OJortt^U Ham Bt\^m\ Htbtary 
 
Cornell University Library 
 KF 1302.J76 
 
 A treatise on the negligence of municipa 
 
 3 1924 019 342 439 
 
Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/cletails/cu31924019342439 
 
BY THE SAlVtE AUTHOR. 
 
 A TREATISE ON THE CONSTRUCTION OF CONTRACTS. 
 
 In One Octavo Volume. Pbice $5.00. 
 
 lE^ This book fully treats of the interpretation of all 
 mercantile contracts. The principles set forth are applicable 
 everywhere, and the citation of authorities is general. The 
 entire subject of Pa/rol Evidence in Construction is system- 
 atically developed and classified under the subdivisions : 
 Explanatory, Supplementary, and Contradictory Parol. 
 
 For sale by all Law Booksellers. Sent, express prepaid, on 
 recent of price by the publishers, 
 
 BAKEB, V00RHI8 & CO., New Yoek. 
 
A TREATISE 
 
 ON THE 
 
 NEGLIGENCE 
 
 OF 
 
 MUNICIPAL CORPORATIONS. 
 
 BY 
 DWIGHT ARVEN JONES, 
 
 AUTHOR OF "THE CONSTRUCTION OF CONTRACTS.' 
 
 NEW YORK: 
 
 BAKER, VOORHIS & COMPANY. 
 1892. 
 
COFYKIGHT, 189a, BY 
 DWIGHT ARVEN JONES. 
 
 PRESS OF 
 
 EDWARD O, JENKINS' SOM, 
 
 NEW YOEH. 
 
PREFACE. 
 
 In the preparation of this book I have been much 
 influenced by the desire that, in some degree, it might 
 aid in unifying and systematizing the law of this 
 country upon the subject treated. I have discussed, there- 
 fore, at considerabk length some of the questions about 
 which our courts differ, and have endeavored to reach 
 the true principles underlying the decisions. 
 
 On this account, however, the many cases illustrative 
 of the general subject have not been neglected, but by 
 the collection and citation of numerous authorities — many 
 of them of recent date— my aim has been to make the 
 book useful for those who may wish to find here the law 
 of particular courts. And to more fully satisfy this wish I 
 have supplemented the text with quotations from recent 
 well-considered opinions, thus presenting much of the 
 judicial thought upon this subject in the exact language 
 of the judges. 
 
 Throughout the volume frequent references are made 
 to valuable text-books, but I desire particularly to ex- 
 press my obligation to Shearman and Redfield on Negli- 
 gence, and to Dillon on Municipal Corporations. In 
 citing: a text-book I refer to the edition of the work cur- 
 rent at this date ; and in the citation of cases, in many 
 instances, I have given one reference only on a particular 
 page, but have noted other reports of the same case in 
 the table of cases. 
 
 New York, June i, iSpa. , ^ -. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 INTRODUCTORY PRINCIPLES OF THE LAW OF NEGLIGENCE. 
 
 Page. 
 
 § I. What is negligence ; 
 
 2. Tiiree distinct features of definition 3 
 
 3. Nature of ihe duty to exercise care 4 
 
 4. Measure of care to be exercised 7 
 
 5. Importance of regarding tlie circumstances 8 
 
 6. Distinction between degrees of negligence 9 
 
 7. Failure to exercise reasonable care is breach of duty 11 
 
 8. Damage to whom the duty is owing 13 
 
 9. Damage must be justly attributable to breach of duty 14 
 
 10. Contributory negligence 15 
 
 CHAPTER II. 
 
 EARLY INSTANCES OF MUNICIPAL LIABILITY FOR NEGLI- 
 GENCE. 
 
 § 1 1. Importance of considering growth of doctrine 17 
 
 12. Municipalities under the Roman law 18 
 
 13. Corporations not ordinarily respon.sible for wrongs 19 
 
 14. Municipalities liable for cul^a of representatives 20 
 
 1 5. Early English law governing corporate wrongs 21 
 
 16. First instances of municipal liability for negligence 22 
 
 17. Importance of Chief-Justice Vaughan's statement 24 
 
 18. Further illustration of this liability 25 
 
 19. American law 26 
 
Viii TABLE OF CONTENTS. 
 
 CHAPTER III. 
 
 DUAL CHARACTER OF MUNICIPAL CORPORATIONS. 
 
 PAGE. 
 
 § 20: Definition of municipal corporation 29 
 
 21. Negligence cannot be imputed to the State 30 
 
 22. Divisional branches of State governments 31 
 
 23. Incorporated branches of a State government 32 
 
 24. Diverse duties of incorporated municipalities 33 
 
 25. Test for determining whether duty is governmental 35 
 
 26. Application of test 37 
 
 CHAPTER IV. 
 
 NO LIABILITY RESPECTING SOLELY GOVERNMENTAL DUTIES. 
 
 § 27. Nature of solely governmental duties 38 
 
 28. Instances of governmental duties : keeping the peace 39 
 
 29. Enforcing laws and ordinances 42 
 
 30. Preserving the public health 43 
 
 31 . Preventing destruction by fire 44 
 
 32. Punishing criminals ^nd wrong-doers 50 
 
 33. Caring for the poor 54 
 
 34. Educational work 58 
 
 35. Decision by municipality upon discretionary matters final 59 
 
 CHAPTER V. 
 
 LIABILITY FOR FAILING IN SOLELY MUNICIPAL DUTIES. 
 
 § 36. When a duty is solely municipal 68 
 
 37. General responsibility for violation of such duty 68 
 
 38. Liability as owner of real property 69 
 
 39. Duty to keep wharves in reasonably safe condition ... 71 
 
 40. Supplying water for compensation 74 
 
 41 . Other instances of municipal duties 76 
 
 CHAPTER VI. 
 
 LIABILITY FOR NEGLECTING MUNICIPAL DUTIES RELATING 
 TO GOVBrRNMENTAL AFFAIRS — HIGHWAYS. 
 
 § 42. Instances of municipal duties concerning governmental affairs. . . 78 
 
 43- Difference of opinion respecting duty to repair highways 79 
 
TABLE OF CONTENTS. IX- 
 
 PAGE. 
 
 I 44. Position of the New England courts 81 
 
 45- Hill V. Boston 81 
 
 46. Earliest English cases 85 
 
 47. Russell V. Men of Devon 86 
 
 48. Incorporated municipalities held liable for damages &S 
 
 49. Contradictory decisions regarding local boards 92 
 
 50. Conclusion from English authorities 96 
 
 CHAPTER VII. 
 
 AMERICAN AUTHORITIES AS TO COMMON-LAW LIABILITY 
 FOR NEGLECT TO REPAIR HIGHWAYS. 
 
 § 51. Statement as to American authorities g8 
 
 52. United States Supreme Court upholds right of action 99 
 
 53. State courts holding neglect to repair actionable 100 
 
 54. State courts holding Massachusetts doctrine 105 
 
 55. Law of State followed by United States courts 107 
 
 56. Courts denying right of action are inconsistent ; . 109 
 
 57. Rule that action will lie supported by the weight of authority no 
 
 58. Rule of hability also supported by principle no 
 
 CHAPTER Vni. 
 
 EXTENT OF LIABILITY FOR NEGLECT TO REPAIR HIGH- 
 WAYS. 
 
 § 59. Distinction between corporation and j'w^j'z-corporation 113 
 
 60. Liability should attach to every public body 116 
 
 61. Distinct corporate body must have control 117 
 
 62. English decisions sustain rule that every corporate body is 
 
 liable , 119 
 
 63. Certain American authorities not applicable to this question 119 
 
 64. Other authorities not sustaining broad distinctions 120 
 
 6<^. States holding involuntary corporations liable 12a- 
 
 66. States where duty does not rest upon a municipality 124 
 
 67. States admitting liability of cities, but denying that of counties. , la? 
 
 68. Conclusion from authorities 129 
 
 69. Further treatment of subject 129 
 
X TABLE OF CONTENTS. 
 
 CHAPTER IX. 
 
 DUTIES OF MUNICIPAL CORPORATIONS RESPECTING STREETS 
 
 AND ROADS. 
 
 PAGE. 
 
 § 70. Definition of street and road 130 
 
 71. Duty at common law and by statute not the same. . 131 
 
 72. Common-law duty of municipalities respecting streets and roads .. 131 
 
 73. Essential that way should be public 133 
 
 74. Control, how shown 133 
 
 75. How far want of funds excuses failure to repair 136 
 
 76. Reasonable care varies with circumstances 143 
 
 77. Entire width of city street to be safe for travel 144 
 
 78. Sufficient width for ordinary use to be open in country 146 
 
 CHAPTER X. 
 
 DUTIES RESPECTING STREETS AND ROADS, CONTINUED. 
 
 § 79. Permissible obstructions in highways 148 
 
 80. Unnecessary and dangerous obstructions 150 
 
 81. Holes and excavations 153 
 
 82. Slippery objects in streets 155 
 
 83. Excavations and embankments adjoining streets 156 
 
 84. Objects frightening horses 160 
 
 85. Obligation to light streets 163 
 
 86. Damages arising from the granting of licenses 164 
 
 87. Charter exemptions from liability 167 
 
 CHAPTER XI. 
 
 DUTIES IN RESPECT TO SIDEWALKS. 
 
 j 88. Statement of general duty 172 
 
 89. Extent of obligation 17^ 
 
 90. To whom duty is owing 176 
 
 91. Necessary obstructions on sidewalks 170 
 
 92. Defective construction j g2 
 
 93. Defects in the walk jg. 
 
 94. Authorities to examine for latent defects 187 
 
 95. Dangerous descents from sidewalks 188 
 
 96. Dangerous defects near sidewalks igo 
 
 97. Injuries from falling objects iq. 
 
TABLE OF CONTENTS. XI 
 
 CHAPTER XII. 
 
 SNOW AND ICE ON STREETS AND SIDEWALKS. 
 
 PAGE. 
 
 § 98. Duty respecting snow in streets or roads 195 
 
 99. Various views of ice on sidewalks 196 
 
 100. Difference of opinion in part due to locality 196 
 
 loi. Corporation must be negligent to be liable 197 
 
 102. Rule that mere slipperiness is not sufficient to create liability 200 
 
 103. Ice in ridges 203 
 
 104. Structural defects 205 
 
 105. Provisions in statutes affecting liability 207 
 
 CHAPTER Xni. 
 
 BRIDGES NEGLIGENT CONSTRUCTION. 
 
 106. Meaning of word bridge 209 
 
 107. Neglecting statutory duty to build 211 
 
 108. Special duties respecting bridges over navigable streams 212 
 
 109. Duties during construction 212 
 
 no. Warning the public 213 
 
 111. Preventing special damage from negligence in the work 214 
 
 112. Building to withstand ordinary storms ." 217 
 
 113. Providing a reasonably safe passageway for the public 217 
 
 114. Necessity of railings 219 
 
 115. Defects in the plan 219 
 
 CHAPTER XIV. 
 
 BRIDGES — NEGLECT TO REPAIR. 
 
 § 1 16. Control of bridges under the common law 223 
 
 117. Who controls bridges in the United States 223 
 
 118. Statement of general duty at common law 225 
 
 1 19. Duty exists whoever builds, if corporation in control 226 
 
 1 20. Duty where control is divided 227 
 
 121. Defects in bridges 231 
 
 122. Examination for decay 233 
 
 123. Special duties respecting draw-bridges 235 
 
 124. Want of funds to repair 235 
 
 125. Extent of common-law liability for neglect to keep highways in 
 
 repair. . , ,,..,..,, 236 
 
Xn TABLE OF CONTENTS. 
 
 CHAPTER XV. 
 
 STATUTORY LIABILITY FOR NEGLECTING HIGHWAYS. 
 
 PAGE, 
 
 § 1 26. Scope of chapter 237 
 
 127. Distinctive features of statutory liability 238 
 
 128. Liability in Massachusetts 239 
 
 129. Maine.... 244 
 
 130. New Hampshire 246 
 
 131. Vermont 249 
 
 132. Connecticut 250 
 
 133. New Jersey 252 
 
 134. Rhode Island 257 
 
 135. Michigan 258 
 
 136. Wisconsin 261 
 
 1 37. South Carolina, West Virginia, etc 262 
 
 138. Notice of injury 263 
 
 CHAPTER XVI. 
 
 NEGLIGENCE IN MAKING PUBLIC IMPROVEMENTS. 
 
 § 139. Corporation to exercise reasonable care in all works 264 
 
 140. Governmental questions before commencing work 266 
 
 141. Negligence in plan 267 
 
 142. Liability for positive injur>' even if caused by plan 269 
 
 143. Direct injury from collecting surface water 269 
 
 144. Direct injury from sewage 272 
 
 145. Liability if unsafe work results from plan 275 
 
 146. Grading to be done with care 280 
 
 147. Erecting public buildings 282 
 
 148. Other instance of negligence in public work 284 
 
 CHAPTER XVn. 
 
 NEGLIGENCE AS OWNERS OR MANAGERS OF PROPERTY. 
 
 > 149. Principal question for discussion , 287 
 
 150. Position taken on question , 287 
 
 151. Leading English authorities a88 
 
TABLE OF CONTENTS. XIU 
 
 PAGS. 
 
 § 1 52, Particular authorities applicable tp question 294 
 
 153. Neglect to repair drains and sewers 295 
 
 154. Distinction between neglect of sewers and neglect of highways.. 297 
 
 155. Control by corporation essential 301 
 
 156. Examinations to be made 302 
 
 157. Duty as owner of public buildings , 303 
 
 158. Authorities holding municipalities liable for defects on public 
 
 buildings 305 
 
 1 59. Defects in county buildings 306 
 
 160. Duty as owner of other public property 307 
 
 CHAPTER XVIIL 
 
 RESPONDEAT SUPERIOR. 
 
 161. Municipal corporations liable for negligence of servants 312 
 
 162. Corporate duty must be violated 313 
 
 163. Independent public officers 313 
 
 164. Independent boards for public work 315 
 
 165. Test of municipal liability for acts of public boards 317 
 
 166. Method of appointment not decisive 320 
 
 167. Liability for negligence of contractors .■ 322 
 
 168. When contractors are alone liable 324 
 
 169. Acts of subordinates to be within scope of authority 328 
 
 170. Defense of co-employment 329 
 
 171. Action over by municipality 334 
 
 CHAPTER XIX. 
 
 NEGLIGENCE RESPECTING ULTRA VIRES ACTS. 
 
 I 172. General rule 336 
 
 173. Rule not satisfactory 338 
 
 174. If act within general power liability established 338 
 
 175. Municipality should be liable if acts authorized 341 
 
 176. Distinction between acts under contract and in tort 341 
 
 177. Effect of United States Court decision 343 
 
 178. Other authorities asserting responsibility 345 
 
 179. Authorities supporting general rule 346 
 
 180. Protection from negligence of employees 349 
 
 181. Action against negligent officers 349 
 
 182. Want of power excuses non-action 350 
 
xiV TABLE OF CONTENTS. 
 
 CHAPTER XX. 
 
 NOTICE. 
 
 PAGE. 
 
 183. Twofold character of negligence of municipal corporations 353 
 
 184. Necessity of notice • 352 
 
 185. Negligent failure to act 354 
 
 186. Actua,! notice 354 
 
 187. To whom notice should be given 357 
 
 188. Constructive notice 359 
 
 189. Notice not implied unless failure to exercise reasonable care 360 
 
 190. Duty of examination '. 366 
 
 191. Notice of defects caused by snow and ice 370 
 
 1 92. Notice of defect distinguished from notice of injury 370 
 
 CHAPTER XXI. 
 
 PROXIMATE CAUSE. 
 
 193. Damage must be justly attributable to negligence to allow 
 
 recovery 372 
 
 194. When damage results from negligence 373 
 
 195. Principles applicable to municipal corporations 377 
 
 196. Accidents upon highways when horses beyond control 377 
 
 197. When defect in street proximate cause .. 380 
 
 198. Effect of statutes imposing liability 384 
 
 199. When defect in street not proximate cause 385 
 
 300. Authorities relating to sidewalks 387 
 
 201. Authorities relating to bridges 391 
 
 202. Injury must result from negligence 392 
 
 203. When increased damage is attributable to original negligence. . 394 
 
 204. Whether negligence is proximate cause for jury 396 
 
 205. Contributory negligence a branch of this subject 397 
 
 CHAPTER XXn. 
 
 CONTRIBUTORY NEGLIGENCE, 
 
 i 206. Theory of contributory negligence as a defense 399 
 
 307. Examination of facts and circumstances 400 
 
 208. No degrees of contributory negligence 402 
 
 209. Frequency of defense by municipalities in highway cases ... 404 
 
 210. Doctrine of identification overthrown 405 
 
TABLE OF CONTENTS. XV 
 
 PAGE. 
 
 211. Contradictory views in regard to imputing negligence of parents 
 
 to young children 408 
 
 212. New York decisions 409 
 
 213. Other States holding New York view 41 1 
 
 214. Contrary view held in Vermont 412 
 
 21 5. Recent consideration of question in New Jersey 413 
 
 216. Recent decisions in Illinois 415 
 
 217. Tendency of law toward allowing action 418 
 
 2i8. No action by negligent parent 422 
 
 CHAPTER XXIII. 
 
 CONTRIBUTORY NEGLIGENCE, CONTINUED. 
 
 ) 219. General duty of person using highway 423 
 
 220. Rule applied to persons without full power 425 
 
 221. Effect of knowledge of danger 426 
 
 222. Question generally for jury. 430 
 
 223. Dangerous bridge 433 
 
 224. What is not contributory negligence 434 
 
 225. Sunday travel 436 
 
 226. Improper driving 439 
 
 227. Deviation from the highway 441 
 
 228. Whether there is contributory negligence usually for jury 441 
 
 CHAPTER XXIV. 
 
 EVIDENCE. 
 
 § 229. Questions of practice and pleading local 444 
 
 230. General features of plaintift's case 446 
 
 231. Proof that damage is proximate cause of defendant's negligence. 447 
 
 232. Necessity of distinguishing inquiries 448 
 
 233. Two propositions settled by weight of authority 449 
 
 234. Recent English authority 450 
 
 235. United States Supreme Court decisions 451 
 
 236. Other authorities holding burden is on defendant 453 
 
 237. Plaintiff must exclude his own negligence as a proximate cause. 454 
 
 238. Burden on plaintiff in some localities 457 
 
 239. Rule in New York 459 
 
 240. Divergence in facts accountable for various rulings 461 
 
 241. Functions of judge and jury 466 
 
 242. Proof of similar accidents 475 
 
 243. Proof of repairs after accident 481 
 
 244. Proof of condition elsewhere 486 
 
 245. General features of defendant's case 488 
 
XVI TABLE OF CONTENTS. 
 
 CHAPTER XXV. 
 
 DAMAGES. 
 
 PAGE. 
 
 § 246. Imposing damages main punishment for negligence 490 
 
 247. Damages to be reasonable result of negligence 491 
 
 248. Exemplary damages 492 
 
 249. Actions for personal injuries 495 
 
 25a Loss of time and expenses of illness 497 
 
 251. Decrease in capacity to work 500 
 
 252. Bodily disfigurement and pain 503 
 
 253. Mental suffering 507 
 
 254. Injury from fright 509 
 
 255. Aggravating damage by negligence , 515 
 
 256. Physician's negligence 517 
 
 257. Action for death ^ig 
 
 258. Action for loss of service of another 522 
 
 259. Action for injuries to property 525 
 
 260. Evidence of damages 528 
 
 261. Excessive damages 53c 
 
 262. Limitations 536 
 
TABLE OF CASES. 
 
 [^References are to pages. ^ 
 
 Aaron v. Broiles (64 Tex. 316, 53 
 
 Am. Rep. 764), 44. 
 Abbett V. Chicago, etc. Ry. Co. (30 
 Minn. 482, 16 N. W. 
 266), 467. 
 V. Johnson County Com. (114 
 Ind. 61, i6 N. E. 127), 
 127. 
 Abernethy v. Van Buren (52 Mich. 
 
 383, 18 N. W. 1 16), 232. 
 Abilene v. Hendricks (36 Kas. 196), 
 
 477- 
 Acker v. Anderson (20 S. C. 495), 
 
 365, 392- 
 Adams v. Chicopee (147 Mass. 440, 
 18 N. E. 231), 200, 370. 
 V. Glasgow, etc. Ry. Co. (3 
 Court Sess. Cas. 4th Ser. 
 215), 407. 
 V. Iron Cliffs Co. {78 Mich. 
 271, 44 N. W. 270), 432, 
 472. 
 V. Missouri Pacific Ry. Co. 
 (100 Mo. 55, 13 S. W. 
 509), 504. 
 V. Natick (95 Mass. [13 Al- 
 len] 429), 156, 378. 
 V. Oshkosh (71 Wis. 49, 36 
 
 N. W. 614), 151, 262. 
 V. Wiscasset Bank (l Or. 
 [Me.] 361, 10 Am. Dec. 
 88), 82, 118. 
 Adamson v. River Wear Com. (L. 
 
 R. 2 App. Cas. 743), 373. 
 Adsit V. Brady (4 Hill [N. Y.] 630, 
 
 40 Am. Dec. 305), 141. 
 Agawam v. Hampden (i 30 Mass. 528), 
 
 230. 
 Agnew V. Carunna (55 Mich. 428, 54 
 Am. Rep. 383, 21 N. W. 873), 61. 
 148, 1 53, 160, 260, 379. 
 Ahem v. Steel (115 N. Y. 203, 5 L. 
 R. A. 449, 29 N. E. 193), 71. 
 
 Ainley v. Railway Co. (N. Y.) (47 
 
 Hun 206), 522. 
 Alabama, etc. R. Co. v. Hill (Ala.) 
 
 (9 So. Rep. 722), 505. 
 Alabama, etc. R. Co. v. Jones (71 Ala. 
 
 487), 467. 
 Alaniango v. Albany County (N. Y. ) 
 
 (25 Hun 551), 50. 
 Albany v. Cunliffe (2 N. Y. 165), 337, 
 
 340. 347- 
 Albee v. Floyd Co. (46 la. 177), 220, 
 
 231. 
 Albertson v. Keokuk, etc. R. Co. (48 
 
 la. 294), 420. 
 Albrittin v. Huntsville (60 Ala. 486, 
 31 Am. Rep. 46), 102, 138, 141, 362. 
 Alcorn v. Chicago, etc. R. Co (16 S. 
 W. Rep. 229), 485. 
 V. Philadelphia (44 Pa. 348), 
 328. 
 Alden v. Minneapolis (24 Minn. 254), 
 
 272, 280. 
 Aldrich v. Gorham (77 Me. 287), 105, 
 
 • 191. 379. 385- 
 V. Pelham (67 Mass. [i Gray] 
 
 510), 478. 
 V. Tripp (II R. I. 141, 23 
 Am. Rep. 434). 75- 
 Aldworth v. Lvnn (i 53 Mass. 53, 26 
 
 N. E. 229), 284. 
 Alexander v. Big Rapids (76 Mich. 
 282, 42 N. W. 1071), 
 284. 
 V. New Castle (11 5 Ind. i, 
 
 17 N. E. 200), 386. 
 V. Oshkosh (33 Wis. 283), 
 
 3SS- 
 V. Vicksburgh (68 Miss. 
 564, 10 So. Rep. 62), 
 46. 
 Alger V. Easton (119 Mass. 77), 311. 
 V. Lowell (85 Mass. [3 Allen] 
 402), 156, 191, 433. 
 
XVIU 
 
 TABLE OF CASES. 
 
 rRe/t'-enea 
 are to pages. 
 
 Allegheny City v. Campbell (107 Pa. 
 530, 52 Am. Rep.. 478), 
 
 73. 327, 528- 
 
 County V. Broadwaters (69 
 
 Md. 533, 16 
 
 Atl. Rp. 233), 
 
 192, 433, 434- 
 
 V. Gibson (90 Pa. 
 
 397, 35 Am. 
 
 Rep. 670;, 41. 
 
 Allen V. Chippewa Falls (52 Wis. 430, 
 
 38 Am. Rep. 748, 9 N. W. 
 
 284), 217, 271. 
 
 V. Hayward (7 Q. B. 960), 273, 
 
 324- 
 V. Willard (57 Pa. 374), 327. 
 Alline V. Le Mars (71 la. 654, 33 N. 
 
 W. 160), 192. 
 Allison V. IVliddletown (101 N. Y.667, 
 
 5 N. E. 334), 206. 
 Alloway v. Nashville (88 Tenn. 510, 
 
 13 S. W. 123), 528. 
 A'.pern v. Churchill (53 Mich. 607, 19 
 
 N. W. 14s), 447. 
 Altnow V. Sibley (30 Minn. 186, 14 
 
 Am. Rep. 191, 14 N. W. 877), 128. 
 Alton V. Hope (68 III. 167), 60. 
 Ahoona v. Lotz (i 14 Pa. 238, 60 Am. 
 
 Rep. 346, 6 Cent. Rep. 135), 427. 
 Altvaterv. Baltimore (31 Md. 462), 39. 
 American Print Works v. Lawrence 
 
 (23 N. J. L. 591, 57 Am. Dec. 420), 
 
 45. 
 Anderson v. East (117 Ind. 126, 2 L. 
 R. A. 325, 19 N. E. 
 726), 61, 102, 194. 
 V. Wilmington (Del.) (lo L. 
 R. A. 181, 19 Atl. 509), 
 102, 200, 272. 
 Andrews v. Durant (18 N. Y. 496), 
 
 526. 
 Anne Arundel Co. v. Diwall (54 Md. 
 350, 39 Am. 
 KeP- 393). 
 317. 
 V. Duckett (20 
 Md. 468, 83 
 Am. Dec. 
 « , . 557). 122. 
 
 Anthony V. Adams (42 Mass. [i Met.] 
 
 284), 26, 48, 83, 337. 
 Apple V. Marion County (127 Ind. 
 
 553- 27 N. E. 166), 233. 
 Appleton V. Water Com. (N. Y.) (2 
 
 Hill 432), 320. 
 Arey v. Newton (148 Mass. 598, 20 
 N. E. 327), 150, 441. 
 
 Argus V. Sturgis (Mich.) (48 N. W. 
 
 Rep. 1085), 427. 
 Arkadclphia v. Windham (49 Ark. 
 
 139, 4 Am. St. Rep. 32, 4 S. W 
 
 450), 105, 128. 
 Armstrong v. Ackley (71 la. "](>, 32 
 
 N. W. 180), 185, 357. 487. 
 Armstrong- v. Brunswick (79 Mb.319;, 
 
 43. 307- 
 V. Lancashire, etc. Ry. Co. 
 (L. R. loEx.47),407. 
 Am V. Kansas City (14 Fed. Rep. 
 
 236), 272. 
 Arnold v. Henry County (81 Ga. 730, 
 8 S. E. 606), 126. 
 V. San Jose (81 Cal, 618, 22 
 Pac. 1877), 105. 
 Arundel v. McCuUoch (10 Mass. 70), 
 
 212. 
 Ashby V.White (2 Ld. Raym. 938),4p6. 
 Ashley v. Port Huron (35 Mich. 296, 
 
 24 Am. Rep. 552), 49, 270, 272, 295. 
 Askew V. Hale County (54 Ala. 639, 
 
 25 Am. Rep. 730), 126, 329. 
 Aston V. McClure (102 Pa. 322), 134. 
 
 V. Newton (134 Mass. 507, 45 
 Am. Rep. 347), 147, 160. 
 Atchison v. Challiss (9 Kas 603), 272, 
 280. 
 V. Jansen (21 Kas. 560), 187. 
 V. King (9 Kas. 550), 103. 
 V. Twine (9 Kas. 350), 41. 
 etc. R. Co. V. McGinnis (26 
 
 Pac. Rep. 453), 514. 
 etc. R. Co. V. Smith (28 Kas. 
 541), 412, 419. 
 Atkinson v. Atlanta (81 Ga. 625, 7 S. 
 
 E. 693), 280. 
 Atlanta v. Alexander (80 Ga. 637, 6 
 S. E. 25), 185. 
 V. Buchanan {;](> Ga. 585), 192, 
 
 231. 
 V. Champe (65 Ga. 659), 187, 
 
 231, 366. 
 V. Perdue (53 Ga. 607), 187. 
 V. Wilson (59 Ga. 544), 102. 
 Attwood V. Bangor (83 Me. 582, 22 
 
 Atl. 466), 274. 
 Atty.-Genl. v, Basingstoke (45 L. J. 
 Ch. 729), 296. 
 V. Birmingham (4 Kay & 
 
 J. 528), 275. 
 V. Cohoes Co. (6 Paige 
 133, 29 Am. Dec. 
 755). 180. 
 V. Dorking Union (L. R. 
 20 Ch. Div. 595), 60. 
 
Re/fences ~| 
 are to pagis.S 
 
 TABLE OF CASES. 
 
 XIX 
 
 Atty.-Genl. v. Luton Local Board (2 
 
 Jur. N. S. 180), 275. 
 Auckland v. Westminster Local Board 
 
 (L. R. 7 Ch. 597), 45. 
 Augusta V. Hafers (69 Ga. 151), 189. 
 V. Hafers (61 Ga.48, 34 Am. 
 Rep. 95), 477. 
 Aurora v. Bitner (loo Ind. 396), 154, 
 
 174- 
 V. Brown (12 111. App. 122), 
 
 477. 
 V. Colshire (55 Ind. 484), 
 
 135- 
 V. Hillman (90 111. 6l), 357, 
 
 362, 435- 
 V. Love (93 111. 521). 273. 
 V. Parks (21 111. App. 459), 
 200. 
 Austin V. Emanuel (74 Tex. 621, 12 
 S. W. 318), 220. 
 V. New Jersey, etc. Co. (43 N. 
 Y. 75, 3 Am. Rep. 663), 
 401. 
 V. Ritz (72 Tex. 391, 9 S. W. 
 884), 104. 
 Avery v. Syracuse (^N. Y.) (29 Hun 
 
 537). 477- 
 Ayer v. Norwich (39 Conn. 376, 12 
 
 Am. Rep. 396), 160, 252. 
 Ayers v. Hammonrlsport (130 N. Y. 
 
 665, 29 N. E. 26s, 45 Alb. L. J. 
 
 132), 207. 
 
 Babbage v. Powers (130 N. Y. 281, 
 
 45 Alb. L. J. 156), 154, 175- 
 Babcock v. New York (56 Hun 196), 
 
 263. 
 Bacon v. Charlton (61 Mass. [7 Cush.] 
 
 586), 505. 
 Bagley v. Ludlow (41 Vt. 434), 158. 
 V. People (43 Mich. 355, 38 
 Am. Rep. 192, 5 N. W. 
 41 SJ, 260. 
 Bahr v. Lombard (53 N. J. L. 233, 21 
 
 Atl. 190), 446. 
 Bailey v. New York (3 Hill 531, 38 
 Am.Dec.669),74, 75, 84, 
 128, 316, 439. 
 V. Spring Lake (61 Wis. 230, 
 20 N. W. 920), 35S, 356. 
 V. Trumbull (31 Conn. 581), 
 358. 
 Baird v. Daly (68 N. Y. 547), 479- 
 Baker v. Boston (29 Mass. 184, 22 
 Am. Dec. 421), 27. 
 V. Madison (56 Wis. 374, 14 
 N.W. 289), 153, 155. 
 
 Baker v. Madison (62 Wis. 137, 22 
 N. W. 141, 583), 505. 
 v. Manhattan R. Co. (118 N. 
 
 Y. 533). 499- 
 
 V. Portland (58 Me. 199, 4 
 
 Am. Rep. 274), 437. 
 
 Baldwin v. Barney (12 R. I. 392, 34 
 
 Am. Rep. 670), 438, 440. 
 
 V. Oswego ("2 Keyes [N. Y.] 
 
 132). 329- 
 Ball V. Woodbine (61 la. 83, 47 Am. 
 
 Rep. 805, IS N. W. 846), 43. 
 Ballaid v. Tomlinson (L. R. 29 Ch. 
 
 Div. 115), 369. 
 Ballow V. Farnum (93 Mass. [11 
 
 Allen] 73), 49g, 502. 
 Baltimore v. Marriott (9 Md. 160), 103, 
 203. 
 V. Musgrave (48 Md. 272, 
 30 Am. Rep. 458), 328. 
 V. O'Donnell (53 Md. iict, 
 36 Am. Rep. 395), 164, 
 194, 223, 224. 
 V. O'Neill (63 Md. 336), 
 
 49- 
 V. Pennington (15 Md. 
 
 12), 154. 
 V. Poultney (25 Md. 107), 
 
 41. 
 County V. Barker (44 Md. 
 
 I), 122. 
 etc. R. Co. V. First Baptist 
 Church (108 U. S. 317, 
 28 Am. &. Eng. C. C. 
 
 3SI- 
 etc. R. Co. V. McDonnell 
 
 (43 Md. 534), 412. 
 etc. R. Co. V. Walborn, 
 
 1 27 Ind. 142), 467, 473. 
 etc. Turnpike v. State (71 
 Md.573.iSAtl.S84),233. 
 Barbee v. Reese (60 Miss. 906), 514. 
 Barber v. Abendroth (102 N. Y. 406, 
 55 Am. Rep. 821, 7N.E. 
 417), 72, 74. 
 V. Merriam (93 Mass. [ 1 1 Al- 
 len] 322), 505. 
 V. Police Jury (15 La. Ann. 
 
 557). 212. 
 V. Roxbury (93 Mass. 318), 
 194. 
 Barbour v. Ellsworth (67 Me. 294), 
 44. 316, 337. 
 Co. V. Horn (48 Ala. 566), 
 495. 528. 
 Bardwell v. Jamaica (15 Vt. 438), 
 220, 520. 
 
XX 
 
 TABLE OF CASES. 
 
 CRe_ferences 
 are to pages. 
 
 Barker v. Hannibal, etc. Railroad Co. 
 
 (Mo.) (37 Am. & Eng.R. 
 
 Cas. 292), 14. 
 V. Perry (67 la. 146), 362. 
 V. Worcester (139 Mass. 74, 
 
 29 N. E. 474), 241, 437. 
 Barnes v. Chicopee (138 Mass. 67, 52 
 
 Am. Rep. 259), 156, 192. 
 V. District of Columbia (91 U. 
 
 S. 540, 556), 84, 100, 132, 
 
 164, 267, 318, 321. 
 V. Newton (46 la. 567), 103, 
 
 187. 
 V. Sowden (119 Pa. St 53, 12 
 
 At). 804), 423, 473. 
 V. Worcester (138 Mass. (>•]), 
 
 159- 
 Dumping Boat Co. v. New 
 York (40 Fed. Rep. 50), 
 318. 
 Barney v. Lowell (98 Mass. 570), 298, 
 
 316. 
 Barr v. Kansas City (105 Mo. 550, 16 
 
 s. w. 483), 144, 154, 175.353- 
 
 Barry v. Lowell (90 Mass. [8 Allen] 
 
 127), 273. 
 Barstow v. City of Berlin (34 Wis. 
 
 357). 381- 
 Bartlett v. Cabot (54 Vt. 242), 250. 
 
 V. Crozier (17 Johns. R. [N. 
 Y.]438,8Am.Dec. 428), 
 26, lOI. 
 V. Hooksett (48 N. H. 18), 
 
 160. 
 V. Kittery (68 Me. 358), 246. 
 Barton v. McDonald (81 Cal. 265, 22 
 Pac. 885), 335. 
 V. Montpelier (30 Vt. 650), 
 
 136. 
 V. Springfield (no Mass. 131), 
 
 429. 
 V. Syracuse (36 N. Y. 54), 
 275, 295. 
 Bassett v. Fish (75 N. Y. 303), loi. 
 
 V. St. Joseph (53 Mo. 290, 14 
 Am. Rep. 446), 103, 145, 
 147, 154, 192, 232,283. 
 Bastable v. Syracuse (8 Hun 587, 72 
 
 N. Y. 64), 278. 
 Bates V. Rutland (62 Vt. 178), 162. 
 V. West borough (151 Mass. 174, 
 7 L. R. A. 156, 23 N. E. 
 1070), 275, 283, 298, •^14. 
 Bathurst v. Macpherson (L. R. 4 
 App. Cas 256), 88, 89, 95, 96, 296. 
 Battersby v. New York (7 Daly 16), 
 19s. 
 
 Battishill V.Humphreys (64 Mich. 494, 
 
 31 N. W. 894, 28 Am. and Eng. 
 
 R. Cas. 597), 418, 419. 
 Bauer v. Rochester (35 N. Y. St. Rep. 
 
 959, 12 N. Y. Supp. 418), 149, 151, 
 
 164. 
 Bauman v. Campau (58 Mich. 444, 25 
 
 N. W. 371), 60. 
 Beach v. Elmira (N. Y.) (22 Hun 158), 
 278. 
 V. Leahy (11 Kas. 23), 128. 
 Beall V. Athens (Mich.) (45 N.W. Rep. 
 
 IOI4), 377. 
 Beandeau v. Cape Girardeau (71 Mo. 
 
 480), 103, 134, 192. 
 Beardsley v. Hartford (50 Conn. 529, 
 
 47 Am. Rep. 677,4 Am. & Eng. 
 
 C. C. 595), 105, 155, 188, 252. 
 Beazan v. Mason City (58 la. 233, 12 
 
 N. W. 279), 103, 187. 
 Becht V. Corbin (92 N. Y. 658), 465. 
 Beck V. Railroad Co. (Mo.) (13 S. W. 
 
 Rep. 1053, 9 L. R. A. 157), 407. 
 Beckwith v. Whalen (70 N. Y. 430), 
 
 134, 230. 
 Beecher V. People (38 Mich. 291,31 
 
 Am. Rep. 316), 260. 
 Beer Co. v. Massachusetts (97 U. S. 
 
 25), 207. 
 Beers v. Arkansas (20 How. [U. S.] 
 
 527), 31- 
 Beisiegel v. New York Central, etc. 
 R. Co. (40 N. Y. 10), 
 499- 
 V. Sevmour (58 Conn. 43, 19 
 
 T, „ ^ ''^*'- 372). 252. 
 
 Bell V. Great Northern Ry. Co. (26 
 L. R. Ir. 428), 510. 
 V. West Point (51 Miss. 262), 103. 
 V. York (Neb.) (48 N. W. Rep. 
 878), 200. 
 Bellefontaine, etc. R. Co. v. Snyder 
 (18 Ohio St. 408, 98 Am. Dec. 175), 
 419, 420. 
 Belton V. Baxter (54 N. Y. 245, 13 
 
 Am. Rep. 578)-, 434. 
 Belvin v. Richmond (85 Va. 574, 8 S. 
 
 E. 378), 151, 153, 187. 
 Bemis v. Arlington (i 14 Mass. 507), 
 
 i6r, 385. 
 Bendlows v. Kemp (Viner's Abridge 
 
 P-). 23. 
 Benedict v. Fond du Lac (44 Wisi 
 495). 488. 
 V. State (105 N. Y. 229), 77. 
 Benjamin v. Wheeler (74 Mass. [8 
 Gray] 409), 29S. 
 
References I 
 are topLiges.\ 
 
 TABLE OF CASES. 
 
 XXI 
 
 Bennett V. Fifield (13 R. I. 139, 43 
 
 Am. Rep. 17), 160, 258. 
 
 V. Lovell (12 R. I. 166, 34 
 
 Am. Rep. 628), 160. 
 V, New Orleans (14 La. Ann. 
 
 120), 304. 
 V. N. J. Trans. Co. (36 N. J. 
 L. 225, 13 Am. Rep. 
 43S). 407. 
 V. New York, etc. Railroad 
 Co. (40 N. Y. St. Rep. 
 948, 16 N. Y. Supp. 
 765), 407- 
 V. Railroad Co. (loa U. S. 
 
 577). 7. 
 V. Sing Sing, (38 N. Y. St. 
 Rep. 347, 14N.Y.SUPP. 
 463). 154- 
 V. Syndicate Ins. Co. (39 
 Minn. 254), 473. 
 Benton v. Boston City Hospital (140 
 Mass. 13, I N. E. 836), 44, 216, 
 282. 
 Benware v. Pine Valley (53 Wis. 527, 
 
 10 N. W. 695), 262, 356. 
 Bergen County Freeholders v. State 
 
 (42 N. J. L. 263I, 255. 
 Berger v. Jacobs (21 Mich. 215), 522. 
 Berkeley Peerage Case (4 Camp. 401), 
 
 506. 
 Berrenberg v. Boston (137 Mass. 231, 
 
 50 Am. Rep. 296), 487. 
 Betts V. Gloversville (29 N. Y. St. Rep. 
 
 331), 182, 198. 
 Bidelman v. State (no N. Y. 232, 18 
 
 N. E. 1 1 5), 224. 
 Bieling v. Brooklyn (120 N. Y. 98), 
 
 loi, 169, 193. 
 Bigelow V. Randolph (80 Mass. [14 
 
 Gray] 541), 58, 82, 128, 282, 298. 
 Biggs V. Huntington (32 W. Va. 55, 
 
 9 S. E. 51), 104, 192. 
 Billings V. Worcester (102 Mass. 329, 
 
 3 Am. Rep. 46o},j3o6, 388. 
 Billman v. Indianapolis R. Co. (76 
 
 Ind. 166, 40 Am. Rep. 230), 282. 
 Birkett v. Knickerbocker Ice Co. (i 10 
 N. Y. 504, 18 N. E. 108), 410, 422, 
 521. 
 Birmingham v. Lewis (Ala.) (9 So. 
 
 Rep. 243), 138, 190, 194. 
 Bishop V. Centralia(49Wis.669), 134, 
 226. 
 V. Goshen (120 N. Y. 337), 
 loi, 206. 
 Bissell V. Hopkins (4 N. Y. Cow. 53), 
 526. 
 
 Black V. Columbia (19 S. C. 412), 46, 
 
 106, 120, 313. 
 Blackmore v. Vestry, etc. (L. R. 9 Q. 
 
 B. D. 451), 95, 156. 
 Blair v. Pelharti (118 Mass. 420), 477. 
 V. Railroad Co. (89 Mo. 334, i 
 S. W. 367), 522. 
 Blake v. Ferris (5 N. Y. 48, 55 Am. 
 Dec. 304), 224. 
 V. LoAell (143 Mass. 296, 9 N. 
 
 E. 627), 357, 
 V. Newfield (68 Me. 365), 246. 
 V. St. Louis (40 Mo. 569), 103. 
 Blakely v. Devine (36 Minn. 53), 272. 
 V. Troy (N. Y.) (18 Hun 167), 
 206. 
 Blanchard v. Ayer (148 Mass. 174, 
 
 176, 19 N. E. 209), 298. 
 Blank v. Livonia '(Mich.) (44 N. W. 
 
 Rep. 1 57), 233. 
 Bleakley v. Presscott (Can.) (12 O. R. 
 
 637). 195- 
 Blessington V. Boston (15^ Mass. 409, 
 
 26 N. E. 1 1 13), 155, 242, 243. 
 Bliss V. South Hadley (145 Mass. 91, 
 5 N. E. 124), 240, 243. 
 V. Whitingham (54 Vt. 172), 250. 
 Blodgett V. Boston (90 Mass. [8 AUenJ 
 
 237, 241), 177, 247. 
 Blood V. Bangor (66 Me. 1 54), 299. 
 Bloom V. San Francisco (64 Cal. 503), 
 272. 
 V. San Francisco (66 Cal. 76), 
 274. 
 Bloomington v. Bay (42 III. 503), 102, 
 130, 390. 
 V. Murnin (36 III. App. 
 
 647). 275. 
 V. Osterle (28 N. E. 
 
 Rep. 1068), 487. 
 
 V. Perdue (99 111, 329), 8. 
 
 Bloor V. Delafied (69 Wis. 273, 18 
 
 Am. & Eng. C. C. 289, 34 N. W. 
 
 U5)(i62, 354.-402. 479. 
 
 Bly & Whitehall (120 N. Y. 506), loi, 
 
 206. 
 Blyth V. Birmingham Waterworks 
 
 Co. (11 Exch. 781), 2, 217. 
 Board, etc. v. Brown (89 Ind. 48), 210. 
 V. Fullen (in Ind. 410, I2 
 
 N. E. 29S), 142. 
 V. Hill (115 Ind. 316, 16 
 
 N. E. 156), 142. 
 V. Mighels (7 Ohio St. 
 
 119), 128. 
 V. Pearson (28 N. E. Rep. 
 1 120), 483. 
 
XXll 
 
 TABLE OF CASES. 
 
 r Re/efettcet 
 \.are to pages. 
 
 Board of Com. v. Thompson (io6 
 Ind. 534,7 N. E. 248), 211, 213. 
 
 Bo<jie V. Waupan (75 Wis. i, 43 N. 
 W. 667), 196, 262, 340. 
 
 Bohen v. Wast-ca (32 Minn. 176, 52 
 Am. Rep. 564, 19 N. W. 730), 103, 
 
 193- 
 Boland v. Missouri R. Co. (36 Mo. 
 
 489), 419. 
 Bond V. Biddeford (75 Me. 538;, 357. 
 V. Smith (1 13 N. Y. 378),'463. 
 Bonnie v. Richmond (75 Mo. 437), 
 
 356. 
 Boom V. Utica (N. Y.) (2 Barb. 104), 
 
 337- 
 Born V. The Plank Road Co. (12 W. 
 
 N. C. 283), 327. 
 Boss V. Northern P. R. Co. (N, D.) 
 (49 N. W. Rep. 655), 387. 
 V. Litton (5 C. & P. 407), 435. 
 Boston V. Crowley (38 Fed. Rep. 
 
 202), 109. 
 Boston Belting Co. v. Boston (149 
 
 Mass. 44, 20 N. E. 320), 273. 
 Boston Rolling Mills v. Cambridge 
 
 (117 Mass. 396), 295. 
 Bosworth V. Swansey (51 Mass. 363, 
 
 43 Am. Dec. 441), 437, 439. 
 Boucher v. New Haven (40 Conn. 
 
 457). 149. 154, 252. 
 Boulder v. Niles (9 Col. 415), 200. 
 Bowditch V. Boston (loi U. S. 16), 
 
 45. 
 Bowen v. Railway Co. (54 Mich. 502, 
 . 2a N. W. 559), 393. 
 Bowes V. Boston (29 N. E. Rep. 633), 
 
 240. 243, 378, 397. 
 Bowie V. Kansas City (51 Mo. 454), 
 
 103. 
 Boyd V. Insurance Patrol (113 Pa. 
 
 259), 48, 104. 
 Bovland v. New York (l Sandf. [N. 
 
 Y.J 27), 43, 63. 
 Brabham v. Hinds County (54 Miss. 
 
 363), 127. 
 Bradbee v. London (5 Scott N. C. 79), 
 
 180. 
 Bradbury v. Benton (69 Me. 194), 295. 
 Bradford v. Anniston (Ala.) (8 So. 
 
 683), 138, 231, 355, 357. 
 Bradford City v. Downs (126 Pa. 622, 
 
 17 Atl. 884), 442. 
 Bradley v. Andrews (51 Vt. 530), 64. 
 Bradwell v. Raihvav Co. (139 Pa. 404), 
 
 455- 
 Brady v. Lowell (57 Mass. [3 Cush.] 
 121), 82. 
 
 Brady v. Manhattan Railway Co. (127 
 N. Y. 46), 480. 
 V. Reg. (2 Can. Exch. 273), 
 
 153- 
 Brailey v. Southborough (66 Mass. [6 
 
 Cush.] 141), 298. 
 Branch v. Libbey (78 Me. 321), 477, 
 Brant v. Plumer (64 la. 33, 19 N. W. 
 
 H), 13- 
 Brantingham v. Fay (l Johns. Cas. 
 
 264), 499- 
 Brayton v. Fall River (i 1 3 Mass. 1 18), 
 
 272, 295. 
 Brennan v. Guardians of Limerick 
 Union (L. R. Ir. 2 C. 
 L. 42), 55- 
 v. St. Louis (92 Mo. 482, 7 
 W. Rep. 148), 134, 
 154, 232,477. 
 Brewster v. Davenport (51 la. 427), 
 
 60. 
 Brickell v. New York Central, etc. 
 
 R.Co. (120 N. Y. 290), 463. 
 Bridge v. Grand Junction Railway 
 Company (3 M. & W. 
 244), 406. 
 V. Oshkosh (71 Wis. 363, 67 
 Wis. 195), 505. 
 Briegel v. Philadelphia (135 Pa. 451, 
 
 30 Am. & Eng. C. C. 501), 305. 
 Briggs V. Olson (4 Hurl. & C. 403), 
 
 446. 
 Brightman v. Bristol (65 Me. 426, 20 
 
 Am. Rep. 711), 41. 
 Brimmer v. Boston (122 Mass. 22), 
 
 315- 
 Brine v. Great Western, etc. R. Co. 
 
 (2 B. & S. 402}, 291. 
 Brinkmever v. Evansville (29 Ind. 
 
 187), 46. 
 British Cast Plate M'fr's v. Meredith 
 
 (4 T. R. 794), 291. 
 Broburg v. Des Moines (63 la. 523, 
 
 19 N. W. 340), 200, 362. 
 
 Bronson v. Southbury (37 Conn. 199), 
 
 231, 432. 
 
 V. Wallingford (54 Conn. 
 
 513), 272. 
 
 Brooklyn v. Brooklyn City R.R. Co. 
 
 (47 N. Y. 476), 337. 
 Brooks V. Hart (14 N. H. 307), 440. 
 V. Somerville (106 Mass. 271), 
 
 75. 324- 353- 
 Brooksville V. Pumphrey (59 Ind. 78), 
 
 382. 
 Brookville v. Arthurs (130 Pa. 501, 18 
 
 Atl. 1076), 104, 174, 335. 
 
References "1 
 are to pages. \ 
 
 TABLE OF CASES. 
 
 XXUl 
 
 Broschart v. Tuttle (59 Conn, i, 11 
 
 L. R. A. 33), 440. 
 BroWei- V. New York ,(3 Barb. 254), 
 
 70. 
 Brown v. Atlanta (66 Ga. 71), 284. 
 
 V. Cape Girardeau (99 Mo. 
 
 377). 329- 
 V. Cayuga, etc. R. Co. (12 N. 
 
 Y.486). 217. 
 V. District of Columbia (127 U. 
 
 S. 579, 586), 100. 
 V. Eastern, etc. Railway Co. 
 
 (L. R. 24 Q. B. D. 391), 
 
 162. 
 V. European & N. A. R. Co. 
 
 (58 Me. 384), 419. 
 V. Fairhaven (47 Vt. 386), 228, 
 
 250. 
 V. Glasgow (57 Mo. 157), 145, 
 
 147, 232. 
 V. Guyandotte (W. Va.) (i i L. 
 
 R. A. 121, 12 S. E. 707), 
 
 50. 
 V. Illius (27 Conn. 84), 369. 
 V. Jefferson County (16 la. 
 
 339). 123- 
 V. Railroad Co. (54 Wis. 342- 
 359, II N. W. 356, 911), 
 
 517. 
 V. Skowhegan (82 Me. 273), 
 
 24S- 
 V. South Kennebec Agr'l So- 
 ciety (47 Maine 275), 128. 
 V. Vinalhaven (65 Me. 402), 
 44. 316, 339- 
 Browning v. Springfield (17 111. 143'), 
 
 102, 127, 137. 
 Brownlow v. Metrop. Board (13 C. 
 
 B. N. S. 768), 274. 
 Bruker v. Covington (69 Ind. 33, 35 
 
 Am. Rep. 202), 431, 466. 
 Brunswick v. Braxton (70 Ga. 193), 
 
 102, 353. 
 Brusso V. Buffalo (90 N. Y. 679), 154, 
 
 219. 318. 356, 367. 
 Bryant v. BiddMeld (39 Me. 193), 145. 
 V. Randolph (38 N. Y. St. Rep. 
 956, 14 N. Y. Supp. 844), 
 136. 
 V. St. Paul (33 Minn. 289, 23 
 N. W. 220), 43, 316, 
 Buchanan v. City of Duluth (Minn.) 
 
 (42 N. W. Rep. 204), 273. 
 Buck V. Biddeford (82 Me. 433, 19 Atl. 
 
 912). 29s. 353- ^^ ^ „ ^ 
 
 Buckley v. New Bedford (29 N. E. 
 Rep. 201), 273. 
 
 Bue?ching v. St. Louis Gas Light Co. 
 
 (73 Mo. 220), 453. 
 Buffalo V. Holloway (7 N. Y. 493, 57 
 Am. Dec. 550), 335. 
 etc. Turnpike Co. v. Buffalo 
 (58 N. Y. 639), 48, 66, 
 224, 285, 340. 
 Bugbee v. Kendricken (132 Mass. 
 
 349). 475- 
 Bulger V. Eden (82 Me. 352), 299, 315. 
 Bullock V. New York (^99 N. Y. 654), 
 
 187. 433. 477- 
 Bunch V. Edenton (90 N. C. 431), 104. 
 Banting v. Hogsett (139 Pa. 363, 12 
 
 L. R. A. 268, 21 Atl. 31), 398, 407, 
 
 466. 
 Burford v. Grand Rapids (53 Mich. 
 
 98, 51 Am. Rep. 105), 60, 66, 166, 
 
 269, 281. 
 Burmeister, Matter of (76 N. Y. 174), 
 
 130. 
 Burnett v. Contra Costa Co (67 Cal, 
 
 78), 105. 
 Burnham v. Byron (46 Mich. 551), 
 
 261. 
 Burns v. Bradford (137 Pa. 361, 11 L. 
 R. A. 726, 20 Atl. 997), 
 132, 184, 362. 
 V. Toronto (42 N. C. Q. B. 560), 
 201. 
 Burr V. Plymouth (48 Conn. 460), 
 
 191. 195- 
 Burrell Tp. v. Uncapher(ii7 Pa. 353, 
 
 II Atl. 619), 149, 227. 
 Burrill v. Augusta (78 Me. 118, i N. 
 
 E. 697, 57 Am. Rep. 788), 46, 315, 
 
 316. 
 Burritt v. New Haven (42 Conn. 174), 
 
 252. 
 Burrows v. March Gas & Coke Co. 
 
 (L. R. 7 Exch. 96, 97), 386. 
 Burton v. Chattanooga (7 Lea [Tenn.] 
 
 739). 272. 
 Bury V. Lancashire, etc. Railway Co. 
 
 (L. R. 20 Q. B. D. 485, 42 Am. & 
 
 Eng. R. C. 56}, 227. 
 Bush V. Geneva (3 T. & C. [N. Y.] 
 
 409). 358. 
 Butler V. Bangor (67 Me. 388), 76, 
 163, 246. 
 V. Hunter (7 H. & N. 826), 
 
 324- 
 Butterfield v. Boston (148 Mass. 544, 
 20 N. E. 113), 235, 
 242. 
 V. Forrester (i i East 60), 
 423, 461. 
 
XXIV 
 
 TABLE OF CASES. 
 
 CReferttices 
 are to fages. 
 
 Button V. Frink (51 Conn. 342, 50 
 
 Am. Rep. 24), 160, 457. 
 Buttrick v. Lowell, (83 Mass. [l Allen] 
 172, 79 Am. Dec. 721), 39, , 40, 
 316. 
 Butts V. Stowe (53 Vt. 600), 250. 
 Buzby V. Traction Co. (126 Pa. 559, 
 
 17 Atl. 895), 423. 
 Byerly v. Animosa (79 la. 204, 44 
 
 N. W. 359), 135, 379.427. 
 Byrne v. Boadle (2 Hurl. & C. 722), 
 446. 
 V. New York Central, etc. R. 
 
 Co. (83 N. Y. 620), 410. 
 V.Wilson (15 Ir. C. L. 332, 
 
 342), 520- 
 Byrnes v. Cohoes (67 N. Y. 204), 270, 
 278, 279. 
 
 Cain V. Syracuse (95 N. Y. 83), 61, 
 
 65, 194. 
 Caincross v. Pewaukee (78 Wis. 66, 
 
 10 L. R. A. 473, 47 N. W. 13), 
 
 106, 153, 160, 262, 380. 
 Calder v. Smalley (66 la. 219, 55 Am. 
 
 Rep. 270, 23 N. W. 638), 175. 
 Caldwell v. Murphy (5 N. Y. 416, i 
 
 Duer 233), 499. 
 Calkins v. Hartford (33 Conn. 57, 87 
 
 Am. Dec. 194), 252, 477. 
 Callahan v. Morris (30 N. J. L. loi), 
 
 106. 
 Callanan v. Gilman (107 N. Y. 360, 
 
 14 N. E. 264), 152. 
 Calvert County Com. v. Gibson (36 
 
 Md. 229), 122. 
 Calwell V. Boone (51 la. 687, 33 Am. 
 
 Rep. 154), 39, 41. 
 Campbell v. Fairhaven (54 Vt. 336), 
 250. 
 V. Kalamazoo (80 Mich. 
 655, 45 N. W. 652), 
 
 259. 365. 487. 
 V. Montgomery (53 Ala. 
 527, 25 Am. Rep. 656), 
 63, 65, 102. 
 V. Stillwater (32 Minn. 308, 
 50 Am. Rep. 566, 20 
 N. W. 320), 161, 227, 
 380. 
 Caniff V. Blanchard Nav. Co. (66 
 Mich. 638, II Am. S. T. Rep. 541), 
 13. 
 Canning v. Williamstown (55 Mass. 
 
 451"). 5H- 
 Canterbury' v. Boston (141 Mass. 215, 
 I N. E. 584), 243. 
 
 Card V. Ellsworth (65 Me. 547, 20 Am. 
 
 Rep. 722), 160. 
 Cardwell v. American Bridge Co. (113 
 
 U. S. 205), 212. 
 Carleton v. Franconia Iron & Steel 
 
 Co. (99 Mass. 216), 71. 
 Carlisle v. Brisbane (113 Pa. 544, 57 
 
 Am. Rep. 483, 9 East. 141), 190, 
 
 196. 
 Carman v. Railroad Co. (4 Ohio St. 
 
 399), 323. 
 Carney v. Marseilles (111.), (26 N. E. 
 Rep. 491), 233, 235. 
 V. Shanly (107 Mass. 568), 
 
 384- 
 Carpenter v. Cohoes (81 N. Y. 21, 37 
 
 Am. Rep. 468), 133, 191, 220, 226, 
 
 232, 350. 
 Carr v. East on (Pa.) (21 Atl. Rep. 
 
 «22), 442. 
 
 V. Ashland (62 N. H. 665), 249. 
 Carrington v. St. Louis (89 Mo. 208, 
 4 West. 681, 58 Am. Rep. 108), 41, 
 305. 359. 362. 
 Carroll County v. Bailey (122 Ind. 46, 
 23 N. E. 672), 209, 210, 223. 
 V. Staten Island R. Co. (58 
 N. Y. 126, 17 Am. Rep. 
 221), 438, 440. 
 Carter v. Monticello (68 la. 178, 26 N. 
 W. i2q), 357, 358. 
 V. Tovvne (98 Mass. 567, 96 
 Am. Rep. 682, 103 Mass. 
 407), 384, 441. 
 Carterville v. Cook (129 111. 152, 16 
 Am. St. Rep. 248, 22 N. E. 14), 
 190, 390. 
 Carthage v. Frederick (122 N. Y. 268, 
 19 Am. St. 490, 10 L. R. A. 178), 
 164, 207. 
 Cartwright v. Belmont (58 Wis. 370, 
 
 17 N. W. 237), 135, 147, 193- 
 Carver v. Detroit, etc. Railroad Co. 
 
 (69 Mich. 616, 25 N. W. 183), 7. 
 Casey v. Smith (152 Mass. 294, 23 
 Am. St. Rep. 842, 26 N. E. 430), 
 411. 
 Caspary v. Portland (19 Or. 496, 24 
 
 Pac. 1036), 329. 
 Cassedy v. Stockbridge (21 Vt. 391), 
 
 150. 
 Catterlin v. Frankfort (79 Ind. 547, 41 
 
 Am. Rep. 627), 335. 
 Cavanagh v. Boston (139 Mass. 426, 
 52 Am. Rep. 716, I N. E. 834), 337. 
 Centerville v. Woods (57 Ind. 192), 
 154.495- 
 
References ~\ 
 are to Pages. Ji 
 
 TABLE OF CASES. 
 
 XXV 
 
 Central Railroad v. Richards (62 Ga, 
 
 306), 502. 
 
 Co.v. R\les (84 Ga. 
 
 420, 11 S. E. 499), 
 
 II. 
 
 R. Co. V. Smith (21 Atl. Rep. 
 
 706, 52 Am. Rep. 353), 56, 
 
 453- 
 
 Transp. Co. v Pullman's Car 
 
 Co. (139 U. S. 24. 46), 343. 
 
 Centralia v. Baker (36 111. App. 46), 
 
 176. 
 
 V. Krause (64 111. 19), 425, 
 
 427. 431- 
 Chadbourne v. New Castle (48 N. H. 
 
 196), 41. 
 Chalkley v. Richmond (Va.) (14 S. E. 
 
 Rep. 339). 274. 302. 
 Chamberlain v. Enfield (43 N. H. 356), 
 
 150. '55- 
 Champaign v. Forrester (29 111. 117), 
 295. 
 V. Jones (132 111. 304), 
 151. 
 Champlin v. Penn Yan (34 Hun [N. 
 
 Y.] 33). 162. 
 Chandler v. Bay St. Louis (57 Miss. 
 
 327). 329- 
 Chapman v. Cook (10 R. I. 304, 14 
 Am. Rep. 686), 258. 
 V. Douglass County (107 U. 
 
 S. 348), 343. 
 V. Macon (55 Ga. 566), 189. 
 V. Milton (31 W. Va. 384, 
 
 7 S. E. 22), 263. 
 V. Nobleboro (76 Me. 427), 
 
 356. 
 V.Rochester (no N. Y. 
 273, 18 N.E.88), 274, 
 302, 362. 
 Charles v. Hinckley Local Board (52 
 
 L. J.[N. S.]5S4), 369- 
 Charlock v. Freel (125 N. Y. 357), 
 
 335. 
 Chartiers Tp. v. Langdon (114 Pa. 
 
 541, 7 Atl. 84, S Cent. 289), 172, 
 
 175- 
 Chase v. Cleveland (44 Ohio St. 505, 
 58 Am. Rep. 843, 9 N. 
 E. 225, I Ry. & Corp. L. 
 J. 331), 200. 
 V. Lowell (151 Mass. 422, 24 
 N. E. 212), 151. 
 Cheeney v. Brookfield (60 Mo. 53), 
 
 338. 
 Cheever v. Shedd (13 Blatch. 258;, 
 
 280. 
 
 Chenango Bridge Co. v. Paige (83 
 N. Y. 178, 38 Am. Rep. 407), 340. 
 Cheney v. Ryegate (55 Vt. 499), 160. 
 Chicago v. Bixby (84 111. 82, 25 Am. 
 Rep. 429), 190. 
 v. Brophy (79 111. 277), 536. 
 V. Dalle (115 111.386, 5N.E. 
 
 578), 186, 362, 366. 
 v. Fowler (60 111. 322), 102. 
 v. Gallagher (44 111. 295), 
 
 190. 
 V. Gavin (i 111. App. 302), 
 
 235- 
 V. Hesing (83 111. 204, 25 
 
 Am. Rep. 378), 190, 
 
 422. 
 V. Hislop (61 111. 86), 235. 
 V. Hoy (75 111. 530), 161. 
 V. Keefe (114 III.222,2N.E. 
 
 267, I West. 351), 102, 
 
 ^32, 177. 390- 
 V. Kelly (69 111. 475), 492, 
 
 529. 536- 
 V. Kimball (18 111. App. 240), 
 
 186. 
 V. Langlass (52 111. 256, 4 
 
 Am. Rep. 603, 66 111. 
 
 361), 186, 190, 493.494- 
 V. McCarthy (75 111. 602), 
 
 186, 366. 
 V. McCuUoch (10 111. App. 
 
 459). 362. 
 V. McGiven (78 111. 347), 
 
 156, 200, 488. 
 v. McLean (133 111. 148, 24 
 
 N. E. 527), 424, 442, 
 
 508. 
 v. Martin (49 II!. 241, 95 
 
 Am. Dec. 590), 224, 
 
 494- 
 V. Major (18 111. 349), 422. 
 v. O'Brennan (65 111. 160), 
 
 528, 529. 
 V. O'Brien (in 111. 532, 53 
 
 Am. Rep. 640), 174, 
 
 208. 
 V. Powers (42 111. 169, 89 
 
 Am. Dec. 418), 232, 
 
 340. 477- 
 V. Robbins (2 Black. [U. S.] 
 
 418), 84, 144. 148. 154, 
 
 174, 189. 
 V. Schmidt (107 111. 186), 
 
 383. 
 V. Smith (48 111. 107), 206. 
 V. Starr (42 111. 174, 89 Am. 
 
 Dec. 422), 422. 
 
XXVI 
 
 TABLE OF CASESi 
 
 rRe/ereitcei 
 are to pages. 
 
 Chicago V. Turner (80 111. 419), 338. 
 V. Wright (68 111. 586), 235. 
 etc. R. Co. V. Dunn (32 111. 
 
 260), 524, 525. 
 etc. Co. V. Sawyer (69 111. 
 285, 18 Am. Rep. 618), 
 217. 
 etc. R. Co. V. State (53 Wis. 
 
 509), 30. 
 City Ry. Co. v. Wilcox (27 
 N. E. Rep. 899, 44 Alb. L. 
 J. 70), 416, 420. 
 Chick V. Newberry Co. (27 S. C. 419, 
 
 3 S. E. 787), 120. 
 Chidsey v. Canton (17 Conn. 475), 
 
 82, 252. 
 Child V. Boston (86 Mass. [4 Allen] 
 41, 81 Am. Dec. 680), 51, 83, 267, 
 273, 274, 286, 295, 315. 
 Childrey v. Huntington (W. Va.) (i i 
 L. R. A. 313, 12 S. E. 536), 185, 
 
 391- 
 Chope V. Eureka (78 Cal. 588, 4L. R. 
 A. 325, 12 Am. Rep. 113), 105,296, 
 
 313- 
 Christopher St. Railroad Co. v. New 
 
 York (I Abb. N. C. 75). 195- 
 Christy v. Pridgeon (4 Wall. [U. S.] 
 
 196), 85. 
 Churchman v. Tunstall (Hardres 
 
 162), 23, 26. 
 Cincmnati v. Cameron (33 Ohio 336), 
 
 71- 
 Circleville v. Neuding (41 Ohio St. 
 
 465), 155.323- 
 City V. Crawford (53 Am. Rep. 753), 
 
 367- 
 Claiborne County v. Brooks (iii U. 
 
 S. 400, 410J, 109. 
 Clapp V. Ellington (N. Y.) (51 Hun 
 
 58), 218. 
 Clapper v. Waterford (N. Y.) (62 Hun 
 
 170, 30 N. E. 240), 264, 362, 486. 
 Clarissey v. Metropolitan Fire Dept. 
 (N. Y.) (7 Abb. Pr. N. S.352), 308, 
 317. 
 Clark V. Chambers (L. R. 3 Q. B. D. 
 327). 373. 386. 
 V. Des Moines (19 la. 198), 340. 
 V. Fry (8 Ohio St. 358, 72 Am. 
 
 Dec. 590), 175. 
 V. Lincoln County (i Wash. 
 
 5181, 128. 
 V. Manchester (62 N. H. 577, 
 
 50 N. W. 254), 249, 259. 
 V. Richmond (83 Va. 355, 5 S. 
 E. 369), 164, 191. 
 
 Clark V. Soule (137 Mass. 380), 330. 
 V. Tremonl (83 Me. 426, 22 Atl. 
 
 378). 245. 
 V. Union Ferry Co. (35 N. Y. 
 
 485, 91 Am. Dec. 66), 
 
 73- 
 V. Waltham (128 Mass. 567, 35 
 Am. Rep. 159), 69, 240, 
 282. 
 Classey v. Hestonville, etc. R. Co. (57 
 
 Pa. I72)v420. 
 Clayburgh v. Chicago (25 111. 535, 79 
 
 Am. Dec. 346), 329. 
 Clear Lake W. W. Co. v. Lake 
 
 County (45 Cal. 90), 41. 
 Clemence v. Auburn (66 N. Y. 334), 
 
 186, 187, 277. 
 
 Cleveland v. King (132 U. S. 295), 
 
 100, 104, 148, 149, 
 
 164. 
 
 V. New Jersey Steamboat 
 
 ' Co. (125 N. Y. 299), 
 
 393- 
 V. Steamboat Co. (68 N. Y. 
 
 306), 159, 188. 
 etc. R. Co. V. Crawford (24 
 Ohio St. 631, 15 Am. 
 Rep. 633), 471- 
 etc. R. Co. V. Rowan (66 
 
 Pa. 393), 459. 
 etc. R Co. V. Terry (8 
 Ohio St. 570), 390. 
 Cline V. Crescent City R. Co. (41 La. 
 Ann. 1031, 6 So. Rep. 851), 103, 
 151, 154. 
 Cloughessy v. Waterbury (51 Conn. 
 
 405), 201, 252. 
 Coates V. Canaan (51 Vt. 131), 131, 
 
 '95- 
 Cobb V. Portland (55 Me. 381, 92 Am. 
 
 Dec. 598), 39, 316. 
 Cochrane v. Maiden (152 Mass. 365), 
 
 271. 
 Coddington v. Brooklyn Crosstown 
 
 Railroad Co. (102 N. Y. 66, 5 N.E. 
 
 797). 8. 
 Coggswell V. Lexington (58 Mass. [4 
 
 Cush.l 307), 150, 191. 
 Cohen v. New York (113 N. Y. 532, 
 
 21 N. E. 700), 66, loi, 152, 165, 
 
 340. 
 Cohoes V. Morrison (N. Y.) (42 Hun 
 
 216), 335- 
 Coke Co. V. Vestry (L. R. 1 5 Q. B. 
 
 D. I), 284. 
 Colby V. Beaver Dam (34 Wis. 285), 
 
 356. 
 
Refe'eHces T 
 are to p Ages. A 
 
 TABLE OF CASES. 
 
 XXVll 
 
 Cole V. Nashville (Tenn.) (4 Sneed 
 
 162), 167. 
 
 V. Newburyport (129 Mass. 
 
 594, 37 Am. Rep. 394), 
 
 161. 
 
 Coleman v. Chester (14 S. C. 291), 
 
 106, 120. 
 Colley V. Westbrook (57 Me. 181, 2 
 
 Am. Rep. 30), 357. 
 Collins V. Council Bluffs (32 la. 324, 
 7 Am. Rep. 200), 200, 
 520. 
 V. Dorchester, (60 Mass. [6 
 
 Cush.] 396), 358, 478. 
 V. Macon (70 Ga. 543), 163. 
 V. Philadelphia (93 Pa. 272), 
 
 295. 
 V. Savannah (77 Ga. 745), 60. 
 V. South Boston Ry. Co. (142 
 Mass. 301, 56 Am. Rep. 
 67s, 7 N. E. 856), 177, 
 412. 
 Columbia v. Washington Gas Light 
 Co. (D. C.) (19 Wash. 
 L. R. 354), 335. 
 Railroad Co. v. Hawthorne 
 (144 U. 8. 202), 481. 
 Columbus V. Strassner (124 Ind. 482, 
 
 25 N. E. 65), 174, 432, 505. 
 Comer v. Coa! & Min. Co. (34 W. 
 
 Va. 533, 12 S. E. 476), 453. 
 
 Commonwealth v. Curtiss (91 Mass: 
 
 266), 187. 
 
 V. Sturtivant (117 
 
 Mass. 122, 19 
 
 Am. Rep.401), 
 
 SOS- 
 Bank V. New York 
 (43 N. Y. 184), 
 
 329- 
 Condict V. Jersey City (46 N. J. L. 
 157, 19 Cent. L. J. 213), 43, 106, 308, 
 
 311- 
 
 Congdon v. Norwich (37 Conn. 419), 
 
 203. 
 Conklin v. Thompson (N. Y.) (29 
 
 Barb. 218), 64. 
 Conley V. Portland (78 Me. 217, 3 Atl. 
 
 658), 329. 
 Connolly v. Boston (117 Mass. 64), 
 
 242. 
 Connor v. Cleveland (i Clev. Rep. 
 
 257), so. 
 Conrad v. Ithaca (16 N. Y. 158), loi, 
 
 173, 217, 336. 
 Cook V. Charlestown (98 Mass. 80), 
 
 161. 
 
 Cook V. Macon ("54 Ga. 468), 40. 
 
 V. Milwaukee (24 Wis. 274, i 
 
 Am. Rep. 183), 200. 
 V. Montague (115 Mass. 571), 
 i6i, 162. 
 Cooke V. Houston Direct Nav. Co. 
 
 (76 Tex. 353, 13 S. W. 475), 8. 
 Cooley V. Freeholders of Essex (N. J.) 
 
 (3 Dutch. 415), 254. 
 Coombs s. Purrington (42 Me. 332), 
 
 43S- 
 Coonley v. Albany (N. Y.) (57 Hun 
 
 327, affi'd 30 N. E. Rep. 382), 42, 
 
 72. 
 Cooper V. Mills County (69 Ta. 350, 
 
 28 N. W. 633), 123, 226, 536. 
 Coots V. Detroit (43 N. W. Rep. 17, 
 
 25 Am. & Eng. C. C. 250), 131, 
 
 308, 331. 
 Copeland v. Blenheim (Can.) (9 O. R. 
 
 19), 92, i8i. 
 Corbalis v. Newberry Tp. (132 Pa. 9, 
 
 19 Atl. 44), 219, 227. 
 Corbett V. Troj (N. Y.) (53 How. 228), 
 
 201. 
 Corcoran v. Peekskill (108 N. Y. 151, 
 
 15 N. E. 214), 189, 482, 484, 486. 
 Cordell v. New York Central, etc. R. 
 
 Co. (75 N. Y. 330), 463. 
 Corey v. Rice (N. Y.) (4 Lans. 141), 
 
 34°- 
 Cortland Co. v. Herkimer Co. (44 N. 
 
 Y. 22), 486. 
 Corts v. Dist. of Col. (7 Mackey 277), 
 
 206, 356, 500. 
 Cosgrove v. Ogden (49 N. Y. 255, 10 
 
 Am. Rep. 361), 411. 
 Cosulich V. Standard Oil Co. (122 N. 
 
 Y. 118), 446. 
 County v. Wise (18 Atl. Rep. 31), 
 
 122. 
 Covington County v. Kinney (45 Ala. 
 
 176), 126. 
 
 Cowan V. Muskegon Railroad Co. 
 
 (Mich.) (48 N. W. Rep. 
 
 1 66), 148. 
 
 V. Railway Co. (84 Mich. 
 
 583, 48 N. W. 166), 
 
 393- 
 Cowley V. Sunderland (6 H. & N. 
 
 565;. 771- 
 Cox V. Paddington Vestry (64 L. T. 
 566), 94, 2S4. 
 V. Vanderkleed (21 Ind. 164), 
 508. 
 Crafts V. Boston (109 Mass. 519), 427, 
 457- 
 
XXVlll 
 
 Table of cases. 
 
 r References 
 are to pages. 
 
 Craig V. Sedalia (63 Mo. 417), 147, 232. 
 Cramer v. Burlington (45 la. 627), 
 
 488. 
 Cranston v. Augusta (61 Ga. 572), 39. 
 Cratty v. Bangor (57 Me. 423, 2 Am. 
 
 Rep. 56), 241. 
 Crawford v. Allegheny City (108 Pa. 
 
 490, 20 Am. & Eng. C. C. 488), 71. 
 
 Crawfordsville v. Bond (96 Ind. 236), 
 
 271, 275, 276. 
 
 V. Smith (79 Ind. 308, 
 
 41 Am. Rep. 612), 
 
 224, 38D. 
 
 Creed v. Com. Bank of Cincinnati (i i 
 
 Ohio St. 489), 519. 
 Cregin v. Brooklyn C. R. Co. (83 N. 
 
 Y. 595, 38 Am. Rep. 474), 522. 
 Cremer v. Portland (36 Wis. 92), 147. 
 Crepps V. Durden (2 Cowper64o), 438. 
 Crescent Tp. v. Anderson (i 14 Pa. St. 
 
 643, 8 Atl. 3791, 442. 
 Cressy v. Pottsville (59 la. 62, 12 N. 
 
 W. 757), 366. 
 Cromarty v. Boston (127 Mass. 329, 
 
 34 Am. Rep. 381), 156, 202. 
 Cronin v. Boston (135 Mass. 1 10), 243. 
 Crouch V. Charleston, etc. R. Co. (21 
 
 S. C. 495), 219. 
 Crowell V. Sonoma County (25 Cal. 
 
 313). ic^S- 
 Crowley v. Newmarket Local Board 
 (6 T. L. R. 321, affi'd C. A. 7 T. L. 
 R. 29), 96. 
 Crowther v. Yonkers (15 N. Y. Supp. 
 
 588), 154, 434. 
 Crystal v. Des Moines (65 la. 502), 
 
 134- 
 Cudclon V. Eastwick(i Salk. 193), 29. 
 Culver V. Streator (130 III. 238, 6 L. 
 
 R. A. 270, 22 N. E. 810), 40. 
 Cumberland V. Willison (50 Md. 138), 
 
 274- 
 Cummings v. National Furnace Co. 
 (60 Wis. 603, 18 N. W. 742, 20 N. 
 W. 665), 446. 
 Cummins v. Seymour (79 Ind. 491, 41 
 Am. Rep. 618), 60, 
 270, 271, 276, 285. 
 V. Syracuse (100 N. Y. 637, 
 3 N. E. 680), 190. 
 Cunningham v. Lyness (22 Wis. 245), 
 402. 
 V. St. Louis (96 Mo. 53, 
 8 S. W. 787), 304. 
 Curran V. Boston (151 Mass. 505, 8 
 L. R. A. 243, 30 A. & E. C. C. 506), 
 SO, S7. 283. 
 
 Curry v. TownofMannington (23 W. 
 Va. 14), 104. 
 V. Buffalo (N. Y.) (57 Hun 25), 
 263. 
 Curtin v. Somerset (Mass.) (12 L. R. 
 A. 322, 21 Atl. Rep. 244, 23 Am. 
 St. Rep. 220), ,335, 375. 
 Gushing V. Bedford (125 Mass. 526), 
 161, 162, 286, 311, 315, 
 
 339. 379- 
 V. Boston (128 Mass. 330, 35 
 Am. Rep. 383), 150. 
 Gusick V. Adams (115 N. Y. 55, 21 N. 
 
 E. 673), 13. 
 Cuyler v. Rochester (N. Y.) (12 Wend. 
 165), 337- 
 
 Daily v. Worcester (131 Mass. 452), 
 
 159- 
 Dale V. Delaware, etc. R. Co. (73 N. 
 Y. 468), 479, 485. 
 V. Webster Co. (76 la. 370, 47 
 N. W. I), 434. 
 Daley v. Norwich & W. R. Co. (26 
 Conn. 591, 68 Am. Rep. 413), 419. 
 Dalton V. Albion (50 Mich. 129), 150, 
 
 356- 
 V. Salem (136 Mass. 278), 243. 
 V. Upper Tyrone Tp. (137 Pa. 
 18), 174, 227. 
 Damon v. Boston (149 Mass. 147, 21 
 
 N. E. 23s). 159, 192. 
 Damour v. Lyons City (44 la. 282), 
 
 295, 297. 
 Dana V. Fiedler (12 N. Y. 40), 526. 
 Danaher v. Brooklyn (119 N. Y. 241, 
 SI Hun 563, 23 N. E. 745), 52, 65, 
 
 307, 367- 
 Danbury & N. R. Co. v. Town of 
 
 Norwalk (37 Conn. 109), 215. 
 Daniel v. Metropolitan Ry. Co. (L. 
 
 R. 3 C P. 591. 5 H. L. 45), 375. 
 Daniels v. Athens (55 Ga. 609), 220, 
 229. 
 V. Denver (2 Col. 669), 102, 
 
 269. 
 V. Lebanon (58 N. H. 284), 
 
 434, 442. 
 V. Lowell (29 N. E. Rep. 222), 
 
 488. 
 V. New York, etc. R. Co. 
 (Mass.) (i 3 L. R. A. 248, 
 28 N. E. 283), 13. 
 Dargan v. Mobile (31 Ala. 469, 70 
 
 Am. Dec. 505), 39, 40, 52. 
 Dargie v. Magistrates, etc. of Forfar 
 (Hay 208), 90. 
 
References "1 
 are to pages. \ 
 
 TABLE OF CASES. 
 
 XXIX 
 
 Darling v. Bangor (38 Me. 112), 274, 
 
 277. 299- 
 V. Westmoreland (52 N. H. 
 413. 13 Am. Rep. 55), 
 203, 249, 477. 
 Darlington v. New York (31 N. Y. 
 
 164), 41, 75. 
 Davenport v. Ruckman (37 N. Y. 568), 
 
 189, 425, 435. 
 Davidson v. Portland (69 Me. 116, 31 
 
 Am.. Rep. 253), 241, 242, 437. 
 Davies v. Mann (10 M. & W. 546, 12 
 
 L. J. Ex. 10), 16, 401. 
 Davis v. Bangor (42 Me. 522), 65, 
 162, 246. 
 V, Crawfordsville (i 19 Ind. 1,12 
 Am. St. Rep. 361, 21 N. 
 E. 449), 295. 
 V.Guilford (55 Conn. 351, 11 
 
 Atl. 350), 252, 366. 
 v. Knoxville (18 S. W. Rep. 
 
 254), 51- 
 v. Mayor, etc. (14 N. Y. 506, 
 524, 67 Am. Dec. 186), 
 152. 
 V. Montgomery (51 Ala. 139, 
 23 Am. Rep. 545), 43, 46. 
 Dawson v. Kuttner (48 Ga. 133), 45. 
 v. Troy (N. Y.) (48 Hun 383), 
 263. 
 Day V. Day (94 N. Y. 153), 230. 
 
 V. Mt. Pleasant (70 la. 193, 30 
 
 N. W. 853), 189. 
 V. Milford (87 Mass. 98), 193. 
 Dayton v. Pease (4 Ohio St. 89), 104, 
 316. 
 V. Rutland (84 III. 279), 230. 
 De Camp v. Sioux City (74 la. 392, 37 
 
 N. W. 971), 39'- 
 De Yoe v. Saratoga (N. Y.) (l Hun 
 
 341). 317- 
 Dean v. New Milford Township (Pa.) 
 (5 W. & S. 545), 104, 122. 
 V. Railroad Co. (129 Pa. St. 514, 
 
 18 Atl. 718), 442. 
 
 V. Randolph (132 Mass. 475), 
 
 2i6, 283, 298, 305, 315, 326. 
 
 Deerfield v. Connecticut, etc. R. Co. 
 
 (144 Mass. 325, II N. E. 105), 475. 
 
 Defer v. Detroit (67 Mich. 346, 34 N. 
 
 W. 680), 49, 276. 
 Degg v. Midland Railroad Co. (i H. 
 
 & N. 781), 9. 
 Dehnhardt v. Philadelphia (15 W. N. 
 
 C. 214), 423, 442. 
 Delger v. St. Paul (Minn.) (14 Fed. 
 Rep. 567), 100, 141. 
 
 Delphi V. Lowery (74 Ind. 520, 39 
 
 Am. Rep. 98), 477. 
 Denby v. Miller (59 Wis. 240), 180. 
 Denman v. Johnston (Mich.) (48 N. 
 
 W. Rep. 565), 440. 
 Denver v. Capelli (4 Col. 25, 34 Am. 
 Rep. 62), 271, 273, 295. 
 V. Dean (10 Col. 375, 3 Am. 
 St. Rep. 594, 16 Pac. 30), 
 102, 359. 
 V. Dunsmore (7 Col. 328, 3 
 Pac. 705), 88, 102, 226, 
 
 273- 
 v. Williams (12 Col. 475, 21 
 Pac. 617), 102. 
 Derinzy v. Ottawa (15 Ont. Rep.712), 
 
 280. 
 Derkinan v. Morgan's, etc. S.S. Co. 
 
 (5 So. Rep. 76), 457. 
 Detchett v. Railroad Co. (N. Y.) (5 
 
 Hun 165), 436. 
 
 Detroit v. Blackeby (21 Mich. 84, 4 
 
 Am. Rep. 450), 33, 49, 
 
 83, 105, III, 128. 
 
 v. Corey (9 Mich. 165, 80 Am. 
 
 Dec. 78), 49, 275, 295, 
 
 299- 
 V. Osborne (135 U. S. 492), 
 
 100, 261. 
 V. Putnam (45 Mich. 263, 7 
 N. W. 815), 49, 105, 
 '259, 260. 
 etc. R. Co. V. Van Steinburg 
 (17 Mich. 99), 470. 
 Dewey v. Detroit (15 Mich. 307), 
 
 105. 
 Dewire v. Bailey (131 Mass. 169, 41 
 
 Am. Rep. 219), 429. 
 Dexter v. Canton (79 Me. 463), 
 
 218. 
 
 Diamond Match Co. v. New Haven 
 
 (55 Conn. 510, 6 N. E. 174), 280, 
 
 285. : 
 
 Dickson v. Hollister (123 Pa. 421, 16 
 
 Atl. 484), 423. 
 Diehm v. Cincinnati (25 Ohio St. 305), 
 
 59- 
 Dimick v. Suffield (30 Conn. 129), 
 
 160. 
 District of Columbia v. Armes (107 U. 
 
 s. 519), 190. 
 
 206, 477. 
 V. McElligott 
 (117 U. S. 
 621, 135 U. 
 S. 492), 100, 
 106. 
 
XXX 
 
 TABLE OF CASES. 
 
 [Referincn 
 are io fiagts. 
 
 District of Columbia v. Woodbury 
 (136 U. S. 450), 99. 180, 321, 365, 
 
 497. 5"7. 535- 
 Dixon V. Baker (65 111. 518, 16 Am. 
 Rep. 591), 270. 
 V. Bell (5 M. & S. 198, 199), 
 
 386. 
 V. Brooklyn, etc. R. Co. (100 
 N. Y. 170, 3 N. E. 65), 
 195. 
 Dobbins v. Brown (119 N. 192, 23 N. 
 
 E. 537). 465- 
 Doherty v. Braintree (148 Mass. 495, 
 • 20 N. E. 106), 216,284, 
 298, 331. 
 V. Waltham (70 Mass. [4 
 Gray] 596), 387. 
 Dominick v. Waltham (100 111. 631), 
 
 230. 
 Donaldson v. Boston (82 Mass. 508), 
 
 359- 
 Donnelly v. Fall River (132 Mass. 
 
 299). 243- 
 V. Tripp (12 R. I. 97), 337. 
 Donoho V. Vulcan Iron Works (75 
 
 Mo. 401), 178. 
 Donovan v. Board of Education (85 
 N. Y. 117), 59, 118, 
 
 317- 
 V. McAlpin (85 N. Y. 185, 
 39 Am. Rep. 649), 
 
 317- 
 Dooley v. Kansas City (82 Mo. 441, 
 52 Am. Rep. 380, 19 
 Cent. L. J. 490), 317, 
 
 349- 
 V. Meriden (44 Conn. 117, 26 
 Am. Rep. 433), 203, 
 207, 252. 
 V. Sullivan (H2 Ind. 451, 2 
 Am. St. Rep. 209, 14 
 N. E. 566), 61. 
 Dorman v. Jacksonville (13 Fla. 538, 
 
 7 Am. Rep. 253), 280, 295. 
 Dorsey v. Racine (60 Wis. 292), 263. 
 Dosdale v. Olmsted County (33 Minn. 
 
 96, 44 Am. Rep. 185"), 307. 
 Dotton v. Albion (50 Mich. 129, 15 
 
 S. W. 46), 362. 
 Dougan v. Transportation Co. (56 
 
 N. Y. i), 159, 188,479, 485. 
 Dougherty v. Missouri, etc. R. Co. 
 
 (97 Mo. 647), 504. 
 Douglas, The (L. R. 7 P. Div. 151), 
 
 72. 
 Dowell V. Guthrie (99 Mo. 653, 12 S. 
 W. 900), 65. 
 
 Dowling V. New York Central, etc. R. 
 
 Co. (90 N. Y. 670), 40. 
 Downing v. Mason Co. (87 Ky. 208, 
 
 12 Am. St. Rep. 473, 8 S. W. 264), 
 
 307- 
 Drake v. Lowell (54 Mass. 292), 193. 
 Draper v. Ironton (42 Wis. 696), 466. 
 Drew v. Sutton (55 Vt. 586, 45 Am. 
 
 Rep. 644), 149, 157, 250. 
 Dube V. Lewiston (83 Me. 211, 22 
 
 Atl. 112), 329. 
 Dubois V. Kingston (102 N. Y. 219, 6 
 
 N. E. 273), 184, 435, 437. 
 Dubuque Wood Co. v. Dubuque (30 
 
 la. 176), 377. 
 Duff V. New York (40 N. Y. St. Rep. 
 
 230, 15 N. Y. Supp. 863), 264. 
 Duffy V. Dubuque (63 la. 171, 50 Am. 
 
 Rep. 743, 18 N. W. 900), 177, 193. 
 Dunbar v. Boston (112 Mass. 75), 
 
 311. 
 Dundas v. Lansing (75 Mich. 499, 
 
 42 N. W. loii), 261, 357, 427. 
 Dunn V. Agricultural Society (46 Ohio 
 St. 93, 18 N. E. 496), 127. 
 V. Wilcox (85 Ala. 144, 4 So. 
 661), 126. 
 Dupuy V. Union Township (46 N. J. 
 
 L. 269), 253. 
 Durant v. Palmer (29 N. J. L. 544), 
 
 147- 
 Durkee v. Janesville (28 Wis. 464), 
 170. 
 V. Kenosha (59 Wis. 123, 48 
 Am. Rep. 480, 17 N. W. 
 677), 329. 
 Durrell v. Johnson (Neb.) (48 N. W. 
 
 Rep. 890), 453. 
 Duryee v. New York (96 N. Y. 477), 
 
 526. 
 Dye V. Delaware, etc. R. Co. (130 N. 
 
 Y. 671, 45 Alb. L. J. 155), 480. 
 Dyer v. Chase (52 Cal. 440), 130. 
 
 Eastman v. Clackamas (32 Fed. Rep. 
 24), 118, 123. 
 V. Meredith (36 N. H. 284, 
 72 Am. Dec. 302), 69, 
 82, 106, 283, 299, 303, 
 338. 
 V. Sanborn (85 Mass. [3 Al- 
 len] 594, 81 Am. Dec. 
 677), 520. 
 East Tennessee, etc. R. Co. v. Bay- 
 
 liss (74 Ala. 150), 467. 
 Easton v. NefF (102 Pa. 474, 48 Am. 
 Rep. 213), 60. 
 
References ~| 
 T to pages. \ 
 
 TABLE OF CASES. 
 
 XXXI 
 
 ccles V. Darragh (48 N. Y. Supp. 
 
 528), 180. 
 dger'.y v. Concord (59 N. H. 78),45, 
 
 160, 338, 341. 
 dgerton v. New York, etc. R. Co. 
 
 (39 N. Y. 227), 446. 
 dmonson v. Moberly (Mo.) (28 Am. 
 
 & Eng. C. C. 345), 274. 
 dwards v. Pocahontas (47 Fed. Rep. 
 268, 44 Alb. L. J. 363), 
 
 54. 
 V. Union Bank of Florida (i 
 Fla. 136), 26. 
 hrgott V. New York (96 N. Y. 264, 
 48 Am. Rep. 622), loi, 230, 318, 
 383,394,492, 515, 529, 535.. 
 ikenberry v. Bazaar (22 Kas. 556, 
 31 Am. Rep. 19S), 128. 
 Igin ^. Kimball (90 111. 356), 295. 
 Ikbart v. Ritter (66 Ind. 136), 154, 
 233. 
 V. Witman (122 Ind. 538, 
 23 N. E. 796), 427. 
 lliott V. Lisbon (57 N. H. 28), 106. 
 V. Philadelphia (75 Pa. 347, 15 
 Am. Rep. 591), 39, 41, 
 
 329- 
 V. Van Buren (33 Mich. 49, 20 
 Am. Rep. 668), 505. 
 iUis V. Iowa City (29 la. 229), 59, 
 270. 
 V. Lake Shore, etc. R. Co. (21 
 Atl. Rep. 140), 9. 
 Imendorf V. Taylor (10 Wheat [U. 
 S.] 152, 159), 85. 
 
 Imer V. Fe.ssenden (151 Mass. 359, 
 S L. R. A. 724), 384. 
 Imore v. Drainage Comrs. (III.) (25 
 N. E. Rep. loio), 317. 
 ly V. Campbell (N. Y.) (59 How. Pr. 
 
 333). 152- 
 V. St. Louis, etc. Railway (77 Mo. 
 
 34)> 482, 
 lyton Land Co. v. Nimgrea (Ala.) (7 
 
 So. Rep. 666), 420. 
 mbler v. VVallkill (43 N. Y. St. Rep. 
 
 631, 57 Hun 384), 194, 442. 
 
 mery V. Lowell (104 Mass. 13), 51, 
 
 83, 275, 286, 295, 298. 
 rifield, etc. Co. v. Hartford, etc. R. 
 
 Co. (17 Conn. 40, 42 Am. Dec. 
 
 716), 210. 
 
 ngel V. Smith (82 Mich. l), 442. 
 
 nright v. Atlanta (78 Ga. 288), 185, 
 
 435- 
 
 nsign V. Livingston County (N. Y.) 
 (25 Hun 200), 125. 
 
 Erie v. Caulkins (85 Pa. 247, 27 Am. 
 Rep. 642), 327. 
 V. Magill (loi Pa. 6i6, 47 Am. 
 
 Rep. 739). 427. 442. 
 V. Schwingler (22 Pa. 384, 60 
 Am. Dec. 87), 104, 139, 141. 
 City P. R. Co. V. Schuster (113 
 Pa. 412, 57 Am. Rep. 471, 6 
 All. 269), 419, 420. 
 School Dist. V. Fuess (98 Pa. 600, 
 42 Am. Rep. 627), 324. 
 Escanaba Co. v. Chicago (107 U. S. 
 
 678), 212. 
 Estelle V. Lake Crystal (27 Minn. 
 
 243). 13s, 365. 
 Estes V. China (56 Me. 407), 299, 
 
 315- 
 Etheridge v. Philadelphia (26 Fed. 
 
 Rep. 43), 104. 
 Eubanks v. Edina (88 Mo. 650, 4 W. 
 
 Rep. 626), 151, 488. 
 Eudora v. Miller (30 Kas. 494), 229, 
 
 231. 435- 
 Eulaula v. Simmons (86 Ala. 515, 6 
 
 So. 47), 525. 
 Evans v. North Side, etc. Co. (26 Fed. 
 
 Rep. 718), 212. 
 Evanston v. Gunn (99 U. S. 660), 100, 
 
 488. 
 Evansville v. Decker (84 Ind. 325, 43 
 Am. Kep. 86), 270, 
 275. 
 V. Wilter (86 Ind. 4r4), 
 
 186. 
 & C. R. Co. v. Wolf (59 
 Ind. 90), 412, 420. 
 Eveleigh v. Houesfield (N. Y.) (34 
 
 Hun 140), 126, 137. 
 Everson v. Syracuse (100 N. Y. 577, 
 
 3 N. E. 784), 329- 
 Eyler v. Allegheny Co. Com. (49 Md. 
 257, 33 Am. Rep. 249), 227. 
 
 Face v. Ionia (51 N. W. Rep. 184), 
 
 260. 
 Fair v. Philadelphia (88 Pa. 309, 32 
 
 Am. Rep. 455), 269, 271. 
 Famsworth v. Mt. Holly (22 Atl. Rep. 
 
 459), 250. 
 Farnum v. Concord (2 N. H. 392), 
 
 82, 106, 248, 249. 
 Farquar v. Roseburg (18 Ore. 271, 17 
 
 Am. St. Rep. 732), 104, 149. 
 Farrell v. Oldtown (69 Me. 72), 153. 
 V. Waterbury Horse Railroad 
 Co. (60 Conn. 239, 21 
 Atl. 67s), 11,467. 
 
XXXll 
 
 TABLE OF CASES. 
 
 r Refen 
 \_are to j 
 
 Farrington v. Anson (77 Me. 406), 
 
 316. 
 Farwell v. Boston, etc. Railroad (45 
 
 Mass. 49, 38 Am. Dec. 339), 490. 
 Fassett v. Roxbury (55 Vt. 552), 
 
 II. 
 Faulkner v. Aurora (85 Ind. 130, 44 
 
 Am. Rep. i), 61, 167. 
 Fauvia v. New Orleans (20 La. Ann. 
 
 410), 41. 
 Fawcett v. Pittsburg Ry. (24 W. Va. 
 
 755). 387- 
 Fellowes v. New Haven (44 Conn. 
 
 240, 26 Am. Rep. 447), 280. 
 Fennimore v. New Orleans (20 La. 
 
 Ann. 124), 71. 
 Ferguson v. Davis Co. (57 la. 601), 
 187, 222, 509. 
 V. Earl ofs Kinnoull (9 CI. 
 & F. 251), 94, 490. 
 Field V. Des Moines (39 la. 575, 18 
 Am. Rep. 46), 45. 
 V. West Orange (36 N. J. Eq. 
 118, 46 N. J. Eq. 183, 29 
 Alb. L. J. 397), 271, 278. 
 Finch V. Board ot Education (30 Ohio 
 St. 37. 27 Am. Rep. 414), 59, 118, 
 128, 317. 
 Fineux v. Hovenden (Cro. E. 664), 
 
 23- 
 Fink V. St. Louis (71 Mo. 52), 154. 
 Fire Insurance Patrol v. Boyd (120 
 
 Pa. 624, 29 Am. & Eng. C. C. 633, 
 
 15 Atl. 553), 50. 
 Fish v. Dodge (N. Y.) (38 Barb. 163), 
 
 31- 
 
 V. Waite (104 Mass. 71), 64. 
 
 Fisher v. Boston (104 Mass. 87, 6 
 
 Am. Rep. 196), 40, 43, 
 
 46, 48, 51, 283, 308, 309. 
 
 V. Cambridge (N. Y.) (57 
 
 Hun 296), 441. 
 V. Thiskell (21 Mich, i, 4 
 Am. Rep. 422), 175. 
 Fisher's case (53 111. 470), 493. 
 Fishkill V. Plank-road Co. (N. Y.) (22 
 
 Barb. 645), 125. 
 Fiske V. B'orsyth Dyeing Co. (57 
 
 Conn. 118, 17 Atl. 356), 467. 
 Fitzgerald v. Berlin {51 Wis. 81, 37 
 Am. Rep. 814, 7 N. 
 W. 836), 192. 
 V. Berlin (64 Wis. 203, 24 
 
 N. W. 879), 146. 
 V. Binghamton (N. Y.) 
 (40 Hun 332), 135, 
 169. 
 
 Fitzgerald v. St. Paul (29 Minn. 
 8 Am. & Eng. ( 
 310), 412, 419. 
 V. Troy (N. Y.) (54 , 
 
 633). 164. 
 V. Woburn (109 U 
 204), 204, 206. 
 Fitzpatrick v. Slocum (89 N. Y. ; 
 
 169. 
 Flagg V. Hudson (142 Mass. 28 
 N. E. 652, 56 Am. Rep. 674), 
 
 385- 
 Flanders v. Norwood (141 Mass. 
 
 5 N. E. 256), 155, 243. 
 Flater v. Fay (70 Mich. 644, 38 N, 
 
 656), 164. 
 Fleming v. Lock Haven (Pa.) (i 5 
 N. C. 2i6), 427, 44: 
 V. Manchester (44 L. T 
 S. 517), 276. 
 Fletcher v. Rylands (L. R. 3 H 
 330), 322. 
 V. Scotten (74 Mich. 212 
 N. W. goi), 135. 
 Flora v. Nancy (26 N. E. Rep. 
 affi'g 31 III. App. 493). 174. 
 427. 
 Flori v. St. Louis (69 Mo. 341, 30 
 App. 231, 18 Am. Rep. 504), 
 302, 524. 
 Floyd v. Sugden (134 Mass. 5 
 
 330- 
 Flynn v. Canton Co. (40 Md. 312 
 Am. Rep. 603), 174, 
 208. 
 v. Kurd (n8 N. Y. 19, 22 
 
 E. 1 109), 230. 
 V. Taylor (127 N. Y. 596, 5 
 64, 180. 
 Foels v. Tonawanda (60 Hun 5 
 
 515. 
 Fogg V. Nahant (98 Mass. 578, 
 
 Mass. 278), 378. 
 Foley V. Troy (N. Y.) (45 Hun 3 
 
 201. 
 Fopper V. Wheatland (59 Wis. 1 
 
 18N. W. 514), 159. 
 Forbes v. Board of Health (Fla.) 
 
 Alb. L. J. 349), 44. 
 Ford V. Braintree (23 Atl. Rep. 6 
 250. 
 V. School District (121 Pa. 
 15 Atl. 812), 59, 122. 
 V. Umatilla Co. (Or.) (l6 1 
 Rep. 33), 234. 
 Foreman v. Canterbury (L. R. 6 (^ 
 214), 94, 151. 
 
References ~| 
 re to pages. ^ 
 
 TABLE OF CASES. 
 
 XXXIU 
 
 'orker V. Sandy Lake Borough (130 
 
 Pa. 123, 18 Atl. 609), 190, 430, 435. 
 
 'orks Tp. V. King (81 Pa. 230), 122, 
 
 434- 
 'orney V. Geldmacher (75 Mo. 113, 
 
 42 Am. Rep. 388, 13 Rep. 790), 
 
 382. 
 "orsyth v. Atlanta (45 Ga. 152), 42. 
 "ort Plain Bridge Co. v. Smith (30 N. 
 
 Y. 44), 212. 
 "ort Smith v. York (52 Ark. 84, 12 S. 
 
 W. 157), 105. 
 "ort Wayne v. Breese (123 Ind. 581, 
 23 N. E. 1038), 427, 
 
 433- 
 V. Coombs (107 Ind. 75, 
 57 Am. Rep. 82, 7 
 N. E. 743), 234, 273, 
 
 274. 353- 
 "ort Worth v. Crawford (64 Tex. 202, 
 S3 Am. Rep. 753, 74 Tex. 404, 12 
 S. W. 52), 104, 311. 
 'ortin V. Easthampton (145 Mass. 
 196, 5 N. E. 162, 27 Alb. L. J. 227), 
 205. 
 "ortman v. Brooklyn (N.Y.) (50 Barb. 
 
 365), 168. 
 'oster V. Lookout Water Co. (Tenn.) 
 (3 Lea 42), 46. 
 V. St. Louis (71 Mo. 157), 221, 
 272, 276. 
 "oshay v. Glen Haven (25 Wis. 288), 
 
 160, 381. 
 'owle V. Alexandria (3 Peters [U. S.] 
 
 398), 42. 
 "ovvler V. Strawberry Hill (74 la. 644, 
 
 38 N. W. 521), 324, 380. 
 'ox V. Glastenbury (29 Conn. 204), 
 
 432. 
 V. Peninsular, etc. Works (84 
 
 Mich. 676, 48 N. W. 203), 
 
 485. 
 V. Sackett (92 Mass. [10 Allen] 
 
 535). 459- ^ ^^ ^ 
 'oxworthy v. Hastings (23 Neb. 772, 
 
 25 Neb. 133, 48 N. W. 901), 171, 
 
 175, 200. 
 'rancis v. St. L. Transfer Co. (5 Mo. 
 
 App. 7). 395- , . . . ^ 
 ranklin v. Harter (127 Ind. 446, 26 
 N. E. 882), 189, 472. 
 V. Southern Cal. Motor Road 
 Co. (85 Cal. 63), 9. 
 ranklin Wharf Co. v. Portland (67 
 Me. 46, 24 Am. Rep. i), 274, 279. 
 raser v. Tompkins (N. Y.) (30 Hun 
 fi68), 126. 
 C 
 
 Frazer v. Lewiston (76 Me. 531), 105. 
 
 Freburg v. Davenport (63 la. 119, 50 
 
 Am. Rep. 737, 18 N. W. 705), 271, 
 
 280. 
 
 Freeholdersv. Strader(i8N. J. L. 108, 
 
 35 Am. Dec. 530), 220, 283, 296. 
 Freeport v. Isbell (83 111. 440, 25 Am. 
 
 Rep. 407), 163, 190. 
 French v. Boston (129 Mass. 592, 37 
 Am. Rep. 393), 235. 
 V. Brunswick (21 Me. 29, 38 
 Am. Dec. 250), 194. 
 Fritsch v. Allegheny (91 Pa. 226), 160, 
 
 162, 361. 
 Frostburg v. Dufty (70 Md. 47), 272. 
 V. Hitchins (70 Md. 56), 
 269, 272. 
 Fry V. Dubuque & S. W. Ry. Co. (45 
 
 la. 416), 509. 
 Fuller V. Atlanta (66 Ga. 80), 280. 
 
 V. Jackson (82 Mich. 480, 46 
 N. W. 721, 10 L. R. A. 
 738), 136, 174, 357, 486. 
 FuUiam v. Muscatine (70 la. 436, 30 
 
 N. W. 86), 144, 147, 175, 427. 
 Fulsome v. Concord (46 Vt. 135), 
 
 383- 
 Fulton V. Tucker (N. Y.) (3 Hun 529), 
 
 337- 
 Fulton Bank v. N. Y., etc. Canal Co. 
 
 (4 Paige 127J, 358. 
 Fulton County Com. v. Rickel (106 
 
 Ind. 501, 7 N. E. 220), 123, 392. 
 Fulton Iron, etc. Works v. Kimball 
 
 Tp. (Mich.) (2 Am. & Eng. C. C. 
 
 673), 2 1 8. 
 Furnell v. St. Paul (20 Minn. 198), 
 
 187. 
 Furnish v. Missouri Pac. Ry.Co. (15 
 
 S. W. Rep. 315), 522. 
 
 G. R., etc. R. Co. v. Huntly (38 Micri. 
 
 540), 358. 
 Gage V. Hornellsville (106 N. Y. 667, 
 
 12 N. E. 817), 263. 
 Gahagan v. Boston & L. R. Co. (83 
 
 Mass. [i Allen] 187), 459. 
 Gailor v. Herrick (N. Y.) (42 Barb. 
 
 79). 125. 
 Gainesville v. Caldwell (81 Ga. 76), 
 
 193- 
 Galen v. Plank-road Co. (N. Y.) (27 
 
 Barb. 543), 125. 
 Galesburg v. Benedict (22 111. App. 
 
 in), 263. 
 Gallagher v. St. Paul (28 Fed. Rep. 
 
 305), 13s, 151. 
 
XXXIV 
 
 TABLE OF CASES. 
 
 C References 
 are to pages. 
 
 Gallatin v. Loucks (N. Y.) (31 Barb. 
 
 578), 125. 
 Galveston v. Barbour (62 Tex. 172), 
 
 523- 
 V. Hemmis (28 Am. & Eng. 
 
 C. C. 265), 131. 
 V. Posnainsky (62 Texas 
 118, 50 Am. Rep. 517), 
 33, 104, 124, 190, 383. 
 V. Smith (Tex.) (15 S. W. 
 Rep. 589), 362, 365. 
 Galveston, etc. R. Co. v. Moore (59 
 Tex. 64, 10 Am. & Eng. C. C. 745). 
 419. 
 Galvin v. Hospital (12 R. I. 411), 44. 
 V. New York (112 N. Y. 223, 
 19 N. E. 675), 154, 189, 
 305, 434, 463, 464, 465. 
 Garrett v. Canandaigua (40 N. Y. St. 
 Rep. 944, 16 N. Y. Supp. 717), 269. 
 Garrison v. New York (5 Bosw. 497), 
 
 477- 
 Gaskins v. Atlanta (73 Ga. 746), 163, 
 
 164. 
 Gaudin v. Carthage (36 N. Y. St. 
 
 Rep. 308), 393. 
 Gaughan v. Philadelphia (119 Pa. 
 
 503, 12 Cent. Rep. 143), 177. 
 Gaylor v. New Britain (58 Conn. 398, 
 
 8 L. R. A. 752, 20 Atl. 365), 203, 206. 
 Gaynor v. Old Colony & N. R. Co. 
 
 (100 Mass. 212), 459. 
 George v. Haverhill (110 Mass. 506), 
 
 427, 429. 
 Georgia Midland Railroad Co. v. 
 Evans (13 S. E. Rep. 
 580), 8. 
 Pac. Ry. V. Davis (Ala.) (9 
 So. Rep. 252), 453. 
 Gerald v. Boston (io8 Mass. 580, 
 
 584), 19s, 204, 435. 
 Getty V. Hamlin (127 N. Y. 636, 27 
 
 N. E. Rep. 399), 485. 
 Geveke v. Railroad Co. (57 Mich. 596, 
 
 24 N. W. Rep. 678), 497. 
 Gibbons v. Williams (135 Mass. 333), 
 
 412. 419- 
 Gibbs V. Liverpool Docks (3 H. & N. 
 
 164), 119. 
 Gibraltar Commissioners v. Orfila (L. 
 R. 15 App. Cas. 408, 63 L. T. 58), 
 93. 294- 
 Gibson V. Johnson (4 111. App. 288), 
 200. 
 V. Mayor of Preston (L. R. 5 
 Q. B. 218), 94, 96. 
 Giddings v. Ira (54 Vt. 346), 250. 
 
 Gilbert v. Boston (139 Mass. 313), 
 
 V 427- 
 V. Flint, etc. R. Co. (51 Mich. 
 488, 16N.W. 868), i6i. 
 V. Roxbury (ico Mass. 185), 
 
 200. 
 V. Trinity House (L. R. 17 
 Q. B. D. 795), 96, 119, 
 292. 
 Gill V. Harringhausen (48 N. W. Rep. 
 
 862), 453. 
 Gilligan v. N. Y. etc. R. Co. (N. Y.) 
 
 (I E. D. Smith 453), 533. 
 Gillison v. Charleston (16 W. Va. 282, 
 
 37 Am. Rep. 763), 270. 
 Gillrie v. Lockport (122 N. Y. 403), 
 
 loi, 205, 477. 
 Gilluly V. Madison (63 Wis. 510, 52 
 
 Am. Rep. 299), 271, 295. 
 Gilman v. Deerfield (81 Mass. [15 
 Gray] 577), 429. 
 v. Laconia (55 N. H. 137, 20 
 Am. Rep. 175), 106. 
 Gilmartin v. New York (55 Barb. 239), 
 
 193- 
 Gilmer v. Atlanta (77 Ga. 688), 477. 
 Gilmore v. Driscoll (122 Mass. 199, 
 
 23 Am. Rep. 313), 281. 
 Glazier v. Hebron (16 N. Y. Supp. 
 
 503, 60 Hun 137), 159, 264. 
 Glantz v. South Bend (106 Ind. 305, 
 
 6 N. E. 632), 150. 
 Glassop V. Heston, etc. Local Board 
 
 (L. R. 12 Ch. Div. 102), 60, 296. 
 Gleeson v. Virginia Midland Railway 
 
 Co. (140 U. S. 435), 9. 
 Glidden v. Reading (38 Vt. 52), 157. 
 Goeltz v. Ashland (75 Wis. 642, 44 
 
 N. W. 770), 106, 262. 
 Goldsmith v. London (11 O. R. 26 Q. 
 
 B. D.), 92, 187. 
 Goldsmid v. Tunbridge, etc. Co. (L. R. 
 
 I Eq. Cas. 161), 369. 
 Goldsworthy v. Linden (75 Wis. 24, 
 
 43 N. W. 656), 262, 357. 
 Goodfellow V. New York (100 N. Y. 
 
 IS, 2N. E. 462); 151, 185, 359. 
 Goodin v. Des Monies (55 la. 67, 7 
 
 N. W. 411), 160, 192. 
 Goodnough v. Oshkosh (24 Wis. 5491, 
 
 362. 
 Gordon v. Richmond (83 Va. 436, 2 
 S. E. 727), 164. 
 V. Taunton (126 Mass. 349), 
 
 Gorham v. Cooperstown (59 N, Y. 
 660), 160. 
 
References ~\ 
 *-e to pages. \ 
 
 TABLE OF CASES. 
 
 XXXV 
 
 lorham v. Gross (125 Mass. 232, 28 
 Am. Rep. 234), 243. 
 ioshen v. England (i 19 Ind. 368, 5 
 L. R. A. 253, 21 N. E. 
 977), 102. 
 V. Mej'ers (119 Ind. 196, 21 
 N. E. 657), I02, 226, 
 229. 
 rosport V. Evans (112 Ind. 133, 13 
 N, E. 256), 433, 434. 
 lould V. Boston (120 Mass. 300), 240, 
 295. 
 V. Rochester (105 N. Y. 46, 12 
 
 N. E. 275), 274. 
 V. Topeka (32 Kan. 485, 49 
 Am. Rep. 496, 4 Pac. 
 822), 140, 163, 184, 276. 
 Government St. R. Co. v. Hanlon 
 (S3 Ala. 70), 412. 
 Iraham v. Albert Lea (Minn.) (50 N. 
 W. Rep, 1 108), 175. 
 Irand Rapids v. Wyman (46 Mich. 
 516), 259, 366. 
 rranger v. Pulaski (26 Ark. 37), 
 
 128. 
 Irant v. Brooklyn (N. Y.) (41 Barb. 
 38i),499, 530. 
 V. Erie (69 Pa. 420, 8 Am. Rep. 
 
 272), 46. 
 V. Sligo Harbor Com. (10 Ir. 
 
 R. C. L. 190), 71. 
 
 V. Stillwater (35 Minn. 242, 28 
 
 N. W. 600), 224. 
 
 ■rassick v. Toronto (39 U. C. Q. B. 
 
 306), 92. 
 
 raves v. Shattuck (35 N. H. 257), 
 
 381. 
 
 ■ray v. Brooklyn (N. Y.) (50 Barb. 
 365), 168. 
 V. Harris (107 Mass. 492, 9 Am. 
 Rep. 61), 217. 
 rayville v. Whitaker (85 111. 439), 
 220, 231. 
 
 reen v. Harrison County (61 la. 311, 
 16 N. W. 136), 123. 
 reene County v. Eubanks (80 Ala. 
 204), 126. 
 reenland v. Chaplin (5 Ex. Ch. 248), 
 
 375- 491- 
 
 reenleaf v. Norridgewock (82 Me. 
 62), 245. 
 
 reenwood v. Louisville (13 Ky. 226), 
 46, 103. 
 regory, The D. S. (2 Ben. 226, 9 
 
 Wall. 513), 502. 
 V. Adams (80 Mass. 242), 
 
 218. 
 
 Gridley v. Bloomington (68 111. 47, 30 
 Am. Rep. 566), 175, 208, 335, 336. 
 Griffin v. Johnson (84 Ga. 279, 10 S. 
 E. 719), 231, 366. 
 V. New York (9 N. Y. 456, 61 
 
 Am. Dec. 700), 362. 
 V. Sanborn ton (44 N. H. 246), 
 
 195- 
 Griffith V. Baltimore, etc. R. Co. (i^ 
 
 Fed. Rep. 574), 453. 
 Griggs V. Fleckenstein (14 Minn. 81), 
 
 386. 
 Grimes v. Keene (52 N. H. 335), 76, 
 
 151. 154- 
 Griswold v. New York, etc. R. Co. 
 (nS N. Y. 61, 21 N. E. 726), 534. 
 Grogan v. Broadway Foundry Co. 
 (87 Mo. 3Z1), 194. 
 v. Worcester (140 Mass. 
 227, 4 N. E. 230), 243. 
 Gross V. Lampasas (74 Tex. 195, 11 
 
 S. W. 1086), 271. 
 Grossenbach v. Milwaukee (65 Wis. 
 31, 56 Am. Rep. 614, 26 N. W. 
 182), 1 86. 
 Grove v. Fort Wayne (45 Ind. 429, 28 
 Am. Rep. 657), 102, 153, 
 194. 
 v. Kansas City (75 Mo. 672), 
 189. 
 Grube v. St. Paul (34 Minn. 402, 26 
 
 N. W. 228), 46. 
 Gubasko v. New York (12 Daly 183), 
 
 193- 
 Gude v. Mankato (30 Minn. 256, ij 
 
 N.W. 175), 357. 
 Guille v. Swan (N. Y.) (19 Johns. 
 
 381). 382. 
 Gulf, etc. V. McWhirter (j-j Tex. 356, 
 
 14 S. W. 26), 420. 
 GuUine v. Lowell (144 Mass. 491, 4 
 
 N. E. 239, 6 L. R. A. 536), 240, 
 
 425. 434- 
 Gumb V. Twenty-third St. R. Co. 
 
 (114 N. Y. 411, 21 N. E. 993), 533. 
 Guy V. Cambridge (128 Mass. 387), 
 
 244. 
 
 Haffiard v. New Bedford (82 Mass. 
 
 [16, Gray] 297), 40, 46, 51, 283, 
 
 316. 
 Haight V. Keokuk (4 la. 199), i8o. 
 
 V. N§w York (24 Fed. Rep. 
 
 93)> 56. 
 Hale V. Smith (78 N. Y. 483), 465. 
 Hall V. Manchester (40 N. H. 410), 
 130, 249. 
 
XXXVl 
 
 TABLE OF CASES. 
 
 r References 
 \_areto pages,>- 
 
 Hallv. Tillson (8i Me. 362, 17 Atl. 
 
 302), 71. 
 Hallenbeck v. Winnebago Co. (95 111. 
 
 148, 35 Am. Rep. 151), 283. 
 Halloway v. Lockport (N. Y.) (54 
 
 Hun 183), 421. 
 Halpin v. Kansas City {^(i Mo. 335), 
 
 103, 149, 155, 190. 
 Ham V. New York (70 N. Y. 459), 
 
 48,59. 169,317,320. 
 Hamilton v. Boston (96 Mass. [14 Al- 
 len] 475), 241, 242. 
 V. Railroad Co. (51 N. Y. 
 
 100), 486. 
 V. Vicksburg, etc. R. Co. 
 
 (119 U.S. 280), 212. 
 Co. V. Garrett (62 Tex. 
 
 602), 313. 
 County V. Mighels (7 Ohio 
 
 St. 109), 109, 283, 307. 
 County V. State (113 Ind. 
 179), 211. 
 Hampson v. Taylor (15 R. I. 83, i N. 
 
 E. 117), 383- 
 Hancock Co. v. Leggett (115 Ind. 
 
 544, 18 N. E. 53), 263. 
 Hand v. Brookline (126 Mass. 324, 
 
 75. 299- 
 Handelun v. Burlington, etc. R. Co. 
 
 (72 la. 710, 32 N. W. 4), 391. 
 Haney v. Kansas City (94 Mo. 334, 7 
 
 S. W. 417), 377. 
 Haniford v. Kansas City (103 Mo. 
 172, 15 S. W. 758), 103, 224, 353. 
 536. 
 Hannan v. St. Louis County (62 Mo. 
 
 313). 285. 
 Hannibal v. Jordan (Mo.) (13 Am. & 
 Eng. C. C. 466), 276. 
 etc. R. Co. V. Missouri, etc. 
 B. Co. (12s U. S. 260), 
 213. 
 Hanscom v. Boston (141 Mass. 242, 
 
 5 N. E. 249), 243, 362, 365, 370. 
 Harder v. Minneapolis (40 Minn. 446, 
 
 42 N. W. 350), 263. 
 Hardy v. Brooklyn (90 N. Y. 436, 
 43 Am. Rep. 182), 60, 
 168. 
 V. Keene (52 N. H. 370), 194, 
 249. 
 Harold v. Simcoe (i6 U. C. C. P. 50), 
 
 92. 
 Harper v. Milwaukee (30 Wis. 365), 
 
 262, 295. 
 Harrigan v. Brooklyn (16 N. Y. Supp. 
 743). 176. 
 
 Harriman V. Boston (114 Mass. 241), 
 
 365- 
 Harrington v. Buffalo (121 N. Y. 147, 
 
 24 N. E. 186), loi, 199. 
 Harris v. Atlanta (62 Ga. 290), 39. 
 V. Baker (4 M. & S. 27), 93. 
 V. Clinton (64 Mich. 447, 31 
 N. W. 425, 7 W. 666), 
 190, 432, 471, 488. 
 V. Newbury (128 Mass. 321), 
 
 154. 
 V. Townshend (56 Vt. 716), 
 
 250. 
 V. Uebelhoer (75 N. Y. 169), 
 176, 425. 435- 
 Harrisburgh v. Taylor (87 Pa. 216), 
 
 324- 
 Harrison v. Berkley (i Strobh. 548), 
 
 519- 
 Hart V. Bridgeport (13 Blatch. 289), 
 41. 
 V. Grennell (122 N. Y. 371, 25 
 
 N.E. 354), 13. 
 V. Hudson River Bridge Co. (80 
 N. Y. 622, 84 N. Y. 56), 
 235, 446', 464. 
 V. Lancashire, etc. Railway (N, 
 S.) (21 L.T. 261, 263), 483. 
 V. Red Cedar (63 Wis. 634, 24 
 N. W. 410), 134, 442. 
 Hartfield v. Roper (N. Y.) (21 Wend. 
 615, 34 Am. Rep. 273), 407,410, 
 413, 416, 418, 419. 
 Hartford v. Talcott (48 Conn. 532, 40 
 Am. Rep. 189), 174, 
 203, 208. 
 County V. Hamilton (60 Md, 
 340, 45 Am. 
 Rep. 739), 122. 
 V. Wise (61 Md. 43, 
 29 Am. & Eng. 
 461), 214. ' 
 
 Hartvig v. N. P. Lumber Co. (Or.) 
 
 (2SPac.Rep. 358), 515. 
 Hartnall v. Ryde Commissioners (4 
 B. & S. 361, 33 L. J. Q. B. 39), 88, 
 90, 140, 235. 
 Harvey v. Hillsdale (Mich.) (49 N. W. 
 Rep. 141), 324. 
 V. Northwood (65 N. H. 117, 
 19 Atl. 653), 249. 
 Harwood v. Lowell (58 Mass. 310 [4 
 Cush.] 82, 524. 
 V. Oakham (152 Mass. 421, 
 25 N. E. 625), 232, 242. 
 Haskell v. New Bedford (108 Mass. 
 , 208), 83, 274, 279, 286, 298. 
 
Re/ere yjces ~| 
 re to pages. \ 
 
 TABLE OF cases: 
 
 xxxvu 
 
 laskell V. New Gloucester (70 Me. 
 305), 246. 
 V. Penn Yan (N. Y.) (5 Lans. 
 
 43), 357. 
 lassenyer v. Michigan Central Rail- 
 road Co. (48 Mich, 204, 42 Am. 
 Rep. 470), 8. , . 
 
 latch V. Fuller (131 Mass. 574), 505. 
 lalhaway v. Toledo, etc. R. Co. (46 
 
 Ind. 26), 419. 
 iaus V. Bethlehem (134 Pa. 12, 19 
 
 Atl. 437), 272, 302. 
 laverhill v. Groveland (152 Mass. 
 
 51.0), 230. 
 iawks V. Charlemont (107 Mass. 
 414), 216, 306, 340. 
 V. Northampton (116 Mass. 
 420), 151. 154- 
 lawxhurst v. New York (.43 Hun 
 
 588), 228. 
 rlayden v. Allyn (55 Conn. 289, 11 
 Atl. 31), 468. 
 V. Attleborough (73 Mass. 
 [7 Gray] 338), 191. 
 Sayes v. Cambridge (136 Mass. 402), 
 195, 243. 
 V. Hyde Park (153 Mass. 514, 
 12 L. R. A. 249, 47 N. E. 
 522), 153, 384. 
 V. Michigan, etc. Railroad Co 
 
 (III U.S. 228), 15.375- 
 
 Hayman v. Pennsylvania R. Co. (118 
 Pa. 508, II Atl. 815), 466. 
 
 Hays V. Oshkosh (33 Wis. 314, 14 
 Am. Rep. 706), 40, 43, 46, 284, 308, 
 
 3"- 
 Hazzard v. Council Bluffs (70 la. 106), 
 
 295. 
 Healy v. Mayor, etc. (N. Y.) (3 Hun 
 
 708), 436. 
 Hearney v. Railway Co. (47 Wis. 
 
 153, 2 N. W. 82), 381. 
 Heaven v. Pender (L. R. 11 Q. B. D. 
 
 503), 2, 7, 13, 14, 15. 
 Hedges v. ]\4adison,(6 III. 567), 127. 
 iieeg V. Licht (80 N. Y. 579, 36 Am. 
 
 Rep. 654), 64. 
 Heeney v. Sprague (i i R. I. 456, 23 
 
 Am. Rep. 502), 174, 208. 
 Heissenbuttel v. New York (30 Fed. 
 
 Rep. 456), 73. . , , , 
 
 Helena v. Thompson (29 Ark. 569), 
 
 276, 295. 
 Heller v. Sedalia (53 Mo. 1 59, 14 Am. 
 
 R. 444), 46. , , ^ o 
 
 Hendershott v. Ottumwa (46 la. 658, 
 26 Am. Rep. 182), 281. 
 
 Henderson v. Minneapolis (32 Minn. 
 
 319), 280. 
 Hendryi v. Kansas City, etc. Rail- 
 road Co, (Kas.) (25 Pac. Rep. 893), 
 
 14. 
 Henkesv. Minneapolis (42 Minn. 530, 
 
 44 N. W. 1026), 200. 
 Henley v. Lyme Regis (5 Bing. loi, 
 
 3 B. & A. 77, H. L. 8 Bli. [N. S.] 
 
 690), 89, III, 289. 
 Hennessey v. New Bedford (153 
 
 Mass. 260, 26 N. E. 299), 314. 
 Herbert V. Northampton (152 Mass. 
 
 266, 25 N. E. 467), 186. 
 
 Herrington v. Lansingburgh (no N, 
 
 Y. 145, 17 N. E. 
 
 728), 325. 
 
 V. Phoenix (N. Y.) (41 
 
 Hun 270), 154, 365, 
 
 Hesser v. Grafton (33 W. Va. 548, 1 1 
 
 S. E. 211), 427. 
 Heth V. Fond du Lac (63 Wis. 228, 
 
 23 N. W. 495), 271. 
 Hewison v. New Haven (37 Conn. 
 
 475, 91 Am. Dec. 718), 83, 105, 251, 
 
 310. 
 Hexamer v. Webb (loi N. Y. 377, 
 
 54 Am. Rep. 703, 4 N. E. 755), 
 
 180, 324. 
 Hey v. Philadelphia (81 Pa. St. 50, 22 
 
 Am. Rep. 733), 104, 379. 383- 
 Hickinbottom v. Delaware, etc. R. 
 
 Co. (15 N. Y. St. Rep. 15), 515. 
 Hickok V. Plattsburgh (N. Y.) (15 
 
 Barb. 427), loi. 
 Hickox V. Cleveland (8 Ohio 543, 32 
 
 Am. Dec. 730), 60. 
 Higert v. Greencastle (43 Ind. 574), 
 
 186. 
 Higgins V. Boston (148 Mass. 484, 20 
 
 N. E. 105), 159, 377- 
 Hildreth V. Lowell (77 Mass. [i i Gray] 
 
 345), 83. 275. 286. 
 
 Hill V. Boston (122 Mass. 344, 23 Am. 
 
 Rep. 332, 6 Am. & Eng. C. 
 
 C. 54). 52, 57, 58, 81, 108; 
 
 117, 216, 223, 282, 298, 
 
 305- 
 V. Charlotte (72 N. C. 55, 21 Am. 
 
 Rep. 451), 52,62, 65. 
 V. Fond du Lac (56 Wis. 242, 14. 
 
 N. W. 25), 174, 200, 207. 
 V. Laurens Co. (S. C.) (13 S. E. 
 
 Rep. 318), 120. 
 V. Winsor (u8 Mass. 251), 492. 
 Hiller v. Sharon Springs (N. Y.) (.28 
 Hun 344), 134. 
 
xxxvni 
 
 TABLE OF CASES. 
 
 [References 
 are.to pa'gesi 
 
 Hilsdorf V. St. Louis (45 Mo. 94, 100 
 
 Am. Dec. 352), 313. 
 Hinckley v. Cape Cod R. Co. (120 
 Mass. 265), 456, 459. 
 v. Penobscot (42 Me. 89), 
 
 437- 
 V. Somerset (145 Mass. 326, 
 5 N. E. 375), 160. 
 Hincks v. Milwaukee (46 Wis. 565, 32 
 
 Am. Rep. 735), 170, 324. 
 Hinds V. Marshall (Mo.) (S W. Rep. 
 
 73). 534. 
 Hinerv. Fond du Lac (71 Wis. 74, 
 
 36 N. W. 632), 106. 
 Hines v. Charlotte (40 N. W. Rep. 
 
 333). 61 • 
 V. Lockport (50 N. Y. 239), 
 
 137. 139. 174. 277- 
 Hitchins v. Frostburg (68 Md. 100, 20 
 
 Am. & Eng. C. C. 400), 214, 215, 
 
 275. 
 Hite V. County Court (Ky.) (15 S. W. 
 
 Rep. 57), 307. 
 Hixon V. Lowell (79 Mass. [13 Gray] 
 
 59), 82, 207. 
 Hoag V. New York, etc. R. Co. (i 1 1 
 N. Y. 199, 18 N. E. 648), 
 
 463. 
 V. Commissioners (60 Ind. 
 
 511), 66. 
 V. Lake Shore, etc. R. Co. (85 
 Pa. 293, 27 Am. Rep. 653), 
 466. 
 Hoard v. Des Moines (63 la. 326, 17 
 
 N. W. 527), 283. 
 Hobart v. Plymouth (100 Mass. 159), 
 
 458. 
 Hobbs V. L. & S. W. R. Co. (L. R. 
 
 loQ. B. Ill), 395. 
 Hobson V. New Mexico, etc. R. Co. 
 
 (Ariz.) (11 Pac. Rep. 545), 453. 
 Hodges V. Percival (132 111. 53, 23 N. 
 E. 423), 482, 485. 
 V. Bearse (129 HI. 87, 21 N. 
 E. 613), 478. 
 Hoey V. Natick (153 Mass. 528), 154. 
 Holbrook v. Utica, etc. R. Co. (12 N. 
 
 Y. 236, 64 Am. Dec. 502), 448. 
 Holcomb V. Danby (51 Vt. 428)1439. 
 Holdane v. Cold Spring (21 N. Y. 
 
 ■ 474). 135- 
 
 Holland v. Bartch (120 Ind. 46, 16 
 
 Am. St. Rep. 307, 22 N. E. 83), 187. 
 Hollenbeck v. Winnebago (95 III. 148, 
 
 35 Am. Rep. 151), 307. 
 Holloway v. Lockport (61 N. Y. Sup. 
 
 Ct. 153). 433- 
 
 Holman v. Townsend (54 Mass. [13 
 
 Met.] 2971, 298. 
 Holmes v. Paris (75 Me. 559), 353. 
 Holyoke v. Grand Trunk Railway (48 
 
 NT. H. 541), 508. 
 Hooker V. Rochester (N. Y.) (37 Hun 
 
 181), 274. 
 Hopkins v. Ogden City (5 Utah 390), 
 
 154. 
 V. Rush I^ii'er (70 Wis. 10, 
 34 N. W. 909), 427. 
 Horn V. Baltimore (30 Md. 218), 337. 
 Home V. Rochester (62 N. H. 347), 
 
 249. 
 Horrigan v. Clarksburg (150 Mass. 
 218, 5 L. R. A. 609, 22 N. E. 897), 
 242, 384, 425. 
 Horton v. Ipswich (66 Mass. [12 
 Cush.] 488), 432. 
 V. Nashville (Tenn.) (4 Lea 
 47). 60. 
 Houfe V. Fulton (34 Wis. 608, 17 Am, 
 
 Rep. 463), 160, 190, 226, 340. 
 Hough V. Railroad Co. (100 U. S. 
 
 213), 452, 467. 
 Houghkirk v. D. & H. Canal Co. (92 
 
 N. Y. 219), 521, 536. 
 House V. Metcalf (27 Conn. 631), 
 
 477- 
 V. Montgomery County (60 
 Ind. 580), 123. 
 Houston V. Isaacks (68 Tex. 116, 3 
 S. W. 693), 353. 
 etc. Railway Co. v. Smith 
 {11 Tex. 179, 13 S. W. 
 972), 8. 
 Hover v. Barkhoof (44 N. Y. 113), 
 
 125. 
 Hovey v. Village of Haverstraw (124 
 
 N. Y. 273), 134. 
 How V. New Orleans (12 La. Ann. 
 
 481), 61. 
 Howard County Com. v. Legg (93 
 Ind. 523, 47 Am. Rep. 390, no 
 Ind. 479, II N. E. 614), 123, 128, 
 
 367. 369. 
 Howard v. San Francisco (51 Cal, 
 52), 45, 46. 
 v. Worcester (153 Mass. 
 426, 12 L. R. A. 160, 
 27 N. E. 11), 59, 282, 
 285. 
 Howe V. Plainfield (41 N. H. 135), 
 
 249. 
 Howell V.Buffalo (15 N. Y. 522), 337. 
 Howes v. Ashfield (99 Mass. 540), 
 504- 
 
Referefices 1 
 are to pages, \ 
 
 TABLE OF CASES. 
 
 XXXIX 
 
 Hoy V. Philadelphia (8i Pa. 44, 22 
 
 Am. Rep. 733), 191. 
 Hoye V. Railroad Co. (67 Wis. 1 5, 29 
 
 N. W. 646), 453. 
 Hoyt V. Hudson (27 Wis. 656, 9 Am. 
 
 Rep. 473), 60. 
 Hubbard v. A. & K. R. Co. (39 Me. 
 506), 478. 
 V. Concord (35 N. H. 52, 
 69 Am. Dec. 520), 
 203, 249, 432, 478. 
 V. Mason City (60 la. 400, 
 14 N. W. 772), 435. 
 Hubbell V. Viroqua {fi^ Wis. 343, 58 
 Am. Rep. 866, 30 N. W. 
 847), 61, 167. 
 V. Yonkers (104 N. Y. 434, 
 
 58 Am. Rep. 522, 10 N. 
 E. 858), 159, 182, 278. 
 
 Hudson V. Chicago, etc. R. R. Co. 
 
 59 la. 581, 44 Am. Rep. 
 692, 13 N.W.735), 478. 
 
 V. Marlborough (Mass.) (28 
 N. E. Rep. 147), 159, 
 192. 
 V. Railroad Co. (104 N. C. 
 491, 10 S. E. 669), 457. 
 Huff V. Ames (16 Neb. 139, 49 Am. 
 Rep. 716), 419, 420. 
 V. Austin (46 Ohio St. 389, 21 
 
 N. E. 864), 446. 
 V. Powesheik County (60 la. 
 529, 15 N. W. 418), 123. 
 Huffman v. San Joaquin County (21 
 
 Cal. 426), 105. 
 Hughes V. Boston (112 Mass. 43), 
 223. 
 V. Fond du Lac (73 Wis. 
 380, 41 N. W. 407), 
 160, 161, 353. 
 Hull V. Kansas City (54 Mo. 598), 
 
 154,383. 
 V. Richmond (2 W. & M. 337), 
 
 145. 
 Hume V. New York (74 N. Y. 264), 
 
 193. 365- 
 Humphreys v. Armstrong Co. (3 
 
 Brewster 49), 122, 233, 234, 434. 
 Hundhausen v. Bond (36 Wis. 31), 
 
 I7S- 
 Hunsaker v. Borden (5 Cal. 288, 63 
 
 Am. Dec. 130), 105, 118. 
 Hunt V. Booneville (65 Mo. 620, 27 
 Am. Rep. 299), 495. 
 V. New York (109 N. Y. 134, 
 16 N. E. 320), 199, 231, 
 308, 368, 446. 
 
 Hunt V. Pennell (9 Vt. 411), 391. 
 
 V. Pennsylvania R.R. Co. (51 
 
 Pa. 475), 327. 
 V. Pownal (9 Vt. 411), 388. 
 Hunter v. Cooperstown, etc. R. Co. 
 
 (126 N. Y. 18), 442. 
 Huston V. Iowa County (43 la. 456), 
 
 123. 
 Hutchins v. Holyoke (105 Mass. 82), 
 
 204. 
 Hutchinson v. Concord (41 Vt. 271, 
 98 Am. Dec. 584), 
 167. 
 V. Filk (Minn.) (47 N. 
 W. Rep. 255), 117. 
 V. Olympia (2 Wash. T. 
 314, S Pac. 606), 
 104. 
 V. Western, etc. R. Co. 
 (53 Tenn. 634), 
 344. 
 Hutson V. New York (9 N. Y. 163, 59 
 
 Am. Dec. 526), 27, loi, 154, 295. 
 Hyatt V. Rondout (44 Barb. 395, 41 
 
 N. Y. 619), 174, 231. 
 Hyde v. Jamaica (27 Vt.443), 82, 106, 
 427. 
 V. Stone (N. Y.) (7 Wend. 354, 
 22 Am. Dec. 582), 526. 
 
 Ihl V. Forty-second St. R.R. Co. (47 
 
 N. Y. 317, 7 Am. Rep. 450), 410, 
 
 411, 521. 
 Iltidge V. Goodwin (5 Car. & P. 190), 
 
 386. 
 Illinois, etc. R. Co. v. Slater (129 III. 
 
 91, 21 N. E. 575), 425. 
 Imler V. Springfield (55 Mo. 119,17 
 
 Am. Rep. 645), 273. 
 Indianapolis, etc. R. Co. v. Birney (71 
 
 111- 391), 395- 
 Indianapohs v. Cook(99lnd. 10), 132, 
 
 151,442. 
 V. Doherty (71 Ind. 5), 
 
 148, 224. 
 V. Emmelman (108 Ind. 
 
 530, 16 Am. Rep. 
 
 624, 9 N. E. 155), 
 
 177, 190, 412. 
 V. Gaston (58 Ind. 224), 
 
 144. 233. 
 V. Huffer (30 Ind. 235), 
 
 270, 275, 276. 
 V. Lawyer (38 Ind. 348), 
 
 270, 276. 
 V. Murphy (91 Ind. 382), 
 
 174, 362. 
 
xl 
 
 TABLE OF CASES. 
 
 ERe/ereneiss 
 are to pages. 
 
 Indianapolis v. Scott (72 Ind. 196, 
 197), 186, 367. 
 V. Tate (39 Ind. 282), 
 270, 276. 
 Indianapolis, etc. Railroad v. Horst 
 
 (93 U. S. 291), 452, 475. 
 Indianapolis, etc. Railway Co. v. 
 Watson (114 Ind. 20, 5 Am. St. 
 Rep. 578, 14 N. E. 721, IS N. E. 
 
 824), 473- 
 Inland & Seaboard Coasting Co. v. 
 
 Tolson (139 U. S. 551), 401, 452. 
 Inman v. Tripp (11 R. I. 520, 23 Am. 
 
 Rep. 520), 270, 274. 
 Innes v. Magistrates of Edinburgh 
 
 (Hay p. 213, Morrison's Diet, of 
 
 Decisions), 25, 90. 
 Insurance Co. v. Boone (95 U. S. 117), 
 520. 
 V. Mosley (8 Wall. [U. 
 S.] 405), 505. 
 International Ry. Co. v. Terry (62 
 
 Tex. 380, 50 Am. Rep. 529), 515. 
 Ireland v. Plank Road Co. (13 N. Y. 
 
 526), 145. 
 Ironton V. Kelley(38 Ohio St. 50), 285. 
 Ivory V. Deerp.ark (116 N. Y. 476, 22 
 
 N. E. 1080), 135, 137, 157, 379. 
 Irvin V. Fowler (N. Y.) (5 Robt. 482), 
 
 175- 
 
 Jackson v. Allegheny City (Pa.) (29 
 Am. &Eng. C. C. 411), 
 73- 
 V. Greene County i^d N. C. 
 282), 128. 
 Jacksonville v. Drew (19 Fla. 106, 45 
 Am. Rep. 5), 102, 
 226, 231. 
 V. Lambert (62 111. 519), 
 
 , , ' .„ 295. 536. 
 
 Jacksonville, etc. R. Co. v. Peninsular, 
 
 etc. Mfg. Co. (Fla.) (9 So. Rep. 661), 
 
 446. 
 Jacques v. Bridgeport Horse R.R. Co. 
 
 (41 Conn. 61, 19 Am. Rep. 483), 
 
 359- 
 James v. Harrodsburg (Ky.) (3 S. W. 
 
 Rep. 135, 8 Am. & Eng. R. Cas. 
 
 404), 43- 
 Jansen v. Atchi.=on (i6Kas. 358), 103, 
 
 174. 
 Jacquish v. Ithaca (36 Wis. 108), 355. 
 Jefferson v. Chapman (127 111. 438, 20 
 
 N. E. 33), 353. 
 JefFersonville v. Louisville, etc. Ferry 
 
 Co. (27 Ind. 100), 71. [ 
 
 Jenne v. Sutton (43 N. J. L. 257), 64. 
 Jenney v. Brooklyn (120 N. Y. 164, 30 
 
 Am. & Eng. C. C. 511, 24 N. E. 
 
 274), 46, 75, 132, 309. 
 Jennings v. Van Schaick (108 N. Y. 
 
 530, IS N. E. 424), 149, 174. 
 Jernee v. Freeholders of Monmouth 
 
 County (52 N. J. L. 553, 21 Atl. 295, 
 
 II L. R. A. 416), 255. 
 Jersey City v. Kiernan (50 N. J. L. 
 
 246, 13 Atl. 170), 296. 
 
 Jewett v. Keene (62 N. H. 701), 249. 
 
 V. New Haven (38 Conn. 369, 
 
 9 Am. Rep. 382), 46, 48. 
 
 Jewhurst v. Syracuse (108 N. Y. 303, 
 
 15 N. E. 409), 157, 175, 191. 
 Jobs V. Minneapolis (22 Minn. 159), 
 
 271. 
 Johnson v. Glens Falls (i6N. Y.Supp. 
 
 585), 198. 
 v. Haverhill (35 N. H. 74), 
 
 249- 
 V. Hudson River R. Co. (20 
 
 N. Y. 65, 75 Am. Dec. 
 
 375). 434. 459. 460,464. 
 V. Irasburgh (47 Vt. 28, 19 
 
 Am. Rep. iii), 439. 
 v. Lindsay (65 L. T. 97 H. 
 
 L-). 333- 
 
 v. Lowell (94 Mass. 572), 200. 
 
 V. Strasburg (47 Vt. 28), 241. 
 
 Johnston v. Charleston (3 S. C. 232, 
 
 16 Am. Rep. 721), 189. 
 
 V. District of Columbia (118 
 
 U. S. 19), 267. 
 V. Philadelphia (139 Pa. 646, 
 21 Atl. 316), 153. 
 Joliet V. Conway (119 111. 489, 10 N. 
 E. 223), 493, 528. 
 V. Harwood (86 111. no, 39 Am. 
 
 Rep. 17), 322, 326. 
 V. Verley (39 111. 58, 85 Am. 
 Dec. 342), 60, 190, 226, 
 285, 390. 
 V. Walker (7 III. Rep. 267), 
 
 356. 
 V. Weston (123 111. 641, 12 W. 
 750), 362. 
 Jolly V. Hawesville (11 Ky. 477, 12 S. 
 
 W. 313), 41. 
 Jones v. Albany (62 Hun 353, 17 N. 
 Y. Supp. 332), 263. 
 V. Andover (92 Mass. [10 Allen] 
 
 18), 440. 
 V. Bird (5 B. & A. 837), 291. 
 V. Boston (io4Mass. 75, 6 Am. 
 Rep. 194), 193, 194. 
 
.Re/e' ences *1 
 are to pages. \ 
 
 TABLE OF CASES. 
 
 xli 
 
 [ones V. Keith (37 Tex. 399, 14 Am. 
 
 Rep. 382), 211. 
 V. Liverpool (L. R. 14 Q. B. D. 
 
 890), 327. 
 V. New Haven (34 Conn. l), 
 
 62, 83, 105, 193, 310, 367, 
 
 369- 
 V. New York Central, etc. R. 
 Co. (28 Hun 364, affi'd 92 
 N. Y. 628), 465. 
 V. Portland (44 Alb. L. J. 290, 
 
 50 N. W. 731), 506. 
 
 V. Railroad Co. (N. Y.) (40 
 
 Hun 349), 522. 
 
 fordan v. Hannibal (87 Mo. 673, 13 
 
 Am. & Eng. C. C. 466), 217, 221, 226. 
 
 Joyce V. Worcester (140 Mass. 245, 4 
 
 N. E. 565), 427. 
 Judd V. Claremont (23 Atl. Rep. 426), 
 
 441, 480. 
 Judge V. Meriden (38 Conn. 90), 295. 
 Jung V. Stevens Point (Wis.) (43 N. 
 W. Rep. 513), 433- 
 
 Kankakee, etc. R. Co. v. Horan (131 
 
 111. 288, 23 N. E. 621), 217. 
 Kansas City v. Birmingham (25 Pac. 
 Rep. 569), 103. 
 v. Bradbury (25 Pac. 
 Rep. 889), 185,186, 
 
 475- 
 v. Kiley (87 Mo. 103, 13 
 Am. & Eng. C. C. 
 446), 194. 
 Kaveny v. Troy (108 N. Y. 571, 15 N. 
 
 E. 726), 200, 206. 
 Keane v. Waterford (130 N. Y. 188, 
 29 N. E. 130, 45 Alb. L. J. 156), 
 198, 204. 
 Kearny v. L. B., etc. Ry. Co. (L. R. 
 S Q. B. 411 and L. R. 6 Q. B. 759), 
 446. 
 Keating v. Cincinnati (38 Ohio St. 
 141,43 Am. Rep. 421), 
 281. 
 V. Kansas City (84 Mo. 
 415). 60. 
 Keeley v. Shanley (140 Pa. 213, 21 
 
 Atl. 305), 162, 335. 
 Keith V. Brockton (136 Mass. 119), 
 
 200. 
 Keller v. Corpus Christi (50 Tex. 
 
 614), 45- 
 Kellogg V. Janesville (34 Mmn. 132, 
 24N. W. 359), 103, 187. 
 V. Northampton (70 Mass. 
 65), 147. 
 
 Kelley v. Columbus (41 Ohio St, 263), 
 
 147, 190, 192. 
 Kelly v. Blackstone (147 Mass. 448, 
 18 N. E. 217), 428. 
 v. Fond du Lac (31 Wis. 179), 
 
 310, 432. 
 v. Mayor, etc. (i i N. Y. 432), 
 
 325, 326. 
 v. Milwaukee (18 Wis. 83), 43. 
 v. Norcross (l2i Mass. 508), 
 
 33°- 
 V. South Minn. Ry. Co. (28 
 Minn. 98), 479. 
 Kendall v. Albia (73 la. 241, 34 N, 
 
 W. 833), 500, 509. 
 Kennedy v. Cecil Co. (69 Md. 65, 12 
 Cent. Rep. 862), 160. 
 v. Cumberland (65 Md. 514, 
 7 Cent. Rep. 407), 103, 
 136. 
 V. Des Moines (50 N. W. 
 
 Rep. 880), 263. 
 v. Le Van (23 Minn. 513), 
 
 135- 
 v. New York (73 N. Y. 365, 
 29 Am. Rep. 169), 71, 
 73. 379. 380. 
 V. Rochester, etc. R. Co. 
 (130 N. Y. 654), 506. 
 Kennison v. Beverly (146 Mass. 467, 
 
 16 N. E. 278), 272, 298. 
 Kennow v. Gilmer (131 U. S. 22), 507, 
 
 508. 
 Kent v. Lincoln (32 Vt. 591), 250,477. 
 V. Worthington Local Board (L. 
 R. loQ. B. D. 118), 87,95, 
 
 151. 
 
 Keokuk v. Independent District, etc. 
 (53 la. 352, 36 Am. Rep. 226, 5 N. 
 W. 503), 103, 174. 
 
 Kern v. De Castio, etc. Sugar Refin- 
 ing Co. (125 N. Y. 50), 7. 
 
 Kessel v. Butler (53 N. Y. 612), 530. 
 
 Keyes v. Marcellus (50 Mich. 439, 45 
 Am. Rep. 56, 15 N. W. 542), 49, 
 144, 147, 190, 261. 
 
 Kibele v. Philadelphia (105 Pa. 41), 
 
 3°3- 
 Kidder v. Dunstable (73 Mass. [7 
 Gray] 104), 384, 385, 
 
 390. 
 v. Dunstable {^^ Mass. [il 
 Gray] 342), 478. 
 Kies V. Erie (135 Pa. 144, 19 Atl. 
 
 942), 39, 46. 
 Kiley v. Kansas City (87 Mo. 103, 56 
 Am. Rep. 443), 61, 62, 103. 
 
xlii 
 
 TABLE OF CASES. 
 
 r Re/erencet 
 Vjire to pages. 
 
 Kimball v. Bath (38 Me. 219, 61 Am. 
 D. 243, 79 Am. D. 702), 
 186. 
 V. Boston (83 Mass. 417), 39, 
 
 131- 
 Kincaid v. Hardin County (53 la. 430, 
 36 Am. Rep. 236, 5 N. W. 589), 
 123, 307. 
 King V. The Inhab. of Devon (14 East 
 477), 223. 
 V. Inhab. of Ecclesfield (i B. & 
 
 Aid. 348), 223. 
 V. Oshkosh (75 Wis. 517, 44 N. 
 
 W. 745), 151, 186. 
 V. Oxfordshire (i B. & Ad. 289, 
 ; 300), 210. 
 
 V. Police Jury (12 La. Ann. 858), 
 
 127. 
 V. Russell (6 East 427), 152. 
 V. Thompson (87 Pa. 365, 30 
 
 Am. Rep. 364), 153, 423. 
 V. West Riding of York (7 East. 
 588, 2 W. Black 685), 117, 
 223. 
 Kingsbury v. Dedham (95 Mass. 186, 
 
 90 Am. Dec. 191), 161. 
 Kingston v. Dubois (102 N. Y. 219), 
 150. 
 V. Gibbons (Pa.) (6 Atl. 
 Rep. 115, 9 East. 781), 
 
 427. 453- 
 Kinney v. Tekamah (Neb.) (46 N. W. 
 Rep. 835), 190. 
 V. Troy (108 N.Y. 571, 15 N. 
 E. 728), 200, 201. 
 Kirby v. Sprague (80 Mass. 249), 208. 
 Kirst V. M., L. etc. R. Co. (46 Wis. 
 
 489), 446, 447- 
 Kistner v. Indianapolis (100 Ind. 210), 
 
 42, 102, 377. 
 Klatt V. Milwaukee (53 Wis. 196, 40 
 Am. Rep. 759), 147, ii;5, 193,362. 
 Klein V. Dallas (8 S. W. Rep. 91), 353. 
 Knapp V. Sioux City, etc. R. Co. (65 
 la. 91, 54 Am. Rep. i, 21 N. W. 
 198). 370,391- 
 Knight V. Philadelphia (15 W. N. C. 
 
 307), 46. 
 Knightstown v. Musgrove (116 Ind. 
 
 121, 9 Am. St. Rep. 827), 102. 
 Knowles V. Crampton (55 Conn. 344, 
 
 II Atl. 593). 469- 
 Knowlton v. Pittsfield (11 N. H. 535), 
 249. 
 V. Pittsfield (62 N. H. 535) 
 190. 
 Knox V. Wheelock (56 Vt. 191), 250. 
 
 Knox County v. Montgomery (109 
 
 Ind. 69, 9 N. E. 590), 123. 
 Knoxvilie v. Bell (Tenn.) (12 Lea 
 
 157), 104, 357, 366. 
 Knupfle V. Knickerbocker Ice Co. 
 
 (84 N. Y. 488), 212. 
 Kobs V. Minneapolis (22 Minn. 159) 
 
 316. 
 Koenig v. Arcadia (75 Wis. 62, 43 N, 
 
 W. 734), 231, 233. 
 Koester v. Ottumwa (34 la. 41), igo. 
 Kokomo V. Mahan (100 Ind. 242), 
 
 276. 
 Kosmak v. New York (i 17 N. Y. 361, 
 
 22 N. E. 1025), 301. 
 Kowalka v. St. Joseph (73 Mich. 
 
 322, 41 N. W. 416), 260. 
 Kranz v. Baltimore City (64 Md. 491, 
 
 14 Am. & Eng. C. C. 432, 2 Atl, 
 
 908), 214, 275, 295. 
 Krause v. Davies County (44 la. 141), 
 
 123. 
 Kuebler v. New York (15 N. Y. 187), 
 
 446, 465- 
 Kugler V. Wiseman (20 Ohio 361), 
 
 519- 
 Kunz V. Troy (104 N. Y. 344, 58 Am. 
 
 Rep. 508, 10 N. E. 442), 177, 193, 
 
 314, 365, 409. 425- 
 Kyle V. Board (94 Ind. 115), 216. 
 
 L. & N. R. Co. V. Yniesta (21 Fla. 
 
 700), 453. 
 La Clef V. Concordia (41 Kas. 323, 13 
 
 Am. St. Rep. 285), 51. 
 Lacon v. Page (48 111. 503), 390. 
 Lafayette v. Allen (81 Ind. 166), 46, 
 30^. 
 V. Larson (73 Ind. 367), 134, 
 V. Timberlake (88 Ind. 330), 
 
 61, 63, 166. 
 V. Weaver (92 Ind. 477), 
 186. 
 Lake v. Milliken (62 Me. 240, 16 Am. 
 
 Rep. 456), 160, 383. 
 Lambert v. Pembroke (N. H.) (23 ' 
 
 Atl. Rep. 81), 174. 
 Lamley v. East Retford (55 J. P. 133), 
 
 94- 
 Lancaster Canal Company v. Pama- 
 
 by (11 A. & E. 230), 7, 292. 
 Landolt v. City of Norwich (37 Conn. 
 
 615), 195, 202. 
 Lane v. Atlantic Works (iii Mass. 
 136), 386. 
 V. Cotton (I Ld. Raym. 646), 
 290. 
 
References "j 
 '■re to pages. \ 
 
 TABLE OF CASES. 
 
 xliii 
 
 -ane v. Woodbury (58 la. 462, 12 N. 
 
 W. 478), 59, 307. 
 -angan v. Atchison (35 Kas. 318, 57 
 
 Am. Rep. 165), 103, 128, 193. 
 !.angdon v. Chartiers Tp. (131 Pa. 
 
 77. 18 Atl. 930'), 173. 
 -angford v. United States (loi U. S. 
 
 341), 31- 
 .anglois v. Cohoes (58 Hun 226, 34 
 
 N. Y. St. Rep. 288), 178, 220, 226, 
 
 231, 340. 
 .ansing v. Toolan (37 Mich. 152), 
 
 190, 277. 
 -aramie v. Albany (92 U. S. 307), 33, 
 
 85, 118. 
 ;.,arkin v. O'Neill (119 N. Y. 221, 23 
 
 N.E. 563),7. 
 
 V. Saginaw County (i i Mich. 
 
 88, 82 Am. Dec. 63), 106. 
 
 .armon v. Crown Point Iron Co. 
 
 (loi N. Y. 391, 54 Am. 
 
 Rep. 718, 4 N. E. 752), 
 
 13- 
 V. Dist. of Col. (s Cent. Rep. 
 447). 102. 
 .arson v. Grand Forks (3 Dak. 307), 
 
 102, 194, 495. 
 .a Salle v. Porterfield (111.) (27 N. E. 
 
 Rep. 937), 187, 234, 362, 366. 
 .avery v. Hannigan (N. Y.) (20 J. & 
 
 S. 463), 152. 
 -awrence v, Fairhaven (71 Mass. [5 
 Gray] 116), 83, 283, 
 286. 
 V. Great Northern R. Co. 
 
 (16 Q. B. 643), 212. 
 V. Inhabitants (71 Mass. 
 no), 216. 
 -ax V. Darlington (L. R. 5 Ex. D. 
 
 28). n- 
 
 .eader v, Moxon (3 Wils. 461), 291. 
 ,eary v. Woodruff (4 Hun [N. Y.] 
 99, affi'd 76 N. Y. 617), 73. 
 .ee V. Barkhampton (46 Conn. 213), 
 252. 
 County V. Yarbrough (85 Ala. 
 
 590, 5 So. 341), 126, 231. 
 V. Minneapolis (22 Minn. 13), 
 
 280. 
 V. Troy City Gas Light Co. (98 
 
 N. Y. IIS), 466. 
 V. Village of Sandy Hill (40 N. Y. 
 442), 48, 66, 285, 340. 
 eeds V. Metropolitan Gas Light Co. 
 (90 N. Y. 26), 498. 
 eggett V. Western, etc. R. Co. (21 
 Atl. Rep. 996), 453. 
 
 Lehigh Co. v. Hoffort (116 Pa. 119, 
 
 2 Am. St. Rep. 591, 9 Atl. 177), 60, 
 
 222, 234. 
 Lehn v. San Francisco (66 Gal. 76), 
 
 273- 
 Lemon v. Newton (134 Mass. 476), 
 
 286, 315, 338, 339. 
 Leonard v. Bath (61 N. H. 67), 249. 
 V. Decker (22 Fed. Rep. 
 
 741). 73- 
 V. N. Y. etc. Tel. Co. (41 N. 
 Y. 544), 394. 
 Leslie V. Lewiston (62 Me. 468), 246, 
 
 412, 419. 
 Levy Court v. Coroner (2 Wall. 501), 
 
 n8. 
 Levy V. New York (i Sandf. 465), 43. 
 V. Salt Lake City (3 Utah 63), 
 104. 
 Lewis V. Atlanta iJ^ Ga. 756), 163, 
 
 19', 525- 
 V. Raleigh (77 N. C. 229), 53. 
 V. State (96 N.Y. 71), 30. 
 Lilly V New York Central, etc. R. Co. 
 (107 N. Y. 566, 14 N. E. 
 
 503). 373- 
 V. Woodstock (59 Conn. 219, 22 
 Atl. 40), 252. 
 Lincoln v. Boston (148 Mass. 578, 26 
 N. E. 329, 3 L. R. A. 
 257), 62, 166, 283. 
 V. Smith (29 Neb. 228, 10 L. 
 
 R. A. 735), 104, 362. 
 V. Staley (Neb.) (48 N. W. 
 
 Rep. 887), 186, 536. 
 V. Walker (18 Neb. 244, 20 
 N. W. 113), 104, 187, 
 
 453- 
 V. Woodward (19 Neb. 259, 
 27 N. W. no), 187, 362. 
 Lindholm v. St. Paul (19 Minn. 245), 
 
 103, 136. 
 Lindley v. Polk Co. (la.) (50 N. W. 
 
 Rep. 975), 51. 
 Lindrall v. Woods (C. C. D. Minn.) 
 
 •44 Fed. Rep. 855), 373. 
 Lindsey v. Danville (45 Vt. 72, 46 Vt. 
 
 144), 157, 522. 
 Little v. Hackett (116 U.S. 366), 405, 
 407. 
 V. Madison (42 Wis. 643, 24 
 Am. Rep. 216, 49 Wis. 
 605), 65,66, 165, 381. 
 V. Port Talbot Co. (The Apol- 
 lo) (65 L. T. 590), 328. 
 Littlefield v. Norwich (40 Conn. 408), 
 189. 
 
xliv 
 
 TABLE OF CASES. 
 
 [References 
 are to pages.* 
 
 Livermore v. Freeholders of Camden 
 (29 N. J. L. 245, 31 N. J. L. 507), 
 106, 254, 25s, 256, 297. 
 Livezey v. Philadelphia (64 Pa. 106, 3 
 
 Am. Rep. 578), 217. 
 
 Lloyd V. New York (5 N. Y. 369, 55 
 
 Am. Dec. 347), 27, 39, loi, 128, 
 
 215,295. 
 
 Loar V. Hesing (28 111. App. 584), 234. 
 
 Loeb V. Attica (82 Ind. 175, 42 Am. 
 
 Rep. 494), 440. 
 Loeser v. Humphrey (41 Ohio St. 
 
 378, 52 Am. Rep. 86), 518. 
 Loewer v. Sedalia {j-j Mo. 431), 220, 
 
 231. 
 Loftus V. Ferry Co. (84 N. Y. 306), 
 
 159, 188. 
 Logansport v. Dick (70 Ind. 65, 36 
 Am. Rep. 166), 224, 
 326. 
 V. Justice (74 Ind. 378, 39 
 Am. Rep. 79), 357. 
 Lombar v. East Tawas (86 IVlich. 14, 
 
 48 N. W. 947), 174, 185, 482. 
 Lombard v. Chicago (4 Biss. 460), 
 
 189. 
 London v. Goldsmith (16 Can. Sup. 
 
 Ct. 233), 185. 
 Long V. Boone Co. (33 la. 181), 338. 
 Longworthy v. Green (Mich.) (50 N. 
 
 W. Rep. 130), 478. 
 Loomis V. Board of Auditors (75 N. 
 
 Y. 316), 125. 
 Lorillard v. Monroe Co. (11 N. Y. 
 
 392, 62 Am. Dec. 120), 313. 
 Loughran v. Des Moines (72 la. 382, 
 
 34 N. W. 172), 311. 
 Louisiana v. New Orleans (109 U. 
 S. 285), 41. 
 V. Wood (102 U. S. 294), 
 343- 
 Louisville, etc. R. Co. v. Black (89 
 Ala. 13, 45 Am. & 
 Eng. R. Cas. 38), 
 14. 
 Co. V. Thompson (107 
 
 Ind. 442), 217. 
 R. Co. V. Stommel 
 (126 Ind. 35, 25 N. 
 
 E. 863), 457. 
 Loundenback v. Collins 14 Ohio St. 
 
 251), 519. 
 Low V. Grand Trunk Railroad Co. (72 
 Me. 313), 71. 
 V. Windham (75 Me. 113), 245. 
 Lowell V. Proprietors (104 Mass. 18), 
 335- 
 
 Lowell V. Watertown (58 Mich. 568, 
 
 25 N. W. 517), 427. 
 Lower Macungie Tp. v. Merkhoffer 
 
 (7 Pa. 276), 122. 
 Lowery v. Manhattan Ry. Co. (99 N. 
 
 Y, 158), 381. 
 Luby V. Railroad Co. (17 N. Y. 131), 
 
 486. 
 Lucas V. Taunton & New Bedford 
 Railroad (72 Mass. [6 Gray] 64, 72), 
 401. 
 Luck V. Ripon (52 Wis. 196), 174. 
 Luke V. Mining Co. (71 Mich. 364), 
 
 432, 472. . 
 Luther v. Worcester (97 Mass. 269), 
 
 204. 
 Lyman v. Boston & Maine Railroad 
 (N. H.)(ii L.R, A. 364, 
 20 Atl. Rep. 976), 458. 
 V. Hampshire (140 Mass. 31 r; 
 3 N. E. 211), 231, 365, 
 427, 458. 
 V. Williston (62 Vt. 269, 20 
 Atl. 304), 230. 
 Lyme Regis v. Henly (3 Barn. & Ad. 
 
 n), 25, 288. 
 
 Lynch v. Knight (9 H. L. Cas. 577), 
 508. 
 V. Nurdin (i Ad. & El. [N. S.] 
 29, 5 Jur. 797), 382, 386. 
 V. New York (76 N. Y. 60, 47 
 Hun 524, 32 Am. Rep, 
 271), 60, 279, 2S0, 435. 
 V. Smith (104 Mass. 53, 6 Am. 
 Rep. 188), 412, 419. 
 Lyon V. Cambridge (136 Mass. 419), 
 
 163, 243. 
 Lyons v. Erie Railway Co. (57 N. Y. 
 489), 518, 520. 
 V. Rosenthal (N. Y.) (11 Hun 
 46), 446- 
 
 McAdoo V. Richmond, etc. Railroad 
 Co. (105 N. C. 140, n S. E. 316), 
 10. 
 McAllister v. Albany (18 Or. 426, 23 
 
 Pac. 845), 149, 155, 164, 
 McArtbur v. Green Bay, etc. Co. (34 
 Wis. 139), 441. 
 V. Saginaw ( 58 Mich. 357, 
 25 N. W. 313, 55 Am. 
 Rep. 687), 49, 61, 106, 
 148, 261. 
 McAvoy V. Knoxville (85 Tenn. I9)^ 
 
 44°- 
 V. New York (54 How. Pr. 
 
 245). 75. 154. 
 
ferences "| 
 .to jtages.\ 
 
 TABLE OF CASES. 
 
 xlv 
 
 :Cabe V. Cambridge (134 Mass. 
 
 \H), 243- 
 
 ;Caft'erty v. Spuyten Duyvil, etc. 
 
 :o. (61 N. Y. 178), 325. 
 
 :Caffrey v. Delaware, etc. Canal Co. 
 
 ;4i N. Y. St. Rep. 221), 407. 
 
 ;Calla v. Multonah County (3 Ore. 
 
 1.24), 123. 
 
 ;Carthy v. Boston (135 Mass. 197), 
 
 338. 
 V. Portland (67 Me. 167, 
 
 24 Am. Rep. 23), 177, 
 
 245, 246. 
 V. Syracuse (46 N. 194), 
 
 295, 303, 309, 368. 
 ;Caughey v. Providence (12 R. I. 
 M9). 282. 
 
 :Clain v. Garden Grove (la.) (48 N. 
 W. Rep. 1031, 12 L. R. A. 482), 220. 
 ;Cleneghan v. Omaha, etc. R. Co. 
 [25 Neb. 523), 216. 
 ;Clure v. Red Wing (28 Minn. 
 186), 268, 276. 
 
 :Cool V. Grand Rapids (58 Mich. 
 
 ^i, SS Am. Rep. 655), 153. 
 
 :Connell v. Dewey (5 Neb. 385), 88, 
 
 104, 128. 
 
 V. Osage City (80 la. 293, 
 
 45 N. W. 550), 187, 
 
 367. 487. 
 :Cormack v. Amsterdam (18 N. Y. 
 Supp. 272), 475. 
 V. Baltimore (45 Md. 
 
 524). 136. 
 
 :Cormick v. Pennsylvania, etc. R. 
 Co. (49 N. Y. 303), 
 526. 
 V. Washington (112 Pa. 
 St. 185, 13 Am. & 
 Eng. C. C. 464, 4 
 Atl. 164), 218. 
 
 ;Coull V. Manchester (85 Va. 579, 
 
 2 L. R. A. 691, 8 S. E. 379), 65, 
 
 104, 164, 
 
 :Cune v. Missoula (25 Pac. Rep. 
 
 4-42), 103. 
 
 :Cutcheon V. Homer (43 Mich. 483), 
 
 285. 
 
 ;Cracken v. Markesan (76 Wis. 
 
 1-99. 45 N. W. 323), 435. 
 
 iCready v. Guardians, etc. (Pa.) (9 
 
 S. & R. 94), 343- 
 
 :Dade v. Chester City (117 Pa. 414, 
 
 2 Am. St. Rep. 681, 12 Atl. 421), 
 
 4.2, 61, 62. 
 
 :Dermott v. Boston (133 Mass. 
 
 349). 330- 
 
 McDermott v. Kingston (N. Y.) (19 
 
 Hun 198), 358. 
 McDonald v. Ashland (Wis.) (47 N. 
 W. Rep. 434), 204, 
 226, 262, 536. 
 V. Chicago, etc. R. Co. (26 
 
 la. 124), 502. 
 v. Mass. General Hospital 
 
 (120 Mass. 432), 44. 
 V. Newark (42 N. J. Eq. 
 136, 5 Cent. Rep. 
 646), 67, 186. 
 V. Red Wing (13 Minn. 38), 
 
 45. 
 V. Snelling (96 Mass [14 
 AUenJ 290), 384, 385. 
 V. Stcte (27 N. E. Rep. 
 
 358), 228. 
 V. Troy (36 N. Y. St. Rep. 
 704), 263. 
 McDonough v. Virginia City (6 Nev. 
 
 90), 104, 285. 
 McDougall v. Boston (134 Mass. 149), 
 
 244. 
 McDougal v. Salem (no Mass. 21), 
 , 235,255. 
 McElvoy v. Albany (65 Ga. 387, 62 Id. 
 
 290). 39. 40. 
 McKadden v. Santa Ana, etc. R. Co. 
 
 (II L. R. A. 252), 524. 
 McGaffigan v. Boston (149 Mass. 289, 
 
 21 N. E. 371), 155, 362, 370. 
 McGarey v. Lafayette (4 La. Ann. 440), 
 
 26. 
 McGarry v. Loomis C63 N. Y. 108, 20 
 
 Am. Rep. 510), 177, 179, 410, 411. 
 McGinty v. Keokuk (66 la. 725), 
 427. 
 V. New York, etc. (5 Duer 
 
 674). 387- 
 McGovern v. N. Y. C, etc. R. Co. 
 
 (67 N. Y. 418), 410. 
 McGrath v. Bloomer (73 Wis. 29), 
 
 190. 
 McGuiness v. New York (52 How. 
 
 Pr. 450), 73. 
 McGuire v. Spence (91 N. Y. 303), 
 
 177. 179. 189, 410. 
 Mclntyre v Giblin (2 Utah 384), 508. 
 V. N. Y. C, etc. R. Co. (37 
 N. Y. 287), 499, 530, 
 
 536. 
 McKay v. Buffalo (N. Y.) (9 Hun 401, 
 
 affi'd 74 N. Y. 619), 41, 65. 
 McKean v. Salem (148 Mass. 109), 
 
 200. 
 McKee v. Bidwell (74 Pa. 218), 482. 
 
xlvi 
 
 TABLE OF CASES. 
 
 CRe/erencei 
 are to pages. 
 
 McKeever V. Market St. R. Co. (59 
 
 Cal. 294), 471. 
 McKellar v. Detroit (57 Mich. 158, 23 
 N. W. 621), 49, 106, 
 207, 260. 
 V. Monitor Tp. (78 Mich. 
 485, 58 Am. Rep. 357, 
 44 N. W. 412), 233, 
 
 234- 
 McKenna v. St. Louis (6 Mo. App. 
 
 320), 46. 
 McKenziev. Chovin (i McMuU. 222), 
 120. 
 V. Northfield (30 Minn. 
 456), 427. 
 McKinnon v. Penson (8 Exch. 319), 
 
 87, 90, 93. 
 McLain v. Garden Grove (la.) (12 L. 
 
 R. A. 482), 391. 
 McLaughlin v, Corry {77 Pa. 109, 18 
 
 Am. Rep. 432), 204. 
 McLaury v. McGregor (54 la. 717), 
 
 435- 
 McLoughlin v. Philadelphia (21 Atl. 
 
 Rep. 754), 177- 
 McMahon v. Field (44 L. T. [N. S.] 
 Ch. Uiv. 175), 395- 
 V. Second Ave. R. Co. (75 
 N. Y. 231), 335. 
 McNally v. Cohoes (127 N. Y. 350, 
 27 N. E. 1043), loi, 171, 207, 
 356. 
 McPherson v. Dist. of Col. (18 Wash. 
 
 L. R. 270), 356, 362. 
 McRickard v. Flint (122 N. Y. 222, 
 
 21 N. E. 153), 486. 
 McSherry v. Canandaigua (129 N. Y. 
 612, 35 N. Y. St. Rep. 432, 12 N. 
 Y. Supp. 751), 171. 
 McVeety v. St. Paul, etc. Railroad Co. 
 (45 Minn. 268, u L. R. A. 174, 47 
 N. W. 809), 13. 
 Macauley v. New York (67 N. Y. 602), 
 
 380. 
 Mackey v. Baltimore, etc. R. Co. (D. 
 C.) (18 Wash. L. Rep. 
 767), 453- 
 v. Vicksburg (64 Miss. TJJ), 
 190, 192. 
 Macomber v. Nichols (34 Mich. 212), 
 161. 
 V. Taunton (100 Mass. 
 255), 150, 163. 
 Macon County v. People (i2i 111. 
 
 616), 211, 230. 
 Macy V. Indianapolis (17 Ind. 267), 
 .276. 
 
 Maddox v. Randolph Co. (65 Ga, 
 
 2 1 6), 263. 
 Madison v. Baker (103 Ind. 41, 2 N, 
 E. 236), 362. 
 County v. Brown (89 Ind, 
 48), 229. 
 Magee v. West End, etc. Ry. Co, 
 (151 Mass. 240, 23 N. E. 1102), 
 
 442. 
 
 Maguire v. Middlesex R.R. Co. (115 
 Mass. 239), 358. 
 
 Mahogany v. Ward (16 R. I. 479), 
 386, 393. 
 
 Mairs v. Manhattan R. E. Associa- 
 tion (89 N. Y. 507), 527, 528. 
 
 Mallory v. Griffey (85 Pa. 275), 175. 
 
 Malloy v. Walker Tp. (77 Mich. 448, 
 6 L. R. A. 695, 43 N. W. 1012), 
 183, 190. 
 
 Manchester v. Ericsson (105 U. S, 
 
 347). 136, 159- 
 
 V. Hartford (30 Conn. 
 
 118), 130, 252,357. 
 
 etc. R. Co. V. Worksop 
 
 Local Board (23 Bev. 
 
 198), 275. 
 
 Manderschid v. Dubuque (29 la. 73, 
 
 4 Am. Rep. 196), 160, 380. 
 Mangam v. Brooklyn R. Co. (38 N. 
 
 Y. 455), 410. 
 Manhattan Trans. Co. v. Mayor (37 
 
 Fed. Rep. 160), 71. 
 Manley v. St. Helen's Canal, etc. Co. 
 
 (2 H. & N. 840), 235. 
 Mannersv. Haverhill (135 Mass. 651), 
 
 298. 
 
 Manning v. Lowell (130 Mass. 21), 
 
 272. 
 
 V. Woodstock (59 Conn. 
 
 224, 22 Atl. 42), 252. 
 
 Mansfield v. Moore {124 111. 133, 16 
 
 N. E. 246, 13 West. 351), 135, 175. 
 
 353- 
 Manuel v. Cumberland (98 N. C. 9), 
 
 53- 
 Marble v. Worcester (70 Mass. [4 
 
 Gray] 395), 385, 388. 
 March v. Portsmouth, etc. R. Co. (19 
 
 N. H. 371), 212. 
 Margarity V. Wilmington (5 Del. 530), 
 
 102, 280, 295. 
 Marion County v. Riggs (24 Kas. 255), 
 
 128. 
 Marion v. Skillman (127 Ind, 130), 
 
 425. 435- 
 Mark v. Hudson River Bridge Co. 
 (103 N. Y. 28, 8 N. E. 243), 10. 
 
ferences T 
 to fiagea.S 
 
 TABLE OF CASES. 
 
 xlvii 
 
 xket V. St. Louis {56 Mo. 189), 
 
 [87, 366. 
 
 irkle V. Berwick (Pa.) (21 Atl. Rep. 
 
 '94). 295. 
 
 irquette v. Cleary (37 Mich. 296), 
 
 irs V. Delaware, etc. Canal Co. (54 
 
 Hun 625), 8. 
 
 irseilles v. Rowland (124 111. 547, 
 
 [6 N. E. 883), 226, 233. 
 
 irtir. V. Town of Algona (40 la. 
 
 390), 380. 
 V. Brooklyn (N. Y.) (i Hill 
 
 545). 328, 329. 
 V. Peitit (117 N. Y. 118, 5 L. 
 
 R. A. 794, 22 N. E. 
 
 566), 189. 
 irtinsville v. Shirely (84 Ind. 546), 
 281. 
 ison V. Ellsworth (32 Me. 271), 
 
 359. 495- 
 
 isterton v. Mt. Vernon (58 N. Y. 
 
 391). 295. 335. 499. 530. 
 athews v. Cedar Rapids (20 Am. 
 St. Rep. 436), 471. 
 47S. 
 V. Kelsey (58 Me. 56), 180. 
 V. London Street Tr. Co. 
 (58 L. T. 12), 407. 
 atter of N. Y. Protestant School 
 (31 N. Y. 574). 168. 
 atthews v. Baraboo (39 Wis. 677), 
 
 147. 193- 
 
 attimore v. Erie (Pa.) (22 Atl. Rep. 
 
 817, 26 W. N. C. 106), 153, 362, 
 
 402. 
 
 auch Chunk v. Kline (100 Pa. 119), 
 
 200, 204. 
 
 aultby V. Leavenworth (28 Kas. 
 
 745). 145. 433. 434. , , ^ , ^ 
 
 aund V. Monmouthshire Canal Co. 
 
 (4 M. & G. 452), 21. 
 
 aus V. Springfield (loi Mo. 613, 14 
 
 S. W. 630, 20 Am. St. Rep. 634), 
 
 103, 132, 366. 
 
 aximilian v. New York (62 N. Y. 
 
 160), 34. 43. 54. 169. 319. ^^ „^ 
 
 axson V. Railroad Co. (112 N. Y.), 
 
 559, 20 N. E. 544). 522. 
 
 ay V. Boston (150 Mass. 517. 23 N. 
 
 E. 220), 243. 
 
 ayo V. Boston & Maine Railroad 
 
 (io4Mass. i37),457, 439- 
 V. Springfield (136 Mass, 10), 
 
 280. 
 ayor v. Bailey (N. Y.) (2 Den. 433), 
 48. 
 
 Mayor v. Cunliff (N. Y.) (2 Comst. 
 
 165), 48- 
 V. Furze (N. Y.) (3 Hill 612), 
 
 162. 
 V. Klein (89 Ala. 461, 7 So. 
 
 386). 139. 
 V. Lewis (Ala.) (9 So. Rep. 
 
 243). 505- ' 
 V. McCary (84 Ala. 469, 4 So. 
 
 630), 155,442. 
 V. Marriott (9 Md. 160), 167. 
 of Lynn v. Turner (Cowper 86), 
 
 26, in. 
 V. 0'Donnell(53Md. llo),i54. 
 of New York v. Sheffield (4 
 
 Wall. [U. S.] 189), 84. 
 V. Waldner (49 Ga. 316), 324. 
 V. Wilson (82 Ga. 207, 9 S. E. 
 17), 302, 355- 
 Mead v. New Haven (40 Conn. 72, 16 
 
 Am. Rep. 14), 50. 
 Meares v. Wilmington (N. C.) (9 
 
 Ired. 73), 104, 280. 
 Mechanicsburg , V. Meredith (54 III. 
 
 84), 226. 
 Medina v. Perkins (48 Mich. 67), 234. 
 Meeks v. Southern Pac. R. Co. (52 
 
 Cal. 602, 56 Cal. 513), 412,419. 
 Meigs V. Buffalo (N. Y.) (23 W. D. 
 
 497). 522. 
 Melendy v. Bradford (56 Vt. 148), 250. 
 Memphis V. Kimbrough (Ky.) (i2 
 Heisk. 133), 71. 
 V. Lasser (Tenn.) (9 Humph. 
 
 757), 104. 
 Menard v. Railroad Co. (150 Mass. 
 
 386, 23 N. E. 214), 484. 
 Mendel v. Wheeling (28 W. Va. 233, 
 
 57 Am. Rep. 665), 46, 76, 302. 
 Menderschid v. Dubuque (29 la. 87), 
 
 134. 
 Mercer v. Corbin (117 Ind. 450, 10 
 Am. St. Rep. 76, 20 N. E. 132J, 187. 
 Merkle v. Bennington (58 Mich. 157, 
 55 Am. Rep. 666, 24 N. 
 W. 776), 160. 
 V. Berwick (Pa.) (21 Atl. Rep. 
 looi), 275. 
 Merrifield v. Worcester (no Mass. 
 
 216), 51, 274, 286, 295. 
 Merrill v. Claremont (58 N. H. 468), 
 382. 
 V. Hampden (26 Me. 234), 162, 
 
 246. 
 V. North Yarmouth (78 Me. 
 200, 57 Am. Rep. 794, 3 
 Atl. S7S), 428. 
 
xlviii 
 
 TABLE OF CASES. 
 
 r Refer 
 \_are to . 
 
 Merritt v. Earle (29 N. Y. 1 1 5), 440. 
 
 Mersey Docks v. Gibbs (L. R. 1 1 H. 
 
 L. Cas. 686, i H. 
 
 L. 93). 7. 72. 96, 
 119, 140, 289, 292, 
 315, 322, 360. 
 V. Llaneilian (L. R. 14 
 Q. B. D. 770), 294. 
 Merz V. Brooklyn (128 N. Y. 617, 33 
 
 N. Y. St. Rep. 577). 264. 
 Metcalf V. Hetherington (11 Exch. 
 
 257). 119- 
 Metropolitan Railroad v. District of 
 
 Columbia (132 U. S. i), 100. 
 Meyer v. Teutopolis (131 111. 552), 
 
 80. 
 Meyers v. Kansas City (18 S. W. 
 
 Rep. 914), 453. 
 Michigan City v. Boeckling (122 Ind. 
 
 39, 23N. E. 518), 151.353- 
 Miles V. Worcester (28 N. E. Rep. 
 
 676, 13 L. R. A. 841), 285. 
 Mill V. Hawker (L. R. 9 Ex. 309, 10 
 
 Ex. 92), 56. 
 
 Miller V. New York (109 U. S. 385), 
 
 212. 
 
 V.Ocean Steamship Co. (118 
 
 N. Y. 199, 23 N. E. 462), 8. 
 
 Mills V. Brooklyn (32 N. Y. 489), 267, 
 
 269, 277. 
 Milne v. Walker (59 la. 186), 473. 
 Milwaukee Railroad Co. v. Arms (91 
 U. S. 489), 9, 10. 
 etc. R. Co. V. Hunter 
 
 (11 Wis. 160), 459. 
 etc. R. Co. V. Kellogg (94 
 U. S. 469), 394, 395. 
 Minick v. Troy (83 N. Y. 514), 154, 
 
 263. 
 Missouri Pacific Ry. Co. v. Foreman 
 
 (73 Tex. 311, n S. W. 326), 457. 
 Missouri Pacitic Railway v. Hennes- 
 sey (75 Tex. 155), 482. 
 Mitchell V. Clinton (99 Mo. 153, 12 S. 
 W. 817), 351, 453. 
 V. Pittsburg (33 Mo. App. 
 
 555). 185- 
 V. Rockland (52 Me. 118), 
 44, 316. 
 Moberly v. Radway Co. (98 Mo, 183, 
 
 iiS.W. 569),453. 
 Modoc, The (26 Fed. Rep. 718), 213. 
 Moffitt V. Asheville (103 N. C. 237, 14 
 Am. St. Rep. 810, 9 S. E. 695), 52. 
 Monk V. New Utrecht (104 N. Y. 552, 
 n N. E. 268), 125, 138, 141, 159, 
 435. 436. \ 
 
 Monkton v. Atty.-Gen. (2 Rus 
 
 M. 160), 507. 
 Monmouth v. Sullivan (8 111. . 
 
 so), 192. 
 Monongahela Bridge Co. v. Kirk 
 Pa. 112), 212. 
 Bridge Co. v.Pittsbi 
 (114 Pa. 478, 8 
 233), 218. 
 City V. Fischer (iii 
 9, 56 Am. Rep. 
 13 Am. &Eng. ( 
 431, 2 Atl. 87), 
 146, 220. 
 Monroe v. Flynt (80 Ga. 488, 6 S 
 
 173), 126. 
 Montezumas v. Buck (82 Ga. 2 
 
 353- 
 Montezuma v. Wilson (82 Ga. 2of 
 
 Am. St. Rep. 150, 9 S. E. 17), 3 
 Montgomery v. Gilmer (33 Ala. 
 70 Am. Dec. 5 
 
 275- 
 etc. R. Co. v. Mil 
 (Ala.) (9 So. B 
 363), 8, 497. 508. 
 V. Townsend (84 i 
 478,480.780), ) 
 281. 
 V. Wright (72 Ala. l 
 47 Am. Rep. /| 
 75 Ala. 411), J 
 144. 355. 362, 4 
 442. 
 Monticello v. Fox (Ind. App.) (28 
 
 E. Rep. 1025;, 301. 
 Moon V. Ionia (81 Mich. 635, 46 
 
 W. 45), 140, 185, 234. 
 Moore v. Abbott (32 Me. 46), I 
 385. 388. 
 V. Cape Girardeau (103 I 
 470, 15 S. W. 755), 13 
 V. Gadsden (87 N. Y. 84, 
 Am. Rep. 352'), 208. 
 V. Huntington (31 W. Va. 8 
 8 S. E. 512), 104, 263. 
 V. Kenockee Tp. (75 Mi 
 332, 42 N. W. 944), 2 
 
 233- 
 V. Lambeth Water Woi 
 Co. (L. R. 17 Q. B. 
 465. L.J. [Q.B.D.]30 
 
 55. 95- 
 V. Los Angeles (72 Cal. 28, 
 
 Pac. 855), 311. 
 V. Mayor, etc. (73 N. Y. 23 
 
 169. 
 
Terences ~| 
 to pages. J 
 
 TABLE OF CASES. 
 
 xlix 
 
 ore V. Minneapolis (19 Minn. 300), 
 103. 
 V. Platteville (Wis.) (47 N. W. 
 
 Rep. 1055), 182. 
 V. Richmond (85 Va. 538, 8 S. 
 
 E. 387), 104, 477, 362. 
 V. Shreveport (3 La. Ann. 64 5), 
 457. 
 Ireland v. Mitchell Co. (40 la. 394), 
 23. 338. 
 
 rey v. Newfane (N. Y.) (8 Barb. 
 145), 88, 118. 125. 
 rgan v. Hallowell (57 Me. 375), 
 83, 105, 192, 246. 
 V. Morley (i Wash. 464), 71, 
 104. 
 rgan County Com. v. Pritchett 
 85 Ind. 68), 123. 
 
 rrell v. Peck (88 N. Y. 398), 220, 
 32, 486. 
 
 rris V. Council Bluffs (67 la. 343, 
 56 Am. Rep. 343), 280. 
 V.Lynn (119 Mass. 273), 
 
 353- 
 rrison v. Erie R. Co. (56 N. Y. 
 302), 419. 
 V. Lawrence (98 Mass. 219), 
 
 43. 48, 339- 
 V. Shelby County (116 Ind. 
 431, 19 N. E. 316), 
 
 433- 
 rse V. Belfast (jj Me. 44), 246. 
 V. Boston (109 Mass. 446), 204. 
 V. Minneapolis, etc. Ry. Co. (30 
 
 Minn. 465), 478, 482. 
 V. Richmond (41 Vt. 83, 435, 
 98 Am. Dec. 600), 160, 
 250. 
 V. Worcester (139 Mass. 389, 
 2 N. E. 694), 273, 274. 
 rton V. Frankfort (55 Me. 46), 
 
 48. 
 
 33 V. Burlington (60 la. 438, 46 
 
 Lm. Rep. 82, 15 N. W. 267), 163, 
 
 77. 379- 
 
 3try V. Danbury (45 Conn. 550), 
 
 35- 
 
 jlton V. Sanford (51 Me. 127), 
 378, 388, 390, 441. 
 V. Scarborough (71 Me. 267, 
 
 36 Am. Rep. 308), 71. 
 V. Scruton (39 Me. 288), 
 478. 
 ver V. Leicester (9 Mass. 247, 6 
 m. Dec. 63), 26, 27, 82, 107, 249. 
 Carmel v. Howell {^6 111. App. 
 S), S2I- 
 
 D 
 
 Mt. Vernon v. Desonchett (2 Ind. 
 
 586, 54 Am. Dec. 
 
 467), 466. 
 
 V. Lee (36 111. App. 24), 
 
 295. 
 
 Mulcairns v. Janesville (67 Wis. 24, 
 
 29 N. W. 565), 151, 284. 
 Mulholland v. Mayor, etc. (N. Y.) 
 
 (20 N. E. Rep. 856), 320. 
 Mullen V. Rutland (55 Vt. 77), 213, 
 250. 
 V. St. John (57 N. Y. 567), 
 446. 
 Muller V. Newburgh (105 N. Y. 668, 
 
 32 Hun 24), 201, 205. 
 Mulvane v. South Topeka (Kas.) (25 
 
 Pac. Rep.), 160. 
 Munger v. Marshalltown (59 la. 763, 
 13 N. W. 642), 434. 
 V. Waterloo (la.) (49 N. W. 
 Rep. 1028), 475, 487. 
 Murphy v. Brooklyn (98 N. Y. 642, 
 118 N. Y. 575. 23 N. E. 
 887), 14, 192, 235, 302. 
 V. Chicago, etc. R.R. Co. (38 
 
 la- 539). 475- 
 V. Gloucester (105 Mass. 
 
 470), 159- 
 V. Indianapolis (83 Ind. 76), 
 
 427. 
 V. Kelly (76 N. Y. 475), 230. 
 V. Lowell (124 Mass. 564, 
 128 Mass. 396, 35 Am. 
 Rep. 381), SI, 275, 286, 
 295. 317, 326. 
 V. Suburban Rapid Transit 
 Co. (40 N. Y. St. Rep. 
 228, 15 N. Y. Supp. 837), 
 227, 232. 
 Murphysboro v. Reily (36 111. App. 
 
 157), 362. 
 Murray v. Missouri Pac. Ry. Co. (loi 
 
 Mo. 236, 13 S. W. 817), 453. 
 Murtaugh v. St. Louis (44 Mo. 480), 
 
 44- 
 Myers v. Indianapolis, etc. R. Co. 
 
 (113 111. 386, I N.E.899), 424. 
 Mynning v. Detroit, etc. R. Co. (67 
 
 Mich. 677, 35 N. W. 811), 457. 
 
 N. Y. Dry Dock Co. v. Mcintosh (5 
 
 Hill 290), 499. 
 N. Y. etc. R. Co. v. Haring (47 N. J. 
 
 137), 344- 
 Nalley v. Hartford Carpet Co. (51 
 
 Conn. 524), 482. 
 Nash V. Sharpe (19 Hun 366), 530. 
 
1 
 
 TABLE OF CASES. 
 
 CRefe' ences 
 are to pages. 
 
 Nashville V. Brown (Tenn.) (9 Heisk. 
 I), 104. 
 V. Comar (88 Tenn. 415, 12 
 S. W. 1027), 274. 
 Nason V. Boston (96 Mass. 508), 
 
 200. 
 Nanticoke ' Borough v. Warne (106 
 
 Pa. 373). 187. 
 Navasota v. Pearce (46 Tex. 525), 33, 
 
 104. 
 Neally v. Bradford (145 Mass. 561, 
 
 14 N. E. 652), 298. 
 Neanovv v. Uttech (46 Wis. 581), 
 
 440. 
 Nebraska City v. Campbell (2 Blatch. 
 [U. S.J 590), 84, 
 
 !O0, 104, 108, 190, 
 499, 502, 530. 
 
 V. Rathbone (20 Neb. 
 289, 29 N. W. 
 290), 200. 
 Neff V. Wellesley (148 Mass. 487, 20 
 
 N. E. Ill), 57, 283, 425, 435. 
 Nelson v. Canisteo (100 N. Y. 89, 2 
 N.E. 473), 149. 
 V. Godfrey (12 III. 20, 23), 
 
 175- 
 Nemis v. Peoria (41 111. 502), 295. 
 Nesbit V. Garner (75 la. 315, 25 Am. 
 
 & Eng. C. C. 112), 419. 
 Neuert v. Boston (120 Mass. 338), 
 
 308. 
 Nevins v. City of Peoria (41 111. 502), 
 
 369. 
 New Albany v. Ray (29 N. E. Rep. 
 (>\i\, 272. 
 V. McCulloch (127 Ind. 
 500, 26 N.E. 1074), 
 141. 
 New Bedford v. Taunton (91 Mass. 
 
 [9 Allen] 207), 313, 316. 
 New Jersey Express Co. v. Nichols 
 (N. J.) (3 Vr. 166, 4 
 Vr. 430), 502. 
 Steamboat Co. v. Brock- 
 ett (121 U. S. 637), 8. 
 New Orleans v. Louisiana Const. Co. 
 {140 U. S. 654, II Sup. Ct. Rep. 
 968), 72. 
 New York v. Bailey (N. Y.) (2 Denio 
 433). 285, 297. 
 & Brooklyn Bridge (96 N. 
 
 Y.427), 230. 
 V. Furze (3 Hill 612), lor, 
 
 217, 295. 
 V. Pentz (24 Wend. 668), 
 45- 
 
 New York etc. S. M. Co. v. Brook- 
 lyn (71 N. Y. 580), 
 328. 
 
 V. Sheffield (4 Wall [U. S.] 
 189), 136, 151. 
 
 Central R. Co. v. Lock- 
 wood (17 Wall. [U.S.] 
 
 357). lo- 
 Newcomb v. Boston Pro. Dept. (29 
 Am. & Eng. C. C. 
 641), 50. 
 V. Montgomery Co. (79 la. 
 487, 29 Am. & Kng. 
 C. C. 488), 220. 
 Newlin V. Davis (77 Pa. 317), 233, 335. 
 Newman v. Phillipsburg Horse Car 
 R.R. Co. (52 N. J. L. 446, 19 Atl. 
 1107), 413 
 Niblett v. Nashville (Tenn.) (12 
 
 Heisk. 684), 104, 189. 
 Nichols v. Athens (66 Mo. 402), 160. 
 V. Brunswick C3 Cliff. [U. S.] 
 
 81), 379- 
 V. Minneapolis (30 Minn, 430, 
 
 53 Am. Rep. 56), 365. 
 v. St. Paul (44 Minn. 494, 47 
 N. W. 168), 207, 281. 
 Nicholson v. Mounsey (i 5 East. 384), 
 
 290. 
 Nickerson v. Tirrell (127 Mass. 236), 
 
 71, 72. 
 Niles V. Martin (4 Mich. 557), 106. 
 Nims V. Boone Co. (66 la. 272, 68 la. 
 642), 220. 
 V. Troy (59 N. Y. 500), 295. 
 Niven v. Rochester (76 N. Y. 619), 
 
 442. 
 Noble V. Richmond (31 Gratt.271,31 
 Am. Rep. 726), 104, 353. 
 V. St. Albans (56 Vt. 522), 271. ' 
 Noblesville Gas Light Co.' v. Laehr 
 (Ind.) (24 N. E. Rep. 579, 29 Am. 
 & Eng. C. C. 254), 435. 
 Nolan V. King (97 N. Y. 565, 49 Am. 
 
 Rep. 561), 148, 182, 218. 
 
 Noonan v. Albany (79 N. Y. 470, 35 
 
 Am. Rep. 540), 215, 271, 
 
 278, 302. 
 
 V. Stillwater (33 Minn. 198, 
 
 22 N. W. 444), 174, 187. 
 
 Norris v. Litchfield (35 N. H. 271), 
 
 231, 439- 
 Norristown v. Fitzpatrick (94 Pa. 121, 
 
 39 Am. Rep. 771), 39. 
 43. 63, 65. 
 V. Mayor (67 Pa. 356), 62, 
 
 369- 
 
References ~\ 
 are to pages. \ 
 
 TABLE OF CASES. 
 
 li 
 
 Norristown v. Moyer (67 Pa. 355), 153, 
 
 177- 193- 
 North Birmingham R. Co. v. Cakler- 
 wood (89 Ala. 247, 7 So. 
 360), 453. 
 Chicago St. R. Co. v. Louis 
 (III.) (27 N. E. Rep. 451), 
 457- 
 Manheim v. Arnold (119 Pa. 
 380, II Cent. 846, 13 Atl. 
 444), 160. 
 River Bank v. Aymar (N. Y.) 
 
 (3 Hill 262), 358. 
 Staff Ry. Co. v. Dale (8 Ell. & 
 
 Bl 836), 320. 
 
 Vernon v. Voegler (103 Ind. 
 314, 13 Am. & Eng. C. C. 
 434, 2 N. E. 821, 89 Ind. 
 
 ^^), 275, 525. 
 
 Northern Central Railway v. Price 
 
 (29 Md. 420), 401. 
 Cent. R. Co. v. State (29 
 
 Md. 420, 31 Md. 357), 
 
 459- 
 Pacific Railroad v. Mares 
 
 (123 U. S. 710), 452. 
 Penn. R, Co. v. Mahoney 
 
 (57 Pa. 187), 390. 
 Norton v. Mansfield (16 Mass. 48), 
 
 337- 
 
 V. St. Louis (97 Mo. 537, II 
 
 S.W. 242), I "4, 204, 208. 
 
 Notting Hill, The (9 P. D. 105), 373. 
 
 Noyes v. Gardner (147 Mass. 505, 18 
 
 N. E. 423), 362, 487. 
 Nugent V. Miss. Levee Comrs. (58 
 Miss. 197), 317. 
 
 O'Brien v. New York (15 N. Y. Supp. 
 
 520), 315, 318. 
 
 V. St. Paul (25 Minn. 333, 33 
 
 Am. Rep. 470, 18 Minn. 
 
 176), 270, 271, 281. 
 
 O'Connell v. Lewiston (65 Me. 34, 20 
 
 Am. Rep. 673), 241, 242. 
 O'Connor v. New York (29 N. Y. St. 
 
 Rep. 502), 198. 
 O'Gorman v. Morris (26 Minn. 267), 
 
 103, 128, 154. 
 O'Laughlin v. Dubuque (42 la. 539), 
 
 191. 
 .O'Leary v. Board of Com. (79 Mich. 
 281, 19 Am. St. Rep. 
 169, 7 L. R. A. 170), 49, 
 317- 
 V. Mankato (21 Minn. 65), 
 190, 479. I 
 
 O'Malley v. Dorn (7 Wis. 236, 73 Am. 
 
 Dec. 403), 440. 
 O'Meara v. New York (N. Y.) (i 
 
 Daly 425), 46, 48. 
 O'Neil v. Deerfield Tp. (Mich.) (49 
 N. W. Rep. 596), 234. 
 V. Detroit (50 Mich. 133), 259. 
 V. New Orleans (30 La. Ann. 
 220, 31 Am. Rep. 221), 
 103, 185, 186. 
 O'Neill V. West Branch (81 Mich. 544, 
 
 45 N. W. 1023), 135, 259, 487. 
 Oates V. Bank (100 U. S. 239), 109. 
 Ochsenbeiri v. Sharpley (85 N. Y. 214), 
 
 471. 
 Odell V. Schroeder (58 111. 353), 40, 41, 
 
 42. 
 Ogg V. Lansing (35 Iowa 495, 14 Am. 
 
 Rep. 499), 43, 44. 
 Ohio, etc. R. Co. v. Trowbridge (Ind.) 
 
 (45 Am. & Eng. R. R. Cas. 200, 26 
 
 N. E. Rep. 64), 373. 
 Oldfield V. N. Y., etc. R. Co. (14 N. 
 
 Y. 310), 411. 
 Oliver v. Kansas City (69 Mo. 79), 
 
 174- 
 v. Worcester (102 Mass. 489, 
 3 Am. Rep. 485), 51, 69, 
 83, 240, 282, 286, 298, 304, 
 316. 
 Olson V. Chippewa Falls (71 Wis. 
 558), 149, 190. 
 V. Worcester (142 Mass. 536, 
 8 N. E. Rep. 441), 200, 
 206, 243, 353, 367, 369. 
 Omaha, etc. R. Co. v. Brown (46 N. 
 
 W. Rep. 39), 212, 218. 
 Onderdonk v. Smith (23 Blatch. C. C. 
 
 562), 74. 
 Orcutt V. Kittery Point Bridge Co. 
 
 (53 Me. 500), 179, 220, 233. 
 Orleans v. Perry (24 Neb. 831), 430. 
 Orme v. Richmond (79 Va. 86), 104, 
 
 149, 160, 191. 
 Orth V. Milwaukee (59 Wis. 336, 18 
 
 N. W. 10), 211. 
 
 Osage City v. Brown (27 Kas. 74), 145. 
 
 Osborne V. Hamilton (29 Kas. i), 357. 
 
 v. McMasters (40 Minn. 103, 
 
 12 Am. St. R. 698, 41 
 
 N. W. 543),- 5. 
 
 Otis V. Janesville (47 Wis. 422, 2 N. 
 
 W. 783), 407. 
 Otto Township v. Wolf (106 Pa. 608), 
 
 360, 365. 
 Ouderkirk v. Central National Bank 
 (119 N. Y. 263, 23 N. E. 875), 10. 
 
lii 
 
 TABLE OF CASES. 
 
 r References 
 are to pages. 
 
 Overacre v. Blake (82 Cal. ']^'), 466. 
 Owen County v. Washington Tp. 
 
 (121 Ind. 379, 23 N. E. 257), 229. 
 Owens V. Missionary Soc, etc. (11 N. 
 Y. 392), 328. 
 V. Richmond, etc. R. Co. (88 
 N. C. 502), 457. 
 Ozier v. Hinesburgh (44 Vt. 220), 146. 
 
 Pack V. New York (8 N. Y. 222), 325, 
 
 326. 
 Paddock v. Syracuse (61 Hun 8, 15 
 
 N. Y. Supp. 387), 263. 
 Page V. Bucksport(64 Me. 51, 18 Am. 
 
 Rep. 239), 231, 377. 392. 520. 
 Paine v. Brockton (138 Mass. 564), 
 . 160, 192. 
 V. Delhi (116 N. Y. 224, 22 N. 
 
 E. 405), 272. 
 V. Partridge (i Shower 231, 
 Carth. 191), 23, 26, 289. 
 Painter v. Pittsburgh (46 Pa. 213), 
 
 324, 327. 
 Palmer v. Andover (56 Mass. [2 Cush.] 
 601), 383. 
 V. Bearing (93 N. Y. 7), 465. 
 V. Delaware & Hudson Canal 
 Co. (120 N. Y. 170, 24 N. 
 E. 302), 8. 
 V. Portsmouth (43 N. H. 265), 
 
 131- 
 V. Portsmouth (48 N. H. 265), 
 
 332. 
 Parish v. Eden (62 Wis. 272, 22 N. 
 
 W. 399). 355. 357. 444- 
 Parker v. B. & H. Steamboat Co. (109 
 Mass. 449), 505. 
 V. Cohoes (10 Hun 531, affi'd 
 
 74 N. Y. 610), 386. 
 V. Lowell {•j'j Mass. [11 Gray] 
 
 353), 83, 286, 295. 
 V. Macon (39 Ga. 725, 99 Am. 
 
 Dec. 486), 62, 102, 194. 
 V. Portland Publishing Co. (69 
 
 Me. 175), 478. 
 V. Rutland (56 Vt. 224), 106, 
 162, 250. 
 Parkhill v. Brighton (61 la. 104, 15 N. 
 
 W. 853), 427, 487. 
 Parnaby v. Lancaster Canal Co. (11 
 
 Ad. & El. 223), 77, 293. 
 Parris v. Green Island (14 N. Y. Supp. 
 
 703), 435, 440. 
 Parrott v. Knickerbocker Ice Co. (46 
 
 N. Y. 361), 527. 
 Parsons V. Goshen (28 Mass. [i i Pick.] 
 396), 337. 
 
 Parsons V. Lindsay (26 Kas. 426), 495. 
 
 V. Railroad (94 Mo. 286), 453. 
 
 V. Vestry, etc. (L. R. 3 C. P. 
 
 56), 93- 
 
 Patch V.Covington (Ky.) (17 B. Men. 
 
