 
 must not be overlooked. It is plain .that negligence is 
 
 ' The Lords Bailiff- Jurats of Rom- 
 ney Marsh v. The Corporation of the 
 Tnnity House, L. R. 5 Exch. 204 ; s. 
 C. L. R. 7 Exch. 247 ; Salisbury v. 
 Herchenroder, 106 Mass. 458 ; S. C. 
 8 Am. Rep. 354; Burrows v. Marsh 
 Gas & Coke Co., L. R. 5 Exch. 67 ; 
 S. C. L. R. 7 Exch. 96; Welch v. 
 Wesson, 6 Gray 505 ; Metallic Com- 
 pression Casting Co. v. Fitchburg R. 
 R. Co., 109 Mass. 277 ; s. C. 12 Am. 
 Rep. 689. (These five cases are se- 
 lected by Judge Thompson as leading 
 cases and printed in full in his excel- 
 lent treatise on Negligence, commenc- 
 ing at page 1063) ; Collins v. Middle 
 Levee Commissioners, L. R. 4 C. P. 
 279; S. C. 38 L. J. (C. P.) 236; 20 L. 
 T. (N. S.) 442 ; Cleland v. Thornton, 
 43 Cal. 439 ; Lawrence v. Jenkins, 
 L. R. 8 Q. B. 274; s. C. 42 L. J. (Q. 
 B.) 147; Gilman v. European, &c., 
 R. R.. 60 Me. 235 ; Carter v. Towne, 
 103 Mass. 507 ; Mott v. fludson River 
 R. R. Co., 24 N. Y. Supr. Ct. 585 ; 
 George v. Smith, 6 Ired. (N. C.) Law, 
 273 ; Texas, &c., R. R. Co. v. An- 
 derson, (Sup. Ct. Texas), 4 Texas L. 
 Rev. 211; Brooks z/. Boston, 19 Pick, 
 174 ; The Squib Case, Scott v. Shep- 
 herd, 2 Wm. Black. 892 ; Belief on- 
 taine, &c., R. R. Co. v. Snyder, 18 
 Ohio St. 399; McGrew 7'. Stone, 53 
 Penn. St. 436 ; Greenland v. Chaplin, 
 5 Exch. 243; Harrison v. Berkley, i 
 
 Strobh. Law (S.C), 549; S. C. 47 Am. 
 Dec. 578 ; Terre Haute, &c., R. R. 
 Co. V. Buck, 96 Ind. 346 ; S. C. 49 
 Am. Rep. 168; Page v. Bucksport, 
 64 Me. 51 ; S. C. 18 Am. Rep. 239 ; 
 Thomas v. Winchester, 6 N. Y. 397; 
 S. C. 57 Am. Dec. 455, and note ; 
 Milwaukee, &c., R. R. Co. v. Kel- 
 logg, 94 U. S. 469 ; Ehrgott v. The 
 Mayor, &c., 96 N. Y. 264 ; S. C. 48 
 Am. Rep. 622 ; Heney v. Dennis, 93 
 Ind. 452 ; S. C. 47 Am. Rep. 378, and 
 the note ; Pent v. Toledo, &c., R. R. 
 Co., 59 111. 349 ; s. C. 14 Am. Rep. 
 13 ; Beauchamp v. Saginaw Mining 
 Co., 50 Mich. 163 ; S. C. 45 Am. Rep. 
 30 ; Henry v St. Louis, &c., R. R. 
 Co., 76 Mo. 288 ; s. C. 43 Am. Rep. 
 762 ; Brown v. Chicago, &c., R. R. 
 Co., 54 Wis. 342 ; S. C. 41 Am. Rep. 
 41, and note ; Hadley v. Baxendale, 9 
 Exch. 341 ; s C. 23 L. J. (Exch.) 179; 
 Drake v. Kiely, 93 Penn. St. 492 ; 
 Scheffer v. Washington City, Virginia 
 Midland and Great Southern R. R. 
 Co., 105 U. S. 249; Murdockw. Bos- 
 ton, &c., R. R. Co., 133 Mass. 15; 
 Penn. R. R Co. v. Kerr, 62 Penn. St. 
 353 ; S. C. I Am. Rep. 431; Id. v. Hope, 
 80 Id. 373 ; s. C. 21 Am. Rep. 100; 
 3 Sutherland on Damages, 714, 715 ; 
 Addison on Torts, (3d ed.) 5 ; Cooley 
 on Torts, 69; Wharton on Neg., 
 §§ 134, 138 ; Shear. & Redf. on Neg., 
 §33- 
 
§ II.] THE GENERAL RULE. 35 
 
 one thing, and causal connection an essentially different 
 thing. In order to avail the defendant anything there 
 must be on the part of the plaintiff, not only negligence 
 in the juridical sense, but contributory negligence, and in 
 order to be contributory, as the law understands that 
 limitation, there must be, as we have seen, a true proxi- 
 mate causal connection between the negligence and the 
 injury. Collateral negligence, by which is meant such 
 negligence as is neither a cause nor a condition of the 
 injury, is not material,* neither is remote negligence, which 
 is described as a condition and not a cause of the catas- 
 trophe, nor are even collateral violations of law, if they 
 do not legally contribute to the injury, a defense.* 
 
 What the causal connection between the plaintiff's 
 negligence and his injury must be, if it is to amount to 
 a defense to his action, has been precisely defined by the 
 courts. His negligence need not be the sole proximate 
 cause of the injury on the one hand,* nor is he required 
 to be wholly free even from slight negligence on the other 
 hand.* Those cases which hold that the plaintiff must be 
 entirely free from negligence, and that the injury must be 
 wholly due to the defendant's negligence,^ have not been 
 
 " Penn. R. R. Co. w. Righter, 42 N. Mukwa,_4o Id. 35; Baltimore, &c., 
 
 J. Law, 280; Hayes z/.42d st. R. R. R. R. v. Fitzpatrick, 35 Md. 32; 
 
 Co., 14 N. Y. Week. Dig. 28; Gray v. Houston, &c., R. R. Co. v. Gorbett, 
 
 Scott, 66 Penn. St. 345. 49 Texas, 573 ; Kerwhacker v. Cleve- 
 
 " Steele v. Burkhardt, 104 Mass. land, &c., R. R. Co., 3 Ohio St. 172; 
 
 59; S. C. 6 Am. Rep. 191, and note; Manly v. Wilmington, &c., R. R. 
 
 Welch V. Wesson, 6 Gray. 505 ; Baker Co., 74 N. C. 655 
 
 V. Portland, 58 Me. 199; S. C. 4 Am. ' Phila., &c., R. R. Co. v. Boyer, 
 
 Rep. 274; Neanow v. UUech, 46 Wis. 97 Penn. St. 91 ; New Jersey Express 
 
 581. Co. V. Nichols, 33 N. J. Law, 434; 
 
 ' Radley v. London, &c., R. R. Co., (but see Runycn v. Central R. R. Co., 
 
 L. R. 9 Exch. 91 ; s. C. 43 L. J. (Exch.) 25 Id. 556, and Teller v Northern R. 
 
 73; McAnnich v. Miss., &c.. R. R. R. Co., 30 Id. 188); Toledo, &c., R, 
 
 Co., 20 Iowa, 338; Muldowney v. R. Co.w. Goddard, 25 Ind. 185; Wilds 
 
 Illinois, &c., R. R. Co., 39 Id. 615. v. Hudson River R. R. Co., 24 N. Y. 
 
 'Bridge v. Grand Junction Ry. 430 ; GriflFen w. New York, &c., R. R., 
 
 Co. 3 Mee. & W. 244; Cremer v. 40 Id. 34; Vanderplank v. Miller, 
 
 Portland, 36 Wis. 92 ; Hammond v. Moody & M. 169. 
 
36 THE GENERAL RULE. [§ II. 
 
 generally followed. It is not, however, sufficient that the 
 plaintiff's negligence should have contributed merely to 
 aggravation of the injury without having contributed to 
 the happening of the accident* The true rule is, that if 
 the negligence of the plaintiff contributed in any degree 
 to cause or occasion the accident, there can be no recov- 
 ery. The law refuses to apportion damages in such a case 
 or to weigh the wrong of one party over against the fault 
 of the other, and thus strike a book-keeper's balance, and 
 accordingly, when the plaintiff's negligence is in any de- 
 gree, however small, contributory to the injury he has no 
 remedy.* 
 
 This is of the very essence of the law of contributory 
 negligence. The rule is sometimes said to be that it must 
 appear, in order to defeat the right of action, that, but 
 for the plaintiff's negligence operating as an efficient cause 
 of the injury, in connection with the fault of the defend- 
 ant, the injury would not have happened.® And so it is 
 
 ' Sills V. Brown, 9 Car. & P. 601 ; Dec. 47, and the note ; O'Brien v. 
 
 Stebbensw. Central R. R., 54 Vt. 464; Phila., &c., R. R. Co., 3 Phila. 76; 
 
 S. C. 41 Am. Rep. 855; Gould w. Mc- Catawissa R. R. Co. v. Armstrong, 
 
 Kenna, 86 Penn. St. 297; s. C. 27 49 Penn. St. 186; Stiles w. Geesey, 71 
 
 Am. Rep. 705 ; Secord v. St. Paul, Id. 439; Needham v. San Francisco, 
 
 &c., Ry. Co., 5 McCrary, 515; Shear. &c., R. R. Co., 37 Cal. 409; Flem- 
 
 & Red. on Neg., § 32, and cases cited ming v. Western, &c , R. R. Co., 49 
 
 in their note ; Wharton on Neg., § 868, Id. 253 ; Heame v. Southern, &c., R. 
 
 et seq. R. Co., 50 Id. 482; Coombs v. Pur- 
 
 " Dowell V. General Steam Naviga- rington, 42 Me. 332 ; Murphy v. 
 tionCo., SEI. & Bl. 195; Witherley Deane, loi Mass. 455; Willard v. 
 V. Regents Canal Co., I2 C. B. (N. Pinard. 44 Vt. 34; Munger w. Tona- 
 S.) 2; s. C. 6 L. T. (N. S.) 255, 3 wanda, &c., R. R. Co., 4 N. Y. 349; 
 Fost. & Fm., 61 ; Lack v. Seward, 4 Crandell v. Goodrich Trans. Co., 11 
 Car. & P. 106 ; Luxford v. Large, 5 Biss. 516; S. C. 16 Fed. Rep. 75. 
 Id. 421 ; Woolf «/. Beard, 8 Id. 373 ; » Paducah, &c., R. R. Co. v. Hoehl, 
 Vennall v. Gamer, i Cromp. & M. 21 ; 12 Bush (Ky.), 41 ; Kentucky, &c., R. 
 Kent V. Elstob, 3 East, 18; Cremer v. R. Co. v. Thomas, 79 Ky. 160; S. C. 
 Portland, 36 Wis. 92; Otis v. Janes- 42 Am. Rep. 208; Houston, &c.. R. 
 ville, 47 Id. 422; Knight v. Ponchar- R. Co. v. Clemmons, 55 Texas,' 88; 
 train R. R. Co., 23 La. Ann. 462; S. C. 40 Am. Rep. 799; Hickeyw. Bos- 
 Johnson V. Canal, &c., R. R. Co., 27 ton, &c., R. R. Co., 14 Allen, 429; 
 Id. S3; Laicher v. New Orleans, &c., Pennsylvania R. R. Co. v. Langdon, 
 R, R. Co., 28 Id. 320; Broadwell v. 92 Penn. St. 21; s. C. 37 Am. Rep. 
 Swigert, 7B. Mon. 39; s. C. 45 Am. 651; Colorado, &c., R. R. Co. v. 
 
§ II.] THE GENERAL RULE. 37 
 
 said that the negligence of the plaintiff must " directly" 
 contribute to the happening of the injury or the plaintiff 
 may have his action.* 
 
 However it may have been expre.ssed, the principle 
 underlying all these decisions seems to be, and verily it 
 is the only sound basis upon which they can rest, that 
 whenever the plaintiff's case shows any want of ordinary 
 care under the circumstances, even the slightest, contrib- 
 uting in any degree, even the smallest, as a proximate 
 cause of the injury for which he brings his action, his right 
 to recover is thereby destroyed. Anything more than 
 this imposes upon the plaintiff the duty of exercising 
 more than ordinary care, and refuses him a remedy for 
 injuries that others inflict upon him ; and anything less 
 than this, covered up never so mistily in belabored and 
 confusing legal phraseology, imposes upon the defendant 
 the duty of exercising more than ordinary care, requires 
 him to take better care of the plaintiff than the law re- 
 quires the plaintiff to take of himself, and compels 
 him to pay damages for injuries that he did not inflict. 
 There can be no middle ground ; either the truth of these 
 elementary propositions must be conceded or the whole 
 theory of our modern law of contributory negligence 
 must be abandoned. Without this it is a theory of op- 
 pression, and injustice. There is no room for it in the 
 common law. 
 
 Holmes, 5 Colo. 197 ; Murphy w. Deane, 740 ; s. C. J Id. 573 ; Johnson v. Hud- 
 
 loi Mass. 455; S. C. 3 Am. Rep. 390; son River R. R., 20 N. Y. 6$ ; Norris 
 
 Richmond, &c., R. R. v. Morris, 31 v. Litchfield, 35 N. H. 271 ; Cleve- 
 
 Gratt 200; Id. v. Anderson, 31 Id. land, &c., R. R. Co. v. Teny, 8 Ohio 
 
 812; Wood V. Jones (La.), 15 Rep. St 570; The Farmer v. McCraw, 26 
 
 555; Railioad Co. -v. Jones, 95 U. S. Ala. 189; McNaughtonw. Caledonian 
 
 439; Runyon v. Central R. R. Co., 25 R. R. Co. (Scotch), 21 Dunl. B. & M. 
 
 N. J. Law, 556 ; Moore v. Id., 24 Id. 160; S. C. 31 Jur. 94; Hay's Dec. 260; 
 
 268; Telfer v. Northern, &c., R. R. Shear. & Red. on Neg., § 33 But see 
 
 Co., la Id. 188: Wharton on Neg., contra. Button v. Hudson River R. 
 
 § 32i R., 18 N. Y. 248. 
 ' TuflF V. Warman, 2 C. B. (N. S.) 
 
38 THE GENERAL RULE. [§ 12. 
 
 (A.) Particular Considerations Affecting the 
 Plaintiff's Right to Recover. 
 
 § 12. Plaintiff'"' s previous knowledge. — Knowledge 
 on the part of the plaintiff as to the dl&nger to which he 
 is exposed, or, what is the same thing in law, a legal 
 obligation to know of it, is an essential element in the 
 case, when contributory negligence is the issue. The 
 law holds no one responsible for exposing himself to a 
 danger of which he knew nothing, and of which he was 
 under no obligation to inform himself. We must use 
 ordinary care and prudence to avoid the ordinary and 
 usual perils that beset us, but we are not bound to guard 
 against those which we have no reason, under the circum- 
 stances, to suspect.^ Hence, knowledge of the probable 
 danger, or a sufficient reason to apprehend it, is essential 
 to constitute contributory negligence. When it appears 
 that the plaintiff has suffered an injury at the hands of the 
 defendant from a cause which neither of them knew, or 
 had reason to believe would produce the result, it is an 
 inevitable accident, and the defendant is not responsible. 
 No one is juridically responsible and the damage must 
 lie where it falls. In the language of Chief Justice 
 Nelson, of New York : " No case or principle can be 
 found, or if found can be maintained, subjecting an indi- 
 vidual to liability for an act done without fault on his 
 
 part All the cases concede that an injury 
 
 arising from inevitable accident, or which in law or 
 
 ■ Jeffrey v. Keokuk, &c., R. R. Fitzhugh, 2 Lea, 307 ; McGuire v. 
 
 Co., 56 Iowa, 546 ; Langan -u. St. Spence, 91 N. Y. 303 ; McGary v. 
 
 Louis, &c., R. R. Co., 72 Mo. 392; Loomls, 63 N. Y. 104 ; S. C. 20 Am. 
 
 Thirteenth Street R. R. Co. v. Boud- Rep. 510 ; Vamey v. Manchester. 58 
 
 rou, 92 Penn. St. 475 ; S. C. 37 Am. N. H. 430 ; S. C. 42 Am. Rep. 592 ; 
 
 Rep. 707; Towler v. Baltimore, &c., Murray v. McShane, 52 Md. 217; S. 
 
 R. R. Co., 18 West Va. 579 ; Grayz/. c. 36 Am. Rep. 367. 
 Scott, 66 Penn. St. 345; Dush v. 
 
§ 12.] THE GENERAL RULE. 
 
 39 
 
 reason is the same thing, from an act that ordinary human 
 care and foresight are unable to guard against, is but the 
 misfortune of the sufferer, and lays no foundation for 
 legal responsibility." ^ And so, by parity of reasoning, 
 when a plaintiff suffers an injury at the hands of a defend- 
 ant, and it appears that the sufferer neither knew of the 
 danger to which his conduct exposed him, nor had any 
 reasonable ground to apprehend it, he is not guilty of 
 contributory negligence, and if the negligence of the 
 defendant is established, he may recover. It is upon this 
 principle that the law refuses to impute negligence to 
 persons of unsound mind, and to idiots and infants. 
 
 While it is unquestionably true that one may volun- 
 tarily and unnecessarily expose himself, or his property, 
 to danger without thereby becoming guilty of contribu- 
 tory negligence as matter of law,** it is, nevertheless, an 
 established rule that, where one does knowingly put 
 himself or his property in danger, there is a presumption 
 that he, ipso facto, assumes all the risks reasonably to be 
 apprehended from such a course of conduct,* as where 
 one goes voluntarily upon a railway track, without keep- 
 ing watch, at a point where it is known to be especially 
 dangerous,* or ventures upon a bridge, track, or highway 
 which he knows to be defective or unsafe.^ And where 
 
 ' Harvey v. Dunlop, Lalor's Sup., St. 6i6 ; S. C. 47 Am. Rep. 739 ; 
 
 Hill & Denio, 193. Coolett v. Leavenworth, 27 Kan. 672; 
 
 ' Dublin, &c., Railway Co. v. Slat- Mehan v. Syracuse, &c., R. R. Co., 
 
 tery, 3 L. R. App. Cas. 1155 ; Albion 73 N. Y. 585 ; Mansfield, &c., Coal 
 
 V. Hetrick, 90 Ind. 545; Jeffrey v. Co. v. McEnery, 91 Penn. St. 185; 
 
 Keokuk, &c., R. R. Co., 56 Iowa, 546. S. C. 36 Am. Rep. 662. See, also, 
 
 = Goldstein v. Chicago, &c., R. R. Lancaster v. Kissenger, 12 Rep. 635; 
 
 Co., 46 Wis. 404 ; Lake Shore, &c., Macomb v. Smithers, 6 Brad. 470; 
 
 R. R. Co. V. Clemens, 5 Brad. 77 ; Albion v. Hetrick, 90 Ind. 545 ; s. C. 
 
 Palmer v. Bearing, 17 Week. Dig. ^46 Am. Rep. 230 ; Miller v. Union 
 
 (N. Y.) 145. Pacific R. R. Co., 2 McCrary, 87; 
 
 * Baltimore, &c , R. R. Co. v. De- Wills v. Linn, &c., R. R. Co., 129 
 pew, 40 Ohio St. ; Pittsburgh, &c., Mass. 351 ; Lehigh Valley Coal Co. v. 
 R. R. Co. V. Collins, 87 Penn. St. Jones, 6 Rep. 125 ; Lake Shore, &c., 
 405; s. C. 30 Am. Rep. 371. R. R. v. Roy, 5 Brad. 82 ; Marquette, 
 
 * City of Erie v. Magill, loi Penn. &c., R. R. v. Spear, 44 Mich. 
 
40 
 
 THE GENERAL RULE. [§ 13- 
 
 one knowing the danger temporarily forgets it, and in 
 consequence suffers, his forgetfulness will not avail him 
 as an excuse. What he knows he must remember at his 
 peril, and not to remember is contributory negligence if 
 it occasions the injury.^ Knowledge, however, in this 
 respect, does not necessarily constitute contributory 
 negligence. It is plain that one may exercise due care 
 with full knowledge of the danger to which he is exposed 
 or to which he lawfully exposes himself. This certainly 
 is not contributory negligence. When knowledge is 
 fastened upon the plaintiff, it is presumptive evidence of 
 contributory negligence. But it is a disputable presump- 
 tion and may be rebutted by proper evidence of the 
 exercise of ordinary care under the circumstances.* 
 
 § 13. Plaintiff'' s failure to anticipate the fault of the 
 defendant. — It is sometimes said that, inasmuch as there 
 is a natural presumption that every one will act with due 
 care, it cannot be imputed to the plaintiff, as negligence, 
 that he ■ did not anticipate that another person would 
 violate the law, or would act negligently in a given partic- 
 
 169 ; S. C. 38 Am. Rep. 142; Steb- v. Bailey, 131 Id. 169; S. C. 41 Am. 
 
 bins V. Township of Keane, Sup. Ct. Rep. 219; Osage City v. Brown, 27 
 
 of Mich., 22 N. W. Rep. 37 ; Wohl- Kan. 74; Wheeler v. Westport, 30 
 
 fahrt V. Beckert, 92 N. Y. 490 ; S. C. Wis. 392 ; Turner v. Buchanan, 82 
 
 44 Am. Rep. 406 ; Griffiths w. Gidlow, Ind. 147; S. C. 42 Am. Rep. 485; 
 
 3 Hurl. & N. 648 ; Smith v. St. Law- Henry Co., &c., Co. v. Jackson, 86 
 
 rence, &c., Co., L. R. 5 P. C. 308; Ind. iii ; S. C. 44 Am. Rep. 274; 
 
 Caswell V. Worth, 5 El. & Bl. 849. Town of Albion v. Hetrick, 90 Ind. 
 
 ' Baltimore, &c., R. R. Co. v. 545 ; S. C. 46 Am. Rep. 230 ; Estelle 
 
 Whitacre, 35 Ohio St.627; Brukerw. v. Lake Crystal, 27 Minn. 243; 
 
 Covington, 69 Ind. 33; s. C. 35 Am. Thomas v. Mayor, &c., 28 Hun. no; 
 
 Rep. 202; Bassett v. Fish, 75 N. Y. S. C. 15 Week. Dig. (N.Y.) 378; Evans 
 
 303; Weed V. Balston Spa, 76 Id. w. City of Utica, 69 N. Y. 166; S. C. 
 
 329- 25 Am. Rep. 165 ; Bassett v. Fish, 
 
 « Reed v. Northfield, 13 Pick. 94; ,75 N. Y. 303; Weed v. Balston Spa, 
 
 S. C. 23 Am. Dec. 662 ; Frost v. 76 Id. 329 ; Ochsenbein v. Shapley, 
 
 Waltham, \^ Allen, 86; Snow v. 85 N. Y. 214. See, also, Schaefler w. 
 
 Housatonic R. R. Co., 8 Id. 450; Sandusky,33 Ohio St. 246; Pittsburgh, 
 
 Coombsz/. New Bedford Cordage Co., &c., R. R. Co. v. Taylor, 104 Penn. 
 
 102 Mass. 58s; S. C. 3 Am. Rep. 506; St. 306; S. C. 49 Am. Rep. 580. 
 Marble v. Ross, 124 Mass. 44; Dewire 
 
§ 1 3-] THE GENERAL RULE. 
 
 41 
 
 ular, and in accordance with such an anticipation provide 
 against the consequences of it. A long line of authorities 
 is at hand in support of this proposition,^ and if it means 
 that it is not contributory negligence not to look out for 
 danger, when there is no reason to apprehend -any , it is a 
 sound rule of law. That all men will under all circum- 
 stances act with due care may be a presumption of law. It 
 is after the analogy of the presumption in the criminal law 
 as-to innocerice, and therein lies the fallacy. Presumptions, 
 or rules of evidence, applicable to guilt and innocence 
 are obviously wholly inapplicable to care and carelessness. 
 There is no sound analogy between carefulness and inno- 
 cence, or guilt and negligence in this respect, and it is 
 submitted that it is not a presumption of fact that men 
 will exercise care rather than carelessness, on the average, 
 under a given set of circumstances. Men of ordinary 
 carefulness do not act upon such a presumption in the 
 general conduct of their affairs. It is a duty to some 
 extent to anticipate the probable carelessness and wrong 
 doing of others.'* The average prudent man does it every 
 day, in watching the details of his business, in warning his 
 employees, in insuring his property and his life, in 
 bolting his doors at night, and, in short, in about every- 
 thing he does, that marks him as a prudent and cautious 
 man, and distinguishes him from the most careless and 
 
 ' Ernst V. Hudson River R. R. inson v. Western, &c., R. R. Co., 48 
 
 Co., 35 N. Y. 9; Newson v. New Id. 409; Moulton v. Aldrich, 28 Kan. 
 
 York, &c., R. R. Co.. 29 N. Y. 383; 300; Langan w. St. Louis, &c., R. R. 
 
 Harpell v. Curtis, i E. D. Smith, 78 ; Co., 72 Mo. 392 ; Gee v. Metropolitan, 
 
 Cleveland, &c., R. R. Co. v. Terry, &c., R. R. Co., L. R., 8 Q. B. i6i ; 
 
 8 Ohio St. 570 ; Fox v. Sackett, 10 Vennall v. Garner, i Cromp. & M. 
 
 Allen, 53S; Fisk v. Wait, 104 Mass. 21; The Mangerton, I Swab. 120; 
 
 71 ; Reeves v. Delaware, &c., R. R. Yoyv. Brighton, &c., R. R. Co., 18 C. 
 
 Co., 30 Penn. St. 454; Brown v. Linn, B. (N. S.) 225; Clayardsw. Dethick, 12 
 
 31 Id. 510 ; Kellogg v. Chicago, &c., Q. B. 439; Shear. &Red. on Neg., § 31; 
 
 R. R. Co., 26 Wis. 223; Damour». Whart. on Neg., §§ 74-78 incl ; Thornp. 
 
 Lyons, 44 Iowa, 276 ; Fraler v. Sears on Neg.. 1172; i Sedg. on Dam., 170, 
 Water Co., 12 Cal. 555; Shea v. Pot- » Texas, &c., R. R. Co. v. Young, 
 
 rero, &c., R. R. Co., 44 Id. 414; Rob- 60 Texas, 201. 
 
42 THE GENERAL RULE. [§ 14' 
 
 hapless of his neighbors. Not to exercise this measure 
 of carefulness is to fall below the standard that men call 
 "ordinary care." In a great variety of instances of 
 everyday occurrence, to proceed upon the presumption 
 of others' carefulness is nothing short of gross negligence. 
 Prudent men, on the average, instead of acting, in gen- 
 eral, upon any such happy-go-lucky presumption as 
 this, rather proceed upon the opposite presumption, 
 and conduct themselves according to the maxim .of 
 the Kentucky backwoodsman, " Be sure you are right, 
 then go ahead." ^ The rule that a plaintiff must ex- 
 ercise ordinary care under the circumstances in or- 
 der to escape the imputation of contributory negligence 
 will more often require him to act upon a presumption of 
 the probable or possible negligence, or wrong doing, of 
 others, than it will justify him in acting upon the contrary 
 presumption. This, in the author's judgment, is a view 
 that commends itself to the common experience and 
 common sense of the average of mankind, though it has 
 found little sanction at the hands of the judges.* 
 
 § 14. Plaintiff acting erroneously under the impulse 
 of fear produced by the defendant. — When a plaintiff", 
 through the negligence of the 'defendant, is placed in a 
 situation where he must adopt a perilous alternative, or 
 where, iti the terror of an emergency for which he is not 
 responsible, and for which the defendant is responsible, 
 he acts wildly or negligently, and suffers in consequence, 
 such negligent conduct, under these circumstances, is 
 not contributory negligence, for the reason that persons 
 in great peril are not to be required to exercise all that 
 
 ' Attributed to Davy Crockett. 60 Texas, 201, suggests the theory I 
 
 " The Supreme Court of Texas, in have developed, but, as far as I have 
 
 the case of Texas, &c., R. R. Co. v. searched, no other reported case has 
 
 Young, decided in 1883, reported in been found precisely in point. 
 
§14.] 
 
 THE GENERAL RULE. 
 
 43 
 
 presence of mind and carefulness which are justly re- 
 quired of a careful and prudent man under ordinary 
 circumstances. In such a case the negligent act of the 
 defendant is the proximate cause of the injury, and the 
 plaintiflf may have his action.^ Says Lord Ellenborough : 
 "If I place a man in such a situation that he must 
 adopt a perilous alternative, I am responsible for the 
 consequences." ^ And this is equally the rule even though 
 it turn out that no injury would have been sustained 
 had there been no attempt to escape the threatened 
 danger.* The principle is that errors in judgment on 
 
 ' Jones V. Boyce, l Stark. 493 ; 
 Wright V. Great Northern Ry. Co., 8 
 Ir. L. R. (C. P. Div.) 257 ; WooUey 
 V. Scovell, 3 Man. & R. (K. B.) 105 ; 
 Buel V. New York, &c., R. R. Co., 31 
 N. Y. 314; Filer v. Id., 49 Id. 47; 
 Coulter V. Am., &c.. Express Co., 56 
 Id. 585 ; Pittsburgh v. Grier, 22 Penn. 
 St. 54 ; Johnson v. West Chester, &c., 
 R. R. Co., 70 Id. 357 ; Pennsylvania 
 R. R. Co. V. Werner (Penn.), 8 Rep. 
 59 ; Lancaster v. Kissinger (Penn. J, 
 12 Rep. 635 ; Pittsburgh, &c., R. R. 
 Co. V. Taylor, 104 Penn. St. 306 ; S. 
 C. 49 Am. Rep. 580; Cook v. Parham, 
 24 Ala. 21 ; Karr v. Parks, 40 Cal. 
 188; Indianapolis, &c., R. R. Co. v. 
 Stout, S3 Ind. 143 ; Cook v. Central, 
 &c, R. R. Co. (Ala.), 12 Rep. 356; 
 Gothard v. Alabama, &c., R. R., 67 
 Ala. 114; Frick v. Potter, 17 111. 406; 
 Galena, &c., R. R. Co. v. Yarwood, 
 17 111. 500 ; Chicago, &c., R. R. Co. 
 V. Becker, 76 111. 25 ; Illinois, &c., R. 
 R. Co. V. Able, 59 Id. 131 ; Wesley 
 Coal Co. V. Herler, 84 Id. 126; In- 
 galls V. Bills, 9 Mete. l; S. C. 43 Am. 
 Dec. 346; Lund v. Tyngsboro, 11 
 Cush. 563 ; S. C. 59 Am. Dec. 1 59 ; 
 Brooks w. Petersham, 16 Gray, 181 ; 
 Eastman v. Sanborn, 3 Allen, 596; 
 Stevens v. Boxford, 10 Id. 25 ; Sears 
 V. Dennis, 105 Mass. 312 ; Linnehan 
 V. Sampson, 126 Mass. 506 ; S. c. 30 
 Am. Rep. 692 ; Mark v. St. Paul, &c., 
 R. R. Co., 30 Minn. 493; Card v. 
 Ellsworth, 65 Me. 547 ; S. C. 20 Am. 
 
 Rep. 722 ; Page v. Bucksport, 64 Me. 
 51 ; Stickney v. Maidstone, 30 Vt. 
 738 ; Southwestern, &c., R. R. v. 
 Paulk, 24 Ga. 356 ; Stokes v. Salton- 
 stall, 13 Peters, 181 ; Haft v. Minne- 
 apolis, &c., R. R. Co , 4 McCrary, 
 622; Cunningham z/. Chicago, &c., R. 
 R. Co., 5 Id. 465 ; Stevenson v. Chi- 
 cago, &c., R. R. Co., 18 Fed. Rep. 
 493 ; Wharton on Neg., §§ 305, 377 ; 
 Thomp. on Neg., 1092, 1174. 
 
 "^ Jones V. Boyce, supra. 
 
 ' Brown v. Chicago, &c., R R. Co., 
 54 Wis. 342 ; S. C. 41 Am. Rep. 41 
 (and note); Gumz v. Chicago, &c., R. 
 R. Co., 52 Wis. 672 ; Schultz v. Id., 
 44 Id. 638 ; Turner v. Buchanan, 82 
 Ind. 147 ; S. C. 42 Am. Rep. 485 ; Iron 
 Railway Co. v. Mowery, 36 Ohio St. 
 418; s. C. 38 Am. Rep. 597; Wilson 
 V. Northern Pacific R. R. Co., 26 
 Minn. 278 ; Roll v. Northern, &c., R. 
 R. Co., 15 Hun, 496; Twomley z/. 
 Central Park R. R. Co., 69 N.Y. 158; 
 S. C. 25 Am. Rep. 162 ; Bernhard v. 
 Rensselaer, &c., R. R. Co., i Abb. 
 App. Dec. 131; Rexter v. Starin, 73 
 N. Y. 601 ; McKinney v. Neil, i Mc- 
 Lean, 540. (See, also, Commonwealth 
 V. Boston, &c., R. R. Co., 129 Mass. 
 500 ; s. C. 37 Am. Rep. 382, and note ; 
 Pennsylvania R. R. Co. v. Raney, 89 
 Ind. 453; S. C. 46 Am. Rep. 173 ; Cot- 
 trill z/. Chicago, &c., R. R. Co., 47 Wis. 
 634 ; S. C. 32 Am. Rep. 796 ; Linne- 
 han V. Sampson, 126 Mass. 506 ; S. C. 
 30 Am. Rep. 692, and Eckert v. Long 
 
44 THE GENERAL RULE. [§ 1 4. 
 
 the part of a plaintiff, in trying to escape imminent 
 danger brought about by the defendant's negligence, do 
 not constitute contributory negligence, if the acts done 
 were such as ordinarily prudent persons might have 
 been expected to do under like circumstances, even 
 though the injury would not have happened if the acts 
 had not been done. So, where a passenger, apprehend- 
 ing a collision, rushes out of the car, where he would 
 have been safe, and goes upon the platform, where he 
 is hurt, his act is, upon this principle, justifiable, and he 
 has his action for damages against the railway company ; ^ 
 and where one, being lawfully upon a railway track when 
 a train suddenly appears, jumps the wrong way in the 
 excitement of the moment, it is not contributory negli- 
 gence." And the rule is also frequently applied where 
 persons leap from trains, or vehicles on the highway, 
 under apprehension of injury from collision or derailment, 
 or other accident, when, if they had not done so, they would 
 have escaped unhurt.* The question in these cases is not 
 what a prudent man under ordinary circumstances would 
 have done, for the suddenness of the emergency, the excite- 
 ment, and the influence of terror, must be taken into the 
 account ;* and what other persons did at the same time 
 
 Island R. R. Co., 43 N. Y. 502 ; S. C. v. Rhodes, 56 Ga. 645 ; Turner v. 
 
 3 Am. Rep. 721, and the cases gener- Buchanan, 82 Ind. 147 ; s. C. 42 Am. 
 
 ally cited supra.) Rep. 485 ; Bell v. New York, &c., R. 
 
 'Iron Railway Co. w. Mowery, j«- R. Co., 17 Week. Dig. (N. Y.) 79; 
 
 pra, 36 Ohio St. 418. Cook v. Central R. R. Co. (Ala.), 12 
 
 'Indianapolis, &c., R. R. Co. v. Rep. 356; Cuyler w. Decker, 20 Hun, 
 
 Carr, 35 Ind. 510; Coulter v. Ameri- 173; Siegrist w. Arnot, 10 Mo. App. 
 
 can, &c., Express Co., 56 N. Y. 585 ; 197. 
 
 Schultz V. Chicago, &c., R. R. Co., 44 • Johnson v. West Chester, &c., R. 
 
 Wis. 638. R. Co., 70 Penn. St. 357 ; Linnehan 
 
 " Buel i: New York, &c., R. R. Co., v. Sampson, 126 Mass. 506 ; s. C. 30 
 
 31 N. Y. 314; Twomley v. Central Am. Rep. 692 ; Pittsburgh, &c.,R.R. 
 
 Park, &c., R. R. Co., 69 Id. 158; s. Co. v. Rohrman, 13 Week. Notes 
 
 C. 25 Am. Rep. 162 ; Dyer v. Erie Ry. Cas. 258; S. C. 29 Albany Law Jour. 
 
 Co., 71 N. Y. 228 ; Wilson v North- 97 ; Karr v. Parks, 40 Cal. 188; Ga- 
 
 ern Pacific R. R. Co., 26 Minn. 278; lena, &c., R. R. Co v. Yarwood, 17 
 
 Mobile, &c., R. R. Co. v. Ashcraft, 111. 500 ; Indianapolis R. R. Co. v. 
 
 48 Ala. IS ; Georgia, &c.. Banking Co. Stout, 53 Ind. 143. 
 
§ 1 5-] THE GENERAL RULE. 45 
 
 may be given in evidence to show what may have been 
 reasonably prudent under the circumstances.^ In the 
 New York case just cited it appears that the driver of 
 one of the defendant's street cars, in which the plaintiff 
 and several other persons were passengers, attempted to 
 cross the track of the New York Central and Hudson 
 River Railroad, upon which a train was rapidly approach- 
 ing, and that the passengers in the car, seeing the danger 
 of being run over, rushed out of the car, with a single 
 exception, and that the plaintiff in so doing fell and was 
 hurt. The car, however, passed the track in safety and 
 avoided the threatened collision. Upon the question of 
 the prudence of leaving the car, evidence as to the con- 
 duct of the other passengers was held competent. 
 
 § 15. Plaintiff acting erroneously in trying to save 
 human life. — So, also, upon a somewhat analogous prin- 
 ciple, when one risks his life, or places himself in a posi- 
 tion of great danger, in an eflfort to save the life of 
 another, or to protect another who is exposed to a sudden 
 peril, or in danger of great bodily harm, it is held that 
 such exposure and risk for such a purpose is not negli 
 gent. The law has so high a regard for human life that 
 it will not impute negligence to an effort to preserve it, 
 unless made under such circumstances as to constitute 
 rashness in the judgment of prudent persons.* Eckert v. 
 Long Island R R. Co.^ is perhaps the leading authority 
 in point. In that case it appears that the plaintiff intes- 
 tate, while endeavoring to rescue a child from being run 
 
 • Twomley v. Central Park, &c., R. son, 126 Mass. 506; S. C. 30 Am. Rep. 
 
 R. Co., 69 N. Y. 158; S. C. 25 Am. 692; Cottrill v. Chicago, &c., R. R. 
 
 Rep. 162 ; MobUe, &c., R. R. Co. v. Co., 47 Wis. 634; S. C. 32 Am. Rep, 
 
 Ashcraft, 48 Ala. 15. 796; Pennsylvania Co. v. Raney, 89 
 
 « Eckert v. Long Island R. R. Co., Ind. 453 ; s. C. 46 Am. Rep. 173. 
 
 57 Barb. 555 ; affirmed, 43 N. Y. 503 ; s. » Supra. 
 C. 3 Am. Rep. 721 ; Linnehan v. Samp- 
 
46 THE GENERAL RULE, [§ 1 5. 
 
 over by an approaching railway train, was himself struck 
 by the train and so injured that he died. Mr. Justice 
 Grover, in delivering the opinion of the court, said : 
 " The important question in this case arises upon the 
 exception taken by the defendant's counsel to the denial 
 of his motion for a nonsuit made upon the ground that 
 the negligence of the plaintiff's intestate contributed to 
 the injury that caused his death. The evidence showed 
 that the train was approaching in plain view of the de- 
 ceased, and had he, for his own purposes, attempted to 
 cross the track, or with a view to save property placed 
 himself voluntarily in a position where he might have re- 
 ceived an injury from a collision with the train, his con- 
 duct would have been grossly negligent, and no recov- 
 ery could have been had for such injury. But the evi- 
 dence further showed that there was a small child upon 
 the track, who, if not rescued, must have been inevitably 
 crushed by the rapidly approaching train. This the de- 
 ceased saw, and he owed a duty of important obligation 
 to this child to rescue it from its extreme peril if he could 
 do so without incurring great danger to himself. Negli- 
 gence implies some act of commission or omission wrong- 
 ful in itself. Under the circumstances in which the deceased 
 was placed it was not wrongful in him to make every ef- 
 fort in his power to rescue the child, compatible with a 
 reasonable regard for his own safety. It was his duty to 
 exercise his judgment as to whether he could probably 
 save the child without serious injury to himself. If from 
 the appearances he believed that he could, it was not 
 negligence to make an attempt so to do, although be- 
 lieving that possibly he might fail and receive an injury 
 himself. He had no time for deliberation. He must act 
 instantly if at all, aS a moment's delay would have been 
 fatal to the child. The law has so high a regard for hu- 
 man life that it will not impute negligence to an effort to 
 
§ 1 5-] THE GENERAL RULE. 
 
 47 
 
 preserve it, unless made under such circumstances as to 
 constitute rashness in the judgment of prudent persons. 
 For a person engaged in his ordinary affairs, or in the 
 mere protection of property, knowingly and voluntarily 
 to place himself in a position where he is liable to re- 
 ceive a serious injury, is negligence, which will preclude 
 a recovery for an injury so received ; but when the ex- 
 posure is for* the purpose of saving life, it is not wrong- 
 ful, and therefore not negligent, unless such as to be 
 regarded either rash or reckless. The jury were war- 
 ranted in finding the deceased free from negligence un- 
 der the rule as above stated." There can be no doubt 
 as to the correctness of the conclusion reached in these 
 cases. In Pennsylvania Co. v. Raney,^ this rule is ap- 
 plied to the case of an engineer of a passenger train, 
 who stuck to his locomotive in the face of impending 
 death, and lost his life in an heroic attempt to save his 
 train and the lives of the passengers on board, when he 
 might easily, by jumping from the locomotive, have es- 
 caped personal injury.* In an earlier Indiana case,^ 
 however, a contrary doctrine is maintained, and it is 
 held that a son, who, to save the life of his aged fa- 
 ther, menaced by an approaching train, ran upon a rail- 
 way track, and was himself struck by the train and in- 
 jured, was guilty of such contributory negligence there- 
 by as barred his recovery. But this case does not com- 
 mend itself, and has not been followed.* On the contrary, 
 in some later cases, the Court of Appeals of New York 
 has taken the ground that, when such risks are assumed, 
 even to save property from destruction, allowance ought 
 
 • ' 89 Ind. 453 ; S. C. 46 Am. Rep. ' Evansville. &c., R. R. Co. v. Hi- 
 
 173. att, 17 Ind. 102. 
 
 " See, also, Cottrill v. Chicago, &c., * But see Gramlich v. Wurst, 86 
 
 R. R. Co., 47 Wis. 634, and S. C. 32 Penn. St. 74 ; S. C. 27 Am. Rep. 684. 
 Am. Rep. 796. 
 
48 THE GENERAL RULE. [§ 1 5- 
 
 to be made for the excitement under which one acts in 
 such a case, and that running into danger for this pur- 
 pose may not, in view of all the circumstances, be such 
 negligepce as will bar a recovery for a negligent injury.^ 
 And, upon the same theory, perhaps, it has been held 
 that when one, in the discharge of a legal duty, does an 
 act manifestly perilous, and suffers in consequence of the 
 negligence of another, he may have his action for the 
 damages he sustains.^ This is equivalent, it may be, to a 
 rule that doing one's duty in a lawful manner is not con- 
 tributory negligence, for in the Maine case just referred 
 to, it appears that a detective, in search for smugglers, 
 whose duty required him to go about upon a defective 
 wharf in the night, without carrying a lantern, which 
 would obviously defeat the purpose of his going, was in- 
 jured by falling into the water through an opening in the 
 wharf negligently left unguarded and unlighted by the 
 defendants. It was held that, inasmuch as the detective 
 was doing his duty, in a lawful manner, which was also 
 the only practicable manner of doing it at that time, he 
 might recover damages, whereas, it is plain that under 
 ordinary circumstances, to wander about at night upon a 
 dark wharf without a lantern, might be grossly negli- 
 gent.* The opinion of Barrows, J., in this case, is a full 
 and luminous presentation of the law in point. 
 
 The question whether the plaintiff's conduct in all the 
 cases referred to in this section was wanting in reasonable 
 prudence and caution in view of all the circumstances, is 
 not one of law, but of fact. It should be submitted to 
 the jury " as a question peculiarly for them to decide."* 
 
 1 Rexter v. Starin, 73 N. Y. 601 ; Thompson w. Hermann, 47 Wis. 602 ; 
 Wasmer v. Delaware, &c., R. R. Co., S. C. 32 Am. Rep. 784. 
 80 N. Y. 212 ; s. C. 36 Am. Rep. 608. 3 Low v. Grand Trunk R. R. Co., 
 
 " Low V. Grand Trunk R. R. Co., sufra. 
 72 Me. 313; S. C. 39 Am. Rep. 331; * Linnehan v. Sampson, 126 Mass. 
 
 506, supra ; s. C. 30 Aid. Rep. 692. 
 
§ 1.6.] THE GENERAL RULE. 49 
 
 " The questions," says Mr. Justice Barrows, in the very 
 able opinion, to which I have already referred,* " are not 
 of a character to be disposed of by a little neat logic. 
 They are rather, as remarked by the court in Elliott v. 
 Pray, lo Allen, 384, ' questions which can be best deter- 
 mined by practical men on a view of all the facts and 
 circumstances bearing on the issue.' " • 
 
 § 16. Plaintiff doing an illegal act. — It is no defense to 
 an action for liegligence that the plaintiff was engaged in 
 violating the law in a given particular at the time of the 
 happening of the accident, unless the violation of law was 
 a proximate and efficient cause of the injury.'' Some 
 mere collateral wrong-doing by the plaintiff, that has no 
 tendency to occasion the injury, cannot, of course, avail 
 the defendant through whose negligence the injury has 
 been suffered. Thus, for example, driving on the wrong 
 side of the road will not, as a matter of law, prevent a re- 
 covery in case of a collision. It is a circumstance to go 
 to the jury on the question of the plaintiff's negligence.' 
 So, also, one who places his wagon in the street for the 
 purpose of loading it, in such a position as to violate a 
 city ordinance, may, nevertheless, recover from one who 
 negligently runs into it,* ana in Baker v. Portland,® the 
 court says : [The fact that the plaintiff] " was smoking a 
 cigar in the streets, in violation of a municipal ordinance, 
 while it might subject the offender to a penalty, will not 
 
 1 Low V. Grand Trunk, &c., R. R. 46 Wis. 581 ; Klipper v. Coffey, 46 
 
 Co., supra. Md. 117; Albert v. Bleecker St R. 
 
 a'Spofford v. Harlow, 3 Allen, 176; R. Co., 2 DaJy, 389 ; Griggs w. Fleck- 
 Welch w. Wesson, 6 Gray, 305 ; Steele instein, 14 Minn. 81 ; Davidson v. 
 V. Burkhardt, 104 Mass. 59 ; S. C. 6 Portland, 69 Me. 116; s. C. 31 Am. 
 Am. Rep. 191; Hall v. Ripley, 119 Rep. 253; Streett w. Laumier, 34 Mo. 
 Mass. 135; Morton v. Gloster, 46 469. 
 
 Me. 520; Bigelow v. Reed, 51 Id. ' Spofford v. Harlow, supra. 
 
 325; Hamilton v. Goding, 55 Id. 428; * Steele v. Burkhardt, supra. 
 
 Baker v. Portland, 58 Id. 199; S. C 4 '58 Me. 199, supra. 
 Am. Rep. 7.74; Neanoww. UUech, 
 4 
 
50 THE GENERAL RULE. [§ l6. 
 
 excuse the town for a neglect to make its ways safe and 
 convenient for travelers, if the commission of the plaint- 
 iffs offense did not in any degree contribute to produce 
 the injury of which he complains." 
 
 This rule is especially applicable in cases where the 
 defendant's negligence is wilful or wanton. In those cases 
 the plaintiff's collateral fault, or violation of law, is least 
 of all a defense, as, for instance, where the parties were 
 trotting their horses, in competition, on a highway where 
 such high speed was forbidden by a municipal ordinance, 
 and the defendant wilfully ran into the plaintiff's sleigh 
 and caused him an injury, the plaintiff's unlawful act in 
 one particular was held not to exempt the defendant from 
 his obligation to respond in damages, for the injurious 
 consequences of his own illegal misbehavior in another.* 
 
 But when the plaintiff is obliged to lay the founda- 
 tion of his action in his own violation of law, he cannot 
 recover.* And when his illegal act also contributes to 
 produce the injury of which he complains, he has no ac- 
 tion unless the defendant acted wantonly,* but when the 
 defendant's conduct amounts to wilfulness, or a reckless 
 disregard of another's rights, it seems to be the doctrine of 
 the Massachusetts case just cited, that not even the unlaw- 
 ful character of the plaintiff's act, in addition to the fact 
 that it contributes to produce the injury, is sufficient to ex- 
 cuse the defendant. But, in Illinois, the illegal and fraud- 
 ulent character of the act — as where one traveling upon 
 
 1 Welch w. Wesson, 6 Gray, 505; also, Crosman w. City of Lynn, 121 
 Steele v. Burkhardt, 104 Mass. Mass. .301); Bosworth v. Swansey, 
 59; S. C. 6 Am. Rep. 191 ; Wallace 10 Mete. 363 ; s. C. 43 Am. Dec. 441 ; 
 V. Merrimack, &c., Nav. Co., 134 Woodpian w. Hubbard, 25 N. H. 67 ; 
 Mass. 95, and generally the cases Phalen z'. Clark, 19 Conn. 421; s. C. 
 cited, supra. jo Am. Dec. 253; Simpson v. Bloss, 
 
 2 Gregg V. Wyman, 4 Cush. 322 ; 7 Taunt. 246. 
 
 Way V. Foster, i Allen, 408 ; Smith » Bank v. Highland Street R. R. 
 
 V. Boston, &c., R. R. Co., 120 Mass. Co., 136 Mass. 485; Parker v. Nas- 
 
 490; s. C. 21 Am. Rep. 538; (but see, sua, 59 N. H. 402. 
 
§ 1 6.] THE GENERAL RULE. 5 1 
 
 a non-transferable free railroad pass, issued to another per- 
 son, and passing himself off as such person, was injured 
 by the negligence of the servants of a railway company — 
 is of itself held sufficient to prevent a recovery for such 
 injury, unless the negligence of the railway company was 
 so gross as to amount to wilfulness.^ 
 
 So, also, where one is on a train " stealing a ride," or 
 paying no fare through stealth or fraud, and is killed by 
 the wrongful act of the company his representatives can 
 recover no damages therefor." The soundness of the con- 
 clusions reached by the court in these cases may be fair- 
 ly questioned. The plaintiff's illegal act in riding upon 
 a pass which did not belong to him, or in riding without 
 paying fare, was in no possible way a cause of the injury 
 he sustained. It was purely a collateral violation of law, 
 and as such, upon principle, was no proper defense to the 
 action for negligence. 
 
 The Supreme Court of Georgia, in reconstruction 
 times, in a case in which their patriotism very far outran 
 their judgment, reached the astonishing conclusion that 
 an employee of a railway company, injured while the 
 train on which he was employed was engaged in trans- 
 porting troops and munitions of war for the Confeder- 
 ate States, could not recover damages against the com- 
 pany, if he was voluntarily so engaged for the purpose of 
 making war upon the Government of the United States.* 
 The court applied *he maxim " In pari delicto potior 
 est conditio defendentis et possidentis]' but whether it 
 proceeded upon the principle of this maxim, or upon any 
 other principle, it was wholly absurd to charge the em- 
 ployee with legal responsibility. Even if the company 
 were chargeable with fault, this man had not the remot- 
 
 1 Toledo, &c., R. R. Co. v. Beggs, 8i 111. 245; Chicago, &c., R. R. Co. 
 85 111. 80; S. C. 28 Am. Rep. 613. v. Michie, 83 111. 427. 
 * Toledo, &c., R.R. Co. v. Brooks, ' Wallace v. Cannon, 38 Ga. 199. 
 
52 THE GENERAL RULE. [§ 1 6. 
 
 est share in it. He was no more legally or morally re- 
 sponsible for the sort of freight the railway that employed 
 him transported, than for the perturbations of Jove's 
 satellites during the period of the civil war. His obliq- 
 uity was as great in one matter as ^the other. But, for 
 the purpose of the other view, granting never so much 
 fault on his part in the matter pretended, it was wholly 
 a collateral violation of law, which, as we have seen, is 
 not a defense in an action of negligence — as far removed 
 from being a cause of his injury as the east is from the 
 west. Into such vagaries and juridical nonsense have the 
 courts drifted in attempting refinements upon the ele- 
 mentary principles of the law of contributory negligence.^ 
 The rule that collateral violations of law shall not operate 
 as a defense in an action brought to recover damages oc- 
 casioned by the negligence of another, if it were thought 
 possible to impute fault to this employee, applied to this 
 case, would have given a correct result. And the other 
 undoubted rule that a train-man is not a fellow-servant 
 with the contracting freight agent, or superintendent of a 
 railroad, or with a military officer of the Confederate gov- 
 ernment, applied to the case in hand, would also have 
 given a proper result. If the servant had suffered by the 
 master's neglect, without contributing to his own injury, 
 he ought to have recovered, and, under a fair application 
 of the reasonable rules of law in point, he would have 
 recovered. » 
 
 It must, to continue, be remembered that when the 
 defendant's negligence is also a violation of law, that is to 
 say, when both plaintiff and defendant are doing an un- 
 lawful act at the time of the catastrophe, the defendant's 
 violation of law will not operate in favor of the plaintiff 
 
 1 Martin v. Wallace, 40 Ga. 52 ; Cannon v. Rowland, 34 Ga. 422 : S. C. 
 35 W. 105. 
 
§17.] 
 
 THE GENERAL RULE. 
 
 53 
 
 any more than that of the plaintiflF will in favor of the de- 
 fendant. In such a case, where the party injured has 
 been guilty of contributory negligence he cannot recover 
 on the ground that the defendant's negligence is a viola- 
 tion of law. Where, for example, a railroad train fails to 
 give proper signals, or those required by law, at a cross- 
 ing, and one is injured in attempting to cross without 
 looking up and down the track for a train, which is con- 
 tributory negjigence, the unlawful omission of the signals 
 is not a sufficient ground for a recovery non obstante} 
 
 § 1 7. Plaintiff a trespasser. — It is a general rule that 
 when the defendant's negligence is wilful, contributory 
 
 ' Meeks v. Southern Pacific R. R. 
 Co., 52 Cal. 602 ; Curry v. Chicago, 
 &c., R. R. Co., 43 Wis. 665 ; Chicago, 
 &c., R. R. Co. V. McKean, 40 111. 218; 
 Leduke v. St. Louis, &c., R. R. Co., 
 4 Mo. App. 485 ; Eaton v. Erie Ry. 
 Co., 51 N. Y. 544; Maginnis v. 
 eSIew York, &c., R. R. Co., 52 Id. 
 215 ; Hinckley z/. Cape Cod R. R. Co., 
 120 Mass. 259; Harlan v. St. Louis, 
 &c., R. R. Co., 64 Mo. 480 ; S. C. 65 
 Id. 22 ; Rothe v. Milwaukee, &c., R. 
 R. Co., 21 Wis. 256; Galena, &c., 
 R. R. Co. V. Dill, 22 111. 264. See, 
 also, Illinois, &c., R. R. Co. v. Hether- 
 ington, 83 111. 510; Lake Shore, &c., 
 R. R. Co. V. Berlink, 2 Brad. App. 
 427. See, also, the following addi- 
 tional cases standing for the general 
 proposition that mere collateral viola- 
 tions of law, on the part either of the 
 plaintiff or defendant, will not, on the 
 one hand, bar the plaintiff's right 
 of action, nor, on the other, make 
 the defendant liable to pay damages, 
 as the text declares. Smith v. Smith, 
 2 Pick. 621; s. C. 13 Am. Dec. 464; 
 Wallace v. Merrimack, &c , Naviga- 
 tion Co., 134 Mass. 95; S. C, 45 Am. 
 Rep. 301 ; Phila., &c., R. R. Co. v. 
 Phila., &c., Towboat Co., 23 How. 
 309; Kidder v. Dunstable, ii Gray, 
 342; Counters. Couch, 8 Allen, 436; 
 Keams v. Snowden, 104 Mass.. 63; 
 
 Hall V. Corcoran, 107 Id. 251 ; Wrinn 
 V. Jones, 112 Id. 360; Damon v. 
 Scituate, 119 Id. 66 ; Smith v. Con- 
 way, 121 Id. 216; Sutton V. Wau- 
 watosa, 29 Wis. 21 ; S. C. 9 Am. 
 Rep. 534; Carroll v. Staten Island 
 R. R. Co.. 58 N. Y. 126 ; Hoffman 
 V. Union Ferry Co., 68 N. Y. 385; 
 Mohney v. Cook, 26 Penn. St. 342 ; 
 Norris v. Litchfield, 35 N. H. 271 ; 
 Gale V. Lisbon, 52 Id. 174; Parker 2/. 
 Nassua, 59 Id. 402 ; Jennings v. 
 Wayne, 63 Me. 468 ; Schmid v. Hum- 
 phrey, 48 Iowa 652; S. C. 30 Am. 
 Rep. 414; Baldwins. Barney, 12 R. 
 I. 392 ; S. C. 34 Am. Rep. 670 ; Ker- 
 whacker v. Cleveland, &c., R. R. Co., 
 3 Ohio St. 172; Morrison v. Genl. 
 Steam Nav. Co., 8 Exch. 731; Dimes 
 V. . Petley, 15 Q. B. 276 ; Aston v. 
 Heaven, 2 Espin. 533; Chicago, &c., 
 R. R. w. McKean, 40 111. 218; St. 
 Louis, &c., R. R. Co. v. Manly, 58 
 Id. 300 ; Kepperly v. Ramsden, 83 
 Id. 354; McClary v. Lowell, 44 Vt. 
 116; S. C. 8 Am. Rep. 366; Pow- 
 hatan, &c., Co. V. Appomattox R. R. 
 Co., 24 How. (U. S.) 247 ; Daley v. 
 Norwich, &c.,R.R.Co., 26 Conn. 591; 
 Churchill v. Rosebeck, 15 Id. 359; 
 Simmonson v. Stellenmerf, Edm. Sel. 
 Cas. 194; Wharton on Neg., §§ 330, 
 381a, 405, 955; Cooley on Torts, § 157. 
 
54 
 
 THE GENERAL RULE. 
 
 [§17. 
 
 negligence is not a defense, and, accordingly, it is held 
 that a mere technical trespass is not such an oflFense 
 as to deprive the trespasser of his right to recover dam- 
 age for an injury which he suffers through the wilful 
 negligence of another. The bare fapt that one trespasses 
 upon my land, does not place him so far beyond the pale 
 of the law that I may, with impunity, inflict an injury 
 upon him.^ The owner of property is under no legal ob- 
 ligation to keep it in a safe condition for trespassers.* 
 When, however, the circumstances are such as to imply 
 a license, or invitation, to go upon the property, he who 
 enters is no longer a trespasser, and the owner is bound to 
 
 ' Sanders w. Reister, i Dakota, 151 ; 
 Whirley w. Whiteman, 1 Head, 610; 
 Terre Haute, &c., R. R. Co. v. Gra- 
 ham, 95 Ind. 286; s. c. 48 Am. Rep. 
 719; Southwestern R. R. Ccw. Hank- 
 erson, 61 Ga. 114; Kerwhacker v. 
 Cleveland, &c., R. R. Co., 3 Ohio St. 
 172; Norris V. Litchfield, 35 N. H. 
 271 ; State v. Manchester, &c., R. R. 
 Co., 52 Id. 528; Mason v. Missouri 
 Pac. R. R. Co., 27 Kansas, 83; s. C. 
 41 Am. Rep. 405 ; Brown v. Lynn, 31 
 Penn. St. 510; Marble v. Ross, 124 
 Mass. 44; Houston, &c., R. R. Co v. 
 Sympkins, 54 Texas, 615; s. C. 38 
 Am. Rep. 632; Chicago, &c., R. R. 
 Co. V. Kellam, 92 111. 245 ; S. C. 34 
 Am. Rep. 128; Isabel v. Hannibal, 
 &c., R. R. Co., 60 Mo. 475; Herring 
 V. Wilmington, &c., R. R. Co., 10 
 Ired. (Law), 402; s. c. 51 Am. Dec. 
 395 ; Meeks v. Southern Pacific R. R. 
 Co., 56Cal. 513; s.c. 38 Am. Rep. 
 67; Mulherrin v. Delaware, &c., R. 
 R. Co., 8 1 Penn. St. 366; Baltimore, 
 &c., R. R. Co. V. State, 33 Md. 542; 
 Weymire v. Wolfe, 52 Iowa, 533; 
 Lake Shore, &c., R. R. Co. v. Miller, 
 25 Mich. 279; Little Rock, &c., R. R. 
 Co. V. Pankhurst, 36 Ark. 371 ; Birge 
 V. Gardner, 19 Conn. 507; s.c. 50 
 Am. Dec. 261 ; Daley w. Norwich, &c , 
 R. R. Co., 26 Id. 591 ; Isbell v. New 
 York, &c., R. R. Co., 27 Conn. 393; 
 Shear. & Red on Neg., § 38; Thomp. 
 
 on Neg., 303, 1 162 ; Wharton on Neg., 
 §§ 344 et seq. 
 
 * Hargreaves v. Deacon, 25 Mich. 
 I ; Kohn v. Lovett, 44 Ga. 251 ; Roul- 
 ston V. Clark, 3 E. D. Smith, 366; 
 Zoebisch v. Tarbell, 10 Allen, 385; 
 Frost V. Grand Trunk R. R. Co., 10 
 Id. 387 ; Morgan v. City of Hallowell, 
 57 Me. 377; Lary v. Cleveland, &c., 
 R. R. Co., 78 Ind. 323; s, C. 41 Am. 
 Rep. 572; Parker v. Portland Pub- 
 lishing Co., 69 Me. 173; s. C. 31 Am. 
 Rep. 262; Gramlich v. Wurst, 86 
 Penn. St. 74; Severy w. Nickerson, 120 
 Mass. 306; s.c. 21 Am. Rep. 514; 
 Pierce v. Whitcomb, 48 Vt. 127; S.C. 
 21 Am. Rep. 120; Illinois, &c., R. R. 
 Co. V. Godfrey, 71 111. 500; s.c. 22 
 Am. Rep. 112; Blyth v. Topham, 
 Cro. Jac. 1 58 (cited in Comyn's Di- 
 gest, Action upon the Case for a Nui- 
 sance, C); Hardcastle v. The South 
 Yorkshire Ry. Co., 4 Hurl. & N. 67; 
 S. C. 28 L. J. (Exch.) 139; Goutret v. 
 Egerton, L. R. 2 C. P. 371 ; s. C. 36 
 L. J. (C. P.) 191 ; 15 Week. Rep. 638; 
 16 L. T. (N. S.) 17; Stone w. Jackson, 
 16 C. B. 199 ; s. c. 32 Eng. Law & Eq. 
 349 ; Balch v. Smith, 7 Hurl. & N. 736 ; 
 s. c. 8 Jiir. (N. S.) 197 ; 31 L. J. (Exch.) 
 201 ; 10 Week. Rep. 387 ; 6 L. T. 
 (N. S.) 158; Hounsell v. Smyth, 7 C. 
 B. (N. S.) 731 ; S. C. 6 Jur. (N. S.) 897 ; 
 29 L. J. (C. P.) 203; 8 Week. Rep. 
 227. 
 
§ 1 7-] THE GENERAL RULE. 55 
 
 exercise ordinary care and prudence toward him. The 
 invitation or license creates this duty.^ So it is said that 
 the owner, in such a case, is bound to take the same care 
 of one who enters his house by invitation, that he takes 
 of himself and the other members of his household, and 
 that he must not expose him to hidden dangers of which 
 he is himself aware, especially if the danger is in nature 
 of a trap.* 
 
 An invitation, in the technical sense of the word, will 
 be inferred where there is a common interest or mutual 
 advantage; as, for instance, there is an implied invitation 
 to the public generally to enter business houses for the 
 purpose of transacting business.* In such a case the law 
 imposes upon the owner, or proprietor, the duty of exer- 
 cising ordinary care. " The owner, or occupant of land," 
 says Mr. Justice Gray, in Carleton v. Franconia Iron 
 Co.,^ " is liable in damages to those coming to it, using 
 due care, at his invitation or inducement, express or im- 
 plied, on any business to be transacted or permitted by 
 him, for an injury occasioned by the unsafe condition of 
 the land or of the access to it, which is known to him, 
 
 1 Sweeny v. Old Colony, &c., R. * Indermaur v. Dames, L. R. i C. 
 
 R. Co., 10 Allen, 368; Graves v. P. 274; s.C. L. R. 2 C. P. 311 ; Nich- 
 
 Thomas, 95 Ind. 361 ; S. C. 48 Am. olson v. Lancashire, &c.. Ry. Co., 34 
 
 Rep. 727 ; Campbell v. Boyd, 88 N. C. L. J. (Exch.) 84; Corby v. Hill, 4 C. 
 
 129; S.C. 43 Am. Rep. 740; Buesch- B. (N. S.) 556; S.C. 4 Jur. (N. S.) 
 
 ingw. St. Louis Gaslight Co., 73 Mo. 512; 27 L. J. (C. P.) 318; Axford v. 
 
 219; S.C. 39 Am. Rep. 503; Hay- Prior, C. P. 14 W. R. 611 ; Paddock 
 
 ward V. Miller, 94 111. 349; S.C. 34 v. Northeastern Ry. Co., 18 L.T. (N. 
 
 Am. Rep. 229; McAlpin v. Powell, 70 S.) 60; Smith v. London & St. Kath- 
 
 N. Y. 126; S. C. 26 Am. Rep. 555, and erines' Dock Co., L. R. 3 C. P. 326; 
 
 note ; Campbell v. Portland Sugar Chapman v. Rothwell, El., Bl. & El. 
 
 Co., 62 Me. 552; S. C. 16 Am. Rep. 168; Holmes w. Northeastern Ry. Co., 
 
 503; McKone v. Michigan, &c., R. L. R. 4 Exch. 254; Davis v. Central 
 
 R. Co., 51 Mich. 601; s.C. 47 Am. Congregational Society of Jamaica 
 
 Rep. 596; Davis v. Chicago, &c., R. Plain, 129 Mass. 367; Campbell on 
 
 R. Co., 58 Wis. 646; s. C. 46 Am. Neg., § 32; Wharton on Neg., § 349; 
 
 Rep. 667; Bennett v. Railroad, 102 Thompson on Neg., 303. 
 
 U. S. 577 ; Barry v. New York, &c., ' See the cases generally last cited. 
 
 R. R. Co., 92 N. Y. 289; Southcote v. * 99 Mass. 216. 
 Stanley, i Hurl. & N. 247 ; s. C. 25 L. 
 J. (Exch.) 339. 
 
56 THE GENERAL RULE. [§ IJ. 
 
 and not to them, and which he has negligently suffere'd 
 to exist, and has given them no notice of." ^ The courts 
 draw a distinction between an invitation and a mere 
 license as affecting the rule in consideration. While an 
 invitation, express or implied, imposes the duty of ordi- 
 nary care upon a person in control of premises, a license, 
 which is inferred where the object is the mere pleasure 
 or benefit of the person enjoying it, imposes, as we have 
 already seen, no such duty. Graves, J., in Hargreaves v. 
 Deacon,^ after considering the question of the duty on 
 the part of an owner of property toward trespassers, idlers 
 and bare licensees, says : " We have found no support 
 for any rule which would protect those who go where 
 they are not invited, but merely with express or tacit per- 
 mission, from curiosity, or motives of private convenience, 
 in no way connected with business, or other relations with 
 the occupant." This is the doctrine of both the English 
 and the American cases.* We must remember, however, 
 that when the plaintiflF's trespass contributes to produce 
 the injury he sustains, the general rule as to contributory 
 negligence applies to prev^ent his recovering damages. 
 Contributory negligence may take the form of a trespass 
 as well as any other form, and, while the mere fact that 
 one is a trespasser will not alone prevent a recovery, it 
 may appear that going upon the premises was such a want 
 of ordinary care under the circumstances as to constitute 
 
 > To the same effect, see Gilbert v. 354; Luddington v. Miller, 4 Jones & 
 
 Nagle, 1 1 8 Mass. 278 ; Lome v. Hotel Sp. i ; Ryan v. Thompson, 2 Id. 1 33 ; 
 
 Co., 1 16 Mass. 67 ; Freer v. Cameron, Nave v. Flack, 90 Ind. 205 ; White v. 
 
 4'Rich. (Law), 228 ; s. C. 55 Am. Dec. France, 2 C. P. Div. 308; Chapman v. 
 
 663; Ackertz/. Lansing, 48 How. Pr. Rothwell, EL, Bl. & El. 168; Inder- 
 
 374; s. C. 59 N. Y. 646; Camp v. maur i/. Dames, j«/ra. 
 
 Wood, 76 N. Y. 92 ; S. C. 32 Am. Rep. « 25 Mich, i . 
 
 282; Pastene v. Adams, 49 Cal. 87; « Campbell on Neg., § 32; Sullivan 
 
 Hayward v. Miller, 94 111. 349; s. C. v. Waters, Ir. C. L. R.460; Balch v. 
 
 34 Am. Rep. 229, and note; Pierce v. Smith, 7 Hurl. & N. 736; Gautret v. 
 
 Whitcomb, 48 Vt. 127; s. C. 21 Am. Egerton, L. R. 2 C. P. 271. 
 Rep. 120; Totten v. Phipps, 52 N. Y. 
 
§ 17-] THE GENERAL RULE. 57 
 
 contributory negligence. The case of Marble v. Ross/ 
 suggests this distinction. The defendant kept a vicious 
 stag in his pasture, and the plaintiff, trespassing there, was 
 attacked by the stag, and injured. Here it is plain that 
 the matter of defense was not the trespass, but the con- 
 tributory negligence involved in the trespass. It was an 
 act harmless enough to walk through the pasture, but the 
 stag was known to be somewhat vicious, and it was care- 
 less to go within his reach. The plaintiff had no remedy, 
 not because he was a trespasser, but because his trespass 
 ^as a negligent act, contributing to occasion the injury. 
 And, a fortiori, there is the same rule when the plaintiff 
 inflicts the injury, or brings the disaster upon himself, by 
 meddling or trespassing with dangerous tools, or ma- 
 chinery, or other property, inadvertently exposed upon 
 the defendant's premises.* Accordingly, it is held, in a 
 recent carefully considered case in South Carolina,* that 
 a railroad company is not liable for the death of one who, 
 while walking on its track without right, intermeddled 
 with a torpedo which had been placed there as a dan- 
 ger signal, and was killed by its explosion. And in 
 the old case of Bush v. Brainard,* where the defendant, 
 having made maple sugar in his unfenced woodland, left 
 some of the syrup in a kettle, under an uninclosed shed, 
 and the plaintiff's cow, running at large in the wood, 
 came by night and drank of it and died, there being no 
 evidence of any town by-law permitting cattle to run at 
 large, nor of the defendant's consent that the plaintiff's 
 cattle, or cattle generally, might run on his premises, it 
 was held that the plaintiff had no right of action. 
 
 1 1 24 Mass. 44. Terre Haute, &c., R. R.Co. 78 Ind. 292 ; 
 
 « Bush V. Brainard, I Cowen, 78 ; S. C. 41 Am. Rep. 567 ; Galena, &c., 
 
 S. C.13 Am. Dec. 513; Munger v. R. R. Co. z-. Jacobs, 20 111. 478 ; Lygo 
 
 Tonawanda R. R. Co., 4 N. Y. 349; v. Newbold, 9 Exch. 302. 
 
 S. C. 53 Am. Dec. 384; Carter v. Co- ' Carter v. Columbia, &c., R. R. 
 
 lumbia, &c., R. R. Co., 19 S. C. 20; Co., supra. 
 
 S. C. 45 Am. Rep. 754; Everhart v. *■ Supra. 
 
58 THE GENERAL RULE. [§ 1 8. 
 
 This rule, in its application to the case of an infant 
 trespasser, is somewhat modified.^ 
 
 § 1 8. Plaintiff's prior negligence in connection with 
 defendant's subsequent negligence. — It is sometimes said 
 to be the rule that a plaintiff may recover, notwithstand- 
 ing the fact that his own negligence exposed him to the 
 risk of injury, if the defendant, after becoming aware of the 
 plaintiff's danger, failed to use ordinary care to avoid injur- 
 ing him,'* or, as Judge Thompson puts it,* " perhaps a bet- 
 ter expression of this rule is that, although the plaintiff ha^s 
 negligently exposed himself or his property to an injury, 
 yet if the defendant, after discovering the exposed situa- 
 tion, inflicts the injury upon him, through a failure to ex- 
 ercise ordinary care, the plaintiff may recover damages."* 
 This is but another attempt to make sense out of the rule 
 laid down in the case of Davies v. Mann,^ and to make 
 it square with the recognized and unquestioned rules of 
 law which obtain upon the subject of contributory negli- 
 gence. As it is first formulated above it is equivalent, 
 for practical purposes, to the rule that when the defend- 
 ant's negligence is the proximate cause of the injury, 
 while that of the plaintiff is only a remote cause or a 
 mere condition of it, the action will lie. This, as has 
 been shown,® is a correct rule, and, it is correctly ex- 
 pressed. As used in this sense "prior" and "subse- 
 quent" are very nearly, and often exactly, equivalent 
 to proximate and remote; "prior negligence" will 
 usually be found substantially the same as negligence 
 
 1 See Chap. IV, infra^ and Chap. Nelson v. Atlantic, &c., R. R. Co., 68 
 
 V, §§ 69, 70. Mo. 593 ; O'Keefe v. Chicago. &c., 
 
 » Shear. & Red. on Neg., § 36. R. R. Co., 32 Iowa, 467; Morris ». 
 
 8 Thomp. on Neg., 1 1 57, note. Id., 45 Id. 29. Compare Lannen v. Al- 
 
 * Citing Barker 7/. Savage, 45 N. Y. bany Gaslight Co., 44 N. Y. 459; 
 
 191, 194 ; Brown v. Lynn, 31 Penn. affirming 46 Barb. 264. 
 
 St. 510; Northern, &c., R. R. Co. v. = 10 Mee. & W. 546. 
 
 Price, 29 Md. 420; Locke v. First « § 10, supra. 
 Div., &c., R. R. Co., 15 Minn. 350; 
 
§ 1 8.] THE GENERAL RULE. 59 
 
 that is regarded as a remote cause, and " subsequent 
 negligence " means, ordinarily, in the judge's opinion, the 
 negligence that did the mischief, which is more usually- 
 known as negligence which is a proximate cause. On 
 the other hand as the rule, as stated by Judge Thomp- 
 son, it is only an indifferent way of saying that when the 
 defendant's negligence is wilful, the plaintiff's contribu- 
 tory negligence is not a defense. When one, after dis- 
 covering that I have carelessly exposed myself to an in- 
 jury, neglects to use ordinary care to avoid hurting me 
 and " inflicts " the injury upon me as a result of his 
 negligence, there is very little room for a claim that such 
 conduct on his part is not wilful negligence. The author 
 believes, as he has already suggested,^ that every case in 
 the reports which assumes to rest upon the rule that the 
 prior negligence of the plaintiff is not a defense to the 
 subsequent negligence of the defendant, where a correct 
 conclusion l^s been reached, will be found to turn upon 
 one or the other of these elementary propositions. 
 When the plaintiff in these cases is held entitled to re- 
 cover, it will appear either that the defendant's negligence 
 was wilful, or that it was the proximate cause of the in- 
 jury. If this be true, nothing is gained by stating the rule 
 in this way. It begets confusion in expression and in 
 thinking. And, moreover, as an abstract proposition of 
 law, it is open to the criticism that, whether we express it 
 in one way or the other, and either with or without Judge 
 Thompson's discovery clause, it ignores the principle 
 upon which the law of contributory negligence has been 
 made to rest, and proceeds upon the theory of punish- 
 ment. The tendency of it is to unsettle and confuse 
 established principles. The culmination of it is " compara- 
 tive negligence." The courts have usually adopted this 
 
 ' § 10, supra. 
 
6o 
 
 THE GENERAL RULE. 
 
 [§i8- 
 
 form of expressing the law in cases where the negligence 
 of the plaintiff preceded that of the defendant in point of 
 time, and it ^las more generally been applied where the 
 defendant's negligence is the proximate cause of the in- 
 jury.^ When the negligent acts or orqissions of the par- 
 ties to the action were contemporaneoiis — or, what is to 
 say the same thing, when the catastrophe is the result of 
 concurring or mutual acts of negligence, the plaintiff 
 cannot recover damages. This is hardly more than a re- 
 iteration of the general rule of contributory negligence, 
 but it is the form in which the rule is sometimes stated.* 
 
 1 Kerwhacker v. Cleveland, &c., R. 
 R. Co., 3 Ohio St. 172 ; S. C. 62 Am. 
 Dec. 24.6; Cleveland, &c., R. R. Co. 
 V. Elliott, 28 Ohio St. 340; Johnson 
 V. Hudson River R. R. Co., 5 Duer, 
 27 ; Button v. Id., 18 N. Y. 248 ; Aus- 
 tin V. N. J. Steamboat Co., 43 Id. 75 ; 
 Healy v. Dry Dock, &c., R. R. Co., 
 46N.Y. Super. Ct.473; Kansas, &c.,R. 
 R. Co. V. Cranmer, 4 Colo. 524; Uog- 
 gett V. Richmond, &c., R. R. Co., 78 
 N. C. 305 ; Gunter v. Wicker, 85 N. 
 C. 310; Needham v. San Francisco, 
 &c., R. R. Co., 37 Cal. 409 ; Gothard 
 V. Alabama, &c. , R.R. Co. , 67 Ala. 114; 
 Zimmerman v. Hannibal, &c., R. R. 
 Co., 71 Mo. 476; Swigertw. Id., 75 Id. 
 475; Trow v. Vermont, &c., R. R. 
 Co., 24 Vt. 487 ; Wright v. Brown, 4 
 Ind. 95 ; S. C. 58 Am. Dec. 622 ; Cum- 
 mins V. Presley, 4 Harr. (Del.) 315; 
 Baltimore, &c., R. R. Co. v. Trainor, 
 33 Md. 542 ; Id. V. McDonnell, 43 Id. 
 534; Id. z/. Mulligan, 45 Id. 486; Missis- 
 sippi, &c., R. R. Co. w. Mason, 51 Miss. 
 234; Johnson v. Canal. &c., R. R. Co., 
 27 La. Ann. 53 ; Isbell v. kew York, 
 &c., R.R. Co., 27 Conn. 393 ; Byram v. 
 McGuire, 3 Head, 530; Underwood 
 V. Waldron, 33 Mich. 232 ; O'Rourke 
 V. Chicago, &c., R. R. Co., 44 Iowa, 
 526; Morris ^z. Id., 45 Id. 29; Illinois, 
 &c., R. R. Co. V. Hoffman, 67 111. 
 287 ; Chicago, &c., R. R. Co. v. Dona- 
 hue, 75 Id. lo6; Ohio, &c., R. R. Co. 
 V. Stratton, 78 Id. 88 ; Georgia, &c., 
 R. R. Co. V. Neely, 56 Ga. 504; 
 
 Lane v. Atlantic Works, 107 Mass. 
 104; Britton w. Cummington, 107 Id. 
 347 ; Hibbard v. Thompson, 109 Id. 
 288; Tuffz/. Warman, 2 C. B. (N.S.) 
 740; s.c. 5 Id. 573; Scott ^/. Dublin, 
 &c., R. R. Co., II Ir. C. L. 377; Rad- 
 ley V. London, &c., Ry. Co., i App. 
 Cas. 754; S. C. L. R. 9 Exch. 71 ; 43 
 L. J. (Exch.) 73 ; FfEld on Damages, 
 161 ; Shear. & Red. on Neg.. §§ 36,493 ; 
 Thomp. on Neg., 11 57; Wharton on 
 Neg., §§ 335 et seq. 
 
 * Pennsylvania R. R. Co. v. Aspell, 
 23 Penn. St. 147 ; S. C. 62 Am. Dec. 
 323 ; Railroad Company v. Norton, 24 
 Penn. St. 469; Simpson v. Hand, 6 
 Wharton (Penn.), 311; S.C. 36 Am. 
 Dec. 231 ; Beatty v. Gilmore, 16 Penn. 
 St. 463 ; S. C. 55 Am. Dec. 514 ; Penn- 
 sylvania R. R. Co. V. Zebe, 33 Penn. 
 St. 318; Heil V. Glanding,42 Id. 493; 
 Stiles V. Geesey, 71 Id. 439; Cook v. 
 Champlain, &c., R. R. Co., I Denio, 
 91 ; Button v. Hudson River R. R. 
 Co., 18 N. Y. 248 ; Wilds V Id., 24 Id. 
 432; Hance v. Cayuga, &c., R. R. 
 Co., 26 Id. 428; Ring v. City of Co- 
 hoes, 77 N. Y. 83 ; s. C. 33 Am. Rep. 
 574; Allen V. Hancock, 16 Vt. 230; 
 Trow V. Vermont, &c.. R. R. Co., 24 
 Id. 487 ; s. c. 58 Am. Dec. 191 ; Wood 
 V. Jones, 34 La. Ann. 1086 ; Bosworth 
 V. Swansey, 10 Mete. 363; S. C. 43 
 Am. Dec. 441 ; Worcester v. Essex 
 Merrimac Btidge Corp., 7 Gray, 457 ; 
 Heland v. Lowell, 3 Allen, 407 ; Tim- 
 mons V. Ohio, &c,, R. R. Co., 6 Ohio 
 
§ 1 9-] THE GENERAL RULE. 6 1 
 
 " Contributory " is the word most used in tiie decisions to 
 describe that sort of negligence on* the part of a plaintiff 
 which is juridically sufficient to prevent a recovery of 
 damages — though it is criticised by Crompton, J., in 
 Tuff V. Warman,^ as " much too loose," and as " a very 
 unsafe word." Sometimes the word "concur" is used, as 
 we have just seen,* and sometimes "co-operate,"^ but con- 
 tributory and contribute are the safer words to use, as 
 having a more settled legal signification, and a more un- 
 challenged currency. 
 
 Having now considered the legal effect of the plaint- 
 iff's negligence, both when, in point of time, it is prior to 
 that of the defendant, and when it is contemporaneous 
 therewith, we proceed to a discussion of the conse- 
 quences of that negligence when it is subsequent to the 
 negligent wrong-doing of the defendant. 
 
 § 19. Plaintiff's negligence after the catastrophe. — 
 In the preceding section an attempt was made to show 
 that, when the defendant's negligence appears to have 
 been subsequent to that of the plaintiff, so that the rule 
 that the plaintiff's prior negligence is not a defense to the 
 subsequent neglect, or wrong-doing of the defendant, is 
 applied, if a correct conclusion is reached, it will be 
 found, in the last analysis, either that the defendant's neg- 
 ligence was the proximate cause of the injury, or that his 
 negligence was- wilful. It has perhaps been somewhat 
 overlooked, both by the text-writers and the courts, that 
 the converse of this proposition is also true. The ques- 
 
 St. 105; Larkin v. Taylor, 5 Kan. &c., R. R. Co., 75 Mo. 185 ; Crandall 
 
 433; Stucke V. Milwaukee, &c., R. R. v. Goodrich Trans. Co., 11 Biss. 516; 
 
 Co., 9 Wis. 214; Haley v. Chicago, S.c. 16 Fed. Rep. 75; Burrows v. 
 
 &c., R. R. Co., 21 Iowa, 25 ; Rev- The Marsh Gas & Coke Co. L. R. 5 
 
 nolds V. Hindman, 32 Id. 149; North- Exch. 67 ; s. C. L. R. 7 Exch. 96 ; 2 
 
 em Central R. R. Co. v. Price, 29 Sedgwick on Damages, 361. 
 
 Md. 420; Id. V. Gies, 31 Id. 357; ^5 C. B. (N. S.) 573, 584. 
 
 Needham v. San Francisco, &c., R. ' Vide the cases last cited. 
 
 R. Co.,37Cal. 423; Straus w. Kansas, » Shear.& Red.on Neg.,§2S,note4. 
 
62 THE GENERAL RULE. [§ IQ. 
 
 tion being whose negligence was the proximate cause of 
 the injury of which the plaintiff complains, it will occa- 
 sionally appear that the plaintiff's negligent act, or omis- 
 sion to act, after the defendant's negligence, was the effi- 
 cient cause of the mischief. Whenever it can be shown 
 in evidence that the plaintiff, after the defendant's negli- 
 gent act or omission, and with knowledge, actual or con- 
 structive, of such negligence and its probable conse- 
 quences, refused or omitted to exercise ordinary care un- 
 der the circumstances to prevent an injury from that 
 cause to himself or his property, then, if he suffers, his 
 own negligence is the proximate and efficient cause of the 
 injury, and, upon familiar grounds, his right of action is 
 gone. The issue, upon the determination of which the 
 plaintiff's case rests, is, what was the proximate cause, and 
 when his own negligence, being, in point of time, either 
 prior to that of the defendant, or contemporaneous with 
 it, or subsequent to it, turns out to have been the proxi- 
 mate cause, his right to recover is barred. It is wholly 
 immaterial when the plaintiff's negligence operated to 
 produce the injury. If it was the proximate cause he has 
 no cause of action, and that his negligence may as well 
 be subsequent to that of the defendant as any other way, 
 may well be illustrated by reference to the reported cases. 
 In Illinois, &c., R. R. Co. v. McClelland,^ it appeared 
 that a son of the plaintiff saw a fire in some stubble near 
 a fence separating the plaintiff's land from a railway 
 track, while on his way homeward, but that instead of 
 stopping and trying to put the fire out, he went on, and, 
 upon returning to the place some time afterward, found 
 the fire burning so hotly and extending so far as to be be- 
 yond control. The court held this an act of negligence, 
 chargeable to the plaintiff, and sufficient to prevent his re- 
 
 • 42 111. 355. 
 
§ 1 9-] THE GENERAL RULE. 63 
 
 covery. Here the negligence of the plaintiff in failing 
 to stamp out a fire negligently kindled by sparks from the 
 defendant's locomotive, after the probability that the fire 
 would spread and bum up his fence had been brought to 
 his knowledge, was the proximate cause of the injury he 
 sustained. And again in Toledo, &c., R. R. Co. v. Pin- 
 dar,^ where the plaintiff's house was negligently set on fire 
 by a passing locomotive on the defendant's railway, and 
 the plaintiffj although he had ample time and opportunity 
 after the house began to burn up, to get out some money 
 he had in the house, but forgot it, and suffered it to be 
 burned, it was held that the plaintiff's failure to secure 
 the money was the proximate cause of its loss, and that 
 therefore he could not recover.^ It is unquestionably a 
 correct rule, and, at least, in view of the precedents, not a 
 wholly incorrect way of expressing it, that the subsequent 
 negligence of the plaintiff will be a defense to the prior 
 negligence of the defendant whenever the plaintiff, by the 
 exercise of ordinary care under the circumstances, after 
 the discovery of the negligent act of the defendant, could 
 have escaped the injury. Perhaps this is reading Judge 
 Thompson's rendition of the rule in Davies v. Mann* 
 backwards, but, however that may be, it states a correct 
 rule, in a way which, in view of the fact that many cases 
 in the reports contain the reverse proposition, more or 
 less exactly put, will emphasize a phase of the subject 
 which should not be overlooked. The careful reader will 
 not fail to have noted that the author deprecates this 
 way of expressing the rule, and has attempted to show 
 that the real issue is, not whose negligence came first 
 
 ' S3 111. 447; s. C. S Am. Rep. 57. Pittsburgh, &c., R. R. Co., 11 West 
 
 "See, also, Washburn z/. Tracy, 2 Va. is;'Secord v. St. Paul, &c., R. 
 
 D. Chipman (Vermont), 128; S. C. 15 R. Co., 5 McCrary, 515; Sedgwick on 
 
 Am. Dec. 661 ; McNarra v. Chicago, Damages, 164, 166 (n.) 
 
 &c., R. R. Co., 41 Wis. 69 ; Snyder v. ^ Thomp. on Neg., 1 1 55, §§ 7 and 8. 
 
64 THE GENERAL RULE. [§ 20. 
 
 or last, but whose negligence, however it came, was the 
 proximate cause. 
 
 When the subsequent negligence of the plaintiff con- 
 tributes, not to cause, but to aggravate the injury, it 
 will not, as has been hitherto suggested,^ avail the de- 
 fendant as a defense, for the obvious reason that, how- 
 soever much it may have increased the damage, it did 
 not cause the injury, and the defendant's negligence did 
 cause it, which is the ground of his chargeability.** How 
 far such negligence on the part of a plaintiff will count 
 in mitigation of damages is considered hereafter.* 
 
 § 20. Negligence of the decedent under Lord Camp- 
 beWs act. — In every State in the Union there is a stat- 
 ute, modelled more or less exactly after the English 
 statute, known as Lord Campbell's act,* under which ac- 
 tions are brought by the personal representatives of de- 
 ceased persons to recover damages for injuries which 
 have resulted in death. These statutes uniformly pro- 
 vide that no action is maintainable by the representa- 
 tives in cases where the deceased himself could not 
 have maintained the action if death had not ensued. 
 All the rules of contributory negligence, therefore, ap- 
 plicable to any individual case, had it been brought by 
 the deceased in his lifetime, apply in full force when 
 the action is brought by his personal representatives af- 
 ter his death. The contributory negligence of the dead 
 person is as completely a bar to the action brought 
 for the benefit of his next of kin, by his representative, 
 as it would have been had he lived to bring the action 
 
 ' § II, supra. ry, 515 ; Sills v. Brown, 9 Car. & P. 
 
 " Gould V. McKenna, 86 Penn. St. 601 ; Greenland -v. Chaplin, 5 Exch. 
 
 397 ; S. C. 27 Am. Rep. 705 ; Stebbens 243 ; Shear. & Red. on Neg., § 32, and 
 
 V. Central, &c., R. R. Co., 54 Vt. note ; Wharton on Neg., §§ 868 rf «y. 
 464; S. C. 41 Am. Rep. 855; Secord ' § 24, infra. 
 V. St. Paul, &c., R. R. Co., 5 McCra- < 9 and 10 Vict. chap. 93. 
 
20.J 
 
 THE GENERAL RULE. 
 
 65 
 
 himself for his own benefit. A very considerable pro- 
 portion of all the cases in which the question of con- 
 tributory negligence is involved are those in which the 
 action has been brought to recover damages for inju- 
 ries which resulted in death. Accordingly, to consider 
 the authorities in detail under this section would be to 
 go over again each title of the whole subject seriatim. 
 This would be fruitless, and the citations below, selected 
 to illustrate the application of the rules of law in point to 
 many special instances, are believed to be fully sufficient to 
 instruct the student or gratify the curiosity of the general 
 reader, while the practitioner will look, in addition, for his 
 authorities, as the exigencies of his case require, under the 
 proper heads elsewhere.' 
 
 * Batchelor v, Fortescue, n L. R. 
 Q. B. Div. 474; Armstrong v. South- 
 eastern Ry. Co., II Jur. 758; Tucker 
 •V. Chaplin, 2 Car. & K. 730 ; Thoro- 
 good V. Bryan, 8 C. B. 1x5 ; S. C. 18 
 L. J. (C. P.) 336 ; Springett v. Ball, 4 
 Fost. & Fin. 472 ; Marshall v. Stew- 
 art, 33 Eng. Law & Eq. i ; Hutchin- 
 son V. York, &c., Ry. Co., 6 Eng. 
 Rail. Cas. 580 ; Smith v. Steele, L. R. 
 10 Q. B. 125; S. C.44L.J. (Q. B.)6o; 
 Wigmore v. Jay, 5 Exch. 354 ; s. c. 19 
 L. J. (Exch.) 300; D)men v. Leach, 
 26 Id. 221 ; Carey v. Berkshire R. R. 
 Co. and Skinner v. Housatonic R. R. 
 Co., I Cush. 475; S. C. 48 Am. Dec. 
 616, and Mr. Freeman's learned note, 
 pp. 619 to 641 ; Hubgh V. New Or- 
 leans, &c., R. R. Co., 6 La. Ann. 
 495 ; S. C. 54 Am. Dec. 565 ; Knight 
 •v. Pontchartrain R. R. Co., 23 La. 
 Ann. 462 ; Telfer v. Northern, &c., R. 
 R. Co., 30 N. J. Law, 188 ; Paulmier 
 V. Erie Ry. Co., 34 Id. 151 ;.Willetts 
 V. Buffalo, &c.. R„ R. Co., 14 Barb. 
 585 ; Gay v. Winter, 34 Cal. 153; El- 
 liott V. St. Louis, &c., R. R. Co., 67 
 Mo. 272; State v. Manchester, &c., 
 R. R. Co., 52 N. H. 528 ; Dennick v. 
 Railroad Co., 103 U. S. 11; Scheffer 
 
 V. Washington, &c., R. R. Co., 105 
 Id. 249 ;■ Indianapolis, &c., R. R. Co. 
 V. Stout, 53 Ind. 143 ; Bancroft v. 
 Boston, &c., R. R. Co., 97 Mass. 275; 
 Bradbury v. Furlong, 13 R. I. 15 ; S. 
 C. 43 Am. Rep. i ; Sauter v. New 
 York, &c.. R. R. Co., 66 N. Y. 50 ; S. 
 C. 23 Am. Rep. 18 ; Louisville, &c., 
 R. R. Co. V. Collins, 2 Duv. 1 14 ; 
 Packet Co. v. McCue, 17 Wall. 508 ; 
 Toledo, &c., R. R. Co. v. Moore, ^^ 
 111. 217 ; Schmidt v. Chicago, &c., R. 
 R. Co., 83 Id. 405 ; Chicago, &c., R. 
 R. Co. V. Triplett, 38 Id. 482 ; Kan- 
 sas, &c., R. R. Co. V. Salmon, 1 1 Kan. 
 83; Cumberland, &c., R. R. Co.t'. Fa- 
 zenbaker, 37 Md. 156; Pennsylvania 
 R. R. Co. v. Zebe, 33 Penn. St. 318; 
 Hill V. Louisville, &c., R. R. Co., 9 
 Heisk. 823; McLean v. Burbank, 11 
 Minn. 277; Nickerson v. Harriman, 
 38 Me. 277; Sherman v. Western 
 Stage Co., 24 Iowa, 515 ; Atlanta, &c., 
 R. R. Co. V. Ayers, 53 Ga. 12; Nash- 
 ville, &c., R. R. Co. V. Smith, 6 Heisk. 
 174; Thomp. on Neg., 1279, 129/), at 
 § 92; Shear. & Red. on Neg., § 302; 
 Cooley on Torts, 264; Addison on 
 Torts, 503. 
 
66 THE GENERAL RULE. [§ 2U 
 
 (B.) Particular Considerations Affecting the De- 
 fendant's Liability. 
 
 § 21. When the defendanis negligence is gross. — 
 " Gross neglect," says Chancellor Kent, " is the want of 
 that care which every man of common sense under the 
 circumstances takes of his own property." ^ However 
 much this definition may be obnoxious to criticism in 
 other respects, it defines gross negligence in such a way 
 as to mark clearly the distinction between that grade 
 of fault and wilful negligence, with which it has some- 
 times been rather strangely confounded. We find the 
 term " gross negligence " occasionally used in the re- 
 ports in such a way as to be, for the most part, equiv- 
 alent to W^m/ negligence. In St. Louis, &c., R. R. Co. 
 V. Todd,^ gross negligence is defined as " amounting to 
 wilful injury," while, at the othefr extreme, there is a 
 class of cases holding that there is no juridical differ- 
 ence between gross negligence and negligence merely.* 
 Baron Rolfe also calls " gross " a " vituperative epithet," 
 and intimates that he sees no difference between neg- 
 ligence simply and negligence with gross prefixed.* It 
 should seem, however, at that extreme, not hard to see 
 the essential distinction between ordinary negligence 
 and gross negligence, but it is with the confusion 
 and misunderstanding as to the line of demarcation 
 proper to be observed between the terms gross negli- 
 gence and wilful negligence that we have now espe- 
 cially to do. The distinction between these two grades 
 of fault is suggested in a famous New York decision,* 
 
 ' ^^SJ?,"*" 5^- 24 Id. 222 ; New World v. King, i6 
 
 2 36 111. 409. How. (U. S.) 474. 
 
 9 Hinton v. Dibbin, 2 Q. B. 661 ; * Wilson v. Brett, u Mee. & W. 
 
 Austin w. Manchester, &c.,R.R. Co., 113. See, also, Grill 7/. GenU, &c., 
 
 10 C. B. 454, 474; Wells V. New York, Collier Co., L. R. i C. P. 612 
 
 &c., R. R. Co., 24 N. Y. 181 ; Per- s Tonawanda R. R. Co. v. Munger, 
 
 kins V. Id., 24 Id. 196 ; Smith v. Id., 5 Denio, 255 ; s. c. 49 Am. Dec. 239. 
 
§ 21.] THE GENERAL RULE. 67 
 
 in which Beardsley, J., says : " Negligence, even when 
 gross, is but an omission of duty. It is not designed 
 and intentional mischief."^ Notwithstanding the con- 
 fusion in the use of these terms in the earlier cases, 
 there is, it is believed, a somewhat settled and deter- 
 mined meaning for each of them as they are used by 
 the judges at present. By negligence is meant ordi- 
 nary negligence, a term the significance of which is rea- 
 sonably well fixed. By gross negligence is meant ex- 
 ceeding negligence, that which is mere inadvertence in 
 the superlative degTee.** It is a convenient designation 
 of a real thing, and in this sense gross is merely intensive 
 and not " vituperative." By wilful negligence is meant 
 not strictly negligence at all, to speak exactly, since neg- 
 ligence implies inadvertence, and whenever there is an ex- 
 ercise of the will in a particular direction, there is an end 
 of inadvertence, but rather an intentional failure to per- 
 form a manifest duty, in reckless disregard of the conse- 
 quences as affecting the life or property of another.* 
 Such conduct is not negligent in any proper sense, and 
 the term " wilful negligence," if these words are to be in- 
 terpreted with scientific accuracy, is a misnomer. It is, 
 however, the name which the courts have fastened upon 
 a fault of that character, and by which it is most usually 
 designated in the reports. Recognizing these several 
 grades of negligence, and distinguishing them as I have 
 proposed, we come to a line of cases which hold that 
 when the defendant's negligence, either in faciendo or in 
 non faciendo, amounts to gross negligence, the contribu- 
 tory negligence of the plaintiff will not prevent a recov- 
 ery,* Of this rule, as an abstract proposition of law, it 
 
 1 See, also, in point, Hansford's ' Gulf, &c., R. R. Co. v. Levy, Sup. 
 Admx. V. Payne, 11 Bush, 380. Ct., Texas, 19 Am. Law Rev. 480. 
 
 2 Gulf, &c., R. R. Co. V. Levy, Sup. * Kerwhacker v. Cleveland, &c., R. 
 Ct., Texas, 19 Am. Law Rev. 480. R. Co., 3 Ohio St. 172; Augusta, &c., 
 
68 THE GENERAL RULE. [§ 22. 
 
 may be said that it is unsound. An examination of the 
 cases cited, and others that announce the same rule, will 
 show that they, for the most part, fall into one of two 
 classes. Either the " gross negligence " that they refer to 
 is in reality wilful negligence, or the doctrine of compar- 
 ative negligence is discovered. The older judges had a 
 fashion of using the expression "gross or wilful negli- 
 gence," as though the two were in substance the same,^ 
 and in many of the earlier cases, where this or some equiv- 
 alent form of expression is found, it is plain that that 
 grade of negligent wrong-doing is referred to which is 
 considered in the succeeding section, and that what is 
 there called " gross, or wilful," means simply wilful negli- 
 gence. In the later cases, the distinction between these 
 two essentially different grades of fault is more generally 
 recognized, and, as a consequence, we read in the recent 
 reports less and less about gross negligence, when wilful 
 negligence is meant. Except in those jurisdictions where 
 the doctrine of comparative negligence obtains, it is not 
 at present usual to announce the rule in this way, z. i?., 
 that contributory negligence is no defense when the neg- 
 ligence of the defendant is gross, for the reason, as we 
 have seen, that it either states the rule wrong, or states it 
 right in a wrong way. 
 
 § 22. When the defendant's negligence is wilful. — 
 When the wrong-doing of the defendant is merely negli- 
 
 R. R. Co. V. McElmurry, 24 Ga. 75; 248; Galena, &c., R. R. Co. v. Ja- 
 
 Macon, &c., R. R. Co. v. Davis, 27 cobs, 20 111. 478 ; Chicago, &c., R. R. 
 
 Id. 113 ; Kansas, &c., R. R. Co. v. Co. -v. Gretzner, 46 Id. 75; Ohio, &e., 
 
 Pointer, 14 Kan. 37 ; Louisville, &c , R. R. Co. v. Porter, 92 Id. 437 ; Stacke 
 
 R. R. Co. V. Collins, 2 Duv. 114; Id. v. Milwaukee, &c., R. R. Co., 9 Wis. 
 
 V. Robinson, 4 Bush, 507; Hartfield 202; Evansville, &c., R. R. Co. v. 
 
 V. Roper, 21 Wend. 615 ; s. C. 34 Am. Lowdermilk, 15 Ind. 120 ; La Fayette, 
 
 Dec. 273 ; McGrath v. Hudson River &c., R. R. Co. v. Adams, 26 Id. 76 ; 
 
 R. R. Co., 32 Barb. 155; s. C. 19 Whirley «/. Whiteman, I Head, 610. 
 How. Pr. 224; Rathbun v. Payne, 19 1 Hartfield w. Roper; Kerwhackerw. 
 
 Wend. 399; Chapman v. New Haven, Cleveland, &c., R. R. Co. ; and Evaris- 
 
 &c., R. R. Co., 19 N. Y. 341 ; Button ville, &c., R. R. Co. v. Lowdermilk, 
 
 V. Hudson River R. R. Co., 18 Id. supra. 
 
§ 2 2.]. THE GENERAL RULE. 69 
 
 gence, the contributory negligence of the plaintiff may, as 
 is well understood, operate as a defense, but when the de- 
 fendant's conduct is wilful, it is no longer negligence, 
 and when the injury sustained by the plaintiff is the result 
 of the wanton and wilful act of the defendant, the ques- 
 tion of the plaintiffs contributory negligence as a defense 
 cannot arise. In order to constitute contributory negligence 
 on the part of the plaintiff, there must be negligence on the 
 part of the defendant.^ It is accordingly the settled rule 
 that when the defendant's conduct amounts to wilfulness, 
 and when the mischief is occasioned by his intentional 
 and wanton wrong-doing, the plaintiff's negligence is no 
 defense.* So it is held that contributory negligence is no 
 defense to an action for an assault and battery,* for the 
 reason that the person assaulted is under no obligation 
 to exercise any care to avoid the assault by retreating or 
 otherwise, and because, moreover, his want of care can in 
 no just sense be said to contribute to the injury inflicted 
 upon him. An intentional assault inflicted upon one is 
 an invasion of his right of personal security, for which 
 there is a redress by an action at law, and he cannot be 
 
 > Ruter V. Foy, 46 Iowa, 132; v. Louisville, &c., R. R Co., 60 Ala. 
 
 Steinmetz v. Kelly, 72 Ind. 442; S. C. 621 ; Gothard v. Alabama, &c., R. R. 
 
 37 Am. Rep. 170. Co., 67 Ala. 114; Banks v. Highland 
 
 « Hartford z/. Roper, 21 Wend. 615; St. R. R. Co., 136 Mass. 485 ; Mor- 
 
 S. C. 34 Am. Dec. 273; Birge v. rissey w. Eastern, &c., R. R. Co., 126 
 
 Gardner, 19 Conn. 507 ; S. C. 50 Am. Id. 377; S. C. 30 Am. Rep. 686; 
 
 Dec. 261; Tonawanda R. R. Co. v. Johnson v. Boston, &c.,R. R. Co., 
 
 Munger, 5 Denio, 255:8. C. 49 Am. 125 Mass. 75; Wynn v. AUard, 5 
 
 Dec. 239; Williams v. Michigan, &c., Watts & S. 524; Bunting v. Central, 
 
 R.R. Co.,2Mich.2S9; S.C.5SAm.Dec. &c,, R. R. Co., 16 Nevada, 277; 
 
 59; Chicago, &c., R.R. Co. v. Smith, 46 Holstine v. Oregon, &c., R. R. Co., 9 
 
 Mich. 504; Kerwhacker v. Cleveland, Oregon, 163; Maumus v. Champion, 
 
 &c., R. R. Co., 30hioSt. l72;Cincin- 40 Cal. 121 ; Carroll v. Minnesota, 
 
 nati, &c., R. R. Co. v. Waterson, 4 &c., R.R. Co., 13 Minn. 30; Griggs 
 
 OhioSt. 424; Pittsburg, &c., R.R. Co. v. Fleckenstein, 14 Id. 81; Pennsyl- 
 
 z/. Smith, 26 Ohio St. 124; Brownellz/. vania R. R. Co. v. Sinclair, 62 Ind. 
 
 Flagler, 5 Hill, 282; Sanford 2/. Eighth 301 ; s. C. 30 Am. Rep. 185, and note; 
 
 Ave. R. R. Co., 23 N. Y. 343 ; Vande- Town of Salem v GoUer, 76 Ind. 291. 
 
 grift w.Rediker, 22 N. J. Law, 185; ' Steinmetz v. Kelly, 72 Ind. 442; 
 
 New Jersey Express Co. v. Nichols, S. C. 37 Am. Rep. 170; Ruter z/. Foy, 
 
 32 Id. 166; S. C. 33 Id. 434; Tanner 46 Iowa, 132. 
 
•JO THE GENERAL RULE. [§ 22. 
 
 deprived of this redress on the ground that he was negli- 
 gent and took no care to avoid such an invasion of his 
 rights. Moreover, aptly says Adams, J.:^ " There can be 
 no contributory negligence except where the defendant 
 has been guilty of negligence to which the plaintiff's neg- 
 ligence could contribute. An assault and battery is not 
 negligence. The former is intentional, the latter is un- 
 intentional." ^ This reasoning applies with equal force to 
 any other intentional injury inflicted upon a plaintiff, and 
 the rule that when the defendant's conduct is of this char- 
 acter the plaintiff's negligence is not a defense, is sustained 
 not only by precedent, but upon the soundest principles 
 of legal right reason. 
 
 In Pennsylvania, the courts have materially limited the 
 application of this principle in actions for injuries sustained 
 by persons while unlawfully upon the track of a railway 
 company, by taking an extreme ground, somewhat be- 
 yond that which is taken in other jurisdictions, as to the 
 right of the company to a clear track. In such cases the 
 rule in Pennsylvania seems to be that the trespasser acts 
 wholly at his peril ; that the railroad company hardly owes 
 him the duty of even slight care, and that, if he is injured 
 from the ordinary prosecution of the company's lawful 
 business, he must blame his own rashness and folly, and 
 not expect the courts to assist hirn except in cases of the 
 most wanton injury.* 
 
 In Kentucky, on the contrary, the courts have gone to 
 the other extreme, and, under a statute * providing for the 
 recovery of punitive damages in case of loss of life " by 
 
 ' Ruterw. Foy, supra. 375; Mulherrin v. Delaware, &c., R. 
 
 2 See, also. Chiles v. Drake, 2 R. Co., 81 Id. 366. See, also, Chap. 
 
 Mete. (Ky.') 146; Springs Admr. v. V. infra, where the Pennsylvania 
 
 Glenn, 12 Bush, 172. rule upon this subject is fully con- 
 
 s Railroad Co. v. Norton, 22 Penn. sidered. 
 
 St. 465; Philadelphia R. R. Co. v. * Genl. Stat, of Ky., 1873, chap. 
 
 Spearen, 47 Id. 304; Philadelphia, 57, § 3, or 2 Stantons Ky. Rev. Stat.,. 
 
 &€., R. R. Co. V. Hun-.mell, 44 Id. 510, § 3. 
 
§ 23.] THE GENERAL RULE. 
 
 71 
 
 the wilful neglect of another person," railway cor- 
 porations, in cases where persons are injured in their 
 employ, or in being exposed to danger upon their tracks 
 or elsewhere, through the negligence of the company, 
 are held to a somewhat unusual degree of care, and there 
 is a tendency to construe many acts and omissions 
 "wilful" that perhaps in other jurisdictions might not be 
 so severely regarded.^ 
 
 § 23. When the defendant by his acts or omissions 
 throws the plaintiff off his guard. — When the defen- 
 dant, by his own negligent or wrongful acts, or omis- 
 sions, throws the plaintiff off his guard, or when the 
 plaintiff acts in a given instance upon a reasonable sup- 
 position of safety induced by the defendant, when there 
 is, in reality, danger, to which the plaintiff is exposing 
 himself, in a way and to an extent which, but for the 
 defendant's inducement, might be imputed to the plaint- 
 iff as negligence, sufficient to prevent a recovery, such 
 conduct on the part of the plaintiff, so induced, will not 
 constitute contributory negligence in law, and the de- 
 fendant will not be heard to say that the plaintifTs con- 
 duct under such circumstances is negligent, for the pur- 
 pose of a defense to the action. The defendant by his 
 own negligent conduct which has occasioned the conduct 
 of the plaintiff is estopped, in a certain sense, from 
 making the defense that the plaintiff's conduct was neg- 
 ligent, or in other words, he is not to be allowed first, 
 to induce the plaintiff to be careless, and then to plead 
 that carelessness as a defense to an action brought against 
 
 > Board of Internal Improvements &c., R. R. Co. v. Gastineon's Admr., 
 
 V. Scearce, 2 Duv. 576; Lexington v. Ct. of App., filed June 3, 1885; Jones' 
 
 Lewis' Admx., 10 Bush, 677; Claxton Admr. v. Louisville, &c., R. R. Co., 
 
 V. Lexington, &c , R. R. Co., 13 Super. Ct., filed March 28, 1885, and 
 
 Bush. 636. See, also, Louisville, &c., Louisville, &c., R. R. Co., v. Brooks' 
 
 R. R. Co. V. Collins, 2 Duv. 1 14, and Admr. (Ct. of App.), filed June 1 1, 
 
 three very recent cases; Kentucky, 1885, each to be reported. 
 
72 THE GENERAL RULE. [§ 23. 
 
 him for the mischief that has been the result. The 
 defendant must not take advantage of his own wrong in 
 such a way as that. When, for an example, a traveller, 
 upon approaching a railway crossing at a point where the 
 view is obstructed, stops and listens^ for the customary 
 signal, and, hearing nothing, drives upon the track and 
 is immediately run over by a passing train and injured, 
 the railway company will not be allowed to make the 
 defense that the plaintiff was negligent in relying upon 
 the fact that there was no whistle blown or bell rung 
 at the crossing, as evidence that no train was near. The 
 plaintiff in such a case, having been lulled into a feeling 
 of security by the defendant's negligent failure to make 
 the required signal, and having suffered an injury 
 thereby, may have his action.^ So, where the plaint- 
 iff acts in obedience to the directions, or assurances, of 
 the defendant, or his servants, upon whom he has a right 
 to rely, in doing the act deempd negligent, unless the 
 danger was a patent one, if he is injured in so doing he 
 may recover, as when a passenger does as the conductor 
 tells him to do in jumping from a train in motion, or in 
 otherwise exposing himself.* In these cases the defend- 
 ant having induced the plaintiff to act in a certain way 
 cannot, when injury results, set up that act as negligence 
 in defense. If the plaintiff exercises ordinary care and 
 prudence under the circumstances in relying upon the 
 
 • Pennsylvania R. R. Co. J/. Ogier. and 59 Id. 351 ; Pool w. Chicago, &c., 
 
 35 Penn. St. 60. See, also, Towler w. R. R. Co., 53 Wis. 659; s. c. 56 Id. 
 
 Baltimore, &c., R. R. Co., 18 West 227; St. Louis, &c., R. R. Co. v. Can- 
 
 Va. 579; Philadelphia, &c., R. R. trail, 37 Ark. 519; s. c. 40 Am. Rep. 
 
 Co. V. Hogan, 47 Penn. St. 244; 105; Towler i/. Baltimore, &c., R. R. 
 
 Ernst z/. Hudson River R. R, Co.. 35 Co.. 18 West Va. 579. See, also, 
 
 N. Y. 28; Chicago, &c., R. R. Co. v. Hickey v. Boston, &c., R. R. Co., 14 
 
 Tnplett, 38 III. 488. Allen, 429; Pennsylvania R. R. Co. 
 
 2 Louisville, &c., R. R. Co. v. Kel- v. Aspell, 23 Penn. St. 147 ; S. C 6i 
 
 ly, 92 Ind. 371 ; s C 47 Am. Rep. Am. Dec. 323; Philadelphia, &c., R. 
 
 149 ; Filer V. New York &c., R. R. Co., R. Co. v. Boyer, 97 Penn. St gi . 
 49 N. Y. 471 ; s. C. 10 Am. Rep. 327, ^ 
 
§ 24.] THE GENERAL RULE. 73 
 
 defendant's inducement, or in obeying defendant's orders 
 and directions, he may have his action. 
 
 § 24. Mitigation and apportionment of damages. — As 
 a general rule, contributory negligence is never looked to 
 in mitigation of damages, and whenever it is a defense at 
 all it is a complete defense to the action. When both 
 parties have been guilty of negligence, it is said that " the 
 law has no scales to determine, in such cases, whose 
 wrong-doing' weighed most in the compound that occa- 
 sioned the mischief." ^ And, to the same eflFect, Pollock, 
 C. B., in Greenland v. Chaplin,^ says : " The man who is 
 guilty of a wrong, who thereby produces mischief to an- 
 other, has no right to say ' part of that mischief would 
 not have arisen if you had not yourself been guilty of 
 some negligence.' " But, while this is the usual rule^ 
 when, as we have seen,* the negligence of the plaintiff 
 contributed not to cause, but merely to aggravate the 
 injury, the rule is otherwise, and in those cases the de- 
 fendant, to catch the phrase of Baron Pollock, may say, 
 " part of that mischief would not have arisen if you had 
 not yourself aggravated the injury which my negligence 
 caused," and whenever the injury produced by the plaint- 
 iff's negligence is capable of a distinct separation and 
 apportionment from that produced by the defendant, such 
 an apportionment must be made, and the defendant held 
 liable only for such a part of the total damage as his neg- 
 . ligence produced.* This is well illustrated by the facts in 
 
 > Railroad Co. v. Norton, 24 Penn. Wright v. Illinois, &c., Telegraph Co., 
 
 St. 469. 20 Iowa, 19s; Gould v. McKenna, 86 
 
 " 5 Exch. 243. Penn. St. 297 ; S. C. 27 Am. Rep. 705 ; 
 
 ' p§ II and 19, supra. Stebbins v. Central, &c., R. R. Co.,. 
 
 * Nitro Phosphate Qo.v. Docks Co., 54 Vt. 464 ; S. C. 41 Am. Rep. 855 ; 
 
 9 L. R. Ch. Div. 503 ; Sills v. Brown. Matthews v. Warner, 29 Gratt. 570 ; 
 
 9 Car. & P. 601 ; Thomas v. Kenyon, S. C. 26 Am. Rep. 396 ; Secord v. 
 
 I Daly, 132; Hunt v. Lowell Gas Co., St. Paul, &c., R. R. Co., 5 McCrary, 
 
 I Allen, 343; Sherman z*. Fall River 515; Hibbard v. Thompson, 109 
 
 Iron Co, 2 Id. 524; Chase v. New Mass. 286. 
 York. &c., R. R. Co., 24 Barb. 273 ; 
 
74 THE GENERAL RULE. [§ 24. 
 
 the case of Gould v. McKenna.^ The defendant had so 
 constructed and maintained the roof of his building that 
 the water flowed therefrom upon the wall of the plaint- 
 iff's adjoining building, and, penetrating it, damaged his 
 goods. As a defense to the action the defendant plead 
 the openness and looseness of the plaintiff's wall, and 
 charged that the condition of the wall made a case of 
 contributory negligence on the part of the plaintiff. It 
 appeared in evidence that the improper construction of 
 the defendant's roof was the cause of the injury, but that 
 the bad condition of the plaintiff's wall had materially 
 aggravated it. The water ran down into the plaintiff's 
 store because the defendant had built his roof as he had, 
 but the leak was much worse than it would have been had 
 there been no cracks and chinks in the plaintiff's wall. 
 The court held that these two causes of injury were sep- 
 arable and independent ; that the defendant was liable for 
 so much of the damage as was due to the improper con- 
 struction of his roof, but not for that which was due to 
 the open condition of the wall, and that it was the duty 
 of the jury to apportion the loss according to the actual 
 injury of the defendant, by separating it, as well as they 
 could upon the evidence, from the loss arising from the 
 openness of the wall ; that although there might be a 
 practical difficulty in separating the damage from each in- 
 dependent cause, still that difficulty constituted no reason 
 for declining to undertake it, and that it did not change 
 the nature of the tortious act of the defendant nor relieve 
 him from liability, for the reason that a negligence which 
 has no operation in causing the injury, but which merely 
 adds to the' damage resulting, cannot be a bar to the ac- 
 tion, although it will detract from the damages as a 
 whole.^ Perhaps it is safe to remark that this is rather a 
 
 1 Supra. Parker, 53 N. H. 342; s. c. 16 Am. 
 
 ^ See, also, in this connection, the Rep. 270. 
 learned and exhaustive case of Fay v. 
 
§ 24-] THE GENERAL RULE. 75 
 
 dangerous doctrine. There is an obvious misapplication 
 of it in the case of Wright v. Illinois, «Slc., Telegraph Co.,^ 
 which Judge Thompson has called attention to,* In Ten- 
 nessee the courts make an application of it, which is very 
 like the rule in Illinois and in Kansas. If not exactly, it 
 is almost comparative negligence.^ And in Georgia this 
 doctrine has been adopted in connection with the rule in 
 Davies v. Mann,* and applied and elaborated in such a 
 way as to make the rule in that State at least in the judg- 
 ment of so discriminating a jurist as Dr. Wharton, also 
 equivalent to the rule of comparative negligence.* 
 
 But, however, it may have been misapplied, and not- 
 withstanding its tendency toward the doctrine of compar- 
 ative negligence, the rule as stated at the head of this 
 section, and as illustrated in the case of Gould v. Mc- 
 Kenna,* and applied in the cases generally cited above in 
 its support, has a sound basis in the logic of the law, and 
 subserves the ends of substantial justice. 
 
 1 20 Iowa, 195. 215. '&c., R. R. Co. v. Davis, 18 Ga. 
 
 * Thomp. on Neg., 1163. 686; Augusta, &c., R. R. Co. v. 
 'Nashville. &c., R. R. Co. v. Car- McElmurry, 24 Ga. 75; Macon, &c., 
 
 roll, 6 Heisk. 347; Nashville, &c., R. R. R. Co. v. Johnson, 38 Ga. 409; 
 
 R. Co. V. Smith, 6 Heisk. 174; Whir- Hendricks z/. Western, &c., R. R. Co., 
 
 ley w. Whiteman, i Head, 619; Dash 52 Ga. 467; Atlanta, &c., R. R. Co. 
 
 V. Fitzhugh, 2 Lea, 307. This need v. Ayers, 53 Ga. 12. See, also, the 
 
 not be discussed here, as the " Ten- discussion of the " Georgia rule," in 
 
 nessee rule " is fully considered in the the succeeding chapter. 
 
 following chapter q. v. « 86 Penn. St. 297 ; s. C. 27 Am. 
 
 * 10 Mee. & W^. 545. Rep. 705, supra. 
 ' Wharton on Neg , § 334 ; Macon, 
 
CHAPTER III. ' 
 
 COMPARATIVE NEGLIGENCE.— THE MODIFIED RULE IN ILLI- 
 NOIS, KANSAS, GEORGIA, TENNESSEE, AND KENTUCKY. 
 
 25. Comparative Negligence. 
 25. This modification generally repu- 
 diated, 
 27, The rule in Illinois. 
 
 § 28. The rule in Kansas. 
 
 29. The rule in Georgia. 
 
 30. The rule in Tennessee. 
 
 31. The rule in Kentucky. 
 
 § 25. Comparative Negligence. — Instead of the gen- 
 eral rules of law concerning contributory negligence, 
 which, as we have seen, prevail in England and in most 
 of the States of the Union, an exceptional doctrine — 
 known as the rule of comparative negligence — obtains 
 in several jurisdictions in this country. When an injury 
 results to one of two parties from the mutual and con- 
 curring negligence of both of them the one who suffers 
 the injury can, according to the prevalent doctrine, 
 recover nothing from the other by way of compensation 
 or damages. The contributory negligence of the injured 
 party is a defense and a complete defense to the action, 
 because " the law has no scales to determine, in such 
 cases, whose wrong-doing wejghed most in the compound 
 that occasioned the mischief."^ The common law refuses 
 either to apportion the damages as best it may, giving 
 to each man according to his deserts, as far as they can 
 be ascertained, or to divide the damages equally between 
 the parties in fault, as in the rusticum judicium of the 
 admiralty, and " the reason why, in cases of mutual, con- 
 curring negligence, neither party can maintain an action 
 
 1 Railroad v. Norton, 24 Penn. St. 469. 
 
§ 25-] COMPARATIVE NEGLIGENCE. -j-] 
 
 against the other," said Mr. Justice Strong,^ " is not that 
 the wrong of the one is set-off against the wrong of the 
 other ; it is, that the law cannot measure how much the 
 damage suffered is attributable to the plaintiff's own 
 fault." Upon considerations of public policy and general 
 convenience the common law has steadily refused either 
 to enforce contribution between tort feasors, or to parcel 
 out the damages between the parties in cases of injury 
 from mutual and concurring neglect. In those jurisdic- 
 tions, however, where the doctrine of comparative neg- 
 ligence obtains, the courts have proceeded upon an 
 exactly contrary theory. They assume it to be at once 
 possible and judicious to compare the negligence of the 
 plaintiff with the negligence of the defendant, in these 
 actions, for the purpose of determining where the ulti- 
 mate liability for the injury shall rest, and if, upon such 
 a comparison, judicially instituted, the negligence of the 
 plaintiff appears to have been slight, while that of the 
 defendant was gross — the plaintiff may have his action. 
 This is something more than a modification of the usual 
 rule. Under its operation contributory negligence is no 
 longer a defense. It completely ignores the principle of 
 compensation in awarding the damages, and proceeds 
 upon the theory of punishment. It contradicts the rule 
 it assumes to qualify. The rule is that contributory 
 negligence is a defense. The qualification is that it is 
 not a defense. Reduced to a canon it amounts to this : 
 Slight negligence on the part of a plaintiff, although 
 never so much contributory negligence, is not a defense 
 to gross negligence on the part of the defendant.^ 
 
 The term "gross negligence," as used in this rule, 
 
 1 Heil V. Glanding, 42 Penn. St. &c., R. R. Co. v. Clark, 108 Id. 113; 
 459. Pacific, &c., R. R. Co. v. Houts, 12 
 
 2 Galena, &c., R. R. Co. v. Jacobs, Kan. 328 ;"Central, &c., R. R. Co. v. 
 ■2a 111. 478; Illinois, &c., R. R. Co. v. Gleason, 69 Ga. 200. 
 Hetherington, 83 Id. 510; Chicago, 
 
78 COMPARATIVE NEGLIGENCE. [§ 25. 
 
 must be understood to mean, not negligence merely, on 
 the one hand, as some English authorities suggest,^ nor 
 wilful negligence on the other hand, but that absence of 
 slight care which is mere inadvertence in a very high 
 degree. It means nonfeasance or misfeasance in the 
 extreme, but not malfeasance. The rule in question 
 recognizes the three degrees of negligence with their 
 reciprocal grades of carefulness,^ and it implies a compar- 
 ison of the negligence of the plaintiff with that of the 
 defendant — by these degrees. It is not the rule that a 
 mere preponderance of negligence on the part of the 
 defendant will warrant a recovery,* nor that the plaintiff 
 may have his action, unless he was guilty of more care- 
 lessness,* or greater negligence,® than the defendant. 
 The comparison to be instituted is not precisely like that 
 made by a book-keeper of the two sides of his accounts, 
 and the rule is not meant to regard slight differences in 
 the relative amounts of negligence, of plaintiff and 
 defendant. There is no attempt to balance to a cent, 
 or, in other words, using the figure of Mr. Justice Wood- 
 ward in a case already cited,* the scales are not graduated 
 to fractions of a degree, and unless there is a difference 
 in favor of the plaintiff" of at least one whole degree the 
 rule cannot apply. "The rule of this court is," say 
 Scholfield, J., in Rockford, Rock Island & St. Louis R. 
 R. V. Delaney,'' " that the relative degrees of negligence^ 
 in cases of this kind, is matter of comparison, and that 
 
 1 Hinton V Dibbin, 2 Q. B. 646, 61 111. 385. But compare Illinois, 
 
 661 (by Denhain, C. J.); Wilson v. &c., R. R. Co. z/. Middlesworth, 43 
 
 Brett. II Mee. & W. 113 (by Baron 111. 64. 
 
 Rolfe); Grill z/ Genl. &c., ColUer = Illinois, &c., R. R. Co. v. Maffit. 
 
 ^"•'^u.-^' ' S- -^-J^' ^'^- ^7 111. 431 ; Joliet V. Seward, 86 111. 
 
 Chicago, &c., R. R. Co. v. John- 402. But see Macon, &c., R. R. Cb. 
 
 son, 103 111. 512. V. Davis, 27 Ga. 113, 119. 
 
 Indianapolis &c. R. R. Co. v. ' Railroad Co. v. Norton, 24 Penn. 
 
 Evans, 88 111. 63; Chicago, &c., R. St. 465. 
 
 ^■S°;y- Dimick,96Id.42. 7 82 111. 196; s. c. 25 Am. Rep. 
 
 * Chicago, &c.,R.R. Co. ». Dunn, 308. 
 
§ 26.] COMPARATIVE NEGLIGENCE. 
 
 79 
 
 the plaintiff may recover although his intestate was guilty 
 of contributory negligence, provided the negligence of 
 the intestate was slight and that of the defendant gross in 
 comparison with each other ; and, consequently, if the 
 intestate's negligence was not slight, and that of the 
 defendant gross in comparison with each other, there can 
 be no recovery." 
 
 The doctrine of comparative negligence had its origin, 
 as it seems from a consideration of the first case in which 
 it is distinctly declared,^ in a misunderstanding of the 
 effect of previous decisions, and also in an attempt to 
 reconcile the rule laid down in the English case of Davies 
 V, Mann,* with the generally established doctrines of the 
 law of contributory negligence. It prevails to its full 
 extent in but a single State of the Union. In Illinois, 
 where it originated, it is, as will appear hereafter,* the 
 established rule, and in Georgia, Kansas, Kentucky and 
 Tennessee, and possibly elsewhere — jurisdictions where 
 it has not been explicitly repudiated, as it has been in a 
 majority of the States, the courts have either followed 
 the Illinois rule, or proceeded independently upon a par- 
 allel theory to a greater or less extent. In each of these 
 States we find a rule upon the subject of contributory 
 negligence sui generis, and, in each, savoring somewhat 
 of the rule of comparative negligence. This chapter is 
 written to set out and illustrate the law in these juris- 
 dictions seriatim, so far as it is in any material particular 
 anomalous. 
 
 § 26. This modification generally repudiated. — The 
 doctrine of comparative negligence, being so entirely at 
 variance with the accepted rules of law concerning con- 
 tributory negligence, has very naturally provoked much 
 
 > Galena, &c., R. R. Co. v. Jacobs, ^ 10 Mee. & W^. 546. 
 20 111. 478. ^ § 27, infra. 
 
8o COMPARATIVE NEGLIGENCE. [§ 26. 
 
 sharp criticism,- and the courts of other States, very 
 occasionally repudiate it with emphasis. The Court of 
 Appeals of New York in an early case — when the rule 
 of comparative negligence had just been announced — 
 said : " The question presented to th^e court or the jury- 
 is never one of comparative negligence, as between the 
 parties, nor does very great negligence on the part of a 
 defendant so operate to strike a balance as to give a 
 judgment to a plaintiff whose own negligence contributed 
 
 in any degree to the injury The law says 
 
 to the defendant: If you have by simple negligence 
 caused this injury, so far as you are concerned the ground 
 of action is complete. At the same time it says to the 
 plaintiff: Although, so far as the defendant's acts are 
 concerned, the case is made out, yet cannot prevail if you 
 have by your simple negligence helped to bring about 
 the injury." ^ So, also, the Supreme Court of Indiana, 
 in a- late case, says : " We agree with counsel that the 
 doctrine of comparative negligence is unsound. We 
 have no doubt that the rule is that, in actions to recover 
 for injuries caused by negligence, the contributory negli- 
 gence of the plaintiff will defeat the action, although it 
 is much less in degree than that of the defendant."^ 
 And in O'Keefe v. Chicago, &c., R. R. Co.,* it is said by 
 the Supreme Court of Iowa: "This court recognizes 
 and applies the doctrine of ' contributory negligence,' and 
 not the doctrine of ' comparative negligence,' The latter 
 doctrine obtains only in Illinois and Georgia, while the 
 
 1 Judge Thompson says it is a rule doctrine with some severity. Perhaps 
 
 "not hkely to be adopted in any his judgment upon such a point is not 
 
 other State where it does not now inferior to that of any contemporary 
 
 prevail.unless by legislation," (Thomp. critic. r j 
 
 on Neg., n68, § 16,) and the author 2 Wilds v Hudson River R R 
 
 remembers, when a law student, to Co., 24 N. Y 432 
 
 have heard Prof. Theodore W. » Pennsylvania ' Co. 7/. Roney, 80 
 
 Dwight, m his lectures in the Colum- Ind. 453; s. c. 46 Am. Rep. 173. 
 
 bia College Law School, criticise this * 32 Iowa, 467. 
 
§ 2 7-] COMPARATIVE NEGLIGENCE. 8 1 
 
 former obtains in the other States, and also in the Fed- 
 eral Courts.^ The Illinois doctrine is also expressly 
 denied in New Jersey,* Alabama,^ Wisconsin,* Kansas,® 
 Texas,* Massachusetts,'' Pennsylvania,* and Kentucky.® 
 
 § 27. The rule in Illinois. — In the earlier cases in 
 the Illinois reports the doctrine of contributory negli- 
 gence is plainly declared. It was the uniquestioned rule 
 in that State " as in all other jurisdictions where the 
 English common law prevails, until, in the case of the 
 Galena and Chicago Union R. R. Co. v. Jacobs," Mr. 
 Justice Breese worked out the theory of compara- 
 tive negligence. There is no hint of it in any earlier 
 case in the Illinois reports. To this early decision, and to 
 this judge, is, therefore, properly ascribed the origin of 
 the doctrine. It is put forward as a qualification of the 
 rule that contributory negligence is a defense, but it 
 contradicts entirely the rule it assumes to. qualify, and 
 proceeds upon a theory the very opposite of that which 
 justifies the original doctrine. It ignores the principle of 
 compensation, and proceeds upon the theory of punish- 
 ment. It gives damages to the plaintiff not because he 
 has suffered -an injury, but it makes the defendant pay 
 damages because he is very much more to blame than the 
 plaintiff It gives damages to the plaintiff for an injury 
 which he helped to inflict upon himself, because he was 
 
 ^ See, also, Artz v. Chicago, &c., ' Marble v. Ross, 124 Mass. 44. 
 
 R. R. Co., 38 Iowa, 293. » Railroad Co. v. Norton, 24 Penn. 
 
 * Pennsylvania Co. v. Righter, 42 St. 469 ; Heil v. Glanding, 42 Id. 
 N. J. Law, 180. 499; Stiles v. Geesey, 71 Penn. St. 
 
 ' Gothard v. Alabama, &c., R. R. 439; Potter v. Warner, 91 Penn. St. 
 
 Co., 67 Ala. 114. 362; s. C. 36 Am. Rep. 668. 
 
 * Potter V. Chicago, &c., R. R. » Digby w. Kenton Iron Works, 8 
 Co., 21 Wis. 372; S. C. 22 Wis. 61 S; Bush, 166. 
 
 Cunningham v. Lyness, 22 Wis. 245. ' " Aurora, &c., R. R. Co. v. Grimes, 
 
 5 Kansas, &c,, R. R. Co. v. Peavey, 13 111. 585 ; Galena, &c., R. R. Co. v. 
 
 29 Kan. 170; s. C, partially reported, Foy, 16 111. 558; s. C. 63 Am. Dec. 
 
 in 44 Am. Rep. 630, omitting this point. 323 ; Chicago, &c., R. R. Co. v. Swee- 
 
 * Houston, &c., R R. Co. v. Gor- ney, 52 Id. 330. 
 bett, 49 Texas, 573. • * 20 III. 478. 
 
 6 
 
82 COMPARATIVE NEGLIGENCE. [§ 2'J, 
 
 not very much in fault, and makes the defendant pay 
 damages for an injury for which he is only partially re- 
 sponsible, because he behaved decidedly worse, upon the 
 whole, than the plaintiff did. 
 
 But let the cases speak for themselves : In Galena, 
 &c., R. R. Co. V. Jacobs,^ the case in which the doctrine 
 of comparative negligence was first announced, the court, 
 " after reviewing a number of decisions, none of which 
 announced such a rule as that in question" '^ says, " it will 
 be seen from these cases that the question of liability 
 does not depend absolutely on the absence of all negli- 
 gence on the part of the plaintiflF, but upon the relative 
 degree of care, or want of care, as manifested by both 
 parties, for all care, or negligence, is, at best, but relative p 
 the absence of the highest possible degree of care show- 
 ing the presence of some negligence, slight as it may be. 
 The true doctrine, therefore, wt think is, that, in propor- 
 tion to the negligence of the defendant, should be 
 measured the degree of care required of the plaintiff, that 
 is to say, the more gross the negligence manifested by the 
 defendant, the less degree of care will be required of the 
 plaintiff to enable him to recover," and the conclusion of 
 the whole matter is found in these words : " We say, then, 
 that, in this, or in all like cases, the degrees of negligence 
 must be measured and considered, and whenever it shall 
 appear that the plaintiff's negligence is comparatively 
 slight, and that of the defendant gross, he shall not be 
 deprived of his action."* The rule as thus conveniently 
 formulated has never since been challenged in that State, 
 and a long line of subsequent decisions reiterate this 
 anomalous doctrine without addition or abatement* 
 
 \ '^^^} • '^'^^- X, . ^- Co. V. Hazzard, 26 Id. 373 ; Bass 
 
 ! Thomp. on Neg., 1169, note. v. Chicago, &c., R. R. Co., 28 Id. 9: 
 
 The Jacobs Case, at page 496 St. Louis, &c., R. R. Co. v. Todd, 36 
 
 ^Chicago &c., R. R., Co. v. Id. 409; Coursen z/. Ely, 37 Id. 338; 
 
 Dewey, 26 111. 255; Chicago, &c., R. Illinois, &c., R. R. Co. i/. Simmons, 
 
§ 2 7.J ' COMPARATIVE- NEGLIGENCE. 83 
 
 In Chicago and Northwestern R. R. Co. v. Sweeny,^ 
 we find the following detailed re-assertion of the rule of 
 comparative negligence, by the same judge who delivered 
 the opinion in the first case in which the doctrine is an- 
 
 38 Id. 242; Chicago, &c., R. R. Co. Rep. 112; Chicago, &c., R. R. Co. v. 
 V. Hogarth, 38 Id. 370; Id. v. Triplett, Mock, 72 111. 141 ; Illinois, &c., R. R. 
 38 Id. 482 ; Great Western R. R. Co. Co. v. Hall, 72 Id. 222 ; Rockford, 
 V. Haworth, 39 Id. 346; Chicago, &c., &c , R. R. Co. v. Hillmer, 72 Id. 235; 
 R. R. Co. V. McKean, 40 Id. 218; Illinois, &c., R. R. Co. v. Hammer, 
 Ohio, &c., R. R. Co. v. Eaves, 42 Id. 72 Id. 347; S. C. 85 Id. 526; Grand- 
 288 ; Illinois, &c.. R. R. Co. v. Mills, tower Manfg. Co. v. Hawkins, 72 Id. 
 42 Id. 407 ; Id. V. Middlesworth, 43 Id. 386 ; Hund v. Geier, 72 Id. 393 ; Rock- 
 64; S. C. 46 Id. 494; Ortmayer v. ford, &c., R. R. Co. v. Irish, 72 Id. 
 Johnson, 45 Id. 469; Chicago, &c., 404; Illinois, &c., R. R. Co., iy. God- 
 R. R. Co. V. Gretzner, 46 Id. 74; dard, 72 Id. 567; Rockford, &c., R. 
 Ohio, &c., R. R. Co. v. Shanefelt, 47 R. Co. v. Rafferty, 73 Id. 58; Fair- 
 Id. 497 ; Illinois, &c., R. R. Co, v. bank v. Haentzsche, 73 Id. 236 ; 
 Frazier, 47 Id. 505; Chicago, &c., R. Chicago, &c., R. R. Co. v. Coss, 73 
 R. Co. V. Payne, 49 Id. 499; S. C. 59 Id. 394; Id. v. Donahue, 75 Id. 106; 
 Id. 534; Illinois. &c., R. R. Co. v. Toledo, &c,, R. R. Co. v. O'Connor, 
 Nunn, 51 111. 78; Id. v. Pondrom, 51 ^^ Id. 391 ; Chicago, &c., R. R. Co. 
 Id. 333; S. C. 2 Am. Rep. 306; Id. v. v. Hatch, 79 Id. 137; Kewanee v. 
 Sweeny, 52 111. 325 ; Id. v. Fears, 53 Depew, Sold. 119; Sterling Bridge Co. 
 Id. 115; Toledo, &c., R. R. Co. v. v. Pearl, 80 Id. 251; Litchfield Coal 
 Pindar, 53 Id. 447 ; S. C. 5 Am. Rep. Co. v. Taylor, 81 Id. 590 ; Rockford, 
 57; Kerr v. Forgue, 54 111 482; S. C. &c., R.R. Co. v. Delaney, 82 Id 198 ; 
 S Am. Rep. 146; Chicago, &c., R. R. S. C. 25 Am. Rep. 308; City of Chi- 
 Co. V. Simonson, 54 Id. 504; S. C. 5 cago v. Hesing, 83 111. 204; S. C. 25 
 Am. Rep. 155; Illinois, &c., R. R. Am. Rep. 378; Schmidt t/. Chicago, 
 Co. w. Baches, 55 111. 379; Brown v. &c., R. R. Co., 83 111. 405 ; Illinois, 
 Hard, 56 Id. 317; Chicago, &c., R. &c., R. R, Co. v. Hetherington, 83 
 R. Co. V. Gregory, 58 Id. 272; St. Id. 510; Foster z/. Chicago, &c., R.R. 
 Louis, &c., R. R. Co. v. Manly, 58 Co., 84 Id. 164; Quinn v. Donovan, 
 Id. 300; Chicago, &c., R. R._ Co. v. 85 Id. 194; Grayville v. Whitaker, 85 
 Lee, 60 Id. 501 ; S. C. 68 Id.' 566; 87 Id. 439; joliet v. Seward, 86 Id. 402; 
 Id. 454; Chicago, &c., R. R. Co. v. Indianapolis, &c., R. R. Co. v. Evans. 
 Dunn, 61 Id. 385 ; s. C. 52 Id. 451 ; 88 Id. 63; Toledo, &c., R. R. Co. v. 
 Indianapolis, &c., R. R. Co., v. Sta- Grable, 88 Id. 441 ; Wabash, &c., R, 
 bles, 62 Id. 313; Chicago, &c., R. R. R. Co. ■v. Henks, 91 Id. 406; Ohio, 
 Co. V. Murray, 62 Id. 326; s. C. 71 Id. &c., R. R. Co. v. Porter, 92 Id. 437 ; 
 601 ; Id. V. Sullivan, 63 Id. 293 ; Id. Hayward v. Miller, 94 Id. 349 ; S. C. 
 V. Van Patten, 64 Id. 510; S. C. 74 34 Am. Rep, 229; Stratton.7/. Cen- 
 Id. 91; Toledo, &c., R. R. Co. v. tral Street Ry. Co., 95 Id. 25; 
 Spencer, 66 Id. 528; Illinois, &c., R. Chicago, &c., R. R. Co. v. Dimick, 96 
 R. Co. V. Maffit, 67 Id. 431; Pitts- Id, 42; Id, w. Johnson, 103 Id. 512; 
 burg, &c., R. R. Co., v. Kuntson, 69 City of Chicago v. Stearns, 105 Id. 
 Id. 103; Illinois, &c., R. R. Co. v. 554; Chicago, &c., R. R. Co. w. Clark, 
 Benton, 69 Id. 174; Chicago, &c., R. 108 Id. 113 ; Id. v. Langley, 2 Bradw. 
 R. Co. V. Clark, 70 Id. 276; Illinois, 505; North Chicago, &c., Mills v. 
 &c., R. R. Co. V. Cragin, 71 Id. 177; Monka, 4 Id. 664; Chicago, &c., R. 
 Toledo, &c., R. R. Co. v. McGinnis, R, Co. v. Lewis, 5 Id. 242 ; Glover v. 
 71 Id. 346; Illinois, &c., R. R. Co. v. Gray, 9 Id. 329. 
 Godfrey, 71 Id. 500; S. C. 22 Am. 152111,330, 
 
84 COMPARATIVE NEGELIGENCE. [§ 27. 
 
 nounced.^ "As some misapprehension seems to exist 
 in respect to the extent this court has gone in discussing 
 the doctrine of comparative negligence, it may not be 
 amiss to review the several cases on that subject. 
 
 " But for that purpose it is not necessary to go back of 
 the case of the Galena and Chicago Union R R. Co. v. 
 Jacobs, 20 111. 478, as in that case all the previous de- 
 cisions were reviewed and commented upon. Jacobs' 
 case was the first case announcing the doctrine of com- 
 parative negligence, the received rule prior thereto hav- 
 ing been if there was any negligence on the part of the 
 plaintiff he could not recover. The English cases on 
 this point were cited and commented on." Then follows 
 a statement of the rule in the Jacobs case, that part of 
 the opinion in that case which I have quoted above be- 
 ing repeated in ipsissimis verbis and re-announced as the 
 correct rule. The learned judge continues: " Following 
 this case " (meaning the Jacobs case), " was the case of 
 the Chicago, Burlington and Quincy R. R. Co. v. Dewey, 
 26 Ibid. 255, where it was said, it was not enough to 
 show a railroad company guilty of negligence, but it 
 must appear that the injured party was not also negli- 
 gent and blamable. Each party must employ all reason- 
 able means to foresee and prevent" injury, and if the neg- 
 ligence of one party is only slight, and that of the other 
 appears gross, a recovery may be had. In the case of the 
 same railroad company against Hazzard, Ibid 373, the 
 ruling^ in Jacobs' case was commented upon and ap- 
 proved. The next case in the order of time, having ref- 
 erence to injury to persons, is that of the Chicago, Bur- 
 lington and Quincy R. R Co. v. Triplett's Admr., 38 
 Ibid 482, in which it was again said although the plaint- 
 iff may have himself been guilty of some degree of neg- 
 
 ' Breese, J., in Galena, &c., R. R. Co. v. Jacobs, 20 lU. 478. 
 
§ 2 7.] COMPARATIVE NEGLIGENCE. 85 
 
 ligence, yet if it be but slight, in comparison with that of 
 the defendant, it should be no bar to his recovery. No 
 inflexible rule can be laid down. Each case must de- 
 pend upon its own circumstances, and the question of 
 comparative negligence must be left to the jury, under 
 
 the supervision of the court The rule 
 
 is the same in actions against railroad companies for in- 
 juries to personal property." 
 
 This is the doctrine as the late Chief Justice Breese, 
 the father of the rule in question, understood it. It is not 
 a rule of contributory negligence at all, but a law under 
 which men are fined for gross negligence, the fine being 
 paid over to the plaintiff, if he, on his part, has been 
 guilty of only slight negligence. It had its origin ap- 
 parently from a misunderstanding, on the part of the 
 judge who first declared the rule, as to the effect of pre- 
 vious decisions. He seems to have thought that he found 
 his rule in the earlier Eijglish and American cases that 
 he cites. " Although these cases," said he,^ " do not dis- 
 tinctly avow this doctrine in terms, there is a view of it, 
 very perceptible, running through very many of them, as, 
 where there are faults on both sides, the plaintiff" shall 
 recover, his fault being to be measured by the defend- 
 ant's negligence, the plaintiff" need not be wholly without 
 fault as in Raisin v. Mitchell, 9 Car. & P. 613, and 
 Lynch v. Nurdin, i Q. B. 29." This language indicates 
 very plainly that the learned chief justice misunderstood 
 the effect of these decisions, and that he founded his theory 
 upon this misapprehension. It is the essentially unani- 
 mous judgment of common law judges and lawyers 
 throughout every jurisdiction where that law obtains, 
 that these cases are not the smallest authority for such a 
 doctrine as the Illinois Supreme Court maintains. The 
 
 ' Galena, &c,, R. R. Co. t/. Jacobs, 20 111. 478, 496. 
 
86 COMPARATIVE NEGLIGENCE. [§ 27. 
 
 mistake is, it is believed, in confounding the two essen- 
 tial elements vi^hich must concur to render negligence 
 contributory negligence, (a) a want of ordinary care on 
 the part of the plaintiff, and (<5) a proximate connection 
 between such want of care and the injury complained of. 
 The rule that the plaintiflF may have his action whenever 
 his negligence is merely the remote cause of the mis- 
 chief, while that of the defendant is the proximate cause, 
 is, in the rule of comparative negligence, rewritten so as 
 to make it that the plaintiff may recover when his own 
 negligence is slight and that of the defendant gross. 
 This confuses two essentially different things, and in such 
 a way as to destroy the rule upon which only a refine- 
 ment is attempted. Either contributory negligence in 
 its true juridical sense is, or it is not, a defense. If it is 
 a defense, as the general rule declares, then there is no 
 room for such a theory as that of Mr. Justice Breese; if 
 it is not a defense then the whole theory upon which our 
 law in this behalf has been made to rest falls to the 
 ground. 
 
 Under the Illinois rule the question of proximateness 
 and remoteness as regards the cause of the injury does 
 not arise. The question is not whose negligence was the 
 proximate cause, but was the negligence of one party slight 
 and that of the other gross. ' It will be conceded without 
 argument ; ^rsit, that this is a much easier question to 
 answer than that ; that juries can far more readily com- 
 pare one man's conduct with another's, than they can 
 determine so metaphysical a question as that of causa- 
 tion ; that it makes the question concrete instead of ab- 
 stract, and brings it nearer to the common sense of the 
 average juror; and second, that correct conclusions can be 
 reached perhaps as often under this rule as under the 
 other, that while the reason and the reasoning will be 
 wrong the result attained may be correct. We catch a 
 
§ 2;.] COMPARATIVE NEGLIGENCE. 87 
 
 glimpse of the process by which this rule has been worked 
 out in the dictum of Mr. Justice Valentine in his opinion 
 in Union Pacific R. R. Co. v. Rollins.^ "An act that 
 may be grossly negligent if it proximately contributes to 
 the injury may be reasonably careful if it only remotely 
 contributes thereto." 
 
 Whether the act was gross negligence or slight negli- 
 gence, or ordinary negligence, is one thing, to be deter- 
 mined upon a consideration both of the intrinsic character 
 of the act itself, and of the circumstances under which it 
 was performed, and whether or not it was the proximate 
 cause of an injury is another thing, to be determined upon 
 a consideration of the law of cause and effect. 
 
 While it may be said in favor of this rule that it is a 
 convenient one for the jury, and that under its operation 
 a correct result is frequently reached, it may also be sug- 
 gested that it is rather a poor reason for having one's rule 
 wrong, that it gives the right answer about as often as 
 the true rule.^ By reading the Illinois cases attentively 
 it will be found that, very frequently, when the plaintiff 
 has had a judgment under the rule of comparative negli- 
 gence, if a correct result was reached, what the judges 
 called the " gross negligence " of the defendant was, in 
 truth, nothing more than negligence merely that was the 
 proximate cause of the injury, while what they called the 
 " slight negligence " of the plaintiff was negligence merely 
 that was only a remote cause, or condition of the injury. 
 " But if such negligence was only slight, or the remote 
 cause of the injury" says the Supreme Court of Kansas,' 
 in announcing the rule of comparative negligence, " the 
 plaintiff may still recover, notwithstaiiding such slight 
 negligence or remote caused Sometimes also the " gross 
 
 ' 5 Kan. 167, 182. ^ Sawyer v. Sauer, 10 Kan. 466. 
 
 2 Cf. Wharton on Neg., § 335. 
 
88 COMPARATIVE NEGLIGENCE. [§ 2/. 
 
 negligence" of the defendant is wilful negligence,, and 
 then, upon familiar grounds, the plaintiff should have his 
 action. In both these classes o'f cases a correct conclusion 
 is reached under the rule of comparative negligence, no 
 more and no less a correct conclusion, however, than would 
 have been reached by the application of the general rules 
 of contributory negligence, and quod hoc the rule applied 
 was not in reality a rule of comparative negligence at all. 
 It was a true application of the established rules of law 
 in point. But in the third and remaining class of cases 
 there is a real application of this anomalous doctrine, and 
 the result is rank injustice. I mean that class of cases 
 where the negligence of the plaintiff, though what the 
 " court is pleased to denominate his " slight negligence," 
 is a proximate cause of the injury he suffers. In these 
 cases, under the rule of comparative negligence, the plaint- 
 iff recovers, or rather the defendant is compelled to pay 
 damages to the plaintiff, for an injury which the plaintiflf's 
 own negligence has materially assisted in producing. 
 
 This is comparative negligence, pure and simple, and, 
 without the admixture of the wholesome exceptional 
 rules of contributory negligence as in the two preceding 
 classes of cases, it is a rule which, Judge Thompson might 
 well say, "is not likely to be adopted in any other State 
 . . , unless by legislation." ^ 
 
 In order to a fair statement of this Illinois rule, it 
 must be emphasized that the plaintiff can recover, when 
 he has himself been guilty of contributory negligence, 
 only when his negligence is slight and the defendant's is 
 gross, in comparison with each other. The rule is that 
 gross negligence is ground for an action in spite of slight 
 
 » Thomp. on Neg., 1168 § 16. But, Id. 163, wherein there is a suggestion 
 
 compare, Bequette v. Peoples' Trans- that this rule finds some favor in at 
 
 portation Co., 2 Oregon, 200, and least one State on the Pacific coast. 
 Holstine v. Oregon, &c., R. R. Co., 8 
 
§ 2 7-] COMPARATIVE NEGLIGENCE. 89 
 
 negligence, or that slight negligence is not a defense when 
 the defendant's negligence is gross.^ In some of the 
 earlier cases the judges tripped a little in stating the doc- 
 trine, making it equivalent to a rule that a mere pre- 
 ponderance of negligence on the part of the defendant 
 was sufficient to warrant a recovery. It was said that 
 " he who is guilty of the greater negligence or wrong, 
 must be considered the original aggressor, and account- 
 able accordingly," * and that unless the defendant has 
 been guilty* of negligence more gross than the plaintiff 
 there can be no recovery.* But that this is an entire 
 misconception of the doctrine is expressly declared in 
 many later cases.* The settled rule seems to be that 
 the relative degrees of negligenpe are to be compared, 
 and that the plaintiff may recover, although guilty of 
 contributory negligence, provided his negligence was 
 slight and that of the defendant gross in comparison 
 with each other, and consequently that, whenever it ap- 
 pears that the plaintiff's negligence was not slight and 
 the defendant's gross in comparison with each other, 
 there can be no recovery." That the plaintiff's negli- 
 gence is slight is not alone sufficient. It must also ap- 
 pear, at the same time, in order to the action, that the 
 defendant's negligence was gross,* and whenever the 
 
 * See the cases generally cited &c., R. R. Co. v. Hammer, 72 Id. 347 r 
 above. Id. v. Goddard, 72 Id. 567 ; Chicago, 
 
 * Macon, &c., R. R. Co. v. Davis, &c., R, R. Co. v. Donahue, 75 Id. 
 27 Ga. 113, 119. Compare S. C. 13 106; Id. v. Hatch, 79 Id. 137 ; Joliet 
 Id. 68; 18 Id. 679. 7/. Seward, 86 Id. 402; Indianapolis, 
 
 3 Illinois, &c., R. R. Co. v. Middles- &c., R. R. Co. v. Evans, 88 Id. 63 ; 
 
 worth, 43 111. 64. .Compare St. Louis, Toledo, &c., R. R. Co. v. Grable, 88- 
 
 &c., R. R. Co. V. Todd, 36 111. 414. Id. 441 ; Chicago, &c., R. R. Co. w. 
 
 * Chicago, &c., R. R. Co. v. Dunn, Dimick, 96 Id. 42 ; Earlvillew. Carter, 
 61 111. 385 ; Chicago, &c., R. R. Co. 2Bradw. 34; Wabash, &c., R. R. Co. 
 V. Van Patten, 64 Id. 510; Illinois, 7/. Jones, 5 Id. 607. 
 
 &c., R. R. Co. V. Maffit, 67 111. 431 ; " Rockford, &c., R. R. Co. v. De- 
 Chicago, &c., R. R. Co. V. Lee, 68 laney, 82 111. 198; S. C 25 Am. Rep. 
 Id. 576; Illinois, &c., R. R. Co. v. 308. 
 
 Benton, 69 Id. 174 ; Chicago, &c., R. « Winchester v. Case, 5 Bradw. 
 
 R. Co. V. Mock, 72 Id. 141 ; Illinois, 486. 
 
90 COMPARATIVE NEGLIGENCE. [§ 28. 
 
 plaintiif' s negligence is of a higher degree, his right of 
 action is gone. If it is equivalent to a want of ordinary 
 care, even though the defendant's negligence was gross, 
 the plaintiff cannot recover,^ which is the same as to 
 say, that ordinary negligence, or any, higher degree than 
 slight negligence, is a defense to an action even for gross 
 negligence, under this rule. When the plaintiff's negli- 
 gence is gross there can be no recovery, according to a 
 recent decision,^ unless that of the person inflicting the 
 injury was wilful or criminal. 
 
 " Under this rule," says Judge Thompson,* " the negli- 
 gence of both parties may combine to produce the injury, 
 the negligence of the person injured may operate as a 
 factor in producing the injury, but it is excluded as a 
 factor in measuring the damages. The plaintiff's negli- 
 gence, or that of the person on account of whose injury 
 he sues, helps in some degree to produce the injury, but 
 the defendant must bear all the damages." 
 
 § 28. The rule in Kansas. — The Supreme Court of 
 Kansas has adopted a rule upon the question of contrib- 
 utory negligence which differs essentially from the gener- 
 al rule, and which for practical purposes is equivalent to 
 the Illinois rule of comparative negligence. The Kansas 
 rule was first announced by Valentine, J., in the early 
 case of the Union Pacific R. R. Co. v. Rollins.* In the 
 opinion in this case there is an elaborate consideration 
 of the whole question, and the result reached is that it 
 is not necessary in order to enable a plaintiff to re- 
 cover, even for injuries to his property, tH'at he be him- 
 self entirely free from negligence ; that if his negli- 
 gence is slight, or the remote cause of his injuiy, while 
 
 > Illinois, &c., R. R. Co. v. Hether- * Illinois, &c., R. R. Co. v. Hether- 
 ington, 83 111. 510; Earlville v. Car- ington, 83 111. 510. 
 ter, 6 Bradw. 421. » Thomp. on Neg., 11 71. 
 
 * 5 Kan. 167. 
 
§ 28.] COMPARATIVE NEGLIGENCE. 9 1 
 
 that of the defendant is gross, or the proximate cause, 
 the plaintiff may have his action ; that whether or not 
 there has been negligence, in a given case, and its na- 
 ture and degree if found, are questions of fact for the 
 jury ; but that to determine what degree of care and 
 diligence on the one hand, and of negligence on the 
 other, will entitle the plaintiff to a verdict, is a question 
 of law for the court. In the later cases the rule in 
 Union Pacific R. R. Co. v. Rollins, as above prevails.^ 
 
 The doctrine is formulated in such a way in several 
 of the cases cited as to suggest the conclusion that 
 " slight negligence," as used in what we may call the 
 Kansas rule, is synonymous with negligence which is 
 but a remote cause, and that "gross negligence " means 
 hardly more than negligence which is a proximate 
 cause. In the leading case it is said: "An act that 
 may be grossly negligent if it proximately contributes 
 to the injury, may be reasonably careful if it only re- 
 motely contributes thereto."^ And in a later case we 
 find the following gloss upon this statement of the law : 
 " If the jury believe from the evidence that the plaintiff's 
 negligence contributed to the injury complained of," [by 
 which must have been meant that if the plaintiff's negli- 
 gence appeared to them to have been a proximate cause 
 of the injury,] " he cannot recover. But if such negli- 
 gence was only slight, or the remote cause of the injury, 
 he may still recover, notwithstanding such slight negli- 
 gence or remote cause." * vSuch statements as this, it has 
 been attempted in the preceding section to show, involve 
 
 * Caulkins v. Matthews, 5 Kan. Kan. 347 ; Mason v. Missouri, &c., 
 
 191 ; Sawyer v. Sauer, 10 Id. 466 ; Pa- R. R. Co., 27 Id. 83 ; S. C. 41 Am. Rep. 
 
 .cific, &c., R. R. Co. V. Houts, 12 Id. 405; Kansas. &c., R. R. Co. v. Pea- 
 
 328; Kansas Pacific R. R. Co. v. vey, 29 Kan. 169. 
 
 Pointer, 14 Id. 37 ; Kansas, &c., R. * Union Pacific R. R. Co. v. Rol- 
 
 R. Co. V. Fitzsimmons, 18 Id. 34; s. lins, at page 182. 
 
 C. 32 Id. 686 ; 31 Am. Rep. 203 ; Cen- ' Sawyer v. Sauer, 10 Kan. 466. 
 tral, &c., R. R. Co. v. Henigh, 23 
 
92 COMPARATIVE NEGLIGENCE. [§ 29. 
 
 a confusion of ideas. There is a mistaking of causation 
 for negligence. In one of the later cases ^ it is denied 
 that the rule of comparative negligence obtains in this 
 State. But it is submitted, after a somewhat extended 
 reading of the Kansas decisions, that, the distinction, if 
 any there be, between the rule as declared in Illinois and 
 the rule taught by these cases, is exceedingly minute, and 
 one which, in practice, it will be found at once impracti- 
 cable and impossible to bring out. 
 
 § 29. The rule in Georgia. — The Georgia rule upon 
 this subject differs, on the one hand, from the general rule 
 of contributory negligence, and on the other hand from 
 the exceptional rule of comparative negligence. Under 
 the general rule, the negligence of the plaintiff, if con- 
 tributory in the juridical sense, is a defense. Under the 
 exceptional rule, the slight negligence of the plaintiff, 
 though contributory, is not a defense when the negligence 
 of the defendant is gross, and under the rule as declared 
 by the Supreme Court of Georgia, the slight negligence 
 of the plaintiff, though contributory, is not a defense when 
 the negligence of the defendant is gross, but it goes in 
 mitigation of damages. Both Dr. Wharton ^ and the Su- 
 preme Court of Iowa * state that the rule of comparative 
 negligence obtains in Georgia ; but perhaps this rule is 
 more correctly described as a rule in mitigation of dam- 
 ages than as a rule of comparative negligence. Although 
 the rule implies a comparison of the negligence of one 
 party with the negligence of the other, in oi-der to fix the 
 ultimate liability, yet this comparison is not the most 
 characteristic feature of the rule. In addition to the com- 
 parison, and as the distinguishing element in the Georgia 
 rule, the negligence of the plaintiff, when not so great as 
 
 ' Kansas Pacific R. R. Co. v. Pea- » O'Keefe v. Chicago, &c., R. R. 
 vey, 29 Kan. 170. Co., 32 Iowa, 467. 
 