 722, 66 Am. Dec. 186), 46, 103. 
 Patterson v. Prop. East Bridge, etc. 
 
 Co. (40 Me. 404), 219. 
 Paul V. Detroit (32 Mich, iii), 260. 
 Paulson V. Pelican (Wis.) (48 N. W. 
 
 Rep. 715), 204. 
 Paxon V. Sweet (13 N. J. L. 196), 207. 
 Payne v. Lowell (92 Mass. 147), 204. 
 V. Partridge (i Salk. 12), 212. 
 V. Troy, etc. R. Co. (N. Y.) (9 
 Hun 526), 479, 485. 
 Peach V. Utica (N. Y.) (10 Hun 477), 
 
 141, 426. 
 Peake v. New Orleans (139 U. S. 342), 
 
 315. 351.352. 
 Pearson v. Zable (78 Ky. 170), 272, 
 
 324. 
 Peck v. Ellsworth (36 Me. 393), 179. 
 Pedrick v. Bailey (78 Mass. 161), 187. 
 Pembroke v. Hannibal, etc. R. Co. 
 
 (32 Mo. App. 61), 233. 
 Pendergast v. Clinton (147 Mass. 402, 
 
 18 N. E. 75), 243. 
 Penn. & Ohio Canal Co. v. Graham 
 
 (63 Pa. 290), 508. 
 Pennoyer v. Saginaw (8 Mich. 534), 
 
 49. 
 Pennsylvania Railroad Co. v. Coon 
 
 (1 1 1 Pa. 430), 9. 
 Pennsylvania R. Co. v. Horst (no 
 
 Pa. 226), 467. 
 Pennsylvania Ry. Co. v. Mish (115 
 
 Pa. 514, 4 Cent. Rep. 276), 180. 
 
 Pennsylvania Co. v. Langendorff 
 
 (Ohio) (28 N. E. 
 
 Rep. 172, 44 Alb. 
 
 L.J. 190). 435- 
 
 Co. V. Roy (102 (J. S. 
 
 450. 8. 
 Penso V. McCormick (125 Ind. no, 
 
 21 Am. St. Rep. 211), 8. 
 People V. Adsit (N. Y.) 12 Hill 619), 
 
 117.141- 
 V. Albany (N. Y.) (n Wend. 
 
 539), 26,62, 117, 369. 
 V. Baltimore, etc. Railroad Co. 
 
 (117 N. Y. 150, 22 N. E. 
 
 1026), 80. 
 V. Blake (60 Cal. 497), 136. 
 V. Chenango, County (11 N. 
 
 Y. 571), 313, 326. 
 V. Cooper (6 Hill 516), 347. 
 
Reference'!! "j 
 are to pages. \ 
 
 TABLE OF CASES. 
 
 liii 
 
 People V. Cunningham (i Denio 524, 
 43 Am. Dec. 709), 152, 
 180. 
 V. Dennison (84 N.Y. 272), 31. 
 V. Flagg (46 N. Y. 401), 80. 
 V. Horton (64 N. Y. 610), 180. 
 V. Kelly (76 N. Y. 475), 212. 
 V. Loehfelm (102 N. Y. i, 5 
 
 N. E. 783), 135, 180. 
 V. Mattimore (N. Y.) (45 Hun 
 
 448), 207. 
 V. Mayor, etc. (59 How. Pr. 
 
 277), 152. 
 V. Miles (56 Cal. 401), 30. 
 V. Oran (121 111. 652, 13 N. E. 
 
 726), 536. 
 V. Supervisors (112 N.Y. 585, 
 
 20 N. E. 549), 79. 
 V. Town Auditors (74 N. Y. 
 310), 125. 
 Peoria v. Simpson (no 111. 294, 51 
 
 Am. Rep. 683), 187, 390. 
 Perkins v. Fayette (68 Me. 152), 146, 
 
 245.379. 385- 
 V. Lawrence (136 Mass. 305), 
 
 284. 
 V. New Haven (53 Conn. 
 
 ?I4). 39- 
 Perry v. Worcester ('72 Mass. [6 
 
 Gray] 544, 66 Am. Dec. 431), 39, 
 
 83, 215, 273, 285, 286. 
 Peru V. Gleason (91 Ind. 566), 337. 
 Peters v. Fergus Falls (35 Minn. 549, 
 
 29 N. W. 586), 281. 
 Petersburg v. Apolegrath (Va.) (28 
 
 Gratt. 321, 26 Am. Rep. 357), 72. 
 Pettengill v. Yonkers (116 N. Y. 558, 
 
 22 N. E. 1095), 148, 318, 362. 
 Pettigrew v. Evansville (25 Wis. 223, 
 
 3 Am. Rep. 50), 274, 281. 
 Pfeifer v. Lake {^H I"- App. 367), 
 
 182, 190. 
 Phelps V. Mankato (23 Minn. 276), 
 
 29s. 479- 
 Philadelphia v. Collins (68 Pa. 106), 
 
 75- 
 v. Smith (23 W. N. C. 
 
 242), 423. 
 etc. R. Co. v. Boyer (97 
 
 Pa. 91), 448. 
 etc. R. Co. V. New York 
 
 (27 Am. & Eng. 
 
 C. C. 9), 71. 
 R. Co. V. Philadelphia, 
 
 etc. Towboat Co. 
 
 (23 How. [U. S.] 
 
 209), 212, 438,439- 
 
 Philbrick V. Pittston (63 Me. 477), 246. 
 Phillips V. Milwaukee, etc. R. Co. {;]^ 
 Wis. 349, 46 N. W. 545, 
 9L.R. A. 521), 453. 
 V. Ritchie County, 31 W. Va. 
 477, 7 S. E. 427), 104, 
 263, 383. 
 V. South Western R. Co. (L. 
 R. 4 Q. B. D. 406, 5 C. P. 
 D. 280, 49 L. J. 233), 
 500, 502, 530, 531. 
 V. Willow {^(l Wis. 6), 477. 
 Phinizy v. Augusta (47 Ga. 260), 272, 
 
 279. 
 Pickard v. Smith (10 C. B. N. S. 470), 
 
 322. 
 Pierce v. Cunard S.S. Co. (Mass.) (26 
 N. E. Rep. 415), 401. 
 V. New Bedford (129 Mass. 
 534, 37 Am. Rep. 387), 
 167. 
 Pinkham v. Topsfield (104 Mass. 78), 
 
 207. 
 PioUet v. Summers (106 Pa. 95), 162. 
 Pittsburgh v. Clarksville (58 N. H. 
 ' 291), 211. 
 v. Grier (22 Pa. 54), 72, 
 
 327- 
 Alley, ex parte (104 Pa. 
 
 622), 135. 
 etc. R. Co. v. Powers (74 
 
 111. 341), 529- 
 etc. R. Co. V. Taylor (104 
 Pa. 306), 431,491,528. 
 Pittston V. Hart (89 Pa. 389). 190. 
 Plattsmouth v. Mitchell (20 Neb. 228), 
 
 174. 
 Platz V. Cohoes (89 N. Y. 219, 24 
 Hun loi, 42 Am. Rep. 286), 437, 
 524. 
 Plum V. Fond du Lac (51 Wis. 393, 
 
 8 N. W. 283), 262. 
 Plumb V. Kansas City (84 Mo. 112), 
 
 224. 
 Plymouth v. Graver (125 Pa. 24, 17 
 Atl. 249), 149, 155, 
 190, 227, 442, 528. 
 v. Milner (117 Ind. 324, 20 
 N. E. 235), 427. 
 Pollard V. Woburn (104 Mass. 519), 
 
 427. 
 Pollet V. Long (56 N. Y. 200), 382. 
 Pollock V. Louisville (Ky.) (13 Bush. 
 
 220,39,40. 
 Poml'rey v. Saratoga Springs (104 N. 
 Y. 459, II N. E. 43), 130, 135, 186, 
 205, 354. 366, 477- 
 
liv 
 
 TABLE OF CASES. 
 
 r References 
 \_are to pages. 
 
 Ponca V. Crawford (iS Neb. 551, 26 
 
 N. W. 365, 23 Neb. 662, 8 Am. St. 
 
 Rep. 144, 37 N. W. 609), 104, 150, 
 
 174, 362, 442. 
 Pontiac v. Carter (32 Mich. 164), 60, 
 
 281. 
 Porter v. Attica (N. Y.) (33 Hun 605), 
 
 134. 
 Porter County v. Dombke (94 Ind. 
 
 72), 362. 
 Port Jervis v. First Nat. Bank (96 N. 
 
 Y. 550), 335, 337. 
 Portland V. Richardson (54 Me. 46), 
 
 335- 
 V. Taylor (125 Ind. 522, 126 
 Ind. 522, 25 N.E.459), 
 190. 
 Posey ville v. Lewis (126 Ind. 80), 427. 
 Post V. Boston (141 Mass. 189, 4 N. 
 E. 815), 154, 155,243.370. 
 V. Clark (35 Conn. 342), 367. 
 Potter V. C. & N. W. R. Co. (21 Wis. 
 372), 402. 
 V. Castleton (53 Vt. 435), 146. 
 Powers V. Boston (27 N. E. Rep. 995), 
 242. 
 V. Council Bluffs (50 la. 197), 
 
 272, 295, 297. 
 V. Harlow (57 Mich. 116, 23 
 
 N. W. 610), 497. 
 V. Woodstock (38 Vt. 44), 
 250. 
 Prather v. Lexington (Ky.) (13 B. 
 Mon. 559, 56 Am. Dec. 
 
 585), 41. 
 V. Richmond, etc. R. Co. 
 (80 Ga. 427, 9 S. E. 
 530), 457- 
 Pratt V. Sherburne (53 Vt. 370), 250. 
 V. Weymouth (147 Mass. 245, 
 252, 6 N. E. 671), 384. 
 Pratt, etc. Co. v. Brawley (83 Ala. 371, 
 
 3 Am. St. Rep. 751), 412, 420. 
 Pray v. Jersey City (32 N. J. L. 394), 
 
 83, 106, 256. 
 Prentiss v. Boston (112 Mass. 43), 
 
 155. 223. 
 Prideaux v. Mineral Point (43 Wis. 
 
 513, 28 Am. Rep. 558), 434, 466. 
 Priest V. Nichols (1 16 Mass. 401), 448. 
 Prince v. Lynn (149 Mass. 193, 21 N. 
 
 E. 296), 314. 
 Prince George's County v. Burgess 
 
 (61 Md. 29), 122. 
 Princeton v. Gieske (93 Ind. 102), 276. 
 Proprietors, etc. v. Lowell (73 Mass. 
 [7 Gray] 223), 83, 286. 
 
 Prosser v. Ottumvva (47 la. 509), 495. 
 Protestant Episcopal Church v. Ana- 
 
 mosa (2 L. R. A. 606), 103. 
 Providence v. Clapp (17 How. [U.S.] 
 
 161), 100, 106, 257. 
 Puffer V. Orange (122 Mass. 389), 157, 
 
 159. 
 Pullman, etc. Co. v. Barker (4 Col. 
 
 344, 34 Am. Rep. 89), 395. 
 Pullman Company v. Bluhm (109 III. 
 
 20, 50 Am. Rep. 601), 521. 
 Pumpellv V; Green Bay, etc. Co. (15 
 
 Wall.tU. S.] 166), 275. 
 Putnam v. Broadway, etc. R. Co. (55 
 
 N. Y. 108), 382. 
 
 Quaife v. Chicago, etc. R. Co. (48 
 
 Wis. 513), 505. 
 Quarman v. Burnett (6 M. & W. 499), 
 
 327- 
 Queen (The) v. Poole (L. R. 19 Q. B. 
 
 D. 602), 117. 
 Queen v. Williams (L. R. 9 App. Cas. 
 
 418), 292. 
 Quill V. Indianapolis (124 Ind. 292, 23 
 
 N. E. 788), 142. 
 Quincy v. Barker (81 III. 300, 25 Am. 
 Rep. 278), 190. 
 V. Jones (76 III. 232, 20 Am. 
 Rep. 243), 281. 
 Quinlan v. Manistique (Mich.) (48 N. 
 W. Rep. 172), 229. 
 V. Utica (11 Hun 217, 74 N. 
 Y. 603), 205, 477. 
 Quinton v. Burton (61 la. 471, 16 N. 
 W. 569), 211, 216. 
 
 Racho V. Detroit (51 N. W. Rep. 360), 
 
 259. 
 Radcliff's Exrs. v. Brooklyn (4 N. Y. 
 
 i95)> 279- 
 Radley v. Liverpool, etc. R. Co. (L. 
 
 R. I App. Cas. 754, 10 Exch. loi), 
 
 16, 401. 
 Radway v. Briggs (37 Id. 256), 73. 
 Railroad v. Alabama (loi U. S. 832), 
 
 3°- 
 
 Railroad Co. v. Barron (5 Wall. 90, 
 
 105, December 
 
 1866), 508. 
 
 V. Gladmon (15 Wall. 
 
 [U. S.] 401), 452, 
 
 459- 
 v. Clem (123 Ind. 15, 
 
 23N. E.965),484. 
 V. Crest (Ind.) (see 116 
 Ind. 431), 434. 
 
References 1 
 are to pages. \ 
 
 TABLE OF CASES. 
 
 Iv 
 
 Railroad Co. v. Eadie (43 Ohio St. 
 
 91), 407. 
 V. McLendon (63 Ala. 
 
 266), 355. 
 V. Ormsby (Va.) (27 
 
 Gratt. 476), 419. 
 V. Pinchin (112 Ind. 
 
 592). 434- 
 V. Stout (17 Wall. [U. 
 S.] 657), 410, 467, 
 
 469, 471- 
 V. Ta>lor (io4Pa. 306), 
 
 442. 
 V. Tennessee (loi U. 
 
 S. 337), 30- 
 V. Wyant (ii4lnd.525, 
 17 N. E. ii8),485. 
 Railway Co. v. Kellogg (94 U. S. 
 
 475), 517. 
 Randall v. Baltimore, etc. R. Co. (109 
 
 U. S. 478), 467. 
 Rankin v. Buckman (9 Or. 253), 123. 
 Ranlett v. Lowell (126 Mass. 431), 
 
 273- 
 Rapho V. Moore (68 Pa. 404), 104, 
 
 122, 361, 367. 
 Ray V. Manchester (46 N. H. 59), 167, 
 
 249. 
 V. St. Paul (40 Minn. 458), 154. 
 Raymond v. Fish (51 Conn. 80), 44. 
 V. Lowell (60 Mass. 524, 53 
 Am. Dec. 57, 6 Cush. 
 524), 133, 391, 434. 
 V. Sheboygan (76 Wis. 335, 
 45 N. W. 125), 171, 
 262. 
 Readdy v. Borough of Shamokin (137 
 
 Pa. 98), 522. 
 
 Reardon v. St. Louis County (36 Mo. 
 
 555), 126. 
 
 V. Thompson (149 Mass. 
 
 267), 194. 
 
 Redigan v. Boston & M. Railroad 
 
 Co. (45 Alb. L. J. 62), 13. 
 Reed v. Belfast (20 Me. 246), 82, 246, 
 524. 
 V. Northfield (30 Mass. [13 
 
 Pick.] 94), 429. 
 V. New York' (97 N. Y. 620, 31 
 Hun 311), 195. 
 Reeves v. Toronto (21 N. C. Q. B. 
 
 160), 296. 
 Reg. V. Williams (N. Z.) (9 App. Cas. 
 418, L.R. 1 H.L. 107,291), 
 292. 
 V. Yorkville (22 U. C. C. P. 431), 
 92. 
 
 Rehberg v. New York (91 N. Y. 137, 
 43 Am. Rep. 657), 131, 177, 193, 
 
 219, 355- 359- 
 Reich V. New York (12 Daly 72), 201. 
 Reid V. Atlanta (73 Ga. 523), 272. 
 Reining v. Buffalo (102 N. Y. 308, 6 
 
 N. £. 792), 263. 
 Reiss V. New York Steam Company 
 
 (35 N. Y. St. Rep. 86), 527. 
 Reock V. Newark (33 N. J. L. 129), 60, 
 
 61, 329. 
 Requa v. City of Rochester (45 N. Y. 
 
 129, 6 Am. Rep. 52), 134, 174, 199,. 
 
 226, 303, 367, 425. 
 Rex V. Cross (3 Camp. 224), 152. 
 
 V. Inhabitants (2 W. Black 685), 
 
 212. 
 V. Jones (3 Camp. 230), 152. 
 V. Medley (6 C. & P. 292), 369. 
 V. Pease (4 B. & Ad. 30), 291. 
 Rexford v. State (105 N. Y. 229, 11 
 
 N. E. 514), TJ, 227. 
 Reynolds v. N. Y. C, etc. R. Co. (58 
 
 N. Y. 248), 463. 
 Rhines v. Royalton (40 N. Y. St. Rep. 
 
 662, 15 N. Y. Supp. 94zi), 137. 
 Rhinelander v. Lockport (38 N. Y. 
 
 St. Rep. 567, 14 N. Y. Supp. 850), 
 
 182. 
 Rhodes V. Cincinnati (10 Ohio 159), 
 
 270. 
 Rice V. Des Moines (40 la. 638), 520. 
 V. Montpelier (19 Vt. 470), 146, 
 231. 
 Riceman v. Havemeyer (84 N. Y. 
 
 647), 465. 
 Richards v. Bassett (10 Bam. & C. 
 
 657), 5°7- 
 V. Enfield (79 Mass. [13 
 Gray] 344), 179, 378. 
 Richardson v. Royalton, etc. T. Co. 
 
 (6 Vt. 496), 218. 
 Richmond v. Long's Adm'r (Va.) (17 
 Gratt. 375, 94 Am. 
 Dec. 461), 43, 44, 52, 
 
 329- 
 V. Smith (IS Wall. [U. S.] 
 
 429), 85, 100. 
 etc. R. Co. V. Howard (79 
 Ga. 44), 
 
 443- 
 
 v.Yeamans(86 
 
 Va. 860, 
 
 13 S. E. 
 
 946), 446. 
 
 Ricker v. Freeman (50 N. H. 420, 9 
 
 Am. Rep. 267), 384. 
 
Ivi 
 
 TABLE OF CASES. 
 
 [Re/erenca 
 are to ^agts. 
 
 Riddle v. Props, of Locks, etc. (7 
 Mass. 169), 21, 26, 7T, 81, 107, 118, 
 128. 
 
 Ridenhour v. Kansas City, etc. R. Co. 
 (102 Mo. 283, 14 S. W. 760), 7, 8. 
 
 Riest V. City of Goshen (42 Ind. 339), 
 
 434- 
 Rigney v. Chicago (102 111. 64), 275. 
 Rigony v. Schuylkill (103 Pa. 382), 
 
 104, 122. 
 Riley v. Iowa Falls (50 N. W. Rep. 
 
 33), 185, 487- 
 Ring V. Cohoes (77 N. Y. 83, 295), 
 
 149, 151, 160, 163, 309, 379, 383, 
 
 388, 395. 
 Ringland v. Toronto (23 U. C. C. P. 
 
 93), 201. , ^ . 
 
 Riordan v. Ocean Steamship Co. (124 
 
 N. Y. 655), 465. 
 Ripley v. Freeholders of Essex Co. (40 
 
 N. J. L. 45), 212, 235, 254, 256, 257. 
 Ripon V. Bittel (30 Wis. 56), 364, 499. 
 Rivers v. Augusta (67 Ga. 376, 38 
 
 Am. Rep. 787), 62. 
 Robb V. Connellsville Bar (137 Pa. 
 
 42), 423. 
 Robbins v. Chicago (4 Wall. [U. S.] 
 
 657, 2 Black 418), 174, 323, 324, 
 
 335,336. 
 Roberts v. Cincinnati (S Am. L. Rec. 
 
 73). 63. 
 Robinson v. Chamberlain (34 N. Y. 
 389), 1 01. 
 V. Cone (22 Vt. 213), 412, 
 
 417, 418, 419. 
 
 V. Evansville (87 Ind. 334, 
 
 44 Am. Rep. 770), 46. 
 
 V. Fitchburg, etc. R. Co. 
 
 (73 Mass. [7 Gray] 
 
 92), 358. 
 V. Greenville (42 Ohio St. 
 625, 51 Am. Rep. 
 857), 61, 62, 64, 65. 
 V. Rohr (73 Wis. 436, 2 L. 
 R. A. 366, 40 N. W. 
 668), 106, 349. 
 Rochefort v. Atlleborough (27 N. E. 
 
 Rep. 1013), 155, 369. 
 Rochester v. Campbell (123 N. Y. 
 405, rev. 55 Hun 
 138), 174, 208, 335. 
 v. Montgomery (72 N. Y. 
 
 65, 67), 335, 337. 
 White Lead Co. v. Roch- 
 ester (3 N. Y. 463, 
 52 Am. Dec. 316), 
 27, loi, 267, 275. 
 
 Rockeford v. Tripp (83 111. 247), 161, 
 
 184. 
 Rockford v. Hallenbeck (34 111. App. 
 
 40), 175. 
 Rockfortv. Hilderbrand (61 111. 155), 
 
 186. 
 Rockland Water Co. v. Rockland (83 
 
 Me. 267, 22 Atl. 166), 284. 
 Rodrian v. New York, etc. R. Co. (125 
 
 N. Y. 526), 463. 
 Roe V. Kansas City (100 Mo. 190, 3 
 
 S.-W. 404), 103, 173, 176, 189. 
 Rogers v. Leyden (127 Ind. 50), 467, 
 
 473- 
 V. Newport (62 Me. 101), 
 
 195- 
 V. Shirley (74 Me. 144), 245, 
 
 357. 
 Romney Marsh v. Trinity House (L. 
 
 R. 7 Ex. 247, 5 Ex. 208), 377. 
 Rooney v. Randolph (128 Mass. 580), 
 
 141, 147, 243. 
 Rosenberg v. Durfee (87 Cal. 545), 
 
 425. 
 Ross V. Clinton (46 la. 606, 26 Am. 
 Rep. 169;, 270. 
 V. Davenport (66 la. 548, 24 N. 
 W. 47), 434. 
 Roun V. Des Moines (78 la. 63, 42 N. 
 
 W. 582), 366. 
 Rouse V. Somerville (130 Mass. 361), 
 
 227. 
 Roux V. Lumber Co. (85 Mich. 519), 
 
 432, 471- 
 Rowe V. Portsmouth (56 N. H. 291), 
 
 106, 295, 299. 
 Rowell V. Lowell (73 Mass. [7 Gray] 
 
 100), 385, 390. 
 Rowland v. Gallatin (75 Mo. 34, 42 
 
 Am. Rep. 395), 313. 
 Rowley v. London & North Western 
 
 Ry. Co. (L. R. I Ex. 231, 8 Ex. 
 
 221), 501, 502, 504. 
 Ruck V. Williams (3 H. & N. 30B), 
 
 273- 
 Rtiggles V. Nevada (63 la. 185, 18 
 N. W. 866), 185, 477. 
 487. 
 V. Nantucket (65 Mass. 433), 
 
 45- 
 Rusher v. Dallas (18 S. W. Rep. 333), 
 
 39- 
 Rushville v. Adams (107 Ind. 475, 57 
 
 Am. Rep. 124, 8 N. E. 292), 64, 
 
 160, 162. 
 Russell V. Canastota (98 N. Y. 496), 
 
 149, 1SS1 176, 334,336. 
 
References '\ 
 are to pages. \ 
 
 TABLE OF CASES. 
 
 Ivii 
 
 Russell V. Columbia (74 Mo. 480, 41 
 Am. Rep. 325), 103,154, 
 324, 353. 
 V. Men of Devon (2 T. R.667), 
 22, 25, 27, 81, 82, 86, 87, 
 88, 107, 117, 123, 124, 
 223, 249. 
 V. New York (2 Den. 461), 
 
 328, 329. 
 V. Steuben (57 III. 35), 127. 
 Rychlicki v. St Louis (98 Mo. 497, 1 1 
 S. W. looi), 271. 
 
 Salida v. McKenna (Colo.) (27 Pac. 
 
 Rep. 810), 134. 
 Salina v. Trosper (27 Kas. 544, 26 
 
 N.W. 129), 357. 
 Salters v. Delaware, etc. C. Co, (N. 
 
 Y.) (3 Hun 338), 479, 485. 
 Salt Lake Citj v. HoUister (118 U. S. 
 
 256), 341. 343- 
 Sanders v. Register (Dak.) (46 N. W. 
 
 Rep. 680), 453. 
 Sandford v. Hestonville, etc. Co. (136 
 
 Pa. 84, 20 Atl. 799), 9. 
 Sandowski v. Michigan Car Co. (84 
 
 Mich. 100), 466. 
 Sands v. Manistee River, etc. Co. 
 
 (123 U. S. 288), 212. 
 Sandwich v. Dolan (133 111. 177), 430. 
 San ford v. Augusta (32 Me. 536), 
 
 246. 
 Sargent v. Hampden (38 Me. 581), 
 
 527. 
 Saukville v. State (69 Wis. 178, 33 
 
 N. W. 88), 230. 
 Saulsbury v. Ithaca (94 N. Y. 27), 
 
 134. 13s. 173. 277. 336- 
 Sauter v. New York C. R. Co. (66 N. 
 
 Y. 50). 502. 
 Savage v. Bangor (40 Me. 176), 196. 
 Savannah v. CuUens (38 Ga. 334), 77. 
 V. Donnelly (71 Ga. 258), 
 
 154. 
 V. Spears (66 Ga. 304), 275, 
 279. 
 Savings Bank v. Ward (too U. S. 
 
 195). 13- 
 Savory v. Haverhill (132 Mass. 324), 
 
 244. 
 Sawyer v. Corse (Va.) (17 Gratt. 230), 
 104. 
 V. Northfield (61 Mass. [7 
 
 Cush.] 490), 82, 227. 
 V. Oakman (i Low [U. S. D. 
 Ct.] 134, 7 Blatch. C. C. 
 290), 72. 
 
 Scales V. Chattahoochee County (41 
 
 Ga. 225), 126. 
 Scammon v. Chicago (25 111. 424, 79 
 
 Am. Dec. 334), 324. 
 Scanlon v. New York (12 Daly 81), 
 
 335- 
 Schaefler v. Sandusky (33 Ohio St. 
 
 246), 427. 
 Schattner v. Kansas City (53 Mo. 
 
 162), 60. 
 Schindler v. Milwaukee, etc. R. Co. 
 
 (44 Alb. L. J. 303), 418. 
 Schlicter v. Phillip (67 Ind. 201), 270. 
 Schmid V. Humphrey (48 la. 652, 30 
 
 Am. Rep. 414), 439. 
 Schmidt v. Bauer (80 Cal. 565, 22 
 Pac. 256), 13. 
 V. Mitchell (84 111. 195), 
 
 491- 
 Schomer v. Rochester (15 Abb. N. C. 
 
 57), 226. 
 Schoonmaker v. Wilbraham (no 
 
 Mass. 134), 478. 
 Schroth v. Prescott (63 Wis. 652, 24 
 
 N. W. 405), 151, 186, 262. 
 Schultz V. Milwaukee (49 Wis. 254, 
 
 35 Am. Rep. 779, 5 N. W. 342), 
 
 167. 
 Schumaker v. St. Paul & D. R. Co. 
 
 (Minn.) (48 N. W. Rep. 559, 12 
 
 L. R. A. 257), 387, 492. 
 Scott V. Chicago (i Biss. [U. S.] 510), 
 
 235- 
 V. Dubhn, etc. Railway (i I Ir. 
 
 C. L. 377), 401. 
 V. L. & St. K. Docks Co. (3 
 
 Hurl. & C. 596), 446. 
 V. Manchester (i H. & N. 59, 
 
 2 Id. 204), "JT, 84. 
 V. Montgomery (95 Pa. 444), 
 
 122, 142, 190. 
 V. Shepherd (2 Black. 892), 64, 
 
 382. 
 Scranton v. Catterson (94 Pa. 202), 
 
 151. 357- 
 V. Gore (124 Pa. 595, 17 
 
 Atl. 144), 442. 
 V. Hill (102 Pa, 378, 48 Am. 
 Rep. 211), 146, 192. 
 Seaman v. Koehler (122 N. Y. 646, 
 25 N. E. 353), 407- 
 V. New York (80 N. Y. 239, 
 21 Alb. L. J. 275, 36 
 Am. Rep. 612), 71, 73, 
 
 235- 
 Searing v. Saratoga (N. Y.) (39 Hun 
 
 307). 295. 
 
Iviii 
 
 TABLE OF CASES. 
 
 r References 
 are to pages. 
 
 Searles v. Manhattan R. Co. (loi N. 
 
 Y. 66i, 5 N. E.66),388. 
 Security Bank v. Cushman (121 Mass. 
 
 490). 358. 
 Seeley V. Litchfield (49 Conn. 134, 44 
 Am. Rep. 213), 195, 196. 
 V. Bridgeport (Conn.) (22 Atl. 
 Rep. 1017), 133. 
 Seifertv. Brool^lyn (loi N. Y. 136, 54 
 
 Am. Rep. 664, 4 N. E. 321), 269, 
 
 277. 295. 
 Seigel V. Isen (41 Cal. 109), 230. 
 Seigier v. Day (123 Mass. 152), 330. 
 Sellick V. Lake Shore, etc. R. Co. (52 
 
 Am. Rep. 165), 373. 
 Selma v. Perkins (68 Ala. 145), 102. 
 Semple v. Vicksburg (62 Miss. 63, 52 
 
 Am. Rep. i8i), 103, 275. 
 Seneca Falls v. Zalinski (N. Y.) (8 
 
 Hm 571), 174. 
 Sepert v. Alpena (78 Mich. 165, 45 N. 
 
 W. 1098), 260. 
 Sewell V. Cohoes (75 N. Y. 45, 1 1 Hun 
 
 626), 134, 227, 3SI, 479, 485. 
 Shardler v. Blair Co. (136 Pa. 488, 20 
 
 Atl. 539), 122, 226. 
 Sharp V. Evergreen (67 Mich. 443, 35 
 
 N. W. 67), 190, 261, 440. 
 Shartle v. Minneapolis (17 Minn. 
 
 30fS), 103, 128, 136. 
 Shaw V. Sjn Prairie (73 Wis. 105), 
 
 363. 487- 
 V. Timaru Harbour Board (L. 
 R. 15 App. Cas. 429, 59 
 L. J. P. C. 77-1. 338. 
 Shawnee County v. Topeka (39 Kas. 
 
 197), 103, 230. 
 Shawneetown v. Mason (82 111. 337), 
 
 369- 
 Sheel V. Appleton (49 Wis. 125, 5 N. 
 
 W- 27), 357, 365- 
 Shelby v. Clagett (46 Ohio St. 543, 20 
 N. E. 407, 5 L. R. A. 606), 104, 139, 
 141.357, 364,486,487. 
 Shelley v. Austin (74 Tex. 608, 12 S. 
 
 W. 753), 132. 
 Shepard v. Pulaski County (Ky.) (18 
 
 S. W. Rep. 15), 306. 
 Shephard v. Chelsea (86 Mass. [4 
 
 Allen] 113), 390. 
 Sherbourne v. Yuba County (21 Cal. 
 
 113, 81 Am. Dec. 151), 44, 105. 
 Sheridan v. Salem (14 Or. 328), 104, 
 
 124. 
 Sherman v. Grenada (51 Miss. 186) 
 328. 
 V. Nairey i:J^ Tex. 291), 231. 
 
 Sherry v. Rochester (62 N. H. 346), 
 
 249. 
 Sherwood v. Dist. of Col. (3 Mackey 
 276,51 Am. Rep. 776), 
 156, 362. 
 V. Railway Co. (82 Mich. 
 374), 496. 
 Shingle v. Covington (Ky.) (i Bush. 
 
 617), 72. 
 Shinners v. Proprietors, etc. (154 
 
 Mass. 168, 28 N. E. lo), 482, 484. 
 Shippy V. Au Sable (85 Mich. 280, 48 
 
 N. W. Rep. 534), 174, 177, 417, 
 
 425. 
 Shook V. Cohoes (io8 N. Y. 648, 15 
 
 N. E. 531, II Cent. Rep. 301), 180, 
 
 186. 
 Shortel v. St. Joseph (104 Mo. 114, 16 
 
 S. W. 397), 334. 
 Sides v. Portsmouth (59 N. H. 24), 
 
 106, 154. 
 Sikes V. Manchester (59 la. 65, 12 N. 
 
 W. 755), 153- 
 Silby Mfg. Co. v. State (104 N. Y. 562, 
 
 II N. E. 264), Tj. 
 Silverton v. Mariott (59 L. J. 61), 194. 
 Simmonds v. Camden (26 Ark. 276, 
 
 7 Am. Rep. 620), 280. 
 Simon v. Atlanta (67 Ga. 618, 44 Am. 
 
 Rep. 739), 48, 153- 
 Simpson v. Keokuk (34 la. 568), 295. 
 Sinclair v. Baltimore (59 Md. 592), 
 
 148, 164. 
 Sioux V. Weare (59 la. 95, 12 N. W. 
 
 786), 335. 
 Sipple V. State (99 N. Y. 284, i N. E. 
 
 892, 3 N. E. 657), 30. 
 Skinner v. Morgan (21 111. App. 209), 
 
 154- 
 Slater v. Burlington, etc. R. Co. (71 
 
 la. 209, 32 N. W. 264), 419. 
 Slattery v. O'Connell (Mass.) (26 N. 
 
 E. Rep. 430, 10 L. R. A. 653), 412. 
 Sleeper v. Sandown (52 N. H. 244), 
 
 58, 176, 426. 
 Slosson v. Burlington, etc. R. Co. (51 
 
 la. 294), 457. 
 Small V. Danville (51 Me. 359), 285, 
 
 316, 339. 
 Smalley v. Appleton (70 Wis. 340, 35 
 
 N. W. 729, 75 Wis. 18, 43 N. W. 
 
 826), 176, 186, 262, 505. 
 Smedis v. Brooklyn Railroad Co. (88 
 
 N. Y. 13), 465. 
 Smethurst v. Barton Square, etc. 
 
 Church (148 Mass. 261, 2 L. R. A. 
 
 695, 19 N. E. 387), 242. 
 
References "I 
 are to pa^s.\ 
 
 TABLE OF CASES. 
 
 lix 
 
 Smid V. New York (49 N. Y. Super. 
 
 Ct. 126), 201. 
 Smith V. At'anta (75 Ga. no), 272. 
 V. Bangor (72 Me. 249), 200. 
 V. Boston, etc. R. Co. (120 
 Mass. 490, 21 Am. Rep. 
 538), 440. 
 V. Brookljn (36 Hun 224, 
 affi'd 107 N. Y. 655), 
 201. 
 V. Central Railroad, etc. Co. 
 (82 Ga. 801, 10 S. E. Ill), 
 
 443- 
 V. Chicag-o (38 Fed. Rep. 3S8), 
 
 203. 
 V. Dedham (62 Mass. [8 Cush.] 
 
 522), 298. 
 V. Derby Local Board (L. R. 3 
 
 C. P, D. 423), 94. 
 V. First Nat. Bank (99 Mass. 
 
 60s), 458. 
 V. Floyd County (85 Ga. 420), 
 
 126. 
 V. Gould (61 Wis. 31, 20 N. 
 
 W. 369), 60. 
 V. Havemeyer (36 Fed. Rep. 
 
 927), 72. 
 V. Hestonville, etc. R. Co. (92 
 
 Pa. St. 450, 2 Am. &Eng. 
 
 R. C. 12) 420. 
 V. Holcotnl) (99 Mass. 552), 
 
 508. 
 V. Kanawha Co. (W. Va.) (33 
 
 W. Va. 713, II S. E. I), 
 
 377- 
 V. Leavenworth (15 Kas. 81), 
 
 103, 189, 362. 
 V. London, etc. Docks Co. (L. 
 
 R. 3 C. P. 326), 72. 
 V. London, etc. Railway Co. 
 
 (L. R. 6 C. P. 14), 72, 
 
 373- 
 V. Lowell (139 Mass 33, i N. 
 
 E. 412), 160. 
 V. N. Y. etc. R. Co. (46 N. J. L. 
 
 7), 290. 
 V. New York (66 N. Y. 295, 23 
 
 Am. Rep. 53), 273, 295, 
 
 309- 
 V. Overby (30 Ga. 241), 508. 
 V. Philadelphia {81 Pa. 38, 22 
 
 Am. Rep. 731), 75. 
 V. Rochester (76 N. Y. 506), 
 
 43. 47, 65, 169, 337, 347- 
 V. Sherwood (62 Mich. 159, 28 
 
 N. W. 806), 359, 487. 
 
 488. 
 
 Smith V. Smith (19 Mass. [2 Pick.] 
 
 621, 13 Am. Dec. 464), 
 
 461. 
 V. St. Joseph (45 Mo. 449), 
 
 103. 
 V. St. Paul City Ry. Co. (32 
 
 Minn, i, 50 Am. Rep. 
 
 550), 447- 
 V. Washington (20 How. [U. 
 
 S.] 135), 60, 280. 
 V. West Derby Local B. (L. R. 
 
 3 C. P. D. 423), 119. 
 V. Wildes (143 Mass. 556, 3 N. 
 E. 744), 58, 176,425. 
 Smithwick v. Hall & Upson Co. (59 
 
 Conn. 261, 12 L. R. A. 279), 402. 
 Smoot V. Wetumpka (24 Atl. Rep. 
 
 112), 102, 234. 
 Sneesby v. Lancashire, etc. Ry. Co. 
 (L. R 9 Q. B. 263, 1 Q. B. D. 42), 
 
 373. 514- 
 
 Snow V. Provincetown (120 Mass. 
 580), 8. 
 
 Soper V. Henry County (26 la. 264), 
 123. 
 
 Southampton, etc. Bridge Co. v. Lo- 
 cal Board (8 El. & Bl. 812), 119. 
 
 Southern Exp. Co. v. Texarkana Wa- 
 ter Co. (Ark.) (15 S. W. Rep. 361), 
 
 353- 
 Southern Kansas Railway Co. v. 
 
 Walsh (26 Pac. Rep. 45), 8. 
 South Omaha v. Cunningham (Neb.) 
 
 (47 N. W. Rep. 930), 190. 
 South Ottawa v. Foster (20 111. 296), 
 
 127. 
 Southwell V. Detroit (74 Mich. 438), 
 
 324- . 
 Spangler v. San Francisco (84 Cal. 
 12, 23 Pac. 1091, 18 Am. St. Rep. 
 1 58), 296, 297. 
 Sparhawk v. Salem (83 Mass. [i Al- 
 len] 30, 79 Am. Dec. 702)/ 155. 
 Spaulding v. Jarvis (N. Y.) (32 Hun 
 621), 442. 
 V. Pennsylvania Co. (Pa.) 
 (12 L. R. A. 698), 
 504. 
 V. Sherman (75 Wis. "JT, 
 
 43 N. W. 558), 234. 
 V. Winslow (74 Me. 528), 
 378. 
 Spearbracker v. Larrabee (64 Wis. 
 573, 25 N. W. 555), 106, 229, 262, 
 
 357. 364. 
 Spelman v. Portage (41 Wis. 144), 
 284, 255. 
 
Ix 
 
 TABLE OF CASES. 
 
 C References 
 are to pages. 
 
 Spencer v. Hartford, etc. R. Co. (lo 
 
 R. I. 14), 217, 
 Spicer v. Elkhart Co. (126 Ind. 369), 
 
 229. 
 Spier V. Brooklyn (18 N. Y. Supp. 
 
 170), 63, 166. 
 Splittorf V. State (108 N. Y. 205, 15 
 
 N. E. 322), 428, 465. 
 Spooner v. Freetown (29 N. E. Rep. 
 
 662), 243. 
 Sprague v. Bristol (63 N. H. 430), 
 
 392. 
 Spring V. Hyde Park (137 Mass. 554), 
 
 337- 
 Springfield v. Doyle (76 111. 202), 356. 
 V. Spence (39 Ohio St. 
 663), 271. 
 Squires v. ChiUicothe (89 Mo. 226, 
 
 5 W. Rep. 366), 186. 
 St. John V. Mayor (N. Y.) (3 Bos. 
 
 483)- 67. 
 St. Louis, A. & T. Railway Co. v. 
 Finley (79 Tex. 85, 15 S. W. 
 266), 8. 
 St. Louis Bridge Co. v. Miller (111.) 
 
 (28 N. E. Rep. 1091), 233. 
 St. Louis, etc. R. Co. v. Finley (Tex.) 
 
 (IS S. W. Rep. 266), II. 
 St. Louis, etc. R. Co. v. Jones (Tex.) 
 
 (14 S. W. Rep. 309), 485. 
 St. Louis, etc. Ry. Co. v. Weaver (35 
 
 Kas. 412, II Pac. 408), 453. 
 St. Louis, etc. R. Co. v. Weaver (35 
 
 Kas. 412), 482. 
 St. Paul V. Seitz (3 Minn. 297), 224. 
 Stack V. East St. Louis (85 111. 377, 
 28 Am. Rep. 619), 281.' 
 V. Wood (136 Mass. 35,3), 457. 
 Stackhouse v. Lafa)ette (89 Am. 
 
 Dec. 45o\ 39. 
 Stafford v. Oskaloosa (64 la. 251, 20 
 N. W. 174, 57 la. 748, II N. W. 
 668), 144, 147, 151, 195, 276, 407. 
 Stanchfield v. Newton (142 Mass. 
 
 no, 7 N. E. 703), 272, 295. 
 Stanley v. Davenport (54 la. 463, 37 
 Am. Rep. 216, 2 N. W. 1064, 6 N. 
 W. 706), 161, 165, 340. 
 Stanton v. Allen (N. Y.) (5 Den. 433), 
 347- 
 V. Salem (145 Mass. 476, 5 
 
 N. E. 429), 205. 
 V. Springfield (91 Mass. 566, 
 12 Allen 566), 200, 202, 
 203, 207. 
 Staples V. Canton (69 Mo. 592), 174, 
 191, 220, 231, 232. 
 
 Stark V. Lancaster (57 N. H. 88), 
 
 136, 398. 
 State V. Berdetta (73 Ind. 185, 38 
 
 Am. R. 117), 130. 
 V. Branin (N. J.) (3 Zab. 484), 
 
 254. 
 V. Burlington (36 Vt. 521), 82, 
 
 106. 
 V. Demaree (80 Ind. 519), 225. 
 V. Freeholders of Essex (N. J.) 
 
 (3 Zab. 214), 211. 
 V. Gorham (37 Me. 457), 336. 
 V. Hall (97 N. C. 474), 52. 
 V. Hill (54 Ala. 67), 31. 
 V. Mills (N. J.) (5 Vr. 177), 254. 
 V. Northumberland (46 N. H. 
 
 628), 211. 
 V. Orange (31 N. J. L. 131), 
 
 225. 
 V. Powers (38 Ohio St. 54), 128. 
 V. Supervisors (41 Wis. 28), 
 
 225. 
 V. Thomaston (74 Me. 198), 154. 
 V. Yopp (97 N. C. 477, 2 Am. 
 
 St. Rep. 305), 187. 
 State Railroad Tax Cases (92 U. S. 
 
 575). 85. 
 
 Stebbins v. Keehe Tp. (55 Mich. 552, 
 
 22 N. W. 37), 187, 234. 
 
 V. Keene Tp. (60 Mich. 214, 
 
 26 N. W. 885), 229, 234. 
 
 Steel V. Dartford Local Board (60 L. 
 
 J. Rep. Q. B. D. 256), 93. 
 Steele v. Boston (128 Mass. 583, 35 
 Am. Rep. 781), €9, 167, 
 240, 282. 
 V. Burkhardt (104 Mass. 59, 6 
 Am. Rep. 191), 242, 439. 
 Steinson v. Heath (3 Lev. 400), 23. 
 Stephenson v. Equitable Gas Light 
 Co. (37 N. Y. St. Rep. 658, 14 N. 
 Y. Supp. 61), 425. 
 Sterling v. Merrill (124 111. 552, 11 N. 
 
 E. 6), 234. 
 Stetson v. Kempton (13 Mass. 272), 
 
 337- 
 Stevens v. Rodger (N. Y.) (25 Hun 
 
 54), 533- 
 Stewart v. Clinton (79 Mo. 603), 271, 
 280, 349. 
 V. New Orleans (9 La. Ann. 
 461, 61 Am. Dec. 218), 
 40, 52. 
 V. Ripon (38 Wis. 584), 515. 
 Stickney v. Salem (85 Mass. [3 Allen] 
 
 374). 179. 220, 231. 
 Stier V. Oskaloosa (41 la. 353), 434. 
 
References ~\ 
 are to ^ages.^ 
 
 TABLE OF CASES. 
 
 Ixi 
 
 Stilling V. Thorp (54 Wis. 528, 11 N. 
 
 W. 906), 106, 128, 186, 200. 
 Stillson V. Hannibal, etc. R. Co. (67 
 
 Mo. 674), 419. 
 Stillwell V. New York (49 N. Y. Super. 
 
 Ct. 360, affi'd 96 N. Y. 649), 42. 
 Stinson v. Gardiner (42 Me. 248), 177, 
 
 179, 246. 
 Stock V. Boston (149 Mass. 410, 21 N. 
 
 E. 871), 75, 275. 
 Stockwell V. Fitchburg (no Mass. 
 
 ^ 30s), 193- 
 
 Stockton V. Frey (4 Gill 406), 508. 
 
 V. Williams (i Doug. [Mich.] 
 
 546), 506. 
 
 Stoddard v. Saratoga Springs (127 
 
 N. Y. 261, 27 N. E. 
 
 1033), 66, 274, 302, 
 
 340. 347- 
 V. Winchester (Mass.) (27 
 N. E. 1014), 362, 365. 
 Stokes V. Tift (64 Ga. 312), 233. 
 Stone V. Attleborough (140 Mass. 
 326, 4 N. E. 570), 193. 
 V. Dry Dock, etc. Railroad 
 Co. (115 N. Y. 104, 21 
 N. E. 712), 8. 
 V. Hubbardston (loo Mass. 
 
 49), 161, 206. 
 V. New York (25 Wend. 157), 
 
 45- 
 V. Poland (N. Y.) (58 Hun 
 21), 485- 
 Storrs V. Utica (17 N. Y. 104, 72 Am. 
 
 Dec. 441), 154, 224. 
 Stover V. Bluehill (51 Me. 439), 520. 
 Streeter V. Breckenridge (23 Mo. App. 
 
 244), 232. 
 Strieker v. Leathers (Miss.) (13 L. R. 
 
 A. 600), 492. 
 Strieb v. Cox (in Ind. 299), 142. 
 Strohn v. New York, etc. R. Co. (96 
 
 N. Y. 305), 534. 
 Strong V. Stevens Point (62 Wis. 255, 
 22 N. W. 425), 231, 233, 262, 443. 
 Stuart V. Havens (17 Neb. 211, 22 N. 
 
 W. 419), 180. 
 Studley v. Oshkosh (45 Wis. 380), 
 
 186. 
 Suffolk V. Parker {"jg Va. 660, 52 Am. 
 
 Rep. 640), 77. 
 Sullivan v. Boston (126 Mass. 540), 
 58, 193, 244, 282. 
 V. Helena (25 Pac. Rep. 94), 
 
 103. 
 V. Holyoke (135 Mass. 273), 
 SOS- 
 
 Sullivan V. Oshkosh (55 Wis. 508, 13 
 N. W. 468), 364. 
 V. Phillips (no Ind. 320, 9 
 W. Rej). 50), 272. 
 Sullivan County v. Arnett (n6 Ind. 
 
 438). 127- 
 Summers v. Davies County (103 Ind. 
 
 262, 2 N. E. 725), 44. 
 Supply Co. v. Boundy (122 Pa. St. 
 
 449, 15 Atl. 865), 402. 
 Surocco V. Geary (3 Cal. 69), 45. 
 Susquehanna v. Simmons (n2 Pa. 
 
 384, 5 Atl. 434), 155. 
 Sussex Co. Freeholders v. Strader (18 
 
 N. J. L. 108), 26, 27, 106. 
 Sutter V. Young Tp. (130 Pa. 72, 18 
 
 Atl. 6io), 155. 
 Sutton V. Clarke (6 Taunt. 29), 26, 
 291. 
 V. Johnstone (i T. R. 784), 
 
 94- 
 V. Police Board (41 Miss. 
 
 236), 127, 
 V. Wauwatosa (29 Wis. 21, 9 
 Am. Rep. 534), 262,439, 
 440. 
 Swanzey v. Somerset (132 Mass. 312), 
 
 220. 
 Sweeney v. Newport (65 N. H. 86, 18 
 Atl. 86), 106, 249. 
 V. New York (17 N. Y. 
 Supp. 797), 485. 
 Sweet V. Gloversville (N. Y.) (12 Hun 
 
 302), 324, 362. 
 Swift V. Staten Island, etc. R. Co. 
 (123 N. Y. 64s), 8. 
 v. Tyson (16 Pet. [U. S.] i), 
 109. 
 Swineford v. Franklin County (36 
 
 Mo. 555), 307. 
 Swords V. Edgar (59 N. Y. 28, 17 
 
 Am. Rep. 295), 71. 
 Sydleman v. Beckwith (43 Conn. 9), 
 
 505. 
 Sykes v. Pawlett (43 Vt. 446, 5 Am. 
 
 Rep. 595), 178. 
 Symonds v. Clay County (71 111. 355), 
 58, 127. 
 
 Taber v. Grafmiller (109 Ind. 206, 9 
 
 N. E. 721), 130. 
 Tainter v. Worcester (123 Mass. 311, 
 
 25 Am. Rep. 90), 46. 
 Talbot v. Taunton (140 Mass. 552, S 
 
 N. E, 616), 442. 
 Tallahassee v. Fortune (3 Fla. 19, 52 
 
 Am. Dec. 358), 102. 
 
Ixii 
 
 TABLE OF CASES. 
 
 r References 
 are to pages. 
 
 Talland v. Wellington (26 Conn. 
 
 578), 220. 
 Tarry v. Ashton (L. R. i Q. B. D. 
 
 314), i6i, 322. 
 Tasker v. Stanley (Mass.) (Jan. 12, 
 
 1891), 384. 
 Tate V. Salmon (79 Ky. 540), 30. 
 Taubman v. Lexington (25 Mo. App. 
 
 218), 232. 
 
 Taylor v. Austin (32 Minn. 247, 20 
 
 N. W. 157), 295. 
 
 V. Constable (40 N. Y. St. R. 
 
 60, 15 N. Y. Supp. 795, 
 
 57 Hun 371), 126, 229, 
 
 233. 427- 
 V. Davis Co. (40 la. 295), 123, 
 
 210, 338. 
 V. Dunn (Tex.) (16 S. W. Rep. 
 
 732), 335- 
 V. Fickas (64 Ind. 167, 31 Am. 
 
 Rep. 114), 270. 
 V. Goodwin (L. R. 4 Q. B. D. 
 
 228), 187. 
 V. Mt. Vernon (34 N- Y. St. 
 
 Rep. 640, 12 N. Y. Supp. 
 
 25, 58 Hun 384), 192, 
 
 362. 
 V. Peckham (8 R. L 349), 82, 
 
 106, 194, 258. 
 V. Woburn (130 Mass. 494), 
 
 134, 150. 
 V. Yonkers (105 N. Y. 202, u 
 
 N. E. 642;, 197, 200, 205, 
 
 206, 207, 388. 
 Teipel v. Hilsendegen (44 Mich. 461), 
 
 432, 472. 
 Tell V. Gibson {(id Cal. 24;'), 524. 
 Tcmpleton v. Montpelier (56 Vt. 328), 
 
 433- 
 V. Voshloe (72 Ind. 134, 
 37 Am. Rep. 139), 
 270. 
 Templin v. Iowa City (14 la. 59), 
 
 270. 
 Terhune v. Mayor, etc. (88 N. Y. 
 
 250). 319- 
 Terre Haute v. Hudnut (112 Ind. 
 
 542), 61. 
 Terre Haute, etc. R. Co. v. Brunker 
 
 (Ind.) (26 N. E. Rep.- 178), 319, 
 
 514. 
 Terre Haute, etc. R. Co. v. Buck (96 
 
 Ind. 346, 49 Am. Rep. 168), 515. 
 Terre Haute, etc. R. Co. v. Clem 
 
 (123 Ind. 15, 23 N. E. 965), 482. 
 Terre Haute, etc. R. Co. v. Voelker 
 
 (129 111. 540, 22 N. E. 20), 466. 
 
 Terry v. New York (8 Bosw. 504), 76, 
 
 317- 
 Texas, etc. Ry. Co. v. Crowder (63 
 
 Tex. 502), 456. 
 Texas, etc. Ry. Co. v. Orr (46 Ark. 
 
 182), 453. 
 Tliayer V.Boston (36 Mass. [19 Pick,] 
 
 511), 27,47, 84, 340. 
 Theall v. Yonkers (N. Y.) (21 Hun 
 
 265), 229. 
 Thiessen v. Bell Plain (la.) (46 N. W. 
 
 Rep. 854), 193. 
 Thomas v. Booneville (61 Mo. 282), 
 
 349- 
 V. Brooklyn (58 la. 438), 
 
 186, 187. 
 V. Railroad Co. (loi U. S. 
 
 7"). 343- ' 
 
 V. Sorrell (Vaughan 330), 
 
 24. 
 V. Winchester (6 N. Y. 397), 
 382. 
 Thompson v. Ouincy (83 Mich. 173, 
 ~ 10 L. R. A. 734), 
 106, 259. 
 V. Stevens (71 Pa. 161), 
 505. 
 Thorogood v. Bryan (8 C. B. 11 J), 
 
 40^, 407. 
 Thrasher v. Postal (48 N. W. Rep. 
 
 600), 233. 
 Threadgill v. Anson County (99 N. C. 
 
 352), 44, 53. 128. 
 Thurber v. Harlem, etc. R. Co. (6a N. 
 
 Y. 327), 419. 
 Thurston v. St. Joseph (51 Mo. 510, 
 
 II Am. Rep. 463), 270, 275, 316. 
 Tice V. Bay City (84 Mich. 461, 47 
 
 N. W. 1062), 185, 259, 366. 
 Tierney V. Troy (N. Y.) (41 Hunizo), 
 
 227. 
 Tiffin V. McCormack (34 Ohio St. 
 
 638), 223. 
 Tilley v. Hudson River R.R. Co. (29 ■ 
 
 N. Y. 252), 536. 
 Tilman v. Tarver (Ryan & M. 141), 
 
 507. 
 Tilton v. Pittsfield (58 N. H. 327), 
 
 134- 
 Tindley v. Salem (137 Mass. 171, I74i 
 
 50 Am. Rep. 289), 43, 51, 57, 63, 
 
 216, 283, 285, 295, 298, 300, 315. 
 Tioga Railroad v. Blossburg, etc, 
 
 Railroad (20 Wall. [U. S.] 137). 
 
 85. 
 Titus v. Northbridge (97 Mass. 258), 
 
 378, 379- 
 
References ~j 
 are to pages, \ 
 
 TABLE OF CASES. 
 
 Ixiii 
 
 Todd V. Chicago (i8 111. App. 565), 
 224, 335- 
 V. City of Troy (61 N. Y. 506), 
 201, 205, 206. 
 Toledo V. Cone (41 Ohio St. 149, 19 
 
 Cent. L. J.), 70, 104, 317. 
 Toledo, W. & W. R. Co. v. Grable 
 
 (88 111. 452), 419. 
 Tolman v. Syracuse, etc. R. Co. (98 
 
 N.Y. 198), 434, 463. 
 Tomlinson v. Derby (43 Conn. 562), 
 
 359. 487- 
 Tompkins v. Oswego (15 N. Y. Supp. 
 , 371). 171,435- 
 Tone V. Mayor, etc. (70 N.Y. 165), 
 
 '319- 
 Topeka v. Tuttle (5 Kas. 311), 103. 
 Tormey v. Mayor (N. Y.) (12 Hun 
 
 542), 44, 317.' 
 Totten V. Phipps (52 N. Y. 354), 
 
 434- 
 Tower v. Rutland (56 Vt. 28), 134. 
 Townsend v. Susquehanna Turnpike 
 
 Co. (N.Y.) (6 Johns. 90), 26. 
 Tozer v. New York Central & H. R. 
 
 R. Co. (105 N. Y. 617, n N. E. 
 
 846), 534. 
 Tracey v. Poughkeepsie (N. Y.) (46 
 
 Hun 569), 201. 
 Trammell v. Russellville (34 Ark. 
 
 105), 42. 
 Transit Co. v. Shacklet (109 111. 232), 
 
 390- 
 Transportation Company v. Chicago 
 
 (99 U. S. 635), 60, 280. 
 Tranter V. Sacramento (61 Cal. 271), 
 
 105. 
 Trapnell v. Red Oak Junction (39 N. 
 
 W. Rep. 884), 358. 
 Trask v. Shotwell (41 Minn. 66, 42 
 
 N. W. 699), 13. 
 Traubman v. Lexington (25 Mo. Aop. 
 
 218), 353. 
 Treadwell v. New York (i Daly 123), 
 
 76, 283, 324. 
 Treise v. St. Paul (36 Minn. 526, iS 
 
 Am. & Eng. C. C. 301, 32 N. W. 
 
 857). 136. 
 Trilz V. Kansas City (84 Mo. 632), 
 
 175, 220, 231. 
 Troxell v. Vinton {JJ la. 90), 427. 
 Tucker v. Axbridge Highway Board 
 
 (5 L. T. R. 218;, 94. 
 Turner v. Buchanan (82 Ind. 147, 42 
 Am. Ren. 485), 382. 
 V. Dartmouth (95 Mass. [13 
 Allen] 291), 270, 298. 
 
 Turner V. Indianapolis (96 Ind. 51, 7 
 Am. & Eng. C. C. 94), 
 231. 
 V. Newburgh (109 N. Y. 301, 
 4 Am. St. Rep. 453, 16 
 N. E. 344), 149, 323, 326, 
 357. 366, 534. 
 Turnpike Co. v. Baldwin (57 Ind. 86), 
 
 434- 
 Tuttle V. Farmington (58 N. H. 13), 
 
 520. 
 Twogood V. New York (102 N. Y. 
 
 216, 6 N. E. 275), 359. 
 Tyler v. Williston (62 Vt. 269), 220, 
 232. 
 
 Underbill v. Manchester (45 N. H. 
 
 214). 41- 
 United States Bank v. Davis (N. Y.) 
 (2 Hill 451), 358. 
 V. Lee (106 U.S. 196), 
 
 30- 
 V. Railroad Co. (17 
 Wall [U. S.J 
 ,, , 322), 85. 
 
 Urquhart v. Ogdensburgh (91 N. Y. 
 67,43 Am. Rep. 655), 
 267. 
 V. Ogdensburgh (97 N. Y. 
 238), 182, 267. 
 
 Van Horn v. Des Moines (63 la. 447, 
 
 19 N. W. 293), 46. 
 Van O'Linda v. Lothrop (38 Mass. 
 
 [21 Pick.] 292), 174. 
 Van Pelt v. Davenport (42 la. 308, 20 
 
 Am. Rep. 622), 270,285. 
 Van Winter v. Henry County (6i la. 
 
 684, 17 N. W. 94), 324. 
 Valparaiso v. Adams (123 Ind. 250), 
 281. 
 V. Donovan (10 L. R. A. 
 
 736), 104. 
 V. Gardner (97 Ind. i), 
 142. 
 Vandenburgh v. Truax (N. Y.) (4 
 
 Denio 464, 47 Am. Dec. 268), 382, 
 
 514. 
 Vandersclice v. Philadelphia (103 Pa. 
 
 102), 302. 
 Varney v. Manchester (58 N. H. 430, 
 
 42 Am. Rep. 592), 178. 
 Vaughan v. Taff Vale Railway Co. 
 
 (5 H. & N. 679), I. 
 Vaughn v. Menlove (32 Eng. C. L. 
 
 613), 382. 
 
Ixiv 
 
 TABLE OF CASES. 
 
 r References 
 \_are to ^dges. 
 
 Veale v. Boston (135 Mass. 187), 133, 
 
 282. 
 Veeder v. Little Falls (100 N. Y. 343, 
 
 3 N. E. 306), 191, 226, 350. 
 Vermillion County v. Chipps (29 N. 
 
 E. Rep. 1066), 234. 
 Vicars v. Wilcocks (2 Smith's Lead. 
 
 Cas. 577), 373- 
 Vicksburg v. Hennessy (54 Miss. 391), 
 
 457- 
 V. McLain (67 Miss. 4, 6 
 So. 774), 282. 
 Vicksburg, etc. Railroad Co. v. Put- 
 nam (118 U. S. 545), 499, 502. 
 Victorian Railways Com'rs v. Coultas 
 
 (L. R. 13 App. Cas. 222), 373, 
 
 514. 
 Vincennes v. Richards (23 Ind. 381), 
 
 285. 
 Vincent v. Brooklyn (N. Y.) (31 Hun 
 
 122), 169, 305. 
 Vogel V. New York (92 N. Y. 10, 44 
 
 Am. Rep. 349), 174, 282, 324, 326. 
 Volkmar v. Railway Co. (58 N. Y. 
 
 Super Ct. 125), 446. 
 Vosper V. New York (49 N. Y. Super. 
 
 Ct. 296), 193, 367, 369. 
 Vroman v. Rogers (5 N. Y. Supp. 
 
 426), 74. 
 
 Wabash County v. Pearson (120 Ind. 
 
 426, 29 Am. & Eng. C. C. 472, 22 
 
 N. E. 134), 218, 233, 537. 
 Wabash Ry. Co. v. Elliott (98 111. 481), 
 
 424. 
 Wabash R. Co. v. McDaniels (107 U. 
 
 S. 454). 8. 
 Wabash, etc. Ry. Co. v. ShackIet(io5 
 
 111. 364), 390. 
 Wade V. Leroy (20 How [U. S.] 34), 
 
 499. 502. 530- 
 Wadleigh v. Mt. Vernon (75 Me. 79), 
 
 245. 
 Wagner v. Camden (73 Me. 485), 245. 
 V. Jackson Tp. (133 Pa. 61, 
 19 Atl. 312), 383. 
 Wahoo V. Reeder (27 Neb. 770, 43 
 
 N. W. 1 145), 104, 154. 
 Waite V. Railway Co. (El. Bl. & El. 
 
 719). 416. 
 Wakefield v. Newell (12 R. I. 75, 34 
 Am. Rep. 598), 60. 
 V. Newport (60 N. H. Rep. 
 374). 338. 
 Wakelin v. London & South Western 
 Ry. Co. (L. R. 12 App. Cas. 41), 
 450. 455- 
 
 Wakeman v. St. Clair (51 N. W. Rep. 
 
 696), 442. 
 Walcott V. Swampscott (83 Mass. [i 
 
 Allen] loi), 298, 314. 
 Waldron v. Haverhill (143 Mass. 582, 
 
 10 N. E. 481), 216, 283, 298. 
 Walker v. Decatur County (67 la, 
 307, 25 N. 'W. 256), 
 
 434- 
 V. Erie R. Co. (N. Y.) (63 
 
 Barb. 260), 530. 
 V. Kansas City (99 Mo. 647, 
 29 Am. & Eng. C. C. 
 483, 12 S. W. 894), 
 220, 231. 
 V. Lessee of Devlin (2 Ohio 
 
 St. 605), 519. 
 V. Reidsville (96 N. C. 382), 
 428. 
 Wall V. Highland (72 Wis. 435, 39 N. 
 
 W. 560), 154. 
 Waller v. Dubuque (69 la. 541, 29 N. 
 W. 456), 328. 
 V. M. G. W. Railway Co. (12 
 Ir. L. T. 145), 395- 
 Walling V. Shreveport (5 La. Ann. 
 
 6(')0), 27. 
 Walrath v. Redfield (18 N. Y. 457), 
 
 527. 
 Walsh v. New York (107 N. Y. 220, 
 13 N. E. 911), 230, 318. 
 v. Trustees, etc. (96 N. Y. 
 
 427). 317- 
 Walters v. Chicago, etc. R. Co. (41 
 
 la. 78), 419. 
 Waltham v. Kemper (55 111. 346, 8 
 
 Am. Rep. 652), 127. 
 Wanamaker v. Rochester (17 N. Y. 
 
 Supp. 321), 333. 
 Ward V. M. & St. P. R. Co. (29 Wis. 
 144). 402. 
 V. Newark, etc. Turnpike Co. 
 
 (N. J.) (Spenc. 323), 26. 
 V. North Haven (43 Conn. 148), 
 
 160, 220, 231, 382, 398. 
 V. Vanderbilt (4 Abb. Ct. of 
 App. Dec. 521), 395. 
 Warner v. Holyoke (112 Mass. 362), 
 
 15°. 157. 159. 160. 
 Warren v. Clement (N. Y.) (24 Hun 
 
 472), 126. 
 Warsaw v. Dunlap (112 Ind. 576, 5 
 
 W. Rep. 361), 180. 
 Wash. Mut. Ins. Co. v. Reed (20 Ohio 
 
 202), 519. 
 Washburn, etc. Mfg. Co. v. Wor- 
 cester (116 Mass. 458), 273, 295. 
 
are to pages. \ 
 
 TABLE OF CASES. 
 
 Ixv 
 
 Washer v. Bullitt County (iio U. S. 
 
 5S8), 223. 
 Washington, etc. Railroad v. Mc- 
 
 Dade (135 U. S. 554), 442. 
 Washington v. Small (86 Ind. 462), 
 
 186. 
 Waters v. Bay View (61 Wis. 642, 21 
 
 N. W. 811), 271,280. 
 Watson V. Kingston (i 14 N. Y, 88, 28 
 Am. & Eng. C. C. 233, 
 21 N. E. 102), 280. 
 V. Tripp (II R. I. 98, 23 Am. 
 Rep. 420), 227. 
 Wayne v. Patterson (29 N. E. Rep. 
 
 167), 362. 
 Weare v. Fitchburg (no Mass. 334), 
 
 175. 429. 
 Webb V. Rome, etc. R. Co. (49 N. Y. 
 
 420), 382. 
 Weber v. Creston City (75 la. 16, 8 L. 
 
 R. A. 778, 39 N. W. 126), 353, 
 
 367- 
 Webster v. Hudson River R. Co. (30 
 
 N. Y. 260), 390. 
 Weed V. Ballston Spa (76 N. Y. 329), 
 
 137. 139. 359. 427. 
 V. Greenwich (45 Conn. 170), 
 272, 285. 
 Weeks v. Lyndon (54 Vt. 638), 435. 
 Weet V. Brockport (16 N. Y. 161), 
 
 loi, 109, 161, 231. 
 Wegmann v. Jefferson (61 Mo. 55), 
 
 273- 
 Wehn V. Gage Co. (5 Neb. 494), 53. 
 Weightman v. Washingfton (i Black. 
 
 [U. S.] 39), 84, 88, 100. 
 Weil V. Dry Dock, etc. Railroad Co. 
 
 (119 N. Y. 147, 23 N. E. 487), 
 
 409. 
 Weis V. Madison (75 Ind. 241, 39 Am. 
 
 Rep. 135), 270, 271, 276. 
 Weisenberg v. Appleton (26 Wis. 56), 
 
 357. 364. 
 V. Winneconne (56 Wis. 
 667, 14 N. W. 871), 
 219, 230, 262. 
 Weiss V. Jones Co. (80 la. 351, 45 N. 
 W. 883, 29 Am. «& Eng. 
 C. C. 470), 193. 214. 
 V. Pennsylvania R. Co. (79 Pa. 
 
 387). 459- 
 Weiting v. Town of Millston (46 N. 
 
 W. Rep. 879), 516. 
 Welch V. Portland (77 Me. 384), 
 245. 
 V. Wesson (72 Mass. [6 Gray] 
 505). 439- 
 
 Weld V. Proprietors of Side Booms 
 
 (6 Me. 93), 26. 
 Welter v. Burlington (60 Vt. 28), 162. 
 V. McCormick (53 N. J. L. 
 470), 310. 
 Wellington v. Gregson (31 Kas. 99, i 
 Pac. 253), 145. 
 V. Wilson (14 U. C. C. P. 
 
 304). 92. 
 
 Wells V. Stomback (59 la. 376), 133. 
 
 Welsh V. Rutland (56 Vt. 228, 48 Am. 
 
 • Rep. 762), 43, 45, 46, 69, 
 
 106, 276, 309. 
 
 V. St. Louis (73 Mo. 71), 154, 
 
 324. 353. 
 V. Wilson (loi N. Y. 254, 4 N. 
 E. 633), 180. 
 Welter v. St. Paul (40 Minn. 460, 1 2 
 Am. St. Rep. 754, 42 N. W. 392), 
 103, 285,-295. 
 Wendell v. Troy (N. Y.) (39 Barb. 
 
 335). 295- 
 Wentworth v. JefiFerson (60 N. H. 
 
 158), 437- 
 Werth v. Springfield (78 Mo. 107), 
 
 281. 
 Wessman v. Brooklyn (40 N. Y. St. 
 
 Rep. 698, 16 N. Y. Supp. 97), 295. 
 West v. Lynn (no Mass. 514), 193, 
 
 194. 
 West Bend v. Munch (52 la. 132), 
 
 123. 
 West Mahoney v. Watson (U2 Pa. 
 
 574, 3 Atl. 866), 382. 
 West Orange v. Field (37 N. J. Eq. 
 
 600, 2 Am. & Eng. C. C. 629), 
 
 215. 
 Westbrook v. Mobile, etc. R. Co. (66 
 
 Miss. 560, 14 Am. St. Rep. 587, 6 
 
 So. 321), 8, 420. 
 Western, etc. College v. Cleveland (12 
 
 Ohio 375). 42, 63. 
 Western Railroad Co. v. Atalanta (74 
 Ga. 744), 
 
 335- 
 V. Young (83 
 Ga. 512, 
 10 S. E. 
 197), 8. 
 Western Sav. Fund So. v. Philadel- 
 phia (31 Pa. 175), 75, 77, 84. 
 Westfield v. Mayo (122 Mass. 100, 23 
 
 Am. Rep. 292), 335. 
 Wetson V. Tarpley (18 How. [U. S.] 
 
 517), 109. 
 Weymouth v. New Orleans (40 La. 
 Ann. 344), 77. 
 
ixvi 
 
 TABLE OF CASES, 
 
 [References 
 are to pages.. 
 
 Wheatley v. Mercer (Ky.) (9 Bush. 
 
 704), 128, 
 Wheaton v. Hadley (131 111. 640, 23 
 
 N. E. 422), 182, 353, 362. 
 Wheeler V.Cincinnati (igOhioSt. 19, 
 2 Am. Rep. 368), 46, 
 
 63- 
 
 V. Plymouth (116 Ind. 158, 
 
 9 Am. St. Rep. 837^ 18 
 
 N. W. 532), 42,61,167. 
 
 V. Troy (20 N. H. 77), 106, 
 
 248, 524. * 
 
 V. Worcester (92 Mass. [10 
 Allen] 591), 83, 286. 
 Whipple V. Walpole (10 N. H. 130), 
 
 249. 
 Whirley v. Whiteman (Tenn.) (i 
 
 Head. 619), 419. 
 Whitall V, P'reeholders of Gloucester 
 
 (40 N. J. L. 302), 210. 
 White V. Chowan County (90 N. C. 
 437). 128. 
 V. City Council (2 Hill 575), 
 
 120. 
 V. Hindley Local Board (L. R. 
 
 10 Q. B. 219), 95. 
 V. Miller (78 N. Y. 393), 526. 
 V. Phillipston (51 Mass. [10 
 
 Met.] 108), 82, 298. 
 V. Stowe (54 Vt. 510), 250. 
 V. SuUivan County (Ind.) (45 
 
 Alb. L.J. 35), 51. 
 V. Vassalborough (82 Me. 67), 
 
 245. 
 V. Yazoo City (27 Miss. 357), 
 60. 
 Whitefield v. Le Despencer (Cowp. 
 
 754). 290- 
 Whitehouse v. Fellows (10 C. B. [N. 
 
 S.] 779), 291. 
 White Lead Co. v. Rochester (3 N. Y. 
 
 463), 215. 
 Whitelock v. Baker (13 Ves. 5x4), 
 
 507. 
 Whitfield V. Meridian (66 Miss. 570, 
 
 4 L. R. A. 824, 14 Am. St. Rep. 
 
 596, 6 So. 244), 103, 140, 355, 
 
 359. 
 Whitford V. Southbridge (119 Mass. 
 
 564). 434- 
 Wliitney v. Essex (42 Vt. 520), 146. 
 V. Hitchcock (N. Y.) (4 Den. 
 
 461), 533- 
 V. Lowell (151 Mass. 212, 24 
 
 N. E. 47), 365. 
 V. Milwaukee (57 Wis. 39, 
 16 N. W. 12). 186, 262. 
 
 Whitney v. Port Huron (50 N. W. 
 
 Rep. 316), 261, 
 
 V. Ticonderoga (127 N. Y. 
 
 40, 27 N. E. Rep. 403), 
 
 153, 264. 
 
 Whitsett V, Chicago, etc. R.R. Co. 
 
 (671a. ISO), 473- 
 Wicks V. DeWitt (54 la. 130), 60. 
 Wilcox V. Chicago (107 111. 334, 47 
 Am. Rep. 434), 40, 46. 
 V. Plummer (4 Pet. [U. S.] 
 172), 528. 
 Wild V. Paterson (47 N. J. L. 406, i 
 
 Atl. 490), 46, 106, 117, 308. 
 Wilde V. New Orleans (12 La. Ann. 
 IS). 27. 
 
 Wilkins v. Rutland (6i Vt. 338), 76, 
 
 106, isi, IS4. 2SO. 
 Wilkinson v. Mosley (30 Ala. 562), 
 
 505- 
 Willard v. Sherburne (8 Atl. Rep. 
 
 73S). 2SO. 
 Willey V. Belfast (61 Me. 575), 377, 
 
 398. 
 V. Ellsworth (64 Me. 57), 246. 
 V. Portsmouth (3s N. H. 304), 
 147. 
 Williams v. Gardiner (s8 Hun 508), 
 411. 
 V. Grand Rapids (59 Mich. 
 51, 26 N. W. 279), 49, 
 106, 261. 
 V. Great Western Railway 
 Co. (L. R.gExch. 157), 
 
 375- 
 
 V.Lawrence (113 Mass. 
 S06), 204. 
 
 V. Stillwell (88 Ala. 332, 6 
 So. 914), 126, 335. 
 
 V. Swansea Harbor Trus- 
 tees (14 C. B. N. S. 
 
 845). 73- 
 V. Vanderbilt (28 N. Y. 
 
 217). 395- 
 Williamson v. Barrett (13 How. [U. 
 
 S.] loi), 401. 
 Willimantic Iron Biidge Co. v. Hatch 
 
 (125 U. S. i), 212. 
 Wilson V. Atlanta (60 Ga. 473), 191, 
 383. 
 V, Charlestown (90 Mass. [8 
 
 Allen] 137), 431. 
 V. Jefferson County (13 la. 
 
 181), 123. 
 V. Granby (47 Conn. S9. 3^ 
 Am. Rep. 51), 218, 233, 
 252. 
 
References ~| 
 are to pages, J 
 
 TABLE OF CASES. 
 
 Ixvii 
 
 V/ilson V. Louisville, etc. R. Co. (85 
 
 Ala. 269), 466. 
 V. New Bedford (108 Mass. 
 
 261, II Am. Rep. 352), 
 
 75. 270. 
 V, New York (i Den. 595, 43 
 
 Am. Dec. 719), 295. 
 V. Spafford (32 N. Y. St. Rep. 
 
 532), 151- 
 V. Troy (38 N. Y. St, Rep, 382, 
 
 14 N. Y. £upp. 721, 60 
 
 Hun 183), 154, 155, 
 
 523- 
 V. Watertown (N. Y.) (3 Hun 
 
 508), 227. 
 V. Wheeling (19 W, Va. 323), 
 
 104, 134,324,493. 
 V. White (71 Ga. 506, 51 Am, 
 Rep. 269), 149, 164, 
 Wiltse V. Tilden (77 Wis. 152), 106. 
 Winbigler v. Los Angeles (45 Cal. 
 
 36), 83, IDS, 295, 313. 
 Winch V. Conservators, etc. (L. R. 7 
 
 C. P. 458), 119. 
 Winn V. Lowell (83 Mass. 177), 426. 
 V. Rutland (,52 Vt. 481), 106, 
 300. 
 Winne v. Albany (15 N. Y. Supp. 
 
 423, 39 N. Y. St. Rep. 602), 198. 
 Winpenny v. Philadelphia (65 Pa. 
 
 135). 72. 
 Winship v. Enfield (42 N. H. 197), 
 
 160, 249, 381, 388. 
 Winters v. Kansas City, etc. Ry. Co. 
 
 (99 Mo. 509, 17 Am. St. Rep. 591), 
 
 420. 
 Witham v. Portland (72 Me. 359), 
 
 IS5. 185, 189, 466. 
 Wiwiroski v. Lake Sh6re, etc. R. Co. 
 
 (124 N. Y. 420), 463. 
 Wixon V. Newport (13 R. L 454, 43 
 
 Am. Rep. 35), 58, 106, 258, 282, 
 
 304. 
 Wolfe V. Tel. & Tel. Co. (33 Fed. 
 
 Rep. 320), 151, 
 Wood V, Bridgeport (Pa.) 48 Leg. Int. 
 500, 22 Atl. Rep. 752), 
 425. 
 V. Erie Railway Co. (72 N. Y. 
 196, 28 Am. Rep. 125), 
 440. 
 V. Groton (i 1 1 Mass. 357), 
 
 159- 
 V. Mears (12 Ind. 515, 74 
 Am. Dec. 222), 175. 
 Woodbridge v, Detroit (8 Mich. 274), 
 207, 
 
 Woodbury v, Dist. of Columbia (5 
 
 Mackey 127), 362. 
 
 V. Ovvosso (69 Mich. 479, 
 
 37 N. W. 547), 218. 
 
 Woodcock V, Calais (66 Me. 234), 285, 
 
 315. 3'6. 339- 
 V. Worcester (138 Mass. 
 268), 199. 
 Woodman v. Nottingham (49 N. H. 
 
 387). 231. 
 Woodruff V. Stewart (63 Ala. 206, 
 
 212), 130, 
 Woods V. Colfax County Com, (10 
 Neb, 552, 23 Alb. L. J. 
 14). 128. 
 V. Tipton County (Ind.) (27 
 N. E. Rep. 611), 435. 
 Woolsey V. Ellenville (39 N. Y. St. 
 Rep. 744, 14 N. Y. Supp. 180), 206. 
 Worden v. New Bedford (131 Mass. 
 
 23, 41 Am, Rep. 185), 57, 69, 304. 
 Wright V, Detroit, etc. Railway Co. 
 77 Mich.' 123, 43 N. W. 
 765), 8. 
 V. Fort Howard (60 Wis. 119, 
 
 18 N. W. 750), 505. 
 V. Holbrook (52 N. H. 120), 
 
 106. 
 V. Templeton (132 Mass. 49), 
 
 161, 379. 441- 
 V. Wilmington (92 N. C. 156), 
 285, 
 Wunderlich v. New York (33 Fed. 
 
 Rep. 854), 175. 
 Wyandotte v. Gibson (25 Kas. 236), 
 145, 276, 282. 
 V. White (13 Kas. 191), 
 103. 
 Wymore v. Mahaska County (78 la. 
 396, 16 Am. St. Rep. 449, 29 Am. 
 & Eng. C. C. 480, 43 N. W. 264), 
 418, 422. 
 
 Yarborough v. Bank of England (16 
 
 East. 6), 21. 
 Yates V. State (128 N. Y. 221), 77. 
 Yeager v. Tippecanoe Tp. (81 Ind. 
 
 46), 233. 258. 
 Yeaw V. Williams (15 R. I. 20, 23 
 
 Atl. 35), 150. 
 Yocum V. Trenton (20 Mo. App. 489), 
 
 365- 
 Yordy v. Marshall Co. (la.) (45 N. 
 
 W. Rep. 1042, 29 Am. & Eng. C. 
 
 C. 467). 218. 
 York V. Spellman (19 Neb. 357), 
 
 187. 
 
Ixviii 
 
 TABLE OF CASES. 
 
 [Reference! 
 are to pages. . 
 
 Young V. Charleston (20 S. C. 116, 
 
 47 Am. Rep. 827), 106, 
 
 120. 
 V. Commissioners (S. C.) (2 
 
 Nott. & McC. 537), 88, 
 
 106, 120. 
 V. Davis (7 H. & N. 760, 2 H. 
 
 & C. 197), 93. 
 V. Dist. of Col. (3 McAr. 137), 
 
 191. 
 V. New Haven (39 Conn. 435), 
 
 161, 162, 252. 
 
 Young V. Waterville (39 Minn, 196, 
 
 39 N. W. 97), 103, 130. 
 Young Tp. V. Sutter (18 Atl. Rep. 
 
 610), 151. 
 
 Zanger v. Detroit (49 N. W. Rep. 
 
 879). 393- 
 Zettler v. Atlanta (66 Ga. 195), 143^ 
 
 160. 
 Zimmerman v. Conemaugh Tp. (2 
 
 Cent. Rep. 361), 233. 
 
THE NEGLIGENCE 
 
 OF 
 
 MUNICIPAL CORPORATIONS. 
 
 CHAPTER I. 
 
 INTRODUCTORY PRINCIPLES OF THE LAW OF NEGLIGENCE. 
 
 § I. What is negligence. 
 
 2. Three distinct features of definition. 
 
 3. Nature of the duty to exercise care. 
 
 4. Measure of care to be exercised. 
 
 5. Importance of regarding the circumstances. 
 
 6. Distinctions between degrees of negligence. 
 
 7. Failure to exercise reasonable care is breach of duty. 
 
 8. Damage to whom the duty is owing. 
 
 9. Damage must be justly attributable to breach of duty. 
 10. Contributory negligence. 
 
 § I. What is negligence. — Negligence has been briefly 
 described as "the absence of care, according to the cir- 
 cumstances." ^ And this definition possesses great value, for 
 it fixes attention upon the vital feature of the subject 
 and directs investigation toward the character and extent 
 of the obligation to exercise care. It was, however, evi- 
 
 ' Willes, J., in Vaughan v. Taff Treatise on Negligence, page 10 
 Vale Railway Co., 5 H. & N. 679, at (London, 1889). It is also frequent- 
 p. 688 (i860). This definition is sub- ly quoted in the cases, 
 stantially adopted by Beven in his 
 1 
 
PRINCIPLES OF THE LAW OF NEGLIGENCE. 
 
 dently not designed to fully define actionable negligence, 
 and for a description of that we must look elsewhere. 
 But, although many definitions have been formulated,' it 
 
 > Sherman & Redfield, in their 
 Treatise on Negligence, say, 4th ed., 
 § I : "In attempting to add a definition 
 of our own to the number which have 
 already been submitted by judges and 
 scholars, we do not hope to cover all 
 the ground, but seek only to add one 
 more to the list of imperfect defini- 
 tions, from which eventually some- 
 thing more complete may be develop- 
 ed," and they propose the following : 
 
 "Negligence, constituting a cause 
 of civil action, is such an omission by 
 a responsible person to use that de- 
 gree of care, diligence, and skill 
 which it was his legal duty to use for 
 the protection of another person from 
 injury, as, in a natural and continuous 
 sequence, causes unintended damage 
 to the latter " (§ 3). 
 
 Wharton, after considering various 
 definitions unsatisfactory to him, 
 says : " Negligence, in its civil rela- 
 tions, is such an inadvertent imper- 
 fection by a responsible human agent 
 in the discharge of a legal duty as im- 
 mediately produces, in an ordinary 
 and natural sequence, a damage to an- 
 other." Wharton on Negligence, § 3. 
 
 Smith says : " Negligence in law is 
 a breach of duty unintentional and 
 proximately producing injury to an- 
 other possessing equal rights." And 
 he considers in detail the various ele- 
 ments of his definition. Whittaker's 
 Smith on Negligence, p. i. 
 
 Cooley says that negligence is 
 " The failure to observe for the pro- 
 tection of the interests of another per- 
 son that degree of care, precaution, 
 and vigilance which the circum- 
 stances justly demand whereby such 
 other person suffers injury." Cooley 
 on Torts, p. 630. 
 
 Alderson, B., in BIyth v. Birming- 
 ham Waterworks Co., 1 1 Exch. 781, 
 at p. 784 (1856), described negligence 
 as " The omission to do something 
 which a reasonable man, guided upon 
 those considerations which ordinarily 
 regulate the conduct of human affairs, 
 would do, or doing something which 
 a prudent and reasonable man would 
 not do." See also Pollock on Torts 
 
 (1887). 355. 
 
 Brett, M. R., in Heaven v. Pender, 
 L. R. II Q. B. D. 503, at p. 507 
 (1883), says : " Actionable negligence 
 consists in the neglect of the use of 
 ordinary care or skill toward a per- 
 son to whom the defendant owes the 
 duty of observing ordinary care and 
 skill, by which neglect the plaintiff, 
 without contributory negligence on 
 his part, has suffered injury to his 
 person or property." 
 
 A full statement of many defini- 
 tions and numerous references to 
 cases where the subject has been dis- 
 cussed will be found in Vol. XVI. of 
 the American and English Encyclo- 
 pasdia of Law under the title, Negli- 
 gence (1891). A definition is also 
 there given which is " believed to be 
 correct, inclusive and exhaustive," 
 and which is as follows, page 391 ; 
 "Actionable negligence is the inad- 
 vertent failure of a legally responsible 
 person to use ordinary care under the 
 circumstances in observing or per- 
 forming a non-contractual duty, im- 
 plied by law, which failure is the 
 proximate cause of injury to a person 
 to whom the duty is due." 
 
 The several features of this defini- 
 tion are fully discussed in the work 
 from which it is quoted. 
 
§ 2 PRINCIPLES OF THE LAW OF NEGLIGENCE. 3 
 
 has been recently remarked " that no one of them has 
 proved satisfactory to the framer of any other." ^ In view 
 of this lack of agreement it seems advisable to present 
 another definition for the double purpose of perhaps aid- 
 ing in the formation of the true one, and also of estab- 
 lishing the groundwork upon which the principles set 
 forth in this book are founded. Following, therefore, 
 the central idea of the brief definition above quoted, it is 
 submitted that actionable negligence is : 
 
 A breach of the duty to exercise care, by which one 
 to whom the duty is owing suffers damage justly attrib- 
 utable to the breach of duty. 
 
 § 2. Three distinctive features of definition. — The spe- 
 cial character of this work precludes any full analysis or 
 defense of the various features of this definition, but a 
 brief reference to them is necessary to show that the gen- 
 eral principles which underlie the doctrine of negligence, 
 and which will be frequently referred to hereafter, are 
 fairly within its terms. Such a reference will also be 
 beneficial in recalling the character of the duty to exer- 
 cise care and the considerations which must always con- 
 trol the decisions of the diverse cases arising with reference 
 to the negligence of municipal corporations. 
 
 The essential features of actionable negligence, as de- 
 fined in the preceding section, are : 
 
 (i) A breach of the duty to exercise care; (2) damage 
 to the one to whom the duty is owing ; (3) a causal con- 
 nection between the breach of duty and the damage that 
 makes the one justly responsible for the other.* 
 
 ' Sherman & Redfield on Negli- " (3) The absence of distinct inten- 
 
 gence, vol. i., p. 2 (1888). tion to produce the precise damage, 
 
 ' Sherman & Redfield say, vol. i., if any, which actually follows, 
 p. 4 : ... With this negligence, in order to 
 
 " Negligence consists in — sustain a civil action, there must con- 
 
 " (i) A legal duty to use care ; cur — 
 
 " (2) A breach of that duty ; ".(i) Damage to the plaintiff; 
 
PRINCIPLES OF THE LAW OF NEGLIGENCE. 
 
 § 3. Nature of the duty to exercise care. — The legal duty 
 to exercise care has its foundation in the requirements of 
 civilized society. It is essential for the existence of social 
 order that every individual shall be protected from the 
 thoughtless wrongs of others as well as from their willful 
 misdeeds, and that each person shall answer for injuries 
 produced by his own carelessness and by that of his ser- 
 vants.^ Without this protection there would be no secur- 
 ity in daily life, and the right of personal safety would be 
 infringed.^ The Roman law recognized the duty of a 
 
 " (2) A natural and continuous se- 
 quence uninterruptedly connecting 
 the breach of duty with the damage 
 as cause and effect." 
 
 This analysis is accepted by Be- 
 ven, Negligence, p. 9. 
 
 It would seem that subdivision i in 
 the text includes I, 2, and 3 in the 
 analysis just given, for there cannot 
 be a breach of the duty to exercise 
 care unless the duty exists, and if the 
 duty violated is simply the duty to ex- 
 ercise care, no question arises as to 
 intention. Infra, % 3. 
 
 ' Pollock, in his work on the Law 
 of Torts (1887), in a note on page 67, 
 says : " M. Sainctelette, the latest 
 Continental writer on the subject, 
 well says : ' La responsabilit^ du fait 
 d'autrui n'est pas une fiction inven- 
 tde par la loi positive. C'est une exi- 
 gence de I'ordre social ' : De la re- 
 sponsabilitfi et de la Garantie, p. 
 124." 
 
 '' " ' Neminem lasdare ' is one of the 
 ' praecepta juris ' in I. I. i, § 3." The 
 Lex Aquilia Grueber (1886), p. 209, 
 n. 2. 
 
 " A man has a right that his per- 
 sonal safety shall not be infringed by 
 the negligent exercise on the part of 
 others of their own rights, or rather of 
 what might appear to be their own 
 rights ; as when a person allows his 
 
 house to be in such bad repair that it 
 falls on a passer-by, or allows the ex- 
 istence of latent dangerous places in 
 his house or land whereby damage is 
 sustained by persons having lawful 
 business there." Holland's Jurispru^ 
 dence, p. 129. 
 
 " The infringer or violator of right 
 would be laid under obligation to 
 give compensation for the damage 
 which his illegitimate act had wrong- 
 fully inflicted. 
 
 "Jural relations of this kind in- 
 crease in importance as human 
 wants become more varied and re- 
 fined and the more widely the range 
 of personal freedom extends. Obli- 
 gations will thus arise the more fre- 
 quently that the need of the powers 
 of others is realized and the more 
 rarely that these powers can be com- 
 manded by a control of other per- 
 sons." Outlines of Jurisprudence, 
 Puchta, translated by Hastie, Edin- 
 burgh, 1887, page 74. 
 
 " Culpa is exactly what we mean 
 by ' negligence,' the falling short of 
 that care and circumspection which 
 is due from one man to another." 
 Pollock on Torts, p. 17. 
 
 " Culpa, as ground of the obligation 
 to make amends for damage, comes 
 into account only — 
 
 "(i) In respect of indirect damage 
 
§3 
 
 PRINCIPLES OF THE LAW OF NEGLIGENCE. 
 
 citizen, " alterum non Iczdare" and appreciated the sig- 
 nificance of the obligation requiring the exercise of care. 
 But the necessity of the enforcement of this duty and its 
 wide applicability to the affairs of life have only been 
 made manifest by the advance of modern civilization. 
 And it is probable that the duty will be more universally 
 enforced and more watchfully performed than it is at 
 present. Even now, however, whether this duty springs 
 from the ordinary relations of life or from contract or stat- 
 ute obligations, its requirements are alike imperative.^ 
 And the law in effect tells every member of society 
 that he must conform his conduct, so far as it affects his 
 
 to property by the wrong-doer, which 
 engenders an independent obligatio 
 ex delicto (damnum injuria datum ex 
 1. Aquilia) — the so-called 'Aquilian 
 culpa.' It here consists in illegal 
 positive action (culpa in faciendo), 
 which already exhibits itself as the 
 violation of the general duty of citi- 
 zens, ' alterum non laedare.' 
 
 " (2) In obligatory relations, in 
 which some one violates the special 
 positive duty incumbent upon him to 
 take some course of action on behalf 
 of another or to avert damage (dili- 
 gentia, custodia). Here the culpa 
 may consist not merely in positive 
 action, but also in forbearance (' cul- 
 pa in non faciendo,' so called ' extra 
 Aquilian culpa')." Salkowski Ro- 
 man Law, translated by Whitfield, 
 1886, pp. 515, 516. 
 
 " Culpa (in the narrower sense of 
 the word) is possible under two cir- 
 cumstances (Conf. Hasse, Culpa, p. 
 126, M.) : it may be the negligent (as 
 distinguished from the willful) infrac- 
 tion of a general duty, or it may be 
 the negligent violation of a contract- 
 ual obligation. Culpa, in the first 
 sense (Aquilian culpa), consists in the 
 doing of an unlawful act, or in an 
 
 omission connected with an unlawful 
 act ; in the second sense it is always 
 an omission. Contractual culpa is 
 always a want of diligentia." Schus- 
 ter on "The Liabilities of Bailees 
 according to German Law," Law 
 Quarterly Review, vol. ii., p. 188 
 (1886). See also Mackeldey's Ro- 
 man Law, Dropsie (1883); Camp- 
 bell on Negligence, § 2. 
 
 ' " The whole modern law of neg- 
 ligence, with its many developments, 
 enforces the duty of fellow-citizens to 
 observe in varying circumstances an 
 appropriate measure of prudence to 
 avoid causing harm to one another. 
 The situations in which we are under 
 no such duty appear at this day, not 
 as normal, but as exceptional. A 
 man cannot keep shop or walk into 
 the street without being entitled to 
 expect and bound to practice observ- 
 ance in this kind, as we shall more 
 fully see hereafter." Pollock on 
 Torts, pp. 22, 355. 
 
 Sherman & Redfield on Negli- 
 gence, §13; Campbell on Negli- 
 gence, §12; Osborne v. McMasters, 
 40 Minn. 103, 12 Am. St. R. 698, 
 note. 
 
6 PRINCIPLES OF THE LAW OF NEGLIGENCE. § 3 
 
 fellow-men, to a certain standard of carefulness, and that 
 jf he fails to reach that standard, he must answer for his 
 failure. The duty, moreover, is quite distinct from other 
 obligations, and the law of negligence finds its proper 
 limitations within the boundaries of the duty itself.^ 
 
 In order to exclude intentional wrongs from the subject 
 of negligence, many writers have described negligence as 
 an " unintentional breach of duty." But this is unsatis- 
 factory, for the reason that there may be an intentional 
 breach of the duty to exercise care without any intent to 
 work an injury ; and where there is such a breach of duty 
 and damage results from it, a clear case of negligence 
 arises. This may be illustrated by the case of a master 
 who knows that machinery operated by his servants is out 
 of repair. He has no wish or purpose of injuring his 
 employee ; on the contrary, his interests are all united in 
 the hope that there will be no break and no injury. He, 
 however, assumes the risk willfully, and damage to his 
 servant ensues. This is clearly an intentional breach of 
 his duty to repair ; but the injury results from his care- 
 lessness, and not from his intention to damage.^ 
 
 If, then, there is a breach of the duty to exercise care, 
 whether it be intentional or unintentional, the foundation 
 of an action for negligence is laid ; but if with the failure 
 to exercise care there is present the intent to produce 
 
 ' See the Classification of Torts, by to be iio/us ; but When the intention 
 
 Polloclc, p. 7; Sherman, & Redfield has not been directed to the illegal 
 
 on Negligence, § 9. consequences, whilst yet these might 
 
 ' " The objective presumption of a have been foreseen on the part of the 
 delict is the commission of a legal wrong-doer, the wrong perpetrated is 
 wrong ; the subjective presumption is designated cu/pa. 
 the intentional guilty violation of a " The standard to measure the con- 
 lawful right, which is cu/pa in its most duct of a person acting is that of a 
 extended signification. When the in- bonus paterfamilias placed in similar 
 tention of the wrong-doer has been circumstances." Tomkins & Jenkens, 
 directed towards the producing of the Modern Roman Law, 1870, p. 328; 
 wrongful and illegal act, there is said Salkowski's Roman Law, p. 517. 
 
§ 4 PRINCIPLES OF THE LAW OF NEGLIGENCE. 7 
 
 injury, another quite different duty is violated. For where 
 there is intention to damage, it is thoughtfulness, and not 
 carelessness, that the law must punish.^ 
 
 § 4. Measure of care to be exercised. — The test which 
 the law adopts in order to determine whether men have 
 exercised proper care not to injure others is, however, 
 not fanciful or arbitrary. It is, on the other hand, estab- 
 lished by reason, and derived from an examination of the 
 powers, the habits, the actions and surroundings of men. 
 The law observes that the conduct of men is founded in 
 reason, and holds every man bound to exercise his own 
 rights with a reasonable regard for the rights of others ; 
 and provides that no one shall, while so exercising his 
 rights, omit any precaution for the protection of the 
 person and property of his fellows, which, considering all 
 the circumstances of the case, it is reasonable to require 
 from him. It gives to each person the privilege of pros- 
 ecuting his own affairs in reliance upon the assumption 
 that every man must conform his actions to the one 
 guide. This principle has been widely enforced by the 
 courts, and the measure of care required has been in the 
 past most frequently described as " ordinary care." But 
 it is also, and more accurately, referred to as " reasonable 
 care." ^ Indeed this latter phrase alone describes the char- 
 acter of the care that must be exercised by individuals 
 and corporations alike in all their various occupations. 
 
 ' Consult Wharton on Neg., § 3; Castro, etc. Sugar Refining Co., 125 
 
 Sherman & Redfield on Neg., §§ 5, 6, N. Y. 50 (1890) ; Larkin v. O'Neill, 
 
 7 ; Am. & Eng. Encyc. of Law, vol. 119N.Y. 221 (1890) ; Bennett v. Rail- 
 
 xvi., pp. 392-396; Whittaker's Smith road Co., 102 U. S. 577 (1880); Ri- 
 
 on Negligence, p. 3. denhour v. Kansas City Cable R. Co., 
 
 ' See Lancaster Canal Co. v. Parn- 102 Mo. 283, 14 S. W. Rep. 760 
 
 aby, 1 1 Ad. & El. 233 (1839) ; Heaven (1890) ; Carver v. Detroit, etc. Rail- 
 
 V. Pender, L. R. 11 Q. B. D. 503 road Co., 69 Mich. 616, 25 N. W^. 
 
 (1883); Mersey Docks v. Gibbs, 11 Rep. 183(1888). 
 H. L. Cas. 686 (1866) ; Kern v. De 
 
8 
 
 PRINCIPLES OF THE LAW OF NEGLIGENCE. 
 
 §5 
 
 The care required from carriers, as has been shown, is 
 not ordinary care.^ But it is accurately described as rea- 
 sonable care for considering the circumstances surround- 
 ing the operation of railways, and particularly the absolute 
 dependence of the passengers upon the care of the man- 
 agers and the serious consequences that ordinarily follow 
 an accident — it is but reasonable that a corporation 
 operating a railway should use exceptional care.^ So the 
 care required from minors is reasonable care, and not 
 ordinary care ; ^ and the care required from municipal 
 corporations is reasonable care.* 
 
 This term therefore is broader and more accurate than 
 the older phrase, " ordinary care." 
 
 § 5. Importance of regarding the circumstances. — As the 
 subject of negligence is thus viewed, the importance of 
 the circumstances surrounding an act claimed to be neg- 
 
 ' See criticism of Sherman & Red- 
 field on the definitions of "ordinary 
 care," Negligence, § 43. See also 
 Wabash Railway Co. v. McDaniels, 
 107 U. S. 454 (1882) ; Houston, etc. 
 Railway Co. v. Smith, ^^ Tex. 179, 
 13 S. W. Rep. 972 (1890). 
 
 'New Jersey Steamboat Co. v. 
 Brockett, 121 U. S.637 (1887); Penn- 
 sylvania Co. V. Roy, 102 U. S. 451 
 (1880); Palmer v. Delaware & Hud- 
 son Canal Co., 120 N. Y. 170 (1890); 
 Miller v. Ocean Steamship Co., 118 
 N. Y. 199 (1890); Coddington v. 
 Brooklyn Crosstown Railroad Co., 
 102 N. Y. 66 (1886); Montgomeiy, 
 etc. Railway Co. v. Mallette (Ala.), 9 
 So. Rep. 363 (1891); Southern Kan- 
 sas Railway Co. v. Walsh, 26 Pac. 
 Rep. 45 (1891). 
 
 = Wright V. Detroit, etc. Railway 
 Co., ^^ Mich. 123, 43 N. W. Rep. 765 
 (1889); Georgia Midland Railroad 
 Co. V. Evans, 13 S. E. Rep. 580 
 (1 891); Western, etc. Railroad Co. v. 
 
 Young, 83 Ga. 512, 10 S. E. Rep. 197 
 (1889); Swift V. Staten Island, etc. 
 Railroad Co., 123 N. Y. 645 (1890); 
 Stone V. Dry Dock, etc. Railroad Co., 
 IIS N. Y. 104 (1889); Mars v. Dela- 
 ware, etc. Canal Co., 54 Hun 625 ; 
 Westbrook v. Mobile, etc. Railroad 
 Co., 66 Miss. 560, 6 So. Rep. 321 
 (1889); Cook V. Houston Direct Nav. 
 Co., 76 Tex. 353, 13 S. W. Rep. 475 
 (1890); Penso V. McCormick, 125 Ind. 
 116, 21 Am. St. R. 211, note (1890); 
 Ridenhour v. Kansas City, etc. Ry. 
 Co., 102 Mo. 270 (1890). 
 
 The phrase " reasonable care " also 
 describes more accurately the care 
 required from a woman. See Has- 
 senyer v. Michigan Central Railroad 
 Co., 48 Mich. 204 (1882); St. Louis, 
 A. & T. Railway Co. v. Finley, 79 
 Tex. 85, 15 S. W. Rep. 266 (1890); 
 Snow V. Provincetown, 120 Mass. 580 
 (1876); Bloomington v. Perdue, 99 
 111. 329 (1880). 
 
 ^ See infra, %\ 37, 72, et seq. 
 
§ 6 PRINCIPLES OF THE LAW OF NEGLIGENCE. 9 
 
 ligent is readily appreciated. These circumstances dis- 
 close the nature and time of the accident, the relative 
 position and the mental and physical condition of the 
 parties, the character of the occupations of each, the 
 degree of progress reached in any particular science or 
 business, the concurrent causes, if any, that have operated 
 to produce the result, and many other facts bearing on 
 the injury. They show, sometimes, that the duty to exer- 
 cise care did not exist and determine whether it is proper 
 to compare the care exercised by the person charged 
 with negligence with the care of a man with skill or 
 without, with the care of one who is dealing with harm- 
 ful or harmless agencies, or with the care that is expected 
 from a child. 
 
 In all negligent cases, therefore, it is particularly 
 necessary to closely study the facts and circumstances, 
 for these by their complexity occasion much of the diffi- 
 culty in the proper disposition of the cases.^ 
 
 § 6, Distinctions between degrees of negligence. — Much 
 learning has been bestowed upon the distinctions between 
 slight, ordinary, and gross negligence. These distinctions, 
 although often credited to the Roman law, are to a con- 
 siderable extent the product of more modern times,^ and 
 
 ' " There is no absolute or intrinsic Broom's Common Law, p. 657 ; The 
 
 negligence ; it is always relative to Lex Aquilia, Grueber, p. 224 et seq. 
 
 some circumstance of time, place or Infra, § 76. 
 
 person." Brarawell, B., in Degg v. '■' " The so-called ' Aquilian culpa ' 
 Midland Railroad Co., i H. & N. 781 — ^just as dolus and casus — admits of 
 (1857); Gleeson v. Virginia Mid- no gradation. In contractual culpa, 
 land Railway Co., 140 U. S. 435 ; Mil- however, are distinguished two de- 
 waukee Railroad Co. v. Arms, 91 grees, answering to the greater or less 
 U. S. 489, 495 (1875); Ellis V.Lake- diligentia to be put forth: 'culpa 
 shore, etc. Railroad Co., 21 Atl. Rep. lata ' and ' culpa levis.' " Salkowski's 
 140 (1891); Pennsylvania Railroad Roman Law, p. 517. "The Aquilian 
 Co. v. Coon, III Pa. 430 (1886); law does not distinguish different de- 
 Franklin V. Southern Cal. Motor grees of culpa. " The Lex Aquilia, 
 Road Co., 85 Cal. 63 (1890); Sand- Grueber, p. 222 (1886); Sherman & 
 ford V. Hestonville, M. & F. R. Co., Redfield on Neg., § 41. 
 136 Pa, 84, 20 Atl. 799 (1890). 
 
lO PRINCIPLES OF THE LAW OF NEGLIGENCE. § 6 
 
 are indeed sometimes upheld at present.^ The cases are 
 full of references to them, but it would seem that while 
 the discussion about them has shown clearly the varying 
 character of the questions of negligence that come before 
 the courts, and has emphasized the importance of a close 
 examination of the facts and circumstances in each case, 
 it has done little besides. For the distinctions are now 
 held of small account by the courts,^ and the effort is to 
 determine from the facts presented whether there has 
 been a failure to exercise reasonable care. And this is so 
 not only in regard to actions for the violation of the gen- 
 eral duty to exercise care (the Aquilian action of the 
 Roman law), but the same principle is also applied in 
 actions based upon a violation of " a contractual duty." 
 If, then, the defendant has been a gratuitous bailee, the 
 query is, has he exercised reasonable care in the discharge 
 of his duty as such a bailee ?^ If, on the other hand, he 
 has been a bailee for hire, the question still is, has he 
 exercised reasonable care in the discharge of his duty 
 in this latter capacity ? 
 
 ' V^harton on_ Neg., §636; Sher- skill, and diligence required in the 
 
 man & Redfield on Nag., chap, iii., performance of various duties, and 
 
 §§41-51, citing many cases. the fulfillment of various contracts, 
 
 ' In Milwaukee Railway Co. v. we think they go too far, since the 
 
 Arms, 91 U. S. at p. 495 (1875), Mr. requirement of different degrees of 
 
 Justice Davis said : " Gross negli- care in different situations is too firmly 
 
 gence is a relative term ; after all, it settled and fixed in the law to be 
 
 means the absence of care that was ignored or changed." See also Mc- 
 
 necessary under the circumstances." Adoo v. Richmond, etc. Railroad Co., 
 
 In New York Central Railroad Co. 105 N. C. 140 (1890) ; Mark v. Hud- 
 
 V. Lockwood, 17 Wall 357 (1873), Mr. son River Bridge Co., 103 N. Y. 28 
 
 Justice Bradley said: "In each case (1886); Cooley on Torts, p. 631; 
 
 the negligence— whatever epithet we Deering on Negligence, §11; Am. & 
 
 give it— is failure to bestow the care Eng. Encyc. of Law, vol. xvi., p. 426. 
 
 and skill which the situation demands ; A full discussion of the subject, 
 
 and hence it is more strictly accurate, with a complete review of the English 
 
 perhaps, to call it simply ' negligence.' authorities, is contained in Beven on 
 
 And this seems to be the tendency of Negligence, chap. iii. 
 
 modern authorities. If they mean « Ouderkirk v. Central National 
 
 more than this and seek to abolish Bank, 119 N. Y. 263 (1890). 
 the distinctions of degrees of care. 
 
§7 
 
 PRINCIPLES OF THE LAW OF NEGLIGENCE. 
 
 II 
 
 Again, if one claims to have special skill, the care to 
 be exercised by him is that care which is reasonable under 
 the circumstances — the circumstances disclosing that the 
 claim of special skill is put forth.^ 
 
 § 7. Failure to exercise reasonable care is breach of 
 duty. — From what has been said it appears that the care 
 one is required to exercise is wholly relative, and that 
 the circumstances must in each case show what the duty 
 was in that particular case. The question always is, has 
 there been a failure to exercise reasonable care ? if there 
 has, the duty to exercise care has been violated ; and, con- 
 versely, if reasonable care has been exercised there has 
 been no breach of duty.^ 
 
 To determine whether this duty has been discharged 
 
 ' "The Prussian Laiidrecht adopts 
 the three degrees of ' culpa,' and de- 
 fines them as follows : 
 
 "I., 3, § 18. Negligence which, in 
 the case of ordinary aptitude, could 
 have been avoided without any effort 
 of attention is called gross negligence 
 (grobes Verschen). 
 
 " I., 3, § 20. Negligence which could 
 have been avoided with an ordinary 
 degree of attention is called moderate 
 negligence (massiges Verschen). 
 
 " I., 3, § 22. Negligence which could 
 have been avoided only by the aid of 
 distinguished aptitude, or of a special 
 acquaintance with the object or the 
 transaction, or by an extraordinary 
 eflfort of attention, is called slight 
 negligence (geringes Verschen). 
 
 " The Saxon Code knows only two 
 degrees of culpa, and defines in § 122 
 slight negligence (geringe Fahrlassig- 
 keit) as the omission of that care 
 which a prudent and diligent house- 
 holder is in the habit of exercising ; 
 gross negligence (grobe Fahrlassig- 
 keit) as the omission of that care 
 which even a less prudent and less 
 
 diligent person is in the habit of exer- 
 cising. 
 
 " The Swiss Code of the Law of Ob- 
 ligations (i88i) adopts the same dis- 
 tinction without attempting a defini- 
 tion (see for instance § 114). 
 
 " The Austrian and French Codes 
 speak of one kind of culpa only (the 
 omission of ' pflichtmassige Absorge ' 
 [A. C, § 964], or of ' Les soins d'un 
 bon p^re de famille,' C. C, § 1137; 
 Conf. Sainctelette de la Responsa- 
 bilit^, p. 22 [i]), but the French Code 
 extends or attenuates the correspond- 
 ing obligation according to the cir- 
 cumstances (C. Civ., §§ 1 137, 2, 1374, 
 1928, 1992, etc., etc.)." Schuster on 
 " Liabilities ol Bailees According to 
 German Law,'' Law Quarterly Re- 
 view, vol. ii., p. 205 (1886). 
 
 '^ Farrell v. Waterbury Horse Rail- 
 road Co. (Conn.), 21 Atl. Rep. 675 
 (1891); Fassett v. Roxbury, 55 Vt. 552 
 (1883); Central Railroad Co. v. Ryles, 
 84 Ga. 420, It's. E. Rep. 499 (1889); 
 St. Louis, etc. Railroad Co. v. Finley 
 (Tex.), IS S. W. Rep. 266 ; Deering 
 on Neg., §§ 7. 210. 
 
12 
 
 PRINCIPLES OF THE LAW OF NEGLIGENCE. 
 
 7 
 
 the conduct of the person before the court is often com- 
 pared with the conduct of an ordinarily prudent man, 
 under similar circumstances.^ 
 
 But it is to be observed that it is the court and jury 
 that determine what the conduct of the ordinarily 
 prudent man would be, and that the standard of action 
 is based upon what it is reasonable to require from men 
 under certain circumstances rather than upon what or- 
 dinarily prudent men or reasonable men actually do 
 under similar circumstances.^ 
 
 It may also be said that in no proper sense is there a 
 failure to exercise reasonable care and consequently a 
 breach of the duty to exercise care — (i), if there is inten- 
 tion to injure ;^ (2), if the person acting is not a responsi- 
 ble person capable of exercising care ;* (3), if the situa- 
 
 'This fictitious personage was 
 known among the Romans as the 
 " diligens paterfamilias" (The Lex 
 Aquilia, Grueber, p. 223), or the 
 " bonus paterfamilias" (supra, § 4, n.), 
 and he is usually described in Eng- 
 land as " the reasonable man." See 
 Pollock on Torts, p. 357, and article 
 " The Reasonable Man at Common 
 Law," by F. T. Piggott, 14 Law 
 Mag. & Rev. 314 (1890). 
 
 * " The degree of care to be ob- 
 served in each case implies a standard 
 in law with reference to which liability 
 is to be determined, and toward a 
 definite expression of which the law is 
 continually tending. In all the more 
 common relations this standard al- 
 ready exists." Beven on Negligence, 
 p. 12; see Pollock on Torts, p. 357. 
 The duty to stop and listen at a 
 dangerous railway crossing is a fair 
 illustration of an obligation imposed 
 because of its reasonableness and not 
 because it is the course usually taken 
 by ordinarily prudent men. 
 
 ' Supra, % 3. 
 
 * " Unless there is a legally re- 
 sponsible person chargeable of an in- 
 advertent want of ordinary care re- 
 sulting in damage to another, there is 
 no person who can be required to re- 
 spond in damages for an injury of 
 such character. In other words, there 
 must be a person who in contempla- 
 tion of law is legally answerable for 
 the results of a want of ordinary care 
 on his part before negligence in its 
 proper sense can be established. If 
 a person charged with negligence is 
 wholly incapable of exercising care in 
 the legal meaning of that word, he 
 cannot be held responsible for a want 
 of ordinary care. It has been said 
 that infants and lunatics are liable for 
 negligence ; but this statement is 
 much broader than the true doctrine 
 and is unsupported either by reason 
 or authority." Am. & Eng. En- 
 cyc. of Law, vol. xvi., p. 406, citing 
 cases. 
 
§ 8 PRINCIPLES OF THE LAW OF NEGLIGENCE. 1 3 
 
 tion is one that requires the exercise of some other duty 
 than the duty to take care.^ 
 
 § 8. Damage to whom the duty is owing. — The second 
 essential of an action for negligence, stated above, com- 
 prises two elements, namely: (i) damage, and (2) damage 
 to a person toward whom there was the obligation to use 
 care. Without special damage there can be no action for 
 negligence,^ and it is well settled also that the special 
 damage must be done to the person to whom the duty 
 was owing.* The law imposes the obligation to exercise 
 care for the protection of those who are acting within 
 their own rights. 
 
 Thus, if from the negligence of the owner of land an 
 injury is suffered by one who comes there without invita- 
 tion, there is no liability for the damages he may receive 
 from the owner's carelessness.* So a carrier is not liable 
 for mere negligence toward one who is injured on a rail- 
 way train, but who is not entitled to be there.* And to 
 
 ' Infra, % 8. causes injury to the second man, and 
 
 ^ Pollock on Torts, p. 19 ; Cooley when such duty does exist, and such 
 
 on Torts, p. 752 ; Am. & Eng. Encyc. careless act or omission occurs, caus- 
 
 of Law, vol. xvi., p. 425 ; Sherman & ing an injury in direct and regular se- 
 
 Redfield on Negligence, § 24. quence, the careless act becomes in 
 
 ' Heaven v. Pender, 11 Q. B. D. the eyes of the law actionable negli- 
 
 503 (1883); Savings Bank v. Ward, gence, for which the party injured has 
 
 100 U. S. 195 (1879); Caniff V.Blanch- a right of action against the person 
 
 ard Nav. Co., 66 Mich. 638, 1 1 Am. inflicting the injury." Pollock on 
 
 St. R. 541 (1887) ; Schmidt v. Bauer, Torts, p. 352. 
 
 80 Cal. 565 (1889) ; Brant v. Plumer, * Daniels v. New York & N. E. 
 
 64 la. 33, 19 N. W. Rep. 84 (1884); Railroad Co. (Mass.), 13 L. R. A. 
 
 Bishop on Non-Contract Law, § 446 ; 248, 28 N. E. Rep. 283 (1891) ; Redi- 
 
 Broom's Common Law, pp. 81, gan v. Boston & M. Railroad Co., 45 
 
 82. Alb. L.J. 62 (1891) ; Hart v. Grennell, 
 
 " Some relation of duty, public or 122 N. Y. 371 (1890); Cusick v. 
 
 private, special or general, must exist, Adams, 115 N. Y. 55 (1889) ; Larmore 
 
 either by contract or as an implication v. Crown Point Iron Co., loi N. Y. 
 
 of public policy, before one man be- 391 ; Trask v. Shotwell, 41 Minn. 66 
 
 comes liable to another for the conse- (1889). 
 
 quences of a careless act or omission ' McVeety v. St Paul, etc. Railroad 
 
 on the part of the first man which Co., 45 Minn. 268, 11 L. R. A. 174, 47 
 
14 PRINCIPLES OF THE LAW OF NEGLIGENCE. § 9 
 
 enable one to recover from a municipal corporation for 
 its negligence, he must show that the corporation has 
 violated the particular duty due him under the circum- 
 stances of his case.^ 
 
 § 9. Damage must be justly attributable to breach of 
 duty.— The final essential to an action for negligence is 
 that the damage received must be the just and reasonable 
 result of the negligence shown. The aim of the law is to 
 make persons responsible for damages occasioned by the 
 acts for which they are accountable, and to afford protec- 
 tion from any greater liability than is justly attributable 
 to these acts. The question to be determined in each 
 case is, is the damage shown the fair result of the negli- 
 gence complained of, or is it referable to some other 
 cause ? It is often said that the negligence must be the 
 " proximate cause " of the damage in order to create lia- 
 bility. And as there is no other phrase descriptive of 
 this responsible cause, and as this term has become well 
 fixed in the law, there is much to be gained by its con- 
 tinued use. But it is to be noticed that it is not neces- 
 sary that the negligent act should be the last cause, the 
 primary cause, or the sole cause. Indeed, the only essen- 
 tial matter is that, in view of all the circumstances of the 
 case, it shall be just and reasonable to attribute the damr 
 age to the negligence charged and to nothing else. 
 Where it is so the responsible cause is reached, and this, 
 for convenience sake, may be designated as the proximate 
 cause. Wherever the legal investigation of the facts 
 makes clear this causal connection, the negligent person 
 
 N. W. Rep. 809 (1 891) ; Hendryx v. Railroad Co. (Mo.), 37 Am. & Eng. 
 
 Kansas City, etc. Railroad Co. (Kas.), R. Gas. 292, note. 
 
 25 Pac. Rep. 893 (1891). See also ' Heaven v. Pender. L. R. 11 Q. B. 
 
 Louisville, etc. Railroad Co. v. Black, D. 503 (1883) ; Murphy v. Brooklyn, 
 
 89 Ala. 313, 45 Am. & Eng. R. Cas. ii8 N. Y. 575 (1890). 
 
 38, note ; Barker v. Hannibal, etc. Infra, §§ 36, 72, 90. 
 
§ lO PRINCIPLES OF THE LAW OF NEGLIGENCE. 1 5 
 
 must respond for the damage done. And the decisions 
 of the courts show the principles that have controlled 
 in tracing the causal connection between the results of 
 negligent acts and the acts themselves.^ 
 
 § 10. Contributory negligence. — If a person who charges 
 another with negligence has by his own acts caused the 
 damage, it is neither reasonable nor just to attribute such 
 damage to the negligence charged. In such a case the 
 damage is not traceable to a breach of duty by another 
 person, and an essential element to enforcing liability is 
 lacking.^ 
 
 In practice it is a matter of much difficulty to deter- 
 rhine when the damage is attributable to the negligence 
 of the defendant and when to the contributory negligence 
 of the plaintiff, and many questions of fact usually arise 
 which must be settled by the jury. But the principle set 
 forth in the preceding section controls the presentation 
 of these facts, and the one main inquiry is, whose act, in 
 view of all the circumstances, is justly responsible for the 
 injury? The now well-established rule, that the defend- 
 ant will be responsible if the contributory negligence of 
 the plaintiff is so far prior to the time of the accident 
 that the defendant has had opportunity to adjust his ac- 
 tions to the circumstances presented to him and negligently 
 fails to do this, illustrates the method in which the facts 
 and causes which unite to occasion an accident are exam- 
 ined by the courts, and shows that it is the act which is 
 justly responsible for the injury that will be deemed the 
 
 'See generally upon this subject Railroad Co., ill U. S. 228 (1884); 
 
 Am. & Eng. Encyc. of Law, vol. xvi., Heaven v. Pender, L. R. 11 Q. 
 
 pp. 396-398, 428 ; Sherman & Red- B. D. 503- Consult infra. Chapter 
 
 field on Negligence, § 25 et seq. ; Be- on Proximate Cause, 
 
 yen on Negligence, p. 75 ; Cooley on " Pollock on Torts, p. 374 ; Whar- 
 
 Torts, p. 816; Wharton on Negli- ton on Negligence, § 300. 
 gence, §74; Hayes v. Michigan, etc. 
 
1 6 PRINCIPLES OF THE LAW OF NEGLIGENCE. 
 
 10 
 
 proximate cause.* The same principle is also applicable 
 to those cases where it is claimed that the negligence of 
 one person may be imputed to another, whether an adult 
 or a minor, and furnishes the proper ground of decision 
 in these cases.* And in all instances, whether the action 
 be against an individual or a municipal corporation, if it 
 can be shown that the real cause of the damage was the 
 plaintiff's negligence, no recovery can be had.^ 
 
 ' Davies v. Mann, lo M. & W. man & Redfield on Negligence, 
 
 546, 12 L. J. Ex. 10 (1842); Radley §99. 
 
 V. London, etc. Railway Co., L. R. ^ Pollock on Torts, p. 379 et seq. 
 10 Ex. 100, I App. Cas. 759 (1876); ' See zw/ra. Chapter on Contribu- 
 
 Beven on Negligence, p. 128; Sher- tory Negligence. 
 
CHAPTER II. 
 
 EARLY INSTANCES OF MUNICIPAL LIABILITY FOR 
 NEGLIGENCE. 
 
 § II. Importance of considering growth of doctrine. 
 
 12. Municipalities under the Roman law. 
 
 13. Corporations not ordinarily responsible for wrongs. 
 
 14. Municipalities liable for culpa of representatives. 
 
 15. Early English law governing corporate wrongs. 
 
 16. First instances of municipal liability for negligence. 
 
 17. Importance of Chief-Justice Vaughan's statement. 
 
 18. Further illustration of this hability. 
 
 19. American law. 
 
 § II. Importance of considering growth of doctrine. — An 
 interesting account of the growth and development of 
 cities and other municipal bodies, written from the stand- 
 point of the legal student, is found in the well-known 
 work on Municipal Corporations by Dillon.^ In such 
 accounts prominence is necessarily given to the political, 
 administrative, and general features of these corporations, 
 and one is not surprised to find that the growth of the 
 doctrine of municipal liability for negligence is not con- 
 sidered. As we are concerned with this doctrine alone, a 
 brief review of the early law is not only essential to a 
 correct historic view of the subject, but it will also prove 
 of much value in determining the position that should be 
 taken upon many questions of practical importance still 
 in dispute. ^ 
 
 ' Dillon's Municipal Corporations, preface ; Glover on Municipal Cor- 
 4th ed., 1890, chap. i. See also poralions, p. 7 if/ .s^y. 
 Angell and Ames on Corporations, 
 2 
 
1 8 EARLY INSTANCES OF § 12 
 
 § 12. Municipalities under the Roman law. — Under the 
 Roman civil law a municipal corporation was an inde- 
 pendent member of society, so far as its private rights 
 and obligations were concerned ;' and the test of its cor- 
 porate character was its property capacity.^ All urban 
 communities, vfhether nvz^aUs, vtunicipia, colonics, oxvici, 
 possessing the power of acquiring and holding prop- 
 erty, were corporations.^ And it was largely to preserve 
 to these corporations their individual rights that the law 
 relating to juristic, or artificial persons, was developed. 
 Savigny says : 
 
 " It was in regard to dependent communities (munici- 
 palities and colonies), by the expansion of the State, that 
 the notion of juristical persons at first obtained a remark- 
 able application, and also a more definite development ; 
 because these communities, like natural persons, had, on 
 the one hand, need of property and the opportunity for 
 its acquisition, but, on the other hand, such a dependent 
 character that they could be arraigned before a court of 
 justice. In this last respect they differed from the Roman 
 State, which was not subject to the jurisdiction of any 
 judge, and whose property relations were treated as more 
 of an administrative kind ; therefore, also, for this reason, 
 consideration for the Roman Republic and for its prop- 
 erty did not supply the original motive for the recogni- 
 tion of a juristical personality and for the development 
 of its rights, although, for the security of the State, simi- 
 lar legal forms to those prevailing for the security of 
 
 ' Salkowski's Roman Law, Whit- ' Savigny's Rural Relations, Ratti- 
 
 field, London, l886, pp. 327, 331 ; gan, pp. 176, 178. The independent 
 
 Savigny's Jural Relations, Rattigan, property of these corporations is re- 
 
 p. 176; Goudsmit's Roman Law, ferredto in Inst. IL, i. See Institutes 
 
 Gould, London, 1873, p. 72; Tomkins of Justinian, Abby & Walker, Cam- 
 
 & Jencken's Modern Roman Law, bridge, 1876, pp. 79, 80. 
 
 London, 1870, p. 54. s Roman Civil Law, Amos, 1883, 
 
 p. 120. 
 
13 MUNICIPAL LIABILITY FOR NEGLIGENCE. 1 9 
 
 trivate persons were introduced, of which amongst others 
 \\& jus prcediatorum offers an example."^ 
 
 § 13. Corporations not ordinarily responsible for wrongs. 
 —These municipalities were the types of all corporations 
 mder the Roman law,® and no distinction is drawn be- 
 ween them and private corporations either in respect to 
 heir independence or their capacities.^ Owing to its 
 lature, a corporation was deemed incapable of commit- 
 ing a crime,* and it was generally considered that it 
 ;ould not be made guilty of any intentional wrong. Rat- 
 igan says : " Again, with respect to delicts short of 
 ictual crimes, the general principle was that a corpora- 
 ion could not collectively commit a delict, because, as 
 ibove explained, every delict pre-supposes dolus or 
 ulpa, which again requires consciousness and prepense 
 )n the part of the delinquent. Thus Ulpian says the 
 ictio dolt is not available against a municipium, but only 
 igainst those who administer its affairs, that is, the de- 
 •uriones." ^ 
 
 This question, however, has long been in dispute, and 
 ;ome have held — what seems to be the more reasonable 
 ioctrine, considering the rights bestowed upon corpora- 
 ions as juristic persons — that the Roman law only 
 
 ' Savigny's Jural Relations, Ratti- whose personality was from of old 
 
 jan, pp. 183, 184. See also Mackel- recognized in Roman Law afford the 
 
 ley's Roman Law, Dropsie, p. 1 38 ; type for the rest of Juristic Persons, 
 
 "olquhoun's Roman Law, § 838. which is ever fixed in their constitu- 
 
 " In order to give to certain rela- tion." Salkowski's Roman Law, p. 
 
 ionships a jural form conformable to 331. 
 
 heir nature, the principle of right has ' Roman Civil Law, Amos, 1 883, p. 
 
 lassed beyond the individual man as 120. 
 
 he natural subject of personality, and * Savigny's Jural Relations, pp. 
 
 las created other persons besides in- 231-235. 
 
 lividuals, called ' Juristic ' or ' Juridi- ' Rattigan on the Roman Law of 
 
 ;al Persons.'" Persons, p. 204; compare Colqu- 
 
 Outlines of Jurisprudence, Puchta, houn's Roman Law, vol. i., §§ 906, 
 
 ranslated by Hastie, p. loi. 913; Roman Civil Law, Amos, p. 
 
 '"The State and communities 120. 
 
20 EARLY INSTANCES OF § 14 
 
 freed a corporation from responsibility for such wrongs 
 as it was actually incapable of committing.^ The status 
 of corporations respecting crimes and wrongs, however, 
 from such data as we have, does not seem to have been 
 clearly defined under this law, and exact lines of demarca- 
 tion cannot be laid down.^ 
 
 § 14. Municipalities liable for culpa of representatives.— 
 
 Notwithstanding the prevalence of the general rule that 
 corporations were not responsible for delicts, it is ad- 
 mitted by Savigny that the rule was " otherwise in the 
 contractual dealings of Juristical Persons, when the 
 Dolus or Culpa of their substitutes comes into considera- 
 tion, because this is a modification inseparable from the 
 principal obligation, in regard to which the intention of 
 the Juristical Person is just as unimportant as that of a 
 Physical Person, whose authorized agent is guilty of 
 Dolus or Culpa in a contract." ^ And he also is authority 
 for the proposition that if a municipality acquired pos- 
 session of property by the w^rongful act of its representa- 
 tives, restitution of the property could be exacted.* 
 
 Moreover, it seems probable from the general and 
 broad requirements of the Aquilian law that all corpora- 
 tions (as persons) were liable for damage inflicted upon 
 others by the culpa of their representatives, on the ground 
 that one under whose advice or direction damage was 
 thus occasioned was liable to the Aquilian action.^ 
 
 In such a case no question would arise in regard to 
 the power of the corporation to be itself guilty of culpa, 
 for the fault would be that of the representative ; and in a 
 
 1 Savigny's Jural Relations, Ratti- ^ Savigny's Jural Relations, Ratti- 
 
 gan, p. 231 et seq. gan, p. 236. 
 
 '' See article entitled : " The State <> Id., pp. 237, 238. 
 
 and Private Corporations," by Robert ^ xhe Lex Aquilia, Grueber, p. 253; 
 
 Ludlow Fowler, 25 Am. Law Rev. see also the summary of rights and 
 
 581 (1891). obligations of corporations, by Amos, 
 
 Roman Civil Law, pp. 120, 183. 
 
§ 15 MUNICIPAL LIABILITY FOR NEGLIGENCE. 21 
 
 case of this character it could be said that a corporation 
 as well as an individual " was in no way personally and 
 morally accountable for the injuries committed, and in- 
 deed was probably ignorant of the fact of their commis- 
 sion." 1 
 
 This principle seems to justify the conclusion that even 
 under the Roman law the obligation alterum non Icedare 
 rested upon every municipal corporation. 
 
 § 15. Early English law governing corporate wrongs. 
 — There seems to be no time when corporations 
 were wholly free from responsibility for torts by the 
 common law. Some passages may be quoted from 
 Brooke's abridgment to show that such a responsibility 
 was not recognized, but other citations there contradict 
 this impression.* The proposition that a corporation could 
 not be responsible for a wrong was stated by Fitzjames, 
 Justice, thus: "A corporation cannot do a tort but by 
 their writing under their common seal." ^ A statement, as 
 was said by Lord EUenborough,* " which imports that 
 by their writing they may." Even this qualified state- 
 ment of their capacity to commit a wrong has not been 
 conceded, and seems to have been simply a method of ex- 
 pression in a special case of the principle that authority 
 for a corporate wrong must proceed from the corpora- 
 tion itself, for numerous instances are mentioned in the 
 ancient books where corporations were made liable in 
 actions on the case for trespass® and other torts.^ 
 
 ■ Roman Civil Law, Amos, p. 183. * Yarborough v. Bank of England, 
 
 ' Viner's Abr., vol. vi., p. 298. See 16 East 6 (1812). 
 
 the discussion of the question in the ' See Maund v. Monmouthshire 
 
 following cases : Yarborough v. Bank Canal Co., 4 M. & G. 4.52 (1842). 
 
 of England, 16 East6 (1812) ; Maund " Comyns' Dig., Am. Ed. by Day, 
 
 V. Monmouthshire Canal Co., 4 M. 1825, p. 486 ; Broom's Com. Law, 
 
 & G. 452 (1842). vol. i., p. 578. 
 
 3 Bro. Corporations (1575) pi. 34, In Riddle 7. Props, of Locks, etc., 7 
 
 cites 14 Hen. VIII., 2, 29. Mass. 169 (1810), Ch. J. Parsons says : 
 
2 2 EARLY INSTANCES OF ■ § l6 
 
 § i6. First instances of municipal liability fornegligence.— 
 An examination of the common law leaves little doubt 
 that from the earliest times an action on the case could 
 be brought against a municipal corporation for its negli- 
 gent discharge of a corporate duty by which damage 
 was inflicted. No reason existed why this liability 
 should not attach save the general idea that a corpora- 
 tion was incapable of committing a tort, and this, as we 
 have seen, was not a sufficient consideration to excuse 
 a corporation from even a more serious wrong. One au- 
 thority, sometimes supposed to oppose this doctrine of 
 liability, was cited in Brooke, and goes to show that 
 there was then no responsibility on the part of the pub- 
 lic for a failure to repair a common ^ay,^ but this case 
 only discloses the rule where there was no corporation 
 charged with the duty to repair. In cases where the duty 
 to repair a bridge rested upon a body corporate, as it 
 frequently did prior to the statute of 22 Henry VIII.,* 
 
 " In 31 Ass. pi. 19, a corporation forme per presentment,' which must 
 was holden answerable in assize as a be understood to mean that as the 
 disseizor with force. In 8 H. 6, i, 14, road ought to be repaired by the pub- 
 6 an aggregate corporation was hold- lie, no individual can maintain an ac- 
 en answerable in trespass for distrain- tion against them for any injury aris- 
 ing the plaintiff's cattle until he paid ing from their neglect." See Russell 
 a toll which he was not bound to pay. v. Men of Devon, 2 T. R. 667. /«- 
 Several other cases are mentioned in fra, % 47. 
 
 Theloal's Dig. lib. 4, c. 13, as trespass '' It was the rule of common law 
 against a corporation for disturbing before the stat. of 22 H. 8, cap. 5, that 
 the plaintiff in the profits of his liber- bodies incorporate were often corn- 
 ties, or for disturbing him in holding pelled to repair bridges by prescrip- 
 a leet. It is therefore very clear, tion or usage. 2 Coke's Inst., §700, 
 from the examination of the old where it is also said : 
 books, that some action of trespass " If a bridge be within a franchise, 
 might, at common law, be maintained those of the franchise are to repair it. 
 against aggregate corporations." If the bridge be part within a fran- 
 
 1 Bro. Abr., title " Accion Sur le ch'se and part within the gildable, so 
 
 Case," pi. 93, where it is said " that much as is within the franchise shall 
 
 if an highway be out of repair, by be repaired by those of the franchise, 
 
 which my horse is mired, no action and so much as is within the gildable 
 
 lies, ' car est populus et surra re- by those of the gildable." 
 
§ 1 6 MUNICIPAL LIABILITY FOR NEGLIGENCE. 23 
 
 there seems little reason to doubt that an action on the 
 case by one who received special damage by reason of 
 the want of repair could be brought against the corpora- 
 tion.* And similarly an action on the case could prob- 
 ably have been brought against a municipal corporation 
 having control of a highway.^ It is to be noticed 
 that the remedy by indictment was for the purpose of 
 accomplishing the repair of the bridge or way and pre- 
 venting accidents, and that it did not conflict with or 
 take the place of an action on the case for damages to 
 an individual who had been injured, and therefore, be- 
 cause the one remedy existed, there is no reason for con- 
 cluding that the other did not. 
 
 That a civil action could be brought against a mu- 
 nicipal corporation for its neglect of duty in the respects 
 mentioned, finds strong confirmation in the following 
 acute statement of the law made by Chief-Justice 
 Vaughan of the English Court of Common Pleas in the 
 latter half of the seventeenth century : 
 
 ' See Paine v. Partridge, i Shower Chimin Common, vol. iv., 2d ed., 
 
 231 (1794) ; Steinson V. Heath, 3 Lev. London, 1791, p. 505 : 
 
 400 (6 Wm. and Mary) ; Churchman " If any particular person after the 
 
 V. Tunstall, Hardres 162 (1659) ; nuisance made has more particular 
 
 Yielding v. Fay, Cro. Eliz. 569. damage than any other, in such 
 
 2 If " any man hath a particular case, and because of this particu- 
 
 damage, as if he and his horse fall lar injury, he shall have particular 
 
 into the ditch, whereby he received action upon the case." 7 Rep. 73 
 
 hurt and losse, therefore this special cites 27 H. 8, 27 a, Note. Per Vaugh., 
 
 damage, which is not common to Ch. J., Vaugh. 341 (see text, supra). 
 
 others, he shall have an action upon S. P., per Fitzh. J., Br. Accions 
 
 his case." 1 Coke's Inst. 68. To which sur le Case, pi. 6, cites 8 C. As 
 
 the following is given as a note in if he and his horse fall into it, 
 
 Hargrave & Butler's Edition, see whereby he receives hurt and loss. 
 
 American edition (1853) : Co. Litt., 56 a, says it was so resolved 
 
 " On special damage action on the in B. R., and in the margin cites 27 
 
 case lies for not repairing as well as H. 8, 27. And in the case of Fineux 
 
 for a nuisance in the highway." P. v. Hovenden, Cro. E. 664, Pasch, 41 
 
 1657, C. B., adjudged 18 E. 4, Hal. Eliz., Coke, attorney-general, cited 
 
 MSS. (Note 375), p. 56 a. the S. P. adjudged in the same year 
 
 See also Viner's Abridgment, Title of 27 H. 8. Bendlows v. Kemp, 
 
24 EARLY INSTANCES OF §17 
 
 "And note, if a man have particular damage by a 
 foundrous way, he is generally without remedy, though 
 the nuisance is to be punisht by the King. The reason 
 is, because a foundrous way, a decay'd Bridge or the 
 like, are commonly to be repaired by some Township, 
 Vill, Hamlet, or a County, who are not corporate, and 
 therefore no action lies against them for a particular 
 damage, but their neglects are to be presented, and they 
 punisht by fine to the King. But if a particular person 
 or Body corporate, be to repair a certain Highway or 
 portion of it, or a Bridge, and a man is endamaged par- 
 ticularly by the foundrousness of the way, or decay of 
 the bridge, he may have his action against the person or 
 Body corporate who ought to repair, for his damage, be- 
 cause he can bring his action against them ; but where 
 there is no person against whom to bring his action, it is 
 as if a man be damaged by one that cannot be known."' 
 
 § 17. Importance of Chief-Justice Vaughan's statement. 
 — It has been objected that the statement of the law 
 made by Chief-Justice Vaughan and just quoted was 
 obiter. Let this be granted, are we not exceedingly 
 fortunate to have such a clear summary of the law upon 
 this question in any shape? It is contained in a care- 
 fully written opinion, and, although used by way of argu- 
 ment, can hardly be assumed to be incorrect. It is more- 
 over stated as a well-settled principle would be, and it 
 recognizes the existing decisions so far as we know thetti. 
 And when it is remembered that the reports of cases 
 prior to this date are exceedingly imperfect, and that 
 if we reject this statement of the law made at the time. 
 
 Br. Accions sur le case, pi. 93, cites for that is the people, but it shall be 
 5 E. 4, 3, that he shall not have action reformed by presentment." 
 against him who ought to repair it, ' Chief Justice Vaughan in Thomas 
 
 V. Sorrell, Vaughan 330, 340. 
 
§ 1 8 MUNICIPAL LIABILITY FOR NEGLIGENCE. 25 
 
 we must do it without any evidence that the law of that 
 period differed from it, it is believed that there are many- 
 reasons why great weight should be attached to this 
 opinion, in considering the growth of the doctrine of 
 municipal liability for defective ways. 
 
 § 18. Further illustration of this liability. — In 1774, in 
 an action where it appeared that a municipal corporation 
 had neglected to dig out a navigable creek which had 
 been immemorially used, and which had become so much 
 obstructed that plaintiff was prevented from using it, it 
 was held that the corporation was under the duty of 
 keeping the creek in condition for use, and, having neg- 
 lected this, was responsible in damages.^ And in 1788, 
 the principle of liability in the case of a corporation 
 under the duty of repairing a highway was admitted, al- 
 though the liability in the particular case was denied.* So, 
 in 1798, in a Scotch case, where it appeared that a person 
 was injured by falling into an excavation in a street, it 
 was held that the magistrates of the city of Edinburgh 
 had neglected to exercise care to keep the streets of the 
 city in safe condition for use, and were therefore liable 
 for the consequences.* In a leading case, in 1832, the 
 doctrine was extended to cover the neglect of duty of a 
 municipal corporation in failing to repair the banks and 
 seashore, which in its charter it had agreed to keep in re- 
 pair. And since this date numerous cases, to be here- 
 after considered, have carried forward the principle of 
 liability.* Those already cited sufficiently show that mu- 
 
 • Mayor, etc. of Lynn v. Turner, red to, 3 Barn. & Ad. ^^ (1832), Lord 
 Cowper 86. Tenterden says : " But we think the 
 
 2 Russell V. Men of Devon, 2 T. R. obligation to repair the banks and 
 
 667, Infra, % 47. seashores is one which concerns the 
 
 ' Innes v. Magistrates of Edin- public, in consequence of which an 
 
 burgh. Hay, p. 208. indictment might have been main- 
 
 * In the Mayor, etc., of Lyme Regis tained against the plaintiffs in error 
 V. Henley, hereafter more fully refer- for their general default ; from whence 
 
26 
 
 EARLY INSTANCES OF 
 
 §19 
 
 nicipal responsibility for negligence is not a new doctrine, 
 and, moreover, that it is not one that should in its appli- 
 cation be confined to particular subjects. 
 
 § 19. American law. — The courts in this country have 
 always recognized the doctrine of corporate liability for 
 torts,! and the principle of municipal liability for negli- 
 gence has been everywhere conceded.^ But in the 
 
 it follows that an action on the case 
 will lie against them for a direct and 
 particular damage sustained by an in- 
 dividual, as in the ordinary case of 
 nuisance in a highway by a stranger 
 digging a trench, etc., or by the act 
 or default of a person bound to repair 
 ratione tenures. An indictment may 
 be sustained for the general injury to 
 the public, and an action on the case 
 for a special and particular injury to 
 an individual. Pain v. Partridge, 
 Carth. 191, Com. Dig. Action on the 
 case for Negligence (A) 3." And in 
 the Court of Exchequer, i Scott 29 
 (1834), Mr. Justice Park said : " It is 
 admitted that, if their liability arose 
 by prescription, they would be indict- 
 able, and also that an action would lie 
 for special damage, as in the Mayor, 
 etc. of Lynn v. Turner, Cowp. 86 ; 
 Churchman v. Tunstal, Hardes 126; 
 Payne v. Partridge, Shoiv. 255, Carth. 
 191, and many other authorities, 
 which it is unnecessary to cite, be- 
 cause it is clear and undoubted law 
 that, wherever an indictment lies for 
 non-repair, an action on the case will 
 lie at the suit of a party sustaining 
 any particular damage." 
 
 1 Riddle v. Proprietors of Locks, 7 
 Mass. 169 (1810); Mower v. Leicester, 
 9 Mass. 247 (18 1 2); Weld v. Pro- 
 prietors of Side Booms, 6 Gr. (Me.) 
 93 (1829); People V. Albany, 11 
 Wend. 539; Townsend v. Susque- 
 hanna Turnpike Co., 6 Johns R. (N. 
 
 Y.) 90; Bartlett v. Crozier, 17 Johns 
 R. (N. Y.) 438 (1820); Ward V.New- 
 ark, etc. Turnpike Co., Spenc. (N. J.) 
 323 ; Sussex Co. Freeholders v. 
 Strader, 3 Har. (N. J.) (1840); Ed- 
 wards v. Union Bank of Florida, i 
 Fla. 136 (1840); McGarey v. Lafay- 
 ette, 4 La. Ann. 440 {1849). 
 
 * In Anthony v. Inhabitants of 
 Adams, 42 Mass. 284 (1840), Shaw, 
 C. J., says : " We can have no doubt 
 that an action upon the case will lie 
 against municipal corporations, when 
 such corporations are in the execution 
 of powers conferred on them, or in 
 the performance of duties required of 
 them by law, and their officers, serv- 
 ants and agents, shall perform their 
 acts so carelessly, unskilfully or im- 
 properly as to cause damage to 
 others. This falls within the very 
 general principle that the superior or 
 employer shall be answerable civiliter 
 for the mismanagement and negli- 
 gence of the agent employed by him, 
 by which another is damnified. Sut- 
 ton v. Clarke, 6 Taunt. 29. And al- 
 though such action sounds in tort, to 
 mark the distinction between this 
 and an action upon contract, yet the 
 true view of considering it is that ol 
 a legal liability to indemnify another 
 against negligence of one for whom 
 the law holds him responsible. It 
 implies no willful act or intended 
 wrong, and, therefore, requiring no 
 vote or corporate act to create the 
 
§19 MUNICIPAL LIABILITY FOR NEGLIGENCE. 27 
 
 earliest cases qualifications were put upon the doctrine of 
 responsibility for negligence/ and as these were based on 
 an old authority,* and not on principle, much confusion 
 in the cases has resulted. This confusion has been aug- 
 mented by the difficulties in the subject itself occasioned 
 by rapid development of municipalities in the different 
 States, with various powers and duties, and by the promis- 
 cuous citation of cases which have been decided under 
 statutes, and which, therefore, are applicable only where 
 such statutes have force, A few of the older authorities 
 establishing the general rule of liability are given below,^ 
 but for a discussion of this particular question reference 
 must be had to the following pages. In a consideration 
 of all these questions it is important to bear in mind that 
 the duty to exercise care to be effective must exert its 
 authority over every independent member of society, and 
 in so far as any corporation is freed from responsibility 
 for violating this duty, to that extent individuals lose 
 their natural right of personal safety. The importance 
 of holding private corporations to the discharge of this 
 duty was quickly recognized, but that it is an equally 
 
 liability, it may as well lie against a Chancellor Kent in Bartlett v. Crozier, 
 
 corporation as an individual person." 17 Johns R. (N. Y.) 438 (1820), is fre- 
 
 Compare with supra, % 14. quently quoted to sustain these quali- 
 
 See also Thayer v. Boston, 36 fications. From a reading of this 
 Mass. 511 (1837); Baker v. Boston, opinion, however, it appears that the 
 29 Mass. 184 (1831); New York v. decision was confined to the non- 
 Furze, 3 Hill 612 (1842); Rochester liability of an overseer of a highway 
 White Lead Co. v. Rochester, 3 for negligence, and that the chancel- 
 Comst. (N. Y.) 463 (1850); Lloyd v. lor concedes that an action will lie in 
 New York, i Seld. 369 (1851); Hut- "such cases as those mentioned by 
 son V. New York, 5 Seld. (N. Y.) 163 Lord Coke, in which an individual or 
 (1853); Walling V. Shreveport, S La. a corporation maybe bound to repair 
 Ann. 660 (1850); Wilde v. New Or- a private bridge or a public bridge by 
 leans, 12 La. Ann. 15 (1857). reason of tenure or prescription or 
 
 ' Mower v. Leicester, 9 Mass. 247 the grant of the toll." 
 
 (1812); Sussex Co. Freeholders v. "" Russell v. Men of Devon, 2 T. R. 
 
 Strader, 3 Har. (N. J.) 108 (1840). 667; infra, §47- 
 
 In the early cases the opinion of * See n. 2, p. 26. 
 
28 MUNICIPAL LIABILITY FOR NEGLIGENCE. § ig 
 
 important matter to save the rights of the individual 
 from violation by public corporations has not been so 
 generally observed. That it is so needs no proof beyond 
 the daily occurrences in our cities, and it is believed that 
 this fact should not be lost sight of, but that it should 
 have a practical bearing upon every question concerning 
 the negligence of these corporations. And that the ex- 
 emption from liability in their favor should be kept 
 within the narrowest limits consistent with a free, inde- 
 pendent, and effective use of governmental powers. 
 
CHAPTER III. 
 
 DUAL CHARACTER OF MUNICIPAL CORPORATIONS. 
 
 § 20. Definition of municipal corporation. 
 
 21. Negligence cannot be imputed to the State. 
 
 22. Divisional branches of the State government. 
 
 23. Incorporated branches of a State government. 
 
 24. Diverse duties of a municipality. 
 
 25. Test for determining character of duty. 
 
 26. Application of test. 
 
 § 20. Definition of municipal corporation. — A municipal 
 corporation is the corporate body formed by " investing 
 the people of a place with the local government thereof," ^ 
 and the purposes for which it is formed ordinarily are, to 
 assist the general government in administering the laws 
 and to benefit the people of the particular locality that is 
 
 ' See Cuddon v. Eastwick, i Salk. and proper sense just mentioned ; but 
 
 193. sometimes it is used in a broader 
 
 Dillon says: "We may, therefore, sense,that includes also public or quasi 
 define a municipal corporation, in its corporations, the principal purpose of 
 historical and strict sense, to be the whose creation is as an instrumental- 
 incorporation, by the authority of the ity of the State, and not for the regu- 
 government, of the inhabitants of a lation of the local and special affairs 
 particular place or district, and author- of a compact community." Munic. 
 izing them in their corporate capacity Corp., § 20, citing authorities, 
 to exercise subordinate specified Under the Municipal Corporation 
 powers of legislation and regulation Act of 1882, "'municipal corporation ' 
 with respect to their local and internal means the body corporate constituted 
 concerns. This power of local gov- by the incorporation of the inhabitants 
 ernment is the distinctive pur- of a borough." English Municipal 
 pose and the distinguishing fea- Code, Williams & Vine, p. 25. 
 ture of a municipal corporation. By an " Act respecting Municipal 
 The phrase ' municipal corporation ' Institutions " (Canada), R. S. O. cap. 
 is used with us in general in the strict 184, it is provided "(i) ' Municipality ' 
 
30 DUAL CHARACTER OF § 21 
 
 incorporated. Throughout this book the phrases, munic- 
 ipal corporation and municipality, are used synonymously, 
 to include every territorial division of a State possessing 
 powers of local government, whether or not it is in the 
 full sense a corporation. 
 
 § 21. Negligence cannot be imputed to the State. — 
 For their protection and advantage men create gov- 
 ernments and determine where the sovereign power 
 shall rest. When this has been done all principles of 
 justice and all rules of conduct must look to the sovereign 
 power of the established government for recognition and 
 enforcement. This power, therefore, is the arbiter in 
 regard to such questions, and, from reasons of public 
 policy, is not to be governed by the principles to which 
 individuals must conform their actions. It stands as the 
 representative of these principles of justice, and the prop- 
 erty held by it is held for the general welfare, and cannot 
 be taken from it without its consent.^ In England it 
 has been from time out of mind a settled maxim that the 
 king can do no wrong,^ and, while it is held that this 
 maxim has no application either to the United States 
 
 shall mean any locality the inhabitants of the State established by law with 
 of which are incorporated, or are con- powers of local government." 
 tinued, or become so under this Act," ' United States v. Lee, io6 U. S. 
 and "(3) The inhabitants of every 196 (1882); Railroad Co. v. Tennes- 
 county, city, town, village, township, see, loi U. S. 337 (1879); Railroad 
 union of counties, and union of town- Co. v. Alabama, loi U. S. 832 ; Sip- 
 ships, incorporated at the time this pie v. State, 99 N. Y. 284 (1885); 
 Act takes effect, shall continue to be a Lewis v. State, 96 N. Y. 71 (1884); 
 body corporate, with the municipal People v. Miles, 56 Cal. 401 (1880) ; 
 boundwies of every such corporation Chicago, etc. Railway Co. v. State, 53 
 respectively then established." Har- Wis. 509 {1881) ; Tate v. Salmon, 79 
 rison's Munic. Manual, pp. 7, 9. Ky. 540 (1881). 
 
 The General Corporation Law of « Blackstone's Commentaries, book 
 New York, 1891, § 2, provides: "A i, chap, vii., p. 244. As to the ex- 
 municipal corporation includes a emption of the Crown and its officers 
 county, town, school district, village, see Beven on Negligence, 236 ; con- 
 city, and any other territorial division suit Stat. 50 & 51 Vict., chap, xvi., 
 
 §16. 
 
§ 22 MUNICIPAL CORPORATIONS. 3 1 
 
 government or to the State governments,* yet the result 
 remains that these sovereign powers cannot be held 
 responsible for any wrong, unless they shall so choose.^ 
 The practical effect of the decisions, therefore, is to leave 
 the maxim in full force in this country, and as it undoubt- 
 edly means only that the king cannot be held responsible 
 at law for any claimed wrong, it would seem in theory to 
 state the general rule in regard to the sovereign powers 
 of this country. 
 
 § 22. Divisional branches of State governments. — In 
 order that the State may perform its functions it is 
 necessary for it to be represented by agencies of govern- 
 ment, and therefore the territory of the State is subdi- 
 vided into numerous parts. These agencies are repre- 
 sentative of the sovereign power in the various localities 
 where they exist ; and where they merely perform the 
 governmental functions of the State and acquire no 
 individual corporate existence, to hold them responsible 
 for negligence would manifestly be the same as holding 
 the sovereign power answerable for its action. Such 
 unincorporated agencies occupy the same position as the 
 State itself, and are protected by the principle which 
 gives freedom of responsibility to the State. This prin- 
 ciple is fully sustained by the authorities, as will be seen 
 hereafter, but the ground upon which it rests has not 
 always been clearly recognized, and much difficulty has 
 arisen in applying it to particular cases. 
 
 ' Miller, J., referring to this maxim im has any existence in this coun- 
 
 that the king can do no wrong, in try." 
 
 Langford v. United States, loi U. S. "- People v. Dennison, 84 N. Y. 272 
 
 341 (1879), says : " We do not under- (1881) ; Fish v. Dodge, 38 Barb. N. Y. 
 
 stand that either in reference to the 163 (1862) ; State v. Hill, 54 Ala. 67 
 
 government of the United States, (1875) ; Beers v. Arkansas, 20 How. 
 
 or of the several States, or of any (U. S.) 527 (1857); see note i, supra,- 
 
 of their officers, the English max- Sherman & Redfield on Negligence, 
 
 §251- 
 
,2 DUAL CHARACTER OF § 23 
 
 § 23. Incorporated branches of a State government in 
 different position.— When any State agency becomes a 
 corporation, it thereby acquires an identity distinct from 
 the sovereign power, and the principle stated does not 
 prevent the incorporated body from being held liable 
 for its own negligence. This new corporation is not the 
 supreme power of the State and does not in all things 
 represent that power. It is a separate corporate body, 
 endowed by the State with life and power, and ordi- 
 narily given the right to acquire property and to exer- 
 cise certain individual functions. By these rights and 
 privileges the corporation acquires strength and influence 
 in the State, That one purpose of the incorporation of 
 cities, towns, and villages is to aid in the government of 
 the State cannot be doubted, and that the State has the 
 power of altering, and even annulling, the charter of any 
 such incorporated body at pleasure is thoroughly well 
 settled. But this latter power the State ordinarily 
 reserves to itself in respect to private corporations, and 
 such bodies are none the less distinct individualities so 
 long as the State refrains from exercising its reserved 
 power. And that although one purpose of the forma- 
 tion of cities is that thus the State may best govern its 
 subjects, the fact should not be lost sight of that the 
 right of individual existence is conferred upon these 
 bodies, whereby they gain much benefit and which 
 necessarily gives rise to individual duties. In practice 
 many individual rights are conferred upon municipalities, 
 and in the exercise of these rights there is no reason 
 why they should be relieved from the general rule requir- 
 ing the use of reasonable care, for this rule must govern 
 the conduct of every individual and every corporation. 
 Although it has been recently said that " it is a depart- 
 ure from principle to hold a governmental agency liable 
 
24 
 
 MUNICIPAL CORPORATIONS, 
 
 33 
 
 unless it is expressly made liable by statute," ^ we can 
 discover no principle and no sufficient authority for the 
 proposition, which in effect allows municipal corporations 
 to escape from the necessity of respecting the rights of 
 individuals. But the rights and privileges of the mu- 
 nicipality are only such as are conferred upon it by the 
 legislature ; and in order to determine what duties or obli- 
 gations rest upon it, in any particular case, the charter 
 or statute conferring the powers must be examined, for 
 it is only such duties as fairly, arise from the powers 
 granted that the law will place upon these corporations.^ 
 
 § 24, Diverse duties of incorporated municipalities. — 
 Every incorporated municipality, therefore, has a dual 
 character. On the one hand, it is an agency of the 
 
 ' Elliott on Roads and Streets, p. 42, 
 citing Detroit v. Blakeby, 2 1 Mich. 84 ; 
 Navasota v. Pearce, 46 Texas 525. 
 See, however, Galveston v. Posnain- 
 sky, 62 Texas 118. 
 
 ^ In Laramie County v. Albany 
 County, 92 U. S. 307 (1875), Mr. 
 Justice Clifford says : 
 
 " Counties, cities, and towns are 
 municipal corporations, created by 
 the authority of the legislature ; and 
 they derive all their powers from the 
 source of their creation except where 
 the constitution of the State other- 
 wise provides. Beyond doubt, they 
 are, in general, made bodies politic 
 and corporate ; and are usually in- 
 vested with certain subordinate legis- 
 lative powers to facilitate the due 
 administration of their own internal 
 affairs, and to promote the general 
 welfare of the municipality. They 
 have no inherent jurisdiction to make 
 laws, or to adopt governmental regu- 
 lations, nor can they exercise any 
 other powers in that regard than such 
 as are expressly or impliedly derived 
 3 
 
 from their charters or other statutes 
 of the State. 
 
 " Trusts of great moment, it must 
 be admitted, are confided to such 
 municipalities ; and in turn they are 
 required to perform many important 
 duties, as evidenced by the terms of 
 their respective charters. Authority 
 to effect such objects is conferred by 
 the legislature ; but it is settled law 
 that the legislature, in granting it, 
 does not divest itself of any power 
 over the inhabitants of the district 
 which it possessed before the charter 
 was granted. Unless the constitu- 
 tion otherwise provides, the legisla- 
 ture still has authority to amend the 
 charter of such a corporation, enlarge 
 or diminish its power, extend or limit 
 its boundaries, divide the same into 
 two or more, consolidate two or 
 more into one, overrule its action 
 whenever it is deemed unwise, im- 
 politic, or unjust, and even abolish 
 the municipality altogether in the 
 legislative discretion." 
 
 See infra, Chap. XIX. 
 
_34 DUAL CHARACTER OF § 24 
 
 State performing governmental and political duties 
 which the State voluntarily takes upon itself to discharge 
 to its subjects, and on the other it is a distinct individu- 
 ality with personal privileges and rights which give rise 
 to personal requirements and duties.^ And as the State 
 assumes no liability in the discharge of governmental 
 duties, the city as the representative of the State in this 
 respect assumes no liability in the discharge of such 
 duties, and the general rule results that a municipal cor- 
 poration is not liable to any individual who has been 
 damaged by its failure to properly discharge a govern- 
 mental duty. But as every corporation is responsible 
 for the discharge of its individual duties, so a municipal 
 corporation is liable to any individual who has been dam- 
 aged by its failure to properly discharge a municipal or 
 private duty. And it would seem proper that this rule 
 should extend to every independent State agency, what- 
 ever its importance, for there is no reason why such a 
 corporation, when it is not engaged in the performance 
 of governmental duties, should be controlled by a rule 
 
 1 " There are two kinds of duties power involves, a municipality is like 
 
 which are imposed upon a municipal a private corporation and is liable for 
 
 corporation : one is of that kind a failure to use its power well, or for 
 
 which arises from the grant of a spe- an injury caused by using it badly, 
 
 cial power, in the exercise of which But where the power is intrusted to it 
 
 the municipality is as a legal Individ- as one of the political divisions of the 
 
 ual ; the other is of that kind which State, and is conferred not for the 
 
 arises, or is implied from the use of immediate benefit of the municipality, 
 
 political rights under the general law, but as a means to the exercise of the 
 
 in the exercise of which it is as a sov- sovereign power for the benefit of all 
 
 ereig^. The former power is private citizens, the corporation is not liable 
 
 and is used for private purposes ; the for nonuser nor for misuser by the 
 
 latter is public and is used for public public agents." Folger, C. J., inMaxi- 
 
 purposes. The former is not held by milian v. New York, 62 N. Y. 160. 
 
 the municipality as one of the political The distinct character of these 
 
 divisions of the State ; the latter is. duties is commented on in many of 
 
 In the exercise of the former power, the authorities cited subsequently.- 
 
 and under the duty to the public See Chapters IV. and V. 
 
 which the acceptance and use of the » 
 
§ 25 MUNICIPAL CORPORATIONS. 35 
 
 designed to apply only when governmental powers are 
 exercised. If, therefore, a county or town is incorpora- 
 ted, it should be responsible in damages to any one who 
 has been injured by its negligent discharge of every duty 
 which is not solely governmental ; and the same principle 
 which determines the liability of one public corporation 
 should be called upon to decide whether another similar 
 body is not also liable. In each case the question is, 
 has a corporate body distinct from the State failed in the 
 performance of an individual duty ? If it has, the rule re- 
 quiring the exercise of reasonable care has been violated 
 aad the foundation is laid for an action of negligence. 
 
 While it is believed that these are the principles that 
 must decide every question of a violation of duty by 
 a public corporation, it must be conceded that the 
 authorities are not united in their support, for it is often 
 stated that a majority of the cases hold that one rule ap- 
 plies to the negligence of municipal corporations proper, 
 and quite a different one to the negligence of quasi 
 corporations. 
 
 In this unsettled state of the law, and it being clear 
 from the books that there is a sharp discussion in prog- 
 ress as to what are governmental and what municipal 
 duties, it is necessary to consider the authorities in detail. 
 
 § 25. Test for determining whether duty is governmental. 
 — It is submitted that every governmental duty involves 
 the exercise of governmental functions and is a voluntary 
 obligation which the State attempts to perform for the 
 public welfare in such a manner as it shall deem wise. 
 In considering whether, in the performance of any par- 
 ticular act, a public body is discharging an obligation of 
 this character, it must be discovered whether its perform- 
 ance requires the exercise of State or governmental func- 
 tions. If it does, even though the obligation is tQ be 
 
26 DUAL CHARACTER OF § 25 
 
 discharged by an incorporated municipality, there is no 
 civil responsibility for neglect to exercise reasonable care 
 in regard to its performance. But where the State im- 
 poses a ministerial duty upon a distinct municipality, or 
 where such a duty arises from the common relations of 
 life, it must be carefully discharged, and if there is a fail- 
 ure to exercise reasonable care, the corporation will be 
 liable for the damage occasioned thereby. So it is be- 
 lieved that every municipal corporation should be liable 
 for its negligent management of property, whether real 
 or personal, owned by it. Often it will be seen that in 
 the discharge of municipal duties the corporation has 
 some personal and pecuniary interest, and whether there 
 was such an interest in the performance has sometimes 
 been made the test of the character of the duty. But 
 even if there is no pecuniary profit to be derived by a 
 municipal corporation from the performance of the duty 
 which attaches to every owner of similar property, it is 
 believed that true principle and the weight of authority 
 hold such a duty to be municipal and not governmental. 
 An illustration of a duty of this character is found in the 
 obligation resting upon cities with respect to their sew- 
 ers. From these ordinarily they derive no pecuniary 
 benefit, and it is difficult if not impossible to say that the 
 benefit which is derived from the performance of this 
 duty is of any different character from that which accrues 
 from the performance of the governmental obligation to 
 protect property from fire. But the duty to keep sew- 
 ers in repair is recognized to be a municipal duty, for the 
 violation of which an action will lie. And the true 
 ground upon which this duty rests is that the corporation 
 is the owner of its sewers, and, as such, stands as any 
 owner would stand. It is to be noticed that, as will 
 be shown in a subsequent chapter, in providing a sys- 
 tem of sewerage, a municipality acts as a representative 
 
§ 26 MUNICIPAL CORPORATIONS. 2)1 
 
 of the State, and that it is only for negligence in the dis- 
 charge of its municipal duties that an action will lie. 
 
 § 26. Application of test. — The application of the fore- 
 going test for determining whether a duty is govern- 
 mental if applied to the many authorities upon this sub- 
 ject, discloses three classes of duties which require con- 
 sideration, namely : Solely Governmental Duties, 
 Solely Municipal Duties, and Municipal Duties 
 
 RELATING TO GOVERNMENTAL AfFAIRS. In the first of 
 
 these classes it will be seen that there is ordinarily no 
 civil liability for negligent performance, that in the sec- 
 ond there is universally conceded to be such a liability, 
 and that in the third there is much difficulty in drawing 
 lines of demarcation, but that principle and the weight of 
 authority unite in upholding the rule of liability wherever 
 the violated duty is itself municipal, although it may con- 
 cern governmental matters. 
 
 These classes will now be considered with reference to 
 the authorities. 
 
CHAPTER IV. 
 
 NO LIABILITY RESPECTING SOLELY GOVERNMENTAL 
 
 DUTIES. 
 
 § 27. Nature of solely governmental duties. 
 
 28. Instances of governmental duties : keeping the peace. 
 
 29. Enforcing laws and ordinances. 
 
 30. Preserving the public health. 
 
 31. Preventing destruction by fire. 
 
 32. Punishing criminals and wrong-doers. 
 
 33. Caring for the poor. 
 
 34. Educational work. 
 
 35. Decision by municipality upon discretionary matters. 
 
 § 27. Nature of solely governmental duties. — We have 
 said that a duty is solely governmental when it involves 
 the exercise of governmental power, and is assumed by 
 the State exclusively for the benefit of the public. Such 
 a duty requires the exercise of the privileges of sover- 
 eignty, and is beyond the realm of legal duties. It is as- 
 sumed for the protection or benefit of all citizens, and in 
 its performance even an incorporated representative of 
 the State is not hampered by the rule of responsibility 
 to individuals. No legal duty to perform these obliga- 
 tions rests upon such a municipality, and their character 
 precludes the idea of the common-law rule of responsi- 
 bility, for there is no standard of reasonable care by 
 which the acts of the government may be tested. The 
 State acts in its sovereign capacity, and does not submit 
 its actions to the judgment of the courts. It gives such 
 protection from law-breakers, from fire, from disease, 
 and from other common evils, as the power, energy, and 
 
§ 28 SOLELY GOVERNMENTAL DUTIES. 
 
 39 
 
 faithfulness of the government shall compass. And if, 
 in any particular instance, an individual is injured by an 
 unsatisfactory performance of xits assumed duties, he must 
 seek other remedies than his action for damages. The 
 wisdom of this rule is seen also in the fact that these 
 solely governmental duties could not be adequately dis- 
 charged if the fear of responsibility for damage was con- 
 stantly present to those who were acting for the public 
 good. The exemption, however, should extend only so 
 far as is necessary for freedom in governmental action, 
 and the individual should lose his remedy against an in- 
 corporated municipality only when it is engaged in gov- 
 ernmental acts.^ 
 
 § 28. Instances of governmental duties ; keeping the 
 peace. — The moral duty of preserving order and prevent- 
 ing injury to the person or property of its citizens rests 
 upon the State and upon all municipalities that act for 
 the State. Police officers of a city represent the power 
 of the State, and act solely in relation to the govern- 
 mental duty of the State to preserve order.* A munici- 
 pal corporation, therefore, is not liable for the negligence 
 of one of its policemen in the performance of his duty ; ' 
 and where a police officer, in attempting to shoot a dog 
 
 'See upon this subject: Dillon ton, 83 Mass. 417 (1863) ; Rusher v. 
 
 Munic. Corp., vol. ii., §§974-979; Dallas, 18. S. W. Rep. 333; Dillon on 
 
 Sherman & Redfield on Neg., vol. i., Munic. Corp., § 975. See also Perkins 
 
 §§ 260-267; Bishop on Non-Contract v. New Haven, 53 Conn. 214 (1885). 
 
 Law, §749; Am. & Eng. Encyc. ' Calwell v. Boone, 51 la. 687 
 
 of Law, vol. II, p. 1145; Stack- (1879) ; Pollock v. Louisville, 13 Bush, 
 
 house v. Lafayette, 89 Am. Dec. 45°; (Ky.) 221 (1877) ; McElvoy v. Albany, 
 
 Lloyd v. New York, 55 Am. Dec." 65 Ga. 387 ; Harris v. Atlanta, 62 Ga. 
 
 347, note; Perry v. Worcester, 66 290 (1879) ; Elliott v. Philadelphia, 75 
 
 Am. Dec. 431, note. Pa. 347, IS Am. Rep. 591 (1S74) ; 
 
 ^ Kies V. Erie, 135 P^. 144, 19 Atl. Altvater v. Baltimore, 31 Md. 462 
 
 Rep. 942 (1890) ; Norristown v. Fitz- (1869) ; Cobb v. Portland, 55 Me. 
 
 Patrick, 94 Pa. 121 ; Cranston V. Au- 3S1 (1868); Dargan v. Mobile, 31 
 
 gusta, 61 Ga. S72 (1872) ; Buttrick v. Ala. 469, 70 Am. Dec. 505 (1858). 
 
 Lowell, 83 Mass. 172; Kimball v. Bos- See note 2, supra. 
 
40 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 28 
 
 running at large upon a city street, contrary to a city 
 ordinance, carelessly wounded a person on the sidewalk, 
 it was held that there was no liability on the part of the 
 city for the injury.^ A city, however, as owner of the 
 
 ' Culver V. Streator, 130 111. 238, 6 
 L. R. A. 270 (1889). In this case 
 Mr. Justice Bailey says : " The third 
 count alleges that the injury was 
 caused by the negligent and careless 
 acts of the servants of the city while 
 destroying dogs running at large con- 
 trary to a city ordinance ; and the 
 first and second counts allege, in sub- 
 stance, that the injury was caused by 
 the negligent and careless acts of 
 servants hired and employed by the 
 city to shoot and kill dogs at large in 
 the city, and which had not been by 
 it duly licensed. The matter of re- 
 straining and regulating the running 
 at large of dogs by a municipal cor- 
 poration manifestly pertains to the 
 police power. That power may be 
 defined, in general terms, as compre- 
 hending the making and enforcement 
 of all such laws, ordinances, and regu- 
 lations as pertain to the comfort, 
 safety, health, convenience, good 
 order, and welfare of the public, and 
 all persons officially charged with the 
 execution and enforcement of such 
 police ordinances and regulations are, 
 quoad hoc, police officers 
 
 " Police officers appointed by the 
 city are not its agents or servants 
 so as to render it responsible for their 
 unlawful or negligent acts in the dis- 
 charge of their duties. Accordingly, 
 it has been held that a city is not lia- 
 ble for an assault and battery com- 
 mitted by its police officers, though 
 done in an attempt to enforce an 
 ordinance of the city (Buttrick v. City 
 of Lowell, I Allen 172); nor for illegal 
 and oppressive acts of officers com- 
 mitted in the administration of an 
 
 ordinance (Board of Trustees [Odell] 
 v. Schroeder, 58 111. 353); nor for an 
 arrest made by them which is illegal 
 for want of a warrant (Pollock's Ad- 
 ministrators V. City of Louisville, 13 
 Bush 221 ; Cook v. City of Macon, 54 
 Ga. 468 ; Harris v. City of Atlanta, 
 62 Id. 290); nor for their unlawful 
 acts of violence, whereby, in the exer- 
 cise of their duty in suppressing an 
 unlawful assemblage, an injury is done 
 to the property of an individual (Stew- 
 art V. New Orleans, 9 La. Ann. 461, 
 61 Am. Dec. 218 ; Dargan v. City of 
 Mobile, 31 Ala. 469). 
 
 " Upon the same principle, it has 
 been held that a city having power to 
 establish a fire department, to appoint 
 and remove its officers, and to make 
 regulations in respect to their govern- 
 ment and management of fires, is not 
 liable for the negligence of the firemen 
 appointed and paid by it, who, when 
 engaged in the line of their duty, upon 
 an alarm of fire, run over the plaintiff 
 on their way to the fire (Hafford v. 
 New Bedford, 16 Gray 297; Wilcox 
 V. City of Chicago, 107 111. 334); nor 
 for the injury to the plaintiff caused 
 by the bursting of a hose of one of the 
 engfines of the city, through the negli- 
 gence of a member of the fire depart- 
 ment (Fisher v. City of Boston, 104 
 Mass. 87); nor for negligence whereby 
 sparks from the fire engine of the city 
 caused the plaintiff's property to be 
 burned (Hays v. City of Oshkosh, 33 
 Wis. 314). . . . 
 
 " The ground upon which the fore- 
 going cases, and many others of like 
 nature, are admitted as exceptions to 
 the general rule of corporate liability, 
 
28 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 41 
 
 building occupied as a police station, has been held liable 
 for damages occasioned to one by the negligence of a 
 policeman in leaving open a trap-door covering a cellar- 
 way, leading from the sidewalk into the police station.^ 
 It is well settled that a municipal corporation is not liable 
 in the absence of a statute^ creating the liability for 
 injuries caused by a mob, the duty of suppressing such 
 an outbreak being a governmental duty.^ 
 
 is that in those matters the city acts 
 only as the agent of the State, in the 
 discharge of duties imposed by law 
 for the promotion and preservation of 
 the public and general welfare, as 
 contradistinguished from mere cor- 
 porate acts, having relation to the 
 management of its corporate or pri- 
 vate concerns, and from which it de- 
 rives some special or immediate ad- 
 vantage or emolument in its corporate 
 or private character. 
 
 " The police regulations of a city 
 are not made or enforced in the in- 
 terest of the city in its corporate capac- 
 ity, but in the interest of the public. 
 A city, therefore, is not liable for the 
 acts of its officers in attempting to 
 enforce such regulations (Caldwell v. 
 Boone, 51 Iowa 687 ; Prather v. Lex- 
 ington, 13 B. Mon. 559; Elliott v. 
 Philadelphia, 75 Pa. St. 347 ; Board 
 of Trustees v. Schroeder, supra). 
 
 " The injuries complained of in the 
 declaration having been caused by the 
 negligence of an officer or employee 
 of the city while attempting to enforce 
 a police regulation, the maxim re- 
 spondeat superior Aots not apply, and 
 the demurrer to the declaration there- 
 fore was properly sustained." 
 
 Compare with McKay v. Buffalo, 9 
 Hun (N. Y.) 401, affi'd 74 N. Y. 619 
 (1876). 
 
 1 Carrington v. St. Louis, 89 Mo. 
 208, 4 W^ Rep. 681 (1886). See in- 
 fra, Chap. XVII. 
 
 '' These statutes frequently exist. 
 See Sherman & Redfield on Neg., 
 §§ 254, 261 ; Louisiana ex rel. Folsom 
 v. New Orleans, 109 U. S.285 (1883); 
 Clear Lake W. W. Co. v. Lake County, 
 45 Cal. go (1872); Jolly v. Hawesville, 
 II Ky. 477, 12 S. W. Rep. 313 (1889); 
 Brightman v. Bristol, 65 Me. 426, 20 
 Am. Rep. 711 (1876); Allegheny 
 County V. Gibson, 90 Pa. 397, 35 Am. 
 Rep. 670 (1879); Baltimore v. Poult- 
 ney, 25 Md. 107 (1866); Chadboume 
 V. New Castle, 48 N. H. 196 (1868); 
 Underbill v. Manchester, 45 N. H. 
 214 (1864); Darlington v. New York, 
 31 N. Y. 164 (1865); Atchison v. 
 Twine, 9 Kas. 350 (1872); Fauvia v. 
 New Orleans, 20 La. Ann. 410 (1868). 
 
 ' In Hart v. Bridgeport, 13 Blatch. 
 289 (1876), Shipman, J., says : "The 
 principal difficulty which courts have 
 experienced has been in ascertaining 
 clearly and accurately the line of de- 
 marcation between public govern- 
 mental duties and private or corporate 
 duties, and has not been in the de- 
 termination of the question, whether, 
 for a refusal to discharge public du- 
 ties, the corporation was or was not 
 liable. Public duties are, in general, 
 those which are exercised by the State 
 as a part of its sovereignty, for the 
 benefit of the whole public, and the 
 discharge of which is delegated or im- 
 posed by the State upon the municipal 
 corporation. They are not exercised 
 either by the State or the corporation 
 
42 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 29 
 
 § 29. Enforcing laws and ordinances. — Municipalities 
 are also free from liability to individuals, because of 
 failure to enforce the laws and ordinances which have 
 been adopted by them,^ the enforcement of laws being a 
 part of the prerogative of the sovereign. Thus, where 
 an ordinance was adopted forbidding the use of fireworks, 
 and damage results to an individual from their use, he 
 cannot hold the municipality liable for his loss.* And 
 where the city of Albany was required by its own ordi- 
 nance to remove sunken.vessels from a certain portion 
 of the Hudson River, and failed to do so, and injury re- 
 sulted to one who was navigating the river, it was held 
 that the city was not liable in damages.^ So it was held, 
 many years ago, that a city could not be made responsi- 
 ble for the damage resulting from injuries inflicted by- 
 swine running at large upon a city street, contrary to an 
 
 for its own emolument or benefit, but 
 for the benefit and protection of the 
 entire population 
 
 "Private or corporate powers are 
 those which the city is authorized to 
 execute for its own emolument, and 
 from which it derives special advan- 
 tage, or for the increased comfort of 
 its citizens, or for the well-ordering 
 and convenient regulation of particu- 
 lar classes of the business of its in- 
 habitants, but are not exercised in the 
 discharge of those general and rec- 
 ognized duties which are undertaken 
 by the government for the universal 
 benefit. 
 
 " Such being the general distinction 
 between governmental and corporate 
 duties, there has never been any dif.^ 
 ference of opinion as to the class 
 within which the preservation of the 
 peace and the protection of property 
 belongs. The duty has universally 
 been considered to be of a public na- 
 ture. It is discharged, in general, by 
 
 the police force of the State or city. 
 These officers are officers of the law, 
 whose appointment is delegated to 
 the city by the State, in order that 
 this general duty may be easily and 
 conveniently performed, and are not, 
 in the exercise or in the non-exercise 
 of their police powers, agents or ser- 
 vants of the city." See Western, etc. 
 College V. Cleveland, 12 Ohio 375 
 (1S61). 
 
 ' Towle V. Alexandria, 3 Peters (U. 
 S.) 398 (1830) ; Wheeler V. Plymouth, 
 116 Ind. 158 (1888); Kistner v. Indian- 
 apolis, 100 Ind. 210(1884); Trammell 
 V. Russellville, 34 Ark. 105 ; Forsyth 
 V. Atlanta, 45 Ga. 152 (1872) ; Odell 
 V. Schroeder, 58 111. 353. 
 
 ' McDade v. Chester, 117 Pa. 414 
 (1887). 
 
 *Coonley v. Albany, 57 Hun (N. 
 Y.) 327 (1890), citing Stillwell v. New 
 York, 49 N. Y. Super. Ct. 360, affi'd 
 96 N. Y. 649. 
 
30 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 43 
 
 ordinance of the city.^ And if damage is occasioned by 
 the use of fireworks, in violation of a city ordinance, 
 there is no liability on the part of the city.* And there 
 is no liability for failure to abate a nuisance.^ 
 
 § 30. Preserving the public health. — The State is charged 
 with the moral duty of guarding the public health for 
 the good of all, but is under no legal constraint in dis- 
 charging this obligation. The performance of it benefits 
 the public only, and no action will lie against the State 
 or its representative when there is an entire failure to 
 perform the duty, or a negligent act committed in an at- 
 tempt to perform it. A city, therefore, is not responsi- 
 ble for the negligence of members of its board of health,* 
 
 ' Levy V. New York, i Sandf. 465 
 (1848). See Kelly v. Milwaukee, 18 
 Wis. 83 (1864). 
 
 " Ball V. W^oodbine, 61 la. 83, 47 
 Am. Rep. 805 (1883) ; Norristown v. 
 Fitzpatrick, 94 Pa. 121 ; Morrison v. 
 Lawrence, 98 Mass. 219 (1867) ; Boy- 
 Ian V. New York, i Sandf. (N. Y.) 
 27 (1847). Compare infra, p. 62, n. 3. 
 
 ' James v. Harrodsburg (Ky.), 3 S. 
 W. Rep. 13s, 8 Am. & Eng. R. Cas. 
 404 (1887); Armstrong v. Brunswick, 
 79 Mo. 319 (1883) ; Davis v. Mont- 
 gomery, 51 Ala. 139. Compare infra, 
 
 §35- . 
 
 * Bryant v. St. Paul, 33 Minn. 289 
 (1885), in which case it appeared that 
 the board of health of a city had al- 
 lowed a privy vault to remain open to 
 injury of plaintiff, and the court said : 
 '' The question, then, presented for 
 our consideration is whether the al- 
 leged negligence of the board created 
 a corporate liability as against the 
 city. The duty is imposed by the 
 legislature upon the board of health, 
 under the police power, to be exer- 
 cised for the benefit of the public gen- 
 erally. It is one in which the city cor- 
 
 poration has no particular interest, 
 and from which it derives no special 
 benefit in its corporate capacity. And 
 we think it clear that, as respects an 
 agency thus created for the public 
 service, the city should not be held 
 liable for the manner in which such 
 service is performed by the board. 2 
 Dillon, Mun. Corp. S. 976, (S. 774) 
 etc. It is bound to discharge its offi- 
 cial duty, not by virtue of its respon- 
 sibility to the municipality, but for the 
 general welfare of the community, 
 and no action will lie against the city 
 for the acts of the board unless given 
 by statute. Fisher v. Boston, 104 
 Mass. 87 ; Hayes v. City of Oshkosh, 
 33 Wis. 314; City of Richmond v. 
 Long, 17 Grat. 375; Maximilian v. 
 Mayor, 62 N. Y. 160 ; Ogg v. City of 
 Lansing, 35 Iowa 495 ; Welsh v. Vil- 
 lage of Rutland, 56 Vt. 228 ; Tindley 
 V. Salem, 137 Mass. 171 ; Condict v. 
 Mayor, 46 N. J. Law 157; s. C. 19 
 Cent. Law J. 213, and cases cited; 
 Smith V. City of Rochester, 76 N. Y. 
 506. The duties of such officers are 
 not of that class of municipal or cor 
 porate duties with which the corpora 
 
44 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 or for the negligent discharge of the duty to care f 
 those in a public hospital.^ And a county is not liab 
 for the carelessness of a physician employed by tl 
 county to treat the poor sick of the county.^ 
 
 § 31. Preventing destruction by fire. — It is obvious th; 
 the prevention of damage by fire is a matter in whic 
 every lawful citizen is interested and one in regard 1 
 vi^hich the powers of the government may be effective 
 used. It is equally clear that the government is undi 
 no legal duty to protect its citizens from this evil, ar 
 that whatever it does to combat it, is undertaken for tl 
 public good alone. And this consideration ^ was sufficiei 
 
 tion is charged in consideration of 
 charter privileges, but are police or 
 governmental functions, which could 
 be discharged equally well through 
 agents appointed by the State, though 
 usually associated with and appointed 
 by the municipal body. The nature 
 of the duties as public are the same 
 in either case." See also Threadgill 
 V. Anson County, 99 N. C. 352 (1888) ; 
 Ogg V. Lansing, 35 la. 495, 14 Am. 
 Rep. 499 (1872) ; Barbour v. Ells- 
 worth, 67 Me. 294; Mitchell v. Rock- 
 land, 52 Me. 118 ; Raymond v. Fish, 
 51 Conn. 80 (1883) ; Forbes v. Board 
 of Health of Escambia Co. (Fla. 
 1891), 44 Alb. L. J. 349. In Aaron v. 
 Broiles, 64 Tex. 316 (1885), a mem- 
 ber of the board of health of a city 
 was held liable for negligence in re- 
 moving a patient with a contagious 
 disease, the court holding that the act 
 of removal was purely a ministerial 
 duty, which should be discharged 
 with care. It is believed, however, 
 that the authorities would not warrant 
 an action against the city for the neg- 
 ligence of employees in the discharge 
 of this duty. See Tormey v. New 
 York, 12 Hun 542 (1872). 
 
 ' Benton v. Trustees of Boston C: 
 Hospital, 140 Mass. 13(1885), in whi 
 case Field, J., said : " The trustees a 
 a body created for the performance 
 a duty, which, under the authority 
 the statute, th* city of Boston h 
 assumed for the benefit of the publ 
 and from the performance of whi 
 no profit or advantage is deriv 
 either by the trustees or the city. T 
 trustees as a corporation are no mc 
 liable for the negligence of their ol 
 cers and agents than the city wov 
 be." See also McDonald v. Ma 
 General Hospital, 120 Mass. 4 
 (1876) ; Brown v. Vinalhaven, 65 ^ 
 402 (1876) ; Murtaugh v. St. Lou 
 44 Mo. 480 (1869); Richmond 
 Long's Adm'r, 17 Gratt. (Va.) 37 
 White V. Marshfield, 48 Vt. 20(187 
 But see Galvin v. Hospital, 12 R. 
 411. 
 
 ' Summers v. Davies County, i 
 Ind. 262 (1885) ; Sherboumev. Yu 
 County, 21 Cal. 113 (1862). 
 
 ' " While I was making a progn 
 in a different part of the province 
 most extensive fire broke out at 1 
 comedia, which not only consunr 
 several private houses, but also t 
 
31 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 45 
 
 to cause municipal corporations to consider the problem 
 in the first century and has caused them to spare no 
 efforts to make their fire departments in recent days 
 painstaking and efficient. The fear of damages for 
 negligence would probably be no additional spur to 
 watchfulness in the performance of their public duty, the 
 benefits of which the careful and the careless alike share, 
 and it would tend to lessen the freedom and effectiveness 
 of the department. The courts agree that this obliga- 
 tion is wholly governmental,^ and in view of the im- 
 portance of its exercise it is held that property may be 
 destroyed when this seems necessary to prevent the 
 spread of a conflagration and the owner will have no 
 redress* unless by statute.^ 
 
 It is quite unanimously held that for a failure to pro- 
 
 public buildings ; the town house and 
 the temple of Isis, though they stood 
 on contrary sides of the street. The 
 occasion of its spreading thus far was 
 partly owing to the violence of the 
 wind, and partly to the indolence of 
 the people, who, manifestly, stood 
 idle and motionless spectators of this 
 terrible calamity. The truth is, the 
 city was not furnished with either 
 engines, buckets, or any single instru- 
 ment suitable for extinguishing fires ; 
 which I have now, however, given 
 directions to have prepared. You 
 will consider, Sir, whether it may not 
 be advisable to institute a company 
 of firemen, consisting only of one 
 hundred and fifty members. I will 
 take care none but those of that 
 business shall be admitted into it, 
 and that the privileges granted them 
 shall not be applied to any other pur- 
 pose. As this corporate body will be 
 restricted to so small a number of 
 members, it will be easy to keep them 
 under proper regulation." Letter of 
 
 Pliny to the Emperor Trajan. Pliny's 
 Letters, Melmoth's translation, re- 
 vised by Bosanquet, page 364. 
 
 ' Edgerly v. Concord, 59 N. H. 78 
 (1879) ; Welsh v. Rutland, 56 Vt. 228 ; 
 Hayes v. Oshkosh, 33 W^is. 314, 14 
 Am. Rep. 706 (1873) ; Howard v. 
 San Francisco, 51 Cal. 52 (1875). 
 
 ^ Bowditch V. Boston, loi U. S. 16 
 (1879) ; Keller v. Corpus Christi, 50 
 Tex. 614(1879); Field V. Des Moines, 
 39 la. 575 (1874) ; Dawson v. Kuttner, 
 48 Ga. 133 (1873) ; American Print 
 Works v. Lawrence, 23 N. J. L. 591 
 (1851); Auckland v. Westminster 
 Local Board, L. R. 7 Ch. 597 ; Sher- 
 man & Redfield on Neg., § 264 ; Dillon 
 on Munic. Corp., § 955. 
 
 3 Bowditch v. Boston, loi U. S. 16 ; 
 McDonald v. Redwing, 13 Minn. 38 
 (1868) ; Ruggles v. Nantucket, 65 
 Mass. 433 (1853) ; Surocco v. Geary, 
 3 Cal. 69; Stone v. New York, 25 
 Wend. 157 (1840); New York v. 
 Pentz, 24 Wend. 668 (1840) ; Dillon 
 on Munic. Corps., §§ 956, 957. 
 
46 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 vide sufificient water ^ or adequate apparatus^ to put c 
 fires a city cannot be held in damages. And where c 
 lisions occur between fire engines or hose-carts and p 
 vate vehicles, it is the rule that no recovery can be h 
 against the city on the ground of careless driving 
 other negligence.^ In some places it is also held thai 
 municipality cannot be made liable for any defects in t 
 property of the corporation used for fire purposes/ b 
 it does not seem necessary or wise to free the corporati( 
 from the duty of exercising care to keep all its proper 
 in such a condition that it will not injure others, ai 
 reference is made to a subsequent chapter where tl 
 subject is more fully discussed.® There is, however, i 
 liability because of careless management by employe 
 of property used by the fire department.^ 
 
 'Tainter v. Worcester, 123 Mass. 
 311, 25 Am. R. 90 (1877), water 
 supply was cut off; Grant v. Erie, 69 
 Pa. 420, 8 Am. R. 272 (1872), fail- 
 ure to construct reservoirs under 
 power; Patch v. Covington, 17 B. 
 Mon. (Ky.) 722 (1856), failure to have 
 cisterns full ; Foster v. Lookout 
 Water Co. and Chattanooga, 3 Lea 
 (Tenn.)42 (1879) ; Black v. Columbia, 
 19 S. C. 412 (1883) ; Van Horn v. Des 
 Moines, 63 la. 447 (1884). 
 
 •> Mendel v. Wheeling, 28 W. Va. 
 233 (1886); Robinson v. Evansville, 
 87 Ind. 334, 44 Am. Rep. 770 (1882) ; 
 Brinkmeyer v. Evansville, 29 Ind. 187 
 (1867) ; Heller v. Sedalia, 53 Mo. 159, 
 14 Am. R. 444 (1873); Davis v. 
 Montgomery, 51 Ala. 139 (1874); 
 Wheeler v. Cincinnati, 19 Ohio St. 19, 
 2 Am. Rep. 368 (1869). 
 
 ' Grube v. St.' Paul, 34 Minn. 402 
 (1886); Howard v. San Francisco, 
 51 Cat. 52 (1875) ; Wilcox V. Chicago^ 
 107 111. 334, 47 Am. R. 434 ; Jewett 
 v. New Haven, 38 Conn. 369, 9 Am. 
 R. 382 (1871) ; Hafford v. New 
 
 Bedford, 82 Mass. 297 (i860) ; Al 
 ander v. Vicksburgh, 68 Miss. 564, 
 So. Rep. 62 (1 891) ; Knight v. PI 
 adelphia, 15 W. N. C. 307 (1884). 
 
 * Wild v. Paterson, 47 N. J. L. ^ 
 (1886); Fisher v. Boston, 104 Ma 
 87, 6 Am. Rep. 196 (1870), burst! 
 of a fire hose ; Edgerly v. Conco 
 59 N. H. 79 (1879), (compare w 
 Jenney v. Brooklyn; 120 N. Y. if 
 McKenna v. St. Louis, 6 Mo. App. 3; 
 See also Kies v. Erie, 135 Pa. i 
 (1890). 
 
 'See Lafayette v. Allen, 81 Ir 
 166 (1881), where a city was hi 
 liable to an engineer who was put 
 work upon a defective fire engii 
 In/ra, Chapter XVII. 
 
 ^Burrill v. Augusta, 78 Me. 118 
 N. E. Rep. 697 (1886); Hayes 
 Oshkosh, 33 Wis. 314, 14 Am. Ri 
 760 (1873) ; O'Meara v. New Yo; 
 I Daly (N. Y.) 425. See also Wei 
 V. Rutland, 56 Vt. 228, 48 Am. R( 
 762. Greenwood v. Louisville, 
 Bush (Ky.) 226 (1877), 
 
SOLELY GOVERNMENTAL DUTIES. 
 
 47 
 
 If the property of the fire department is used for other 
 purposes than those for which it is held by the city, and 
 one is injured by the negligence of the person so using 
 it, there will be no liability on the part of the city,^ as the 
 
 ' In Smith v. City of Rochester, 76 
 N. Y. 506, Miller, J., says: "The 
 doctrine is well settled, that munici- 
 pal corporations are within the opera- 
 tion of the general rule of law, that 
 the superior or employer must answer 
 civilly for the negligence or want of 
 skill of an agent or servant in the 
 course of their employment, by which 
 another is injured. It is essential, 
 however, to establish such a liability 
 that the act complained of must be 
 within the scope of the corporate 
 powers, as provided by charter or 
 positive enactment of law. If the act 
 done is committed outside of the au- 
 thority and power of the corporation 
 as conferred by statute, the corpora- 
 tion is not liable, whether its officers 
 directed its performance, or it was 
 done without any express direction or 
 command. It is ultra vires, and can- 
 not be made the basis of an action 
 for damages for that reason. These 
 general principles are fully sustained 
 by the authorities (See Dillon on 
 Mun. Cor., §§ 766, 767, and authori- 
 ties cited). 
 
 " The liability of the defendant is 
 sought to be maintained upon the 
 ground that, although the defendant's 
 horses and hose-cart were purchased 
 and designed for public service in the 
 fire department, and were generally 
 employed in that service, it was com- 
 petent for the defendant to employ 
 them in some other service, not of a 
 public, but purely of a private char- 
 acter, so as to render the defendant 
 liable for damages arising from their 
 negligence. This position rests upon 
 the ground that the corporation is 
 
 liable whenever it uses the property 
 in a service which is not of a public 
 nature authorized by law, and its 
 orders impose upon servants who 
 have the charge and control of such 
 property the duty of obedience, and 
 render the corporation responsible for 
 the negligent misconduct of the ser- 
 vant, as much as that of any other 
 superior, or as for any other mal- 
 feasance 
 
 " No reported case sustains the prin- 
 ciple, that when the common council 
 of a municipal corporation exceed the 
 powers conferred by the charter of 
 the city they represent, by using the 
 property of the city, as was done in 
 this case, for purposes not recognized 
 by law, then the corporation is an- 
 swerable for negligence in the man- 
 agement of such property. Such a 
 rule would place in the hands of the 
 members of the common council of a 
 municipal corporation a power to 
 create liabilities of the tax-payers, 
 which is without any precedent or 
 authority of law, and which might be 
 liable to great abuse. The decisions 
 of the courts are, we think, in a con- 
 trary direction, and the cases estab- 
 lish, beyond question, that to author- 
 ize the conclusion that the order to 
 the driver of the hose-cart was justi- 
 fied by the common council, it should 
 appear that there was express author- 
 ity in the charter, or that it was done 
 in pursuance of some general author- 
 ity to act for the corporation in refer- 
 ence to the matter. The rule on the 
 subject is well stated in the opinion 
 of Shaw, Ch. J., in Thayer v. The 
 City of Boston, 19 Pick. 516, as fol- 
 
48 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 use of the property in this way is wholly beyond 
 authority of the city. 
 
 A municipality is not liable for the negligence of me 
 bers of a fire insurance patrol/ nor for the negligei 
 
 lows: 'As a general rule, the cor- 
 poration is not responsible for the 
 unauthorized and unlawful acts of its 
 officers, though done colore officii ; 
 it must further appear, that they were 
 expressly authorized to do the acts, 
 by the city government, or that they 
 were done bona fide in pursuance of a 
 general authority to act for the city, 
 on the subject to which they relate ; 
 or that, in either case, the act was 
 adopted and ratified by the corpora- 
 tion.' This rule is upheld in Lee v. 
 The Village of Sandy Hill, 40 N. Y. 
 442 {supra), in the opinion of the 
 court, as well as in other decisions. 
 See The Mayor v. Bailey, 2 Den. 433 ; 
 Buffalo and Hamburgh Turnpike Co. 
 V. The City of Buffalo, 58 N. Y. 639; 
 Anthony v. Inhabitants of Adams, 
 
 1 Mete. 284 ; The Mayor v. Cunliff, 
 
 2 Comst. 165 ; Ham v. The Mayor, 
 70 N. Y. 459 ; Morrison v. Lawrence, 
 98 Mass. 219 
 
 " Assuming, however, that the com- 
 mon council, in making an order for 
 a midnight parade of the fire depart- 
 ment to celebrate the centennial anni- 
 versary of the nation, had authority 
 under the provisions last cited, the 
 difficulty in maintaining the plaintiff's 
 action is the well-settled rule, that a 
 municipal corporation is not liable for 
 the negligence of firemen while en- 
 gaged in the line of their duty (Dillon 
 on Mun. Cor., § 774 ; HafFord v. New 
 Bedford, 16 Gray 297; Fisher v. Bos- 
 ton, 104 Mass. 87 ; Jewett v. City of 
 New Haven, 38 Conn. 368 ; O'Meara 
 v. The Mayor, i Daly 425). 
 
 "The exemption from liability, in 
 
 most of the cases last cited, is pla 
 upon the ground that the servic 
 performed by the corporation for 
 pubhc good, in obedience to law 
 which he has no particular inter 
 and from which it derives no par 
 ular benefit in its corporate capac 
 that the members of the fire dep 
 ment are not the agents and serve 
 o'f the city, for whose conduct i 
 liable, but act as officers charged v 
 a public service, for whose negligei 
 in the discharge of official duty, 
 action lies against the city, and 
 maxim oi respondeat superior has 
 application." 
 
 See also Simon v. Atlanta, 67 
 618, 44 Am. Rep. 739 (l88i), wh 
 an injury was occasioned by 
 stretching of a rope across the sti 
 during a parade of the fire dep; 
 ment. 
 
 ' In Boyd v. Insurance Patrol 
 Philadelphia, 113 Pa. 269 (1886), i 
 said : " It has been repeatedly 
 cided, that, as a general rule, a i 
 nicipality, in the performance of c 
 tain public functions delegated t( 
 by the sovereignty of the State, is 
 agent of the government, and is 
 liable for the malfeasance or nq 
 gence of its officers or employf 
 T he officers of the municipality h; 
 been held to be quasi civil officer; 
 the government, although appoin 
 by the corporation; they are the 
 selves personally liable for their n 
 feasance or misfeasance in office, 
 for neither is the corporation respi 
 sible." 
 
§31 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 49 
 
 of the board of fire commissioners.^ It is also held in 
 Pennsylvania that an incorporated fire insurance patrol 
 is not responsible for damages occasioned by its neg- 
 ligence, on the ground that it is a charitable corpora- 
 
 > In O'Leary v. Board of Fire, etc, 
 Com'rs, 79 Mich. 281, 7 L. R. A, 
 170 (i8go), Campbell, J., says : " It 
 was held in Detroit v. Blackeby, 21 
 Mich. 84, that cities and municipali- 
 ties are not usually responsible in 
 damages for the neglect of persons 
 in public office, unless made so by 
 statute ; and it has been held in nu- 
 merous cases since that the statute 
 liability cannot be enlarged. Detroit 
 V. Putnam, 45 Mich. 263 (7 N. W. 
 Rep. 815); McKellar v. Detroit, 57 
 Id. 158 (23 N.W. Rep. 621); McAr- 
 thur V. Saginaw, 58 Id. 357 ^25 N. W. 
 Rep. 313); Williams v. Grand Rapids, 
 59 Id. 51 (26 N.W. Rep. 279); Keyes 
 V. Village of Marcellus, 50 Id. 439 
 (15 N. W. Rep. 542). On the other 
 hand, it was held in Detroit v. Corey, 
 9 Mich. 165, that where a city is en- 
 gaged in making a work which is its 
 private property as a municipality, 
 and not a mere public easement, and 
 done under city employment or con- 
 tract, it is responsible for injuries 
 caused by neglect in its process of 
 construction, as it is for any such 
 action as directly injures private prop- 
 erty. Pennoyer v. Saginaw, 8 Mich. 
 534; Ashley v. Port Huron, 35 Id. 
 296; Defer v. Detroit, 67 Id. 346 (34 
 N. W. Rep. 680). But it is not 
 usually liable in other cases. If this 
 defendant was the representative 
 directly of the people of Marquette 
 to govern the city, with power to tax 
 the people to carry out its plans, and 
 held the property in its charge by 
 proprietorship for its own purposes, 
 it would seem to come within the 
 
 Corey case. But a city represents 
 the people for all the strict purposes 
 of local government, and has power 
 to raise its own revenue. The legis- 
 lature, in requiring towns, cities, and 
 villages to answer in damages for 
 neglect to keep roads in repair, at the 
 same time found it necessary to re- 
 move one of the recognized difficulties 
 arising from lack of funds, by ena- 
 bling them to provide by taxation for 
 all such purposes. The purposes for 
 which the present municipal agency 
 was created are entirely for the pro- 
 tection of the city from fire, and for 
 promoting its health by a supply of 
 good water. The defendant is only 
 enabled to obtain and hold such prop- 
 erty as will be instrumental to that 
 end. Every seizure of such property, 
 if allowed, would be a diminution of 
 the power of defendant to perform its 
 public duties in regard to public 
 health and safety. It not only has 
 no taxing power, but the city has no 
 power to give it any taxes, except 
 such as will enable it to pay its bonds, 
 and meet any deficiency in operating 
 expenses. Its property is not subject 
 to execution. It cannot be true that 
 such an agency can be officially liable 
 to suits for liabilities, where it has no 
 legal means of raising funds for pay- 
 ment. As already suggested, unin- 
 corporated boards are not so liable ; 
 and there is no obvious reason why 
 the mere fact of incorporation, with 
 no charge of powers, can change their 
 liabilities." 
 
 See Baltimore v, O'Neill, 63 Md. 
 336 (1884). 
 
20 SOLELY GOVERNMENTAL DUTIES. § 32 
 
 tion;^ in Massachusetts a corporation of a somewhat 
 similar character, however, has been held responsible for 
 its negligence.* But a city is not responsible for the 
 negligence of an inspector of steam boilers appointed 
 under general laws of the State.^ 
 
 § 32. Punishing criminals and wrong-doers. — The estab- 
 lishment and maintenance of jails and workhouses are 
 governmental matters, and a municipality is not to be 
 held responsible by prisoners for the manner in which 
 it performs these duties. If therefore a jail is destroyed 
 by a fire occasioned by the negligence of an officer of a 
 city, there will be no corporate responsibility for dam- 
 ages for the death of an inmate.* And where a criminal 
 was confined in a penitentiary and was injured by defect- 
 ive machinery in use there, it was held that he could not 
 recover from the county, on the ground that the punish- 
 ing of criminals was an act of sovereignty and that the 
 county stood for the State in that respect.^ 
 
 ' Fire Insurance Patrol v. Boyd, porting his family and having been 
 
 120 Pa. 624, 29 Am. & Eng. C. C. legally sentenced to, confinement 
 
 633 (1888). there. He was injured while en- 
 
 "^ Newcomb v. Boston Protective gaged in unloading coal, and it must 
 
 Department, 29 Am. & Eng. C. C. be assumed was prepared to prove 
 
 641 (1890), and citation of cases. that he himself was in the exercise of 
 
 3 Mead v. New Haven, 40 Conn. 72 due care, and that the officers and 
 
 (1873). servants employed in this institution 
 
 * Brown v. Guyandotte (W. Va), were negligent. The single question 
 
 II L. R. A. 121, 12 S. E. Rep. 707 presented is whether these officers 
 
 (1890). and servants — engaged in conducting 
 
 ' Alamango v. Albany County, 25 the work incident to the maintenance 
 Hun (N. Y.) 551 (1881). See Connor of the workhouse of the city and to 
 V. Cleveland, i Clev. Rep. 257 (1878). the employment of the inmates there- 
 in Curran v. Boston, 151 Mass. of, from whose employment it derives 
 505, 8 L. R. A. 243, 30 A. & E. C. a certain amount of revenue, such 
 C. 506 (1890), Devens, J., says: officers and servants being also en- 
 
 "The plaintiff was an inmate of gaged in the management of the city's 
 
 the workhouse or house of industry property employed in the business of 
 
 belonging to the city of Boston, situ- the workhouse — are agents of the city, 
 
 ated on Deer Island, having been con- for whose liegligence in the perform- 
 
 victed of the misdemeanor of not sup- ance of their duties it is responsible. 
 
§32 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 51 
 
 Again, it has been held that one who was confined in 
 a city prison could not recover damages from the city for 
 injuries suffered by reason of the bad condidon of the 
 prison or the negligence of the officers in charge.^ 
 
 " It is a general, principle that mu- 
 nicipal corporations are not liable to 
 private actions for omissions or neg- 
 lect in the performance of a corporate 
 duty imposed upon them by law, or 
 for that of their servants engaged 
 therein, when such corporations de- 
 rive no benefit therefrom in their cor- 
 porate capacity, unless such action is 
 given by statute. Oliver v. Worces- 
 ter, 102 Mass. 489, and cases cited. 
 
 " By the statute authorizing the erec- 
 tion and maintenance of workhouses 
 by a city a mode of performing a 
 strictly public duty is provided for 
 which cannot be of any pecuniary ad- 
 vantage to the cities or towns insti- 
 tuting them. No such case is pre- 
 sented as exists where a city has 
 undertaken to build particular works, 
 as water-works, sewers, etc., and 
 where a city acts as an agency to 
 carry on an enterprise to some extent 
 commercial in its character, for the 
 purpose of furnishing convenience 
 and benefits to such as choose to pay 
 for them. The element of considera- 
 tion then comes in, and in such cases 
 it Is usually held that a liability exists 
 on the part of the city for an injury to 
 an individual through negligence in 
 building or maintaining such work. 
 Child V. Boston, 4 Allen 41 ; Oliver 
 V. Worcester, 103 Mass. 489 ; Emery 
 V. Lowell, 104 Mass. 13 ; Merrlfield 
 V. Worcester, no Mass. 216; Mur- 
 phy v. Lowell, 124 Mass. 564; Tind- 
 ley V. Salem, 137 Mass. 171. 
 
 " The action of the city in establish- 
 ing the workhouse was purely for pub- 
 lic service, and for the general good 
 in providing for the care and support 
 
 of offenders for whose maintenance it 
 was responsible. While in some cases 
 the statute enjoins and directs action 
 similar to this and in others permits 
 It, as thera is in either case no ele- 
 ment of corporate advantage or of 
 pecuniary profit to the city, it is not 
 to be held responsible because it ex- 
 ercised the option which was given to 
 it to undertake what it did. Hafford 
 v. New Bedford, 16 Gray 297; Fisch- 
 er V. Boston, 104 Mass. 87. 
 
 " Nor do we perceive any reason why 
 the city should be held responsible be- 
 cause some revenue Is derived from 
 the labor of the inmates. It is re- 
 quired by the statute that these in- 
 mates should be kept at work, but the 
 institution is not conducted with a 
 view to pecuniary profit. It is not 
 suggested that the expense of main- 
 taining the workhouse is met by 
 what is derived from the labor of the 
 inmates, or that any profit above them 
 is made. Even if the extire expense 
 is not met by taxation by reason of 
 the profit thus derived, such profit is 
 purely incidental. The object and 
 purpose of the workhouse and the con- 
 duct of it are not thus shown to be of 
 the nature of a business. It only ap- 
 pears that as a public institution it is 
 managed in a judicious and economi- 
 cal manner." 
 
 ' La Clef V. City of Concordia, 41 
 Kans. 323, 13 Am. St. Rep. 285 ; 
 White V. Sullivan County, Ind., 45 
 Alb. L. J. 35 (1891) ; Lindley v. Polk 
 Co. (la.), so N. W. Rep. 975 (1892) ; 
 Davis V. Knoxville, 18 S. W. Rep. 
 254 (1891). 
 
52 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 In a recent case in North Carolina it was intimat 
 that the city would be liable to a criminal suit in dai 
 ages if the statutory duties imposed by the code upon t 
 county commissioners were negligently performed 1 
 these commissioners. And cities have been held liable 
 damages for violating statutory duties in regard to jail 
 A town has also been made answerable in Virginia f 
 
 ' Moffitt V. City of Asheville, 103 
 N. C. 237, 14 Am. St. Rep.'Sio (1889). 
 In this case, Avery, J., says : 
 
 " Where a city or town is exercis- 
 ing the judicial, discretionary, or leg- 
 islative authority conferred by its 
 charter, or is discharging a duty im- 
 posed solely for the benefit of the pub- 
 lic, it incurs no liability for the negli- 
 gence of its officers, though acting 
 under color of office, unless some 
 statute (expressly or by necessary im- 
 plication) subjects the corporation to 
 pecuniary responsibility for such neg- 
 ligence. Hill V. Charlotte, 72 N. C. 
 55 ; State v. Hall, 97 Id. 474 ; 
 2 Dillon on Mun. Corp., sees. 965, 
 975 ; Dargan v. Mayor, 31 Ala. 
 469, 70 Am. Dec. 505; City of Rich- 
 mond v. Long, 17 Graft. 375, 94 Am. 
 Dec. 461 ; Stewart v. New Orleans, 
 9 La. Ann. 461, 61 Am. Dec. 218; 
 Wharton on Negligence, sees. 191, 
 260 ; Hill v. City of Boston, 122 Mass. 
 344, 23 Am. Rep. 332 ; Sherman and 
 Redfield on Negligence, sec. 129. 
 
 '• As illustrations of the principle 
 last stated, it has been held that a 
 city is not answerable in damages for 
 an assault with excessive force com- 
 mitted by a police officer in the at- 
 tempt to enforce a city ordinance, or 
 for the negligent or unnecessary kill- 
 ing by a police officer of a city of one 
 whom he is attempting rightfully to 
 arrest. Many cases, illustrating by 
 example the principle that municipal 
 corporations are exempt from liability 
 
 when acting as agents of the Sta 
 and exercising governmental pow 
 will be found collected in Danal 
 V. City of Brooklyn, 51 Hun 563, 
 Alb. L. J., No. 17. 
 
 " The plaintiff was arrested for 
 assault committed in the presence 
 the peace officer of the city who 
 rested him, and the officer was i 
 questionably exercising a right; 
 fact, discharging a duty to the pi 
 he. Code, sees. 3808, 3810, 38 
 3818; Private Laws, 1883, c. Ill, s 
 59. The city of Asheville was n 
 therefore, answerable in damages 
 the plaintiff for any violence or ncf 
 gence on the part of its officials 
 ward him up to the moment when 
 was committed to the city prison. 
 " When we follow the plaintiff acn 
 the portal of the prison, we are c( 
 fronted with the new questi 
 whether there is any provision of 1 
 creating a liability (expressly or 
 implication) on the part of the city 
 injury to the health of or for the bi 
 ily suffering of the plaintiff, caused 
 the neglect of the city or its agents 
 the construction of the prison or •• 
 subsequent superintendence of it. S 
 tion 6, article xi., of the constituti 
 and section 3464 of the Code, are 
 follows : Sec. 6, Constitution, art. j 
 ' It shall be required by compet 
 legislation that the structure and 
 perintendence of the penal institutii 
 of the State, the county jails, and ( 
 police prisons secure the health ; 
 
§32 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 53 
 
 injuries to the health of a prisoner occasioned by the 
 unhealthy condition of a jail independently established 
 and maintained by the municipality.^ 
 
 comfort of the prisoners,' etc. Code, 
 sec. 3464 : ' The ' sheriff or keeper of 
 any jail shall every day cleanse the 
 room of the prison in which any pris- 
 oner shall be confined, and cause all 
 •filth to be removed therefrom ; and 
 shall furnish the prisoner a plenty of 
 good and wholesome water three 
 times in every day ; and shall find 
 each prisoner fuel, one pound of good, 
 wholesome bread, one pound of good 
 roasted or boiled flesh, and every nec- 
 essary attendance.' 
 
 " Section 3465 of the Code imposes 
 upon the county commissioners the 
 duty of purchasing ' a number of 
 good warm blankets, or other suit- 
 able bed-clothes, which shall be se- 
 curely preserved by the jailer, and 
 furnished to the prisoners for their 
 use and comfort as the season or cir- 
 cumstances may require.' .... 
 
 " We hold that the defendant is 
 liable in damages only for a failure, 
 either to so construct its prison or so 
 provide it with fuel, bed-clothing, 
 heating apparatus, attendance, and 
 other things necessary as to secure to 
 the prisoners committed to it a rea- 
 sonable degree of comfort and pro- 
 tect them from such actual bodily 
 suffering as would injure their 
 health 
 
 " The word ' superintendence ' 
 means oversight or inspection, and 
 was intended, as used in the consti- 
 tution, to impose upon the governing 
 officials of a municipal corporation 
 the duty of exercising ordinary care 
 in procuring articles essential for the 
 health and comfort of prisoners, and 
 of overlooking their subordinates in 
 immediate control of the prison (so 
 
 far, at least, as to replenish the sup- 
 ply of such necessary articles when 
 notified that they are needed), and of 
 employing such agents, and raising 
 and appropriating such amounts of 
 money as may be necessary to keep 
 the prison in such condition as to se- 
 cure the comfort and health of the in- 
 mates. Threadgill v. Commission- 
 ers,- 99 N. C. 352. .... We think 
 that where window-glass in the win- 
 dow of a prison has been broken, 
 and the bed-clothing furnished for 
 its inmates has been destroyed, but 
 the governing officers of the town are 
 not shown to have had actual no- 
 tice of the breaking or destruction, or 
 to have been negligent in omitting to 
 provide for such oversight of the 
 prison as would naturally be expected 
 to give them timely information of its 
 condition, there is not such a failure 
 in discharging the duties of construc- 
 tion or superintendence as to subject 
 the corporation to liability. We do 
 not wish, however, to be understood 
 as intimating that a city or town 
 would not be liable, if it should retain 
 incompetent or careless jailers or ser- 
 vants after notice of their character, 
 for damages caused by their negli- 
 gence, though the question is not di- 
 rectly presented in this case 
 
 (Citing) Lewis v. Raleigh, 77 N. C. 229 
 (1877) ; Manuel v. Cumberland, 98 
 N. C. 9 (1887) ; Wehn v. Gage Co., 
 5 Neb. 494 (i877)-" 
 
 1 By the provisions of section 927 ot 
 the Code of Virginia of 1887 and also 
 by a special provision in its charter, 
 the defendant municipal corporation 
 had the privilege of using the county 
 jail of Tazewell County for the con- 
 
54 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 §33 
 
 § 33. Caring for the poor. — In its efforts to better the 
 condition of the poor, also, a municipal corporation un- 
 dertakes work beyond the scope of legal duties. No 
 duty of this character rests upon an individual and the 
 law does not recognize obligations of friendliness or 
 charity. The government, however, in its sovereign 
 capacity often undertakes this work, and when it does 
 so, it acts voluntarily and as a public benefactor. No 
 liability, therefore, will attach to it for the negligence of 
 its agents or servants in performing the work entrusted 
 to them. 
 
 In the city of New York the commissioners of chari- 
 ties act as a governmental body and the city is not liable 
 for the negligent acts of their servants.^ 
 
 finement of offenders against the laws 
 and its ordinances and by-laws ; but 
 it elected to set up a jail or lock-up or 
 calaboose of its own, independent of 
 the law respecting county and city 
 jails, and not subject to the law re- 
 quiring them to be kept in proper con- 
 dition, and to be inspected by officers 
 appointed for the purpose ; and it can 
 be held liable in damages for failure 
 to keep said jail, lock-up, or calaboose 
 in proper condition in the same man- 
 ner as if, having elected to open 
 streets, construct sidewalks, dig sew- 
 ers, and keep the same in repair, 
 which it was not required but per- 
 mitted to do by the general statutes 
 of Virginia and by its charter, it had 
 failed to keep the said streets, side- 
 walks, and sewers in proper and safe 
 condition. U. S. Circ. Ct., W. D. 
 Va. ; Edwards v. Pocahontas, 47 Fed. 
 Rep. 268, 44 Alb. L. J., 363 (1891). 
 
 ' Maximilian v. Mayor, 62 N. Y. 
 160 (1875). Folger, J., says: "The 
 duties of this department and its 
 head officers were to care for paupers, 
 for poor and destitute children, for 
 
 lunatics and strangers, and for certain 
 persons committed for offences. This 
 becomes the practical question : Are 
 the acts which are to be done by the 
 commissioners of charities and cor- 
 rection, acts to be done by them in 
 their capacity as public officers in the 
 discharge of duties imposed upon 
 them by the legislature for the public 
 benefit ; or are they acts done for the 
 defendant, in what may be called its 
 private character, in the management 
 of property or rights voluntarily held 
 by it for its own immediate profit or 
 advantage as a corporation, though 
 inuring ultimately to the benefit of 
 the public ? Oliver v. Worcester, 102 
 Mass. 489. There can be but one 
 answer. The defendant is in no dif- 
 ferent position, in kind, from that in 
 which is placed a township the most 
 retired, the most sparse in population, 
 in the State. The latter is under a 
 law which requires its electors to 
 elect officers, whose powers and 
 duties are of the kind which the com- 
 missioners of charities and correction 
 have. Those officers may for the 
 
§ 33 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 55 
 
 The same principle was applied in an English case/ 
 although the question of freedom from liability is said 
 
 time, as do the commissioners perma- 
 nently, employ servants. The town 
 has not the selection of those ser- 
 vants, nor the control nor power of re- 
 moval of them. Nor is it interested, 
 as a municipal di vision of the State, for 
 its private emolument or advantage 
 in their acts. The overseers of the 
 poor of a town and the commission- 
 ers of charities and correction, are 
 public officers, though getting their 
 right of office from a circumscribed 
 locality; and the acts which they 
 may do are to be done in their ca- 
 pacity as public officers, in the dis- 
 charge of duties laid upon them by 
 the law for the public benefit, and far 
 removed from acts done by city or 
 town, in its municipal character, in 
 the management of its property for 
 its own profit or advantage. It is 
 seen at once that the powers and 
 duties of the commissioners of chari- 
 ties and corrections are not to be ex- 
 ercised and performed for the espe- 
 cial benefit of the defendant. It gets 
 no emolument therefrom, nor any 
 good as a corporation. It is the 
 public, or individuals as members of 
 the community, who are interested in 
 the due exercise of these powers and 
 the proper performance of their 
 duties. They are such powers as are 
 to be held by some officers through- 
 out the State, in every part thereof, 
 such duties as are to be performed in 
 every local political division of the 
 
 State, not for the peculiar benefit of 
 such division, but for the public, in 
 the discharge of its duty to suffering 
 or wayward members of the whole 
 body politic. The territorial bound- 
 aries of the defendant are taken by 
 the legislature acting as the organ of 
 the sovereign power, and within 
 them is' created a department and 
 constituted a board of chief officers 
 which, within those boundaries, is to 
 have the power to use the public 
 moneys of that political division of 
 the State, for the due discharge of 
 the duty of the State in that locality 
 to the poor, the crazed, the wicked. 
 It is a public duty laid upon the de- 
 fendant, as a convenient mode of ex- 
 ercising a function of government, 
 that it should, through its chief ex- 
 ecutive officer, from time to time ap- 
 point the chief officers of this depart- 
 ment, and from time to time supply it 
 with the means of performing its 
 special public duties. These chief 
 officers, though in a sense its officers, 
 as having no power unless after ap- 
 pointment by it and as mainly con- 
 fined within its territorial boundaries, 
 are yet officers of the State govern- 
 ment, in the sense that they perform 
 its function within a designated polit- 
 ical division of the State. The de- 
 fendant may not control them, save 
 in strict accordance with the provi- 
 sions of law. It does not select, nor 
 control, nor remove, nor immedi- 
 
 ' In Brennan v. Guardians of Lim- 
 erick Union, L. R. Ir. 2 C. L. 42 
 (1878), Fitzgerald, J., says : " I desire 
 further to state my own impression 
 that on other and wider grounds the 
 action is not maintainable. The ad- 
 ministration of the Poor Laws is 
 
 in tlie hands of the Poor Law Com- 
 missioners, who, by expressed stat- 
 utable provisions and their power to 
 make and enforce general and spe- 
 cial orders, exercise complete power 
 over every board of guardians and 
 control and direct their action. The 
 
56 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 JC 
 
 not to be entirely settled in England.^ In Massachu 
 setts, in a case referred to in a previous section, th( 
 
 ately pay their subordinates, their 
 agents, their servants, and may not 
 do so. 
 
 " It is not always easy to say within 
 which class a particular case should 
 be placed. But when it is determined 
 that the power and duty are given 
 and taken for the benefit of the cor- 
 poration as a corporate body, and the 
 act to be done is to be done by it 
 through agents of its appointment 
 and under its control and power of 
 removal, there is no doubt of its lia- 
 bility for negligent omission or neg- 
 ligent attempt at performance. When 
 the powers created and duly enjoined 
 are given and laid upon officers to be 
 named by the corporation, but for the 
 
 public benefit and as a convenien 
 method of exercising a function o 
 general government, and the corpora 
 tion has no immediate control no 
 immediate power of removal of thosi 
 officers, nor of their subordinates anc 
 servants, then it is not liable for thei 
 negligent omission or action. Thi: 
 court is of the opinion that in thi 
 light of past decisions upon thesi 
 points this case falls within the latte 
 class." See also Haight v. Nev 
 York, 24 Fed. Rep. 93 (1885), when 
 the exemption of these commission 
 ers from liability for negligence wa: 
 extended to a case of careless man 
 agement of a steam-tug by their em 
 ployees. 
 
 guardians are but a subordinate ad- 
 ministrative body acting as unpaid 
 public trustees in taking order for the 
 relief of the destitute poor. I incline 
 to the opinion that an action does 
 not lie against them in their corporate 
 capacity for a supposed neglect of 
 their administrative duty in not pro- 
 viding adequate relief. For any such 
 neglect of duty they are subject to 
 the order and authority of the Poor 
 Law Commissioners, and maybe dis- 
 solved as a corporation and paid 
 officers appointed in their stead to 
 carry into effect the duties they have 
 neglected. The guardians as a cor- 
 poration may possibly be liable to an 
 indictment, or the individual members 
 of the Board may be personally re- 
 sponsible in damages for negligent 
 omission to perform their individual 
 duties ; but it would seem to be 
 against public policy to permit actions 
 to be maintained against them in 
 their corporate capacity for negligent 
 
 omission in carrying out their admin 
 istrative duties, — see Mill v. Hawkei 
 L. R. 9 Ex. 309; L. R. 10 Ex. 92 
 Central Railroad v. Smith, 52 Am. R 
 353, — and especially as the damage 
 and the costs should be paid, if at al 
 out of the rates. If the present actioi 
 can be maintained, why should not ai 
 action lie against the guardians, a 
 suit of each pauper, for every sup 
 posed neglect of administrative dut 
 causing to the individual any real 
 fancied grievance, — e.g., for supplying 
 food insufficient in quantity or inferic 
 in quality, or insufficient or inferio 
 clothing or bedding, defective sanitar 
 arrangements, or any other of th 
 various neglects or omissions b 
 which inmates of a workhouse ma 
 be prejudicially affected ? If the re' 
 or supposed omissions of guardian 
 are to be thus redressed, it would h 
 difficult, if not impracticable, to ac 
 minister the laws for the relief of th 
 destitute poor." 
 
 ' Beven on Negligence, p. 266. 
 
33 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 57 
 
 same rule is applied to an inmate of a workhouse estab- 
 lished for the poor of the city of Boston.^ And in Illi- 
 nois it has been held that a county could not be held 
 
 ' Curran v. Boston, 151 Mass. 505 
 (1890) ; supra, n. 5, p. 50. 
 
 In Neff V. Wellesley, 148 Mass. 
 487 (1889), Knowlton, J., says: "It 
 is a general rule that a town is not 
 liable for the negligence of its agents 
 or servants in a matter in which it 
 has no interest, and which has no 
 direct or natural tendency to injure 
 any individual in person or property, 
 and which it has in charge solely in 
 the performance of a public duty im- 
 posed upon it by law. Hill v. Boston, 
 122 Mass. 344; Tindley v. Salem, 137 
 Mass. 171, 172. Whether this rule 
 should be held to apply to the use of 
 a farm for no other purpose than the 
 support of paupers who are a charge 
 upon the town, it is unnecessary to 
 decide. For the jury have found that 
 paupers whose support was charge- 
 able to another town and to the Com- 
 monwealth were boarded for pay up- 
 on the defendants' farm, and that 
 persons employed to work upon the 
 highways were also boarded there, 
 and that horses were kept there prin- 
 cipally for use in repairing the high- 
 ways. When property is used or busi- 
 ness is conducted by a town princi- 
 pally for public purposes, under the au- 
 thority of the law, but incidentally and 
 in part for profit, the town is liable 
 for negligence in the management of 
 it. Oliver v. Worcester, 102 Mass. 
 489; Worden v. New Bedford, 131 
 Mass. 23; Tindley v. Salem, 137 
 Mass. 171. 
 
 " This case clearly does not fall 
 within the rule which we have stated. 
 
 " Nor can it be held that the use of 
 the farm by the defendant was illegal, 
 so as to exonerate the town from 
 
 liability on account of it. It was not 
 an appropriation of public money to 
 a commercial enterprise conducted 
 primarily for profit. The income re- 
 ceived from the farm was, apparently, 
 incidental to the use of it in the sup- 
 port of paupers having a residence in 
 the town and in boarding horses and 
 men employed upon the highways 
 
 which the town maintained 
 
 " In the case at bar the same per- 
 sons held the offices of overseers 
 of the poor, highway surveyors, and 
 selectmen. In one capacity they had 
 the care and oversight of the paupers ; 
 in another, of the roads and bridges ; 
 and in the third, of many of the other 
 prudential affairs of the town. The 
 farm was used in part for the support 
 of the paupers of whom they had 
 charge as overseers of the poor; in 
 part for a purpose which was con- 
 nected with the maintenance of the 
 highways, which were in charge of 
 the highway surveyors ; and in part 
 for the production of income, a use 
 which was outside the express au- 
 thority of any board of public ofiicers 
 and was under an assumption of au- 
 thority that seems to have been ap- 
 proved and- ratified by the town. The 
 three persons who manage the farm 
 in the interest of the town for these 
 several purposes cannot be deemed to 
 have been acting merely as a single 
 board of public officers, but they rep- 
 resented the defendant in different 
 capacities, such as to make them in 
 that business the defendants' agents. 
 The facts which the jury were re- 
 quired to find in order to return a 
 verdict for the plaintiff conclusively 
 established the town's liability for 
 
5 8 SOLELY GOVERNMENTAL DUTIES. § 34. 
 
 liable for damage occasioned by a fire caused by the neg- 
 ligence of servants in the county poorhouse.' 
 
 § 34. Educational work.— In respect to its system ot 
 public education, there can be no doubt that the munici- 
 pal agencies of the State act for the sovereign, and should 
 not be held accountable in damages for the negligent 
 manner in which they carry on this work, unless other 
 duties are also violated. It has been held that there is 
 no liability on the part of a city for damages occasioned 
 by defects in its school-buildings,* but it is believed that 
 where any municipal corporation with a corporate fund, 
 which owns or absolutely controls its school-buildings, 
 is charged with the obligations growing out of the pos- 
 session of property, and is under the duty of keeping 
 these buildings in a reasonably safe condition for use, 
 it is liable in an action for damages to any individual 
 who has been injured by the careless discharge of this 
 duty. This subject, however, will be discussed in a sub- 
 sequent chapter.^ It is sufficient to say at present that 
 the duty upon which the claim for damages is based is 
 not the assumed governmental obligation to benefit the 
 
 Crawford's acts, and the defendants' '' Wixon v. Newport, 13 R. I. 454 
 
 requests for instructions upon this (1881), where it appeared that the 
 
 point were rightly refused, and the heating apparatus was defective and 
 
 instructions given were sufficiently caused the injury. See also Bigelow 
 
 favorable to the defendant. v. Randolph, 80 Mass. 541 (i860), 
 
 "It is not, under all circumstances, where there was a dangerous excava- 
 
 negligence for a blind person to walk tion in the school-house yard, and 
 
 unattended upon a public street, the court held there was no liability 
 
 Smith V. Wildes, 143 Mass. 556; for a failure to exercise care in regard 
 
 Sleeper v. Sandown, 52 N. H. 244. to it; Sullivan v. Boston, 126 Mass. 
 
 There was evidence proper for the 540 (1879), where it was held there 
 
 consideration of the jury upon the was no duty to keep a school-yard 
 
 question whether the plaintiff was in safe for the use of a scholar, although 
 
 the exercise of due care." the yard connected immediately with 
 
 ' Symonds V. Clay County, 71 111. the sidewalk; Hill v. Boston, 122 
 
 355(1874^. Mass. 344. /«//-«, §45. 
 
 ' Infra, Chap. XVII. 
 
§ 35 SOLELY GOVERNMENTAL DUTIES. 59 
 
 public by education, but is the ministerial duty resting on 
 all persons who manage property to keep it in such con- 
 dition that careful persons will not be injured when they 
 are brought into contact with it, whether by necessity or 
 invitation.^ When, however, there is no defect in the 
 public property, and no negligence save that of an em- 
 ployee of the city, it may be doubted whether there is 
 always ground for holding the city liable. And where 
 the negligence is not that of the city, but is that of a 
 quasi corporation without a corporate fund, acting on 
 behalf of the State, no action can be maintained against 
 it for damages.^ 
 
 § 35. Decision by municipality on discretionary matters 
 final. — Whether an act shall be done by a municipal cor- 
 poration for the public welfare frequently rests in the 
 discretion of the corporation, and when it does the deci- 
 sion of the question is an exercise of governmental 
 power, and is not subject to review in the courts.* Thus 
 
 ' But see Howard v. Worcester and in Ham v. New York, 70 N. Y. 
 (Mass.),l2L.R.A.i6o,27N.E.Rep.ii 460, that the ci(y was not liable for 
 (1891), where it was held that negli- injuries occasioned by the negligent 
 gence in blasting for the erection of use of closets in a school-building, 
 a school-house was not actionable ; whereby tenants underneath the 
 Ford V. School District, 121 Pa. 543 school were injured, on the ground 
 (1888), where it appeared that the that the Board of Education had con- 
 janitor of a school threw petroleum in trol of the building, and that this 
 a stove and a scholar was injured. board was not the servant of the city. 
 
 ^ Lane v. Woodbury, 58 la. 462 In Ohio also it was held in Diehm v. 
 {1882), where it appeared that the Cincinnati, 25 Ohio St. 305 (1874), 
 lightning-rods of the building were that the school trustees were not the 
 broken, and it was held that .the servants of the city, and that, there- 
 School District was not liable for neg- fore, the city was not liable for their 
 ligence, as it was a mere govern- negligence ; and in Finch v. Board, 
 mental agency. So, in New York, it etc., 30 Ohio St. 37 (1876), that the 
 was held, in Donovan v. Board of board of trustees was not liable, as it 
 Education, 85 N. Y. 117 (1881), that was not a corporation with funds, 
 the Board of Education was not liable ^ " A municipal corporation is not 
 for an injury which resulted from impliedly liable to an action for dam- 
 leaving the opening to the cellar un- ages either for the non-exercise of, or 
 covered, as the board had no treasury; for the manner in which in good faith 
 
6o 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 35 
 
 the corporation decides in regard to the grade of its 
 streets,^ and whether it shall open or close a street,^ and 
 it cannot be held responsible for not maintaining a cross- 
 ing at a particular place,^ or for not building sewers or 
 constructing drains.* Whether these works shall be 
 undertaken must ordinarily be settled by the public 
 authorities and not by the courts ; and the fact that power 
 to do any one of these things is given the corporation 
 does not alter the rule.^ So a failure to exercise its 
 power to remove dangerous walls will not create a lia- 
 bility for damage, unless they adjoin a highway and the 
 municipal duty to keep the streets in a reasonably safe 
 
 it exercises, discretionary powers of a 
 public or legislative character. Thus, 
 where such a corporation has under 
 its charter a discretion as to the time 
 or manner, or plan of making public 
 or corporate improvements — as, for 
 example, grading streets, constructing 
 sewers, drains, vaults, etc., building 
 market- houses, improving its harbors, 
 and the like — neither mandamus nor 
 a private action will lie against the 
 corporation for omitting or neglecting 
 to act ; and the reason is that such 
 powers are conferred to be exercised 
 or not, as the public interest is deemed 
 to require, and there is no implied lia- 
 bility for deciding either that the pub- 
 lic interest does not require action, or 
 that it requires action in a particular 
 way." Dillon on Municipal Corpora- 
 tions, § 949, citing numerous cases. 
 See also Burford v. Grand Rapids, 53 
 Mich. 98, 51 Am. Rep. 105 (1884), 
 where many authorities are cited. 
 
 ' Transportation Company v. Chi- 
 cago, 99 U. S. 635 (1878) ; Smith v. 
 Washington, 20 How. (U. S.) 135 
 (1857); Schattner v. Kansas City, 53 
 Mo. 162 ; Pontiac v. Carter, 32 Mich. 
 
 164 (1875); White V. Yazoo City, 27 
 Miss, 357 (1854); Wicks v. DeWitt, 
 54 la. 130 (1880); Hickox V. Cleveland, 
 8 Ohio 543, 32 Am. Dec. 730. 
 
 '^ Bauman v. Campau, 58 Mich. 444 
 (1885); Collins V. Savannah, 77 Ga. 
 745 (1886J; Brewster v. Davenport, 51 
 la. 427 (1879); Joliet V. Verley, 85 
 Am. Dec. 342. 
 
 « Easton v. Neff, 102 Pa. 474(1883); 
 Smith V. Gould, 61 Wis. 31 (1884); 
 Keating v. Kansas City, 84 Mo. 415; 
 see also Lehigh Co. v. HafFort, 116 Pa. 
 119(1887). 
 
 * Horton v. Nashvilfe, 4 Lea (Tenn.) 
 47 (1879); Wakefield v. Newell, 12 
 R. I. 75, 34 Am. Rep. 598 (1878); 
 Lynch v. New York, 76 N. Y, 60 
 (1879); Hoyt v. Hudson, 27 Wis. 656 
 (1871); Alton V. Hope, 68 111. 167 
 (1873); Glossop v. Heston Local 
 Board, L. R. 12 Ch. D. 102; Atty. 
 Genl. V. Dorking Union, L. R. 20 Ch. 
 Div. 595. 
 
 s Hardy v. Brooklyn, 90 N. Y. 435 
 (1882); Cummins v. Seymour, 79 Ind. 
 491 ; Reock v. Newark, 33 N. J. L. 
 129 (1868); Sherman & Redfield on 
 Nag., §§ 269, 279. 
 
§35 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 6i 
 
 condition for use is also violated.^ And where a city 
 neglected to exercise the power given to its council to 
 prohibit the manufacture of fireworks, it was held that 
 the corporation was not liable to 6ne who was injured 
 while assisting to extinguish a fire in a manufactory of 
 
 ' In Anderson v. East, 1 17 Ind. 126, 
 2 L. R. A. (1889), Elliott, C. J., says : 
 " Our judgment is that no cause of 
 action is stated against the city. A 
 municipal corporation is an instru- 
 mentality of government, and is not 
 liable for a failure to exercise legis- 
 lative or judicial powers, nor for 
 an improper or negligent exercise 
 of such powers. Wheeler v. City 
 of Plymouth, 116 Ind. 158; 
 Dooley v. Town of Sullivan, 112 Ind. 
 451, 2 Am. St. Rep. 209; City of 
 Terre Haute v. Hudnut, 112 Ind. 542 ; 
 Faulkner v. City of Aurora, 85 Ind, 
 130 ; City of Lafayette v. Timberlake, 
 88 Ind. 330 ; McDade v. Chester City, 
 117 Pa. St. 414, 2 Am. St. Rep. 681; 
 McArthur v. City of Saginaw, 58 
 Mich. 357, 55 Am. Rep. 687; 
 Agnew V. City of Corunna, 55 Mich. 
 428, 54 Am. Rep. 383 ; Hines v. Cily 
 of Charlotte, 40 N. W. Rep. 333; 
 Kiley v. City of Kansas, 87 Mo. 103, 
 56 Am. Rep. 443 ; Hubbell v. City of 
 Viroqua, 67 Wis. 343, 58 Am. Rep. 
 866 ; Robinson v. Greenville, 42 Ohio 
 St. 625, 51 Am. Rep. 857, and note. 
 " The authorities we have collected, 
 to which many more might easily be 
 added, illustrates all phases and pos- 
 tures of the general subject; but in 
 one thing all unite, and that is in 
 affirming that no recovery can in any 
 event be had where the negligence of 
 the municipal corporation consists in 
 failing to perform a legislative, judi- 
 cial, or discretionary duty, or in sim- 
 ply performing such a duty in an im- 
 proper method. The decision in Kiley 
 V. City :of Kansas, supra, is directly in 
 
 point, and applies the rule we have 
 stated to a case in principle precisely 
 like the one before us. 
 
 . ..." In many of the cases we 
 have cited, it is held that municipal 
 corporations owe a duty only to per- 
 sons using their streets, and to them 
 only owe a duty to keep the streets 
 safe for ordinary travel. In order to 
 create a liability the breach of duty 
 must be such, many of the cases say, 
 as to make the streets insufficient, or 
 unsafe, for ordinary travel. We can 
 conceive of no principle, and we know 
 of no authority, upon which it can be 
 held that a municipal corporation is 
 under a duty to protect the property 
 of a citizen from injury from the walls 
 of an adjacent building belonging to 
 a citizen, which the owner's negligence 
 has permitted to become dangerous. 
 Municipal corporations are not 
 charged with the duty of protecting 
 private property. There is, certainly, 
 nothing in the statute which imposes 
 such a duty upon them, and if not in 
 the statute, it does not exist." See 
 also Repck v. Newark, 33 N. J. L. 
 129 (1868); Howe V. New Orleans, 12 
 La. Ann. 481 (1857). 
 
 In Cain v. Syracuse, 95 N. Y. 83 
 (l884),it appeared that the defendants' 
 charter gave the common council 
 power to pass ordinances for the raz- 
 ing or demolishing of buildings made 
 dangerous by fire, and Finch, J., said : 
 " In this respect the power, and there- 
 fore the resultant duty, of the corpo- 
 ration is very different from that relat- 
 ing to the city streets, parks, avenues, 
 and buildings, which are within the 
 
62 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 §3 
 
 fireworks ; ^ and where a city suspended its ordinance foj 
 bidding the use of fireworks, it was held that there wa 
 no liability to one whose house was destroyed by th 
 negligent use of firewbrks by boys ; ^ and in a case wher 
 a city gave a license to permit the firing of a cannon ii 
 a public common, it was held that there was no liabilit; 
 for damages which resulted from the frightening of 
 horse in a neighboring street.* It has been held, how 
 
 corporate possession and control, 
 which involve no invasion of private 
 property or private right, and for the 
 negligent care of which the city is 
 alone responsible. The case relied 
 upon in behalf of the appellant is 
 mainly if not entirely of the latter 
 character. In Kiley v. City of Kan- 
 sas, 69 Mo. 102, 33 Am. Rep. 491, 
 the Court said : ' Had this wall been 
 standing in the centre of a lot or 
 block belonging to a private person, 
 the city may not have been liable for 
 injuries resulting from its fall.' The 
 wall fronted upon the street, menac- 
 ing the public, and was deemed a 
 public nuisance. In this case, too, 
 the common council had legislated 
 and passed an ordinance declaring all 
 buildings and structures dangerous to 
 the public, nuisances. In Parker v. 
 Mayor, etc. of Macon, 39 Ga. 725, the 
 wall stood on the edge of the side- 
 walk. In People v. Corporation of 
 Albany, 11 Wend. 539, the foul and 
 dirty basin endangered the public 
 health. In Jones v. New Haven, 34 
 Conn. I, the trees to be pruned were 
 in the streets and public parks. In 
 Norristown v. Mayor, 67 Penn. St. 
 356, the rotten liberty-pole stood in the 
 street. In all these cases, collected 
 for us by a faithful industry, the gen- 
 eral public were interested ; the cor- 
 poration could act without danger or 
 question of trespass. While here the 
 
 walls threatened only adjoining pr 
 vate property and endangered th 
 lives not only of the public but of th 
 adjoining owners or occupants." 
 
 ' McDade v. Chester, 117 Pa. 41 
 (1887). 
 
 ^ Hill V. Charlotte, 72 N. C. 55, 2 
 Am. Rep. 451 (1875). So where a 
 ordinance forbidding cattle to run i 
 large upon the street was suspendei 
 and a person using the street we 
 gored by a cow, it was held that thei 
 was no corporate liability. Rivers 
 Augusta, 67 Ga. 376, 38 Am. Rep. 78 
 
 " Lincoln v. Boston, 148 Mass. 57 
 3 L. R. A. 257 (1889). In Robinsc 
 V. Greenville, 42 Ohio St. 625, 51 An 
 Rep. 857 (1885), where the discharj 
 of a cannon in a public street w; 
 permitted, but not expressly autho 
 ized, it was said by Okey, J. : 
 
 " In an action against a municip 
 corporation to recover damages f( 
 an injury to the person, sustained I 
 reason of the negligence of the agen 
 of such corporation, it is important 
 ascertain with precision the du 
 which such agents failed to perfor 
 or performed negligently. For, a 
 though such corporations derive < 
 their powers from one source — nam 
 ly, the legislaturfc — and necessari 
 perform their functions solely 1 
 agencies, yet there is a marked di 
 tinction as to their liability for the ac 
 of their agents, arising from the d 
 
§35 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 ever, that a municipal corporation cannot by ordinance 
 suspend the duties which its charter puts upon it, and 
 
 ferent characters in which the corpo- 
 ration is charged with the performance 
 of duties. Thus, with respect to the 
 power to suppress riots and assem- 
 blages of disorderly persons, it has 
 been uniformly held, in the absence 
 of statutory provision to the contrary, 
 that the corporation is a mere agency 
 of the State, and not liable for negli- 
 gence in the performance of such 
 duties. Upon this principle it has 
 been held that there is no corporate 
 liability for the acts of a mob, although 
 the charter contains this provision as 
 to the duties of counsel : that ' it 
 shall be their duty to regulate the po- 
 lice of the city, preserve the peace, 
 prevent riots, disturbances, and dis- 
 orderly assemblages ' (Western Re- 
 serve College v. Cleveland, 12 Ohio 
 St. 375); nor is such corporation lia- 
 ble to an individual for damages re- 
 sulting from a failure to provide the 
 necessary agencies for extinguishing 
 fires, or for negligence of officers and 
 others connected with the fire depart- 
 ment, although the obligation to per- 
 form such duties is imposed by statute 
 (Wheeler v. Cincinnati, 19 Ohio St. 
 19); nor is a city liable for failure to 
 enforce an ordinance with respect to 
 the storage of oils, although its agent 
 had notice of the failure to observe 
 the ordinance, and notwithstanding 
 the fact that by reason of such unob- 
 servance the property of a citizen of 
 the corporation was destroyed (Rob- 
 erts V. Cincinnati, Sup. Ct. Gen. Term, 
 5 Am. L. Rec. 73). 
 
 " That firing . cannon in a public 
 street of a municipal corporation, ex- 
 cept in a case of imperative and urgent 
 necessity, is an intolerable nuisance, 
 and that all persons engaged in such 
 unlawful act are personally liable for 
 
 all damage caused thereby, are prop- 
 ositions concerning which there is no 
 room for difference of opinion. But 
 a very different question is presented 
 when it is attempted to fasten liabil- 
 ities for such injuries on a municipal 
 corporation. We cannot say that the 
 firing complained of in the petition 
 was licensed or expressly author- 
 ized 
 
 " The words of the petition, fairly 
 construed, charge no more than that 
 the authorities of the village permitted, 
 that it took no measures to prevent 
 such firing; and so the case clearly falls 
 within the first class to which we 
 have referred, and hence the corpora- 
 tion is not liable. Norristown v. Fitz- 
 patrick, 94 Pa. St. 121, and Boyland v. 
 New York, I Sand. S. C. 27 (1847), 
 are both remarkably like this case in 
 their facts, and in each it was held 
 that the corporation was not liable. 
 And see Campbell v. Montgomery, 53 
 Ala. 527 ; Lafayette v. Timberlake, 
 88 Ind. 330." 
 
 In Tindley v. Salem, 137 Mass. 171 
 (1884), it was also held that a city 
 was not liable for damages occasioned 
 by the negligence of its servants in the 
 discharge of fireworks which the city 
 undertook to display to celebrate a 
 holiday, pursuant to the authority of 
 a general statute. In this case the 
 fireworks were discharged in a public 
 square of the city. 
 
 In a decision rendered February 18, 
 1892, in the case of Spier v. The City 
 of Brooklyn, the city was held re- 
 sponsible for damages occasioned by 
 the negligent discharge of fireworks 
 by a licensee, to whom permission for 
 the display had been given by the 
 Mayor, under authority conferred 
 upon him by the city charter. The 
 
64 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 that if a license given by it is used so as to violai 
 one of these duties, and damage results, this may 1 
 
 following opinion was rendered by 
 Clement, Ch. J. : 
 
 " The plaintiff, on November 1, 1887, 
 was the owner and occupant of a 
 house on Montague Street, near the 
 Academy of Music, in this city, and 
 on that evening there was a display 
 of fireworks at the corner of Clinton 
 and Montague Streets. 
 
 " A political meeting was held at 
 the Academy, and the fireworks, con- 
 sisting of bombs, rockets, and Roman 
 candles, were exhibited for that rea- 
 son. A permit was given by the 
 Mayor, in writing, to the person who 
 received the contract, and such permit 
 named the place where the fireworks 
 should be set off. It is undisputed 
 that the display was extensive and 
 ' unusual to have at all ' (page 79, 
 sten. minutes). The evidence discloses 
 that a rocket entered an upper window 
 in the house of the plaintiff, and in a 
 few minutes fire broke out, and the 
 house, furniture, and other property 
 of the plaintiff were damaged by fire 
 and water. 
 
 " No authority has been cited by 
 the learned counsel for the city tend- 
 ing to show that it has ever been held 
 that it is lawful to set off fireworks in 
 a public street. On the contrary, 
 there are several authorities holding 
 that the discharge of fireworks on a 
 street is a nuisance per se. In Conk- 
 lin V. Thompson, 29 Barbour 218, 
 Judge John W. Brown said : ' The 
 streets of a city, and highways every- 
 where, are not unfrequently appropri- 
 ated to the uses of exploding fire- 
 crackers and similar contrivances. 
 Such acts are nevertheless wrongful. 
 They are tolerated and not authorized, 
 and those engaged in committing 
 them assume the responsibility of all 
 
 the bad consequences which ensi 
 Any injury to the persons of indivi 
 uals, any injury to property, anima 
 or inanimate, which result theret 
 create a liability on the part of i 
 wrong-doer to compensate the si 
 ferer.' In the case of Jenne v. Sutto 
 43 N.J. Law 257, the plaintiff was i 
 jured by the bursting of a bomb s 
 off on a street at a political meetii 
 in Jersey City, and Chief-Justice Bea 
 ley held as follows : ' As the use of 
 public highway as a place in which 
 fire such an explosive was illegal, ai 
 per se constituted a public nuisanc 
 there can be no question with respe 
 to the legal liability of all perso 
 concerned in the doing of such ; 
 act, or who caused or procured it 
 be done, for all the damages pro 
 imately resulting.' 
 
 " See also Wood on Nuisance 
 § 51 ; Scott V. Shepherd, 2 Blacksto 
 R. 892 ; Fish v. Waite, 104 Mass. 7 
 Bradley v. Andrews, 51 Vermont 53 
 § 385, Penal Code; Flynn v. Tayk 
 127 N. Y. at p. 599; Heeg v. Licl 
 80 N. Y. 579 ; Robinson v. Greenvil 
 42 Ohio State 625 ; Town of Rus 
 ville V. Adams, 107 Indiana 475. 
 
 " On the authorities above cited, 
 do not hesitate to hold that the e 
 hibition of fireworks in Montag 
 Street on the night in question was 
 public nuisance. 
 
 " The Mayor gave the permit 
 virtue of an ordinance (chap, iii., i 
 tide v., sec. 14): ' The use of firewoi 
 of all descriptions is prohibited witt 
 the city limits, except on the whole 
 the fourth day of July in each a 
 every year ; provided, however, tl 
 this section shall not apply to su 
 public displays as may be authoriz 
 iDy the city authorities, or such privi 
 
§35 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 65 
 
 recovered from the corporation.^ The power to legislate 
 is wholly within the charter held by the corporation, and 
 applies only to matters in regard to which the corporation 
 is under no legal duty. And it is to be further noticed 
 
 displays as may be allowed under per- 
 mit from the Mayor granted for such 
 purpose, etc' The ordinance was 
 valid and legal ; it authorized the 
 Mayor to give permits for private dis- 
 plays at proper places. Under it the 
 Mayor could license exhibitions At 
 Fort Greene Park, or on any public 
 square, but not lawfully on a street. 
 This distinction is borne out by the 
 authorities (Dowell v. Guthrie, 99 
 Missouri 653 ; Little v. Madison, 49 
 Wisconsin 605). 
 
 " The city is not liable for negli- 
 gence for failure to abate all nuisances 
 in a street. In this case, if no permit 
 had been given, there would be no 
 liability, for it is the duty of the police 
 force to suppress disorderly conduct 
 in the streets. The corporate duty 
 as to the care of streets where no li- 
 cense is given is to keep the same in 
 repair and free from encumbrances. 
 The duty is similar to that of Com- 
 missioners of Highways of towns. 
 The distmction between street and po- 
 lice nuisances is clearly pointed out in 
 the case of Davis v. Bangor, 42 Maine 
 522. See also Campbell v. Mont- 
 gomery, 53 Alabama 527. The city 
 is not liable for negatively permitting 
 fireworks in the streets (Hill v. Char- 
 lotte, 72 North Carolina 55), or for 
 negatively permitting the firing of 
 cannon in the streets (Robinson v. 
 Greenville, supra ; Norristown v. Fitz- 
 patrick, 94 Penn. State 121). It has 
 repeatedly been held that a city is not 
 responsible for the action or non- 
 
 action of members of its police or fire 
 forces (McKay v. Buffalo, 9 Hun 401, 
 affirmed in Court of Appeals, 74 N. 
 Y. 619 ; Smith v. Rochester, 76 N. Y. 
 506). 
 
 " From the testimony it appears 
 that the Mayor expressly licensed an 
 individual to set off fireworks on a 
 public street, and thereby authorized 
 a wrongful act. A lawful license is a 
 governmental act, but in my opinion 
 the licensing of a nuisance in a high- 
 way is an act of the municipality. I 
 have shown that a city is not liable for 
 failure to abate a police nuisance 
 where no license has been issued, be- 
 cause the police are not agents of the 
 city. A different question is presented 
 when a permit has been given, and 
 such nuisance would not have existed 
 without the permit. The streets are 
 under the care of the authorities of 
 the city. In the case of Cain v. Syra- 
 cuse, 95 N. Y. 83, 89, Judge Finch 
 held that, under a certain ordinance, 
 the city had no power to enter upon 
 private property to abate a nuisance, 
 and used these words : ' In this re- 
 spect, the power, and therefore the 
 resultant duty of the corporation, is 
 very different from that relating to 
 the city streets, parks, avenues, and 
 buildings, which are within the cor- 
 porate possession and control, which 
 involve no invasion of private prop- 
 erty or private right, and for the 
 negligent care of which the city is 
 alone responsible.' 
 
 " In Danaher v. Brooklyn, 1 19 N. Y. 
 
 ' McCouU V. Manchester, 85 Va. 579, 2 L. R. A. 
 5 
 
 691 (I 
 
66 
 
 SOLELY GOVERNMENTAL t)UTIES. 
 
 §35 
 
 that because a matter is within the discretion of a munic- 
 ipality is no reason for excusing such a body from the 
 requirements of the duty to exercise care at any stage of 
 the prosecution of a public work. No municipal corpora- 
 
 241, 250, Judge Earl said the city 
 ' owned this well as it owned other 
 property kept for public use, such as 
 streets, parks, and public buildings ; 
 and it owed the duty of reasonable 
 diligence to care for it as it was bound 
 to care for such other property.' If 
 the streets are in the possession and 
 control of the city, then I think that 
 the corporation has no more right to 
 license or maintain a nuisance on such 
 streets than an individual would have 
 on his own property (Hoag & Co. v. 
 Commissioners, 60 Indiana 511, and 
 cases cited). The city should be held 
 liable for licensing a police nuisance 
 on a street, because the streets are 
 under the control of the corporation. 
 In Little v. Madison, 42 Wisconsin 
 643, explained in the same case, 49 
 Wisconsin 605, it was held that the 
 city was liable under a similar state 
 of facts. In the case of Robinson v. 
 Greenville, supra, where cannon 
 were discharged in a highway, the 
 corporation was held not to be liable, 
 but in the opinion is to be found the 
 following suggestion : ' We cannot 
 say that the firing was licensed or ex- 
 pressly authorized.' In Buford v. 
 Grand Rapids, 53 Michigan 98, it ap- 
 pears that the city had licensed coast- 
 ing in a street, and the same claim 
 was made as in this case. Judge 
 Cooley says on this question : ' If it 
 were unquestionable that coasting 
 upon a public highway was always a 
 nuisance, there would be much plausi- 
 bility in this contention, and perhaps 
 it should be accepted as sound.' The 
 case of Cohen v. New York City, 113 
 N. Y., p. 532, seems almost in point, 
 
 for there it was held that the city, by 
 licensing a public nuisance in the 
 street, was liable for any damages re- 
 sulting therefrom, the same as if it 
 had itself maintained a nuisance. 
 Judge Peckham (page 538) said that 
 'the license itself, the permission, 
 with or without a consideration, to 
 obstruct the street at all for any such 
 purpose, as was the case here, is the 
 wrongful act on the part of the de- 
 fendant which renders it responsible 
 for the damage naturally sustained 
 from such obstruction.' In Danaher 
 v. Brooklyn (page 255), supra, Judge 
 Earl stated that a city 'is held re 
 sponsible for the nuisance which it 
 creates or permits and for its wrong 
 ful acts.' 
 
 " As already set forth, it was illega 
 to license the display of fireworks, 
 and while the question whether the 
 corporation is liable for the act of the 
 Mayor is not free from doubt, I am 
 inclined to hold that the city was re- 
 sponsible for the mistakeof its Mayor. 
 The ordinance gives him the right to 
 grant permits, and he erred solely in 
 the place designated for the exhibition. 
 The license was granted bona fide; 
 pursuant to a general authority to act 
 for the corporation on the subject 
 (Lee V. The Village of Sandy Hill, 40 
 N. Y. 442 ; The Buffalo & Hamburgh 
 Turnpike Co. v. The City of Buffalo, 
 58 N. Y. 639 ; Stoddard v. The Village 
 of Saratoga Springs, 127 N. Y. 261, 
 268). The Mayor, in the granting of 
 the permit, acted for the corporation, 
 and not in the performance of a duty 
 imposed upon him by law. It also 
 appears that for several years it has 
 
§35 
 
 SOLELY GOVERNMENTAL DUTIES. 
 
 67 
 
 tion is endowed with a discretionary or judicial power 
 which entitles it to leave out of consideration the safety 
 of the public, and if it negligently fails to regard this 
 safety, it violates a municipal and not a governmental 
 duty. 
 
 been customary for the Mayor, who 
 is the chief executive officer of the 
 city, to grant permits for the exhibi- 
 tion of fireworks at this particular 
 place, and as was stated in the case 
 of Cohen v. Mayor, supra, if it is 
 known that such permits are illegal, 
 and the city is held liable for the dam- 
 ages which result therefrom, it is 
 probable in the future that similar 
 permits will not be granted. 
 
 "An abutting owner can recover 
 damages for a private injury resulting 
 from a public nuisance on the street 
 (McDonald v. The City of Newark, 
 42 N. J. Equity 136; St. John v. 
 
 Mayor, 3 Bosworth 483). After a 
 careful examination of the'testimony, 
 I conclude that the plaintiff sustained 
 damages in the sum of eleven thou- 
 sand dollars, with interest from March 
 30, 1888." 
 
 This decision must be regarded as 
 questionable, for it is noticeable that 
 the damage was not to one using the 
 street, that the granting of the license 
 was for the public amusement and 
 benefit, and that it involved the exer- 
 cise of governmental power which had 
 been conferred upon the Mayor by a 
 valid city ordinance. 
 
 Infra, § 86. 
 
CHAPTER V. 
 
 LIABILITY FOR FAILING IN SOLELY MUNICIPAL DUTIES. 
 
 § 36. When a duty is solely municipal. 
 
 37. General responsibility for violation of such a duty. 
 
 38. Liability as owner of real property. 
 
 39. Duty to keep wharves in reasonably safe condition, 
 
 40. Supplying water for compensation. 
 
 41. Other instances of municipal duties. 
 
 § 36. When a duty is solely municipal. — A duty of a 
 municipal corporation may be said to be solely municipal 
 when it relates entirely to the business affairs of the mu- 
 nicipality as distinguished from its governmental affairs. 
 It is an obligation resting upon the corporation by virtue 
 of its undertaking some work or the control of some 
 property which might equally well be carried on or 
 managed by a private corporation. 
 
 The governmental character of the corporation is lost 
 sight of, as it thus engages in business pursuits and it 
 occupies the position of other members of society who 
 perform work for pay. Municipal corporations fre- 
 quently in this way use their real estate to increase their 
 revenues and engage in occupations by which they supply 
 their residents with conveniences of life and add mate- 
 rially to the public funds. 
 
 § 37. General responsibility for violation of such a duty.— 
 As an owner of such remunerative real property, and as 
 a participator in the business affairs of a community, it is 
 well settled that a municipal corporation is under the 
 same obligation to exercise care to carry on its concerns 
 without injuring others that rests upon other persons 
 similarly engaged. Although the profit derived from 
 
§ 38 SOLELY MUNICIPAL DUTIES. 69 
 
 such undertakings inures ultimately to the public, and is 
 not for private advantage, there is ground for distinguish- 
 ing the cases relating to such affairs from those relating 
 to the other concerns of the municipality, and there 
 seems to be special propriety in requiring the exercise of 
 care on the part of the corporation because the obliga- 
 tion to individuals is founded not only on the general 
 duty toward them, but also upon the fact that the mu- 
 nicipality has received compensation from them. 
 
 In regard to works of this character, then, the public 
 may assume that the duty to exercise care will be ob- 
 served, and if it is not, an action for negligence will lie 
 against the corporation on behalf of any individual who 
 has been injured.^ The courts have frequently and with 
 great unanimity applied this rule, as the succeeding 
 sections will show. 
 
 § 38. Liability as owner of real property. — If a munici- 
 pal corporation owns real estate and derives an income 
 from it, the corporation is liable for negligence in its 
 management as any other owner of similar property 
 would be.^ In an early New York case it was 
 
 'Consult Dillon on Munic. Corp., such powers precisely as are individ- 
 
 §§ 954. 984. 985, 986; Sherman & uals." 
 
 Redfield on Neg., § 286. In Welsh ' This proposition has been also up- 
 V. Rutland, 56 Vt. 228, 48 Am. Rep. held in Massachusetts, in a case 
 762(1883), Royce.C. J., says: "When, where a portion of a city hall was 
 however, municipal corporations are rented ; Worden v. New Bedford, 
 not in the exercise of their purely gov- 131 Mass. 23, 41 Am. Rep. 185 (1881), 
 ernmental functions, for the sole and and in a case where a building in a 
 immediate benefit of the public, but public common was rented ; Oliver v. 
 are exercising as corporations private Worcester, 102 Mass. 489 (1869). 
 franchise powers and privileges, which Both of these cases would probably 
 belong to them for their immediate have been differently decided were it 
 corporate benefit, or dealing with pro- not for the fact of renting in each 
 perty held by them for their corpo- case. See Worden v. New Bedford 
 rate advantage, gain, or emolument, (^z^^ra:) ; Clark v. Waltham, 128 Mass. 
 though inuring ultimately to the benefit 567 (1880); Steele v. Boston, 128 
 of the general public, then they be- Mass. 582 (1880) ; Eastman v. Mere- 
 come liable for negligent exercise of dith, 36 N. H. 296 (1858). But see 
 
 m/ra, Chapters XVI. and XVII. 
 
7° 
 
 SOLELY MUNICIPAL DUTIES. 
 
 §3! 
 
 said : ^ " The citizens and ttie municipal body in respect tc 
 their several possessions of real estate, stand upon a foot 
 ing of equality : neither is the privileged owner, and eacl 
 must fulfill the same duties in respect to the other." Thii 
 proposition has been referred to with approval both ii 
 England and in this country ; ^ but in view of the facts 
 the case in which it was made, it must be taken only ai 
 substantiating the claim that real estate held for munic 
 ipal purposes must be used subject to the obligation tc 
 exercise care. This principle has been upheld in a cas( 
 where a city owned a cemetery, and derived an incom( 
 therefrom,^ and. again where it appeared that a munici 
 
 ' Brower v. New York, 3 Barb. 254 
 (1848). 
 
 ' See Beven on Negligence, pp. 195, 
 196 ; Sherman & Redfiekl on Neg., 
 p. 494, note. 
 
 " Toledo V. Cone, 41 Ohio St. 149, 
 19 Cent. L. J. (1884). In this case 
 the court said : " The underlying prin- 
 ciple of municipal government is, that 
 the management of local affairs shall 
 be intrusted to local authorities, while 
 general affairs are left to the State 
 legislature. Under the power given 
 by the constitution to the general as- 
 sembly, to provide for the organiza- 
 tion of cities and incorporated vil- 
 lages, these corporations are made 
 the depositaries of certain limited 
 governmental powers, to be exercised 
 on behalf ol the State for the public 
 welfare. They are agencies or in- 
 strumentalities to which the general 
 assembly, vested with the legislative 
 power of the State, delegates a portion 
 of its governmental power, in order 
 to meet those local wants of the peo- 
 ple in cities and villages, for which 
 State laws make only general pro- 
 vision, leaving a more particular pro- 
 vision to local councils. The manner 
 and extent to which legislative and 
 
 governmental powers delegated t( 
 municipal corporations for the publii 
 good are to be exercised, must rest 
 in a large measure, in their judgmen 
 and discretion ; but, acting as Stati 
 instrumentalities, they cannot be heh 
 liable to individuals for a defect in tb 
 execution of such powers, unless 1 
 right of action is given by statute 
 Indeed, in the distribution of th 
 powers of government, they enjoy, ti 
 a certain extent, an immunity fron 
 civil action in the performance 
 their legislative functions, like that 
 the sovereign State itself. .... 
 
 •'But within the sphere of thei 
 duties, municipal corporations are t 
 be regarded in another and very diffei 
 ent aspect. While they act in a publi 
 character or capacity, and exercis 
 public powers, they may and do ac 
 also in a private capacity, like privat 
 corporations, and as such are held t 
 a like responsibility. Thus, if a mu 
 nicipal corporation acquires real 
 personal property, and in the dis 
 charge of what may be deemed mir 
 isterial duties in respect to the sami 
 an individual receives injury throug 
 the negligence of its officers or sei 
 vants, it should be held responsible t 
 
§ 39 
 
 SOLELY MUNICIPAL DUTIES. 
 
 71 
 
 pality operated a poor-farm for the support of its poor, 
 the court held the corporation liable for an injury occa- 
 sioned by negligently permitting a ram to be at large.^ 
 
 § 39. Duty to keep wharves in reasonably safe condition. — 
 It is the duty of all owners of wharves to keep them in 
 a condition suitable for use, and a municipal corporation 
 being such an owner is charged with this duty.^ Even if 
 
 that individual. Though not liable 
 for a defect of judgment or discretion, 
 while acting as a State instrumentality 
 in the exercise of legislative functions, 
 yet, having, like a private corporation 
 or natural person, become the owner 
 or obtained the control of property, it 
 should not be relieved from the oper- 
 ation of the general maxim, that one 
 should so use his own as not to injure 
 
 that which belongs to another 
 
 The cemetery and vault were a source 
 of benefit and advantage to the cor- 
 poration, and involved the same re- 
 sponsibility for their unsafe and im- 
 proper management, which pecuniary 
 and proprietary interests entail upon 
 natural persons. 
 
 " By an amendment of section 371 
 of the act of May, 1869, 68 Ohio 
 L. 130, the city had authority to 
 charge for burial lots, sufficient, not 
 merely to keep in order and embel- 
 lish the grounds, but also to reim- 
 burse the corporation for the cost of 
 lands purchased or appropriated for 
 cemetery purposes. The city vault 
 was used for public purposes, but it 
 was also used by private persons for 
 reward and hire, the money which 
 they paid being accounted for by the 
 trustees, as they accounted for the 
 proceeds of cemetery lots by them 
 sold for the city. The reimbursement 
 of the corporation treasury and the 
 emolument derived from the use of 
 the vault, were ior the special local 
 benefit of the corporation, and the 
 
 State at large had no interest therein. 
 The doctrine seems to be well sus- 
 tained, that where a municipal corpo- 
 ration owns property, and for its own 
 benefit derives pecuniary emolument 
 or advantage therefrom in the same 
 way a private owner might, it is liable 
 to the same extent as he would be, 
 for the negligent management thereof 
 to the injury of others." See also Cin- 
 cinnati v. Cameron, 33 Ohio 336 (1878). 
 
 ' Moulton V. Scarboro, 71 Me. 267 
 (1880). See supra, n. 5, p. 50. 
 
 ' Seamen v. New York, 80 N. Y. 
 239, 21 Alb. L. J. 275 (1880); Ken- 
 nedy V. New York, 73 N. Y. 365 
 {infra, p. 73); Fennimore v. New Or- 
 leans, 20 La. Ann. 124 (1868); Mem- 
 phis V. Kimbrough, 12 Heisk. (Ky.) 
 133; Crawford V. Allegheny City (Pa.), 
 16 Atl. Rep. 476 ; Willey v. Allegheny 
 City, 108 Pa. 490, 20 Am. & Eng. 
 C. C. 488; Grant v. Sligo Harbor 
 Com., 10 Ir. R. C. L. 190; Manhat- 
 tan Trans. Co. v. Mayor, 37 Fed. Rep. 
 160; Philadelphia, etc. Railroad v. 
 New York, 27 Am. & Eng. C. C. 9 ; 
 Hall V. Tillson, 81 Me. 362 (1889); 
 Morgan v. Morley, i Wash. 464 
 (1890); Jeffersonville v. Louisville, 
 etc. Ferry Co., 27 Ind. 100 (1866): 
 Low V. Grand Trunk Railroad Co., 
 72 Me. 313 ; Nickerson v. Tirrell, 127 
 Mass. 236 (1879); Carleton v. Fran- 
 conia Iron & Steel Co., 99 Mass. 216 
 (1868); Ahem v. Steel, 1 15 N. Y. 203, 
 5 L. R. A. 449 (1889); Swords v. Ed- 
 gar, 59 N. Y. 28. 
 
72 SOLELY MUNICIPAL DUTIES. | 3 
 
 the legal title to a pier is not in the city, if full contrc 
 over it is assumed, the city will be liable for negligenc 
 in respect to it.^ The ground of this liability is usuall 
 said to be that the corporation receives compensation fc 
 the use of its wharves and piers, and is therefore respor 
 sible as any one similarly paid to render a service woul 
 be responsible. Although this is often proper groun 
 upon which to rest the liability, yet it has been authoi 
 itatively decided in England that the fact that corr 
 pensation is received for the public benefit only is ur 
 important, as a corporation undertaking the managemen 
 and care of docks is bound to keep them in a reasonabl 
 safe condition for use, even if it does not receive pay o; 
 its own behalf.^ This case is more fully referred to i 
 a subsequent chapter, where the subject of the liabilit 
 of municipal corporations as owners of property is di: 
 cussed.^ 
 
 A corporation in charge of a dock or pier must kee 
 the approaches to it safe,* although it is under no oblige 
 tion to keep the river, in which the dock is, unobstructed 
 So it must supply sufficient fastenings for use by vessels 
 Where a city leased a pier, and the lessee was negliger 
 in allowing spiles which he had driven in front of th 
 pier to become loose and injure a passing steam-tug, 
 
 'Pittsburgh v. Grier, 22 Pa. 54 Mass. 216; Sawyer v. Oakman, I Lo 
 
 (1853). See as to when a public (U. S. D. Ct.) 134, 7 Blatch. C. C. 2< 
 
 quay becomes private property, New (1870); The Douglas, L. R. 7 P. Di 
 
 Orleans v. Louisiana Const. Co., 140 151. 
 
 U.S. 654, II Sup. Ct. Rep. 968 (1890). ' Coonley v. Albany, 57 Hun 3; 
 
 ' Mersey Docks v. Gibbs, L. R. i (1890); Winpenny v. Philadelphia, ( 
 
 H. L. 93; Smith v. London, etc. Pa. 135 (1870). A corporation ha 
 
 Docks Co., L. R. 3 C. P. 326. ing the control of a water-way ai 
 
 ' Infra, Chap. XVII. receiving toll for its use is bound 
 
 '' Barber v. Abendroth, 102 N. Y. exercise care to keep the way fr 
 
 406 (1886); Smith V. Havemeyer, 36 from obstructions. See zn/ra, n. 
 
 Fed. Rep. 927 ; Petersburg v. Apple- p. 77. 
 
 grath, 28 Gratt. (Va.) 321 ; Carleton " Shingle v. Covington, I Bus 
 
 V. Franconia Iron & Steel Co., 99 (Ky.) 617 (1866). 
 
§ 39 
 
 SOLELY MUNICIPAL DUTIES. 
 
 11 
 
 was held in New York that the city could not be held 
 liable for the resulting damages.^ 
 
 The duty of keeping a dock safe extends to those 
 coming upon it from the land as well as to those ap- 
 proaching it by water, and where an accident was caused 
 by the absence of string-pieces the city was held liable 
 for the injuries.*' And before a dock is ready for use the 
 public must be warned away from it* 
 
 • Seamen v. New York, 80 N. Y, 
 239 (1880); see also Jackson v. Al- 
 legheny City (Pa.), 29 Am. & Eng. 
 C. C. 41 1 ; Leary v. Woodruff, 4 Hun 
 (N. Y.) 99, affi'd 76 N. Y. 617 ; Leon- 
 ard V. Decker, 22 Fed. Rep. 741 (1884). 
 
 '^ Kennedy v. New York, 73 N. Y. 
 365 (1878). In this case, Andrews, J., 
 says: "What caused the plaintiff's 
 horse to become unmanageable is not 
 stated. It occurred while the plain- 
 tiff was backing up his cart, and the 
 inference is that the plaintiff had hold 
 of the horse at the time, and the com- 
 plaint shows that if the string-piece 
 had been there the horse would not 
 have been lost. The absence of the 
 string-piece must, for' the purpose of 
 the action, be deemed to be the proxi- 
 mate cause of the loss. It would be 
 refining quite too much to hold that 
 the sudden backing of the horse, con- 
 trary to the will of the owner, was the 
 cause of the accident, so as to relieve 
 the defendant from liability. The city 
 was charged with the duty of keeping 
 the dock in a safe condition, and if in 
 using it in the customary way the 
 plaintiff's horse, without his negli- 
 gence, was lost, the city is liable, al- 
 though the horse was not at the 
 moment obedient to the will of the 
 owner. The cases of Clark v. Union 
 Ferry Co., 35 N. Y. 485, and Rad- 
 way V. Briggs, 37 Id. 256, sustain 
 the right of the plaintiff to recover 
 upon the facts presented. 
 
 " We are not called upon to decide 
 what the rights of an owner would be 
 against a municipality charged with 
 the duty of keeping a highway or 
 public place in repair, in case of an 
 injury to his horse, which had es- 
 caped from his control, and in run- 
 ning away came upon an unsafe 
 bridge or an unguarded embankment, 
 and was thrown into the stream or 
 down the embankment. Injury to 
 the horse under such circumstances 
 at some point in its unrestrained 
 course would be likely to happen, 
 whether the way was in repair or not, 
 and because it happened at the partic- 
 ular point where the way was insecure 
 or out of repair, and would not have 
 happened in the precise manner it 
 did, except for the defect in the way, 
 might not justify a recovery. In the 
 case supposed it might, perhaps, be 
 reasonably claimed that the fright of 
 the horse was the cause of the injury, 
 and that the town or municipality 
 charged with the duty of keeping the 
 way in repair did not assume the risk 
 of accident under such circumstances. 
 It is sufficient to say that this case 
 does not call for the application of 
 such a rule." See also Allegheny 
 City V. Campbell, 107 Pa. 530; Mc- 
 Guiness v. New York, 52 How.Pr. 450. 
 
 8 Heissenbuttel v. New York, 30 
 Fed. Rep. 456 (1886); compare Will- 
 iams V. Swansea Harbor Trustees, 14 
 C. B. N. S. 845 (1863). 
 
74 
 
 SOLELY MUNICIPAL DUTIES. 
 
 The owner of a dock, however, is not under a duty 
 maintain a sufficient depth of water at all times, and il 
 vessel remains too long and is injured by reason of t 
 change in the tide, there is no liability on the part 
 such owner,^ provided he has exercised care to noti 
 those using it of the danger of remaining.* 
 
 § 40. Supplying water for compensation. — By the ge 
 eral consent of all courts cities supplying water for co 
 pensation are bound to exercise care in the prosecuti 
 of the work, so that they shall not negligently inji 
 others ; and they are charged with obligations similar 
 those that rest upon private water companies.^ 
 
 ' Onderdonk v. Smith, 23 Blatch. 
 C. C. 562 (1886); Vroman v. Rogers, 
 5 N. Y. Supp. 426 (1889). 
 
 •^ Barber v. Abendroth, 102 N. Y. 
 406 (1886). 
 
 3 In Bailey v. New York, 3 Hill 
 531 (1842), Nelson, Ch. J., said : 
 
 "The powers conferred by the sev- 
 eral acts of the legislature authorizing 
 the execution of this great work are 
 not, strictly and legally speaking, con- 
 ferred for the benefit of the public. 
 The grant is a special, private fran- 
 chise, made as well for the private 
 emolument and advantage of the city 
 as for the public good. The State, 
 in its sovereign character, has no in- 
 terest in it. It owns no part of the 
 work. The whole investment under 
 the law, and the revenue and profits 
 to be derived therefrom, are a part of 
 the private property of the city, as 
 much so as the lands and houses be- 
 longing to it, situate within its cor- 
 porate limits. The argument of the 
 defendants' counsel confounds the 
 powers in question with those be- 
 longing to the defendants in their 
 character as a municipal or pubUc 
 body — such as are granted exclu- 
 
 sively for public purposes to couni 
 cities, towns, and villages where 
 corporations have, if I may so spi 
 no private estate or interest in 
 grant. As the powers in ques 
 have been conferred upon one 
 these public corporations, thus ble 
 ing in a measure those conferred 
 private advantage and emoliin 
 with those already possessed for { 
 lie purposes, there is some diffia 
 I admit, in separating them in 
 mind and properly distinguishing 
 one class from the other, so as to 
 tribute the responsibiUty attachin 
 the exercise of each. But the 
 tinction is quite clear and well set 
 and the process of separation pr 
 cable. To this end, regard shoul 
 had, not so much to the nature 
 character of the various powers 
 ferred, as to the object and purpo: 
 the legislature in conferring them, 
 granted for public purposes e: 
 sively, they belong to the corpc 
 body in its public, political, or 
 nicipal character. But if the grant 
 for purposes of private advantage 
 emolument, though the public 
 derive a common benefit therel 
 
40 
 
 SOLELY MUNICIPAL DUTIES. 
 
 75 
 
 If, therefore, there is an escape of water from the 
 mains or reservoirs, and this is caused by the negligence 
 of the employees of the city, the corporation will be 
 responsible for the damages resulting.^ But not if the 
 defect is in the pipes inserted in the mains by con- 
 
 the corporation, quoad hoc, is to be 
 regarded as a private company. It 
 stands on the same footing as would 
 any individual or body of persons 
 upon whom the like special franchises 
 had been conferred." 
 
 In Aldrich v. Tripp, ii R. 1. 141, 23 
 Am. Rep. 434 (1875), Durfee, C. J., 
 says: 
 
 " The water-works are the property 
 of the city, which is entitled to the 
 rents and profits derivable from them. 
 The city has complete power to reg- 
 ulate the distribution of water, and to 
 determine for what public purpose it 
 may be employed. The service ren- 
 dered by the commissioners is rather 
 a service to the city than to the State 
 or public at large. We do not think 
 it material that the public has the 
 use of the water-works for the extin- 
 guishment of fires. The injury com- 
 plained of did not result from any 
 use of them by the fire department. 
 It is claimed to have resulted from the 
 careless management of a hydrant by 
 employees of the water commissioners. 
 We presume those employees were 
 acting in the general course of their 
 employment. They are therefore to 
 be regarded as acting for the city, and 
 as its servants, if the water commis- 
 sioners are to be regarded as its agents 
 or servants of the city. We think, in 
 view of the cases referred to, and 
 especially in view of the case of Bailey 
 V. The Mayor, etc. of New York, ante, 
 3 Hill N. Y. 531, they are to be so 
 regarded. And see Brooks v. The 
 Inhabitants of Somerville, io6 Mass. 
 
 271." See also Darlington v. New 
 York, 31 N. Y. 164; McAvoy v. New 
 York, 54 How. Pr. 245 (1877) ; Jenney 
 V. Brooklyn, 120 N. Y. 164 (1890); 
 Wilson V. New Bedford, io8 Mass. 
 261 ; Smith v. Philadelphia, 22 Am. 
 Rep. 731 ; Philadelphia v. Collins, 68 
 Pa. 106 (1871); Western Sav. Fund 
 So. V. Philadelphia, 31 Pa. 175 (1858). 
 
 ' Stock V. Boston, 149 Mass. 410 
 (1889). In Hand v. Brookline, 126 
 Mass. 324 (1879), Gray, C. J., says: 
 "The cause of action set forth in 
 this count is not the omission to 
 perform the duty, imposed by general 
 laws upon all the cities and towns 
 alike, of keeping the highways in re- 
 pair ; but it is the neglect in the con- 
 struction of works which the town 
 had been authorized by a special 
 statute, voluntarily accepted, to coij- 
 struct and to receive profits from, just 
 as a private corporation might. For 
 a neglect in the manner of construct- 
 ing such works, by which injury is 
 caused to person or property,, a town 
 is just as liable as a private corpora- 
 tion or an individual. 
 
 " If the water escaping from the 
 aqueduct by reason of its negligent 
 and imperfect construction had in- 
 jured buildings or crops, there could 
 be no doubt of the right of the owner 
 to recover damages against the town. 
 The fact that the injury occasioned 
 was within the limits of a highway, 
 where the person injured had a law- 
 ful right to be, affords no ground for 
 exempting the town from this liabil- 
 ity." 
 
76 SOLELY MUNICIPAL DUTIES. § 41 
 
 sumers.^ And if a water-box in a street is carelessly 
 allowed to become dangerous, and is owned by the city, 
 the city will be held responsible for an injury occasioned 
 by its presence in the street, even in a locality where no 
 common-law duty to keep the streets reasonably safe is 
 recognized.* And if a hole in a street is caused by the 
 presence of a water-box belonging to the city, and is 
 negligently allowed to remain, an action can be main- 
 tained against the city for any damages sustained 
 thereby.^ 
 
 In a recent case an attempt was made to carry the 
 rule of responsibility by reason of the ownership of 
 water-works to the extent of making a city liable on 
 this ground for failure to prevent the destruction of 
 property by fire.* The court, however, refused to admit 
 the soundness of the contention, and we have seen that 
 a municipal corporation is under no legal obligation to 
 save the property of its citizens, and because the corpora- 
 tion undertakes to aid the public in this way, is no reason 
 for putting an obligation upon them which would not 
 attach to a private corporation providing water for the 
 ordinary use of the city. 
 
 § 41. Other instances of municipal duties. — If a munic- 
 ipal corporation manufactures and supplies gas for com' 
 
 1 Terry v. New York, 8 Bosw. 504 duty of repairing the highway at tha 
 (1861) ; Treadwell v. New York, i point. Por an injury caused by it: 
 Daly 123 (i860). failure to repair the highways withii 
 
 2 Wilkins v. Rutland, 61 Vt. 336 its limits the defendant is not liable 
 (1889). The court says in this case : but for an injur)' caused by its failun 
 
 " The cause of the accident was the to properly maintain its aqueduct it i 
 
 improper condition of the water-box, liable." See also Welsh v. Rutland 
 
 or the negligence of the defendant in 56 Vt. 228. 
 
 maintaining it in a proper condition. ' Grimes v. Keene, 52 N. H. 33 
 
 This places the neglect upon the de- (1872). See Butler v. Bangor, 6 
 
 fendant as the owner and manager of Me. 388 (1877). 
 
 the aqueduct, and not as having the * Mendel v. Wheeling, 28 W. Va 
 
 supervision of and charged with the 233 (1886). 
 
§41 
 
 SOLELY MUNICIPAL DUTIES. 
 
 n 
 
 pensation, it is liable as a private gas corporation would 
 be.* So if it maintains a public market.'^ And where 
 wash-houses were erected for public use on the payment 
 of a fee, it was held that the city was liable for an injury 
 resulting from a defect in a wringing-machine which it 
 negligently allowed to be used.^ 
 
 And it may be said generally that whenever a munic- 
 ipal corporation engages in any business enterprise or 
 undertakes to perform any work for its citizens for com- 
 pensation, it will be held to the same responsibility for 
 negligence that the law imposes upon private corpora- 
 tions doing similar work.* 
 
 ' Western Savings Society v. Phila- 
 delphia, 31 Pa. 17s (1858) ; Scott V. 
 Manchester, i H. & N. 59, affi'd 2 Id. 
 204 (1857). 
 
 ' Suffolk V. Parker, 79 Va. 660, 52 
 Am. Rep. 640 (1884) ; Weymouth v. 
 New Orleans, 40 La. Ann. 344 (1888) ; 
 Savannah v. CuUens, 38 Ga. 334 
 (1868) ; Lax v. Darlington, L. R. 5 
 Ex. D. 28 (1879). 
 
 ' Cowley v. Sunderland, 6 H. & N. 
 56s (1861). 
 
 * Thompson on Neg., p. 738; Am. 
 & Eng. Encyc. of Law, vol. 15, p. 
 1 1 55. The State of New York as 
 
 owner of its canals is made liable by 
 statute for the negligence of its offi- 
 cers in regard to them. See Yates v. 
 State, 128 N. Y. 221 (1891) ; Bene- 
 dict V. State, 120 N. Y. 228 (1890) ; 
 Rexford v. State, 105 N. Y. 229 
 (1887) ; Silby Mfg. Co. v. State, 104 
 N. Y. 562, II N. E. Rep. 264 (1887). 
 As to the liability of private canal cor- 
 porations, see Parnaby v. Lancaster 
 Canal Co., 11 Ad. & El. 223; Riddle 
 v. Prop, of Locks, 7 Mass. 169; Thomp- 
 son on Neg., p. 541 (1839) ; Sherman 
 & Redfield on Neg., § 398 et seq. 
 
CHAPTER VI. 
 
 LIABILITY FOR NEGLECTING MUNICIPAL DUTIES REL 
 ING TO GOVERNMENTAL AFFAIRS HIGHWAYS. 
 
 § 42. Instances of municipal duties concerning governmental affairs. 
 
 43. Difference of opinion respecting duty to repair highways. 
 
 44. Position of the New England courts. 
 
 45. Hill V. Boston. 
 
 46. Earliest English cases. 
 
 47. Russell V. Men of Devon. 
 
 48. Incorporated municipalities held liable for damages. 
 
 49. Contradictory decision regarding local boards. 
 
 50. Conclusion from English authorities. 
 
 § 42. Instances of municipal duties concerning govt 
 mental affairs. — Upon coining to a consideration of th 
 duties which relate to both governmental and munici 
 matters, it must be conceded that ground has b( 
 reached where the authorities are sharply conflicting z 
 where many questions of difficulty are presented. 1 
 fact that these duties relate to matters of governm 
 has led many courts to conclude that there should not 
 any civil liability for a failure to properly discharge thf 
 and that the breach of duty was simply a neglect of 
 sovereign power to perform its voluntarily assumed o 
 gations. On closer observation, however, it is seen t 
 the particular duties in question do not require the ej 
 cise of governmental discretion, but that they are wh( 
 ministerial and relate to the local strength of the mui 
 ipalities upon which they rest, and that, therefore, th 
 is no sufficient reason for exempting municipal corp< 
 tions from the ordinary consequences of their violati 
 For the necessities of government do not require freed 
 
§ 43 . CONFLICTING VIEWS REGARDING HIGHWAYS. 79 
 
 from liability, and the exemption in the State's favor should 
 be limited by these necessities. And whenever these corpo- 
 rations enter upon the performance of ministerial duties, 
 forced upon them by the rights of others, it seems just 
 that they should assume the civil liability which is the 
 greatest safeguard that these duties will be discharged. 
 
 The most prominent illustration of a duty which par- 
 takes of this dual character is the obligation which rests 
 upon municipalities to keep their highways in reasonably 
 safe condition for use, while another and exceedingly im- 
 portant duty of the same class is the obligation to keep 
 drains and sewers in a similar condition. Both of these 
 duties concern the welfare of the public and relate to gov- 
 ernmental matters, and yet they are purely ministerial du- 
 ties growing out of the property rights of the corpora- 
 tion, the disregard of which prevents the general public 
 from a proper enjoyment of its rights. As the two du- 
 ties mentioned, however, are not treated as similar by the 
 courts which deny that there is any municipal liability for 
 negligence in failing to repair a highway, and as in re- 
 spect to this latter question there is much diversity of 
 opinion, it seems advantageous to first consider the gen- 
 eral law relating to this question and its application, and 
 to examine the duty respecting drains and sewers in an- 
 other. place. 
 
 § 43. Difference of opinion respecting the duty to repair 
 highways. — The control of the highways in a State is 
 ordinarily within the power of the State itself, and so 
 much so that the State may in some instances undertake 
 to repair them ;^ and yet the duty to repair a highway 
 
 ' In People ex rel. Morrill v. Super- the towns, villages, and cities in which 
 
 visors, 112 N. Y. 585 (1889), Andrews, they are located shall initiate the pro- 
 
 J., says : " The general statutory sys- ceedings for, and bear the burden of, 
 
 tern for laying out, opening, and im- their establishment, construction, and 
 
 proving highways contemplates that maintenance. This plan is in har- 
 
80 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. . § 43 
 
 when it rests upon a corporate body, with means of dis- 
 charging it, is a clearly defined ministerial duty involving 
 the exercise of no governmental function, and one which 
 relates to the property of the corporation and which in 
 its discharge adds to the individual strength of the 
 municipality. And it is believed that notwithstanding 
 the firmness with which the contrary doctrine is adhered 
 to by courts of high standing, the weight of authority is 
 so strongly in favor of the view that for a failure to dis- 
 charge the duty to keep streets in repair there is an im- 
 plied common-law liability for resulting damages, resting 
 upon every chartered municipality; that there should no 
 longer be any doubt as to what is the common-law rule 
 upon the subject. But as the fact whether this liability 
 arises from the common-law rule or from statute, in any 
 particular locality, is of the utmost importance in deter- 
 mining questions of liability for a violation of this duty 
 in particular cases, and also as the position taken upon 
 this question often controls the view taken upon other 
 and new questions of municipal liability for negligence, 
 it is important to reach the correct rule upon the subject. 
 And for the purpose of aiding in the accomplishment of 
 this object a full presentation of the conflicting author- 
 ities upon this question is made. 
 
 mony with the general theory of our Flagg, 46 N. Y. 401, which adjudged 
 
 legislation, that, so far as practicable, that it was competent for the legisla- 
 
 matters of administration specially ture, by special act, to authorize and 
 
 affecting the public interests of a par- direct the laying out and improve- 
 
 ticular locality should be controlled ment of highways, in certain towns in 
 
 by the local government, subject to the county of Westchester, and to 
 
 such general regulations as may be provide that the money required to 
 
 necessary for the common good. But meet the expenses to be incurred 
 
 the legislature, unless restrained by should be raised by the sale of town 
 
 constitutional limitations, may resume bonds of the respective towns, to be 
 
 powers delegated to localities and as- issued as specified in the act." See 
 
 sume the direct control of matters People v. Baltimore, etc. Railroad 
 
 pertaining to local government. This Co., 117 N. Y. 150 (T889); Meyer v. 
 
 principle was applied in the case of Teutopolis, 131 111. 552 (1890). 
 highways in People ex rel. etc. v. 
 
§§ 44. 45 CONFLICTING VIEWS REGARDING HIGHWAYS. 8 1 
 
 § 44. Position of the New England courts. — The courts 
 of New England, and especially those of Massachusetts, 
 have been the chief upholders of the theory that no lia- 
 bility attaches even to a chartered city for negligence 
 respecting the care of its streets. Some few courts out- 
 side of New England have adopted the same view, and 
 in nearly all of these localities statutes have been resorted 
 to for the purpose of curing this apparent defect in the 
 common law. The leading defense of this theory has 
 been made by the Massachusetts Supreme Court in a 
 case which has been and still is widely cited and fre- 
 quently quoted from, and wherein the English and 
 American authorities were elaborately reviewed. 
 
 This is the case of — 
 
 § 45. Hill V. Boston.^ — In this case an action of tort 
 was brought against the city of Boston to recover dam- 
 
 ' 122 Mass. 344, 23 Am. Rep. 332, 6 
 Am. & Eng. C. C. 54 (1877). In view 
 of the importance of this opinion, a con- 
 siderable portion of it is here given. 
 The opinion was rendered by Gray, C. 
 J., who said : " We had supposed it to 
 be well settled in this Commonwealth 
 that no private action, unless author- 
 ized by express statute, can be main- 
 tained against a city for the neglect of 
 a public duty imposed upon it by law 
 for the benefit of the public, and from 
 the performance of which the corpo- 
 ration receives no profit or advantage. 
 But, it having been suggested at the 
 argument that the recent opinions of 
 the Supreme Court of the United 
 States tended to a different result, the 
 respect due to that high court, even 
 in matters in which we are not bound 
 by its decisions, have led us to re-ex- 
 amine the foundations upon which 
 our law rests, and in stating our con- 
 clusions, we make fuller reference to 
 the authorities than might under other 
 6 
 
 circumstances have been thought ex- 
 pedient. 
 
 " In a case in this court, in 1810, 
 in which an action was maintained 
 against a corporation chartered to 
 maintain a canal and to take tolls 
 thereon, for suffering its canal to be 
 out of repair, whereby the plaintiff's 
 raft stuck fast and was injured. Par- 
 sons, C. J., said, that although quasi 
 corporations, such as counties and 
 hundreds in England, and counties 
 and towns in this State, were liable 
 to information or indictment for a neg- 
 lect of a public duty imposed on them 
 by law, yet it was settled in the case 
 of Russell V. Men of Devon, above 
 cited, that no private action could be 
 maintained against them for a breach 
 of their corporate duty, unless such 
 action was given by statute. Riddle 
 V. Proprietors of Locks and Canals, 7 
 Mass. 169, 187. 
 
 " Two years later, the question was 
 directly presented for judgment, in an 
 
82 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. 
 
 45 
 
 ages for an injury received by a child while attending one 
 of the public schools, which the city was bound by law 
 to keep and maintain. The plaintiff offered to prove that 
 the school was on the third floor of the building in which 
 it was kept ; that the staircase was winding, and the rail- 
 ing thereof so low as to be dangerous, and that while he 
 was going to school, and exercising due care, he fell over 
 the railing of the second flight of stairs and was seriously 
 
 action at common law against a town 
 for a personal injury caused by a defect 
 in a highway, of which the town had 
 not had the notice required to charge 
 it under the statute, it was argued for 
 the plaintiff that none of the objec- 
 tions which prevailed in Russell v. 
 Men of Devon applied, because here 
 the town was a corporation created 
 by statute, capable of suing and being 
 sued, was bound by statute to keep 
 the public highways in repair, was 
 called upon to answer only for its own 
 default, and had a treasury out of 
 which judgments recovered against it 
 might be satisfied ; and that the ob- 
 iection that a multiplicity of actions 
 would be the consequence of levying 
 the execution on one or more inhabit- 
 ants of the town could have no effect, 
 because it would equally apply to every 
 action against a town or parish, and 
 yet such actions were every day 
 brought and supported. But the court 
 -arrested judgment, saying: ' 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 ^aii« 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 be 
 
 given by some statute.' Mower v. 
 Leicester, 9 Mass. 247, 250. 
 
 " Those cases have ever since been 
 considered as having established in 
 this Commonwealth the general doc- 
 trine that a private action cannot be 
 maintained against a town or other 
 quasi corporation for a neglect of 
 corporate duty, unless such action is 
 given by statute. White v. Phillips- 
 ton, 10 Met. 108, no; Sawyer v. 
 Northfield, 7 Cush. 490, 494 ; Bigelow 
 v. Randolph, 14 Gray 541, 543, and 
 they have been approved and followed 
 throughout New England : Adams v. 
 Wiscasset Bank, i Greenl. 361, 364; 
 Reed v. Belfast, 20 Me. 246, 248; 
 Farnum v. Concord, 2 N. H. 392; 
 Eastman v. Meredith, 36 N. H. 284, 
 297-300; Hyde v. Jamaica, 27 Vt. 
 443, 457 ; State v. Burlington, 36 Vt. 
 521, 554; Chidsey V. Canton, 17 Conn. 
 475, 478 ; Taylor v. Peckham, 8 R. I. 
 
 349. 352 
 
 " In this Commonwealth, an act of 
 the legislature changing a town into 
 a city has never been considered as 
 enlarging civil remedies for neglect of 
 corporate duty ; and it has been con- 
 stantly held that a city, like a town, 
 is not liable to an action for a defect 
 in a highway, except so far as the 
 right to maintain such an action has 
 been clearly given by statute. Brady 
 v. Lowell, 3 Cush. 121; Harwoodv. 
 Lowell, 4 Cush. 310 ; Hixon v. Lowell, 
 
§ 45 CONFLICTING VIEWS REGARDING HIGHWAYS. 83 
 
 injured, and that the school committee of the city had 
 full knowledge of the dangerous character of the build- 
 ing, and had promised to repair it. Upon these facts it 
 was claimed that the city was liable for the injuries re- 
 ceived by the scholar. But the court refused to concede 
 that there would be any liability upon the facts stated, and 
 held that the neglect, if any, was the neglect by the city 
 
 13 Gray 59, 64; Oliver v. Worcester, 
 102 Mass. 489. The same view has 
 been talcen in other New England 
 States, and in New Jersey, Michigan, 
 and California. Morgan v. Hallowell, 
 57 Me. 375, 378 ; Jones V. New Haven, 
 34 Conn. I, 13 ; Hewison v. New 
 Haven, 37 Conn. 475 ; Pray v. Jersey 
 City, 3 Vroom 394 ; Detroit v. Blacke- 
 by, 21 Mich. 84; Winbigler v. Los 
 
 Angeles, 45 Cal. 36 
 
 " If a city or town negligently con- 
 structs or maintains the bridges or cul- 
 verts in a highway across a navigable 
 river, or a natural watercourse, so as 
 to cause the water to flow back upon 
 and injure the land of another, it is 
 liable to an action of tort, to the same 
 extent that any corporation or individ- 
 ual would be liable for doing similar 
 acts. Anthony v. Adams, I Met. 284, 
 285 ; Lawrence v. Fairhaven, 5 Gray 
 no; Perry v. Worcester, 6 Gray 544 ; 
 Parker v. Lowell, 11 Gray 353; 
 Wheeler v. Worcester, 10 Allen 591. 
 So if a city, by its agents, without 
 authority of law, makes or empties a 
 common sewer upon the property of 
 another to his injury, it is liable to 
 him in an action of tort. Proprietors 
 of Locks & Canals v. Lowell, 7 Gray 
 223 ; Hildreth v. Lowell, 1 1 Gray 345 ; 
 Haskell v. New Bedford, 108 Mass. 
 208. But in such cases, the cause of 
 action is not neglect in the perform- 
 ance of a corporate duty, rendering a 
 public work unfit for the purposes for 
 
 which it is intended, but it is the doing 
 of a wrongful act, causing a direct 
 injury to the property of another, out- 
 side of the limits of the public work. 
 
 " As to common sewers, built by 
 municipal authorities under a power 
 conferred by law, it has been held, 
 upon great consideration, that, as the 
 power of determining where the sew- 
 ers shall be made involves the exercise 
 of a large and ^«(7jzjudicial discretion, 
 depending upon considerations affect- 
 ing the public health and general con- 
 venience, therefore no action lies for a 
 defect or want of sufficiency in the 
 plan or system of drainage adopted 
 within the authority so conferred ; but 
 that, as the sewer acts were not made 
 applicable to any city, unless accepted 
 by it, and, when accepted, and the 
 sewers built, vested in the city the 
 property in the sewers, and author- 
 ized it to assess the expense of con- 
 struction upon the lands immediately 
 benefited, and as the duty of con- 
 structing the sewers and keeping 
 them in repair was merely ministerial, 
 therefore, for neglect in the construc- 
 tion or repair of any particular sewer, 
 whereby private property was injured, 
 an action might be maintained against 
 the city. Gen. Sts., c. 48 ; Sts., 1841, 
 c. 115; 1857, c. 225; 1869, c. hi; 
 Child v. Boston, 4 Allen 41 ; Emery 
 v. Lowell, 104 Mass. 13 ; Merrifield v. 
 Worcester, no Mass. 216. 
 
 " The only other cases in Massa- 
 
84 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. 
 
 45 
 
 of a public duty imposed upon it by general law for the 
 benefit of the public, from the performance of which the 
 corporation received no profit, and for the breach of which 
 the corporation was not liable. In his opinion in the 
 case, Chief-Justice Gray discussed at length the questions 
 presented in actions to recover damages by defects in 
 highways, and reviewed the English and American cases 
 upon this subject, reaching the conclusion that at com- 
 
 chusetts which need be mentioned, 
 are those in which a city, holding and 
 dealing with property as its own, not in 
 the discharge of a public duty, nor for 
 the direct and immediate use of the 
 public, but for its own benefit, by re- 
 ceiving rents or otherwise, in the same 
 way as a private owner might, has 
 been held liable, to the same extent 
 as he would be, for negligence in the 
 management or use of such property 
 to the injury of others. Thayer v. 
 Boston, 1 9 Pick. 511 ; Oliver v. Wor- 
 cester, 102 Mass. 489. The distinc- 
 tion between acts done' by a city in 
 discharge of a public duty, and acts 
 done for what has been called, byway 
 of distinction, its private advantage or 
 emolument, has been clearly pointed 
 out by two eminent judges, while sit- 
 ting in the supreme courts of their 
 respective States, who have since 
 acquired a wider reputation in the 
 Supreme Court of the Union, and by 
 the present Chief-Justice of England. 
 Nelson, C. J., in Bailey v. Mayor, etc. 
 of New York, 3 Hill 531, 539 ; Strong, 
 J., in Western Savings Fund Society 
 v. Philadelphia, 31 Penn. St. 185, 189 ; 
 Cockburn, C. J., in Scott v. Mayor, 
 etc. of Manchester, 2 H. & N. 204, 
 
 210 
 
 " The result of this review of the 
 American cases may be summed up 
 as follows : There is no case, in which 
 the neglect of a duty, imposed by 
 
 general law upon all cities and towns 
 alike, has been held to sustain an 
 action by a person injured thereby 
 against a city, when it would not 
 against a town. The only decisions 
 of the State courts, in which the mere 
 grant by the legislature of a city 
 charter, authorizing and requiring the 
 city to perform certain duties, has 
 been held sufficient to render the city 
 liable to a private action for neglect 
 in their performance, when a town 
 would not be so liable, are in New 
 York since 1850, and in Illinois. The 
 cases in the Supreme Court of the 
 United States, in which private ac- 
 tions have been sustained against a 
 city for neglect of a duty imposed 
 upon it by law, are of two classes: 
 1st. Those which arose under the 
 peculiar terms of special charters, in 
 the District of Colum bia, as in Weight- 
 man V. Washington and Barnes v. 
 District of Columbia, or in a territory 
 of the United States, as in Nebraska 
 City V. Campbell. 2d. Those which, 
 as in Mayor, etc. of New York v. 
 Sheffield, and Chicago City v. Rob- 
 bins, arose in New York or in Illinois, 
 and in which the general liability of 
 the city was not denied or even dis- 
 cussed, and apparently could not have 
 been, consistently with the rule by 
 which the Supreme Court of the 
 United States, upon questions of the 
 construction and effect of the consti- 
 
§ 46 CONFLICTING VIEWS REGARDING HIGHWAYS. 85 
 
 mon law no private action would lie for damages suffered 
 because of a failure to repair a highway or bridge, unless 
 the right to such action was given by statute. While 
 this question is quite distinct from that presented by the 
 facts before the court, the utterances of the court were so 
 pronounced, and the review of the authorities was so ex- 
 tensive, that the opinion has had much weight. The real 
 question involved seems to have been whether the city 
 was liable for negligence in maintaining a defectively 
 constructed school-building — a question still unsettled, 
 but which both principle and analogous cases would seem 
 to decide in the affirmative.^ 
 
 § 46. Earliest English authorities. — In his review of the 
 earliest authorities in England, Chief-Justice Gray argues 
 from the fact that there are in the books many cases of 
 
 tution and statutes of a State, fol- 
 lows the latest decisions of the highest 
 court of that State, even if like words 
 have been differently construed in 
 other States. Elmendorf v. Taylor, 
 10 Wheat. 152, 159 ; Christy v. Pridg- 
 eon, 4 Wall. 196 ; Richmond v. Smith, 
 15 Wall. 429; Tioga Railroad v. 
 Blossburg & Corning Railroad, 20 
 Wall. 137 ; State Railroad Tax Cases, 
 92 U. S. 575, 615. In the absence of 
 such binding decisions, we find it diffi- 
 cult to reconcile the view, that the 
 mere acceptance of a municipal char- 
 ter is to be considered as conferring 
 such a benefit upon the corporation 
 as will render it liable to private ac- 
 tion for neglect of the duties thereby 
 imposed upon it, with the doctrine 
 that the purpose of the creation of 
 municipal corporations by the State is 
 to exercise a part of its powers of 
 government — a doctrine universally 
 recognized, and which has nowhere 
 been more strongly asserted than by 
 the Supreme Court of the United 
 States, in the opinions delivered by 
 
 Mr. Justice Hunt, in United States v. 
 Railroad Co., 17 Wall. 322, 329, and 
 by Mr. Justice Clifford in Laramie v. 
 Albany, 92 U. S. 307, 308. 
 
 " But, however it may be where the 
 duty in question is imposed by the 
 charter itself, the examination of the 
 authorities confirms us in the conclu- 
 sion that a duty which is imposed 
 upon an incorporated city, not by the 
 terms of its charter, nor for the profit 
 of the corporation.pecuniarily or other- 
 wise, but upon the city as the repre- 
 sentative and agent of the public, and 
 for the public benefit, and by a gen- 
 eral law applicable to all cities and 
 towns in the Commonwealth, and a 
 breach of which in the case of a town 
 would g^ve no right of private action, 
 is a duty owing to the public alone, 
 and a breach thereof by a city, as by 
 a town, is to be redressed by prosecu- 
 tion in behalf of the public, and will 
 not support an action by an individ- 
 ual, even if he sustains special damage 
 thereby." 
 
 ' In/ra, Chap. XVIL 
 
86 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 47 
 
 indictment for neglect to repair highways and none where 
 an action for damages for injuries was sustained, that no 
 action on the case could be maintained. This argument 
 cannot, however, be considered of much strength in view 
 of the different purposes of these two remedies,^ and the 
 meagreness of the reports of cases in these early times, 
 and especially in view of the contrary statement of the 
 law by Chief-Justice Vaughan.^ We have already ex- 
 amined the early decisions on this question ^ and find no 
 reason why we should not take the law of that period to 
 be as it was then laid down by an able judge, while many 
 reasons exist which confirm the correctness of his state- 
 ments. 
 
 § 47. Russell V. Men of Devon. — Coming, however, to 
 a later period, Chief-Justice Gray cites the case of Russell 
 V. Men of Devon* to sustain his conclusion in regard to 
 the common law of England. As this authority has 
 been largely responsible for the contradictory views upon 
 
 ■ Supra, § 16. statute; that the action was against the 
 ^ Supra, §§ 16, 17. public; that there was no corporation 
 ^ Supra, ^ I5-I9- fund out of which satisfaction could 
 ^2 Term Rep. 667; supra, § 16. be made, but the damages, if recov- 
 In Hill V. Boston, 122 Mass. 344, it ered, must be levied upon one or 
 is said : " In Russell v. Men of Devon, more of the inhabitants of the county; 
 2 T. R. 667, in which an action was and those who became inhabitants of 
 brought by an individual against the the county, after the injury sustained 
 inhabitants of a county for an injury and before judgment, would be liable 
 sustained in consequence of a county to contribute their proportion." And 
 bridge being out of repair, the court, Ashhurst, J., observed : " It has been 
 admitting that such an action could said that there is a principle of law 
 be maintained against an individual on which this action may be main- 
 bound to repair a bridge, and that tained, namely, that where an indi- 
 the inhabitants of a county might be vidual sustains an injury by the neg- 
 a corporation for some purposes, held lect or default of another, the law 
 that they were not a corporation or gives him a remedy. But there is an- 
 quasi corporation against whom such other general principle of law which 
 an action as this could be maintained, is more applicable to this case, that it 
 The reasons assigned were, that there is better that an individual should sus- 
 was no precedent for such an action ; tain an injury than that the public 
 that no such action had been given bv should suffer an inconvenience," 
 
§ 47 CONFLICTING VIEWS REGARDING HIGHWAYS. 87 
 
 this subject, it is of importance to ascertain the true 
 theory of the decision. It was an action by an individual 
 against the inhabitants of a county for damages received 
 from neglect to keep a bridge in repair. The court de- 
 cided that the action was not maintainable. Various 
 matters were discussed in the conduct and the decision of 
 the case, but the fatal objection to the action was that it 
 was not brought against any one capable of being sued ; 
 and it is clear from a consideration of the case itself that 
 it is not an authority which bears upon the question of 
 the liability of an incorporated municipality, but that it 
 simply re-established the rule recognized by Chief-Justice 
 Vaughan * that no action can be brought against the in- 
 habitants of a parish or county for failure to repair a 
 highway or a bridge.* 
 
 Later comments on this case have shown that its au- 
 thority extends only to this principle. 
 
 Thus the Court of Appeal has said : " It was held in 
 Russell V. The Men of Devon,^ that an action would not 
 lie against the inhabitants of a county for an injury 
 caused by the neglect of the inhabitants to repair a 
 county bridge, the case proceeding mainly on the ground 
 that the inhabitants of the county could not be regarded 
 as a corporation in such a sense as to be liable to be sued 
 for their acts and defaults." * And the Privy Council 
 
 ' Supra, §§ 16, 17. " 2 T. R. 667. 
 
 " " At common law the remedy for * Kent v. Worthington Local Board, 
 
 want of repair in highways and L. R. 10 Q. B. D. 121 (1882), also in 
 
 bridges was not by suit against the McKinnon v. Penson, 8 Exch. 319, 
 
 surveyor or justices, but by present- Alderson, B., says : " No doubt 
 
 mentor indictment against the county, where a person sustains an injury 
 
 or against some individuals thereof through the wrongful act, either of an 
 
 for and in the name of all the rest," individual or of a corporation, he 
 
 Beven on Negligence, p. 216, cit- may recover from them compensa- 
 
 ing: 2 Inst. 701; Popham, 192; 13 tion in damages. But the only way 
 
 Co. 37, s. 7; Cro. Car. 365; Com. Dig. in which the inhabitants of a county 
 
 title Chemin, B. 3 ; 2 Black Rep. 685 ; can be compelled to repair is by pre- 
 
 Andrews' Rep. loi, 285. • sentment or indictment "; and Pol- 
 lock, C. B., says : 
 
MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS, 
 
 48 
 
 referring to this case and others similar to it have 
 recently said : " In those cases the principal objection to 
 the maintenance of the action was that the inhabitants 
 of the county or parish, as the case might be, were not 
 a corporation capable of being sued as such." ' 
 
 § 48. Incorporated municipalities held liable for damages. 
 — In the case of Hartnall v. Ryde Commissioners, it was 
 specifically decided that an action to recover damages for 
 an injury suffered by reason of neglect to keep a highway 
 in safe condition for use can be maintained against a pub- 
 lic corporation having control thereof although no such 
 action is given by statute. 
 
 "It has been held that no such 
 action on the case to recover damages 
 for negligence would lie against the 
 inhabitants of a county for a special 
 injury sustained by a plaintiff by rea- 
 son of their neglect to repair a county 
 bridge. Russell v. The Men of Devon, 
 2 T. R. 667. We think it clear, on 
 the full consideration of that case, 
 that the only reason why the action 
 would not lie was because the in- 
 habitants of the county were not a 
 corporation and could not be sued — 
 a difficulty which was got rid of in the 
 case of the Statutes of Hue and Cry 
 by giving a specific remedy against 
 the hundred." 
 
 ' Borough of Bathurst v. Macpher- 
 son, L. R. 4 App. Cas. 256 (1879). 
 
 In Weightman v. The Corporation 
 of Washington, i Black (U. S.) 39 
 (1861), Mr. Justice Clifford said: 
 " Reference is often made to the case 
 of Russell v. The Men of Devon, 2 
 Term R. 667, as an authority to 
 show that no action will lie against a 
 municipal corporation in a case like 
 the present ; but it is a misapplication 
 of the doctrine there laid down. Suit 
 was brought in that case against the 
 inhabitants of a district, called a 
 county, where there was no act of in- 
 
 And in the case of Borough 
 
 corporation, and the court held that 
 the action would not lie, admitting, 
 however, at the same time that the 
 rule was otherwise in respect to cor- 
 porations." 
 
 In Denver v. Dunsmore, 7 Col. 
 328 (1884), Beck, C. J., says in 
 regard to the reasons assigned for 
 the decision of the court in Russell v. 
 Men of Devon : " We perceive noth- 
 ing in the grounds assigned for deny- 
 ing the right of action, or in the rea- 
 soning of the court, to warrant an 
 inference that such an action would 
 not lie at common law against a 
 municipal corporation as to which 
 the obstacles mentioned in that case 
 did not exist. The almost necessary 
 inference from the language of the 
 court would seem to be the other 
 way." See also Morey v. Newfane, 8 
 Barb. N. Y. 645; McConnell v. Dewey, 
 5 Neb. 385 (1877); Young v. Edge- 
 field Com., 2 Nott & McC. (S. C.) 
 537; supra, § 19. 
 
 ''4 B. & S. 361, 33 L- J- Q- B. 39 
 (i 863) . In this case no action for dam- 
 ages was allowed by the statute, but 
 liability was enforced upon common- 
 law principles for neglect in leaving 
 a stone at> the end of a foot-path 
 and for not lighting it at night. 
 
48 CONFLICTING VIEWS REGARDING HIGHWAYS. 89 
 
 of Bathurst v. Macpherson, the Privy Council affirming 
 an order of the Supreme Court of New South Wales 
 made by a divided court, held that the municipality was 
 liable to the private action there brought and based upon 
 a breach of the duty to keep the streets of the borough 
 safe for use.^ So in a Scotch case the question was fully 
 
 ' L. R. 4 App. Cas. 256 (1879). In 
 this case the plaintiff sued the bor- 
 ough of Bathurst to recover damages 
 for injuries suffered through the neg- 
 ligent care, construction, and man- 
 agement of certain streets in the bor- 
 ough, and allowing a certain drain 
 built by the borough in and 
 along said street to be and continue 
 in a dangercfus condition, whereby 
 he was injured while lawfully passing 
 along the street. In deciding the 
 case, Sir Barnes Peacock said : 
 
 " The question upon these facts is, 
 whether the municipality having con- 
 structed the barrel-drain was not 
 bound to keep it in a state of repair 
 which would prevent its causing a 
 dangerous hole to be formed in the 
 highway. Having, under the statute, 
 the care, construction, and manage- 
 ment of the roads and streets, the 
 construction of the barrel-drain by 
 the appellants was lawful ; and the 
 care and management of the roads 
 being vested in them, the drain was 
 in their control, and they had full 
 power to repair or otherwise deal 
 with it. Their Lordships are of opin- 
 ion that, under these circumstances, 
 the duty was cast upon them of keep- 
 ing the artificial work which they had 
 created in such a state as to prevent 
 its causing a danger to passengers on 
 the highway which, but for such arti- 
 ficial construction, would not have ex- 
 isted, or, at the least, of protecting 
 the public against the danger, when 
 it arose, either by filling up the hole 
 
 or fencing it. Supposing the top of 
 the barrel-drain across Hope Street 
 had fallen in, leaving a dangerous 
 hole in the middle of that street, it 
 would surely have been the duty of 
 the appellants to take steps to pre- 
 vent persons falling into the trench 
 which they had originally dug; and 
 there would seem to be no substan- 
 tial difference in the liability between 
 a hole which had been directly made 
 by them, and one which is the indi- 
 rect but natural consequence of the 
 artificial work they had created and 
 had not properly kept 
 
 " Their Lordships are therefore of 
 opinion that the appellants, by reason 
 of the construction of the drain, and 
 their neglect to repair it, whereby the 
 dangerous hole was formed,which was 
 left open and unfenced, caused a nui- 
 sance in the highway, for which they 
 were liable to an indictment. 
 
 " This being so, their Lordships are 
 of opinion that the corporation are 
 also liable to an action at the suit of 
 any person who sustained a direct and 
 particular damage from their breach 
 of duty. Henley v. Mayor and Bur- 
 gesses of Lyme Regis, 5 Bing. loi, 
 S. C. in error, 3 B. & A. ^^, and in 
 tlie House of Lords, 8 Bli. (N. S.) 690. 
 In that case the rule was clearly laid 
 down by Lord Tenterden. He said : 
 'We think the obligation to repair 
 the banks and seashores is one which 
 concerns the public, in conse,quence 
 of which an indictment might have 
 been maintained against the plaintiffs 
 
90 
 
 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. 
 
 48 
 
 discussed in 1855, and the conclusion was reached that 
 by the law of England and Scotland an action could be 
 brought against a city charged with the duty of repairing 
 its streets.* It is difficult if not impossible to reconcile 
 
 in error (z'. e., corporation, defend- 
 ants), for their general default ; from 
 whence it follows that an action on 
 the case will lie against them for a di- 
 rect and particular damage sustained 
 by an individual, as in the case of a 
 nuisance in a highway by a stranger 
 digging a trench, etc., or by the act 
 or default of a person bound to repair 
 ratione tenures. An indictment may 
 be sustained for the general injury to 
 the public, and an action on the case 
 for a special or particular injury to an 
 individual.' 
 
 " The general rule was also enun- 
 ciated by the Lord Chief Baron Pol- 
 lock in the case of McKinnon v. Pen- 
 son, 8 Ex. 327. He said: 'There is 
 no doubt of the truth of the general 
 rule that where an indictment can be 
 maintained against an individual or 
 corporation for something done to the 
 general damage of the public an ac- 
 tion on the case can be maintained 
 for a special damage thereby done to 
 an individual, as in the case of a nui- 
 sance in the highway by a stranger 
 digging a trench across it, or of the 
 default of a person bound to repair 
 ratione tenura.' 
 
 " In their Lordships' opinion there 
 is no principle upon which a distinc- 
 tion in this respect between nonfeas- 
 ance and misfeasance can be sup- 
 ported." .... And speaking of the 
 incorporated body sued, he says : 
 
 " It more nearly resembles the pub- 
 lic body held liable to an action in 
 Hartnall v. Ryde Commissioners, 4 
 B. & S. 361, a decision which has 
 been recognized as sound law in sev- 
 eral later cases. It was there held 
 
 that the statute creating the commis- 
 sioners having expressly imposed upon 
 them the obligation of repairing the 
 roads, they were liable not only to be 
 indicted for a breach of that duty, but 
 to be sued by anybody who can show 
 that by reason of such breach of duty 
 he had sustained particular and spe- 
 cial damage. In their Lordships' 
 opinion, no substantial distinction 
 can be taken, between that case and 
 the present, in which the duty for the 
 reasons above stated has been found 
 to exist, though not expressly imposed 
 by statute." 
 
 ' Dargie v. Magistrates and Town 
 Council of Forfar (1855), reported by 
 William Hay, in Decisions of the Su- 
 preme Courts of England and Scot- 
 land, at p. 208. Lord Curriehill says in 
 that case: "I concur with the Lord Or- 
 dinary in holding that the first and 
 third Pleas in Law for the defenders 
 are not sufficient to exclude the ac- 
 tion. 
 
 " The first defense is, that the pur- 
 suer has not made a relevant state- 
 ment of misfeasance or neglect of 
 duty 
 
 " But the more important question 
 is. Whether the corporation of a royal 
 burgh is under a legal obligation to 
 keep the public streets of the burgh 
 free from dangerous obstructions? 
 If this were a new question, it might 
 require much research and considera-i 
 tion ; but I think it was settled in the 
 case of Innes v. The Magistrates of 
 Edinburgh, Morison's Diet, of Deci- 
 sions, vol. xxxi., case 13189 (1798)1 
 that such an obligation is incumbent 
 upon the corporation. The report 
 
48 CONFLICTING VIEWS REGARDING HIGHWAYS. 
 
 91 
 
 these cases with the following statement made in 
 Hill V. Boston : " Although the English books contain 
 numerous cases of indictments or informations for 
 neglect to repair highways and bridges, no instance has 
 been referred to in the frequent discussion of the subject 
 in England and in this country in which an English court 
 
 states that the court were unanimous 
 in thinking- the action well-founded 
 against the niagistrates. One of 
 their most important duties (it was 
 observed) is to take care that the 
 streets of the city are kept in such a 
 state as to prevent the slightest dan- 
 ger to passengers. They are liable 
 for the smallest neglect of this duty. 
 
 " The party against whom the de- 
 cree for damages was pronounced in 
 that action was the Corporation of 
 the City of Edinburgh. Doubts which 
 were suggested as to this have been 
 obviated by an examination of the 
 process itself, from which it appears 
 that, although the individual who has 
 been in the Magistracy when the ac- 
 cident happened, as well as the Cor- 
 poration, were called as defenders, the 
 action was not insisted on against 
 these individuals, and the Corporation 
 itself was the only party against whom 
 the decree was pronounced. This ap- 
 pears from the terms of the decree 
 itself, and also from an express state- 
 ment to that effect in a second re- 
 claiming petition which was lodged 
 for the Magistrates, as representing 
 the Corporation, after the decree in 
 favor of the pursuer Innes was final, 
 by there having been two consecutive 
 judgments of the Inner House against 
 them in his favor. The object of that 
 petition was merely to endeavor to 
 establish a claim of reliet in favor of 
 the Corporation against any surplus 
 funds which might eventually be left 
 in the hands of the trustees for the Col- 
 
 lege ; and it is there distinctly stated 
 that the Corporation funds were pri- 
 marily liable, in virtue of the final de- 
 cree, to Innes. 
 
 " In the case of Threshie, nth De- 
 cember, 1845, it was again expressly 
 found that the Corporation are bound 
 to keep apd maintain in repair the 
 streets of a royal burgh out of the 
 common funds belonging thereto. 
 
 " Holding that the obligation to keep 
 the streets of the burgh free from dan- 
 gerous obstructions is incumbent on 
 the Corporation, I further think that 
 the plea that the funds of the Corpo- 
 ration are not answerable for the con- 
 sequences of a breach of that duty, or 
 of failure to perform it (being the 
 third plea maintained for the defend- 
 ers), is not well founded. That plea 
 is directly at variance with the judg- 
 ment in the case of Innes. Nor do I 
 think that the principle recognized in 
 that case is at variance with any sub- 
 sequent authority. The cases in which 
 it has been held that funds raised by 
 taxation for specific purposes — such 
 as the making and the repairing of 
 public roads — cannot be applied in 
 relieving the administrators of the 
 funds, or contractors with them, from 
 the consequences of their misconduct 
 or negligence, appear to me to depend 
 upon different principles ; and I do 
 not see that, in the decision of those 
 cases, the principle of the case of In- 
 nes was called in question. In the 
 case of royal burghs the Corporation 
 itself is the obligant, although, like all 
 
92 
 
 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. 
 
 49 
 
 has sustained a private action against a public or munic- 
 ipal corporation or quasi corporation for such neglect 
 except under a statute expressly or by necessary implica- 
 tion giving such a remedy." 
 
 It may be added that the courts of Canada in recent 
 cases uphold the view that incorporated municipalities 
 are liable for neglect to repair their highways.^ 
 
 § 49. Contradictory decisions regarding local boards. — In 
 England local boards of health have by statute suc- 
 ceeded to the duties formerly resting upon surveyors of 
 highways. These surveyors were charged with the duty 
 of repairing the highways, but as mere servants of the 
 parishes they were held not liable for damages occasioned 
 
 other Corporations, it must, conduct 
 its business through its office-bearers. 
 And if it contravene its obligations, 
 or failed in performing them, the Cor- 
 poration, like any other obligant, must 
 be liable to make good the conse- 
 quences out of its general funds. And 
 accordingly, it has been repeatedly de- 
 cided that the common good of a 
 royal burgh was hable in payment of 
 the damages incurred to a creditor in 
 consequence of his debtor having been 
 allowed to escape from prison, or hav- 
 ing been too much indulged while de- 
 tained there. And it is a mistake to 
 say that in cases of that class the ob- 
 ligation to make such indemnification 
 out of the common good was enforced 
 by statute. If the mere circumstance 
 of the obligation being statutory were 
 of any relevancy, it would operate the 
 other way ; because in cases regard- 
 ing road trustees and others, above 
 referred to, the trusts were created 
 by statute. But although an obliga- 
 tion to erect and maintain jails was 
 imposed by statute on the Corpora- 
 tion of every royal burgh, the statute 
 is silent as to the party who was to 
 
 indemnify those who might suffer 
 from a failure to perform that obli- 
 gation ; and the Corporation, on the 
 same principle on which it is liable 
 for a breach of the duties imposed on 
 it by statute, must be liable for a 
 breach of duties arising from its very 
 constitution." 
 
 ' In Harold v. Simcoe, 16 U. C. C. 
 P. 50 (1865), where the action was 
 against a county for negligence in not 
 keeping a bridge in repair, Wilson, J., 
 said : " We are of opinion for the rea- 
 sons hereafter given and upon the 
 authority of decided cases that there 
 is a clear common-law liability rest- 
 ing on the defendants both civilly and 
 criminally." See also Wellington v. 
 Wilson, 14 U. C. C. P. 304; Harold 
 V. Simcoe, 18 U. C. C.P. 14; Reg. v. 
 Yorkville, 22 U. C. C. P. 431 {1872); 
 Grassick v. Toronto, 39 U. C. Q. B. 
 306 (1876) ; Goldsmith v. London, n 
 O. R. 26 Q. B. D. ; Copeland v. 
 Blenheim, 9 O. R. 193; Harrison's 
 Municipal Manual, Sth ed., Joseph 
 (1889), p. 486 et seq., citing many 
 
49 CONFLICTING VIEWS REGARDING HIGHWAYS. 
 
 93 
 
 by neglect to repair — the argument being, that as the 
 principal was not liable, the servant should not be.^ The 
 statutes creating the local boards have been held to 
 transfer to the local boards only the duties and liabili- 
 ties of the surveyors, and it has resulted that these 
 boards are now held to be free from liability for mere 
 neglect to repair a highway,^ — a position which is anom- 
 
 ' Young V. Davis, 7 H. & N. 760, 2 
 H. & C. 197 (1863). 
 
 Upon appeal in the Exchequer 
 Chamber, Willes, J., referring to the 
 act authorizing the appointment of 
 surveyors of highways, says : " But 
 for the statute no action would have 
 been maintainable against the parish 
 or its servants for a mere omission to 
 repair. The remedy would have been 
 by indictment only against the parish 
 at large Now this act of Par- 
 liament appears not to have been 
 passed for the purpose of creating a 
 new liability either in the parish or 
 any other persons, but simply to pro- 
 vide machinery whereby the existing 
 duty of the parish to repair may be 
 conveniently fulfilled. To read the 
 act of Parliament as creating a duty 
 in the surveyors to a class more ex- 
 tensive than the parish which em- 
 ploys him, would introduce an anom- 
 aly not at all within the general 
 scope of the act, viz., a new liability 
 to action imposed upon a servant for 
 a mere neglect of his employer's duty, 
 in respect of which, moreover, such 
 employer is, in this particular mode 
 of proceeding, irresponsible." 
 
 In Bathurst v. Macpherson, L. R. 
 4 App. Cas. 256, supra, §48, it is 
 said with reference to the doctrine of 
 Young V. Davis : " Another class of 
 cases relied upon consists of those in 
 which (as in McKinnon v. Penson, 
 8 Exch. 319; Harris v. Baker, 4 M. & 
 S. 27, and Parsons v. Vestry of St. 
 
 Matthew, Bethnal Green, Law Rep. 
 3 C. P. 56), it was held that such an 
 action could not be brought against a 
 surveyor of highways appointed under 
 the 43 Geo. 3, c. 59, or a vestry ap- 
 pointed under the Metropolis Local 
 Management Act, 18 & 19 Vict. c. 
 120. But the ruling principle of these 
 last decisions seems to be that it was 
 not the intention of the legislature to 
 create by the particular statute a new 
 liability, but merely to transfer exist- 
 ing powers ; and, consequently, that 
 if an action would not lie against the 
 county or parish, or other superior 
 body, it would not lie against the sur- 
 veyor, functionary, or other creature 
 of that statute. Without going at 
 length through the numerous cases 
 that have been cited on either side, 
 their Lordships think it sufficient to 
 say that this municipality has original 
 and not merely transferred powers, 
 and therefore does not fall within the 
 class of cases referred to." 
 
 » Steel v. Dartford Local Board, 60 
 L. J. Rep. Q. B. D. 256 (1890). In 
 Gibraltar Sanitary Commissioners v. 
 Orfila, L. R. 15 App. Cas. 408, 63 
 L. T. 58 (1890), an overhanging road 
 fell by reason of the giving way of a 
 retaining wall which was under the 
 control of the commissioners. No 
 knowledge of the defective condition 
 of the wall was attributable to the 
 commissioners, and no negligence was 
 shown. 
 
94 MUNICIPAL DUTIES— GOVERNMENTAL AFFAIRS. § 49 
 
 alous/ and one which previous decisions seem to have 
 forced upon the courts. 
 
 If, however, there is any act of misfeasance the board 
 will be liable, as, for instance, where a heap of stones 
 was left in the highway by a servant of the board for 
 several days and was left unlighted at night, and a trav- 
 eler drove upon them and was killed.*' And in a case 
 where the vestry of a parish were constituted the sur- 
 veyors of highways, and were also given authority to 
 cause the streets of the parish to be watered, the Court 
 of Appeal held that in its latter capacity the vestry was 
 liable to one who while walking along the street stepped 
 upon the iron covering of a box containing the water- 
 meter, which was sunk in the footway of a street, and 
 by reason of its being worn and slippery fell and was 
 
 ' Speaking of the special acts which 
 have put the local boards in the place 
 of the surveyors of highways, Beven 
 says : " The conclusion may be thus 
 stated : By common law no action 
 could be maintained for an injury 
 arising from the non-repair of a high- 
 way by the parish, and the legislature 
 has not interfered by any general 
 enactment to give a remedy by action 
 to persons sustaining such an injury. 
 It is therefore incumbent on a plain- 
 tiff, who seeks to establish that such 
 a right is exceptionally given to per- 
 sons sustaining an injury in a partic- 
 ular district, to show distinctly that 
 the legislature had such an intention 
 in passing the enactment to which 
 such an effect is attributed " (Gibson 
 V. Mayor of Preston, L. R. 5 Q. B. 
 218). And thus an exception is graft- 
 ed on the principle laid down by Eyre, 
 B., in Sutton v. Johnstone, i T. R. 
 784, and approved by the House of 
 Lords in Ferguson v. Earl of Kin- 
 noull, 9 CI. & F. 251, "that every 
 breach of a public duty working wrong 
 
 or loss to another is an injury, and 
 actionable," Beven on Negligence, p, 
 219. 
 
 '' Tucker v. Axbridge Highway 
 Board, 5 L. T. R. 26 (i888j, distin- 
 guishing Gibson v. Preston, L. R. 5 
 Q. B. 218, and following Forman v. 
 Canterbury, L. R. 6 Q. B. 214 ; Smith 
 V. Derby Local Board, L. R. 3 C. P. 
 D. 423 (1878) ; here a ditch dug for a 
 sewer was negligently refilled and the 
 subsequent giving way of the dirt 
 caused the injury ; Lamley v. East 
 Retford, 55 J. P. 133 (1891); here a 
 post had been placed in the center of 
 a footpath to prevent cattle from stray- 
 ing into it, with a lamp near to light 
 it at night. The injury was caused by 
 the post when there was no light ; 
 Cox V. Paddington Vestry, 64 L. T. 
 566 (1 891) ; here the vestry as sewer 
 authorities in opening a highway to lay 
 sewers uncovered an old water-pipe 
 which they failed to protect from giv- 
 ing way, and which subsequently 
 caused the injury. 
 
§ 49 CONFLICTING VIEWS REGARDING HIGHWAYS. 95 
 
 injured. In this case the water-meter was not the prop- 
 erty of the vestry, but, nevertheless, the court held that 
 as the injury proceeded from the presence of the iron cov- 
 ering in the street, which was maintained by the vestry, 
 it was liable,^ More recently still, the Queen's Bench 
 Division has held a local board liable where it had placed 
 an iron cover of a valve connected with a water-main m 
 the highway, and by the ordinary wearing away of 
 the highway the cover projected an inch above it, 
 and caused the plaintiff's horse to stumble and re- 
 ceive injury.^ In view, moreover, of the comprehen- 
 sive decisions of the House of Lords upon the ques- 
 tion of liability for a breach of the duty to exercise 
 
 ' Blackmore v. Vestry of Mile End, 
 Old Town, 9 Q. B. D. 451 (1882), ap- 
 proving White V. Hindley Local 
 Board, L. R. 10 Q. B. 219. 
 
 " Kent V. Worthington Local Board 
 of Health, 10 Q. B. D. 118 (1882). 
 In this case Stephen, J., says : "In 
 this instance the local board as water 
 authority fixed in the highway an iron 
 pipe with a valve cover at the top 
 proper in itself, but certain in the or- 
 .dinary course of things to become a 
 dangerous nuisance as the road wore 
 away unless proper precautions were 
 taken, which precautions the local 
 board were able to take. It was their 
 duty to take such precautions inde- 
 pendently of and apart from their du- 
 ties as surveyors of highways." The 
 case of Kent v. The Worthington Lo- 
 cal Board (suj>rd) is, however, criti- 
 cised in Moore v. The Lambeth Water 
 Works Co., L. R. 17 Q. B. D. 462, 55 
 L. J.(Q. B. D.) 304 (1886), where Lind- 
 ley, L. J., says : " In Borough of Bath- 
 urst v. Macpherson, L. R. 4 App. 
 Cas. 256, the defendants were held 
 liable for a drain which was out of re- 
 pair, and which it was their duty to 
 keep in repair and which led to the 
 
 accident in the highway. Of course, 
 if the drain was out of repair, and by 
 reason of that there was a hole into 
 which some one fell, there could be 
 no defense to the action. But here 
 we are assuming that there was noth- 
 ing the matter with the plug, except 
 the fact that it projected above the 
 level of the road. There are some 
 other cases which would enable the 
 plaintiff to maintain this action if this 
 plug had been unfit for its position, 
 the road being in the state in which it 
 ought to have been. For example, in 
 the case referred to by the Master of 
 the Rolls, Blackmore v. Vestry of Mile 
 End, Old Town, the same authority 
 had control over the road, and over 
 the flap which protected the water- 
 meter, the flap itself having become 
 worn away so as to become slippery. 
 There it was held that an action would 
 lie against the defendants upon the 
 ground that they were maintaining in 
 the highway that which of itself was 
 dangerous, the rest of the highway 
 being in the condition in which it 
 ought to have been. I do not feel 
 myself pressed in any way by that au- 
 thority. But in Kent v. Worthington 
 
96 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. 
 
 50 
 
 care/ it is difficult to resist the conclusion that when the 
 question of the liability of a local board for neglect in 
 repairing a highway under its control comes before that 
 court the decision will be, that as a corporate body charged 
 with the performance of a public duty the local board 
 assumes the common-law responsibility incidental to the 
 performance of the duty, not by virtue of any statute, 
 but because of its independent existence and power of 
 action. 
 
 § 50. Conclusion from English authorities. — From the 
 foregoing review of the English authorities it appears 
 that in many instances actions to recover damages for 
 injuries caused by negligence in respect to highways 
 have been successfully maintained against public corpora- 
 
 Local Board, L. R. 10 Q. B. D. 122, 
 there is certainly a difficulty, because 
 the valve-cover was in repair, but pro- 
 jected a little above the road. The dis- 
 tinction — and it appears to me, I con- 
 fess, to be a distinction which is well 
 worth considering — is this, that in the 
 case of Kent v. Worthington Local 
 Board the same authority had control 
 over the highway and over the valve- 
 cover ; and although the decision did 
 not proceed upon this ground, the im- 
 portance of it appears to me to arise 
 in this way : we all know that a parish 
 and a surveyor could not be sued at 
 law for an accident arising from mere 
 non-repair ; and that doctrine, so far 
 as the parish is concerned, rested upon 
 the ground that there was no one to 
 sue. The parish might be indicted, 
 but was not liable to an action. Gib- 
 son v. Mayor of. Preston, L. R. 5 Q. 
 B. 218, decided that that common-law 
 doctrine applied, even although the 
 road authority was incorporated, and 
 therefore was capable of being sued 
 in an action at law. It was held there, 
 that, upon the construction of the 
 
 Public Health Acts, the local board, al- 
 though it was capable of being sued, 
 was no more liable for accidents of 
 this kind than the parish or the survey- 
 or. It rriay be that the principle of that 
 case does not apply to the road au- 
 thority where they have a control, not 
 only over the road, but over the thing 
 which creates a nuisance ; in other 
 words, it may be that Gibson v. Mayor 
 of Preston is somewhat anomalous, 
 and it is not to be extended to cases 
 which are not exactly like it. If Kent 
 v. Worthington Local Board is not to 
 be distinguished from this case upon 
 that ground, then, in my opinion, it is 
 erroneous. But I am not prepared to 
 say that it cannot be so distinguished, 
 and I am not prepared, therefore, now 
 to overrule it." See also Crowley v. 
 Newmarket Local Board, 6 T. L, R. 
 321, affi'd C. A. 7 T. L. R. 29. 
 
 'Mersey Docks v. Gibbs, infra, 
 §151; Bathurst v. Macpherson, supra^ 
 § 48. See Gilbert v. Corporation of 
 Trinity House, L. R. 17 Q. B. D. 79S 
 (1886). 
 
§ 5° CONFLICTING VIEWS REGARDING HIGHWAYS. 97 
 
 tions, although not given by statute. And the rule to 
 be derived from the authorities seems to be that where 
 the control of a highway and the duty to repair it are 
 given to a corporation, and no longer actually or con- 
 structively rest upon the parish, an individual action for 
 special damages occasioned by failure to repair can be 
 maintained. The only authorities opposing this view 
 are those referring to the statutes creating the high- 
 way and local boards, and holding that these boards 
 represent the parishes. These authorities, moreover, it 
 is believed, are much modified by recent decisions. It 
 may therefore be concluded that the best English cases 
 favor the view that a private action can be maintained 
 for injuries suffered from a breach of this duty by a pub- 
 He corporation and still adhere to the statement of the 
 law made by Chief -Justice Vaughan.^ 
 
 ' Supra, % 16. 
 
CHAPTER VII. 
 
 LIABILITY FOR FAILING TO REPAIR HIGHWAYS — AMERICAN 
 AUTHORITIES. 
 
 § 51. Statement as to American authorities. 
 
 52. United States Supreme Court upholds right of action. 
 
 53. State courts holding neglect to repair actionable. 
 
 54. State courts holding Massachusetts doctrine. 
 
 55. Law of State followed by United States Courts. 
 
 56. Courts denying right of action are inconsistent. 
 
 57. Rule that action will lie supported by the weight of authority. 
 
 58. Rule of liability also supported by principle. 
 
 § 51. Statement as to American authorities. — The state- 
 ment made in Hill v. Boston, that "the only deci- 
 sions of the State courts in which the mere grant by the 
 legislature of a city charter authorizing and requiring the 
 city to perform certain duties, has been held sufficient 
 to render the city liable to a private action for neglect in 
 their performance, when a town would not be so liable, 
 are in New York since 1850 and Illinois,"^ at the time 
 it was made was quite an incomplete presentation of the 
 facts, as a more extended examination would un- 
 doubtedly have convinced the learned judge who wrote 
 the opinion. And the comments made upon the deci- 
 sions of the United States Supreme Court were equally 
 unsatisfactory, for in Barnes v. The District of Colum- 
 bia,** that court expressed its view of the general ques- 
 tion under discussion, and did not confine the effect of its 
 decision to the peculiar terms of a special charter. 
 Since the decision of Hill v. Boston there have been, 
 
 ' See supra, p. 84, note, « 91 U. S. 540 (1875). 
 
§ 52 LIABILITY FOR FAILING TO REPAIR HIGHWAYS. 99 
 
 both in the United States Supreme Court and in the 
 several State courts, many decisions which have carried 
 forward former rulings, and which have shown that in 
 this country the decided weight of authority sustains the 
 proposition that there is at common law a liability rest- 
 ing upon every chartered municipality for special dam- 
 ages occasioned by its neglect to repair a highway over 
 which it has control. 
 
 § 52. United States Supreme Court upholds right of 
 action. — So far as the United States Supreme Court has 
 had opportunity to express its views upon this question, 
 it has given unqualified support to the rule that neglect 
 to repair a highway on the part of a city will give rise to 
 liability for consequent damage. In the District of 
 Columbia it has been held that the liability exists, and 
 the court rests its decision upon the principle " that a 
 municipal corporation, as distinguished from a corpora- 
 tion organized for private gain, is liable for injuries to 
 individuals arising from negligence upon its part in the 
 construction of works which it was authorized to con- 
 struct and maintain." ^ 
 
 ' District of Columbia v. Wood- for fifteen thousand dollars was re- 
 bury, 136. U. S. 450 (1889). In this turned against the District, and a 
 case Mr. Justice Harlan says : judgment in conformity therewith 
 " Early in the evening of December 6, was entered. That judgment having 
 1 88 1, the defendant in error, while been affirmed by the general term, the 
 passing on the sidewalk near the case has been brought here for re- 
 north entrance of the Riggs House examination. 
 
 on G Street, in the city of Washing- " The question to be first con- 
 ton, fell into a hole, whereby he sus- sidered is, whether the District of 
 tained personal injuries of a serious Columbia is, under any circum- 
 character. Claiming that the side- stances, liable in damages for personal 
 walk was not in a safe condition for injuries resulting from the unsafe 
 use by the public, and that the Dis- condition of the avenues, streets, and 
 trict authorities had been grossly sidewalks in the city of Washington, 
 negligent in not keeping it in proper The charge of the court below pro- 
 repair, he brought this action to re- ceeded upon the ground that such 
 cover damages for ■ such injuries, liability existed. The District con- 
 The plea was, not guilty. A verdict tends here, as it did at the trial, for 
 
lOO MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 53 
 
 The fact that the law of each State, as set forth in the 
 State Court decisions, must be upheld in the Supreme 
 Court prevents the overruling of any State decisions 
 upon statutes, but it has not deterred the court from 
 expressing its opinion that the weight of authority sup- 
 ports the doctrine of implied liability and of recording 
 its dissent from the contrary view held by the New Eng- 
 land courts.^ The rule of liability has also been enforced 
 in localities under the control of the United States 
 Courts,^ and in one instance by an opinion which has 
 had much influence throughout the country.^ 
 
 § 53. State courts holding neglect to repair actionable. — 
 The courts of New York and Illinois, the two States 
 mentioned by Chief-Justice Gray as the only ones up- 
 holding the doctrine of implied liability of chartered 
 municipalities for neglect of duty with respect to high- 
 ways, have consistently adhered to the views expressed 
 by them many years ago. The intimation that the courts 
 of New York were opposed to this view before 1850 is 
 not justified by the early cases, for the question did not 
 arise prior to this time, and the case in which Chancellor 
 
 the opposite view. And it insists that applied in District of Columbia v. 
 
 the question is not concluded by the McElligott, 117 U. S. 621. If the 
 
 decision in Barnes v. District of Co- rule announced in the Barnes case is 
 
 lumbia, 91 U. S. 540 not satisfactory to Congress, it can be 
 
 " Without further discussion, we abrogated by statute." .... 
 
 adjudge, upon the authority of Barnes ' Detroit v. Osborne, 135 U. S. 492 
 
 V. District of Columbia, that the Dis- (1889); infra, § 55; Cleveland v. King, 
 
 trict is liable for such negligence upon 132 U. S. 295 (1889); see also 
 
 the part of its officers as is charged in Evanston v. Gunn, 99 U. S. 660 
 
 the plaintiff's declaration. That case (1878); Delger v. St. Paul (Minn.), 14 
 
 was determined in 1875 and has never Fed. Rep. 567 (1882); Richmond v. 
 
 been questioned by any subsequent Smith, 1 5 Wall. 429 ; Providence v. 
 
 decision in this court. On the con- Clapp, 17 How. 161 (1854). 
 
 trary, its authority was recognized in "^ Nebraska City v. Campbell, 2 
 
 Metropolitan Railroad v. District of Black 590 (1862). 
 
 Columbia, and in Brown v. District ' Weightman v. Washington, i 
 
 of Columbia, 127 U. S. 579, 586, and Black 39 (i86i). 
 the principles announced in it were 
 
§ 53 LIABILITY FOR FAILING TO REPAIR HIGHWAYS. lOI 
 
 Kent held that an overseer of a highway was not liable 
 for neglect to repair^ does not controvert the doctrine of 
 liability in the case of a chartered municipality, but rather 
 seems to admit its existence in such a case ; and there 
 appears never to have been any doubt of the liability of 
 these municipalities in the highest courts of the State.^ 
 Towns in New York were not originally charged with 
 the duty of repairing highways, and were not liable for 
 damages occasioned by defective ways until made so by 
 statute.^ But cities from the first have been held to a 
 strict observance of the duty to exercise care.* 
 
 In Illinois the doctrine of implied liability was adopted 
 at an early date, and the reasons for the rule were stated 
 with such force and clearness that the decisions in this 
 State have had much influence in establishing the true 
 
 ' Bartlett v. Crozier, 17 Johns. 438. 
 The question whether public officers 
 are liable for negligence in the dis- 
 charge of their duties is quite differ- 
 ent from the question of municipal 
 liability. See Robinson v. Chamber- 
 lain, 34 N. Y. 389 ; Bassett v. Fish, 75 
 N.Y. 303 (1878); Throop on Public 
 Officers (1892), §§712, 713, 736, 737 ; 
 Sherman & Redfield on Neg., § 302 
 et seq. 
 
 " Weet V. Brockport (1856), report- 
 ed as a note to Conrad v. Itliaca, 16 
 N.Y. 158 (1857). See in the same 
 note reference to the decision of 
 Hickok V. Plattsburgh (1856), revers- 
 ing the same case reported below, 1 5 
 Barb. 427. In Ehrgott v. New York, 
 96 N. Y. 264 (1884), Earl, J., says: 
 " It is settled by a long line of de- 
 cisions in this State that municipal 
 corporations proper, having powers 
 ordinarily conferred upon them re- 
 specting streets within their limits, 
 owe to the public the duty to keep 
 them in a safe condition for use in 
 the usual mode by travelers, and are 
 
 liable in a civil action for special in- 
 jury resulting from neglect to perform 
 this duty While this rule of lia- 
 bility has been somewhat criticised, 
 we believe that it has the sanction of 
 a wise public policy, the support of 
 good reasons, and that its operation 
 is generally just and beneficent." See 
 also Cohen v. New York, 113 N. Y. 
 532 (1889); Pettengill v. Yonkers, 116 
 N. Y. 558 (1889); BIy V. Whitehall, 
 120 N. Y. 506 (1890); Bishop V. Go- 
 shen, 120 N. Y. 337 ; Bieling V. Brook- 
 lyn, 120 N. Y. 98 ; Harrington v. Buf- 
 falo, 121 N.Y. 147 (1890); Gillrie v. 
 Lockport, 122 N. Y. 403 (1890); Mc- 
 Nally V. Cohoes, 127 N. Y. 350 (1891). 
 Many other authorities will be found 
 under special headings. 
 
 ^ See infra, %% 63, 64. 
 
 * New York v. Furze, 3 Hill 612 
 (1842), action for damages because 
 of failure to repair a sewer. See also 
 Rochester White L. Co. v. Rochester, 
 3 N. Y. 463 (1850); Lloyd v. New 
 York, I Seld. 369 (1851); Hutson v. 
 New York, 9 N. Y. 163 (i8S3)- 
 
I02 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 53 
 
 rule,* An examination of the decisions of other States 
 will show also that the same rule of implied liability for 
 negligence in the care of highways was recognized by 
 able opinions before it was adopted either in New York 
 or Illinois, and the existence of this common-law liability 
 is now recognized in Alabama,* Colorado,^ Dakota,* Dela- 
 ware,^ District of Columbia,^ Florida, where the rule of 
 liability was established in 1850,^ Georgia,^ Indiana,* 
 
 ' Browning v. Springfield, 17 111. 
 143 (1855); Bloomington v. Bay, 42 
 111. 503 ; Chicago v. Fowler, 60 111. 
 322. See also CJiicago v. Keefe, 1 14 
 111. 222 (1885). In this case Ch. J. 
 Scholfield says : " We hold on princi- 
 ples of common law that an action for 
 damages resulting from negligence 
 will lie against a municipal corpora- 
 tion if the duty to make repairs is 
 fully declared and adequate means 
 are put within the power of the cor- 
 poration to perform the duty." 
 
 ^ Smoot V. Wetumpka, 24 Ala. 112 
 (1854), where the question was con- 
 sidered with ability and force ; Camp- 
 bell V. Montgomery, 53 Ala. 527 
 (1875); Albrittin v. Huntsville, 60 Ala. 
 486, 31 Am. Rep. 46 (1877); Selma v. 
 Perkins, 68 Ala. 145 (1880); Mont- 
 gomery V. Wright, 72 Ala. 41 1 (1882). 
 
 ^ Daniels v. Denver, 2 Col. 669 
 (1875); Denver v. Dunsmore, 7 Col. 
 328 (1884), in which case Beck, C. J., 
 says : " The general current of author- 
 ity supports the view, that when mu- 
 nicipal corporations are invested with 
 exclusive authority and control over 
 the streets and bridges within their 
 corporate limits, with ample power of 
 raising money for their construction, 
 improvement, and repair, a duty arises 
 to the public from the nature of the 
 powers granted, to keep the avenues 
 of travel within such jurisdiction in a 
 reasonably safe condition for the or- 
 
 dinary mode of use to which they are 
 subjected, and a corresponding liabil- 
 ity rests upon the corporation to re- 
 spond in damages to those injured by 
 a neglect to perform the duty. That 
 the same rule obtains in such case, 
 whether the duty is specifically im- 
 posed by the act of incorporation or 
 not. This duty is municipal or minis- 
 terial and not governmental." See 
 also Denver v. Dean, 10 Col. 375; 
 Denver v. Williams, 12 Col. 475 
 (1889). 
 
 '' Larson v. Grand Forks, 3 Dak. 
 307 (1884). 
 
 ' Magarity v. Wilmington, 5 Hous. 
 (Del.) 530 (1877); Anderson v. Wil- 
 mington, 19 Atl. Rep. 509 (1889). 
 
 ' Larmon v. Dist. of Col., 5 Cent. 
 Rep. 447 (1887). Supra, § 52. 
 
 ' Tallahassee v. Fortune, 3 Fla. 19, 
 52 Am. Dec. 358. See also Jackson- 
 ville v. Drew, 19 Fla. 106 (1882). 
 
 * Parker v. Macon, 39 Ga. 725 
 (1869); Atlanta v. Wilson, 59 Ga. 544 
 (1877); Brunswick v. Braxton, 70 Ga. 
 193 (1883). 
 
 ' Grove v. Fort Wayne, 45 Ind. 429, 
 28 Am. Rep. 657 (1874); Kistner v. 
 Indianapolis, 100 Ind. 210 (1884); 
 Knightstown v. Musgrove, 116 Ind. 
 121, 9 Am. St. Rep. 827 ; Goshen v. 
 Myers, 119 Ind. 196 (1889); Goshen 
 v. England, 5 L. R. A. 253 ; Ander- 
 son V. East, 117 Ind. 126, 2 L. R. A. 
 325- 
 
§ 53 LIABILITY FOR FAILING TO REPAIR HIGHWAYS. IO3 
 
 Iowa,* Kansas," Kentucky,^ Louisiana,* Maryland,^ Min- 
 nesota," Mississippi,'' Missouri,^ Montana," Nebras- 
 
 ' Beazan v. Mason City, 58 la. 233 
 (1882); Barnes v. Newton, 46 la. 567 ; 
 Keokuk v. Independent District, etc., 
 53 la. 352 (1880); Protestant Episco- 
 pal Church V. Anamosa, 2 L. R. A. 
 606. 
 
 • Topeka r. Tuttle, 5 Kas. 311 
 (1870); Atchison v. King, 9 Kas. 550 
 (1872); Wyandotte v. White, 13 Kas. 
 191 (1874); Smith V. Leavenworth, 15 
 Kas. 81 (1875); Jansen v. Atchison, 
 16 Kas. 358 (1876), where the author- 
 ities to this date are fully discussed ; 
 Langan v. Atchison, 35 Kas. 318 
 (1886); Shawnee County y. Topeka, 
 
 39 Kas. 197 (1888); Kansas City v. 
 Birmingham, 25 Pac.Rep. 569(1890). 
 
 • Patch V. Covington, 17 B. Mon. 
 722 (1856); Greenwood y. Louisville, 
 13 Ky. 226 (1877). 
 
 • O'Neil V. New Orleans, 30 La. 
 Ann. 220, 31 Am. Rep. 221 (1878); 
 Cline V. Crescent City Railroad Co. 
 and City of New Orleans, 41 La. Ann. 
 1031, 6 So. Rep. 851. 
 
 ' Baltimore v. Marriott, 9 Md. 160 
 (1856), where the early cases will also 
 be found to have been fully and care- 
 fully examined ; Kennedy v. Cumber- 
 land, 65 Md. 514, 7 Cent. Rep. 409 
 (1886). . 
 
 ' Shartle v. Minneapolis, 17 Minn. 
 308 (1871); Lindholm v. St. Paul, 19 
 Minn. 245 ; Moore v. Minneapolis, 19 
 Minn. 300 ; O'Gorman v. Morris, 26 
 Minn. 267 ; Bohen v. Waseca, 32 
 Minn. 176 (1884); Kellogg v. Village 
 of Janesville, 34 Minn. 132 (1885); 
 Young V. Village of Waterville, 39 
 Minn. 196 (1888); Welter v. St. Paul, 
 
 40 Minn. 460. 
 
 ' Whitfield v. Meridian, 66 Miss. 
 570, 4 L. R. A.;824 (1 889); Bell V. West 
 
 Point, 51 Miss. 262 (1875); Semple v. 
 Vicksburgh, 62 Miss. 63 (1884). 
 
 * Blake v. St. Louis, 40 Mo. 569 
 (1867); Smith V. St. Joseph, 45 Mo. 
 449 ; Bowie v. Kansas City, 5 1 Mo. 
 454; Bassett v. St. Joseph, 53 Mo. 
 290 (1873); Beandeau v. Cape Girar- 
 deau, 71 Mo. 480 (1880); Russell V. 
 Columbia, 74 Mo. 480 (i88i); Halpin 
 v. Kansas City, 76 Mo. 335 (1882); 
 Kiley v. Kansas City, 87 Mo. 103 
 (1885). In this case. Black, J., says : 
 " It is the duty of the defendant to 
 keep its streets in a reasonably safe 
 condition for persons traveling there- 
 on. The authorities are quite uniform 
 in the Middle and Western States 
 that for a neglect in this respect the 
 city is liable to the injured party with- 
 out any express statute creating such 
 liability. It is true the duty in this 
 respect, so far as travelers are con- 
 cerned, is one of a public character, 
 and generally municipal corporations 
 are not answerable in actions of tort 
 for the non-execution of powers ot 
 that character. But the liability for a 
 failure to keep the streets in a reason- 
 ably safe condition, it is generally 
 said, arises by implication from the 
 nature of the subject and the vast 
 powers conferred upon such corpora- 
 tions, including the exclusive control 
 of the streets." See also Roe v. Kan- 
 sas City, 100 Mo. 190 ; Maus v. 
 Springiield, loi Mo. 613, 14 S. W. 
 Rep. 630, 20 Am. St. Rep. 634 (1891); 
 Haniford v. Kansas City, 103 Mo. 172 
 
 (1891). 
 
 ' Sullivan v. Helena, 25 Pac. Rep. 
 94 (1890), where the question is de- 
 cided upon the weight of authority ; 
 McCune V. Town of Missoula, 25 
 Pac. Rep. 442 (1890). 
 
I04 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. 
 
 53 
 
 ka,* Nevada,^ North Carolina,^ Ohio,* Oregon,^ Penn- 
 sylvania," Tennessee,'' Texas,^ Utah,^ Virginia,^" Washing- 
 ton," West Virginia.^'' 
 
 ' Nebraska City v. Campbell, 2 
 Black (U. S.) 590 (1862). 
 
 In McConnell v. Dewey, $ Neb. 
 385 (1877), the rule of Hill v. Boston 
 was applied to the officers in charge 
 of the highways, and it was held that 
 they were not liable for negligence in 
 the performance of their duties re- 
 specting the highways. But in later 
 cases the liability of cities has been 
 fully recognized. See Lincoln v. 
 Walker, 18 Neb. 244 (1885); Ponca v. 
 Crawford, 18 Neb. 551 (1886), 23 Neb. 
 662, 8 Am. St. Rep. 144 (1888); 
 Wahoo V. Reeder, 27 Neb. 770 (1889); 
 Valparaiso v. Donovan, 10 L. R. A. 
 736 (1889); Lincoln v. Smith, 29 Neb. 
 228, 10 L. R. A. 735 (1890). 
 
 ' McDonough v. Virginia City, 6 
 Nev. 90 (1870). 
 
 ' Meares v. Wilmington, 9 Ired. 73 
 (1848); Bunch V. Edenton, 90 N. C. 
 431 (1884). 
 
 * Dayton v. Pease, 4 Ohio St. 89 
 (1854); Toledo V. Cone, 41 Ohio St. 
 149 (1884); Shelby v. Clagett, 46 Ohio 
 St. 549(1889); Cleveland V. King, 132 
 U. S. 295 (1889). 
 
 ° Sheridan v. Salem, 14 Or. 328 
 (1886). The court in this case ex- 
 presses the opinion that the rule of 
 Hill V. Boston is the correct one, but 
 decides against it on authority; but 
 see Farquar v. City of Roseburg, 18 
 Or. 27, 17 Am. St. 732, note. 
 
 ' The courts of Pennsylvania adopt- 
 ed the rule of liability even in the 
 case of a township as early as 1843 
 (Dean v. New Milford Township, 5 
 W. & S. 545), and the liability of a 
 city for this negligence seems never 
 to have been seriously questioned. 
 See Erie City v. Schwingler, 22 Pa. 
 
 384 (1853); Rapho et al. v. Moore, 68 
 Pa. 404 (187 1); Hey v. Philadelphia, 
 81 Pa. 44, 22 Am. Rep. 733; Rigony 
 v. Schuylkill, 103 Pa. 382 (1883); Boyd 
 v. Insurance Patrol, 113 Pa. 259 
 (1885); Etheridge v. Philadelphia, 26 
 Fed. Rep. 43 ; Brookyille v. Arthurs, 
 130 Pa. 501 (1889). 
 
 ' Memphis v. Lasser, 9 Humph. 
 757 (1849); Nashville v. Brown, 9 
 Heisk. I (1871); Niblett v. Nashville, 
 12 Heisk. 684 (1874); Knoxville v. 
 Bell, 12 Lea 157 (1883). 
 
 * Galveston v. Posnainsky, 62 Tex, 
 118 (1884). In this case the author- 
 ities were elaborately reviewed and the 
 case of Navasota v. Pearce, 46 Tex. 
 525, was materially qualified. See 
 also Fort Worth v. Crawford, 64 Tex. 
 202 (1885); Austin V. Ritz, 72 Tex. 
 391 (1888). 
 
 ' Levy V. Salt Lake City, 3 Utah 63 
 (1881). 
 
 '» Sawyer v. Corse, 17 Gratt. 230 
 (1867); Noble v. Richmond, 31 Gratt. 
 271, 31 Am. Rep. 726; Orme v. Rich- 
 mond, 79 Va. 86 (1884); Moore v. 
 Richmond, 85 Va. 538 (1888); Mc- 
 CouU V. Manchester, 85 Va. 579, 2 
 L. R. A. 691 (1888). 
 
 " Hutchinson v. Olympia, 2 Wash. 
 T. 314, s Pac. Rep. 606 (1884); Mor- 
 gan V. Morley, i Wash. 464 (1890). 
 
 " Wilson V. Wheeling, 19 W. Va. 
 323 (1882); Curry v. Town of Man- 
 nington, 23 W.Va. 14 (1883); Moore 
 V. Huntington, 31 W.Va. 842 (1888); 
 Phillips V. County Court, 31 W. Va. 
 477 (1888). The liability is now stat- 
 utory, but the doctrine of implied lia- 
 bility is fully recognized. See last 
 citations. Biggs v. Huntington, 32 W. 
 Va. 55 (1889); see Code 1887, c. 43- 
 
§ 54 LIABILITY FOR FAILING TO REPAIR HIGHWAYS. IO5 
 
 § 54. State courts holding Massachusetts doctrine. — The 
 State courts that have followed the lead of the Massa- 
 chusetts court, in the early case of Mower v. Leicester/ 
 and have adopted the rule of non-liability, even in the 
 case of chartered cities, are : Arkansas,^ California,^ Con- 
 necticut,* Maine,^ Massachusetts,® Michigan,'' New Hamp- 
 
 ' Supra, § 19. 
 
 "^ Arkadelphia v. Windham, 49 Ark. 
 139, 4 Am. St. Rep. 32 (1886); Fort 
 Smith V. York, 52 Ark. 84 (1889). In 
 this case the court contends that it 
 cannot even yet be held that the 
 weight of authority is against the 
 Massachusetts rule. 
 
 " Winbigler v. Los Angeles, 45 Cal, 
 36 (1872), where the court said : " In- 
 corporated cities in this State are mere 
 governmental instruments, formed un 
 der the State laws for the purpose of 
 internal administration. They are 
 not distinguishable in principle from 
 counties created by law for the same 
 purpose." Tranter V. Sacramento, 61 
 Cal. 271 (1882); Chope v. Eureka, 78 
 Cal. 588,4 L. R. A.32S (1889). This 
 doctrine is not held without strong 
 opposition, however (see Arnold v. 
 San Jos6, 81 Cal. 618, where the rule 
 of non-liability was reluctantly en- 
 forced in a department of the State 
 where two of the three judges sitting 
 disapproved of the rule). See further, 
 as upholding the rule, Burnett v. Con- 
 tra Costa Co., (>^ Cal. 78 ; Sherbourne 
 V. Yuba Co., 21 Cal. 113 (1862); Huff- 
 man V. San Joaquin County, 21 Cal. 
 426 (1863); Crowell V. Sonoma Coun- 
 ty, 25 Cal. 313; Hunsaker v. Bor- 
 deaux, 5 Cal. 288. 
 
 * Hewison v. New Haven, 37 Conn. 
 475 (1871); Beardsley v. Hartford, 50 
 Conn. 529 (1883), where it was said 
 by Loomis, J. : " It is well settled that 
 a town or city is not liable for injuries 
 
 from a defect in the highway except 
 as made so by statute. In some of 
 the States a distinction is made as to 
 the rule of liability between municipal 
 corporations, or corporations proper, 
 and y«aK corporations, such as towns 
 or counties, imposing a greater liabil- 
 ity on the former. But this distinc- 
 tion is not made by the courts of the 
 New England States, and it is holden 
 by them that a municipal corporation 
 is liable only by force of the statute." 
 That is clearly the law of this State. 
 But this court has held a city liable 
 to one who was injured by the falling 
 branch of a tree in a public park on 
 the ground that the ownership of the 
 park was vested in the city. Jones v. 
 New Haven, 34 Conn, i (1867), a 
 case ably presented to the court, and 
 one which is not easily reconcilable 
 with the other decisions of this court 
 upon this subject. 
 
 ' Moore v. Inhab. of Abbot, 32 Me. 
 46 (1850); Morgan v. City of Hallo- 
 well, 57 Me. 375 (1869); Frazer v. 
 Inhab. of Lewiston, 76 Me. 531 (1884); 
 Aldrich v. Inhab. of Gorham, ^^ Me. 
 287 (1885). 
 
 " For citation of cases, see supra, 
 % 45, and infra. Chap. XV. 
 
 ' Detroit v. Blackeby, 21 Mich. 84 
 (1870). See, however, dissenting opin- 
 ion of Judge Cooley, and see also 
 Dewey v. Detroit, 15 Mich. 307 (1867), 
 where the liability seems to have been 
 assumed. Detroit v. Putnam, 45 Mich. 
 263, 7 N. W. Rep. 815 (1881); Mc- 
 
I06 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § 54 
 
 shire/ New Jersey,^ Rhode Island,^ South Carolina,* Ver- 
 mont,^ Wisconsin.^ 
 
 An examination of the earliest decisions in these States 
 will show that the entire doctrine, so far as authority is 
 concerned, is built upon the case of Russell v. Men of 
 Devon, and that when it is said that the common law allows 
 no action against a municipal corporation for failure to 
 repair a highway, it means only that this is the deduction 
 
 Kellar v. Detroit, 57 Mich. 158, 23 
 N. W. Rep. 621 ; Mc Arthur v. Sagi^ 
 naw, 58 Mich. 357, 25 N. W. Rep. 
 279 (1885); Williams V. Grand Rapids, 
 59 Mich. 51 ; see also Niles v. Martin, 
 4 Mich. 557 ; Larkin v. Saginaw 
 County, II Mich. 88; Thomp.son v. 
 Quincey, 10 L. R. A. 734 (1890). 
 
 ' Famum v. Concord, 2 N. H. 392 
 <i82i); Eastman v. Meredith, 36 N. H. 
 284 (1858), where the question pre- 
 sented was not in regard to negli- 
 gence respecting the highways, but 
 there was a full review of the authori- 
 ties; Wright V. Holbrook, 52 N. H. 
 120; Rowe V. Portsmouth, 56 N. H. 
 291 (1876); Sides V. Portsmouth, 59 
 N. H. 24; Sweeny v. Newport, 65 
 N. H. 86. But see Wheeler v. Troy, 
 20 N. H. ^^ (1849), cited also in Gil- 
 man V. Laconia, 55 N. H. 137; Elliott 
 V. Lisbon, 57 N. H. 28 (1876), where 
 it was held that the statute in New 
 Hampshire was founded on the com- 
 mon-law liability. Supra, Chap. XV. 
 
 " Sussex County Freeholders v. 
 Strader, 18 N. J. L. 108 (1840); Liver- 
 more V. Freeholders of Camden Coun- 
 ty, 29 N. J. L. 245 1 Pray v. Jersey City, 
 32 N. J. L. 394, in which case Chief- 
 Justice Beasley says that if the ques- 
 tion was one of -primcB impressionis, 
 a broad field for investigation would 
 be thrown open, but that the early 
 cases in New Jersey settle the point 
 
 there ; Condict v. Jersey City, 46 
 N.J. L. 157, 19 Cent. L.J. 213 (1884); 
 Wild V. Paterson, 47 N. J. L. 406 
 (1886), it is here said that in no case 
 where there is a violation of a public 
 duty will an individual action be 
 allowed ; Callahan v. Morris, 30 N. J. 
 L. loi. 
 
 ' Taylor v. Peckham, City Treas- 
 urer, 8 R. I. 349 (1866); Providence V, 
 Clapp, 17 How. (U.S.) 161; Wixon 
 v. Newport, 13 R. L 454, 43 Am. Rep, 
 35 (1888). 
 
 * Young V. Edgefield County Com,, 
 2 N. & McC. 537 (1820); Coleman v, 
 Chester, 14 S. C. 291 ; Black v. City 
 of Columbia, 19 S. C. 412; Young v. 
 Charleston, 20 S. C. 116, 47 Am. Rep; 
 827 (1883). 
 
 ' Hyde v. Jamaica, 27 Vt. 443 (1855); 
 State v. Burlington, 36 Vt. 521 (1864); 
 Winn V. Rutland, 52 Vt. 481 ; Parker 
 V. Rutland, 56 Vt. 224 (1883); Welsh 
 V. Rutland, 56 Vt. 228, 48 Am. Rep. 
 762 ; Wilkins v. Rutland, 61 Vt. 336 
 (1889). 
 
 « Stilling v. Thorpe, 54 Wis. 528 
 (1882); Spearbracker v. Larrabee, 64 
 Wis. 573 (1885); Robinson v. Rohr, 
 2 L. R. A. 366 ; Hiner v. Fond du 
 Lac, 71 Wis. 74; Goeltz V. Ashland, 
 75 Wis, 642 (1890); Wiltse V. Tilden, 
 ^^ Wis. 152 (1890); Caincross v. Pe- 
 waukee, 10 L. R. A. 473, 4 N- W. 
 Rep. 13. 
 
;5 LIABILITY FOR FAILING TO REPAIR HIGHWAYS. ID/ 
 
 lich is made from the case of Russell v. Men of 
 
 ;von. 
 
 § 55. Law of State followed by United States courts.— 
 a recent case* the Supreme Court of the United States 
 
 The following extracts from the 
 I earliest cases in Massachusetts 
 r out this assertion : 
 n Riddle v. Props, of Locks, etc., 
 [ass. Rep. 169 (1810), Parsons, Ch. 
 says : " Let us now leave the an- 
 nt cases and resort to the maxims 
 ;he common law, which are found- 
 in good sense and substantial jus- 
 !. It is one of these maxims, that 
 lan specially injured by the breach 
 luty in another shall have his rem- 
 ' by action. If the breach of duty 
 by an individual, there is no ques- 
 1 ; and why should a corporation, 
 eiving its corporate powers and 
 iged by its corporate duties with 
 
 own consent, be an exception, 
 en it has, or must be supposed to 
 re, an equivalent for its consent ? 
 ' We distinguish between proper 
 jregate corporations and the in- 
 aitants of any district, who are by 
 tute invested with particular pow- 
 
 without their consent. They are 
 the books sometimes called quasi 
 ■porations. Of this description are 
 mties and hundreds, in England; 
 1 counties, towns, etc., in this State, 
 though quasi corporations are lia- 
 : to information or indictment for a 
 jlect of a public duty imposed on 
 :m by law, yet it is settled in the 
 ie of Russell et al. v. Inhabitants of 
 ; County of Devon, 2 T. R. 667, that 
 
 private action can be maintained 
 iinst them for a breach of their 
 ■porate duty, unless such action be 
 en by statute. And the sound rea- 
 1 is, that, having no corporate fund, 
 d no legal means of obtaining one, 
 ;h corporator is liable to satisfy 
 
 any judgment rendered against the 
 corporation. This burden the com- 
 mon law will not impose, but in cases 
 where the statute is an authority, to 
 which every man must be considered 
 as assenting. But in regular corpora- 
 tions which have, or are supposed to 
 have, a corporate fund, this reason 
 does not apply." 
 
 And in Mower v. Leicester, 9 Mass. 
 Rep. 247 (1812), it is said by the 
 court : " The plaintiff has brought his 
 action against the inhabitants of the 
 town of Leicester for the loss of his 
 horse, occasioned by the neglect of 
 that town to keep a certain bridge in 
 repair. The action is at common law, 
 without alleging any notice to the in- 
 habitants of the defect in the bridge, 
 previously to the incurring of the 
 damage by the plaintiff. But 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 pur- 
 poses 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 be given by 
 some statute. The only action fur- 
 nished by statute in this case is for 
 double damages after notice, etc. 
 This question is fully discussed in the 
 case of Russell et al. v. The Men of 
 Devon, cited at the bar, and the rea- 
 soning there is conclusive against the 
 action." 
 
 2 Detroit v. Osborne, 135 U. S. 492. 
 In this case the rule of law in Michi- 
 
I08 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 55 
 
 has decided that where the courts of a particular State 
 have adopted the rule that there is no common-law lia- 
 bility for neglect to repair highways, this rule will be 
 upheld in an action brought by a citizen of another 
 State for an injury received by reason of a defective 
 highway in such a State. This question is not one of 
 general commercial law, and the decisions of the State 
 courts are followed. 
 
 gan upon this subject was under dis- 
 cussion, and it appearing that it was 
 settled law there that the failure of a 
 municipal corporation to keep in re- 
 pair a sidewalk in a public street, was 
 not actionable (see ante, page 105), the 
 court held that the law of Michigan in 
 this respect was binding upon it, and 
 Mr. Justice Brewer says : " It must 
 be conceded that this adjudication as 
 to the liability of a city for injuries 
 caused by a defect in the sidewalks, 
 the repair of which it has both the 
 power and duty to provide for, is not 
 in harmony with the general rule in 
 this country, (2 Dillon on Mun. Corp., 
 3d ed., §§ 1017, 1018), nor in accord 
 with the views expressed by this court. 
 In Barnes v. The District of Colum- 
 bia, 91^ U. S. 540, this court, after re- 
 ferring to the case from 21 Michigan, 
 supra, and the doctrine stated therein, 
 observed that • the authorities estab- 
 lishing the contrary doctrine, that a 
 city is responsible for its mere negli- 
 gence, are so numerous and so well 
 considered that the law must be 
 deemed to be settled in accordance 
 with them,' citing in support a long 
 list of authorities. The authorities 
 which support a different view are col- 
 lected in Hill V. Boston, 122 Mass. 
 344. But even if it were a fact that 
 the universal voice of the other au- 
 thorities was against the doctrine an- 
 nounced by the Supreme Court of 
 
 Michigan, the fact remains that the 
 decision of the court, undisturbed by 
 legislative action, is the law of that 
 State. Whatever our views may be 
 as to the reasoning or conclusion 
 of that court, is immaterial. It does 
 not change the fact that its decision 
 is the law of the State of Michigan, 
 binding upon all its courts, and all its 
 citizens, and all others who may come 
 within the limits of the State. The 
 question presented by it is not one of 
 general commercial law ; it is purely 
 local in its significance and extent. It 
 involves simply a consideration of the 
 powers and liabilities granted and im- 
 posed by legislative action upon cities 
 within the State. While this court 
 has been strenuous to uphold the su- 
 premacy of Federal law, and the inter- 
 pretation placed upon it by the Federal 
 courts, it has been equally strenuous 
 to uphold the decisions by State courts 
 of questions ofpurely local law. There 
 should be, in all matters of a local 
 nature, but one law within the State, 
 and that law is not what this court 
 might determine, but what the Su- 
 preme Court of the State has deter- 
 mined. A citizen of another State 
 going into Michigan may be entitled 
 under the Federal Constitution to all 
 the privileges and immunities of citi- 
 zens of that State ; but under that 
 constitution he can claim no more, 
 He walks the streets and highways in 
 
56 LIABILITY FOR FAILING TO REPAIR HIGHWAYS. IO9 
 
 § 56. Courts denying right of action are inconsistent. — 
 As we shall see in a subsequent chapter, the Massachu- 
 setts Supreme Court, and most of the other courts which 
 agree with it upon the question of liability for failure to 
 repair highways, admit the right of action against the 
 municipality in case the public sewers of a city are out 
 of repair. The ground of distinction between the duty 
 of keeping the public sewers in a safe condition for use, 
 and the duty of keeping public streets, constructed by 
 the same municipality, in a similar condition is not satis- 
 factory, and the courts that follow this distinction and 
 impose liability for negligence in the case of sewers and 
 decline to recognize liability for negligence in the case 
 
 that State,,entitled to the same rights 
 and protection, but no other, than 
 those accorded by its laws to its own 
 citizens. 
 
 " This question is not a new one in 
 this court. In the case of Claiborne 
 County V. Brooks, ill U. S. 400, 410, 
 it was held that 'when the settled 
 decisions of the highest court of a 
 State have determined the extent and 
 character of the powers which its poli- 
 tical and municipal organizations may 
 possess, the decisions are authoritative 
 upon the courts of the United States '; 
 and in the opinion it was observed : 
 ' It is undoubtedly a question of local 
 policy with each State, what shall be 
 the extent and character of the pow- 
 ers which its various pohtical and 
 municipal organizations shall possess ; 
 and the settled decisions of its highest 
 courts on this subject will be regarded 
 as authoritative by the courts of the 
 United States ; for it is a question 
 that relates to the internal constitu- 
 tion of the body politic of the State.' 
 
 " What was there decided in refer- 
 ence to the powers is equally true as 
 to the liabilities of a municipal corpora- 
 
 tion. The city of Detroit, in the dis- 
 charge of its public duty in respect to 
 keeping the streets and sidewalks in 
 repair, is under no higher or different 
 obligation to a citizen of Ohio than to 
 one of the State of Michigan, and the 
 measure of its liability under the 
 statutes, as stated, is to be determined 
 by the judgment of the Supreme Court 
 of that State, and not by what our 
 opinions might be as to the proper 
 construction of those statutes." This 
 rule seems to have been disregarded 
 in Boston v. Crowley, 38 Fed. Rep. 
 202 (1889), where it appeared that the 
 city maintained too narrow a bridge, 
 and Colt, J., says : " The question be- 
 fore us is not one of the construction 
 of a State statute, where the Federal 
 courts are bound to follow the deci- 
 sion of the highest courts of the State, 
 but it is a question of general munic- 
 ipal or commercial law, and as such 
 this court should follow the decisions 
 of the Supreme Court of the United 
 States. Dates v. Bank, 100 U. S. 
 239 ; Wetson v. Tarpley, 18 How. 517 ; 
 Swift V. Tyson, 16 Pet. i." 
 
no MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §57 
 
 of Streets, are not consistent, as we shall attempt to show 
 in a subsequent chapter.^ 
 
 The States of New Jersey and California escape from 
 this inconsistency by repudiating the doctrine of liability 
 in both cases when the damage comes from mere neglect 
 in the care of the property. 
 
 § 57. Rule that action will lie, supported by the weight of 
 authority. — From the foregoing review of the authorities 
 it is seen that by the common law of England as it is in- 
 terpreted in the English courts, and by the same common 
 law as it is interpreted by the Supreme Court of the 
 United States and by a large proportion of the highest 
 courts of the States, an action on the case for negligence 
 can always be brought against a chartered municipality 
 for neglect to keep streets over which it has control in a 
 reasonably fit condition for use. The power of such a 
 corporation to obtain the means to perform the duty or- 
 dinarily exists, and in the foregoing discussion of the 
 subject the existence of this power has been assumed, for 
 the opponents of the doctrine of liability have not found- 
 ed their attack upon any want of ability to perform 
 the duty, but rather upon the character of the duty itself. 
 How far lack of funds to discharge the duty will 
 excuse its performance is considered in a subsequent 
 chapter.^ 
 
 § 58. Rule of liability also supported by principle. — In 
 New York and some other States ^ the doctrine of liability 
 has been put upon the ground of an implied obligation 
 between the State and the municipality, and the argu- 
 ment has been in brief, that as the State has granted 
 valuable franchises to the chartered municipalities upon 
 
 1 Infra, Chap. XVH. s gee Weet v. Brockport, 16 N. Y. 
 
 ' Infra, §75. 161, opinion of Selden, J., and supra, 
 
 §53- 
 
§ 5^ LIABILITY FOR FAILING TO REPAIR HIGHWAYS. Ill 
 
 the request of the inhabitants and required the perform- 
 ance of certain duties, the discharge of these duties is a 
 part of the consideration for the grant and should be in- 
 sisted upon in the courts.^ This theory was derived from 
 an English case, and while it has been criticised on the 
 ground that it is impossible to properly claim that a con- 
 tract exists between the State and any municipality,^ yet 
 it is founded in fairness and equity and finds support in 
 a sound public policy. There is, however, another and 
 more far reaching reason for insisting upon municipal 
 liability for this negligence. And this is because the 
 duty to keep the streets in repair is a municipal duty in 
 regard to property rights which rests upon the corpora- 
 tion as an independent member of society, and the rights 
 of others are infringed if their action for damages for 
 its breach is taken from them by the courts. 
 
 That it is just to hold every municipality for its neg- 
 ligent action or non-action in regard to its streets finds 
 proof in the decisions of many courts and the statutes of 
 the States where the courts have failed to preserve this 
 right to individuals. 
 
 The wrongful act exists, the damage is done, why 
 should not the corporate body whose neglect has occa- 
 sioned the injury make amends ? The principle of the 
 sovereignty of the States does not require exemption 
 from liability, for this extends only to duties requiring 
 the exercise of governmental powers, and the corporation 
 is universally held liable for its positive acts of wrong- 
 doing in relation to public work and quite generally for 
 its negligence respecting the care of its sewers, and there 
 is no valid reason for exempting it from liability for fail- 
 ure to perform any ministerial duty clearly imposed upon 
 
 ' Lynn v. Turner, Cowp. 86; Hen- '' Detroit v. Blackeby, 21 Mich. 84 
 ley V. Lyme Regis, 5 Bing. 91 ; (1870) ; Hill v. Boston, svjira, § 45. 
 infra, § 151 ; supra, § 18. 
 
1 1 2 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 58 
 
 it. The old argument that to admit liability would give 
 rise to a multiplicity of suits is of trifling value. If there 
 is a multiplicity of wrongs, there should be a multiplicity 
 of suits, and one and the same principle applies to allow- 
 ing an action for every wrong. 
 
 So the argument that it inconveniences the public to 
 allow the action is of little force. The public does not 
 feel the inconvenience, if it exists, and the individual 
 who has suffered the loss can ordinarily less afford to 
 bear it than the public. And without sufficient reason 
 no individual should be deprived of his right that others 
 must exercise reasonable care in all their actions so far 
 as they affect him. This fundamental right requires that 
 municipalities should respond in damages when they 
 negligently injure individuals. 
 
 Moreover, streets are ordinarily a considerable source 
 of profit to a municipality, and the power to control 
 the public rights in the streets is a power over property 
 exercised by the particular community for its own ad- 
 vancement, and it is eminently proper that these public 
 bodies, clothed with ample powers and means, and in the 
 possession of this lucrative property, should be answer- 
 able in damages for neglect in their duties respecting it. 
 
CHAPTER VIII. 
 
 EXTENT OF LIABILITY FOR NEGLECT TO REPAIR 
 HIGHWAYS. 
 
 § 59. Distinction between corporation and quasi corporation. 
 
 60. Liability should attach to every public body. 
 
 61. Distinct corporate body must have control. 
 
 62. English decisions sustain rule that every corporate body is liable. 
 
 63. Certain American authorities not applicable to this question. 
 
 64. Other authorities not sustaining broad distinctions. 
 
 65. States holding involuntary corporations liable. 
 
 66. States where duty does not rest upon a municipality. 
 
 67. States admitting liability of cities, but denying that of counties. 
 
 68. Conclusion from authorities. 
 
 69. Further treatment of subject. 
 
 § 59- Quasi corporations distinguished from municipal 
 corporations proper. — It is frequently said that the courts 
 uphold a clear distinction between municipal corpora- 
 tions proper and such public bodies as are termed quasi 
 corporations, in respect to the liability for failure to re- 
 pair highways. And this distinction is constantly refer- 
 red to in the cases. But the distinction as expressed is 
 not founded on any satisfactory principle, and in the 
 effort to follow it much confusion has resulted. It is 
 said that the weight of authority makes chartered munic- 
 ipalities liable for their negligence in regard to highways 
 under their control, but frees quasi corporations, such as 
 counties, towns, and townships, from any such liability.^ 
 
 ' Dillon thus states the law Munic. quasi corporations, such as coun- 
 
 Corp. § 997 : ties, townships, and New England 
 
 " In the United States there is no towns, to repair highways, streets, or 
 
 common-law obligation resting upon bridges within their limits, and they 
 8 
 
114 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. §59 
 
 The leading case cited to uphold this latter rule is Rus- 
 sell V. Men of Devon.^ 
 
 are not obliged to do so unless by 
 force of statute. Even when the 
 legislature enjoins upon corporations 
 of this character the duty to make and 
 repair roads, streets, and bridges, and 
 confers the power to levy taxes there- 
 for, the general tenor of the decisions 
 is to treat this as a public, and not a 
 corporate, duty, and to regard such 
 corporations, in this respect, 3& public 
 vr State agencies, and not liable to be 
 sued civilly for damages caused by 
 the neglect to perform this duty, un- 
 less the action be expressly given by 
 statute. 
 
 " § 998. The general doctrine of the 
 American courts, as we shall presently 
 see, in respect of municipal corpora- 
 tions proper, has been to hold them 
 civilly liable for injuries from defective 
 streets, although the ground for the 
 distinction — which gives an action if 
 the injury happens within the limits 
 of a municipality having control of the 
 streets therein, and denies it if it hap- 
 pens within the limits of a township 
 or county having equal control over 
 the highways, and adequate means of 
 discharging its public duties in respect 
 thereto— is not as satisfactory to the 
 mind as could be desired. With few 
 exceptions, the courts have agreed in 
 holding that their lower or more gen- 
 
 exists, but no action for neglect is ex- 
 pressly given ; still, the two classes of 
 cases establish, upon authority, the 
 distinction mentioned. 
 
 " The difficulties in the way of 
 maintaining this distinction have in- 
 duced some courts to reject it. Thus, 
 in Indiana the liability of a municipal 
 corporation proper for damages caused 
 to travelers by defective streets, with- 
 out a statute giving the action, is as- 
 serted. The liability, says the court, 
 ' grows out of the power conferred 
 upon the city over its streets and 
 bridges, and its duty to keep them in 
 reasonable repair, having the power 
 to raise means for that purpose.' In 
 this last case the same doctrine was 
 applied to counties in respect to coun- 
 ty bridges, the statute providing that 
 they ' shall cause all bridges to be 
 kept in repair,' and providing the 
 means to discharge this duty. The 
 court cites many of the conflicting 
 cases as to the liability of counties for 
 defective bridges, and concludes that 
 there is no satisfactory reason for a 
 different rule, in respect to defective 
 streets and highways, between a mu- 
 nicipal corporation proper and a coun- 
 ty, since both are created by the legis- 
 lature for public purposes, and the 
 ground of the action is the failure to 
 
§ 59 EXTENT OF LIABILITY AS TO HIGHWAYS. II5 
 
 This decision, as has been already shown, has no appli- 
 cation to a case where the liabilities of an incorporated 
 body are under consideration. Moreover, the rule in 
 regard to quasi corporations which has been derived 
 
 taken. It must be confessed that it 
 is not easy to find a legal basis for the 
 distinction between cities and counties 
 in respect of the duty to keep the 
 streets and highways under their re- 
 spective jurisdictions in repair, where- 
 by the former are held to an implied 
 civil liability for damages caused by 
 
 the neglect of this duty, and the latter 
 are held not to be thus liable. Dis- 
 carding this distinction, the courts in 
 a few States have decided that coun- 
 ties and cities are equally free from 
 implied civil liabihty in such cases." 
 See Sherman & Redfield on Neg., 
 4th ed., § 289. 
 
 plied for its performance, or upon a 
 sense of public utility, or upon all of 
 these grounds, it is not easy, as above 
 stated, to see why, when the same 
 conditions otherwise exist, the nature 
 of the incorporated instrumentality 
 should make a difference in the re- 
 sult. Whether the instrumentality be 
 a quasi corporation, such as a road 
 district, but with a corporate purse 
 for its purpose, or a county charged 
 with the like duty in respect of high- 
 ways, and having for the effectual 
 discharge thereof the power to raise 
 taxes, or a chartered municipality 
 having like duties and powers over 
 streets within its limits, why, under 
 conditions otherwise the same (there 
 being no statute giving or denying the 
 action), should the two former classes 
 of corporations be not liable while the 
 latter class is liable, for neglect of 
 duty, to an action for damages ? It 
 may be after all that there is a sub- 
 stantial difference not readily per- 
 ceived in the greater eificiency with 
 which the latter class of corporations, 
 as actually constituted, is able to per- 
 form the duty in question. And it 
 may be that this is only another of the 
 many examples with which our juris- 
 prudence abounds, — which abhors 
 generalizations, disregards mere sym- 
 
 metry, and unconsciously and silently 
 embodies the underlying notions of 
 the local communities, — this may be, 
 we suggest, after all only another ex- 
 ample of the fact that logic and law 
 are not always precisely coincident 
 or coterminous ; that law is frequently 
 logic limited and circumscribed by a 
 sense of expediency ; and that ac- 
 cordingly legislators and courts de- 
 clare and apply distinctions that are 
 oftentimes easier to feel than to un- 
 fold and define, and which do not 
 obviously consist with an indefinite 
 extension and inexorable application 
 of those principles of logic that are 
 apparently applicable to and seeming- 
 ly control the subject. The foregoing 
 considerations are applicable to all 
 kinds of quasi corporations. These 
 are primarily and distinctively State 
 instrumentalities, and the prerogative 
 of partaking of the State's exemption 
 from liability in respect of the exercise 
 of all of their public functions and 
 duties without exception, is one which 
 naturally grows out of the manner and 
 objects of the creation." 
 
 In Elliott on Roads and Streets, p. 
 319, it is said: "Theoretically there 
 is a difference between municipal cor- 
 porations and counties, and the theory 
 constructed by the decided cases 
 
Il6 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § 6o 
 
 from it, no longer exists unchallenged, and further in- 
 vestigation, it is believed, will show that there is no gen- 
 eral rule of law in this country which exempts counties, 
 towns, or townships from this liability. 
 
 § 60. Liability should attach to every corporate body.— 
 Every independent corporate body upon which is put 
 the duty of repairing the highways within its limits should 
 be answerable for any neglect to exercise reasonable care 
 
 leads to important results in the law 
 of highways. Counties are not, in 
 general, regarded as municipal cor- 
 porations, but are said to be quasi 
 corporations. A county is a public 
 corporation, organized by the su- 
 preme power of the State for govern- 
 mental purposes, and as a means of 
 enabling the inhabitants of a desig- 
 nated territorial district to control 
 their local affairs. The type of the 
 American county is the British shire, 
 but the American county is a stronger 
 and more compact organization than 
 the British shire, and it is invested 
 with more comprehensive powers. It 
 is, in truth, a political unit. The Nor- 
 mans seem to have framed the county 
 system, and under the system as they 
 framed it the county was governed by 
 the sheriff, whose power was almost 
 autocratic. It seems that the Amer- 
 ican decisions which have followed the 
 English doctrine respecting the hun- 
 dred and the shire have wandered 
 
 . ..." A county is, in all essential 
 respects, a corporation, and is in- 
 vested with the usual incidental pow- 
 ers of a corporation of its class, and 
 the distinction made between a county 
 and a city by many of the cases is not 
 easily vindicated on principle. Judge 
 Thompson says of the rule denying 
 county liability : ' Where, therefore, 
 counties are erected into corporations, 
 provided with a corporate fund, or the 
 power of raising the same, and in- 
 vested with the care of highways and 
 bridges, the reason of the rule ceases, 
 and the rule ought to fall with it ; 
 they should stand upon the same 
 footing, in this regard, as chartered 
 cities.' It is no answer to this argu- 
 ment to say that counties are political 
 subdivisions, for cities are political 
 subdivisions and governmental instru- 
 mentalities as fully as counties are, 
 and in this respect the keenest vision 
 can discover no difference between 
 the two classes of public corporations, 
 
§ 6l EXTENT OF LIABILITY AS TO HIGHWAYS. II7 
 
 to keep them safe. And it is ordinarily admitted that 
 every such body is answerable to the public for a neglect 
 of this kind and may be indicted therefor.^ But it is said 
 that no action for damages can be maintained against such 
 bodies as are termed involuntary corporations.^ Why an 
 individual who has been injured by the negligent acts of 
 such a corporation should lose his remedy, is not appar- 
 ent. A body of this character is capable of possessing 
 and controlling property in its own right and acquires in- 
 dividual strength in the community, and it is no hardship 
 to put upon it those duties and obligations which come 
 into life with the independent existence of the corporate 
 body. The care of the streets in the country, like the 
 care of the streets in the city, requires the performance of 
 a ministerial duty in respect to property, and the duty 
 will be controlled in each place by the circumstances 
 which surround it and which determine the nature of the 
 care to be exercised. In each case the public needs to 
 know that it may go about its work using reasonable 
 care and may rely upon and demand the exercise of rea- 
 sonable care on the part of the authorities in the discharge 
 of their work. Any other principle is destructive of the 
 security of individual life and property. Moreover, the 
 duty to exercise care does not rest upon an individual 
 because of his consent to its obligation. It arises from 
 the rights of others. 
 
 § 61. Distinct corporate body must have control. — Coun- 
 ties, townships, and towns endowed with the power of 
 
 1 Comyns. Dig., title Chemin, 6, 3 ; 11 Wend. 539; Hutchinson v. Filk 
 
 King V. Inhab. of York, 2 W. Black. (Minn.), 47 N. W. Rep. 255 (1890) ; 
 
 685 ; Russell v. Men of Devon, 2 T. Wild v. Paterson, 47 N. J. L. 406 ; 
 
 R. 667; Hill V. Boston, 122 Mass. The Queen v. Poole, L. R. 19 Q. B. 
 
 344. See as to indictment generally : D. 602 (1887) ; Thompson on Nag., 
 
 Dillon on Munic. Corp., vol. ii., p. p. 805 ; Elliott on Roads and Streets, 
 
 1279 ; People V. Adsit (N. Y.), 2 pp. 24, 30, 493. 
 
 Hill 619 (1842); People v. Albany, = See w/ra, § 59, note. 
 
Il8 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 6l 
 
 artificial life by the State and capable of holding property 
 are in reality corporations, and quite generally through- 
 out the country these bodies are made corporations by 
 express words.^ 
 
 They have limited powers and liabilities, as indeed all 
 corporations have, but on that account they are none the 
 less corporations. It is a misnomer to call an organiza- 
 tion of this character a quasi corporation, for the requi- 
 site of corporate responsibility is present.^ And if the duty 
 to keep the highways within its limits in repair is imposed 
 upon it by statute, the obligation to answer for the neg- 
 lect of the duty is incidental to it. The case of Russell 
 V. Men of Devon was decided with reference to the gov- 
 ernmental subdivision of England, and parishes and coun- 
 ties there have no corporate existence.' The principle con- 
 tended for is merely that, where a corporation exists and 
 is charged by statute with the duty of caring for the high- 
 ways, the liability follows the existence of the duty. If 
 there is no corporation, we may readily admit there is no 
 corporate liability ; but if there is a corporation, whether 
 it be called voluntary or involuntary, it is more in accord 
 with the principles of the common law to preserve to in- 
 dividuals their right of action against the corporate body 
 
 ' In Laramie County v. Albany corporation. It cannot sue or be 
 
 County et al., 92 U. S. 307 (1875), it sued." 
 
 is said : 2 The possession of a corporate 
 
 "Corporate rights and privileges fund, ja/ra, § 12. See Riddle v. Pro- 
 
§§ 62, 63 . EXTENT OF LIABILITY AS TO HIGHWAYS. II9 
 
 for its negligence in respect to this duty than it is to de- 
 prive them of it. 
 
 The question, then, should not be, what kind of a cor- 
 poration is the municipality that has been negligent, but 
 rather, is it a corporate body ? For if it is, whether it be 
 a municipal corporation proper or a quasi corporation, it 
 should be held responsible for negligence in the care of 
 its highways. 
 
 § 62. English decisions sustain rule that every corporate 
 body is liable. — In a former chapter the English authorities 
 have been referred to at length to show the common-law 
 liability resting upon municipalities to repair highways. 
 By reference to these authorities it will be seen that the 
 liability for negligence is insisted upon if only there is a 
 corporate body charged with the duty to repair,* and that 
 this rule was clearly stated in the seventeenth century.^ Not 
 only have these authorities held all municipal bodies liable 
 for negligence, but they have gone so far as to repudiate 
 many cases which held that incorporated public trustees 
 were not liable for negligence respecting the care of docks 
 or the manner of making river and harbor improvements 
 for which the trustees were incorporated,* and they now 
 hold that the duty to exercise care rests upon these pub- 
 lic bodies, and that the funds which they hold, although 
 set aside for a particular purpose, are answerable for 
 damages occasioned by the negligence of the trustees.* 
 
 § 63. Certain American authority not applicable to the 
 question.^It has been recently said that in the United 
 
 ■ Supra, §§ 46-50. Gibbs v. Liverpool Docks, 3 H. & N. 
 
 ' Supra, § 16. 164 (1858); Winch V. Conservators of 
 
 = See Metcalfe v. Hetherington, 1 1 the Thames, L. R. 7 C. P. 458 (1872'); 
 
 Exch. 257 (185s); Sherman & Red- Smith v. West Derby Local B., 3 C. 
 
 field on Neg., § 326. P. D. 423 (1878); Southampton, etc. 
 
 * Gilbert v. Trinity House, L. R. 17 Bridge Co. v. Southampton Local 
 
 Q. B. D. 795 (1886); Mersey Docks v. Board of Health, 8 El. & Bl. 812 
 
 Gibbs, L. R. 11 H. L. C. 686 (1866); (1858). See infra, % 151. 
 
I20 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §64 
 
 States the very decided weight of authority upon this 
 question is that there is no liability on the part of coun- 
 ties, unless it is created by statute.^ But a careful exam- 
 ination of the authorities upon the question will show, it 
 is believed, that there is less ground for this assertion 
 than is generally supposed. A large percentage of the 
 cases cited to the proposition will be found to be decisions 
 of the New England States, or of the few other States 
 that have followed the New England view of the non- 
 liability of all municipal corporations. It is evidently 
 improper to consider these authorities which deny the 
 existence of the actionable duty in all cases as supporting 
 the proposition that quasi corporations, as such, are not 
 liable. Such authorities bear rather upon the general 
 question, does this duty ever exist ? and failing, as it is 
 believed they do, to uphold their contention on this 
 question, they need not be again examined with reference 
 to the topic now presented.* 
 
 § 64. Other authorities not sustaining broad distinctions. — 
 Of the other authorities usually cited to sustain what has 
 been said to be the prevailing view, namely, that counties 
 
 ' Elliott on Roads and Streets, p. 42. White v. City Council, 2 Hill 575 ; 
 
 ''In some of these cases it is specif- McKenzie v. Chovin, I McMull. 222; 
 
 ically said that there is no distinction Coleman v. Chester, 14 S. C. 291 ; 
 
 between the liabilities of cities and Black v. City of Columbia, 19 S. C. 
 
 counties in this respect. See Beards- 412, and said: "The true theory upon 
 
 ley V. Hartford, 50 Conn. 529, 47 Am. which these cases rest is that a mu- 
 
 Kep. 677 (1883). nicipal corporation is a mere govern- 
 
 T« Ca...u /""^-^i: :_ XL* _r *_i , T^i" 1 J f_,. i.T.*_ 
 
§ 64 EXTENT OF LIABILITY AS TO HIGHWAYS. 121 
 
 and towns are not liable for negligence respecting their 
 streets, some will be found to relate to duties quite dif- 
 ferent from the duty to repair highways, and many will 
 fall short of substantiating the broad proposition. With 
 regard to every case it may be said that it is of great 
 importance to examine it with reference to the law of the 
 locality where it has been decided. 
 
 The essentially different methods of controlling ordi- 
 nary highways which prevail in the States render it 
 almost impossible to make any accurate general state- 
 ment of the law in regard to this question. And it is 
 believed that much of the apparent divergence of judicial 
 opinion is traceable to the various statutes which govern 
 the question of the control and repair of the country roads 
 throughout the United States. 
 
 The establishment and maintenance of highways, in 
 the first instance, are governmental acts. They belong to 
 the State, and until the care of them is put into the hands 
 of some individual or some corporation distinct from the 
 State, no legal duty to keep them in a reasonably safe 
 condition exists. 
 
 And it is always necessary to constitute negligence on 
 the part of a municipal corporation that there should be a 
 breach of the duty to exercise care. It is essential, there- 
 fore, to show that this duty rested upon the particular 
 corporate body which is charged with negligence. In 
 the case of chartered municipalities the existence of the 
 duty to keep the corporate streets and bridges in a rea- 
 sonably safe condition for use is readily shown by a ref- 
 erence to the city, town, or village charter, as the case 
 may be. But in the case of involuntary corporations the 
 existence of the duty must be shown in some other way. 
 And it is reasonable to hold that unless the care of the 
 highways is given to the county, in no event should the 
 county be made responsible for them. So if a township 
 
122 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §65 
 
 has not control of the highways within its limits, it would 
 be manifestly unjust to put any liability upon it by rea- 
 son of their defective condition. In these cases no 
 breach of duty is shown. 
 
 If, however, the care and control of the highways is 
 given to a county, the duty of repairing them is put upon 
 it and there is a breach of this duty if it neglects to 
 exercise reasonable care to keep them in a safe condition 
 for use. And in such a case no sufficient reason is seen 
 for not allowing an action for damages against any 
 county that has corporate life and property. 
 
 § 65. States holding involuntary corporations liable. — In 
 Pennsylvania it was held as early as 1843 that townships 
 were liable for neglect in the performance of the duty to 
 keep the highways in a reasonably safe condition for 
 use.* The duty to repair was clearly put upon the town- 
 ships, and the action on behalf of one injured followed 
 as a common-law remedy. So in Maryland, upon care- 
 ful consideration, it was held, in 1^63, that the duty to 
 keep the highways in good condition rested upon 
 counties under the statutes of that State, and that an 
 action for damages based on a breach of this duty could 
 be maintained against a county.^ In Indiana it has been 
 said that principle favors the rule of liability, but in 
 view of the earlier decisions, it is only applied in the 
 
 iDean v. New Milford Tp., 1; W. Consult also Ford v. School District, 
 
65 
 
 EXTENT OF LIABILITY AS TO HIGHWAYS. 
 
 123 
 
 case of negligence respecting bridges.^ The same dis- 
 tinction is recognized in Iowa, wliere it is held that the 
 duty to keep bridges in repair is clearly imposed upon 
 counties, and that an action for damages can be main- 
 tained for a breach of this duty.* In Oregon it is held 
 that counties are liable in damages for negligence in the 
 care of the highways,^ and in an elaborate discussion of 
 
 ' See opinion of Elliott, C J., in 
 Howard County Com. v. Legg, 93 
 Ind. 523, 47 Am. Rep. 390 (1883); 
 see also House v. Montgomery 
 County Com., 60 Ind. 580 (1878); 
 Morgan County Com. v. Pritchett, 85 
 Ind. 68 (1882) ; Fulton County Com. 
 V. Rickel, 106 Ind. 501 (1886); Knox 
 County V. Montgomery, 109 Ind. 69. 
 
 'In Wilson v. Jefferson County, 13 
 la. 181 (1862), where an injury was 
 occasioned by the want of repair of a 
 county bridge, the court said : " If 
 the supervisor is not liable in a case 
 of this description, the question recurs, 
 to whom must the plaintiff look for 
 indemnity? We think the county. 
 We think so because the county is 
 charged with the duty of building and 
 maintaining bridges and even repair- 
 ing them, when the requisite expendi- 
 ture for so doing is large. This duty 
 involves the corresponding obligation 
 or liability to pay damages resulting 
 from a neglect of the same. This 
 rule is not only authorized and sanc- 
 tioned by the analogies, but by the 
 policy of the law, which requires that 
 the traveling public should have some 
 security for a safe passage over the 
 bridges and highways of the country." 
 See also Brown v. Jefferson County, 16 
 la. 339; Soper v. Henry County, 26 la. 
 264 (1868); Taylor v. Davis County, 
 40 la. 29s ; Moreland v. Mitchell 
 County, 40 la. 394; Huston v. Iowa 
 County, 43 la. 456 (1876); Krause v. 
 
 Davies County, 44 la. 141; Kincaid v. 
 Hardin County, 53 la. 430; Huff v. 
 Powesheik County, 60 la. 529 (1883); 
 Cooper V. Mills County, 69 la. 350 
 (1886). The rule is criticised, how- 
 ever, in Green v. Harrison County, 61 
 la. 311 (1883). Townships in Iowa 
 have no legal capacity to sue : Wells 
 V. Stomback, 59 la. 376 (1882); West 
 Bend v. Munch, 52 la. 132. 
 
 ' McCalla v. Multonah County, 3 
 Ore. 424 (1869); Eastman v. County of 
 Clackamas, 32 Fed. Rep. 24 (1887), in 
 which case Deady, J., says : " Follow- 
 ing the case of Russell v. Devon Co., or 
 the provisions of their own statutes, 
 mostof the American courts have held 
 that a county is not liable in damages 
 for an injury sustained by any one in 
 consequence of failing to keep in re- 
 pair a highway or bridge, while they 
 have been generally agreed that a 
 town incorporated under a special 
 statute or charter, with authority over 
 the streets and bridges within its 
 limits, and the power to raise money 
 by taxation for that purpose, is so 
 liable, unless otherwise provided by 
 statute. Dill, Mun. Corp., 2d ed., 
 § 785 ; Rankin v. Buckman, 9 Or. 
 
 253- 
 
 " The reason given for this distinc- 
 tion — that the Inhabitants of a town 
 incorporated under a special statute 
 consent thereto, while a county exists, 
 without the consent of its inhabitants, 
 simply as a subdivision of the State 
 
124 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. §66 
 
 the question in the Supreme Court of Texas it is said 
 that the tendency of recent decisions is toward the 
 recognition of the liability.^ 
 
 § 66. States where duty does not rest upon a municipality. 
 — In many of the States the duty to repair highways does 
 not rest upon quasi corporations, but by statute is put 
 upon certain public officials.* In all cases where such a 
 state of facts exists, it is of course impossible to contend 
 that there is corporate negligence, for there is no corpo- 
 rate duty. And when statutes of this character exist, it 
 is not surprising to find the courts deciding against the 
 liability of counties or towns. A clear instance of this 
 freedom from liability because no duty rests upon the 
 municipality, is seen in the case of towns in New York 
 State. 
 
 The duty to repair highways by the early statutes of 
 this State was put upon the commissioners of highways, and 
 
 ■ — shows that it is a distinction with- former, because the latter are sup- 
 out any substantial difference. posed to accept their charters volun- 
 
 "Ini Thomp. Neg.6i8, the author, tarily, while the duties and obliga- 
 
 after premising that the ground of the tions annexed to the former are im- 
 
 judgment in Russell v. Devon Co. is posed on them involuntarily, is based 
 
 not sound when applied to counties on an assumption, in most cases, un- 
 
 in the Western States, says : true in point of facts, and is, even 
 
 " ' These counties are political bod- where the premises are correct, fan- 
 
 ies, having a common administrative tastical and destitute of sense. There 
 
 board elected by voters of the coun- is no sound distinction between the 
 
 ty,by which the business of the county sanction of an obligation voluntarily 
 
 is transacted. Through this board assumed by a public body and that of 
 
§ 66 EXTENT OF LIABILITY AS TO HIGHWAYS. 1 25 
 
 the towns were under no obligations in respect to them.^ 
 These municipalities, therefore, were not liable for the 
 negligence of the commissioners in the discharge of this 
 
 ' Monk V. New Utrecht, 104 N. Y. 
 552 (1887). In People ex rel. Van 
 Keuren v. Town Auditors, 74 N. Y. 
 310 (1878), Andrews, J., says : 
 
 " Under our system no corporate 
 duty is imposed upon towns in re- 
 spect to the care, superintendence, or 
 regulation of highways within their 
 limits. Commissioners of highways 
 have, by the statute, the care and su- 
 perintendence of highways (l Rev. 
 St. 501, § i), and, in the administra- 
 tion of the highway system, they and 
 the overseers of highways in subordi- 
 nation to them, are independent pub- 
 lic officers, exercising public powers 
 and charged with public duties pre- 
 scribed by law. Highways are laid 
 out and discontinued by the commis- 
 sioners under the regulations con- 
 tained in the statute (i Rev. St. 502, 
 § 2). They receive and disburse the 
 money raised by taxation for the 
 maintenance of highways and apply 
 it in their discretion, independently of 
 any control of the town, and are not, 
 in any respect, subject to its direction 
 in the discharge of their duties. They 
 are responsible in a civil action for 
 any injury resulting from their neg- 
 lect to repair a highway (if provided 
 with means for that purpose) whereby 
 an individual sustains damage (Hover 
 V. Barkhoof, 44 N. Y. 1 13) ; and pow- 
 er is given them to sue in their own 
 name to enforce penalties and other 
 liabilities created by the highway act. 
 
 " On the other hand, the town, in 
 its corporate character, has no con- 
 trol over the highways. It cannot 
 lay out a highway or discontinue one. 
 It is not liable for failure to keep 
 highways in repair. Highways ar£ not 
 
 the property of the town, and the use 
 is in the public, not for the benefit of 
 the inhabitants of the town alone, but 
 of the whole community. The town 
 exercises but two important functions 
 in respect to highways : it elects the 
 commissioners of highways, and de- 
 termines, through the electors in town 
 meeting, what sum, if any, exceeding 
 $250 in each year, shall be raised by 
 taxation for the improvement of high- 
 ways and bridges. The election of 
 commissioners of highways by towns 
 is a convenient method of designating 
 suitable public agents to discharge 
 the duties imposed for general public 
 purposes upon those officers, and the 
 State has committed to the portion of 
 the public residing in the locality to 
 determine within certain limits what 
 amount of taxation shall be imposed 
 for the support of highways. These 
 circumstances do not, however, make 
 highway officers agents of the town, 
 so as to subject the town to liability 
 for their acts. This view has been 
 held by the Supreme Court in many 
 cases, commencing with the case of 
 Morey v. The Town of Newfane, 8 
 Barb. 645, in which an able opinion 
 was delivered by Selden, J. See 
 Town of Fishkill v. Plank-road Co., 
 22 Barb. 645 ; Town of Gallatin v. 
 Loucks, 21 Id. 578 ; Town of Galen 
 V. Plank-road Co., 27 Id. 543 ; Gailor 
 V. Herrick, 42 Id. 79." 
 
 See also Loomis v. Board of Audi- 
 tors, 75 N. Y. 316 (1878). The case 
 of Ensign v. Livingston County, 25 
 Hun 200 (188 1), decided in the fourth 
 department of the Supreme Court of 
 New York, is an authority supporting 
 the view that even if the duty to re- 
 
126 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. 8 66 
 
 duty until made so by statute.^ In several other States 
 the reason for the non-liability of the municipalities 
 charged with negligence has been announced to be that 
 the corporation sued was under no duty to care for the 
 highways.^ 
 
 pair a bridge is clearly put upon a 
 county, no action for a failure fo per- 
 form the duty can be maintained 
 against the county. 
 
 This case, however, goes much fur- 
 ther than any previous authority, and 
 in view of the quotation just given 
 is believed to be a questionable de- 
 cision. 
 