 ^ Wharton on Neg., § 334. 
 
§ 29.] COMPARATIVE NEGLIGENCE. 93 
 
 to bar a recovery under an application of the general 
 rule, is looked to in mitigation of damages. 
 
 The rule in question may be said to have had its in- 
 ception in the case of Macon, &c., R. R. Co. v. Davis.^ 
 This is the first important case in the Georgia reports in 
 which the general question of the effect of contributory 
 negligence is considered. It proceeds upon the theory 
 that the rule of contributory negligence as laid down in 
 the English case of Butterfield v. Forrester," that if the 
 injury results in whole or in part from the misconduct of 
 the plaintiff, he cannot recover, had been so modified by 
 later decisions, especially, by the doctrine in Davies v. 
 Mann,* as to be equivalent to a rule that, in cases where 
 the negligence of both parties concurred to occasion the 
 mischief, the plaintiff may nevertheless recover if the de- 
 fendant, by the exercise of ordinary care under the cir- 
 cumstances, could have avoided the infliction of the in- 
 jury. This pernicious and pestiferous doctrine, which is 
 the same thing as a rule that when two are to blame, one 
 shall be held responsible and the other discharged and ex- 
 onerated, seems to have imposed upon the court in 
 rather a peculiar way. When the case under considera- 
 tion* was first decided, it was decided right, under a true 
 application of the general rule of law in point* At the 
 rehearing the court attempts to iapply the supposed mod- 
 ification of that rule by the later case of Davies v. Mann, 
 and says : " We approve of this modification of the 
 principle, and think it ought to be left to the jury to say 
 whether, notwithstanding the imprudence of the plaint- 
 iff's servant, the defendants could not, in the exercise of 
 reasonable diligence, have prevented the collision." * But 
 
 1^ 27 Ga. 113; S. C. 18 Id. 679; 13 " Macon, &c., R. R. Co. v. Davis, 
 Id. 68. supra. 
 
 * II East, 60. ' Cf. Brannon v. May, 17 Ga. 136. 
 
 =• 10 Mee. & W. 546. ' The Davis Case, 18 Ga., at page 
 
 686. 
 
94 COMPARATIVE NEGLIGENCE. [§ 29. 
 
 when the case came up again, upon a second rehearing, 
 the court seems to have begun to lose faith in the Davies 
 V. Mann " modification," which at the first rehearing they 
 had expounded and approved, and, after beating about for 
 some middle ground, reaches the conplusion, upon which 
 the case finally rested, that " he who is guilty of the 
 greater negligence, or wrong, must be considered the 
 original aggressor, and accountable accordingly." ^ Start- 
 ing out with the rule in Butterfield v. Forrester,^ which 
 -declares the received rule of contributory negligence, the 
 court attempts to apply, in connection therewith, the rule 
 in Davies v. Mann,* and the result is the rule of compar- 
 ative negligence, in so extreme a form, that it has been 
 found necessary, even where that rule obtains, to reduce 
 it to less objectionable shape. 
 
 While the case of Macon, &c., R. R. Co. v. Davis* 
 was in process of decision, two other cases were decided 
 which should be noticed here. In another case growing 
 out of the same accident ® which had occasioned the case 
 of Macon, &c., R R. Co. v. Davis, the court, by Lump- 
 kin, J., lays down with much clearness the rule that con- 
 tributory negligence is a defense, fortifying that position 
 by the citation of many authorities, both English and 
 American, and following the earlier case of Brannon v. 
 May,* in which the general rule is correctly declared. 
 Confronted with the later case of Macon, &c., R. R. Co. 
 V. Davis, which had just been decided on the rehearing,'^ 
 in which the doctrine in Davies v. Mann is approved and 
 declared, the learned judge attempts very ingeniously to 
 reconcile the two cases. He says : "Is there any conflict 
 between Brannon v. May and the Macon, &c., R. R. Co. 
 
 1 The Davis Case, 27 Ga., at page = Macon, &c., R. R. Co. v. Winn, 
 119- igGa. 440; s, C. 26 Id. 250. 
 
 2 II East, 60. 6 17 Ga. 136. 
 ' 10 Mee. & W. 546. ' 18 Ga. 679. 
 * Supra. 
 
§ 29.] COMPARATIVE NEGLIGENCE. 95 
 
 V. Davis ? We do not perceive it ; the two may, and do, 
 well stand together ; " and then enters into an extended 
 argument to establish his proposition, standing firmly to 
 the ground taken, but endeavoring to reconcile it with 
 the modification. Upon a rehearing in this case, Ben- 
 ning, J., in a dissenting opinion, argues at length that the 
 damages should suffer a reduction in proportion to the 
 fault of the plaintiff.^ Then followed, in point of time, 
 the final deqision in the case of Macon, &c., R. R. Co. v. 
 Davis,^ in which the doctrine of comparative negligence 
 is broadly announced, and, in the same year, the case 
 of Flanders v. Meath,* in which it is held that when both 
 parties are in fault the plaintiff may have bis action, but 
 that, inasmuch as the defendant was only slightly the 
 most in fault, the damages awarded should be small. 
 This is comparative negligence and mitigation of dam- 
 ages at once. But before this, and before the announce- 
 ment of the final rule in Macon, &c., R. R. Co. v. Davis,* 
 in the case of Augusta, &c., R. R. Co. v. McElmurry,^ 
 when in the court below the counsel for the defendant 
 requested the court to charge the jury that the plaintiff's 
 own freedom from contributory negligence was an 
 essential element in his case, according to the rule in 
 Brannon v. May,* and the court refused, but charged 
 " that the defendants are bound for reasonable care and 
 diligence in running their cars, and a departure from 
 the rules of running is a want of such care and dili- 
 gence ; that when the plaintiff is chiefly in fault he 
 cannot maintain an action ; where the parties are equal- 
 ly in fault he cannot maintain an action ; but that, 
 though the plaintiff be somewhat in fault, yet, if the 
 defendants have been guilty of gross negligence, he may 
 
 > The Winn Case, 26 Ga. 250. * 27 Ga. 113. 
 
 2 27 Ga. 113. »24Ga. 75. 
 
 3 27 Ga. 358. « 17 Ga. 136. 
 
96 COMPARATIVE NEGLIGENCE. [§ 2g. 
 
 maintain an action." The court above held the refusal 
 to give the instruction asked, not error, and that the 
 instruction given was a correct enunciation of the 
 established rule in that State, which was " that although . 
 the plaintiff be somewhat in fault, yet, if the defendant 
 be grossly negligent, and thereby occasioned, or did not 
 prevent, the mischief, the action may be maintained." 
 This is comparative negligence pure and simple without 
 the modification as to mitigation of damages, and it is 
 substantially followed in a comparatively recent case.^ 
 We find, however, in Atlanta, &c., R. R. Co. v. Ayers,** 
 the rule thus laid down : " If it appears thatboth parties 
 were guilty of negligence, and that the person injured 
 could not by ordinary care and diligence have avoided 
 the consequences to himself of the negligence of the 
 company, or its agents, he may recover, but the jury shall 
 lessen the damages in proportion to the negligence and 
 want of ordinary care of the injured person." 
 
 Taking the decisions in point as a whole, from first 
 to last, it may be said that the rule in Georgia is not 
 settled. There is a tendency toward the rule of compar- 
 ative negligence,^ and it is certainly usual, in cases where 
 the plaintiff's negligence is not regarded sufficient to 
 prevent entirely a recovery, to direct the jury to look to 
 it in mitigation of damages as has already appeared. 
 But even this is not a universal rule. It is the usage 
 rather than the rule. The latest cases take now one view 
 and now the other,* and we must hear further from the 
 Supreme Court before there can be formulated anything 
 exactly and explicitly as the Georgia rule. 
 
 ' Rome V. Dodd, 58 Ga. 238. Co. v. Wyly, 65 Id. 120; Thompson 
 
 « 53 Ga. 12. V. Central, &c., R. R. Co., 54 Id. 
 
 ^e.g. Augusta, &c., R. R. Co. v. 509; Campbell 7/. Atlanta, &c.,R. R. 
 
 McElmurry, 24 Ga. 75, where this Co., 53 Id. 488; s. c. 56 Id. 586; 
 
 rule is explicitly set forth. Hendricks v. Western, &c., R. R. Co., 
 
 * Central, &c., R. R. Co. v. Glea- 52 Id. 467; Macon, &c., R. R. Co. v. 
 
 son, 69 Ga. 200 ; Atlanta, &c., R. R. Johnson, 38 Id. 408. 
 
§ 30-J COMPARATIVE NEGLIGENCE. 97 
 
 § 30. The rule in Tennessee. — In Tennessee the con- 
 tributory negligence of a plaintiff is not a defense pre- 
 cisely to the same extent that it is in the other States of 
 the Union in general. As, between the doctrine of 
 comparative negligence and the generally accepted rules 
 of contributory negligence, the Supreme Court of Ten- 
 nessee has not taken, it is believed, a doubtful position. 
 Comparative negligence is not the rule of that court, 
 and, to state, it broadly, the court maintains, in general, 
 the rule that whenr a plaintiff's own negligence is the 
 proximate cause of the injury of which he complains he 
 cannot recover.^ But, whenever the negligence of the 
 plaintiff is slight, or merely the absence of a superior 
 degree of care or diligence, such negligence being not 
 sufficient to bar the action, may be looked to in mitiga- 
 tion of damages.^ In this respect the rule in Tennessee 
 is the same as in Georgia. In both these States the 
 negligence of the plaintiff when slight is not a defense. 
 In Georgia this is a modification of the rule of compar- 
 ative negligence, but in Tennessee it is rather a qualifica- 
 tion of the general rule as to contributory negligence. 
 Whirley v. Whiteman,^ decided in 1858, is regarded as 
 the leading case in point. It has been sometimes mis- 
 understood to announce the doctrine of comparative 
 negligence. But a careful reading of the opinion will 
 show that such an impression is a pure misunderstanding. 
 The court says : " When a party brings an injury upon 
 himself, or contributes to it, the mere want of a superior 
 degree of care or diligence cannot be set up as a bar to 
 
 > Jackson v. Nashville, &c., R. R. R. R. Co. v. Walker, 11 Heisk. 
 
 Co., 13 Lea, 491; s. C. 49 Am. Rep. 383; Hill v. Nashville, &c., R. R. 
 
 663; Nashville, &c., R. R. Co. v. Co., 9 Heisk. 823; Nashville, &c., R. 
 
 Wheless, lo Lea, 741 ; SO. 43 Am. R. Co. v. Carroll, 6 Heisk. 347; 
 
 Rep. 317; Whirley v. Whiteman, i Smith v. Nashville, &c., R. R. Co., 
 
 Head, 610. 6 Id. 174. 
 
 » Dush V. Fitzhugh, 2 Lea, 307 ; » i Head, 610. 
 
98 COMPARATIVE NEGLIGENCE. [§ 3O. 
 
 the plaintiff's claim for redress ; and, although the plaint- 
 iff may himself have been guilty of negligence, yet, unless 
 he might by the exercise of ordinary care have avoided 
 the consequence of the defendant's negligence, he will be 
 entitled to recover." This is but to say that a mere want 
 of great care on the part of the plaintiff is not sufficient 
 to constitute contributory negligence, or that the measure 
 of the plaintiff's diligence is the standard of ordinary 
 care, which, as we have seen,^ is the general rule. But 
 in subsequent cases it has been held- that the failure to 
 exercise extraordinary care on the part of the plaintiff, 
 while not a defense to the action, may be looked to in 
 mitigation of damages,* and there is a noticeable tendency 
 to extend this rule so as to include cases where the 
 plaintiff's negligence is something more than a want of 
 slight care — especially where the negligence of plaintiff 
 and defendant is highly disproportionate.^ 
 
 Much may be said in favor of the rule which counts 
 the plaintiff's negligence in mitigation of the damages, 
 in those cases which frequently arise, wherein, on the 
 one hand, a real injury has been suffered by the plaintiff, 
 by reason of the culpable negligence of the defendant, 
 and yet where, on the other hand, the plaintiff's conduct 
 was such as, to some extent, to contribute to the injury, 
 but yet in so small a degree that, to impose upon him 
 the entire loss, seems not to take a just account of the 
 defendant's negligence. In those cases which may be 
 denominated "hard cases" the Georgia and Tennessee 
 rule in mitigation of damages, without necessarily sac- 
 rificing the principle upon which the law as to contrib- 
 utory negligence rests, is a rule against which, in respect 
 of justice and humanity, nothing can be said. Where 
 
 ^ § 9. supra. and the later cases generally cited 
 
 2 See, particularly, Nashville, &c., above. 
 R. R. Co. V. Carroll, 6 Heisk. 347, a Dush v. Fitzhugh, 2 Lea, 307. 
 
§ 3''] COMPARATIVE NEGLIGENCE. 99 
 
 the severity of the general rule might refuse the plaintiff 
 any remedy whatever, as the sheer injustice of the rule 
 as laid down in Davies v. Mann/ would impose the whole 
 liability upon the defendant, it is quite possible to con- 
 ceive a case where the application of the rule which 
 mitigates the damages in proportion to the plaintiff's 
 misconduct, but does not decline to impose them at all, 
 would work substantial justice between the parties. 
 
 § 31. The rule in Kentucky. — A consideration of 
 the rule upon the subject in Kentucky is included in this 
 chapter, not because the rule of comparative negligence 
 obtains in this State to any extent, or in any sense, nor 
 because the Court of Appeals at Frankfort is unsound 
 to any degree upon the general doctrines of the law of 
 contributory negligence, but because citations are occa- 
 sionally made from the Kentucky reports by text-writers, 
 and by the courts of other States, to this effect, and in 
 such a way, and with such a gloss as to give currency to 
 the impression that the Kentucky decisions are obnoxious 
 to this criticism. So far is this from being the truth that 
 it may safely be asserted that nowhere is the generally 
 accepted doctrine upon this subject more positively de- 
 clared, or more firmly and consistently adhered to than 
 in Kentucky. " When the defense is contributory neg- 
 ligence," says the Court of Appeals in the comparatively 
 recent case of the Kentucky Central Railroad Co. v. 
 Thomas' administrators,** "the proper question for the 
 jury is, whether the damage was occasioned entirely by 
 the negligence or improper conduct of the defendant, or 
 whether the plaintiff himself so far contributed to the 
 misfortune by his own negligence or want of ordinary or 
 common care and caution that, but for such negligence 
 
 1 10 Mee. & W. 546. * 79 Ky. 160; s. c. 42 Am. Rep. 
 
 208. 
 
lOO 
 
 COMPARATIVE NEGLIGENCE. 
 
 [§3i. 
 
 or want of ordinary care and caution on his part, the mis- 
 fortune would not have occurred. In the first case, the 
 plaintiff would be entitled to recover; in the latter, he 
 would not." This is the doctrine in both the earlier and 
 the latter cases.^ 
 
 As supplementary to the common law rules in point, 
 or, perhaps, rather as declarative of a common law rule, 
 there is a statute in Kentucky * which provides for the re- 
 covery of punitive damages in certain cases, where death 
 results from the " wilful negligence " of the defendant. In 
 cases that have arisen under this statute, it has been held, 
 conformably to the common law rule, that the contribu- 
 tory negligence of the plaintiff, in such a case, is not a 
 defense to the action,* and some of these cases, in which 
 the court has been perhaps a little inexact in expressing 
 the rule, have been cited as authority for the rule of com- 
 parative negligence.* 
 
 ^ Louisville, &c., R. R. Co. v. 
 Filbem's Admx., 6 Bush, 574 ; City 
 of Covington v. Bryant, 7 Bush. 248 ; 
 Digby V. Kenton Iron Works, 8 Bush. 
 166; Jacobs Admr. v. Louisville, &c., 
 R. R. Co., 10 Bush, 263; Sullivan's 
 Admr. v. Louisville Bridge Co., 9 
 Bush. 81 ; Padacah, &c., R. R. Co. 
 V. Hoehl, 12 Id. 41; Louisville, &c., 
 R. R. Co. V. Goetz's Admx., 79 Ky. 
 442; S. C. 42 Am. Rep. 227; Louis- 
 ville, &c., R. R. Co. V. Commonwealth, 
 80 Id. 143 ; S. C. 44 Am. Rep. 468 ; 
 Jones' Admr. v. Louisville, &c., R. 
 R. Co., Super. Ct. of Ky., March 28, 
 1885. (To be reported.) 
 
 2 2 Stanton's Ky. Stat., 510 § 3, 
 Genl. Stat, of Ky. Chap. 57 § 3. 
 Enacted March 10, 1854. 
 
 s But it is said that " if the injury 
 received by the deceased was caused 
 wholly by his own negligence it neces- 
 sarily results that his life was not lost 
 by the wilful neglect of the defend- 
 ant, and the action cannot be main- 
 tained." Jones' Admr. v. Louisville, 
 &c., R. R. Co., Super. Ct. of Ky., 
 March 28, 1885. (To be reported.) 
 
 * Ex. gr. Dr. Wharton cites Louis- 
 ville. &c., R. R. Co. V. rSickings], 5 
 Bush. I ; Id. v. Mahoney, 7 Bush. 
 255 (i.e. 235); (Wharton on Neg., § 
 335, note), and Mr. Freeman, in his 
 learned annotation of the case of 
 Casey v. Berkshire R. R. Co., 48 Am. 
 Dec. 6i6, cites at page 637, the case 
 of Jacobs V. Louisville, &;c., R. R. 
 Co., 10 Bush. 263, in connection with 
 some cases from the Illinois reports, 
 as an authority for the proposition, 
 '■ Except where the effect of slight con- 
 tributory negligence is held to be over- 
 come by evidence of the defendant's 
 gross or wanton negligence, as is the 
 rule in some States,'" which should 
 seem to be equivalent to the statement 
 that the rules in Illinois and Kentucky 
 are, in this respect the same. Judge 
 Thompson also discusses an "inno- 
 vation '' that he discovers in the- Ken- 
 tucky reported cases, under the title 
 of comparative negligence (Thomp. 
 on Neg., 1022 § 26) and, while per- 
 haps he makes the impression that 
 this rule prevails in Kentucky, he does 
 not say so. In another connection, 
 
§ 3I-] COMPARATIVE NEGLIGENCE, lOI 
 
 This misapprehension seems to have arisen principally 
 from some expressions of Chief Justice Robertson in his 
 opinion in the case of the Louisville, &c., R. R. Co. v. 
 Collins.^ This was an action brought by a common 
 laborer for injuries sustained by reason of the negligence 
 of the defendant's engineer, whose orders it was the plain- 
 tiff's duty to obey. It was not an action under the stat- 
 ute of 1854, hitherto referred to, since the injuries did 
 not result in death.* 
 
 In delivering the opinion of the court our great Chief 
 Justice said : " But had the appellee [plaintiflF ] been guilty 
 of negligence, nevertheless, the injury might have been 
 avoided by the proper care of the engineer, and is, there- 
 fore attributable to his gross negligence. In such a case 
 both principle and preponderating authority seem to de- 
 cide that such a remediable fault of the person injured 
 should not exonerate the wrong-doers from legal liability 
 for the damage which, without gross negligence, he could 
 have prevented."* And, in a later case, in reaffirming 
 this doctrine, the same judge speaks of "the extraordi- 
 nary or gross negligence" passed upon in the Collins 
 case, and then proceeds to a definition of it in these 
 terms-. "Gross neglect is either an intentional wrong, or 
 such a reckless disregard of security and right as to im- 
 ply bad faith, and, therefore, squints at fraud, and is tan- 
 tamount to the magna culpa of the civil law, which in 
 some respects is ^wajz-criminal." * Inasmuch as this is what 
 his honor meant by gross negligence, the opinion in the 
 
 however, he gives the Court of Ap- the Supreme Court of the United 
 
 peals a " character " as to the anom- States in Chicago, Milwaukee & St. 
 
 alous doctrine. (Thomp. on Neg., Paul R. R. Co. v. Ross, 112.U. S. 
 
 1003.) 377. See the chapter on Master and 
 
 ' 2 Duv. 114. Servant, infra. 
 
 " Upon the question " Who is a fel- ' Louisville, &c., R. R. Co. v. Col- 
 low-servant ? " this case laid down lins, 3 Duv. 114, at page 119. 
 the eminently just and reasonable rule * Louisville, &c., R. R. Co. v. 
 which has recently been adopted by Robinson, 4 Bush. 507, 509. 
 
I02 COMPARATIVE NEGLIGENCE. [§ S^- 
 
 case of Collins gives no shadow of just ground for the 
 impression that that case teaches the doctrine of com- 
 parative negligence. That case, therefore, upon this 
 point, teaches that wilful negligence is not to be de- 
 fended by a plea of slight negligence, which is called in 
 the opinion "the remediable fault of the person injured." 
 and this is but the unquestioned rule of the common 
 law.^ 
 
 In order that the position of the court may not be 
 misunderstood, immediately following the definition of' 
 gross negligence just quoted, the learned judge says: 
 " But if the party complaining of hurt by his own negli- 
 gence contributed to it, he cannot recover damages from 
 the company unless its co-operating agent charged with 
 gross " [z.e. according to his definition, wilful and inten- 
 tional] " neglect could have avoided the impending dam- 
 age, by the observance of ordinary diligence, notwith- 
 standing the neglect of the complaining party." * It may 
 be conceded that this is rather a clumsy and confused 
 statement of law, and that the definition proposed for 
 gross negligence is misleading. What is termed gross 
 negligence the better authorities now call wilful negligence, 
 or wilful wrong-doing. But in the two opinions, the one 
 explaining the other, there is no uncertain sound upon 
 the point in dispute. There is no suggestion of a rule 
 of comparative negligence, and it is submitted that a read- 
 ing of the Kentucky decisions demonstrates that the Court 
 of Appeals of this State has placed itself squarely in line 
 with other common law courts in an orthodox attitude 
 upon the matter of contributory negligence.* 
 
 ' C/. Louisville, &c., Canal Co. v. » See an essay by Helm Bruce, 
 
 Murphy's Admr. 9 Bush. 521, and Esq., of the Louisville Bar, in the 
 
 the note. Kentucky Law Journal for April, 
 
 2 Louisville, &c., R. R. Co. v. Rob- 1882, upon " The Kentucky doctrine 
 
 inson, 4 Bush. 509. See, also, Louis- of contributory negligence," in which 
 
 ville, &c., R. R. Co. v. Sickings, 5 the whole subject is fully and leam- 
 
 Bush. I . edly considered. 
 
CHAPTER IV. 
 
 THE IMPUTED CONTRIBUTORY NEGLIGENCE OF THIRD 
 
 PERSONS. 
 
 The rule stated. 
 
 The conftibutory negligence of 
 the plaintiff's agent must be im- 
 puted to the plaintiff. 
 
 The rule in Thorogood v. Bryan. 
 
 Thorogood v. Bryan in the United. 
 States. 
 
 The American rule. 
 
 Privity in negligence between a 
 public carrier and a. shipper of 
 goods. 
 
 38. In the case of persons non sui juris. 
 
 39. Who are to be held non sui juris. 
 
 40. The New York rule. Hartfield v. 
 
 Roper. 
 
 ,32. 
 
 33. 
 
 34. 
 35. 
 
 36. 
 37. 
 
 ) 41. The rule modified in various juris- 
 dictions. 
 
 42. A criticism of Hartfield v. Roper. 
 
 43. The rule in Hartfield v. Roper, de- 
 
 nied. 
 
 44. When the action is for the parent's 
 
 benefit. 
 
 45. The rule modified by reason of 
 
 the plaintiff's poverty or destitu- 
 tion. 
 
 46. Ordinary care in a child. 
 
 47. Children as trespassers. 
 
 48. What acts and omissions on the 
 
 part of parents have been held 
 contributory negligence in these 
 actions. 
 
 § 32. The rule stated. — Contributory negligence in 
 its juridical sense, is usually the personal default of the 
 plaintiff himself. The general rule is that when the 
 plaintiff's own want of ordinary care is a proximate 
 ■cause of the injury he sustains, he cannot recover dam- 
 ages from another therefor. But, under certain excep- 
 tional conditions, which we are to consider in this chap- 
 ter, a plaintiff may be legally chargeable with the negli- 
 gence of some third person, which is imputed to him as 
 Ihough it were his own. In this particular the law of 
 negligence is analogous to the general principles of the 
 law as to liability, under which one is primarily re- 
 sponsible for his own acts, and only secondarily for the 
 acts of others, as e. g. those of his servant or agent. The 
 rule upon this branch of our subject is that the contribu- 
 tory negligence of third persons constitutes a valid de- 
 fense to the plaintiffs action only when that negligence 
 
104 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 32. 
 
 is legally imputable to the plaintiflF. There must, in 
 order to create this imputability, be some connection, 
 which the law recognizes between the plaintiff and the 
 third person, from which the legal responsibility may 
 arise. The negligence of the third person and its legal 
 imputability must concur. It is clear that there is no 
 justification for the negligent misconduct of the defend- 
 ant in that some third person, a stranger, was also in the 
 wrong. When the defendant pleads the negligence of a 
 party other than the plaintiff in bar of the action, it must 
 appear, not only that such third person was in fault, but 
 that the plaintiff ought to be charged with that fault. 
 In a case in New York, for example, the defendant's 
 street car, on which the plaintiffs intestate was a passen- 
 ger, having become over crowded, and the deceased hav- 
 ing been thrown off by another passenger rushing by. 
 him in haste in leaving the car, it was held that the 
 wrongful act of such passenger did not relieve the de- 
 fendants from the consequences of their wrongful act in 
 crowding their car, and thereby compelling the deceased 
 to stand upon the platform ; ^ or, in other words, that 
 the negligent act of the passenger who pushed his way 
 recklessly through the crowd, upon the platform, in leav- 
 ing the car, ought not to be imputed to one who was 
 thereby pushed off and injured. So, in an action against 
 a railway company for damages resulting from the care- 
 lessness of its servants in running over and cutting fire 
 hose, and thus letting the plaintiff's buildings burn, it 
 was held insufficient as a defense, that the firemen were 
 also negligent in stretching their hose across the track 
 and failing to warn an approaching train, the court say- 
 ing: "The grounds upon which the defendants are 
 
 1 Sheridan v. Brooklyn, &c,. R. R. Co., 36 N. Y. 39. Compare Cannon 
 V. The Railway, 6 Irish L. R. 199. 
 
§ 32.] OF THIRD PERSONS. IO5 
 
 charged in such a case is that the wrong was done by an 
 act in the doing of which it was an actor. The fact that 
 others co-operated, or concurred with it in effecting the 
 wrong does not affect the question or measure of its 
 liability."^ And, in an action against a gas company for in- 
 juries arising from an explosion of gas, upon the ground 
 that the company had supplied a defective gas pipe, it 
 was held no defense that a gas-fitter's servant had negli- 
 gently ignited the gas.* In each of these cases there was 
 no sufficient legal connection between the plaintiff and 
 the person whose negligence or wrong-doing was sought 
 to be interposed as a defense, and in each there was, 
 accordingly, no legal imputability. This principle is, in 
 some sort, a branch of the rule which refuses to enforce 
 a contribution among tort feasors. Not only, it may be 
 said, does the common law decline to enforce contribu- 
 tion when judgment has gone against one for the wrong- 
 doing of several, but it refuses to allow one wrong-doer 
 to set up the concurrent wrong-doing of another as a de- 
 fense in the original action. The defendant will not be 
 heard to say that, though guilty himself of negligence, 
 the injury would not have been inflicted, if some third 
 person, a stranger to the plaintiff 's case, had not also 
 been negligent. This is familiar learning. 
 
 Numerous cases illustrate and enforce the rule, that 
 the contributory negligence of third persons, who are 
 mere strangers, or mere joint tort feasors, is not a de- 
 fense in an action for damages resulting from negligence 
 when the actionable negligence of the defendant is estab- 
 lished.® The rule which imputes to a plaintiff in any 
 
 » Hunt, J., Id. Mott V. Hudson » Cayzer v. Taylor, 10 Gray, 274; 
 
 River R. R. Co.; 8 Bosw. 345; S. C. I Eaton v. Boston, &c., R. R. Co., 11 
 
 Robertson. 585. Allen, 500; Churchill v. Holt, 127 
 
 2 Burrows v. March Gas and Coke Mass. 165; S. C. 34 Am. Rep. 355; S. 
 
 Co.. L. R. 5 Exch. 67; S. C. L. R. 7 C. 131 Mass. 67; S.C.41 Am. Rep. 191 
 
 Id. 96. Brehm v. Greatwestern Ry. Co., 34 
 
J06 IMPUTED CONTRIBUTORY NEGLIGENCE [§ :i^. 
 
 ■case the negligence of another, savoring as it does, to 
 some extent, of harshness, should not be applied except 
 in a plain case, and, says Chief Justice Church, of New 
 York : " should not be extended to new cases where the 
 reason for its adoption is not apparent." ^ 
 
 * 
 
 § 33. T/ie contributory negligence of the plaintiff'' s 
 agent must be imputed to the plaintiff. — Inasmuch as 
 the contributory negligence of third persons is, under 
 some circumstances, but not generally, to be imputed to 
 a plaintiff who seeks to recover damages for an injury 
 sustained through the negligence of the defendant, it is 
 material to determine what contributory negligence of 
 third persons will be so imputed to him as to prevent 
 his recovery. We remark at the outset that, in order 
 to this imputability, there must be a pro tanto identifi- 
 cation of the third person with the plaintiff, and that 
 such an identity will be found to exist, or be in dis- 
 pute, in two classes of cases — the first, where the third 
 person was guilty of the contributory negligence as the 
 agent of the plaintiff, and the second, where the cause 
 of action is derived from the third person. The rule 
 as to the first class of cases may be expressed as fol- 
 lows : The contributory negligence of a third person 
 who is guilty thereof as the agent of the plaintiff must 
 be imputed to the plaintiff. An agent, in the contem 
 plation of this rule, is a person whose negligence, as 
 understood in the rule, would be treated as the princi- 
 
 Barb. 256; Barrett v. Third Ave, R. R. St. 86 ; S. C. 38 Am. Rep. 558; Town 
 
 Co;, 45 N. Y. 628; Ring v. City of Co- of Albion v. Hetrick, 90 Ind. 545 ; S. 
 
 hoes, 77 Id. 83; S.C. 33 Am. Rep. 574; c. 46 Am. Rep. 230; Sullivan v. 
 
 Masterton v. New York, &c., R. R. Phila., &c., R. R. Co., 30 Penn. St. 
 
 Co., 84 N. Y. 247 ; s. C. 38 Am. Rep. 234; Byrne v. Wilson, 15 Ir. Rep. C. 
 
 510; Cuddy w. Horn 46 Mich. 596; S. L. 332; Wettor v. Dunk, 4 Fost. v. 
 
 C. 41 Am. Rep. 178; Beauchamp v. Fin. 298; Harrison w. Great North- 
 
 Saginaw Mining Co., 50 Mich. 163; ern Ry. Co., 3 Hurl. & C. 231. 
 
 S. c. 45 Am. Rep. 30 ; Baltimore, ' Robinson v. New York, &c., R. 
 
 &c., R. R. Co. V. Reaney, 42 Md. R. Co., 66 N. Y. 13; s. C. 23 Am. 
 
 117; Transfer Co. v. Kelly, 36 Ohio Rep. i. 
 
§ 33-J OF THIRD PERSONS. I07 
 
 pal's in an action for such negligence brought by a third 
 person against the principal. Whenever the contribu- 
 tory negligence of the third person is of such a charac- 
 ter, and the third person is so connected with the 
 plaintiff" that an action might be maintained against the 
 plaintiff", for damages for the consequences of such neg- 
 ligence, then, when the plaintiff" himself brings the ac- 
 tion, that negligence is, in contemplation of law, the 
 plaintiff" 's negligence, and it is justly imputed to him. 
 Qui facit per alium facit per se, and whenever the 
 agency is undisputed and full, the rule is manifestly cor- 
 rect.^ Where, for example, a servant, having in charge 
 a valuable team, stopped on the highway, and, leaving 
 the team unhitched and unattended, engaged in a boist- 
 erous altercation with one R., which frightened the 
 team so that it ran away, and the horses were injured, 
 it was held, in an action by the owner of the horses to 
 recover damages from R., that the contributory negli- 
 gence of the plaintiff"'s servant, in exposing the horses 
 Upon the highway, was a defense. The court says : 
 " For such a wrong, no doubt the defendant R. would 
 be liable, unless the negligence of the plaintiff", or the 
 person whom he had placed in charge of the team, con- 
 tributed proximately to the injufy. But if the servant 
 was guilty of such negligence in the care of the team as 
 would preclude him, if he had been its owner, from main- 
 taining an action against R, this negligence must be 
 equally fatal in an action brought by this plaintiff, who 
 confided the team to his servant's care. It is true, the 
 plaintiff" was not responsible for the unlawful act of his 
 servant in accepting the challenge and fighting with R. ; 
 but for leaving the team loose and uncared for, whilst this 
 noisy aff"ray was occurring in close proximity, he was re- 
 
 Puterbaugh v. Reasor, 9 Ohio St. 484. 
 
I08 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 34. 
 
 sponsible, so far as others were concerned, if he entrusted 
 the custody of the horses to his servant, and his remedy 
 in such a case is against the servant alone ; " and furth6r, 
 the court concludes : " the same want of proper care 
 which would give the plaintiff a cause of action against 
 his servant must prevent a recovery against R." ^ It is 
 not necessary to cite the reader to authorities in support 
 of the proposition that a master or principal is responsi- 
 ble for the negligent wrong-doing of his servant or agent 
 in all cases in which the servant or agent is acting about 
 his master's or principal's business, of which the rule just 
 laid down is a necessary corollary. 
 
 § 34. The rule in Thorogood v. Bryan.-^K common 
 or private carrier is, for certain purposes, unquestionably 
 the agent of the passenger or shipper whose person or 
 goods he receives for transportation. The undertaking of 
 the carrier is to receive and transport persons or property 
 from place to place, and, in virtue of that undertaking, he 
 constitutes himself quoad hoc the agent of the person 
 who employs him.^ In cases of injury by collision or 
 other misadventure, occasioned by the negligence or mis- 
 conduct of the carrier, or his servants, concurring or co- 
 operating with the negligent wrong-doing of a third 
 party, where the passenger or shipper brings his action 
 for damages against the third party, rather than against 
 his carrier, the question is at once presented whether the 
 carrier is so far forth the agent of the plaintiff that the 
 rule set forth in the preceding section should be applied ; 
 or in other words, 'the question is, whether the contribu- 
 tory negligence of the common carrier is to be imputed 
 to the plaintiff, in such a case, as a defense to the action 
 
 ' Puterbaugh v. Reasor, 9 Ohio St. carrier. Bedel v. Lull, Cro. Jac. 224; 
 484- Simpson -u. Hand, 6 Whart. (Penn.) 
 
 2 See, as between a shipper and his 311 ; s. c. 36 Am. Dec. 231. 
 
§ 34-] OF THIRD PERSONS. IO9 
 
 against the third party. This question has been found 
 one of very considerable difficulty, and the authorities are 
 not consistent upon the point in dispute. We find two 
 distinct lines of cases, declaring antinomous doctrines, 
 which may be denominated respectively the English and 
 the American rule. 
 
 Thorogood v. Bryan ^ is the leading English case in 
 point, and it established the rule that, in these actions, the 
 negligence of the carrier, contributing to produce the 
 mischief, must be imputed to the plaintiff to bar a recov- 
 ery. This is the English rule. In the case just cited it 
 appeared that the plaintiff's intestate had been a passen- 
 ger in an omnibus, and that his death was caused by a 
 collision of the omnibus with the defendant's vehicle. 
 The court, holding that the negligence of the omnibus 
 driver prevented a recovery, says : " The negligence that 
 is relied on as an excuse is not the personal negligence of 
 the party injured, but the negligence of the driver of the 
 omnibus in which he was a passenger. But it appears to 
 me that, having trusted the party by selecting the partic- 
 ular conveyance, the plaintiff has so far identified himself 
 with the owner and her servants that if any injury results 
 from their negligence, he must be considered a party to 
 it."* Lord Tenterden, more than twenty years before, in 
 an action against the owners of a vessel for damage done 
 to goods upon another vessel, announced a similar rule," 
 and it is plain that the doctrine of privity in negligence 
 between a public carrier and a passenger or shipper is well 
 established in England, at least to the extent of prevent- 
 ing recoveries in actions of this character.* In a com- 
 
 > 8 C. B. IIS, decided in 1849. * Bridge v. Grand Junction Ry. Co., 
 
 » Thorogood v. Bryan. 8 C. B.. at 3 Mee. & W. 244; Child v. Heam, 22 
 
 page 130. W. R. 864; S. C. L. R. 9 Exch 176; 
 
 ^ Vanderplank w. Miller, I Moody Armstrongw.The Lancashire & York- 
 
 & M. 169 ; compare Arctic Fire Ins. shire Ry. Co., 23 W. R. 295; S. c. L. 
 
 Co. V. Austin, 69 N. Y. 470. R. 10 Exch. 47 ; (compare, also, Waite 
 
I lO IMPUTED CONTRIBUTORY NEGLIGENCE [§ 34. 
 
 paratively recent case ^ the rule in Thorogood v. Bryan is 
 strongly insisted upon, Bramwell, B., saying : " It must 
 not be supposed, as far as my individual opinion is of any 
 value, that I am at all dissatisfied with the decision in 
 
 Thorogood v. Bryan which, though it may 
 
 have been questioned and impeached, has never been 
 overruled, and has since been acted on." As the learned 
 Baron suggests, however, this rule has been much " ques- 
 tioned and impeached" by the English judges. Dr. 
 Lushington said that he would not be bound by it, 
 and did not approve of it.^ In the note to Ashby v. 
 White, in Smith's Leading Cases,^ the rule is sharply 
 criticised, " and this criticism," says Chief Justice Beas- 
 ley, " has on two occasions at least been referred to by 
 the English courts with marked respect.* From these 
 considerations this case does not bear the weight which a 
 deliberate decision of the Court of the King's Bench ordi- 
 narily carries with it." ® Not only has the correctness of the 
 rule * been frequently questioned in the English decisions, 
 but the reason upon which it was originally made to rest 
 has been flatly denied, and wholly abandoned. 
 
 Says Baron Pollock : " The only difficulty I have had 
 in applying it [z>. the rule in Thorogood v. Bryan] has 
 been in consequence of the use of the word ' identified ' 
 in the judgment of the court there. If the courts are to 
 
 V. Northeastern, &c., Ry. Co., 7 W. * Citing Tuff v. Warman, 2 C. B. 
 
 R. 311; EI. Bl. & El., 719, 728, in (N. S.) 750, and Waite v. North- 
 
 which case, although the action was eastern, &c., R. R. Co., El. Bl. & El. 
 
 against the contracting company, from 728. 
 
 the opinons it may be inferred that « Bennett v. New Jersey, &c., R. 
 
 the same conclusion would have been R. Co., 36 N. J. Law, 225. 
 
 reached had it been against another » Consult, on this point, Rigby v. 
 
 company.) Hewett, 5 Exch. 240; Greenland v. 
 
 1 Armstrong 17. Lancashire, &c., Ry. Chaplin, 5 Id. 243; Quarman v. Bur- 
 Co., L. R. 10 Exch. 47, supra. nett, 6 Mee. & W. 499; Reedie v. 
 
 2 The Milan, Lush, Adm. 388. London, &c.. Ry. Co, 4 Exch. 244; 
 ' I Smith's L. C. (6th Eng. ed.), Dayrell v. Tyrer, 28 L. J. (6. B.), 52; 
 
 266, but see the S. C. in the new 8th Tuff v. Warman, 2 C. B. (N. S.), 740; 
 American edition of 1885, vol. i, page Waite v. Northeastern, &c., Ry. Co.., 
 505- El. Bl. & El. 719. 
 
§35-] OF THIRD PERSONS. Ill 
 
 be taken as meaning by that word, that the plaintiff by 
 his own proper conduct, or by the selection of the omni- 
 bus in which he was riding, so acted as to constitute the 
 driver his agent, the proportion would, I think, be an un- 
 sustainable one. But I do not understand the word to 
 be used in that sense, I take the court to mean by it that^ 
 under the circumstances of the case, the plaintiff", for the 
 purpose of the action, must be taken to be in the same 
 position as the owner of the omnibus, or his driver. The 
 case of Waite v. Northeastern, &c., Ry. Co., EL, Bl. & 
 El. 719, is an illustration of this, where the child, as far 
 as regards contributory negligence, was ' identified ' with 
 its grandmother, in whose charge it was, although it could 
 not be said that the child exercised any volition in the 
 selection of its grandmother for its companion."^ From 
 which it appears that the theory of agency, as a reason 
 for the rule, is now abandoned, and the theory of identity 
 substituted; but that, while the reason is changed,* the rule 
 itself remains. 
 
 § 35. Thorogood v. Bryan, in the United States. — 
 The English rule upon this subject, as declared in Thor- 
 ogood V. Bryan, ^ prevails in several States of the Union. 
 In Pennsylvania it is followed both in the case of a 
 shipper who brings his action for damage to his goods,* 
 and in the case of a passenger where the action is brought 
 for personal injuries.® In each instance it is held without 
 equivocation that the negligence of the carrier must be 
 imputed to the plaintiff", to the extent of barring his 
 action. Simpson v. Hand,* which is a leading authority. 
 
 1 Armstrong v. Lancashire, &c., » Simpson v. Hand, 6 Wliarton, 
 Ry. Co., L. R. 10 Exch. 47. 311 ; S. C. 36 Am. Dec. 231. 
 
 2 Read, upon this point, Wabash, * Lockhart v. Lichtenthaler, 46 
 &c., R. R. Co. V. Shacklet, 105 111. Penn. St. 151 ; Phila., &c., R. R. Co. 
 364; S. C. 44 Am. Rep. 791. v. Boyer, 97 Penn. St. 91. 
 
 •' 8 C. B. 115. " Supra. 
 
112 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 35. 
 
 was decided long before Thorogood v. Bryan. It is the 
 earliest case, excepting only Vanderplank v. Miller,^ 
 precisely in point, which I have found. The opinion 
 was written by Chief Justice Gibson and the reason upon 
 which that eminent judge rested his position is, that the 
 carrier is the shipper's agent for whose negligence, con- 
 tributing to the loss, the shipper is justly held responsible. 
 He cited Vanderplank v. Miller with approval. The 
 case of Lockhart v. Lichtenthaler,^ was an action for the 
 accidental killing of a brakeman — the circumstances, 
 however, being such that the court held that the deceased 
 must not be considered, for the purposes of the action, 
 a servant, but rather regarded in the light of a passenger. 
 This case is, therefore, an authority upon the second 
 branch of the subject, i. e. the rule as affecting actions 
 for personal injuries, as contra-distinguished from those 
 for the loss of goods. It sustains the ruling in Thoro- 
 good V. Bryan, but questions the reason of the rule as 
 set forth in that case — rejecting alike the theory of 
 agency, which had controlled not only in Thorogood v. 
 Bryan, but also in Simpson v. Hood,^ and the theory of 
 identity, and assigning as the true reason " that it better 
 accords with the policy of the law to hold the carrier 
 alone responsible in such circumstances as an incentive 
 to care and diligence."* 
 
 In Arkansas, also, in a very carefully considered case, 
 the English rule was followed. The plaintiff, in this 
 action, sued to recover damages for the loss of some 
 cattle which he had shipped on board a Mississippi river 
 steamboat bound to New Orleans, which steamboat, 
 going down the river, was negligently run into and sunk 
 by the defendant's steamboat coming up the river, whereby 
 
 1 I Moody & M. 169, by Lord » Supra. 
 Tenterden. * Lockhart v. Lichtenthaler, 46 
 
 » Supra. Penn. St. 151. 
 
§ 35-] OF THIRD PERSONS. 
 
 113 
 
 the plaintiff 's cattle were drowned. The defendants had 
 judgment in the court below on the ground of the con- 
 tributory negligence of the plaintiff's carrier, and upon 
 appeal the judgment on this point was afifirmed.^ The 
 Supreme Court of Arkansas for the twenty years prior 
 to the Civil War was a very learned and able court, and 
 Duggins V. Watson is entitled to count as a cogent 
 authority in favor of the English rule in the United 
 States. 
 
 In Iowa the rule is also laid down, conformably to 
 the English precedent, that where one rides with the 
 owner of a private vehicle, and is injured by reason of 
 the negligence of the person with whom he rides concur- 
 ring with the negligence of a third person, the contribu- 
 tory negligence of the owner of the vehicle is sufficient 
 to prevent a recovery by the injured party in an action 
 against the third person.^ 
 
 In Wisconsin, likewise, the contributory negligence 
 of the driver of a private vehicle is imputed to one riding 
 with him,* and it is a fair inference from the tenor of the 
 opinions, wherein the English rule is referred to with 
 approval, that the Supreme Court of Wisconsin would 
 adopt the rule in Thorogood v. Bryan to the full extent 
 should the general question be fairly presented.* 
 
 In several jurisdictions it has been held, where an 
 
 ' Duggins V. Watson, 15 Ark. 118; Otis v. Janesville, 47 Wis. 422. See, 
 
 S. C. 60 Am. Dec. 560. for a contrary rule in such a case, 
 
 2 Artz V. Chicago, &c., R. R. Co., Knapp v. Dagg, 18 How. Pr. (N. Y.) 
 
 34 Iowa, 153; Payne v. Id., 39 Id. 165; Metcalf w. Baker. 11 Abb. Pr., 
 
 523. And where the owner of the (N. S.), 431; Sheridan v. Brooklyn 
 
 vehicle permits his friend who rides City R. R. Co., 36 N. Y. 39; Rob- 
 
 -with him to drive the horses, the neg- inson v. New York, &c., R. R., Co., 
 
 ligence of the driver will be imputed 66 N Y. 11; and Dyer v. Erie Ry. 
 
 to the owner so as to prevent a Co , 71 Id. 228. 
 recovery in an action of negligence * Compare Houfe v. Fulton, 29 
 
 against a third person. Stafford v. Wis. 296; S. C. 9 Am. Rep. 568; s. 
 
 City of Oskaloosa, 57 Iowa, 749. C. 34 Wis. 608; s. C. 17 Am. Rep. 
 
 « Prideaux v. Mineral Point, 43 463. 
 Wis. 513; S. C. 28 Am. Rep. 558; 
 
 8 
 
114 IMPUTED CONTRIBUTORY NEGLIGENCE [§36. 
 
 action is brought for injuries to a wife from the negli- 
 gence of the defendant, that the contributory negligence 
 of her husband, driving the vehicle in which she was 
 hurt, should be imputed to her in bar of the action.^ But, 
 perhaps, in these cases, as also in a Michigan case,* where 
 the negligence of a master was imputed to a servant girl 
 riding with him in his wagon, which he carelessly suffered 
 to be wrecked by a railway train, there is not so much 
 an application of the rule in Thorogood v. Bryan, as of 
 the general common law rule of principal and agent, 
 which charges a principal with lialiility for the acts of 
 his agent within the scope of his employment.* 
 
 It appears that the English doctrine of privity in 
 negligence between a common carrier and a passenger or 
 shipper, obtains to the full extent, in the United States, 
 only in Pennsylvania ; that it has been held applicable 
 as between a shipper and a common carrier in Arkansas, 
 and this will hereafter be shown to be the rule in New 
 York and Kentucky ;* that it would probably be adopted 
 in Wisconsin, should a case in point reach the Supreme 
 Court of that State, and that in Iowa there is a tendency 
 to follow Thorogood v. Bryan. With these exceptions 
 we shall see that elsewhere, in this country, a different 
 rule is applied. 
 
 § 36. The American rule. — The rule in Thorogood 
 V. Bryan, except as has appeared in the preceding sec- 
 
 ' Peck V. New York, &c., R. R. that Smith v. Smith, (2 Pick. 621 ; S. 
 
 Co., 50 Conn. 379; Carlisle v. Shel- C. 13 Am. Dec. 464), which is a 
 
 don. 38 Vt. 440 ; Gahn v. Ottumwa, standing citation, both by judges and 
 
 60 Iowa, 429 ; Huntoon v. Trumbull, text-writers, as an authority in sup- 
 
 2 McCrary, 314. Contra, Flori v. port of the rule in Thorogood v. 
 
 St. L6uis, 3 Mo. App. 231. Bryan, has nothing to do with the 
 
 2 Lake Shore, &c., R. R. Co. v. question at all. Puterbaugh v. Rea- 
 
 Miller, 25 Mich. 274. sor, (supra), is sometimes miscited 
 
 2 See § 33, and the discussion to the same effect, 
 therem of the case of Puterbaugh v. * See the following section 
 Reasor, 9 Ohio St. 484. And observe 
 
36.] 
 
 OF THIRD PERSONS. 
 
 115 
 
 tion, is denied in the United States. It is the general 
 American rule that there is no privity in negligence 
 between passenger and carrier, and that, therefore, when 
 the passenger brings an action of negligence the contrib- 
 utory negligence of his carrier is not to be imputed to 
 him, in any degree, for the purpose of barring his recovery. 
 The rule in Thorogood v. Bryan is wholly repudiated. 
 Neither upon the theory of agency, nor upon the theory 
 of identity, nor from a supposed consideration of public 
 policy and convenience, will the passenger be held to 
 such a connection with the common carrier by which he 
 is transported, as to be responsible for negligence on his 
 part.^ 
 
 This doctrine, which may properly be denominated 
 the American rule, as distinguished from the English 
 
 1 Danville, &c.. Turnpike Co. v. 
 Stewart, 2 Mete. (Ky.) 119; Louisville, 
 &c., R. R. Co. V. Case's Admr., 9 
 Bush, 728; Otis w. Thorn, 23 Ala. 469; 
 Bennett v. New Jersey, &c.. Trans. 
 Co., 36 N. J. Law, 225; S. C 13 Am. 
 Rep. 435 ; Covington Transfer Co. v. 
 Kelly, 36 Ohio St. 86 ; S. C. 38 Am. 
 Rep. 558; Town of Albion v. Het- 
 rick, 90 Ind. 541; ; s. C. 46 Am. Rep. 
 230 ; Cuddy v. Horn, 46 Mich. 596 ; S. 
 c. 41 Am. Rep 178; Wabash, &c., R. 
 R. Co. V. Shacklet, 105 111. 364; S. C. 
 44 Am. Rep. 791 ; The Washington 
 and The Gregoiy, 9 Wall. 513; Knapp 
 V. Dagg, 18 How. Prac. 165; Chapman 
 V. New Haven, &c., R. R. Co., 19 N. 
 Y. 341 ; Colgrove v. New York, &c., 
 R. R. Co., 20 N. Y. 492 ; Sheridan 
 V. Brooklyn City R. R. Co., 36 N. Y. 
 39 ; Webster v. Hudson River R. R. 
 Co., 38 Id. 260; Barrett v. Third 
 Ave. Ry. Co., 45 Id. 628; Rob- 
 inson V. New York, &c., R. R. Co., 
 66 Id. 11; s. c. 65 Barb. 146; s. c. 
 23 Am. Rep. i, (and note); Dyer 17. 
 Erie Ry. Co., 71 N. Y, 228; Met- 
 calfe V. Baker, 1 1 Abb. Pr., (N. S.), 
 431 ; Perry v. Lansing, 17 Hun. 34. 
 Contra, Brown v. New York, &c., 
 
 R. R. Co., 32 N. Y. 597 ; S. C. 31 
 Barb. 385 ; Mooney v. Hudson River 
 R. R. Co., 5 Robt. 548; Beck v. 
 East River Ferry Co., 6 Id. 82. 
 [These three cases announcing a con- 
 trary doctrine have been distinctly 
 overruled, and it is clear that, in New 
 York, the contributory negligence of 
 the managers of a vehicle or vessel — 
 either a public or private carrier — is 
 not to be imputed to a passenger, 
 whether he be journeying gratuitously 
 or for hire, and irrespective of the 
 kind of conveyance. Compare, also, 
 as illustrating the New York rule, 
 Spooner 7/. Brooklyn City R. R. Co., 
 54 N. Y. 230; S. C. 13 Am. Rep. 
 570 ; Cooper v. E. T. Co., 75 N. Y. 
 116; (compare with this case Hillman 
 V. Newington, 57 Cal. 56) ; Masterton 
 V. New York, &c., R. R. Co., 84 N. 
 Y. 247; S. C. 38 Am. Rep. 510.] 
 See, also, Ricker v. Freeman, 50 N. 
 H. 420 ; Wheeler v. Worcester, 10 
 Allen, 591 ; Eaton v. Boston, &c.,R. 
 R. Co., II Id. 500; McMahon v, 
 Davidson, 12 Minn. 357; Griggs v. 
 Fleckenstein, 14 Id. 81 ; Peck -v. Neil, 
 3 McLean, 26. 
 
Il6 IMPUTED CONTRIBUTORY NEGLIGENCE [§36. 
 
 rule in Thorogood v. Bryan, is fully set forth by Beasley, 
 C. J., in the New Jersey case of Bennett v. New Jersey 
 Railroad, and Transportation Co./ and again by Mr. 
 Justice Mulkey, in the very recent case of Wabash, St. 
 Louis & Pacific Railway Co. v. Shact:let.'' In the opin- 
 ions in these two leading cases, the question in dispute 
 is learnedly and exhaustively argued, and, in the judg- 
 ment of the writer, so far as that may be supposed to 
 have any value, the reasons assigned for the refusal to 
 follow the English precedent are cogent and conclusive. 
 In the New Jersey case the Chief Justice says : " The 
 reason given for the judgment [in Thorogood v. Br)'an] 
 is that the passenger in the omnibus ' must be considered 
 as identified with the driver of the omnibus in which he 
 voluntarily ' becomes a passenger, and that the negligence 
 of the driver is the negligence of the passenger. But I 
 have entirely failed to perceive how it is, that the pas- 
 senger in a public conveyance becomes identified, in ahy 
 legal sense, with the driver of such conveyance. Such 
 identification could only result in one way, that is by con- 
 sidering such driver the servant of the passenger. I can 
 see no ground upon which such a relationship is to be 
 founded. In a practical point of view it certainly does 
 not exist. The passenger has no control over the driver, 
 or agent in charge of the vehicle, and it is this right to 
 control the conduct of the agent which is the foundation 
 of the doctrine that the master is to be affected by the 
 acts of his servant. To hold that the conductor of a street 
 car or of a railroad train is the agent of the numerous 
 passengers who may chance to be in it, would be a pure 
 fiction. In reality there is no such agency, and if we 
 impute it, and correctly apply legal principles, the pas- 
 
 1 Reported in 36 N. J. Law, 225; 791, handed down in the Supreme 
 s. C. 13 Am. Rep. 435. Court of Illinois, at the January term, 
 
 = 105 111. 364; s. c. 44 Am. Rep. 1883. 
 
§ 36.] OF THIRD PERSONS. I i 7 
 
 senger on the occurrence of an accident from the care- 
 lessness of the person in charge of the vehicle in which 
 he is being conveyed, would be without any remedy. It 
 is obvious, in a suit against the proprietor of the car in 
 which he was a passenger, there could be no recovery if 
 the driver, or conductor of such car is to be regarded as 
 the servant of the passenger. And so, on the same ground, 
 each passenger would be liable to every person injured 
 by the carelessness of such driver or conductor, because 
 if the negligence of such agent is to be attributed to the 
 passenger for one purpose, it would be entirely arbitrary 
 ■ to say that he is not to be affected by it for other pur- 
 poses. And yet it is to be presumed that no court would 
 go this length and impose on each person being carried 
 by a railroad train, responsibility for the misconduct of 
 the engineer or conductor of such train. The doctrine 
 of the English case appears to convert the driver of the 
 omnibus into the servant of the passenger for the single 
 purpose of preventing the passenger from bringing suit 
 against a third party, whose negligence has co-operated 
 with that of the driver in the production of the injury. 
 I am compelled to dissent to such a proposition. Under 
 the circumstances in question, the passenger is a perfectly 
 innocent party,having no control over either of the wrong- 
 doers, and I see no reason why, according to the usual 
 rule, an action will not lie in his behalf against either or 
 both of the employers of such wrong-doers."^ 
 
 The English doctrine has not found favor with the 
 critics or text-writers ; ^ it has been, as has appeared, gen- 
 
 1 Bennett v.' New Jersey, &c., ard Crosby, Esq., of the New York 
 Transportation Co., supra. Bar, upon " The Imputed Contribu- 
 
 2 Shear. & Redf. on Neg., § 46; tory Negligence of Third Persons," 
 Whart. on Neg., § 395; Thomp. on Am. Law Rev., Nov., 1880, Vol. I, 
 Carriers, 284; i Smith's Leading (N. S.) 770, to which I have frequently 
 Cases (Eighth Am. edition of 1885), referred in the preparation of this sec- 
 505, the note to Ashby v. White, tion. 
 
 See, also, an essay by Ernest How- 
 
Il8 IMPUTED CONTRIBUTORY NEGLIGENCE [§37- 
 
 erally repudiated by our courts, and it is reasonably cer- 
 tain that Thorogood v. Bryan will not be followed in the 
 future, in any State in the Union not already committed 
 to that rule. Whether it will not ultimately be abandoned 
 in Pennsylvania and the English Courts is at least a 
 question. 
 
 % Zl- Privity in negligence between a public carrier 
 and a shipper of goods. — The doctrine of privity in neg- 
 ligence between a common carrier and a shipper of goods 
 stands upon quite a different ground from that upon 
 which the rule in Thorogood v. Bryan has been made to 
 rest. The contract for the carriage of goods differs in 
 several very essential particulars from that for the carriage 
 of passengers. In the one case the carrier, at common 
 law, is an insurer, in the other he is not. As to the ship- 
 per, the carrier is an agent, and liable to the full extent 
 involved in that relation ; as to a passenger, the carrier is 
 indeed an agent to a certain extent ; but in a degree es- 
 sentially different, and with powers and .obligations ma- 
 terially modified and curtailed. The possession of the 
 carrier is that of the merchant-shipper, he is the bailee 
 and quasi, the agent of the shipper. Whatever he does 
 in the course of the service and bailment, he does as the 
 agent and representative of the owner of the goods, and, 
 this being so, it follows that all the consequences of the 
 negligence of the carrier ought to be visited upon the 
 owner of the freight, to the extent of depriving him of a 
 remedy over against a third party for losses to which the 
 carrier by his wrongful or negligent act has contributed. 
 The general rules as to contributory negligence as a de- 
 fense are properly applied to the shipper in a case of this 
 kind. It needs no argument to show that there is no 
 analogy between these cases and those in which passen- 
 gers in one conveyance have been held entitled to an 
 
§ 37-J OF THIRD PERSONS. I ig 
 
 action against the owner of either, or both of the vehicles, 
 from the negligent management of which, injury has been 
 received. In those cases there is no bailment, and no 
 agency. There is in them no absolute obligation on the 
 part of the carrier, to deliver his passenger safely, and the 
 carrier cannot maintain an action f6r an injury to the pas- 
 senger, whose right of action, however, is, and ought to 
 be, the same against both wrong-doers, and rests upon 
 the same foundation of wrong-doing. If it is concurrent, 
 although not in intentional concert, the injured passenger 
 may recover of either. But the shipper, who has en- 
 trusted his goods to the common carrier, stands upon no 
 such footing, and it is justly held that the negligence of 
 the carrier shall be imputed to the shipper, when it has 
 contributed to produce the injury for which the shipper 
 brings his action against a third party. This rule is an- 
 nounced in Vanderplank v. Miller,^ by Lord Tenterden, 
 and it has been followed in this country, in Kentucky,^ 
 Pennsylvania,^ New York,* Arkansas,® and perhaps in 
 Massachusetts." 
 
 The weight of authority is, without question, in favor 
 of imputing the negligence of a common carrier to a 
 shipper, in actions of the character considered in this and 
 the preceding sections, to the extent of barring an action 
 by him against a third party, upon the grounds herein set 
 forth; and on the other hand, there is a decided weight of 
 precedent against imputing the negligence of the carrier 
 to a passenger in like case. The shipper should, while 
 
 ' I Moody & M. 169. « Smith v. Smith, 2 Pick. 621 ; s. C. 
 
 2 Broadwell v. Swigert, 7 B. Mon. 13 Am. Dec. 464. In this case the 
 
 39 ; S. C. 45 Am. Dec. 47. owner, suing for an injury to a horse 
 
 ' Simpson v. Hand, 6 Wash. 311 ; received from a nuisance in the high- 
 
 S. C. 36 Am. Dec. 231. way, while in possession, and being 
 
 * Arctic Fire Ins. Co. v. Austin, 69 used by one who had hired him, was 
 
 N. Y. 470; S. C. 25 Am. Rep. 221. defeated of his action by reason of the 
 
 ° Duggins V. Watson, 1 5 Ark. 118; negligence of the bailee in possession. 
 S. C. 60 Am. Dec. 560. 
 
I20 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 39. 
 
 the passenger should not, be charged with his carrier's 
 negligence. The shipper, having constituted the carrier 
 his agent, should recover only when his agent has been 
 free from fault, while the passenger, not having consti- 
 tuted the carrier his agent to the same extent, and not 
 being chargeable with' the consequences of his acts or de- 
 faults, should recover whenever he is himself free from 
 the imputation of contributory neglect, without regard 
 to the acts or omissions of the carrier. This is the rule^ 
 in respect of both shipper and passenger, as declared by 
 the Courts of Appeal in New York,^ and Kentucky ,** and 
 it is submitted as the proper solution of the question. 
 
 § 38. In the case of persons non sui juris. — In actions 
 brought by or in behalf of children, idiots, lunatics, or 
 other persons non sui juris, for injuries to which the neg- 
 ligence of their legal custodians contributed, the question 
 has arisen, whether or not, upon the theory of agency or 
 identity, such contributory negligence on the part of the 
 parent or guardian should be imputed to the plaintiff in 
 bar of the action. Upon this question the courts have 
 not been able to agree. It is held in many jurisdictions 
 in this country, that such negligence is justly to be im- 
 puted to an infant plaintiff, while in others it is strenu- 
 ously denied. Let us first consider the classes of persons 
 to which the term non sui juris is applicable. 
 
 § 39. Who are to be held non sui juris. — Idiots and 
 lunatics are of this class, and, therefore, in general, have 
 no redress when injured through the carelessness of their 
 
 Compare the case of Chapman v. 2 See Danville, &c., Turnpike Co.v. 
 
 New Haven R. R. Co., 19 N. Y. 341, Stewart, 2 Mete. (Ky.), 119, fortherule 
 
 for the rule of non-imputability in the as to passengers, and Broad well v. 
 
 case of a passenger, and The Arctic Swigert, 7 B. Mon. 39, for the corre- 
 
 Fire Ins. Co. v. Austm 69 N. Y. 470, sponding rule as to a shipper, 
 for the rule of imputability in case of 
 a shipper. 
 
§ 39-] ^^ THIRD PERSONS. 121 
 
 * 
 
 legal custodians in exposing them, or in suffering them 
 to expose themselves to danger, or where they are liable 
 to injury from being subjected to the same rules of con- 
 duct as rational persons.^ Infants, also, it may be said, 
 in general, belong to this class, but not all infants very 
 evidently. It is a question of capacity, and it has been 
 found a very difficult question, and has been, in many 
 courts, a very fruitful source of controversy, as to what 
 age is sufficient to constitute an infant sui juris. Where 
 there is no doubt as to the capacity of the child, at one 
 extreme or the other, to avoid danger, the court will 
 decide it as a matter of law. Thus, courts have held, as 
 a matter of law, children of various ages from one year 
 and five months to seven years non sui juris} 
 
 " An infant," says the Court of Appeals of New York, 
 " in its first years is not sui juris. It belongs to another 
 to whom discretion in the care of its person is exclusively 
 confided. The custody of the infant of tender years is 
 confided by law to its parents, or to those standing in 
 
 -' Willetts V. Buffalo, &c., R. R., 14 East, &c., R. R. Co., 135 Mass. 363; 
 
 Barb. 585. Texas, &c., R. R. Co. v. O'Donnetl, 
 
 2 Kreig v. Wells, i E. D. Smith, 58 Texas, 27 ; Frick v. St. Louis, &c., 
 76; Toledo, &c., R. R. v. Grable, 88 R. R. Co., 75 Mo. 542 and 595 ; Chi- 
 lli. 441 ; Callahan v. Bean, 9 Allen cago, v. Starr's Admr. 42 111. 174; 
 401 ; Evansville, &c., R. R. v. Wolf, Meeks v. Southern, &c., R. R. Co., 
 59 Ind. 89; O'FIaherty v. Union, R. 52 Cal. 602; Pittsburg, &c., R.R. Co. 
 R.Co., 45 Mo. 70; Mangam z/. Brook- v. Vining, 27 Ind. 513. But a child 
 lyn, &c., R. R. Co., 38 N. Y. 455; seven or eight years of age has been 
 Mascheck v. St. Louis, &c., R. R. held capable of taking ordinary care 
 Co., 3 Mo. App. 600; LaFayette, &c., of himself. Gillespie v. McGowen, 
 R. R. Co. V. Huffman, 28 Ind. 287 ; 100 Penn. St. 144. So a child of 
 Pittsburg, &c , R. R. Co. v. Caldwell, eleven years when active and intelli- 
 74 Penn. St. '421; Jeffersonville &c.. gent. McMahon v. New York, 33 
 R. R. Co. V. Bowen, 40 Ind. 545 ; N. Y., 642 ; and so one of thirteen 
 McGary v. Loomis, 63 N. Y. 104 ; and of fourteen years of age ; Achten- 
 s. c. 20 Am. Rep. 510; North Penn. hagen v. Watertown, 18 Wis. 331;. 
 R. R. Co., V. Mahoney, 57 Penn. St., Plumley w. Birge, 124 Mass. 57; S. C. 
 187; Lehman v. Brooklyn, 29 Barb. 26 Am. Rep. 645 ; Rockford, &c., R. 
 234; McLain v. Van Zandt, 7 Jones R. Co. v. Delaney, 82 111. 198; s. c. 
 and Spenc. 347; Gavin v. City of 25 Am. Rep. 308; Nagle v. AUe- 
 Chicago, 97 111. 66; Bay Shore R. R. gheny, &c., R. R. Co., 88 Penn. St. 
 Co. V. Harris, 67 Ala. 6; Morgan v. 35 ; s. C. 32 Am. Rep. 413. 
 Bridge Co., 5 Dillon, 96; McGeary v. 
 
122 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 40. 
 
 loco parentis, and not having that discretion necessary 
 for personal protection, the parent is held in law to exer- 
 cise it for him, and in cases of personal injuries received 
 from the negligence of others, the law imputes to the 
 infant the negligence of the parents. The infant being 
 non sui juris, and having a keeper in law, to whose dis- 
 cretion in the care of his person he is confided, his acts, 
 as regards third persons, must be held in law the acts of 
 the infant, his negligence the negligence of the infant." ^ 
 
 § 40. The New York rule. Hart field v. Roper. — 
 In New York it is sturdily maintained that the contrib- 
 utory negligence of a third person, who is guilty thereof 
 as parent, custodian, or one in loco parentis, must be 
 imputed to a plaintiff, who is non sui juris, and who is, 
 therefore, in contemplation of law under the charge or 
 control of such third person. The leading authority upon 
 this question is the case of Hartfield v. Roper,* in which 
 this question, as affecting an infant plaintiff, was first 
 presented to the court. The facts disclosed by the evi- 
 dence were these : The plaintiff, a child about two years 
 old, was alone in the traveled portion of a highway at 
 some distance from any house ; the defendant was driving 
 a sleigh ; the child was run over by the horses and injured ; 
 neither the defendant nor those with him saw the child 
 before the injury. The action was an action upon the 
 case. The verdict was for the plaintiff. The opinion 
 of the court was by Cowen, J., upon a motion for a new 
 trial. A new trial was granted ; first, because the evi- 
 dence, which is fully reported, failed to show negligence 
 on the part of the defendant, and, secondly, because it 
 did show clearly, negligence on the part of the plaintiff. 
 
 1 Mangam v. Brooklyn, &c., R. R. 273 ; decided in the Supreme Court of 
 Co., 38 N. Y. 455. judicature of New York in 1839. 
 
 2 21 Wend. 615 ; s. C. 34 Am. Dec. 
 
§ 40-] OF THIRD PERSONS. 1 23 
 
 The reasoning of the court upon the second branch of 
 the decision is in substance as follows : The custody of a 
 child is confided by law to its parents ; it cannot be 
 exposed, as this child was, without gross negligence. An 
 adult injured by a collision cannot recover if he has con- 
 tributed to the injury ; the same rule is applicable to 
 children ; it can be enforced only by requiring care from 
 those who have their custody. An infant is not sui juris. 
 He belongs to his custodian ; the custodian is his agent. 
 The custodian's neglect is the infant's neglect. 
 
 " Was the plaintiff," said the learned judge, the first 
 of common law magistrates in New York, "guilty of 
 negligence ! His counsel seem to think he made a 
 complete exception to the general rule demanding care 
 on his part by reason of his extreme infancy. Is this, 
 indeed, so .? The custody of such a child is confided by 
 law to its parents, or to others standing in their place, 
 and it is absurd to imagine that it could be exposed in 
 the road, as this child was, without gross carelessness. . 
 , . The child has the right to the road for the purposes 
 of travel, attended by a proper escort. But at the tender 
 age of two or three years, and even more, the infant 
 cannot personally exercise that degree of discretion that 
 becomes instinctive at an advanced age, and for which 
 the law must make him responsible, through others, if 
 the doctrine of mutual care between the parties using 
 the road is to be enforced at all in this country. It is 
 perfectly well settled that if the party injured by a colli- 
 sion on the highway has drawn the mischief upon himself 
 by his own neglect he is not entitled to an action, even 
 though he be lawfully in the highway pursuing his 
 travels, which can scarcely be said of a toppling infant 
 suffered by his guardians to be there, either as a traveler 
 or for the purpose of pursuing his sports. The applica- 
 tion may be harsh when made to small children. As 
 
124 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 40- 
 
 they are known to have no personal discretion, common 
 humanity is alive to their protection ; but they are not, 
 therefore, exempt from the legal rule when they bring- 
 an action for redress — and there, is no other way of 
 enforcing it, except by requiring due care at the hands 
 of those to whom the law and the necessity of the case 
 have delegated the exercise of discretion. An infant is 
 not sui juris. He belongs to another to whom discre- 
 tion in the care of his person is exclusively confided. 
 That person is keeper and agent for this purpose, and in 
 respect to third persons his act must be deemed that 
 
 of the infant, his neglect the infant's neglect 
 
 If his proper agent and guardian has suffered him to 
 incur mischief it is much more fit that he should look for 
 redress to that guardian, than that the latter should neg- 
 ligently allow his ward to be in the way of travelers, and 
 then harass them in courts of justice, recovering heavy 
 verdicts for his own misconduct."^ 
 
 This judgment, and the reasoning upon which it was 
 based, have always satisfied the New York courts, and 
 they have consistently adhered to this rule, abating no 
 jot or tittle of its anomaly and harshness.* It is fol- 
 
 ^ Hartfieldw. Roper, 21 Wend. 615. 255; S. C. 10 Am. Rep. 361. But, 
 
 2 See Thurber v. Harlem, &c., R. compare, Lannen v. Albany Gas 
 
 R. Co., 60 N. Y. 333; Mangam v. Light Co., 46 Barb. 270, in which 
 
 Brooklyn, &c., R. R. Co., 36 Barb. Justice Hogeboom says : " I know of 
 
 239 ; S. C. 38 N. Y. 456 ; Lehman v. no just or legal principle which, when 
 
 City of Brooklyn, 29 Barb. 237; Mow- the infant himself is free from negli- 
 
 rey v. Central, &c., R. R. Co., 66 Id. gence, imputes to him the negligence 
 
 43 ; McLain v. Van Zandt, 7 Jones of the parent when, if he were an 
 
 and Spenc. 351 ; McGary v. Loomis, adult, he would escape it." This is 
 
 63 N. Y. 104; s. C. 20 Am. Rep. 510 ; a much quoted but somewhat irrele- 
 
 Morrison w. Erie Ry. Co., 56 N.Y. 302 ; vant dictum. The opinion from 
 
 Honegsberger v. Second Ave. R. R. which it is taken was given in a case 
 
 Co., I Keys, 552 ; s. C. 33 How. Pr. where the child was of such an age 
 
 193; 2 Abb., App. Dec. 378; Burke as to have, perhaps, some degree of 
 
 V. Broadway, &c., R. R. Co., 49 discretion. In such cases, as will 
 
 Barb. 532 ; Kreig v. Wells, i E. D. hereafter appear, the rule in Hartfield 
 
 Smith, 77; Ihlz/. Forty- Second Street z/. Roper is usually modified even in 
 
 R. R. Co., 47 N. Y. 323 ; s. c. 7 Am. those jurisdictions where it is gener- 
 
 Rep. 450 ; Cosgrove v. Ogden, 49 N. Y. ally upheld. 
 
§41-] OF THIRD PERSONS. 1 25 
 
 lowed, moreover, by the courts of many other States, to 
 the effect that, in the case of a young child, the negli- 
 gence of a parent, or other person to whose care the 
 child is entrusted, has the same effect in preventing the 
 maintenance of an action for an injury occasioned by the 
 negligence of another, that his own want of due care 
 would have if the plaintiff were an adult.^ 
 
 § 41. The rule modified in various jurisdictions. — 
 It appears that the New York rule laid down in Hart- 
 field V. Roper,* obtains in Massachusetts, Maine, Califor- 
 nia, Minnesota, Maryland, Indiana, Illinois, and Kansas. 
 But in several instances the courts of these States, while 
 adhering more or less consistently to the rule, have mod- 
 ified it in several very essential particulars. The harsh- 
 ness of it is recognized even in the courts that are gov- 
 erned by it, and there may be noticed in the reports of 
 each of these States a tendency to confine the rule very 
 
 » Wright t/.Malden,&c., R. R. Co., sonville, &c., R. R. Co. v. Bowen, 40 
 
 4 Allen, 283; Lovett w. Salem, &c., R. Id. 545; S. C. 49 Id. 154; Hathaway 
 
 R.Co., 9 Id. 5S7 ; Callahan w. Bean, 9 u. Toledo, &c., R. R. Co., 46 Id. 
 
 Id. 401 ; Holly V. Boston Gas Light 25; Evansville, &c., R. R. Co., v, 
 
 Co., 8 Gray, 123; Mulligan v. Curtis, Wolf, S9 Id. 89; Aurora, &c., R. R. 
 
 100 Mass. 512; Ljmch v. Smith, 104 Co. v. Grimes, 13 111. 585 ; Chicago, 
 
 Id. 52; s. C. 6 Am. Rep. 188 ; Mc- &c., R. R. Co. v. Major, 18 Id. 349; 
 
 ■Gerry v. East, &c., R. R. Co., 135 Id. v. Starr's Admr., 42 Id. 174; Id. 
 
 Id. 363 ; Brown v. European, &c., R. v. Gregory, 58 Id. 226 ; Hund v. 
 
 R. Co., 58 Maine, 384; Leslie z/. City Geier, 72 Id. 393 ; Chicago, &c., R. 
 
 of Lewiston, 62 Id. 468. Compare R. Co. v. Becker, 76 Id. 25 ; S. C. 
 
 O'Brien v. McGlinchy, 68 Id. 552; 84 Id. 482; Ohio, &c., R. R. Co. v. 
 
 Karr v. Parks, 40 Cal. 188; Schier- Stratton, 78 Id. 88; Chicago, &c.. R. 
 
 hold V. North, &c., R. R. Co., 40 Id. R. Co. v. Hesing, 83 Id. 204; To- 
 
 447 ; Meeks v. Southern, &c., R. R. ledo. &c., R. R. Co. v. Grable, 88 Id. 
 
 Co., 52 Id. 602; s. C. 56 Id. 513; 441; Gavin z/. City of Chicago, 97 Id. 
 
 38 Am. Rep, 67 ; City of St. Paul v. 66. [In Illinois this question seems 
 
 Kuby, 8 Minn. 166; Fitzgerald v. to be unsettled, with a decided ten- 
 
 St Paul, &c.', R. R. Co., 29 Id. 336; dency to apply the rule in Hartfield 
 
 S. C.43 Am. Rep. 212; McMahon ■Z'. v. Roper, as modified by the local 
 
 Northern, &c.. R. R. Co., 39 Md. rule of comparative negligence.] 
 
 439; Baltimore, &c., R. R. Co. v. Smith ■z/. Atchison, &c., R. R. Co., 25 
 
 McDonnell, 43 Id. 551; Pittsburgh, Kan. 738; Atchison, &c., R. R. Co., 
 
 &c., R. R. Co. V. Vinings' Admr., v. Smith, 28 Id. 541. 
 
 27 Ind. 513; La Fayette, &c., R. R. ^ 21 Wend. 615; S. C. 34 Am. 
 
 Co, V. Huffman, 28 Id. 287 ; Jeffer- Rep. 273. 
 
126 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 4I. 
 
 Strictly, and not in any wise to extend it, Thus, in Mary- 
 land, it has been held that, where the defendant might, 
 by the exercise of ordinary care and prudence, have 
 avoided the consequences of his negligence, a child non 
 sui juris will not be prevented from recovering in con- 
 sequence of its parents' neglect.^ This is, perhaps, an 
 attempt to apply the learning in Davies v. Mann,** since 
 it amounts to very little more than the rule that if the 
 defendant, being a traveler, can, by the exercise of ordi- 
 nary care, avoid doing an injury to something exposed 
 in the highway, he is bound at his peril to do it — without 
 much reference to the conduct of the plaintiff. In 
 another Maryland case,* where the plaintiff, a child five 
 years and nine months old, having been sent by its 
 parents across a street, upon an errand, was injured by 
 the defendant's cars, while returning to its home, and 
 there was some evidence of negligence on the part of the 
 persons in charge of the train, it was held a proper case 
 for the jury, and the court instructed the jury that the 
 plaintiff might recover if the injury resulted from a want 
 of ordinary care on the part of the defendant's agents, 
 provided it appeared that the plaintiff had acted with 
 such a degree of care and caution as, under the circum- 
 stances, might reasonably be expected from one of his 
 age and intelligence.* The doctrine of comparative neg- 
 ligence, of course, modifies the rigor of the rule in Illi- 
 nois.* 
 
 Even in New York, where the rule was first an- 
 nounced, it has been in some degree qualified in late 
 
 1 Baltimore, &c., R. R. Co. v. Mc- » Chicago, &c., R. R. Co. v. Major, 
 
 Donnell, 43 Md. 556. 18 111. 349; Pittsburgh, &c., R. R. 
 
 ^ loMee. &W. 546. Co. v. Bumstead, 48 111. 221; Kerr 
 
 3 McMahon v. Northern, &c., R. R. v. Forgue, 54 111. 482 ; S. C. 5 Am. 
 
 Co., 39 Md. 439. Rep. 146; Chicago, &c., R. R. Co. v. 
 
 *■ See, also, BarksduU v. New Or- Gregory, 58 Id. 226 ; Hund v. Geier, 
 
 leans, &c., R. R. Co., 23 La. Ann. 72 Id. 393; Chicago, &c., R. R. Co. 
 
 180. V. Hesing, 83 Id. 204. 
 
§ 4I-] OF THIRD PERSONS. 12/ 
 
 decisions. In McGaiy v. Loomis,^ it was held that a 
 child four years old, being upon the sidewalk and in the 
 exercise of due care, might recover for an injury received 
 by falling into a pool of hot water formed near the side- 
 walk by the escape of water from a waste pipe from the 
 works of the defendant,^ and, again, in I hi v. Forty- 
 Second St. R. R. Co.,* where a child about three years 
 of age was run down and fatally injured by the negligent 
 management of a street railroad car, it was held that, if 
 the child exercised proper care, the company was liable 
 without reference to the negligence of the parents of the 
 child in allowing it to go across the street. But it was 
 said that, if the child did not exercise due care the con- 
 duct of its parents would then be essential to determine 
 the liability of the company. 
 
 Where a child, even though never so much non sui 
 juris, has not committed, or omitted any act which would 
 be held to constitute negligence in an adult, the contrib- 
 utory negligence of its parent or guardian must not be 
 imputed to it, in an action in its behalf, for an injury 
 from the negligence of another. When the child has, of 
 itself, acted with discretion, and is, notwithstanding that,^ 
 injured by another's fault, it is hardly short of monstrous 
 to impute its parents' or custodian's negligence or folly 
 to it for the purpose of defeating its action for the injury 
 it has suffered.* 
 
 " I know of no just or legal principle," says Mr. Jus- 
 
 ' 63 N. Y. 104; s. c. 20 Am. Rep. was in consequence no cause of action 
 
 510. in favor of a scalded child. 
 
 2 Upon a precisely similar state of ' 47 N. Y. 317; S. C. 7 Am. Rep. 
 
 facts in the case of Prime v. Ken- 450. 
 
 tucky Furniture Co. it was decided, * Munn v. Reed, 4 Allen, 431 ; 
 
 in Nov., 1884, in the Court of Com- Lynch v. Smith, 104 Mass. 52; S. C. 
 
 mon Pleas at Louisville, by Mr. Jus- 6 Am. Rep. 188 ; O'Brien v. Mc- 
 
 tice Stites, that the defendant was Glinchy, 68 Me. 552; Pittsburgh, 
 
 not liable for such hot water suffered &c., R. R. Co. v. Bumstead, 48 111. 
 
 to escape into a gutter, and that there 221. 
 
128 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 4I. 
 
 tice Hogeboom, "which, when the infant himself is free 
 from negligence, imputes to him the negligence of the 
 parent, when if he were an adult he would escape it. 
 This would be, I think, ' visiting the sins of the fathers 
 upon the children' to an extent not contemplated in the 
 Decalogue, or in the more imperfect digests of human 
 law."* 
 
 It is believed that the rule of Hartfield v. Roper has 
 not been construed in any court, either to excuse gross 
 negligence or to permit a voluntary injury to one non 
 sui juris. It is a general rule, quite apart from this 
 matter of the imputability of a parents' negligence to an 
 injured child, that a higher degree of care must be exer- 
 cised toward persons of this class than the law exacts in 
 dealing with other classes of persons.* Conduct which 
 might ordinarily be up to the standard of " due care " is 
 sometimes held " gross negligence," or as evidence of a 
 purpose to do a wilful injury, when considered with refer- 
 ence to these irresponsible classes.* Children, by reason 
 of their tender age, are entitled to more care under the 
 same circumstance than an adult. The policy of the law 
 requires that peculiar tenderness should be exercised in 
 extending to them civil protection. This view is clearly 
 recognized on the criminal side of the law. So far from 
 the neglect, or dereliction, of parents or guardians being 
 
 ' Lannen z/. Gas Co., 46 Barb. 264; s. C. 54 Am. Dec. 67; Pittsburgh, 
 
 affirmed 44 N. Y. 459. &c., R. R. Co. v. Caldwell, 74 Penn. 
 
 a Phila., &c., R. R. v. Spearen, St. 421 ; Lucas v. Taunton, &c , R. 
 
 47 Penn. St. 300; Smith v. O'Conner, R. Co., 6 Gray, 71 ; Kerr v. Forgue, 
 
 48 Id. 218; Penn. R. R. v. Morgan, 54 111. 484; s. C. 5 Am. Rep. 146; 
 82 Id. 134; Isabel v. Hannibal R. R., Brennan v. Fair Haven, &c., R. R. 
 60 Mo. 475; Chicago, &c., R. R. z/. Co., 45 Conn. 284; Walters ■Z'. Chi- 
 Dewey, 26 111. 259; Bannon z/. Bal- cago, &c., R. R. Co., 41 Iowa, 76; 
 timore R. R., 24 Md. 108; Walters East Saginaw, &c,R. R. Co. w. Bohn, 
 V. Chicago, &c., R. R. Co., 41 Iowa, 27 Mich. 503; Kenyon v. New York, 
 76; O'Uax&v. Hudson River R. R. &c., R. R. Co., 5 Hun. 479; Texas, 
 Co., 38 N. Y. 445 ; Singleton v. East- &c., R. R. Co. v. O'Donnell, 58 
 em Counties, Ry Co , 7 C. B. (N. S.) Texas, 27 ; Galveston, &c., R. R. Co. 
 2°7- V. Evansich, 61 Id. 3 ; S. C. 61 Id. 24. 
 
 ' Robinson v. Cone, 22 Vt. 213 ; 
 
§ 41'] OF THIRD PERSONS. 1 29 
 
 a reason why a child should be misused with impunity by 
 third persons, it has been held that such wrong-doing 
 causing injury to children is an offense of an aggravated 
 nature.^ 
 
 In actions for injuries to irresponsible persons there 
 must be, in every case, where the action can be sus- 
 tained, a breach of duty. It is not enough that some- 
 body's child is hurt. There must be some dereliction 
 on the part of the defendant, or it is, in case of the 
 child, as in the case of any one else, damnum absque 
 injuria. This important element in every proper ac- 
 tion of this nature seems frequently to be overlooked. 
 Judge Thompson calls attention to a curious instance 
 of it in the case of Lygo v. Newbold.^ Alderson, B., 
 says, in that opinion : " The negligence in truth is at- 
 tributable to the parent who permits the child to be at 
 large. It seems strange that a person who rides in bis 
 carriage without a servant, if a child receives an injury 
 by getting up behind for the purpose of having a ride, 
 should be liable for the injury." In such a supposed 
 case as this dictum suggests, we should have the 
 thoughtless act of a child bringing himself in contact 
 with a person performing his business in a lawful man- 
 ner, and, although the child were too young to perceive 
 the difference between danger and safety, still, there be- 
 ing no breach of duty on the part of the owner of the 
 vehicle, the action as supposed would clearly be entirely 
 without foundation.* In North Penn. R.- R, v. Mahon- 
 
 » Wharton's Crim. Law, § 2529, 459; Hubener v. New Orleans, &c., 
 
 R.w. Friend, R. &, R. 20; R. v. Squire, R. R. Co., 23 La. Ann. ^92 ; Chicago, 
 
 I Russ. C. & M. 80, 678; R. V. Bubb, &c., R. R. Co. v. Stumps, 69 III. 409; 
 
 4 Cox's C. C. 455; R. I/. Smith, L. & Phila., &c., R. R. Co. v. Hummel, 
 
 C. 607; S. C. 10 Cox's C. C. 82. 44 Penn. St 375 ; Ostertag v. Pacific, 
 
 * 9 Exch. 302. &c., R. R. Co., 64 Mo. 421 ; Snyderw. 
 
 ' See, also, Phila., &c , R. R. Co. Hannibal, &c., R. R. Co., 60 Id. 413; 
 
 V. Spearen, 47 Penn. St. 300; Bulger Boland v. Missouri, &c.,R. R. Co., 36 
 
 V. Albany, &c., R. R. Co., 42 N. Y. Id. 484; Brown v. European, &c., R, 
 
 9 
 
130 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 4U 
 
 ey,^ where an infant was in the arms of one to whom it 
 had not been entrusted, and who, having rescued it from 
 one peril, immediately exposed it to another, it was held 
 that the child was not barred of its action, there being no 
 proper legal connection between the infant plaintiff and 
 its self-constituted custodian.^ The English rule is de- 
 clared in Waite v. Northeastern Ry. Co.* In this case 
 it appears that the plaintiff, an infant about five years of 
 age, was in charge of its grandmother, who procured 
 tickets for both at a station, with the intention of taking 
 the train at that place. In crossing the track to reach a 
 platform they were run down by a train, under circum- 
 stances of concurrent negligence on the part of the grand- 
 mother and of the servants of the company. The grand- 
 mother was killed, and the plaintiff seriously injured. 
 Lord Campbell held that the plaintiff was so identified 
 with its grandmother that the action could not be main- 
 tained. This view was sustained on the appeal. " The 
 case is the same as if the child had been in the mother's 
 arms." " The person who has charge of the child is iden- 
 tified with the child." " If a father drives a carriage, in 
 which his infant child is, in such a way that he incurs an 
 accident which by the exercise of reasonable care he 
 might have avoided, it would be strange to say that 
 though he himself could not maintain an action, the child 
 could," say the judges in the Court of Exchequer Cham- 
 ber to which this case was appealed. 
 
 There seems to be no other English case in point, and 
 no decisions similar to those in the American reports that 
 follow more or less exactly the New York case of Hart- 
 
 R. Co., 58 Me. 384; Meeks v. South- taine, &c., R. R. Co. v. Snyder, 18 Ohio 
 
 em, &c., R. R. Co., 52 Cal. 602; s. C St. 399; s. C. 24 Id. 670: East Sagi- 
 
 56 Id. 513. naw, &c., R. R. Co. v. Bohn, 27 Mich. 
 
 1 57 Penn. St. 187. 503. Contra, Leslie v. Lewiston, 62 
 
 2 Compare Pittsburgh R. R. v. Me. 468. 
 
 Caldwell, 74 Penn. St. 421 ; Bellefon- ' El., Bl. & El. 719. 
 
§41-] OF THIRD PERSONS. I3I 
 
 field V. Roper.^ Waite v. Northeastern Ry. Co." turns 
 upon the legal identity of the infant plaintiff with his 
 guardian or custodian, and it does not go beyond that 
 class of cases in which the parent or custodian is present 
 and controlling the infant at the time of the injury. 
 Many American cases recognize it to be material, in ac- 
 tions of this kind, when the negligence of the parent is 
 to be imputed to the infant, that the parent be present 
 when the injury is suffered. Holly v. Boston Gaslight 
 Co.* is in point. In this case a child nine years of age 
 was injured by escaping gas, in her father's house, the fa- 
 ther failing to take proper precautions against injury af- 
 ter the leak was discovered. The court held that the 
 plaintiff, being under the control of her parent, would 
 have to bear the consequences of any want of ordinary 
 care on his part. " She was under the care of her father," 
 says the court, " who had the custody of her person, and 
 was responsible for her safety. It was his duty to watch 
 over her, guard her from danger, and provide for her wel- 
 fare, and it was her's to submit to his government and 
 control. She was entitled to the benefit of his superin- 
 tendence and protection, and was consequently subject to 
 any disadvantages resulting from the exercise of that pa- 
 rental authority which it was both his right and duty 
 to exert. Any want of ordinary care on his part is at- 
 tributable to her in the same degree as if she were wholly 
 acting for herself." * 
 
 This is the doctrine of the English case,® which, re- 
 duced to a rule, is, that whenever the child is in the actual 
 
 ' But see, Singleton v. Eastern J. (Exch.), 177; Campbell's Negli- 
 
 Counties Ry. Co., 7 C. B (N. S.) 287 ; gence, § 81. 
 
 Mangan v. Atterton, 4 Hurl. & Colt, " Supra. 
 
 388; S. C. L. R. I Exch. 239; Gard- = 8 Gray, 123. 
 
 ner v. Grace, i Fost. & Fin. 359; * Holly w. Boston Gaslight Co., j«- 
 
 Hughes V. Macfie, 2 Hurl. & Colt, fira. 
 
 744: s. C. 10 lur. (N. S.), 682; 33 L. 5 Waite v. Northeastern Ry. Co., 
 
 El., Bl. & El. 719. 
 
132 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 42. 
 
 custody and control of the parent or guardian, any negli- 
 gence contributing to the injury, of which such custodian 
 may have been guilty, must be imputed to the child, in an 
 action by, or for the benefit of the child, for damages suf- 
 fered by reason of the negligence of another.^ 
 
 § 42. A criticism of Hartfield v. Roper. — ^The rule 
 of imputed negligence, as applied to persons nan sui 
 Juris, is an anomaly. The English law on this point pre- 
 sents an extraordinary illustration. On the one hand it 
 is held that the negligence of a person having charge of 
 a child is the negligence of the child, and imputable to it, 
 when the child comes into a court of justice and asks 
 damages for an injury negligently inflicted upon it by the 
 defendant.^ But,/^r contra, where a donkey is carelessly 
 run down in the highway, where he is negligently exposed, 
 the defendant is held liable,' and though oysters are neg- 
 ligently placed in a river-bed, it is an injury redressible at 
 law in damages for a vessel negligently to disturb them.* 
 It appears, therefore, that the child, were he an ass or an 
 oyster,® would secure a protection which is denied him as 
 a human being of tender years, in such jurisdictions as en- 
 force the English or the New York rule in this respect* 
 But the objection to the rule which imputes a parent's or 
 guardian's negligence to an infant plaintiff, goes far be- 
 yond the matter of consistency or inconsistency. The 
 case of Hartfield v. Roper is obnoxious to far more se- 
 rious criticism than that it seems to afford less protection 
 
 1 StiUson V. Hannibal, &c., R. R. " Davies v. Mann, 10 Mee. & W. 
 Co., 67 Mo. 671 ; Lannen v. The Al- 546. 
 
 bany Gas Co., 46 Barb. 264; s. C. 44 * Mayor pf Colchester v. Brooke, 7 
 
 N. Y. 459; Ohio, &c., R. R. Co. v. Q. B. 377; Vennall v. Gamer, i 
 
 Stratton, 78 111. 88 ; Carter v. Towne, Cromp. & M. 21. 
 
 98 Mass. 567; s. C. 103 Mass. 507; » In England, even a dog, when a 
 
 Morrison v. Erie Ry. Co., 56 N. Y. trespasser, has some rights. Town- 
 
 302. send V. Wathen, 9 East, 277. 
 
 2 Waite V. Northeastern Ry. Co., « Wharton on Neg., § 312; Thomp. 
 El., Bl. & El , 719. on Neg., 1184, § 34 et seq. 
 
§ 42.] OF THIRD PERSONS. 1 33 
 
 in courts of justice to our infant children than to dogs, 
 and oysters and asses. With respect to the reasoning of 
 Mr. Justice Cowen in that case, it may be said, (a.) that 
 whether the distinction made between slight negligence, 
 and gross negligence, and voluntary injury has any foun- 
 dation in principle is, to say the least, doubtful.^ A per- 
 son, generally, in exercising his own rights, must take due 
 care not to interfere with the rights of others. What is 
 due care depends, in any given instance, upon the partic- 
 ular circumstances of the case. If a person does not use 
 due care, that is, the care requisite under the circum- 
 stances, he then is guilty of negligence in the legal signi- 
 fication of the word. Whether his conduct be called 
 simply negligence, or be alluded to with tenderness as 
 slight negligence, or be spoken of vituperatively as gross 
 negligence, his liability is the same. Neither is there 
 generally a distinction, except perhaps in the form of ac- 
 tion, between the negligent and the wilful infliction of an 
 injury. 
 
 (^.) A second objection to the defense in question 
 may be drawn from its novelty. That an action is of 
 first impression is regarded as a weighty argument against 
 it, but that a defense has been for the first time taken in 
 a class of actions where, if valid, there must have been 
 many previous opportunities for setting it up, is consid- 
 ered a very weighty, and all but conclusive objection to 
 its validity.* 
 
 (^.) A third objection lies to the false assumption as 
 to the legal status of an infant. It is not true that an 
 infant is not sui juris. In the sense of being entitled to 
 maintain an action for his own benefit he is sui juris. 
 As far as his right of action is concerned he is in no re- 
 
 > Grill V. General, &c., Collier Co., 28 Vt. 185 ; Steamboat New World v. 
 L. R. I C. P. 600; Briggs V. Taylor, King, 16 How. (U. S.) 474. 
 
 * Co. Litt. 81 b., 379 b. 
 
134 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 42. 
 
 spect the chattel of his father. At common law he was 
 required to sue by guardian. By Stats. Westm., I. c, 48, 
 and Westm., II. c, 15, he was authorized to sue by pro- 
 chein ami. But in theory of law both guardian and/r^- 
 chein ami are appointed by the court. They are at all 
 times subject to the control of the court, and are its offi- 
 cers. To protect the interests of the minor is the com- 
 mon law duty of the court. The judgment, if any is 
 recovered, is the property of the minor ; it is recovered to 
 his sole use. It is an entirely false assumption, in Hart- 
 field V. Roper, that the parent or guardian may recover 
 " heavy verdicts for their own misconduct." Again, it is 
 assumed in that opinion, that an infant, injured by the 
 joint negligence of his parent and a third person, can have 
 legal redress against his parent. " It is much more fit," 
 says the court, " that he should look for redress to that 
 guardian." If this be so, if the right of the infant be so 
 distinct from the duty of the parent, that the relation of 
 parent and child is not an objection to the maintenance 
 of such a suit, then the whole theory upon which this 
 class of cases rests falls to the ground. 
 
 (flf.) Again it is falsely assumed that the parent is the 
 agent of the child. " Agency is founded upon a contract 
 either express or implied, by which one of the parties 
 confides to the other the management of some business 
 to be transacted in his name or on his own account, and 
 by which the other assumes to do the business and to 
 render an account of it." ^ The relation of child and par- 
 ent is not the relation of principal and agent, neither is 
 it analogous to it. The child does not appoint his father ; 
 he has no control over his acts ; he cannot remove him 
 from power, or appoint another in his stead ; he has no 
 right of action against him ; every element of agency is 
 
 • 2 Kent's Com. 612. 
 
§ 42.] OF THIRD PERSONS. 1 35 
 
 wanting. The want of any one of these elements is suf- 
 ficient to prevent the acts or omissions of the parent from 
 being viewed as the acts or omissions of the child upon 
 any analogy to be drawn from the law of agency. By 
 the common law, a child cannot appoint an agent. The 
 authority by which the parent exercises control over the 
 child is, therefore, an authority derived from the law. It 
 is a principle of law, laid down before " the spacious days 
 of great Elizabeth," that the abuse of an authority derived 
 from the law shall not work harm to, or prejudice the 
 rights of the person subjected to it.^ The parents author- 
 ity is given for the protection of the child, but the prin- 
 ciple of Hartfield v. Roper turns the shield into a sword, 
 and uses it to deprive the child of the very protection 
 arising from the parental relation. 
 
 (^.) Again the negligence which will bar the plaint- 
 iff 's recovery must be negligence which contributes to 
 the injury. But the negligence of a parent in suffering 
 his child to be exposed to danger, is not negligence which 
 can be said in any legal sense to contribute to the injury. 
 Even if such negligence be therefore imputed to the in- 
 fant plaintiff it cannot bar his recovery.^ 
 
 The doctrine of Hartfield v. Roper, not being based 
 upon authority, must be judged by the reasoning by which 
 it can be supported. The reasoning is founded upon false 
 assumptions that there are varying degrees of negligence, 
 and corresponding degrees of liability ; that the judgment 
 recovered, belongs not to the child but to the parent ; that 
 there is no duty upon the court to protect the child ; that 
 the parent is the child's agent ; that the child has an ade- 
 
 1 The Six Carpenters' Case, 8 Rep. 546 ; Tuff z/. Warman, 2 C. B. (N. S.) 
 146; s. C. Smith's Leading Cases, 739; S. C. 5 Id. 573; Mayor of Col- 
 Eighth Am. Edition of 1885, Vol. I. Chester v. Brooke, 7 Q. B. 339: Town- 
 page 257. send V. Wathen, 9 East, 277. 
 
 2 Davies v. Mann., 10 Mee. & W. 
 
136 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 43. 
 
 quate remedy against his parent, and that such negligence 
 is contributory negligence.^ 
 
 § 43. The rule in Hartfield v. Roper, denied. — ^The 
 rule which imputes the negligence of parents and custo- 
 dians to persons non sui juris, is deitied in many of the 
 States of the Union. A leading case, repudiating the 
 rule of Hartfield v. Roper, is Robinson v. Cone, decided 
 by the Supreme Court of Vermont, in 1850.^ In this , 
 case, the plaintiff, a boy less than four years of age, at- 
 tending a school in the country, as he returned home 
 from school, amused himself by sliding down hill on his 
 sled, and, while engaging in his sport, as he lay on his 
 breast upon the sled, with his legs hanging over the sled, 
 was run down by the two-horse sleigh of the defendant 
 who drove down the hill upon a smart trot. Plaintiff's 
 injuries were serious. The court denied the doctrine of 
 imputed negligence, and held that, although a child of 
 tender years may be in the highway through the fault or 
 negligence of his parents, and so be improperly there, 
 yet, if he be injured through the negligence of the de- 
 fendant, he is not precluded from his redress ; all that is 
 required of an infant plaintiff in such a case, being that 
 he exercise care and prudence equal to his capacity. 
 
 The Supreme Court of Pennsylvania has shown no. 
 toleration of the doctrine of imputed negligence in these 
 cases. In an action on behalf of a child four years of 
 age, says that court : "To a child of plaintiff's years no 
 contributory negligence can be imputed, she is not pre- 
 cluded from recovery against one tort feasor, by showing 
 that others have borne a share in it." * And this rule 
 
 1 In the preparation of this section lished anonymously, but evidently 
 I have drawn freely from a very tren- from the pen of a Massachusetts law- 
 chant article, entitled "Contributory yer. 
 
 negligence on the part of an infant,'' ^7.1 Vt. 213; S. C. 54 Am. Dec. 
 
 in the " American Law Review," for 67. . 
 April, 1870 (Vol. IV. page 405), pub- ■' North Penn. R. R. Co. v. Ma- 
 
§ 44'] *Jf THIRD PERSONS. 1 37 
 
 which prevents the imputation of a parent's or custo- 
 dian's negligence or folly, to an infant, in an action 
 brought by it or in its behalf, is maintained in several 
 other States.^ 
 
 While on the one hand, in the States of New York, 
 Massachusetts, Maine, California, Minnesota, Maryland, 
 Indiana, Illinois, and Kansas,* the negligence or miscon- 
 duct of a parent or custodian is imputed to an infant 
 plaintiff, who brings an action for damages he has sus- 
 tained by reason of another's negligence, the better rule, 
 that in such an action, by or in behalf of an infant, the 
 negligence of parent or guardian is not to be so imputed, 
 prevails in Pennsylvania, Virginia, Vermont, Alabama, 
 Tennessee, Ohio, Connecticut, Missouri, Nebraska, and 
 Texas. 
 
 § 44. When the action is for the parents benefit. — 
 When an action for the negligent injury of an infant is 
 brought by the parent, or for the parent's own benefit, it is 
 very justly held that the contributory negligence of such 
 parent may be shown in bar of the action. This is only 
 one phase of the general rule of contributory negligence 
 to the effect that the plaintiff's own negligence is a de- 
 fense to his action. Its application to cases of this kind 
 
 honey, 57 Penn. St 187; s. C. 6 Phila. 455; Birgez/. Gardner, 19 Conn. 507: 
 
 242. Compare Pennsylvania R. R. Co. i)aley i/. Norwich, &c., R. R. Co., 26 
 
 V. Kelly, 31 Penn. St. 372; Rauch v. Id. 591 ; Bronson v. Southbury, 37 Id. 
 
 Lloyd, 31 Id. 358; Phila., &c., R. R. 199; Boland w. Missouri, &c., R. R. 
 
 Co. V. Spearen, 47 Id. 300; Smith v. Co., 36 Mo. 484; Stillson v. Hannibal, 
 
 O'Connor, 48 Id. 218; Glassey v. &c., R. R. Co., 67 Id. 671 ; Frick z'. 
 
 Hestonville, &c., R. R. Co., 57 Id. St. Louis, &c., R. R. Co., 75 Id. 542; 
 
 172; Kay z/. Penn. R. R. Co., 6$ Id. S. C 75 Id. 595; Huff v. Ames, 16 
 
 269; s. C. 3 Am. Rep.628; Phila.&c., Neb. 139; s. c. 49 -Am. Rep. 716; 
 
 R.R. Co. V. Long, 75 Id. 257; Whar- Whirley v. Whiteman, i Head, 610; 
 
 ton on Neg., >J 310, note. Galveston, &c., R. R. Co. v. Moore, 
 
 > Government St. R. R. Co. v. 59 Texas. 64 ; S. C. 46 Am. Rep. 265 ; 
 
 Hanlon, 53 Ala. 70; Bellefontaine, Texas, &c., R. R. Co. v. O'Donnell, 
 
 &c., R. R. Co. V. Snyder, 18 Ohio St. 58 Id. 27; Houston, &c., R R. Co. v. 
 
 399 ; Cleveland, &c., R. R. Co. v. Simpson, 60 Id. 103 ; Railroad Co. v. 
 
 Manson, 30 Ohio St. 451 ; Norfolk, Herbeck, 60 Id. 612. 
 
 &c., R. R. Co. V. Ormsby, 27 Gratt. * § 40, supra. 
 
138 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 44. 
 
 is well illustrated in the case of the Belief ontaine, &c., R. 
 R. Co. V. Snyder.^ In the earlier action, brought in the 
 name of the child, for injuries received by it through the 
 negligence of the employees of the railway company, the 
 contributory negligence of the parent, or of the person 
 to whom the parent had temporarily entrusted the child, 
 was held no bar to the action ; while in the second suit, 
 brought by the parent in his own name, and for his own 
 benefit, it was held that the action would not lie. The 
 negligence of his agent to whom he had entrusted the 
 child having contributed to cause the injury, and such 
 negligence being, in contemplation of law, the parent's 
 negligence, was held to bar the action. A great number 
 of authorities can be cited in support of this rule.^ 
 
 And so, in actions of this kind, by a parent, will the 
 child's contributory negligence defeat the claim, because 
 when a plaintiff derives his course of action from an injury 
 done to a third person, such plaintiff is justly chargeable 
 with the contributory negligence of the third person.* 
 " The father can recover onty under the same circum- 
 stances of prudence as would be required if the action 
 were on behalf of the boy."* This rule is applicable to 
 
 1 18 Ohio St 399; S. c. 24 Id. 670. Co., 41 Iowa, 71; Albertson v. Keo- 
 
 2Sinith7/.Hestonville,&c.,R.R.Co., kuk, &c., R. R. Co., 48 Iowa, 492; 
 
 92Penn.St.45o;S.C. 37 Am. Rep. 705; MTright v. Maiden, &c., R. R. Co., 4 
 
 Penn. R. R. Co. v. Bock, 93 Id. 427; Allen, 283; Pittsburgh, &c., R. R. Co. 
 
 Id. V. James, 81 Id. 194; Phila., &c., v. Vinings' Admr., 27 Ind. 573; Chi- 
 
 R. R. Co. -v. Long, 75 Id. 257; Pitts- cago v. Major, 18 111. 349; Louisville, 
 
 burgh, &c., R. R. Co. v. Pearson, 72 &c., Canal Co. v. Murphy, 9 Bush. 
 
 Id. 169; Kay 7/. Penn. R. R. Co., 65 Id. 522. 
 
 269; S. C. 3 Am. Rep. 628 ; Glassey v. « Chicago, &c., R. R. Co. v. Har- 
 
 Hestonville, &c., R. R. Co., 57 Id. 172 ; ney, 28 Ind 28 ; Gilligan v. New York, 
 
 Penn. R. R. Co. v. Zebe, 33 Id. 318; &c., R. R. Co., i E. D. Smith, 453; 
 
 S. C. 37 Id. 420; Williams v. Texas, Kennard v. Burton, 25 Me. 39; S. C. 
 
 &c., R. R. Co., 60 Texas, 205; Isabel 43 Am. Dec. 249; Burke v. Broad- 
 
 V. Hannibal, &c.. R. R. Co., 60 Mo. way, &c., R. R. Co., 34 How. Pr. 239; 
 
 475; Koons V. St. Louis, &c., R. R. s. C. 49 Barb. 529; Fitzgerald 7/. St. 
 
 Co., 65 Id. 592; O'Flaherty w. Union, Pool, &c., R. R. Co., 29 Minn. 336; 
 
 &c., R. R. Co., 45 Id. 70; Daley w. s. C. 43 Am. Rep. 212. 
 Norwich, &c., R. R. Co., 26 Conn. * Burke v. Broadway, &c., R. R. 
 
 591 ; Birmingham v. Dorer, 3 Brews. Co., supra. 
 69; Walters v. Chicago, &c., R. R. 
 
§ 45-] OF THIRD PERSONS. 1 39 
 
 actions under Lord Campbell's act,^ and the statutes in 
 this country which authorize actions for personal injuries 
 resulting in death. It is accordingly held in suits brought 
 under statutes of this kind, that any contributory negli- 
 gence which might have barred a recovery by the de- 
 ceased, had he survived, in an action brought by him for 
 his injuries, is a defense in the action for the benefit of 
 the next of kin.^ 
 
 § 45. The rule modified by reason of the plaintiff'' s 
 poverty or destitution. — In courts which repudiate the 
 harsh rule in Hartfield v. Roper, an infant plaintiff, as we 
 have seen, is not prejudiced in his action by an imputa- 
 tion to him of his parent's neglect. In some States we 
 find it held, as a refinement even upon this rule, that it 
 may be a matter to go to the jury, in case the parent is 
 poor, and destitute of means for safely restraining his 
 child, whether or not proper, or ordinary, care was dis- 
 played ; the question being, whether the parent has exer- 
 cised reasonable care of his child, the jury may take 
 account of his lack of means in determining it.® 
 
 Mr. Justice Sharswood says, in Pittsburgh, &c., R. R. 
 Co. V. Pearson : * " The only question raised by these 
 assignments of error which it is deemed necessary to 
 
 1 9 and 10 Vict. Chap. 93. vision applying to the negligence of 
 
 2 Thorogood v. Bryan, 8C. B. 115; the deceased. Lofton v. Vogles, 17 
 Tucker v. Chaplin, 2 Car. & Kir. 730; Ind. 105 [2 Stat, of Indiana (1876) 44, 
 Witherley w. Regent's Canal Co.. 12 §27]; Penn. R. R. Co. w. Lewis, 79 
 C. B. (N. S.) 2; s. C. 6 L. T. (N. S.) Penn. St. 33 [Laws of Penn. (1855) c. 
 255: 3 Fost. & Fin. 61; Button v. 323]; Rowland i'. Cannon, 35 Ga. 105 
 Hudson River R. R. Co., 18 N. Y. [Code of Georgia (1873) § 2971]. See, 
 248; Wilds V. Hudson River R. R. also, Walters w. Chicago, &c., R. R. 
 Co., 24 Id. 430; s. C. 29 N. Y. 315; Co., 41 Iowa, 71 [Laws of Iowa (i860) 
 33 Barb. 503; Lehman v. Brooklyn. §411.] 
 
 29 Barb. 234; Chicago v. Major, 18 ' Isabel v. Hannibal, &c., R. R. 
 111. 349; Chicago z/. Starr's Admr., 42 Co., 60 Mo. 475, 483; Walters v. 
 Id. 174; Boland v. Missouri, &c., R. Chicago, &c., R. R. Co., 41 Iowa, ^\ \ 
 R. Co., 36 Mo. 484 : Ewen w. Chicago, Pittsburgh, &c., R. R. Co. v. Pear- 
 Ac, R. R. Co., 38 Wis. 613. This son. 72 Penn. St. 169; Phila., &c., 
 defense is also valid in those States R. R. Co. v. Long, 75 Id. 257. 
 where the statute contains no pro- * Supra. 
 
140 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 45. 
 
 discuss, is whether, under the evidence, the plaintiffs 
 below — the parents of the child who was run over and 
 killed by the railroad car of the defendants — were guilty 
 of culpable negligence in permitting him to run abroad 
 in the street without a competent protector. It was 
 undoubtedly, settled very properly in Glassey v. Heston- 
 ville Passenger Railway Co., 7 P. F. Smith, 172, that, if 
 the parents permit a child of tender years to run at large 
 without a protector in a city traversed constantly by cars 
 and other vehicles, they fail in the performance of their 
 duties, and are guilty of such negligence as precludes 
 them from a recovery of damages for any injury resulting 
 therefrom. If the case is barely such, the negligence is a 
 conclusion of law, and ought not to be submitted to the 
 determination of the jury. But in this case there was 
 evidence that the child was not permitted to run at large 
 without a protector, and it was a question for the jury 
 whether the accident was to be attributed to the negli- 
 gence of the parents. These' parents were careful parents. 
 A board at the door prevented the child from leaving 
 the house of his own accord. When abroad he was in 
 charge of an older sister, between twelve and thirteen 
 years of age. It so happened, however, that the board 
 was removed temporarily for the purpose of scrubbing 
 the floor. The child watched his opportunity and escaped. 
 He was immediately missed, and his brother at once sent 
 after him. He returned and said that he was playing in 
 the alley with Lizzie Orr, a little girl of the neighbor- 
 hood, between seven and eight years of age, who was in 
 the habit of playing with him. The parents were satis- 
 fied that he was safe with her. In the caprice of child- 
 hood the little boy ran away from her down the alley to 
 Rebecca street, where the railway was, ran across the 
 track, and in the course of a very few minutes was run 
 over. Now, whether Lizzie Orr was a competent pro- 
 
§ 45- J <^F THIRD PERSONS. I4I 
 
 tector, whether the parents ought to have been satisfied 
 when informed that he was with her, were questions for 
 the jury. Children of that age — more especially girls — 
 are often sufficiently prudent and thoughtful to be 
 intrusted with the care of young children. Persons in 
 the condition of life of these parents cannot afford to 
 employ servants to look after their children. Their 
 necessary domestic duties prevent them from being con- 
 stantly on the watch themselves. We agree that ' to say 
 it is negligence to permit a child to go out and play 
 without it is accompanied by a grown attendant, would 
 be to hold that free air and exercise should only be en- 
 joyed by the wealthy, who are able to employ such 
 attendants, and would amount to a denial of these bless- 
 ings to the poor.' O'Flaherty v. Union R. R. Co., 45 
 Mo. 70. Mr. Justice Agnew has made a similar observa- 
 tion in Kay v. The Pennsylvania R. R. Co., 15 P F. 
 Smith (65 Penn. St.), 277: ' Here, a mother toiling for 
 daily bread, and having done the best she could in the 
 midst of her necessary employment, loses sight of her 
 child for an instant, and it strays upon the track. With 
 no means to provide a servant for her child, why should 
 the necessities of her position in life attach to the child 
 and cover it with blame ? ' That, indeed, was an action 
 by the child in which the negligence of the parent would, 
 perhaps, be no defense, but we may ask with equal pro- 
 priety why should the necessities of the parents' position 
 cover them with blame if they have done all in their 
 circumstances they could do ? " 
 
 Again, in Phila., &c., R. R. Co. v. Long,^ the case of 
 a child of humble parents run over in the street, the 
 court, Agnew, J., says: "In that part of the charge 
 recited in the fourth assignment the judge said, ' that the 
 
 1 75 Penn. St. 257. 
 
142 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 45. 
 
 fact that the child is found in the street affords a strong^ 
 presumption of negligence on the part of the plaintiffs. 
 You will, therefore, consider whether the mother took 
 reasonable care of the child ; if she did not, it was negli- 
 gence.' To suflFer a child to wander on the street has the 
 sense of permit. If such permission or sufferance exist, 
 it is negligence. This is the assertion of a principle. 
 But whether the mother did suffer the child so to wander 
 is a matter of fact, and is the subject of evidence, and 
 this must depend upon the care she took of her child. 
 Such care must be reasonable care, dependent upon the 
 circumstances. This is a fact for the jury. If she did 
 not exercise this care, she was negligent. What more 
 than this care can be demanded of her ? When a railroad 
 runs through a populous city, has the company a right to 
 exact a harder measure, and are we to say, as a matter of 
 law, that the citizens are to be imprisoned in their houses, 
 or their children caged like birds, otherwise it is negli- 
 gence ? Is it negligence for the poor who congregate 
 these crowded streets unless, even in the summer's heat, 
 they live shut up in the noisome vapors of their closed 
 tenements without a breath of healthy air ? Is this the 
 life they must lead, or be adjudged to be negligent ? 
 This mother gave her child a piece of bread to satisfy it, 
 closed the kitchen door to keep it in, and went to the 
 next room to scrub the oil cloth on the floor, and before 
 her labor was finished, and in less than five minutes, the 
 mangled body of her little one was brought in and laid 
 before her. We have no reason to believe that her love 
 for her child was less than that of the more favored of 
 her sex, having servants at their beck. Because the child 
 managed to lift the latch and momentarily disappeared, 
 are we to say that this was negligence per se, and that 
 she suffered her child to wander into the street ? What 
 sort of justice is that which tells the mother agonizing 
 
§ 45-] OF THIRD PERSONS. I43 
 
 over her dying child : ' Your negligence caused this. 
 You suffered your child to run into the jaws of death. 
 We cannot perceive any fault in the railroad company. 
 A speed of eight miles an hour along this populous thor- 
 oughfare was all right.' We can endorse no such cruel 
 doctrine, but we must say, as was said in Kay v. Railroad 
 Co.,* the doctrine which imputes negligence to a parent 
 in such a case is repulsive to our natural instincts, and 
 repugnant 1p the condition of that class of persons who 
 have to maintain life by daily toil." 
 
 This argument satisfies at once the sense of justice 
 and the instincts of humanity. Unless the rights of the 
 poor are to be carelessly sacrificed to the rapacity of the 
 rich, account must be taken in such actions as these, of 
 the pecuniary condition of the plaintiff, in determining 
 whether or not due care has been exercised. Most of the 
 families living in the large cities are poor, and unable to 
 employ assistance in taking care of their children. Often 
 both parents'' labor is required away from home, to pro- 
 cure the food necessary for the family. Children are 
 crowded together in the ill-ventilated rooms of tenement 
 houses. A child cannot live if constantly confined in 
 that manner. The children of the poor can have no 
 place of resort but the streets. If one of these children 
 is injured in its helplessness, it by no means follows that 
 either the child or its parents have neglected any duty. 
 If it is injured by accident, all that can be done is to pity 
 those whose poverty exposes them to such accidents ; but, 
 if it is injured by the negligence of others, not only ought 
 it to have the same measure of justice to which every one 
 is entitled who brings an action in court, but also when 
 its parents are needy, that circumstance ought to be duly 
 considered by the court in reaching a conclusion upon 
 
 1 65 Penn. St. 276. 
 
144 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 46. 
 
 the question of negligence. Poverty, in these cases, ought 
 to be, however, only a shield, and never a sword. The 
 destitution of the parent is not a license to the child to 
 act recklessly. But is there any principle of law by 
 which in this class of actions children are excepted out of 
 the rule applicable to all other plaintiffs, and on account 
 of their own weakness, and their parents poverty, are 
 made to bear an additional burden ? Is there any principle 
 upon which it can be held that they must establish not 
 only their own due care, but the due care of another per- 
 son over whom they have no control, measured by a 
 standard beyond that other person's power to attain .? 
 
 § 46. Ordinary care in a child. — An infant plaintiff, 
 who, on the one hand, is not so young as to escape en- 
 tirely all legal accountability, and on the other hand, is 
 not so mature as to be held to the responsibility of an 
 adult, is, of course, in cases involving the question of 
 negligence, to be held responsible for ordinary care, and 
 ordinary care must mean, in this connection, that degree 
 of care and prudence which may reasonably be expected 
 of a child.^ In Lynch v. Smith * the court says : " If 
 the jury find that the plaintiff was of such capacity that 
 he was in the street without negligence, either on the 
 part of himself or his parents, then the question arises, 
 what degree of care he was bound to exercise. In Mul- 
 ligan V. Curtis, 100 Mass. 512, it was held to be a ques- 
 tion for the jury, whether a boy three and a half years old 
 might not without negligence be trusted to go across tfce 
 street, accompanied by his brother nine years old. Cer- 
 tainly the jury could not find that a boy nine years old 
 must exercise the capacity of an adult. But it was im- 
 
 ' Lynch v. Nurdin. i Q. B. 29; 66 Penn. St. 345; Robinson v. Cone, 
 Railroad Company v. Stout, 17 Wall. 22 Vt. 213; s. C. 54 Am. Dec. 67. 
 657; S. C. 2 Dill. 294; Gray v. Scott, ^ 104 Mass. 52; s. c. 6 Am. Rep. 
 
 188. 
 
§47-] OF THIRD PERSONS. 1 45 
 
 plied that, if it was proper for him to be there, it was only 
 necessary for him to exercise such capacity as he had. 
 School children who are properly sent to school unat- 
 tended, must use such reasonable care as school children 
 can. It must be reasonable care, adapted to the circum- 
 stances or, in other words, the ordinary care of school 
 children. ... If the child, without being able to ex- 
 ercise any judgment in regard to the matter, yet does no 
 act which prudence would forbid, and omits no act that 
 prudence would dictate, there has been no negligence 
 which was directly contributory to the injury." 
 
 In Munn v. Reed,^ where the infant had been bitten 
 while playing with a dog, it was held that if the child had 
 been attacked by the dog while using such care as is usual 
 with children of its age, the action might be maintained. 
 The decisions enforcing this rule that children are to be 
 held responsible only for such a degree of care as may 
 reasonably be expected of them, taking due account of 
 their age and the particular circumstances of each case, 
 are very numerous.^ 
 
 § 47. Children as trespassers. — Lynch v. Nurdin,* 
 is the leading English case upon this subject. The cir- 
 cumstances of the case were these : Negligence on the part 
 of the defendant's servant, tempting the plaintiff to mis- 
 chief ; a technical trespass by the infant, a child, capable 
 of only a small measure of care for its own safety; con- 
 
 1 4 Allen, 431. Rep. 377; Byrne v. N. Y., &c., R. R. 
 
 2 Hicks V. Pacific. &c., R. R. Co., Co., 83 N. Y. 620; Houston, &c., R. 
 
 64 Mo. 430; Railroad Co. v. Glad- R. Co. v. Simpson, 60 Texas, 103; 
 mon, IS Wall. 401; Kay?/. Penn., &c., Galveston, &c., R. R. Co. v. Moore, 
 R. R. Co. 65 Penn. St. 269; S. C 3 59 Id. 64; s. C 46 Am. Rep. 265; 
 Am. Rep. 628; Manly v. Wilming- Plumley 2/. Birge, 124 Mass. 57; s. C. 
 ton, &c., R. R. Co., 74 N. C. 655; 26 Am. Rep. 645; Meibus w. Dodge, 
 Mobile, &c., R. R. Co. v. Crenshaw, 38 Wis. 300; s. C. 30 Id. 6. 
 
 65 Ala. 566; Barry v. N. Y , &c,, R. ' i Q. B. 29. 
 R. Co., 92 N. Y. 289; S. C. 44 Am. 
 
 10 
 
146 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 47. 
 
 duct by the plaintiff which in an adult would have been 
 negligence per se. The facts were these : Defendant's 
 cart being in charge of his cartman was driven into a 
 street where a number of children were playing ; the cart- 
 man left the horse and cart standing unattended before 
 the door of a house which he had entered ; the plaintiff, 
 a child under seven years of age, climbed upon the wheel 
 of the cart ; another boy led the horse a step or two for- 
 ward, the plaintiff fell off and was run over by the wheel, 
 and his leg was broken. The defendant was held liable, 
 although the plaintiff was a trespasser, and contributed to 
 the mischief by his own act. 
 
 The question of the negligence of the lad's parents, in 
 suffering him to be at large in the street unattended, was 
 not raised, and this case is therefore no authority upon this 
 point, though it is often cited as though it were. Waite 
 V. Northeastern Ry, Co.^ should not be regarded as ques- 
 tioning it, for the two cases have nothing in common ; 
 but whether or not Hughes v. Macfie,^ and Mangan v. 
 Atterton,* are not to be regarded as shaking its authority 
 is a much more difficult question. The opinion of Pol- 
 lock, C. B., in the former case, if not expressly repudi- 
 ating, is wholly inconsistent with it. In that case two 
 children seven and five years of age respectively, playing 
 about and jumping on the covering of a bulkhead which 
 had been left tilted up against a wall upon a highway, were 
 injured by its falling upon them. The court says : " We 
 think the fact of the plaintiff being of tender years makes 
 no difference. His touching the flap was for no lawful 
 purpose. Had he been an adult, it is clear he could have 
 maintained no action. He would voluntarily have med- 
 dled, for no lawful purpose, with that, which if left alone 
 
 > El, Bl. & El 719. 3 L. R. I Exch. 239. 
 
 ^ 2 Hurl. & Colt, 744. 
 
§ 47-J OF THIRD PERSONS. 
 
 147 
 
 would not have hurt him. He would, therefore, at all 
 events, have contributed by his own negligence to his 
 damage. As far as the child's act is concerned, he had 
 no more right to touch this flap, for the purpose for 
 which he did touch it, than he would have had if it had 
 been inside the defendant's premises." ^ In Mangan v. At- 
 terton ^ the defendant exposed for sale, unfenced and un- 
 attended, a machine which might be set in motion by any 
 passer-by, an^ which when in motion was dangerous. 
 The plaintiff, a boy of four years old, by the direction of 
 of his brother, a boy of seven, put his fingers into the cogs 
 of the machine, while another boy was turning the handle, 
 whereby his hand was crushed. The defendant was 
 held not liable, on the ground that he was guilty of no 
 negligence in exposing his machine, and because the 
 plaintiff's own act had brought the injury upon himself. 
 The judge, in rendering the opinion, which was probably 
 right, assigned a reason which was certainly wrong. 
 " The defendant," says the court, " is no more liable than 
 if he had exposed goods coloured with a poisonous paint, 
 and the child had sucked them. It may seem a harsh 
 way of putting it, but suppose this machine had been of 
 a very delicate construction, and had been injured by the 
 child's fingers, would not the child, in spite of his tender 
 years, have been liable to an action as a tort feasors." * 
 
 Nothing worse than this, as a specimen of judicial 
 reasoning, can be found in the reports. These three com- 
 paratively recent cases seem to leave unsettled in Eng- 
 land the question whether a child of tender years, exer- 
 cising all the care that can be expected of him, but yet 
 yielding to a temptation in his play to commit a technical 
 
 > Hughes V. Macfie, 2 Hurl. & Colt, ^ l. R. i Exch. 239. 
 744. •'' Mangan v. Atterton, supra. 
 
148 IMPUTED CONTRIBUTORY NEGLIGENCE [§ 47, 
 
 trespass, may recover of a defendant for an injury caused 
 by his negligently exposing that which a child's natural 
 instinct may bring him in contact with to his hurt.^ 
 
 In this country the rule in Lynch v. Nurdin has been 
 very generally followed, both in the Federal and many 
 State courts. The leading case in the United States 
 reports is Railroad Co. v. Stout,® which went up from 
 Mr. Justice Dillon's Circuit.^ This is the turn-table case. 
 It holds a railroad company liable for an injury to an 
 infant caused by a turn-table, left unguarded and un- 
 locked, in a place likely to attract children, even though 
 upon the company's own ground.* 
 
 In the case of Birge v. Gardner® the facts are 
 essentially the same as in the English case of Hughes 
 V. Macfie,* but the Connecticut court sustains the au- 
 thority of Lynch v. Nurdin and reaches a conclusion 
 exactly contrary to that of its English counterpart.'' But 
 where a pile of lumber fell upon a child, in a lumber 
 yard, from some unknown cause, the defendants, who had 
 given orders to their watchman to exclude all children 
 from the yard, were held not liable.^ 
 
 Under different circumstances, however, the owners of 
 lumber piled upon and near the sidewalk of a public street 
 
 ' Clark V. Chambers, 3 Q. B. Div. 686; S. C. 31 Am. Rep. 203; Koons 
 
 327. In this case a contrary doctrine v. St. Louis, &c., R. R. Co., 65 Mo. 
 
 to the later English cases is laid down. 592 ; St. Louis, &c., R. R. Co. v. Bell, 
 
 It goes even farther than Lynch v. 81 111. 76; s. c. 25 Am. Rep. 269; 
 
 Nurdin. Birge w. Gardner, 19 Conn. 507; S. C. 
 
 2 17 Wall. 657. 50 Am. Dec. 261. And see a full dis- 
 
 * 2 Dillon, 294. cussion of " the turn-table cases " in 
 
 * Compare Kerrz/. Forgue, 54 111. the following chapter, § 70, infra. 
 482; S. c. 5 Am. Rep. 146; Chicago ° Supra. 
 
 V. Starr's Admr., 42 111. 174; Keffez/. « 2 Hurl. & Colt, 744. 
 Milwaukee, &c., R. R. Co., 21 Minn. ' Whirley v. Whiteraan, I Head, 
 
 207; S. C. 18 Am. Rep. 393; Nagel v. 610; MuUaney?/. Spence, 15 Abb. Pr. 
 
 Missouri, &c., R.R. Co., 75 Mo. 653; (N. S.), 319. Compare Meibus v. 
 
 s. c. 42 Am. Rep. 418; Evansich z/. Dodge, 38 Wis. 300; Hydraulic Works 
 
 Gulf, &c., R. R. Co., 57 Texas, 126; v. Orr, 83 Penn. St. 332. 
 s. C. 44 Am. Rep. 586; Kansas, &c., ' Vanderbeck v. Hendry, 34 N. J. 
 
 R. R. Co. 7/. Fitzsimmons, 22 Kan. Law, 467. 
 
§ 47-] OF THIRD PERSONS. 149 
 
 may be liable for damages to children from it, though it 
 was piled contrary to their order,^ The Massachusetts 
 court seems to follow the rule in Mangan v. Atterton ^ and 
 Hughes z>. Macfie* It is the only court in this country 
 that has not affirmed Lynch v. Nurdin.* Lane v. Atlantic 
 Works* was the case of an infant, seven years old, injured 
 while playing about a truck, standing in front of a found- 
 ry, loaded with a heavy casting, which, when the truck 
 was shaken or moved, rolled off and injured the plaintiff. 
 The defendant, owner of the foundry, was held not liable 
 upon essentially the grounds assumed in the English 
 cases.* 
 
 The position of the Supreme Judicial Court of MSs- 
 sachusetts, upon the general question of contributory 
 negligence, as well as upon that branch of it affecting 
 infant plaintiffs, is not a satisfactory one. It has taken 
 extreme ground upon almost every point.'' 
 
 ' Cosgrove v. Ogden, 49 N. Y. 255. ' " The law gives equal protection 
 
 See, also, as germane to this subject, to all, and requires, in turn, that each, 
 
 McAlpin V. Powell, 55 How. Prac. according to his capacity, shall pro- 
 
 163; S. C. 70 N. Y. 126. tect himself. A different requirement 
 
 * Supra. would place the weak at the mercy of 
 ' Supra. the strong, against whom they have a 
 ' Laiie V. Atlantic Works, 109 Mass. right to ask for protection. It is plain 
 
 104; S. C. 11 1 Id. 136. that, in the case of a foot passenger 
 
 » Supra. who is injured in the street by being 
 
 • See, also, Lyons v. Brookline, 1 19 run over, through the negligence of an- 
 Mass. 491 ; Wood v. School District, other, the negligence of the plaintiff is 
 44 Iowa, 27 ; Boland v. Missouri R. not to be measured, except by his ca- 
 ll., 36 Mo. 484. In this last case, pacity. Any other rule would deprive 
 Wagner, J., says: " If, therefore, any half mankind of the protection of the 
 one using dangerous instruments, run- law. Infants, lunatics and persons 
 ning machinery, or employing vehicles weak in body or mind are all civilly 
 which are peculiarly hazardous, knows responsible for the injury they inflict 
 that infants, idiots, or others who are upon others. When they become act- 
 bereft of, or have but imperfect discre- ive doers of injury, it may be, that to 
 tion, are in close or immediate proxim- protect the community, they are held 
 ity, he will be compelled to the exer- responsible for that prudent foresight 
 cise of a degree of caution, skill and which might be expected from a 
 diligence which would not be required strong and intelligent adult, and that 
 in cases of other persons." And see, no allowance is to be made for their 
 Gillespie v. McGowen, 100 Penn. St. want of strength, of skill, or of under- 
 144. standing. But where they are the 
 
ISO 
 
 IMPUTED CONTRIBUTORY NEGLIGENCE 
 
 [§48. 
 
 § 48. What ads and omissions on the part of parents 
 have been held contributory negligence. — If parents per- 
 mit a child of tender years to run at large, without a pro- 
 tector, in the streets of a city traversed constantly by cars 
 and other vehicles, they fail in the .performance of their 
 duties, and are guilty of such negligence as precludes 
 them from a recovery of damages for any injury resulting 
 therefrom ;^ but it is not negligence /^rj^ in a mother to 
 allow a boy twelve years of age to go from one car to 
 another of a train, upon which they are traveling, in 
 search of a seat,^ nor to permit children to play upon an 
 unfrequented street in the absence of any circumstance to 
 r^der it dangerous ; * nor to allow^ small children to go to 
 and fro from school without attendance ; * nor to send 
 children of errands in the street under ordinary circum- 
 
 victims of wrong, there is no rule of 
 law which makes the afflicted of Prov- 
 idence outlaws in court. An old per- 
 son is not required to avoid danger 
 with the activity of youth, or a wo- 
 man to ward off peril with the strength 
 of a man. Sometimes blind men 
 Wcilk the streets. Their necessities 
 compel them to do so. They have a 
 legal right in the highway, but from 
 their infirmity they are more exposed 
 to accidents than other men are. 
 For accidental injuries there is no 
 redress. If a blind man is run over 
 by a vehicle, the fact that the driver 
 was ignorant of the man's infirmity 
 is to be considered in determining the 
 question of the driver's negligence. 
 Yet, when that negligence is estab- 
 lished, it is very unreasonable to say 
 that the fact that impaired vision 
 might perhaps have enabled the blind 
 man to escape the peril is an answer 
 to the action. If the law does not 
 require, under such circumstances, 
 sight from the blind nor strength from 
 the weak, neither shouM it under the 
 same circumstances require from a 
 child more forethought than it pos- 
 
 sesses. It should not require, as the 
 Massachusetts cases do require, that 
 the child of a foolish man should have 
 a prudent father." IV. Am. Law 
 Rev. 405, April, 1870, an essay 
 which arraigns the Massachusetts 
 courts upon this point almost sav- 
 agely. 
 
 * Glassey v. Hestonville Passenger 
 R. R., 57 Penn. St. 172. 
 
 2 Downs V. N. Y., &c., R. R. Co., 
 47 N. Y. 83. 
 
 ' Karr v. Parks, 40 Cal. 188 ; Man- 
 gam V. Brooklyn, &c., R. R. Co., 38 
 N. Y. 455; Jetter v. New York, &c., 
 R. R. Co., 2 Keyes. 154; O'Flaherty 
 V. Union R. R. Co., 45 Mo. 70 ; Mc- 
 Gary v. Loomis, 63 N. Y. 104; s. C. 
 20 Am. Rep. 510; Cosgrove v. Og- 
 den, 49 Id. 255; Oldfield v. Harlem, 
 &c., R. R. Co., 14 N. Y. 310; Schier- 
 hold V. North Beach, &c., R. R. Co., 
 40 Cal. 447. 
 
 * Drew V. Sixth Ave. R. R. Co., 26 
 N. Y. 49; Lynch v. Smith, 104 Mass. 
 S3 ; s. C. 6 Am. Rep. 188; Ihl. v. For- 
 ty-second St. R. R. Co., 47 N. Y. 317; 
 S. C. 7 Am. Rep. 450. 
 
48.] 
 
 OF THIRD PERSONS. 
 
 151 
 
 Stances.^ But to allow a child to engage in a dangerous 
 occupation is negligence.* 
 
 * East Saginaw City R. R. Co. v. 
 Bohn, 27 Mich. 503; Bellefontaine, 
 &c., R. R. Co. V. Snyder, 18 Ohio 
 St. 399 ; McMahon v. Northern, &c., 
 R. R. Co., 39 Md. 438; Mulligan v. 
 Curtis, 100 Mass. 512. 
 
 8 Smith V. Hestonville, &c., R. R. 
 Co., 92 Penn. St. 450. See, also. Con- 
 ley V. Pittsburgh, &c., R. R. Co., 95 
 Penn. St. 398 ; s. C. 98 Id. 498 ; Gavin 
 V. City of Chicago, 97 111 66 ; Morgan 
 V. Bridge Co.. 5 Dillon, 96 ; Penn. R. 
 R. Co. V. Bock, 93 Penn. St. 427. Pa- 
 
 rents are not obliged to restrain their 
 children within doors at their peril. 
 Mangam v. Brooklyn, &c., R. R. Co., 
 38 N. Y. 455; MuUaney v. Spence, 15 
 Abb. Pr. (N. S.), 319; McGary v. 
 Loomis, 63 N. Y. 104 ; S. C. 20 Am. 
 Rep. 510; Cosgrove v. Ogden, 49 N. 
 Y. 255 ; Fallon v. Central Park, 64 Id. 
 13; Lovett V. Salem, &c., R. R. Co., 
 9 Allen, 557 ; BarksduU v. New Or- 
 leans, &c., R. R. Co., 23 La. Ann. 
 180; Munn V. Reed, 4 AUen, 431. 
 
CHAPTER V. 
 
 THE RULE AS AFFECTING RAILWAY CORPORATIONS. 
 
 S49- 
 
 Contributory negligence as a de- 
 fense to actions brought against 
 railway companies. 
 
 (A.) As to Passengers. 
 
 50. Duty of a public carrier to passen- 
 
 gers. 
 
 51. The reciprocal duty of the pas- 
 
 senger. 
 
 52. Boarding moving trains. 
 
 53. Alighting from moving trains. 
 
 54. Standing or riding on platforms. 
 
 55. Riding in baggage cars, on loco- 
 
 motives or in other unauthorized 
 positions or places. 
 
 56. Injuries at car windows and doors. 
 
 57. Injuries at and about railway sta- 
 
 tions. 
 
 58. Injuries to free passengers. 
 
 59. Carrier's liability limited by con- 
 
 tract. 
 
 60. Passenger's negligence as to bag- 
 
 gage. 
 
 61. Traveling on Sunday. 
 
 (B.) As to Strangers. 
 
 62. Duty of a public carrier to per- 
 
 sons lawfully upon its premises 
 but who are neither passengers 
 nor employees. 
 
 63. Duty of the public at railway 
 
 crossings. 
 
 64. Duty of the railway company at 
 
 crossings. 
 
 65. When the view at the crossing is 
 
 obstructed. 
 
 66. Plaintiff deaf or intoxicated. 
 
 67. Trespassers on a railway track — 
 
 the Pennsylvania rule, 
 
 68. The modified rule as to trespas- 
 
 sers. 
 
 69. Children as trespassers on railroad 
 
 property. 
 
 70. The turn-table cases. 
 
 71 Walking upon railway tracks. 
 
 72. Various other acts of trespass upon 
 
 railway property. 
 
 73. Injuries to domestic animals tres- 
 
 passing on railway tracks. 
 
 74. Duty of a railway company to 
 
 maintain fences. 
 
 75. Negligent communication of fire. 
 
 § 49. Contributory negligence as a defense to ^ ac- 
 tions brought against railway companies. — In this chap- 
 ter it is proposed to consider contributory negligence as 
 a defense in actions brought against railway companies 
 {a) by passengers and {b) by strangers. The term pas- 
 sengers will include not only regular passengers for hire,^ 
 but free passengers, intended passengers, and those 
 classes of persons transported which may be known as 
 quasi passengers ; and by the term strangers is meant all 
 persons who bring actions against railway companies 
 who are not, on the one hand, passengers, or on the 
 
§ 50.] RULE AFFECTING RAILWAY CORPORATIONS. 1 53 
 
 Other, employees. The law of contributory negligence, 
 from one point of view, is scarcely more than a branch 
 of the law of railways. A very large proportion of 
 the cases in which the plea of contributory negli- 
 gence is made in defense are actions against these 
 corporations. In addition to the two classes of plaint- 
 iffs in such actions, already referred to, we find em- 
 plo.yees of the railroads bringing a great number of 
 suits in which this defense is urged — and within these 
 three classes passengers, strangers, and employees, may 
 be included all the actions, a consideration of which as 
 concerning railways, is pertinent to this treatise. In the 
 chapter upon master and servant,^ is found a full discus- 
 sion of the law affecting actions by railway employees. 
 It therefore remains, herein, to treat of contributory neg- 
 ligence as a defence in actions by plaintiffs of the two 
 former classes — and, first, of passengers. 
 
 (A.) As TO Passengers. 
 
 § 50. Duty of a public carrier to passengers. — A car- 
 rier of passengers, unlike a carrier of goods at common 
 law, is not an insurer. He is not held to warrant abso- 
 lutely the safety of his passengers.* But while the passen- 
 ger. as.sumes all the ordinary risks incident to the car- 
 riage,^ it is the settled rule, both here and in England, 
 that the carrier must exercise the highest possible degree 
 of care, diligence, vigilance and skill both in the selec- 
 tion, construction and repair of his vehicles, and in the 
 conduct and management of them, in every particular, 
 
 * Chap. VII, z«/ra, {T. ». Rep. 228; 2 Redfield on Railways 
 
 * Peters v. Rylands, 20 Penn. St. (5th ed.), 216; Angell on Carriers, 
 497; s, C. 59 Am. Dec. 746; Ingalls § 570; Story on Bailments, § 601; 
 V. Bills, 9 Mete, i ; S. C. 43 Am. Dec. Thompson on Carriers, 200. 
 
 346, and the note ; Galena, &c., R. R. ' Galena, &c., R. R. Co. v. Fay, su- 
 
 Co. V. Fay, 16 lU. 558; S. C. 63 Am. pra ; Chicago, &c., R. R. Co. v. Haz- 
 
 Dec. 323 ; Carroll v. Staten Island R. zard, 26 111. 381. 
 R. Co., 58 N. Y. 138; S. C. 17 Am. 
 
154 RULE AFFECTING RAILWAY CORPORATIONS. [§ 50. 
 
 with a view to the safety of his passengers and their bag- 
 gage. For the slightest negligence or carelessness in 
 these respects the carrier is liable.^ This measure of care- 
 fulness must be exercised alike toward all classes of pas- 
 sengers. It is a duty to be discharged not only toward 
 regular passengers for hire, but also as to free passen- 
 gers,* intended passengers,* and that class which may be 
 inown as quasi passengers.* 
 
 1 Ford V. London, &c., Ry. Co., 
 3 Fost. & Fin. 730; Readhead v. 
 Midland Ry. Co., L. R. 2 Q. B. 412; 
 S. C. L. R. 4 Q. B. 379 ; Stokes v. 
 Saltonstall, 13 Peters, 181 ; Philadel- 
 phia R. R. Co. V. Derby, 14 How. 
 (U. S.) 468 ; Pennsylvania R. R. Co. 
 V. Ray, 102 U. S. 451 ; Baltimore, &c., 
 R. R. Co. V. Wightraan, 29 Gratt. 
 431 ; S. C. 26 Am. Rep. 384; Parish 
 ^. Reigle, 1 1 Gratt. 697 ; S. C. 62 Am. 
 Dec. 666; Taylor v. Grand Trunk 
 Ry. Co., 48 N. H. 304; S. C. 2 Am. 
 Rep. 229; Laing v. Colder, 8 Penn. 
 St. 479; S. C. 49 Am. Dec. 533; Mc- 
 Elroy V. Nashua, &c., R. R. Co., 4 
 Cush. 400; Union Paciific R. R. Co. 
 ■V. Hand, 7 Kan. 380; Simmons v. 
 New Bedford, &c., R. R. Co., 97 
 Mass. 368; Keokuk Packet Co. v. 
 True, 88 111. 608 ; Philadelphia, &c., 
 R. R, Co. V. Boyer, 97 Penn. St. 91 ; 
 Xemon 7/. Chanslor, 68 Mo. 340 ; s. C. 
 30 Am. Rep. 799, and the citations 
 generally, supra. 
 
 " Philadelphia, &c., R. R. Co. v. 
 Derby, 14 How. (U. S.) 468 ; Indian- 
 apolis, &c., R. R. Co. V. Horst, 93 U. S. 
 391 ; Steamboat New World v. King, 
 16 How. (U. S.) 469; Jacobus v. St. 
 Paul, &c., R. R. Co., 20 Minn. 125 ; 
 S. C. 18 Am. Rep. 360; Brennan v. 
 Fairhaven, &c.,' R. R. Co., 45 Conn. 
 -284; s. C. 29 Am. Rep. 679; Water- 
 bury V. New York, &c., R. R. Co., 21 
 Blatchf. 314; Todd v. Old Colony, 
 &c., R. R. Co.. 3 Allen, 18; Lemon 
 V. Chanslor, 68 Mo. 340 ; s. C. 30 Am. 
 Rep. 799. Compare Kinney v. Cen- 
 tral R. R. Co., 34 N. J. Law, 513 ; s. c. 
 3 Am. Rep. 265; Austin v. Great 
 Western, &c., Ry. Co., L, R. 2 Q. 
 
 B. 442; Angell on Carriers, § 528. 
 [But the rule is otherwise in the case 
 of baggage carried gratuitously, Flint, 
 &c., R. R. Co. V. Wier, 37 Mich, in ; 
 s. C. 26 Am. Rep. 499.] 
 
 ' Shephard v. Midland Ry. Co., 20 
 W. R. 705 ; Long[more v. Great West- 
 ern Ry. Co., 19 C. B. (N. S.) 183 ; S. C. 
 115 Eng. Com. L. 183; Burgess v. 
 Great Western Ry. Co., 6 C. B. (N. S.) 
 923; s. C. 95 Eng. Com. L. 923; Car- 
 penter V. Boston, &c., R. R. Co , 97 
 N. Y. 494; s. C. 49 Am. Rep. 540; 
 Weston V. Elevated Ry. Co., 73 Id. 
 59S ; McDonald v. Chicago, &c., R. R. 
 Co., 26 Iowa 124, by Dillon, C. J.; 
 Caswell V. Boston, &c., R. R. Co., 98 
 Mass. 194 ; Snow v. Fitchburg R, R. 
 Co., 136 Id. 552; s. C.4.9Am. Rep. 
 40. [Compare Wheelwright v. Bos- 
 ton, &c., R. R. Co., 13s Mass. 225.] 
 
 * £. g. Employees of express com- 
 panies riding on railway trains in the 
 line of their duty. Kentucky Central 
 R. R. Co. V. Thomas, 79 Ky. 160; S. 
 
 C. 42 Am. Rep. 208: Blair v. Erie 
 Ry. Co., 66 N. Y. 313; s. c. 23 Am. 
 Rep. 55; Yeomans v. Contra Costa, 
 &c., Co., 44 Cal. 71. [Mail agents 
 riding in postal cars. See, also, Rev. 
 Stat, of U. S., §§ 3997-4005.] Seybolt 
 V. New York, &c., R. R. Co., 95 N. Y- 
 562; s. C. 47 Am. Rep. 75; Ham- 
 mond V. Northeastern R. R. Co., 6 
 S. C. 130; s. c. 24 Am. Rep. 467. 
 Compare, for a contrary view, Penn- 
 sylvania R. R. Co. V. Price, 96 Penn. 
 St. 256. [Persons traveling on " drov- 
 ers' passes."] Lockwood v. New 
 York, &c., R. R. Co., 17 Wall. 357; 
 S. C. 10 Am. Rep. 366; Martin v. 
 Baltimore, &c., R. R. Co., 14 West 
 
§ 52.] RULE AFFECTING RAILWAY CORPORATIONS. 1 55 
 
 § 51. The reciprocal duty of the passenger. — This 
 duty on the part of the carrier is qualified by the recip- 
 rocal duty which is imposed upon the passenger. While 
 the carrier must exercise extraordinary, or great care and 
 diligence in taking care of his passenger, the passenger 
 must, on his part, exercise ordinary care and prudence in 
 taking care of himself.^ If the passenger's failure to 
 exercise ordinary care causes or contributes to the injury, 
 such a failure is, upon familiar grounds, a bar to his 
 action against the carrier. In the succeeding sections 
 the contributory negligence of a passenger, as affecting 
 his right to recover damages from a railway company, by 
 whose negligence he has suffered, is considered in detail. 
 The duty of a passenger in his dealings with a public 
 carrier to exercise ordinary care, as, under all circum- 
 stances, and in dealing with every other person, there is 
 imposed upon all men a duty to exercise ordinary care, 
 being assumed, we may take up in order various acts and 
 omissions on the part of a passenger held to be negligent, 
 to the extent of preventing a recovery when an action is 
 brought by a passenger against a railway company, for 
 personal injuries sustained through the company's negli- 
 gent default. 
 
 § 52. Boarding moving trains. — It is not contribu- 
 tory negligence, as matter of law, to attempt to get on to 
 a moving railway train.^ The circumstances may be such 
 
 Va. 180; S. C. 35 Am. Rep. 748; Lit- Rep. 301, and McCorkle v. Chicago, 
 
 tie Rock, &c., R. R. Co. v. Miles, 40 &c., R. R. Co., 61 Iowa, 555. 
 
 Ark. 298 ; S. C. 48 Am. Rep. 10; Ohio, For a consideration of the question 
 
 &c., R. R. Co. V. Selby, 47 Ind. 471 ; how far a common carrier of passen- 
 
 S. C. 17 Am. Rep. 719; Penn. R. R. gers may limit his common law lia- 
 
 Co. V. Henderson, 51 Penn. St. 315. bility by contract, see section 59, z«- 
 
 Contra. Poucher v. New York, &c., fra. 
 
 R. R. Co., 49 N. Y. 263 ; S. C. 10 Am. ^ Thompson on Carriers, 257 ; Jef- 
 
 Rep. 364. Gallin v. London, &c., Ry. fersonville, &c., R. R. Co. v. Hend- 
 
 Co., L. R. 10 Q. B. 212. See, ricks, 26 Ind. 228 ; Price w. St. Louis, 
 
 also. Commonwealth ?/. Vermont, &c., &c., R. R. Co., 72 Mo. 414. 
 
 R. R. Co., 108 Mass. 7 ; s. C. 1 1 Am. * Johnson v. West Chester, &c., R. 
 
156 RULE AFFECTING RAILWAY CORPORATIONS. [§ 53. 
 
 as to render it entirely safe and prudent, and whether or 
 not there was contributory negligence in the attempt is 
 generally a question for the jury upon a view of all the 
 facts.^ In a majority of instances, however, where the 
 character of such an act has been an issue, it has been 
 held contributory negligence.^ And in Massachusetts it 
 is held, as matter of law, that such an attempt is prima 
 facie contributory negligence.® The weight of authority 
 is to the effect that while an attempt to board a moving 
 train of cars is not per se negligent, it is, nevertheless, 
 presumptively negligent, and in a majority of cases actu- 
 ally negligent to the extent of preventing a recovery 
 from the railway company. In Texas, &c., R. R. Co. v. 
 Murphy/ a charge by the lower court that an attempt 
 to board a train moving rapidly would be negligent, 
 while such an attempt, if the train were moving slowly, 
 would not be negligent, was held error on appeal. 
 
 § 53. Alighting from moving trains. — As in the case 
 of boarding a railway train in motion, so it is held not 
 contributory negligence per se, for a passenger to jump 
 off a train which is moving.'' Whether or not a railway 
 company shall be held liable in damages for injuries sus- 
 tained by a passenger in attempting to leave one of its 
 trains while in motion, will depend upon whether under 
 
 R. Co., 7oPenn. St. 357; Swigert v. chartrain R. R. Co., 23 La. Ann. 
 
 Hannibal, &c., R. R. Co., 75 Mo. 462; Harper v. Erie Ry. Co., 32 N. 
 
 475; Stonerw. Pennsylvania Co., 98 J. Law, 88; Chicago, &c., R. R. Co. 
 
 Ind. 384; s. c. 49 Am. Rep. 764; z/. Scates 90 111. 586; Vicksburg, &c., 
 
 Texas, &c., R. R. Co., v. Murphy, R. R. Co. v. Hart, 61 Miss. 468. 
 46 Texas, 356; s. c. 26 Am. Rep. ' Harvey v Eastern, &c., R. R. 
 
 272. Co., 116 Mass. 269. 
 
 1 Jamison v. San Jose, &c., R. R. < Supra. 
 
 Co., 55 Cal. 593; Johnson v. West « Galveston, &c., R. R. Co. v. 
 
 Chester, &c., R. R. Co., supra; lUi- Smith, 59 Texas, 406; Loyd v. Han- 
 
 nois, &c., R. R. Co. w. Abel, 59 111. nibal, &c., R. R. Co., 53 Mo. 509; 
 
 131- Penn. R R. Co. ». Kilgore, 32 Penn. 
 
 2 Phillips V. Rennselaer, &c., R. R. St 292; Brooks v. Boston, &c., R. 
 Co., 49 N. Y. 177; Knight v. Pont- R. Co., 135 Mass. 21. 
 
§ 53'] RULE AFFECTING RAILWAY CORPORATIONS. 1 57 
 
 all the circumstances, it was prudent for him to make the 
 attempt.' In many cases such an act has been held suffi- 
 cient to prevent a recovery. " Locomotives are not the 
 only things that may go off too fast ; and railroad acci- 
 dents are not always produced by the misconduct of 
 agents. A large proportion of them is caused by the 
 recklessness of passengers," said Black, C. J., in a leading 
 case,* in which it is held that a passenger who jumps from 
 a running train to avoid being carried beyOnd his desti- 
 nation cannot recover for injuries thereby suffered. This 
 is the doctrine of many other cases.* 
 
 But where the passenger, acting under the advice or 
 directions of the company's employees, jumps from a 
 train in motion the case is different. When he jumps, in 
 spite of the remonstrances and protests of the train-men,* 
 it is negligence of an aggravated nature which, as of 
 course, will prevent a recovery. When, however, the 
 passenger, under the encouragement or instruction of the 
 company's servants, makes the leap, and suffers an injury 
 therefrom, such an act on the part of the passenger is not 
 
 ' Price V. St. Louis, &c., R. R. New Bedford, &c., R. R. Co., 6 Gray, 
 
 Co., 72 Mo. 414; Doss V. Missouri, 64; Morrison v. Erie Ry. Co., 56 N. 
 
 &c., R. R. Co., 59 Mo, 27; S. C. Y. 302; Burrows v. Id., 63 Id. 556; 
 
 21 Am. Rep. 371 ; Kelly v. Hannibal. Dougherty v. Chicago, &c., R. R. 
 
 &c., R. R. Co.. 70 Mo. 604; Karle Co., 86 111. 467 ; Lambeth v. North, 
 
 V. Kansas, &c., R. R. Co., 55 Id. 476. &c., R. R. Co., 66 N. C. 494; Lake 
 
 2 Pennsylvania R. R. Co. v. As- Shore, &c., R. R. Co. v. Bangs, 47 
 
 pell, 23 Penn. St. 147; S. C. 62 Am. Mich. 470; Mitchell v. Chicago, &c., 
 
 Dec. 323. R. R. Co., 51 Mich. 236; s. c. 47 
 
 ' Damont v. New Orleans, &c., R. Am. Rep. 566; Houston, &c., R. R. 
 
 R. Co., 9 La. Ann. 441 ; S. C. 61 Am. Co. v. Leslie, 57 Texas, 83. Compare 
 
 Dec. 214; Jewell v. Chicago, &c., R. Illinois, &c., R. R. Co. v. Green, 81 
 
 R. Co., 54 Wis. 610; S. C. 41 Am. 111. 19; S. C. 25 Am. Rep. 255; and 
 
 Rep. 63; Richmond, &c., R. R. Co. Commonwealth z/. Boston, &c., R. R. 
 
 V. Morris, 31 Gratt. 200; Cumber- Co., 129 Mass. 500; S. C.37Am. Rep. 
 
 land, &c., R. R. Co. v Mangans, 61 382. 
 
 Md. 53; Central, &c., R. R. Co. v. * Pennsylvania R. R. Co. v. Aspell, 
 
 Letcher, 69 Ala. 106; S. C. 44 Am. 23 Penn. St. 147; S, C. 62 Am. Dec. 
 
 Rep. 505; South, &c., R. R.Co. w. 323; Jewell v. Chicago, &c., R. R. 
 
 Singleton, 66 Ga. 252; S. c. 67 Id. Co., 54 Wis. 610; s. C 41 Am. Rep. 
 
 306; Jeffersonville, &c., R. R. Co. v. 63. 
 Hendricks, 26 Ind. 228; Lucas v. 
 
158 RULE AFFECTING RAILWAY CORPORATIONS. [§ 54. 
 
 generally held contributory negligence,^ But when the 
 passenger leaves the train voluntarily, even though at the 
 suggestion of the conductor or other train-men, while 
 the train is in motion, it is a question for the jury 
 whether he acted as a prudent man jinder the circum- 
 stances.^ 
 
 It is not, as has already been shown,^ an act of negli- 
 gence on the part of a passenger to leap from a train in 
 motion under apprehension of impending peril, and with 
 a reasonable belief that by so doing he is to escape 
 injury.* 
 
 § 54. Standing or riding on platforms. — It is not 
 negligent per se for a passenger to ride upon the plat- 
 form of a railway car ; * nor is it negligence to stand 
 upon the platform of cars in motion when there are 
 no vacant seats inside the car ; ^ but, as a general rule, 
 voluntarily and unnecessarily to stand or ride upon the 
 
 ' Central, &c., R. R. Co. v. Smith, fare, and who, being quasi trespas- 
 
 69 Ga., 268; St. Louis, &c., R. R. sers, were ordered to leave the train 
 
 Co. V. Cantrell, 37 Ark. 519; S. C. 40 by the conductor, and did so while 
 
 Am. Rep. loj ; Filer v. New York, the train was in motion, which action 
 
 &c., R. R. Co., 49 N. Y. 47 ; S. C. 10 on their part, in 'Mew of their being 
 
 Am. Rep. 327 ; Lambeth v. North, on board without right, was held con- 
 
 &c., R. R. Co., 66 N. C. 499; s. C. tributory negligence, in an action 
 
 8 Am. Rep. 508 ; Georgia, &c., R. against the railway for damages sus- 
 
 R. Co. V. McCurdy, 45 Ga. 288 ; s. tained by them in leaving the train]. 
 
 C. 12 Am. Rep. 577. Compare Del- Compare Higley v. Gilmer, 3 Mon- 
 
 amatyr v. Milwaukee, &c., R. R. Co., tana, 90 ; s. c. 35 Am. Rep. 450. 
 
 24 Wis. 578. 8 g 14^ supra. 
 
 8 Chicago, &c., R. R. Co. v. Ran- " Wilson v. Northern Pacific R. R. 
 
 dolpb, 53 HI- 510; s. C. 5 Am. Rep. Co., 26 Minn. 278; s. C. 37 Am. Rep. 
 
 60; Cincinnati, &c., R. R. Co. v. 410; Buel v. New York, &c., R. R. 
 
 Peters, 80 Ind. 168; Pennsylvania Co., 31 N. Y. 314; Iron Railway Co. 
 
 Co. V. Dean, 92 Id. 459; Benton v. v. Mowery, 36 Ohio St. 418; S. C. 38 
 
 Chicago, &c., R. R. Co., 55 Iowa, Am. Rep. 597; Frink -v. Potter, 17 
 
 496 ; Southwestern, &c., R. R. Co. v. 111. 406 ; Eastman v. Sanborn, 3 Al- 
 
 Singleton, 66 Ga. 252; s. c. 67 Id. len, 596; Stokes v. Soltonstall, 13 
 
 306. See, also, Galena, &c., R. R. Peters, 181 '; Jones v. Boyce, I Stark. 
 
 Co. V. Fay, 16 111. 558; s. C. 63 Am. 493 ; Ingalls v. Bills, 9 Mete, i; S. C. 
 
 Dec. 323 ; Houston, &c., R. R. Co. v. 43 Am. Dec. 346. 
 
 Gorbett, 49 Texas, 573; Atchison, « Zemp z/. Wilmington, &c., R. R. 
 
 &c., R. R. Co. V. Flinn, 24 Kan. 627 ; Co., 9 Rich. (Law), 84. 
 
 [a case of children who had boarded « Willis v. Long Island R. R. Co., 
 
 a train without money to pay their 34 N. Y. 670. 
 
§ 55>] RULE AFFECTING RAILWAY CORPORATIONS. I59 
 
 platform is such negligence as will prevent a recovery 
 for injuries received while there.^ If there is even 
 standing room within the car it is negligent to occupy 
 the platfornj. This is the rule in Pennsylvania^ and in 
 Illinois,* and it is commended by Dr. Wharton ;* but in 
 New York one may safely stand on the platform if 
 there are no seats inside the car unoccupied." And so 
 when one passes on the platform from car to car on a 
 train in motion, with the sanction of the conductor, on 
 a proper errand, it is not an act of contributory negli- 
 gence.* 
 
 § 55. Riding in baggage cars, on locomotives, or in 
 other unauthorized positions or places. — It is contribu- 
 tory negligence on the part of a passenger to ride in a 
 baggage car, contrary to the rules of the company. 
 The contract of carriage must be understood to be a 
 contract to carry the passengers in a passenger car and 
 the baggage in the baggage car. The passenger car is 
 the place the company provides for the passenger. It 
 is his duty to occupy that car, and to keep out of the 
 other cars of the train. A failure to do this is negli- 
 gence.^ It is sometimes said that riding in a baggage 
 car is such negligence as will prevent a recovery from 
 
 1 Camden, &c., R. R. Co. 2/. Hoosey, " Willis v. Long Island R. R. Co., 
 99 Penn. St. 492 ; S. C 44 Am. Rep. supra. 
 
 120; Hickey z/. Boston, &c., R. R. Co., « Mclntyre v. New York, &c., R. 
 
 14 Allen, 429; McAunich v. Missis- R. Co., 43 Barb. 532; affirmed, 37 
 
 sippi, &c., R. R. Co., 20 Iowa, 338; N. Y. 287 ; Louisville, &c., R. R. Co. 
 
 Higgins V. Harlem, &c., R R. Co., 2 v. Kelly, 92 Ind. 371 ; s. C. 47 Am. 
 
 Bosw. (N. Y.), 131 ; Quinn v. Illinois, Rep. 149. Compare Galena, &c., R. 
 
 &c., R. R. Co., 51 111. 495 ; Buel v. R. Co. v. Yarwood, ij 111. 468; Id. v. 
 
 New York, &c., R. R. Co., 31 N. Y. Fay, 16 Id. 558; s. C. 63 Am. Dec. 
 
 314; Alabama, &c., R. R. Co. v. 323. 
 
 Hawk, 72 Ala. 112; Cannon v. Rail- ' Pennsylvania R. R. Co. v. Lang- 
 way, 6 Ir. L. R. 199. don, 92 Penn. St. 21 ; S. c. 37 Am. 
 
 2 Camden, &c.,R. R. Co. w. Hoosey, Rep. 651; Kentucky Central R. R. 
 supra. Co. v. Thomas, 79 Ky. 160; S. C. 42 
 
 ' Quinn v. Illinois, &c., R. R. Co., Am. Rep. 208; Houston, &c., R. R. 
 
 supra. Co. v. Clemmons, 55 Texas, 88; S. C. 
 
 * Wharton on Neg., § 367. 40 Am. Rep. 799. 
 
l6o RULE AFFECTING RAILWAY CORPORATIONS. [§ 55. 
 
 the railway company only when it appears that the 
 passenger would have escaped injury had he been in the 
 passenger car. In such a rule as this the theory is that 
 when being in the baggage car is a proximate cause of 
 the injury, it will prevent a recovery, but when it is not 
 such a cause, that the action will lie. Something may be 
 said in favor of this rule.^ But, on the other hand, it may 
 be urged that a passenger voluntarily in a baggage car, 
 when he might just as conveniently be in the car 
 provided for his transportation, is a gfuasz trespasser. He 
 plainly has no business in that car, and toward trespassers 
 a carrier is not bound to exercise that high degree of care 
 and circumspection due to his regular passengers.^ If the 
 passenger would hold the carrier to the full measure of his 
 responsibility for safe carriage, he must conform to all the 
 reasonable rules the carrier makes, looking to the passen- 
 ger's safety and convenience, and if he violates such rules 
 and regulations by riding where he has no right to ride, it 
 is no very harsh rule that requires him to do it at his 
 proper peril. When the conductor or train-men consent, 
 or encourage the passenger to ride in the baggage car, 
 and especially, when they direct him so to do, it is held 
 that then the passenger is not guilty of negligence of 
 such a kind as to prevent his recovery if he sustains 
 injuries while riding there.* But it is difficult to see what 
 sound basis such a qualification as this can have. " If the 
 passenger," says the Supreme Court of Pennsylvania, 
 
 1 Kentucky Central R. R. Co. v. 58 Me. 187; s. C. 4 Am. Rep. 267; 10 
 
 Thomas, supra; Houston, &c., R R. Am. Law Reg. (N. S.), 615; Edger- 
 
 Co. V. Clemmons, supra. ton v. New York, &c., R. R. Co., 39 
 
 » Higley v. Gilmer, 3 Montana, 90; N. Y. 227 ; Pool v Chicago, &c., R. 
 
 S. C. 35 Am. Rep. 450. And see, R. Co., 53 Wis. 657; Ruckerw. Mis- 
 
 also, Atchison, &c., R. R. Co. v. souri, &c., R. R. Co., 61 Texas, 499 ; 
 
 Flinn, 24 Kan. 627. Washburn v. Nashville R. R. Co., 3 
 
 » Carroll v New York, &c., R. R. Head, 638 ; Keith v. Pinkham, 13 Me. 
 
 Co., I Duer, 571 ; O'Donnell v. AUe- 501 ; Watson v. Northern, &c., R. R. 
 
 gheny, &c., R. R. Co., 50 Penn. St. Co., 24 Upper Can. Q. B. 98; and Ja- , 
 
 490; S. C. 59 Penn. St. 239. See, cobus 2/. St. Paul, &c., R. R. Co., 20 
 
 also, Dunn v. Grand Trunk Ry. Co., Minn. 125 ; s. C. 18 Am. Rep. 360. 
 
§ 55-] RULE AFFECTING RAILWAY CORPORATIONS. l6r 
 
 " thus recklessly exposing his life to possible accidents," 
 [referring to a passenger injured while riding in a 
 baggage car with the consent of the conductor], " were 
 a sane man, more especially if he were a railroad man, 
 it is difficult to see how the knowledge, or even the 
 assent of the conductor to his occupying such a posi- 
 tion could affect the case. There can be no license to 
 commit suicide. It is true the conductor has the control 
 of the train,, and may assign passengers their seats ; but 
 he may not assign a passenger to a seat on the cow- 
 catcher, a position on the platform, or in the baggage 
 car. This is known to every intelligent man, and ap- 
 pears upon the face of the rule itself," [the printed rules 
 of the company posted in the baggage cars]. " He is 
 expressly required to enforce it, and to prohibit any of 
 the acts referred to, unless it be riding upon the cow- 
 catcher, which is so manifestly dangerous and improper 
 that it has not been deemed necessary to prohibit it We 
 are unable to see how a conductor, in violation of a 
 known rule of the company, can license a man to occupy 
 a place of danger so as to make the company responsi- 
 ble.^'^ This is sound reasoning. How can an employee 
 authorize a passenger to violate, not only the express 
 rules of the company, but also the rules that every 
 prudent man establishes for himself for his own protec- 
 tion, to the extent of rendering the company liable when 
 injury results from the violation of these regulations ? 
 
 Upon what principle of justice or equity can a 
 passenger, who voluntarily leaves his proper place in the 
 passenger car, in violation of the rules of the company, 
 to ride in the baggage car, or other place of known 
 danger, though he have never so much the consent of one 
 of the employees of the company,-and who is injured 
 
 " Pennsylvania R. R. Co. v. Langdon, 92 Penn. St. 21 ; S. C. 37 Am. 
 Rep. 651. 
 
 11 
 
1 62 RULE AFFECTING RAILWAY CORPORATIONS. [§ 55. 
 
 while riding in that exposed and unlawful position, call 
 upon the carrier for damages for such an injury ? The 
 baggage cars are known places of especial danger. In 
 this respect they differ from the cow-catcher and the 
 platforms only in degree. They are placed ahead of the 
 passenger cars and next to or near the locomotive, the 
 passenger cars being placed last in order in making up 
 the train, for the express purpose of affording the 
 passengers the utmost safety. An infant or an imbecile 
 might be excused for riding in baggage cars, by reason of 
 their conspicuous lack of mental capacity, but persons of 
 average intelligence may reasonably be presumed to know 
 the danger of such a course, and held to assume the risks 
 involved. The better rule is, that riding in such exposed 
 and unauthorized positions is negligence, and that a 
 passenger who suffers an injury while so exposing himself, 
 whether by the consent of the train-men or not, and 
 whether the injury would have been sustained or not, had 
 the passenger remained in his proper place, can have no 
 action against the carrier for damages so occasioned. The 
 passenger forfeits his right to recover when he violates the 
 rules of the company or fails to avail himself to the full ex- 
 tent of all the protection the carrier provides for him. He 
 may not refuse to be protected and then claim damages. 
 After reviewing the decided cases upon this subject, Mr. 
 Justice Paxson, of Pennsylvania, in the opinion from 
 which I have already quoted, as the conclusion of the 
 whole matter, says : " I am not aware that it has been 
 decided, in any well considered case, that a passenger 
 may, as a matter of right, ride in the baggage car at the 
 risk of the company. In a few cases it has been held 
 that the assent of the conductor is sufficient to charge the 
 latter with the consequences of such act ; that it amounts 
 to a waiver of the rule forbidding passengers to ride in 
 the baggage car. But how can a conductor waive a rule 
 
§ 55-] RULE AFFECTING RAILWAY CORPORATIONS. 1 63 
 
 •which, by its very terms, he is commanded to enforce ? 
 He may neglect to enforce it, and, when the rule is a 
 mere police arrangement of the company, such neglect 
 may, perhaps, amount to a waiver, as between the passen- 
 ger and the company. But when the rule is for the pro- 
 tection of human life, the case is very different. We are 
 not disposed to encourage conductors, or other railroad 
 officials, in violating reasonable rules which are essential 
 to the protection of the traveling public. If it is once 
 understood that a man who rides in a baggage car, in 
 violation of the rules, does so at his own risk, we shall 
 have fewer accidents of this description." ^ 
 
 This reasoning applies with equal cogency to the case 
 of passengers riding in any other exposed or unlawful 
 position upon a railway train, and with the greater force 
 in proportion as the risk increases. If it is negligent to 
 ride in baggage cars, it is all the more negligent to ride 
 upon locomotives, even with the consent of the train- 
 men,* or upon freight trains in violation of the company's 
 rule,* or upon hand-cars,* or upon the tops of freight 
 
 * Pennsylvania R. R. Co. v. Lang- without having been personally much 
 
 don, 92 Penn. St. 21 ; S. C. 37 Am. at fault. The authority of this case 
 
 Rep. 651. should not, accordingly, count against 
 
 2 Robertson v. Erie Ry. Co., 22 the rule. Compare Miles w. Atlantic, 
 
 Barb. 91 ; Waterbury v. New York, &c., R. R. Co., 4 Hughes, 172, and 
 
 &c., R. R. Co., 21 Blatchf. 314; Carter «'. Louisville, &c., R. R. Co., 
 
 Austin V. Greatwestem, &c., Ry. 98 Ind. 552; s. C. 49 Am. Rep. 780. 
 Co., L. R. 2 Q. B. 442 ; contra » Houston, &c., R. R. Co. v. Moore, 
 
 Ruckerw. Missouri, &c., R. R. Co., 49 Texas, 31; s. C. 30 Am. Rep. 98; 
 
 61 Texas, 499, which was the case of Sherman v. Hannibal, &c., R. R. Co., 
 
 a negro boy, a passenger on the de- 72 Mo. 62 ; s. C. 37 Am. Rep. 423 ; 
 
 fendant's train, who, doing as he was Eaton v. Delaware, &c., R. R. Co., 
 
 told to do by the person in charge of 57 N. Y. 382; s. C. 15 Am. Rep. 513. 
 
 the train, rode upon the pilot of the See, also, Elkins v. Boston, &c., R. 
 
 engine, and while there, was injured. R. Co., 23 N. H. 275; Lygo». New- 
 
 His conduct, under the circumstances, bold, 9 Exch. 302; Redfield's Am. 
 
 was held not to have been negligent. Ry. Cases, 490. 
 This was a hard case, and the conclu- * Hoar v. Maine Central R. R. Co., 
 
 sion reached is an illustration of the 70 Me. 65; S. C. 35 Am. Rep. 299; 
 
 truth of the proverb among lawyers, McQueen v. Chicago, &c., R. R. Co., 
 
 that hard cases make bad law. The 30 Kan. 689 ; Pool v. Chicago, &c., 
 
 negro did as he was told, as negroes R. R. Co., 53 Wis. 657. 
 are expected to do, and he got hurt, 
 
164 RULE AFFECTING RAILWAY CORPORATIONS. [§ 56. 
 
 cars.^ With respect, however, to the carriage of passen^ 
 gers upon freight trains, the rule is somewhat modified, 
 to the effect that, whenever the company receives pas- 
 sengers upon those trains, and collects fare from them, 
 although it is done in violation of a rule of the company, 
 it is lawful for the passenger to ride, and if, while so rid- 
 ing, he suffers an injury, due to the company's negligence 
 he may have his action? When the passenger is received 
 on the freight train, and is allowed to pay his fare, not- 
 withstanding a rule to the contrary, the relation of car- 
 rier and passenger is held to be thereby created, and in 
 case of an injury, the passenger may recover.' 
 
 § 56. Injuries at car windows and doors. — It is a. 
 general rule that a passenger who puts his head, or elbow, 
 or any other part of his body, out of the window of the 
 car in which he is riding, has no cause of action against 
 the railway company for any injury that he may sustain 
 on that account, from contact with outside obstacles or 
 forces. If any part of the passenger's body extends 
 through the open window, beyond the place where the 
 sash would be when the window is shut, it is sufficient to 
 prevent a recovery of damages by him.* The opinion of 
 
 1 Little Rock, &c., R. R. Co. v. waukee, &c., R. R. Co., 33 Wis. 41; 
 Miles, 40 Ark. 298 ; S. C. 48 Am. Rep. s. C. 14 Am. Rep. 735, and see, 
 10; McCorkle v. Chicago, &c., R. R. Murch v. The Concord R. R. Co., 29 
 Co., 61 Iowa, 555: But contra. In- N. tt. 9; Ohio, &c., R. R. Co. v. 
 dianapolis, &c., R. R. Co. v. Horst, Muhling, 30 111. 9; Ryan v. Cumber- 
 93 U. S. 291. land, &c., R. R. Co., 23 Penn. St. 
 
 2 Dunn V. Grand Trunk R. R. Co., 384; GiUshannon v. Stony Brook R. 
 58 Me. 187; s. C. 4 Am. Rep. 267; R. Co., 10 Cush. 228; Graham v. 
 ID Am. Law Reg. (N. S.) 615; Law- Toronto, &c., Ry. Co., 23 Up. Can. 
 Tenceburg, &c., R. R. Co. v. Mont- (C. P.) 514; Shearman v. Id. 34 Up. 
 gomery, 7 Ind. 476; Creed v. Penn- Can. (Q. B.) 451. 
 
 sylvaniaR. R. Co.,86Penn. St. 139; ^ See the cases generally last 
 
 S. C. 27 Am. Rep. 693; Arnold v. cited. 
 
 Illinois, &c.. R. R. Co., 83 111. 273; * Dun w. Seaboard, &c.,R.R. Co., 
 
 S. C. 25 Am. Rep. 383; Edgerton v. 78 Va. 645 ; S. C. 49 Am. Rep. 388; 
 
 New York, &c.. R. R. Co., 39 N. Y, Pittsburgh, &c., R. R. Co. v. Mc- 
 
 227; Chicago, &c.,R. R. Co. v. Haz- Clurg, 56 Penn. St. 294; (overruling 
 
 zard, 26 111. 375 ; Lucas v. Mil- New Jersey, &c.. R. R. Co. v. Ken- 
 
§ 56.] RULE AFFECTING RAILWAY CORPORATIONS. 165 
 
 Thompson, C. J., in the case of Pittsburgh, &c., R. R. 
 Co. V. McClurg,^ is often quoted as declaring a sound 
 doctrine in these cases. He says, inter alia : " A pas- 
 senger on entering a railroad car is to be presumed to 
 know the use of a seat, and the use of a window — that 
 the former is to sit in, and the latter to admit light and 
 air ; each has its separate use. The seat he may occupy 
 in any way most comfortable to himself. The window 
 he has a right to enjoy, but not to occupy.* Its use is 
 for the benefit of all, not for the comfort alone of him 
 who has by accident got nearest it. If, therefore, he sit 
 with his elbow in it, he does so without authority, and if 
 he allow it to protrude out, and is injured, is this due care 
 on his part ? He was not put there by the carrier, nor 
 invited to go there, nor misled in regard to the fact that 
 it is not a part of his seat, nor that its purposes were not 
 exclusively to admit light and air for the benefit of all. 
 His position is, therefore, without authority. His negli- 
 gence consists in putting his limbs where they ought not 
 to be, and liable to be broken, without his ability to know 
 whether there is danger or not approaching. In a case, 
 therefore, where the injury stands confessed, or is proved 
 to have resulted from the position voluntarily or thought- 
 lessly taken in a window, by contact with outside obsta- 
 cles or forces, it cannot be otherwise characterized than 
 as negligence, and so to be pronounced by the court. 
 . , . . In the absence of some justifying necessity, 
 or incapacity to take care of himself, on the part of the 
 
 nard, 21 Penn. St. 203;) Pittsburgh, i; Laing w. Colder, 8 Penn. St. 479; 
 &c., R. R. Co. V. Andrews, 39 Md. S. C 49 Am. Dec. 533 ; Judge Red- 
 329; s. C. 17 Am. Rep. 568; Hoi- field's note to Pittsburgh, &c., R. R. 
 brook V. Utica, &c., R. R. Co., 12 Co. v. McClurg, 2 Am. Ry. Cases, 
 N. Y. 236; Todd V. Old Colony, &c., 552. 
 R. R. Co.. 3 Allen, 18 ; S. C. 7 Id. 1 56 Penn. St. 294. 
 207 ; Indianapolis, &c., R. R. Co. v. ^ See, on this point, Gee v. Metro- 
 Rutherford, 29 Ind. 82; Louisville, politan, &c., Ry. Co., L. R. 8 Q. B. 
 &c., R. R. Co. V. Sickings, 5 Bush, 165. 
 
1 66 RULE AFFECTING RAILWAY CORPORATIONS. [§ 56. 
 
 passenger, no one can doubt, I think, from the reason 
 of the thing, in view of the nature of the vehicle used, 
 being a railroad car, that t9 extend an arm or a hand be- 
 yond the window sill is dangerous, and is recklessness or 
 negligence. Wherever the facts present such a case, 
 singly and without any controlling or justifying necessity, 
 we think the court ought to declare the act negligence, 
 and as there was nothing like this shown in the case be- 
 fore us, we think the court ought not to have affirmed 
 plaintiff's point. Unconsciously exposing himself did 
 not help the plaintiff 's case, as it was not shown that his 
 unconsciousness was not the result of a want of prudent 
 attention to his situation on the part of the plaintiff. It 
 would be a novel answer to the allegation of negligence 
 to allege that the plaintiff had slept in the position he was 
 in when hurt, and that would be a condition of uncon- 
 sciousness. Sleeping, when due care would require one 
 to be awake, or in dangerous circumstances, is negligence, 
 and no answer to the company can be given to such act. 
 Of course, these views are predicated of a case in which 
 there are no facts to qualify or justify the act. It is pos- 
 sible that a state of facts might be found to show an 
 exception to the rule, and where that occurs, the rule 
 ceases." ^ 
 
 In another line of authorities it is held that such an 
 act on the part of a passenger is not negligence /«r j^, 
 but that, whether or not the mere fact that the plaintiff 
 had his arm outside of the car window contributed to pro- 
 duce the injury complained of, is a proper question for the 
 jury.^ A consideration of the cases to be cited in support 
 
 1 Vide Wharton on Neg., § 361 ; 306 ; Spencer v. Milwaukee, &c., R. 
 Shear. & Redf. on Neg., § 281. R. Co., 17 Wis. 487; New Jersey, 
 
 2 Barton v. St. Louis, &c.. R. R. &c., R. R. Co. v. Kennard, 21 Penn. 
 Co., 52 Mo. 253 ; s. C. 14 Am. Rep. St. 203 ; Farlow v. Kelly, 108 U. S. 
 418; Chicago, &c., R. R. Co. v. Pon- 288. 
 
 drom, 51 111. 333; s. c. 2 Am. Rep. 
 
§ 56.] RULE AFFECTING RAILWAY CORPORATIONS. 167 
 
 of this view will, however, show that there is but a slight 
 basis for it, and that the weight of authority is decidedly 
 against any such position. The case of the New Jersey, 
 &c., R. R. Co, V. Kennard,^ has been expressly over- 
 ruled, and does not declare the rule now held in Penn- 
 sylvania. It was the earliest case in which this question 
 arose, and Chief Justice Gibson who delivered the opin- 
 ion, took very extreme ground. It has never been fol- 
 lowed. The decision in the Illinois case * was reached 
 under the influence of the rule of comparative negligence, 
 which will suffice to destroy its influence as a controlling 
 authority in other jurisdictions. Farlow v. Kelly,* goes 
 no further than to hold that it is not contributory neg- 
 ligence for a passenger to rest his arm upon the window- 
 sill of the car in which he is riding, without having it 
 protrude, which is scarcely the question in issue. In 
 Barton v. St. Louis, &c., R. R. Co.,* the evidence tended 
 to show that the plaintiff, when injured, was sitting in 
 the rear car of the train, at, or near, an open window, and 
 that the injury to his arm was caused by the car coming 
 in contact with a wagon loaded with a skiff. As to the 
 position of his arm at the instant of injury, whether inside 
 or protruded out of the window, the evidence was con- 
 flicting. In this state of facts, the court held that, even 
 if the plaintiff had his arm outside the window, still this 
 was not negligent per se, under the circumstances, and 
 that whether it contributed to the injury was a question 
 for the jury. This case cannot, therefore, count very 
 strongly against the more accepted doctrine. 
 
 The Supreme Court of Wisconsin, in the case of 
 Spencer v. Milwaukee, &c., R R Co.,® considers the 
 
 > Supra. '17 Wis. 487, cited supra, which 
 
 ' Chicago, &c., R. R. Co. v. Pon- is practically the only case in which 
 
 drom, supra. the rule that such an act is negligent 
 
 ' Supra. per se, is squarely denied. 
 * Supra. 
 
1 68 RULE AFFECTING RAILWAY CORPORATIONS. [§ 56. 
 
 question with great ability, and reaches a conclusion con- 
 trary to the general rule upon the subject. This is the 
 only case, as far as my reading goes, in which, upon the 
 general question fairly presented, a court of last resort 
 has held that such acts are not negligent, as matter of 
 law. But that the case stands alone, is no conclusive ar- 
 gument against it. It is entitled to weight not only as 
 the deliberate judgment of a court of acknowledged abili- 
 ty, but also by reason of the vigor of its reasoning, and 
 the inherent fitness of the position it takes. In the 
 opinion, after reviewing the cases in point, the court 
 says : " When we consider the manner in which railroad 
 cars are usually constructed, with windows so that they 
 can be opened and arranged at a sufficient height, from 
 the seat, so that passengers will almost unconsciously 
 place their arms upon the sill for support, there being no 
 bars or slats before the window to prevent their doing so, 
 then, to say that, if a passenger's arm extends the slightest 
 degree beyond the outside surface, he is wanting in 
 proper care and attention, and if an injury happens, he 
 cannot recover because his conduct must have necessarily 
 contributed to the result, appears to us to be laying down 
 a very arbitrary and unreasonable rule of law. It is, 
 probably, the habit of every person while riding in the 
 cars, to rest the arm upon the base of the window. If 
 the window is open, it is liable to extend slightly outside. 
 This, we suppose, is common habit. There is always 
 more or less space between the outside of the car and 
 any structure erected by the side of the track, and must, 
 necessarily, be so to accommodate the motion of the car. 
 Passengers know this, and regulate their conduct accord- 
 ingly ; they do not suppose that the agents and managers 
 of the road suffer obstacles to be so placed as to barely 
 miss the car while passing. And it seems to us almost 
 absurd to hold that, in every case, and under all circum- 
 
§ 56.] RULE AFFECTING RAILWAY CORPORATIONS. 169 
 
 Stances, if the party injured had his arm the smallest frac- 
 tion of an inch beyond the outside surface, he was want- 
 ing in ordinary care and prudence." 
 
 In some of the cases there is an intimation that th6 
 question should turn upon, whether or not, timely notice 
 of the danger had been given by the company, so that the 
 passenger might have avoided it, and it is an inference 
 that the company might be held liable when the notice is 
 not given.* These cases seem to proceed upon the theory 
 that, ordinarily, it may not be especially dangerous to al- 
 low the hand or arm to protrude somewhat beyond the 
 outer edge of the open window, and that the passenger is 
 justified in acting upon that supposition. And, that 
 whenever, for any reason, the danger in this regard is in- 
 creased it is the duty of the company to notify their pas- 
 sengers, and to warn them of it, the carrier's failure in the 
 discharge of this duty, entitling the injured passenger to 
 his action. 
 
 It is sometimes a question, when a passenger has 
 sustained an injury in opening or closing the door of a 
 car, or has suffered the injury when an employee of the 
 .company opened or shut it, whether or not the passen- 
 ger's own negligence contributed to the injury. In a re- 
 cent case, where the plaintiff, who sat near the front door 
 of a dark and crowded car on the defendant's railway, at- 
 tempted, in passing through a long tunnel, to shut the 
 door, in order to keep out the smoke and cinders, and re- 
 ceived an injury in the attempt, there being no servant of 
 the defendant at hand to do it, the Court of Appeals of 
 Maryland held that the plaintiff was not guilty of negli- 
 gence in so doing, and that the defendant was liable.^ It 
 
 » Laing v. Colder, 8 Penn. St. 479; « Western, &c.,R. R. Qo.v. Stanley, 
 s. C. 49 Am. Dec. 533; Dun v. Sea 61 Md. 366; S. C. 48 Am. Rep. 96. 
 Board, &c., R. R. Co., 78 Va. 645 ; S.C. 
 49 Am. Rep. 388. 
 
170 RULE AFFECTING RAILWAY CORPORATIONS, [§ 56. 
 
 is in this case declared to be the duty of the company to 
 provide servants to perform such services for the passen- 
 gers, and the right of the passenger, in case no servant is 
 at hand, to perform the service for himself, and, when the 
 passenger is injured in doing something for himself of 
 this nature, which it is the company's duty to have done 
 for him, the company's plea of contributory negligence as 
 a defense to the action for damages is bad. " If the in- 
 convenience is so great that it is reasonable to get rid of 
 it by an act not obviously dangerous, and executed with- 
 out carelessness, the person causing the inconvenience 
 by his negligence would be liable for any injury that 
 might result from an attempt to avqid such inconven- 
 ience," says Chief Justice Cockburn.^ There are several 
 English cases in which this question has been passed upon, 
 but they are not entitled to much weight in this country, 
 by reason of the difference, in very essential particulars, 
 between the railway service of the two countries. In 
 Gee V. Metropolitan Ry, Co.,* it is held that a passenger 
 may lawfully look out of a window in a door, and if, in so 
 doing, he leans against the door which is imperfectly and 
 negligently fastened, and which, in consequence, flies 
 open, and he falls out and is hurt, he may have his action. 
 In this case, in the Court of Exchequer Chamber, Cock- 
 burn, J., said : " The passenger did nothing more than 
 that which came within the scope of his enjoyment while 
 traveling, without committing any imprudence. In pass- 
 ing through a beautiful country he certainly is at liberty 
 to stand up and look at the view, not in a negligent, but 
 in the ordinary manner of people traveling for pleasure." 
 In the case of Adams v. Lancashire, &c., Ry. Co.,* in 
 
 ' In deciding this very point in the ^ l. R. 8 Q. B. 161. 
 case of Gee v. Metropolitan, &c., Ry. ^ l_ r - q p -,q 
 Co., L. R. 8 Q. B. 161; s Eng. Rep. 
 169. 
 
§57-] RULE AFFECTING RAILWAY CORPORATIONS. 171 
 
 which it appeared that the plaintiff shut the door of the 
 railway caijiage, which flew open through the negligence 
 of the company, three several times, and that, in trying to 
 shut it for the fourth time, he fell out and was hurt, 
 there was evidence that the car was not crowded, that 
 the plaintiff could have found a seat away from the door, 
 and that the train would have stopped at a station in 
 three minutes. Under this state of facts, the court held, 
 that, inasmuch as the inconvenience from the open door 
 was slight, and the passenger might have escaped it en- 
 tirely by moving his seat, while the danger of attempting 
 to close the door was considerable, the conduct of the 
 plaintiff so far contributed to occasion the injury that he 
 could not recover.^ 
 
 § 57. Injuries at and about railway stations. — It is 
 the plain duty of a railway company, as a common car- 
 rier of passengers, to keep its stations, and the approaches 
 thereto, in such a condition that those who have occasion 
 to use these premises for the purposes for which they are 
 designed, may do so with safety. Any failure upon the 
 part of the company to exercise ordinary care to this end 
 is a breach of duty for which an action will lie.^ Mr. ■ 
 Justice Cooley says : " When one, expressly or by impli- 
 cation, invites others to come upon his premises, whether 
 for business, or for any other purpose, it is his duty to be 
 reasonably sure that he is not inviting them into danger, 
 and to that end he must exercise ordinary care itid pru- 
 dence to render the premises reasonably safe for the 
 
 • Compare, also, the following En- Maddox v. Railway Company, 38 L. 
 
 glish cases upon this general ques- T. (N. S.) 458, (C. P. Div.), and see 
 
 tion; Siner v. Great Western Ry. Wharton on Neg., §§ 363 (and note), 
 
 Co., L. R. 4 Exch. 117; Richardson 632. 
 
 -w. The Metropolitan Ry. Co., L. R. 3 ^ Railroad Co. v. Henning, 1 5 Wall. 
 
 C. P. 374 (note); Fordham v. Lon- 659; Sweeny w Old Colony R. R. Co., 
 
 don, &c,, Ry. Co., L. R. 4 C. P. 6ig; 10 Allen, 373. 
 
172 RULE AFFECTING RAILWAY CORPORATIONS. [§ 57. 
 
 visit." ^ The cases are numerous where passengers have 
 recovered for injuries received after alighting, from the 
 cars, the carrier having failed to exercise due care in pro- 
 viding means for their safe egress.^ " Railroad com- 
 panies," says the Supreme Court of Pennsylvania,* " must 
 carry the passengers to their respective places of destina- 
 tion, and set them down safely, if human care and fore- 
 sight can do it." But when the passenger, on his own 
 part, fails to exercise proper care and prudence, his right 
 of action, upon familiar grounds, is thereby forfeited.* 
 
 When the train stops elsewhere than at a station as 
 at a water tank,® or upon a side track, to allow another 
 train to pass, or for any other purpose,* or upon ap- 
 proaching the crossing of another railway,'' or upon a 
 bridge or culvert,^ or in a tunnel,* or at any other place 
 at which there is no express or implied invitation to 
 
 ^ Cooley on Torts, 604. 
 
 ^ Stewart v. International, &c., R. 
 R. Co., 53 Texas, 289; s. C. 37 Am. 
 Rep. 753; Bennett?;. Louisville, &c., 
 R. R. Co., 102 U. S. S77 ; Gaynor v. 
 Old Colony, &c., R. R. Co., 100 Mass. 
 211 ; McDonald v. Chicago, &c., R. 
 R. Co., 26 Iowa, 124; Columbus, 
 S;c., R. R. Co. V. Farrell, 31 Ind. 
 408; Osborne v. Union Ferry Co., 
 53 Barb. 629; Dice v. Willamette, 
 Trans., &c., Co., 8 Oregon, 60; S. C. 
 34 Am. Rep. 575 ; Imhpff v. Chicago, 
 &c., R. R. Co., 20 Wis. 364; Patten 
 V. Id., 32 Id. 533; Martin v. Great 
 Northern, &c., Ry. Co., 16 C. B. 179; 
 S. C. 81 E^. Com. Law, 179; Nich- 
 olson V. Lancashire, &c., Ry. Co., 3 
 Hurl. & C. 534; Caterham Ry. Co. w. 
 London R., 87 Eng. Com. Law, 410; 
 Hutchinson on Carriers, § 516 ^/ seq ; 
 Redfield on Carriers, § 514; Shear. & 
 Redf. on Neg., § 275. 
 
 ' Pennsylvania R.R. Co.w. Aspell,23 
 Fenn. St. 149; S. C. 62 Am. Dec. 323. 
 
 * Evansville, &c., R. R. Co. v. Dun- 
 can, 28 Ind. 442 ; Forsyth v. Boston, 
 &c., R. R. Co., 103 Mass., 510; Com- 
 monwealth V. Id., 129 Id 500; s. c. 
 
 37 Am. Rep. 382 ; Illinois, &c., R. R. 
 Co. V. Green, 81 111. 19; s. C. 25 Am, 
 Rep. 255; Mitchell v. Chicago, &c., 
 R. R. Co., 51 Mich. 236 ; s. C.47 Am. 
 Rep. 566. See, also, Sevier v. Vicks- 
 burg, &c., R. R. Co., 61 Miss. 8 ; S. C. 
 48 Am. Rep. 74. 
 
 5 Illinois, &c., R. R. Co. v. Green, 
 supra; State v. Grand Trunk Ry. 
 Co., 58 Me. 176; S. C. 4 Am. Rep. 
 258. 
 
 « Frost V. Grand Trunk, &c., Ry. 
 Co., 10 Allen, 387; Montgomery, &c., 
 R. R. Co. -v. Boring, 51 Ga. 182. 
 
 ' Mitchell V. Chicago., &c., R. R. 
 Co., 51 Mich. 236; s. c. 47 Am. Rep. 
 566. 
 
 8 Columbus, &c., R. R. Co. w. 
 Farrell, 31 Ind. 408 ; Terre Haute, 
 &c., R. R. Co. V. Buck, 96 Id. 346 ; S. 
 C. 49 Am. Rep. 168; Taber v Dela- 
 ware, &c., R. R. Co., 71 N. Y. 489; 
 Montgomery, &c., R. R. Co. v. Bor- 
 ing, 51 Ga. 182; Whittaker v. Man- 
 chester, &c., Ry. Co., L. R. 5 C. P. 
 464 (note 3). 
 
 ' Bridges v. North London Ry. Co., 
 L. R 6 Q. B. 377; s. C. 24 L. T. Rep. 
 (N. S.), 835. 
 
§ 57-1 RULE AFFECTING RAILWAV CORPORATIONS. 1 73 
 
 the passenger to alight,^ and where the stop is made 
 for the purposes of the railroad alone, it is generally 
 held that, when the passenger leaves the cars under 
 these circumstances, he acts at his peril, and that, if he 
 suffers an injury in so doing, his own negligence will 
 prevent a recovery.^ When, however, the name of the 
 station is announced by the proper employee of the 
 company, the passenger may rightfully infer that the 
 first stoppage of the train will be at that station, and 
 he will not be guilty of such contributory negligence 
 as will bar his recovery by construing such announce- 
 ment and stoppage as an invitation to him to alight.* 
 Upon this point Chief Justice Cockburn well says : 
 ^' An invitation to passengers to alight, on the stop- 
 ping of a train, without any warning of danger to a 
 passenger who is so circumstanced as not to be able 
 to alight without danger, such danger not being visible 
 and apparent, amounts to negligence, .... and, it 
 appears to us, that the bringing up of a train to a final 
 standstill for the purpose of the passengers' alighting, 
 amounts to an invitation to alight, at all events, after 
 such a time has elapsed that the passenger may reason- 
 ably infer that it is intended that he should get out, if 
 he proposes to alight at the particular station."* When 
 the train is stopped at any unusual place, and the 
 passenger is either compelled, or advised, to alight by 
 the servants of the carrier, the company will be liable, 
 if injury result. An illustration of the application in 
 
 ' Lewis V. The London, &c., Ry. * Cockle v. London, &c., Ry. Co., 
 
 Co , L. R. 2 Q. B. 66. L. R. 7 C. P. 321 ; s. C. 27 L. T. Rep. 
 
 * See the cases generally cited, su- (N. S.), 320. See, also, Praeger v. 
 
 pra. The Bristol, &c., Ry. Co., 24 L. T. 
 
 ' Central, &c., R. R. Co. v. Van Rep. (N. S.), 105; Terre Haute, &c., 
 
 Horn, 38 N. J. Law, 133; Milliman v. R. R. Co v. Buck, 96 Ind. 346 ; S. C. 
 
 New York, &c., R. R. Co., 66 N. Y. 49 Am. Rep. 168; Mitchell w. Chicago, 
 
 642; Cockle V. London, &c., Ry. Co., &c., R. R. Co., 51 Mich. 236; S. C. 47 
 
 L. R. 7 C. P. 321. Am. Rep. 566. 
 
174 RULE AFFECTING RAILWAY CORPORATIONS. [§ 57, 
 
 this rule is found in the case of the Memphis and 
 Charleston R. R. Co. v. Whitfield/ where the defendants, 
 having stopped their train several hundred yards from the 
 station, at a point where the land was low, and covered 
 with sleet and ice, compelled the plaiatifF, by refusing to 
 back the train up to the platform, to alight upon the ice 
 and snow, whereby he dislocated his knee. The jury 
 found negligence in the defendants, and gave a verdict 
 for the plaintiff, and upon appeal, the court held that the 
 judgment should be affirmed, saying : "A railway com- 
 pany stopping its train for passengers at a place so steep 
 that they could not easily climb upon the train would be 
 bound to assist them to do so, and, most assuredly, not 
 less so to aid a passenger in alighting under similar cir- 
 cumstances. The conductor is bound, upon the request 
 of any passenger, to move the train backward or forward, 
 so as to enable the passenger to step upon the plat- 
 form." In Brown v. Chicago, &.C., R. R. Co.,** it is held 
 that where a pregnant woman passenger on a railway 
 train was carelessly directed by one of the train-men to 
 leave the train on a stormy night, three miles short of her 
 destination, and the exertion of walking home in the 
 night brought on a miscarriage and consequent sickness 
 and distress, the company was liable. This case contains 
 an exhaustive review of the authorities, and states the 
 law in point with great clearness and force.* Many cases 
 may be cited in support of the rule that when a railway 
 passenger train is stopped elsewhere than at the platform 
 of a station, and passengers are compelled to alight there, 
 they may lawfully do so without any imputation of negli- 
 
 44 Miss. 466; S. C. 7 Am. Rep. « Mr. Irving Browne's learned note 
 
 °99- to this case, 41 Am. Rep. 53, is a val- 
 
 * 54 Wis. 342; s. c. 41 Am. Rep. uable scholitm upon the general ques- 
 
 41- tion. 
 
§ 57-] RULE AFFECTING RAILWAY CORPORATIONS. 1 75 
 
 gence, and, if injury results to them, may have an action 
 against the carrier.^ 
 
 In Carpenter v. Boston and Albany R R. Co.* it was 
 decided that where a plaintiff, waiting on the platform of 
 the defendant's station for the purpose of taking an in- 
 coming train, was struck by a mail bag thrown from the 
 postal car in the approaching train, by a clerk in the em- 
 ploy of the United States government, and it appearing 
 that it had long been the well-known custom to throw 
 off the bags when passengers were on the platform, and 
 that the defendant took no precautions to prevent in- 
 jury therefrom, such failure on the part of the com- 
 pany was negligent, and that a recovery might be had. 
 The plaintiff used the platform in a lawful manner 
 without negligence,* and was accordingly entitled to 
 protection in this particular. Precisely the same point, 
 coming up in just the same way, was made in the case 
 of Snow V. Fitchbiu-gh R. R Co.* by the Supreme 
 Judicial Court of Massachusetts ; but when the bag was 
 thrown off, not upon the platform, but some two hun- 
 dred feet beyond, and struck the leg of a scaffold upon 
 which the plaintiff was at work, so that it fell, and the 
 plaintiff was injured, the Supreme Court of Wisconsin 
 
 ' Foy V. London, &c., Ry. Co., 18 Birney, 71 111. 391 ; Francis v. St. 
 C. B. (N. S.) 225 ; Curtiss v. Roches- Louis Transfer Co., 5 Mo. App. 7 ; 
 ter, &c., R. R. Co.. 20 Barb. 285 ; Henry v. St. Louis, &c., R. R. Co., 
 Dice V. Willamette Trans.. &c., Co., 8 76 Mo. 288 ; s. C. 43 Am. Rep. 762 ; 
 Oregon, 60; s. C 34 Am. Rep. 575; Illinois, &c., R. R. Co. v. Green, 81 
 Fitzpatrick v. Great Western Ry. Co., 111. 19 ; S. C. 25 Am. Rep. 255 ; Com- 
 12 Up. Can. (Q. B.), 645 ; Thompson monwealth v. Boston, &c., R. R. Co., 
 V. New Orleans, &c., R. R. Co., 50 129 Mass. 500; s. C. 37 Am. Rep. 
 Miss. 315; S. C. 19 Am. Rep. 12; 382; Toledo, &c., R. R. Co. w. Bad- 
 Thompson on Carriers, 228; Angell delay, 54 111. 19; S. C. 5 Am. Rep. 71; 
 on Carriers, §§ 559-569 ; 2 Redfield Sevier v. Vicksburg, &c., R. R. Co., 
 on Railways, § 176; Hutchinson on 61 Miss 8; S. C. 48 Am. Rep. 74.. 
 Carriers, § 612 ; Pierce on Railways, * 97 N. Y. 494 ; S. C 49 Am. Rep. 
 475; Sedgwick on Damages, 539. 540. 
 
 Compare Siner v. Great Western Ry. ' Upon this point, see Weston v. 
 
 Co., L. R. 3 Exch. 150; Evansville, Elevated Ry. Co., 73 N. Y. 595. 
 
 &c., R. R. Co. V. Duncan, 28 Ind. * 136 Mass. 552; S. C. 49 Am. Rep. 
 
 442 ; Indianapolis, &c., R. R. Co. v. 40. 
 
176 RULE AFFECTING RAILWAY CORPORATIONS. [§ 58. 
 
 held that the railway company was not liable, upon the 
 ground that the company could not be charged with 
 notice that the bag was likely to be thrown off at the 
 depot, and hence was not bound to guard, by notice or 
 otherwise, against an accident to th^ plaintiff resulting 
 from its being thrown off, as it was upon the occasion in 
 question.^ 
 
 § 58. Injuries to free passengers. — When an action 
 is brought against a railway company for damages for an 
 injury sustained by a person who was carried gratuitously, 
 two questions are usually presented ; {a) did the relation 
 of carrier and passenger actually subsist between the 
 parties, and {U) was the common law liability of the 
 carrier in any degree limited by special contract ? With 
 respect to the first question, it is the general rule that 
 when the carrier receives the passenger and undertakes 
 his transportation, whether upon a consideration or not, 
 he becomes ipso facto liable as a carrier for the carriage, 
 and will not be heard to say, when injury results from 
 his carelessness, that the passenger rode gratuitously and, 
 therefore, should not recover.^ Having undertaken to 
 carry, the duty arises to carry safely. The carrier does 
 not, by consenting to carry a person gratuitously, thereby 
 relieve himself of responsibility for negligence. When 
 the assent to the riding free, has been legally and properly 
 given, the person carried is entitled in all respects to the 
 
 ' Muster v. Chicago, &c., R. R. boat New World 7/. King, 16 Id. 469; 
 
 Co., Sup. Ct., Wis., Nov. 1884, par- Little Rock, &c., R. R. Co. v. Miles, 
 
 tially reported 49 Am. Rep. 41. 40 Ark. 298 ; s c. 48 Am. Rep. 10 ; 
 
 2 Austin V. Great Western Ry Co., Nolton v. Western R. R. Co., 15 N. 
 
 L. R. 2 Q. B. 442 ; Waterbury v. Y. 444; Perkins v. New York, &c.. 
 
 New York, &c., R. R. Co., 21 R. R., 24 Id. 200; Wilton w. Middle- 
 
 Blatchf. 314; Blair v. Erie Ry. Co., sex R. R. Co., 107 Mass. 108; S. C. 
 
 66 N. Y. 313; s. c. 23 Am. Rep. 55 ; 9 Am. Rep. 11 ; 2 Redfield on Rail- 
 
 Todd V. Old Colony, &c., R. R. Co., ways, 184, 185, and notes; Jacobus 
 
 3 Allen, 18; Phila., &c., R. R. Co. v. v. St. Paul, &c., R. R. Co., 20 Minn. 
 
 Derby, 14 How. (U. S.) 468; Steam- 125; s. c. 18 Am. Rep. 360. 
 
§ 58.] RULE AFFECTING RAILWAY CORPORATIONS. 1 77 
 
 same degree of care as if he had paid for the transporta- 
 tion.^ " The right which a passenger by a railway has 
 to be carried safely does not depend on his having made 
 a contract ; " but, " the fact of his being a passenger, casts 
 a duty on the company to carry him safely."* But 
 where one rides upon a railway train, without the proper 
 assent of the company, as a free passenger, the rule is 
 otherwise. There must be a true undertaking to carry, 
 or the relation of carrier and passenger will not be held 
 to subsist.^ So, when the plaintiff rides without the 
 defendant's permission, as where he is invited or suffered 
 to ride gratuitously by the» defendant's employees, who 
 have no right to carry any one free, there can be no 
 recovery in case of injury.* It is familiar learning that 
 a principal is not liable for the acts of his servant or 
 agent beyond the sphere of his duty, and for the em- 
 ployees of a railway to invite or permit persons to ride 
 gratuitously will, generally, be outside the scope of their 
 employment. The train-men are not hired for that sort 
 of service, and it is not in their power to impose a burden 
 upon their employers in that respect. It would be a 
 harsh rule that required a carrier to pay damages for the 
 negligent injury of a person upon their train, whose 
 injury was sustained through the negligence of the very 
 employees who wrongfully permitted him to be upon 
 
 1 The cases supra. 60 Mo., 413; Flower v. Penn. R. R. 
 
 ' Blackburn, J., in Austin v. Great Co., 69 Penn. St. 210; s. C. 8 Am. 
 
 Western Ry. Co., L. R. 2 Q. B. 442. Rep. 251 ; Union Pacific R. R. Co. 
 
 Compare Hammond w. North Eastern v. Nichols, 8 Kan. 505; s. C. 12 Am. 
 
 R. R. Co., 6 S. C. 130; S. C. 24 Am. Rep. 475; Moss v. Johnson, 22 111. 
 
 Rep. 467. 633; Quinn v. Power, 24 N. Y. Sup. 
 
 » See on this point, Merrill v. East- Ct. 102 ; Houston, &c., R. R. Co. v. 
 
 em R. R. Co. (Supr. Jud. Ct. Mass.), Moore, 49 Texas, 31 ; S. C. 30 Am. 
 
 1885,31 Albany Law Jour. 503. Rep. 98; Cox v. Railway, 3 Exch. 
 
 * Lygo V. Newbold, 9 Exch. 302; 268; Marvin v. Wilber, 52 N. Y. 
 
 Eaton V. Delaware, &c., R. R. Co., 270, 273; Elkins v. Boston, &c., R. 
 
 (by Theo. W. Dwight, C), 57 N. Y. R. Co.,23N. H. 275. But see, Prince 
 
 382; S. C. 15 Am. Rep. 513; Robert- v. International, &c., R. R. Co. (Sup. 
 
 son V. Erie Ry. Co., 22 Barb. 91; Ct. Texas), 1885, 20 Cent. Law Jour. 
 
 Snyder v. Hannibal, &c., R. R. Co., 479. 
 
 12 
 
178 RULE AFFECTING RAILWAY CORPORATIONS. [§ 58. 
 
 the train as a free passenger.^ In cases of this kind, the 
 defendant corporation was not a carrier as to the plaint- 
 iff, nor under a carrier's obligation as to him. No con- 
 tract of carriage, express or implied, can be assumed to 
 exist in such a case, and such a passenger must be held 
 to travel at his own proper peril. 
 
 A question as to the liability of the railway may arise 
 in cases of injury to persons allowed to be upon the 
 trains of the company in the capacity of newsboys, 
 peddlers, and the like. In the case of the Commonwealth 
 V. Vermont, &c., R. R. Co.,* in which a person, who 
 furnished the passengers upcjn the defendants' trains with 
 iced water, under a contract with the company, and was 
 also allowed to ride upon the trains and sell pop-corn, was 
 negligently killed while so riding, it was held that, while 
 traveling under this arrangement, such person was a 
 passenger, and not an employee, and that, consequently, 
 the company might be held responsible for the injury 
 he sustained. And the same rule was declared in Yoe- 
 mans v. Contra Costa Steam Navigation Co.* In this 
 case it appears that the plaintiff kept a bar upon the 
 defendant's steamboat, paying two hundred dollars per 
 month for the privilege. He also acted as agent for 
 an express company which carried on its business over 
 the defendant's lines. The defendant's route consisted 
 partly of a passage by steamer and partly of a passage by 
 railway, and the plaintiff was injured by one of the de- 
 fendant's locomotives while on his way to the boat on 
 his proper business. The court held him a passenger, 
 and not an employee, and, therefore, entitled to his 
 action.* But, on the contrary, a railway company is not 
 
 1 Sherman v. Hannibal. &c., R. R, s 108 Mass. 7 ; S.C. 1 1 Am. Rep. 301. 
 
 Co., 72 Mo. 62; s. C. 37 Am. Rep. « 44 Cal. 71. 
 
 423, See, also, New Orleans, &c., * See, also, Brennan v. Fairhaven, 
 
 R. R. Co. V. Harrison, 48 Miss. 112; &g., R. R. Co., 45 Conn. 284; S. C. 
 
 s. C. 12 Am. Rep. 356. 29 Am. Rep. 679; Smallman v. 
 
§ 59-J RULE AFFECTING RAILWAY CORPORATIONS. 1 79 
 
 liable for the accidental death of a boy, permitted by the 
 conductor, against its rules, to ride gratuitously on the 
 train to sell papers.^ 
 
 The duty of the carrier toward express messengers, 
 mail agents, persons riding on drover's passes, and such 
 other classes of persons as may be denominated quasi 
 passengers, has been considered in a preceding section.' 
 
 § 59. Carrier's liability limited by contract. — It is 
 usual for a common carrier to stipulate, as part of the 
 contract by which he undertakes to transport passengers 
 gratuitously, against liability to such passengers in case 
 of injury. When a pass is issued it generally contains 
 some such exemption clause as this : " The person accept- 
 ing and using this pass assumes all risks and damages 
 for any injury to the person, or for any loss or injury to 
 his property, while using or having the benefit of it, and 
 waives all claim on this company therefor," ' or, " The 
 person accepting this ticket assumes in consideration 
 thereof, all risks of accidents, and expressly agrees that 
 the company shall not be liable under any circumstances, 
 whether of negligence by their agents or otherwise, for 
 any injury to the person, or for any loss or injury to the 
 property of the person using this ticket," * or, " The per- 
 son accepting and using this pass thereby assumes all 
 risk of accident and damage to person or property."" 
 By some such stipulation as this it is generally sought to 
 escape liability in case of injury to free passengers. The 
 courts have, in consequence, been called upon repeatedly 
 to pass upon the question whether, in this or any equiva- 
 
 Whilter, 87 111. 545 ; S. C. 29 Am. ' This is the clause inserted in the 
 
 Rep. 76; Barry v. Oyster Bay & passes issued by the Chicago, Mil- 
 
 Huntington Steamboat Co., (i^ N. Y. waukee & St. Paul R. R. Co. 
 301; S. C. 23 Am. Rep. 115. * Old Dominion Steamship Co.'s 
 
 1 Duff V. Allegheny R. R. Co., 91 passes. 
 Penn. St. 458 ; S. C. 36 Am. Rep. 675. = Upon passes issued by the Louis- 
 
 * § 50, supra. ville and Nashville R. R. Co. 
 
l8o RULE AFFECTING RAILWAY CORPORATIONS. [§ 59. 
 
 lent way, a common carrier may thus stipulate, and, by 
 special contract, exempt himself, in cases of this kind, 
 from liability for his own or his servant's negligence. 
 The older English authorities answered this question in 
 the negative, holding special stipulations by a public 
 carrier against liability for negligence or misconduct, 
 illegal and void. Thus, in the Doctor and Student,* 
 speaking of a common carrier, it is said : " If he would 
 per se refuse to carry it, [articles delivered for carriage], 
 unless promise were made unto him that he shall not be 
 charged for no misdemeanor that should be in him, the 
 promise were void, for it were against reason and against 
 good manners, and so it is in all other cases like." * This 
 was the law in England until about the year 1832,* but 
 from that time, until the passage of the Railway and 
 Traffic Acts of 1854, it was held that a carrier might, by 
 a special notice, make a contract limiting his responsi- 
 bility, even in the case of gross negligence, misconduct 
 or fraud, on the part of his servants.* " It is not for us," 
 said Baron Parke, in a case decided in 1852,* "to fritter 
 away the true sense and meaning of these contracts 
 merely with a view to make men careful. If any incon- 
 venience should arise from their being entered into, this 
 is not a matter for our interference, but it must be left 
 to the legislature, who may, if they please, put a stop to 
 this mode which carriers have adopted of limiting their 
 liability." The railway companies were, therefore. 
 
 » Dial, 2 c. 38. 10 C. B. 454; Chippendale v. Lan- 
 
 * Quoted in Noy's Maxims, 92. cashire, &c., Ry. Co., 21 L. J. (N. S.) 
 See, also, 2 Stephens' Com. 135. Q. B. 22 ; Carr v. Id. 7 Exch. 707 ; 
 
 ' Peek V. North Staffordshire, &c., Great Northern, &c., Ry. Co. i-. Mor- 
 
 Ry. Co., 10 H. L. Cas. 494. ville. 21 L. J. (N. S.) Q. B. 319; 
 
 * Wyld V. Pickford, 8 Mee. & W. York, &c., Ry. Co. v. Crisp, 14 C B. 
 443; Walker v. York, &c., Ry. Co. 527; Hughes «/. Great Western, &c., 
 3 El. & Bl. 750; Hinton v. Dibbin, 2 Ry. Co., 14 C. B. 637; Slim v. Great 
 Q. B. 646; Shaw V. York, &c., Ry. Northern. &c., Ry. Co., 14 C. B.647. 
 Co., 13 Id. 347; Austin v. Manches- » Carr w. Lancashire, &c., Ry. Co., 
 ter, &c., Ry. Co., 16 Id. 600; S. C. supra. 
 
§ 59- J KULE AFFECTING RAILWAY CORPORATIONS. l8l 
 
 enabled, for the most part, " to evade altogether the salu- 
 tary policy of the common law," In this state of the 
 law, parliament, in 1854, passed an act entitled, "The 
 Railway and Canal Traffic Act," ^ which made railways 
 liable for the negligence of themselves or their servants, 
 notwithstanding any notice or condition to the contrary, 
 unless the court should adjudge the conditions just and 
 reasonable.^ Much controversy has arisen in the courts 
 in construing this act ;* but it seems now to be settled 
 that it amounts, in effect, to a restoration of the common 
 law doctrine as held prior to the year 1832.* 
 
 The leading authority in this country upon the ques- 
 tion, is Railroad Co. v. Lockwood, decided by the Su- 
 preme Court of the United States, at the October term, 
 in 1873.® Mr- Justice Bradley delivered the opinion of 
 the court, which, after a very full and impartial review of 
 the authorities, concludes as follows : " The conclusions 
 to which we have come are : 
 
 " First. That a common carrier cannot lawfully stipu- 
 late for exemption from responsibility when such exemp- 
 tion is not just and reasonable in the eye of the law. 
 
 " Secondly. That it is not just and reasonable in the 
 eye of the law, for a common carrier to stipulate for ex- 
 emption from responsibility for the negligence of himself 
 or his servant, 
 
 " Thirdly. That these rules apply both to carriers of 
 goods and carriers of passengers for hire, and with special 
 force to the latter. 
 
 " Fourthly. That a drover, traveling on a pass, such as 
 
 ' 17 and 18 Vict., c. 31, § 7. this statute did little more than bring 
 
 2 I Fisher's Digest, 1466. back the law to the original position 
 
 ' Pardington v. South Wales Ry. in which it stood before the English 
 
 Co., I Hurl. & N. 392. • courts took their departure from it." 
 
 * Peek V. North Staffordshire, &c., Bradley, J., in Railroad Co. v. Lock- 
 
 Ry. Co., 10 H. of L. Cas. 473 ; Mc- wood, 17 Wall. 364. 
 
 Manus v. Lancashire, &c., Ry. Co., 4 » 17 Wall. 357; s. C. 10 Am. Rep. 
 
 Hurl. & N. 328. " The truth is, that 366. 
 
1 82 RULE AFFECTING RAILWAY CORPORATIONS, [§ 59. 
 
 was given in this case, for the purpose of taking care of 
 his stock on the train, is a passenger for hire. 
 
 "These conclusions decide the present case, and re- 
 quire a judgment of affirmance. We purposely abstain 
 from expressing any opinion as to what would have been 
 the result of our judgment, had we considered the plaint- 
 iff a free passenger instead of a passenger of hire." 
 
 In some of the earlier decisions of various State courts 
 in this country, there was a tendency, as between what 
 was denominated gross negligence, and what is called or- 
 dinary negligence, to hold that, while a carrier might law- 
 fully stipulate, in these cases, against liability for the con- 
 sequences of ordinary neglect, it was contrary to public 
 policy to permit such a stipulation for the consequences 
 of gross negligence.^ But in the case from which I have 
 just quoted,'' and which is everywhere regarded as a con- 
 trolling authority, except, possibly, in the State of New 
 York, where the Court of Appeals refuses to be influ- 
 enced by it, speaking to this point, it is said : " We have 
 already adverted to the tendency of judicial opinion, ad- 
 verse to the distinction between gross and ordinary neg- 
 ligence. Strictly speaking, these distinctions are indica- 
 
 1 Wells r/. New York, &c., R. R. 36 Conn. 63; Kimball v. Rutland, 
 
 Co., 26 Barb. 641 ; s. C. 24 N. Y. 181 ; &c., R. R. Co., 26 Vt. 247; Mann v. 
 
 Perkins v. Id., 24 N. Y. 196; Smith Birchard, 40 Vt. 326; Illinois, &c., R. 
 
 V. Id., 29 Barb. 132; s. C. 24 N. Y. R. Co. v. Adams, 42 111. 474; Haw- 
 
 222 ; Bissau v. Id., 29 Barb. 602 ; s. C. kins v. Great Western R. R. Co., 17 
 
 25 N. Y. 442; Poucher v. Id., 49 N. Mich. 57; s. C. 18 Id. 427; Baltimore, 
 
 Y. 263; S. C. 10 Am. Rep. 364; Ash- &c., R. R. Co. v. Brady, 32 Md. 328; 
 
 more v. Penn. Steam, &c., Co., 28 N. Levering v. Union, &c., R. R. Co., 42 
 
 J. Law, 180; Kinney !<. Central, &c.. Id. 88. Many of these cases were, 
 
 R. R. Co., 34 N. J. Law, 513; s. C. 3 however, decided by divided courts; 
 
 Am. Rep. 265; Cole v. Goodv«n, 19 some of them limit the exception to 
 
 Wend. 251; s. c. 32 Am. Dec. 470, cases of slight negligence, some of 
 
 [and Mr. Freeman's learned note ap- them to ordinary negligence, and a 
 
 pended, in which the authorities pro ievr (^ them incline to extend the doc- 
 
 and con are very luUy cited] ; Hale v. trine to cases of gross negligence. 
 
 New Jersey Steam Nav. Co., IS Conn. ^ Railroad Co. v. Lockwood, 17 
 
 539; s. C. 39 Am. Dec. 398; Law- Wall. 357. 
 rence v. New York, &c., R. R. Co., 
 
§ 59-] RULE AFFECTING RAILWAY CORPORATIONS. 1 83 
 
 tive, rather of the degree of care and diligence which is 
 due from a party, and which he fails to perform, than of 
 the amount of inattention, carelessness, or stupidity which 
 he exhibits. If very little care is due from him, and he 
 fails to bestow that little, it is called gross negligence ; 
 if very great care is due, and he fails to come up to the 
 work required, it is called slight negligence ; and, if or- 
 dinary care is due, such as a prudent man would exercise 
 in his own affairs, failure to bestow that amount of care 
 is called ordinary negligence. In each case, the negli- 
 gence, whatever epithet we give it, is failure to bestow 
 the care and skill which the situation demands, and hence 
 it is more strictly accurate, perhaps, to call it simply neg- 
 ligence, and this seems to be the tendency of modern 
 authority." 
 
 Aside from New York, where it may now be regarded 
 as settled that a common carrier for hire, or otherwise, 
 may, by special contract, exempt himself from all responsi- 
 bility for loss or damage, arising from the negligence of 
 his servants, though this negligence begross,^ it is the gen- 
 eral rule in this country, in both State and Federal Courts, 
 that, while a common carrier for hire, or otherwise, may, 
 by express agreement, limit his common law liability as: 
 an insurer of property intrusted to him for transporta- 
 tion, he cannot stipulate for freedom from liability for 
 injury or loss, either to passengers or goods, resulting 
 from the negligence of himself or his servants, nor limit 
 his liability, as a common carrier at common law, to such 
 injuries or losses as are caused by his own, or his agents' 
 
 » Poucher v. New York, &c., R R. Y. i ; S. C. 1 5 Am. Rep. 453 ; Can- 
 Co., 49 N. Y. 263; S. C. lo'Am. Rep. field v. Baltimore, &c., R. R. Co., 93 
 364; Cragin v. Id., 51 N. Y.61; S. C. N. Y. 532; s. C 45 Am. Rep. 268; 
 10 Am. Rep. 559; Bissell v. New S. C. 75 N. Y. 144; Mynard v. Syra- 
 York, &c., R. R. Co.. 25 N. Y. 442; cuse, &c., R. R. Co., 71 N. Y. 183; 
 Magnin v. Dinsmore, 70 N. Y. 410 ; S. C. 27 Am. Rep. 28. Compare 
 S. C. 26 Am. Rep. 608 ; s. C. 56 N. Seybolt v Erie Ry. Co , 95 N. Y. 562 ; 
 Y. 168; Steers v. Liverpool, New S. C. 47 Am. Rep. 75. 
 York & Phila. Steamship Co., S7 N. 
 
184 RULE AFFECTING RAILWAY CORPORATIONS. [§ 60. 
 
 gross negligence. Only a very small part of the multi- 
 tude of decisions of all the courts that insist upon the 
 salutary rule can be cited here.^ 
 
 In actions, therefore, by a free passenger, who is law- 
 fully and regularly a passenger, against a common carrier 
 for damages sustained by reason of the carrier's negligence, 
 it is not, as a rule, any defense to the action that the pas- 
 senger was carried gratuitously ; the courts will refuse to 
 enforce any stipulation against liability for negligence on 
 the part of the carrier or his servants, and, in cases in 
 which the passenger himself is free from contributory 
 negligence, his action will lie, and he may recover. This 
 proposition is believed to be fully sustained by the weight 
 of authority as already cited.* 
 
 § 60. Passenger's negligence as to baggage. — The 
 common law makes the carrier an insurer of the passen- 
 ger's baggage, and he is answerable for all loss or damage 
 
 » Maslin v. Baltimore, &c., R. R. Am. Rep. 353; Virginia, &c., R. R. 
 
 Co., 14 West Va. 180; s. C. 35 Am. Co. v. Sayres, 26 Grattan, 328 ; New 
 
 Rep. 748 [Entitled to rank as a lead- Orleans, &c., Ins. Co. v. Railroad 
 
 ingcase. The opinion of Judge Green, to., 20 La. Ann. 302; Merchant's, 
 
 herein, is luminous and exhaustive]; &c., Co. v. Comforth, 3 Colo. 280; S. 
 
 Laing v. Colder, 8 Penn. St. 479 ; S. C. C. 25 Am. Rep. 757 ; Erie Ry. Co. v. 
 
 49 Am. Dec. 533 ; Empire Trans. Co. Wilcox, 84 111. 239 ; s. C. 25 Am. Rep. 
 
 V. Wamsutta Oil Co., 63 Penn. St. 14; 451 ; Omdorff w. Adams Express Co., 
 
 S. C. 3 Am. Rep. 515; Penn. R. R. 3 Bush, 194; Southern Express Co. 7/. 
 
 Co. V. Henderson, 51 Penn. St. 315 ; Crook, 44 Ala. 468 ; S. C. 4 Am. Rep. 
 
 Jones V. Voorhees, 10 Ohio, 145 ; 140 ; Swindler v. Hilliard, 2 Rich. 
 
 Cleveland, &c., R. R. Co. v. Curran, (Law) 286; S. C. 45 Am. Dec. 732; 
 
 19 Ohio St. I ; S. C. 2 Am. Rep. 362; Flinn v. Phila., &c., R. R. Co., i 
 
 Knowlton z/. Erie Ry. Co., 19 Ohio Hous. (Del.) 472; Ohio, &c., R. R. 
 
 St. 260; S. C. 2 Am. Rep. 395; Sayer Co. v. Selby, 47 Ind. 471 ; S. C. 17 
 
 V. Portsmouth, &c., R. R. Co., 31 Me. Am. Rep. 719 ; Id. v. Nichols, 71 Ind. 
 
 228; School District v. Boston, &c.. 271 ; Graham v. Pacific R. R. Co., 66 
 
 R. R. Co., 102 Mass. 552 ; S. C. 3 Am. Mo. 536 ; Rose v. Des Moines, &c.. 
 
 Rep. 502; Gait v. Adams Express R. R. Co., 39 Iowa, 246; Jacobus 
 
 Co., MacArth. & Mack. 124; s. C. 48 v. St. Paul, &c., R. R. Co., 20 Minn. 
 
 Am. Rep. 742; Kansas, &c., R. R. 125 ; s. C. 1 8 Am. Rep. 360 ; Railroad 
 
 Co. V. Simpson, 30 Kan. 645 ; s. c. 46 Co. v. Stevens, 95 U. S. 655. 
 
 Am. Rep. 104; Chicago, &c., R. R. 2 See an essay, " The Rights of Gra- 
 
 Co. V. Moss. 60 Miss. 1003; s. C. 45 tuitous Passengers on Railways," by 
 
 Am Rep. 428; Black v. Goodrich H. Campbell Black, Esq., of the St. 
 
 Trans. Co., 55 Wis. 319; s. c.42Am. Paul Bar, 20 Cent. Law Jour. 485, 
 
 Rep. 713 ; Shnver v. Sioux City, &c., June 19, 1885. 
 R. R. Co., 24 Minn. 506; s. c. 31 
 
§ 6o.J RULE AFFECTING RAILWAY CORPORATIONS. 1 85 
 
 to it, not occasioned by act of God or the public enemy, 
 although the owner accompanies the property.^ But in 
 order to this liability there must be a delivery of the bag- 
 gage to the carrier — a real bailment. The passenger must 
 wholly part with the possession of his luggage, or the 
 carrier will not be liable.* It is accordingly held that sleep- 
 ing and parlor car companies are not, in respect of their 
 passenger's luggage, either inn-keepers or common car- 
 riers, because the passenger in those cars does not sur- 
 render the possession of his goods.^ 
 
 Notices or conditions, stamped or printed upon a 
 baggage check, have no effect to limit the carrier's liabil- 
 ity, the check being no evidence of any contract. Such 
 notices do not bind the passenger, unless his assent to 
 the condition is shown, and accepting the check is no 
 evidence of such assent* It is not contributory negli- 
 gence on the part of a passenger to. take the checks that 
 a baggage-master gives him, without examining them.® 
 
 1 Cole ^z. Goodwin, 19 Wend. 251; ^ Thomp. on Carriers, 530 § 20; 
 
 S. C. 32 Am. Dec. 470, and the note ; Welch v. Pullman Palace Car Co., 16 
 
 Bomar v. Maxwell, 9 Humph. (Tenn.) Abb. Pr. (N. S.) 354; Pullman Palace 
 
 620; S. C. 51 Am. Dec. 682; Peixotti Car Co., 73 111. 365. See, also, Mac- 
 
 V. McLaughlin, i Strobh. 468; S. C. klin e'. New Jersey Steamboat Co., 7 
 
 47 Am. Dec. 563 ; Tower v. Utica, Abb. Pr. (N. S.) 236 ; Morris v. Third 
 
 &c., R. R. Co., 7 Hill, 47; S. C. 42 Ave. R. R. Co., 23 How. Pr. 345, and 
 
 Am. Dec. 36 ; Logan v. Ponchartrain, " The responsibility of the Pullman 
 
 II Robinson (La.), 24; S. C. 43 Am. Palace Car Company for thefts from 
 
 Dec. 199; Dibble v. Brown, 12 Ga. passengers," by Sterling B. Toney, 
 
 217; S. C. 56 Am. Dec. 460; Cam- Esq., of the Louisville Bar, XIX Am. 
 
 den, &c., R. R. Co. v. Baldauf, 16 Law Rev. (N. S.) 204, March-April, 
 
 Penn. St. 67; S. C. 55 Am. Dec. 481; 1885, in which this question is thor- 
 
 Woodsw. Devin, 13 111. 747; S. C. 56 oughly discussed. 
 
 Am. Dec. 483. * Wilson v. Chesapeake, &c., R. R. 
 
 ^ Wilkins v. Earl, 3 Rob. 369; S. c. Co., 21 Gratt. 654; Burnhamw. Grand 
 
 19 Abb. Pr. 196; Tower v. Utica, Trunk R. R. Co., 63 Me. 298; S. C. 
 
 &c., R. R. Co., 7 Hill, 47; S. C. 42 18 Am. Rep. 220; Brown z/. Eastern, 
 
 Am. Dec. 36; Weeks v. New York, R. R. Co., 11 Cush. 97; Rawson v. 
 
 &c., R. R. Co., 9 Hun, 671 ; S. C. 72 Penn. R. R. Co ,48 ^. Y. 212 ; s. C. 
 
 N. Y. 50; The R. E. Lee, 2 Abb. (U. 8 Am. Rep. 543 ; Madan v. Sherard, 
 
 S.) 49; Clark v. Bums, 118 Mass. 73 N. Y. 329; s. C. 29 Am. Rep. 153. 
 
 277 ; Merriam v. Hartford, &c , R. R. ' Isaacson v New York, &c , R. R. 
 
 Co., 20 Conn. 354; s. c. 52 Am. Dec. Co., 94 N. Y. 278; s. C. 46 Am. Rep. 
 
 344; Railroad Co. v. Barrett, 36 Ohio 142. 
 St. 452 
 
1 86' RULE AFFECTING RAILWAY CORPORATIONS. [§ 6r» 
 
 If the baggage miscarries and the passenger is thereby 
 injured, he may have his action ; and, when a passenger 
 leaves the train without claiming his baggage, such aa 
 act on his part is not negligence which absolves the car- 
 rier from liability f and, upon the other hand, when a pas- 
 senger upon arriving at his destination, instead of trusting 
 the carrier, as he might lawfully do, under the doctrine of 
 the case just cited, goes forward to the baggage car, im- 
 mediately upon alighting from the train, in order to look 
 up his luggage, and assist about it, and while so engaged, 
 is run over and killed by the negligence of the defend- 
 ant's servants, it is held that an action will lie against 
 the company, and that a plea of contributory negligence 
 is bad. Negligence is not imputable to one who looks 
 after his property in a lawful manner in such a case as 
 this.^ 
 
 § 6i. Traveling on Sunddy. — In some of the New 
 England courts it has been held that when one travels 
 on Sunday, in violation of a statute which prohibits 
 traveling on the Lord's day, except from necessity or 
 charity, no action can be maintained for an injury 
 thereby sustained. The violation of law involved in 
 traveling on Sunday is, in those States, a sufficient de- 
 fense to an action for damages for an injury resulting 
 from the defendant's negligence. In Massachusetts the 
 courts seem to proceed upon the theory of contributory 
 negligence. Nothing could, however, be more illogical 
 or judicially absurd. " The Massachusetts decisions 
 upon the Sunday law," says Mr. Justice Grier, " depend 
 upon the peculiar legislation and customs of that State 
 more than upon any general principles of justice or 
 law."^ In actions of this kind, the violation of the 
 
 » Gary v. Cleveland, &c., R. R. Co., » Philadelphia, &c., R. R. Co. v. 
 29 Barb. 47. Towboat Co., 23 How. (U. S.), 209. 
 
 * Ormond v. Hayes, 60 Texas, 1 80. 
 
§ 6l.J RULE AFFECTING RAILWAY CORPORATIONS. 187 
 
 Sunday law is, upon familiar grounds, to be regarded as 
 an entirely collateral violation of law. It is, in no 
 proper sense, a proximate cause of the injury com- 
 plained of, and upon the general principles of law 
 applicable to these cases, is no more a defense to an 
 action for negligence than that the plaintiff is guilty of 
 violating the revenue laws, or has been a smuggler, or 
 is, upon general principles, a bad and unworthy person. 
 It is not geperally necessary for the plaintiff to estab- 
 lish the fact that he is a nice man, when he has been 
 hurt through the carelessness of a railway company ; 
 and that his character is not what it might be, is just 
 as good a defense to such an action, in justice and 
 right reason, as that he is riding in the cars on a 
 Sunday.^ But, notwithstanding the indefensibility of 
 such a rule, it is, nevertheless, stoutly maintained. The 
 earliest case in which it was declared, is Bosworth v. 
 Inhabitants of Swansey,* wherein the opinion was writ- 
 ten by Chief Justice Shaw. In this case it is held that 
 a person who is injured by reason of a defect in a 
 highway, over which he is traveling on secular business, 
 on Sunday, cannot recover of the town, without proof 
 that he is traveling from necessity or charity, the bur- 
 den being on him to show that his own fault did not 
 concur in causing the injury.* In Stanton v. Metro- 
 politan Street Railway Co.,* the rule was applied to the 
 case of one riding upon a street car upon the Sabbath 
 day ; and it was held that such a passenger, who was rid- 
 
 ' Sutton V. Town of Wauwatosa, ^ 10 Mete 363 ; s. C. 43 Am. Dec. 
 
 29 Wis. 21; S. C. 9 Am. Rep. 534; 441. 
 
 Schmid v. Humphrey, 48 Iowa, 652 ; " In Jones v. Inhabitants of Ando- 
 
 s. C. 30 Am. Rep. 414 ; Baldwin v. ver, 10 Allen, r8, a similar case was 
 
 Barney, 12 R. I. 392 ; s. C 34 Am. similarly decided. 
 
 Rep. 670; Cooley on Torts, §157; * 14 Allen, 485. 
 Wharton on Neg., § 331. 
 
i88 RULE affectiiStg railway corporations. [§ 6 1. 
 
 ing for the purpose of making a visit, was violating the 
 law, and therefore was not entitled to redress for an 
 injury which he would not have received but for such 
 violation.^ So, also, in cases of accident to persons 
 traveling, on Sunday, upon railway trains, unless the 
 plaintiff can make it appear that his errand was one of 
 necessity or charity, he cannot recover.^ The logic of 
 these cases, is that a person who receives an injury while 
 traveling, which he could not have received if he had 
 not been traveling, contributes * to the injury by the act 
 of traveling, and that he is, therefore, bound to show 
 his right to travel, in order to show that his own fault did 
 not concur in causing his injury. The validity of this 
 reasoning depends on the validity of the assumption that 
 the act of traveling is a contributory or concurring cause 
 of injury. 'Is the assumption just? Is not the act of 
 traveling to be regarded rather as a condition than as a 
 cause of the injury ? or, to state the question in another 
 way, is not the injury to be regarded rather as an incident 
 than as an effect of the traveling ? * This is peculiarly a 
 Massachusetts doctrine,® but it also obtains in Vermont* 
 and in Maine.'' It is, however, denied with emphasis in 
 
 1 See, also, Hamilton v. Boston, 14 plaintiff's illegally traveling on Sunday 
 Allen, 475, for an extended discussion "necessarily contributed " to his in- 
 of this rule and a history of the Mas- jury. But compare McGrath v. Mer- 
 sachusetts legfislation in point. win, ii2 Mass. 467; S. C. 17 Am. 
 
 2 Feital v. Middlesex R. R.Co., 109 Rep. 119. 
 
 Mass. 398 ; S. C. 12 Am. Rep. 720. * Baldwin v. Barney, 12 R. I. 392 ; 
 
 [Compare, with this case, Bennett v. S. C. 34 Am. Rep. 670. 
 Brooks, 9 Allen, 118; Commonwealth ^ phila., &c., R. R. Co. v. Phila., 
 
 •V. Sampson, 97 Mass. 407 ; and Ham- &c., Towboat Co., 23 How. (U. S.), 
 
 ilton V. Boston, 14 Allen, 475]. Doyle 209. 
 
 ■V. Lynn, &c., R. R. Co., 118 Mass. « Johnsons. Irasburgh, 47 Vt. 28; 
 
 19s ; S. C. 19 Am. Rep. 431 ; Bucher S. C. 19 Am. Rep. in. 
 'v. Fitchburg R. R. Co, 131 Mass. ' HincRleyw. Penobscot, 42 Me. 89; 
 
 156; S. C. 41 Am. Rep. 216; Day z/. Cratty v. Bangor, 57 Me. 423; Mor- 
 
 Highland St. R. R. Co., 135 Mass. ton w. Gloster, 46 Me. 420 ; Bryant w. 
 
 113; s. c. 46 Am. Rep. 447. Biddeford, 39 Me. 193; Davidson v. 
 
 " In Hall V. Corcoran, 107 Mass. Portland, 69 Me. 116; s. C. 31 Am. 
 
 351, it is expressly declared that the Rep. 253. 
 
§ 62.] RULE AFFECTING RAILWAY CORPORATIONS. 1 89 
 
 Rhode Island,* and in New Hampshire,^ and finds no 
 countenance outside of New England,* 
 
 The question of the effect of Sunday traveling, upon 
 the plaintiff's right to recover in case of injury through 
 the negligence of another, has, in the courts of New 
 England, very frequently arisen in actions brought 
 against towns or cities for defects in highways. These 
 cases are considered in the following chapter.* This 
 defense has also occasionally availed the railway corpora- 
 tions of New England in actions brought against them 
 for injuries to persons at railway crossings.® Mr. Irving 
 Browne, in his Humorous Phases of the Law,* has set 
 forth the law upon this general question in an entertain- 
 ing and instructive fashion. ^The industrious reader will 
 refer to it. 
 
 (B.) As TO Strangers. 
 
 § 62. Duty of a public carrier to persons lawfully 
 upon its premises, but who are neither passengers nor 
 employees. — The common carrier of passengers is, as we 
 
 ^ Baldwin v. Barney, 12 R. L 392; monwealth v. Louisville, &c., R. R. 
 
 S. C. 34 Am. Rep. 670. Co., 80 Ky. 291 ; S. C. 44 Am. Rep. 
 
 2 Dutton V. Weare, 17 N. H. 34; S. 475 ; Phila., &c., R. R. Co. v. Lehman, 
 
 C. 43 Am. Dec. 590 ; Corey v. Bath, 56 Md. 409 ; S. C 40 Am. Rep. 41 5 ; 
 
 35 N. H. 531 ; Norris v. Litchfield, Yonoski v State, 79 Ind. 393 ; S. C. 
 
 35 N. H. 271; Frost V. Hull, 4 N. 47 Am. Rep. 614; McGatrick v. Wa- 
 
 H. 153; Allen v. Deming, 14 Id. 133. son, 4 Ohio St. 566; State v. Goff, 20 
 
 ' Phila., &c., R. R. Co. v. Phila. Ark. 289; Whitcomb v. Oilman, 35 
 
 Towboat Co., 23 How. (U. S.) 209; Vt. 297; Connolly v. City of Boston, 
 
 Sutton V. Wauwatosa, 29 Wis. 21; 117 Mass. 64; s. C. 19 Am. Rep. 
 
 S. C. 9 Am. Rep. 534; Mohney v. 396; Gorman v. Lowell, 117 Mass. 
 
 Cook, 26 Penn. St. 342 ; Schmid v. 65 ; Smith v. Boston & Maine R. R. 
 
 Humphrey, 48 Iowa, 652; S. C. 30 Co., 120 Mass. 490; S. C. 21 Am. 
 
 Am. Rep. 414; Carroll v. Staten Rep. 538; McClary v. Lowell, 44 
 
 Island R. R. Co., 58 N. Y. 126; S. C. Vt. 116; S. C 8 Am. Rep. 366; 
 
 17 Am. Rep. 221; Platz v. City of Grossman z/. City of Lynn, 121 Mass. 
 
 Cohoes, 89 N. Y. 219; S. C. 42 Am. 301. 
 
 Rep. 286. Compare, also. State v. * Vide, % 81 infra. 
 
 Railroad Co., 24 West Va. 783; S. ' Smith v. Boston, &c., R. R. Co., 
 
 C. 49 Am. Rep. 290; State v. Balti- 120 Mass. 490, supra. See infra, 
 
 more, &c., R. R. Co., 15 West Va. upon this point. 
 
 362; S. C. 36 Am. Rep. 803; Com- « Chap. 11. 
 
1 90 RULE AFFECTING RAILWAY CORPORATIONS. [§ 62. 
 
 have seen,* bound to exercise great or extraordinary care 
 to the end that those who entrust themselves to him as 
 his passengers may be safe, but as to all other persons 
 with whom he deals, the carrier is not held to so high a 
 degree of responsibility. Toward them he must exercise 
 that measure of circumspection which we call ordinary care, 
 and which, as a rule, all men are held bound to exercise 
 toward all other men with whom they come in contact. 
 When one comes lawfully upon my premises, I owe him 
 the duty of ordinary care ;^ but I owe but slight care to a 
 mere trespasser.* A railway company, accordingly, is 
 bound to exercise ordinary care toward all persons who 
 come about its depots, or shops, or yards, or otherwise 
 upon its premises, upon their proper business. There is 
 an implied invitation to the public to do business with 
 the railroad, and out of this implied invitation arises, on 
 the one hand, the right which the public has to go upon 
 the premises of the railway company, in the usual manner, 
 for purposes of business, and, on the other hand, the duty 
 of the company toward persons of this description.* 
 
 When persons cross a railway track at a regular cross- 
 ing upon the highway, they are neither passengers nor 
 employees, nor are they upon the premises of the railway 
 company by virtue of the implied invitation to which I 
 
 ^%io, supra. R. Co., 59 Mo. 27; s. C. -21 Am. 
 
 2 Toledo, &c., R. R. Co. v. Crush, Rep. 371 ; Louisville, &c., R. R. Co. 
 
 67 111. 262; S. C. 16 Am. Rep. 618; v. Wolfe, 80 Ky. 82 ; Cooley on 
 
 Tobin V. Portland, &c., R. R. Co., Torts, 604-607; Bennett v. Louis- 
 
 59 Me. 183; S. C. 8 Am. Rep. 415; ville, &c., R. R Co., 102 U.S. 577. 
 
 McDonald v. Chicago, &c., R. R. ' Pittsburgh, &c., R. R. Co. v. 
 
 Co., 26 Iowa, 124 (by Dillon, C. J.) ; Bingham, 29 Ohio St. 365; S. C. 23 
 
 Caswell V. Boston, &c., R. R. Co., Am. Rep. 751; Sweeny v. Old Col- 
 
 98 Mass. 194; Campbells. Portland ony, &c., R. R. Co., 10 Allen, 372; 
 
 Sugar Co., 62 Me. 552; s. c. 16 Am. Gillis v. Pennsylvania R. R. Co., 59 
 
 Rep. 503; Wendell v. Baxter, 12 Penn. St. 129; Seveiy v. Nickerson, 
 
 Gray, 494; Pittsburgh v. Grier, 22 120 Mass. 306; s. C. 21 Am. Rep. 
 
 Penn. St. 54; S. C. 60 Am. Dec. 65; 514; Illinois, &c., R. R. Co. v. God- 
 
 McKone v. Michigan, &c., R. R. frey, 71 111. 500; s. C. 22 Am. Rep. 
 
 Co., 51 Mich. 6qi; S. C. 47 Am. 112. See, also, § 17, j«;>/-a. 
 
 Rep. 596 ; Doss v. Missouri, &c., R. •• See the cases, supra. 
 
§ 63.] RULE AFFECTING RAILWAY CORPORATIONS. I9I 
 
 have just referred, and under which, persons so upon the 
 company's premises are protected, but, nevertheless, they 
 are lawfully upon the track, and the railway company is 
 bound to exercise toward them the full measure of ordi- 
 nary care. This is a duty not springing out of any con- 
 tract, express or impHed, as in the relations to which I 
 have referred, but an obligation imposed upon the rail- 
 way company by the rules of civil society. The passen- 
 ger has his action for breach of contract, and so has the 
 employee, when either of them suffer by reason of the 
 -company's neglect,^ but, when one is carelessly run down 
 at a crossing, by a railway train, he brings an action 
 sounding in tort, because the company has, by its negli- 
 gence, violated one of the rules of civil order. The rail- 
 way company owes him the duty of ordinary care, and 
 when it fails to exercise that measure of carefulness, the 
 injured person may have his action. 
 
 § 63. Duty of the public at railway crossings. — 
 When one approaches a point upon the highway, where 
 a railway track is crossed upon the same level, it is his 
 plain duty to proceed with caution, and if he attempts to 
 cross the track, either on foot or in a vehicle of any de- 
 scription, he must exercise, in so doing, what the law re- 
 gards ordinary care under the circumstances. He must 
 assume that there is danger, and act with ordinary pru- 
 dence and circumspection upon that assumption." The 
 
 • Each may, moreover, of course, Beale, 73 Penn. St. 504; S. C. 13 Am. 
 have an action in tort. Rep. 753; Karle v. Kansas, &c., R. 
 
 * Daniel v. Metropolitan Ry. Co., 5 R. Co., 55 Mo. 476 : Kennedy v. North 
 H. L. 45; S. C. L. R. 3 C. B. 591 ; Mo. R. R. Co., 36 Id. 351 ; Whalen v. 
 State V. Maine Central R. R. Co., 76 St. Louis, &c., R. R. Co., 60 Id. 323; 
 Me. 357; S. C. 49 Am. Rep. 622; McGrath z/. Hudson River R. R. Co., 
 Phila., &c., R. R. Co. v. Stebbing, 62 32 Barb. 144; S. C. 19 How. Pr. 211 ; 
 Md. 504; Cleveland, &c., R. R. Co. 59 N. Y. 468; 17 Am. Rep. 359; 
 ■V. Crawford, 24 Ohio St. 631; S. C. 15 Bernhardt v. Rensselaer, &c., R. R. 
 Am. Rep. 633 ; Louisville, &c., R. R. Co., i Abb. App. Dec. 131 ; S. c. 32 
 Co. V. Goetz, 79 Ky. 442 ; s. C. 42 Barb. 165; 18 How. Pr. 427 ; 19 How, 
 Am. Rep. 227; Penn. R. R. Co. v. Pr. 199; Beisegel v. New York, &c.. 
 
192 RULE AFFECTING RAILWAY CORPORATIONS. [§ 63. 
 
 requirements of the law, moreover, proceed beyond the 
 featureless generality that one must do his duty in this 
 respect, or must exercise ordinary care under the circum- 
 stances. The law defines precisely what the term " ordi- 
 nary care under the circumstances " .shall mean in these 
 cases. In the progress of the law in this behalf, the ques- 
 tion of care at railway crossings as affecting the traveler, 
 is no longer, as a rule, a question for the jury. The 
 quantum of care is exactly prescribed as matter of law. 
 In attempting to cross, the traveler must listen for sig- 
 nals, notice signs put up as warnings, and look attentive- 
 ly up and down the track. A multitude of decisions of 
 all the courts enforce this reasonable rule.^' He must 
 
 R.R.Co., 14 Abb. Pr. (N. S.) 29; S. C. 
 40 N. Y. 9; Eaton v. Erie Ry. Co., 51 
 N. Y. 544; Maginnis v. New York, 
 &c., R. R. Co., 52 Id. 215; Central, 
 &c., R. R. Co. V. Moore, 24 N.J. Law, 
 824; Indianapolis, &c., R. R. Co. v. 
 Stout, 53 Ind. 143; Mercer v. New 
 .Orleans, &c., R. R. Co., 23 La. Ann, 
 264; Cnicag«D, &c., R. R. Co. v. Ja- 
 cobs, 63 111. 178; Id. V. Kusel, 63 Id. 
 180; Continental Improvement Co. v. 
 Stead, 95 U. S. 161 ; Cooley on Torts, 
 
 673- 
 
 1 Reading, &c., R. R. Co. v. Ritchie, 
 102 Penn. St. 425 ; Gothard v. Ala., 
 &c., R. R. Co., 67 Ala. 114; Chica- 
 go, &c., R. R. Co. V. Dimick, 96 111. 
 42; Penn. R. R. Co. v. Rudel, 100 Id. 
 603 ; Peoria, &c., R. R. Co. v. Clay- 
 berg, 107 Id. 644; Terre Haute, &c., 
 R. R. Co. V. Clark, 73 Ind. 168 ; Pitts- 
 burgh, &c., R. R. Co. V. Martin, 82 
 Id. 476; Saverenz v. Chicago, &c., R. 
 R. Co., 56 Iowa, 689; Funston v. Id., 
 61 Id. 452 ; Wheelwright v. Boston, 
 &c., R. R. Co., 135 Mass. 225 ; John- 
 son V. Chicago, &c., R, R. Co , 77 Mo. 
 546; Galveston, &c., R. R. Co. v. 
 Bracken, 59 Texas 71 ; Id. v. Graves, 
 59 Id. 330; Louisville, &c., R. R. Co. 
 V Goetz, 79 Ky. 442 ; Field v. Chica- 
 go, &c., R. R. Co., 4 McCrary, 593; 
 TuUy V. Fitchburg R. R. Co., 134 
 Mass. 499; Kelly 7/. Hannibal, &c., R. 
 
 R. Co., 75 Mo. 138; Powell v. Mo. 
 Pac. R. R. Co., 76 Id. 80; Randall v 
 Conn., &c., R. R. Co., 132 Mass. 499; 
 Schofield V. Chicago, &c., R. R. Co., 
 2 McCrary, 268 ; Plummer v. Eastern 
 R. R. Co., 73 Me. 591 ; Haas v. Grand 
 Rapids, &c., R. R. Co. 47 Mich. 401 ; 
 Penn. &c., R. R. Co. -v. Rathgeb, 32 
 Ohio St. 66; Henze v. St. Louis, &c., 
 R. R. Co., 71 Mo. 636; So. Ala. R. 
 R. Co., V. Thompson 62 Ala. 494; 
 Baltimore, &c.. R. R. Co., v. White- 
 acre, 35 Ohio St. 627; Dublin, &c., 
 Ry. Co. V. Slattery, 3 L. R. App. Cas. 
 1 1 55; Stubley 7/. London, Ry. Co., L. 
 R. I Exch. 13; Cliff V. Midland Ry. 
 Co. 5 Q. B. 258; Telferz/. North, &c., 
 R. R. Co., 30 N. J. Law 138; State 
 •V. Manchester R. R. Co., 52 N. H. 
 258; Webb t/. Portland, &c. R. R. 
 Co., 57 Me. 117; McCall v. R.R. Co., 
 54 N. Y. 642; Gillespie v. City, 54 Id. 
 468; Behon V. Baxter, 54 Id. 245; 
 Penn. R. R. Co. v. Beale, 73 Penn. 
 St. 504; S. C. 13 Am. Rep. 753; Wil- 
 son V. Charlestown, 8 Allen 138; Al- 
 lyn V. Boston, &c., R. R Co., 105 
 Mass. 77 ; DeArmand v. New Orleans, 
 &c., R. R. Co.. 23 La. Am. 264; Wilcox 
 V. Rome. &c., R. R. Co., 39 N. Y. 358; 
 Baxter v. Troy, &c., R. R. Co., 41 N. 
 Y. 502; North Penn. R. R. Co. v, 
 Heileman, 49 Penn. St. 60 ; Hanover, 
 &c., R. R. Co. V. Coyle, 55 Id. 396; 
 
§ 63.] RULE AFFECTING RAILWAY CORPORATIONS. 1 93 
 
 ■even come to a halt for this purpose;^ but he is not re- 
 quired to get out of his wagon and go forward on foot 
 for the purpose of looking,** especially when such a 
 course would' not have prevented the collision,* but would 
 rather have exposed the traveler to the very peril it was 
 designed to avoid* In Pennsylvania a contrary rule has 
 been laid down in at least one case ; ^ also in Minnesota.* 
 If a traveler, by looking, could have seen an approaching 
 •train in time to escape, it will be presumed, in case he is 
 injured by collision, either that he did not look, or, if he 
 did look, that he did not heed what he saw. Such con- 
 duct is held negligence per seJ 
 
 St. Louis, &c., R. R. Co v. Manly, 58 
 111. 300 ; Illinois. &c. . R. R. Co. z/. Bach- 
 es, 55 Id. 379; Chicago, &c., R. R. Co. 
 V. Sweeney, 52 Id.325 ; Id. v. Gretzner, 
 46 Id. 74; Penn. Canal Co. v. Bent- 
 ley, 66 Penn. St. 30; Lehigh Valley R. 
 R. Co. V. Hall, 61 Id. 361 ; Baltimore. 
 &c., R. R. Co. V. Breinig, 25 Md. 378; 
 Lake Shore, &c., R. R. Co. v. Miller, 
 25 Mich. 274; Kelly z*. Hendrie, 26 Id. 
 25s; Bellefontaine, &c., R. R. Co. v. 
 Hunter, 33 Ind. 365; Brown w. Mil- 
 waukee, &c., R. R.Co.,22 Minn. 165; 
 Ernst V. Hudson, &c., R. R. Co., 39 
 N. Y. 61 ; Stackus v. N. Y. &c.. R. R. 
 Co., 79 N. Y. 464; Chicago, &c., 
 R. R. Co. V. Kusel, 63 111. 180 
 (note); Id. v. McKean, 40 Id. 218; 
 Id. V. Still, 19 Id. 499; Railroad 
 Co. V. Houston, 95 U. S. 697; 
 Linfield v. Old Colony R. R. Co., 10 
 Cush. 562; Chicago, &c., R. R. Co. 
 V. Hatch, 79 111. 137; Whitney v. 
 Maine, &c.. R. R. Co., 69 Me. 208; 
 Grows V. Id., 67 Id. 412; Bohan v. 
 Milwaukee, &c., R. R. Co., 58 Wis. 
 30; Copley V. New Haven, &c., R. 
 R. Co., 136 Mass. 6; Wendell v. N. 
 Y., &c., R. R. Co., 91 N. Y. 420; 
 Baughman v. Shenango, &c., R. R. 
 Co , 92 Penn. St. 335 ; s. C. 37 Am. 
 Rep. 690 ; Schofield v. Chicago, &c., 
 R. R. Co., Sup. Ct. U. S., May 4. 
 1885, 5 Sup. Ct. Rep. 1125; S. C. 32 
 Alb. Law Jour. 72. 
 » Wilds V. Hudson, &c., R. R. Co., 
 
 13 
 
 29 N. Y. 315; Schulz V. Penn. R. R. 
 Co., 5 Reporter, 376 ; Penn. Canal Co. 
 V. Bentley, 66 Penn. St. 30; Penn. 
 R. R. Co. V. Beale, 73 Penn. St. 504; 
 S. C. 13 Am. Rep. 753; Id. v. Weber, 
 76 Penn. St. 157. Compare Baugh- 
 man V. Shenango, &c., R. R. Co., 92 
 Penn. St. 335 ; S. C. 37 Am. Rep 690. 
 Co«/ra,Leavenworth,&c.,R. R. Co. v. 
 Rice, 10 Kan. 426 ; Davis v. N. Y., &c., 
 R.R.Co.,47 N.Y. 400. See. also, Cleve- 
 land, &c., R. R. Co. V. Crawford, 24 
 Ohio St. 631 ; S. C. IS Am. Rep. 633, 
 and Cosgrove v. New York, &c., R. R. 
 Co., 87 N.Y. 88; S.C 41 Am. Rep. 355. 
 
 2 Pittsburgh, &c.. R. R. Co. v. 
 Wright, 80 Ind. 182; Davis v. N. Y., 
 &c , R. R. Co., 47 N. Y. 400. 
 
 ' Penn. R. R. Co. v, Ackerman, 74 
 Penn. St. 265 ; McGuire 7/. Hudson. &c., 
 R. R. Co., 2 Daly, 761 ; Cleveland. &c., 
 R.R. Co. V Crawford, 24 Ohio St. 361 ; 
 S. c. 15 Am. Rep. 633; Weber t/. N. 
 Y , &c., R. R. Co., 58 N. Y. 451 ; S, 
 c. 67 Id. 587. 
 
 * Duffy V. Chicago, &c., R. R. Co., 
 32 Wis. 269. 
 
 5 Penn., &c., R. R. Co. v Beale, 73 
 Penn. St. 504; S. C. 13 Am. Rep. 753. 
 
 « ShaberT/. St. Paul R. R., 28 Minn. 
 103. 
 
 ' Chicago, &c., R. R. Co. v. Dame- 
 rell, 81 111. 450: Rockford. &c., R. R. 
 Co.,w. Byam, 80 Id. 528; Morse v. 
 Erie Ry. Co., 65 Barb 490; Haring 
 V. N. Y., &c., R. R. Co., 13 Id. 9; 
 
194 RULE AFFECTING RAILWAY CORPORATIONS. [§ 63, 
 
 The strictness of this rule is relaxed in some jurisdic- 
 tions. Thus, in Texas it is held not contributory negli- 
 gence per se, in the absence of a statutory requirement^ 
 not to look up and down the track upon attempting to 
 cross it;^ and so in Missouri.^ But while it is not 
 negligence not to let down a buggy top in looking about 
 at a crossing,* yet, where a person approaches a crossing 
 in a covered wagon, having an umbrella hoisted inside as 
 an additional protection from rain falling at the time,' 
 and looked only straight ahead, it was held negligence.* 
 And, where a traveler was so wrapped up to protect 
 himself from cold, that he could not hear distinctly, he 
 was held under obligation to exercise especial care to 
 overcome the temporary disability.^ ♦ 
 
 Benton v. Central R. R. Co., 42 Iowa, 
 192; Haines v. Illinois, &c., R. R. Co., 
 41 Id. 227; New Orleans, &c., R. R. 
 Co. V. Mitchell, 52 Miss. 808 ; Gordon 
 V. Erie Ry. Co., 45 N. Y. 660 ; Rey- 
 nolds V. N. Y., &c., R. R. Co., 58 Id. 
 248 ; Cleveland, &c., R. R. Co. v. 
 Elliott, 28 Ohio St. 340; Baltimore, 
 &c., R. R. Co. V. Whittaker, 24 Id. 
 642; Marietta, &c.,R. R. Co. v. Picks- 
 ley, 24 Id. 654; Lake Shore, &c., R. 
 R. Co. V. Miller, 25 Mich. 274 ; Id. w. 
 Sunderland, 2 Bradw. 307 ; Wilcox v. 
 Rome, &c., R. R. Co., 39 N. Y. 359; 
 Griffin v. N. Y., &c., R. R. Co., 40 
 Id. 34 ; Davis v. Id., 47 Id. 400 ; Biit- 
 terfield v. West., &c.. R. R. Co., 10 
 Allen, 532 ; Allyn v. Boston, &c., R. 
 R. Co., 105 Mass. 77 ; Wheelock v. 
 Id., 105 Id. 203 ; Fletcher v. Atlantic, 
 &c., R. R. Co., 64 Mo. 484; Toledo, 
 &c., R. R. Co. V. Goddard, 25 Ind. 
 185 ; Bellefontaine, &c., R. R. Co. v. 
 Hunter, 33 Id. 356; North Penn. R. 
 R. Co. V. Heileman. 49 Penn. St. 60; 
 Penn. R. R. Co. v. Beale, 73 Id. 504; 
 Baltimore, &c., R. R. Co. v. State, 29 
 Md. 252 ; McCall v. Railroad, 54 N. Y. 
 642 ; Johnson v. Chicago, &c., R. R. 
 Co., 77 Mo. 546; Louisville, &c.,R. R. 
 Co. V. Goetz, 79 Ky. 442; s. c. 42 
 Am. Rep. 227 ; State v. Maine Cen- 
 tral R. R. Co., 76 Me. 357; s. c. 49 
 Am. Rep. 622; Daniel v. Metropoli- 
 
 tan Ry. Co., L. R. 3 C. B. 591 ; S. C. 
 5 H. L. 45. But, see contra, Lehigh 
 Valley R. R. Co. ^'.Hall, 61 Penn. St. 
 361 ; Penn. R. R. Co. v. Weber, 76 
 Id. 157; s. C. 18 Am. Rep. 407; 
 Weiss V. Penn. R. R. Co., 79 Penn. 
 St. 387 ; Cassidy v. Angell, 12 R. I. 
 447 ; S. C. 34 Am. Rep. 690, and the 
 note; Railroad Co. v. Gladmon, 15 
 Wall. 401 ; Id. V. Houston, 95 U. S. 
 697; Dublin, &c., Ry. Co. v. Slat- 
 tery, 3 App. Cas. 1155; 18 Albany 
 Law Jour. 144, 164, 184, 204; Cooley 
 on Torts, 673. 
 
 ' Texas, &c., R. R. Co. v. Chap- 
 man, 57 Texas, 75; Houston, &c., 
 R. R. Co. V. Wilson, 60 Id. 142. 
 
 ^ Zimmerman v. Hannibal, &c., R. 
 R. Co., 71 Mo. 476. 
 
 ' Stackus V. N. Y., &c., R. R. Co., 
 79 N. Y. 464. 
 
 * Sheffield v. Rochester, &c., R. 
 R. Co., 21 Barb. 339. 
 
 » Illinois, &c., R. R. Co. v. Ebert, 
 74 111. 399; Butterfield v. Western, 
 R. R. Co., 10 Allen, 532; Steves v. 
 Oswego, &c., R. R. Co., 18 N. Y. 
 422 ;' Chicago, &c., R. R. Co. v. Still, 
 19 111. 508; Hanover, &c., R. R. Co. 
 w. Coyle, 54 Penn. St. 396. See, also, 
 Elkins V. Boston, &c., R. R. Co., 115 
 Mass. 190; Harlan v. St. Louis, &c., 
 R. R. Co.. 64 Mo. 480 ; s. c. 65 Mo. 
 22 ; Moran v. Nashville, &c.,R. R. Co., 
 
§ 64. J RULE AFFECTING RAILWAY CORPORATIONS. 1 95 
 
 Upon this point the Supreme Judicial Court of Mas- 
 sachusetts says: " Plaintiff was acquainted with the 
 highway and railroad. If he had looked, he would have 
 seen the train. It came from the west, and for half a 
 mile west of the highway the track was in plain sight. 
 It was a stormy night ; raining, blowing hard from the 
 northwest, and snowing some. He had his hand up, 
 holding his hat on his head, and this prevented him from 
 seeing the train. He was listening for the cars ; his 
 attention was called to the subject, and he expected to 
 hear the bell or whistle, but there was no bell rung or 
 whistle blown. Plaintiff's neglect to use his own eyes 
 was palpable negligence."^ 
 
 § 64. Duty of the railway company at crossings. — 
 Statutes and municipal ordinances in every jurisdiction 
 prescribe specifically the duty of railway corporations in 
 respect to railway crossings ; ^ but no failure on the part 
 of the railroad company to do its duty will excuse any 
 one from using the senses of sight and hearing, upon 
 approaching a railway crossing, and, whenever the due 
 use of either senses would have enabled the injured 
 person to escape the danger, the injury is conclusive 
 evidence of negligence, without any reference to the 
 railroad's failure to perform its duty.* 
 
 SSTenn. 379; Phila.,&c., R. R. Co. R. Co. v. Clayberg, 107 111. 644; 
 
 V. Spearen, 47 Penn. St. 300. What Pittsburgh, &c., R. R. Co. v. Yundt, 
 
 amountofprecaution is necessary, and 78 Ind. 373; Railroad Co. v. Lowrey, 
 
 whether or not it is a duty to stop, or 61 Texas, 149. 
 
 look, upon Hearing a railway crossing, ^ Field v. Chicago, &c., R. R. Co., 
 
 is held to depend upon the circum- 4 McCrary, 573 ; Brendell v. Buffalo, 
 
 stances. Plummer v. East,, &c., R. &c., R. R. Co., 27 Barb. 534; Belle- 
 
 R. Co., 73 Me. 591; Shaber v. St. fontaine, &c., R. R. Co. v. Hunter, 
 
 Paul. &c.. R. R. Co., 28 Minn. 103. 33 Ind. 335 ; Toledo, &c., R. R. Co. 
 
 1 Butterfield v. Western, &c., R. R. v. Shuckman, 50 Id. 42 ; St. Louis, 
 Co., 10 Allen, 532. Confipare Scho- &c., R. R. Co. v. Mathias, 50 Id. 65 ; 
 field V. Chicago, &c., R. R. Co., Sup. Chicago, &c., R. R. Co. v. Notzki, 
 Ct, U. S.. May 4, 1885, 5 Sup. Ct.Rep. 66 111. 455; Moore v. Central R. R. 
 1125; S. C. xix Am. Law. Rev. 669. Co., 24 N. J. Law, 268; Runyon v. 
 
 2 See, on this point, Peoria, &c., R. Id., 25 Id. 557 ; Artz v. Chicago, &c.. 
 
196 RULE AFFECTING RAILWAY CORPORATIONS. [§ 64. 
 
 This rule is only an application of the elementary 
 principles of the law upon this subject. " It should and 
 must be regarded as very little short of recklessness for 
 any one to drive on the track of a railroad without first 
 looking and listening whether a mpving train is near. 
 The negligence of the defendant in this case was a failure 
 to ring the bell or sound the whistle. Yet, as the plaintiff 
 was also negligent, he cannot recover. Those living 
 near a railroad may, by contact, become careless, but they 
 will be no less chargeable with negligence in case they 
 rush on the track without looking and trying to ascertain 
 first whether danger is near. Failing in this respect, 
 they cannot be permitted to recover for injuries received. 
 It is a well settled principle of the common law, that he, 
 whose negligence has contributed in any essential degree 
 to the injury sustained, cannot maintain an action against 
 the party whose negligence has also contributed to the 
 injury. When negligence is the issue, it must be a case 
 of unmixed negligence. This rule is important — salutary 
 in its effects — and should be maintained in its purity. 
 The careless are thereby taught that if they sustain an 
 injury, to which their own negligence has contributed, 
 the law will afford them no redress." ^ 
 
 If a statute requires that a train should give a partic- 
 ular warning of its approach, travelers have a right to pre- 
 sume that the provisions of the statute will be regarded by 
 
 R. R. Co., 34 Iowa, 160; Havens v. Cleveland, &c., R. R. Co. v. Terry, 
 Erie Ry. Co., 41 N. Y. 296; Ernst v. 8 Ohio St., 570; North Penn. R. R. 
 Hudson, &c., R. R. Co., 39 Id. 61; Co. 7/. Heileman, 49 Penn St. 60; To- 
 S. C. 35 Id. 9; Wilcox V. Rome, &c., ledo, &c., R. R. Co. v. Riley, 47 111. 
 R. R. Co., 39 Id. 358; Baxter v. 514; Hinckley v. Cape Cod R. R. 
 Troy, &c., R. R. Co., 41 N. Y. 502; Co., 120 Mass. 257; Zeigler v. Rail- 
 Nicholson V. Erie Ry. Co., 41 Id. road Co., 5 S. C. 221; s. C 7 Id. 402. 
 525 ; Gorton v. Erie Ry. Co., 45 Id. » Dascomb v. Buffalo &c., R. R. 
 660; Harlan v. St. Louis, &c., R. R., Co., 27 Barb. 221 ; Schofield v. Chi- 
 64 Mo 480; s. C. 6s Id. 22; Chica- cago, &c., R. R. Co., Sup. Ct., U.S., 
 go, &c.. R. R. Co. V. Fears, 53 111. May 4, 1885, 5 Sup. Ct. Rep. 1125; 
 115; LaFayette, &c., R. R. Co. v. s. C. 32 Alb. Law Jour. 72: xix Am. 
 Huff^man, ,28 Ind. 287; Pittsburgh, Law Rev. 669. 
 &c., R. R. Co. V. Vining, 27 Id. 573; 
 
§ 64.] RULE AFFECTING RAILWAY CORPORATIONS. 1 97 
 
 train-men, and that in default of such warning, the speed 
 of the train will be reduced. Hence, if a railroad neglects 
 signals and lookout, when required either by statute or com- 
 mon law, it is liable, although the plaintiff was incautiously 
 on the track, if he kept a proper lookout,^ and in Ken- 
 tucky it is held to be the duty of a railway company to 
 give signals of warning to travelers on public highways at 
 crossings, although none are required by statute.^ 
 
 Neither does the negligence of a plaintiff constitute 
 a defense when the injury might have been avoided by 
 the exercise of ordinary care and caution on the part of 
 the railway company. Even a trespasser cannot be run 
 down with impunity simply because he is a trespasser,' 
 
 ' Baltimore, &c., R. R. Co. v. 
 Trainor, 33 Md. 542 ; Cliff v. Midland 
 Ry. Co.. L. R. 5 Q. B. 258; Wake- 
 field V. R. R. Co., 37 Vt. 330; Ernst 
 V. Hudson, &c., R. R. Co., 35 N. Y. 
 9; S. C. 39 N. Y. 61 ; 32 Barb. 159; 
 19 How. Pr. 205 ; 24 Id. 97, and 32 
 Id. 262. Renwick v. New York, &c., 
 R. R. Co., 36 N. Y. 132 ; Steves v. Os- 
 wego, &c., R. R. Co., 18 Id. 422; 
 Galena, &c., R. R. Co. v. Loomis, 
 13 111. 548; St. Louis, &c., R. R. Co. 
 V. Manly, 58 Id. 97; Reynolds v. 
 Hindman, 32 Iowa, 146; Artz v. 
 Chicago, &c., R. R. Co., 34 Id. 1 53 ; 
 Ohio, &c., R. R. Co. v. Eaves, 42 Mo. 
 288. See, also, St. Louis, &c., R. R. 
 Co. V. Terhune, 50 111. 151 ; Chicago, 
 &c., R. R. Co. V. Adler, 56 Id. 344. 
 
 2 Louisville. &c., R. R. Co. v. 
 Commonwealth, 13 Bush. 388; S. C. 
 26 Am. Rep. 205. See, upon this 
 point, for modified views, Carroll v. 
 Penn. R. R. Co., Sup. Ct. Penn., 12 
 Week. Notes Cas. 348 ; Ransom v. 
 Chicago, &c., R. R. Co.. Sup. Ct. 
 Wis , Jan. 13, 1885, 32 Alb. Law Jour. 
 15 ; Moore v. Phila, &c., R. R. Co., 
 Sup. Ct. Penn., Mch. 2, 1885, 32 Alb. 
 Law Jour. 98 ; Longenecker v. Penn. 
 R. R. Co., Sup. Ct. Penn., Feb. 6, 
 1885; xix Am. Law Rev. 331; McGrath 
 V. New York, &c., R. R. Co., 59 N. 
 Y. 468; s. C. 17 Am. Rep. 359, and 
 
 Mr. Thompson's note thereto; Hart 
 V. Chicago, &c., R. R. Co., 56 Iowa, 
 166; S. C. 41 Am. Rep. 93; Hough- 
 kirk V. President, &c., 92 N. Y. 219; 
 s. C. 44 Am. Rep. 370; Welsch v. 
 Hannibal, &c., R. R. Co., 72 Mo. 
 451 ; S. C. 37 Am. Rep. 440. 
 
 ' § 17, supra \ Brown v. Hannibal, 
 &c., R. R. Co., 50 Mo. 461 ; Gray v. 
 Scott, 66 Penn. St. 345; Trow v. 
 Vermont, &c., R. R. Co., 24 Vt. 487; 
 S. C. 58 Am. Dec. 191 ; Kerwhacker 
 V. Cleveland, &c., R. R. Co., 3 Ohio 
 St. 172; s. c. 62 Am. Dec. 246 ; Co- 
 lumbus, &c.,R. R. Co. V. Terry, 8 Ohio 
 St. 570; Louisville, &c., R. R. Co. v. 
 Collins, 2 Duv. (Ky.)ll4; Railroad Co. 
 V. State, 36 Md. 366 ; Rothe v. Milwau- 
 kee, &c., R. R. Co., 21 Wis. 256: Ma. 
 con, &c., R. R. Co. v. Davis, 18 Ga. 
 672; Lackawanna, &c., R. R. Co. v. 
 Chendworth, 52 Penn. St. 382; 
 Daley v. Norwich, &c., R. R. Co., 
 26 Conn. S91 : Butler v. Milwau- 
 kee, &c., R. R. Co., 28 Wis. 487; 
 Railroad Co. v. Whitton, 13 Wall. 
 270; Louisville, &c., R. R. Co. v. 
 Burke, 6 Cold. 45 ; Bridge v. Grand 
 June, &c., Ry. Co , 3 M. & W. 244; 
 Bunting v. Central R. R. Co., 16 Ne- 
 vada, 277; Holstine v. Oregon, &c., 
 R. R. Co., 9 Oregon. 163; Meyers v. 
 Chicago, &c., R. R. Co.. 59 Mo. 223 ; 
 Ream v. Pittsburgh, &c., R. R. Co., 
 
1 98 RULE AFFECTING RAILWAY CORPORATIONS. [§ 64. 
 
 But it is not negligence for an engineer not to stop his 
 train to avoid a collision with one crossing the track, in 
 case the train cannot be brought to a halt in time to 
 prevent the accident, except at risks which a prudent 
 engineer would not assume.^ ' 
 
 Where the plaintiff" had no previous knowledge of 
 the crossing and failed to learn of it in time to avoid the 
 collision, merely because he did not look out, his ignor- 
 ance was held no defense,^ but where a traveler is a 
 stranger, the question of his negligence at a crossing may 
 go to a jury.* And, where one supposed a regular 
 train had passed, when, in fact, being behind time, it had 
 not passed, a failure to look out was still held negligence.* 
 And trying to cross a track when a train is known to be 
 due, and when the slightest delay in getting across would 
 probably be fatal, is negligence.® 
 
 If the traveler rushes forward at such a high rate of 
 speed as to be unable to stop in time to avoid a collision 
 at a crossing, he will be regarded negligent,* and this 
 negligence may be so gross as to operate to excuse even 
 the gross negligence of the railway company.^ And if, 
 with an approaching train in full view, he undertakes to 
 reach the crossing and get over in advance of the train 
 
 49 Ind. 93; Wasmer v. Delaware, 'Palys v. Erie Ry. Co., 30 N; J. 
 
 &c., R. R. Co., 80 N. Y. 212; S. C. Eq. 604; Brooks v. Buflalo, &c., R. 
 
 36 Am. Rep. 608. r. Co., i Abb. App. Dec. 21 1; Rey- 
 
 Chicago, &c., R. R. Co. v. Gretz- nolds v. N. Y., &c., R. R. Co., 58 N. 
 
 ner, 46111. 74; Jones z/. North Car., y 248. 
 
 &c., R. R. Co., 67 N. C. 125 ; Phila., \ Gri'ppen v. New York, &c., R. R. 
 
 &c., R. R. Co. V. Spearen, 47 Penn. Co., 40 N. Y. 34; Salter v. Utica, 
 
 St. 300; Telfer z- Northern R. R. Co., &c., R. R. Co., 13 Hun 197; Kelly 
 
 30 N J. Law 188. ^ Hannibal. &c.. R. R. Co., 75 Mo. 
 
 Allyn V. Boston, &c., R. R. Co., ,38 • Powell z/. Missouri, &c., B. R. 
 
 105 Mass. 77. (--J, '76 Mo 80 
 
 •Cohen V. Eureka. &c., R. R. Co., i'Haring'w. New Yoric, &c., R. R.. 
 
 14 Nevada, 376. ,3 Barb. 9; Grows v. Maine, &c., R. 
 
 Toledo, &c., R. R. Co. f. Jones, r. Co., 67 Me. 100. But, see Hack- 
 
 76 IlL 311; Mahlen z/ Lake Shore, ford «,. New York, &c., R. R. Co.. 
 
 &c., R R. Co., 49 Mich. 585 See, 53 n. Y. 654; S. C. 43 How. Pr. 
 
 also, Phila., &c., R. R. Co. v. Carr, 99 222 
 Penn. St. 505. 
 
§ 64.] RULE AFFECTING RAILWAY CORPORATIONS. 1 99 
 
 by fast driving, it is negligence.^ So, it is held negli- 
 gence to attempt to drive a frightened horse toward a 
 ■crossing where an engine is standing.* But if, having 
 approached the crossing without negligence so near as 
 to render retreat apparently impossible, the traveler 
 resorts to fast driving as the only practicable means of 
 ■extricating himself from the danger of his situation, such 
 a course may be justifiable on the ground of prudence,* 
 ■even though, had he not been overcome with terror at 
 the sudden peril in which he found himself, he might 
 have acted more wisely.* 
 
 Flagmen or other servants of the company are pre- 
 sumed to act as agents in giving notice, and where a per- 
 son attempts to cross the track, having been notified or 
 invited to cross by such an agent, even though it may be; 
 in view of an approaching train, he may, in case he is 
 injured, recover damages therefor from the company.^ 
 
 But a flagman, stationed at a crossing to look out for 
 trains, and give warning of their approach, if run over by 
 a train, cannot recover.* It is not/>er se, however, con- 
 tributory negligence to attempt to cross a track after a 
 notice that it is not safe,' nor is it negligence on the part 
 
 1 Grows V. Maine, &c., R. R. Co., R. I Q. B. 277; Chaffee v. Boston, 
 
 67 Me. 100; Pittsburgh, &c., R. R. &c., R. R. Co., 104 Mass. 108; Whee- 
 
 ■Co. z/. Taylor, 104 Penn. St. 306; S.C. lock v. Id., 105 Id. 203; Warren v. 
 
 49 Am. Rep. 580 ; Chicago, &c., R. R. Fitchburg, R. R. Co., 8 Allen, 227 ; 
 
 Co. V. Jacobs, 63 III. 1 78 ; Id. v. Kusel, Spencer v. Illinois, &g., R. R. Co., 29 
 
 ^3 Id. 180, (note); Stout v. Indian- Iowa, 55; Sweeney v. Old Colony, 
 
 apolis, (fee, R. R. Co., i Wils. R. R. Co., 10 Allen. 368; Northeast- 
 
 (Ind'pls.) 80; S. C. su6 nom., Indian- em, Ry. Co. v. Wanless, 43 L. J. (Q. 
 
 apolis, &c., R. R. Co. V. Stout, 41 B.) 185 ; s. C. L. R. 7 H. L. 12, 30 L. 
 
 Ind. 149, and 53 Ind. 143. T. (N. S.) 275 ; Wanless v. North- 
 s' Louisville, &c., R. R. Co. V. eastern Ry. Co., 25 L. T.(N.S.) 103; 
 
 Schmidt, 81 Ind. 264; Pittsburgh, &c., S. C. L. R. 6 Q. B. 481; L R. i Q. 
 
 R. R. Co. V. Taylor, 104 Penn. St. B. 277; Dublin, &c., R. R. Co. v. 
 
 _3o6; S. C.49 Am. Rep. 580. But see, Slattery, 3 App. Cas. 1213. See, also. 
 
 Turner v. Buchanan, 82 Id. 147; S. C. § 23 supra. 
 
 42 Am. Rep. 485, for a modification. " Clark v. Boston, &c., R. R. Co., 
 
 'Macon, &c., R. R. Co. z-. Davis, 128 Mass. I. See, also, Holland v. 
 
 27 Ga. 113. Chicago, &c., R. R. Co., 5 McCrary, 
 
 ■« But see, Wright v. Great North- 549. 
 
 €m R. R., 8 Ir. L. R. 257. C. P. Div. ' Kelly v. Southern, &c., R. R. 
 
 » Lunt V. London, &c., Ry. Co., L. Co., 28 Minn. 98. 
 
200 RULE AFFECTING RAILWAY CORPORATIONS. [§ 65. 
 
 of a pedestrian to cross the track anywhere at a regular 
 crossing, whether on the sidewalk or in the roadway.^ 
 
 § 65. When the view at the crossing is obstructed. — 
 When the view of the track is obstructed, or when, for 
 any reason, there is an inadequate outlook, this is a cir- 
 cumstance which demands of the employees of the railway 
 company the exercise of increased vigilance.** But by 
 this is meant the requisite degree of care, due care, under 
 the circumstances ; the railroad need not anticipate circum- 
 stances that are extraordinary in their nature.® And where 
 the dangerous character of the crossing is enhanced by 
 its negligent construction, or where the track is so laid 
 as to render it difficult for loaded vehicles to cross, the 
 railway company, in case of an injury therefrom, is held 
 liable.* When the track is obscured by smoke or fog, a 
 failure to sound the whistle, even in the absence of any 
 statutory duty, is evidence of negligence,® so, also, where the 
 railroad company permitted corn-cribs to stand near the 
 tracks in such a way as to cut off the view of the cross- 
 
 ' Louisville, &c., R. R. Co. ». Herd. * Indianapolis, &c., R. R. Co. v, 
 
 8oInd. 117. Stout. 53 Ind. 143; Payne v. Troy, 
 
 2 Chicago, &c., R. R. Co. v. Payne, &c., R. R. Co., 9 Hun. 526 ; Richard- 
 
 59 111. 534; S. C. 49 Id. 499; Indian- son v. N. Y., &c., R. R. Co., 45 N. Y. 
 
 apolis, &c., R. R. Co. v. Stables, 62 846; Milwaukee, &c., R. R. Co. i^; 
 
 Id. 313 ; Richardson v. N. Y. &c., R. Hunter, 11 Wis. 160; Mann -u. Cen- 
 
 R. Co., 45 N. Y. 846; Illinois, &c., R. tral, &c., R. R. Co., 55 Vt. 484; S. C. 
 
 R. Co. V. Benton, 69 111. 174 ; Artz v. 45 Am. Rep. 628 ; Pittsburgh, &c., R. 
 
 Chicago, &c.,R.R. Co, 44 Iowa, 284; R. Co. v. Dunn, 56 Penn. St. 280; 
 
 Penn. R. R. Co. v. Matthews, 36 N. Gramlick v. Railroad Co., 9 Phila. 78; 
 
 J. Law. 531 ; Dimick v. Chicago. &c., Dimick v. Chicago, &c., R. R. Co., 80 
 
 R. R. Co., 80 111. 338: CraieT/. N. Y., 111. 338; IngersoU v. N. Y., &c., R. 
 
 &c., R. R. Co., 118 Mass. 431 ; Cor- R. Co., 6 N. Y. Supr. Ct. 416; Artman 
 
 delle/. Id. 70N. Y. 119; Indianapolis, v. Kansas, &c., R. R. Co., 22 Kan. 
 
 &c., R. R. Co. V. Smith, 78 111. 112; 296. 
 
 Ohio, &c., R. R. Co. v. Clutter, 82 » Prescott v. Eastern, &c., R. R. 
 
 Id. 123. Co., 113 Mass. 370 (note); James w. 
 
 » Shaww. Boston, &(i, R. R. Co., Great Western Ry. Co., L. R. 2 C- 
 
 8 Gray, 41; : Balto., &c., R. R. v. Brei- P. 635 (note), 
 nig, 25 Md. 378 ; Grippen v. N. Y., 
 &c., R. R. Co., 40 N. Y. 34. 
 
§ 65.] RULE AFFECTING RAILWAY CORPORATIONS. 201 
 
 ing,' or where piles of lumber, operated in the same way 
 to obstruct the view.* 
 
 Where the traveler is misled by appearances, seeing 
 a train with the rear toward him, and believing it to be 
 receding, when in fact it is approaching, it is a question 
 for the jury whether under the circumstances in continu- 
 ing to cross he exercises proper care.* 
 
 A railway consisting of several lines, crossed a public 
 foot-path on a level at a point near a station, but the foot- 
 path was not in other respects dangerous. On each side 
 of the railway was a good and sufficient swing-gate. The 
 railway company, by way of extra precaution, usually, but 
 not invariably, fastened the gates when a train was ap- 
 proaching. B, wishing to cross the railway, found the 
 gate unfastened, and a coal train standing immediately in 
 front of it. He waited until the coal train had moved 
 off, and then without looking up or down the line, com- 
 menced crossing the railway, and was killed by a passing 
 train. If he had looked up the line he would have seen 
 the train coming, in time to stop and avoid the accident. 
 In an action against the company by B's administratrix, 
 it was held in the English common pleas, that B con- 
 tributed to the accident by his negligence. It was argued 
 that the mere failure to perform a self-imposed duty is; 
 not actionable negligence ; that the omission to fasten the 
 gate did not amount to an invitation to B to come on to 
 the track, and that, therefore, even if B were not guilty 
 of contributory negligence, the company was not liable.* 
 
 But, in Pennsylvania, it is held not contributory neg- 
 
 1 Rockford, &c., R. R. Co. v. Hill- R. R. Co., Sup. Ct, Penn., Mch. 2, 
 mer, 72 111. 235. 1885, 32 Alb. Law Jour. 98; Haycroft 
 
 2 Mackay v. N. Y., &c., R. R. Co., v. Lake Shore, &c., R. R. Co.. 64 N. 
 35 N. Y. 75 ; Contra, Cordell v. Id. Y. 636; New Jersey Trans. Co. v. 
 70 Id. 123; s. C. 26 Am. Rep. 550. West, 32 N. J Law, 91 ; Penn. R. R. 
 
 ' Bonnell v. Delaware, &c., R. R. Co. v. Matthews, 36 Id. 531. 
 Co., 39 N. J. Law, 189. Compare * Skelton v. London, &c., Ry. Co^, 
 
 Carroll v. Penn. R. R. Co , 12 Week. L. R. 2 C. P. 631. 
 Notes Cas. 348 ; Moore v. Phila., &c., 
 
202 RULE AFFECTING RAILWAY CORPORATIONS. [§ 65. 
 
 ligence, per se, to attempt to cross a railway track at a 
 regular crossing without waiting until a train that has just 
 passed is far enough away to allow sight of a train coming 
 up in a contrary direction.^ 
 
 Says the Court of Appeals of N,ew York : " The law 
 requires care at all times when in a situation of danger ; 
 and mental absorption or reverie, from business, grief, 
 etc., will not excuse its omission. The inquiry is whether, 
 from the evidence, it satisfactorily appears that the plaint- 
 iff, by looking, could have seen the train in time to have 
 avoided the collision. If so, the plaintiff should have been 
 nonsuited."* And Brainwell, B., in a carefully considered 
 case said : "The track is of itself a warning of danger to 
 those about to go upon it, and cautions them to see whether 
 a train is coming. Passengers crossing the rails are bound 
 to exercise ordinary and reasonable care for their own 
 safety, and to look this way and that way to see if danger 
 is to be apprehended."^ 
 
 When a train is backed over a crossing, or cars are 
 pushed ahead in front of an engine, it is held evidence 
 •of negligence not to employ a lookout and all available 
 means to avoid accidents to travelers at the crossing,* and 
 merely ringing the bell or blowing the whistle upon a 
 locomotive attached to a freight train standing with its 
 rear end partially across a street, is not proper notice to 
 the passers-by of an intention to back the train over the 
 crossing. Without other notice, the company in such a 
 case will be held negligent* 
 
 * Phila., &c., R. R. Co. v. Carr, 99 &c., R. R. Co., 8 Gray, 45, 66 ; Bradley 
 Penn. St. 505 ; Carroll v. Penn. R. R. v. Id., 2 Cush. 539 ; Grippen v. N. Y., 
 ■Co., Sup. Ct. Penn., 12 Vi^eek. Notes &c., R. R. Co., 40 N. Y. 34; Leaven- 
 Cas. 348; Moore w. Phila., &c., R.R. worth, &c., R. R. Co. v. Rice, 10 
 Co., Sup. Ct. Penn., Mch. 2, 1885, 32 Kan. 426; Kennedy v. North Mo. R. 
 Alb. Law Jour. 98. R. Co., 36 Mo. 351; Hathaway i-. 
 
 2 Baxter^/. Troy,.&c., R. R. Co., 41 Toledo, &c., R. R. Co., 46 Ind. 25. 
 
 N. Y. 503. See, also, Young v. Detroit, &c., R. 
 
 ^ Stubley v. London, &c., Ry. Co., R. Co., Sup. Ct., Mich., April 22, 
 
 L. R. I Exch. 13. 1885, 23 N. W. Rep. 67 ; S. C. 20 Cent 
 
 * Bailey v. New Haven, &c., R. R. Law Jour. 479. 
 
 Co., 107 Mass. 496 ; Show v. Boston, » Linfield v. Old Colony R. R. Co., 
 
§ 65.] RULE AFFECTING RAILWAY CORPORATIONS. 203 
 
 The Supreme Court of Iowa declares the law upon 
 this point in the following language : " If the view of the 
 railroad, as the crossing is approached upon the highway, 
 is obstructed by any means so as to render it impossible 
 or difficult to learn of the approach of a train, or there 
 are complicating circumstances calculated to deceive or 
 throw a person oif his guard, then, whether it was negli- 
 gence on the part of the plaintiff or the person injured, 
 under the particular circumstances of the case, is a ques- 
 tion of fact for the jury." ^ 
 
 In proportion as the danger increases must the vigi- 
 lance of the person who attempts the crossing be in- 
 creased. A railway crossing should, at all times and 
 under all circumstances, be approached with caution ; but, 
 at an obstructed crossing, it is the duty of a traveler to 
 exercise a greater degree of care and caution than is in- 
 cumbent upon him usually.^ He is not, however, re- 
 quired to show that he took precautions which the sur- 
 rounding circumstances would have rendered unavailing.® 
 When the train came from a direction where it could not 
 have been seen in time, one crossing is not required to 
 look in that direction,* and when there was noise suffi- 
 
 10 Cush. 564; Chicago, &c., R. R. Co., 19 Blatch. 533; Strong z/. Sacra- 
 Co. V. Garvey, 58 111. 85; Illinois, mento, &c., R. R. Co., 61 Cal. 326; 
 &€., R. R. Co. V. Ebert, 74 Id. 399; Laverenz v. Chicago, &c., R. R. Co. 
 Eaton w. Erie Ry. Co., 51 N. Y. 544; 56 Iowa, 689; Johnson v. Chicago, 
 Maginnis v. N. Y., &c., R. R. Co., 52 &c., R. R. Co., ^^ Mo. 546; Bunting 
 Id. 215; McGovem v. Id., 67 Id. 417. v. Central R. R. Co., 14 Nevada, 351 ; 
 ^ Artz V. Chicago, &c., R. R. Co., Davey v. London, &c., Ry. Co., 11 L. 
 34 Iowa, 160. See, also, Laverenz v. R. Q. B. Div. 213. See, also, Lehey 
 Id., 56 Id. 689; Tabor v. Missouri, z'. Hudson River R. R. Co., 4 Robt. 
 &c., R. R. Co., 46 Mo. 353; S C. 2 204; Schaick v. Id., 43 N. Y. 527. 
 Am. Rep. 517; Kennayde v. Pacific, ' Davis w. N. Y., &c., R. R. Co., 
 &c., R.R.Co.,4SMo.255; Milwaukee, 47 N. Y. 400; Hackford v. Id., 6 
 &c., R. R. Co. V. Hunter, 11 Wis. Lans. 381; s. c. 53 N. Y. 654; 43 
 160; Kelly z*. Minneapolis, &c., R. R. How. Prac. 222; Leonard v. Id, 10 
 Co., 29 Minn, i ; Faber v. St. Paul, Tones & S. 225. 
 
 &c., R. R. Co., 29 Id. 465; Abbett * McGuire z/. Hudson River R. R. 
 
 ■». Chicago, &c., R. R. Co., 29 Id. Co., 2 Daly, 76; Chicago, &c., R. R. 
 
 482 ; Strong v. Sacramento, &c., R. Co. v. Lee, 87 111. 454. See, also, 
 
 R. Co., 61 Cal. 326. Phila., &c., R. R. Co. v. Carr, 99 
 
 ^ Thomas w. Delaware, &c., R. R. Penn. St. 505; Strongs. Sacramento, 
 
204 RULE AFFECTING RAILWAY CORPORATIONS, [§ 66. 
 
 ciently loud to drown the rumbling sound of a train in mo- 
 tion, the fact that the injured party did not listen, when 
 there was no signal by either bell or whistle of the ap- 
 proaching train, was held not negligence/ 
 
 § 66. Plaintiff deaf or intoxicated. — Deafness, so far 
 from excusing one for a failure to use his eyesight, 
 rather imposes upon him the duty of increased vigi- 
 lence in the employment of that faculty,^ and when 
 contributory negligence is charged, it is, as a rule, not 
 sufficient for the plaintiff to urge his deafness by way 
 of excuse. It may be of the very essence of the 
 plaintiff's default that, being deaf, he put himself in a 
 position where his deafness would especially expose him 
 to injury. The rule is caveat surdus. 
 
 Neither will intoxication excuse one crossing a rail- 
 road track from the exercise of such care as is due 
 from a sober man." But intoxication can hardly be 
 said, as matter of law, to be contributory negligence. 
 It tends to show contributory negligence, and is matter 
 to go to the jury.* " Slight intoxication," howeyer, when 
 
 &c., R. R. Co., 6i Cal. 326; Davey z/. Graham, 46 Ind. 239; S. C. 95 Ind. 
 
 London, &c., Ry. Co., 11 L. R. Q. B. 286; 48 Am. Rep. 719; Lake Shore, 
 
 Div. 213. &c., R. R. Co. V. Miller, 25 Mich. 
 
 » Davis V. N. Y., &c , R. R. Co., 47 279; Hayes v. Michigan, &c., R. R. 
 
 N. Y. 400; Leonard v. Id., 10 Jones Co., iii U. S. 228. 
 & S. 225. See, also, Mahlen v. Lake ' Kean v. Baltimore, &c., R. R. 
 
 Shore. &c., R. R. Co., 49 Mich. 585. Co., 61 Md. 154; Toledo, &c., R. R. 
 
 2 Cleveland, &c., R. R. -Co. 2/. Ter- Co. t/. Riley, 47 111. 514; Chicago^ 
 
 ry, 8 Ohio St. S7o; Morris, &c., R. R. &c., R. R. Co. v. Bell, 70 Id. 102 ; 
 
 Co. V. Haslan, 38 N.J. Law. 147; Yamall z/. St. Louis, &c., R. R. Co., 
 
 Central, &c., R. R. Co. v. Fellar, 84 75 Mo. 575 ; Southwestern R. R. Co.. 
 
 Penn. St. 226; Zimmerman v. Hanni- v. Hankerson, 61 Ga; 114; Houston, 
 
 bal, &c., R. R. Co., 71 Mo. 476 ; Purl &c., R. R. Co. v. Sympkins, S4 Tex- 
 
 V. St. Louis, &c., R. R. Co., 72 Id. as, 615; S. C. 38 Am. Rep. 632; Her- 
 
 168; Illinois, &c., R. R. Co. v. Buck- ring v. Wilmington, &c., R. R. Co.,, 
 
 ner, 28 111. 299; Chicago, &c., R. R. lo Ired. (Law), 402; S. C. 51 Am. Dec, 
 
 Co. V. Triplett, 38 Id. 482 ; New Jer- 395 ; Jones v. North Carolina R. R. 
 
 sey Trans. Co. v. West, 32 N.J. Law, Co., 67 N. C. 125; Little Rock, &c., 
 
 91 ; Laicher v. New Orleans, &c., R. R. R. Co. v. Pankhurst, 36 Ark. 371. 
 R. Co., 28 La. Ann. 320 ; Cogswell v. * Aurora v. Hillman, 90 111. 61 ; 
 
 Oregon, &c., R. R. Co., 6 Oregon, Baltimore, &c., R. R Co. v. Boteler, 
 
 417; Terre Haute, &c., R. R. Co. w. 38 Md. 568; Ditchett v. Spuyten 
 
§ 67.] RULE AFFECTING RAILWAY CORPORATIONS. 205 
 
 on the track of a railway, is said, in Illinois, not to be 
 contributory negligence ; ^ while under the Georgia Code, 
 intoxication is an absolute defense to actions of this 
 character.^ In every jurisdiction, presumably, falling 
 asleep, or being helplessly drunk, upon a railway track, 
 would be held such contributory negligence as to bar an 
 action for damages.* 
 
 § 67. Trespassers on a railway track — the Pennsyl- 
 vania rule.— There are two views taken by the courts in 
 this country as to the degree of care to be exacted from 
 railway corporations with reference to trespassers upon its 
 tracks. 
 
 One class of cases hold that the agents of a railroad 
 company are under no obligation to take precautions 
 for the safety of trespassers. " Except at crossings," says 
 the Pennsylvania court, "where the public have a right of 
 way, a man who steps his foot upon a railroad track does 
 so at his peril."* " The law insists upon a clear track." ® 
 The Pennsylvania courts insist to the utmost upon this 
 rule. In Phila., &c., R. R. Co. v. Hummell,* Strong, J., 
 says : " It is time it should be understood in this State 
 that the use of a railroad track, cutting, or embankment, 
 is exclusive of the public everywhere, except where a way 
 crosses it. This has more than once been said, and it 
 
 Duyvil. &c., R. R. Co., 5 Hun, 165; Mull. (Law), 403; Richardson v. Wil- 
 
 S. C. 67 N. Y. 425; Illinois, &c., R. mington, &c., R. R. Co., 8 Rich. 
 
 R. Co.z/ Cragin, 71 111. 177; Barkers. (Law), 120; Herring v. Id., lo Ired. 
 
 Savage, 45 N. Y. 191. See, also, Ab- (Law;, 402; s. C. 51 Am. Dec. 395; 
 
 bolt's Trial Evidence, 779; Field's Manly v. Id., 74 N. C. 655; Illinois, 
 
 Damages, 188; Shear. & Redf. on &c., R R. Co. ■:/. Hutchison, 47 111. 
 
 Neg., S 487. 408 ; Weymire v. Wolfe, 52 Iowa, 533. 
 
 1 Indianapolis, &c., R. R. Co. v. * Mulherrin v. Delaware, &c., R. 
 
 Galbraith, 63 111. 436. R. Co., 81 Penn. St. 366. 
 
 » Southwestern, &c., R. R. Co. z>. ' Railroad Co. v. Norton, 24 Penn. 
 
 Hankerson, 61 Ga. 114. St. 465; S. C. 64 Am. Dec. 672. 
 
 ' Yamall v. St Louis, &c , R. R. Compare Galena, &c., R. R. Co. v. 
 
 Co., 75 Mo. 575; Denman v. St. Paul, Jacobs, 20 111. 478; Lake Shore, &c., 
 
 &c., R. R. Co., 26 Minn. 357; Felder R. R. Co. v. Hart, 87 Id. 529. 
 
 V. Louisville, &c., R. R. Co., 2 Mc- •44 Penn. St. 375. 
 
206 RULE AFFECTING RAILWAY CORPORATIONS. [§ 67. 
 
 must SO be held, not only for the protection of property, 
 but, what is far more important, for the preservation of 
 personal security, and even of life. In some other coun-r 
 tries it is a penal offense to go upon a railroad. With us, 
 if not that, it is a civil wrong, of an aggravated nature ; 
 fdr it endangers not only the trespasser, but all who are 
 passing or transporting along the line. As long ago as 
 1852, it was said by Judge Gibson, with the concurrence 
 of all the court, that ' a railway company is a purchaser, in 
 consideration of public accommodation and convenience, 
 of the exclusive possession of the ground paid for to the 
 proprietor of it, and of a licence to use the highest at- 
 tainable rate of speed, with which neither the person nor 
 property of another may interfere. The company, on the 
 one hand, and the people of the vicinage, on the other, 
 attend respectively to their particular concerns, with this 
 restriction of their acts, that no needless damage be done. 
 But the conductor of the train is not bound to attend to 
 the uncertain movements of every assemblage of those 
 loitering or roving cattle by which our railways are 
 infested (R R. v. Skinner, 19 Penn. St. 298). So, in 
 R. R. V. Norton, 24 Penn. St. 465, it was said, that ' until 
 the legislature shall authorize the construction of railroads 
 for something else than travel and transportion, we shall 
 hold any use of them for other purposes to be unlawful, 
 if not, indeed, a public offense punishable by indictment' 
 But if the use of a railroad is exclusively for its owners, 
 or those acting under them, if others have no right to be 
 upon it, if they are wrong-doers whenever they intrude, 
 the parties lawfully using it are under no obligation to 
 take precautions against possible injuries to intruders 
 upon it. Ordinary care they must be held to, but they 
 have a right to presume, and act on the presumption that 
 those in the vicinity will not violate the laws, will not 
 trespass upon the right of a clear track ; that even chil- 
 
§ 67.] RULE AFFECTING RAILWAY CORPORATIONS. 207 
 
 dren of a tender age will not be there, for, though they 
 are personally irresponsible, they cannot be upon the 
 railroad without a culpable violation of duty by their 
 parents or guardians. Precaution is a duty only so far as 
 there is reason for apprehension. No one can complain 
 of want of care in another, where care is only rendered 
 necessary by his own wrongful act. It is true, that what 
 amounts to ordinary care, under the circumstances of the 
 case, is generally to be determined by the jury. Yet a 
 jury cannot hold parties to a higher standard of care than 
 the law requires, and they cannot find anything negligence 
 which is less than a failure to discharge a legal duty. If 
 the law declares, as it does, that there is no duty resting- 
 upon any person to anticipate wrongful acts in others, and 
 to take precaution against such acts, then the jury cannot 
 say that a failure to take such precautions is a failure in 
 duty and negligence. Such is this case. The defendants 
 had no reason to suppose that- either man, woman, or 
 child, might be upon the railroad where the accident 
 happened. They had a right to presume that no one 
 would be on it, and to act upon the presumption. Blow- 
 ing the whistle of the locomotive, or making any other 
 signal, was not a duty owed to the persons in the neigh- 
 borhood, and, consequently, the fact that the whistle was 
 not blown, nor a signal made, was no evidence of negli- 
 gence. Were it worth while, abundant authority might 
 be cited to show that the law does not require anyone . to 
 presume that another may be negligent, much less to pre- 
 sume that another may be an active wrong-doer. The prin- 
 ciple was asserted in Brown v. Lynn (31 Penn. St. 510), 
 and in Reeves v. Delaware R. R (30 Penn. St. 454). 
 It is too well founded in reason, however, to need author- 
 ity. We act upon it constantly, and without it there 
 could be no freedom of action. There is as perfect a 
 duty to guard against accidental injury to a night intruder 
 
208 RULE AFFECTING RAILWAY CORPORATIONS. [§ 67. 
 
 into one's bed chamber, as there is to look out for trespass- 
 ers upon a railroad, where the public has no right to be. 
 And the rule must be the same, whether the railroad is in 
 the vicinage of many or few inhabitants. In the one 
 case, as in the other, going upon it is unlawful, and, there- 
 fore, need not be expected. In this case it appears that 
 there are fifteen houses between the railroad and public 
 highway, all but two of them built since the railroad was 
 constructed. The danger of trespassing may have been 
 increased by the increase of the population, but the 
 standard of duty in the use of one's property is not ele- 
 vated or depressed by a varying risk of unlawful intru- 
 sions upon his rights. Of course, we are not speaking of 
 the duties of railroad companies to the public at lawful 
 crossings of their railways. We refer only to their obli- 
 gations at points where their right is exclusive." 
 
 This is a luminous and explicit statement of the rule 
 as held not only in Pennsylvania but in other States of 
 the Union. Where this rule prevails, only such aggra- 
 vated negligence, as amounts to intentional mischief on 
 the part of the railway, will render it liable in the event 
 of an injury to a trespasser,^ 
 
 » Jeffersonville, &c., R. R. Co. v. Indiana, &c., R. R. Co. v. Hudelson, 
 
 Goldsmith, 47 Ind. 43; LaFayette, 13 Ind. 325; Morrissey ». Eastern R. 
 
 &c., R. R. Co. V. HufTman, 28 Id. R. Co., 126 Mass. 377; S. C. 30 Am. 
 
 287; Cincinnati, &c , R. R. Co. v. Rep. 686; Terre Haute, &c., R. R. Co. 
 
 Eaton, 53 Id. 310; Evansville, &c., R. v. Graham, 95 Ind. 286; S. C. 48 Am. 
 
 R. Co. V. Wolf, 59 Id. 89; Carroll v. Rep. 719; Pittsburgh, &c., R. R. Co. 
 
 Minn., &c., R. R. Co., 1 3 Minn. 30; II- v. Collins, 87 Penn. St. 405 : s. C. 30 
 
 linois,&c.. R.R. Co. W.Godfrey, 7 1 111. Am. Rep. 371; Mason v. Mo. Pac. 
 
 500; S.C.22Am.Rep.il2; Donaldson R. R. Co., 27 Kan. 83; S. C. 41 Am. 
 
 ■V. Milwaukee, &c., R.R.Co., 21 Minn. Rep. 405 ; Nicholson v. Erie Ry. Co., 
 
 293; Herring z/. Wilmington, &c., R. 41 N. Y. 525. Compare McAlpin v. 
 
 R. Co.. ioIred,402; s. C. 51 Am. Dec. Powell, 70 N. Y. 126; S. C. 26 Am. 
 
 395;Kenyont/.N.Y., &c.,R.R.Co., s Rep. 555, and Mr. Browne's note. 
 
 Hun,479; Greenw. Erie Ry. Co., 1 1 Id. The English statute upon this subject 
 
 333; Balto., &c., R.R.Co. v. Schwind- (3 & 4 Vict., c. 97. § 16), makes it a 
 
 ling, loi Penn. St. 258; s.c. 47 Am. penal offense wilfully to trespass upon 
 
 Rep. 706 ; Railroad Co. v. Houston,95 the line of a railway, and this is gen- 
 
 U. S. 697; Ream v. Pittsburgh, &c., erally the rule of law on the continent 
 
 R. R. Co., 49 Ind. 93 ; Gaynor v. Old of Europe. See Hounsell v. Smyth, 
 
 Colony R. R. Co., 100 Mass. 208; 7 C. B. (N. S.) 731; s. C. 6 Jur. (N. 
 
§ 68.] RULE AFFECTING RAILWAY CORPORATIONS. 2O9 
 
 § 68. The modified rule as to trespassers. — But the 
 courts of some of the American States incline to relax 
 the severity of the rule as to the public, and hold that a 
 railway company is bound to run its trains with a view 
 to the probability, or, at most, the possibility, of constant 
 trespass upon its tracks. This is, however, neither cor- 
 rect in principle nor conformed to the analogy in other 
 branches of the law of trespass. This doctrine is laid 
 dow^n by the, Missouri court, viz. : "If, after discovering 
 the danger in which the party had placed himself, even 
 by his own negligence, the company could have avoided 
 the injury by the exercise of reasonable care, the exer- 
 cise of that care becomes a duty, for the neglect of 
 which, the company is liable. When it is said, in cases 
 where plaintiff has been guilty of contributory negli- 
 gence, that the company is liable if, by the exercise of 
 ordinary care, it could have prevented the accident, it is 
 to be understood that it will be so liable if, by the exer- 
 cise of reasonable care, after a discovery by defendant of 
 the danger in which the injured party stood, the accident 
 could have been prevented, or if the company failed to 
 discover the danger through the recklessness or careless- 
 ness of its employees, when the exercise of ordinary care 
 would have discovered the danger and averted the ca- 
 lamity."^ As a general rule, a trespasser on the track is 
 
 S.) 897; 29 L. J. (C. p.) 203; 8 Week, be reported in 62 Md. Hassenger v. 
 
 Rep. 227: 97 Eng. Com. Law, 731. Mich., &c., R. R. Co., 48 Mich. 205 ; S. 
 
 1 Harlan v. St. Louis, &c., R. R. c. 42 Am. Rep. 470 ; Johnson v. Chica- 
 
 Co., 64 Mo. 480. See, also, S.C. 65 go, &c., R.R. Co.. 56 Wis. 274; Austin 
 
 Id. 22 ; Brown v. Hannibal, &c., R. R. v. Chicago, &c., R. R. Co., 91 111. 35 ; 
 
 Co., 50 Id. 461 ; S. C. II Am. Rep. Houston, &c., R. R. Co. v. Sympkins, 
 
 420; Isabel V. Id., 60 Mo. 475; Fin- 54 Texas, 615; S. C. 30 Am. Rep. 632; 
 
 layson v. Chicago, &c., R. R. Co., i Birge v. Gardner, 19 Conn. 507; 
 
 DilL 579; Baltimore, &c., R. R. Co. ». s. C 50 Am. Dec. 261; Gothard v. 
 
 State, 33 Md. 542; State v. Balto., Alabama, &c., R. R. Co, 67 Ala. 
 
 &c., R. R. Co, 36 Id. 366; Balto., 114, Compare Carter v. Louisville, 
 
 &c., R. R. Co. V. State, 54 Id. 648; &c., R. R. Co., 98 Ind. 552; s. C. 49 
 
 Penn.. &c., R. R. Co. v. Id.. 61 Id. Am. Rep. 780, and see § 17, supra, 
 
 108; Balto., &c., R.R. Co. v. State Ct. It is not contributory negligence for 
 
 ofApp. Md.,32 Alb. Law Jour. 13, to one walking on the track, in a snow 
 
 14 
 
210 RULE AFFECTING RAILWAY CORPORATIONS. [§ 68. 
 
 held to be there at his peril. He must keep himself in- 
 formed of the approach of trains from any direction, and, 
 in case of injury, will be held guilty of such contributory 
 negligence, that he cannot recover from the railway com- 
 pany, notwithstanding concurrent negligence on their 
 part.^ The doctrine upon this point, declared by the Su- 
 preme Court of Missouri, is evidently an attempt to ap- 
 ply the rule that Judge Thompson has formulated* for 
 the purpose of neutralizing the heresy in Davies v. 
 Mann,* but, as has been already suggested,* it is, in the 
 author's judgment, better to abandon the theory of that 
 case than to explain it away. A railway company is not 
 liable for a failure on the part of its employees to stop 
 the train, on seeing a person walking on the track, even 
 though there was time enough to do so, provided the 
 proper signals of warning were given. The company 
 may presume that the trespasser is in full possession of 
 his senses, and that he will appreciate his danger, and act 
 with discretion.^ But an engineer, who sees a helpless 
 
 storm, when the snow was blinding, to waukee, &c,, R. R. Co., 21 Wis. 256 ; 
 
 presume that the railway employees Moore v. Penn. R. R. Co., 99 Penn. 
 
 will be careful in running their train. St. 301 ; Mason v. Mo. Pac. R. R. 
 
 Solen V. Virginia, &c., R. R. Co., 13 Co., 27 Kan. 83; Hoover v. Texas, 
 
 Nevada, 106. &c., R. R. Co., 61 Texas, 503; Lenix 
 
 > Gonzales v. N. Y., &c., R. R. Co., v. Mo. Pac. R. R. Co., 76 Mo. 86; 
 
 SO How. Pr. 126; Elwood v. N. Y., Meek v. Penn., &c., R. R. Co., 38 
 
 &c., R. R. Co., 4 Hun, 808 ; Green v. Ohio St. 632 ; State v. Balto., &c., R. 
 
 Erie Ry. Co., 11 Id. 333; Illinois, R. Co., 58 Md. 482; Feunenbrack w. 
 
 &c., R. R. Co. V. Hall, 72 111. 222; Id. South Pac. R. R. Co., 59 Cal. 269. 
 
 V. Hetherington, 83 Id. 510; Lake ^ Vide \ \Z, supra. 
 
 Shore, &c,, R. R. Co. v. Hart, 87 Id. » Thomp. on Neg., 1153, § 7- 
 
 529; Austin V. Chicago, &c., R. R. *§ 10, supra. 
 
 Co., 91 111. 35 ; Poole v. N. C. R. R. « Illinois, &c., R. R. Co. v. Modg- 
 
 Co., 8 Jones (Law), 340; Carlin v. lin, 85 111. 481; Herring v. Wilming- 
 
 Chicago, &c., R. R. Co., 37 Iowa, ton, &c., R. R. Co., lo Ired. L. 402; 
 
 316; Murphy v. Id., 45 Id. 661 ; s. C. S. C. 51 Am. Dec. 395; Poole z/. North 
 
 38 Id. 539 ; Bancroft v. Boston, &c., Car.R.R.Co.,8Jones(Law),34o;Man- 
 
 R. R. Co., II Allen, 34; s. C. 97 ly k Wilmington, &c., R. R. Co., 74 
 
 Mass. 275 ; Laicher v. N. O., &c., R. N. C. 655 ; Holmes v. Central, &c., R. 
 
 R. Co., 28 La. Ann. 320; Carroll v. R. Co., 37 Ga. 593; Maher v. Atlan- 
 
 'Minn., &c., R. R. Co., 13 Minn. 30; tic, &c., R. R. Co., 64 Mo., 267; 
 
 ■Donaldson v. Milwaukee, &c., R. R. Freeh v. Phila., &c., R. R. Co., 39 
 
 Co., 21 Id. 293; Smith v. Minn., &c., Md. 574; Willets v. Buffalo, &c., R. 
 
 R. R. Co.,26Minn.4i9; Rothei/. Mil- R. Co , 14 Barb. 585; Kenyon v. N. 
 
§69.] RULE AFFECTING RAILWAY CORPORATIONS. 211 
 
 person, incapable of moving, on the track, is guilty of 
 negligence if he fails to make all prudent efforts to avoid 
 the collision, and this without reference to the cause of 
 the person's disability.^ 
 
 § 69. Children as trespassers on railroad property . — 
 The severity of the rule, as to trespassers upon railroad 
 property, is essentially relaxed in the case of trespassers 
 of tender years, who, in general, have not the faculties 
 requisite for 'the perception of danger, or, having such 
 faculties, are not capable of exercising them with the dis- 
 cretion of adults.^ When the trespasser is an infant, the 
 railway company, on the one hand, is held bound to ex- 
 ercise a higher degree of care and caution than is required 
 as to adults, and the infant, on the other hand, is not re- 
 quired to exercise a discretion and prudence beyond its 
 
 Y., &c., R. R. Co., 5 Hun, 479; 
 Harty v. Central, &c., R. R. Co., 42 
 N. Y. 468; Little Rock, &c., R. R. 
 Co. V. Pankhurst, 36 Ark. 371 ; Lav- 
 erenz v. Chicago, &c., R. R. Co., 56 
 Iowa, 689; Cogswell v. Oregon, &c., 
 R. R. Co., 6 Oregon, 417; Terre 
 Haute, &c., R. R. Co. v, Graham, 46 
 Ind. 239; S. C. 95 Ind. 286; 48 Am. 
 Rep. 719; Indianapolis, &c.,R.R.Co. 
 w McClaren, 62 Ind. 566; Lake Shore, 
 &c., R. R. Co. V. Miller, 25 Mich. 
 279 ; Weymire v. Wolfe, 52 Iowa, 533 ; 
 Moore w. Phila.,&c., R. R. Co., Sup. 
 Ct. Penn., Mch. 2, 1885 ; 32 Alb. Law 
 Jour. 98. 
 
 1 Houston, &c., R. R. Co. v. 
 Sympkins, 54 Texas, 615; S. C. 38 
 Am. Rep. 632; Telfer v. Northern, 
 &c.. R. R. Co., 30 N. J. Law, 188; 
 East Tenn., &c., R. R. Co. v. St. 
 John, 5 Sneed, 524; Meeks v. South- 
 em, &c., R. R. Co., 56 Cal. 513; S. C. 
 38 Am. Rep. 67 ; Schierhold v. North 
 Beach, &c.. R. R. Co., 40 Cal. 447 ; 
 Isabel V. Hannibal, &c., R. R. Co., 
 60 Mo. 475. 
 
 2 Evansich v. Gulf, &c., R. R. Co., 
 .57 Texas, 126; S. C. 44 Am. Rep. 
 
 586 ; S. C. sub nom.. Gulf, &c., R. R. 
 Co. V. Evansich, 61 Texas, 24, and 
 S. C. 61 Texas, 3 ; Rockford, &c., R. 
 
 R. Co. V. Delaney, 82 111. 198 ; s. C. 25 
 Am. Rep. 308 ; Nagel v. Mo. Pac. R. 
 R. Co., 75 Mo. 653; s. C. 42 Am. 
 Rep. 418; Kansas, &c., R. R. Co. v. 
 Fitzsimmons, 22 Kan. 686; S. C. 31 
 Am. Rep. 203; Isabel v. Hannibal, 
 &c., R. R. Co., 60 Mo. 475; Frick v. 
 St. Louis, &c"., R. R. Co.. 75 Mo. 542;' 
 S. C. again at page 595 ; Barley v. 
 Chicago, &c., R. R. Co., 4 Biss. 430 ; 
 Phila., &c., R. R. Co. v. Spearen, 47 
 Penn. St. 300; Kay v. Penn. R. R. 
 Co., 65 Id. 269; s C. 3 Am. Rep. 
 628; Penn. R. R. Co. v. Lewis, 79 
 Penn. St. 33; Penn. R. R. Co. v. 
 Morgan, 82 Id. 134; Byrne v. New 
 York, &c., R. R. Co., 83 N. Y. 620; 
 Meyer v. Midland, &c., R. R. Co., 2 
 Neb. 319; Johnson v. Chicago, &c., 
 R. R. Co., 56 Wis. 274; Fitzpatrick 
 V. Fitchburg R. R. Co., 128 Mass. 
 13 ; McMuUan v. Burlington, &c., R. 
 R. Co., 46 Iowa, 231. See, also, 
 Plumley v. Birge, 1 24 Mass. 57 ; S. C. 
 26 Am. Rep. 645 ; Kerr v. Forgue, 54 
 111. 482 ; s. C. 5 Am. Rep. 146 ; Mei- 
 bus V. Dodge, 38 Wis. 300 ; S. C. 20 
 Am. Rep. 6; Munn V. Reed, 4 Allen, 
 431 ; Dowd V Chicopee, n6 Mass. 93; 
 Keyserz/. Chicago, &c., R. R. Co., Sup. 
 Ct. Mich. N. W. Rep. May 16, 1885 ; S. 
 C. xix Am. Law Rev. 668. 
 