 ' See Laws i88i, ch. 700. This 
 law is constitutional, Taylor v. Con- 
 stable, 40 N. Y. St. R. 60, IS N. Y. 
 Supp. 795 (1891); Eveleigh v. Houes- 
 field, 34 Hun 140 (1884) ; Warren v. 
 Clement, 24 Hun 472 (1881) ; Eraser 
 V. Tompkins, 30 Hun 168 (1883). 
 Infra, § 138. 
 
 ° In Greene County v. Eubanks, 80 
 Ala. 204 (1885), it is said : 
 
 " The court of county commission- 
 ers exercises a quasi legislative au- 
 thority in respect to the public high- 
 way ; and the county, independent 
 and exclusive of statutory liatDility, is 
 not responsible for the manner in 
 which the authority may be exer- 
 cised." 
 
 In Covington County v. Kinney, 45 
 Ala. 176 (1871), after reviewing the 
 statutes of the State in regard to the 
 
 pair. It cannot, therefore, be respon- 
 sible for an injury growing out 
 of a failure in this particular. This 
 is otherwise with towns and cities." 
 
 See also William v. Stillwell, 88 
 Ala. 332, 6 So. Rep. 914 (1889); 
 Dunn V. Court of County Revenues 
 of Wilcox, 8 5 Ala. 144 (1887); Lee 
 County V. Yarbrough, 85 Ala. 590, 
 S So. Rep. 341 (1888) ; Askew v. Hale 
 County, 54 Ala. 639, 25 Am. Rep. 
 730 (1875). 
 
 In Scales v. Ordinary of Chatta- 
 hoochee County, 41 Ga. 225 (1870), it 
 is said : 
 
 " We do not see why a county 
 should be liable for a failure of a pub- 
 lic officer to perform his duty as to 
 bridges and roads any more than 
 upon his failure to do any other duty 
 required by him. The law does not 
 cast the duty upon the county, but 
 upon the officers, and they are officers 
 of the State, although it may be that 
 their duties are confined to the coun- 
 ty." See also County of Monroe v. 
 Flynt, 80 Ga. 488 ; Arnold v. Henry 
 County, 81 Ga. 730 (1888) ; Smith v. 
 Floyd County, 85. Ga. 420 (1890). 
 
 In Reardon v. St. Louis County, 
 
§67 
 
 EXTENT OF LIABILITY AS TO HIGHWAYS. 
 
 127 
 
 § 67. States admitting liability of cities, but denying that 
 of involuntary corporations. — Some courts, however, deny 
 the liability of counties or townships even when the duty 
 to repair rests upon them and although the liability of 
 cities is upheld. The ground of the distinction has been 
 already stated, and is further illustrated in the cases given 
 in the notes.^ This position, however, is not founded on 
 
 it derives all its authority, not through 
 the county, but directly from the stat- 
 ute. The county has no authority to 
 give any direction or instruction to 
 the county court as to the proper per- 
 formance of its duty." 
 
 In Abbett v. Johnson County 
 Com., 114 Ind. 61 (1887), it is said : 
 
 " In the absence of a statute impos- 
 ing the duty upon counties in express 
 terms, and authorizing county boards 
 to raise and appropriate the means of 
 keeping highways in repair, a county 
 is not responsible for the negligence 
 of those charged with the care of pub- 
 lic highways, nor can an action be 
 maintained against it for an injury 
 occasioned by a defective highway 
 where no right of action is expressly 
 given by statute." See also Sullivan 
 County V. Arnett, 116 Ind. 438 
 (1888). 
 
 In King v. Police Jury of St. Lan- 
 dry, 12 La. Ann. 858 (1857), it was 
 held that a parish in Louisiana was 
 under no duty to repair a highway, 
 and so was not liable for negligence 
 in respect thereto. 
 
 In Symonds v. Clay County, 71 111. 
 355 (1874), it is said that all counties 
 in Illinois are mere political or civil 
 divisions of the State, and all their 
 duties are prescribed by statute. And 
 in Browning v. City of Springfield, 17 
 111. 143 (1855), the distinction in re- 
 spect to quasi corporations is put 
 upon the ground that there is no com- 
 plete duty to repair resting upon 
 
 them. See further, however, Wal- 
 tham v. Kemper, 55 111. 346; Hedges 
 V. County of Madison, 6 111. 567 
 (1844); South Ottawa v. Foster, 20 
 111. 296; Russell v. Steuben, 57 
 111. 35. 
 
 In Sutton V. Police Board of Car- 
 roll Co., 41 Miss. 236 (1866), the 
 court also held that the duty to re- 
 pair was upon the road overseers, and 
 that no action could be brought 
 against the county. See Brabham v. 
 Hinds County, 54 Miss. 363 (1877). 
 
 1 In Punn v. Agricultural Society, 
 46 Ohio St. 93 (1889), Williams, J., 
 says : " There is a class of public cor- 
 porations, sometimes called civil cor- 
 porations, and sometimes quasi cor- 
 porations, that, by the well-settled 
 and generally accepted adjudications 
 of the courts, are not liable to a pri- 
 vate action in damages, for negligence 
 in the performance of their public 
 duties, except when made so by legis- 
 lative enactment. 
 
 " Of this class, are counties, town- 
 ships, school districts, and the like. 
 The reason for such exemption from 
 liability, is that organizations of the 
 kind referred to are mere territorial 
 and political divisions of the State, 
 established exclusively for public pur- 
 poses, connected with the administra- 
 tion of local government. They are 
 involuntary corporations, because cre- 
 ated by the State without the solicita- 
 tion, or even the consent, of the people 
 within their boundaries, and made de- 
 
128 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. §67 
 
 principle^ and is not supported by the weight of au- 
 thority,^ 
 
 positaries of limited political and gov- 
 ernmental functions, as to be exercised 
 for the public good, in behalf of the 
 State, and not for themselves. They 
 are no less than public agencies of 
 the State, invested by it, of its own 
 sovereign will, with their particular 
 powers, to assist in the conduct of 
 local administration, and execute its 
 general policy, with no power to de- 
 cline the functions devolved upon 
 them, or withhold the performance of 
 them in the mode prescribed, and 
 hence are clothed with the same im- 
 munity from liability as the State itself. 
 
 " The Board of Commissioners v. 
 Mighels, 7 Ohio St. 119; Finch v. 
 Board of Education, 30 Ohio St. 37 ; 
 The State v. Powers, 38 Ohio St. 54 ; 
 feigelow V. Randolph, 14 Gray 541 ; 
 Lloyd V. The Mayor, etc., I Selden 
 369 ; Bailey v. The Mayor, etc., 3 Hill 
 531 ; Riddle v. Locks and Canals, 7 
 Mass. 169 ; Brown v. South Kennebec 
 Agricultural Society, 47 Maine 275." 
 
 In Altnow v. Sibley, 30 Minn. 186, 
 44 Am. Rep. 191 (1883), although it 
 was admitted that towns were created 
 by statute, and were by statute re- 
 quired to repair highways, it was held 
 that they were not liable in a civil 
 action for danriages resulting from 
 non-repair of a public highway. The 
 court, however, based its holding 
 
 them, are liable, in private actions, 
 for disrepair of streets ; and it is con- 
 tended that as by statute it is made 
 the duty of towns to keep highways in 
 repair, and taxation for that purpose is 
 authorized, the rule of liability appli- 
 cable to the corporations mentioned 
 ought to be applied to them also. 
 But whatever may be the reasons as- 
 signed, and whether they are consist- 
 ent, or in all instances sensible or not, 
 the distinction between the two cases 
 is clearly and firmly established." The 
 Chief-Justice of the court, however, 
 adds a brief opinion in which he says ; 
 " I find it hard to distinguish in prin- 
 ciple between cities and towns in re- 
 spect to their liability for neglect of the 
 duty imposed upon them to repair 
 streets and highways," and then rests 
 the case simply on authority. See 
 opinion of Elliott, C. J., in Howard 
 County Com. v. Legg, 93 Ind. 523, 47 
 Am. Rep. 390(1883). 
 
 See also Granger v. Pulaski, 26 
 Ark. 37 (1870) ; Arkadelphia v. Wind- 
 ham, 49 Ark. 139 (1886); Marion 
 County V. Riggs, 24 Kas. 255(1880); 
 Beach v. Leahy, 1 1 Kas. 23 ; Eiken- 
 berry v. Bazaar, 22 Kas. 556(1879); 
 Langan v. Atchison, 35 Kas. 318; 
 Wheatley v. Mercer, 9 Bush (Ky.) 
 704 (1873) ; White v. Chowan County, 
 90 N. C. 437 (1884) ; Jackson v. 
 
§§68,69 EXTENT OF LIABILITY AS TO HIGHWAYS. 1 29 
 
 § 68. Conclusion from the authorities.— From the fore- 
 going examination of the authorities it will be seen that 
 the courts throughout the country are in a state of pro- 
 nounced disagreement upon this subject, and that the law 
 of each locality must be studied by itself and with special 
 reference to local statutes and the plan by which the 
 highways of the State are controlled. The tendency of 
 later decisions, however, is toward the establishment of 
 the just rule of liability wherever there is a breach by a 
 corporate body of the duty to keep highways in a rea- 
 sonably safe condition for use, and there is reason to 
 believe that eventually, by statute if not by decision, the 
 law upon this question will be more uniform throughout 
 the country. 
 
 § 69. Further treatment of subject. — Having considered 
 the general character of the duty to keep highways in a 
 reasonably safe condition for use, and having concluded 
 that at common law the obligation is ministerial, and 
 that where it rests upon an incorporated municipality it 
 must be discharged by such a corporation as its other 
 municipal duties are performed, and that for negligence 
 in its discharge the corporation must respond in damages 
 to any person injured by its negligence, we shall now 
 investigate more particularly the nature of the duty, and 
 consider the many questions that arise in applying it to 
 the varied affairs of municipal life. 
 
 In doing this we shall defer the examination of the 
 questions arising under the statutes of those States that 
 hold the doctrine that there is no liability at common 
 law for the breach of this duty, and shall first consider 
 what are believed to be the common law or prevailing 
 rules with respect to the liability of municipal corpora- 
 tions for negligence in regard to (i) Streets and Roads, 
 (2) Sidewalks, and (3) Bridges. 
 9 
 
CHAPTER IX. 
 
 DUTIES OF MUNICIPAL CORPORATIONS RESPECTING STREETS 
 
 AND ROADS. 
 
 § 70. Definition of street and road. 
 
 71. Duty at common law and by statute not the same. 
 
 72. Common-law duty of municipalities respecting streets and roads. 
 
 73. Essential that way should be under corporate control. 
 
 74. Control, how shown. 
 
 75. How far want of funds excuses performance of duty. 
 
 76. Reasonable care varies with circumstances. 
 TJ. Entire width of city street to be safe for travel. 
 
 78. Sufficient width for ordinary use to be open in country. 
 
 § 70. Meaning of words street and road. — The word 
 street is here used to mean a public way in a city or town 
 for the use of vehicles.^ The word is more frequently 
 used to describe the entire width of a way, including the 
 sidewalks, but its original meaning and the advantage of 
 distinguishing in treatment between the street proper 
 and the sidewalk commend its restricted use.^ The word 
 road is also used to designate that part of a country high- 
 way set apart for vehicles. 
 
§ 7 1 DUTIES RESPECTING STREETS AND ROADS. I31 
 
 §71. Duty at common law by Statute not the same. — It is 
 desirable to notice that the duty to be described in this 
 chapter represents the common-law obligation as devel- 
 oped from the principle that one person may not by negli- 
 gence injure another, and that it is not descriptive of the 
 similar duty that has been put upon municipal corporations 
 by statutes in certain localities. This latter duty must in 
 €ach State be derived from the statutes existing there, 
 and the entire obligation of municipalities in respect to 
 their streets will be found embodied in these legislative 
 acts. In a subsequent chapter these statutes will be con- 
 sidered.^ 
 
 § 72. Common-law duty of municipalities respecting 
 streets and roads. — The specific duty resting upon every 
 municipal corporation with regard to the streets under 
 its control is that it shall exercise reasonable care to see 
 that they are safe for lawful use by any member of the 
 public for any of the purposes for which a public street 
 is designed.^ Such corporations are not insurers of the 
 safety of the public streets, as the courts have frequently 
 
 1 Infra, %% 126-138. ward persons using the sidewalks is 
 
 « The rule in the text is supported considered. In Rehberg v. New 
 
 :by the authorities, cited supra, % 57. York, 91 N. Y. 137 (18R3), the city 
 
 In Chicago v. Ke^fe, 1 14 111. 222, was held liable to a laborer who was 
 
 I W. Rep. 351, it was said : " Those injured while working on the streets 
 
 using the streets for recreation or for for a private corporation. See also 
 
 pleasure, or for mere idle curiosity, so Galveston v. Hemmis, 28 Am. &. E. 
 
 that they do not infringe upon the C. C. 265 (1889); Kimball v. Best, 83 
 
 rights of others to use them, are Mass. 417 (1861), a police officer may 
 
 equally within the protection of the recover ; Palmer v. Portsmouth, 43 
 
 law while using them, and hence N. H. 265 (1861), a member of the 
 
 equally entitled to have them in a fire department may recover; Coots 
 
 reasonably safe condition, with those v. Detroit (Mich.), 25 Am. & Eng. 
 
 who are passing along them as trav- C. C. 250 (1889), infra, § 170 ; Turner 
 
 *lers, or in the pursuit of their daily v. Indianapolis, 96 Ind. 51, 7 Am. & 
 
 -avocations." Eng. C. C. 94; see Thompson on 
 
 See infra, §90, where the lia- Neg., vol. ii., p. 1242, § 17. 
 iility of municipal corporations to- 
 
132 
 
 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. 
 
 72 
 
 declared.^ Their whole duty is discharged if they and 
 their representatives exercise reasonable care to keep the 
 
 ■ In Hunt V. New York, 109 N. Y. 
 134 (1888), the damage was caused 
 by an explosion of steam pipes in a 
 city street, and Andrews, J., said : 
 " The mere existence of a defect from 
 which a traveler sustains injury does 
 not independently of negligence estab- 
 lish a culpable breach of duty on the 
 part of a municipality. The cases of 
 injuries from obstructions placed in 
 streets by third persons without the 
 consent of the municipality, of which 
 it has no notice, are illustrations of 
 the principle that the liability of a 
 municipality for the unsafe condition 
 of its streets rests upon the basis of 
 negligence, and not upon an obliga- 
 tion assumed or imposed by law to 
 keep the streets at all times and at all 
 hazards in an absolutely safe con- 
 dition for travel. Where an injury 
 happens from the defect of a road- 
 way itself, or from a dangerous con- 
 dition of the street created by the act 
 or the consent of the municipality, 
 negligence, as in the other cases men- 
 tioned, is the ground of liability. In 
 the one class of cases the conclusion 
 of negligence may be reached more 
 easily than in the other, but the prin- 
 ciple upon which the liability depends 
 is the same in both, notwithstanding 
 the difference in the circumstances. 
 Where the defect is known, rendering 
 
 been carefully guarded, but the doc- 
 trine has been frequently reiterated in 
 this court that there is no absolute 
 guaranty or undertaking on the part 
 of a municipal corporation that its 
 streets or other constructions shall at 
 all times and under all circumstances 
 be in a safe and proper condition, 
 and that its obligation and duty ex- 
 tend only to the exercise of reason- 
 able care and vigilance There 
 
 is no proof that the steam pipes were 
 improperly located, or indeed that any 
 different location was practicable, or 
 that a manhole was not a proper ar- 
 rangement, or that there was any lack 
 of care in conducting the work. The 
 laying of steam pipes for the purpose 
 for which these were laid was a new 
 enterprise. The evidence introduced 
 by the plaintiff tends to show that 
 such an accident, as in fact occurred, 
 could not have been anticipated, and 
 that there was no reasonable ground 
 at the time for apprehending any 
 danger from the proximity of the 
 steam pipes to the gas pipes. Under 
 such circumstances the omission of 
 the city to make a regulation pre- 
 scribing the manner in which the 
 steam pipes should be laid, furnishes 
 no evidence of negligence." 
 
 See further upon the proposition 
 that municipal corporations are not 
 
§ ^2) DUTIES RESPECTING STREETS AND ROADS. 1 33 
 
 Streets safe for ordinary use, and a failure in the perform- 
 ance of this duty will render them liable for the damage 
 thereby occasioned.^ 
 
 § 73. Essential that way should be public. — In order to 
 establish a claim against a municipal corporation for 
 neglect with respect to any particular street, it is essential 
 to show that the municipality was under the duty to 
 exercise care with respect to that specific street. For it 
 is only such streets or roads as are public and are under 
 the corporate control that the municipality undertakes 
 to keep in a suitable condition for use. 
 
 The control of a street by the public authorities is a 
 matter easily settled with regard to the streets and roads 
 of cities or towns that have been long in use, and the 
 boundaries of which are clearly defined. But it becomes 
 a more difficult matter when the negligence charged re- 
 lates to a new street, or one that has been abandoned, or 
 to a private way over which the corporation has exercised 
 some control. In some instances it is a matter of import- 
 ance to prove that the particular place where the acci- 
 dent happened was within the limits of th'e public way 
 and under the control of the municipality charged with 
 negligence.^ 
 
 § 74. Control, how shown.— The essential matter is to 
 show that the street in regard to which it is claimed that 
 the corporation has been negligent has been acknowl- 
 edged by it as a public way. For the treatment of a way 
 by a municipality as a public street and an assumed charge 
 over it will render the corporation liable for subsequent 
 negligence, although there has been no legal laying out 
 
 1 See Raymond v. Lowell, 53 Am. 1017 (1891); Carpenter v. Cohoes, 81 
 
 Dec. 57, p. 67, note; supra, n. 2, p. N. Y. 21, 37 Am. Rep. 468 (i88o); 
 
 131, and infra, §§ 89, 90. Veale v. Boston, 135 Mass. 187 (1883). 
 
 « Seeley v. Bridgeport, 22 Atl. Rep. 
 
134 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 74 
 
 of the street, and this is upon the principle that the pub- 
 lic relies upon the proper supervision by the authorities 
 when they have once undertaken control.^ It is only, 
 however, where the public authorities have acted in such 
 a manner that it is fair to conclude that the street is de- 
 signed for use that the corporation will be charged with 
 the duty to keep it in a reasonably safe condition.^ If a 
 highway is not opened to the public or ceases to be used 
 for travel for six years in New York by statute it ceases 
 to be a highway.^ Dedication to the public by an owner 
 
 ' Dillon on Munic. Corps., § 1009. 
 In Potter v. Castleton, 53 Vt. 435 
 (1881), it was said: "The fact that 
 the town had never worked this path 
 is not decisive upon the question 
 whether it was a highway. If the 
 town had worked it, its character 
 could not be in dispute. But a high- 
 way may be as effectively established 
 by other means. If private individu- 
 als make a wrought way and the public 
 are permitted to use it for public travel 
 for a long time — or if the public travel 
 itself works a way without other 
 agency, and the way is suffered by the 
 town authorities to be used, as this 
 way was used, for many years, the 
 way becomes one which the town is 
 bound to keep in repair." See Tilton 
 V. Pittsfield, 58 N. H. 327 (1878). 
 
 " Taylor v. Woburn, 130 Mass. 494 ; 
 Wilson v. Wheeling, ig W. Va. •^a^ 
 
 Sharon Springs, 28 Hun 344 (1882) ; 
 Tower v. Rutland, 56 Vt. 28 (1884) ; 
 Salida v. McKenna (Colo.), 27 Pac. 
 Rep. 810 (1891); Crystal v. Des 
 Moines, 65 la. 502 (1885) ; Sewell v. 
 Gohoes, II Hun (N. Y.) 626 (1877); 
 Menderschid v. Dubuque, 29 la. 87 
 (1870). But there is no liability to a 
 property owner for not keeping a 
 street in repair. Moore v. Cape 
 Girardeau, 103 Mo. 470, 1 5 S. W. Rep. 
 755 (1890). See in reference to laying 
 out highways, etc., Elliott on Roads 
 and Streets, pp. 283-298 ; Morrill on 
 City Negligence, p. 39 et seg. And 
 consult infra, §§89, 119. 
 
 ^ In Hovey v. Village of Haver- 
 straw, 124 N.Y. 273, Parker, J. says: 
 "The statute (L. 1861, c. 311) which 
 provides that ' all highways that have 
 ceased to be traveled or used as high- 
 ways for six vears. shall cease to be a 
 
§ 74 DUTIES RESPECTING STREETS AND ROADS. 1 35 
 
 will not impose any liability upon the authorities until 
 they have in some way accepted the street ; ^ but if im- 
 
 raceway, which was twice bridged 
 and some other work done, but that 
 over a marsh, about 200 feet in all, no 
 attempt had been made to render the 
 road passable for teams and wagons. 
 The court said : ' Highways are for 
 public use to enable the public to pass 
 and repass with teams and vehicles, 
 such as are ordinarily used ; and when 
 a highway laid out shall remain un- 
 opened and unworked for six years, 
 the statute declares that it shall cease 
 to be a highway for any purpose. The 
 requirement to open and work a high- 
 way implies that it must be made 
 passable as a highway for public travel . 
 It need not be a first-class road ; it 
 need not be finished, but it must be 
 sufficient to enable the public to pass 
 over it.' 
 
 " While the court, in the case from 
 which we have quoted, did not have 
 under consideration the provision de- 
 claring that failure to use a highway 
 for six years shall operate to destroy 
 it, it did have before it that portion of 
 the same section which declares that 
 a failure to open and work a highway 
 within six years after its laying out, 
 shall have the same effect. Its deci- 
 sion, therefore, seems to make clear 
 not only the general purpose, but the 
 scope of the entire statute. 
 
 " As a road is declared not to be 
 opened and worked, within the mean- 
 ing of the statute, which is not made 
 passable for teams within six years, so 
 a road which for six years is not only 
 not used and traveled, but is impas- 
 sable for conveyances of any kind, is 
 ienced off and the public travel by 
 another route, presents a situation 
 upon which the statute must operate 
 to destroy its legal character as a high- 
 
 way. And it matters not that at the 
 beginning the road was rendered im- 
 passable and fenced off by a tres- 
 passer. Indeed, such must always be 
 the case, unless it be done by the pub- 
 lic authorities. The public can be 
 protected by the highway officials 
 whose duty it is to see to it that all 
 public highways are kept in proper 
 condition for public travel. They are 
 not only charged with a duty to do so, 
 but are provided with the legal ma- 
 chinery necessary to prevent trespass- 
 ers from doing damage to highways, 
 and the means necessary to restore 
 them to a safe and passable condition 
 for travel after injury done. And if 
 they neglect this duty or refuse to per- 
 form it for a period of six years and 
 the traveling public acquiesce, so that 
 in all that time no one can or does 
 make use of the highway, it ceases to 
 be such." 
 
 ' Ivory V. Deerpark, 116 N. Y. 476 
 (1889) ; Pomfrey v. Saratoga Springs, 
 104 N. Y. 459 (1887); People v. 
 Loehfelm, 102 N. Y. (1886) ; Sauls- 
 bury v. Ithaca, 94 N. Y. 27 ; Hol- 
 dane v. Cold Spring, 21 N. Y. 474 ; 
 Fitzgerald v. Binghamton, 40 Hun 
 332 ; O'Neil v. West Branch, 81 
 Mich. 544 (1890); Fletcher v. Scot- 
 ten, 74 Mich. 212; Byerly v. Ani- 
 mosa, 79 la. 204 (1890) ; Mansfield v. 
 Moore, 124 111. 133 (1888) ; Aurora 
 v. Colshire, 55 Ind. 484 (1876) ; Cart- 
 wright v. Belmont, 58 Wis. 370 (1883); 
 Ex parte Pittsburgh Alley, 104 Pa. 
 622 (1883) ; Gallagher v. St. Paul, 28 
 Fed. Rep. 305 (1886) ; Estelle v. Lake 
 Crystal, 27 Minn. 243 (1880) ; Ken- 
 nedy v. Le Van, 23 Minn. 513 (1877); 
 Shartle v. Minneapolis, 17 Minn. 308 
 (1871); Coates v. Canaan, 51 Vt. 131 
 
136 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §75 
 
 proved and cared for as a public thoroughfare by the cor- 
 poration, the duty of keeping it in reasonably safe con- 
 dition for use exists even if the highway was made by 
 others.^ And it has been held proper to prove that the 
 authorities repaired a defective street after an accident, 
 for the purpose of showing acceptance of the highway by 
 the city.^ It is error to take the question of acceptance 
 of the street from the jury, if the evidence is conflicting,^ 
 
 § 75. How far want of funds excuses failure to repair. — 
 Ever since the case of Russell v. Men of Devon,^ the 
 question of the bearing of a lack of funds in a corporate 
 treasury upon the duty to repair highways has been before 
 the courts. 
 
 The question has come into the cases by way of argu- 
 ment rather than for authoritative decision, however, for 
 municipal corporations ordinarily have ample power to 
 secure funds for the performance of this duty, and perhaps 
 it is on this account that the law is not entirely settled 
 upon this point.* 
 
 The defense or argument that want of funds will 
 excuse neglect to repair, presents itself in two forms : 
 
 (1878); Barton v. Montpelier, 30 Vt. ' Manchester v. Ericsson, 105 U.S. 
 
 650 (1858) ; People v. Blake, 60 Cal. 347 (1881); here it was said: The 
 
 497 ; Kennedy v. Cumberland, 65 question is, " whether the city au- 
 
 Md. 514, 7 Cent. Rep. 407 (1886); thorities had so far assumed the care 
 
 McCormack v. Baltimore, 45 Md. 524 ; of it as one of the streets of the town 
 
 Stark V. Lancaster, 57 N. H. 88 ; New as to incur an obligation to be diligent 
 
§ 75 DUTIES RESPECTING STREETS AND ROADS. 1 37 
 
 first, where it is claimed that there is a total lack of 
 corporate means ; and, second, where the contention is 
 that there are no funds which can be applied to repairing 
 the defective way. In regard to the first claim, it may 
 be conceded that the lack of any corporate fund and of 
 any power to secure one is a good defense to any cor- 
 porate liability for negligence, for in such a case there is 
 no full corporation in existence, and there is no juridical 
 person upon whom the duty rests and no violation of 
 any duty by such a person.^ The want of funds is not 
 in a case of this character the real defense, for it is the 
 lack of corporate existence which precludes recovery.^ 
 
 In regard to the second form of the defense, however, it 
 may be said that, as usually stated, it does not find support 
 in principle, and that the authorities which sanction it ^ are 
 
 ' Supra, §§ 59, 60. 
 
 See Browning v. Springfield, 17 111. 
 
 143 (185s). 
 
 2 Supra, §§ 61, 68. 
 
 ' In Hines v. Lockport, 50 N. Y. 
 238, the New York Court of Appeals 
 said that " the absence of necessary 
 funds, or the legal means of procur- 
 ing them, will excuse the performance 
 of the duty." But in Weed v. Ball- 
 ston Spa, 76 N. Y. 329 (1879), it was 
 held that "the ability to summon the 
 inhabitants to do highway labor 
 should be regarded as means under 
 the control of the corporation for per- 
 forming the duty imposed," and that 
 "the burden of showing want of 
 means was upon the defendant." See 
 Eveleigh v. Hounsfield, 34 Hun 140. 
 And quite recently in Rhines v. Royal- 
 ton, 40 N. Y. St. Rep. 662, 15 N. Y. 
 Supp. 944 (1891), the Supreme Court 
 has held, that the fact that all the 
 funds in the hands of the highway 
 commissioners of a town were pledged 
 for payment on a contract would not 
 
 relieve the municipality from liability 
 for neglecting to repair a dangerous 
 place in the highway. And in Ivory 
 v.Deerpark, 116 N. Y. 476 (1889), 
 Bradley, J., says : " But it is said that 
 the commissioners had no funds which 
 they were required to use for the pro- 
 tection of travel in that portion of the 
 highway, because the work to which 
 they should be applied was matter 
 within the discretion of the commis- 
 sioners, and that they used the money 
 elsewhere. It is true they are to exer- 
 cise their judgment in that respect, but 
 their discretion must be reasonably 
 exercised, else they may rest their 
 omission to do that, of trifling ex- 
 pense, which is essentially important 
 for the safety of travel, because they 
 may conclude or may have determined 
 to otherwise expend the money, and 
 thus furnish an excusable defense 
 against liability in almost all cases. 
 
 " The conclusion was not required 
 that the means could not be obtained 
 by those officers to make the neces- 
 
138 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 75 
 
 much qualified by late decisions in several courts. If the 
 corporation has any funds or any means of obtaining 
 them or of performing its duty without funds, it is bound 
 to respond to the obligation requiring the exercise of 
 care not to injure others. Because the corporation is 
 without funds at a certain time is no more reason for 
 excusing it from performing its duty to take care not to 
 injure individuals relying upon its fidelity, than there 
 would be for relieving an individual who is without 
 funds from the duty to take care not to injure his 
 neighbor. 
 
 The duty resting upon the corporation is simply to exer- 
 cise reasonable care to keep the streets in a fit condition for 
 use. If it is without funds and without power to borrow, 
 it can, at all events, protect the public from a discovered 
 danger by barriers or by closing the street.* And although 
 
 sary improvement at the place in appropriated, the conclusion was war- 
 question. The statute provides the ranted that they had funds with which 
 means for raising annually, for tlie to do this work, or may have pro- 
 use of the highway commissioners of cured them for the purpose, the ex- 
 each town, the sum of $1,000 (i R. S. pense of which would have been only 
 503, § 4; Laws of 1857, chap. 615). $25. In their application to cause 
 Also, through the action of the board loans to be made on the credit of the 
 of supervisors, additional money may town, no request was made for money 
 be borrowed on the credit of the town for this work." 
 to repair roads and bridges within it See Monk v. New U-trecht, 104. 
 (Laws of 1869, chap. 855; amended N. Y. 297 (1864); Garlinghouse v. 
 Laws of 1874, chap. 260). Jacobs, 29 N. Y. 297 (1864). 
 
 " Evidence was given upon the sub- ' Birmingham v. Lewis (Ala.), 9 
 
 ject of funds, and it appeared by the So. Rep. 243 (1891), here Walker, J., 
 
§ 75 DUTIES RESPECTING STREETS AND ROADS. 1 39 
 
 under extraordinary circumstances the inability of the 
 corporation to do anything toward the protection of the 
 
 Ala. 8 South. Rep. 683 ; Elliott, Roads 
 & S. 452. 
 
 " The excuse offered for the negli- 
 gence is disclosed by the exceptions 
 reserved to the refusal of the court to 
 admit evidence to show that the city 
 did not have the funds to improve 
 Eighteenth street ; that it had levied 
 the full rate of taxation allowed by 
 law, and had other expensive corpo- 
 rate duties to perform ; and that it did 
 not have the money or means to grade 
 or repair Eighteenth street, or put it 
 in condition that would admit of the 
 closing of said opening. It appeared 
 without contradiction that said street 
 had for a number of years been open- 
 ed, worked, and put in condition for 
 public travel, and cinders put on the 
 sidewalks, though in the locality where 
 the accident occurred the street was 
 not graded or improved, as were other 
 streets in the city. The case was tried 
 by the court without a jury, and if the 
 proposed proof had been admitted, it 
 would not properly have changed the 
 result. We have not discovered any 
 case in which a municipal corporation 
 has been held relieved of responsibil- 
 ity for damages resulting from a de- 
 fect in the street of a city because of 
 the insufficiency of the means at the 
 disposal of the authorities for purposes 
 of street improvements or repairs. In 
 several cases in which it was held that 
 the evidence did not show such insuf- 
 ficiency, it was suggested that dam- 
 ages for an injury similar to the one 
 shown in this case are not recovera- 
 ble of a municipal corporation which 
 has no means at all of raising a cor- 
 porate fund to improve or repair its 
 streets. The ground of such non- 
 liability is that that cannot be a legal 
 
 duty which the law does not permit to 
 be executed. Erie v. Schwingle, 22 
 Pa. St. 384; Hines v. Lockport, 50 
 N. Y. 236, In this case it was not 
 proposed to be shown that the city 
 authorities had exercised the power 
 conferred by section 24 of the amend- 
 ed city charter (Acts 1882-83, P- 3i8), 
 to require each male inhabitant of the 
 city between the ages of 1 8 and 50 
 years to work upon the streets 5 days 
 in each year, or in lieu of such work 
 to pay into the city treasury a sum not 
 exceeding $5, to be applied exclusive- 
 ly to the improvement of the streets, 
 and that the means so raised had 
 been properly applied ; nor was it 
 proposed to be shown that the city 
 authorities had exercised, for the im- 
 provement or repair of Eighteenth 
 street, the ample powers by the act 
 which was sustained by the decision 
 of this court in the case of Mayor, etc. 
 v. Klein, 89 Ala. 461, 7 South. Rep. 
 386. The powers conferred by those 
 acts constitute resources for street im- 
 provements and repairs. The offer 
 of proof not having gone to the extent 
 of showing that the city authorities 
 had exhausted the means at their com- 
 mand for the performance of the duty 
 imposed, the evidence was immaterial 
 and for that reason was properly ex- 
 cluded. Weed V. Ballston Spa, 76 N. 
 Y. 329 ; Incorporated Village of Shel- 
 by V. Clagett (Ohio), 22 N. E. Rep. 
 407. Furthermore, inability to im- 
 prove or repair Eighteenth street 
 would not relieve appellant in this 
 case. The hole into the sewer should 
 never have been allowed to remain in 
 the street unless the peril of its exist- 
 ence there could be obviated by the 
 erection of guards around it, or by 
 
I40 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 75 
 
 public from dangerous streets might be allowed as a de- 
 fense, the tendency of the courts is to repudiate the 
 excuse altogether.^ In England want of funds to repair 
 a highway has been held to be no defense where a cor- 
 poration had control,^ and the cases that held trustees 
 having funds devoted to specific purposes not liable for 
 negligence have been overruled ; and the fact that funds 
 were designed for keeping docks in repair has been held to 
 be no defense to an action for the damages suffered by- 
 neglect to repair.^ And in this country it may now be said 
 to be settled, that want of funds to repair streets will not 
 
 the placing of signals to give due 
 warning of the danger. No excuse at 
 all is suggested for the failure to pro- 
 vide any such safegfuards. The city 
 engineer stated on the trial that said 
 opening was necessary in order to 
 drain Eighteenth street, and that it 
 was arranged in the only practicable 
 way possible, as the street was not 
 graded or filled on that side. He did 
 not, however, pretend to say that the 
 safety of the public could not have 
 been provided for by barriers around 
 the excavation or in some other way, 
 or that the pit did not render the 
 street unsafe for public use. A city 
 has no more right to plan or create an 
 unsafe and dangerous condition of 
 one of its public streets than it has to 
 plan or create a public nuisance. 
 Gould V. Topeka, 32 Kan. 485, 4 Pac. 
 
 the proposition advanced by counsel 
 for appellee that a want of funds and 
 an absence of power to raise money 
 by taxation or otherwise, or to enforce 
 contributions of labor from the resi- 
 dents of the town to repair its streets 
 would free it from responsibility for 
 injuries sustained by reason of defect- 
 ive streets or sidewalks. The liabil- 
 ity of a town for injuries caused by 
 defective ways springs from its negli- 
 gence in the performance of corporate 
 duties, and that cannot be said to be 
 a duty which the municipality has no 
 power or agency to perform. But the 
 proof introduced by the defendant 
 falls short of the principle it was in- 
 tended to support. By its charter the 
 city of Meridian is given extensive 
 powers of taxation over property, per- 
 sons, and privileges, and one-half of 
 
75 
 
 DUTIES RESPECTING STREETS AND ROADS. 
 
 141 
 
 excuse a city for its neglect in regard to them, unless it 
 has exhausted all the means at its command to raise funds 
 or to make the repairs and unless the accident could not 
 have been prevented by guards or signals.^ 
 
 So where the owners of the adjoining property are 
 ultimately liable for the cost of repairs, want of funds in 
 the public treasury is no defense for a corporation that has 
 not discharged its duty.^ An important element that 
 
 ' See cases supra, pp. 137, 138 ; in- 
 fra, n. 2, and also Adsit v. Brady, 4 
 Hill (N. Y.) 630 ; People v. Adsit, 2 
 Hill 619 ; Peach v. Utica, 10 Hun 477 
 (1877) ; Erie City v. Schwingle, 22 
 Pa. 384 ; Albrittin v. Huntsville, 60 
 Ala. 486 (1877) ; Delger v. St. Paul, 
 14 Fed. R. 567 (1882); Dillon on 
 Munic. Corp., §1017; Elliott on 
 Roads and Streets, pp. 445, 446. 
 
 » In Village of Shelby v. Clagett, 46 
 Ohio St. 543 (1889), Bradbury, J., 
 says : " Counsel for the village offered 
 in evidence the ordinance fixing the 
 rate of taxation for the village for the 
 year 1882, for the purpose of showing, 
 in connection with evidence of the 
 value of the taxable property within 
 its limits, the amount of revenue col- 
 lected for street purposes, and that all 
 of it had been expended in other nec- 
 essary repairs. This evidence was re- 
 jected by the Common Pleas court, and 
 exceptions taken. Counsel contend 
 this was error, because the evidence 
 tended to rebut the charge of negli- 
 gence in omitting to repair the defect 
 complained of, and cite in support of 
 his contention the cases of Rooney v. 
 Inhabitants of Randolph, 128 Mass. 
 580; Monk V. New Utrecht, 104 N. 
 
 Y. 552. 
 
 " The cases arose under statutes of 
 their respective States, and in each 
 case the work was to be done at the 
 
 public cost ; and if it be conceded that 
 in this State, when repairs are to be 
 made at the expense of a municipal 
 corporation, a want of funds would be 
 a defense against a liability for dam- 
 ages for an injury caused by a neglect 
 to repair, yet the principle could not 
 be applied to the present case, for the 
 village could have discharged its duty 
 in this respect by requiring the owner 
 of the adjacent property to make the 
 necessary repairs, or upon his default 
 caused them to be made, and charge 
 the cost upon that property ; and the 
 united credit of the village and the 
 adjacent property would, no doubt, be 
 sufficient for that purpose, though the 
 village treasury was, at the time, 
 empty. The evidence was therefore 
 immaterial, and for that reason prop- 
 erly rejected." 
 
 And in New Albany v. McCuUoch, 
 127 Ind. 500, 26 N. E. Rep. 1074 
 (1891), Coffey, J., says :•" Section i. 
 Article 13, of our State Constitution, 
 provides that, ' No political or mu- 
 nicipal corporation in this State shall 
 ever become indebted, in any manner 
 or for any purpose, to an amount, in 
 the aggregate, exceeding two per 
 centum on the value of taxable prop- 
 erty within such corporation, to be 
 ascertained by the last assessment for 
 State and county taxes, to the incur- 
 ring of such indebtedness ; and all 
 
142 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 75 
 
 will enter into every case where this question comes be- 
 fore the courts is, what was the character of the defect 
 which the corporation has neglected to remedy ? If it is 
 a defect, such as a lack of a railing for several miles, the 
 remedying of which would require the expenditure of a 
 large sum of money and the danger from which is remote, 
 it cannot be shown that the corporation has violated its 
 duty to exercise reasonable care ;' whereas if the defect was 
 a danger suddenly arising in the way itself, the neglect to 
 exercise reasonable care to remedy it would be recognized 
 at once, as inexcusable. And it is probable that only 
 where the duty to perform the act which it is claimed 
 
 bonds or obligations, in excess of such 
 amount, given by such corporation, 
 shall be void.' 
 
 " The appellant contends that as it 
 had exhausted its available funds it 
 was excused, by reason of the above 
 constitutional provision, from repair- 
 ing the sidewalk upon which the ap- 
 pellee was injured. 
 
 . ..." In the case of Quill v. City of 
 Indianapolis, 124 Ind. 292, it was held 
 that under the provisions of the act of 
 March 8, 1889, upon the subject of 
 street improvements, bonds or certifi- 
 cates issued in pursuance of the pro- 
 visions of the act did not create an 
 indebtedness within the inhibition of 
 the constitutional provision we are 
 now considering, as they are payable 
 out of a fund accumulated from as- 
 
 to the assessment made for that pur- 
 pose. A municipal corporation, as 
 such, receives no benefit from the im- 
 provement or repair of its streets, but 
 the benefit is said to inure to owners 
 of lots abutting upon the street so 
 improved or repaired. 
 
 " An examination of the statutes 
 above referred to will disclose the fact 
 that cities in this State are clothed 
 with power to improve and keep in 
 repair their streets and alleys without 
 expense to the city, and where such 
 power exists we do not think it is a 
 defense, when sued for injuries occur- 
 ring by reason of its neglect to keep 
 the streets in repair, to say it had no 
 funds with which to pay for such re- 
 pairs. As the streets are improved 
 and kept in repair at the expense of 
 
§ 76 DUTIES RESPECTING STREETS AND ROADS. 1 43 
 
 was negligently omitted, clearly rests upon the corpora- 
 tion, will the courts hold it to responsibility where its 
 funds are actually exhausted. 
 
 § 76, Reasonable care varies with circumstances. — In 
 considering the care to be exercised by a city over its 
 streets, it must be remembered that a street is used 
 for many diverse purposes. The young, the old, the 
 lame, the blind, and all other pedestrians continually 
 cross it to go from one sidewalk to the other ; all kinds 
 of conveyances for the carrying of passengers and mer- 
 chandise, drawn often by spirited horses or propelled by 
 complex machinery, occupy its surface; while beneath 
 the ground pipes and wires needing frequent inspection 
 and repair crowd the space, and on either side of the 
 street the work of tearing down and building up goes 
 constantly on. These and many other similar considera- 
 tions show that there can be no rule which will define 
 the duty of a municipality in all cases, unless it be a rule 
 which is founded on these changing circumstances, and 
 which takes into account all the various calls made upon 
 the corporation for protection. The duty with respect 
 to one individual must be influenced by the duty with 
 respect to another, and in every case all that is required 
 of the municipality is that it shall exercise reasonable 
 care in view of the circumstances presented to it. The 
 care required from a city is not the same as the care 
 required from a village. But in each case reasonable 
 care only must be exercised. The customs and life pre- 
 vailing in each locality are looked to, and the safe or 
 dangerous character of the highway is determined with 
 reference to the ideas of propriety and security held there. 
 And a municipal corporation is only liable when it falls 
 short in doing that which it was reasonable to require it 
 to do, in view of the time and place of the injury. Many 
 cases have arisen, however, calling for decisions by the 
 
144 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § ^-j 
 
 courts upon the duty of municipalities, under special cir- 
 cumstances, and from these cases, principles showing in 
 what this reasonable care consists, and bearing upon similar 
 facts constantly presenting themselves, have been derived. 
 These principles are of general application, and as in most 
 respects the causes which under the statutes of the New 
 England States render highways defective are the same 
 as those that produce this result in localities where the 
 common law maintains, we shall find the authorities of 
 all the States considering the same questions in regard to 
 the condition of the way, and to a great extent losing 
 their local characteristics. 
 
 § 77. Entire width of city street to be safe for travel. — 
 The question has arisen whether a municipality is obliged 
 to keep the entire width of a street or road, or the trav- 
 eled portion only, in suitable condition for use. In a 
 city, town, or populous village there can be little differ- 
 ence of opinion as to the duty of the authorities in this 
 respect.^ The entire street is needed for use, and is 
 ordinarily utilized by the public, and it would be unrea- 
 sonable to require the corporation to select any portion 
 of the highway as deserving of particular care. The 
 whole street must be kept ready for use, because if any 
 portion is neglected there is probable danger that some 
 member of the public will be injured, and the authorities 
 should not expose individuals to this danger. But it is 
 
 1 <* T« *u„ -,1^ 1., u..:u .: • ] f„, - -ji-. ;_ i _ir — *«J l>„ 
 
n 
 
 DUTIES RESPECTING STREETS AND ROADS. 
 
 145 
 
 not to be concluded that even the streets of a city must 
 be kept free from every possible obstruction or danger.^ 
 Other considerations besides the safety of persons using 
 
 ' In Wellington v. Gregson, 31 Kas. 
 99 (1883), the lower court held as mat- 
 ter of law that a post put to protect a 
 tree, and within a foot or two of the 
 traveled track of a city street, was an 
 obstruction.but the Supreme Court re- 
 versed the decision, Brewer, J., saying: 
 
 " In the discharge of this duty, in 
 places it must keep the whole width 
 of the street in a safe condition for 
 travel. Bryant v. Biddlefield, 39 Me. 
 193. In other places it is sufficient 
 if it keep a traveled track in good re- 
 pair. Hull V. Richmond, 2 Woodb. & 
 M. 337 ; Ireland v. Plank Road Co., 
 13 N. Y. 526 ; Bassett v. St. Joseph, 53 
 Mo. 290; Brown v. Glasgow, 57 Id. 1 57. 
 
 " Whether in any given case the 
 public needs are such as to require 
 the whole width of the street to be 
 kept in safe condition is generally a 
 question of fact for the jury. In 2 
 Dillon, supra, % 1016, the rule is thus 
 laid down : 
 
 " ' Nor is a municipal corporation 
 bound to keep all of its streets and all 
 parts of the streets in good repair ; 
 but when it opens a street and invites 
 public travel, it must be made reason- 
 ably safe for such use ; but this does 
 not necessarily imply as a matter of 
 law that the whole width of the street 
 must be in good conditioii. 
 
 " ' Whether the street was wide 
 enough to be safe ; whether it was in 
 a reasonably safe condition for public 
 use by travelers who use ordinary 
 care to avoid injury, are almost always 
 questions for the jury.' See also 
 City of Wyandotte v. Gibson, 25 Kas. 
 236 ; Osage City v. Brown, 27 Id. 74 ; 
 MauUby v. City of Leavenworth, 28 
 Id. 745- 
 
 10 
 
 " It is a familiar fact that in all our 
 cities lot-owners are accustomed to 
 plant shade trees in front of their lots. 
 Many streets are thus rendered beau- 
 tiful by long rows on either side. 
 
 " Especially is this true in the resi- 
 dence portion of the city. 
 
 " Sometimes these trees are in the 
 sidewalk, but more often just outside 
 the sidewalk, in the street proper. 
 Often, especially when the trees are 
 young, they are inclosed with boxes 
 or railing, to prevent their injury by 
 straying cattle or passing teams. Can 
 it be that permitting these things is 
 per se negligence on the part of the 
 city ; that every time a buggy runs 
 against one of these trees or its pro- 
 tection, the city is liable for all in- 
 juries, unless the driver was also 
 negligent ? Cannot a party put a 
 hitching-post in front of his residence 
 without exposing the city to a charge 
 of negligence, unless he has placed it 
 more than a carriage-width from the 
 traveled track ? These questions carry 
 their own answer. The circumstances 
 of each case must determine whether 
 tree, or post, or any other thing that 
 a buggy may run upon or against, is 
 by reason of its proximity to the trav- 
 eled traq|f an obstruction, whose con- 
 tinuance brands the city with negli- 
 gence. The question is not whether 
 a city may grant permission to one to 
 occupy the streets with trees, railing, 
 and posts, but whether the city must 
 keep its streets and all its streets free 
 from all such objects, or be held al- 
 ways, as matter of law, guilty of neg- 
 ligence and liable for all injuries re- 
 sulting therefrom." 
 
146 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 78 
 
 the streets are to be taken into account, and travelers are 
 entitled to such protection only as is consistent with a 
 reasonable use of the streets by all.^ 
 
 § 78. Sufficient width for ordinary use to be open in 
 country. — But in discharging the duty of exercising rea- 
 sonable care to keep its streets and roads safe, a munici- 
 pal corporation is not required to keep the whole width 
 of a country road in a condition fit for travel. If rea- 
 sonable care is exercised to keep a traveled track, suffi- 
 cient to answer the needs of the public, safe for ordinary 
 use, the duty will be performed.^ But on the other hand. 
 
 1 Infra, §§79, 91. 
 
 2 In Monongahela City v. Fisher, 
 III Pa. 9, 13 Am. & Eng. C. C. 431 
 {1886), it is said : " Country roads are 
 seldom, if ever, Icept in repair from 
 side to side. A sufficient portion of 
 the middle only is kept in smooth 
 condition and safe and convenient for 
 travel. The rest is often left danger- 
 ous by reason of ditches and obstruc- 
 tions of various kinds." See Scran- 
 ton V. Hill, 102 Pa. 378. In Perkins 
 V. Inhabitants of Fayette, 68 Me. 152 
 (1878), it was held that it was "not 
 necessary for towns to render the 
 road passable for the entire width of 
 the whole located limits, and that the 
 duty of the town is accomplished by 
 making a sufficient width of the road 
 in a smooth condition so that it would 
 be safe and convenient for d&velers," 
 
 such casualties as might reasonably 
 be expected to happen to travelers. 
 All possible accidents cannot be pro- 
 vided against by anybody." 
 
 In Potter v. Castleton, 53 Vt. 435 
 (1881), it was said : "It is now well- 
 settled law in this State that no action 
 can be maintained against a town for 
 injuries received outside the traveled 
 track of a highway if the traveler 
 goes upon the margin by his own 
 fault. Rice v. Montpelier, 19 Vt.470, 
 is a representative and leading case 
 upon the subject. It is also well set- 
 tled that if the margin has been 
 worked into road or been made road, 
 designed for travel by long use, the 
 traveler who receives injury thereon 
 without his own fault may recover 
 damages. Whitney v. Essex, 42 Vt. 
 520, and Ozier v. Hinesburgh, 44 Vt, 
 
■§ 78 DUTIES RESPECTING STREETS AND ROADS. 1 47 
 
 the municipality should not allow obstructions or excava- 
 tions to adjoin a traveled way which will render its use 
 unsafe and dangerous. Whether in any particular local- 
 ity a traveled way only was necessary, and whether the 
 condition of the roadway outside the traveled track was 
 such as to render the road itself unsafe, would be for 
 the jury to decide upon a consideration of all the cir- 
 cumstances surrounding the case. And the expense of 
 doing what it is claimed should have been done, is an 
 important element in determining what is "reasonably 
 practicable."^ 
 
 If, however, the whole width of a country road is 
 opened for travel, then it is the duty of the corporation 
 in control to keep the entire way in a suitable condition 
 for use.' 
 
 Belmon, 58 Wis. 370 (1883). (Com- seph's, 53 Mo. 290; Willey v. Ports- 
 pare Klatt V. Milwaukee, 53 Wis. mouth, 35 N. H. 304 (1857) ; Durant 
 196; Mathews v. Baraboo, 39 Wis. v. Palmer, 29 N.J. L. 544; Kellogg 
 674; Cremer v. Portland, 36 Wis. v. Northampton, 70 Mass. 65 (1855); 
 92) ; Kelley v. Columbus, 41 Ohio Elliott on Roads and Streets, p. 455. 
 St. 263 (1884) ; FuUiam v. Muscatine, For duty in regard to the removal 
 70 la. 436 (1886) ; Stafford v. Oska- of snow and ice, see infra, §§ 98-105. 
 loosa, 57 la. 748 (1884); Keyes v. ' Rooney v. Randolph, 128 Mass. 
 Marcellus, 50 Mich. 439, 15 N. W. 580. 
 
 Rep. 542 (1883) ; Brown v. Glasgow, * Aston v. Newton, 134 Mass. 507 
 
 57 Mo. 157 (1874); Craig v. Sedalia, (1883) ; Stafford v. Oskaloosa, 57 la. 
 
 «3 Mo. 417 (1876) ; Bassett v. St. Jo- 748 (1882). 
 
CHAPTER X. 
 
 DUTIES RESPECTING STREETS AND ROADS, CONTINUED. 
 
 § 79. Permissible obstructions in highways. 
 
 80. Unnecessary and dangerous obstructions. 
 
 81. Holes and excavations. 
 
 82. Smooth iron covers. 
 
 83. Excavations and embankments adjoining street. 
 
 84. Objects frightening horses. 
 
 85. Obligation to light streets. 
 
 86. Dangers arising from granting licenses. 
 
 87. Charter exemptions from liability. 
 
 § 79. Permissible obstructions in highways. — It is not 
 every obstruction in a street or road that renders it un- 
 safe in law. In the city by the repaying of streets, the 
 erection of buildings, and the laying of car-tracks, cables, 
 and pipes, and the loading and unloading of merchandise, 
 many necessary obstructions to travel are caused, and 
 those who use the streets must accommodate themselves 
 to the rights of others and the needs of the public.^ Nec- 
 essary work of the character described must, however, be 
 carried on with care and dispatch, and the municipal au- 
 
 thnritipc: mn<;t ct'wtp f-Vif> nnhlir- rpacnnoKlf* t-imfprtinn^ 
 
§ 79 DUTIES RESPECTING STREETS AND ROADS. I49 
 
 both by day and by night,* from obstructions caused by it. 
 And the fact that the persons permitted to do the work 
 agreed to protect the pubHc from danger, will not relieve 
 the corporation from liability if in fact no warning is 
 given. ^ 
 
 There are also some objects, such as hydrants,^ hitch- 
 
 edge of it. Its duty was to keep the 
 streets In a safe condition for public 
 travel, and it was bound to exercise 
 reasonable diligence to accomplish 
 that end, and the rule is now well es- 
 tablished to be applicable whether the 
 act or omission complained of and 
 causing the injury is that of the munic- 
 ipal corporation or some third party. 
 Nelson v.Vil. of Canisteo, 100 N.Y. 89. 
 
 " Where public or private improve- 
 ments are being made in a street, it is 
 the duty of the city to guard and pro- 
 tect them so as to protect travelers on 
 the street from receiving injury there- 
 from. Turner v. City of Newburgh, 
 109 N. Y. 301. And if necessary to 
 prevent accidents, it should, by some 
 barrier, close the street against the 
 public so that no harm may happen if 
 the work on the street is delayed. Rus- 
 sell V. Vil. of Canastota, 98 N. Y. 496. 
 
 "A person using a public street 
 has no reason to apprehend danger, 
 and is not required to be vigilant to 
 discover dangerous obstructions, but 
 he may walk or drive in the daytime 
 or night-time, relying upon the as- 
 sumption that the corporation whose 
 duty it is to keep the streets in a safe 
 condition for travel have performed 
 that duty, and that he is exposed to 
 no danger from its neglect. 
 
 "Although the street where this 
 accident happened had been in a dan- 
 gerous condition for weeks, the proof 
 does not show the slightest effort on 
 the part of the city to warn travelers 
 of its condition. It appeared to have 
 relied upon the contractor to maintain 
 
 the warning lights at the excavation, 
 which, under his contract, he was 
 bound to do. But the city was not 
 absolved from its liability by this pro- 
 vision of the contract." 
 
 See Jennings v. Van Schaick, 108 
 N. Y. 530. 
 
 ' Bauer v. Rochester, 35 N. Y. St. 
 Rep. 959 (1891) ; Orme v. Richmond, 
 79Va.86; Halpin v.Kansas City,76 Mo. 
 335 (1882) ; Wilson v. White, 71 Ga. 
 506, 51 Am. Rep. 269 (1883) ; Zettler 
 V. Atlanta, 66 Ga. 195 ; Drew v. Sut- 
 ton, 55 Vt. 586; Plymouth Tp. v. 
 Graver, 125 Pa. 24 (1889); Burrell 
 Tp. v. Uncapher, 117 Pa. 353; Olsen 
 v. Chippewa Falls, 71 Wis. 558 
 (1888). 
 
 2 Cleveland v. King, 132 U. S. 295 
 (1889) ; Farquar v. Roseburg, 18 Ore. 
 271, 17 Am. St. Rep. 732 (1890); 
 McAllister v. Albany, 18 Ore. 426 
 (1890) ; Boucher v. New Haven, 40 
 Conn. 457 (1873). 
 
 " In Ring v. Cohoes, 77 N. Y. 83 
 (1879), Earl, J., says: "A hydrant 
 answers a useful and necessary pur- 
 pose, and it is required to be placed 
 somewhere in the street ; and when 
 the public authorities determine to 
 place one in the curb, it cannot be 
 said that they have done a negligent 
 act. If so, it would be negligent to 
 permit awning or hitching posts to be 
 placed, or trees to grow on the edge 
 of a sidewalk, extending partly, as 
 they frequently do, into the gutter. 
 It is true, that in a city the whole 
 roadway must generally be kept suit- 
 able for travel." 
 
150 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 80 
 
 ing-posts,^ stepping-stones,* and doorsteps,^ which are 
 placed intentionally upon streets either for the conven- 
 ience of the public or the improvement of the locality, 
 and which are held not to render the way unsafe. Hitch- 
 ing-posts, whether placed near the edge of the sidewalk 
 or beside the traveled way, as they frequently are in the 
 country, do not by themselves render the way unsafe, al- 
 though the facts of a case might show that an object of 
 this character was, in view of the circumstances presented, 
 an improper obstruction. The decision of a question of 
 this kind depends upon whether the presence of the ob- 
 ject interferes with the reasonably free and safe enjoy- 
 ment of the way by the public, and if it does not there is 
 no reason for considering it an obstruction.* And it has 
 been held that if a post is in the traveled way, or near 
 enough to it to make travel thereon dangerous, it is an 
 obstruction which will impose liability for injuries oc- 
 casioned by it ; ^ but if it is a reasonable distance away 
 from the roadway, its presence will not make the corpo- 
 ration liable for an accident resulting from it.^ 
 
 § 80. Unnecessary and dangerous obstructions.— But 
 there are many objects in streets which are both unneces- 
 sary and dangerous, and which the corporate authorities 
 should not allow to remain there. Such objects prevent 
 the safe and convenient use of the public highways, and if 
 the corporation is guilty of negligence either in causing^ 
 them to be in the streets or in failincr fn remnve them, it 
 
§ 80 DUTIES RESPECTING STREETS AND ROADS. 151 
 
 occasion.^ Thus recently, where, in cleaning the streets 
 of a city, mud was piled in the center of a street and 
 allowed to freeze and remain a week, and one who was 
 driving on the street was forced upon the mound, thrown 
 from his wagon and dangerously injured, the city was 
 held responsible in damages,* A city has also been held 
 to be negligent in allowing a track to be laid in a plank- 
 covered street with rails projecting four inches above the 
 level.^ And where a license was given by a city permit- 
 ting a wagon to stand upon a street in front of a place of 
 business, and one using the street was injured by reason 
 of its presence there, the Court of Appeals in New York, 
 reversing the judgment of the court below, held the city 
 
 ' It is the duty of a city to "keep 
 all its streets, sidewalks, and cross- 
 ings in a reasonably safe condition, 
 and free from unnecessary and danger- 
 ous obstructions so as not to endanger 
 the persons of those lawfully using the 
 same." Glantz v. South Bend, 106 
 Ind. 305. See Dalton v. Albion, 50 
 Mich. 129; Ponca v. Crawford, 23 
 Neb. 662, 8 Am. St. Rep. 144, note ; 
 Goodfellow V. New York, 100 N. Y. 
 15 (1885); Belvin v. Richmond, 85 
 Va. 574 (1888) ; Schroth v. Prescott, 
 63 Wis. 652 (1885); Eubank v. Edina 
 (Mo.), 4 West. Rep. 626 (1886); 
 Young Tp. V. Sutter, 18 Atl. Rep. 610 
 (1889). 
 
 ^ Champaign v. Jones, 132 111. 304 
 (1890). Cf. Gallagher v. St. Paul, 28 
 Fed. Rep. 305 (1886); Stafford v. 
 Oskaloosa, 64 la. 251 (1884). So 
 where a pile of stones was negligent- 
 ly allowed to remain on a street the 
 city was held liable for damages oc- 
 casioned by its presence. Wilson v. 
 Spafford, 32 N. Y. St. Rep. 532 (1890); 
 Bauer V. Rochester, 35 N. Y. St. Rep. 
 959 (1891); Ring V. Cohoes, 77 N.Y. 83 
 (1879). Where a dangerously placed 
 
 hydrant caused damage to another 
 the city was held responsible. King 
 V. Oshkosh, 75 Wis. 517, 44 N. W. 
 Rep. 745 (1890); Adams v. Oshkosh, 
 71 Wis. 49. See also Mulcairns v. 
 Janesville, 67 Wis. 24 ; Chase v. Low- 
 ell, 151 Mass. 422 (1890), dangerous 
 tree ; Foreman v. Canterbury, L. R. 6 
 Q. B. 214; New York v. Sheffield, 4 
 Wall. 189 (1866) ; a stump of a tree 
 left in City Hall Park for ten years, 
 Wolfe V. Tel. & Tel. Co., 33 Fed. Rep. 
 320 (1887). 
 
 8 Michigan City v. Boeckling, 122 
 Ind. 39, 23 N. E. Rep. 518 (1890). 
 See Hawks v. Northampton, 116 
 Mass. 420 (1875) ; Cline v. Crescent 
 City Railroad Co., 41 La. Ann. 1031, 
 6 So. Rep. 851 (1889). A municipal 
 corporation is liable for damages oc- 
 casioned by a projecting water-plug 
 in one of its streets, although owned 
 by the water company. Scranton v. 
 Catterson, 94 Pa. 202 ; Indianapolis 
 V. Cook, 99 Ind. 10 (1884) ; Kent v. 
 Worthington Local Board, L. R. 10 
 Q. B. D. 118 (1882). Compare Wil- 
 kins V. Rutland, 61 Vt. 336 (1889); 
 Grimes v. Keene, 52 N. H. 335. 
 
152 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 80 
 
 responsible for the damage occasioned, on the ground 
 that it was negligence in the city to allow the wagon to 
 be on the street.^ It is not material whether the obstruc- 
 
 ■ In Cohens/ al. v. New York, 113 
 N. Y. 532 (1889), Peckham, J., says: 
 " The storing of the wagon in the 
 highway was a nuisance. The pri- 
 mary use of a highway is for the pur- 
 pose of permitting the passing and 
 repassing of the public, and it is en- 
 titled to the unobstructed and unin- 
 terrupted use of the entire width of 
 the highway for that purpose, under 
 temporary exceptions as to deposits 
 for building purposes, and to load and 
 unload wagons, and receive and take 
 away property for or in the interest of 
 the owner of the adjoining premises, 
 which it is not now necessary to more 
 specifically enumerate. The extent of 
 the right of such exceptional user was 
 before us in the case of Callanan v. 
 Gilman, 107 N. Y. 360, and nothing 
 more need be said regarding it here. 
 
 " It is no answer to the charge of 
 nuisance that, even with the obstruc- 
 tion in the highway, there is still room 
 for two or more wagons to pass, nor 
 that the obstruction itself is not a fix- 
 ture. If it be permanently, or even 
 habitually, in the highway, it is a nui- 
 sance. The highway may be a con- 
 venient place for the owner of car- 
 riages to keep them in ; but the law, 
 looking to the convenience of the 
 
 V. Cross, 3 Camp. 224 ; Rex v. Jones, 
 Id. 230 ; People v. Cunningham, i 
 Denio 524; Davis v. Mayor, etc., N. 
 Y. 506, 524 ; Callanan v. Gilman, 
 supra 
 
 " The legislature has expressly en- 
 acted that the city shall have no 
 power to authorize the placing or 
 continuing of any encroachments or 
 obstructions upon any street or side- 
 walk, except the temporary occupa- 
 tion thereof during the erection or 
 repair of a building on a lot opposite 
 the highway. Consolidation Act, § 86, 
 subd. 4, pp. 25, 26; People ex rel, 
 O'Reilly v. Mayor, etc., 59 How. Pr. 
 277 ; Ely, Mayor, etc. v. Campbell, 
 Comr., etc.. Id. 333 ; Lavery v. Han- 
 nigan, 20 J. & S. 463 
 
 " But assuming that the city had no 
 right to issue the permit, it is urged 
 that such license did not authorize 
 the negligence which caused Cohen's 
 death, and that the act of the defend- 
 ant was too remote to be regarded as 
 the proximate cause of the damage 
 herein. We do not think so. The 
 act of the defendant was wrongful ; it 
 consisted in setting up an obstruction 
 in the public highway, and the acci- 
 dent happened because of the pres- 
 ence of the obstruction at the point in 
 
§8i 
 
 DUTIES RESPECTING STREETS AND ROADS. 
 
 153 
 
 tion be large ^ or small/ or whether it is on the surface of 
 the Street or above it,^ if by its presence the way is ren- 
 dered unsafe ; the corporation is responsible for the dam- 
 ages caused by it as soon as negligence can be attributed 
 to the corporate authorities.* 
 
 § 81. Holes and excavations. — A highway is not safe for 
 
 tions in a public highway, and any 
 person who wrongfully places them 
 there or aids in so doing, must be 
 held responsible for such accidents as 
 occur by reason of their presence. 
 The obstruction in such case must 
 be regarded within the meaning of 
 the law on the subject, as the proxi- 
 mate cause of the damage 
 
 " We do not say that this principle 
 of responsibility would render the city 
 liable in every case of a mistaken ex- 
 ercise of power authorizing the use or 
 occupancy of a public street by an in- 
 dividual We confine ourselves to the 
 decision of this case, and we simply 
 say that when the city, without the 
 pretense of authority, and in direct 
 violation of a statute, assumes to grant 
 to a private individual the right to 
 obstruct the public highway while in 
 the transaction of his private business, 
 and for such privilege takes compensa- 
 tion, it must be regarded as itself 
 maintaining a nuisance so long as the 
 obstruction is continued by reason of 
 and under such license, and it must 
 be liable for all damage which may 
 naturally result to a third party who 
 is injured in his person or his property 
 by reason or in consequence of the 
 placing of such obstruction in the 
 highway.'' 
 
 " See n. 2, p. 151. In Whitney v. 
 Ticonderoga, 37 N. Y. St. Rep. 135, 
 27 N. E. Rep. 403 (1891), a town was 
 held responsible for the damages re- 
 sulting from the presence of a road- 
 scraper in the street. See infra, % 84. 
 
 But a horse and sleigh standing in a 
 street for some minutes will not con- 
 stitute a defect in the way. Sikes v. 
 Manchester, 59 la. 65 (1882). See 
 Cairncross v. Pewaukee (Wis.), 10 L. 
 R. A. 473 (1890). 
 
 ' It was held in McCool v. Grand 
 Rapids, 58 Mich. 41 (1885), that a 
 loose cobble-stone, in the daytime, 
 was not a defect which would make a 
 city liable, as an injury could not be 
 occasioned by it without contributory 
 negligence. 
 
 " In Hayes v. Hyde Park (Mass.), 
 12 L. R. A. 249, 27 N. E. Rep. 522 
 (1891), a town was held responsible 
 for the damages occasioned by a wire 
 across a highway which interfered 
 with its safe use. See Simon v. At- 
 lanta, 67 Ga. 618 (1 88 1); Belvin v. 
 Richmond, 85 Va. 574 (1888); Nor- 
 ristown v. Moyer, 67 Pa. 365 ; Grove 
 V. Fort Wayne, 45 Ind. 429; Brady 
 V. Reg., 2 Can. Exch. 273 ; Lawyer's 
 Genl. Dig., Bk. 7, p. 392. 
 
 * But leaving a large stone for a few 
 days in a gutter until it can be re- 
 moved is not negligence. Agnew v. 
 Carunna, 55 Mich. 428 (1885). See 
 Farrell v. Oldtown, 69 Me. 72 ; Johns- 
 ton v. Philadelphia, 139 Pa. 646(1891); 
 Baker v. Madison, 56 Wis. 374 (1882;; 
 King V. Thompson, 87 Pa. 369. No- 
 tice is essential, Mattimore v. Erie 
 (Pa.), 22 Atl. Rep. 817, 26. W. N. C. 
 106 (1891). Infra, Chap. XX. As 
 to defects which frighten horses, see 
 infra. Chap. XXII. 
 
154 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § 8l 
 
 ordinary use when it contains unguarded holes or exca- 
 vations. And if these are caused by the acts of the city, 
 or in any other way, and continue to exist an unreason- 
 able length of time, the corporation in charge of the 
 street will be responsible for injuries coming from them.^ 
 That a ditch or excavation has been made by a third per- 
 son is no defense to the liability of the city.* Many au- 
 
 ' Barr v. Kansas City, 105 Mo. 550, 
 16 S. W. Rep. 483 (1 891), neglect of 
 city officials to replate a sewer-cover ; 
 Brennan v. St. Louis, 7 West. Rep. 
 148 (1886), recovery by child for in- 
 juries from falling into a ditch in the 
 street ; Bassett v. St. Joseph, 53 Mo. 
 290 ; Hull V. Kansas City, 54 Mo. 598 ; 
 Hopkins v. Ogden City, 5 Utah 390, 
 16 Pac. Rep. 596, hole from breaking 
 of water-pipe ; Wilson v. Troy, 38 N. 
 Y. S. Rep. 382, 14 N. Y. Supp. 721 
 (1891), excavation made by water 
 commissioners, at the request of con- 
 tractors, to introduce water to a 
 house; Crowther v. Yonkers, 15 N. 
 Y. Supp. 588(1891), unguarded sewer 
 trench, accident at night. Compare 
 McAllister v. Albany, 18 Ore. 426 
 (1890) ; Bennett v. Sing Sing, 38 N. 
 Y. S. Rep. 347, 14 N. Y. Supp. 463, 
 steep descent from sidewalk to street, 
 with projecting sharp pieces of rock ; 
 O 'Gorman v. Morris, 26 Minn. 267 
 (1879), open culvert across street ; 
 Skinner V. Morgan, 21 111. App. 209; 
 
 of negligence of the town. See Bab- 
 bage V. Powers, N.Y. Ct. App. 45, Alb. 
 L.J. 156 (1891); State V. Thomaston, 
 74 Me. 198, horse falling through a 
 box-sewer. See also Wilkins v. Rut- 
 land, 61 Vt. 338 (1889) ; Grimes v. 
 Keen;, 52 N. H. 335 (1872) ; Post v. 
 Boston, 141 Mass. 189(1886) ; Galvin 
 v. New York, 112 N. Y. 223 (1889); 
 Cline V. Crescent City R.Co. and New 
 Orleans, 41 La. Ann. 1031, 6 So. Rep. 
 851 (1889); Wahoo V. Reeder, 27 Neb. 
 770 (1889) ; McAvoy v. New York, 
 54 How. Pr. 245 (1877); Brusso 
 v. Buffalo, 9 N. Y. 679 ; Minick v. 
 Troy, 83 N. Y. 514 (1881) ; Chicago 
 V. Robbins, 2 Black 418; Ray v. St. 
 Paul, 40 Minn. 458. 
 
 ^ Savannah v. Donnelly, 71 Ga.25& 
 (1883), ditch dug by individual to con- 
 nect with water-mains, city liable ; 
 Hutson V. New York, 5 Sandf. 289 (?), 
 rev'd 9 N. Y. 163, hole in street left by 
 railroad company, city liable ; Storrs 
 V. Utica, 17 N. Y. 104, 72 Am. Dec. 
 441 ; Fink v. St. Louis, 71 Mo. 52, 
 
§ 82 DUTIES RESPECTING STREETS AND ROADS. 1 55 
 
 thorities are given in the notes, illustrating the various 
 phases of the duty to keep the street free from dangerous 
 holes, and it will be found that every case depends largely 
 on its own facts, and that in them all the obligation of 
 the corporation to exercise reasonable care to protect the 
 public from unexpected danger of this character is fully 
 recognized.^ During all necessary excavations in the 
 streets, the corporation must see to it that the excava- 
 tions are properly guarded and lighted at night.* Where 
 there is a subsidence of the way, or a hole from the 
 breaking of a pipe, and, indeed, in every case where a 
 defect exists, a neglect of duty by the corporation must 
 be established.* 
 
 § 82. Slippery objects in streets. — Some interesting 
 cases have arisen in regard to the duty of a municipal 
 corporation to keep its ways free from dangerous slip- 
 pery objects, and it is held that care must be taken to 
 
 ner, 100 Ind. 396 ; McAllister v. Al- 17 (i886) ; Post v. Boston, 141 Mass. 
 
 bany, 18 Ore. 426 (1890), negligence 189. 
 
 of contractor ; Klatt V. Milwaukee, S3 ^ Supra, ^ 8$- Blessington v. Bos- 
 
 Wis. 196; Mayor v.McCary, 84 Ala. ton, 26 N. E. Rep. 113 (1891), 
 
 470, 4 So. Rep. 630 ; Circleville v. here the city was held liable for the 
 
 Neuding, 41 Ohio St. 465 ; Chamber- momentary neglect of an employee of 
 
 lain V. Enfield, 43 N. H. 356 ; a railway company to replace barriers 
 
 Susquehanna v. Simmons, 112 Pa. which he was removing every few 
 
 384. minutes to allow street-cars to pass. 
 
 ' Dillon on Munic. Corp., §§ 1027- See Wilson v. Troy, 38 N. Y. St. Rep. 
 
 1029; Witham v. Portland, 72 Me. 382, 14 N. Y.Supp. 721 (1891) ; Rus- 
 
 359 (i88i), a mere depression in the sell v. Canastota, 98 N. Y. 496 (1885) ; 
 
 way is not a defect. See Baker v. Prentiss v. Boston, 112 Mass. 43; 
 
 Madison, 56 Wis. 374 (1882). In Sut- Sparhawk v. Salem, 79 Am. Dec. 702, 
 
 terv. Young Tp., 130 Pa. 72(1889), a note; Klatt v. Milwaukee, 53 Wis. 
 
 rut twelve to fourteen inches deep 196 ; Halpin v. Kansas City, 76 Mo. 
 
 and a rod long held a defect. See 335 (1882); Beardsley v. Hartford, 50 
 
 Plymouth Tp. v. Graver, 125 Pa. 24. Conn. 529, 47 Am. Rep. 677- 
 
 Causes likely to produce injury must ' Rochefort v. Attleborough, 27 N. 
 
 be guarded against by the corpora- E. Rep. 1013 (1891) ; McGaffigan v. 
 
 tion. Flanders v. Norwood, 141 Mass. Boston, 149 Mass. 289, 21 N. E. Rep. 
 
 371. 
 
156 MUNICIPAL DUTIES; — GOVERNMENTAL AFFAIRS. § 83 
 
 avoid accidents from objects of this character.^ This 
 principle, as will be seen hereafter, has been applied to 
 the removal of ice from sidewalks;* but a distinction has 
 been made between the case of a defect produced by nat- 
 ural causes, and one produced by the wearing away of 
 metal from use. It is not clear that this distinction 
 should make any difference in the liability of the cor- 
 poration, for in each case reasonable care should be exer- 
 cised to keep the way safe, but in some localities there is 
 held to be no liability where the defect is simply smooth 
 ice.^ The duty to make reasonable inspection of objects 
 that are placed in a highway, and that are likely to become 
 out of repair, has been frequently recognized and en- 
 forced by the courts.* 
 
 § 83. Excavations and embankments adjoining streets. — 
 Many cases have arisen with regard to the duty of a 
 municipality to protect horses and vehicles from danger 
 by reason of excavations, declivities, or embankments 
 adjoining the street. Whether in any particular place 
 an excavation or embankment renders the street or road 
 unsafe for use depends largely upon its proximity to the 
 edge of the street.^ Where the declivity adjoins the 
 
 ' Blackmore v. Mile End, L. R. 9 ' In Barnes v. Chicopee, 138 Mass. 
 
 Q. B. D. 451 (1882); Cromarty v. 67, 57 Am. R. 259 (1884), Devens, J., 
 
 Boston, 127 Mass. 329, 34 Am. Rep. says: "The test is 'whether there is 
 
 381. See Chicago v. McGiven, 78 such a risk of a traveler, using, ordi- 
 
 111. 347 (1875). nary care, in passing along the street, 
 
§ 83 DUTIES RESPECTING STREETS AND ROADS. 1 57 
 
 traveled way there can be little doubt of the duty of the 
 corporation to erect barriers;* but where, on the other 
 
 from straying from the highway, al- 
 though there is a dangerous place, at 
 some distance from the highway, 
 which they may reach by so stray- 
 ing.' Puffer V. Orange, 122 Mass. 
 389. In determining whether a de- 
 fect is in such close proximity to the 
 highway as to render traveling upon 
 it unsafe, that proximity must be con- 
 sidered with reference to the highway 
 as traveled and used for the public 
 travel, rather than as located. War- 
 ner V. Holyoke, 1 12 Mass. 362. While 
 it may be impossible io define at what 
 distance in feet and inches a danger- 
 ous place must be from the highway 
 in order to cease to be in close prox- 
 imity to it, and while it must often be 
 a practical question, having regard to 
 many circumstances to be decided by 
 a jury, yet it has been held in certain 
 cases, as matter of law, that a jury 
 was not authorized in finding that 
 the dangerous place was in such prox- 
 imity to the highway as to render 
 traveling thereon unsafe." 
 
 In Drew v. Sutton, 55 Vt. 586, 45 
 Am. Rep. 644 (1882), the court said: 
 " We think it was a question of fact 
 
 for the jury to find, under all the cir- 
 cumstances, whether the road was 
 sufficient or not. It is conceded that 
 this is the general rule when the de- 
 fect complained of is within the lim- 
 its of the way, but contended that 
 when no such defect exists, towns are 
 not legally bound to guard the trav- 
 eler from receiving injury beyond the 
 limits by reason of steep banks, prec- 
 ipices, and the like, although in dan- 
 gerous proximity to the way. Many 
 things may constitute insufficiencies 
 in highways ; and the lack of railings 
 or other muniments, when necessary 
 to the safety of the traveler, is a very 
 frequent defect. It was the duty of 
 towns to keep their roads in a reason- 
 able state of repair, not only in their 
 'surface and margins,' but in their 
 ' muniments ' as well. Glidden v. 
 Reading, 38 Vt. 52. Besides, they 
 were bound to construct and main- 
 tain their roads reasonably sufficient 
 with reference to such accidents as 
 might be expected occasionally to oc- 
 cur upon them. Lindsey v. Danville, 
 45 Vt. 72. It was further their duty 
 to keep their roads reasonably safe 
 
 ' In Ivory v. Deerpark, 116 N. Y. 
 476 (1889), Bradley, J., says : " If the 
 situation was such as to render the 
 travel upon the road, at the place in 
 question, dangerous, and such danger 
 was within reasonable apprehension, 
 the duty was with the commissioners 
 to use the means available to them, for 
 the purpose, to guard against the haz- 
 ards to which the traveler was ex- 
 ' posed. The question upon the trial, 
 therefore, was whether the excavation 
 was so near the wrought portion of 
 the road as to render it dangerous to 
 
 the public travel, in view of the situa- 
 tion there. Jewhurst v. Syracuse, 108 
 N. Y. 303. It is presumable that 
 people may travel on the highways in 
 the night-time when the beaten path 
 is obscured from view. At the place 
 in question there seems to have been 
 nothing to indicate, in the darkness, 
 the curvature of the road, or to render 
 the driver of a team sensible of the 
 departure from it before reaching the 
 place of danger. There is no com- 
 plaint that the sixteen-feet track was 
 not adequate width for travel. The 
 
158 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §83 
 
 hand, there is substantial protection in the distance of the 
 danger, there is no liability for a failure to erect bar- 
 
 for travel by night as well as by day ; 
 and the public had a right to presume 
 that they were so. Pierpoint, C. J., 
 in Bagley v. Ludlow, 41 Vt. 434. If 
 a railing is lacking where one is nec- 
 essary to the safety of travelers, the 
 traveled way itself is thereby rendered 
 unsafe and out of repair. And it 
 makes no difference whether this ne- 
 cessity for a railing is created by the 
 condition of things within the limits 
 of the way or without the limits, but 
 in dangerous proximity to the way. 
 In either case the question is. Does 
 the safety of the traveler require a 
 railing? Is the road reasonably safe 
 and sufficient without one? In this 
 case the insufficiency complained of 
 is the lack of a railing or other muni- 
 ment to guard against the steep bank 
 that came within about six inches of 
 the westerly limit of the highway, the 
 surface of the ground at this point 
 being smooth and level to the very 
 brink, not affording even the obstruc- 
 tion of a ditch or a rough margin to 
 warn the traveler that he is out of the 
 road. 
 
 " This is in no just sense a case of 
 voluntary departure nor of straying 
 from the way, like many of the cases 
 relied upon by the defendant, and the 
 law of those cases is not applicable. 
 It cannot be said, as argued, that the 
 plaintiff 'intended the act he did, 
 though he did not intend the con- 
 sequences.' He intended neither. 
 The case affords no warrant for 
 saying that he did. By reason of the 
 darkness he could not see where he 
 was going, and accidentally drove off 
 the bank 
 
 " But we do not wish to be under- 
 stood as sanctioning the doctrine that 
 towns were bound to erect railings 
 merely to keep travelers from stray- 
 ing out of the highway, where there 
 was no unsafe place in dangerous 
 proximity thereto. On the contrary, 
 we would require the party to show 
 that the defect that caused the injury 
 existed either in the highway or so 
 contiguous thereto as to make it dan- 
 gerous to travel on the highway it- 
 self." 
 
 wrought portion of highways in rural 
 sections usually embraces but a por- 
 tion of the width within their limits. 
 The commissioners are required to 
 
 against danger persons traveling upon 
 the road at this place, and the fact 
 that the exposed condition had con- 
 tinued there for upwards of ten years 
 
§ 83 DUTIES RESPECTING STREETS AND ROADS. 1 59 
 
 riers.^ Where a highway was so narrow that teams could 
 not pass between an embankment and a fence, the town 
 was held liable for the damages resulting from a col- 
 lision.^ A distinction is to be noticed between the liabil- 
 
 in such event they were chargeable 
 with negligence. 
 
 " In the cases of Hubbell v. City of 
 Yonkers, 104 N. Y. 434, and Monk 
 V. Town of New Utrecht, Id. 552, the 
 streets upon embankments were broad, 
 and at the boundaries were gutters, 
 curb-stones, and elevated sidewalks. 
 Thus guarded, there was no occasion 
 for apprehension that travelers, under 
 any ordinary circumstances, would get 
 out of the streets and over embank- 
 ments. 
 
 " In the present case there seems 
 to have been no surface change, or any 
 interruption to warn the driver of the 
 passage of his team or wagon from 
 the beaten pathway, until he went over 
 the adjacent embankment." 
 
 See further, Glasier v. Hebron, 16 
 N. Y. Supp. 503 (1891); Damon v. 
 Boston, 149 Mass. 147 (1889); Hig- 
 gins V. Boston, 148 Mass. 484 (1889); 
 Woods V. Groton, iii Mass. 357 
 (1873); Elliott on Roads and Streets, 
 pp. 452-3. 
 
 ■ In Hudson v. Marlborough (Mass.), 
 28 N. E. Rep. 147 (1 891), Morton, J., 
 says : " The ruling that, if the place 
 where the accident occurred was 
 twenty-five feet from the Hudson 
 road, the town would not be liable, 
 was clearly correct. In such a case 
 as that, the place where the accident 
 occurred would not, as matter of law, 
 be in such immediate proximity to the 
 road as to require the town to put up 
 a railing in order to make the road 
 safe and convenient for travelers. 
 Murphy v. Gloucester, 105 Mass. 47° '• 
 Warner V. Holyoke, 112 Mass. 362; 
 Puffer V. Orange, 122 Mass. 389; 
 Daily v. Worcester, 131 Mass. 452; 
 
 Barnes v. Chicopee, 138 Mass. 67. 
 Exceptions overruled." 
 
 In Hubbell v. Yonkers, 104 N. Y. 
 434, 10 N. E. Rep. 858 (1887), Peck- 
 ham, J., said : " Here was a roadway 
 in first-rate condition for its entire 
 width (thirty feet), and bounded on 
 each side by a curb eight inches in 
 height, and then separated from this 
 western embankment by ten feet more 
 of sidewalk. Can it be fairly main- 
 tained that there was any lack of that 
 vigilance demanded from a city in 
 failing to fence this embankment 
 from horses traveling on the road, 
 which should at that particular spot 
 become frightened and unmanage- 
 able, and should then rush over the 
 curbstone and across the sidewalk 
 and jump down this embankment ? 
 We think not," citing, Dongan v. 
 Transportation Co., 56 N. Y. i ; Cleve- 
 land V. Steamboat Co., 68 N. Y. 306 ; 
 Loftus V. Ferry Co., 84 N. Y. 455; 
 Manchester v. Ericsson, 105 U. S. 
 347 (1881); Dailey v. Worcester, 131 
 Mass. 452; Puffer v. Orange, 122 
 Mass. 389 ; Murphy v. Gloucester, 
 105 Mass. 470. 
 
 « Foffer v. Wheatland, 59 Wis. 623. 
 In Flagg v. Hudson, 142 Mass. 280 
 (1886), it was held that a person exer- 
 cising due care, who is driving along 
 a narrow highway, turns his horse to 
 the left to avoid going down an un- 
 guarded embankment on the right, 
 and comes into collision with a car- 
 riage in its proper part of the road 
 and approaching from the opposite 
 direction, and is injured, he may re- 
 cover for the defect in the highway — 
 this is the sole cause of the injury. 
 
l6o MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 84 
 
 ity of a city to one who attempts to use a private way 
 adjoining the street and the duty to a member of the 
 general public using the main highway. 
 
 A city is under no obligation to keep private property 
 in a safe condition for those using it, and is not therefore 
 liable to a person who is injured by defects upon such 
 property when he is using such property or is attempting 
 to enter upon it;^ but if a person who is using the pub- 
 lic street is injured because of defects in a private way 
 adjoining the main street, he can recover for his damage 
 if the street itself is rendered unsafe by the presence of 
 the defect." 
 
 § 84. Objects frightening horses. — At common law and 
 generally, objects which are calculated to frighten ordi- 
 narily gentle horses, and which are negligently allowed 
 to be on the highways, will furnish sufficient ground for 
 action against a municipal corporation ^ permitting them 
 
 ' Goodin v. Des Moines, 55 la. 67, Bennett v. Lovell, 12 R. 1. 166; Ken- 
 
 7 N. W. Rep. 411 (1880); Mulvane nedy v. Cecil Co., 69 Md. 65, 12 Cent. 
 
 V. South Topeka (Kas.), 25 Pac. Rep. Rep. 862 ; Merkle v. Bennington, 58 
 
 217 (1890). Mich. 157 (1885); Agnew v. Carun- 
 
 '^ Orme v. Richmond, 79 Va. 86 na, 55 Mich. 428, 54 Am. R. 383; 
 
 (1884); Smith V. Lowell, 139 Mass. Edgerly v. Concord, 59 N. H. 78; 
 
 33; Paine 7. Brockton, 138 Mass. Bartlett v. Hooksett, 48 N. H. 18; 
 
 564 (1885); Aston V. Newton, 134 Winship v. Enfield, 42 N. H. 199; 
 
 Mass. 507 (1883) ; Warner v. Hoi- Button v. Frink, 51 Conn. 342, 50 
 
 yoke, 112 Mass. 362 (1873) ; Zettler v. Am. Rep. 24 ; Ward v. North Haven, 
 
 Atlanta, 66 Ga. 195 ; Manderschid v. 43 Conn. 148 ; Dimick v. Suffield, 30 
 
 Dubuque, 29 la. 73 (1870). In- Conn. 129 (1861) ; Ayer v. Norwich, 
 
§ 84 DUTIES RESPECTING STREETS AND ROADS. l6l 
 
 to remain there when damage results from their pres- 
 
 ence. 
 
 In some States where the liability for all negligence in 
 regard to the highways is statutory, it is held that an ob- 
 ject which merely frightens horses is not sufficient to give 
 rise to the liability, as there must be closer connection be- 
 tween the defect and the injury;^ and it has been held 
 that an overhanging banner that frightened a horse was 
 not a defect which would give a right of action.* As 
 the facts of every case must show that the horse was 
 ordinarily gentle, that the object was sueh as was cal- 
 culated to frighten a horse of this kind,* and that its 
 
 Mo. 402 ; Stanley v. Davenport, 54 
 la. 463, 37 Am. Rep. 216 (1880) ; 
 Rockford v. Tripp, 83 111. 247 ; Chi- 
 cago V. Hoy, 75 111. 530; Tarry v. 
 Ashton, L. R. I Q. B. D. 314. 
 
 ' Wright V. Tempieton, 132 Mass. 
 50; Cole V. Newburyport, 129 Mass. 
 594(1880); Cook V. Montague, 115 
 Mass. 571; Bemis v. Arlington, 114 
 Mass. 507 (1874) ; Cook v. Charles- 
 town, 98 Mass. 80 ; Kingsbury v, 
 Dedham, 95 Mass. 186 ; Campbell v. 
 Stillwater, 32 Minn. 308; Gilbert v. 
 Flint Ry. Co., 51 Mich. 488; Ma- 
 comber V. Nichols, 34 Mich. 212. 
 
 If the injury is occasioned by the 
 defect itself when horses become 
 frightened, the town is liable. Stone 
 V. Hubbardston, 100 Mass. 49 ; Cush- 
 ing V. Bedford, 125 Mass. 526 (1878). 
 
 ' Young V. New Haven, 39 Conn. 
 435. See infra. Chap. XXII. 
 
 » In Hughes v. Fond du Lac, 73 
 Wis. 380 (1889), Cole, C. J., says: 
 " But the facts in this case show that 
 the city created a nuisance in the pub- 
 lic street, and it is liable therefor upon 
 the same principles as an individual 
 would be for a similar act. It is a 
 fair inference from the complaint that 
 the roller — which was an unsightly 
 11 
 
 object, naturally calculated to frighten 
 horses — was put and left in the street 
 by the agents and servants of the 
 city. It is alleged that the roller be- 
 longed to the city, was used by it for 
 the purpose of making its streets 
 more compact, and was carelessly 
 left where it obstructed a public 
 street. At common law any act or 
 obstruction which unnecessarily in- 
 commodes or impedes the lawful use 
 of a highway by the public is a nui- 
 sance. Angell on Highw., 223. In 
 this case the city itself created the 
 nuisance, as much as though it had 
 dug a ditch in the street, or placed a 
 pile of stones or any other obstruction 
 in the highway, which made it dan- 
 gerous to travelers ; and why should 
 it be exempted from liability to a par- 
 ty injured, on general principles? The 
 injury was not caused by an act ot 
 nonfeasance, but by malfeasance — 
 doing an act which was wholly wrong- 
 ful. The injury was produced by its. 
 positive act as much as by its neglect.. 
 A municipal corporation is no more 
 exempt from liability in case it cre- 
 ates a nuisance, either public or pri- 
 vate, than an individual. Selden, J., 
 in Weet v. Trustees, 16 N. Y. 16 1„ 
 
l62 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 84 
 
 presence in the highway was the real cause of the injury, 
 besides establishing the negligence of the municipal- 
 ity and the other essentials of the action, it is obvi- 
 ous that these cases present much opportunity for dis- 
 pute and must be controlled principally by the find- 
 ings of the jury. The cases show many instances where 
 municipal corporations have been held liable for negli- 
 gence of this character, and in general they establish that 
 where a defect in the street is the true cause of the injury, 
 whether the horse is momentarily beyond the control of 
 the driver or has entirely escaped from control, the mu- 
 nicipality is liable. But no duty rests upon the corpora- 
 
 172. That was an action brought for 
 an injury in falling into a hole beneath 
 a platform which constituted an ex- 
 tension of the sidewalk. The court, 
 after a most able and exhaustive dis- 
 cussion of the authorities, rested the 
 liability of the village upon the ground 
 that it constructed the platform in 
 such a manner as to constitute it a 
 public nuisance. Among other cases 
 referred to was the case of Mayor v. 
 Furze, 3 Hill 6 1 3, and it was com- 
 mented on as follows : ' This case il- 
 lustrates another distinction which is 
 directly applicable to the case under 
 consideration. The decision therein 
 is not put exclusively upon the ground 
 of the liability of the corporation for a 
 mere nonfeasance. The facts of the 
 
 ciples as an individual would be for a 
 similar injury.' " 
 
 Compare Rushville v. Adams, 107 
 Ind. 475, 57 Am. Rep. 124; Young v. 
 New Haven, 39 Conn. 435 (1872). 
 But see Keeley v. Shanley, 140 Pa. 
 213 (1891). For other objects held to 
 be such as are calculated to frighten 
 ordinarily gentle horses, see Fritsch v. 
 Allegheny, 91 Pa. 226 (1879) ; Cham- 
 plin v. Penn Yan, 34 Hun (N. Y.) 33 
 (1884); Cushing v. Bedford, 125 
 Mass. 526 (1878) ; Cook v. Montague, 
 lis Mass. 571 {1874) ; Piollet v. Sum- 
 mers, io6 Pa. 95 ; Davis v. Bangor, 42 
 Me. 522 ; Merrill v. Hampden, 26 Me. 
 234 ; Bloor v. Delafield, 69 Wis. 273, 
 18 Am. & E. C. C. 289; Brown V. 
 Eastern, etc. Railway Co., L. R. 24 
 
§85 
 
 DUTIES RESPECTING STREETS AND ROADS. 
 
 163 
 
 tion to regulate its streets for the use of horses that are 
 beyond control, and the way need only be safe for ordi- 
 nary use.* 
 
 § 85. Obligation to light streets. — There is no duty rest- 
 ing upon a municipal corporation to light its streets, 
 unless this is imposed by the legislature.* But when the 
 duty is thus imposed, reasonable care must be exercised 
 by the corporation to keep the street-lights in good order 
 and lighted at night.^ And for a failure in the discharge 
 
 ' In Ring v. Cohoes, 77 N. Y. 83 
 (1879), Earl, J., says: "When two 
 causes combine to produce an injury 
 to a traveler upon a highway, both of 
 which are in their nature proximate, 
 ^the one being a culpable defect in 
 the highway, and the other some oc- 
 currence for which neither party is 
 responsible, — the municipality is lia- 
 ble, provided the injury would not 
 have been sustained but for such de- 
 fect. This appears to us to be the 
 reasonable rule. It exacts no duty 
 from municipalities which has not al- 
 ways rested upon them. They must 
 use proper care and vigilance to keep 
 their streets and highways in a rea- 
 sonably safe and convenient condi- 
 tion for travel. This is an absolute 
 duty which they owe to all travelers ; 
 and when the duty is not discharged, 
 and,~in consequence thereof, a trav- 
 eler is injured, without any fault on 
 his part, they incur liability. They 
 are not bound to furnish roads upon 
 which it will be safe for horses to run 
 away, but they are bound to furnish 
 reasonably sa.fe roads ; and if they do 
 not, and a traveler is injured by cul- 
 pable defects in the road, it is no de- 
 fense that his horse was at the time 
 running away or was beyond his con- 
 trol." 
 
 In Moss v. Burlington, 60 la. 438, 
 
 46 Am. Rep. 82 (1883), it is said : 
 " The city must keep the streets in a 
 reasonably passable condition for 
 travelers, but it is not bound to keep 
 its streets passable for horses which 
 have escaped from the control of their 
 drivers." See infra, Chapter on 
 Proximate Cause. 
 
 * Lyon v. Cambridge, 136 Mass. 
 419 (1884) ; Macomber v. Taunton, 
 100 Mass. 255 ; Freeport v. Isbell, 83 
 III. 440, 25 Am. Rep. 407; Caskins 
 v. Atlanta, 73 Ga. 746 (1884) ; Whar- 
 ton on Negligence, § 973 ; Dillon on 
 Munic. Corp., § loio. In Elliott on 
 Roads and Streets, it is said at p. 
 457 : " Where a city is required by 
 statute, or by its charter, to light its 
 streets, it is, of course, liable for in- 
 juries caused by its neglect to do so ; 
 but where no such duty is imposed 
 on it by the legislature, it is not liable 
 for omitting to light its streets, al- 
 though the fact that a street was or 
 was not lighted may be material upon 
 the question of negligence where it 
 was partially obstructed or out of re- 
 pair." 
 
 ' Freeport v. Isbell, 83 111. 440, 25 
 Am. Rep. 407 ; Butler v. Bangor, 67 
 Me. 388 ; Gould v. Topeka, 32 Kasi., 
 485; Collins V. Macon, 70 Ga. 543; 
 Lewis V. Atlanta, 77 Ga. 756 (1886) ; 
 Dillon on Munic. Corp., § loio. 
 
164 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 86 
 
 of this duty, an action will lie in behalf of one who has 
 received special damage.^ 
 
 Obstructions and excavations also must be specially 
 lighted when they are within the limits of the highway, 
 and if reasonable care is not exercised to see that the 
 public is thus protected from them at night, the corpo- 
 ration in charge of the streets will be responsible for re- 
 sulting injuries.^ 
 
 § 86. Dangers arising from the granting of licenses.— 
 Some interesting cases have arisen upon the question of 
 municipal responsibility for the negligent acts of licensees 
 in the public streets. In general it may be said that there 
 is no responsibility for such acts, as licensees are not ser- 
 vants of the municipality, and as the granting of licenses 
 under proper ordinances involves the governmental 
 power of legislation.^ But in a case decided by the New 
 York Court of Appeals and already alluded to, where a 
 license was granted contrary to law, allowing the licensee 
 to keep a wagon in a public street in the city of New 
 York, the city was held liable for an injury occasioned 
 by the falling of the thills, which were negligently tied 
 
 ' Cleveland v. King, 132 U. S. 295 gation on the city to light building ma- 
 
 (1889) ; Barnes V. District of Colum- terials placed in the streets by others, 
 
 bia, 91 U. S. 540 ; Flater v. Fay, 70 In Baltimore v. O'Donnell, 53 Md. 
 
 Mich. 644; Gaskins v. Atlanta, 73 no, the city directed the work to be 
 
 Ga. 746 ; Gordon v. Richmond, 83 done, and was held liable for its neg- 
 
 Va. 436 ; Clark v. Richmond, 83 Ga. lect in regard to its own work. This- 
 
 355 (1887) ; McAllister v. Albany, 18 distinction, however, is not recognized 
 
 Or. 426, 23 Pac. Rep. 845. Infra, by the courts generally, for the duty 
 
 §§ 1 10, 146. to exercise care to keep the streets 
 
 ^ Fitzgerald v. Troy, 54 Hun (N. Y.) reasonably safe exists always, if at all, 
 
 633; Bauer v. Rochester, 35 N. Y. and neglect in regard to a danger 
 
 St. Rep. 959, 12 N. Y. Supp. 418; created by others gives rise to liabil- 
 
 M'CouU v. Manchester, 85 Va. 579 ity as readily as personal neglect by 
 
 (1888) ; Gordon v. Richmond, 83 Va. the corporation in its own affairs does, 
 
 436; Wilson V. White, 71 Ga. 506,51 » gee Carthage v. Frederick, 122 
 
 Am. Rep. 269 (1883). But see Sin- N. Y. 268. 19 Am. St. 490 (1890) 
 
 clair V. Baltimore, 59 Md. 592 (1882), Supra, % 35. 
 where it was held there was no obli- 
 
§86 DUTIES RESPECTING STREETS AND ROADS. 1 65 
 
 up.^ And in a case in Iowa where the use of a steam 
 motor in a street was authorized by a city, without legis- 
 lative authority, the municipality was held responsible for 
 injuries occasioned by its presence in the street* In 
 these cases the unlawful acts of the corporations within 
 the scope of their authority, and from which the munici- 
 palities gained pecuniary return, seem to have furnished 
 the real ground for decision. In another case the Wis- 
 consin Supreme Court held that a complaint charging 
 that a city had knowingly authorized and licensed a 
 dangerous exhibition of wild animals in its streets which 
 had occasioned the damage to the plaintiff, was not de- 
 murrable ; ' but when the case again came before the court 
 and it appeared that the license given did not specify the 
 streets as the place of the exhibition, it was held that it 
 was the duty of the licensee to choose a safe place, and 
 that the city was not responsible for not preventing the 
 exhibition in the street.* In a very recent case the city of 
 
 ' Cohen v. New York, 113 N. Y. the street; in other words, granted 
 
 532. Supra, p. 152, n. I. the license to Carr to exhibit the ani- 
 
 ' Stanley v. Davenport, 54 la. 463, mals in that place according to the 
 
 37 Am. 216 (1880). complaint. But it was not intended 
 
 ' Little V. Madison, 42 Wis. 643, 24 to affirm the doctrine that the city 
 
 Am. 435 (1878). was liable if its police officers neglect- 
 
 V * In Little v. Madison, 49 Wis. 605 ed to prevent the owner of the bears 
 
 (1880), Cole, J., says, referring to his from making an improper use of the 
 
 former opinion : " I say in the opin- street for a show ground, 
 
 ion that the allegations of the com- " The distinction seems to be obvi- 
 
 plaint show that the agents of the city ous between a case where the officers 
 
 not only knowingly and carelessly al- of the city authorize and license a show 
 
 lowed one of its principal streets to in the highway— that is, become them- 
 
 become obstructed by an exhibition of selves active agents in the commission 
 
 wild animals therein, which exhibition of the wrong, — and one where theyare 
 
 was calculated to produce injurj' to merely negligent in preventing such 
 
 persons lawfully traveling along the show or improper use of the street 
 
 street, but that it was averred that Doubtless the city officers were in 
 
 such exhibition was authorized and duty bound to be diligent to prevent 
 
 sanctioned by the city. By this Ian- the show in the street where it might 
 
 guage was meant that the city ex- cause injury to persons traveling 
 
 pressly authorized the hear show in thereon. But if they fai'ed to perform 
 
1 66 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. 
 
 86 
 
 Brooklyn has been held liable for injuries occasioned to 
 the house of an adjoining landowner by the negligent dis- 
 charge of fireworks on a public street, although this was 
 done under a permit which the mayor was authorized by 
 the charter to grant, and at a place where many previous 
 exhibitions had been given.^ But a municipality is not 
 liable for injuries occasioned by persons who are coasting 
 upon a street with the permission of the authorities.* And 
 
 that duty, and an injury resulted from 
 this omission, we do not understand 
 that the law renders the city liable for 
 such neglect." 
 
 ' Spier V. Brooklyn,' supra, p. 63, 
 note, where the opinion of the court 
 is printed in full, and brief comment 
 is made thereon (p. 67). In Lincoln 
 V. Boston, 148 Mass. 578, 26 N. E. 
 Rep. 329, 3 L. R. A. 257 (1889), where 
 an action was brought by one who 
 was injured because his horse became 
 frightened while being driven along 
 an adjoining street by the firing of 
 cannon on a common under a license 
 granted in pursuance of a city ordi- 
 nance, it was held there could be no 
 recovery against the city. In the opin- 
 ion of the court. Holmes, J., says : 
 ^'The case, then, is simply that the 
 city has failed to prohibit by legisla- 
 tion the firing of cannon in a public 
 park, or has given its legislative sanc- 
 tion on certain conditions. It has no 
 private interest in the matter, and 
 there is no statute giving an action 
 
 for such a cause Annoying, 
 
 and even dangerous, as such firing 
 may be, an adjoining householder 
 could not maintain an action against 
 ■the city ; and the plaintiff stands no 
 better than an adjoining owner would. 
 We do not understand that he seeks 
 to charge the city for a breach of its 
 statutory duty with regard to high- 
 ways. With regard to that, as to the 
 
 duty of landowners, it would be 
 enough to say that the act of the per- 
 son who fired the cannon was the 
 proximate, or at least a concurring 
 cause, and that he was not a servant 
 of the city." 
 
 ' In Burford v. Grand Rapids, 53 
 Mich. 98, 51 Am. Rep. 105 (1884), 
 Cooley, J., said : " The wrong at- 
 tributed to the city is that, through 
 its common council, it gave permis- 
 sion for the use of Fountain Street 
 for the amusement of coasting. This 
 permission was given in assumed ex- 
 ercise of the legislative power confer- 
 red upon the city to control the use of 
 the streets, and the action raises the 
 question whether a municipal corpo- 
 ration can be liable as for a tort, for 
 injurious consequences resulting from 
 an exercise of its legislative authority. 
 Legislative power, whether held by 
 the law-making authority of the State, 
 or by municipal bodies, is in its nature 
 governmental and discretionary, and 
 it is conceded by counsel for the 
 plaintiff that, as a general rule, a right 
 of action as for a tort will not arise 
 from any exercise of discretion in re- 
 spect to it." 
 
 And there is no responsibility for 
 failing in the prevention of coasting : 
 In Lafayette v. Timberlake, 88 Ind. 
 330 (1882), Elliott, J., says: "Cities 
 are held liable for defects in streets on 
 the ground that they are charged by 
 
§87 
 
 DUTIES RESPECTING STREETS AND ROADS. 
 
 167 
 
 the doctrine of responsibility for acts of licensees, it would 
 seem, should be confined to cases where a license is 
 granted to perform acts which are unquestionably danger- 
 ous in themselves * or which are authorized by the cor- 
 poration in excess of its authority and from which it de- 
 rives benefit, and on that account must answer for their 
 results.* 
 
 § 87. Charter exemptions from liability. — In some in^- 
 stances charters have been granted municipal corporations 
 containing clauses which it has been claimed exempted 
 them from the results of their own negligence. Such 
 an exemption is found in the charter of the city of Brook- 
 
 law with making and keeping them 
 reasonably safe for travel, and are 
 supplied with means enabling them 
 to perform this duty. 
 
 " The right to recover for injuries 
 caused by coasters cannot be rested 
 on this principle, for the very obvious 
 reason that no corporate duty rests on 
 municipal corporations to prevent per- 
 sons from breaking the laws and 
 making the streets unsafe by the mode 
 
 in which they use them The 
 
 manner in which a highway of a city 
 is used is a different thing from its 
 quality and condition as a street. 
 The construction and maintenance of 
 a street in a safe condition for travel is 
 a corporate duty, and for a breach of 
 such a duty an action will lie; but 
 making and enforcing ordinances reg- 
 tflating the use of streets brings into 
 exercise governmental and not cor- 
 porate powers, and the authorities 
 are well agreed that for a failure to 
 exercise legislative, judicial, or execu- 
 tive powers of government, there is 
 no liability." See also Faulkner v. 
 Aurora, 85 Ind. 130, 44 Am. Rep. 
 (1882); Pierce v. New Bedford, 129 
 Mass. S34, 37 Am. Rep. 387 (1880); 
 
 Steele v. Boston, 128 Mass. 583 (1880); 
 Hutchinson v. Concord, 41 Vt. 271 
 (i868j; Ray v. Manchester, 46 N. H. 
 59 (1865). But see Schultz v. Mi]!- 
 waukee, 49 Wis. 254 (i88o); Mayor 
 V. Marriott, 9 Md. 160. Supra, §§ 29, 
 
 35- 
 
 1 In Wheeler v. Plymouth, 116 Ind. 
 158, 9 Am. St. 837, 18 N. E. Rep. 532 
 (1888), Elliott, J., says: "It is quite 
 well settled that a municipal corpora- 
 tion is not liable for the acts of its 
 licenseesUnless it is shown that they 
 were authorized to perform an act 
 dangerous in itself," citing earlier In- 
 diana cases. In Hubbell v. Viroqua, 
 67 Wis. 343, 58 Am. R. 866, 30 N. 
 W. Rep. 847 (1886), it was held that 
 the city was not liable for an injury 
 occasioned by the negligent use of a 
 shooting-gallerj-, licensed by the city, 
 and located on the side of a street. 
 See also Cole v. Newburyport, 12^ 
 Mass. S94 (1880). 
 
 In Cole V. Nashville, 4 Sneed 
 (Tenn.) 162 (1856), the city was held 
 responsible for damages occasioned 
 by a lunatic whom it had authorized 
 to sell gunpowder. 
 
 5 Seen, i, p. 152. 
 
1 68 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 87 
 
 lyn.^ This exemption has been upheld by the courts,^ 
 but it is now construed to apply only to those cases where 
 a plain duty is devolved upon some public officer, whose 
 
 ' Charter Act of 1873, title xix., 
 § 27, is as follows : 
 
 " The city of Brooklyn shall not be 
 liable in damages for any misfeasance 
 of the common council, or any officers 
 of the city or appointee of the common 
 council of any duty imposed upon 
 them, or any or either of them, by the 
 provisions of this act, or of any other 
 duty enjoined upon them, or any or 
 either of them, as officers of govern- 
 ment, by any provision of this act ; but 
 the remedy of the party or parties ag- 
 ^eved for any such misfeasance or 
 nonfeasance shall be by mandamus, 
 or other proceeding or action to com- 
 pel the performance of the duty, or by 
 other action against the members of 
 the common council, officer, or ap- 
 pointee, as the rights of such party or 
 parties may by law admit, if at all." 
 
 ^ In Gray v, Brooklyn, and Fortman 
 V. Brooklyn, reported together in 50 
 Barb. 365 (1868), two cases were pre- 
 sented to the court, which involved 
 the question of responsibility for neg- 
 ligence respecting corporate property, 
 the first disclosing neglect to repair a 
 sewer, whereby the premises of the 
 plaintiff were flooded, and the second 
 showing neglect to repair a hole in a 
 wharf owned by the city, through 
 which a child fell, but the court held 
 that the exemption contained in the 
 city charter was sufficient to relieve 
 the city from all responsibility. Upon 
 appeal to the Court of Appeals this 
 decision was upheld, although two of 
 the judges dissented, and claimed that 
 a narrower interpretation should be 
 put upon the exemption clause. In 
 the. prevailing opinion it was said — 
 10 Abb. Pr. N. S. 186, 2 Abb. Ct. 
 App. Dec. 267 (1869) : "The object 
 
 of the legislature is dear, and that 
 was to exonerate the city from liability 
 on account of the omission and mis- 
 conduct of its officers, and to impose 
 all the legal consequences of their 
 acts directly upon the persons who 
 might be guilty of such official mis- 
 conduct. 
 
 " And that object can be secured 
 by no other constructions of this sec- 
 tion. 
 
 " Construed in this manner, then it 
 includes the present action, for the 
 real ground of the complaint, upon 
 which it was founded, was that two 
 of the officers of the city had omitted 
 to perform the duties officially en- 
 joined upon them. 
 
 . . . . " The legislature had the 
 power to determine the form in which 
 the franchises and obligations of the 
 municipal government should be con- 
 ferred upon the city, and under the 
 provision made by the constitution, 
 it did not part with the power by not 
 exercising it at that time. 
 
 " This section of the act of 1862 
 was not intended to divest the persons 
 who might be affected by it of their 
 right to redress, but to change and 
 limit their remedies for injuries sus- 
 tained by them. 
 
 " And that power has always been 
 deemed to be within the constitu- 
 tional province of the legislature. 
 Matter of N. Y. Protestant School, 31 
 N. Y. 574-585. The redress may 
 not always prove to be as entirely 
 adequate to the injury as an action 
 directly against the corporation itself; 
 but even if that be conceded, it will 
 not justify the conclusion that the act 
 is in conflict with the constitution on 
 that account." 
 
§ 87 DUTIES RESPECTING STREETS AND ROADS. 1 69 
 
 misfeasance or nonfeasance has caused the injury.^ In 
 Wisconsin a clause exempting a city from liability for the 
 negligence of contractors was held to be unconstitutional, 
 
 ' Hardy v. Brooklyn, 90 N. Y. 436 
 (1882) ; Fitzpatrick v. Slocum, 89 N. 
 Y. 358. In Biding v. City of Brook- 
 lyn, 120 N. Y. 98, Bradley, J., re- 
 ferring to this exemption clause, 
 says : 
 
 " The construction of this statute in 
 its application or effect as an exemp- 
 tion of the city from liability, so far as 
 it is given by those cases, is so limited 
 as to require, for the purposes of such 
 relief, that a plain duty be devolved 
 upon certain officers whose misfeas- 
 ance or nonfeasance has caused the 
 injury complained of, and in that case 
 only is the statute effectual to exempt 
 the city from liability where it other- 
 wise would be chargeable. A munic- 
 ipal corporation derives not only its 
 existence, but its powers from the 
 statute. It is not important for the 
 purposes of the question here whether 
 its liabilities for negligence in the ex- 
 ercise of its powers arise from contract 
 implied by the grant and acceptance 
 of its charter, or from duties imposed 
 upon it by statute. The municipality 
 can perform its functions only through 
 officers or agencies. For the dis- 
 charge of those powers of a govern- 
 mental or political character, which 
 are vested by the statute in officers, 
 and those duties not placed upon it, 
 . but upon officers or departments cre- 
 ated and vested with powers for pub- 
 lic purposes, as distinguished from 
 those for the purposes of the corpora- 
 tion, it is not responsible for their 
 misconduct or neglect to individuals 
 suifering damages as the result of it. 
 Lloyd V. Mayor, etc., 5 N. Y. 374; 
 Maxmilian v. Mayor, etc., 62 Id. 160; 
 
 Ham V. Mayor, etc., 70 Id. 459 ; Smith 
 V. City of Rochester, 76 Id. 506. 
 
 " There are various duties which 
 are legitimately those of the corpora- 
 tion, amongst which is that of taking 
 care of the streets within it. To keep 
 them in safe condition for public use 
 was a primary duty resting upon the 
 city of Brooklyn. And the depart- 
 ments and officers charged with that 
 duty, except so far as otherwise pro- 
 vided by statute, would be treated as 
 instrumentalities created and employ- 
 ed to perform- for it those corporate 
 functions, and it would be responsible 
 for the consequences resulting from 
 their negligent action or omission in 
 that service injuriously to individuals. 
 This was the relation to the city of the 
 department of city works, its commis- 
 sioner and bureau, so far as they were 
 charged with that duty, and such was 
 the liability of the city, except as it 
 was relieved from it by the statute be- 
 fore referred to. The streets are ex- 
 pressly placed within the jurisdiction 
 and power of the city and its common 
 council. Laws of 1873, chap. 863, 
 tit. 19, § 21. It has been seen that 
 the control given to the commissioner 
 of the department of city works is 
 subject to the direction of the com- 
 mon council, in which is vested the 
 general powers of the city, except so 
 far as they are delegated by the char- 
 ter to other officials. Moore v. May- 
 or, etc., 73 N. Y. 238. This qualified 
 power is devolved upon the commis- 
 sioner and the bureau which the stat- 
 ute has created." See also Fitzpatrick 
 V. Binghamton, 40 Hun 332 (1886) ; 
 Vincent v. Brooklyn, 31 Hun 122 
 (1883). 
 
1 70 MUNICIPAL DUTIES— GOVERNMENTAL AFFAIRS. § 87 
 
 on the ground that it relieved the municipality to which 
 it applied from an obligation resting upon all other similar 
 bodies.* And it seems manifest that such exemptions 
 are inequitable, and that if they are upheld it must result 
 in encroachments on the personal and property rights of 
 individuals. It may, therefore, be questioned whether a 
 sound public policy does not require that all public cor- 
 porations should be treated alike in this respect. Charter 
 requirements regulating the giving of notices of injuries, 
 and providing reasonable restrictions upon methods of 
 
 ' In Hincks v. Milwaukee, 46 Wis. 
 559 (1879), it appeared that the char- 
 ter of the city of Milwaukee contained 
 this provision : 
 
 " Sec. 2. The city of Milwaukee 
 shall not be held liable for damages 
 or injuries to persons or property in- 
 curred or happening at any place in 
 the said city where work of any kind 
 or nature is being done in or on streets 
 or sidewalks, by contractors under 
 contract witli the board of public 
 works, in consequence of the condi- 
 tion of such streets or sidewalks, aris- 
 ing from the doing of such work. But 
 if the contractors doing such work 
 shall fail to keep up sufficient fences 
 or protection-guards to prevent dam- 
 age or injury to pei-sons or property, 
 or shall be guilty of other negligence 
 in doing such work, and if injury to 
 persons or property occur by reason 
 of such default of such contractors, 
 such contractors shall be liable in an 
 action by the person so injured." 
 
 And the court said : " The section 
 undoubtedly extends to the case stated 
 in the complaint, and, if valid, entire- 
 ly exempts the city from all liability 
 for the damages sustained by the 
 plaintiff. That section makes the 
 
 contractor alone responsible for the 
 injury occasioned by his negligent act. 
 The validity of this provision is chal- 
 lenged by the plaintiff's counsel, who 
 insists that it is an attempt on the 
 part of the legjislature to grant a privi- 
 lege or immunity to the city of Mil- 
 waukee against a general rule of law, 
 while all other municipal corporations 
 are left subject to its operation. Such 
 an enactment, he claims, is odious 
 and unjust, and is distinctly con- 
 demned by the doctrine of this court 
 in Durkee v. Janesville, 28 Wis. 464. 
 It seems to us this objection is well 
 taken, and must prevail. In the Dur- 
 kee case, the charter of the city ot 
 Janesville declared that no costs 
 should be recovered against the city 
 in any action brought to set aside any 
 tax assessment or tax deed, or to pre- 
 vent the collection of taxes or assess- 
 ments. The charter in that particular 
 was held void, both upon principles of 
 constitutional law and as being in 
 violation of sec. 9, art. I. of the bill of 
 rights of our State constitution. The 
 opinion of Chief-Justice Dixon in the 
 case is so clear and exhaustive upon 
 the question, that nothing further need 
 be said upon the subject." 
 
§8; DUTIES RESPECTING STREETS AND ROADS. 171 
 
 enforcing the liability, stand upon a different footing, and 
 are frequently resorted to.^ 
 
 ' Raymond v. Sheboygan, 76 Wis. Sherry v. Canandaigua, 35 N. Y. St. 
 
 335 ('890) ; McNally v. Cohoes, 127 Rep. 432, 12 N. Y. Supp. 751 (1891) ; 
 
 N. Y. 350 (1891). See Tompkins v. Foxworthy v. Hastings, 25 Neb. 133 
 
 Oswego, 15 N. Y. Supp. 371; Mc- (i888). /«/>-a, § 138. 
 
CHAPTER XL 
 
 DUTIES IN RESPECT TO SIDEWALKS. 
 
 § 88. Statement of general duty. 
 
 89. Extent of obligation. 
 
 90. To whom duty is owing. 
 
 91. Necessary obstructions on sidewalks. 
 
 92. Defective construction. 
 
 93. Defects in the walk. 
 
 94. Authorities to examine for latent defects. 
 
 95. Dangerous descents from sidewalks. 
 
 96. Dangerous defects near sidewalks. 
 
 97. Injuries from falling objects. 
 
 § 88. Statement of general duty,— The duty of munic- 
 ipal corporations in respect to sidewalks varies in some 
 particulars from the duty in regard to streets. 
 
 In each case the duty is to exercise reasonable care to 
 keep the public highways safe for use. But the duty 
 with respect to sidewalks applies particularly to cities and 
 towns where sidewalks are constructed by public com- 
 pulsion, and the fact that when built they are intended 
 for the use of pedestrians, controls to a large degree the 
 character and amount of the care that municipalities 
 must use in keeping them safe. Where no walks are 
 constructed by the authorities the corporation in charge 
 of the highways is under no further obligation than that 
 imposed by the duty to keep the roadway it has opened 
 reasonably safe for use.' But when a sidewalk is built 
 and set apart for the use of foot passengers, and is under 
 
 'See Langdon v. Chartiers Tp., Langdon, 114 Pa. 541 (1886). Supra, 
 131 Pa. 77 (1889); Chartiers Tp. v. §72. 
 
§89 
 
 DUTIES RESPECTING SIDEWALKS. 
 
 173 
 
 the control of a municipality, then reasonable care must 
 be exercised by the corporation to keep the entire walk 
 in a suitable condition for the use for which it is de- 
 signed, and if there is failure to exercise this care, there 
 will be liability to any person who is injured thereby.' 
 
 § 89. Extent of obligation. — The fact that a private 
 corporation or an individual has built the sidewalk is 
 immaterial ; if it is a part of the public walk, and under 
 the control of the municipal authorities, the corporation 
 will be responsible for neglecting to exercise care to keep 
 it safe.'' This, moreover, is a duty which rests upon the 
 corporation alone, and owners of lots cannot be made 
 liable for injuries received on the sidewalk adjoining 
 their premises unless the injuries have resulted from their 
 
 ' Roe V. Kansas City, 100 Mo. 190 
 (1889). See supra, % 77. 
 
 ' In Saulsbury v. Ithaca, 94 N. Y. 
 27 (1884), Danforth, J., says: "The 
 place of the accident was a public 
 street in the village of Ithaca. Its 
 sidewalk was uneven upon the sur- 
 face, and slanting ; it extended over 
 and so bridged an excavation, three 
 or four feet deep, at the bottom of 
 which was a pile of sharp-cornered 
 stones, of such a shape that a person 
 falling upon them would receive seri- 
 ous injury. There was no railing or 
 other guard upon either side of the 
 walk. It does not appear to have 
 been built by the defendant, but had 
 been in this condition for about one 
 year, and the defendant had notice of 
 it a long time before the 13th of June, 
 
 1879 
 
 " The order appealed from assumes 
 that if the building of the walk had 
 been a corporate act, the defendant 
 would have been liable. That is well 
 settled. Conrad v. Trustees of Vil- 
 lage of Ithaca, 16 N. Y. 158. In such 
 
 case it would be sufficient to show 
 that the work was done by its author- 
 ity. If the structure which caused the 
 injury is erected on its land, or on 
 premises which it controls, by per- 
 mission of its officers, the same re- 
 sult most follow. An equal liability 
 is incurred when by omission to re- 
 pair or compel the removal of a walk 
 constructed without their authority, 
 but of the existence of which they 
 have notice, a way dangerous for 
 travel is allowed to stand within the 
 limits of its streets. In such a case it 
 is their duty to repair or remove it, 
 and with money in hand or power to 
 procure it, there is no ground for ir- 
 responsibility. One or the other of 
 these things must be done. It is true 
 that whether a municipal corporation 
 shall build, or permit to be built, a 
 sidewalk on any of its streets, is mat- 
 ter of discretion not to be regulated 
 by the courts ; yet, when a sidewalk 
 is built with or without its permission, 
 it becomes responsible for its condi- 
 tion and bound so long as it exists to 
 
174 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS, §89 
 
 own negligent acts.^ Lot owners do not owe any duty 
 to provide reasonably safe streets ; their entire obliga- 
 tion is to refrain from injuring others by neglecting 
 to exercise care in regard to their own affairs.^ But 
 
 keep it in order. This duty is minis- 
 terial and not judicial. Hines v. City 
 of Lockport, 50 N. Y. 239 ; Hyatt v. 
 Village of Rondout, 44 Barb. 395, 41 
 N. Y. 619; Vogel V. Mayor, etc., 92 
 Id. 10, 44 Am. Rep. 349. In this 
 case, therefore, it can make no differ- 
 ence how the walk came into exist- 
 ence, if the corporation, with notice, 
 permitted it to be used for public 
 travel. By the act of the builder, and 
 acceptance or acquiescence in the 
 building of it on the part of the de- 
 fendant's officers, they had control 
 over it, and it became the property of 
 the village as completely as if it had 
 been put in position by the village it- 
 self. The principle upon which the 
 above cases were decided uphold this 
 proposition, and the case of Requa v. 
 City of Rochester, 45 N. Y. 129, 6 
 Am. Rep. 52, to the same effect, is so 
 like the case before us, as to make it 
 decisive in favor of the appellant." 
 See also Shippy v. Au Sable (Mich.), 
 48 N. W^. Rep. 584 (1891) ; Lombar 
 V. East Tawas (Mich.), 48 N. W. Rep. 
 947 ; Flora v. Nancy, 26 N. E. Rep. 
 645 (1891), affi'g 31 111. App. 493 ; 
 Fuller V. Jackson, 82 Mich. 480, 46 
 N. W. Rep. 721 (1890); Lambert V. 
 Pembroke (N. H.), 23 Atl. Rep. 81 
 (1891) ; Hill V. Fond du Lac, 56 Wis. 
 242 ; Luck v. Ripon, 52 Wis. 196 
 (1881); Oliver v. Kansas City, 69 
 Mo. 79 ; Staples v. Canton, Id. 592 ; 
 Dalton V. Upper Tyrone Tp., 137 Pa. 
 1 8 (1890) ; Aurora v. Bitner, 100 Ind. 
 396; Indianapolis v. Murphy, 91 Ind. 
 382 ; Ponca V. Crawford, 23 Neb. 662 ; 
 Plattsmouth v. Mitchell, 20 Neb. 228. 
 
 In Columbus v. Strassner, 124 Ind. 
 482 (1890), it was held that a state- 
 ment in the complaint that the city 
 had exclusive authority over the side- 
 walk was sufficient to establish the 
 duty. 
 
 See supra, §§ 73, 74; infra, %% 119, 
 120. 
 
 ' Rochester v. Campbell, 123 N'. Y. 
 405 (1890); Chicago V. O'Brien, in 
 111. 532 (1884) ; Hartford v. Talcott, 
 48 Conn. 532 (1881) • Brookville v. 
 Arthurs, 130 Pa. 501, 18 Atl. Rep. 
 1076 (1889) ; Keokuk v. Independent 
 District, etc., 53 la. 352, 36 Am. Rep. 
 226 (1882). In Noonan v. Stillwater, 
 33 Minn. 198 (1885), the court held 
 that it was contrary to the constitu- 
 tion of Minnesota to put upon prop- 
 erty owners liability for injuries re- 
 ceived by persons upon adjoining side- 
 walks. See infra, § 105. 
 
 See Norton v. St. Louis, 97 Mo, 
 539 (1889) ; Hceney v. Sprague, 11 R. 
 I. 456 ; Flynn v. Canton Co., 40 Md. 
 312 ; Jansen v. Atchison, 16 Kas. 358, 
 
 ' " The owner of a city lot, who has, 
 with consent of the city authorities, 
 constructed a vault under the side- 
 walk in front of his lot, is not respon- 
 sible for injuries received by a pedes-^ 
 trian who falls into the vault on ac- 
 count of the breaking of the flag- 
 stone over it, where no actual negli- 
 gence on the part of the lot owner is 
 shown. Jennings v. Van Schaick, 
 108 N. Y. 530; Chicago City v. Rob-, 
 bins, 2 Black 418, 425 ; Robbins v. 
 Chicago City, 4 Wall. 657, 679; Vil- 
 lage of Seneca Falls v. Zalinski, 8 
 Hun 571, 573 ; Van O'Linda v. Loth- 
 
§ 89 DUTIES RESPECTING SIDEWALKS. I 75 
 
 the duty to keep the sidewalks in a suitable condition for 
 use rests always on the corporation, and, although others 
 may agree to discharge the duty on its behalf, if damages 
 are inflicted, the municipality must answer to the charge 
 of violating the duty, and if made liable, must look to 
 its action over, in order to reimburse itself for the amount 
 it has been obliged to expend.* 
 
 The duty of the corporation also extends to all the 
 sidewalks wherever they are situated, and is the same in 
 regard to all.' In each locality, however, the perform- 
 ance of the duty will be the exercise of reasonable care in 
 respect to that locality, and nothing more.' And that a 
 public sidewalk was built by a private person or is situ- 
 ated in part on private property will make no difference 
 in the liability of the municipality if it has exercised care 
 and control over the walk in question or should do so.* 
 For individuals are justified in presuming that all the 
 public walks open for use are in a reasonably safe con- 
 
 rop, 21 Pick. 292, 397; Fisher v. (1885); Chartiers Tp. v. Langdon, 
 Thiskell, 21 Mich. 21 ; Gridley v. City 114 Pa. 541, s Cent. Rep. 289 (1886). 
 of Bloomington, 68 111. 47, 50; Nel- ' Infra, § 171. 
 son V. Godfrey, 12 Id. 20, 23; Clark « Flora v. Nancy (111.), 26 N. E. 
 V. Fry, 8 Ohio St. 358 ; Wood v. 645 (1891) ; Barr v. Kansas City, 16 
 Mears, 12 Ind. 515 ; Mallory v. Grif- S. W. Rep. 483 (1891) ; Tritz v. Kan- 
 fey, 85 Penn. St. 275 ; Hundhausenv. sas City, 84 Mo. 632 (1884); Rock- 
 Bond, 36 Wis. 31 ; Irvin v. Fowler, ford v. Hallenbeck, 34 111. App. 40 
 5 Robt. (N. Y.) 482, 2 Dill. Mun. (1889) ; Fulliam v. Muscatine, 70 la. 
 Corp. §§699, 700; Cooley, Torts, 748. 436, 30 N. W. Rep. 86. See Wun- 
 The consent of a city to the construe- derlich v. New York, 33 Fed. Rep. 
 tion of a vault under the sidewalk in 854. 
 front of a business block may be in- ^ Supra, % 76. 
 ferred from the acquiescence for nine * Graham v. Albert Lea (Minn.), 50 
 years of the public officers in charge N. W. Rep. 1108 (1892) ; Foxworthy 
 of the streets. Second Division, Dec. v. Hastings (Neb.), 48 N. W. Rep. 
 8,1891. Babbage V. Powers. Opin- goi (1891) ; Mansfield v. Moore, 124 
 ionbyVann, J. 7 N. Y. Supp. 306, 111. 153. '3 W. Rep. 351 (1888); 
 affirmed." 45 Alb. L. J. 156. If the Jewhurst v. Syracuse, 108 N. Y. 303 
 lot owner is negligent, he will be lia- (1888); Weare v. Fitchburg, no 
 ble. Calder v. Smalley, 66 la. 219 Mass. 334. Supra,%^^. 
 
176 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §90 
 
 dition.' And it is not sufficient for the authorities to 
 notify the owner to make the repairs needed ; the walk 
 must be made safe within a reasonable time, or the pub- 
 lic must be guarded from the danger.' 
 
 § 90. To whom duty is owing. — The duty to keep the 
 sidewalks reasonably safe is not confined at common law 
 to travelers, as is the case where the obligation and con- 
 sequent liability arise wholly by statute. The general 
 rule is that every person who uses a sidewalk for any 
 purpose for which sidewalks are designed is within the 
 obligation of the duty. Nothing but reasonable care is 
 required from the corporation, and if a liability exists for 
 one person who is injured by a neglect to use this care, it 
 is artificial and unjust to refuse to allow the liability to 
 another person who is making an equally innocent use of 
 the walk, and who is injured by the same neglect. The 
 distinction, however* is the result of legislation, and is 
 not attributable to the common law. Even under the 
 New England statutes and those of the States holding to 
 the Massachusetts doctrine a person with a constitutional 
 disease,' a blind person,* or one who is otherwise seriously 
 afflicted,® is entitled to a free use of the streets and to the 
 protection afforded by the statutory liability for negli- 
 gence. But the common law does not draw a distinc- 
 tion between the exercise and play of young children ; 
 
 ' Roev. Kansas City, 100 Mo. 190 (1889); Russell v. Canastota, 98 N, 
 
 (1889) ; Centralia v. Baker, 36 111. Y. 496 (1885). 
 
 App. 46 (1891). But one walking on » Smalley v. Appleton, 75 Wis. 18, 
 
 an unimproved sidewalk does so at 43 N. W. Rep. 826 (1889). 
 
 his peril. Harrigan v. Brooklyn, 16 * Smith v. Wildes, 3 N. Eng. Rep, 
 
 N. Y. Supp. 743 (1891). Compare 744 (1887); Sleeper v. Landown, 52 
 
 supra, §§ 73, 74. N. H. 244. 
 
 « Smalley v. Appleton, 75 Wis. 18 'See also Harris v. Nebelhoen, 75 
 
 N.Y. 169(1878). 
 
§90 
 
 DUTIES RESPECTING SIDEWALKS. 
 
 177 
 
 and whether a child is using the street for exercise 
 or play he is entitled to his right of action if he is 
 injured by the negligence of the corporation.* So by 
 the general rule a person standing on the street,* or lean- 
 
 ' In McGuire v. Spence, 91 N. Y. 
 303 (1883), where the plaintiff was a 
 chiid fourteen years of age, Finch, J., 
 says : " Nor does it change the result 
 that she was playing upon the side- 
 walk instead of using it for ordinary 
 purposes of travel. Our attention is 
 called to certain cases in other States 
 as authority for the doctrine that only 
 those using the streets for their appro- 
 priate and normal purpose are within 
 the rule of protection. Blodgett v. 
 City of Boston, 8 Allen 237 ; Stinson 
 V. Gardiner, 42 Me. 248 ; McCarthy 
 V. City of Portland, 67 Id. 167, 24 
 Am. Rep. 23. In these cases the ac- 
 tions were against municipal corpora- 
 tions under statutes which bound 
 them to keep the streets safe and 
 convenient for travelers, and a just 
 construction of the written law fur- 
 nished the limitation of the corporate 
 duty. In this State we have held that 
 the duty exists not merely as to trav- 
 elers, but as to all persons lawfully 
 using the streets, and have imposed 
 upon a city a liability for negligence, 
 where the person injured was in no 
 sense a traveler, but engaged in ex- 
 cavating the street under lawful per- 
 mission, but for the benefit of a pri- 
 vate corporation. Rehberg v. The 
 Mayor, Jan. 23, 1883 {ante, p. 131). 
 This plaintiff was lawfully in the 
 street. She had a right to be there, 
 and while there, not to be exposed to 
 the possible dangers of an uncovered 
 opening in the sidewalk. Nor does it 
 matter that she was at play with other 
 children. In McGarry v. Loomis, 63 
 N. Y. 108, 20 Am. Rep. sio. we stated 
 it as a proposition, too. plain for com- 
 12 
 
 ment that ' it is not unlawful, wrong, 
 or negligence for children on the side- 
 walk to play.' " See Kunz v. Troy,, 
 104 N. Y. 344 (l887J; Shippy v. Au 
 Sable (Mich.), 48 N. W. Rep. 584 
 (1891); Indianapolis v. Emmelman 
 (Ind.), 23 Rep. 108 (1886); Chicago v. 
 Keefe, 1 14 111. 22 ; Collins v. South 
 Boston Ry. Co., 142 Mass. 301, 56 
 Am. Rep. 675. In McLoughlin v. 
 Philadelphia, 21 At). Rep. 754, it was 
 held that the city was not liable to a 
 child who was injured by the fall of 
 window-screens put upon the side- 
 walk by the proprietor of a store. 
 And in Gaughan v. Philadelphia, 119 
 Pa. 503, 12 Cent. Rep. 143, it was 
 held that there was no liability to a 
 boy who is injured by falling from an 
 awning-post upon which he was 
 sliding. 
 
 Supra, § 72. Compare infra, p. 
 178, n. I, and § 128. 
 
 ' In Duffy v. Dubuque, 63 la. 171 
 (1884), where it appeared that the 
 plaintiff was injured while standing 
 on the sidewalk to draw water from 
 
 a hydrant, Reed, J., said " The 
 
 position of counsel for appellant is 
 that, to entitle plaintiff to recover, he 
 must have been using the street at 
 the time of the accident, for some of 
 the ordinary and legitimate objects 
 for the promotion of which the city is 
 required to keep it in repair, and that 
 the acl he was doing at the time is 
 not of that character. The following 
 cases are cited as sustaining this po- 
 sition : Slinson v. Gardiner, 42 Maine 
 248 ; Stickney v. Salem, 3 Allen 374 ; 
 Blodgett v. Boston, 8 Id. 237 ; Nor- 
 ristown v. Moyer, 67 Pa. St. 355; 
 
I 78 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 90 
 
 ing on a bridge railing/ is not precluded by so doing 
 from insisting that the municipality has neglected to exer- 
 cise reasonable care to keep its highways in a fit condi- 
 tion for use. 
 
 Sykes v. Pawlett, 43 Vermont 
 446. 
 
 "The rule in the New England 
 States, and in some others, undoubt- 
 edly is, that the public corporation 
 which is charged with the duty of 
 keeping the highway in repair is liable 
 to one who is injured by its failure to 
 perform that duty, only in case the 
 injury is received while in the legiti- 
 mate use of the highway. In those 
 States, however, the duty to keep the 
 highway in repair is imposed on the 
 corporation by statute, and the extent 
 of that duty is expressly defined by 
 statute. The liability of the corpora- 
 tion to one who suffers an injury by 
 reason of its failure to perform the 
 duty, is also created and defined 
 by statute. The Massachusetts cases 
 cited are determined under statutes 
 which impose upon the corporation 
 the duty of keeping all highways with- 
 in its limits in such state of repair 
 that they may at all seasons of the 
 year be safe and convenient for travel- 
 ers passing along and upon them, and 
 which make it liable to any person 
 who suffers an injury through any de- 
 fect or want of repair therein ; and 
 they hold that, unless the person in- 
 jured by the defect was a traveler on 
 the highway within the meaning of 
 the statute, when he received the in- 
 jury, the corporation is not liable to 
 him therefor. They, however, put a 
 very liberal construction on the word 
 ' travelers,' as used in the statute. It 
 is held to include every one who has 
 occasion to pass over the highway for 
 any purpose of business, convenience, 
 or pleasure, and ' that the highway is 
 to be kept safe and convenient for all 
 
 persons having occasion to pass over 
 it while engaged in any of the pur- 
 suits or duties of life.' Blodgett v. 
 Boston, supra. 
 
 " Now, we feel that we are not 
 called upon to determine in this case 
 whether the rule in this State, as to 
 the liability of the corporation, is any 
 different from what it is in those 
 States, by reason of the fact that it is 
 not created or defined by statute, — a 
 question discussed by counsel ; for it 
 seems to us that the use which plain- 
 tiff was making of the street at the 
 time of the injury was a legitimate 
 and proper use. He was on the street 
 in the ordinary course of his business. 
 He had the right to go to the hydrant 
 for the purpose for which he went 
 there ; and, in going there, he had the 
 right to pass along the street. It was 
 convenient for him to stand upon the 
 sidewalk while drawing the water. It 
 was certainly not unlawful for him to 
 stand there for that purpose. He was 
 not a mere lounger, on the street, ob- 
 structing the travel thereon, but his 
 stopping there for the time and for the 
 purpose for which he stopped was a 
 mere incident to the general use which 
 he was making of the street at the 
 time." See also Donoho v. Vulcan 
 Iron Works, 75 Mo. 401. In Varney 
 v. Manchester, 58 N. H. 430, 42 Am. 
 Rep. 592, the same rule was asserted 
 with reference to one who was watch- 
 ing a procession. 
 
 ' Langlois v. Cohoes, 58 Hun 226 
 (1890), here Learned, P. J., says : " At 
 the close of the plaintiff's case the 
 defendant moved for a nonsuit on 
 thirty-one grounds. The court grant- 
 ed the nonsuit on the ground that the 
 
91 
 
 DUTIES RESPECTING SIDEWALKS. 
 
 179 
 
 § 91. Necessary obstructions on sidewalk. — For many- 
 purposes incidental to city life it frequently becomes 
 necessary to temporarily allow obstructions on sidewalks, 
 but the reasonableness of such obstructions must ap- 
 
 defendant's duty was limited to the 
 erection of a. railing which rendered 
 the bridge reasonably safe for public 
 passage and for such things as are 
 incidental to public passage, and that 
 the plaintiff was putting it to a use 
 for which it was not desig^ied. The 
 plaintiff appeals. As the plaintiff is 
 entitled to the most favorable view, 
 we must assume that she had not 
 been sitting on the rail, but had been 
 standing by it, leaning against it and 
 resting her hand thereon. The learn- 
 ed justice in nonsuiting relied upon 
 Stickney v. Salem, 3 Allen 374, with 
 the similar cases of Richards v. En- 
 field, 1 3 Gray 344 ; Orcutt v. Kittery 
 Point Bridge Company, 53 Me. 500; 
 Stinson v. Gardiner, 43 Id. 248 ; Peck 
 y. Ellsworth, 36 Id. 393. 
 . "Now, in regard to the cases in 
 those States, it is to be noticed that 
 there the liability of towns is statu- 
 tory, while with us the liability is held 
 to arise at common law. To show 
 the difference, we may refer to Stin- 
 son V. Gardiner, ut supra, holding 
 that where children used a part of the 
 public road for play, the town is not 
 liable for injury sustained by defects 
 in the road. With this we may com- 
 pare Kunz V. Troy, 104 N. Y. 344, 
 where the city was held liable for in- 
 jury to a child playing in the street, 
 caused by the fall of a counter placed 
 on the sidewalk for sale. In McGuire 
 V. Spence, 91 N. Y. 303, this differ- 
 ence between the law of some other 
 States and that of our own, in respect 
 to highways, is mentioned. 
 
 " In that case a child returning from 
 school joined others in their amuse- 
 
 ment of jumping the rope. While so 
 engaged she fell into an open area. 
 It was held that the fact that she was 
 playing, instead of simply passing 
 along the street, did not prevent a 
 recover}'. See McGarry v. Loomis, 
 63 N. Y. 108. 
 
 "Now the doctrine which holds 
 that the same duty of a city which 
 exists as to travelers, also as to a child 
 playing in the street, applies by anal- 
 ogy to this case. The man who, in- 
 stead of walking with unresting and 
 un deviating step across a bridge, 
 pauses for a moment and rests against 
 the railing, does not lose his right to 
 protection against negligence, any 
 more than does the child who plays in 
 the street instead of walking sedately 
 home. 
 
 " In Orcutt V. Kittery, etc., ui supra, 
 the captain of a company, to which 
 plaintiff belonged, called a halt upon 
 a bridge. Plaintiff leaned his back 
 against the railing to rest and wait for 
 further orders. As he sprang forward 
 to take his place in the ranks, the rot- 
 ten railing broke and he fell off the 
 bridge. 
 
 " It was held that it was for pas- 
 sengers only that the corporation was 
 obliged to maintain the railing, and 
 that he could not recover ; that his 
 use of the railing was unauthorized. 
 If that is the law of this State, the 
 nonsuit was proper. But we think 
 that such is not our law. 
 
 " The railing of the bridge should 
 be sufficient to meet all those inci- 
 dental uses to which it would reason- 
 ably be put by persons crossing. We 
 say nothing about sitting on the rail. 
 
l8o MUNICIPAL DUTIES-^GOVERNMENTAL AFFAIRS. § 91 
 
 pear.^ And when they are allowed the corporation must 
 exercise reasonable care to guard the public from danger 
 and to have the obstructions removed without unreason- 
 able delay.^ What constitutes a sufficient protection 
 
 We speak merely of that leaning 
 against it which is the common act 
 of a person stopping a moment for 
 any purpose on the sidewalk of a 
 bridge." See supra, § 72. 
 
 ' Flynn v. Taylor, 127 N. Y. 596 
 (1891), Vann, J., said: "The owner 
 of the land abutting upon a public 
 street is permitted to encroach on the 
 primary right of the public to a lim- 
 ited extent and for a temporary pur- 
 pose, owing to the necessity of the 
 case. Two facts, however, must exist 
 to render the encroachment lawful : 
 
 " I. The obstruction must be reason- 
 ably necessary for the transaction of 
 business. 
 
 " 2. It must not unreasonably inter- 
 fere with the rights of the public. 
 Callanan v. Gilman, 107 N. Y. 360; 
 Welsh V. Wilson, loi Id. 254. 
 
 " The foundation upon which the 
 exception seems to rest is that it is 
 better for the public to suffer a slight 
 inconvenience than for the adjacent 
 owner to sustain a serious loss. Any 
 unnecessary or unreasonable use of a 
 street, however, is a public nuisance, 
 and is declared by statute to be a 
 crime against the order and economy 
 of the State. Penal Code, § 385. A 
 remedy for a wrong against the public 
 may be found in the indictment of the 
 offender, or in a suit by the proper 
 officer in behalf of the people to com- 
 pel him to abate the nuisance. Peo- 
 ple V. Loehfelm, 102 N. Y. I ; People 
 V. Horton, 64 Id. 610 ; People v. Cun- 
 ningham, I Den. 524 ; Att'y-Genl. v. 
 Cohoes Co., 6 Paige 133; Wood on 
 Nuisances, § 729 ; Willard's Eq. Jur. 
 
 (Potter's ed.), 389, 401. Whenever 
 any person sustains a special and pe- 
 culiar loss in consequence of an un- 
 lawful obstruction to a public street, 
 he may maintain an action in equity 
 in his own behalf for damages and an 
 injunction. Such was the case of 
 Callanan v. Gilman, supra, upon 
 which the courts below relied in ren- 
 dering judgment in this action, and 
 which we also regard as analogous 
 and controlling." 
 
 See also Shook v. Cohoes, 108 N. Y. 
 648, II Cent. Rep. 301 (1888); Hex- 
 amer v. Webb, loi N. Y. 377 (1886); 
 Eccles V. Darragh, 48 N. Y. Super. Ct. 
 528 ; Mathews v. Kelsey, 58 Me. 56 ; 
 Denby v. Miller, 59 Wis. 240 ; War- 
 saw V. Dunlap, 112 Ind. 576, 5 W. 
 Rep. 361 ; Stuart v. Havens, 17 Neb. 
 211; Haight V. Keokuk, 4 la. 199; 
 Pennsylvania Ry. Co. v. Mish, 115 Pa. 
 5 14, 4 Cent. Rep. 276 ; Bradbee v. 
 London, 5 Scott N. C. 79; Ray on 
 Neg. of Imposed Duties, Personal, p. 
 71 ; Elliott on Roads and Streets, 
 p. 477 et seq. 
 
 ' In District of Columbia v. Wood- 
 bury, 136 U. S. 450, Mr. Justice Har- 
 lan, giving the substance of the charge 
 of Mr. Justice Cox to the jury, said in 
 part, as follows : 
 
 " 3. People must build houses, and, 
 in order to do that, it is necessary to 
 excavate for cellars and areas, if 
 needed, and to dig, trenches to con- 
 nect with the water-mains, gas-pipes, 
 and sewers. Nobody has a right to 
 do this without a permit from the 
 authorities, and if any person under- 
 takes to do it without a permit, he 
 
§91 
 
 DUTIES RESPECTING SIDEWALKS. 
 
 i8i 
 
 from danger depends upon what is reasonable under the 
 circumstances.* During the progress of work which in- 
 
 would be responsible for any injury 
 resulting; but the District would not 
 be, unless it had the notice already 
 spoken of. If a permit is granted, as 
 is usually the case, the fact is notice 
 to the authorities that the work is in 
 progress, and then they are charged 
 with the duty of seeing that it is prop- 
 erly conducted. 
 
 "4. These works are necessarily 
 dangerous to life and limb, and it is 
 the duty of a person doing the work 
 to protect it against accident to trav- 
 elers on the street, and the duty of a 
 private person is very much the same 
 as that of the District itself when 
 prosecuting an improvement. If a 
 private individual fails to protect the 
 excavation or hole, or whatever it 
 may be, it is the duty of the District 
 authorities to see that it is protected, 
 and they are held responsible that he 
 shall do it, for they were notified that 
 he was going on with the work when 
 he obtained his permit. If the indi- 
 vidual himself supplies the protection 
 against danger, then the duty will 
 have been discharged on his part, and 
 that of the District also will have been 
 discharged just the same as in the 
 case of the works being constructed 
 by itself. If, then, by any unforeseen 
 accident or the act of somebody that 
 could not be anticipated, the protec- 
 tion has been removed and new dan- 
 ger supervenes, of course the law 
 about notice applies. 
 
 " 5. The first question for the jury 
 was a delicate and difficult one, name- 
 ly, whether in the first instance a suffi- 
 cient protection was provided to guard 
 the public against accident. A mortar- 
 board was placed over the hole and 
 
 extended several inches beyond the 
 edges, and was the protection relied 
 upon. If there never was an adequate 
 protection provided in the first instance, 
 then the duty of the builder never was 
 fulfilled, and it would not make the 
 slightest difference whether it became 
 a little more dangerous by the dis'- 
 placement of the cover afterward or . 
 not, and the question of the notice 
 about this displacement would not 
 arise at all. If it was an adequate 
 protection in the first instance, then 
 comes the question of notice of sub- 
 sequent change. 
 
 " 6. It was for the jury to decide 
 whether the boards placed over the 
 hole be sufficient to sustain the weight 
 of an ordinary man traveling over 
 them. It is not only necessary that 
 the protection should be sufficient to 
 sustain the weight of persons passing 
 along, but another element is the 
 security of the covering in its place 
 over the hole to sustain the weight of 
 a heavy man walking over it. If it 
 would be liable to be kicked out of 
 place by persons passing along, it 
 might not be deemed an adequate 
 protection. But that was for the jury 
 to decide. They must decide whether 
 it was sufficient to sustain the weight 
 of a person passing over it, and 
 whether it was sufficiently secured, 
 either by artificial appliances or by its 
 own inherent weight, to hold it in its 
 proper place. It was not necessary 
 that the board placed over the hole 
 should have been made absolutely 
 safe against all interference, for no 
 barrier or other safeguard could be 
 put there which could not be removed 
 by some force, but only that it should 
 
 • See Copeland v. Blenheim, 9 O. R. (Can.), 19. 
 
l82 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 92 
 
 terferes with the full and free use of a sidewalk it is 
 impracticable to make it as safe and convenient as it 
 would be if no such work was undertaken. And all that 
 is required is that the walk shall be reasonably safe in 
 view of the changed condition of affairs.* 
 
 §92. Defective construction.— In constructing sidewalks 
 municipal corporations should exercise reasonable care to 
 make them safe ; and if they fail to do this, they become 
 liable for maintaining an unsafe highway.* The defect in 
 such a case arises from the act of the municipality, and 
 no notice of its existence is necessary.' It has been said 
 by high authority that where a defect is traceable to the 
 plan adopted by the public authorities, there will be 
 no liability for an injury occasioned thereby ;* but this is 
 not the prevailing rule, as will appear when this subject 
 is more fully discussed in a subsequent place.^ The true 
 rule is believed to be that whenever a municipal corpora- 
 tion knowingly maintains a sidewalk that is in fact un- 
 safe, it is answerable for the damages justly attributable 
 
 be safe against the consequences of known it, so as to impose upon them 
 the ordinary use of the street — such the obligation to put it in proper con- 
 contingencies as might fairly have been dition." 
 
 anticipated and foreseen. If it was ' See Nolan v. King, 97 N. Y. 565 
 
 such a precaution as proper care, dili- (1884). 
 
 gence, and foresight ought to have ' Moore v. Platteville (Wis.), 47 N. 
 
 provided for, and the accident was W. Rep. 1055 (1891); Pfeifer v. Lake, 
 
 not occasioned by any defect in the 37 111. App. 367 (1890). Infra, % 139. 
 
 original appliance provided there, but ° Moore v. Platteville, supra,' 
 
 that it was subsequently, by some un- Wheaton v. Hadley, 131 111. 640. 
 
 foreseen occurrence or agency, or the Infra, § 184. 
 
 exertion of some individual, moved * See Hubbell v. Yonkers, 104 N. 
 
 from its place and thereby made dan- Y. 434 (1887) ; Urquhart v. Ogdens- 
 
 gerous, then the above rules as to burgh, 97 N. Y. 238 (1884) ; Betts v. 
 
 notice will apply. The burden is on Gloversville, 29 N. Y. St. Rep. 331 ; 
 
 the plaintiff to prove either that the Rhinelander v. Lockport, 38 N. Y. St, 
 
 thing was originally dangerous or had Rep. 567, 14 N. Y. Supp. 850 ; Sher- 
 
 become so long enough before the man & Redfield on Neg., § 271. 
 
 accident for the authorities to have ' Infra, §§ 141, 145. 
 
§92 
 
 DUTIES RESPECTING SIDEWALKS. 
 
 183 
 
 to its defective condition.* It is not material how or why 
 it is unsafe ; the danger to the public consists in its unsafe 
 character and the failure of the authorities to remedy the 
 trouble or protect the public from it, is the neglect for 
 which the corporation should be held responsible. 
 
 ' In Malloy v. Walker, 77 Mich. 
 448, 6 L. R. A. 66, 43 N. W. Rep. 
 1012 (1889), there was a failure to 
 erect barriers along the edge of an 
 embankment upon which the high- 
 way crossed a ravine. The road 
 had been in use without a railing for 
 25 years, and the action was brought 
 under the Wisconsin statute. The 
 defendant's counsel claimed that the 
 township could not be held liable on 
 account of the plan or scheme of con- 
 struction of a road either as to height, 
 width, or want of barriers, but the 
 court said : " This statute cannot be 
 given a construction that would re- 
 lieve a township or other municipality, 
 upon which a burden is cast to keep 
 its highways in repair and reasonably 
 safe for travel, from liability by saying 
 that it had adopted a method of 
 construction and had built according 
 to the plan. Municipalities cannot 
 construct a dangerous and unsafe 
 road, — one not safe and convenient 
 for public travel, — and shield itself 
 behind its legislative powers to adopt 
 a plan and method of building and 
 constructing in accordance therewith. 
 The negligence consists, not in the 
 plan of the work or the manner in 
 which it was done, but in the failure 
 to provide suitable protection against 
 accident after the embankment had 
 been made. The statute is impera- 
 tive to make a road reasonably safe, 
 and whether it is in that condition of 
 safety and fit for travel must be a 
 question for the jury, under proper 
 circumstances." If this roadway was 
 
 built at such height between hills and 
 so narrow that it required barriers to 
 make it reasonably safe, it became the 
 duty of the township to erect them ; 
 failing in this, the township must be 
 held to suffer the consequence of such 
 neglect. 
 
 " If the township could not make 
 this embankment there reasonably 
 safe and fit for travel in adopting a 
 plan of construction, they were not 
 compelled to construct a highway 
 over the place, or to maintain it, and 
 it could have been closed to public 
 travel until put in safe condition. But 
 having constructed it, and invited the 
 public to travel over it, their duty 
 under the statute was plain. It ap- 
 pears that the direct and immediate 
 cause of the injury was the unguarded 
 condition of this high embankment. 
 If any sort of barriers had been 
 placed along its sides, so that the 
 hind wheels of the vehicle could not 
 have traveled so far over the side, no 
 accident, apparently, would have haj)- 
 pened. It is true that no complaint 
 was made to the officers of the town- 
 ship, whose duty it was to maintain 
 the road in a safe condition, yet, as 
 we have stated, it did appear that 
 they lived in close proximity to the 
 place, and some of them frequently 
 passed over it, and must be held to 
 have had such knowledge or notice of 
 its defective condition as the statute 
 requires to fix the liability. It is con- 
 tended that the evidence shows that 
 the occurrence was a pure accident. 
 We do not so regard it. It was a 
 
;l84 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § 93 
 
 / § 93. Defects in the walk.— Sidewalks are properly used 
 for other purposes than walking upon them, and stepping- 
 stones placed thereon for the convenience of those using 
 carriages are not defects.^ And slight unevennesses and 
 deviations do not render them unsafe.* But it has been 
 
 <}uestion for the jury to find whether 
 it would have occurred if the highway 
 had been in proper condition, and 
 this question was left to them under 
 the charge of the court." See also 
 Gould V. Topeka, 32 Kas. 485, 49 Am. 
 R. 496 (1884). Infra, %% 140-145. 
 
 ' Dubois V. Kingston, 102 N. Y. 
 219 (1886). Here Miller, J., says: 
 " It would be extending the rule of 
 the liability of municipal corporations 
 far greater than has yet been done in 
 any decided case to hold that they 
 are liable for assenting to the placing 
 of stepping-stones on the edge of 
 sidewalks in front of hotels, stores, 
 public buildings, and private resi- 
 dences. The courts have gone quite 
 far in holding such corporations to a 
 very strict responsibility in reference 
 to accidents caused by failure of their 
 officers to keep the streets and side- 
 walks in a proper and safe condition, 
 but it would be adding to the corpo- 
 rate liability beyond reasonable limits 
 to hold that stepping-stones, which 
 are almost a necessity in providing 
 for the interest, comfort, and conven- 
 ience of the public in the maintenance 
 of walks, avenues, and streets, con- 
 stitute a nuisance or obstruction, and 
 that corporations are liable for dam- 
 ages by reason of accidents caused 
 thereby. 
 
 " As this case is presented, there is 
 no evidence which justifies the con- 
 clusion that the stepping-stone in 
 question was dangerous to travelers 
 passing along the street, or that the 
 city authorities were chargeable with 
 
 negligence in allowing it to remain 
 where it was located." The same 
 rule applies to trees and hitching- 
 posts properly placed on the edge of 
 the walk. See Rockford v. Tripp, 83 
 111. 247 ; Marble v. Worcester, 70 
 Mass. 395. Supra, % 79. 
 
 * In Burns v. Bradford City, 137 Pa, 
 361, II L. R. A. 726, 20 Atl. Rep. 
 997 (1890), it was said: "A munici- 
 pal corporation is not an insurer 
 against all defects in its highways, but 
 it is answerable for negligence in the 
 performance of its duties in the con- 
 struction and care of them. For a 
 defect arising in them, without its 
 fault or neglect, it is not liable, unless 
 it has express notice, or the defect be 
 so notorious as to be evident to all 
 passers. If a defect is such that it is 
 discovered by one of a thousand or 
 more persons who pass it in the ordi- 
 nary pursuit of business or pleasure, 
 can it be said to be notorious or such 
 a defect as the municipality is bound 
 to take notice of? We think not. 
 
 " It is a fact well known to the in- 
 habitants of all our municipalities that 
 the sidewalks, whether of plank or 
 stone, are liable in the winter to be 
 thrown out of level by the action of 
 the frost, and in the spring, when the 
 frost is out of the ground, to settle to 
 their former positions. It is not nec- 
 essary or practicable that for every 
 slight deviation of the walks from 
 their original level they should be 
 taken up or relaid while the ground is 
 frozen, nor would the comfort and 
 safety of pedestrians be promoted by 
 
§93 
 
 DUTIES RESPECTING SIDEWALKS. 
 
 185 
 
 held that there was no liability where the defect was a 
 hole in which a policeman caught his foot while strug- 
 gling with a person under arrest, but over which persons 
 would walk without difficulty.^ Many cases have arisen, 
 however, where loose planks in walks have caused inju- 
 ries, and these are usually actionable defects ; ^ so any 
 considerable hole, in which the foot of one using a walk 
 would naturally be caught, is a defect which would give 
 a right of action.* And the crosswalks are a continua- 
 tion of the sidewalk.* Objects carelessly left on side- 
 
 such action. Aside from the evi- 
 dence of Mrs. Fitzpatrick, there is 
 nothing in the case to show that the " 
 walk was unsafe or out of repair prior 
 to the appellee's fall upon it. If the 
 condition described by Mrs. Fitzpat- 
 rick once existed,- there is no room, in 
 the presence of the testimony of the 
 appellee and all the other witnesses in 
 the cause, for a presumption that it 
 continued. We think the evidence is 
 insufficient to charge the city with no- 
 tice of any defect in the sidewalk in 
 question, and we sustain the fourth 
 specification of error." In Witham 
 V. Portland, 72 Me. 539 (1881), it was 
 held that a slight depression in a side- 
 walk near a cellar window was not a 
 defect. But in Glantz v. South Bend, 
 106 Ind. 305 (1885), it was held that 
 where a plank walk was from two to 
 two and a half inches above a cement 
 walk, of which it was a continuation, 
 the corporation was liable to a woman 
 who was injured at night by falling on 
 the walk. See n. 4, infra, 
 
 > Childrey v. Huntington (W. Va.), 
 II L. R. A. 313, 12 S. E. Rep. 536. 
 That a sidewalk is four inches above 
 a crosswalk is no evidence of negli- 
 gence. London v. Goldsmith, 16 Can. 
 Sup. Ct. 233 (1889). 
 
 ' Lombar v. East Tawas, 48 N. W. 
 
 Rep. (1891); Kansas City v. Brad- 
 bury (Kas.), 25 Pac. Rep. 889 (1891) ; 
 Moon V. Ionia, 81 Mich. 635, 46 N. 
 W. 45 (1890) ; Riley v. Iowa Falls, 50 
 N. W. Rep. 33 (1891) ; Armstrong v. 
 Ackley, 71 la. 76 (1887) ; Mitchell v. 
 Pittsburg, 33 Mo. App. 555 {1888) ; 
 Ruggles V. Nevada, 63 la. 185; 
 O'Neil v. New Orleans, 30 La. Ann. 
 220, 31 Am. Rep. 221 (1878), loose 
 flag-stone. 
 
 ' Tice V. Bay City (Mich.), 47 N.W. 
 Rep. 1062 (1891) ; Atlanta v. Alex- 
 ander, 80 Ga. 637 (1888) ; Enright v. 
 Atlanta, 78 Ga. 288 (1886). 
 
 * Goodfellow V. New York, 100 N. 
 Y. IS (1885), Rapallo, J., says : " The 
 displaced stone was five feet long by 
 two feet wide. The regular g^ade of 
 the crosswalk was such that there 
 was a rise of seven inches in the cen- 
 tre. The length of the walk being 
 thirty feet, this grade caused a fall on 
 each side of seven inches in fifteen 
 feet, or about half an inch to the foot. 
 According to the testimony on the 
 part of the defendants, this stone 
 sloped toward the south two and 
 eighth-tenths inches on the westerly 
 side, and four and one-half inches on 
 the easterly side, from the highest 
 point. But according to the testi- 
 mony on the part of the plaintiff, the 
 
1 86 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 93 
 
 walks, which are calculated to prevent safe walking, must 
 be removed by the authorities within a reasonable time.' 
 And however the defects may have arisen, the corpora- 
 tion should remedy them so far as it reasonably can, when 
 knowledge of their existence comes to the proper au- 
 thorities.* During necessary repairs, the public must be 
 guarded from danger.^ 
 
 depression of the stone below the level 
 was eight inches at the southeast 
 comer and five inches at the south- 
 west comer, the northwest corner be- 
 ing on the level. Whether these ir- 
 regularities were suflScient to render 
 the walk unsafe, and call for repairs, 
 was not a question of law which the 
 court below undertook to decide, nor 
 which we will now undertake to de- 
 cide. There may be cases of irregu- 
 larity in the pavements of streets, 
 so slight that the court would be 
 justified in holding that it was not 
 negligence on the part of the city to 
 omit to repair them, or that the evi- 
 dence of negligence was too slight to 
 submit to a jury. But, taking the 
 testimony on the part of the plaintiff, 
 we cannot so hold in the present 
 case. In Clemence v. Auburn, 66 N. 
 Y. 334, there was a depression of six 
 inches in three and one-half feet in 
 a stone in the sidewalk, upon which 
 the plaintiff slipped and fell. This 
 court (p. 342) held that whether this 
 rendered the walk unsafe, was, upon 
 the evidence, a proper question for 
 the jury. The depression in the pres- 
 ent case was, on the plaintifiF's testi- 
 mony, eight inches in one corner of a 
 stone five feet by two, and the cir- 
 cumstances were not precisely similar. 
 A slope which is regular and in ac- 
 cord with that of the adjoining pave- 
 ment, may be much safer than one 
 
 which is accidental or irregular, and 
 the result of want of repair. In such 
 cases the question cannot be deter- 
 mined by nice calculations, and the 
 question of negligence should be de- 
 termined as one of fact in view of all 
 the circumstances." Grossenback v. 
 Milwaukee, 65 Wis. 31 ; Schroth v. 
 Prescott, 63 Wis. 652 ; Whitney v. 
 Milwaukee, 57 Wis. 538; Stilling v. 
 Thorp, 54 Wis. 538 ; Flynn v. Canton' 
 Co., 40 Md. 312. 
 
 ' Pomfrey v. Saratoga Springs, 104 
 N. Y. 459 (1887) ; Shook v. Cohoes, 
 108 N. Y. 648. 
 
 ' Kansas City v. Bradbury (Kas.), 
 25 Pac. Rep. 889 ; Lincoln v. Staley 
 (Neb.), 48 N. W. Rep. 887 ; Hebert 
 V. Northampton, 1 52 Mass. 266 ; Mc- 
 Donald V. Newark, 42 N. J. Eq. 136, 
 5 Cent. Rep. 646 ; Rockfort v. Hild- 
 erbrand,6l 111. 155; Chicago v. Dalle, 
 115 HI. 386 (1885); Chicago v. Kim- 
 ball, 18 111. App. 240; Chicago v. Mc- 
 Carthy, 75 111. 602 ; Chicago v. Lan- 
 glass, 66 111. 361 ; Evansville v. Wil- 
 ter, 86 Ind. 414 ; Lafayette v. Weaver, 
 92 Ind. 477 (1883); Washington v. 
 Small, 86 Ind. 462; Indianapolis v. 
 Scott, 72 Ind. 196; Higert v. Green- 
 castle, 43 Ind. 574 ; Smalley v. Ap- 
 pleton, 70 Wis. 340 j Thomas v. 
 Brooklyn, 58 la. 438 (1882) ; King v. 
 O-shkosh, 75 Wis. 517; Studley v. 
 Oshkosh, 45 Wis. 380 ; Squires v. 
 Chillicothe, 5 W. Rep. 366 ; O'Neil 
 
 ' Kimball v. Bath, 6i Am. D. 243, 79 Am.D. 702. Supra, % 91 ; infra, \ no. 
 
§ 94 DUTIES RESPECTING SIDEWALKS. 1 87 
 
 § 94. Authorities to examine for latent defects. — To exer- 
 cise reasonable care over sidewalks municipal corporations 
 must take into consideration the natural law of decay as 
 well as the effect of use and of climate upon the materi- 
 als used in the construction of its walks.^ The same rule 
 holds as to all the work and all the property of the corpora- 
 tion, and it imposes upon municipalities the duty of reason- 
 able inspection to guard against danger that should be ex- 
 pected. What this inspection is in particular cases must 
 be left to the good sense of the jury, unless, indeed, the 
 facts are so clear that the law will tolerate but one infer- 
 ence from them.*' The natural time at which decay of 
 wood may be looked for is a proper subject of inquiry 
 with respect to a board walk ; * and the condition of the 
 sidewalk at the time of the injury, and the length of the 
 period during which it was out of repair, will also have an 
 important bearing upon this subject. The corporation 
 should not be required to undertake an impracticable or 
 unreasonable amount of inspection, but only such as pru- 
 
 V. New Orleans, 30 La. Ann. 202 ; 66 N.' Y.. 341 ; Kellogg v. Janesville, 
 
 Lincoln v. Woodward, 19 Neb. 259 34 Minn. 132 ; Noonan v. Stillwater. 
 
 (1886); York V. Spellman, Id, 357; 33 Minn. 198; Furnell v. St, Paul, 20 
 
 Lincoln v. Walker, 18 Neb. 250 ; Bel- Minn. 117 ; Beazan v. Mason City, 58 
 
 vin V. Richmond, 85 Va. S74 ; Atlanta la. 233 ; Thomas v. Brooklyn, Id. 
 
 V. Perdue, 53 Ga. 607. Bicycles are 438 ; Barnes v. Newton, 46 la. 567 ; 
 
 entitled to the use of the road only, Market v. St. Louis, 56 Mo. 189; 
 
 and have no right on the sidewalk. Atchison v. Jansen, 21 Kas. 560. 
 
 Holland v. Bartch. 120 Ind. 46, 16 ' La Salle v. Porterfield (111.), 27 N. 
 
 Am. St. Rep. 307 (1889) ; Mercer v. E. Rep. 937 (1891) ; Peoria v. Simp- 
 
 Corbin, 117 Ind. 450, 10 Am. St. Rep. son, no 111. 294, 51 Am. Rep. 683 ; 
 
 76; State V. Yopp, 97 N. C. 477, 2 Stebbins v. Keene Tp., 55 Mich. 552, 
 
 Am. St. Rep. 305 ; Taylor v. Good- 22 N. W. Rep. 37 ; Nanticoke Bor- 
 
 win. L. R. 4 Q. B. D. 228. Horses ough v. Warne, 106 Pa. 373 ; Atlanta 
 
 should be kept off the sidewalks, v. Champe, 66 Ga. 659; Kellogg v. 
 
 Commonwealth v. Curtiss, 91 Mass. Janesville, 34 Minn. 132 (1885). 
 
 266; Pedrick v. Bailey, 78 Mass. 161 ; ^ Infra, § 190. 
 
 Goldsmith v. London, 1 1 O. R. 26 Q. ' McConnell v. Osage City, 80 la. 
 
 B. D. ; Bullock v. New York, 99 N. 293 (1890); Ferguson v. Davis Co., 57 
 
 Y. 654 (1885) ; Clemence v. Auburn, la. 601. Supra, § 82, n. 4. 
 
1 88 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §95 
 
 dence, good sense, and reason make necessary. For it is 
 only where there is neglect by the authorities that the 
 corporation will incur liability, and the cases are extremely 
 rare where the corporation has been held liable when it has 
 made anything like a serious effort to protect the public* 
 
 § 95. Dangerous descents from sidewalks. — Cellarways 
 descending from sidewalks to basements of buildings are 
 a necessity of city life,^ but the corporation must not allow 
 
 ' Infra, § 190. Remote contin- 
 gencies need not be provided against. 
 Loftus V. Ferry Co., 84 N. Y. 455 
 (i88i); Cleveland v. Steamboat Co., 
 68 N. Y. 306 ; Dongan v. Transporta- 
 tion Co., 56 N. Y. I. 
 
 " In Beardsley v. Hartford, 50 Conn. 
 542, 47 Am. R. 677, 4 Am. & Eng. 
 C- C. 595 (1883), Loomis, J., says: 
 .... "Must not the necessities of 
 this business furnish the law that shall 
 determine the action of the city in the 
 matter of barring out the public, for 
 the sake of the safety of travelers, from 
 those places below the level of the 
 sidewalk that the business of tj^e city 
 absolutely requires should be kept 
 easily accessible ? There are special 
 dangers all along a city street for an 
 unwary foot passenger, that do not 
 exist in country towns. The project- 
 ing steps against which a pedestrian 
 can so easily stumble in the night and 
 be hurt, — the hitching-posts, posts 
 for awnings, the very curbstone over 
 which he could so easily trip, with the 
 lower level of the gutter into which 
 he could so easily be carried by a mis- 
 step, the occasional necessary descent 
 of a steep place by steps, the project- 
 ing buttresses of buildings against 
 which he might run — all needing but 
 a slight deflection from the central 
 part of the walk, which one would 
 be very likely to make on a dark 
 and sturmy night,— all these things. 
 
 presenting dangers rarely found in a 
 country village, and dangers to which 
 the larger population makes the aggre- 
 gate of exposure much greater, a city 
 does not attempt, and is not expected, 
 to provide against. They are neces- 
 sary features of a city, and the peril a 
 necessary incident of city life. The 
 open basement descents are as neces- 
 sary to the business of the city as the 
 open and unprotected wharves of a 
 seaport are to its commerce. Some 
 streets in the city of New York lie 
 close along the water, the wharves 
 opening from them, and necessarily 
 kept open for the passage of drays, 
 while their outer edge is protected 
 only by a low string-piece, which 
 while sufficient to prevent drays from 
 backing into the water, would be no 
 protection to a foot passenger, but 
 would be likely to cause him to stum- 
 ble and fall into the water. These 
 unprotected wharves are often but a 
 few feet from the line of the street, 
 and the passenger could easily stray 
 upon them in a dark night. 
 
 " The principle we are laying down 
 is only the old established one, that 
 the city must have been guilty of neg- 
 ligence in leaving a basement entrance 
 unprotected, before it can be liable for 
 an injury happening by reason of it. 
 If the erection of a barrier in front of 
 such an entrance is what the city has 
 no right to do, or if having the right, 
 
§95 
 
 DUTIES RESPECTING SIDEWALKS. 
 
 189 
 
 them to become traps for pedestrians.^ Whether a cellar- 
 way is a defect in the sidewalk which will make the mu- 
 nicipality liable, is usually a question of fact to be con- 
 sidered with reference to the surrounding circumstances.* 
 The walk must be reasonably safe, and any opening that 
 projects into it should be guarded,^ and cellar-doors cover- 
 ing such an opening must be reasonably safe.^ Areaways 
 lower than the sidewalk must also be adequately pro- 
 tected,* and where a number of steps are necessary to go 
 to a lower grade the corporation should provide side 
 
 it is what it cannot reasonably be ex- 
 pected to do, then there is no negli- 
 gence in the omission to do it." 
 
 ' McGuire v. Spence, 91 N. Y. 303 
 (1883) ; Davenport v. Ruckman, 37 
 N. Y. 568 ; Chicago v. Robbins, 2 
 Black (U. S.) 418 (1862), 
 
 ' Franklin v. Harter (Ind.), 26 N. 
 E. Rep. 882 (1891). 
 
 ' Day V. Mt. Pleasant, 70 la. 193 
 (1886), here it was held that at night 
 cellarways should be properly lighted. 
 Augusta V. Hafers, 69 Ga. 151 (1877) ; 
 Chapman v. Macon, 55 Ga. 566; 
 Smith V. Leavenworth, 15 Kas. 81 
 (1875); Grove v. Kansas City, 75 Mo. 
 672 ; Witham v. Portland, 72 Me. 539 
 (1881) ; Lombard v. Chicago, 4 Biss. 
 460 (1865). 
 
 * Roe V, Kansas City, 100 Mo. 190 
 (1889) ; Johnston v. Charleston, 16 
 Am. R. 721 (1871). See Littlefield v. 
 Norwich, 40 Conn. 408 (1873) ; Gal- 
 vin V. New York, 112 N. Y. 223 
 (1889). 
 
 ' In Elliott on Roads and Streets, 
 at p. 453, it is said : " There is some 
 conflict among the decided cases as 
 to when and under what circum- 
 stances, if at all, cities are bound to 
 erect railings or other safeguards 
 around or about basement areas. If 
 the area or opening extends into the 
 sidewalk, and is of such a character 
 
 as to be palpably dangerous to travel- 
 ers, it would clearly be the duty of the 
 city to erect necessary barriers or to 
 compel the owner either to remove it 
 entirely or make it safe. If, however, 
 the area or entranceway is entirely 
 without the limits of the street, upon 
 private property, but contigfuous to 
 the sidewalk, the duty of the city is 
 not so clear. Thus, in a recent case, 
 it is held that, as areas and basement 
 descents are necessary, in order to 
 properly carry on business in a city ; 
 and, as the city cannot go upon pri- 
 vate property to erect barriers, no 
 duty rests upon it to maintain railings 
 in front of such place, and it is not 
 negligent for failing so to do. Some of 
 the other courts take a similar view of 
 the duty and liability of cities in such 
 cases, but we think that if the opening 
 is notoriously and evidently danger- 
 ous to pedestrians, it is the duty of 
 the city either to provide proper safe- 
 guards or to compel the owner to do 
 so, no matter where the area extends 
 — into the sidewalk, or is merely con- 
 tiguous thereto." Citing cases. See 
 Corcoran v. Peekskill, 108 N. Y. 151 
 (1888); Niblett V. Nashville, 12 Heisk. 
 (Tenn.) 684 (1874). Cf. Martin v. 
 Pettit, 117 N. Y. 118, 5 L. R. A. 794 
 (1890). 
 
190 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 96 
 
 railings ; ^ so if a sidewalk is raised above grade sufficiently 
 to make it dangerous for ordinary use without side pro- 
 tection, barriers should be erected ; ^ and if it passes over 
 or adjoins a ditch or stream, they must also be provided * 
 § 96. Dangerous defects near sidewalk. — If an excava- 
 tion, declivity, or other obstacle to safe travel is beyond 
 the limits of a sidewalk, but yet is near enough to it to 
 be a source of danger to pedestrians who are using the 
 walk, in the exercise of due care, then it should be pro- 
 tected by guards.* If it is not so protected, the sidewalk 
 
 ' District of Col. v. Armes, 107 U. 
 S. 519 (1882) ; Chicago v. Bixby, 84 
 111. 82 (1876); Pfeifer v. Lake, 37 111. 
 App. 367 (1890). 
 
 ' Carterville v. Cook, 129 111. 152 
 (1889), here the sidewalk was not 
 protected with guards, and the vil- 
 lage was held liable to a boy who was 
 pushed over the edge. In Forker v. 
 Sandy Lake Borough, 130 Pa. 123 
 (1889), it was said : " Whether a sub- 
 stantial plank sidewalk in a small 
 country town, which is eight feet wide, 
 in good condition, raised but three or 
 four feet above the surface of the 
 ground and but thirty-four feet long, 
 is sufficiently safe for the travel pass- 
 ing over it, without side railings, is a 
 pure question of fact, to be determined 
 exclusively by a jury upon a consider- 
 ation of all the circumstances." In 
 Portland v. Taylor, 125 Ind. 522, 25 
 N. E. Rep. 459 (1890), where a 12- 
 foot sidewalk was reduced to 3 feet to 
 cross a ditch, and there were no 
 railings, liability was enforced. 
 
 ' Portland v. Taylor, 126 Ind. 522 
 (1890), unprotected walk over a ditch. 
 Cummins v. Syracuse, 100 N. Y. 637 
 (1885), dangerous descent to creek; 
 Galveston v. Posnainsky, 62 Tex. 118 
 (1884), unguarded drain bordering 
 on sidewalk. Supra, § 95 ; infra, 
 
 § 121. 
 
 * Birmingham v. Lewis (Ala.), 9 SOi 
 Rep. 243, sttpra, p. 1 38 ; South Omaha 
 V. Cunningham (Neb.), 47 N. W, 
 Rep. 930 (1891) ; Kinney v. Tekamah 
 (Neb.), 46 N. W. Rep. 835 (1890) ; 
 Halpin v. Kansas City, 76 Mo. 335 
 (1885) ; Mackey v. Vicksburg, 64 
 Miss. 777 (1887); Chicago v. Lang- 
 lass, 66 111. 361 (1872) ; McGrath.v. 
 Bloomer, 73 Wis. 29 (1889). 
 
 Knowlton v. Pittsfield, 62 N. H. 
 535, citing cases ; Indianapolis v. Em- 
 melman, 108 Ind. 530 (1886) ; Malloy 
 V.Walker Tp., ^^ Mich. 448, 6 L. R. A. 
 69s, 43 N. W. Rep. 1012; Sharp v. 
 Evergreen, 67 Mich. 443, 35 N. W, 
 Rep. 67 ; Harris v. Clinton, 64 Mich. 
 447, 31 N. W. Rep. 425 ; Keyes v. 
 Marcellus, 50 Mich. 439 ; Lansing v, 
 Toolan, 37 Mich. 132; Olson v. Chip- 
 pewa Falls, 71 Wis. 558 (1888); Houfe 
 V. Fulton, 29 Wis. 296 (1874) ; Koe- 
 ster V. Ottumwa, 34 la. 41 ; Kelley 
 V. Columbus, 41 Ohio St. 263 ; Quincy 
 V. Barker, 81 111. 300 ; Freeport v. 
 Isbell, 83 111. 440 (1876) ; Chicago v. 
 Hesing, 83 111. 204 ; Chicago v. Gal- 
 lagher, 44 111. 29s ; Joliet V. Verley, 
 39 111. 58 ; O'Leary v. Mankato, 21 
 Minn. 65 ; Nebraska City v. Campbell, 
 2 Black 590 r Carlisle v. Bri^ane, 113 
 Pa. .544 (1886) ; Plymouth v. Graver 
 (Pa.), 17 Atl. Rep. 249; Scott v. 
 Montgomery, '95 Pa. 444(1880) ; Pitts- 
 
§96 
 
 DUTIES RESPECTING SIDEWALKS. 
 
 191 
 
 itself is not in a reasonably safe condition for use ; and 
 on this ground a corporation may be made liable for a 
 dangerous sidewalk upon property which it does not con- 
 trol.^ If, however, the accident happens to one who is 
 
 ton V. Hart, 89 Pa. 389 ; Hoy v. Phila- 
 delphia, 81 Pa. 44, 22 Am. Rep. 733 ; 
 O'Laughlin v. Dubuque, 42 la. 539; 
 Aldrich V. Gorham, 77 Me. 287 ; Burr 
 V. Plymouth, 48 Conn. 460 ; Wilson v. 
 Atlanta, 60 Ga. 473 ; Lewis v. At- 
 lanta, 77 Ga. 756 ; Orme v. Richmond, 
 79 Va. 86 (1884) ; Young v. Dist. of 
 Col., 3 McAr. 137 ; Clark v. Rich- 
 mond, 83 Va. 355 (1887) ; Staples v. 
 Canton, 69 Mo. 592. 
 
 ' In Jewhurst v. Syracuse, 108 N. Y. 
 303, Peckham, J., says : " The place 
 where the accident occurred was 
 outside the actual limits of Tallman 
 street. That street had been legally 
 opened for some years of the width of 
 sixty feet, and the accident happened 
 two or three feet north of its northern 
 boundary, the street running east and 
 west. There had never been any such 
 dedication and acceptance on the part 
 of the owners and the city authorities 
 of that portion of land where the ac- 
 cident happened, as to make it any 
 portion of the public street over which 
 the city had jurisdiction. It had not 
 built the sidewalk or any portion 
 thereof, and never assumed jurisdic- 
 tion over this piece of land. The city 
 had no legal right through its officers 
 to go upon the premises where the 
 accident happened, for it did not own 
 the same. 
 
 " Under these circumstances we 
 think it clear that the city cannot be 
 held to any liability for the condition of 
 the sidewalk outside of the line of the 
 street founded upon any duty to repair 
 such sidewalk ; for, as it did not build 
 it, never assumed control over it, did 
 
 not own, and had no legal right to go 
 upon the land where the plank lay, 
 such duty to repair, or liability for 
 neglect to repair, does not exist. 
 Carpenter v. City of Cohoes, 81 N. Y. 
 21 ; Veeder v. Village of Little Falls, 
 100 Id. 343 
 
 " But there is a class of cases, of 
 which Cogswell v. Inhabitants of Lex- 
 ington, 4 Cush. 307 ; Hayden v. Attle- 
 borough, 7 Gray 338 ; Alger v. City 
 of Lowell, 3 Allen 405, and a number 
 of others, are examples where a city 
 has been liable for failure to guard the 
 boundary of a street under circum- 
 stances which render the roadway 
 dangerous on account of such failure. 
 They are mostly cases where the in- 
 juries were received outside of the 
 legal limits of the highway, but at a 
 spot which was apparently within 
 such limits, and which was rendered 
 dangerous by an obstruction or an 
 excavation, and no step had been 
 taken to guard the traveler from run- 
 ning against or into it while passing 
 along what seemed to be the high- 
 way, and in the exercise of reasonable 
 care and caution 
 
 " Under the finding of the referee 
 this planking outside of the street was 
 and had been for a year in a danger- 
 ous condition, and was so known to 
 be by the city authorities. The walk 
 was rendered dangerous because it 
 was out of repair, and danger from 
 such a source may be quite as great 
 as that arising from an excavation or 
 an obstruction in the road near the 
 highway. I do not see how it can be 
 said as matter of law that the city 
 
192 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 96 
 
 endeavoring to find a private walk, or who strays from 
 the main sidewalk for any purpose, he puts himself 
 beyond the obligation of the corporation, for the side- 
 walk is not to be kept safe for persons who thus wander 
 away from it.^ Where barriers are once erected, to hold 
 
 might be responsible for damages 
 arising from the existence of an ex- 
 cavation or an obstruction, such as a 
 post, and yet free from such liability 
 arising from a sidewalk rendered 
 dangerous from being out of repair. 
 If the sidewalk outside of the limits 
 of the street were dangerous, upon 
 the facts in this case, became out of 
 repair, I think the street itself may be 
 said under the same facts to have 
 been in a dangerous condition, and 
 that the city was liable, so far as this 
 question goes, for injuries arising 
 therefrom. Indeed, the finding of the 
 referee is substantially to the effect 
 that the highway was dangerous be- 
 cause of the condition of the plank 
 just outside of its limits, and as there 
 is evidence to sustain that finding we 
 
 are bound by it in this court 
 
 " Where there is no visible boundary 
 to the line of the street, and a portion 
 of the roadway traveled on is so near 
 the actual line (although really outside 
 thereof) as to induce the belief in any 
 one exercising reasonable care that 
 he is within such line, if such portion 
 is for any reason rendered dangerous 
 for travel and the city has notice 
 thereof in due time, and such danger 
 can be remedied by the exercise of 
 reasonable care, either by the erection 
 of a guard or railing along the true 
 limits of the street, or in some other 
 way, and the city neglects to guard 
 it, we see no reason why it should not 
 be held liable to one who is injured 
 outside of such limits, under such cir- 
 cumstances, he being himself free 
 
 from any neglect contributing to 
 the injury." See Allegheny Co. v. 
 Broadwaters, 69 Md. 533 (1888); 
 Mackey v. Vicksburg, 64 Miss. 777 
 (1887). 
 
 ' Hudson V. Marlborough (Mass.), 
 28 N. E. 147 (1891); Murphy v. 
 Brooklyn, 118 N. Y. 575 (1890); Tay- 
 lor V. Mt. Vernon, 34 N. Y. St. Rep. 
 640, 12 N. Y. Supp. 25 (1889); Damon 
 V. Boston, 149 Mass. 147 (1889); 
 Barnes v. Chicopee, ' 138 Mass. 67 
 (1884); Paine v. Brockton, 138 Mass. 
 564 (1885); Morgan v. HoUowell, 57 
 Me. 375 (1869); Scranton v. Hill, 102 
 Pa. 474 ; Kelley v. Columbus, 41 Ohio 
 St. 263 (1884); Alline v. Le Mars, 71 
 la. 654 (1887); Goodin v. Des Moines, 
 55 la. 67 ; Monmouth v. Sullivan, 8 
 III. App. 50 (1880); Biggs V. Hunting- 
 ton, 32 W. Va. 55 ; Atlanta v. 
 Buchanan, 76 Ga. 585 ; Zettler v. 
 Atlanta, 66 Ga. 195 (1880); Beandeau 
 V. Cape Girardeau, 71 Mo. 392 ; Bas- 
 sett V. St. Joseph, 53 Mo. 290, 14 Am. 
 Rep. 446. 
 
 In Fitzgerald v. City of Berlin, 64 
 Wis. 203 (1885), 51 Wis. 81, 37 Am. 
 R. 814, Cassady, J., said: "We are 
 not prepared to hold that a city is 
 responsible for the existence of a 
 private structure made by a lot owner 
 on his own land entirely outside of 
 the traveled portion of the sidewalk, 
 and not connected therewith in such 
 a way as to endanger the safety of 
 those traveling thereon, even though 
 such structure happens to be within 
 the line of the street as originally sur- 
 veyed. It is only such portions of the 
 
97 
 
 DUTIES RESPECTING SIDEWALKS. 
 
 195 
 
 a municipality liable for an accident occasioned by their 
 absence it must appear that the corporation was negligent 
 after their removal.^ 
 
 § 97. Injuries from falling objects, — Many dangers for 
 pedestrians exist because of objects overhanging side- 
 walks, and it is now well settled that the duty of the 
 municipality to exercise reasonable care to keep walks in 
 a safe condition for use requires that dangers overhead 
 shall be regarded as well as those that relate to the way 
 itself. This obligation has been recognized with respect 
 to an awning,* the branch of a tree,^ a defective pole,* a 
 show-board,® a pile of bricks,® a counter,'' a portion of 
 
 street or highway as have been used 
 by the public for travel thereon which 
 are required to be kept free from de- 
 fects. Matthews v. Baraboo, 39 Wis. 
 677. When the defect complained of is 
 wholly outside of the traveled track 
 or sidewalk used by the public for 
 travel, and not connected therewith 
 so as to endanger the safety of such 
 public travel thereon, there can be no 
 recovery, notwithstanding the same 
 was within the lines of the original 
 survey of the street or highway, and 
 in a private walk leading from such 
 traveled track or sidewalk to a private 
 building, or private place of business. 
 Cartwright v. Belmont, 58 Wis. 373." 
 
 " In Stone v. Attleborough, 140 
 Mass. 326 (1885), wrhere a concrete 
 sidewalk had been laid in front of 
 certain buildings by the owner there- 
 of, and the line of the street sidewalk 
 extended five feet into the concrete 
 walk, and this in turn extended 8^ 
 feet to the buildings, it was held, that 
 town would not be liable for an ac- 
 cident happening outside the limits of 
 the highway. Stockwell v. Fitchburg, 
 1 10 Mass. 305 ; Sullivan v. Boston, 1 26 
 Mass. 540." 
 
 See supra, § 83. 
 13 
 
 ' Weiss V. Jones Co., 80 la. 351, 29 
 Am.&Eng.C.C.470 (1890); Thiessen 
 V. Bell Plain (la.), 46 N. W. 854 (1890); 
 Klatt V. Milwaukee, 53 Wis. 200. In- 
 fra, §110. 
 
 t^eling V. Brooklyn, 120 N. Y. 98 
 (1890) ; JHume v. New York, 74 N. 
 Y. 264 (1878) ; Bohen v. Waseca, 32 
 Minn. 176, 52 Am. Rep. 564 (1884) ; 
 Gainesville v. Caldwell, 81 Ga. 76 
 (1888) ; Drake v. Lowell, 54 Mass. 
 292 (1847) ; Day v. Milford, 87 Mass. 
 98. 
 
 ' Gubasko v. New York, 12 Daly 
 (N. Y.) 183 (1883) ; Vosper v. New 
 York. 49 N. Y. Super. Ct. 296 (1883) ; 
 Jones V. New Haven, 34 Conn. I 
 (1867). 
 
 * Norristown v. Moyer, 67 Pa. 355 
 (1871) ; Gilmartin v. New York, 55 
 Barb. 239. 
 
 ' Langan v. Atchison, 35 Kas. 318, 
 57 Am. R. 165 (1886). But see West 
 V. Lynn, no Mass. 514(1872) ; Jones 
 V. Boston, 104 Mass. 75 (1870). 
 
 « Rehberg v. New York, 91 N. Y. 
 137 (1883). 
 
 ' Kurz V. Troy, 104 N. Y. 344 
 (1887). Compare Duffy v. Dubuque. 
 63 la. 171, 50 Am. Rep. 743 (1884). 
 
194 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 97 
 
 roofing,^ a derrick beside the road,* and dangerous walls 
 adjoining the highway.* 
 
 And the principle upon which these cases rest would 
 include any case where the corporation was guilty of 
 neglecting to use reasonable care to discover, and to pro- 
 tect those using its sidewalks from overhanging objects 
 which threatened danger.* For where the common-law 
 rule of liability prevails, there does not seem to be any 
 merit in the distinction between objects that are attached 
 to the sidewalk and are used as a part of it, and other 
 overhanging objects, however important this distinction 
 may be where the liability is statutory.* 
 
 ' Grove v. Fort Wayne, 45 Ind. 429 
 (1874) ; Larson v. Grand Forks, 3 
 Dak. 307 (1884). 
 
 'Hardy v. Keene, 52 N. H. 370 
 (1872). 
 
 ^ Anderson v. East, 117 Ind. 126; 
 Cain V. Syracuse, 95 N. Y. 83 (1884) ; 
 Kansas City v. Kiley, 87 Mo. 103, 13 
 Am. & Eng. C. C. 446; Parker v. 
 Macon, 39 Ga. 729 (1869). Supra, 
 § 35. One who adjoins the high- 
 way is under the duty of warning the 
 public of a dangerous wall on his 
 property, which is likely to injure 
 passers by. Silverton v. Mariott, 59 
 L. J. 61 (1890) ; Grogan v. Broad- 
 way Foundry Co., 87 Mo. 321 (1885). 
 For duties of owners of property ad- 
 joining highways, see Reardon v. 
 
 Thompson, 149 Mass. 267 ; Ray on 
 Negligence of Imposed Duties, Per- 
 sonal, pp. 26-33. 
 
 *In Embler v. Wallkill, 57 Hun 
 384 (1890), the plaintiff was pushed 
 off a load of hay by a branch of a tree 
 which obstructed travel, and he was 
 allowed recovery. See also Balti- 
 more V. O'Donnell, 53 Md. 1 10 (1879); 
 French v. Brunswick, 21 Me. 29 
 (1842), But see Barber V. Roxbury, 
 93 Mass. 318 (1865); /«/>■«, §128; 
 Elliott on Roads and Streets, p. 454. 
 
 * See West v. Lynn, 100 Mass. 514 
 (1872) ; Jones v. Boston, 104 Mass. 
 75 (1870) ; Taylor v. Peckham, 8 R, 
 I. 349 (1866). As to liability for 
 overhanging ice or snow, see I'n/ra, 
 §104. 
 
CHAPTER XII. 
 
 SNOW AND ICE ON STREETS AND SIDEWALKS. 
 
 S 98. Duty respecting snow in streets. 
 99. Various views of ice on sidewalks. 
 100. Difference of opinion in part due to locality. 
 loi. Corporation must be negligent to create liability. 
 
 102. Rule that mere slipperiness is not enough to create liability. 
 
 103. Ice in ridges. 
 
 104. Structural defects. 
 
 105. Provisions in statutes affecting liability. 
 
 § 98. Duty respecting snow in streets or roads. — The 
 courts do not put a severe burden upon municipal cor- 
 porations with respect to snow in streets or roads. For 
 it is only in such cases as where mounds of snow and ice 
 are negligently allowed to remain in a street, or where 
 there is an unreasonable delay in making a road passable, 
 or where there is some defect in the way itself, that is made 
 more dangerous by the snow, that the municipality will 
 be held responsible for injuries occasioned by its pres- 
 ence in the street.* In the country entire inaction is 
 sometimes excusable, and the fact that a road was im- 
 passable from snow for three months has been held in- 
 sufficient evidence of negligence.^ The duty of the road 
 
 ' Compare Haves v. Cambridge, ley v. Litchfield, 49 Conn. 134, 44 
 136 Mass. 402 (1884) ; Gerald v. Bos- Am. R. 213 (1881) ; Bleakley v. Press- 
 ton, 108 Mass. 580 (1871) ; Dixon v. cott (Can.), 12 O. R. 637; Coates v. 
 Brooklyn City, etc. Railroad Co., 100 Canaan, 51 Vt. 131 ; Stafford v. Os- 
 N. Y. 170 (1885); Christopher St. kaloosa, 64 la. 251 (1884); Griffin v. 
 Railroad Co. V. New York, I Abb. N. Sanbornton, 44 N. H. 246 (1862); 
 C. 75 ; Reed v. New York, 31 Hun Rogers v. Newport, 62 Me. loi. 
 311 (1883), 97 N. Y. 620; Battersby * Burr v. Plymouth, 48 Conn. 460 
 V. New York, 7 Daly 16 (1887) ; Lan- (1880). 
 dolt v. Norwich, 37 Conn. 615; See- 
 
196 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § 99 
 
 authorities is largely influenced by the character of the 
 road and the custom of the people in that vicinity.* It 
 has also been held that there is no liability for defects in 
 a temporary road worked around a snow-drift.* 
 
 § 99. Various views of ice on sidewalks. — The presence 
 of ice on city sidewalks, however, has been a fruitful 
 source of litigation, both in the States where the com- 
 mon-law rule of liability prevails and in those where the 
 obligation is defined by statute. And many diverse 
 views have been expressed. The law upon the subject 
 cannot be said to be yet settled by any general agree- 
 ment of the courts, and in some localities it is held that 
 smooth, level ice never constitutes a defect, however long 
 it may be left on the walk,^ while in others the presence 
 of such an impediment to travel is looked upon quite 
 differently, and municipalities are held responsible for 
 not exercising reasonable care to remove or remedy de- 
 fects from this cause.* So, what must be done to bring a 
 corporation within a reasonable performance of its doty 
 with respect to the removal of "ridgy" or uneven ice is 
 a matter much discussed and about which opinions differ 
 materially. 
 
 § 100. Difference of opinion in part due to locality. — It 
 is believed that this difference of opinion is at least par- 
 tially due to locality, for the cases show the influence of 
 the point of view of the courts in which they have been 
 decided. And this is not surprising ; for, in a climate 
 where snow and ice exists almost constantly through the 
 winter season, the requirements of the duty to exercise 
 reasonable care to keep the streets safe for use would not 
 
 ' Seeley v. Litchfield, 49 Conn. 134, it is said that the middle of a road 
 
 44 Am. R. 213. may be assumed to be the traveled 
 
 ' Bogie V. Waupan, 75 Wis. i, 43 part when it is covered with snow. 
 N. W. Rep. 667. But see Savage v. » Infra, % lo^. 
 Bangor, 40 Me. 176 (1855). In Car- * Infra, n. 2, p. 201. 
 lisle v. Brisbane, 9 East. Rep. 141, 
 
§ lOI SNOW AND ICE ON SIDEWALKS. 1 97 
 
 oblige a corporation to attempt to accomplish that which 
 is practically impossible. In such a climate, to keep the 
 sidewalks clear would require extraordinary and unrea- 
 sonable care, and the common law puts no such obliga- 
 tion on a municipality. In other localities where snow 
 and ice, although not unusual, are by no means continu- 
 ous, with the exercise of reasonable care and by the out- 
 lay of moderate expense, the walks usually can be kept 
 free from dangerous ice of all kinds. And to require 
 that the municipalities in such places shall exercise rea- 
 sonable care to accomplish this, puts no obligation upon 
 them which is not within the fair interpretation of their 
 general duty. And what effort will constitute reasonable 
 care in any particular locality, must be in a measure de- 
 termined with reference to the climate of that place. 
 
 § loi. Corporation must be negligent to be liable. — It is 
 important to observe that the foundation of the action 
 against the municipality is neglect of duty by the author- 
 ities. To establish this the facts of the particular case 
 presented must be examined in order that it may appear 
 from them that the care and conduct of the authorities 
 with reference to those facts was not reasonable. These 
 facts will disclose the locality of the accident, the length 
 of time the defects have existed, and the condition of the 
 weather during this time, and will show what has been 
 done to remedy the difficulty and all the surrounding cir- 
 cumstances attendant upon the case. It is reasonable 
 for the corporate authorities to consider the general char- 
 acter of the climate, the condition of the weather about 
 the time of the injury, and to wait a sufficient time to 
 enable landowners to clear off their own walks.^ So 
 
 ' In Taylor v. Yonkers, 105 N. Y. safe and convenient for the passage 
 
 •202 (1887), Finch, J., says: "This of the public, so far as reasonable 
 
 case was submitted to the jury under diligence and the possession of ade- 
 
 instructions that a municipal corpora- quate resources will allow ; and the 
 
 'tion is bound to keep its sidewalks application of this rule to conditions 
 
198 MUNICIPAL DUTIES- — GOVERNMENTAL AFFAIRS. § loj 
 
 where the ice is brought about by a sudden freezing, it is 
 unreasonable to require that the authorities should cover 
 
 resulting from the rigors and changes 
 of a northern winter, and to two 
 emergencies which frequently occur, 
 was very fairly and justly discussed 
 and limited. It often happens that in 
 a single day or night every street and 
 sidewalk in a city or village is covered 
 with a heavy fall of snow. It is not 
 expected and cannot be required that 
 the corporation shall itself forthwith 
 employ laborers to clear all the walks, 
 and so accomplish the object by a 
 slow and expensive process, when the 
 result may be effected more swiftly 
 and easily by imposing that duty upon 
 the citizens. Each can promptly and 
 without unreasonable burden clean 
 the snow from his own premises, and 
 the authorities may justly and law- 
 fully require that to be done under 
 the jurisdiction conferred by their 
 charters. But though the municipal- 
 ity makes the necessary regulation, it 
 is not thereby relieved from respon- 
 sibility. The duty remains, and it 
 must, therefore, see to it that its ordi- 
 nance is obeyed. It is entitled, how- 
 ever, to a reasonable time within which 
 to perform the duty in the manner 
 permitted, and is not guilty of negli- 
 gence, if, observing that the work is 
 being generally done, it awaits for a 
 reasonable period the action of the 
 citizens. But when such reasonable 
 time has been given, the corporation 
 must compel the adjoining owners or 
 occupants to act, or do the work 
 itself, and if it suffers the obstructions 
 to remain thereafter, with notice, act- 
 ual or constructive, of its existence, 
 it may become responsible for injuries 
 resulting. Another and different 
 emergency sometimes occurs, and 
 was referred to in the charge to the 
 jury. When the streets have been 
 
 wholly or partially cleaned, it often 
 happens that a fall of rain or the 
 melting of adjoining snow is suddenly 
 followed by severe cold, which covers 
 everything with a film or layer of ice, 
 and makes the walks slippery and 
 dangerous. This frozen surface it is 
 practically impossible to remove until 
 a thaw comes, which remedies the 
 evil. The municipality is not neg- 
 ligent for awaiting that result. It 
 may and should require householders, 
 when the danger is great, to sprinkle 
 upon the surface ashes or sand or the 
 like, as a measure of prudence and 
 precaution, but is not responsible for 
 their omission. It is no more bound 
 to put upon the ice, which it cannot 
 reasonably remove, such foreign ma- 
 terial than to cover it with boards. 
 The emergency is one which is com- 
 mon to every street in the village or 
 city, and which the corporation is 
 powerless to combat. Usually it lasts 
 but a few days, and the corporate au- 
 thorities may await without negligence 
 a change of temperature which will 
 remove the danger." In Keane v. 
 Waterford, 29 N. E. Rep. 130, 29 
 N. Y. St. Rep. 340 (1890), it was 
 held that whether four full days was 
 a reasonable time for the authori- 
 ties to wait for the lot owners to 
 clear a sidewalk was a question 
 for the jury; O'Connor v. New 
 York, 29 N. Y. St. Rep. 502 (1890), 
 forty-eight hours between snowfall 
 and accident is not sufficient to charge 
 the authorities with negligence; see 
 Betts V. Gloversville, 29 N. Y. St. 
 Rep. 331 (1890); Winne v. Albany, 
 15 N. Y. Supp. 423, 39 N. Y. St. Rep, 
 602 (1 891), no liability for a ridge 
 formed by fresh snow ; cf. Johnson v. 
 Glens Falls, 16 N. Y. Supp. 585 i 
 
§IOI 
 
 SNOW AND ICE ON SIDEWALKS. 
 
 199 
 
 all the city sidewalks with ashes.^ Each member of the 
 public as well as the corporation has notice of the exist- 
 ence of the danger, and can exercise particular care to 
 protect himself from it. 
 
 Woodcock V. Worcester, 138 Mass. 
 268. 
 
 ' Harrington v. City of Buffalo, 121 
 N. Y. 147 (1890), Ruger, Ch. J., says : 
 " The evidence established the fact 
 that for four days previous to the 
 accident the weather had been warm, 
 causing the snow and ice on the walk 
 to thaw and becon:ie soft, wet, and 
 sloppy. On the night previous to the 
 accident the weather suddenly became 
 colder, and the snow and slush in the 
 streets froze hard, forming ice and 
 leaving footprints made during the 
 previous sloppy weather plainly visible 
 in the frozen deposit. In some places 
 the owners of property adjoining the 
 walk had cleaned off the snow, but at 
 the place of the accident it had not 
 for some weeks been entirely removed. 
 Much of the snow falling during that 
 time had passed off through the nat- 
 ural effect of the elements upon it, 
 but the portion referred to was what 
 remained of a much larger accumula- 
 tion. The walk, as thus shown, pre- 
 sented no unusual appearance for 
 cities in our uncertain and inclement 
 climate, and caused no more objec- 
 tionable obstacle to safe passage than 
 frequently exists in cities and villages 
 during the cold season. Whatever 
 might have been its condition, so far 
 as to danger was to be apprehended, 
 it arose solely from its frozen and slip- 
 pery condition, and that, as we have 
 seen, was caused by the freezing of 
 the night before the accident. The 
 danger arising from the slipperiness 
 of ice or snow lying in the streets is 
 one which is familiar to everybody 
 residing in our climate, and which 
 
 every one is exposed to who has occa- 
 sion to traverse the streets of cities 
 and villages in the winter season 
 
 " The duty resting upon municipal 
 corporations to remove accumula- 
 tions of ice and snow, as it falls from 
 time to time upon their streets, is a 
 qualified one, and becomes imperative 
 only when dangerous formations or 
 obstacles have been created and no- 
 tice of their existence has been re- 
 ceived by the corporation. Hunt v. 
 Mayor, etc., 109 N, Y. 134. Actual 
 notice to the public authorities is not, 
 in all cases, required, and it has been 
 held that negligence may be inferred 
 from the omission by the corporation 
 to cause dangerous obstructions to be 
 removed from the streets after suffi- 
 cient time has elapsed to afford a pre- 
 sumption of knowledge of their exist- 
 ence and an opportunity to effect their 
 removal. If ' there has elapsed such 
 length of time as that the defect has 
 become known and notorious, and 
 there has been full opportunity for 
 the municipality, through its agents 
 charged with that duty, to learn the 
 existence of the defect,' an omission 
 to remove it within a reasonable time 
 has been held to be sufficient to au- 
 thorize a finding of negligence against 
 the corporation. Requa v. City of 
 Rochester, 45 N. Y. 136. 
 