2 12 RULE AFFECTING RAILWAY CORPORATIONS. [§ 70. 
 
 years, but only that measure of sense and judgment 
 which it may reasonably be expected to possess in view 
 of its age.^ When, however, children go so far, by way 
 of a trespass, as to make a play-ground of the railroad 
 track, or of other exposed railway premises or property, 
 cases are not wanting to support the rule that such con- 
 duct is negligent per se, and that the company will not 
 be liable for injury to children so conducting themselves, 
 unless the acts of their employees evince a reckless and 
 wanton disregard of human life which is equivalent to 
 intentional mischief.® 
 
 Where a child, too young to know.the danger of its 
 situation, was at play upon a railway track, when a train 
 approached suddenly at a high rate of speed, and one, 
 seeing the peril in which the child had placed itself, ran 
 upon the track and rescued the child, but was too late 
 to save himself, and was run down by the locomotive 
 and killed, the court held that such an act, for the pur- 
 pose of saving the child's life, was not, as matter of law, 
 negligent, to the extent of precluding a recovery.® 
 
 § 70. The turn-table cases. — In the application of the 
 general principles of the law of negligence and trespass 
 to cases involving the rights of infants, or persons of 
 tender years, various questions of considerable difficulty 
 have arisen. As a rule, a trespasser acts at his peril, and 
 
 1 See the cases last cited. Co. v. Schwindling, loi Penn. St. 
 
 * Morrissey v. Eastern R. R. Co., 258 ; s. C. 47 Am. Rep. 706 ; Chica- 
 
 126 Mass. 377; s. c. 30 Am. Rep. go, &c., R. R. Co. v. Smith, 46 Mich. 
 
 686; Central Branch, &c., R. R. Co. 504; St. Louis, &c., R. R. Co v. 
 
 V. Henigh, 23 Kan. 347; s. c. 33 Am. Bell, 81 111. 76; S. C. 25 Am. Rep. 
 
 Rep. 167; Smith v. Atchison, &c., R. 269; Ex parte Stell, 4 Hughes, 157; 
 
 R. Co., 25 Kan. 738; s. c. sub mm., Miles v. Atlantic, &c., R. R. Co., 4 
 
 Atchison, &c., R. R. Co. v. Smith, Id. 172. 
 
 28 Kan. 541 ; Cauley v. Pittsburgh, » Eckert v. Long Island, &c., R. R. 
 
 &c., R. R. Co., 95 Penn. St 398 ; s. C. Co., 43 N. Y. 502; S. C. 3 Am. Rep. 
 
 40 Am. Rep. 664; Moore V. Penn. R. 721. Compare Linnehan v. Samp- 
 
 R. Co., 99 Penn. St. 301; s. C. 44 son, 126 Mass. 506; S. C. 30 Am. 
 
 Am. Rep. 106 ; Baltimore, &c., R. R. Rep. 692, and vide § 15, supra. 
 
§ yoJ] RULE AFFECTING RAILWAY CORPORATIONS. 21 3 
 
 one owes no duty to such a person except that a wanton 
 injury must not be inflicted upon him ; but where one 
 goes upon the premises or property of another, not as a 
 mere trespasser, or by mere passive license, but by some 
 sort of an invitation from the owner, the latter owes him 
 a larger duty. "The general rule or principle applicable 
 to this class of cases," says Chief Justice Bigelow, in 
 Sweeny v. Old Colony and Newport R. R. Co.,^ " is 
 that an owner or occupant is bound to keep his premises 
 in a safe and suitable condition for those who come upon 
 or pass over them, using due care, if he has held out any 
 inducement, invitation or allurement, either express or 
 implied, by which they have been led to enter thereon."* 
 There is a line of cases that hold, as an application of 
 this doctrine, that what an express invitation would be 
 to an adult, the temptation of an attractive plaything is 
 to a child of tender years. Accordingly, when one 
 exposes upon his premises, in a place to which children 
 may, or are likely to resort or be attracted, a dangerous 
 tool, or machine, or other contrivance, which is calcu- 
 lated to inflict an injury upon any one who meddles with 
 it, or even touches it heedlessly, without any precaution 
 upon the part of the person so exposing it against mis- 
 chief, it is held that such a person is not only guilty of 
 negligence, but of negligence of a very reprehensible 
 character.® 
 
 1 10 Allen, 368. S. C. 10 Jur. (N. S.) 682 ; 33 L. J. 
 
 * Compare Indermaur v. Dames, (Exch.) 177; 12 Week. Rep. 315. 
 L. R, I C. P. 274; s. C. 12 Jur. (N. [But, for a contrary rule, see Mangan 
 S.) 432; 35 L. J. (C. P) 184; 14 V. Atterton, 4 Hurl. & Colt, 388;] 
 Week. Rep. 586; 14 L. T. (N. S.) Whirley w. Whitman, i Head (Tenn.), 
 484; affirmed, 36 L. J. (C. P.) 181; 610; Birge v. Gardner, 19 Conn. 
 L. R. 2 C. P. 311; IS Week. Rep. 507; S. C. 50 Am. Dec. 261; Wood 
 434; 16 L. T. (N. S.) 293, and see v. School District, 44 Iowa, 27; Hy- 
 § 23, supra. draulic Works Co. v. Orr, 83 Penn. 
 
 * Lynch v. Nurdin, i Q. B. 29; St. 332; Lane w. Atlantic Works, 107 
 Clark V. Chambers, L. R. 3 Q. B. Mass. 104; MuUaney v. Spence, 15 
 Div. 327; Hughes v. Macfie and Abb. Pr. (N. S.) 319. See, also, 
 Abbott V. Id., 2 Hurl. & Colt, 744; Townsend v. Wathen, 9 East, 277, 
 
214 RULE AFFECTING RAILWAY CORPORATIONS. [§ 70. 
 
 Stout V. Sioux City and Pacific R. R. Co.,^ is the 
 first of a series of adjudications, which may be known as 
 the, turn-table cases, in which this rule is applied in actions 
 brought by, or in behalf of, infants, who have been 
 injured while playing on, or about , turn-tables, left by 
 railway companies unlocked or unguarded — and in such 
 exposed positions as to tempt children to play with 
 them. In this case, the plaintiff, a boy six years of age, 
 who was playing upon such an exposed and unguarded 
 turn-table in company with several other boys, was seri- 
 ously hurt, and Mr. Justice Dillon, in delivering the 
 charge, insisted that the circumstance that the plaintiff 
 was in some sense a trespasser, did not, under these cir- 
 cumstances, exempt the defendant from the duty of care. 
 The boy being the plaintiff, and not his parents, and it 
 being conceded that there was no negligence on the 
 part of the parents, and that as the plaintiff was but six 
 years of age, none could be predicated of him, the simple 
 question was as to the liability of the company by reason 
 of their leaving the turn-table unlocked and unguarded 
 in a place where boys were likely to come. It was held 
 that the plaintiff might recover, and, upon appeal, the 
 judgment of the court below was affirmed.* 
 
 The next case in which this question came before a 
 court of last resort was one,' in which, upon an essentially 
 similar state of facts, the same result was reached. The 
 court says : " We agree with the defendant's counsel that 
 a railroad company is not required to make its land a 
 safe play-ground for children. It has the same right to 
 
 a case in which it was held to be too, although the traps were not set 
 
 unlawful for a man to tempt even his to catch the dogs, 
 neighbor's dogs into danger, by set- ' 2 Dill. 294. 
 
 ting traps on his own land, baited * S. C. sub nom.. Railroad Co. v. 
 
 with strong scented meat, by which Stout, 17 Wall. 657, (by Hunt, J.) 
 the dogs were allured to come upon ' Keffe v. Milwaukee, &c., R. R. 
 
 his land and into his traps— and that, Co., 21 Minn. 207; s. C. 18 Am. Rep. 
 
 393- 
 
§ 70.] RULE AFFECTING RAILWAY CORPORATIONS. 215 
 
 maintain and use its turn-table that any land owner has 
 to use his property. It is not an insurer of the lives or 
 limbs of young children who play upon its premises. We 
 merely decide that when it sets before young children a 
 temptation which it has reason to believe will lead them 
 into danger, it must use ordinary care to protect them 
 from harm. What would be proper care in any case, 
 must, in general, be a question for the jury upon all the 
 circumstances of the case." ^ In the same opinion it is 
 declared that : "To treat the plaintiff as a voluntary tres- 
 passer is to ignore the averments of the complaint that 
 the turn-table, which was situate in a public, (by which 
 we understand an open, frequented), place, was, when 
 left unfastened, very attractive, and when put in motion 
 by them, was dangerous to young children, by whom it 
 could be easily put in motion, and many of them were 
 in the habit of going upon it to play. The turn-table, 
 being thus attractive, presented to the natural instincts 
 of young children a strong temptation ; and such children 
 following, as they must be expected to follow, those 
 natural instincts, were thus allured into a danger whose 
 nature and extent they, being without judgment or dis- 
 cretion, could neither apprehend nor appreciate, and 
 against which they could not protect themselves. The 
 difference between the plaintiff's position and that of a 
 voluntary trespasser capable of using care, consists in 
 this — ^that the plaintiff was induced to come upon the 
 defendant's turn-table by the defendant's own conduct, 
 and that as to him, the turn-table was a hidden danger — 
 a trap." ^ The same rule is laid down in several later 
 
 > Keffe V. Milwaukee, &c., R. R. Sioux City, &c., R. R. Co., 2 Dill. 
 Co., supra, citing Railroad Co. v. 294. 
 
 Stout, 17 Wall. 657, and Stout v. ^ KefFe v. Milwaukee, &c., R. R. 
 
 Co., supra. 
 
2l6 RULE AFFECTING RAILWAY CORPORATIONS. [§ 70. 
 
 cases/ and, except in a single case in Illinois,^ it is, I 
 believe, nowhere denied that in such an action an infant 
 plaintiff may recover. In that case, the question is not 
 very fairly presented, and we may suspect that the doc- 
 trine of comparative negligence influenced the court at 
 least to some extent. The plaintiff was nine years of 
 age, and, in company with several older boys, on a Sun- 
 day afternoon, while taking a walk, went upon a turn- 
 table, which was situated in an isolated place, away from 
 any public street or passage, and was injured. It 
 appeared, also, that the table was fastened with a latch, 
 which prevented it from being turned by accident ; but 
 it was not locked. In this state of the case, the court 
 says : "After a careful examination of the testimony this 
 court is of opinion that, in view of the isolated position 
 in which the turn-table was located, the proofs fail to 
 show that appellant was guilty of such want of care as 
 could lawfully charge it with damages for the accident." * 
 This case cannot, therefore, count against the rule. The 
 New York Court o4 Appeals remarks obiter, in McAlpin 
 V. Powell : * " We are not now called to express an 
 opinion as to the soundness of these decisions in such a 
 case," [referring to the turn-table cases,] " and while we 
 are not prepared to uphold them, it is enough to say that 
 the facts are by no means analogous," from which it may 
 
 ' Kansas, &c., R. R. Co., v. Fitz- Am. Rep. 664;' Central Branch, &c.,. 
 
 Simmons, 22 Kan. 686; s. C. 31 Am. R. R. Co. v. Henigh, 23 Kan. 347; 
 
 Rep. 203; S. C. 18 Kan. 34; Kansas, S. C. 33 Am. Rep. 167; Gavin v. 
 
 &c., R. R. Co. z/. Allen, 22 Kan. 285; Chicago, 97 111. 66; S. C. 37 Am. 
 
 Koons V. St. Louis, &c., R. R. Co., Rep. 99; Meeks v. Southern Pacific 
 
 65 Mo. 592; Evansich v. Gulf, &c., R. R Co., 56 Cal. 513; S. c. 38 Am. 
 
 R. R. Co., 57 Texas, 126; S. C. 44 Rep. 67 ; Keyserw. Chicago, &C..R.R. 
 
 Am. Rep. 586; Nagel v. Missouri, Co., Sup. Ct.,Mich., N.W Rep., May 
 
 &c., R. R. Co., 75 Mo. 653 ; s. c. 42 16, 1885 ; s. c. xix Am. Law Rev. 668. 
 
 Am. Rep. 418. Compare Baltimore, 2 St. Louis, &c., R. R. Co., v. 
 
 &c., R. R. Co. -v. Schwindling, loi Bell, 81 111. 76; s. C. 25 Am. Rep. 269. 
 
 Penn. St. 258; s. C. 47 Am. Rep. » St. Louis, &c., R. R. Co. v. Bell, 
 
 706; Cauley v. Pittsburgh, &c., R. supra. 
 
 R. Co., 95 Penn. St. 398; S. C. 40 ■»7oN.Y.l26; S.C. 26 Am. Rep. 561. 
 
§ 7I-] RULE AFFECTING RAILWAY CORPORATIONS. 21/ 
 
 be inferred that the New York courts might not follow 
 the rule of Railroad Co. v. Stout/ should a case in point 
 come before them. But, aside from these two cases, 
 there is no intimation in the reports, as far as my reading 
 has gone, that any contrary views upon this question 
 prevail. The rule is eminently just and reasonable, and 
 commends itself alike to the judgment and the natural 
 instincts. 
 
 § 71. Walking along a railway track. — As a general 
 rule, the courts declare that walking upon the track of a 
 railway is not negligence per se, but, in the event of aa 
 injury, the question of negligence as to that act, is one 
 proper to go to the jury.^ So, also, even when one is 
 upon the track, on horseback, between the crossings, 
 such conduct is held not to constitute negligence as mat- 
 of law. Upon this point, the Maryland Court of Ap- 
 peals says : " He may have been attempting to cross it 
 under circumstances which would relieve him of all im- 
 putation of negligence."* The courts of Pennsylvania, 
 however, go to the opposite extreme.* What would be neg- 
 ligence, sufficient to bar a right of action in a trespasser 
 upon the company's track, will also be sufficient in the 
 case of one of the company's servant's walking or riding 
 upon the track of the company in whose employ he is,, 
 if such action be not in the line of his duty, or essential 
 to the discharge of his duty.® 
 
 • 17 Wall. 657. gence, as matter of law; Moore v, 
 
 2 Carter v. Columbia, &c., R. R. Pennsylvania R. R. Co., 99 Penn. St. 
 
 Co., 19 S. C. 20; s. C. 45 Am. Rep. 301; S. C. 44 Am. Rep. 106; Cauley 
 
 754; Gothard v. Alabama, &c., R. ■z'. Pittsburgh, &c., R. R. Co., 95 Penn, 
 
 R. Co., 67 Ala. 114; Townley v. Chi- St. 398 ; S. C. 40 Am. Rep. 664 ; Vide^ 
 
 cago, &c., R. R. Co., 53 Wis. 626; also, § 67, supra. 
 Fitzpatrick v. Fitchburg R. R. Co., » Northern, &c., R. R. Co. v. State, 
 
 128 Mass. 13 : Hassengerw. Michigan, 29 Md. 420. 
 &c., R. R. Co., 48 Mich. 205; S. C. * § 67, supra. 
 42 Am. Rep 470; Johnson t/. Chicago, ° Burling v. Illinois, &c., R. R. Co., 
 
 &c., R. R. Co., 56 Wis. 274. But in 85 111. 18; Mulherrin v. Delaware^ 
 
 Pennsylvania, such an act is negli- &c., R. R. Co., 81 Penn. St. 366;, 
 
2l8 RULE AFFECTING RAILWAY CORPORATIONS, [§ 7l. 
 
 The omission to give the signals, required by statute, 
 at the public crossing, is not evidence of negligence to- 
 ward a person injured upon the track beyond the cross- 
 ing. This provision of law is made for the benefit only 
 of persons traveling upon the highway and coming law- 
 fully upon the track at a public crossing. The Supreme 
 Judicial Court of Massachusetts says, upon this point : 
 '" The law requires no one to provide protection or safe- 
 guards for mere trespassers or wrong-doers, nor, indeed, 
 for those who enter by mere permission, without induce- 
 ment held out by the owner. Such go at their own risk, 
 and enjoy the license subject to its perils. Toward them 
 there exists no unfulfilled obligation or duty on the part 
 of the owner. "^ 
 
 Where the track of a railway company is used by 
 pedestrians for purposes of travel, by permission of the 
 company, such pedestrian thereby becomes a licensee. 
 He is no longer ^ mere trespasser upon the track at his 
 peril ; and this consideration enhances the duty of the em- 
 ployees of the company to exercise caution and increased 
 prudence in operating the road at this point.** But that 
 
 Maher v. Atlantic, &c., R. R. Co., &c., R. R. Co., 126 Mass. 377 ; S. C. 
 
 *4 Mo. 267; Clark z/. Boston, &c., R. 30 Am. Rep. 686; Meeks v. Southern 
 
 R. Co., 128 Mass. I ; Holland w. Chi- Pacific R. R. Co., 56 Cal. 513; S. C. 
 
 cago, &c., R. R. Co., 5 McCrary, 549; 38 Am. Rep. 67; Terra Haute, &c., 
 
 Miller v. Union Pac. R. R. Co , 2 Id. R. R. Co. v. Graham, 95 Ind. 286; 
 
 87; Sweeney v. Boston, &c., R. R. S. C. 48 Am. Rep. 719; Houston, &c., 
 
 Co., 128 Mass. s- R. R. Co. v. Sympkins, 54 Texas, 
 
 ' Gaynor v. Old Colony, &c., R. R. 615 ; s. C. 38 Am. Rep. 632. 
 Co., 100 Mass. 208. See, also, O'Don- « Illinois, &c. R. R. Co. ». Ham- 
 
 nell V. Providence, &c., R. R. Co., 6 mer, 72 111. 347; Kay v. Penn. R. R- 
 
 R. I. 211; Holmes v. Central R. R. Co., 65 Penn. St. 269; Penn. R. R. 
 
 Co., 37 Ga. 593; Railroad Co. v. Co. w. Lewis, 79 Id. 33 ; Davis w. Chi- 
 
 Houston, 95 U. S. 697; Phila. &c., cago, &c., R. R. Co., 58 Wis. 646; S. 
 
 R. R. Co. V. Spearen, 47 Penn. St. c. 46 Am. Rep. 667; Barry w. New 
 
 300; Elwood V. N. Y. &c., R. R. Co., York, &c., R. R. Co., 92 N. Y. 289; 
 
 4 Hun, 808 ; Harty v. Central R. R. s. C. 44 Am. Rep. 377 ; Solen v. Vir- 
 
 Co., 42 N. Y..468 ; Mason v. Mo. Pac. ginia, &c., R. R. Co., 13 Nevada, 106; 
 
 R. R. Co., 27 Kan. 83; s. C. 41 Am. Fitzpatrick v. Fitchburg R. R. Co., 
 
 Rep. 405; Pittsburgh, &c., R. R. Co. 128 Mass. 13; Daley v. Norwich, &c., 
 
 ■V. Colhns, 87 Penn. St. 405 ; s. c. 30 R. R. Co , 26 Conn 591 ; Kansas, &c., 
 
 Am. Rep. 371 ; Morrissey v. Eastern, R. R. Co. v. Pointer, 9 Kan. 620; s 
 
§ 7I-J RULE AFFECTING RAILWAY CORPORATIONS. 219 
 
 there has grown up a habit on the part of individuals, or 
 of the public generally, to travel over the track on foot, 
 and that no measures have been taken to prevent it, 
 does not change the relative rights and obligations of 
 the public and the company. It is not the less a trespass 
 in that it is repeated, or that there are many trespassers.^ 
 A contrary doctrine is laid down in at least one case in 
 Illinois, the court holding, that when the railroad permits 
 people to pass over their grounds, they thereby tacitly 
 license the public to come upon them, and that they do 
 not become trespassers if they do so in a proper matter.^ 
 This does not appear, however, from subsequent decisions, 
 to be the law in that Stat§,^ and it is, moreover, contrary 
 to the general course of authority in this country.* 
 
 In England, it has been decided in a comparatively 
 recent and very carefully considered case, that where 
 notices have been put up by the railway company, for- 
 bidding persons to cross the track at a certain point, but 
 
 C. 14 Id. 38; Brown v. Hannibal, &c., S. c. 22 Am. Rep. 112; Id. v. Hether- 
 
 R.R.C0., 50 Mo. 461; Hartyw. Cen- ington, 83 Id. 510; Aurona, &c., R. 
 
 tral R. R. Co., 42 N. Y. 468; Murphy R. Co. v. Grimes, 13 Id. 585 ; Parker 
 
 V. Chicago, &c., R. R. Co., 38 Iowa, v. Portland Publishing Co., 69 Me. 
 
 539; S. C. 45 Id. 661. See, also, Sut- 173 ; s. C. 31 Am. Rep. 262; Sullivan 
 
 ton V. N. Y. &c., R. R. Co., 66 N. Y. v. Waters, 14 Ir. C. L. 466; Holmes 
 
 243; Nicholson v Erie Ry. Co., 41 Id. v. N. E. Ry. Co., L. R. 4 Exch. 257. 
 425; Donaldson v. Milwaukee, &c., ^ Illinois, &c., R. R. Co. v. Ham- 
 
 R. R. Co., 21 Minn. 293; Graves v. mer, 72 111. 347. Compare Graves v. 
 
 Thomas, 95 Ind. 361 ; S. C. 48 Am. Thomas, 95 Ind. 361 ; s. C. 48 Am. 
 
 Rep. 727 ; Campbell v. Boyd, 88 N. Rep. 727. 
 
 C. 129: S. c. 43 Am. Rep. 740; Ben- ^ Illinois, &c., R. R. Co. v. Heath- 
 
 nett V. Louisville, &c., R. R. Co., 102 erington, 83 111. 510. 
 U. S. 577. * Kay v. Penn. R. R. Co., 65 Penn. 
 
 > Phila. &c., R. R. Co. v. Hummel, St. 269; Railroad Co. v. Norton, 24 
 
 44 Penn. St. 375; Gaynor v. Old Col- Id. 465 ; Penn. R. R. Co. v. Lewis, 
 
 ony, &c., R. R. Co., 100 Mass. 208; 79 Id. 33; Gillespie v. McGowen, 100 
 
 Bancroft v. Boston, &c., R. R. Co., Id. 144; s. C 45 Am. Rep. 365; 
 
 97 Id. 276; Finlayson 2/. Chicago, &c., Blockman w. Toronto Street Railway 
 
 R. R. Co., I Dill. S79; Indiana, &c., Co., 38 Up. Can. Q. B. 173; Houn- 
 
 R. R. Co. V. Hudelson, 13 Ind. 325; sell v. Smyth, 7 C. B. (N. S.) 731 ; 
 
 Jeffersonville, &c., R. R. Co. v. Gold- Pierce 2/. Whitcomb,48Vt. 127; S.C 21 
 
 smith, 47 Id. 43; Galena, &c., R. R. Am. Rep. 120; Seymour z/. Maddox, 
 
 Co. V. Jacobs, 20 111. 478; Illinois, 16 Q. B. 326; S. C 20 L. J. (Q. B.) 
 
 &c., R. R. Co, V. Godfrey, 71 Id. 5°°; 327- 
 
220 RULE AFFECTING RAILWAY CORPORATIONS. [§ "Jl. 
 
 these notices have been continually disregarded by the 
 public, and the company's servants have not interfered to 
 enforce their observance, the company cannot, in case of 
 an injury to any one crossing the line at that point, set 
 up the existence of the notices by way of answer to an 
 action for damages.^ 
 
 This is the rule of Illinois, &c., R. R. Co. v. Ham- 
 mer,* but it is not the received rule in this country, as we 
 have seen. Our courts very generally arid consistently, 
 adhere to the stricter rule which is well expounded by 
 the Massachusetts Supreme Judicial Court : " The law 
 requires no one to provide protection, or safe-guards for 
 mere trespassers or wrong-doers, nor indeed, for those 
 who enter by mere permission, without inducement held 
 out by the owner. Such go at their own risk, and enjoy 
 the license subject to its perils. Toward them there ex- 
 ists no unfulfilled obligation, or duty, on the part of the 
 owner." * 
 
 The English case of Dublin Ry. Co. v. Slattery, cited 
 above, as stating the present English rule in point, is 
 very luminously set forth, and the opinions of the judges 
 fully reproduced by Mr. Thompson, in his " Law of Neg- 
 ligence," at page 455. This exact and learned writer con- 
 cludes : " The current of authority of this country is, un- 
 doubtedly, with the dissenting opinions in this case,* as to 
 the duty incumbent upon one stepping upon a railroad 
 track, to have all his faculties alive to the sense of danger, 
 the neglect of which precaution amounts to negligence, 
 per se." ^ 
 
 1 Dublin, &c., Ry. Co. v. Slattery, &c.. R. R. Co., 97 Mass. 375; Wil- 
 3 App. Cas. 1 1 55. cox V Rome, &c., R. R. Co., 39 N. Y. 
 
 2 72 111. 347. 358 ; Ernst v. Hudson River R. R. 
 » Gaynor v. Old Colony, &c., R. R. Co., 39 Id. 61 ; Sutton v. N. Y.. &c., 
 
 Co., 100 Mass. 208. R. R. Co , 66 Id. 243 ; Mulherrin v. 
 
 * Dublin Ry. Co. v. Slattery. Delaware, &c., R. R. Co., 81 Penn. 
 
 s Citing, Railroad Co. w. Houston, St. 366; Illinois, &c., R. R. Co. V. 
 
 95 U. S. 697; Bancroft v. Boston, Hetherington, 83 111 510; North Penn. 
 
§ 7I-J RULE AFFECTING RAILWAY CORPORATIONS. 221 
 
 The courts of Pennsylvania have taken high ground 
 upon this question, insisting upon the absolute right of 
 the railway company to a clear track. This position, as 
 I understand it, is not extreme, and if the public could 
 xmderstand that venturing upon a railway track, in this 
 way, is negligence, semper ubique, and that he who so acts, 
 acts at his peril, and in case of injury has no remedy, it 
 can well be believed, that fewer accidents of such a char- 
 acter would happen. 
 
 In Tennessee, the matter of injuries to persons upon 
 the track is regulated by statute.^ " Every railroad com- 
 pany," this statute provides, "shall keep the engineer, 
 firemen, or some other person upon the locomotive, 
 always upon the look out ahead, and when any person, 
 animal, or other obstruction appears upon the road, the 
 alarm whistle shall be sounded, the brakes put down, and 
 every possible means employed to stop the train and pre- 
 vent an accident." The burden of proof is upon the 
 company ; it must show that all the statutory require^ 
 ments have been complied with.^ It is not sufficient 
 merely to show that the accident was inevitable, and 
 would certainly not have been prevented by a strict com- 
 pliance on the part of the railroad, with all the require- 
 ments of the statute.® This is a somewhat more onerous 
 obligation than the law usually imposes upon railway cor- 
 porations in this particular. 
 
 Under certain circumstances, the railroad may owe a 
 duty to a trespasser after the injury. When a trespasser 
 has been run down, it is the plain duty of the railway 
 
 R. R. Co. V. Heileman, 49 Penn. St. Smith v. Nashville, &c., R. R. Co., 6 
 
 60. Id. 589; S. C. 6 Heisk, 174; Nash- 
 
 1 Thompson & Steiger, § 1166 (5.) ville, &c., R. R. Co. v. Prince, 2 Id. 
 
 2 § 1 168. 580; Railroad Co. v. Walker. 11 Id. 
 ' East Tenn. &c., R. R. Co. v. St. 383. See, also, Hill v. Louisville, &c. 
 
 John, S Sneed, 524; Louisville, &c., R. R. Co., 9 Id. 823; Louisville, &c., 
 
 R. R. Co. V. Burke, 6 Coldw. 45 ; R. R. Co. v. Conner, 9 Id. 19. 
 
222 RULE AFFECTING RAILWAY CORPORATIONS. [§ 72. 
 
 company to render whatever service is possible to miti- 
 gate the severity of the injury. The train that has occa- 
 sioned the harm must be stopped, and the injured person 
 looked after ; and, when it seems necessary, removed to 
 a place of safety, and carefully nurged, until other relief 
 can be brought to the disabled person. This is not more 
 a rule of law than a dictate of humanity. Where it ap- 
 peared that a person, run over and thought to be dead, 
 was placed upon some rubbish in a railway warehouse by 
 the station master, and there left over night, during which 
 time he had revived and dragged himself some distance 
 along the floor, where he was found dead the next morn- 
 ing with his body yet warm, in a stooping posture, press- 
 ing his hand upon his leg to stop the flow of blood from 
 a severed artery, it was held that, even though the acci- 
 dent was caused by the negligence of the deceased, still 
 it might go to the jury whether his death did not re- 
 sult from the subsequent negligence of the railway em- 
 ployees.^ 
 
 § 72. Various other acts of trespass upon railway 
 property. — It is negligence per se, to attempt to crawl 
 under cars which have been stopped temporarily upon 
 the tracks.^ And the act of climbing over stationary 
 cars, without looking to see whether or not they were 
 attached to a locomotive, is held gross negligence. 
 When the plaintiff was a child, and the position of the 
 
 1 Northern, &c., R. R. Co. v. State, nibal, &c., R. R. Co., 67 Id. 671 ; Ga- 
 
 29 Md. 420, 442 : I Redf. on Railways, hagan w. Boston, &c., R. R. Co., i 
 
 Sio. Compare Phila., &c., R. R. v. AJlen, 187 ; Lewis v. Baltimore, &c., 
 
 Derby, 14 How. 468; Whatman v. R. R. Co., 38 Md. 588; McMahon w. 
 
 Pearson, L. R. 3 C. P. 422 Northern, &c., R. R. Co., 39 Id. 
 
 « Chicago, &c. R. R. Co. v. Dew- 438. Compare Central Branch, &c., 
 
 ey, 26 111. 255; Id. V. Coss, 73 Id. R. R. Co. v. Henigh, 23 Kan. 347; 
 
 394; Id. V. Sykes, 96 Id. 162; Smith s. C. 33 Am. Rep. 167. 
 V. Chicago, &c., R. R. Co., 55 Iowa, = Lewis v. Baltimore, &c., R. R. 
 
 33; Central R. R. Co. v. Dixon, 42 Co., 3'J Md. 588; Gahagan w. Boston, 
 
 Ga. 327; Ostertag v. Pacific, &c., R. &c., R. R. Co., i Allen, 187. 
 R. Co., 64 Mo. 421 ; Stillson v. Han- 
 
 s 
 
§ 72.] RULE AFFECTING RAILWAY CORPORATIONS. 223 
 
 cars in the street was illegal, the plaintiff's conduct, in 
 thus attempting to cross the train, was not contributory- 
 negligence.^ It is negligence for one in charge of stock 
 to ride on top of cars in which the cattle are transport- 
 ed ; ^ and, wherever it appears that a plaintiff voluntarily 
 placed himself in a dangerous position, where a collision • 
 could not have been avoided by the train-men, such con- 
 duct is held negligence as matter of law.* 
 
 The method of switching, known as making a " run- 
 ning" or "flying" switch, is constantly a fruitful source of ac- 
 cident to persons walking, or being upon the tracks. It 
 consists in detaching the portion of the train to be switched 
 oflF while the cars are in motion, the fore part of the train 
 advancing with increased speed, while the rear portion, 
 proceeding more slowly, is, at the proper time, switched 
 off upon the desired track ; or, the engine may push for- 
 ward a car or part of a train with considerable speed, 
 and then giving it a strong propulsion send it off alone 
 on the desired switch. This practice, in many courts, is 
 condemned as negligent, even toward trespassers.* And, 
 when the cars are suffered to run over a crossing, after 
 being detached from the train, in making a flying switch, 
 whereby travelers are injured, it is held negligence of an 
 aggravated nature, and the practice is not unfrequently 
 sharply denounced by the judges.® 
 
 » Rauch V. Lloyd, 31 Penn. St. also, Pittsburgh, &c., R. R. Co. v. 
 
 358. Kuntson, 69 III. 103. 
 
 2 Little Rock, &c., R. R. Co. v. * Illinois, &c., R. R. Co. v. Bach- 
 Miles, 40 Ark. 298; McCorkle v. Chi- es, 55 111. 379; Chicago, &c., R. R. 
 cago, &c., R. R. Co, 61 Iowa, 555. Co. v. Dignan, 56 Id. 487; Illinois, 
 
 8 Wilds V. Hudson River R. R. &c., R. R. Co. v. Hammer, 72 Id. 
 
 Co., 29 N. Y. 315; Brooks v. Buffa- 347; S. C. 85 Id. 526; Haley v. N. Y., 
 
 lo, &c.. R. R. Co., 25 Barb. 600; s. &c., R. R. Co., 7 Hun, 84; Sutton v. 
 
 C. I Abb. App. Dec. 211; Central R. Id., 66 N. Y. 243 ; Kay v. Penn. R. R. 
 
 R. Co. V. Moore, 24 N. J. Law, 824; Co., 65 Penn. St. 269; S. C. 3 Am. 
 
 Grows V. Maine, &c., R. R. Co., 67 Rep. 628; Murphy W.Chicago, &c.,R. 
 
 Me. 100; Lewis w. Balto., &c., R. R. R. Co., 38 Iowa, 539; s. C 45 Id. 
 
 Co., 38 Md. 588; McMahon v. North- 661. 
 
 ern, &c., R. R. Co., 39 Id. 438. See, » French v. Taunton, &c., R. R. 
 
224 RULE AFFECTING RAILWAY CORPORATIONS. [§ 73. 
 
 § ']2,- Injuries to domestic animals trespassing on 
 railway tracks. — By the common law of England, the 
 owner of cattle is required to confine them to his own 
 premises. Fences, in her majesty's kingdom, are to keep 
 one's cattle in, not to keep other people's cattle out. The 
 owner may drive his cattle from place to place, upon the 
 highway, and he may lawfully herd them upon a com- 
 mon, but, if he permits them to run at large, without a 
 keeper, he is guilty of negligence. If they trespass upon 
 the premises of another, he is a wrong-doer, and liable in 
 damages for any injury consequent upon their trespass.^ 
 
 This rule, that the owner of domestic animals must 
 keep them at home, and that there is no obligation to 
 fence against them, in the absence of statutes requiring 
 owners of land to fence, or permitting stoc£ to run at 
 large, prevails in several of the older States of the Union. 
 It is the law in Maine,* New Hampshire,* Vermont,* 
 
 Co., 116 Mass. 537; Hinckley v. Cape 
 Cod, &c., R. R. Co., 120 Id. 257; But- 
 ler V. Milwaukee, &c., R. R. Co., 28 
 Wis. 487; Brown v. New York, &c., 
 R. R. Co., 32 N. Y. 597 ; Chicago, 
 &c., R. R. Co. V. Garvey, 58 111. 83. 
 
 ' Lade v. Shepherd, 2 Strange, 
 1004; Stevens v. Whistler, 11 East, 
 51; Star V. Rookesby, i Salk. 335; 
 Ricketts v. East and West India 
 Docks, &c., Ry. Co., 12 C. B. 160; s. 
 C. 16 Jur. 1072; 21 L. J. (C. P.), 201 ; 
 12 Eng. Law & Eq. 520 ; 7 Eng. Ry. 
 Cases, 295 ; Dickinson v. London, 
 &c., Ry. Co., I Harr & R. 399 ; El- 
 lis V. Id., 2 Hurl. & N. 424; s. C. 26 
 L. J. (Exch.j, 349; 3 Jur. (N. S.), 
 1008 ; Sharrod v. Id., 4 Exch. 580; S. 
 C. 14 Jur. 23; 20 L. J. Exch. 185; 7 
 Dow & L. 213; 6 Eng. Ry. Cases, 
 239; TillettT/ Ward, (Q B. Div), 23 
 Am. Law Reg. N. S. 245 ; 3 Kent's 
 Com. 536; 3 Black. Com. 211 ; Cool- 
 ey on Torts, 337 ; 2 Waterman on 
 Trespass, § 858, et seq. 
 
 * Little V. Lathrope, 5 Greenleaf, 
 35 ; Lord v. Wormwood, 29 Me. 282 ; 
 S. C. 50 Am. Dec. 586; Perkins v. 
 Eastern, &c., R. R. Co., 29 Me. 307; 
 
 S. C. 50 Am. Dec. 589 ; Norris v. An- 
 droscoggin, &c., R. R. Co., 39 Me. 
 273 ; s. C. 63 Am. Dec. 621 ; Wyman 
 V. Penobscot, &c., R. R. Co., 46 Me. 
 162 ; Wilder v. Maine, &c., R. R. Co., 
 65 Me. 332 ; s. C. 20 Am. Rep. 698; 
 Webber v. Closson, 35 Me. 26 [but 
 modified by statute in 1834; Sturte- 
 vant V. Merrill, 33 Me. 62 ; Knox v. 
 Tucker, 48 Me. 375.] 
 
 ' Makepeace v. Worden, i N. H. 
 16 ; Cressey v. Northern R. R. Co., 
 59 Id. 564; S. C. 47 Am. Rep. 227; 
 Avery v. Maxwell, 4 N. H. 36; Wheel- 
 er V. Rowell. 7 Id. 515; Mayberry v. 
 Concord, &c., R. R. Co., 47 Id. 391; 
 Giles V. Boston, &c., R. R. Co., 55 Id. 
 
 552- 
 * Trow V. Vermont, &c., R. R. Co., 
 
 24 Vt. 488 ; S. C. 58 Am. Dec. 191 ; 
 Jackson v. Rutland, Ac, R. R. Co., 
 
 25 Vt. 150; s. c. 60 Am. Dec. 246; 
 Hurd V. Id.. 25 Id. 116; Holden v. 
 Shattuck, 34 Vt. 336 ; Keenan v. Ca- 
 vanaugh, 44 Vt. 262; Congdonw. Cen- 
 tral, &c., R. R. Co., 56 Vt. 390; S. C. 
 48 Am. Rep. 793; Morse z/. Rutland, 
 &c., R. R. Co., 27 Vt. 49. 
 
§ 73-] RULE AFFECTING RAILWAY CORPORATIONS. 225 
 
 Massachusetts/ Connecticut,^ Rhode Island/ New York * 
 New Jersey,® Pennsylvania,* Delaware,'' Maryland,^ Ken- 
 tucky,* Michigan,^" Wisconsin," Minnesota,^^ Indiana,^^ 
 
 * Rust V. Low, 6 Mass". 90 ; Thay- 
 er V. Arnold, 4 Mete. 589; Steams w. 
 Old Colony, &c., R. R. Co., I Allen, 
 493 ; Eames v. Salem, &c., R. R. Co., 
 98 Mass. 560 ; Lyons v. Merrick, 105 
 Id. 71 ; Maynard v. Boston, &c., R. R. 
 Co., 115 Id. 458; S. C. 15 Am. Rep. 
 119; McDonnell v. Pittsfield, &c., R. 
 R. Co., 115 Id. sd^; Towne v. Nash- 
 ua, &c., R. R. Co., 124 Id. loi ; Dar- 
 ling V. Boston, &c., R. R. Co., 121 
 Id. 118; Rogers v. Newburyport, 
 &c., R. R. Co., I Allen, 16. 
 
 2 Isbell V. New York, &c., R. R. 
 Co., 27 Conn. 393 ; Bulkley v. Id., 27 
 Id. 479; Housatonic, &c., R. R. Co, 
 V. Knowles, 30 Conn. 313. 
 
 ^ Tower v. Providence, &c., R. R. 
 Co., 2 R. I. 404. 
 
 * Tonawanda R. R. Co. v. Munger, 
 5 Denio, 255; S. C. 49 Am. Dec. 
 239, and Mr. Freeman's scholarly 
 note, pp. 248-273, in which the 
 whole law in point is set out ; S. C. 4 
 N. Y. 349 ; 53 Am. Dec. 384 ; Clarke 
 V. Syracuse, &c., R. R. Co., 11 Barb. 
 112; Marsh v. New York, &c., R. R. 
 Co., 14 Id. 364; Terry v. Id., 22 Id. 
 575; Bowman v. Troy, &c., R. R. 
 Co., 37 Id. 516; Cowles V. Balzer, 47 
 Id. 562 ; Bowyer v. Burlew, 3 N. Y. 
 Super. Ct. 362 ; Halloran v. N. Y., &c., 
 R. R. Co., 2 E. D. Smith, 257. In 
 New Ydrk the common law rule is 
 to some extent changed by statute. 
 Read, upon this point. Spinner w. New 
 York, &c., R. R. Co., 67 N. Y. 153. 
 
 " Coxe V. Robbins, 9 N. J. Law, 
 384; Chambers v. Matthews, 18 Id. 
 368; Vandegrift v. Rediker, 22 Id. 
 185 ; S. C. 51 Am. Dec. 262 ; Price v. 
 Central, &c., R. R. Co., 31 Id. 229; S. 
 C. 32 Id. 19. 
 
 * Knight V. Abert, 6 Penn. St. 472 ; 
 s. c. 47 Am. Dec. 478 ; Railroad Co. 
 V. Skinner, 19 Penn. St. 298; S. C. 57 
 Am. Dec. 654; Reeves v. Delaware, 
 &c., R. R. Co., 30 Penn. St. 455 ; Pow- 
 ell V. Penn. R. R. Co., 32 Id. 416; 
 Phila., &c., R. R. Co. v. Hummel, 44 
 Id. 378; Id. V. Spearen, 47 Id. 403 ; 
 
 15 
 
 North Penn. R. R. Co. v. Rehman,49 
 Id. 106; Drake v. Phila., &c., R. R. 
 Co., SI Id. 240; Gregg v. Gregg, 55 
 Id. 227 ; Gillis v. Penn. R. R. Co., 59 
 Id. 142; Penn. R. R. Co. v. Riblet, 66 
 Id. 166. See, also, Sullivan v. Penn. 
 R. R. Co., 30 Id. 240. 
 
 ' Vandergrift v. Delaware, &c., R. 
 R. Co., 2 Hous. 297. 
 
 ' Richardson v. Milbum, 11 Md. 
 340; Baltimore, &c., R. R. Co. v. 
 Lamborn, 12 Id. 257 ; Keech v. Balti- 
 more, &c., R. R. Co., 17 Id. 33 ;. Bal- 
 timore, &c., R. R. Co. V. Mulligan, 
 45 Id. 487 ; Annapolis, &c., R. R. 
 Co. V. Baldwin, 60 Id. 88 ; s.' C. 45 
 Am. Rep. 711. 
 
 9 Louisville, &c., R. R. Co. v. Bal- 
 lard, 2 Mete. 177 ; Louisville, &c., R. 
 R. Co. V. Milton, 14 B. Mon. 75 ; S. C. 
 58 Am. Dec. 647, but modified by 
 statute ; see Kentucky Central R. R. 
 Co. V. Lebus, 14 Bush, 518; Louis- 
 ville, &c., R. R. Co. V. Wainseott, 3 
 Id. 149 ; O'Bannon v. Louisville, &c., 
 R. R. Co., 8 Id. 350. 
 
 1 » Williams v. Michigan, &c., R. R. 
 Co., 2 Mich. 260; S.,C. 55 Am. Dee. 
 59; Johnson v. Wing, 3 Id. 163. 
 
 '* Harrison v. Brown, 5 Wis. 27; 
 Stueke v. Milwaukee, &e., R. R. Co., 
 9 Wis. 203 ; Chicago, &c., R. R. Co. 
 V. Goss, 17 Id. 428 ; Bennett w. Chica- 
 go, &c., R. R. Co., 19 Id. 145; Gal- 
 pin V. Id., 19 Id. 604; McCall v. 
 Chamberlain, 13 Id. 640. 
 
 > 2 Locke V. St. Paul, &c., R.R. Co., 
 IS Minn. 350, modified by statute in 
 1876 [Laws 1876, ch. 24, § i]; Fitzger- 
 ald V. St. Paul, &c., R. R. Co., 29 
 Minn. 336; S. C. 43 Am. Rep. 212; 
 Witherell v. St. Paul, &c., R. R. Co., 
 24 Minn. 410. 
 
 1 3 Page V. Hollingsworth,7 Ind. 3 1 7 ; 
 Williams v. New Albany, &c., R. R. 
 Co., 5 Ind. in; LaFayette, &c., R. 
 R. Co. V. Shriner, 6 Id. 141 ; Brady v. 
 Ball, 14 Id. 317 ; Indianapolis, &c., R, 
 R. Co. V. McClure, 26 Id. 370; Indian- 
 apolis, &c., R. R. Co. V. Harter, 38 
 Id. 558 ; Jeffersonville, &c., R. R. Co. 
 
2 26 RULE AFFECTING RAILWAY CORPORATIONS. [§ "JTf 
 
 and Kansas.^ In these States it has generally been held 
 that permitting stock to run at large is such negligence, 
 on the part of the owner, as to bar his right of recov- 
 ery for injuries to them, unless such injury was wanton 
 or wilful.* The general principles of the law of con- 
 tributory negligence, of course, apply to cases of injury 
 to sfock. If the injury is the result of mutual care- 
 lessness, as in any other case neither has a remedy 
 against the other ; but, if it be not in any degree as- 
 cribable to the negligence of one party, due regard be- 
 ing had to the circumstances of his position, he may 
 recover from the other ; ® but, where each is in fault, 
 neither can recover.'' The plaintiflF's negligence, in or- 
 der to a recovery, must, as in any other case, be the 
 proximate or immediate cause of the injury,® and it 
 
 ■v. Adams, 43 Id. 403 ; Id. v. Under- 
 bill, 48 Id. 389 ; Cincinnati, &c., R. R. 
 Co. V. Street, 50 Id. 225 ; Pittslsurgh, 
 &c., R. R. Co. V. Stuart, 71 Id. 505 ; 
 New Albany, &c., R. R. Co. v. Til- 
 ton, 12 Ind. 3; Michigan, &c., R. R. 
 Co. V. Fisher, 27 Id. 96. 
 
 1 Wells V. Beal, 9 Kan. 597 ; Baker 
 V. Robbins, 9 Id. 303; Sherman v. 
 Anderson, 27 Id. 333 ; s. C. 41 Am. 
 Rep. 414; Union Pacific Railroad Co. 
 V. Rollins, 5 Kan. 168; Kansas, &c., 
 R. R. Co. V. Mowet, 16 Id. 573 ; Lar- 
 kin V. Taylor, 5 Id. 433; Central 
 Branch, &c., R. R. Co. v. Lea, 20 Id. 
 353; Atchison, &c., R. R. Co. v. Heg- 
 wir, 21 Kan. 622; Compiled Laws 
 1879, 784, § 30. Compare Pacific, &c., 
 R. R. Co. V. Brown, 14 Kan. 469; 
 Kansas, &c., R. R. Co. v. Landis, 20 
 Id. 406 ; Id. V. McHenry, 24 Id. ^ot ; 
 Mo. Pac. R. R. Co. v. Wilson, 28 Id. 
 637 ; Central, &c., R. R. Co. v. Phil- 
 lippi, 20 Id. 9. 
 
 ^ See the cases cited above, and es- 
 pecially Railroad Co. v. Skinner, 19 
 Penn. St. 298; s. c. 57 Am. Dec. 
 654, and Tonawanda R. R. Co. v. 
 Munger, 5 Denio, 255 ; s. C. 49 Am. 
 Dec. 239 (note). 
 
 ' Reeves v. Delaware, &c., R. R. 
 
 Co., 30 Penn. St. 455; Waldron v. 
 Portland, &c., R. R. Co., 35 Me. 422; 
 Balcom v. Dubuque, &c.,. R. R. Co., 
 
 21 Iowa, 102 ; Whitbeck v. Id., 21 Id. 
 103 ; Illinois, &c., R. R. Co. v. Good- 
 win, 30 111. 117 ; Fisher v. Farmers', 
 &c., Co., 21 Wis. 74; Knight v. To- 
 ledo, &c., R. R. Co., 24 Ind. 402; In- 
 dianapolis, &c., R. R. Co. V. Wright, 
 
 22 Id. 377 ; Mentges v. New York, 
 &c., R. R. Co., I Hilt. 425 ; Annapo- 
 lis, &c., R. R. Co. V. Baldwdn, 60 Md. 
 88; S. C. 45 Am. Rep. 711; Fames 
 V. Salem, &c., R. R. Co., 98 Mass. 
 560; Tower v. Providence, &c., R. R. 
 Co., 2 R. I. 404. 
 
 * Haigh V. London, &c., Ry. Co., i 
 Fost. & Fin. 646 ; Williams v. Michi- 
 gan, &c., R. R. Co., 2 Mich. 265 ; S. C. 
 55 Am. Dec. 59; Illinois, &c., R. R. 
 Co. V. Middlesworth, 43 111. 65 ; Ohio, 
 &c., Ry. Co. V. Eaves, 42 Id. 288; 
 Pittsburgh, &c., R. R. Co. v. Stuart, 
 
 71 Ind. 504; Railroad Co. v. Skinner, 
 19 Penn. St. 298 ; S. C. 57 Am. Dec. 
 654 ; Perkins v. Eastern, &c., R. R. 
 Co., 29 Me. 307 ; S. C. 50 Am. Dec. 
 
 589. 
 5 Rockford, &c.,5R. R. Co. v. Irish, 
 
 72 HI. 405 ; St. Louis, &c., R. R. 
 Co. V. Todd, 36 Id. 409; South, &c.. 
 
§ 73'] RULE AFFECTING RAILWAY CORPORATIONS. 227 
 
 must appear that permitting the stock to run at large, 
 contributed proximately to the injury, in order to bar a 
 recovery.^ It is sometimes held that turning stock out 
 to graze, even though it is negligence, must be regarded 
 a remote, and cannot be the proximate cause of the 
 injury.* In some States the English rule is held in a 
 more or less modified form. Thus, it is held in several 
 jurisdictions, that it is proper to make a distinction be- 
 tween carelessjy or rashly permitting stock to roam upon 
 the track of a railway, to the peril of the lives and limbs 
 of passengers and employees and the property of the 
 .company, and using due care to restrain cattle, which, in 
 spite of such precautions, break out and are injured. In 
 the one case there is gross negligence, barring any recov- 
 ery, and in the other there is no negligence at all. This 
 is a rational and just distinction. It is declared in many 
 
 cases.' 
 
 3 
 
 R. R. Co. w. Williams, 65 Ala. 74; To- 
 ledo, &c., R. R. Co. V. McGinnis, 71 
 111. 347; E\wingw. Chicago, &c.,R. R. 
 Co., 72 Id. 25; Peoria, &c., R. R. Co. 
 V. Champ, 75 Id. 578 ; Central, &c., R. 
 R. Co. V. Davis, 19 Ga. 437 ; Pacific, 
 &c., R. R. Co. V. Houts, 12 Kan. 328; 
 Searles v. Milwaukee, &c., R.R. Co., 
 35 Iowa, 490; Gates v. Burlington, 
 &c., R. R. Co., 39 Id. 45 ; Kerwhack- 
 er V. Cleveland, &c., R. R. Co., 3 
 Ohio St., 172; s.c. 62 Am. Dec. 246; 
 Smith V. Chicago, &c., R. R. Co., 34 
 Iowa, 506 ; Kuhn v. Id., 42 Id. 420 ; 
 Schwarz v. Hannibal, &c., R. R. Co. , 
 58 Mo. 207. 
 
 » Richmond w. Sacramento, &c.. R. 
 R. Co., 18 Cal. 351; Corwin v. New 
 York, &c., R. R. Co., 13 N. Y. 4.2; 
 Cairo, &c., R. R. Co. v. Murray, 82 
 111. 76; Illinois, &c., R. R. Co. v. 
 Baker, 47 Id. 295 ; Kuhn v. Chicago, 
 &c., R. R. Co., 42 Iowa, 420; Fritz w. 
 Milwaukee, &c., R. R. Co., 34 Id. 
 377; Ewing V. Chicago, &c., R. R. 
 Co., 72 111. 25; Cairo, &c., R. R. Co. 
 w.Woolsey, 85 Id. 370 ; Flint, &c., R. 
 R. Co. w. Lull, 28 Mich. 510; Belle- 
 
 fontaine, &c., R. R. Co.-». Reed, 33 
 Ind. 476 ; Isbell v. New York, &c., R. 
 R. Co., 27 Conn. 393. 
 
 * Kerwhacker v, Cleveland, &c., R. 
 R. Co., 3 Ohio St. 172 ; S. C. 62 Am. 
 Dec. 246 ; Central, &c., R. R. Co. v. 
 Lawrence, 13 Id. 67; Cleveland. &c., 
 R. R. Co. V. Elliott, 4 Id. 474; Vicks- 
 burg, &c., R. R. Co. v. Patton, 31 
 Miss. 157 ; Central, &c., R. R. Co. v. 
 Phillippi, 20 Kan. 9. See, also, Wash- 
 ington V. Baltimore, &c., R. R. Co., 
 17 West Va. 190 ; Bemis v. Connect- 
 icut, &c., R. R. Co., 42 Vt. 37S; S. C. 
 I Am. Rep. 339; Kentucky, &c., R. 
 R. Co. V. Lebus, 14 Bush, 518 ; Law- 
 son V. Chicago, &c., R. R. Co., 57 
 Iowa, 672. 
 
 ' McCandless v. Chicago, &c., R. 
 R. Co., 45 Wis. 365; Curry v. Id., 
 43 Id. 665; Lande v. Id., 33 Id. 640; 
 Fisher v. Farmers', &c,, Co., 21 Id. 
 74; Towne v. Nashua, &c., R. R. 
 Co., 124 Mass. loi; Estes v. Atlan- 
 tic„&c., R. R. Co., 63 Me. 308; Pa- 
 cific, &c., R. R. Co, V. Brown, 14 
 Kan. 469; Cairo, &c.. R. R. Co. v. 
 Woolsey, 85 111. 370 ; Ohio, &c., R. 
 
228 RULE AFFECTING RAILWAY CORPORATIONS. [§ 73. 
 
 In a number of the States the English rule on this 
 point is distinctly repudiated, and one more suited to 
 the wants of a new and comparatively thinly settled 
 country has grown up instead. In these States a fence 
 is regarded as something to keep an^nals out, rather than 
 to keep them in, and it is held not a trespass for cattle 
 to wander upon unenclosed lands. Statutes define what 
 is a " lawful fence," and declare that no one whose close 
 is not surrounded by such a fence shall recover damages 
 from his neighbor, whose cattle break in and do him an 
 injury. It is, therefore, not contributory negligence in 
 these jurisdictions to allow cattle to run at large. This, 
 may be known as the American rule, in contradistinction 
 to the rule we have hitherto been considering. It was 
 set forth with much force and cogency of reasoning in 
 the great case of Kerwhacker v. Cleveland, &c., R. R. 
 Co.,^ by the Supreme Court of Ohio, in 1854, in which 
 it is declared to be the common law of Ohio that the 
 owner of 'domestic animals is guilty neither of an unlaw- 
 ful act nor of an omission of ordinary care in keeping or 
 caring for them, by allowing such stock to run at large 
 on the range of unenclosed lands ; that there is no law 
 which requires land owners to fence their land, and that 
 this equally applies to railway corporations; that the 
 
 R. Co. V. Fowler, 85 Id. 21 ; Toledo, effect that even where animals escape 
 
 &c., R. R. Co. V. Johnston, 74 Id. from a well-fenced enclosure, without 
 
 83; Bulkley v. N. Y. &c., R. R. Co., their owner's fault, and stray upon a 
 
 27 Conn. 479; Isbell v. Id., 27 Id. railway track and are there injured, 
 
 393 ; White v. Concord, &c., R. R. they are trespassers, and for a negli- 
 
 Co., 30 N. H. 188; Trout v. Virginia, gent injury to them the owner cannot 
 
 &c., R. R. Co., 23 Gratt. 619; Pear- recover; see Pittsburgh, &c,, R. R. 
 
 son V. Milwaukee, &c., R. R. Co., Co. v. Stuart, 71 Ind. 504; Spinner 
 
 45 Iowa, 497; South, &c., Ala. R. R. v. New York, &c., R. R. Co., 67 N. 
 
 Co. ?/. Williams, 65 Ala. 74; Balcom Y. 153; North Penn. R. R. Co. v. 
 
 V. Dubuque, &c., R. R. Co., 21 Iowa, Rehman, 49 Penn. St. 104, and com- 
 
 102; Macon, &c., R. R. Co. v. pare Atchison, &c., R. R. Co. v. 
 
 Davis, 13 Ga. 68; Knight v. Toledo, Hegwir, 21 Kan. 622. 
 &c., R. R. Co., 24 Ind. 402; St. 1 3 Ohio St. 172; s. C. 62 Am. 
 
 Louis, &c., R. R. Co. v. Todd, 36 111. Dec. 246. ■ 
 409. But, for a contraiy rule, to the 
 
§ 73'] RULE AFFECTING RAILWAY CORPORATIONS. 229 
 
 owner who leaves his lands unenclosed takes the risk of 
 intrusions upon them from the animals of other persons 
 running at large, and that the owner of the animals, on 
 his part, takes the risk, in allowing them to be at large, 
 of their loss or of injury to them by unavoidable acci- 
 dents arising from any danger into which they may wan- 
 der. This is a complete abrogation of the English rule. 
 The later cases in this State follow it,^ and a similar 
 doctrine is maintained by the courts of Illinois,^ Iowa,* 
 Missouri,* California,^ Colorado,® Oregon,'' Nevada,^ Ala- 
 bama,* West Virginia," Georgia," Mississippi,'^ Arkan- 
 
 1 Cincinnati, &c., R. R. Co. v. 
 Waterson, 4 Ohio St. 431; Cleve- 
 land, &c., R. R. Co. V. Elliott, 4 Id. 
 474; Central, &c., R. R. Co. v. Law- 
 rence, 13 Id. 67; Marietta, &c., R. 
 R. Co. V. Stevenson, 24 Id. 48 ; Cin- 
 cinnati, &c., R. R. Co. V. Smith, 22 
 Id. 227 ; S. C. 10 Am. Rep. 729. But 
 the right to allow domestic animals 
 to run at large has been abridged by 
 statute, Sloan v. Hubbard, 34 Ohio 
 St. 585. 
 
 2 Seeley v. Peters, 10 111. 130; Bass 
 'V. Chicago, &c., R. R. Co., 28 111. 9; 
 Chicago, &c., R. R. Co. v. Cauffman, 
 38 Id. 424 ; Stoner v. Shugart, 45 Id. 
 76; Illinois, &c., R. R. Co. v. Baker, 
 47 Id. 295; Headen v. Rust, 39 Id. 
 186; Toledo, &c., R. R. Co. v. Bray, 
 57 Id. 514; Rockford, &c., R. R. Co. 
 11. Lewris, 58 Id. 49; Toledo, &c., R. 
 R. Co. V. Ingraham, 58 Id. 20; Id. v. 
 Barlow, 71 Id. 640; Rockford, &c., 
 R. R. Co. V. Rafferty, 73 Id. 58; 
 Chicago, &c., R. R. Co. v. Kellam, 
 92 Id. 245; S. C. 34 Am. Rep. 128. 
 
 ' Wagner v. Bissell, 3 Iowa, 396; 
 Alger V. Mississippi, &c., R. R. Co., 
 10 Iowa, 268; Herold v. Meyer, 20 
 Id. 378; Smith V Chicago, &c., R. R. 
 Co., 34 Id. 506; Whitbeck v. Du- 
 buque, &c., R. R. Co., 21 Id 103 ; 
 Van Horn v. Burlington, &c., R. R. 
 Co., 59 Id. 33; Inman v. Chicago, 
 &c., R. R. Co., 60 Id. 459; Miller z/. 
 Id., 59 Id. ^o^\ Frazier v. Nortinus, 
 38 Id. 82 ; -Searles v. Milwaukee, &c., 
 R. R. Co., 35 Id. 490, modified by 
 statute in 1870. See Hallock v. 
 
 Hughes, 42 Iowa, 516; Little v. Mc- 
 Guire, 38 Id. 560; S. C. 43 Id. 447. 
 
 * Gorman v. Pacific, &c., R. R. 
 Co., 26 Mo. 442; Hannibal, &c., R. 
 R. V. Kenney, 41 Id. 271 ; Tarwater 
 z/. Hannibal, &c., R. R. Co., 42 Id. 
 193; McPheeters v. Id., 45 Id. 23; 
 Crafton v. Hannibal, &c., R. R. Co., 
 SS Id. 580 ; Silver v. Kansas City, 
 &c., R. R. Co., 78 Id. 528; s. C. 47 
 Am. Rep. 118; Clardy z/. St. Louis, 
 &c., R. R. Co., 73 Mo. 576; Com- 
 ing's V. Hannibal, &c., R. R. Co., 48 
 Mo. 512. 
 
 = Waters v. Moss, 12 Cal. 535 ; 
 Comerford I'. Dupuy, 17 Id. 308; Lo- 
 gan V. Gedney, 38 Id. 579. 
 
 * Morris V. Fraker, 5 Colo. 425. 
 
 ' Campbell v. Bridwell, S Oregon, 
 
 311- 
 
 8 Chase v. Chase, i S Nev. 259. 
 
 » Mobile, &c., R. R. Co. v. Wil- 
 liams, 53 Ala. 595 ; South Ala., &c., 
 R. R. Co. V. Williams, 65 Id. 74; 
 Alabama, &c., R. R. Co. v. McAl- 
 pine, 71 Id. 545. 
 
 1 " Blaine v. Chesapeake, &c., R. R. 
 Co., 9 West Va. 252 ; Baylor v. Bal- 
 to., &c., R. R. Co., 9 Id. 270. 
 
 i» Macon, &c., R. R. Co. v. Lester, 
 3oGa.9i4; Georgia, &c., R. R. Co v. 
 Anderson, 33 Ga. no; Macon, &c., 
 R. R. Co.z/.Baber,42 Id.301 ; Georgia, 
 &c., R. R. Co. V. Neely, 56 Id. 540; 
 Macon, &c„ R. R. Co. v. Vaughn, 48 
 Id. 464. 
 
 > « Vicksburg, &c., R. R. Co. v. Pat- 
 ton,3i Miss. 157; Memphis,&c.,R. R. 
 V. Blakeney, 43 Id. 218; Raiford v. 
 
230 RULE AFFECTING RAILWAY CORPORATIONS. [§ 73. 
 
 sas,^ South Carolina,* North Carolina,^ Texas,* Virginia,* 
 and Nebraska.* 
 
 It is held not contributory negligence, as matter of 
 law, to permit cattle to go at large, even though it is in 
 violation of a statute.'' There is a contrary rule in Kan- 
 sas,^ while in Illinois, whether or not such a practice is 
 contributory negligence, is usually held a proper question 
 for the jury.' 
 
 In Iowa, where stock is " lawfully " running at large, 
 it is said not to be contributory negligence in an action 
 against a railway company for negligently running cattle 
 down." There is, however, at present a statute in that 
 State which requires a railroad company to fence its track 
 against animals running at large." When contributory 
 negligence is the issue in actions against railway com- 
 panies for injuries to cattle run dowii upon the track, it 
 is very generally held a proper question to go to the jury.^* 
 
 Mississippi, &c., R. R.Co., 43 Id. 233; 
 New Orleans, &c., R. R. Co. v. Field, 
 46 Id. 573; Mobile, &c., R. R. Co. v. 
 Hudson, 50 Id. 572 ; Dickson z/. Parker, 
 3 How. 219; S. C. 34 Am. Dec. 78; 
 Mississippi, &c., R. R. Co. v. Miller, 
 40 Miss. 45. 
 
 1 Little Rock, &c., R. R. Co. v. 
 Pinley, 37 Ark. 562. 
 
 * Danner v. South Carolina, &c., 
 R. R. Co., 4 Rich. (Law), 329; s. c. 
 55 Am. Dec. 678; Wilson v. Wil- 
 mington, &c., R. R. Co., 10 Rich. 
 (Law), 52 ; Murray v. South Carolina, 
 &c., R. R- Co., 10 Id. 227; Rowe 
 •V. Railroad Co., 7 S. C. 167 ; Sim- 
 kims V. Columbia, &c., R. R Co., 
 20 Id. 258; Jones v. Id., 20 Id. 249. 
 But, in Wilson v. Wilmington, &c., 
 R. R. Co., supra, the rule is held 
 of no application to the case of a dog 
 killed on a railway track. 
 
 8 Laws V. North Carolina, &c., R. 
 R. Co., 7 Jones, (Law), 468. 
 
 * Walker v. Herron, 22 Texas, 55 ; 
 Texas, &c., R. R. Co. v. Young, 60 
 Texas, 201. 
 
 5 Trout V. Virginia, &c., R. R. Co., 
 23 Gratt. 619. 
 
 ' Delaney v. Errickson, 11 Neb. 
 533; Burlington, &c., R. R. Co. v. 
 Franzer, 15 Id. 365. 
 
 ' Owens V. Hannibal, &c., R. R. 
 Co., 58 Mo. 387; Schwarz v. Id., 58 
 Id. 207 ; Mumpower v. Id., 59 Id. 245, 
 
 * Central, &c., R. R. Co. v. Lea, 
 20 Kan. 353. 
 
 » Rockford, &c., R. R. Co. v. Irish,. 
 72 111. 40s ; Cairo, &c., R. R. Co. v. 
 Woolsey, 85 Id. 370. Compare Ga- 
 lena, &c., R. R. Co. V. Crawford, 25 
 111. 529; Toledo, &c., R. R. Co. v. 
 Fergusson, 42 Id. 449; Id. v. Mc- 
 Ginnis, 71 Id. 346; Rockford, &c., R. 
 R. Co. V. RaflFerty, 73 Id. 58; Cairo, 
 &c., R. R. Co. V. Murray, 82 Id. 77; 
 Chicago, &c., R. R. Co. v. Engle, 84 
 Id. 397. 
 
 i» McCool V. Galena, &c., R. R. 
 Co., 17 Iowa, 461. 
 
 ' ' SpenceT/. Chicago, &c.,R. R.Co., 
 25 Iowa, 139; Stewart v. Id., 27 Id. 
 282; Fritz V. Milwaukee, &c., R. R. 
 Co., 34 Id. 338; Pearson v. Id., 45 Id. 
 
 497- 
 
 1 s Southworth v. Old Colony, &c., 
 R. R. Co.. 105 Mass. 342; Housa- 
 tonic, &c., R. R. Co. v. Waterbury^ 
 
§ 73-] RULE AFFECTING RAILWAY CORPORATIONS. 23 1 
 
 Where a local municipal ordinance permits cattle to run 
 at large, it is, nevertheless, negligence on the part of the 
 owner of stock to suffer it to do so upon the highway in 
 the vicinity of a railroad track.^ 
 
 But it is not negligence to turn animals loose upon 
 one's own land, where there is an unfenced or defectively 
 fenced railway track adjoining or running through it, 
 which the railway is required by law to fence. ^ 
 
 In States where the modified or American rule pre- 
 vails, as distinguished from the stricter English rule, 
 railway companies are liable only for the ordinary neg- 
 ligence of their servants toward animals straying on 
 their tracks,* and the owners of animals turned out upon 
 the range assume some of the risks incident to their 
 possibly wandering upon the track, which is the same as 
 
 23 Conn. loi ; Indianapolis, &c., R.R. 
 Co. ». Wright. 13 Ind. 213; Ellis v. 
 London, &c., Ry. Co., 2 Hurl & N. 
 424; S. C. 26 L. J. (Exch.) 349; Faw- 
 cett V. York, &c., Ry. Co , 16 Q. B. 
 610; S. C. IS Jur. 173; 20 L. J.(Q. B.) 
 222; Midland,&c.,R.R.Co. v. Daykin, 
 17 C. B. 126; S. C. 25 L. J. (C. P.) 73. 
 
 1 Williams v. Michigan, &c., R. R. 
 Co., 2 Mich. 259; s. C. 55 Am. Dec. 
 59; Fritz V. First Div., &c.. R. R. Co., 
 22 Minn. 404 ; Chicago, &c., R. R. Co. 
 V. Engle, 84 111. 397 ; Marsh v. New 
 York, &c.. R. R. Co., 14 Barb. 364; 
 Clark V. Syracuse, &c., R. R. Co., 11 
 Id. 112; Bowman v. Troy, &c., R. R. 
 Co., 37 Id. 516; Halloran v. New 
 York, &c., R. R., 2 E. D. Smith, 257 ; 
 Tonawanda R. R. Co. v. Munger, 5 
 Denio, 255 ; S. C. 49 Am. Dec. 239 
 (and note) ; S. C. sttb nom., Munger v. 
 Tonawanda R. R. Co., 4 N. Y. 349 ; 
 S. C. 53 Am. Dec. 384; Louisville, 
 &c., R. R. Co. V. Ballard, 2 Mete. 177 ; 
 Michigan, &c., R. R. Co. v. Fisher, 
 27 Ind. 97 ; Van Horn v. Burlington, 
 &c., R. R. Co., 59 Iowa, 33 ; Miller 
 V. Chicago, &c., R. R. Co., 59 Id. 707; 
 Inman v. Id., 60 Id. 459. 
 
 2 Wilder v. Maine, &c., R. R. Co., 
 65 Me. 332 ; s. C. 20 Am. Rep. 698 ; 
 
 McCoy V. California, &c., R. R. Co., 
 40 CjQ. 532 ; S. C. 6 Am. Rep. 623 ; 
 Rogers v. Newburyport, &c., R. R. 
 Co., I Allen, 16; Shepard v. Buffalo, 
 &c., R. R. Co., 36 N. Y. 641 ; Mead 
 V. Burlington, &c., R. R. Co., 52 Vt. 
 278. " It would be a novel doctrine 
 to hold that a railway company, by 
 violating the law, could restrict one's 
 rightful use of his own land." — Mr. 
 Freeman's note to Munger v. Tona- 
 wanda R. R. Co., 49 Am. Dec. 239, 
 271. 
 
 ' Durham w. Wilmington, &c., R. R. 
 Co., 82 N. C. 352 ; Vicksburg, &c., R. 
 R. Co. 7/. Patton, 31 Miss. 157; Mis- 
 sissippi, &c., R. R. Co. V. Miller, 40 
 Miss. 45 ; New Orleans, &c., R. R. Co. 
 V. Field, 46 Id. 574 ; Gorman v. Pacific, 
 &c., R. R. Co., 26 Mo. 442 ; Alger v. 
 Mississippi, &c., R. R. Co., 10 Iowa, 
 268 ; Macon, &c., R. R. Co. v. 
 Baber, 42 Ga. 300; Baltimore, &c., R. 
 R. Co. V. Mulligan, 45 Md. 487 ; St. 
 Louis, &c., R. R. Co. v. Vincent, 36 
 Ark. 451; Louisville, &c., R. R. Co. 
 V. Milton, 14 B. Mon. 61 ; S. C. 58 
 Am. Dec. 647 ; Bellefontaine, &c., R. 
 R. Co. V. Bailey, 11 Ohio St. 333; 
 Hawker v. Baltimore, &c., R. R. Co.. 
 15 West Va. 628. 
 
232 RULE AFFECTING RAILWAY CORPORATIONS. [§ 74. 
 
 to say that the owners assume the risk of all unavoidable 
 accidents ; the railway company on their part assuming 
 to operate the road, wherever the track is unfenced, with 
 due care to avoid any injury to cattle that may stray 
 upon their premises.^ 
 
 " Persons living contiguous to railroads," says the 
 Supreme Court of Mississippi, " have the same right as 
 others in more remote localities to turn their cattle upon 
 the ranges, but they assume the risk of their greater 
 exposure to danger. The cattle are liable to go upon 
 the road ; the company cannot detain them damage 
 feasant any more than any other land-owner, nor can 
 they treat them as unlawfully there, and, therefore, relax 
 their care and efforts to avoid their destruction. The 
 only justification of the company for injury to them is, 
 that in the prosecution of their lawful and ordinary busi- 
 ness, the act could not have been avoided by the use of 
 such care, prudence and skill as a discreet man would put 
 forth to prevent or avoid it." ^ 
 
 § 74. Duty of a railway company to maintain fences. 
 — At common law a railway company is not bound to 
 maintain fences sufficient to keep cattle off its tracks. It 
 
 1 Macon, &c., R. R. Co. v. Davis, 252 ; Baylor v. Baltimore, &c., R. R 
 18 Ga. 680; Central, &c., R. R. Co. Co., 9 Id. 270; Washington v. Balti- 
 V. Davis, 19 Id. 437; Memphis, &c., more, &c., R. R. Co., 17 Id. 190; 
 R. R. Co. V. Blakeney, 43 Miss". 218; Central, &c., R. R. Co. v. Lawrence, 
 Raiford v. Mississippi, &c., R. R. Co., 13 Ohio St. 66 ; Rockford, &c., R. R. 
 43 Id. 233 ; Kerwhacker v. Cleveland, Co. v. Irish, 72 111. 404 ; Macon, &c., 
 &c., R. R. Co., 3 Ohio St. 172; s. C. R. R. Co. v. Lester, 30 Ga. 911 ; Id. 
 62 Am. Dec. 246; Kentucky, &c., R. v. Baber, 42 Id. 300; Georgia, &c., 
 R. Co. V. Lebus, 14 Bush. 518 ; Lit- R. R. Co. v. Neely. 56 Id. 540 ; Locke 
 tie Rock, &c., R. R. Co. w. Finley, 37 v. First Div., &c., R. R. Co., 15 
 Ark. 562. Minn. 350; South, &c., R. R. Co. v. 
 
 2 New Orleans, &c., R. R. Co. v. Williams, 65 Ala. 74; Pearson w. Mil- 
 Field, 46 Miss. 573. See, also, Rich- waukee, &c., R. R. Co., 45 Iowa, 497 ; 
 mond V. Sacramento, &c., R. R. Co., Trout v. Virginia, &c., R. R. Co., 23 
 l8 Cal. 351 ; Macon z/. California, &c., Gratt. 619 ; Baltimore, &c., R. R. Co. 
 R. R. Co., 40 Id. S32 ; Blaine w. Chesa- v. Mulligan, 45 Md. 486 ; Gorman v. 
 peake, &c., R. R. Co., 9 West Va. Pacific, &c., R. R. Co., 26 Mo. 441. 
 
§ 74-] RULE AFFECTING RAILWAY CORPORATIONS. 233 
 
 Stands in this regard upon precisely the same footing as 
 any other owner of land.^ But an obligation on the part 
 of a railway to make and maintain a fence may arise out 
 of contract.* And such a contract will be implied, if in 
 granting the right of way the award of damages was made 
 on the understanding that a fence would be erected and 
 maintained by the company,* In Kentucky, />er conira, 
 it is held that neither the grantor of right of way to a 
 railway company through his property, nor the company 
 itself, is under any legal obligation to maintain fences.* 
 When the track is not fenced by the railroad company, it 
 will be held to assume the risk of damage to its own 
 property, as the result of all intrusions from animals, just as 
 other proprietors are held to do who leave their lands unen- 
 
 * Rex V. Pease, 4 Bam & Adol. 30 ; 
 Star V. Rookesby, i Salk. 335; Ad- 
 ams V. McKinney, Add. 258 ; Rust v. 
 Low, 6 Mass. 94 ; Stackpole v. Healy, 
 16 Id. 33; S. C. 8 Am. Dec. 121 ; Ly- 
 man V. Gipson, 18 Pick. 422; Pool v. 
 Alger, II Gray, 489; Hartford v. 
 Brady, 1 14 Mass. 468 ; McDonald v. 
 Pittsfield, &c., R. R. Co., 115 Id. 564; 
 Mills V. Stark, 4 N. H. 512; S. C. 17 
 Am. Dec. 444; Halladay v. Marsh, 3 
 Wend. 142; S. C. 20 Am. Dec. 678; 
 Brooks 1/. New York, &c., R. R. Co,. 
 13 Barb. 597; Terry v. Id., 22 Id, 
 579; Railroad Co. v. Skinner, 19 
 Penn. St. 298; S. C. 57 Am. Dec. 654; 
 Knight V. New Orleans, &c.,R. R. Co., 
 15 La. Ann. 105; Motire v. Levert, 
 24 Ala. 310; Hurd v. Rutland, &c., 
 R. R. Co., 25 Vt. 116; Perkins v. 
 Eastern, &c., R. R. Co., 29 Me. 307; 
 S. C. 50 Am. Dec. 589; North East- 
 em, &c., R. R. Co. v. Sineath, 8 Rich. 
 (Law) 185; Munger v. Tonawanda 
 R. R. Co., 4 N. Y. 349; S. c. 53 Am. 
 Dec. 384. 
 
 2 Tonawanda R. R. Co. v. Munger, 
 5 Denio, 255; s. c. 49 Am. Dec. 239 
 (and the note) ; Femow v. Dubuque, 
 &c., R. R. Co., 22 Iowa, 528; Joliet, 
 &c., R. R. Co. V. Jones, 20 111. 221 ; 
 
 Drake v. Penn. R. R. Co., 51 Penn. 
 St. 240 ; McDowell v. New York, &c., 
 R. R. Co., 37 Barb. .195 ; Quimby v. 
 Vermont, &c., R. R. Co., 23 Vt. 393; 
 Trow V Id., 24 Id. 487 ; S. C. 58 Am. 
 Dec. 191 ; Norris v. Androscoggfin, 
 &c., R. R. Co., 39 Me. 273; s. C. 63 
 Am. Dec, 621 ; Jackson v. Rutland, 
 &c., R. R. Co., 25 Vt. 150; S. C. 60 
 Am. Dec. 246. Compare Star v. 
 Rookesby, i Salk. 335 ; Binney v. 
 Proprietors, 5 Pick. 505; Adams v. 
 Van Alstyne, 25 N. Y. 232 ; Knox v. 
 Tucker, 48 Me. 373 ; Lawrence v. 
 Coombs, 37 N. H. 335. 
 
 3 Trow V. Vermont, &c., R. R. Co., 
 24 Vt. 487 ; S. C. 58 Am. Dec. 191 ; 
 Lawton v. Fitchburg R. R. Co., 8 
 Cush. 230; S. C. 54 Am. Dec. 753; 
 /« re Rensselaer, &c., R. R. Co., 4 
 Paige, 553. 
 
 * Louisville, &c., R. R. Co. v. Mil- 
 ton, 14 B. Mon. 75 ; S. C. 58 Am. Dec. 
 647. See Louisville, <fcc., R. R. Co. v. 
 Ballard, 2 Mete. 177; Id. v. Wain- 
 scott, 3 Bush. 149: O'Bannon W.Louis- 
 ville, &c., R. R. Co.. 8 Id. 350, and 
 compare, to the same point, Indianapo- 
 lis, &c., R. R. Co. V. Brownenburg, 
 32 Ind. 199. 
 
234 RULE AFFECTING RAILWAY CORPORATIONS. [§ 74. 
 
 closed.^ In Vicksburg, &c., R. R. Co. v. Patton,'* the court 
 says : "As a proprietor, the company is under no greater 
 obligation to fence its road than any other owner of land ; 
 but, in the event of an injury, the fact that the road was 
 not fenced must and should exercise an influence in 
 weighing the degree of care to be employed by the com- 
 pany. When an injury is done, the omission to fence 
 will be weighed along with the other circumstances in 
 determining the measure of diligence to be used by the 
 company or its agents. The want of the fence will in- 
 crease the care required in order to prevent wrong." * In 
 England, and in most, if not all of the States of the 
 Union, the duty of maintaining a sufficient fence upon 
 each side of their tracks is imposed upon railway com- 
 panies by statute, the object being to prevent collisions 
 with cattle straying upon the road.* The English stat- 
 ute has served in some sort as a model, and there is, accord- 
 ingly, an enactment in material particulars essentially 
 similar to that of 8 & 9 Vict., c. 20, in Maine,^ New 
 
 1 Roll. Abr. Trespass, 565, pi. 3; 18 Am. Dec. 699; Hinshaw k. Gilpin, 
 
 2 Waterman on Trespass, 299 ; Ker- 64 Ind. 1 16 ; Duffees v. Judd, 4& 
 whackers. Cleveland, &c., R. R. Co., Iowa, 256; York v. Davies, 11 N. H. 
 
 3 Ohio St. 172, 185 ; S. C. 62 Am. 241 ; Campbell v. Bridwell, 7 Oregon, 
 Dec. 246; Atlantic, &c., R. R. Co. v. 311 ; Gregg v. Gregg, 56 Penn. St 
 Burt, 49 Ga. 606 ; Macon, &c., R. R. 227, as to the rule that whenever an 
 Co. V. Vaughn, 48 Id. 464 ; Vicks- owner of land is bound to maintain a 
 burg, &c.,R.R. Co. 7'. Fatten, 31 Miss, fence, and his neighbors' cattle, by 
 1 57 ; Memphis, &c., R. R. Co. v. Orr, reason of his failure so to do, enter 
 43 Id. 279; New Orleans, &c.,R.R. Co. upon his land and do damage, there 
 V. Field, 46 Id. 573 ; Gorman v. Pacific, being no negli|^ence or fault on the part 
 &c., R.R.Co., 26 Mo. 442 ; Sherman v. of the owner of the trespassing cattle, 
 Anderson, 27 Kan. 333 ; S. C. 41 Am. such owner of land so damaged can- 
 Rep. 414; Annapolis, &c., R. R. Co. not recover therefor, his own negli- 
 V. Baldwin, 60 Md. 88 ; s. C. 45 Am. gent wrong-doing having occasioned 
 Rep. 711- the mischief. 
 
 2 31 Miss. 157. * Railway Clauses Consolidation 
 » Compare Chase v. Chase, 1 5 Ne- Act, 8 & 9 Vict., c. 20, § 68 ; Fawcett v. 
 
 vada, 259 ; W^ills v. Walters, 5 Bush. York, &c., Ry.Co., 20 L.J. (Q. B.) 222. 
 
 351 ; Studwelle/. Ritch, 14 Conn. 292; ^ Norris v. Androscoggin, &c., R. 
 
 Hine v. Munson, 32 Id. 219; Mannw. R. Co., 39 Me. 273; s. C. 63 Am. Dec. 
 
 Williamson, 70 Mo. 661 ; Jones v. 621 ; Perkins v. Eastern, &c., R. R. 
 
 Witherspoon, 7 Jones (Law), 555; Co., 29 Me. 307; s. C. 50 Am. Dec. 
 
 Deyo V. Stewart, 4 Denio, loi ; 589; Wyman v. Penobscot, &c., R. 
 
 Mooney v. Maynard, i Vt. 470; s. C. R. Co. 46 Me. 162; Wilder w. Maine, 
 
§ 74-] RULE AFFECTING RAILWAY CORPORATIONS. 235 
 
 Hampshire,^ Vermont,^ Massachusetts,* Connecticut* 
 Minnesota,® Ohio,* Illinois,'^ Michigan,^ Wisconsin,' Mis- 
 souri," New York," Indiana,^^ lowa,^* Kansas," and Ne- 
 
 &c., R. R. Co., 65 Me. 333; S. C. 20 Co., 21 Wis. 39 ; McCall v. Chamber- 
 Am. Rep. 698. lain, 13 Id. 637 ; Blair v. Milwaukee, 
 ^ Smith V. Eastern, &c., R. R. Co., &c., R. R. Co., 20 Id. 254; Sika v. 
 35 N. H. 356; Horn v. Atlantic, &c., Chicago, &c., R. R. Co., 21 Id. 370; 
 R. R. Co., 35 Id. 169; Dean v. Sulli- Curry v. Chicago, &c., R. R. Co., 43 
 van, &c., R. R. Co., 22 Id. 316; Cres- Id. 665; Veerhusen v. Id., 53 Id. 689. 
 sey V. Northern, &c., R. R. Co., 56 1° Miles w. Hannibal, &c.,R.R. Co., 
 Id. 390; S. C. 47 Am. Rep. 227. 31 Mo., 407; Burton v. North, Mo., 
 
 * Trow V. Veifaont, &c., R. R. Co., &c., R. R. Co., 30 Id. 372 ; Gorham 
 24 Vt. 487; s. C. 58 Am. Dec. 191 ; v. Pacific, &c., R. R. Co., 26 Id. 441 ; 
 Nelson v. Id., 26 Id. 717; Holden v. Cairj v. St. Louis, &c., R. R. Co., (x> 
 Rutland, &c., R. R. Co., 30 Id. 298; Id. 213; Collins v. Atlantic, &c., R. 
 Congdon v. Central, &c.. R. R. Co., R. Co., 65 Id. 230; Silver v. Kansas 
 56 Id. 390; S. C. 48 Am. Rep. 793. City, &c., R. R. Co , 78 Id. 528 ; S. C. 
 
 ' Rogers v. Newbur3fport, &c., R. 47 Am. Rep. 118; Morris ?/. St. Louis, 
 
 R. Co., I Allen. 16; Eames v. Bos- &c., R. R. Co., 58 Mo. 78. 
 
 ton, &c., R. R. Co., 14 Id. 151 ; Bax- *' Suydam v. Moore, 8 Barb. 358 ; 
 
 ter V. Boston, &c., R. R. Co., 102 Staats v. Hudson River R. R. Co., 
 
 Mass. 383 ; Maynard v. Id., 1 1 5 Id. 4 Abb. App. Dec. 287 ; S. C. 3 Keyes, 
 
 458; S. C. 15 Am. Rep. 119. 196; 33 How. Pr. 139; Rhodes v. 
 
 * Bulkley v. New York, &c., R. R. Utica, &c., R. R. Co., S Hun, 344; 
 Co., 27 Conn. 480. Brooks v. New York, &c., R. R. Co.,, 
 
 5 Whittier v. Chicago, &c., R. R. 13 Barb. 594; McDowell e/. New York, 
 Co., 24 Minn. 394; Gillam v. Sioux &c., R. R. Co., 37 Barb. 195; Spin- 
 City, &c., R. R. Co., 26 Id. 268; ner v. Id., 67 N. Y. 153; Tracy v. 
 Fitzgerald w. St. Paul, &c., R. R. Co., Troy, &c., R. R. Co., 38 Id. 433; 
 29 Id. 336: S. C. 43 Am. Rep. 212. Corwin v. New York, &c., R. R. Co., 
 
 « Cincinnati, &c., R. R. Co. v. 13 Id. 42. 
 
 Smith, 22 Ohio St. 227; S. C. 10 Am. ^^ Williams v. New Albany, &c.. 
 
 Rep. 722 ; Sloan v. Hubbard, 34 Ohio R. R. Co., 5 Ind. 1 1 1 ; Toledo, &c., 
 
 St. 585. R. R. Co. w.Cory, 39 Id. 218; Indian- 
 
 ' Galena, &c., R. R. Co. v. Craw- apolis, &c., R. R. Co. v. Kinney, 8 Id. 
 
 ford, 25 111. 529; Terre Haute, &c., 402; Cleveland, &c., R. R. Co. v. 
 
 R. R. Co. V. Augustus, 21 Id. 186; Crossley, 36 Id. 370; Jeffersonville, 
 
 Toledo, &c., R. R. Co. v. Crane, 68 &c., R. R. Co. v. Ross, 37 Id. S4S ? 
 
 Id- 355 i Chicago, &c., R. R. Co. v. Louisville, &c., R. R. Co. v. Cahill, 63 
 
 Umphenour, 69 Id. 198; Peoria, &c., Id. 34; Id. v. Whitsell, 68 Id. 297 r 
 
 R. R. Co. V. Barton, 80 Id. 72 ; Chi- Cincinnati, &c., R. R. Co. v. Hildreth, 
 
 cago, &c., R. R. Co v. Saunders, 85 77 Id. 504. 
 
 Id. 288; Indianapolis, &c., R. R, Co. *' Aylesworth v. Chicago, &c., R. 
 
 V. Hall, 88 Id. 368. R. Co., 30 Iowa, 457 ; Stewart v. Bur- 
 
 8 Gardner v. Smith, 7 Mich. 410; lington, &c., R. R. Co., 32 Id. 561 j 
 Bay City, &c.,R. R. Co. v. Austin, 21 Hinman v. Chicago, &c , R. R. Co., 
 Id. 390 ; Robinson v. Grand Trunk 28 Id. 491 ; Hammond v. Id., 43 Id. 
 R. R. Co., 32 Mich. 322; Toledo, &c., 168; Pearson v. Milwaukee, &c., R. 
 R. R. Co. V. Eder, 45 Id. 329; Grand R. Co., 45 Id. 497; Davis v. Chicago, 
 Rapids, &c., R. R. Co. v. Monroe, 47 &c., R. R. Co., 40 Id. 292. 
 Id. 152. Compare Williams I/. Michi- 1* Kansas, &c., R. R. Co. v. Me- 
 gan, &c., R. R. Co., 2 Mich. 259; S. C. Henry, 24 Kan. 501 ; St. Joseph, &c., 
 55 Am. Dec. 59. R. R. Co. v. Grover, 11 Kan. 302; 
 
 » Brown v. Milwaukee, &c., R. R. Kansas, &c. R. R. Co. v. Mower, 16 
 
236 RULE AFFECTING RAILWAY CORPORATIONS. [§ 74. 
 
 vada.^ These statutes have been held not to require rail- 
 way companies to fence their track within the limits of 
 incorporated cities and towns,^ nor at highway crossings.* 
 Such statutes, moreover, have in general been held to be 
 remedial in their nature, and hence have been liberally 
 construed.* 
 
 And in actions against railway companies, for killing 
 or injuring stock, in consequence of a failure to make or 
 maintain proper fences, these enactments are usually held 
 to apply only to the negligence or misconduct of the de- 
 fendant. The common law rule, that a plaintiff to raain^ 
 tain an action for damages from negligence, must himself 
 be free from contributory fault, remains unchanged, and 
 this, although the defendant may have failed in a statu- 
 tory duty.^ But, in Indiana, it has been held that the lia- 
 bility of a railway company, not fencing its track as re- 
 
 Id. 573; Hopkins v. Kansas, &c., R. 
 R. Co., 18 Id. 462. But, see Sherman 
 V. Anderson, 27 Id. 333 ; S. C. 41 Am. 
 Rep. 414 ; Missouri, &c., R. R. Co. v. 
 Leggett, 27 Kan. 323; Atchison, &c.. 
 R. R. Co. V. Cash, 27 Id. 587. 
 
 ^ Walsh V. Virginia, &c., R. R. Co., 
 8 Nev. III. 
 
 2 Meyer v. North Mo., &c., R. R. 
 Co., 35 Mo. 352 ; Edwards v. Hanni- 
 bal, &c., R. R. Co., 66 Id. 571 ; Davis 
 ■V. Burlington, &c., R. R. Co., 26 Iowa, 
 549; Rogers v. Chicago, &c., R. R. 
 Co., 26 Id. 558; Illinois, t&c, R. R. 
 Co. V. Williams, 27 111. 49; Chicago, 
 &c., R R. Co. V. Rice, 71 Id. 567. 
 
 ^ Soward v. Chicago, &c., R. R. 
 Co., 30 Iowa, 551 ; Missouri, &c., R. 
 R. Co. V. Leggett, 27 Kan. 323 ; Louis- 
 ville, &c., R. R. Co. V. Francis, 58 
 Ind. 389 ; Vanderkar v. Rensselaer, 
 &c., R. R. Co., 13 Barb. 390; Parker 
 ^. Id., 16 Id. 31 S; Halloran v. New 
 York, &c., R. R. Co., 2 E. D. Smith, 
 257; Marfell v. South Wales, &c., Ry. 
 Co., 8 C. B. (N. S.), 525; s. C.7lns. 
 (N. S.), 240; 29 L. J. (C. P.), 315; 8 
 Week. Rep. 765 ; 2 L. T. (N. S.), 
 -629. But see Brace v. New York, &c., 
 
 R. R. Co., 27 N. Y. 269; Toledo, &c., 
 R. R. Co. V. Howell, 38 Ind. 447; Id. 
 V. Owen, 43 Id. 405 ; Walton v. St. 
 Louis, &c., R. R. Co., 67 Mo , 56 ; Da- 
 vis V. Burlington, &c., R. R. Co., 26 
 Iowa, 549. 
 
 * Tracy v. Troy, &c., R. R. Co., 38 
 N. Y. 433 ; Ohio, &c., R. R. Co. v. 
 Brubaker, 47 111. 462 ; Rockford, &c., 
 R. R. Co. V. Heflin, 65 Id. 367. 
 
 5 Kansas, &c., R. R. Co. v. McHen- 
 ry, 24 Kan. 501 ; Marsh v. New York, 
 &c., R. R. Co., 14 Barb. 364 ; Tona- 
 wanda R. R. Co. v. Hunger, 5 Denio, 
 255; S. C. 49 Am. Dec. 239; Munger 
 V. Tonawanda R. R. Co., 4 N. Y. 
 350; s. C. S3 Am. Dec. 384; Curry w. 
 Chicago, &c., R. R. Co., 43 Wis. 665; 
 Hance v. Cayuga, &c., R. R. Co., 26 
 N.Y. 428 ; Browne w. Providence, &c., 
 R. R. Co., 12 Gray, 55 ; Eames v. 
 Boston, &c.,R R. Co., 14 Allen, 151 ; 
 Kansas City, &c., R. R. Co. v. Lan- 
 dis, 24 Kan. 406 ; Toledo, &c., R. R. 
 Co. V. Thomas, 18 Ind. 215 ; Indian- 
 apolis, &c.. R. R. Co. V. Shimer, 17 
 Id. 295 ; Pittsburgh, &c., R. R. Co. v. 
 Methven, 21 Ohio St. 586; Rockford, 
 &c., R. R. Co. V. Irish. 72 111. 405. 
 
§ 74-] RULE AFFECTING RAILWAY CORPORATIONS. 237 
 
 quired by the statute, for injuries to cattle is so absolute 
 that even the contributory negligence of the owner of the 
 cattle is no defence.^ Contributing to a breech in the fence 
 is such negligence on the part of a plaintiff as will bar 
 his recovery from the company.^ Any failure on the 
 part of the plaintiff to perform any duty devolving upon 
 him, in reference to the fence, contributing to the injury 
 will be a defense for the company,^ even though the fence 
 may have been damaged by the railroad itself.* But 
 where the railroad has built its fence in a defective man- 
 ner, it is presumed to have knowledge of the defects, and it 
 is not in such a case incumbent upon a plaintiff to notify the 
 company, of it.^ A failure to repair a division fence, 
 when it is a plaintiff's duty to repair it, is negligence,* 
 but in Texas it is not negligence to leave the repair of 
 fences to the railroad company,^ and in Vermont, where 
 a plaintiff knew that a fence was defective, and that his 
 horse was " breechy," the company was, nevertheless, held 
 
 1 Jeflfersonville, &c., R. R. Co. v. » Poler v. New York, &c., R. R. 
 Ross, 37 Ind. 545; Louisville, &c., Co., 16 N. Y. 476; Chicago, &c., R. 
 R. R. Co. V. Cahill, 63 Id. 34 ; Id. v. R. Co. v. Seirer, 60 III. 295. 
 Whitesell, 68 Id. 297. * Terry v. New York, &c., R. R. 
 
 2 Ellis V. London, Ac, Ry. Co., 2 Co., 22 Barb. 575. 
 
 Hurl.& N. 424; S. C. 26 L.J. (Exch.), ' Hammond v. Chicago, &c., R. 
 
 349; S. C. 3 Jur. (N. S.), ioo8;Haighw. R. Co., 43 Iowa, 169. Compare, 
 
 London, &c., Ry. Co., l Fost.& Fin. 646; upon the question of a plaintiff's duty 
 
 S. C. 8 Week. Rep. 6 ; Sandusky, &c., to notify the company of a defect in 
 
 R. R. Co. V. Sloan, 27 Ohio St. 341 ; the fence, Chicago, &c., R. R. Co. v. 
 
 Dayton, &c., R. R. Co. v. Miami Co. Seirer, 60 111. 295. 
 
 Infirmary, 32 Id. 566 ; Duffy w. New "Sandusky, &c., R. R. Co. v. 
 
 York, &c., R. R. Co,, 2 HUt. 496 ; Sloan, 27 Ohio St. 341 ; Warren v. 
 
 Eames v. Boston, &c., R. R. Co., 14 Keokuk, &c., R. R. Co., 41 Iowa, 484; 
 
 Allen, 151 ; Illinois, &c., R. R. Co. v. St. Louis, &c., R. R. Co. v. Wash- 
 
 McKee, 43 111. 120 ; Id. v. Arnold, 47 bum, 97 111. 293 ; Rockford, &c., R. 
 
 Id. 173; Chicago, &c., R. R. Co. v. R. Co. v. Lynch, 67 III. 149; Toledo, 
 
 Seirer, 60 111. 295 ; Koutz v. Toledo, &c., R. R. Co. v. Pease, 71 Id- I74; 
 
 &c., R. R. Co., 54 Ind. 515; Indian- Georgia, &c., R. R. Co. v. Anderson, 
 
 apolis, &c,, R. R. Co. v. Petty, 25 Id. 33 Ga. no. 
 
 414 ; Id. V. Adkins, 23 Id. 340 ; Id. v. ' Texas, &c., R. R. Co. v. Young, 
 
 Shimer, 17 Id. 295 ; Id. v. Wright, 13 60 Texas, 201. 
 Id. 213; Jones v. Sheboygan, &c., R. 
 R. Co., 42 Wis. 306. 
 
238 RULE AFFECTING RAILWAY CORPORATIONS. [§ 74. 
 
 liable for killing the horse when it had passed the fence 
 and gotten upon the track.^ 
 
 When an adjacent owner has contracted, for a con- 
 sideration, to erect and maintain a fence which the law 
 requires the railway company to make, but has failed to 
 perform his contract, he cannot recover from the com- 
 pany for injury to his stock, on the ground that there was 
 no fence, or that the fence was defective and insufficient." 
 So, also, where the owner of the land agrees or assents to 
 the failure of the railway company to erect fences or cat- 
 tle-guards, there can be no recovery.* And, when the 
 plaintiflF undertakes to repair a fence, it is a question for 
 the jury whether his repairs were such as a prudent ands' 
 cautious man would have made.* 
 
 In many of the States where fence laws have been 
 enacted, as well as where the common law rule obtains, it 
 has been held that the owners of cattle, wrongfully in the 
 highway, or in an adjoining close, cannot recover, under 
 the statute, for their injury or destruction by the railway;' 
 even though animals were lawfully in the highway in 
 
 * Congdon v. Central, &c., R. R. Co., 24 Minn. 394; Hurd w. Rutland, 
 
 Co., 56 Vt. 390; S. C. 48 Am. Rep. &c., R. R. Co., 25 Vt. 116; contra, 
 
 793. See, also, South, &c., R. R. Co. Cincinnati, &c., R. R. Co. v. Hild- 
 
 V. Williams, 65 Ala. 74 ; Cressey v. rath, 77 Ind. 504, 
 Northern, &c., R. R. Co., 59 N. H. * Poler v. New York, &c., R. R. 
 
 564; S. C. 47 Am. Rep. 227. Co., 16 N. Y. 476 ; Chicago, &c., R. 
 
 8 Ellis V. Pacific, &c., R. R. Co., 48 R. Co. v. Seirer, 60 111. 295. 
 Mo. 231 ; Talmadge v. Rensselaer, ^ Trow v. Vermont, &c., R. R. 
 &c., R. R. Co., 13 Barb. 493; Geor- Co., 24 Vt. 487; s. C. 58 Am. Dec. 
 gia, &c., R. R. Co. v. Anderson, 33 191; Staats v. Hudson River R. R. 
 Ga. no; Warren v. Keokuk, &c., Co., 4 Abb. App. Dec. 287; s. C. 3 
 R. R. Co., 41 Iowa, 484; Cincinna- Keyes, 196; Woolson v. Northern, 
 ti, &c., R. R. Co. z/.Waterson, 4 Ohio &c., R. R. Co., 19 N. H. 267; Chapin 
 St 424; Indianapolis, &c.,R.R. Co. Z'. v. Sullivan, &c., R. R. Co., 39 Id. 
 Petty, 25 Ind. 413; Pittsburgh, &c., 564; Giles w. Boston, &c., R. R. Co., 
 R. R. Co. V. Smith, 26 Id. 124; Terre 55 Id. 552 ; Van Horn v. Burlington, 
 Haute, &c., R. R. Co w. Smith, 16 Id. &c.," R. R. Co., 59 Iowa, 33; Miller 
 102. But see, also, New Albany, &c., v. Chicago, &c., R. R. Co., 59 Id. 
 R. R. Co. V. Maiden, 12 Ind. 10, and 707; \nxt\2s1v. Id. 60 Id. 459; Mis- 
 Baltimore, &c., R. R. Co. V. Johnson, souri, &c., R. R. Co. v. Leggett, 27 
 59 Id. 188. Kan. 323; Eames v. Salem, &c., R. 
 
 » Whittierz/. Chicago, &c., R. R. R. Co., 98 Mass. 560. 
 
§ 74"] RULE AFFECTING RAILWAY CORPORATIONS. 239 
 
 charge of a suitable keeper, and breaking away, escape 
 into a lot adjoining a railway track, insufficiently fenced, 
 and thence get upon the track and suffer injury.^ But 
 there is a better rule in Alabama,* where it is held that 
 contributory negligence cannot be imputed to an owner 
 of stock, that escapes from lawful custody, and gets upon 
 the track and is injured.^ Neither, in Iowa, does the law- 
 ful exposure of stock to danger, by the owner, constitute 
 such wilful negligence on his part as to bar a recovery, as 
 matter of law.* 
 
 When a railroad divides a farm into two parts, it is 
 not negligence on the part of the owner to allow his stock 
 to cross the track from one part of the farm to the other 
 at any point, if there be no public way or other assigned 
 place for crossing f but it is negligence to suffer a blind 
 horse to wander about in the neighborhood of an un- 
 fenced railway.*' 
 
 In New York there has been some inconsistency in 
 the decisions upon this point. It appears, however, to 
 be the law in that State that a railway company cannot 
 avoid liability for injuries to stock, in consequence of 
 their failure to comply with the provisions of the statute, 
 
 1 Pittsburgh, &c., R. R. Co. v. R. Co. w. Kellam, 92 111. 245 ; s. c. 34 
 Stuart, 71 Ind. 504; Spinner v. New Am. Rep. 128. 
 
 York, &c., R. R. Co., 67 N. Y. 153; * Smith v. Kansas, &c., R. R. Co., 
 
 Giles V. Boston, &c., R. R. Co., 55 58 Iowa, 622. See, also, White v. 
 
 N. H. 552; Mayberry!/. Concord, &c.. Concord, &c., R. R. Co., 30 N. H. 
 
 R. R. Co., 47 Id. 391; North Penn. 188; Evansville, &c., R. R. Co v. 
 
 R. R. Co. V. Rehman, 49 Penn. St. Barbee, 74 Ind. 169; Sawyer v. Ver- 
 
 104; McDonnell v. Pittsfield, &c., R. mont, &c., R. R. Co., 105 Mass. 196; 
 
 R. Co., 115 Mass. 564; Eames i'. Midland, &c., Ry. Co. w. Daykin, 17 
 
 Boston, &c., R. R. Co., 14 Allen, 151 ; C. B. 126. 
 
 Indianapolis, &c., R. R. Co. v. Shim- ^ Housatonic, &c., R. R. Co. v. 
 
 er, 17 Ind. 295; Id. v. Adkins, 33 Id. Waterbuiy, 23 Conn. loi. See, also, 
 
 340; Hance v. Cayuga, &c., R. R. Co., Jeffersonville, &c., R. R. Co. v. Ross, 
 
 26 N. Y. 428. 37 Ind. 549; Indianapolis, &c., R. R. 
 
 2 South. & North. &c., R. R. Co. Co. v. Townsend, 10 Id. 39; Belle- 
 V. Williams, 65 Ala. 74. fontaine, &c., R. R. Co. v. Reed, 33 
 
 ' To the same efTect, see Kansas, Id. 476; Matthews v. St. Paul, &c., 
 
 &c., R. R. Co. V. Wiggins, 24 Kan. R. R. Co., 18 Minn. 434. 
 
 588; Trout V. Virginia, &c., R. R. « Knight v. Toledo, &c., R. R. 
 
 Co., 23 Gratt. 619; Chicago, &c., R. Co., 24 Ind. 402. Compare Macon, 
 
240 RULE AFFECTING RAILWAY CORPORATIONS. [§ 74. 
 
 merely because the owner of the stock has been guilty of 
 negligence in permitting it to stray at large. And the 
 reason upon which that court proceeds, is that the statute 
 imposes a public duty superior to any merely individual 
 interest.^ There are some decisions in New York to the 
 contrary. Munger t/. Tonawanda R. R. Co.,^ an early and 
 leading case, in which the cause of action arose prior to 
 the passage of the fence law,* decided that the common 
 taw rule, with reference to the duty of restraining cattle, 
 is the law of New York, and that one whose cattle are 
 injured in consequence of straying about and going upon 
 a railroad track is a trespasser, and, therefore, cannot re- 
 cover. This case has been followed, whenever the cause 
 of action does not involve the act of 1848, as to fences,* 
 It is impossible to reconcile all the decisions of the lower 
 courts of New York, in the endeavors of the judges to 
 apply the provisions of the fence law to the common law 
 rule of Munger v. Tonawanda R. R. Co. A line of de- 
 cisions hold that, under the statute as a police regulation, 
 a plaintiff may recover for an injury to his cattle, conse- 
 quent upon a defective fence, notwithstanding the cir- 
 cumstance that the cattle were allowed to roam at large 
 in the vicinity of the track ;^ and another line, of equal 
 value, lay down an exactly contrary rule.* 
 
 &c., R. R. Co. V. Davis, 13 Ga. 68; Co., 2 E. D. Smith, 257; Fitch w.Buf- 
 
 St. Louis, &c., R. R. Co. v. Todd, 36 faJo, &c., R. R. Co., 13 Hun, 668; 
 
 111. 409. Clark w. Syracuse, &c., R. R. Co., 11 
 
 1 Corwinz'. New York, &c., R. R. Barb. 112; Bowman «». Troy, &c., R. 
 
 Co., 13 N. Y. 42 ; Duffy v. Id., 2 Hilt. R. Co., 37 Barb. 516 ; Spinner v. New 
 
 496; Munch V. Id. 29 Barb. 647; York, &c., R. R. Co., 67 N. Y. 156; 
 
 Morrison v. New York, &c., R. R. Co., Eaton v. Delaware, &c., R. R. Co., 57 
 
 32 Barb. 568; McDowell v. Id., 37 Id. Id. 396. 
 
 195; Hodge V. Id., 27 Hun, 394: ' Waldron v. Rensselaer, &c., R. 
 
 Wheeler ; v. Erie Ry. Co., 2 Thomp. R. Co., 8 Barb. 390 ; Labussiere v. 
 
 & C. 634. New York, &c., R. R. Co., 10 Abb. 
 
 a 4 N. Y. 349; s. C. S3 Am. Dec. Pr. 398 (n); Brady w. Rensselaer, &c., 
 
 384 ; S. C. sub mm., Tonawanda R. R. R. Co., 3 Thomp. & C. 537 ; S. C. 
 
 R. Co. V. Munger, 5 Denio, 255; s. C. 1 Hun, 378; Shepard v. Buffalo, &c., 
 
 49 Am. Dec. 239. R. R. Co., 36 N. Y. 641. 
 
 3 Laws of 1848, page 221. « Marsh v. New York, &c., R. R. 
 
 * Halloranw. New York, &c.,R. R. Co., 14 Barb. 364; Mentges v. Id., 
 
§ 74-] RULE AFFECTING RAILWAY CORPORATIONS. 24 1 
 
 The case of Hance v. Cayuga, &c., R. R, Co.,^ which 
 decides that the owner of cattle which escape from his 
 enclosure and go upon a railway track, and are injured, 
 though guilty of no actual negligence, is, nevertheless, 
 chargeable with contributory negligence, and can main- 
 tain no action against the railway company, although it 
 had been guilty of negligence in maintaining the fence 
 and cattle-guards, stands alone in the New York reports. 
 The rule in that State is plainly the reverse of this.^ Cor- 
 win V. New York, &c., R. R. Co.,* is cited as the leading 
 case upon this point. In this case, decided in 1855, it is 
 distinctly laid down that no failure on the part of an 
 owner of stock, as to confining it, can operate to excuse 
 a railway corporation for a failure to comply with the 
 provisions of the statute as to fences, and this is still the 
 law in New York. 
 
 Judge Cooley says : " Indeed, if contributory negli- 
 gence could constitute a defense, the purpose of the stat- 
 ute might be in a great measure, if not wholly, defeated ; 
 for the mere neglect of the railway company to observe 
 the directions of the statute would render it unsafe for 
 the owner of beasts to suffer them to be at large or even 
 on his grounds in the vicinity of the road, so that if he 
 did what, but for the neglect of the company, it would be 
 entirely safe and proper for him to do, the very neglect of 
 the company would constitute its protection, since that 
 neglect alone rendered the conduct of the plaintiff negli- 
 gent."* This is a reasonable view, and one which has 
 been adopted, even in cases where animals were at large 
 in violation of law.® 
 
 I Hilt. 425; Shanahanz'. Id., 10 Abb. " Flint, &c., R. R. Co. v. Lull, 28 
 
 Pr. 398. Mich. 510. 
 
 1 26 N. Y. 428. ' Cairo, &c., R. R. Co. v. Woolsey, 
 
 ' See New York cases already cited. 85 111. 370; Fritz v. Milwaukee, &c., 
 
 * 13 N. Y. 42. R. R. Co., 34 Iowa, 337; Louisville, 
 
 &c., R. R. Co. V. Cahill, 63 Ind. 34. 
 
 16 
 
242 RULE AFFECTING RAILWAY CORPORATIONS. [§ 74. 
 
 In several of the New England States, where it ap- 
 pears that an. owner of stock has knowingly suffered his 
 cattle to run at" large in the highway in the neighborhood 
 of a railroad, and that the railroad company has neglected 
 to fence its tracks, the courts have hejd that, in respect of 
 negligence, " honors are easy " between plaintiff and de- 
 fendant, and hence that there can be no recovery.^ There 
 is much the same rule in Wisconsin.^ The Wisconsin, 
 court seem to have distinguished between actions brought 
 against railway companies for injuries to cattle from fail- 
 ure on their part to construct the fence required by stat- 
 ute, and such as are brought for injuries from failure on 
 the part of the railroad to maintain in good repair, fences 
 already made. In the latter case, it holds that the negli- 
 gence of the plaintiff would be sufficient to defeat his 
 action.* 
 
 One cannot be deprived of the proper and ordinary 
 use of his own property by the failure of a railway com- 
 pany to perform its statutory duty. Therefore, it is not 
 negligence for an owner of stock to pasture it upon his 
 own premises, although he knows that the fence between 
 his land and the railroad, which it is the duty of the com- 
 pany to keep in order, is out of repair and defective.* 
 
 ' Wilder z/. Maine, &c., R. R. Co., R. Co., 42 Wis. 322; Jones v. She- 
 
 65 Me. 333; S. C. 20 Am. Rep. 698; boygan. &c., R. R. Co., 42 Id. 306; 
 
 Trow V. Vermont, &c., R. R. Co., 24 Curry v Chicago, &c., R. R. Co., 43 
 
 Vt.488;s. 0.58 Am. Dec. l9i;Eames Id. 665; Bennett v. Id, 19 Id. 145. 
 
 V. Salem, &c., R. R. Co., 98 Mass. Compare Joliet, &c., R. R. Co. v. 
 
 560; McDonnell v. Pittsfield, &c., R. Jones, 20 111. 221 ; Dunnigan v. Chi- 
 
 R. Co., 115 Id. 564; Woolson v. cago, &c., R. R. Co., 18 Wis. 28; 
 
 Northern, &c., R. R. Co., 19 N. H. Louisville, &c., R. R. Co. v. Spain, 61 
 
 267; Towns w. Cheshire, &c., R. R. Ind. 460; Ricketts v. East & West 
 
 Co., 21 Id. 364; Chapin v. Sullivan, India Docks, &c., R. R. Co., 21 L. J- 
 
 &c., R. R. Co., 39 Id. 564; Mayberiy, (C. P.) 201; s. C. 16 Jur. 1072, 12 
 
 V. Concord, &c., R. R. Co., 47 Id. Eng. Law & Eq. 520; Manchester, 
 
 391 ; Giles V. Boston, &c., R. R. Co., &c.., Ry. Co. v. Wallis, 14 C. B. 213; 
 
 55 Id. 552; Tower w. Providence, &c., S. C. 23 L. J. (C. P.) 185. 
 R. R. Co., 2 R. I. 404. 4 Congdon v. Central, &c., R. R. 
 
 ^ Sikat/. Chicago, &c., R. R. Co., Co., 56 Vt. 390; s. .C. 48 Am. Rep. 
 
 21 Wis. 370. 793; Rogers v. Newburyport, &c.,R. 
 
 3 Lawrence v. Milwaukee, &c., R. R. Co., i Allen, 16; Shepard v. Buf- 
 
§ 75"] RULE AFFECTINQ RAILWAY CORPORATIONS. 243 
 
 § 75. Negligent communication of fire. — What con- 
 stitutes contributory negligence on the part of an owner 
 of property situated near a railroad track, which is dam- 
 aged or destroyed by fire negligently permitted to escape 
 from the company's locomotives, is a question that has 
 very frequently presented itself. 
 
 It is the settled rule of law in England that, while a 
 railway company, authorized by the legislature to use 
 locomotive engines, is not responsible for damage from 
 fire occasioned by sparks emitted therefrom, provided it 
 has taken every precaution in its power, and adopted 
 every means which science can suggest, to prevent injury 
 from fire, and is not guilty of negligence in the manage- 
 ment of the engine, still, in the event of its own negli- 
 gence, it is no defense that the plaintiff who has used his 
 land in a natural and proper way, for the purpose for 
 which it is fit, has thereby allowed it to become peculiarly 
 liable to take fire by neglecting to clear away combustible 
 matter accumulating thereon. The gist of the action is 
 negligence.^ 
 
 " When the legislature has sanctioned and authorized 
 the use of a particular thing, and it is used for the pur- 
 pose for which it was authorized, and every precaution 
 has been observed to prevent injury, the sanction of the 
 legislature carries with it this consequence : that if dam- 
 
 falo, &c., R. R. Co., 35 N. Y. 644; 678; Hammersmith, &c., Ry. Co. v. 
 
 McCoy V. California, &c., R. R. Co., Brand, L. R. 4 H. L. 171 ; Piggoty. 
 
 40 Cal. 532 ; S. C. 6 Am. Rep. 623; Eastern Counties Ry. Co., 3 Man., G. 
 
 Cressey v. Northern, &c., R. R. Co., & S. 230; Aldridge v. Great Western 
 
 59 N. H. 564; S. C. 47 Am. Rep. 227; Ry. Co., 3 Id. 515; Bliss v. London, 
 
 Wilder v. Maine, &c., R. R. Co., 65 &c., Ry.Co., 2 Fost. & Fin. 341 ; Dim- 
 
 Me. 332 ; S. C. 20 Am. Rep. 698 ; Mead mock v. North Staffordshire Ry. Co., 
 
 ^'. Burlington, &c., R. R. Co., 52 Vt. 4 Id. 1058. Compare Blyth w. Bur- 
 
 378; Brady 7/. Rensselaer, &c., R. R. mingham Waterworks Co., 11 Exch. 
 
 Co., I Hun, 378 ; S. C. 3 Thomp. & 783, per Martin B. ; Shaw v. Rob- 
 
 C. 537. herds, 6 Adol. & E. 83, per Denham, 
 
 1 Vaughan v. Taff Vale Ry. Co.. 3 C. J. 
 Hurl. & N. 742 ; s. C. on appeal, 5 Id. 
 
244 RULE AFFECTING RAILWAY CORPORATIONS. [§ 75. 
 
 age results from the use of such thing, independently of 
 negligence, the party using it is not responsible." ^ 
 
 In this case, touching upon the question of the duty 
 of the land-owner to protect himself and his outlying 
 property from the danger incident to the proximity of 
 the railroad track, one of the judges says : " It would 
 require a strong authority to convince me that, because 
 a railway runs along my land, I am bound to keep it in a 
 particular state ; " and another says : " The plaintiff used 
 his land in a natural and proper way for the purposes for 
 which it was fit ; the defendants come to it, he being 
 passive, and do it a mischief." 
 
 In this country the weight of authority sustains the 
 English rule as declared in the case just cited. " The 
 conclusion from the cases," says the Supreme Court of 
 Pennsylvania,^ " is very clear that a plaintiff is not respon- 
 sible for the mere condition of his premises lying along 
 a railroad, but in order to be held for contributory negli- 
 gence, must have done some act, or omitted some duty, 
 which is the proximate cause of his injury concurring with 
 the negligence of the company. Farmers may cultivate, 
 use, and possess their farms and improvements, in the 
 manner customary among farmers, and are not bound to 
 use unusual means to guard against the negligence of the 
 railroad company ; indeed, are not bound to expect that 
 the company will be guilty of negligence." * 
 
 In a comparatively recent case in New Jersey, it is 
 said : " In the leading case in Illinois,* it is assumed that 
 
 > Vaughan v. Taff Vale Ry. Co., Lehigh Valley R. R. Co. v. McKeen, 
 
 cited above. gold. 122; s. C 35 Am. Rep. 644; 
 
 2 Philadelphia, &c., R. R. Co. v. Penn. R. R. Co. v. Hope, 80 Penn. 
 
 Hendrickson, 80 Penn. St. 182; s. c. St. 373; s. c. 21 Am. Rep. 100; Id. 
 
 21 Am. Rep. 97. v. Kerr, 62 Penn. St. 353 ; S. C I Am. 
 
 ' See, also, Philadelphia, &c., R. Rep. 431. 
 
 R. Co. V. Schultz, 93 Penn. St. 341 ; * Chicago, &c., R. R. Co. v. Simon- 
 
§ 75-] RULE AFFECTING RAILWAY CORPORATIONS. 245 
 
 the same duty which will compel the railway company to 
 clear its railway of combustibles, imposes an equal obli- 
 gation on the owner of the contiguous land, but the dis- 
 tinction is obvious. The company uses a dangerous 
 agent, and must provide proper safe-guards ; the land- 
 owner does nothing of the kind, and has the right to re- 
 main quiescent."^ 
 
 This view, as to the duty of an owner of land 
 contiguous jto a railway track, is approved in sev- 
 eral other States. It is the rule in Massachusetts,* 
 Virginia,' West Virginia,* New Hampshire,® Connec- 
 ticut,* New York,' Missouri,* Tennessee,^ California/" 
 Delaware," Nebraska,^* Kansas,^' North Carolina," South 
 
 son, 54 111. 504; S. C. 5 Am. Rep. 155, 
 Breese, J. 
 
 ' Salmon v. Delaware, &c., R. R. 
 Co., 38 N. J. Law, 5; S. C. 20 Am. 
 Rep. 356; S. C. sub nom., Delaware, 
 &c., R. R. Co. V. Salmon, 39 N. J. 
 Law, 299; s. C. 23 Am. Rep. 214. 
 See, also, Morris & Essex R. R. Co. 
 V. State, 36 N. J. Law, 553; Rev. 
 Stat, of N. J. (1877), 911, §§ 13, 14. 
 
 2 Ross V. Boston, &c., R. R. Co., 
 6 Allen, 87. See, also, Eastern R. 
 R. Co. V. Relief Fire Ins. Co., 98 
 Mass. 423; Hart v. Western, &c., R. 
 R. Co., 13 Mete. 99; S. C. 46 Am. 
 Dec. 719; Perley v. Eastern R. R. 
 Co., 98 Mass. 414; IngersoU v. Stock- 
 bridge, &c., R. R. Co., 8 Allen, 438; 
 Genl. Stat, of Mass., chap. 63, § loi. 
 
 » Richmond, &c., R. R. Co. v. 
 Medley, 75 Va. 499; S C. 40 Am. 
 Rep. 734- 
 
 * Snyder v. Pittsburgh, &c., R. R. 
 Co., II West Va. 14. 
 
 " Rowell V. Railroad, 57 N. H. 
 132; S. C. 24 Am. Rep. 59; Genl. 
 Stat, of N. H., chap. 148, §§ 8, 9. 
 
 « Burroughs v. Housatonic R. R. 
 Co., IS Conn. 124; S. C. 38 Am. 
 Dec. 64, and the note. 
 
 ' Fero V. Buffalo, &c., R. R. Co., 
 22 N. Y, 209; Cook V. Champlain 
 
 Trans. Co., i Denio, 91 ; Webb v. 
 Rome, &c., R.R. Co., 49 N. Y. 420; 
 S. C. 10 Am. Rep. 389; Collins v. 
 New York, &c.. R. R. Co., 5 Hun, 
 499; Bevier v. Delaware, &c., Canal 
 Co., 13 Id. 254. 
 
 8 Fitsh V. Pacific, &c., R. R. Co., 
 45 Mo. 322 ; Smith v. Hannibal, &c., 
 R. R. Co., 37 Id. 287 ; Coates v. Mis- 
 souri, &c., R. R. Co., 61 Id. 38; 
 Clemens v. Hannibal, &c., R. R. Co., 
 53 Id. 366; S. C. 14 Am. Rep. 460; 
 Pabner v. Mo. Pac. R. R. Co., 76 
 Mo. 217. 
 
 ' Burke v. Louisville, &c., R. R. 
 Co., 7 Heisk. 451 ; S. C. 19 Am. Rep. 
 618. 
 
 * " Flynn v. San Francisco, &c., R. 
 R. Co., 40 Cal. 14; S. C. 6 Am. Rep. 
 
 595- 
 
 >> Jefferis V. Phila., &c.,R. R. Co., 
 3 Houst. 447. 
 
 12 Burlington, &c., R. R. Co. v. 
 Westover, 4 Neb. 268. 
 
 1 ' St. Joseph, &c., R. R. Co. v. 
 Chase, 1 1 Kan. 47 ; Kansas, &c., R. 
 R. Co. V. Owen, 25 Id. 419; Mis- 
 souri, &c., R. R. Co. V. Cornell, 30 
 Id. 35- 
 
 1* Doggett V. Richmond, &c., R. 
 R. Co., 78 N. C. 305. 
 
246 RULE AFFECTING RAILWAY CORPORATIONS. [§ 75. 
 
 Carolina,^ Indiana,* Maryland,* Georgia* and Wiscon- 
 sin.^ 
 
 In several States the rule of Vaughan v. TafF Vale 
 Ry. Co. is denied, and it is held that the presence of the 
 railway imposes additional burdens and responsibility, as 
 to the use of adjacent property, upon the owners thereof, 
 and that a variety of acts and omissions, not otherwise 
 negligent, become so by reason of the juxtaposition of 
 the railroad track. This is the view taken by the courts 
 of Illinois, though the decisions in point found in the 
 reports of that State appear, many of them, to have been 
 applications of the local rule of comparative negligence, 
 rather than any very explicit repudiation of the English 
 rule." 
 
 In lowa,'^ Vermont,^ and Michigan,' the courts have 
 seemed to incline to rules in opposition to the weight of 
 
 ^ McCready v. South Carolina R. 
 R. Co., 2 Strobh. (Law), 356. 
 
 2 Louisville, &c., R. R. Co.V. Rich- 
 ardson, 66 Ind. 43; s. C. 32 Am. 
 Rep. 94; Pittsburgh, &c., R. R. Co. 
 V. Noel, ^^ Ind. no; Id. v. Hixon, 
 ^^ id. m; lA.v. Jones, 86 Id. 496; 
 s. c. 44 Am. Rep. 334; Louisville, 
 &c., R. R. Co. V. Krinning, 87 Ind. 
 351; Id. V. Hagan, 87 Id. 602. 
 
 » Baltimore, &c., R. R. Co. v. 
 Woodruff, 4 Md. 242; s. C. 59 Am. 
 Dec. 72; Rev. Code of Maryland, 
 (1878), 723, § I. 
 
 * Macon, &c., R. R. Co. v. Mc- 
 Connell, 27 Ga. 481. 
 
 « Kellogg V. Chicago, &c., R. R. 
 Co., 26 Wis. 223 ; s. C. 7 Am. Rep. 
 69; Caswell V. Id., 42 Wis. 193; 
 Martin v. Western, &c., R. R. Co., 23 
 Id. 437; Erd v. Chicago, &c., R. R. 
 Co., 41 Id. 65; Ward v. Milwaukee, 
 &c., R. R. Co., 29 Id. 144; Murphy 
 V. Chicago, &c., R. R. Co., 45 Id. 
 222; s. c. 30 Am. Rep. 721. 
 
 « Illinois, &c., R. R. Co. v. Mills, 
 42 III. 409; Id. V. Frazier, 47 Id. 
 
 505 ; Ohio, &c., R. R. Co. v. Shane- 
 felt, 47 Id. 497 ; Chicago, &c., R. R. 
 Co. v. Simonson, 54 Id. 504; S. C. 5 
 Am. Rep. 155; Great Western, &c., 
 R. R. Co. V. Haworth, 39 111. 347; 
 Bass V. Chicago, &c., R. R. Co., 28 
 Id. 9; Illinois, &c., R. R. Co. v. 
 Nunn, 51 Id. 78; Toledo, &c., R. R. 
 Co. V. Pindar, 53 Id. 447; S. C. 5 
 Am. Rep. 57 ; Id. v. Maxfield, 72 lU. 
 9S; Rev. Stat, of 111., (1880), n6i, 
 chap. 114, §89. 
 
 ' Kesee v. Chicago, &c. , R. R. Co., 
 30 Iowa, 78 ; S. C. 6 Am. Rep. 643 ; 
 Ormond v. Central, &c., R."R. Co., 
 58 Iowa, 742 ; Slosson v. Burlington, 
 &c., R. R. Co., 60 Id. 215; Small 
 V. Chicago, &c., R. R. Co., 55 Id. 
 582. See, also, Rev. Code of Iowa, 
 § 1289. 
 
 8 Bryant v. Central, &c., R. R. 
 Co., 56 Vt. 710. See, also, Genl. 
 Stat, of Vermont (1862), 233, § 78. 
 
 » Marquette, &c., R. R. Co. v. 
 Spear, 44 Mich. 169; s. C. 38 Am. 
 Rep. 242. 
 
§ 75-1 RULE AFFECTING RAILWAY CORPORATIONS. 247 
 
 authority. This tendency has, in Illinois and Iowa, been 
 checked by legislation,^ and it may be believed that at 
 present no court in this country is squarely committed 
 to any rule which contradicts the English doctrine. For 
 the owner of a warehouse near a railway track to leave 
 the windows open in a room in which he had stored 
 husks, rags, cobs and other inflammable material, was 
 held, in Illinois, contributory negligence.* But where 
 only one pane of glass was allowed to remain out of a 
 plaintiff"'s window in a house adjoining a railroad track, 
 it was held, in Wisconsin, not such contributory negli- 
 gence as to prevent a recovery, and the court intimates 
 that even a whole window open would not be any worse 
 in point of negligence.* 
 
 And in Indiana it is expressly held that an open win- 
 dow, under such circumstances, into which sparks from 
 a locomotive flew and set fire to the building, is not such 
 negligence as to defeat an action.* 
 
 In New York it is not negligence to leave the doors 
 open, even though the floor is covered with shavings, in 
 a house adjoining the tracks,^ nor, in Pennsylvania and 
 Delaware, to suffer the roof of a building situated near 
 the track to get into such a condition that sparks can be 
 blown through and set fire to what is within.® 
 
 The Pennsylvania court carries the rule, as understood 
 in England, to the very farthest lifnit. It is a court 
 
 » See statutes cited supra. Richardson, 66 Ind. 43; S. C. 32 Am. 
 
 * Great Western, &^c., R. R. Co. v. Rep. 94. Compare Murphy v. Chl- 
 Haworth, 39 111. 347. Compare Fero cago, &c., R. R. Co., 45 Wis. 222 ; 
 V. Buffalo, &c., R. R. Co., 22 N. Y. s. C. 30 Am. Rep. 721. 
 
 209. ' Fero V. Buffalo, &c., R. R. Co., 
 
 ' Martin v. Western, &c., R. R. 22 N. Y. 209. So, also, in Ross v. 
 
 Co., 23 Wis. 437. See, also, Rowell Boston, &c., R. R. Co., 6 Allen, 87. 
 
 ». Railroad, 57 N. H. 132; S. C 24 » Phila., &c., R. R. Co. w. Hendrick- 
 
 Am. Rep. 69; Ross v. Boston, &c., son, 80 Penn. St. 183; S. C. 21 Am. 
 
 R. R. Co., 6 Allen, 87. Rep. 97; Jefferis v. Phila., &c., R. 
 
 * Louisville, &c., R. R. Co. v. R. Co., 3 Houst. 447. 
 
248 RULE AFFECTING RAILWAY CORPORATIONS. [§ 75. 
 
 that seldom does things by halves. In New Jersey it is 
 not negligence to allow leaves and dried grass and other 
 such combustible stuff to accumulate on land lying near 
 the track of a railway.^ So, in Missouri,* California* 
 West Virginia* Virginia/ Pennsylvania/ Indiana,' and ■ 
 Wisconsin,® but in Vermont, such accumulations are 
 questions for a jury, in respect of the negligence in- 
 volved.' 
 
 To allow shavings and other combustible rubbish to 
 accumulate about an unfinished house near a railway 
 track is negligence,^" while, in some of the western States, 
 to place stacks of grain and^icks of straw upon one's 
 own land near the track is not negligence." When a fire 
 commences, from a spark from a locomotive, on the 
 company's own land in an accumulation of dried leaves 
 and grass, and thence spreads to a similar accumulation 
 upon the adjoining land of the plaintiff, the defendant 
 may show that plaintiff's property was in no better con- 
 dition than its own — and that, therefore, if the fire origi- 
 nally escaped from the locomotive without negligence 
 on the part of the company, the plaintiff was, in that 
 regard, equally in fault.^* 
 
 » Salmon v. Delaware, &c., R. R. Jones, 86 Ind. 496; S. C. 44 Am. 
 
 Co., 38 N. J. Law, 5 ; s.C. 20 Am. Rep. Rep. 334. 
 
 356; Delaware, &c., R. R. Co. W-Sal- s Kellogg v. Chicago, &c., R. R. 
 
 mon, 39 Id. 299; s. C. 23 Am. Rep. 214. Co., 26 Wis. 223; S. C. 7 Am. Rep. 
 
 2 Smith V. Hannibal, &c., R. R. 69; Erd v. Id., 41 Wis. 65. 
 Co., 37 Mo. 287; Fitch V. Missouri, » Bryant v. Central, &c., R. R. Co., 
 
 &c., R. R. Co., 45 Id. 322. 56 Vt. 710. 
 
 » Flynn v. San Francisco, &c., R. > " Coates v. Missouri, &c., R. R. 
 
 R. Co., 40 Cal. 14; s. C. 6 Am. Rep. Co., 61 Mo. 38; Murphy v. Chicago, 
 
 S95- &c., R. R. Co;, 45 Wis. 222; s. c. 
 
 * Snyder v. Pittsburgh, &c., R. R. 30 Am. Rep. 721; Macon, &c., R. 
 
 Co., II West Va. 15. R. Co. v. McConnell, 27 Ga. 481. 
 
 « Richmond. &c., R. R. Co. v. " St. Joseph, &c., R. R. Co. v. 
 
 Medley, 75 Va. 499; s. C. 40 Am. Chase, 11 Kan. 47; Burlington, &c.. 
 
 Rep. 734. R. R. Co. V. Westover, 4 Neb. 268. 
 
 » Penn. R. R. Co. v. Schultz, 93 Compare Collins v. New York, &c., 
 
 Penn. St. 341. R. R. Co., 5 Hun, 499. 
 
 ' Pittsburgh, &c., R. R. Co. v. > 2 Ohio, &c. R. R. Co. v. Shane- 
 
§ 75'] RULE AFFECTING RAILWAY CORPORATIONS. 249 
 
 Conceding the plaintiff's freedom from any duty to 
 use his property with reference to the presence of the 
 railroad, and while he may use his property as he wishes, 
 without anticipating danger from that source, yet, when 
 the fire is kindled, and his property is in peril, it is neg- 
 ligence not to use his best efforts to avoid damage. He 
 must not be supine. He must put the fire out, or rescue 
 his goods, if he can. Failing to do this, he is negligent.^ 
 
 And whe^e a plaintiff owned and operated a ware- 
 house near the main line of a railway, and had a switch 
 from that line running to his warehouse, upon which the 
 company used a locomotive, in doing his business, that 
 threw off sparks, and the plaintiff, after noticing the de- 
 fect in the locomotive and complaining of its use to the 
 company, still continued to allow its use upon his prop- 
 erty, such acquiescence on his part, as to the continued 
 employment of the defective engine, was held negligence 
 sufficient to bar his recovery as against the company.^ 
 
 Where a railway company has negligently set fire to 
 the property of one person, and the fire has spread to the 
 property of another, the question at onc^ arises whether, 
 in an action against the company for damages resulting 
 from the communicated fire, the negligence that kindled 
 the first fire is not too remote to enable the action to be 
 maintained ; or, in other words, when the railway corn- 
 
 felt, 47 111. 497; Fitch v Pacific, &c., nell, 94 111. 448; Kellogg v. Chicago, 
 
 R. R. Co., 45 Mo. 325. See, also, &c., R. R. Co., 26 Wis. 223 ; Illi- 
 
 Atchison, &c., R. R. Co. v. Stan- nois, &c., R. R. Co. v. McClelland, 
 
 ford, 12 Kan. 354; S. C. 15 Am. Rep. 42 111. 355; Toledo, '&c., R. R. Co. 
 
 362; Poeppers v. Missouri, &c., R. v. Pindar, 53 Id. 447; S. C. 5 Am. 
 
 R. Co., 67 Mo. 715; S. C. 29 Am Rep. 57; McMarra v. Chicago, &c., 
 
 Rep. 518; HoagT/. Lake Shore, &c., R. R. Co., 41 Wis. 69; Doggett v. 
 
 R. R Co., 8s Penn. St. 293. Richmond, &c., R. R. Co., 78 N. C. 
 
 » Snyder v. Pittsburgh, &c., R. R. 305. 
 Co, II West Va. 15; Little Rock, » Marquette, &c., R. R. Co. v. 
 
 &c., R. R. Co. V. Hecht, 38 Ark. Spear, 44 Mich. 169; S. C. 38 Am. 
 
 357 ; Chicago, &c., R. R. Co. v. Pen- Rep. 242. 
 
250 RULE AFFECTING RAILWAY CORPORATIONS. [§ 75. 
 
 pany has set A's property on fire negligently, and the fire 
 spreads to B's or C's property and bums it up, can B or 
 C maintain an action against the railway company ? This 
 is precisely the question that arose in the oft-quoted 
 " Squib Case,"^ — the question of proximate and remote 
 cause. The courts, both in England and the United 
 States, are now agreed that in such a case the action will 
 lie.* It has never been pretended that such an action 
 could not be maintained, except in two overruled cases.* 
 In Kuhn v. Jewett, Receiver,* it appeared that a railway 
 train, laden with petroleum, was wrecked through the 
 negligence of the defendant, and the oil escaping, took 
 fire, ran down into a stream of water, and was borne 
 down in a blaze against the plaintiff's stable some dis- 
 tance below, in consequence of which the stable was 
 destroyed. The defendant was held liable, and the vice- 
 chancellor said : " There can be no doubt, I think, if in 
 this instance the flames of the burning oil had been 
 carried by the wind directly from the point of collision 
 
 1 Scott V. Shephaifl, 2 Wm. Black. R. Co., 2 Utah, 518 ; Delaware,«&c., 
 
 S92. R. R. Co. V. Salmon, 39 N. J. Law, 
 
 ? Piggot V. The Eastern Counties 299; S. C. 23 Am. Rep. 214; Small v. 
 
 Ry. Co., 3 Man., G. & S. 230; s. C. Chicago, &c., R. R. Co., 55 Iowa, 
 
 54 Eng. Cora. Law, 229; Smith w. 582; Atchison, &c., R. R. Co. v. 
 
 London, &c., Ry. Co., L. R. 5 C. P. Bales, 16 Kan. 252; Baltimore, &c., 
 
 98; Fent V. Toledo, &c., R. R. Co., R. R. Co. v. Shipley, 39 Md. 251 ; 
 
 59 111. 349; S. C. 14 Am. Rep. 13 [a Webb v. Rome, &c., R. R. Co., 49 N. 
 
 very able opinion by Chief Justice Y. 420; S. C. 10 Am. Rep. 389; Penn. 
 
 Lawrence] ; Hart v. Western, &c., R. R. R. Co. v. Hope, 80 Penn. St 373 ; 
 
 R. Co., 13 Mete. 99 (by Chief Justice S. C. 21 Am. Rep. 100; Lehigh Valley 
 
 Shaw); S. C. 46 Am. Dec. 719; Perley R. R. Co. v. McKeen, 90 Penn. St. 
 
 V. Eastern R. R. Co., 98 Mass. 414; 122; s. C. 35 Am. Rep. 644. Com- 
 
 Cleveland v. Grand Trunk Ry. Co., pare Insurance Co. W.Tweed, 7 Wall. 
 
 42 Vt. 449 ; Poeppers v. Missouri, 44; Milwaukee. &c., R. R. Co. v. Kel- 
 
 &c., R. R. Co., 67 Mo. 715; s. c. 29 logg, 94 U. S. 469; Insurance Co. *. 
 
 Am. Rep. 518: Henry v. Southern, Transportation Co., 12 Wall. 199; In- 
 
 &c., R. R. Co., 50 Cal. 176; Burling- surance Co. v. Seaver, 19 Id. 542. 
 
 ton, &c., R. R. Co. V. Westover, 4 » Ryan v. New York, &c., R. R. 
 
 Neb. 268 ; Hooksett v. Concord, &c., Co., 35 N. Y. 210 ; Penn. R. R. Co. v. 
 
 R. R. Co., 38 N. H. 242 ; Troxler v. Kerr, 62 Penn. St. 353 ; S. C. i Am. 
 
 Richmond, &c., R. R. Co.,. 74 N C. Rep. 431. 
 
 377 ; Anderson v. Wasatch, &c., R. * 33 N. J. Eq. 647. 
 
§ 75'] RULE AFFECTING RAILWAY CORPORATIONS. 25 1 
 
 to the petitioner's building, and it had thus been set on 
 fire and destroyed, that the injury would, in judgment 
 of law, have been the natural and direct, or proximate 
 result of the collision. So, too, if the burning oil had 
 descended from the point where it was first ignited by 
 the mere force of its own gravity, upon the petitioner's 
 building and destroyed it, the connection between cause 
 and effect would have been so close and direct that the 
 defendant's liability could not have been successfully 
 questioned. So, also, if the fire had been carried from 
 the place of its origin to the petitioner's building by a 
 train of combustible matter, deposited in its track by the 
 operation of the laws of nature, the petitioner s injury, I 
 think it could not have been doubted, would have been 
 esteemed the direct result of the defendant's negligence. 
 These principles must rule this case. Their application is 
 obvious, for, although water is almost universally used as 
 a means to extinguish fire, and it seems, at first blush, 
 absurd to say that it can be used for the purpose of ex- 
 tending it, yet it is true, as a matter of fact, that, as an 
 agency for the transmission of burning oil, it is just as 
 certain and effectual in its operation as the wind, in car- 
 rying flame, or a spark, or combustible matter, in spread- 
 ing a fire. In keeping up the continuity between cause 
 and effect it may be just as certain and effectual in its 
 operation as any other material force." Upon a precisely 
 similar state of facts, however, the Supreme Court of 
 Pennsylvania held that even if the defendants were neg- 
 ligent in wrecking their train, still the damage to the 
 plaintiff was too remote to warrant a recovery.' But 
 this, in my judgment, is wholly incorrect. Upon what 
 
 > Hoag V. Lake Shore, &c., R. R. Co., 85 Penn. St. 293; S. C. 27 Am. 
 Rep. 653. 
 
252 RULE AFFECTING RAILWAY CORPORATIONS. [§ 75. 
 
 principle of legal ratiocination can it be determined that 
 when fire, negligently kindled by a railway company, is 
 borne through the air upon a burning shingle, or passes 
 over the dried grass of a prairie and sets fire to my 
 house, the company is liable, but when it is floated down 
 in burning oil upon the waters of a creek and sets fire to 
 my property, the company is not liable ? The Pennsyl- 
 vania court is not likely to be followed upon this point. 
 
CHAPTER VI. 
 
 THE RULE AS AFFECTING HIGHWAYS OTHER THAN RAIL- 
 WAYS. THE LAW OF THE ROAD. 
 
 76. Liability of municipal corporations 
 
 for injuries from defective higK- 
 ways. 
 
 77. Traveler's own negligence con- 
 
 tributing to the injury. 
 73. Right of pedestrian in the road- 
 way. 
 
 79. Deviation from the highway. 
 
 80. Trespass upon the highway. 
 
 81. Sunday traveling. 
 
 82. Pedestrians crossing the highway. 
 
 83. Icy sidewalks. 
 
 84. Injuries to persons in the highway 
 
 from something falling from the 
 adjoining property. 
 
 85. Children injured upon the high- 
 
 way. 
 
 86. Collisions upon the highway. 
 
 87. Injuries upon ferry boats. 
 
 88. Injuries on and about street c9rs. 
 
 89. Walking upon a street railway 
 
 track, 
 go. Alighting from or boarding mov- 
 ing street cars. 
 
 91. Riding upon the platforms of street 
 
 cars. 
 
 92. Passenger's hand or arm outside of 
 
 the car window. 
 
 93. Free passengers and trespassers 
 
 upon street cars. 
 
 § 76, Liability of municipal corporations for injuries 
 from defective highways. — At common law no action 
 lies against a municipal corporation for damages occa- 
 sioned by defective highways.^ " It is well settled that 
 the common law gives no such action. Corporations 
 created for their own benefit stand on the same ground, 
 in this respect, as individuals,* but quasi corporations, 
 created by the Legislature for purposes of public policy, 
 are subject by the common law to an indictment for the 
 neglect of duties enjoined on them, but are not liable to 
 an action for such neglect unless the action has been 
 
 ' Russell V. Men of Devon, 2 T. R. 
 667 ; Bartlett v. Crozier (by Chancel- 
 lor Kent), 17 Johnson, 449; S. c. 8 
 Am. Dec. 428 ; Riddle v. Proprietors, 
 7 Mass. 169; s. C. 5 Am. Dec. 35; 
 Mower v. Inhabitants of Leicester, 9 
 Mass. 247 ; s. C. 6 Am. Dec. 63 ; Hill 
 V. Boston, 122 Mass. 344; S. C. 23 
 Am. Rep. 332 ; Adams v. Wicasset 
 Bank, i Greenl. 361 ; Reed v. Belfast, 
 
 20 Me. 246; Farnum v. Concord, 2 
 N. H. 392 ; Eastman v. Meredith, 36 
 Id. 284; Hyde w. Jamaica, 27 Vt. 443; 
 State V. Burlington, 36 Id. 521 ; Chid- 
 sey V. Canton, 17 Conn. 475; Taylor 
 V. Peckham, 8 R. I. 349 ; 2 Dillon on 
 Munic. Corp., §§ 761, 764. 
 
 2 See, on this point, Angell & Ames 
 on Corporations, §§ 83, 383, 629, 772. 
 
254 RULE AS AFFECTING HIGHWAYS. [§ 76. 
 
 given by some statute."^ Accordingly, inasmuch as 
 among the most important duties which the law im- 
 poses upon municipal corporations is that of making and 
 maintaining roads and streets,* and because every mem- 
 ber of the community has a personal interest in the con- 
 dition of the highway, the right to bring a civil action- 
 against the corporation for an injury resulting from a 
 breach of this duty has generally been conferred by stat- 
 ute.^ Ordinary care must be exercised by the officers and 
 servants of the corporation to keep the highways in a 
 safe and convenient condition for travelers,* and the duty 
 and responsibility of the corporation with respect to the 
 condition of the highway are not limited to the traveled 
 path, but extend to the whole width of the way.® But 
 ditches, properly constructed for the drainage of the 
 highway at the sides of the traveled way, cannot be re- 
 garded defects, as matter of law — nor is the city liable 
 for a failure to place railings between such ditches or 
 drains and the thoroughfare proper.® Except in the 
 States of New Jersey,^ Texas,® Michigan,' and South 
 
 1 Mower v. Inhabitants of Leices- Cush. 524; s. C. 53 Am. Dec. 57; 
 
 ter, supra, and compare Raymond w. Gould v. City of Topeka, 32 Kan. 485; 
 
 City of Lowell, 6 Cush. 524; s. C. 53 S. C. 49 Am. Rep. 496; Johnson v. 
 
 Am. Dec. S7; Providence v. Clapp, Whitefield, 18 Me. 218; s. C 36 Am. 
 
 17 How. (U. S.) 167 ; Jones v. In- Dec. 721; Savage v. Bangor, 40 Me. 
 
 habitants of Waltham, 4 Cush. 299; 176; s. C. 63 Am. Dec. 658. But see 
 
 s. C. 50 Am. Dec. 783; Parker v. George z/. Haverhill, no Mass. 511. 
 Boston & Maine R. R. Co., 3 Cush. " Johnson v. Whitefield, supra ; 
 
 107 ; S. C. 50 Am. Dec. 709. Durant v. Palmer, 39 N. J. Law, 544; 
 
 * Bullock V. Mayor, &c., of New Vale v. Bliss, 50 Barb. 358; Ray- 
 York, Ct. of App., N . Y. , June 9, 1 88 5 ; I mond v. City of Lowell, supra; Streejt 
 Eastern Reporter, 1 70, and cases cited; v. Holyoke, loj Mass. 8$. Contra, 
 Shear. & Redf. on Neg.,§§ 344, 346. Perkins v. Inhabitants of Fayette, 68 
 
 » 2 Dill. Munic. Corp., §786; Rich- Me. 152; S. C. 28 Am. Rep. 84. 
 ards V. Enfield, 13 Gray, 344; City of * Morse v. Inhabitants of Belfast, 
 
 Lexington v. McQuillan, 9 Dana, 513; Sup. Jud. Ct., Me., January 10, 1885, 
 
 S. c. 35 Am. Dec. 159; Providence i Eastern Reporter, 67. 
 V. Clapp, 17 How. (U. S.) 167 ; Milar- ' Pray v. Mayor, &c., 32 N. J. Law, 
 
 key V. Foster, 6 Oregon, 378 ; s. C. 25 394. 
 
 Am. Rep. 531 ; Dutton v. Weare, 17 * City of Navasota v. Pearce, 46 
 
 N. H. 34; s. C. 43 Am. Dec. 590, and Texas, 525; s. c. 26 Am. Rep. 279. 
 
 the cases cited, supra. , « Detroit v. Blakeby, 21 Mich. 84; 
 
 * Raymond v. City of Lowell, 6 ' S. C. 4 Am. Rep. 450; McCutcheoa w. 
 
§ 76.] RULE AS AFFECTING HIGHWAYS. 255 
 
 Carolina/ it is not denied that a municipal corporation 
 is liable to private individuals for any injury which re- 
 sults from the failure of the corporation or its agents to 
 keep the streets and ways in a safe and proper condi- 
 tion.^ The obligation of the corporation is as great in 
 respect of obstructions as defects, and the traveler who 
 is injured because of an obstruction permitted to be in 
 the highway, may have his action against the town * in 
 the same way and to the same extent as in case of injury 
 from a defect in the highway. And, to an action of this 
 sort, it is not a defense that the obstruction was necessary 
 for the repair of the street.* 
 
 Upon the question whether municipal corporations 
 are liable for an injury to a runaway horse or his owner, 
 produced by a defect in a street, the courts are not agreed. 
 In several jurisdictions it is held that highways need 
 not be so constructed that travelers and their horses 
 shall be safe when the horses run away or become 
 unmanageable. This is the rule in Massachusetts,* 
 
 Homer, 43 Mich. 483; s. C. 38 Am. "Jacobs v. Bangor, 16 Me. 187; s. 
 
 Rep. 212. C. 33 Am. Dec. 652. But a person 
 
 ^ Young V. Charleston, 20 S. C. 1 16 ; Injured by an accident occasioned by 
 
 S. C. 47 Am. Rep 827. an authorized public work, constructed 
 
 * Gould V. City of Topeka, 32 Kan. and kept in repair in a lawful man- 
 485 ; S. C. 49 Am. Rep. 496; Brown- ner, has no legal remedy; as, where 
 mgv. City of Springfield, 17 111. 143; one fell into a cattle-guard near the 
 s. c. 63 Am. Dec. 345, and Mr. Free- highway, at a railway crossing, prop- 
 man's note ; O'Neill v. City of New erly constructed and maintained. 
 Orleans, 30 La. Ann. 220; S. C. 31 Jones v. Inhabitants of Waltham, 4 
 Am. Rep. 221; Noble z/. City of Rich- Cush. 299; s. C. 50 Am. Dec. 783; 
 mond, 31 Gratt. 271; S. c. 31 Am. Hawks v. Northampton, 116 Mass. 
 Rep. 726 ; Drew v. Town of Sutton, 423. Compare Bailey v. Mayor of 
 55 Vt. 586; s. C. 45 Am. Rep. 644; New York, 3 Hill, 531 ; S. C. 38 Am. 
 Baker v. Portland, 58 Me. 199; S. C. Dec. 669; Davis z/. Leominster, i Al- 
 4 Am. Rep. 274; Dowd v. Chicopee, len, 184; Reardon v. City, Sup. Ct., 
 116 Mass. 95, and the cases generally Cal., 1885, Pac. Rep., April 2, 1885; 
 cited hitherto. S. C. xix Am. Law Rev. 492. But 
 
 'Dutton V. Weare, 17 N. H. 34; see, also, City v. Neuding, Sup. Ct., 
 
 S. c. 43 Am. Dec. 590; French v. Ohio, 1885, xix Am. Law Rev. 492. 
 Brunswick, 21 Me. 29; s. C. 38 Am. ^ Davis w. Inhabitants of Dudley, 4 
 
 Dec 250; Bennett v. Fifield, 13 R I. Allen, 558; Titus v. Inhabitants of 
 
 139; S. C. 43 Am. Rep. 17; Snow v. Northbridge, 97 Mass. 258; Fogg v. 
 
 Adams, i Cush. 447 ; Barber v. Rox- Inhabitants of Nahant, 98 Id. 576. 
 bury, 1 1 Allen, 320. 
 
256. RULE AS AFFECTING HIGHWAYS. [§ T] . 
 
 Maine,^ and Wisconsin.* But in New York,' Pennsyl- 
 vania,* Georgia,^ Missouri,^ Indiana,' Connecticut,^ New 
 Hampshire,' and Vermont," it is held that where it ap- 
 pears that the corporation was negligent in constructing 
 or maintaining the highway, and such negligence was a 
 cause of the injury, the action may be sustained, and the 
 mere fact of the runaway is not a defense." • 
 
 ^ 1"]. Traveler's own negligence contributing to the 
 injury. — In the earliest case in which contributory negli- 
 gence is pleaded as a defense ^* to an action for damages 
 growing out of the defendant's neglect, it was held that a 
 traveler who suffers an injury from a defect, or obstruc- 
 tion, in the highway, must, in order to recover damages, 
 be able to show that he himself exercised ordinary care 
 to avoid the injury. In that case Lord EUenborough 
 said : " A party is not to cast himself upon an obstruc- 
 tion which has been made by the fault of another, and 
 avail himself *of it, if he do not himself use common and 
 ordinary caution to be in the right." ^* This is the gen- 
 eral rule of law as to contributory negligence, which ap- 
 plies, as of course, to actions brought by travelers for 
 injuries received by reason of defects or obstructions 
 upon the highway." 
 
 ^ Moultonw. Inhabitants of Sanford Pumphrey, 59 Ind. 78; S. C. 26 Am. 
 
 51 Me. 127; Perkins v. Inhabitants of Rep. 76. 
 Fayette, 68 Id. 152. » Baldwin v. Turnpike Co., 40 Conn. 
 
 * Dreher v. Inhabitants of Fitch- 238. 
 
 burg, 22 Wis. 675 ; Houfe v. Inhabit- » Winship v. Enfield, 42 N. H. 
 
 ants of Fulton, 29 Id. 296; s. C. 9 197. 
 
 Am. Rep. 568. 1 » Hunt v. Town of Pownal, 9 Vt. 
 
 ' Ring V. City of Cohoes, ^^ N. Y. 411. 
 
 83; s. C. 33 Am. Rep. 574. n Compare Sherwood v. City of 
 
 * Hey V. City of Philadelphia, 8i Hamilton, 37 Up. Can. (Q. B.) 410. 
 Penn. St. 44; S. C. 22 Am. Rep. 733. »2 Butterfield v. Forrester, ll East, 
 
 5 City of Atlanta v. Wilson, 59 Ga. 60, and see § 4, supra. 
 644; S. C. 27 Am. Rep. 396; 60 Ga. » ' yide the opinion in full at page 
 
 473- 9. supra. 
 
 •Hull V. City of Kansas, 54 Mo. »* Smith w. Smith, 2 Pick. 621; S.C. 
 
 601 ; S. C. 14 Am. Rep. 487. 13 Am. Dec. 464; Thompson v. 
 
 ' Brooksville, &c., Turnpike Co. v. Bridgewater, 7 Pick. 190; Lane ». 
 
^77-1 
 
 RULE AS AFFECTING HIGHWAYS. 
 
 257 
 
 When the highway is out of order it is held, as a 
 general rule, not negligent to use it in as prudent a way 
 as practicable, which is to say that using a defective high- 
 way is not negligence as a matter of law. It would be 
 an extraordinary rule that made it negligence not to stay 
 indoors whenever the highway is out of repair.^ But 
 when the condition of the highway is such that it is ob- 
 viously dangerous to go upon it, and it appears that the 
 plaintiff might easily have taken another course and 
 avoided the danger, there can be no recovery in case of 
 an injury. To go upon such a highway, under such cir- 
 
 Crombie, 12 Id. 177; Adams v. Car- 
 lisle, 21 Id. 147; Carsleyw. White, 21 
 Id. 255 ; Palmer v. Andover, 2 Cush. 
 60S; Kirby v. Boylston Market, 14 
 Gray, 251 ; Hibbard v. Tiiompson, 
 109 Mass. 288 ; Reed v. Northfield, 13 
 Pick. 94 ; S. C 23 Am. Dec. 662 ; Hor- 
 ton V. Ipswich, 12 Cush. 493 ; Johnson 
 v. Whitefield, 18 Me. 286; S. C. 36 
 Am. Dec. 721 ; French v. Brunswick, 
 21 Me. 29; S. C. 38 Am. Dec. 250; 
 Raymond v. City of Lowell, 6 Cush. 
 524; S. C. 53 Am. Dec. 57 ; Gerald v. 
 Boston, 108 Mass. 584; Baker v. Port- 
 land, 58 Me. 199; S. C. 4 Am. Rep. 
 274 ; Steele v. Burkhardt, 104 Mass. 
 59; S. C. 6 Am. Rep. 191; City of 
 Vicksburg v. Hennessy, 54 Miss. 391 ; 
 S. C. 28 Am. Rep. 354 ; Evans v. City 
 of Utica, 69 N. Y. 166 ; S. C. 25 Am. 
 Rep. 165; King v. Thompson, 87 
 Penn. St. 365 ; S. C. 30 Am. Rep. 364; 
 Bruker w.Town of Covington, 69 Ind. 
 33 ; S. C. 35 Am. Rep. 202 ; Town of 
 Albion V. Hetrick, 90 Ind. 545 ; S. C. 
 46 Am. Rep. 230; City of Montgom- 
 ery V. .Wright, 72 Ala. 41 1 ; s. C. 47 
 Am. Rep. 422; Erie v. Magill, loi 
 Penn. St. 616; S. C. 47 Am. Rep. 
 739 ; City of Bloomingfton v. Perdue, 
 99 111. 329 ; City of Huntington v. 
 Breen, 77 Ind. 29; Henry Co. Turn- 
 pike Co. V. Jackson, 86 Id. 1 1 1 ; S. C. 
 44 Am. Rep. 274 ; Wilson v. Trafal- 
 gar, 93 Ind. 287 ; McLaury v. City of 
 McGregor, 54 Iowa, 717; Munger v. 
 Marshjdltown, 56 Id. 216 ; S. C. 59 Id. 
 763 ; Cressy v. Postville, 59 Id. 62 ; 
 
 17 
 
 Parkhill v. Brighton, 61 Id. 103 ; 
 Osage City v. Brown, 27 Kan. 74 ; 
 City of Salina v. Trosper, 27 Id. 
 S45 ; Corbett v. City of Leavenworth, 
 27 Id. 673 ; Maultby z/. Id., 28 Id. 
 745 ; Loewer v. City of Sedalia, 77 
 Mo. 431 ; Drew v. Town of Sutton, 55 
 Vt. 586 ; S. C. 45 Am. Rep. 644 ; Rey- 
 nolds V. Burlingfton, 52 Vt. 300 ; Fas- 
 sett V. Roxbury, 55 Id. 552 ; Durant 
 V. Palmer, 39 N. J. Law, 544 ; Maloy 
 V. New York, &c., R. R. Co., 58 Barb. 
 182; Templeton w. Montpelier, 56 Vt. 
 328; Dewire v. Bailey, 131 Mass. 169; 
 S. C. 41 Am. Rep. 219; Weston v. 
 Elevated R. R. Co., 73 N. Y. 595 ; Au- 
 rora V. Dale, 90 111. 46; Hutchison v. 
 Collins, 90 111. 410; Aurora v. Hill- 
 man, 90 Id. 61. 
 
 • City Council of Montgomery v. 
 Wright, 72 Ala. 41 1 ; S. C. 47 Am. 
 Rep. 422 ; City of Huntington v. 
 Breen, 77 Ind. 29; Henry Co. Turn- 
 pike Co. V. Jackson, 86 Id. 11 1 ; s. C. 
 44 Am. Rep. 274; Albion v. Hetrick, 
 90 Ind. 545 ; S. C. 46 Am. Rep. 230 ; 
 Osage City v. Brown, 27 Kan. 74 ; 
 City of Salina v. Trosper, 27 Id. 545 ; 
 Dewire v. Bailey, 131 Mass. 169; s. 
 C. 41 Am. Rep. 219; Weston v. Ele- 
 vated R. R. Co., 73 N. Y. S9S ; Dooley 
 V. Meriden, 44 Conn. 117; s. C. 26 
 Am. Rep. 433 ; Aurora v. Hillman, 90 
 111. 61 ; Reed v. Northfield, 13 Pick. 
 94 ; s. c. 23 Am. Dec. 662 ; Evans v. 
 City of Utica, 69 N. Y. 166; s. C. 25 
 Am. Rep. 165 ; Nave v. Flack, 90 Ind. 
 205 ; s. C. 46 Am. Rep. 205. 
 
258 RULE AS AFFECTING HIGHWAYS. [§ 'J'J. 
 
 cumstances, is negligence sufficient to bar an action for 
 damages.^ Mere knowledge, however, of defects or danger 
 in the highway, on the part of the person injured thereby, is 
 not conclusive evidence of negligence contributing to the 
 injury.^ But it has been held in Indiana that a person in- 
 jured by an obstruction in the highway, of which he has 
 knowledge, and which he attempts to pass in the night, 
 when it was too dark for him to see it, has no remedy, such 
 conduct being negligence /^r se^ So, also, where one at- 
 tempts in the dark to pass an open cellarway in a sidewalk, 
 knowing, but for the moment forgetting about it, it is such 
 contributory negligence as will defeat his recovery for 
 injuries sustained by falling into it* In City of Bloom- 
 ington V. Perdue * it was held that a young woman who 
 was injured by a fall upon a defective pavement, which 
 induced a more serious internal disorder, but who, from 
 ignorance of the nature of her affection, did not prompt- 
 ly call in a physician, was not, on that account, guilty of 
 
 1 City of Erie v. Magill, loi Penn. Burgess, 61 Md. 29 ; Bullock v. May- 
 St. 616; S. C. 47 Am. Rep. 739; Flem- or, &c., Ct. of App., N. Y., June 9, 
 ing V. City of Lockhaven, Sup. Ct., 1885,1 Eastern Reporter, 170; Mault- 
 Penn., Week. Notes Cas , Nov. 13, by v. City of Leavenworth, 28 Kan. 
 1884; Schaefier z/. City of Sandusky, 745; Loewer w. City of Sedalia, 77 Mo. 
 33 Ohio St. 246; S. C. 31 Am Rep. 431 ; Templeton w. Montpelier, 56 Vt. 
 533 ; City of Centralia v. Krouse, 64 328; Dewire v. Bailey, 131 Mass. 169; 
 111. 19; Durkin w. Troy, 61 Barb. 437; S. C 41 Am. Rep. 219; City Council 
 Parkhill v. Brighton, 61 Iowa, 103; of Montgomery v. Wright, 72 Ala. 
 Wilson V. City of Charlestown, 8 Al- 41 1 ; S. C. 47 Am. Rep. 422 ; Town of 
 len. 137; Corbett v. City of Leaven- Albion i/. Hetrick, 90 Ind. 545; S. C. 
 worth, 27 Kan. 673. 46 Am. Rep. 230; Nave v. Flack, 90 
 
 2 Reed v. Northfield, 13 Pick. 94; Ind. 205 ; S. C 46 Am. Rep. 205. 
 
 S. C. 23 Am. Dec. 662; Marble v. ' President and Trustees of the 
 
 Worcester, 4 Gray, 404 ; Frost v. Wal Town of Mt. Vernon v. Desouchett, 
 
 tham, 12 Allen, 86; Snow v Housa 2 Ind. 586; s. C. 54 Am. Dec. 467. 
 tonic R. R. Co., 8 Id. 450; Henry Co. * Bruker v. Town of Covington, 69 
 
 Turnpike Co. v. Jackson, 86 Ind. in; Ind 33 ; S. C. 35 Am. Rep. 202 ; and, 
 
 S. C. 44 Am. Rep. 274 ; Estelle v. see King v Thompson, 87 Penn. St. 
 
 Lake Crystal, 27 Minn. 243 ; Kelly v. 365 ; S. C. 30 Am. Rep. 364 ; Parkhill 
 
 Railroad Co., 28 Id. 98; Evans v. w. Brighton, 61 Iowa, 103; Auroras. 
 
 City of Utica, 69 N. Y. 166; s. C. 25 Dale, 90 111. 46; Hutchison v. Collins, 
 
 Am Rep. 165 ; Griffin v. Auburn, 58 90 Id. 410. 
 N. H. 121; Thomas v. Mayor, 28 "99 111. 329. 
 Hun, no; County Commissioners v. 
 
§ yy.^ RULE AS AFFECTING HIGHWAYS. 259 
 
 contributory negligence ; that the disease superinduced 
 by the fall was a proximate effect of the fall, and that an 
 action for damages therefor would lie against the city.^ 
 
 The law imposes upon the traveler the duty of ordin- 
 ary care, and this is the measure of his obligation when 
 he brings an action for damages for an injury sustained 
 by reason of an obstacle or defect in the highway. Ac- 
 cordingly, in proportion as the risk of injury increases, 
 must his care and diligence to avoid injury be increased. 
 It is, therefore, held that a traveler is bound to exercise 
 greater care and attention in passing over a highway 
 while it is undergoing repairs, by which it is partly ob- 
 structed, than he would be required to exercise under or- 
 dinary circumstances,* and more care in going about in 
 the darkness of the night than in the day-time.* 
 
 Where one, by permission of the city authorities, has 
 dug up the sidewalk, or some portion of it, in excavat- 
 ing for a vault, or other proper purpose, and has built a 
 
 ^ " I must close this amusing sub- a jury. If, like Rachel, she wept for 
 ject, " says Mr Irving Browne, at the her children, and would not be corn- 
 end of his chapter on Negligence, in forted, a question of continuing 
 " Humorous Phases of the Law," p. damage is presented, too delicate to 
 216, "with the case of Bovee v. be weighed by any scales which the 
 Town of Danville, 53 Vt. 190, an law has yet invented.' " 
 action for injuries from a defective ^ Jacobs v. Bangor, 16 Me. 187; s. 
 highway, one of the injuries being a C. 33 Am. Dec. 652. 
 miscarriage, whereby twins prema- ' Crofts v. Waterhouse, 3 Bing. 
 turely came into the world, and proved 319 ; Davis v. Falconbridge, a recent 
 love's labor lost. The trial court English county court case, reported, 
 charged that plaintiff, the mother, on this point, in 45 Am. Rep. 650, 
 was entitled to recover, among other note ; Bruker v. Covingfton, 69 Ind. 
 things for any injury to her feelings 33; S. C. 35 Am. Rep. 202; Maloy v. 
 occasioned by the misfortune. Ross, New York, &c., R. R. Co., 58 Barb. 
 J., in reviewing this part of the 182; King z/. Thompson, 87 Penn. St. 
 charge, uses this language : ' Any 365 ; S. C. 30 Am. Rep. 364 ; Parkhill 
 injured feelings following the miscar- v. Brighton, 61 Iowa, 103 ; Pierce v. 
 riage, not part of the pain naturally Whit comb, 48 Vt. 127; s. C. 21 Am. 
 attending it, are too remote to be Rep. 120; Evans v. City of Utica, 69 
 considered an element of damage N. Y. 166; S. C. 25 Am. Rep. 165; 
 If the plaintiff lamented the loss of Rector w. Pierce, 3 Thomp. & C. 
 her offspring, such grief involves too 416; Durant v. Palmer, 39 N. J. Law, 
 much an element of sentiment to be 544. 
 left to the conjecture and caprice of 
 
26o RULE AS AFFECTING HIGHWAYS. [§ 78. 
 
 bridge or passageway over his excavation somewhat 
 higher than the rest of the walk, he is bound to make 
 the passage reasonably safe, but not exactly as safe as 
 though there were no excavation ; and, in passing such a 
 place, it is the duty of travelers to exercise somewhat 
 more than their usual care and caution.^ But when one 
 unlawfully places an obstruction in the highway, whereby 
 an injury is occasioned, he is, of course, liable;* and, 
 where one suffers an injury from an obstruction in the 
 street, for which obstruction he is himself responsible, he 
 cannot recover.* 
 
 § 78. Right of pedestrian in the roadway. — A pedes- 
 trian has the right to walk in the roadway if he prefers 
 it. Lord Denham says : " A man has a right to walk in 
 the road if he pleases. It is a way for foot passengers as 
 well as for carriages." His lordship, however, wisely 
 adds : " But he had better not, especially ait night, when 
 carriages are passing along."* 
 
 It is also the right of a pedestrian to cross the road 
 or street at any point, not only at regular crossings, but 
 elsewhere.* But a pedestrian, while he has equal, has no 
 
 ' Nolan V. King, <)J N. Y. 565 ; s. B. Div. 327 ; Milarkey v. Foster, 6 
 
 C. 49 Am. Rep. 561 ; Clifford v. Dam, Oregon, 378; S. C. 25 Am. Rep. 531; 
 
 81 N. Y. 56; McGuire v. Spence, 91 Bennett v. Lovell, 12 R. I. 166; S. 
 
 Id. 303 ; S. C. 43 Am. Rep. 668 ; VVas- C. 34 Am. Rep. 628. 
 
 mer v. Delaware, &c., R. R. Co., 80 » Sioux City v. Weare, 59 Iowa, 
 
 N. Y. 212; S. C. 36 Am. Rep. 608; 95. Compare Bom v. Albany Plank 
 
 Irvine w. Wood, 51 N. Y. 224; s. C Road, loi Penn. St, 334. 
 
 10 Am. Rep. 603; Rehbergw. May- * Boss v. Litton, 5 Car. & P. 407; 
 
 or, &c., of New York, 91 N. Y. 137; Raymond v. City of Lowell, 6 Cush. 
 
 S. C. 43 Am. Rep. 657; Brusso v. 524; s. C. 53 Am. Dec. 57; Coombs 
 
 City of Buffalo, 90 N. Y. 679. For a v. Purrington, 42 Me. 332 ; Gerald v. 
 
 contrary doctrine see City of Lincoln Boston, 108 Mass. 584. See, also, 
 
 W.Walker, Sup. Ct, Neb., 19 Am. Law McLaury v. City of McGregor, 54 
 
 Rev. 162, in which it is held that in Iowa, 717; Aurora v. Hillman, 90 
 
 such a case the pavement must be 111. 61. 
 
 kept in as safe a condition as though ' Raymond v. City of Lowell, 6 
 
 there were no excavation. See, also, Cush. 524, supra; Simons v. Gaynor, 
 
 Cahillz'. Layton, 57 Wis. 600; s. C. 89 Ind. 165; Cotterill v. Starkey, 8 
 
 46 Am. Rep. 46; Nave v. Flack, 90 Car. & P. 691; Springett v. Ball, 4 
 
 Ind. 205; s. C. 46 Am. Rep. 205. Fort & Fin. 472. 
 
 ' Clark V. Chambers, 3 L. R. Q. 
 
§ 79'] RULE AS AFFECTING HIGHWAYS. 26 1 
 
 superior or prior rights in the roadway of a street in a 
 city over vehicles.^ It is, therefore, not such an act of 
 negligence as will bar a recovery for one to walk in the 
 roadway, or attempt to cross the highway elsewhere than 
 at a regular crossing. It is the duty of pedestrians and 
 persons in vehicles alike when on the highway to exer- 
 cise ordinary care, and there is, it seems, no peculiar 
 application of the general rules of law in point in this 
 •class of cases.* 
 
 § 79. Deviatixm from the highway. — In actions 
 against municipal corporations, in cases where a traveler 
 has sustained an injury upon the highway because of 
 some defect or obstruction therein, it is a general rule 
 that a deviation from the generally traveled track or 
 path will be such negligence as to prevent a recovery. 
 The corporation is to be held responsible for the condi- 
 tion of the highway, not for that of the adjoining land. 
 When the traveler, therefore, leaves the highway, and 
 thereby sustains an injury, he has no action against the 
 town.* 
 
 But when the traveled part of the highway is 
 obstructed, it may not be negligent to deviate from the 
 joad. It is a proper question for the jury.* So it is held 
 not contributory negligence to turn somewhat out of the 
 wrought part of the road to get better sleighing ; " and so. 
 
 1 Belton V. Baxter, 54 N. Y. 245; Ozier v. Hinesburgh, 44 Vt. 220; 
 
 S. C. 13 Am. Rep. 578; S. C. 58 N. McLaury v. City of McGregor, 54 
 
 Y. 411; Barker v. Savage, 45 Id. Iowa, 717; Drew v. Sutton, 55 Vt. 
 
 191; S. C. 6 Am. Rep. 66; Brooks 586; S. C. 45 Am. Rep. 644. Com- 
 
 V. Schwerin, 54 N. Y. 343. pare Aurora v. Hillman, 90 111. 61. 
 
 * Thomp. on Neg. 387, § 6. * Ramsey v. Rushville, 81 Ind. 394. 
 
 ' City of Scran ton v. Hill, 102 ' Joyner v. Great Barrington, 118 
 
 Penn. St. 378; s. C. 48 Am. Rep. Mass. 463. But, see Rice ». Mont- 
 
 211; Zettler.w. Atlanta, 66 Ga. 195; pelier, 19 Vt. 470; Green v. Danby, 
 
 Larrabee w, Peabody, 128 Mass. 561; 12 Id. 338; Wheeler w. Westport, 30 
 
 Ramsey v. Rushville, 81 Ind. 394; Wis. 392, and Marshall v. Ipswich, 
 
 Xesliew Lewiston, 62 Me. 468; Kel- no Mass. 522. 
 ley V. Fon du Lac, 31 Wis. 179; 
 
262 RULE AS AFFECTING HIGHWAYS. [§ 79. 
 
 when a bridge is impassible, it is not negligent to take a 
 by-road to get across the stream.^ 
 
 It is the duty of the town, or other municipal corpo- 
 ration, at any point in the highway where, for any reason,, 
 there is danger that travelers may be exposed to injury 
 because of high embankments, or because of any other 
 peril of the way, to make and maintain a suitable fence 
 or railing,^ and for any failure so to do, which results in 
 injury to a traveler lawfully pursuing his journey, the 
 corporation is liable. But the traveler, in order ta 
 recover, must have been using the highway not as a con- 
 venience in caring for his stock, but strictly for traveling.. 
 It was accordingly held, in Vermont, that the town was 
 not liable to one whose horse was injured in falling into- 
 a gulf upon the side of the road as he was backing it out 
 of a shed, where it had been left merely for conven- 
 ience.* The corporation is bound to guard against the 
 ordinary dangers of travel in this respect, but not against 
 extraordinary or remote dangers — e. g., a town is not 
 bound to erect barriers merely to prevent travelers from 
 straying from the highway and from falling into a pit 
 that they may reach by straying.* But while an action. 
 
 1 Erie V. Schwingle, 22 Penn. St. 296; s. C. 9 Am. Rep. 568; Man- 
 
 384; and see Briggs v. Guilford, 8 ■ derschid v. City of Dubuque, ifj- 
 
 Vt. 264. Iowa, 73; S. C. 4 Am. Rep. 196; 
 
 * Drew V. Town of Sutton, 55 Vt. Oliver v. Worcester, 102 Mass. 489;; 
 
 586 ; S. C. 45 Am. Rep. 644 ; City of S. C. 3 Am. Rep. 485 ; Niblett v. 
 
 Chicago V. Hesing, 83 111. 204 ; S. C. Nashville, 12 Heisk. 684; S. C. 27 
 
 25 Am. Rep. 378; Hey v. Philadel- Am. Rep. 755. 
 
 phia, 81 Penn. St. 44; S. C. 22 Am. ' Sykes v. Town of Pawlet, 43 Vt. 
 
 Rep. 733; CoUis V. Dorchester, 6 446; s. C. 5 Am. Rep. 295. See, 
 
 Cush. 396; Britton v. Cummington, also, Rice z/. Montpelier, 19 Vt. 470; 
 
 107 Mass. 347; Page v. Bucksport, Vamey w. Manchester, 58N.H. 430; 
 
 64 Me. 51 ; S. C. 18 Am. Rep. 239; s. C. 42 Am. Rep. 592; Bassett v. 
 
 Clapp V. City of Providence, 17 How. City of St. Joseph, 53 Mo. 290; S. C. 
 
 (U. S.) 161 ; Savage v. Bangor, 40 14 Am. Rep. 446. 
 Me. 176; Baldwin v. Greenwood's * Puffer v. Orange, 122 Mass. 389; 
 
 Turnpike Co., 40 Conn. 238 ; s. C. 16 S. C 23 Am. Rep. 368 ; Murphy v. 
 
 Am. Rep. 33 ; Munson v. Town of Gloucester, 105 Mass. 470 ; Warner 
 
 Derby, 37 Conn. 298; s. c. 9 Am. v. Holyoke, 112 Id. 362; Sparhawk. 
 
 Rep. 332; Houfe v. Fulton, 29 Wis. v. Salem, i Allen, 30; Adams v. 
 
§ 79-] RULE AS AFFECTING HIGHWAYS, 263 
 
 in such a case, may not lie against the corporation, the 
 owner of land adjoining a highway is liable if he digs a 
 pit so near the traveled way that one in passing along 
 falls in and is thereby injured. Such pitfalls, unfenced 
 and unguarded, in close proximity to a traveled road or 
 street, are nuisances for which the owner of the land is 
 liable.^ 
 
 This is the law, notwithstanding the general rule that 
 the owner pf land adjoining a highway is not liable for 
 a failure to keep his premises in a safe condition for 
 mere trespassers. It is, indeed, a rule of law that if a 
 person traveling on a highway deviates therefrom and 
 falls into a pit on my land, he shall not hold me respon- 
 sible for his bruises,* but I must not set traps or dig pit- 
 falls upon my land close to the roadside, and leave them 
 unfenced and unguarded for my neighbors to fall into. 
 The mere technical trespass involved in stepping off from 
 the highway and on to the land is not a defense to an 
 action for injuries sustained through such neglect on the 
 part of an owner of land adjacent to the highway.* And, 
 
 Natick, 13 Id. 429; Chapman I/. Cook, » Beck v. Carter, 68 N. Y. 283, 
 
 10 R. I. 304; S. C. 14 Am. Rep. 686; supra; Victory v. Baker, 67 Id. 366; 
 
 Davis V. Hill, 41 N. H. 329; Keys v. Gillespie v. McGowen, 100 Penn. St. 
 
 Village of Marcellas, 50 Mich. 439; 144; S. C. 45 Am. Rep. 365; Severy 
 
 S. C. 45 Am. Rep. 52; Taylor v. v. Nickerson, 120 Mass. 306; S. C. 
 
 Peckham, 8 R. I. 352; S. C. 5 Am. 21 Am. Rep. 514; Indermaur v. 
 
 Rep. 578. Dames, L R. l C. P. 274 : S. C. L. R. 
 
 1 Beck V. Carter, 68 N. Y. 283; s. 2 C. P. 311 ; Sweeny v. Old Colony 
 
 C. 23 Am. Rep. 175 ; Wood on Nui- R. R. Co., 10 Allen, 368 ; Sullivan v. 
 
 sance, §289; Homan «/. Stanley, 66 Waters, 14 Ir. C. L. Rep. 460; 
 
 Penn. St. 464; S. C. 5 Am. Rep. 389; Southcote v. Stanley, i Hurl. & N. 
 
 Sanders v. Reister, i Dakota, 151; 247; Hounsell v. Smyth, 7 C. B. (N. 
 
 Vale w. Bliss, so Barb. 358 ; Haughey S.) 731 ; S. C. 97 Eng. Com. Law, - 
 
 V. Hart, 62 Iowa, 96; S. C. 49 Am. 731 ; Howland v. Vincent, lo Mete. 
 
 Rep. 138; Young v. Harvey, 16 Ind. 371; Harlow v. Humisfon, 6 Cowen, 
 
 314; Addison on Torts, 201 ; Shear. 189; Stafford v. Ingersol, 3 Hill. 38; 
 
 & Redf. on Neg., §§ 505, 506; Du- Wells v. Howell, 19 Johns. 385. 
 
 rant v. Palmer, 39 N. J. Law, 544; Compare Toll Bridge Co. w. Langrell, 
 
 Hadley v. Taylor, L. R. i C. P. 53 ; 47 Conn. 228. 
 
 Barnes v. Ward, 9 C. B. 392; S. C. ' Sanders v. Reister, i Dakota, 
 
 19 L. J. (C. P.) 19s; ^. Corby v. 151; Murray v. McShane, 52 Md. 
 
 Hill, 4 C. B. (N. S.) 556; Hounsell v. 217 ; S. C. 36 Am. Rep. 367. 
 Smyth, 7 Id. 731. 
 
264 RULE AS AFFECTING HIGHWAVS. [§ 79. 
 
 moreover, when a traveler goes from the highway upon 
 adjoining land from necessity, because the highway is 
 temporarily impassable, as from snow drifts, he is not 
 guilty of any trespass whatever, but only does what he 
 has a right to do, if he do no unnecessary damage.^ 
 
 This rule is insisted upon in the English cases. 
 " Highways," said Lord Mansfield, " are for the public 
 service, and, if the usual track is impassable, it is for the 
 general good that people should be entitled to pass in 
 another line." * And in- Comyn's Digest it is said : " A 
 passenger may break the fence and go extra viam as 
 much as is necessary to avoid the bad way." ^ Very few 
 cases are found in the reports in this country upon this 
 point, but there are, among the few adjudications upon 
 the subject, none that contradict the English rule. 
 
 In King v. Thompson,* it is held that an opening in 
 the sidewalk fifteen inches wide and three feet long in 
 front of a cellar window, which was designed for the 
 lighting and ventilation of the cellar, and made in the 
 manner usual in Allegheny City, is not per se a nuisance, 
 and that when the street is lighted, and one, passing by 
 in the night, steps into the opening and is thereby in- 
 jured, the question of his contributory negligence is one 
 proper to go to the jury.® 
 
 But when one, in a blinding snow storm, steps into 
 
 1 Campbell v. Race, 7 Cush. 408; 3 Kent's Com. 424; 3 Cruise's Di- 
 
 S. C. 54 Afti. Dec. 728, and the note; gest, 89; Wellbeloved on Ways, 38; 
 
 Morey v. Fitzgerald, 56 Vt. 487; s. Woolrych on Ways, 50; Angell on 
 
 C. 48 Am. Rep. 8ii ; Holmes v. Highways, § 353; Thomp. on High- 
 
 Seely, 19 Wend. 507; Williams v. ways, §3; 2 Waterman on Trespass, 
 
 Safford, 7 Barb. 309; Newkirk v. § 703. 
 
 Sabler, 9 Id. 652 ; Carey v. Rae, 58 » Taylor v. Whitehead, 2 Doug. 
 
 Cal. 163; Henn's Case, W. Jones, 749. 
 
 296; Pomfret v. Ricroft, i Saund. =* tit. Chem. D. 6. 
 
 323, (note 3) ; Absor v. French, 2 * 87 Penn. St. 365 ; s. C. 30 Am. 
 
 Show, 28 ; Young v. , i Ld. Rep. 364. 
 
 Raym. 725 ; Taylor v. Whitehead, 2 ' Cf. Dillon on Munic. Corp., § 794; 
 
 Doug.. 745; Bullard v. Harrison, 4 Stewart v. Alcorn, 2 Weelc. Notes 
 
 Mau. & Sel. 387; 2 Black. Com. 36; Cas. (Penn.) 401. 
 
§ 8o.] RULE AS AFFECTING HIGHWAYS. 265 
 
 a hole in the pavement, for which he has no reason to be 
 on the lookout, it is not contributory negligence and he 
 may recover from the town,^ and when the plaintiff fell 
 into a hole in the sidewalk badly covered up, or so cov- 
 ered as to mislead one coming upon it, it was held that 
 he might have his action against the owner of the adjoin- 
 ing property, whose duty it was to keep the sidewalk, as 
 to this opening, reasonably safe for travelers.^ But, 
 where one maintains a hatchway in a pavement, in a 
 public street unsafe for travelers, and a stranger takes the 
 cover off, and one, being injured thereby, recovers dam- 
 ages from the occupant of the property, the latter cannot 
 recover indemnity from the intermeddler, upon the prin- 
 ciple in pari delicto, etc} In Indiana, moreover, where one 
 attempts in the night time to pass an open cellarway in 
 the sidewalk, of which he knew, but which, for the mo- 
 ment, he had forgotten, he is held guilty of contributory 
 negligence sufficient to bar a recovery for injuries sus- 
 tained by falling into the cellar* 
 
 § 80. Trespass upon the highway. — The use of the 
 highway for games or sports, dangerous to travelers, is a 
 trespass, and renders the parties guilty of it liable for all 
 damages occasioned thereby. " The highway is established 
 for the convenience of travelers, and the use of it for any 
 game or sport, that actually exposes or puts to hazard the 
 personal safety of the traveler thereon, is not justifiable, 
 and subjects the party thus using the road improperly to 
 the payment of all damages occasioned thereby to the 
 
 ' Auroras. Dale, 90 111. 46. 114 Mass. 149; S. C. 19 Am. Rep. 
 
 2 Hutchison v. Collins, 90 111. 410; 344. 
 
 Calder v. Smalley, Sup. Ct., Iowa, N. * Bruker v. Town of Covington, 69 
 
 W. R., June 13, 1885; S. C. xix Ind. 33 ; S. C. 35 Am. Rep. 202; cf. 
 
 Am. Law Rev. 664. President, &c., of Mt. Vernon v. Du- 
 
 ' Churchill v. Holt, 131 Mass. 67; souchett, 2 Ind. 586; s. C. 54 Am. 
 
 S. C. 41 Am. Rep. 191 ; but see, also, Dec. 467, and the note ; and Dillon on 
 
 S. C. 127 Mass. 165 ; s. C. 34 Am. Munic. Corp., § 789. 
 Rep. 355, and Gray v. Gaslight Co., 
 
266 RULE AS AFFECTING HIGHWAYS. [§ 8o. 
 
 traveler," ^ And so, where one using the highway not as 
 a traveler," but for purposes of play or sport, receives an 
 injury from a defect in the highway, it is contributory 
 negligence, and no action will lie against the corporation 
 whose duty it is to keep the highway in repair.^ But, 
 in another line of cases, it appears that mere collateral 
 violations of law upon the highway, not contributing to 
 the injury, will not always bar a recovery; as, where two 
 persons were speeding their horses upon the highway, in 
 violation of a rule as to fast driving, and one purposely 
 ran into the other and injured his sleigh, it was held that 
 the injured party might have his action, in spite of the 
 collateral violation of law on his part* So, also, where 
 the action was against the city, and the plaintiflF, having 
 driven through the streets at a rate of speed forbidden by 
 a municipal ordinance, was injured by a defect in the 
 street, it appearing that the rate of speed did not con- 
 tribute to the injury, such illegal driving did not prevent 
 a recovery.* And where one placed his team in the street 
 in a manner forbidden by a municipal ordinance, and was 
 run into and injured by the negligence of the defendant, 
 it was held that he might recover, the position of the 
 plaintiff's team not appearing to have contributed to the 
 collision.^ The maintenance of a fruit stand, a perraa- 
 
 ^ Vosburgh v. Moak, i Cush. 453 ; of one who stopped his horses by the 
 
 S. C. 48 Am. Dec. 613. way to pick some berries, and the 
 
 ^ The obligation of the municipality horses, becoming frightened, backed 
 
 to keep the highways in repair is en- down a steep bank negligently left un- 
 
 forceable only in favor of bona fide fenced, see Britton v. Cunningham, 
 
 travelers. Richards v. Enfield, 13 107 Mass. 347; and cf. Babson v. 
 
 Gray, 344. See, also, 2 Dillon on Rockport, loi Id. 93; Gregory v. 
 
 Munic. Corp., | 786. Adams, 14 Gray, 242. 
 
 ' McCarthy v. Portland, 67 Me. 167 ; * Welch v. Wesson, 6 Gray, 505. 
 
 S. C. 24 Am. Rep. 23; Blodgett v. Compare Schultz v. Milwaukee, 49 
 
 Boston, 8 Allen, 237; Harper 7/. Mil- Wis. 254; s. C. 35 Am. Rep. 779 
 
 waukee, 30 Wis. 365; Higginson v. and note, and see § 16, supra. 
 Nahant, 11 Allen, 53°- See, also, » Baker v. Portland, 58 Me. 199; 
 
 Stickney v. Salem, 3 Allen, 374; Stin- S. C. 4 Am. Rep. 274; cf. Heland v. 
 
 son V. Gardner, 42 Me. 248 ; Sykes v. Lowell, 3 Allen, 407. 
 Pawlet, 43 Vt. 446; S. c. 5 Am. Rep. « Steele w. Burkhardt, 104 Mass. 59; 
 
 295; and, for a contrary rule, in favor S. C. 6 Am. Rep. 191 ; but see, also, 
 
§ 8o.] RULE AS AFFECTING HIGHWAYS. 267 
 
 nent structure, upon the sidewalk in the street of a city, 
 so constructed as to encroach upon the highway, is a 
 nuisance, and that, without reference to whether it essen- 
 tially interferes with the comfortable enjoyment of the 
 sidewalk by travelers or not.^ 
 
 Upon the question whether or not it is negligent to 
 leave horses untied and unattended in the public high- 
 way, there is not entire unanimity in the decisions. In 
 Norris v. Kojiler,^ on the one hand, it is said : " Leaving 
 the horses unfastened in a public street is undoubted 
 negligence, and so it has been often held," which is the 
 rule declared in several other cases ; * whereas, in Wasmer 
 V. Delaware, &c., R. R. Co.,* on the other hand, it is said : 
 " There is no absolute rule of law that requires one who 
 has a horse in the street to tie him, or to hold him by the 
 reins. It would, doubtless, be careless to leave a horse in 
 a street wholly unattended, without tying him to some- 
 thing. But it is common for persons doing business in 
 streets with horses to leave them standing in their imme- 
 diate presence, while they attend to the business, and it 
 is not unlawful for them to do so. It is commonly safe 
 so to do, and accidents are rarely occasioned thereby," 
 and in that case it was held that it was not contributory 
 negligence for one peddling kindling wood to leave his 
 horse untied, and go a short distance away from the wagon 
 to solicit a customer, although the horse being frightened 
 by an approaching railway train, ran upon the track, and 
 
 Le Baron v. Joslin, 41 Mich. 313; Hilt. 38; Buckingham v. Fisher, 70 
 
 State ». Edens, 85 N. C. 522; Turner 111. 121; Loeser v. Humphrey (Sup. 
 
 V. Holtzman, 54 Md. 148; S. <;. 39 Ct., Ohio), 32 Albany Law Jour. 56, 
 
 Am. Rep. 361. July 18, 1885 ; Gray v. Second Avenue- 
 
 > State z/. Berdetta, 73 Ind. 185; s. R. R. Co., 65 N. Y. 561. Compare 
 
 C. 38 Am. Rep. 117, an interesting Southworth 7/. Old Colony, &c., R. R. 
 
 and learned opinion. See, also, the Co., 105 Mass. 342 ; s. C. 7 Am. Rep. 
 
 annotation in the re-report. 528; Davis v. Dudley, 4 Allen, 557. 
 
 » 41 N. Y. 42. * 80 N. Y. 212; S. C. 36 Am. Rep. 
 
 ' Deville v. Southern Pacific R. R. 608. 
 Co., 50 Cal. 383; Morris v. Phelps, 2 
 
268 
 
 RULE AS AFFECTING HIGHWAYS. 
 
 [§8o. 
 
 the owner going after it in pursuit, was run over and killed, 
 and this, although there was also a city ordinance for- 
 bidding any man to leave his horse in the street unless 
 securely tied.^ 
 
 A horse unlawfully at large upon a highway is a nui- 
 sance, and its owner is liable for any damage done by it, 
 whether the horse is vicious or not.* But where a horse 
 escapes from a proper enclosure without fault on the part 
 of the owner, and does damage, it seems that the owner 
 is not liable? When the plaintiff's horse is frightened 
 by some unusual object, likely to frighten horses, upon 
 the highway for which the defendant is legally respon- 
 sible, and the horse, being so terrified, does damage, runs 
 away, or causes other injury to the plaintiff, the defend- 
 ant is liable.* But what a city has licensed, for a con- 
 sideration, cannot be treated as a nuisance, and accordingly 
 there is no action against the city for damages sustained 
 
 * See, also, Southworth v. Old Col- 
 ony, &c., R. R. Co., los Mass. 342, 
 supra ; Titcomb v. Fitchburg R. R. 
 Co., 12 Allen, 254; Alberts. Bleecker, 
 St. R. R. Co., 2 Daly, 389; Griggs v. 
 Fleckenstein, 14 Minn. 81 ; Streett v. 
 Laumier, 34 Mo. 469. 
 
 2 Baldwin v. Ensigti, 49 Conn. 113; 
 S. C. 44 Am. Rep. 205 ; Decker v. 
 Gammon, 44 Me, 322 ; Barnes v. Cha- 
 pin, 4 Allen, 444 ; Lyons v. Merrick, 
 105 Mass. 76; Dickson v. McCoy, 39 
 N. Y. 400; Goodman v. Gay, 15 
 Penn. St. 188; Fallon v. O'Brien, 12 
 R. I. 518; s. C. 34 Am. Rep. 713; 
 Lee V. Riley, 18 C. B. (N. S.) 722; 
 Moak's Underbill's Torts, 296, 297, 
 citing Southall v. Jones, 5 Vict.L. R. 
 402. 
 
 8 Con V. Burbridge, 13 C. B. (N. S.) 
 430; Fallon V. O'Brien, 12 R. L 518, 
 supra. Compare Holden v. Shattuck, 
 34 Vt. 336. 
 
 * Bennett v. Lovell, 12 R. L 166; 
 S. c. 34 Am. Rep. 628, and note ; For- 
 shay V. Glen Haven, 25 Wis. 288 ; s. 
 C. 3 Am. Rep. 73 ; Ayer v. City of 
 
 Norwich, 39 Conn. 376; s. C. 12 Am. 
 Rep. 396 ; Winship v. Enfield, 42 
 N. H. 199; Bartlett v. Hooksett, 48 
 Id. 18; Chamberlain w. Enfield, 43 Id. 
 358; Knight I/. Goodyear Rubber Co., 
 38 Conn. 438 ; S. C. 9 Am. Rep. 406; 
 Ring V. City of Cohoes, 77 N. Y. 83 ; 
 s. c. 33 Am. Rep. 574; Brooksville 
 V. Pumphrey, 59 Ind. 78'; S. C. 26 Am. 
 Rep. 76 ; but see, contra., Keith v, 
 Easton, 2 Allen, 522; Kingsbury v. 
 Dedham, 13 Id. 186; Macomber v. 
 Nichols (Cooley, C. J.), 34 Mich. 212; 
 S. C. 22 Am. Rep. 522 ; Favor v. Bos- 
 ton, &c., R. R. Co.. 114 Mass. 350; 
 S. c. 19 Am. Rep. 364; Rivers v. City 
 Council of Augusta, 65 Ga. 376; S. C. 
 38 Am. Rep. 787; Little v. City of 
 Madison, 42 Wis. 643; S. C. 24 Am. 
 Rep. 435 ; Cole v. City of Newbury- 
 port, 129 Mass. 594, and compare, 
 Harris v. Mobbs, 3 L. R. Exch. Div. 
 268 ; Watkins v. Reddin, 2 Fost. & 
 Fin. 629; Smith v. Stokes, 4 Best & 
 S. 84; Hill V. Board of Alderman of 
 Charlotte, 72 N. C. 55; S. C. 21 Am. 
 Rep. 451. 
 
§ 8o.] RULE AS AFFECTING HIGHWAYS. 269 
 
 by reason of one's horse becoming frightened at an exhi- 
 bition of wild animals lawfully upon the highway ; ^ nor 
 when the plaintiff's house was set on fire and burned up by 
 licensed fireworks upon a holiday ; ^ nor when the plaint- 
 iff was gored by a cow lawfully at large upon the street 
 of a city,* A defective vehicle or harness, if the defect • 
 is known to the plaintiff, is a defense to an action for . 
 damages for an injury from a defective highway. It is 
 contributory negligence to go upon the highway with 
 such a conveyance.* "The plaintiff," said Shepley, C. J., 
 " must show that th.e accident occurred wholly by the 
 defect of the road, and without any fault on his part." * 
 But if the defect in the conveyance is unknown to the 
 plaintiff, it is not as a rule a defense to his action.* Un- 
 skillful or reckless driving is also such negligence on the 
 part of a plaintiff as will prevent a recovery in case it 
 contributes to produce the injury ; ^ but, in case it does not 
 appear to have contributed to occasion the mischief, the 
 plaintiff may, nevertheless, recover.* So it is held that 
 permitting a woman to drive a horse upon a highway is 
 not conclusive upon the question of the plaintiff's want 
 
 1 Colew. City of Newburyport, 129 see, contra^ Anderson w. Bath, 42 Me. 
 
 Mass. 594, supra; Little v. City of 346; Perkins v. Fayette, 68 Id. 152; 
 
 Madison, 49 Wis. 605, supra. Davis v. Dudley, 4 Allen, 557 ; Titus 
 
 8 Hill V. Board of Aldermen of z/. Northbridge, 97 Mass. 258; Houfe 
 
 Charlotte. 72 N. C. 55 ; Tindley v. City v. Fulton, 29 Wis. 296 ; Hawes v. Fox 
 
 of Salem,' 137 Mass. 171. Lake, 33 Wis. 438. See, also, Thomp. 
 
 » Rivers «/. City Council of Augusta, on Neg. 1085, §3; Shear. & Redf. 
 
 65 Ga. 376. on Neg., § 416. 
 
 * Jenks V. Wilbraham, 11 Gray, ' Flower w. Adams, 2 Taunt, 314; 
 
 142; Allen V. Hancock, 16 Vt. 230; Pittsburgh, &c., R. R. Co. v. Taylor, 
 
 Farrar v. Greene, 32 Me. 574; Moore 104 Penn. St. 306; S. C. 49 Am. Rep. 
 
 V. Abbott, 32 Id. 46 ; Springett v. 580 ; Peoria Bridge Association v. 
 
 Ball, 4 Fost. & Fin. 472 ; Thomp. on Loomis, 20 111. 235 ; Acker v. County 
 
 Neg. 1208, § 55. of Anderson, 20 S. C. 495 ; Cassidy 
 
 ' Farrar v. Greene, supra, and see, v. Stockbridge, 2i Vt. 391. 
 
 Cotterill V. Starkey, 8 Car. & P. 691. « Alger v. Lowell, 3 Allen, 402; 
 
 » Palmer J/. Andover, 2 Cush. 600; Heland v. Id., 3 Id. 407; Stuart v. 
 
 Hodge V. Bennington, 43 Vt. 450 ; Machias Port, 48 Me. 477 : Welch v. 
 
 Tucker .7/. Henniker, 41 N. H. 317; Wesson, 6 Gray, 505; Bakers/. Port- 
 
 Winship v. Enfield, 42 Id. 197; Tut- land, 58 Me. 199 ; S. C. 4 Am. Rep. 
 
 tlez'. Farmington, 58 Id. 126. But 274, and see § 16, j«/r«. 
 
270 RULE AS AFFECTING HIGHWAYS. [§ 8 1. 
 
 of care.^ The law inclines to require the same degree of 
 care of a woman as of a man ; * but it is said that a wo- 
 man driving a horse upon a highway may be presumed 
 to be somewhat wanting in the amount of knowledge, 
 skill, dexterity, steadiness of nerve, and coolness of judg- 
 ment — in short, that reasonable degree of competency 
 which we may presume in a man, and that a person meet- 
 ing her under circumstances threatening collision should 
 govern his own conduct with some regard to her probable 
 deficiencies.® 
 
 §81. Sunday traveling. — "Digs dominicus non est 
 juridicus" but with this qualification Sunday, at com- 
 mon law, differed from no other day in the week. Courts 
 might not lawfully sit upon that day ; service of process 
 and arrest in civil causes were prohibited, and no judicial 
 act could be -done,* but business transactions of every 
 kind upon that day were valid.* Lord Mansfield says 
 that Sunday is a dies non juridicus, not made so by stat- 
 ute but by a canon of the church incorporated into the 
 common law.* Prior to the year a. d. 51 7, however, the 
 Christians used all days alike for the hearing of causes, 
 not sparing Sunday itself. This they did for two rea- 
 sons ; first, to rebuke the heathen superstition as to lucky 
 
 1 Cobb V. Standish, 14 Me. 198; True v. Plumley, 36 Me. 466; Swan 
 
 Bigeloww. Rutland, 4 Ctish. 247; Bab- v. Broome, 3 Burr, 1597; S. C. 2 Bl. 
 
 son w. Rockport, loi Mass. 93; Blood 526; l Wm. Bl. 526; MacKalley's 
 
 •V. Tyngsboro, 103 Id. 509. Case, 9 Co. 66 ; S. C. Cro. Jac. 279, 
 
 ^ Hassenger v. Michigan, &c., R. and compare Isaacs v Beth Hame- 
 
 R. Co., 48 Mich. 205 ; s. C. 42 Am. dash Society, 1 Hilt. 469; Van Riper 
 
 Rep. 470, an instructive opinion of w. Van Riper, i Southard (N. J.), 156; 
 
 Mr. Justice Cooley; Fox v. Glasten- S C. 7 Am. Dec. 576 ; Proffatt on Jury 
 
 bury, 29 Conn. 204; Snow 7/. Province- Trial, § 455; Browne's Humorous 
 
 town, 120 Mass. 580. Phases of the Law, 14. 
 
 ' Daniels v. Clegg, 28 Mich. 33 ; " Comyns v. Boyer, Cro. Eliz. 405 ; 
 
 cf. City of Blooming^on v. Perdue, 99 Rex v. Brotherton, Stra. 702 ; Prin- 
 
 111. 329. sor's Case, Cro. Car. 602; Waite v. 
 
 * See, upon this point, in general. Hundred of Stoke, Cro. Jac. 496. See, 
 
 Hiller W.English, 4 Strobh.(Law),486; also, City Council v. Benjamin, 2 
 
 Story V. Elliot, 8 Cowen, 27; s. C. 18 Strobh. 508; s. C. 49 Am. Dec. 608, 
 
 Am. Dec. 423 ; Coleman v. Render- and the note, 
 son, Littell's Select Cases (Kentucky), ' Swan v. Broome, supra. 
 171 ; S. C. 12 Am. Dec. 290, and note; 
 
§ 8l.] RULE AS AFFECTING HIGHWAYS. 2/1 
 
 and unlucky days, and second^ that, by keeping their own 
 courts always open, they prevented Christian suitors 
 from resorting to the heathen tribunals.^ 
 
 "But, in the year 517, a ca,non was made: '■Quod 
 nulltis episcopus vel infra positus die dominico causas 
 judicare pressumat y and this canon was ratified in the 
 time of Theodosius, who fortified it with an imperial 
 constitution : ' Solis die [jguem dominicum recte dixere 
 majores\ omnium omnio litium et negotiorum quiescat 
 intentio' Ofher canons were made, in which vacations 
 were appointed. These, and other canons and constitu- 
 tions, were received and adopted by the Saxon kings of 
 England. They were all confirmed by William the Con- 
 queror, and Henry II., and so become part of the com- 
 mon law of England."* By statute 29, Car. 11.,^ which 
 has been copied, in most of the States of the Union, it 
 is provided, inter alia, that : " No tradesman, artificer, 
 workman, labourer or other person whatsoever, shall do 
 or exercise any worldly labour, business or work, of their 
 ordinary calling upon the Lord's day, or any part 
 thereof, work of necessity and charity only excepted." 
 The adjudications in the several States, and in England, 
 under these statutes are very numerous,* but with them, 
 for the purposes of this treatise, we are not concerned, 
 except so far as in the New England States it has been 
 held that the wrong-doing involved in traveling upon the 
 Lord's day, whenever it is not a work of "necessity or 
 charity," is a defense to actions brought by travelers for 
 
 1 Sir Henry Spelman, quoted by 14-47- See, also, Myers v. Meinrath, 
 
 Lord Mansfield in Swan v. Broome, loi Mass. 366 ; s. C. 3 Am. Rep. 368, 
 
 supra. and note; Allen v. Duffie, 43 Mich. 
 
 » Story V. Elliot, 8 Cowen, 27; S. i ; S. C. 38 Am. Rep. 159, and note; 
 
 C. 18 Am. Dec. 423, a very interest- State v. Larry, 7 Baxt. 95; s. C. 32 
 
 ing opinion, in which the learning Am. Rep. 555, and note; Robeson 7/. 
 
 upon this point is fully set out. French, 12 Mete. 24; S. C. 45 Am. 
 
 3 Chap. 7, § I. Dec. 236; Coleman v. Henderson, 
 
 * Many cases are collected in Littell's Select Cases (Kentucky), 171 ; 
 
 Browne's "Humorous Phases," &c., S. C 12 Am. Dec. 290, and the note. 
 
272 RULE AS AFFECTING HIGHWAYS. [§ 8 1. 
 
 injuries from defective highways, collisions or any other 
 misadventure upon such Sunday journey. 
 
 This anomalous and erratic doctrine was first an- 
 nounced by Chief Justice Shaw, of Massachusetts, in the 
 case of Bosworth v. Inhabitants of Swansey,^ It was 
 an action brought by a person injured, while traveling 
 upon Sunday, by a defect in a highway, and it was held, 
 as an application of the local statute, which provides that 
 " no person shall travel on the Lord's day, except from 
 necessity or charity," and that " every person so offend- 
 ing shall be punished by a fine not exceeding ten dollars 
 for every offense," that the traveler, in order to main- 
 tain his action, must show that he was traveling from 
 necessity or charity, and that a failure so to do would 
 prevent any recovery. In many subsequent cases this 
 rule has been applied by the Massachusetts courts — and 
 it is settled law in that State that, when one travels on a 
 Sunday, except upon an errand of " necessity or charity," 
 he can maintain no action for any injury that he may 
 sustain by reason of a defect in the highway, or from 
 collision, or railway accident, or other misadventure. In 
 effect, such a traveler, in Massachusetts, takes his life in 
 his hand, and goes forth at his own proper peril. 
 
 It is held, for example, not to be a traveling from 
 necessity or charity to go, on Sunday, to see whether a 
 house, into which you propose to move on Monday, has 
 been properly cleaned and put in order ; * nor to walk 
 along the streets of Boston to see your employer for the 
 purpose of getting him to change your hours of labor on 
 week days ; ^ nor to ride in the street cars from one city 
 to another to call upon a stranger ; * nor to travel about 
 
 > 10 Mete, 363; S. C. 43 Am. Dec. " Connolly v. Boston, 117 Id. 64. 
 
 441. * Stanton v. Metropolitan R. R. 
 
 2 Smith V. Boston, &c., R. R. Co., Co., 14 Allen, 485. 
 1 20 Mass. 492. 
 
§ 8 1.] RULE AS AFFECTING HIGHWAYS. 273 
 
 for the purpose of furnishing fresh meat to marketmen •/ 
 nor for the purpose of selling pigs ; * nor to go to see 
 your friend, on the way home from a funeral (when you 
 venture out on Sunday to a funeral you must go straight 
 there and straight back) ;* nor for a traveling insurance 
 agent, whose sick sister had written to him to meet her 
 and carry her home, to go on Sunday by rail to a point 
 at which he expected to receive another letter from that 
 sister as to their proposed journey home together ;* nor to 
 perform the ordinary duties of a street car conductor." In 
 each of these cases the plaintiff found himself remediless. 
 So, also, where the plaintiff had merely tied his horse by 
 the roadside and another drove against it he could not re- 
 cover, inasmuch as, although the plaintiff was attending 
 a camp meeting, it did nbt clearly appear that he at- 
 tended from religious motives ; * and if one lets a horse 
 for a Sunday drive and the horse is injured, by the neg- 
 lect of the person who hires it, the owner cannot re- 
 cover.^ 
 
 On the contrary, the Massachusetts courts have held 
 it a journey made from " necessity or charity," within the 
 contemplation of the statute, for one to drive his horse 
 upon the highway on Sunday morning to get a maid- 
 servant, in order that she might prepare necessary food for 
 
 1 Jones V. Andover, 10 Id. 18. Corcoran, 107 Mass. 251 ; S. C. 9 Am. 
 
 2 Bradley v. Rea, 103 Mass. 188; Rep. 30, in which it was held, when 
 S. C. 4 Am. Rep. 524. ., the owner of a horse let it, on the 
 
 'Davis V. Somerville, 128 Mass. Lord's day, to be driven for pleasure 
 
 594; S. C. 35 Am. Rep. 399. to a particular place, and the hirer 
 
 * Bucher v. Fitchburg R. R. Co., drove it to a different place and in do- 
 
 131 Mass. 156; S. C. 41 Am. Rep. ing so injured it, that, although the 
 
 216. contract of hiring was illegal and void, 
 
 5 Day w. Highland Street R. R. Co., the owner might, nevertheless, main- 
 
 13s Mass. 113; S. C. 46 Am. Rep. tain tort for the conversion of the 
 
 447. horse. In the opinion, Mr. Justice 
 
 « Lyons v. Desotelle, 124 Mass. Gray reconsiders at length the ques- 
 
 387, tion presented in Gregg v. Wyman, 
 
 ' Gregg V. Wyman, 4 Cush. 322, which was overruled by a unanimous 
 
 but the court has receded from this court. Compare Nodine v. Doherty, 
 
 position in the later case of Hall v. 46 Barb. 59. 
 
 18 
 
2 74 RULE AS AFFECTING HIGHWAYS. [§ 8l. 
 
 the family during the day/ or for one to take a walk mere- 
 ly for exercise, and to get the air.* And when one trav- 
 els from one town to another to visit a sick friend whom 
 he thinks may need his assistance,' or goes on Sunday to 
 a camp meeting of spiritualists,* he is entitled to go to 
 the jury on the question, whether he was traveling law- 
 fully or not. It is also lawful, under the statute, to travel 
 on Sunday for the purpose of visiting a sick child, or 
 other near relative.* And where the defendant's dog 
 frightened the plaintiff's horse so that it ran away and 
 broke his buggy, the plaintiff was allowed his action, 
 although he was riding at the time unlawfully upon the 
 Sabbath day.* In this case it is said that the plaintiff's un- 
 lawful traveling on the Lord's day will not defeat his right 
 to recover, unless his unlawful act was a contributory 
 cause of the injury he sustains.'' But this, in my opinion, 
 is not the law in Massachusetts upon this point, and 
 even if it were, it hardly helps things much, since in Hall 
 V. Corcoran,® it is expressly declared that in these cases 
 the illegal Sunday traveling " necessarily contributes" to 
 the injury — from which the inference is that there is no 
 escape.' 
 
 The Massachusetts doctrine upon this point obtains, 
 
 1 Crosman v. City of Lynn, 121 » 107 Mass. 251; S. C. 9 Am. Rep. 
 Mass. 301. 30. 
 
 2 Hamilton v. City of Boston, 14 » See, also, as indicating the atti- 
 Allen, 475. tude of this court upon this general 
 
 = Doyle V. Lynn, &c., R. R. Co., question. McGrath v. Merwin, 112 
 
 118 Mass. 195; S. C. 19 Am. Rep. Mass. 467; S. C. 17 Am. Rep. 119; 
 
 431- Wallace v. Merrimack, &c., Co., 134 
 
 * Feital v. Middlesex R. R. Co., Mass. 95; s. C. 45 Am. Rep. 30J, 
 
 109 Mass. 398; s. C. 12 Am. Rep. wherein the genfeial Massachusetts 
 
 720. rule is applied to one who, in sailing 
 
 5 Pearce v. Atwood, 13 Mass. 324, his yacht on Sunday, was negligently 
 
 350 ; 'Gorman d. Lowell, 1 17 Id. 65. injured in.a collision. Compare Myers 
 
 « White V. Lang, 128 Mass. 598; v. Meinrath, loi Mass. 366; S. C. 3 
 S. C. 35 Am. Rep. 402. Compare on Am. Rep. 368; Cox v. Cook, 14 
 this point Schmid v. Humphrey, 48 Allen, 165: Commonwealth z/. Samp- 
 Iowa, 652 ; s. C. 30 Am. Rep. 414. son, 97 Mass. 407. 
 
 ' White V. Lang, supra, by Mor- 
 ton, J. 
 
§ 8 1.] RULE AS AFFECTING HIGHWAYS. 275 
 
 in Maine, where one who travels on Sunday to visit a 
 friend, in violation of the statute, cannot maintain an 
 action against the town for injuries from a defective high- 
 way.^ But if a woman walks only about a mile in a town, 
 for exercise on Sunday, she is held not a traveler in such 
 a sense as to bar her recovery against the town for in- 
 juries suffered during such a walk from a defect in the 
 street,^ and when a man walking on the Lord's day for 
 exercise went into a beer shop and drank a glass of beer, 
 and on resuming his walk was injured by a defect in the 
 highway, it was held that he might recover.* But if one 
 lets his horse for a pleasure drive on Sunday, and the 
 horse is injured by the hirer's neglect the owner is remedi- 
 less.* 
 
 Vermont is the only other State in the Union where 
 this theory prevails. In that State the Massachusetts 
 rule upon this subject is followed, and there is no recovery 
 for injuries received from a defect in the highway by one 
 who is traveling on Sunday in violation of the statute.^ 
 But where the plaintiff traveled eight miles on Sunday, 
 from one town to another, to visit his two little sons from 
 whom he was separated during the week, and whose 
 mother was dead, and was injured by a defect in the 
 highway, it was held that a recovery would not be de- 
 feated by the Vermont statute, which prohibits travel on 
 
 » Cratty v. Bangor, 57 Me. 423 ; 378 ; Peplow v. Richardson, 4 L. R. 
 
 S. c. 2 Am. Rep. 56. See, also, Hinck- (C. P.) 168. 
 
 ley w. Penobscot, 42 Me. 81; Tillock * Parker v. Latner, 60 Me. 528; S. 
 
 ■V. Webb, 56 Id. 100. c. 11 Am. Rep. 210. But see, Mor- 
 
 2 O'Connell v. City of Lewistown, ton v. Gloster, 46 Me. 520, and com- 
 
 65 Me. 34: S. C. 20 Am. Rep. 673. pare Hall v. Corcoran, 107 Mass. 251 ; 
 
 Compare Hamilton v. Boston, 14 Allen s. C. 9 Am. Rep. 30 ; Stewart v. Davis, 
 
 475. . 31 Ark. 518; s. C. 25 Am. Rep. 576; 
 
 * Davidson v. City of Portland. 69 Nodinev. Doherty, 46 Barb. 59; Frost 
 
 Me. 116; S. C. 31 Am. Rep. 253. See, v. Plumb, 40 Conn, in; s. C. 16 Am. 
 
 also, Atkinson v. Sellers, 5 C. B. (N. Rep. 18; Smith v. Rollins, ii R. I. 
 
 S.) 442; Taylor w. Humphreys, 10 Id. 464; s. C. 23 Am. Rep. 509. 
 
 429; Reginaz/.Rymer, 13 Cox's C. C. 'Johnson v. Town of Irasburgh, 
 
 47 Vt. 28; s. c. 19 Am. Rep. in. 
 
276 RULE AS AFFECTING HIGHWAYS. [§ 81. 
 
 Sunday except for attendance at places of moral instruc- 
 tion and from necessity.^ 
 
 In Baldwin v. Barney,^ it was held by the Supreme 
 Court of Rhode Island, that where one driving carefully 
 on Sunday on a highway in the State of Massachusetts 
 was negligently run into and injured, he could maintain 
 an action in Rhode Island against the person who injured 
 him, without showing that he was traveling at the time 
 of the injury upon an errand either of necessity or char- 
 ity.* In the opinion in this case, Chief Justice Durfee, 
 explicitly repudiates the Massachusetts doctrine, which 
 has found no favor outside of the three States in New 
 England that have been long committed to it. It is gen- 
 erally denied throughout the Union in both State and 
 Federal Courts.* 
 
 The objections to such a rule suggest themselves, but 
 Chief Justice Dixon, in Sutton v. Town of Wauwatosa,* 
 has drawn the indictment in a very quotable fashion as 
 follows : " The cases may be summed up, and the result 
 stated generally to be the affirmance of two very just and 
 
 1 McClary v. Lowell, 44 Vt. 116; legislation and customs of the State, 
 
 S. C. 8 Am. Rep. 366. Note that in more than on any general principles 
 
 Pennsylvania it is a work of necessity of law or justice?'' Carroll v. Staten 
 
 or charity for a child to visit his father Island R. R. Co., 58 N. Y. 126; Platz 
 
 on Sunday, and to make a journey in v. City of Cohoes, 89 Id. 219; S. C. 
 
 a wagon so to do. Logan z/. Matthews, 42 Am. Rep. 286; Commonwealth w. 
 
 6 Penn. St. 417, but in Massachusetts Louisville, &c., R. R. Co., 80 Ky. 
 
 it is in doubt, whether a young fellow 291 ; S. C. 44 Am. Rep. 475 ; Phila., 
 
 may lawfully travel on a Lord's day to &c. , R. R. Co. v. Lehman, 56 Md. 
 
 visit his sweetheart. Buffington v. 209; s. C.40 Am. Rep.415; Yonoski». 
 
 Swansey. 2 Am. Law Rev. 235, cited State, 79 Ind. 393 ; S. C. 41 Am. Rep. 
 
 in Browne's "Humorous Phases," 614; Loeb w. City of Attica, 82 Ind. 
 
 17. I75;S.C.42 Am. Rep. 494 ; Wilkinson 
 
 * 12 R. I. 392; s. C. 34 Am. Rep. v. State, 59 Ind. 416 ; S. C 26 Am. 
 670. Rep. 84. [Compare with this case, 
 
 ' This is a good case for people in Whitcomb v. Oilman, 35 Vt. 297] \ 
 
 Massachusetts to make a note of, if Sutton v. Town of Wauwatosa, 29 
 
 they are given to taking drives on Sun- Wis. 21 ; S. C. 9 Am. Rep. 534 ; Moh- 
 
 day. ney v. Cook, 26 Penn. St. 342 ; Bald- 
 
 * Philadelphia, &c., R. R. Co. v. win v. Barney, \a R. I. 392; S. C. 34 
 Philadelphia, &c., Towboat Co., 23 Am. Rep. 670 ; Cooley on Torts, 
 How.(U.S.) 209, wherein it is said that §157, and see, also, § 61 , supra, 
 ''the Massachusetts decisions upon ^ Supra. 
 
 the Sunday law depend on the peculiar 
 
§ 8 1.] RULE AS AFFECTING HIGHWAYS. 277 
 
 plain principles of law as applicable to civil actions of this 
 nature, namely : First, that one party to the action, when 
 called upon to answer for the consequences of his own 
 wrongful act done to the other, cannot allege or reply the 
 separate or distinct wrongful act of the other, done not 
 to himself nor to his injury, and not necessarily con- 
 nected with, or leading to, or causing, or producing the 
 wrongful act complained of ; and, secondly, that the fault, 
 want of due care, or negligence on the part of the plaint- 
 iff which will preclude a recovery for the injury complained 
 of, as contributing to it, must be some act or conduct of 
 the plaintiff having the relation to that injury of a cause 
 to the effect produced by it. Under the operation of 
 the first principle, the defendant cannot exonerate him- 
 self, or claim immunity from the consequences of his own 
 tortious act, voluntarily or negligently done to the injury 
 of the plaintiff, on the ground that the plaintiff has been 
 guilty of some other, and independent wrong or violation 
 of law. Wrongs or offenses cannot be set off against 
 each other in this way. ' But we should work a confu- 
 sion of relations, and lend a very doubtful assistance to 
 morality,' say the court in Mohney v. Cook, ' if we should 
 allow one offender against the law, to the injury of an- 
 other, to set off against the plaintiff that he, too, is a pub- 
 lic offender.' Himself guilty of a wrong not dependent 
 on, nor caused by that charged against the plaintiff, but 
 arising from his own voluntary act, or his neglect, the de- 
 fendant cannot assume the championship of public rights, 
 nor to prosecute the plaintiff as an offender against the 
 laws of the State, and thus to impose upon him a pen- 
 alty many times greater than what those laws prescribe. 
 Neither justice nor sound morals require this, and it seems 
 contrary to the dictates of both, that such a defense should 
 be allowed to prevail. It would extend the maxim ex 
 iurpe causa non oritur actio beyond the scope of its legit- 
 
278 RULE AS AFFECTING HIGHWAYS. [§ 82. 
 
 imate application, and violate the maxim equally binding 
 and wholesome, and more extensive in its operation, that 
 no man shall be permitted to take advantage of his own 
 wrong. To take advantage of his own wrong and to 
 visit unmerited and over rigorous punishment upon the 
 plaintiff, constitute the sole motive for such defense on 
 the part of the person making it." 
 
 § 82. Pedestrians crossing the highway. — Pedestrians 
 have no superiority of right at street crossings over teams. 
 Persons upon the highway on foot in the act of crossing, 
 and those upon the highway riding upon vehicles, have 
 the right of way in common, each equally with the other,, 
 and in its exercise, each is bound to use ordinary care for 
 his own safety, and to avoid doing injury to any others who 
 may be in the exercise of the equal right of way with 
 them.^ The pedestrian has, however, the right to cross 
 the street at any point, and is by no means restricted to 
 the regular crossings,* although he is entitled to a some- 
 what higher measure of care on the part of a driver of a 
 team, when he attempts to cross at a regular crossing.*' 
 It is the duty, as we have seen,* of one upon the highway 
 who attempts to cross a railway track upon the same level 
 as the roadway, to look attentively up and down the track 
 in order to see whether or not a train is approaching. 
 So, in some jurisdictions, it is held to be the duty of 
 a pedestrian, upon attempting to cross a highway, and 
 especially in attempting to cross the street of a city, to 
 look carefully up and down the street in order not to put 
 
 1 Cotton V. Wood, 8 C. B. (N. S.) Cush. 524; s. C. S3 Am. Dec. 57 ; Sim- 
 568; Barkers. Savage, 45 N. Y. 191; ens v. Gaynor, 89 Ind. 165; Cotterill 
 S. C. 6 Am. Rep. 66; Belton v. Baxter, v. Starkey, 8 Car. & P. 691, and see, 
 54 N. Y. 24s ; s. C. 13 Am. Rep. 578; Boss v. Litton, s Id. 407. 
 
 Brooks V. Schwerin, 54 N. Y. 343 ; ' Williams v. Richards, 3 Car. & 
 
 Myers v. Dixon, 3 Jones & S. 390; Kir. 81. 
 Beach v. Parmeter, 23 Penn. St. 196. * § 63, supra. 
 
 2 Raymond v. City of Lowell, 6 
 
§ 82.] RULE AS AFFECTING HIGHWAYS. 279 
 
 himself into the way of approaching vehicles, and that a 
 failure so to do is negligence as a matter of law.^ But, in 
 Massachusetts, such a failure is only evidence of negli- 
 gence, and the plaintiff is entitled to have it go to the 
 jury.* 
 
 One must not take desperate chances, or make nice 
 calculations as to his ability to dodge approaching vehi- 
 cles, in attempting to cross the crowded thoroughfares in 
 New York. Accordingly, where one attempted to cross 
 a street by rushing in front of a passing street car, but 
 was run over by a cart which he had seen and calculated 
 that he should be able to dodge, such conduct at a cross- 
 ing was held contributory negligence in an action by 
 the injured party against the owner of the cart.® But 
 it is not negligent, in se, says the Supreme Court of 
 Louisiana, to wear a sun-bonnet in the street which may 
 prevent a woman from seeing perfectly in all directions.* 
 Aged and infirm persons, it is to be remembered, have 
 the same rights upon the highway as young, and active, 
 and agile persons,® but it devolves upon such persons to 
 exercise the greater care in proportion to their disability,* 
 e. g., a pedestrian, far advanced in years, must not ven- 
 ture upon an icy sidewalk when he might just as well 
 have taken a safer course on the other side of the street,'' 
 and one whose eye-sight is poor must exercise greater 
 caution than one who sees perfectly.^ 
 
 When a pedestrian is run over in a public street and 
 
 » Barker v. Savage, 45 N. Y. 191 ; * Shea v. Reams, 36 La. Ann. 969. 
 
 S. c. 6 Am. Rep. 66; Baker t/. Pender- ^ Shapleigh v. W^yman, 134 Mass. 
 
 gast, 32 Ohio St. 494; S. C. 30 Am. 118 ; Boss. v. Litton, 5 Car. & P. 407 ; 
 
 Rep. 620. See, also, Sheehan v. Edgar, Barker v. Savage, supra. 
 
 58 N. Y. 631 ; Woolf w. Beard, 8 Car. ' Winn v. City of Lowell, i Allen, 
 
 & P. 373. 177; Davenport w. Ruckman, 37 N. 
 
 2 Shapleigh v. Wyman, 134 Mass. Y. 568; Peach v. Utica, 10 Hun, 477; 
 
 118; Bowser n. Wellington, 126 Id. Sleeper v. Sandown, 52 N. H. 244; 
 
 391 ; Williams v. Grealy. 112 Id. 79. City of Centralia v. Krouse, 64 111. 19. 
 
 Compare Stock v. Wood, 1 36 Id. 353. ' City of Centralia v. Krouse, supra. 
 
 8 Belton V. Baxter, 54 N. Y. 245 ; » Peace v. Utica, supra. 
 S. C. 13 Am. Rep. 578. 
 
28o RULE AS AFFECTING HIGHWAYS. [§ 83. 
 
 injured by one of a coasting party who accidently struck 
 him with his sled, the coasting going on without any 
 license from the city authorities, there is no action against 
 the city ;* nor for a similar injury received by a person 
 while crossing Boston Common aloijg one of the paths 
 where coasting was going on.* 
 
 § 83. Icy sidewalk^. — A very considerable amount 
 of litigation has been occasioned by the presence of ice 
 and snow upon the highways and in the streets of 
 northern towns and cities. In this section it is proposed 
 to consider the rules of law upon that subject so far as 
 they impinge upon the law of contributory negligence. 
 In those States where ice and snow are likely to accu- 
 mulate in large quantities upon the public highways, the 
 proper authorities are usually required, by statute or 
 municipal ordinance, in respect of obstructions from 
 those causes, to exercise ordinary care and diligence to 
 keep the highways in a reasonably safe and convenient 
 condition. When the highways are blocked up or 
 incumbered with snow, it must be removed or trodden 
 down to the extent of rendering the road or street pass- 
 able. It may be supposed that this would be the duty, 
 at least, of a municipal corporation, even in the absence 
 of an express statutory requirement, under that more 
 general rule of law that the highways are to be kept in 
 reasonably good and convenient condition. 
 
 Upon the quisstion how far ice and snow upon a side- 
 walk will constitute a " defect," we look to the case of 
 Providence v. Clapp,* as the leading authority. This 
 case arose under the Rhode Island statute requiring 
 
 • Schultz V. City of Milwaukee, 49 Rep. 387 ; Hutchinson v. Concord, 
 Wis. 254; s. C. 35 Am. Rep. 779; 41 Vt. 271. , 
 Faulkner v. Aurora, 85 Ind. 130; s. * Steele v. City of Boston, 128 
 C. 44 Am. Rep. i ; Ray v. Manches- Mass. 583. See, also, Clark v. Wal- 
 ter, 46 N. H. 59; Pierce v. New Bed- tham, 128 Id. 567. 
 ford, 129 Mass. 534; s. C. 37 Am. » 17 How. (U. S.) i6i. 
 
§ 83.] • RULE AS AFFECTING HIGHWAYS. 28 1 
 
 towns to keep the highways in order, which, also, specifi- 
 cally required the removal of snow and ice when it 
 obstructed passage along the way. It seems that the 
 plaintiff, walking upon the street in the night, slipped 
 and fell and injured himself upon a ridge of trodden snow 
 and ice in the middle of the sidewalk, and it was held 
 that, without reference to any specific requirement in the 
 statute as to the removal of snow and ice from the pave- 
 ment, it was the duty of the city to use ordinary care and 
 diligence to restore the street, after a fall of snow, to a 
 reasonably safe and convenient condition, and that 
 whether the street is in that condition or not is a proper 
 question for the jury. It is a fair conclusion from the 
 opinion in that case that, while snow when it first falls, 
 or ice when it first forms, and until the municipality has 
 had a reasonable time to remove the obstruction and 
 restore the highway to a safe and convenient condition, 
 are not defects or obstructions for which the corporation 
 may be held liable, the accumulation of ice or snow, if 
 it causes injury, after a reasonable time has elapsed in 
 which it might have been removed, is such a defect in 
 the highway as will render the city liable. The court 
 said: "The treading down of snow when it falls in great 
 depth, or in case of drifts, so that the highway or street 
 shall not be blocked up or incumbered, may, in some 
 sense and for the time being, have the effect to remove 
 the obstructions ; but as it respects sidewalks and their 
 uses, this remedy would be, at best, temporary, and, in 
 case of rain or extreme changes of weather, would have 
 
 the effect to increase rather than remove it 
 
 The just rule of responsibility and the one, we think, pre- 
 scribed by the statute, whether the obstruction be by 
 snow or any other material, is the removal or abatement 
 so as to render the highway, street or sidewalk at all 
 
282 RULE AS AFFECTING HIGHWAYS. [§ 83. 
 
 times safe and convenient, regard being had to its locality 
 and uses." ^ 
 
 It is the general rule, in accordance with this view, 
 that snow and ice per se are not defects for which a city 
 may be held responsible, but that accumulation of snow 
 or ice, after a reasonable time has elapsed within which 
 they might have been removed, are actionable obstruc- 
 tions and defects,^ and when one is injured by reason of 
 such an accumulation, if he himself, at the time of the 
 injury, was in the exercise of due care under the circum- 
 stances, he may maintain an action against the corpora- 
 tion whose duty it was to keep the highway in order.* 
 
 It is also a sound rule that mere slipperiness, arising 
 from a smooth surface of ice or snow upon a sidewalk, is 
 not such a defect as will render the city liable to one who 
 sustains injuries from a fall thereon.* ' But when the 
 construction or shape of the pavement is such as to hold 
 the water, and so render accumulations of ice inevitable 
 or probable in cold weather, for slipperiness so caused the 
 city may be liable ; ^ and so, also, when a pedestrian using 
 
 1 Providence v. Clapp, (by Nelson, Cloughersy 7/. City of Waterbury, Sup. 
 
 J.), 17 How. (U. S.) 161. Ct. Err., Conn., 1885, Alb. Law Jour., 
 
 '"The fault for which the town is April 11, 1885; S. C. xix Am. Law 
 
 chargeable, consists in permitting the Rev. 492. 
 
 defect to remain, not in causing it to * Cook v. City of Milwaukee, 24 
 
 exist." Billings v. Worcester, 102 Wis. 270; S. C. I Am. Rep. 183; 
 
 Mass. 329 ; S. C. 3 Am. Rep. 460. Stanton v. Springfield, 12 Allen, 
 
 » McLaughlin z/. City of Corry, 77 566; Johnson v. Lowell, 12 Allen, 
 
 Penn. St. 109; S. C. 18 Am. Rep. 572; Gilbert w. Roxbury, 100 Mass. 
 
 432; Dooley v. City of Meriden, 44 185; Durkin v. Troy, 61 Barb. 437: 
 
 Conn. 117; s. c. 26 Am. Rep. 433; City of Chicago v. McGiven, 78 111. 
 
 Luther v. Worcester, 97 Mass. 269 ; 352 ; City of Chicago v. Bixby, 84 111. 
 
 Seeley w. Town of Litchfield. 49 Conn. 82 ; S. C. 25 Am. Rep. 429 ; McKellar 
 
 134; S. C. 44 Am. Rep. 213; Billings v. City of Detroit, Sup. Ct, Mich. N. 
 
 V. Worcester, 102 Mass. 329; s. c. W. Rep., June 13, 1885; S. C.i9Am. 
 
 3 Am. Rep. 460 ; Nason v. Boston, Law Rev. 664. Compare Billings v. 
 
 14 Allen, 508; Collins v. City of Worcester, 102 Mass. 329; S. C. 3 
 
 Council Bluffs, 32 Iowa, 324; s. C. Am. Rep. 460; Kenney v. City of 
 
 7 Am. Rep. 200; Todd v. City of Cohoes, 16 N. Y. Week. Dig. 206; 
 
 Troy, 61 N. Y. 506 ; Dewire e/. Bailey, Kelly v. Newman, 62 How. Prac. 
 
 131 Mass. 169; s. C. 41 Am. Rep. 156. 
 
 219; Mosey v. Troy, 61 Barb. 580; s Stanton v. Springfield, 12 Allen, 
 
 Mayor v. Mdrriott. 9 Md. 160; Cook 566; and see Billings v. Worcester, 
 
 V. City of Milwaukee, 24 Wis. 270; 102 Mass. 329. 
 
§ 83.] RULE AS AFFECTING HIGHWAYS. 283 
 
 due care is injured by falling on a portion of a city side- 
 walk made of glass and iron, and worn smooth and slip- 
 pery, and it appears that the slipperiness of the pavement 
 was the sole cause of his fall, he may maintain an action 
 against the city for damages for the injury he sustained.^ 
 
 So much for the duty and liability of the town, or 
 other municipal corporation whose duty it is to keep the 
 highway in order, with respect of ice and snow. 
 
 Turning to the reciprocal obligation of the traveler 
 upon the highway, at times when the presence of ice and 
 snow render traveling especially or unusually hazardous, 
 we find that many cases insist upon the rule that when 
 a person voluntarily attempts to pass over a sidewalk 
 which he knows to be dangerous by reason of the ice or 
 snow upon it, when he might avoid it, is guilty of such 
 contributory fault as will prevent a recovery from the 
 corporation whose duty it is to keep the way in a safe 
 condition, in case of an injury because of such an attempt.* 
 , When there is snow and ice upon the ground it is 
 the duty of pedestrians to exercise increased care and 
 caution in going about. They must in each instance 
 exercise ordinary care under the circumstances in deter- 
 mining whether to proceed or to return, when confronted 
 with a dangerous pavement or roadway, and if they are 
 guilty of negligence in concluding to proceed, they can- 
 not recover in case they receive injuries.^ But it is not 
 
 1 Cromarty v. City of Boston, 127 613; S. C. 47 Am. Rep. 739; City of 
 Mass. 329; S. C. 34 Am. Rep. 381. Quincy w. Barker, 81 111. 300; S. C. 25 
 See, also, Crocheren w. North Shore, Am. Rep. 278; Thomas v. Mayor, 
 &c.. Ferry Co., i N. Y. Super. Ct. &c., 28 Hun, 110; Wilson v. City of 
 446; S. C. 56 N. Y. 656; and com- Charlestown, 8 Allen, 137; Durkin 
 pare Borough of Mauch Chunk v. v. Troy, 61 Barb. 437 ; City of Cen- 
 Kline, 100 Penn. St. 119; S. C. 45 tralia w. Krouse, 64 111. 19; Twogood 
 Am Rep. 364, wherein a municipality v. Mayor, New York Common Pleas, 
 is held not liable for an injury to one 1883, cited in 44 Am. Rep. note, 279. 
 who slipped upon the icy surface of See, also, City of Aurora v. Hillman, 
 cobble stones in a street crossing. 90 111. 61 ; Lovenguth v. City of 
 
 2 Shaefler v. City of Sandusky, 33 Bloomington, 71 Id. 238; Osage City 
 Ohio St 246; S. C. 31 Am. Rep. 533; v. Brown, 27 Kan. 74. 
 
 City of Erie v. Magill, loi Penn. St. ' Horton v. Ipswich, 12 Cush. 488. 
 
284 RULE AS AFFECTING HIGHWAYS. [§ 83. 
 
 necessarily negligent for one who knows there is ice upon 
 the pavement to attempt to pass over it, even at night. 
 In such a case one is bound to exercise only ordinary 
 care and prudence.^ Nor, in an action against a town 
 by a husband and wife, for injuries sustained by the 
 wife, by falling on a ridge of ice, which was a plain defect 
 in the highway, will the husband's knowledge of the bad 
 condition of the pavement at that point and that his 
 wife was going there, coupled with his failure to warn 
 her of the risk and caution her to beware of it, prevent a 
 recovery from the town.' 
 
 The owner of city property is not liable for injuries 
 sustained by one in passing over the pavement in front 
 of his premises and slipping on ice formed by water 
 dripping from his house, there being no defect in the 
 premises, no obstruction of the sidewalk by the adjacent 
 owner, and no duty imposed upon him, either by ordi- 
 nance or statute, to keep the pavement free from ice ; ' 
 but the city may, of course, in such a case, be liable upon 
 the grounds already set forth.* Neither is a street car 
 company which, in the lawful and orderly exercise of its 
 franchise, clears the snow from its tracks, liable to the 
 owner of adjacent property for injury done him, by 
 reason of the snow so cleared from the street railway 
 track obstructing the flow of water in the gutter and 
 
 > Evans v. City of Utica, 69 N. Y. » Moore v. Gadsden, 87 N. Y. 84; 
 
 166; s. C. 25 Am. Rep. 165; Dewire s. c. 41 Am. Rep. 352. See, also, 
 
 'V. Bailey, 131 Mass. 169; s. C. 41 City of Keokuk w. Independent Dis- 
 
 Am. Rep. 219; Weston v. Elevated trict of Keokuk, 53 Iowa, 352; S. C. 
 
 Ry. Co., 73 N. Y. 595; cf. Henry 36 Am. Rep. 226; Wenzlick w. Mc- 
 
 , County Turnpike Co. p. Jackson, 86 Cotter, 87 N. Y. 122; s. C. 41 Am. 
 
 Ind. 1 1 1 ; S. C. 44 Am. Rep. 274 ; Rep. 358. 
 
 Kelly V. Railroad Co., 28 Minn. 98; * Reich v. Mayor, &c., 17 N. Y. 
 
 Griffin -v. Auburn, 58 N. H. 121. Week. Dig. 140; Kenney v. City of 
 
 * Street et ux. v. Inhabitants of Cohoes, 16 Id. 206; Kelly v. New- 
 
 Holyoke, 105 Mass. 82; s. C. 7 Am. man, 62 Howr. Prac. 156; Mosey w. 
 
 Rep. 500; cf. Mahoney v. Metropol- Troy, 61 Barb. 580; Mayor. &c., ». 
 
 itan R. R. Co., 104 Mass. 73; Whit- Marriott, 9 Md. 160, and the cases 
 
 taker v. West Boylston, 97 Id. 273. cited to this point, supra. 
 
§ 83.] RULE AS AFFECTING HIGHWAYS. 285 
 
 causing it to back up upon the adjoining property,^ The 
 question whether or not, one who leaves the sidewalk and 
 takes to the roadway on foot and is injured by coming 
 upon a pile of snow in the street, is in a position to com- 
 plain of such pile of snow as a defect, must be left to the 
 jury.* 
 
 It is much questioned whether city ordinances, or, as 
 they are called in New England, by-laws, requiring the 
 owners or occupants of houses upon public highways to 
 clear the snow from before their houses, are valid. Chief 
 Justice Shaw, in an early case in Massachusetts, thought 
 they were, and so decided,' and such regulations have 
 been upheld in that State by subsequent decisions, in no 
 degree, however, relieving the city or town from its proper 
 responsibility for the condition of its ways.* But a con- 
 trary view is more usually taken, and such ordinances 
 have, as a rule, found little favor.® 
 
 The weight of authority brings us to the following 
 conclusions upon this subject : that ice and snow upon 
 the highway are not in se defects for which the town is 
 liable ; that wherever the town is bound to maintain the 
 public highways, it is bound to clear away or remove, 
 within a reasonable time, snow that falls or ice that forms 
 upon the traveled portion of the public ways, and that 
 for a failure so to do an action may be maintained ; that 
 for mere slipperiness, the result of natural causes, there 
 can be no liability, or, in other words, that a municipal 
 corporation is not liable to suits for damages because 
 water will freeze upon the ground in cold weather ; that 
 
 ' Short V. Baltimore City Passenger " Kirby v. Boylston Market Asso- 
 
 Ry. Co., 50 Md. 73; S. C. 33 Am. ciation, 14 Gray, 252. 
 
 Rep. 298. ' Gridley v. City of Bloomington, 
 
 » Gerald w. Boston, 108 Mass. 584. 88 III. 554; S. C. 30 Am. Rep. 566; 
 
 Compare Hall w. Lowell, 10 Cush. 260; but see, also, City of Hartford v. 
 
 Stanton w. Springfield, 12 Allen, 566. Talcott, 48 Conn. 525; S. C. 40 Am. 
 
 » Goddard, Petitioner, &c., 16 Rep. 189. 
 Pick. 504 ; s. C. 28 Am. Dec. 259. 
 
286 RULE AS AFFECTING HIGHWAYS. [§ 84. 
 
 the traveler must exercise somewhat more than his usual 
 care and prudence in going about when there is snow and 
 ice upon the ground ; that it is contributory negligence 
 on his part to go upon pavements, or parts of the high- 
 way that he knows to be dangerous by reason of the 
 presence of ice or snow, when he might avoid it and take 
 another course ; that mere knowledge that the pavement 
 is icy or slippery is not sufficient to fasten negligence 
 upon one who goes upon it ; and that city ordinances 
 which require every man to sweep the snow from before 
 his own door, are of somewhat questionable validity. 
 
 § 84. Injuries to persons in the highway from some, 
 thing falling from the adjoining property. — It is the 
 duty of the owners of property adjoining a public high- 
 way to take reasonaible and ordinary care to prevent 
 anything from falling into the highway to the injury of 
 persons who are lawfully there. Accordingly, when 
 buildings whose walls are upon the street become ruin- 
 ous, and are likely to fall, it is the duty of the owner 
 to take proper steps to prevent them from falling into the 
 highway.^ Such a building is, moreover, a public nuis- 
 ance, for which an indictment will lie ;* but when one, 
 in the exercise of due care in using the highway, is 
 injured by something falling from such a ruinous and 
 tumble-down structure, he may have his action against 
 the owner or occupant of the property.* And there is 
 a like rule when something falls out of a window and 
 injures one passing along the highway beneath;* and 
 so when a hanging sign falls upon the head of a pass- 
 
 ' Mullen V. St. John, 57 N. Y ray e/ McShane, 52 Md. 217; s. C. 36 
 567; S. C IS Am. Rep 530 (by Am. Rep. 367. But see, contra. 
 
 Dwight, C); Rector of the Church Mahoney v. Libbey, 123 Mass. 20; 
 
 of the Ascension v. Buckhart, 3 Hill. s. C. 25 Am. Ren 6 
 
 "93- 
 
 ^ Regina v. Watts, i Salk. 357. 
 
 ' The cases cited supra^ and Mur- 
 
 S. c. 25 Am. Rep. 6. 
 '93- . .. ^ „ " Byrne v. Boadle, 2 Hurl. & C. 
 
 ^ Regina v. VVatts, i Salk. 357. 722. 
 
§ 84.J RULE AS AFFECTING HIGHWAYS. 287 
 
 erhy^ there is an action against the owner or occupant 
 of the property, but not against the city as for a de- 
 fect in the highway.* It seems, however, that the mu- 
 nicipality is liable for injuries to passers-by from defect- 
 ively hung awnmgs over the pavement,' but not for snow 
 that falls from an adjoining roof to the injury of a trav- 
 eler.* When signs are negligently put up, the person who 
 is responsible for the defective hanging is liable ; ^ and so 
 when buildings are so constructed as to project ice or 
 snow upon the highway during a thaw, the owner of the 
 property is liable for damage resulting to a passer-by ; * or 
 when, in erecting a wall upon property adjoining the 
 highway, a brick is carelessly allowed to fall upon the 
 head of a traveler,'' an action may be maintained, but not 
 in favor of trespassers or persons not exercising due 
 care.* 
 
 In Byrne v. Boadle ® it appears that an injury was 
 caused by the falling of a barrel into the highway from 
 the upper window of a shop. To the point of the pro- 
 prietor's liability Baron Pollock said : "There are many 
 accidents from which the presumption of negligence can- 
 not arise ; but this is not true in all cases. . . It is the 
 duty of persons who keep barrels in a warehouse to take 
 care that they do not roll out, and, I think, that such a 
 
 1 Salisbury v. Herchenroder, 106 Lowell, 13 Gray, 59. See, also, Kear- 
 Mass. 458; S. C. 8 Am. Rep. 354. ney v. London, &c., Ry. Co., L. R. 
 
 2 Taylor v. Peckham. City Treasur- 6 Q. B. 759; Rylands v. Fletcher, L. 
 er, &c., 8 R. L 349; S.C. 5 Am. Rep. R. i Exch. 265; affirmed, L. R. 3 H. 
 578; Hewiston v. City of New Haven, L. 330; s. C. 3 Hurl. & C. 774; Bige- 
 37 Conn. 475; S. C. 9 Am. Rep. 342'; low v. Reed, 51 Me. 325- 
 
 Jones 7/. Boston, 104 Mass. 75 ; S. C. ' Jager v. Adams, 123 Mass. 26 ; s. 
 
 6 Am. Rep. 194 C 25 Am. Rep. 7. 
 
 3 Drake v. Lowell, 13 Mete. 292; « Zoebischi/. Tarbell, 10 Allen, 385; 
 Day V. Milford, 5 Allen, 98. Roulston v. Clark, 5 E. D. Smith, 
 
 * Hixon V. Lowell, 13 Gray, 59; cf. 366 ; Stone v. Jackson, 16 C. B. 199; 
 
 Rowell V. City of Lowell, 7 Id. 100; s. C. 32 Eng. Law & Eq. 349; Bolch 
 
 Shipley v. Fifty Associates, loi Mass. v. Smith, 7 Hurl. &N. 736. 
 251 » 2 Hurl. & C. 722; s. c. 33 L. J. 
 
 5 The cases su^ra. (Exch.), 1359 L. T. (N. S.), 45°; 12 
 
 « Garland v. Towne, 55 N. H. 55; V^eek. Rep 279. 
 S. C. 20 Am. Rep. 164; Hixon v. 
 
288 RULE AS AFFECTING HIGHWAYS. [§ 85. 
 
 case would, beyond all doubt, sEorA prima facie evidence 
 of negligence. A barrel could not roll out of a ware- 
 house without some negligence. So, in building or re- 
 pairing a house, if a person passing along the road is in- 
 jured by something falling upon him, I think the accident 
 would be prima facie evidence of negligence." ^ 
 
 § 85. Children injured upon the highway. — ^The gen- 
 eral rules of law which require the exercise of especial 
 care toward children of tender years when they are ex- 
 posed or expose theniselves to the danger of injury from 
 the negligence of others,^ and which, in some jurisdic- 
 tions, impute the negligence of a parent or custodian to 
 the infant who brings an action for damages for injuries 
 sustained by reason of another person's want of care 
 and caution,' are applicable, of course, in all respects, to 
 actions brought for injuries which befall children upon 
 the highway. The question often arises whether children 
 may lawfully and properly play in the street, and whether, 
 in case they are injured, while at play upon the highway, 
 by the negligence of the driver of a vehicle or otherwise, 
 there can be a recovery, or whether such conduct on their 
 part is not such contributory negligence as to bar the 
 action. In New York it seems that children may law- 
 fully play in the street ; * and so in Pennsylvania ' and in 
 
 1 See, also, Scott v. London Docks grove v. Ogden, 49 N. Y. 255 ; S. C. 
 Co., 3 Hurl. & C. S96; S. C. II Jur. 10 Am. Rep. 361 ; Ihl w. Forty-second 
 (N. S.), 204; 34 L. J. (Exch.), 17, St. Ry. Co., 47 N. Y. 317 ; S. C.7 Am. 
 220; II Week. Rep. 410; 11 L. T. Rep. 450. 
 
 (N. S.), 148; 10 Jur. (N. S.), 1107 ; » Pittsburgh, &c., R. R. Co. v. 
 
 Maddox w. Cunningham, 68 Ga. 431 ; Pearson, 72 Penn. St. 169; Kay w. 
 
 S. C. 45 Am. Rep. 500. And com- Penn. R. R. Co., 65 Id. 369; S. C. 3 
 
 pare, Domat on Civil Law, § 1557- Am. Rep. 628 ; Philadelphia, Ac, R. 
 
 2 Vide %% 39, 41, sufira. R. Co. v. Long, 75 Penn. St. 257. 
 8 Chap. IV, supra, in loco. Compare Smith v. Heston villa, &c., R. 
 * McGary v. Loomis, 63 N. Y. 104; R. Co., 92 Id. 450 ; s. C. 37 Am. Rep. 
 
 S. C. 20 Am. Rep. 512 ; McGuire v. 705 ; Gillespie v. McGowen, 100 Penn. 
 Spence. 91 N. Y.303. Compare Pear- St. 144; s. C. 45 Am. Rep. 365 ; Fair- 
 sail V. Post, 20 Wend, in, Mr. Jus- banks v. Kerr, 70 Penn. St. 86; s. C. 
 tice Cowen's opinion at page 131 ; Cos- 10 Am. Rep. 664. 
 
§ 85.] RULE AS AFFECTING HIGHWAYS. 289 
 
 New Hampshire,^ while in Maine* and Massachusetts* 
 the courts incline to the opposite view, and refuse a rem- 
 edy to children who are injured while playing in the 
 street. It appears, therefore, that the courts are not 
 agreed upon the point. The New York rule is well 
 announced by Chief Justice Church in McGary v. 
 Loomis : * "A point is made upon an exception to the 
 remark of the judge that the child had the right to play 
 on the sidewalk. This language was used in connection 
 with the remark that the child had a right to be on the 
 sidewalk, and the whole force of the remark as to the 
 right to play was, that being on the sidewalk, the fact of 
 playing there would not constitute contributory negli- 
 gence so as to defeat a recovery. If it did not mean this 
 it had no relevancy to the case, and was not for that 
 reason error. There was no occasion for a charge as to 
 the legal right of children to play on the sidewalk, to the 
 exclusion of or interference with persons passing and 
 repassing, nor was any such idea intended. That it is not 
 unlawful, wrongful or negligent for children on the side- 
 walk to play is a proposition which is too plain for 
 comment."* But, on the other hand, we find the Supreme 
 Court of Maine saying : " When children appropriate a 
 part of the road for their sports, and cease to use it as a 
 way for travel, the town or city through which the way 
 passes is not responsible for injuries which may be 
 received by any of the children so engaged, although the 
 
 > Vamey v. Manchester, 58 N. H. gett v. Boston, 8 Allen, 237 ; Stock v. 
 
 430; S. C. 4.2 Am. Rep. 592 ; Petition Wood, 136 Mass. 353 ; Gibbonsv. Wil- 
 
 of Mt. Washington Road Co., 35 N. liams, 135 Id. 333. 
 H. 134 * 63 N. Y. 104, supra. 
 
 2 Stinson v. City of Gardiner, 43 " In the later case of McGuire v. 
 
 Me. 248. Spence, 91 N. Y. 303, this right of 
 
 » Tighe V. Lowell, 119 Mass. 472 ; children, upon general principles, to 
 
 Lyons w. Brookline, 119 Id. 491. Com- play in the street, is further insisted 
 
 pare Stickney v. Salem, 3 Allen, 374; upon. 
 Hunt V. Salem 121 Mass. 294 ; Blod- 
 
 19 
 
290 RULE AS AFFECTING HIGHWAYS. [§ 85. 
 
 injuries may take place through a defect in the road."'^ 
 And, in Blodgett v. Boston,* the Supreme Judicial Court 
 of Massachusetts said : " We by no means intend to say 
 that a child, who receives an injury caused by a defect in 
 a street while passing over or througji it, would be barred 
 of all remedy against a town merely because he was also 
 engaged in some childish sport or amusement. There 
 would exist in such a case the important element that he 
 was actually traveling over the way. But this element is 
 wholly wanting in the case at bar. We have the naked 
 case of an appropriation of a portion of a public street to 
 a use entirely foreign to any design to pass or repass over 
 it for the purpose of travel within the meaning of the 
 statute. It is to this precise case that we confine the 
 expression of our opinion." In later cases in this State it 
 is plainly declared to be the law that whenever children 
 make a play-ground of the highway, they are remediless 
 in case of injury from defects in the street.* 
 
 " It being legally possible," said Chief Justice Doe, of 
 New Hampshire," to cease moving forward or backward 
 in a street without discontinuing a traveler's use of the 
 street, and it being possible for a child as well as an 
 adult to make a traveler's use of it for recreation, there 
 may be some doubt how the line is to be drawn between 
 the law and the fact in such a case as Blodgett v. Boston. 
 Of the case of a boy injured while using a portion of the 
 highway solely for the purpose of enjoying the amuse- 
 ment of coasting, the court there say it would hardly be 
 contended that the town could be held liable. Perhaps 
 such a case should be considered in connection with the 
 case of the boy's parents injured while using the same 
 portion of the highway solely for the purpose of enjoying 
 the amusement of a sleigh-ride. In the highway act 
 
 ' Stinson v. City of Gardiner, 42 " See the cases cited supra to this 
 Me. 248. point. 
 
 2 8 Allen, 237. 
 
§ 85.] RULE AS AFFECTING HIGHWAYS. 29 1 
 
 there is no arbitrary rule of discrimination against the 
 amusements of children, no prohibition of the use of 
 gravitation as a motive power, and no requirement that a 
 person going out to drive for amusement, or for fresh air 
 and health of body or mind, shall not turn in the road 
 more than once, or shall not go over the same route more 
 than twice." ^ 
 
 The sounder view, in my judgment, is, that it is not 
 in se negligence for children to amuse themselves in the 
 street nor, necessarily, negligent in parents to permit 
 their children to do so. Much must depend upon the 
 circumstances of each individual case. It is easy to see 
 that for children of tender years to be allowed to play in 
 the lower part of Broadway, in the city of New York, 
 might not improperly be held negligence as matter of 
 law. While upon many other streets, even in the great 
 cities which are not greatly thronged with teams and pe- 
 destrians, it might as justly be held entirely prudent to 
 allow children to amuse themselves. Any straiter rule 
 than this would deny to the children of the poor in the 
 cities the benefit of air and exercise. If all children must 
 go to the park, or be attended by a nurse to escape the 
 imputation of negligence, how shall the children of par- 
 ents, whose lack of means forbids these luxuries, take ex- 
 ercise, and what is the parent of such children to do? 
 The courts of Pennsylvania have taken an eminently just 
 and humane view of this matter,* and what seems to be 
 the only view that does not deny to poor parents the 
 ordinary blessings of light and air for their children. This 
 is not at all the same thing as to justify the use of the 
 highway for sports or games to the inconvenience or 
 
 ■ Vamey v. Manchester, 58 N. H. Hestonville Street R. R. Co., 57 Id. 
 
 430; s. C. 42 Am. Rep. 592. 172. Compare O'Flaherty v. Union 
 
 * PhiIa..&c.,R.R. Co. v. Long, 75 R. R. Co., 45 Mo. 70, and see § 45, 
 
 Penn. St. 257 ; Pittsburgh, &c., R. R. supra. 
 Co. V. Pearson, 72 Id. 169 ; Glassey v. 
 
292 RULE AS AFFECTING HIGHWAYS, [§ 86. 
 
 trouble of travelers. The lawful purposes and uses of the 
 king's highway are well defined. When sport, either of 
 children or adults, interferes with the regular and proper 
 use of the street it is a nuisance for which the law pro- 
 vides an action or an abatement. Conceding this, it may- 
 well be insisted that children shall not, because they play 
 in the highway without interfering with the rights of 
 others, be, on that account, denied a remedy when they 
 are injured through the carelessness or negligence of 
 others. 
 
 Aside from the question of the right of children to 
 play upon the highway, there is, perhaps nothing pecu- 
 liar or worthy of mention in the law as it affects the rights 
 and liabilities of this class of persons upon the highway, 
 which, as properly pertaining to the subject-matter of this 
 treatise, is not adequately considered elsewhere. 
 
 § 86. Collisions upon the highway. — The law of the 
 road in the United States requires travelers in vehicles, 
 when they approach each other upon a highway, each to 
 turn to the right, if it be reasonably practicable so to do, 
 and statutes in most of the States prescribe it explicitly. 
 These statutes usually provide that travelers shall, in pass- 
 ing, each turn to the right of "the centre^ of the road.'"* 
 When one is on the wrong side of the road at the time of a 
 collision it '\% prima facie evidence of negligence upon his 
 part,* but will not, as matter of law, defeat the action if 
 it appears that it did not contribute to produce the in- 
 jury for which the action is brought, and the plaintiff" be 
 himself free from the imputation of negligence in other 
 
 ' Anglice, middle. Damon v. Inhabitants of Scituate, 1 19 
 
 * As to what this means, see Ear- Mass. 66; s. C. 20 Am. Rep. 315; 
 
 ing t/. Lansingh, 7 Wend. 185; Pal- Smith w. Gardiner, 1 1 Gray, 418 ; Spof- 
 
 mer v. Barker, 3 Fairf. (Me.) 338; ford r;. Harlow, 3 Allen, 176; Jones z*. 
 
 Smith V. Dygert, 12 Barb. 613; Jaq- Andover, 10 Id. 18. See, also, Steele 
 
 uith 7/. Richardson, 8 Mete. 213. v. Burkhardt, 104 Mass. 59;$. C.& 
 
 ' Burdick v. Worrall, 4 Barb. 596; Am. Rep. 191. 
 
§ 86.] RULE AS AFFECTING HIGHWAYS. 293 
 
 respects.^ Being upon the proper side of the road, how- 
 ever, will not, of itself, be conclusive evidence of an ex- 
 ercise of due care and caution. One may be upon the 
 right side and yet be wrong,* especially if it appears that 
 by taking the other side, instead of rigidly adhering to 
 the right, the injury might have been avoided.' The law 
 of the road is said, in Pennsylvania, to apply only to 
 travelers who approach each other in coming from oppo- 
 site directions,* but in Louisiana it is held to apply equal- 
 ly to persons moving in the same direction when one at- 
 tempts to pass the other.^ When one traveler attempts, 
 as he has a right to do, to pass another who is ahead of 
 him and moving in the same direction, it is said that the 
 one ahead is not under any legal obligation to turn to 
 either side to allow the one behind to go on in front of 
 him,® and that the one who attempts to pass does so at 
 his peril, and is responsible for all damages which he 
 thereby causes to the one whom he attempts to pass.^ 
 But, in an action against a town for injuries sustained 
 through a defect in the highway while attempting to pass 
 another traveler going in the same direction, it is distinct- 
 ly declared that such attempt, if not made recklessly, is 
 not in se negligent, and, accordingly, not contributory 
 negligence which will prevent a recovery.* It is not neg- 
 ligent, says the Supreme Court of Kansas, not to be on 
 the lookout for a runaway team that dashes up from be- 
 
 1 Kennard v. Burton, 25 Me. 39; hue v. Dix, 2 Gray, 181; Smith v. 
 
 S. C. 43 Am. Dec. 249; Parker w. Ad- Gardiner, ii Gray, 418; O'Malley w. 
 
 ams, 12 Mete. 415; S. C. 46 Am. Dec. Dom, 7 Wis. 236, 
 
 694; Simmonson v. Stellenmerf, i * Bolton v. Colder, i Watts, 360. 
 
 Edm. Sal. Cas. 194; Clay v. Wood, 5 ' Avegno v. Hart, 25 La. Ann. 235 ; 
 
 Espin, 44; Chaplin v. Hawes, 3 Car. S. C. 13 Am. Rep. 133. 
 
 & P. 555 ; Wayde v. Lady Carr, 2 « Bolton v. Colder, supra. 
 
 Dow & Ry. 255, and the cases gener- ' Avegno v. Hart, supra. 
 
 ally last cited. " Popper v. Wheatland, 59 Wis. 
 
 ' Parker v. Adams, supra. 623 ; Mochler v. Town of Shaftsbury, 
 
 s Brooks V. Hart. 14 N. H. 307; 46 Vt. 580; S. C. 14 Am. Rep. 634. 
 
 Johnson v. Small, 5 B. Mon. 25 ; Good- 
 
294 RULE AS AFFECTING HIGHWAYS, [§ 8/. 
 
 hind, and runs against your vehicle and does you an in- 
 jury,^ but it is such contributory negligence as will pre- 
 vent a recovery to hitch a horse by the roadside in such a 
 way that the hind wheel of your buggy stands in the rut 
 of the beaten track, so that another person in driving by 
 runs into it without diverging to any degree from the 
 track.** The law of the road does not usually apply to 
 persons on horseback who must, as a rule, yield the road 
 to a vehicle,* especially to one heavily loaded.* It is an 
 almost unnecessary reiteration of elementary rules to say 
 that contributory negligence, upon the part of one who 
 brings his action for damages for injuries sustaified upon 
 the highway by reason of the negligence of another, is a 
 defense in the same sense and to the same extent that it 
 is in actions for any other class of injuries. There is; 
 nothing that I know peculiar in this respect in actions of 
 this nature. The plaintiff must himself be free from 
 fault contributing to produce or occasion the mischief of 
 which he complains, or his right of action is gone.® 
 
 § 87. Injuries upon ferry boats, — A ferryman is a 
 common carrier and, as such, becomes liable for the safety 
 of his passengers and their baggage as soon as he signi- 
 fies his readiness or willingness to receive them.* But^ 
 
 1 Moulton V. Aldrich, 28 Kan. yya. v. Sewall, 66 Me. 376; Harpell v. Cur- 
 
 * Le Baron v. Joslin, 41 Mich. 313. tis, i E. D. Smith, 78; McLane v. 
 
 ° Dudley v. BoUes, 24 Wend. 465. Sharpe, 2 Harr. (Del.) 481 ; Fales v. 
 
 ■* Washburn v. Tracy, 2 D. Chip. Dearborn, I Pick. 344; Daniels v. 
 
 (Vt.) 128; s. c. 15 Am. Dec. 661; Clegg, 28 Mich. 32; Brooks w. Hart, 
 
 Beach v. Parmenter, 23 Penn. St. 196. 14 N. H. 307; Knapp v. Salsbury, 2 
 
 5 Kennard v. Burton, 25 Me. 39-, Camp. 500; Jones -u. Boyce, i Stark, 
 
 s. c. 43 Am. Dec. 249; Parker v. Ad- 493; Chaplin v. Hawes, 3 Car. & P. 
 
 ams, 12 Mete. 415 ; S. C. 46 Am. Dec. 554: Pluckwell v. Wilson, 5 Id. 375;- 
 
 694; Lane v. Crombie, 12 Pick. 177; Williams 7/. Holland, 6 Id. 23 ; Wayde 
 
 Monroe v. Leach, 7 Mete. 274 ; Mab- v. Lady Carr, 2 Dow & R. 255. 
 ley V. Kittleberger, 37 Mich. 360 ; « May v. Hanson, ; Cal. 360 ; S. C. 
 
 Moody V. Osgood, 54 N. Y. 488; 63 Am. Dec. 135; Richards w.Fuqua's 
 
 Wynn v. AUard, 5 Watts & S. 524; Admr. 28 Miss. 792 ; S. C. 64 Am. Dec. 
 
 Drake v. Mount, 33 N. J. (Law), 441 ; 121 ; Griffith v. Cave, 22 Cal. 235; 
 
 Lane v. Bryint, 9 Gray, 245; Wood Clark z*. Union Ferry Co., 35 N. Y. 
 
 V. Luscombe, 23 Wis. 287 ; Larrabee 485 ; Willoughby v. Horridge, 12 C. 
 
§ 87-] RULE AS AFFECTING HIGHWAYS. 295 
 
 when one, in taking his property upon a ferryboat, retains 
 possession of it, the liability of the ferryman is thereby 
 essentially modified. He is liable for negligence, but is 
 not an insurer as to such property.^ In view of the con- 
 struction of ferryboats, and the habit of passengers to 
 crowd toward the bow as the boat approaches the land- 
 ing, it is held not necessarily negligent — that is, not neg- 
 ligent as matter of law, for a passenger on a ferryboat to 
 stand near the bow as the boat is landing.* But, where a 
 child six years of age, in leaving a ferryboat constructed 
 in the usual manner, fell through the guards where the 
 boat fitted in to the slip and was drowned, it appearing 
 that no similar accident had ever happened,- the ferry 
 company were held not liable.* And when one drove a 
 spirited team upon a ferryboat and negligently suffered 
 them to get away from him, whereupon they became 
 frightened, plunged overboard, and were drowned, it was 
 held that in the absence of any proof of negligence on 
 the part of the ferry company, they were not liable for the 
 loss.* 
 
 B. 745; Self v. Dunn, 42 Ga. 528; Winisimmet Co., 7 Cush. 156; Whar- 
 
 Albright V. Penn, 14 Texas, 290; ton on Nag., § 707. 
 
 Littlejohn v. Jones, 2 McMuU, 365; ^ Peverly v. City of Boston, 136 
 
 S. C. 39 Am. Dec. 132; Sanders Mass. 366; S. C. 49 Am. Rep. 37; 
 
 V. Young, I Head, 219; Wilson v. Cleveland z'. Steamboat Co., 68 N. Y. 
 
 Hamilton, 4 Ohio St. 722 ; Miller v. 306 ; Gannon v. Union Ferry Co., 29 
 
 Pendleton, 8 Gray, 547; Claypool v. Hun, 631 ; Hawks v. Winans, 74 N. 
 
 McAllister, 20 111. 504; Chevallier v. Y. 609; S. C. 42 N. Y. Super. Ct. 
 
 Straham, 2 Texas, 115 ; S. C. 47 Am. 451 ; but, see contra, Cunningham v. 
 
 Dec. 639, and the note ; Slimmer v. Lyness, 22 Wis. 245. 
 
 Merry, 23 Iowa, 94; Angell on Car- ' Loftus v. Union Ferry Co., 84 N. 
 
 riers, § 82 ; Story on Bailments, § 496 ; Y. 455 ; S. C. 38 Am. Rep. 533. Com- 
 
 2 Kent's Com. 599. pare Dougan T/.Champlain Trans. Co., 
 
 ■ Wyckoff V. The Ferry Co., 52 N. Y. 56 N. Y. i, and see, also, Crocheron v. 
 
 32; S. C.ii Am. Rep. 650; Harney w. North Shore, &c., Ferry Co., 56 Id. 
 
 Rose, 26 Ark. 3 ; S. C. 7 Am. Rep. 656. 
 
 595. See, also, upon the general ques- * Dudley v. Camden and Phila. 
 
 tion of when the liability of a common Ferry Company, 33 N. J. (Equity) 25 ; 
 
 carrier attaches to a ferryman, Blake- S. C 36 Am. Rep. 501 ; to the same 
 
 ley V. Le Due, 19 Minn. 187; Gour- effect, see Evans v. Rudy, 34 Ark. 
 
 dine v. Cook, i Nott & M. 19; Cohen 385 ; Yerkes v. Sabin, 97 Ind. 141 ; S. 
 
 V. Hume, i McCord, 444 ; White v. C. 49 Am. Rep. 434. 
 
296 RULE AS AFFECTING HIGHWAYS. [§ 88. 
 
 § 88. Injuries on and about street cars. — In actions 
 brought against street car companies, by passengers and 
 others, for injuries sustained by reason of the negligence 
 of the company's employees infaciendo or in non faciendo, 
 contributory negligence is very often a defense. We, 
 therefore, in this and the following sections proceed to 
 consider the law in point as affecting that defense in ac- 
 tions of this nature. Street railway companies, as carriers 
 of passengers, are common carriers and ipso facto bound 
 to the full measure of a carrier's liability for the safety of 
 those who ride in their cars. They are accordingly liable 
 for injuries that result to their passengers from the negli- 
 gence of their servants and agents within the scope of their 
 proper employment.^ Among the duties which the law im- 
 poses upon the street railway company is that of protecting 
 its passengers from insult or assault, and for a failure in 
 this regard the passenger may have his action, if the com- 
 pany's servants are in any respect negligent or blamcr 
 worthy.^ The company is also responsible for an unlaw- 
 ful assault or for an excess of force on the passenger by 
 its employees acting in the line of their duty,^ but not 
 
 1 Holly V. Atlanta Street Railroad, 8 Bush. 147; Hoffman v. New York, 
 
 61 Ga. 215 ; s. C. 34 Am. Rep. 97; &c., R. R. Co., 87 N. Y. 25; S. C. 41 
 
 Balto. City Passenger R. R. Co. v. Am. Rep. 337 ; Chicago, &c., R. R. 
 
 Kemp, 61 Md. 619; s. C. 48 Am. Co. v. Flexman, 103 III. 546; Keo- 
 
 Rep. 134; Putnam v. Broadway, &c., kuk, &c., Packet Co. v. True, 88 Id. 
 
 Ry. Co., SS N. Y. 108; S. C. 14 Am. 608; Goddard v. Grand Trunk Ry. 
 
 Rep. 190 ; cf. Pittsburgh, &c., R. R. Co., S7 Me. 202 ; S. C. 2 Am. Rep. 39; 
 
 Co. V. Hinds, 53 Penn. St. 512; New Carter v. Louisville, &c., R. R. Co., 
 
 Orleans, &c., R. R. Co. v. Burke, 53 98 Ind. 552; s. C. 49 Am. Rep. 780; 
 
 Miss. 200; S. C. 24 Am. Rep. 689; Johnson v. Chicago, &c., R. R. Co., 
 
 Weeks v. New York, &c., R. R. Co., 58 Iowa, 348; Benton v. Id., 55 Id. 
 
 72 N. Y. 50; s. C. 28 Am. Rep. 104. 496 ; Nevin v. Pullman, &c., Car Co., 
 
 s See the cases cited, supra. 106 111. 222 ; S. C. 46 Am. Rep. 688 ; 
 
 3 Passenger Railroad Co. v. Young, Bryant v. Rich, 106 Mass. 180; s. C. 
 
 21 Ohio St. 518; s. C. 8 Am. Rep. 8 Am. Rep. 311; Ramsden z*. Boston, 
 
 78; Higgins?/. Watervliet, &c., R. R. &c., R. R. Co., 104 Mass. 117; S. C 
 
 Co., 46 N. Y. 23 ; s. C. 7 Am Rep. 6 Am. Rep. 200 ; Limpus v. London 
 
 293 ; Sanford v. Eighth Ave. R. R. Genl. Omnibus Co., i Hurl. & C. 541 ; 
 
 Co., 23 N. Y. 343 ; Jackson v. Second Bayley v. Manchester, &c., Ry. Co., Li 
 
 Ave. R. R. Co., 47 Id. 274; s. C. 7 R., 7 C. P. 415; The Thetis, L. R., 2 
 
 Am. Rep. 448 ; cf. Sherley 7/. Billings, A. & E. 365. 
 
§ 88.] RULE AS AFFECTING HIGHWAYS. 297 
 
 when the act of the employee is wanton or malicious 
 and outside the apparent scope of his duty.^ 
 
 In Goddard v. Grand Trunk Ry. Co.^ the court, upon 
 this point, says : " The carrier's obligation is to carry his 
 passenger safely and properly, and to treat him respect- 
 fully ; and, if he entrusts the performance of this duty to 
 his servants, the law holds him responsible for the man- 
 ner in which they execute the trust He 
 
 must not only protect his passengers against the violence 
 and insults of strangers and co-passengers, but a fortiori 
 against the violence and insults of his own servants. If 
 this duty to the passenger is not performed — if this pro- 
 tection is not furnished — but, on the contrary, the pas- 
 senger is assaulted and insulted through the negligence 
 of the carrier's servant, the carrier is necessarily respon- 
 sible." 
 
 It is held in New York that a street car conductor is 
 not bound to eject a passenger who addresses insulting 
 remarks to his fellow-passengers, although he is manifest- 
 ly intoxicated, if, upon being admonished by the con- 
 ductor, he remain quiet and unoffensive, and that the 
 company is not to be held responsible for the results of a 
 subsequent unlooked for attacks committed by the 
 drunken passenger upon the passenger whom he had 
 previously insulted.* But in the District of Colum- 
 bia it seems that when one appears to be drunk, being 
 
 ' Isaacs V. Third Ave. R. R. Co., 428 ; s.C. 44 Am. Rep. 687; Wabash, 
 47 N. Y. 122; s. C. 7 Am. Rep. 418. &c., R. R. Co. v. Rector, 104 111. 301 ; 
 [This case has been doubted and, per- Towanda Coal Co. v. Heeman, 86 
 haps, to some extent, even overruled. Penn. St. 418: Brown v. Hannibal, 
 See Shea v. Sixth Ave. R. R. Co., 62 &c., R. R. Co., 66 Mo. 588; Little 
 N. Y. 180; Mott V. Consumer's Ice Miami, &c., R. R. Co. 7/.Wetmore, 19 
 Co., 73 Id. 543, and, although it is Ohio St. no; S. C. 2 Am. Rep. 373; 
 questioned and disapproved in Wood's McManus v. Crickett (by Lord Ken- 
 Master & Servant, §§ 587, 655, 656, I yon), i East. 106. 
 am still constrained to regard the po- * 57 Me. 202 ; s. C. 2 Am. Rep. 39. 
 sition it takes as sound, and the case » Putnam v. Broadwray, &c., R. R. 
 itself as good law.] See, also, Marion Co., 55 N. Y. 108 ; s. C. 14 Am. Rep. 
 •V. Chicago, &c., R. R. Co., 59 Iowa, 190. 
 
298 RULE AS AFFECTING HIGHWAYS. [§ 88. 
 
 sick and unable to sit up properly, and vomiting, the con- 
 ductor may lawfully eject him from the car, and that, too, 
 whether his sickness proceeds from drunkenness or not.^ 
 Where passengers are intoxicated and disorderly, and, 
 upon being admonished by the conductor, refuse to be 
 quiet, it is the plain duty of the conductor to compel 
 them to leave the car. Street cars are for the exclusive 
 use and benefit of sober and orderly folk. That a passen- 
 ger is drunk will not, of itself, justify the conductor in 
 ejecting him, but if, in addition to that, he is disorderly 
 and refuses to be controlled, or is, by reason of his cups, 
 disgusting and offensive to the other passengers, he has, 
 being in that condition and so deporting himself, no right 
 to ride, and the conductor may lawfully require him to 
 leave the car.* The driver of a street car must, like the 
 driver of any other vehicle upon the highway, exercise 
 ordinary care not to run over pedestrians, or to drive his 
 car into collision with wagons or carriages also upon the 
 street. His failure in this respect will render the com- 
 pany liable in damages to the person injured ; ® as where, 
 from idle curiosity the driver, instead of watching his 
 horses and looking ahead and otherwise properly attend- 
 ing to his duties, stares at a young lady in a doorway,* or 
 
 1 Lemont Ji. Washington, &c., R. New Orleans, &c., R. R. Co. w. Burke, 
 R. Co., I Mackey, 180; s. c. 47 Am. 53 Miss. 200; s. C. 24 Am. Rep. 689; 
 Rep. 238. See, also, s. c. 2 Mackey, Pittsburgh, &c., R. R. Co. v. Pillow, 
 502 ; S. C. 47 Ahj. Rep. 268, upon an- 76 Penn. St. 510 ; S. C. 18 Am. Rep. 
 other point which will interest the cu- 424. 
 
 rious reader. ' Railroad Co. v. Gladmon, 15 Wall. 
 
 2 Lemont v. Washington, &c., R. 401 ; Albert v. Bleecker St. R. R. Co., 
 R. Co., I Mackey, 180, supra, and see, 2 Daly, 389; Cohen v. Dry Dock.&c, 
 also, Pittsburg, &c., R. R. Co v. R. R. Co., 69 N. Y. 170: Pendleton 
 Hinds, 53 Penn. St. 512; Flint v. St. R. R. Co. v. Shires, 18 Ohio St. 
 Norwich, &c.. Trans. Co., 34 Conn. 255 ; Id. v. Stallman, 22 Id. I ; Liddy 
 554; s. C. 6 Blatchf. 158; Pearson v. v. St. Louis, &c., R. R. Co., 40 Mo. 
 Duane, 4 Wall. 605 ; Vinton v. Mid- 506. 
 
 dlesex R. R. Co., 11 Allen, 304; Mur- * Baltimore, &c., R. R. Co. v. Mc- 
 
 phy V. U. P. R. R., 118 Mass. 228; Connell, 43 Md. 534, 553. 
 
§ 89.] RULE AS AFFECTING HIGHWAYS. 299 
 
 looks at a fire/ or a pigeon,'' or talks to his friend riding 
 with him upon the platform,® or otherwise neglects his 
 business to gratify his own curiosity or idleness.* When 
 the driver's negligence has been the occasion of a col- 
 lision, and an injured passenger brings his action against 
 the person with whom the car collided, who was also at 
 fault, the negligence of the driver of the street car in which 
 the plaintiff rode cannot, as we have seen,® be imputed to 
 the plaintiff to bar his recovery.* 
 
 § 89. Walking upon a street railway track. — Inas- 
 much as he who walks upon the track of a steam railway 
 is usually a trespasser, going at his peril, and entitled only 
 to that small measure of care on the part of the railway 
 company that the law requires to be exercised even 
 toward mere trespassers or bare licensees, it has been 
 held in Louisiana that it is a trespass to walk upon the 
 track of a street railway laid in the thoroughfares of a 
 city or town,'' but this is denied in California.^ Under 
 the rule in Louisiana, one who is run down while walk- 
 ing upon a street car track, in the absence of wantonness 
 upon the part of the driver of the car, has no remedy, his 
 contributory negligence in walking upon the track being 
 
 ' Commonwealth v. Metropolitan Mass. 83; Suydam v. Grand St. R. 
 
 R. R. Co., 107 Mass. 236. R. Co., 41 Barb. 375 ; s. C. 17 Abb. Pr. 
 
 2 Mangam v. Brooklyn R. R. Co., 304 ; Thomp. on Neg. 398, §§ 3, 4, 
 
 38 N. Y. 455. where the cases are collected. 
 
 « Mentz V. Second Avenue Ji. R. » § 36, supra. . 
 
 Co., 2 Robt. 356 ; S. C. 3 Abb. App. « Bennett v. New Jersey R. R. & 
 
 Dec. 274. Trans. Co., 36 N. J. Law. 225 ; s. C. 
 
 * Pendrill v. Second Avenue R. R. 13 Am. Rep. 435 ; Thompkins v. Clay- 
 Co., 2 Jones & S. 481 ; s. C. 43 How. St. Ry. Co., Sup. Ct., CaL, January 
 Pr. 399; Oldfield v. New York, &c., 21, 1885, xix Am. Law Rev. 163, 318. 
 R. R. Co., 14 N. Y. 310; Cook v. ' Johnsons. Canal St. Ry. Co., 27 
 Metropolitan R. R.Co., 98 Mass. 361. La. Ann., 53; Childs v. New Orleans 
 But see Citizens' Street Ry. Co. w. St. Ry. Co., 33 Id. 154. See, also, 
 Carey, 56 Ind. 396; Bulger v. Albany, Hearn v. St. Charles St. Ry. Co., 34 
 &c.,R. R. Co.,42 N.Y. 459; Bolandw. Id. 160. 
 
 Missouri, &c., R. R. Co., 36 Mo. 484; « Shea v. Potrero, 44 Cal. 414; cf. 
 
 Alberts. Bleecker St. R.R.Co., 2 Daly, Robinson r/. Western Pacific R. R. 
 
 389; Lynam v. Union R. R. Co., 114 Co., 48 Id. 409. 
 
300 RULE AS AFFECTING HIGHWAYS. [§ 89, 
 
 held sufficient to prevent a recovery.^ But this is be- 
 lieved to be an untenable position. In no proper sense 
 can the pedestrian who walks in the roadway, as he has 
 a right to do, upon the street car track, be said to be a 
 trespasser. The street car company have no such exclu- 
 sive, proprietary right to any part of the street as entitles 
 them to warn the public off, or gives them a license to 
 abate any part of that ordinary care in going through the 
 streets with their vehicles which is justly required of other 
 persons who drive upon the highway. The steam rail- 
 road company owns the land upon which it runs its 
 trains, or, if it does not, its easement is an exclusive right 
 to use the land except at public crossings. The railroad 
 track is not a king's highway nor a part of a highway, 
 and for the railway the law very properly and justly 
 insists upon a clear track," not only as the right of the 
 railway company, but also from the most obvious consid- 
 erations of general convenience and policy. It were 
 safer to drive the car of Juggernaut through Broadway 
 than to abate anything from the strictness of this rule. 
 The franchise of the street railway company, on the other 
 hand, is a mere easement to use the highway in common 
 with the public generally. There is nothing exclusive 
 or proprietary in their ownership of this right or fran- 
 chise, and they have no higher right to use the street than 
 the humblest pedestrian.' Moreover, the reasons which 
 render it prudent and proper to hold persons who walk 
 upon railway tracks trespassers, are wholly wanting in 
 the case of persons walking in the highway upon a street 
 ■car track. The measure, or quantum of care and prudence 
 which will constitute "ordinary care," with respect to 
 street railways, on the part of those who have to do with 
 
 ' See the cases cited, supra. » Adolph v. Central, &c., R. R. 
 
 * Railroad Co. v. Norton, 24 Penn. Co., 65 N. Y. 554; Government St. 
 St. 465 ; s. C. 64 Am. Dec. 672. R. R. Co. v. Hanlon, 53 Ala. 70. 
 
§ Sg-] RULE AS AFFECTING HIGHWAYS. 301 
 
 them, is much less than is required to be exercised by- 
 persons who are brought in any way in connection with 
 steam railways.^ 
 
 The danger of accident from collision with street 
 cars is very trifling as compared with that from collision 
 with trains of cars running at a high rate of speed upon 
 a railway. Street cars never run very fast, and are easily 
 and almost instantly stopped.* What, therefore, might 
 be gross negligence as respects a steam railway, might be 
 perfectly prudent and perfectly proper to be done in 
 dealing with street cars. We must not, therefore, attempt 
 to apply to street railways the rules of law applicable to 
 steam railways. The cases are essentially different, and 
 the reason for the rule ceasing, the rule itself must also 
 cease. It is in accordance with this view that the courts 
 hold that the rule that one upon approaching a railway 
 crossing upon the highway, must look carefully up and 
 down the track before he attempts to cross, is not to be 
 applied to one who attempts to cross a street car track 
 upon the highway.* 
 
 Due care, that is to say, ordinary care, under the cir- 
 cumstances, must be exercised both in walking upon a 
 street railway track and also in attempting to cross it. 
 A failure to have done this on the part of one who brings 
 his action against the company for injuries received while 
 being upon the track, will be held a legal offset to the 
 negligence of the company's servants; but it is not 
 necessary in such an action for the plaintiff" to establish 
 his carefulness to the same extent as in a similar action 
 against a railway company. He need not show abso- 
 lutely that he looked carefully up and down the track 
 
 ' Thomp. on Carriers, 444, § 6. 114 Mass. 83 ; Mentz v. Second Ave- 
 
 2 Meesel v. Lynn, &c., R. R. Co., nue R. R. Co., 2 Robt. 356; s. c. 3 
 
 8 Allen, 234. Abb. App. Dec. 274; but see, also, 
 
 » Lynam v. Union, &c., R. R. Co., Kelly v. Hendrie, 26 Mich. 255. 
 
302 RULE AS AFFECTING HIGHWAYS. [§ 90. 
 
 before venturing upon it. It need only appear that he 
 was in the exercise of ordinary care, and he will not be 
 held a trespasser if he walks upon the track. He has 
 his common law right to walk there if he chooses , ^ and 
 wherever the servants of the street railway company fail 
 to exercise the ordinary care of any other person who 
 drives a vehicle upon the highway not to run over him, 
 the company is liable.^ 
 
 § 90. Alighting from or boarding moving street cars. 
 — It is well settled that it is not contributory negligence 
 in se for one to alight from or to board a moving street 
 car;* and here, again, we find the severity of the rule, as 
 applicable to steam railways, essentially relaxed.* " Ordi- 
 narily," says the Court of Appeals of New York, " it is 
 perfectly safe to get upon a street car moving slowly, 
 and thousands of people do it every day with perfect 
 safety. But there may be exceptional cases, when the 
 car is moving rapidly,^ or when the person is infirm and 
 clumsy, or is incumbered with children, packages or other 
 hinderances, or when there are other unfavorable condi- 
 tions, when it would be reckless to do so; and a court 
 might, upon undisputed evidence, hold, as matter of law, 
 that there was negligence in doing so. But in most 
 
 1 § 78, supra; and see Govern- learned Indiana cases upon this point, 
 
 ment St. R. R. Co. v. Hanlon, 53 Terre Haute, &c., R. R. Co. w. Buck, 
 
 Ala. 70. 81. 96 Ind. 346; s. c. 49 Am. Rep. 168; 
 
 * Vide the preceding section and Stoner v. Pennsylvania Co., 98 Ind. 
 cases there cited; and Thomp. on 384; s. c. 49 Am. Rep. 764; and §§ 
 Nag. 396, 397. 52, 53, supra. 
 
 ' Eppendorfw. Brooklyn City, &c., 'The Supreme Court of Texas, 
 
 R. R. Co., 69 N. Y. 19s ; s. C. 25 however, has held a charge that it is 
 
 Am. Rep. 171 ; Mettlestadt v. Ninth negligence to alight from a rapidly 
 
 Avenue R. R. Co.. 4 Robt. 377; moving railway train, while it is not 
 
 Rathbone v. Union R. R. Co., 13 R. negligence to alight from one moving 
 
 I. 709 ; People's Passenger R. R. Co. slowly, error and ground upon which 
 
 V. Green, 56 Md. 84. See, also, appellant may have a new trial Tex- 
 
 Diethickw. Balto., &c., R. R Co., 58 as, &c., R. R. Co. v. Murphy, 46 
 
 Id. 347. Texas, 356. 
 
 * See two recent and very full and 
 
§ gi'l RULE AS AFFECTING HIGHWAYS. 3O3 
 
 cases it must be a question for a jury. Here, there was 
 nothing exceptional, and no reason apparent why plaintiff 
 might not, with prudence, have expected to enter the 
 car with safety. He had the right to expect that the 
 speed of the car would continue arrested until he was 
 safely on the car. It was the act of the driver in letting 
 go the brake without notice, and thus suddenly giving 
 the car a jerk while plaintiff was getting upon it, that 
 caused the accident.^ " 
 
 In a recent Maryland case it appeared that, while the 
 plaintiff with several other passengers was riding upon 
 the front platform of the defendant's street car, the car 
 ran off the track, and the passengers upon the platform, 
 at the request of the driver, got off and assisted in replac- 
 ing the car on the track. When this was done, the 
 passengers proceeded to get upon the front platform 
 again, and the plaintiff, in trying to climb over the wire 
 enclosure at the front of the car, as the car was moving, 
 fell under the wheels, and his foot was crushed. He had 
 given up his seat in the car to an elderly lady and had 
 gone out upon the front platform because there was no 
 other seat for him inside. In this state of facts, the 
 question of the driver's negligence in starting the car 
 before his passengers had all safely gotten on again, and 
 of the negligence of the passenger in trying to board the 
 car in motion at the front platform, and in spite of the 
 railing which was three feet high and entirely enclosed 
 the platform, was held a proper one for the jury, the 
 court declining to say that the passenger's conduct was 
 negligent as matter of law.^ 
 
 § 91. Riding upon the platforms of street cars. — It is 
 an equally well established rule that the mere fact of rid- 
 
 » Eppendorf v. Brooklyn City, &c., » People's Passenger R. R. Co. v. 
 R. R. Co., 69 N. Y. 19s, supra. Green, 56 Md. 84. 
 
304 RULE AS AFFECTING HIGHWAYS. [§ 91- 
 
 ing on the platform of a street car is not conclusive evi- 
 dence of negligence.^ " The seats inside are not the only 
 places," says the Supreme Ju^dicial Court of Massachu- 
 setts, " where the managers expect passengers to remain ; 
 but it is notorious that they stop habitually to receive 
 passengers to stand inside till the car is full and then to 
 stand on the platforms till they are full, and continue to 
 stop and receive them after there is no place to stand ex- 
 cept on the steps of the platforms. Neither the officers 
 of these corporations, nor the managers of the cars, nor 
 the traveling public, seem to regard this practice as haz- 
 ardous, nor does experience thus far seem to require 
 that it should be restrained on account of its danger. 
 There is, therefore, no basis upon which the court can de- 
 cide upon the evidence reported that the plaintiff did not 
 use ordinary care" [he was injured while standing on 
 the platform]. " It was a proper case to be submitted 
 to the jury upon the special circumstances which ap- 
 peared in evidence."^ It is not negligent to take a 
 car upon which there is no place to ride except the 
 platform, and, having taken such a car, it is not negli- 
 gent to remain upon it, and to ride upon the platform ; 
 or, to express the same rule in another way, it is not 
 negligent to ride upon the platform from necessity, 
 when the alternative is to ride there or get oflf the 
 car.* Neither is it negligent in se to ride upon the 
 
 ' Fleck w. Union Ry. Co., 1 34 Mass. Mass. 239; Bums v. Bellefontaine, 
 
 481 ; Nolan v. Brooklyn City, &c., R. &c., R. R. Co., 50 Mo. 139; Spoon- 
 
 R. Co., 87 N. Y. 63; S. C. 41 Am. er v. Brooklyn City, &c., R. R. Co., 
 
 Rep. 345; Thirteenth St., &c., R. 54 N. Y. 230; S. C. 13 Am. Rep. 
 
 R. Co. V. Boudrou, 92 Penn. St. 475; 570; " Street Railways," 24 Alb. Law 
 
 S. C. 37 Am. Rep. 707 (and the note); Jour. 365 ; " Rights of street car plat- 
 
 Germantown Passenger R. R. Co. v. form passengers," by Eugene McQuil- 
 
 Walling, 97 Penn. St. 55 ; S. C. 37 Am. len, 20 Cent. Law Jour. 104. 
 
 Rep. 71 1 ; s. C. 2 Am. & Eng. Ry. Cas. » Meesel v. Lynn, &c., R. R. Co., 8 
 
 20 (and the note) ; Meesel v. Lynn, Allen, 234. 
 
 &c., R. R. Co., 8 Allen, 234; Ma- » Ginna v. Second Avenue R. R. 
 
 guire V. Middlesex R. R. Co., 115 Co., 67 N. Y. 596; Germantown Pas- 
 
§ gi'] RULE AS AFFECTING HIGHWAVS. 305 
 
 platform even when there is room inside the car ; ^ nor 
 is it necessarily negligence, being upon the platform, not 
 to take hold of the railing to prevent being thrown 
 off;" nor to stand down upon the steps of the plat- 
 form, if one holds on to the railing.* But to stand in 
 a dangerous position upon the platform, after an op- 
 portunity is offered the passenger of exchanging it for a 
 safer one, is contributory negligence.* The law does 
 not regard one platform of a street car with any more 
 favor than the other, and it is no more an act of negli- 
 gence to ride upon the front than upon the rear platform.* 
 But it is held that a rule which prohibits passengers from 
 riding upon the front platform is a reasonable rule, and 
 where a passenger, having been informed of the rule, vio- 
 lates it without some extenuating circumstances, he has 
 no remedy in case of injury by reason of the mere negli- 
 gence of the company's servants ; * as, for an example, 
 when one sits upon the steps of the front platform in 
 spite of the rule of the company and the warning of the 
 driver,^ or upon the window sill, with one foot upon the 
 
 senger R. R. Co. 'J'. Walling, 97 Penn. 'Fleck v. Union R. R. Co., 134 
 
 St. 55 ; Thirteenth St., &c., R. R. Co. Mass. 481 ; Huelsenkamp v. Citizens' 
 
 V. Boudrou, 92 Id. 475 ; S. C. 37 Am. R. R. Co., 34 Mo. 45 ; S. C. 37 Id. 567. 
 
 Rep. 707 ; Clark w. Eighth Avenue R. * Ward v. Central Park, &c., R. 
 
 R. Co., 36 N. Y. 135 ; s. c. 32 Barb. R. Co., 33 N. Y. 392; s. C. 11 Abb. 
 
 657; Augusta, &c., R. R. Co. v. Prac. (N. S.),4ii ; S. c. 42 How. Prac. 
 
 Renz, 55 Ga, 126; Hadencamp v. 289. 
 
 Second Avenue R. R. Co., i Sweeney ^ Meesel v. Lynn, &c., R. R. Co., 
 
 (N. Y. Super. Ct.), 490; Sheridan v. 8 Allen, 234; Maguire v. Middlesex 
 
 Brooklyn City, &c., R. R. Co., 36 N. R. R. Co., 115 Mass. 239; Nolan v. 
 
 Y. 39: Werle v. Long Island R. R. Brooklyn City, &c., R. R. Co., 87 N. 
 
 Co., 98 Id. 650. Y. 63; S. C. 41 Am. Rep. 345; Peo- 
 
 ' Burns v. Bellefontaine, &c., R. R. pie's Passenger R. R. Co. v. Green, 
 
 Co., 50 Mo. 139; Maguire v. Middle- 56 Md. 84; Germantown Passenger 
 
 sex R. R. Co., H5 Mass. 239. But R. R. Co. v. Walling, 97 Penn. St. 55; 
 
 see, contra, Andrews v. Capitol, &c.. Bums v. Bellefontaine, &c., R. R. Co., 
 
 R. R. Co., i Mackey, 137; S. C. 47 50 Mo. 139. 
 
 Am. Rep. 266; Solomon v. Central ' Wills v. Lynn, &c., R. R. Co., 
 
 Park, &c., R. R. Co., i Sweeney (N. 129 Mass. 351 ; Balto. City Passenger 
 
 Y. Super. Ct.), 298. R. R. Co., 30 Md. 224. 
 
 " Ginna v. Second Avenue R. R. ' Wigs v. Lynn, &c., R. R. Co., 
 
 Co., 67 N. Y. 596. supra, and cf. Solomon v. Central 
 
 30 
 
3o6 
 
 RULE AS AFFECTING HIGHWAYS. 
 
 [§9i. 
 
 iron rail of the dash-board upon the front platform.^ And, 
 in a recent case the Supreme Court of Michigan held it 
 contributory negligence, and intimates that it is evidence 
 of exceeding stupidity and folly for one, at the invitation 
 of the driver, when there is plenty of room unoccupied 
 inside the car, to ride upon the front platform and sit on 
 the driving bar.^ 
 
 Park, &c., R. R. Co.. I Sweeney (N. 
 Y. Super. Ct.), 298 ; Clark v. Eighth 
 Ave. R. R. Co., 36 N. Y. 135. 
 
 1 Heckrott v Buffalo St. R. R. Co.. 
 Super. Ct. of Buffalo, Nov., 1883, 13 
 Am. Law Record, 295. 
 
 2 Downey v. Hendrie, 46 Mich. 
 498, re-reported for substance 41 Am. 
 Rep.347 (in the note). The court said ; 
 " The point is understood as being, 
 that granting the driving bar to have 
 been, as the plaintiff knew, a danger- 
 ous seat, and, also, admitting that the 
 fact of his occupying it was a proximate 
 contributory cause of his injury, yet, as 
 his sitting there was at the driver's in- 
 vitation, it ought not to be reckoned as 
 contributory negligence. There is no 
 doubt that it has been laid down as a 
 rule that an assignment of the passen- 
 ger by the carrier to a position of dan- 
 ger may, in case of injury, estop the car- 
 rier from setting up the occupation of 
 that position as contributory negli- 
 gence. But the rule is plainly not one 
 of universal application. Regard must 
 
 . be had to the passenger's capacity to 
 lookout for himself; to the opportu- 
 nity there may be to get a safer posi- 
 tion ; to the distinctness, certainty and 
 extent or degree of the peril, and so 
 on. Take the case of a child, and the 
 case of a man every way qualified to 
 take care of himself ; the case where 
 the position given seems tolerably safe, 
 and no better perceived ; and the case 
 where it is manifestly one full of dan- 
 ger, and a safe one is known which is 
 equally accessible. It would be very 
 unreasonable to apply the rule equally 
 to all. May the ordinary passenger, 
 with his eyes open, and with abundant 
 accommodations before him which are 
 safe, accept an invitation from the car- 
 
 rier to ride on the cow-catcher, and 
 then, if injury arise from it, be allowed 
 to set up the invitation as a legal an- 
 swer to the charge of contributory 
 negligence ? To conclude that he 
 might, would be to permit a person of 
 full capacity to exempt himself from 
 the duty and responsibility appertain- 
 ing to him as a moral being, and. in 
 substance, to stultify himself in order 
 to cast a liability on another. 'Judges 
 cannot denude themselves of the>< 
 knowledge of the incidents of railway 
 traveling which is common to us all.' 
 [Siner v. Great Western Ry. Co.. L. 
 R. 4 Exch. 123 ; Dublin, &c., Ry. Co. 
 w. Slattery, 3 App. Cas. 1 1 55; Lake 
 Shore, &c., R. R. Co. v. Miller, 25 
 Mich. 274]. And. in the example 
 putrthe negligence would be so ob- 
 vious, and its commission so palpably 
 and, certainly, inexcusable, that a court 
 would not be justified in treating the 
 question of the passenger's responsibil- 
 ity as an open one. A direct charge 
 would be called for. Other cases may 
 be supposed, where, from the nature of 
 the circumstances, a blind acceptance 
 of the carrier's suggestion, however 
 hazardous, would not so clearly reveal 
 the passenger's disregard of that pri- 
 mary duty, which rests on every one, to 
 exert his own will and judgment to 
 guard against needless perils, as to 
 justify the judge in taking the matter 
 from the jury No doubt the riding on 
 a cow-catcher would, to ordinary ap- 
 prehension, if not in fact, be an ex- 
 posure to consequences more serious 
 than any at all probable to arise from 
 riding on the driving bar of a street 
 car in the way in which the plaintiff 
 rode on this occasion ; but the unfit- 
 ness of the situation, and the fact 
 
§ 92.] RULE AS AFFECTING HIGHWAYS. 307 
 
 In Andrews v. Capitol, &c., Railroad Co.,^ it is held 
 that if there is standing room inside a street car, with 
 straps for holding on, it is negligent to ride upon the 
 platform ; but such a rule is against the current of au- 
 thority. So, also, it has been held that where a woman 
 stands up in a street car she must, whenever it is possible, 
 hold on to the straps that hang from the ceiling, and that 
 not to do so when she might, is such negligence on her 
 part as will prevent a recovery, in case she suffers an in- 
 jury which such a course might have prevented.^ While, 
 at the other extreme, we find it held in New York that it 
 is not negligent in a passenger to leave his seat in a rail- 
 way train before the cars stop, upon approaching his des- 
 tination, on the ground that he did as passengers usually 
 do.* 
 
 § 92. Passenger's hand or arm outside of the car win- 
 dow. — Where a passenger in a street car puts his arm, or 
 elbow, outside of the car window, voluntarily, and without 
 any qualifying or extenuating circumstances impelling 
 him to it, it is held, in Pennsylvania, to be the duty of 
 the court to declare the act negligence, as matter of law.* 
 But in an earlier case the same court held, where one, in 
 riding upon the defendant's street car with his arm ex- 
 tending out of an open window, was struck by a passing 
 load of hay and his arm broken, that if the injury was 
 
 that it involves great risk of some Co., 53 N. Y. 156; cf. Nichols v. 
 
 injury, more or less severe, and is. Sixth Ave. R. R. Co., 38 Id. 131 ; 
 
 therefore, one of extreme danger, is Willis v. Long Island R. R. Co., 34 
 
 just as conspicuous in the one case as Id. 670. And see, Zemp v. Wilming- 
 
 in the other." Downey v. Hendrie, ton, &c.. R. R. Co., 9 Rich. (Law), 
 
 supra. Compare Camden. &c., R. R. 84; S. C. 64 Am, Dec. 763, an early 
 
 Co. V. Hoosey, 99 Penn. St. 492 ; S. C case upon railroad law, wherem it is 
 
 44 Am. Rep. 120. held not negligent, as matter of law, 
 
 ' 2 Mackey, 137 ; S. C. 47 Am. Rep. for one to ride upon the platform of a 
 
 366. railway train. 
 
 * Whipple V. West Phila., &c., St. * People's Passenger Railway Co. 
 
 R. R. Co, II Phila. 345. v. Lauderbach, Sup. Ct., Penn., xix 
 
 » Wylde V. Northern, &c., R. R. Am. Law Rev. 163. 
 
308 RULE AS AFFECTING HIGHWAYS. [§ 93. 
 
 caused by the contributory negligence of the passenger, 
 or by the sole negligence of the driver of the wagon, 
 there should be no recovery against the company, and 
 the jury below, having been allowed to find that the pas- 
 senger was without fault, the case turned upon the negli- 
 gence, or freedom from negligence, of the street car 
 driver.^ 
 
 In Minnesota, where a passenger on a street car sat 
 down and placed his hand on the window sill, with his 
 fingers outside, and his hand was injured by coming in 
 contact with some planks piled within an inch of the car 
 by the city authorities, to be used in constructing a sewer 
 underneath the track, it was held that the question of the 
 passenger's contributory negligence was for the jury,* 
 And in Louisiana it is held not negligent, as matter of 
 law, for a passenger to allow his arm to project from the 
 window of a street car " a few inches," in a case in which 
 it appears that the passenger's arm so exposed was struck 
 by a passing car, belonging to the same company, as the 
 cars met each other upon a curve — it being decided, also, 
 that it is negligent for a street railway company to have 
 two tracks laid so near together that such an accident can 
 happen,* 
 
 § 93- -^^^^ passengers and trespassers upon street 
 cars. — When a newsboy is allowed free access to the cars 
 for the purpose of selling his papers to the passengers, he 
 is held to enjoy that license with its accompanying perils. 
 He is not a passenger, and if injured by the mere care- 
 lessness or neglect of the company's servants, he has no 
 remedy against the company,* So, also, when a passen- 
 
 1 Federal St. R. R. Co. v. Gibson, road Co., 34 La. Ann. 139; S. c. 44. 
 9° P?""- St. 83. Am. Rep. 419; Germantown Passen- 
 
 2 Dahlljerg v. Minnesota St. R. R. ger R. R. Co. v. Brophy, loq Penn. 
 Co., Sup. Ct., Minn., Jan. 21, 1885, xix St. 38. 
 
 Am Law Rev. 332. 4 Fleming v. Brooklyn City, &c., 
 
 ' Summers v. Crescent City Rail- R. R. Co., i Abb. New Cas. 433. 
 
§ 93-J RULE AS AFFECTING HIGHWAYS. 3O9 
 
 ^er has left the car and is going about his business, the 
 relation of carrier and passenger is thereby terminated ; 
 and toward such a person the duty of the company is not 
 that of extraordinary diligence, as during the continuance 
 of that relation, but only such care as the law requires 
 two persons, each lawfully in the highway, to exercise 
 toward each other.^ Drivers and conductors of street 
 cars have no authority, plainly, to carry passengers free, 
 but when they suffer or invite young children to ride 
 upon the cars, without collecting fare from them, and 
 these children are negligently injured upon the car, it is 
 generally held that the company is liable, and, in the ab- 
 sence of contributory neglect, an action may be main- 
 tained.^ 
 
 A street car driver or conductor, in Massachusetts, who 
 performs his ordinary duties on Sunday, can maintain no 
 action for an injury sustained by reason of a collision with 
 a car of another company while so employed.^ Neither 
 can one in that State who rides in a street car on Sunday, 
 for the purpose of making a social visit, recover damages 
 from the street car company for an injury received in con- 
 sequence of their neglect.* These decisions would not, 
 however, be followed elsewhere.^ 
 
 See, also, Duff v. Allegheny R. R. R. Co., 12 Hun, 435 ; Philadelphia, 
 
 Co., 91 Penn. St. 458; s. C. 36 Am. &c., R. R. Co. v. Hassard, 75 Penn. 
 
 Rep. 675. St. 367 ; East Saginaw, &c., City R. 
 
 1 Piatt V. Forty-second St. R. R. R. Co. v. Baker, 27 Mich. 503. See, 
 
 Co., 2 Hun, 124. See, also, Merrill v. also, Abell v. Western, &c., R R. 
 
 Eastern Railroad Co., Sup. Jud. Ct., Co., Ct. of App., Md., April 22, 1885, 
 
 Mass., Holmes, J., 1885, 31 Alb. Law xix Am. Law Rev. 498. and §§ 58, 69, 
 
 Jour. 503. 7Q, supra. Compare McDonough v. 
 
 « Brennan v. Fairhaven, &c., R. R. Metropolitan Ry. Co., 137 Mass. 210. 
 
 Co, 45 Conn. 284; S. C 29 Am. Rep. ' Day v. Highland St. R. R. Co., 
 
 •678; Caldwell v. Pittsburgh, &c., R. 135 Mass. 113; S. C. 46 Am. Rep. 
 
 R. Co., 74 Penn. St. 421 ; Wilton v. AA7- 
 
 Middlesex R. R. Co., 107 Mass. 108 ; * Stanton v. Metropolitan Railroad 
 
 S. C. 9 Am. Rep. 11 ; S. C. 125 Mass. Co., 14 Allen, 485. 
 
 J30; Day V. Brooklyn City, &c., R. " §§ 61, 81, supra. 
 
CHAPTER Vn. 
 
 THE RULE AS IT QUALIFIES THE LAW OF MASTER AND 
 SERVANT— OR EMPLOYER AND EMPLOYED OF EVERY 
 CLASS. 
 
 §94- 
 95- 
 96. 
 
 97. 
 98. 
 
 99- 
 
 100. 
 
 101. 
 
 102. 
 103. 
 104. 
 105. 
 
 106. 
 107. 
 to8. 
 109. 
 no. 
 
 III. 
 
 112. 
 
 113. 
 
 114. 
 
 115- 
 116. 
 117. 
 118. 
 
 Servant's own contributory negli- 
 gence, a bar. 
 
 Master's individual neglect, a 
 ground for an action. 
 
 So, when the master's negligence 
 combines with that of a co-serv- 
 ant in producing the injury. 
 
 Respondeat superior. 
 
 The exception to the rule of respon- 
 deat superior. 
 
 Later English cases following 
 Priestley v. Fowler. 
 
 The United States rule — Murray 
 V. South Carolina Railway Co. 
 
 Farwell v. Boston & Worcester 
 R. R. Co. 
 
 The rule stated. 
 
 Reason for the rule. 
 
 The modification in Kentucky. 
 
 Leading authority in Kentucky. 
 Louisville, &c., R. R. Co. v. 
 Collins. 
 
 The rule in Illinois. 
 
 The rule in Tennessee. 
 
 Who are fellow-servants. 
 
 The rule stated. 
 
 When the servant is deemed the 
 agent of the master, or his vice- 
 principal, the rule of non-liabili- 
 ty is qualified. 
 
 Applications of this doctrine. 
 
 Test whether one is a mere serv- 
 ant or the representative of the 
 master. 
 
 Should there be one rule in this 
 particular applicable to corpora- 
 tions, and another less stringent 
 one applicable to other hirers of 
 labor ? 
 
 Chicago, Milwaukee, and St. Paul 
 Ry. Co. V. Ross. 
 
 What is common employment. 
 
 Illustrations. 
 
 Servants of different masters. 
 
 The rule stated. 
 
 5 1 19. As between different railway cor- 
 porations having running connec- 
 tions. 
 
 120. As to volunteers. 
 
 121. Partnerships and receivers as em- 
 
 ployers. 
 
 122. The obligation of the master. 
 
 123. Defective, dangerous, or unfit ma- 
 
 chinery appliances, toolSjOr prem- 
 ises. 
 
 124. The master's duty as to machinery^ 
 
 &c., a continuing duty. 
 
 125. Master must provide safe and. 
 
 good, but not the safest and best 
 appliances. 
 
 126. Master not a guarantor of the safety 
 
 or sufficiency of his appliances. 
 
 127. Incompetent and unfit employees. 
 
 128. The duty as to servants also a con- 
 
 tinuing duty. 
 
 129. The master not held to warrant 
 
 the faithfulness or capacity of his. 
 servants. 
 
 130. The master may act through an 
 
 agent and become responsible 
 for his acts. 
 
 131. The rule as to minor servants. 
 
 132. Where the master orders the serv- 
 
 ant into danger, or into a service^ 
 which he did not contract to- 
 perform. 
 
 133. The patent and latent dangers of 
 
 the employment. 
 
 134. Overhead railway bridges, depot 
 
 roofs, &c. 
 
 135. Injuries to train-men in coupling 
 
 cars. 
 
 136. Knowledge on the part of the em- 
 
 ployer. 
 
 137. The obligation of the servant. 
 
 138. He must possess a fair measure of 
 
 skill for the service he undertakes, 
 and must inform himself, at the 
 outset, of the duties and dangers, 
 peculiar to his work. 
 
§§ 94, 95.] 
 
 MASTER AND SERVANT. 
 
 311 
 
 139. His knowledge when a bar. 
 
 140. When the servant is held to have 
 
 waived the danger of defect. 
 
 141. Servant must obey rules estab- 
 
 lished to promote his safety. 
 
 142. Liability of a servant to a fellow- 
 
 servant. 
 
 143. Statutory modifications of the rule 
 
 which exempts a master from 
 liability to one servant for the 
 
 negligent wrong-doing of a co- 
 servant. 
 § 144. Should the employee be allowed 
 to make a contract releasing his 
 employer from the liability im- 
 posed by these statutes. 
 145. The laws of other countries as to 
 the liability of an employer for 
 injuries to one employee caused 
 by the carelessness of a fellow- 
 employee. 
 
 § 94. Servant's own contributory negligence a bar. — 
 The rule of l^w that a plaintiff, in order to maintain his 
 action for damages for an injury occasioned by the negli- 
 gence of another, must himself be free from contributory 
 negligence is, when the action involves only the individ- 
 ual neglect of the servant and his employer, in no way af- 
 fected by the consideration that the relation of master and 
 servant subsists between the parties. If the servant is to 
 recover damages, in such a case, from his master, he, like 
 any other plaintiff, comes into court under the legal obli- 
 gation of showing, or having it sufficiently appear, that 
 his own negligence has contributed in no legal sense to 
 the injury. His own contributory fault will defeat him 
 in an action against his employer just as it would in an 
 action against any one else.^ 
 
 § 95. Master's individual neglect a ground for an ac- 
 tion. — Every man is liable for his own torts and breaches 
 of contract, and a master to his servant neither less nor 
 more than to other persons. This is, like the preceding 
 proposition, elemental law. If a servant is injured 
 through the direct negligence of his master, as where the 
 
 » Hubgh V. New Orleans, &c., R. 
 R. Co., 6 La. Ann. 495; S. C 54 Am. 
 Dec. 565 ; Brown v. Maxwell, 6 Hill 
 (N. Y.), 592; S. C. 41 Am. Dec. 771 ; 
 Abend v. Terre Haute, &c., R. R. 
 Co., Sup. Ct., 111., 1884, 19 Cent. L. 
 J. 350; McKinne v. California, &c., 
 R, R. Co., Sup. Ct., Cal., 1884, 5 Pac. 
 
 Rep. 505 ; Galveston, &c., R. R. Co. 
 V. Drew, 59 Texas, 10; s. C. 46 Am. 
 Rep. 261 ; Wright v. Rawson, 52 
 Iowa, 329; S. C. 35 Am. Rep. 275; 
 Cowles V. Richmond, &c., R. R. Co., 
 84 N. C. 309, and the cases generally 
 hereinafter cited. 
 
312 MASTER AND SERVANT. [§ 95. 
 
 master is present giving orders or superintending the 
 work, the master is answerable in damages to the same 
 extent as he would be if the relation of master and serv- 
 ant did not subsist. And the master when taking a hand 
 and engaging in a common labor with the servant does 
 not thereby lose his position as an employer, or become 
 a fellow-servant in such a legal sense that the servant im- 
 pliedly undertakes to assume the risk of injury from his 
 negligence when so jointly engaged.^ 
 
 " The doctrine that a servant on entering the service 
 of an employer takes on himself, as a risk incidental to 
 the service, the chance of injury arising from the negli- 
 gence of fellow-servants engaged in the common employ- 
 ment, has no application in the case of the negligence of 
 an employer. Though the chance of injury from the 
 negligence of fellow-servants, may be supposed to enter 
 into the calculation of a servant in undertaking the 
 service, it would be too much to say that the risk of dan- 
 ger from the negligence of a master, when engaged with 
 him, in their common work, enters in like manner into 
 his speculation. From a master he is entitled to expect 
 the care and attention which the superior position, and 
 presumable sense of duty of the latter ought to com- 
 mand. The relation of master and servant does not the 
 less subsist because, by some arrangement between the 
 joint masters, one of them takes on himself the functions 
 of a workman. It is a fallacy to suppose that on that ac- 
 count the character of master is converted into that of a 
 fellow-laborer." ^ 
 
 ' Ryan v. Fowler, 24 N. Y. 410; 2 Crompton, J., in Ashworth v. 
 
 Leonard ». Collins, 70 Id. 93 ; Ander- Stanwix, cited above. See, also, as in 
 
 son V. New Jersey Co., 7 Robt. 61 1 ; point, Flike v. Boston, &c., R. R. Co., 
 
 Keegan v. Kavanagh, 62 Mo. 230; 53 N. Y. 550; s. C. 13 Am. Rep. 545; 
 
 Ashworth w. Stanwix, 3 El. & El. 701 ; Shear. & Redf. on Neg.. § 89; Or- 
 
 s. c. 7 Jur. (N. S.) 467 ; 30 L. J. (Q. mond v. Holland, El., Bl. & El. 102; 
 
 B.) 183; 4 L. T. (N. S.) 85; Roberts Baker w. Allegheny R.R,. Co., 95 Penn. 
 
 V. Smith, 2 Hurl. & N. 313. St. 211 ; S. c. 40 Am. Rep. 634; Gil- 
 
§§96,97-] MASTER AND SERVANT. 313 
 
 § 96. So when the master's negligence combines with 
 that of a co-servant in producing the injury. — Whenever 
 the negligence of the master, united to the negligence of 
 a fellow-servant, contributes to the injury, the servant in- 
 jured thereby may recover from the common employer. 
 The servant will not be held to have taken any chances 
 of negligence on the part of his master. It is believed 
 that no case has gone so far as to hold that where such 
 combined negligence contributes to the injury the servant 
 may not recover. It would be both impolitic and unjust 
 to allow an employer, under these circumstances, to evade 
 the penalty of his misconduct in neglecting to provide 
 for the security of his servant. • Contributory negligence 
 in order to defeat a right of action in such a case must 
 be solely the negligence of the party injured, or the neg- 
 ligence of a co-employee unrriixed with any negligence or 
 default upon the part of the common employer.^ 
 
 § 97. Respondeat superior. — A well-known principle 
 of law, which makes every man liable for his own wrong- 
 doing or breaches of contract whenever they have caused 
 actual or legal damage, holds him liable also for those of 
 his duly authorized agent so long as that agent acts with- 
 in the scope of his authority. This is the doctrine of re- 
 spondeat superior. The agent is the alter ego, doing the 
 bidding and guided by the mind of the principal for whose 
 misfeasances, inattentions and negligences, in the line of 
 his duty, the principal is held liable. The reason of the 
 
 man z/. Eastern R. R. Co., 10 Allen, v. Taylor, 10 Gray, 274; Booth v. 
 
 233; S. C. 13 Id. 433 ; Ford v. Fitch- Boston, &c., R. R. Co., 73 N. Y. 38; 
 
 burg R. R. Co., no Mass. 240; S. C. s. c. 29 Am. Rep. 97 ; Hayes w.West- 
 
 14 Am. Rep. 598; Holden w. Id., 129 em R. R. Co., 3 Cush. 270; Stetler' 
 
 Id. 268, 273; Harkins v. Standard v. Chicago, &c., R. R. Co., 46 Wis. 
 
 Sugar Refinery, 122 Id. 400. 405. 497 ; s. c. 29 Am. Rep. 102 (note); 
 
 » Paulmier v. Erie Ry. Co., 34 N. Durgin v. Munson, 9 Allen, 396; Cone 
 
 J. (Law), 151; Clark w. Soule, 137 w. Delaware, &c., R. R. Co., 81 N.Y. 
 
 Mass. 380; Crutchfield v. Richmond, 206; S. C. 37 Am. Rep. 491. 
 &c., R. R. Co., 76 N. C. 320; Cayzer 
 
314 MASTER AND SERVANT. [§ 97. 
 
 rule is nowhere clearly stated, and speculative and philo- 
 sophical writers have found much fault with it. But, 
 whether based upon a sound reason or not, it is found in 
 the Roman law ; has been crystallized into a maxira,^ 
 and from the days of Charles II. has been the unchal- 
 lenged rule of the common law of England.* The first 
 recorded reference to it is in the case of Michael v. Alles- 
 tree.* It appears in this old case that a servant was sent 
 by his master to Lincoln's Inn Fields, a place where peo- 
 ple are always going about, with two ungovernable horses 
 attached to a coach ; that the servant then drove them to 
 make them tractable and fit them for the coach, and that 
 the horses, because of their ferocity, ran upon the plaint- 
 iff and hurt and grievously wounded him. Upon which 
 facts shown, the master, as well as the servant, was held 
 Mable in case. Another early case announcing the doc- 
 trine is Turberville v. Stampe.* Following these earlier 
 authorities is a great army of adjudications both in this 
 country and in England enforcing and establishing the 
 rule. It is beyond dispute,^ and " a rule," says Judge 
 
 ' " Q"' facit per alium facit per length the question of a master's lia- 
 
 J^." bility in these classes of cases ; Corri- 
 
 * Austin's Lectures on Jurispru- ganz/. Union Sugar Refinery, 98 Mass. 
 dence (3d London edition), 513; Doc- 577; Bryant v. Rich, 106 Id. 180; S. 
 tor and Student, Dial. 2, ch. 42; c. 8 Am. Rep. 311 ; Sherley w. Bil- 
 Holmes' Common Law, Lect. L lings, 8 Bush. 147 ; s. C. 8 Am. Rep. 
 
 » 2 Levintz, 172; s. C. sub nom., 451 ; Joslin v. Grand Rapids Ice Co., 
 
 Michell V. AUestry, i Vent. 295; sub 50 Mich. 516; S. C. 45 Am. Rep. 54; 
 
 nom., Mitchil v. Alestree, 3 Keb. 650. Allison v. Western, &c., R. R. Co., 64 
 
 * I Lord Raym.264 (by Lord Holt). N. C. 382; Snyder v. Hannibal, &c., 
 « Limpus V. London Omnibus Co , R. R. Co., 60 Mo. 413 ; Tuel v. Wat- 
 
 I Hurl. & C. 526; Bums v. Poulson, son, 47 Vt. 634; Mitchell v. Robin- 
 L. R. 8 C. P. 563; s. C. 29 L. T. (N. son, 80 Ind. 281 ; s. C. 41 Am. Rep. 
 S.) 329; Patten v. Rea, 2 C. B. (N. S.) 812 ; Blake v. Ferris, 5 N. Y. 48; S. 
 606; Booth V. Mister, 7 Car. & P. 66; c. 55 Am. Dec. 304; Thomas v. Win- 
 Sadler V. Henlock, 4 El. & Bl. 570; Chester, 6 N. Y. 397 ; S. C. 57 Am. 
 S. C. 24 L. J. (Q. B.) 138; I Jur. (N. Dec. 455; Lannen v. Albany Gas- 
 S.) 677 ; Quarman v. Burnett, 6 Mee. light Co., 46 Barb. 264 ; s. c. 44 N. Y.. 
 & W. 499; Ware v. Barataria, &c., 459; Courtney v. Baker, 60 N. Y. i; 
 Canal Co., 15 La. 169; s. C. 35 Am. s. C. 5 Jones & S. 249; Thorpe v. 
 Dec. 189, and the note in wnich Mr. New York, &c., R. R. Co., 76 N. Y. 
 Freeman has considered at much 406; Vogd v. Mayor, &c., of New 
 
§98.] MASTER AND SERVANT. 315 
 
 Thompson, " so plain and easy of application that it could 
 not be made clearer by illustration."^ 
 
 § 98. The exception to the rule of respondeat supe- 
 rior. — In 1837 the great case of Priestley v. Fowler^ was 
 decided, being the first recorded exception in the English 
 law to the ancient rule of respondeat superior. It was 
 decided by Lord Abinger without any reference to the 
 earlier doctrine, but it constitutes a clear exception, from 
 which has flown in a copious flood all the modern law 
 as to fellow-servants and a common employment. It is 
 not extravagant to say that this decision in its influence 
 upon subsequent jurisprudence is second to no adjudica- 
 tion to be found in the reports. No other reported case 
 has changed the current of decision more radically than 
 this. All subsequent common law report books contain 
 refinements upon the doctrine, here for the first time 
 announced, that the superior may not under given condi- 
 tions be held to respond for the tortious or negligent 
 acts of his agent. The case was as follows : A butcher 
 sent one of his men to deliver meat on a wagon which 
 had been loaded by another employee, but loaded too 
 heavily. The wagon broke down and the man's thigh 
 was broken. His lordship decides that the butcher was 
 not liable for the injury. The ground of the decision is 
 not plain. It does not appear whether the wagon broke 
 down because it was not in proper condition for the 
 journey, or because it had been carelessly overloaded, and 
 the opinion does not say whether the butcher is not 
 liable because the law does not imply a contract of war- 
 ranty as to the safe condition of the wagon on the part 
 of the employer, or because the law does not imply a 
 
 York, 92 Id. 17; Shea v. Reems, 36 Hill on Torts, 407; Shear. & Redf.on. 
 
 La. Ann. 969; Cooley on Torts, 533 ; Negf., § 59; Wharton on Neg., § 157. 
 
 Wood on Master and Servant, § 279 ; * Thomp. on Neg. 885. 
 
 Smith on Master and Servant, 130; * 3 Mees. & W. i. 
 
3l6 MASTER AND SERVANT. [§ 99. 
 
 contract to indemnify against the negligence of his ser- 
 vant. No authorities are cited in support of the position 
 taken, but several instances are loosely suggested, as if 
 by way of analogy, with the skill which advocates possess 
 in suggesting analogies, several of which are quite as 
 applicable to other relations as to the relation of master 
 and servant. 
 