 " The principles regulating the lia- 
 bility of municipal corporations for 
 injuries occasioned by accidents 
 through the slipperiness of sidewalks 
 have been the subject of frequent dis- 
 cussion recently in this court, and the 
 cases decided fully support the con- 
 clusion reached by us in this case. 
 
200 MUNICIPAL DUTIES— GOVERNMENTAL AFFAIRS. § 102 
 
 ; § 102. Rule that mere slipperiness is not sufficient to 
 create liability.— Numerous authorities uphold the general 
 rule that mere slipperiness will not give rise to liability.' 
 It may be conceded that where there is an icy covering 
 over all the sidewalks of a city, or where there is no 
 evidence to show that the authorities knew, or should 
 
 and render further discussion unnec- 
 essary. Taylor v. City of Yonkers, 
 105 N. Y. 209; Kaveny v. City of 
 Troy, 108 Id. 571 ; Kinney v. City of 
 Troy, Id. 567." 
 
 See Keith v. Brockton, 136 Mass. 
 119. 
 
 ' In Henkes v. Minneapolis, 42 
 Minn. 530 (1890), it was said in ref- 
 erence to keeping sidewalks free from 
 ice: "In this climate such a thing 
 would be a physical impossibility, 
 and an attempt to do it would involve 
 an amount of expense that would 
 bankrupt any city." 
 
 In Bell V. York (Neb.), 48 N. W. 
 Rep. 878 (1891), it was held that the 
 fact that a sidewalk was slippery was 
 not sufficient to impose liability on a 
 municipal corporation. Foxworthy v. 
 Hastings, 23 Neb. 772 ; Nebraska 
 City v. Kathbone, 20 Neb. 289, 29 N. 
 W. Rep. 290. 
 
 In Broburg v. Des Moines, 63 la. 
 523, 19 N. W. Rep. 340 (1884), it was 
 said : " The better rule is that it is 
 only when ' ice or snow is suffered to 
 remain upon a sidewalk (or street- 
 crossing) in such an uneven and 
 rounded form that a person cannot 
 walk over it, using due care, without 
 danger of falling down, that it seems 
 to constitute a defect for which the 
 city or town is liable.' Cook v. Mil- 
 waukee, 24 Wis. 274. The mere fact 
 that a street is in a dangerous condi- 
 tion because of ice and snow, render- 
 ing the walks and crossings slippery 
 by reason of the operation of natural 
 
 causes, should not render the city 
 liable, even if such ice and snow are 
 not removed in a reasonable time. 
 But when it becomes, by reason of 
 the travel thereon, or other causes, 
 rounded or in ridges, then it may be 
 that the city should be required to re- 
 move such ice and snow,"— -overrul- 
 ing Collins V. Council Bluffs, 32 la. 
 
 324- 
 
 See also Grossenbach v. Milwaukee, 
 63 Wis. 31, 26 N. W. Rep. 182, 56 
 Am. R. 614 ; Hill v. Fond du Lac, 56 
 Wis. 242, 14 N. W. Rep. 25 ; Stilling 
 V. Thorp, 54 Wis. 528, 11 N. W. Rep. 
 906; Cook V. Milwaukee, 24 Wis. 274; 
 Chase v. Cleveland, 44 Ohio St. 505, 
 6 W. Rep. 817, I Ry. & Corp. L.J. 
 331 (1886) ; Chicago v. McGiven, 78 
 111. 347 (1875); Aurora v. Parks, 21 
 111. App. 459 (1885) ; Gibson V. John- 
 son, 4 111. App. 288 (1879); Mauch 
 Chunk V. Kline, 100 Pa. 119; Smyth 
 V. Bangor, 72 Me. 249 ; McKean v. 
 Salem, 148 Mass. 109 (1888) ; Olsen 
 V. Worcester, 142 Mass. 536, 3 N. E. 
 Rep. 77 ; Gilbert v. Roxbury, 100 
 Mass. 185 (1868) ; Stanton v. Spring- 
 field, 94 Mass. 566 (1866) ; Nason v. 
 Boston, 96 Mass. 508; Johnson v. 
 Lowell, 94 Mass. 572 ; Boulder v, 
 Niles, 9 Col. 415 (1886) ; Anderson v. 
 Wilmington (Del.), 10 L. R. A. 181 
 (1889); Dillon on Munic. Corp., 
 § 1006. But slipperiness caused by an 
 accumulation of ice in a hollow place 
 in the sidewalk may constitute a de- 
 fect in Massachusetts. Adams v. 
 Chlcopee, 147 Mass. 440 (1888). 
 
§ I02 
 
 SNOW AND ICE ON SIDEWALKS. 
 
 20I 
 
 have known, of a slippery condition at a particular place,^ 
 there is no liability. But it is believed that the presence 
 of slippery ice at a particular place on a public sidewalk, 
 of which the city has notice, and which renders the 
 walk dangerous, should give rise to municipal respon- 
 sibility for damage that it occasions in all localities 
 where the duty to keep the walks reasonably free from 
 ice is recognized.* If in some localities it is deemed 
 
 ' Supra, n. I, p. 197. 
 
 Kinney v. Troy, 108 N. Y. 567 
 (1888), where a patch of smooth ice 
 on the sidewalk occasioned the in- 
 jury, Danforth, J., says : " That this 
 city may be liable to a traveler for 
 injuries occasioned by sidewalks un- 
 safe in consequence of an accumulation 
 pf ice, is not to be questioned. Todd 
 V. City of Troy, 61 N, Y. 506. But 
 here there was no accumulation, and 
 it can scarcely be said there was un- 
 evenness at the place of the accident. 
 On the contrary, the ice was all in one 
 sheet, 'just alike,' and of recent for- 
 mation. Three days before the side- 
 walk 'was all right." It had been 
 thawing the day before, and the day 
 before that. The sidewalk itself was 
 in good order. A city is not bound 
 to keep its sidewalks absolutely free 
 from ice, and we think the learned 
 trial-judge erred in submitting the 
 case to the jury as one in which they 
 might find that it had been guilty of 
 some neglect of duty in regard to it. 
 There was no ground for such specu- 
 lation. It does not appear that ordi- 
 nary care had not been exercised to 
 keep the walk safe for use in the 
 usual mode by travelers, nor that it 
 was not so. We are unable to find 
 any evidence that its condition was 
 such as should have been noticed by 
 the ofl[icers of the city or its police, 
 and there is no suggestion from any 
 
 quarter that their attention had been 
 called to it. The situation was one 
 common to all cities in a northern 
 climate, and to all sidewalks in such 
 cities. A sidewalk, difficult it may be 
 of passage, but if so, from the ordinary 
 action of the elements only, and from 
 a formation of ice which no body of 
 men are competent to prevent, nor 
 under any ordinary circumstances to 
 remove. Something more than a slip- 
 pery sidewalk must be shown to en- 
 able one suffering from it to cast the 
 burden of compensation upon the 
 city. Nothing more appears here, 
 and, we think, the motion of the de- 
 fendant for a dismissal of the com- 
 plaint should have been granted." 
 See Smith v. Brooklyn, 36 Hun 224 
 (1885), affi'd 107 N. Y. 655 ; MuUer 
 v. Newburgh, 32 Hun 24 (1884), affi'd 
 105 N.Y.668; Tracey v. Poughkeepsie, 
 46 Hun 569 (1887); Foley v. Troy, 45 
 Hun 397 (1887) ; Corbett v. Troy, 53 
 How. 228 ; Reich v. New York, 12 
 Daly 72 ; Smid v. New York, 49 N.Y. 
 Super. Ct. 126 (1883) ; Ringland v. 
 Toronto, 23 U. C. C. P. 93 (1873) ; 
 Burns v. Toronto, 42 N. C. Q. B. 560 
 (1878). 
 
 ' In Cloughessey v. Waterbury, 51 
 Conn. 405 (1883), Loomis, J., says: 
 "At first the contention before the 
 courts was strong, that duty and lia- 
 bility must cease where structural de- 
 fects ended. This objection was soon 
 
202 MUKICIPAL DUTIES — <;OVERNMENTAL AFFAIRS. § 102 
 
 reasonable to allow this slippery condition to continue 
 through the winter, there is no negligence in permitting 
 it to do so, but it would seem that one and the same rule 
 should be applied to smooth and uneven ice, and that if 
 
 brushed away, and the liability of 
 towns and cities was extended to 
 other things having no connection 
 with the structure of the road or walk, 
 but which might obstruct or imperil 
 the traveler. 
 
 " Then it was contended that snow 
 and ice, coming solely at the will of 
 Providence, must surely be beyond 
 the purview of a town's duty relative 
 to its removal ; but it was soon gen- 
 erally conceded by the courts every- 
 where that towns and cities must be 
 held to owe some duty even in regard 
 to ice and snow upon the public 
 streets and sidewalks, but it was in- 
 sisted that the duty must be restricted 
 to ice found in ridges upon the side- 
 walk, and could not be extended to 
 smooth and level ice however slippery. 
 And here at the outset we concede 
 that there is a strong array of author- 
 ities from different States sustaining 
 this position, but they all follow and 
 count upon the leading case in Massa- 
 chusetts, of Stanton v. Springfield, 12 
 Allen 566, to which we will again re- 
 fer." .... Then quoting from Cro- 
 marty v. Boston, 127 Mass. 329, where 
 a cover made partly of iron and partly 
 of glass was level with the rest of the 
 sidewalk, but which, by becoming 
 worn and smooth, occasioned the in- 
 jury ; and it was contended that this 
 was not a defect, the opinion con- 
 tinues : ... . " If a walk is construct- 
 ed of material so smooth and hard 
 that travelers shod in the ordinary 
 way are defeated or obstructed irt 
 their attempts to pass over it by ina- 
 bility to get the hold upon it with 
 their feet which is necessary to their 
 
 walking forward or the want of which 
 causes them to lose their balance and 
 fall, such walk cannot be said, as 
 matter of law, to be safe and conveni- 
 ent. And if in a sidewalk, the chief 
 part of which is in a proper condition 
 for travel, a small part of the surface 
 is constructed of material different 
 from the remainder, and so smooth 
 and slippery that a foot traveler step- 
 ping suddenly upon it from the por- 
 tion otherwise constructed, necessa- 
 rily or probably slips and is likely to 
 fall, it cannot be said as matter of law 
 
 that such walk is not defective 
 
 It is contended that if a city is held 
 liable, the same liability must be ex- 
 tended to country towns and country 
 roads." .... 
 
 In Landolt v. City of Norwich, 37 
 Conn. 615, Seymour, J., alluding to 
 this point, says : " The peril is not 
 such as to warrant the great expense 
 in a sparsely inhabited village of 
 attempting a preventive or a remedy ; 
 but in cities the aggregate of peril by 
 reason of the numbers exposed to it 
 becomes considerable, and the means 
 of meeting the needful experience are 
 ample ; and hence in cities the public, 
 as such, properly undertake the duty 
 of doing the best they can to provide 
 against the dangers of travel which 
 winter, in this climate, necessarily 
 brings. Well-cleaned pavements are 
 justly felt to be convenient and neces- 
 sary. The underlying principle is one 
 and the same, namely : that the care 
 to be exercised by the municipality is 
 a reasonable one, which must take 
 into view all the circumstances ; but 
 the result is that the standard of dili- 
 
§ 103 SNOW AND ICE ON SIDEWALKS. 203 
 
 it is an actionable defect to allow a sidewalk to be danger- 
 ous from the latter, it should be a similar defect to per- 
 mit it to be equally dangerous from the former. 
 
 § 103. Ice in ridges. — But the statutes providing for the 
 liability of municipalities in the New England States 
 were directed primarily at obstructions in the way,* and 
 it was only when ice or snow was formed into such a 
 ishape that it became a visible obstruction that the re- 
 sponsibility for its continuance in the highways was at 
 first recognized. Smooth, level ice was not within the 
 limits of the Massachusetts statute,* and therefore no lia- 
 bility was put upon a municipality for negligence occa- 
 sioned by mere slipperiness. The distinction thus cre- 
 ated was extended into States where the general liability 
 is not statutory, and where it is believed no such forced 
 and arbitrary line should be drawn. The fact, however, 
 remains that a liability for negligence respecting ridgy 
 and uneven ice on sidewalks is quite generally held to 
 
 gence and duty is not necessarily the was in a reasonably safe condition, 
 
 same in cities as in sparsely settled and whether those who were bound 
 
 towns." .... to keep the road in repair are justly 
 
 In Corigdon v. City of Norwich, 37 chargeable with negligence and want 
 
 Conn. 419, Seymour, J., in giving the of reasonable care in relation to it." 
 
 opinion of the court, says : " When See also Gaylord v. New Britain, 58 
 
 an ice-stonn covers the entire surface Conn. 398 (1890); Dooley v. Meriden, 
 
 of the earth with ice the public au- 44 Conn. 117; Hartford v. Talcott, 
 
 thorities cannot be expected to scat- 48 Conn. 532 ; Smith v. Chicago, 38 
 
 ter sand and ashes upon all places of Fed. Rep. 388 (1889); Darling v. 
 
 public travel within their limits; .... Westmoreland, 52 N. H. 413; Hub- 
 
 but it has become familiar law in Con- bard v. Concord, 35 N. H. 52 (1857); 
 
 necticut, that some duty in regard to Baltimore v. Marriott, 9 Md. 160 
 
 snow and ice devolves upon cities and (1856). See infra, % 104, 
 
 towns. Accumulation of snow and ' Infra, %% 126, 127. 
 
 ice may produce such a condition of ' Stanton v. Springfield, 94 Mass. 
 
 the road as to cause it to be danger- 566 (1866) ; Providence v. Clapp, 17 
 
 ous and defective, and in each particu- How. 164 (1854), where the former 
 
 lar case of alleged defect from such Rhode Island statute is considered 
 
 cause, the question will depend upon and the question is fully discussed, 
 
 an inquiry of fact, whether under all For outline of the present statute in 
 
 the circumstances of the case the road that State, see infra, § 1 28. 
 
204 MUNICIPAL DUTIES-— GOVERNMENTAL AFFAIRS. § I03 
 
 exist in all localities.' It is not intended to assert that 
 the fact of the formation of ice in a ridge is not an im- 
 portant one, for it is a fact that has much bearing upon 
 the questions of notice to and neglect by the authorities, 
 but it is contended only that the one rule requiring the 
 exercise of reasonable care by the corporation should be 
 applied both to ice that has been formed into ridges and 
 ice that is level, smooth and treacherous. In every in- 
 stance notice of the existence of the defect is an essen- 
 
 ' In Paulson v. Pelican, 48 N. W. 
 Rep. 715 Wis. (1891), it is said: "It 
 has long been the settled doctrine of 
 this court that if snow or ice has been 
 allowed to accumulate on a way or 
 walk, and to become so rough or un- 
 even as to make it dangerous to those 
 traveling on it, it is such a defect as 
 to make the town liable for injury 
 caused by it to one traveling upon 
 it." McDonald v. Ashland rWis.), 47 
 N. W. Rep. 434 {1890); Norton v. St. 
 Louis, 97 Mo. 537 (1888); Mauch 
 Chunk V. Kline, 100 Pa. 119; Mc- 
 Laughlin V. Corry, 77 Pa. 109 (1874). 
 
 In Morse v. Boston, 109 Mass. Rep. 
 446 (1872), Chapman, C. J., says: 
 "The expressions of the female plain- 
 tiff, which are relied upon by the de- 
 fendants, are to be taken together 
 with the other evidence ; and the jury 
 would be authorized to find upon all 
 the evidence, that the ' hubbly ' sur- 
 face of the ice made its mere slipperi- 
 ness more dangerous ; and a major- 
 ity of the court are of opinion that the 
 evidence authorized the jury to find 
 that the highway was defective, with- 
 in the recently decided cases of Lu- 
 ther V. Worcester, 97 Mass. 269 ; 
 Hutchins v. Boston, lb. 272, note ; 
 Street v. Holyoke, 105 Mass. 82, and 
 Fitzgerald v. Woburn, ante, 204." 
 See also Gerald v. Boston, 108 Mass. 
 580(1871); Payne V. Lowell, 92 Mass. 
 
 147 ; Williams v. Lawrence, 113 Mass. 
 506 ; Keane v. Waterford, 29 N. E. 
 Rep. 130, 45 Alb. L.J. 156 (1891). 
 
 Sherman & Redfield on Neg., 4th 
 ed., § 363. Dillon on Munic. Corp., 
 4th ed., §§ 1006, 1007. 
 
 In Elliott on Roads and Streets, at 
 p. 458, it is said : " When a munici- 
 pal corporation has permitted snow 
 and ice to accumulate and remain 
 upon its sidewalks for an unreason- 
 able time in a rounded, uneven, and 
 dangerous condition, and an injury 
 occurs by reason thereof to one who 
 is properly using the walk and exer- 
 cising ordinary and reasonable care, 
 the municipality will be liable to him 
 in damages. Where, however, there 
 is no fault in the construction of the 
 way, and the ice or snow has formed 
 with a smooth and even surface, the 
 municipality will not be liable for an 
 accident merely because the ice or 
 snow was slippery ; nor will it, ordi- 
 narily, be liable in any case until suf- 
 ficient time has elapsed to clear away 
 the ice or snow. Its liability is based 
 on negligence, and whether it has 
 been negligent or has exercised due 
 care must depend upon the circum- 
 stances of each case, such as the 
 amount of snowfall, the condition of 
 the weather, the form of the snow or 
 ice, and the length of time it has been 
 suffered to remain upon the sidewalk." 
 
I04 
 
 SNOW AND ICE ON SIDEWALKS. 
 
 205 
 
 tial feature of the case,' for without such notice, actual 
 or constructive, the corporation cannot be chargeable 
 with neglect. 
 
 § 104. Structural defects causing accumulations of ice. — 
 If the corporation allows its walks or gutters to be out 
 of repair, or permits the discharge of water from adjoin- 
 ing houses to be obstructed, its own act of wrong-doing 
 contributes to the accumulation of dangerous ice on the 
 sidewalk, and it will be held liable on this ground.^ In 
 
 ' Stanton v. Salem, 145 Mass. 476, 
 5 N. E. Rep. 429 (1888) ; Fortin 
 V. Easthampton, 145 Mass. 196, 5 
 N. E. Rep. 162. See 27 Alb. L. J. 
 227. 
 
 Supra, § 102 ; infra. Chapter XX. 
 
 ' Gillrie v. Lockport, 1 22 N. Y. 403 
 (l889),Parker, J.,says: " Theevidence 
 tends to show that the sidewalk in that 
 vicinity, except at the place of the ac- 
 cident, was free from ice. Its pres- 
 ence there was due to the fact that 
 at this point water was conducted 
 from the roof of an adjoining building 
 by means of a conductor-pipe into a 
 gutter channeled into the surface 
 stone of the sidewalk to the curb- 
 stone, which prior to the date in 
 question had become disjointed and 
 broken, so that instead of the water 
 being led directly to the gutter, it to 
 some extent poured out of the broken 
 places, and ran over on to the side- 
 walk. One of the gutter stones had 
 also become broken, and the broken 
 piece was elevated at one end and 
 depressed at the other ; so that it 
 checked in some measure the flow of 
 water toward the gutter, and contrib- 
 uted to make the sidewalk at that 
 point rough and uneven whenever 
 a lowering temperature caused the 
 water thus retained to congeal. 
 
 " Without further reciting the facts, 
 it is sufficient to say that we agree 
 
 with the learned judge at General 
 Term, that this case does not come 
 within the rule established in MuUer 
 V. City of Newburgh, 32 Hun 24, 105 
 N. Y. 668, and Taylor v. City of 
 Yonkers, 105 Id. 202, because the 
 dangerous condition of the sidewalk 
 was not due to natural causes, but 
 rather to artificial ones, and thus the 
 finding of the jury that the defendant 
 was negligent comes within the pro- 
 tection of Todd V. City of Troy, 61 
 
 N. Y. 506 
 
 "It was competent to show that 
 the sidewalks had been in an unsafe 
 condition by reason of the accumula- 
 tion of ice for a period of time previous 
 to the happening of the accident. In- 
 deed, it was necessary to show in the 
 event of a failure to prove that the 
 defendant had actual notice of the 
 condition of the sidewalk at this place, 
 that it had been in that condition for 
 such a length of time that the de- 
 fendant ought to have known it, and, 
 therefore, chargeable with construc- 
 tive notice of its actual condition. In 
 the attempt to make such proof it has 
 been held competent to permit one 
 who is giving testimony as to the 
 condition of the sidewalk to testify 
 that he had fallen himself. It tends 
 to show how he came to know the 
 condition of the walk. Pomfrey v. 
 Village of Saratoga Springs, 104 N. Y. 
 
206 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. 
 
 104 
 
 these cases the structural defect has occasioned the injury, 
 and this defect is sufficient in itself to charge the corpora- 
 tion with notice of its dangerous character when there is 
 snow, or a sudden formation of ice.^ A municipality is 
 not obliged, however, to inspect the eaves of roofs so as 
 to prevent the formation and falling of icicles. Its duty 
 is to exercise reasonable care only.* Where a sidewalk 
 slopes, and is constructed so that smooth ice accumulates 
 upon it, this will be a defect in the way for which it is 
 held in Massachusetts the towns are responsible, although 
 there would be no responsibility for similar ice on a level 
 
 459, 469. Proof of the happening of 
 a prior accident in the same place has 
 also been held to be competent upon 
 the ground that it tended to show 
 that the walk, tested by actual use, 
 had been demonstrated to be in an 
 unsafe and improper condition, and 
 that such was its condition at the 
 time of the happening of the accident. 
 Quinlan v. City of Utica, 11 Hun 
 217, 74 N. Y. 603 ; District of Co- 
 lumbia V. Armes, 107 U. S. 519.'' 
 
 See also Woolsey v. Ellenville, 39 
 N. Y. St. Rep. 744, 14 N. Y. Supp. 
 180 ; Bly V. Whitehall, 120 N. Y. 506 
 (1889); Bishop V. Goshen, 120 N. Y. 
 337 ; Allison v. Middletown, loi N. Y. 
 667; Todd V. Troy, 61 N. Y. 506; 
 Blakely v. Troy, 18 Hun 167 ; Gay- 
 lord V. New Britain, 58 Conn. 398, 
 8 L. R. A. 752, 20 Atl. Rep. 365 
 (1890); Olsen V. Worcester, 142 Mass. 
 536 (1886); Fitzgerald v. Woburn, 
 109 Mass. 204 (1872); Stone v. Hub- 
 bardston, 100 Mass. 49 (1868); Chi- 
 cago V. Smith, 48 111. 107 (1868). 
 
 But see Billings v. Worcester, 102 
 Mass. 329 (1869). 
 
 'Corts V, Dist. of Col., 18 Mack. 
 277 (1889). 
 
 'Kaveny v. Troy, 108 N. Y. 571 
 (1888), Finch, J., says : •' The general 
 
 facts of this case bring it within the 
 doctrine of Taylor v. City of Yonkers, 
 105N. Y. 202. Something more than 
 the presence of ice due to the result 
 of a low winter temperature must be 
 shown to make the city chargeable 
 with negligence. The fact that for 
 more than ten days preceding the 
 accident to plaintiff the mercury had 
 been below the freezing point was 
 established without contradiction, and 
 that the city did not accomplish im- 
 possibilities or display unreasonable 
 and extraordinary diligence furnishes 
 no ground for liability. 
 
 " The city is not responsible for the 
 construction or sufficiency of the eaves 
 upon the property of individuals. It 
 is not bound to repair them if out of 
 order, and has no authority to directly 
 interfere with their construction. No 
 possible vigilance or care in a large 
 city and in our climate would avail 
 to prevent such results. The common 
 good and general convenience some- 
 times brings with it a trace of seem- 
 ing hardship to individuals. The 
 duty of the municipality is to keep 
 the sidewalks reasonably clean and 
 safe. Snow can be removed without 
 serious difficulty, and where a village 
 permitted it to accumulate on thp 
 
§ 105 SNOW AND ICE ON SIDEWALKS. 20'J 
 
 surface.* In New York, however, the mere existence of 
 a slope, without proof that the accident was due thereto, 
 will make no difference in the liability of the corporation.* 
 
 § 105. Provisions in statutes affecting this liability. — 
 The statutes of many States contain provisions affecting 
 this liability for defects occasioned by snow and ice, and 
 should be examined before action is brought to recover 
 damages, and, indeed, as soon as the occurrence of the 
 accident is learned of, for often a notice of injury must 
 be given within a limited time.' In some localities actual 
 notice of the existence of defects from snow and ice 
 must be received by the corporation before there is lia- 
 bility, and in others full exemption from liability for this 
 negligence is provided.* Ordinances requiring owners to 
 remove snow from their premises, and imposing a penalty, 
 are valid, being within the police power of municipal 
 corporations,^ but nothing beyond the penalty imposed 
 
 walk from the slide of an adjoining ' Pinkham v. Topsfield, 104 Mass. 
 
 roof, until it formed a positive and 78 (1870); Stanton v. Springfield, 94 
 
 dangerous obstruction to travel, we Mass. 566 (1866); see Hill v. Fond du 
 
 held in the first of the cases above Lac, 56 Wis. 242 (1882); Dooley 
 
 cited that the city was liable; not, v. Meriden, 44 Conn. 117 (1876); 
 
 however, because the snow fell from Nichols v. St. Paul, 44 Minn. 494, 
 
 an illy-contrived roof, but because 47 N. W. Rep. 168 (1890). 
 
 having fallen and impeded passage, ''Taylor v. Yonkers, 105 N. Y. 202 
 
 the corporation did not cause its re- (1887); Ayres v. Hammondsport, 29 
 
 moval. But ice from the drip of a N. E. Rep. 265, 45 Alb. L. J. 132 
 
 roof is a different matter. In severe (1891). 
 
 winters it is difficult to remove it. * McKellar v. Detroit, 57 Mich. 
 
 Unreasonable, persistent, and extra- 158, 23 N. W. Rep. 621 (1885). 
 
 ordinary diligence during the preva- •■ McNally v. Cohoes, 127 N. Y. 350, 
 
 lence of freezing weather would alone 27 N. E. Rep. 1043(1891). Infra, 
 
 be adequate to the emergency. Must Chap. XV. 
 
 the city every day chop it off when- ' Carthage v. Frederick, 122 N. Y. 
 
 ever, through miles of streets, the 268, 19 Am. St. Rep. 490, 10 L. R. A. 
 
 difficulty occurs? Is that a reason- 178 (1890); People v. Mattimore, 45 
 
 able requirement ? ■' Hun (N. Y.) 448 (1887); Paxon v. 
 
 See Hixon v. Lowell, 79 Mass. 59. Sweet, 13 N. J. L. 196; Woodbridge 
 
 Compare Pomfrey V.Saratoga Springs, v. Detroit, 8 Mich. 274; Beer Co. v. 
 
 104 N. Y. 459 (1887). Massachusetts, 97 U. S. 25. But see 
 
208 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 1 05 
 
 upon lot owners can be recovered from them — they are 
 not liable to persons injured by reason of accumulations 
 of ice and snow on the sidewalks.^ 
 
 Chicago V. O'Brien, 1 1 1 III. 358 (1884); 
 Gridley v. Bloomington, 88 111. 554 
 (1878). 
 
 ' Rochester v. Campbell, 123 N. Y. 
 405 (1890), rev. 55 Hun 138 ; Moore 
 V. Gadsden, 87 N. Y. 84 (1881), 93 N. 
 Y. 12 (1883) ; Chicago v. O'Brien, 1 1 1 
 111. 532 (1884) ; Norton v. St. Louis, 
 
 97 Mo. 537 (1888); Heeney v. Sprague, 
 II R. I. . 456, 23 Am. R. 502. See 
 Am. Law Rev. Oct. 1877, p. 189; 
 Flynn v. Canton, 40 Md. 312, 17 Am. 
 R. 603 (1874); Hartford v. Talcott, 
 48 Conn. 532 (1881); Kirby v. Sprague, 
 80 Mass. 249. 
 
CHAPTER XIII. 
 
 BRIDGES — NEGLIGENT CONSTRUCTION. 
 
 § io6. Meaning of word, bridge. 
 
 107. Neglecting statutory duty to build. 
 
 108. Special duties respecting bridges over navigable streams. 
 
 109. Duties during construction. 
 
 1 10. Warning the public. 
 
 1 1 1. Preventing special damage from negligence in the work. 
 
 112. Building to withstand storms and freshets. 
 
 113. Providing reasonably safe passageway for the public. 
 
 1 14. Necessity of railings. 
 
 115. Defects in the plan. 
 
 § 106. Meaning of word, bridge. — In the broad sense of 
 the word any structure erected for passage over water or any 
 other impediment to safe and convenient travel is a bridge. 
 Whether it is constructed to afford a way over a river, a 
 ditch, a railway track, a city street, or an excavation under 
 a sidewalk for building purposes is not material ; and the 
 structure may be large or small, permanent or temporary 
 in character, and still be within the ordinary meaning of 
 the word bridge.^ 
 
 ' The word has been many times affording passage between two points 
 
 defined. The following definitions at a height above the ground." New 
 
 show its usual meaning : English Dictionary. 
 
 " Any structure which spans a body " A building of brick, wood, or iron, 
 
 of water, or a valley, road, or the like, erected across a river, ditch, valley, or 
 
 and affords passage or conveyance." other place otherwise impassable, for 
 
 The Century Dictionary. the convenience and benefit of travel- 
 
 " A structure erected for a path or ers." Wharton's Lexicon, 114. 
 
 roadway over a river, railroad, etc., in "A building constructed over a 
 
 order that a passage may be from one river, creek, or other stream, or over 
 
 side to the other." Worcester's Die- a ditch or other place, in order to 
 
 tionary. facilitate the passage over the same." 
 
 " A structure forming or carrying a Bouv. Law Die. 
 
 road over a river, a ravine, etc., or In Carroll County Com. v. Bailey, 
 U 
 
2IO MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § I06 
 
 This use of the word, however, is contrary to the old 
 common-law meaning which required that a structure 
 should be over water in order to be a bridge.* Where 
 the liability for a defective bridge is statutory, it is to be 
 observed that the word may have this or some local, re- 
 stricted meaning, and that in the construction of these 
 statutes its exact meaning will become important.* But 
 in localities where no statute interferes and the common 
 law is held to impose upon municipal corporations a duty 
 to exercise reasonable care to keep the highways safe and 
 a liability for neglect to do so, this technical meaning of 
 the word will not interfere with the enforcement of the 
 liability against the corporation in control of the bridge. 
 The question to be considered is not, has the corporation 
 been negligent in regard to a particular structure called a 
 bridge ? but rather, has it been negligent in its duty to 
 provide and maintain reasonably safe highways for public 
 use ? If, therefore, it erects as a part of such a highway 
 
 122 Ind. 46, 23 N. E. Rep. 672 (1889), Com. v. Bailey, 122 Ind. 46 (1889), it 
 
 Mitchell, C. J., says : " The word was said : " The power of boards of 
 
 ' bridge,' in its ordinary acceptation, commissioners in this State is limited 
 
 denotes a structure of wood, iron, to the construction and maintenance 
 
 brick, or stone, ordmarily erected of bridges over watercourses, 
 
 over a river, creek, pond, or lake, or " Such structures as are erected, or 
 
 over a ravine, railroad, canal, or other contrived, merely for the purpose of 
 
 obstruction in a highway, so as to draining the roadway, or to prevent 
 
 make a continuous roadway, and surface water from standing in the 
 
 afford to travelers a convenient pas- road where a highway is carried over 
 
 sageway from one bank to the other, a ravine, or other depression in the 
 
 Board, etc. v. Brown, 89 Ind. 48 ; earth, or for the purpose of carrying 
 
 Enfield, etc. Co. v. Hartford, etc. one highway over another, unless it 
 
 R.R. Co., 17 Conn. 40, 42 Am. Dec. be a waterway, are not bridges with- 
 
 716 ; Anderson's Law Die, 2 Am. & in the meaning of the statute. Tay- 
 
 Eng. Encyc. of Law. 540." lor v. Davis County, 40 Iowa 295." 
 
 ' Coke, 2 Inst. 701 ; Viner's Abr. In Whitall v. Freeholders of Glou- 
 
 Bridges ; The King v. Oxfordshire, cester, 40 N. J. L. 302 (1878), it was 
 
 I B. & Ad. 289, 300 (1830) ; Beven held that the word bridge had its or- 
 
 on Neg., p. 1059 ; Elliott on Roads dinary and not its technical meaning 
 
 and Streets, p. 21. in a statute authorizing freeholders to 
 
 "/«/>•«,§ 127. In Carroll County construct and repair bridges. 
 
§ lO; NEGLIGENT CONSTRUCTION OF BRIDGES. 
 
 211 
 
 a Structure for use by the public, whatever it may be 
 called, it is bound to exercise reasonable care that this 
 structure shall be and shall continue to be safe for ordi- 
 nary use. 
 
 § 107. Neglecting statutory duty to build. — As a general 
 rule the question of the necessity of a public bridge is 
 within the discretion of the municipality having the right 
 to build it ; and when it is, the courts will not interfere 
 with this discretion.' If, however, a statute requires a 
 bridge to be erected by a public corporation, obedience 
 to the statute may be enforced in the courts;^ and if 
 special damage could be shown, it seems probable that 
 an action on the case could be maintained for the neglect 
 of the corporation to comply with the statute.' 
 
 > State V. Freeholders of Essex (N. 
 J.), 3 Zab. 214 ; Quinton v. Burton, 61 
 la. 471 (1883); Orth V. Milwaukee, 59 
 Wis. 336 (1884) ; Jones v. Keith. 37 
 Tex. 399, 14 Am. Rep. 382 (1872); 
 Elliott on Roads and Streets, p. 38. 
 
 ' In State v. Northumberland, 46 
 N. H. 628 (1863), it is said : "Should 
 the respondent elect to go to the jury 
 on the question whether the neglect 
 to rebuild the bridge is a nuisance, 
 there should be taken into considera- 
 tion the means of crossing without 
 such bridge, by fording or otherwise ; 
 the occasion there would be to cross 
 at that point; whether it would be 
 frequent and continued, or only ex- 
 ceptional and rare, or of a character 
 so trifling as to be of no substantial 
 importance ; whetherthe bridge would 
 be so connected with other public 
 highways, to which there is access, 
 that it would be of public utility and 
 convenience ; and whether the want 
 of access, if it exists, is caused by the 
 fault of the town in not keeping in 
 repair the highways leading to the 
 
 bridge." See Hamilton County v. 
 State, 113 Ind. 179 (1887); Macon 
 County V. People, 121 111. 616 (1887); 
 Richards v. County, 120 Mass. 312 
 (1882). See also Pittsburgh v. Clarks- 
 ville, 58 N. H. 291 ; Board of Com. v. 
 Thompson, 106 Ind. 534. 
 
 ' In New Jersey the statute pro- 
 vides as follows : 
 
 " In all cases where a township or 
 the board of chosen freeholders of a 
 county are chargeable by law with 
 the erection, rebuilding, or repair of 
 any bridge or bridges, and the said 
 township or board of chosen free- 
 holders shall wrongfully neglect to 
 erect, rebuild, or repair the same, by 
 reason whereof any person or persons 
 shall receive injury or damage in his 
 or their persons or property, he or 
 they may bring his or their action of 
 trespass on the case against said 
 township or said board of chosen 
 freeholders, as the case may be, and 
 recover judgment against them to the 
 extent of all such damage sustained 
 as aforesaid, which said judgment shall 
 
212 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § Io8 
 
 § io8. Special duties respecting bridges over navigable 
 streams. — Express legislative authority is necessary to au- 
 thorize the construction of a bridge over a navigable 
 river, and a bridge which is erected without such author- 
 ity is a nuisance.^ And while this authority comes from 
 the State,^ the ultimate control of navigable streams 
 which are used for commerce between the States, is in 
 the United States Government.' 
 
 During the erection of a bridge over a navigable river, 
 care must be taken not to unnecessarily interfere with 
 navigation, and if there is negligence which results in 
 such interference, the negligent owners will be held re- 
 sponsible.* After the work is completed, all dangerous 
 obstructions to navigation used during the construction 
 of the bridge must be removed.* 
 
 § 109. Duties during construction. — In constructing a 
 bridge under a particular statute a municipal corporation 
 
 be paid by the township or county, also Sands v. Manistee River, etc. Co., 
 
 as the case maybe." L. i860, p. 285 ; 12311.8.288(1887). 
 
 Revision, p. 86, § 9. See Ripley v. * See Hamilton v. Vicksburg, etc. 
 
 Freeholders, 40 N. J. L. 45 (1878). R. Co., 119 U. S. 280 (1886), where 
 
 See as to liability for violating a the principle of liability is conceded, 
 
 statutory duty, Knupfle v. Knicker- although, in the case at bar, no neg- 
 
 bocker Ice Co., 84 N. Y. 488 (1881); ligence was shown. See also Evans 
 
 Sherman and Redfield, § 13. v. North Side, etc. Co., 26 Fed. Rep. 
 
 ' Fort Plain Bridge Co. v. Smith, 718 (1886) ; March v. Portsmouth, 
 
 30N. Y. 44(1864); Arundel v. Mc- etc. R. Co., 19 N. H. 371 (1849); 
 
 CuUoch, 10 Mass. 70(1813); Rex v. In- railroad must let water through: 
 
 habitants, 2 W. Black 685 ; Payne Omaha, etc. Ry. Co. v. Brown, 46 N. 
 
 v. Partridge, i Salk. 12; Elliott on W. Rep. 39(1890); Barber v. Police 
 
 Roads and Streets, pp. 25-28. Jury, 15 La. Ann. 557; Elliott on 
 
 * Cardwell v. American Bridge Co., Roads and Streets, p. 29. 
 
 113 U. S. 205 (1884); Escanaba Co. "Philadelphia R. Co. v. Philadel- 
 
 V. Chicago, 107 U. S. 678 (1882); phia, etc. Towboat Co., 23 How. U. 
 
 People V. Kelly, 76 N. Y. 475 S. 209 (1859); Monongahela Bridge 
 
 (1879). Co. V. Kirk, 46 Pa. 1 12 (1863) ; Law- 
 
 ' Willimantic Iron Bridge Co. v. rence v. Great Northern R. Co., 16 
 
 Hatch, 125 U. S. I (1887); Miller v. Q. B. 643 (1851). 
 New York, 109 U. S, 385 (1883). See 
 
§ no NEGLIGENT CONSTRUCTION OF BRIDGES. 213 
 
 must follow the statute strictly, and any departure from, 
 it will ordinarily bring liability upon the corporation/ un- 
 less it is able to escape, on the ground that it has exceeded 
 its corporate power.* In the absence of a special statute, 
 and where a bridge is built by a municipality under gen- 
 eral authority, reasonable care must be exercised ( i ) to warn 
 the public who use the stream or the approaches to the 
 bridge that the work of construction is in progress, (2) to 
 prevent special damage to others by reason of the work, 
 (3) to erect a bridge that will withstand all ordinary storms 
 and freshets, (4) to provide a safe and secure passageway 
 for all of the ordinary uses of the public. 
 
 § no. Warning the public. — The duty to warn the pub- 
 lic of the work of construction is the same obligation 
 that rests upon the corporation when it is making repairs 
 in its streets or sidewalks, and it arises from the general 
 duty to exercise care to keep the highways safe for use. 
 
 The building of the bridge is a matter of municipal 
 concern, and in the prosecution of this work the corpo- 
 ration should protect the rights of the public. By plac- 
 ing obstructions in the stream, the privilege of the public 
 to use it is interfered with, and it is reasonable that sufifi- 
 cient warning of the obstructions should be given.* So, 
 where the bridge is a continuation of a street, or con- 
 nects two streets, the danger to the public of leaving the 
 approaches unprotected is obvious.* Nothing further is 
 required in either case than that reasonable notice or 
 warning should be given the public. And if barriers are 
 erected, and are subsequently removed by a third person, 
 
 ' See Hannibal, etc. R. Co. v. Mis- « Infra, % 172. 
 
 souri, etc. B. Co., 125 U. S. 260 'The Modoc, 26 Fed. Rep. 718 
 
 (1887); Flynn v. Commissioners, 22 (1886). 
 
 N. E. Rep. 1 109 ; Board v. Thomp- •• Consult sufra, §§ 83, 95. 
 son, 106 Ind. 534 (1886). 
 
214 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §ni 
 
 and the corporation is not negligent in discovering the 
 fact of removal, liability cannot be enforced against it.^ 
 
 § III. Preventing special damage from negligence in the 
 work.— As will be shown in a subsequent chapter, it is a 
 general rule that municipal corporations must respond 
 for the special damage done by their acts of misfeasance.* 
 When, therefore, in the prosecution of any public work, 
 such a corporation needlessly allows the property of 
 others to be injured, it must respond in damages to the 
 extent of the damage inflicted. In a recent decision* 
 
 ' Mullen V. Rutland, 55 Vt. ^^ 
 (1883) ; Weiss v. Jones County, 45 N. 
 W. Rep. 883, 29 Am. & Eng. C. C. 
 470 (1890) ; supra, § 85. 
 
 '^ See infra, § 142. 
 
 ' In Hartford County v. Wise, 61 
 Md. 43, 29 Am. & Eng. 461 (1889), 
 McSherry, J., says : " When a munic- 
 ipal corporation undertakes, in the 
 discharge of its duties, to construct 
 or repair a bridge upon a highway, it 
 is responsible for damage caused by 
 the negligent, careless, or unskillful 
 manner of performing the work. This 
 liability has been asserted and en- 
 forced by this court in numerous ad- 
 judged cases, some of them of such 
 recent date as to render it unneces- 
 sary to make citations from them, or 
 to repeat here the reason upon which 
 they were determined. Kranz v. Bal- 
 timore City, 64 Md. 491, 14 Am. & 
 Eng. C. C. 432 ; Hitchins v. Mayor, 
 etc., 68 Md. 100, 20 Am. & Eng. C. C. 
 400. All the authorities agree in 
 holding that where the injury com- 
 plained of is the result of the exercise 
 by a municipal corporation of its quasi 
 judicial powers, an action will not lie 
 if there has been no negligence, care- 
 lessness, or unskillfulness in doing the 
 work which caused the damage. 2 
 Dill. Mun. Corp. (2d ed.), § 753, and 
 cases cited in the note thereto. 
 
 " But what particular acts are to be 
 regarded as discretionary or quasi 
 judicial on the one hand, and what 
 purely ministerial on the other, is a 
 question often exceedingly difficult to 
 determine, and one which the ad- 
 judged cases are by no means har- 
 monious in deciding. It would be a 
 hopeless task to attempt to reconcile 
 these conflicting decisions. There are 
 extreme ones in both directions. 
 While it is important that the neces- 
 sary powers of a municipality, con- 
 ferred upon it for the pulalic welfare, 
 should not be unreasonably restricted, 
 and should not be so construed as to 
 subject the body corporate to liability 
 in a civil action for an honest mistake 
 of judgment made when acting in a 
 ^Kfljz judicial character, it is no less 
 incumbent on the courts to lay down 
 no rule which shall, when applied in 
 practice, deprive the individual of re- 
 dress where his property has been 
 damaged or invaded, or his person 
 has been injured by the improper and 
 negligent execution of these same dis- 
 cretionary powers. It is not easy, if, 
 indeed, it be possible, to define with 
 precision, except theoretically, the ex- 
 act line which divides the quasi judi- 
 cial from the ministerial powers of a 
 public corporation, because they are 
 often so dimly separated as to be ap- 
 
§ III NEGLIGENT CONSTRUCTION OF BRIDGES, 215 
 
 this rule has been applied to a case where a bridge was 
 negligently located, and adjoining property was thereby 
 injured — although, as a general rule, the locating of a 
 
 parently blended together. ' All that 
 can be done with safety,' observed 
 Mr. Justice Foot, in Lloyd v. City of 
 New York, ; N. Y. 369, 'is to de- 
 termine each case as it arises.' How- 
 ever, the decision of the case at bar 
 does not require that we should adopt 
 any definition of these powers, broad 
 and general enough to comprehend 
 other questions than the ones in- 
 volved in this controversy. A bridge, 
 like a sewer, may be so located as in- 
 evitably to cause injury to another, no 
 matter how skillfully put together; 
 and it would be strange, indeed, if the 
 municipality could ba held for the 
 damage resulting from the defective 
 mechanical execution of the work 
 when properly located, and should be 
 exempted from liability for precisely 
 the same damage to the same indi- 
 vidual caused by the careless and un- 
 skillful location of the same structure 
 when properly put together. The 
 construction of a bridge at a place 
 totally unsuited for it, because calcu- 
 lated to occasion an injury like that 
 complained of, cannot be skillful in 
 any sense of the term. It is unde- 
 niably true that a municipal corpora- 
 tion has no more authority than a 
 private person to create a nuisance. 
 Noonan v. City of Albany, 79 N. Y. 
 470. It has consequently no right to 
 build its works in such a manner, and 
 at such a place, as will inevitably 
 cause injury to another. Inhabitants 
 of West Orange v. Field, 37 N. J. Eq. 
 600, 2 Am. & Eng. C. C. 629 ; Dan- 
 bury & N. R. Co. V. Town of Nor- 
 walk, 37 Conn. icjg. Where the in- 
 jury resulted from the narrowness of 
 the span of a bridge, it has been held 
 
 to be due to a defect in construction. 
 Perry v. City of Worcester, 6 Gray 
 (Mass.) 544. If it be occasioned by 
 the insufficiency of the size of a sewer, 
 it is likewise such a defect in construc- 
 tion as will render the corporation 
 liable. Hitchins v. Mayor, etc., 68 
 Md. 100; White Lead Co. v. Roches- 
 ter, 3 N. Y. 463. If it be the result 
 of the bridge or sewer being placed 
 at such a locality as to produce the 
 damage actually inflicted, it cannot be 
 said that the construction was other 
 than negligent and unskillful. Skill- 
 ful construction means something 
 more than skillfully putting suitable 
 materials together. It involves put- 
 ting them together in a proper man- 
 ner, upon a site adapted to the struct- 
 ure built. In determining whether a 
 structure has been skillfully erected, 
 the place upon which it has been built 
 cannot be overlooked or disregarded. 
 No building located upon ground in- 
 capable of supporting it, can in fact 
 be skillfully constructed. No bridge 
 erected at a point where it will cer- 
 tainly be washed away by high waters, 
 either because of the narrowness of its 
 span, its want of elevation, or because 
 of a bend in the stream, is skillfully or 
 carefully built. The location neces- 
 sarily enters into and is a part of the 
 construction. There can be no con- 
 struction without a location. There 
 can be no skillful construction upon 
 an improper location. The manner 
 of building the thing, and the place 
 where it is built, must both be con- 
 sidered in determining the question 
 of care and skill in its construction. 
 The fixing of the location, therefore, 
 as pairt of the actual construction, is a 
 
2l6 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. §111 
 
 bridge is deemed to be a governmental right* But as is 
 claimed elsewhere, the government never has the right 
 to undertake and carry on a work in a negligent manner, 
 and as soon as a governmental decision is put into effect 
 by the commencement of active work, the ministerial 
 duty of construction arises, and the negligence of which 
 complaint is made arises from the work and not from the 
 decision of the corporation.^ 
 
 Reasonable effort must be made to prevent obstruc- 
 tions to the flow of water to such an extent as to injure 
 one who relies upon the water to carry on his work,^ and 
 care must be taken to keep all flowage from private 
 property.* Injuries done to employees in the process of 
 
 ministerial act. If any injury be pro- 
 duced by a negligent location of a 
 bridge, the person aggrieved is not, 
 and ought not to be, without remedy. 
 In our opinion it was competent to 
 show by evidence that the bridge in 
 question had been negligently located, 
 and that the injury sustained by the 
 appellees was the direct result of such 
 negligence." 
 
 ' See Kyle v. Board, 94 Ind. 115 
 (1883) ; Quinton v. Burton, 61 la. 471 
 (1883). 
 
 ' In Doherty v. Braintree, 148 Mass, 
 Rep. 495 (1889), Allen, J., says : " It 
 is a general rule in this common- 
 wealth, though subject to some excep- 
 tions, that a private action will not lie 
 against a town to recover damages 
 sustained in consequence of the neg- 
 ligence of its agents in the perform- 
 ance of a duty which, under require- 
 ment or authority of law, the town 
 has assumed, with a sole view to the 
 general benefits, unless such action is 
 given by statute. Hill v. Boston, 122 
 Mass. 344, 345, 351; Tindley v. Salem, 
 137 Mass. 171. See also Benton v. 
 Boston City Hospital, 140 Mass. 13. 
 
 " But the duty of building a road 
 
 or bridge has not been deemed to fall 
 within this general rule, and such lia- 
 bility has been held to exist where a 
 town has voluntarily or compulsorily 
 assumed the performance of such 
 duty. Hawks v. Charlemont, 107 
 Mass. 414 ; Dean v. Randolph, 132 
 Mass. 475 ; Waldron v. Haverhill, 143 
 Mass. 582. We cannot distinguish 
 the present case from Dean v. Ran- 
 dolph. The duty of rebuilding the 
 bridges was put upon the town, and 
 the town proceeded to do the work 
 through agents whom it might direct 
 and control, namely, the selectmen 
 and the committee of citizens. The 
 fact that the draw was required to be 
 thirty-six feet wide, and that the 
 bridge was required to be built ac- 
 cording to plans which must be first 
 approved by the board of harbor and 
 land commissioners, did not take from 
 the town the control of the work, in 
 any such sense as to exonerate it 
 from responsibility for negligence in 
 the details of construction." 
 
 ' Perry v. Worcester, 72 Mass. 544, 
 66 Am. Dec. 431 (1856). 
 
 * Lawrence v. Inhabitants, 71 Mass. 
 110(1855); McCleneghan v. Omaha, 
 
§§ 112, 113 NEGLIGENT CONSTRUCTION OF BRIDGES. 21/ 
 
 the work by negligence, are also chargeable to the cor- 
 poration, and, in general, it may be said that it carries 
 forward the entire work under the same obligations to 
 exercise reasonable care to refrain from interfering with 
 the rights of others, that rests upon every individual. 
 
 § 112. Building to withstand storms and freshets. — A 
 bridge erected over a waterway should be built with 
 special regard for the stream it crosses. The history of 
 the stream will be the best guide as to its future, and a 
 bridge constructed in such a manner that it is reasonable 
 to conclude that it will withstand the storms likely to 
 occur in that vicinity will be sufficient.^ If a storm or 
 freshet of overwhelming dimensions has visited a locality, 
 this will not be a reason for requiring a corporation to 
 build so as to withstand its force ; but if unusual storms 
 may reasonably be expected, the corporation should con- 
 sider this fact, and construct the bridge so that it will not 
 be affected by them.^ 
 
 § 113. Providing reasonably safe passageway for the pub- 
 lic—The bridge should be constructed so that it will an- 
 swer all the usual and proper needs of the public, and it 
 will be negligence on the part of the authorities to fail to 
 consider these needs.* It should be strong enough to 
 allow ordinary vehicles with ordinary loads to pass over 
 
 etc. R. Co., 25 Neb. 523 (1889); 69 111. 285. 18 Am. R. 618, note. 
 
 Kankakee, etc. R. Co. v. Horan, 131 See Allen v. Chippewa Falls, 52 Wis. 
 
 111. 288 (1890) ; Spencer v. Hartford, 430, 38 Am. R. 748 (1881). 
 
 etc. R. Co., 10 R. I. 14 (1871). See « Jordan v, Hannibal, 87 Mo. 673, 
 
 Brown v. Cayuga, etc. R. Co., 12 N. 13 Am. & E. C. C. 466 (1886); infra, 
 
 Y. 486 ; Conrad v. Ithaca, 16 N. Y. n. i, p. 221 ; Gray v. Harris, 107 
 
 158 (1857); infra, §§ 143, 144- Mass. 492 (1871) ; Elliott on Roads 
 
 ' Blyth V. Birmingham, 1 1 Exch. and Streets, p. 38. 
 
 781; Louisville, etc. Co. v. Thomp- ^ Supra, %\\\t.,\\1. Consult Sher- 
 
 son, 107 Ind. 442 ; Livezey v. Phila- man & Redfield on Neg., §§ 392, 
 
 delphia, 64 Pa. 106, 3 Am. R. 578 393! Elliott on Roads and Streets, 
 
 (1870); Chicago, etc. Co. v. Sawyer, p. 47. 
 
2l8 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §113 
 
 it safely.^ But there is no obligation resting upon the 
 corporation to provide a bridge that will withstand an 
 extraordinary and altogether unusual weight.** In a city 
 where trucks heavily loaded with iron, stone, or mer- 
 chandise constantly pass over a bridge it is evident that 
 a different standard of judgment must be applied than is 
 proper when one is considering a bridge on a country 
 road ; and in every case a bridge should be built with 
 special regard for its probable use. 
 
 So where a bridge is constructed over an excavation 
 under a sidewalk the whole duty of the corporation is 
 to make it reasonably safe in view of its temporary and 
 probable use.^ And if a bridge is a drawbridge it must 
 
 ' Wabash v. Pearson, 120 Ind. 426 
 (1889); Yordy v. Marshall Co. (la.), 
 45 N. W. Rep. 1042, 29 Am. & Eng. 
 C. C. 467 (1890). In McCormick v. 
 Washington, 112 Pa. 185, 13 Am. & 
 Eng. C. C. 464, note, it appeared 
 that the plaintiff was traveling on 
 a highway with a steam threshing- 
 machine which consisted of three dif- 
 ferent vehicles. These vehicles were 
 being transported by a traction engine 
 and a horse and mule were hitched in 
 front for the purpose of guiding the 
 machine. While crossing a stream 
 one of the stringers of the bridge 
 broke and the team and machine were 
 injured. Upon appeal from a verdict 
 for the town, the court said : 
 
 "A township is not required to 
 assume that its bridges will be used 
 in an unusual and extraordinary man- 
 ner, either by crossing at great speed 
 or by the passing of a very large and 
 unusual weight. As it does not an- 
 ticipate any such use, it is not required 
 to so build as to protect against in- 
 jury resulting from such reckless con- 
 duct. Its liability stops with con- 
 structing and maintaining its bridges 
 
 so as to protect against injury by a 
 reasonable and proper and probable 
 use thereof in view of the surrounding 
 circumstances, such as the extent, 
 kind, and nature of the travel and 
 business on the road of which it forms 
 a part." See also Woodbury v. Owos- 
 so, 69 Mich. 479, 37 N. W. Rep. 547 ; 
 Wilson v.Granby, 47 Conn. 59 (1879); 
 Omaha, etc. R. Co. v. Brown, 46 N. 
 W. Rep. 39; Clapp v. Ellington, 51 
 Hun 58; Dexter v. Canton, 79 Me. 
 
 463- 
 
 * Monongahela Bridge Co. v. Pitts- 
 burgh, 114 Pa. 478; Fulton Iron, 
 etc. Works v. Kimball Tp. (Mich.), 2 
 Am. & Eng. C. C. 673; Moore v. 
 Kenockee Tp., 75 Mich. 332,42 N.W. 
 Rep. 944 (1889) ; Gregory v. Adams, 
 80 Mass. 242 (1859) ; Richardson v. 
 Royalton, etc. T. Co., 6 Vt. 496. 
 
 s In Nolan v. King, 97 N. Y. 565 
 (1885), it was said : " Where a per- 
 son, with due authority from the mu- 
 nicipal authorities, had removed the 
 sidewalk of a city street, excavated 
 for the purpose of constructing a 
 vault, and built a bridge over the ex- 
 cavation, the court said : ' One who, 
 
114 NEGLIGENT CONSTRUCTION OF BRIDGES. 
 
 219 
 
 be constructed so that it may be safely used for the pur- 
 pose of allowing vessels to pass.* 
 
 § 114. Necessity of railings. — Not only must a bridge 
 be strong enough to support ordinary weights, but it 
 must also be protected with guards or railings so that it 
 may be safely used.* And it is not sufficient if one side 
 
 with the permission of the public au- 
 thorities, without disturbing the side- 
 walk, piles brick in the roadway, leav- 
 ing room for wagons to pass, neces- 
 sarily narrows the roadway and does 
 not and cannot keep it in a safe con- 
 dition for the passage of carriages as 
 it was before such occupation. Such 
 an occupation of the street in the city 
 of New York is lawful (Rehberg v. 
 Mayor, etc., 91 N. Y. 143), but does 
 not leave the street in as safe a con- 
 dition for passage as it was before the 
 pile of brick was placed upon it.' Such 
 a test cannot be applied. The rule in 
 case of an excavation, duly author- 
 ized, is that it shall be carefully 
 guarded so as to be reasonably free 
 from danger to travelers upon the 
 street. Brusso v. City of Buffalo, 90 
 N. Y. 679. If it is covered, and the 
 public invited to pass over it, reason- 
 able care requires that it should be so 
 strongly and so prudently constructed 
 as to involve no peril to those passing 
 over it and exercising the ordinary 
 care appropriate to the situation. It 
 is not to be expected, and cannot be 
 required, that the temporary covering 
 shall equal in safety and convenience 
 the sidewalk removed, or that passen- 
 gers may cross with as little heed and 
 care as upon the completed pavement, 
 and the duty of the builder is not to 
 be thus measured until his work is 
 done and opened to public passage as 
 a completed sidewalk. The necessi- 
 ties of building involve some incon- 
 venience to the public. Temporarily 
 
 it must be borne in view of the other 
 public benefit resulting from freedom 
 of construction ; and where it occurs 
 the traveler is bound to observe its 
 presence, and give to his passage 
 some of the care and observation 
 which he may assume to be unneces- 
 sary upon the completed sidewalk. 
 But if the builder opens his covering 
 to the passage of the public, although 
 as a temporary substitute, he must be 
 deemed to declare it safe and free from 
 peril to persons crossing with such 
 ordinary prudence and care as the 
 presence of the temporary structure 
 requires ; and so he must build it with 
 so much care, and skill, and prudence 
 as will reasonably protect the passers 
 from peril, and enable them with some 
 ordinary attention to their steps to 
 pass it with safety. The necessity is 
 exceptional upon both sides. In the 
 present case the steps were of unequal 
 height and width, and there was some 
 evidence that they were guarded by 
 no side rail, and the question of neg- 
 ligence should have been presented 
 to the jury upon all the facts and cir- 
 cumstances of the case, but without 
 setting up the removed sidewalk and 
 passage over it, as the measure of the 
 builder's duty and the traveler's care." 
 
 ' Weisenberg v. Winneconne, 56 
 Wis. 667 (1883) ; Crouch v. Charies- 
 ton, etc. R. Co., 21 S. C. 495 (1884) ; 
 Patterson v; Prop. East Bridge, etc. 
 Co., 40 Me. 404 (1855); infra, § 133. 
 
 'In Corbalis v. Newberry Tp., 132 
 Pa. 9 (1890), where there was no rail- 
 
2 20. MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS, §,IJ5 
 
 intended for use by pedestrians is protected.^ The entire 
 bridge, including the approach,^ should be reasonably 
 safe. In a locality where the liability for defective 
 bridges is wholly statutory, it has been held that there is 
 no liability to a person who is injured by the breaking of 
 a side rail on a bridge upon which he was leaning — the 
 court holding that the railing was for the purpose of 
 warning the traveling public only, and the liability was 
 to travelers only.^ This is not the rule in New York,^ 
 and it seems to have no other justification than that it is 
 derived from the statute. The use of a bridge in this 
 way is not unlawful, and as it is quite ordinary and harm- 
 less, no reason is seen why the authorities should not 
 provide sufficiently strong railings to protect the public. 
 
 § 115. Defects in the plan. — A defectively planned 
 bridge is as dangerous to the public as one that is 
 
 ing on an abutment of a bridge to 
 prevent foot passengers from walking 
 off, Mr. Justice Sterrett said : " In 
 the case at bar the unguarded preci- 
 pice, instead of being a gently sloping 
 embankment of three or four feet, 
 such as are not uncommon on coun- 
 try highways, was an actual pitfall, 
 nearly perpendicular, and about twelve 
 feet high ; and tlie injured party, in- 
 stead of intentionally crossing the 
 highway diagonally in search of a 
 diverging footpath, was endeavoring 
 to follow the beaten highway, and 
 had every reason to believe he was 
 doing so, until he suddenly went over 
 the unguarded precipice, down on to 
 the rocky bed of the stream below." 
 Cf. Monongahela City v. Fischer, 1 1 1 
 Pa. 9. See Tyler v. Williston, 62 Vt. 
 269 (1890); Grayville v. Whitaker, 85 
 111. 439 (1877); Loewer v. Sedalia, ^^ 
 Mo. 431 (1883); Staples v. Canton, 69 
 Mo. 592 ; Ward v. North Haven, 43 
 Conn. 148 (1875); Austin City v. 
 
 Emanuel, 74 Tex. 621 (1889); Mor- 
 rell v. Peck, 88 N. Y. 398 (1882). 
 
 ' Walker v. Kansas City, 99 Mo. 
 647 (1889). See Tritz v. Kansas 
 City, 84 Mo. 632 ; McClain v. Garden 
 Grove (la.), 48 N. W. Rep. 1031, 12 
 L. R. A. 482 (1891). 
 
 ' Newcomb v. Montgomery Co., 79 
 la. 487, 29 Am. & Eng. C. C. 488 
 (1890); Nims V. Boone Co., 66 la, 
 272, 68 la. 642 ; Albee v. Floyd Co., 
 46 la. 177 ; Pennsylvania Tp. v. Perry 
 Tp., 78 Pa. 457 (1875); Carpenter v. 
 Cohoes, 81 N. Y. 21 (1880); Daniels 
 V. Athens, 55 Ga. 609; Freeholders 
 V. Strader, 18 N. J. L. 108; North 
 Staff Ry. Co. v. Dale, 8 Ell. & Bl. 
 836 ; Talland v. Wellington, 26 Conn. 
 578 ; Bardwell v. Jamaica, 1 5 Vt. 438 ; 
 Swanzey v. Somerset, 132 Mass. 312 
 (1882). 
 
 * Stickney v. Salem, 85 Mass. 374; 
 Orcutt V. Bridge Co., 53 Me. 500. 
 
 * Langlois v. Cohoes, 58 Hun 226 
 (1890). 
 
:§ 115 NEGLIGENT CONSTRUCTION OF BRIDGES. 221 
 
 well planned but is badly constructed. The injury to 
 individuals arises from the unsafe character of the struct- 
 ure which the corporation maintains. And as soon as a 
 plan is put into execution it ceases to be within the 
 realm of governmental discretion. A municipal cor- 
 poration is not allowed to escape liability for injuries 
 caused by a defective bridge, on the ground that it was 
 constructed according to an accepted plan.^ If it has 
 
 ' In Jordan v. The City of Hanni- 
 bal, 87 Mo. 673, 13 Am. & Eng. C. C. 
 466 (1885), Black, J., says: "The 
 court, of its own motion, gave an 
 instruction stating that it was the 
 duty of the defendant, in adopting a 
 plan for a bridge, to consider the 
 nature and condition of the materials 
 composing the bed and banks of the 
 stream, and the force of the current 
 arising in said stream from ordinary 
 storms, and if the bridge was built 
 upon a plan that necessarily rendered 
 travel over it dangerous in the usual 
 modes of travel during a rainstorm 
 of ordinary force and violence, and 
 that the loss was caused by such 
 defect in the plan of the bridge, then 
 the finding should be for the plaintiff. 
 The creek was a wet-weather water- 
 way. In a distance of a quarter of a 
 mile above the bridge it has a fall of 
 one hundred and thirty-seven feet; 
 evidence tended to show, to be safe, 
 the bridge should have abutments of 
 stone, or piles driven into the ground, 
 or wings built out from the bents to 
 the banks. Generally it is true a mu- 
 nicipal corporation acts judicially in 
 selecting a plan upon which a public 
 improvement is to be constructed, and 
 no private action will lie for a lack of 
 judgment in that respect. Sher. & 
 Red. on Neg., §§ 144, 374- The rule 
 has been applied in this State where 
 
 a street was brought to a grade pur- 
 suant to a plan for grading the streets 
 prescribed by ordinance, and private 
 property was flooded by reason of the 
 changed grade. Foster v. The City 
 of St. Louis, 71 Mo. 157. But we do 
 not see that the rule has any applica- 
 tion to this case. Whether the de- 
 fendant could or would build a bridge, 
 with abutments of masonry or of 
 wood, was, of course, a matter for 
 the city council to determine. But 
 where it undertook to build one, it 
 was in duty bound to put and keep 
 the same in a reasonably safe con- 
 dition for travel. Staples v. The Town 
 of Canton, 69 Mo. 592 ; Weightman 
 V. The Corporation of Washington, i 
 Black 39. There is no evidence tend- 
 ing to show that the city council ever 
 formally adopted any particular plan, 
 or brought to Its aid any skill. In- 
 deed, the bridge was a simple affair, 
 having but two bents, and those twelve 
 feet apart. If without piles driven 
 into the ground, or wings built out 
 from the bents to the banks, to pre- 
 vent working between the bents and 
 banks, it was necessarily dangerous ; 
 then the defendant was guilty of neg- 
 ligence in its construction. It is in 
 this sense the word plan must have 
 been used and understood. This in- 
 struction, it is also contended, placed 
 a right to recover upon a ground not 
 
222 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §115 
 
 not exercised reasonable care in the entire construction 
 of the bridge, it must respond in damages for its neglect.' 
 
 stated in the pleadings. The petition 
 in substance states that the bridge 
 was so negligently constructed, that 
 with the wear from travel thereon, 
 and the action of the water there- 
 under, it had become unsafe, and that 
 it gave way and fell while the horse 
 and carriage were being driven over 
 it, resulting in a total loss, etc. The 
 
 petition, it will be seen, counts upon 
 negligence in the construction as well 
 as want of repair." Ferguson v. Davis 
 Co., 57 la. 601 (1881). Compare 
 Lehigh Co. v. Hoffort, 116 Pa. 119 
 (1887); and cases, supra, p. 216, note 
 2, and infra, § 145. 
 ' See infra, \iy) et seg. 
 
CHAPTER XIV. 
 
 BRIDGES — NEGLECT TO REPAIR. 
 
 § 1 16. Control of bridges under the common law. 
 
 117. Who controls bridges in the United States. 
 
 118. Statement of general duty at common law. 
 
 119. Duty exists whoever builds, if corporation in control. 
 
 120. Duty where control is divided. 
 
 121. Defect in bridges. 
 
 122. Examination for decay. 
 
 123. Special duties respecting draw-bridges. 
 
 124. Want of funds to repair. 
 
 125. Extent of common-law liability for neglect to keep highways in 
 
 repair. 
 
 § 116. Control of bridges under the common law. — By 
 the common law the control of bridges and the duty to 
 keep them in repair rested upon the inhabitants of the 
 counties in which they were situated.* Inasmuch, how- 
 ever, as these inhabitants were not bodies corporate, they 
 were not capable of being sued for special damage suf- 
 fered by one who was injured by the neglect to repair,® 
 but an indictment could be preferred against a county 
 for the non-repair of a bridge.' 
 
 § 117. Who controls bridges in the United States.— 
 Bridges in the United States are usually under the con- 
 trol of the municipal body having charge of the high- 
 
 " See supra, §§ 15-17 ; King v. In- ' Russell v. Men of Devon, 2 T. R. 
 
 habitants of the West Riding of 662 {supra, §47): compare supra, 
 
 York, 7 East 588 (1806): King v. In- §§15-18. 
 
 habitants of Devon, 14 East 477 » Beven on Neg., pp. 1012, 1013 ; 
 
 (181 1) ; King v. Inhabitants of Ec- Hill v. Boston, 122 Mass. 344 ; supra, 
 
 clesfield, i B. & Aid. 348 ; Washer v. §45- 
 Bullitt County, no U. S. 558 (1883). 
 
224 MUNICIPAL DUTIES— GOVERNMENTAL AFFAIRS. §11; 
 
 ways, but not always/ If they are located within the 
 limits of a chartered city, town, or village, they are ordi- 
 narily under the supervision of the local corporation. 
 Throughout New England they are generally under the 
 control of the towns.* In the other States, however, 
 when not located within the limits of a chartered corpo- 
 ration, they are usually under the supervision of the 
 county authorities. The question of control, however, 
 should be settled with reference to the law of the place 
 where the bridge is situated, for local statutes may even 
 give control to a particular public body created for the 
 purpose of taking charge of roads or bridges,' Where 
 the control is vested in a corporate body, and the duty 
 to repair rests upon such a body, the remedy by action 
 on the case for special damages, exists generally in the 
 United States.* In a preceding chapter the question of 
 the liability of a county for injuries coming from a fail- 
 ure to repair a highway has been considered, and it was 
 there concluded that there was no sufficient reason for 
 denying this liability where there was a breach of duty by 
 a corporate body of this character.* The authorities are 
 conflicting upon the question, however, and it cannot be 
 deemed to be settled in accordance with this view. In 
 some localities liability for failing to keep bridges in a 
 reasonably safe condition for use is wholly denied, and 
 
 ' See supra, p. 210, n. 2; infra, bridges; Carroll Co. Com. v. Bailey, 
 
 Chap. XV.; Elliott on Roads and 122 Ind. 46. And in New Jersey the 
 
 Streets, p. 35 ; Sherman & Redfield care of roads and bridges is given to 
 
 on Neg., § 394. a body known as the " Board of Free- 
 
 « " In the New England States, this holders. " See infra, § 133. 
 
 duty, for the most part, devolves upon The primary responsibility for the 
 
 the town, unless some particular per- maintenance and repair of highway 
 
 son is specially charged therewith." bridges in New York is upon the 
 
 Angell on Highways, §270. Seethe towns. See Bidelman v. State, no 
 
 . statutes set forth infra, \\ 126-132. N. Y. 232 (1888), 
 
 'In Indiana distinct corporations * Supra, \(>%. 
 
 have charge of the roads and the « Supra, \% 59-69. 
 
§ Il8 NEGLECT TO REPAIR BRIDGES. 225 
 
 even chartered cities are brought within the decision 
 made with reference to the unincorporated inhabitants 
 of the English counties.^ Where this theory is held, the 
 entire liability for damages, if it exists at all, is statu- 
 tory. 
 
 The remedy by indictment* to punish for failure to re- 
 pair, and by mandamus^ to compel repair, are also resorted 
 to in the United States, although indictments for non- 
 repair, if we judge by the reported cases, are much more 
 frequent in England. 
 
 § 118. Statement of general duty at common law. — There 
 is this distinction between the duty of a municipal cor- 
 poration to keep a bridge under its control in safe con- 
 dition for travel, and the duty to keep the street or road 
 itself in such condition — namely, in the first case the 
 corporation is dealing with an entirely artificial structure, 
 while in the second the question of duty with regard to 
 mere neglect of a country road often arises.* The obliga- 
 tion to keep structures built by the corporation in reason- 
 ably safe condition for use is perhaps stronger than the 
 general duty with respect to roads, and in some courts 
 an action for a violation of the duty to repair bridges is 
 allowed when none can be maintained for neglect to 
 repair roads.* In both instances, however, it is believed that 
 the duty exists at common law, and that the public finds 
 safety and protection in the exercise of care by the cor- 
 poration in respect to the entire highway. But where 
 the liability for defective highways is statutory, whether 
 there is responsibility for a failure to keep bridges in 
 repair, must be determined by^ reference to the statute.® 
 
 ' S'a^ra, § 54. L. 131; Dillon on Munic. Corp., 
 
 ' Supra, n. I, p. 117. § 836. 
 
 "State V. Demaree, 80 Ind. 519 ■'5«>>ra, §49. 
 (1881); State V. Supervisors, 41 Wis. ' Supra, %% 65, 66. 
 28 (1876); State V. Orange, 31 N. J. ^ Infra, Chap. XV., %\-2& et seq. 
 15 
 
226 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § II9 
 
 The duty which at common law rests upon every in- 
 corporated municipality, is to exercise reasonable care to 
 keep all the bridges under its control and open to the 
 public in a safe condition for ordinary use.* 
 
 § 119. Duty exists whoever builds, if corporation controls.— 
 If the corporation itself builds the bridge pursuant to 
 proper authority, and opens it to the public, the matter 
 of control is easily settled by reference to the acts or 
 proceedings pursuant to which it was constructed. But 
 the responsibility of municipal corporations is not limited 
 to bridges erected by themselves ; and in general it may 
 be said that whoever builds is immaterial, where once the 
 corporation assumes control and leads the public to be- 
 lieve that the bridge is under its protection.* 
 
 Where a bridge is built which the corporation had 
 no authority to construct there is also liability for negli- 
 gence when control has been assumed.* 
 
 1 Jacksonville v. Drew, 19 Fla. 106 ester, 15 Abb. N. C. 57 (1884); 
 
 (1882); Denver v. Dunsmore, 7 Col. Joliet v. Verley, 35 111. 58 (1864). 
 
 328 (1884); Jordan v. Hannibal, 87 a In Langlois v. Cohoes, 58 Hun 
 
 Mo. 673 (1885); Cooper v. Mills 226 (i89o),Learned, P. J.,says: "The 
 
 County, 69 la. 354 (1886); Shadier v. defendant further urges that defend- 
 
 Blair County, 136 Pa. 488, 20 Atl. ant had no right to construct or keep 
 
 Rep. 539 (1890); Howard County a bridge over this branch of the Mo- 
 
 Com. V. Legg, no Ind. 479 (i886); hawk, and would have been a tres- 
 
 Requa v. Rochester, 45 N. Y. 129 passer in going on the bridge to 
 
 (1871); Mechanicsburg V. Meredith, make repairs. This position rests on 
 
 54 111. 84 (1870); Am. & Eng. Encyc. the cases of Carpenter v. Cohoes, 81 
 
 ofLaw,vol. 2, p. 540; j«/ra,§§ 51-55; N. Y. 21, and Veeder v. Little Falls, 
 
 infra, % 121. 100 Id. 343. But these are quite 
 
 ^ McDonald v. Ashland, 47 N. W. different from this. There it was held 
 
 Rep. 434 (1890); Marseilles v. How- that the city was not bound to go 
 
 land, 124 111. 547; Houfe v. Fulton, upon an approach to a bridge and 
 
 34 Wis. 608, 17 Am. Rep. 463 (1874); put a railing thereon, where the ap- 
 
 Bishop v. Centralia, 49 Wis. 669; proach and the bridge were State 
 
 Goshen v. Myers, 119 Ind. 196 (1889); property. 
 
 Howard County v. Legg, no Ind. "Now, in this case, Adams built 
 
 479 (1886); Requa v. Rochester, 45 this bridge in 1876 from an island 
 
 N. Y. 129 (1871); Schomer v. Roch- owned by him to vacant land on the 
 
I20 
 
 NEGLECT TO REPAIR BRIDGES. 
 
 227 
 
 Where a bridge over a highway is maintained by a 
 railway company,^ or by an individual, the primary 
 liability for want of repair rests on the corporation or 
 individual in charge, but the municipality in control of 
 the highways must exercise care to see that the duty is 
 performed, and is liable for injuries occasioned by neglect 
 to do so.^ 
 
 § 120. Duty where control is divided, — Where a bridge 
 connects two States and is under the control of the State 
 authorities, no action can be brought for neglect of the 
 duty to exercise care to keep it in a suitable condition 
 for use — as the State cannot be sued except by its own 
 
 •west side of the south branch of the 
 Mohawk. He sold building lots on 
 his island, and houses were built 
 thereon. People used the bridge in 
 crossing from his island to the other 
 part of the city. 
 
 " The bridge was within the city 
 limits. In i886, as above stated, the 
 common council passed a vote ac- 
 cepting this bridge, and declaring it 
 open to public travel. After the 
 freshet of 1887, above mentioned, the 
 street superintendent repaired the 
 bridge, putting in new floor timbers. 
 His attention was then called to this 
 defective railing. 
 
 "V\^hether the State might not 
 cause this bridge to be removed we 
 need not say. It had been allowed 
 to remain some twelve years, and 
 had been used by the public during 
 that time. The case comes within 
 thatofSewell V. Cohoes, 75 N. Y.45." 
 See infra, § 174. 
 
 ' In Massachusetts the duty to re- 
 pair and liability for failure are put 
 upon the railway company alone. See 
 Sawyer v. Northfield, 61 Mass. 490 
 (1851) ; Rouse v. Somerville, 130 
 Mass. 361 (1881). Compare Bury v. 
 Lancashire, etc. Railway Co., L. R. 
 
 20 Q. B. D. 485, 42 Am. & Eng. R. C. 
 56 (1888). 
 
 " See Murphy v. Suburban Rapid 
 Transit Co., 40 N. Y. St. Rep. 228, 
 15 N. Y. Supp. 837 (1891); Tierney 
 V. Troy, 41 Hun 120 (1886); Wilson 
 v, Watertown, 3 Hun 508 ; Campbell 
 V. Stillwater, 32 Minn. 308 (1884); 
 Eyler v. Alleghany Co. Com., 49 Md. 
 257, 33 Am. Rep. 249 (1878); Watson 
 V. Tripp, II R. I. 98, 23 Am. Rep. 
 420 (1874). In Dalton v. Upper 
 Tyrone Tp., 137 Pa. 18 (1890), in 
 regard to a highway that had been 
 substituted by a third party, Mr. 
 Justice Sterrett said : " It was the 
 duty of the township authorities to 
 see that the substituted highway, in- 
 cluding the bridge and approach to 
 it, were kept in such condition as to 
 be reasonably safe for public travel. 
 If they failed to do so, and the plain- 
 tiff, without any fault of his own, fell 
 over the unguarded embankment, and 
 was injured in consequence of their 
 neglect, the township is liable. It 
 authority for this proposition be need- 
 ed, it may be found in Burrell Tp. v. 
 Uncapher, 117 Pa. 353, 354; Plym- 
 outh Tp. V. Graver, 125 Pa. 24; Cor- 
 balis V. Newberry Tp., 132 Pa. 9." 
 
228 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 120 
 
 consent.' But if the control of the bridge is given to 
 municipal corporations an action can be brought for 
 damages received because of a neglect of this duty.* It 
 would seem, moreover, that the liability would be com- 
 mensurate with the duty ; and if each corporation was 
 charged with the duty of keeping the entire bridge 
 in repair, each should be responsible for damages re- 
 ceived at any point on the bridge. Aside from any 
 statutory or contract duty, however, the obligation of the 
 corporations would be limited by the boundaries of their 
 territory, and each would be liable only for injuries hap- 
 pening within its own limits.^ So in regard to bridges con- 
 necting different municipahties in the same State, the ex- 
 tent of the duty will be the guide in fixing the extent of 
 liability, and if the obligation imposed upon each is to 
 care for the entire bridge, an action for damages may be 
 maintained against either for injuries received, anywhere 
 on the bridge.* If, however, the duty is limited to a 
 
 ' Supra, § 21. In Rexford v. New within its boundary." But they cite 
 York, 105 N. Y. 229 (1887), an action to sustain the last proposition the case 
 was allowed under a statute for the of Brown v. Fairhaven, 47 Vt. 386. 
 failure of the State authorities to keep See infra, §§131, 138. 
 a bridge over a canal in a reasonably ■• In Hawxhurst v. New York, 43 
 safe condition for use. See McDon- Hun 588 (1887), Bartlett, J., says: 
 aid V. State, 27 N. E. Rep.. 358 " The position of the city is that its 
 (1891). obligation to erect barriers, when they 
 '^ Supra, § 23. are necessary, is limited to the New 
 = Sherman & Redfield on Neg. , at York end of the bridge, while West- 
 § 394, say : " When a bridge crosses Chester County alone can lawfully put 
 a stream which divides two counties them up at the extremity on the other 
 or towns, the duty to repair is gener- side of the Bronx River. This position 
 ally imposed upon both, by the statute; is not tenable. The statute requires 
 and, by the common law, where such both municipalities to build, maintain, 
 statutes do not prevail, both the towns and keep in repair the public bridges 
 and counties are liable for injuries re- over that stream. The duty thus im- 
 sulting from failure to repair such a posed relates to the whole of each 
 bridge. But when the bridges are structure, so far as the public are con- 
 between two States the authorities of cerned, and carries with it the author- 
 each are solely liable for injuries re- ity to do whatever is necessary to the 
 ceived upon the part of the bridge proper discharge of that duty. In a 
 
§ I20 
 
 NEGLECT TO REPAIR BRIDGES. 
 
 22g 
 
 particular territory, responsibility for defects beyond that 
 limit cannot be put upon the corporation.^ This question, 
 however, is often regulated by statutes.^ 
 
 Where bridges belonging to a county are situated with- 
 in the limits of a city, town, or village, there will be no 
 responsibility on the part of the chartered municipality 
 until it assumes control of the bridge unless liability is 
 put upon it by statute.^ When it once undertakes to keep 
 the bridge in repair, however, it will be liable for damages, 
 although some other person or corporation may own it.* 
 
 case like the present, the erection of 
 a suitable barricade was essential, and 
 both municipalities, or either, if the 
 other neglected to act with it, might 
 rightfully put up the barriers wherever 
 they were needed to afford reasonable 
 
 protection to the public In 
 
 Theall v. Yonkers, 2i Hun 265, the 
 injury was sustained on the East 
 Chester end of a bridge between East 
 Chester and Vonkers, maintained by 
 both the town and the city, and the 
 court declared that, by reason of the 
 place where the accident happened, 
 the city was not liable. The expres- 
 sion of this opinion, however, does 
 not seem to have been necessary to 
 the decision ; and, furthermore, it is 
 apparently based upon the view that 
 under the general statute relating to 
 bridges between towns (Laws of 1841, 
 chap. 225), the duty of each town to 
 maintain the bridge does not extend 
 beyond its own limits. We construe 
 the special statute applicable to this 
 case differently." 
 
 ' Theall v, Yonkers, 21 Hun (N. Y.) 
 265 (1880). 
 
 * Infra, Chap. XV., %\^(> ei seq. 
 
 ' In Spicer v. Elkhart Co., 126 Ind. 
 369 (1890), a bridge built origfinally by 
 a county, but repaired by the city and 
 within the city limits, was held to be 
 
 repairable by the city in the absence 
 of a special duty on the county to re- 
 pair it. See Eudora v. Miller, 30 Kas. 
 494 (1883) ; Owen County v. Wash- 
 ington Tp., 121 Ind. 379, 23 N. E. 
 Rep. 257 (1890); Stebbins v. Keene 
 Tp., 60 Mich. 214, 26 N. W. Rep. 885 ; 
 Taylor v. Constable, 32 N. Y. St. 
 Rep. 482. In Quinlan v. Manistique 
 (Mich.), 48 N. W. Rep. 172, it was 
 held that a village was not liable 
 under the Michigan statute for a de- 
 fective bridge on a township high- 
 way through a village, when the vil- 
 lage charter relieved the corporation 
 from ordinary highway taxes. Spear- 
 bracker v. Larrabee, 64 Wis. 573 
 (1885), a town is liable in Wisconsin, 
 under the statute, for bridges situated 
 on a town or county road in a village. 
 In Goshen v. Myers, 119 Ind. 196 
 (1889), it was held that a city was lia- 
 ble in Indiana for neglect to repair a 
 county bridge which existed within 
 city limits, and over which the city 
 had exercised control. See Madison 
 County v. Brown, 89 Ind. 48 (1883). 
 But in Daniels v. Athens, 55 Ga. 609 
 (1876), it was held that if a county 
 owns a bridge within the limits of a 
 town the county alone is responsible 
 for a failure to repair. 
 * Supra, § 119. 
 
230 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § I20 
 
 And if two or more municipalities are responsible, any 
 one of them may be sued.* 
 
 ' Lyman v. Williston, 62 Vt. 269, 20 
 Atl. Rep. 304 (1890); Weisenberg v. 
 Winneconne, 56 Wis. 667 (1883). 
 Whether this would be true in respect 
 to New York and Brooklyn Bridge 
 may be doubted. In Walsh v. New 
 York et al., 107 N. Y. 220 (1887), 
 Earl, J., says : " The New York and 
 Brooklyn Bridge was constructed 
 under the acts, chapter 399 of the 
 Laws of 1867, chapter 601 of the 
 Laws of 1874, and chapter 300 of the 
 Laws of 1875. In section i of the 
 latter act it was provided that the 
 bridge should be completed and man- 
 aged ' for and on behalf of the cities 
 of New York and Brooklyn as a con- 
 solidated district for that purpose.' 
 As was said by us in People ex rel. 
 Murphy v. Kelly, 76 N. Y. 475, 489, 
 it is not perceived for what purpose 
 the language, 'as a consolidated dis- 
 trict,' found in the act of 1875, was 
 inserted. It certainly has no bearing 
 upon this discussion, and adds noth- 
 ing to the force of the other language 
 used. The bridge was to be com- 
 pleted and managed on behalf of the 
 two cities jointly. Section 3 of the 
 same act provides that the bridge 
 'shall be a public work to be con- 
 structed by the two cities.' The two 
 cities, in the proportions mentioned 
 in the act, were to furnish all the 
 funds for the construction of the 
 bridge. The trustees of the bridge 
 were to be appointed by the city offi- 
 cials of the two cities. All the real 
 estate purchased by the trustees was 
 to belong to the two cities jointly, and 
 the bridge and all its appurtenances, 
 and all the property connected with it, 
 was to belong absolutely to the two 
 cities in shares to each of the cities 
 equal to the amount paid by them for 
 
 the construction of the bridge and for 
 the land and appurtenances thereof. 
 All the revenues of the bridge were to 
 belong to the two cities, and were to 
 be used for the payment of the in- 
 debtedness created by the cities for 
 its construction. As the bridge is the 
 property of two cities, any revenue 
 derived therefrom, after the payment 
 of debts created for the construction 
 thereof, would go into the treasuries 
 of the two cities. So, in every sense 
 and in every view, the bridge was 
 constructed and is managed for the 
 two cities, and the trustees ap- 
 pointed by the city officials represent 
 the two cities as their agents. Hence, 
 they and the persons employed by 
 them are the agents and servants of 
 the cities, for whose careless and neg- 
 ligent acts they are liable. Ehrgott v. 
 Mayor, etc., 96 N. Y. 264. This con- 
 clusion, we think, is rendered neces- 
 sary by our prior decisions in the case 
 of the People ex rel. Murphy v. 
 Kelly {supra), and in the case of this 
 plaintiff for this same accident against 
 the trustees of the New York and 
 Brooklyn Bridge (96 N. Y. 427)." 
 
 See in regard to contributions for 
 the maintenance of bridges sustained 
 by two or more municipalities : Hav- 
 erhill V. Groveland, 152 Mass. 510 
 (1890); Flynn v. Kurd, 118 N. Y. 19 
 (1889); Day V. Day, 94 N. Y. 153 
 (1883); Beckwith V. Whalen, 70 N. Y. 
 430 (1877); Seigel V. Isen, 41 Cal. 
 109; Macon Co. v. People, 121 111. 
 616 (1887); Dominick v. Waltham, 
 100 111. 631 (1881); Dayton v. Rut- 
 land, 184 111. 279 (1876); Shawnee 
 County V. Topeka, 39 Kas. 197 ; Ag- 
 awam v. Hampden, 130 Mass. 528; 
 Saukville v. State, 69 Wis. 178. 
 
§121 
 
 NEGLECT TO REPAIR BRIDGES. 
 
 231 
 
 § 121. Defects in bridges. — The municipal corporation in 
 control of a public bridge must use reasonable care to 
 see that it is kept in safe condition for ordinary travel, as 
 we have seen,^ and this general duty imposes upon the 
 corporation the obligation of exercising reasonable care 
 to keep the flooring of the bridge in repair,'' the railings 
 in position,' and to keep the approaches to the bridge. 
 
 ' Supra, § 118. 
 
 ' Griffin v. Johnson, 84 Ga. 279, 10 
 S. E. Rep. 719 (1890), hole in bridge 
 from five to twenty days on an im- 
 portant street ; Bradford v. Anniston 
 (Ala.), 8 So. Rep. 683 (1890), hole in 
 approach to bridge seen by street 
 overseer at 9 A.M., injury at i P.M., 
 no warning given to public ; Lyman 
 V. Hampshire, 140 Mass. 311 (1884), 
 hole in bridge ; Strong v. Stevens 
 Point, 62 Wis. 255(1885), hole through 
 which a boy fell ; Jacksonville v. Drew, 
 19 Fla. 106 (1882), planks loose and 
 railing defective ; Atlanta v. Champe, 
 66 Ga. 659 (1881), hole in bridge over 
 drain ; Atlanta v. Buchanan, 76 Ga. 
 585 (1886); Page V. Bucksport, 64 
 Me. 51, hole in bridge; Koenig v. 
 Arcadia, 75 Wis. 62, crack in plank 
 with rotten board underneath ; Lee 
 County V. Yarbrough, 85 Ala. 590, 
 5 So. Rep. 341 (1888), hole in bridge 
 through which stock fell ; Sherman v. 
 Nairey, 77 Tex. 291 (1890); Weet v. 
 Brockport, 16 N. Y. 161 (1857). 
 
 ^ Langlois v. Cohoes, 58 Hun 226, 
 34 N. Y. St. Rep. 288 (1890); Hyatt 
 v. Rondout, 44 Barb. (N. Y.) 385 
 (1863); Ward V. North Haven, 43 
 Conn. 148 (1875); Bronson v. South- 
 bury, 37 Conn. 199 (1870); Loewer v. 
 Sedalia, 77 Mo. 431 (1883); Staples 
 v. Canton, 69 Mo. 592 (1879); Eudora 
 v. Miller, 30 Kas. 494 (1883); Jackson- 
 ville v. Drew, 19 Fla. 106 (1882); Gray- 
 ville V. Whitaker, 85 111. 439 (1877); 
 Albee v. Floyd Co., 46 la. 177 (1877); 
 
 Woodman v. Nottingham, 49 N. H. 
 387 (1870); Norris v. Litchfield, 35 
 N. H. 271 ; Stickney v. Salem, 85 
 Mass. 374 ; Rice v. Montpelier, 19 
 Vt. 470. 
 
 In Walker v. Kansas City, 99 Mo. 
 647, 29 Am. & Eng. C. C. 483 (1889), 
 it was held that both sides of the 
 bridge should be safe, and Brace, J., 
 said : " The appellant offered the fol- 
 lowing instruction, which was refused: 
 ' I. You are instructed that negligence 
 is the omission to discharge a duty, 
 and you are instructed that it was not 
 necessarily the duty of the defendant 
 to keep both sides of said bridge com- 
 plained of in a safe condition, but it 
 was its duty only to keep as much 
 thereof in such condition as was nec- 
 essary to render it reasonably safe for 
 travel ; and you will find for the de- 
 fendant, although you may believe 
 that one side of said bridge was de- 
 fective and in a dangerous condition, 
 provided you further believe from the 
 evidence that only one side or a part 
 of said bridge was in such condition, 
 and that the remaining part was suffi- 
 cient and reasonably safe and con- 
 venient for travel thereon.' .... 
 
 " The only reason urged, and the 
 only one that we can see that could 
 be given, why it was error in the 
 court to refuse this instruction, is, that 
 in the case of Tritz v. City of Kansas, 
 84 Mo. 632, a similar instruction was 
 refused ; and it was held in the opin- 
 ion of Commissioner Ewing that it 
 
232 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 121 
 
 the passageway for vehicles, and the footwalk for pedes- 
 trians in a suitable condition for use.^ Persons using the 
 bridge are entitled to assume that it is safe for use if it is 
 
 should have been gfiven. The facts 
 in that case do not sufficiently appear 
 in the opinion to enable us perhaps to 
 fully appreciate its exact force and 
 bearing upon the merits of that par- 
 ticular case ; but, considered in the 
 abstract, we have no hesitation in 
 saying that the proposition that, as 
 matter of law, it can or ought to be 
 declared, that a city is not responsible 
 for injuries resulting from the de- 
 fective and dangerous condition of its 
 streets or sidewalks which it has pre- 
 pared for the use of the traveling 
 public, to which injury the party in- 
 jured has not contributed by his own 
 negligence, if a part of such street or 
 sidewalk is reasonably safe and con- 
 venient for travel thereon, is not sound, 
 and if that ease is to be understood as 
 sanctioning that doctrine, in so far as 
 it can be said to do, it is not sustained 
 by the authorities cited, and ought to 
 be overruled. Bassett v. St. Joseph, 
 53 Mo. 290; Brown v. Glasgow, 57 
 Mo. 1 56 ; Craig v. Sedalia, 63 Mo. 
 417; Staples V. Town of Canton, 69 
 Mo. 592 ; Brennan V. City of St. Louis, 
 92 Mo. 482 ; Streeter v. City of Breck- 
 enridge, 23 Mo. App. 244 ; Taubman 
 V. City of Lexington, 25 Mo. App. 218. 
 " A city is not necessarily required 
 to open or put all of its streets in a 
 condition for public travel, or all parts 
 of its streets in such condition, but 
 when it does open and undertake to 
 put a street in condition for such 
 travel as a whole, or a part thereof, it 
 must keep such street, or such part 
 thereof, as it does undertake to open 
 and put in such condition in its en- 
 tirety, reasonably safe for such travel. 
 In this case the city had prepared this 
 
 bridge for public travel, and it was its 
 duty to keep it as a whole in a rea- 
 sonably safe condition for such travel, 
 and for its neglect in not doing so, in 
 that it failed within a reasonable time 
 after notice to restore the railing on 
 the west side, it became liable for 
 damages for the injuries to the plain- 
 tiff, a traveler exercising ordinary care 
 in attempting to cross it, resulting 
 from such neglect as found by the 
 jury." 
 
 ' Murphy v. Suburban Rapid Tran- 
 sit Co., 40 N. Y. St. Rep. 228 (1891); 
 Carpenter v. Cohoes, 81 N. Y. 24 
 (1880); Tyler v. Williston, 62 Vt. 
 269 (1890); Morrell v. Peck, 88 N. Y. 
 398 (1882); Chicago v. Powers, 42 111. 
 169 (1866); supra, p. 226, n. i. But 
 there is no liability to one who is 
 straying beyond the traveled path, 
 Harwood v. Oakham, 152 Mass. 421 
 (1899), where Devens, J., says; "If 
 the traveler's horse strays by accident 
 from the traveled path, that being safe 
 and convenient, and he pursues him 
 beyond those limits in order to resume 
 and continue his journey, he must do 
 so at his own peril. The same rule 
 must apply where the companion or 
 servant of the traveler has wandered 
 beyond those limits. If, in order to 
 relieve or rescue him, the traveler 
 also passes beyond, he enters upon 
 land which the town is not bound to 
 keep in repair for his use on his jour- 
 ney. To extend its liability for in- 
 juries there occurring would be to 
 subject a town to the necessity of 
 keeping in repair the whole way as 
 located, which it certainly is not bound 
 to do." See Abernethy v. Van Buren, 
 52 Mich. 383 (1884). This is the rule 
 
122 
 
 NEGLECT TO REPAIR BRIDGES. 
 
 233 
 
 open,' and when it becomes dangerous, and the corpora- 
 tion learns of this fact, the public should be warned of 
 the danger, and in some cases the bridge should be closed 
 until it can be made safe.^ 
 
 It is to be remembered, however, that a municipal cor- 
 poration is not an insurer of the safety of its bridges ; ^ 
 that in all cases, actual or constructive, notice of defects 
 must be attributable to them,* and that only corporations 
 under the duty to repair can be made responsible for 
 damages.* 
 
 § 122. Examinations for defects.— Municipal corpora- 
 tions are chargeable with knowledge of the operation of 
 natural causes ; and in the same manner that they are to 
 guard against decay in board walks,^ they are to protect 
 the public from injuries by reason of the ordinary decay 
 
 where the doctrine of common-law 
 liability prevails as well as where the 
 statute imposes responsibility. See 
 supra, §§ 83, 96. As to whether there 
 is responsibility for bridges which 
 frighten horses, see infra, Chap. XXI. 
 
 • Apple V. Marion County, 127 Ind. 
 S53, 27 N. E. Rep. i66 (1890); Elk- 
 hart V. Ritter, 66 Ind. 136; Indian- 
 apolis V. Gaston, 58 Ind. 224 ; Taylor 
 V. Constable, 32 N. Y. St. Rep. 482 ; 
 Pembroke v. Hannibal, etc. R. Co., 
 32 Mo. App. 61 ; Strong v. Stevens 
 Point, 62 Wis. 255 (1885). 
 
 " Carney v. Marseilles (111.), 26 N. 
 E. Rep. 491 (1891); supra, § 75. See 
 Humphreys v. Armstrong Co., 3 Brew- 
 ster 49. 
 
 ' Wabash County v. Pearson, 120 
 Ind. 426, 29 Am. & Eng. C. C. 472, 
 22 N. E. Rep. 134 ; Blank v. Livonia 
 (Mich.), 44 N. W. Rep. 1 57 ; McKellar 
 v. Monitor Tp., 44 N. W. Rep. 412; 
 Wilson V. Granby, 47 Conn. 59 (1879); 
 
 Koenig v. Arcadia, 75 Wis. 62, 43 
 N. W. Rep. 734; supra, %% 72, 118. 
 
 * Infra, Chapter XX. 
 
 ' Compare Yeager v. Tippecanoe 
 Tp., 8i Ind. 46 (1881); Zimmerman 
 v. Conemaugh Tp., 2 Cent. Rep. 361 
 (1886); Newlin v. Davis, 77 Pa. 317 
 (1875); Moore v. Kenockee Tp. 
 (Mich.), 42 N. W. Rep. 944 (1889); 
 see supra, § 68. 
 
 See upon the question of the care 
 required from the managers of a 
 toll bridge: Thrasher v. Postal, 48 
 N. W. Rep. 600 (1891); St. Louis 
 Bridge Co. v. Miller (111.), 28 N. E. 
 Rep. 1091 ; Baltimore, etc. Turn- 
 pike V. State, 71 Md. 573 (1889); 
 Stokes V. Tift, 64 Ga. 312 (1879); Or- 
 cutt V. Kittery Bridge Co., 53 Me. 500. 
 When a municipality purchases a toll 
 bridge and opens it to the public, it 
 must be maintained in a reasonably 
 safe condition. Marseilles v. Howland, 
 124 111. 547 (iJ 
 
 » Supra, % 94. 
 
234 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 122 
 
 of the timbers or planks of a bridge.^ Reasonable ex- 
 amination in each case is all that is required, and the 
 amount of inspection undertaken must be adequately 
 proportioned to the location of the bridge, to the uses to 
 which it is put, and to the standard of reasonableness 
 that the residents of that particular municipality deem 
 appropriate in the care of the highways.* And if the 
 defects are not discoverable by reasonable inspection, 
 injuries occasioned by them will not create liability.^ 
 
 ' In La Salle v. Porterfield (111.), 27 
 N. E. 937 (1891), it was said : " It is 
 the duty of municipal ofificers to use 
 ordinary care in keeping its bridges, 
 culverts, etc., in safe condition for 
 public travel, and this involves the 
 anticipation of defects that are the 
 natural and ordinary result of use and 
 climate influences, and so, whenever 
 there is neglect on the part of the 
 proper officers to make a sufficiently 
 frequent examination of a particular 
 structure, a municipality will not be 
 relieved from liability, although the 
 defect may not be open and notorious. 
 Elliott, p. 462. Stebbins v. Keene 
 Tp., 55 Mich. 552, 22 N.W. Rep. 37 ; 
 Sterling v. Merrill, 124 111. 552, 11 
 N. E. 6." 
 
 See also Moon v. Ionia, 81 Mich. 
 635, 46 N. W. Rep. 45 (1890); Mc- 
 Kellar v. Monitor Tp., 78 Mich. 485 
 (1889); Medina v. Perkins, 48 Mich. 
 67 ; Stebbins v. Keene Tp., 60 Mich. 
 214, 26 N. W. Rep. 885 ; Spaulding 
 v. Sherman, 75 Wis. 77, 43 N. W. 
 Rep. 558 (1889); Howard County v. 
 Legg, no Ind. 479 (1886), 93 Ind. 
 523, 47 Am. Rep. 390 (1883); Fort 
 Wayne v. Coombs, 107 Ind. 75 ; 
 Lehigh County v. Hafford, 2 Am. St. 
 Rep. 591 ; Ford v. Umatilla Co. (Or.), 
 16 Pac. Rep. 33 (1887); Humphreys v. 
 Armstrong Co., 56 Pa. 204 (1867); 
 Smoot v.Wetumpka,24Ala.i 1 2(1854). 
 
 ' Compare infra, § 190. 
 
 It has been said : " It is true of 
 counties that more time ought to be 
 allowed in which to ascertain the un- 
 safe condition of a bridge than should 
 be allowed towns or cities, for the 
 means of obtaining knowledge are not 
 so efBcient as in the case of cities, 
 and the county officers are charged 
 with duties covering a much larger 
 and much more sparsely settled ter- 
 ritory than that of a town or city, so 
 that it would not be just to deal with 
 them as strictly as with town or city 
 officers." Elliott on Roads and Streets, 
 p. 50. 
 
 'O'Neil V. Deerfield Tp. (Mich.), 
 49 N. W. Rep. 596 (1891); Loar v. 
 Hesing, 28 111. App. 584. 
 
 In Vermillion County v. Chipps, 29 
 N. E. Rep. 1066 (1892), where a 
 bridge broke when a traction engine 
 was passing over it, Coffey, J., says : 
 " Nor do we think the evidence sus- 
 tains the charge that the county was 
 guilty of negligence in failing to keep 
 the bridge in repair. About two or 
 three weeks prior to the accident we 
 are now considering, the proper legal 
 authority employed a competent per- 
 son to examine the bridge and put 
 the same in good repair. He pro- 
 ceeded to do so, and gave the timbers 
 such examination as he deemed neces- 
 sary to test their soundness, and did 
 
§§123, 124 NEGLECT TO REPAIR BRIDGES. 235 
 
 § 123. Special duties respecting draw-bridges. — Where 
 municipal corporations control draw-bridges, they must 
 exercise care to prevent injury to those desiring to pass 
 over the bridge, and must protect the open draw by a 
 barrier, and by lights at night.^ They must also furnish 
 a reasonably safe passageway for vessels, and are respon- 
 sible for damages coming from a neglect of this duty.** 
 Municipalities are ordinarily responsible for negligence 
 of their employees which makes a highway unsafe, but 
 where the liability of these corporations is statutory, un- 
 less the negligence creates a defect in the way under the 
 statute there will be no liability, and it is accordingly 
 held in Massachusetts that the negligence of a draw- 
 tender, who beckons a traveler on a bridge when the 
 draw is open, will not support an action against the city 
 owning the bridge.® 
 
 § 124. Want of funds to repair. — If a bridge is so out 
 of repair that it is unsafe to use it at all, and the author- 
 ities are aware of its condition, there can be little doubt 
 that neglect to close it to the public will make the cor- 
 poration liable, even if it has no funds to repair it.'' And 
 for an injury occasioned by a known hole in the flooring 
 of a bridge, a municipal corporation should be made 
 liable, regardless of the question of funds. Perhaps the 
 
 such otherthings as he thought neces- Chicago v. Gavin, i 111. App. 302 ; 
 
 sary to make the bridge safe. If he McDougal v. Salem, no Mass. 21; 
 
 made a mistake, the county cannot be Manley v. St. Helen's Canal, etc. Co., 
 
 charged with negligence by reason of 2 H. & N. 840(1858). See Hart v. 
 
 such mistake. Theduty of the county Hudson River Bridge Co., 84 N. Y. 
 
 was to exercise reasonable care in 56 (1881). 
 
 selecting a proper person to examine " See Ripley v. Freeholders of Essex 
 
 and repair the bridge, and to require Co., 40 N. J. L. 45 (1875). 
 
 of him the exercise of his skill, and if * Butterfield v. Boston, 148 Mass. 
 
 it did so, and the bridge still remained 544, 20 N. E. Rep. 113(1889). Cf. 
 
 unsafe, the county was not liable." French v. Boston, 129 Mass. 592. 
 
 'Scott V. Chicago, i Biss. 510; * Carney v. Marseilles (III.), 26 N. 
 
 Chicago V. Wright, 68 111. 586 (1873); E. Rep. 491 (1891). 
 
236 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § I25 
 
 defense of want of funds might be successfully interposed 
 where a railing is needed on a bridge, and the corpora- 
 tion has no means of securing the money to build it.* But 
 a dangerous bridge ought not to have been erected, and 
 ought not to be maintained at all, and if it is in the con- 
 trol of a municipal corporation, and is open to the public 
 for use, the best rule would seem to be to make the cor- 
 poration responsible for any damages which are justly 
 traceable to its condition.* 
 
 § 125. Extent of liability of common law for defect in 
 highways. — By the common law the fact that the public 
 is authorized to use a certain street or way by a munic- 
 ipal corporation in charge thereof, is sufficient to estab- 
 lish the duty of the corporation to exercise reasonable 
 care to keep the way safe. Therefore, the character of 
 the way is not vitally important. It may be a street, a 
 road, a sidewalk, an alley, or a bridge.^ But the fact of 
 its existence as a way is essential to the establishment of 
 liability. Rivers flowing by or through cities are not 
 highways which municipalities must keep clear of ob- 
 structions.* Authority to use them does not come from 
 the corporation. So, the seashore, except perhaps in 
 cases where a driveway is openly maintained there, is 
 not a place intended to be used as a highway on which 
 the municipality owning the shore is bound to keep 
 in repair as such.^ 
 
 ' Supra, p. 142. open to all the king's subjects, and not 
 ■2 Compare supra, % 75. See Hart- to a limited number only." Beven 
 nail V, Ryde Commissioners, 33 L. on Neg., p. 1012. 
 J. Q. B. 39. J Seamen v. New York, 80 N. Y. 
 * " A highway in English law is the 239, 21 Alb. L. J. 275. But a tunnel 
 largest expression to designate a pub- under a river is a highway. Chi- 
 lic way, and includes all roads, bridges cago v. Hislop, 61 111. 86 (1871). 
 (not being county bridges), carriage- ' In Murphy v. Brooklyn, 98 N. Y. 
 ways, cartways, horseways, bridle- 642 (1885), it was said: "The sea- 
 ways, footways, causeways, church- shore is not a highway for public 
 ways, and pavements, and is a way travel upon foot or with vehicles. It 
 
CHAPTER XV. 
 
 STATUTORY LIABILITY FOR NEGLECTING HIGHWAYS. 
 
 § 126. Scope of chapter. 
 
 127. Distinctive features of statutory liability. 
 
 128. Liability in Massachusetts. 
 
 129. Maine. 
 
 130. New Hampshire. 
 
 131. Vermont. 
 
 132. Connecticut. 
 
 133. New Jersey. 
 
 134. Rhode Island. 
 
 135. Michigan. 
 
 136. Wisconsin. 
 
 137. South Carolina, West Virginia, etc. 
 
 138. Notice of injury. 
 
 § 126. Scope of chapter. — The doctrine that there is no 
 common-law liability for damage occasioned by the neglect 
 of a municipal corporation to repair a highway, as has 
 been shown, prevails in New England, and to some ex- 
 tent elsewhere.^ In the States where this rule has been 
 enforced by the courts, statutes usually have been adopted 
 to provide a remedy for those who may be injured by 
 municipal neglect of this character. And it is proposed 
 in this chapter to give some brief extracts from these 
 statutes, to refer to a few of the points in regard to which 
 the statutory liability differs from the common-law lia- 
 
 is part of the ocean, and that is a pub- or for any other lawful purpose. But 
 
 lie highway for vessels. Every one obviously he must use the shore as he 
 
 can, however, unless the public au- finds it, and he can look to no one for 
 
 thorities by lawful action interfere, any damages he sustains there from 
 
 go upon the seashore between high any defects therein." 
 
 and low water mark to fish, to bathe, ' Supra, §§ 44, 54. 
 
238 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 12/ 
 
 bility, and to show how thoroughly the decisions of the 
 courts in these States are controlled by the statutes existing 
 there. The States included in this classification are only 
 those wherein the right of action for damages is given 
 by statute, and where the theory is held that no such 
 action is maintainable except by virtue of the statute. 
 The duty to repair streets is often put upon municipali- 
 ties by charter or statute, and is, in one sense, always 
 statutory ; but the right of action for damages in the 
 majority of the States is not conferred by the statute, 
 but is a common-law remedy. That a State, therefore, 
 is not included within those mentioned here, does not 
 mean that there are no statutes within its jurisdiction 
 affecting the care of highways, but simply that an action 
 for damages suffered from neglect to exercise reasonable 
 care to keep highways in a safe condition for ordinary 
 use is allowed there at common law and upon general 
 principles of justice. 
 
 § 127. Distinctive features of statutory liability. — From 
 the position that a municipal corporation cannot be held 
 responsible for damages occasioned by its neglect to keep 
 its streets in reasonably safe condition for use unless the 
 right of action is given by statute, important results fol- 
 low, for in a case where the remedy exists at common 
 law the questions to be considered are dependent upon 
 the general principles of right and justice applicable to 
 each ; but where the liability depends upon statute, rules 
 of statutory construction apply, and one claiming the 
 benefit of the statute must bring himself clearly within 
 its terms. In other words, the statute itself contains the 
 full extent of liability of municipal corporations with re- 
 spect to streets, sidewalks, public parks, bridges, and 
 highways of every character. To charge a municipality 
 in any one of these States, therefore, with liability for 
 negligence in regard to its highways, the statute of that 
 
§ 128 STATUTORY LIABILITY NEGLECTING HIGHWAYS. 239 
 
 particular locality and the construction put upon it by 
 the courts must be carefully examined and strictly fol- 
 lowed. And the statutes of one State will/urnish no 
 indication of the extent of the liability in another, for 
 there appears to be much more dissimilarity in respect to 
 the liability for defective ways among the statutory States 
 than there is among the States where the common-law 
 rule maintains. 
 
 § 128. Liability in Massachusetts. — The statute in Mass- 
 achusetts^ requires all "highways, townways, streets. 
 
 ■ Public Statutes of Massachusetts 
 (1882, p. 347), chapter 52, § i: 
 " Highways, townways, streets, cause- 
 ways, and bridges shall be kept in 
 repair at the expense of the town, 
 city, or place in which they are sit- 
 uated, when other provision is not 
 made therefor, so that the same may 
 be reasonably safe and convenient for 
 travelers, with their horses, teams, 
 and carriages at all seasons of the 
 year." .... 
 
 § 17 (p. 349) : " If the life of a per- 
 son is lost by reason of a defect or 
 want of repair of a highway, town- 
 way, causeway, or bridge, or for 
 want of suitable rails on such way or 
 bridge, the county, town, or person by 
 law obliged to repair the same, shall 
 be liable in damages not exceeding 
 one thousand dollars, to be assessed 
 with reference to the degree of culpa- 
 bility of the county, town, or person 
 liable, and recovered in an action of 
 tort commenced within one year from 
 the injury causing the death, by the 
 executor or administrator of the de- 
 ceased person, for the use of the 
 widow and children of the deceased 
 in equal moieties, or if there are no 
 children, to the use of the widow, or, 
 if no widow, to the use of the next of 
 kin ; provided, that the county, town. 
 
 or person had previous reasonable 
 notice of the defect or want of repair 
 of such way or bridge. 
 
 §18 : " If a person receives or suffers 
 bodily injury, or damage in his prop- 
 erty, through a defect or want of 
 repair or of sufficient railing in or 
 upon a highway, townway, causeway, 
 or bridge, which might have been 
 remedied, or which damage or in- 
 jury might have been prevented by 
 reasonable care and diligence on the 
 part of the county, town, place, or 
 persons by law obliged to repair the 
 same, he may recover, in the man- 
 ner hereinafter provided, of the said 
 county, town, place, or persons, the 
 amount of damage sustained thereby, 
 if such county, town, place, or persons 
 had reasonable notice of the defect, 
 or might have had notice thereof by 
 the exercise of proper care and dili- 
 gence on their part ; but no such 
 damage shall be recovered by a per- 
 son whose carriage and the load 
 thereon exceed the weight of six tons. 
 
 § 19: "A person so injured shall 
 within thirty days thereafter give to 
 the county, town, place, or persons 
 by law obliged to keep said highway, 
 townway, causeway, or bridge in re- 
 pair, notice of the time, place, and 
 cause of the said injury or damage ; 
 
240 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. S 128 
 
 causeways, and bridges " to be reasonably safe and con- 
 venient for travelers, and it makes municipalities liable 
 for damages occasioned by defects and want of repair 
 when they have had reasonable opportunity to remedy 
 these. 
 
 The amount recoverable is limited by the statute, and 
 no person can recover for an injury to his person or prop- 
 erty if his carriage and load exceeds the weight of six tons. 
 
 The statute also specifies the entire liability of mu- 
 nicipal corporations, and they are not liable for negligence 
 in respect to public commons or parks,* and are only liable 
 for defects in the highways to those who can be properly 
 included within the term travelers.* The courts have, 
 
 and if the said county, town, place, or 
 persons do not pay the amount there- 
 of, he may within two years after the 
 date of said injury or damage bring 
 an action of tort against said county, 
 town, place, or persons to recover the 
 same. But no notice given under the 
 provisions of this section shall be 
 deemed to be invalid or insufficient 
 solely by reason of any inaccuracy 
 in stating the time, place, or cause of 
 the injury ; provided, that it is shown 
 that there was no intention to mis- 
 lead, and that the party entitled to 
 notice was not in fact misled thereby " 
 (L. 1888, c. 114. See Bowes v. Bos- 
 ton, 29 N. E. Rep. 633). 
 
 § 20 : " No person shall recover from 
 a town, city, county, or place, in any 
 such action,a greater sum for damages 
 or injury than one-fifth of one per 
 cent, of the State valuation of such 
 town, city, county, or place last pre- 
 ceding the commencement of the ac- 
 tion, nor a greater sum than four 
 thousand dollars." The statute con- 
 tains other special provisions which 
 should be consulted. See also L. 1891, 
 c. 170. 
 
 ' Clark V. Waltham, 128 Mass. 567, 
 35 Am. Rep. 159 (1880); Steele v. 
 Boston, 128 Mass. 583, 35 Am. Rep. 
 781, note. 
 
 In Oliver v. Worcester, 102 Mass. 
 489, and Gould v. Boston, 120 Mass. 
 300, the court held the corporations 
 liable on the ground that they were 
 receiving an income from the use of 
 the property. See supra, § 38. 
 
 "^ In Bliss v. South Hadley, 145 
 Mass. 91, 5 N. E. Rep. 124, the 
 court held that a child twenty months 
 old sent out for air and exercise was 
 within the protection of the statute ; 
 but in GuUine v. Lowell, 144 Mass. 
 491, 4 N. E. Rep. 239, it held that a 
 boy playing on the street was not a 
 traveler. The closeness of this dis- 
 tinction illustrates the difficulty of ari- 
 ministering justice on lines marked 
 out by statutes. The court has also 
 held that as one cannot travel law- 
 fully on Sunday, except when he is 
 engaged in a work of necessity or 
 charity, if he is injured on Sunday 
 by reason of the defective condition 
 of a highway when not so engaged, he 
 cannot recover under the statute. 
 
§128 STATUTORY LIABILITY NEGLECTING HIGHWAYS. 24I 
 
 however, given broad construction to the words "de- 
 fect and want of repair" in the statute, and a defect 
 may consist of an obstruction, an excavation, an 
 overhanging dangerous object, if connected with the 
 use of the street, or a want of a railing beside the trav- 
 
 Connolly v. Boston, 117 Mass. 64. 
 Compare O'Connell v. Lewiston, 65 
 Me. 34; Cratty v. Bangor, 57 Me. 
 423 ; Johnson v. Strasburg, 47 Vt. 28. 
 
 See infra, Chap. XXII. 
 
 In Barker v. Worcester, 1 39 Mass. 
 74, 29 N. E. Rep. 474 (1885), it ap- 
 peared that the plaintiff walked from 
 his residence to that of a friend about 
 a mile distant, then drove in a car- 
 riage to a hotel, and afterward walked 
 home from the hotel, a distance of 
 about a mile and an eighth. His 
 object was partly to get exercise and 
 partly to make a friendly call, and no 
 business was discussed. He was in- 
 jured while returning home from the 
 hotel. And on this testimony the trial 
 judge ruled that the plaintiff was 
 traveling in violation of the Sunday 
 law when he was injured, and ordered 
 a verdict for the defendant. 
 
 In the opinion of the court, re- 
 versing this decision, W. Allen, J., 
 says : " The only question which we 
 need consider is whether the court 
 properly ruled that the plaintiff was 
 ' traveling ' within the meaning of 
 Pub. St., c. 98, §3, which provides 
 that ' whoever travels on the Lord's 
 day, except from necessity or charity, 
 shall be punished by fine not exceed- 
 ing ten dollars for each offense.' It 
 was held in Hamilton v. Boston, 14 
 Allen 475, upon full consideration, 
 that walking half a mile in streets of 
 Boston for air and exercise was not 
 traveling, within the meaning of the 
 statute. We cannot distinguish the 
 case at bar fi-om that case. The dif- 
 ference in distance passed over does 
 16 
 
 not distinguish the cases. If a walk 
 of half a mile does not make a person 
 a traveler, it cannot be held, as mat- 
 ter of law, that he becomes one by 
 extending his walk to a mile and an 
 eighth. The fact that the plaintiff 
 rode part of the way on his return is 
 immaterial, even if riding is more 
 traveling or more unlawful than walk- 
 ing. He started from his home to 
 walk. He was walking when he was 
 injured ; and the fact that he rode 
 part of the way on his return, even if 
 this were unlawful, could not affect 
 the character in which he was using 
 the highway at the time he was in- 
 jured. Davidson v. Portland, 69 Me. 
 116. The only other ground for dis- 
 tingfuishing the cases is that in Ham- 
 ilton V. Boston, the purpose of the 
 plaintiff in walking was merely for 
 recreation ; in this case there was also 
 the purpose of making a social call. 
 Neither act is prohibited by law, if 
 that is material. It is not unlawful 
 under the statute, or as against pub- 
 lic policy, to pay friendly visits or to 
 indulge in the recreation of walking 
 on the Lord's day. It is unlawful to 
 travel for the purpose of doing either ; 
 but it is not the purpose, but the fact 
 of traveling for the purpose, that ren- 
 ders the act unlawful. Upon no prin- 
 ciple can the same walk be held to be 
 traveling, if for the purpose of making 
 a friendly call, and not traveling if for 
 the purpose of air and exercise. A 
 construction of the statute cannot be 
 tenable which will hold a person to be 
 an innocent passer-by if walking for 
 recreation, but an unlawful traveler if 
 
242 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 128 
 
 eled way,^ and the decisions in other States have been 
 much influenced by the opinions of the Supreme Court 
 of Massachusetts upon the question of what is necessary 
 to make a highway reasonably safe and convenient for 
 use. But although, upon many questions of a general 
 character, aid is received from these authorities, the pro- 
 tection afforded by the common-law rule is materially 
 greater in several particulars than that afforded by the 
 Massachusetts statute, as, for example, with regard to 
 falling objects,^ objects frightening horses,^ and other 
 defects not of a structural character.* 
 
 It is also held in Massachusetts^ that a defect in the 
 
 walking to call upon his neighbor, and 
 which will impose the character of a 
 traveler violating the law upon any 
 person who on a Sunday evening 
 seeks social intercourse outside of his 
 own household. In O'Connell v. Lew- 
 iston, 63 Me. 34, the case of Hamil- 
 ton V. Boston was followed, and a 
 person was held not to be a traveler 
 who took a walk of a mile and re- 
 turned, calling on the way at a house 
 for a companion ; and this was af- 
 firmed in Davidson v. Portland, ubi 
 supra. In the opinion of a majority 
 of the court the entry must be, ex- 
 ceptions sustained." 
 
 See further as to who is a traveler 
 under the Massachusetts statute : 
 Steele v. Burkhardt, 104 Mass. 59 ; 
 Harwood v. Oakham, 152 Mass. 421 ; 
 Smethurst v. Proprietors Ind. Cong. 
 Ch., 148 Mass. 261, 2 L. R. A. 695. 
 
 ' See supra, §§ 83, 96 ; Powers v. 
 Boston, 27 N. E. Rep. 995. 
 
 ' Supra, §97. 
 
 ' Supra, § 84 ; infra. Chap. XXI. 
 
 * The necessity of a physical defect 
 in or near the way to bring a case 
 within the statute, is strikingly shown 
 by contrasting the case of Bless- 
 ington V. Boston, 1 53 Mass. 409, 26 
 
 N. E. Rep. 1 1 13 (1891), with But- 
 terfield v. Boston, 148 Mass. 544 
 (1888). In both cases the negligence 
 was that of a servant who was guard- 
 ing a dangerous opening in the way, 
 but who momentarily neglected his 
 duty. In the former case, however, 
 this opening was a trench across a 
 street, which the employee of a street 
 railway company was guarding with 
 a barrier, and in the latter was a 
 river which was crossed by a draw- 
 bridge in charge of an employee of the 
 city. And it was held in the one that 
 there was a defect in the way and lia- 
 bility, and in the other that as there was 
 nothing wrong with the draw-bridge, 
 there was no defect and no liability, 
 ' In Horrigan v. Clarksburg, 150 
 Mass. 218 (1889), Field, J., says: 
 " This is an action against the in- 
 habitants of a town, under the Pub. 
 Sts., c. 52, § 18, which provide that, 
 ' If a person receives or suffers bodily 
 injury .... through a defect .... in 
 or upon a highway, .... he may re- 
 cover .... the amount of damage 
 sustained thereby,' etc. In actions 
 under this provision ot the statute, 
 the injury must .have been received 
 solely in consequence of the defect in 
 
§ 128 STATUTORY LIABILITY NEGLECTING HIGHWAYS. 243 
 
 way must be the sole cause of the injuries under the 
 statute, while at common law it is sufficient if it is the 
 proximate cause.* 
 
 Formerly, towns were liable if a defect existed twenty- 
 four hours,® but now reasonable care in discovering and 
 preventing defects is all that is necessary.' 
 
 Notice of injury must be given as the statute pro- 
 vides.^ 
 
 the highway. If between the cause 
 and the effect the negligence of the 
 plaintiff intervenes, so that the injury 
 received is the direct consequence of 
 this negligence as well as of the de- 
 fect in the way, and if it is impossible 
 to determine what portion of the in- 
 jury is caused by either, or that any 
 substantial injury would have been 
 received but for the negligence of 
 the plaintiff, we think that the action 
 cannot be maintained. It does not 
 appear from the exceptions that the 
 present is not such a case." 
 
 ' Infra, Chap. XXI. 
 
 ' See Post V. Boston, 141 Mass. 189 
 <i886). 
 
 ' Hayes v. Cambridge, 136 Mass. 
 402 ; Rooney v. Randolph, 128 Mass. 
 580. 
 
 In Blessington v. Boston, 153 
 Mass. 409 (1891), Morton, J., said: 
 ■"The Pub. Sts., c. 52, § 18, do not 
 change the rule of law as to what 
 constitutes reasonable care and dili- 
 gence ; but only provide that, in case 
 •of injury from a defect in a way, a 
 ■city or town shall not be liable unless 
 the defect could have been remedied 
 by the exercise of reasonable care and 
 ■diligence on the part of the city or 
 town. Gorham v. Gross, 125 Mass. 
 232; Rooney v. Randolph, 128 Mass. 
 580. It was the duty of the city 
 under that statute to use reasonable 
 •care and diligence to see that its 
 highways and streets were safe for 
 
 travelers thereon. The fact that the 
 accident to the plaintiff was due to 
 the momentary failure of the servants 
 of the railroad company to replace 
 the barriers would not relieve the de- 
 fendant from liability. The defendant 
 saw fit to intrust to the servants of 
 the railroad company the duty of 
 keeping the trench properly guarded, 
 and it is responsible for their neglect, 
 whether momentary or otherwise." 
 
 * Some of the recent cases, in re- 
 gard to the requirements of this 
 notice, are as follows : Bowes v. Bos- 
 ton, 29 N. E. Rep. 633 (1891) ; Spoon- 
 er V. Freetown, 29 N. E. Rep. 662 ; 
 May V. Boston, 150 Mass. 517, 23 N. 
 E. Rep. 220 (1889); Pendergast v. 
 Clinton, 147 Mass. 402 ; Olsen v. 
 Worcester, 142 Mass. 536 ; Bliss v. 
 South Hadley, 145 Mass. 91; Canter- 
 bury v. Boston, 141 Mass. 215, I N. 
 E. Rep. 584 (1886) ; Flanders v. Nor- 
 wood, 141 Mass. 17 ; Grogan v. Wor- 
 cester, 140 Mass. 227 ; Hanscom v. 
 Boston, 141 Mass. 242 ; Lyon v. Cam- 
 bridge, 136 Mass. 419 (1884) ; Shal- 
 low V. Salem, Id. 136; Dalton v. 
 Salem, Id. 278; Cronin v. Boston, 
 135 Mass. no; McCabe v. Cam- 
 bridge, 134 Mass. 484 (1883); Don- 
 nelly V. Fall River, 132 Mass. 299 
 (1882); Savory v. Haverhill, Id. 324; 
 McDougall V. Boston, 134 Mass. 149 
 (1883) ; Guy V. Cambridge, 128 Mass. 
 387 ; Sullivan v. Boston, 126 Mass. 
 540. 
 
244 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 1 29 
 
 § 129. The Maine Statute.— The Maine statute Mmpos- 
 ing liability for damages occasioned by defective ways 
 differs in material particulars from the Massachusetts 
 statute. More cannot be done here than to call attention 
 to a few of the points of difference, and to quote in the 
 note some of the important provisions of the statute. 
 The liability is confined to travelers, and is limited to two 
 thousand dollars in case of an injury to person or prop- 
 erty occasioned by the neglect of a town, but in case of 
 
 ' Revised Statutes of Maine (1883, 
 p. 256), chap. 18, § 80 : '■ Whoever re- 
 ceives any bodily injury, or suffers 
 damage in his property through any 
 defect or want of repair or sufficient 
 railing, in any highway, townway, 
 causeway, or bridge, may recover for 
 the same in a special action on the 
 case, to be commenced within one 
 year from the date of receiving such 
 injury or suffering damage, of the 
 county or town obliged by law to re- 
 pair the same, if the commissioners of 
 such county, or the municipal officers, 
 highway surveyors, or road commis- 
 sioners of such town had twenty-four 
 hours' actual notice of the defect or 
 want of repair; but not exceeding 
 two thousand dollars in case of a town; 
 and if the sufferer had notice of the 
 condition of such way previous to the 
 time of the injury, he cannot recover 
 of a town unless he has previously noti- 
 fied one of the municipal officers of the 
 defective condition of such way ; and 
 any person who sustains injury or dam- 
 age, as aforesaid, shall, within four- 
 teen days thereafter, notify one of the 
 county commissioners of such county, 
 or one of the municipal officers of such 
 town, by letter or otherwise, in writing, 
 setting fortti his claim for damages 
 and specifying the nature of his inju- 
 i-jes and the nature and location of the 
 defect which caused such injury. 
 
 " If the Ufe of any person is lost 
 through such deficiency, his execu- 
 tors or administrators may recover of 
 such county or town liable to keep 
 the same in repair, in an action on the 
 case, brought for the benefit of the 
 estate of the deceased, such sum as 
 the jury may deem reasonable as dam- 
 ages, if the parties liable had said no- 
 tice of the deficiency which caused the 
 loss of life ; at the trial of any such 
 action the court may, on motion of 
 either party, order a view of the prem- 
 ises where the defect or want of re- 
 pair is alleged when it would materi- 
 ally aid in a clear understanding of 
 the case. 
 
 " § 81. When on trial of any such ac- 
 tion or indictment, it appears that the 
 defendant has, within six years before 
 the injury, made repairs on the way 
 or bridge, he shall not deny its loca- 
 tion. 
 
 " § 82. No town is liable for such an 
 injury when the weight of the load, 
 exclusive of the carriage, exceeds six 
 tons. Proof of its weight must be 
 made by the plaintiff. 
 
 " § 83. No town is liable to an action 
 for damages to any person on foot, on 
 account of snow or ice, on any side- 
 walk or crosswalk, nor on account of 
 the slippery condition of any sidewalk 
 or crosswalk." 
 
§ 129 STATUTORY LIABILITY NEGLECTING HIGHWAYS'. 245 
 
 an injury resulting in death, " such sum as the jury may 
 deem reasonable as damages may be recovered." A town 
 is not liable where the load, exclusive of the carriage, ex- 
 ceeds six tons, and no town is liable to a person on foot 
 for injuries occasioned by snow or ice. Important and 
 unusual provisions in regard to notice are also found in 
 the statute, for the authorities must, in every case, have 
 twenty-four hours' actual notice of the defect, and no 
 person who receives an injury can recover if he has had 
 knowledge of the defect previous to the time of the in- 
 jury and has not notified one of the municipal officers. 
 The statute also contains provisions requiring the notice 
 of injury to be given.^ Liability under the statute will 
 not be extended by construction,^ and the remedy is con- 
 fined to travelers.* 
 
 > See Clark v. Tremont, 83 Me. 426, 
 22 Atl. Rep. 378 (1891); Greenleaf V. 
 Norridgewock, 82 Me. 62 (1890); 
 White V. Vassalborough, 82 Me. 67 ; 
 Low V. Windham, 75 Me. 1 13 ; Wad- 
 leigh V. Mt. Vernon, 75 Me. 79 (1883); 
 Wagner V.Camden, 73 Me. 485 (1882); 
 Welch V. Portland, 77 Me. 384 ; Rog- 
 ers V. Shirley, 74 Me. 144. 
 
 " Brown v. Skowhegan, 82 Me. 273, 
 19 Atl. Rep. 399 (1890), Emery, J., 
 says : " The statute, being somewhat 
 of a penal nature, is not to be extended 
 by construction. It has always been 
 construed strictly. The court assumes 
 that the legislature has expressed in 
 terms all the duties it meant to im- 
 pose. It has been held that the town 
 need not open and keep in repair the 
 entire width of the way, — that it suffi- 
 ciently complies with the statute, if it 
 constructs and keeps in repair a 
 smooth, free roadway of sufficient 
 width for teams to pass along, and by 
 
 one another without obstruction, — 
 and that it is not liable to a traveler 
 injured by his wagon striking a rock 
 within the limits of the highway, 
 but outside of the part purposely fit- 
 ted for travel. Perkins v. Fayette, 68 
 Me. 152. 
 
 " We think it would be an un- 
 warrantable extension of the statute, 
 t3 hold that towns must provide 
 safe ingress and egress to and from 
 the roads they make. The statute 
 does not say they must, and we see no 
 reason why they should. Owners or 
 occupants of buildings and lots can- 
 not well keep the public streets in re- 
 pair, but each abutter can take care 
 of his own approaches, and it is rea- 
 sonable that he alone should be re- 
 sponsible for them. His right to con- 
 nect his premises with the traveled 
 part of the public road, by means of 
 suitable roads and crossings, will not 
 be questioned, and it may reasonably 
 
 • In McCarthy v. Portland, 67 Me. able the plaintiff to recover, he must 
 167 (1878), Peters, J., says: "To en- have been ' a traveler." Thatisnotall. 
 
246 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 1 30 
 
 § 130. New Hampshire.— In New Hampshire the statute 
 imposes liability upon towns, but this is of a less restricted 
 
 be left to him to determine the loca- 
 tion and character of such approaches, 
 if any. It was held in Philbricli v. 
 Pittston, 63 Maine 477, in a well- 
 considered opinion, that a person in- 
 jured by a hole in a plank crossing 
 over a gutter within the limits of the 
 highway, while passing from a private 
 way into the public way, could not re- 
 cover of the town for injuries thus re- 
 ceived. The plaintiff in that case was 
 within thehmits of the street, and was 
 crossing the ditch on his way to the 
 part prepared for travelers, but had 
 not reached it. It was declared in the 
 opinion, that it is no part of the duty 
 of towns to provide safe and conveni- 
 ent access to their streets from any 
 man's house, lot, or garden. See also 
 Leslie v. Lewiston, 62 Maine 468. 
 
 . , . . " The duty of the town is only 
 to travelers upon its roads, not to 
 those approaching or leaving its roads. 
 The plaintiff must prove, as indeed he 
 
 has alleged, that he was traveling 
 upon the road. Stinson v. Gardiner, 
 42 Me. 248 ; McCarthy v. Portland, 
 67 Me. 167. As was said in Phil- 
 brick V. Pittston, supra : ' He (at the 
 time of the accident) had not reach- 
 ed that part of the street which was 
 appropriated to public travel or pre- 
 pared by the town for that purpose." 
 Hence, he was not, when hurt, a 
 traveler, and so cannot recover." 
 
 See further, upon the statute: Morse 
 V. Belfast, 77 Me. 44 (1885) ; Willey 
 v. Ellsworth, 64 Me. 57 (1874); Blake 
 v. Newfield, 68 Me. 365 ; Bartlett v. 
 Kittery, Id. 358 ; Butler v. Bangor, 67 
 Me. 388 (1877); Haskell v. New Glou- 
 cester, 70 Me. 305 (1879); Morgan v. 
 Hallowell, 57 Me. 375 ; Davis v. Ban- 
 gor, 42 Me. 522 (1856) ; Merrill v. 
 Hanipden, 26 Me. 234 (1846); San- 
 ford v. Augusta, 32 Me. 536 (1851); 
 Reed v. Belfast, 20 Me. 246 (1841). 
 
 He must have been traveling for some 
 purpose or other for which streets are 
 required to be constructed and kept 
 in repair. A person may be a traveler, 
 but not such within the contempla- 
 tion of the statute, which gives com- 
 pensation for an injury occasioned by 
 a defect in a highway. He may be 
 within or without the protection of 
 the statute, and still be a traveler. 
 The distinction between what is a 
 legitimate use of the streets or the 
 contrary, is a nice and narrow one, 
 and still it is an appreciable and palpa- 
 ble distinction. A boy may be within 
 the protection of the statute while 
 running upon a street, if going to or 
 returning from school ; but not, if 
 participating at the time in a game of 
 
 ball being carried on in the highway. 
 He might be a traveler, perhaps, 
 under some circumstances, while slid- 
 ing down-hill on his way to school ; 
 but not, if merely engaged in sliding 
 down-hill as a pastime and sport. 
 The statute requires that the way 
 shall be 'safe and convenient for 
 travelers with horses, teams, and car- 
 riages.' A horse being driven or led 
 upon the street may be in the sense of 
 the statute the horse of a traveler; 
 but if an estray upon the common or 
 highway, he would not be. The in- 
 struction in the case at bar prevents 
 the plaintiff recovering, because he 
 was using the highway at the time of 
 the accident for the purpose of racing. 
 Not because racing horses is an un- 
 
§ 130 STATUTORY LIABILITY NEGLECTING HIGHWAYS. 247 
 
 character.^ Indeed, it was there asserted at one time that 
 the common-law liability was the occasion for the stat- 
 
 lawful thing, but because it was a 
 purpose for which the streets were 
 not designed to be used. Playing ball 
 and sliding down-hill are not unlaw- 
 ful exercises and games. But the 
 streets are not proper places for such 
 recreation, nor are they appropriate 
 as racing grounds for fast driving. 
 Of course while a person is racing his 
 horse, he is passing along the high- 
 way, in one sense, as any traveler 
 would. So is the boy passing along 
 the street while running after the ball, 
 or sliding down-hill, or the horse while 
 going astray. If the plaintiff had been 
 on his way to his business house or 
 home, or had been out riding for 
 pleasure and recreation, and while so 
 going speeded his horse to keep up 
 with or to pass other teams on the 
 road, he might still have been a 
 traveler within the protection of the 
 statute in case of accident from a de- 
 fective way. See Blodgett v. Boston, 
 8 Allen 237, 241. In such case the 
 racing might have been merely an in- 
 cidental or casual thing. But where 
 a person uses a highway wholly for 
 the purpose of horse-racing, and in 
 the same manner he would have used 
 it if a race-course fitted and designed 
 for the purpose, and meets with dis- 
 aster, he cannot recover of a town 
 merely because the town has not 
 afforded him and his horse a safer 
 and more perfect track." 
 
 ' Public Statutes of New Hampshire 
 (1891, p. 224), chap. 76 : 
 
 " § I. Towns are liable for damages 
 happening to any person, his team, or 
 carriage, traveling upon a highway or 
 bridge thereon, by reason of any ob- 
 struction, defect, insufficiency, orwant 
 of repair, which renders it unsuitable 
 for the travel thereon. 
 
 " § 2. They are liable for damages 
 happening from the snow incumber- 
 ing the same, as from any other de- 
 fect. 
 
 " § 3. Towns and other corpora- 
 tions are not liable for such damages 
 to a person traveling with a loaded 
 carriage, when the load, exclusive of 
 the carriage, exceeds five tons. 
 
 " § 4. They are not liable for such 
 damage when the weight of the load, 
 exclusive of the carriage, exceeds 
 three tons, unless the width of the 
 felloes of the wheels, if a two-wheeled 
 carriage, is at least five inches, and if 
 a four-wheeled carriage, three and 
 one-half inches. 
 
 " § 5. They are not liable for such 
 damage happening to droves of cattle 
 by reason of the deficiency of a bridge, 
 if, when it happens, the number of 
 cattle on the bridge exceeds twenty- 
 five. 
 
 " § 6. Upon the trial of any action 
 for the recoveiy of such damage, it is 
 incumbent on the plaintiff to prove 
 the weight of the load and width of 
 the felloes, and the number of cattle 
 on the bridge. 
 
 "§ 7. Every person sustaining 
 damage to his person, team, or car- 
 riage while traveling upon any high- 
 way or bridge thereon by reason of 
 any obstruction, defect, insufficiency, 
 or want of repair, rendering it un- 
 suitable for travel thereon, shall with- 
 in ten days from the date of receiving 
 such damage, file with the selectmen 
 of the town and the clerk of the town 
 or city which by law may be liable 
 for the same, a written statement, 
 under oath, of the exact place where 
 and the time when such damage was 
 received, a full description of the in- 
 juries, the extent of the same, and the 
 
248 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 1 30 
 
 ute,^ and in fact the statute is broad and more in accord 
 with common-law principles than any other State statute. 
 Towns are liable for any obstruction, defect, insufficiency, 
 or want of repair in a bridge or highway which renders 
 
 amount of damages claimed therefor " 
 (Amended Laws, 1885, ch. 65). 
 
 § 8 provides for an investigation to 
 be made by the town or city liable with- 
 in thirty days, and § 9 allows persons 
 unavoidably prevented from making 
 their claim within ten days, to apply 
 to the Supreme Court for relief with- 
 in six months from the date of the 
 injuries, and § 10 gives a town a 
 remedy over against the surveyor of 
 highways through whose fault the in- 
 jury has happened. And L. 1883, ch. 
 49, provide in what way towns shall 
 contribute for damages caused by a 
 defect. 
 
 Chap. 74, § I (Public Statutes, 1891, 
 p. 222), is as follows : " Highways 
 not in any town or place liable for the 
 repair of highways shall be made and 
 repaired by the county ; and every 
 county shall be liable, as towns, to 
 individuals and to the public for 
 neglect therein." 
 
 ' In Wheeler v. Troy, 20 N. H. 78 
 (1849), Gilchrist, C. J., said: "The 
 duty of towns in this State, to build 
 and keep in repair roads within their 
 limits, has long been established. 
 The most ancient provincial statutes 
 on the subject seem rather to recog- 
 nize than to create that duty. The 
 statute of 5 Geo. L, ch. 98, § 6, Prov. 
 Laws 15 s, adverts to the presentment 
 at the sessions of the peace as a 
 known remedy against towns that 
 have suffered defects to exist in their 
 highways. That statute gives to 
 parties injured, and to the representa- 
 tive of such as lose their lives through 
 such defects, certain remedies there 
 described. An earlier statute, that 
 
 of the 4th of the same reign, Prgv. 
 Laws 63, and which is the earliest 
 contained in that volume on the sub- 
 ject, has for its object to provide that 
 the towns shall annually repair such 
 highways, and that the selectmen 
 shall assess rates for that purpose. 
 
 " The statute of February 27, 1786, 
 repealing all laws before enacted on 
 the subject of highways, gives the 
 remedy to individuals injured through 
 defects in highways in nearly the 
 same phrase with the Revised Stat- 
 utes, ch. 57. 
 
 "The statute of June 17, 1807, 
 prescribes the manner in which fines 
 shall be appropriated that may be 
 imposed upon towns for neglecting to 
 repair their highways, but no statute 
 earlier than the Revised Statutes, ch. 
 53, expressly authorizing indictment 
 or information, or any other public 
 proceeding against towns for such 
 neglect. 
 
 " These facts are adverted to as 
 having a tendency to show that, by 
 immemorial custom, and independ- 
 ently of any statute that has been pre- 
 served, the towns in this State have 
 been held liable to keep in repair the 
 highways within their limits, and that 
 for neglect of that duty common-law 
 remedies, both of a public and a pri- 
 vate character, have existed, and those 
 of a public character at least put in 
 force from a very early period. 
 
 " It was said, indeed, in Famum v. 
 Concord, 2 N. H. 293, that no action 
 lies at common law against towns for 
 damages sustained through defects 
 in highways. But that was said upon 
 the authority of the cases there cited. 
 
§ 131 STATUTORY LIABILITY NEGLECTING HIGHWAYS. 249 
 
 it unsuitable for travel, and snow 'ncumbering the way 
 is specifically named as a defect. Restrictions exist 
 governing the weight of a load, the width of the felloes 
 of a wagon, and the number of cattle to be driven on a 
 bridge at one time, and provisions regulating the notice 
 of the injury to be given are also found in the statute.^ 
 But apart from these requirements, the liability is 
 similar to that existing at common law,' and although 
 the statute exists for the benefit of travelers only, no 
 narrow or technical meaning is given to this term.^ 
 
 § 131. Vermont. — Although liability for defects in high- 
 ways was imposed by the statutes of Vermont prior to 
 1882, in that year the legislature enacted a law,* which 
 
 That of Mower v. Leicester, 9 Mass. 
 247, was decided upon statutes of that 
 commonwealth materially differing 
 from those of this State ; and Russell 
 V. The Men of Devon, 2 D. & E. 667, 
 proceeded upon the ground that no 
 action lies against a town unless given 
 by a statute. 
 
 " We are inclined, therefore, to the 
 opinion that the general maxim of the 
 common law, that he who is specially 
 damaged by the breach of a duty on 
 the part of another shall have his 
 remedy by action, is properly ap- 
 plicable to the case of one who has 
 received an injury through the neglect 
 of a town to repair its roads. The 
 case of Whipple v. Walpole, 10 N. H. 
 130, in deciding that exemplary dam- 
 ages might be given where there was 
 gross neglect in such cases, proceeded 
 upon this ground and is an authority 
 in point." V 
 
 ' See Harvey v. Northwood,6s N. H. 
 117, 19 Atl. Rep. 653 (1890); Leonard 
 V. Bath, 61 N. H. 67; Jewett v. 
 Keene, 62 N. H. 701 ; Clark v. Man- 
 chester, Id. 577 ; Home v. Rochester, 
 
 Id. 347 ; Sherry v. Rochester, Id. 346 ; 
 Carr v. Ashland, Id. 665. 
 
 ° See Farnum v. Concord, 2 N. H. 
 392 (1821), action under statute of 
 Feb. 27, 1786; Knowlton v. Pitlsfield, 
 II N. H. 535; Johnson v. Haverhill, 
 35 N. H. 74 (1857); Hubbard v. Con- 
 cord, 35 N. H. 52 ; Hall v. Man- 
 chester, 40 N. H. 410 (i860); Howe 
 v. Plainfield, 41 N. H. 135 (i860); 
 Winship v. Enfield, 42 N. H. 197 
 (i860); Ray V. Manchester, 46 N. H. 
 59 (1855); Darling v. Westmoreland, 
 52 N. H. 401, 13 Am. Rep. 55; 
 Hardy v. Keene, 52 N. H. 370 (1872); 
 Sweeney v. Newport, 65 N. H. 86, 18 
 Atl. Rep. 86 (1888). 
 
 3 Hardy v. Keene, 52 N. H. 370 
 (1872). 
 
 * Revised Laws of Vermont (1880, 
 p. 598), sec. 31 1 1, as amended. Laws 
 of 1882, No. 13, p. 30 : " § I. This act 
 shall not release towns from liability 
 for damages arising from the insuffi- 
 ciency of any bridge, culvert, or sluice. 
 If special damage happens to a per- 
 son, his team, carriage, or other prop- 
 erty, by means of the insufficiency or 
 
250 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § 1 32 
 
 continued the liability only for " insufficiency or want of 
 repairs of any bridge, culvert, or sluice which the town is 
 liable to keep in repair." * As the courts hold that there 
 is no common-law liability in Vermont,^ no action for 
 special damage can there be brought against a municipal 
 corporation for negligence in respect to its highways, 
 except under this statute referring to bridges, unless it 
 is also negligent in reference to its property in the high- 
 ways.^ No. person can recover under the statute if his 
 load exceeds ten thousand pounds, or without complying 
 with the provisions regarding the notice of injury.* 
 
 § 132. Connecticut. — The Connecticut statute® provides 
 
 want of repairs of any bridge, culvert, 
 or sluice which the town is liable to 
 keep in repair, the person sustaining 
 the damage may recover the same in 
 an action on the case ; and if the dam- 
 ages accrue in consequence of the 
 insufficiency or want of repairs of a 
 bridge erected and maintained by two 
 or more towns, the action shall be 
 brought against all the towns liable 
 for the repairs of the same, and the 
 damages and costs shall be paid by 
 the towns in the proportion in which 
 they are liable for the repairs; and 
 the court may in its discretion issue 
 execution against each town for its 
 proportion only. But no person shall 
 recover against a town or other cor- 
 poration for such damage, sustained 
 in consequence of the passing on any 
 bridge, culvert, or sluice of a carriage 
 bearing a load exceeding ten thousand 
 pounds in weight" (then follows a 
 statement of the notice to be given 
 by the person injured). 
 
 ' Ford V. Braintree, 23 Atl. Rep. 
 633 (1891); Willard v. Sherburne, 8 
 Atl. Rep. 735 (1887). Consult Mullen 
 V. Rutland, 55 Vt. ^^ (1883); Parker 
 V. Rutland, 56 Vt. 224 (1883); Morse 
 
 V. Richmond, 41 Vt. 435 (1868); Drew 
 V. Sutton, SS Vt. 586 (1882); Huntv. 
 Pownal, 9 Vt. 411 (1837). 
 
 •^ Supra, § 54. 
 
 'Wilkins v. Rutland, 6i Vt. 336; 
 supra, p. •](), n. 2. 
 
 * Farnsworth v. Mt. Holly, 22 Atl. 
 Rep. 459 (1891); Melendy v. Brad- 
 ford, 56 Vt. 148 (1883); Knox v. 
 Wheelock, Id. 191 ; Harris v. Town- 
 shend. Id. 716; Bliss v. Whitingham, 
 54 Vt. 172(1881); Giddings V.Ira, Id. 
 346; White V. Stowe, Id. 510; Bart- 
 lett V. Cabot, Id. 242 ; Campbell v. 
 Fairhaven, Id. 336 (1882); Pratt v. 
 Sherburne, 53 Vt. 370; Butts v. Stowe, 
 Id. 600 ; Brown v. Fairhaven, 47 Vt. 
 386 (1875); Kent V. Lincoln, 32 Vt. 
 591 ; Powers v. Woodstock, 38 Vt, 44. 
 
 ' General Statutes of Connecticut 
 (1888, sec. 267, p. 585): " Any person 
 injured in person or property by means 
 of a defective rOad or bridge may re- 
 cover damages from the party bound 
 to keep it in repair ; but no action for 
 any such injury shall be maintained 
 against any town, city, corporation, 
 or borough, imless written notice of 
 such injury, and the nature and cause 
 thereof, and of the time and place of 
 
§ 132 STATUTORY LIABILITY NEGLECTING HIGHWAYS. 25 1 
 
 for the recovery of damages by any person injured in 
 person or property by means of "a defective road or 
 bridge." This brief description of the cause which gives 
 rise to the liability has limited the Connecticut courts to 
 a consideration of when a road or bridge is defective, and 
 has led them to hold that an object overhead in a street, 
 though it may render the way hazardous, does not make 
 it a "defective" road under the statute, and that for an 
 injury occasioned by such an object no action can be 
 brought.* The statute is also for the benefit of trav- 
 
 its occurrence, shall within sixty days 
 thereafter, or if such defect consists 
 of snow or ice, or both, within fifteen 
 days thereafter, be given to a select- 
 man of such town or to the clerk of 
 such city, corporation, or borough ; 
 and when the injury is caused by a 
 structure legally placed on such road 
 by a railroad company, it, and not the 
 party bound to keep the road in repair, 
 shall be liable therefor." 
 
 ' In Hewison v. City of New Haven, 
 34 Conn. 136 (1867), the court said; 
 
 " The decision of this case must 
 obviously depend upon the construc- 
 tion to be given to the statute upon 
 which it is brought, 
 
 . . . , " The plaintiff claims that it 
 was the duty of the city to keep the 
 highway free from nuisances, either 
 upon or over it, which would render 
 it unsafe or inconvenient for public 
 travel. The defendant claims that a 
 road can only be rendered defective 
 by something in or upon the roadbed 
 itself. We think the plaintiff's claim 
 is too broad. We are not prepared 
 to establish the doctrine that every- 
 thing which renders the highway un- 
 safe makes it defective within the 
 meaning of this act. Such a con- 
 struction would impose heavy and un- 
 necessary burdens upon towns. It 
 
 would in effect make them insurers, 
 for the time being, of the safety of 
 travelers upon the highway; a liability 
 to which the legislature never intend- 
 ed to subject them. If they had so 
 intended, it must be presumed that 
 they would have expressed such inten- 
 tion in clear and unmistakable lan- 
 guage. They have not only failed to 
 do this, but the language used, taken 
 in connection with other parts of the 
 statute, shows that such was not their 
 intention. 
 
 " It seems to have been a matter 
 of doubt whether a bridge, or a part 
 of the highway raised above the ad- 
 joining ground, although dangerous, 
 was defective, and hence a railing was 
 expressly required at such places for 
 the purpose of protecting the ' safety 
 of travelers' 
 
 " Here, then, was one danger spe- 
 cially provided for. The . legislature 
 must have been aware that other 
 dangers existed, or might exist, and 
 yet they made no provision for them. 
 What is the inference ? Not only that 
 they did not suppose that the lan- 
 guage used was broad enough to em- 
 brace every possible danger, but also 
 that they did not intend to make 
 towns liable in cases not expressly 
 provided for. We ought not there- 
 
252 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 133 
 
 elers only, and contains provisions governing the notice 
 of injury.^ 
 
 § 133. New Jersey.— In New Jersey a general statute 
 gives a right of action against townships for damages re- 
 ceived through the insufficiency or want of repairs of any 
 public road situated within their limits, but the statute 
 does not apply to all counties,* and by special acts its ap- 
 
 fore to extend this statute by con- 
 struction. Chidsey v. Canton, 17 
 Conn. 475. 
 
 " On the other hand, we think the 
 construction contended for by the de- 
 fendant is too limited. To construe 
 the word 'defective,' as applying to 
 the roadbed only, would partially de- 
 feat the purpose which the legislature 
 had in view; for it is obvious that 
 there may be objects off the roadbed, 
 yet so near it, either on one side or 
 over it, as seriously to impede the 
 public travel. That it was intended 
 to make it the duty of towns to keep 
 the highway clear of such obstructions 
 seems hardly to admit of a doubt." 
 
 See further upon the statute: Davis 
 V. Guilford, 55 Conn. 351 (1887); Wil- 
 son v. Granby, 47 Conn. 59 (1879); 
 Beardsley v. Hartford, 50 Conn. 529 
 (1883); Young V. New Haven, 39 
 Conn. 435 (1872); Ward v. North 
 Haven, 43 Conn. 148 ; Dooley v. Meri- 
 den,44Conn. 117(1876); Cloughessy 
 V. Waterbury, 51 Conn. 405 (1883); 
 Manchester v. Hartford, 30 Conn. 
 118(1861); Ayerv. Norwich, 39 Conn. 
 376 (1872); Calkins v. Hartford, 33 
 Conn. 57 (1865); Boucher v. New 
 Haven, 40 Conn. 456 (1873); Chid- 
 sey V. Canton, 17 Conn. 475 (1846); 
 Lee V. Barkhampton, 46 Conn. 213; 
 Burritt v. New Haven, 42 Conn. 
 174. 
 
 ' Lilly V. Woodstock, 59 Conn. 219, 
 22 Atl. Rep. 40 (1890); Manning v. 
 
 Woodstock, 59 Conn. 224, 22 Atl. 
 Rep. 42 ; Beisiegel v. Seymour, 58 
 Conn. 43, 19 Atl. Rep. 372 (1890). 
 
 ^ N. J. Revision, p. 1017 (L. 1859, 
 p. 526) : 
 
 " § 20. That if any damage shall 
 happen to any person or persons, his, 
 her, or their team, carriage, or other 
 property, by means of the insufficiency 
 or want of repairs of any public road 
 in any of the townships of this State, 
 the person or persons sustaining such 
 damage shall have the right to re- 
 cover the same, with costs, in an 
 action on the case in any court of 
 competent jurisdiction in this State, to 
 be instituted by the said person or 
 persons, his, her, or their executors or 
 administrators against such township 
 by its corporate name, and any judg- 
 ment in such action shall be collect- 
 ible in the manner and from the same 
 property as is now by law provided 
 for the collection of judgments against 
 the several townships of this State. 
 
 " § 21. That if any damage shall 
 happen to any person or persons, his, 
 her, or their team, carriage, or other 
 property, by means of the insufficiency 
 or want of repair of any bridge upon 
 any public road in any township of 
 this State, which such township or 
 the county in which the same shall be 
 situate is or shall be liable to make or 
 repair, the person or persons so sus- 
 taining such damage shall have the 
 right to recover the same, with costs, 
 
§133 STATUTORY LIABILITY NEGLECTING HIGHWAYS. 253 
 
 plication is further restricted.* And the same statute 
 gives a right of action against the board of chosen free- 
 holders of each county " for insufficiency or want of re- 
 pair of any bridge upon any public road." This statute 
 applies only to injuries suffered from neglect to make 
 the repairs required by the road law, and as this law im- 
 poses no duty in respect to sidewalks, no action can be 
 founded upon neglect to repair them.'' 
 
 in an action on the case in any court 
 of competent jurisdiction in this State, 
 to be instituted by such person or per- 
 sons, his, her, or their executors or 
 administrators against the board of 
 chosen freeholders of such county, 
 and any judgment in such action shall 
 be collectible in the manner and from 
 the same property as is now provided 
 by law for the collection of judgments 
 against such board of chosen free- 
 holders, or against any of the counties 
 of this State ; provided, that in case 
 such bridge shall be in more than 
 one of the counties of this State, such 
 action may be instituted against the 
 board of chosen freeholders of either 
 of such counties, at the option of the 
 person or persons so injured, his, her, 
 or their executors or administrators in 
 the manner herein provided ; and any 
 judgment recovered in such action 
 shall and may be collected from such 
 county against whose board of free- 
 holders such action was instituted ; 
 and in payment thereof, the county 
 paying the same shall be entitled to 
 demand, sue for, have, and receive 
 of and from the other county or coun- 
 ties in which such bridge was situate, 
 a ratable proportion of the sum so 
 paid, with lawful interest thereon. 
 
 " § 22. That all acts and parts of 
 acts repugnant hereto shall be, and 
 the same are hereby repealed ; pro- 
 vided, nevertheless, that nothing in 
 
 this act contained shall apply to the 
 counties of Burlington, Morris, Salem, 
 Sussex, Warren, Monmouth, Cumber- 
 land, Hunterdon, Gloucester, and 
 Mercer." 
 
 ' See N. J. Revision, p. 1018, note. 
 
 ' Dupuy v. Township of Union, 46 
 N. J. L. 269 (i?84), Van Syckel, J., 
 says : " The twentieth section of the 
 act of March 23, 1859 (Rev., p. 1017, pi. 
 i2o), provides that if any damage shall 
 happen to any person or persons, his, 
 her, or their team, carriage, or other 
 property, by means of the insufficiency 
 or want of repairs of any public road 
 in any of the townships of this State, 
 the person or persons sustaining such 
 damage shall have the right to re- 
 cover the same, with costs, in an 
 action on the case in any court of 
 competent jurisdiction in this State, 
 against the township by its corporate 
 name. 
 
 " This section of the road act ap- 
 plies only to injuries resulting from 
 the neglect of such repairs as are re- 
 quired by the general road law to be 
 made. 
 
 " The injury must result from the 
 insufficiency or want of repair of a 
 public road. The neglect of side- 
 walks, required to be made by a sub- 
 sequent special law pertaining only to 
 the township of Union, is not within 
 the terms of this section. A town- 
 ship is suable only for such neglect as 
 
254 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § I33 
 
 There is, however, a broader statute in reference to 
 bridges, and by this liability is imposed for damages oc- 
 casioned by neglect to erect, rebuild, or repair any bridge 
 which a township or the board of chosen freeholders of a 
 county is bound by law to erect, rebuild, or repair.^ And 
 it is held that this statute operates to protect persons 
 navigating the river as well as those who use the bridge 
 to cross from one bank to the other.* But it does not 
 
 makes all townships liable under sec- 
 tion 20. 
 
 " In the absence of langfuage in the 
 act of 1874 indicating a contrary in- 
 tention, the rule of the common law 
 must be held to prevail. But if this 
 is not the correct interpretation of 
 these statutes, the plaintiff must fail. 
 
 "By a special law passed March 
 
 22, i860 (Pamph. L., p. 554), it was 
 enacted that the act of March 23, 
 1859, shall not apply to the county of 
 Bergen. The re-enactment of the last- 
 mentioned act in 1874 (Rev., p. 1013, 
 § 99), did not operate as a repealer of 
 the act of March 22, i860, and there- 
 by extend the operation of the act of 
 March 23, 1859, over Bergen county. 
 The object and intent of section 99 
 was to continue the act of March 
 
 23, 1859, in force, with the same 
 operation and effect which had pre- 
 viously been given to it. State v. 
 Branin, 3 Zab. 484; State, Gorum, 
 pros. V. Mills, 5 Vroom 177, 180." 
 
 See also in reference to this statute, 
 Livermore v. Freeholders of Camden, 
 5 Dutch. 245 ; Cooley v. Freeholders 
 ot Essex, 3 Dutch. 41 5. 
 
 1 N. J. Revision, p. 86 (L. i860, p. 
 285). "Sec. I. In all cases where a 
 township or the board of chosen free- 
 holders of a county are chargeable by 
 law with the erection, rebuilding, or 
 repair of any bridge or bridges, and 
 the said township or board ot chosen 
 
 freeholders shall wrongfully neglect to 
 erect, rebuild, or repair the same, by 
 reason whereof any person or persons 
 shall receive injury or damage in his 
 or their persons or property, he or 
 they may bring his or their action of 
 trespass on the case against said 
 township or said board of chosen 
 freeholders, as the case may be, and 
 recover judgment against them to the 
 extent of all such damage sustained, 
 as aforesaid, which said judgment 
 shall be paid by the township or 
 county, as the case may be." 
 
 * Ripley v. Freeholders of Essex 
 and Hudson, 40 N. J. L. 45 (1878), 
 Depue, J., said : " The liability of 
 municipal bodies to actions for in- 
 juries resulting from neglect to erect, 
 rebuild, or repair bridges, where they 
 are chargeable by law with the duty of 
 erection or reparation, is no longer 
 left to rest upon the rules of the com- 
 mon law. By the statute of March 15, 
 i860, liability to an action for such in- 
 juries is expressly imposed. Rev., p. 
 86, § 9. 
 
 " It was contended by the defend- 
 ant's counsel that this statute is un- 
 available to the plaintiff, to enable 
 him to recover for the kind of injury 
 he sustained ; that the act gives a 
 remedy only to persons injured in per- 
 son or property, when passing or be- 
 ing carried over the bridge ; and Liv- 
 ermore v. Freeholders of Camden, 5 
 
§ 133 STATUTORY LIABILITY NEGLECTING HIGHWAYS. 255 
 
 cover damage received by one who was using the abut- 
 ments of a bridge to maintain his mill-dam, and who was 
 injured by their not having been securely built.^ 
 
 Dutcher 245, s. C. 2 Vroom 507 ; 
 McDougall V. Salem, no Mass. 21, 
 were cited in support of his conten- 
 tion. Neither of these cases is in 
 point. The decision in Livermore v. 
 Freeholders of Camden was made 
 under the twenty-first section of the 
 act of 1859 (Pamph. L., p. 285), which, 
 not only in its language, but from the 
 manifest object of the act of which it 
 was part, plainly showed that remedy 
 for injuries received in the use of a 
 bridge for the purpose of a passage 
 over, only was contemplated. The 
 case from Massachusetts was also de- 
 cided under a statute of similar im- 
 port. Gen. Stat., p. 245. 
 
 " The act of 1860 will not admit of 
 such a limited construction. It is a 
 section by itself, and the language 
 used is as comprehensive as well 
 could be. The condition on which 
 responsibility arises is a failure to 
 erect, rebuild, or repair, where the 
 township or county is, by law, re- 
 quired to erect, rebuild, or repair; 
 and the person to whom the action is 
 given is any person who shall receive 
 injury or damage in person or prop- 
 erty by reason of such neglect. There 
 is nothing in the language or connec- 
 tion that would warrant a departure 
 from the plain signification of the 
 words used. If it were permissible 
 to go outside the language used to 
 mal<e a construction, the fact that 
 the legislature, with the act of 1859 in 
 force, deemed additional legislation 
 in more general terms advisable, 
 raises a strong implication that the 
 new act was intended to have a wider 
 scope than the old one, and to remedy 
 defects that were discovered therein. 
 
 The construction contended for by 
 the defendant's counsel is precisely 
 that judicially given to the act of 
 1859, and gives no effect to the more 
 general and comprehensive language 
 of the new act. The plaintiff's vessel 
 was injured in the course of the navi- 
 gation of the river, and the injury re- 
 sulted directly from the defendant's 
 neglect to keep the bridge in proper 
 repair. The right to maintain an 
 action for that injury is not only with- 
 in the words of the act of i860, but is 
 also within the spirit and reason of 
 the act." See also Freeholders of 
 Bergen County v. State, 42 N. J. L. 
 263 (1880), where it is held that free- 
 holders may be indicted for neglect 
 to comply with the statute requiring 
 them to repair bridges. 
 
 > In Jernee v. Freeholders of Mon- 
 mouth County, 52 N. J. L. 553, 21 
 Atl.Rep. 295, n L. R. A. 416 (1890), 
 where injury was done to the plain- 
 tift's grist and saw mill by waters 
 breaking through the abutment cf a 
 bridge, and action was brought under 
 the statute to recover the damages 
 suffered, McGill, Ch., said : " In 
 construing the act of i860, upon 
 which the right of action in this case 
 is claimed to rest, it will be of utility 
 and proper to refer to the statutory 
 law as it stood prior to that enact- 
 ment ; for, as has been seen, no right 
 of action against the freeholders for 
 their neglect existed independently of 
 statute. In 1859, by the twenty-first 
 section of a supplement to the road 
 law (P. L. 633; Revision, p. 1017, 
 §21), it was provided that, if any 
 damage should happen to any person 
 or persons, his, her, or their team. 
 
256 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 1 33 
 
 And, apart from these statutes, there is no liability for 
 neglect to repair highways.^ 
 
 carriage, or other property, by means 
 of the insufficiency or want of repair 
 of any bridge upon any public road, 
 such person or persons might have 
 action therefor against the freehold- 
 ers, etc. In Livermore v. Freehold- 
 ers, 29 N. J. Law 24s, on appeal, 31 
 N. J. Law 507, where the action, 
 grounded upon the act of 1859, was 
 for consequential injury, by the fall of 
 a county bridge across a mill-dam, 
 upon the dam and sluice gates, Z^*- 
 quod, the dam and gates were broken 
 down, it was held that the action per- 
 mitted by that statute was limited to 
 one brought for injury received in the 
 use of the bridge as a passageway, 
 and that it could not be maintained 
 for damage caused by the falling of a 
 bridge upon property beneath it. This 
 construction of the law of 1859 was 
 not had until after the passage of the 
 act of i860, but it is to be assumed 
 that the law-makers appreciated the 
 limited extent of the act of 1859 at the 
 time of the later enactment. At all 
 events, the latter act is more liberal 
 and comprehensive in its terms, both 
 in reference to the property damaged, 
 for it contains no restrictive specifica- 
 tion of the character of the property 
 intended, and also in reference to the 
 neglects which may occasion liability, 
 for it couples with neglect to repair, 
 neglect to erect and rebuild. But the 
 law fails to expressly limit the liability 
 for neglects, and the precise questions 
 now to be determined are what that 
 limit is and whether the plaintiff's case 
 is within it. In the Supreme Court, in 
 Ripley v. Freeholders, 40 N. J. Law 
 45, an action was brought for damage 
 
 to the plaintiff's vessel by its coming 
 in collision with an unrepaired draw 
 of a bridge over the Passaic River 
 which the defendants were bound to 
 maintain ; and Mr. Justice Depue, in 
 pronouncing the opinion of the court, 
 said of the limit of liability : ' The act 
 of i860 is a remedial statute. It 
 should be construed to give a remedy 
 by action for all injuries to persons or 
 property, for the safety of which the 
 duty of building, rebuilding, or repair- 
 ing the particular bridge is bylaw cast 
 upon the municipal body, where the 
 damages result directly from neglect 
 in the performance of such duty.' In 
 other words, where the municipal body 
 is bound by law to build, rebuild, and 
 repair a bridge, with a view to the 
 safety of certain persons and prop- 
 erty, and it shall neglect to perform 
 the duty thus required of it, and dam- 
 age shall result directly to those per- 
 sons or that property, it may be sued. 
 And it was in that case held that one 
 purpose of the bridge there in ques- 
 tion was, by means of a draw, to af- 
 ford a safe passage through the bridge 
 for vessels navigating the Passaic 
 River ; and it was considered that, as 
 the bridge crossed a navigable stream 
 and was bound to maintain a draw, it 
 owed a duty to the persons and prop- 
 erty passing through it upon the wa- 
 ter, as well as to the persons and 
 property passing over it. The deci- 
 sion in that case is approved. It is 
 quite obvious that the legislative in- 
 tent was to give a remedy for injury 
 only where, of right, there is depend- 
 ence upon the bridge for the full and 
 safe performance of its appropriate 
 
 ' Pray v. Jersey City, 32 N. J. L. 394. 
 
§ 134 STATUTORY LIABILITY NEGLECTING HIGHWAYS. 257 
 
 § 134. Rhode Island. — By the statute in Rhode Island ^ 
 towns are liable for neglecting to keep their highways 
 and bridges "in good repair"; but there is no liability 
 for damages occasioned by the presence of snow or ice in 
 a highway unless the town has had twenty-four hours' 
 written notice of the existence of the particular obstruc- 
 tion, and has not commenced its removal. This provi- 
 sion of the statute was not in existence at the time of the 
 decision of the case of Providence v. Clapp^ by the 
 
 functions. The persons and property 
 intended by the act may therefore be 
 designated as the persons and prop- 
 erty to whom and to which the bridge 
 involved in a given case owes a duty. 
 In the case of Ripley v. Freeholders, 
 the bridge owed the duty of providing 
 a sufficient draw for safe passage. In 
 the case now considered it is not per- 
 ceived that the bridge was under any 
 obligation to protect either the plain- 
 tifl's mill or his dam from injury by 
 water in the mill-pond. The bridge 
 merely rested upon the dam, and, in 
 the performance of its duty in provid- 
 ing a safe passage, it was only inci- 
 dentally obliged to maintain the dam 
 — not for the purpose of keeping the 
 water in, but far enough to secure its 
 own stability. The dam belonged to 
 the mill-owner, and he was charged 
 with its preservation for his own pur- 
 poses. It is clear that he had no le- 
 gal right to rely upon its incidental 
 preservation for the bridge's purposes 
 for the protection of his mill from the 
 water which was behind it. It fol- 
 lows, then, that this action must fail, 
 because the bridge did not owe him a 
 duty respecting the subject-matter of 
 his suit." 
 
 1 Public Statutes of Rhode Island 
 
 (1882, p. 172), title X., ch. 65 : "§13. 
 
 Every town which shall neglect to 
 
 keep in good repair its highways and 
 
 17 
 
 bridges, shall be fined not less than 
 fifty dollars, nor more than five hun- 
 dred dollars ; and execution shall issue 
 therefor against such town. 
 
 " § 14. Such town shall also be lia- 
 ble to all persons who may in any 
 wise suffer injury to their persons or 
 property by reason of any such neg- 
 lect ; to be recovered in an action on 
 the case. 
 
 "§15. The several towns shall pro- 
 vide by law in such manner and under 
 such penalties as they may deem ex- 
 pedient, for removing snow from the 
 public highways, so as to render the 
 same passable with teams, sleds, and 
 sleighs ; but nothing in this chapter 
 shall be so construed as to render any 
 town or city liable for any injury to 
 person or property caused by snow or 
 ice obstructing any or any part of the 
 highways therein, unless notice of the 
 existence of the particular obstruction 
 shall have been given to the surveyor 
 of highways, in writing, for at least 
 twenty-four hours before the injury 
 was caused, and such town or sur- 
 veyor shall not thereupon within said 
 time have commenced the removal of 
 such obstruction, or caused any side- 
 walk which may have been obstructed 
 by ice to be rendered passable by 
 spreading ashes or other like sub- 
 stances thereon." 
 
 » 17 How. (U. S.) 161. 
 
258 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 135 
 
 United States Supreme Court, in which case the statute 
 of the State of Rhode Island was construed. 
 
 Objects falling upon persons using a highway are not 
 defects under the statute.^ 
 
 § 135. Michigan.— Among the Western States Michigan 
 has been the most conspicuous in advocating the doctrine 
 that there is no common-law liability for failure to re- 
 pair a highway, and the statutes of the State ^ have for 
 
 ' Taylor v. Peckham, 8 R. I. 349 
 <i866), Bradley, C. J., says: "This 
 liability is one created by statute and 
 cannot be enlarged by courts beyond 
 the scope and intention of the statute; 
 and when a town keeps a highway in 
 order, the liabilities for accidents in 
 consequence of a sign being insuffi- 
 ciently fastened against an adjacent 
 building was not intended by the 
 statute, we think, to be imposed upon 
 the town. It is one of the large class 
 of accidents to which a traveler upon 
 a. public thoroughfare is subjected, 
 though the town may have done its 
 whole duty, under the statute, in re- 
 gard to the highway. The liability for 
 such accidents would carry with it 
 an equally extensive authority. The 
 towns must necessarily have a corre- 
 sponding right to control the uses of 
 property adjoining the highway, so as 
 to protect themselves from the liabili- 
 ties for such use. Our statute permits 
 the surveyor of highways to go out- 
 side of the highway for certain speci- 
 fied purposes ; and those purposes do 
 not include any protection of the 
 traveler upon the highway from acci- 
 dents like this, arising from the use of 
 Jands or buildings not within the high- 
 way. This right, if it exists, must 
 -have some other origin than a statute 
 ■which imposes a liability for the care 
 of highways ; and even the right to 
 protect the sides of the highway by a 
 
 rail or otherwise, from contiguous 
 dangers, like an open cellar or a steep 
 and dangerous declivity, does not 
 include the right or the duty to fence 
 off the side of the way, when no such 
 immediate and adjacent danger exists. 
 Sparhawk v. Salem, i Allen 30." See 
 also Yeaw v. Williams, 15 R. I. 20 
 (1885); Bennett v. Fifield, 13 R.I. 139 
 (1880); Wixon v. Newport, 13 R. I. 
 454 ; Chapman v. Cook, 10 R. I. 304 
 (1872). 
 
 * Howard's Annotated Statutes of 
 Michigan, vol. 3 (Supplement, 1883- 
 1890, pp. 30, 31). 
 
 § I446f, Section i. "The People of 
 the State of Michigan enact, That any 
 person or persons sustaining bodily 
 injury upon any of the public high- 
 ways or streets in this State, by rea- 
 son of neglect to keep such public 
 highways or streets, and all bridges, 
 sidewalks, crosswalks, and culverts on 
 the same in reasonable repair, and in 
 condition reasonably safe and fit for 
 travel by the township, village, city, or 
 corporation, whose corporate authori- 
 ty extends over such public high- 
 way, street, bridge, sidewalk, cross- 
 walk, or culvert, and whose duty it is 
 to keep the same in reasonable repair, 
 such township, village, city, or corpo- 
 ration shall be liable to and shall pay 
 to the person or persons so injured or 
 disabled just damages, to be recovered 
 in an action of trespass on the case 
 
§ 135 STATUTORY LIABILITY NEGLECTING HIGHWAYS. 259 
 
 some years provided a remedy for those who have been 
 injured by the negligence of municipal corporations in 
 this respect. Until 1887 the statute of the State did not 
 cover injuries received on sidewalks,^ however, and the 
 
 before any court of competent juris- 
 diction (L. 1887, act 264). 
 
 "Sec. 2. If any horse or other ani- 
 mal, or any cart, carriage, or vehicle, or 
 other property, shall receive any injury 
 or damage by reason of neglect by any 
 township, village, city, or corporation 
 to keep in repair any public highway, 
 street, bridge, sidewalk, crosswalk, or 
 culvert, the township, village, city, or 
 corporation, whose duty it is to keep 
 such public highway, street, bridge, 
 sidewalk, crosswalk, or culvert in re- 
 pair, shall be liable to and shall pay 
 the owner thereof just damage, which 
 may be recovered in an action of tres- 
 pass on the case before any court of 
 com petent jurisdiction. 
 
 "Provided, That in all actions 
 brought under this act it must be 
 shown that such township, village, or 
 city has had reasonable time and op- 
 portunity, after knowledge by or notice 
 to such township, village, or city that 
 such highways, streets, bridges, side- 
 walks, crosswalks, or culvert (sic) 
 have become unsafe or unfit for trav- 
 el, to put the same in the proper con- 
 dition for use, and has not used rea- 
 sonable diligence therein after such 
 knowledge or notice." 
 
 § 3 provides for raising special 
 funds for purposes of repair when 
 ■necessary. 
 
 "§4. The provisions of this act 
 shall not apply to public highways 
 which have not been in use ten years ; 
 but nothing in this section shall be 
 construed as exempting townships, 
 villages, and cities from maintaining 
 their streets, bridges, sidewalks, cross- 
 ■walks,and culverts and the approaches 
 
 to bridges in a safe condition for pub 
 lie travel. 
 
 " § 5. No township, village, or city 
 in this State shall be liable in dam- 
 ages or otherwise to any person or 
 persons for bodily injury, or for injury 
 to any property sustained upon any 
 of the public highways, streets, 
 bridges, sidewalks, crosswalks, or 
 culverts in such townships, vil- 
 lages, or cities, except under and 
 according to the provisions of this 
 act, and the common-law liability of 
 townships, villages, and cities of this 
 State, for or on account of bodily in- 
 juries sustained by any person by rea- 
 son of neglect to keep in repair public 
 highways, streets, bridges, sidewalks, 
 crosswalks, or culverts is hereby ab- 
 rogated." 
 
 See for authorities holding there is 
 no common-law liability in Michigan, 
 supra, § 54. 
 
 ' Detroit v. Putnam, 45 Mich. 265 
 (1881); Grand Rapids v. Wyman, 46 
 Mich. 516; O'Neil v. Detroit, 50 
 Mich. 133 (1883). See for actions 
 under the statute of 1887 for injuries 
 on sidewalks : Clark v. Muskegon, 50 
 N. W. Rep. 254 (1891); Tice V.Bay 
 City, 84 Mich. 461 (1890); Thompson 
 V. Quincy, 83 Mich. 173, 10 L. R. A. 
 734 (1890); O'Neill V. V/est Branch, 
 81 Mich. 544, 45 N. W. Rep. 1023 
 (1890); Campbell v. Kalamazoo, 80 
 Mich. 655 (1890). 
 
 Where death results from an injury 
 received on a defective highway, an 
 action can be brought under L. 1848, 
 am'd L. 1873, How. St., §§ 8313, 8314. 
 See Racho v. Detroit, 51 N. W. Rep. 
 360. 
 
26o MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § I35 
 
 present statute does not give citizens of that State the 
 same protection from unsafe streets tiiat tiie common law 
 affords, for it is considered to apply only to defects aris- 
 ing from neglect in the construction or in the repair of 
 the road/ and not to obstructions placed in the way,^ and 
 not to accumulations of snow and ice,* or to defects in an 
 open ditch adjoining a road which was not a culvert,* and 
 not for failure to keep an alley in repair.^ In this State, 
 
 ' Sepert v. Alpena, 78 Mich. 165, 
 43 N. W. Rep. 1098 (1889). 
 
 ^ Agnew V. Carunna, 55 Mich. 428 
 (1885). 
 
 5 McKellar v. Detroit, 57 Mich. 158 
 (1885). 
 
 ■■ Kowallia v. St. Joseph, 73 Mich. 
 322 (1889). 
 
 ' Face V. Ionia, 51 N. W. Rep. 184 
 (1892), Morse, C. J., here says : " We 
 find in the statute as it now stands 
 no duty imposed upon cities to keep 
 alleys in good repair, or in a safe and 
 reasonable condition for public travel. 
 There exists no such duty under the 
 common law in this State. There is 
 no liability created by statute for in- 
 juries received by reason of alleys 
 being out of reasonable repair and 
 unsafe for travel, and the common 
 law imposes none. In this State an 
 alley has not generally been treated 
 as a street or highway, nor included 
 in either of those terms. The charter 
 of the city of Ionia, as do all our city 
 charters, treats an alley as different 
 from a street. A public alley may be 
 in a certain sense a public highway, 
 but not in the sense of the statute 
 under which this action is brought. 
 The special terms used in the statute 
 do not enlarge, but limit, the force of 
 the general words used. As said in 
 Detroit v. Putnam, supra, a street 
 would generally include all within its 
 line ; but when the statute went 
 
 further, and used the words, 'bridges, 
 culverts, and crosswalks,' it excluded 
 sidewalks, because of the special lim- 
 itation. It would be enlarging the 
 scope of the statute, and legislation by 
 this court, to hold that the legislature 
 intended to include alleys in the terms 
 ' highway ' or ' street.' ' An " alley " 
 is not a highway in the proper sense 
 of the term, but is no more than a 
 way subject to a modified supervision, 
 and liable to be used for drainage and 
 other urban services, under municipal 
 regulation ; but intended for the con- 
 venience of adjacent property, and 
 not for general travel or passage, like 
 streets.' Paul v. Detroit, 32 Mich. 
 III. It is also sdid in the same case 
 that the proper use of alleys is quite 
 as familiar as those of streets, so that 
 the word ' alley ' may be said to have 
 acquired a definite meaning. And in 
 Beecherv. People, 38 Mich. 29i,Chief- 
 Justice Campbell says : ' Assuming 
 that all alleys may, under some cir- 
 cumstances, involve public easements 
 in the nature of ways, yet their pri- 
 mary purpose, even then, is not to be 
 substituted for streets, but to serve as 
 means of accommodation to a limited 
 neighborhood for a chiefly local con- 
 venience.' Again, Judge Marston 
 says : ' An alley can, in no proper or 
 legal sense, be considered as a public 
 highway, or be governed by rules re- 
 lating thereto.' See Bagley v. People, 
 
136 STATUTORY LIABILITY NEGLECTING HIGHWAYS, 26 1 
 
 moreover, the legislature has reserved to itself the ques- 
 tion of general liability by providing in the statute of 
 1887 that the common-law liability for neglect to repair 
 highways was thereby abrogated. 
 
 § 136. Wisconsin. — The statute in Wisconsin^ gives a 
 remedy for damages received by reason of the " insuffi- 
 ciency or want of repairs of any bridge, sluiceway, or 
 road in any town, city, or village." And it provides that 
 in case the road whereon the injury is received is a 
 county road, that the action shall be against the county. 
 The language of the statute varies from that used in the 
 
 43 Mich. 355, 5 N. W. Rep. 415. In 
 Campan v. Board (Mich.), 49 N. W. 
 Rep. 39, it was held that the city of 
 Detroit was under no legal obligations 
 to clean and care for a public alley at 
 the public expense. It follows from 
 our own rulings that even a public 
 alley in this State is not a public 
 highway in the sense of the statute 
 under which plaintiff seeks to recover, 
 and that there is now no law in this 
 State making it the duty of a city to 
 keep its alleys in good or reasonable 
 repair, or reasonably fit for public 
 travel. It is not necessary to discuss 
 the cases cited from other States by 
 counsel as bearing on this question. 
 They can have no controlling force 
 or effect, as the case is clearly settled 
 by the laws of our own State and the 
 previous holdings of this court." 
 
 See further in reference to the 
 Michigan statute : Detroit v. Os- 
 borne, 135 U. S. 492, supra, % 55 ; 
 Sharp v. Evergreen Tp., 67 Mich. 
 443; Williams v. Grand Rapids, 59 
 Mich. 51 (1 886); Mc Arthur v. Sag- 
 inaw, 58 Mich. 357 (1885); Keyes v. 
 Marcellus, 50 Mich. 439(1883); Burn- 
 ham V. Byron, 46 Mich. 555 (1881). 
 And in reference to the notice of in- 
 
 jury required by L. 1885, p. 496, see 
 Whitney v. Port Huron, 50 N. W. 
 Rep. 316; Dundas v. Lansing, 75 
 Mich. 499. 
 
 1 Statutes of Wisconsin (annotated 
 by Sanborn and Berry man, 1889, vol. 
 i., p. 823), section 1339: 
 
 " If any damage shall happen to 
 any person, his team, carriage, or 
 other property, by reason of the in- 
 sufficiency or want of repairs of any 
 bridge, sluiceway, or road in any 
 town, city, or village, the person sus- 
 taining such damage shall have a 
 right to sue for and recover the same 
 against any such town, city, or village ; 
 but if such damage shall happen by 
 reason of the insufficiency or want of 
 repairs of a bridge, sluiceway, or 
 road, which any county shall have 
 adopted as a county road, and is by 
 law bound to keep in repair, such 
 county shall be liable therefor, and 
 the claim for damages shall be against 
 the county." The statute then pro- 
 vides for the case of a bridge to be 
 maintained at the expense of two or 
 more counties, and then provides that 
 a notice of injury be given within 
 ninety days after the accident. 
 
262 MUNICIPAL DUTIES— GOVERNMENTAL AFFAIRS, § I37 
 
 Other States heretofore given, and the remedy extends 
 only to the cases specified in the act.^ 
 
 The provisions of the statute in reference to the notice 
 of injury must also be complied with.* It is also pro- 
 vided by a recent law ^ that where the injury is occasioned 
 by the negligent act of a third party, he may be joined 
 as a defendant in an action against the corporation, and 
 that judgment may be taken against both, but that ex- 
 ecution shall issue in the first instance only against the 
 person primarily liable. And this law has been upheld 
 by the courts.* 
 
 § 137. South Carolina, West Virginia, etc.— A similar 
 statute also exists in South Carolina,^ and in that State 
 the liability is wholly dependent upon the statute.* In 
 West Virginia, however, the courts admit the common- 
 law liability, although the code now regulates the action 
 for damages.'' The States of Arkansas and California 
 
 1 Smalley v. Appleton, 75 Wis. 18 ' General Statutes of S. C. (1882, p. 
 
 (1889). See Goeltz v. Ashland, 75 323), sec. 1087 : 
 
 Wis. 642 (1890); Bogie V. Waupan, "Any person who shall receive 
 
 75 Wis. I, 43 N. W. Rep. 667 (1889) ; bodily injury or damage in his person 
 
 Adams v. Oshkosh, 71 Wis. 49 ; or property through a defect in the 
 
 Schroth V. Prescott, 63 Wis. 652 ; repair of a highway, causeway, or 
 
 Whitney v. Milwaukee, 57 Wis. 639 bridge, may recover, in an action 
 
 (1883); iSpearbracker V. Larrabee, 64 against the county, the amount of 
 
 Wis. 573 (1885); Strong V. Stevens, damages fixed by the finding of a 
 
 62 Wis. 255 ; Weissenberg v. Winne- jury. If such defect in any road, 
 
 conne, 56 Wis. 667 ; Harper v. Mil- causeway, or bridge existed before 
 
 waukee, 30 Wis. 365 (1872) ; Sutton such injury or damage occurred, such 
 
 v. Wauwatosa, 29 Wis. 21 (1871). damages shall not be recovered by 
 
 ^ McDonald v. Ashland, 78 Wis. the person so injured, if his load ex- 
 
 251, 47 N. W. Rep. 434 (1890) ; Cain- ceeded the ordinary weight." 
 
 cross V. Pewaukee, 78 Wis. 66 ; * Supra, % 54. 
 
 Goldsworthy v. Linden, 75 Wis. 24 ' Code of W. Va. (1887, ch. 43), 
 
 (1889); Plum V. Fond du Lac, 51 §53: 
 
 Wis. 393 ; Dorsey v. Racine, 60 Wis. " Any person who sustains an in- 
 
 292 ; Benware v. Pine Valley, 53 jury to his person or property by rea- 
 
 Wis. 527. son of a public road or bridge, in a 
 
 ' Laws of 1889. chap. 471. county, or by reason of a public road, 
 
 * Raymond v. Sheboygan, 45 N. bridge, street, sidewalk, or alley in an 
 
 W. Rep. 125 (1890). incorporated city, village, or town. 
 
§ 138 STATUTORY LIABILITY NEGLECTING HIGHWAYS. 263 
 
 deny the common-law liability,^ and seem not to have 
 provided any statutory remedy. In these States, there- 
 fore, individuals are wholly without remedy when they 
 receive injuries by reason of the neglect of municipal 
 corporations to keep their highways in a reasonably safe 
 condition for use. In Vermont and New Jersey also the 
 liability is so greatly restricted that individuals who are 
 injured are frequently without remedy for the wrong that 
 has been done them.*' 
 
 § 138. Notice of injury. — The statutes already quoted 
 show that quite generally a notice of injury must be 
 given before proceedings can be taken against the mu- 
 nicipality to enforce the claim at law. Provisions simi- 
 lar to these are also found in some States where the lia- 
 bility is recognized as a common-law remedy,^ and also 
 in some city charters.* The statute imposing liabiHty 
 upon towns in New York, as recently amended, also con- 
 tains a provision of this character.'' 
 
 being out of repair, may recover all ' Compare supra, §§ 131, 133. 
 
 damages sustained by him by reason ' See Acts 22 Gen. Assem. Iowa, 
 
 of such injury, in an action on the c. 25, § i (July, 1888); Kennedy v. 
 
 case in any court of competent juris- Des Moines, 50 N. W. Rep. 880 ; 
 
 diction, against the county court, city, Maddoxv. Randolph Co., 65 Ga. 216 ; 
 
 village, or town in which such road. Harder v. Minneapolis, 40 Minn. 446 ; 
 
 bridge, street, sidewalk, or alley may Hancock v. Leggett Co., 1 1 5 Ind. 544 ; 
 
 be, except that such city, village, or Galesburg v. Benedict, 22 111. App.i 11. 
 
 town shall not be subject to such * Jones v. Albany, 62 Hun 353, 17 
 
 action, unless it is required by its N. Y. Supp. 332 (1891); Paddock v. 
 
 charter to keep the road, bridge, street, Syracuse, 61 Hun 8, 15 N. Y. Supp- 
 
 sidewalk, or alley therein, at the place 387 (1891); McDonald v. Troy, 36 
 
 where such injury is sustained, in re- N. Y. St. Rep. 704; Minick v. Troy, 
 
 pair. If it is not so required, the 83 N. Y. 514 (1881). Compare Gage 
 
 action and remedy shall be against v. Homellsville, 106 N. Y. 667 ; Curry 
 
 the county court," etc. See Phillips v. v. Buffalo, 57 Hun 25 ; Babcock v. 
 
 County Court, 31 W. Va. 477, 7 S. E. New York, 56 Hun 196 ; Dawson v. 
 
 Rep. 427 (1888) ; Moore v. Hunting- Troy, 48 Hun 383 ; Reining v. Buffa- 
 
 ton, 31 W. Va. 842 ; Chapman v. lo, 102 N. Y. 308. 
 
 Milton, 31 W. Va. 384, 7 S. E. Rep. ' This statute is as follows (Laws 
 
 22. Supra, § S3. 1890, chap. 568, § 16): "Every town 
 
 ' Supra, % 54. shall be liable for all damages to per- 
 
CHAPTER XVI. 
 
 NEGLIGENCE IN PUBLIC WORK. 
 
 § 139. Corporation to exercise reasonable care in all work. 
 
 140. Governmental questions before commencing work. 
 
 141. Negligence in plan. 
 
 142. Liability for positive injury, even if caused by plan. 
 
 143. Direct injury from collecting surface water. 
 
 144. Direct injury from sewage. 
 
 145. Liability if unsafe work results from plan. 
 
 146. Grading to be done with care. 
 1 4.7. Erecting public buildings. 
 
 148. Other instances of negligence in public work. 
 
 § 139. Corporation to exercise reasonable care in all 
 works. — When a municipal corporation undertakes any 
 work, whether it be for its own private emolument or for 
 the public good solely, it should be held by the law to 
 the exercise of reasonable care in its performance. The 
 sole control of the work rests in the hands of the cor- 
 
 son or property, sustained by reason by transportation on the same, of any 
 of any defect in its highways or vehicle and load, together weighing 
 bridges, existing because of the neg- four tons or over ; but any owner of 
 lect of any commissioner of high- such vehicle or load, or other person 
 ways of such town. No action shall engaged in transporting or driving the 
 be maintained against any town to re- same over any bridge, shall be liable 
 cover such damages, unless a verified for all damages resulting therefrom." 
 statement of the cause of action shall This statute is broader than the act 
 havebeenpresentedtothesupervisorof ofi88i (ch. 700). See Whitney v. Ti- 
 the town within six months after the conderoga, 127 N. Y. 40 (1891); Clap- 
 cause of action accrued ; and no action per v. Waterford, 62 Hun 170 (1891); 
 shall be commenced until fifteen days Glazier v. Hebron, Id. 137. See also 
 after the service of such statement." L. 1886, ch. 572; Merz v. Brooklyn, 
 And it is provided by § 154: " No 33 N. Y. St. Rep. S77. 128 N. Y. 617 
 town shall be liable for any damage (1891); Duff v. New York, 40 N.Y.St, 
 resulting to person or property by Rep. 230, 15 N. Y. Supp. 863 (1891). 
 reason of the breaking of any bridge. See infra, § 192. 
 
§ 139 NEGLIGENCE IN PUBLIC WORK. 265 
 
 poration, and the public must act upon the belief that 
 the corporation will protect individuals from danger. 
 The work in its plan and progress affects the public 
 fully as much as any private work carried on by an 
 individual. And the danger to individuals from the 
 negligence of laborers is the same, whether they are 
 excavating for a street railway, or for a public sewer, 
 or are constructing a private dwelling or a public school. 
 In each case there is the one duty to exercise reasonable 
 care to protect others from injury. Both the individual 
 and the corporation act as independent members of 
 society, and the safety of one member necessarily de- 
 pends on the exercise of care by every other. And it 
 may be argued that a municipal corporation is more 
 properly within the obligation of this duty than any 
 individual or any private corporation. For such a 
 body is formed largely for the public advantage and 
 protection, and for it to endeavor to escape from the 
 obligations which the law imposes upon individuals for 
 the general good seems wholly unreasonable, and espe- 
 cially so in view of the fact that with the ordinary powers 
 of taxation these corporations suffer no appreciable in- 
 convenience from the liability, while the injury from not 
 allowing a remedy to an individual is usually serious. 
 The fact that the duty is not enforceable against the 
 sovereign power of the State does not dispense with the 
 moral obligation for the exercise of care by such a power, 
 and in every case where there is opportunity to enforce 
 the duty against a member of the body politic, the law 
 should be ready to give its sanction to the remedy ; for 
 the aim of justice is to remedy wrongs ; and where an 
 individual suffers an injury occasioned by the wrongful 
 act of a public corporation, to deny him his remedy is to 
 sanction the wrongful act of the corporation and to 
 license the commission of further wrongs. The courts, 
 
266 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § I40 
 
 as we have seen, have quite universally extended these 
 principles to all work carried on for the profit of munici- 
 pal corporations, and in regard to such work they are 
 held to liabilities similar to those resting on private cor- 
 porations.^ So they are by general consent held respon- 
 sible for acts which produce positive injury to others;* 
 but it is believed that the duty to exercise care is still 
 more far-reaching, and that it applies to every ministerial 
 act incidental to the prosecution of all public work and 
 to the care of all public property controlled by the cor- 
 poration. 
 
 That this is the proper scope of this duty we shall 
 attempt to show in this and the succeeding chapter. 
 
 § 140. Governmental questions before commencing work. 
 — There are ordinarily many preliminary questions to be 
 settled before the details of any public work can be ar- 
 ranged. These are questions which call into force the 
 governmental powers of the corporations. They concern 
 ordinarily the expediency of doing the proposed work and 
 the general manner in which it shall be done. And upon 
 these and similar questions municipal corporations act 
 without responsibility. It is for them to decide in what 
 manner they shall exercise their discretionary and judi- 
 cial powers, and they incur no liability because of their 
 decisions upon these questions. Thus, in regard to drains 
 and sewers, it is ordinarily for the corporation to decide 
 when it shall have a system of drainage and sewerage ; how 
 extensive the system shall be, and what amount of money 
 the corporation shall expend upon it. These are ques- 
 tions within the province of the municipality as a gov- 
 ernmental agency, and the courts cannot review its con- 
 clusions in regard to them. And, until they are settled 
 and some specific work is decided upon, the legal obliga- 
 tion to exercise care is not brought to life. 
 
 Supra, %% 36-41. s Infra, §§ 142-144, 
 
§141 
 
 NEGLIGENCE IN PUBLIC WORK. 
 
 267 
 
 § 141. Negligence in plan.— But as soon as the corpora- 
 tion has determined to construct a public work, it enters 
 upon an undertaking which, in all its details, should be 
 subordinated to the rule requiring the use of care, for the 
 work is then ministerial. There has been much discus- 
 sion whether a municipal corporation will be liable for a 
 defect in the plan of a public work, and many authori- 
 ties have held broadly that it would not. The word 
 " plan," however, in the cases, as is clearly shown in a 
 recent case in the United States Supreme Court,* where 
 
 ' Johnston v. District of Columbia, 
 118U. S. 19 (1885), where Mr. Justice 
 Gray says : " The duties of the mu- 
 nicipal authorities in adopting a gen- 
 eral plan of drainage and determining 
 when and where sewers shall be built, 
 of what size and at what level, are of 
 a quasi judicial nature, involving the 
 exercise of deliberate judgment and 
 large discretion, and depending upon 
 considerations affecting the public 
 health and general convenience 
 throughout an extensive territory, 
 and the exercise of such judgment 
 and discretion in the selection and 
 adoption of the general plan or sys- 
 tem of drainage is not subject to re- 
 vision by a court or jury in a private 
 action for not sufficiently draining a 
 particular lot of land. But the con- 
 struction and repair of sewers, accord- 
 ing to the general plan so adopted, 
 are simply ministerial duties ; and for 
 any negligence in so constructing a 
 sewer or keeping it in repair, the mu- 
 nicipality which has constructed and 
 owns the sewer may be sued by a per- 
 son whose property is thereby in- 
 jured. 
 
 " The principal decisions upon the 
 subject are collected in the briefs of 
 counsel, and generally, if not uniform- 
 ly, support these propositions. The 
 
 leading authorities are the judgments 
 of the Supreme Judicial Court of Mas- 
 sachusetts, delivered by Mr. Justice 
 Hoar, in Child v. Boston, 4 Allen 41, 
 51-53, and of the Court of Appeals of 
 New York, delivered by Chief-Justice 
 Denio in Mills v. Brooklyn, 32 N. Y. 
 489, 495-500- 
 
 " In Barnes v. District of Columbia, 
 91 U. S. 540, 556, it was said that in 
 Rochester White Lead Co. v. Roches- 
 ter, 3 N. Y. 463, ' The city was held 
 liable because it constructed a sewer 
 which was not of sufficient capacity 
 to carry off the water draining into it. 
 The work was well done, but the 
 adoption and carrying out of the plan 
 was held to be an act of negligence.' 
 But this was clearly a mistake, for in 
 the Rochester case the fact was dis- 
 tinctly found that the insufficiency of 
 the culvert to carry off the water was 
 owing, not merely to the smallness of 
 its size, but to ' the want of skill in its 
 construction' (3 N. Y. 465), and the 
 case was distinguished on that ground 
 in Mills V. Brooklyn, 32 N. Y. 499. 
 
 " In the present case, the only evi- 
 dence offered by the plaintiff which 
 was excluded by the court was evi- 
 dence of what, in the case of a freshet 
 or of a great fall of rain, would be the 
 consequence of the difference in level 
 
268 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 141 
 
 this question was presented, is ordinarily used to describe 
 the general plan or system of work, and where it is so 
 used, nothing more would seem to be decided than that 
 the general features of the system of drainage to be 
 adopted are to be settled by the corporation, and cannot 
 be reviewed by the courts.^ Some authorities have gone 
 much further than this, but it is believed to be contrary 
 to principle and the weight of authority to maintain 
 that where, in the performance of a public work, there 
 is any breach of the duty to exercise care, an action by 
 one who is damaged will not lie. 
 
 That such an action based on negligence can be main- 
 tained, although the authorities have but carried out the 
 original plan, must be admitted in the following in- 
 stances. 
 
 between the sewer in question and 
 another sewer connecting with it; 
 and this evidence, as the plaintiff's 
 counsel avowed, was offered ' with 
 the view of showing that the plan on 
 which the sewer had been construct- 
 ed by the authorities of the District 
 had not been judiciously selected.' 
 
 " The evidence excluded was clear- 
 ly inadmissible for the only purpose 
 for which it was offered. As show- 
 ing that the plan of drainage was in- 
 judicious and insufficient, it was in- 
 competent. As bearing upon the 
 question whether there was any neg- 
 ligence in the actual construction or 
 repair of the sewer, or the question 
 whether the sewer was so constructed 
 as to create a nuisance upon the plain- 
 tiff's property, it was immaterial." 
 
 ' In McClure v. City of Red Wing, 
 28 Minn. 186 (1881), Mitchell, J., said : 
 " The duty of providing drainage or 
 sewerage is in its nature judicial or 
 legislative, and consequently a munic- 
 ipal corporation is not liable for mere 
 non-action in failing to perform it. 
 
 But that is not this case. It has also 
 been held that, in adopting the ^««- 
 eral plan of an improvement, a mu- 
 nicipality performs a legislative duty, 
 whereas the manner of executing it 
 is a ministerial one. In the case at 
 bar, if it turned upon whether the 
 duty was judicial or ministerial, we 
 think the correct rule to apply would 
 be that in deciding upon the expedi- 
 ency of laying out this street, or upon 
 the route thereof to be adopted, or the 
 grade to be established, the city was 
 exercising judicial duties, for errors of 
 judgment in the performance of whicli 
 they would not be responsible ; but 
 having determined these matters, and 
 having decided it expedient to obstruct 
 the natural channel, then, in executing 
 and carrying this out, including the 
 construction of the sewer and fixing 
 upon its size or capacity, they were 
 exercising purely ministerial duties, in 
 the performance of which they are 
 held to the performance of reasonable 
 
§§ 142, 143 NEGLIGENCE IN PUBLIC WORK. 269 
 
 § 142. Liability for positive injury even if caused by plan. — 
 The case of one who is attempting to hold a municipality 
 liable for not giving to him all the benefits that he might 
 have, or that others have, from a public work must be 
 distinguished from the case of one whose premises have 
 been directly damaged because of the manner in which 
 the corporation has planned and carried out its work. In 
 the former case the corporation has not given all the 
 benefit that it might have conferred, but it was under no 
 legal duty to do anything in the matter, and therefore it 
 has committed no breach of duty;^ but in the latter case 
 it has been guilty of misfeasance, of directly injuring 
 another in the enjoyment of his rights, and it is therefore 
 responsible in damages for the injury it has inflicted. 
 That the defect arose from the plan of the work is im- 
 material — the injury is done,*and the neglect of the duty 
 to exercise care not to injure another has been violated. 
 And where positive damage of this kind is done by a 
 municipal corporation the courts of England and of this 
 country recognize the propriety of holding them re- 
 sponsible to the individuals who have suffered the loss.^ 
 
 § 143. Direct injury from collecting surface water. — This 
 direct injury to individuals has been frequently occasioned 
 by the plan pursuant to which municipalities have con- 
 structed their drains and sewers. And it is well settled 
 that whenever a municipal corporation collects surface 
 water intentionally or negligently, and allows it to flow 
 upon the land of an individual, it is liable for the damage 
 
 ' See Garrett v. Canandaigua, 40 (1889); Fair v. Philadelphia, 88 Pa. 
 
 N. Y. St. Rep. 944, 16 N. Y. Supp. 309, 32 Am. Rep. 455 (1879). 
 
 717 (1891); Mills V. Brooklyn, 32 2 gee authorities cited z^/Va, §§ 143- 
 
 N. Y. 489; Seifert v. Brooklyn, loi 148. Consult Dillon on Munic. Corp., 
 
 N. Y. 136 {infra, p. 277, n. 2); § 1042 ^/j^^./ Ray, Negligence of Im- 
 
 Daniels v. Denver, 2 Col. 669 (1875); posed Duties, pp. 289, 321 ; Harrison's 
 
 Frostburg v. Hitchins, 70 Md. 56 Munic. Manual, p. 359. 
 