 § 99. Later English cases following Priestley v. 
 Fowler. — The question arose again in England, in 1850, 
 in the suit of Hutchinson v. The York, New Castle and 
 Berwick Railway Company.^ This case, although Priest- 
 ley V. Fowler is the earlier authority, has been regarded 
 the leading English case, properly speaking, upon the 
 subject. Here it is explicitly laid down that there is no 
 implied contract of indemnity between employer and 
 employed, but an implied contract on the part of the 
 servant to run the ordinary risks of the service. In the 
 judgment, Alderson, B., says : "The difficulty is as to the 
 principle applicable to the case of several servants em- 
 ployed by the same master, and injury resulting to one 
 of them from the negligence of another. In such a case 
 we are of opinion that the master is not, in general, 
 responsible when he has selected persons of competent 
 care and skill." He continues, giving the reason for this 
 rule, as follows : " They have both engaged in a common 
 service, the duties of which impose a certain risk on each 
 of them, and in case of negligence on the part of the 
 other, the party injured knows that the negligence is 
 that of his fellow-servant and not of his master," which 
 comes only something short of assigning as a reason for 
 the rule that when he is hurt he knows exactly who hurt 
 him. " He knew," continued the learned Baron, " when 
 
 I 5 Exch. 343: s. C. 14 Jur. 837; 6 Eng. Rail. Cas. 588; 19 L. J. 
 (Exch.) 296. 
 
§ lOO.] MASTER AND SERVANT. 317 
 
 he engaged in the service that he was exposed to the 
 risk of injury, not only from his own want of skill and 
 care, but also from the want of it on the part of his 
 fellow-servant, and he must be supposed to have con- 
 tracted on the terms that, as between himself and his 
 master, he would run the risk." This is an implied con- 
 tract ; "a risk," he says, "which Hutchinson must be 
 taken to have agreed to run when he entered into the 
 defendant's service." In a single sentence, in concliision, 
 his lordship defines both the principle and the terms of 
 the implied contract, as follows: "The principle is, that 
 a servant, when he engages to serve a master, undertakes, 
 as between himself and his master, to run all the ordinary 
 risks of the service, and this includes the risk of negli- 
 gence on the part of a fellow-servant, whenever he 
 is acting in discharge of his duty as servant of him who 
 is common master of both." This statement of the rule 
 has been accepted in the English courts as the law in 
 point, and a long line of authorities, from 1850 to the 
 passage of the "Employers' Liability Act," in 1880, are 
 found in the reports, affirming and reiterating the doc- 
 trine.^ 
 
 § 100. The United States rule. Murray v. South 
 Carolina Railroad Company. — The first case in this 
 
 » Wigmore v. Jay, S Exch. 354 ; i Pat. Sc. App. 796 ; Bartonshill 
 
 S. C. 19 L. J. fExch.) 300; Seymour Coal Zo.v. McGuire, 3 Macq. 300; 
 
 V. Maddox, 16 Q. B. 326; S. C. 20 L. S. C 4 Jur. (N. S.) 772 ; i Pat. Sc. 
 
 J. (Q. B.) 327 ; Skipp v. Eastern App. 785 ; Wilson v. Merry, L. R. I 
 
 Counties^y.Co., 9Exch. 223; S.C.23 Sc. & Div. App. Cas. 326; Woodley 
 
 L. J. (Exch.) 23 ; Couch v. Steel, 3 v. Metropolitan Ry. Co., 2 Exch Div. 
 
 El. & Bl. 4:02; S. C. 18 Jur. 575; 23 384; Tarrant v. Webb, 18 C. B. 797; 
 
 L. J. (Q. B.) 121. (In this case the s. C. 25 L. J. (N. S.) C. P. 263; 
 
 doctrine is applied to the relation of Conway v. Belfast, &c., Ry. Co;, 11 
 
 ship owner and seaman.) Brydon v. Ir. C. L. 353 ; Griffiths v. London 
 
 Stewart, 2 Macq. 30; s. C. I Pat. Sc. Docks, &c., Co., 50 L. T. (N. S.) 
 
 App. 447; S. C. sub nom.. Marshall 755; S. C. 12 Q. B. Div. 493; af- 
 
 V, Stewart, 33 Eng. Law & Eq. I ; firmed in the High Court of Appeal, 
 
 Bartonshill Coal Co. v. Reid, 3 Mac- June 24, 1884. 
 Queen, 266 ; S. C. 4 Jur. (N. S.) 767 ; 
 
3l8 MASTER AND SERVANT. [§ lOO. 
 
 country involving the rights of employees in this respect, 
 as against their employers, was Murray v. South Carolina 
 R. R. Company,^ decided in 1841. Priestley v. Fowler 
 had bepn decided three years before, but Mr. Justice 
 Evans, of the South Carolina Court, seems not to have 
 had Lord Abinger's opinion before him. In his opinion, 
 however, in this case, Judge Evans comes to the same 
 conclusion as that reached in Priestley v. Fowler, by an 
 essentially similar process of reasoning. The case is as 
 follows : A fireman, upon a locomotive owned and oper- 
 ated by the defendant corporation, was injured while 
 engaged in the discharge of his duty by reason of the 
 engine on which he was employed being thrown from 
 the track, in consequence of the negligent and careless 
 conduct of the engineer who had charge of the engine, 
 and who refused to lessen the speed or stop the engine 
 after his attention had been called to the obstacle on the 
 track which occasioned the accident. These facts pre- 
 sented fairly the question, whether the railroad company 
 was liable to one servant for an injury arising from the 
 negligence of another servant, and the court held that in 
 such a case the servant could not recover. Judge Evans 
 argues : " Is it incident to this contract," (that between 
 plaintiflF and defendant, as master and servant), ''that 
 the company should guarantee him against the negli- 
 gence of his co-servants ? It is admitted he takes upon 
 himself the ordinary risks of his vocation ; why not the 
 extraordinary ones? Neither, are within his contract, 
 and I can see no reason for adding this to the . already 
 known and acknowledged liability of a carrier, without a 
 single case or precedent to sustain it. The engineer no 
 more represents the company than the plaintiff. Each 
 in his several department represents his principal. The 
 
 I McMillan's Law, 385 ; s. C. 36 Am. Dec. 268. 
 
§ lOI.] MASTER AND SERVANT. 3X9 
 
 regular movement of the train of cars to its destination, 
 is the result of the ordinary performance by each of his 
 several duties. If the fireman neglects his part, the 
 engine stands still for want of steam ; if the engineer 
 neglects his, everything runs to riot and disaster. It 
 seems to me, it is on the part of the several agents, a 
 joint undertaking, where each one stipulates for the per- 
 formance of his several part. They are not liable to the 
 company for the conduct of each other. Nor is the com- 
 pany liable to one for the misconduct of another, and, 
 as a general rule, I would say that, where there was no 
 fault in the owner, he would be liable only for wages to 
 his servants, and so far has this doctrine been carried 
 that in the case of seamen, even wages are forfeited if 
 the vessel be lost and no freight earned." ^ This case was 
 followed soon after, in Massachusetts, in the case of — 
 
 §101. Farwell v. Boston & Worcester R. R. Co.^ in 
 which the opinion of the court was pronounced by Chief 
 Justice Shaw. In this case, which also presents the pre- 
 cise question fairly, the earlier cases of Priestley v. Fowler,^ 
 and Murray v. South Carolina R. R.,* are cited as authority. 
 The rule as laid down in those cases is expounded and en- 
 forced with such learning and ability, and with such cogen- 
 cy of logic, that this opinion has ever since been regarded 
 one of the most profound and masterly to be found in any 
 of our law reports. It has been cited with admiration 
 and approval, it may safely be said, in all the courts of 
 this country, as well as in England. With these two 
 leading American adjudications as cases of first impres- 
 sion, handed down at nearly the same time, declaring the 
 
 > Murray v. South Carolina R. R. ^ 4 Mete. 49.; S. C. 38 Am. Dec. 
 Co., I McMillan's Law, 385, 388; 339. 
 S. C. 36 Am. Dec. 268. » 3 Mees. & W^. i, supra. 
 
 * I McMillan's Law, 385, supra. 
 
320 
 
 MASTER AND SERVANT. 
 
 [§ I02. 
 
 law as just previously held in England, this doctrine be- 
 came, in process of time, firmly established as the Amer- 
 ican rule. 
 
 § 1 02. The rule stated. — It is the common -law rule in 
 every State and territory of the Union and in the Federal 
 courts, that a master or employer is not responsible to 
 those engaged in his employment for injuries suffered by 
 them as the result of the negligence, carelessness or 
 misconduct of other servants in his employ, engaged in 
 the same common or general service or employment, 
 denominated fellow-servants or co-employees, unless the 
 employer himself has been at fault. 
 
 The rule is so undisputed that it is sufficient to cite 
 one leading or recent decision in point in each jurisdic- 
 tion.^ 
 
 ' Keilley v. Belcher, 3 Sawyer, 500; 
 Chicago, &c., R. R. Co. v. Ross, 8 
 Fed. Rep. 544 ; affirmed by the Su- 
 preme Court of the U. S., Dec. I, 
 1884, 112 U. S. 377; Quinn v. New 
 Jersey Lighterage Co., U. S. Circ. Ct., 
 New York, E. D., April 2, 1885, 23 
 Fed. Rep. 363; s. C. 32 Alb. Law 
 Jour. 86 ; Alabama, &c., R. R. Co. v. 
 Waller, 48 Ala. 459 ;' McLean v. Blue 
 Point, &c., Co., 51 Cal. 255 : Summer- 
 hays V. Kansas, &c., R. R. Co., 2 
 Colo. 484; Colorado, &c., R. R. Co. 7/. 
 Ogden, 3 Id. 499 ; Burke v. Norwich, 
 34 Conn. 475 ; Georgia, &c., R. R. Co. 
 V. Rhodes, 56 Ga. 645 ; Shields v. 
 Yonge, 13 Id. 349; S. C. 60 Am. 
 Dec. 698 ; Crusselle v. Pugh, 67 Ga. 
 430; S. c. 44 Am. Rep. 724; Chica- 
 go, &c., R. R. Co. V. Rusch, 84 111. 
 570 ; Sullivan v. Toledo, &c., R. R. 
 Co., 58 Ind. 26; Robertson v Terre 
 Haute, &c., R. R. Co., 78 Ind. ^^ ; s. 
 C. 41 Am. Rep. 552 : Peterson i:'. White- 
 breast Coal, &c., Co., 50 Iowa, 673; S. 
 C. 32 Am. Rep. 143; Union Trust Co. 
 V. Thomason, 25 Kan. i ; Louisville, 
 &c., R. R. Co. V. Caven's Admr., 9 
 Bush. 559; Campz/. Churchwardens. 
 7 La. Ann. 321; Magee v. Boston Cord- 
 age Co., Sup. Ct., Me., June 20, 1885, 
 I Eastern Reporter, 126; Carle z/. Ban- 
 
 gor, &c., R. R. Co., 43 Me. 269 ; Blake 
 V. Maine, &c.. R. R. Co., 70 Id. 60; S. 
 C. 35 Am. Rep. 279; Hanrathy v. 
 Northern, &c., R. R. Co., 46 Md. 280; 
 Smiths. Lowell Manfg. Co., 124 Mass. 
 1 14 ; Johnson v. Boston Towboat Co., 
 135 Id. 209; s. C. 46 Am. Rep. 458; 
 Chicago, &c., R. R. Co. v. Bayfield, 
 
 37 Mich. 205 ; Smith v. Flint, &c., R. 
 R. Co., 46 Mich. 258; s. C. 41 Am. 
 Rep. 161 ; Joslin v. Grand Rapids Ice 
 Co., 50 Id. 516; S. C. 45 Am. Rep. 
 54; Foster v. Minnesota, &c., R. R. 
 Co., 14 Minn. 360 ; Brown v. Wino- 
 na, &c., R. R. Co., 27 Id. 162 ; S. C. 
 
 38 Am. Rep. 285 ; Tiemey v. Minne- 
 sota, &c., R. R. Co., Sup. Ct., Minn., 
 April 6, 1885;. 32 Albany Law Jour. 
 133; Memphis, &c., R. R. Co. v. 
 Thomas, 51 Miss. 639 ; Howd v. Mis- 
 sissippi, &c., R. R. Co., 50 Id. 178; 
 Gibson v. Pacific, &c., R. R. Co., 46 
 Mo. 163; Gormly v. Vulcan Iron 
 Works, 6i Id. 492; Mc Andrews v. 
 Bums,39 N. J Law, 118; Slater z/.Jew- 
 ett, 85 N.Y. 61; s. c. 39 Am. Rep. 627; 
 Brock V. Rochester, &c., R^ R. Co., 
 Ct. of App. of N. Y., Feb. 10, 1885, 32 
 Albany Law Jour. 52 ; Sherman v. 
 Syracuse. &c., R.R. Co., 17 N.Y. 153; 
 Laning v. N. Y., &c., R. R. Co., 49 
 Id. 512 ; Murphy v. Boston & Albany 
 
§ 103.] MASTER AND SERVANT. 321 
 
 § 103. Reason for the rule. — It is clear that this 
 exception to the rule of respondeat superior in fa- 
 vor of employers had its origin in the common law in 
 the case of Priestley v. Fowler^ in England, and in 
 Murray v. South Carolina R. R Co.* in the United 
 States. We shall look in vain in the reports of either 
 country for any earlier adjudications than these in point. 
 A consideration of the later cases will show that the 
 doctrine has Ijeen mainly developed under the influence 
 upon the jurisprudence of each country of the great 
 railway corporations. A very large proportion of the 
 cases in which the question of an employer's liability to 
 his employees in this regard has arisen, have been railway 
 cases, and the commercial importance and power of these 
 corporations have extended the rule in their interest much 
 beyond what might, under other circumstances, have been 
 expected. But, while the origin of the rule is not far to 
 seek, and its development from 1837 to the present time 
 can be intelligently appreciated, with the principal under- 
 lying causes of its extension and growth, in the opinion 
 of the author no entirely satisfactory reason for the ex- 
 ception has ever been found. The reasons of the rule 
 have never been better stated than by the great Chief 
 Justice of Massachusetts, in Farwell v. Boston & Worces- 
 ter R. R. Co.* His opinion contains, in substance, all the 
 arguments which in forty succeeding years have been dis- 
 
 R. R. Co., 88 N. Y. 146 ; s. c.42Am. Am. Rep. 317; Price v. Houston, 
 
 Rep. 240; Hardy v. Carolina, &c., R. &c., R. R. Co, 46 Texas, 535 ; Hard 
 
 R. Co., 76 N. C. S; Murray 2/. South v. Vermont, &c., R. R. Co., 32 Vt. 
 
 Carolina R. R. Co., i McMul. 385 ; 472 ; Brabbits v. Chicago, &c., R. R. 
 
 s. c. 36 Am. Dec. 268 ; Whaalan v. Co., 38 Wis. 289 ; Luebke v. Chicago, 
 
 Mad River R. R. Co., 8 Ohio St. &c., R. R. Co., 59 Id. 127 ; s. C. 48 
 
 249 ; Lehigh Valley Coal Co. v. Jones, Am. Rep. 483. See, also, Cooley on 
 
 86 Penn. St. 432 ; Key Stone Bridge Torts, 541 ; i Redfield on Railways, 
 
 Co. V. Newberry, 96 Id. 246; S. C. 42 § 131, et seq. 
 
 Am. Rep. 543; Fox v. Sandford, 4 * 3 Mees. & W. r. 
 
 Sneed, 36; Nashville, &c., R. R. Co. " i McMillan's Law, 385. 
 
 V. Wheless, 10 Lea. 741 ; s. c. 43 '4 Mete. 49. 
 
 . 31 
 
32 2 MASTER AND SERVANT. [§ I03. 
 
 covered by the courts in favor of the rule as therein 
 adopted, and they amount, it is submitted, in reality to 
 this : that from considerations of public policy and gen- 
 eral convenience, the law will refuse, in the absence of an 
 express contract, to imply a contract on the part of the 
 employer of liability for the negligence of his employee 
 as to a fellow employee, but will, from the same consider- 
 ^ations, in the absence of an express contract, imply a 
 ■contract on the part of the employee to run the risk as 
 to his co-employees of all the ordinary and extraordinary 
 ■dangers of the common employment. If this be an 
 •essentially fair statement of what is proposed as the ratio 
 ydecidendi, it is safe to charge that it is not entirely 
 satisfactory. It may be briefly urged, in objection to the 
 present state of the law upon this point — {a) that, inas- 
 much as it is essentially a question of agency, it is a violent 
 rule that allows the judges to say, as matter of la\v, before- 
 hand, in every case where a servant injures a fellow-servant, 
 that he is not quod hoc the master's agent, when it 'is not 
 denied that he is his master's agent for some purposes. 
 Shall the courts presume to say, when the question of 
 agency is properly a question of fact, that when injury 
 results, there is no agency, while when advantage results 
 the agency is not to be disputed ? If the servant is the 
 master's agent there is an end of controversy ; and were 
 not the Scotch judges right, in Wilson v. Merry,* in 
 holding that in such a case the question of the agency 
 must go to the jury ? Is not such a rule very nearly 
 what is called judge-made law ? (<}) It may further be 
 asserted that, upon this subject, as to the question of 
 public policy, judges, as a rule, are not more capable of 
 deciding than other equally informed and experienced 
 men, and that in assuming that the rule of the non- 
 
 » L. R. I Sc. App. 326; s. C. 19 L. T. (N. S.), 30. 
 
§ 103.] MASTER AND SERVANT. 323 
 
 liability of employers is the better policy, questions of 
 fact are involved which the policy of the law has 
 usually referred to juries. Moreover, this question of 
 public policy and general convenience was decided for us 
 in the very infancy of the great corporate interests of the 
 country, when railways were an experiment, and powerful 
 private corporations had not been born. What was 
 sound public policy before the middle of the century, 
 even if it is conceded that the judges of forty years ago 
 divined it aright, when Priestley v. Fowler and Murray v. 
 South Carolina R. R. Co. were handed down, may, in 
 view of the extraordinary change in position as regards 
 employer and employee, reasonably be challenged in 
 1885. It is quite possible that what was good public 
 policy then, is not policy in any sense now. {c) Is it 
 in point of fact true that the employee takes the risk 
 of the employment, by entering into it with his eyes 
 open ? Verily, he does in a legal point of view in the 
 present attitude of the law toward him. If he is in- 
 jured, as the law is, he gets no damages, and it is a legal 
 presumption that every man knows the law. But this 
 is not enough to sustain the position. It proceeds 
 upon the presumption, not of law, but of fact, that the 
 employee actually thinks of the possibility of injury, 
 and deliberately decides to take the risk. This is an 
 assumption contrary to all human experience, and the 
 position seems wholly untenable. In reality the servant 
 does not voluntarily and intelligently decide to assume 
 any such risk as the law casts upon him. (a?) But, it is 
 said, as a controlling argument, that there is the implied 
 contract on the part of the servant, implied through 
 considerations of public convenience. To which it may 
 be replied that the policy is questioned. It is insisted, 
 also, that, aside from this supposed consideration of 
 public policy, there is no consideration whatsoever for 
 
324 MASTER AND SERVANT. [§ I04. 
 
 such a contract, the price of labor not being pretended to 
 be in any proportion to the risk— (?. g., a railway brake- 
 man receives smaller wages than a conductor, while his 
 exposure to danger is many times more ; and a fireman is 
 paid less for risking his life every othjer night than a sta- 
 tion agent is paid for running no risk at all. Moreover, 
 this implied contract, fastened upon the employee, is one 
 which, on the one hand, he did not make for himself, but 
 which, on the other hand, if he consulted his interests, he 
 would wholly refuse to make if the matter were brought 
 to his notice. By what right does a court assume to 
 frame this contract for him ? To which the only answer 
 is, by virtue of considerations of public policy and under 
 the operation of the rule of stare decisis. Because Lord 
 Abinger in England, in 1837, and Judge Evans in South 
 Carolina, in 1841, in cases of novel impression, believed 
 that public policy required the adoption of this rule at 
 that day — ^when at least it is barely possible that these two 
 judges were mistaken — all the courts of the two countries 
 follow these precedents, and the law is as it is. That is 
 to say, the rule in its present shape exists because two 
 judges made a law which it is not the prerogative of any 
 tribunal to make.^ 
 
 § 104. The modification in Kentucky. — Under a stat- 
 ute in Kentucky, giving punitive damages in case of 
 death resulting from wilful neglect, it is held that when 
 the wilful neglect of the defendant is established, the 
 contributory negligence of the plaintiff is no bar to his 
 recovery.'' 
 
 1 See a full discussion of this whole lature. By Charles G. Fall, Esq., of 
 
 subject in "Employers' Liability for the Suffolk Bar, Boston, 1883. 
 Personal Injuries to their Employees," ^ Louisville, &c., R. R. Co. v. 
 
 a pamphlet written for the Common- Goodell, 17 B. Mon. 586; Id. v. 
 
 wealth of Massachusetts in accord- Sickings, 5 Bush, i ; Id. v. Filbum, 6 
 
 ance with a resolution of the legis- Id. 574; Id. v. Mahony, 7 Id. 235; 
 
§ 105.] MASTER AND SERVANT. 325 
 
 The Statute is as follows : " If the life of any person 
 is lost or destroyed by the wilful neglect of another per- 
 son or persons, company or companies, corporation or 
 corporations, their agents or servants, then the personal 
 representative of the deceased shall have the right to sue 
 such person or persons, company or companies, corpo 
 ration or corporations, and recover punitive damages for 
 the loss or destruction of the life aforesaid." ^ " Wilful 
 neglect," within the meaning of this statute, is such 
 conduct as implies malice, or a reckless disregard of 
 human safety, i. e. such negligence as is quasi-cxm\vs\.2\ ; ^ 
 but if the killing be intentional, it does not come within 
 the statute. " The redress of injuries consisting in the 
 destruction of life resulting from negligence, is the exclu- 
 sive subject to which all the provisions of the statute 
 rel»te ; "* neither will the statute apply where the injuries 
 do not result in death ; * nor in cases where the wilful 
 neglect of the defendant is not clearly made out' 
 
 § 105. Leading authority in Kentucky. — The leading 
 case in Kentucky, considering an employer's liability in 
 this regard, is Louisville, &c., R R. Co, v. Collins,® in 
 which the opinion was written by Chief Justice Robert- 
 son. This case settled the law as to the liability of an 
 employer to his employee for injuries occasioned by the 
 negligence of a fellow-servant, and the doctrine of that 
 
 Digby w. Kenton Iron Works Co., 8 &c., R. R. Co., 10 Id. 263; Claxton 
 
 Id. 166; Jacobs V. Louisville, &c., R. v. Lexington, &c., R. R. Co., 13 Id. 
 
 R. Co., 10 Id. 263; Claxton v. Lex- 642; Lexington v. Lewis' Admx., 10 
 
 ington, &c., R. R. Co., 13 Bush. 636; Bush. 677; Hansford's Admx. v. 
 
 Jones Admr. v. Louisville, &c., R. Payne, 11 Id. 380; Chiles v. Drake, 
 
 R. Co., Superior Court of Ky., 1885, 2 Mete. 146. 
 
 to be reported. ' Spring's Admr. ». Glenn, 12 
 
 1 2 Stanton's Rev. Stat. Ky., 510, Bush. 172. 
 
 §3; Genl. Stat. 1873, chap. 57; §3- * Louisville, &c., R. R. Co., v. 
 
 * Board of Internal Improvements Collins, 2 Duv. 1 14 ; Id. v. Robinson, 
 
 ■i'. Scearce, 2 Duv. 576; Louisville, 4 Bush. 507. 
 
 &c., Canal Co. v. Murphy, 9 Bush. « Sullivan v. Louisville Bridge Co., 
 
 522; Louisville, &c., R.. R. Co. v. 9 Bush. 81. 
 
 Case, 9 Id. 728; Jacobs v. Louisville, « 2 Duv. 114. 
 
326 MASTER AND SERVANT. [§ IO5. 
 
 decision has sometimes been understood to be something 
 near the Georgia and Illinois rule of " comparative neg- 
 ligence." It is, however, not exactly that, as a careful 
 reading of the leading case will show.^ It was a simple 
 case presenting the question fairly. A railway engineer 
 ordered a young and inexperienced laborer to go under 
 an engine, which was standing on the track with steam 
 up, for the purpose of making repairs, and the engineer 
 neglected to check the hind wheels, and the engine 
 started, cutting off both the legs of the laborer. The 
 court held that, while the laborer may have been negli- 
 gent, yet, as the negligence of the engineer was wilful,, 
 the company must pay damages. The court said : " The 
 only consistent or maintainable principle of the corpo- 
 ration's responsibility is that of agency. Qui facit per 
 alium facit per se. It is, therefore, responsible for i^he 
 negligence or unskillfulness of its engineer, as its con- 
 trolling agent in the management of its locomotives and 
 running cars, and that responsibility is graded by the 
 classes of persons injured by the engineer's neglect or 
 want of skill. As to strangers, ordinary negligence is 
 sufficient ; as to subordinate employees, associated with 
 the engineer in conducting the cars, the negligence must 
 be gross,* but as to employees in a different department 
 of service, unconnected with the running operations, 
 ordinary negligence may be sufficient. Among common 
 laborers constituting a distinct class, all standing on the 
 same platform of equality and power and engaged in a 
 merely incidental but independent service, no one of 
 them, as between himself and his co-equals, is the corpo- 
 ration's agent, and, therefore, it is not, on the principle 
 of agency or otherwise, responsible for damages to one 
 of them resulting from the act or omission of another of 
 
 ' Vide § 31, sK^ra, for an extended * /. e., wilful, see § 31, supra. 
 discussion of that case. 
 
§§ I06, 107.] MASTER AND SERVANT. 327 
 
 them, although each of the company's employees would 
 be its agent as to entire strangers to it." ^ 
 
 This is the Kentucky doctrine. It is, perhaps it 
 should be admitted, something more than the general 
 rule, but it is plainly not the same thing as the rule of 
 " comparative negligence." * 
 
 § 106. The rule in Illinois. — In Illinois, under the 
 influence of the rule of comparative negligence, the gen- 
 eral rule, as to an employer's liability to his employee 
 for the negligence of a co-employee, is so modified that 
 a comparison is instituted between the negligence of 
 plaintiff" and defendant, and if it appear that the negli- 
 gence of the former is slight while that of the latter is 
 gross, the plaintiff" may recover. So thoroughly is this 
 pernicious principle engrafted upon the jurisprudence of 
 that State that it is asserted even here.* 
 
 § 107. The rule in Tennessee. — A somewhat similar 
 qualification of the rule has been asserted in Tennessee. 
 There, a plaintiff" may not recover if, by the exercise of 
 ordinary care, he could have avoided the mischief, but 
 if only by extraordinary care could it have been avoided, 
 he may recover ; and it is also held that a plaintiff"'s neg- 
 ligence which is not sufficient altogether to defeat a 
 recovery, may be looked to in mitigation of damages.* 
 
 " Where a party," says McKinney, J., in the leading 
 case, " brings an injury upon himself, or contributes to 
 it, the mere want of a superior degree of care or diligence 
 
 1 Louisville, &c., R. R. Co. v. Col- Id. 236; St. Louis, &c., R. R. Co. v. 
 
 lins, 2 Duv. 114. Britz, 72 Id. 256; Toledo, &c., R. R. 
 
 * See, particularly, Louisville, &c., Co. v. O'Connor, 77 Id. 391 ; Foster 
 
 R. R. Co. V. Robinson, 4 Bush. 507; v. Chicago, &c., R. R. Co., 84 Id. 
 
 Digby V. Kenton Iron Works Co., 8 165; and see §j 25, 26, 27, supra. 
 
 Bush. 166, and cf.%y., supra. * Whirley v. Whiteman, i Head, 
 
 » Chicago, &c , R. R. Co. w. Greg- 610; Nashville, &c., R. R. Co. v. 
 
 ory, 58 111. 272 ; Id. v. Sullivan, 63 Carroll, 6 Heisk. 347. 
 Id. 293 ; Fairbank v. Haentzsche, 73 
 
328 MASTER AND SERVANT. [§ Io8. 
 
 cannot be set up as a bar to the plaintiff's claim for 
 redress, and, although the plaintiflF may himself have been 
 guilty of negligence, yet, unless he might, by the exercise 
 of ordinary care, have avoided the consequence of the 
 defendant's negligence, he will be entitled to recover."^ 
 
 § 1 08. Who are fellow-servants. — A servant, in law, 
 is any person, male or female, minor or of full age, paid 
 or unpaid, who works for another with his knowledge 
 and consent. Two or more such persons working for 
 the same master are co-employees, or fellow-servants. 
 The earliest case in which the question, as bearing upon 
 the matter of negligence, arose, was Priestley v. Fowler,' 
 decided in the English Court of Exchequer, in 1837. In 
 this case, two men, working for a butcher and riding in 
 his van, were held fellow-servants. Here, there was a 
 similar occupation, and they had full knowledge, or 
 opportunity for knowledge, of each other's care and 
 character and judgment. In the next case, Murray v. 
 South Carolina R. R. Co.,* decided in the Court of 
 Appeals, of South Carolina, in 1841, an engineer and 
 fireman, employed together upon the same locomotive, 
 were held fellow-servants. In Farwell v. Boston and 
 Worcester R. R. Co.,* decided in 1842, a locomotive 
 engineer and a switchman are declared to be within the 
 rule. In Brown v. Maxwell," a New York case, decided 
 in 1844, a workman and his foreman, whose orders the 
 workman was required to obey, were held co-employees. 
 In 1850, in Albro v. Agawam Canal Co.,* the rule as 
 originally declared in Massachusetts, in Farwell v. Boston 
 
 ^ Whirley v. Whiteman, supra\ *4 Mete. 49; S. C. 38 Am. Dec. 
 
 and see §§ 24, 30, supra. 339. 
 
 « 3 Mees. & W. I. » 6 Hill, 592; s. C. 41 Am. Dec. 
 
 * I McMillan's Law, 385; s. C. 36 771. 
 
 Am. Dec. 268. « 6 Cush. 75. 
 
§ log.] MASTER AND SERVANT. 329 
 
 and Worcester R. R. Co./ was extended, and an opera- 
 tive and his superintendent were held fellow-servants. In 
 1856, the New York Court of Appeals took a similar 
 ground in Sherman v. The Rochester and Syracuse R. 
 R. Co.* In Wiggett v. Fox,^ an English case decided in 
 the same year, there is a still more radical extension of 
 the doctrine, which in that case is held to apply to an 
 enployee of a sub-contractor, whose negligence caused 
 injury to the defendant's servant, and who was hired to 
 do work by the piece. The wages of the employee were 
 paid by the defendant, but he worked under the direction 
 of the sub-contractor. In the later cases, the rule has 
 been sufficiently extended to include almost every possi- 
 ble employee of any employer. 
 
 § 109. The rule stated. — In the present state of the 
 law the essence of common employment is a common 
 employer and payment from a common fund. The 
 weight of authority is to the effect that all who work 
 for a common master, or who are subject to a common 
 control, or derive their compensation from a common 
 source, and are engaged in the same general employment, 
 working to accomplish the same general end, though it 
 may be in different departments, or grades of it, are co- 
 employees, who are held in law to assume the risk of one 
 another's negligence.* 
 
 1 Supra. Zeiglerw. Day, 123 Mass. 152; Law- 
 
 ^ 17 N. Y. 153. ler v. Androscoggin, &c., R. R. Co., 
 
 ' II Exch. 832; S. C. 2 Jur. (N. S.) 62 Me. 463 ; S. C. 16 Am. Rep. 492 ; 
 
 955; 25 L. J. (Exch.) 188. Peterson v. W^hitebreast C. & M. Co., 
 
 * Wigmore v. Joy, 5 Exch. 354; S. 50 Iowa, 673; S. C. 32 Am. Rep. 143; 
 
 C. 14 Jur. 838 ; 19 L. J. (Exch.), 300; McLean v. Blue Point M. Co., 51 Cal. 
 
 Feltham v. England, 2 L. R. (Q. B.), 255 ; Lehigh Valley Coal Co. v. Jones, 
 
 33 ; S. C. 4 Fost. & Fin. 460 ; 7 Best 86 Penn. St. 432 ; McGowan v. St. 
 
 &S. 676; Wonder ». Baltimore, &c., Louis, &c., R. 'R. Co., 61 Mo. 528; 
 
 R. R. Co., 32 Md. 411 ; S. C. 3 Am. O'Connor w. Roberts, 120 Mass. 227; 
 
 Rep. 143; Thayer v. St Louis, &c., Malone v. Hathaway, 64 N. Y. 5 ; S. 
 
 R. R. Co., 22 Ind. 26; Foster v. Min- C. 21 Am Rep. 573 ; Blake v. Maine, 
 
 nesota, &c., R. R. Co., 14 Minn. &c., R. R. Co.. 70 Me. 60; s. C. 35 
 
 360; Collier v. Steinbart, 51 Cal. 116; Am. Rep. 297. " Superiority in grade 
 
330 MASTER AND SERVANT. f§ IO9. 
 
 Lord Cranworth, in the famous case of Bartonshill 
 Coal Co. V. Reid,^ defined the relation as follows: "To 
 constitute fellow-laborers within the meaning of the doc- 
 trine which protects the master from responsibility for 
 injuries sustained by one servant through the wrongful 
 act or carelessness of another, it is not necessary that 
 the servant causing and the servant sustaining the injury 
 shall both be engaged in precisely the same, or even sim- 
 ilar acts. Thus, the driver and guard of a stage-coach, 
 the steersman and rowers of a boat, the man who draws 
 the red-hot iron from the forge and those who hammer 
 it into shape, the engineer and switchman, the man who 
 lets the miners down into, and who afterwards brings 
 them up from the mine, and the miners themselves — all 
 these are fellow-servants and collaborateurs within the 
 meaning of the doctrine in question." This is, in general, 
 a fair statement of the prevailing rule as held in England 
 and this country. It must be admitted that the terms 
 " fellow-servant" and "common employment," under late 
 decisions both in England and the United States, are of 
 very comprehensive import.* 
 
 or rank does not change the relation." R. R. Co. v. Britz, 72 111. 256; Kan- 
 Woods' " Master & Servant," p. 847, sas, &c., R. R. Co. v. Salmon, 11 
 et seq. Kan. 83 ; Gilshannon v. Stony Brook, 
 
 1 3 Macq. H. L. Cas. 266; S. C. 4 &c., R. R. Co., lo Cush. 298; Beaver 
 
 Jur. (N. S.), 767; I Pat. Sc. App. w. Boston, &c., R. R. Co., 14 Gray, 
 
 796, decided in 1858. "ReidandMc- 466; Manville w. Cleveland, &c., R. 
 
 Guire were both victims of the same R. Co., 11 Ohio St. 417; Mc Andrews 
 
 accident which, though melancholy, w. Bums, 30 N. J. Law, 117; Valtez t*. 
 
 has settled the law," quaintly observes Ohio &c., R. R. Co., 85 111. 500; 
 
 the reporter. Hodgkins «/. Eastern R. R. Co., 119 
 
 * Holden v. Fitchburg R. R. Co., Mass. 419 ; Baulec v. New Yorjc, &c., 
 
 129 Mass. 268; S. C. 37 Am. Rep. R. R. Co., 59 N. Y. 356; S. C. 5 
 
 343 ; Summersell v. Fish, 1 17 Id. 312 ; Lans. 436 ; 62 Barb. 623 ; Sammon v. 
 
 Hofnagle v. New York, &c., R. R. Id., 62 N. Y. 251 ; Ohio, &c., R. R. 
 
 Co., 55 N. Y. 608 ; Weger v. Penn. R. Co. v. Hammersley, 28 Ind. 371 ; Tun- 
 
 R. Co., 55 Penn. St. 460; Marshall v. ney v. Midland Ry. Co., i L. R. (C. 
 
 Schricker, 63 Mo. 308; Columbus, P.), 291 ; Murphy z;. Smith, 19 C. B. 
 
 &c., R.R. Co. W.Arnold, 31 Ind. 174; (N. S.). 361; S.C. 12 L. T. (N. S.) 
 
 Railway Co. v. Lewis, 33 Ohio St. 605 ; Allen v. New Gas Co., i Exch. 
 
 196; Cooper V. Milwaukee, &c., R. Div. 254; s. c. 45 L. J. 668; How- 
 
 R. Co., 23 Wis. 668; St. Louis, &c., ells z/. Steel Co., L. R. 10 Q. B. 625 
 
§ no-] 
 
 MASTER AND SERVANT. 
 
 331 
 
 § 1 10. When the servant is deemed the agent of the 
 master, or his vice-principal, the rule of non-liability is 
 qualified. — By the Supreme Court of the United States, 
 and in several of the State courts, it is held that where 
 the negligent servant is, in his grade of employment, su- 
 perior to the injured servant, or where one servant is 
 placed by the employer in a position of subordination, 
 and subject to the orders and control of another in such 
 a way and to such an extent that the servant so placed 
 in control may reasonably be regarded as representing 
 the master, as his alter ego, or vice-principal, when such 
 inferior servant, without fault, and while in discharge of 
 his duty, is injured by the negligence of the superior 
 servant, the master is liable in damages for the injury.^ 
 
 S. C. 44 L. J. (Q. B.), 25 ; 32 L. T. 
 (N. S.), 19: 23 Weekly Rep. 335; 
 Conway v. Belfast Ry. Co., Ir. R. 9 C. 
 L. 498 ; Wilson V. Merry, L. R. i H. 
 L. Cas. Sc. App. 326 ; Peschel v. Chi- 
 cago, &c., R. R. Co., 21 N. W. Rep. 
 269; S. C. 20 Cent. L. J. 203; Mo- 
 bile, &c., R. R. Co. V. Smith, 59 Ala. 
 245 ; Wilson v. Madison, &c., R. R. 
 Co., 81 Ind. 226 ; Colorado, &c., R. 
 R. Co. V. Martin, Sup. Ct., Colo., 
 1884, 4 W. C. Rep. 563; S. C. xix Am. 
 Law Rev. 163; Johnson v. Boston 
 Towboat Co., 135 Mass. 209 ; S. C. 46 
 Am. Rep. 458; Magee v. Boston 
 Cordage Co., Sup. Jud. Ct., Mass., 
 June 20, 1885, I Eastern Reporter, 
 126. 
 
 1 Railroad Co. v. Fort, 17 Wall. 
 S53; affirming S. C. 2 Dill. 259; Mann 
 V. Oriental Print Works, 11 R. I. 152; 
 Little Miami, &c., R. R. Co. v. Stev- 
 ens, 20 Ohio, 41 5 ; Dixon v. Rankin, 
 I Am. R. R. Cas. 567, and note; 
 Cleveland, &c., R. R. Co. v. Keary, 3 
 Ohio St. 201 ; Whaalan v. Mad River, 
 &c., R. R. Co., 8 Id. 249; Berea 
 Stone Co. v. Kraft, 31 Id. 287 ; Green- 
 leaf V. Illinois, &c., R. R. Co., 29 
 Iowa, 14; Cooper v. Iowa Central R. 
 R. Co., 44 Id. 134 ; Patterson v. Pitts- 
 burgh, &c., R. R. Co., 76 Penn. St. 
 
 389 ; Brothers v. Cartter, 57 Mo. 373 ; 
 S. C. 14 Am. Rep. 424; Whalen v. 
 Centenary Church, 62 Id. 226 ; Cook 
 V. Hannibal, &c., R. R. Co., 63 Id. 
 397 ; Louisville, &c., R. R. Co. v. 
 Bowles, 9 Heisk. 866; Nashville, &c., 
 R. R. Co. V. Jones, 9 Id. 27 ; Chica- 
 go, &c., R. R. Co. V. Bayfield, 37 
 Mich. 205; Lalor v. Chicago, &c., R. 
 R. Co., 52 111. 401 ; Mullan v. Phila. 
 Steamship Co., 78 Penn. St. 25 ; S. C. 
 21 Am. Rep. 2; Kansas, &c.,R.R.Co. 
 V. Little, 19 Kan. 267; Walker v. 
 Bowling, 22 Ala. 294 ; Moon's Adrar. 
 V. Richmond, &c., R. R. Co., 78 
 Va. 745 ; S. C. 49 Am. Rep. 401 ; 
 Chicago, &c., R. R. Co. z/. Ross, 1 12 U. 
 S.377 ; s.C. 8 Fed. Rep. 544; Wharton 
 on Neg., § 229; Thompson on Neg., 
 1028, § 34; Shearman & Redf. on 
 Neg., § 102 ; Brabbits v. Chicago, 
 &c., R. R. Co., 38 Wis. 289 ; Cum- 
 berland, &c., R. R. Co. V. State, 44 
 Md. 283 ; Fuller v. Jewett, 80 N. Y. 
 46; S. C. 36 Am. Rep. 575 ; Toledo, 
 &c., R. R. Co V. Ingraham, 77 111. 
 309; Dobbin v. Richmond, &c., R. R. 
 Co., 81 N. C. 446; s. C. 31 Am. Rep. 
 512; Braun v. Chicago, &c., R. R. Co., 
 53 Iowa, 595 ; Booth v. Boston, &c., 
 R. R. Co., 73 N. Y. 38 ; s. C. 29 Am. 
 Rep. 97 ; Railway v. Sullivan, 5 Tex. 
 
332 MASTER AND SERVANT. [§ III. 
 
 § III. Applications of this doctrine. — ^It is held in 
 Ohio that where one servant is a subordinate, and subject 
 to the orders and control of another servant, and such 
 inferior servant is injured while in discharge of his duty, 
 without fault, through the negligenge of his superior, the 
 master is liable. In such a case the superior servant is 
 held to be the vice-principal,^ And in Rhode Island 
 the same rule is applied as between an engineer of a 
 manufacturing establishment and his fireman. When, 
 therefore, the engineer ordered the fireman into an ex- 
 tra hazardous position, to perform a duty outside of that 
 which he was engaged to perform, in consequence of 
 which he was injured, the company was held liable.* In 
 several jurisdictions it is held that an employer is liable 
 for the negligence of a superintendent which causes in- 
 jury to a mere employee ; that the negligence of such a 
 superior officer as this one, entrusted with the general 
 management and control of a business, is the negligence 
 of the employer, for which he is liable.^ So held in 
 
 Law Rev. 183, Sup. Ct., Texas, 1885; ' Berea Stone Co. v. Kraft, 31 
 
 Davis V. Central Vermont R. R. Co., Ohio St. 287 ; City of Toledo v. Cone, 
 
 55 Vt. 84; s. C. 45 Am. Rep. 590; Sup. Ct. of Ohio, 1885, xix Am. Law 
 
 Ryan v. Bagaley, 50 Mich. 179; S. C. Rev. 330. 
 
 45 Am. Rep.>35; Dowling v. Allen, * Mann w. Onental Print Works, 1 1 
 
 74 Mo. 13; s. c. 41 Am. Rep. 298; R. L 152.' 
 
 Wilson V. Willimantic, &c., Co., 50 ^ Railroad Co. v. Fort, \^ Wall. 
 
 Conn. 433; S. C. 47 Am. Rep. 653; $53! Cook v. Hannibal, &c., R. R. 
 
 Flike V. Boston, &c., R. R. Co., 53 N. Co., 63 Mo. 397 ; Washburn v. Nash- 
 
 Y. 549; s. C. 13 Am. Rep. 545; ville, &c., R. R. Co., 3 Head. 638; 
 
 Crispin V. Babbitt, 81 N. Y. 516 ; S.C. Railway v. Sullivan, Sup. Ct., Texas, 
 
 37 Am. Rep. 521 ; McCasker v. Long 1885, 5 Texas Law Rev. 183; Dobbin 
 
 Island, &c., R. R. Co., 84 N. Y. 77; v. Richmond, &c.,R. R. Co., 81 N.C. 
 
 Gunter v. Graniteville Manfg. Co., 18 446 ; Wilson v. Willimantic, &c., 
 
 S.C. 262; s. c. 44 Am. Rep. 573; Co., 50 Conn. 433; S. C. 47 Am. 
 
 Cowles V. Richmond, &c., R. R. Co., Rep. 653 ; Gunter v. Graniteville 
 
 84 N, C. 309; S. C. 37 Am. Rep. Manfg. Co., 18 S. C. 262; S. C. 44 
 
 •620 ; Malone v. Hathaway, 64 N. Y. Am. Rep. 573 ; Dowling v. Allen, 74 
 
 S; S. C. 21 Am. Rep. 573 ; Mitchell Mo. 13; S. C. 41 Am. Rep. 298. 
 
 'V. Robinson, 80 Ind. 281 ; S. C. 41 See, also, Peschel w. Chicago, &c., R. 
 
 Am. Rep. 812; Corcoran v. Hoi- R. Co., Sup. Ct., Wis.,21 N. W. Rep. 
 
 brook, 59 N. Y. 517; s. C. \^ Am. 269; Meyhew ?<. Sullivan Mining Co., 
 
 Rep. 369; Atlanta Cotton Factory v. Sup. Jud. Ct., Me., 1885, Albany Law 
 
 Speer, 69 Ga. 137; s. C. 47 Am. Rep. Jour., Feb. 21, 1885; s. C. xix Am. 
 
 750- Law Rev. 328. 
 
§ 112.] MASTER AND SERVANT. 333 
 
 England of a foreman,^ and, in Missouri, of an architect 
 and superintendent having general charge of building a 
 church ; * and of a " section boss " upon a railroad ; * and 
 of the captain of a ship ;* and of an ordinary superin- 
 tendent, although engaged at the time of the injury at 
 the same work with the servant injured.® And in Iowa, a 
 foreman is a fellow-servant of the men under him, within 
 a statute authorizing employees to recover from the em- 
 ployer for injuries by the negligence of other employees.* 
 
 § 1 1 2. Test whether one is a mere servant or the rep- 
 resentative of the master. — It has been held that the 
 power to employ and discharge servants, or to purchase 
 and change machinery is the true test whether an em- 
 ployee is or not a representative of his master.'' 
 
 But this is, in the author's judgment, a narrow and 
 somewhat superficial view. It seems plain that if the 
 person in question is employed to perform any of the 
 duties of a master, either these or any others that a master 
 alone may properly do, then is the person no longer a 
 mere servant, but at once, and ipso facto, the agent, the 
 alter ego of his employer. In Gunter v. Graniteville 
 Manufacturing Co.,^ Mclver, J., says: "The test as to 
 whether an employee is the representative of the master, 
 is, not whether such employee has the power to employ 
 or discharge hands, or to purchase or change machinery, 
 
 * Grizzle V. Frost, 3 Fost. & Fin. " Houser v. Chicago, &c., R. R. 
 622. Co., 60 Iowa, 230; S. C. 46 Am. Rep. 
 
 * Whalen v. Centenary Church, 62 65. 
 
 Mo. 226. ' Stoddard v. St. Louis, &c., R. R. 
 
 ' Louisville, &c., R. R. Co. v. Co., 65 Mo. 514; Chapman v. Erie 
 
 Bowles, 9 Heisk. 866. Ry. Co., 55 N. Y. 579; Kansas, &c., 
 
 * Ramsay w. Quinn, Irish Common R. R. Co. v. Little, 19 Kan. 267; 
 Pleas, 4 Cent. Law Jour. 478. See, Walker w. Bowling, 22 Ala 294 ; Lan- 
 also, Wharton's Neg., § 229. ing v. New York, &c., R. R. Co., 49 
 
 » Crispin V. Babbitt, 8i N. Y. 516; N. Y. 521 ; Shear. & Redf. on Neg., 
 
 S. C. 37 Am. Rep. 521 ; Gormly v. § 103. 
 
 Vulcan Iron Works, 61 Mo. 492; * 18 S. C. 362; s. C. 44 Am. Rep. 
 
 McCasker v. Long Island, &c., R. R. 573. 
 Co., 84 N. Y. 77. 
 
334 
 
 MASTER AND SERVANT. [§ 1 1 3- 
 
 for while these are some of the duties of the master they 
 are not all of his duties, and hence an employee who is 
 not intrusted with either of these powers may still be the 
 representative of the master. The true test is whether 
 the person in question is employed tg do any of the duties 
 of the master ; if so, then he cannot be regarded as a fel- 
 low-servant or co-laborer with the operatives, but is the rep- 
 resentative of the master, and any negligence on his part 
 in the performance of the duty of the master thus dele- 
 gated to him, must be regarded as the negligence of the 
 master." This is the rule most consonant with justice and 
 right reason.^ 
 
 § 1 1 3. Should there be one rule in this particular ap- 
 plicable to corporations and another less stringent one ap- 
 plicable to other hirers of labor ? — The constructive or 
 presumed presence of the corporation in the acts of its 
 servants is a favorite doctrine with some judges and text- 
 writers. Under the influence of this theory, in some 
 jurisdictions there is attempted a distinction in this re- 
 gard between a corporation and a natural person. Inas- 
 much as bodies corporate can, from their very nature, act 
 only through an agent it is urged that, unless this execu- 
 tive agent is to be deemed for the purposes of thjs rule 
 the corporation itself, there will result in favor of the 
 corporation an immunity which is denied to men who 
 carry on their business in person.* 
 
 A corporation should unquestionably be held liable 
 in damages for the negligence of its servant whenever 
 that servant, under the operation of an impartial rule, 
 stands to it in the relation of vice-principal. Whenever 
 
 * Compare Shear. & Redf. on Neg., Brickner v. New York, &c., R. R. Co., 
 § 104. 49 N. Y. 672; Cumberland, &c., R. R. 
 
 * I Redfield on Railways, 310. §2, Co. v. Hogan, 45 Md. 229; Id. v. 
 and notes ; Patterson v. Pittsburgh, Moran, 44 Id. 283. 
 
 &c., R. R. Co., 76 Penn. St. 389; 
 
§ 1 1 4-] MASTER AND SERVANT, 
 
 335 
 
 a body corporate comes, in its relations to its employees 
 fairly within the general rule of law which regulates the 
 liability of a master for the neglect of his servant then it 
 should answer, like any other master in like case, for the 
 servant's negligence. It is not easy to see why the rule 
 should go farther, or why there is any reason in fact or in 
 law, for carving out a rule especially applicable to cor- 
 porations. Under the operation of the rule as it stands, 
 the corporation is liable whenever it ought to be liable. 
 Judge Redfield, in his work on Railways, attempts to ex- 
 tend the doctrine, but it may well be questioned whether 
 the rule, if generally adopted, would be salutary in its 
 effect. The English courts refuse to recognize such a 
 distinction,^ and in at least one court in this country it 
 has been rather savagely criticised. In the case of the 
 Evansville, &c., R. R. Co. v. Baum,^ the court says : " Nor 
 will sound policy maintain the application of a rule of law 
 to railways, or corporations, on this subject, which shall 
 not be applied alike to others — as has been intimated in 
 some quarters. The suggestion is not fit to be made, 
 much less sanctioned in any tribunal pretending to ad- 
 minister justice impartially'' 
 
 § 1 14. Chicago, Milwaukee, and St. Paul R. R. Co. v. 
 Ross^ — This case came up from the Circuit Court of the 
 United States for the District of Minnesota. It in- 
 volved the liability of a railway corporation for an injury 
 to one of its servants resulting from the negligence of an- 
 other, and as the deliberate judgment of the Supreme 
 Court of the United States upon this frequently recurring 
 
 » Allen V. New Gas Co., i Exch. » 26 Ind. 74. 
 Div. 251 ; Conway v. Belfast Ry. Co., » 112 U. S. 377. Handed down by 
 
 Ir. R,, 9 C. L. 498 ; Howells v. Lan- the Supreme Court of the United 
 
 dore Sieman's Steel Co., L. R. (10 Q. States, December i, 1884, affirming 
 
 B.) 62; s. C. 44 L. J. (Q. B.) 25; 32 s. C. 8 Fed. Rep. 544, 
 L. T. (N. S.) 19; 23 Week. Rep. 335; 
 31 L. T. (N. S.) 433. 
 
336 MASTER AND SERVANT. [§ II4. 
 
 and most important question, it has attracted much atten- 
 tion and provoked much criticism and comment. It is a 
 little remarkable that the question has never before been 
 squarely presented to the Supreme Court. In the multi- 
 tude of decisions upon this point, we find no Supreme 
 Court case upon the question as here presented, and as it 
 has frequently presented itself in the State courts of last 
 resort. In this state of the matter it was fortunate that a 
 case arose which required that august tribunal to pass 
 upon this precise question, and the opinion is worthy 
 of very careful consideration. The case was a simple 
 one involving nothing but the bare question whether a 
 railway company is liable to a locomotive engineer for 
 the neglect of a train-conductor. The facts were these : 
 The conductor of a freight train, which left Minneapolis 
 at about midnight, neglected to notify the engineer of an 
 order which he had received from the train-dispatcher to 
 stop the train at South Minneapolis until a gravel train 
 coming toward the city and not running on schedule 
 time passed. The engineer, not having received the 
 order, through the negligence of the conductor, and with- 
 out fault on his part, ran his train into the gravel train, 
 and, being injured, sued the company. He had judgment 
 in the court below, and upon a writ of error prosecuted 
 to the Supreme Court of the United States the judgment 
 was there affirmed.^ It appeared in evidence that the 
 conductors of each train were guilty of gross negligence, 
 and that this negligence caused the collision. The court 
 argues that the conductor by virtue of his general control 
 and charge of the train, and of his power and authority to 
 direct the other persons employed with him to move the 
 
 ' Mr. Justice Field delivered the such pre-eminent ability felt compelled 
 
 opinion. Bradley, Matthews, Gray to dissent, for verily the doctrine of 
 
 and Blatchford, JJ., dissenting. It is this case has come to stay, 
 to be regretted that four justices of 
 
§ II4-] MASTER AND SERVANT, 337 
 
 train, represented the company ; that ordinary prudence 
 on his part would have prevented the accident, and that, 
 therefore, the company must be held liable in damages, 
 for his failure to exercise it. The precise point decided 
 in this case is that a conductor of a regular railway train 
 is not a fellow-servant of the other persons employed to 
 run that train, but is the vice-principal, representing the 
 company, for whose negligent acts, when they result in 
 injury to the other employees upon the train, the com- 
 pany is liable, and in arriving at this conclusion the court 
 enters into a very full and discriminating discussion of 
 the general rule. The opinion, in my judgment, con- 
 tains very much the clearest and ablest presentation of 
 the law in this behalf, and the fairest and most satisfac- 
 tory argument upon it to be found in any English or 
 American decision upon the subject. It is certainly en- 
 titled to outrank and to outweigh Farwell v. Boston & 
 Worcester R R. Co.,^ or Bartonshill Coal Co. v. Reid,^ in 
 point of sound logic and right reason, as certainly, it is 
 submitted, as the " Massachusetts doctrine," as it is some- 
 times called, and its trend or tendency, is to be super- 
 ceded and changed in this country by legislation more or 
 less modeled after the English Employers' Liability Act." 
 A Kentucky text-writer may be pardoned for reminding 
 his brethren that the doctrine of the Supreme Court of 
 the United States as expounded in this case is the Ken- 
 tucky doctrine declared many years ago in Louisville & 
 Nashville R R Co. v. Collins,* by our great Chief Justice 
 Robertson, and which has since been the rule in this 
 State. It is certainly the rule of humanity as it may con- 
 fidently be declared the rule of even justice. This late 
 decision of the Supreme Court may be expected to have 
 
 » 4 Mete. 49 ; S. C. 38 Am. Dec. » 43 & 44 Vic., chap. 42. 
 339. * 2 Duv. 114. 
 
 * 3 Macq 295. 
 
 22 
 
338 MASTER AND SERVANT. [§ II5. 
 
 a powerful influence in this country at least, upon the 
 future of the rule regulating a master's liability to a serv- 
 ant for the negligence of another servant. It is contrary 
 to the general course of decision ; but, partly for this rea- 
 son, as well as because of its intrinsic force and reasonable- 
 ness, and because it is the judgment of our high court of 
 appeal, it will have the greater tendency to attract atten- 
 tion and to assist in checking the extension of the rule of 
 non-liability which, already, in some jurisdictions, has pro- 
 ceeded to the extent of holding every possible employee, 
 from a general superintendent entrusted with the entire 
 control of a great business to an office boy, or a porter, a 
 fellow-servant. 
 
 § 1 15. What is common employment, — It is generally 
 held that all servants in the employ of the same master, 
 subject to the same general control, paid from a common 
 fund, and engaged in promoting or accomplishing the 
 same common object, are to be held ffellow-servants in a 
 common employment. In the earlier cases, the term 
 common employment is used to designate the employ- 
 ment of two or more workmen by one master — e. g., the 
 two employees of the butcher in Priestley v. Fowler.^ 
 As soon as the rule became recognized law, the courts 
 were called upon to say what classes of cases the term 
 included. Having established the rule they were asked 
 to apply it, and as case after case arose, it became neces- 
 sary to determine whether it should have a wide or a 
 narrow application. On the one hand it might be held 
 to include only those employees who worked side by 
 side in a similar occupation, as masons building a wall, 
 or carpenters a house, or weavers attending adjacent 
 looms ; and, on the other hand, it might be so extended 
 as to include all employees of every grade who are hired 
 
 * 3 Mees. & W. i. 
 
§ Il6.J MASTER. AND SERVANT. 339 
 
 by the same person, as, all the hands in a factory, or 
 all the employees of a railway corporation ; and, between 
 the two extremes would be found many various degrees, 
 where the rule might be held to include or excludp 
 occupations more or less dissimilar. The chief embar- 
 rassment seems to have been to settle whether it should be 
 strictly confined to persons engaged in similar occupations, 
 or should include any and every occupation however es- 
 sentially unlike. Some courts have done one thing, and 
 some another, and decisions abound excluding and in- 
 cluding almost every mentionable occupation. It is 
 said by a very competent authority, that twenty years 
 ago no more than a dozen cases could be found in which 
 the point is raised. Now, there are hundreds and hun- 
 dreds of wholly irreconcilable decisions in point. No 
 court, as far as my reading has gone, has attempted to 
 define the term, to circumscribe it by metes and bounds, 
 or attempted more than to say that the particular case 
 before it was one where common employment ought or 
 ought not to be a defense. Indeed, the term is one 
 which, from the very nature of the subject, cannot be 
 defined. It is entirely impossible to anticipate all the 
 various kinds of employment in their varying degrees of 
 similarity. In Massachusetts the rule has received its 
 widest developement. The Supreme Judicial Court of 
 that State holds the most liberal views upon this sub- 
 ject,^ and the influence of that independent and excep- 
 tionally able tribunal has, in this particular, been strongly 
 felt throughout the Union, so that, it may be admitted, 
 the Massachusetts rule is the general rule. 
 
 § 116. Illustrations. — It has, under the influence of 
 the Massachusetts doctrine, or otherwise, been held that 
 all the employees of a railway corporation in almost 
 
 ' Shear. & Redf. on Neg., § 102 ; and the Massachusetts cases, supra. 
 
34© 
 
 MASTER AND SERVANT. 
 
 [§ Il6. 
 
 every possible combination or association, are fellow- 
 servants in a common employment, and this, notwith- 
 standing that the negligent servant is of a grade superior 
 to the servant injured, or that the two are employed in 
 entirely distinct and separate departments of the com- 
 mon service — e. g., an engineer of a locomotive and the 
 fireman working with him;^ an engineer and a brake- 
 man on the same train ; ^ an engineer and a brakeman 
 on different trains of the same company ; * an engineer 
 and conductor on the same train ; * an engineer and a 
 switch-tender;" an engineer and a telegraph operator;® 
 an engineer and a track repairer ; '' an engineer and an 
 inspector of the track ; * an engineer and a shoveler on 
 a gravel train ; * an engineer of a switchengine and a 
 car repairer ; ^'' an engineer and a station agent ; " an 
 engineer and a servant employed at a station, whose 
 duties involved the coupling and uncoupling of cars;^* 
 
 ^ Murray v. South Carolina R. R. 
 Co., I McMil. 385 ; s. C. 36 Am. Dec. 
 368. 
 
 « St. Louis, &c., R. R. Co. v. Britz, 
 72 111. 256; Summerhays v. Kansas, 
 &c., R. R. Co., 2 Colo. 284; Sher- 
 man V. Rochester, &c., R. R. Co., 17 
 N. Y. 153; Nashville, &c., R. R. Co. 
 V. Wheless, 10 Lea, 741 ; S. C. 43 
 Am. Rep. 317. 
 
 s Wright V. N. Y., &c., R. R. Co., 25 
 N. Y. 562 ; Louisville, &c., R. R. Co. 
 V. Robinson, 4 Bush. 507; Pitts- 
 burgh, &c., R. R. Co. V. Devinney, 
 17 Ohio St. 197; Randall v. Balti- 
 more, &c., R. R. Co., 109 U. S. 478. 
 See, also. Armour v. Hahn, 1 1 1 Id. 
 313; Hough V. Railroad Co., 100 Id. 
 213. 
 
 * Ragsdale v. Memphis, &c., R. R. 
 Co., 59 Tenn. 426; Slater v. Jewett, 
 8s N. Y. 61 ; S. C. 39 Am. Rep. 627. 
 Contra, Chicago, &c., R. R. Co. v. 
 Ross, 112 U. S. 377. 
 
 " Farwell v. Boston and Worcester 
 R. R. Co., 4 Mete. 49; S. C. 38 Am. 
 Dec. 339. , 
 
 « Slater v. Jewett, 85 N. Y. 61 ; S. 
 C. 39 Am. Rep. 627. 
 
 ' Boldt V. New York, &c., R. R. 
 Co., 18 N. Y. 432; Whaalen v. Mad 
 River R. R. Co., 8 Ohio St. 249; 
 Ohio, &c., R. R. Co. v. CoUarn, 73 
 Ind. 261; S. C. 38 Am. Rep. 134; 
 Gormley v. Ohio, &c., R. R. Co., 72 
 Indi 32. 
 
 ' Waller v. Southeastern Ry. Co., 
 2 Hurl. & C. 102 ; Coon v. Syracuse, 
 &c., R. R. Co., 5 N. Y. 492 ; Lovejoy 
 V. Boston, &c., R. R. Co., 125 Mass. 
 79; S. c. 28 Am. Rep. 206. 
 
 » Ohio, &c., R. R. Co. v. Tindall, 
 13 Ind. 366. See, also, St. Louis, 
 &c., R. R. Co. V. Britz, 72 111. 256. 
 
 10 Chicago, &c., R. R. Co. w. Mur- 
 phy, S3 111. 336; Valtez v. Ohio, &c., 
 R. R. Co., 8s Id. 500. 
 
 ' ^ Evans v. Atlantic, &c., R. R- 
 Co., 62 Mo. 49; Brown v. Minneap- 
 olis, &c., R. R. Co., 23 Am. Law 
 ^^k- 335- See, also, Brown v. Wi- 
 nona, &c., R. R. Co., 27 Minn. 162; 
 S. C. 38 Am. Rep. 285. 
 
 18 Wilson V. Madison, &c., R. R. 
 Co., 81 Ind. 226. 
 
■§ Il6.] MASTER AND SERVANT. 34I 
 
 an engineer and any employee of the railroad company, 
 including, specifically, the general superintendent, the 
 supervisor of the road, a section boss, and a common 
 laborer ; ^ an engineer and the laborers on a gravel or 
 ■construction train ; ^ an engineer and the servants of a 
 contractor, engaged in furnishing wood to the railroad 
 under the contract, being on the train ; * a conductor and 
 a brakeman on the same train ; * a conductor and a 
 brakeman on another train ; ® a conductor of a construc- 
 tion or gravel train and the laborers employed upon the 
 same ; * a conductor and the servants of a contractor 
 working upon his train ; '' a conductor traveling on a 
 train other than his own in going to his post of duty, and 
 the other employees in charge of such train ; ^ a con- 
 ductor and a switchman ; ® a conductor and a fireman ; ^" 
 a conductor and a station baggage master ; " a brakeman, 
 in addition to the relations supra, and another brakeman 
 
 ' Mobile, &c., R. R. Co. v. Smith, &c., R. R. Co., 23 Penn. St. 384; 
 
 59 Ala. 245. This should seem to Chicago, &c., R. R. Co. v. Keefe, 
 
 "be the culmination of the rule as far 47 111. 108 ; O'Connell v. Baltimore, 
 
 as it affects railway corporations. &c., R. R. Co., 20 Md. 212; Ciimber- 
 
 2 Chicago, &c., R. R. Co. v. Keefe, land Coal Co. v. Scally, 27 Id. 589; 
 
 47 111. 108; Ryan v. Cumberland, Rodman v. Mich., &c., R. R. Co., 
 
 &c., R. R. Co., 23 Penn. St. 384. Sup. Ct.,Mich., 1884; 31 Albany Law 
 
 » Illinois, &c., R. R. Co. v. Cox, Jour. 34. Contra, Chicago, &c., R. 
 
 21 111. 20; but not an engineer and a R. Co. v. Swanson, 16 Neb. 254; Id. 
 
 detective in the employ of the railway v. Bayfield, 37 Mich. 205 ; Moon's 
 
 company, walking on the track. Pyne Admr. v. Richmond, &c., R. R. Co., 
 
 ■V. Chicago, Burlington and Quincy 78 Va. 745 ; S. c. 49 Am. Rep. 401 ; 
 
 R. R. Co., 54 Iowa, 223. Lalor v. Chicago, &c., R. R. Co., 52 
 
 * Dow V. Kansas Pacific R. R. 111. 401- 
 Co., 8 Kan. 642; Sherman v. Roch- ' Illinois, &c., R. R. Co. v. Cox, 
 
 <ster, &c., R. R. Co., 17 N. Y. 153; 21 111. 20. 
 
 Hayes v. Western R. R. Co., 3 Cush. » Manville v. Cleveland, &c., R. R. 
 
 370. Co., II Ohio St. 417. See, also, Vick 
 
 6 Pittsburgh, &c., R. R. Co. v. v. New York, &c., R. R. Co., 95 N. 
 
 Devinney, 17 Ohio St. 197. Y. 267; S. C. 47 Am. Rep. 36. 
 
 « Gilshannon v. Stony Brook R. R. » Wilson v. Madison, &c., R. R. 
 
 •Co., 10 Cush. 228; Cassidyr/. Maine, Co., 81 Ind. 226. 
 &c.. R. R. Co., 70 Me. 488 ; Abend ^ » Slater v. Jewett, 85 N. Y. 61 ; S. 
 
 V. Terre Haute, &c., R. R. Co., Sup. C. 39 Am. Rep. 627. 
 Ct., 111., 1884; 20 Cent. L. J. ^^\ Mc- " Colorado, &c.,R. R. Co. v. Mar- 
 
 Gowan v. St. Louis, &c., R. R. Co., tin, Sup. Ct., Colo., 4 W. C. Rep. 
 
 •61 Mo. 528; Ryan v Cumberland, 563; S. C. 19 Am. Law Rev. 163. 
 
342 
 
 MASTER AND SERVANT. 
 
 r§ ii6. 
 
 on the same train ; ' a brakeman and a car inspector;* a 
 brakeman and a train dispatcher;' a brakeman and a 
 switch tender ; * a brakeman and the mechanics in a repair 
 shop, including the inspector of machinery;® a brake- 
 man and a " section boss" ; * a fireman, in addition to the 
 relations supra, and the master-machinist of the railway 
 company ; ^ a fireman and the servants of an independent 
 contractor at work for the company, and being upon the 
 train ; ^ a fireman and a track repairer;® a carpenter or 
 other employees of a railway company, and the men in 
 charge of the train by which they are carried to their 
 work ; ^^ an employee going on a train to his work and a 
 
 1 Hayes v. Western R. R, Co., 3 
 Cush. 270. 
 
 2 Mackin v. Boston, &c., R. R, 
 Co., 135 Mass. 201; s. C. 46 Am. 
 Rep. 456 ; Smith v. Flint, &c., R. R. 
 Co., 46 Mich. 258; S. C. 41 Am. Rep. 
 161 ; Ballou v. Chicago, &c., R. R. 
 Co., 54 Wis. 259; s. C. 41 Am. Rep. 
 31; Michigan, &c., R. R. Co. v. 
 Smithson, 45 Mich. 212; Columbus, 
 &c., R. R. Co. V. Webb, and Rail- 
 road Co. V. Fitzpatrick, Sup. Ct. of 
 Ohio, Ohio Law Jour., Nov. 22, 1884; 
 S. C. 19 Am. Law Rev. 163. Contra, 
 O'Neil V. St. Louis and Iron Moun- 
 tain, &c., R. R. Co., 9 Fed. Rep. 
 337; Smith v. Chicago, &c., R. R. 
 Co., 42 Id. 520. 
 
 ' Robertson v. Terre Haute, &c,, 
 R. R. Co., 78 Ind. 77 ; S. C. 41 Am. 
 Rep. 5S2. 
 
 * Slattery's Admr. v. Toledo, &c., 
 R. R. Co., 23 Ind. 83. 
 
 " Wonder w. Baltimore, &c., R. R. 
 Co., 32 Md. 418; S. C. 3 Am. Rep. 
 143; Basel V. New York, &c., R. R. 
 Co., 70 N. Y. 171 ; cf. Murphy v. 
 Boston, &c., R. R. Co., 88 N. Y. 146; 
 S. C. 42 Am. Rep. 240. Contra, 
 Condon v. Missouri, &c., R. R. Co., 
 78 Mo. 567; Blessing v. Id., 77 Id. 
 410. 
 
 « Slattery v. Toledo, &c., R. R. 
 Co., 23 Ind. 81. Contra, Nashville. 
 &c., R. R. Co. V. Carroll, 6 Heisk! 
 347. See, also. Waller v. Southeast- 
 
 ern Ry. Co., 2 Hurl. & Colt. 102; S. 
 C. 7 Jur. (N. S.) 501 ; 32 L. J. (Exch.) 
 205 ; but not the train-men running 
 a material train, and a section boss; 
 Moon's Admr. v. Richmond, &c., R. 
 R. Co., 78 Va. 745; S. C. 49 Am. 
 Rep. 401. 
 
 ' Columbus, &c., R. R. Co. v. Ar- 
 nold, 31 Ind. 174; but not a fireman 
 and the company's bridge builder; 
 Davis V. Central, &c., R. R. Co., 55 
 Vt. 84; s. C. 45 Am. Rep. 590; Gil- 
 lenwater v. Madison, &c., R. R. Co., 
 5 Ind. 339 ; S. C. 6l Am. Dec. loi, 
 (and note.) 
 
 8 Illinois, &c., R. R. Co. v. Cox,. 
 21 111. 20; cf. Davis V. Central, &c., 
 R. R. Co., supra. 
 
 9 Whaalen v. Mad River R. R- 
 Co., 8 Ohio St. 249; Boldt v. New- 
 York, &c., R. R. Co., 18 N. Y. 432 c 
 Ohio, &c., R. R. Co. v. CoUam, 73 
 Ind. 261; s. C. 38 Am. Rep. 134; 
 King V. Boston, &c., R. R. Co., 9 
 Cush. 112; s. C. 129 Mass. 277, («.) 
 But see, contra, a very carefully con- 
 sidered case, Chicago, &c., R. R. Co. 
 V. Moranda, 93 111. 302; S. C. 34 Am. 
 Rep. 168. 
 
 > " Seaver v. Boston, &c., R. R. Co., 
 14 Gray, 466; Gillshannon v. Stony 
 Brook R. R. Co., 10 Cush. 228; 
 Morgan v. Vale of Neath Ry. Co., 
 5 Best. & S. 736; S. C. L. R. I Q. B. 
 149; 35 L- J. (Q- B.) 23; 13 L. T. 
 (N. S.) 564; 14 Week. Rep. I44r 
 
§ 1 1 7-] MASTER AND SERVANT. 
 
 343 
 
 signal man ; ^ a carpenter at work for a railway company 
 and servants of the company in charge of a turn-table ; * 
 a road master and a common laborer ; * a master and 
 mate of a vessel ; * a " gang boss," or foreman, and an 
 ordinary laborer ; ^ the master of a lighter and one of the 
 crew ; ® the chief engineer on a steam vessel and one of 
 the crew ; '^ an " underlooker " in a mine, whose duty it 
 was to examine the roof of the mine and prop it when 
 dangerous, and one of the miners ; ^ but not a " mining 
 captain " and the miners.' 
 
 § 117. Servants of different masters. — It is generally 
 held that those only are fellow-servants, within the intent 
 of this rule, who are the servants of the same master. 
 " A fellow-servant," says Dalrymple, J., in McAndrews v. 
 
 (affirming S. C. 5 Best & S. 570; 10 * Mathews v. Case, Sup. Ct., Wis., 
 
 Jur. (N. S.) 1074; 33 L. J. (Q. B.) Nov. 25, 1884. See, also, Connolly 
 
 260; 13 Weekly Rep. 1031); Tunney v. Davidson, 15 Minn. 519; S. C. 2 
 
 V. Midland Ry. Co., L. R. i C. P. Am. Rep. 154. 
 
 291 ; S. C. 2 Jur. (N. S.) 691 ; Vick ' Keystone Bridge Co. v. Newberry, 
 
 V. New York, &c., R. R. Co., 95 N. 96 Penn. St. 246; S. C. 42 Am. Rep. 
 
 Y. 267 ; S. C. 47 Am. Rep. 36 ; Brick 543. See, also, Mitchell v. Robin- 
 
 V. Rochester, &c., R. R. Co., 98 N. son, 80 Ind. 281 ; S. C. 41 Am. Rep. 
 
 Y. 211. G7«/ra, O'Donnell v. AUe- 812; Houser w. Chicago, &c., R. R. 
 
 gheny, &c., R. R. Co., 59 Penn. St. Co., 60 Iowa, 230; s. c. 46 Am. Rep. 
 
 239; Gillenwaterz/. Madison, &c., R. 65; and contra. Railroad Co. v. 
 
 R. Co., 5 Ind. 339; S. C 61 Am. Bowler, 9 Heisk. 866; Luebke v. 
 
 Dec. 161. Chicago, &c., R. R. Co., 59 Wis. 127; 
 
 ' Moran v. New York, &c., R. R. S. C. 48 Am. Rep. 483 ; East Ten- 
 Co., 3 N. Y. 770. nessee, &c., R. R. Co. v. Duffield, 12 
 
 ^Morgan v. Vale of Neath Ry. Lea, 63; s. C. 47 Am. Rep. 319; 
 
 Co., supra; cf. Killea v. Faxon, 125 Guthrie t/. Louisville, &c., R. R. Co., 
 
 Mass. 485; Colton v. Richards, 123 11 Lea. 372; S. C. 47 Am; Rep. 286; 
 
 Id. 484; Kelley v. Norcross, 121 Id. Dowling v. Allen, 74 Mo. 13; S. C. 
 
 508. 41 Am. Rep. 298. 
 
 ' Lawler v. Androscoggin, &c.. R. ' Johnson v. Boston Towboat Co., 
 
 R. Co., 62 Me. 463; S. C. 16 Am. 135 Mass. 209; s. C 46 Am. Rep. 
 
 Rep. 492; Brown v. Winona, &c., 458. 
 
 R. R. Co.,, 27 Minn. 162; s. C. 38 ' Searle v. Lindsay, 11 C. B. (N. 
 
 Am. Rep. 285 ; and cf. Foster v. S.) 429. 
 
 Minnesota. &c., R. R. Co., 14 Minn. » Hall v. Johnson, 3 Hurl. & C. 
 
 360 ; [but it is otherwise as to a road- 589 ; cf. Kelly v. Howell, 41 Ohio 
 
 master and a fireman ; Davis v. Ver- St. 246. 
 
 mont, &c, R. R. Co., 55 Vt. 84; S. » Ryan v. Bagaley, 50 Mich. 179; 
 
 C. 45 Am. Rep. 590. See, also, Ryan S. C. 45 Am. Rep. 35. 
 V. Bagaley, 50 Mich. 179; S. C. 45 
 Am. Rep. 35.] 
 
344 MASTER AND SERVANT. [§ II 8. 
 
 Burns,^ " I take to be any one who serves and is controlled 
 by the same master." Whenever a definition of the term 
 fellow-servant is attempted, it is made an essential ele- 
 ment of the relation, that it include only servants of the 
 same master.^ In the very nature of the case, under the 
 rule of non-liability, the relation of fellow-servants to the 
 same master must actually subsist, if the master is to escape 
 responsibility for the negligence of his servant, or the rule 
 to have any proper application. If, when the negligence 
 of one servant injures another, it cannot be made clearly 
 to appear that the servant injured and the servant whose 
 fault occasioned the injury are the servants of the same 
 master, then the rule does not apply, and the injured per- 
 son will be free to seek his remedy under some other rule 
 of law. It is obvious that, in the majority of cases, this 
 question cannot arise. It will usually happen that the 
 fact of a common master will be beyond dispute ; but, in 
 a class of cases a difficulty in this respect presents itself 
 which we now proceed to consider. 
 
 § 1 1 8. The rule stated. — It is generally held that the 
 employees of an independent contractor are not fellow- 
 servants of the employees of the proprietor for whom the 
 contractor is engaged to work. If, therefore, the em- 
 ployee of such contractor is injured through the negli- 
 gence of a servant of the proprietor, the maxim re- 
 spondeat superior usually applies, and the proprietor is 
 liable in damages for the injury.® 
 
 It is accordingly held, that the servant of a lighterman, 
 at work upon his master's barge unloading a ship, is not 
 
 1 39 N. J. Law, 119. 5 Hurl. & N. 142 ; s. C. 6 Jur. (N. S.) 
 
 8 Smith V. New York, &c., R. R. 53, 8 Week. Rep. 181. 
 
 Co., 19 N. Y. 132; Svenson v. At- « Smith v. New York, &c., R. R. 
 
 lantic Steamship Co., 57 N. Y. 112; Co., 19 N. Y. 127; Svenson v. Steam- 
 
 Crussellew. Pugh, 67 Ga. 430; s. c. ship Co., 57 Id. 108; Burke v. Nor-. 
 
 44 Am. Rep. 724; Shear. & Redf. on wich, &c., R. R. Co., 34 Conn. 474; 
 
 Neg., § 116; Abraham v. Reynolds, Young v. New York, &c., R. R. Co., 
 
§ Il8.J MASTER AND SERVANT. 
 
 345 
 
 a fellow-servant with one of the crew ; ^ but, where a 
 steamship company employed a stevedore to unload its 
 vessels, and this stevedore employed his own men, and 
 used his own machinery, when one of the crew was in- 
 jured through the fault of one of his servants, it was held 
 in Pennsylvania a proper question for the jury, whether 
 this stevedore was a servant of the steamship company, 
 or a contractor, and whether or not the injured servant 
 was a fellow-igervant.^ So, also, it is held that the servants 
 of a contractor, and those of a sub-contractor, are not 
 co-servants within the meaning of this rule.* 
 
 The rule as here stated is unquestionably sound and 
 just. Upon what principle of right can the servants of 
 one man, be held to be the fellow-servants of another 
 man's servants ? If the servant be held by his implied 
 contract, to assume all the risks of the negligence of his 
 co-servant, is not this the end of his contract ? How 
 can he be held to assume the risk of the negligence of 
 any other man's servants, with whom he may chance to 
 be employed or associated } How can he exercise any 
 influence upon such servants, or what duty does he owe 
 to their master, to report delinquencies if he happen to 
 discover them ? Upon what principle can he be held to 
 sustain any relation to them ? Is he not a mere stranger ? 
 
 30 Barb. 229 ; Woodley v. Metropoli- Penn. St. 269 ; s. C. 32 Am. Rep. 462, 
 
 tan Ry. Co., 2 Exch. Div. 284 (dis- but see, Riley z/. State Line Steamship 
 
 senting opinions of Mellish & Baggal- Co. 29 La. Ann. 791 ; S. C 29 Am. 
 
 lay J.J.); Abraham v. Reynolds, 5 Rep. 349. 
 
 Hurl. & N. 142; s. C. 6 Jur. (N. S.) » Hunt v. Penn. &c., R. R. Co., 51 
 
 53, 8 Week. Rep. 181 ; Swainson v. Penn. St. 474; Goodfellow v. Boston, 
 
 Northeastern Ry. Co., 3 Exch. Div. &c., R. R. Co., 106 Mass. 461; Cur- 
 
 341; Lake Superior Iron C8. z/. Erick- ley w. Harris, 11 Allen, 113; Murphy 
 
 son, 39 Mich. 492; S. C. 33 Am. Rep. v. Caralli, 3 Hurl. & C. 462; s. C. 10 
 
 423. And see. particularly, Devlin v. Jur. (N. S.) 1207, 34 L. J. (Exch.) 14, 
 
 Smith, 89 N. Y. 470; s. C. 42 Am. 13 Week. Rep. 165; Murray 7/. Currie, 
 
 Rep. 311 ; Coggin v. Central, &c., R. 6 L. R. (C. P.) 24; S. C. 40 L. J. (C. P.) 
 
 R. Co., 62 Ga. 685 ; S. C. 35 Am. Rep. 26, 23 L. T. (N. S.) 557, 19 Week. Rep. 
 
 132. 104, and compare, Devlin v. Smith, 
 
 > Svenson v. SttAmshvp Co., supra. 89 N. Y. 470; S. C. 42 Am. Rep. 311. 
 
 ' Haas V. Phila. Steamship Co., 88 
 
346 MASTER AND SERVANT. [§ I TQ. 
 
 Is not the rule as laid down in some late Massachusetts 
 and English cases the perfection of injustice ? In these 
 cases it is plainly declared that a servant is to be held 
 to assume the risk, not only of the carelessness of all the 
 other employees of his master, but of all the servants of 
 all the various persons or corporations with whom he 
 may be associated in any work assigned him, and a mas- 
 ter is held free from liability, in almost every concievable 
 set of circumstances, for the negligence of his servant, 
 though operating to injure persons with whom he is not 
 the most remotely connected, upon the bare fact being 
 shown that his servant and the injured person were, in 
 some more or less intimate way, associated in labor. 
 Under the operation of the rule as announced in these 
 cases, a servant is absolutely remediless, and a master 
 absolutely free from liability, for the most aggravated 
 negligence of his employees. For practical purposes, 
 the rule might as well be made absolute by statute, so 
 perfectly is the ancient rule of respondeat superior set 
 aside as to master and servant in cases of this nature.^ 
 
 § 119. As between different railway corporations 
 having running connections. — Where the servants of one 
 railway company have been injured by reason of the neg- 
 ligence of the servants of another railway company, there 
 existing between the two companies an arrangement by 
 which one company runs its cars over the tracks of the 
 other company, or one forms a junction with the other, 
 by which the roads of the two companies constitute the 
 whole, or some part of a trunk, or through line, or by 
 which one uses the railway station of the other, we find 
 the authorities for the most part consistent in holding 
 
 ' Albro V. Agawam Canal Co., 6 Ii2 Id.4cio; Wiggettw. Fox, 11 Exch. 
 
 Cush. 75; Johnson z'. Boston, 118 832; s. C. 2 Jur. °N. S.) 955, 25 L. J. 
 
 Mass. 114; Connors w. Hennessy, 112 Exch. i88. 
 Id. 96 ; Harkins v. Sugar Refinery, 
 
§ I20.] MASTER AND SERVANT. 347 
 
 that in such a case, the employees of the two roads are 
 not fellow-servants, and that either company is liable to 
 the servants of the other for the negligence of its own 
 servants.^ 
 
 § 120. As to volunteers. — There are a number of strik- 
 ing English cases upon this branch of the subject. In 
 Degg V. Midland Ry. Co.,'' it is held that, when one vol- 
 untarily assists the servant of another, in an emergency,, 
 he cannot retover from the master, for an injury caused 
 by the negligence or misconduct of the servant, and the 
 reason assigned is, that a stranger cannot by his officious 
 conduct impose upon an employer a greater duty than 
 that which he owes to his employees in general. This is 
 the rule as to a mere volunteer, and it seems also to be 
 the law in this country.* But wherever there is a tem- 
 porary employment of a bystander, in an emergency, by 
 a servant, who may be held to have had the authority to 
 contract for the assistance, the master will be liable if 
 
 1 Smith V. New York, &c., R. R. 70 Ga. 464; S. C. 48 Am. Rep. 574; 
 
 Co., 19 N. Y. 127; Taylor v. Western Abbott v. Johnstown, &c., R. R. Co., 
 
 Pacific R. R. Co., 45 Cal. 423; Penn- 80 N. Y. 27; s. C 36 Am. Rep. 572. 
 sylvania Co. z'. Gallagher, 40 Ohio St. * i Hurl. & N. 773; s. c. 3 Jur, 
 
 637; S. C. 48 Am. Rep. 689; Carroll (N. S.) 395, 26 L. J. (Exch.) 171. 
 V. Minnesota, &c., R. R, Co., 13 Minn. ' Flower i/. Penn. &c., R. R. Co., 
 
 30; Sawyer v. Rutland, &c., R. R. 69 Penn. St. 210; s. C. 8 Am. Rep. 
 
 Co., 27 Vt. 370. Contra, Mills v. 251 ; New Orleans, &c., R. R Co. v. 
 
 Alexandria, &c., R. R. Co., 2 Mc- Harrison, 48 Miss. 112; s. c. 12 Am. 
 
 Arthur, 314; Cruty v. Erie Ry. Co., Rep. 356; Everhart v. Terre Haute, 
 
 3 N. Y., Sup. Ct. (T. & C.) 244. See, &c., R. R. Co., 78 Ind. 292; s. c. 41 
 
 also, Warburton v. Great Western Am. Rep. 567 ; Honor v. Albrighton, 
 
 Ry. Co.,L.R. 2Exch.3o, s. C.36L. J. 93 Penn. St. 475; Osborne v. Knox, 
 
 (Exch.) 9, IS L. T. (N. S.) 361, 15 &c., R. R.Co., 68 Me. 49; s. c. 28 
 
 Week. Rep. 108, 4 Hurl. & Colt, 695. Am. Rep. 16. Compare Pennsylvania 
 
 Nor can a railway escape liability by Co. v. Gallagher, 40 Ohio St. 637 ; S. 
 
 an agreement of lease, placing its em- c. 48 Am. Rep. 689; Kelly v. John- 
 
 ployees and trains under the control son, 128 Mass. 530; s. C. 35 Am. 
 
 of the manager of another road. Wa- Rep. 398 ; Brown v. Byroads, 47 Ind. 
 
 bash, &c., R. R. Co. v. Peyton, 106 435; Central R. R. Co., of Ga. v. 
 
 111. 534; S. C. 46 Am. Rep. 705, but, Sears, 53 Ga. 630. See, also, McCul- 
 
 see, Foley w. Chicago, &c., R. R.Co., lough v. Shoneman, loj Penn. St. 
 
 48 Mich. 622 ; S. C. 42 Am. Rep. 481 ; 169. 
 Singleton v. Southwestern R. R. Co., 
 
348 MASTER AND SERVANT. [§ I20. 
 
 such an assistant is injured by the negligence of his 
 servants.^ 
 
 The justness of the rule in general is beyond dispute. 
 When the service is entirely voluntary, the volunteer may 
 reasonably be held to assume the risks of his undertak- 
 ing, and the employer may properly be held not to owe 
 him any duty. And, even though the service be not vol- 
 untary, as where an employee of a railway company, a 
 conductor of a freight train at a way station, compelled 
 a bystander — a mere lad — by a threat, to uncouple some 
 cars, and the boy's leg was run over and cut off, the com- 
 pany was held not liable.^ But, where one assists the 
 servants of another, at their request, for the purpose of 
 expediting his own business, or the business of the mas- 
 ter, the rule is otherwise, and if he is injured by the serv- 
 ant's negligence, the master is liable. In such a case the 
 relation of fellow-servants is held not to exist ; and, in case 
 of injury, the rule of respondeat superior applies.® 
 
 Accordingly we find, in Wright v. London & North- 
 western Ry. Co.,* that, where the plaintiff had shipped 
 a heifer by defendant's railway, and, upon the arrival of 
 the train at the station, was assisting in shunting the 
 horse-box, in order to avoid delay in getting the heifer 
 out, and while so assisting was run against and hurt, 
 the defendant was held liable. There was evidence that 
 there was an insufficient number of servants at hand to 
 unload the heifer promptly, and that the stationmaster 
 knew that the plaintiff was assisting in the shunting, and 
 
 1 Bradley ». New York, &c., R. R. » Holmes v. North Eastern Ry. Co., 
 
 Co., 62 N. Y. 99, and compare, Terre L. R. 4 Exch. 254, affirmed L. R. 6 
 
 Haute, &c., R. R. Co. w. McMurray, Exch. 123. [This is a case, says Chief 
 
 98 Ind. 358; s. C. 49 Am. Rep. 752; Justice Coleridge, of the greatest au- 
 
 Louisville, &c., R. R. Co. v. McVay, thority, in, that seven judges in the 
 
 98 Ind. 391 ; s. c. 49 Am. Rep. 770. Exchequer Chamber afSrmed the de- 
 
 8 New Orleans, &c., R. R. Co. v. cision, for the reasons given by the 
 
 Harrison, 48 Miss. 1 12, on the ground judges in the Court of Exchequer], 
 
 that the conductor's act was out of the * i Q. B. Div. 252 ; s. C. L. R., 10 
 
 line of his duty. Q. B. 298. 
 
§§ 121, 122.] MASTER AND SERVANT. 349 
 
 assented to it. The court held that in such a case as this 
 the plaintiff was not a mere volunteer, but that he was 
 on the defendants premises with their consent, assisting- 
 their servants for the purpose of hastening the delivery 
 of his own goods, and that hence they were liable to him 
 for the negligence of their servants.^ 
 
 § 121. Partnerships and receivers as employers. — A 
 servant who is employed by a partnership concern, and 
 is injured by the negligence of a member of the firm, if 
 the work is within the scope of the partnership business, 
 may have his action against the firm.* So, also, it is held 
 that the receiver of an insolvent corporation, being in 
 control of the property, is answerable in his official capac- 
 ity to employees, for injuries, whenever the corporation 
 itself would otherwise be liable.^ 
 
 § 122. The obligation of the master. — "The only 
 ground," said the Court of Appeals, of New York, in 
 Warner v. Erie Ry. Co.,* "of liability of a master to 
 an employee, for injuries resulting from the careless- 
 ness of a co-employee, which the law recognizes, is that 
 which arises from personal negligence, or from want of 
 
 > Wright V. London, &c., Ry. Co., gage car to assist in getting out his 
 supra. See, also. Potter v. Faulkner, baggage, and was negligently run over 
 I Best & S. 800; S. C. 8 Jur. (N. S.) and killed while so doing, was allowed 
 259, 31 L. J. (Q. B.) 30, 10 Week, his action against the company], 
 Rep- 93i 5 L. T. (N. S.) 455 [wherein ^ Ashworth v. Stanwix. 3 El. & El. 
 a plaintiff recovered nothing, being 701 ; S. C. 7 Jur. (N. S.) 467, 30 L. J. 
 held a mere volunteer]; Cleveland v. (Q. B.) 183, 4 L. T. (N. S.) 85; Con- 
 Spier, 16 C. B. (N. S.) 398 [wherein a noUy v. Davidson, 15 Minn. 519; S. C. 
 passerby, being appealed to, by work- 2 Am. Rep. 1 54. See, also, Zeigler 
 men upon a gas pipe in a street, for in- v. Day, 123 Mass. 152. 
 formation, and being injured by their ' Meara's Admr. v. Holbrook, 20 
 negligence while giving the informa- Ohio St. 137; S. C 5 Am. Rep. 633. 
 tion, it was held that he was something See, also, Slater v. Jewett, 85 N. Y. 
 more than a mere volunteer, and might 61 ; S. C. 39 Am. Rep. 627. [In this 
 recover from the master of the work- case such an action is brought against 
 men] ; and Ormond v. Hayes, 60 Texas, a receiver of the Erie railway, and the 
 1 80 [wherein a passenger upon a rail- right to bring it, is not questioned], 
 way train, who, upon arriving at his * 39 N. Y. 468. 
 destination, went forward to the bag- 
 
350 MASTER AND SERVANT. [§ 1 23. 
 
 proper care and prudence in the management of his af- 
 fairs, or the selection of his agent or machinery and appli- 
 ances." ■ This is a complete statement of the rule as now 
 established. It appears accordingly that the master's lia- 
 bility in this regard is three-fold : 
 
 (a.) for his own personal negligence ; 
 
 ((5.) for defective or dangerous machinery, appliances, 
 tools, or premises ; 
 
 (c.") for incompetent or unfit servants. 
 
 We have considered the first of these in a former sec- 
 tion,^ and it is not necessary here to do more than sug- 
 gest the rule. We may, therefore, proceed to consider 
 the liability of the master to an employee for — 
 
 § 123. Defective, dangerous, or unfit machinery, ap- 
 pliances, tools, or premises. — In general, a master is bound 
 to exercise ordinary care in respect of the machinery, ap- 
 pliances, tools, materials and premises, which he furnishes 
 to his servants, for the prosecution of the work required 
 of them. If he fail in this regard, and injury result, 
 he is liable. It is his duty not to require his servants to 
 work for him on dangerous premises, or in dangerous 
 buildings, or with dangerous tools, machinery, materials, 
 or appliances. If the servant is injured while in the dis- 
 charge of his duty, and without his own contributory 
 fault, through the master's dereliction in this respect, the 
 servant may have his action against him.* Personal neg- 
 ligence is the gist of the action, and it must, therefore, 
 appear, to render the master liable, that he knew, or from 
 the nature of the case ought to have known, of the unfit- 
 ness of the means of labor furnished to the servant, and 
 that the servant did not know, or could not reasonably 
 
 ' § 95. s^lpra. Railway Co., 100 U. S. 213, and cases 
 
 2 See upon this point, Mr. Justice cited in the reporter's note, 
 arlan's learned opinion in Hough v. 
 
§ 123.] 
 
 MASTER AND SERVANT. 
 
 351 
 
 be held to have known of the defect. Knowledge on 
 the part of the employer, and ignorance on the part of 
 the employee are of the essence of the action ; or, in other 
 words, the master must be at fault and know of it, and 
 the servant must be free from fault, and ignorant of his 
 master's fault, if the action is to lie. The authorities all 
 state the rule with these qualifications.^ 
 
 1 Wright V, New York, &c.. R. R. 
 Co., 25 N. Y. 562 ; Booth V. Boston, 
 &c., R. R. Co.,' 67 Id. 593; s. C. 73 
 N. Y. 38; 29 Am. Rep. 97 ; Murphy 
 V. Boston, &c. R. R. Co., 88 N. Y. 
 146; S. C. 42 Am. Rep. 240; Laning 
 •». New York, &c., R. R. Co., 49 N. Y. 
 521 ; S. C. 10' Am. Rep. 417; Ryan v. 
 Fowler, 24 N. Y. 410; Fuller v. Jew- 
 ett, 80 Id. 46; S. C. 36 Am. Rep. 575 ; 
 Vosbuigh V. Lake Shore, &c., R. R. 
 Co., 94 N. Y. 374; s. C. 46 Am. Rep. 
 148; Cone V. Delaware, &c., R. R. 
 Co., 81 N. Y. 206 ; S. C. 37 Am. Rep. 
 491 ; Flike v. Boston, &c., R. R. Co.. 
 53 N. Y. 549; S. C. 13 Am. Rep. 545; 
 Corcoran v. Holbrook, 59 N. Y. 519; 
 Hickey v. Taa£fe, Ct. of App. of N. Y. 
 June 2, 1885, I Eastern Reporter, 7 ; 
 Hawley v. New York, &c., R. R. Co., 
 82 N. Y. 370; Daley w. Shaaf, 28 Hun, 
 314; Ellis V. New York, &c., R. R. 
 Co., 95 N. Y. 546; Holden v. Fitch - 
 burg R. R. Co. (an instructive and 
 learned opinion by Gray, C. J.), 129 
 Mass. 268 (and many cases there cited ; 
 S. C. 2 Am. & Eng. Ry. Cases, 94-, Ford 
 v. Fitchburg R. R. Co., no Id. 240; 
 Cayreri/. Taylor, 10 Gray, 274; Snow 
 w.Housatonic, &c., R. R. Co., 8 Allen, 
 441; Hackett v. Manfg. Co., loi 
 Mass. loi; Arkersonw. Dennison, 117 
 Id. 407; Walsh w. Peet Valve Co., no 
 Id. 23; Wheeler v. Wason Manfg. 
 Co., 135 Id. 294; Magee v. Boston 
 Cordage Co., Sup. Jud. Ct.. Mass., 
 June 20, 1885, I Eastern Reporter, 
 126; Baker v. Allegheny R. R. Co., 
 95 Penn. St. 211 ; S. C. 40 Am. Rep. 
 634; Patterson v. Pittsburgh, &c., R. 
 R. Co., 76 Penn. St., 389; S. C. i8 Am. 
 Rep. 412 ; Johnson v. Bruner, 61 Penn. 
 St., 58 ; O'Donnell v. Allegheny R. R. 
 Co., 59 Id. 239; Ardesco Oil Co. v. 
 
 Gilson, 63 Id. 146; Riley w. State Line 
 Steamship Co., 29 La. Ann. 791 ; S. C. 
 29 Am. Rep. 349 ; Greenleaf w. 111., &c., 
 R. R. Co., 29 Iowa, 14; Muldowney 
 V. Id. 39 Id. 615; Tuttlez*. Chicago, 
 &c., R. R. Co , 48 Id. 236; Brann v. 
 Id., 53 Id. 595; Baldwin v. Raiboad 
 Co , 50 Id. 680 ; Way v. Illinois, &c., 
 R. R. Co., 40 Id. 341 ; Hallower v. 
 Henley, 6 Cal. 209 ; McGlynn v. Bro- 
 die, 31 Id. 376; Baxter I/. Roberts, 44 
 Id. 187; Sullivan v. Louisville Bridge 
 Co., 9 Bush, 81 ; Quaid v. Cornwall, 
 13 Id. 601 ; Hayden v. Manfg. Co.. 29 
 Conn. 549; St. Louis, &c., R. R. Co. 
 V. Valirius, 56 Ind. 512; Columbus, 
 &c., R. R. Co. V. Arnold, 31 Id. 174; 
 Thayer v. St. Louis, &c., R. R. Co., 
 22 Id. 26; Indianapolis, &c., R. R. 
 Co. V. Love, 10 Id. 554; Shanny z/. 
 Androscoggin, &c., R. R. Co., 66 Me. 
 420; Buzzellw. Manfg. Co., 48 Id. 113; 
 Wonder v. Baltimore, &c., R. R. Co., 
 32 Md. 41 1 ; S. C. 3 Am. Rep. 143 ; 
 Cumberland R. R. v. Hogan, 45 Id. 
 229; Hardy w. Carolina, &c., R. R. 
 Co., 76 N. C. 5 ; Cowles v. Richmond, 
 &c., R. R. Co., 84 Id; 309 ; s. C. 37 
 Am. Rep. 620; Fifield v. Northern, 
 &c., R. R. Co., 42 N. H. 225; Har- 
 rison V. Central R. R. Co., 31 N. J. 
 Law, 293 ; Paulmier v. Erie Ry. Co., 
 34 Id. 151 ; Smith v. Oxford Iron Co., 
 42 Id. 467; S. C. 36 Am. Rep. 535; 
 Manfg. Co. v. Morrissey, 40 Ohio St. 
 148; s. C. 48 Am. Rep. 669; Colum- 
 bus, &c., R. R. Co. V. Webb, 12 Id. 
 475 ; Mad River R. R. Co. v. Barber, 
 5 Id. 541; Guthrie v. Louisville &c., 
 R. R. Co., 1 1 Lea, 372 ; s. C 47 Am. 
 Rep. 286; East Tennessee, &c., R. 
 R. Co. V. Duffield, 12 Id. 63; 47 Am. 
 Rep. 319; Nashville, &c., R. R. v. 
 Jones, 9 Heisk. 27 ; Id. v. Elliott, i 
 
352 
 
 MASTER AND SERVANT. 
 
 [§ 124. 
 
 § 124. The master's duty as to machinery, &c., a con- 
 tinuing duty. — Not only must the master furnish safe and 
 suitable means and facilities to his servants, for perform- 
 ing the work he requires of them, but the law imposes 
 upon him the additional duty of taking care that this 
 machinery, and these tools and instrumentalities of labor 
 are kept in a safe and proper condition. Having pro- 
 vided safe and suitable machinery, the master's duty is 
 not done. He cannot remain passive. He must con- 
 tinue to take ordinary care, and see to it that the machin- 
 ery is properly inspected, and kept in repair, and in no 
 way allowed to grow dangerous or unfit by use.^ 
 
 Caldw. 61 1 ; Atchison, &c., R. R. Co. 
 V. Holt, 29 Kan. 149; Id. v. Moore, 
 29 Id. 632 ; Noyes v. Smith, 29 Vt. 
 59; Hathaway v. Michigan, &c., R. 
 R. Co., 51 Mich. 253; S. C. 47 Am. 
 Rep. 569; Foley v. Chicago, &c., 
 R. R. Co., 48 Mich. 622; S. C. 42 
 Am. Rep. 481 ; Botsford v. Michigan, 
 &c., R. R. Co., 33 Id. 256; Fort 
 Wayne, &c., R. R. Co. v. Gilder- 
 sleeve, 33 Id. 134; Michigan, &c., R. 
 R. Co. V. Smithson, 45 Id. 212; Hui- 
 zega V. Cutler, &c., Lumber Co., 51 
 Id. 272 ; Houston, &c., R. R. %i. Dun- 
 ham, 49 Texas, 181 ; Id. v. Oram, 49 
 Id. 341 ; International R. R. Co. v. 
 Doyle, 49 Id. 190; Hobbs v. Stauer 
 Sup. Ct., Wis., 1885, xix Albany Law 
 Jour. 490; Wedgewood v. Chicago, 
 &c,, R. R. Co., 41 Wis. 478; s. C. 44 
 Id. 44; Dorsey v. Phillips, &c., Co., 
 42 Id. 583; Ballou V. Chicago, &c., 
 R. R. Co., 54 Id. 259; S. C. 41 Am. 
 Rep. 31 ; Flannagan v. Railroad Co., 
 45 Wis. 98 ; s. C. 50 Id. 462 ; Chicago, 
 &c., R. R. Co. V. Russell, 91 111. 298; 
 Indianapolis, &c., R. R. Co. v. Toy, 
 91 Id. 474; S. C. 33 Am. Rep. 57; 
 Toledo, &c., R. R. Co. w. Asbury, 84 
 111. 429 ; Indianapolis, &c., R. R. Co, 
 V. Flanigan, ^^ Id. 365; Columbus, 
 &c., R. R. Co. V. Troesch, 68 Id. 545 ; 
 S. c. 18 Am. Rep. 578; Chicago, tfec, 
 R. R. Co. V. Jackspn, 55 111. 492; 
 Illinois, &c., R. R. Co. v. Welch, 52 
 Id. 183; Chicago, &c., R. R. Co. v. 
 
 Swett, 45 Id. 197; Missouri Furnace 
 Co. V. Abend, 107 Id. 44; s. C. 47 
 Am. Rep. 425 ; East, &c., R. R. Co. 
 V. Hightower, 92 111. 139; Le Claire 
 V. First Div., &c., R. R. Co., 20 Minn. 
 9; Greene v. Minneapolis, &c., R. R. 
 Co., 31 Id. 248; s. c. 47 Am. Rep. 
 785 ; Flynn v. Kansas, &c., R. R. Co., 
 98 Mo. 19s; S. "C. 47 Am. Rep. 99; 
 Dowling V. Allen, 74 Mo. 13 ; S. C. 41 
 Am. Rep. 298; Stoddard w. St. Louis, 
 &c., R. R. Co.. 65 Mo. 514; Dalez-. 
 St. Louis, &c., R. R. Co., 63 Id. 455; 
 Conroy v. Iron Works' Co., 62 Id. 35; 
 Porter v. Hannibal, &c., R. R. Co., 
 60 Id. 160; Lewis v. St. Louis, &c., 
 R. R. Co., 59 Id. 495; Devitt v. Pa- 
 cific, &c., R. R. Co., 50 Id. 302; Gib- 
 son V. Id. 46 Id. 163 ; S. C. 2 Am. Rep. 
 497 ; Brickman v. South Carolina, &c., 
 R. R. Co., 8 S. C. 173 ; Holland v. 
 Chicago, &c., R. R. Co., 5 McCrary, 
 549; Dillon V. Union Pacific R, R. 
 Co., 3 DUl. 319; Jones v. Yeager, 2 
 Id. 64; Woodworthz/. St. Paul, &c., 
 R. R. Co., 5 McCrary, 574; Patterson 
 V. Wallace, i Macq. 748 ; Clarke v. 
 Holmes, 6 Hurl & N. 349 ; s C. 7 Id. 
 937 ; Marshall v. Stewart, 2 Macq. 30 ; 
 Griffith's V. London, &c.. Docks Co., 
 50 L. T. (N. S.) 755; s. C. 12 Q. B. 
 Div. 493. Judgment affirmed in the 
 High Court of Appeal, June 24, 1884. 
 1 Fuller V. Jewett, 80 N. Y. 46 ; s. 
 C. 36 Am. Rep. 575; Laning v. New 
 York, &c., R. R. Co., 49 N. Y. 521 ; 
 
■§ 124.] MASTER AND SERVANT. 353 
 
 The duty of maintaining machinery in repair, for the 
 protection and safety of employees, is the same in kind 
 as the duty of furnishing a safe and proper machine in 
 the first instance, and an employer is equally chargeable, 
 "whether the negligence was in originally failing to pro- 
 vide, or in afterwards failing to keep the machinery in 
 safe condition. This rule has been somewhat modified 
 in recent decisions affecting the liability of railway com- 
 panies for injjiries to their employees from the defective 
 condition of cars received by them from other roads in the 
 usual course of business, for transportation. If these cars 
 come into their possession in apparent good order, it has 
 been held that the receiving company is under no obliga- 
 tion as to its employees to inspect them, and is not liable 
 for injuries to them occasioned by defects in such cars.^ 
 
 This is a harsh rule, and the reasoning upon which 
 these cases are based is not satisfactory. In O'Neil v. 
 St. Louis Iron Mountain & Southern Ry. Co.,^ it is de- 
 nied by Treat, D. J., in the Circuit Court of the United 
 States, for the Eastern District of Missouri. In this case 
 it is held that where an accident occurs to an employee, 
 from such a cause, he may recover from the company, the 
 court sturdily insisting upon the importance of holding 
 
 S. C. 10 Am. Rep. 417; Warner v. ^ Ballou v. Chicago, &c., R. R. 
 Erie Ry. Co., 39 Id. 468; Brick v. Co., 54 Wis. 259; s. C. 41 Am Rep. 
 Rochester, &c. R. R. Co., 98 N. Y. 31 ; Smith v. Flint, &c., R. R. Co , 46 
 211; Ford V. Fitchburg, R. R. Co., Mich. 258; Michigan, &c., R. R. Co. 
 no Mass. 246; S. C. 14 Am. Rep. w. Smithson, 45 Id. 212; Maclcin v. 
 598; Shanny v. Androscoggin Mills, Boston, &c., R. R. Co , 135 Mass. 201 ; 
 66 Me 420 ; Brann v. Chicago. &c.,R. Baldwin v. Chicago, &c., R. R. Co.. 50 
 R. Co., 53 Iowa, 595; Solomon R. R. Iowa, 680. See, also, Davis v. De- 
 Co. V. Jones, 30 Kan. 601 ; Atchison, troit, &c., R. R. Co., 20 Mich. 105; 
 &c.,R.R.Co. z'.Holt,29ld. 149; Con- Hulett z/. St. Louis, &c., R R. Co., 
 doni-.Mo. Pac. R. R. C0..78 Mo. 5675 67 Mo. 240; Lovejoy v. Boston, &c., 
 Kain v. Smith, 25 Hun, 149 ; Toledo, R. R. Co., 125 Mass. 79; s. c. 28 Am. 
 &c., R. R. Co. V. Moore, ^^ 111. 217; Rep. 206; Foley v. Chicago, &c., R. 
 Hough w. Railway Co., 100 U. S. 213.; R. Co . 48 Mich. 622; s. C. 42 Am. 
 Holden v. Fitchburg R. R. Co., 129 Rep. 481. 
 Mass. 268 ; Oilman v. Eastern R. R. * 9 Fed. Rep. 337. 
 Co., 13 Allen, 440; Pierce on Rail- 
 roads, § 370. 
 
 23 
 
354 MASTER AND SERVANT. [§ 1 25. 
 
 employers to a strict account in the matter of injuries to 
 their employees. 
 
 § 125. Master must provide safe and good, hut not 
 the safest and best appliances. — We have seen that the 
 law requires the master to furnish safe and reasonably 
 good machinery to his servant, and to keep that machin- 
 ery in reasonably good order ; or, in other words, that 
 the law imposes upon an employer the duty of ordinary 
 care, both as to furnishing the instrumentalities of labor, 
 and also as to keeping them in repair. And here, it is 
 necessary to be careful not to go further. The law 
 imposes no further or higher obligation upon an em- 
 ployer than this. As a general rule he is not under 
 obligation to make use of the safest appliances and 
 instruments, nor to change his machinery with every new 
 invention, nor to introduce every supposed improvement 
 in appliances.^ 
 
 In Kelley v. Silver Spring Co.,^ it is held that where 
 an employer has kept imperfect and unfenced machinery 
 in use for a long time, and it has been safely used by his 
 employees, he is not liable in damages for an injury to 
 one of them, occasioned by its unfitness.* While, per 
 contra, some courts go to the other verge of the rule and 
 hold that railway companies, in equipping their roads 
 
 1 Wonder v. Baltimore, &c., R. R. Devitt v. Pacific, &c., R. R. Co., 50 
 
 Co., 32 Md. 4U ; s. C. 3 Am. Rep. Mo. 302 ; East Tennessee, &c., R. R. 
 
 143; Jones V. Granite Mills, 126 Co. z/. Duffield, 12 Lea, 63; S. C. 47 
 
 Mass. 84; Keith v. Id., 126 Id. 90; Am. Rep. 319; Dynen v. Leach, 26 
 
 Ft. Wayne, &c., R. R. Co. v. Gilder- L. J. (Exch.) 221. 
 
 sleeve, 33 Mich. 133 ; Mad River R. R. » 12 R. 1. 1 12 ; S. C. 34 Am. Rep. 
 
 Co. V. Barber, 5 Ohio St. 541 -. Burke v. 615. 
 
 Witherbee, 98 N. Y. 562 ; Western, » See, also, Sullivan v. India Man- 
 
 &c,, R. R. Co. V. Bishop, 50 Ga. ufacturing Co., 113 Mass. 396; Burke 
 
 465; Leonard v. Collins, 70 N. Y. 90; v. Witherbee, 98 N. Y. 562; Haydeu 
 
 Botsford V. Michigan, &c., R. R. Co., v. Manfg. Co., 29 Conn. 548; Hobbs 
 
 33 Mich. 256; Ladd v. New Bedford, v. Stauer, Sup. Ct., Wis., 19 Am. Law 
 
 &c., R. R. Co., 119 Mass. 412; s. C. Rev. 690; Schroederw. Michigan Car 
 
 20 Am. Rep. 331; Greenleaf v. lUi- Co., Sup. Ct., Mich., Jan. 28, 1885, 
 
 nois, &c., R. R. Co., 29 Iowa, 14; 32 Alb. Law Jour. 134. 
 
§ 126.] MASTER AND SERVANT. 355 
 
 with freight cars, as between those that are more and 
 those that are less dangerous in their construction, are 
 bound to use the safer kind, and are responsible to their 
 employees if they do not.^ 
 
 Either extreme is within the rule. The obligation of 
 the master is to act in good faith, with ordinary care, 
 and whether the rule shall be more or less stringently 
 applied will depend upon the circumstances of each case. 
 In some avocations, good faith and ordinary care alike 
 may justify the continued use of very primitive and inef- 
 ficient apparatus ; in others, nothing short of the most 
 perfect appliances may be justifiable. The courts will 
 hardly ever be in danger of misapplying so simple and so 
 reasonable a rule.^ 
 
 § 126. Master not a guarantor of the safety, or suffi- 
 ciency, of his appliances. — Neither is the master to be 
 held to insure the safety, or sufficiency, of his machinery. 
 His duty is fully discharged when he has furnished 
 proper appliances and instrumentalities, and while he 
 keeps them in ordinary repair. The test of his liability, 
 therefore, is not the question : " Was the machinery abso- 
 lutely safe ? " nor, " Could the master have done anything 
 which he did not do to render it safe ? " but, " Did the 
 master exercise ordinary care?" "Did he do anything 
 affecting the safety of the machinery, which, in the exer- 
 cise of ordinary care, he should not have done ; or did 
 he omit anything that ordinary prudence dictates ? " * 
 
 » Greenleaf v. Illinois, &c., R. R. Pacific R. R. Co., 100 U. S. 213; i 
 
 Co., 29 Iowa, 14; St. Louis, &c., R. Redf. on Railways, 521, note; Whar- 
 
 R. Co. w. Valirius, 56 Ind. 511. See, ton on Neg.,§§2ll, 212, 213; Ma- 
 
 also, Toledo, &c., R. R. Co. v. ginnis v. Canada Southern Bridge 
 
 Wand, 48 Id. 476 ; Hegeman «/. West- Co., 49 Mich. 171; Batterson v. Chi- 
 
 em, &c., R. R. Co., 13 N. Y. 9; cago, &c., R. R. Co., 49 Id. 184. 
 
 Smith V. New York, &c., R. R. Co., « Leonard v. Collins, 70 N. Y. 90; 
 
 19 Id. 127. Indianapolis, &c., R. R. Co. v. Toy, 
 
 2 See the luminous opinion of Mr. 91 111. 474; Ladd v. New Bedford, 
 
 Justice Harlan in Hough w. Texas and &c., R. R. Co., 119 Mass. 412; In- 
 
356 MASTER AND SERVANT. [§ I 2 7. 
 
 It is obvious that, were the master the warrantor of 
 the machinery in his" factory, or the tools and appliances 
 which he furnished to his servants — if he were held, as to 
 his servants, to guarantee that no harm should come 
 from defects or faults in the instrumentalities employed 
 in performing their labor, there would be no end to his 
 liability. It would be a most mischievous doctrine. The 
 possibility of injury from machinery, under the rule of 
 law requiring ordinary care in respect to it from the 
 master, is one of the proper risks that the servant takes 
 into account when he enters the service. The tendency 
 of one or two of the State courts to extend the rule as 
 to the responsibility of the master in this regard until it 
 shall amount, for practical purposes, to a warranty of all 
 his tools and machinery and premises, is, in the writer's 
 opinion, without any sound basis in the reason of the 
 case, and it may easily be believed that such a rule, as a 
 rule, would be as nearly wholly bad as any rule of law 
 is ever likely to be.^ 
 
 § 127. Incompetent and unfit employees. — The respon- 
 sibility of a master to each of his servants for the com- 
 petency and fitness of the other servants he employs to 
 work with them, is, in every way, analogous to the duty 
 he owes them in regard to the machinery and all the 
 other instrumentalities he furnishes for the performance 
 of the work. As it is his duty to furnish only safe facil- 
 
 dianapolis, &c., R. R. Co. v. Love, Co. w. Swett, 45 111. 197; Hayden v. 
 10 Ind. 554; Devlin v. Smith, 89 N. Smithville Manfg. Co., 29 Conn. 548. 
 Y. 470; S. C. 42 Am. Rep. 31 1 ; East » See East., &c., R. R. Co. v. High- 
 Tenn., &c., R. R. Co. v. Duffield, tower, 92 111. 139; Indianapolis, &c., 
 12 Lea, 63; S. C. 47 Am. Rep. 319; R. R. Co. v. Toy. 91 111 474; War- 
 Hard V. Vermont, &c., R. R. Co., 32 ner v. Erie Ry. Co., 49 Barb. 558; S. 
 Vt. 473; Wood's Master and Servant, c. 39 N. Y. 468; Steffen v. Chicago, 
 696, Skerritt v. Scallan, 11 Ir. C. L. &c., R. R. Co., 46 Wis. 259; Morri- 
 R. 389; Ormond v. Holland, El., Bl. son v Construction Co., 44 Wis. 405; 
 & El. 102; Shear & Redf. on Neg., Smith v. Chicago, &c.. R. R. Co.. 42 
 § 87. See, also, Chicago, &c., R. R. Wis. 520; DeGraff z/. New York, &c., 
 
 R.R. Co.,76N.Y. 125. 
 
§ 128.] MASTER AND SERVANT. 357 
 
 ities for the work, in the shape of tools, machinery, 
 premises, etc., and to use ordinary care, as we have shown, 
 to keep them in a safe and sound condition, so the law 
 imposes upon him the duty, as toward his servants, of 
 seeing to it that only competent and suitable persons are 
 employed to perform his work in association with them. 
 And here, also, the measure of his obligation is ordinary 
 care. He must take ordinary and reasonable precautions 
 not to employ reckless, dissipated or incompetent ser- 
 vants for positions where their fault may injure their 
 fellow-servants, and if he fail to do this, he is liable in 
 case of such an injury.^ 
 
 So the master is liable if his servant is injured, 
 not through the unfitness or incompetence of a fellow- 
 servant, but because an insufficient number of servants 
 are provided to do the required work properly, and with 
 due regard to the safety of those performing it. Itis 
 equally wrong to hire too few as to hire unfit servants. 
 The master must provide servants enough in every 
 instance to do his work.^ 
 
 § 128. The duty as to servants also a continuing 
 duty. — As in the matter of machinery, etc., so, in regard 
 to servants, the master must not only use ordinary care 
 in hiring only such as are fit and competent and reason- 
 
 1 Cowles V. Richmond, &c., R. R. Mo. 167 ; Frazier v. Penn., &c., R. 
 
 Co., 84 N. C. 309; S. C. 37 Am. Rep. R. Co., 38 Penn. St. 104. 
 
 620; Laning v. New York, &c., R. * Booth v. Boston, &c., R. R. Co., 
 
 R. Co., 49 N. Y. 521; Illinois, &c., 73 N. Y. 38; S. C. 29 Am. Rep. 97; 
 
 R. R. Co. V. Welch, 52 111. 183; Flike W.Boston, &c., R. R. Co., 53 
 
 Houston, &c., R. R. Co. v. Oram, 49 N. Y. 549; S. c. 13 Am. Rep. 545; 
 
 Texas, 341 ; Tyson v. North Ala- Chicago, &c., R. R. Co. v. Taylor, 69 
 
 bama,&c., R. R.Co., 61 Ala. 554; S. 111. 461 I S. C 18 Am. Rep. 626; 
 
 C. 32 Am. Rep. 8; Noyes v. Smith, Luebke v. Chicago, &c., R. R. Co., 
 
 28 Vt. 63 ; Cayzer v. Taylor, 10 Gray, 59 Wis. 1 27 ; S. C. 48 Am. Rep. 483 ; 
 
 274; McMahonz/. Davidson, 12 Minn. Lake Shore, &c., R. R. Co. v. Laval- 
 
 357 ; Hogan v. Central Pac , &c., R. ley, 36 Ohio St. 221 ; Smith v. Chi- 
 
 R. Co., 49 Cal. 128; Davis v. De- cago. &c., R. R. Co., 42 Wis. 526; 
 
 troit, &c., R. R. Co., 20 Mich 105; Vose v. London and Yorkshire Ry. 
 
 Moss -v. Pacific, &c., R. R: Co., 49 Co., 2 Hurl. & N. 728. 
 
358 MASTER AND SERVANT. [§§ 1 29, I30. 
 
 ably skillful, but it is his duty not to retain a servant in 
 his employ when he discovers him to be unfit for the 
 place he occupies. It is as wrong to retain an unfit 
 servant as to employ one at the start, and this is the rule 
 when a servant, who was originally competent and skill- 
 ful when employed, has become, subsequently, either from 
 habits of intemperance, or from any other cause, incom- 
 petent, or habitually careless and reckless.^ 
 
 § 129. Themasternot held to warrant the faithful- 
 ness or competency of his servants. — Again, as has appeared 
 in regard to machinery, the master does not warrant the 
 competency and faithfulness of any of his servants to the 
 rest. His liability is not of so strict a nature as this. His 
 duty in the matter of employing and retaining and watch- 
 ing over his servants is measured by the rule of ordinary 
 carefulness and prudence, and when he has selected them 
 with discretion, and omitted nothing that prudence dic- 
 tates in overseeing them, he has done what the law re- 
 quires of him." 
 
 § 1 30. The master m,ay act through an agent and be- 
 come responsible for his acts. — Obviously, an employer may 
 
 1 Laning v. New York, &c., R. R. Co., 5 Ind. 339; s. c. 6i Am. Dec. 
 
 Co., 49 N. Y. 521 ; s. C. 10 Am. Rep. loi. 
 
 417; Columbus, &c., R. R. Co; v. » Tarrant 7/. Webb, 18 C. B. 797; 
 Troesch, 68 111. 545; s. C. 18 Am. Ormond v. Holland, EL, Bl. & El., 
 Rep. 578; Chapman v. Erie Ry. Co., 102; Indianapolis, &c., R. R. Co. v. 
 SS N. Y. 579; Corson v. Maine, &c., Love, 10 Ind. 554 ; Faulkner v. Erie 
 R. R. Co., 76 Me. 244; Baulec z/. Ry. Co., 49 Barb 324; Columbus, &c.. 
 New York, &c., R. R. Co., 59 N. Y. R. R. Co. v. Troesch, 68 111. 545; S. 
 356 ; S. C. 5 Lans. 436 ; 62 Barb. 623 ; c. 18 Am. Rep. 578 ; Beaulieu v. Port- 
 17 Am. Rep. 325 ; Michigan, &c., R. land Co., 48 Me. 291 ; Moss v. Pacific, 
 R. Co. V. Dolan, 32 Mich. 510; Shan- &c., R. R. Co., 49 Mo. 167; S. C. 8 
 ny V. Androscoggin Mills, 66 Me. Am. Rep. 126; Blake v. Maine, &c., 
 418; Illinois, &c., R. R. Co. v. Jew- R. R. Co., 70 Me. 60; S. C. 35 Am. 
 ell, 46 111. 99. See, also, Curran v. Rep. 297 ; Lawler w. Androscoggin R. 
 Merchant's Manufacturing Co., 130 R. Co., 62 Me. 467; s. C. 16 Am. 
 Mass. 374; s. c. 39 Am. Rep. 457; Rep. 492. See, also. Cotton w. Ed- 
 Ohio, &c., R. R. Co. V. CoUam, 73 wards, 123 Mass. 484; Cummings v. 
 Ind. 261; s. C. 38 Am. Rep. 134; Grand Trunk Ry. Co.. 4 Cliff. 478. 
 Gillenwater v. Madison, &c., R. R. 
 
•§ 13^'] MASTER AND SERVANT. 
 
 359 
 
 perform all his duties in respect of his machinery and his 
 employees through agents, and will, in such a case, be 
 lesponsible for their acts. In this respect a corporation 
 stands on the same footing as an individual, and both are 
 equally bound to use, with respect of employees and 
 machinery, such care and prudence as the nature and 
 dangers of their business require. If either entrust 
 their duties to an agent they are equally responsible if 
 injury results from the improper acts of their representa- 
 tive.^ 
 
 § 131. The rule as to minor servants. — The i"ule of law 
 which exempts an employer from liability to one of his 
 employees for an injury occasioned by the fault of a co- 
 employee, proceeding upon the theory of the implied 
 contract that the servant takes the risks of his employ- 
 ment, has been applied in many jurisdictions to minor 
 servants. Assuming that an adult employee does tacitly 
 contract with' his employer that if he is injured through 
 the carelessness of a fellow-employee he will bear the 
 consequences, the rule, in all its strictness, has been held 
 to apply to children ten, twelve and fourteen years old, 
 injured without any contributory carelessness through the 
 carelessness of some other so-called fellow-employee, with 
 whom, in some instances, they had no association or 
 connection. If this rule has any substantial basis it is 
 the basis of an implied contract. Upon no other 
 
 ' Michigan, &c.,R. R. Co.w. Dolan, v. New York, &c., R. R. Co., 2 Lans. 
 32 Mich. 510; Corcoran v. Holbrook, 506; affirmed, 49 N. Y. 672; Wilson 
 59 N.Y. 517; Crispin I/. Babbitt, 81 N. v. Willimantic, &c., Co., 50 Conn. 
 Y. 516 ; S. C. 37 Am. Rep. 521 ; Mitch- 433; S. C. 47 Am. Rep. 653; Cowles 
 ell V. Robinson, 80 Ind 281 ; S. C. 41 v. Richmond, &c., R. R. Co., 84 N. C. 
 Am. Rep. 812 ; Flike -u. Boston, &c., 309 ; Magee v. Boston Cordage Com- 
 R. R. Co., 53 N. Y. 549 ; S. C 13 pany. Sup. Jud. Ct., Mass., June 20, 
 Am. Rep. 545 ; Ryan v. Bagaley, 50 1885, i Eastern Reporter, 126; Gunter 
 Mich. 179; s. C. 45 Am. Rep. 35; v. Graniteville Manfg. Co., 18 S. C. 
 Tyson v. North Ala., &c., R. R. Co., 362; s. C. 44 Am. Rep. 573. Corn- 
 el Ala. 554; Harper v. Indianapolis, pare § i\o^ supra. 
 &.Z., R. R. Co., 47 Mo. 567; Brickner 
 
360 MASTER AND SERVANT. [§ 1 3 1. 
 
 ground yet suggested is it for an instant tenable. In- 
 asmuch as minors are not bound by their express con- 
 tracts with their employers,* having, in contemplation of 
 law, no power to make a contract, it is not plain upon 
 what theory this rule can in justice be held to apply- 
 to them. If the policy of the law refuses to bind a 
 minor by his own deliberate express contract to his 
 employer, much more, it is submitted, should the policy 
 of the law refuse to fix upon an employee of tender 
 years so onerous and artificial an implied contract as 
 this. The law in this regard is in a very unsatisfactory 
 condition. It is held that the fact of infancy does not 
 alter or modify the rule, and in this position, as in very 
 many of the others tending to extend the rule, the 
 Massachusetts Supreme Judicial Court takes the lead.* 
 
 Even in those cases in which the facts were suck 
 that a judgment for the infant plaintiff was sustained,, 
 and in which the master was held to a somewhat higher 
 degree of responsibility and care as to his infant em- 
 ployees, the rule itself is not questioned. It is in every 
 such case that 1 have found, assumed to be the law 
 that under a proper state of facts an infant employee 
 can, neither less nor more than an adult, recover for in- 
 juries that befall him through the carelessness of his 
 co-employees.* 
 
 1 Read, as to this point, 2 Kent's O'Connor v. Adams, 120 Id. 427;. 
 
 Com. 193; Gartland v. Toledo, &c., Fones v. Phillips, 39 Ark. 17; S. C. 
 
 R. R. Co., 67 111. 498; Nashville, 43 Am. Rep. 264; Brown w. Maxwell, 
 
 &c., R. R. Co. V. Elliott, I Caldw. 6 Hill. 592; s. C. 41 Am. Dec. 771 ; 
 
 611 ; Fones v. Phillips 39 Ark. 17; S. Gartland v. Toledo, &c., R. R. Co., 
 
 C. 43 Am. Rep. 264; Wood v. Fen- 67 111. 498 ; Hayden v. Manfg. Co.,29- 
 
 wick, 10 Mee. & W. 195; Keane -v. Conn. 548; Nashville, &c.. R. R. 
 
 Boycott, 2 Henry B. 511 ; R. w. St. Co. v. Elliott, 1 Coldw. 611; Ohio, 
 
 Petroix, 4 T. R. 196; R. v. Arundel, &c., R. R.'Co. v. Hammersley, 28 
 
 5 Mau. & Sel. 257 ; R. v. Chillesford, Ind. 371 ; cf. Hickey v. Taaffe, Ct. of 
 
 4 Bam. & C. 94. App., N. Y., June 2, 1885, i Eastern 
 
 * King V. Boston. &c., R. R. Co., 9 Reporter, 7, a decision under the New 
 
 Cush. 112; Curran v. Manfg. Co., 130 York statute designed to protect minor 
 
 Mass. 374 ; S. C. 39 Am. Rep. 457 ; Sul- servants, 
 
 livan^/. India Manfg. Co., 113 Id. 396 ; » Hill v. Cast, 55 Ind. 45; Coombs. 
 
§§ 132, 1 33-] MASTER AND SERVANT. 36 1 
 
 § 132. Where the master orders the servant into dan- 
 ger, or into a service which he did not contract to per- 
 form. — If the master order the servant into danger, or 
 into a service other than that for which he was employed, 
 his obedience will not, as a matter of law, be negligence ; 
 in case he is injured in such an undertaking, and for such 
 an injury, it is held that the master is liable. So, also, has 
 the servant his action when he is exposed to some sudden 
 or unusual danger, by the master's neglect, in performing 
 his work.^ Efut where a servant wanders voluntarily away 
 from his post of duty, prompted by curiosity or idleness, 
 and is injured, he has no remedy.^ 
 
 § 133. The patent and latent dangers of the employ- 
 ment. — It follows almost necessarily from what has gone 
 before, in view of the consideration that a master is not 
 to be held to warrant the safety of the machinery he 
 furnishes to his servants, but that the measure of his 
 responsibility in regard to- it is ordinary care and pru- 
 dence, that a master is not liable to an employee for 
 latent defects in the tools, machinery, materials or 
 
 V. New Bedford Co., 102 Mass. 572; Harney, 28 Ind. 28; Fairbank v. 
 
 S. C, 3 Am. Rep. 506; Dowling z/. Haentzsche, 73 111. 237; Lalor z/. Chi- 
 
 AUen, 74 Mo. 13; S. C. 41 Am. Rep. cago, &c., R. R. Co., 52 Id. 40*; 
 
 298; Wood's Master and Servant,? 349; Bradley v. New York, &c., R. R. Co., 
 
 Fort z/. Union Pacific R. R. Co., 2 Dill. 62 N. Y. 99: Patterson v. Pittsburgh, 
 
 259; S. C. 17 Wall. 553 ; Atlanta Cot- &c., R. R. Co., 76 Penn. St. 394; S. 
 
 ton Factory z/. Speer, 69 Ga. 137; S. C. 18 Am. Rep. 412; Dowling v. 
 
 C.47 Am. Rep. 750; Grizzle v. Frost, Allen, 74 Mo. 13; S. C. 41 Am. Rep. 
 
 3 Fost. & Fin. 622 ; Britton v. Great 298 ; Miller v. Union Pacific R. R. 
 
 Western Co., L. R. 7 Exch. 130; An- Co., 4 McCrary, 115 ; Thompson v. 
 
 derson v. Morrison, 22 Minn. 274. Chicago, &c., R. R. Co., 4 Id. 629. 
 
 ' Mann v. Oriental Print Works, 11 Contra. Cummings v. Collins, 61 Mo. 
 
 R. I. 153; Chicago, &c., R. R. Co. 520; Williams z'. Churchill, 137 Mass. 
 
 V. Bayfield, 37 Mich. 205 ; Berea Stone 243. 
 
 Co. V. Kraft, 31 Ohio St. 287; s. C. * Wright v. Rawson, 52 Iowa, 329; 
 
 27 Am. Rep. 510; Fort z/. Union Pa- S. C. 35 Am. Rep. 275; Sinclair v. 
 
 cific R. R. Co., 17 Wall. 553; s. C 2 Berndt, 87 111. 174; Honor v. Al- 
 
 Dill. 259; Anderson z/. Morrison, 22 brighten, 93 Penn. St. 475; Texas, 
 
 Minn. 274; Luebke v. Chicago, &c., &c., R. R. Co, v. Vallie, 60 Texas, 
 
 R. R. Co., 59 Wis, 127; s. C. 48 Am, 481 ; Batchelorz'. Fortescue, 11 L. R. 
 
 Rep. 483; Chicago, &c., R. R. Co. v. Q. B. Div. 474- 
 
362 MASTER AND SERVANT. [§ 1 33. 
 
 appliances furnished for the work. If an injury befalls 
 an employee by reason of a defect which ordinary 
 inspection and oversight would not, or did not detect, 
 ordinary care in the premises having been exercised, 
 then the master is not liable. It is one of the assumed 
 risks of the employment.^ 
 
 It is the theory of the decisions that the servant 
 takes the risk only of what may be denominated " seen 
 dangers," but by this is understood nothing more than 
 that a servant is entitled, when there is any danger 
 connected with the machinery or employment in which 
 he is engaged and which ordinary inspection and care- 
 fulness on his part will not enaible him to avoid, to 
 have it distinctly announced to him. It is meant that, 
 as to such danger, it is particularly the duty of the 
 employer to warn him. He is plainly entitled to have 
 them pointed out when he enters upon the service. 
 When this is done in good faith they become a part of 
 his contract, but for any failure in this regard, when in- 
 jury ensues, the master is liable ; ^ and the obligation to 
 warn the employee of danger is the greater in proportion 
 as the employee is inexperienced and in need of the 
 caution, and greater as to minor employees than to 
 .^dults.' Accordingly, it is held that wherever the em- 
 
 » Malone v. Hathaway, 64 N. Y. 5 ; gheny R. R. Co., 95 Penn. St. 21 1 ; S. 
 
 S. C. 21 Am. Rep. 573; Georgia, &c., c. 40 Am. Rep. 634; Smith w. Oxford 
 
 R. R. Co. V. Kenney, 58 Ga. 485; Iron Co., 42 N. J. Law. 467; S. C. 36 
 
 Ladd V. New Bedford, &c., R. R. Co., Am. Rep. 535 ; Coombs v. New Bed- 
 
 119 Mass. 412; s. C. 20 Am. Rep. ford, &c., Co., 102 Mass. 585; s. c. 3 
 
 331; Ford V. Fitchburg R. R. Co., Am. Rep. 506; Spelman v. Fisher 
 
 no Id. 240; S. C. 14 Am. Rep. 598; Iron Co., 56 Barb. 151; Paulmier v. 
 
 Riley v. Steamship Co., 29 La. Ann. Erie Ry. Co., 34 N. J. Law, 151 ; Sul- 
 
 791; S. C. 29 Am. Rep 349; Murphy livan v. India Manfg. Co., 113 Mass. 
 
 ■V. Boston, &c., R. R. Co., 88 N. Y. 396; International, &c., R. R. Co. v. 
 
 146; s. c. 42 Am. Rep. 240; Read- Doyle, 49 Texas, 190. 
 head v. Midland' Ry. Co., L. R. 2 Q. B. » Parkhurst v. Johnson, 50 Mich. 
 
 412. 70; s. c. 45 Am. Rep. 28; Coombs 
 
 * Parkhurst v. Johnson, 50 Mich. v. New Bedford, &c., Co., 102 
 
 70; s. C. 45 Am. Rep. 28; Swoboda Mass. 585; O'Connor v. Adams, 120 
 
 -z/. Ward, 40 Id. 420 ; Baker v. AUe- Id. 427 ; Wood's Master and Servant, 
 
§ 1 34-] MASTER AND SERVANT. 363 
 
 ployee's means of information are equal to or greater 
 than those of his emplowr, the employer will be excused 
 from giving the warning, and will not be liable in case of 
 injury from a defect of that sort.^ 
 
 But this is, perhaps, but little more than to say that 
 the servant, as well as the master, is bound to ordinary 
 care. For patent defects the master, as a rule, is not 
 liable, and in one case at least it is held that they need 
 not be pointed out, even to minor employees.^ 
 
 § 134. Overhead railway bridges, depot roofs, &c. — 
 Among " seen dangers," or patent defects, some courts 
 have classed such railway bridges as have covers or over- 
 head frame-work, so constructed that a man standing 
 upon the top of a freight car cannot pass under them 
 without being struck. There are a number of cases 
 which, in substance, have held that it is neither negligent 
 nor criminal for a railway company to build bridges in 
 this way ; that such structures are among the ordinary 
 risks of the employment of freight train-men ; that, when 
 they are informed of the existence and situation of such 
 bridges, they must be held to assume the risk of being 
 hit by them, and that, therefore, when they are hit and 
 killed, or injured by them, it is the result of their own 
 negligence for which the company is not liable. The 
 duty of freight train-men requires them, or some of them, 
 
 § 349 ; Sullivan v. India Manfg. Co., ployees for patent defects in tools 
 
 113 Mass. 396; Grizzle v. Frost, 3 furnished them, the tool being in each 
 
 Fost. & Fin. 622 ; Fort v. Pacific, &c , case a maul or hammer, and the de- 
 
 R. R. Co., 17 Wall. SS4 ; S. C 2 Dill, feet in one case being of such a char- 
 
 359. acter, that the servant might have seen 
 
 * Georgia, &c., R. R. Co. v. Ken- it if he had looked. Guthrie v. Louis- 
 
 ney, 58 Ga. 485 ; Mad River R. R. ville, &c., R. R. Co , 1 1 Lea. 372 ; s. 
 
 Co. V. Barber, 5 Ohio St. 541. C. 47 Am. Rep. 286, and in the other, 
 
 2 Fones w. Phillips, 39 Ark, 17; S. of such an obvious nature, that the 
 
 C. 43 Am. Rep. 264, a decision not servant used it only under protest, 
 
 to be commended. See, also, two re- East Tennessee, Virginia & Geor- 
 
 cent Tennessee cases, wherein a rail- gia R. R. Co. v. Duffield, 12 Lea, 63; 
 
 way company is held liable to eni- S. C. 47 Am. Rep. 319. 
 
364 MASTER AND SERVANT. [§ 1 35. 
 
 to be upon the top of the cars much of the time when 
 the train is in motion ; they must stand erect, and go 
 rapidly from one car to another, in the night as well as 
 in the day-time. If the roof or overstructure of the 
 bridge is so low that it will strike a brakeman standing 
 erect upon the top of his train, it is an essentially murder- 
 ous contrivance, and it is not creditable to our jurispru- 
 dence that such buildings are not declared a nuisance. 
 There is nothing in the reports worse than the cases that 
 sustain the railway corporations in building and maintain- 
 ing these man-traps. Such bridges are, notwithstanding 
 all that can be urged against them, lawful structures in 
 New Jersey, New York, Maryland, Missouri, Pennsyl- 
 vania, and, by a very recent decision, in Virginia.^ 
 
 § 135. Injuries to train-men in coupling cars. — It is 
 not, as has already appeared, negligence in se to engage 
 in a dangerous occupation, or to do dangerous work.* 
 It is accordingly held not negligence as a matter of law, 
 for a brakeman to make dangerous couplings of freight 
 cars ; * nor even to go between the cars while the train is 
 in motion to couple or uncouple them.* While it is the 
 
 ' Baylor v. Delaware, &c., R. R. R. R. Co., 5 McCrary, 465; Chicago, 
 
 Co., 40 N. J. (Law), 23; s. C. 29 Am. &c., R. R. Co. v. Russell, 91 111. 298; 
 
 Rep. 208; Owen v. New York, &c., S. C. 33 Am. Rep. 54; Sewell v. City 
 
 R. R. Co., I Lans. 108. [See, also, of Cohoes, 75 N. Y. 45; s. c. 31 Am. 
 
 Gibson v. Erie Ry. Co., 63 N. Y. 449; Rep. 418; Warden v. Old Colony R. 
 
 S. C. 20 Am. Rep. 552]; Baltimore, R. Co., 137 Mass. 204. 
 
 &c., R. R. Co. V. Strickler, 51 Md. '^ § 12, supra, and § 139 infra. 
 
 47; S. C. 34 Am. Rep. 291 ; Devitt v. " Baird v. Chicago, &c., R. R. Co., 
 
 Pacific, &c., R. R. Co., 50 Mo. 302; 61 Iowa, 359; Beems v. Id., 58 Id. 
 
 Rains w. St. Louis, &c., R. R. Co., 71 150; Pennsylvania Co. v. Long, 94 
 
 Mo. 164; s. C. 36 Am. Rep. 459; Ind. 250. Compare Farley v. Chi- 
 
 Pittsburgh, &c., R. R. Co. v. Sent- cago, &c., R. R. Co., 56 Iowa, 337; 
 
 meyer, 92 Penn. St. 276; s. C. 37 Am. Missouri, &c., R. R. Co. v. HoUey, 30 
 
 Rep. 684; Clark's Admr. v. Rich- Kan. 465. 
 
 mond, &c., R. R. Co., 78 Va. 709; * Snow v. Housatonic R. R. Co., 8 
 
 s. c. 49 Am. Rep. 394. See, also, Allen, 441 ; Beems v. Chicago, &c., R. 
 
 Lovejoy v. Boston, &c., R. R. Co., R. Co., 58 Iowa, 150. But see, contra 
 
 125 Mass. 79; S. C. 28 Am. Rep. 206; Williams v. Iowa, &c., R. R. Co., 43 
 
 Wells w. Burlington, &c., R. R. Co., Iowa, 396; Marsh v. South Carolina 
 
 S6 Iowa, 520; Hall v. Union Pacific R. R. Co., 56 Ga. 274. 
 
§ 1 35-] MASTER AND SERVANT. 365 
 
 duty of train-men to observe the condition of the cars or 
 other appliances with which they are required to work ; ^ 
 and although it is negligent in them voluntarily and un- 
 necessarily to use defective or dangerous tools or machin- 
 ery,'' still, in rushing in between moving cars to make a 
 coupling, it is not negligent in a brakeman to assume 
 that the bumpers are in proper condition, and to act upon 
 that assumption.^ He must, however, obey all the rules 
 prescribed by the company, with respect to couplings, 
 looking to his safety and convenience ; a failure in any 
 respect to do this is such negligence upon his part, as 
 will wholly prevent a recovery in the event of an injury 
 of which such disobedience upon his part may be regarded 
 a cause ; as, for an example, omitting to use a stick in 
 making the coupling, as the rule required, if the require- 
 ment of the rule had been properly brought to his knowl- 
 edge ; * or, uncoupling cars while in motion, in violation 
 of the company's rule.° 
 
 In general, any negligence upon the part of a brake- 
 man, in making couplings, if it amount to a want of ordi- 
 nary care, contributing proximately to cause the injury, 
 will prevent a recovery from the company.* In Georgia 
 it is held negligent for a conductor to make couplings, it 
 being the duty of the brakeman, unless, in some emerg- 
 ency, it be especially necessary for the conductor to do 
 
 ' Lake Shore, &c., R. R. Co. v. ' Lockwood v. Chicago, &c., R. R. 
 
 McCormick, 74 Ind. 440. Co., 55 Wis. 50. 
 
 * Umback v. Lake Shore, &c., R. * Muldowney v. Illinois, &c., R. R. 
 R. Co., 83 Ind. 191 : Perigo v. Chi- Co., 39 Iowa, 615; Chicago, &c., R. 
 cago, &c., R. R. Co., 55 Iowa, 326; R. Co. v. Ward, 61 111. 130; Rileyv. 
 Jackson z/. Kansas, &c,, R. R. Co., 31 Connecticut, &c., R. R. Co., 135 
 Kan. 761. Mass. 292; Toledo, &c., R. R. Co. 
 
 2 King V. Ohio, &c., R. R. Co., 11 v. Asbury, 84 111. 429; Sears v. Cen- 
 
 Biss. 326; Wedgwood v. Chicago, tral, &c., R. R. Co., 53 Ga. 630; 
 
 &c., R. R. Co., 41 Wis. 478. See, Cunningham v. Chicago, &c., R. R. 
 
 also, Texas, &c., R. R. Co. v. Mc- Co., 5 McCrary, 465 ; Kresanowski ?/. 
 
 Atee 61 Texas, 695. Northern Paciiic R. R. Co., S Id. 528; 
 
 * Fay V. Minneapolis, &c., R. R. Hallikan v. Hannibal, &c., R. R. Co., 
 Co., 30 Minn. 231; Hulett w. St. Louis, 71 Mo. 113; Sweeney !». Boston, &c. 
 &c., R. R. Co., 67 Mo. 239. R. R. Co., 128 Mass. 5. 
 
366 MASTER AND SERVANT. [§ 1 36. 
 
 it.^ But when the cars are so constructed, the bumpers 
 being of different heights, or being in any other respect 
 so made, that the slightest indiscretion on the part of the 
 operative will prove fatal to him, it has been held that 
 when injury results from such causes, the company is 
 liable.'' "The machinery and cars," says the Supreme 
 Court of Illinois, " furnished for use, should not be so un- 
 skilfully constructed that the slightest indiscretion on the 
 part of the operatives would prove fatal." * 
 
 It is, as the weight of authority indicates, well settled 
 that, however dangerous it may be to make these coup- 
 lings, when one, after being duly advised of the danger, 
 and warned to take care, undertakes the work, the mani- 
 fest risk involved becomes a part of his contract, and if 
 injury result, in the absence of wantonness on the part of 
 the company, there can be no recovery.* The railways 
 have, by no means, it is believed, provided as they ought 
 against accidents to train-men in making couplings in 
 freight trains. The contrivances for connecting the cars 
 of a freight train are rude and murderous, but as the law 
 stands, if one chooses to run the risk, and contracts to 
 perform such service as is required of a brakeman on a 
 freight train, he has, in case he is hurt, no legal remedy. 
 
 § 1 36. Knowledge on the part of the employer. — In 
 determining the master's liability, inasmuch as the meas- 
 
 ' Sears v. Central, &c., R. R. Co., 111. 365; Greenleaf w. Illinois, &c., R. 
 
 53 Ga. 630. R. Co., 29 Iowa, 14, and § 125, supra. 
 
 2 Toledo, &c., R. R. Co. v. Fred- * Hathaway v. Michigan, &c,, R. 
 
 ericks, 71 111. 294; CrutchfieldT'. Rich- R. Co., 51 Mich. 253; S. C. 47 Am. 
 
 mond, &c., R. R. Co., 76 N. C. 320; Rep. 569 (a case in which this branch 
 
 S. C. 78 Id. 300. of the general question is fully dis- 
 
 ' Toledo, &c., R. R. Co. v. Fred- cussed); Northern, &c., R. R. Co. v. 
 
 ricks, supra. Compare Ft. Wayne, Husson, loi Penn. St. i ; S. C. 47 Am. 
 
 &c., R. R. Co. V. Gildersleeve, 33 Rep. 690. See, also. Smith z*. Flint, 
 
 Mich. 133; Schroeder v. Michigan Car &c., R. R. Co., 46 Mich. 258; S. C. 41 
 
 Co., Sup. Ct., Mich., January 28, 1885, Am. Rep. 161 ; Ballou w. Chicago, 
 
 32 Albany Law Jour. 134; Indian- &c., R. R. Co., 54 Wis. 250; S. C. 41 
 
 apolis, &c., R. R. Co. v. Flanigan, 77 Am. Rep. 31. 
 
§ 136.] MASTER AND SERVANT. 367 
 
 ure of it is ordinary care, it is plain that his knowledge 
 or want of knowledge of that which occasioned the injury, 
 will be a most material element in the case. If he knew, 
 or was under a legal obligation to know, and the servant 
 did not know, or was not bound to know, of the danger, 
 the servant having exercised due care, then the master is, 
 as we have already shown, liable. So it will come to 
 pass, generally, that the master's knowledge is of the 
 essence of his liability.^ 
 
 To state it broadly, without the qualifications, if the 
 master knows of the danger, or defect, he is liable ; if he 
 does not know, he is not liable. By knowledge, in such 
 a statement as this, is meant both what the master actu- 
 ally knows and what it is negligence for him not to 
 know.* Says Lord Cranworth in Paterson v. Wallace : * 
 " It is the master's duty to be careful that his servant is 
 not induced to work under the notion that tackle or 
 machinery is staunch and secure, when, in fact, the master 
 knows, or ought to know, that it is not so." This rule is 
 everywhere sustained.* 
 
 It being the duty of the employer to keep himself 
 informed gf the condition of his machinery, tools, prem- 
 ises, etc., notice of a defect will be presumed after the 
 
 ' See cases cited at § 123, supra. Towboat Co., 135 Id. 209, in which 
 
 * Compare § 12, supra, for a dis- the rule is evaded.] Columbus, &c., 
 cussion of the element of knowledge R. R. Co. v. Troesch. 68 111. 545 ; 
 on the part of a plaintiff. S. C. 18 Am. Rep. 578; Baxter v. 
 
 » I Macq. H. L. Cas. 748. Roberts, 44 Cal. 187; Spelman v. 
 
 * Wright V. New York, &c., R. R. Iron Co., 56 Barb, iji ; Strahlendorf 
 Co., 25 N. Y. 562; Gibson v. Pacific, v. Rosenthal, 30 Wis. 674; Guthrie 
 &c., R. R. Co., 46 Mo. 163; s. C. 2 V. Louisville, &c., R. R. Co., 11 Lea, 
 Am. Rep. 497; Lewis v. St. Louis, 372; S. C. 47 Am. Rep. 286. See, 
 &c., R. R. Co., 59 Id. 495; S. C. 21 also, Frazieri'. Penn.,&c., R. R. Co., 
 Am. Rep. 385; Greenleaf v. Illinois, 38 Penn. St. 104; Boyle v. Mowry, 
 &c., R. R. Co., 29 Iowa, 14; Sullivan 122 Mass. 25;; Pennsylvania R. R. 
 V. Louisville Bridge Co., 9 Bush. 81; Co. v. Wachter, 60 Md. 395; Texas, 
 Mobile, &c., R. R. Co. v. Thomas, &c., R. R. Co. v. Carlton, 60 Texas, 
 42 Ala. 672; Colorado, &c., R. R. 397; Mo. Pac. R. R. Co. v. Haley, 
 Co. z/. Ogden, 3 Colo 497; Walsh v. 25 Kan. 35; Russell v. Village of 
 Peet Valve Manfg. Co., 1 10 Mass. Canastota, 98 N. Y. 496. 
 
 23. [See, also, Johnson v. Boston 
 
368 MASTER AND SERVANT. [§ 1 3 7. 
 
 lapse of a sufficient time.^ But in insisting upon the 
 rule that the master's knowledge, or negligent ignorance, 
 will render him liable to an employee for an injury 
 resulting from dangerous or defective machinery, and the 
 like instrumentalities of labor, the , correlative duty on 
 the part of the servant is not to be overlooked. In con- 
 nection with the master's knowledge, there must be the 
 servant's want of knowledge. If the servant runs the 
 risk with his eyes open, he will ordinarily have no remedy, 
 no matter what the knowledge on the part of the master. 
 This is fully discussed in the following sections.^ 
 
 § 137. The obligation of the servant. — The obliga- 
 tion of the servant to use ordinary care to prevent and 
 avoid injuries to himself is correlative to the duty of the 
 master to exercise ordinary care not to expose him to 
 danger. The servant is under no less obligation to pro- 
 vide for his own safety than the master is to provide for 
 it for him. He may, like any other plaintiff, in various 
 ways contribute, to such a degree, to his injury as to 
 destroy his right of action. The measure of his duty is 
 ordinary care, and unless he exercise that, in good faith, 
 his conduct is negligent, and when such negligence con- 
 tributes, in the legal sense, to an injury that happens to 
 him, it is held to be contributory negligence, and his 
 action against his master is barred. His duty, as affect- 
 ing bis right of recovery against his master in case of 
 injury while in his service, may be considered under the 
 following heads, proceeding from the general rule that 
 he must exercise ordinary care to the specific and partic- 
 ular obligations imposed upon him : 
 
 » Chicago &c., R. R. Co. w. Rus- Kan. 58. See. also, Vosburgh v. 
 
 sell, 91 111. 298; s. c. 33 Am. Rep. 54; Lake Shore, &c.. R. R. Co., 94 N. Y. 
 
 Kibele z/. City of Philadelphia, 105 374; s. c. 46 Am. Rep. 148; Ed- 
 
 Penn. St. 41: Indianapolis, &c., R. wards v. New York, &c., R. R. Co., 
 
 R. Co. V. Flanigan, ^^ Ind. 365 ; Chi- 98 N. Y. 245. 
 cago, &c., R. R. Co. v. Doyle, 18 s See, also, §§ 12, 13, ■^■i, supra. 
 
§§ 138, 1 39-] MASTER AND SERVANT. 369 
 
 § 138. He must possess a fair measure of skill for the 
 service he undertakes, and must inform himself at the 
 outset of the duties and dangers peculiar to his work. — 
 It is not properly within the scope of this treatise to 
 consider particularly the duty of a servant to be qualified 
 for the position he assumes. It need not here be more 
 than alluded to, but when a servant enters upon his 
 duties in any employment involving risk of life or limb, 
 it is his duty to inform himself of the danger to which 
 he is to be exposed. As we have seen it to be the duty 
 of the master to point out such dangers as are not 
 patent,^ so it is the duty of the employee to go about his 
 work with his eyes open. He may not wait to be told, 
 but must act affirmatively. He must take ordinary care 
 to learn the dangers which are likely to beset him in the 
 service. If the master provides written or printed in- 
 structions or warning, it is his duty to read them. He 
 must not go blindly and heedlessly to his work, when 
 there is danger. He must inform himself. This is the 
 law everywhere.* 
 
 § 139. His knowledge when a bar. — The servant is 
 held, by his contract of hiring, to assume the risk of 
 injury from the ordinary dangers of the employment ; 
 that is to say, from such dangers as are known to him, or 
 discoverable by the exercise of ordinary care on his part. 
 He has, therefore, no right of action, in general, against 
 
 1 I 133, supra. 331 ; Hathaway v. Michigan, &c., R. 
 
 ' Wilson V. Willimantic, &c., Co., R. Co., 51 Mich. 253; S. C. 47 Am. 
 
 50 Conn, 433; S. C. 47 Am. Rep. Rep. 569; Michigan, &c., R. R. Co. 
 
 653 ; Chicago, &c., R. R. Co. v. Clark, v. Smithson, 45 Mich. 212, (by Cooley, 
 
 108 III. 113; \A.v. Warner, 108 Id. J.); Cunningham v. Chicago, &c.. R. 
 
 538; Lake Shore, &c., R. R. Co. i'. R. Co., 5 McCrary, 465; Northern, 
 
 McCormick, 74 Id. 440; Illinois, &c., R. R. Co. v. Husson, loi Penn. 
 
 &c., R. R. Co. V. Jewell, 46 Id. 99; St. i ; S. c. 47 Am. Rep. 690; Atchi- 
 
 Chicago, &c., R. R. Co. v. Jackson, son, &c., R. R. Co. v. Plunkett, 25 
 
 55 Id. 492; s. C. 8 Am. Rep. 661; Kan. 188; s. C. 2 Am. & Eng. Ry. 
 
 Ladd V. New Bedford, R. R. Co., Cas. 128; Wait's Actions and De- 
 
 119 Mass. 412; s. C. 20 Am. Rep. fenses, 417, and cases there cited. 
 
 34 
 
370 MASTER AND SERVANT. [§ 1 39. 
 
 his master for an injury befalling him from such a cause. 
 His right to recover will often depend upon his knowl- 
 edge or ignorance of the danger. If he knew of it, or 
 was under a legal obligation to know of it, it was part of 
 his contract, and he cannot, in general, recover.^ 
 
 There need be no confusion here between the ordi- 
 nary risks of his employment, on the one hand, and his 
 contributory negligence on the other. Assuming the 
 risks of an employment is one thing, and quite an essen- 
 tially different thing from incurring an injury through 
 contributory negligence. It is not contributory negli- 
 gence, /^r se, to engage in a dangerous occupation. Men 
 may properly and lawfully do work that is essentially 
 dangerous work, or work that is, for some reason or an- 
 other, more than ordinarily dangerous for the time being, 
 and to contract to do such work is not, in itself, an act 
 of negligence.* 
 
 Accordingly, an employee may know that his work 
 is dangerous, and yet not be guilty of contributory neg- 
 
 ^ Mad River, &c., R. R. Co. v. Reporter, 140; Powers z/. New York, 
 
 Barber, 5 Ohio St. 541 ; Dale v. St. &c., R. R. Co., 98 N. Y. 274; Jackson 
 
 Louis, &c., R. R. Co., 63 Mo. 455; v. Kansas, &c., R. R. Co., 31 Kan. 
 
 Mansfield, &c., Ca. v. McEnery, 91 761. But see, also, where judgments 
 
 Penn. St. 185; s. c. 36 Am. Rep. have been sustained, notwithstanding 
 
 662; Pingree v. Leyland, 135 Mass. that the servant had knowledge of 
 
 398 ; Umbeck v. Lake Shore, &c., R. the defect or danger which resulted 
 
 R. Co., 83 Ind. 191 ; Perigo v. Chi- in his injury, Dorsey v. Phillips, 42 
 
 cago, &c., R. R. Co., 55 Iowa, 326; Wis. 583; Fairbank v. Haentzsche, 
 
 Shanny v. Androscoggin Mills, 66 73 111. 236; Holmes v. Clarke, 6 
 
 Me. 420; Coombs v. New Bedford, Hurl. & N. 349; S. C. 7 Id. 937; Mo. 
 
 &c., Co., 102 Mass. 572; s. c. 3 Am. Pacific R. R. Co. v. HoUey, 30 Kan. 
 
 Rep. 506; Chicago, &c., R. R. Co. 465; Baird v. Chicago, &c., R. R. 
 
 V. Jackson, 55 111. 492; Toledo, &c., Co., 61 Iowa, 359; Farley v. Id., 56 
 
 R. R. Co. V. Asbury, 84 Id. 429; Id. 337; Beems v. Id., 58 Id. 150; 
 
 Chicago, &c., R. R. Co. v. Clark, 108 Lawless v. Conn., &c., R. R. Co., 136 
 
 Id. 113; Id. V. Warner, lo8 Id. 538; Mass. i. 
 
 Davis V. Detroit, &c., R. R. Co., 20 2 Pennsylvania Co. v. Long, 94 
 
 Mich 105 ; Dillon v. Union Pacific Ind. 250 ; Baird v. Chicago, &c., R. 
 
 R. R. Co., 3 Dill. 319; Bryant v. R. Co., 61 Iowa. 359; Beems I!/. Id., 
 
 Burlington, &c., R. R. Co., Sup. Ct., 58 Id. 150; Flynn v. Kansas, &c., 
 
 Iowa, N. W. Rep., June 13, 1885; S. R. R. Co., 78 Mo. 195; S. C. 47 Am. 
 
 C. 19 Am. Law Rev. 669 ; Coolbroth Rep. 99; Missouri Furnace Co. v. 
 
 V. Maine, &c., R. R. Co., Sup. Jud. Abend, 107 111. 44; s. C.47 Am. Rep. 
 
 Ct., Me., March 7, 1885; i Eastern 425. 
 
§ HO.] 
 
 MASTER AND SERVANT. 
 
 371 
 
 ligence in doing it. This is not such knowledge as the 
 rule in question contemplates.^ 
 
 § 140. When the servant is held to have waived the 
 danger or defect. — This is, by far, the most important 
 branch of the subject. It is the rule applicable to this 
 matter that if the servant, when the defect or danger is 
 brought to his knowledge — when he discovers that the 
 machinery, buildings, premises, tools, or any other instru- 
 mentalities of his labor, are unsafe or unfit, or that a 
 fellow-servant is careless or incompetent — continues in 
 the employment, without protest or complaint, he is 
 deemed to assume the risks of such danger, and to waive 
 any claim upon his master for damages in case of injury.* 
 
 1 See Laning v. New York, &c. , R. 
 R. Co., 49 N. Y. 521 ; s. C. 10 Am. 
 Rep. 417 ; Mehan v. Syracuse, &c., 
 R. R. Co., 73 N. Y. 585 ; Hawley v. 
 New York, &c.. R. R. Co., 82 Id. 
 370; Daley v. Shaaf, 28 Hun, 314; 
 Aldridge -v. Blast Co , 78 Mo. SS9 ; 
 but the rule is modified in case of an 
 infant employee; Smith v. Heston- 
 ville, &c., R. R. Co., 92 Penn. St. 
 450 ; S. C. 37 Am. Rep 705. 
 