270 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. §143 
 
 done to him.^ Such a corporation will not be liable, 
 however, for failing to furnish an outlet for the water 
 
 > In Burford v. Grand Rapids, 53 
 Mich. 98 (1884), Cooley, J., says: 
 "The legal protections of property are 
 the same against artificial persons as 
 against others, and the State itself or 
 any one of its municipalities has no 
 more power to deprive the owner of 
 his possessions than has the private 
 citizen. It has therefore been held 
 that though a city is not responsible 
 because of any failure to provide 
 proper sewerage, yet, if the effect of 
 the construction of one of its public 
 works shall be to collect water and 
 cast it upon the land of an individual 
 where it would not otherwise flow, 
 the city is liable. Ashley v. Port 
 Huron, 35 Mich. 296, S. C. 24 Am. 
 Rep. 552, and cases cited ; Rhodes v. 
 Cincinnati, 10 Ohio 159; Turner v. 
 Dartmouth, 13 Allen 291'; Wilson v. 
 New Bedford, 108 Mass. 261, S. C. ii 
 Am. Rep. 352 ; Byrnes v. Cohoes, 67 
 N. Y. 204; Inman v. Tripp, 11 R. I. 
 520, s. C. 23 Am. Rep. 520 ; Thurs- 
 ton V. St. Joseph, 51 Mo. 510, S. 
 C. II Am. Rep. 463; Gillison v. 
 Charleston, 16 W. Va. 282, s. C. 
 37 Am. Rep. 763 ; Templin v. Iowa 
 City, 14 Iowa 59 ; Ellis v. Iowa City, 
 29 Iowa 229; Ross V. Clinton, 46 
 Iowa 606, S. C. 26 Am. Rep. 169; 
 Van Pelt v. Davenport, 42 Iowa 308, 
 S. C. 20 Am. Rep. 622 ; O'Brien v. 
 St. Paul, 25 Minn. 333, s. C. 33 Am. 
 Rep. 470 ; Dixon v. Baker, 65 111. 
 518, s. C. 16 Am. Rep. 591 ; Indian- 
 apolis V. Lawyer, 38 Ind. 348 ; In- 
 dianapolis v. Tate, 39 Ind. 282 ; Weis 
 V. Madison, 75 Ind. 241, S. C. 39 Am. 
 Rep. 135." 
 
 In Evansville v. Decker, 84 Ind. 
 325, 43 Am. Rep. 86 {1882), it is said : 
 " A single objection is urged against 
 the complaint. The appellant's coun- 
 
 sel asserts that it is defective because 
 it shows that the only unskillfulness 
 or negligence on the part of the cor- 
 porate officers was in devising the 
 plan of the sewer. The objection can- 
 not prevail. It is well settled that a 
 municipal corporation is liable for 
 negligence in devising a plan for a 
 sewer, as well as for negligence in 
 carrying the plan into execution. 
 Cummins v. City of Seymour, 79 Ind. 
 491, S. C.41 Am. Rep. 618; Weis v. 
 City of Madison, 75 Ind. 241, s. C. 39 
 Am. Rep. 135 ; City of Indianapolis 
 V. Tate, 39 Ind. 282 ; City of Indian- 
 apolis V. Lawyer, 38 Id. 348 ; City of 
 Indianapolis v. Huffer, 30 Id. 235. 
 
 " A municipal corporation has no 
 right to collect a body of water and 
 lead it in a confined channel to a 
 point near the property of a citizen 
 without providing a proper outlet. 
 City of Indianapolis v. Lawyer, sufra ; 
 Weis V. City of Madison, supra. 
 
 " A city is not liable for injury re- 
 sulting from surface water thrown 
 from its streets as the result of their 
 proper and skillful improvement, but 
 is liable for injuries proximately re- 
 sulting, if it collects the water into a 
 channel and pours it upon another's 
 land. Templeton v. Voshloe, 72 Ind. 
 134, S. C. 37 Am. Rep. 139; Taylor 
 V. Fickas, 64 Ind. 167, S.C. 31 Am. 
 Rep. 114; Schlichter v. Phillipy, 67 
 Ind. 201 ; Weis v. City of Madison, 
 supra; 2 Dill. Mun. Corp. § 1051 (3d 
 ed.); Byrnes v. City of Cohoes, 67 
 N. Y. 204. 
 
 " A city is .not bound to make inlets 
 into public sewers for the purpose of 
 draining private property lying outside 
 of the corporate limits ; but when a 
 great body of surface water is col- 
 lected in a drain and conducted near 
 
§143 
 
 NEGLIGENCE IN PUBLIC WORK. 
 
 271 
 
 which accumulates naturally upon any particular lot.' 
 And it has been held that where surface water is disposed 
 
 to or upon such property, the city 
 must use ordinary care in providing 
 means for the flow of the water into 
 some natural stream or waterway. 
 It cannot gather the water together, 
 confine it in a sewer, and thus con- 
 duct it to the corporate limits and 
 cast it upon another's land. Cum- 
 mins V. City of Seymour, supra ; 
 O'Brien v. City of St. Paul, 18 Minn. 
 176; Jobs V. City of Minneapolis, 22 
 Id. 159; O'Brien v. City of St. Paul, 
 25 Id. 333, S. C. 33 Am. Rep. 470 ; 
 Noonan v. City of Albany, 79 N. Y. 
 470, s. C. 35 Am. Rep. 540. 
 
 "Where the system of drainage 
 adopted by a municipal corporation 
 makes it necessary to provide outlets 
 for water accumulated in confined 
 channels, the corporation must exer- 
 cise reasonable care and skill in pro- 
 viding them, or answer in damages 
 to the property-owners who sustain 
 injury from a neglect of this duty. 
 Having created the necessity, the duty 
 devolves upon it to make reasonable 
 provision for the escape of the water 
 without injury to adjacent proprietors. 
 Van Pelt v. City of Davenport, 42 
 Iowa 308, S. C. 20 Am. Rep. 622." 
 
 In Gilluly v. Madison, 63 Wis. 518, 
 it was said : " In this case an increased 
 quantity of surface water, collected 
 from other sources than the adjoining 
 street, was made to flow in the gutter 
 to and around the plaintiff's premises. 
 It seems to us it was the duty of the 
 city to exercise reasonable care in the 
 construction of the gutter in the first 
 instance ; also, not to suffer it to get 
 out of repair, or fill up with weeds 
 
 and other matter, so as to cause the 
 water to overflow into the plaintiff's 
 cellar and basement, to his injury, 
 whether the premises were below 
 grade or not. The case is distin- 
 guishable from Allen v. .Chippewa 
 Falls, 52 Wis. 430; Waters v. Bay 
 View, 61 Wis. 642 ; and Heth v. Fond 
 du Lac, ante, p. 228, where there was 
 no allegation or proof of any negli- 
 gence or unskillfulness on the part of 
 the municipality, either in grading its 
 streets or in constructing gutters 
 thereon for carrying off surface water. 
 
 " If there was negligence in the 
 construction of this gutter or blind 
 ditch, or there was a negligent failure 
 to keep the same in repair, free from 
 obstructions, and the plaintiff was 
 thereby injured, he is entitled to re- 
 dress, though his lot is below grade. 
 We recall no case in this court in 
 conflict with this view, nor do we 
 think any of the cases cited by coun- 
 sel lay down a different rule. It 
 seems to us it would be stretching 
 the doctrine of immunity from liabil- 
 ity to an unreasonabe extent, to hold 
 there was no responsibility on the 
 part of the city in such a case. See 
 Freburg V. Davenport, 63 Iowa 119; 
 Weis V. Madison, 75 Ind. 241, where 
 will be found a* very able discussion 
 of the question of municipal liability 
 for injuries caused by surface water." 
 
 See further. Gross v. Lampasas, 74 
 Tex. 195 (1889); Rychlicke v. St. 
 Louis, 98 Mo. 497 (1889), II S. W. 
 Rep. 1 001 ; Field v. West Orange, 
 46 N. J. Eq. 183; Noonan v. Albany, 
 79 N. Y. 470 (j88o); Crawfordsville v. 
 
 ' Cochrane v. Maiden, 152 Mass. 39 Ohio St. 665 (1884); Stewart v. 
 365 (1890); Noble V. St. Albans, 56 Clinton, 79 Mo. 603; Fair v. Phila- 
 Vt. 522(1884); Springfield V. Spence, delphia, 88 Pa. 309; Denver v. Ca- 
 
272 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § I44 
 
 of in accordance with the provisions of a statute the cor- 
 poration, unless wantonly negligent, will not be re- 
 sponsible for the damage it may do.^ And a municipality 
 will not be restrained from using an ordinary grate cover- 
 ing for a sewer on the ground that it becomes obstructed 
 and causes an accumulation of surface water." 
 
 § 144. Direct injury from sewage. — In the same man- 
 ner the corporation will be liable if by the construction 
 of drains or sewers the premises of individual owners 
 are flooded,^ or if sewage is deposited upon their lands, 
 
 Bond, 96 Ind. 236; Bloom v. San 
 Francisco, 64 Cal. 503; Manning v. 
 Lowell, 130 Mass. 21 (i88o); Weed 
 V. Greenwich, 45 Conn. 170; Brayton 
 V. Fall River, 113 Mass. 218; New 
 Albany v. Ray, 29 N. E. Rep. 611 ; 
 Burton v. Chattanooga, 7 Lea (Tenn.) 
 
 739 (1881); Smith V. Atlanta, 75 Ga. 
 no (1885); Pearson v. Zable, 78 Ky. 
 170; Phinizy V. Augusta, 47 Ga. 260 
 (1872); Blakely v. Devine, 36 Minn. 
 S3 (1886); Alden v. Minneapolis, 24 
 Minn. 254 (1877); Am v. Kansas City, 
 14 Fed. Rep. 236 (1882). 
 
 pelli, 4 Co). 25 ; Atchison v. Challis, 
 9 Kas. 603. 
 
 ' Bronson v. Wallingford, 54 Conn. 
 513 (1887). In Kennison v. Beverly, 
 146 Mass. 467 (1888), it was held that 
 there was no liability for injury occa- 
 sioned by the percolation of surface 
 water through an underground drain. 
 See infra, § 1 56. 
 
 ^ Paine v. Village of Delhi, n6 N. Y. 
 224 (1889), Haight, J., says : " Under 
 these circumstances, it appears to us 
 that the trial court properly held that 
 the village authorities should not be 
 restrained from maintaining the grate. 
 It is possible that some other device 
 might be arranged so that the water 
 would enter the sewer from the curb 
 under the sidewalk, instead of from 
 the bottom of the gutter ; but, in that 
 case, if there was no grate maintained, 
 the leaves and other material would 
 be carried directly into the sewer, and 
 might serve to dam up and clog the 
 
 flow of the water, and thus cause the 
 same difficulty complained of. The 
 grate is the device in general use in 
 our principal cities and villages to 
 prevent sticks, leaves, and other ma- 
 terial from entering the sewers, and 
 we are not prepared to hold that it 
 should be disapproved of and re- 
 moved. Some allowance must be 
 made for the judgment and discre- 
 tion of the municipal officers." 
 
 ' Frostburg v. Dufty, 70 Md. 47 
 (1889); Frostburg v. Hitchins, Id. 
 56; Sullivan v. Phillips, no Ind. 320, 
 9 W. Rep. 50; Reid v. Atlanta, 73 
 Ga. 523 (1884); Hans v. Bethlehem 
 Borough, 134 Pa. 12 (1890); Stanch- 
 field V. Newton, 142 Mass. no (1886); 
 Anderson v. Wilmington, 19 At). 
 Rep. 509 (1889); Powers v. Council 
 Bluffs, 50 la. 197 (1878); Ashley v. 
 Port Huron, 35 Mich. 296 (1877); 
 Fosterv. St. Louis, 71 Mo. 157 ('879); 
 Aurora v. Love, 93 111. 521 ; Weg- 
 
§ 144 
 
 NEGLIGENCE IN PUBLIC WORK. 
 
 273 
 
 although this results from the plan followed.* And also 
 damages may be recovered from it for the pollution of a 
 
 mann v. Jefferson, 61 Mp. 55 ; Imler 
 V. Springfield, 55 Mo. 119; Ruck v. 
 Williams, 3 H. & N. 308 ; Allen v. 
 Hayward, 7 Q. B. 960. But if the 
 flooding is due to unusual storms 
 there will be no liability. Denver v. 
 Capelli, 4 Col. 25 (1878). See Denver 
 V. Dunsmore, 7 Col. 328 (1884); Smith 
 V. New York, 66 N. Y. 295, 23 Am. 
 Rep. 53. And where a person con- 
 nected with a public sewer, without 
 the proper authority, and his premises 
 were flooded, it was held that he was 
 a mere trespasser, and that the city 
 had violated no duty due to him. 
 Ranlett v. Lowell, 126 Mass. 431 
 
 (1879)- 
 
 And in Buckley v. City of New 
 Bedford, 29 N. E. Rep. 201 (1891), 
 where a person whose premises were 
 below the grade of a sewer connected 
 with it and his lands were flooded, 
 Holmes, J., said : " This action is not 
 brought for misrepresentation, or for 
 monetary damage caused by the 
 plaintiff's doing what he was led or 
 had a right reasonably to suppose that 
 he might do with safety ; it is brought 
 for a continuing nuisance, on the foot- 
 ing of a right of property which is in- 
 fringed. The plaintiff's right of prop- 
 erty, if it be one, is not an absolute 
 right to make a hole at a certain 
 height in the sewer, or to connect a 
 pipe having a mouth at a certain 
 height with the sewer, and to require 
 the city thereafter to see at its peril 
 that he does not suffer by the open- 
 ing. His right is simply to connect a 
 pipe having a mouth at such height 
 as will be safe under the existing 
 system. If he connects one having a 
 tnouth lower than that, he maintains 
 it at his own risk, after experience 
 has shown the danger. 
 18 
 
 " It will be understood that we are 
 not speaking of a case where there is 
 negligence in the construction or 
 maintenance of a sewer after the plan 
 has been settled, as in Child v. Bos- 
 ton, Bates v. Inhabitants of West- 
 borough, and that class of cases. See 
 City of Ft. Wayne v. Coombs, 107 
 Ind. 75, 83, 7 N. E. Rep. 743; 
 Buchanan v. City of Duluth (Minn.), 
 42 N. W. Rep. 204. Also we have 
 no occasion to consider what would 
 be the law in the present case if the 
 ordinance of New Bedford had pur- 
 ported to require the plaintiff to con- 
 nect his drain with the sewer. Barry 
 v. Lowell, 8 Allen, 127, 128." 
 
 ' In Boston Belting Co. v. Boston, 
 149 Mass. 44 (1889), Morton, C. J., 
 says : " Where a city or town is au- 
 thorized by the legislature to make a 
 public improvement which must re- 
 sult in injury to the property of 
 citizens, and the statute makes pro- 
 vision for ascertaining the damage 
 for such injury under special proceed- 
 ings, the remedy thus provided is ex- 
 clusive of all others, and the citizen 
 cannot maintain an action at law for 
 any injury which is within the scope 
 of the remedy provided by the statute. 
 But if injury is done which is not the 
 necessary result of the public work 
 authorized by the legislature, but is 
 caused by the unskillful and negligent 
 manner in which the work is done, 
 the person injured may maintain an 
 action at law for such injury. These 
 principles are recognized in many 
 cases of which it is necessary to cite 
 only a few. Perry v. Worcester, 6 
 Gray 544 ; Washburn & Moen Manuf. 
 Co. v. Worcester, 116 Mass. 458; 
 Morse v. Worcester, 139 Mass. 389. 
 
 " Applying these rules to the case 
 
274 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 1 44 
 
 Stream by sewage.^ And if it constructs a sewer of such 
 a character that it is not sufficiently large to answer the 
 
 at bar, we are of opinion that the city 
 is liable in this action for the injury 
 caused by its delay in providing a 
 sufficient outlet into the sea to carry 
 off" the water which, by its work upon 
 the upper part of the stream, had been 
 increased in volume beyond its natural 
 flow. The referees have found that 
 there are a number of streets which 
 cross the stream above the plaintiffs 
 works ; that before the city entered 
 upon the work there were small cul- 
 verts under the streets ; that the 
 streets acted as dams, holding back 
 the water in wet seasons ; that the 
 city enlarged the culverts so as to 
 permit the water to flow down in ex- 
 cessive quantities, and made no pro- 
 vision to enlarge the outlet, or to keep 
 the lower part of the stream unob- 
 structed, so as to permit the excessive 
 flow of the water to escape into the 
 sea. This was a fault in the manner 
 of performing the work authorized by 
 the legislature. A man of reasonable 
 foresight and prudence would not 
 begin such work by altering the 
 upper part of the stream so as to 
 enlarge the flow of the water beyond 
 the capacity of its mouth, without 
 first enlarging its outlet so as to be 
 sufficient for the increased flow. The 
 referees were justified in the finding 
 that this was negligence which made 
 the city liable in this action. 
 
 " The defendant contends that the 
 city is not liable for this or any other 
 damage, because the fault, if any, was 
 the fault of the plan of improvement 
 adopted, and relies upon Child v. 
 Boston, 4 Allen 51, and several simi- 
 lar cases, which hold that a city is 
 not liable for any defect in the plan 
 or system of sewerage built by order 
 of the mayor and aldermen. But 
 
 these cases go upon the ground that 
 the mayor and aldermen in laying 
 out sewers act as an independent 
 board of public officers, and that the 
 city has no control over, and no 
 responsibility for, the plan or system 
 adopted; but they admit that it is 
 responsible for any negligence in the 
 performance of its duty properly to 
 construct and maintain the sewers. 
 These reasons for exempting the city 
 from responsibility do not exist in the 
 case at bar, and the cases have no 
 application." 
 
 See also Lehn v. San Francisco, 66 
 Cal. 76 (1884); Bloom v. San Fran- 
 cisco, 64 Cal. 503 (1884); Ft. Wayne 
 V. Coombs, 107 Ind. 75, 5 W. Rep. 
 233 ; Stoddart v. Saratoga Springs, 
 127 N. Y. 261, 27 N. E. Rep. 1033 
 (1891); Franklin Wharf Co. v. Port- 
 land, 67 Me. 46, 24 Am. Rep. i (1877); 
 Nashville v. Comar, 88 Tenn. 415 
 (1889); Merrifield v. Worcester, no 
 Mass. 216 ; Haskell v. New Bedford, 
 108 Mass. 208 (1871); Chalkley v. 
 Richmond, 14 S. E. Rep. 339; Att- 
 wood v. Bangor, 83 Me. 582, 22 Atl. 
 Rep. 466. But see Darling v. Bangor, 
 68 Me. 108 (1878); Cumberland v. 
 Willison, 50 Md. 138; Brownlow v. 
 Metrop. Board of Works, 13 C. B. N. 
 S. 768. 
 
 ' Chapman v. Rochester, 1 10 N. Y, 
 273 (1888) ; Moore v. Worcester, 
 139 Mass. 389 (1885); Edmonson v, 
 Moberly (Mo.), 28 Am. & Eng. C. C. 
 345 (1889); Baltimore & Ohio Rail- 
 road Co. V. First Baptist Church, 108 
 U. S. 317, 28 Am. & Eng. C. C. 35' ! 
 Inman v. Tripp, 1 1 R. I. 520 ; Hooker 
 V. Rochester, 37 Hun 181 ; Cone v. 
 Hartford, 28 Conn. 363; Gould v. 
 Rochester, 105 N. Y. 46 (1887); 
 Pettigrew v. Evansville, 25 Wis. 223; 
 
§145 
 
 NEGLIGENCE IN PUBLIC WORK. 
 
 275 
 
 purposes for which it was intended, it is liable for in- 
 juries occasioned by a back flow of water or sewage upon 
 private property.^ And a municipality will be responsi- 
 ble for any special damage occasioned by its negligence 
 in the work of constructing sewers.* 
 
 § 145. Liability if unsafe work results from plan. — And 
 again, a municipal corporation is not justified in carrying 
 into execution a plan inherently unsafe, and in leaving its 
 work in a condition dangerous to the public. It is no 
 hardship to require that the plans of a municipal corpora- 
 tion which are put into effect shall always be reasonably 
 safe, for no work should be done by such a body under a 
 plan selected without regard to public safety. The duty 
 of the corporation is to exercise reasonable care to select 
 a plan that shall be safe ; and if it does not do this, it vio- 
 lates its obligation to exercise care not to injure others.* 
 
 Pumpelly v. Green Bay, etc. Co., 15 
 Wall. 166 ; Atty.-Gen. v. Luton Local 
 Board, 2 Jur. N. S. 180 ; Atty.-Gen. v. 
 Birmingham, 4 Kay & J. 528 ; Man- 
 chester, Sheffield, etc. R. Co. v. Work- 
 sop Local Board, 23 Beav. 198 ; Ray on 
 Neg. of Imposed Duties, pp. 291, 292. 
 
 ' See Bates v. Westborough, 1 5 1 
 Mass. 174 (1890) ; Semple v. Vicks- 
 burg, 62 Miss. 63, 52 Am. Rep. 
 181 (1884); Hitchins v. Frostburg, 
 68 Md. 100, 20 Am. & Eng. C. C. 
 400 (1887); Markle v. Berwick (Pa.), 
 21 At). Rep. looi (1891). 
 
 '' See Stock v. Boston, 149 Mass. 
 410 (1889); Hildreth v. Lowell, 77 
 Mass. 345 (1858); Emory v. Lowell, 
 104 Mass. 13 ; Murphy v. Lowell, 124 
 Mass. 564 (1878); Merrifield v. Wor- 
 cester, 1 10 Mass. 216 (1872); Thurston 
 V. St. Joseph, 51 Mo. 510 (1873); 
 Rochester White Lead Co. v. Roch- 
 ester, 3 N. Y. 463, 52 Am. Dec. 316 
 (1850); Barton v. Syracuse, 36 N. Y. 
 54 ; Kranz v. Baltimore, 64 Md. 491 
 
 (1885); Detroit v. Corey, 9 Mich. 165 
 (l86i) ; Montgomery v. Gilmer, 35 
 Ala. 116 (1858); Savannah v. Spears, 
 66 Ga. 304 (1881); Flori v. St. Louis, 
 69 Mo. 341 ; Rigney v. Chicago, 102 
 111. 64; Bloomington v. Murnin, 36 
 111. App. 647 (1889). 
 
 " In North Vernon v. Voegler, 103 
 Ind. 314, 13 Am. & Eng. C. C. 434 
 (1885), Elliott, J., says: . ... "We 
 have many cases, extending from City 
 of Indianapolis v. Huffer, 30 Ind. 235, 
 down to City of Crawfordsville v. 
 Bond, 96 Ind. 236, holding that for 
 negligence in devising a plan as well 
 as for negligence in executing it, the 
 municipal corporation is liable. This 
 was in effect the decision in the case 
 appealed to this court by the appel- 
 lant, involving the sufficiency of just 
 such an answer as that now before us. 
 City of North Vernon v. Voegler, 89 
 Ind. 77. The question was fully con- 
 sidered, and the authorities cited in 
 the cases of City of Evansville v.. 
 
276 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § I45 
 
 The authorities are not at one upon this question, how- 
 ever, and in New York some cases in the Court of Ap- 
 peals have held that where defects exist in the plan of a 
 public improvement, there is no liability for damages 
 
 Decker, 84 Ind. 325, 43 Am. R. 86 ; 
 Cummins v. City of Seymour, 79 Ind. 
 491, 41 Am. R. 618; Weis v. City of 
 Madison, 75 Ind. 241, 39 Am. R. 135 ; 
 City of Indianapolis v. Tate, 39 Ind. 
 282 ; and City of Indianapolis v. Law- 
 yer, 38 Ind. 348. 
 
 "The doctrine is not only sus- 
 tained by authority, but is sound in 
 principle. Suppose that the common 
 council of a city determine to build a 
 sewer, and cover it with reeds, can it 
 be possible that the corporation can 
 escape liability on the ground that the 
 common council erred in devising a 
 plan ? Or, to take such a case as City 
 of Indianapolis v. Huffer, supra, sup- 
 pose the common council undertake 
 to conduct a large volume of water 
 through a culvert capable of carrying 
 less than one-tenth of the water con- 
 ducted to it by the drains constructed 
 by the city, can responsibility be 
 evaded on the ground of an error ot 
 judgment ? Again, to take an illus- 
 tration from a somewhat different 
 class of cases, suppose the common 
 council to devise a plan for a bridge 
 that will require timber so slight as to 
 give way beneath the tread of a child, 
 can the city escape liability on the 
 ground that there was only an error 
 of judgment in devising the plan? 
 Illustrations might be indefinitely 
 multiplied, but it is unnecessary to 
 pursue the subject. The only rule 
 that has any solid support in principle 
 is, that for errors in judgment in de- 
 vising a plan there is no liability, but 
 there is liability where the lack of care 
 and skill in devising the plan is so 
 great as to constitute negligence. 
 
 "Our decisions have long and 
 steadily maintained that municipal 
 corporations are not responsible for 
 consequential injuries resulting from 
 the grading of streets where the work 
 is done in a careful and skillful man- 
 ner, but they have quite as steadily 
 maintained that where the work is done 
 in a negligent and unskillful manner, 
 the corporation is liable for injuries 
 resulting to adjacent property. City 
 of Kokomo V. Mahan, 100 Ind. 242, 
 see page 246 ; City of Crawfordsville 
 V. Bond, supra ; Town of Princeton 
 V. Gieske, 93 Ind. 102 ; Weis v. City 
 of Madison, 75 Ind. 241, S. C. 39 
 Am. R. 135 ; City of Evansville v. 
 Decker, supra, and authorities cited ; 
 Macy V. City of Indianapolis, 17 Ind. 
 267." 
 
 See also Hannibal v. Jordan (Mo.), 
 13 Am. & Eng. C. C. 466; Foster 
 v. St. Louis, 71 Mo. 157; McClure 
 v. Red Wing, 28 Minn. 186; Gould 
 v. Topeka, 32 Kas. 485, 49 Am. 
 Rep. 496; Wyandotte v. Gibson, 
 25 Kas. 236 (1 881) ; Defer v. De- 
 troit, 67 Mich. 346, 34 N. W. Rep. 680 
 (1887); Fleming v. Manchester, 44 L. 
 T. N. S. 517 ; Helena V. Montana, 29 
 Ark. 569; Stafford v. Oskaloosa, 64 
 la. 251. And in Welsh v. Rutland, 56 
 Vt. 228, 48 Am. Rep. 762, it is said : 
 " If a plan adopted for public works 
 must necessarily cause injury or peril 
 to private persons or property, though 
 executed with due care and skill, the 
 law regards the execution of such a 
 plan as negligence." See supra, 
 
 §92-: 
 
§145 
 
 NEGLIGENCE IN PUBLIC WORK. 
 
 277 
 
 occasioned by them.^ This view has been somewhat 
 modified by later decisions,^ and it seems probable that 
 
 ' Mills V. Brooklyn, 32 N. Y. 489. 
 
 In Urquhart v. Ogdensburg, 91 
 N. Y. 67 (1883), it was claimed that 
 a sidewalk was defective because of 
 its slope, which was established by 
 the common council. A nonsuit was 
 asked at the trial on the ground that 
 negligence could not be predicated 
 upon the plan or slope on which the 
 walk was built, for that was in the 
 discretion of the common council. 
 This was denied, and the court also 
 refused to charge that the defendant 
 could " not be held liable for any fault 
 in the plan of the work, and hence 
 was not liable for the steepness of the 
 slope or incline from the platform to 
 the curbstone." Upon appeal to the 
 Court of Appeals, it was held that the 
 trial court erred in denying the mo- 
 tion for a nonsuit, and also in refusing 
 to charge as requested. Miller, J., 
 saying : 
 
 " The rule is well settled that where 
 power is conferred on public officers 
 or a municipal corporation to make 
 improvements, such as streets, sewers, 
 etc., and keep them in repair, the duty 
 to make them is yaajz' judicial or dis- 
 cretionary, involving a determination 
 as to their necessity, requisite capac- 
 ity, location, etc., and for a failure to 
 exercise this power or an erroneous 
 estimate of the public needs, no civil 
 action can be maintained. But when 
 the discretion has been exercised, and 
 the street or improvement made, the 
 duty of keeping it in repair is minis- 
 terial, and for neglect to perform such 
 a duty an action by the party injured 
 will lie. Hines v. City of Lockport, 
 
 SO N. Y. 238 ; Mills v. City of Brook- 
 lyn, 32 Id. 489; Lansing v. Toolan, 
 37 Mich. 152; Marquette v. Cleary, 
 37 Id. 296 ; Darling v. Bangor, 38 Me. 
 112. 
 
 " Cooley, Ch. J., in reversing the 
 judgment in the Toolan case, says : 
 ' In planning public works a municipal 
 corporation must determine for itself 
 to what extent it will guard against 
 possible accidents. Courts and juries 
 are not to say it shall be punished in 
 damages for not giving to the public 
 more complete protection, for that 
 would be to take the administration 
 of municipal affairs out of the hands 
 to which it has been intrusted by law. 
 What the public have a right to re- 
 quire of them is that in the construc- 
 tion of their works, after the plans are 
 fixed upon, and in their management 
 afterward, due care shall be observed ; 
 but negligence is not to be predicated 
 of the plan itself.' .... 
 
 " In the case of Clemence v. The 
 City of Auburn, 66 N. Y. 334, the com- 
 mon council had directed the building 
 of the sidewalk, and one of its members 
 in constructing it made an alteration 
 from the original plan which was 
 entirely unauthorized. The slanting 
 stone which caused the accident in 
 that case, instead of being laid as 
 directed by the common council, was 
 laid contrary to its directions by an 
 alderman. The result was the injury 
 complained of. There is a wide dis- 
 tinction between that case and the 
 one at bar." 
 
 See also Saulsbury v. Ithaca, 94 
 N. Y. 27 (1883); Hines v. Lockport, 
 
 ' Seifert v. Brooklyn, loi N. Y. 136 
 (1886). 
 In this case, Ruger, Ch. J., says ; 
 
 . . . . " The immunity of a municipal 
 corporation from liability for damages, 
 occasioned to those for whose benefit 
 
278 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 145 
 
 the time will come when the language of some of the 
 opinions will have to be entirely repudiated, for it is 
 contrary to principle to allow a municipal corporation to 
 negligently create and maintain a dangerous public work. 
 
 50 N. Y. 236 ; Hubbell v. Yonkers, 35 
 Hun (N. Y.) 349 (1885). In this last 
 case it is noticeable that although 
 much prominence at the General 
 Term was given to the argument that 
 
 the defect related to the plan, in the 
 Court of Appeals the case was dis- 
 posed of on more satisfactory grounds; 
 see 104 N. y. 434 (1887). 
 
 an improvement is instituted by rea- 
 son of the insufficiency of the plan 
 adopted, to wholly relieve their wants, 
 or on account of a neglect of the mu- 
 nicipality to exercise its power in 
 making desired improvements and 
 other like circumstances, is quite 
 clearly established by the cases. The 
 liability in such cases has been gen- 
 erally, if not always, predicated upon 
 the duty which the corporation owed 
 its citizens to exercise the power con- 
 ferred upon it to build streets, sewers, 
 etc., for the convenience and benefit 
 of its property owners, and its exemp- 
 tion from liability was based upon the 
 limitations necessarily surrounding the 
 exercise of such power, and the judi- 
 cial character of the functions em- 
 ployed in performing the duty 
 
 " Municipal corporations have quite 
 invariably been held liable for dam- 
 ages occasioned by acts resulting in 
 the creation of public or private nui- 
 sances, or for an unlawful entry upon 
 the premises of another, whereby in- 
 jury to his property had been occa- 
 sioned. Baltimore & Potomac R.R. 
 Co. V, Fifth Baptist Church, 108 U. S. 
 317. This principle has been uni- 
 formly applied to the act of such cor- 
 porations in constructing streets, sew- 
 ers, drains, and gutters, whereby the 
 surface water of a large territory, 
 which did not naturally flow in that 
 direction, was gathered into a body 
 
 and thus precipitated upon the prem- 
 ises of an individual, occasioning dam- 
 age thereto. Byrnes v. City of Cohoes, 
 67 N. Y. 204 ; Bastable v. Syracuse, 
 8 Hun 587 ; also in 72 N. Y. 64 ; Noo- 
 nan v. City of Albany, 79 Id. 470, 
 475 ; Beach v. City of Elmira, 22 Hun 
 1 58 ; Field v. West Orange, 36 N. J. 
 Eq. n8, 120; s. C. on appeal, 29 Alb. 
 
 L. J. 397. 
 
 " We are also of the opinion that 
 the exercise of a judicial or discretion- 
 ary power by a municipal corporation, 
 which results in a direct and physical 
 injury to the property of an individual, 
 and which from its nature is liable to 
 be repeated and continuous, but is 
 remediable by a change of plan, or 
 the adoption of prudential measures, 
 renders the corporation liable for such 
 damages as occur in consequence of 
 its continuance of the original cause 
 after notice, and an omission to adopt 
 such remedial measures as experience 
 has shown to be necessary and proper. 
 Wood's Law of Nuisances, § 752. 
 While in the present case the corpora- 
 tion was under no original obligation 
 to the plaintiff or other citizens to 
 build a sewer at the time and in the 
 manner it did, yet, having exercised 
 the power to do so and thereby cre- 
 ated a private nuisance on his prem- 
 ises, it incurred a duty, having created 
 the necessity for its exercise, and hav- 
 ing the power to perform it, of adopt- 
 
§145 
 
 NEGLIGENCE IN PUBLIC WORK. 
 
 2/9 
 
 If reasonable care has been exercised to make the work 
 safe, the corporation is protected from responsibility; but 
 if such care has not been used, the liability for the inju- 
 ries which it occasions should attach to the municipality. 
 The question of safety is quite different from a question 
 relating to governmental discretion and governmental 
 power.* For the municipal corporation is not given 
 discretion to create dangerous works, but only to decide 
 
 ing and executing such measures as 
 should abate the nuisance and obviate 
 damage. Phinizy v. City of Augusta, 
 47 Ga. 260, 263; Byrnes v. City of 
 
 Cohoes, supra 
 
 " The exercise of the authority con- 
 ferred upon the commissioners of sew- 
 age and drainage did not require the 
 injury to the property of the citizens 
 of Brooklyn, which has been occa- 
 sioned by the inundation complained 
 of, and it was not the natural or nec- 
 essary result of a proper exercise of 
 their powers. Those injuries arose 
 solely from the defective manner in 
 which the authority was originally 
 exercised, and the continuance of the 
 wrong after notice of the injury occa- 
 sioned. In such cases corporations 
 have been uniformly held liable. Rad- 
 clifTs Exrs. v. Mayor, etc., supra. 
 Wood on Nuisances (§ 752) says : 
 'The rule being that no action lies 
 against an individual or corporation 
 for doing that which is authorized by 
 the legislature, so long as the author- 
 ity is properly exercised and not ex- 
 ceeded, but that liability does attach 
 where the authority is negligently or 
 improperly exercised, and where, by a 
 reasonable exercise of the power given 
 either by statute or the common law, 
 damages might be prevented, it is 
 held that a failure to exercise such 
 power is such negligence as charges 
 them with responsibility for conse- 
 
 quent damages.' ' As to the neces- 
 sity for a sewer or its location or the 
 system or plan of sewerage, the deci- 
 sion of the proper municipality is con- 
 clusive, because it is an exercise of a 
 discretion reposed in them by the 
 law, and consequently is not review- 
 able by the courts ; but if in the selec- 
 tion of a location it necessarily creates 
 a nuisance to public or private rights, 
 it is responsible therefor.' Citing 
 Franklin Wharf Co. v. Portland, 67 
 Me. 46 ; Haskell v. New Bedford, 108 
 Mass. 208, and many other cases. 
 Dillon on Municipal Corporations 
 (§ 105 1) lays down the rule where 
 the injury is occasioned by the plan 
 of the improvement, as distingfuished 
 from the mode of carrying the plan 
 into execution, that there is not ordi- 
 narily, if ever, any liability; but in 
 that case he says : ' There will be a 
 liability if the direct effect of the work, 
 particularly if it be a sewer or a drain, 
 is to collect an increased body of 
 water and to precipitate it on to the 
 adjoining private property to its in- 
 jury.' " 
 
 ' See for an interesting discussion 
 of the difference between the judicial 
 and ministerial duties of municipali- 
 ties in constructing sewers. Savannah 
 V. Spears, 66 Ga. 304 (1881). See 
 also Lynch v. New York, 76 N. Y. 
 60 (1879). 
 
28o MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § I46 
 
 what the public necessity and convenience require. 
 To entitle one, however, to recover for neglect in this 
 respect, it must always appear that special damage has 
 resulted from a breach of the duty to exercise care, and 
 it is not enough to show that greater benefits would have 
 come from more perfect work. 
 
 § 146. Grading to be done with care. — While munici- 
 pal corporations act in their judicial and governmental 
 capacity in grading the public streets, they are yet bound 
 in the performance of their work to exercise care not to 
 injure others. They should consider the public interests 
 upon the questions that come before them for decision as 
 governmental bodies, and if any individual suffers damage 
 because of their decision, or because of the lawful work 
 that they do, he has no remedy unless it be given him by 
 statute.^ But his rights must be respected by the mu- 
 
 ' Watson V. Kingston, 1 14 N.Y. 88, 
 28Am.&Eng.C.C.233(i889). In Wa- 
 ters V. Bay View, 61 Wis. 642 (1884), 
 it was said: "Municipal corpora- 
 tions have full power and discretion in 
 grading or filling up their streets, and 
 need make no provision for carrying off 
 the surface water of adjoining lands, or 
 against its back-flow upon such lands. 
 Lynch v. Mayor, 76 N. Y. 60. And 
 when it has made such provision by a 
 sewer or drain, it may discontinue or 
 abandon the same if such owners are 
 left in no worse condition than they 
 would have been if such sewer or 
 drain had never been made. Atchi- 
 son V. Challiss, 9 Kan. 603." See Mor- 
 ris V. Council Bluffs, 67 la. 343, 56 
 Am. Rep. 343 ; Freburg v. Daven- 
 port, 63 la. 119, 50 Am. Rep. 737 
 (1884); Derinzy v. Ottawa, 15 Ont. 
 Rep. 712; Atkinson v. Atlanta, 81 
 Ga. 625 (1888) ; Fuller V. Atlanta, 66 
 Ga. 80 (1880) ; Henderson v. Minne- 
 apolis, 32 Minn. 319 (1884) ; Alden v. 
 
 Minneapolis, 24 Minn. 254 ; Margar- 
 ity V. Wilmington, 5 Del. 530 ; Mayo 
 V. Springfield, 136 Mass. lo (1883) ; 
 Stewart v. Clinton, 79 Mo. 603 (1883); 
 Dillon on Munic. Corp., § 987 ; Smith 
 v. Washingfton, 20 How. 135 (1857) ; 
 Transportation Co. v. Chicago (U. S.), 
 99 U. S. 635 (1878) ; Cheever v. 
 Shedd, 13 Blatchf. 258 (1876) ; Sim- 
 mons V. Camden, 26 Ark. 276, 7 Am. 
 Rep. 620 (1870) ; Fellowes v. New 
 Haven, 44 Conn. 240, 26 Am. Rep. 
 447 (1876) ; Diamond Match Co. v. 
 New Haven, 55 Conn. 510, 6 N. E. 
 Rep. 174 (1888), here damages were 
 claimed because of a back-flow of 
 water after work by a corporation in 
 straightening a channel of a river, 
 but were not allowed, as proper care 
 had been used ; Dorman v. Jackson- 
 ville, 13 Fla. 538, 7 Am. Rep. 253; 
 Lee V. Minneapolis, 22 Minn. 13 
 (1875); Meares v. Wilmington, 9 Ired. 
 73 (N. C.) (1848). 
 
§146 
 
 NEGLIGENCE IN PUBLIC WORK. 
 
 281 
 
 nicipality, and if it trespasses upon his property/ or if he 
 is injured by its negligence in the doing of the work,^ or 
 by the negligent way in which the work is left,' he may 
 recover the damage he has suffered. 
 
 ' In Burford v. Grand Rapids, 53 
 Mich. 98 (1884), it is said: "So, 
 though a city is not liable for a con- 
 sequent diminution of the value of 
 adjacent property resulting from the 
 grading of a street — Pontiac v. Carter, 
 32 Mich. 164 — yet if, in the grading, 
 earth is thrown upon the lands of in- 
 dividuals, this is a trespass for which 
 the city must respond. Hendershott 
 V. Qttumwa, 46 la. 658, s. C. 26 Am. 
 Rep. 182. See Stack v. East St. 
 Louis, 85 111. 377, s. C. 28 Am. Rep. 
 619." See also O'Brien v. St. Paul, 
 25 Minn. 331 ; Pettigrew v. Evans- 
 ville, 25 Wis. 223 ; n. I, p. 280. 
 
 " City Council v. Townsend, 84 Ala. 
 478; Valparaiso v. Adams, 123 Ind. 
 250 (1889) ; Peters v. Fergus Falls, 
 35 Minn. 549 (1886) ; Keating v. Cin- 
 cinnati, 38 Ohio St. 141, 43 Am. Rep. 
 421 ; Gilmore v. DriscoU, 122 Mass. 
 199, 23 Am. Rep. 312 ; Quincey v. 
 Jones, 76 111. 232, 20 Am. Rep. 243 ; 
 Werth v. Springfield, 78 Mo. 107; 
 Martinsville v. Shirley, 84 Ind. 546. 
 
 ' In Nichols v. St. Paul, 44 Minn. 
 494 (1890), Collins, J., says : " This 
 was an action brought to recover 
 damages for the death of plaintift's 
 intestate, his son, aged three and a 
 half years at the time of his decease, 
 caused, it was claimed, by the negli- 
 gence of the defendant city. The 
 plaintiff had a verdict, and the appeal 
 is from an order refusing a new trial. 
 The boy was killed by the falling of 
 an embankment, situated upon private 
 property, in a sparsely settled portion 
 of the city. The street in front of 
 this property, or lot, had been previ- 
 ously graded by the public authorities, 
 
 by cutting through a slight elevation, 
 the embankment being, at the point 
 where a part of it fell, from six to 
 eight feet high ; at the bottom of the 
 bank, on the street line, and on grade 
 a sidewalk eight feet wide had been 
 constructed. After the street was 
 graded, several parties had under- 
 mined the bank by removing building 
 sand from its base, so that for some 
 weeks, at least, before the accident 
 there had projected over the excava- 
 tion made by the removal of the sand 
 quite a body of earth, principally top- 
 soil. It was this overhanging mass, 
 in which was the stump of a tree, that 
 gave way, and, falling, caught and 
 caused the death of the child 
 
 " The duty was upon the munici- 
 pality, when it graded the street in 
 front of this lot, to acquire the right 
 and to construct the slope thereon, 
 with reasonable and ordinary care, 
 and with reference to the fact that a 
 walk for pedestrians was to be laid at 
 its base. This was an obligation 
 which the city could not be permitted 
 to unnecessarily and unreasonably 
 disregard, thereby neglectfully endan- 
 gering the lives and limbs of such 
 persons as might be thereafter law- 
 fully upon the walk. Its undoubted 
 duty to the public was to so complete 
 and finish the grading that the sloping 
 bank in question would have been in 
 a reasonably and ordinarily safe con- 
 dition 
 
 " By its charter, the defendant was 
 granted the exclusive care, control, 
 and supervision of its streets and 
 sidewalics. In express terms the duty 
 was imposed to have and keep them 
 
282 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 147 
 
 § 147. Erecting public buildings. — Comparatively few 
 cases are reported where the negligence charged against a 
 municipality has arisen during the work of erecting a 
 building devoted to public purposes. It has been held, 
 however, in Rhode Island that such a corporate body was 
 liable for negligence occurring in the construction of a 
 court-house.^ But on the contrary, in Massachusetts it 
 was recently held that the city of Worcester was not 
 responsible for negligence in blasting for the construction 
 of a school-house, as the work was purely for the benefit 
 of the public.'' This decision, however, follows the 
 
 in a safe and passable condition for 
 public use and travel, — and this in- 
 cluded protection from falling objects, 
 as well as from defects or obstacles 
 under foot, — and ample means and 
 authority for properly performing this 
 duty were provided in the same in- 
 strument. By their verdict, the jurors 
 have declared that the city was un- 
 reasonably neglectful in this duty, and 
 that an injury resulted, for which it is 
 amenable. We discover no good rea- 
 son on the facts, as they appeared on 
 the trial, for interfering with the ver- 
 dict." See Vicksburg v. McLain, 67 
 Miss. 4, 6 So. Rep. 774 ; Wyandotte 
 v. Gibson, 25 Kas. 236 (1881); Vogel 
 V. New York, 92 N. Y. 10 (1883). 
 
 ' McCaughey V. Providence, 12 R. I. 
 449- 
 
 ^ Howard v. Worcester, 1 53 Mass. 
 426, 27 N. E. Rep. II, 12L. R. A. 160 
 (1891). In this caae C. Allen, J., 
 said : " The city contends that, even 
 assuming that Kenney was its servant 
 in such a sense that ordinarily it 
 might be responsible for his acts or 
 his negligence, it is nevertheless ex- 
 empt from responsibility to the plain- 
 tiff in the present case by reason of 
 the nature of the work which it was 
 carrying on — namely, the construction 
 of a school-house for public use. 
 
 " It was held in the familiar case of 
 Hill V. Boston, 122 Mass. 344, that a 
 city is not responsible in damages to 
 a child attending a public school in a 
 school-house provided by the city, 
 under the duty imposed upon it by 
 general laws, for an injury sustained 
 by the child by reason of the unsafe 
 condition of a staircase in the build- 
 ing. In Bigelow v. Randolph, 14 
 Gray 541, a similar doctrine was ap- 
 plied where a scholar received an in- 
 jury from a dangerous excavation in 
 the school-house yard. The doctrine 
 was reiterated in Sullivan v. Boston, 
 126 Mass. 540. It has also been ap- 
 plied to other public grounds, like 
 Boston Common. Oliver v. Wor- 
 cester, 1 02 Mass. 489 ; Steel v. Bos- 
 ton, 128 Mass. 583 ; Clark v. Waltham, 
 128 Mass. 567 ; Veale v. Boston, 135 
 Mass. 187. On the same principle, a 
 city was declared to be exempt from 
 responsibility for a personal injury 
 received in consequence of the de- 
 fective condition of a public hospital. 
 Benton v. Boston City Hospital, 140 
 Mass. 13. In other States a similar 
 rule of exemption has been adopted 
 in reference to school-house and 
 other public buildings maintained 
 solely for public use and service. 
 Wixon v. Newport, 13 R. I. 454> 
 
147 
 
 NEGLIGENCE IN PUBLIC WORK. 
 
 283 
 
 doctrine of Hill v. Boston, which does not express the pre- 
 vailing view of the liabilities of municipal corporations 
 for negligence. 
 
 In Wisconsin a city was held liable for negligence dur- 
 
 school-house ; Eastman v. Meredith, 
 36 N. H. 284, town-house ; Hamilton 
 Commissioners v. Mighels, 7 Ohio 
 St. 109, court-house; Freeholders of 
 Sussex V. Strader, 3 Harrison 108, 121, 
 dictum of Hornblower, d ]., as to 
 court-houses and jails. 
 
 " The principle on which this ex- 
 emption from responsibility rests is, 
 that, in the various instances referred 
 to, the building was erected or the 
 grounds were prepared solely for the 
 public use, and with a sole view to 
 the general benefit, and under the 
 requirement or authority of general 
 laws. In such cases, in the absence 
 of any statute which directly, or by 
 implication, gives a private remedy, 
 no action lies in favor of a person who 
 has received an injury in consequence 
 of a negligent or defective perform- 
 ance of the public service. 
 
 " The cases heretofore cited related 
 to injuries receivedafterthe completion 
 of the work. It makes no difference, 
 however, if the injury is caused by a 
 negligent act done in the direct per- 
 formance of the service. Hafford v. 
 New Bedford, i6 Gray 297 ; Fisher v. 
 Boston, 104 Mass. 87 ; Tindley v. 
 Salem, 137 Mass. 171 ; Lincoln v. 
 Boston, 148 Mass. 578. 
 
 " The plaintiff seeks to establish a 
 distinction on the ground that her in- 
 jury was received outside of the limits 
 of the public work; relying on an 
 expression in the judgment in Hill v. 
 Boston, above cited, at page 358, and 
 on the various decisions where cities 
 and towns have been held responsible 
 for injuries caused by or in the course 
 of the construction of roads and 
 bridges, by blasting rocks, setting 
 
 back water, etc. For example, Law- 
 rence v. Fairhaven, 5 Gray no; 
 Deane v. Randolph, 132 Mass. 475, 
 and Waldron v. Haverhill, 143 Mass. 
 582. These cases, however, rest on 
 grounds which take them out of the 
 general rule, and in the last resort it 
 must probably be considered that, 
 taking all the statutes together which 
 relate to the construction of roads 
 and bridges, it is to be inferred that 
 the legislature intended to recognize 
 the existence of a liability for the con- 
 sequences of negligence in the per- 
 formance of the work. 
 
 " In the present case the service in 
 which the city was engaged was 
 purely for the benefit of the public, 
 and we think the case falls within the 
 general rule which exonerates it from 
 responsibility for the consequences of 
 its servant's negligence. The servant 
 himself may be responsible ; the city 
 is exempt. See also Neff v. Wellesley, 
 148 Mass. 487; Curran v. Boston, 151 
 Mass. 505 ; Bates v. Westborough, 
 151 Mass. 174." 
 
 In Hallenbeck v. Winnebago Co., 
 95 III. 148, 35 Am. Rep. 151, it was 
 held that a county was not liable for 
 negligence occurring- while a court- 
 house was in process of erection ; but 
 the case was decided on the ground 
 that the county as such was not re- 
 sponsible for the injury. See Hoard 
 V. Des Moines, 62 la. 326 (1883). 
 
 In Treadwell v. New York, I Daly 
 123, it was held that the city of New 
 York was not liable for the negligence 
 of a servant of a contractor who was 
 erecting a public school building. But 
 see supra, § 34. 
 
284 MUNICIPAL DUTIKS — GOVERNMENTAL AFFAIRS. § 148 
 
 ing the construction of a cistern for fire purposes,^ and, 
 in some instances, municipalities have been made re- 
 sponsible for maintaining defective public buildings.* 
 
 § 148. Other instances of negligence in public work.— 
 Many other instances might be cited to show how ex- 
 tensively public corporations have been held responsible 
 for their negligence during the prosecution of work. 
 And some of these are given in the note below.^ The 
 
 ' Mulcairns v. Janesville, 29 N. W. 
 Rep. 565 (1886), Orton, J., says here : 
 " The point made by the learned coun- 
 sel of the appellant that the city is not 
 liable because it was in the perform- 
 ance of a public duty in which the city, 
 as a municipal corporation, had no 
 pecuniary interest, and the injury was 
 occasioned by the act or omission of 
 its officers or agents, may as well be 
 disposed of here, because it arises as 
 well upon the pleadings. James 
 Shearer was not one of the public 
 agents or officers of the city, but spe- 
 cially employed to superintend this 
 particular work for the city. Such is 
 the effect of the answer. 
 
 "The case cited, and the first one 
 on the question in this State, of Hayes 
 V. City of Oshkosh, 33 Wis. 314, goes 
 upon the doctrine generally recog- 
 nized that when the agents, acting 
 for the city, are not in the employ- 
 ment of the city, but act rather as pub- 
 lic officers, such as the fire depart- 
 ment, provided for by law, and the city 
 does nothing more than appoint its 
 officers, such persons perform duties 
 fixed by law, and not special services 
 contracted to be performed under em- 
 ployment of the city. The distinction 
 between the two cases is very wide 
 and quite apparent. If the city could 
 not be held liable in such a case, it 
 never could in any ,; for it is a com- 
 mon case of special employment for 
 
 the performance of special services for 
 and on behalf of the city. It was the 
 legal duty of the city to construct cis- 
 terns for fire purposes, and it was en- 
 gaged in the attempted performance 
 of tliis duty through its own private 
 agencies, and not through the fire de- 
 partment or its officers or other ofii- 
 cers of the city, whose duty it was to 
 perform such work. 
 
 " The case of Spelman v. City of 
 Portage, 41 Wis. 144, which is clearly 
 in point, most clearly points out these 
 distinctions." 
 
 » /«//•«,§ 157. 
 
 ' Aldworth v. Lynn, 153 Mass. 53 
 (1891), flooding property by the erec- 
 tion of a dam ; Alexander v. Big Rap- 
 ids, 76 Mich. 282 (1889), tearing up 
 crosswalk and leaving excavation 
 open; Brown v. Atlanta, 66 Ga. 71 
 (1880), discharging water from res- 
 ervoir negligently ; Perkins v. Law- 
 rence, 136 Mass. 30s (1884), negli- 
 gently laying water-pipes ; Gas Light 
 and Coke Co. v. Vestry of St. Mary 
 Abbotts, Kensington, L. R. 15 Q. B. 
 D. I, using street-roller of sufficient 
 weight to injure gas-pipes already 
 placed; Cox v. Paddington Vestry, 
 64 L.T. 566 (1891), opening highway 
 to lay sewers and uncovering old wa- 
 ter-pipe which was not protected. 
 Compare Rockland Water Co. v. 
 Rockland, 83 Me. 267, 22 Atl. Rep. 
 166 (1891); Doherty v. Braintree, 148 
 
§148 
 
 NEGLIGENCE IN PUBLIC WORK, 
 
 285 
 
 liability in all cases is based upon a breach of duty by the 
 corporation doing the work, and whether this is a city, a 
 town, a village, or a county, if it has been guilty of a 
 breach of the duty to exercise care, it should be respon- 
 sible for the damages thereby occasioned. And if a mu- 
 nicipality can be held responsible in damages when it 
 commits a negligent act of misfeasance in carrying for- 
 ward its governmental work,^ no reason is seen why it 
 
 Mass. 495 (1889), negligently making 
 road or bridge. See supra, §113. 
 See also Welter v. St. Paul, 40 Minn. 
 460 ( 1 889) ; Wright v. Wilmington, 92 
 N. C. 156 (1885); Diamond Match 
 Co. V. New Haven, 55 Conn. 510 
 (1888); Weed V. Greenwich, 45. Conn. 
 170; Mostry v. Danbury, 45 Conn. 
 550; Cummins v. Seymour, 79 Ind. 
 491 (1881); Vincennes V. Richards, 23 
 Ind. 381 (1864); Woodcock v. Calais, 
 66 Me. 234 (1877). Compare Small 
 V. Danville, 51 Me. 359 (1864), and 
 McCutcheon v. Homer, 43 Mich. 483, 
 38 Am. Rep. 212 (1880); Hannan v. 
 St. Louis County, 62 Mo. 313 (1876); 
 McDonough v. Virginia City, 6 Nev. 
 90 (1870); Buffalo, etc. Turnpike Co. 
 V. Buffalo, 58 N. Y. 639 ; Lee v. Sandy 
 Hill, 40 N. Y. 442; New York v. 
 Bailey, 2 Denio (N. Y.) 433 (1845); 
 Van Pelt v. Davenport, 42 la. 308 
 (1875); Perry v. Worcester, 72 Mass. 
 544(1850); Irontonv. Kelley, 38 Ohio 
 St. 50. 
 
 In Joliet V. Verley, 35 111. 58 (1864), 
 Mr. Justice Beckwith said : " Cities 
 have no right to set man-traps 
 throughout their limits and excuse 
 themselves from liability on the 
 ground that the localities are such 
 that they could not render the places 
 where they were set safe and secure. 
 If they cannot construct works so that 
 they will be safe, they can let them 
 alone. '' 
 
 ' In Miles v. City of Worcester, 28 
 N. E. Rep. 676, 13 L. R. A. 841 
 (1891), Allen, J., says in reference to 
 a wall on school property : " The de- 
 fendant suggests that it is not liable, 
 because the wall was built and main- 
 tained solely for the public use, and 
 with the sole view to the general 
 benefit, and under the requirement of 
 general laws ; and that the case can- 
 not be distinguished in principle from 
 the line of cases beginning with Hill 
 v. Boston, 122 Mass. 344, and ending 
 with Howard v. Worcester, 153 Mass. 
 426, 27 N. E. Rep. II. We are not 
 aware, however, that it has ever been 
 held that a private nuisance to prop- 
 erty can be justified or excused on that 
 ground. The verdict shows a con- 
 tinuous occupation of the plaintifTs 
 land by the encroachment of the de- 
 fendant's wall." 
 
 In Tindley v. Salem, 137 Mass. 171, 
 50 Am. Rep. 289, the cases in Mass- 
 achusetts are thus classified by Allen, 
 J., who says : " It may not be easy to 
 reconcile all of the dicta, and perhaps 
 not all of the decisions, in actions in 
 which it has been sought to hold 
 cities or towns responsible for in- 
 juries to persons or property sustained 
 through negligence or wrong-doing 
 on the part of the cities or towns 
 themselves, or of persons alleged to 
 have acted as their agents or servants. 
 Many of the cases, however, can be 
 
286 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § I48 
 
 cannot be made answerable in the same way for every 
 breach of the duty to exercise care in respect to this work. 
 If the corporation can be sued in either case in regard to 
 undertakings of this character, a consistent rule would 
 permit it to be sued in both cases. And if the remedy 
 is not thus allowed, the reason would seem to lie in the 
 character of the negligent act, rather than in the nature 
 of the work undertaken. 
 
 distributed into classes which have 
 now come to be recognized, although 
 in some instances the principles upon 
 which the decisions ought ultimate- 
 ly to rest may still be somewhat 
 shadowy. There are certain cases 
 where the act of the city or town has 
 of itself a natural and direct tendency 
 to injure the property of another quite 
 irrespectively of any negligence in the 
 performance of it. In such cases, if 
 the act is within the authority of the 
 city or town, it is responsible. Pro- 
 prietors of Locks and Canals v. Lowell, 
 7 Gray 223 ; Hildreth v. Lowell, 1 1 
 Gray 345 ; Haskell v. New Bedford, 
 108 Mass. 208 ; otherwise not ; Leach 
 V. Newton, 134 Mass. 476 ; Gushing 
 V. Bedford, 125 Mass. 526. 
 
 " There are other cases where it 
 has been held that it is the duty of a 
 city or town in building a highway or 
 bridge across a natural stream of 
 water to make and maintain a suitable 
 provision for the free passage of the 
 water so that it shall not be set back ; 
 and that the city or town is re- 
 sponsible for any failure in the per- 
 formance of this duty ; and as such 
 failure is usually through negligence, 
 the remedy is usually by an action at 
 law. Lawrence v. Fairhaven, 5 Gray 
 116, 119, 120; Perry v. Worcester, 6 
 Gray 544 ; Parker v. Lowell, 1 1 Gray 
 353 ; Wheeler v. Worcester, 10 Allen 
 591- / 
 
 " There are other cases where a 
 city or town has undertaken to build 
 and maintain particular works, as for 
 example, sewers, water-works, and 
 gas-works, in part for the general 
 benefit, and in part for the benefit of 
 such individuals as may be able to 
 use them advantageously, and where 
 the expense is defrayed in the first 
 instance either wholly or partly by 
 assessments upon the estates im- 
 mediately benefited, or where a 
 charge is made by way of toll or 
 rent, to those who avail themselves 
 of the benefit of the works. In such 
 cases the work is not undertaken 
 purely as a matter of common public 
 convenience and service for the bene- 
 fit of all alike, but the city or town 
 acts as an agency to carry on an 
 enterprise partly commercial in its 
 character, for the purpose of furnish- 
 ing conveniences and benefits to such 
 as pay for them. The element of a 
 consideration comes in, and in such 
 cases it is usually held that a liability 
 exists for an injury to an individual 
 through negligence in building or 
 maintaining the works. Child v. Bos- 
 ton, 4 Allen 41 ; Oliver v. Worcester, 
 102 Mass. 500 ; Emery v. Lowell, 104 
 Mass. 13; Merrifield v. Worcester, 
 no Ma.ss. 216; Murphy v. Lowell^ 
 124 Mass. 564." .... 
 
CHAPTER XVII. 
 
 NEGLIGENCE AS OWNERS OR MANAGERS OF PUBLIC 
 PROPERTY. 
 
 § 149. Principal question for discussion. 
 
 150. Position taken on question. 
 
 151. Leading Englisii authorities. 
 
 1 52. Particular authorities applicable to question. 
 
 1 53. Neglect to repair drains and sewers. 
 
 1 54. Distinction between neglect of sewers and neglect of highways. 
 
 155. Control by corporation essential. 
 
 1 56. Examination to be made. 
 
 157. Duty as owner of public buildings. 
 
 158. Authorities holding municipalities liable for defects in public 
 
 buildings. 
 
 159. Defects in county buildings. 
 
 160. Duty as owner of the public property. 
 
 § 149. Principal question for discussion. — In a previous 
 chapter we have seen that municipal corporations are by 
 general consent held responsible for their negligence in 
 the care and management of property held for remunera- 
 tive purposes.^ The same rule is not so generally applied 
 to cases where the negligence of the corporation concerns 
 property held for the public good only, and from which 
 no income is derived, and whether liability should attach 
 to the corporation in such cases is a question about which 
 the authorities are conflicting. And it is this question 
 that we are now to consider. 
 
 § 150. Position taken on question.— The obligation to 
 exercise care does not arise between individuals because 
 one pays money to another and is therefore entitled to its 
 
 ' Supra, Chap. V., p. 68. 
 
288 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §151 
 
 exercise. It springs, as has been said, from the right of 
 personal safety, and is wholly removed from the ques- 
 tion of pecuniary profit. So between corporations, 
 whether public or private, and individuals, the duty is 
 not dependent on the payment of money. It comes into 
 existence from the same right of personal safety. And 
 it is not consistent with principle to hold that a duty ex- 
 ists to exercise care in respect to remunerative public 
 property, but that no such obligation arises in respect to 
 public property from which no income is derived. 
 
 Moreover, the weight of authority does not justify a 
 distinction of this character. And an examination of the 
 cases upon this question will sustain the conclusion that 
 municipal corporations are responsible in damages for all 
 injuries occasioned by their negligence in the manage- 
 ment or care of public property, irrespective of the ques- 
 tion whether an income is derived from it. 
 
 § 151. Leading English authorities. — Several English 
 cases are of great importance upon this question, and 
 strongly confirm the view of the law just expressed. In 
 the case of Lyme Regis v. Henley,* the sea-walls that 
 
 ' In Lyme Regis v. Henley, 3 Barn. " With respect to the first, we have 
 & Ad. 77 (1832), which was an ac- no doubt but that a sufficient obliga- 
 tion brought to recover for the dam- tion is disclosed We think, 
 
 age occasioned by the neglect of a looking at the whole instrument, that 
 borough to repair sea-walls, Lord the things granted were the consid- 
 Tenterden, C. J., says : " There are eration for the repairing of the build- 
 two questions in this case : first, ings, banks, sea-shores, etc., and that 
 Whether the declaration shows any the corporation, by accepting the let- 
 legal obligation on the plaintiffs in ters-patent, bound themselves to do 
 error to repair the buildings, banks, those repairs. 
 
 sea-shores, and mounds, for the non- . . . . " This point, respecting the 
 
 repair of which the action is brought ; obligation on the plaintiffs in error to 
 
 and secondly, if it do, Whether it be repair, was not much disputed by 
 
 competent to the defendant in error, their counsel. It was argued rather 
 
 a private individual and a stranger, to that the grant from the crown could 
 
 sue them for their default in respect not give to a third person, a stranger, 
 
 of the damage which he states him^ aright of action, and that the remedy 
 
 self to have sustained. lay solely with the king, either by seiz- 
 
§151 NEGLECT IN MANAGING PUBLIC PROPERTY. 289 
 
 were out of repair constituted a part of the property of 
 the corporation which it was obliged by its charter to 
 keep in repair. But no income was derived from this 
 property, and the individual's remedy was not dependent 
 upon the fact of his paying for protection. In Mersey 
 Docks Trustees v. Gibbs/ compensation had been 
 
 ure for non-performance of the condi- 
 tion, or by information at the suit of the 
 Attorney-General.or under the statute, 
 43 Eliz. c. 4. But we think the obliga- 
 tion to repair the banks and sea-shores 
 is one which concerns the public, in 
 consequence of which an indictment 
 might have been maintained against 
 the plaintiffs in error for their general 
 default; from whence it follows that 
 an action on the case will lie against 
 them for a direct and particular dam- 
 age sustained by an individual, as in 
 the ordinary case of nuisance in a 
 highway by a stranger digging a 
 trench, etc., or by the act or default 
 of a person bound to repair ratione 
 tenura. An indictment may be sus- 
 tained for the general injury to the 
 public, and an action on the case for 
 a special and particular injury to an 
 individual. Pain v. Partridge, Carth. 
 191, Com. Dig. ' Action upon the 
 Case for Negligence ' (A) 3. In the 
 Year Book, 12 Hen. 7, fo. 18, it is laid 
 down by Fineux, speaking of suit at a 
 court leet, that ' it is not against rea- 
 son that one man should hold of an- 
 other to do service for the profit of a 
 stranger, as one may hold to make and 
 repair a bridge or to guard and repair 
 a highway. In these cases the ser- 
 vices are for \^& profit of all people ; 
 and so it is also if one holds to keep a 
 beacon at his costs and charges, for 
 this is to guard the country in time of 
 war when enemies come.' In the 
 present instance it cannot be said to 
 be of less common concern that the 
 19 
 
 sea should be kept out and prevented 
 by adequate banks and mounds from 
 overwhelming the land. It appears 
 from many instances which may be 
 put, that where a liability exists to dis- 
 charge an obligation which concerns 
 the public, the common law will en- 
 force the obligation by the usual rem- 
 edies, although the liability may not 
 have existed from time immemorial." 
 Affi'g Henley v. Lyme Regis, 5 Bing. 
 91 (1828). 
 
 ' In Mersey Docks v. Gibbs, L. R, 
 I H. L. 93, II H. L. Cas. 686 (1866), 
 Mr. Justice Blackburn says : " We 
 have gone through these enactments, 
 and we think your lordships will 
 hardly be inclined to dispose of this 
 important case on any of the special 
 provisions peculiar to these acts. As. 
 we have already intimated, in our 
 opinion the proper rule of construc- 
 tion of such statutes is that, in the 
 absence of something to show a con- 
 trary intention, the legislature intends 
 that the body, the creature of the 
 statute, shall have the same duties, 
 and that its funds shall be rendered 
 subject to the same liabilities as the 
 general law would impose on a private 
 person doing the same things. This 
 rule of construction was not admitted 
 by the trustees. They did not rest 
 their case exclusively, or even mainly, 
 on any special provisions peculiar to 
 their own private legislation, but upon 
 broader grounds, which, if we do not 
 mistake them, were in effect two. 
 
 "They said that by the general 
 
290 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §151 
 
 paid, but, from the opinions in the case, it appears 
 that the fact that this compensation was not for the use 
 
 law of this country, bodies such as the 
 present are trustees for public pur- 
 poses, and that being- such, they are 
 not in their corporate capacity liable 
 to make compensation for damages 
 sustained by individuals from the neg- 
 lect of their servants and agents to 
 perform the duties imposed on the 
 corporation, or, at all events, that the 
 duty of such corporation was limited 
 to that of exercising due care in the 
 choice of their officers, and that if 
 they had properly selected their offi- 
 cers, any evil which ensued must be 
 the fault of the officer, and that re- 
 dress for it must be sought against 
 him alone. 
 
 " A g^eat many cases were cited at 
 your Lordships' bar as supporting this 
 position, many of which are really not 
 applicable to such a case as the pres- 
 ent. Lane v. Cotton, i Ld. Raym. 
 646, and Whitfield v. Le Despencer, 
 Cowp. 754 (the cases of the Post- 
 master-General), and Nicholson v. 
 Mounsey, 1 5 East 384 (the case of the 
 captain of the man-of-war), are au- 
 thorities that where a person is a 
 public officer in the sense that he is a 
 servant of the government, and as 
 such has the management of some 
 branch of the government business, 
 he is not responsible for any neg- 
 ligence or default of those in the same 
 employment as himself. 
 
 " But these cases were decided upon 
 the ground that the government was 
 the principal, and the defendant mere- 
 ly the servants. If an action were 
 brought by the owner of goods against 
 the manager of the goods traffic of a 
 railway company for some injury sus- 
 tained on the line, it would fail unless 
 it could be shown that the particular 
 acts which occasioned the damage 
 
 were done by his orders or directions ; 
 for the action must be brought either 
 against the principal, or against the 
 immediate actors in the wrong. Story 
 on Agency, § 313. And all that is 
 decided by this class of cases is, that 
 the liability of a servant of the public 
 is no greater than that of the servant 
 of any other principal, though the re- 
 course against the principal, the pub- 
 lic, cannot be by an action. The 
 principle is the same as that on which 
 the surveyor of the highways is not 
 responsible to a person sustaining in- 
 jury from the parish-ways being out 
 of repair, though no action can be 
 brought against his principals, the 
 inhabitants of the parish. But the 
 defendants in the present action are 
 not servants of the public in that 
 sense. For this we need do no more 
 than refer to the recent decision of 
 your Lordships' House in Jones v. 
 Mersey Board, where they were held 
 to be ratable as occupiers of the 
 docks on the very ground that they 
 did not occupy as servants of the 
 public or government. 
 
 •■ Another class of cases, also cited, 
 depends upon the following principle. 
 If the legislature directs or authorizes 
 the doing of a particular thing, the 
 doing of it cannot be wrongful; if 
 damages result from the doing of that 
 thing, it is just and proper that com- 
 pensation should be made for it, and 
 that is generally provided for in the 
 statutes authorizing the doing of such 
 things. But no action lies for what is 
 damnum sine injurid; the remedy is 
 to apply for compensation under the 
 provision of the statutes legalizing 
 what would otherwise be a wrong. 
 This, however, is the case, whether 
 the thing is authorized for a public 
 
§ 151 NEGLECT IN MANAGING PUBLIC PROPERTY, 29 1 
 
 of the corporation itself, led to a decision which is appli- 
 cable to all cases relating to the care of public property.^ 
 
 purpose or a private profit. No action 
 will lie against a railway company for 
 erecting a line of railway authorized 
 by its acts, so long as the directors 
 pursue the authority given them, any 
 more than it would lie against the 
 trustees of a turnpike road for mak- 
 ing their road under their acts; though 
 the one road is made for the profit of 
 the shareholders in the company and 
 the other is not. The principle is, 
 that the act is not wrongful, not be- 
 cause it is for a public purpose, but 
 because it is authorized by the legis- 
 lature. Rex V. Pease, 4 B. & Ad. 30. 
 This, we think, is the point decided in 
 The Governors of the British Cast 
 Plate Manufacturers v. Meredith, 4 
 T. R. 794 ; Sutton v. Clarke, 6 Taunt. 
 29, and several other cases, as is well 
 explained by Mr. Justice Williams in 
 Whitehouse v. Fellowes, 10 C. B. 
 (N. S.) 779- 
 
 " But though the legislature has 
 authorized the execution of the works, 
 it does not thereby exempt those au- 
 thorized to make them from the obli- 
 gation to use reasonable care that in 
 making them no unnecessary damage 
 be done. In Brine v. The Great 
 Western Railway Company, 2 B. & 
 S. 402, Mr. Justice Crompton says : 
 ' The distinction is now clearly estab- 
 lished between damage from works 
 authorized by statutes, where the party 
 generally is to have compensation, 
 and the authority is a bar to an action 
 and damage by reason of the works 
 being negligently done, as to which 
 the owner's remedy by way of action 
 remains.' 
 
 "This distinction is as applicable 
 to works executed for one purpose as 
 for another. This principle seems to 
 have been that acted upon in Leader 
 V. Moxon, 3 Wils. 461, Sir W. Bl. 
 924, and it is to some extent recog- 
 nized in Sutton v. Clarke, 6 Taunt. 29, 
 by Chief-Justice Gibbs, who puts the 
 judgment on the ground that the de- 
 fendant, in the execution of a duty 
 imposed on him by the legislature, 
 had exercised his best skill, diligence, 
 and caution in the execution of it. 
 ' We are of opinion,' says Chief-Jus- 
 tice Gibbs, ' that he is not liable for 
 an injury which he did not only not 
 foresee, but could not foresee. He 
 has done all that is incumbent on 
 him, having used his best skill and 
 diligence.' This certainly implies 
 that, in the opinion of those who 
 concurred in that judgment, the de- 
 fendant would have been liable if he 
 had neglected to use his best skill and 
 diligence. 
 
 " In the subsequent case of Jones v. 
 Bird, 5 B. & A. 837, Justice Bayley 
 laid down a stricter rule. He said 
 that the defendants, who in that case 
 were the persons actually executing a 
 sewer, authorized by statute, were not 
 protected merely because acting bona 
 fide and to the best of their skill and 
 judgment. 'That,' says he, 'is not 
 enough; they are bound to conduct 
 themselves in a skillful manner, and 
 the question was most properly left to 
 the jury to say whether the defendants 
 had done all that any skillful person 
 could reasonably be required to do in 
 such a case.' And there is a con- 
 
 ■ Pollock on Torts (pp. 51, 52) says: management and maintenance of 
 "Where bodies of persons, incor- works, or the performance of other 
 porated or not, are intrusted with the duties of a public nature, they are in 
 
292 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. §151 
 
 And in the recent case of Gilbert v. Corporation of 
 Trinity House,' the possession and control of a portion 
 
 siderable number of cases, to which 
 we shall afterward refer, in which, on 
 this principle, actions have been held 
 to lie against bodies executing works 
 under the authority of statutes for the 
 improper mode in which their powers 
 have been executed, though the de- 
 fendants did not derive any profit 
 from the execution of the works." 
 
 In the same case the Lord Chan- 
 cellor (Lord Cranworth) says : " In 
 the case of Gibbs, it must be taken 
 as admitted by the appellants that, 
 knowing that the dock was, by reason 
 of an accumulation of mud therein, in 
 an unfit state to be navigated, they 
 did not take reasonable care to put 
 the same ' into a fit state for that pur- 
 
 pose '; whereupon the Sierra Nevada, 
 in endeavoring to enter into the dock, 
 struck against the mud, and the cargo 
 thereby became damaged. In the 
 other case (which did not arise upon 
 a demurrer), it must be taken as an 
 established fact that the appellants 
 had, by their servants, the means of 
 knowing the dangerous state of the 
 dock, but were negligently ignorant 
 of it. It is plain that if the appellants 
 are liable in the former case, they 
 must be liable also in the latter. If 
 the knowledge of the existence of the 
 mud bank made them responsible for 
 the consequences of not causing it to 
 be removed, they must be equally re- 
 sponsible if it was only through their 
 
 their corporate 01; quasi-cox^oxsXe. ca- 
 pacity responsible for the proper con- 
 duct of their undertakings no less 
 than if they were private owners ; and 
 this whether they derive any profit 
 from the undertaking or not. Mer- 
 sey Docks Trustees v. Gibbs, 1864-6, 
 L. R. I H. L. 93. 
 
 " The same principle has been ap- 
 plif d to the management of a public 
 harbor by the executive government 
 of a British colony. Reg. v. Williams 
 (Appeal from New Zealand), 9 App. 
 Cas. 418. The rule is subject, of 
 course, to the special statutory pro- 
 visions as to liability and remedies 
 that may exist in any particular case. 
 L. R. I H. L. 107." 
 
 In The Queen v. Williams, L. R. 
 9 App. Cas. 418 (1884), the case al- 
 luded to by Pollock, Sir Richard 
 Couch says : " The present case dif- 
 fers from the Lancaster Canal Com- 
 pany V. Pamaby, 1 1 A. & E. 230, and 
 Mersey Docks Trustees v. Gibbs, Law 
 Rep. I H. L. 93, in that there are no 
 
 harbor dues, and the public have a 
 right to navigate subject to the har- 
 bor regulations, but the harbor is 
 under the control and management 
 of the executive government, which 
 has authority to remove obstructions 
 in it. The staiths and wharves be- 
 longing to the executive government, 
 which receives wharfage and tonnage 
 dues in respect of vessels using them. 
 These are collected by the railway 
 authorities appointed by the govern- 
 ment, and the manager of the railway 
 department directs where the vessels 
 which are to load with coals shall be 
 placed. It appears to their Lordships 
 that this ca.se is within the principle 
 upon which the above cases were de- 
 cided, and upon the facts proved they 
 are of opinion that the law imposes a 
 duty upon the executive government 
 to take reasonable care that vessels 
 using the staiths in the ordinary man- 
 ner may do so without danger to the 
 vessel." 
 
 ' L. R. 17 Q. B. D. 795 (1886), 
 
§151 NEGLECT IN MANAGING PUBLIC PROPERTY. 293 
 
 of a discarded beacon, which had been negligently left in 
 a harbor, was recognized as a sufficient ground to give 
 rise to the duty to exercise care and to create liability for 
 the damage that it occasioned. 
 
 culpable negligence that its existence 
 was not known to them. The prin- 
 ciples, therefore, which are to regu- 
 late the judgment of the House in the 
 one case must also decide it in the 
 other. And the question therefore is, 
 what are the principles which regu- 
 late the liabilities of such a body as 
 that of the Mersey Docks and Harbor 
 Board ? 
 
 " Where such a body is constituted 
 by statute, having the right to levy 
 tolls for its own profits, in considera- 
 tion of making and maintaining a 
 dock or a canal, there is no doubt of 
 the liability to make good to the per- 
 sons using it any damage occasioned 
 by neglect in not keeping the works 
 in proper repair. This was decided 
 by the Court of Queen's Bench, and 
 the decision was affirmed in the Court 
 of Error in the case of Pamaby v. 
 The Lancaster Canal Company, u 
 A. & E. 223. The ground on which 
 the Court of Error rested the decision 
 in that case is stated by Chief-Justice 
 Tindal to have been that defendants 
 there, who constituted the company, 
 made the canal for their profit, and 
 opened it to the public upon the pay- 
 ment of tolls. And the common law 
 
 in such a case imposes a duty upon 
 the proprietors to take reasonable 
 care, so long as they keep it open for 
 the public use of all who may choose 
 to navigate it, that they may do so 
 without danger to their lives or prop- 
 erty. 
 
 " The only difference between that 
 case and those now standing for deci- 
 sion by your Lordships, is, that here 
 the appellants, in whom the docks are 
 vested, do not collect tolls for their 
 own profit, but merely as trustees for 
 the benefit of the public. I do not, 
 however, think that this makes any 
 difference in principle in respect to 
 their liability. It would be a strange 
 distinction to persons coming with 
 their ships to different ports of this 
 country that in some ports, if they 
 sustain damage by the negligence of 
 those who have the management of 
 the docks, they will be entitled to 
 compensation, and in others they will 
 not; such a distinction arising, not 
 from any visible difference in the 
 docks themselves, but from some 
 municipal difference in the consti- 
 tution of the bodies by whom the 
 docks are managed." 
 
 Day, J., says : " In this case two ques- 
 tions arise. First, are the defendants 
 liable to be sued at all in respect of in- 
 juries caused by reason of the negli- 
 gent condition in which beacons, or 
 the remains of beacons, vested in them 
 are kept ? Secondly, is there any evi- 
 dence of negligence on the part of a 
 person for whom the defendants could 
 be held responsible ? I entertain no 
 
 doubt whatever on the first point. 
 The law is plain, that whosoever 
 undertakes the performance of, or is 
 bound to perform, duties — whether 
 they are duties imposed by reason of 
 the possession of property, or by the 
 assumption of an office, or however 
 they may arise — is liable for injuries 
 caused by his negligent discharge of 
 those duties. It matters not whether 
 
294 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § 1 52 
 
 § 152. Particular authorities applicable to question.— 
 Many of the authorities already cited with reference to 
 the neglect to repair highways are applicable to this ques- 
 tion, for this neglect is generally in regard to property 
 from which compensation is not received.^ But it re- 
 ceives most satisfactory exposition in the cases in this 
 country which relate to the neglect of municipalities in 
 the care of their drains and sewers, for these ordinarily 
 
 he makes money or a profit by means 
 of discharging the duties, or whether 
 it be a corporation or an individual 
 who has undertaken to discharge 
 them. It is also immaterial whether 
 the person is guilty of negligence by 
 himself or by his servants. If he 
 elects to perform the duties by his 
 servants ; if, in the nature of things, 
 he is obliged to perform the duties by 
 employing servants, he is responsible 
 for their acts in the same way that he 
 is responsible for his own. As to per- 
 sons who have undertaken duties of a 
 public character and discharged them 
 without profit or emolument, take the 
 case cited in argument, Mersey Docks 
 and Harbor Board v. Overseers of 
 Llaneilian, 14 Q. B. D. 770. Now, to 
 my mind, it would have made no dif- 
 ference in that decision of the commis- 
 sioners, for the Mersey Docks had been 
 amalgamated into one commission 
 with the commissioners of any num- 
 ber of other docks. It is not because 
 they have more duties to discharge 
 that they are less liable for the conse- 
 quence of their negligence. It is not 
 because they have more opportunities 
 of doing wrong that they are to be less 
 liable to make compensation for the 
 wrong when they have done it. In 
 the same way I can see no difference 
 in the liability of persons who have 
 undertaken the discharge of duties in 
 respect of 50 or 500 lighthouses than 
 
 if they have undertaken the discharge 
 
 of duties in respect of one The 
 
 Trinity House, to my mind, is not in 
 the position of a great ofHcer of state. 
 It is nothing more than an amalga- 
 mation by authority of state of a vast 
 number of bodies having general au- 
 thority over the lighthouses and bea- 
 cons and buoys throughout the coun- 
 try for the general convenience. It is 
 a corporation with very great powers 
 vested in it by statute, but in no pos- 
 sible sense can it be deemed to repre- 
 sent the Crown. All the general 
 officers of state are, if I may say so, 
 emanations from the Crown. They 
 are delegations by the Crown of its 
 own authority to particular individu- 
 als. That is not the case with the 
 Trinity House, which has its nature 
 and origin defined with sufficient 
 clearness to enable us to say that at 
 any rate it is in no sense an emana- 
 tion from the Crown, nor in any way 
 whatever, a participant of any royal 
 authority. In my judgment, therefore, 
 the defendants are liable like any other 
 body for their own negligence, or the 
 negligence of their servants, for it may 
 be difficult to see how a corporation 
 could itself be guilty of negligence." 
 
 See Gibraltar Sanitary Commis- 
 sioners V. Orfila, L. R. 15 App. Cas. 
 400, 63 L. T. 58 (1890). 
 
 ' Supra, Chaps. VI. and VII. 
 
§ 153 NEGLECT IN MANAGING PUBLIC PROPERTY. 295 
 
 are maintained for the general benefit alone. And in the 
 substantial agreement of the courts that liability exists 
 for negligence in the care of this property, the rule 
 already advanced finds strong support. 
 
 That this agreement exists will appear from the authori- 
 ties referred to in the following section. 
 
 § 153. Neglect to repair drains and sewers. — The duty 
 to exercise care in the maintenance of drains and sewers 
 is recognized and enforced where there is mere neglect 
 to repair, in Massachusetts and all of the New England 
 States, as well as in all of the States where the common- 
 law rule of liability for defective highways maintains.* 
 
 ' New York v. Furze, 3 Hill 
 612 (1842) ; Wilson v. New York, i 
 Denio 595, 43 Am. Dec. 719 (1845) ; 
 Lloyd V. New York,l Seld. 369 (1851); 
 Hutson V. New York, 9 N. Y. 163 
 (1853) ; Wendell v. Troy, 39 Barb. 
 335 (1862) ; Nims v. Troy, 59 N. Y. 
 500 ; Barton v. Syracuse, 36 N. Y. 54; 
 McCarthy v. Syracuse, 46 N. Y. 194 ; 
 Searing v. Saratoga, 39 Hun 307 ; 
 Masterton v. Mt. Vernon, 58 N. Y. 
 391 (1874) ; Smith v. New York, 66 
 N. Y. 29s (1876) ; Seifert v. Brooklyn, 
 loi N. Y. 136; Wessman v. Brooklyn, 
 40 N. Y. St. Rep. 698, 16 N. Y. Supp. 
 97 ; Child V. Boston, 86 Mass. 41 
 (1862) ; Emory v. Lowell, 104 Mass. 
 13 (1870); Parker v. Lowell, ^^ Mass. 
 353. (1858) ; Merrifield v. Worcester, 
 1 10 Mass. 216; Brayton v. Fall River, 
 113 Mass. 118 ; Washburn, etc. Mfg. 
 Co. V. Worcester, 116 Mass. 458; 
 Boston Rolling Mills v. Cambridge, 
 117 Mass. 396 ; Gould v. Boston, 120 
 Mass. 300; Murphy v. Lowell, 124 
 Mass. 564; Tindley v. Salem, 137 
 Mass. 171 ; Stanchtield v. Newton, 
 142 Mass. no; Winn v. Rutland, 52 
 Vt. 481 ; Rowe v. Portsmouth, i;6 N. 
 H. 291 (1876) ; Judge v. Meriden, 38 
 
 Conn. 90; Detroit V, Corey, 9 Mich.. 
 165 (1861) ; Ashley v. Port Huron, 35 
 Mich. 296 ; Mt. Vernon v. Lee, 36 
 111. App. 24 (1891) ; Champaign v. 
 Forrester, 29 111. App. 117 ; Neims v. 
 Peoria, 41 111. 502 ; Jacksonville v. 
 Lambert, 62 111. 519; Elgin v. Kim- 
 ball, 90 111. 356 ; Buck V. Biddeford 
 (Me.), 19 Atl. Rep. 912 ; Bradbury v. 
 Benton, 69 Me. 194; Markle v. Ber- 
 wick (Pa.), 21 Atl. Rep. 794 (1891) ; 
 Collins V. Philadelphia, 93 Pa. 272 
 (l88o) ; Margarity v. Wilmington, 5 
 Houst. (Del.), 530(1877); Hazzardv. 
 Council Bluffs, 79 la. 106 (1890) ; 
 Simpson v. Keokuk, 34 la. 568; Dam- 
 our V. Lyons City, 44 la. 282; Powers 
 V. Council Bluffs, 50 la. 201 ; Kranz 
 V. Baltimore, 64 Md. 491 (1885) ; 
 Denver v. Capelli, 4 Col. 25 ; Dorman 
 V. Jacksonville, 13 Fla. 538 ; Taylor 
 V. Austin, 32 Minn. 247 (1884) ; 
 Phelps V. Mankato, 23 Minn. 276 ; 
 Harper v. Milwaukee, 30 Wis. 365 ; 
 Spelman v. Portage, 41 Wis. 144; 
 Gilluly V. Madison, 63 Wis. 510 ; He- 
 lena v. Thompson, 29 Ark. 569; Davis 
 v. Crawfordsville, 119 Ind. l, 12 Am. 
 St. Rep. 361, note; Welter v. St. 
 Paul, 12 Am. St. Rep. 754, note; 
 
296 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § 1 53 
 
 In two States^ liability has been denied where there is 
 nothing more than an injury from mere neglect to repair, 
 although in these localities it is admitted that for an active 
 injury done to private property and caused by neglect to 
 repair, an action would lie.* 
 
 Bathurst v. Macpherson, 4 App. Cas. 
 256, supra, § 48 ; Atty.-Genl. v. Bas- 
 ingstoke, 45 L. J. Ch. 729 (1876) ; 
 Reeves v. Toronto, 21 N. C. Q. B. 
 360 ; Glassop v. Hestor, etc. Local 
 Board, L. R. 12 Ch. Div. 121 (1879). 
 In Dillon on Munic. Corp., § 1049, 
 it is said : " In accordance with the 
 above distinction between legislative 
 or judicial duties on the one hand, 
 and ministerial duties on the other 
 (a distinction plain in theory, but 
 oftentimes difficult of application to 
 particular cases), a municipal corpo- 
 ration is liable for negligence in the 
 ministerial duty to keep its sewers 
 (which it alone has the power to con- 
 trol and keep in order) in repair, as 
 respects persons whose estate^ are 
 connected therewith by private drains, 
 in consequence of which such persons 
 sustain injuries which would have 
 been avoided had the sewers been 
 kept in a proper condition. If the 
 sewer is negligently permitted to be- 
 come obstructed or filled up, so that 
 it causes the water to back-flow into 
 cellars connected with it, there is 
 a liability therefor on the part of the 
 municipal corporation having the con- 
 trol of it, and which is bound ' to 
 preserve and keep in repair erections 
 it has constructed so that they shall 
 not become a source of nuisance ' to 
 others. The work of constructing 
 gutters, drains, and sewers is minis- 
 terial, and when, as is usually the 
 case, the undertaking is a corporate 
 one, the corporation is responsible in 
 a civil action for damages caused by 
 the careless or unskillful manner of 
 
 performing the work." Citing many 
 authorities. See id. §§ 105 1, 105 ia. 
 
 ■ California and New Jersey. See 
 Chope Y. Eureka, 78 Cal. 588(1889); 
 Spangler v. San Francisco, 84 Cal. 
 12, 23 Pac. Rep. 1091, 18 Am. St. 
 Rep. 158 ; infra, n. 2. 
 
 ' Jersey City v. Kiernan, 50 N. J. 
 L. 246 (1887), Beasley, Chief-Justice, 
 says : " From the statement of the 
 facts prefacing this opinion, it will be 
 perceived that the first question sub- 
 mitted to this court for its advice re- 
 lates to the legal basis of the action. 
 Will a suit lie against a municipality 
 for damages done to land adjacent to 
 a public sewer by water escaping 
 therefrom by reason of a break in 
 such sewer, occurring through faulty 
 construction, and because the same 
 was not kept in proper repair ? 
 
 " The general subject thus intro- 
 duced is not a novel one to the courts 
 of this State. As long ago as the 
 year 1840, in the case of Freeholders 
 of Sussex V. Strader, 3 Harr. 108, it 
 was declared, in the language of the 
 opinion : ' That where a corporate 
 body, whether of a municipal or a 
 private character, owes a specific 
 duty to an individual, an action will 
 lie for a breach or neglect of that 
 duty, whenever such breach or neg- 
 lect has occasioned an injury to that 
 individual ; but if such corporation 
 owe a duty to the public, a neglect to 
 perform it, although every individual 
 composing that public is injured^ some 
 more and some less, yet they can have 
 no private remedy at the common 
 law.' 
 
§ 154 NEGLECT IN MANAGING PUBLIC PROPERTY. 297 
 
 § 154. Distinction between neglect of sewers and neglect 
 of highways. — The distinction which it is claimed exists 
 between the duty to repair sewers and the duty to repair 
 highways, and which gives rise to liability in one case 
 and not in the other, is not satisfactory. And although 
 it has been many times set forth, the ground upon which 
 it rests is not clearly settled, as appears from a recent case 
 
 . . . . " Repeated adjudications have 
 followed in the track of this decision, 
 and eventually, in the case of Liver- 
 more V. Freeholders of Camden, 2 
 Vroom 508, the doctrine was affirmed 
 and applied in its full vigor by the 
 court of last resort. 
 
 " Without, therefore, referring to 
 the other cases, it is sufficient to say 
 that to this extent the law, in this de- 
 partment of it, is not now open to dis- 
 cussion. 
 
 .... " After careful consideration, 
 my conclusion is that the general rule 
 established by the line of cases refer- 
 red to is not applicable to the facts 
 present in this instance, and that 
 whenever an indictment will not lie 
 for such a neglect as is here com- 
 plained of, attended with such conse- 
 quences as have here ensued , the per- 
 son thus specially injured may, in 
 ■ order to right the wrong, resort to an 
 action. The injury is altogether pri- 
 vate in its character, and is capable 
 of being continued indefinitely, so that 
 under some circumstances the land 
 might, in substance, be applied to the 
 public use without compensation. The 
 injustice done and the necessity for a 
 remedy are alike obvious, and it would 
 be to push to an extreme the doctrine 
 which, under most circumstances, 
 gives immunity to the community in 
 case of the misconduct of public offi- 
 cials. 
 
 .... "The conclusion to which 
 
 this court has finally come is this : 
 That the defendant is not responsible 
 for the consequences of a break in the 
 sewer in question, /i?rj^, even though 
 it be the result of the carelessness of 
 its own agents, for the public is not 
 responsible for such misfeasances of 
 its officers ; but when such break has 
 occurred, occasioning a private nui- 
 sance exclusively, and the public au- 
 thorities have been notified of the ac- 
 cident, we think that then they owe a 
 duty to the individual to put the sewer 
 in a proper condition, and that for the 
 non-performance of such duty that an 
 action will lie.'' 
 
 And in Spangler v. San Francisco, 
 84 Cal. 12 (1890), where property was 
 flooded by the discharge from a sewer, 
 Thornton, J., says : " The liability 
 here rests in the duty of the city to 
 keep the sewers in repair, which duty, 
 after ample knowledge of it, was 
 grossly neglected. 
 
 " It was the duty of the city, when 
 it does provide waterways, to provide 
 such as are sufficient to cany off the 
 water that might reasonably be ex- 
 pected to accumulate. The rule is so 
 laid down in Damour v. Lyons City, 
 44 la. 282 ; approved and followed in 
 Powers V. City of Council Bluffs, 50 
 la. 201, 202. See Mayor of New 
 York V. Bailey, 2 Denio 433. We 
 think the rule above stated correct, 
 and approve it." 
 
298 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 1 54 
 
 in which the question is discussed.^ Inasmuch as the 
 property holders who contribute toward the building of 
 
 ■ 'Bates V. Westborough, 151 Mass. 
 174, 23 N. E. Rep. 1070, 7 L. R. A. 
 156(1890). Here Holmes, J., refer- 
 ring to the general rule of liability for 
 negligence in the construction and 
 maintenance of sewers, says : " It was 
 not intended to overrule or to modify 
 the well-settled rule which we have 
 stated, by the decision in Kennison v. 
 Beverly, 146 Mass. 467. In that case 
 the damage was caused by percolation 
 from a catch-basin, which seems to 
 have been incident only to an open 
 gutter by the side of the highway. 
 Assuming that there was evidence 
 for the injury, that there was such an 
 artificial accumulation of water as 
 to fall within the cases of White v. 
 Chapin and Manning v. Lowell, and 
 that the trouble was due to negligence 
 in construction rather than to the plan 
 adopted, still it may be that the town 
 was not liable, in the absence of such 
 evidence that it did the work as was 
 found in Deane v. Randolph, 132 
 Mass. 475; Waldron v. Haverhill, 
 143 Mass. 582, and Doherty v. Brain- 
 tree, 148 Mass. 495, 497. It may be 
 that defects in such a catch-basin are 
 to be regarded as defects in surface 
 drainage within the limits of the high- 
 way, and therefore as defects in the 
 repair of the highway, the charge 
 which is committed by statute to the 
 highway surveyors. Highway sur- 
 veyors, in the performance of their 
 statutory duties, are held to be public 
 officers, and not agents of the town, 
 partly because of the town's want of 
 control over them, and partly because 
 the duty to repair the surface of high- 
 ways is regarded as a public duty, 
 from which the town derives no 
 special advantage in its corporate 
 capacity. Walcott v. Swampscott, I 
 
 Allen loi ; Barney v. Lowell, 98 
 Mass. 570, 571 ; Tindley v. Salem, 
 137 Mass. 171, 174; Blanchard v. 
 Ayer, 148 Mass. 174, 176. For these 
 and perhaps other reasons, it is held 
 that towns are not liable for defects 
 in such repair apart from statute, ex- 
 cept in such cases as we have men- 
 tioned. White V. Phillipston, 10 Met. 
 108, no; Bigelow v. Randolph, 14 
 Gray 541, 543 ; Oliver v. Worcester, 
 102 Mass. 489, 499 ; Hill v. Boston, 
 122 Mass. 344, 350. It seems that 
 this irresponsibility is not confined to 
 nonfeasance, or to damage in the 
 highway to persons traveling there, 
 but extends to cases of misfeasance-- 
 see Walcott v. Swampscott, i Allen 
 loi ; Tindley v. Salem, 137 Mass. 171 ; 
 Manners v. Haverhill, 135 Mass. 165 — 
 and to injury to persons or property 
 outside of the highway; Holman v. 
 Townsend, 13 Met. 297 ; Smith v. 
 Dedham, 8 Cush. 522. See Benjamin 
 V. Wheeler, 8 Gray 409, and Turner 
 V. Dartmouth, 13 Allen 291 ; Braily 
 V. Southborough, 6 Cush. 141. 
 
 " But it is settled by the cases which 
 we have cited (Emery v. Lowell, etc.), 
 that there is no such immunity with 
 regard to sewers and main drains.. 
 These belong to the cities and towns 
 by statute ; Pub. Sts., c. 50, § i ; and 
 although the road commissioners, 
 who are given authority to maintain 
 them by the same section, are prob- 
 ably no more the agents of the town 
 than highway surveyors, when ex- 
 ercising highway surveyors' duties 
 (Barney v. Lowell, ubi supra ; Neally 
 V. Bradford, 145 Mass. 561, 564), still 
 perhaps they have not so exclusive an 
 authority over sewers, and at all 
 events the interest of the towns in the 
 sewers is so distinct from that of the 
 
§ 154 NEGLECT IN MANAGING PUBLIC PROPERTY. 299 
 
 sewers often contribute toward the grading and paving 
 of streets, and as cities have important property rights 
 in their streets, it would seem that one rule ought to 
 apply to both instances, that the distinction is artificial, 
 and that the cases laying down different rules are incon- 
 sistent. 
 
 In a New Hampshire case^ this inconsistency is recog- 
 nized, and the court contends that the liability exists in 
 regard to the construction of sewers, because the city vol- 
 untarily acts under the provisions of the law allowing 
 such construction in this case, whereas, in regard to the 
 repair of highways, the action of the city is involuntary 
 and forced upon all cities by general law. And the same 
 
 public at large that they are held with 
 reason to the ordinary responsibilities 
 of owners. See further, Oliver v. 
 Worcester, 102 Mass. 489, 500 ; Has- 
 kell V. New Bedford, ro8 Mass. 208 ; 
 Hand v. Brookline, 126 Mass. 324." 
 
 In Detroit v. Corey, 9 Mich. 165, 
 Manning, J., said : " Statutory power 
 to construct sewers under public 
 streets is not a power given to the 
 city for government purposes, or a 
 public municipal duty imposed on the 
 city, like that to keep its streets in 
 repair, or the like, but a special legfis- 
 lative grant to the city for private 
 purposes. The sewers of the city, 
 like its works for supplying the city 
 with water, are the private property 
 of the city ; the corporation and its 
 corporators — its citizens — are alone 
 interested in them ; the outside public 
 or people of the State at large have 
 no interest in them, as they have in 
 the streets of the city, which are 
 public highways." See Bulger v. 
 Eden, 82 Me. 352 (1890) ; Darling v. 
 Bangor, 68 Me. 1 10 ; Blood v. 
 Bangor, 66 Me. 154; Estes v. China, 
 56 Me. 407. 
 
 ' Rowe V. Portsmouth, 56 N. H. 
 291 (1876). In this case the damage 
 was occasioned by the stoppage of a 
 sewer which was negligently maintain- 
 ed by the city, and it was contended 
 that there was no liability on the part of 
 the city in accordance with the princi- 
 ples laid down in Eastman v. Meredith, 
 36 N. H. 284, but Cushing, C. J., dis- 
 tinguished this latter case, holding that 
 in the case presented the obligation 
 was voluntarily assumed, and upon 
 the general question under considera- 
 tion said : " The question whether 
 municipal corporations in this coun- 
 try or corporations in England hav- 
 ing some of the powers and charged 
 with some of the duties usually exer- 
 cised by municipal corporations here 
 are liable for negligence, carelessness, 
 or misfeasance, both in the perform- 
 ance of their legal duties and the do- 
 ing of voluntary acts within the scope 
 of their authority, has been much con- 
 sidered on both sides the Atlantic, and 
 the decided weight of modern authori- 
 ty is that in this respect they stand like 
 private individuals or corporations." 
 
300 MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § 1 54 
 
 principle has been recently asserted in Vermont.^ This 
 distinction between voluntary and involuntary acts has 
 been, however, directly repudiated in Massachusetts,* and 
 seems to be artificial and unimportant. Few of the du- 
 ties which, by their breach, give actions for damages are 
 voluntary duties. All statutory duties imposed upon 
 railway corporations, for example, are involuntary, but 
 for that reason it will not be contended that an action 
 for damage occasioned by their breach will not arise, and, 
 moreover, if the legislature clearly declares its intention 
 to impose an involuntary duty upon a city, from that 
 very fact the importance of the observance of the duty 
 is evident, and it would be most unwise to take away the 
 ordinary safeguard for the performance of such obliga- 
 tions. The wrong is not less, but greater, because the 
 duty is involuntary, and there is no propriety in depriv- 
 ing one who has been damaged of the remedies he would 
 have against a less flagrant wrong-doer. 
 
 The true ground of responsibility for negligence in 
 the care of sewers, as in the care of highways, is that the 
 corporation has neglected a municipal duty in the care of 
 property under its control. 
 
 ' In Winn v. Rutland, 52 Vt. 4.81, signed to subserve a general public 
 Powers, J., says : " The charter of the good, and which devolve upon all 
 village of Rutland, among other such corporations alike, such as the 
 things, empowered the village to building and keeping in repair of 
 build and maintain sewers. It did highways and bridges, public build- 
 not impose their construction upon ings, etc. In such cases no private 
 the village as a duty to be performed right of action arises from negligence 
 against its will, but as a privilege to in the performance of the duty, unless 
 be exercised or not at its pleasure, it be specially given by statute. The 
 The correlative rights and duties of municipality, as a convenient instru- 
 the corporation and individuals inter- mentality, is charged with the exer- 
 ested in and affected by the exercise cise of a public duty for the State and 
 of the chartered power are not to be not for itself." 
 sought for in the rules of law applica- ^ Tindley v. Salem, 137 Mass. 171, 
 ble to legislative duties imposed upon 50 Am, Rep. 289 (1884). 
 municipal corporations which are de- 
 
155 NEGLECT IN MANAGING PUBLIC PROPERTY, 30I 
 
 § 155. Control by corporation essential.— To make the 
 corporation liable for the damages occasioned by neglect- 
 ing to keep a drain or sewer in repair, however, it must 
 appear that it had control thereof, and that the drain or 
 sewer was for the use of the public.^ The mere purchase 
 by a corporation of land over which there is a drain will 
 not make this a public sewer.^ It is not, however, essen- 
 
 ' See Monticello v. Fox (Ir.d. App.), 
 28 N. E. Rep. 1025 ; supra, §§ 73, 74. 
 
 * Kosmak v. New York, 117 N. Y. 
 361, 22 N. E. Rep. 1025 (1889), 
 Andrews, J., says : " The sewer, so- 
 called, from the Ottendorfer house, 
 was constructed by the owner of the 
 premises, with the consent of the city, 
 as a private drain. It never changed 
 its character. When the Ottendorfer 
 premises were purchased for the 
 Brooklyn Bridge the title vested in the 
 city or for the benefit of the city, and 
 was taken with the same rights which 
 the grantor had in the drain. It did 
 not become a public sewer because 
 the municipality became the owner of 
 the property. When the plaintiff ob- 
 tained permission of the city authori- 
 ties to connect his premises with the 
 drain, he stood in the same position to 
 the city as he would have stood to Mrs. 
 Ottendorfer, if she had remained the 
 owner of the bridge premises, and the 
 permission had been obtained from 
 her. She would not have been bound 
 to limit the use of the drain to the water 
 and material then discharged into it 
 from her premises, nor to remove any 
 obstruction therein for the protection 
 of the plaintiff, nor would she be 
 bound to stop using it on notice that 
 the plaintiff's premises were flooded. 
 The city, on acquiring title to the 
 bridge property, stood in her shoes, 
 and subject to no greater obligation 
 to the plaintiff than would have rested 
 on Mrs. Ottendorfer in the case sup- 
 
 posed. Neither she nor the city could 
 willfully or maliciously injure the 
 plaintiff. But the plaintiff under the 
 permit was a mere licensee, and when 
 he found that the water flooded his 
 premises, it was for him to take the 
 necessary measures for their protec- 
 tion. He could not cast the duty upon 
 the city. 
 
 " There was no evidence that the city 
 adopted the drain as a public sewer, 
 and the evidence on this point would 
 not have been strengthened if the 
 plaintiff had been permitted formally 
 to introduce the deed to the bridge 
 company in evidence, or to show more 
 explicitly that the water discharged 
 into the drain was greater than before 
 the bridge was completed. It was not 
 claimed that any more was discharged 
 into it at any time than it was capable 
 of carrying off if it had not been ob- 
 structed. The ten dollars paid for a 
 permit was paid for a license to use 
 the private drain. It imposed no duty 
 on the city to keep it in repair or free 
 from obstruction. The city officers, 
 on being notified, said they would at- 
 tend to the matter. It seems they did 
 examine, and found that the Frankfort 
 street sewer, at the point where the 
 drain entered it, was free. But if they 
 did not perform their promise to the 
 plaintiff, this gave him no cause of 
 action. The administrative officers of 
 the city could not by their act convert 
 a private drain into a public sewer, 
 nor impose upon the city an obligation 
 
302 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § 1 56 
 
 tial that a sewer should extend entirely over public prop- 
 erty ; and if it passes in part through private property 
 and at its outlet overflows, the corporation is responsible 
 for the entire damage done by it.* But it is not liable 
 for injuries received by a trespasser who falls into an ex- 
 cavation on private property.** And in no event is there 
 liability without notice, actual or constructive, of the 
 defect.^ 
 
 § 156. Examinations to be made. — The whole duty of 
 the municipality is not discharged by repairing breaks of 
 which it has actual or constructive notice. Beyond this 
 it must exercise reasonable care to prevent their occur- 
 rence by reasonable inspection. And if the condition of 
 sewers is such that they cannot withstand a heavy rain, 
 they should be repaired ; for negligence in failing to 
 know their condition the municipality will be liable 
 when the damage occurs.* A similar rule has been 
 
 founded upon their promise to repair 
 and remedy the difficulty." 
 
 ' In Stoddard v. Saratoga Springs, 
 127 N.Y.261 (1891), Bradley, J., says: 
 " It may be observed that the sewer 
 was constructed three-quarters of its 
 length along certain streets in the vil- 
 lage ; and the referee has awarded 
 such damage only as he found was oc- 
 casioned by sewage which entered 
 the sewer along the streets. This evi- 
 dently was done upon the theory that 
 the portion of it not laid along the 
 streets was not necessarily under the 
 control of the corporation. This por- 
 tion through the private lands had the 
 effect to convey the sewage from the 
 other part of it in the streets to its out- 
 let, thus causing the injury produced 
 by it. 
 
 " It is unnecessary for the purpose 
 of this review to consider the corpo- 
 rate relation, other than in that aspect, 
 to such portion of the sewer. The 
 
 sewer within the streets was certainly 
 under the control of the defendant. 
 And one of its purposes was to take 
 into it and thence to its outlet what- 
 ever was conducted into it by means 
 of lateral drains and sewers from 
 houses, etc., along its line; and the 
 defendant was liable to the plaintiffs 
 for so improperly providing or locating 
 the outlet as to ca\ise the sewage to 
 pass from it onto their premises. 
 Noonan v. City of Albany, 79 N. Y. 
 470 ; Chapman v. City of Rochester, 
 no Id. 273.'' See Chalkley v. Rich- 
 mond (Va.), 14 S. E. Rep. 339. 
 " Murphy v. Brooklyn, 118 N. Y. 
 
 575 (1890)- 
 
 ' See Mayor v. Wilson, 82 Ga. 207 
 (1888) ; Mendell v. Wheeling, 28 W. 
 Va. 233 ; Haus v. Bethlehem, 134 Pa. 
 12, 19 Atl. Rep. 437; Flori v. St. 
 Louis, 69 Mo. 341, 18 Am. Rep. 504 
 (1879). /n/ra. Chap. XX. 
 
 *In Vandersclice v. Philadelphia, 
 
§ 157 NEGLECT IN MANAGING PUBLIC PROPERTY, 303 
 
 observed with respect to sidewalks, bridges, and other 
 property of municipal corporations, 
 
 § 157. Duty as owner of public buildings. — It has been 
 held in New England, and to some extent elsewhere, 
 that there is no liability for a failure to keep buildings 
 used exclusively for public purposes in a reasonably safe 
 condition for use.^ It is said that these buildings are 
 
 103 Pa. 102 (1883), it was said : 
 " Mere absence of notice does not 
 necessarily absolve the city from the 
 charge of negligence. Its duty to 
 keep its sewers in repair is not per- 
 formed by waiting until notified that 
 they are out of repair, and repairing 
 them only when the attention of the 
 officials is called to the damage re- 
 sulting from their dilapidation or ob- 
 struction, but it involves the exercise 
 of a reasonable degree of watchful- 
 ness in ascertaining their condition 
 from time to time, and preventing 
 them from becoming dilapidated or 
 obstructed. When the obstruction 
 or dilapidation is an ordinary result 
 of the use of the sewer, which ought 
 to have been anticipated, the omis- 
 sion to make an occasional examina- 
 tion, and to keep the sewers in ap- 
 parent good repair, is a neglect of 
 duty which renders the city liable. 
 McCarthy v. City of Syracuse, 46 
 N. Y. 194. Where the defect is ob- 
 servable, and has existed so long as 
 to become notorious, the city is liable 
 as if there had been express notice. 
 The city is presumed to have knowl- 
 edge of an open defect after a reason- 
 able time has elapsed for its ascer- 
 tainment and removal. Requa v. 
 City of Rochester, 45 N. Y. 129. 
 Where there is a latent defect which 
 causes an injury, the city is not liable 
 for the damages unless it had notice ; 
 but a defect is not latent which can 
 be seen by the exercise of reasonable 
 
 care and examination. If the alleged 
 defect in the sewer where the break 
 occurred was patent for so long a 
 time prior to the injury, that it ought 
 to have been discovered and repaired 
 by the city, the plaintiff may recover 
 without establishing actual notice. . . . 
 
 " It is plain that the large fall of 
 water bursted the sewer, and equally 
 plain, if the testimony is true, that the 
 sewer was in such bad condition as 
 to be likely to break whenever there 
 should be a fall of water equal to the 
 maximum the sewer was designed to 
 receive and carry off. If the sewer 
 was constructed in a workmanlike 
 manner, and due care had been taken 
 to'keep it in proper order, and it was 
 broken only by a rainfall so extra- 
 ordinary as to be without the range 
 of probability, the city was not charge- 
 able with negligence. But if the break 
 was owing to the defective condition 
 of the sewer, and the city had omitted 
 the duty to examine and keep it in 
 repair, the case is different. If prop- 
 erly constructed and in good repair, 
 would the water which entered its 
 inlets have passed through without 
 causing a break .' If so, the break 
 should not be imputed to an unprec- 
 edented rainfall." 
 
 See further in regard to the duty of 
 examination, Kibele v. Philadelphia, 
 105 Pa. 41 (1884) ; supra, §§ 94, 122 ; 
 infra, § 190. 
 
 ' Eastman v. Meredith, 36 N. H. 
 296 (1858), is a leading case upon 
 
304 MUNICIPAL DUTIES— GOVERNMENTAL AFFAIRS. §157 
 
 held for public purposes only, and that the corporation 
 acts in its governmental character in maintaining them. 
 This, however, is another instance where municipal duties 
 arise with reference to governmental affairs, A municipal 
 corporation holds its sewers for the public good only, 
 and yet by general consent is responsible for neglecting 
 to keep them in repair. It holds its highways for the 
 benefit of the public, and yet by the great preponderance 
 of authority it is liable for neglecting to keep them in a 
 reasonably fit condition for use. And it also holds public 
 buildings from which it derives an income to be applied 
 to public uses, subject to the duty to exercise care.^ Why, 
 then, should not the obligation extend to all public 
 buildings ? Most of the arguments used in reference to 
 the care of streets apply to this question,^ and it need 
 only be said here that the duty to exercise care cannot be 
 abrogated, and that every person or corporation violating 
 
 this point. There the floor of a town- private citizen for an injury caused by 
 
 hall fell, and it was held there was no any defect or want of repair in a city 
 
 liability on the part of the town for or town-hall or other public building 
 
 negligence concerning it. See also erected and used solely for municipal 
 
 Hill V. Boston, 1 22 Mass. 344, supra, purposes, or for negligence of its 
 
 § 45; Wixon V. Newport, 13 R. 1. 454 agents in the management of such 
 
 (1878), supra, § 147. buildings. This is because it is not 
 
 In Cunningham v. St. Louis, 96 liable to private actions for omission 
 
 Mo. 53 (1888), it was held -that the or neglect to perform a corporate 
 
 city of St. Louis occupied the same duty imposed by general laws upon 
 
 position with regard to its court- all cities and towns alike, from the 
 
 house that the county had previously performance of which it derives no 
 
 occupied, and that as no action could compensation. 
 
 be brought against the county, none " But when a city or town does not 
 
 could be brought against the city. devote such building exclusively to 
 
 In Bennett v. New Orleans, 14 La. municipal uses, but lets it or a part of 
 
 Ann. 120 (1859), it was held that it for its own advantage and emolu- 
 
 where a public draining-machine over- ment, by receiving rents, or otherwise, 
 
 flowed for lack of repair there was no it is liable while it is so let in the 
 
 liability on the part of the city. same manner as a private owner 
 
 See infra, §§ 158, 159. would be. Oliver v. Worcester, 102 
 
 ' In Worden v. New Bedford, 131 Mass. 489; Hill v. Boston, 122 Mass. 
 
 Mass. 23 (1881), Morton, J., says: 344." 
 
 " A city or town is not liable to a ' Supra, %% 58, 60. 
 
§ 158 NEGLECT IN MANAGING PUBLIC PROPERTY. 305 
 
 this duty, if capable of being sued, siiould be answerable 
 in damages for its breach. 
 
 § 158. Authorities holding municipalities liable for defects 
 in public buildings. — In New York the responsibility of 
 the city of New York for defects in and about its 
 court-house has been recognized.^ And recovery was 
 had from the city of Brooklyn for injuries received by 
 one who was injured by an explosion of gas caused by 
 negligence of the employees of the city while examining 
 tax books in a municipal building.* The fact that liabil- 
 ity has not been incurred in cases of negligence with 
 regard to school buildings in the city of New York is 
 because these buildings are not in the control of the 
 city.^ In Pennsylvania the city of Philadelphia has been 
 held responsible for direct injuries occasioned by de- 
 fective plumbing in a school building.* In Missouri, 
 also, a city has been made liable for negligence in the 
 care of the cellar doors of a police station.® And in 
 Massachusetts, in a case which it is difficult to recon- 
 cile with the general doctrine upheld there, a ruling by 
 the trial judge that a city would not be liable for injuries 
 occasioned by the negligence of employees of the city in 
 storing naphtha in a building belonging to the city was 
 reversed upon appeal.® The naphtha was for use in con- 
 
 ' Galvin v. New York, 112 N. Y. » Vincent v. Brooklyn, 31 Hun 122. 
 
 223 (i88g). Here the driver of a cart ' Supra, § 34; infra, § 163. 
 
 was injured, while delivering coal at * Briegel v. Philadelphia, 135 Pa. 
 
 the court-house, by a heavy grating, 451, 30 Am. & Eng. C. C. 501, note 
 
 which, being negligently fastened up, (1890). 
 
 fell upon him. In the opinion in the ' Carrington v. St. Louis, 89 Mo. 
 
 case, Ruger, Ch. J., says : " No ques- 208 (1886). 
 
 tion arises as to the defendant's neg- « Sullivan v. Holyoke, 135 Mass. 275 
 
 ligence, and it was admitted on the (1883), Devens, J., says: "Itisfamil- 
 
 trial that it owned the court-house, iar law that a city or town is not to 
 
 and was charged with keeping and be held responsible for the careless 
 
 maintaining the same and its appur- acts of officers who are required by- 
 
 tenances in a safe and suitable condi- statute to be chosen, and whose duties, 
 
 tion, free from danger to those law- are thereby defined. Hill v. Boston, 
 
 fully in and about the building." 122 Mass. 344; Deane v. Randolph. 
 20 
 
306 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS, § I59 
 
 nection with the street lamps, and there does not seem 
 to be any ground for claiming that the duty of the city 
 was based upon a payment of money, or that there was 
 a direct injury to property. The case therefore stands 
 as a strong authority for the proposition that a city is 
 liable for damages resulting from the negligent manage- 
 ment of property, even if.it is held for public purposes. 
 
 § 159. Defects in county buildings. — It has been held in 
 several cases that counties were not responsible for dam- 
 ages occasioned by defects in or neglect to repair county 
 buildings.* These cases have been decided, however, 
 
 132 Mass. 475. This for the reason 
 that the municipal corporation has no 
 control over their tenure of office, 
 nor, as a general rule, any authority 
 to direct the mode in which their 
 duties are to be performed. 
 
 " Where a town or city undertakes 
 to perform a duty imposed upon it by 
 law, by means of agents whom it may 
 direct and control, it is held respon- 
 sible for the acts of those agents. 
 Thus where a town, although it had 
 duly chosen surveyors of highways, 
 voted that the selectmen should be its 
 agents to repair the highways and 
 bridges, which had been injured by 
 an extraordinary freshet, it was held 
 responsible for a tort committed by 
 them. Hawkes v. Charlemont, 107 
 Mass. 414; Deane v. Randolph, ubi 
 supra. 
 
 " If a city sees fit, in the exercise of 
 the duty imposed upon it of keeping 
 the highways in repair, or because it 
 deems it for the public advantage to 
 provide for street lights by means of 
 agents whom it furnishes with naphtha 
 or other burning fluid, to be taken 
 care of by them, as well as the lamps 
 in which it may be used, it may prop- 
 erly do so. In such case, it would be 
 responsible for the agents and servants 
 
 whom it employed, as it could control 
 and direct them. There was no evi- 
 dence of any express authority by 
 vote of the city council that the streets 
 should be lighted by servants or 
 agents whom the city employed. Ex- 
 press vote to this effect is not neces- 
 sary. There was endence that there 
 was, and for some years had been, a 
 committee of the city council on street 
 lights, that the naphtha was the prop- 
 erty of the city, kept in one of its 
 buildings made accessible to an em- 
 ployee of the committee on street 
 lights, who was a lamplighter, and 
 that the streets were actually lighted 
 by it. This was sufficient to raise the 
 inquiry whether in fact these street 
 lights were not maintained, and the 
 explosive fluid owned, kept, and used 
 by authority of the city, and thus 
 whether the city was not responsible 
 for the neglect of the servants em- 
 ployed in its custody and use." 
 
 ' In Shepard v. Pulaski County 
 (Ky.), 18 S. W. Rep. 15 (1892), Holt, 
 C. J., says : " The appellant, Elmer 
 Shepard, while attending a school ex- 
 hibition in the court-room on the 
 second floor of the Pulaski county 
 court-house, fell from the veranda in 
 front of it, and was injured. The 
 
§ l6o NEGLECT IN MANAGING PUBLIC PROPERTY. 307 
 
 primarily with reference to the question whether the 
 county was under a duty to keep the building safe, and 
 could be sued for damages occasioned by its defective 
 condition. And they must be considered with reference 
 to the local statute law of the States wherein they were 
 decided. 
 
 § 160. Duty as owner of other public property. — Cases 
 of much interest have arisen in which the principle of 
 liability has been recognized in the care and control of 
 other corporate property. In New York, in a recent 
 case it was conceded that the city of Brooklyn would be 
 liable for negligence in the care of wells maintained by it 
 for public use, although in the case referred to no negli- 
 gence was proven.' 
 
 In Massachusetts, also, the city of Boston was held 
 liable for the negligent manner in which a wire owned by 
 
 front door of the court-room opened 
 into a hall, which had three windows 
 reaching to the floor between it and 
 the veranda. Through one of these 
 the appellant, wKo was then but eight 
 years old, walked, and in the dark- 
 ness fell off the veranda, which had 
 no railing around it. The ground of 
 this action to recover damages for his 
 injury is the neglect of the county in 
 failing to have any railing around the 
 veranda to prevent persons from fall- 
 ing from it. The lower court, upon 
 demurrer, dismissed the petition. It 
 is well settled in this State that a 
 county is not liable for an injury aris- 
 ing from its neglect, or even its posi- 
 tive act, unless the liability is express- 
 ly, or by necessary implication, im- 
 posed by statute. The question is 
 considered, and authorities reviewed 
 in the cases of Downing v. Mason 
 Co., 87 Ky. 208, 8 S. W. Rep. 264, 
 and Hite v. County Court (Ky.), 15 
 
 S. W. Rep. 57. We have no statute 
 authorizing an action like this one." 
 
 See also Hamilton County v. Mi- 
 ghels, 7 Ohio St. 109 ; Kincaid v. 
 Hardin County, 53 la. 430, 36 Am. 
 Rep. 236 (1880) ; Dosdale v. Olmsted 
 County, 33 Minn. 96, 44 Am. Rep. 
 185 (1882); Hollenbeck V. Winnebago, 
 35 Am. Rep. i^i, su^ra; Armstrong 
 V. Brunswick, 79 Mo. 319 ; Swine- 
 ford V. Franklin County, 73 Mo. 279 ; 
 Reardon v. St. Louis County, 36 Mo. 
 555. See also Lane v. Woodbury, 58 
 la. 462 ; supra, p. 59, n. 2. 
 
 ' Danaher v. Brooklyn, 119 N. Y. 
 241. In this case the court said: 
 " It was undoubtedly the duty of the 
 city to keep the wells and pumps in 
 good order, and to keep the wells 
 properly cleaned out, so that they 
 would not become contaminated by 
 anything that would be thrown into 
 them." See t'n/ra, § 190. 
 
308 MUNICIPAL DUTIES — GOVERNMENTAL AFFAIRS. § l6o 
 
 it was moved.^ And in Indiana, an engineer who was 
 put to work on a defective fire-engine, was allowed to 
 recover damages for an injury suffered by him,'' 
 
 This latter case illustrates the distinction between the 
 duty to manage property with care and the governmental 
 duty to prevent damage by fire. The breach of the for- 
 mer duty alone occasioned the injury, and this was an 
 obligation incidental to the ownership of the property, 
 and one that any individual was capable of performing. 
 
 In a case involving the same question, however, the 
 Supreme Court of New Jersey refused to hold a mu- 
 nicipal corporation responsible.^ And in Massachusetts 
 it has been held that there can be no recovery for an in- 
 jury received from the bursting of a fire hose, even if this 
 
 ' Neuert v. Boston, 120 Mass. 338 
 (1876). Cf. Fisher v. Boston, 104 
 Mass. 87, 6 Am. Rep. 196. 
 
 = Lafayette v. Allen, 81 Ind. 166 
 (188 1); Clarissey V. Metropolitan Fire 
 Dept. (N. Y.). 7 Abb. Pr. N. S. 352 
 (1869). See Coots v. Detroit, 43 N. 
 W. Rep. 17, opinion of Champlin, J., 
 p. 21. 
 
 ' V^ild V. Paterson, 47 N. J. L. 406 
 (1885), Magie, J., says : "The duty of 
 the city of Paterson to maintain a fire 
 department is manifestly a duty owed 
 to the public and imposed by law. 
 Any one injured by negligence in 
 the performance of that duty, will 
 be debarred from action for such 
 injury by the well-settled rule above 
 stated. 
 
 " Plaintiff's contention is, that his 
 case is exceptional, and not within the 
 rule, upon the ground that the duty of 
 keeping the machinery used for ex- 
 tinguishing fires in good order, is, as 
 respects those who are employed in its 
 use, a private duty, owed, not to the 
 public, but to the employee. 
 
 " But the distinction thus sought to 
 
 be made is, in my judgment, merely 
 specious. 
 
 " It does not appear what was the 
 precise relation between plaintiff, as a 
 member of the fire department, and' 
 the city. Whether his services were 
 voluntarily rendered or were paid for, 
 is not disclosed. But in either case 
 the relation is not the ordinary rela- 
 tion of master and servant. Em- 
 ployees of such corporations in the 
 execution of its public duties have 
 been held to be mere instruments in 
 the performance of such duties, and to 
 act as public officers charged with a 
 public service. Condict v. Jersey City, 
 46N.J. L. 157. 
 
 " The duty to provide and maintain 
 apparatus for extinguishing fires is 
 plainly included within the public duty 
 of establishing a fire department for 
 that purpose. The city, as a corpora- 
 tion, derives from it no special benefit 
 or advantage. The duty is single and 
 undivided, and although the city must 
 perform this duty by means of agents 
 or officers, it owes to them no special 
 duty, dififering either in kind or degree 
 
§ l60 NEGLECT IN MANAGING PUBLIC PROPERTY. 309 
 
 is caused by negligence.^ In New York^ and Vermont' 
 contradictory decisions have also been rendered where 
 
 from the duty which it owes to others 
 in this respect. The duty is of a pub- 
 lic character, and on grounds of pub- 
 lic policy its neglect will not give a 
 right of action to any individual in the 
 absence of a statute. If there are any 
 reasons for a modification of this rule 
 with respect to employees of such cor- 
 porations engaged in hazardous ser- 
 vice, they cannot be considered by the 
 courts. The rule can only be modi- 
 fied by the legislature. In the absence 
 of legislation the plaintiff is within the 
 rule and plainly without a right of 
 action." See Hayes v. Oshkosh, 33 
 Wis. 314. 
 
 ' Fisher v. Boston, 104 Mass. 87, 6 
 Am. Rep. 196 (1870). 
 
 ° Jenney et al. v. City of Brooklyn, 
 120 N. Y. 164, 30 Am. & Eng. C. C. 
 511 (1890), Parker, J., says: "A mu- 
 nicipal corporation does not insure the 
 citizen against damage from works of 
 its construction. Its obligation and 
 duty in such respect is measured by 
 the exercise of reasonable care and 
 vigilance. Liability can only be predi- 
 cated upon its neglect or misconduct. 
 McCarthy v. City of Syracuse, 46 N. 
 Y. 194; Smith v. Mayor, etc., 66 Id. 
 295 ; Ring v. City of Cohoes, 77 Id. 
 83 ; Hunt v. Mayor, etc., 109 Id. 134. 
 
 " Proof that the plaintiffs sustained 
 damage by the flooding of their works 
 with water from defendant's mains 
 could not alone justify a recovery. It 
 was necessary to go further, and show 
 that the injury was occasioned by an 
 omission of duty on the part of the 
 municipality, in that it failed to use 
 reasonable care in the erection and 
 construction of the hydrant, or there- 
 after omitted to properly superintend 
 it for the purpose of keeping it in re- 
 pair. No attempt was made to show 
 
 that the method of construction adopt- 
 ed by the city was defective, the hy- 
 drant imperfect, the materials of in- 
 ferior quality, the workmen unskillful, 
 or that the work was not carefully and 
 thoroughly done." 
 
 ' In Welsh v. Village of Rutland, 56 
 Vt. 228, s. C. 48 Am. Rep. 762, it was 
 held that an incorporated village is not 
 liable for damage resulting from the 
 negligence of an engineer of its fire de- 
 partment in thawing out a hydrant, 
 whereby water escaped, formed ice on 
 the street, and thereby caused an injury 
 to a traveler. Royce, C. J., said : " The 
 fire department and its service are of 
 no benefit or profit to the village, in its 
 corporate capacity. They are not a 
 source of income or profit to the vil- 
 lage, but of expense, which is paid — 
 not out of any receipts or fund, nor de- 
 frayed, even in part, by assessment 
 upon particular persons or classes 
 benefited, as in case of sewers or 
 water-works — but from the general 
 fund raised by taxation of all the in- 
 habitants. The benefit accrues, not 
 in any sense to the corporation as 
 such, but directly to the public, and 
 the members or employees of the de- 
 partment, whether acting as an inde- 
 pendent though subordinate organ- 
 ization, or under the direct authority 
 of the general officers of the corpora- 
 tion, are, while acting in the line of 
 duty prescribed for them, not agents 
 of the corporation in the sense which 
 renders it liable for their acts, but are 
 in the discharge of an official duty as 
 public officers. To such it is held in 
 many cases that the doctrine of re- 
 spondeat superior does not apply, and 
 for their acts no liability can be im- 
 posed upon the corporation except by 
 statute. " 
 
;iO MUNICIPAL DUTIES GOVERNMENTAL AFFAIRS. § l6o 
 
 there was negligence of city employees with regard to 
 hydrants : in the former State liability of the city being 
 recognized, and in the latter denied. 
 
 As the owner of trees the city is liable for injuries 
 caused by their unsafe condition.^ And it has been re- 
 
 ' In Jones v. New Haven, 34 Conn. 
 I (1867), Carpenter, J., referring to 
 the duty to trim the trees belonging to 
 the city, says : " This duty is not, 
 strictly speaking, a public one. It is 
 not a matter in which the public at 
 large, outside of the immediate vicinity 
 of New Haven, have any particular 
 interest. It is not a power or duty 
 imposed upon the city by general 
 law ; nor is it applicable alike to all 
 cities ; but it is a special power or 
 privilege conferred upon the city at 
 its request. In the argument it was 
 likened to the duty of a town in 
 respect to highways. But the dis- 
 tinction between the two cases seems 
 to me to be very marked. The duty 
 of opening and maintaining highways 
 is a governmental one. It is true 
 government discharges this duty 
 for convenience's sake through the 
 medium of the several towns and 
 cities, but the manner of discharging 
 the duty does not change its nature. 
 Government then is interested in the 
 performance by the town of its duty 
 in this respect, while government, as 
 such, has no interest whatever in the 
 manner in which these shade trees 
 are cared for. The entire public 
 have a direct interest in the streets 
 and highways of the city of New 
 Haven, and will insist upon their 
 being kept open and fit for public 
 use, whether the city is willing or 
 otherwise ; but the city may, if it 
 thinks proper, remove or destroy 
 every shade tree in the highways and 
 public squares within its limits, and 
 the outside public, however much 
 
 they may regret it, will have no right 
 to interfere. The duty in question, 
 seems to me to resemble very closely 
 the duty of a town or city that has 
 contracted to supply its inhabitants 
 with water or gas, or to promote 
 their comfort and health by a system 
 of drainage and sewerage. In cases 
 of this character, if the corporation 
 undertakes the duty, and performs it 
 in so careless or negligent a manner 
 as to injure others, or if it negligently 
 permits the works to be out of repair, 
 whereby damage is done to indi- 
 viduals, the corporation is unques- 
 tionably liable. In this case the city 
 has undertaken the duty of keeping 
 these trees in proper condition. It 
 negligently permitted one of them to 
 be in an unsafe condition, whereby 
 the plaintiff was injured. I am un- 
 able to see upon what principle the 
 defendant can be exempted from 
 liability.'' 
 
 This decision has caused the Con- 
 necticut court much difficulty in view 
 of its attitude on the question of de- 
 fective highways. 
 
 See Hewison v.New Haven,37 Conn. 
 475 ; Dillon on Munic. Corp., p. 1277. 
 
 Consult supra, % 97 ; McCarthy v. 
 Boston, 135 Mass. 197 (1883); Kelly 
 V. Fond du Lac, 31 Wis. 179. In 
 Weller v. McCormick, 52 N. J. L. 
 470 (1890), it was held that a land- 
 owner was not liable for damages 
 occasioned by neglect to trim trees 
 which the city had planted along the 
 streets. One who is there injured by 
 a falling branch from such a tree is 
 without remedy. 
 
§ l6o NEGLECT IN MANAGING PUBLIC PROPERTY. 311 
 
 cently held that recovery can be had from the corporation 
 for damages suffered because of the negligent condition 
 in which a city dump-yard was kept.^ But in New 
 Jersey there is no liability for the negligent manner in 
 which an employee of the city manages a dumping-cart 
 owned by the city, while engaged in his duty of gather- 
 ing ashes and refuse from the sidewalks and taking them 
 to the public dumping-ground.** 
 
 ' Fort Worth v. Crawford, 74 Tex. 
 404 (1889), a city is not liable for the 
 damage done by the sudden overflow- 
 ing of a river which is its property. 
 Moore v. Los Angeles, 72 Cal. 28' 
 (1887). 
 
 See Loughran v. Des Moines, 72 
 la. 382. 
 
 « Condict V. Jersey City, 46 N. J. L. 
 157. Here the court said: "The 
 cases I have cited are not rested 
 wholly on the ground that the per- 
 sons through whose negligence the 
 injury happened were officers of the 
 municipal government established by 
 the legislature, having an independent 
 tenure of office and particular duties 
 imposed upon them by the charter. 
 In some of the instances the persons 
 by whose negligence the injury was 
 caused were laborers and third per- 
 sons employed by departments of 
 the municipal government having 
 capacity to represent the city in mak- 
 ing the employment, with the power 
 to continue or remove their employees 
 and to control them in the perform- 
 ance of their employments ; and the 
 employment was such that, as be- 
 tween private individuals, the doctrine 
 of respondeat superior would apply. 
 The true principle on which a munic- 
 ipal corporation is exempted from 
 
 liability in such cases is that given by 
 Dixon, C. J., in Hayes v. City of Osh- 
 kosh, 33 Wis. 314, that the corpora- 
 tion is engaged in the performance of 
 a public service in which it has no 
 particular interest, and from which it 
 derives no special benefit or advantage 
 in its corporate capacity, but which 
 it is bound to see performed in pur- 
 suance of a duty imposed by law for 
 the general welfare of the inhabitants 
 and the community, and the persons, 
 employed in the performance of such 
 duties, though employed by the cor- 
 poration, act as public officers charged 
 with a public service. To maintain 
 in its integrity the doctrine of our 
 courts that a municipal corporation 
 is not amenable to actions for negli- 
 gence in the performance of public 
 duties, it is necessary to maintain 
 also that persons employed by the 
 corporation in the execution of public 
 duties are mere agencies or instruments 
 by which such duties are performed^ 
 and that the doctrine of respondeat 
 superior does not apply to such em- 
 ployments. To impose upon the cor- 
 poration liability for the negligence of 
 such employees would indirectly fix 
 upon the corporation a liability from 
 which it is by law, on considerations 
 of public policy, exempted." 
 
CHAPTER XVIII. 
 
 RESPONDEAT SUPERIOR. 
 
 5 i6i. Municipal corporations liable for negligence of servants. 
 
 162. Corporate duty must be violated. 
 
 163. Independent public officers. 
 
 164. Independent boards for public work. 
 
 165. Test of municipal liability for acts of public boards. 
 
 166. Method of appointment not decisive. 
 
 167. Liability for negligence of contractors. 
 
 168. When contractors are alone liable. 
 
 169. Acts of subordinates to be within scope of authority. 
 
 170. Defense of co-employment. 
 
 171. Action over by municipality. 
 
 § 161. Municipal corporations liable for acts of servants.— 
 Liability of municipal corporations for the acts of their 
 representatives arises from the obligation of the rule re- 
 spondeat superior. The necessity of this rule has been 
 widely recognized, and it is clear that in requiring the 
 exercise of care for the protection of others, no satisfac- 
 tory result would be accomplished if a master was not 
 ordinarily responsible for the acts of his servant done in 
 his behalf. For those who set in motion the most work 
 and create the greatest amount of danger would be wholly 
 free from responsibility for negligence in respect to it. 
 And both the rule itself and its application to municipal 
 corporations are thoroughly well settled, as the cases here- 
 tofore cited abundantly show. Important and difficult 
 questions, however, often arise in reference to the liabil- 
 ity of municipalities for negligence of this character aris- 
 ing mainly from the inquiries, Was the subordinate who 
 
§§ l62, 163 RESPONDEAT SUPERIOR. 313 
 
 has been negligent a servant of the particular corporation 
 brought into court, and was the negligent act in the case 
 presented within the scope of the authority of the ser- 
 vant ? 
 
 § 162. Corporate duty must be violated.— The liability 
 of the municipality is dependent upon a breach of duty 
 by that particular corporation. If, therefore, the facts 
 show that some other public body or public officer was 
 the master of the person who has been negligent, or that 
 the act complained of was in excess of the authority of 
 the servant, then the municipality charged with responsi- 
 bility has violated no duty. In such cases the work or 
 act cannot properly be called the act of the corporation, 
 and there is no principle upon which it can be made an- 
 swerable for the acts of agents in excess of their author- 
 ity, or for the personal wrong-doing of subordinates. 
 
 § 163. Independent public officers. — A municipal corpo- 
 ration cannot be made responsible for the negligence of 
 public officers who are not under its control or engaged 
 in performing duties of the corporation.^ Such officers 
 are not themselves liable for negligence in respect to gov- 
 ernmental duties, but are generally held to responsibility 
 for all negligence in the performance of ministerial du- 
 
 'WoodonMasterandServant,§463, Compare Gushing v. Bedford, 125 
 
 says: " For the acts of an independ- Mass. 475; Dunbar v. Boston, 112 
 
 ent officer, whose duties are fixed and Mass. 75 ; Alger v. Easton, 119 Mass. 
 
 prescribed by law, the city cannot be ^^ \ New Bedford v. Taunton, 9 Al- 
 
 held chargeable upon the principle of len 207 ; Winbigler v. Los Angeles, 
 
 respondeat superior, for the relation 45 Cal. 36 ; Lorillard v. Monroe Co., 
 
 of master and servant does not exist. 11 N. Y. 392; People v. Chenango 
 
 Such officers are quasi civil officers of County, Id. 571 ; Hamilton Co. v. Gar- 
 
 the government, even though appoint- rett, 62 Tex. 602 ; Hilsdorf v. St. Lou- 
 
 ed by the corporation. But anexcep- is, 45 Mo. 94; Black v. Columbia, 19 
 
 tion to this rule exists when the cor- S. C. 412 ; Chope v. Eureka, 78 Gal. 
 
 poration is under an absolute duty to 588, 12 Am. St. Rep. 113; Downing 
 
 perform the acts which are devolved v. Mason County, 87 Ky. 208, 12 Am. 
 
 upon such officers, or when the cor- St. Rep. 473 ; Rowland v. Gallatin, 
 
 poration, as such, derives an immedi- 75 Mo. 34, 42 Am. Rep. 395. See 
 
 ate profit and advantage therefrom." infra, §§ 164, 167. 
 
314 RESPONDEAT SUPERIOR. § 163 
 
 ties.^ And the corporation can only, in any event, be 
 made liable for their carelessness in respect to these lat- 
 ter obligations. In respect to these, however, even al- 
 though a public officer is independent of the municipal- 
 ity, if he is performing duties which rest upon the corpo- 
 ration, this body will be responsible for his negligence in 
 their discharge. Thus for the carelessness of police offi- 
 cers in failing to report defects in the public streets, of 
 which they have knowledge, a city may be made answer- 
 able for damages occasioned to one who has been injured 
 thereby, although police officers represent the power of 
 the State.* And, in general, where a duty primarily rests 
 upon the municipality, although some officer is appointed 
 to discharge it, there will be responsibility on the part of 
 the corporation for his neglect to the extent of the duty.' 
 But in Massachusetts, where the duty to keep highways in 
 repair is statutory, a town is only liable for the negligence of 
 highway surveyors, when some defect, contemplated by the 
 statute, exists in the way.* And even if the mayor and al- 
 dermen of a city act as surveyors of highways under its char- 
 ter, the municipality is not responsible for injuries occa- 
 sioned by their negligence in the performance of their 
 duties.* These decisions depend, however, in some degree 
 upon local statutes, but to a greater extent follow in the 
 line of the decision of Hill v. Boston.^ 
 
 'Sherman & Redfield on Neg., N. E. Rep. 442; Goodfellow v. New 
 
 § 313 et seq.; Mechem on Public Offi- York, 100 N. Y. 15. 
 
 cers, § 850. » Consult supra, §§ 72, 89. 
 
 " Where the duties of a public offi- * Walcott v. Swampscott, 83 Mass. 
 
 cer are ministerial, he is liable to an loi (i86i). 
 
 action of negligence if he negligently ' Hennessey v. New Bedford, 153 
 
 fails in the performance of them ; but Mass. 260, 26 N. E. Rep. 999 (1891). 
 
 when they are discretionary or judi- See Prince v. Lynn, 149 Mass. 193 
 
 cial, he is not liable." Whittaker's (1889). 
 
 Smith on Neg., p. 360, citing au- « See discussion of this subject in 
 
 thorities. Bates v. Westborough, supra, n. i, 
 
 " Kunz V. Troy, 104 N. Y. 344, 10 p. 298, 
 
§164 RESPONDEAT SUPERIOR. 315 
 
 § 164. Independent boards for public work. — Many 
 boards for the performance of public duties are provided 
 for by the charters of cities or by statutes, and the re- 
 sponsibility of cities for the acts of these boards has 
 been much discussed in the courts. The acts creating 
 such bodies must be looked to, in the first instance, to 
 designate their powers and their position relative to the 
 corporation.^ If a statute establishing a board of water 
 or sewer commissioners, or a board of charitable commis- 
 sioners, or school trustees establishes the board for the 
 purpose of carrying on the work of a particular corpora- 
 tion, or gives it power to act on its behalf, then it would 
 seem to be a subordinate of that body. But if, on the 
 other hand, it makes the board wholly independent, and 
 confers upon it no power of acting for any higher munic- 
 ipal body, then liability for its negligent acts will not 
 extend to any other corporation.' Moreover, where such 
 
 ' See Peake v. New Orleans, 139 U. the control or direction of the inhab- 
 
 S. 342, pp. 351, 352 (1890) ; O'Brien itants of the town, but are an inde- 
 
 V. New York, 15 N. Y. Supp. 520 pendent board of public officers, 
 
 (1891), infra, n. 2, p. 318; Mersey vested by law with the control of all 
 
 Docks V. Gibbs, L. R. i H. L. matters within their jurisdiction, and 
 
 93. performing duties imposed by general 
 
 « In Bulger v. Eden, 82 Me. 352, it laws." Brimmer v. Boston, 122 Mass. 
 
 is said: "Provision being made by 22; Burrill v. Augusta, 78 Me. 118, i 
 
 general statute law for the laying out N. E. Rep. 697 ; Woodcock v. Calais, 
 
 and construction of public drains and 66 Me. 235 ; Estes v. China, 56 Me. 
 
 sewers by the municipal officers, no 410; Lemon v. Newton, 134 Mass. 
 
 such authority can properly be claimed 479; Child v. Boston, 4 Allen 41; 
 
 as necessarily incident to the town in Tindley v. Salem, 137 Mass. 173, 174 ; 
 
 the exercise of its corporate powers. Gushing v. Bedford, 125 Mass. 528. 
 
 or the performance of its corporate " Though chosen and paid by the 
 
 duties. The muni:ipal officers in the town, and for many purposes its 
 
 performance of these duties, and in agents — as in making contracts within 
 
 the exercise of the authority with the scope of their authority about the 
 
 which they are invested by general affairs of the town, or acting under 
 
 law, act, not as agents of the town, the direction of the town in matters 
 
 but as public officers, deriving their pertaining to its corporate duties 
 
 power from their sovereign authority. (Dean v. Randolph, 132 Mass. 475) — 
 
 They act upon their own responsi- yet these officers do not sustain this 
 
 bility, and are not subject either to relation in reference to these particu- 
 
3i6 
 
 RESPONDEAT SUPERIOR. 
 
 164 
 
 a board is a servant of the corporation, it is to be noticed 
 that it does not necessarily follow that there will be cor- 
 porate liability, for the acts of the board may be entirely 
 
 lar duties in question. In this respect 
 they are a part of the municipal gov- 
 ernment in the performance of their 
 public dutiss, and are not servants or 
 agents of the municipality by whom 
 they are chosen and paid, rendering 
 their principals liable for their acts, 
 any more than are officers of a fire de- 
 partment (Burrill v. Augusta, 78 Me. 
 118. I N. E. Rep. 697; Hafford v. 
 New Bedford, 16 Gray 297); or sur- 
 veyors of highways and street com- 
 missioners when making, repairing, 
 or otherwise performing their official 
 duties upon highways or streets 
 (Small V. Danville, 51 Me. 359; 
 Woodcock V. Calais, 66 Me. 235 ; 
 Walcott V. Swampscott, i Allen loi ; 
 Barney v. Lowell, 98 Mass. 570) ; or 
 health officers, or municipal officers, 
 in the discharge of their duties in re- 
 lation to contagious diseases (Mitchell 
 V. Rockland, 52 Me. 118; Brown v. 
 Vinalhaven, 65 Me. 402 ; Barbour v. 
 Ellsworth, 67 Me. 294) ; or police 
 officers (Cobb v. Portland, 55 Me. 
 381 ; Buttrick v. Lowell, I Allen 172); 
 or overseers of the poor (Farrington 
 v. Anson, 77 Me. 406 ; New Bedford 
 V. Taunton, 9 Allen 207), — in all of 
 which there is an absence of corporate 
 liability ; nor can third persons, in- 
 jured either by the negligence, care- 
 lessness, or unskillfiilness of such offi- 
 cers while in the performance of duties 
 imposed upon them by the statutes in 
 such cases, invoke against their mu- 
 nicipality the rule of respondeat su- 
 perior." 
 
 And in Bryant v. St. Paul, 33 
 Minn. 289 (1885), where it appeared 
 that the board of health of the city had 
 negligently left a privy-vault open, the 
 
 court said : " In Kobs v. City of Min- 
 neapolis, 22 Minn. 159, which we 
 think presents a different question, 
 but which is relied on by the plaintiff, 
 a street commissioner dug a ditch 
 across a street, whereby a large quan- 
 tity of water was carried over to and 
 upon plaintiff's lot from land oppo- 
 site, and the city was properly held 
 liable, because there the street com- 
 missioner was the agent of the city in 
 the supervision and improvement of 
 streets, with large discretionary power 
 in the premises, and subject to con- 
 trol and removal by the city, and in 
 making such ditch across the street 
 he directly caused the flooding of 
 plaintiff's lot. The responsibility for 
 the care and control of streets be- 
 longed to the city, and he was acting 
 for the corporation in the course of 
 his employment in and about the dis- 
 charge of a corporate duty. The 
 city was bound so to use and control 
 the street as not to injure the prop*- 
 erty of others. Oliver v. Worcester, 
 102 Mass. 489 ; Thurston v. City of 
 St. Joseph, 51 Mo. 510. 
 
 " The cases of City of Dayton 
 v. Pease, 4 Ohio St. 89; Bailey v. 
 Mayor, 3 Hill 531 ; Rochester White 
 Lead Co. v. City of Rochester, 3 N. 
 Y. 463, and other like cases, are clear- 
 ly distinguishable from the case at 
 bar. These were actions for dam- 
 ages resulting from the negligence or 
 unskillfulness of the agents of the cor- 
 poration in and about the supervision 
 or management of corporate property, 
 or the construction of public improve- 
 ments under the authority of the mu- 
 nicipality in its corporate capacity. 
 The same remark will apply to cases 
 
§165 
 
 RESPONDEAT SUPERIOR. 
 
 3^7 
 
 governmental.* It has been usually held in this country 
 that these independent boards themselves are not, as 
 g'uast corporations, liable for the negligence of their own 
 acts or for the acts of their servants ; * but where they 
 have a corporate fund, and are performing ministerial 
 duties only, there is no sufficient reason why they should 
 not answer for their negligent acts or omissions.^ 
 
 § 165. Test of municipal liability for acts of public boards. 
 — The Court of Appeals in New York in a case involv- 
 ing the status of a board of water commissioners under a 
 city charter and the responsibility of the city for the neg- 
 ligent acts of the board, quoting from a former case in 
 that court,* said : " To determine whether there is mu- 
 nicipal responsibility, the inquiry must be whether 
 the department whose misfeasance or nonfeasance is 
 complained of is a part of the machinery for carrying 
 
 generally where the corporation has 
 directly authorized, participated in, or 
 ratified (where for any cause it may 
 lawfully do so) the alleged wrongful 
 acts, or has derived a profit or corpo- 
 rate advantage therefrom, though it 
 might not otherwise have been liable. 
 De Yoe v. Saratoga, i Hun 341 ; Tor- 
 mey v. Mayor, 12 Hun 542 ; Dooley 
 V. Kansas City, 19 Cent. Law J. 490 ; 
 Murphy v. Lowell, 124 Mass. 564; 
 City of Toledo v. Cone, 41 Ohio St. 
 149. But no such facts appear in this 
 case to qualify the rule of corporate 
 liability, and, as between the city and 
 the board, respondeat superior is not 
 applicable.'' 
 
 ' This question is discussed in many 
 cases where the duty to be enforced 
 is solely governmental, and it is held 
 that an additional reason exists for 
 not subjecting a municipality to lia- 
 bility for the negligence of its fire de- 
 partment, its commissioners of char- 
 ities, or its school trustees, in the fact 
 
 that these departments are conducted 
 under general laws, and are not, there- 
 fore, within the control of the city au- 
 thorities. See authorities cited supra, 
 
 %% 27-35- 
 
 ^ O'Leary v. Board of Com., 79 
 Mich. 281, 19 Am. St. Rep. 169 
 (1890); Elmore v. Drainage Comrs. 
 (111.), 25 N. E. Rep. loio; Nugent v. 
 Miss. Levee Comrs., 58 Miss. 197 
 (1880) ; Anne Arundel Co. v. Diwall, 
 54 Md. 350, 39 Am. Rep. 393 (1880). 
 See W^alsh v. Trustees N. Y. & Brook- 
 lyn Bridge, 96 N. Y. 427 ; Donovan v. 
 McAlpin, 85 N. Y. 185, 39 Am. Rep. 
 649; Donovan v. Board of Education, 
 85 N. Y. 117;' Ham V. New York, 70 
 N. Y. 459; Terry v. New York, 8 
 Bosw. 504 ; Finch v. Toledo Board, 
 etc., 30 Ohio St. 37 ; Clarissey v. Met- 
 ropolitan Fire Dept. (N. Y.), 7 Abb. 
 Pr. N. S. 352 (1869). 
 
 ' Consult supra, §§ 57, 58. 
 
 * Ehrgott v. New York, 96 N. Y. 
 273- 
 
3i8 
 
 RESPONDEAT SUPERIOR. 
 
 §165 
 
 on the municipal government, and whether it was at the 
 time engaged in the discharge of a duty, or charged with 
 a duty primarily resting upon the municipality." ^ 
 
 This test, if applied generally, will call for a decision 
 upon two points, namely : First, is the public board in 
 question a part of the machinery for carrying on the 
 municipal government? and, second, has it been neg- 
 ligent in the discharge of a municipal duty? In a recent 
 case in the Supreme Court of New York, however, it 
 was held that the city of New York was not liable for the 
 negligence of commissioners appointed to build an aque- 
 duct for the use of the city of New York under a statute 
 empowering them to contract on behalf of the city and 
 to complete the work.* 
 
 ' Pettengill v. Yonkers, 116 N. Y. 
 558 (1889). A further extract from 
 the opinion in this case is as follows : 
 
 " The duty of supplying the citizens 
 of Yonkers with water is by statute 
 made a municipal duty, and the board 
 of water commissioners exists for that 
 purpose. 
 
 "While this board is created by 
 special statute, it is recognized as a 
 department of the city government in 
 the charter, and charged with the 
 duty of 'making the necessary sur- 
 veys, etc., and preparing a general 
 plan and system of sewers for the 
 city,' also ' of preparing and approv- 
 ing specifications for constructing all 
 sewers, drains, wells, fire cisterns, lay- 
 ing water pipes, and erecting hy- 
 drants.' .... 
 
 " It is not an independent body 
 acting for itself, but is a department 
 of the city and one of the instruments 
 of the municipal government. Being 
 such, when engaged in digging the 
 trench for the purpose of laying water 
 pipe in Yonkers avenue, it was en- 
 gaged in the discharge of a municipal 
 
 duty, and it was obligatory upon it, in 
 so doing, to so protect and guard the 
 work that it should not endanger per- 
 sons using the street, and if that was 
 impossible, with a due and diligent 
 prosecution of the work, the street 
 should, by suitable barrier, have been 
 closed against the public. 
 
 " For its failure so to do and for 
 injuries resulting from such failure the 
 defendant is liable. Ehrgottv. Mayor, 
 etc., 96 N. Y. 265 ; Walsh v. Mayor, 
 etc., 107 Id. 220; Barnes v. Dist. of Co- 
 lumbia, 91 U. S. 540 ; Brusso v. City 
 of Buffalo, 90 N.Y. 679." See Barnes 
 Dumping Boat Co. v. New York, 40 
 Fed. Rep. 50 (1889). 
 
 » O'Brien v. New York, 15 N. Y. 
 Supp. 520 (1891). Upon this ques- 
 tion Ingraham, J., says: "As to all 
 claims against the city arising out of 
 the misconduct or mistakes or errors 
 of the engineer in charge of the work, 
 or on account of or by reason of dam- 
 ages sustained because of orders given 
 to them by the commissioners or the 
 engineer, there can be no recovery, 
 because, by the express provisions of 
 
§i65 
 
 RESPONDEAT SUPERIOR. 
 
 319 
 
 The statute, however, contained this provision in refer- 
 ence to the contract : " But in no event shall the city of 
 New York be held liable in any action or proceeding 
 brought or had, under any contract so made, to any other or 
 greater liability than that expressed therein, nor required to 
 pay out or otherwise dispose of any sum of money for the 
 doing of such work or the furnishing of such material 
 greater than is stipulated in such contract, nor otherwise 
 
 the act, the liability of the city of 
 New York is limited to the amount 
 required to be paid by the contract. 
 To impose any other liability upon 
 the city would be an express repeal 
 of the statute under which the con- 
 tract was made. 
 
 " As I have before stated, the lim- 
 itations contained in the statute under 
 which this contract was made and 
 the work done bound the persons who 
 made the contract for the doing of 
 the work. The first section of that 
 act designates the individuals who 
 are to carry out its provisions, and 
 the commissioners thus appointed are 
 given the appointment of the neces- 
 sary clerks, messengers, or employees, 
 and it is the aqueduct commissioners, 
 their engineers, supervisors, and in- 
 spectors who were to direct, super- 
 vise, and inspect the carrying out of 
 the performance of the contract. It 
 seems to me clear that neither the 
 aqueduct commissioners, nor the en- 
 gineers or inspectors, were servants 
 of the defendant so that the defendant 
 was liable for their negligence. In 
 the case of Maximilian v. Mayor, etc., 
 62 N. Y. 163, the responsibility of a 
 municipal corporation for the neg- 
 ligence of public officers is discussed, 
 and it seems to me that the liability 
 of the defendant for the acts of these 
 officers is determined by the principle 
 established in that case. Folger, J., 
 in delivering the opinion of the court, 
 
 says : ' This rule of respondeat supe- 
 rior is based upon the right which 
 the employer has to select his ser- 
 vants, to discharge them if not com- 
 petent or skillful or well behaved, and 
 to direct and control them while in 
 his employ. The rule has no applica- 
 tion to a case in which this power 
 
 does not exist The difficulty 
 
 is not here. It is in determining, in a 
 particular case, whether the negligent 
 employee is the servant of the munic- 
 ipality, for it is not every one who 
 has in charge personal property owned 
 by a municipality, and sets about 
 some lawful act with it within the 
 municipal bounds that is its ser\-ants, 
 nor even if his appointment comes 
 intermediately or immediate from the 
 municipality itself. If the act of the 
 officer or the subordinate of an officer 
 thus appointed is done in the attempt- 
 ed performance of a duty laid by the 
 law upon him, and not upon the mu- 
 nicipality, then the municipality is not 
 liable for his negligence therein.' And 
 in Terhune v. Mayor, etc., 88 N. Y. 
 250, the same principle was reaffirmed, 
 the court saying : ' But the plaintiff 
 claims that his action may be treated 
 as one to recover of the city damages 
 for his dismissal from office. It is a 
 sufficient answer to this claim that 
 the city did not dismiss him from his 
 office. The fire commissioners were 
 public officers, and not agents of the 
 city.' In Tone v. Mayor, etc., 70 
 
320 
 
 RESPONDEAT SUPERIOR. 
 
 1 66 
 
 than in strict conformity to the terms thereof." ^ And it 
 was held that this provision would prevent the enforce- 
 ment against the city of any claim by the contractors 
 based upon the negligence of the commissioners or their 
 servants in the prosecution of the work. If the case, so 
 far as it touches the question of negligence, rested simply 
 upon the liability of the city for the negligence of its 
 aqueduct commissioners, it would seem to be disposed of 
 by the case in the Court of Appeals cited above, and 
 many other authorities referred to in a previous chapter.^ 
 § 166. Method of appointment of board not decisive.— 
 The manner in which the members of a public board may 
 be appointed is not decisive of the question of municipal 
 responsibility for their acts. If the board is engaged in 
 the discharge of a municipal duty resting upon the cor- 
 poration in whose affairs it co-operates, the corporation 
 
 N. Y. 165, it was held that the city 
 was not responsible for the acts of 
 the board of revision and correction ; 
 that in the discharge of their duties 
 the members of that board acted as 
 independent public officers, engaged 
 in a public service. They were not 
 selected by the corporation, and it 
 could not control their acts. Their 
 powers were defined by the legislature, 
 and were not what might be properly 
 called 'corporate powers'; that, even 
 if they may be properly called 'city 
 officers,' they are charged with a pub- 
 lic service, and for any negligence or 
 omission therefor in the discharge of 
 their duties no action will lie against 
 the city, and the maxim of respondeat 
 superior has no application. And in 
 Ham V. Mayor, etc.. Id. 462, it was 
 held that the application of the doc- 
 trine of respondeat superior depended 
 upon the question whether the power 
 to discharge, direct, and control ex- 
 isted ; that to render the corporation 
 
 liable for the acts of officers or agents 
 they must necessarily have been its 
 agents or servants, selected or ap- 
 pointed, and liable to be removed by 
 a representative of the corporation for 
 the manner in which they should dis- 
 charge the trust reposed in them. 
 Applying this principle to the case 
 at bar, it would seem clear that neither 
 the aqueduct commissioners, nor their 
 employees or servants, sustained such 
 a relation to the city as would make 
 the city liable for their acts of neg- 
 ligence. The case of MulhoUand v. 
 Mayor, etc. (N. Y.), 20 N. E. Rep. 
 856, does not apply, for there it was 
 the city's engineer who required that 
 the additional work was to be done, 
 and it was for that act of the agent^of 
 the city that the city was held liable." 
 
 ' Laws of 1883, ch. 490, § 30. 
 
 ' Supra, % 40-.W 
 
 See also Appllton v. Water Com. 
 of N. v., 2 Hill 432,, 
 
i66 
 
 RESPONDEAT SUPERIOR. 
 
 321 
 
 will be responsible however the board may have been 
 created. The duty is that of the municipality, and the 
 neglect of the board in the discharge of the duty is 
 attributable to the corporation. This rule was recently 
 upheld in a case in the United States Supreme Court, in 
 which it was contended that the District of Columbia 
 was not liable for the negligent action of the street 
 commissioners who by statute were ultimately responsible 
 to Congress.^ 
 
 ' In District of Columbia v. Wood- 
 bury, 136 U. S. 450 (1889), where 
 Barnes v. District of Columbia, 91 U. 
 S. 540, was followed, Mr. Justice Har- 
 lan said : " It was contended in the 
 Barnes case that the board of public 
 works was not a department or sub- 
 ordinate agency of the District of 
 Columbia, but a Federal commission, 
 having exclusive power to make such 
 regulations as it deemed necessary for 
 keeping in repair the streets, avenues, 
 alleys, sewers, roads, and bridges com- 
 mitted to their control. This view 
 was rejected by the court. Although 
 that board was dependent upon both 
 Congress and the legislative assem- 
 bly of the District, and was the hand 
 and agent both of the United States 
 and of the District, it was held to be 
 the representative and a part of the 
 municipal corporation created by the 
 act of 1 87 1, and that its proceedings 
 and acts in repairing and improving 
 public streets were the proceedings 
 and acts of that corporation. The 
 District was held liable for the injury 
 there complained of upon the princi- 
 ple which the court declared to be 
 sound and supported by numerous 
 and well-considered adjudications in 
 this country and in England, that a 
 municipal corporation, as distinguish- 
 ed from a corporation organized for 
 private gain, is liable for injuries to in- 
 21 
 
 dividuals arising from negligence upon 
 its part in the construction of works 
 which it was authorized to construct 
 and maintain. And it was expressly 
 declared that it was not of the slight- 
 est consequence, in principle, by what 
 means the officers of the District were 
 ' placed in position, whether they are 
 elected by the people of the munici- 
 pality, or appointed by the President 
 or a Governor. The people are the 
 recognized source of all authority. 
 State and municipal ; and to this au- 
 thority it must come at last, whether 
 immediately or by a circuitous pro- 
 cess.' 91 U. S. 545 
 
 " It is said that the present corpo- 
 ration , as a corporation, has nothing to 
 do with the streets. That could have 
 been said with equal propriety in ref- 
 erence to the old corporation, when 
 the streets were under the control and 
 supervision of the board of public 
 works. Yet, that board was held to 
 be a part of the municipal corporation. 
 Its acts, within the scope of its powers, 
 were deemed the acts of the corpora- 
 tion. Its negligence, in the care of 
 streets, was held to be the negligence 
 of the municipal corporation of which 
 it was a part. So, in this case, the 
 commissioners, having full control of 
 the streets, are under a duty to keep 
 the public ways of the city in such 
 condition that they can be used with 
 
322 
 
 RESPONDEAT SUPERIOR. 
 
 167 
 
 § 167. Liability for negrligence of contractors. — It is a 
 general rule that a principal is not responsible for the 
 negligence of a contractor, or his servants, with whom he 
 has agreed for the performance of certain work.^ But the 
 rule is true to a limited extent only, for it does not release 
 one who is negligent in regard to duties which rest upon 
 him personally.** And it does not permit a municipal 
 corporation to escape from responsibility for neglecting 
 the duties that it owes the public.^ 
 
 reasonable safety. Their neglect in 
 that matter is the neglect of the mu- 
 nicipal corporation of which they are 
 the responsible representatives, al- 
 though subject to the paramount au- 
 thority of Congress.'' .... 
 
 ' " In order to render a person lia- 
 ble for the acts of another employed 
 by him to do a lawful act, the relation 
 of master and servant must exist. 
 Where such relation does not exist, 
 but the person employed is what is 
 called a ' contractor,' it is presumed 
 that the person employed was em- 
 ployed to do the act in a reasonable 
 and careful manner, and if he does 
 not do so, his employer is not answer- 
 able." Whittaker's Smith on Neg., 
 pp. 165, 166; see pp. 171, 172. Sher- 
 man & Redfield on Neg., § 298 ; 
 Wood on Master and Servant (2d ed.), 
 §§457-469. 
 
 « Fletcher V. Rylands, L. R. 3 H. L. 
 330 ; Tarry v. Ashton, L. R. i Q. B. 
 D. 314 (1876); Pickard v. Smith, 10 
 C. B. N. S. 470 ; Mersey Docks v. 
 Gibbs, L.R. i H.L. 93: supra, § 151. 
 See n. 3, infra. 
 
 ^ In Jefferson v. Chapman, 127 111. 
 438 (1889), Mr. Justice Baker says: 
 ■" The general rule is that the princi- 
 ple of respondeat superior does not 
 extend to cases of independent con- 
 tracts where the party for whom the 
 work is to be done is not the immedi- 
 
 ate superior of those guilty of the 
 wrongful act, and has no choice in 
 the selection of workmen, and no 
 control over the manner of doing 
 the work under the contract. 2 
 Dillon on Munic. Corp. (3d ed.), sec. 
 1028. 
 
 "But there are exceptions to this 
 general rule. One of these exceptions 
 is, where the contract directly requires 
 the performance of a work which, 
 however skillfully done, will be in- 
 trinsically dangerous. The principle 
 upon which this exception depends 
 for support is, that one who author- 
 izes a work which is necessarily dan- 
 gerous, and the natural consequence 
 of which is an injury to the person or 
 property of another, is justly to be re- 
 garded as the author of the resulting 
 injury. 2 Dillon on Munic. Corp. 
 (3d ed.), sec. 1029 ; City of Joliet v. 
 Harwood, 86 111. no. Another ex- 
 ception to the general rule, relieving 
 an employer from liability for an in- 
 jury occasioned by an independent 
 contractor, is, where the party caus- 
 ing the work to be done is under a 
 primary obligation, imposed by law, 
 to keep the subject-matter of the work 
 in a safe condition. The principle 
 upon which this exception is predi- 
 cated is, that where a duty is so im- 
 posed, the responsibility for its faith- 
 ful performance cannot be avoided. 
 
§ i67 
 
 RESPONDEAT SUPERIOR. 
 
 323 
 
 The obligation to keep streets in repair rests primarily 
 upon the corporation, and if work is to be done by a con- 
 tractor in a street, the municipality must see to it that 
 proper protection is given the public, and if the con- 
 tractor fails to perform his duty in this respect, the cor- 
 poration will be responsible for the resulting damage.^ 
 
 and that the party under such obliga- 
 tion cannot be relieved therefrom by 
 a contract made with another for the 
 performance of such duty." 
 
 See n. i, infra. 
 
 ' In Turner v. City of Newburgh, 
 109 N. Y. 301 (1888), Gray, J., says : 
 " The city cannot claim legal exemp- 
 tion from liability by reason of its hav- 
 ing contracted out the construction of 
 this sewer, and because it had not yet 
 accepted the work of the contractor. 
 The streets remained as much as ever 
 in the care and under the supervision 
 of its officials, and as the defendant's 
 officers had permitted the street at 
 that point to be open for public travel, 
 the city was not discharged from lia- 
 bility for accidents occurring through 
 some defective condition of the streets 
 by reason of its not having technically 
 or formally accepted the work under 
 the sewer contract ; provided, as in 
 all other like cases, the defect had ex- 
 isted a sufficient length of time to 
 charge its officers with knowledge of 
 the existence of the defect." 
 
 In Robbins v. Chicago, 4 Wall. 657 
 (1866), Mr. Justice Clifford says: 
 ■"Where the obstruction or defect 
 caused or erected in the street is 
 purely collateral to the work con- 
 tracted to be done and is entirely the 
 result of the wrongful acts of the con- 
 tractor or his workmen, the rule is 
 that the employer is not liable ; but 
 where the obstruction or defect which 
 •occasioned the injury results directly 
 from the acts which the contractor 
 
 agrees and is authorized to do, the 
 person who employs the contractor 
 and authorizes him to do these acts is 
 equally liable to the injured party." 
 
 Circleville v. Neuding, 41 Ohio St. 
 465 (1885), where it appeared that a 
 horse fell into a cistern in process of 
 construction for a city by contractors 
 and there were no sufficient guards to 
 prevent such accidents, the court said : 
 " It is contended on behalf of the city 
 that it is not liable for the loss of a 
 horse because the cistern was in pro- 
 cess of construction by an independent 
 contractor when the accident occur- 
 red. The relation between the city 
 and Barndt was clearly that of em- 
 ployer and independent contractor, 
 and the rule is, generally, that for in- 
 juries occurring in the progress of 
 work carried on by parties in that re- 
 lation, the contractor alone is liable. 
 But this liability is limited to those in- 
 juries which are collateral to the work 
 to be performed, and which arise from 
 negligence or wrongful act of the con- 
 tractor or his agents or servants. 
 
 " Where, however, the work to be 
 performed is necessarily dangerous, 
 or the obligation rests upon the em- 
 ployer to keep the subject in a safe 
 condition, the rule has no application. 
 This distinction has been taken in this 
 State in a number of cases. Carman 
 V. Railroad Co., 4 Ohio St. 399 ; Tif. 
 fin V. McCormack, 34 Id. 638 ; Hughes 
 V. Railroad Co., 61 N. Y. 178 ; Pren- 
 tiss V. Boston, 1 1 2 Mass. 43 ; Balti- 
 more v. O'Donnell, 53 Md. no; Lo- 
 
324 
 
 RESPONDEAT SUPERIOR, 
 
 §i68 
 
 § i68. When contractors are alone liable. — But where 
 the negligence is that of a contractor or a servant entirely 
 under his control, and relates to a matter in regard to 
 which the corporation is under no special obligation, 
 then the liability will not extend beyond the servant and 
 his employer.' It must be admitted, however, that the 
 
 gansport v. Dick, 70 Ind. 65 ; Craw- 
 fordsville v. Smith, 79 Id. 308 ; Rob- 
 bins V. Chicago, 4 Wall. 657. 
 
 " In this case the cistern contracted 
 for was to be built in a street, and to 
 be eighteen feet wide and twenty feet 
 deep. Such an excavation in a street, 
 unless protected to guard persons and 
 animals using the street from falling 
 into it, was necessarily dangerous. 
 The city was under the statutory ob- 
 ligation at the time of the accident to 
 keep its streets open, in repair, and 
 free from nuisance, and it could not 
 cast this duty upon a contractor, so 
 as to relieve itself from liability to one 
 who should receive an injury. It is 
 primarily liable for an injury resulting 
 from such dangerous place in a street. 
 If it has required the contractor to as- 
 sume the risk of such damage, it may 
 have a remedy against him. But the 
 public, in the use of the streets, may 
 rely upon the legal obligations of the 
 city to keep them free from danger- 
 ous places, or, if such places become 
 necessary to be made in the course of 
 an improvement or work necessary or 
 proper for the city to do, that it shall 
 so guard them that no injury shall re- 
 sult in the ordinary use of the street.'' 
 
 See Haniford v. Kansas City (Mo.), 
 15 S. W. Rep. 758 ; Plumb v. Kansas 
 City, 84 Mo. 112; Russell v. Colum- 
 bus, 74 Mo. 480, 41 Am. Rep. 325 
 (1881); Welsh v. St. Louis, 73 Mo. 
 71 ; Hincks v. Milwaukee, 46 Wis. 
 565, 32 Am. Rep. 735 ; Southwell v. 
 Detroit, 74 Mich. 438 (1889); Brooks 
 
 V. Somerville, 106 Mass. 271 (1871); 
 Fowler v. Strawberry Hill, 74 la. 644, 
 38 N. W. Rep. 521 ; Mayor v. Wald- 
 ner, 49 Ga. 316; Wilson v. Wheeling, 
 19 W. Va. 323 (1882); Scammon v. 
 Chicago, 25 111. 424 (1861); Chicago 
 V. Martin, 49 111. 241 ; Todd v. Chi- 
 cago, 18 111. App. 565 (1886); Grant 
 V. Stillwater, 35 Minn. 242, 28 N. W. 
 Rep. 660 ; St. Paul v. Seitz, 3 Minn. 
 297 ; Indianapolis v. Doherty, 71 Ind. 
 5 ; Baltimore v. O'Donnell, 53 Md. 
 1 10, 36 Am. Rep. 395 ; Blake v. Fer- 
 ris, S N. Y. 48; Storrs v. Utica, 17 
 N. Y. 104 ; Buffalo, etc. Tp. Co. v. 
 Buffalo, 58 N. Y. 639 ; Vogel v. New 
 York, 92 N. Y. 10; Harrisburgh v. 
 Taylor, 87 Pa. 216 ; Painter v. Pitts- 
 burgh, 46 Pa. 221 ; Pearson v. Zable, 
 78 Ky. 170; Dillon on Munic. Corp., 
 §§ 1027-1031. 
 
 ' Harvey v. Hillsdale (Mich.), 49 
 N. W. Rep. 141 (1891). In this case 
 it appeared a ditch had been dug by 
 contractors into the grounds of a col- 
 lege for the purpose of placing a hy- 
 drant ; the ditch was left unguarded, 
 and the injury resulted. It was held 
 that there was no liability on the part 
 of the city. See Chicago v. Robbins, 2 
 Black 418, 4 Wall. 657 ; Sweet v. Glo- 
 versville, 12 Hun 302; Treadwell v. 
 New York, i Daly 123; Hexamer v. 
 Webb, loi N.Y. 377; Erie School Dist. 
 V. Fuess, 98 Pa. 600, 42Am. Rep. 627 ; 
 Storrs V. Utica, 17 N.Y. 104; Van 
 Winter v. Henry County, 61 la, 684 
 (1883); Allen V. Hayward, 7 Q- B. 
 960; Butler V. Hunter, 7 H. & N. 
 
§i68 
 
 RESPONDEAT SUPERIOR. 
 
 325 
 
 lines between the cases are not always distinct, and it is 
 often difficult to tell whether or not a duty resting upon 
 a city has been violated. In a recent case in New York, 
 for instance, it has been held that one who was injured 
 while using a highway could not recover from the city 
 because of the negligence of a servant of a contractor 
 in firing a blast which frightened his horse.^ The 
 
 826; Sherman & Redfield, §§ 168, 
 298. 
 
 ' Herrington v. Lansingburgh, no 
 N. Y. 145 (1888), Earl, J., says : " The 
 defendant is a municipal corporation, 
 and, -by its charter, is clothed with 
 power to cause the construction of 
 sewers. On the 23d day of October, 
 1878, it made and entered into a con- 
 tract in writing with Broderick and 
 Ellis for the construction of a sewer 
 in and through one of its streets called 
 State street. The specifications for 
 the work provided that all damages 
 arising from blasting to be done in 
 the construction of the sewer should 
 be paid for by the contractors. State 
 street crossed Market street at right 
 angles. On the 7th day of December, 
 1878, the plaintiff came into the vil- 
 lage with a team, and tied his horses 
 to a post in Market street about fifteen 
 feet from State street, in front of a 
 grocery, and went into the grocery, 
 and while there the contractors fired 
 a blast in State street which fright- 
 ened the team. The plaintiff rushed 
 from the grocery, and while attempt- 
 ing to control the team was severely 
 injured. The place where the blast 
 was fired was about 200 feet from 
 Market street, and the team where it 
 was fastened in Market street was 
 not visible from the place of the blast- 
 ing. The claim of the plaintiff is that 
 the defendant is responsible to him 
 for the injury he sustained in conse- 
 quence of the frightening of the horses 
 by the blast. 
 
 " At the place where the horses 
 were fastened the street was in per- 
 fect condition, and the horses did not 
 become restless or frightened from 
 anything existing in the street, and 
 the accident was in no way caused by 
 any imperfect condition of the street, 
 but simply by noise resulting from the 
 blast. 
 
 " If there was any culpable careless- 
 ness which caused the injury to the 
 plaintiff, it was that of the contractors. 
 They had entire control of the work 
 and the manner of its performance. 
 They could choose their own time for 
 firing the blasts, and select their own 
 agents and instrumentalities. They 
 could make the charges of powder 
 large or small, and they could, in 
 some degree, smother the blasts so 
 as to prevent falling rocks and much 
 of the noise of the explosion ; or they 
 could carelessly omit all precautions, 
 and for the consequences of their 
 negligence they alone would be re- 
 sponsible. If it was a prudent thing 
 to notify persons in the vicinity of the 
 blast before it was fired, then the con- 
 tractors should have given the notice ; 
 but the duty to give it did not devolve 
 upon the village. And for these con- 
 clusions the cases of Peck v. Mayor, 
 etc., 8 N. Y. 222; Kelly v. Mayor, 
 etc., II Id. 432, and McCafferty v. 
 Spuyten Duyvil, etc. Railroad Com- 
 pany, 61 Id. 178, are ample author- 
 ity. 
 
 " It is conceded by the learned 
 counsel for the appellant that if the 
 
326 
 
 RESPONDEAT SUPERIOR. 
 
 §i68 
 
 opinion in the case would seem to justify the conclusion 
 that no duty beyond keeping the street itself in proper 
 condition rested upon the city in exercising care to pre- 
 vent injuries to persons using its streets — a conclusion not 
 easily reconcilable with other authorities in this and 
 other courts,* and one that cannot be supported upon 
 principle where the common-law rule of responsibility 
 exists.* 
 
 Where the corporation exercises control over the man- 
 ner of the work or employs its own servants, it will be 
 answerable for negligence in respect to the matters in 
 regard to which it assumes to act.' But not for negli- 
 
 plaintiff had been hit by a fragment 
 of rock thrown by the blast, the de- 
 fendant would not have been and the 
 contractors would alone have been 
 responsible. So, too, if a fragment of 
 rock had struck one of the horses, or 
 had fallen or passed near them, and 
 thus had frightened them, causing the 
 injury to the plaintiff within the au- 
 thorities cited, the defendant would 
 not have been responsible. And for 
 precisely the same reason no respon- 
 sibility rests upon it, because the team 
 was frightened by the noise of the 
 explosion. A rule which would cast 
 responsibility upon the defendant for 
 injuries resulting from the noise of 
 the explosion, and exempt it from re- 
 sponsibility for injuries caused by 
 fragments of rock thrown by the 
 explosion, would rest upon no rational 
 basis and require distinctions too fine 
 for the practical administration of jus- 
 tice." It is noticeable that Danforth, 
 J., dissented, and that Ruger, Ch. J., 
 did not vote in this case. 
 
 See Kelly v. New York, 1 1 N. Y. 
 432. 
 
 ' In Brusso v. Buffalo, 90 N. Y. 679 
 (1882), it was said: "The city was 
 under an absolute duty to keep its 
 
 streets in a safe condition for public 
 travel, and was bound to exercise 
 reasonable diligence and care to ac- 
 complish that end, and when it caused 
 this excavation to be made in the 
 street it was bound to see that it was 
 carefully guarded, so as to be reason- 
 ably free from danger to travelers 
 upon the street. It is not absolved 
 from its duty and its responsibility 
 because it employed a contractor to 
 make the excavation. This is settled 
 by a long line of decisions in this and 
 other States." 
 
 See also Turner v. Newburgh, 109 
 N. Y. 301 ; Vogel v. New York, 92 
 N. Y. 10 (1883). And in reference 
 to accidents from blasting, Deane v. 
 Randolph, 132 Mass. 475; Murphy 
 v. Lowell, 128 Mass. 396, 35 Am. 
 Rep. 381 ; Joliet v. Seward, 99 111. 
 267, 86 id. 402; Joliet v. Harwood, 
 86 111. no, 39 Am. Rep. 17 ; Logans- 
 port V. Dick, 70 Ind. 65, 36 Am. 
 Rep. 166. 
 
 » Supra, % 97. 
 
 ' Pack V. New York, 8 N. Y. 222 ; 
 Kelly V. New York, 11 N. Y. 432 ; 
 Sherman & Redfield, |§ 166, 171; 
 Dillon on Munic. Corp., § 1028. 
 
 In Pennsylvania it seems a city 
 
§i68 
 
 RESPONDEAT SUPERIOR. 
 
 327 
 
 gence relating to matters beyond its control. Thus in a 
 recent English case, where an inspector of streets of the 
 city of Liverpool merely directed which streets should be 
 watered, and the servant of the contractor who had taken 
 the contract of watering the city streets was negligent in 
 his management of the cart which the city owned, it was 
 held that the corporation was not responsible.^ 
 
 is not liable, even although its streets 
 are made dangerous. In the case of 
 Susquehanna Depot v. Simmons, 112 
 Pa. 384 (1886), Mr. Justice Gordon 
 says : " It is settled that the defendant 
 had the" right to grant the license to 
 dig the ditch complained of; in this 
 it did nothing unlawful. How, then, 
 is it responsible for the negligent act 
 of Florence ? It certainly cannot be 
 contended that its responsibility would 
 be greater in a case such as this than 
 if Florence had been acting under a 
 contract with the borough instead of 
 Dr. Smith. Yet under such a con- 
 tract it would not have been liable. 
 His employment was independent of 
 the control and direction of the per- 
 son with whom he had contracted. 
 He was in the lawful possession of the 
 street in which the water-pipes were 
 to be laid, and, as was said in The 
 City of Erie v. Caulkins, 4 Norris 247, 
 the borough could not fill up the 
 trench which he dug, or erect barriers 
 which he might not tear down if they 
 obstructed his work. The authorities 
 supporting the principle here stated 
 are many, and when we refer to 
 Painter v. The Mayor, 10 Wr. 213; 
 Hunt V. The Pennsylvania R.R. Co., 
 I P. F. S. 475 ; Allen v. Whillard, 7 
 Id. 374, and Reid v. The City, 29 Id. 
 300, we have by no means exhausted 
 the list. The counsel for the defend- 
 ants in error lay much stress upon 
 the case of the City of Allegheny v. 
 Campbell, 11 Ont. 535, and profess 
 
 to think that it rules the contention in 
 hand. 
 
 " It does nothing of the kind, and 
 it is wide of the point in controversy. 
 In that case the plaintiff occupied the 
 place of lessee of the defendant, inas- 
 much as he paid the city wharfage 
 for the use of the landing, and the 
 city was bound to keep it in proper 
 repair. In this the position of the 
 parties was that of landlord and ten- 
 ant under a lease containing a cove- 
 nant on the part of the former to keep 
 the premises in repair, in which case 
 the landlord would, of course, be liable 
 to the tenant for damages resulting 
 from a breach of such covenant. The 
 like remarks fit the case of Pittsburgh 
 V. Grier, 10 Harris 54. So, a like 
 reasoning may be applied to distin- 
 guish the case in hand from that of 
 Bom V. The Plank Road Co., 12 W. 
 N. C. 283, for there the corporation 
 collected tolls for the use of its road, 
 hence it was rigidly held to such an 
 oversight of its way as to guard trav- 
 elers from obstructions of every kind, 
 whether occasioned by its own act or 
 that of a stranger." 
 
 ' Jones V. Corporation of Liverpool, 
 L. R. 14 Q. B. D. 890 (1885), Grove, 
 J., says: "The facts of the present 
 case are very like those in Quarman 
 v. Burnett, 6 M. & W. 499. The 
 water-cart belonged to the defendants, 
 and the driver and horse were hired 
 by them from Mrs. Dean. In Quar- 
 man V. Burnett, 6 M. & W. 499, the 
 
328 
 
 RESPONDEAT SUPERIOR. 
 
 §169 
 
 § 169. Acts of subordinates to be within scope of author- 
 ity.—A municipal corporation is only liable for the acts 
 of its employees when they are within the scope of the 
 authority conferred upon them by the corporation.^ And 
 to show a breach of duty by the corporation, it must ap- 
 pear that its representative was engaged in the discharge 
 of a duty which rested upon the municipality.* When 
 
 carriage belonged to the defendants, 
 who hire the horses and a driver from 
 a job-mistress ; and the court held 
 that the defendants were not liable 
 for injury sustained by the plaintiff 
 through the negligence of the driver. 
 In the present case the negligence 
 must be that of the driver of the 
 water-cart. The only valid distinc- 
 tion that I can see between the two 
 cases is that here the defendants' in- 
 spector directed the driver what streets 
 to water ; but that fact does not in 
 any way make the inspector guilty of 
 negligence, or responsible for the act 
 of negligence which was committed. 
 If he had interfered when the accident 
 happened by directing the driver of 
 the cart what to do, the case would 
 be different, but he did no more than 
 point out the streets to be watered." 
 
 ' " In all cases, in older to charge a 
 municipal corporation with liability 
 for the tortious acts of its servants or 
 officers, it must appear either that 
 such acts were expressly authorized by 
 the corporation, or that they were done 
 bona fide in pursuance of a general 
 authority to act for the corporation in 
 the particular matter complained of. 
 if the act of an officer or his subordi- 
 nate is done in the attempted per- 
 formance of a duty laid by the law 
 upon him and not upon the munici- 
 pality, then the municipality is not 
 liable for his negligence therein." 
 
 Wood on Master and Servant, § 466. 
 
 See Waller v. Dubuque, 69 la. 541 
 (1886); Alcorn v. Philadelphia, 44 
 Pa. 348 ; Baltimore v. Musgrave, 48 
 Md. 272, 30 Am. Rep. 458 (1877); 
 Sherman v. Grenada, 51 Miss. 186 
 (1875); Little V. Port Talbot Co. (The 
 Apollo), 65 L. T. 590 (1891); Sher- 
 man & Redfield on Neg., §299; 
 Whittaker's Smith on Neg., p. 122; 
 Dillon on Munic. Corp., § 974. 
 
 2 In New York & Brooklyn S. M.& 
 L. Co. V. Brooklyn, 71 N. Y. 580 (1878), 
 Church, C. J., said : " It has been re- 
 peatedly held that a municipality is not 
 liable for the acts or omissions of an 
 officer in respect to a duty specifically 
 imposed which is not connected with 
 his duties as agent of the corporation. 
 Owens V. Missionary Soc. of M. E. 
 Church, II N. Y. 392 ; People v. 
 Sup'rs Chenango Co., Id. 571 ; Rus- 
 sell V. Mayor, etc. of the City of New 
 York, 2 Den. 461 ; Martin v. Mayor, 
 etc. of Brooklyn, i Hill 545. The 
 general rule may be stated to be that 
 a municipal corporation is only liable 
 for the acts or omissions of officers in 
 the performance of duties imposed 
 upon the principal. It is not alleged 
 in the complaint that the city of 
 Brooklyn owns or has any interest in 
 Gowanus Canal, nor is it alleged that 
 it is a public highway, nor are we re- 
 ferred to any statute or record show- 
 ing that such is the fact, nor that the 
 improvement was originally a public 
 work. The work to be done, as we 
 
§i70 
 
 RESPONDEAT SUPERIOR. 
 
 329 
 
 an employee is negligent in his manner of performing 
 such a duty and damage results, the corporation is liable, 
 as is demonstrated by numerous authorities cited through- 
 out this work. But for other torts of its officers a munic- 
 ipality is not generally responsible.^ 
 
 § 170. Defense of co-employment. — The defense of co- 
 employment has been successfully raised by a municipal 
 corporation, but only where the co-employment has been 
 in the same department of public work. Thus in Maine 
 it has been held^ that the city of Portland was not liable 
 to a laborer who was injured during the construction of 
 a public sewer by the carelessness of the overseer of the 
 
 have seen, was not a corporate work, 
 but mainly for the benefit of private 
 owners. It was directed to be done 
 by a statute having no relation to cor- 
 porate duties. The work was com- 
 menced and nearly completed by in- 
 dependent officers appointed by the 
 State, for whose acts the city was not 
 responsible, and we think the fair 
 construction of the acts of 1869 and 
 1 87 1 is that the legislature merely in- 
 tended a substitution of the common 
 council for the commissioners, and 
 that both were agents of the State 
 and not of the city. I think the 
 case falls within the principle of Rus- 
 sell V. The Mayor, 2 Denio 461, and 
 Martin v. Mayor, i Hill 545, and 
 therefore concur with the court below 
 that the defendant is not liable." 
 
 A city has been held liable for the 
 neglect of its officers to collect assess- 
 ments when there was a duty resting 
 upon the city to make the collection — 
 Clayburgh v. Chicago, 25 111. 535 
 (1861) — and for neglecting to procure 
 funds to carry out a contract, Baldwin 
 V. Oswego, 2 Keyes (N. Y.) 132 (1865). 
 See Commonwealth Bank v. New 
 York, 43 N. Y. 184. But compare 
 
 Reock v. Newark, 33 N. J. L. 129 
 (1868). 
 
 ' Casparyv. Portland (Or.), 19 Or. 
 496, 24 Pac. Rep. 1036 (1890); Rich- 
 mond v. Long's Adm'r, 17 Gratt. 375 
 (1867); Chandler v. Bay St. Louis, 57 
 Miss. 327 (1879); Brown v. Cape Gi- 
 rardeau, 99 Mo. 377 ; Elliott V. Phila- 
 delphia, 75 Pa. 347, 15 Am. Rep. 591 
 (1874); Askew V. Hale Co., 25 Am. 
 Rep. 730. See Durkee v. Kenosha, 
 59 Wis. 123, 48 Am. Rep. 480 (1883); 
 Everson v. Syracuse, 100 N. Y. 577 
 (1885); Mechem on Public Officers, 
 §664. 
 
 « Conley v. Portland, 78 Me. 217, 3 
 Atl. Rep. 658 (1886). In the opinion 
 in the case it was said : " It is settled 
 law in this State that an employer is 
 not responsible to an employee for an 
 injury received through the careless- 
 ness of a fellow laborer, and it is 
 equally well settled that the foreman, 
 superintendent, or overseer of a job 
 of work is not on that account to be 
 regarded as other than a fellow la- 
 borer with those who are at work 
 under him. Such an employment 
 does not elevate him to the dignity 
 of a vice-principal." 
 
33° 
 
 RESPONDEAT SUPERIOR. 
 
 170 
 
 work, and that the negligence of a foreman of a gang of 
 men who were digging a trench for a city would relieve 
 the corporation from liability.^ In a recent case in 
 
 ' In Dube v. Lewiston, 83 Me. 211, 
 22 Atl. Rep. 112 (1891), Whitehouse, 
 J., says : " The plaintiff was engaged 
 with Edward Cloutier and five other 
 laborers in digging a trench for a pipe 
 sewer about 100 feet in length, on 
 Ash street, in Lewiston. No shoring 
 was employed to support the sides of 
 the trench, and when the excavation 
 had reached a depth of 8 or 9 feet 
 one side caved in, and a large quan- 
 tity of earth fell upon the plaintiff and 
 injured him. In this action against 
 the city to recover damages, the jury 
 found in favor of the plaintiff. 
 
 "The construction of sewers author- 
 ized by the city council was under the 
 general supervision of the street com- 
 missioner, but the crew in which the 
 plaintiff was at work, at the time of 
 the injury, was under the immediate 
 direction of Edward Cloutier, who 
 was foreman in charge of that par- 
 ticular job, the street commissioner 
 incidentally inspecting the work from 
 time to time as it progressed. In the 
 city tool-house, 30 rods distant, was 
 deposited a quantity of lumber de- 
 signed to be used for shoring in the 
 construction of sewers, and suitable 
 and available for that purpose. Clou- 
 tier had full knowledge of this. He 
 had been directed by the street com- 
 missioner to pile the lumber there to be 
 used for that purpose when required. 
 
 " At the time of the accident the 
 street commissioner was personally 
 engaged in the work of paving in 
 another part of the city, and the op- 
 erations on Ash street were intrusted 
 to Cloutier. The commissioner had 
 no special knowledge of the character 
 of the road-bed or the nature of the 
 
 soil at that point. Nothing had been 
 disclosed, before the commencement 
 of the work, indicating a necessity 
 for any mechanical contrivance to 
 protect the workmen against falling 
 earth. The location and erection of 
 any such structures necessarily de- 
 volved upon the workmen, acting 
 under the direction of their foreman, 
 as the digging progressed. The duty 
 of determining when the exigency of 
 the situation required such protection 
 had not been assumed by the street 
 commissioner. He did not undertake 
 to give this piece of work his imme- 
 diate supervision, and did not have the 
 personal knowledge of its character 
 required to form a correct judgment 
 upon that question. The prosecution 
 of this kind of work was not fraught 
 with any peculiar perils not well un- 
 derstood by the plaintiff and Cloutier. 
 If there were exceptionally dangerous 
 conditions attaching to the soil on 
 Ash street, they were open to the 
 observation and knowledge of expe- 
 rienced workmen, or ascertainable 
 by the exercise of reasonable care and 
 attention on their part. The com- 
 missioner discharged his duty when 
 he assigned to the work an experi- 
 enced and competent foreman, and 
 furnished him with suitable and suf- 
 ficient materials for any appliances 
 necessary for the safe conduct of the 
 work. The use and application of 
 the materials formed a part of the 
 duty of the workmen. Kelley v. Nor- 
 cross, 121 Mass. 508; Seigler v. Day, 
 123 Mass. 152 ; Floyd v. Sugden, 134 
 Mass. 563; Clark v. Soule, 137 Mass. 
 380 ; McDermott v. Boston, 133 Mass. 
 349- 
 
§i70 
 
 RESPONDEAT SUPERIOR. 
 
 331 
 
 Massachusetts, however, damages were recovered for an 
 injury received by a boy who was working upon a public 
 bridge and was hurt by the fall of a derrick through the 
 negligence of a co-servant.^ Where employees are en- 
 gaged in different work the rule does not apply, and 
 recovery has been allowed by a fireman in the employ of 
 the city for injuries received because of a defect in a city 
 street.* And it has been held that a laborer who is 
 
 "The evidence discloses no omis- 
 sion of duty on the part of the street 
 commissioner which would render the 
 city liable in this action ; and, if Clou- 
 tier's failure to place shoring against 
 the side of the trench where the earth 
 fell can be deemed negligence, it was 
 clearly the negligence of a fellow- 
 servant. The plaintiff and Cloutier 
 were employed by the same master, re- 
 ceived their compensation from the 
 same common source, and were sub- 
 ject to the same control. They were 
 not only engaged in the same general 
 business and common employment, 
 but were employed in the same kind 
 of work and laboring on the same sec- 
 tion. They were occupied in service 
 of such a kind that each could rea- 
 sonably be expected to foresee that he 
 would be exposed to the risk of in- 
 jury in case of negligence on the part 
 of the other. Neither was • Cloutier 
 required to perform any duty which 
 legally belonged to the province of 
 the master. ' The true test, it is be- 
 lieved, whether an employee occupies 
 the position of a fellow-servant to 
 another employee, or is the repre- 
 sentative of the master, is to be found, 
 not from the grade or rank of the 
 offending or of the injured servant, 
 but is to be determined by the 
 character of the act being performed 
 by the offending servant, by which 
 another employee is injured; or, in 
 
 other words, whether the person 
 whose status is in question is charged 
 with the performance of a duty which 
 properly belongs to the master.' Mc- 
 Kinney, Fel. Ser\'., p. 53, sec. 23. 
 See also Thomp. Neg. 1006-1031 ; 
 Beach, Contrib. Neg., p. 338 ; Sher. 
 and R. Neg., sec. 109; Peer, Neg., 
 sec. 204 ; Cooley, Torts, p. 641, note 
 I." 
 
 ' Doherty v. Braintree, 148 Mass. 
 495 (1889). The point is not alluded 
 to in the opinion in this case. 
 
 = Coots V. Detroit, 43 N. W. Rep. 
 17 (1889). In this case Morse, J., 
 says : " It may be true that the fire 
 commission could not sue the board 
 of public works or the city of Detroit 
 for injuries to the engine, or the horses 
 drawing the same, occasioned by a de- 
 fect in the street. But the plaintiff, 
 by entering the service of the fire de- 
 partment, does not lose his personality 
 or his manhood ; he does not become 
 a mere machine, a block of wood, nor 
 yet a mere animal. He cannot be 
 considered in any sense the property 
 of the fire commission. And the fire 
 commission is not suing the city for 
 damages he has received, as it would 
 have to sue if an action was main- 
 tainable for the loss of a horse or in- 
 jury to an engine. The plaintiff for 
 himself, and in his own right, and in- 
 dependent of his relations to the fire 
 department, is suing for a personal 
 
332 
 
 RESPONDEAT SUPERIOR. 
 
 § 170 
 
 employed to place conduit pipes in a trench already dug 
 by the city authorities is not a co-employee with those 
 
 injurj'to himself caused by the neglect 
 of the city. If the theory of the re- 
 quest asked be good law, then there is 
 no person in the employ of the city, 
 or any of its agencies, nor any official, 
 from mayor down to constable, who 
 can recover for injuries caused by a 
 defective street while he is in its em- 
 ployment, or in the discharge of his 
 official duties, even if his employment 
 or the duties of his office have no con- 
 nection whatever with or relation to 
 the care and control of the streets of 
 the city. For instance, a constable, 
 while walking in the streets for the 
 purpose of serving process, would be 
 without relief if he should be injured 
 by a defect in the same ; and a per- 
 son employed to sweep the city-hall 
 or scrub its steps, if sent through the 
 streets for a broom or brush to work 
 with, would be a fellow-servant of the 
 officials and employees whose duty it 
 is to keep the streets in good repair. 
 The doctrine of fellow-servant has 
 never been carried to this extent by 
 any court. 
 
 " It is said that this is the first in- 
 stance of an attempt to hold a mu- 
 nicipality liable for an injury to a fire- 
 man in the performance of his duties 
 under his employment. This is a 
 mistake. In the case of Palmer v. 
 City of Portsmouth, 48 N. H. 265, 
 this question was involved, and it was 
 held that the principle 'applied by 
 the courts in the case of the servants 
 of railroad companies who have sus- 
 tained injuries in the course of their 
 employment, does not seem to us at 
 all applicable to the case of injuries 
 sustained from defects of highways. 
 The liability for the damages sus- 
 tained in such cases is imposed by 
 statute, which provides that in case 
 
 any special damage shall happen to 
 any person by reason of obstructions, 
 etc., he shall recover his damage in an 
 action against the town. No excep- 
 tion is made, and we can see no rea- 
 son for making any in such case.' Id. 
 267. Our statute giving damages to 
 any person injured by reason of streets 
 and highways not being in good re- 
 pair, or in a condition reasonably safe 
 and fit for travel, through the negli- 
 gence of the city or township, makes 
 also no exception of persons on ac- 
 count of their occupations ; and there 
 is no more reason in the law or in 
 good sense why an engfine-driver in 
 the employ of the fire department, 
 whether in or out of the line of his 
 employment at the time of the in- 
 jury, should suffer such injury without 
 redress or recompense under the 
 statute, from and by reason of the 
 city's negligence in the care of its 
 streets, than should any other citizen. 
 A fireman takes, like every other em- 
 ployee, certain risks by reason of his 
 employment. He may be injured by 
 his fellow-firemen, by falling walls or 
 buildings, or by a score of accidents 
 that are liable to happen at a fire or 
 going to or from one. But the injury 
 he receives from the negligence of the 
 city in the care of the streets through 
 which his employment takes him, is 
 no more one of the risks he voluntarily 
 takes in his employment than would 
 be an injury that he might receive from 
 the negligence or wrong of some one 
 of his fellow-citizens of Detroit, as he 
 was passing along the street. If this 
 hole in the street, for instance, had 
 been an excavation made by some 
 abutting lot owner on the street, and 
 negligently left open, is there any 
 sound reason why the plaintiff could 
 
§i70 
 
 RESPONDEAT SUPERIOR. 
 
 333 
 
 who have prepared the trench, and his administratrix 
 may recover from the city if he is sent into it when it is 
 not safe, for injuries causing his death.' 
 
 not have recovered from such lot 
 owner damages for his injuries, if such 
 injuries were occasioned through no 
 fault of plaintift's? The answer is 
 obvious. The fact that plaintiff was 
 a fireman would weigh no more in 
 such case than if he was an express- 
 wagon driver, or of any other occupa- 
 , tion." And Champlin, J., says in the 
 same case : " It is a proper use of the 
 streets of a city to pass over them 
 with a fire-engine in going to a fire, 
 and they should be kept in such rea- 
 sonable repair as will be safe and fit 
 for the purpose of this kind of travel, 
 as well as any other that the public 
 require. The service demanded of 
 those having the management of ap- 
 paratus for the extinguishment of fires 
 is that they shall respond promptly, 
 whether at night or by day, to alarms 
 of fire, and get to the scene of the 
 conflagration with such dispatch as is 
 reasonable and consistent with the 
 safety of the public and themselves. 
 They have a right to expect that the 
 statutory duty enjoined upon the city 
 will be observed. They take all the 
 risks incident to their employment, 
 without any remedy over against the 
 city in case of injury, unless such in- 
 jury is occasioned by a neglect of duty 
 positively and specifically enjoined 
 upon the municipality by statute. 
 The risks of the employment assumed 
 by them are sufficiently numerous and 
 dangerous, without adding thereto 
 the risk of defective streets, which the 
 city is enjoined to kepp in repair. As 
 to such streets, their rights are no 
 greater and no less than those of any 
 other person having a right to use 
 such street." See Turner v. Indian- 
 
 apolis, 96 Ind. ,51 (1884) ; supra, % 31. 
 See as to what is common employ- 
 ment : Johnson v. Lindsay, 65 L. T. 
 97H.L. (1891). 
 
 ' In Wanamaker v. Rochester, 17 
 N. Y. Supp. 321 (1892), Macomber.J., 
 says : " The plaintiff, as the adminis- 
 tratrix of the estate of Joseph Wana- 
 maker, deceased, recovered at the 
 circuit the sum of $5,000 damages 
 against the defendant by reason of its 
 negligence, whereby, through the 
 caving in of a trench in which the de- 
 ceased was working, the latter lost 
 his life. The decedent was in the 
 employmentof the water-works repair 
 department of the city of Rochester, 
 and was engaged in the occupation of 
 connecting and laying water-pipes and 
 doing general repairs. Under the di- 
 rection of a foreman of a gang of men 
 in the employment of the city, he was, 
 on the 2d day of June, 1890, sent to 
 do certain work on an extension of a 
 water-pipe in a trench on North 
 Union street, in that city. This 
 trench had been dug by a firm of con- 
 tractors known as 'Thomas Oliver 
 & Sons,' under a contract with the 
 city. The trench was upwards of 300 
 feet in length, 4X feet deep, and 2^ 
 feet in width. The plaintiffs intes- 
 tate, while engaged in knocking out 
 the dead end of a pipe already in the 
 trench (a process which is described 
 as removing the temporary filling of 
 the end of a pipe, so that an exten- 
 sion may be made), was crushed by 
 the caving in of the earth upon him. 
 It is argued by the learned counsel 
 for the defendant that there was no 
 liability upon the city, because the 
 deceased assumed the risks and perils 
 
334 
 
 RESPONDEAT SUPERIOR. 
 
 171 
 
 § 171. Action over by a municipality. — A municipal cor- 
 poration is frequently called upon to respond in damages 
 for the negligence of contractors and lot owners in caus- 
 ing defects in highways, and although such a cor- 
 poration is liable to one of the public by reason of its 
 breach of the duty due him,' yet it may recover from 
 
 attending the work in which he was 
 employed. The statement of the 
 general principle applicable to em- 
 ployment of persons engaged in work 
 of this description by municipal cor- 
 porations is not to be disputed. But 
 the facts disclosed in this appeal do, 
 as it seems to us, remove the case 
 from the category of those falling 
 within that rule. When the deceased 
 approached this place, and got into 
 the trench, he had not, by previous 
 working in the place or otherwise, ob- 
 tained any information which would 
 lead him to suspect that the earth was 
 likely to cave in, or to charge him 
 with notice of any danger. He came 
 there with a gang of men under the 
 direction of a foreman, in the employ 
 of the authorities of the water-works 
 department of the city of Rochester, 
 not to prepare a trench for the pipes, 
 but to place in the trench, which the 
 city had already undertaken to have 
 prepared for their work, conduit 
 pipes for the flow of water. Under 
 these circumstances, it was the duty 
 of the city to afford to its workmen 
 a trench which should be proper and 
 safe for the work which the employee 
 was required to do. The circum- 
 stance that Thomas Oliver & Sons, 
 who may, in a certain sense, be 
 deemed independent contractors, 
 made this ditch, is unimportant, be- 
 cause the deceased was not in the 
 employ of these independent con- 
 tractors, but of the city itself. Nor 
 can the point be sustained that the 
 city may escape liability because 
 
 Smith, the foreman of the gang of 
 men, may have been guilty of negli- 
 gence in sending the deceased into 
 the ditch to make these connections. 
 It is true, as is urged by counsel for 
 the city, that the deceased and Smith , 
 were co-employees ; but they were co- 
 employees only in respect to preparing 
 the end of the pipe already in the 
 trench for connection with other 
 lengths of pipe. Neither of them 
 had any connection with the digging 
 of the trench, nor was either of them 
 charged with any special duty to sup- 
 port the walls of the trench so as to 
 prevent caving in. The city, in sub- 
 stance, by its employment and direc- 
 tions, said to the deceased and the 
 other men : ' We have prepared a 
 trench for the laying of more pipe in 
 North Union street, and you proceed 
 there and make the necessary con- 
 nections.' The decedent had a right 
 to assume, under all the circum- 
 stances of the case, that the city had 
 caused tc be prepared a suitable and 
 proper trench for this purpose." See 
 Shortel v. St. Joseph, 104 Mo. 114, 
 16 S. W. Rep. 397 (1891). 
 
 ' Service upon the lot owner of a 
 notice of the existence of a defect 
 will not relieve the city, Russell 
 v. Canastota, 98 N. Y. 496 (1885), 
 where Danforth, J., said ; " It can- 
 not be said, as matter of law, that 
 the mere service of the notice re- 
 leased the defendant from any further 
 responsibility for injuries resulting 
 from the unsafe condition of the street 
 or sidewalk. It was still their duty 
 
§171 
 
 RESPONDEAT SUPERIOR. 
 
 335 
 
 the contractor^ or lot owner ^ the damages it has been 
 called upon to suffer through his breach of the duty to 
 exercise care. The ultimate liability, in other words, is 
 put upon the one who has caused the injury. No recov- 
 ery can be had from a lot owner, however, for injuries 
 received upon the sidewalk adjoining his premises, unless 
 he has himself been guilty of negligence, for there is no 
 obligation resting upon him to provide reasonably safe 
 streets or walks for others.^ 
 
 to keep them in such condition that 
 they might be safely traveled, and, af- 
 ter notice of existing danger, cause 
 immediate reparation, or, if delay was 
 necessary, then, by some guard or 
 barrier, close it against the public so 
 that no harm should happen from the 
 repair being delayed. McMahon v. 
 Second Avenue Railroad Co., 75 N. 
 Y. 231. They remained at all times 
 under the obligation to secure the 
 safety of the traveler, and whether this 
 duty was performed with reasonable 
 care and vigilance, could only be de- 
 termined as a matter of fact, in view 
 of all the circumstances." 
 
 ' It has been held that the right of 
 action against a contractor must be 
 secured to the corporation by the con- 
 tract pursuant to which the work is 
 done, to be available. Buffalo v. Hol- 
 loway, 7 N. Y. 493 (1852), cited by 
 Sherman & Redfield on Neg., §301. 
 This decision is questioned by Dillon, 
 Munic. Corp., 4th ed., p. 1305, n. 
 I. And as the contractor in such a 
 case has occasioned the loss to the 
 municipality by his neglect of duty, 
 the case against him would seem to 
 be quite similar to that against a neg- 
 ligent lot owner. See in reference to 
 the liability of a contractor : Charlock 
 V. Freel, 125 N. Y. 357 (1890); Bar- 
 ton v. McDonald, 81 Cal. 265, 22 Pac. 
 Rep. 885 (1889); Curtin v. Somerset, 
 
 12 L. R. A. 322, 21 Atl. Rep. 244; 
 Keeley v. Shanley, 21 Atl. Rep. 305 ; 
 Taylor v. Dunn (Tex.), 16 S. W. Rep. 
 732. 
 
 * William v. Stillwell, 88 Ala. 332, 
 6 So. Rep. 914 ; Columbia v. Wash- 
 ington Gas Light Co. (D. C), 19 
 Wash. L. R. 354; Todd v. Chicago, 
 18 111. App. 565 (1886); Gridley v. 
 Bloomington, 68 111. 47 ; Sioux Coun- 
 ty v. Weare, 59 la. 95 ; Rochester v. 
 Montgomery, 72 N. Y. 67 ; Master- 
 ton V. Mt. Vernon, 58 N. Y. 391 ; 
 Scanlon v. New York, 12 Daly 81 
 (1883); Cohoes V. Morrison, 42 Hun 
 216 ; Port Jervis v. First Nat. Bank, 
 96 N. Y. 550; Robbins v. Chicago, 4 
 Wall. 657, 2 Black 418 (1866); Cat- 
 terlin v. Frankfort, 79 Ind. 547, 41 
 Am. Rep. 627 (188 1); Western Rail- 
 road Co. V. Atlanta, 74 Ga. 744; 
 Lowell V. Proprietors, 104 Mass. 18; 
 Westfield v. Mayo, 122 Mass. 100, 22 
 Am. Rep. 292 (1877); Township of 
 Newlinv. Davis, ^^ Pa. 317; Port- 
 land V. Richardson, 54 Me. 46 (1866); 
 Brookville v. Arthurs, 18 Atl. Rep. 
 1076 (1890); Dillon on Munic. Corp., 
 4th ed., §§ 1035-1037, citing cases ; 
 Sherman & Redfield on Neg., 4th ed., 
 
 §301- 
 = In Rochester v. Campbell,i23N.Y. 
 
 405 (1890), Ruger, Ch. J., says: " The 
 
 principles governing actions of this 
 
 general character have been the sub- 
 
CHAPTER XIX. 
 
 NEGLIGENCE RESPECTING ULTRA VIRES ACTS. 
 
 § 172. General rule. 
 
 173. Rule not satisfactory. 
 
 174. If act within general power, liability established. 
 
 175. Municipality should be liable if acts authorized. 
 
 176. Distinction between acts under contract and in tort. 
 
 177. Effect of United States court decision. 
 
 178. Other authorities asserting responsibility. 
 
 179. Authorities supporting general rule. 
 
 180. Protection from negligence of employees. 
 
 181. Action against negligent officers. 
 
 182. Want of power excuses non-action. 
 
 § 172. General rule. — It is said to be a general rule that 
 a municipal corporation cannot be made liable for negli- 
 
 ject of frequent consideration in courts 
 of this and other States, as well as the 
 Federal tribunals ; and certain propo- 
 sitions may safely be assumed, in the 
 further consideration of the case, as 
 being too well settled to require argu- 
 ment or citation to support them. 
 Among these are the following: (i). 
 That municipal corporations in this 
 State are charged with the care, cus- 
 tody, and control of the streets and 
 highways within their limits, and the 
 duty, primarily, rests upon them to 
 keep such streets and highways in re- 
 pair, so that they may be safely trav- 
 eled upon by all having occasion to 
 use them, and this duty is based upon 
 the contract implied through the ac- 
 ceptance of a charter by such corpo- 
 ration from the State devolving upon 
 them the performance of such duties. 
 Conrad v. Village of Ithaca, 16 N. Y. 
 
 1 58 ; Saulsbury v. Village of Ithaca, 
 94 Id. 27. (2). That such corpora- 
 tions are liable for damages arising 
 from a neglect to perform this duty in 
 an action ex delicto to persons law- 
 fully using such streets and sidewalks, 
 notwithstanding a duty to repair is 
 also imposed upon the property own- 
 ers in front of whose premises the in- 
 jury occurred. Russell v. Village of 
 Canastota, 98 N. Y. 496; State v. 
 Gorham, 37 Me. 457; Gridley v. 
 Bloomington, 88 111. 554 ; Robbins v. 
 City of Chicago, 4 Wall. 657 ; Sauls- 
 bury v. Village of Ithaca, 94 N. Y. 27. 
 (3). If a municipal corporation has 
 been compelled to pay a judgment for 
 damages recovered by a traveler for in- 
 juries sustained from a defect or ob- 
 struction in one of its highways, which 
 defect or obstruction was created by 
 the willful act or negligence of a third 
 
§172 
 
 ULTRA VIRES ACTS. 
 
 337. 
 
 gence in respect to acts which are ultra vires} And it 
 is unquestioned that all the powers of these corporations 
 come from their charters and the statutes of the States 
 where they exist. If, then, an act is done beyond the 
 scope of these powers, it is claimed that it is not a corpo- 
 rate act, and that the funds of the corporation cannot be 
 made liable for the negligence of the corporation or its 
 servants in respect to it.^ 
 
 person, it ipay maintain an action 
 against such third person for reim- 
 bursement, and the rule is the same 
 when it has paid an undoubted liabili- 
 ity without suit. Thompson on Neg- 
 ligence, 789; City of Rochester v. 
 Montgomery, 72 N. Y. 65 ; Village of 
 Fulton V. Tucker, 3 Hun 529. (4). 
 So, also, if the municipality has pro- 
 vided by contract with third persons 
 for keeping its streets in repair, and 
 has been, through a neglect by such 
 party to perform his contract, subjected 
 to damages at the suit of an injured 
 party, it may recover from such party 
 the sum which it has thus been com- 
 pelled to pay. (5). The measure of 
 damages in such cases is the loss sus- 
 tained by the injured party, and paid 
 by the municipality with such inci- 
 dental expenses as may have been 
 incurred in defending the action. 
 Thompson on Negligence, 791 ; City 
 of Brooklyn v. Brooklyn City R.R. 
 Co., 47 N. Y. 476. (6). That no ob- 
 ligation to repair streets or sidewalks 
 rests upon the lot owners at common 
 law, but the duty to do so, if any, 
 arises out of the statutory obligations 
 imposed by the State or municipality 
 upon them. Village of Fulton v. 
 Tucker, 3 Hun 529 ; Dillon on Munic. 
 Corp., §1012. (7). When a corpora- 
 tion is sued for damages arising out 
 of defects and obstructions in its 
 streets and highways, created and 
 22 
 
 continued by third persons, against 
 whom the corporation has a cause of 
 action for reimbursement, it may im- 
 pose the burden of defending such ac- 
 tions upon such persons by notice, and 
 in case they do not defend success- 
 fully, or neglect to make any defense, 
 they are bound by the results of such 
 suit, and cannot in any subsequent 
 litigation between themselves and the 
 corporation successfully dispute the 
 material facts on which the adjudi- 
 cation rests. City of Rochester v. 
 Montgomery, 72 N. Y. 65 ; Village of 
 Port Jervis v. First Nat. Bank of 
 Port Jervis, 96 Id. 550." 
 
 Dillon on Munic. Corp., § 968 et 
 seq. ; Sherman & Redtield on Neg., 
 § 299 ; Elliott on Roads and Streets, 
 pp. 355, 356; Thompson on Neg., 
 P- 737 ! Green's Brice's Ultra Vires, 
 p. 246. 
 
 ' Cavanagh v. Boston, 139 Mass. 
 426 (1885); Anthony v. Adams, i Met. 
 286 ; Parsons v. Goshen, 1 1 Pick. 396 ; 
 Spring V. Hyde Park, 137 Mass. 554; 
 Stetson v. Kempton, 13 Mass. 272; 
 Norton v. Mansfield, 16 Mass. 48; 
 Barbour v. Ellsworth, 67 Me. 294; 
 Horn V. Baltimore, 3oMd. 218 (1868); 
 Albany v.Cunliffe, 2 N. Y. 165 (1849); 
 Howell V. Buffalo, 15 N. Y. 522; 
 Smith V. Rochester, 76 N. Y. 506 ; 
 Cuyler v. Rochester, 12 Wend. 165; 
 Boom V. Utica, 2 Barb. 104 ; Peru v. 
 Gleason, 91 Ind. 566 ; Donnelly v. 
 
1 
 
 338 
 
 ULTRA VIRES ACTS. 
 
 1/3. 174 
 
 § 173. Rule not satisfactory. — This is a rule of great 
 severity, for it deprives those who may be injured by 
 careless acts done in the interests of a corporate body 
 and who are faultless themselves, of the right to compen- 
 sation from the real wrong-doer. , It in effect punishes a 
 third person who is in no way responsible for the un- 
 authorized act and prevents the responsibilities which 
 attach to all acts from resting upon the corporation. 
 The rule, therefore, works injustice and is open to criti- 
 cism. And the tendency of recent cases is toward a 
 material modification of it. 
 
 § 174. If act within general power, liability established 
 
 If an act done by a municipality is within the general 
 powers of the corporation, although it is done in excess, 
 or in violation, of these powers, the corporation will be 
 
 Tripp, 12 R. I. 97 ; Cheeney v. Brook- 
 field, 60 Mo. 53 ; Chicago v. Turner, 
 80 111.419; Taylor v. Davis Co., 40 
 la. 295 ; Moreland v. Mitchell Co., 40 
 la. 394 ; Long v. Boone Co., 33 la. 
 181. 
 
 In McCarthy v. Boston, 135 Mass. 
 197 (1883), where the negligence was 
 in cutting down a tree, Field, J., says : 
 " If the superintendent (of streets) was 
 not acting under this power, he was 
 acting without authority of law in a 
 matter over which the city council had 
 no control ; and even if the city coun- 
 cil had attempted to give him author- 
 ity, as it was beyond its powers, the city 
 ■would not be responsible for his acts. 
 Lemon v. Newton, 134 Mass. 476." 
 
 In Shaw V. Timaru Harbour 
 Board, L. R. 15 App. Gas. 429, 59 L. 
 J. P. C. 77 (1890), it was held that a 
 harbor board was not authorized to 
 carry on a pilotage business, and 
 where it did so and a vessel was lost 
 through the negligence of its servant, 
 it was held that there could be no re- 
 covery, as the board could only li- 
 
 cense pilots. It is to be observed, 
 however, that the breach of duty here 
 was with one who had contracted 
 with the board. See infra, § 176. 
 
 In Wakefield v. Newport, 60 N. H. 
 Rep. 374 (1880), Smith, J., says : "The 
 plaintiff does not seek to recover for 
 injuries sustained while traveling from 
 a defective highway. It is not alleged 
 that the flagstaff was the property 
 of the town, or that it was the duty 
 of the town to remove it. No action 
 can be maintained against a town for 
 the negligence of its officers or ser- 
 vants in the performance of an act 
 which a corporation of such a charac- 
 ter is without authority to undertake. 
 Eastman v. Meredith, 36 N. H. 284; 
 Edgerly v. Concord, 59 N. H. 78, 
 341." 
 
 In Seele v. Deering, 79 Me. 343, 
 4 N. E. Rep. 551 (1887), Virgin, J., 
 says : " To create a liability on the 
 part of a town not connected with its 
 private advantage, the act complained 
 of must be within the scope of its cor- 
 porate powers as defined by the stat- 
 
§174 
 
 ULTRA VIRES ACTS. 
 
 339 
 
 held responsible for negligence in respect to it.^ This 
 principle has been recently asserted where it was claimed 
 
 ute. If the particular act relied on or 
 the cause of action be wholly outside 
 of the general powers conferred on 
 towns, they can in no event be liable 
 therefor, whether the performance of 
 the act was expressly directed by a 
 majority vote or was subsequently 
 ratified. Morrison v. Lawrence, 98 
 Mass. 219. 
 
 " So a town is not liable for the un- 
 authorized and illegal acts of its offi- 
 cers, even when acting within the 
 scope of their duties. Brown v. Vi- 
 nalhaven, 65 Me. 402 ; Small y. Dan- 
 ville, 51 Me. 359. But it may become 
 so when the acts complained of were 
 illegal, but done under its direct au- 
 thority previously conferred or subse- 
 quently ratified. Woodcock v. Calais, 
 66 Me. 234, and cases there cited. 
 
 " The difficulty with the courts is 
 that the allegations therein do not 
 bring the acts complained of within 
 the scope of the corporate powers of 
 the town, or aver that they were per- 
 formed by its officers in the execution 
 of any corporate duty imposed by law 
 upon the town. 
 
 . ..." It is quite evident that a 
 town, independent of any statutory au- 
 thority, has no corporate power to dig 
 ditches across another's land. Such 
 an act is ultra vires, and any express 
 majority vote based on a proper arti- 
 cle in a warrant calling a meeting of 
 the defendants directing such acts 
 ■would create no liability on the part 
 of the town. Gushing v. Bedford, 
 125 Mass. 526; Lemon v. Newton, 
 134 Mass. 476." 
 
 ' In Elliott on Roads and Streets, 
 at page 355, the authors say : " If the 
 improvement is one entirely beyond 
 the scope of the authority conferred 
 upon the municipality it is not liable to 
 
 one who sustains an injury from the 
 negligence of those engaged in doing 
 the work. In one of the leading Ameri- 
 can cases upon this subject, a bridge, 
 which the city had no authority to 
 erect, was built across a stream, and 
 it was held that the city was not liable, 
 although its officers were guilty of 
 negligence. The general question was 
 considered in another case, and it 
 was held that where the improvement 
 of a street was beyond the authority 
 of the municipal corporation and un- 
 authorized by it, no action would lie 
 against it. The general rule has been 
 applied in very many cases, and while 
 there is no substantial diversity of 
 opinion respecting the rule as we 
 have stated it, that is, that where the 
 act is entirely beyond the authority of 
 the corporation there is no corporate 
 liability, there is some diversity of 
 opinion as to its proper application. 
 It is important to bear in mind the 
 distinction between acts that are en- 
 tirely beyond the scope of the munic- 
 ipal authority and acts which, al- 
 though wrongful and illegal, are not 
 beyond the scope of the corporate 
 authority. There is, undoubtedly, a 
 distinction between the two classes of 
 cases, but particular cases frequently 
 fall so near the line that it is some- 
 times difficult to determine on which 
 side they rightfully belong. It was held 
 in one case that a city was not liable for 
 work negligently done in the improve- 
 ment of a street under a void vote of 
 the common council. In another 
 case the decision was, that there is 
 no liability, even for negligence, where 
 the city had no authority at all to 
 make an alteration in a street which 
 they undertook to make." 
 
34° 
 
 ULTRA VIRES ACTS. 
 
 § 174 
 
 that the building of a particular sewer was unlawful and 
 that therefore no action for negligence could be brought 
 in regard to it/ and also where an unauthorized bridge 
 was maintained for a considerable period.^ 
 
 In another case where a city council authorized, with- 
 out power, the use of a steam motor on one of the city 
 streets the corporation was held responsible for the dam- 
 age occasioned by its negligent use.^ And in several in- 
 stances actions for damages based on negligence have 
 been maintained against cities where licenses have been 
 granted contrary to law.* In these cases the ground of 
 liability has been the unlawful act of the corporation. 
 
 ' Stoddard v. Saratoga Springs, 127 
 N. Y. 261 (1891). In this case Brad- 
 ley, J., says : " If it were ultra vires 
 in such sense as not to be within the 
 scope of the corporate powers of the 
 defendant, the latter would not be 
 answerable for the consequences re- 
 sulting from it, although the persons 
 causing the work to be done were its 
 officers or agents, and assumed to act 
 as such in doing it. Mayor, etc. v. 
 Cunliff, 2 N. Y. 165 ; Smith v. City of 
 Rochester, 76 Id. 506. But that is 
 not the situation presented here. It 
 was legitimately within the corporate 
 power of the defendant to construct 
 sewers ; and it may be that in at- 
 tempting to execute it, the constituted 
 authorities went to some extent be- 
 yond the authority conferred upon the 
 corporation and them as it officers. 
 The referee has found that the trus- 
 tees were not chargeable with mala 
 fides. It may, therefore, be assumed 
 that the general purpose was to ex- 
 ecute the power vested in the munic- 
 ipal corporation which they repre- 
 sented in causing the work to be done ; 
 and thus acting, the defendant may 
 be chargeable with the injury to 
 
 others resulting from their failure to 
 properly perform the duty which they 
 assumed to discharge, although it 
 may have been occasioned by irregu- 
 larity or acts on their part in excess 
 of authority. 2 Dillon's Mun. Corp., 
 § 769 (4th ed.) § 971 ; Lee v. Village 
 of Sandy Hill, 40 N. Y. 442 ; Buffalo, 
 etc. Turnpike Co. v. City of Buffalo, 
 58 Id. 639 ; Thayer v. City of Boston, 
 19 Pick. 511 ; Hawks v. Charlemont, 
 107 Mass. 414." 
 
 ^ Langlois v. Cohoes, 58 Hun 226 ; 
 Houfe V. Fulton, 34 Wis. 608 (1874), 
 distinguished in Bogie v. Waupun, 
 75 Wis. I, 7 (1889). See also Gordon 
 V. Taunton, 126 Mass. 349 (1879)'; 
 see infra, § 182. A public bridge 
 cannot be built without special charter, 
 Chenango Bridge Co. v. Paige, 83 
 N. Y. 178 (1880) ; Corey v. Rice, 4 
 Lans. (N. Y.) 141 ; Chicago v. Pow- 
 ers, 42 111. 169 ; Clark v. Des Moines, 
 19 la. 198. 
 
 ^ Stanley v. Davenport, ,54 la. 463, 
 37 Am. Rep. 216 (1880). 
 
 ■* Cohen v. New York, 113 N. Y, 
 532. See supra, p. 152, n. i ; Sher- 
 man and Redfield on Neg., 4th ed.. 
 vol. 2, p. 56, note. 
 
§§ 175' ^7^ ULTRA VIRES ACTS. 34I 
 
 § 175. Municipality should be liable if acts authorized.— 
 Where a municipal corporation engages in a business or 
 erects a structure, or does any other act through its au- 
 thorized agent in its own behalf, it is believed that it 
 should be held liable for injuries to individuals from the 
 negligent way in which it conducts the business or does 
 the work, to the same extent that it would be if the work 
 was within the charter rights. The effect of the acts 
 upon the public safety in both cases is the same, and the 
 corporate power to act as a member of society comes 
 from the State. It is not just to confer upon corporate 
 bodies the ability to manage property and to engage in 
 business enterprises, and then to restrict the remedies of 
 individuals, who are in no way put upon inquiry as to 
 the extent of these powers, to cases where the corporation 
 has kept strictly within its charter rights. The necessity 
 of keeping corporations to the performance of only such 
 acts as are within their charters does not require a rule of 
 this character, for its tendency is to encourage u/ira vires 
 acts, and not to discourage them. And the fact that the 
 treasury of the corporation is made to suffer, is no 
 reason for depriving an individual of justice. The 
 public should be protected from injury by negligence in 
 respect to all municipal acts where there is express or im- 
 plied authorization by the corporation itself. For a fail- 
 ure to properly discharge governmental acts, there is no 
 liability in any case. 
 
 § 176. Distinction between acts under contract and in 
 tort— The United States Supreme Court has established 
 the distinction between the liability of a corporation to one 
 with whom it has contracted for ultra vires acts, and its 
 general liability for tortious ultra vires acts, in a case 
 that will probably form the groundwork for the liabilities 
 of these bodies in the future. This is the case of Salt 
 
342 
 
 ULTRA VIRES ACTS, 
 
 § 176 
 
 Lake City v. HoUister ;^ in this case a city was held re- 
 sponsible for the payment of internal revenue taxes 
 
 ' 118 U. S. 256 (1885). Mr. Justice 
 Miller, in the opinion of the court, 
 says : " It is said that the acts done 
 are not the acts of the city, but of its 
 officers or agents who undertook to 
 do them in its name. This would be 
 a pleasant farce to be enacted by irre- 
 sponsible parties, who gave no bond, 
 who have no property to respond to 
 civil or criminal suits, who make no 
 profit out of it, while the city grows 
 rich in the performance. It is to be 
 taken as a fair inference on this de- 
 murrer that all that the city might 
 have done was done in establishing 
 this business. The officers who, it is 
 said, did this thing, must be supposed 
 to have been properly appointed or 
 elected. Resolutions or ordinances 
 of the governing body of the city di- 
 recting the establishment of the dis- 
 tillery and furnishing money to buy 
 the plant must be supposed to have 
 been passed in the usual mode. Ev- 
 erything must have been done under 
 the same rules and by the same men, 
 as if it were a hospital or a town hall. 
 If the demurrer had not admitted this, 
 it would no doubt have been proved 
 on an issue denying it. 
 
 " But the argument is unsound that 
 whatever is done by a corporation in 
 excess of the corporate powers, as de- 
 fined by its charter, is as though it 
 was not done at all. A railroad com- 
 pany authorized to acquire a right of 
 way by such exercise of the right of 
 eminent domain as the law prescribes, 
 which undertakes to and does seize 
 upon and invade, by its officers and 
 servants, the land of a citizen, makes 
 no compensation, and takes no steps 
 for the appropriation of it, is a naked 
 trespasser, and can be made respon- 
 sible for the tort. It had no authority 
 
 to take the man's land or to invade 
 his premises. But if the governing 
 board had directed the act, the corpo- 
 ration could be sued for the tort in an 
 action of ejectment, or in trespass, or 
 on an implied assumpsit for the value 
 of the land. A plea of ultra vires in 
 this case would be no defense. 
 
 " The truth is that, with the great 
 increase in corporations in very recent 
 times, and in their extension to nearly 
 all the business transactions of life, it 
 has been found necessary to hold 
 them responsible for acts not 
 strictly within their corporate powers, 
 but done in their corporate name, and 
 by corporation officers who were com- 
 petent to exercise all the corporate 
 powers. When such acts are not 
 founded on contract, but are arbitrary 
 exercises of power in the nature of 
 torts, or are quasi criminal, the corpo- 
 ration may be held to a pecuniary re- 
 sponsibility for them to the party in- 
 jured. 
 
 . ..." It is said that Salt Lake 
 City, being a municipal corporation, 
 is not liable for tortious actions of its 
 officers. 
 
 "While it may be true that the 
 rule we have been discussing may re- 
 quire a more careful scrutiny in its ap- 
 plication to this class of corporations 
 than to corporations for pecuniary 
 profit, we do not agree that they are 
 wholly exempt from liability for 
 wrongful acts done, with all the evi- 
 dences of their being acts of the cor- 
 poration to the injury of others, or in 
 evasion of legal obligations to the 
 State or the public. A municipal 
 corporation cannot, any more than 
 any other corporation or private per- 
 son, escape the taxes due on its prop- 
 erty, whether acquired legally or ille- 
 
^^77 
 
 ULTRA VIRES ACTS. 
 
 343 
 
 incurred by carrying on the business of distilling spirits, 
 although the prosecution of the business was wholly u/ira 
 vires. And the court rested its decision upon the broad 
 ground that corporations could not escape from liability 
 for wrongful acts by showing that these acts were ultra 
 vires. 
 
 § 177. Effect of United States Supreme Court decision. — 
 This decision has been somewhat criticised by an eminent 
 authority,^ and quite a limited construction is put upon 
 
 gaily, and it cannot make its want of 
 legal authority to engage in a particu- 
 lar transaction or business a shelter 
 from the taxation imposed by the 
 government on such business or trans- 
 action by whomsoever conducted. 
 See McCready v. Guardians of the 
 Poor of Philadelphia, 9 S. & R. 94. 
 
 " It remains to be observed that 
 the question of the liability of corpo- 
 rations on contracts which the law 
 does not authorize them to make, and 
 which are wholly beyond the scope of 
 their powers, is governed by a differ- 
 ent principle. Here the party dealing 
 with the corporation is under no obli- 
 gation to enter into the contract. No 
 force or restraint or fraud is practiced 
 on him. The powers of these corpo- 
 rations are matters of public law open 
 to his examination, and he may and 
 must judge for himself as to the pow- 
 er of the corporation to bind itself by 
 the proposed agreement. It is to this 
 class of cases that most of the author- 
 ities cited by appellants belong — cases 
 where corporations have been sued on 
 contracts which they have success- 
 fully resisted because they were ultra 
 vires. 
 
 " But even in this class of cases the 
 courts have gone a long way to ena- 
 ble parties who had parted with prop- 
 erty or money on the faith of such 
 contracts, to obtain justice by recov- 
 
 ery of the property or the money spe- 
 cifically, or as money had and re- 
 ceived to plaintiff's use. Thomas v> 
 Railroad Co., loi U. S. 71 ; Louisiana. 
 V. Wood, 102 U. S. 294; Chapman 
 V. Douglass County, 107 U. S. 348,. 
 
 3S5-" 
 
 ' Dillon, Munic. Corp., 4th ed., p> 
 1 192, n. I. " The opinion of the court 
 in this novel case (Salt Lake City v. 
 Hollister, 1 1 8 U. S. 256) seems to assert 
 the proposition that the city, although 
 acting ultra vires in the strongest 
 sense of that expression, i. e., in respect 
 of a matter manifestly and necessarily 
 outside of the scope of its powers, either 
 general'or special, would be liable in 
 tort, although perhaps not in contract, 
 for the acts of its agents and servants 
 in the course of such unauthorized 
 business. But the action, viz., to re- 
 cover back taxes actually though in- 
 voluntarily paid, being equitable in its 
 nature {ante, sec. 939 etseq.), the judg- 
 ment of the court, which, on special 
 facts, was unquestionably sound (for 
 the tax was a tax upon property, and 
 was justly due), need not necessarily 
 rest upon so broad a basis as the one 
 above indicated, and the observations 
 of the court in the opinion must be 
 limited accordingly. If not thus limit- 
 ed, and if the court is to be understood 
 as laying down the broad principle 
 that the city would be liable in the 
 
344 ULTRA VIRES ACTS. § 1 77 
 
 the opinion in the case. But the learning of the Justice 
 who wrote the opinion, and his familiarity with the sub- 
 ject under discussion, as well as a recent reference to the 
 case,^ all give evidence that the opinion was a deliberate 
 expression of the view of the court upon the general 
 question discussed. The effect of this decision is to 
 broaden materially the view of liability of municipal cor- 
 porations for torts, and it is a strong authority in support 
 of the contention that these bodies should be liable for 
 negligence in respect to their ultra vires acts. Following 
 its reasoning it may be said that an individual who con- 
 tracts with a corporation is under the obligation of ascer- 
 taining the powers of the particular body with which he 
 assumes to deal. But when, as a member of society, he 
 is acting within his own rights, and is not dealing with 
 or interfering with other independent members of the 
 community, he should not be without remedy when in- 
 jured by an ultra vires act of a corporation done in viola- 
 tion of his right of personal safety. Such an act of the 
 corporation is made doubly wrongful by the fact that it 
 is in excess of the corporate power, and for the damages 
 resulting from it, the corporation should respond. 
 
 conduct of such business to the same posed by the charter of the city upon 
 extent as if the business was infra its corporate powers. Such a view, if 
 vires (for example, that it would be sound as respects private corporations, 
 hable in damages to the manager of would seem not to be so as respects 
 the distillery for a negligent injury to municipal corporations, whose powers 
 him happening in the course of the are defined and limited for the ex- 
 business), it would be, as it seems to press purpose of protecting the in- 
 us, an extension of the doctrine of lia- habitants from just such liability, 
 bility of municipal corporations for Cases within the apparent or possible 
 ultra vires acts beyond the limits powers of the municipality, where the 
 heretofore and generally recognized, other party acted in good faith, and 
 since such extended liability would had no reasonable means of protect- 
 appear to rest upon a supposed estop- ing himself from loss or damage, may 
 pel created by the mere fact of con- stand upon different ground^.'I 
 ducting an ultra vires business, and ' Central Transp. Co. v. PulJman's 
 this in the face of the limitations im- Car Co., 139 U. S. 24, 46 (1890). 
 
§178 
 
 ULTRA VIRES ACTS. 
 
 345 
 
 § 178. Other authorities asserting responsibility.— In an 
 able opinion the New Jersey Supreme Court has upheld 
 the rule of responsibility for tortious acts of a private cor- 
 pot-ation, although ultra vires^ and the arguments that 
 
 ' N. Y., L. E. & W. R.R. Co. v. 
 Haring, 47 N. J. 137 (1885), Beasley, 
 Chief- Justice, says : " The injury for 
 which this suit was brought was an 
 alleged unauthorized ejection from a 
 horse railroad car that was running 
 at the time on the road of a corpora- 
 tion known as the Pavonia Horse 
 Railroad. There was evidence tend- 
 ing to show that, at the time in ques- 
 tion, the plaintiff in error was using 
 this road, and running the cars over 
 it in charge of its own agents, and was 
 receiving the profits arising from the 
 business ; and was properly left to the 
 jury to find whether such usufruct of 
 such road existed. Nevertheless, the 
 counsel of the defendant below insist- 
 ed and asked the judge to charge the 
 jury to find against the action, even 
 though they should be of opinion that 
 his client was thus engaged in the 
 specified business. The ground as- 
 signed was that the plaintiff in error 
 could not legally undertake the em- 
 ployment in question, not having been 
 vested with the requisite franchise, 
 and that, consequently, it was not, in 
 its corporate capacity, liable for any 
 of the consequences of such employ- 
 ment. 
 
 ' "But the doctrine of ultra vires 
 does not apply to torts of this nature. 
 It would, indeed, be an anomalous re- 
 sult in legal science if a corporation 
 should be permitted to set up that in- 
 asmuch as a branch of the business 
 prosecuted by it was wrongful, there- 
 fore all the special wrongs done to 
 individuals in the course of it were 
 remediless. But in such situations 
 corporate bodies, like individuals, can- 
 
 not take advantage of their own 
 wrong by way of defense. If corpo- 
 rations are not to be held responsible 
 for injuries to persons done in the 
 transaction of a series of wrongful 
 acts, such an immunity would have a 
 wide scope. All wrongs done by 
 such bodies are, in a sense, ultra 
 vires, and if the want of a franchise 
 to do the tortious act be a defense, 
 then corporations have a dispensation 
 from liability for these acts peculiar to 
 themselves. 
 
 "There does not appear to have 
 been much discussion of this subject, 
 but a case decided by the Supreme 
 Court of Tennessee is directly on the 
 point. The precedent referred to is 
 reported in 53 Tenn. p. 634, and is 
 entitled Hutchinson v. V^^estem and 
 Atlantic R.R. Co. It was an action 
 against a corporation for damages oc- 
 casioned by the negligence of its em- 
 ployees. It appeared that the railroad 
 company was without authority run- 
 nifig a line of steamers, and the plain- 
 tiff had been hurt by the mismanage- 
 ment of one of them. 
 
 " The defense of ultra vires was 
 interposed in that case, as in the pres- 
 ent, but it was rejected on the ground 
 that such doctrine had no application 
 to torts of that character.'' 
 
 In the Tennessee case referred to 
 by Chief-Justice Beasley — 6 Heisk. 
 (Tenn.) 634 (1871),— Tumey, J., said : 
 "The doctrine 'ultra vires' is not 
 applicable in this case. If a corpora- 
 tion, chartered for one purpose, en- 
 gage in a business different from that 
 authorized by charter, or if its em- 
 ployees engage in such different busi- 
 
346 ULTRA VIRES ACTS. § 1 79 
 
 are used by the court in this case apply equally to the 
 question of the responsibility of municipal corporations 
 for all municipal acts. And it is only because of the gov- 
 ernmental powers and duties of these latter bodies that 
 they do not stand as private corporations. These pow- 
 ers, however, do not absolve them from the duty to ex- 
 ercise care in all their municipal obligations, and there is 
 no reason for distinguishing their liability for tortious «/- 
 tra vires acts in respect to these obligations from the lia- 
 bility of private corporations for similar acts. 
 
 The liability of all corporations for these wrongful acts 
 is dependent upon their recognition by the corporation 
 through its authorized agencies. They must be acts done 
 on behalf of the corporation or ratified by the corporate 
 body. If the funds of the municipality are used to prose- 
 cute a work, or if a bridge or other structure is recog- 
 nized by the corporate authorities as under the protection 
 of the municipality, the duty of the corporation to exer- 
 cise care in regard to it exists. But in every case, to 
 make the corporation liable, it should appear that the 
 work or act was instituted in the interests or by the di- 
 rection of the corporate body. 
 
 § 179. Authorities supporting general rule. — Of the au- 
 thorities usually cited to sustain the general rule of non- 
 liability of municipal corporations for negligence respect- 
 
 ness in the name of the principal, and " The fact that the act from which 
 
 the principal, with a knowledge of the injury resulting was unauthorized 
 
 such departure, receive the profits by the charter of incorporation, is no 
 
 arising therefrom, employ agents to defense for the wrong-doer. With 
 
 superintend it, or in any other distinct corporations, as with individuals, if it 
 
 mode recognize it as their business, be engaged in a lawful business, and 
 
 and in its prosecution by its agents to promote that lawful business resort 
 
 an injury results therefrom to anoth- to unauthorized acts, it must be held 
 
 er's person or property, the party so responsible for the consequences of 
 
 injured is entitled to maintain his ac- such unauthorized acts, else the max- 
 
 tion for the damages resulting from im that ' No man shall take advantage 
 
 the wrongful act. of his own wrong ' is violated." 
 
179 
 
 ULTRA VIRES ACTS. 
 
 347 
 
 ing ultra vires acts referred to in a previous section, it 
 may be said that most of them were decided in localities 
 where the liability of these corporations has been strictly 
 guarded, and where the prevalent view of their general 
 responsibility does not find sanction.^ The cases which 
 have arisen elsewhere, as for example in New York,* 
 
 ' See supra, § 172. Compare su- 
 pra, §51 ^/ seq. 
 
 ^ In Stoddard v. Saratoga Springs, 
 127 N. Y. 261, supra, p. 340, n. 
 I, the general rule of non-liability 
 is stated by Bradley, J., of the second 
 division of the New York Court of Ap- 
 peals. And the authorities cited to 
 sustain it are : Mayor, etc. v. Cunliff, 
 2 N. Y. 165 (1849), and Smith v. 
 Rochester, 76 Id. 506. The first one 
 of these cases has been extensively 
 cited to sustain the general rule. But 
 the facts in the case show that the 
 injury was not occasioned during the 
 building of the bridge, nor while it was 
 in the control of the city of Albany, 
 and the following extracts from the 
 opinions rendered upon the decision 
 of the case, show that the case is not 
 a strong authority for the proposition 
 for which it is so often cited. 
 
 Bronson, J., says : " The pier in the 
 river would have been of little value to 
 the owners, without connecting it with 
 the city by bridges. The act author- 
 izing the work therefore provided for 
 ■bridges, with draws for the passage of 
 boats and vessels ; and the pier com- 
 missioners were to provide persons to 
 open and shut the draws; and were 
 to have no tolls for passing either 
 through or over the bridges. Stat. 
 1823, p. 129, §§4, 5, 9. The bridges 
 were built by and for the pier owners, 
 and they were, of course, bound to 
 maintain and keep them in repair. 
 The point has already been adjudged, 
 that the duty lays upon them, and not 
 
 upon the city. The People v. Cooper, 
 6 Hill 516. 
 
 " In 1837 the corporation of the city 
 of Albany widened and reconstructed 
 the bridges in pursuance of the act of 
 1835 (Stat. 1835, p. 171), which pro- 
 vided that the value of the improve- 
 ment to be ascertained by certain 
 commissioners, should be paid by the 
 pier owners (§ 2). The commissioners 
 awarded four thousand dollars to the 
 city for making the improvement. 
 This work, though done by the cor- 
 poration, was done for the pier own- 
 ers, and at their expense. They have 
 ever since had charge of the bridge in 
 question ; have employed and paid a 
 man for tending the draws, and have 
 made repairs. The duty of maintain- 
 ing and repairing was just as plainly 
 upon the pier owners after, as it was 
 before the bridge was rebuilt. Indeed, 
 the point was adjudged against them 
 on indictment for not repairing, seven 
 years after the bridge was rebuilt. 
 The People v. Cooper, supra. 
 
 " There is, then, no color of author- 
 ity for maintaining this action against 
 the corporation. The city was no 
 morfe than a mere architect or builder 
 of the pier owners. If it did not build 
 with proper care and skill, it may be 
 answerable to the owners of the 
 bridges, but not to third persons. 
 Their remedy is against the owners of 
 the bridge, who are bound to repair. 
 If the injury to the plaintiff had hap- 
 pened while the corporation was en- 
 gaged in constructing the bridge, and 
 
348 
 
 ULTRA VIRES ACTS. 
 
 179 
 
 have not always been decided with regard to the point 
 under discussion. And when the cases bearing on the 
 
 through any want of care or skill on 
 its part, the city might then have been 
 answerable. But the bridge was com- 
 pleted, and had been in the charge of 
 pier owners more than three years be- 
 fore it fell and injured the plaintiff. In 
 such a case there is neither precedent 
 nor principle for allowing a third per- 
 son to turn from those who are bound 
 to maintain the bridge, and bring an 
 action against the architect or builder. 
 He is only answerable to those for 
 whom he builds. He is not answera- 
 ble to them if he builds according to 
 his contract or duty, however frail the 
 structure may be. But the owner, on 
 whom the duty of maintaining rests, 
 is answerable to third persons for the 
 sufficiency of the work, whether he 
 has been injured by the builder or not. 
 
 . ..." It is a sufficient answer to 
 this action, that every count in the 
 declaration is based upon the act ol 
 1835, which has been adjudged to be 
 unconstitutional and void. Stanton 
 V. Allen, 5 Denio's R. 433. But I 
 have assumed that the act was valid ; 
 and then there is no foundation for 
 the action." .... 
 
 And in the same case. Strong, J., 
 says : " The court below base the 
 alleged responsibility of the defendants 
 in this suit on the general ground that 
 where one party sustains an injury by 
 the misfeasance of another, the suf- 
 ferer may maintain an action against 
 the wrong-doer for redress. That rule 
 operates where the injury is effected 
 directly by the wrong, or where it re- 
 sults from the malconstruction of some 
 object while it is in the possession or 
 under the control, or in any manner 
 used under the agency or instructions 
 of the party originally in fault. But I 
 know of no case where it has been held 
 
 that a stranger can recover for dam- 
 ages sustained by reason of the defect- 
 ive construction of an object of the 
 builder, after the title to the object has 
 changed, and it has passed out of his 
 possession, and is no longer subject to 
 his control, and in no way used pur- 
 suant to any authority or directions 
 from him. A man builds a carriage 
 carelessly, with defective materials. 
 He sells and parts with it, and the 
 purchaser lends it to a friend. The 
 carriage, by reason of the original de- 
 fect, breaks down, and the friend is in- 
 jured ; can he recover his damage 
 against the maker? A carpenter is 
 hired to build a barn and furnish the 
 materials. He carelessly places a 
 timber slightly defective under the 
 mow, and the bam is accepted by the 
 owner. Some years afterward the 
 timber, owing to its original defect, 
 breaks and falls upon a laborer, who 
 sustains a serious injury ; can he re- 
 cover of the carpenter.' Or, to take 
 a case more nearly parallel with the 
 one under consideration. A turnpike 
 company contract with some one to 
 build a bridge over a creek which 
 their road crosses. The builder erects 
 a defective bridge, and it is accepted 
 an-1 used by the company. Some 
 time afterwards the bridge, while one 
 is traveling over it, gives way by rea- 
 son of the original defect, and the 
 traveller is injured ; can he sustain an 
 action against the builder ? I know 
 of no decision which would authorize 
 a recovery under such circumstances. 
 The reason why an action cannot be 
 sustained in such case is, that there is 
 no connection between the wrong 
 done and the person whom it is sought 
 to charge for the consequences. The 
 wrong-doer has not, at the time, any 
 
§§ l8o, 181 ULTRA VIRES ACTS. 349 
 
 question of governmental duties and those decided with 
 reference to the statutory liabilities of these corporations 
 are separated from the others, it will be found that the 
 rule, as generally stated, must be modified to accord with 
 the recent authorities regarding the liabilities of municipal 
 corporations. 
 
 § 180. Protection from acts of employees. — Unless the 
 acts engaged in are authorized by the corporation itself, 
 they become the individual acts of employees, and when 
 beyond the scope of their authority no liability on the 
 part of the corporation arises therefrom unless they are 
 ratified by the corporation.^ The liability for tortious 
 ultra vires acts of the corporation itself, therefore, is a 
 wholly different question from the liability of the cor- 
 poration for the tortious ultra vires acts of its em- 
 ployees, for the former question only arises when the 
 acts are done pursuant to corporate authority. 
 
 § 181. Action against officers not acting within powers 
 of corporation. — Where public officers acting within their 
 general authority carry on a public work contrary to a 
 statute which specifies their duty, they become themselves 
 responsible for any negligence done in the prosecution of 
 the work. This principle was asserted in a recent case 
 in Wisconsin where the action was against the street 
 commissioners personally. ** The court also said that there 
 
 control over the subject-matter, or would be to stretch the rules of law to 
 any power or right to remedy the evil, meet the hardship of individual cases, 
 The damage in all such cases arises which I am never disposed to do, how- 
 in fact from the continued use of the ever strongly my sympathies may be 
 defective subject, and with that the enlisted for the sufferers." 
 builder who has parted with the title, ' See supra, \ 169. 
 possession, and control of it, has not, " Robinson v. Rphr et al., 73 Wis. 
 and cannot have, anything to do. 436 (1889). See Stewart v. Clinton, 
 The entire agency is at the time in the 79 Mo. 603 (1883) ; Thomas v. Boon- 
 existing proprietors by whom or ville, 61 Mo. 282 ; Dooley v. Kansas 
 through whose means the wrong is City, 19 Cent. L. J. 490. 
 perpetrated To go further 
 
350 
 
 ULTRA VIRES ACTS. 
 
 §182 
 
 would be no action against the city for the negligence of 
 the commissioners, as the law had not been complied 
 with, but the liability for injuries received upon highways 
 is statutory in this State. 
 
 § 182. Want of power excuses non-action. — In several 
 cases it has been held that where a municipal corporation 
 had no power to act in a certain way for the public bene- 
 fit its non-action will not constitute negligence, although 
 it concerns a municipal duty. Thus where it was claimed 
 that a railing should have been erected to guard the ap- 
 proach to a bridge upon land belonging to the State it 
 was held that as there was no power to erect the railing 
 there, it was not negligence to fail to do this.^ And it 
 
 ' Veeder v. Village of Little Falls, 
 100 N. Y. 343 (1885), Andrews, J., 
 says : " The evidence tends to estab- 
 lish that the intestate on a dark night 
 was driving ' pretty fast ' along Mo- 
 hawk street toward the bridge, and 
 when he approached the west end of 
 the retaining wall, drove too far to 
 the south, so that the right wheels of 
 the wagon were on the towing-path, 
 and the left wheels on the roadbed. 
 When he had proceeded so far that 
 the wall was higher above the towing- 
 path than the axletrees of the wagon, 
 they caught on the wall, and the in- 
 testate with his team and wagon were 
 thrown over into the canal and he 
 was drowned. A railing on the wall 
 would have prevented the accident. 
 But the wall was on the State land. 
 The village had no legal right to put 
 a railing on it, and consequently there 
 was no legal duty on the village to 
 erect one thereon. Legal negligence 
 on the part of the village cannot be 
 predicated of an omission to do what 
 there was no legal right to do. Car- 
 penter V. City of Cohoes, 81 N. Y. 
 21. Nor can it be predicated, we 
 
 think, of a failure of the village au- 
 thorities to obtain permission from 
 the State to erect a barrier on the 
 State land, although such permission, 
 if applied for, might have been grant- 
 ed. The danger was not very obvious, 
 as is shown by the fact that the street 
 had been used in substantially the 
 same condition as it was at the time 
 of the occurrence in question for 
 forty years without the happening of 
 an-' accident from the location of the 
 wall. The trial judge expressly 
 charged that the village had no right 
 or authority to build a guard or bar- 
 rier upon the wall, unless permitted 
 by the State, and this is not only the 
 law of the case on this appeal, but 
 the proposition is correct in principle. 
 But we think the court erred in refus- 
 ing to charge as requested by the 
 counsel in behalf of the defendant, 
 that if the jury should find that a 
 railing or guard north of the wall, 
 outside of the State property, would 
 be dangerous to the traveling public, 
 the village authorities were not negli- 
 gent in failing to build a guard there. 
 The trial judge in denying the motion 
 
l82 
 
 ULTRA VIRES ACTS. 
 
 351 
 
 has been held upon demurrer that a petition in an action 
 for damages against a city for its failure to keep weigh- 
 ing scales was defective when it failed to state facts show- 
 ing the power of the corporation to erect and maintain 
 such scales.' 
 
 for nonsuit, and at the close of the 
 evidence, held that the complaint was 
 broad enough to authorize the jury to 
 determine whether a barrier should 
 have been placed outside of the blue 
 line. It appears that at the west^ end 
 of the wall there was a space of only 
 about eight and one-half feet between 
 the north face of the wall and the 
 sidewalk on the north side of Mo- 
 hawk street. The State land ex- 
 tended, as has been said, twenty-one 
 inches north of the wall. If i barrier 
 had been placed on the boundary of 
 the State land, the traveled way, at 
 the west end of the wall, would have 
 been contracted from eight and one- 
 half feet to a little more than six and 
 one-half feet. The jury might very 
 well have found that such an obstruc- 
 tion would have constituted a greater 
 danger than the one sought to be 
 avoided, and it could not be negli- 
 gence in the village to omit to erect a 
 barrier on the boundary line, if such 
 barrier would have rendered the street 
 
 more unsafe than it was in its existing 
 condition. It is unnecessary to deter- 
 mine whether a verdict could be sus- 
 tained by reason of any other omis- 
 sion than a failure to erect a barrier 
 along the wall. This was the princi- 
 pal negligence charged, and the de- 
 fendant was entitled to a proper 
 charge upon the point suggested. 
 The case of Sewell v. City of Cohoes, 
 75 N. Y. 45, does not control this 
 case. In that case the city permitted 
 a structure erected by a third person, 
 and it was held that the fact that the 
 city had not acquired title to the land 
 which it had assumed to appropriate 
 for a public street, was not a defense 
 to the action. In this case there was 
 no defect in the roadway. The dan- 
 ger, if any, was extrinsic, and arose 
 from a structure made by the State 
 on its own land, over which the vil- 
 lage had no control, and with which 
 it had no right to interfere." 
 
 ' Mitchell v. Clinton, 99 Mo. 153 
 (1889). 
 
CHAPTER XX. 
 
 NOTICE. 
 
 § 183. Twofold character of negligence of municipal corporations, 
 
 184. Necessity of notice. 
 
 185. Negligent failure to act. 
 
 186. Actual notice. 
 
 187. To whom notice should be given. 
 
 188. Constructive notice. 
 
 189. Notice not implied unless failure to exercise reasonable care. 
 
 190. Duty of examination. 
 
 191. Notice of defects caused by snow and ice. 
 
 192. Notice of injury. 
 
 § 183. Twofold character of negligence of municipal cor- 
 porations. — The negligence of municipal corporations 
 consists in acts of commission and acts of omission, or as 
 is often said in the cases, and especially the older ones, 
 in acts of misfeasance and acts of nonfeasance. In one 
 sense negligence always is not doing, for it is a failure to 
 do what the law requires ; but there is a broad distinction 
 between neglect in guarding others from injury when 
 such a corporation is engaged in the prosecution of some 
 work, and neglect arising from mere non-action. For in 
 the first case the corporation is responsible for the doing 
 of the act in regard to which the negligence has arisen, 
 and is chargeable with its faulty performance, and in the 
 second it is doing nothing to interfere with the public 
 safety, and the obligation if it arises at all must come 
 from its failure to act. 
 
 § 184. Necessity of notice. — Where, therefore, a munici- 
 pal corporation engages in work, as where it erects a 
 building, or a bridge, builds a sidewalk or an aqueduct, 
 
§i84 
 
 NOTICE. 
 
 353 
 
 it is liable for negligence in the prosecution of this work, 
 because it is responsible for the undertaking itself. It 
 knows of the necessity of the exercise of care for the 
 protection of others throughout the entire work, and if 
 it builds defectively it is liable without notice.^ 
 
 But where it is claimed that a municipality has neg- 
 lected to keep its highways or its sewers in reasonable 
 repair, or any of its corporate property in a suitable con- 
 dition for use, before it will be made responsible for the 
 damages that have followed from such an alleged neglect. 
 
 ' Barr v. Kansas City, i6 S. W. 
 Rep. 483 (1891); Haniford v. Kansas 
 City, 103 Mo. 172; Hughes v. Fond 
 du Lac, 73 Wis. 380 (1889); Fort 
 Wayne v. Coombs, 107 Ind. 75, 5 
 W. Rep. 229 (i886); Buck v. Bidde- 
 ford, 82 Me. 433, 19 Atl. Rep. 912 ; 
 Holmes v. Paris, 75 Me. 559 ; Monte- 
 zumas V. Buck, 82 Ga. 206 ; Bruns- 
 wick V. Braxton, 70 Ga. 193 (1883); 
 Olsen V. Worcester, 142 Mass. 536, 
 8 N. E. Rep. 441 ; Morris v. Lynn, 
 119 Mass. 273 ; Brooks v. Somerville, 
 106 Mass. 271 ; Weber v. Creston 
 City, 75 la. 16 ; Jefferson v. Cliapman, 
 127 111.438, 20 N. E. Rep. 33 ; Mans- 
 field V. Moore, 124 111. 132, 16 N. E. 
 Rep. 246 ; Michigan City v. Boeckling, 
 122 Ind. 39; Noble v. Richmond, 
 31 Gratt. (Va.) 271 ; Traubman v. 
 Lexington, 25 Mo. App. 218; Welsh 
 V. St. Louis, 73 Mo. 71 (1880); Rus- 
 sell V. Columbia, 74 Mo. 491 (1881); 
 Houston V. Isaacks, 68 Tex. 116; 
 Southern Exp. Co. v. Texarkana 
 Water Co. (Ark.), 15 S. W. Rep. 
 361 ; Klein v. Dallas, 8 S. W. Rep. 
 
 9'- 
 
 In Wheatonv. Hadley, 131 111. 640 
 (1890), it was said : " The point was 
 made in some of the defendant's in- 
 structions, that if the walk had been 
 thoroughly repaired a few weeks be- 
 fore the injury, the town authorities 
 23 
 
 should have had notice, either actual 
 or constructive, of its being out of re- 
 pair and in unsafe condition, in time 
 to have remedied the same, before 
 the town would be liable. The evi- 
 dence very clearly showed that the 
 walk was fourteen or fifteen years old, 
 and that the stringers upon which the 
 boards were laid were so decayed and 
 rotten that they would not hold the 
 nails by which the boards were 
 sought to be fastened. There is no 
 question but that those in charge of 
 the walks had full knowledge of that 
 fact, and attempted to repair the same 
 about three weeks before the injury 
 to appellee. It appears that some 
 new boards were substituted for 
 others decayed, but no new stringers 
 were put in. The proof tended to 
 show that the walk was not in fact 
 repaired so as to render the same 
 safe and in good repair and condi- 
 tion. If this was so, the municipal 
 authorities were chargeable with no- 
 tice of it. If the authorities attempted 
 to repair the walk, and, as the evi- 
 dence tended to show, the stringers 
 were so decayed as to be incapable of 
 holding the nails with which the 
 boards constituting the walk were in- 
 tended to be fastened, the authorities 
 must have known it. If the town 
 had laid a new walk out of defective- 
 
354 
 
 NOTICE. 
 
 5§ 185, 186 
 
 it must also be shown that the corporation was under 
 some duty to act. 
 
 § 185. Negligent failure to act.— The negligent omis- 
 sions to act on the part of a municipal corporation which 
 give rise to corporate liability are of two kinds: (i), 
 where the negligence consists in failing to take corporate 
 actions after knowledge of the existence of some defect 
 in the property, and (2), where negligence is attributed 
 to the corporation because it has failed to discover and 
 remedy some such defect. In the first case it appears 
 that the corporation has had actual notice of the need of 
 action, but, in the second, notice is implied from the ex- 
 istence of the defect itself, and from the duty of the cor- 
 poration in regard to the care of its property. 
 
 § 186. Actual notice. — Where actual notice ^ of a defect 
 
 material, from which an injury re- 
 sulted, the town would have been 
 chargeable with notice of the defect. 
 So in this case, if the authorities, hav- 
 ing both actual and constructive no- 
 tice of the defective condition of the 
 walk before the repairs were made, so 
 made the repairs that the walk was 
 left in an unsafe condition and repair, 
 because of the defective material 
 therein, they would be liable for injury 
 resulting from such defect. In this 
 view the court below was justified in 
 refusing the instructions mentioned as 
 being calculated to mislead the jury." 
 
 ' Pomfrey v. Saratoga Springs, 104 
 N. Y. 459 (1887). " If the municipal 
 authorities have actual notice of a 
 dangerous defect in a street, then it is 
 their duty without unreasonable delay 
 to repair it." 
 
 In Bloor v. Delafield, 69 Wis. 273 
 (1887), Lyon, J., says: "It is main- 
 tained that the town had no sufficient 
 notice that the mortar-box was left in 
 
 the limits of the highway, to charge it 
 with the duty of removing it before 
 the accident happened, and hence 
 that the defendant's motion for a non- 
 suit should have been granted. The 
 jury had a right to find from the tes- 
 timony that Mr. Blair, the overseer of 
 that highway, had notice on Saturday 
 night that the box was there. He cer- 
 tainly had such notice the next morn- 
 ing. Notice to him was notice to the 
 town. If the box was liable to frighten 
 horses passing it, either by day or in 
 the night-time, especially those of or- 
 dinary gentleness, he should have 
 caused its removal at once. The in- 
 tervention of a Sunday did not sus- 
 pend this duty, for the personal safety 
 of travelers on the highway was en- 
 dangered by its non-performance. , 
 The accident occurred between eight 
 and nine o'clock on Sunday evening, 
 the day after the box was so left there. 
 After the overseer knew it was there, 
 he had ample time in which to remove 
 
§i86 
 
 NOTICE. 
 
 355 
 
 in a highway is brought home to the corporation it is at 
 once under the duty of repairing the defect within a rea- 
 sonable time. The notice need not be in any particular 
 
 it before the plaintiff's horse was 
 frightened by it. 
 
 "The circuit judge heid that suffi- 
 cient notice to the town of the alleged 
 defect in the highway was proved. 
 We think the ruling correct, and that 
 the motion for a nonsuit was properly 
 denied. There is nothing in Alexan- 
 der V. Oshkosh, 33 Wis. 283, or in 
 Bailey v. Spring Lake, 61 Wis. 236, in 
 conflict with what is here said. The 
 ruling of the judge on this subject is 
 sustained by the cases of Jaquish- v. 
 Ithaca, 36 Wis. 108, and Parish v. 
 Eden, 62 Wis. 272." 
 
 In Bradford v. Anniston, 8 So. Rep. 
 683 (1890), Coleman, J., says: "This 
 hole was in one of the main thor- 
 oughfares of the city, over which peo- 
 ple from the suburbs and country 
 daily traveled witli wagons and vehi- 
 cles. It was admitted, that the street 
 overseer saw this hole about nine 
 o'clock A.M., and plaintiff's ox fell in 
 this hole about one o'clock p.m. of 
 the same day. Notice to the street 
 overseer was notice to the city. 
 Whitfield v. City of Meridian, 66 
 Miss. 570, 6 So. Rep. 244, 14 Am. 
 St. Rep. 596, and authorities cited in 
 note. Nothing was done to remedy 
 the danger caused by this hole, and 
 no notice, warning, or signal, posted 
 or otherwise, given by which the trav- 
 eling public was made aware of, or 
 could learn of, the existence of this 
 dangerous hole in one of its main 
 thoroughfares. The only excuse 
 given for leaving the highway in this 
 dangerous condition from nine o'clock 
 A.M. until in the afternoon was that 
 the street force was busy in repairing 
 other damages caused by the rain of 
 
 the previous night. There is no evi- 
 dence to show that by the exercise of 
 reasonable diligence extra force could 
 not have been employed by the city 
 for the emergency, and no excuse 
 whatever pretended to be given why 
 some notice or signal was not put up 
 at this dangerous place to warn the 
 traveling public of its existence. This 
 was negligence perse, making the city 
 liable for injury caused thereby, unless 
 the party injured was guilty of con- 
 tributory negligence. City of Mont- 
 gomery V. Wright, 72 Ala. 420 ; May- 
 or, etc. V. Wilson (Ga.), 9 S. E. 17 ; 
 Whitfield v. City of Meridian (Miss.), 
 6 So. Rep. 244 ; Railroad Co. v. Mc- 
 Lendon, 63 Ala. 266. The plaintiffs 
 wagon and oxen were being driven 
 along this usually traveled thorough- 
 fare, without any notice or knowledge 
 on his part of the existence of the hole 
 into which the ox stepped whereby his 
 death was caused. There is no evi- 
 dence tending to show plaintiff guilty 
 of contributory negligence." 
 
 In Rehberg v. New York, 91 N. Y. 
 137, 43 Am. Rep. 657 (1883), An- 
 drews, Ch. J., says : " The accident 
 occurred on Monday, May 5, 1879, 
 between eleven and twelve o'clock in 
 the forenoon. The pile was com- 
 pleted May 3d. It was commenced 
 on or before Monday, April 29th, and 
 the evidence would have warranted 
 the finding that it had reached the 
 safety limit as to height, as this limit 
 was fixed by the plaintiff's witnesses 
 as early as Wednesday or Thursday 
 previous to the accident. It was 
 shown by a policeman who was as- 
 signed to duty in the precinct that he 
 saw the pile from time to time while 
 
356 
 
 NOTICE. 
 
 1 86 
 
 form, and a verbal notice is sufficient,' unless the matter 
 is controlled by statute.^ In some instances, we have seen, 
 actual notice of defects must always be given,^ and, in 
 some other cases, actual notice of defects caused by snow 
 and ice is necessary to make the municipality liable for 
 damages occasioned thereby.* In general, however, if 
 knowledge is traceable to the corporation, this is all that 
 is required to put upon it the duty of making the way 
 reasonably safe for use. 
 
 it was going up, ' but took no particu- 
 lar notice of it.' It does not appear 
 that he interfered to prevent its erec- 
 tion, or sought to ascertain whether 
 any permit had been granted to the 
 persons building it, or that he notified 
 any officer or department of the city 
 government of its existence. 
 
 . . . . " Notice to the policeman of 
 this unlawful obstruction was, we 
 think, notice to the city, and the city 
 is chargeable with any neglect on his 
 part to make proper observation or in- 
 quiry, or for any negligence in permit- 
 ting the obstruction to exist. Whether 
 in view of the distribution of munici- 
 pal powers or the methods of munici- 
 pal business and the time which would 
 be required by the city after notice to 
 cause the obstruction to be removed, 
 the city acted with reasonable dili- 
 gence after notice to the policeman 
 of its existence, and whether there 
 was time after such notice to have re- 
 moved the obstruction before the hap- 
 pening of the accident, was a question 
 of fact for the jury, to be determined 
 upon all the circumstances of the case. 
 The question presented is not free 
 from difficulty, but we are of opinion 
 that the case ought to have been sub- 
 mitted to the jury upon the question 
 of negligence on the part of the de- 
 fendant. If the city omitted to act 
 with reasonable diligence after notice 
 of an unlawful obstruction in the 
 
 street which might occasion injury 
 to persons lawfully therein, we think 
 it would be no defense that it may 
 not have known that the obstructiott 
 was in fact dangerous. The duty 
 rested upon the city to remove the in- 
 cumbrance ; and if the incumbrance 
 was dangerous in fact, and resulted 
 in injury to the plaintiff, the city is, we 
 think, responsible, although it had 
 not by actual examination and inspec- 
 tion ascertained its dangerous char- 
 acter." 
 
 ' Brusso V. Buffalo, 90 N. Y. 679 ; 
 Bonnie v. Richmond, 75 Mo. 437 
 (1882); Springfield v. Doyle, 76 111. 
 202 ; Colby v. Beaver Dam, 34. Wis. 
 285 ; Dalton v. Albion, 50 Mich. 129 
 (1883); Joliet V. Walker, 7 111. App. 
 267 (1880) ; McPherson v. Dist. of 
 Col., 18 Wash. L. R. 270, if a city 
 has notice of a failure to guard 
 trenches, this is sufficient; Corts v. 
 Dist. of Col. , 7 Mackey 277, if a de- 
 fect which will become dangerous in 
 case of snow is known to exist, the 
 occurrence of a snow-storm is suffi- 
 cient notice of the danger. 
 
 * Bailey v. Springlake, 61 Wis. 227 
 (1884); Ben ware v. Pine Valley, 53 
 Wis. 527 ; Chapman v. Nobleboro, 76 
 Me. 427. 
 
 Supra, §§ 129, 134. 
 « See McNally v. Cohoes, 127 N. Y. 
 350 ( 1891). Supra, § 127. 
 ■i Supra, % 105, 
 
§i87 
 
 NOTICE, 
 
 357 
 
 And if a city has actual notice of a general defect, this 
 is sufficient to raise a presumption of notice of a particu- 
 lar defect of a similar nature.^ Whether or not the city- 
 has had knowledge of the defect is usually for the jury,^ 
 and any legal evidence which will show this knowledge 
 may be resorted to.* 
 
 § 187. To whom notice should be given. — Notice of a 
 defect in a way, generally speaking, should be given to 
 the authorities lawfully in control of the streets, and 
 upon whom rests the duty of repairing them.* But the 
 courts do not require that knowledge of such a defect 
 must come directly to the street commissioners or over- 
 seers ; it is sufficient if the knowledge is brought to the 
 attention of a member of the common council,^ or of 
 
 ' Shelby v. Clagett, 46 Ohio St. 
 549, 5 L. R. A. 606 ; Dundas v. Lan- 
 sing. 75 Mich. 499 ; Gude v. Manka- 
 to, 30 Minn. 256 (1883); Weisenberg 
 V. Appleton, 26 Wis. 56 ; Aurora v. 
 Hellman, 90 111. 61 ; Spearbracker v. 
 Larrabee, 64 Wis. 573 ; Armstrong v. 
 Ackley (la.), 32 N. W. Rep. 180 ; Ful- 
 ler V. Jackson, 82 Mich. 480, 46 N. 
 W. Rep. 721, 10 L. R. A. 738 (1890), 
 knowledge of a hole in a sidewalk is 
 not sufficient to show that the planks 
 were defective. 
 
 ' Manchester v. Hartford, 30 Conn. 
 118; Colley V. Westbrook, 57 Me. 
 181. See also Sheel v. Appleton, 49 
 Wis. 125. /n/ra, Chap. XXIV. 
 
 s Bond V. Biddeford, 75 Me. 538 
 (1884), report of street commissioners 
 to city that bridge was unsafe is 
 proper evidence to show knowledge 
 of city; Blake v. Lowell, 143 Mass. 
 296, 9 N. E. Rep. 627, a book kept in 
 a city office for the purpose of enter- 
 ing complaints as to the condition of 
 the streets and recording the time 
 when the complaints were attended, 
 is evidence to show notice to the city ; 
 
 Haskell v. Penn Yan, 5 Lans. 43, an 
 order to an owner to repair a sidewalk 
 adjacent to his premises is evidence 
 that the city knows of its defective 
 condition. 
 
 See m/ra. Chap. XXIV. 
 
 * Notice to a street overseer is no- 
 tice to the city. Bradford v. Annis- 
 ton (Ala.), 8 So. Rep. 683 ; supra, p. 
 355, note ; Lafayette v. Larson, 73 Ind. 
 367. Notice to a person recognized 
 by the village trustees as street com- 
 missioner is sufficient. McSherry v. 
 Canandaigua, 129 N. Y. 612, 12 N. 
 Y. Supp. 751 (1891). See, also, 
 Fuller v. Jackson, 82 Mich. 480 
 (1890); Scranton v. Catterson, 94 Pa. 
 202; Goldsworthy V. Linden, 75 Wis. 
 24, 43 N. W. Rep. 656; Parish v. 
 Eden, 62 Wis. 272 ; Rogers v. 
 Shirley, 74 Me. 144 ; Osborne v. 
 Hamilton, 29 Kas. i. 
 
 ' Turner v. Newburgh, 109 N. Y. 
 301 (1888); Logansport v. Justice, 74 
 Ind. 378, 39 Am. Rep. 79 (1881); 
 Carter v. Monticello, 68 la. 178 ; 
 Salina v. Trosper, 27 Kas. 544, 26 N. 
 W. Rep. 129; Knoxville v. Bell, 12 
 
358 
 
 NOTICE. 
 
 §187 
 
 any officer of the city whose duties relate to the care 
 and management of the streets. It has accordingly been 
 
 Lea (Tenn.) 157(1883); McDermott 
 V. Kingston, 19 Hun (N. Y.) 198; 
 Bush V. Geneva, 3 T. & C. (N. Y.) 
 409. In Dundas v. City of Lansing 
 75 Mich. Rep. 499 (1889), Champlin, 
 J., said : " Now, while an individual 
 alderman, not acting in the meeting 
 of the council, has no control or 
 supervision over the streets any more 
 than a private citizen, yet when he 
 meets in council he does have a voice 
 in saying what repairs shall be made, 
 and, if a meeting of the council has 
 been held after knowledge by or no- 
 tice to him, there is no good reason 
 why such knowledge or notice should 
 not be imputed to the body of which 
 he is a member, based upon the duty 
 which he owes to the public to im- 
 part his knowledge affecting the pub- 
 lic interest to the council. 
 
 " For the same reason should the 
 knowledge of the city marshal and 
 street inspectors be held to be the 
 knowledge of the council, they are en- 
 titled to seats in the body, and to be 
 heard upon the matters under their 
 supervision, and the keeping of streets 
 in repair comes under their supervision. 
 
 " Had each alderman of the city 
 seen this hole in the walk, and been 
 cognizant that it had been there for 
 six months, it would be absurd to 
 hold that the collective body called 
 the common council had no knowl- 
 edge of what each individual compos- 
 ing it knew full well. The duty of all 
 to bring the matter of repair before the 
 council for its action is no greater than 
 the duty of each member to do so 
 who is possessed of such knowledge. 
 The aldermen represent the city 
 in respect to those matters placed 
 under the control of the council, and 
 are so far its agents, that notice to 
 
 them with regard to such matters is 
 notice to the principal. Fulton Bank 
 V. N. Y. & Sharon Canal Co., 4 Paige 
 127; North River Bank v. Ayniar, 3 
 Hill 262 ; U. S. Bank v. Davis, 2 Id. 
 451 ; Security Bank v. Cushman, 121 
 Mass. 490 ; Trapnell v. City of Red 
 Oak Junction, 39 N. W. Rep. 884; 
 Carter v. Town of Monticello, 68 
 Iowa 178, 26 N. W. Rep. 129. 
 
 " It must be borne in mind, how- 
 ever, that the knowledge or notice 
 which the statute requires is that of 
 the particular defect complained of, 
 and not knowledge or notice of other 
 defects, which, although they are 
 shown to exist to the knowledge of 
 the city, did not occasion the injury 
 alleged. 
 
 . . . . " The city cannot be held lia- 
 ble for damages caused by the non- 
 repair of the crosswalk at Butler 
 street by showing that sidewalks in 
 the vicinity were out of repair. 
 
 " In G. R. & I. R.R. Co. v. Huntly, 
 38 Mich. 540, Campbell, C. J., said : 
 ' We are also of opinion that no de- 
 fects in the track could be relied on 
 to show negligence contributing to 
 the accident except those existing 
 where the track was injured or dis- 
 placed, and that testimony as to the 
 condition of the road away from the 
 scene of the injury was improper to 
 make out a cause of action, and 
 could only tend to raise false issues. 
 The testimony should be confined to 
 the time as well as place of the acci- 
 dent.' 
 
 " To the same effect are Collins v. 
 Inhabitants of Dorchester, 6 Cush. 
 396 ; Robinson v. Fitchburg & Wor- 
 cester R.R. Co., 7 Gray 92 ; Maguire 
 V. Middlesex R.R. Co., 115 Mass. 
 239; Bailey v. Township of Trum- 
 
§i88 
 
 NOTICE. 
 
 559 
 
 held that notice to members of the police force of a city 
 is notice to the city.^ 
 
 § i88. Constructive notice. — The ground upon which 
 constructive notice is held to be sufficient to charge 
 municipal corporations with the duty of repairing defects 
 in public property is, that they have been negligent in 
 failing to know of the defects. The obligation to exer- 
 cise reasonable care to keep highways, sewers, and other 
 public property in a suitable condition for use, is not 
 satisfied by repairing such defects as may come to the 
 knowledge of the corporation ; there is another duty to 
 be performed, namely, the duty of exercising care to dis- 
 cover defects. For, as has been aptly said : " Negligent 
 ignorance is no less a breach of duty than willful neglect." * 
 
 bull, 31 Conn. 581 ; Jacques v. 
 Bridgeport Horse R.R. Co., 41 Id. 
 61. 
 
 " In this case the plaintiff was per- 
 mitted to produce testimony tending 
 to show generally the bad and defect- 
 ive condition of the sidewallcs a block 
 or more each way from the cross- 
 walk on Butler street. This was 
 error. It is going far enough to hold 
 that it may be shown that accidents 
 have happened to other people who 
 were exercising ordinary care, on ac- 
 count of the particular defect com- 
 plained of ; but such testimony is ad- 
 missible mainly as tending to show 
 the dangerous character of the de- 
 fect ; in other words, that on account 
 thereof the street or sidewalk or 
 crosswalk was not reasonably safe 
 and fit for travel. Very remotely, 
 and in connection with other testi- 
 mony showing the length of time the 
 defect had existed, it might have a 
 bearing upon the question of notice 
 to the municipality. Smith v. Town- 
 ship of Sherwood, 62 Mich. 159, 28 
 
 N. W. Rep. 806 ; Tomlinson v. Derby, 
 43 Conn. 562." 
 
 ' Twogood V. New York, 102 N. Y. 
 216 (1886); Goodfellow V. New York, 
 100 N. Y. 1 5 ; Rehberg v. New York, 
 91N.Y. 137; Weed V. Ballston Spa, 76 
 N.Y.329; Denver V. Dean, 10 Col. 375, 
 3 Am. St. Rep. 594 (1887); Carrington 
 V. St. Louis, 89 Mo. 208, 58 Am. Rep. 
 108. SeeDonaldsonv.Boston,82Mass. 
 508 ; Mason v. Ellsworth, 32 Me. 271. 
 
 " Whitfield V. Meridian, 66 Miss. 
 570, 14 Am. St. Rep. 596, 4 L. R. A. 
 834 (1889). In this case the court 
 also said : " The circumstances of 
 each case must determine whether 
 constructive notice of the defect is to 
 be attributed to the corporate author- 
 ities ; but where, as here, the defect 
 was manifest, and of such dangerous 
 character as to obtrude its existence 
 to the most casual observer, and had 
 existed through many years, but one 
 conclusion can be reached, and that 
 is, that the authorities of the city 
 could only have remained ignorant 
 by neglecting all supervision of the 
 streets in that locality." 
 
360 NOTICE. § 189 
 
 If, therefore, a public corporation has it in its power to 
 know of a defect in property under its control and negli- 
 gently fails to do so, it will be chargeable with the inju- 
 ries which are occasioned by the defect^ This general 
 rule is well settled, but many cases have arisen illus- 
 trative of its application which show that it is often 
 difficult to conclude whether the corporation was negli- 
 gent in failing to know of an alleged defect. 
 
 § 189. Notice not implied unless failure to exercise rea- 
 sonable care. — The inquiry in all cases where the attempt 
 is to hold a municipality responsible for negligence on 
 the ground of constructive notice is, has the corporation 
 failed to exercise reasonable care in discovering the de- 
 fect ? If it has, it should bear the consequences of the 
 breach of duty; but if it has not neglected to do what was 
 reasonable under the circumstances, it should not be lia- 
 ble, for it has committed no fault.^ Where, therefore, a 
 
 > Mersey Docks v. Gibbs, 11 H. L. In Otto Township v. Wolf, 106 Pa. 
 
 Cas. 686 (1866); Morrill on City Nag., 608 (1884), where the action was to 
 
 p. 119. See authorities cited infra, recover damages for injuries received 
 
 p. 362, n. I. by one walking on a public road and 
 
 ^ Montezuma v. Wilson, 82 Georgia carrying a lantern, from an explosion 
 
 206, 14 Arn. St. Rep. 150, Simmons, of gas, Mr. Justice Paxson says: "At 
 
 J., says : " A municipal corporation the place where the accident occurred 
 
 cannot be held liable for damages oc- . a pipe, one or two inches in diameter, 
 
 curring by reason of a defect in its had been laid across the highway by 
 
 streets, sidewalks, sewers, or bridges, one Patterson to convey gas from his 
 
 when it had no notice thereof, or when oil well on one side of the road to a 
 
 such a defect has not existed for a well he was drilling on the other side, 
 
 sufficient length of time from which " This pipe had been in place about 
 
 notice can be inferred, provided the six weeks ; in the centre, or traveled 
 
 corporation has been gfuil'.y of no neg- part of the road, it had been buried 
 
 ligence in constructing or repairing about one foot, but where it crossed 
 
 the same. According to the testimony the gutter, on either side of the road, 
 
 in this case, this defect was of such a it was exposed, and rested upon the 
 
 recent origin that the officers of the bottom of the gutter. On the evening 
 
 town government could not possibly in question, about an hour before the 
 
 have had notice of it ; and we think, accident occurred, a team had passed 
 
 therefore, that the jury found contrary along at this point, and for some rea- 
 
 to the evidence." son had deviated from the traveled 
 
§i89 
 
 NOTICE. 
 
 361 
 
 defect is of such a character that it would not be detected 
 upon reasonable supervision, or where it has not existed 
 for a sufficient time to enable its existence to come to the 
 knowledge of the corporation, there will be no liability. 
 But if it has existed for such a time that the corporation 
 by the exercise of ordinary care and diligence could have 
 discovered it, the corporation will be responsible to any 
 
 portion, the wheels had come in con- 
 tact with the exposed portion of the 
 pipe in the gutter, causing a break 
 thereof, and the escape of the gas. 
 There was no evidence that the town 
 authorities Icnew that the pipe had 
 been laid across the road ; the plaintiff 
 lived about a quarter of a mile from 
 the place of the accident ; had passed 
 along the road frequently, and had not 
 noticed the pipe 
 
 "In Rapho & West Hempfield 
 Townships v. Moore, 18 P. F. S. 404, 
 it was held that ' A municipality is not 
 an insurer against all defects, latent 
 as well as patent, in its structures on 
 highways, but is liable for negligence. 
 Where the defect in a lawful structure 
 is latent, or is the work of a wrong- 
 doer, either express notice must be 
 brought home to the corporation, or 
 the defect must be so notorious as to 
 be evidence to all passers, when the 
 corporation is charged with construct- 
 ive notice.' .... 
 
 " Hence the township is not liable, 
 until knowledge of the act complained 
 of is brought to the attention of the 
 supervisors, unless the defect be so 
 open and notorious as to be evident to 
 all passers-by. Even in the latter 
 case, a reasonable time, depending 
 upon the character and location of 
 the obstruction, must elapse before 
 the township can be held to construct- 
 ive notice. 
 
 " And this is a question for the jury : 
 Fritsch v. City of Allegheny, 10 Nor- 
 
 ris 226. It would not do to apply the 
 same rule to the supervisors of a large 
 and sparsely settled township, where 
 an obstruction had been placed upon 
 a highway seldom traveled, that we 
 would to the municipal authorities of 
 a city or borough, where such an ob- 
 struction would be likely to be brought 
 to their knowledge speedily. 
 
 " The learned judge thought that 
 six or eight weeks was quite enough 
 to ' give the public authorities to know 
 whether or not a powerful agent is be- 
 ing transported across the highway so 
 insecurely as to endanger life or limb 
 of passers-by.' 
 
 " It has been held in some cases 
 that much less time was sufficient to 
 charge the municipal authorities with 
 notice. Thus in Fritsch v. City of 
 Allegheny, supra, where a dead horse 
 had been suffered to remain for twenty- 
 four hours during the hot weather of 
 August, upon one of the streets of the 
 city, it was left to the jury to say 
 whether under the circumstances of 
 the case the municipal authorities 
 ought to have discovered and removed 
 it within that time. 
 
 " But the facts of this case bear no 
 analogy to this. Here we have a 
 small iron pipe, not over two inches 
 in diameter, buried out of sight under 
 the traveled portion of the road, and 
 exposed only for the short space neces- 
 sary to cross the gutter. It was lying 
 upon the bottom of the gutter, and the 
 first rain might, and probably would, 
 
362 
 
 NOTICE. 
 
 189 
 
 individual damaged by its existence.^ But knowledge 
 of the presence of a particular obstruction beside a 
 street cannot be charged to a municipality, because 
 other obstructions had been placed there by the same 
 persons.^ Constructive notice of a defect in a walk, how- 
 
 cover it with dirt, so as to scarcely be 
 perceptible to the passer-by. It was 
 not so patent and notorious ' as to be 
 evident to all passers.' That this is 
 so is conclusively shown by the fact 
 that the plaintiff, who lived within a 
 quarter of a mile of it, and had passed 
 over the road, did not know the pipe 
 was there.'' 
 
 Burns v. Bradford, 137 Pa. 361, 11 
 L. R. A. 726, ante, p. 184, n. 2, a de- 
 fect discoverable by one of a thousand 
 persons passing on a highway is 
 not notorious. See Broburg v. Des 
 Moines, 63 la. 523 ; Stoddard v. W^in- 
 chester (Mass.), 27 N. E. 1014, defects 
 in highways not existing sufficiently 
 long to imply notice ; Galveston v. 
 Smith (Tex.), 15 S. VVr. Rep. 389, de- 
 fective covering of sewer, not in exist- 
 ence long enough to justify construct- 
 ive notice. See also Klatt v. Mil- 
 waukee, 53 Wis. 196 ; Goodnough v. 
 Oshkosh, 24 Wis. 549; Madison v. 
 Baker, 163 Ind. 41 ; Sweet v. Glovers- 
 ville, 12 Hun 302; Griffin v. New 
 York, 9 N. Y. 456 (1854); Taylor v. 
 Mt. Vernon, 58 Hun (N. Y.) 384 
 (1890). 
 
 ' Wheaton v. Hadley, 131 III. 640, 23 
 N. E. Rep. 422 ; Joliet v. Weston, 123 
 111. 641, 12 West. Rep. 750 ; La Salle 
 V. Porterfield (111.), 27 N. E. Rep. 937 ; 
 Murphysboro v. Reily, 36 111. App. 1 57 
 (1 891); Chicagov. Dalle, 115 111. 386; 
 Chicago V. McCuUoch, 10 111. App. 
 459 (1881); Aurora v. Hillman, 90 III. 
 61 ; Lincoln v. Woodward, 27 N. W. 
 Rep. no; McGaffigan v. Boston, 149 
 Mass. 293; Noyes v. Gardner, 147 
 Mass. 505; Hanscomb V.Boston, 141 
 
 Mass. 242, I N. E. Rep. 723 ; Wayne 
 v. Patterson, 29 N. E. Rep. 167; 
 Porter County v. Dombke, 94 Ind. 72 ; 
 Indianapolis v. Murphy, 91 Ind. 382 
 (1883) ; Dotton v. Albion, 50 Mich. 
 129, 1 5 N. W. Rep. 46; Montgomery 
 v. Wright, 72 Ala. 411 (1882); Albrit- 
 tin v. Huntsville, 60 Ala. 486 ; Wood- 
 bury V. Dist. of Columbia, 5 Mackey 
 127; McPherson v. Dist. of Col., 18 
 Wash. L. R. 270 ; Sherwood v. Dist. 
 of Columbia, 3 Mackey 276, 51 Am. 
 Rep. 776; Smith v. Leavenworth, 15 
 Kas. 81 ; Ponca v. Crawford, 23 Neb. 
 662, 8 Am. St. Rep. 144; Lincoln v. 
 Smith (Neb.), 10 L. R. A. 740 (1890); 
 Moore v. Richmond, 85 Va. 538; 
 Carrington v. St. Louis, 89 Mo. 208, 4 
 West. Rep. 679 ; Barker v. Perry, 67 
 la. 146; Chapman v. Rochester, iio 
 N. Y. 273; Pettengill v. Yonkers, 116 
 N. Y. 558, 22 N. E. Rep. 1095 (1889); 
 Clapper v. Waterford, 62 Hun (N. Y.) 
 170 (1891). 
 
 ^ In Mattimore v. Erie (Pa.), 26 W. 
 N. C. 106, 22 Atl. Rep. 817 (1891), it 
 was said : " For some unexplained 
 reason the present action was not 
 brought against the parties who were 
 guilty of the actual negligence which 
 caused the plaintiff's injury. It was 
 brought against the city instead of the 
 Stearns Manufacturing Company. 
 The conditions of liability are very 
 different in the case of the city from 
 those which are controlling in the case 
 of the company. The liability of the 
 latter depends only upon the fact of 
 their negligence resulting in the plain- 
 tiff's injury. But the liability of the 
 city is not a necessary consequence of 
 
§i89 
 
 NOTICE. 
 
 3(>3 
 
 ever, may sometimes be shown by proof of the defective 
 character of the whole walk.^ 
 
 the mere neglect of the company. 
 Something more is required to be 
 proved in the action against the city 
 than the fact that the company was 
 guilty of the negligence which resulted 
 in the plaintiff's injury. Other ele- 
 ments enter into the inquiry as to the 
 responsibility of the city. The city 
 had nothing to do with the placing of 
 the wheel which fell upon the plaintiff, 
 and therefore cannot be charged with 
 the consequences which resulted from 
 its negligent placing. The wheel was 
 not standing in any part of the public 
 highway, and therefore the mere fact 
 of its being where it was did not con- 
 tribute to an obstruction to the travel 
 on either the road or the sidewalk. 
 While it must be conceded that a 
 municipality is chargeable with the 
 consequences of the presence of an 
 actual obstruction in the highway, as 
 soon, at least, as it can be said to have 
 knowledge of the obstruction, there is 
 scarcely a parallelism between the con- 
 ditions of liability in such circum- 
 stances and those which are required 
 in such a case as this. Of course, if 
 this wheel had been upon private 
 grounds, it will not be pretended that 
 the city would be responsible, even 
 though it stood very near to the high- 
 way. Being upon ground which, 
 though public, was not in use as a 
 highway, it certainly does not follow, 
 by any necessary inference, that the 
 city would be liable upon the principle 
 that it is an obstruction to the high- 
 way. It is plain that as the injury in 
 question was not the result of the mere 
 
 presence of the wheel on the lawn, the 
 city is not liable because of such pres- 
 ence only. We think it follows, hence, 
 that the city is not liable for the neg- 
 ligence of placing it, unless it had at 
 least distinct notice of that particular 
 negligence in the placing of either this 
 wheel or of other wheels. There was 
 not a particle of evidence of any such 
 notice as this in the case, either as to 
 this wheel or others. On the contrary, 
 there was ample proof that no accident 
 of this kind had ever occurred from 
 the placing of any of the machinery, 
 and there was no plausible or possible 
 ground of inference that an accident 
 would happen simply because of the 
 manner in which the machinery was 
 placed upon the lawn. If, then, the 
 city's liability must be worked out as 
 the consequence of a disregarded no- 
 tice, such notice must have been 
 directed to the particular negligence 
 which produced the injury, and of that 
 kind of notice there was no proof. The 
 mere fact of the presence of the ma- 
 chinery might give rise to a duty to 
 remove it, but that is not the duty 
 whose violation occasioned the injury, 
 and it is inconsequential as a source 
 of legal liability. The petition of citi- 
 zens, presented to city councils during 
 the year before the accident, was 
 rather a remonstrance against the 
 presence of the whole body of ma- 
 chinery on the lawn, as being an un- 
 sightly spectacle, and injurious to the 
 rights of property owners, than as a 
 source of danger to individuals. It 
 was charged in the petition that the 
 
 ' In Shaw v. Sun Prairie, 73 Wis. 
 105 (1889), Lyon, J., says : " The true 
 rule doubtless is that for the purpose 
 of showing constructive notice to the 
 
 town or municipality of a defect in 
 one of its highways, other defects 
 therein in the vicinity, or the general 
 bad condition of the same street, side- 
 
364 
 
 NOTICE. 
 
 §189 
 
 What length of time a defect must exist in order to 
 charge a municipality with constructive notice depends 
 largely upon the character of the defect and the place 
 
 storage of such a great quantity of 
 machinery, so near the road, would 
 tend to frighten horses and cause run- 
 aways, but there was no specific no- 
 tice of any special negligence in the 
 manner of placing particular articles. 
 We are of opinion, therefore, that the 
 facts necessary to give rise to the 
 liability of the city for this particular 
 
 injury do not appear in the testimony ; 
 and, as there was no proof that the 
 wheel that caused the injury had been 
 placed in its position any considerable 
 length of time before the accident, we 
 think the first, second, fourth, sixth, 
 and seventh assignments are sus- 
 tained." 
 
 walk, or bridge, may be shown. The 
 cases holding this rule are very numer- 
 ous. Many of these are referred to in 
 the brief of counsel for plaintiff. The 
 leading cases in this State which assert 
 or recognize the rule are Weisenherg 
 v. Appleton, 26 Wis. 56; Ripon v. 
 Bittel, 30 Wis. 614; Sullivan v. Osh- 
 kosh, 55 Wis. 508 ; Spearbracker v. 
 Larrabee, 64 Wis. 573. A remark by 
 Mr. Justice Paine, in the first of these 
 cases, is peculiarly applicable. He 
 said : ' A city, whose officers know 
 that the general condition of a walk is 
 such that from mere decay such an 
 accident is liable to happen upon it at 
 any moment, is chargeable with neg- 
 ligence if it neglects to repair, without 
 bringing home to the authorities 
 actual knowledge of the looseness of 
 the particular plank which happened 
 to occasion the injury.' " 
 
 In Shelby v. Clagett, 46 Ohio St. 
 543 (1889), it is said: .... "The first 
 proposition of the change as given, to 
 which the village excepted, was the 
 following : ' If the corporation had 
 notice that the sidewalk was generally 
 defective, it is not material whether 
 the precise defect which may have 
 caused the injury was known or not.' 
 
 " That the sidewalk had become 
 dished and generally defective in that 
 
 particular was not disputed, and in 
 view of that fact the majority of the 
 court are of opinion the charge was 
 misleading. The jury might well have 
 understood that the village was 
 charged, as matter of law, with notice 
 of the defect that caused the injury, if 
 it knew the sidewalk had become 
 dished. In order to charge, as matter 
 of law, a corporation with notice of a 
 particular defect from its knowledge 
 of the existence of a general one, the 
 first should be of the same character 
 with the latter, or at least so related 
 to it that the particular defect is a 
 usual concomitant of the general one. 
 
 . . . . " We are cited to Sherman and 
 Redfield on Negligence, vol. 2, page 
 368, in support of the proposition 
 given to the jury ; but these authors, 
 evidently, had in view defects of the 
 same general character; for the case 
 of Weisenberg v. Appleton, 26 Wis. 
 56, and Aurora v. Hillman, 90 111. 61, 
 which they cite in support of the prop- 
 osition, were both cases in which 
 the defect that caused the injury was 
 of the same character, and fairly and 
 naturally inferable from the general 
 defect of which the corporation was 
 shown to have had notice." 
 
 See infra, Chap. XXIV. 
 
§i89 
 
 NOTICE. 
 
 365 
 
 where it exists.^ If it is an obstruction, excavation, or 
 danger that will be readily perceived, obviously the 
 neglect of the authorities to observe it and to remedy 
 the trouble is greater than if it is a defect which would 
 be discovered only by close examination ; and if it exists 
 in a much traveled city street, the danger of injury from 
 it is greater and the inattention of the street authorities 
 is more blameworthy than if it is in a rarely used high- 
 way. In a city the authorities should use " active vigil- 
 ance," and sometimes the existence of a defect for a day 
 has been held sufficient to take the case to the jury.* 
 
 ' In District of Col. v. Woodbury, 
 136 U. S. 450, it was said : " No cer- 
 tain duration of a dangerous condi- 
 tion of a public highway operates of 
 itself as a notice. The law does not 
 require impossibilities of any person, 
 natural or artificial, and it is impossi- 
 ble that all parts of all the streets 
 should be under constant inspection. 
 Consequently it could not be main- 
 tained that at the instant an accident 
 happens to a highway the authorities 
 are charged with notice and held lia- 
 ble therefor if they do not put it in- 
 stantly in repair. Every such case 
 must be determined by its peculiar 
 circumstances. The District would 
 not be responsible for damages arising 
 from the bad condition of a street 
 unless actual notice was brought to 
 them of the condition of the street, 
 or unless the street remained in an 
 unsafe condition so long that they 
 ought to have known of it if they ex- 
 ercised ordinary care." 
 
 ' Supra, p. 354, n. I. Sheel v. 
 Appleton, 49 Wis. 125; Otto Town- 
 ship V. Wolf, 106 Pa. 608. In Kunz 
 v. Troy, 104 N. Y. 344 (1887), this 
 question was before the Court of Ap- 
 peals in New York and received care- 
 ful attention in a case where the ob- 
 
 struction was a heavy counter placed 
 upon a sidewalk and tilted so that it 
 could be easily thrown down, and 
 Andrews, J., said: "The counter 
 was placed on the sidewalk on Tues- 
 day and remained there until Satur- 
 day, the day of the accident, and it is 
 not claimed that meanwhile any meas- 
 ures were taken by the authorities to 
 have the obstruction removed. This 
 lapse of time, together with the fact 
 that Federal street was in a busy and 
 frequented part of the city, made it, 
 we think under the authorities, a ques- 
 tion for the jury, whether the city 
 authorities, charged with the care of 
 the public streets, ought to have 
 known of the obstruction and to have 
 caused its removal before the acci- 
 dent." See Harriman v. Boston, 114 
 Mass. 241 ; Stoddard v. Winchester, 
 27 N. E. Rep. 1030 (1891); Whitney 
 V. Lowell, 151 Mass. 212, 24 N. E. 
 Rep. 47 (1890) ; Hanscom v. Boston 
 141 Mass. 242 ; Lyman v. Hampshire, 
 140 Mass. 311 (1885); Hunt V. New 
 York, 109 N. Y. 134; Hume v. New 
 York, 74 N. Y. 264 (1878) ; Campbell 
 V. Kalamazoo, 80 Mich. 655 ; Nichols 
 v. Minneapolis, 30 Minn. 430 ; Es- 
 telle V. Lake Crystal, 27 Minn. 243 
 (1880); Yocum V. Trenton, 20 Mo. 
 
366 
 
 NOTICE. 
 
 § 190 
 
 Many cases have arisen where the defects have existed 
 for a week or two and where this has been held long 
 enough to impute notice to the corporation.^ The ques- 
 tion is one, however, which cannot be settled for all 
 places according to one rule. Nothing more than rea- 
 sonable care to discover the defects is required of any 
 municipality, and this care must be much influenced by 
 the ordinary methods of inspecting the streets under its 
 control and its means of performing this duty of in- 
 spection.^ 
 
 § 190. Duty of examination of property. — Not only must 
 a municipal corporation- inspect its streets and keep them 
 reasonably free from defects, but it must take care to ex- 
 amine all its property so that it may be in a fit condition 
 for ordinary use.^ It is charged with notice that wood 
 
 App. 489 ; Acker v. Anderson County, 
 20 S. C. 495 (1883) ; Herrington v. 
 Phoenix, 41 Hun 270; Galveston v. 
 Smith (Tex.), 15 S. W. Rep. 589 
 (1891); Cressy v. Postville, 59 la. 
 62 ; Griffin v. Johnson, 84 Ga. 279, 
 10 S. E. Rep. 719 (1890) ; Market v. 
 St. Louis, 56 Mo. 189; Fomfrey v. 
 Saratoga Springs, 104 N. Y. 459; 
 Maus V. Spring^eld, loi Mo. 613, 
 20 Am. St. Rep. 634; Tice v. Bay 
 City, 78 Mich. 269 ; Sherman and 
 Redfield on Neg., §§ 368, 369 ; Whit- 
 taker's Smith on Neg., pp. 257, 258. 
 
 1 In Turner v. Newburgh, 109 N. 
 Y. 301, 4 Am. St. Rep. 453 (1888), a 
 loose stone in a crosswalk was neg- 
 lected for a week, and this was held 
 sufficient to impute notice to the cor- 
 poration ; in Knoxville v. Bell, 12 Lea 
 (Tenn.) 157 (1883), the jury found 
 constructive notice from the presence 
 of a pile of broken brick in a street 
 from 36 hours to four or five days ; 
 in Atlanta v. Champe, 66 Ga. 659, a 
 hole in a crossing existed for about 
 two weeks, and in Grand Rapids v. 
 
 Wyman, 46 Mich. 516, there was a 
 hole in the street for ten days. 
 
 " Where a sidewalk was in a re- 
 mote city street it was held that the 
 municipality was not negligent in not 
 discovering a defect arising within 
 seven days after it was laid. Chicago 
 V. McCarthy, 75 111. 602. Cf. Chicago 
 V. Dalle, 115 III. 386. 
 
 ' La Salle v. Porterfield (111.), 27 N. 
 E. Rep. 937 (1891); Roun v. Des 
 Moines, 78 la. 63 (1889). See supra, 
 p. 234, n. I. 
 
 In Davis v. Guilford, 55 Conn. 351 
 (1887), Pardee, J., says: "Again, 
 although it is true that a safe high- 
 way may be made unsafe in the space 
 of a few minutes by an unusual rain- 
 fall ; that a traveler may therefrom 
 receive injuries before knowledge 
 could by any possibility come to any 
 selectman, and therefore before any 
 responsibility for such injuries could 
 rest upon the town ; and that the law 
 allows a reasonable time for knowl- 
 edge, and a further reasonable time 
 for action, yet the law imposes upon 
 
§ I90 
 
 NOTICE. 
 
 2>^7 
 
 and kindred substances will decay, and if it builds a bridge 
 of such material, or lays a plank sidewalk, it must guard 
 the public from injury by reason of the natural law of 
 decay.^ Such a corporation is obliged to exercise reason- 
 able care only, in watching corporate property, however, 
 and in an interesting case in New York it was held that 
 no obligation rested upon it to have periodical chemical 
 examinations made of the water which was supplied by a 
 public well, to discover whether it was pure and whole- 
 some, but that its whole duty was done when it kept the 
 well apparently free from all pollution.' 
 
 the town reasonable supervision of 
 the highway, and a want of knowl- 
 edge by its selectmen of a defect does 
 not constitute a legal excuse for in- 
 action, if ignorance is the result of 
 negligence In supervision. If the de- 
 fect was plain to the eye of any per- 
 son who would look, and had existed 
 for a great length of time, the law 
 would permit the court to impute 
 either negligence, and therefore cul- 
 pable ignorance to the defendant in 
 reference to it, or culpable delay in 
 reparation after actual knowledge." 
 See supra, §§94, 122. 
 
 ' Weber v. Creston, 75 la. 16, 8 L. 
 R. A. 778 ; McConnel v. Osage, 8 la. 
 293 ; Olsen v. Worcester, 142 Mass. 
 536, 3 N. E. Rep. 78; Vosper v. 
 Mayor (N. Y.), 17 J. & S. 296 ; How- 
 ard County V. Legg, 11 N. E. Rep. 
 614 ; Indianapolis v. Scott, 72 Me. 
 197; Rapho V. Moore, 68 Pa. 408; 
 Jones V. New Haven, 34 Conn. 13; 
 Brusso V. Buffalo, 90 N. Y. 679; City 
 V. Crawford, 53 Am. Rep. 753 ; 
 Requav. Rochester, 45 N. Y. 129; 
 Post v. Clark, 35 Conn. 342. 
 
 ' Danaher v. Brooklyn, 119 N. Y. 
 241. In this case Earl, J., says: 
 " We have thus far assumed that the 
 ■city was bound, from time to time, to 
 
 make a chemical examination of the 
 waters of the public wells for the pur- 
 pose of ascertaining whether they 
 were pure and wholesome. But we 
 are of opinion that such assumption 
 is not well founded, and that no such 
 burden rests upon the city. The city 
 has its public water-supply by running 
 water in addition to these wells. 
 The wells are furnished and kept for 
 public use by the city. It was un- 
 doubtedly the duty of the city to keep 
 the wells and pumps in good order, 
 and to keep the wells properly 
 cleaned out so that they would not 
 become contaminated by anything 
 that might be thrown into them. 
 But these wells are to be supplied by 
 water percolating through the earth ; 
 and was the city bound to anticipate 
 that such water would become im- 
 pure and dangerous in the wells ? 
 There was no proof that it was nec- 
 essary or even the natural conse- 
 quence that water in the city wells, 
 wherever they may be located, will 
 become poisonous and deleterious. 
 On the contrary, the proof shows that 
 the waters of such wells have been 
 used for years with impunity. These 
 wells were furnished for the accom- 
 modation of the public. They were 
 
368 
 
 NOTICE. 
 
 190 
 
 And in a Massachusetts case where a gutter gave way 
 thout warning it was held that no duty had been vio- 
 
 wi 
 
 not obliged to use them, and most 
 people have sufficient knowledge to 
 know that their waters may not be as 
 pure as waters brought from pure 
 streams far away from the city limits, 
 and from exposure to contamination. 
 The public may use them, and when 
 they are found unwholesome or dele- 
 terious, and the city has notice there- 
 of, it is bound to protect the public 
 health by purifying the waters or fill- 
 ing up the wells. The burden upon 
 the city is sufficient if it be held to 
 the responsibility of keeping the wells 
 and pumps in order and clean, and if 
 it be made liable for any injury result- 
 ing from the use of impure waters 
 from the wells after it has had notice 
 of their dangerous qualities, and an 
 opportunity to remove the danger. 
 The higher degree of diligence as to 
 water apparently pure and whole- 
 some, agreeable to the taste and in 
 common use by the public without 
 complaint, would be unreasonable. 
 
 " These views are not in conflict 
 with any of the authorities to which 
 our attention has been called. 
 
 " In McCarthy v. City of Syracuse 
 46 N. Y. 194, it was held that when 
 the duty was imposed by law upon a 
 public officer or municipal corpora- 
 tion, of keeping a structure in repair, 
 it involves the exercise of a reason- 
 able degree of watchfulness in ascer- 
 taining the condition of such structure 
 from time to time ; and that where 
 this is omitted such officer or corpo- 
 ration is liable for damage resulting 
 from a dilapidation of the structure, 
 which is not an ordinary result of its 
 use, and which would have been dis- 
 closed by an examination, and that 
 no notice of the defect is necessary in 
 such a case to fix the liability. There 
 
 the damage complained of resulted 
 from a defective sewer, and the city 
 was under obligation to use reason- 
 able diligence to keep it in repair, 
 and it could not escape responsibility 
 simply because it had no notice that 
 the sewer was out of repair. Here it 
 was the duty of the city to use reason- 
 able diligence to keep this well and 
 pump in repair, and to guard against 
 any dilapidation or damage resulting 
 from the well. But as we have shown 
 there was no evidence which would 
 justify a finding of culpable negli- 
 gence as to the well on the part of 
 the city. 
 
 " In Hunt V. Mayor, etc., 109 N. Y. 
 134, the plaintiff was injured by an 
 explosion of one of the man-holes of 
 a steam heating company in one of 
 the streets in the city of New York. 
 He was defeated in his action for 
 damages. . Andrews, J., writing the 
 opinion of the court, said : ' The 
 language of the cases expressing the 
 measure of duty resting upon a mu- 
 nicipal corporation in respect to its 
 streets, sewers, etc., has not always 
 been carefully guarded ; but the doc- 
 trine has been frequently reiterated 
 in this court that there is no absolute 
 guaranty or undertaking on the part 
 of a municipal corporation that its 
 streets or other constructions shall, 
 at all times, and under all circum- 
 stances, be in a safe and proper con- 
 dition, and its obligation and duty 
 extended only to the exercise of rea- 
 sonable care and vigilance. There 
 must be willful misconduct or culpa- 
 ble neglect to create liability.' Here 
 there was no willful misconduct or 
 culpable neglect on the part of the 
 city as to this well. Trees, bridges, 
 and other wooden structures will 
 
I go 
 
 NOTICE. 
 
 369 
 
 lated by the corporation, as there was no reason why the 
 authorities should guard against such a sudden breaking 
 down of the gutter.^ 
 
 necessarily decay and become unsafe, 
 and where they may thus become 
 dangerous to human life, the duty 
 devolves upon the municipality to 
 make tests and examinations, using 
 reasonable diligence to ascertain 
 whether they are safe or not. Vos- 
 per V. Mayor, etc., 17 J. & S. 296; 
 Howard v. Legg, 11 N. E. 614; Jones 
 V. New Haven, 34 Conn. 13 ; Norris- 
 town V. Mayor, 67 Penn. St. 355. 
 But this case is not analogous to 
 those. Here there is no proof justi- 
 fying the inference that the water of 
 this well was constantly and inevi- 
 tably exposed to impurities which 
 would render it dangerous to human 
 life. On the contrary the evidence 
 shows that up to about the first of 
 August its waters were wholesome 
 and free from dangerous impurities. 
 
 " This is not like the cases where a 
 city creates or permits a nuisance, or 
 turns a stream of mud or water upon 
 the premises of private individuals. 
 In such cases it is held responsible 
 for the nuisance which it creates or 
 permits, and for its wrongful acts. 
 People V. Albany, 11 Wend. 539; 
 Nevins v. City of Peoria, 41 III. 503 ; 
 Shawneetown v. Mason, 82 Id. 337. 
 
 " There was no proof in this case 
 that the city in any way polluted or 
 poisoned the water of this well or 
 permitted others to do so, and hence 
 the cases of Rex v. Medley, 6 C. & P. 
 292; Goldsmid v. Tunbridge Wells 
 I. Co., L. R. (I Eq. Cas.) 161 ; 
 Charles v. Hinckley Local Board, 52 
 L. J. (N. S.) S54; Brown v. lUius, 
 27 Conn. 84 ; Ballard v. Tomlinson, 
 L. R. (29 Ch. Div.) 115, are not in 
 point." 
 
 24 
 
 ' Rochefort v. Attleborough, 27 N. 
 E. Rep. 1013 (1891), here C. Allen, 
 J., says : " The ground on which the 
 plaintiff seeks to maintain his case is 
 that the culvert was built in an im- 
 proper manner, so that the earth 
 above it was likely to subside and 
 make a hole in the road ; and that, 
 under these circumstances, greater 
 diligence was required on the part of 
 the town authorities, in guarding 
 against injury or damage to travelers, 
 than otherwise might have been suf- 
 ficient. Olson V. Worcester, 142 
 Mass. 536, 8 N. E. Rep. 441. There 
 was, however, no evidence that the 
 hole which caused the injury to the 
 plaintiff had actually existed for any 
 such length of time before the acci- 
 dent as to make the town chargeable 
 with notice thereof, and there had 
 been no hole in the road at that place 
 for more than a year previously, al- 
 though there was much heavy travel 
 over the road, and one of the plain- 
 tiff's witnesses went so far as to 
 testify that he had himself driven 
 heavy loads across there thousands 
 of times. Under such circumstances, 
 although the culvert was not so well 
 built as to be likely to stand many 
 years without repairs, it could not 
 properly be held that the danger of a 
 subsidence of the road was so immi- 
 nent as to warrant holding the town 
 chargeable with actionable neglect. 
 It would throw too heavy a burden 
 upon towns for the court, without 
 more explicit legislation looking to. 
 that end, to hold them responsible 
 merely because a road is so con- 
 structed that a defect therein of this 
 character is.likely to occur in the re- 
 
370 NOTICE. §§ 191, 192 
 
 § 191. Notice of defects caused by snow and ice.— By 
 Statute in some States it is provided that there must be 
 actual notice of defects in streets or sidewalks caused by 
 snow or ice before there can be liability for damages re- 
 sulting therefrom. Where, however, this is not the case 
 the rule of notice does not differ where the defect in a 
 highway is caused by either of these causes. The cor- 
 poration is bound to exercise reasonable care to cure the 
 defect if it knows of it, and to discover it if no knowl- 
 edge of its existence has come to the authorities. The 
 courts, however, are much influenced by the facts dis- 
 closed in a case where an injury has been occasioned by 
 the presence of ice on the street. And municipalities 
 are held only to the exercise of reasonable care in com- 
 bating a variable winter climate. The rule in the 
 country in this respect differs from the rule in the city, 
 and what would be reasonable diligence in one place 
 might be negligence in the other. This question, how- 
 ever, is frequently controlled by statutory or charter pro- 
 visions.^ 
 
 § 192. Notice of defect distinguished from notice of injury. 
 — In the States where the liability for defective highways 
 is statutory a notice of an injury received must be given 
 within a limited time after the accident, as we have here- 
 tofore seen. And a similar requirement exists in some 
 States where the common-law liability is recognized. 
 
 This notice must be distinguished from the notice to 
 the corporation of the existence of the defect, for it 
 bears no relation to it. It is a statement in regard to 
 
 mote future. There was no apparent v. Chicopee, 147 Mass. 440, 18 N. E. 
 
 probability that the culvert would Rep. 23 1 ; Hanscom v. Boston, 141 
 
 break down all at once and without Mass. 242, 5 N. E. Rep. 249 ; Post v. 
 
 previous warning, thus making it Boston, 141 Mass. 189, 4 N. E. Rep. 
 
 dangerous to pass over it at all. 815." 
 
 McGaffigan v. City of Boston, 149 ' See supra, § 105. 
 
 Mass. 289, 21 N. E. Rep. 371 ; Adams 
 
§ 192 NOTICE. 371 
 
 the cause and nature of a specific injury and of the claim 
 for damages based upon it. It concerns an act to be 
 done by the injured person, or in his behalf, after the ac- 
 cident has occurred, while the whole object of the proof 
 of notice of the defect is to show that the corporation 
 had such notice before the injury was inflicted. A num- 
 ber of authorities in the several States relating to the 
 notice of injury have been cited in a previous chapter.^ 
 
 ' Supra, § 138. See Morrill on City Negligence, p. 173 et seq. 
 
CHAPTER XXI. 
 
 PROXIMATE CAUSE. 
 
 § 193. Damage must be justly attributable to negligence to allow recovery 
 
 194. When damage results from negligence. 
 
 195. Principles applicable to municipal corporations. 
 
 196. Accidents upon highways when horses beyond control. 
 
 197. When defect in street proximate cause. 
 
 198. Effect of statutes imposing liability. 
 
 199. When defect in street is not proximate cause. 
 
 200. Authorities relating to sidewalks. 
 
 201. Authorities relating to bridges. 
 
 202. Injury must result from negligence. 
 
 203. When increased damage is attributable to original negligence. 
 
 204. Whether negligence is proximate cause for jury. 
 
 205. Contributory negligence a branch of this subject. 
 
 § 193. Damage must be justly attributable to negligenci 
 to allow recovery. — In the first chapter of this book i 
 has been said that there can be no recovery for injuria 
 inflicted by negligence unless it appears that these in 
 juries are justly attributable to the negligent act or omis 
 sion complained of.* And although this principle i 
 thoroughly established it is often difficult to apply it t 
 particular cases and to trace the real cause of an injur 
 which has resulted from complicated and rapidly chan^ 
 ing circumstances. The aim, however, always is to pur 
 ish for negligent wrong-doing to the extent that it is jus 
 to hold the wrong-doer responsible for the consequence 
 that flow from his negligence and to no greater degre( 
 For to impose liability upon an individual for results the 
 
 Supra, % 9. 
 
§ 194 PROXIMATE CAUSE. 373 
 
 are not occasioned by his acts or omissions is manifestly 
 improper.^ 
 
 § 194. When damage results from negligence. — Without 
 attempting to discuss the many rules that have been 
 formulated upon the subject of proximate cause, and 
 which have found their most frequent exposition in rail- 
 way cases, it may be said that one principle lies at the 
 bottom of all of them, namely, that a reasonable connec- 
 tion between the negligence shown and the damage that 
 has been received must be disclosed or there can be no 
 recovery. And this one principle is far more useful 
 than any particular rule on the subject, for new combina- 
 tions of facts and circumstances continually call for re- 
 statements of special rules. But it is also a well-estab- 
 lished principle that it is not reasonable to attribute spe- 
 cial damage to a negligent act or omission if a new and 
 independent cause has operated to interfere with the 
 original act, and the courts hold individuals responsible 
 only for the damage which follows from their negligence 
 in a natural and ordinary sequence of events.* A person 
 
 ' See generally upon this subject, Sneesby v. Lancashire, etc. Ry. Co., 
 
 Beven on Neg., p. 75 et seq.\ Pollock L. R. 9 Q. B. 263, i Q. B. D. 42 ; 
 
 on Torts, p. 374 ; Sherman and Red- Adamson v. River Wear Com., L. R. 
 
 field on Neg., § 25 ^/ seq.; Bishop on 2 App. Cas. 743; Clark v. Chambers, 
 
 Non-Contract Law, § 40 et seq. ; L. R. 3 Q. B. D. 327. 
 
 Wharton on Neg., § 73 et seq.; Smith ' In Victorian Railways Com'rs v. 
 
 on Neg. (Whittaker's), p. 24; Am. Coultas, L.R. 13 App. Cas. 222(18 
 
 and Eng. Encyc. of Law, vol. 16, p. Sir Richard Couch says: "The rule 
 
 428; Knapp V.Sioux City R. Co. (la.), of English law as to the damages 
 
 50 Am. Rep. 569, note ; Sellick v. which are recoverable for negligence 
 
 Lake Shore, etc. R. Co., 52 Am. Rep. is stated by the Master of the Rolls in 
 
 165 ; Ohio and M. R. Co. v. Trow- The Notting Hill, 9 P. D. 105, a case 
 
 bridge (Ind.), 45 Am. and Eng. Rail- of negligent collision. It is that the 
 
 road Cas. 200, 26 N. E. Rep. 64 ; damages must be the natural and rea- 
 
 Lindrall v. Woods (C. C. D. Minn.), sonable result of the defendant's act ; 
 
 44 Fed. Rep. 855 ; Lilly v. New York such a consequence as in the ordinary 
 
 Central, etc. R. Co., 107 N. Y. 566 ; course of things would flow from the 
 
 Vicars v. Wilcocks, 2 Smith's Lead, act." 
 
 Cas., gth ed., 577 ; Smith v. London, Sherman & Redfield (Negligence, 
 
 etc. Railway Co., L. R. 6 C. P. 14; §26) say: "The breach of duty upon 
 
374 
 
 PROXIMATE CAUSE. 
 
 § 19' 
 
 being once negligent is answerable for the consequencei 
 of his wrong-doing so far as these consequences are the rea 
 sonable results of his act or omission,^ but he is relievec 
 
 which an action is brought must be 
 not only the cause, but iht proximaie 
 cause of the damage to the plaintiff. 
 We adhere to this old form of words, 
 because, while it may not have origi- 
 nally meant what is now intended, it 
 is not immovably identified with any 
 other meaning, and is the form which 
 has been so long in use that its rejec- 
 tion would make nearly all reported 
 cases on the question involved and un- 
 intelligible. The proximate cause of 
 an event must be understood to be 
 that which, in a natural and continu- 
 ous sequence, unbroken by any new 
 cause, produces that event, and with- 
 out which that event would not have 
 occurred. Proximity in point df time 
 or space, however, is no part of the 
 definition. That is of no importance, 
 except as it may afford evidence for or 
 against proximity of causation. That 
 is the proximate cause which is most 
 proximate in the order of responsible 
 causation." See Am. & Eng. Encyc. 
 of Law,, vol. 1 6, p. 436. 
 
 Beven (Negligence, p. 90) says : 
 " There are two stages to be consid- 
 ered in imputing liability : First, the 
 act of the defendant must be such 
 that damage arises as its natural and 
 ordinary consequence ; and that im- 
 poses the liability; if the consequences 
 following from the act are not natural 
 and ordinary, then the liability for 
 negligence does not arise. Secondly, 
 when the act is once established as a 
 negligent act, then the consequences 
 following therefrom are referable to 
 the original act of negligence and be- 
 come parts of the negligence for which 
 the defendant is liable, irrespective of 
 any question of their greater or less 
 
 probability of occurrence, with refer 
 ence only to their direct emanatioi 
 from the act which a previous deci 
 sion has noted as actionable negli' 
 gence. The limit of the defendant's 
 responsibilities is not reached till il 
 can be pointed out that some agencj 
 has intervened that either has 01 
 might have diverted the act into a 
 fresh channel ; and so that in the or> 
 dinary course, and proceeding on the 
 ordinary assumption that every one 
 acting in the course of the matter had 
 done what was to be expetted in the 
 circumstances, the act actually hap- 
 pening would have been diverted ot 
 defeated." • 
 
 ' Pollock on Torts, p. 36, says ; 
 "Now, a reasonable man can be 
 guided only by a reasonable estimate 
 of probabilities. If men went about 
 to guard themselves against every 
 risk to themselves or others which 
 might by ingenious conjuncture be 
 conceived as possible, human affairs 
 could not be carried on at all. The 
 reasonable man, then, to whose ideal 
 behavior we are to look as the stand- 
 ard of duty, will neither neglect what 
 he can forecast as probable, nor waste 
 his anxiety on events that are barely 
 possible. He will order his precaution 
 by the measure of what appears likely 
 in the known course of things. This 
 being the standard, it follows that if 
 in a particular case (not being within 
 certain special and more stringent 
 rules) the harm complained of is not 
 such as a reasonable man in the de- 
 fendant's place should have foreseen 
 as likely to happen, there is no wrong 
 and no liability. And the statement 
 proposed, though not positively laid 
 
§ 194 
 
 PROXIMATE CAUSE, 
 
 375 
 
 from liability when the consequences of his negligence 
 outrun reason, or when some new, independent, and su- 
 perseding cause terminates the effect of his wrong-doing.^ 
 
 down, in Greenland v. Chaplin, per 
 Pollock, C. B. (1850), s Ex., at p. 248, 
 namely, ' that a person is expected to 
 anticipate and guard against all rea- 
 sonable consequences, but that he is 
 not, by the law of England, expected 
 to anticipate and g^ard against that 
 which no reasonable man would exr 
 pect to occur,' appears to contain the 
 only rule tenable on principle where 
 the liability is founded solely on negli- 
 gence. ' Mischief which could by no 
 possibility have been foreseen, and 
 which no reasonable person would 
 have anticipated,' may be the ground 
 of legal compensation under some rule 
 of exceptional severity, and such rules, 
 for various reasons, exist ; but under 
 an intelligible rule of due care and 
 caution it cannot be taken into ac- 
 count." 
 
 Hayes v. Michigan Central R.R. 
 Co., Ill U. S. Rep. 228 (1884), Mr. 
 Justice Matthews says : " It. is further 
 argued that the direction of the court 
 below was right, because the want of 
 a fence could not reasonably be 
 alleged as the cause of the injurj'. In 
 the sense of an efficient cause, causa 
 causans, this is no doubt strictly true ; 
 but that is not the sense in which the 
 law uses the term in this connection. 
 The question is, was it causa sine qua 
 non, a cause which if it had not exist- 
 ed, the injury would not have taken 
 place, an occasional cause ? and that 
 is a question of fact, unless the causal 
 connection is evidently not proximate. 
 Milwaukee & St. Paul Railroad Com- 
 pany V. Kellogg, 94 U. S. 469. The 
 rule laid down by Willes, J., in Dan- 
 iel V. Metropolitan Railway Company, 
 L. R. 3 C. P. 216, 222, and approved 
 
 by the Exchequer Chamber, L. R. 3 
 C. P. 591, and by the House of Lords, 
 L. R. 5 H. L. 45, was this: 'It is 
 necessary for the plaintiff to establish 
 by evidence circumstances from which 
 it may fairly be inferred that there is 
 reasonable probability that the acci- 
 dent resulted from the want of some 
 precaution which the defendants 
 might and ought to have resorted 
 to '; and in the case of Williams v. 
 Great Western Railway Company, L. 
 R. 9 Excheq. 157, where that rule was 
 applied to a case similar to the pres- 
 ent, it was said (p. 162) : ' There are 
 many supposable circumstances under 
 which the accident may have happen- 
 ed, and which would connect the acci- 
 dent with the neglect. If the child 
 was merely wandering about and he 
 had met with a stile, he would proba- 
 bly have been turned back ; and one, 
 at least, of the objects for which a 
 grate or stile is required, is to warn 
 people of what is before them, and to 
 make them pause before reaching a 
 dangerous place like a railroad.' " 
 
 ' In Curtin v. Somerset (Pa.), 23 
 Am. St. Rep. 220, 12 L. R. A. 322 
 (1891), Paxson, Ch. J., says: "The 
 contention of the plaintiff is, that the 
 accident was caused by the defective 
 construction of the porch ; that it was 
 not according to the plans and speci- 
 fications called for by the contract ; 
 that timber inferior in size and quality 
 to those called for by the plans- were 
 used ; that these defects were not ob- 
 servable after the building was com- 
 pleted, and, in point of fact, were 
 unknown to the company when it 
 accepted the building from the con- 
 tractor. We must assume these alle- 
 
376 
 
 PROXIMATE CAUSE. 
 
 § 194 
 
 The concurring negligence of a third person will not, 
 however, relieve one who has been negligent from re- 
 
 giitions as substantially found by the 
 jury, and the question arises, What is 
 the responsibility of the contractor 
 under such circumstances ? That he 
 would be responsible to the company 
 for any loss sustained by it in conse- 
 quence of his failure to erect the 
 building in conformity to the plans 
 and specifications may be conceded. 
 There was a contractual relation be- 
 tween them, and for breach of a con- 
 tract, not known to, and approved by, 
 the company, he would be liable. Is he 
 also liable for injury to a third person, 
 not a party to the contract, sustained 
 by reason of defective construction ? 
 It is very clear that he was not re- 
 sponsible by force of any contractual 
 relation, for, as before observed, there 
 was no contract between these parties, 
 and hence there could have been no 
 breach. If liable at all, it can only be 
 for a violation of some duty. It may 
 be stated, as a general proposition, 
 that a man is not responsible for a 
 breach of duty where he owes no duty. 
 What duty did the defendant owe to 
 the plaintiff? Thelatter was not upon 
 the porch by the invitation of the de- 
 fendant. The proprietor of the hotel, 
 or whoever invited or procured the 
 presence of the plaintiff there, may be 
 said to have owed him a duty, — the 
 duty of ascertaining that the porch 
 was of sufficient strength to safely 
 hold the guests whom he had invited. 
 The plaintiff contended, however, 
 that, as the hotel company was not re- 
 sponsible, the contractor must neces- 
 sarily be so. This, however, is mov- 
 ing in a circle. It by no means fol- 
 lows that, because A is not responsi- 
 ble for an accident, B or some other 
 person must be. 
 
 " Authorities are not abundant 
 upon this point, for the reason that it 
 is comparatively new. I do not know 
 of any direct ruling upon it in this 
 State. The true rule, which we think 
 applicable to it, may be found in 
 Wharton on Negligence, sec. 439. It 
 is as follows : ' There must be causal 
 connection between the negligence 
 and the hurt; and such causal con- 
 nection is interrupted by the interpo- 
 sition between the negligence and the 
 hurt of any independent human 
 agency. Thus, a contractor is em- 
 ployed by a city to build a bridge in a 
 workmanlike manner, and after he 
 has finished his work, and it has been 
 accepted by the city, a traveler is hurt 
 while passing over it by a defect 
 caused by the contractor's negligence. 
 Now, the contractor may be liable 
 upon his contract to the city for his 
 negligence, but he is not liable to the 
 traveler in an action on the case for 
 damages. The reason sometimes 
 given to sustain such a conclusion is, 
 that otherwise there would be no end 
 to suits. But a better ground is, that 
 there is no causal connection between 
 the traveler's hurt and the contractor's 
 negligence. The traveler reposed no 
 confidence on the contractor, nor did 
 the contractor accept any confidence 
 from the traveler. The traveler, no 
 doubt, reposed confidence on the city 
 that it would have its bridges and 
 highways in good order ; but between 
 the contractor and the traveler inter- 
 vened the city, an independent, re- 
 sponsible agent, breaking the causal 
 connection." See supra, % 193 ; in- 
 fra, % 203. 
 
§§ I95> 196 PROXIMATE CAUSE. 377 
 
 sponsibility unless this negligence is the sole proximate 
 cause of the damage. If the negligence of the third per- 
 son is a result that is likely to follo\y from the original 
 wrong-doing, it is reasonable to attribute the damage 
 produced by the concurring acts to either party. And 
 this rule, in all its requirements, is now well estab- 
 lished in the law.^ 
 
 § 195. Principles applicable to municipal corporations. — 
 These principles have an important place in the law of 
 negligence of municipal corporations and control many 
 of the cases that are presented for decision. The ques- 
 tions in regard to which they are most frequently resorted 
 to and most fully illustrated by the authorities, relate to 
 accidents upon highways. Although in all instances the 
 municipality will escape liability if it can show that 
 some other cause than its own negligence is in justice 
 responsible for the damage received.* 
 
 § 196. Accidents upon highways when horses beyond 
 control. — Accidents often occur upon highways claimed 
 to be defective when horses are temporarily beyond the 
 control of their drivers and also when they have entirely 
 escaped from control. In some States it is held that 
 when all control over a horse is lost, the damage then 
 following arises from the condition of the horse and not 
 from any defect that may exist in the way, and that there- 
 fore such a defect is not the proximate cause of an injury 
 thus occasioned.' This view, however, is not generally 
 
 '/«/ra, §§210, 217. 1014; Smith v. Kanawha Co. (W. 
 
 ' See Kistner v. Indianapolis, 100 Va.), 33 W. Va. 713, 11 S. E. Rep. i ; 
 
 Ind. 210; Willey v. Belfast, 61 Me. Romney Marsh v. Trinity House, L. 
 
 S7S : Page v. Bucksport, 64 Me. 53 ; R. 7 Ex. 247, 5 Ex. 208. Supra, 
 
 Hanney v. Kansas City, 94 Mo. 334; § 193. 
 
 Moss V. Burlington, 60 la. 438, 46 'In Higgins v. Boston, 148 Mass. 
 
 Am. Rep. 82 (1883) ; Dubuque Wood 484 (1889), C. Allen, J., says : " This 
 
 Co. V. Dubuque, 30 la. 176; Beall v. case falls fully within several decisions 
 
 Athens Tp. (Mich.), 45 N. W. Rep. of this court. The horse had got 
 
378 
 
 PROXIMATE CAUSE. 
 
 196 
 
 held/ and the better rule is that even although a horse 
 has escaped entirely from control, his owner is still en- 
 
 out of the control of the driver when 
 off from the highway, and at a dis- 
 tance of about one hundred and sixty- 
 six feet from the place of the alleged 
 defect, namely, the want of a railing 
 or fence ; and when the highway was 
 reached, the driver had not regained 
 control sufficiently to enable him safe- 
 ly to turn and drive along it, and 
 therefore he drove directly across, 
 and upon the adjoining land. The 
 city was not bound so to construct 
 the avenue that a runaway horse 
 could come upon it, and cross it at 
 right angles, and leave it with safety. 
 Even if a railing would have been 
 useful to the plaintiff (which is doubt- 
 ful), the want of it was not the sole 
 cause of his injury. The uncontrol- 
 lable condition of the horse contrib- 
 uted directly to it, and that condition 
 arose outside of the limits of the high- 
 way, and at such a distance from the 
 place of the alleged defect that the 
 city is not responsible. Adams v. 
 Natick, 13 Allen 429 ; Fogg v. Na- 
 hant, 98 Mass. 578, and 106 Mass. 
 278; Richards v. Enfield, 13 Gray 
 344 ; Titus V. Northbridge, 97 Mass. 
 258." 
 
 In Spaulding v. Winslow, 74 Me. 
 528, Peters, J., said : " The plaintiff 
 was traveling with horse and wagon 
 upon a road in the town of Winslow, 
 when his horse took fright at a hole, 
 or at the fresh covering of a hole, in 
 a culvert crossing the road, and by 
 the conduct of the horse the wagon 
 was carried into the ditch, the plain- 
 tiff was thrown therefrom, and there- 
 by received a personal injury. The 
 plaintiff alleges that the road was de- 
 fective for not having a railing be- 
 
 tween the traveled way and the ditch 
 adjoining 
 
 " If the horse became, by fright, 
 unmanageable, substantially freeing 
 himself from the control of the driver, 
 and the upset ensued from such un- 
 manageableness, then the fright of 
 the horse should be regarded as a 
 proximate cause, or one of the proxi- 
 mate causes, of the accident. The 
 legal condition of the case would be 
 essentially or precisely the same as 
 existed in the cases cited, Moulton v. 
 Sandford, 51 Maine 127; Perkins v. 
 Fayette, 68 Maine 1 52. There were 
 two causes in those cases, to produce 
 the accident, for one of which the 
 town was not legally responsible. So 
 in the case at bar, under the condi- 
 tions assumed, two proximate causes 
 would exist, or if only one existed, 
 then the fright of the horse would be 
 the sole cause of the accident. 
 
 " If, however, the horse, while being 
 properly driven, upon sight of the 
 hole suddenly started or shied, and 
 swerved or sheered a few feet from 
 the direct line of travel, and, through 
 only a momentary loss of control by 
 the driver, threw the wagon into the 
 ditch on account of the want of a 
 railing, and the road was defective 
 for want of a railing, in such case the 
 misadventure of the horse should not 
 be considered as causing the acci- 
 dent. Every irregularity in the move- 
 ment of a horse is not imputable to 
 some fault or vice. Perfection of con- 
 duct is not to be expected. We think 
 it was correctly said by Chapman, J., 
 in Titus v. Northbridge, 97 Mass. 
 266, that ' a horse is not to be con- 
 sidered as uncontrollable that merely 
 
 ' See supra, § 84. See also Bowts v. Boston, 29 N. E. Rep. 633. 
 
§196 
 
 PROXIMATE CAUSE. 
 
 379 
 
 titled to demand that an injury shall not be occasioned by 
 an obstruction in the way or by a dangerous excavation 
 adjoining the highway, and that he can recover for any 
 damage that results from a failure of the authorities to 
 keep the highway in a reasonable condition for ordinary 
 use,^ Thus where a horse took fright and when running 
 
 shies or starts, or is momentarily not 
 controlled by the driver.' .... 
 
 " It is not an easy thing to establish 
 a general rule as to what may be con- 
 sidered unmanageableness of horses, 
 and much depends upon the circum- 
 stances of each case that arises. The 
 distinctions which we make in this 
 case are well established by the cases 
 in Massachusetts and elsewhere. Ti- 
 tus V. Northbridge, supra ; Stone v. 
 Hubbardston, loo Mass. 49 ; Gushing 
 V.Bedford, 125 Mass. 526; Wright v. 
 Templeton, 132 Mass. 49 ; Hey v. 
 Philadelphia, 81 Pa. St. 50; Kennedy 
 V. New York, 73 N. Y. 365 ; Nichols 
 V. Brunswick, 3 Cliff. 81 ; 2 Thomp. 
 on Neg., 1207, and cases in note." 
 
 See Aldrich v. Gorham, ^^ Me. 
 287 ; Agnew v. Corunna, 55 Mich. 
 428 (1885). 
 
 ' In Ivory v. Deerpark, 116 N. Y. 
 476 (1889), Bradley, J., says : " The 
 question of the contributory negli- 
 gence of the plaintiff was one of fact 
 for the determination of the jury, and 
 it was properly submitted to them. 
 
 " There would not, necessarily, have 
 been any imputation of negligence of 
 the plaintiff in the proposition, if so 
 found, that the horses were running 
 away or were beyond his control, and, 
 therefore, there was no error in the 
 refusal of the court to charge the jury 
 that, in such case, unless the jury 
 could say from the evidence that the 
 accident would have occurred had the 
 norses been going at an ordinary rate 
 of speed, or were under control, the 
 
 defendant was entitled to a verdict. 
 While, in case the horses were beyond 
 the control of the plaintiff, such fact 
 may have been a proximate cause of 
 the injury, it did not, provided the 
 plaintiff was free from fault, relieve the 
 defendant from liability if the danger 
 and injury of the plaintiff, as the con- 
 sequence, resulted from the negligence 
 of the highway commissioner. In that 
 case there would be two approximate 
 causes of the accident, and the respon- 
 sibility would rest with the defendant 
 if one of such causes was attributable 
 to the fault of the commissioners. 
 Ring V. City of Cohoes, 77 N. Y. 83." 
 
 In Byerly v. Anamosa (la.), 44 N. 
 W. Rep. 359 (1890), Beck, J., says: 
 " Counsel for defendant insists that 
 the court erred in an instruction in 
 which the defendant is held liable for 
 injuries resulting from plaintiff's horse 
 becoming unmanageable from fright, 
 and in that condition running over the 
 bank. Moss v. City of Burlington, 60 
 Iowa 438, 15 N. W. Rep. 267, is cited 
 in support of this position. This case 
 holds that where a horse, which the 
 owner left tied to a post, became 
 frightened, broke loose, and ran down 
 a bank, and was killed, the plaintiff 
 could not recover. In that case the 
 horse was not being driven by the 
 owner, so that, if it were possible, he 
 could have controlled it, and directed 
 its course. He had left it tied to a 
 post. The city was not liable for the 
 insufficient fastening of the horse, or 
 for its escape, through fright, from 
 
380 PROXIMATE CAUSE. § I97 
 
 away fell into an unguarded excavation and was killed 
 the city was held liable.^ And so where a horse taking 
 fright at a street car ran away and collided with an 
 obstruction in the street the city was held responsible ; ^ 
 and when a horse on a wharf belonging to a city got 
 beyond the control of the driver, and owing to the absence 
 of string-pieces backed off into the water, recovery was 
 had from the corporation.^ 
 
 § 197. When defect in street proximate cause. — If a de- 
 fect exists in a public street this would seem to be the 
 true cause of an injury received from contact with that 
 defect. What might have happened had there been no 
 such contact is wholly speculative, and it cannot be as- 
 sumed that similar damage or even any damage would 
 have resulted had it not been for the unsafe character of 
 the highway. Where a defect is of such a character that 
 its danger consists in its liability to frighten horses,^ for 
 
 sufficient fastenings. The plaintiff's case GilfiUan, C. J., said ; " In cases 
 injury was caused by the escape of the of tort the application in this court of 
 horse. After it escaped it was free to the rule as to proximate cause is this, 
 go anywhere. In the case before us, that where several concurring acts or 
 plaintiff was attempting to exercise conditions of things — one of them, the 
 control of her horse. Had there been wrongful act or omission of the de- 
 no defect in the street, the accident fendant — produce the injury, and it 
 would not have happened ; for there would not have been produced but for 
 would have been no bank over which such wrongful act or omission, such 
 the horse could have run. It was act or omission is the proximate cause 
 simply the case of a runaway horse, of the injury if the injury be one which 
 and of injury resulting from defect or might reasonably be anticipated as a 
 impediment in the street, and in this natural consequence of the act or 
 respect it is not different from Mander- omission. " 
 
 schid V. City of Dubuque, 25 Iowa ' Kennedy v. New York, 73 N. Y. 
 
 108 ; Fowler v. Town of Strawberry 365 (1878); Macauley v. New York, 
 
 Hill, 74 Iowa 644, 38 N. W. Rep. 67 N. Y. 602. ~ 
 
 521 ; Martin v. Town of Algona, 40 ■* Supra, % 86. 
 
 Iowa 390." In Caincross v. Pewaukee (Wis.), 
 
 See supra, % 84. 10 L. R. A. 473, 47 N. W. Rep. 13 
 
 ' Crawfordsville v. Smith, 79 Ind. (1890), Taylor, J., says: "The liabil- 
 
 308, 41 Am. Rep. 612. ity of a town or other municipality 
 
 " Campbell v. Stillwater, 32 Minn, for permitting objects which are nat- 
 
 308, 50 Am. Rep. 566 (1884). In this urally calculated to frighten teams to 
 
§197 
 
 PROXIMATE CAUSE. 
 
 ?8i 
 
 another reason the municipality is responsible for the 
 damage that reasonably follows. In this class of cases 
 the neglect of the corporation causes the frightening of 
 the horse, and whether this results in his shying or in his 
 escaping from the control of the driver can make no 
 difference in the principle of responsibility, assuming 
 that there has been no contributory negligence in driving 
 an unsuitable horse. In either event the damage that it 
 is reasonable to expect to follow upon the negligence of 
 the corporation is chargeable to it until some intervening 
 cause interrupts the connection.' 
 
 remain within the limits of a highway 
 arises out of the fact that they are 
 permitted to be there for an unlawful 
 purpose. The allegations of the com- 
 plaint in this case are clearly suffi- 
 cient to raise at least a question of 
 fact to be determined by the jury, 
 that at the time in question this 
 steamboat was unlawfully within the 
 street in question. The questions 
 raised in this case have been very 
 ably discussed by the Supreme Court 
 of New Hampshire in Graves v. Shat- 
 tuck, 35 N. H. 257, and Winship v. 
 Enfield, 42 N. H. 197, 217, and that 
 court arrived at the same conclusion 
 that this court did in the cases above 
 cited, and in the cases of Foshay v. 
 Glen Haven, 25 Wis. 288 ; Little v. 
 City of Madison, 42 Wis. 643 ; Bar- 
 stow v. City of Berlin, 34 Wis. 357, 
 and Hearney v. Railway Co., 47 Wis. 
 153, 2 N. W. Rep. 82." See Sher- 
 man and Redfield on Neg., § 346. 
 
 ' In Lowery v. Manhattan Railway 
 Co., 99 N. Y. 158 (1885), where fire 
 fell from a locomotive of an elevated 
 railroad. Miller, J., said : " In the 
 case under consideration, the driver 
 was passing along in pursuit of his 
 customary business driving his horse, 
 when suddenly the falling of the fire 
 
 upon himself and the horse placed 
 him in a position of great danger, and 
 he was justified in attempting to save 
 his own life and protect himself from 
 injury. If he made a mistake in his 
 judgment, the company was not re- 
 lieved from liability. If he had al- 
 lowed the horse to continue on in its 
 own way, it is by no means clear that 
 a similar, if not greater injury might 
 not have been inflicted upon some 
 other person than the plaintiff. It is 
 impossible to determine what the re- 
 sult might have been in such a case, 
 and therefore it is indulging in spec- 
 ulation to say that the driver's act, 
 under the circumstances, was not the 
 best thing that could have been done. 
 In such cases, it is difficult to discon- 
 nect the final injury from the primary 
 cause, and say that the damages ac- 
 cruing are not the natural and neces- 
 sary result of the original wrongful 
 act. The defendant was chargeable 
 with an unlawful act, which inflicted 
 an injury upon the driver and the 
 horse in the first instance, and ulti- 
 mately caused the injury sustained by 
 the plaintiff. The injury originally 
 inflicted was in the nature of a tres- 
 pass, and the result which followed 
 was the natural consequence of the 
 
382 
 
 PROXIMATE CAUSE. 
 
 § 197 
 
 But in one case where horses were frightened by an 
 ash heap negligently left in a highway, and having es- 
 caped from control were killed by a locomotive five 
 miles away, it was held that this was not a result for 
 which the corporation was responsible ; a conclusion not 
 easily reconcilable with other authorities on this question,' 
 
 act. So long as the injury was 
 chargeable to the original wrongful 
 act of the defendant, it is not appar- 
 ent, in view of the facts, how it can 
 avoid responsibility. There was no 
 such intervening human agency as 
 would authorize the conclusion that 
 it was the cause of the accident, and 
 therefore it cannot be said that the 
 damages were too remote. 
 
 " The company would clearly be lia- 
 ble for any direct injury arising from 
 the falling of the burning coals upon 
 the horse if it had been left to pursue 
 its own course uncontrolled by the 
 driver, and there would seem to be no 
 reason why it would not be equally 
 liable where the driver seeks to con- 
 trol the horse, and exercises his best 
 judgment in endeavoring to prevent 
 injury. That he failed to do so for 
 want of strength or by reason of an 
 error of judgment does not prevent 
 the application of the principle which 
 controls in such a case. 
 
 " It may, we think, be assumed that 
 such an accident might occur in a 
 crowded street where conveyances 
 are constantly passing, and that the 
 driver of the horse, who might possi- 
 bly be injured by the defendant's un- 
 lawful act, would seek to guide the 
 animal, and if possible, prevent un- 
 necessary injury. The action of the 
 driver, in view of the exigency of the 
 occasion, whether prudent or other- 
 wise, may well be considered as a 
 continuation of the original act, which 
 was caused by the negligence of the 
 
 defendant, and the defendant was lia- 
 ble as much as it would have been if 
 the horse had been permitted to pro- 
 ceed without any control whatever. 
 We think that the damages sustained 
 by the plaintiff were not too remote, 
 and that the wrongful act of the de- 
 fendant, in allowing the coals to es- 
 cape from the locomotive, thus caus- 
 ing the horse to become frightened 
 and run, was the proximate cause of 
 the injury, and that the running away 
 of the horse and the collision with the 
 plaintiff were the natural and prob- 
 able consequences of the negligence 
 of the defendant. 
 
 " These views are fully sustained by 
 the decisions of the courts. Scott v. 
 Shepherd, 2 W. Black 892; Lynch 
 V. Nurdin, i Ad. &. El. (N. S.) 29 ; 
 Former V. Geldmecher, 13 Rep. 790; 
 Vaughn v. Menlove, 32 Eng. C. L. 
 613; Guille V. Swan, 19 Johns. 381; 
 Thomas v. Winchester, 6 N. Y. 397 ; 
 Vandenburgh v. Truax, 4 Denio 464 ; 
 Webb V. R. W. & O. R.R. Co., 49 N. 
 Y. 420 ; Pollett V. Long, 56 Id. 200; 
 Putnam v. B'd'y, etc. R.R. Co., 55 
 Id. 108." 
 
 See also Forney v. Geldmacher, 75 
 Mo. 113,42 Am. Rep. 388; Merrill 
 V. Claremont, 58 N. H. 468 ; Turner 
 v. Buchanan, 82 Ind. 147, 42 Am. 
 Rep. 485 ; Billman v. Indianapolis R. 
 Co., 76 Ind. 166; BrooksviUe v. 
 Pumphrey, 59 Ind. 78 ; Ward v. 
 North Haven, 43 Conn. 148. 
 
 Supra, § 193 ; infra, §206. 
 
 'West Mahoney v. Watson, 112 
 
197 
 
 PROXIMATE CAUSE. 
 
 383 
 
 Frequently several causes co-operate to produce the 
 damage which follows upon the negligence of a munici- 
 pality in respect to its highways ; and, where the com- 
 mon-law rule of liability exists, there is no different rule 
 applicable to these cases than that which generally con- 
 trols. A cause which operates as a natural and ordinary 
 result of the preceding negligence is occasioned by that 
 negligence, and the consequences that flow from it are 
 the reasonable results of the original wrong-doing.^ 
 
 Pa. 574. In the opinion of the court 
 ft is said: "In determining what is 
 proximate cause the true rule is that 
 the injury must be the natural and 
 probable consequence of the negli- 
 gence ; such a consequence as under 
 the surrounding circumstances of the 
 case might and ought to have been 
 foreseen by the wrong-doer as likely to 
 flow from his act." See Chicago v. 
 Schmidt, 107 111. 186 (1883). 
 
 ' Galveston v. Posnainsky, 62 Tex. 
 1 18 (1884), Stayton, Associate Justice, 
 says : " There were but two possible 
 causes of the injury, under the evi- 
 dence, if there was no failure to exer- 
 cise due care by the plaintiff. 
 
 " The fall must have resulted from 
 the defective sidewalk or ditch con- 
 tiguous to it, or from defects in both, 
 and the injury must have resulted 
 fron> the fall, or, the fall so resulting, 
 the plaintiff must have been injured 
 by falling on some substance in the 
 ditch. 
 
 " Under the other charges given the 
 jury must have found that the plain- 
 tiff used due care, and must have 
 found that there was neglect on the 
 part of the city, or their verdict would 
 necessarily have been different. 
 
 " If there were broken bottles, other 
 pieces of glass, or sharp instruments 
 in the ditch, without which the in- 
 jury, notwithstanding the fall, would 
 
 have resulted, even then, though 
 these things could not have proved 
 hurtful without the fall, if the fall was 
 caused by the defective condition of 
 the sidewalk, then it must be deemed 
 the proximate cause of the injury. 
 Ring V. City of Cohoes, ^^ N. Y. 83 ; 
 Palmer v. The Inhabitants of Ando- 
 ver, 2 Cush. 601. 
 
 " If the injury resulted from one of 
 the causes, or from the two combined, 
 if such cause would not have existed 
 but for the neglect of the city, then it 
 would be liable, if there was no fail- 
 ure on the part of plaintiff to exercise 
 due care." 
 
 In Ring v.Cohoes, ^^ N.Y. 83 (1879), 
 it was said : " When two causes com- 
 bine to produce an injury to a traveler 
 upon a highway, both of which are in 
 their nature proximate, — the one being 
 a culpable defect in the highway, and 
 the other some occurrence for which 
 neither party is responsible, — the mu- 
 nicipality is liable, provided the injury 
 would not have been sustained but 
 for such defect." See Ehrgott v. New 
 York, 96 N. Y. 264 (1884) ; Ward v. 
 North Haven, 43 Conn. 148 ; Hey v. 
 Philadelphia, 81 Pa. 44, 22 Am. Rep. 
 733; Wagner v. Jackson Tp., 133 Pa. 
 61 (1890); Hull V. Kansas City, 54 
 Mo. 599; Bassett v. St. Joseph, 53 
 Mo. 290; Hampson v. Taylor, 15 R. 
 I. 83, I N.E. Rep. 117 ; Lake v. Mil- 
 
384 
 
 PROXIMATE CAUSE. 
 
 195 
 
 § 198. Effect of statutes imposing liability.— Anothe; 
 important consideration to be kept in mind is that th( 
 statute liability for defective higiiways in certain locali 
 ties may have an important bearing upon this subject 
 As, for example, in Massachusetts it is held that undei 
 the statute existing there, the defect must be " the soh 
 cause " of the injury.* But to understand what is meant 
 by the sole cause, the decisions must be examined, for, as 
 is said in the case quoted from in the note : " A town is 
 not exonerated because other causes co-operate with the 
 defect ; if it were, it never would be liable."* The effect 
 
 liken, 62 Me. 240, 16 Am. Rep. 456 ; 
 Wilson V. Atlanta, 60 Ga. 473 ; Phil- 
 lips V. Ritchie County, 31 W. Va. 
 477 ; Fulsome V. Concord, 46 Vt. 135 ; 
 Ricker v. Freeman, 50 N. H. 420, 9 
 Am. Rep. 267. 
 
 ' Horrigan v. Clarksburg, 1 50 Mass. 
 218, supra, p. 242, n. 5. 
 
 ' In Hayes V. Hyde Park, 153 Mass. 
 514, 27 N. E. Rep. 522, 12 L. R. A. 249 
 (1891), Holmes, J., says: "The main 
 argument for the defendant is that 
 whether the wire was a defect or not, 
 it was not the sole cause of the in- 
 jury, but that the conduct of the driver 
 of the other wagon concurred in bring- 
 ing about the plaintiff's hurt. If in 
 the opinion of the jury the other 
 driver was negligent as toward the 
 plaintiff, and thus had a hand in caus- 
 ing the injury, no doubt the plaintiff 
 cannot recover. Kidder v. Dunstable, 
 7 Gray 104 ; Pratt v. Weymouth, 147 
 Mass. 245, 252, 6 N. E. Rep. 671. 
 But the jury might have found that 
 the other driver was not negligent, 
 and indeed that, until it was too late, 
 he was wholly unaware of his entan- 
 glement, or that there was a wire in 
 the road at all. If so, his co-opera- 
 tion stood on no different footing from 
 the force of gravitation. 
 
 " A town is not exonerated becaus( 
 other causes co-operate with the de 
 feet ; if it were, it never would be lia^ 
 ble. Human causes stand no differ 
 ently from any others, merely as such 
 The limit of the statutory liability 
 towns is only the strictest form of thi 
 limit of the liability of wrong-doers, t( 
 an extent not yet, perhaps, exactly de 
 termined. Wrong-doers are presumec 
 not to contemplate wrong-doing bj 
 others, unless they are shown in faci 
 and actually to have contemplated it 
 Therefore, generally, they are not lia 
 ble if another wrong-doer intervene 
 between their act and the result 
 Tasker v. Stanley (Mass.), Jan. 12 
 1891. But the mere fact that anothei 
 human being intervenes is not enough 
 Elmer v. Fessenden, 151 Mass. 359 
 362, 363, 5 L. R. A. 724 ; Carney v 
 Shanly, 107 Mass. 568, 581 ; Carte 
 v. Towne, 98 Mass. 567 ; McDonak 
 v. Snelling, 14 Allen 290, 296. Hi: 
 intervention is important, not qm 
 cause, but qua wrong-doer. In thi 
 case of towns sued for a defect in thi 
 highway, the wrongful acts of the thin 
 person need not intervene subse 
 quently. It is enough that it co-op 
 erates with the defect at the moment 
 but the principle is the same. It i 
 
§ 199 
 
 PROXIMATE CAUSE, 
 
 385 
 
 of the rule seems to be to confine liability to those cases 
 which are shown by the decisions of the courts to come 
 within the meaning of the phrase, " the sole cause." 
 
 In Maine it is also held that the damage must result 
 from the defect in the way as a sole cause.' 
 
 § 199. When defect in street is not proximate cause. — If 
 the negligence of the municipality in allowing a defect to 
 
 because the act is wrongful (including 
 under this head negligence), not be- 
 cause it is a concurring cause that the 
 defendant escapes. If the act which 
 concurs with the defect in producing 
 the result complained of is innocent 
 and is of a kind which the defendant 
 is bound to expect and to provide for, 
 such, for instance, as another man's 
 driving upon the road, the jury may 
 find against the town as well as when 
 a particular state of the weather is a 
 concurrent cause. Flagg v. Hudson, 
 142 Mass. 280, 3 N. E. Rep. 652. It 
 can make no difference whether the 
 defect brings the plaintiff into contact 
 with the innocent vehicle, as in Flagg 
 V. Hudson, or the innocent vehicle 
 brings the plaintiff into contact with 
 the defect, as the jury might find to 
 have been the fact here. The act of 
 the third party is equally necessary to 
 the result, and is equally innocent in 
 the two cases. We will add that 
 there is no question before us of re- 
 moteness in the sense discussed in 
 Marble v. Worcester, 4 Gray 395, and 
 McDonald v. Snelling, 14 Allen 290, 
 292." 
 
 In Flagg V. Hudson, 142 Mass. 280, 
 it was said : " If the plaintiff's husband 
 voluntarily turned the horse to the 
 left, to avoid the danger of the bug- 
 gy's tipping over, and this was done 
 under a reasonable apprehension that 
 the buggy would otherwise tip over in 
 consequence of the slope which con- 
 stituted a defect in the way, and the 
 25 
 
 result was the collision and the in- 
 jury, the defect would still be consid- 
 ered as the cause of the injury if the 
 plaintiff and her husband used due 
 care. The apparent danger must, of 
 course, be such that the means taken 
 to avoid it are reasonable under the 
 circumstances. If the injury was 
 caused by the combined effect of the 
 defect in the way and of the negli- 
 gence of the driver of the hack, the 
 plaintiff cannot recover ; but this re- 
 quires that there should be two con- 
 current operative causes of the injury. 
 Kidder v. Dunstable, 7 Gray 104 ; 
 Rowell v. Lowell, 7 Gray 100. In 
 Bemis v. Arlington, 114 Mass. 507, 
 the stones, the sight of which fright- 
 ened the horse, were held not to be a 
 defect in the way ; and if the ridge 
 was a defect, it was but remotely con- 
 nected with the injury." 
 
 ' Aldrich v. Gorham, ^^ Me. 287 
 (1885). Here it is said: "It is un- 
 doubtedly the law of this State, as 
 settled in a line of decisions from 
 Moore v. Abbott, 32 Me. 46, to the 
 present time, that in order to render a 
 town or city liable on account of an 
 accident happening on a highway, it 
 must appear that the defect in the way 
 was the sole cause of the injury. If 
 any other efficient, independent cause, 
 for which the town is not responsible, 
 contributes directly to produce such 
 injury, the town or city is not liable.'' 
 
 See Perkins v. Fayette, 68 Me. 
 152. 
 
386 
 
 PROXIMATE CAUSE. 
 
 199 
 
 exist in a street would not have produced injury to the 
 plaintiff save for the wrongful act, not flowing from the 
 original negligence, of some responsible third person, 
 then it is the neglect of duty by this latter person that 
 occasions the injury and the corporation is not responsi- 
 ble.^ The negligence of irresponsible persons will not 
 
 ' Alexander v. New Castle, 115 
 Ind. 51 (1888), where a special consta- 
 ble was thrown into an excavation in 
 a street by a person under arrest. 
 Niblack, C. J., says : " Complaint is 
 first made of the overruling the de- 
 murrer to the second paragraph of 
 the answer, and this complaint is 
 based upon the claim that, as the pit 
 or excavation so wrongfully and neg- 
 ligently permitted to remain open and 
 uninclosed afforded Heavenridge the 
 opportunity of throwing the plaintiff 
 into it as a means of escape, it was, 
 in legal contemplation, the proximate 
 cause of the injuries which the plain- 
 tiff received. 
 
 " However negligent a person, or a 
 corporation, may have been in some 
 particular respect, he, or it, is only 
 liable to those who may have been 
 injured by reason of such negligence, 
 and the negligence must have been 
 the proximate cause of the injury 
 sued for. 
 
 " Where some independent agency 
 has intervened and been the imme- 
 diate cause of the injury, the party 
 guilty of negligence in the first in- 
 stance is not responsible. 
 
 "Heavenridge was clearly an in- 
 tervening, as well as an independent, 
 human agency in the infliction of the 
 injuries of which the plaintiff com- 
 plained." 
 
 In Mahogany v. Ward, 16 R. I. 
 479 (1889), a traveler, by the wrong- 
 ful act of another in keeping the 
 middle of the road, was forced to the 
 
 side and against a post placed there, 
 and it was held that this wrongful act 
 was an intervening cause, — Matteson, 
 J., saying : " The rule above stated is 
 subject to the qualifications that, if 
 the intervening act is such as might 
 reasonably have been anticipated as 
 the natural or probable result of the 
 original negligence, the original neg- 
 ligence will, notwithstanding such in- 
 tervening act, be regarded as the 
 proximate cause of the injury, and 
 will render the person guilty of it 
 chargeable. Wharton, Law of Neg- 
 ligence, § 145 ; 2 Thompson on Neg- 
 ligence, 1089, § 6 ; Lane v. Atlantic 
 Works, III Mass. 136, 139, 141 ; 
 Griggs v. Fleckenstein, 14 Minn. 8i ; 
 Clark V. Chambers, L. R. 3 Q. B. 
 Div. 327 ; Burrows v. March Gas & 
 Coke Co., L. R. 7 Exch. 96, 97; 
 Dixon v. Bell, 5 M. & S. 198, 199; 
 Illidge v. Goodwin, 5 Car. & P. 190, 
 192 ; Lynch v. Nurden, 5 Jur. 797. 
 But we do not think that it can be 
 reasonably held that the town ought 
 to have anticipated, as a probable re- 
 sult of permitting the post to remain 
 by the side of the road, that some one 
 would be forced against it by the wrong- 
 ful and unlawful conduct of another 
 in keeping the middle of the traveled 
 path, instead of turning to the right of 
 the center of it as required by the 
 statute. In Parker v. City of Cohoes, 
 10 Hun 531, affirmed 74 N. Y. 610, 
 the water commissioners of the city of 
 Cohoes, acting under authority of law, 
 made an excavation in one of the streets 
 
§ 200 PROXIMATE CAUSE. 387 
 
 relieve the municipality, however, for the fact that chil- 
 dren and persons non compos will be upon the streets and 
 will not be governed by the same considerations that 
 control ordinary individuals, is known to the corporation, 
 and is one of the conditions in regard to which they 
 must conform their conduct. And the negligence of a 
 person of this character will be no protection to the cor- 
 poration.^ But the limit of responsibility is reached 
 when an independent wrongful act of a third party 
 interrupts the causal connection, or when any responsi- 
 ble cause which it is not reasonable to consider a fair 
 sequence of the original negligence intervenes between 
 the accident and the injury.^ 
 
 § 200. Authorities relating to sidewalks. — An interesting 
 question has arisen in reference to ice upon a sloping 
 sidewalk, namely, whether the ice or the sloping character 
 of the sidewalk is responsible for an accident occasioned 
 by slipping thereon, or whether both causes operate to 
 produce the result. In some localities the courts hold 
 that the sloping character of the walk is the responsible 
 cause,^ while in others it is held that the court will not 
 
 for the purpose of laying water-pipes that the defendant was not bound to 
 for the public and general use, and, in anticipate mischievous or wrongful 
 so doing, caused earth to be thrown acts on the part of others, and hence 
 out along the trench ; and also brought was not bound to guard against 
 into the street a heap of sand for use them. See also Doherty v. Inhabit- 
 in the work. At the end of the day, ants of Waltham, 4 Gray 596 ; Mc- 
 barriers consisting of planks, extend- Ginity v. The Mayor of New York, 
 ing from sidewalk to sidewalk, sup- etc., 5 Duer 674." 
 ported by barrels, placed in the street, ' Supra, % 7. 
 
 were erected to prevent vehicles from ' See upon the question of what is 
 entering the street. Subsequently an intervening cause ; Boss v. North- 
 some person, without the atlthority or em P. R. Co. (N. D.), 49 N. W. Rep. 
 knowledge of the commissioners, re- 655 ; Schumaker v. St. Paul & D. R. 
 moved one of the barriers, and the Co. (Minn.), 12 L. R. A. 257, 48 N. 
 plaintiffin the darkness drove through W. Rep. 559; Fawcett v. Pittsburg 
 the opening thus made, ran upon the Ry., 24 W. Va. 755, and cases cited 
 obstruction, and Was thrown from his by authorities, supra, § 194. 
 carriage and injured. It was held ^ Supra, \ 104. 
 
388 
 
 PROXIMATE CAUSE. 
 
 200 
 
 assert responsibility for this cause without proof that it 
 was effective in producing the injury.^ The inquiry in a 
 
 ' In Taylor v. Yonkers, 105 N. Y. 
 202 (1887), where the injury was re- 
 ceived by falling on newly formed ice 
 and plaintiff recovered at the trial, 
 Finch, J., said : " Had that been the 
 whole of the case a recovery would 
 have been impossible. But this new 
 ice formed on a slope, having a fall 
 toward the curb of six or seven inches 
 in ten feet, which the city had negli- 
 gently suffered to remain. If that 
 slope was one concurring cause of the 
 fall without which the accident would 
 not have happened, the city is liable. 
 We have stated the rule to be that 
 ' when two causes combine to produce 
 an injury to a traveler upon a high- 
 way, both of which are in their nature 
 proximate, the one being a culpable 
 defect in a highway, and the other 
 some occurrence for which neither 
 party is responsible, the municipality 
 is liable, provided the injury would not 
 have been sustained but for such 
 defect. Ring v. City of Cohoes, TJ 
 N. Y. 83, 88. Now the jury were 
 plainly charged that the new ice re- 
 cently formed furnished no ground of 
 negligence on the part of the city, and 
 it necessarily followed that the jury 
 found the slope of the walk to have 
 been a concurrent cause without 
 which the accident would not have 
 happened. The only remaining in- 
 quiry is whether there were any facts 
 which permitted that inference, or 
 whether there were none, and the con- 
 clusion was mere guess and specula- 
 tion. The fact proved was that the 
 plaintiff slipped on the new ice lying 
 on a slope. The inference, it is claimed, 
 is natural and logical and sustained 
 by common observation and experi- 
 ence that both of the conditions 
 entered into the accident as proximate 
 
 causes. But no one can say that if 
 the new ice had spread over a level 
 the plaintiff would not have fallen, and 
 there is nothing in the case pointing 
 to the slope as a concurrent cause be- 
 yond the bare fact that it existed, and 
 so nothing to redeem the inference 
 sought from the domain of mere guess 
 and speculation. The question in- 
 volved has been quite earnestly de- 
 bated in other States where it arose 
 under statutes requiring towns to keep 
 the streets safe and convenient. In 
 Maine and Massachusetts it is held 
 that if, besides the defect in the way, 
 there is also another proximate cause 
 of the injury contributing directly to 
 the result, for which neither of the 
 parties is in fault, the town is not liable. 
 Moore v. Abbott, 32 Me. 46 ; Moulton 
 V. Sanford, 51 Id. 127; Marble v. 
 Worcester, 4 Gray 392 ; Billings v. 
 Worcester, 102 Mass. 329. These 
 rulings are based largely upon two 
 grounds, that the town is liable for 
 the defect alone, and that the propor- 
 tion of injury due to that cause is im- 
 possible to be ascertained. A contrary 
 rule is held in Vermont and New 
 Hampshire. Hunt v. Pownal, g Ver. 
 41 1 ; Winship v. Enfield, 42 N. H. 
 197. We have already stated the 
 rule to be in this State that the defect, 
 even when a concurring cause, must 
 be such that without its operation the 
 accident would not have happened. 
 Where the defect is the sole explana- 
 tion of the injury there is no difficulty ; 
 but where there is also another, for 
 which no one is responsible, we have 
 held that ' the plaintiff must fail if his 
 evidence does not show that the dam- 
 age was produced by the former cause.' 
 Searles v. Manhattan R. Co., loi N. 
 Y. 661. And we added that he must 
 
§ 200 
 
 PROXIMATE CAUSE. 
 
 389 
 
 case of this character is, what caused the particular damage ? 
 The slippery ice is in itself a sufficient cause, but if 
 there is no negligence in regard to that, the fact that 
 it is combined with another cause which by itself would 
 not produce the injury, gives no intimation that the latter 
 cause furnished the true reason for the injury. But where 
 there is a clear defect in a sidewalk which produces the 
 damage received, there will be responsibility although 
 other causes concur to produce the injury. Thus 
 where there was no railing at the side of a raised walk, 
 and a boy, in a struggle was pushed over the edge 
 and was injured, it was held that the want of the railing 
 was the proximate cause of the injury.^ But in such a 
 
 fail also if it is just as probable that 
 the injury came from one cause as the 
 other, because he is bound to make 
 out his case by a preponderance of 
 evidence, and the jury must not be 
 left to a mere conjecture or to act up- 
 on a bare possibility. In this case 
 that rule was violated. The plaintiff 
 slipped upon the ice. That by itself 
 was a sufficient, certain, and operating 
 cause of the fall. No other explana- 
 tion is needed to account for what hap- 
 pened. It is possible that the slope 
 of the walk had something to do with 
 it. It is equally possible that it did 
 not. There is not a particle of proof 
 that it did. To affirm it is a pure 
 guess and an absolute speculation. 
 Are we to send it to a jury for them 
 to imagine what might have been? 
 The great balance of probability is 
 that the ice was the efficient cause ; 
 there is no probability not wholly 
 speculative that the slope was also 
 such. Its descent was slight, not 
 quite an inch in a foot, and not more 
 than constantly occurs in the streets 
 of a city. No knowledge or intelli- 
 gence can determine or ascertain 
 
 that such a slope had any part or 
 share in the injury, and to send the 
 question to the jury is simply to let 
 them guess at it, and then upon that 
 guess to sustain a verdict for damages. 
 I am quite willing to hold cities and 
 villages to a reasonable performance 
 of duty ; but I am not willing to make 
 them practically insurers by founding 
 their liability upon mere possibil- 
 ities." 
 
 Supra, % 104. 
 
 See Elliott on Roads and Streets, 
 
 P- 459- 
 
 ' Carterville v. Cook, 129 111. 152, 
 16 Am. St. Rep. 248 (1889). Mr. 
 Justice Scholfield says in this case : 
 "The evidence given upon the trial 
 tended to prove that the plaintiff, a 
 boy of some fifteen years of age, while 
 in the observance of ordinary care for 
 his own safety, passing along a much 
 used sidewalk of the defendant, was, 
 by reason of the inadvertent or negli- 
 gent shoving by one boy of another 
 boy against him, jostled or pushed 
 from the sidewalk, at a point where it 
 was elevated some six feet above 
 ground, and was unprotected by rail- 
 
39° 
 
 PROXIMATE CAUSE. 
 
 200 
 
 case it would be essential to show that the corporation 
 was negligent in not maintaining a railing ; and if an injury 
 
 ing or other guard, and thereby seri- 
 ously injured in one of his limbs. 
 
 " The objection urged against the 
 ruling in refusing and modifying 
 instructions, presents the question 
 whether, conceding the negligence of 
 the defendant in omitting to reasona- 
 bly guard the sidewalk at the point 
 where plaintiff was injured, by railing 
 or otherwise, the concurring negli- 
 gence of a third party over whom it 
 had no control, in producing the in- 
 jury, releases it from liability. The 
 Supreme Court of Massachusetts have 
 held in Rowell v. City of Lowell, 7 
 Gray 103 ; Kidder v. Dunstable, Id. 
 104 ; and Shephard et ux v. Inhabit- 
 ants of Chelsea, 4 Allen 113, that it 
 does. These cases, however, seem to 
 rest, to some extent, upon the phrase- 
 ology of the Massachusetts statute, 
 which is less comprehensive, in this 
 class of cases, than is the ruling in 
 this court. Chicago v. Keefe, Admr., 
 114 111. 222. At all events, we are 
 committed to a different line of ruling 
 upon this question. In Joliet v. Ver- 
 ley, 35 111. 58 ; Bloomington v. Bay, 
 42 Id. 503 ; and City of Lacon v. Page, 
 48 Id. 500, we held, that if a person, 
 while observing due care for his per- 
 sonal safety, be injured by the com- 
 bined result of an accident and the 
 negligence of a city or village, and the 
 injury would not have been sustained 
 but for such negligence, yet, although 
 the accident be the primary cause of 
 the injury, if it was one which com- 
 mon prudence and sagacity could not 
 have foreseen and provided against, 
 the negligent city or village will be 
 liable for the injury. 
 
 " It is not perceived how, upon 
 principle, the intervention of the neg- 
 
 ligent act of a third person, over 
 whom neither the plaintiff nor the de- 
 fendant has any control, can be differ- 
 ent in its effect or consequence, in 
 such case, from the intervention there- 
 in of an accident having a like effect. 
 The former no more than the latter 
 breaks the causal connection of the 
 negligence of the city or village with 
 the injury. The injured party can no 
 more anticipate and guard against the 
 one than the other, and the elements 
 which constitute the negligence of the 
 city or village must be precisely the 
 same in each case ; and we have 
 accordingly held, that where a party 
 is injured by the concurring negligence 
 of two different parties, each and both 
 are liable, and they may be sued joint- 
 ly or separately. Wabash, St. Louis 
 & Pacific Ry. Co. v. Shacklet, Admx., 
 105 III. 364; Transit Co. v. Shacklet, 
 119 Id. 232. And this is abundantly 
 sustained by decided cases elsewhere. 
 Northern Pennsylvania Railroad Co. 
 V. Mahoney, 57 Pa. St. 187; Cleve- 
 land, etc. Railroad Co. v. Terry, 8 
 Ohio (N. S.) 570; Smith v. N. Y. S. 
 & W. Railroad Co., 46 N. J. L. 7; 
 Webster v. Hudson River Railroad 
 Co., 30 N. Y. 260 ; Patterson on Rail- 
 way Accident Law, sees. 39, 95, and 
 cases cited in notes appended to each 
 section. See also Sherman and Red- 
 field on Negligence (2d ed.), sees. 10, 
 27, 46, 401. And we have applied the 
 same rule in a suit for negligence 
 against a municipal corporation. Pe- 
 oria V. Simpson, no III. 301. 
 
 "The Massachusetts rule seems to 
 be applied also in Maine (Moulton 
 V. Sanford, 51 Me. 127 ; Wellcome v. 
 Leeds, Id. 313), but it seems to have 
 been elsewhere repudiated when the 
 
20I 
 
 PROXIMATE CAUSE. 
 
 391 
 
 was occasioned to one who was straying from the 
 walk his own act and not the defect would be the prox- 
 imate cause of the injury.^ 
 
 § 201. Authorities relating to bridges. — A case has been 
 recently decided in Iowa,* which affords a striking con- 
 trast to the case of Carterville v. Cook, cited in the pre- 
 ceding section. In the case referred to, a horse, while 
 being driven on a bridge, fell against the railing at the 
 side, which broke, and serious damage resulted. It ap- 
 peared that the fall of the horse against the railing was 
 due to sudden sickness or choking, and the court held 
 that the final damage was due not to the character of the 
 
 question has been considered. See 
 Hunt V. Pennell, 9 Vt. 411, and au- 
 thorities cited supra." 
 
 See also Childrey v. Huntington 
 (W. Va.), II L. R. A. 313, 12 S. E. 
 Rep. 536 (1890). 
 
 ' Supra, §§ 83, 96. 
 
 ' McLain v. Garden Grove, 12 L. R. 
 A. 482 (1891). Here, Robinson, J., 
 says : " Under the evidence submitted 
 we do not think tliat is a matter about 
 which there can be any controversy. 
 The horse which Miller was driving 
 fell because it was diseased, or not 
 properly harnessed and driven. The 
 width of the bridge and the condition 
 of the railing had nothing to do with 
 its fall and death. Had it not fallen, 
 the accident would not have occurred. 
 The railing of the bridge was about 
 two and a half feet high, and it may 
 be true that, had it been of sufficient 
 height and strength to bear the weight 
 of the horse, the accident would have 
 been avoided. But defendant was not 
 an insurer against accidents. 2 Dil- 
 lon, Mun. Corp., § 789 ; Raymond v. 
 Lowell, 6 Cush. 524. It was its duty 
 to provide for the use of the bridge 
 in the usual manner, and to guard 
 
 against ordinary contingencies, or 
 those which might be reasonably ap- 
 prehended. It was its duty to pro- 
 vide railings of sufficient height and 
 strength to prevent horses and other 
 animals from walking off at the side, 
 and to resist any weight and pressure 
 which would be applied under ordi- 
 nary circumstances ; but it was not its 
 duty to provide a railing which would 
 successfully resist the weight of a 
 horse of ordinary size precipitated 
 . suddenly against it. It is said that if 
 the bridge had been wider the horse 
 might have been turned when it was 
 discovered that there was no snow on 
 the bridge, but there is no evidence to 
 justify the claim that the horse would 
 have been turned under any circum- 
 stances. On the contrary, it is shown 
 that Miller knew the bridge was bare 
 before he drove onto it. We conclude 
 that the condition of the railing and 
 the narrowness of the bridge were not 
 the proximate cause of the injuries 
 sustained by plaintiff. See De Camp 
 V. Sioux City, 74 Iowa 392 ; Handelun 
 V. Burlington, C. R. & N. R. Co., 72 
 Iowa 710; Knapp v. Sioux City & P. 
 R. Co., 65 Iowa 93." 
 
392 
 
 PROXIMATE CAUSE. 9 202 
 
 railing or the bridge, but to the unusual and unexpected 
 attack of sickness, which occasioned the fall of the 
 horse. The fact that the municipality was not negligent 
 would seem to have been the controlling point in this 
 case, however, for it is intimated in the opinion that 
 the railing was sufficient for ordinary protection, and 
 asserted that no duty rested upon the corporation to 
 guard against such an accident as happened. 
 
 Assuming that the corporation was negligent in main- 
 taining a defective bridge, however, it would seem in 
 accordance with the generally accepted principle govern- 
 ing the subject of proximate cause, that there would be 
 responsibility for an accident occasioned by the com- 
 bined negligence of these two causes.^ 
 
 Municipalities are not usually liable for accidents 
 occasioned by horses taking fright at a bridge ; ^ but 
 if an object is negligently left thereon by the authpri- 
 ties and is one which is calculated to frighten ordinarily 
 gentle horses, there will be responsibility for the result- 
 ing damage.^ And where a bridge is without a railing 
 or is defective in any manner and its condition is re- 
 sponsible for the damage done to a traveler, recovery can 
 be had from the corporation maintaining it.* 
 
 § 202. Injury must result from negligence. — The cause 
 producing the injury must be the negligence of the cor- 
 
 > Supra, \ 197. not be frightened by them. If they 
 
 ' In Fuhon County v. Rickel, 106 are kept reasonably safe for use by 
 
 Ind. 501 (1886), Elliott, J., says : "We those who properly go upon them, no 
 
 think that our law imposes no other more is required." 
 
 or greater duty upon counties with re- « See Acker v. Anderson, 20 S. C. 
 
 spect to bridges than that of using 495 ; Sprague v. Bristol, 63 N. H. 430. 
 
 ordinary care and diligence to make Supra, % 84. 
 
 and keep them safe for travel for those * See Ward v. North Haven, 43 
 
 who go upon them for that purpose. Conn. 148 (1875); Page v. Bucksport, 
 
 We do not believe that they are bound 64 Me. 51. Consult supra, §§109, 
 
 to erect sightly structures, nor to so 121. 
 
 maintain them as that animals shall 
 
§ 202 
 
 PROXIMATE CAUSE. 
 
 393 
 
 poration ; and if it is not, there can be no recovery. Tlius 
 where there was a collision with a post adjoining a high- 
 way, which the corporation was not negligent in allow- 
 ing to be there, no wrong-doing is chargeable to the cor- 
 poration, and no recovery can be had from it.^ And 
 where an accident was occasioned by driving on a ridge 
 of sand piled in a street temporarily, during work on a 
 street railway track, it was held that the presence of the 
 ridge in the street was the proximate cause of the injury, 
 and that no case was made out against the city.* 
 
 ' See Gaudin v. Carthage, 36 N. Y. 
 St. Rep. 308, 12 N. Y. Supp. 796; 
 Mahogany v. Ward, 16 R. I. 479, 
 supra, % 199. 
 
 ' In Zanger v. Detroit, 49 N. W. 
 Rep. 879 (1891), Long, J., says : " It 
 is claimed on behalf of the street rail- 
 way company that there is no proof 
 of negligence upon its part ; that it 
 was repairing its track at or near the 
 place of the accident, and it had a 
 right to deposit material taken from 
 between the rails at the side of its 
 track ; and that it would not be liable 
 if it removed the deposit within a 
 reasonable time. We think counsel 
 is correct in this contention. It was 
 held in Bowen v. Railway Co., 54 
 Mich. 502, 20 N. W. Rep. 559, that, 
 in an action to recover for injuries 
 caused by an obstruction to the high- 
 way, it is proper for the plaintiff to 
 base his right of action upon the ob- 
 struction as unlawful at the time of 
 the injury, and it rests upon the de- 
 fense to show that the obstruction 
 was lawful under the circumstances ; 
 that it is always a sufficient answer to 
 say that the obstruction was in the 
 highway only a reasonable time, and 
 for a lawful purpose. It appears in 
 the present case that the obstruction 
 
 had only remained there in the high- 
 way, placed by the defendant street 
 railway company, for a few hours, 
 and not an unreasonable length of 
 time. This doctrine was also laid 
 down in Cowan v. Railway Co., 84 
 Mich. 583, 48 N. W. Rep. 166, in 
 which it was said : ' In the ordinary 
 course of operation of its street railway, 
 the defendant was engaged in repair- 
 ing and laying its track, which it had 
 the undoubted right to do ; and it was 
 not negligence for it to excavate and 
 throw up earth while thus engaged. 
 The proofs do not show that the earth 
 was allowed to remain there an un- 
 reasonable time, nor does the declara- 
 tion allege that it was allowed to re- 
 main there in the night-time, or with- 
 out lights or barriers.' The proofs in 
 the present case have no tendency to 
 show any negligence on the part of 
 the street railway company. So far 
 as the defendant city is concerned, 
 there is no proof tending to make a 
 case in favor of the plaintiff against 
 it. The proximate cause of the in- 
 jury was this ridge of sand across 
 which the plaintiff drove." 
 
 See Cleveland v. New Jersey Steam- 
 boat Co., 125 N. Y. 299. 
 
394 
 
 PROXIMATE CAUSE. 
 
 203 
 
 § 203. When increased damage is attributable to original 
 negligence. — A municipal corporation is responsible not 
 only for the original damage occasioned by its negligence, 
 but for all the damage which follows in natural sequence 
 from the original injury.^ Thus if death results from a 
 
 ' In Ehrgott v, New York, 96 N. 
 Y. 264 (1884), Earl, J., says: "It is 
 sometimes said that a party charged 
 with a tort, or with breach of contract, 
 is liable for such damages as may 
 reasonably be supposed to have been 
 in the contemplation of both parties 
 at the time, or with such damage as 
 may reasonably be expected to result, 
 under ordinary circumstances, from 
 the misconduct, or with such dam- 
 ages as ought to have been foreseen 
 or expected in the light of the attend- 
 ing circumstances, or in the ordinary 
 course of things. These various 
 modes of stating the rule are all apt 
 to be misleading, and in most cases 
 are absolutely worthless as guides to 
 the jury. Leonard v. N. Y., etc. 
 Tel. Co., 41 N. Y. 544. Parties, 
 when they make contracts, usually 
 contemplate their performance and 
 not their breach, and the conse- 
 quences of a breach are not usually 
 in their minds, and it is useless to 
 adopt a fiction in any case that they 
 were. When a party commits a tort 
 resulting in a personal injury, he can- 
 not foresee or contemplate the con- 
 sequences of his tortious act. He 
 may knock a man down, and his 
 stroke may, months after, end in 
 paralysis or in death — results which 
 no one anticipated or could have 
 foreseen. A city may leave a street 
 out of repair, and no one can antici- 
 pate the possible accidents which 
 may happen, or the injuries which 
 may be caused. Here nothing short 
 of Omniscience could have foreseen 
 
 for a minute what the result and effect 
 of driving into this ditch would be. 
 Even for weeks and months after the 
 accident the most expert physicians 
 could not tell the extent of the in- 
 juries. 
 
 " The true rule, broadly stated, is 
 that a wrong-doer is liable for the 
 damages which he causes by his mis- 
 conduct. But this rule must be prac- 
 ticable and reasonable, and hence it 
 has its limitations. A rule to be of 
 practicable value in the administra- 
 tion of the law, must be reasonably 
 certain. It is impossible to trace any 
 wrong to all its consequences. They 
 may be connected together and in- 
 volved in an infinite concatenation of 
 circumstances. As said by Lord Ba- 
 con, in one of his maxims (Bac. 
 Max. Reg. i) : 'It were infinite for 
 the law to judge the cause of causes, 
 and their impulsion one of another ; 
 therefore it contenteth itself with the 
 immediate cause, and judgeth of acts 
 by that, without looking to any further 
 degree.' The best statement of the 
 rule is that a wrong-doer is responsi- 
 ble for the natural and proximate 
 consequences of his misconduct ; and 
 what are such consequences must 
 generally be left for the determination 
 of the jury. Milwaukee & St. P. R. 
 Co. v. Kellogg, 94 U. S. 469. We 
 are, therefore, of opinion that the 
 judge did not err in refusing to charge 
 the jury that the defendant was liable 
 ' only for such damages as might rea- 
 sonably be supposed to have been in 
 the contemplation of the plaintiff and 
 
20' 
 
 PROXIMATE CAUSE. 
 
 395 
 
 disease brought about by the injury, or damage is greatly 
 increased by an erroneous or unwise method of treat- 
 ment by physicians, the person causing the first injury 
 must respond for the increased damage if there is no in- 
 
 defendant as the probable result of 
 the accident.' 
 
 " The judge charged the jury that 
 the defendant was liable to the plain- 
 tiff, even if the disease from which 
 he suffered were solely due to his 
 exposure to the cold and rain after 
 the accident, provided he was free 
 from fault and negligence in the ex- 
 posure. I am inclined to think that 
 there was no error in this portion of 
 the charge. The exposure was the 
 direct and proximate result of the ac- 
 cident. The plaintiff and his family 
 were unavoidably forced from his car- 
 riage into the rain and cold by the 
 accident, and were thus exposed to 
 those elements in consequence of de- 
 fendants' wrong. It was in the night- 
 time, and they could not remain in 
 the carriage, and he could not avoid 
 the rain. He was bound to exercise 
 reasonable prudence in taking care of 
 himself and avoiding the conse- 
 quences of the wrong done. He 
 had the option to stand in the street 
 where the accident had placed him, or 
 to go home, exercising reasonable pru- 
 dence and the best judgment he had. 
 There is thus such a direct connec- 
 tion between the accident and the 
 exposure as to make the defendant 
 liable for the latter. It must, how- 
 ever, be admitted that there is con- 
 siderable authority in opposition 
 to these views. Hobbs v. L. & S. 
 W. R. Co., L. R. 10 Q. B. Ill ; Mc- 
 Mahon v. Field, 44 L. T. (N. S.) Ch. 
 Div. 175 ; Waller v. M. G. W. Rail- 
 way Co., 12 Ir. L. T. 145 ; Pullman 
 Palace Car Co. v. Barker, 4 Col. 344 ; 
 Indianapolis, etc. R. Co. v. Bimey, 71 
 
 111. 391 ; Francis v. St. L. Transfer 
 Co., 5 Mo. App. 7. But the views 
 expressed are not condemned by any 
 authority in this State, and are fairly 
 sustained by the cases of Williams v. 
 Vanderbilt, 28 N. Y. 217, and Ward 
 v. Vanderbilt, 4 Abb. Ct. of App. 
 Dec. 521. 
 
 " But even if the portion of the 
 charge just referred to was erroneous, 
 it was entirely harmless, as the jury 
 found that the diseases from which 
 the plaintiff suffered were the direct 
 result both of the accident (the break- 
 ing of the axle and his falling over 
 the dashboard) and the subsequent 
 exposure, and that the effect of the 
 exposure was simply to increase and 
 aggravate the injury received from the 
 accident. The jury found that the plain- 
 tiff was blameless for the subsequent 
 exposure, and, therefore, so far as 
 that operated in causing injury to the 
 plaintiff, it was a cause for which he 
 was not responsible. There were, 
 according to the finding of the jury, 
 two causes operating to produce plain- 
 tiff's injuries, each of which was es- 
 sential to produce the results. The 
 accident without the exposure, and 
 the exposure without the accident, 
 would not have caused them. This 
 case then comes within the principle 
 decided in Ring v. City of Cohoes, 
 77 N. Y. 83 Here, as I un- 
 derstand the findings of the jury, the 
 plaintifl's injuries would not have been 
 suffered but for the strain and shock 
 of the accident. While both causes 
 were proximate, that was the nearest 
 and most direct. Still further. It 
 was certainly impossible for the plain- 
 
396 
 
 PROXIMATE CAUSE. 
 
 204 
 
 tervening, new cause which operates to produce it.^ The 
 contributory negligence of the plaintiff, however, will be 
 such a cause, and if this can be shown there will be no 
 further responsibility.^ 
 
 § 204. Whether negligence is proximate cause usually 
 for jury.— The question whether the negligence of a 
 municipal corporation is the proximate cause of an 
 injury is for the jury to decide, if the facts are in dispute, 
 or if the inferences from the facts are not clear and indis- 
 putable. The province of the jury upon this question 
 has been clearly shown by an opinion of the United 
 States Supreme Court which also illustrates forcibly the 
 principle that it is a reasonable connection only that the 
 law endeavors to discover between negligence and the 
 resulting damage.^ 
 
 tiff to prove, or for the jury to find, 
 how much of the injury was due to 
 either cause alone. It was wholly 
 impossible to apportion the damage 
 between the two causes. Shall this 
 difficulty deprive the plaintiff of all 
 remedy ? We answer, no. The wrong 
 of the defendant placed the plaintiff 
 in this dilemma, and it cannot com- 
 plain if it is held for the entire dam- 
 age.'' See infra, Chap. XXV. 
 
 ' See supra, n. i, p. 394. 
 
 * See infra, § 227. 
 
 ' Milwaukee, etc. Railway Co. v. 
 Kellogg, 94 U. S. 469 (1876), Mr. 
 Justice Strong says : " The true rule 
 is, that what is the proximate cause 
 of an injury is ordinarily a question 
 for the jury. It is not a question of 
 science or of legal knowledge. It is 
 to be determined as a fact, in view of 
 the circumstances of fact attending it. 
 The primary cause may be the proxi- 
 mate cause of a disaster, though it 
 may operate through successive in- 
 struments, as an article at the end of 
 
 a chain may be moved by a force ap- 
 plied to the other end, that force 
 being the proximate cause of the 
 movement, or as in the oft-cited case 
 of the squib thrown in the market- 
 place, 2 BI. Rep. 892. The question 
 always is, was there an unbroken 
 connection between the wrongful act 
 and the injury, a contin.uous opera- 
 tion } Did the facts constitute a con- 
 tinuous succession of events, so linked 
 together as to make a natural whole, 
 or was there some new and independ- 
 ent cause intervening between the 
 wrong and the injury ? It is admitted 
 that the rule is difficult of application. 
 But it is generally held, that, in order 
 to warrant a finding that negligence, 
 or an act not amounting to wanton 
 wrong, is the proximate cause of an 
 injury, it must appear that the injury 
 was the natural and probable conse- 
 quence of the negligence or wrongful 
 act, and that it ought to have been 
 foreseen in the light of the attending 
 circumstances We do not say 
 
§ 205 
 
 PROXIMATE CAUSE. 
 
 397 
 
 § 205. Contributory negligence a branch of this subject. — 
 The rule already referred to, that the contributory negli- 
 
 that even the natural and probable 
 consequences of a wrongful act or 
 omission are in all cases to be charge- 
 able to the misfeasance or nonfeas- 
 ance. They are not when there is 
 a sufficient and independent cause 
 operating between the wrong and the 
 injury. In such a case the resort of 
 the sufferer must be to the originator 
 of the intermediate cause. But when 
 there is no intermediate efficient 
 cause, the original wrong must be 
 considered as reaching to the effect, 
 and proximate to it. The inquiry 
 must, therefore, always be whether 
 there was any intermediate cause dis- 
 connected from the primary fault, and 
 self-operating, which produced the in- 
 jury. Here lies the difficulty. But 
 the inquiry must be answered in ac- 
 cordance with common understand- 
 ing. In a succession of dependent 
 events an interval may always be 
 seen by an acute mind between a 
 cause and its effect, though it may be 
 so imperceptible as to be overlooked 
 by a common mind. Thus, if a build- 
 ing be set on fire by negligence, and 
 an adjoining building be destroyed 
 without any negligence of the occu- 
 pants of the first, no one would doubt 
 that the destruction of the second was 
 due to the negligence that caused the 
 burning of the first. Yet in truth, in 
 a very legitimate sense, the immediate 
 cause of the burning of the second 
 was the burning of the first. The 
 same might be said of the burning of 
 the furniture in the first. Such re- 
 finements are too minute for rules of 
 social conduct. In the nature of 
 things, there is in every transaction a 
 succession of events, more or less de- 
 pendent upon those preceding, and it 
 is the province of a jury to look at 
 
 this succession of events or facts, and 
 ascertain whether they are naturally 
 and probably connected with each 
 other by a continuous sequence, or 
 are dissevered by new and independ- 
 ent agencies, and this must be de- 
 termined in view of the circumstances 
 existing at the time.'' 
 
 In Bowes v. Boston, 29 N. E. Rep. 
 633 (1892), Knowlton, J., says : " The 
 defendant contends that the jury 
 could not find that the grating of the 
 wheel upon the stone was the proxi- 
 mate and sole cause of the accident, 
 even if the horse was frightened by 
 it. There is certainly very little to 
 show that the sound was the cause 
 of the accident. On the plaintiff's 
 theory the horse was so frightened by 
 the first pile of stones as to pass out 
 of control of the plaintiff far enough 
 to bring the wheel in contact with a 
 stone in the other pile on the opposite 
 side of the street, and, after the sound 
 caused by the contact, the evidence 
 tended to show that for a consider- 
 able distance he was not running, 
 and that he afterwards began to run. 
 No accident occurred until he reached 
 March avenue, 428 feet from the pile 
 of stones. This avenue led to the 
 stable where he was kept, and he had 
 an inclination to turn into any street 
 leading directly to his stable when he 
 came near it, so that it was difficult 
 to restrain him from so doing. In 
 turning into March avenue the buggy 
 was upset. But on the whole evi- 
 dence, it was a question of fact for 
 the jury whether the increased speed 
 of the horse was caused by fright 
 from the sound ; and, if they found 
 that it was, they might also find that 
 the sound was the direct and proxi- 
 mate cause of the accident, even if 
 
398 PROXIMATE CAUSE. § 205 
 
 gence of the plaintiff will defeat his action for damages, 
 is a branch of the broader principle that the law traces 
 damage to its proximate cause, and puts responsibility 
 upon that cause. But as this department of the law of 
 negligence of municipal corporations is one of great im- 
 portance, and one in regard to which many cases have 
 arisen, it will be considered in another chapter. 
 
 there were concurring conditions, See Bunting v. Hogsett fPa.), 23 
 
 as distinguished from active causes, Am. St. Rep. 192, 12 L. R. A. 268 
 
 without which the accident would (1891) ; Willey v. Belfast, 61 Me. 569; 
 
 not have happened. We are of Stark v. Lancaster, 57 N. H. 88 ; 
 
 opinion that there was no error in Ward v. North Haven, 43 Conn. 148 
 
 submitting this question to the jury." (1875) ; infra, Chap. XXIV. 
 
CHAPTER XXII. 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 § 206. Theory of contributory negligence as a defense. 
 
 207. Examination of facts and circumstances. 
 
 208. No degrees of contributory negligence. 
 
 209. Frequency of defense by municipalities in highway cases. 
 
 210. Doctrine of identification overthrown. 
 
 211. Contradictory views in regard to imputing negligence of parents to 
 
 young children. 
 
 212. New York decisions. 
 
 213. Other States holding New York view. 
 
 214. Contrary view held in Vermont. 
 
 215. Recent consideration of question in New Jersey. 
 
 216. Recent decision in Illinois. 
 
 217. Tendency of law toward allowing action. 
 
 218. No action by negligent parent. 
 
 § 206. Theory of contributory negligence as a defense. — 
 The principle of right that limits responsibility for negli- 
 gence to the reasonable results that follow therefrom 
 underlies the rule that there is no liability when contribu- 
 tory negligence is shown. For if it appears that an 
 injury has been occasioned by the negligence of the per- 
 son who is charging a breach of the duty to exercise care 
 upon another, then this person is himself answerable for 
 the damage and he cannot recover compensation from 
 any one else. The damage is the reasonable result of the 
 contributory negligence and not of the original wrong- 
 doing. And it is important to observe that in all cases 
 it is necessary that this must be true, and that the con- 
 tributory negligence must be the proximate cause of the 
 injury, or it will be no defense. The damage must be 
 justly attributable to it to allow the original wrong-doer 
 
400 CONTRIBUTORY NEGLIGENCE. § 207 
 
 to escape from the final effect of his act. As is said by 
 an eminent authority, the person who is injured by the 
 negligence of another " is not to lose his remedy merely 
 because he has been negligent at some stage of the busi- 
 ness, though without that negligence the subsequent 
 events might not or could not have happened ; but only 
 if he has been negligent in the final stage and at the 
 decisive point of the event, so that the mischief, as and 
 when it happens, is proximately due to his own want of 
 care and not to the defendant's," ^ 
 
 § 207. Examination of facts and circumstances.— It is ob- 
 vious that much difficulty must be experienced in deter- 
 mining whether original negligence or subsequent con- 
 tributory negligence is the real cause of damage, and that 
 the new combinations of facts and circumstances con- 
 stantly arising clearly emphasize the words of Mr, Jus- 
 tice Strong in a case already referred to,* and show that 
 the question is one of common sense and not one of 
 technical law. And the only method by which a satis- 
 factory result can be reached is by a careful examination 
 of the particular facts of every case. The intricate mat- 
 ter of tracing the real cause of an injury becomes still 
 more complicated when this question of contributory 
 negligence arises ; and in some instances, as will be seen 
 subsequently,^ the cause of damage from one and the 
 same accident may be held to be the negligence of the 
 defendant when the rights of a third party intervene, and 
 the contributory negligence of the person who has been 
 negligent when he is suing in his own behalf. 
 
 In view of this fact, and in view also of the further fact 
 
 'Pollock on Torts, p. 375. See ton on Neg., § 300 ; Whittaker's Smith 
 
 generally : Shearman & Redfield on on Neg., p. 373 ; Am. & Eng. Encyc. 
 
 Neg., § 94 ; Beven on Neg., p. 128 et of Law, vol. 14, p. 15 «/ seq. 
 
 seq.\ Campbell on Neg., p. 180; Beach ' Supra, p. 396, n. 3. 
 
 on Cont. Neg., 2d ed., Chap. I.; Whar- ' Infra, §211. 
 
§207 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 401 
 
 that it is now thoroughly well settled that prior negli- 
 gence of a plaintiflF will be no excuse for the failure of 
 the defendant to exercise reasonable care in reference to 
 the situation presented to him,^ it is essential, in decid- 
 ing whether there has been contributory negligence, to. 
 examine all the circumstances and facts which surround 
 the happening of the injury, and to dispose of the ques- 
 tion with reference to the principle, is it reasonable, in 
 view of all circumstances and facts presented, to attribute 
 the damage to the want of care of the plaintiff? 
 
 ' This principle was first asserted in 
 the famous case of Da vies v. Mann, 10 
 M. & W. 546, 12 L. J. Ex. 10 (1842). 
 Here the prior negligence of the 
 plaintiff in tethering his donkey on 
 the higway created the situation in 
 reference to which the defendant was 
 required to exercise reasonable care ; 
 but as he failed to do so, he was made 
 responsible for the damage following 
 his neglect. This case is recognized 
 as a leading authority in England as 
 well as in this country, and the prin- 
 ciple estabHshed by it is well settled. 
 See Pollock on Torts, p. 378 ; Shear- 
 man and Redfield on Neg., 4th ed., 
 § 99 et seq., citing many authorities. 
 See for criticism of the case. Beach 
 on Cont. Neg., 2d ed., § 27 et seq. ; 
 Thompson on Neg., p. 1155. 
 
 In Inland & Seaboard Coasting 
 Co. V. Tolson, 139 U. S. 551 (1891), 
 Mr. Justice Gray says : " The other 
 instruction was in these words : 
 ' There is another qualification of this 
 rule of negligence, which it is proper 
 I should mention. Although the rule 
 is that, even if the defendant be 
 shown to have been guilty of negli- 
 gence, the plaintiff cannot recover if 
 he himself be shown to have been 
 guilty of contributory negligence 
 which may have had something to do 
 26 
 
 in causing the accident ; yet the con- 
 tributory negligence on his part 
 would not exonerate the defendant, 
 and disentitle the plaintiff from re- 
 covering, if it be shown that the de- 
 fendant might, by the exercise of rea- 
 sonable care and prudence, have 
 avoided the consequences of the plain- 
 tiff's negligence.' 
 
 "The qualification of the general 
 rule, as thus stated, is supported by 
 decisions of high authority, and 
 was applicable to the case on trial. 
 Radley v. London & Northwestern 
 Railway, i App. Cas. 754 ; Scott v. 
 Dublin & Wicklow Railway, 1 1 Irish 
 Com. Law 377 ; Austin v. New Jer- 
 sey Steamboat Co., 43 N. Y. 75, 82 ; 
 Lucas V. Taunton & New Bedford 
 Railroad, 6 Gray 64, 72 ; Northern 
 Central Railway v. Price, 29 Mary- 
 land 420. See also Williamson v. 
 Barrett, 13 How. loi, 109." See 
 Pierce v. Cunard S.S. Co. (Mass.), 26 
 N. E. Rep. 415. 
 
 In Radley v. Liverpool, etc. R. Co., 
 L. R. I App. Cas. 754 (1876), Lord 
 Penzance said : " Though the plaintiff 
 may have been guilty of negligende, 
 and although that negligence may in 
 fact have contributed to the accident, 
 yet if the defendant could in the re- 
 sult, by the exercise of ordinary care. 
 
402 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 208 
 
 § 208. No degrees of contributory negligence.— The law 
 does not sanction any discrimination in degrees of con- 
 tributory negligence. If there is any breach of the 
 duty to exercise care on the part of the person who 
 has received the damage, and the damage is the proxi- 
 mate cause of this breach, there can be no recovery.* 
 And whether this is so, is for the jury to say upon a con- 
 sideration of all the facts and circumstances of the case, 
 if these facts and circumstances are capable of more than 
 one reasonable inference.^ In a recent case in Pennsyl- 
 vania,^ where the court charged the jury as follows, " It 
 
 and diligence, have avoided the mis- 
 chief which happened, the plaintiff's 
 negligence will not excuse him." 
 
 ^ Supra, n. i, p. 400. See Smith- 
 wick V. Hall & Upson Co., 59 Conn. 
 261 (1890), 12 L. R. A. 279, note. 
 
 Beach on Cont. Neg., 2d ed., §20 
 et seq. 
 
 In Bloor v. Delafield, 69 Wis. 273 
 (1887), Lyon, J., says: "The court 
 refused to instruct the jury, as re- 
 quested by the defendant, that if the 
 plaintiff was guilty of slight negli- 
 gence, which contributed to the in- 
 juries of which he complains, he could 
 not recover. Such is not the law. A 
 slight want of ordinary care on the 
 part of the plaintiff, contributing 
 proximately to cause the injury, will 
 defeat the action, while only slight 
 contributory negligence on his 
 part will not. Counsel for the de- 
 fendant rely on some language of Mr. 
 Justice Downer in Potter v. C. & N. 
 W. R.Co., 21 Wis. 372, which was re- 
 peated in Cunningham v. Lyness, 22 
 Wis. 245, as sustaining the proposed 
 instruction. The language there em- 
 ployed certainly gives color to the po- 
 sition of counsel, but it was pro- 
 nounced inaccurate and corrected by 
 the present chief-justice in Ward v. 
 
 M. & St. P. R. Co., 29 Wis. 144, 
 where the true rule is stated as above. 
 This court has constantly adhered to 
 the rule as thus laid down." 
 
 •^ Infra, % 228. 
 
 ^ Mattimore v. Erie (Pa.), 22 Atl. 
 Rep. 817 (1891). In this case. Green, 
 J., after quoting the charge given, 
 says : " This is in direct conflict with 
 at least two of our recent cases. Mo- 
 nongahela City v. Fischer, 1 1 1 Pa. St. 
 9, 2 Atl. Rep, 87 ; Supply Co. v. 
 Boundy, 122 Pa. St. 449, 15 Atl. Rep. 
 865. In both of these it was held 
 that any limitation upon the effect of 
 any degree of contributory negligence 
 of the plaintiff, as defeating his right 
 of recovery, was vicious, and could 
 not be tolerated. In the first of them 
 the present chief-justice said : ' But 
 if we substitute the word "material" 
 for the word "any," we practically 
 abolish the rule, for a jury can always 
 find a way to avoid it. The rule it- 
 self is valuable and rests upon sound 
 principles. We are not disposed to 
 allow it to be undermined.' It is con- 
 tended, however, that the law was 
 correctly stated in the subsequent 
 part of the charge, and therefore the 
 jury was not misled, or may not have 
 been misled, by the erroneous instruc- 
 
§ 208 CONTRIBUTORY NEGLIGENCE. 403 
 
 is a principle of law that, although the defendant in an 
 action of this kind may have been guilty of negligence, 
 yet if the plaintiff himself was guilty or any negligence 
 which materially contributed to the happening of the in- 
 jury, then he cannot recover, no matter how negligent 
 the defendant may have been," it was held upon appeal 
 that the charge was erroneous because of the qualifying 
 word " materially." 
 
 So the doctrine of " comparative negligence " has no 
 place in the common law.^ And there would seem to be 
 no occasion for such a doctrine while the rule is observed 
 that the negligence to be punished must be the proximate 
 cause of the injury. For this negligence is the greater 
 negligence by comparison, it being the real cause of the 
 damage that is received. Moreover, the principle that 
 the damage must be traced to its efficient cause, gives 
 better opportunity for an equitable placing of the pun- 
 ishment than any weighing of the amount of negligence 
 on each side could possibly do, for in the former case the 
 
 tion. Upon examining the charge, materially contribute to the injury, 
 however, we find that the only por- and therefore they could render a ver- 
 tion of it in which the legal principle diet in his favor. There was evidence 
 is stated is the part above quoted, and that the wheel was very insecurely 
 there the error distinctly appears in placed in its position, and tilted over 
 the statement of the principle itself upon the least touching of it, and the 
 and as a part of it. There is no jury may have very naturally thought 
 qualification of it anywhere else in the its insecure position was more mate- 
 charge. What follows is merely by rial in producing its fall than the 
 way of illustration, as applied to the boy's playing with it. It is this very 
 facts of the present case. The learned opportunity to misapply the law, if 
 judge did tell the jury that if they degrees of contributory negligence 
 found that the boy was playing with are tolerated, which requires from 
 the wheel, and attempting to move it, the court a rigid adherence to the 
 and thereby caused it to fall, he would rule which forbids a recovery by a 
 be guilty of contributory negligence, plaintiff in an action for negligence, 
 and could not recover. But, under who has contributed in any degree to 
 the charge as it then stood, it would his own injury." 
 be quite possible for the jury to find ■ See for authorities : Shearman & 
 that, although the boy was playing Redfield on Neg., 4th ed., § 102 ; 
 with the wheel, his action did not Beach on Cont. Neg., § 72 et seq. ; 
 
404 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 209 
 
 process is along lines of principle, while in the latter there 
 is no restraint upon the findings of the jury.^ 
 
 § 209. Frequency of defense by municipalities. — It is a 
 frequent defense in actions against municipal corporations 
 for negligence in respect to their highways, that the plain- 
 tiff or the person in whose behalf he sues, was guilty of 
 negligence which has proximately contributed to the 
 injury received. And wherever the defense can be estab- 
 lished the action against these corporations will be 
 defeated, the law making no discrimination between the 
 liabilities of individuals and municipal corporations in 
 this respect. From the prevalence of claims against mu- 
 nicipalities arising from accidents on highways, it seems 
 advisable to briefly consider two important questions 
 
 Am. & Eng. Encyc. of Law, vol. 16, 
 p. 447 ; Railway Company v. Hull, 
 88 Tenn. 33 (1889). 
 
 ' The following extract from the 
 Albany Law Journal is of interest 
 upon this subject, — see 44 Alb. L. J. 
 262 (1891): "The American Law 
 Review has the following remarks 
 about Judge Sidney Breese : 
 
 " ' He enjoys the distinction of hav- 
 ing invented the celebrated doctrine 
 of " comparative negligence " peculiar 
 to the Supreme Court of Illinois, and 
 about which the court has wobbled a 
 great deal, until finally it has put it 
 aside entirely, as we understand the 
 result of its latest decisions. That 
 doctrine as formulated by Judge 
 Breese was : " Whenever it shall ap- 
 pear that the plaintiff's negligence is 
 comparatively slight, and that of the 
 defendant gross, he shall not be de- 
 prived of his action." This is dis- 
 tinctly opposed to the famous dictum 
 that " the law has no scales to deter- 
 mine, in such cases, whose wrong- 
 doing weighed most in the compound 
 that occasioned the mischief." Al- 
 
 though the doctrine of the Supreme 
 Court of Illinois has not been gener- 
 ally adopted in American jurisdic- 
 tions. Judge Breese was right and 
 other judges wrong. The law has 
 the best pair of scales in the judgment 
 of twelve average men drawn from 
 the community, and if those twelve 
 men are left to themselves without 
 being trammelled by legal technicali- 
 ties, they will, in almost every case, 
 mitigate the damages awarded to the 
 plaintiff in proportion to his fault. The 
 obtuse injustice of the prevaihng rule 
 is that, although both parties are at, 
 fault, one party must suffer all the, 
 loss. The well-known admiralty rule 
 of dividing the damages in such cases 
 rests on a much higher plane of con- 
 science and equity.' 
 
 . . . . " We entirely agree with 
 the Review on the point of compara- 
 tive negligence. It is an equitable 
 doctrine, and the ordinary rule is es- 
 pecially hard where the defendant's 
 negligence has induced that of the 
 plaintiff, as is very often the fact." 
 
§ 2IO CONTRIBUTORY NEGLIGENCE. 405 
 
 relating to the general subject of contributory negligence. 
 Both of these questions have occasioned nauch discussion, 
 and although one is now settled, the other remains a dis- 
 puted point in the law, — the first being, is a person who is 
 driving with another, so identified with him that he is 
 chargeable with his negligence although exercising no 
 control over him ? and secondly, is the negligence of a 
 parent or protector who has the custody of a child too 
 young to be held accountable for personal negligence to 
 be imputed to the child ? 
 