 * Devitt V. Pacific, &c.. R. R. Co., 
 50 Mo. 302; O'Rorke v. Id,, 22 Fed. 
 Rep. 189, [a case decided late in the 
 year 1884, in the U. S. Cir. Ct.. for 
 the Dist. of Colo.]; Foley z/. Chicago, 
 &c., R. R. Co., 48 Mich. 622; S. C. 
 42 Am. Rep. 481 ; Fort Wayne, &c., 
 R. R. Co. !». Gildersleeve, 33 Id. 133; 
 Davis V. Detroit, &c., R. R. Co., 20 
 Id. 105; Fones v. Phillips. 39 Ark. 
 17; s. c. 43 Am. Rep, 264; Dillon 
 V. Union Pacific R. R. Co., 3 Dill. 
 319; Kielley v. Belcher, &c., Co., 3 
 Sawyer. 500; Jones v. Yeager, 2 Dill. 
 64; Laddw. New Bedford R R. Co., 
 119 Mass. 412; S C. 20 Am. Rep. 
 331; Dorsey v Phillips, 42 Wis. 583; 
 Robinson v. Houston, &c., R R. Co., 
 46 Texas, 540; Dale v. St. Louis, &c., 
 R. R. Co., 63 Mo. 455; Buzzell v. 
 Manfg. Co., 48 Me. 113; Sullivan w. 
 
 Louisville Bridge Co., 9 Bush. 8i ; 
 Hayden v. Manfg. Co., 29 Conn. 548; 
 Kelley v. Silver Spring Co., 12 R. I. 
 112; S. C. 34 Am. Rep. 615; Hough 
 V. Texas, &c., R. R. Co., 100 U. S. 
 213, (and the cases collected in the 
 reporter's note) ; Cooley on Torts, 5 59; 
 Shearman & Redf. on Neg., § 96; 
 LeClaire v. First Div., &c., R. R. 
 Co., 20 Minn. 9; Wright v. New 
 York, &c., R. R. Co., 25 N. Y. 562; 
 Laning v. New York, &c., R. R. Co., 
 49 N. Y. 521 ; S. C. lo Am. Rep 417; 
 Gibson v. Erie Ry. Co., 63 Id. 449; 
 S. C. 20 Am. Rep. 552; Georgia, &c., 
 R. R. Co. V. Kenney, 58 Ga. 485; 
 Western, &c., R. R. Co. v. Johnson, 
 55 Id. 133; Lumley v. Caswell, 47 
 Iowa, 159; Chicago, &c., R. R. Co. 
 V. Jackson, 55 111. 492; S. C. 8 Am. 
 Rep. 661 ; Id. v. Asbury, 84 Id. 429; 
 Perigo V. Chicago, &c., R. R. Co., 
 55 Iowa, 326 ; Hanrathy v. Northern, 
 &c., R. R. Co., 46 Md. 280; Crutch- 
 field V. Richmond, &c., R. R. Co., 78 
 N. C. 300; Frazier v. Penn. R. R. 
 Co., 38 Penn. St. 104; Cowles v. 
 Richmond, &c., R. R. Co., 84 N. C. 
 309; s. C. 37 Am. Rep. 620; Sullivan 
 V. India Manufacturing Co., 113 
 Mass. 396; Clark v. St. Paul and 
 Sioux City R. R. Co., 28 Minn. 128; 
 
372 MASTER AND SERVANT. [§ I40. 
 
 But, as has already been suggested, the severity of 
 this rule is somewhat relaxed in favor of persons who are 
 too young or too ignorant to appreciate the dangers to 
 which they are exposing themselves.^ 
 
 Whenever an employee discovers anything affecting 
 the safety of the machinery, or appliances, which he is 
 obliged to use, or the fitness and competence of the ser- 
 vants with whom he is associated, it is his duty to inform 
 his employer at once of the fact. He cannot be silent, 
 and escape the consequences. Failure to speak promptly 
 is such contributory negligence as will bar a recovery 
 from the master in case he is injured by the defect in the 
 machinery, or the unfitness of the servant.^ That the 
 servant, in such a case, has lost his right of action is con- 
 ceded, but the authorities disagree somewhat as to 
 whether it should be put upon the ground of waiver, or 
 of contributory negligence.^ But if, when the master is 
 notified of the defect in the machinery, or of the incom- 
 petence in the servant, he promises to remedy it within 
 a reasonable time, the servant will not be presumed to 
 have consented to it, or to have waived his rights by 
 remaining for such reasonable time in the service ; but 
 mere complaint to the master, unless a promise to repair 
 is made, will not justify the servant in continuing to 
 expose himself to the danger.* 
 
 Assop V. Yates, 2 Hurl. & N. 767 ; Britton v. Great Western Cotton Co., 
 
 Skipp V. Eastern Ry. Co., 24 Eng. L. R 7 Exch. 130. 
 
 L. & E. 396 ; S. C. 9 Exch. 223 ; 2 Patterson v. Pittsburgh, &c., R. 
 
 Griffiths V. Gidlow, 3 Hurl. & N. R. Co., 76 Penn. St. 389; S. C. 18 
 
 648; Woodley v. Metropolitan, &c.. Am. Rep. 412; Toledo, &c., R. R. 
 
 , Ry. Co., 2 Exch. Div. 384; Og- Co. z/. Eddy, 72 111. 138; Lumley ?/. 
 
 den V. Rummens, 3 Post. & Fin. 751 ; Caswell, 47 Iowa, 159 ; Crutchfield v. 
 
 Dynen v. Leach, 26 L. J. (N. S.) Richmond, &c., R. R., 78 N. C. 
 
 Exch. 221. 300; AUerton Packing Co. w. Egan, 
 
 » Coombs V. New Bedford Cordage 86 111. 253 ; Davis v. Detroit, &c., R. 
 
 Co., 102 Mass. 572 ; s. c. 3 Am. R. Co., 20 Mich. 105 ; Clark v. St. 
 
 Rep. 506; Laningj/. New York. &c., Paul, &c., R. R. Co., 28 Minn. 128. 
 
 R. R. Co., 49 N. Y. 521 ; s. C. 10 Am. > Clark v. St. Paul, &c., R. R. Co., 
 
 Rep. 417; Hill V. Gust, 55 Ind. 45; 28 Minn. 128. 
 
 Grizzle v. Frost, 3 Post, & Fin. 622 ; * Galveston R. R. v. Drew, 59 
 
§ 140.] MASTER AND SERVANT. 373 
 
 It is also asserted by some courts, and it is, perhaps, 
 the prevailing view, that the servant need not, for every 
 slight defect, abandon the service, even though he knew 
 of it. He may run some risk, such as a prudent man 
 would run, without losing his right of action against the 
 master, in case injury resiflts. Judge Thompson^ makes 
 a pertinent criticism of this impingement upon the gen- 
 eral rule, as follows : " This modification of the rule can- 
 not be deferided on strictly logical grounds, for, if the 
 servant has full knowledge of the defect, and yet the 
 defect is of such a character as not to lead to a reasonable 
 probability that it will result in injury to him, how can 
 negligence be imputed to the master for suffering it to 
 continue. The rule as thus modified, in effect, declares 
 that the master is bound to take more care of the servant 
 than the servant is bound to take of himself." To which 
 one might reply : Yea, verily, but it is a pretty good rule 
 of law after all. The doctrine is fully set forth in Patter- 
 son V. Pittsburgh, &c., R. R. Co.,^ by Mr. Justice Gordon, 
 and it is clearly the rule in many jurisdictions.^ 
 
 Texas, 10; s. c. 46 Am. Rep. 261; Rep. 785; Moak's Underhill's Torts, 
 
 East Tenn., &c., R. R. Co. v. Duf- 61, 62. 
 
 field, 12 Lea, 63; S. C. 47 Am. Rep. 1 Thomp. on Neg. loio. 
 
 319; Kroy V. Chicago, &c., R. R. ^ 76 Penn. St., 389; s. C. 18 Am. 
 
 Co, 32 Iowa, 257 ; Patterson v. Pitts- Rep. 412. 
 
 burgh, &c., R. R. Co., 76 Penn. St., » Greene v. Minneapolis, &c., R. 
 
 389; S. C. 18 Am. Rep. 412; Ford v. R. Co., 31 Minn. 248; s. C 47 Am. 
 
 FitchburgR. R. Co., no Mass. 241; Rep. 785, [a carefully considered 
 
 S. C. 14 Am. Rep. 598; Hough v. case]; Flynn v. Kansas, &c., R. R. 
 
 Texas, &c., R. R. Co., 100 U. S. Co., 78 Mo. 195; s. C. 47 Am. Rep. 
 
 213; Conroy z'. Vulcan Iron Works, 99; Keegan v. Kavanaugh, 62 Id. 
 
 62 Mo. 38; Cooley on Torts, § 559; 232; Ford v. Fitchburg R. R. Co., 
 
 Shearman & Redf. on Neg., § 96; no Mass. 240; S. C. 14 Am. Rep. 
 
 Wharton on Neg., § 220; Snow v. 598; Kroy v. Chicago, &c., R. R. 
 
 Housatonic R. R. Co., 8 Allen, 441 ; Co., 32 Iowa, 357 ; Colorado, &c., R. 
 
 Huddleston v. Machine Shop, 106 R. Co. v. Ogden, 3 Colo. 499; Buz- 
 
 Mass. 282; Missouri Furnace Co. v. zell w. Manfg. Co., 48Me. n3; Whar- 
 
 Abend, 107 111. 44; s. C. 47 Am. ton on Neg., § 221 ; Hawley z/. New 
 
 Rep. 425; Manfg. Co. v- Morrissey, York, &c., R. R. Co., 82 N. Y. 370; 
 
 40 Ohio St. 148; S. C. 48 Am. Rep. [compare this case with Mehan v. 
 
 66g\ Greene v. Minneapolis, &c., R. Syracuse, &c.. R. R. Co., 73 Id. 585;] 
 
 R. Co., 31 Minn. 248;S. C.47 Am. Greenleafz/. Dubuque, &c., R. R. Co., 
 
374 MASTER AND SERVANT. [§ I41. 
 
 § 141. Servant must obey rules established to promote 
 his safety. — It is contributory negligence of an aggra- 
 vated character on the part of an employee to disobey 
 reasonable rules and regulations enacted to protect him 
 from injury. If he is injured through such a gross and 
 unwarranted disregard of his *own safety, his remedy is 
 gone. Such negligence is the most pronounced con- 
 tributory negligence possible. It properly leaves the 
 person injured by it wholly remediless.^ 
 
 The disobedience of the servant must, however, have 
 been the proximate cause of the injury ; unless it were, 
 it will, upon familiar grounds, cut no figure in the case.* 
 Accordingly, it was held in Indiana, that a locomotive 
 engineer, though violating the rules of the company in 
 running his engine at a rate of speed far in excess of that 
 prescribed by the printed regulations furnished him, and 
 by which he was bound to be guided, was, nevertheless, 
 not guilty of contributory negligence in standing at his 
 post in the face of an impending collision which was 
 rendered imminent by a misplaced switch, when, by 
 jumping from the locomotive, he might have escaped 
 
 33 Iowa, 52 ; Shear. & Redf., § 95 ; Shanny v. Androscoggin Mills, 66 
 
 Clarke v. Holmes, 7 Hurl. & N. Me. 420; Gates 7/. Burlington,&c., R. 
 
 937 ; S. C. sub nom., Holmes v. R. Co., 39 Iowa, 45 ; Locke v. Sioux. 
 
 Clarke, 6 Id. 349; Holmes 2/. Worth- City, &c., R. R. Co., 46 Id. 109; 
 
 ington, 2 Fost.& Fin. 533. Note the Hubgh v. New Orleans, &c., R. R.. 
 
 dictum of Byles, J., in Clarke v. Co., 6 La. Ann. 495; s. C. 54 Am. 
 
 Holmes, sufira, " but a servant know- Dec. 565 ; Illinois, &c., R. R. Co. v. 
 
 ing the /ac/ may be utterly ignorant Houck, 72 111. 285 ; Beckham v. Hil- 
 
 of the rzsis." See, also, §§ 134, 135, lier, Sup. Ct., N. J., New Jersey Law 
 
 su/>ra, as to the risks from overhead Jour., April, 1885; S. C. 19 Am. Law 
 
 railway structures and from coupling Rev. 494. And see, also, Ohio, &c., 
 
 freight cars, and compare Vosburgh R. R. Co. v. CoUam, 73 Ind. 261 ; S. 
 
 V. Lake Shore, &c., R. R. Co., 94 N. c. 38 Am. Rep. 134; c/. George v. 
 
 Y. 374; s. C. 46 Am. Rep. 148. Gobey, 128 Mass. 289: s. C 35 Am. 
 
 ' Memphis, &c., R. R. Co. v. Rep. 376. 
 Thomas, 51 Miss. 637; Lockwood v. « Ford v. Fitchburg R. R. Co., no 
 
 Chicago, &c., R. R. Co., 55 Wis., 50; Mass. 240; s. c. 14 Am. Rep. 598; 
 
 Fay V. Minneapolis, &c., R. R. Marshall v. Stewart, 2 Macq. H. L. 
 
 Co., 30 Minn. 231 ; Lyon v. De- Cas. 30; s. c. i Pat. Sc. App. 447^ 
 
 troit, &c., R. R. Co., 31 Mich. 429; 33 Eng. Law& Eq. i. 
 
§ 142.] MASTER AND SERVANT. 375 
 
 injury. For an injury which he sustained under such 
 circumstances, though at the time he was violating a 
 plain rule of the company, he was held entitled to 
 recover, it not appearing that his violation of the rule 
 was the proximate cause of the collision.^ 
 
 § 142. Liability of a servant to a fellow-servant. — It 
 is now well settled that one servant may maintain an ac- 
 tion against a fellow-servant for damages resulting from 
 such fellow-servant's negligence in the discharge of his 
 duties in the common employment.* 
 
 In Albro v. Jaquith ^ the Supreme Judicial Court of 
 Massachusetts decided in 1855 that such actions were not 
 maintainable. This was an action of tort against the su- 
 perintendent of, the cotton and woolen mill of the Aga- 
 wam Canal Company, to recover damages for an injury 
 sustained from the escape of gas, caused by the negli- 
 gence of the defendant in the management of the appar- 
 atus used in lighting the mill, and the defendant had judg- 
 ment upon the ground that there was no contract stipu- 
 lating for care between the defendant and the plaintiff, 
 and that the act complained of was a mere act of non- 
 feasance for which the servant was liable only to the 
 master, and also upon the further ground that the matter 
 was res adjudicata, because an action had been previously 
 brought against the mill owners for the same injury by 
 the same plaintiff,* wherein it had been adjudicated that 
 
 ^ Pennsylvania R. R. Co. v. Roney, ton, 87 Ind. 410; Griffiths w. Wolfram, 
 89lnd. 453; s. C. 46 Am. Rep. 173. 22 Minn. 185; Swainson v. North- 
 See, also, Cottrill v. Chicago, &c., R. eastern Ry. Co., 3 Exch. Div. 341, 
 R. Co., 47 Wis. 634; S. C. 32 Am. 343; Wright v. Roxburgh, 2 Ct. of 
 Rep. 796; cf. § 15, supra. Sess. Cas. (3d series), 748 ; ir/'.Wiggett 
 
 * Osborne v. Morgan, 130 Mass. v. Fox, u Exch. 832, 839; Degg v. 
 
 102; s. C. 39 Am. Rep. 467; s. C. Midland Ry. Co., i Hurl. & N. 773, 
 
 137 Mass. I, overruling Albro v. Ja- 781. 
 
 quith, 4 Gray, 99 ; S. C. 64 Am. Dec. » 4 Gray, 99 ; S. C. 64 Am. Dec. 56. 
 56; Hinds V. Harbou, 58 Ind 121; * Albro v. Agawam Canal Co., 6 
 
 Hinds V. Overacker, 66 Id. 547 ; S. C Cush. 75. 
 32 Am. Rep. 114; Rogers v. Over- 
 
376 MASTER AND SERVANT, [§ 1 42. 
 
 the negligence of the superintendent, being the negli- 
 gence of a fellow-servant, did not confer upon the injured 
 employee any right of action against the common em- 
 ployer. This was equivalent to holding that servants in a 
 common employment owe to each other no duty even of 
 ordinary care that can be enforced in a court of justice — a 
 doctrine which has been much criticised by the text-writers,^ 
 and one so obviously opposed to plain principles of jus- 
 tice and right legal reason that, in 1881, the court com- 
 pletely receded from its anomalous and erratic position, 
 and, in a case in which the facts were for substance the 
 same, held, overruling Albro zf-Jaquith, that in Massachu- 
 setts such actions may be maintained, thereby falling in 
 line with other courts in this country, as well as those of 
 England and Scotland, upon this point. The right to 
 bring these actions, which ought never to have been for 
 an instant questioned, will, it may safely be said, never 
 hereafter be denied in any court where the common 
 law obtains. The servant, moreover, is liable as well to 
 his master as to his fellow-servant for any damage that 
 comes of his negligence,^ and when a master has been 
 compelled to pay the damages caused by the negligence 
 of his servant, he may sue the. servant and recover back 
 the money paid.^ The servant is also, as of course, 
 liable to any third person injured by his negligent 
 wrong-doing. He is in no way excused or shielded, by 
 reason of the liability of his master in certain cases 
 for the consequences of his acts, from personal respon- 
 
 1 Shear. & Redf. on Neg., § 112; less eminent court it would not de- 
 
 Thomp. on Neg. 1062, § 3; Wharton serve to be mentioned in terms of re- 
 
 on Neg., § 245 ; Story on Agency, spect. Thomp. on Neg. 1062, § 3. 
 § 453. W note; Bigelow's Leading 2 Page v. Wells (by Cooley, J.), 37 
 
 Cases on Torts, 710; Addison on Mich. 415, 421. 
 Torts, 245; Dicey on Parties, 465, 'Davis v. Garrett, 6 Bing. 716; 
 
 note. Judge Thompson says : "This Zulke v. Wing, 20 Wis. 408. See, 
 
 case must rank as a mere judicial ab- however, Whitew. Phillipston, loMetc. 
 
 eration. If it had been decided by a 108. 
 
§ I43-] MASTER AND SERVANT. 
 
 377 
 
 sibility for the wrong he does. This, however, is not 
 pertinent to our treatise, and is, therefore, merely al- 
 luded to. 
 
 § 143- Statutory modifications of the rule which ex- 
 empts a master from liability to one servant for the 
 negligent wrongdoing of a co-servant. — It became ev- 
 ident, early in the course of the development of the 
 law upon this point, that, in order to preserve to the 
 employee any vestige of the right of action which 
 the common law gave him against his employer, in a 
 proper case, for personal injuries attributable to the negli- 
 gence of another, and received in the course of the 
 common employment, the tendency to extend the rule 
 which had its inception, in England, in the case of 
 Priestley v. Fowler,^ and, in the United States, in the 
 early cases of Murray v. South Carolina R. R. Co.^ and 
 Farwell v. The Boston «& Worcester R. R. Co.,^ and 
 under the operation of which the defense of a common 
 employment had come to be urged to the practical 
 destruction of all such rights of action, would have to 
 be checked, and could only be checked by legislation. 
 Accordingly, on the 7th of September, 1880, Parliament 
 changed the law of England by passing the Employers' 
 Liabihty Act,* which, pending its final enactment, was pop- 
 ularly known as " the Gladstone Bill," and which, at the 
 time, attracted much attention both here and in England. 
 The statute provides, in sections i and 2, that common 
 employment, so called, shall not be a defense where a 
 workman receives personal injury : 
 
 I. By reason of any defect in the ways, works, ma- 
 chinery or plant connected with or used in the business 
 
 1 3 Mee. & W. I. '4 Mete. 49; S. C. 38 Am. Dec. 
 
 2 I McMullan's Law, 385; S. C. 36 339. 
 
 Am. Dec. 268. ^ 43 and 44 Vict., chap. 42. 
 
378 MASTER AND SERVANT. [§ 1 43. 
 
 of the employer, which defect existed in consequence of 
 the negligence of the employer, or of an employee by 
 him entrusted with the duty of guarding against any de- 
 fect. 
 
 2. By reason of the negligence of any person entrust- 
 ed with superintendence. 
 
 3. By reason of the negligence of any superior work- 
 man whose orders the person injured was bound to obey. 
 
 4. By reason of obeying proper rules or by-laws, or 
 any rule or by-law duly approved by certain public offi- 
 cers therein specified. 
 
 5. By reason of the negligence, on a railway, of any 
 person at the time in control of the train. 
 
 Unless the person injured knew, or failed, when neces- 
 sary, to give notice of the defect which caused the injury. 
 
 Section 3 limits the sum recoverable as compensa- 
 tion. 
 
 Section 4 limits the time for recovery of compensa- 
 tion. 
 
 Section 5 makes any penalty received by any other 
 act, part payment. 
 
 Section 6 relates to the trial of actions. 
 
 Section 7 provides for the service of a notice of any 
 injury received. 
 
 Sections 8, 9 and 10, respectively, defines terms used 
 in the act, tell when it shall go into operation, by what 
 title it shall be called, and how long it shall continue in 
 force. 
 
 From this resume of the statute it appears that the 
 defense of common employment has not been wholly 
 abolished in England, and that where the employee who 
 causes and the employee who receives the injury are 
 fellow-servants of the same grade, the liability of the 
 master remains as before. Had it been intended to abol- 
 ish this defense in all cases, it might have been accom- 
 
1 43-] MASTER AND SERVANT'. 
 
 379 
 
 plished in a single sentence. It rather brings back the 
 law to the original position in which it stood in 1837, 
 after Priestley v. Fowler ^ had been decided. The author- 
 ity of that case is not overthrown, and it is still good law 
 in Westminster Hall ; but the thousand refinements 
 upon the doctrine of Priestley v. Fowler, which the 
 English courts were not slow to distinguish, and under 
 the operation of which English employers in recent 
 years have, for the most part, gone scot-free of any 
 liability or responsibility for the personal injuries which 
 their servants or employees have sustained in the course 
 of their employment through the negligence of others, 
 for whom the common employer was justly responsible, 
 will no longer avail as defenses in actions of this na- 
 ture. 
 
 Comparatively recent legislation in several of the 
 States and Territories of the Union has modified for 
 us in this country the rule of non-liability which the 
 courts of every jurisdiction, as we have seen, have uni- 
 formly declared. With the exception of Rhode Island, 
 this legislation changes the settled rule only as it affects 
 the liability of railway corporations. 
 
 In California,^ Dakota,* Georgia,* lowa,^ Kansas,® 
 
 * 3 Mee. & W. I. viz.: " Injury by co-employee. — If the 
 ^ Codes & Statutes of California, person injured is himself an employee 
 
 ^^'^1 % 197I) modified by 6970. § 1970, of the company, and the damage was 
 
 so as to make the change in the law of caused by another employee, and with- 
 
 no practical value. out fault or negligence on the part of 
 
 'Revised Code of Dakota, 1877, the person injured, his employment by 
 
 page 396, art, 2, precisely, verbatim et the company shall be no bar to the re- 
 
 liieraiim, the same as the law of Cal- covery." Code, § 3036 (2981), enacted 
 
 ifomia. by the legislature during the season of 
 
 * Code of 1873, page 521, -3036 1855-56. See, also, Thompson v. 
 (2981). In this State the law, so far Central, &c., R. R. Co., 54 Ga. 509. 
 as the liability of railway companies is 'Revised Code of 1880, vol. I, 
 concerned, is completely changed, page 342, § 1307, viz : " Every corpo- 
 The material part of the statute is, ration operating a railway shall be lia- 
 
 * Revised Laws of Kansas, 1^79, March 4, 1874, viz. : " Every railroad 
 page 784, ch. 84. § 4914. taken from company, organized or doing business 
 Statutes of 1876, 869, § 4604, enacted in this State, shall be liable for all 
 
38o 
 
 MASTER AND SERVANT. 
 
 [§ 143. 
 
 Mississippi,^ Montana,'^ Rhode Island,' Wiscon- 
 
 ble for all damages sustained by any 
 person, including employees of such 
 corporation, in consequence of the 
 neglect of agents, or by any misman- 
 agement of the engineers or other em- 
 ployees of the corporation, and in con- 
 sequence of the wilful wrongs, wheth- 
 er of commission or omission, of such 
 agents, engineers or other employees, 
 when such wrongs are in any manner 
 connected with the use and operation 
 of any railway on or about which 
 they shall be employed ; and no con- 
 tract which restricts such liability 
 shall be legal or binding." The note 
 to this section is as follows, viz. : 
 " Under the statute prior to the pas- 
 sage of chap. 169, Laws of 1862, it 
 was held in harmony with the current 
 of common law authority that the 
 principal is not liable for damages 
 sustained by an employee for the 
 
 negligence of a co-employee in the 
 same general service; and that the 
 14th section of the act entitled An 
 Act to grant railroad companies the 
 right of way, approved January 18, 
 1853, did not change the general 
 rule on the subject. After the act of 
 1862 took effect, it was held that 
 while the seventh section thereof gave 
 an employee of a railroad company a 
 right to recover for injuries caused 
 by the negligence of a co-employee, 
 the liability was nevertheless meas- 
 ured by a diflFerent standard and rule 
 as to negligence from what it is in 
 cases of injuries to passengers. While 
 extraordinary care and caution are re- 
 quired with respect to passengers, ordi- 
 nary care only is due to the employee. " 
 See, also, a long list of authorities in 
 support of the new doctrine, in the 
 same note, pp. 343, 344, 345, 346. 
 
 damages done to any employee of 
 such company, in consequence of any 
 negligence of its agents, or by any 
 mismanagement of its engineers or 
 other employee's, to any person sus- 
 taining such damage."' In 1873 t^ie 
 case of Kansas Pacific R, R. Co. v. 
 Salmon, 1 1 Kan. 93, was decided, and 
 owing to the hardship felt to exist in 
 this case, the law was changed by 
 the statute referred to above in the 
 following year. The jury in the court 
 below had given a verdict for $7, 500 
 to a widow for personal injuries re- 
 sulting in the death of her husband, 
 and a new trial was refused. The 
 case was then taken up on error and 
 decided against the plaintiff, upon 
 the ground that a previous statute 
 making railways Uable for negligence 
 in certain cases (Laws of 1870, ch. 
 93, § i), did not apply to negligence 
 between co-employees of a railway 
 company. 
 
 * Revised Code of 1880, 309, § 1054, 
 viz. :— ' ' Every railroad company shall 
 be liable for all damages which may 
 be sustained by any person in conse- 
 quence of the neglect or mismanage- 
 ment of any of their agents, engineers, 
 or clerks, or for the mismanagement 
 
 of their engines ; but for injury to any 
 passenger upon any freight train not 
 being intended for both passengers 
 and freight, such company shall not 
 be liable except for the gross negli- 
 gence of its servants.'' 
 
 2 Laws of Revised Statutes (1879), 
 471, § 318, viz. : "That in every case, 
 the liability of the corporation to a 
 servant or employee acting under the 
 orders of his superior, shall be the 
 same, in case of injury sustained by 
 default or wrongful act of his superior, 
 or to an employee not appointed or 
 controlled by him, as if such servant 
 or employee were a passenger." See, 
 also. Laws, &c., of the Territory of 
 Montana, 1873 (extra), 104 and 109 
 note. 
 
 ' Public Statutes of 1882, 553, ch. 
 204, § 1 5, viz. : " If the life of any per- 
 son, being a passenger in any stage- 
 coach, or other conveyance, when 
 used by common carriers, or the life 
 of any person, whether a passenger 
 or not, in the care of proprietors of, 
 or common carriers by means of, rail- 
 roads or steamboats, or the life of 
 any person crossing upon a public 
 highway with reasonable care, shall 
 be lost by reason of the negligence or 
 
§ H3-1 
 
 MASTER AND SERVANT. 
 
 381 
 
 sin,^ Wyoming,* and Missouri,^ statutes, the sub- 
 stance of which is set out in the notes, have been 
 
 carelessness of such common carriers, 
 proprietor or proprietors, or by the 
 uniitness, or negligence, or careless- 
 ness of their servants or agents, in 
 this State, such common carriers, pro- 
 prietor or proprietors, shall be liable 
 to damages for the injury caused by 
 the loss of life of such person, to be 
 recovered by action of the case, for 
 the benefit of the husband or widow 
 and next of kin of the deceased per- 
 son, one-half thereof to go to the hus- 
 band or widow, and one-half thereof 
 to the children of the deceased." 
 
 1 Laws of 1875, published March 
 18, 1875, approved March 4, 1875, viz.: 
 ■' Every railroad corporation shall be 
 liable for all damages sustained by 
 any agent or servant thereof by reason 
 of the negligence of any other servant 
 or agent thereof, without contributory 
 negligence on his part, when sustained 
 within this State, or when such agent 
 or servant is a resident of, and his 
 contract of employment was made in, 
 this State ; and no contract, rule or 
 regulation between any such corpora- 
 tion and any agent or servant shall 
 impair or diminish such liability." 
 
 * Compiled Laws of Wyoming 
 (1876), 512, ch. 97, § I. Approved 
 December 7, 1869, viz. : " An Act to 
 protect railroad employees who are 
 injured while performing their duty." 
 "Any person in the employment of 
 any railroad company in this Territory, 
 who may be killed by any locomotive, 
 car, or other rolling stock, whether in 
 the performance of his duty or other- 
 wise, his widow or heirs may have the 
 same right of action for damages 
 against such company as if said per- 
 son so killed were not in the employ 
 of said company; any agreement he 
 may have made, whether verbal or 
 written, to hold such company harm- 
 less or free from an action for dam- 
 ages in the event of such killing, shall 
 be null and void, and shall not be 
 admitted as testimony in behalf of 
 said company in any action for dam- 
 ages which may be brought against 
 
 them ; and any person in the employ 
 of said company who may be injured 
 by any locomotive, car, or other roll- 
 ing stock, of said company, or by 
 other property of said company, shall 
 have his action for damages against 
 said company the same as if he were 
 not in the employ of said company ; 
 and no agreement to the contrary 
 shall be admitted as testimony in be- 
 hjdf of said company." §2. "This 
 act shall take effect from and after its 
 passage." 
 
 3 I Revised Statutes (1879), 349. 
 ch. 25. §2121, viz. : "Damages for 
 injuries resulting in death in certain 
 cases, when and by whom recover- 
 able." " Whensoever any person 
 shall die from any injury resulting 
 from or occasioned by the negligence, 
 unskilfulness or criminal intent of any 
 officer, agent, servant or employee, 
 whilst running, conducting, or manag- 
 ing any locomotive, car or train of 
 cars ; or of any master, pilot, engin- 
 eer, agent or employee, whilst running, 
 conducting or managing any steam- 
 boat, or any of the machinery there- 
 of ; or of any driver of any stage- 
 coach, or other public conveyance, 
 whilst in charge of the same as a 
 driver ; and when any passenger 
 shall die from any injury resultmg 
 from or occasioned by any defect or 
 insufficiency in any railroad or any 
 part thereof, or in any locomotive or 
 car, or in any steamboat or the ma- 
 chinery thereof, or in any stage-coach 
 or other public conveyance, the cor- 
 poration, individual or individuals, in 
 whose employ any such officer, agent, 
 servant, employee, master, pilot, en- 
 gineer or driver shall be at the time 
 such injury is committed, or who 
 owns any such railroad, locomotive, 
 car, stage-coach or other public con- 
 veyance at, the time any injury is re- 
 ceived, resulting from or occasioned 
 by any defect or insufficiency above 
 declared, shall forfeit and pay, for 
 every person or pa,ssenger so dying, 
 the sum of $5,000, which may be sued 
 
382 MASTER AND SERVANT. [§ I43. 
 
 passed, under the wholesome operation of which the 
 old rule of non-liability is practically abrogated. 
 Except in California and Dakota, it may be said that 
 in each of the States and Territories just mentioned 
 — in all six States and two Territories — the old rule is 
 entirely abandoned, and an adequate remedy provided by 
 the statutes for the proper protection of railway em- 
 ployees, while in California and Dakota the statutes de- 
 fine the limit of liability, and quoad hoc recognize and 
 assert the propriety of legislation upon this subject. 
 Even in Massachusetts, the stronghold of the most radi- 
 cal doctrines as to non-liability and common employment 
 as a defense, an interesting struggle has gone on in the 
 legislature for several years in the attempt to secure a 
 statute for that State which shall abrogate the old rule, 
 and under which, protection may be extended to those 
 classes of employees now for the most part unprotected 
 in the courts as the law stands.^ 
 
 for and recovered : First, by the hus- decided (one judge dissenting) that 
 
 band or wife of the deceased ; or, the phrase ' any person ' does not 
 
 second, if there be no husband or include fellow-servant and that his 
 
 wife, or he or she fails to sue within remedy (see 64 Mo. 112; overruling 
 
 six months after such death, then by 36 Mo. 13; 59 Mo. 285 ; Revised Stat- 
 
 the minor child or children of the de- utes, p. 350, note) remains the same as 
 
 ceased; or, third, if such deceased be it was before the statute was passed." 
 
 a minor and unmarried, then by the ' An Employer's Liability Bill, 
 
 father and mother, who may join in drawn, and advocated with much 
 
 the suit, and each shall have an equal ability, by Charles G. Fall, Esq., of 
 
 interest in the judgment ; or, if either the Suffolk Bar, was defeated in the 
 
 of them be dead, then by the survivor. Massachusetts Legislature, May ist. 
 
 In suits instituted under this section, 1885, by the slender majority of 85 to 
 
 it shall be competent for the defen- 70. Further efforts before future leg- 
 
 dant, for his defence, to show that the islatures are to be made. See, for a 
 
 defect or insufficiency named in this history of the whole matter, and for 
 
 section was not of a negligent defect full information upon the question, 
 
 or insufficiency." ''Although," says "Employers' Liability for Personal 
 
 Mr. Fall ["Employer's Liability," 41], Injuries to their Employees," by 
 
 " at first sight this law would seem to Charles G. Fall, Esq , of the Boston 
 
 afford a remedy for injuries sustained Bar, Boston, 1883 — a pamphlet from 
 
 by a servant, and was quoted during which I have drawn without stint in 
 
 the discussion in England " [over the preparing this section. See, also, "Lia- 
 
 Gladstone Bill] " to show that in bility of Masters to Servants," by 
 
 Missouri it changed the rule of the Judge Cooley, 2 Southern Law Rev. 
 
 commonlaw, the Court of Appeals has (N. S), 108 ; " Master's Liability to 
 
§ I44-] MASTER AND SERVANT. 383 
 
 § 144. Should the employee be allowed to make aeon- 
 tract, releasing his employer from the liability imposed 
 by these statutes. — Immediately upon the passage of such 
 statutes as are considered in the preceding section, the 
 question arises whether the employee may lawfully con- 
 tract himself out of the operation of the act. In the 
 English Act,^ there is nothing either permitting or for- 
 bidding such a contract ; and, no sooner was it enacted, 
 than many railway and mining corporations, as also many 
 other companies and private individuals, who employ 
 large numbers of servants, attempted to compel their 
 laborers to sign contracts of hire releasing them from' 
 liability for damage under the act ; and these contracts 
 have been declared valid and enforceable, in the Court 
 of Queen's Bench, in the case of Griffiths v. The Earl of 
 Dudley.'* Such contracts are, I am informed, very gen- 
 erally made by English operatives ; and, inasmuch as 
 the courts uphold them, and all efforts to amend the act 
 of 43 and 44 Vict, so as to render them illegal have failed, 
 when it is considered that in more than ninety per centum 
 of all the actions of this nature which are brought in the 
 English Courts of Record, the contributory negligence 
 of the plaintiflF is, as has been shown by a careful examin- 
 ation of the court records as to this very point, a valid 
 defense, we see that the practical benefits of the act are 
 in reality, speaking from the standpoint of the employee, 
 less than they at first sight appear to be. It is moreover, 
 asserted, and the assertion has at least a show of founda- 
 tion, that English employers have found that the oper- 
 ation of the act, in connection with the contract of 
 exemption required from the employee, has been to di- 
 
 Servants," by Francis Wharton, 3 Esq., of the Minneapolis, Minn., bar, 
 Id. 730 ; and two able articles upon 5 Id. 200 and 380. 
 the same subject, by A. B. Jackson, > 43 and 44 Vict. ch. 42. 
 
 ' L. R. 9 Q. B. Div. 357. 
 
384 MASTER AND SERVANT. [§ 1 44. 
 
 minish materially the amount of gross recoveries by em- 
 ployees in actions of this nature, in the English courts 
 since 1880 — which is only another way of saying that the 
 Employer's Liability Bill is money in the pocket of the 
 employer, and a corresponding actual money loss to the 
 employee. 
 
 In this country, so far as my reading goes, such con- 
 tracts are forbidden by statute only in lowa,^ and in Mas- 
 sachusetts.* But it is held in Kansas, that a railway com- 
 pany may not contract in advance with its employees for 
 the waiver, and release of the statutory liability imposed 
 upon such companies for the negligence of one employee 
 causing injury to another employee without regard to the 
 negligence of the company.* In Griffiths v. The Earl of 
 Dudley,* it is held that an employee may not only con- 
 tract himself out of the operation of the act of 43 and 44 
 Vict. ch. 42, but that such a contract on his part will 
 operate so as to bind his widow in the event of his death 
 from injury, and thus bar her right to sue ; that is to say, 
 that an employee by such a contract, not only cuts him- 
 self off from his right of action under the act, but also 
 prevents the prosecution of an action by his widow under 
 Lord Campbell's Act. It not being questioned that the 
 contract bars an action by the personal representatives, 
 it was argued that the widow obtained a new and inde- 
 
 ^ In the statute to which reference result from the employer's own negli- 
 
 has already been made, i Rev. Code gence, or from the negligence of other 
 
 of 1880, 342, § 1307, viz.; "No con- persons in his or its employ." This 
 
 tract which restricts such liability " must, however, be understood to refer 
 
 (i.e. the liability imposed by the stat- only to the common law liability of 
 
 ute), "shall be legal or binding." the employer as understood by the 
 
 2 Chapter 74, § 3, of the Public Stat- courts of Massachusetts, 
 
 utes says : " No person or corporation ' Kansas, &c., R. R. Co. v. Peavey, 
 
 shall, by a special contract with per- 29 Kan. 169; S. C. 44 Am. Rep. 630. 
 
 sons in hip or its employ, exempt him- See, also, Union Pacific R. R. Co. v. 
 
 self or itself from any liability which Harris, Sup. Ct., Kansas, April 10, 
 
 he or it might otherwise be under to 1885, 20 Cent. Law Jour. 414; S. C. 
 
 such persons for injuries suffered by xix Am. Law Rev. 669. 
 
 them in their employment, and which * L. R. 9 Q. B. Div. 357. 
 
§ I45-] MASTER AND SERVANT. 385 
 
 pendent right of action under the act of 27 and 28 Vict, 
 ch. 95 ; that this right her husband had no power to 
 contract away, and that while he might have the power 
 to bargain away his own right to recover damages, he 
 should not be allowed to bargain away the right of his 
 family, under the Act of Lord Campbell. But the court 
 thought this an unsound view, and held, without any 
 dissent, that the contract was valid to bar alike the one 
 right and the other.^ In Roesner v. Hermann,^ it was 
 held, in the United States Circuit Court, for the Seventh 
 Circuit, that a contract between an employer and his 
 employee, by which the employee, in consideration of the 
 employment, releases and discharges his employer from 
 all his common law liability for damages, for injury or 
 death of the employee, resulting from the employer's neg- 
 ligence, is void as against public policy. 
 
 The weight of authority in this country is plai nl yin 
 favor of a doctrine, upon this point, the opposite of that 
 asserted in the English case of Griffiths v. The Earl of 
 Dudley,* and it is easy to learn from the practical outcome 
 of the English act — which was intended to secure greater 
 protection for the employee, but which in verity, does 
 him more harm than good — that, if anything of substan- 
 tial benefit is to come to the serving class, from legisla- 
 tion of this character, such contracts of exemption as we 
 have been considering must be made illegal and impos- 
 sible ; otherwise, the shield turns itself into a sword, and 
 the last end of such legislation is, for the class sought to 
 be benefited, worse than the first. 
 
 § 145. The laws of other countries as to the liability 
 of an employer, for injuries to an employee, caused by the 
 
 > Griffiths V. Earl of Dudley, supra. * 10 Biss. 486. 
 Compare Wilson v. Merry, L. R. i H. » L. R. 9 Q. B. Div. 357, supra. 
 L. Sc. App. 326 ; Read v. Great East- 
 em Ry. Co., L. R. 3 Q. B. 555. 
 
 25 
 
386 MASTER AND SERVANT. [§ H5' 
 
 carelessness of a fellow-employ ee.-^\vi Scotland, the courts 
 made a persistent but ineffectual fight against the influ- 
 ence of the case of Priestley v. Fowler.^ In the case of 
 Sword V. Cameron,^ decided in 1 839, a year after Priestley 
 V. Fowler, the Scotch judges declinefi to follow the Eng- 
 lish authority. It was an action to recover damages from 
 the owner of a quarry, because one of the quariymen^ 
 while carelessly blasting a rock, had injured a fellow- 
 workman. The court held the employer responsible for 
 the negligence of his workman, and the plaintiff had 
 judgment against him. In Dixon v. Rankin,* decided 
 in 1852, the Scotch Court again disapproved of the posi- 
 tion taken by the English Court, and after carefully re- 
 viewing Priestley v. Fowler,* unanimously followed the 
 rule of Sword v. Cameron.^ Lord Justice Clerk, in de- 
 livering the opinion after declaring the obligation of the 
 employer as to safe and suitable machinery and appar- 
 atus, it being an action wherein a master was held liable 
 for an accident in a coal-pit, says: " In this obligation is 
 equally included — as he cannot do everything himself — 
 the duty to have all acts by others whom he employs done 
 perfectly and carefully in order to avoid risk. The obli- 
 gation to provide for the safety of the lives of his servants 
 by fit machinery, is not greater or more inherent in the 
 contract, than the obligation to provide for their safety, 
 from the acts done by others whom he also employs. 
 The other servants are employed by him to do acts which, 
 of course, he cannot do himself ; but they are acting for 
 him, and instead of himself, as his hands. For their care- 
 ful and cautious attention to duty, for their neglect of 
 precautions, by which danger to life may be caused, he is 
 just as much responsible as for such misconduct on his 
 
 ' 3 Mee. & W. I, see §§ 98, 99, » 14 Scotch Sess. Cas. 420. 
 sufra. * 3 Mee. & W. i. 
 
 ' I Scotch Sess. Cas. 493. = Supra. 
 
§ 1 45-] MASTER AND SERVANT. 387 
 
 own part, if he were actually working or present ; and 
 this particularly holds to the person he entrusts with the 
 direction and control over any of his workmen, and who 
 represents him in such a matter. The servant, then, in 
 the contract of service in Scotland, undertakes no risks 
 from the dangers caused by other workmen from want of 
 care, attention, prudence and skill which the attention 
 and presence of the master or others acting for him, might 
 have prevented. His master is bound to him in obliga- 
 tions which are to protect him from such dangers. The 
 principle of the contract in England being different, of 
 course, different results follow." * 
 
 Again, in Gray v. Brassey,^ the same doctrine is em- 
 phasized, the judges still refusing to follow the rule of 
 Priestley v. Fowler. The Lord President said that the 
 master was liable for the negligence of his authorized 
 servants as well as for his own negligence, and Lord Cun- 
 ningham, for the court, said : " Although our reports for 
 many years show that masters have been held liable to all 
 third parties (without excepting fellow-servants) suffering 
 from the negligence and unskillfulness of other servants 
 hired by the employer, followed up by the late 'case of 
 Rankin v. Dixon, in the Second Division, the books 
 hardly show the extent of the understanding in Scotland, 
 as it is believed there is nO man of common intelligence, 
 and experience in our affairs, who entertains a different 
 opinion. Many industrious people may have relied on 
 that security ; and, at any rate, when servants in this coun- 
 try have suffered severe injury from the fault of another 
 workman hired by the master, we are not entitled sud- 
 denly to abrogate the responsibility of the latter, existing 
 at the date of their employment. The law of Scotland 
 on this point has been long established and acted on, 
 
 Dixon V. Rankin, supra. * IS Court of Sessions Cases, 135. 
 
388 MASTER AND SERVANT. [§ 1 45. 
 
 while this question is new in England, arising merely 
 under an act recently passed ; and I must, with perfect 
 deference, remark that the reasons assigned in the Eng- 
 lish cases for the distinction urged by the defender, do 
 not appear to be altogether satisfactory or reasonable."^ 
 
 But, in 1858, the House of Lords, in the cases of Bar- 
 tonshill Coal Co. v. Reid, and Id. v. McGuire,' overruled 
 the unanimous judgments of the Scotch judges in favor 
 of the plaintiffs in the actions to which I have referred, 
 rendered upon the ground that an employer is liable to 
 his employee for the negligence of his authorized agent, 
 though that agent is a fellow-servant of the injured per- 
 son, in accordance with the rule of the earlier case of 
 Sword V. Cameron.* Thus the Scotch law was brought 
 mto harmony with the position taken by the English 
 courts upon this question, and what had been declared 
 law by twenty -five judges was changed by this judgment, 
 and the law of both countries was made the same."* 
 
 In Ireland, the courts have always followed Priestley 
 V. Fowler. The question first came before those courts 
 in 1858, in McEnery v. Waterford & Kilkenny Ry. Co.," 
 which affirmed the English rule, and all the Irish decisions 
 subsequent uniformly accept it. 
 
 In France, under the Civil Code, it seems that an 
 employer is liable to an employee for the negligence of 
 a ca-employee.* And in Italy the law is the same. The 
 Italian Code was modeled upon the French Code, and 
 
 ^ See, also, to the same effect, Baird ' Fall's Employer's Liability, 33. 
 
 V. Addie, 16 Court of Sessions Cas. ' 8 Ir C. L. R. 312. 
 
 490; Brownlie v. Tennant, Id. 998; « Civil Code, Art. 1382, 1383, 1384. 
 
 O'Byme v. Bum, Id. 1025 ; Hill. v. Compare Serandat v. Saisse, L. R. i 
 
 Caledonian Ry. Co., Id. 569. P. C. 152, a decision by the judicial 
 
 2 3 Macq. H. L. Cases, 266, 4 Jur. committee of the Privy Council on 
 
 (N. S.) 767, 772, I Pat. Sc. App. 785, appeal from the Mauritius which is 
 
 796- under the control of the French law ; 
 
 ' Supra. cf. Fall's Employer's Liability, 33. 
 
§ I45-] MASTER AND SERVANT. 389 
 
 that section which considers this subject is an almost 
 literal translation of the French.^ 
 
 In Prussia, upon the authority of Mr. Fall, who may 
 be called as an expert witness, it may be said that em- 
 ployers are held liable, for the most part, for injuries to 
 their servants, occasioned by the negligence of their fel- 
 low-servants.* 
 
 It appears, therefore, that the position of the English 
 and American courts upon the matter of an employer's 
 liability to his employees for personal injuries is some- 
 what anomalous ; that it is very far from being a satis- 
 factory position, and that there is a growing tendency to 
 modify the extreme grounds the courts have taken by 
 legislation, and even to abolish entirely common employ- 
 ment as a defense. It seems that the law in its present 
 attitude has been developed under the more or less con- 
 scious influence of the great railway corporations of the 
 country. It cannot be doubted that such an influence, 
 at the best, is a bad influence, and the tendency of the 
 courts to go to the very verge upon this point in the 
 interest of these companies, may well be checked by ap- 
 propriate legislation. 
 
 1 Italian Civil Code, Art. 1 1 53. 
 
 2 Fall's Employer's Liability, 35, citing HoltzendorfTs Encyclopaedia. 
 
CHAPTER VIII. 
 
 THE RULE IN SPECIAL AND PARTICULAR CASES. 
 
 146. Intoxication as a defense in ac- 
 
 tions of negligence. 
 
 147. Deafness, blindness or other 
 
 physical infirmity as a defense, 
 
 148. Negligence as a defense in ac- 
 
 tions upon policies of insurance. 
 
 149. In actions against telegraph com- 
 
 panies, far failure in the trans- 
 mission or delivery of tele- 
 graphic dispatches. 
 
 § 150. The rule in the Admiralty. 
 
 151. Contributory negligence as a 
 
 defense in actions between at- 
 torney and client. 
 
 152. Between physician and patient. 
 
 153. Between innkeeper and guest. 
 
 154. Miscellaneous. 
 
 § 146. Intoxication as a defense in actions of negli- 
 gence. — Intoxication on the part of a plaintiff is not, as a 
 general rule, in itself and as a matter of law, such negli- 
 gence, or evidence of such negligence, as will bar a re- 
 covery when an action is brought for injuries sustained 
 by reason of the culpable and negligent default of another.' 
 " A drunken person sometimes acts with great care, 
 although the contrary is undoubtedly the general rule." * 
 The law refuses, therefore, to impute negligence, as of 
 course, to a plaintiff from the bare fact that at the mo- 
 ment of suffering the injury he was intoxicated. Intoxi- 
 cation is one thing, and negligence sufficient to bar an 
 action for damages quite another thing. "Intoxicated 
 persons," it is said in Alger v. Lowell,* " are not removed 
 
 1 Stuart V. Machias Port, 48 Me. 
 477; Weymire v. Wolfe, 52 Iowa, 
 533; Loewer v. City of Sedalia, 77 
 Mo. 431 ; City of SaJina v. Trosper, 
 27 Kan. 545 ; Alger w. Lowell, 3 Allen, 
 406; Baker w. Portland, 58 Me. 199; 
 S. C.4Am. Rep. 274; Baltimore, &c., 
 R. R. Co. V. Boteler, 38 Md. 568; 
 Bums V. Elba, 32 Wis. 605 ; Thorp 
 V. Brookfield, 30 Conn. 321 ; Healy 
 
 V. New York, 3 Hun, 708; Ditchett 
 V. Spuyten Duyvil, &c., R. R. Co., 5 
 Id. 165; O'Hagani'. Dillon, 10 Jones 
 & S. 456 ; Cramer v. Burlington, 42 
 Iowa, 315; Robinson w. Pioche, jCal. 
 460; Shear. & Redf. on Neg., § 574; 
 Thomp. on Neg. 11 74, § 22, 1203, 
 § so, and ^., § 66 supra. 
 
 « Shear. & Redf. on Neg., § 487. 
 
 ^ 3 Allen, 406. 
 
^ 146.] RULE IN SPECIAL CASES. 39I 
 
 from all protection of law, the plaintiff was bound to 
 show that he was in the exercise of due care, and the jury 
 were so instructed. If he used such care, by himself or 
 others, his intoxication had nothing to do with the acci- 
 dent ; the city may be liable under some circumstances,^ 
 for an injury sustained by ... an intoxicated person 
 if the condition of the injured person does not contribute 
 in any degree to occasion the injury " — which is very 
 nearly the same thing as to say that the mere concurrence 
 in point of time between the plaintiff's intoxication, and 
 the happening of the injury will not, in itself, be sufficient 
 to bar the right to recover. When contributory negli- 
 gence is the issue, it must appear that the plaintiff did not 
 exercise ordinary care, and that, too, without reference to 
 his inebriety, or he may have his action. The question 
 is whether or not the plaintiff"'s conduct came up to the 
 standard of ordinary care, not whether or not the plaintiff 
 was drunk. As sober men are frequently careless and 
 ^ilty of negligence, so it very occasionally happens that 
 drunken men are careful and prudent, or if negligent, that 
 their intoxication cut no figure in the mattet. From 
 which the law infers that there is no proper and nec- 
 essary connection between sobriety and carefulness, 
 nor between inebriety and negligence. This is a view, 
 however, to be taken with the qualification that while 
 intoxication is not, as a matter of law, to be regard- 
 ed contributory negligence; it is held that it tends to 
 show negligence on the part of the plaintiff.'' " Intoxica- 
 tion is competent, but not conclusive evidence of negli- 
 gence." ' The plaintiff is, therefore, on the one hand, 
 
 1 " A drunken man is as much en- Id. 177; City of Rock Island v. Van- 
 
 litled to a safe street as a sober one, landschoot, 78 Id. 485. 
 
 and much more in need of it," said » Abbott's Trial Evidence, 585, § 12, 
 
 Heydenfeldt. J., in the case of Robin- citing Stuart v. Machiasport, 48 Me. 
 
 .son V. Pioche, 5 Cal. 460. 477; Baker v. Portland, 58 Id. 199; 
 
 « Aurora v. Hillman, 90 111. 61; S. c. 4 Am. Rep. 274; Wynn w. AI- 
 
 lUinois, &c., R. R. Co. v. Cragin, 71 lard, 5 Watts & S. (Penn.) 524. 
 
392 RULE IN SPECIAL CASES. [§ 1 46. 
 
 entitled to an instruction to the effect that his intoxica- 
 tion is not, as matter of law, contributory negligence or 
 conclusive evidence of such negligence as will prevent a 
 recovery ; and the defendant on his part is entitled to an* 
 instruction to the effect that the intoxication of the 
 plaintiff is evidence of negligence, from which the jury 
 are at liberty to infer such negligence as will bar the 
 action.^ Under the Georgia Code in certain classes of 
 actions against railway companies, the intoxication of the 
 plaintiff is made an absolute defense,^ but this is coun- 
 ter to the current of authority. 
 
 Drunkenness, however, on the part of a trespasser 
 is universally held to be such negligence as will pre- 
 vent entirely any recovery of damages for injuries sus- 
 tained at the time, ar by reason of the trespass. In- 
 toxication under these circumstances is, in law, a ^more 
 serious irregularity than intoxication merely. When one 
 comes upon my premises without warrant, and in addition 
 to the wrong-doing involved in the trespass, drinks him- 
 self drunk, and thus renders himself helpless and irrespon- 
 sible, and under these circumstances, and being in that 
 condition, sustains an injury, he is in no position to call 
 upon me for damages for anything he has suffered, for 
 which any conduct upon my part, short of a wanton 
 and wilful infliction of injury is the cause or occasion.*" 
 Drunkenness is a wholly self-imposed disability, and in 
 consequence is not to be regarded with that kindness and 
 indulgence which we instinctively concede to blindness, 
 or deafness, or any other physical infirmity. Trespassers 
 
 ^ Wynn v. AUard, 5 Watts & S. Weston, 52 Wis. 354; City of Salina. 
 524; Illinois, &c., R. R. Co.z/. Cragin, v. Trosper, 27 Kan. 545. 
 71 111. 177; Cleghorn v. New York, « Code of Ga., § 2972, and § 3034f 
 &c., R.R. Co., 56 N. Y. 44; People v. cf. Southwestern R. R. Co. v. Han- 
 Eastwood, 14 Id. 562 ; Wood V. Andes, kerson, 61 Ga. 1 14. 
 II Hun, 543; Cassedyz/. Stockbridge, ' Mulherrin v. Delaware, &c., R. 
 21 Vt. 391 ; Chicago, &c . R. R. Co. R. Co., 81 Penn. St. 366. 
 V. Bell, 70 111. 102; Fitzgerald v. 
 
§ 146.] RULE IN SPECIAL CASES. 
 
 393 
 
 go at their peril. That is settled law. Much more is it 
 just to hold that they make themselves drunk at their 
 peril. Disabilities, moreover, of any kind are to be a 
 shield, and never a sword. It would be a strange rule of 
 law that regarded a certain course of conduct negligent 
 and blame-worthy upon the part of a sober man, but that 
 held the same conduct, on the part of the same man when 
 intoxicated, venial and excusable. Drunkenness will never 
 excuse one for a failure to exercise the measure of care 
 and prudence which is due from a sober man under the 
 same circumstances.^ Men must be content, especially 
 when they are trespassers, to enjoy the pleasures of intoxi- 
 cation cum periculi?. When they make themselves drunk, 
 and in that helpless condition wander upon the premises 
 of sober men and sustain an injury, they will not be 
 heard to plead their intoxication as an answer to the 
 charge of negligence ; and the courts consistently hold 
 that such intoxicated trespassers have no standing in any 
 forum where justice is impartially administered. Many 
 cases illustrate and enforce this doctrine. Herring v, 
 Wilmington & Raleigh R R. Co.* is the leading case. 
 The facts were these : Two of the plaintiff's slaves, being 
 allowed to go about on Sunday as they pleased, became 
 intoxicated ; and, wandering upon the defendant's track, 
 lay down and fell asleep at a point upon a straight line 
 in the road where they could be seen from an approaching 
 train, for more than a mile. They were, however, run 
 over by a passing train, one of them being killed and the 
 other seriously injured. The plaintiff argued that under 
 these circumstances the law should imply negligence upon 
 the part of the defendant's train-men, but the court held 
 that position not tenable, and insisted that being upon 
 
 ' Chicago, &c., R. R. Co. v. Bell, * 10 Ired. 402; S. C. 51 Am. Dec. 
 70 111. 102 ; Toledo, &c., R. R. Co. v. 395. 
 Riley, 47 Id. 514. 
 
394 RULE IN SPECIAL CASES. [§ 1 46. 
 
 the track, in a condition of helpless intoxication, was 
 in itself such contributory negligence as would prevent a 
 recovery. This is the rule consistently adhered to by all 
 the courts in actions brought by trespassers upon railway 
 property for injuries sustained in a fit of intoxication.^ 
 
 It is to be presumed that a person of mature years 
 will not stand still upon a railway track and deliberately 
 suffer himself to be run down. It is also a presumption 
 that all men are in the possession of their senses, and will 
 exercise ordinary diligence in times of danger to take 
 care of themselves. It is in accordance with these as- 
 sumptions held, that when an engineer of a locomotive- 
 engine sees ahead of him a man upon the track, he may 
 presume that the man possesses ordinary capacity, that 
 he can see, and hear, and reason from cause to effect, and 
 that, as a train approaches him, he will step aside and not 
 be run over. It is, therefore, not negligence on the part 
 of the engineer not to stop his train and go forward and 
 push such a person off the track, nor is it wrong not to 
 slacken the speed of the train, but to rely upon the per- 
 son on the track, if he may reasonably be supposed to see 
 or hear the train, to take care of himself.* The train-men 
 need not, in order to escape the imputation of negligence, 
 assume that persons they see upon the track are deaf or 
 blind, or paralyzed or idiots, but are justified in acting 
 freely upon the contrary assumptions. 
 
 1 Denman v. St. Paul, &c.. R. R. Louisville, &c., R. R. Co., 2 McMuU. 
 Co., 26 Minn. 357; McClelland v. 403 ; Southwestern R. R. Co. w. Han- 
 Louisville, &c., R. R. Co., 94 Ind. kerson, 61 Ga. 114; Weymire v. 
 276; Yarnallw. St. Louis, &c.. R. R. Wolfe, 52 Iowa, 543; Lake Shore, 
 Co., 75 Mo. 575; Little Rock, &c., R. &c., R. R. Co. v. Miller, 25 Mich. 
 R. Co. V. Pankhurst, 36 Ark. 371; 279. 
 
 Houston, &c., R. R. Co. v. Smith, 52 » Indianapolis, &c.. R. R. Co. v. 
 
 Texas, 178; Id. v. Sympkins, 54 Id. McClaren, 62 Ind. 568; Lake Shore, 
 
 615; s. c. 38 Am. Rep. 632; Illinois, &c., R. R. Co. v. Miller, 25 Mich. 
 
 &c., R. R. Co. V. Hutchinson, 47 111. 279; Philadelphia, &c., R. R. Co. v. 
 
 408; Manly v. Wilmington, &c., R. Spearen, 47 Penn. St. 304; Houston, 
 
 R. Co., 74 N. C. 655; Richardson v. &c., R. R. Co. v. Smith, 52 Texas, 
 
 Id. 8 Rich. (Law), 120; Felder v. 178. 
 
§ 146.] RULE IN SPECIAL CASES. 
 
 395 
 
 " If an engineer sees a team and carriage, or a man, 
 in the act of crossing the track far enough ahead of him 
 to have ample time, in the ordinary course of such move- 
 ments, to get entirely out of the way before the approach 
 of the engine ; or if he sees a man walking along upon 
 the track at a considerable distance ahead, and is not 
 aware that he is deaf or insane, or, from some other cause, 
 insensible of the danger ; or if he sees a man or a team 
 approaching a crossing, too near the train to get over in 
 time, he has a right to rely upon the laws of nature and 
 the ordinary course of things, and to presume that the 
 man driving the team, or walking upon the track, has 
 the use of his senses, and will act upon the principles of 
 common sense, and the motive of self-preservation, com- 
 mon to mankind in general, and that they will, therefore, 
 get out of the way ; that those on the track will get off, 
 and those approaching it will stop in time to avoid the 
 danger ; and he, therefore, has the right to go on without 
 checking his speed, until he sees that the team, or man, 
 is not likely to get out of the way, when it would become 
 his duty to give extra alarm by bell or whistle, and if 
 that is not heeded, then, as a last resort, to check his 
 speed or stop his train, if possible, in time to avoid dis- 
 aster. If, however, he sees a child of tender years upon 
 the track, or any person known to him to be, or from 
 his appearance giving him good reason to believe that 
 he is insane, or badly intoxicated, or otherwise insensible 
 of danger, or unable to avoid it, he has no right to pre- 
 sume that he will get out of the way, but should act upon 
 the belief that he might not or would not, and he should, 
 therefore, take means to stop his train in time, A more 
 stringent rule than this — a rule that would require the 
 engineer to check his speed, or stop his train, whenever 
 he sees a team crossing the track, or a man walking on 
 it, far enough ahead to get out of the way in time, until 
 
396 RULE IN SPECIAL CASES. [§ 1 46. 
 
 he can send ahead to inquire why they do not ; or which 
 would require the engineer to know the deafness or 
 blindness, or acuteness of hearing or sight, or habits of 
 prudence or recklessness, or other personal peculiarities, 
 of all those persons he may see appipaching, or upon the 
 track, and more especially of all those who may be 
 approaching the crossing upon a highway — though not 
 seen — any such rule, if enforced, must effectually put an 
 end to all railroads as a means of speedy travel or trans- 
 portation, and reduce the speed of trains below that of 
 canal boats, forty years ago, and would effectually defeat 
 the object of the legislature in authorizing this mode of 
 conveyance. But how are railway companies, or their 
 engineers or employees, to know the personal peculiari- 
 ties, the infirmities, personal character, or station in life, 
 of the hundreds of persons crossing or approaching their 
 track? By inspiration or intuition? And if they do 
 not know, then how and why shall the company be 
 required to run their road, or regulate their own conduct, 
 or that of their servants, by such personal peculiarities of 
 strangers, of which they know nothing ? These questions 
 suggest their own answers." ^ 
 
 An intoxicated person, it is, however, to be remem- 
 bered, is not, by reason of his intoxication, so far beyond 
 the pale of the law that he may be injured with impunity. 
 He is as much entitled to care and caution on the part 
 of others as though he were sober, and plainly much more 
 in need of it* Accordingly, if he is injured when, by the 
 exercise of ordinary care upon the part of the person 
 inflicting the injury, he might have escaped the injury, he 
 may, in spite of his intoxication, have his action,* 
 
 1 Lake Shore, &c., R. R. Co. v. O'Keefe v. Chicago, &c., R. R. Co., 
 Miller, 25 Mich. 279. See, also, 32 Iowa, 467 ; Whalen v. St. Louis, 
 Wharton on Neg., § 389, a. &c., R. R. Co., 60 Mo. 323. 
 
 2 Robinson v. Pioche, 5 Cal. 460; ' Kean v. Baltimore, &c., R. R. 
 
§ 146.] RULE IN SPECIAL CASES. 397 
 
 In an action to recover for injuries sustained by the 
 plaintiff to his property, by reason of the negligent and 
 careless conduct of the defendant, it is insufficient as a 
 defense to admit the injury, and aver that at the time the 
 damage was done, the defendant was intoxicated by 
 liquor, sold to him by the plaintiff.^ This sort of a plea 
 amounts to setting up the contributory negligence of the 
 plaintiff in selling liquor, by means of which the defend- 
 ant became intoxicated and did the damage, in bar of 
 the action. "Neither does the purchasing and drinking 
 of liquor constitute contributory negligence, which would 
 bar a recovery in an action in which it appears that the 
 plaintiff, having bought liquor from the defendant, drank 
 of it until he became intoxicated and unconscious ; and 
 in that condition was expelled from the defendant's 
 saloon late in the night, and died from the consequent 
 exposure.* From these two cases it appears that it is 
 not contributory negligence either to spll liquor to the 
 man who, when he is made drunk by it, does you an 
 injury, or to buy and drink the liquor yourself, although, 
 as a result of your spree, you suffer an injury at the 
 hands of the liquor-seller.* Intoxication is one of the 
 things that may be proven by the opinions of witnesses, 
 and it is held that in this particular, one need not be an 
 expert in order to be a competent witness.* It is, also, 
 error to exclude evidence that the plaintiff was intoxi- 
 cated at the time of the happening of the accident." 
 
 Co., 61 Md. 154; Houston, &c., R. 486; Brannon v. Adams, 76 111. 331; 
 
 R. Co. V. Reason, 61 Texas, 613; Thomp. on Neg. 779, § 2, and cases 
 
 Thomp. on Neg. 1 174, § 22. collected. 
 
 » Cassady v. Magher, 85 Ind. 228. « W^ynn v. AUard, 5 Watts & S. 
 
 « Weymirez'. W^olfe, 52 Iowa, 533. 524; Illinois, &c., R. R. Co. v. Cra- 
 
 » See, also, as in point, McCue v. gin, 71 111. i77- See, also, Cassedy 
 
 Klein, 60 Texas, 168; S. C. 48 Am. v. Stockbridge, 21 Vt. 391; Wood v. 
 
 Rep. 260. Andes, 11 Hun, 543; Rock Islands. 
 
 * People V. Eastwood, 14 N. Y. Vanlandschoot, 58 111. 485 ; Hubbard 
 
 562 ; McKee v. Nelson, 4 Cowen, v. Mason City, 60 Iowa, 400. 
 355 ; Woolheather v. Risley, 38 Iowa, 
 
398 RULE IN SPECIAL CASES. [§ 1 47. 
 
 While, what constitutes negligence, is a question of law— 
 the question, whether or not there was intoxication, be^ 
 longs to the jury as an issue of fact. 
 
 § 147. Deafness, blindness, or other physical infirmity 
 as a defense. — As a general rule of law, it may be said 
 that physical infirmities, of themselves, do not constitute 
 a defense for a failure to exercise ordinary care under 
 given circumstances. The bluntness of one faculty will 
 not excuse a failure to use the other — as, for an example, 
 deafness will not operate to palliate a failure to use the 
 sense of sight. When one is conscious that his hearing 
 is defective, instead of exercising less, he should, rather, 
 exercise greater care in other respects. What is lacking 
 in the sense of hearing, must, if possible, be made up 
 by increased vigilance in looking out for danger with the 
 eye.^ 
 
 And so, also, in case of blindness, common prudence 
 requires that the blind should exercise far greater care 
 in proportion to the danger to which men, in general, 
 are constantly exposed, than is required of those in full 
 possession of the faculty of sight.* The old and the 
 infirm, however, not less than the young and the agile, 
 have a right to move about and attfend to their business, 
 and are entitled to the protection of the law in so doing.* 
 Says Chief Justice Hunt, in the opinion in the case of 
 
 1 Cleveland, &c., R. R. Co. v. Boston, &c., R. R. Co., 115 Mass. 
 
 Terry, 8 Ohio St. 570; Central, &c., 190. 
 
 R. R. Co. V. Feller, 84 Penn. St. 226; 2 Oyshterbank v. Gardner, 49 N. 
 
 Morris, &c., R. R. Co. v. Haslan, 38 Y., Super. Ct. 263; Winn v. Lowell, 
 
 N.J. Law, 147; [but compare with i Allen, 177; Sleeper v. Sandown, 
 
 this case, New Jersey, &c., Trans. 52 N. H. 244; Peach v. Utica, 10 
 
 Co. V. West, 32 N. J. Law, 91]; Hun, 477; cf. City of Centralia v. 
 
 Steves w. Oswego, &c., R. R. Co., 18 Krouse, 64 111. 19; Davenport v. 
 
 N. Y. 422; Butterfield v. Western, Ruckman, 37 N. Y. 568; Thomp-. on 
 
 &c., R. R. Co., 10 Allen, 532; Chi- Nag. 431, § 9, 1203, § 51. 
 
 cago, &c., R. R. Co. v. Still, 19 111. ^ Stewart v. Ripen, 38 Wis. 584; 
 
 508; Illinois, &c., R. R. Co. ^'. Ebert, Davenport v. Ruckman, 37 N. Y. 
 
 74 Id. 399; Hanover, &c., R. R. Co. 568; cf. Phillips v. Dickerson, 85 111. 
 
 V. Coyle, 54 Penn. St. 396; Elkins v. u. 
 
§ I47'] RULE IN SPECIAL CASES. 
 
 399 
 
 O'Mara v. Hudson, «Scc„ R. R. Co.:^ "The old, the lame, 
 and the infirm, are entitled to the use of the street, and 
 more care must be exercised towards them by engineers 
 than towards those who have better powers of motion. 
 The young are entitled to the same rights, and cannot be 
 expected to exercise as good foresight and vigilance as 
 those of maturer years." 
 
 Physical disabilities of the character considered in 
 this section, which may be designated as natural or prov- 
 idential disabilities, are to be conceded a far higher 
 indulgence in the law than the self-inflicted disability of 
 drunkenness. It may be said that men make themselves 
 drunk at their own proper peril, but men are not to be 
 held blind, or deaf, or lame, or aged, in any such sense. 
 " A blind man is not required to see at his peril," says 
 Mr. Justice Holmes.^ Toward these classes of persons,' 
 it is a well settled rule that there is required to be exer- 
 cised by the public generally especial care and prudence, 
 while, perhaps, all that can be said of a drunken man in 
 this respect, is that he is not to be wantonly injured.* 
 
 It is plainly the law that negligence will never be 
 imputed to the halt, or the blind, or the deaf, simply and 
 solely because they go about their business, as other men 
 do, in as careful a way as their faculties permit. Such* 
 conduct upon the part of such person, is never, in se, 
 contributory negligence. They must exercise what care 
 they can — up to the measure of ordinary care, under the 
 circumstances, and if they do, there is no room to impute 
 negligence. "A person may walk or drive in the dark- 
 ness of the night, relying upon the belief that the corpo- 
 ration has performed its duty, and that the street or the 
 
 ' 38 N. Y. 445. §§ 198, 199 ; Wharton on Neg., §§ 306, 
 
 » Holmes' Common Law, 109. 307, 332, 389, a ; Shear. & Redf. on 
 
 " Illinois, &c., R. R. Co. v. Hutch- Neg., § 413. 
 inson, 47 111. 408 ; Field on Damages, 
 
400 RULE IN SPECIAL CASES. [§ 1 48. 
 
 walk is in a safe condition. He walks by a faith justified 
 by law, and if his faith is unfounded, and he suffers an 
 injury, the party in fault must respond in damages. So 
 one whose sight is dimmed by age, or a near-sighted 
 person whose range of vision was always imperfect, or 
 one whose sight has been injured by disease," [and it 
 might have been added, in view of the caution in the 
 succeeding sentence, one wholly blind, or deaf, or other- 
 wise a victim of some disabling physical- infirmity,] "is 
 each entitled to the same rights, and may act upon the 
 same assumption. Each is, however, bound to know 
 that prudence and care are in turn required of him, and 
 that if he fails in this respect, any injury he may suffer is 
 without redress."^ 
 
 § 1 48. Negligence as a defense in actions upon policies 
 of insurance. — The negligence of the assured, his agents 
 or servants, in the absence of fraud or wilfulness, occasion- 
 ing a loss by a peril insured against, is no defense to an 
 action, either on a fire or marine policy.^ As it is often 
 expressed, loss occasioned by negligence is one of the 
 principal risks against which men insure. So the insur- 
 ance company has been held liable where the accident 
 arose from the careless use of fire in drying the plastering 
 
 » Davenport v. Ruckman, 37 N. Y. Gates v. Madison, &c., Ins. Co., 5 N. 
 
 568, (Hunt, C. J.,) affirming s. c. 10 Y. 469; s. C. 55 Am Dec. 360; Tilton 
 
 Bosw 20. See, also, Cox v. West- v. Hamilton Ins. Co., i Bosw. 392; 
 
 Chester Turnpike Co., 33 Barb. 413; O'Brien v. Commercial Ins. Co., 6 
 
 Frost V. Waltham, 12 Allen, 85; Jones & S. 526; Brown w. Kings Co., 
 
 Thompson v. Bridgewater, 7 Pick. &c., Ins. Co., 31 How. Pr. 512; Bui- 
 
 188; Renwick v. New York, &c., R. man v. Monmouth Ins. Co.. 35 Me. 
 
 R. Co., 36 N. Y. 133; Holmes' Com- 227; Johnson v Berkshire Ins. Co., 4 
 
 mon Law, 109 ; Thomp. on Neg. Allen, 388 ; Columbia Ins. Co. v. 
 
 1203, S SI- Lawrence, 10 Peters, 517; Waters v. 
 
 * American Insurance Co. 7/. Insley. Merchants Ins. Co., 11 Id. 213; Hen- 
 
 7 Penn. St. 223; S. C. 47 Am. Dec! derson w. Western. &c., Ins. Co., 10 
 
 509; Hillier v. Allegheny, &c., Ins. Rob. (La.) 164; S. C. 43 Am. Dec. 
 
 Co , 3 Penn. St. 470; s. C. 45 Am. Dec. 179; Sherwood v. General Ins. Co., i 
 
 656, and note; Cumberland, Ac, Ins. Blatchf. 255; Shaw v. Robberds, 6 
 
 Co. V. Douglas, 58 Penn. St. 419; Ad. & El. 75; May on Insurance, 
 
 Nelson v. Suffolk Ins. Co., 8 Cush. 497 ; §§ 407-41 1 . 
 
§ 148.] RULE IN SPECIAL CASES. 4OI 
 
 of a room,^ or from the negligent use of fire in compound- 
 ing chemicals in a drug store.^ Neither will the use of 
 the premises as a house of prostitution avoid the policy 
 if there is nothing in the policy forbidding it.* But 
 where the negligence is so gross as to squint at fraud, or 
 to amount to positive misconduct and wrong-doing, as 
 where a steamboat captain, in order to increase the speed 
 of his boat for the purpose of winning a race, makes use 
 of turpentine^ for fuel, and in consequence the boat takes 
 fire and burns up, the insurer is not liable.* 
 
 So, also, in respect of policies of life insurance, it is 
 the rule that accidental or unintentional self-destruction 
 is not within a condition forfeiting a policy for suicide." 
 This is equally the rule " whether death result from taking 
 poison by mistake, supposing it a wholesome medicine, 
 or taking an overdose of a dangerous medicine ; or from 
 an act done in frenzy or delirium, as by leaping from a 
 window, tearing off a bandage from an artery ; or from an 
 act done under the stress of an overpowering force " * as, 
 for an example, where one, being intoxicated, took poison 
 by mistake without intent to destroy his life,^ or where 
 one holding an accident policy, was injured in carelessly 
 attempting to jump on to the step of an omnibus while 
 in motion.^ But, in Iowa, it was held where one was 
 insured against accidents, while traveling on the convey- 
 
 ' Troy, &c., Ins. Co. v. Carpenter, Co., 102 Mass. 227; Knickerbocker 
 
 4 Wis. 29. Life Ins. Co. v. Peters, 42 Md. 414; 
 
 * Brown v. Kings Co., &c., Ins. Penfold v. Universal Life Ins. Co., 85 
 Co., 31 How. Pr. 512. N. Y. 317; S. C. 39 Am. Rep. 660; 
 
 ' Behler v. German, &c., Ins. Co., May on Insurance, § 307. 
 
 68 Ind. 353. " Mr. Freeman's note, 59 Am. Dec. 
 
 * Citizens, &c., Ins. Co. v. Marsh, 5 489, § 3. 
 
 Penn St. 387. ' Equitable Life Ass. Soc. v. Pater- 
 
 ° Breasted v. Farmer's Loan & son, 41 Ga. 338 ; s. C. 5 Am. Rep. 
 
 Trust Co., 8 N. Y. 299; S. C. 59 Am. 535; S. C. 3 Bigelow's Life & Ace. 
 
 Dec. 482 ; Dean v. American Mutual Ins. Cas. 534. 
 
 Life Ins. Co., 4 Allen, 102: S. C. i * Champlin v. Railway Passenger 
 
 Bigelows Life & Ace. Ins. Cas. 195; Ins. Co., 6 Lans. 71. 
 Cooper V. Massachusetts, &c., Ins. 
 
 26 
 
402 RULE IN SPECIAL CASES. [§ I49, 
 
 ances of any common carrier, provided he complied with 
 the rules and regulations of the carrier, and exercised due 
 diligence looking to his self -protection, and while riding 
 on a railway train, stood upon the step of the car, upon 
 approaching a station, in violation of the carriers rule, 
 which was known to him, and was in consequence thrown 
 from the train and injured, that there could be no recovery 
 on'the policy.^ 
 
 § 149. In actions against telegraph companies for 
 failure in the transmission or delivery of telegraphic 
 dispatches. — In Koons z^. Western Union Telegraph Co.,' 
 it was held that where the sender of a telegraphic dis- 
 patch, intending to write a certain word, negligently 
 writes what more resembles another word — " two " being 
 so written as to appear to be "ten" — the telegraph com- 
 pany is not liable for damages caused by transmitting the 
 word as it appeared to be written, which is perhaps equiv- 
 alent to a rule that, in dealing with a telegraph company, 
 illegible chirography will be held, if it occasion any trouble 
 or injury, such negligence or default on the part of the 
 sender of the dispatch as will prevent his recovery of 
 damages from the company. 
 
 In Given v. Western Union Telegraph Co.,* it was 
 held, by Mr. Justice Miller, that when a message is sent 
 to one who is at the time of its receipt out of town, and 
 consequently not at his usual place of business, and the 
 company delivers the message to his wife at his house, 
 who does not know where her husband is, and cannot, 
 
 » Bon V. Railway Passenger Assur- learned annotation at pages 487-497; 
 
 ance Co , 56 Iowa, 664; S. C. 41 Am. Bliss on Life Ins., § 228; Bunyon on 
 
 Rep. 127. See, also, as in point upon Life Ass. (2d. Ed.) 71; May on Ins., 
 
 the general question of accidental self- § 308; Reynolds on Life Ins., 105, 
 
 destruction as a defense as distin- 107. 
 
 guished from suicide, Breasted v. ' 102 Penn. St. 164. 
 
 Farmer's Loan & Trust Co., 8 N. Y. ^ U. S. Circ. Ct., S. D., Iowa, June 
 
 299; s. C. 59 Am. Dec. 482, and the 11, 1885, 24 Fed. Rep. 119. 
 
§ 150.] RULE IN SPECIAL CASES. 403 
 
 therefore, forward the dispatch to him promptly, the 
 failure of the husband to inform his wife of his where- 
 abouts for the day, or his failure to notify the telegraph 
 company in advance where he may be reached, or the 
 failure of the wife to act promptly to the end of getting 
 the dispatch into her husband's hands, amounts to such 
 contributory negligence upon the part of the plaintiff as 
 will defeat a recovery of damages for any injury resulting 
 from the failure to receive the dispatch promptly.* 
 
 § 150. The rule in the Admiralty. — In Admiralty the 
 matter of negligence and contributory negligence is dealt 
 with in a peculiar way. When one brings his action in 
 the Court of Admiralty for damages for an injury he has 
 sustained in collision by reason of the culpable negli- 
 gence of another, the plaintiff's own contributory negli- 
 gence is not a defense as in a court of English common 
 law, neither is there a comparison instituted between the 
 negligence of plaintiff and defendant, to the end that a 
 judicial balance may be struck as is the rule in Illinois, 
 nor does the plaintiff's negligence, as in Georgia and Ten- 
 nessee, go in mitigation of damages. 
 
 The general principles of the law maritime on which 
 depend the right to recover in the Court of Admiralty 
 for damage arising by collision, were thus stated by Lord 
 Stowell:^ 
 
 * Haec fabula docet that, when a is considered at length, and many 
 
 man goes away from home, if only cases are collected. Western Union 
 
 for a day, he must, in order to render Telegraph Co. v. Reynolds, 77 Va. 
 
 the Western Union Telegraph Com- 173; S. C. 46 Am. Rep, 715. 
 
 pany liable for a failure to deliver his 2 u-rhe Wardrop-Sims, Jones, 2 
 
 dispatches promptly, tell his wife Dods. 83, 85, cited by Lord Gifford 
 
 where he is going, oral the very least, in the House of Lords; Hay v. Le 
 
 notify the company before he leaves, Neve, 2 Shaw's Appl. Cases, 395 ; who 
 
 where he may be reached during that also cited a similar statement of the 
 
 day. See, also. Western Union Tele- law by the same learned judge, from 
 
 graph Co. v. Blanchard, 68 Ga. 299 ; a MS. note of the case of The Lord 
 
 S. C. 45 Am. Rep. 480, and Mr. Melville, 18 16, ibid. See The Cathe- 
 
 Browne's extended annotation, where- rine of Dover, Dawson, 2 Hagg. Ad. 
 
 in the liability of telegraph companies 145, 154.'' I have taken this citation 
 
404 RULE IN SPECIAL CASES. [§ 150. 
 
 " There are four possibilities under which a loss of this 
 sort may occur. 
 
 " ist. It may happen without blame being imputed 
 to either party ; as, where a loss is occasioned by a storm, 
 or by any other vis major ; in that case, the misfortune 
 must be borne by the party on whom it happens to light ', 
 the other not being responsible to him in any degree. 
 
 " 2ndly. A misfortune of this kind may arise where 
 both parties are to blame, where there has been a want 
 of skill and due diligence on both sides ; in such a case, 
 the rule of law is, that the loss must be apportioned be- 
 tween them, as having been occasioned by the fault of 
 both. 
 
 " 2,i^dly. It may happen by the misconduct of the 
 sufFerin,g party alone ; and then the rule is, that the suf- 
 fering party must bear his own burthen. 
 
 " /^thly. It may have been the fault of the ship, which 
 ran the other down ; and in this case, the injured party 
 would be entitled to an entire compensation from the 
 other." 
 
 Upon these four famous propositions, formulated and 
 declared by the foremost of English admiralty judges, 
 hangs all the law in admiralty upon the matter of the 
 recovery of damages in collision. 
 
 " These rules," says Mr. Maclachlan,^ "with a differ- 
 ence to be immediately pointed out, are also the law of 
 the French Code," which differs from the French Ordi- 
 nance of 1681^ only in this, that the modern law, im- 
 proved by the clear expositions of Emerigon,^ and Valin^ 
 
 and note bodily, from Maclachlan's reduces the third and fourth rules into 
 
 " Law of Merchant Shipping," 3d Lon- one. 
 
 don Edition (1880), page 304. a Liv. 2, t. 7, art. 10, 11. 
 
 * "Law of Merchant Shipping"' ' Emerigon des Assur. vol. I. page 
 
 cited, supra, page 305. 408, c. 12, § 14. 
 
 8 Code de Com., art. 407, which » 2 Valin, 178, 179, 180. 
 
§ r50.j RULE IN SPECIAL CASES. 405 
 
 provides for the case of accidental collision.* The defect, 
 so remedied in the French law, exists in the laws of 
 Oleron^ and of Wisby,* from which the ordinance of 
 Louis XIV. borrowed extensively ; and yet the principle 
 overlooked in these earlier and later codes, is obviously 
 accepted by the Digest,* the common source of much of 
 the legislation of those times." 
 
 " It has been," the same writer continues, " the custom 
 of writers upon jurisprudence, to bestow much attention 
 and but little praise on a rule somewhat resembling the 
 second of these,^ in consequence of its dividing the loss, 
 between the parties for a reason quite unknown to Eng- 
 lish Law, which the jurists of Cleirac's time cdlled. judici- 
 um rusticorum, the rule of arbitrators who compromise 
 where they cannot decide." 
 
 It is with the second of Lord Stowell's rules that, for 
 the purposes of this treatise, we have to do. Where 
 both parties are in fault, it is, in accordance with this 
 rule, settled law in courts of admiralty, that the loss shall 
 be equally divided between them. This rule is univers- 
 ally declared by all the foreign ordinances and jurists, 
 and is universally applied both here and in England in 
 admiralty.® 
 
 I have found no better elucidation of the rule in 
 question than that contained in the letter of the Regis- 
 trar of the Admiralty Court in London to Lord Chan- 
 cellor Selborne, written in 1873, when the Lord Chan- 
 <:ellor moved his bill in the House of Lords, which 
 
 » Boulay-Paty, Droit Marit, vol. Continental, 14 Wall. 345 ; The Con- 
 
 IV, 492, t. 12, § 6. stitution, Gilp. 579; Boggs v. Parr, 3 
 
 2 Oleron, art. 15— i Pardess, 334. Hughes, 504; Vaux z*. Sheffer, 8 Moo. 
 
 ' Wisby, art. 29, 30, 49, 50, 51, P. C. 75; The Sappho, 9 Jur. 560; 
 
 65—1 Pardess, 481 ^/ j^f. I Parson's Mar. Law, 189; Lees' L. 
 
 * Dig. 9, 2, 29, § 2 and 4. Brit. Sh. 255 ; 3 Kent's Com. 231 ; 
 
 = Lord Stowells' Rules, supra. Maclachlan's L. of Merch. Sh. ; (3d 
 
 « The Baltimore, 8 Wall. 377; The London ed.), ch. VI, pp. 304-321, incl. 
 Catharine, 17 How. (U. S.) 170; The 
 
4o6 
 
 RULE IN SPECIAL CASES. 
 
 [§ 150. 
 
 afterwards became law as the Supreme Judicature Act,^ 
 in which it was proposed to abolish the difference between 
 the common law courts and the Court of Admiralty in 
 damage causes at sea, by extinguishing with a stroke of 
 the pen this ancient rule. Mr. Rothery, the Registrar, 
 comes to the defense of the rule in a letter addressed 
 to the Lord Chancellor, an extract from which I have 
 set out in the note,*^ in which, assuming that the rule is 
 
 1 36 and 37 Vict. ch. 66 (1873). 
 
 ^ The learned Registrar says, omit- 
 ting such part of the letter as is 
 prefatory and complimentary : 
 
 "I will take your Lordship's fig- 
 ures, and will assume that A and B 
 are the owners of two vessels, worth 
 respectively 10,000/. and 50,000/. ; 
 that they come into collision, and that 
 both alike are to blame for the colli- 
 sion, that being a condition precedent 
 to the equal division of the damages. 
 
 " And, first, I will assume that A's 
 vessel goes to the bottom, and that B's 
 is uninjured — a not very unusual occur- 
 rence in collision at sea. Then A, who 
 has lost 10,000/. by the sinking of his 
 vessel, would, under the Admiralty 
 rule, both being to blame, be entitled 
 to recover one half of his loss, or 
 5,000/. from B. 
 
 ' ' Secondly. Let us assume that B's 
 vessel goes to the bottom, and that 
 A's is uninjured; then B, who has 
 lost 50,000/. by the sinking pf his 
 vessel, will be entitled to recover one 
 moiety of his loss, or 25,000/. from A. 
 
 " Thirdly. I will suppose that both 
 go to the bottom, both being alike to 
 blame for the collision. Then A, 
 having lost 10,000/ by the sinking of 
 his vessel, is entitled to recover 5,000/. 
 from B, for a moiety of his damage ; 
 while B is entitled to recover 25,000/ 
 from A, for the moiety of his damage. 
 Each loses 30,000/. ; A, by having to 
 bear the loss of one moiety of his own 
 vessel, or 5,000/, and by having to 
 pay toB 25,000/. for the moiety of 
 his, B's, loss; and B, by having to 
 bear the loss of one moiety of his own 
 vessel, or 25,000/., and by having to 
 
 pay to A 5,000/ fot- a moiety of his^ 
 A's, loss. The mistake of those who 
 think that the owner of a vessel 
 worth 10,000/. might, by a collision, 
 with a vessel worth 50,000/., recover, 
 under the Admiralty law, no less a 
 sum than 30,000/. as a compensation, 
 arises from their supposing that the 
 amount at stake is a common fund, 
 to be divided between two claimants, 
 not a joint loss which has to be appor- 
 tioned between them. 
 
 Let us now see what the result 
 would be under the Common Law 
 rule, where, if both are to blame, 
 neither can recover anything. In the 
 first of the three cases cited above, 
 the whole loss of 10,000/. would fall 
 upon A ; in the second, the whole loss 
 of 50,000/. would fall upon B; and 
 in the third case, B's loss would be 
 50,000/, while A's loss would be 
 only 10,000/, or one-fifth part that of 
 B. And this, too, be it observed, 
 although both may have been equally 
 to blame for the collision, and although 
 the fact whether one or both went t* 
 the bottom would depend very much 
 upon the accident, of which parts of 
 the two vessels came into collision. 
 A rule which depends upon so mere 
 an accident can, I venture to submit, 
 hardly be so equitable as the rule 
 which directs that a loss, resulting 
 from the common fault of two parties, 
 shall be equally divided between 
 them." " A Defense of the Rule of 
 the Admiralty Court, etc., in a letter 
 to the Right Hon. Lord Selbome, 
 etc., by H. C. Rothery, M. A., Reg- 
 istrar, etc., 1873." 
 
§ I5I-] RULE IN SPECIAL CASES. 407 
 
 misunderstood and, taking his cue from the argument 
 against it in the House of Lords, he argued with such 
 force and cogency of logic in its favor that, in the Judi- 
 cature Act as finally adopted, the rule is not only pre- 
 served as to the Courts of Admiralty, but is made the 
 rule of the other courts in like case, where it used not 
 to be.^ 
 
 In this country, however, as in England prior to the 
 passage of the Supreme Judicature Act,* when an action 
 for collision is brought in a court of common law, the 
 admiralty rule is disregarded, and if the plaintiff, by his 
 own negligence, contributed in any degree to occasion 
 the collision, he has no remedy.* 
 
 § 151. Contributory negligence as a defense in actions 
 between attorney and client. — We find very few reported 
 cases of actions brought against attorneys for negligence,* 
 and, therefore, few cases in which the contributory neg- 
 ligence of the client is pleaded as a defense. In such 
 decisions as there are, we find the case turning rather on 
 the right than the measure of the recovery.® 
 
 ^ 36 and 37 Vict. ch. 66, § 25, subs. 9. edition), 635, in the note, it is sug- 
 
 * 36 and 37 Vict. ch. 66. gested that the reason for the paucity 
 ■' Broadwell v. Swigert, 7 Ben. M. of authorities upon this point is, either 
 
 39 ; S. C. 45 Am. Dec. 47 (and the that attorneys are " a very faithful 
 note); Arctic Fire Ins. Co. z/. Austin, class,'' or "very skillful in covering 
 69 N. Y. 470; Owners of the steam- the traclcs of any devious steps.'' 
 boat Farmer v. McCraw, 26 Ala. ' Godefroy v. Jay, 7 Bing. 413; 
 189; S. C. 62 Am. Dec. 718; Van- Hoby v. Built, 3 Barn. & Ad. 350; 
 derplank v. Miller, i Moody & M. Langdon v. Godfrey, 4 Fost. & Fin. 
 169 (by Lord Tenterden.) See, also, 445. "In other cases where their 
 The Clara, 102 U.S. 200; The Mor- negligence has been such as to furnish 
 gan V. The Zebra, 2 Hughes, 64; aright of action against them (/. «., 
 The R. L. Maybey, 4 Blatchf. 88; actions of negligence by clients against 
 The Scranton and The Emerald Isle, their attorneys), the rule of damages 
 2 Ben. 25 ; The Morning Light, 2 is the same with that in like case 
 Wall. 550; Union S. S Co. 2/. New against sheriffs. The plaintiff is en- 
 York and Virginia S. S. Co., 24 How. titled to be in the same position as if 
 (U. S.)307; I Parson's Shipping and the attorney had done his duty." 
 Adm. 525; Abbott's Shipping, 230; Sedgwick on Damages (6th ed.), 635, 
 2 Sedgwick on Damages (7th edition), citing Tatham v. Lewis, 65 Penn. St. 
 351 (note); Cohen's Adm. 215, 224. 65. See. also, 2 Sedg. on Dam. (7th 
 
 * In Sedgwick on Damages (6th ed.) 447, (note) ; and Weeks on At- 
 
4o8 RULE IN SPECIAL CASES. [§ 1 5 1. 
 
 In the recent case of Read v. Patterson,^ the contrib- 
 utory negligence of the client is expressly held a bar to 
 an action upon his part, for damages sustained by reason 
 of the negligence of his attorney, and aside from this 
 single adjudication, I have not found any case in point. 
 It appears that, in i860, Patterson placed in the hands 
 of his attorney, Read, some notes for collection ; that 
 Read obtained a judgment upon each of the notes, and 
 that executions were issued in due time and severally 
 returned unsatisfied. Then came the war ; inter arma 
 silent leges; which is to say, returning to the vernacular, 
 that nothing further was done, tdward collecting these 
 notes, until 1866, when Read had alias executions issued, 
 upon which returns were not made up to the time when 
 this suit was brought, in 1871. The plaintifFhad judgment 
 against his attorney in the court below for the whole amount 
 of the judgments remaining unpaid, but upon appeal, the 
 court held that, although the defendant was negligent 
 in not collecting the money, inasmuch as the judgment 
 debtor was perfectly solvent during all the years which had 
 elapsed since the issuing of the alias executions, yet that 
 negligence not being the proximate or natural occasion 
 of the loss, the plaintiff ought not to recover, for the 
 plain reason that he himself, at any time, without refer- 
 ence to what his attorney did, or omitted to do, might 
 have had executions issued upon the judgments, which 
 could have been collected ; that this failure upon the 
 part of the plaintiff to proceed as he might have 
 done, was the true proximate cause of his failure to get 
 his money, and that, having employed other counsel to 
 assist in enforcing the claim, which, in fact, as it appears, 
 was practically a repudiation of the defendant as his 
 
 tomeys at Law, ch. xii., page 470, ered, and a great number of cases are 
 
 in which the liability of attorneys to cited. 
 
 their clients, with respect of negli- ' 1 1 Lea, (Tenn.) 430. 
 
 gence generally, is very fully consid- 
 
§ 1 52- J RULE IN SPECIAL CASES. 
 
 409 
 
 attorney in the premises, which counsel also failed to 
 take the proper steps to collect the judgments, he was 
 guilty of such contributory default as would prevent a 
 recovery from the defendant. This decision, reversing 
 the judgment of the court below, was rendered at the 
 April term, 1883— more than twenty-three years after 
 Read obtained the original judgments — and granted a 
 new trial. 
 
 § 152. Itt actions between physician and patient. — 
 It is a well settled rule of law that when a patient has, 
 by his own imprudence, negligence, or disregard of the 
 directions of his physician, directly contributed to the 
 aggravation of his disease or disorder, he cannot recover 
 damages for anything which is the result of mere negli- 
 gent or unsuccessful treatment by the physician. Con- 
 tributory negligence here, as in any other case, is a bar 
 to the action. Many cases in all the courts enforce this 
 rule.' 
 
 " Nothing can be more clear," said Mr. Justice Wood- 
 ward,* "than that it is the duty of the patient to co- 
 operate with his professional adviser, and to conform to 
 the necessary prescriptions ; but if he will not, or, under 
 the pressure of pain, cannot, his neglect is his own wrong 
 or misfortune, for which he has no right to hold his sur- 
 geon responsible. No man may take advantage of his 
 own wrong, or charge his misfortune to the account of 
 another." 
 
 If the patient is insane, and so incapable of exercising 
 
 * Potter V. Warner, 91 Penn. St. 168; Bogle v. Winslow, S Phila. 136 
 
 362; S. c. 36 Am. Rep. 668; Gwynn Geiselman v. Scott, 25 Ohio St. 86 
 
 V. Duffield, 61 Iowa, 64; S. C. 47 Wohlfahrt 7/. Beckert, 92 N. Y. 490 
 
 Am. Rep. 802; Hibbard v. Thomp- s. C. 44 Am. Rep. 406; Thomp. on 
 
 son, 109 Mass. 286; McCandless w. Neg. 1215, § 63; Whart. on Neg., 
 
 McWha, 22 Penn. St. 261 ; S. C. 25 § 737 ; Shear. & Redf. on Neg., § 443. 
 Id. 95; Haire v. Reese 7 Phila. 138 ; ' McCandless v. McWha, 22 Penn. 
 
 Chamberlin v. Morgan, 68 Penn. St. St. 261, supra. 
 
4IO 
 
 RULE IN SPECIAL CASES. [§ 1 5 2. 
 
 proper care, or of co-operating with his physician, con- 
 tributory negligence is not to be imputed to him, and 
 the physician is bound to take a just account of this 
 incapacity on the part of his patient, and act accordingly,^ 
 
 In Hibbard v. Thompson,'' it is held that, in an action 
 of negligence brought by a patient against his physician, 
 in which it appears that, although the plaintiff, while 
 under treatment, has injured himself by his own careless- 
 ness, the physician has also inflicted a distinct and sep- 
 arate injury by careless and unskillful treatment, the 
 plaintiff may have his action, provided that the injurious 
 results of the patient's negligence can be distinctly and 
 clearly separated and distinguished from those which 
 flowed from the malpractice of the physician ; or, in other 
 words, that when in actions of this nature the damages 
 are capable of apportionment, so that it can be made to 
 appear with reasonable distinctness what part is due to 
 the plaintiff's neglect and what to the wrong-doing of 
 the defendant, then an action may be maintained by the 
 plaintiff for the injury resulting from the defendant's 
 separate default.* 
 
 It is not, however, contributory negligence for a 
 patient, after one physician has injured him by negli- 
 gent treatment, to refuse to allow another physician to 
 make a somewhat dangerous experiment upon him for 
 the purpose of repairing the injury, unless there is rea- 
 sonable assurance of the success of the experiment.* 
 In the case in which this doctrine is declared, the court 
 says : " Is it the duty of a person who has been in- 
 jured by the malpractice of a physician or surgeon, to 
 make any experiment which may be suggested to him, 
 however plausible it may appear ? A man who is not 
 
 » People V. New York Hospital, ' Cf., §24, supra. 
 (by Ordronaux, C.) 3 Abb. N. C. 229. * Chamberlin v. Morgan, 68 Penn. 
 2 109 Mass. 286. St. 168. 
 
§ I53-] RULE IN SPECIAL CASES. 411 
 
 himself a physician, and cannot be expected to know 
 anything upon the subject, cannot be himself a judge of 
 such matters. It was very reasonable for the father of 
 Hattie Morgan to say, when Dr. Richardson proposed to 
 put her under the influence of an anaesthetic and attempt 
 to reduce the limb, ' that, so long as she was improving 
 ^o fast as she had done since he came home, he should 
 not have it disturbed.' Had Dr. Chamberlin proposed 
 this experiment, there might be some reason to hold that 
 he should have the opportunity of redeeming his mistake ; 
 or even if he had called in Dr. Richardson to act on his 
 behalf. Mr. Morgan merely requested Dr. Richardson to 
 examine his daughter's arm and give his opinion about it. 
 That did not oblige him to adopt his advice, or to incur 
 the hazard and expense of another operation. He owed 
 no such duty to Dr. Chamberlin. It was offered to prove 
 that the injury could then have been reduced. But how 
 was Mr. Morgan or Hattie to have known this ? Had 
 the experiment failed it might well have been urged that, 
 as she was improving, she ought to have been let alone, 
 and that Dr. Chamberlin was relieved from all responsi- 
 bility by the case having been taken out of his hands." ^ 
 
 § 153. In actions between innkeeper and guest. — The 
 innkeeper, like the common carrier, is an insurer, and re- 
 sponsible to his guests, for losses and damage of every 
 character, except such as are occasioned by the act of God, 
 the king's enemy, or the party complaining.* Another 
 view of the innkeeper's liability is that he is excused for 
 losses occasioned by vis major, or irresistible force, such as 
 
 » Chamberlin v. Morgan, supra. Rep. 5 ; and contra. State v. Schulr, 
 Upon the question of the liability of 55 Iowa, 698 ; S. C. 39 Am. Rep. 187. 
 the physician in general for negli- » Chitty on Contracts, 675; Parsons 
 gence or ignorance, see State v. Har- on Contracts, vol. 2, p. 146 ; Story on 
 dister, 38 Ark. 605; s. C. 42 Am. Contracts, vol. 2, §909; Saunders on. 
 
 Neg. 212. 
 
412 RULE IN SPECIAL CASES. [§ 1 53. 
 
 robbery and fire.^ But whether the innkeeper is to be 
 held to the one degree of liability or the other, it is plain 
 that he is liable for losses occasioned by theft, unless the 
 contributory negligence of the guest is the proper proxi- 
 mate cause of the loss.^ It is not contributory negligence, 
 as a matter of law, in the guest not to lock or bolt his 
 door. At most, it is only a circumstance to go to the 
 jury upon the question of the guest's negligence.* This 
 is the ancient learning in Cayle's Case : * " The innkeeper 
 in that case," saith Lord Coke, " is bound in law to keep 
 them " [the goods of his guest] " safe without any steal- 
 ing or purloining, and it is no excuse for the innkeeper to 
 say that he delivered the guest the key of the chamber 
 door in which he is lodged, and that he left the chamber 
 door open ; but he ought to keep the goods and chattels 
 of his guest there in safety. And, although the guest 
 doth not deliver his goods to the innkeeper to keep, nor 
 acquaints him with them, yet, if they be carried away or 
 stolen, the innkeeper shall be charged. And, although 
 they who stole or carried away the goods be unknown, 
 yet the innkeeper shall be charged. But if the guest's 
 
 1 Story on Bailments, § 472 ; Redf. El. & Bl. 891 ; Armistead v. Wilde, 
 on Carriers, § 596; Wharton on Neg., 17 Q. B. 261. It is not within the 
 I 678 ; 2 Kent's Com. 593 ; Thomp- proper scope of this treatise to con- 
 son on Neg. 121 5, §62. sider the liability of innkeepers in 
 
 s Mason ?/. Thompson, 9 Pick. 280; detail under the various statutes 
 
 S. C. 20 Am. Dec. 471 ; Dickinson v. which affect that liability in England 
 
 Winchester, 4 Cush. 121; Houser w. and in every State in the Union. 
 
 TuUy, 62 Penn. St. 92 ; S. C. i Am. The careful practitioner need not be 
 
 Rep. 390 ; Clute v. Wiggins, 14 reminded, however, that such a stat- 
 
 Johns. (N. Y.), 175 ; s. C. 7 Am. Dec. ute will almost certainly, in any juris- 
 
 449, and note; Dunbier v. Day, 12 diction, need to be consulted when a 
 
 Neb. 596 ; S. C. 41 Am. Rep. 772 ; case of this nature is in hand. 
 
 Murchison v. Sergent, 69 Ga. 206 ; S. » Oppenheim v. White Lion Hotel 
 
 C 47 Am. Rep. 754 ; Lanier v. Young- Co., L. R. 6 C. P. 515 ; Spice v. Ba- 
 
 blood, 73 Ala. 587 ; Addison on Torts con, L. R. 2 Exch. Div. 463 ; Bohler 
 
 (Dud. & Bay. ed.), 612, 613, 614; Sto- v. Owens, 60 Ga. 185 ; Classen v. Le- 
 
 ry on Contracts, § 748 ; 2 Kent's Com., opold. 2 Sweeney, 705 ; Cayle's Case, 
 
 592 ; Herbert v Markwell (unreport- 8 Coke's Rep. 32. 
 
 ed), Q. B. Div., Dec. 19, 1881 ; Oppen- * 8 Co. 32; 26 Eliz. ; S. C. i Smith's 
 
 heim v. White Lion Hotel Co., L. R. Leading Cases, 8th ed. (1885), 249, 
 
 6 C. P. 515; Spice V. Bacon. L. R. 2 and the note. 
 Exch. Div. 463 ; Cashill v. Wright, 6 
 
§ 1 53-] RULE IN SPECIAL CASES. 413 
 
 servant, or he who comes with him, or he whom he 
 desires to be lodged with him, steals or carries away his 
 goods, the innkeeper shall not be charged, for then the 
 fault is in the guest to have such companion or serv- 
 ant. But if the innkeeper appoints one to lodge with 
 him, he shall answer for him." [If] " The innkeeper re- 
 quires his guest that he will put his goods in such a 
 chamber under lock and key, and then he will warrant 
 them, otherwise not," [and] "the guest lets them lie in an 
 outward court, where they are taken away, the innkeeper 
 shall not be charged, for the fault is in the guest. The 
 words are hospitibus damnum non eveniatP Such was 
 the early strictness of the common law, which, indeed, 
 has been only somewhat modified in modern times by 
 statute. It is still the law, in the quaint language of 
 Lord Coke, that "it is no excuse for the innkeeper to 
 say that he delivered the guest the key of the chamber 
 door in which he is lodged, and that he left the cham- 
 ber door open ; but he ought to keep the goods and 
 chattels of his guest there in safety." ^ 
 
 " I agree," says Lord Ellenborough, "in what is stated 
 in Cayle's Case, that the mere delivery of the key of a 
 room will not dispense with the care and attention due 
 from the landlord, and that he cannot exonerate himself 
 by merely handing a key over to his guest ; but, if the 
 guest takes the key, it is a very proper question for 
 a jury whether he takes it animo custodiendi^ and for the 
 purpose of exempting the landlord from his liability, or 
 whether he takes it merely because the landlord forced it 
 upon him, or for the sake of securing greater privacy, in 
 
 » Cayle's Case, 8 Co. 32, 33. See, Barb. 70 ; Classen v. Leopold, 2 Swee- 
 
 also, to the point that it is not negli- ney, 707 ; Lanier v. Youngblood, 73 
 
 gence in law for the guest to leave Ala. 587; Hadley w. Upshaw, 27 Tex- 
 
 his door unlocked or unbolted, Mur- as, 547 ; Addison on Torts, 612; cf.\ 
 
 chison V. Sergent, 69 Ga. 206; S. C. Smith's Leading Cases, 8th ed. (1885), 
 
 47 Am. Rep. 754 ; Buddenburgh v. 249, 253. 
 Benner, I Hilt. 84; Gill v. Libby, 36 
 
414 RULE IN SPECIAL CASES. [§ I53. 
 
 order to prevent persons from intruding themselves into 
 his room." ^ And Mr. Addison says : " Where a guest, 
 having the key delivered to him, omits to use it, and a 
 thief comes into his room by the door, and steals his 
 goods, that is, or may be, evidence for the jury of contrib- 
 utoiy negligence, which will disentitle him to recover 
 against the innkeeper." ^ 
 
 One may also, without necessarily exposing himself to 
 the imputation of negligence, accept and occupy a room 
 in a hotel, the door of which has no lock or no bolt, or 
 is otherwise incapable of being securely fastened.* In 
 such a case the proper question is not whether the door 
 was actually locked or not, or whether the room was oc- 
 cupied when the door could not be locked, but whether 
 the loss would or would not have happened had the guest 
 exercised the ordinary care of a prudent man under the 
 circumstances. " The fact of the guest having the means 
 of securing himself, and choosing not to use them, is one 
 which, with the other circumstances of the case, should be 
 left to the jury. The weight of it must of course depend 
 upon the state of society at the time and place. What 
 would be prudent in a small hotel in a small town, might 
 be the extreme of imprudence in a large hotel in a city 
 like Bristol, where probably three hundred bed-rooms are 
 occupied by people of all sorts." * It is not correct, how- 
 ever, to say that there is no duty on the part of the guest 
 to lock his door, and consequently, that there is no neg- 
 ligence involved in leaving it unlocked.* A jury of pru- 
 dent men, it is believed, would more frequently regard 
 
 * Burgess v. Clements, 4 Maul. & v. White Lion Hotel Co., L. R. 6 C. 
 Sel. 306. P. 515. 
 
 ^ Addison on Torts, 612. " Spice v. Bacon, L. R. 2 Exch. 
 
 'Lanier v. Youngblood, 73 Ala. Div. 463, overruling Mitchell «/. Woods, 
 
 587 ; Oppenheim v. White Lion Hotel 16 L. T. (N. S.), 676, a case at nisi 
 
 Co., L. R. 6 C. P 515. prius, in which, upon that theory, the 
 
 * Montague Smith, J., in Oppenheim judge had directed a verdict for the 
 
 plaintiff. 
 
§ 1 53-] RUI,E IN SPECIAL CASES. 415 
 
 such a failure, if the guest had anything valuable in his 
 possession, a grossly negligent omission of a plain duty, 
 than a proper and prudent thing to do. So, where a 
 guest makes an ostentatious display of his money in the 
 presence of strangers in the public rooms of the hotel, 
 and then leaves it in his room, with the door ajar or 
 unlocked, a charge that gross negligence on the part of 
 the guest would relieve the landlord, and that it was 
 for the jury to say whether or not such conduct was 
 gross negligence was, upon appeal, declared correct.^ It 
 is never necessary to show gross negligence on the part 
 of a landlord in order to maintain an action against him 
 for loss of goods. Any want of ordinary care contrib- 
 uting to the loss is sufficient.* In the case of Hayward 
 V. Miller ' it appears that the plaintiff, who was a guest in 
 the defendant's hotel, in searching for his room in the 
 night, along a hall dimly lighted, opened a door which he 
 supposed to be the door of his room and stepped in, but 
 which was in reality the door to the elevator, and next to 
 his own door. In consequence of this mistake he fell 
 from the second floor to the cellar, and suffered serious 
 injuries. The court held that the defendant was grossly 
 negligent in leaving the elevator door in such a condition 
 that it could be opened from the outside, and that the 
 plaintiff's attempt to find his room, without the guidance 
 of a servant, inasmuch as he had been a guest of the ho- 
 tel before, and was somewhat familiar with the hallways 
 in that part of the house, was not such contributory 
 negligence as would prevent a recovery of damages from 
 the innkeeper.* 
 
 * Armistead v. Wilde, 17 C. B. 261 ; * See, also, to the same point, and to 
 and compare Cashill v. Wright, 6 El. the point of the liability in general of 
 & Bl. 891. one who invites others to come upon 
 
 * Jalie V. Cardinal, 35 Wis. 118. his premises, Camp v. Wood, 76 N. Y. 
 ' 94 111. 349; s. C. 34 Am. Rep. 92; S. C. 32 Am. Rep. 282; South- 
 
 329. cote V. Stanley, i Hurl. & N. 250; 
 
41 6 RULE IN SPECIAL CASES. [§ 1 54. 
 
 It is not negligence, as the law is declared in the 
 Common Pleas in Philadelphia/ for one who is being 
 fitted with new clothing in a tailor's or clothier's store, to 
 leave his coat and vest, with his watch and money, in a 
 compartment behind a curtain, such as are common in 
 such stores and into which he was shown by the sales 
 man for the purpose of changing his clothes and trying 
 on his new suit, while he walked to another part of the 
 store to stand before a mirror. In the case cited, it ap- 
 pears that a customer who did so was robbed of his 
 watch and money during an absence from the compart- 
 ment of about four minutes. The plaintiff asked the 
 court to extend the law governing innkeepers, and apply 
 it to clothing-house keepers. This the court declined to 
 do, upon essentially the same grounds upon which it is 
 refused to hold palace and sleeping car companies either 
 innkeepers or common carriers,* but held the defendants 
 liable as bailees for hire, and as such bound to exercise a 
 high degree of care and diligence,* and that the plaintiff 
 was guilty of no negligence in leaving his clothing in the 
 defendants care as he did. 
 
 § 154. Miscellaneous} — When a city undertakes to 
 celebrate a holiday, and the municipal authorities have 
 licensed an exhibition of fireworks, it is held that there 
 can be no action against the city on behalf of one who 
 
 Pickard v. Smith, 10 C. B. (N. S.), Co., 16 Abb. N. S. 352; Jeffords w. 
 
 470; Axford V. Pryor, 4 Week. Rep. Crump, 5 Week. Notes Cas. 10. 
 61 1 ; Bolch V. Smith, 7 Hurl. & N. « Citing as authority for such a 
 
 736; McAlpin V. Powell, 70 N. Y. view, Pullman Palace Car Co. v. 
 
 126; S. C. 26 Am. Rep. 555, and the Gardner, 14 Week. Notes Cas. 17. 
 note, and cf. Larue v. Farren Hotel * In this section I have included 
 
 Co., 116 Mass. 67; Bennett v. Louis- such matters as I thought of interest, 
 
 ville, &c., R. R. Co. (by Harlan, J.), and perhaps, in some sort, necessary to 
 
 102 U. S. 577. be included in a complete treatment of 
 
 1 McCoUin V. Reed, 16 Week, the subject, and which I have not 
 Notes Cas. 287, decided June 11, been able to find a more suitable place 
 1885. for in the preceding chapters. 
 
 2 See Welch v. Pullman Palace Car 
 
§ 154'] RULE In special cases. 417 
 
 sustains personal injuries through the negligence of the 
 servants of the city in discharging the fireworks, for the 
 purpose of the celebration,^ neither can an action be main- 
 tained against the municipalty because one's house is set on 
 :fire,and burned by squibs or firecrackers set off upon a holi- 
 day by a crowd of men and boys collected in the street, if 
 the city ordinances have made such fireworks lawful ; ^ nor 
 even is the town chargeable for resulting damages when 
 the fireworks are discharged by citizens in violation of an 
 ordinance, and although the council and officers, and a 
 majority of the citizens, actively participated in the pyro- 
 technics, and the town officers made no attempt to stop 
 the demonstration.* But it is not such contributory negli- 
 gence as will bar a recovery, to stand in the street and 
 look at fireworks, and one who is injured while so doing, 
 by the negligence of another in shooting Roman candles 
 may have his action.* 
 
 In the case of Murphy v. The City of Brooklyn," it 
 is held that the sea-shore is not a highway for public 
 travel, either on foot or in vehicles ; and that, while any 
 one may, unless the public authorities by lawful action in- 
 terfere;, go thereon between high and low water-mark, for 
 any lawful purpose, he must use it as he finds it, and can 
 look to no one for damages sustained from any defect 
 therein. When, therefore, one who walks upon the sea- 
 shore falls into an excavation on private property near 
 high water-mark, and suffers injury thereby, the rule of law 
 that one who causes an excavation to be made on his own 
 land so near a highway that a traveler thereon without 
 
 1 Tindley, v. City of Salem, 137 " Bradley v. Andrews, 51 Vt. 530; 
 
 Mass 171; Morrison*. Lawrence, 98 c/.Moeb\isv. Becker, 46 N. J. Law, 
 
 jj 210 4' ; Fairbanks v. Kerr, 70 Penn. St. 
 
 s Hill V. Board of Aldermen of 86; S. C. 10 Am. Rep. 654; Morgan 
 
 Charlotte, 72 N. C. 55. v- Cox, 22 Mo. 373, and the annota- 
 
 » Ball V. Town of Woodbine, 61 tion in Thomp. on Neg. 238. 
 Iowa, 83; S. C. 47 Am. Rep. 805. = 98 N. Y. 642. 
 
 37 
 
41 8 RULE IN SPECIAL CASES. [§ 1 54, 
 
 fault falls into the hole and is injured may be held liable 
 for the damages, does not apply. 
 
 It seems that, while the contributory negligence of a 
 plaintiff will prevent a recovery in an action for damages 
 for a personal injury occasioned by the negligence of the 
 defendant, the fact that the plaintiff's property is a nuis- 
 ance is not a defense to an action for negligently injuring 
 it. This is the inference from the case of The Mayor of 
 Colchester v. Brooke,^ a much bequoted authority. This 
 was a case of a man who planted an oyster-bed in a pub- 
 lic river, in such a way and at such a place as to constitute 
 it a nuisance, and the defendant passing carelessly over 
 it with boats, was held liable for the damage, notwith- 
 standing the fact that the oyster-bed was an obstruction 
 and a nuisance. It does not appear from the opinion, 
 whether this conclusion was reached because the court re- 
 garded the commission of a nuisance as an offense of a 
 lower grade than an act of contributory negligence, or 
 because it is the policy of the law to protect property 
 more scrupulously than life and limb, or because col- 
 lateral violations of law are not a defense in actions of 
 negligence ; but upon whatever theory the conclusion was 
 reached, the doctrine of the case is often criticised. It 
 is usual to contrast it with the cases of Davies v. Mann,* 
 and Hartfield v. Roper,^ to the end of pointing the moral 
 that the law has more regard for the safety of oysters and 
 asses than it has for little children.* The joke is " some- 
 thing musty," at the best, and appears hardly to have a 
 sound basis, inasmuch as the case decides nothing more 
 than that a collateral violation of law on the part of the 
 plaintiff, is not a defense to an action of negligence; while 
 the cases just referred to, of which Hartfield v. Roper' is 
 
 , V Q. B 339, decided by Lord Den- » 21 Wend. 615 ; S. C. 34 Am. Dec. 
 ham in the Queen's Bench in 1845. 273- 
 
 2 10 Mee. & W. 546. 4 See §§ 10, i8, sufra. 
 
 ' Supra. 
 
§ I54-J RULE IN SPECIAL CASES. 
 
 419 
 
 a type, hold that a parent's negligence may sometimes 
 properly be imputed to an infant child in bar of an action 
 by it, for an injury sustained by the negligence of another, 
 and of Davies v. Mann,^ it may be said that it is aptly 
 designated " the donkey case," and does not decide any- 
 thing.^ 
 
 In King v. American Transportation Co.* it is held 
 that it is not an act of contributory negligence to put up 
 a wooden building upon your own property, although 
 that property is situated near a dock upon a- navigable 
 river, and the house is consequently exposed to the sparks 
 and fire from steamers touching at that dock. When 
 such a house, so built, is set on fire by sparks from a 
 steamer and burned, the owner may have his action against 
 the steamboat company, although he put his house there 
 in the face of the risk. 
 
 Dr. Wharton has set out the law upon injuries to con- 
 testants at games in his treatise on Negligence.* It ap- 
 pears from his exposition that under the Roman law, 
 which is full and explicit upon this question, there is, in 
 general, no liability on either side when one or the other 
 contestant suffers an injury during the progress of a 
 game involving violent exercise, or contests of strength 
 or dexterity, unless there be malice or an intentional, in- 
 fliction of harm.® 
 
 In Marks v. Borum * the Supreme Court of Tennessee 
 decided, in the year of grace 1873, that the act of a negro 
 in coming upon the defendant's premises stealthily, in the 
 darkness of the night, with the plain intent to steal his 
 chickens, did not constitute such contributory wrong- 
 
 * Supra. ° Wharton on Neg., § 406, and the 
 
 2 See §§ 10, 18, supra, and i Sedg- citations; Wharton's Crim. Law (7th 
 
 wick on Damages, 293; 2 Thomp. on ed.), § 1012 ; Penn. v. Lewis, Addi- 
 
 Neg. 1 179. son, 279; Fenton's Case, i Lewin, 
 
 ' I Flippin, I. 179 ; Addison on Torts, 494. 
 
 •» §406. * I Baxt. 87; S. C. 25 Am. Rep. 
 
 764. 
 
420 
 
 RULE IN SPECIAL CASES. 
 
 [§ 154. 
 
 doing as would defeat a recovery of damages for injuries 
 sustained by reason of the defendant's shooting buck shot 
 at him. This settles the law, it may be divined, at least 
 in Tennessee, as to the point that stealing chickens by 
 the darkies is not contributory negli^ence.^ 
 
 1 In the following cases the general 
 principles of the law of contributory- 
 negligence are applied in actions involv- 
 ing the rights of owners of animals, 
 for injuries by or to them, Mareau 
 V. Vanatta, 88 111. 132; Williams v. 
 Moray, 74 Ind. 25 ; Houghey v. Hart, 
 62 Iowa, 96; S. C. 49 Am. Rep. 138; 
 Young V. Harvey, 16 Ind. 314; Con- 
 radt V. Clauve, 93 Id. 476 ; Green, &c., 
 St. Ry. Co. V. Bresmer, 97 Penn. St. 
 
 103 ; Wharton on Nag., § 926 ; Shear. 
 & Redf. on Neg., §§ 199, 471 ; Thomp. 
 on Neg., 222. Inasmuch as there is 
 nothing pertinent to my treatise, which 
 is peculiar or noteworthy in actions of 
 this character, nothing more is neces- 
 sary than to cite' some late or lead- 
 ing cases— which I have done — ^there- 
 by referring the practitioner to the 
 sources of information. 
 
CHAPTER IX. 
 
 THE BURDEN OF PROOF. 
 
 155. General statement. 
 
 156. The burden upon the plaintiff. 
 
 157. The burden upon the defendant. 
 
 § 158. These rules further considered. 
 
 159. The rule in New York. 
 
 160. Conclusions. 
 
 § 155. (xeneral statement. — ^The question whether 
 the burden of proof, where contributory negligence is 
 the issue, is upon plaintiff or defendant, resolves itself, in 
 the last analysis, into a matter of legal presumptions. If 
 the plaintiff may be presumed to have been in the exer- 
 cise of ordinary care, then the burden of showing his 
 contributory negligence will plainly be upon the defend- 
 ant. If ordinary care on the part of the plaintiff is not 
 to be presumed, then it will devolve upon him to dis- 
 prove contributory negligence. If neither ordinary care, 
 nor the want of it, are to be presumed in the absence of 
 evidence, then, if the facts show a duty of care, the 
 plaintiff must furnish some evidence that he exercised it, 
 but otherwise he need not, which is something near to 
 saying that in this condition of the presumptions, there 
 is no rule as to the onus probandi in these cases. 
 
 It is a general rule of law that the burden of proof is 
 upon him who maintains the affirmative of the issue — that 
 he who asserts a fact material to the issue, must prove 
 it. But when this general rule is to be applied in actions 
 where it is sought to recover for an injury from the neg- 
 ligence of another, the courts have found very consider- 
 able difficulty. There is the elementary rule that con- 
 tributory negligence on the part of the plaintiff is suffi- 
 cient to defeat his action, and, when attention is directed 
 to this rule stated in this usual way, it seems clear that 
 
42 2 THE BURDEN OF PROOF. [§ 1 5 5. 
 
 such negligence is a matter of defense, and that it should 
 devolve upon the defendant to prove it. This view 
 assumes the ordinary care of the plaintiff, and that he 
 has fully made out his prima facie case when the negli- 
 gence of the defendant is shown. It throws the burden 
 of proof, as to contributory negligence, upon the defend- 
 ant, if the plaintiff can prove his case without showing 
 it, which is the same thing as to proceed upon the 
 assumption that the plaintiff is not bound to prove 
 affirmatively that he was free from negligence. In the 
 earliest reported case, however, in which contributory 
 negligence appears to have been passed upon as a defense 
 in an action of negligence, there is, it may be, an intimation 
 that an essential element of the plaintiff's case is, that he 
 appear free from contributory neglect. " Two things," 
 says Lord EUenborough in that early case,^ "must con- 
 cur to support this action, an obstruction in the road by 
 the fault of the defendant, and no want of ordinary care 
 to avoid it on the part of the plaintiflF," From which it 
 has been inferred that, in his lordship's view, freedom 
 from contributory negligence as a part of the plaintiff's 
 cause of action, is an affirmative issue, to be alleged and 
 proved equally with the other necessary element in the 
 case — i. e., the defendant's culpable negligence contribut- 
 ing to the injury. He says, indeed, "two things must 
 concur," the fault of the defendant and the freedom from 
 fault of the plaintiff, but this, as the law stands, is not 
 disputed, and in my opinion, inasmuch as that case con- 
 tains no more explicit statement upon the question 
 than this, we are not justified, in citing Butterfield 
 V. Forrester as authority for the proposition that the 
 burden is upon the plaintiflF when contributory negligence 
 is an issue. Those who object to casting this burden 
 
 1 Butterfield v. Forrester, 11 East, 60. 
 
f I55-J THE BURDEN OF PROOF. 
 
 423 
 
 upon the plaintiflF, urge that it is equivalent to a pre- 
 sumption of law that the plaintiff was negligent, and that 
 this the law ought not to presume against the plaintiff 
 any more than against the defendant. But this is noth- 
 ing more than a play upon the word presumption, and, 
 as a bit of legal ratiocination, is scarcely better than to 
 say that the law presumes that the witness will lie, .and, 
 therefore, imposes the d|Jigation of an oath, or, in an 
 action upon a note, presumes it a forgery until the sig- 
 nature is pfbven. There is, indeed, in every action at 
 law, this sort of a presumption against the plaintiff upon 
 «very fact essential to his cause of action. The onus is 
 upon him to establish his facts, and, quoad hoc, the pre- 
 sumption, if you please to say so, is against him. This 
 sort of a presumption is an incident of every possible 
 action, and, while justice is administered as it now is, it 
 cannot be changed. It involves no more of an injustice, 
 nor of unfairness in respect to the legal presumption, to 
 require the plaintiff to show, or to have it sufficiently 
 appear, that his own negligence did not contribute to 
 occasion the injury for which the suit is brought, than to 
 jequire him to prove the signature on the note upon 
 which he sues, or to prove that conditions precedent 
 have been duly performed when he brings an action on a 
 contract which involves that question. When one 
 comes into court, and claims damages for an injury to his 
 person, or his property by reason of the negligence of 
 another, it is not clear why it is unfair to presume that 
 his own carelessness contributed to the resulting injury. 
 In more than ninety per centum of all the actions of 
 negligence that are brought in courts of justice, it appears 
 that the plaintiffs' own negligence did, of a verity, help to 
 cause the injury. Is it then, indeed, so violent a presump- 
 tion that the plaintiff in any individual case was careless ? 
 If, in very deed, he is proved to be careless, nine times out 
 
424 THE BURDEN OF PROOF. [§ 1 55. 
 
 of ten — or, for the matter of that, fifty-one times in a hun- 
 dred — may we not reasonably presume in any given case 
 that he was careless ? Where is the injustice ? Moreover,, 
 is there not another presumption that every man is able 
 to take care of himself and his property, and, by the exer- 
 cise of ordinary care, can keep out of mischief ? If so, 
 where is the wrong, when he brings his action of negli- 
 gence, in assuming that he has failed to exercise his 
 capacity to take care of himself? What is casting upon 
 the plaintiff the burden of showing himself to have exer- 
 cised due care, more than to require him to prove that he 
 performed his legal duty — a thing required to be proved 
 very frequently in simple actions upon a contract? 
 Without reference to the reported cases, and upon gen- 
 eral principles, it may be said that there ought to be no 
 inflexible rule as to the onus probandi in these cases — 
 but that in some sort, each case, or each class of cases,, 
 should be a rule unto itself. It must in fairness depend 
 upon the presumption of care in any given case. If the 
 circumstances of the case are such as to make it a reason- 
 able presumption that the plaintiff was careless, then it 
 should be a part of his case, and an essential part, to allege 
 and prove his freedom from contributory negligence. In 
 such a case the burden of proof is very properly upon 
 him, and such cases very frequently arise,. Perhaps that 
 is the just presumption in a majority of instances. But 
 in another class of cases the reasonable presumption is 
 exactly the other way, and when such a case arises, the 
 presumption being that the plaintiff, at the time of the 
 happening of the injury, was in the exercise of due and 
 ordinary care, the burden of proof should be upon the 
 defendant. He should, as a necessary element of his. 
 defense, allege and prove the concurrent wrong-doing or 
 negligence of the plaintiff. When the peculiar circum- 
 stances of the case raise the presumption of care on the 
 
§ 156.] THE BURDEN OF PROOF. 425 
 
 part of the plaintiff, it is an injustice, or at least an ine- 
 quality, to impose upon him the burden of proving his 
 own freedom from fault, but when the peculiar circum- 
 stances of the case raise the contrary presumption, it is a 
 plain injustice not to impose upon the plaintiff the bur- 
 den of showing that his own conduct was what it should 
 have been. When the circumstances of any case are such 
 as not to raise any presumption either way, which, in 
 practice, it is believed, is a case not likely to arise fre- 
 quently, then let the court apply its arbitrary rule, and 
 place the burden upon either plaintiff or defendant, as 
 the rule may be. 
 
 The burden of proof in actions of negligence, when. 
 contributory negligence is an issue, is no nearer an exact 
 science than that, and, in the nature of the case, can never 
 be reduced to any exacter certitude. Until all the acci- 
 dents from which men suffer can be made to fall into 
 assigned categories, and until men, by common consent, 
 will expose themselves and their property to danger, and 
 expose others and the property of others to danger, only 
 under defined conditions, and expressed and agreed lim- 
 itations, that is to say, until men get hurt and hurt other 
 people only by rule, there can be no rule as to the bur- 
 den of proof in these cases, at once inflexible and 
 just. 
 
 § 156. The burden upon the plaintiff. — Upon turning 
 to the decisions we shall find that the decided weight of 
 authority is in favor of the rule that the burden is upon 
 the plaintiff in these actions to show his own freedom 
 from contributory negligence ; that as part of his case, to 
 be affirmatively established, he must make it appear that 
 he himself was not in fault ; that until he has shown the 
 absence of contributory negligence, and the presence of 
 ordinary care in himself, his case is not duly presented. 
 
426 
 
 THE BURDEN OF PROOF, 
 
 [§ 156. 
 
 This is the rule in Massachusetts,^ Maine,* Mississippi,* 
 Louisiana,* North Carolina,® Michigan,* Oregon,^ Illi- 
 nois,^ Connecticut,* lowa,^" and Indiana." 
 
 1 Lane v. Crombie, 12 Pick. 177; 
 Adams v. Carlisle, 21 Id. 146; Bige- 
 low V. Rutland, 4 Cush. 247; Bos- 
 worth V. Inhabitants of Swansey, 10 
 Mete. 363 ; S. C. 43 Am. Dec. 441 ; 
 Parker v. Adams, 12 Mete. 415; s. C. 
 46 Am. Dec. 694; Lucas v. New 
 Bedford R. R. Co., 6 Gray, 64; Rob- 
 inson V. Fitchburg R. R. Co., 7 Id. 
 92 ; Callahan . Bean, 9 Allen, 401 ; 
 Hickey v. Boston, &c., R. R. Co., 14 
 Id. 429 ; Gaynor v. Old Colony R. R. 
 Co., 100 Mass. 208; Murphy v. 
 Deane, loi Id. 455; Allyn v. Boston, 
 &c., R. R. Co., 105 Id. 77; Lane v. 
 Atlantic Works, 107 Id. 104; Crafts 
 V. Boston, 109 Id. 519; Prentiss v. 
 Boston, 112 Id. 43; Hinckley v. Cape 
 Cod R. R. Co., 120 Id. 257; Corco- 
 ran V. Boston, &c., R. R. Co., 133 
 Id. 507 ; Riley v. Conn. River R. R. 
 Co., 135 Id. 292; Wheelwright v. 
 Boston, &c., R. R. Co., 135 Id. 225; 
 Stock V. Wood, 136 Id. 353. But the 
 burden of proof is upon the defendant 
 to show gross or wilful negligence 
 upon the part of the plaintiff. Copley 
 V. New Haven, &c., R. R. Co., 136 
 Mass. 6. This case is miscited by 
 Mr. Freeman in his note to the case 
 of Farish v. Reigle, 11 Grattan, 697, 
 in 62 Am. Dec. 666, 687, in support 
 of the general proposition that in Mas- 
 sachusetts "contributory negligence 
 is a matter of defense, and the burden 
 of establishing it is upon the defend- 
 ant," whereas, in fact, the rule in that 
 State is exactly the contrary. 
 
 2 Foster v. Dixfield, 18 Me. 380; 
 French v. Brunswick, 21 Id. 29; s. C. 
 38 Am. Dec. 250; Kennard v. Bur- 
 ton, 25 Me. 39; s. c. 43 Am. Dec. 
 249; Merrill v. Hampden, 26 Me. 
 234; Perkins v. Eastern, &c., R. R. 
 Co., 29 Id. 307; Dickey -v. Maine 
 Telegraph Co., 46 Id. 483 ; Buzzell v. 
 Laconia Manfg. Co., 48 Id. 113; 
 Gleason v. Bremen, 50 Id. 222; Ben- 
 son V. Titcomb, 72 Id. 31; Chase z/. 
 Maine, &c., R. R. Co., Sup. Jud. Ct., 
 Me., Jan. 19, 1885, I Eastern Rep. 
 96; Leasan v. Id., Sup. Jud. Ct., Me., 
 Jan. 26, 1885, I Eastern Rep. 100. 
 
 * Central, &c., R. R. Co. v. Mason, 
 
 51 Miss. 234; City of Vicksburg v. 
 Hennessy, 54 Id. 391. 
 
 * Moore v. City of Shreveport, 3 
 La. Ann. 645. 
 
 * Manly v. Wilmington, &c., R. R. 
 Co., 74 N. C. 655; Doggett V. Rich- 
 mond, &c., R. R. Co., 78 Id. 305; 
 Owens V. Id., 88 Id. 502. 
 
 « Detroit, &c., R. R. Co. v. Van 
 Steinburg,. 17 Mich. 99 ; Lake Shore, 
 &c., R. R. Co. V. Miller, 25 Id. 274: 
 LeBaron v. Joslin, 41 Id. 313; Teipel 
 V. Hilsendegen, 44 Id. 461, (by Cooley, 
 J.); Mitchell v. Chicago, &c.,R. R. Co., 
 51 Id. 236; s. C. 47 Am. Rep. 566. 
 
 ' Kahn v. Love, 3 Oregon, 206; 
 Walsh V. Oregon, &c., R. R' Co., 10 
 Id. 250; cf. Conroy v. Oregon Con- 
 struction Co., U. S. Circ. Ct., Dist., 
 Oregon, March 6, 1885, Rep. 486. 
 
 ' Aurora, &c., R. R. Co. v. Grimes, 
 13 111. 585; Dyer v. Talcott, 16 Id. 
 300 ; Galena, &:c., R. R. Co. v. Fay, 
 16 Id. 558; S. C. 63 Am. Dec. 323; 
 Chicago V. Major, i8 111. 349; Ga- 
 lena, &c., R. R. Co. V. Jacobs, 20 Id. 
 478 ; Chicago, &c., R R. Co. v. Haz- 
 zard, 26 Id. 373 ; Id. v. Gregory, 58 
 Id. 272 ; Kepperly v. Ramsden, 83 Id. 
 354 ; Missouri Furnace Co. v. Abend, 
 107 111. 44 ; s. C. 47 Am. Rep. 425. 
 
 » Park V. O'Brien, 23 Conn. 339; 
 Button z/. Frink, 51 Conn. 342; S. C. 
 50 Am. Rep. 24. 
 
 ' " Rusch V. Davenport, 6 Iowa, 44.3 ; 
 Reynolds v. Hindman, 32 Id. 148 ; Plas- 
 ter V. 111., &c., R. R. Co., 35 Id. 449; 
 Carlin v. Chicago, &c., R. R. Co., 37 
 Id. 316; Muldowney w. 111., &c., R. R. 
 Co., 39 Id. 615 ; S. C. 36 Id. 462 ; S. C. 
 32 Id. 1 76 ; Patterson v. Burlington, &c., 
 R. R. Co., 38 Id. 279; Way w. Ill.,&c., 
 R. R. Co., 40 Id. 341 ; Nelson v. 
 Chicago, &c., R. R. Co., 38 Id. 564; 
 Murphy v. Id., 38 Id. 539 ; S. C. 45 
 Id. 661 ; Greenleaf v. 111., &c., R. R. 
 Co., 29 Id. 14: s. C. 4 Am. Rep. 
 181 ; Bonce v. Dubuque, &c., R. R. 
 Co., S3 Iowa, 278 ; Slosson v. Bur- 
 lington, &c., R. R. Co., 55 Id. 294. 
 See, also, Brentnerz/. Chicago, &c.,R. 
 R. Co., Sup. Ct., Iowa, N. W. Rep., 
 May 16, 1885, xix Am. Law Rev. 668. 
 1 1 Mount Vernon v. Dusouchett, 2 
 
156.] 
 
 THE BURDEN OF PROOF. 
 
 427 
 
 Although this rule has not in general found favor 
 with the text-writers and the theorists and critics, it is 
 submitted that, if there is to be any inflexible rule, this is 
 the one which will most often subserve the ends of sub- 
 stantial justice. If men who appear as plaintiffs in actions 
 of negligence, were, as a matter of fact, careful more 
 often than they are careless ; if, in practice, it were found 
 that the defense of contributory negligence only now and 
 then availed the defendant anything, then the opposite 
 rule w^ould be the better rule ; but in point of fact these 
 men generally blunder, and are generally in fault. Con- 
 tributory negligence is a good defense in a great majority 
 of the cases. It follows then that, if we are to have an 
 inflexible rule, it must, in order to do even justice as 
 nearly as possible, take account of this element in these 
 cases. It must be grounded and predicated upon the 
 presumption of negligence rather than the presumption 
 
 Ind.s86; S.C. 54 Am.Dec.467 ; Wayne 
 Co. Turnpike Co. v. Berry, 5 Ind. 286 ; 
 Wabash Canal Co. v. Mayer, 10 Id. 
 400; Indianapolis, &c., R. R. Co. v. 
 Keely, 23 Id. 133 ; Evansville, &c., 
 R. R. Co. V. Dexter, 24 Id. 41 1 ; 
 Id. V. Hiatt, 17 Id. 102 ; Jefferson- 
 ville, &c., R. R. Co. v. Hendricks, 26 
 Id. 228; Toledo, &c.. R. R. Co. v. 
 Bavin, 26 Id. 443; Pittsburgh, &c., 
 R. R. Co. V. Vining, 27 Id. 513 ; 
 Michigan, &c., R. R. Co. v. Lantz, 
 29 Ind. 528 ; Riest v. Goshen, 42 Id. 
 339; Hathaway v. Toledo, &c., R. 
 R. Co., 46 Id. 25 ; Jackson v. Indian- 
 apolis, &c., R. R. Co., 47 Id. 454 ; 
 City of Anderson v. Hervey, 67 Id. 
 420; Gormley v. Ohio, &c., R. R. 
 Co., 72 Id. 31 ; Jeffersonville, &c., R. 
 R. Co. V. Lyon, 72 Id. 107 ; Williams 
 V. Moray, 74 Id. 25 ; Toledo, &c., R. 
 R. Co. V. Brannagan, 75 Id. 49°! 
 Huntington v. Breen, 77 Id. 29; Pitts- 
 burgh, &c., R. R. Co. V. Noel, 77 Id. 
 1 10 ; Pennsylvania Co. v. Gallentine, 
 yj Id. 322 ; Louisville, &c., R. R. Co. 
 V. Head, 80 Id. 117 ; Bloomington v. 
 
 Rogers, 83 Id. 261 ; Wilson v. Tra- 
 falgar Co., 83 Id. 326; Louisville, 
 &c., R. R. Co. V. Orr, 84 Id. 50; 
 Rushville v. Poe, 85 Id. 83; Louis- 
 ville, &c., R. R. Co. V. Krinning, 87 
 Id. 351 ; Id. V. Hagen, 87 Id. 602 ; 
 Gheens v. Golden, 90 Id. 427 ; Louis- 
 ville, &c., R. R. Co. V. Lockridge, 93 
 Id. 191. In this State the declara- 
 tion, or complaint, must aver or show 
 the absence of negligence upon the 
 part of the plaintiff. Board of Trust- 
 ees, &c., V, Mayer, 10 Ind. 401 ; 
 Evansville, &c., R. R. Co. v. Hiatt, 17 
 Id. 102 ; Indianapolis, &c., R. R. Co. 
 V. Keely's Admr., 23 Id. 134; Jef- 
 fersonville, &c., R. R. Co. V. Hend- 
 ricks' Admr., 26 Id. 230 ; Williams v. 
 Moray, 74 Id. 27 ; Pennsylvania Co. 
 z/. Gallentine, 77 Id. 329; Louisville, 
 &c., R. R. Co. V. Boland, 53 Id. 402 ; 
 Rogers v. Overton, 87 Id. 411. Cf. 
 the note to the case of President and 
 Trustees of the Town of Mount Ver- 
 non V. Dusouchett, (the case in 
 which this rule had its origin), 2 Ind. 
 586, in 54 Am. Dec. 467, 470. 
 
428 THE BURDEN OF PROOF. [§ 1 56. 
 
 of care, for verily that is the presumption of fact in these 
 cases. When the average plaintiff comes into court with 
 his action of negligence, the mathematical chance is more 
 than six to one, at the very lowest, that, when the evidence 
 is all in, it will give the defendant a verdict, on the 
 ground of the plaintiff's own participating and concur- 
 ring default. It must appear, as the law stands, before a 
 verdict for the plaintiff can be sustained, that the plaintiff 
 was not guilty of contributory negligence. It is an 
 essential element in the case upon which the issue depends, 
 and, inasmuch as the chances are very largely in favor 
 of the defendant when the question of contributory 
 negligence is raised, it is difficult to see upon what ground 
 it is unjust or unreasonable to put the burden of proof 
 upon the plaintiff The fact must be established in order 
 to the plaintiff's success, and the chances are that it cannot 
 be established. Where is the unfairness in requiring him 
 to establish it as part of his case ? or upon what ground 
 shall it be held proper to impose upon the defendant the 
 duty of establishing the want of care on the part of the 
 plaintiff? In my judgment, no arbitrary and inflexible 
 rule upon this matter is just ; but, if there is to be such a 
 rule, I am unable to understand how any other rule than 
 that which puts the burden of proof upon the plaintiff 
 can be in any wise defended. 
 
 Mr. Freeman, the learned editor of the American 
 Decisions, says, by way of criticism of this view •} " It is 
 certainly a presumption of fact or common sense that 
 persons are ordinarily prudent. In fact the very phrases 
 which obtain in legal terminology, of ' ordinary prudence 
 or care,' or 'the care ordinarily exhibited by persons 
 reasonably prudent under the same circumstances,' con- 
 vey with them, and are based upon the supposition that 
 
 ' 62 Am. Dec. 687, note. 
 
§ IS6.] THE BURDEN OF PROOF. 
 
 429 
 
 people as a general rule are ordinarily careful. Whereas, 
 the authorities that render it necessary for the plaintiff to 
 free himself from negligence in the first place, seem neces- 
 sarily to assume that people are usually negligent. The 
 anomaly of requiring the party holding the affirmative to 
 negatively prove part of his case is apparent, while the 
 necessarily attendant presumption of the negligence of 
 mankind in general, requires for its support the mind of 
 a cynic or a pessimist." It is upon this key that all the 
 objections to the rule which puts the burden of proof 
 upon the plaintiff in these cases, proceed. But such an 
 objection begs the question and is founded upon a wholly 
 unwarranted assumption. The question of the careful- 
 ness and prudence of mankind in general is not involved. 
 The question of contributory negligence affects only the 
 few who get hurt in their persons or property by reason 
 of some other person's neglect. Uncounted millions of 
 the human family are born, and live out their allotted 
 span, and die, and bring no single action of negligence in 
 all the days of their life.. With them and their care or 
 carelessness, we have nothing to do, except that from their 
 conduct on the average, we get a meaning for those 
 phrases that Mr. Freeman quotes. " Ordinary care," it 
 seems hardly necessary to say, means the care of the aver- 
 age prudent man who does not get hurt in his person or 
 property. By his supposed conduct under given circum- 
 stances we test the propriety and fitness of the conduct 
 of a man who has suffered an injury and brings an action 
 for redress. Now the precise question is, not whether 
 the race is upon the whole a careful race, but whether the 
 few out of the multitude, who suffer injuries are upon the 
 whole careful and prudent. Dividing the human family 
 into the injured and the uninjured, and subdividing the 
 first class into those who bring, and those who do not 
 bring actions in courts of justice for the redress of their 
 
430 THE BURDEN OF PROOF. [§ 1 5 7. 
 
 injuries, we inquire whether that class of the injured who 
 bring civil suits for damages are, upon the average, careful 
 and prudent men and women. Perhaps it may not seem 
 to involve any revolting amount of cynicism to take the 
 ground that this class of persons are not, upon the whole, 
 or in a majority of cases, up to the average in point of 
 carefulness and prudence ; or were not, at the time of the 
 happening of the injury of which they complain, in full 
 exercise of that full quantum of care and prudence that 
 passes among men as " ordinary care; " that it is a fair pre- 
 sumption in any given case, that the injured person was 
 at fault, and that the rule that imposes upon such plaint- 
 iffs the burden of showing themselves free from contribu- 
 tory negligence is, in a vast majority of cases, shown to 
 be a reasonable rule of law, by the fact that, in a vast 
 majority of cases, it turns out that the plaintiff was in 
 fault, and, in fact, a joint author of the injury of which he 
 complains. It may even seem after a full consideration, 
 that the rule which would make contributory negligence 
 a matter of defense, and something in every instance for 
 the defendant to allege and prove, is grounded more in a 
 sentiment than in right reason. 
 
 § 157. The burden upon the defendant. — In many jur- 
 isdictions it is the rule that contributory negligence is 
 matter of defense, and that the burden of establishing it 
 is upon the defendant. Where this rule obtains, the 
 plaintiff has made his case when he has shown injury to 
 himself, and negligence on the part of the defendant 
 which was a proximate cause of it. It then devolves 
 upon the defendant to allege and prove contributory 
 negligence as matter of defense, the presumption being 
 in favor of the plaintiff, that he was, at the time of the 
 accident, in the exercise of due care, and that the injury 
 was caused AyhoUy by the defendant's negligent miscon- 
 
§ 157.] 
 
 THE- BURDEN OF PROOF. 
 
 431 
 
 duct. This is the doctrine of the Supreme Court of the 
 United States,^ and it is the rule in Alabama,^ California,* 
 Georgia,* Kentucky,^ Kansas,^ Maryland,^ Minnesota,* 
 Missouri,' New Hampshire,^" New Jersey," Nebraska/* 
 Ohio,^* Pennsylvania," Rhode Island/^ South Caroli- 
 
 1 Railroad Co. v. Gladmon, 15 
 Wall, 401; Indianapolis, &c., R. R. 
 Co. V. Hoist, 93 U. S. 291 ; Hough v. 
 Railway Co., 100 Id. 213; Crew "v. 
 St. Louis, &c., R. R. Co., 20 Fed. 
 Rep. 87 ; Conroy v. Oregon Construc- 
 tion Co., U. S. Circ. Ct., for the Dist. 
 of Oregon, March 6, 1885, Rep. 486; 
 Secord v. St. Paul. &c., R. R. Co., 
 5 McCrary 515; Morgan v. Bridge 
 Co., 5 Dillon, 96; Dillon v. Union 
 Pacific R. R. Co., 3 Id. 325 ; Wabash, 
 &c., R. R. Co. V. Century Trust Co. 
 of New York, U. S. Circ. Ct., for the 
 Dist. of Indiana, Woods, J., May 9, 
 1885, 32 Albany Law Jour. 96. Con- 
 tra, Beardsley v. Swann, 4 McLean, 
 333 ; Hull V. Richmond, 2 Woodb. & 
 M. 337, 34S ; Dunraead v. Am. &c., 
 Co., 4 McCrary, 244. 
 
 ^ Smoot V. The Mayor, 24 Ala. 112; 
 Mobile, &c., R. R. Co. v. Crenshaw, 
 65 Id. 566. 
 
 " Finn v. Vallejo St. Wharf Co., 7 
 Cal. 255; May w. Hanson, 5 Id. 360; 
 S. C. 63 Am. Dec. 135 ; Gay v. Winter, 
 34 Ci. 153; Robinson v. Western, 
 &c., R. R. Co., 48 Id. 426; McQuil- 
 ken w. Central, &c.,R.R. Co., 50 Id. 7; 
 Macdougall v. Central, &c., R. R. Co., 
 63 Id. 431 ; Nehrbas v. Id., 62 Id. 320. 
 * Thompson v. Central, &c.. R. R. 
 Co., 54 Ga. 509. Contra, Branan 
 V. May, 17 Ga. 136; Campbell ?/. At- 
 lanta, &c., R. R. Co., S3 Id. 488. 
 
 ' Paducah, &c., R. R. Co., v. Hoehl, 
 12 Bush. 41 ; Louisville Canal Co. v. 
 Murphy, 9 Id. 522; Kentucky, &c., 
 R. R. Co. V. Thomas, 79 Ky. 160; 
 Louisville, &c., R. R. Co. v. Goetz, 79 
 Id. 442 ; S. C. 42 Am. Rep. 227. 
 
 "Kansas, &c., R. R. Co. ». Pointer, 
 9 Kan. 620; s. C. 14 Id. 38; Kansas, 
 &c., R. R. Co. V. Phillibert,25 Id. 583. 
 ' Irwin V. Sprigg, 6 Gill. 206 ; Bal- 
 timore V. Morriott, 9 Md. 160; Nor- 
 thern, &c., R. R. Co. V. State, 31 Id. 
 357; Freeh v. Phila., &c., R. R. Co., 
 
 39 Id. 574; County Commissioners 
 V. Burgess, 61 Id. 29. See, also, 
 Twigg V. Ryland, Ct. of App. of Md., 
 Am. Law Reg., March, 1885 ; s. C, 
 xix Am. Law Rev. 319. 
 
 *Hocumz'.Weitherick,22 Minn,i52. 
 'Thompson v. North Mo. R. R, 
 Co., 51 Mo. 190; Hicks v. Pacific, 
 &c., R. R. Co., 65 Id. 34; S. C. 64 Id. 
 430; Buesching v. St. Louis Gas 
 Light Co., 73 Id. 219; s. C. 39 Am. 
 Rep. 503, and the note. 
 
 i» White V. Concord, &c.,R.R. Co., 
 30 N. H. 207 ; Smith v. Eastern, &c., 
 R. R. Co., 35 Id. 366. 
 
 1 1 Moore v. Central, &c., R.R. Co., 
 24 N. J. Law, 268 ; Durant v. Palmer, 
 29 Id. 544 ; N. J. Express Co. v. Nich- 
 ols, 32 Id. 166 ; S. C. 33 Id. 434. 
 
 ' * City of Lincoln v. Walker, Sup. 
 Ct., Neb., 20 N. W. Rep. 113, Albany 
 Law Jour., Nov. 22, 1884, xix Am. 
 Law Rev. 162. 
 
 1 8 Cleveland, &c., R. R. Co. v. 
 Crawford, 24 Ohio St. 636 ; Balto., 
 &c., R. R. Co. V. Whitacre, 35 Id. 
 627. See, also, Little Miami, &c., R. 
 R. Co. V. Stevens, 20 Id. 41 5. 
 
 1* Beatty v. Gilmore, 16 Penn. St. 
 463; Erie V. Schwingle, 22 Id. 384; 
 Bush V. Johnson, 23 Id. 209 ; Penn. 
 R. R. Co. V. McTighe, 46 Id. 316; 
 Allen V. Willard, 57 Id. 374; Waters 
 V. Wing, 59 Id. 211 ; Penn. Canal Co. 
 V. Bentley, 66 Id. 30; Penn. R. R. Co. 
 V. Weber, 72 Id. 27; s. C. ^(> Id. 157; 
 Hays z/.Gallagher, 72 Id. 136, (distin- 
 guishing 59 Id. 21 1); Weiss v. Penn. R. 
 R. Co., 79 Id. 387; Malloryz/. Griffey, 
 85 Id. 275. Contra, Federal St. R. R. 
 Co. V. Gibson, 96 Id. 83; Baker v. 
 Fehr, 97 Id. 70; Phila., &c., R. R. Co. 
 V. Boyer, 97 Id. 91. In the later 
 cases the Pennsylvania Court inclines, 
 it seems, to the other rule, putting the 
 burden of proof upon the plaintiff. 
 
 15 Cassidy v. Angell, 12 R. I. 447; 
 S. C. 34 Am. Rep. 690. 
 
432 
 
 THE BURDEN OF PROOF. 
 
 [§ 157. 
 
 na,^ Texas,^ Wisconsin* West Virginia* Vermont,' and 
 Colorado,* as well as in England.'^ 
 
 But, in all those jurisdictions where contributory 
 negligence is held a matter of defense, whenever the 
 plaintiff's own case raises a presumption of contributory- 
 negligence, the burden of proof is immediately upon him. 
 In such a case it devolves upon the plaintiff, as of course, 
 to clear himself of the suspicion of negligence that he 
 has himself created. He must make out his case in full, 
 and, where the circumstances attending the injury were 
 such as to raise a presumption against him in respect of 
 the exercise of due care, the law requires him to establish 
 affirmatively his freedom from contributory fault.* And 
 when the plaintiff's case, on the face of it, shows contrib- 
 utory negligence, there should be a nonsuit,' but if there 
 
 1 Danner v. South Carolina R. R. 
 Co., 4 Rich. (Law) 329; S. C. 55 Am. 
 Dec. 678; Carter v. Columbia, &c., 
 R. R. Co., 19 S. C. 20; s. C. 45 Am. 
 Rep. 754; Roof z/. Railroad Co., 4 S. 
 C. 61. 
 
 s Texas, &c., R. R. Co. v. Murphy, 
 46 Texas, 356; Houston, &c., R. R. 
 Co. V. Cowser, 57 Id. 293 ; Dallas, &c., 
 R. R. Co. V. Spicker, 61 Id. 427; s. C. 
 48 Am. Rep. 297. Contra, Walker 
 V. Herron, 22 Id. 55. 
 
 ' Milwaukee, &c., R. S^. Co. v. 
 Hunter, 11 Wis. 160; Achtenhagen 
 v. Watertown, 18 Id. 331 ; Potter v. 
 Chicago, &c., R. R. Co., 21 Id. 372; 
 S. C, 22 Id. 615; Hoytw. Hudson, 41 
 Id. 105; Prideaux v. Mineral Point, 
 43 Id. 513; S. C. 28 Am. Rep. 558, 
 and the note; Hoth v. Peters, 55 Id. 
 405. The older cases are overruled. 
 Chamberlain v. Milwaukee, &c., R. 
 R. Co., 7 Id. 431 ; Dressier v. Davis, 
 7 Id. 527. 
 
 * Sheff V. City of Huntington, 16 
 West Va. 317. 
 
 ^ Parber v. Essex, 27 Vt. 62 ; Hill 
 V. New Haven, 37 Id. 501. 
 
 « Sanderson v. Frazier, Sup. Ct. 
 Colo., W. C. Rep., Feb. 19, 1885 ; 
 S. c. xix Am. Law Rev. 312. 
 
 ' Holden v. Liverpool Gas Co., 3 C. 
 B. I ; Davey v. London, &c., Ry. 
 Co., II L. R. (Q. B. Div.) 213; Bridge 
 V. Grand Junction Ry. Co., 3 Mee. & 
 W. 244; Martin v. Great Northern, 
 &c., Ry. Co., 16 C. B. 179. 
 
 » Baltimore, &c., R. R. Co. v. 
 Whitacre, 35 Ohio St. 627: Hays v. 
 Gallagher, 72 Penn. St. 140; New 
 Jersey Express Co. v. Nichols, 33 N. 
 J. Law, 434; Dallas, &c., R. R. Co. 
 V. Spicker, 61 Texas, 427; s. c. 48 
 Am. Rep. 297; Winship v. Enfield, 
 42 N. H. 197; Louisville, &c., R. R. 
 Co. V. Goetz, 79 Ky. 442; s. C. 42 
 Am. Rep 227; Miller v. St. Louis, 
 &c., R. R. Co., 5 Mo. App. 471; 
 Missouri Furnace Co. v. Abend, 107 
 111. 44; S. C. 47 Am. Rep. 425; Pri- 
 deaux V. City of Mineral Point, 43 
 Wis. 513; S. C. 28 Am. Rep. 558, and 
 the note. 
 
 ' Starry v. Dubuque, &c., Ry. Co., 
 51 Iowa, 419; Prideaux v. City of 
 Mineral Point, 43 Wis. 513; S. C. 28 
 Am. Rep. 558; Baltimore, &c., R. R. 
 Co. V. Whitacre, 35 Ohio St. 627; 
 Cassidy v. Angell, 12 R. I. 447; S. C. 
 34 Am. Rep. 690; Lee v. Woolsey, 
 Sup. Ct., Penn., March 16, 1885, 16 
 Week. Notes, Cas. 337; Schum v. 
 
§ 158.] THE BURDEN OF PROOF, 433 
 
 be any real question as to the plaintiff's negligence, he 
 should not be nonsuited, but the question is for the jury.^ 
 In the early and leading case of Zemp v. Wilmington & 
 Manchester R. R. Co.,^ it is said that declarations of the 
 plaintiff, in the nature of admissions, that the injury re- 
 sulted from his own carelessness, and that he alone was 
 in fault, the admissions having been made almost imme- 
 diately after the accident in which the injury was received 
 and before the plaintiff was fully informed of the causes 
 of the accideftt, are not conclusive evidence of contribu- 
 tory negligence, but are to be left to the jury to receive 
 their appropriate weight in connection with other evi- 
 dence. 
 
 § 158. These rules further considered. — In Park v. 
 O'Brien,* the Supreme Court of Errors of Connecticut, 
 sets forth the rule that in these actions the burden 
 is upon the plaintiflF to establish that his own negli- 
 gence did not concur in producing the mischief of 
 which he complains, in the following luminous language. 
 "We accord entirely with the decisions cited by the 
 plaintiff in error, the defendant below, to show that, in 
 this suit, the burden of showing that the injury was 
 not attributable to the want of reasonable care on his 
 part, rested on the plaintiff. The reason of this rule is 
 that the plaintiff must prove all the facts which are nec- 
 essary to entitle him to recover, and this is one of those 
 facts. It was necessary for the plaintiff to prove ; first, 
 negligence on the part of the defendant in respect to the 
 collision alleged, and, secondly, that the injury to the 
 plaintiff occurred in consequence of that negligence. But 
 in order to prove this latter part, the plaintiff must show 
 
 Penn. R. R. Co., Sup. Ct. Penn., » See the cases generally last cited. 
 
 Jany., 1885, xix Am. Law Rev. 331 ; ^9 Rich. (Law), 84; s. C. 64 Am. 
 
 Longenecker v. Penn. R. R. Co., 105 Dec. 763. 
 
 Penn. St. 328. ' 23 Conn. 339. 
 
434 THE BURDEN OF PROOF. [§ 1 58. 
 
 that such injury was not caused in whole, or in part, by 
 his own negligence, for although the defendant was guilty 
 of negligence, if the plaintiff's negligence contributed 
 essentially to the injury, it is obvious that it did not occur 
 by reason of the defendant's negligence. Therefore the 
 plaintiff would not prove enough to entitle him to re- 
 cover, by merely showing negligence on the part of the 
 defendant, but he must go further, and also prove the 
 injury to have been caused by such negligence, by show- 
 ing a want of concurring negligence on his own part 
 contributing materially to the injury. Hence, to say 
 that the plaintiff must show the latter, is. only saying that 
 he must show that the injury was owing to the negligence 
 of the defendant. And as the defendant had the right 
 to have the jury informed as to what facts the plaintifiF 
 must prove, in order to recover, he had a right to require 
 the court to instruct them that it was incumbent on the 
 plaintiff to prove a want of such concurring negligence 
 on his part." 
 
 Perhaps there is no more explicit and satisfactory 
 statement of the rule in the reports than this. It is not, 
 however, a favorite rule with the text-writers and com- 
 mentators, who almost universally incline to indorse the 
 opposite doctrine, which makes contributory negligence 
 a matter of defense, and puts the burden of proving it 
 upon the defendant.^ Mr. Redfield to this point says:" 
 " Although the majority of the American courts lay down 
 the rule . . . that the burden of proof is upon the 
 plaintiff to show that he was guilty of no negligence on 
 his own part, we think the point is not well defined in 
 these terms. All that is meant, we apprehend, is, that 
 where there is any evidence tending to prove, either 
 
 'Shear. & Redf. on Neg., § 43; Railways (5th ed.), 253, notes; 28 Am. 
 
 Thomp. on Neg., 1176; Thomp on Rep. 563, Mr Browne's note; 62 Am. 
 
 Carriers of Passengers, 257, et seq.\ Dec. 686, Mr. Freeman's note. 
 
 Wharton on Neg., § 423 ; 2 Redf. on ^ 2 Redf. on Railways, 253, supra. 
 
§ 158.] THE BURDEN OF PROOF. 435 
 
 -directly, or from the manner of the accident, that there 
 might have been fault on the part of the plaintiff, he 
 must assume the burden, upon the whole issue, of satisfy- 
 ing the jury that the injury occurred through the fault of the 
 defendant, and that his own want of care, at the time, did 
 not in any sense contribute directly to it. The result of 
 the rule thus stated would be that, where there was no 
 evidence of any want of care on the part of the plaintiff, 
 the law will presume none existed, as in regard to good 
 ■character in a witness, or sanity in one where there 
 is no proof. ... It has sometimes been claimed, 
 that the plaintiff must give affirmative evidence of his 
 own exercise of due care and caution at the time the 
 injury occurred. But this in principle is much like one 
 giving evidence of the good character of his witnesses, 
 before any impeachment, and we think should never be 
 required. " 
 
 In Kansas Pacific R. R. Co. v. Pointer,^ the court, 
 arguing to the same effect, says: "It seems to us also 
 correct to hold that the onus probandi, as to the negli- 
 gence of the plaintiff is on the defendant, that, if the 
 record shows negligence on the part of the defendant, 
 and is silent as to the conduct of the plaintiff, it makes 
 out a case for recovery. We are aware of contrary decis- 
 ions, and that in some States it is held that the burden is 
 on the plaintiff to show affirmatively that he exercised 
 due care, and was without fault. But if it is shown that 
 a party has done wrong and caused injury thereby, is not 
 2. prima facie case for compensation made? Logically 
 the wrong-doer should always compensate, and the wrong 
 and the injury always entitle to relief. When the wrong 
 of both parties contributes to the injury, the law declines 
 to apportion the damages, and so leaves the injured party 
 without any compensation. This is not strictly justice, 
 
 ' 14 Kan. 37. 
 
436 THE BURDEN OF PROOF. [§ 158- 
 
 the wrong-doer causing injury ought not to be released 
 from making any compensation, simply because the in- 
 jured party is also a wrong-doer, and helped produce the 
 injury. But many considerations, especially the difficulty 
 of correctly apportioning the damages, and determining 
 to what extent the wrong of the respective parties was 
 instrumental in causing the injury, uphold the rule so- 
 universally recognized, that where the wrong, the negli- 
 gence of both parties, contributes to the injury, the law 
 will not afford any relief. But if the wrong-doer ought 
 always to compensate for the injury he has wrought, and 
 is relieved from the obligation to compensate only by 
 the fact that the wrong of the injured party helped to 
 cause the injury, it is incumbent on him to show such 
 wrong. It is matter of defense to avoid the consequences 
 of his own wrong." 
 
 These arguments in favor of the rule which places the 
 burden of proof as to the contributory negligence of the 
 plaintiff upon the defendant, proceed, it is suggested with 
 deference, always upon the reasonableness, or justice, of 
 the presumption of carefulness upon the part of the 
 plaintiff. This presumption is after the analogy of the 
 presumption of innocence in the criminal law, and is 
 always defended upon the same grounds as that presump- 
 tion, Mr. Redfield, in the passage just quoted from his 
 valuable work upon the Law of Railways, says that the 
 opposite rule is very much like requiring evidence of the 
 good character of one's witnesses before their character is 
 impeached, and assumes that the presumption in favor of 
 the plaintiff 's carefulness and prudence is like the pre- 
 sumption in favor of the sanity of plaintiff. Now, in 
 point of fact, the character of most persons whose testi- 
 mony is offered in evidence in courts of justice, is good, 
 or good enough so that it cannot be successfully im- 
 peached, and it is beyond cavil that an overwhelming 
 
^ 158.] THE BURDEN OF PROOF. 
 
 437 
 
 Tnajority of those who bring actions in the courts are not 
 •crazy. Whereas, as I have endeavored to show ^ it is not 
 a fact that a majority of those persons who bring actions 
 of negligence, were themselves free from the imputation 
 of contributory negligence, but, on the contrary, it is a 
 fact, that in a very large proportion of the cases it turns 
 •out that the plaintiff was himself at least partly to blame, 
 and that his own negligence, concurring with that of the 
 defendant, produced the mischief of which he complains. 
 Inasmuch as* that is true, the presumption of fact in any 
 individual case is that the plaintiff was himself careless. 
 The mathematical chance is largely against the plaintiff 
 in these actions, taking account of all the actions that are 
 brought. He succeeds not oftener than twice or three 
 times in ten in actions of this nature. The presumption, 
 therefore, that the plaintiff was careful is not in these ac- 
 tions a reasonable presumption. The chances are that 
 he was careless, and the presumption accordingly should 
 be that he was careless, to the extent of requiring him, as 
 a material part of his case, to show his freedom from con- 
 tributory fault. This, however, need not in every in- 
 stance be proved by affirmative testimony, but it may 
 be inferred from all the circumstances of the case. This 
 is well set forth by Wells, J., in Mayo v. Boston & Maine 
 R. R. Co.,* in the following language. "The burden 
 rests upon the plaintiff" (to show his own freedom from 
 negligence). "Although in form a proposition to be 
 •established affirmatively, it is not necessarily to be proved 
 by affirmative testimony addressed directly to its sup- 
 port. The burden is held to be upon the plaintiff for 
 the reason that it is a subordinate proposition, necessarily 
 involved in the more general one upon which the action 
 is founded, to wit, that the injury to the plaintiff was 
 
 1 See page 383 et seq., supra. " 104 Mass. 137, 140. 
 
438 THE BURDEN OF PROOF. [§ 159- 
 
 caused by the negligent or wrongful conduct of the de- 
 fendant. If this be shown by evidence which excludes; 
 fault on the part of the plaintiff, the proposition of due 
 care is established as effectually as by affirmative testi- 
 mony, all the circumstances under which the injury was 
 received being proved, if they show nothing in the con- 
 duct of the plaintiff, either of acts or neglect, to which 
 the injury may be attributed in whole or in part, the in- 
 ference of due care may be drawn from the absence of 
 all appearance of fault." ^ 
 
 § 159. The rule in New York. — The courts of New 
 York seem to have dealt with this question, at least in 
 the earlier cases, in a spirit of compromise. In the 
 later volumes of the reports there is to be observed a 
 decided tendency toward the rule that the plaintiff, as 
 part of his case, must establish his freedom from con- 
 tributory neglect, putting, accordingly, the burden of 
 proof upon him ; but in the earlier cases it appears that 
 the court endeavored to avoid committing itself irrevo- 
 cably to either of the two antagonistic rules, letting" 
 each case depend upon its own peculiar circumstances 
 in the matter of the burden of proof as to contribu- 
 tory negligence. On the one hand they avoid giving- 
 the odds arbitrarily, in every case, to the plaintiff, by 
 assuming his carefulness, as matter of law, at the starts 
 and, on the other hand, the plaintiff is not handicapped 
 with an obligation, in respect of the evidence, which as- 
 sumes the contrary. Under this ruling each case may 
 be said to be the rule unto itself. If the plaintiff's, 
 case, from the evidence, turns out to be of such a char- 
 
 • To the same effect, see Smith v. Way v. 111., &c., R. R. Co., 40 Iowa,. 
 Boston Gaslight Co.. 129 Mass. 318; 345; Tolman v. Syracuse, &c., R. R. 
 Craig ». New York, &c., R. R. Co., Co., 98 N. Y. 198, 202; S. C. 50 Am. 
 118 Id. 437; Commonwealth v. Bos- Rep. 649; Railroad Company z*. Glad- 
 ton &c ,R. R. Co., 126 Id. 61 ; Hinckley mon, 1 5 Wall. 401, 407 ; Teipel v. Hil- 
 V. Cape Cod R. R. Co., 120 Id. 257; sendegen (by Cooley, J.), 44 Mich. 461, 
 
§ 159"] THE BURDEN OF PROOF. 
 
 439 
 
 acter as in any degree to implicate him in respect of 
 negligence, then the burden of proof is upon him to 
 clear himself of blame, and his freedom from fault must 
 appear as a factor of his prima facie case. But if, per 
 contra, the plaintiff's case involves no such implication, 
 he may rest when he has shown the injury sustained and 
 the defendant's fault, and the burden of proof will then 
 be upon the defendant, to go free, if he may, because 
 of the contributory fault of the plaintiff, which it is for 
 him to establish. It is only upon such a theory as 
 this that the decisions of the New York courts can be 
 reconciled. An extended and somewhat careful reading 
 of the cases seems to warrant this distinction. Judge 
 Thompson says : " In New York . , . the decisions 
 are irreconcilable ; "^ but it is believed that hardly one in 
 the long list can be found where this rule, fairly applied, 
 will not appear to have controlled the ruling as to the 
 burden of proof. In Johnson v. Hudson River R. R. 
 Co.,* which was referred to with approval in the Supreme 
 Court of the United States by Mr. Justice Hunt * in 
 Railroad Co. v. Gladmon,* the court says : " I am of 
 opinion that it is not a rule of law of universal applica- 
 tion that the plaintiff must prove affirmatively that his 
 own conduct, on the occasion of the injury, was cautious 
 and prudent. The onus probandi in this, as in most other 
 cases, depends upon the position of the affair as it stands 
 upon the undisputed facts. Thus, if a carriage be driven 
 furiously through a crowded thoroughfare, and a person 
 is run over, he would not be obliged to prove that he was 
 cautious and attentive, and he might recover, though 
 
 ' Thomp. on Neg., 1177. case of Railroad Co. v. Gladmon, 15 
 
 * 20 N. Y. 65. Wall. 401, 406, by Mr. Justice Hunt, 
 
 " By a somewhat curious misar- and cited as taken from the opinion in 
 
 rangement of authorities this extract the case of Oldfield v. New Yorlc, 
 
 from the opinion of Denio, J., in the &c., R. R. Co., 14 N. Y. 310, affirm- 
 
 case of Johnson v. Hudson River R. ing S. C. 3 E. D. Smith, 103. 
 
 R. Co., 20 N. Y. 65, is quoted in the * 15 Wall. 401, 406. 
 
440 THE BURDEN OF PROOF. [§ 1 5 9. 
 
 there were no witnesses of his actual conduct. The nat- 
 ural instinct of self-preservation would stand in the place 
 of positive evidence, and the dangerous tendency of the 
 defendant's conduct would create so strong a probability 
 that the injury happened through his fault that no evi- 
 dence would be required. . . . The culpability of the 
 defendant must be affirmatively proved before the case 
 can go to the jury, but the absence of any fault on the part 
 of the plaintiff may be inferred from circumstances, and 
 the disposition of men to take care of themselves and 
 keep out of difficulty may be properly taken into consid- 
 eration." It is in this spirit that the New York cases 
 proceed, and by way of summing up, in the same opinion, 
 the learned judge says : " The true rule, in my opinion, 
 is this : The jury must eventually be satisfied that the 
 plaintiff did not, by any negligence of his own, contrib- 
 ute to the injury. The evidence to establish this may 
 consist in that offered to show the nature or cause of the 
 accident, or in any other competent proof. To carry the 
 case to the jury, the evidence on the part of the plaintiff 
 must be such as, if believed, .would authorize them to find 
 that the injury was occasioned solely by the negligence of 
 the defendant.. It is not absolutely essential that the 
 plaintiff should give any affirmative proof touching his 
 own conduct on the occasion of the accident. The char- 
 acter of the defendant's delinquency may be such as to 
 prove przma facte the whole issue ; or the case may be 
 such as to make it necessary for the plaintiff to show by 
 independent evidence that he did not bring the misfor- 
 tune upon himself. No more certain rule can be laid 
 down." 
 
 In a majority of cases, as has been already suggested, 
 under the operation of this rule, the burden will fall upon 
 the plaintiflf, because it will most generally happen that 
 something in the circumstances of the case puts the 
 
§ 1 59-] THE BURDEN OF PROOF. 
 
 441 
 
 plaintiff in a position where it is necessary and proper for 
 him to show not only that the defendant was wrong, but 
 that he was right. Wherever this is the case, this rule 
 very justly imposes the burden of proof upon him ; but 
 whenever it is not the case, as it will very occasionally 
 happen, the burden of proof as to contributory negli- 
 gence is upon the defendant. That this is exactly the 
 New York rule as the older judges, at the least, under- 
 stood it, a long line of cases-^otherwise irreconcilable — 
 sufficiently (femonstrates.^ ' 
 
 The development of the law in New York upon this 
 point is a curious, but very satisfactory demonstration, in 
 my judgment, of the essential reasonableness and propri- 
 ety of that rule of evidence which makes it incumbent 
 upon the plaintiff, as part of his case, to show his own 
 freedom from contributory fault when he brings an action 
 of negligence. We find in the New York reports, as 
 Judge Thompson suggests, a great number of wholly ir- 
 reconcilable decisions upon the point in question. The 
 Court of Appeals of that State has, in individual cases, 
 
 1 Spencer v. Utica, &c., R. R. Co., v. Broadway, &c., R. R. Co., 34 How. 
 S Barb. 337 ; Hackford v. New York, Fr. 239 ; S. C. 49 Barb. 529 ; Besiegel 
 &c., R. R. Co., 6 Lans. 381 ; S. C. 43 v. New York, &c., R. R. Co., 14 
 How. Pr. 222; Robinson v. Id., 65 Abb. Pr. (N. S.), 29 ; Warner 7/. New 
 Barb. 146 ; Suydam v. Grand St. R. York, &c., R. R. Co., 44 N. Y. 465 ; 
 R. Co., 41 Id. 375; Bush v. Brainard, S. C. 45 Barb. 299; Gillespie v. New- 
 I Cowan, 78 ; Harlow v. Humiston, 6 burgh, 54 N. Y. 468 ; Reynolds v. New 
 Id. 189; Button V. Hudson River, York, &c., R. R Co., 58 Id. 248 (re- 
 Ac, R. R. Co., 18 N. Y. 248; Wilds versing S. C. 2 N. Y. Super. Ct. 644); 
 V. Id., 24 Id. 430; Squire v. Central Cordell v. New York; &c., R. R. Co., 
 Park R. R Co., ^ Jones & Sp. 436; 6 Hun, 461 ; S. C. 64 N. Y. 535 ; 70 
 Johnson w. Hudson River, &c., R. R. Id. 119; Hale v. Smith, 78 Id. 480; 
 Co., 20 N. Y. 65 ; s. C. 6 Duer, 633 ; 5 Hart v. Hudson River Bridge Co., 80 
 Duer, 21; Ryan v. Hudson River, Id. 622; S. C. 84 Id. 56; Riceman v. 
 &c., R. R. Co., I Jones & Sp. 137; Havemeyer, 84 Id. 647 ; Jones z/. New 
 Holbrook v. Utica, &c.. R. R. Co., 16 York, &c., R. R. Co., 10 Abb. N. C. 
 Barb. 113; S. C. 12 N. Y. 236; De 200; s. C. 62 How. Pr. 450; Becht w. 
 Benedetti v. Mauchin, i Hilt. 213; Corbin, 92 N. Y. 658; Lee v. Troy 
 Ernst V. Hudson River, &c., R. R. Citizens' Gas Light Co., 98 N. Y. 115; 
 Co., 24 How. Pr. 97; S. C. 32 Id. 262; Tolman v. Syracuse, &c., R. R. Co., 
 19 Id. 205 ; 32 Barb. 159; 35 N. Y. 9; 98 Id. 198; S. C 50 Am. Rep. 649; 
 39 Id. 61 ; Curran z'. Warren Chemi- Debevoise z/. New York, &c.,R. R.Co., 
 cal Manfg. Co., 36 N. Y. 153; Burke 98 Id. 377; S. C. 50 Am. Rep. 683. 
 
442 THE BURDEN OF PROOF. [§ 1 59. 
 
 taken now one position and now the other upon the mat- 
 ter of the burden of proof in actions of this nature. But, 
 taken together, the reported cases seem to indicate that 
 the court, after groping about, or perhaps beating about, 
 for some middle ground, and after much reluctance and 
 some plain mistakes, has finally come squarely to the po- 
 sition that the burden of proof is upon the plaintiff to 
 show- that his own conduct, in faciendo or in non facien- 
 do, did not, in the legal intent, contribute to occasion the 
 mischief of which he complains. Turning to the report 
 books we find that in the case of Spencer v. Utica, &c., 
 R. R. Co., decided in i849,nhe Supreme Court declared it 
 a " stern and unbending rule " that the plaintiff in these 
 actions " must establish the proposition that he himself 
 was without negligence and without fault." * This is the 
 earliest case in which it is clear that any New York court 
 undertook to lay down a rule upon this point. The cases 
 cited by the learned judge in support of his position, 
 "which," he says," has been settled by a long series of ad- 
 judged cases,"* do not, in my opinion, very clearly declare 
 such a doctrine. No one of them is any stronger author- 
 ity to this point than the case of Butterfield v. Forrester,* 
 from which the rule is a mere inference. But, in 1849, we 
 find the Supreme Court of New York committed to the 
 position that the burden of proof is upon the plaintiff, 
 and all the earlier cases, as far as they go, inclining, it may 
 be said, to that rule. In 1873 the same court took an 
 opposite ground, declaring that " the condbrring negli- 
 gence of the plaintiff is matter of defense, and the plaint- 
 iff is under no obligation to prove anything to entitle him 
 
 ' 5 Barb. 337. bun v. Payne, 19 Wend. 399 ; Harlow 
 
 * " This is a stern and unbending v. Humiston, 6 Cowen, 189, 191 ; Cor- 
 
 rule which has been settled by a lies v. Gumming, 6 Id. 181, 184; 
 
 long series of adjudged cases, which Brownell v. Flagler, 5 Hill, 282. 
 
 we cannot overrule if we would," » Spencer w. Utica, &c., R. R. Co., 
 
 citing Bush v. Brainard, I Cowen, 78 ; 5 Barb. 337, 338. 
 
 Brown v. Maxwell, 6 Hill, 592 ; Rath- * 11 East, 60. 
 
§ 1 59-] THE BURDEN OF PROOF. 
 
 445 
 
 to recover but the injury, and that it was caused by de- 
 fendant's negligence." ^ The question first came before 
 the Court of Appeals in 1858, in the case of Button v. 
 Hudson River R. R. Co.,* wherein a very singular posi- 
 tion was taken. The reporter seems to have thought that 
 the case declared the rule that the burden is upon the 
 plaintiff, for in the head note he says : " In an action for 
 negligence the burden is upon the plaintiff to prove af- 
 firmatively that he is guiltless of any negligence proxi- 
 mately contpibuting to the injury." If only the opinion 
 were equal to the syllabus there would be no room Sox 
 conjecture or dispute, and we might count this earliest 
 utterance of the court of last resort in New York in fa- 
 vor»of one rule. But in the opinion Mr. Justice Strong 
 says : " The other point " [for the appellant],' " presents 
 the question upon whom was the burden of proof, in ref- 
 erence to negligence of the intestate, conducing to the 
 injury — whether it belonged to the plaintiff to prove 
 affirmatively the absence, or to the defendant to prove 
 affirmatively the presence of such negligence. In regard 
 to all the circumstances essential to the cause of action, 
 the plaintiff held and was required to sustain the affirma- 
 tive. Among those circumstances were that the defend- 
 ants were negligent, and that the injury resulted from that 
 negligence. If the intestate was negligent, and his negli- 
 gence concurred with that of the defendants in producing 
 the injury, the plaintiff had no cause of action. . , . 
 In this view the exercise of due care by the intestate was 
 an element of the cause of action. Without proof of it^ 
 it would not appear that the negligence of the defendants 
 caused the injury." This language is plain, and indicates 
 clearly the mind of a court that would put the burden of 
 
 ' Hackford v. New York, &c., R. » 18 N. Y. 248. 
 R. Co., 6 Lans. 381. See, also, Rob- ' Mr. Charles O'Conor was counsel 
 inson v. Id., 65 Barb. 146. for the appellant. 
 
444 THE BURDEN OF PROOF, [§ 1 59. 
 
 proof upon the plaintiff in such an action. This utter- 
 ance, moreover, is fortified by an imposing array of au- 
 thorities, including Spencer v. Utica, &c., R. R. Co., to 
 which I have already referred, and the cases cited by the 
 Supreme Court judge in that case,^ as well as many other 
 English and American decisions that require the plaint- 
 iff, as part of his case, to establish his own freedom 
 from negligent default. This done, the court continues : 
 ^' It must not be understood that it was incumbent on 
 the plaintiff, in the first instance, to give evidence for 
 the direct and special object of establishing the observ- 
 ance of due care by the intestate; it would be enough 
 if the proof introduced of the negligence of the defend- 
 ants and the circumstances of the injury, prima facie 
 established that the injury was occasioned by the neg- 
 ligence of the defendants, as such evidence would ex- 
 clude the idea of a want of due care by the intestate 
 aiding to the result," This is not far from saying 
 that the plaintiff must show himself free from fault, 
 which he may do by showing the defendant in fault — 
 no very luminous proposition. In the reporter's note 
 it is said of Selden, J,: "The latter objected to an 
 implication which he conceived to lurk in the opinion 
 of Strong, J, {but which Strong, y., disclaimed^, that, 
 in the absence of proof of any circumstances import- 
 ing negligence on the part of the plaintiff, there might 
 be a presumption thereof which he is required to 
 repel, whereas, his negligence must be inferred from 
 ■evidence and is not to be presumed." From which it is 
 to be inferred that so much of Mr. Justice Strong's 
 opinion as plainly imposes upon the plaintiff the burden 
 of proof in these cases is to be read as of some esoteric 
 or acroamatical significance, being designed to announce 
 
 * See note 2, page 442, supra. 
 
§ 1 59-] THE BURDEN OF PROOF 
 
 445 
 
 something quite different from what it appears to an- 
 nounce^ 
 
 Without any attempt to place this case as either for 
 or against the rule which puts the burden of proof upon, 
 the plaintiff, we find in Johnson v. Hudson River R. R. 
 Co.^ that Mr. Justice Denio, after declaring that " the 
 person injured must not by his own negligence have con- 
 tributed to the injury," and insisting that "this is an 
 element in the definition of the cause of action," defines 
 the rule as follows : " I am of opinion that it is not a rule 
 of universal application that the plaintiff must prove 
 affirmatively that his own conduct on the occasion of the 
 injury was cautious and prudent." This should seem to 
 imply that such a rule obtained in the courts of New 
 York at that period, generally, if not as " a rule of univer- 
 sal application." The influence of this decision, as I have 
 already indicated,* is — so far as it may be regarded as 
 authoritative at present, and not, by implication at least, 
 overruled — in favor of allowing each case to be a rule unto 
 itself on this point, requiring the plaintiff to show, or the 
 defendant to show, contributory negligence as the circum- 
 stances of each particular case may warrant. 
 
 Passing by the case of Wilds v. Hudson River R. R. 
 Co.,* a landmark in the law on this point in New York, 
 we come to the case of Ernst v. Hudson River R. R. 
 Co.,* wherein the court for the first time was fully and 
 plainly committed to the rule that requires the burden of 
 proof to be upon the plaintiff. The language is unquali- 
 fied : " A party suing for negligence must come into court 
 faultless. He must not present a mere balanced case. 
 The burden of proof is upon him and he must satisfy the 
 court, by the greater weight of testimony, that, without 
 any carelessness or blame on his part, he has suffered an 
 
 » 20 N. Y. 65. • 24 N. Y. 430. 
 
 * See pages 439 et seg., supra. * 24 How. Prac. 97. 
 
446 THE BURDEN OF PROOF. [§ 1 59. 
 
 injury." This seems to have been the culmination of a 
 long series of years of doubt and vacillation, and here the 
 court has rested. The later cases, without exception I 
 believe, impose upon the plaintiff the burden of proving, 
 as an essential element of his case, that his own conduct 
 did not contribute to occasion the injury.^ It is some- 
 times said that the plaintiff must prove "affirmatively" 
 that he was himself free from negligence, but by this it is 
 believed nothing more is meant than that the fact of such 
 freedom from negligence on the part of the plaintiff must 
 be made to appear. It is a necessary element in the 
 plaintiff's case, and something for him to show. In the 
 very recent case of Tolman v. Syracuse, &c., R. R. Co.,* 
 Finch, J. says: "The burden was upon the plaintiff of 
 showing affirmatively, either by direct evidence, or the 
 drift of surrounding circumstances, that the deceased was 
 himself without fault, and approached the crossing with 
 prudence and care, and with sense alert to the possibility 
 of approaching danger."' From which it may be inferred 
 that when it is said that the plaintiff must "show affir- 
 matively," etc., it is meant that the fact must appear, if 
 not by the drift of surrounding circumstances, by di- 
 rect evidence to the point. In Lee v. Troy Citizens' 
 Gaslight Co.,* it is held- that it is not essential that 
 
 - Warner v. New York, &c., R. R. Hudson River Bridge Co., 80 N. Y. 
 
 Co., 44 N. Y. 465: Reynolds v. Id., 622; S. C. 84 Id. 56; in which the 
 
 58 Id. 248; Cordell v. Id., 75 Id. 330; court says: ' It was incumbent upon 
 
 Hale V. Smith, 78 Id. 480 ; Hart v. the plaintiff to show affirmatively that 
 
 Hudson River Bridge Co., 80 Id. 622; the negligence of the defendant was 
 
 S. C. 84 Id. 56 ; Riceman v. Have- the sole cause of the death of the de- 
 
 meyer, 84 Id. 647 ; Becht v. Corbin, ceased. But it needs not that this be 
 
 92 Id. 658; Jones v. New York, &c., done by the positive and direct evi- 
 
 R. R. Co., 10 Abb. N. C. 200; S. C. dence of the negligence of the defen- 
 
 62 How. Prac. 450; Lee v. Troy Citi- dant and of the freedom from negli- 
 
 zens' Gaslight Co.,98 N. Y 115; Tol- gence of the deceased. The proofs 
 
 man v. Syracuse, &c., R R. Co., 98 may be indirect, and the evidence had 
 
 Id. 198; s. c. 50 Am. Rep. 649; Debe- by showing circumstances from which 
 
 voisez/. New York, &c., R. R. Co.,98 the inference is fairly to be drawn 
 
 Id. 377 ; s. C. 50 Am. Rep. 683. that these principal and essential facts 
 
 » 98 N. Y. 198, 202; s. c. 50 Am. existed." 
 Rep. 649 decided February, 1885. « 98 N. Y. 115. 
 
 ' To the same effect see Hart v. 
 
§ i6o.] 
 
 THE BURDEN OF PROOF. 
 
 447 
 
 the complaint, in an action of negligence, shall specifically 
 allege absence of contributory negligence on the part of 
 the plaintiff ; that such an allegation is substantially in- 
 volved in the averment that the injury complained of was 
 occasioned by the negligence of the defendant, and that 
 to prove this averment it is necessary, the burden being 
 upon the plaintiff, for the plaintiff to establish the fact 
 that his own negligence did not cause or contribute to 
 cause the injury.^ 
 
 In Connecticut " and Vermont * there is to be observed, 
 especially in the earlier decisions, some of which are cited 
 in the notes, a tendency to the same incertitude upon 
 this question that I have considered at length in the New 
 York cases.* 
 
 § 1 60. Conclusions. — Upon the question of where to 
 
 1 In 1872, Mr. Justice Hunt, who 
 may be supposed to have been famil- 
 iar with the trend of the New York 
 decisions, said, in his opinion in the 
 Supreme Court of the United States 
 in the case of Railroad Company v. 
 Gladmon, 15 Wall. 401, 407: "The 
 later cases in the New York Court of 
 Appeals, I think, will show that the 
 trials have almost uniformly proceeded 
 upon the theory that the plaintiff is 
 not bound to prove aflBrmatively that 
 he was himself free from negligence, 
 and this theory has been accepted as 
 the true one. Generally, as here, the 
 proof which shows the defendant's 
 negligence shows also the negligence 
 or caution of the plaintiff." While 
 the latter remark is clearly true, and 
 serves to emphasize what has already 
 teen said as to the requirement of af- 
 firmative proof of the plaintiff's free- 
 dom from negligence, it is obvious 
 that the former part of the learned 
 justice's dictum would not now be 
 made by any informed lawyer or judge. 
 The Court of Appeals is as clearly 
 committed to the rule declared for 
 the first time in ElTist v. Hudson Riv- 
 er R. R. Co., 24 How. Prac. 97, supra, 
 as the Supreme Court of the United 
 
 States can ever be to the opposite 
 rule. Mr. Justice Hunt's dictum was 
 hardly correct in 1872, and would not 
 now be correct at all. 
 
 * Beers v. Housatonic, &c.. R. R. 
 Co., 19 Conn. 566; Park v. O'Brien, 
 23 Id. 339; Fox V. Glastenbury, 29 
 Id. 204; Bell V. Smith, 39 Id. 211. 
 
 •Lester v. Pittsford, 7 Vt. 158; 
 Barber v. Essex, 27 Id. 62 ; Trow v. 
 Vermont, &c., R. R. Co., 24 Id. 487; 
 Hyde v. Jamaica, 27 Id. 443 ; Hill v. 
 New Haven, 37 Id. 501 ; Walker v. 
 Westfield, 39 Id. 246 ; Bovee v. Town 
 of Danville, 53 Id. 183. 
 
 * Consult upon the general question 
 of the burden of proof as to contribu- 
 tory negligence, Abbott's Trial Evi- 
 dence 594, §§ 33-38 incl. ; Shear & 
 Redf. on Neg., §§43, 44; Thomp. on 
 Neg., 1053, §48, 1175, §24. 1253, 
 §36; Wharton on Neg., §§421,423 
 430, incl., 477, 990; Field on Dam- 
 ages, 182, §g 189. 190, 191 : "Contrib- 
 utory Negligence and the Burden of 
 Proof,'' by Edward E. Sprague, Esq., 
 of New York; 6 New York State Bar 
 Association Reports, 28 Am. Rep., 
 note at page 563; 39 Am. Rep., note 
 at page 511. See, also. 15 Western 
 Jurist (1883), 197, 209, 529. 
 
448 THE BURDEN OF PROOF. [§ 160. 
 
 put the burden of proof in actions of negligence when 
 contributory negligence is the issue, which we have con- 
 sidered in this chapter, we find the courts of last resort 
 by no means agreed. On theone hand, in Massuchusetts, 
 Connecticut, Maine, Michigan, Iowa, Indiana, Illinois, 
 Mississippi, Louisiana, North Carolina, Oregon, and New 
 York the burden is upon the plaintiff. In each of these 
 States the rule is, as it is well expressed in Cordell v. 
 New York, &c., R. R. Co.^ by the Court of Appeals of 
 New York, that "care on the part of one seeking to hold 
 another liable for neglect must be established by proof. 
 Where there is no proof of such care the court should 
 nonsuit. ■ • • Absence of negligence will never be 
 presumed ; " or, as it is well put by Judge Cooley in 
 Teipel v. Hilsendegen* : " When one sues to recover 
 damages for a negligent injury the gravamen of his com- 
 plaint is that he has been damnified by the wrongful and 
 negligent action of the defendant, without having con- 
 tributed thereto by negligent conduct of his own. The 
 absence of contributory negligence is therefore a part of 
 his case, and it is quite proper to say that he should show 
 that he acted with due care." But, on the other hand, in 
 Alabama, California, Colorado, Georgia, Kansas, Ken- 
 tucky, Maryland, Minnesota, Missouri, New Hampshire, 
 New Jersey, Nebraska, Ohio, Pennsylvania, Rhode Is- 
 land, South Carolina, Texas, West Virginia, Wisconsin, 
 and Vermont, as well as by the Supreme Court of the 
 United States, and in England, it is held that contributory 
 negligence is matter of defense, and that the burden is 
 upon the defendant, unless the plaintiff's own case raises 
 a presumption of negligence on his part, to allege and 
 prove the concurrent default of the plaintiff. " The rule 
 intended," says Chief Justice Ryan in the case of Pri- 
 
 1 64 N. Y. 535. 2 44 Mich. 461. 
 
§ l6o.] THE BURDEN OF PROOF. 
 
 449 
 
 deaux v. City of Mineral PoinV " is, that a plaintiff giv- 
 ing evidence of the negligence of the defendant and the 
 resulting injury to himself, without showing any contrib- 
 utory negligence, is bound to go no further ; he is not 
 required to negative his own negligence. If, however, 
 the plaintiff, in proving the injury, shows contributory 
 negligence sufficient to defeat the action, he disproves his 
 own case of injury by the negligence of the defendant 
 alone. If the plaintiff's evidence leave no doubt of the 
 fact, his contributory negligence is taken, as matter of law, 
 to warrant a nonsuit. If the plaintiff's evidence leave 
 the fact in doubt, the evidence of contributory negligence 
 on both sides should go to the jury." 
 
 Between these two antinomies there seems to be no 
 practicable middle ground. The courts in New York, 
 Connecticut, and Vermont strove to find some tenable 
 mean, but the result has been that, in the two former 
 States, the courts have at last settled down to the rule 
 that puts the burden upon the plaintiff, while in the latter 
 State the tendency is toward the other rule. In Ver- 
 mont, perhaps it is safe to say, the law is not settled. As 
 long ago as the year 1880, Mr. Browne, in his note to the 
 case of Buesching v. St. Louis Gaslight Co.,^ after an ex- 
 tended review of the later New York decisions, summed 
 up as follows: "We think the following is the rule 
 deducible from the New York decisions : If on the plaint- 
 iflf 's affirmative evidence it clearly appears that he himself 
 was materially negligent, he may be nonsuited,* other- 
 wise the defendant, assuming that' negligence on his part 
 is shown, must give his proof. If on the whole case it 
 
 * 43 Wis. 513; S. C. 28 Am. Rep. where the English common law rule 
 558. as to contributory negligence obtains, 
 
 * 39 Am. Rep., 503, 513; S. C. 73 the plaintiff, it is believed, would suf- 
 Mo. 219. fer a nonsuit if his own case demon- 
 
 » This, it may be remarked, is the strated his negligence, 
 rule everywhere. In any jurisdiction 
 
 29 
 
450 THE BURDEN OF PROOF. [§ 1 6b. 
 
 does not dearly appear that the plaintiff was free from 
 negligence, he may be nonsuited ; but if the evidence is 
 conflicting and doubtful it must go to the jury." This, 
 as a statement of the rule, is hardly more than a circum- 
 locution, and is about equivalent to a rule that the burden 
 of proof is upon the plaintiff. Since 1880, when this 
 statement of the law was published, the Court of Appeals 
 has taken somewhat advanced ground in favor of the 
 rule, and reiterated many times the doctrine first an- 
 nounced in Ernst v. Hudson River R. R. Co.^ in 1862, 
 so that in New York the rule may be considered as well 
 settled as any rule of law is ever likely to be. 
 
 While, as the reports show, there is no tendency on the 
 part of any court which holds that the burden of proof in 
 these cases is upon the plaintiff, to recede from that posi- 
 tion, it is suggested that, from the opinions in the reports of 
 those States where the contrary rule obtains, it may be 
 spelled out that the doctrine which makes contributory 
 negligence, semper ubique, matter of defense, and puts the 
 burden always upon the defendant, is not regarded entirely 
 satisfactory. It is those courts that have all the trouble 
 over the matter. Were their position more tenable, and if 
 their doctrine were less grounded in a sentiment, it is, 
 with deference, submitted that the reported cases might 
 show less floundering, and fewer attempts to modify and 
 extenuate, with a correspondingly higher measure of 
 evenness and certitude. 
 
 * 24 How. Prac. 97. 
 
CHAPTER X. 
 
 LAW AND FACT. 
 
 § i6i. Contributory negligence a mixed I § 163. Contributory negligence as a Sues- 
 question of law and fact. ( tion of fact. 
 162. Contributory negligence as mat- 
 ter of law. 
 
 • 
 
 § 161. Contributory negligence a mixed question of 
 law and fact. — As a general proposition of law, it is 
 agreed that cases of negligence present a mixed ques- 
 tion of law and fact, by which it is meant to say, that in 
 an action in a court of justice in which the negligence of 
 either plaintiff or defendant is an issue, or the issue, it 
 devolves upon the court to say, as matter of law, what is, 
 or amounts to negligence, and upon the jury to say, as 
 matter of fact, in the light of the instruction from the 
 bench, whether or not, in the particular case at bar, the 
 facts as proven to their satisfaction, warrant the imputa- 
 tion of negligence. In other words, the court tells the 
 jury what negligence is, and the jury tells the court what 
 the facts of the case show upon the question of negli- 
 gence ; the judge defines negligence in the charge, and 
 the jury apply the definition to the facts in the verdict. 
 " Negligence," says the Supreme Court of California, " is 
 always a mixed question of law and fact, and when the 
 facts are doubtful, they must be submitted to the jury 
 under such instructions from the court as will enable 
 them to apply the law to the facts. "^ An uncounted 
 multitude of authorities might be cited in support of this 
 elementary proposition.^ Dr. Wharton, in his discussion 
 
 1 Femandes v. Sacramento City « Wharton on Neg., § 420 (either 
 Ry. Co., 52 Cal. 45, 50. edition;, and the cases collected; 
 
452 
 
 LAW AND FACT, 
 
 [§ t6i. 
 
 of this subject says : " Negligence, we must remember at 
 the outset, is not a fact which is the subject of direct 
 proof, but an inference from facts put in evidence, A 
 witness is asked, not whether A, was negligent at a par- 
 ticular juncture, but what were the facts of the case, and 
 from these, negligence, if there be any, is to be inferred."^ 
 It is the province of the jury, not only, in such cases as. 
 
 Thomp. on Neg., 1235, | 10; Wells' 
 Law & Fact, §§ 263-265 incl. ; Holmes' 
 Common Law, 110 et seg.; and see, 
 Herring v. Wilmington, &c., R. R. 
 Co., 10 Ired. (Law), 402; S. C. 51 Am. 
 Dec. 395 ; Wright v. Maiden, &c., R. 
 R. Co., 4 Allen, 289; Cleveland, &c., 
 R. R. Co. V. Terry, 8 Ohio St. 584; 
 Detroit, &c., R. R. Co. v. Van Stein- 
 burg, 17 Mich. 99, 118; Trow v. Ver- 
 mont, &c., R. R. Co., 24 Vt. 487; S. C. 
 
 58 Am. Dec. 191 ; Barton v. St. Louis, 
 &c., R. R. Co., 52 Mo. 253; S. C. 14 
 Am. Rep. 418; Keller v. New York, 
 &c., R. R. Co., 24 How, Prac. 172; 
 Pittsburgh, &c., R. R. Co. v. McClurg, 
 56 Penn. St. 300; Norrisz'. Litchfield, 
 35 N. H. 277 ; Raymond v. City of 
 Lowell, 6 Cush. 524; s. c. 53 Am. 
 Dec. 57 ; Lane v. Atlantic Works, 107 
 Mass. 104; Gerald z/. Boston, 108 Id. 
 580; Knight I*. Ponchartrain, &c., R. 
 R. Co., 23 La. Ann. 462 ; Whirley v. 
 Whiteman, i Head. 610; Union Pa- 
 cific R. R. Co. V. Rollins, 5 Kan. 
 180; Lake Shore, &c., R. R. Co. v. 
 Miller, 25 Mich. 274 ; Baker v. Fehr, 
 97 Penn. St. 70; Germantown, &c., 
 R. R. Co. V. Walling, 97 Id. 55; 
 Fitts V. Cream City, &c., R. R. Co., 
 
 59 Wis. 323 ; City of Montgomery v. 
 Wright, 72 Ala. 41 1 ; S. C. 47 Am. 
 Rep. 422 ; Lanier v. Youngblood, 73 
 Ala. 587 ; Hall v. Union Pacific R. 
 R. Co., 4 McCrary, 257 ; Harris v. 
 Id., 4 Id. 454; Delgar v. City of St. 
 Paul, 4 Id. 634; McKeeverz'. Market 
 St., &c., R. R. Co., 59 Cal. 294; 
 Kansas, &c. , R. R. Co. v. Ward, 4 
 Colo. 30 ; Colorado, &c., R. R. Co. v. 
 Holmes, 5 Id. 197 ; Behrens v. Kansas, 
 &c.,R. R. Co., 5 Id. 400; Atlanta, 
 &c., R. R. Co. V. Wyly, 65 Ga. 120 ; 
 South, &c., R. R. Co. V. Singleton, 
 
 66 Id. 252 ; Cook v. Western, &c., R_ 
 R. Co., 69 Id. 619 ; Chicago, &c., R. 
 R. Co. V. Pennell, 94 111. 448 ; Wa- 
 bash, &c., R. R. Co. v. Elliott, 98 Id, 
 408 ; Pennsylvania Co. v. Stoelke, 104. 
 Id. 201 ; Wabash, &c., R. R. Co. v. 
 Shacklet, 105 Id. 364; s. c. 44 Am_ 
 Rep. 791 ; Ohio, &c., R. R. Co. v. 
 CoUam, 73 Ind. 261 ; S. C. 38 Am. 
 Rep. 134; Cincinnati. &c., R. R. Co_ 
 V. Peters, 80 Ind. 1 68 ; Pennsylvania 
 Co. V. Dean, 92 Id. 459 ; McLaury v. 
 City of McGregor, 54 Iowa, 717 ; Slos- 
 son V. Burlingfton, &c., R. R. Co., 60. 
 Id. 215; Central, &c., R. R. Co. v. 
 Henigh, 23 Kan. 347 ; Atchison, &c., 
 R. R. Co. V. Smith, 28 Id. 561 ; County 
 Com. V. Burgess, 61 Md. 291 ; John- 
 son V. Boston Towboat Co., 135 Mass. 
 209; Peverly z;. Boston, 136 Id. 366; 
 Tyler v. Nevf York, &c., R. R. Co., 
 137 Id. 238 ; Loewer v. City of Seda- 
 lia, 77 Mo. 431 ; Ruland v. South 
 Newmarket, 59 N. H. 291 ; Dudley w. 
 Camden Ferry Co., 45 N. J. Law, 368 ; 
 Moebus v. Becker, 46 Id. 41 ; Palmer 
 V. Dearing, 93 N. Y. 7 ; Ochsenbein 
 V. Shapley, 85 Id. 214; Bucher v. 
 New York, &c., R. R. Co., 98 Id. 
 128; Walsh V. Oregon, &c., R. R. 
 Co., 10 Oregon, 250; Texas, &c., R. 
 R. Co. v. Herbeck, 60 Texas, 602; 
 Louisville, &c., R. R, Co. v. Goetz, 
 79 Ky. 442 ; Claxton's Admr. v. Louis- 
 ville, &c., R. R. Co., 13 Bush. 636; 
 Thompkins v, Kanawha Board, 21 
 WestVa. 224; Fassett v. Roxbury, 
 55 Vt. 552; Kemp V. Phillips, 55 Id. 
 69; Metropolitan, &c., Ry. Co. v. 
 Jackson, 3 L. R. App. Cas. 193; 
 Dublin, &c., Ry. Co. v. Slattery, 3 Id. 
 1155 ; Manzoni v. Douglas, 6 L. R. 
 Q. B. Div. 145. 
 
 1 Wharton on Neg. (2d ed.), § 42°^ 
 
^ 1 6 1.] LAW AND FACT. 
 
 453 
 
 these, to find the facts, but to draw for themselves the 
 inferences from the facts. Says the Supreme Court of 
 California to this point : " The testimony consists of a 
 series of circumstances from which the jury are to find 
 ■on the issue of negligence. The jury under such circum- 
 stances, are to make such inferences from the testimony 
 as legitimately and justly follow, on which to base their 
 verdict. They are not only to find the facts, but the 
 inferences from them,"^ and to the same effect in Long- 
 -enecker v. Pennsylvania R. R. Co.,* it is said: " Upon a 
 state of facts admitted, or proved by direct and undis- 
 puted testimony, the court may pronounce the law ap- 
 plicable thereto ; but when alleged facts are the subject 
 •of inference from other facts and circumstances shown 
 by the evidence, it is the exclusive province of the jury- 
 to consider the testimony and ascertain the facts under 
 proper instructions from the court." 
 
 In the trial of a cause in which the negligence of 
 either party is an issue, it is a preliminary question of 
 law for the court, whether there is any evidence that 
 ought reasonably to satisfy the jury that an alleged fact 
 is established. If there is evidence from which the jury 
 can properly find the question for the party upon whom 
 the burden of proof rests, it should be submitted, but on 
 the other hand, if the evidence is wholly insufficient to 
 justify the jury in such finding, and the court would be 
 justified in setting aside the verdict, as against evidence, 
 if they did so find, then the testimony should be with- 
 drawn from the consideration of the jury, and the ques- 
 tion is one of law.* 
 
 Inasmuch as contributory negligence is nothing else 
 than negligence merely, on the part of one who is plaint- 
 
 * McKeever v. Market St. R. R. " Longenecker v. Pennsylvania R. 
 Co., 59 Cal. 294, 300. R. Co., 105 Penn. St. 328, supra. 
 
 s 105 Penn. St. 328, 332. 
 
454 LAW AND FACT. [§ 162, 
 
 iff in an action of negligence, all the rules of law appli- 
 cable to the negligence of the defendant, or negligence 
 merely, are applicable, without addition or abatement, to 
 the negligence of the plaintiff, or contributory negligence,^ 
 and the same rules that apply to contributory negligence 
 upon this point are equally to be applied to comparative 
 negligence as that doctrine obtains in Illinois.^ 
 
 § 162. Contributory negligence as matter of law. — 
 What amounts to negligence is, as we have already seen,, 
 a question of law. It is for the court to say, in a majority 
 of instances, what is, and what is not, negligence as an 
 abstract proposition. When, therefore, the facts of a 
 given case are undisputed, and the inferences, or conclu- 
 sions to be drawn from the facts, indisputable ; when the 
 standard of duty is fixed and defined, so that a failure to 
 attain it is negligence beyond a cavil, then contributory 
 negligence is matter of law. In such a case there would 
 be nothing for the jury to decide. The case has decided 
 itself, and it only remains to the court to declare the rule- 
 When the facts are unchallenged, and are such that rea- 
 sonable minds could draw no other inference or conclusion, 
 from them, than that the plaintiff was, or was not, at fault,, 
 then it is the province of the court to determine the; 
 question of contributory negligence as one of law,* and 
 
 1 Hoye V. Chicago, &c., R. R. Co., 14; West Chester, &c., R. R. Co. v. 
 
 Sup. Ct. Wis., March 31, 1885, 23 N. McElwee, 67 Penn. St. 311 ; Rudolphy 
 
 W. Rep. 14; Thomp. on Neg., 1178. v. Fuchs, 44 How. Prac. 155: Baker 
 
 s Wabash, &c., R. R. Co. v. EUiott, v. Fehr, 97 Penn. St. 70; German- 
 
 98 111. 481 ; Wells' Law & Fact, 221 town, &c., R. R. Co. v. Walling, 97 
 
 § 263. Id. 55; City Council of Montgomery- 
 
 s Fernandes v. Sacramento City R. v. Wright, 72 Ala. 411; s. C. 47 Am. 
 
 R. Co., 52 Cal. 45 ; Abend v. Terre Rep. 422; Colorado, &c., R. R. Co. 
 
 Haute, &c., R. R. Co., Sup. Ct. Illi- v. Holmes, 5 Colo. 197; McLauryw. 
 
 nois, Sept. .27, 1884, 19 Cent. Law City of McGregor, 54 Iowa, 717; 
 
 Jour. 350, and the annotation by Moebus w. Becker, 46 N. J. Law, 41 ; 
 
 Eugene McQuillin, Esq. ; Hoye v. Curran v. Warren Manfg. Co., 36 N. 
 
 Chicago, &c., R. R. Co., Sup. Ct. Y. 153; Walsh w. Oregon Railway &. 
 
 Wis., March 31, 1885, 23 N. W. Rep. Navigation Co., 10 Oregon, 250. 
 
§ I62.] 
 
 LAW AND FACT. 
 
 455 
 
 when the case is all against the plaintiff, there may prop- 
 erly be a nonsuit ; but, in the language of Mr. Field,^ 
 " to justify a nonsuit on the ground of contributory neg- 
 ligence, the evidence against the plaintiff should be so 
 clear as to leave no room for doubt, and all material facts 
 must be conceded, or established beyond controversy." 
 It will, it is plain, in point of fact, very rarely occur that 
 the case which the evidence discloses, either for or against 
 the plaintiff, is so clear and incontestable as to leave no 
 room for difference of opinion as to the merits. In almost 
 every case something will appear upon which there may 
 be contrariety of judgment, so that, in the majority of 
 instances, the question of the plaintiff's negligence will be 
 one of fact to be ultimately determined by the jury. In 
 the case of Detroit, &c., R. R. Co. v. Van Steinburg," 
 Judge Cooley says : " The case, however, must be a very 
 clear one which w^ould justify the court in taking upon 
 itself this responsibility. For, when the judge decides 
 that a want of due care is not shown, he necessarily fixes 
 in his own mind, the standard of ordinary prudence, and 
 measuring the plaintiff's conduct by that, turns him out 
 of court upon his opinion of what a reasonably pru- 
 dent man ought to have done under the circumstances. 
 He thus makes his own opinion of what would be gen- 
 erally regarded as prudence a definite rule of law. It is 
 quite possible that if the same question of prudence were 
 submitted to a jury, collected from the different occupa- 
 tions of society, and, perhaps, better competent to judge 
 of the common opinion, he might find them differing with 
 him as to the ordinary standard of proper care.' The 
 
 ^ Field on Damages, 519. drawn from the body of the commu- 
 
 * 17 Mich. 99, 120. nity, comprising men of various occu- 
 
 » In the very able opinion of Lord, pations and grades of intelligence, 
 
 J., in Walsh v. Oregon R. R. & Navi- better secures that average judgment 
 
 gation Co., 10 Oregon, 250, 258, it is which it is the aim of the law to 
 
 said to this point : — " Twelve men, obtain, and which, the law assumes, 
 
456 LAW AND FACT. [§ 162. 
 
 next judge, trying a similar case, may also be of a dififerent 
 opinion, and, because the case is not clear, hold that to be 
 a question of fact which the first has ruled to be one of 
 law. Indeed, I think the cases are not so numerous as 
 has been sometimes supposed in which a judge could 
 feel at liberty to take the question of the plaintiff's negli- 
 gence away from the jury." 
 
 That contributory negligence is matter of law is 
 plainly the exception and not the rule. In a perfectly 
 plain case, plain as to the facts at issue, and plain as to all 
 the reasonable inferences from those facts, the negligence 
 of the plaintiff may be a question for the court alone ; 
 but, inasmuch as questions about which there can be no 
 dispute are not often litigated, it does not often occur 
 that a court is warranted in taking the question wholly 
 from the jury. It is sometimes insisted that whenever 
 there is any evidence, even the slightest, that tends to 
 prove a fact from which the negligence or due care of the 
 plaintiff might be inferred, it should be submitted to the 
 jury ; ^ but the better rule is that there must be a substan- 
 tial basis for difference of opinion, or some reasonable 
 ground of dispute, or the court may refuse to entertain 
 it. In Cotton v. Wood ^ it is said : " To warrant a case 
 
 better understand the ordinary affairs the whole, to take their opinion, 
 
 of life, and can draw wiser and safer Furthermore, the sphere in which he 
 
 conclusions from admitted facts thus is able to rule without taking their 
 
 occurring than can one man, or a sin- opinion at all, should be continually 
 
 gle judge,'' citing Railroad Co. v. growing." It is not a question that 
 
 Stout, 17 Wall. 657; Greenleaf v. each of these views is sound, and it 
 
 Illinois, &c. R. R. Co., 29 Iowa, 36. may be admitted that the best judges 
 
 Judge Holmes, however, says, in The can administer justice as well, in nine 
 
 Common Law, 124: "A judge who cases in ten, without, as with a jury, or 
 
 has long sat at nisi prius ought gradu- better, for the matter of that, without 
 
 ally to acquire a fund of experience any reflection even upon a jury much 
 
 which enables him to represent the beyond the average of juries, 
 
 common sense of the community in * Cumberland, &c.. Iron Co. v. 
 
 ordinary instances, far better than an Scally, 27 Md. 589; Floriw. St. Louis, 
 
 average jury. He should be able to 3 Mo. App. 231. 
 
 lead and to instruct them in detail, « 8 C. B. (N. S.) 568. 
 even where he thinks it desirable, on 
 
f 162.] LAW AND FACT. 
 
 457 
 
 of this class being left to the jury it is not enough that 
 there be some evidence. A mere scintilla of evidence is 
 not sufficient, but there must be proof of well-defined 
 negligence." ^ This is also the rule in this country, and 
 one "which," says Judge Thompson, "ought to prevail 
 universally." * Among the cases in the reports in which 
 the court has passed upon the question of negligence as 
 matter of law, are those in which the conduct of the plaint- 
 iff was such as to shock the mind of an ordinarily pru- 
 dent man, aftid to evince a plain disregard of common 
 care and caution, as, for an example, in cases where it 
 appeared that the plaintiff took desperate chances in 
 crossingarailway track, or jumped from a rapidly moving 
 train, or lay down in a fit of intoxication upon a railway 
 track, or disobeyed plain rules enacted with a view to his 
 protection from some obvious danger, or crawled under 
 a train of cars, or rode upon a locomotive as a passenger, 
 subjects which I have considered at some length in chap- 
 ters V and VII.® In such cases as these a court may 
 well say that the plaintiff's plain and reckless disregard 
 of his own safety was negligence as matter of law. But 
 even here it is not to be overlooked, that cases may arise 
 in which, while there is no dispute as to the facts, there 
 is yet room for difference of opinion as to the inferences 
 and conclusions which may be drawn from those facts. 
 It is for the jury not only to find the facts but to make 
 the proper inferences and draw the conclusions from those 
 facts ; and when such a case arises the question of neg- 
 ligence is no longer one of law, even upon the undisputed 
 
 1 See, also, Toomey v. London, &c., ^ Thomp. on Neg. 1237, citmg Beau- 
 
 Ry. Co.,3C.B. (N. S.)i46; Cornman lieu v. Portland Co., 48 Me. 291; 
 
 -». Eastern Counties Ry. Co., 4 Hurl. Greenleaf v. Illinois,. &c., R. R. Co., 
 
 & N. 781, 786; Jewell V. Parr, 13 C. 29 Iowa, 22 ; Lehman v. Brooklyn, 29 
 
 B. 916; Jackson v. Metropolitan Ry. Barb. 234 ; cf. Wharton on Neg. § 421 
 
 Co., 3 App. Cas. 193. and note. 
 
 * q. V. in loco. 
 
458 
 
 LAW AND FACT. 
 
 [§ 165. 
 
 facts, but should be left to the jury — which we now pro- 
 ceed to consider. 
 
 § 163. Contributory negligence as a question of fact. 
 — In general it cannot be doubted that the question of 
 negligence is a question of fact and not of law.^ When- 
 ever there is" any doubt as to the facts, it is the province 
 of the jury to determine the question ; or whenever there 
 may reasonably be a difference of opinion as to the infer- 
 ences and conclusions from the facts, it is likewise a ques- 
 tion for the jury. It belongs to the jury, not only to weigh 
 the evidence and to find upon the questions of fact, but to 
 draw conclusions as well, alike from disputed and undis- 
 puted facts.^ Judge Cooley says,* " Negligence, as I under- 
 
 1 Detroit, &c., R. R. Co. v. Van 
 Steinburg, 17 Mich. 99, 118 (by Cool- 
 ey, J.) ; Trow v. Vermont, &c., R. R. 
 Co., 24 Vt. 497 ; S. C. 58 Am. Dec. 
 191 ; North Penn. R. R. Co. v. Heile- 
 man, 49 Penn. St. 60 ; Linfield v. Old 
 Colony, &c., R. R. Co., 10 Cush. 569; 
 Barton v. St. Louis, &c., R. R. Co., 
 52 Mo. 253; S. C. 14 Am. Rep. 418; 
 Keller v. New York, &c., R. R. Co., 
 24 How. Prac. 172 ; Huelsencamp v. 
 Citizen's Railway Co., 34 Mo. 54; 
 Fassett v. Roxbury, 55 Vt. 552 ; Kemp 
 V. Phillips, 55 Id. 69; Thompkins v. 
 Kanawha Board, 21 West Va. 224; 
 Louisville, &c., R. R. Co., v. Goetz, 
 79 Ky. 442 ; S. C. 42 Am. Rep. 227; 
 Claxton's Admr. v. Lexington, &c., 
 R. R. Co., 13 Bush. 636; Texas, &c., 
 R. R. Co. V. Herbeck, 60 Texas, 602 ; 
 Walsh V. Oregon R. R. and Trans. 
 Co., ID Oregon, 250; Ochsenbein v. 
 Shapley, 85 N. Y. 214; Palmer v. 
 Dearing, 93 Id. 7; Bucher v. New 
 York, &c., R. R. Co., 98 N. Y. 128; 
 Dudley v. Camden Ferry Co., 45 N. J. 
 Law, 368 ; Moebus v. Becker, 46 Id. 
 41 ; Ruland v. South Newmarket, 59 
 N. H. 291 ; Loewer v. City of Sedalia, 
 77 Mo. 431 ; Johnson v. Boston Tow- 
 Boat Co., 135 Mass 209; Shapleigh 
 V. Wyman, 134 Id. ii8; Randall v. 
 Conn. River R. R. Co., 132 Id. 269; 
 Tyler v. New York, &c., R. R. Co., 
 
 137 Id. 238 ; Bom v. Albany Plank 
 Road, loi Penn. St. 334; Longeneck- 
 er V. Pennsylvania R. R. Co., 105 Id. 
 328; County Commissioners v. Bur- 
 gess, 61 Md. 291 ; Osage City v. 
 Brown, 27 Kan. 74; Atchison, &c., 
 R. R. Co. V. Smith, 28 Id. 561 ; Hat- 
 field V. Chicago, &c., R. R. Co., 61 
 Iowa, 434 ; Houser v. Id., 60 Id. 230; 
 Slosson V. Burlington, &c., R. R. 
 Co., 60 Id. 215 ; Pennsylvania Co. v. 
 Dean, 92 Ind. 459; Ramsey w. Rush- 
 ville, 81 Id. 394; Wabash, &c., R. R. 
 Co. V. Shaciclet, 105 111. 364; Id. v. 
 Elliott, 98 Id. 481 ; Cook V. Western, 
 &c., R. R. Co., 69 Ga. 619; South, 
 &c., R. R. Co., V. Singleton, 66 Id. 
 252; Kansas, &c., R. R. Co., v. 
 Ward, 4 Colo. 30; McKeever v. Mar- 
 ket St. R. R. Co., S9 Cal. 294. 
 
 * Hoye V. Chicago, &c., R. R. Co., 
 Sup. Ct. of Wisconsin, March 31, 
 1885, 23 N. W. Rep. 14; Longeneck- 
 er V. Pennsylvania R. R. Co., 105 
 Penn. St. 328; Nelson v. Chicago, 
 &c., R. R. Co. 60 Wis. 324 ; Hill v. 
 City of Eon du Lac, 56 Id. 246 ; Sutton 
 V. Town of Wauwatosa, 29 Id. 21 ; 
 McKeever v. Market St. R. R. Co., 
 59 Cal. 294; Johnson v. Bruner, 61 
 Penn. St. 58, and the cases generally 
 cited supra. 
 
 8 Detroit, &c., R. R. Co. v. Van 
 Steinburg, 17 Mich. 99, n8. 
 
§ 163.] LAW AND FACT. 459 
 
 Stand it, consists in a want of that reasonable care which 
 would be exercised by a person of ordinary prudence, 
 under all the existing circumstances, in view of the prob- 
 able danger of injury. The injury is, therefore, one which 
 must take into consideration all these circumstances, and 
 it must measure the prudence of the parties' conduct 
 by a standard of behavior likely to have been adopted by 
 other persons of common prudence. Moreover, if the 
 danger depends at all upon the action of any other per- 
 son under a given set of circumstances, the prudence of 
 the party injured must be estimated in view of what he 
 had a right to expect from such other person, and he is 
 not to be considered blamable if the injury has resulted 
 from the action of another which he could not reasonably 
 have anticipated. Thus the problem is complicated by 
 the necessity of taking into account the two sets of cir- 
 cumstances affecting the conduct of different persons, and 
 is only ,to be satisfactorily solved by the jury placing 
 themselves in the position of the injured person and ex- 
 amining those circumstances as they then presented 
 themselves to him, and from that standpoint judging 
 whether he was guilty of negligence or not. It is evi- 
 dent that such a problem cannot usually be one upon 
 which the law can pronounce a definite sentence, and 
 that it must be left to the sifting and determination of a 
 
 In the ultimate determination of the question whether 
 the plaintiff was guilty of negligence, two separate 
 inquiries are involved. First. What was ordinary care 
 
 iTo the same effect see Briggs ?/. York, &c., R. R. Co., 27 Id. 393; 
 
 Taylor, 28 Vt. 183; North Pennsyl- Button i/. Frink, 51 Conn. 342; S. C 
 
 vania R. R. Co. v. Heileman, 49 Penn. 50 Am. Rep. 24 ; Ireland v. Oswego, 
 
 St. 60; Meesel v. Lynn, &c., R. R. &c., R. R. Co., 13 N. Y. 533: Oldfield 
 
 Co., 8 Allen, 234; Beers v. Housa- v. New York, &c., R. R. Co., 14 Id. 
 
 tonic R. R. Co.. 19 Conn. 566; Park 310; Ernst v. Hudson River, &c., K. 
 
 V. O'Brien, 23 Id. 347; Isbell v. New R. Co., 35 Id. 38. 
 
460 LAW AND FACT. [§163. 
 
 under the circumstances? and second. Did the con- 
 duct of the plaintiff come up to that standard ? With 
 respect to the standard of ordinary care it may be re- 
 marked that it is not always a fixed standard, and in many 
 cases it must first be found by the jury. In such a case 
 «ach of these inquiries is for the jury. They must assume 
 a standard, and then measure the plaintiff's conduct by 
 that standard. Whenever the standard is fixed, and when 
 the measure of duty is precisely defined by la^, then a 
 failure to attain that standard is negligence in law and a 
 matter with which a jury can properly have, nothing to 
 ■do. This is well illustrated by the rule which requires 
 one who crosses a railway track to be on his guard, and, 
 before attempting to cross, to look attentively up and 
 down the track. In the early periods of the development 
 of the law upon this point it was the rule that one, under 
 such circumstances, must exercise due care. In case of 
 an action for a negligent running down of the. plaintiff 
 at a crossing, under that rule, it was incumbent upon the 
 jury, first to set up the standard of ordinary care in their 
 own minds, and then to say whether or not the plaintiff 
 has come up to the standard. But as the law now stands 
 the standard is fixed. One must look up and down the 
 track ; anything short of that is negligence. So that, at 
 present, the jury, having the standard set up for them, 
 have only to say whether the plaintiff did look up and 
 down, and so bring himself within the protection of the 
 rule. When the law has outgrown, in any particular, the 
 featureless generality that one must exercise due care, 
 and has come to require, or prohibit, specific acts, and to 
 say that is negligence and this is carefulness, the function 
 of the jury is so far forth curtailed, and the tendency 
 plainly is to make the question of negligence, in this way, 
 .more and more a question of law, quoad hoc, and less and 
 less a question for the caprice of a jury. " When a case 
 
§ 163.] LAW AND FACT. 461 
 
 arises in which the standard of conduct, pure and simple, 
 is submitted to the jury, the explanation is plain. It is 
 that the court, not entertaining any clear views of public 
 policy applicable to the matter, derives the rule to be ap- 
 plied from daily experience, as it has been agreed that 
 the great body of the law of tort has been derived. But 
 the court further feels that it is not itself possessed of 
 sufficient practical experience to lay down the rule intel- 
 ligently. It conceives that twelve men taken from the 
 practical pkrt of the community can aid its judgment. 
 Therefore, it aids its conscience by taking the opinion of 
 the jury. But, supposing a state of facts often repeated 
 in practice, is it to be imagined that the court is to go on 
 leaving the standard to the jury forever ? Is it not mani- 
 fest, on the contrary, that if the jury is, on the whole, as 
 fair a tribunal as it is represented to be, the lesson which 
 can be got from that source will be learned ? Either the 
 court will find that the fair teaching of experience is that 
 the conduct complained of usually is, or is not, blame- 
 worthy, and therefore, unless explained, is, or is not, a 
 ground of liability ; or it will find the jury oscillating to 
 and fro, and will see the necessity of making up its mind 
 for itself. • • ' The trouble with many cases of neg- 
 ligence is that they are of a kind not frequently recurring, 
 so as to enable any given judge to profit by long experi- 
 ence with juries to lay down rules, and that the elements 
 are so complex that courts are glad to leave the whole 
 matter in a lump for the jury's determination."^ 
 
 It appears, therefore, on the one hand, that, as the 
 law is developed, and approaches more and more to the 
 fixedness and certitude of the exact sciences, outgrow- 
 ing the abstract and the general, and growing up to the 
 concrete and the particular, enriching itself by statutes 
 
 » The Common Law, by O. W. Holmes, Jr., pp. 123, 129. 
 
462 LAW AND FACT. [§ 1 63, 
 
 and judicial decisions, and thereby settling and deter- 
 mining point after point in the law of negligence, the 
 function of the jury in respect of the standard of conduct 
 is, in a corresponding degree, curtailed ; while, on the 
 other hand, in the very nature of things, and by reason 
 of the essential variety and complexity of the cases, that, 
 whatever be the standard of conduct, must continue 
 forever to perplex the courts, the function of the jury in 
 respect of the particular facts of each particular case — 
 that is, the function of the jury in measuring individual 
 conduct by the juridical yardstick, and so determining 
 for each plaintiff and defendant whether his conduct is, 
 or is not, up to the standard of ordinary care under the 
 circumstances, can never be curtailed, but, however fixed 
 the standard, must forever remain. 
 
GENERAL INDEX. 
 
GENERAL INDEX. 
 
 [References are to pages.] 
 
 ACCIDENT, mevitable, what is, 38. 
 
 no action for consequences of, 38. 
 insurance, when plaintiff's negligence is a defense in action 
 upon a policy of, 401, 402. 
 ADMIRALTY, rule as to damages in cases of collision in the, gen- 
 erally, 403-407. 
 disregarded in a court of common law, 407. 
 Lord Stowell's statement of, 404. 
 
 statement of, by Mr. Rothery, Registrar of the Admiral- 
 ty in London, 405, 406, n. 
 ADMISSIONS of contributory negligence by a plaintiff immediately 
 upon the happening of the accident, not conclusive 
 evidence, 433. 
 AGENT, master may act through an, generally, 358. 
 
 in respect of the care of machinery, etc., 358, 359. 
 negligence of an, imputed to the plaintiff, 106-120. 
 when servant deemed master's, 331. 
 
 test whether one is a mere servant, or the agent and rep- 
 resentative of the master, 333. 
 the rule illustrated, 332. 
 parent not the child's, in actions where it is attempted to 
 impute parent's negligence to a child, 134, 135. 
 AGGRAVATION OF THE INJURY, not sufficient as a defense 
 that plaintiff's acts contributed merely to the, 36. 
 contributing to a breach in a fence is contributory neg- 
 ligence when, 237. 
 ALABAMA, comparative negligence, rule of, denied in, 81. 
 
 negligence of parent not imputed to an infant plaintiff, in, 
 
 137- 
 fences, and cattle, at large, in, 229, 239. 
 
 burden of proof in, 431, 448. 
 30 
 
466 GENERAL INDEX, 
 
 ALDERSON, BARON, definition of negligence by, 4. 
 ALIGHTING FROM MOVING railway trains, 156. 
 
 street cars, 302. 
 ALTER EGO, when the servant is to be deemed the master's, 313, 
 
 331, 333- 
 ANIMALS, injury by, 57, 420, n. 
 
 trespassing, injury to, 57, 224, 420, n. 
 
 runaway team, injury to, by reason of negligence of plaint- 
 iff's servant, 107. 
 
 negligence of carrier imputed to the owner of, in case of in- 
 jury during transportation, 112, 113. 
 
 dogs, damages by, 145, 274. 
 
 injury to, 132, «, 213, 214, n. 
 
 trespassing upon railway tracks, 224, 238, 240, 242. 
 
 permitting, to run at large is negligence, when, 226, 228, 
 242. 
 
 turning stock out to graze, though negligence, is remote and 
 not proximate cause of injury, when, 227. 
 
 not contributory negligence to allow stock to run at large, 
 when, 228, 230-232. 
 
 not negligence to allow cattle to run at large upon one's own 
 land, 231, 232, 237, 241, 242. 
 
 killing of, by railways in consequence of failure to maintain 
 a fence, 236. 
 
 injury to " breechy " horse, by railway c ompany, because of 
 defective fence, 237. 
 
 escaping from lawful custody and sustaining an injury on 
 railway tracks, 239, 241. 
 
 blind horse, injury to a, suffered to wander about near rail- 
 road track, 239. 
 
 runaway horses injured upon the highway, 255. 
 
 injured upon defective highway, 262. 
 
 fast driving of horses upon the highway, 266, 269. 
 
 leaving horses untied and unattended in the street, 267, 268. 
 
 trespassing upon the highway, 266-268, 420, n. 
 
 permitting woman to drive horses upon the highway not 
 conclusive as to the plaintiff's negligence, 269, 270. 
 
 exhibitions of wild, not a nuisance, 268, 269. 
 
 plaintiff gored by a cow lawfully in the highway, 269. 
 
 hiring and driving horses for pleasure on Sunday, in New 
 England, 273, 273, «., 275, 1^6. 
 
GENERAL INDEX. 467 
 
 ANIMALS— continued. 
 
 horses injured upon ferry-boat, 295. 
 
 driven to break upon highway, 314. 
 oyster bed injury to, 418, 132. 
 miscellaneous cases affecting owners of, 420, n. 
 APPORTIONMENT OF DAMAGES in an action of negligence, 
 
 when there should be an, 73-75. 
 ARKANSAS, rule in Duggins v. Watson, as to the imputation of a 
 carrier's nejgligence to a shipper, 112-114, 119. 
 rule as to stock at large, in, 229, 230. 
 ARM, extending out of the window of a railway car, 164-17 1. 
 
 of a street car, 307, 308. 
 ASSAULT AND BATTERY, contributory negligence no defense 
 to an action for, 69, 70. 
 duty of street railway company to protect their passengers 
 from, 296, 297. 
 ATTORNEY AND CLIENT, the law of contributory negligence as 
 
 it affects actions between, 407-409. 
 AUSTIN, Mr. JOHN, definition of negligence by, 5. 
 AWNINGS, municipal corporation liable for injury to a passer-by 
 from defectively hung, 287. 
 
 BAGGAGE, contributory negligence of a passenger upon a railway 
 train in respect of, 184-186, 349, n. 
 notices stamped or printed on checks or tickets concerning, 
 
 185. 
 liability of Pullman Palace Car Co. for theft of passenger s, 
 
 185, n. 
 not negligent to look after, in a lawful manner, 186. 
 BAILMENT, connection of the law of, with that of negligence, i, 2. 
 to render carrier fully liable for a passenger's baggage there 
 must be a real, 185, 185, n. 
 BARON ALDERSON, definition of negligence by, 4. 
 BLACK, JEREMIAH S., statement of the general rule of contribu- 
 tory negligence by, 14. 
 BLINDNESS, how far a defense, 398-400, 149, «., 279. 
 BOARDING MOVING train of railway cars, 15S1 156." 
 
 street cars, 302, 303. 
 BUILDING, WOODEN, right of land-owner to erect a, upon his own 
 land, although exposed to danger from fire from 
 adjoining property, 419. 
 
468 GENERAL INDEX. 
 
 BURDEN OF PROOF, generally, 421-450. 
 
 general statement of the rule of, 421-425. 
 
 argument in favor of the rule that imposes, upon plaintiff, 
 
 421-425, 427-430. 433, 434, 447-45°- 
 upon the plaintiff, 425-430. 
 
 this rule not favored by text-writers and critics, 427, 
 
 428, 434. 
 defendant, 430-433. 
 when the plaintiff's own case raises a presumption of negH- 
 gence on his part, the burden is upon him to disprove 
 it, 432, 438. 
 
 the rule in New York upon the question of, 438-447. 
 BUTTERFIELD v. FORRESTER, the statement of the rule in, 
 and the opinion of Lord EUenborough in full, 8, 9. 
 
 doctrine of, repudiated in the later case of Davies v. Mann, 
 10, II. 
 
 CALIFORNIA, negligence of parent imputed to an infant plaintiff 
 in, 125, 137. 
 fences, and cattle at large, in, 229. 
 
 right of land-owner to use and enjoy his property not quali- 
 fied by the presence of a railway track, in, 245. 
 not negligence to allow leaves and grass to accumulate upon 
 
 one's own land near a railway track, in, 248. 
 not a trespass to walk upon the track of a street railway, in, 
 
 299. 
 statutory modification of the rule that exempts a master 
 from liability to one servant for the negligence of an- 
 other servant, in, 379. 
 burden of proof in, 431, 448. 
 CAMPBELL, LORD, contributory negligence of the decedent in 
 actions brought under the act of (9 and 10 Vict, 
 ch. 93), 64, 65. 
 imputed contributory negligence of parent in actions for 
 
 death of infant under the act of, 138, 139. 
 contract releasing employer from liability under a statute 
 will bar an action under the act of, 384, 385. 
 CARE. S^ Ordinary Care. 
 CAUSAL CONlteCTION, distinction between, and the negligence 
 
 of the plaintiff, 34-37- 
 CAYLE'S CASE, the learning in, 412, 413. 
 
 inn-keeper liable for the safety of the goods of his guest at 
 common law, 412. 
 
GENERAL INDEX. 469 
 
 CHANCE, THE MATHEMATICAL, against a plaintiff in respect 
 of his own freedom from negligence, 383, 423, 427, 
 428, 430, 437. 
 CHICAGO, MILWAUKEE & ST. PAUL R. R. CO. v. ROSS, the 
 latest utterance of the Supreme Court of the 
 United States upon the question who is a fellow- 
 servant, in the case of, 335. 
 the case of, considered, 335-338. 
 CHILDREN, contributory negligence not to be imputed to one who 
 runs a risk in an effort to save the life of, 45. 
 are non sui juris, when, 120, 121. 
 the New York rule of imputed contributory negligence in 
 
 actions by or on behalf of, 122-125. 
 the negligence of the parent to be imputed to, when, 122- 
 
 145- 
 the case of Hartfield v. Roper as defining the rights of, 122. 
 the case criticised, 132. 
 
 the position taken in Hartfield v. Roper modified and dis- 
 tinguished, 125. 
 not to be held to excuse either gross negligence or will- 
 ful infliction of injury to, 128. 
 in actions by or on behalf of, there must have been a breach 
 
 of duty, not merely some one's child hurt, 129. 
 negligence of parent imputable to, upon the theory of iden- 
 tity, 130, 131. 
 negligence of parent ought not to be imputed to — the rule of 
 
 Hartfield v. Roper denied, 136, 137. 
 negligence of the parent a defense when the action is for the 
 parent's benefit, 137-139- 
 and in an action for the death of an infant under Lord 
 Campbell's act, the negligence of the infant, of 
 course, a defense, 138, 139. 
 the rule of imputability in these cases modified by reason of 
 the poverty or destitution of the plaintiff or its parents, 
 
 139-144- 
 ordinary care in, what is, 144, 145- 
 as trespassers, 145-149. 
 
 the English rule, 146, 147. 
 
 generally followed in the United States, 148, 149. 
 Lynch v. Nurdin, 145, 146. 
 
 generally followed in the United States, 148. 
 
 denied only in Massachusetts, 149. 
 
470 GENERAL INDEX. 
 
 CBILDRE'M— continued. 
 
 what is contributory negligence on the part of parents in ac- 
 tions by, or on behalf of, 150, 151. 
 leaving railway train while in motion by the direction of the 
 
 train-men, 158, n. 
 negro boy riding upon pilot of a locomotive by direction of 
 
 the train-men, 163, n. 
 as trespassers on railway property, 211. 
 playing on turn-tables, 212-217. 
 attempting to cross a train of cars standing upon a street , 
 
 crossing, 222. 
 damages for grief at loss of, not recoverable, 259, «. 
 playing upon the highway, 265, 288. 
 
 is lawful, 288, 291. 
 
 is not lawful, 289, 290. 
 one may lawfully visit his, upon Sunday, in various New 
 
 England States, 275. 
 may lawfully visit their parents upon Sunday in Pennsyl- 
 vania, 276, n. 
 one burdened with, is guilty of negligence in alighting from 
 
 a moving street car, 302. 
 right of a newsboy upon a street car, 308. 
 street car drivers and conductors may not carry, free, 309. 
 conductor compelling a mere lad to couple cars does not 
 
 render company liable, 348. 
 as employees, duties of employer to, 359. 
 upon what ground should they be held co-employees of 
 
 adults, 359, 360. 
 how far childhood is a defense in actions of negligence, 398, 
 
 399- 
 CITY. See Municipal Corporation. 
 CO-EMPLOYEE. See Co-Servant; Master and Servant. 
 COGGS V. BERNARD, the learning in, the foundation of the mod- 
 ern English law of negligence, 2, 18. 
 COLLATERAL VIOLATIONS OF LAW, not a defense in an ac- 
 tion of negligence, 35, 49-53. 
 no defense when the negligence of the defendant was willful, 
 
 SO- 
 a misapplication of the rule that collateral violations of law 
 
 are not a defense, 51, 52. 
 Sunday traveling purely a, and, in consequence, no proper 
 
 defense to an action of negligence, 186, 188, 189, 270^ 
 
 276. 
 
GENERAL INDEX. 
 
 471 
 
 COLLISION. See Admiralty; Railway Companies; Highway. 
 COLORADO, fences and cattle at large, in, 229. 
 
 burden of proof in, 432, 448. 
 COMMON CARRIER OF GOODS, privity in negligence between 
 shipper and, 108, 109, 118-120. 
 negligence of, when to be imputed to a shipper of goods, 
 1 18-120. 
 COMMON CARRIER OF PASSENGERS, negligence of, to be 
 imputed to a passenger, 108-114. 
 the English rule — Thorogood v. Bryan, 108-110. 
 
 how far the rule in the United States, 111-114. 
 negligence of, not to be imputed to a passenger, 114-118. 
 Thorogood v. Bryan denied in the United States, 114. 
 the true rule as to the imputability of a carrier's negligence 
 
 to a passenger or shipper, 119, 120. 
 are not insurers, 153, 294, 295. 
 railroad companies are, 153, 154. 
 ferry-men are, 294. 
 street railway companies are, 296. 
 common law liability of, limited by express contract, 179- 
 
 184. 
 cannot stipulate for exemption from responsibility for the 
 
 consequences of negligence, 180, 181. 
 contrary rule in England, 180. 
 " The Railway and Canal Traffic Act," 181. 
 the rule in New York upon this point, 182, 183. 
 Railroad Co. v. Lockwood, conclusion in, 181. 
 COMMON EMPLOYMENT, what is a, 329, 338, 339. 
 
 the essence of, is a common employer and payment from a 
 
 common fund, 329, 338. 
 the decisions not consistent, 339. 
 the influence of the Massachusetts decisions upon the rule 
 
 as to, 329. 
 illustrations, many cases collected, 339-343- 
 COMPARATIVE NEGLIGENCE, generally, 76-102. 
 the rule stated, 76, 77. 
 implies a comparison by degrees, 78. 
 origin of the rule of, an attempt to apply the doctrine of 
 
 Davies v. Mann, 79. 
 doctrine of, usually repudiated, 79, 80. 
 as held in Illinois, 81-90. 
 Galena & Chicago Union R. R. Co. v. Jacobs, 81, 82. 
 
472 GENERAL INDEX. 
 
 COMPARATIVE NEGLIGENCE— <:<7«A««^^. 
 
 Chief Justice Breese the father of the rule of, 85. 
 
 question of proximate and remote cause does not arise under 
 
 the rule of, 86. 
 arguments in favor of the rule of, 87-89. 
 as held in Kansas, 90-92. 
 denied in Kansas, 92, 
 as held in Georgia, 92-96. 
 origin of the rule of, in Georgia, 93, 94. 
 rather a rule in mitigation of damages than a rule of, 92, 95, 
 
 96. 
 attempt to make this rule square with the general doctrines 
 
 of contributory negligence, 94, 95. 
 the rule not settled in Georgia, 96. 
 as held in Tennessee, 97, 98. 
 not the same as the rule in Georgia, 97. 
 rather a qualification of the general rule of contributory- 
 negligence than a rule of, 97. 
 argument in favor of the Tennessee rule, 98, 99. 
 rule of, does not obtain in Kentucky, 99-102. 
 statement of the Kentucky rule, 99, 102. 
 statute in Kentucky giving primitive damages, 100. 
 the position of the Kentucky courts as to, not properly repre- 
 sented by text-writers, 99, 10 1, 102. 
 Louisville, &c., R. R. Co. v. Collins, how misinterpreted, 
 101. 
 CONFEDERATE STATES, an employee of a railway, transporting 
 munitions of war for, not entitled to an action of 
 negligence against the company, 51, 52. 
 this rule criticised, 52. 
 CONNECTICUT, negligence of a parent not imputed to an infant 
 plaintiff, in, 137. 
 rights and liabilities of an infant' trespasser, in, 148. 
 fences and cattle at large, in, 225, 235. 
 right of an owner of land to use and enjoy his property not 
 
 qualified by the presence of a railway track, in, 245. 
 municipal corporation in, when liable for injury to runaway 
 
 horse by reason of defective highway, 256. 
 burden of proof in, 426, 433, 447-449. 
 CONTRACT OF RELEASE, should an employee be allowed to 
 make a, with his employer, as to a statutory liabil- 
 ity of the employer, 383-385. 
 
GENERAL INDEX. 473 
 
 CONTRACT OF RELEASE— continued. 
 such contracts lawful, when, 383. 
 generally forbidden in the United States, 384, 385. 
 unlawful, when in consideration merely of the employment, 
 385, 16, n. 
 
 from a common law liability, if for a consideration, generally 
 
 valid, 16, 17. 
 may be implied as well as express, 16. 
 "' CONTRIBUTORY," the adjective most used to define a plaintiff's 
 negligence, 61. 
 a better word than " concur " or " cooperate," 61. 
 CONTRIBUTORY NEGLIGENCE, origin of the law of, i. 
 definition of, 7. 
 two necessary elements in, 7. 
 
 law of, first announced in Butterfield v. Forrester, 8, 9. 
 the doctrine of, repudiated in Davies v. Mann, 10, 11. 
 reasons for the rule of, 11-13- 
 general statement of the rule of, 14, 15, 37. 
 for the purpose of a defense there must be, not merely negli- 
 gence, but real, 27, 35. 
 may take the form of a trespass, 56, 57. 
 may be either prior or subsequent to, or contemporaneous 
 
 with, the negligence of the defendant, 21, 60, 62, 63. 
 there must be negligence on the part of the defendant, or 
 
 there can be no, 69. 
 comparative negligence not a qualification of the rule of, 
 
 77- 
 sometimes a question of law, 454. 
 usually a question of fact, 458. 
 mere scintilla of evidence not enough to .render, a question 
 
 of fact, 457. 
 standard of conduct vari3,ble, 460, 461. 
 CORPORATIONS, should there be one rule applicable to, and 
 another less stringent one affecting other employers 
 of labor in respect of the obligation of a principal 
 for the acts of his agent, 334, 335. 
 See Municipal Corporations. 
 CO-SERVANT, master not liable to a servant for an injury from the 
 negligence of a, 320. 
 this rule an exception to the rule of Respondeat Superior, 
 
 315- 
 origin of the rule in the case of Priestley v. Fowler, 315, 
 321. 
 
474 GENERAL INDEX. 
 
 CO-SE^YKiHT— continued. 
 
 later English cases following Priestley v. Fowler, 316, 317. 
 
 the rule in the United States — Murray v. South Carolina R. 
 R. Co., 317-319. 
 
 Farwell v. Boston & Worcester R. R. Co., 319. 
 
 the reason of the rule not satisfactory, 321-324. 
 as set forth by Chief Justice Shaw, 321. 
 
 objections to the rule, 322-324. 
 
 the statutory modification of the rule in Kentucky as to, 
 324-326. 
 
 Louisville, &c., R. R. Co. v. Collins, 325, 326. 
 
 the Illinois rule as to, 327. 
 
 the Tennessee rule as to, 327. 
 
 who are, 328-330, 339-343- 
 
 when servants of the same master are not, 331. 
 
 this distinction illustrated, 332. 
 
 test whether one is a, or the representative of the master, 
 333. 334' 
 
 should there be one rule in this respect applicable to corpo- 
 rations and another less stringent one applicable to 
 other employers of labor, 334, 335. 
 
 the United States Supreme Court rule, 335-338. 
 
 servants of different masters not, 343, 344. 
 
 servants of an independent contractor are not, 344, 345. 
 this rule stated and defended, 344-346. 
 
 servants of different railways having running connections 
 not, 346. 
 
 when volunteers are and when they are not, 347-349- 
 
 when the master is liable to one servant for an injury result- 
 ing from the carelessness of a, 349, 350. 
 COUPLING RAILWAY CARS, injuries to train-men in, generally, 
 364-366. 
 
 not negligence to engage in a dangerous occupation, 364. 
 
 negligence in, will prevent recovery, 365. 
 
 xa general no recovery for injury sustained in, in the absence 
 of wantonness on the part of the company, 366. 
 
 DAKOTA, statutory modification of the rule that exempts a master 
 from liability to one servant for the negligence of 
 another servant, in, 379. 
 
GENERAL INDEX. 475 
 
 DAMAGES, express or implied waiver of a right to recover, 16, 17. 
 must be a proximate connection, or concatenation, between 
 the wrong of the defendant and the resulting, or the 
 action will not lie, 32, 33, 33, n. 
 the true rule for the recovery of, in actions of negligence, 
 
 37- 
 from inevitable accident are damnum absque injuria, 38, 39, 
 
 129. 
 when recoverable by plaintiff guilty of a collateral violation 
 
 of law at the time of the happening of the accident, 49, 
 
 SO-S3- 
 when recoverable by a trespasser, 53-58. 
 not recoverable when the trespasser brings the mischief upon 
 
 himself, 57. 
 under Lord Campbell's act, 64, 65, 384, 385. 
 statute in Kentucky providing for the recovery of punitive, 
 
 in certain cases, 70, 100, 324, 325. 
 mitigation and apportionment of, 73-75. 
 as held in Georgia, 75, 92-96, 327. 
 Tennessee, 75, 97-99, 327. 
 Illinois, 81-90. 
 a question of continuing, 259, n. 
 DAMNUM ABSQUE INJURIA, injury from inevitable acci- 
 dent is, 38, 39, 129. 
 DARKIE, stealing chickens by a, 419, 420. 
 DA VIES V. MANN, the case of, 10, 11. 
 
 tendency of, to unsettle the law of contributory negligence, 
 
 II, 28, 29, 31,58, 62,, 126, 419. 
 Judge Thompson's " discovery clause" applied to, 58, 59. 
 should be disregarded, 11, 31, 32. 
 
 the case of, criticised, 16, 29, 30, 58, 99, 132, 135, 418, 419. 
 is authority for what, 29. 
 leads to the rule of comparative negligence, 16, 31, 75, 79, 
 
 93, 94- 
 DEAFNESS, as a defense, 204, 398, 399. 
 DEATH, injuries causing. 
 
 See Lord Campbell's Act. 
 DEFECTIVE TOOLS, machinery, &c. 
 
 See Master and Servant; Master; Servant. 
 DEFECTIVE VEHICLES. See Highways. 
 DEGREES OF CARE. See Ordinary Care. 
 DEGREES OF NEGLIGENCE. See Negligence. 
 
476 GENERAL INDEX. 
 
 DELAWARE, fences, and cattle at large, in, 225. 
 
 right of an owner of land to use and enjoy his property not 
 qualified by the presence of a railway track, in, 245. 
 " DISCOVERY CLAUSE," Judge Thompson's, as an attempt to ex- 
 plain and make sense out of the case of Davies v. 
 Mann, 58, 59. 
 DOGS, injury by, or to, 132, «., 145, 213, 214, n., 274.. 
 
 See Animals. 
 DUTY, discharge of a dangerous, not in se negligence, 38, 39, 40, 45- 
 48, 49, 364, 365, 366, 370. 
 must be a breach of, in order to create a liability in actions 
 for injury to irresponsible persons, or persons non sui 
 juris, 129, 130, 131. 
 
 ELLENBOROUGH, LORD, opinion of, in Butterfield v. Forres- 
 ter, 8, 9. 
 a supposed authority for the rule that the burden of proof in 
 actions of negligence is upon the plaintiff, 422. 
 EMBANKMENT. See Highway. 
 EMPLOYEE. See Servant. 
 
 EMPLOYER. See Master and Servant ; Master. 
 EMPLOYERS' LIABILITY BILL, 43 and 44 Vict. ch. 42. 
 
 See Master and Servant. 
 EVIDENCE, to prove intoxication, 397. 
 
 opinion, competent to prove intoxication, 397. 
 that plaintiff was intoxicated should not be excluded, 397. 
 admissions of contributory negligence not conclusive, 433. 
 mere scintilla of, not sufficient to make negligence a question 
 
 of fact, 457. 
 being on the wrong side of the road '\^ prima facie, of negli- 
 gence, 292. 
 being on the right side of the road is not conclusive, of due 
 
 care, 293. 
 intoxication not conclusive, of negligence, 204, 391, 392. 
 EXCAVATIONS. See Highway. 
 
 FACT. See Law and Fact. 
 
 FARWELL V. BOSTON & WORCESTER R. R. CO., Judge 
 
 Shaw's opinion in the case of, 319. 
 FAULT OF THE DEFENDANT, plaintiff's failure to anticipate 
 
 the, not negligence, 40, 41. 
 a qualification of that rule, 41, 42. 
 
GENERAL INDEX. 477 
 
 FEAR PRODUCED BY DEFENDANT'S CONDUCT, plaintiff 
 acting erroneously under impulse of, not negligence, 
 42, 43. 44, 45- 
 FELLOW-SERVANT. See Co-Servant; Servant; Master and 
 
 Servant. 
 FENCES, at common law, 224. 
 
 how far, and in what States the common law rule as to, ob- 
 tains in the United States, 224, 225, 226. 
 a modified rule as to, in some jurisdictions, 227. 
 statutes concerning, 228. 
 the American as distinguished from the common law rule as 
 
 to, 228, 229. 
 in what States this rule obtains, 229, 230. 
 duty of railway companies as to, 228, 230, 232, 233, 234. 
 required of railways by statutes in most States and in Eng- 
 land, 234, 235. 
 in what States of the Union such statutes are in force, 234, 
 
 23s, 236. 
 character of such statutes, 236. 
 liability of railway company for failure to erect and maintain, 
 
 236, 237. 
 
 duty of the owner of land adjoining railway track as to, 
 
 237, 238. 
 
 inconsistency in the New York decisions as to, 239, 240, 241. 
 no failure of plaintiff to restrain cattle will excuse railway 
 
 for a failure to maintain statutory, 241, 242. 
 the New England rule upon this point, 242. 
 FERRYS, ferry-men are common carriers, 294. 
 
 are not insurers of the safety of passengers, nor of property 
 
 not fully surrendered to them for transportation, 295. 
 what acts have been held negligent on the part of passengers 
 on, 295. 
 FIRE, negligent communication of, by railway companies, 243-252. 
 duty of railways in respect of the communication of, 243. 
 locomotives not nuisances in respect of the communication 
 
 of, 243. 
 duty of owner of land adjoining a railway track in respect 
 of, 244, 245. 
 
 not responsible for the mere condition of his prem- 
 ises, 244-246. 
 where this rule prevails, 245, 246. 
 where it is doubted or denied, 246. 
 statutes affecting, 247. 
 
478 GENERAL INDEX, 
 
 FIRE — continued. 
 
 particular instances of negligence or care by adjoining land 
 owner in respect of the condition of his premises, 247, 
 248. 
 duty of property owner to put out a fire when possible, 62, 
 
 63, 249. 
 must act prudently in presence of danger from, 63, 249. 
 when fire spreads from one man's property to another, 
 
 whether the damage is too remote, 249. 
 burning oil, from exploded tanks on a railway train, floating 
 down a stream and setting fire to property, 250, 251, 252. 
 antinomous rules in New Jersey and Pennsylvania upon this 
 point, 250, 251. 
 FIRE INSURANCE, negligence as a defense in actions upon poli- 
 cies of, 400, 401. 
 FIREWORKS, injuries from negligence in making a display of, 268, 
 269, 416, 417. 
 not negligence to look at, 417. 
 "FLYING SWITCH," injuries from a running, or, 223. 
 
 practice of making, condemned, 223. 
 FRAUD, when a collateral violation of law amounts to a, it is a de- 
 fense to an action of negligence, when, 50, 51. 
 FREE PASSENGERS, liability of carrier for injuries to, 176, 178, 
 
 308, 309- 
 what is a, 177, 178, 184, 308. 
 one riding upon a drover's pass is not a, 181, 182. 
 liability of carrier for injuries to, limited by contract, 179- 
 
 184. 
 carrier may not stipulate for freedom from liability for the 
 
 result of negligence, 180, 181. 
 contrary rule in New York, 182, 183. 
 
 employees of the carrier have no authority to constitute any 
 one a, 177, 309. 
 FRENCH LAW, liability of an employer to an employee under the, 
 388. 
 Lord Stowell's rules for the division of damages in cases of 
 collision in the Admiralty, same as the, 404. 
 
 GAMES, playing at, upon the highways, generally a trespass, 265, 266. 
 no action against a municipal corporation for injuries sus- 
 tained from defect in the highway by one using i t for 
 the purpose of playing at, 266. 
 
GENERAL INDEX. 
 
 479 
 
 GAMES — continued. 
 
 children may use the highway to play at, 288, 289. 
 
 this rule denied, 289, 290. 
 the better rule a compromise, 291, 292. 
 remedy for injuries sustained in playing at, 419. 
 GAS COMPANIES, liability of, for injuries arising from explosions 
 of gas caused by defective pipe, 105. 
 negligence of parent imputed to child injured by escaping 
 
 gas, in an action against, 131. 
 liability of, for injury to one who assists workmen in lay- 
 ing a pipe in the street, gratuitously, but at the request 
 of the workmen, 349, «. 
 
 GENERAL RULE AS TO CONTRIBUTORY NEGLIGENCE, 
 stated, 14, 37. 
 
 GEORGIA, a judgment of the Supreme Court of, in reconstruction 
 times, 51, 52. 
 the rule of contributory negligence in, somewhat equiva- 
 lent to a rule in mitigation of damages, 75, 79,92, 95, 96. 
 the rule in, considered at length, 92-96. 
 
 an attempt to apply the rule as declared in Davies 
 
 V. Mann, 94, 95. 
 not settled, 96. 
 fences, and cattle at large, in, 229. 
 
 right of an owner of land to use and enjoy his property not 
 
 qualified by the presence of a railway track, in, 245, 246. 
 
 municipal corporation in, when liable for injury to runaway 
 
 horses by reason of defective highways, 256. 
 negligence of freight train conductor in coupling cars in, 365. 
 statutory modification of the r>ule that exempts a master from 
 liability to one servant for the negligence of another ser- 
 vant, in, 379. 
 intoxication as a defense under the code of, 205, 392. 
 burden of proof in, 431, 448. 
 GLADSTONE, THE, BILL, which was enacted as " The Employers' 
 Liability Act," (43 and 44 Vict. ch. 42), 377, 378, 
 383, 384. 
 GROSS NEGLIGENCE. See Negligence. 
 
 GUARANTOR, an employer not a, as to the safety and sufficiency of 
 his machinery, &c., or the capacity of his employ- 
 ees, 355, 358. 
 HARTFIELD v. ROPER, the learning in the case of, the founda- 
 tion of the rule which imputes the negligence of a 
 parent to an infant plaintiff, 122-128. 
 
480 GENERAL INDEX. 
 
 HARTFIELD v. 'R.OV'EK— continued. 
 the rule modified, 125-132. 
 criticised, 132-136. 
 denied, 136, 137. 
 contrasted with the cases of Davies v. Mann and Mayor of 
 Colchester v. Brooke, 418, 419. 
 HIGHWAYS, liability of municipal corporations for injuries from de- 
 fective, 253, 254. 
 this liability denied, where, 254. 
 
 liability of municipal corporations for injuries from obstruc- 
 tions in, 255. 
 
 for injuries to runaway horses from defects or ob- 
 structions, 255. 
 a modified rule, 256. 
 contributory negligence of traveler on, 256, 259. 
 not negligence in se, to use a defective, 257. 
 mere knowledge of defects in, not conclusive evidence of 
 
 negligence, 258. 
 a contrary view, 258. 
 duty of an adjoining land owner with respect of excavations 
 
 near, or upon, a, 259, 260, 263. 
 corresponding duty of pedestrian with respect to such ex- 
 cavations, 260. 
 right of pedestrians in the road or carriage way of a, 260, 
 
 261, 278, 279. 
 right to deviate from, when, 261, 263, 264. 
 right of pedestrians to cross a, at any point, 261, 278, 279. 
 duty of the municipal corporation with reference to em- 
 bankments upon, or near, a, 262. 
 no duty upon an owner of land adjoining, a, to make it safe 
 
 for trespassers, 263. 
 but one must not dig pitfalls upon a, 263. 
 what are, and what are not, lawful openings in pavements 
 
 upon a, 264, 265. 
 trespass upon the, what is a, 265, 266. 
 
 what is not a, 266, 267. 
 leaving horses untied and unattended upon a, 267, 268. 
 animals escaping from inclosures and trespassing upon a, 
 
 268. 
 animals lawfully at large upon a, 269. 
 
 the use of defective vehicles or harness upon the, how far a 
 defense to an action against the town, 269. 
 
GENERAL INDEX. 481 
 
 BIGWNKY?,— continued. 
 
 fast driving upon the, 266, 269. 
 
 woman driving upon the, 269, 270. 
 
 driving or walking for pleasure or mere business on Sunday, 
 
 on the, 270-278. 
 Sunday, at common law, 270. 
 
 by canons of the Church, 271. 
 by statute, 271. 
 
 in New England, 271. 
 no liability on the part of the town for an injury upon the, 
 except when one travels upon an errand of " necessity 
 or charity," 272. 
 this rule illustrated, 272-275. 
 
 prevails only in Massachusetts, Maine and Vermont 
 
 274. 275. 
 denied elsewhere, 276-278. 
 
 See Railway Companies; Sunday Traveling. 
 pedestrian must not take desperate chances in crossing a, 
 
 crowded with vehicles, 279. 
 not negligence in se for a woman to wear a sun-bonnet in 
 
 crossing a, 279. 
 icy sidewalks in a, 280-286- 
 duty of the municipality with reference to ice and snow in 
 
 the, 280, 281. 
 ice and snow not per se defects in a, 282. 
 mere slipperiness not a defect in, 282. 
 duty of the traveler as to ice and snow in the, 283, 284. 
 duty of property owner with respect of accumulations of 
 
 snow and ice upon the, adjoining his premises, 284.. 
 validity of ordinances requiring occupants of houses upon, 
 
 to clear away snow, 285. 
 summary of the law as to icy sidewalks, 285, 286. 
 something falling into the, and injuring a passer-by, 286-288. 
 duty of property owners in respect of things falling, 286, 
 
 287. 
 injuries from signs falling upon a, 287. 
 awnings falling upon a, 287. 
 
 barrels falling from a window of a warehouse, 287, 
 288. 
 injuries to children upon the, 288-292. 
 right of children to play in the, 288, 289. 
 this right denied, 290. 
 31 
 
482 GENERAL INDEX. 
 
 "HIGW^KY^— continued. 
 
 the better rule stated, 291, 292. 
 collisions upon the, 292, 293, 294. 
 the law of the road, 292, 293. 
 
 does not apply to persons on horseback, 294. 
 one may be on the wrong side of, the road and yet be free 
 
 from the imputation of negligence, 292. 
 one may be on the right side and yet be in fault, 293. 
 See Street Railway Companies. 
 HOLT, LORD, opinion of, in Coggs v. Bernard, the foundation of 
 
 the modern English law of negligence, 2. 
 HORSES. See Animals. 
 HORSE CARS, anglice, STREET CARS, q. v. 
 HUMAN LIFE, negligence not to be imputed to an effort to save, 
 
 45-47- 
 HUSBAND AND WIFE, negligence of a husband to be imputed to 
 his wife, when, 113, 114, 
 degree of care required of a woman, 24, n., 270. 
 negligence of husband, when not to be imputed to his wife, 
 284. 
 IDIOTS AND LUNATICS are non sui Juris, 120. 
 
 application of the law of contributory negligence to, 120, 
 
 39- 
 ICY SIDEWALKS. See Highways. 
 IGNORANCE OF DANGER. See Knowledge. 
 ILLEGAL ACT, plaintiff doing an, not a defense, when, 49, 50, 56. 
 that plaintiif was doing an, no defense to an action for wilful 
 
 infliction of injury, 50. 
 ILLINOIS, the rule of comparative negligence, in, 75-79, 81-90. 
 
 privity in negligence between passenger and carrier, the rule 
 
 in, 116. 
 negligence of parent imputed to an infant plaintiff, in, 125, 
 
 137- 
 to ride on platform of railway car, when there is room in- 
 side, is negligence per se, in, 159. 
 slight intoxication not contributory negligence, in, 204, 205. 
 walking upon a railway track, in, 219. 
 fences, and cattle at large, in, 229, 235. 
 grass and leaves allowed to accumulate upon one's own land 
 
 near a railway track, in, 244, 247. 
 an employer's liability to one servant for a negligent injury 
 
 by another servant, in, 327. 
 
GENERAL INDEX. 
 
 483 
 
 ILLINOIS — continued. 
 
 duty of railway companies as to the construction of the coup- 
 
 lings of cars, in, 366. 
 burden of proof in, 426, 448. 
 
 See Comparative Negligence. 
 IMPUTED CONTRIBUTORY NEGLIGENCE, generally, 103- 
 151- 
 a general statement of the rule of, 103-105. 
 contributory negligence of a mere stranger or joint tort feasor, 
 
 not to be imputed to a plaintiff, 104, 105. 
 negligence of an agent properly imputed to a principal, io6- 
 
 io8. 
 privity in negligence between carrier and passenger, 108-118. 
 
 between carrier and shipper, 112, 118-120. 
 the English rule in Thorogood v. Bryan, 108-ni. 
 that rule criticised, no, 116, 117. 
 how far it is the rule in the United States, ni-114. 
 denied in the United States — the American as distinguished 
 from the English rule, which refuses to impute the neg- 
 ligence of a carrier to his passenger, 114-118. 
 the negligence of one driving a private vehicle imputed to 
 
 one riding with him, 113. 
 husband's negligence imputed to his wife, when, 113, 114. 
 the better rule as to imputability in these cases, 119, 120. 
 in the case of persons non sui juris, 120. 
 who are non sui juris, 120-122. 
 negligence of parent or custodian imputed to an infant 
 
 plaintiff, 122-144. 
 the doctrine of Hartfield v- Roper, 122. 
 where this case is followed, 125. 
 the doctrine modified, 125-128. 
 
 not to be construed to excuse gross negligence or wilful 
 
 injury, 128. 
 nor to prevent an action by a plaintiff not itself guilty 
 of any default, 127, 128. 
 the case of Hartfield v. Roper criticised, 132-136. 
 the imputability of negligence in these cases denied, 136, 
 
 137- 
 when the action is for the parent's own benefit, 137-139. 
 the matter of a parent's negligence as imputed to a child, 
 how affected by the poverty or destitution of the parent, 
 
 139-144. 
 
484 GENERAL INDEX. 
 
 IMPUTED CONTRIBUTORY NEGl^lGEliCE— continued. 
 what is ordinary care in a child, 144. 
 children as trespassers, 145-149. 
 
 various acts or omissions of parents held negligent, and to 
 be imputed to infant plaintiffs, 150, 151. 
 
 See Ordinary Care; Children. 
 INDIANA, doctrine of comparative negligence denied, in, 80. 
 
 ijegligence of parent imputed to an infant plaintiff, in, 125, 
 
 137- 
 fences, and cattle at large, in, 225, 235, 236. 
 right of an owner of land to use and enjoy his property, not 
 
 qualified by the presence of a railway track, in, 246-248. 
 injuries to runaway horses by reason of defective highways, 
 
 in, 256. 
 not negligent to run great risks to save human life, in, 47, 
 
 374- 
 a contrary view in an early case, in, 47. 
 burden of proof in, 426, 448. 
 INEVITABLE ACCIDENT. &« Accident. 
 INFANTS. See Children. 
 INJURIES RESULTING IN DEATH. See Lord Campbell's 
 
 Act. 
 INNKEEPER AND GUEST, 411-416. 
 
 innkeeper at common law an insurer of the goods of his 
 
 guest, 411, 412. 
 the ancient learning in Cayle's Case, 412, 413. 
 innkeeper when liable for the robbery of his guest, 412- 
 
 414. 
 duty of the guest to lock his door, 412-414. 
 not necessarily negligent not to lock the door, 414, 415. 
 guest falling through an elevator shaft, 415. 
 contributory negligence of the guest, 414-416. 
 law of, not applicable to a clothier, 416. 
 See Cayle's Case. 
 INSURANCE, negligence as a defense in actions upon policies of, 
 
 400-402. 
 INTOXICATION, as a defense in actions of negligence, 204, 205, 
 390-398. 
 slight, not contributory negligence, 204. 
 of street car passengers, 298. 
 
 an absolute defense in certain cases, under the Georgia Code, 
 205) 392. 
 
GENERAL INDEX. 485 
 
 INTOXlCATlOti—co/itinueci. 
 
 duty of a municipal corporation toward intoxicated persons, 
 
 39°. 391- 
 evidence, but not conclusive evidence, of negligence, 204, 
 
 390-392. 
 on the part of a trespasser is per se negligence, 205, 392- 
 
 394- 
 presumption in favor of sobriety, 394-396. 
 not an excuse for the infliction of a wanton injury upon the 
 
 person intoxicated, 396, 397. 
 purchasing and drinking liquor not contributory negligence, 
 
 397- 
 
 See Evidence; Railway Companies. 
 INVITATION TO ENTER ANOTHER'S PREMISES, implied 
 as to business houses, 55. 
 duty of the occupant of property in respect of this invitation 
 
 to keep the premises in a safe condition, 54, 55. 
 no duty in this respect toward mere trespassers, 54, 56. 
 distinction between, and license, 56. 
 IOWA, no recovery in, when negligence of plaintiff is, in whole or in 
 part, a proximate cause of the injury, 27. 
 doctrine of comparative negligence denied, in, 80. 
 negligence of driver of a private vehicle imputed to one rid- 
 ing with him, in, 113, 114. 
 duty of pedestrian upon approaching a railway crossing 
 
 where the view is obstructed, in, 203. 
 fences, and cattle at large,, in, 229, 230, 235, 239. 
 right of an owner of land to use and enjoy his property not 
 qualified by the presence of a railway track, in, 246, 
 247. 
 statutory modification of the rule that exempts a master 
 from liability to one servant for the negligence of an- 
 other servant, in, 379, 384. 
 negligence as a defense in an action upon a policy of acci- 
 dent insurance, in, 401, 402. 
 burden of proof in, 426, 448. 
 IRISH LAW, liability of an employer to an employee under the, 
 388. 
 
 JOINT TORTFEASORS, the contributory negligence of third 
 persons who are mere, not a defense in actions of 
 negligence, 105. 
 
486 GENERAL INDEX. 
 
 JUDICIUM RUSTICORUM, the rule in the Admiralty as to 
 damages in cases of collision sometimes known as, 
 405- 
 
 KLANSAS, rule of comparative negligence, in, 75, 79, 87, 90-92. 
 denied in, 81, 92. 
 negligence of a parent imputed to an infant plaintiff, in, 125, 
 
 137- 
 fences, and cattle at large, in, 226, 235. 
 right of an owner of land to use and enjoy his property not 
 
 qualified by the presence of a railway track, in, 245. 
 injury upon a highway in, from collision with runaway team, 
 
 293- 
 statutory modification of the rule that exempts a master 
 from liability to one servant from the negligence of an- 
 other servant, in, 379, 384. 
 burden of proof in, 431, 435, 448. 
 KENTUCKY, plaintiff's negligence must have been an "efficient 
 cause " of the injury to constitute it contributory 
 negligence, in, 28. 
 plaintiffs failure to anticipate the fault of the defendant, an 
 
 extra judicial rule as to, in, 42. 
 statute providing for the recovery of " punitive damages " in 
 
 cases of injury resulting in death, in, 70, 100, 324. 
 the rule of comparative negligence as supposed to obtain, in, 
 
 79. 99- 
 
 not the rule, however, in any degree, in, 81, 99, 102, 
 
 327- ' ' 
 
 Louisville, &c., R. R. Co. v. Collins — a consideration of the 
 
 rule as declared in the case of, loi, 102, 325, 326, 337. 
 followed in Chicago, &c. R. R. Co. v. Ross, by Supreme 
 
 Court of U. S., 337. 
 privity in negligence between common carrier and shipper, 
 
 and common carrier and passenger, in, 114, 119, 120. 
 the rule in, upon this point, the correct rule, 120. 
 Mr. Justice Stites' opinion in the case of a child scalded in 
 
 hot water in a gutter, 127, «. 
 duty of a railway company in, at crossings of highways, in 
 
 reference to signals, 197. 
 fences, and cattle at large, in, 225, 233. 
 burden of proof in, 431, 448. 
 
GENERAL INDEX. 487 
 
 KNOWLEDGE of the danger to be guarded against, an essential 
 element in the case when contributory negligence is 
 the issue, 38-40. 
 
 plaintiff not responsible for failure to avoid danger of which 
 he had no, 38. 
 
 what one knows he must remember, 40. 
 
 of danger does not necessarily render doing a dangerous act 
 negligence, 40, 237, 258, 370. 
 
 ignorance of what one is under an obligation to know is no 
 defense, 198. 
 
 employer's, as to the condition of machinery, or the charac- 
 ter of employees, an element in determining his liability 
 in actions by employees, 366-368. 
 
 duty of employer in respect of such, 367, 368. 
 
 servant's, when a bar to his action against master, 369, 370. 
 
 LAW AND FACT, negligence a mixed question of, 451-454, 
 a question of law, when, 454-458. 
 of fact, when, 458-462. 
 
 See Contributory Negligence. 
 LAW MARITIME. See Admiralty. 
 
 LIFE INSURANCE, when the plaintiff's negligence is a defense in 
 actions upon policies of, 401. 
 See Insurance. 
 LORD CAMPBELL'S ACT, negligence as a defense in actions 
 under, 64, 65. 
 imputed contributory negligence of parent, in actions for the 
 
 killing of an infant, under, 138, 139. 
 contract releasing employer from liability under a statute, 
 will suffice to bar an action under, 385, 385. 
 See Campbell, Lord. 
 LOUISIANA, to wear a sun-bonnet in the highway not an act of 
 negligence, in an action for injuries sustained by 
 being run over, in, 279. 
 law of the road in, applies equally to persons moving along 
 the highway in the same and in opposite directions, 
 
 293- 
 a trespass to walk upon a street railway track in, 299. 
 not negligent to allow one's arm to extend a little out of a 
 
 street car window in, 308. 
 burden of proof in, 426, 448. 
 
488 GENERAL INDEX. 
 
 LYNCH V. NURDIN, the rule as to children as trespassers de- 
 clared, in, 145-149. 
 See Children. 
 
 MACHINERY. See Master and Servant. 
 
 MAINE, negligence of parent imputed to an infant plaintiff, in, 
 
 125. 137- 
 the rule as to a recovery of damages for injuries sustained 
 
 while traveling on Sunday, in, 188, 274, 275. 
 fences, and cattle at large, in, 224, 234. 
 injury to runaway horses upon the highway from defects 
 
 therein— rule as to, in, 256. 
 rights of children playing in the highway in, 289. 
 burden of proof, 426, 448. 
 MARITIME LAW. See Admirai,ty. 
 
 MARYLAND, negligence of parent imputed to an infant plaintiff, 
 in, 125, 126, 137. 
 injury to a passenger at a car door in passing through a 
 
 tunnel, in, 169. 
 being upon a railway track not at a crossing, on horseback, 
 
 in, 217. 
 fences, and cattle at large, in, 225. 
 fight of an owner of land to use and enjoy his property not 
 
 qualified by the presence of a railway track, in, 246. 
 boarding a moving street car, in, 303. 
 overhead railway bridges in, lawful structures though not 
 
 high enough to protect train-men who stand on top of 
 
 freight cars, &c., 363, 364. 
 burden of proof in, 431, 448. 
 MASSACHUSETTS, doctrine of comparative negligence denied, 
 in, 81. 
 privity in negligence between carrier and shipper, in, 119, 
 
 119, n. 
 negligence of parent imputed to an infant plaintiff, in, 125, 
 
 137- 
 children as trespassers, rule in, as to, 149. 
 boarding moving trains, in, 156. 
 
 Sunday traveling, damages not recoverable .for injuries dur- 
 ing, when, 186-188, 272-274. 
 Bosworth V. Inhabitants of Swansey, 187, 272. 
 negligence at railway crossing, in, 195. 
 railway company owes no duty to a mere trespasser, in, 218, 
 
GENERAL INDEX. 489 
 
 MASSACHUSETTS— continued. 
 
 fences, and cattle at large, in, 225, 235. 
 
 right of owner of land to use and enjoy his property not 
 qualified by the presence of a railway track, in, 245 . 
 
 injury to runaway horse from defect in a highway, rule as 
 to, in, 255. 
 
 what is, and what is not, a traveling from " necessity or 
 charity," in, 272-274. 
 
 city ordinances requiring property owners to clean away 
 snow upon the highway adjoining their property, valid 
 in, 285. 
 
 right of children to play upon the highway, in, 289, 290. 
 
 riding upon platform of street car, in, 304. 
 
 Farwell v- Boston & Worcester R. R. Co., the rule in the 
 case of, 319. ' 
 
 attitude of the Supreme Judicial Court of, upon the ques- 
 tion of an employer's liability to his employees, 319, 
 321' 337, 339^ 360, 375, 382, 382, n. 
 
 liability of a servant to a fellow servant, in, 275. 
 
 burden of proof in, 426, 448. 
 MASTER. See Master and Servant. 
 
 MASTER AND SERVANT, implied contract of waiver of a right 
 of action for damages for injuries sustained in the 
 service under certain circumstances, between, 16. 
 
 master liable when the servant invites or induces one to ex- 
 pose himself to risk, in the course of the employment, 
 72, 157, 160, 161, 173, 174, 177. 
 
 master liable for the negligence of his servant, when, 107, 
 108. 
 
 driver of omnibus or street car not the servant of the pas- 
 senger, 116, 117. 
 
 master not liable when servant induces passenger to ride in 
 unauthorized place or position, 160-163, 173, 174. 
 
 contributory negligence of a servant a bar to his action 
 - against master, 311- 
 
 negligence of master ground of an action by a servant, 311, 
 312. 
 
 master's negligence combined with that of a fellow- servant, a 
 ground of an action by a servant, 313. 
 
 respondeat superior, 313. 
 
 master not liable for negligence of a co-servant, 315. 
 
 the English cases to this point, 316, 317. 
 
490 GENERAL INDEX. 
 
 MASTER AND SERVANT— c^wft^w^il 
 
 this rule as declared in the United States, 317-320. 
 
 reason for the rule that exempts a master from liability to 
 
 one servant for the negligence of another, 321. 
 the sufficiency of the reason questioned, 322-324. 
 an employer's responsibility in Kentucky, 324-326. 
 in Illinois, 327. 
 in Tennessee, 327. 
 . who are fellow-servants, 328-350. 
 See Co Servant. 
 the obligation of an employer as toward his employees, three- 
 fold, 349.35°- 
 duty as to machinery, tools, premises, &c., 350, 351. 
 
 a continuing duty, 352, 353. 
 not required to furnish the best appliances, 354, 355. 
 master not a guarantor of the safety of appliances, 
 
 3SS- 
 duty as to the competency and fitness of his employ- 
 ees, 356, 357. 
 a continuing duty, 357. 
 master not a guarantor of the competency of serv- 
 ants, 358. 
 may act with reference to employment and superin- 
 tendence of servants through an agent and be- 
 come responsible for the agent's acts and omis- 
 sions, 358, 359. 
 minor servants, 359. 
 
 not liable to, for injuries sustained by reason of 
 
 the negligence of co-servants, 359, 360. 
 this rule criticised, 360. 
 when the master orders the servant into danger, or to do 
 
 something he did not contract to do, 361. 
 patent and latent dangers of the service, rule as regards, 
 
 361, 362. 
 servant takes the risk of " seen dangers," 362. 
 
 is entitled to have latent dangers pointed out to him, 
 
 362. 363- 
 
 railway companies not liable to their train-men for injuries 
 from dangerous overhead bridges, 363, 364. 
 
 liability of railway companies to train-men for injuries sus- 
 tained in coupling cars, 364-366. 
 
GENERAL INDEX. 
 
 491 
 
 MASTER AND SERVANT— continued. 
 
 master's knowledge of the danger an element in the case, 
 366. 
 
 See Knowledge. 
 ■ " the obligation of the servant to protect himself, 368. 
 
 must possess fair measure of skill and capacity for the duty 
 
 he undertakes, 369. 
 servant's knowledge of the danger an element in the case, 
 369- 
 
 See Knowledge. 
 when the servant is held to have waived the danger or de- 
 fect, 371-373. 
 continuance in the service after discovering the danger a 
 
 waiver of a right to complain of injury, 372. 
 but a servant may prudently run some risks, when, 373. 
 servant must obey rules designed to promote his safety, 374, 
 
 375- 
 liability of one servant to another for negligence, 375, 376. 
 statutory modifications of the rule that exempts a master 
 from liability to one servant for the consequences of 
 another servant's negligence. 377-382. 
 Employer's Liability Act (43 & 44 Vict., ch. 42), 377, 378. 
 provisions of that act, 377. 
 statutes to the same effect in the United States, 379-382, 
 
 382, n. 
 contracts exempting master from liability under these stat- 
 utes, 383-385. 
 are valid in England, 383. 
 
 generally forbidden in the United States, 384, 385. 
 See Contract of Release. 
 laws of other countries upon the question of an employer's 
 liability, 385-389. 
 Scotch law, 386-388. 
 Irish law, 388. 
 French law, 388. 
 Italian law, 388. 
 Prussian law, 389. 
 position of the English and American courts anomalous, 
 
 389- 
 
 See Co-Servant; Knowledge; Agent. 
 
 MICHIGAN, negligence of master imputed to a maid-servant rid- 
 ing in a wagon with him, and sustaining an injury 
 from collision, in, 114. 
 
492 GENERAL INDEX. 
 
 MICHIGAN— continued. 
 
 fences, and cattle at large, in, 225, 235. 
 
 right of an owner of land to use and enjoy his property how 
 
 qualified by the presence of a railway track, in, 246. 
 no action against a town by a private individual for injury 
 
 from defective highway, in, 254, 255. 
 burden of proof in, 426, 448. 
 MINNESOTA, negligence of a parent imputed to an infant plaintiff, 
 in, 125, 137. 
 fences, and cattle at large in, 225, 235. 
 when a passenger in a street car sits with his arm somewhat 
 extended out of the window, the question of his negli- 
 gence is for the jury, in, 308. 
 burden of proof in, 431, 448. 
 MINOR SERVANT. See Children ; Master and Servant. 
 MISSISSIPPI, fences, and cattle at large, in, 229, 232, 234. 
 
 statutory modification of the rule that exempts a master from 
 liability to one servant for the negligence of another, in, 
 
 380. 
 burden of proof in, 426, 448. 
 MISSOURI, negligence of parent not imputed to an infant plaintiff, 
 
 in, 137- 
 not negligence, in se, in the absence of a statute, not to look 
 
 up and down the track of a railway before attempting to 
 
 cross, in, 194. 
 trespassers upon a railway track, the modified, or Missouri 
 
 rule as to, 209, 2,10. 
 this rule an attempt to apply the rule of Davies v. Mann, 
 
 210. 
 fences, andx:attle at large, in, 229, 235. 
 right of an owner of land to use and enjoy his property 
 
 not qualified by the presence of a railway track, in, 
 
 24s, 248. 
 injuries to a runaway horse from defects in the highway, 
 
 in, 256. 
 overhead railway bridges in, lawful structures though not 
 
 high enough to protect train-men who stand on top of 
 
 freight cars, &c., 363, 364. 
 statutory modification of the rule that exempts a master 
 
 from liability to one servant for the negligence of an- 
 other servant, in, 381. 
 burden of proof in, 431, 448. 
 
GENERAL INDEX. 
 
 493 
 
 MITIGATION OF DAMAGES, contributory negligence, in general, 
 not looked to, in, 73. 
 but, in a proper case, the damages should be apportioned, 
 73-75- 
 
 See Apportionment of' Damages. 
 the rule in Georgia and Tennessee as to contributory neg- 
 ligence is, for practical purposes, something near a rule 
 in, 92, 95-97. 
 
 See Georgia ; Tennessee. 
 MONTANA, statutory modification of the rule that exempts a mas- 
 ter from liability to one servant for the negligence 
 of another servant, in, 380. 
 MUNICIPAL CORPORATIONS, no action at common law against, 
 for injuries occasioned by defects in the highway, 
 
 253- 
 this right of action given by statute, 254, 255. 
 exception to the rule in certain jurisdictions, 254, 255. 
 qnantum of care required of, as to keeping the highways in 
 
 repair, 254. 
 obligation of, as great in respect of obstructions as defects, 
 
 ass- 
 must make the highway safe even for runaway horses, 
 
 when, 25s, 256. 
 when an action will lie against, for an injury from a de 
 
 fective sidewalk, 258, 264. 
 when, not, 258. 
 liable for the condition of the road and street, not for that 
 
 of the adjoining property, 261. 
 hence, when the traveler leaves the highway, he has no 
 
 action against, in general, 261. 
 but this is not a universal rule, 261, 262. 
 must maintain railings or fences at points upon the highway 
 
 where there are embankments or pitfalls, 262, 263. 
 must guard against ordinary, but not against extraordinary 
 
 dangers in this respect, 262. 
 no action lies against, on behalf of one injured while using 
 
 the highway for a playground, 266, 289, 290. 
 duty of, is to bona fide travelers only, 266, 266, n. 
 that the plaintiff was violating an ordinance as to fast 
 
 driving, at the time of the injury from the defect in 
 
 the pavement, not a defense in an action against, 266. 
 See Collateral Violations of Law. 
 
494 GENERAL INDEX. 
 
 MUNICIPAL CORFORATlO'NS—conimued. 
 
 what is licensed by, is not a nuisance, and, consequently, 
 no action will lie against, for injury from such a cause, 
 268, 269, 416, 417. 
 how far defective vehicles or harness is a defense in such 
 
 actions against, 269. 
 no action against, in some New England States, for injury 
 from defect in the highway, sustained by one who 
 travels for mere pleasure, on Sunday, 271-276. 
 this rule denied elsewhere, 276-278. 
 the objection to it presented, 276-278. 
 duty of, in reference to ice and snow upon the highway, 
 280-286. 
 
 See Icy Sidewalks ; Highways. 
 liable for injuries from defectively hung awnings, 287. 
 duty of, toward children playing upon the highway, 288-292. 
 the better rule upon this point, 291. 
 the law of the road. 292-294. 
 duty of, toward one intoxicated, in respect of the condition 
 
 of the highway, 390, 391. 
 no action against, for injuries from a licensed exhibition of 
 
 fireworks, 416, 417. 
 sea-shore not a highway, and, consequently, there can be no 
 action on behalf of one injured while walking there, 
 against, 417. 
 
 See Highways. 
 MURRAY V. SOUTH CAROLINA R. R. CO., the case from which 
 the doctrine of a master's non-liability to one serv- 
 ant for the negligence of another servant arose in 
 the United States, 317. 
 
 NEBRASKA, negligence of a parent not imputed to an infant plaint- 
 iff, in, 137. 
 fences, and cattle at large, in, 230. 
 right of an owner of land to use and enjoy his property not 
 
 quahfied by the presence of a railway track, in, 245. 
 burden of proof in, 431, 448. 
 NEGLIGENCE, origin of the law of, i, 2. 
 
 variance between modern practice and scholastic theory in 
 
 respect of the law of, 3. 
 our modern law of, essentially Roman, 2, 3. 
 definitions proposed of, 3-6, 67. 
 not practicable, 4, 5, 6. 
 
GENERAL INDEX. 
 
 495 
 
 tfEGhlGEliCE—coniinued. 
 
 contributory, defined, 7. 
 
 origin of the modern law of, 8, 9. 
 confusion in the law of, introduced by Davies v. 
 Mann, 10, 11. 
 See Davies v. Mann. 
 reasons for the rule of, 11-13. 
 general statement of the rule of, 13, 37. 
 See Contributory Negligence. 
 of plaintiff, in order to constitute contributory negligence, 
 must amount to a want of ordinary care, 18-24. 
 See Ordinary Care. 
 must have been a proximate cause of the injury 
 complained of, 25-34. 
 See Proximate Cause. 
 distinction between causal connection and the plaintiff's, 
 
 34-37- 
 
 See Causal Connection. 
 
 failure of plaintiff to anticipate the defendant's, 40. 
 acting erroneously under the impulse of fear is not, 42. 
 an effort to save human life is not, 45. 
 collateral violations of law not, in general, a defense in ac- 
 tions of, 49. 
 plaintiffs prior, in connection with defendant's subsequent, 
 
 58. 
 plaintiff's, after the accident, 61. 
 of the decedent in actions under Lord Campbell's Act, 64. 
 
 See Lord Campbell's Act. 
 comparative. See Comparative Negligence. 
 imputed contributory, of third persons. See Imputed Con- 
 tributory Negligence. 
 as a defense in actions against railway companies. See Rail- 
 way Companies. 
 
 for injuries upon the highway. See Highways. 
 between master and servant. See Master and 
 Servant. 
 intoxication as a defense in actions of. See Intoxication. 
 physical infirmities as a defense in actions of. See Deaf- 
 ness ; Blindness ; Physical Infirmities. 
 as a defense in actions on policies of insurance. See Insur- 
 ance. 
 
 against telegraph companies. See Telegraph Com- 
 panies. 
 
496 GENERAL INDEX. 
 
 NEGLlGEyiCE— continued. 
 
 in collision at sea. See Admiralty. 
 
 as a defense in actions between attorney and client. See At- 
 torney AND Client. 
 
 between physician and patient. See Physician 
 
 AND Patient. 
 between innkeeper and guest. See Innkeeper and 
 Guest. 
 burden of proof in actions of. See Burden of Proof. 
 as a question of law or of fact. See Law and Fact. 
 degrees of, 18, 19. 
 in the Roman law but two degrees in — culpa lata, or gross 
 
 negligence, and culpa levis, or simple negligence, 18. 
 to which the scholiasts added a third — culpa levissitna, or 
 
 slight, 18. 
 this triple classification brought into the English law in Coggs 
 
 V. Bernard, 18. 
 it implies three corresponding grades, or degrees, of diligence 
 or care, 19. 
 
 See Ordinary Care. 
 slight, is a want of great care, 18-21, 182, 183. 
 
 not a defense to an action for an injury from gross 
 negligence, 77, 82, 86. 
 " gross," as applied to, said to have no settled meaning, 19. 
 
 said to be " vituperative," 19, 66, 133. 
 gross, is a want of even slight care, 19, 66, 67, 77, 89, loi, 
 182, 183. 
 
 not the same thing as wilful, 66-68, 101, 102, 182, 
 
 183. 
 but confounded by the older judges with wilful, 66, 
 68, loi, 102, 182, 183. 
 this classification of the degrees of, by some criticised as 
 
 meaningless and artificial, 18, 19, 133. 
 an argument in favor of the triple classification, 67. 
 wilful, the term a misnomer, 67. 
 
 what is meant by, 67, 69. 
 
 contributory negligence not a defense to an action 
 
 for an injury from, 68-70. 
 statute in Kentucky providing for the recovery of 
 punitive damages in case of loss of life from, 
 70, 71. 
 slight, sometimes used in such a way as to mean negligence 
 which was a " remote cause," 87, 90, 91. 
 
GENERAL INDEX. 497 
 
 NEGLIGENCE— continued. 
 
 gross, sometimes so used as to mean negligence which was a 
 
 " proximate cause," 87, 90, 91. 
 common carrier may not stipulate for freedom from liability 
 
 for the consequences of his own, or his servants', 180, 
 
 181. 
 contra in New York, 182, 183. 
 is an inference, not a fact, 45 2. 
 
 See Ordinary Care. 
 NEVADA, fences, and cattle at large, in, 229, 235, 236. 
 NEW HAMPSHIRE, the Massachusetts rule as to Sunday traveling, 
 
 * and injuries upon the highway, denied, in, 189. 
 fences, and cattle at large, in, 224, 234, 235. 
 right of the owner of land to use and enjoy his property not 
 
 qualified by the presence of a railway track, in, 245. 
 runaway horses injured upon the highway iii, liability of the 
 
 town for, 256. 
 right of children to play upon the highway, in, 289, 290. 
 burden of proof in, 431, 448. 
 NEW JERSEY, rule of comparative negligence denied, in, 81. 
 
 doctrine of priority in negligence between carrier and pas- 
 senger denied, in, no, 116, 117. 
 fences, and cattle at large in, 225. 
 right of an owner of land to use and enjoy his property 
 
 not qualified by the presence of a railway track, in, 
 
 244, 248. 
 liability of railway company for setting fire to property by 
 
 means of burning oil, that floated down a stream in 
 
 flames from an exploded tank, in, 250. 
 municipal corporation not liable in, to a private individual 
 % for a defective highway, 254. 
 
 overhead railway bridges in, lawful structures, though not 
 
 high enough to protect train-men who stand on top of 
 
 freight cars, &c., 363, 364. 
 burden of proof in, 431, 448. 
 NEW YORK, influence in, of the case of Davies v. Mann, 29, 30. 
 
 no action for the consequences of inevitable accident, in, 
 
 38, 39- 
 plaintiff acting wildly under the impulse of fear, in, 45, 47. 
 
 distinction between gross negligence and wilful negligence 
 
 in a case from the reports of, 66, 67. 
 the doctrine of comparative negligence denied, in, 80. 
 32 
 
498 GENERAL INDEX. 
 
 NEW YOB-K.— continued. 
 
 imputed contributory negligence of third persons — the rule 
 
 as to a parent's negligence imputed to a child in an 
 
 action for injury to it, in, 104, 106, 121-123, 125, 1261 
 
 132-137. 
 
 as between passenger or shipper and common carrier, in, 
 
 114, 119, 120. 
 riding on platforms of railway cars, in, 159. 
 the several grades of negligence defined, in, 182, 183. 
 rule as to crossing a railway track, in, 202. 
 children trespassing on railway property, in, 216, 217. 
 fences, and cattle at large, in, 225, 235, 239-241. 
 right of an owner of property to use and enjoy his prop- 
 erty not qualified by the presence of a railway track, 
 in, 245, 247. 
 liability of the town for injury to runaway horses injured 
 
 upon a defective highway, in, 256. 
 pedestrians crossing the street, in, 279. 
 right of children to play upon the highway, in, 288, 289, 
 
 291. 
 boarding a moving street car in, 302, 303. 
 overhead railway bridges in, lawful structures, although not 
 high enough to protect train-men who stand on the top 
 of freight cars, &c., 363, 364. 
 burden of proof in, 438-450. 
 NINETY PER CENTUM of all the actions of negligence that are 
 brought are said to fail by reason of the contribu- 
 tory negligence of the plaintiff, 383, 423, 424, 429, 
 43°- 
 NON SUI JURIS, infants, idiots and lunatics are, 120-122. 
 
 negligence of parent or custodian to be imputed to, when, 
 120, 122, 136. 
 
 See Imputed Contributory Negligence. 
 NORTH CAROLINA, fences, and cattle at large, in, 230. 
 
 the right of the owner of land to use and enjoy his property 
 not qualified by the presence of a railway track, in, 245. 
 burden of proof in, 426, 433, 448. 
 NUISANCE, that which a municipal corporation has licensed for a 
 consideration cannot be regarded a, 268, 416. 417. 
 a pitfall near a highway, unfenced or unguarded, is a, 263.. 
 an opening in a sidewalk, when not a, 264. 
 
GENERAL INDEX. 499 
 
 ^aVISAUCE— continued. 
 
 the maintenance of a fruit stand upon the sidewalk in a city 
 
 is a, when, 267. 
 a horse unlawfully at large upon the highway is a, 268. 
 a ruinous building upon a public street, likely to fall, is a, 
 
 286. 
 overhead railway bridges that are so low as to endanger the 
 
 lives of train-men are a, when, 363, 364. 
 
 OHIO, negligence of a parent not imputed to an infant plaintiff, in, 
 
 137- 
 fences, and cattle at large, in, 228, 235. 
 burden of proof in, 431, 448. 
 ORDINARY CARE, plaintiff must exercise, or his conduct will 
 amount to contributory negligence, when, 7, g, 14, 
 20-22, 301. 
 the standard by which the conduct of the plaintiff is to be 
 
 measured is the standard of, 7, 9, 14, 19-22, 37, 38. 
 the standard by which the conduct of the defendant is to be 
 
 measured is the standard of, 10. 
 what is, generally, 18-24. 
 the definition of, in the Roman law, 18. 
 failure to exercise, is ordinary negligence, 19. 
 plaintiff not bound to exercise extraordinary, or great care, 
 
 20, 21. 37. 38- 
 
 but the slightest want of, is enough to constitute contribu- 
 tory negligence, 20, 21. 
 
 the want of, as a defense to the plaintiff's action, may be prior, 
 or subsequent to the defendant's negligence, or contem- 
 poraneous therewith, 21, 58-64. 
 
 a relative, not an absolute term, 22, 23. 
 
 Chancellor Walworth's definition of, 22. 
 
 generally a question of fact, 23. 
 
 See Law and Fact. 
 
 ■but tends more and more, as to the standard of conduct, to 
 become a question of law, 24, 461, 462. 
 
 want of, on the part of the plaintiff, must have been a prox- 
 imate cause of the injury, or it is not a defense, 25-34. 
 See Proximate Cause. 
 
 one may undertake dangerous enterprises and yet exercise, 
 39. 40> 45-49- 
 
500 GENERAL INDEX, 
 
 ORDINARY CKKE— continued. 
 
 frequently requires one to anticipate the probable careless- 
 ness of others, 41, 42. 
 the rule as to, when one acts under the impulse of fear, 42- 
 
 45- 
 
 or when an effort is piade to save human life, 45-49. 
 
 or to save property in danger, 47, 48. 
 
 or when the defendant throws plaintiff off his 
 
 guard, 71, 72. 
 
 in a child, what is, 144, 145, 211. 
 
 See Children. 
 
 the common carrier must exercise more than, looking to the 
 
 safety of his passenger, 153. 
 
 See Railway Companies ; Street Railway 
 
 Companies. 
 
 is not an insurer, but is liable for slight negligence, 
 
 154. 
 apassenger must exercise, in taking care of himself, 155. 
 what amounts to, on the part of a passenger, under various 
 circumstances. See Railway Companies ; Street 
 Railway Companies, &c. 
 the carrier must exercise, toward strangers, i, 2. 
 
 all persons not employees or passengers, 190, 195, 
 200. 
 the duty of the public at railway crossings to exercise, 191. 
 railway company does not owe the duty even of, toward tres- 
 passers upon its tracks, 205-208, 217, 218, 220, 221. 
 a contrary rule, 209-211, 219, 221. 
 what is, in reference to cattle at large, on the part of the 
 
 owner, 228. 
 the measure of the obligation of a municipal corporation as 
 to the maintenance of the highways is, 254. 
 See Municipal Corporations. 
 traveler upon the highway must exercise, 256, 257, 259, 292, 
 
 293. 301- 
 
 See Highways. 
 the measure of tlie obligation of the master as to the safety 
 of the servant is, 350, 352, 355, 357, 358. 
 See Master and Servant. 
 of the servant as to his own safety is, 368-375. 
 See Master and Servant. 
 
GENERAL INDEX. 5OI 
 
 ORDINARY CARE— continued. 
 
 whether there should be a presumption of, in favor of a 
 plaintiff in an action of negligence, 421, 423, 424, 427- 
 430. 433. 436, 437- 
 OREGON, fences, and cattle at large, in, 229. 
 
 burden of proof in, 426, 448. 
 ORIGIN OF THE LAW OF NEGLIGENCE in its present shape, 
 
 I. 2, 3. 
 OVERHEAD RAILWAY BRIDGES, &c., rule as to, when train- 
 men are injured by, 363, 364. 
 See Railway Companies. 
 
 PARENT AND CHILD. See Children ; Imputed Contribu- 
 tory Negligence. 
 PARTNERSHIPS AND RECEIVERSHIPS as employers of labor, 
 
 liability of, to employees, 349. 
 PASSENGERS. See Railway Companies ; Street Railway 
 
 Companies ; Ferries, &c. 
 PATENT AND LATENT DANGERS, servant takes the risk of 
 "seen dangers," 361, 362. 
 but is entitled to have latent dangers pointed out to him by 
 his employer, 362, 363. 
 PEDESTRIANS. See Highways ; Railway Companies ; Street 
 
 Railway Companies, &c. 
 PENNSYLVANIA, rule in, as to trespassers upon railway tracks, 70, 
 205-208, 217, 221. 
 the doctrine of comparative negligence denied, in, 81. 
 privity in negligence between a carrier and passenger and 
 
 carrier and shipper, in, iii, 112, 114, 118, 119. 
 negligence of a parent not imputed to an infant plaintiff, in, 
 
 136, 137- 
 
 the question of a parent's negligence in the care of its child 
 modified by reason of the parent's poverty, in, 139-144, 
 291. 
 
 standing or riding on platform of cars, or in other unauthor- 
 ized positions or places, in, 159, 160, 162. 
 
 injury to passengers at car windows, in, 164-166. 
 at and about railway stations, in, 172. 
 
 crossing a railway track, in, 201. 
 
 fences, and cattle at large, in, 225. 
 
502 .GENERAL INDEX. 
 
 TENNSYLVAm A— continued. 
 
 right of an owner of land to use and enjoy his property not 
 qualified by the presence of a railway track, in, 244, 247, 
 248. •■ 
 
 liability of a railway company for setting fire to property by 
 means of burning oil that floated down a stream, in 
 flames, from an exploded* tank, in, 251, 252. 
 
 liability of a municipal corporation, in, for injury to a runa- 
 way horse, by reason of a defective highway, 256. 
 
 right of children to play upon the highway, in, 288, 291. 
 
 law of the road, in, applies only to persons approaching each 
 other upon a highway, 293. 
 
 passenger's arm extended out of a car window, in, 307. 
 
 whether the servants of a contractor are fellow-servants with 
 those of the employer of the contractor, in, 345. 
 
 overhead railway bridges, liability of railway companies for 
 injuries to train-men by, in, 363, 364. 
 
 law of innkeeper and guest not applicable to a clothier, in 
 whose store a customer's watch and money is stolen, in, 
 416. 
 
 but the clothier liable as bailee for hire, 416. 
 
 burden of proof, 431, 448. 
 
 PHYSICAL DISABILITIES, various, as a defense in actions of 
 negligence. 
 
 See Blindness; Deafness; Intoxication, &c. 
 PHYSICIAN AND PATIENT, contributory negligence as a defense 
 in actions by patients, against their physicians, 409-411. 
 PLATFORMS OF CARS, riding or standing on. 
 
 See Railway Companies; Street Railway Compa- 
 nies. 
 
 POVERTY OR DESTITUTION of a parent an element in deter- 
 mining whether or not its care of a child was reasona- 
 ble, 139-144, 291, 292. 
 
 See Railway Companies; Highways. 
 
 PRESUMPTION OF DUE CARE, should there be a, in favor of 
 the plaintiff in an action of negligence, 41, 42, 423, 424, 
 427, 428-430, 432, 436-438, 448. 
 train-men may act upon a, as to a person seen walking on a 
 railway track some distance in advance of a train, 394- 
 396. 
 
GENERAL INDEX. 5O3 
 
 PRESUMPTION OF DUE CKKE— continued. 
 
 the rule as to the burden of proof turns upon the question 
 whether or not there is a, in favor of the plaintiff, 42 1- 
 425, 427-430, 436-448- 
 
 See Burden of Proof. 
 PRIESTLEY V. FOWLER, the exception to the rule of respondeat 
 superior, as between master and servant, in the case 
 
 of, 315. 316. 321- 
 
 See Master and Servant. 
 PRINCIPAL AND AGENT. See Children ; Master and Ser- 
 vant ; Imputed Contributory Negligence ; 
 Agent. 
 "PRIOR" AND "SUBSEQUENT," as applied to plaintiff's negli- 
 gence, sometimes practically equivalent in meaning 
 to " proximate " and " remote," 58, cf. 87, 91. 
 See Negligence ; Kansas. 
 PRIOR NEGLIGENCE OF PLAINTIFF, as a defense to the sub- 
 sequent negligence of defendant, 58-60. 
 PRIVITY IN NEGLIGENCE between a common carrier and pas- 
 senger and a common carrier and shipper, 103-120. 
 See Imputed Contributory Negligence ; 
 Common Carrier. 
 PROXIMATE CAUSE, negligence of the plaintiff must be a, in or- 
 der to constitute contributory negligence, 7, 9, 14. 
 what is a, 25, 26, 32-34, 227, 249. 
 cannot be exactly defined, 32-34. 
 
 negligence of the plaintiff need not be the sole, of the injury 
 complained of, in order to constitute it a defense, 27, 35. 
 negligence of the plaintiff must substantially contribute, in ' 
 order to be a, 27. 
 
 must be an efficient cause in order to be a, 28, 
 nothing to be gained by these various circumlocutions for, 
 
 28, 29. 
 Mr. Justice Cooky's definition of, 32. 
 Lord Bacon's definition of, 33, 34. 
 negligence must be contributory negligence in order to be a, 
 
 of the injury complained of, 35, 36, cf. 20, 21. 
 collateral violations of law are not to be regarded a, of the 
 
 injury sued for, 49-58. 
 cattle at large a, of their injury, 226, 227. 
 communicated fires a, of injury, 249, 250. 
 question of, does not arise in Illinois, 86, 87 . 
 
504 GENERAL INDEX. 
 
 PRUSSIAN LAW, liability of an employer to an employee, under 
 the, 389. 
 
 PUBLIC CARRIER. See Common Carrier ; Imputed Contrib- 
 utory Negligence, &c. 
 
 PUNITIVE DAMAGES, statute in Kentucky providing for the re- 
 covery of, in cases of injury resulting in death, 70, 
 100, 324. 
 
 See Kentucky. 
 
 QUESTION OF LAW OR FACT, negligence a, 23, 48, 49, 451- 
 462. 
 
 See Law and Fact. 
 
 RAILWAY COMPANIES, the same degree of care required of a 
 woman as of a man in actions of negligence 
 against, 24, ». 
 contributory negligence not a defense to actions against, for 
 
 wilful injury, 30, 31, 53-58, 66, 68. 
 that the plaintiff acted wildly through the impulse of fear, 
 no defense in actions against, 42, 44. 
 
 erroneously in trying to save human life, no defense 
 in actions against, 45-49. 
 an anomalous decision in Georgia in an action by a train-man 
 
 against, 51, 52. 
 trespassers upon the tracks of, the Pennsylvania rule, 53-58, 
 70, 205-208, 217, 222. 
 
 the modified, or Missouri rule, 58-60, 70, 209-211, 
 217, 222. 
 plaintiff's negligence in respect to fires negligently kindled 
 by, 63, 63. 
 
 See Fires. 
 negligence of decedent in actions against, under Lord Camp- 
 bell's Act, 64-66. 
 
 See Lord Campbell's Act. 
 duty of, at crossings, as to the public, 189-191, 195-200. 
 
 at crossings, where the view is obstructed, 72, 200- 
 204. 
 duty of the public at crossings, 72, 191-195. 
 the doctrine of comparative negligence as applied to actions 
 
 against. See Comparative Negligence, etc. 
 negligence of, as common carriers, when to be imputed to a 
 passenger or shipper, in actions of negligence, 103-120. 
 See Imputed Contributory Negligence; Priv- 
 ity IN Negligence; Common Carrier. 
 
GENERAL INDEX. 505 
 
 RAILWAY COMFANIES—coniinued. 
 
 negligence of a parent, when imputed to an infant plaintiff 
 in actions against, 120-145. 
 
 See Imputed CoNXRiBUTORir Negligence ; Chil- 
 dren; Common Carrier. 
 children as trespassers on the tracks of, 145-150, 211-217. 
 
 See Children; Trespassers. 
 contributory negligence, generally, as a defense in actions 
 
 against, 152-253. 
 duty of, towards passengers, generally, 153. 
 dutias, rights, and liabilities of passengers, in actions by 
 them, against, 155. 
 in respect of boarding moving trains, 155. 
 in respect of alighting from moving trains, 156. 
 in respect of standing or riding on platforms, 158. 
 in respect of riding in baggage cars, on locomotives, or 
 in other unauthorized positions or places, 159-164. 
 in respect of injuries at, or about, car windows or doors, 
 
 164-171. 
 in respect of injuries at, or about, stations, 171-176. 
 rights of free passengers, in actions against, 176-179. 
 liability of, as to free passengers, how far to be limited by 
 
 contract, 179-184. 
 negligence of passengers in respect of baggage, in actions 
 against, 184-186. 
 See Baggage. 
 Sunday traveling for pleasure or upon business errands, as a 
 defense in actions against, 186-189. 
 See Sunday Traveling. 
 the turn-table cases, 212-217. 
 walking upon the track of, 217-222. 
 
 various other acts of trespass upon the property of, 222, 
 223. 
 
 injuries to animals in actions against, 224-242. 
 
 See Animals; Fences. 
 duty of, in reference to fences, 232-242. 
 
 See Fences. 
 negligent communication of fire by, 243-252. 
 
 See Fire. 
 duty of, toward employees, 317, 319, 321, 349-368. 
 
 See Master and Servant. 
 
506 GENERAL INDEX. 
 
 RAILWAY COUFANlES-coniinued. 
 
 how. far exempt from liability for injuries sustained by em- 
 ployees in their service, 317, 319, 325. 
 See Master and Servant. 
 who are fellow-servants in actions against, 328-349. 
 
 See Co-Servants; Master and Servant. 
 what employees of, are, a.nd what are not, co-servants — 
 many cases collected, 339-343. 
 as between railways having running connections, 346. 
 duty of, as to overhead bridges, depot roofs, etc., 363, 364. 
 
 as to train-men coupling cars, 364, 366. 
 duty of employees of, as to their own safety, 368-375. 
 
 See Master and Servant. 
 statutes affecting the liability of, as to employees, 377-385. 
 intoxication as a defense in actions against, 204, 205, 390- 
 
 398- 
 
 See Intoxication. 
 
 deafness, blindness, or other physical infirmity as a defense, 
 in actions against, 204, 205, 390-398. 
 
 See Street Railway Companies ; Common Car- 
 rier ; Master and Servant ; Co-Servant; 
 Imputed Contributory Negligence, &c., 
 &c. 
 REASON OF THE RULE of contributory negligence, 11-13. 
 RECEIVERSHIPS and partnerships as employers of labor, 349. 
 RESPONDEAT SUPERIOR, the rule of, 313. 
 
 See Master and Servant. 
 RHODE ISLAND, the Massachusetts rule as to Sunday traveling 
 not held, in, 188, 189, 279. 
 fences, and cattle at large, in, 225. 
 icy sidewalks, how far a defect in a highway, in, 280. 
 an illustration of what constitutes one a fellow-servant, in, 
 
 332- 
 statutory modification of the rule that exempts a master 
 from liability to one servant for the negligence of an- 
 other servant, in, 379. 
 burden of proof in, 431, 448. 
 ROMAN LAW, the origin of the modern law of negligence in the, 
 1-3- 
 
GENERAL INDEX. 507 
 
 SCOTCH LAW as to an employer's liability to his employees in 
 
 • actions of negligence, 385-388. 
 SEA-SHORE, the, not a highway, 417. 
 
 " SEEN DANGER," servant held to assume the risk from, 16, 17, 
 362, 371, 373- 
 
 See Master and Servant. 
 SERVANT. See Co-Servant; Master ani> Servant, &c , &c. 
 SERVANTS OF DIFFERENT MASTERS not co-servants, 343- 
 
 345- 
 
 See Master and Servant. 
 SIDEWALKS. See Icy Sidewalks; Highways. 
 SIGNS, injuries from falling, 287. 
 
 See Highways. 
 SLIGHT NEGLIGENCE. See Negligence. 
 SOUTH CAROLINA, fences, and cattle at large, in, 230, 
 
 right of an owner of land to use and enjoy his property not 
 qualified by the presence of a railway track, in, 245, 246. 
 no action in, by a private individual against a municipal cor- 
 poration for an injury from a defective highway, 254. 
 the rule of non-liability of a master to one servant for the 
 negligence of another servant first declared in, in the 
 case of Murray v. South Carolina R. R. Co., 317-319. 
 test whether one is a mere servant or the representative of 
 
 the master — the rule in, approved, 333, 334. 
 burden of proof in, 431, 448. 
 SUBSEQUENT NEGLIGENCE OF DEFENDANT, prior Tieg- 
 
 ligence of plaintiff as a defense to, 58-60. 
 SUNDAY TRAVELING, except upon errands of necessity or char- 
 ity — the rule in Massachusetts, which denies relief to 
 one who is guilty of, for an injury from a defective 
 highway, 186-189, 270-278. 
 same rule in Maine and Vermont, 188, 274, 275. 
 the rule denied elsewhere, 188, 189, 276. 
 a criticism of this anomalous doctrine, 186-189, 276-278. 
 SUPERINTENDENT, not a fellow-servant, 331-334. 
 
 See Master AND Servant; Co-Servant. 
 STARE DECISIS, influence of the doctrine of, upon the rule that 
 exempts a master from liability to one servant for 
 the negligence, of another servant, 321, 324. 
 See Co-Servant; Master and Servant. 
 STOCK, injuries by, or to. See Animals ; Fences ; Railway Com- 
 panies; Highways, &c., &c. 
 
5o8 GENERAL INDEX. 
 
 STOWELL,, LORD, rules o/, as to damages in collision in the 
 Admiralty, 403-405. 
 See Admiralty. 
 STREETS. See Highways ; Municipal Corporations. 
 STREET RAILWAY COMPANIES, one leaping from a street car 
 to avert danger from a collision, 45. 
 negligence of the driver of a street car not to be imputed to 
 
 a passenger in an action against a third party, 116, 117. 
 one pushed negligently from a street car by. another person 
 
 leaving, such negligence not a defense in an action 
 
 against the company, 104. 
 not liable for injury to property caused by sweeping snow 
 
 from the track, 284. 
 injuries on and about street cars, 296-309. 
 are common carriers, 296. 
 
 must protect their passengers from insult, 296, 297. 
 intoxicated passengers on street cars, 298. 
 duty of the drivers of street cars, 298, 299. 
 walking on a street car track, 299, 300. 
 right of, in the highway, as to the track. Sec, &c., 300. 
 collisions with street cars, 301. 
 
 persons walking on track must exercise due care, 301. 
 alighting from, or boarding, moving street cars, 302, 303. 
 riding on the platforms of street cars, 303-307. 
 rule of, prohibiting passengers from riding on platforms, a 
 
 reasonable rule, 305. 
 standing up in moving cars, 307. 
 
 passenger's arm or hand out of a car window, 307, 308. 
 free passengers and trespassers on street cars, 308, 309. 
 street cars on Sunday, 309. 
 
 TELEGRAPH COMPANIES, contributory negligence of the sender 
 or receiver of a dispatch as a defense in actions 
 against, 402, 403. 
 
 TENNESSEE, the modified rule of contributory negligence as it 
 prevails, in, 75, 79, 97-99. 
 negligence of a parent not imputed to an infant plaintiff, in, 
 
 137- 
 statutory duty of railway company as to signals, &c., in 
 cases of persons on the track, in, 221. 
 
GENERAL INDEX, 5O9 
 
 TEHtiESSEE— continued. 
 
 right of an owner of land to use and enjoy his property not 
 
 qualified by the presence of a railway track, in, 245. 
 darkie stealing chickens, in, 419. 
 
 contributory negligence of a client as a defense in an action 
 of negligence between attorney and client, in, 408. 
 TEST whether one is a mere servant or the representative of the 
 master, 333. 
 
 See Co-servant. 
 TEXAS, the doctrine of comparative negligence denied, in, 81. 
 
 the«iegligence of a parent not imputed to an infant plaintiff, 
 
 in, 137- 
 rule as to boarding moving trains, in, 156. 
 not contributory negligence in se in, not to look up and 
 
 down a railway track before crossing it, 194. 
 fences, and cattle at large, in 230, 237. 
 no action in, against a municipal corporation by a private 
 
 individual for injury from defective highway, 254. 
 burden of proof in, 432, 448. 
 THOIJOGOOD V. BRYAN, the English rule of privity in negli- 
 gence, between a passenger and carrier, declared in 
 the case of, 108-114. 
 See Imputed Contributory Negligence, &c. 
 TOWNS. See Municipal Corporations. 
 TRAVELING ON SUNDAY. See Sunday Traveling. 
 TRESPASS, when plaintiff is a trespasser, S^^feS. 
 
 a mere technical, not a defense to an action for wilful in- 
 jury, 54, 70, 71. 
 owner of property owes no duty to one who is a mere, 54, 
 
 56- 
 duty of an owner of property where an invitation or license 
 
 maybe supposed to exist to enter the property, 54, 55. 
 contributory negligence may take the form of a, 56, 57. 
 upon railway property, 70, 71, 205, 209, 221, 299. 
 children as trespassers, 148, 149, 211. 
 the turn-table cases, 145, 212-217, 
 
 See Turn-table Cases. 
 cattle as, 228. 
 
 See Animals; Railway Companies; Fences. 
 upon the highway, 265. 
 
 See Highways. 
 
5IO GENERAL INDEX. 
 
 TRESP A SS —continued. 
 
 upon street railway property, 299, 308. 
 drunkeness on the part of one who is a trespasser, 392-394. 
 TURN-TABLE CASES, children trespassing on railway property, 
 playing on, or about turn-tables, 148, 212-217. 
 a qualification of the rule that trespassers act at their peril, 
 212-215. 
 TURNPIKES. See Highways, &c. 
 
 VARIANCE between scholastic theory and modem practice as to 
 
 the law of negligence, 3. 
 VERMONT, negligence of a parent not to be imputed to an in- 
 fant plaintiff, in, 137. 
 the Massachusetts rule as to Sunday traveling and injuries 
 
 upon the highway, obtains in, 188, 189, 275. 
 fences, and cattle at large, in, 224, 235, 237. 
 right of an owner of land to use and enjoy his property, how 
 qualified by the presence of a railway track, in, 246, 248. 
 liability of a municipal corporation for injury to a runaway 
 
 horse from a defective highway, in, 256, 262. 
 burden of proof in, 432, 447-449. 
 VICE-PRINCIPALS, are not fellow-servants, 331. 
 
 who are, 333. 
 VIOLATION OF A CITY ORDINANCE, not per se contributory 
 negligence, nor a defense to an action against the 
 towBR 49. 
 VIRGINIA, negligence of a parent not to be imputed to an infant 
 plaintiff, in, 137. 
 fences, and cattle at large, in, 230. 
 
 right of an owner of land to use and enjoy his property not 
 qualified by the presence of a railway track, in, 245, 
 248. 
 overhead railway bridges, etc., too low for safety, lawful 
 structures, in, 363, 364. 
 VOLUNTARY EXPOSURE TO DANGER, not necessarily neg- 
 ligence, 39, 40. 
 VOLUNTEERS, duty of an employer to, who assist his employees, 
 
 347-349- 
 when they are, and when they are not, fellow-servants, 347- 
 
 349- 
 
 See Co-servant. 
 
GENERAL INDEX. $11 
 
 WAIVER OF A RIGHT OF ACTION, express or implied, 16-18. 
 when there is held to be a, on the part of a servant, 371- 
 
 373- 
 
 See Master and Servant. 
 
 should employees be allowed to contract themselves out of 
 the operation of statutes imposing additional liability 
 upon employers, 383-385. 
 
 WALKING UPON THE TRACK of a railway or street car com- 
 pany, 217, 299. 
 
 See Railway Companies ; Street Railway 
 Companies; Trespassers, &c. 
 WEST VIRGINIA, right of an owner, of land to use and enjoy 
 his property not qualified by the presence of a rail- 
 way track, in, 245, 248. • 
 fences, and cattle at large, in, 229. 
 burden of proof in, 432, 448. 
 WIFE, negligence of a husband, when imputed to a, 113, 114. 
 when not imputed, 284. 
 
 WILFUL NEGLIGENCE, contributory negligence not a defense 
 to actions for, 49, 50, 53. 
 
 not a scientific designation, 67. 
 
 statute in Kentucky providing for the recovery of punitive 
 damages in cases resulting in death from, 70, 100-102, 
 324- 
 WISCONSIN, the slightest want of ordinary care contributing proxi- 
 mately to the injury is a defense, in, 20, 21. 
 
 the rule of comparative negligence denied, in, 81. 
 
 contributory negligence of a driver of a private vehicle im- 
 puted to one riding with him, in, 113. 
 
 injuries at car windows, the rule in, 167-169. 
 
 one struck by a mail bag thrown from a train at a station, 
 in, 17s, 176. 
 
 fences, and cattle at large, in, 225, 235, 242. 
 
 right of an owner of land to use and enjoy his property not 
 qualified by the presence of a railway track, in, 246, 248, 
 
 liability of a municipal corporation 'for an injury to a runa- 
 way horse by reason of a defective highway, in, 256. 
 
 the Massachusetts rule as to Sunday traveling and injuries 
 upon the highway, criticised by the Supreme Court of 
 276-278. ' 
 
512 GENERAL INDEX. 
 
 WISCONSIN— f<7«A««<?(/. 
 
 statutory modification of the rule that exempts a master 
 from liabihty to one servant for the negligence of an- 
 other servant, in, 380. 
 burden of proof in, 432, 448. 
 WOMAN, same degree of care required of a, as of a man, 24, «., 
 
 270. 
 WRONG SIDE OF THE ROAD, plaintiff being upon, is not nec- 
 essarily a defense in an action for a>negligent in- 
 jury upon a highway, 49. 
 one may be on the, and yet be right, 293. 
 WYOMING, statutory modification of the rule that exempts a master 
 from liability to one servant for the negligence of 
 another servant, in, 381. 
 
 YACHT, injury to one sailing a, on Sunday in Massachusetts — an 
 application of the Sunday rule in that State, 274, «. 
 
 Whole Number op Pages. 560.