 § 210. Doctrine of identification overthrown. — It is an 
 interesting study to trace the advancement of a principle 
 of justice against some old authority of repute. And it 
 is a significant fact that with the growth and development 
 of independent courts of ability and force a decision upon 
 a question of general law in any one locality will only be 
 of strength elsewhere in so far as it announces a rule that 
 will commend itself for its reasonableness and justice. 
 The decision in the case of Thorogood v. Bryan,^ that 
 one who chanced to be driving with another was pre- 
 vented by the contributory negligence of the driver 
 from recovering for damage done him, although many 
 times cited with approval and generally regarded as a 
 leading principle in the law of negligence,* has been con- 
 tinually controverted by able courts in this country, and 
 its authority as a correct principle of law has been recently 
 denied by the United States Supreme Court.^ The 
 case was also criticised in England at an early date,* and 
 
 ' 8 C. B. 115. (1885), reviewing the authorities fully. 
 
 ' See Shearman & Redfield, § 66, See reference to this decision in the 
 
 where many authorities are cited, opinion of Lord Herschell, infra, p. 
 
 See also Beach, Cont. Neg., § 108 e/ 406, n. i. 
 
 seq. ' See note I, p. 406. 
 
 » Little V. Hackett, 116 U. S. 366 
 
4o6 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 § 2IO 
 
 in 1888 it was wholly repudiated by the House of Lords.' 
 The effect of the decision was so far-reaching, however, 
 that it is still recognized as an authority by a few of our 
 
 ' The Bernina, L. R. 13 App. Cas. i 
 (1888), Lord Herschell referring to the 
 judges who decided Thorogood v. 
 Bryan, says : " With the utmost 
 respect for these eminent judges, I 
 must say that I am unable to compre- 
 hend this doctrine of identification 
 upon which they lay so much stress. 
 In what sense is the passenger by a 
 public stage-coach, because he avails 
 himself of the accommodation afforded 
 by it, identified with the driver ? The 
 learned judges manifestly do not mean 
 to suggest (though some of the lan- 
 guage used would seem to bear that 
 construction) that the passenger is so 
 far identified with the driver that the 
 negligence of the latter would render 
 the former liable to third persons in- 
 jured by it. I presume that they did 
 not even mean that the identification 
 is so complete as to prevent the pas- 
 ■ senger from recovering against the 
 driver's master ; though if ' negli- 
 gence' of the owner's servants is to be 
 considered negligence of the passen- 
 ger,' or if he ' must be considered a 
 party' to their negligence, it is not 
 easy to see why it should not be a bar 
 to such an action. In short, as far as 
 I can see, the identification appears 
 to be effective only to the extent of 
 enabling another person whose ser- 
 vants have been guilty of negligence 
 to defend himself by the allegation of 
 contributory negligence on the part of 
 the person injured. But the very 
 question that had to be determined 
 was, whether the contributory negli- 
 gence of the driver of the vehicle was 
 a defense as against the passenger 
 when suing another wrong-doer. To 
 say that it is a defense because the 
 
 passenger is identified with the driver, 
 appears to me to beg the question, 
 when it is not suggested that this 
 identification results from any recog- 
 nized principles of law, or has any 
 other effect than to furnish that de- 
 fense, the validity of which was the 
 very point in issue. Two persons may, 
 no doubt, be so bound together by 
 the legal relation in which they stand 
 to each other, that the acts of one may 
 be regarded by the law as the acts of 
 the other. But the relation between 
 the passenger in a public vehicle, and 
 the driver of it, certainly is not such 
 as to fall within any of the recognized 
 categories in which the act of one man 
 is treated in law as the act of another. 
 . ..." I have said that the decision 
 in Thorogood v. Bryan, 8 C. B. 115, 
 has not been unquestioned. I do not 
 think it necessary to enter upon a 
 minute consideration of the subse- 
 quent cases, after the careful and ac- 
 curate examination to which they have 
 been subjected by the Master of the 
 Rolls. The result may be summarized 
 thus : The learned editors of Smith's 
 Leading Cases, Willes and Keating, 
 JJ., strongly questioned the propriety 
 of the decision. See notes to Ashby 
 V. White, Park, B., whose dictum in 
 Bridge v. Grand Junction Railway 
 Company, 3 M. & W. 244, William, 
 J., followed in directing the jury in 
 Thorogood v. Bryan, 8 C. B. 115, ap- 
 pears to have doubted the soundness 
 of the judgment in that case. Dr. 
 Lushington, in The Milan, Lush. 388, 
 expressed strong disapproval of it ; 
 and though in Armstrong v. Lanca- 
 shire and Yorkshire Railway Com- 
 pany, Law Rep. 10 Ex. 47, it was fol- 
 
§ 
 
 2IO 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 407 
 
 State courts.^ The prevalent and more reasonable rule 
 on this subject now is that a passenger in a public con- 
 veyance or a person driving by invitation with another, 
 will have his right of action against a municipality for 
 an injury occasioned him by the combined negligence of 
 the corporation and the driver. In these cases, there- 
 fore, the driver himself is precluded from recovery on 
 account of his own negligence, which as to him is the 
 proximate cause of the injury, but which does not con- 
 cern his companion, who can recover for the injury 
 done him, on the ground that there are two proxi- 
 mate causes, so far as he is concerned, and that he can 
 hold either person responsible. This is another proof 
 that it is the aim of the law to attribute to every 
 cause, such damage as may be reasonably charged to its 
 account, and not to enter into a theoretical discussion 
 concerning causation. 
 
 lowed, and Bramwell and Pollock, 
 BB., to say the least, did not indicate 
 dissatisfaction with it, I understand 
 that my noble and learned friend. 
 Lord Bramwell, after hearing this case 
 argued, and maturely considering it, 
 agrees with the judgment of the court 
 below. In Scotland the decision in 
 Thorogood v. Bryan, 8 C. B. 1 1 5, was 
 pronounced unsatisfactory, in Adams 
 V. Glasgow and South Western Rail- 
 way Company, 3 Court Sess. Cas. 4th 
 Sen 215. In America it has been 
 followed in the courts of some States, 
 but it has often been departed from, 
 and upon the whole, the view taken 
 has been decidedly adverse to it. The 
 latest case that I am aware of in that 
 country is Little v. Hackett, 9 Davis, 
 Supr. Ct. U. S. 366. That was a de- 
 cision of the Supreme Court of the 
 United States, whose decisions on 
 account of its high character for learn- 
 ing and ability, are always to be re- 
 garded with respect. Field, J., in 
 
 delivering judgment, examined all the 
 English and American cases, and the 
 conclusion adopted was the same as 
 that at which your Lordships have 
 arrived." See Mathews v. London 
 Street Tr. Co., 58 L. T. 12. 
 
 > Shearman & Redfield, § 66. See 
 Otis v. Janesville, 47 Wis. 422 ; Staf- 
 ford V. Oskaloosa, 57 la. 748, where 
 the rule is recognized in actions against 
 municipal corporations. See also in 
 opposition to the rule. Seaman v. 
 Koehler, 122 N. Y. 646; Bunting 
 V. Hogsett, 139 Pa. 363, 12 L. R. A. 
 268, 21 Atl. Rep. 31 ; McCaffrey v. 
 Delaware, etc. Canal Co., 41 N. Y. St. 
 Rep. 221 (1891) ; Bennett v. New 
 York, etc. Railroad Co., 40 N. Y. St. 
 Rep. 948, 16 N. Y. Supp. 76s (1891) ; 
 Railroad Co. v. Eadie,43 Ohio St. 91; 
 Beck V. Railroad Co. (Mo.), 13 S. W. 
 Rep. 1053, 9 L. R. A. 157, note ; Ben- 
 nett V. N. J. Trans. Co., 36 N. J. L. 
 225, 13 Am. Rep. 435. 
 
4o8 CONTRIBUTORY NEGLIGENCE. § 211 
 
 § 211. Contradictory views in regard to imputing negli- 
 gence of parents to young children.— A question often dis- 
 cussed in connection with the subject of identification, 
 but one which involves the consideration of a new ques- 
 tion, is that relating to the responsibility of persons and 
 corporations for negligence affecting young children 
 when their parents or guardians are guilty of contributory 
 negligence. The Supreme Court of New York first 
 established the rule that the negligence of a parent or 
 guardian would be imputed to a young child, and would 
 defeat recovery for an injury occasioned by the combined 
 negligence of a third person and his protector. 
 
 And in the case^ where the principle was announced 
 the court said : " It is perfectly well settled that if a party 
 injured by a collision on the highway has drawn the mis- 
 chief 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 top- 
 pling infant suffered by his guardians to be there, either 
 as a traveler or for the purpose of pursuing his sports. 
 The application may be harsh when made to small chil- 
 dren. As they are known to have no personal discretion, 
 common humanity is alive to their protection ; but they 
 are not therefore exempt from the legal rule when they 
 bring an action for redress ; and there is no other way of 
 enforcing it except by requiring due care at the hands of 
 those to whom the law and the necessity of the case have 
 delegated the exercise of discretion. An infant is not sui 
 juris. He belongs to another to whom discretion in the 
 care of his person is exclusively 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 
 
 1 Hartfield v. Roper, 2i Wend. 615, 34 Am. Rep. 273 (1839). 
 
§212 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 409 
 
 and guardian has suffered him to incur nnischief, it is 
 much more fit that he should look for redress to that 
 guardian, than that the latter should negligently allow his 
 ward to be in the way of travelers, and then harass them 
 in courts of justice, recovering heavy verdicts for his own 
 misconduct." 
 
 § 212. Recent New York decisions. — This doctrine has 
 been constantly adhered to in New York, although in the 
 recent cases where the question has come before the Court 
 of Appeals the court has refused to attribute negligence 
 to a parent for slight inattention,^ or for permitting a child 
 
 ' In Weil V. Dry Dock, etc. Railroad 
 Co., 119 N. Y. 147 (1890), O'Brien, J., 
 says: "The plaintift's parents were 
 bound to protect her from danger so 
 far as that could be done by the exer- 
 cise of reasonable prudence and care. 
 The law did not require the father to 
 suspend his business and keep the 
 child every moment under his eye. 
 He was required only to exercise such 
 a degree of care as was reasonable in 
 his situation and under all the circum- 
 stances of the case. Whether in this 
 case the father did, in fact, all that a 
 reasonably careful and prudent man 
 ought to have done under the circum- 
 stances, was a question for the jury 
 and not for the court." 
 
 In Kunz v. Troy, 104 N. Y. 344 
 (1887), Andrews, J., says : " The re- 
 maining question relates to the al- 
 leged negligence of the plaintiff's in- 
 testate. The intestate was a child 
 between five and six years of age. 
 We understand the rule to be that 
 in an action for an injury founded 
 on negligence, contributory per- 
 sonal negligence cannot be attrib- 
 uted to a child of very tender years, 
 who from his age cannot be supposed 
 capable of exercising judgment or dis- 
 cretion, although the injury would not 
 
 have happened without his concurring 
 act, and although that act if com- 
 mitted by an adult would be a negli- 
 gent one. In such a case a defend- 
 ant whose negligence was a constitu- 
 ent element of the transaction, and 
 without which the injury would not 
 have happened, is legally responsible, 
 notwithstanding the negligence of the 
 infant, unless it appears that the par- 
 ents or guardians were negligent in 
 permitting the child to be brought 
 into the situation which subjected it 
 to the hazard and resulting injury. 
 There is an obligation in general 
 upon all persons to conduct them- 
 selves with prudence and care, and 
 not recklessly, or even incautiously 
 expose themselves to danger, even 
 from the negligent acts of others. 
 But the law exacts no impossibility. 
 It does not require an infant before 
 reaching the age of discretion to ex- 
 ercise discretion. But it imposes 
 upon parents and guardians the duty 
 of using reasonable care to protect 
 those incapable of protecting them- 
 selves, and if they fail to exercise 
 such care, and the infant is thereby 
 brought into danger and suffers in- 
 jury from the negligent act of an- 
 other, their negligence is deemed the 
 
410 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 § 212 
 
 four and a half years of age to play on the street.^ The 
 reasons upon which the doctrine is based are not set forth 
 in these cases, and it has been said that the question of 
 its soundness has not been fully argued in the Court of 
 Appeals.^ 
 
 negligence of the infant. In Hartfield 
 v.Roper,2i Wend.6i5,it was held as 
 matter of fact that there was no neg- 
 ligence on the part of the defendant, 
 and that there was negligence on the 
 part of the parents in permitting a- 
 child of two and a half years of age 
 to be in the roadway. The new trial 
 in that case was properly granted on 
 either ground. There are some re- 
 marks in the opinion which, discon- 
 nected with the context, may be con- 
 strued as sustaining the proposition 
 that although there was no negligence 
 on the part of the parents, the plain- 
 tiff could not maintain the action if 
 the conduct of the child contributed 
 to the injur)'. But we understand the 
 present doctrine on this question to 
 be that it is not sufficient to defeat a 
 recovery for an injury to a child, not 
 sui juris, caused by the negligence of 
 a defendant, that the act of the child 
 was one which in an adult would be 
 deemed a negligent one contributing 
 to the injury. There must also be 
 concurring negligence on the part of 
 the parents or guardians. Ihl v. 
 Forty-second St. R.R. Co., 47 N. Y. 
 317 ; McGarry v. Loomis, 63 Id. 104. 
 In the absence of negligence on the 
 part of the parents or guardians, the 
 doctrine of contributory negligence 
 has, in such a case, no application. 
 The law does not define when a 
 child becomes sui juris. If there 
 was any question whether the plain- 
 
 tiff's intestate had sufficient discre- 
 tion to understand the danger of the 
 situation, it should have been left to 
 the jury, with proper instructions as 
 to the degree of care exacted of a 
 child of tender years, under the cir- 
 cumstances. Mangam v. Brooklyn 
 R.R. Co., 38 N. Y. 455 ; McGovern 
 V. N. Y. C. & H. R.R. Co., 67 Id. 418 ; 
 Byrne v. Same, 83 Id. 620 ; Dowling 
 V. Same, 90 Id. 670; R.R. Co. v. 
 Stout, 17 Wall. 657. It is insisted, 
 however, that the father of the intes- 
 tate was chargeable with negligence 
 in permitting the child to be on the 
 sidewalk unattended. It has been 
 held that it is not per se wrongful or 
 negligent to permit children to play 
 in the street. McGarry v. Loomis, 
 supra ; McGuire v. Spence, 91 N. Y. 
 303. It may, or may not, be negli- 
 gence, depending upon circumstances. 
 It was, we think, for the jury to de- 
 termine whether the father of the in- 
 testate was gfuilty of negligence. The 
 plaintiff is entitled to the most favor- 
 able inferences deducible from the ev- 
 idence, and in reviewing the nonsuit 
 all contested questions of fact are to 
 be deemed established in his favor. 
 The jury would have been entitled to 
 have found from the evidence that 
 the father left the child at the door of 
 the store to go into the store to make 
 change, cautioning the boy not to go 
 far away, and on his return, from two 
 to five minutes later, the accident had 
 
 ' Birkett v. Knickerbocker Ice Co., 
 no N. Y. 504 (1888), Earl, J., says : 
 
 " The plaintiff claims that the intes- 
 tate came to her death from the care- 
 
 ' Shearman and Redfield on Neg., 4th ed., § 75. 
 
§213 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 411 
 
 § 213. Other States holding New York view. — In Massa- 
 chusetts^ the same rule is applied, and if a parent 
 
 happened. It would be, we think, 
 too strict a rule to impute negligence 
 to the father as matter of law, under 
 
 such circumstances. See Cosgrove 
 V. Ogden, 49 N. Y. 255." 
 
 lessness of the defendant, and he has 
 brought this action to recover ' com- 
 pensation for the pecuniary injuries ' 
 resulting from the death to her next 
 of kin. The intestate was plamtiff's 
 daughter, and at the time of her death 
 was four and one-half years old. 
 The horses attached to one of de- 
 fendant's ice wagons were driven 
 against her at a street crossing where 
 Franklin and Java streets, in. the city 
 of Brooklyn, intersect, and she was 
 thus fatally injured. If the intestate 
 had been an adult, we think the evi- 
 dence would have justified the claim 
 of the defendant that her own negli- 
 gence contributed to the injury. But 
 she was non sui juris, and per- 
 sonal negligence could not be imputed 
 to her. It is, however, contended 
 that she was so young that her par- 
 ents were guilty of negligence in per- 
 mitting her to go into the streets un- 
 attended. The intestate resided with 
 her parents in a thickly populated 
 neighborhood, and there was no in- 
 closed space around the house for 
 children to play, and plaintiff's chil- 
 dren were permitted to play upon the 
 sidewalk near his house. On the 20th 
 day of August, 1884, about four 
 o'clock P.M., the intestate left the 
 house with her brother, about six 
 years old, to play upon the sidewalk 
 with other children. She had per- 
 mission only to play upon the side- 
 walk, and was never allowed to cross 
 the street. She was a healthy, sharp, 
 bright, intelligent child. She had been 
 out but a short time when her brother 
 
 left her, and while she was attempt- 
 ing to cross the street she received 
 the fatal injuries. It was not unlaw- 
 ful for the child to be in the street, 
 nor even for her to play upon the 
 sidewalk. It caimot be said that it 
 was, as matter of law, under the cir- 
 cumstances proved, negligence for the 
 parents to permit her to go on to the 
 sidewalk to play ; and whether it was 
 or not, was a question for the deter- 
 mination of the jury. Oldfield v. N. 
 Y. & Harlem R.R. Co., 14 N. Y. 310; 
 Ihl V. Forty-second Street, etc. R.R. 
 Co., 47 Id. 317 ; McGarry v. Loomis, 
 63 Id. 104. Hundreds of young 
 children are permitted, with general 
 safety, and must be permitted in cities 
 to amuse themselves upon the side- 
 walks, and they cannot always be at- 
 tended by persons of discretion. The 
 highest prudence would doubtless re- 
 quire that they should be so guarded ; 
 but it cannot be said, as matter of 
 law, that ordinary prudence forbids 
 that a bright child four and one-half 
 years old, properly instructed and 
 cautioned, should go unattended onto 
 a sidewalk for diversion." 
 
 See Williams v. Gardiner (N. Y.), 
 58 Hun 508, 35 N. Y. St. Rep. 796, 12 
 N. Y. Supp. 612 (1890); Abbott's 
 Trial Evidence, p. 597. 
 
 I In Casey v. Smith, 152 Mass. 294, 
 23 Am. St. 842, 26 N. E. Rep. 430 
 (1890), Knowlton, J., says: "The 
 plaintiff at the time of the accident 
 was three years and nineteen days 
 old. He was run over on a public 
 street in a crowded part of the city 
 
412 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 § 214 
 
 neglects his duty to exercise care for tlie safety of his 
 child, and the child receives an injury through the 
 negligence of a third person, no recovery can be had. 
 The parent is only bound to exercise reasonable care in 
 view of the circumstances,^ but this is not a different 
 duty from that which rests upon him for his own pro- 
 tection. This doctrine is also held in Maine,^ Mary- 
 land,^ Indiana,* Minnesota,^ Kansas,* California,^ and 
 partially in Alabama.^ 
 
 § 214. Contrary view held in Vermont. — The Supreme 
 Court of Vermont, at an early day, announced the con- 
 trary doctrine, however, and refused to hold that a child 
 who was injured on a highway was prevented from re- 
 covering from the wrong-doer by the negligence of his 
 parent in permitting him to be there ; ^ and the case in 
 
 of Boston, and the jury have found 
 in substance that the accident was 
 caused, wholly or in part, by his fail- 
 ure to exercise such care as an adult 
 person of ordinary prudence would 
 have exercised under like circum- 
 stances. That fact would not prevent 
 his recovery if he was of such age 
 and intelligence that he could prop- 
 erly be alone on the street, and if he 
 used the ordinary care of boys of his 
 age ; but if he was too young to take 
 care of himself, and was negligently 
 permitted to be on the street, and if 
 he was hurt, when an adult in his 
 place would not have been, the neg- 
 ligence whereby he came there would 
 be held to have contributed to the 
 accident. In such a case, his pres- 
 ence there would be a cause, and not 
 merely a condition, of the accident. 
 If a child is too young to be capable 
 of caring for himself, it is the duty of 
 his proper custodian to care for him, 
 and in a suit to recover for an injury 
 caused by the negligence of another. 
 
 if his custodian was guilty of negli- 
 gence, that negligence is imputed to 
 him. Lynch v. Smith, 104 Mass. 52, 
 57; Gibbons v. Williams, 135 Mass. 
 333- 335 ; Collins v. South Boston 
 Railroad, 142 Mass. 301, 314." 
 
 ' Slattery v. O'Connell (Mass.), 26 
 N. E. Rep. 430, 10 L. R. A. 653, note, 
 
 " Leslie v. Lewiston, 62 Me. 468. 
 
 'Baltimore, etc. R. Co. v. McDon- 
 nell, 43 Md. 534 (1875). 
 
 " Evansville, etc. R. Co. v. Wolf, 
 59 Ind. 89. See Indianapolis v. Em- 
 melman, 108 Ind. 530 (1886). 
 
 'Fitzgerald v. St. Paul, 29 Minn. 
 336 (1882). 
 
 « Atchison, etc. R. Co. v. Smith, 28 
 Kas. 541. 
 
 ■■ Meeks v. Southern Pac. R. Co., 
 
 52 Cal. 602, 56 Id. 513. 
 
 8 Pratt, etc. Co. v. Brawley, 83 Ala. 
 371, 3 Am. St. Rep. 751, note (1888). 
 See Government St. R. Co. v. Hanlon, 
 
 53 Ala. 70. 
 
 ' Robinson v. Cone, 22 Vt. 213. 
 
§215 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 413 
 
 which this rule was held has been widely cited upon this 
 question. In the opinion of the court in this case it was 
 said : "And we are satisfied that although a child, or idiot, 
 or lunatic may, to some extent, have escaped into the 
 highway through the fault or negligence of his keeper, 
 and so be improperly there, yet if he is hurt by the neg- 
 ligence of the defendant, he is not precluded from his 
 redress. If one knows that such a person is in the high- 
 way or on a railway, he is bound to a proportionate 
 degree of watchfulness, and what would be but ordinary 
 neglect in regard to one whom the defendant supposed 
 a person of full age and capacity, would be gross neglect 
 as to a child or one known to be incapable of escaping 
 danger." 
 
 § 215. Recent consideration of question in New Jersey. — 
 In a recent New Jersey case^ the reasons why this 
 
 ' Newman v. Phillipsburg Horse 
 Car R.R. Co., 52 N. J. L. 446, 19 
 Atl. Rep. 1 107 (1890). The infant in 
 this case was a child two years of age, 
 who was in the custody of her sister, 
 twenty-two years of age. The child 
 being left alone for a few moments 
 got upon the railroad track of the 
 defendant and was injured by the 
 carelessness of the driver of a car. 
 Beasley, Chief-Justice, delivered the 
 opinion of the court and said : " There 
 is but a single question presented by 
 this case, and that question plainly 
 stands among the vexed questions of 
 the law. 
 
 " The problem is, whether an infant 
 of tender years can be vicariously 
 negligent, so as to deprive itself of a 
 remedy that it would otherwise be 
 entitled to. In some of the Ameri- 
 can States this question has been 
 answered by the courts in the affirma- 
 tive, and in others in the negative. 
 To the former of these classes be- 
 
 longs the decision in Hatfield v. Re- 
 fer & Newell, reported in 21 Wend. 
 615. This case appears to have been 
 one of first impression on this subject, 
 and it is to be regarded not only as 
 the precursor, but as the parent of all 
 the cases of the same strain that have 
 since appeared. 
 
 " The inquiry with respect to the 
 effect of the negligence of the custo- 
 dian of the infant, too young to be 
 intelligent of situations and circum- 
 stances, was directly presented for 
 decision in the primarj' case thus re- 
 ferred to, for the facts were these, 
 viz.: The plaintiff, a child of about 
 two years of age, was standing or 
 sitting in the snow in a public road, 
 and in that situation was run over by 
 a sleigh driven by the defendants. 
 The opinion of the court was, that 
 as the child was permitted by its cus- 
 todian to wander into a position of 
 such danger it was without remedy 
 for the hurts thus received, unless 
 
414 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 215 
 
 should be the general rule have been given with 
 such clearness that it is believed that no better contri- 
 bution to the discussion upon this question can be here 
 made than to reproduce the opinion in this case. This 
 decision by an influential court, coming as it does after 
 a prolonged discussion of the point in many localities, is 
 entitled to special weight upon the question. 
 
 they were voluntarily inflicted, or 
 were the product of gross careless- 
 ness on the part of the defendants. 
 It is obvious that the judicial theory 
 was, that the infant was, through the 
 medium of its custodian, the doer, in 
 part, of its own misfortune, and that, 
 consequently, by force of the well- 
 known rule, under such conditions, 
 he had no right to an action. This, 
 of course, was visiting the child for 
 the neglect of the custodian, and such 
 infliction is justified in the case cited 
 in this wise: 'The infant,' says the 
 court, ' is not sui juris. He belongs 
 to another, to whom discretion in the 
 care of his person is exclusively con- 
 fided. That person is keeper and 
 agent for this purpose ; in respect to 
 third persons his act must be deemed 
 that of the infant; his neglects the 
 infant's neglects.' 
 
 " It will be observed that the entire 
 content of this quotation is the state- 
 ment of a single fact, and a deduction 
 from it, the premise being that the 
 child must be in the care and charge 
 of an adult, and the inference being 
 that, for that reason, the neglects of 
 the adult are the neglects of the infant. 
 But surely this is conspicuously a non 
 sequztur. How does the custody of 
 the infant justify, or lead to, the im- 
 putation of another's fault to him ? 
 The law, natural and civil, puts the 
 infant under the care of the adult, 
 but how can this right to care for and 
 protect be construed into a right to 
 
 waive, or forfeit, any of the legal 
 rights of the infant.' The capacity 
 to make such waiver or forfeiture is 
 not a necessary, or even convenient, 
 incident of this office of the adult, 
 but, on the contrary, is quite incon- 
 sistent with it, for the power to pro- 
 tect is the opposite of the power to 
 harm, either by act or omission. In 
 this case in Wendell it is evident that 
 the rule of law enunciated by it is 
 founded in the theory that the custo- 
 dian of the infant is the agent of the 
 infant ; but this is a mere assumption 
 without legal basis, for such custodian 
 is the agent, not of the infant, but of 
 the law. If such supposed agency ex- 
 isted, it would embrace many interests 
 of the infant, and could not be con- 
 fined to the single instance where an 
 injury is inflicted by the co-operative 
 tort of the guardian. And yet it 
 seems certain that such custodian 
 cannot surrender or impair a single 
 right of any kind that is vested in the 
 child nor impose any legal burden 
 upon it. If a mother traveling with 
 her child in her arms should agree 
 with a railway company, that in case 
 of an accident to such infant, by rea- 
 son of the joint negligence of herself 
 and the company, the latter should 
 not be liable to a suit by the child, 
 such an engagement would be plainly 
 invalid on two grounds — first, the 
 contract would be contra bonos mores, 
 and, second, because the mother was 
 not the agent of the child authorized 
 
§2l6 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 415 
 
 § 216. Recent decision in Illinois. — Another decision 
 entitled to much influence upon this question, is that 
 
 to enter into the agreement. Never- 
 theless, the position has been deemed 
 defensible that the same evil conse- 
 quence to the infant will follow from 
 the negligence of the mother in the 
 absence of such supposed contract, 
 as would have resulted if such con- 
 tract should have been made and 
 should have been held valid. 
 
 " In fact, this doctrine of the im- 
 putability of the misfeasance of the 
 keeper of a child to the child itself, is 
 deemed to be a pure interpolation 
 into the law, for until the case under 
 criticism it was absolutely unknown ; 
 nor is it sustained by legal analogies. 
 Infants have always been the particu- 
 lar objects of the favor and protection 
 of the law. In the language of an 
 ancient authority this doctrine is thus 
 expressed : ' The common principle is, 
 that an infant in all things which 
 sound in his benefit shall have favor 
 and preferment in law as well as 
 another man, but shall not be preju- 
 diced by anything in his disadvan- 
 tage.' 9 Vin. Abr. 374. And it would 
 appear to be plain that nothing could 
 be more to the prejudice of an infant 
 than to convert, by construction of 
 law, the connection between himself 
 and his custodian into an agency to 
 which the harsh rule of respondeat 
 superior should be applicable. The 
 answerableness of the principal for 
 the authorized acts of his agent is not 
 so much the dictate of natural justice 
 as of public policy, and has arisen, 
 with some propriety, from the circum- 
 stances, that the creation of the 
 agency is a voluntary act, and that it 
 can be controlled and ended at the 
 will of its creator. But in the rela- 
 tionship between the infant and its 
 keeper, all these decisive characteris- 
 
 tics are wholly wanting. The law 
 imposes the keeper upon the child, 
 who, of course, can neither control or 
 remove him, and the injustice, there- 
 fore, of making the latter responsible, 
 in any measure whatever, for the torts 
 of the former, would seem to be quite 
 evident. Such subjectivity would be 
 hostile, in every respect, to the nat- 
 ural rights of the infant, and, conse- 
 quently, cannot, with any show of 
 reason, be introduced into that pro- 
 vision which both necessity and law 
 establish for his protection. Nor can 
 it be said that its existence is neces- 
 sary to give just enforcement to the 
 rights of others. When it happens 
 that both the infant and its custodian 
 have been injured by the co-operative 
 negligence of such custodian and a 
 third party, it seems reasonable, at 
 least in some degree, that the latter 
 should be enabled to say to the cus- 
 todian, you and I, by our common 
 carelessness, have done this wrong, 
 and, therefore, neither can look to the 
 other for redress; but when such 
 wrong-doer says to the infant, your 
 guardian and I, by our joint miscon- 
 duct, have brought this loss upon you, 
 consequently you have no right of 
 action against me, but you must look 
 for indemnification to your guardian 
 alone, a proposition is stated that ap- 
 pears to be without any basis either 
 in good sense or law. The conversion 
 of the infant, who is entirely free from 
 fault, into a wrong-doer, by imputa- 
 tion, is a logical contrivance uncon- 
 genial with the spirit of jurisprudence. 
 The sensible and legal doctrine is this : 
 an infant of tender years cannot be 
 charged with negligence, nor can he 
 be so charged with the commission of 
 such fault by substitution, for he is in- 
 
4i6 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 § 2l6 
 
 recently made by the Illinois Supreme Court.^ The 
 court, recognizing that its attitude upon the question 
 
 capable of appointing an agent, the 
 consequence being that he can, in no 
 case, be considered to be the blama- 
 ble cause, either in whole or in part, 
 of his own injury. There is no injus- 
 tice, nor hardship, in requiring all 
 wrong-doers to be answerable to a 
 person who is incapable either of self- 
 protection or of being a participator 
 in their misfeasance. 
 
 " Nor is it to be overlooked that the 
 theory here repudiated, if it should be 
 adopted, would go the length of mak- 
 ing an infant in its nurse's arms an- 
 swerable for all the negligences of such 
 nurse while thus employed in its ser- 
 vice. Every person so damaged by the 
 careless custodian would be entitled 
 to his action against the infant. If 
 the neglects of the guardian are to be 
 regarded as the neglects of the infant, 
 as was asserted in the New York de- 
 cision, it would, from logical necessity, 
 follow, that the infant must indemnify 
 those who should be harmed by such 
 neglects. That such a doctrine has 
 never prevailed is conclusively shown 
 by the fact that in the reports there is 
 no indication that such a suit has ever 
 been brought. 
 
 " It has already been observed that 
 judicial opinion, touching the subject 
 just discussed, is in a state of direct 
 antagonism, and it would, therefore, 
 serve no useful purpose to refer to any 
 of them. It is sufficient to say, that 
 the leading text-writers have conclud- 
 ed that the weight of such authority is 
 adverse to the doctrine that an infant 
 can become, in any wise, a tortfeasor 
 by imputation, i Shearm. & R., Neg., 
 sec. 75; Whart., Neg., sec. 311; 2 
 Wood, Railw. L., p. 1284." 
 
 ' Ciiicago City Ry. Co. v. Wilcox, 
 27 N. E. Rep. 899, 44 Alb. L. J. 70 
 
 (1891), Bailey, J., says in reference to 
 the general question under discus- 
 sion : " The question then is whether 
 the negligence of the plaintiff's par- 
 ents, even if such negligence is proven, 
 can be imputed to the plaintiff, so as 
 to be available in support of the 
 defense of contributory negligence. 
 Upon this question the decisions of 
 the courts of the various States are 
 very much in conflict. The leading 
 case among those which hold that 
 the negligence of a parent, custodian, 
 or one in loco parentis should be im- 
 puted to a child not capable of caring 
 for his own safety, is Hartfield v. 
 Roper, 21 Wend. 615, decided by the 
 Supreme Court of New York in 1839. 
 .... "The rule thus established 
 has been adhered to, with slight 
 modifications, by the courts of New 
 York, and has also been adopted by 
 the courts of several of the other 
 States, and is usually known as the 
 ' New York Rule.' What is known 
 as the ' English Rule ' is declared in 
 Waite v. Railway Co., El. Bl. & El. 
 719. In that case the plaintiff, an 
 infant about five years- old, was in 
 charge of his grandmother, who pur- 
 chased tickets for both at a station, 
 with the intention of taking the train 
 to another point on said line of rail- 
 way. In crossing the track to reach 
 a platform they were run down by a 
 train under circumstances of concur- 
 rent negligence on the part of the 
 grandmother and the servants of the 
 company. The grandmother was 
 killed and the plaintiff seriously in- 
 jured. The court, in holding that no 
 recovery could be had, repudiated the 
 idea that there was any relation be- 
 tween the plaintiff and his grand- 
 mother akin to that of principal and 
 
§ 2l6 CONTRIBUTORY NEGLIGENCE. 417 
 
 was in doubt, in the case referred to, reviews its former 
 decisions and finds nothing in them requiring it to hold 
 that a child is deprived of his right of action. In the 
 opinion of Mr. Justice Bailey it is said, in regard to the 
 position of the court upon this question : " It seems to 
 be assumed by several of the writers on the subject that 
 this court is committed to the doctrine that in a suit by 
 a child to recover damages caused by the negligence of 
 the defendant, the negligence of the plaintiff's parents or 
 custodians, may be imputed to the plaintiff in support of 
 the defense of contributory negligence. While there is 
 in some of the cases some foundation for this assump- 
 tion, yet, in our opinion, the question has never been so 
 considered or determined by this court as to make it the 
 settled rule in this State. Most of the cases to which 
 reference is made as supporting said doctrine, were suits 
 brought by a parent in his own right, or as the legal 
 representative of the child, where the death of the child 
 was alleged to have been caused by the negligence of 
 
 the defendant Not being concluded, therefore, 
 
 by any of our former decisions, we are disposed to adopt 
 the rule which seems to us to be most reasonable and 
 most in conformity with the recognized principles of the 
 common law, viz. : that where a child of tender years is 
 injured by the negligence of another, the negligence of 
 his parents, or others, standing in loco parentis cannot 
 be imputed to him so as to support the defense of con- 
 
 agent, but placed its decision upon try, in many of the States, the rule 
 
 the theory that he and she were identi- established by the case of Hartfield 
 
 fied the same as though he had been v. Roper has been seriously criticised 
 
 in her arms. The decision turned and condemned. The leading case 
 
 upon the legal identity between the in which that rule is repudiated, and 
 
 infant plaintiff and his custodian, and in which is established what has 
 
 did not go beyond that class of cases sometimes been called the ' Vermont 
 
 in which the parent or custodian is Rule,' is Robinson v. Cone, 22 Vt. 
 
 present and controlling the infant at 213." 
 the time of the injury. In this coun- 
 27 
 
4i8 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 217 
 
 tributory negligence to his suit for damages. So far, 
 then, as this branch of the case now under consideration 
 is concerned, therefore the instruction given contained 
 no error as to which the defendant has any just ground 
 of complaint." 
 
 § 217. Tendency of the law toward allowing action.— The 
 tendency of the law upon this question as shown in these 
 cases, and in the decisions of other courts,^ is clearly to- 
 
 1 In Shippy v. Au Sable (Mich.), 48 
 N. W. Rep.' 584 (1 891), Morse, J., 
 says : " Authorities are cited to es- 
 tablish the doctrine that the negli- 
 gence of the parents can be imputed 
 to the child in such a case as this, 
 even when the suit is in behalf of the 
 child and not of the parent. I have 
 expressed my views as fully as I de- 
 sire in respect to this matter in Batti- 
 shill V. Humphreys, 64 Mich. 503, 
 511, 31 N. W. Rep. 894. I am also 
 satisfied that the g^reater weight of 
 authority in this country is now op- 
 posed to the contention of the de- 
 fendant." 
 
 And in Schindler v. Milwaukee, L. 
 S. &. W. Ry. Co., 44 Alb. L. J. 303, 
 the same court said : " In this case the 
 plaintiff at the time of the injury was 
 too young to be held accountable for 
 the neglect to exercise due care and 
 caution, but it is claimed that the 
 negligence of the driver is imputable 
 to the child. The leading case fa- 
 voring the doctrine of imputed negli- 
 gence isHartfield v. Roper, 21 Wend. 
 615, and the leading case denying the 
 doctrine is Robinson v. Cone, 22 Vt. 
 213. In the Hartfield case, Judge 
 Cowen held that there was no evi- 
 dence of any negligence on the part 
 of the defendant, and this, of course, 
 disposed of the plaintiff's right to re- 
 cover. But he discussed the negli- 
 gence of the child, who was about 
 
 two years old, and of the parents in 
 permitting it to stray into the public 
 highway, where it was injured, and 
 he laid down the doctrine that the 
 negligence of the parents should be 
 imputed to the child, and for that 
 reason the child ought not to recover. 
 To my mind the reasoning of the 
 learned judge is not satisfactory. 
 There is no principle of justice which 
 demands that the fault or want of 
 care of one person shall be imputed 
 to another who is without fault or in- 
 capable of caring for himself, and 
 thus excuse the fault or negligence of 
 a person causing injury to an inno- 
 cent party. The doctrine of imputed 
 negligence punishes the innocent and 
 permits the gfuilty to escape. It de- 
 nies a remedy for a civil wrong done 
 to an individual through the negli- 
 gence of another, when the party in- 
 jured was not in fault. There is no 
 principle of public policy that requires 
 that this should be done." 
 
 Wymore v. Mahaska County, 78 
 Iowa 396, 16 Am. St. Rep. 449, 29 
 Am. & Eng. C. C. 480 (1889), Rob- 
 inson, J., says : " In August, 1883, 
 Henry Smith, with his family, con- 
 sisting of his wife, a daughter, and 
 plaintiff's intestate, then about two 
 years of age, attempted to drive over 
 a county bridge of defendant in a 
 wagon drawn by two horses. The 
 bridge fell while the team was on it. 
 
217 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 419 
 
 ward the view that the principle of justice which allows 
 a remedy to one who has been injured by the negligence 
 
 and the wagon and its occupants fell 
 to the stream below. The fall re- 
 sulted in the death of the mother 
 and plaintiff's intestate. The plaintiff 
 claims that at the time in question the 
 bridge was out of repair and in a 
 dangerous condition, and that the de- 
 fendant is chargeable with knowl- 
 edge of that fact ; that it fell in con- 
 sequence of that condition ; and that 
 decedent did not contribute to the in- 
 jury of which plaintiff complains. 
 .... So far as we are advised, the 
 question now presented to us has 
 never been directly determined by 
 this court, although it seems to have 
 been assumed in some cases that the 
 negligence of the parent might be im- 
 puted to the child. Of that kind is 
 the case of Walters v. Chicago, R. I. 
 & R.R. Co., 41 Iowa 78 ; but in that 
 it was held that the negligence of the 
 person in whose charge the parents 
 had placed the child could not be im- 
 puted to the parent, and through the 
 parent to the child. In Slater v. Bur- 
 lington, C. R. & N. R. Co., 71 Iowa 
 209, the point was expressly reserved 
 from decision. The doctrine of im- 
 putable negligence was considered in 
 Nesbit V. Town of Gamer, 75 Iowa 
 315, 25 Am. & Eng. C. C. 112; but 
 the question now under consideration 
 was not involved in that case. That 
 the negligence of the parent is im- 
 putable to the child has been affirmed 
 by numerous coUrts of high standing. 
 See Hartfield v. Roper, 21 Wend. (N. 
 Y.) 615 ; Morrison v. Erie R. Co., 56 
 N. Y. 302 ; Thurber v. Harlem Bridge, 
 M. & F. R. Co., 60 N. Y. 327 ; Lynch 
 V. Smith, 104 Mass. 53 ; Gibbons v. 
 Williams, 135 Mass. 335; Fitzgerald 
 V. St. Paul, M. & M. R. Co., 29 Minn. 
 336, 8 Am. & Eng. R. Cas. 310; 
 
 Brown v. European & N. A. R. Co., 
 
 58 Me. 384 ; Leslie v. Lewiston, 62 
 Me. 468 ; Hathway v. Toledo, W. & 
 W. R. Co., 46 Ind. 26 ; Toledo, W. & 
 W. R. Co. v. Grable, 88 III. 452 ; At- 
 chison, T. & S. F. R. Co. V. Smith, 
 28 Kan. 542 ; Meeks v. Southern Pac. 
 R. Co., 52 Cal. 603 ; Stillson v. Han- 
 nibal & St. J. R. Co., 67 Mo. 674. 
 Among the cases holding to the con- 
 trary are the following : Bellefontaine 
 & J. R. Co. V. Snyder, 18 Ohio St. 
 408; Huff V. Ames, 16 Neb. 139; 
 Galveston H. &. H. R. Co. v. Moore, 
 
 59 Tex. 64, 10 Am. & Eng. R. C. 745; 
 Erie City P. R. Co. v. Schuster, 113 
 Pa. St. 41 2 ; Robinson v. Cone, 22 
 Vt. 214; Daley v. Norwich & W. R. 
 Co., 26 Conn. 591 ; Railroad Co. v. 
 Ormsby, 27 Gratt. (Va.) 476 ; Boland 
 V. Missouri R. Co., 36 Mo. 489 ; 
 Whirley v. Whiteman, i Head 
 (Tenn.) 619 ; Beach, Contrib. Neg., 
 §§41-43. See Battishill V.Humphreys, 
 64 Mich. 494, 28 Am. & Eng. R. Cas. 
 597, I Shear. & R., Neg., §§ 70-83, 
 and notes. It seems to us that the 
 authorities last cited announce the 
 better rule. The parent is not in any 
 proper sense the agent of the child. 
 The former is required to g^ve the 
 latter care, protection, and support, 
 and in return may exact service and 
 obedience. But these duties are im- 
 posed by law and are not the result 
 of any contract between the parties. 
 In this case the child was taken into 
 the wagon, and exposed to the acci- 
 dent which resulted in his death, with- 
 out volition on his part. He certain- 
 ly was free from fault. If his parents, 
 by their negligence, contributed to 
 his death, that does not seem to us to 
 be a sufficient reason for denying his 
 estate relief. Such negligence would 
 
420 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 217 
 
 of another, and who is not in fault himself, requires that 
 the right of action of the child shall be upheld. And 
 this seems the reasonable view, inasmuch as the third per- 
 son is a wrong-doer, and the child is not, and the ques- 
 tion is not whether the duty of a parent exists, but 
 whether a wrong-doer may take advantage of a breach of 
 this duty. Moreover, applying the principle to munici- 
 pal corporations there would be no hardship in extending 
 liability to include injuries done to young children so 
 exposed, for the measure of the duty of the corporation 
 
 prevent a recovery by the parents in 
 their own right. Smith v. Heston- 
 ville, M. & F. P. R., 92 Pa. St. 450, 2 
 Am. & Eng. R. C. 12; Huff v. Ames, 
 16 Neb. 139 ; Bellefontaine R. Co. v. 
 Snyder, 24 Ohio St. 670, i Shear. & 
 R., Neg., § 71 ; Erie City P. R. Co. v. 
 Schuster, 113 Pa.St. 412; Classey v. 
 Hestonville, M. & F. P. R. Co., 57 
 Pa. St. 172. See also Albertson v. 
 Keokuk & D. R. Co., 48 Iowa 294 ; 
 Beach, Contrib. Neg., § 44 ; Pratt Coal 
 & Iron Co. v. Brawley, 83 Ala. 371 ; 
 Evansville & C. R. Co. v. Wolf, 59 
 Ind. 90. But it appears to us to be 
 unjust and contrary to reason to hold 
 that the irresponsible child should be 
 responsible for the wrongful acts of 
 his parents or others who may have 
 him in charge. He is incapable by 
 himself of committing any act of neg- 
 ligence and cannot authorize another 
 to committ one ; therefore it seems 
 unreasonable to require him or his es- 
 tate to suffer loss because of the neg- 
 lect of unauthorized acts of his par- 
 ents or others. Some authorities 
 seem to make a distinction between 
 cases where the contributory negli- 
 gence of the parent occurs while he 
 has the child under his immediate 
 control, and other cases which occur 
 when the child is away from the par- 
 ent ; but we are of the opinion that 
 
 there is no sufficient ground for the 
 distinction claimed. The authority 
 of the parent does not depend upon 
 the proximity of the child. 
 
 " It is claimed that appellant ought 
 not to recover, for the reason that it 
 is not shown that the parents of the 
 child were free from contributory neg- 
 ligence ; and since they inherited his 
 estate, the rule which would bar a 
 negligent party from recovering in 
 such a case in his own right ought to 
 apply. But plaintiff seeks to recover 
 in the right of the child, and not for 
 the parents. It may be that a recov- 
 ery in this case will result in confer- 
 ring an undeserved benefit upon the 
 father, but that is a matter which we 
 cannot investigate. If the facts are 
 such that the child could have recov- 
 ered had his injuries not been fatal, 
 his administrator may recover the full 
 amount of damage which the estate 
 of the child sustained." 
 
 See Winters v. Kansas City, etc. Ry. 
 Co., 99 Mo. 509, 17 Am. St. Rep. 591 
 (1889); Westbrook v. Mobile, etc. R. 
 Co., 66 Miss. 560, 14 Am. St. Rep. 
 587, note (1889). See also Shear- 
 man and Redfield on Neg., § 78 ; Am. 
 Law Review, vol. iv., p. 405 ; Gulf, 
 etc. V. McWhirter, 77 Tex. 356, 14 S. 
 W. Rep. 26; Elyton Land Co. v. 
 Nimgea (Ala.), 7 So. Rep. 666. 
 
§217 CONTRIBUTORY NEGLIGENCE. 42 1 
 
 is the exercise of reasonable care to keep the ways safe 
 for ordinary use merely. The following remarks give 
 further support to this view and show that the question 
 is unsettled in England : 
 
 " If the child is injured through the contributory neg- 
 ligence of the father, it is manifest that the father is not 
 entitled to recover for loss of services ; for his own act 
 brought about the loss for which he seeks to recover. 
 But why should the child be identified with him ? Not 
 because of the father's moral duty, which, however strong, 
 does not import a legal obligation ; while no legal obli- 
 gation, to which the disability can be referred, is evi- 
 dent. 
 
 " In principle, then, there seems to be no reason why 
 the child should be disentitled by reason of the parent's 
 negligence, in placing it or permitting it to be in a posi- 
 tion in which it has sustained injury. In America, in- 
 deed, there are conflicting decisions on the point ; while 
 in England, the point does not seem to have been di- 
 rectly decided, at least in any reported case, probably be- 
 cause juries have taken the matter into their own hands 
 in cases where the defendant has been negligent, and 
 negatived the issue of contributory negligence."^ 
 
 ' Beven on Negligence (1889), p. ant's duty can be measured by this 
 
 156. notice of special risk and his means of 
 
 Pollock on Torts, p. 382, says: avoiding it; there is no reason for 
 
 " Now take the case of a child not old making it vary with the diligence or 
 
 enough to use ordinary care for its negligence of a third person in giving 
 
 own safety, which, by the carelessness occasion for the risk to exist. If the de- 
 
 of the person in charge of it, is allowed fendant is so negligent that an adult in 
 
 to go alone in a place where it is ex- the plaintiff's position could not have 
 
 posed to danger. If the child comes saved himself by reasonable care, he 
 
 to harm, does the antecedent negli- is liable. If he is aware of the plain- 
 
 gence of the custodian make any dif- tiff's helplessness, and fails to use 
 
 ference to the legal result .' On prin- such special precaution as is reason- 
 
 ciple, surely not, unless a case can be ably possible, then also, we submit, he 
 
 conceived in which that negligence is is liable. If he did not know, and 
 
 the proximate cause. The defend- could not with ordinary diligence 
 
422 CONTRIBUTORY NEGLIGENCE. § 2l8 
 
 § 2i8. No action by negligent parent.— It is, however, 
 generally held that a parent who is negligent cannot sue 
 in his own behalf for the loss of his child, when his own 
 negligence has contributed to the damage.^ And this is 
 in accordance with the doctrine of contributoiy negli- 
 gence, for, if he were allowed to recover, the person 
 whose negligence was the proximate cause of the injury 
 would derive benefit from his own wrong-doing. In a 
 recent case, however, the court refused to take cogni- 
 zance of the fact that a recovery for the benefit of the 
 estate of a child would benefit the father.^ 
 
 have known, the plaintiff to be in- Rep. 899 {supra, p. 416, n. i), it is 
 
 capable of taking care of hinaself, and said : " Where an action for the neg- 
 
 has used such diligence as would be ligent injury of an infant is brought 
 
 sufficient toward an adult ; or if, be- by a parent, or for a parent's own 
 
 ing awate of the danger, he did use benefit, it is very justly held that the 
 
 such additional caution as he reason- contributory negligence of such parent 
 
 ably could ; or if the facts were such may be shown in bar of the action." 
 
 that no additional caution was prac- See Chicago v. Hesing, 83 111. 204,; 
 
 ticable, and there is no evidence of Chicago v. Starr, 42 111. 174; Chicago 
 
 negligence according to the ordinary v. Major, 18 III. 349. 
 
 standard, then the defendant is not ' Wymore v. Mahaska County, 78 
 
 liable." la. 396, supra, p. 418, n. i. See for 
 
 ' See j«/r«, p. 421. See also Shear- a similar action Birkett v. Knicker- 
 
 man & Redfield, Neg., § 71. In Chi- bocker Ice Co., no N. Y. 504. 
 cago City Ry. Co. v. Wilcox, 27 N. E. 
 
CHAPTER XXIII. 
 
 CONTRIBUTORY NEGLIGENCE, CONTINUED. 
 
 § 219. General duty of person using highway. 
 
 220. Rule applied to persons without full powers. 
 
 221. Effect of knowledge of danger. 
 
 222. Question generally for jury. 
 
 223. Dangerous bridge. 
 
 224. What is not contributory negligence. 
 
 225. Sunday travel. 
 
 226. Improper driving. 
 
 227. Deviation from the highway. 
 
 228. Whether there is contributory negligence usually for jury. 
 
 § 219. General duty of persons using highways. — Every 
 individual is required to exercise reasonable care to pro- 
 tect himself from danger, and he must use such senses as 
 he possesses to keep himself from injury by the negli- 
 gence of others.^ He is entitled to assume, however, 
 that the public streets and walks maintained by a mu- 
 nicipal corporation are reasonably safe for use by day or 
 by night.^ But he cannot rely on this assumption to pro- 
 tect him when there is an open defect in the way that 
 he could readily have seen had he looked. The extent 
 
 I In Robb V. Connellsville Bor., to constitute authority for those who 
 
 137 Pa. 42 (1890), Mr. Justice Mitch- need it. Barnes v. Sowden, 119 Pa. 
 
 ell says: "That the reasonable care 53; King v. Thompson, 87 Pa. 365; 
 
 that the law exacts of all persons in Dehnhardt v. Philadelphia, 15 W. N. 
 
 whatever they do involving risk of 214; Philadelphia v. Smith, 23 W. N. 
 
 injury, requires travelers, even oh the 242. See also Dickson v. HoUister, 
 
 footways of public streets, to look 123 Pa. 421, and Buzby v. Traction 
 
 where they are going, is a proposi- Co., 126 Pa. 559." 
 
 tion so plain that it has not often See Beach on Cont. Neg., 2d ed.,. 
 
 called for formal adjudication. But § 249; Butterfield v. Forrester, 11 
 
 it has been expressed or manifestly East 60. 
 
 implied in enough of our own cases "^ Supra, % 72. 
 
424 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 219 
 
 of the obligation resting upon him is to exercise reason- 
 able care,^ and when this care is not used by one for his 
 
 1 In Chicago v. McLean, 133 111. 
 148 (1890), Mr. Justice Magruder said : 
 " Appellant also assigns as error the 
 refusal of the court to give the fourth 
 and sixth instructions asked by it. 
 In the fourth it was stated that 'a 
 person in the full possession of her 
 faculties, passing over a sidewalk 
 •where there is light, with no crowd to 
 jostle or disturb her and no interven- 
 ing obstacle to hide a dangerous place 
 which she is approaching, and no 
 sudden cause to distract her attention, 
 is bound to use her eyes to direct her 
 footsteps, and if she failed to do so, 
 and is negligent therein, she has no 
 cause of action against the city for 
 injuries received by her because she 
 stepped, without looking, into such 
 dangerous place.' In the sixth it was 
 said that ' ordinary care requires that 
 the foot passenger shall use her eyes 
 as well as her feet, and, therefore, if 
 you believe from the evidence, that 
 the plaintiff was injured because of 
 the failure on her part to look where 
 she was going, or observe the condi- 
 tion of the sidewalk on which she 
 was walking, you should find the de- 
 fendant guilty.' 
 
 " These instructions were properly 
 refused. They virtually tell the jury 
 that certain facts constitute negli- 
 gence. Negligence is a question of 
 fact and not one of law, and ' it is for 
 the jury to determine, from the evi- 
 dence, whether one or both of the 
 parties may have been negligent in 
 their conduct, and not for the court 
 to take the question from them, and 
 declare that, if certain facts exist, 
 negligence is established.' Myers v. 
 I. & St. L. Ry. Co., 113 111. 386, and 
 cases there cited. 
 
 "The plaintiff in this case was 
 
 bound to make a reasonable use of 
 her faculties when walking along the 
 sidewalk in order to avoid danger, but 
 what was such reasonable use was a 
 question of fact to be determined by 
 the jury under all the circumstances 
 disclosed by the evidence. A number 
 of instructions, which were given, told 
 the jury that the plaintiff could not 
 recover unless she ' was at the time 
 of such injury exercising reasonable 
 care and caution.' 
 
 " Several instructions given at the 
 request of the defendant embodied 
 all that was material or important in 
 the refused instructions. Among these 
 was the eleventh, which is as follows : 
 
 " ' 1 1. If, after considering all the evi- 
 dence, you should believe the de- 
 fendant's servants in charge of the 
 street in controversy failed to exercise 
 ordinary care in keeping its sidewalks 
 on that street in safe condition, yet if 
 you also believe, from the evidence, 
 that plaintiff, at the time of the injury, 
 failed to exercise ordinary care for her 
 own safety to prevent or to avoid the 
 injury complained of, then there can 
 be no recovery by the plaintiff in this 
 case, and the jury should find the de- 
 fendant not guilty.' 
 
 " What particular facts amounted to 
 an exercise of ordinary care, or what 
 particular facts amounted to a want 
 of ordinary care, it was for the jury, 
 and not for the court, to determine. 
 Wabash Ry. Co. v. Elliott, 98 111. 
 481." 
 
 If a person sees a light in a trench 
 in a street, and in attempting to 
 drive around it without examination 
 his horse is injured, the test to be 
 applied in judging whether he was 
 negligent is, did he act as a rea- 
 sonable man of ordinary care and 
 
§ 220 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 425 
 
 own safety and the neglect to use it is tiie proximate 
 cause of the damage that comes to him, he is prevented 
 from charging the injury to another. 
 
 § 220. Rule applied to persons without full powers.— 
 Children of tender years — sometimes it is said under 
 seven years of age— are not, in the eyes of the law, capa- 
 ble of committing a negligent act ; ^ and it is only, as we 
 have seen, by imputing the negligence of their parents to 
 them,^ that the doctrine of contributory negligence will 
 deprive them of an action for an injury occasioned by the 
 negligence of another. A child sufficiently old to be 
 chargeable with the duty of exercising care, is required 
 by the law to use only such care as is reasonable in view 
 of its age, sex, and the surroundings under which it is 
 called upon to act.^ And persons who are blind,* or aged,^ 
 
 prudence would have acted under 
 similar circumstances? Wood v. 
 Brigeport (Pa.), 48 Leg. Int. 500, 22 
 Atl. Rep. 752 (1891). Cf. Stephen- 
 son V. Equitable Gas Light Co., 37 
 N. Y. St. Reif. 658, 14 N. Y. Supp. 
 67 ; Kerrigan v. Clarksburg, 1 50 
 Mass. 218, 5 L. R. A. 609. 
 
 See supra, §§ 4, 7. 
 
 ' See Shippy v. Au Sable, 85 Mich. 
 280 (1891); Kunz V. Troy, 104 N. Y. 
 344 ; Shearman and Redfield on Neg., 
 §§ 72. 73- 
 
 '^ Supra, § 211. 
 
 ' Illinois, etc. R. Co. v. Slater, 129 
 III. 91 (1889); Rosenberg V. Durfee, 87 
 Cal. 545 (1891); GuUine v. Lowell, 144 
 Mass. 491 ; Beacji on Cont. Neg., 2d 
 ed., § 136. See note 6 L. R. A. 536. 
 
 ■' Marion v. Skillman, 127 Ind. 130 ; 
 Neff V. Wellesley, 148 Mass. 487 ; 
 Smith V. Wildes, 143 Mass. 556. 
 
 In Harris et al. v. Uebelhoer, 75 
 
 N. Y. 169 (1878), Folger, J., says : " It 
 is beyond dispute, that the husband of 
 the intestate was so far deficient in 
 the physical faculty of seeing, as to 
 be practically blind. But the fact of 
 bUndness, coupled with the presence 
 in public places of one thus afflicted, 
 is not per se conclusive proof of negli- 
 gence in the blind person ; still less in 
 one who accompanies him, and who, 
 relying upon him for the exercise of 
 his faculties which he retains, uses 
 her own faculty of seeing, so as to in- 
 telligently direct his strength and his 
 skill. Davenport v. Ruckman, 37 N. 
 Y. 568 ; Requa v. City of Rochester, 
 45 Id. 129. We must assume that the 
 creek, across which the plaintiff's in- 
 testate was moving, was a public 
 highway. As such, it was as much 
 open to the use of a blind man as one 
 having eyesight. A public highway 
 is liable to use, and may be of right 
 
 ^ Centralia v. Krouse, 64 111. 19. 
 
426 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 221 
 
 or for any reason unable to exercise the full degree of care 
 required from the average man, are held to the exercise 
 of such care as is reasonable in view of their particular 
 cases.^ A person of this character, hov^^ever, is aware of 
 his own condition, and must shape his conduct with a 
 reasonable regard therefor. Thus a blind man may go 
 upon the street, but it is reasonable to require from him 
 special care proportioned to the dangers to which he is 
 exposed. 
 
 § 221. Effect of knowledge of danger. — Many cases 
 have arisen where it has been shown by municipal corpo- 
 rations that the persons who have endeavored to hold 
 them responsible for defective ways were themselves 
 aware of the existence of these defects, and effort has 
 been made to establish the rule that knowledge of a de- 
 fect in and subsequent user of a walk would estop a person 
 
 used in the darkest night : a night so 
 dark as that the keenest and clearest 
 vision would not be able to detect ob- 
 stacles and defects. In such case, 
 every man traveling upon it is practi- 
 cally a blind man. Yet if he be injured 
 by an obstacle or defect, without the 
 absence of what, in the circumstances, 
 are ordinary prudence and care upon 
 his part, he is not remediless. The 
 fact that, having eyes he could not see 
 the cause of the injury, is not per se 
 such conclusive evidence of his negli- 
 gence as that the law must so adjudge, 
 as matter of law. Blindness, of itself, is 
 not negligence, any more than the ob- 
 scurity of sight by the absence of light. 
 The practical result of both is the 
 same, viz. : that the person placed in 
 either category cannot see. And in 
 the one case, as well as in the other, 
 the lack of the power to see must be 
 taken into the account, and the con- 
 duct of the person thus hindered must 
 be considered, and he must be held to 
 
 such requirement of action as is rea- 
 sonable in the peculiar situation in 
 which he is found. He must be more 
 cautious. He must bring about him 
 greater guards, and go more slowly 
 and tentatively than if he had his eye- 
 sight, or the light of day shone upon 
 him. And it remains the question, 
 whether the blind man, or the man in 
 the dark, did so conduct himself, as he 
 was bound to do under the circum- 
 stances, and as would bring his acts 
 up to the rule of that care and pru- 
 dence which an ordinarily cautious 
 person would use in a like position. 
 This may, from the force of the testi- 
 mony, be sometimes a question of law. 
 It is likely oftener tt) be a question of 
 fact." See also Peach v. Utica, 10 
 Hun (N. Y.) 477 ; Sleeper v. Sandown, 
 52 N. H. 244; Winn v. Lowell, 83 
 Mass. 177. 
 
 ' Compare Shearman and Redfield, 
 Negligence, § 88. 
 
221 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 427 
 
 injured from claiming damages. But this is not the law, 
 for " such knowledge does not always bar a party from 
 a right of recovery."^ If a person knows that a walk is 
 defective, he may use it unless his act in so doing is not 
 reasonably prudent.^ He is not obliged to give up a walk 
 provided by the corporation, or else use it at his peril,^ but 
 
 ■ Dundas v, Lansing, 75 Mich. 499 
 (1889). 
 
 ' Argus V. Sturgis (Mich.), 48 N. 
 W. Rep. 1085 (1891) ; Poseyville v. 
 Lewis, 126 Ind. 80 (1890) ; Fort 
 Wayne v. Breese, 123 Ind. 581, 23 N. 
 E. Rep. 1038 ; Plymouth v. Milner, 
 117 Ind. 324; Elkhart v. Witman, 
 122 Ind. 538; Murphy V. Indianapo- 
 lis, 83 Ind. 76 ; Byerly v. Animosa, 79 
 la. 204 ; Troxell v. Vinton, 77 la. 90 
 (1889) ; FuUiam v. Muscatine, 70 la. 
 436, 30 N. W. Rep. 86 ; McGinty v. 
 Keokuk, 66 la. 725 ; Parkhill v. 
 Brighton, 61 la. 103; Montgomery v. 
 Wright, 72 Ala. 411, 47 Am. Rep. 
 422 ; Flora v. Nancy (111.), 26 N. E 
 Rep. 645 ; Centralia v. Krause, 64 
 111. 19; McKenzie v. Northfield, 30 
 Minn. 456 ; Lowell v. Watertown, 58 
 Mich. 568, 25 N. W. Rep. 517 ; Joyce 
 V. Worcester, 140 Mass. 245 ; Lyman 
 V. Hampshire, 140 Mass. 311 (1885); 
 Gilbert v. Boston, 139 Mass. 313 
 (1885); George V. Haverhill, I lo Mass. 
 506 ; Pollard v. Woburn, 104 Mass. 
 84 ; Hyde v. Jamaica, 27 Vt. 443. In 
 Crafts V. Boston, 109 Mass. 519, there 
 was previous knowledge and no evi- 
 dence that due care was exercised. 
 Kingston v. Gibbons (Pa.), 9 East. 
 Rep. 781 (1886). In Erie v. Magill, 
 loi Pa. 616, 47 Am. Rep. 739, the 
 testimony showed that the obstru:- 
 tion could have been avoided at the 
 time of the accident by the exercise 
 of due care ; Weed v. Ballston Spa, 76 
 N. Y. 330 ; Halloway v. Lockport, 54 
 Hun (N. Y.) 183; Taylor v. Consta- 
 
 ble, 57 Hun 371, 15 N. Y. Supp. 795 ; 
 Walker v. Reidsville, 96 N. C. 382 ; 
 Schaefler v. Sandusky, 33 Ohio St. 
 246 ; Hopkins v. Rush River, 70 Wis. 
 10, 34 N. W. Rep. 909 ; Hesser v. 
 Grafton, 33 W.Va. 548, 11 S. E. Rep. 
 211. 
 ' In Altoona v.Lutz,! i4Pa. 238 (Pa.), 
 6 Cent. Rep. 135 (1886), it was said: 
 " It is not the law that a resident in a 
 city must remain continuously on his 
 property, when the city grossly neg- 
 lects the repair of its streets, under 
 pain that if he ventures on the streets 
 or walks and suffers injury resulting 
 from the city's default, he can recover 
 nothing. Nor is the resident bound 
 under like pain to abstain from going 
 to church in the evening or other 
 places where he may be moved to go 
 by a sense of duty or love of pleasure. 
 On his part it is enough if he takes 
 the ordinary care which ought to be 
 exercised by a prudent man under the 
 
 circumstances A glance at the 
 
 facts, as settled by the verdict, shows 
 that this case is not governed by the 
 controlling principle in Erie v. Ma- 
 gill, loi Pa. 616, and Fleming v. 
 Lockhaven, 15 W. N. C. 216. In 
 each of those cases the accident was 
 in daylight, and a convenient and safe 
 way was known to the injured party, 
 
 who chose not to take it 
 
 Whether it was daylight or dark, the 
 plaintiff was not guilty of negligence 
 in taking the unsafe walk when it 
 could not be avoided by taking a safe 
 one." 
 
428 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 § 221 
 
 he is obliged to exercise reasonable care. He may con- 
 tinue to go where the corporation sanctions his going, but 
 he can no longer assume that the walk is safe.* He knows 
 that it is not so, and his conduct must be regulated by 
 this knowledge.^ Especial care is due from him, and un- 
 less he exercises reasonable care, in view of all the cir- 
 cumstances surrounding his conduct, he will be negli- 
 gent.^ 
 
 ' See Beach, Cont. Neg., 2d ed., 
 § 37 et seg. 
 
 ' In Splittorf v. State of New York, 
 io8 N. Y. 205, 15 N. E. Rep. 322 
 (1888), Ruger, Ch. J., says : " A per- 
 son, being familiar with the situation, 
 who deUberately attempts to cross a 
 swing - bridge over a dangerous 
 stream in the night-time without ob- 
 serving whether it is open or not, 
 seems to us to be fairly chargeable 
 with negligence. The obvious pur- 
 pose of this bridge was that it should 
 be open at irregular intervals and for 
 indefinite periods. The evidence 
 showed that it was frequently open 
 from various causes and at all times 
 of day and night. The decedent had 
 at several times used the bridge pre- 
 vious to this occasion and knew its 
 location, structure, and purpose. He 
 had no right on a dark night to at- 
 tempt to cross it on an erroneous as- 
 sumption that it was in a position to 
 be crossed safely. No signal was 
 ever employed to notify the public of 
 its existing position, and travelers had 
 always been required to use their own 
 observation to determine whether it 
 was open or shut. It is quite proba- 
 ble from the evidence that there was 
 sufficient light in the vicinity to dis- 
 close its actual situation, if there had 
 been any attempt to discover it, and 
 the inference is irresistible that the 
 decedent walked off the abutment 
 
 without the slightest effort to see 
 whether the bridge was in position 
 or not." 
 
 See Merrill v. North Yarmouth, 78 
 Me. 200 (1886). 
 
 3 In Kelly v. Blackstone, 147 Mass. 
 448 (t888), Devens, J., says: "The 
 only question presented by the excep- 
 tions is whether there was sufficient 
 evidence of due care on the part of 
 the plaintiff to be submitted to the 
 jury. 
 
 " The plaintiff was walking on the 
 east side of the highway, where there 
 was a path about eighteen inches 
 wide, suitable for travelers on foot, 
 and at a slow or moderate pace. 
 From this path another path de- 
 scended the slope of the embankment 
 from top to bottom, a distance of about 
 sixteen feet ; the travel down this 
 latter path and the wash of water had 
 so worn it that at its upper end it ex- 
 tended into and cut the path along 
 the side of the way, one-half its width, 
 creating a hole, as the plaintiff testi- 
 fied, into which she fell, and thence 
 rolled down the slope. It was early 
 in the evening, but quite dark, and 
 the plaintiff was returning from her 
 daughter's house, which was on the 
 west side of the highway, to her own, 
 which was on the easterly side. She 
 did not usually walk on this side of 
 the road, and had not done so in 
 going to her daughter's house, being 
 
§221 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 429 
 
 But if a person using a sidewalk departs from it and is 
 injured, it may be claimed by the corporation that he 
 
 in the habit of crossing the highway, 
 both going and returning, near her 
 own house. On the evening of the 
 accident, she crossed to the easterly 
 side of the road, as she states, be- 
 cause she heard persons approaching 
 on the west side of the road. She 
 Icnew that there was a bad place 
 made on the east side by the inter- 
 section of the path on that side with 
 the path which descended the slope. 
 Her testimony, which is all there was 
 as to her knowledge of this defect, 
 was given at great length in her 
 cross-examination, which is fully re- 
 ported, and is somewhat confused and 
 confusing as to the extent of her 
 Icnowledge of its exact character. 
 
 " It certainly does not clearly ap- 
 pear thereby that she knew there was 
 at that point ' a wash-out at the side 
 of the road,' or 'a hole,' which are 
 the terms she used in describing the 
 place into which she fell. Nor, even 
 if she had full knowledge of the exact 
 character of the defect, would it nec- 
 essarily follow that she failed in the 
 exercise of due care because she 
 crossed to the easterly side of the 
 road to avoid meeting strangers after 
 nightfall, or because, as she states, 
 she was not thinking about the road 
 when she fell. A traveler may have 
 his attention momentarily diverted 
 from the defects in the way, even if 
 known to him, and yet be in the ex- 
 ercise of due care. 
 
 " In Weare v. Fitchburg, 1 10 Mass. 
 334, the plaintiff was called suddenly 
 home, from the house of a neighbor 
 where she was visiting, to attend her 
 children, and, running along a foot- 
 path, struck against a large stone, 
 which she knew to be therein, but of 
 which she was not thinking at the 
 
 time ; and it was held that this was 
 not conclusive evidence that she was 
 careless, and that whether she was so 
 or not, was, under all the circum- 
 stances, to be decided by the jury. 
 
 " In a similar way in the case at bar 
 the anxiety which the plaintiff might 
 have had in view of her age and her 
 timidity as to the approaching stran- 
 gers, together with the darkness of 
 the night, the pace at which she was 
 walking, and her knowledge of the 
 defect, whether more or less, as it 
 may have been found to be, were all 
 to be considered in determining 
 whether she had conducted herself 
 with that care and circumspection 
 which ought reasonably to have been 
 exercised by her as a traveler, and the 
 question was properly submitted to 
 the jury. Reed v. Northfield, 13 
 Pick. 94; George v. Haverhill, 110 
 Mass. 506, 513; Barton v. Spring- 
 field, no Mass. 131 ; Dewire v. 
 Bailey, 131 Mass. 169, 170. 
 
 " The defendant considers the case 
 of Oilman v. Deerfield, 1 5 Gray 577, 
 to be decisive in its favor. But in 
 that case, as remarked by Mr. Jus- 
 tice Colt in Weare v. Fitchburg, ubi 
 supra, ' The court declared that it 
 was impossible to find on the facts re- 
 ported that the plaintiff took the least 
 possible degree of care to preserve or 
 protect himself from the peril to which 
 he was exposed, and that his testi- 
 mony not only wholly failed to show 
 that there was the exercise of the de- 
 gree of care which men of ordinary 
 prudence use, but was equivalent to a 
 positive declaration that he was ut- 
 terly incautious and took no care of 
 himself whatever." In this view the 
 case at bar is clearly distinguishable 
 from it." 
 
430 CONTRIBUTORY NEGLIGENCE. § 222 
 
 should have remained on the walk;^ so that there is no 
 safety in following an arbitrary rule upon the question, 
 but, in each case, reasonable care in deciding upon the 
 proper course to pursue, and, in following the course de- 
 cided on, is all that is required. 
 
 § 222. Question generally for jury. — The question 
 whether a person who has knowledge of a defect in the 
 way is negligent in using it, is usually for the jury on 
 the facts presented, for it is seldom that a court is author- 
 ized in charging the jury that a person is justified either 
 in using or in not using a defective walk. The question 
 to be determined is ordinarily one of fact, namely, whether 
 there was contributory negligence in view of the circum- 
 stances attending the use of the walk, and in view of the 
 practicability of using another and equally safe and con- 
 venient passageway. In a recent case in Illinois the 
 court charged the jury at the trial as follows : " If the 
 jury believe, from the evidence, that the most direct route 
 for the plaintiff in going to and from the Congregational 
 church, in the city of Sandwich, to her home in said city, 
 was over the sidewalk along the south side of Third 
 street, in said city, then the fact, if shown by the evi- 
 dence, that such sidewalk on said street over which plain- 
 tiff passed was defective, and had been in a defective 
 condition for some months previous to the alleged injury, 
 would not oblige her to take another less convenient side- 
 walk." But upon appeal it was held ^ that the province 
 of the jury was interfered with in this instruction — the 
 
 ' See Orleans v. Perry, 24 Neb. 831 that the question of whether or not 
 
 (1888); Forker v. Sandy Lake Bor- the plaintiff was exercising ordinary 
 
 ough, 130 Pa. 123 (1889). care to avoid injury in passing over 
 
 ' Sandwich v. Dolan, 133 111. 177 the sidewalk when and where the al- 
 
 (1890). In this case Mr. Justice Craig leged injury took place, is a question 
 
 said : " The giving of this instruction of fact, to be determined by the jury 
 
 is relied upon as error. The court, in from all the evidence. This charge 
 
 instruction No. 8, directed the jury to the jury was clearly correct. The 
 
§222 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 431 
 
 court taking the ground that whether it was the duty of 
 the plaintiff to take one walk or the other was for the 
 
 plaintiff could not recover, however 
 negligent the defendant may have 
 been in failing to keep its sidewalks in 
 proper repair, unless the plaintiff, at 
 the time of the accident, was exercis- 
 ing ordinary care to avoid injury; and 
 whether plaintiff was in the exercise 
 of ordinary care, as has been often 
 held, is a question of fact. Had the 
 question of what degree of care was 
 required of plaintiff been left where 
 this instruction placed the question, 
 no fault could be found with the in- 
 struction ; but it is claimed that No. 
 10 invades the province of the jury, 
 and in substance directs them that 
 the plaintiff might expose herself to 
 known danger with impunity, pro- 
 vided she was traveling in the most 
 direct route to her home. As has 
 been said before, it was a question for 
 the jury to determine, whether the 
 plaintiff, at the time she received the 
 injury, was in the exercise of proper 
 care. If there were two routes from 
 plaintiff's residence to the church, one 
 dangerous and the other entirely safe, 
 and in the selection of a route plaintiff 
 saw proper to pass over the dangerous 
 one, it could not be determined, as a 
 matter of law, that plaintiff was justi- 
 fied in selecting the dangerous route, 
 but the question ought to have been 
 left to the jury. As an abstract ques- 
 tion, it may be that plaintiff was not 
 obliged, as declared in the instruction, 
 to take another less convenient side- 
 walk; but if she failed to do so, it 
 would be a question of fact whether, 
 in the selection of a route known to 
 be dangerous, she was in the exercise 
 of ordinary care. 
 
 " When this court had the power to 
 review questions of fact as well as 
 
 questions of law, in City of Centralia 
 V. Krouse, 64 111. 21, where a sidewalk 
 had been damaged by fire and become 
 dangerous to travel upon, it was held 
 to be the duty of the public to pass on 
 the other side of the street; and where 
 a person was injured in passing over 
 the dangerous walk, knowing its con- 
 dition, it was held he could not re- 
 cover. In Lovenguth v. City of Bloom- 
 ington, 71 111. 238, following the rule 
 announced in the case last cited, it 
 was held that an instruction to the 
 effect that the plaintiff was not bound 
 to travel on another sidewalk than the 
 one on which he received the injury 
 complained of, even though he knew 
 that the one on which he was injured 
 was out of repair, was properly re- 
 fused. It is there said : ' Had the 
 court given this instruction as it was 
 prepared, it would have been in effect 
 telling the jury the plaintiff's son 
 might properly pass over the sidewalk, 
 however dangerous it might be, with 
 full knowledge on his part of its dan- 
 gerous character. This is not the 
 law.' See also Bruker v. Town of 
 Covington, 69 Ind. 33; Pitts. South R. 
 C. V. Taylor, 104 Pa. St. 306; Dillon 
 on Mun. Corp. (4th ed.) sec. 1007, and 
 Wilson V. City of Charlestown, 8 
 Allen 137, where the same doctrine is 
 announced. In the case last cited it 
 is said : ' The fact that the street in 
 front of the sidewalk, and the side- 
 walk on the opposite side of the street, 
 were in such condition that they could 
 have been used safely and conven- 
 iently, which was shown, tended to 
 prove a want of care on the part of 
 the female plaintiff. It is settled that 
 if a person knows a way to be danger- 
 ous when he enters upon it, he can- 
 
432 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 222 
 
 jury to decide. So the court cannot properly charge that 
 because a plaintiff used a walk known to him to be de- 
 fective, he was guilty of contributory negligence.^ The 
 question is, upon all the circumstances of the case, did 
 the plaintiff exercise reasonable care ? And this question 
 must be decided by the jury, if there is room for more 
 than one reasonable inference from the facts. ** 
 
 not, in the exercise of ordinary pru- 
 dence, proceed and take his chance, 
 and if he shall actually sustain dam- 
 age, look to the town for indemnity.' 
 Horton V. Ipswich, 12 Gush. 488. In 
 Dillon, supra (sec. 1007), it is said 
 that the party injured must be free 
 from contributory negligence, t. e., if 
 he knew of the defect or obstruction, 
 and ought reasonably to have avoided 
 it by going outside or around it, and 
 did not, he cannot recover. 
 
 " Whether it was obligatory on 
 plaintiff to travel over one walk or the 
 other, was a question which it was not 
 the province of the court to determine 
 as a matter of law, and we think the 
 instruction was calculated to mislead 
 the jury." 
 
 ' Harris v. Clinton (Mich.), 7 West. 
 Rep. 666 (1887) ; Kelley v. Fond du 
 Lac, 31 Wis. 179; Bronson v. South- 
 bury, 37 Conn. 199; Hubbard V. Con- 
 cord, 35 N. H. 52. 
 
 ' In Roux V. Lumber Co., 85 Mich. 
 519 (1891), McGrath, J., says: "In 
 Harris v. Clinton Tp., supra, the 
 court says : ' Upon this issue there are 
 two reasonable but different views 
 which might be taken, and therefore 
 the question should have been sub- 
 mitted to the jury. The fact that 
 Sopher knew the location of the high- 
 way ; that it was crooked ; that there 
 were no guides or barriers ; that it 
 was overflowed, and the water had 
 raised since he last passed over it ; 
 
 and knew that some hazard was in- 
 curred in attempting to pass over it, 
 did not conclusively show that it was 
 negligence in him to make the at- 
 tempt. Of course, the increased 
 hazard from the rising of the water 
 called upon Sopher to exercise in- 
 creased caution, and may have been 
 a circumstance which, in the opinion 
 of some persons, should have deter- 
 mined him to not make the attempt 
 at all ; but whether it was or not, in 
 connection with the other facts, should 
 have been left with the jury to de- 
 termine.' 
 
 " When there is a chance, upon the 
 facts shown, for ordinary candid and 
 intelligent men to arrive at different 
 conclusions, the question of contribu- 
 tory negligence is to be determined 
 by the jury. Adams v. Iron Cliffs 
 Co., 78 Mich. 271 ; Luke v. Mining 
 Co., 71 Id. 364; and Teipel v. Hil- 
 sendegen, 44 Id. 461. 
 
 " This is one of those cases where 
 two reasonable and different views 
 might be taken, and two men of equal 
 candor might differ. In my judgment, 
 the court below erred in taking the case 
 from the jury, and in ruhng that as a 
 matter of law the plaintiff was guilty 
 of contributory negligence." But see 
 Fox V. Glastenbury, 29 Conn. 204. 
 
 In Columbus v. Strassner, 124 Ind. 
 482 (1890), Berkshire, C. J., says: 
 " The question of contributory negli- 
 gence, as a question of evidence, was 
 
223 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 433 
 
 § 223. Dangerous bridge. — Where the admitted facts of 
 a case show that the plaintiff knew that a bridge used by 
 him was so defective that it was dangerous to use it at 
 all, he has been held chargeable with contributory negli- 
 gence in going upon it.^ But where a bridge is merely 
 
 a controverted question, and therefore 
 a question purely of fact for the de- 
 termination of the jury. See Jung v. 
 City of Stevens Point, 43 N. W. Rep. 
 (Wis.) 513. 
 
 " In Holloviray v. City of Lockport, 
 61 N. Y. Sup. Ct. 153, the court said: 
 'The duty of the defendant was to 
 keep the streets and sidewalks, con- 
 structed under its orders and direc- 
 tions, within the city limits, in a rea- 
 sonably safe and secure condition. If 
 the plaintiff did, in fact, know of the 
 real condition of the walk before the 
 accident happened, that circumstance 
 alone does not deprive him of a right 
 of action. That circumstance, how- 
 ever, with all the other facts bearing 
 on the question, was to be considered 
 and weighed by the jury in determin- 
 ing whether the plaintiff was guilty of 
 contributory negligence. We think 
 that the jury properly disposed of that 
 question; at least the case, as pre- 
 sented by all the evidence, is such as 
 not to permit us to disturb their find- 
 ing on the question.' 
 
 " The foregoing expresses the true 
 rule as we understand it, and is in 
 accord with our own cases. See 
 Town of Gosport v. Evans, 112 Ind. 
 133; City of Fort Wayne v. Breese, 
 123 Ind. 581." 
 
 See also Alleghany County v. Broad- 
 waters, 69 Md. 533, 16 Atl. Rep. 
 223 ; Maultby v. Leavenworth, 28 
 Kas. 745 ; Templeton v. Montpelier, 
 56 Vt. 328; Bullock v. New York, 99 
 N. Y. 654 (1885). 
 
 ' In Morrison v. Shelby County, n6 
 28 
 
 Ind. 431, 19 N. E. Rep. 316 (1889), 
 Mitchell, J., says: "The supreme 
 court affirming the judgment, said : 
 ' It is now insisted that the judgment 
 of the circuit court ought to be re- 
 vised, because the finding is contrary 
 to the evidence. The record shows 
 that the plaintiff admitted that he 
 knew the condition of the bridge 
 when he drove upon it with his team, 
 and that he had knowledge that it 
 was out of repair and dangerous for 
 more than a year prior to the time 
 that his horse broke through. One 
 end of the bridge was higher than the 
 other. The northwest corner was 
 lower than the southeast corner, the 
 pillars having sunken into the ground, 
 giving the bridge a peculiar inclina- 
 tion on the sides. He knew the boards 
 were loose and travel-worn, and he 
 admitted that he had refrained from 
 using the bridge some time before the 
 accident on account of its ruinous 
 condition. It will thus be seen that 
 it fairly became a question for the 
 court trying the cause to determine 
 the question whether or not the plain- 
 tiff was guilty of contributory negli- 
 gence in venturing upon the bridge 
 with his team drawing a loaded 
 wagon, with knowledge of the condi- 
 tion of the structure. It'is quite true 
 he testified that he exercised great 
 care and caution in driving upon the 
 bridge, which he says was being used 
 by the public, and that he believed he 
 could pass over it in safety. While this 
 is true, it is also to be remembered 
 that one who voluntarily goes upon a 
 
434 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 224 
 
 unsafe in some particular, but not in danger of falling, even 
 if there was another bridge by which the plaintiff might 
 have reached his destination, the fact that he used the 
 defective bridge will not as matter of law constitute con- 
 tributory negligence.^ 
 
 § 224. What is not contributory negligence.— It is never 
 contributory negligence for a person to make a reason- 
 able use of a street or sidewalk, but what is a reasonable 
 use must depend on the location and the character of 
 the street or walk and the circumstances under which 
 a particular act is done. Traveling at night,* crossing a 
 street between the regular crossings,^ walking in the 
 
 structure, with full knowledge of its 
 dangerous condition and of the perils 
 attending the venture, will be deemed 
 to have done so at his own risk. 
 Forks Tp. V. King, 84 Pa. St. 230; 
 Wharton on Negligence, § 400. The 
 law accounts it negligence for one, 
 unless under compulsion, to cast him- 
 self upon a known peril from which a 
 prudent person might reasonably an- 
 ticipate injury. Town of Gosport v. 
 Evans, 1 12 Ind. 133 ; Railroad Co. v. 
 Pinchin, 112 Ind. 592; Riest v. City 
 of Goshen, 42 Ind. 339 ; Turnpike 
 Co. V. Baldwin, 57 Ind. 86 ; Railroad 
 Co. V. Crest, (present term).' " See 
 Dale V. Webster Co., 76 la. 370, 47 
 N. W. Rep. I. 
 
 ' See Walker v. Decatur County, 
 67 la. 307 ; Ross v. Davenport, 66 
 la. 548 ; Hunger v. Marshalltown, 59 
 la. 763 ; GuUinev. Lowell, 144 Mass, 
 491; Whitford v. Southbridge, 119 
 Mass. 564 ; Humphreys v. Armstrong 
 County, 56 Pa. 204. 
 
 " Alleghany County v. Broadwaters, 
 69 Md. 533, 16 Atl. Rep. 223 ; Stier 
 V. Oskaloosa, 41 la. 353 ; Prideaux v. 
 Mineral Point, 43 Wis. 513; Maultby 
 v. Leavenworth, 28 Kas. 745 ; Daniels 
 V. Lebanon, 58 N. H. 284. 
 
 2 In Crowther v. City of Yonkers, 
 15 N. Y. Supp. 588 (1891), Barnard, 
 P. J., says of the plaintiff: "She had 
 the right to cross the street with due 
 care at other points than the regular 
 crossings. She also had the right to 
 assume that the streets were safe. 
 She was free from contributory negli- 
 gence as matter of law, and the jury 
 were justified in finding her free from 
 contributory negligence as a matter 
 of fact. The night was very dark. 
 The plaintiff was an elderly woman. 
 The point of crossing, Nepperhan 
 avenue, was in the direct line of her 
 route home. She was found in the 
 trench so soon after leaving her son's 
 house as to prove that she went di- 
 rectly for her home until she fell in the 
 trench. The trench was invisible to 
 those who found her. The place was 
 unlighted, and it was a very public 
 thoroughfare. The action is sup- 
 ported by the cases of Johnson v. 
 Railroad Co., 20 N. Y. 65 ; Totten v. 
 Phipps, 52 N. Y. 354; Tolman v. 
 Railroad Co., 98 N. Y. 198 ; Galvin 
 V. Mayor, etc., 112 N. Y. 223, 19 N. 
 E. Rep. 675." 
 
 See Belton v. Baxter, 54 N. Y. 245, 
 13 Am. Rep. 578 (1873); Raymond v. 
 
§ 2-24 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 435 
 
 roadway itself/ running on the sidewalk,^ galloping on 
 horseback over a bridge,^ or trotting a horse over one,* 
 have all been held not to constitute contributory negli- 
 gence in themselves. And mere proof that a person 
 using a street was blind is not sufficient to make him 
 responsible for an injury that he receives on the highway.'' 
 So proof of intoxication, unless the circumstances show 
 that such intoxication contributed to the injury, will not 
 bar a recovery.^ But in a recent case in New York where 
 a jury gave a verdict against a village for injuries to the 
 plaintiff, who while intoxicated was thrown from his 
 wagon when driving with associates, it was held on ap- 
 peal that the verdict was against the weight of evidence.'' 
 
 Lowell, 60 Mass. 524 ; Coombs v. 
 Purrington, 42 Me. 332. 
 
 ' Forker v. Sandy Lake Borough, 
 130 Pa. 123 (1889); Boss V. Litton, 5 
 Cas. & P. 407 ; McLaury v. McGregor, 
 54 la. 717 ; Aurora v. Hillman, 90 111. 
 61 ; Gerald v. Boston, 108 Mass. 584 ; 
 Beach on Cont. Neg., 2d ed., § 251. 
 
 ' Noblesville Gas Light Co. v. 
 Laehr (Ind.), 24 N. E. Rep. 579, 29 
 Am. & Eng. C. C. 254. But see Du- 
 bois V. Kingston, 102 N. Y. 219 (1886). 
 
 ' Eudora v. Miller, 30 Kas. 494. 
 
 •* Weeks v. Lyndon, 54 Vt. 638. 
 Exposing oneself to danger for the 
 benefit of another is not contributory 
 negligence. Pennsylvania Co. v. Lan- 
 gendorff (Ohio), 28 N. E. Rep. 172, 44 
 Alb. L. J. 190. 
 
 ' Marion v. Skillman, 127 Ind. 130; 
 NefF V. Wellesley, 148 Mass. 487, 20 
 N. E. Rep. in; Davenport v. Ruck- 
 man; 37 N. Y. 568 ; Harris v. Uebel- 
 hoer, 75 N. Y. 169. 
 
 « Tompkins v. Oswego (N. Y.), 1 5 
 N. Y. Supp. 371 (1891) ; Lynch v. 
 New York, 47 Hun (N. Y.) 524 (1888); 
 Enright v. Atlanta, 78 Ga. 288 (1886). 
 But see McCracken v. iVIarkesan, 76 
 
 Wis. 499, 45 N. W. Rep. 323 (1890) ; 
 Alger V. Lowell, 85 Mass. 402 ; Monk 
 V. New Utrecht, 104 N. Y. 552 (1887); 
 Hubbard v. Mason City, 60 la. 400. 
 
 ' Woods V. Tipton County (Ind.), 
 27 N. E. Rep. 611. 
 
 Parris v. Green Island, 14 N. Y. 
 Supp. 703 (i 891). Mayham, J., says 
 in this case : " The next question is, 
 did the plaintiff, by his own act or 
 negligence, contribute to the injury ? 
 Or, rather, was thei'e any evidence 
 from which the jury could find that 
 he was free from contributory negli- 
 gence ? The learned counsel for the 
 appellant urges, these circumstances 
 appearing in the evidence as tending 
 affirmatively to prove contributory 
 negligence on the part of plaintiff, (i) 
 the apparent inebriated condition of 
 the plaintiff and his associates ; (2) the 
 reckless manner of driving the team 
 at the time of the injury; (3) the 
 abundance of room in the street, aside 
 from that occupied by the obstruction, 
 and the fact that the obstruction was 
 plainly visible from its size and the 
 glare of light by which it was sur- 
 rounded. 
 
436 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 225 
 
 § 225. Sunday travel. — The fact that a person who has 
 been injured on a highway was traveling upon it on Sun- 
 
 " As to the first point, — the condition 
 of the plaintiff and his associates. It 
 seems to have been settled upon 
 authority that as to whether or not 
 that constituted contributory- negli- 
 gence was a question for the jury. In 
 Healy v. Mayor, etc., 3 Hun 708, it 
 was expressly held in an action 
 brought to recover damages for in- 
 juries sustained in consequence of 
 defects existing in a sidewalk, it ap- 
 peared that the plaintiff was intoxi- 
 cated at the time of the accident ; that 
 it was for the jury, and not the court, 
 to say whether or not the intoxication 
 contributed in any degree to the injury 
 sustained. In that case the court, in 
 its opinion, pronounced by Brady, J., 
 and concurred in by Daniels, says : 
 ' The defense as suggested was the 
 intoxication of the plaintiff, but that 
 did not deprive him per se of protec- 
 tion. By putting himself in that un- 
 fortunate condition he was not aban- 
 doned by the law. He was only sub- 
 ject to its consequences, whatever 
 they might be, and if his drunkenness 
 in any way contributed to his injury 
 he must bear the burden. Whether 
 it did or not was a question of fact for 
 the jury to determine. It was for 
 them, and not for the court, to say 
 whether he was intoxicated at the 
 time of the accident, and whether, if 
 he was, it contributed in any degree 
 to the injury which he received.' The 
 same doctrine was held in the case 
 of Detchett v. Railroad Co., 5 Hun 
 165. There is no doubt that the jury 
 were authorized to take into account 
 the condition of the plaintiff and his 
 associates, and determine whether 
 they were drunk or sober, and 
 whether, if drunk, their condition con- 
 tributed to the injury complained of; 
 
 but within the above authorities they, 
 and not the court, must decide that 
 question, and the same was therefore 
 properly submitted to them. Upon 
 this question we are referred by the 
 learned counsel for the appellant to 
 the case of Monk v. Town of New 
 Utrecht, 104 N. Y. 552, 11 N. E. Rep. 
 268. But we fail to see that that case 
 in any way changed the rule laid 
 down in 3 and 5 Hun, to which we 
 have referred. The case last cited 
 turned upon the question of the 
 liability of a town to provide a guard 
 upon steep declivities from the side- 
 walks of a country road. It is true 
 that in that case the Court of Appeals 
 hold that the nonsuit was also proper 
 on the ground of the plaintiff's con- 
 tributory negligence, which, from the 
 circumstances of that case, was a 
 clear result of his intoxication. 
 
 " The next point upon this branch of 
 the case urged as contributory negli- 
 gence was the rapid driving of the 
 team at the time of the injury. The 
 plaintiff was not at the time of the 
 accident driving the team, but I think 
 it may be assumed that as between 
 him and the appellant he is entitled 
 to no immunity from that fact, as the 
 defendant owed him no duty to pro- 
 tect him against the consequences of 
 the carelessness or negligence of the 
 driver of his own selection. The 
 court, when asked to hold and charge 
 that it was negligence per se to drive 
 a horse rapidly through the street, as 
 described in this case, said : ' I would 
 not like to charge that as matter of 
 law. I think that is a question of fact 
 for the jury.' We think in that the 
 learned justice was right. The law 
 fixes no maximum rate of speed at 
 which teams attached to vehicles shall 
 
225 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 437 
 
 day, is sufficient, in Massachusetts and some of the other 
 New England States, to prevent him from recovering 
 damages from the corporation.* If, however, he is not 
 traveling on that day, he may recover,^ although it would 
 seem that any other day of the week he would have to 
 be a traveler.^ It is, therefore, the violation of the statute 
 law of the State which puts him beyond the protection 
 of the general laws imposing liability upon towns for de- 
 fective highways. In other localities* where statutes 
 
 be driven through the streets of a 
 village. What is a reasonable, pru- 
 dent, or safe rate of speed is therefore 
 a question of fact for a jury, to be 
 governed by the circumstances of the 
 case. But in this case we think the 
 jury failed to take into consideration 
 and give due weight to the evidence 
 which bore upon the question- of the 
 contributory negligence of the plaintiff 
 and his associates. The street was 
 amply sufficient in width for two or 
 more teams to be driven abreast at 
 the point of the injury, without com- 
 ingin contact with the alleged obstruc- 
 tion. It was well lighted at the point 
 where the accident occurred. The 
 conduct of the party, and the fre- 
 quency with which they were shown 
 to have imbibed intoxicating drink 
 that afternoon, raised a fair presump- 
 tion that they were more or less in- 
 toxicated, and their shouts and bois- 
 terous conduct on starting from the 
 restaurant immediately before the ac- 
 cident of this Sabbath evening went 
 far to establish a want of suitable care 
 on their part, if they did not establish 
 affirmatively contributory negligence. 
 In Dubois v. City of Kingston, where 
 the plaintiff was running to a fire in 
 the night-time, he stumbled over a 
 stepping-stone in front of a building, 
 where the walk was wide enough to 
 afford ample opportunity for pedes- 
 
 trians to pass without collision, and 
 where the street was well lighted, the 
 Court of Appeals reversed the judg- 
 ment for the plaintiff upon the verdict 
 of a jury on the ground that the plaintiff 
 was guilty of contributory negligence. 
 Dubois V. City of Kingston, 102 N. Y. 
 219, 6 N. E. Rep. 273. We think the 
 evidence of contributory negligence in 
 this case is quite as strong, if not 
 stronger, against the plaintiff than in 
 the case last cited, and that this judg- 
 ment be reversed." 
 
 ' Bosworth v. Swansey, 51 Mass. 
 363, 43 Am. Dec. 441 ; Davidson v. 
 Portland, 69 Me. 116 ; Baker v. Port- 
 land, 58 Me. 199 ; Hinckley v. Penob- 
 scott, 42 Me. 89 ; Wentworth v. Jef- 
 ferson, 60 N. H. 158. See, for other 
 decisions. Beach on Cont. Neg., 2d 
 ed., § 261, and infra, n. 4. 
 
 ' Barker v. Worcester, 139 Mass. 
 74; supra, p. 241, note. 
 
 2 Supra, §128. 
 
 * This question has been carefully 
 considered in New York, where, in 
 Platz v. Cohoes, 89 N. Y. 219 {1882), 
 Danforth, J., says : " That the street 
 was defective through the culpable 
 omission of duty on the part of the 
 defendant is not denied, but the acci- 
 dent happened on Sunday, and the 
 learned counsel for the appellant 
 claims that it owed no duty to the 
 plaintiff to keep its streets in repair 
 
438 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 225 
 
 have forbidden traveling on Sunday, it lias been held that 
 the fact that the plaintiff had violated a statute of this 
 character would not deprive him of his action. 
 
 on that day, because it did not appear 
 that she was then traveling 'either 
 from necessity or charity,' nor for any 
 purpose permitted by the law. It is 
 plain, therefore, that she was violating 
 the statute relating to the ' observance 
 of Sunday ' (i R. S. 628, title 8, chap. 
 20, art. 8, sec. 70), but we do not per- 
 ceive how that fact relieves the de- 
 fendant. 
 
 " It imposed an obligation upon the 
 plaintiff to refrain from traveling, and 
 for its violation prescribed a forfeiture 
 of one dollar. It also declares that 
 upon complaint made before a magis- 
 trate, and conviction had, that sum 
 might be collected by distress and 
 sale of the goods and chattels of the 
 offender, or if sufficient could not be 
 found, she might be ' committed to the 
 common jail for not less than one or 
 more than three days.' The statute 
 goes no further, and we are aware of 
 no principle upon which it can be held 
 that the right to maintain an action in 
 respect of special damage resulting 
 from the omissipn of a defendant to 
 perform a public duty is taken away, 
 because the person injured was at the 
 time disobeying a positive law. The 
 courts are required to construe a penal 
 statute strictly, and having before 
 him, for judgment, an alleged violation 
 of the Sunday law, Lord Mansfield 
 said : ' If the act of Parliament gives 
 authority to levy but one penalty, there 
 is an end of the question, for there is 
 no penalty at common law." Crepps 
 y. Durden, 2 Cowper 640. This was 
 a proceeding to enforce the statute, 
 but in Carroll v. Staten Island R.R. 
 Co., 58 N. Y. 126, 17 Am. Rep. 221, 
 an action by a passenger against a 
 
 carrier to recover damages for inju- 
 ries received through its carelessness, 
 this court held that the fact, ' that the 
 plaintiff was, at the time of the injury, 
 traveling contrary to the statute,' was 
 no defense to the action. The policy 
 of the statute and its limitations were 
 then considered, and the court refused 
 to add to the penalty imposed by it a 
 forfeiture of the right to indemnity for 
 an injury resulting from the defend- 
 ant's negligence. 
 
 " The Sunday law received a simi- 
 lar construction in Phila., Wil. & 
 Bait. R.R. Co. V. Phil. & Havre de 
 Grace Steam Tpwboat Co., 23 How. 
 U. S. .Sup. Ct. Rep. 209, the court 
 holding that the offender, the plaintiff 
 in the action, was liable to the fine or 
 penalty imposed thereby, and nothing 
 more, saying, ' We do not feel justi- 
 fied, therefore, on any principles of 
 justice, equity, or of public policy, in 
 inflicting an additional penalty of 
 $7,000 on the libellants, by way of set- 
 off, because their servants may have 
 been subject to a penalty of twenty 
 shillings each for breach of the stat- 
 ute.' To the same effect is Baldwin v. 
 Barney, 12 R. I. 392, 34 Am. Rep. 670. 
 
 " It may indeed be said that if the 
 plaintiff had obeyed the law, remained 
 at home, and not traveled, the accir 
 dent would not have happened. That 
 is not enough. The same obedience 
 to the law would have saved the plain- 
 tiffs in the cases just cited. It must 
 appear that the disobedience contrib- 
 uted to the accident, or that the stat- 
 ute created a right in the defendant, 
 which it could enforce. But the ob- 
 ject of the statute is the promotion of 
 public order, and not the advantage 
 
226 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 439 
 
 § 226. Improper driving. — Using a highway as a race-track 
 has been held to be contributory negligence,^ but mere 
 
 of individuals. The traveler is not de- 
 clared to be a trespasser upon the 
 street, nor was the defendant ap- 
 pointed to close it against her. In 
 such an action the fault which pre- 
 vents a recovery is one which directly 
 contributes to the accident, — as care- 
 lessness in driving either a vicious or 
 unmanageable horse or at an improp- 
 er rate of speed, or without observa- 
 tion of the road, or in an insufficient 
 vehicle, or with a defective harness, 
 or in a state of intoxication, or-under 
 some other condition of driver, horse, 
 or carriage, which may be seen to have 
 brought about the injury. 
 
 " It may doubtless be said that if 
 the plaintiff had not traveled she 
 would not have been injured, and 
 this will apply to nearly every case of 
 collision or personal injury from the 
 negligence or willful act of another. 
 Had the injured party not been 
 present he would not have been hurt. 
 But the act of travel is not one which 
 usually results in injury. It therefore 
 cannot be regarded as the immediate 
 cause of the accident, and of such only 
 the law takes notice. At common law 
 the act was not unlawful, and the 
 plaintiff was still under its protection, 
 and may resort to it against a wrong- 
 doer by whose act she was injured. 
 This has been held in many cases 
 where the person injured was at the 
 time doing an act prohibited by the 
 city ordinance or general statute 
 (Steele v. Burkhardt, 104 Mass. 59; 
 Welch V. Wesson, 6 Gray 505 ; Nor- 
 ris V. Litchfield, 35 N. H. 271), and 
 even violating the law now in ques- 
 tion or one similar to it. Carroll v. 
 
 Staten Island Co., and Phila., Wil. 
 & Bait. R.R. Co. V. Phila. & Havre 
 de Grace Towboat Co., have already 
 been referred to. See also Schmid v. 
 Humphrey, 48 la. 652, 30 Am. Rep. 
 414. 
 
 " Sutton V. The Town of Wauwa- 
 tosa, 29 Wis. 21, 9 Am. Rep. 534, is 
 in point, not only in its circumstances, 
 but in the relations of the parties. 
 The plaintiff was driving his cattle to 
 market on Sunday and they were in- 
 jured by the breaking down of a de- 
 fective bridge which the defendant, 
 through negligence, had failed prop- 
 erly to maintain. The Sunday stat- 
 ute was relied upon, but the town was 
 held liable. In this State a municipal 
 corporation is regarded as a legal en- 
 tity and responsible for its omission to 
 perform corporate duties, to the same 
 extent as a natural person would be 
 under the same circumstances. Dil- 
 lon on Munic. Corp., § 778 ; Bailey v. 
 The Mayor, 3 Hill 531. The au- 
 thorities, therefore, which deny to an 
 individual, through whose negligence 
 another has been injured, immunity 
 from the consequences of his wrong 
 because the injured person was vio- 
 lating the law in question, apply here. 
 Many of them are referred to in the 
 cases named above and need not again 
 be cited. 
 
 " There are, as the counsel for the 
 appellant contends, authorities the 
 other way. Decisions by very emi- 
 nent and learned courts : in Vermont, 
 Johnson v. Town of Irasburgh, 47 Vt. 
 28, 19 Am. Rep. in ; Holcomb v. 
 Town of Danby, 51 Vt. 428; — in 
 Massachusetts, Bosworth v. Swansey, 
 
 Supra, p. 245, n. 3. 
 
440 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 § 226 
 
 fast driving on a country road is not negligence.^ And 
 a breach of a statute will not make one guilty of con- 
 tributory negligence unless it is the proximate cause of 
 the injury.^ The defense that a person was not driving a 
 
 10 Mete. 363 ; Jones v. Andover, 10 
 Allen 18. And immunity is also 
 given by that court under the same 
 statute to a railroad corporation 
 through whose negligence the plain- 
 tiff was injured. Smith v. Boston & 
 Maine R.R., 120 Mass. 490, 21 Am. 
 Rep. 538. But the decisions already 
 made by us — Merritt v. Earle, 29 N. 
 Y. 115; Wood V. Erie Railway Co., 
 72 Id. 196, 28 Am. Rep. 125 ; Carroll 
 V. Staten Island R.R. Co., supra — are 
 in the contrary direction, and are sus- 
 tained, we think, by reasons of justice 
 and public policy. In Baldwin v. 
 Barney, supra, a question arising 
 under the Sunday laws of Massachu- 
 setts came before the court in an ac- 
 tion by one injured in that State while 
 traveling on Sunday by the reckless 
 driving of one also traveling. On the 
 trial the plaintiff was nonsuited, but 
 on appeal the Massachusetts cases 
 are reviewed and disapproved, and, 
 after a very deliberate discussion of 
 the decisions in that and other States, 
 the court held that the defendant 
 could not show the illegality of the 
 plaintiff's act as a defense, and the 
 nonsuit was set aside. There will be 
 seen great conflict in decided cases, 
 but the weight of authority seems to 
 favor the conclusion already reached 
 by us. Cooley on Torts, § 157; 
 Wharton on Negligence, §331." 
 
 See also Loeb v. Attica, 82 Ind. 175, 
 42 Am. Rep. 494 ; Sharp v. Evergreen 
 Tp., 67 Mich. 443 ; Mc Avoy v. Knox- 
 ville, 85 Tenn. 19; Browne's Humor- 
 ous Phases of the Law, p. 14. 
 
 ' Denman v. Johnston (Mich.), 48 
 N. W. Rep. 565 ; Parris v. Green 
 
 Island, 14 N. Y. Supp. 703 (1891). 
 See Broschart v. Tuttle, 59 Conn, i, 
 II L. R. A. 33. 
 
 ' Neanow v. Uttech, 46 Wis. Rep. 
 581 (1879), Orton, J.: "It is quite 
 immaterial whether either or both of 
 the parties were guilty of the viola- 
 tion of the statute in respect to the 
 use of streets, or of any other law or 
 duty _at the time, if such violation in 
 itself did not produce, or directly con- 
 tribute to produce, the injury. In 
 respect to the relative rights of per- 
 sons meeting and passing each other 
 on the highway, which are more 
 clearly defined in such case than 
 when passing each other in the same 
 direction, the law is well settled that 
 a person cannot stubbornly and dog- 
 gedly stand or insist upon his legal 
 rights of the road, even against an- 
 other person violating such rights, 
 and wantonly produce a collision 
 which a slight change of position 
 would have avoided. O'Mallery v. 
 Dorn, 7 Wis. 236. 
 
 " If a party be found with his vehi- 
 cle upon the half of the road to which 
 he has not the right, another in pass- 
 ing, or attempting to pass, cannot 
 carelessly or imprudently rush upon 
 him or his vehicle ; ' and if such at- 
 tempt would not be thus reasonably 
 safe and prudent, it is his duty to delay 
 and seek redress by action for any 
 injury sustained by the detention.' 
 Brooks V. Hart, 14 N. H. 307. 
 
 " The true rule in such cases is laid 
 down in Sutton v. The Town of Wau- 
 watosa, 29 Wis. 21, by the late Chief- 
 Justice Dixon, in a very able and 
 elaborate discussion of the question. 
 
§§ 22 7, 228 CONTRIBUTORY NEGLIGENCE. 44 1 
 
 suitable horse is sometimes interposed wiien accidents 
 occur from the frightening of horses by objects in the 
 highway or from a collision between a runaway horse 
 and some obstruction in the way. It is, however, suf- 
 ficient to defeat the action only when the horse was in 
 fact unsuitable for use on a public street and when the 
 damage was the proximate cause of such unsuitableness.' 
 
 § 227. Deviation from the highway. — If the plaintiff 
 strays from the highway for his own pleasure or accom- 
 modation, or for the purpose of entering a private way, 
 he cannot recover from the corporation in charge of the 
 highway.'^ Streets, sidewalks, and bridges are maintained 
 for those using them in the ordinary manner, and there 
 is no obligation upon municipalities to keep them in con- 
 dition for those who wander away from the path of 
 travel.^ 
 
 § 228. Whether there is contributory negligence usually 
 for jury. — Upon the whole issue, whether the plaintiff has 
 been negligent in such a manner that the damage has 
 
 whether the unlawful act of the plain- port in respect to the unlawful act of 
 
 tiff, without negligence, will defeat the plaintiff as being the cause of the 
 
 his right of recovery for an injury injury. ' Ordinarily that condition is 
 
 caused by the negligence of the de- usually termed the cause, whose share 
 
 fendant. ' To make good the defense in the matter is the most conspicuous, 
 
 on this ground, it must appear that a and is the most immediately preced- 
 
 relation existed between the act and ing and proximate to the event.' 
 
 violation of law on the part of the See also McArthur v. The Green Bay 
 
 plaintiff, and the injury or accident of & Miss. Canal Co., 34 Wis. 139." 
 
 which he complahis, and that relation See Arey v. Newton, 148 Mass. 598 
 
 must have been such as to have (1889). 
 
 caused, or helped to cause, the injury ' See supra, % 84. See also Wright 
 
 or accident, not in a remote or specu- v. Templeton, 132 Mass. 49 ; Judd v. 
 
 lative sense, but in the natural and Claremont, 23 Atl. Rep. 426 (1891). 
 ordinary course of events, as one "^ See Beach on Cont. Neg., 2d ed., 
 
 event is known to precede or follow § 252 ; Fisher v. Cambridge, 57 Hun 
 
 another.' The language of Chief- (N. Y.) 296 ; Carter v. Towne, 103 
 
 Justice Appleton, in Moulton v. San- Mass. 407. 
 ford, 51 Me. 134, is of the same im- ' Supra, §§ 83, 96. 
 
442 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 §221 
 
 resulted from his own carelessness, is usually for the jury. 
 It is only when but one reasonable inference can be drawi 
 from the facts proved, that the court should decide th( 
 question.* If the facts are such that it would be impos 
 
 ' See authorities cited supra, § 222; 
 infra, n. 2. Shearman & Redfield on 
 Neg., § 53 ; Beach on Cont. Nag., 
 2d ed., § 444 et seq. 
 
 See also Wakeham v. St. Clair, 51 
 N. W. Rep. 696 (1892) ; Embler v. 
 Wallkill,43 N. Y. St. Rep. 631 (1892) 
 Hart V. Red Cedar, 63 Wis. 634 
 Niven v. Rochester, 76 N. Y. 619 
 Daniels v. Lebanon, 58 N. H. 284 
 Ponca V. Crawford, 23 Neb. 662, 8 
 Am. St. Rep. 144. 
 
 ^ Washington, etc. Railroad v. Mc- 
 Dade, 135 U. S. 554 ; Hunter v. Coo- 
 perstown, etc. Railroad Co., 126 N.Y. 
 18(1891); Chicago V. McLean, 133 
 111. 148 ; Spaulding v. Jarvis, 32 Hun 
 (N. Y.) 621 ; Magee v. West End 
 Street Ry. Co., 151 Ma.ss. 240 ; Brad- 
 ford City V. Downs, 126 Pa. 622 
 (1889) ; Plymouth Tp. v. Graver, 125 
 Pa. 24 (1889) ; Scranton City v. Gore, 
 124 Pa. 595 ; Engel v. Smith, 82 Mich. 
 I (1890); Mayor V. McCary, 84 Ala. 
 469 ; Talbot v. Taunton, 140 Mass. 
 552 ; Montgomery v. Wright, 72 Ala. 
 411 ; Indianapolis v. Cook, 99 Ind. 10. 
 
 In Carr v. Easton (Pa.), 21 Atl. Rep. 
 822 (1891), Mitchell, J., says: "We 
 have, then, the sole remaining ques- 
 tion whether there was contributory 
 negligence on the part of Mrs. Carr 
 herself, so clearly shown by the evi- 
 dence that the court was right in decid- 
 ing it as a question of law, and direct- 
 ing a verdict for the defendant. It is 
 entirely settled that this may be done 
 in a clear case, but in a clear case 
 only. Two recent decisions of this 
 court are relied upon to support the 
 present ruling. In Crescent Tp. v. 
 Anderson, 114 Pa. St. 643, 8 Atl. 
 
 Rep. 379, there was a gully or sma 
 ravine across the public road, ove 
 which travelers ordinarily crossed b 
 a bridge. Plaintiff, driving with he 
 father, found the bridge impassable 
 the flooring having been torn up fo 
 repair, and her father then drov 
 through the ravine at the side of th 
 bridge, and in so doing the spring 
 catch of the wagon-seat broke, am 
 plaintiff was thrown out and injurec 
 It was held that though the plaintil 
 was not affected by the negligence c 
 the driver, yet, as she had voluntaril 
 joined him in testing a patent dangei 
 she was barred as matter of law b 
 her own contributory negligence, i 
 closely analogous case is Dean \ 
 Railroad Co., 129 Pa. St. 514, 18 At 
 Rep. 718, where the same rule wa 
 applied to the plaintiff, who, ridin 
 with a neighbor in the latter's wagor 
 neither stopped, looked, nor listene 
 nor requested the driver to do so, £ 
 a railroad crossing with which he wa 
 familiar. The essential point in thes 
 cases was the patent character of th 
 danger, and in the latter, in additiot 
 the violation of a fixed rule of law a 
 to the duty of travelers in crossing 
 railroad, thus constituting clear legi 
 negligence. This is the distinctio 
 between these cases and Borough ( 
 Carlisle v. Brisbane, supra; and als 
 between the latter and Erie v. Magi! 
 101 Pa. St. 616 ; Railroad Co. 
 Taylor, 104 Pa. St. 306 ; Dehnhan 
 V. Philadelphia, 15 Wkly. Notes Ca 
 214 ; Fleming v. Lock Haven, Id. 21 
 and others of the same class, whe: 
 the danger was either patent, or tl 
 plaintiff had knowledge or warning 
 
§ 228 
 
 CONTRIBUTORY NEGLIGENCE. 
 
 443 
 
 sible for a jury to arrive rightly at more than one con- 
 clusion, then the court may dispose of the case, but not 
 otherwise.^ Slight evidence will be sufficient to take the 
 case to the jury, however ; and in one case, where a boy 
 fell through a hole in a bridge, the character of the defect, 
 his age, and the fact that there was machinery in motion 
 near by which might have attracted his attention, were 
 held sufficient to require the submission to the jury of 
 the question whether there was contributory negligence.^ 
 
 it beforehand. In the present case 
 we are unable to say that the circum- 
 stances proved were such as to estab- 
 lish any fixed standard of prudent con- 
 duct from which Mrs. Carr departed. 
 It was not shown that she was in- 
 formed of the condition of this par- 
 ticular street. All of the streets, as 
 she testifies, were covered with deep 
 snow, and while the special ruts or 
 gutters, caused by the digging out of 
 the snow and ice down to the car 
 tracks, were visible to her, it is not 
 clear that they did or necessarily 
 ought to have conveyed to her mind 
 the idea of danger. She saw other 
 teams using the street; her own drove 
 a considerable distance in it before the 
 accident, and she may have thought, 
 as her driver Adams says he did, that 
 ' there were other teams turned out, 
 and we thought we could turn out just 
 as well.' She was a woman, not 
 shown to have any special knowledge 
 of driving or horses or sleighs, who 
 had trusted herself to the guidance of 
 her brother-in-law and his friend; and 
 we cannot say, as matter of law, that 
 the danger was so apparent or so 
 serious that she was called upon to 
 exercise her own judgment in opposi- 
 tion to theirs. All these matters are 
 for the jury to decide, upon their view 
 of reasonable care and prudent con- 
 duct, under the circumstances shown 
 by the evidence." 
 
 ' In Smith v. Central Railroad, etc. 
 Co., 82 Ga. 801(1888), Bleckley, Chief- 
 Justice, says : " From these facts no 
 enlightened, unbiased jury could 
 rightly draw any inference other than 
 that he was grossly negligent, and 
 that by the exercise of any reasonable 
 diligence whatever, he could and 
 should have avoided injury. When it 
 would be impossible for a jury rightly 
 to arrive at but one conclusion, the 
 court is not bound to take the opinion 
 of a jury, even upon a question of 
 negligence. When they are consulted, 
 they are the sole and exclusive judges, 
 as has been held in many cases, not- 
 ably in Richmond & Danville Railroad 
 V. Howard, 79 Ga. 44, and Killan v. 
 Railroad Co., Id. 236. But this rule 
 does not mean that the court cannot 
 adjudicate as a question of law, on a 
 motion for a nonsuit, that there is 
 nothing for the jury to try. In ad- 
 judicating motions for nonsuit, a court 
 must necessarily have the same power 
 over questions of negligence as over 
 other questions of fact. Otherwise, 
 cases of this character would be so 
 exceptional that they would have to 
 be submitted to a jury, however de- 
 ficient the evidence might be. The 
 law of nonsuit, as to them, would be 
 a nullity." 
 
 ' Strong V. Stevens Point, 62 Wis. 
 255 (1885). See infra, % 241. 
 
444 CONTRIBUTORY NEGLIGENCE. § 2 28 
 
 And on the other hand, if, under the circumstances pre- 
 sented, it is reasonable in any view of them to conclude 
 that the plaintiff was exercising due care, he is entitled 
 to have the case go to the jury,^ 
 
 ' See Parish v. Eden, 62 Wis. 272 (1885) ; and infra, % 241. 
 
CHAPTER XXIV. 
 
 EVIDENCE. 
 
 § 229. Questions of practice and pleading local. 
 
 230. General features of the plaintiffs case. 
 
 231. Proof that damage is proximate cause of defendant's negligence. 
 
 232. Necessity of distinguishing inquiries. 
 
 233. Two propositions settled by weight of authority. 
 
 234. Recent English authority. 
 
 235. United States Supreme Court decisions. 
 
 236. Other authorities holding burden is on defendant. 
 
 237. Plaintiff must exclude his own negligence as a proximate cause. 
 
 238. Burden on plaintiff in some localities. 
 
 239. Rule in New York. 
 
 240. Divergence in facts accountable for various rulings. 
 
 241. Functions of judge and jury. 
 
 242. Proof of similar accidents. 
 
 243. Proof of repairs after accident. 
 
 244. Proof of condition elsewhere. 
 
 245. Defendant's case. 
 
 § 229. Questions of practice and pleading local. — Ques- 
 tions relating to matters of practice are so essentially local 
 that it is not deemed expedient to enter into any discussion 
 of them in this place. Many matters of this character 
 in reference to procedure in cases relating to accidents 
 upon highways in New York State have been hereto- 
 fore collected, and the questions arising in the different lo- 
 calities are considered in works upon practice.^ For the 
 same reasons no attempt is made to discuss questions 
 arising upon methods or forms of pleading. The law 
 
 Morrill on City Negligence, p. 168 et seq. 
 
446 
 
 EVIDENCE. 
 
 § 230 
 
 of the forum must control upon these questions, and the 
 code or general rules of pleading in the State wherein the 
 action is brought or defended must be followed. 
 
 § 230. General features of the plaintiff's case.— A few 
 remarks on the general features of the plaintiff's case, 
 however, may not be out of place, although relating to 
 any action brought against a municipal corporation for 
 negligence. 
 
 The ground of his action in all such cases is the negli- 
 gence of the corporation, and this must be established by 
 competent proof.^ The fact that an accident has hap- 
 pened is not ordinarily sufficient to charge any one with 
 negligence.^ The nature of the occurrence and the cir- 
 cumstances surrounding it may sometimes furnish suffi- 
 cient evidence of the negligence of the defendant,^ but in 
 
 ' In Shearman and Redfield on Neg., 
 § 57, it is said : " In an action founded 
 upon negligence, the burden of proof 
 of course rests upon the plaintiff; but 
 he is not bound to establish his case 
 beyond a reasonable doubt. The 
 burden of proof remains upon plaintiff 
 throughout the trial," citing authori- 
 ties. See Am. and Eng. Encyc. of 
 Law, vol. 1 6, p. 462. 
 
 5 See Bahr v. Lombard, 53 N. J. L. 
 233, 21 Atl. Rep. 190 ; Richmond, etc. 
 C. R. Co. V. Yeamans, 86 Va. 860, 12 
 S. E. Rep. 946 ; Jacksonville, etc. R. 
 Co. V. Peninsular, etc. Mfg. Co. (Fla.), 
 9 So. Rep. 661 ; Cosulich v. Standard 
 Oil Co., 122 N. Y. 118 (1890); Hunt 
 V. New York, 109 N. Y. 134 ; Kuebler 
 V. New York, 15 N. Y. Supp. 187 
 (1891); Volkmar v. Railway Co., 58 
 N. Y. Super. Ct. 125 (1890) ; Huff v. 
 Austin, 46 Ohio St. 389 (1889). 
 
 ' Hart V. Hudson River Bridge Co., 
 80 N. Y. 622. In Cummings v. Na- 
 tional Furnace Co., 60 Wis. 603 
 (1884), Taylor, J., said: "This rule. 
 
 that an accident may be of such a 
 nature as to raise a presumption of 
 negligence, is fully sustained by the 
 following authorities cited by the 
 learned counsel for the respondent in 
 their brief: Mullen v. St. John, 57 N. 
 Y. 567 ; Lyons v. Rosenthal, 1 1 Hun 
 46 ; Kearny v. L. B. & S. C. Ry. Co., 
 L. R. 52 B. 411, and L. R. 62 B. 759; 
 Scott v. L. & St. K. Docks Co., 3 
 Hurl. & C. 596 ; Byrne v. Boadle, 2 
 Hurl. & C. 722 ; Brigges v. Olson, 4 
 Hurl. & C. 403 ; Edgerton v. N. Y. 
 & H. R.R. Co., 39 N. Y. 227 ; Kirst 
 v. M., L. S. & W. Ry. Co., 46 Wis. 
 489. In Scott v. L. & St. K. Docks 
 Co., supra, the court lays down the 
 following rule : ' In an action for per- 
 sonal injury caused by the alleged 
 negligence of the defendant, the plain- 
 tiff must adduce reasonable evidence 
 of negligence to warrant the judge in 
 leaving the case to the jury ; but when 
 the thing is shown to be under the 
 management of the defendant or his 
 servants, and the accident is such as, 
 
§231 EVIDENCE. 447 
 
 some manner the court must be able to find in the plain- 
 tiff's case proper evidence upon which it may base a rea- 
 sonable inference that the defendant has been negligent. 
 In order to establish this fact, it must appear that a legal 
 duty to the plaintiff has been violated in that the defend- 
 ant has acted without exercising reasonable^care in refer- 
 ence to its own work, or that it has failed to act when 
 the exercise of reasonable care would require it to take 
 some action for the protection of others.* The evidence 
 which shows the circumstances of the accident will dis- 
 close whether specific proof of notice, actual or construct- 
 ive, is necessary. Beyond the essential matters of estab- 
 lishing that the defendant has been negligent and has 
 violated a duty due him, the plaintiff must also show 
 a compliance with any local statutes providing for the 
 filing of a notice of injury within a specified time and in 
 a particular place,^ and that damage has resulted to the 
 plaintiff which is justly attributable to the negligence 
 shown.^ 
 
 § 231. Proof that damage is proximate cause of defend- 
 ant's negligence. — The plaintiff is not only required to 
 show that the defendant has been negligent, and that 
 the person in whose behalf the action is brought 
 has suffered damage, but he must go further and show 
 that the negligence proven has caused the damage re- 
 
 in the ordinary course of things, does (1884) ; Smith v. St. Paul City Ry. 
 
 not happen if those who have the man- Co., 32 Minn. I, 50 Am. Rep. 550 
 
 agement use proper care, it affords (1884), note, 
 
 reasonable evidence in the absence of ' See supra, §§ 8, 73. 
 
 explanation by the defendant, that the ^ Supra, §138. See Morrill on 
 
 accident arose from want of care.' City Neg., p. iT^etseq. 
 
 The rule laid down in this case is ' See generally, Am. & Eng. Encyc. 
 
 fully sustained by the cases above of Law, vol. 16, p. 476; Shearman and 
 
 cited, and it was cited and approved Redfield on Neg., § 57 ; Whittaker's 
 
 by this court in the case of Kirst v. Smith on Neg., p. 472. Infra, Chap. 
 
 M., L. S. & W. R'y Co., 46 Wis. 489." XXV. 
 See Alpern v. Churchill, 53 Mich. 607 
 
448 EVIDENCE. § 232 
 
 ceived.i -phis is a general rule, and one in principle 
 unquestioned everywhere. It merely asserts the propo- 
 sition that the plaintiff must bring evidence to show 
 that the defendant is responsible for the injury on 
 account of which the action is brought, and it is clear 
 that if he is not so responsible, there is no propriety in 
 bringing the action. 
 
 It is, however, in relation to this rule and the principle 
 that where the plaintiffs own negligence is the proximate 
 cause of the injury he cannot recover, that there exists 
 much uncertainty in the law on the question : who has the 
 burden of proof of contributory negligence ? And it is 
 believed that, primarily, because sufficient attention has 
 not been given to the fact, that the question of the ne- 
 cessity of proof of the proximate cause of the injury is 
 involved that the cases are not clearer and more satisfac- 
 tory upon the subject. 
 
 § 232. Necessity of distinguishing inquiries. — Two in- 
 quiries, essentially different, are involved in determining 
 where this burden of proof rests. For one relates to the 
 necessity of the full establishment of the plaintifi's claim 
 for damages on account of wrong done to him, and the 
 other concerns the propriety of requiring the defendant 
 to take the burden of proof upon a matter with which he 
 is concerned as a means of defeating the claim presented. 
 And were it not for the fact that it is usually impossible 
 for a plaintiff to present a case without having the ques- 
 tion of contributory negligence brought out, there would 
 probably be no difference of opinion in regard to the jus- 
 tice of holding each party to the proof of his own case. 
 But as, in the course of a trial, the plaintiff attempts to 
 
 ' See supra, %\ 8, 88, 142. Mass. 401 ; Philadelphia, etc. R. Co. 
 
 See also Shearman & Redfield on v. Boyer, 97 Pa. 91 ; Holbrook v. 
 Neg., §57; Priest v. Nichols, 116 Utica, etc. R. Co., 13 N. Y. 236. 
 
§ 233 EVIDENCE. 449 
 
 show that the defendant's negligence has occasioned the 
 damage to him, and as he discloses the circumstances of the 
 injury, the question of the plaintiff's conduct necessarily 
 arises and becomes involved in his own case. 
 
 It should be remembered, however, that the reason 
 why it is essential to his case to prove that he was free 
 from fault, is because if he shows that the damage has re- 
 sulted from this fault of his own, or if he shows that it 
 may have resulted either from the defendant's negligence 
 or from his own fault, he has not made out his case against 
 the defendant. It is not so much what the law presumes 
 in regard to his conduct as it is what the proof shows. 
 If an accident happens by which a person loses his life, 
 the law makes no guess about the occurrence. It looks 
 for evidence, and if it can find none, it holds no one re- 
 sponsible. So if an injury is received by one who falls 
 into an excavation in the highway, and there is no evi- 
 dence from which an inference of fact that the plaintiff 
 was not driving carelessly can be derived, there is a lack 
 of proof to show that the defendant's neglect has caused 
 the injury. And there is no propriety in using the pre- 
 sumption that plaintiff has been careful, to overthrow the 
 presumption that the defendant is innocent of the charge 
 against him. Therefore, to prove his own case, fre- 
 quently a plaintiff in the first instance must show that 
 he has exercised due care. But if he can establish his 
 case without evidence on this poinc, he may do so, and 
 the fairer rule would seem to be to make it the duty of 
 the defendant to take the burden of proof in all cases 
 after the plaintiff has once established a prima facie 
 case. 
 
 § 233. Two propositions settled by weight of authority. — 
 It is believed that the foregoing assertions are supported 
 by the weight of recent authority, and that they are sub- 
 
 29 
 
450 EVIDENCE. § 234 
 
 stantially embodied in the two propositions as follows: 
 First, contributory negligence is essentially a defense, 
 and the burden of proving it, by the preponderance of 
 evidence upon the whole case, is on the defendant. 
 Second, the plaintiff to make a prima facie case must 
 show that his damage was caused by the defendant's neg- 
 ligence, and the facts and circumstances of his own case 
 must negative his contributory negligence as a proximate 
 cause of the damage. 
 
 § 234. Recent English authority. — In a case^ decided in 
 1886 this question was under consideration by the 
 House of Lords, and in reference to it, Lord Watson, 
 delivering an opinion concurred in by Lord Blackburn, 
 said : 
 
 " I am of opinion that the onus of proving affirmatively 
 that there was contributory negligence on the part of the 
 person injured rests, in the first instance, upon the de- 
 fendants, and that in the absence of evidence tending to 
 that conclusion, the plaintiff is not bound to prove the 
 negative in order to entitle her to a verdict in her favor. 
 That opinion was expressed by Lord Hatherley and Lord 
 Penzance in the Dublin, Wicklow, and Wexford Rail- 
 way Company v. Slattery.^ I agree with these noble 
 Lords in thinking that, whether the question of such con- 
 tributory negligence arises on a plea of ' not guilty,' or, is 
 made the subject of a counter issue, it is substantially a 
 matter of defense, and I do not find that the other noble 
 Lords, who took part in the decision of Slattery's case, 
 said anything to the contrary. In expressing my own 
 opinion, I have added the words ' in the first instance ' 
 because in the course of the trial the onus may be shifted 
 to the plaintiff so as to justify a finding in the defend- 
 
 1 Wakelin v. London and South ' 3 App. Cas. 1169, 1180. 
 Western Ry. Co., L. R. 12 App. Cas. 
 41. 
 
§235 EVIDENCE. 45 1 
 
 ant's favor to which they would not otherwise have been 
 entitled. 
 
 " The difficulty of dealing with the question of onus in 
 cases like the present arises from the fact that in most 
 cases it is well-nigh impossible for the plaintiff to lay his 
 evidence before a jury or the court without disclosing 
 circumstances which either point to or tend to rebut the 
 conclusion that the injured party was guilty of contribu- 
 tory negligence. If the plaintiff's evidence were suffi- 
 cient to show that the negligence of the defendants did 
 materially contribute to the injury, and threw no light 
 upon the question of the injured party's negligence, then 
 I should be of opinion that, in the absence of any 
 counter-evidence from the defendants, it ought to be 
 presumed that, in point of fact, there was no such con- 
 tributory negligence. Even if the plaintiff's evidence did 
 disclose facts and circumstances bearing upon that ques- 
 tion, which were neither sufficient per se to prove such 
 contributory negligence, nor to cast the onus of disprov- 
 ing it on the plaintiff, I should remain of the same opin- 
 ion. Of course a plaintiff who comes into court with an 
 unfounded action may have to submit to the inconven- 
 ience of having his adversary's defense proved by his own 
 witnesses ; but that cannot affect the question upon whom 
 the onus lies in the first instance. As Lord Hatherley 
 said in Dublin, Wicklow, and Wexford Railway Com- 
 pany V. Slattery,^ 'If such contributory negligence be 
 admitted by the plaintiff, or be proved by the plaintiff's 
 witnesses while establishing negligence against the de- 
 fendants, I do not think there is anything left for the jury 
 to decide, there being no contest of fact.' " 
 
 § 235. United States Supreme Court decisions.— The de- 
 cisions of the United States Supreme Court have been 
 
 ' 3 App. Cas. 1 169. 
 
452 
 
 EVIDENCE. 
 
 unswerving upon this question, and in a recent case whe 
 exception had been taken to an instruction given to tl 
 jury at the trial, that " The burden of proof is, howeve 
 upon the defendant to show that the plaintiff w 
 negligent and that his negligence contributed to the h 
 jury," the court said the charge of the judge was "in a 
 cord with the uniform course of decision in this court,' 
 In an earlier case, however, the court recognized the di 
 ficulty encountered when the plaintiff's own evidence di 
 closed contributory negligence and held that he must r 
 move the presumption of negligence which came froi 
 his own case.* 
 
 ' Inland & Seaboard Coasting Co. 
 V. Tolson, 139 U. S. 551 (1891). See 
 also Northern Pacific Railroad v. 
 Mares, 123 U. S. 710; Hough v. 
 Railway Co., 100 U. S. 213. 
 
 In Railroad Company v. Gladmon, 
 15 Wall. (U. S.) 401 (1872), Mr. Jus- 
 tice Hunt says : " Sufficient proof 
 was given to establish the negligence 
 of the driver of the car, and no point 
 is raised on that branch of the case. 
 
 " The alleged errors arise from re- 
 fusals to give certain instructions 
 upon the effect of the conduct of the 
 child, and of the charge as actually 
 made on that subject. The first 
 prayer for instructions is stated in the 
 record in the words following: 
 
 " ' If the jury find from the evidence 
 that the plaintiffs injuries resulted 
 from his attempting to cross a street 
 in front of an approaching car, driven 
 by an agent of defendants, the burden 
 of proof is on the plaintiff to show af- 
 firmatively, not only the want of or- 
 dinary care and caution on the part 
 of the driver, but the exercise of due 
 care and caution on his own part; 
 and if the jury find from the evidence 
 that the negligence or want of due 
 care or caution of the plaintiff caused 
 the accident, or even contributed to 
 
 it, or that it could have been avoid 
 by the exercise of due care on his ov 
 part,,then the plaintiff is not entitl 
 to recover, whether the driver of t 
 car was guilty of negligence or m 
 but the jury must find for defendar 
 
 " As applied to aduU parties, t 
 first branch of this proposition is n 
 correct. While it is true that the a 
 sence of reasonable care and cautic 
 on the part of one seeking to recov 
 for an injury so received, will preve 
 a recovery, it is not correct to s 
 that it is incumbent upon him to pro 
 such care and caution. The want 
 such care, or contributory negligeni 
 as it is termed, is a defense to 
 proved by the other side. 
 
 " The plaintiff may establish t 
 negligence of the defendant, his O' 
 injury in consequence thereof, and ! 
 case is made out. If there are c 
 cumstances which convict him 
 concurring negligence, the defend; 
 must prove them, and thus defeat 1 
 action. Irrespectiveof statute law 
 the subject, the burden of proof 
 that point does not rest upon 1 
 plaintiff." 
 
 ' Indianapolis, etc. Railroad 
 Horst, 93 U. S. 291 (1876). 
 
§236 
 
 EVIDENCE. 
 
 453 
 
 § 236. Other authorities holding burden is on defendant. — 
 There have been many recent cases in which this subject 
 has been unde.r discussion, and the weight of authority, 
 taking into consideration the positions of the highest 
 courts of England and of this country, is believed to be 
 clearly with the rule that the burden of showing this de- 
 fense, upon the whole issue, is on the defendant.^ Most 
 
 ' Gill V. Horringhausen, 48 N. W. 
 Rep. 862 (1891); Phillips V. Milwau- 
 kee, etc. R. Co., 77 Wis. 349, 46 N. 
 W. Rep. 545, 9 L. R. A. 521 ; Hoye v. 
 Railroad Co., 67 Wis. 1 5, 29 N. W. 
 Rep. 646; Leggett v. Western, etc. 
 R. Co., 21 Atl. Rep. 996 ; Central R. 
 Co. V. Smith, 21 Atl. Rep. 706 ; Geor- 
 gia Pac. Ry. V, Davis (Ala.), 9 So. 
 Rep. 252 (1891); North Birmingham 
 St. R. Co. V. Calderwood, 89 Ala. 
 247, 7 So. Rep. 360 ; Durrell v. John- 
 son (Neb.), 48 N. W. Rep. 890 (1891); 
 Lincoln v. Walker, 18 Neb. 244, 20 
 N. W. Rep. 113; Sanders v. Reister 
 (Dak.), 46 N. W. Rep. 680 ; Comer 
 V. Consolidated Coal & Min. Co., 34 
 W. Va. 533, 12 S. E. Rep. 476; St. 
 Louis, etc. Ry. Co. v. Weaver, 35 
 Kas. 412, II Pac. Rep. 408; Hobson 
 V. New Mexico, etc. R. Co. (Ariz.), 1 1 
 Pac. Rep. 545 ; Griffith v. Baltimore, 
 etc. R. Co., 44 Fed. Rep. 574; 
 Mackey v. Baltimore, etc. R. Co. 
 (D. C), 18 Wash. L. Rep. 767 ; King- 
 ston V. Gibbons (Pa.), 9 East. Rep. 
 781 (i886). In Mitchell v. Clinton, 
 99 Mo. 153, 12 S.W. Rep. 817 (1889), 
 Brace, J., said : " Contributory neg- 
 ligence is a defense to be pleaded and 
 proven by defendant ; it is not neces- 
 sary that its absence should be plead- 
 ed or shown by the plaintiff in the 
 first instance. Buesching v. St. 
 Louis Gas Light Co., 73 Mo. 220; 
 Parsons v. Railroad, 94 Mo. 286." 
 See also Murray v. Missouri Pac. Ry. 
 Co., loi Mo. 236, 13 S. W. Rep. 817 
 
 (1890); Moberly v. Railway Co., 98 
 Mo. 183, II S. W. Rep. 569; Meyers 
 V. Kansas City, 18 S. W. Rep. 914 
 (1892). In L. & N. R. Co. V. Yniesta, 
 21 Fla. 700, it was said : " Contribu- 
 tory negligence is a matter of defense 
 to be pleaded and proved by the de- 
 fendant, but with the qualification 
 that if it appears from the plaintiff's 
 own evidence in support of his cause 
 of action that a presumption of con- 
 tributory negligence is fairly inferable 
 from the evidence the burden of proof 
 is shifted and it becomes incumbent 
 on the plaintiff to remove such pre- 
 sumption ; 35 Ohio St. 627." 
 
 In Te.xas, etc. Ry. Co. v. Orr, 46 
 Ark. 182, it was said : " If the plain- 
 tiff, in any case of personal injury, 
 can show negligence upon the part 
 of defendant, without, at the same 
 time, disclosing the inherent weak- 
 ness of his own case by reason of 
 contributory negligence, then such 
 contributory negligence is a matter of 
 defense — in confession and avoidance 
 — affirmative in its character, and the 
 burden is upon the defendant to es- 
 tablish the defense by a preponder- 
 ance of testimony, as in all other 
 affirmative defenses of like nature." 
 
 This is also now the rule in a ma- 
 jority of the States, and it is supported 
 by most text writers. See Am. & 
 Eng. Encyc. of Law, vol. 4, p. 91 ; 
 Thompson on Neg., p. 1175; Shear- 
 man & Redfield on Neg., 4th ed., 
 §§ 108, 109 ; Wharton on Neg., § 423 ; 
 
454 EVIDENCE. § 23 
 
 of the courts where the contrary rule is held have bee 
 led to take the position advocated by them by the coi 
 sideration that the plaintiff must negative any inferenc 
 from the facts that his carelessness brought about th 
 injury, and this position is not inconsistent with the rul 
 now under consideration. 
 
 § 237. Plaintiff must exclude his own negligence as 
 proximate cause. — In proving his prima facie case it i 
 not requiring more than is reasonable to insist that 
 plaintiff must exclude his own negligence as a cause o 
 the injury. If he makes a case without touching upoi 
 this question he does exclude it, for the evidence in ; 
 case of this character indicates that the defendant's negli 
 gence was the cause of the injury. And if his own fact 
 and circumstances raise a presumption of his own care 
 lessness, it is no hardship to require him to rebut the in 
 ference from them. That he must do this is a ruli 
 asserted in many courts. Thus in the English cas( 
 already referred to, the Lord Chancellor said : " It is in 
 cumbent upon the plaintiff in this case to establish bj 
 proof that her husband's death has been caused by som( 
 negligence of the defendants, some negligent act, o: 
 some negligent omission, to which the injury complainec 
 of in this case, the death of the husband, is attributable 
 That is the fact to be proved. If that fact is not provec 
 the plaintiff fails, and if in the absence of direct proo: 
 the circumstances which are established are equally con 
 sistent with the allegation of the plaintiff as with the de 
 nial of the defendants, the plaintiff fails, for the ver) 
 simple reason that the plaintiff is bound to establish th( 
 affirmative of the proposition : ' Ei qui affirmat non e. 
 
 Redfield on Railways, vol. 2, p. 253 ; criticised in Beach on Cent. Neg., 21 
 Notes, 28 Am. Rep. 563; 62 Am. ed., § 417 «/ j^^. 
 Dec. 686. The rule is, however, 
 
§ 237 EVIDENCE. 455 
 
 qui negat incumbit probatio.' I am not certain that it 
 will not be found that the question of onus of proof and 
 of what onus of proof the plaintiff undertook, with which 
 the Court of Appeal has dealt so much at large, is not 
 rather a question of subtlety of language than a question 
 of law. 
 
 " If the simple proposition with which I started is 
 accurate, it is manifest that the plaintiff, who gives evi- 
 dence of a state of facts which is equally consistent with 
 the wrong of which she complains having been caused 
 by — in this sense that it could not have occurred without 
 — her husband's own negligence as by the negligence of 
 the defendants, does not prove that it was caused by the 
 defendants' negligence. She may, indeed, establish that 
 the event has occurred through the joint negligence of 
 both, but if that is the state of the evidence the plaintiff 
 fails, because ' in pari delicto potior est conditio defenden- 
 tis' It is true that the onus of proof may shift from time 
 to time as matter of evidence, but still the question must 
 ultimately arise, whether the person who is bound to prove 
 the affirmative of the issue, i. e., in this case the negligent 
 act done, has discharged herself of that burden. I am of 
 opinion that the plaintiff does not do this unless she 
 proves that the defendants have caused the injury in the 
 sense which I have explained."^ And in a recent case in 
 Pennsylvania the same principle was emphatically asserted 
 by Mr. Justice Sterrett.^ But when in making his prima 
 
 ' Lord Halsbury, in Wakelin v. den is on the plaintiff to prove that 
 
 London & South Western Railway the injury complained of was caused 
 
 Co., L. R. 12 App. Gas. 41. by defendant's negligence, and if, in 
 
 ' In Bradwell v. Railway Co., 139 so doing, the fact is disclosed that his 
 
 Pa. 404 (1890) : " In actions such as own negligence contributed to the re- 
 
 this, it has been sometimes said that suit, there can be no recovery, because 
 
 the plaintiff must present a case clear the case as thus presented by the 
 
 of contributory negligence. The ob- plaintiff is not clear of contributory 
 
 vious meaning of that and similar negligence. It was never intended to 
 
 forms of expression is, that the bur- mean that the plaintiff, after first 
 
456 
 
 EVIDENCE. 
 
 § 237 
 
 facie case the plaintiff has cleared himself from any infer- 
 ence of negligence he has met the obligation resting 
 upon him to make his case, and it is carrying his burden 
 beyond the ordinary and just rule of evidence to require 
 him to bring a preponderance of evidence upon a defense 
 which the defendant ordinarily pleads, and which he is 
 endeavoring with all his energies to prove. And it is 
 of much importance to satisfactorily decide this question 
 in relation to the burden of proof, because whether the 
 judge shall charge that the burden is on the plaintiff or 
 on the defendant, is a matter of much moment when the 
 case is given to the jury. 
 
 proving affirmatively that defendant's 
 negligence caused the injury, must 
 also prove negatively that he himself 
 was not guilty of any negligence that 
 contributed to the result. No repu- 
 table authority can be found anywhere 
 to sustain such a proposition." .... 
 
 In Texas, etc. Ry. Co. v. Crowder, 
 63 Tex. 502 (1885), Stayton, A. J., 
 said : " There is no doubt that cases 
 occur in which the accident is of such 
 character as, of itself, when considered 
 in connection with the facts which 
 necessarily appear in showing the 
 accident, to amount to sufficient proof 
 of the want of due care by a defend- 
 ant, and of the exercise of due care by 
 a plaintiff, to authorize a jury to find 
 both facts, without any direct proof on 
 either point ; but this does not affect 
 the question of burden of proof, but 
 relates rather to the sufficiency of the 
 evidence furnished by the accident 
 itself. 
 
 " The burden of proof, resting on a 
 plaintiff upon the issues of negligence 
 of the defendant and his own exercise 
 of due care, requires that he should 
 show the facts surrounding and lead- 
 ing to the accident, and if from these, 
 when shown, a jury may reasonably 
 
 infer negligence in the defendant con- 
 tributing to the injury, and the exer- 
 cise of due care by the plaintiff, then 
 he is entitled to a verdict ; but if he 
 does not show how the accident oc- 
 curred by which he was injured, by 
 showing his own relation to it, and 
 the other surrounding facts, some or 
 all of which may appear from the 
 character of the accident itself, then 
 he has not gone with his evidence as 
 far as the law required him to go to 
 authorize a recovery. 
 
 " The rule in relation to the neces- 
 sity for a plaintiff to develop the cir- 
 cumstances of an accident and his 
 own relation thereto, when, in cases 
 of this kind, the defendant's liability 
 depends on its negligence as the cause 
 of an injury, is thus well stated in 
 Hinckley v. Railroad Co., 120 Mass. 
 262 : ' While, however, the plaintiff is 
 to show that he was in the exercise of 
 due care, and that no negligence of his 
 contributed to the injury, this may be 
 shown by proving facts and circum- 
 stances from which it may fairly be in- 
 ferred, and if all the circumstances 
 under which an accident took place 
 are put in evidence, and upon an ex- 
 amination of them nothing is found in 
 
§238 
 
 EVIDENCE. 
 
 457 
 
 § 238. Burden on plaintiff in some localities. — Although 
 the prevailing views are shown in the rules already pre- 
 sented, many able courts hold that the burden of proof 
 rests upon the plaintiff to show that he has exercised due 
 care,^ and the general adoption of this rule has been ad- 
 
 the conduct of the plaintiff to which 
 negligence can fairly be imputed, the 
 mere absence of fault may justify the 
 jury in finding due care on his part. 
 Mayo V. Boston & Maine Railroad, 
 104 Mass. 137. But if there is only a 
 partial disclosure of the facts, and no 
 evidence is offered showing the con- 
 duct of the party injured in regard to 
 matters specially requiring care on his 
 part, the data for such an inference is 
 not sufficient. It can only be war- 
 ranted when circumstances are shown 
 which fairly indicate care or exclude 
 the idea of negligence on his part. 
 Crafts V. Boston, 109 Mass. 519." 
 
 See Missouri Pacific Ry. Co. v. 
 Foreman, 73 Tex. 311, 11 S. W. Rep. 
 326. 
 
 ' See Louisville, etc. R. Co. v. 
 Stommel, 126 Ind. 35, 25 N. E. Rep. 
 863 ; Mynning v. Detroit, etc. R. Co., 
 67 Mich. 677, 35 N. W. Rep. 811 
 (1888); North Chicago St. R. Co. v. 
 Louis (III.), 27 N. E. Rep.4Si (1891); 
 Stack V. Wood, 136 Mass. 353; But- 
 ton V. Frink, 51 Conn. 342 ; Owens v. 
 Richmond, etc. R. Co., 88 N. C. 502 
 (but see Hudson v. Railroad Co., 104 
 N. C. 491); Slosson V. Burlington, etc. 
 R. Co., 51 la. 294; Piather V. Rich- 
 mond, etc. R. Co., 80 Ga. 427 ; Vicks- 
 burg V. Hennessy, 54 Miss. 391 ; Der- 
 kinan v. Morgan's, etc. S.S. Co., 5 So. 
 Rep. 76 ; Moore v. Shreveport, 3 La. 
 Ann. 645; Beach on Cont. Neg., § 422 ; 
 Shearman & Redfield on Neg., § 107. 
 
 In Crafts v. Boston, 109 Mass. 519 
 (1872), Wells, J., says : " The only 
 question presented by the ruling at 
 the trial is that of due care on the 
 
 part of the plaintiff's intestate. That 
 the injury happened in consequence of 
 his coming upon the defect in the way 
 must be assumed, although not dis- 
 tinctly appearing from the report. 
 
 " There is no direct evidence, either 
 of care at the time of the accident or 
 the contrary. The rule laid down in 
 Mayo V. Boston & Maine Railroad, 
 104 Mass. 137, in regard to the ex- 
 tent and mode of proof necessary to 
 sustain such an action, is applicable 
 here. But the circumstances of the 
 accident are not sufficiently disclosed 
 to warrant any inference upon the 
 question of care or negligence. There 
 was an interval of thirteen years be- 
 tween the time of the occurrence and 
 the trial. None of the persons in the 
 horse-car or in the other carriage, 
 both of which were passing at the 
 time in the opposite direction, were 
 produced to testify. The injured par- 
 ty died soon afterward, so that his 
 account of the matter could not be 
 had ; of the two persons who were 
 with him, one is said to be dead 
 and the other 'out West,' and his tes- 
 timony was not obtained. The only 
 witness called, who was able to testify 
 to any part of the occurrence from 
 having seen it, testified that his ' at- 
 tention was drawn by the crash.' Of 
 course, whatever there was of care or 
 negligence must have preceded the 
 first observation of the witness. 
 
 " Whether this absence of evidence 
 results from fault, or is only the mis- 
 fortune of the plaintiff, is immaterial 
 to the decision of the question of law. 
 Without evidence from which due 
 
458 
 
 EVIDENCE, 
 
 238 
 
 vocated.^ Where this view is held, it is conceded that 
 slight proof of the exercise of due care will suffice in the 
 first instance, and that the circumstances in themselves 
 may furnish adequate explanation of the accident and 
 may show where the responsibility belongs ; and that 
 where this is so, no other proof is required.* 
 
 care could properly be inferred as a 
 fact, the burden of proving that fact 
 being upon her, the plaintiff was not 
 entitled to a verdict. 
 
 " The circumstances which do ap- 
 pear are equally consistent with either 
 negligence or care in the manner of 
 driving at the time of the accident. 
 None of them are such as to indicate 
 care or exclude negligence sufficiently 
 to warrant the inference that due care 
 was in fact exercised. In this state of 
 the evidence the verdict must neces- 
 sarily be for the defendant. Smith v. 
 First Nat. Bank in Westfield, 99 Mass. 
 605. 
 
 "The defect was an open ditch 
 which had existed for ' some months, 
 perhaps a year,' in the side of a way 
 with which the plaintiff's intestate was 
 familiar ; he having occasion to drive 
 over it constantly in the prosecution 
 of his business as a baker, and having 
 his place of Jjusiness on the same 
 street and his house not far from it. 
 The occurrence was in the daytime. 
 The course of the track of his wagon- 
 wheel did not indicate the operation 
 of any sudden emergency which might 
 prevent his observing for the moment 
 his position and that of the ditch. 
 Even if the other carriage was upon 
 the wrong side of the street, or upon 
 the wrong side of the railroad track, 
 as is contended, although not so ap- 
 pearing in the exception, that circum- 
 stance would not present any diffi- 
 culty to a careful and experienced 
 driver. We look in vain for any fact 
 
 in the case to account for the accident 
 in any manner which would exclude 
 the idea of negligence on the part of 
 the person injured. 
 
 " The testimony offered that the 
 horse was a safe and proper one was 
 competent as evidence upon the issue, 
 if there had been any evidence that 
 the driver was using proper care at 
 the time of the accident. But it did 
 not meet the whole issue, and was ex- 
 cluded, we presume, for that reason, 
 and not on the ground that it was in- 
 competent in itself. Hobart v. Plym- 
 outh, 100 Mass. 1 59." 
 
 See Lyman v. Hampshire, 140 Mass. 
 
 311- 
 
 . ' See Beach on Cent. Neg., 2d ed., 
 
 §442. 
 
 " In Lyman v. Boston & Maine 
 Railroad (N. H.), 1 1 L. R. A. 364, 20 
 Atl. Rep. 976 (1890), Blodgett, J., 
 says : " But as in an action for negli- 
 gence two conditions must concur, a 
 performance of duty by the plaintiff and 
 a breach of duty by the defendant, 
 the proof of a breach by this defend- 
 ant did not necessarily give rise to the 
 inference of due care on the part of 
 the deceased, — proof of which was es- 
 sential to the plaintiff's case. The 
 rule that the burden of proof is on 
 the plaintiff to prove his exercise of 
 proper care is, however, easily satis- 
 fied, and the exercise of such care 
 may be shown by circumstantial as 
 well as by direct proof. It even may, 
 under some circumstances, be inferred 
 from the ordinary habits and disposi- 
 
§ 239 
 
 EVIDENCE, 
 
 459 
 
 § 239. Rule in New York. — It was said some time ago 
 that the cases in New York upon this subject were irrec- 
 oncilable,^ and later by Mr. Justice Strong, of the 
 United States Supreme Court, that the courts of New 
 York put the burden upon the defendant.^ But recent 
 cases have held that the burden is upon the plaintiff to 
 show that he was exercising due care, and if one rule is 
 to be stated from the New York authorities to apply to 
 all cases, it must be conceded that the rule in this State 
 is that it is essential to plaintiffs case to bring evidence 
 
 tions of prudent men and the instinct 
 of self-preservation. Johnson v. Hud- 
 son River R. Co., 20 N. Y.65 ; North- 
 ern Cent. R. Co. v. State, 29 Md. 420, 
 428, 31 Md. 357; Cleveland & P. R. 
 Co. V. Rowan, 66 Pa. 393 ; Weiss v. 
 Pennsylvania R. Co., 79 Pa. 387 ; 
 Pierce, Railroads, 299. 
 
 " And when all the circumstances 
 under which an accident took place 
 are put in evidence, and upon an ex- 
 amination of them nothing is found in 
 the conduct of the plaintiff to which 
 negligence can fairly be imputed, the 
 mere absence of fault may justify the 
 jury in finding due care on his part. 
 Mayo V. Boston & M. R. Co., 104 
 Mass. 137 ; Milwaukee & C. R. Co. v. 
 Hunter, 11 Wis. 160; Pierce, Rail- 
 roads, 3C30. 
 
 " In the present case nothing is 
 found to which negligence on the part 
 of the deceased can fairly be imputed ; 
 but, on the other hand, circumstances 
 are shown from which the jury may 
 well infer that he exercised the care 
 and circumspection properly to be de- 
 manded from one in his situation, and 
 it is only when the whole evidence on 
 which the plaintiff's case rests shows 
 conclusively that he was careless, or 
 when there is no evidence tending to 
 show the contrary, that it is deemed 
 
 to be the duty of the court to with- 
 draw the case from the jury or to di- 
 rect a verdict for the defendant. 
 Mayo v. Boston & M. R. Co., supra ; 
 Gahagan v. Boston & L. R. Co., i Al- 
 len 187 ; Fox V. Sackett, 10 Allen 
 
 535- 
 
 . . . . " While a nonsuit should al- 
 ways be granted when the proof is so 
 clear as to warrant the assumption 
 that if the question were submitted to 
 the jury they would find that the cul- 
 pable negligence of the plaintiff con- 
 tributed to the injury, it should never 
 be granted when the question arises 
 on a state of facts on which fair- 
 minded men may arrive at opposite 
 conclusions. Almost always negli- 
 gence is to be deduced as an infer- 
 ence of fact from a variety of facts 
 and circumstances disclosed by the 
 testimony ; and when this is so, un- 
 less the evidence is certain and incon- 
 trovertible, it is the judgment and ex- 
 perience of the jury, and not of the 
 court, which is to be appealed to. 
 See Gaynor v. Old Colony & N. R. 
 Co., 100 Mass. 212, and Hinckley v. 
 Cape Cod R. Co., 120 Mass. 265, 
 266." 
 
 ' Thompson on Neg., vol. 2, p. 1 177. 
 
 ^ See Railroad Company v. Glad- 
 mon, IS Wall. 401. 
 
460 EVIDENCE. § 239 
 
 of the exercise of due care, that if his case is satisfactory 
 in other respects, but is left in the balance on the question 
 of contributory negligence he cannot recover, and that a 
 charge to the jury upon the submission of the case to 
 them, that the defendant has the burden of proof upon 
 this question, is erroneous.^ This, as we have seen, is not 
 the prevailing view upon this question, and it may be 
 doubted whether it is a view that would be applicable 
 to all cases. The rule stated by an able judge in 1859,** 
 did not impose such a severe burden upon the plaintiff. 
 This was as follows : 
 
 " 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 contribute 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 a case to the jury, the evi- 
 dence on the part of the plaintiff must be such as, if be- 
 lieved, 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 character of the defend- 
 ants' delinquency may be such as to prove, prima facie, 
 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 misfortune upon 
 himself. No more certain rule can be laid down." 
 
 ' Infra, n. i, p. 463. negligence have contributed to the in- 
 '^ Denio, J., in Johnson v. Hudson jury, that it must be considered a 
 River Railroad Co., 20 N. Y. 65 ; a legal postulate. I agree that this is 
 further extract from this valuable an element in the definition of the 
 opinion is as follows : " The general cause of action, and that the plain- 
 rule has been so often laid down and tiff's case, when presented to the jury, 
 reiterated, that to enable a party to must not be defective upon that point, 
 recover in this class of actions, the any more than upon that of the de- 
 person injured must not by his own fendants' negligence. This is em- 
 
240 
 
 EVIDENCE. 
 
 461 
 
 . § 240. Divergence in facts accountable for various rul- 
 ings. — As is said in the opinion of Denio, J., quoted in the 
 
 braced in the proposition that the 
 injury must be the result of the negli- 
 gence of the defendants ; for if the 
 culpable conduct of both parties 
 united in bringing it about, that prop- 
 osition is not true. But I am of 
 opinion that it is not a rule of law of 
 universal application 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 undis- 
 puted facts. Thus, if a carriage be 
 driven furiously upon a crowded 
 thoroughfare, and a person is run over, 
 he would not be obliged to prove that 
 he was cautious and attentive, and he 
 might recover though there were no 
 witnesses of his actual conduct. The 
 natural instinct of 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 other evidence would be required. 
 But if one make an excavation or lay 
 an obstruction in the highway, which 
 may or may not be the occasion of an 
 accident to a traveler, it would be 
 reasonable to require a party seeking 
 damages for an injury to give general 
 evidence that he was traveling with 
 ordinary moderation and care. The 
 obligation to give such evidence would 
 be greater or less according as the 
 impedinnent was more or less danger- 
 ous. Thus, in Butterfield v. Forester, 
 II East 60, the defendant, in mak- 
 ing some repairs to his house in a 
 town, had put up a pole across the 
 road, leaving, however, a free passage 
 by a branch or street in the same 
 
 direction. The plaintiff rode against 
 it and was injured. No question arose 
 as to the onus ; but it being proved 
 that he was riding immoderately, it 
 was held that he could not recover. 
 So in Smith v. Smith, 2 Pick. 621, 
 the defendant had piled cordwood by 
 the side of the highway at the foot of 
 a hill, and one stick projected eight 
 inches into the road. The plaintiff in 
 a dark night drove an overloaded 
 wagon down the hill without any 
 shaft-girth to the harness. The wagon 
 struck the horse and he ran alongside 
 of the wood-pile and against the pro- 
 jecting stick and caused an injury. A 
 verdict for the defendant was sus- 
 tained by the court on the ground 
 that the plaintiff's conduct had con- 
 tributed to the accident. There was 
 no controversy here as to the onus, all 
 the facts being before the jury. If 
 there had been no evidence of the cir- 
 cumstances, but only that the plaintiff 
 had driven in the daytime against the 
 stick of wood, and had been injured, 
 although leaving the stick in that posi- 
 tion was an act of negligence, still it 
 might be reasonable to require the 
 plaintiff to show that his carriage was 
 properly equipped, and that he drove 
 with ordinary circumspection, and in 
 such a case I conceive that it might 
 be quite right to nonsuit the plaintiff 
 for not having made out a case proper 
 to be submitted to the jury. But sup- 
 pose the case of a dangerous excava- 
 tion in a highway which a very pru- 
 dent man might possibly avoid, but 
 which he would be in great danger 
 from, and a man was found to have 
 fallen into it, the case being so situated 
 that the precise circumstances could 
 not be shown, must the plaintiff be 
 nonsuited on the assumption of a posi- 
 
462 
 
 EVIDENCE. 
 
 § 240 
 
 note to the preceding section, the facts of a case fre- 
 quently give evidence of the presence or absence of con- 
 tributory negligence, and whenever an inference on this 
 question is deducible from these facts it should control. 
 In the cases in which the rule upon this subject has been 
 recently asserted in New York, the accidents have been at 
 railway crossings and have occurred under circumstances 
 suggesting contributory negligence. When the facts of a 
 case show that a person was injured by a train at a 
 railway crossing — an accident which can ordinarily be 
 avoided if one will stop and listen — there is sufficient 
 reason, perhaps, in the facts themselves to put the burden 
 upon the plaintiff of showing the exercise of due care 
 
 live rule of law requiring him to show 
 affirmatively that the accident did not 
 happen in part through his fault ? I 
 think not. The purpose of a jury trial 
 is that the experience, intelligence, and 
 judgment of twelve men may be 
 availed of to settle disputed questions 
 of fact. The duty of the judge presid- 
 ing at the trial is the same in this class 
 of cases as in others : it is to deter- 
 mine whether a case is presented fit 
 for the deliberation of the jury. This 
 is to be decided, not by the applica- 
 tion of any artificial rule respecting 
 the onus probandi, but by considering 
 the facts and circumstances in evi- 
 dence in connection with the ordinary 
 habits, conduct, and motives of men. 
 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 dif- 
 ficulty, may properly be taken into con- 
 sideration. Nor is it correct to say 
 as a universal rule that the defendant 
 must himself prove, in order to estab- 
 
 lish his defense, that the plaintiff was 
 guilty of negligence. That, as well as 
 the absence of fault, may be inferred 
 from the circumstances, and the neg- 
 ligent act of the defendant may be of 
 such a mitigated character that a 
 party complaining of an injury from it 
 ought to show that it occurred with- 
 out fault on his own part. This seems 
 to me entirely consistent with the 
 principle that the jury must, in order 
 to find a verdict for the plaintiff, be 
 able to say that the injury happened 
 from the negligence of the defendant, 
 to which the plaintiff did not by any 
 act of his contribute. 1 have come to 
 this conclusion, from the reason of 
 things, and from general legal analo- 
 gies ; but I have not failed to look into 
 the several cases to which we have 
 been referred, and many others. It 
 generally happens that the evidence 
 on one side or the other discloses the 
 material facts bearing upon the case, 
 so that courts have not often been 
 called upon to speak of the burden of 
 proof as to the plaintiff's freedom from 
 negligence." 
 
§ 240 
 
 EVIDENCE. 
 
 463 
 
 by the one injured.^ That the real reason for the deci- 
 sions in New York putting this burden on the plaintiff 
 
 ' In Rodrian v. New York, etc. R. 
 Co., 125 N. Y. 526 (.1891), Andrews, 
 J., said : " We cannot perceive that 
 the burden resting upon the plaintiff 
 to show, or to give evidence tending 
 to show, or from which the jury might 
 find, that his intestate was free from 
 contributory negligence, or exercised 
 due care, was in any way met or dis- 
 charged. The circumstances so far 
 as disclosed seem to point to the op- 
 posite conclusion." 
 
 In Wiwiroski v. Lake Shore, etc. 
 R. Co., 124 N. Y. 420 (1891), 2d Div., 
 Haight, J., says : " The burden of 
 showing that the plaintiff's intestate 
 was free from contributory negligence 
 rested upon the plaintiff. It is true 
 that the want of negligence may be 
 established from inferences which 
 may be properly drawn from the sur- 
 rounding facts and circumstances, as 
 in the case of Galvin v. Mayor, etc., 
 112 N. Y. 223. But such inference 
 cannot be drawn from a presumption 
 that a person will exercise care and 
 prudence in regard to his own life and 
 safety, for the reason that human ex- 
 perience is to the effect that persons 
 exposed to danger will frequently 
 forego the ordinary precautions of 
 safety. And when the circumstances 
 point as much to the negligence of 
 the deceased as to its absence, or 
 point in neither direction, a nonsuit 
 should be granted. Cordell v. N. Y. 
 C. & H. R. R.R. Co., 75 N. Y. 330. 
 See also Reynolds v. N. Y. C. & H. R. 
 R.R. Co., 58 N. Y. 248 ; Hoag v. N. 
 Y. C. & H. R. R.R. Co., 1 1 1 Id. 199 ; 
 Bond v. Smith, 113 Id. 378." See 
 also Brickell v. New York Central, 
 etc. R. Co., 120 N. Y. 290, 2d Div. 
 (1890). 
 In Tolman v. Syracuse, etc. R. Co., 
 
 98 N. Y. 198 (1885), French, J., said: 
 " The burden was upon the plaintiff 
 of showing atfirmatively, either by di- 
 rect evidence or the drift of surround- 
 ing circumstances, that the deceased 
 was himself without fault, and ap- 
 proached the crossing with prudence 
 and care, and with senses alert to the 
 possibility of approaching danger. 
 He must look and listen, and is ex- 
 cusable for the omission only when 
 the circumstances show that both 
 precautions were impossible or un- 
 availing. There is no evidence, direct 
 or inferential, of the exercise of such 
 care and prudence by the deceased. 
 .... The burden of establishing 
 affirmatively freedom from contribu- 
 tory negligence may be successfully 
 borne, though there were no eye-wit- 
 nesses of the accident, and even al- 
 though its precise cause and manner 
 of occurrence are unknown. If, in 
 such case, the surrounding facts and 
 circumstances reasonably indicate or 
 tend to establish that the accident 
 might have occurred without negli- 
 gence of the deceased, that inference 
 becomes possible, in addition to that 
 which involves a careless or willful 
 disregard of personal safety, and so a 
 question of fact may arise to be solved 
 by a jury, and require a choice be- 
 tween possible, but divergent, infer- 
 ences. If, on the other hand, those 
 facts and circumstances coupled with 
 the occurrence of the accident do not 
 indicate or tend to establish the ex- 
 istence of some cause or occasion of 
 the latter which is consistent with the 
 exercise of proper prudence and care, 
 then the inference of negligence is the 
 only one left to be drawn, and the 
 burden resting upon the plaintiff is 
 not successfully borne, and a non^ 
 
464 
 
 EVIDENCE. 
 
 § 240 
 
 lies in the facts of tliese cases, finds some evidence in a 
 recent decision in the Court of Appeals in a case where 
 the facts were quite different and where the court held, 
 referring to the case of Johnson v. Hudson River Rail- 
 road Company, that the plaintiff in the absence of proof 
 as to his actual conduct, from the character of the acci- 
 dent and the circumstances surrounding it, was entitled 
 to the benefit of the presumption that he would act 
 carefully under the circumstances and that his case should 
 have gone to the jury.^ In another case, where the facts 
 
 suit for that reason becomes inevita- 
 ble 
 
 " The facts leave the occurrence ex- 
 plainable as to its cause and occa- 
 sion, only by the theory of negligence 
 on the part of the deceased. They 
 indicate no way in which the accident 
 might have happened, suggest no ad- 
 equate cause which could or might 
 have operated, which way or cause 
 showed freedom from fault on the 
 part of deceased, and could have pro- 
 duced the result in spite of his care 
 and prudence. The evidence leaves 
 no rational ground for any other in- 
 ference than one of neglect and want 
 of care." See Hart v. Hudson River 
 Bridge Co., 84 N. Y. 56. 
 
 ' Galvin v. New York, 112 N. Y. 
 223 (1889), Ruger, Ch. J., says: " A 
 more serious question grows out of 
 the alleged negligence of the plain- 
 tiff's intestate, arising from the fact 
 that no one observed him, at the pre- 
 cise moment of the accident, or was 
 able to testify as to what he was 
 doing when the grating fell upon him. 
 Under the strict rule of evidence 
 adopted by the trial "court all proof of 
 what he was probably attempting to 
 do, in the customary manner of de- 
 livering coal, was excluded from the 
 consideration of the jury, and it was 
 th^n held that there was no evidence 
 
 from which the absence of con- 
 tributory negligence could be inferred. 
 The ruling of the trial court seemed 
 to have been based upon the assump- 
 tion that the proof showed the de- 
 ceased unnecessarily in the place 
 where he was injured ; and that there 
 was nothing in the circumstances ap- 
 pearing on the trial from which a 
 jury was authorized to infer that he 
 was necessarily or properly there in 
 the performance of the duty he had 
 to discharge. It is by no means in- 
 dispensable to a recovery in such a 
 case that an injured party should 
 always produce eye-witnesses as to 
 the manner in which an accident oc- 
 curred ; for in many cases this is im- 
 possible and is almost always difficult ; 
 but it does not follow that a recovery 
 cannot be had in such cases. 
 
 " It has been said that, ' in an action 
 for personal injury from negligence of 
 the defendant, the absence of any 
 fault on the part of the plaintiff may 
 be inferred from the circumstances in 
 connection with the ordinary habits, 
 conduct, and motives of men,' and 
 that ' the character of the defendant's 
 negligence may be such as prima 
 facie to prove the whole issue.' John- 
 son v. H. R.R. Co., 20 N. Y. 65. 
 
 "We think the jury in this case had 
 the right to infer, from all the facts. 
 
§240 
 
 EVIDENCE. 
 
 465 
 
 afforded no evidence of the negligence of tlie defendant or 
 of the freedom of the plaintiff from contributory negli- 
 gence, it was held that there was nothing to submit to the 
 jury.^ The plaintiff, although obliged to show freedom 
 
 that the deceased was called to the 
 place where he received his injuries 
 in the performance of his duty, and 
 had not omitted the precautions which 
 a prudent man would take in the 
 presence of a known danger. Pal- 
 mer V. Dearing, 93 N. Y. 7. 
 
 " The proof did not show affirma- 
 tively a want of care on the part of 
 the deceEised, and was quite consist- 
 ent with the exercise of due care and 
 caution in approaching the grating. 
 Many loads of coal had been safely 
 delivered down the hatchway, under 
 the same circumstances which ex- 
 isted on the morning of the accident, 
 and the driver had, therefore, some 
 reason for supposing that the grating 
 was sufficiently safe to afford him an 
 opportunity of doing what he was 
 apparently attempting to do. That 
 he had some reason for taking the 
 position where he was injured is al- 
 together probable, and it is unrea- 
 sonable to suppose that he carelessly 
 placed himself in a position to be in- 
 jured." See Dobbins v. Brown, 119 
 N. y. 192 (1890); Splittorf v. New 
 York, 108 N. Y. 205 (1888); Riordan 
 V. Ocean Steamship Co., 124 N. Y. 
 655, 2d Div. (1891), where the case of 
 Galvin v. New York, supra, is dis- 
 tinguished. See further, Jones v. 
 New York Central, etc. R. Co., 28 
 Hun 364, affi'd 92 N. Y. 628 (see ap- 
 peal book); Smedis v. Brooklyn Rail- 
 road Co., 88 N. Y. 13 (1882); Becht 
 V. Corbin, 92 N. Y. 658 ; Riceman v. 
 Havemeyer, 84 N. Y. 647; Hale v. 
 Smith, 78 N. Y. 483 ; Beach on Cont. 
 Neg., 2d ed., § 433 et seq. ; Abbott's 
 Trial Evidence, p. 594. 
 30 
 
 ' Kuebler v. New York, 15 N. Y. 
 Supp. 187 (1891), Barrett, J., says: 
 " The complaint was dismissed at the 
 close of the plaintiff's case, and we 
 think correctly. There was not a 
 particle of evidence to sustain the 
 charge of negligence, nor to estab- 
 lish freedom from contributory negli- 
 gence. No one witnessed the occur- 
 rence, and all we know is that the 
 boy was run over by a cart (probably- 
 owned by the defendant) while he: 
 was sitting upon the edge of the 
 sidewalk, with his legs extended out- 
 ward across the gutter. The cart 
 was moving slowly at the time of the 
 accident, and the boy was trying to 
 revive a fire which had been made in 
 the gutter, doubtless from some piece 
 of kindlingwood. This fire had 
 nearly gone out, and the boy was 
 blowing upon it. It was about dusk 
 of a November evening, between 5 
 and 6 o'clock. The boy's brother 
 testified that it was ' dark at the time, 
 but not very dark.' A lamp was lit 
 some 20 or 25 feet from where the 
 boy thus sat, with his legs in the 
 street, playing with the dying fire. 
 This boy was 9 years and 6 months 
 old, and his father testified that he 
 was very bright, and was well able to 
 take care of himself. Under these 
 circumstances it is impossible to infer 
 negligence upon the part of the driver 
 of the cart. No negligent act in con- 
 nection with the handling of the cart 
 is proved, and we have nothing but 
 the bare fact that the boy's leg was- 
 crushed while the cart was proceed- 
 ing slowly in the dusk of evening on 
 its lawful course upon the highway. 
 
466 
 
 EVIDENCE. 
 
 24 
 
 from contributory negligence, is not obliged to alleg 
 that he was free from such negligence,^ 
 
 § 241. Functions of judge and jury.— It is only whe 
 facts are undisputed and when but one inference is reason 
 ably deducible from them that the question of negligenc 
 becomes one of law.^ So whether the plaintiff is guilt 
 
 The driver was undoubtedly bound to 
 look out for persons or vehicles, and, 
 if possible, to avoid running over the 
 one or into the other ; but his atten- 
 tion would ordinarily be directed to 
 persons standing upright in or cross- 
 ing the street, and he could scarcely 
 be expected to be equally observant 
 of the surface of the highway, or of 
 objects almost upon a level therewith. 
 If the occurrence had been in broad 
 daylight, and the driver had been pro- 
 ceeding at an unusual rate of speed, 
 or if there had been any direct evi- 
 dence of actual inattention, a differ- 
 ent question would be presented. In 
 the entire absence, however, of any 
 such direct evidence, we are here left 
 to mere conjecture ; and that, cer- 
 tainly, will not answer to fix responsi- 
 bility upon the defendant. We think, 
 too, that the boy's own negligence 
 contributed to the accident. He was, 
 as we have seen, old enough and 
 bright enough to be able to take care 
 of himself; and he was responsible 
 for the exercise of such care as might 
 reasonably be expected of one of his 
 years and capacity. In the most 
 liberal view of this rule, it cannot be 
 said that the burden of showing free- 
 dom from contributory negligence has 
 here been met, either by direct evidence 
 or by the drift of surrounding circum- 
 stances. If boys as old and as bright 
 as the deceased sit down in the streets, 
 or upon the curbstones with their 
 legs extended into the streets, they 
 must expect to get into trouble. At 
 
 all events, they knowingly run a gre; 
 risk. The inference here is that th 
 boy either saw the cart slowly a] 
 proaching, and paid no attention to i 
 or that his attention was so engrosse 
 with blowing upon the smoulderin 
 fire that he did not observe the aj 
 proach of danger. In either case hi 
 carelessness contributed to the ace 
 dent." 
 
 ' Lee V. Troy City Gas Light Co 
 98 N. Y. 115. 
 
 * Mt. Vernon v. Desonchett, 2 Inc 
 586, 54 Am. Dec. 467; Bruker v. Co\ 
 ington, 69 Ind. 33, 35 Am. Rep. 202 
 Witham v. Portland, 72 Me. 53 
 (1881); Sandowski v. Michigan Ca 
 Co., 84 Mich. 100 ; Overacre v. Blak( 
 82 Cal. ^^ ; Terre Haute, etc. R. C( 
 v. Voelker, 129 111. 540; Johnston 1 
 Philadelphia (Pa.), 21 Atl. Rep. 316 
 Bunting v. Hogsett fPa.), 12 L. R.^ 
 268 ; Hoag V. Lake Shore, et( 
 R. Co., 85 Pa. 293 ; Hayman v. Penr 
 sylvania R. Co., 118 Pa. 508 ; Prideau 
 V. Mineral Point, 43 Wis. 513; Drape 
 V. Ironton, 42 Wis. 696. 
 
 In Wilson v. Louisville & Nashvill 
 R.R. Co., 85 Ala. 269 (1887), Cloptoi 
 J., says : " Generally, negligence is 
 mixed question of law and fact; an 
 it is for the consideration of the jur 
 when the evidence is conflicting, c 
 only tends to prove the facts, or if di 
 ferent minds may reasonably dra' 
 different inferences, though the fad 
 are uncontroverted. The court shoul 
 not take the question from the jur 
 unless the facts are undisputed, t 
 
241 
 
 EVIDENCE, 
 
 467 
 
 of contributory negligence is ordinarily a question of fact 
 for the jury.^ Even if the evidence is undisputed whether 
 the conduct of the plaintiff was proper, should be sub- 
 mitted to the jury, if reasonable men may differ concern- 
 ing it.* This is the most satisfactory rule that has been 
 devised to apply to this question, but it is necessarily un- 
 
 conclusively proved, and the inference 
 undisputable ; or, unless the rule of 
 duty is clearly defined, and is invaria- 
 ble, virhatever may be the circum- 
 stances ; or unless the court could 
 properly sustain a demurrer to the 
 evidence. Ala. Gr. So. R.R. Co. v. 
 Jones, 71 Ala. 487 ; E. T. Va. & Ga. 
 R.R. Co. V. Bayliss, 74 Ala. 1 50." 
 
 In Abbett v. Chicago, etc. Ry. Co., 
 30 Minn. 482 (1883), Mitchell, J., 
 says : " Negligence is ordinarily a 
 question for the jury. It is always so 
 where the evidence on material points 
 is conflicting, or where, the facts being 
 undisputed, different minds might 
 reasonably draw different conclusions 
 from them. Negligence cannot be 
 conclusively established, as a matter 
 of law, upon a state of facts on which 
 fair-minded men of ordinary intelli- 
 gence may differ as to the inferences to 
 be drawn from it ; and when the ques- 
 tion of negligence arises upon even a 
 conceded state of facts from which 
 reasonable men might arrive at differ- 
 ent conclusions, it must be submitted 
 to the jury, and if the inferences to be 
 drawn from the evidence are not cer- 
 tain or uncontrovertible, the question 
 of negligence cannot be passed upon 
 by the court. The evidential facts 
 may be all admitted, and yet the ques- 
 tion of negligence not be a question 
 for the court ; for in such case this is 
 the main fact, the existence or non- 
 existence of which is to be inferred 
 from the other facts. But where the 
 facts are undisputed or conclusively 
 
 proved, and there is no reasonable 
 chance for drawing different conclu- 
 sions from them, then the question, as 
 in any other case, becomes one of law 
 for the court. And even if there be 
 controversy in the evidence as to some 
 facts, yet if those that are uncontro- 
 verted clearly and indisputably estab- 
 lished negligence, it is still a question 
 of law for the court. While it is un- 
 doubtedly true that a court might, in 
 its discretion, set aside a verdict as 
 against the weight of evidence, and 
 submit the question to another jury, 
 in a case where it would have no right 
 to take the question entirely away 
 from the jury, yet we apprehend that 
 whenever it would be the bounden 
 duty of the court to set aside a ver- 
 dict because there is no evidence to 
 sustain it, or because it is against the 
 evidence, it would be no error to direct 
 a verdict or grant a nonsuit." 
 
 ' Supra, § 228. 
 
 ' Randall v. Baltimore, etc. R. Co., 
 109 U. S. 478 ; Fiske v. Forsyth Dye- 
 ing Co., 57 Conn. 118 (1889); Railroad 
 Co. V. Stout, 17 Wall. (U. S.) 657 ; 
 Hough V. Railway Co., 100 U. S. 213; 
 Baltimore, etc. R. Co. v. Walborn, 127 
 Ind. 142 (1S90) ; Rogers v. Leyden, 
 127 Ind. 50 ; Pennsylvania R. Co. v. 
 Horst, 1 10 Pa. 226; Shearman & Red- 
 field on Neg., § 52 et seq. ; Wharton 
 on Neg., § 420 ; Cooley on Torts, p, 
 670; Beach on Cont. Neg., 2d ed., 
 § 444 et seq.; Am. & Eng. Encyc. of 
 Law, vol. 16, pp. 465, 466. 
 
468 
 
 EVIDENCE. 
 
 24 
 
 certain, for it is based upon the theory that reasonab] 
 men will not differ in regard to particular cases.^ 1 
 
 ' This question has recently re- 
 ceived exhaustive consideration by the 
 Supreme Court of Connecticut in the 
 case of Farrell v. Waterbury Horse 
 R.R. Co., 60 Conn. 239 (1891), and 
 the following quotation is made from 
 the opinion of Torrance, J.: "Where 
 the law itself prescribes and defines 
 beforehand the precise specific con- 
 duct required under given circum- 
 stances, the standard by which such 
 conduct is to be judged is found in 
 the law. When, in such a case, the 
 conduct has been ascertained, the 
 law, through the court, determines 
 whether the conduct comes up to the 
 standard. The rules of the road, 
 some of the rules of navigation, and 
 the law requiring the sounding of the 
 whistle or the ringing of the bell of a 
 locomotive approaching a grade cross- 
 ing at a specified distance therefrom, 
 may serve as instances of this kind. 
 
 " Of course if, in cases of this kind, 
 one of the parties injures another, he 
 is not necessarily absolved from 
 blame by showing a compliance with 
 the specific rule or law, for it may be 
 that while so doing he neglected 
 other duties which the law imposed 
 upon him. But, when the only ques- 
 tion is whether the ascertained con- 
 duct comes up to the standard fixed 
 by the specific rule or law, the con- 
 clusion, inference, or judgment that it 
 does or does not, is, as we have said, 
 one of law. 
 
 " ' A question of law, in the true 
 sense, is one that can be decided by 
 the application to the specific facts 
 found to exist (here the conduct of 
 some person and the circumstances 
 under which he acted or omitted to 
 act) of a pre-existing rule. Such a 
 rule must contain a description of the 
 
 kind of circumstances to which it 
 to apply, and the kind of conduct r 
 quired.' Terry's Leading Principli 
 of Anglo-Am. Law, S. 72. In sue 
 cases, as this court said in substan( 
 in Hayden v. Allyn, 55 Conn. 289, tl 
 evidence exhausts itself in producir 
 the facts found. Nothing remait 
 but for the court, in the exercise of i 
 legal discretion, to draw the inferenc 
 of liability or non-liability, and th 
 inference or conclusion can in sue 
 cases always be reviewed by th 
 court. Clear cases of this kind usi 
 ally present no difficulty. 
 
 " As applicable to most cases, hov 
 ever, the law has not provided specif 
 and precise rules of conduct ; it coi 
 tents itself with laying down son 
 few wide general rules. The ru 
 that all persons must act and condu( 
 themselves, under all circumstance 
 as a man of ordinary prudence woul 
 act under like circumstances, is a 
 illustration of this class of rules ( 
 laws. This general rule of condui 
 is not a standard of conduct in tl 
 same sense in which a fixed rule 1 
 law is such a standard. In mo 
 cases where it must be applied, tl 
 principal controversy is over the que 
 tion what would have been the coi 
 duct of a man of ordinary pruden( 
 under the circumstances. Manifest 
 the rule itself can furnish no answi 
 to that question in such cases. ' Tl 
 rule usually propounded, to act as 
 reasonable and prudent man wou 
 act in the circumstances, still leavi 
 open the question how such a n ; 
 would act.' Terry's Lead. Pri 
 Anglo-Am. Law, S. 72. 
 
 " It is also a varying standard. ' \ 
 dangerous situations ordinary ca 
 means great care ; the greater tl 
 
§241 
 
 EVIDENCE. 
 
 469 
 
 theory hardly justified by experience as the inferences to 
 be derived from proved facts, are not readily agreed upon. 
 
 danger, the greater the care required ; 
 and the want of the degree of care 
 required may amount to culpable neg- 
 ligence.' Knovvles v. Crampton, 55 
 Conn. 344. 
 
 " This general rule has rightly been 
 called 'a featureless generality,' but 
 from the necessity of the case it is 
 the only rule of law applicable in the 
 great majority of cases involving the 
 question of negligence. The law 
 cannot say beforehand how the man 
 of ordinary prudence would act, or 
 ought to act, under all or any proba- 
 ble set of circumstances. But in cases 
 involving the question of negligence, 
 where this general rule of conduct is 
 the only rule of law applicable, it 
 may and sometimes does happen, that 
 the conduct under investigation is so 
 manifestly contrary to that of a rea- 
 sonably prudent man, or is so plainly 
 and palpably like that of such a man, 
 that the general rule itself may be 
 applied as a matter of law by the 
 court without the aid of a jury. 
 That is, the conduct may be such that 
 no court could hesitate or be in doubt 
 concerning the question whether the 
 conduct was or was not the conduct 
 of a person of ordinary prudence 
 under the circumstances. 
 
 " The difference between the classes 
 of cases where the court can thus 
 apply the general rule of conduct, 
 and those wherein it must be applied 
 by the jury, is well illustrated in the 
 following extract from the opinion of 
 the Supreme Court of the United 
 States, in the case of Railroad Com- 
 pany V. Stout, 17 Wall. 657. 'If a 
 sane man voluntarily throws himself 
 in contact with a passing engine, 
 there being nothing to counteract the 
 effect of this action, it may be ruled. 
 
 as a matter of law, that the injury to 
 him resulted from his own fault, and 
 that no action can be sustained by 
 him or his representatives. So if a 
 coach-driver intentionally drives with- 
 in a few inches of a precipice, and an 
 accident happens, negligence may be 
 ruled as a question of law. On the 
 other hand, if he had placed a suitable 
 distance between his coach and the 
 precipice, but .by the breaking of a 
 rein or an axle, which could not have 
 been anticipated, an injury occurred, 
 it might be riiled as a question of law 
 that there was no negligence and no 
 liability. But these are extreme cases. 
 The range between them is almost 
 infinite in variety and extent. It is in 
 relation to these intermediate cases 
 that the opposite rule prevails. Upon 
 the facts proven in such cases it is a 
 matter of sound judgment and dis- 
 cretion, of sound inference, what is 
 the deduction to be drawn from the 
 undisputed facts. Certain facts we 
 may suppose to be clearly established, 
 from which one sensible, impartial 
 man would infer that proper care had 
 not been used and that negligence 
 existed, while another equally sensible 
 and equally impartial man would infer 
 that proper care had been used and 
 that there was no negligence. It is 
 this class of cases and those akin to 
 it that the law commits to the de- 
 cision of a jury.' 
 
 "The line of division between 
 these two classes of cases is by no 
 means a fixed and well-defined one. 
 Close cases will occur where courts 
 may well differ in opinion as to 
 whether they lie on one side or on the 
 other of the boundary line. ' Legal, 
 like natural divisions, however clear in 
 their general outline, will be found on 
 
470 
 
 EVIDENCE. 
 
 241 
 
 We find, therefore, that judges frequently nonsuit when 
 they should have sent the case to the jury, and send a 
 
 exact scrutiny to end in a penumbra 
 or debatable land.' Holmes' Com- 
 mon Law, 127. 
 
 " Now the difficulty of determining 
 whether a conclusion or inference of 
 negligence is one of fact or one of 
 law, as these phrases are commonly 
 used, arises mainly in this interme- 
 diate class of cases. In such cases 
 the law itself furnishes no certain, 
 specific, sufficient standard of conduct, 
 and, of necessity, leaves the trier to 
 determine, both what the conduct is, 
 and whether it comes up to the stan- 
 dard, as such standard exists in the 
 mind of the trier. In a case of this 
 kind the inference or conclusion of 
 the trier, upon the question whether 
 the ascertained conduct does or does 
 not come up to such standard, is, as 
 we have said, called a question of 
 fact, and, generally speaking, it can- 
 not be reviewed by this court.. If 
 such inference is drawn by a jury, it 
 is final and conclusive, because their 
 opinion of what a man of ordinary 
 prudence would or would not do, 
 under the circumstances, is the rule 
 of decision in that special case. If 
 drawn by a single trier, as it may be 
 under our system of law, it is equally 
 final and conclusive for the same 
 reason. 
 
 .... "The distinction in question, 
 then, being in general a fundamental 
 and important distinction, the ques- 
 tion remains whether any general 
 rule exists, the application of which 
 will determine in every case with cer- 
 tainty whether the inference as to 
 negligence to be drawn from ascer- 
 tained facts is one of fact or of law in 
 the sense explained. Perhaps no such 
 general rule has been or can be formu- 
 lated. At any rate, we know of none, 
 
 and we do not intend in the present 
 case to lay down any such general rule. 
 But cases involving the distinction in 
 question have been frequently before 
 the courts ; they have been decided 
 upon principles which have been, to 
 some extent, formulated into working 
 rules ; and these rules can be applied 
 with reasonable certainty in most cases 
 that arise in actual practice. In his 
 work on Torts Judge Cooley states 
 such a rule as follows : ' The proper 
 conclusion seems to be this : If the 
 case is such that reasonable men, un- 
 affected by bias or prejudice, would 
 be agreed concerning the presence or 
 absence of due care, the judge would 
 be quite justified in saying that the 
 law deduced the conclusion accord- 
 ingly. If the facts are not ambigu- 
 ous, and there is no room for two hon- 
 est and apparently reasonable conclu- 
 sions, then the judge should not be 
 compelled to submit the question to 
 the jury as one in dispute.' Cooley 
 on Torts, p. 670. In the case 
 of Detroit & Milwaukee R.R. Co. 
 V. Van Steinburg, 17 Mich., supra. 
 Judge Cooley stated the rule as 
 follows : ' It is a mistake to say, as it 
 is sometimes said, that when the facts 
 are undisputed, the question of negli- 
 gence is necessarily one of law. This 
 is generally true only of that class of 
 cases where a party has failed in the 
 performance of a clear legal duty. 
 When the question arises upon a 
 state of facts on which reasonable 
 men may fairly arrive at different con- 
 clusions, the fact of negligence cannot 
 be determined until one or the other 
 of these conclusions has been drawn 
 by the jury. The inferences must 
 either be certain or uncontrovertible, 
 or they cannot be decided by the 
 
§241 
 
 EVIDENCE. 
 
 471 
 
 case to the jury when they should have decided it them- 
 selves.^ The following extract from a recent case* shows 
 
 court.' Wharton says : ' The true 
 position is this : Negligence is always 
 a logical inference to be drawn by the 
 jury from all the circumstances of the 
 case, under the instructions of the 
 court. In all cases in which the evi- 
 dence is such as not to justify the in- 
 ference of negligence, so that the ver- 
 dict of a jury would be set aside by 
 the court, then it is the duty of the 
 court to negative the inference. In 
 all other cases the question is for the 
 jury, subject to such advice as may be 
 given by the court as to the force of 
 the inference.' Wharton on Negli- 
 gence, S. 420. 
 
 " The rule as laid down by Judge 
 Cooley is substantially like the one 
 adopted by the Supreme Court of the 
 United States in the case of Railroad 
 Co. V. Stout, 17 Wall., supra. The 
 rule is thus stated in Terry's Leading 
 Principles of Anglo-American Law, 
 S. 72 : ' The question, was the specific 
 conduct of the specific person in the 
 specific circumstances reasonable or 
 not ? must usually remain as a ques- 
 tion which is really one of fact. When 
 the reasonableness or unreasonable- 
 ness of the conduct is very plain, 
 the court will decide it. When it 
 seems to the court fairly to admit of 
 doubt, it will be handed over to the 
 jury.' 
 
 " Mr. Beach, in his work on Con- 
 tributory Negligence, p. 454, states 
 the rule as follows : ' When the facts 
 are unchallenged, and are such that 
 reasonable 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 contrib- 
 utory negligence as one of law.' In 
 Ochsenbein v. Sharpley, 85 N. Y. 214, 
 the court stated the rule thus : ■' When 
 the facts are undisputed and do not 
 admit of different or contrary infer- 
 ences, the question is one of law for 
 the court.' This also substantially 
 appears to be the rule in Ohio and 
 California. Cleveland C. & C. R.R. 
 Co. v. Crawford, 24 Ohio St. 631 ; 
 McKeever v. Market St. R.R. Co., 59 
 Cal. 294. 
 
 " It is perhaps unnecessary to say 
 that, in making the foregoing cita- 
 tions from text writers and decisions, 
 we do not necessarily adopt or ap- 
 prove of all their conclusions, or the 
 rule precisely as stated by them ; but 
 we think some of the principles stated, 
 upon which the rules are or profess to 
 be based, will furnish a practical guide 
 for the solution of the question we are 
 considering, in cases like the one at 
 bar. Manifestly, this frequently re- 
 curring question ought to be decided 
 upon principle, so far as it is possible 
 to do. 
 
 " We think an examination of the 
 cases from our own reports heretofore 
 cited, and of others therefrom that 
 might be cited, involving the question 
 of negligence, will showthat this court 
 in such decisions has applied princi- 
 ples which, in most cases occurring 
 in practice, will solve the question un- 
 
 ' In Roux v. Lumber Co., 85 Mich. Harris v. Clinton Tp., 64 Mich. 447, 
 519 (1891), McGrath, J., says : " In 453, the court says, ' Upon this issue 
 
 ' Mathews v. Cedar Rapids, 20 Am. St. Rep. 436 (1890). 
 
472 
 
 EVIDENCE. 
 
 241 
 
 the difficulty of deciding whether there is but one reason- 
 able inference from the facts : " It is true, the question 
 
 der consideration without much diffi- 
 culty. From such an examination we 
 think it will appear that, in cases in- 
 volving the question of negligence, 
 where the general rule of conduct is 
 alone applicable, where the facts 
 found are of such a nature that the 
 trier must, as it were, put himself in 
 the place of the parties, and must ex- 
 ercise a sound discretion based upon 
 his experience, not only upon the 
 question, what did the parties do or 
 omit under the circumstances? but 
 upon the further question, what 
 would a prudent, reasonable man 
 have done under those circumstances, 
 and especially where the facts and cir- 
 cumstances are of such a nature that 
 honest, fair-minded, capable men 
 
 might come to different conclusions 
 upon the latter question, the inference 
 or conclusion of negligence is one to 
 be drawn by the trier, and not by the 
 court as matter of law. Such an in- 
 ference or conclusion will, speaking 
 generally, be treated by this court as 
 one of fact, which will not be reviewed 
 where the facts have been properly 
 found, unless the court can see from 
 the record that in drawing such in- 
 ference the trier imposed some duty 
 upon the parties which the law did 
 not impose, or absolved them from 
 some duty which the law required of 
 them under the circumstances, or in 
 some other respect violated some rule 
 or principle of law." 
 
 there are two reasonable but different 
 views which might be taken, and 
 therefore the question should have 
 been submitted to the jury. 
 
 " ' Where there is a chance, upon 
 the facts shown, for ordinary candid 
 and intelligent men to arrive at dif- 
 ferent conclusions, the question ol 
 contributory negligence is to be de- 
 termined by the jury.' Adams v. 
 Iron Cliffs Co., 78 Mich. 271 ; Luke v. 
 Mining Co., 71 Mich. 364, and Teipel 
 V. Hilsendegen, 44 Mich. 461. 
 
 " This is one of those cases where 
 two reasonable and different views 
 might be taken, and two men of 
 equal candor might differ. In my 
 judgment, the court below erred in 
 taking the case from the jury, and in 
 ruling that as a matter of law the 
 plaintiff was guilty of contributory 
 negligence." 
 
 In City of Franklin v. Harter, 127 
 Ind. 446 (1890), Elliott, J., says : " A 
 
 municipal corporation is not an in- 
 surer of the safety of its streets, and 
 to fasten a liability upon it for injuries 
 resulting from defects in its streets 
 it must be affirmatively shown that 
 the municipality was guilty of negli- 
 gence. The question is always one 
 of negligence, for, in no instance, can 
 there be a recovery unless the corpo- 
 ration has failed to exercise ordinary 
 care, skill, or diligence to make its 
 streets reasonably safe for passage. 
 
 " As the question in cases where a 
 municipal corporation is sought to be 
 held liable for injuries caused by a 
 defect in a street is one of negligence, 
 it is seldom that the court can deter- 
 mine the question as one of law, for 
 in by far the greater number of cases 
 the question is a complex one, in 
 which matters of law blend with mat- 
 ters of fact. In all such cases the 
 duty of the court is to instruct the jury 
 as to the law, and that of the jury is 
 
§ 241 
 
 EVIDENCE. 
 
 473 
 
 of negligence is sometimes one of law, but it is not at all 
 times, and the rule to determine the question is, if from 
 the undisputed facts but one conclusion can reasonably 
 be drawn, then the question is one of law ; but if, under 
 the facts, different minds might reasonably reach different 
 conclusions, it is a question of fact for the jury.' 
 
 to determine whether, under the law 
 an declared by the court, there is 
 actually negligence. Nor does this 
 general rule fail in all cases where the 
 facts are undisputed, since the rule 
 has long been settled in this State 
 that where an inference of negligence 
 may or may not be reasonably drawn 
 from admitted facts, the case is ordi- 
 narily for the jury under proper in- 
 structions, but where only one infer- 
 ence can be reasonably drawn from 
 the facts the question of negligence or 
 no negligence may be determined by 
 the court, as one of pure law. The 
 rule as we have outlined it, is the law 
 of this State and must be so accepted, 
 notwithstanding expressions occa- 
 sionally found in some of the cases 
 which seem to indicate a different 
 doctrine. It would overthrow a long 
 line of cases to deny the rule, and it 
 would also lead to the subversion ot 
 sound and salutary principles. In the 
 old as well as in the recent cases the 
 doctrine we here declare has been 
 strongly and explicitly asserted, and 
 to that doctrine we give an unwaver- 
 ing and unhesitating adherence, dis- 
 approving all statements which seem 
 to deny its soundness. Baltimore, 
 etc. R,R. Co. V. Walbom, 127 Ind. 
 142 ; Rogers v. Leyden, Id. 50, and 
 authorities cited. 
 
 " By the rule so often asserted the 
 instruction under immediate mention 
 must be tested, and if it will not bear 
 the test it must be condemned. That 
 it falls before the test we think is 
 
 clear. It explicitly directs the jury 
 that, ' This state of facts charges the 
 city of Franklin with liability to the 
 plaintiff,' thus confining the jury to the 
 facts mentioned in the instruction. 
 If the ' state of facts ' to which the 
 jury are confined by the instruction 
 does not, in itself, create a liability, it 
 is impossible to rescue the instruction 
 from condemnation. That the ' state 
 of facts ' referred to does not, in itself, 
 create a liability is obvious when it is 
 brought to mind, as it must be, that 
 the only fact designated in the in- 
 struction is that the ' stairway with an 
 iron railing upon the east and north, 
 and open to the south, within the 
 limits of the sidewalk, has been for a 
 number of years as it now is.' The 
 effect of the instruction is to charge 
 the municipal corporation with lia- 
 bility, without respect to the location 
 of the opening, or its surroundings. 
 This was an invasion of the province 
 of the jury, as well as an incorrect 
 statement of the law. It was for the 
 jury ,to determine, from all the evi- 
 dence, whether there was or was not 
 a breach of duty arising out of the 
 failure of the corporate authorities to 
 exercise ordinary care." 
 
 ' Citing Milne v. Walker, 59 Iowa 
 186; Whitsettv. Chicago, etc. R.R. 
 Co., 67 Iowa 150. See also Bennett 
 V. Syndicate Ins. Co., 39 Minn. 254; 
 Indianapolis, etc. Railway Co. v. 
 Watson, 1 14 Ind. 20, 5 Am. St. Rep. 
 578; Barnes v. Sowden, 119 Pa. St. 
 S3- 
 
474 EVIDENCE. 8 241 
 
 "The plaintiff was passing along a well-lighted street. 
 A brilliantly lighted show-window, with an attractive dis- 
 play of articles, arrested his attention. He turned and 
 approached the window. There was nothing above the 
 surface of the walk to obstruct his approach or indicate 
 danger. Would all reasonable minds concur in the opin- 
 ion that in approaching such a window a person must so 
 far anticipate danger as to look where he walks, to know 
 if there are openings into which he might step ? In this 
 case the plaintiff turned, and walked with his eyes con- 
 stantly on the exhibits in the window, and did not see 
 the opening until he fell. 
 
 " Would all say that in so doing he was negligent ? In 
 observing the articles, he was answering the manifest 
 design of their being placed there. As placed, they were 
 a standing invitation to passers-by to view them. With 
 nothing above the surface of the walk to prevent, would 
 all persons agree that it was unreasonable for one to 
 believe that the invitation was to come near and see, and 
 that for such a purpose the way was safe ? Is it the rule 
 that persons passing along the walk in a city, must keep 
 such a lookout as to know if there are openings through 
 which they might step, and that it is negligence, as a 
 matter of law, not to discover one that is plainly visible 
 by one observing where he is walking ? It is admitted 
 that it may be as a question of fact ; but is it as a matter 
 of law } Such observation is not the experience of per- 
 sons in general. They assume, as we think they have a 
 right to, that the walks are made without such defects, 
 and observations generally are as to the obstructions, or 
 what may be encountered above the surface, as boxes or 
 displays of goods on the walk. If one should shut his 
 eyes and walk along the street, and meet with an accident, 
 all might say he was negligent because of such fact. But 
 if he walked with eyes open, observing his general 
 
§ 242 EVIDENCE. 475 
 
 course, in the usual manner, with a like result, although 
 he might be negligent as a matter of fact, the law would 
 not determine him so. The rule of the instruction makes 
 no allowance for the attention being attracted to other 
 things, but is fixed and unalterable, and not in harmony 
 with that announced in Murphy v. Chicago, etc. R.R. 
 Co.,' and Messenger v. Pate."** 
 
 This general rule, however, is designed to send all cases 
 to the jury excepting those that clearly and without ques- 
 tion should be decided in one way upon the facts proved, 
 and by the lapse of time and the accumulation of prece- 
 dents classes of cases where one rule is applicable are 
 developed, and this power of the courts to restrict the 
 actions of juries in granting verdicts in questionable cases 
 is most valuable and salutary. 
 
 The jury must decide whether there was notice of a 
 defect given a municipality, and what lapse of time is 
 sufficient to charge it with constructive notice,^ whether 
 the corporation has assumed control of a particular street^ 
 and whether the injury was the proximate cause of the 
 defendant's negligence or the plaintiff's contributory neg- 
 ligence.^ 
 
 If a judge upon the trial has sufficiently covered the 
 questions in a case by his charge, he is not obliged to 
 go over the ground again in the language of counsel." 
 
 § 242. Evidence to show similar accidents when proper. — 
 It is a general rule that evidence to show that other 
 similar accidents have happened at the place where the 
 plaintiff has been injured is admissible. This rule was 
 
 ' 38 Iowa 539. Rep. 889 ; Munger v. Waterloo (la.), 
 
 ' 42 Iowa 443. 49 N. W. Rep. 1028 (1891) ; Deer- 
 
 ' Supra, § 183 et seq. field v. Connecticut, etc. R. Co., 144 
 
 * Supra, \ 73. See McCormack v. Mass. 325 ; Bugbee v. Kendricken, 
 
 Amsterdam, 18 N. Y. Supp. 272. 132 Mass. 349; Sheridan v. Hibbard, 
 
 ^ Supra, %2o\. 119 111. 307; Indianapolis, etc. Rail- 
 
 ' Kansas City v. Bradbury-, 25 Pac. road v. Horst, 93 U. S. 291. 
 
476 EVIDENCE. § 242 
 
 followed by the United States Supreme Court in a lecent 
 case, the facts of which upon this point are disclosed in 
 the opinion of Mr. Justice Field, who said : 
 
 " On the trial, a member of the Metropolitan police, 
 who saw the deceased fall on the sidewalk and went to 
 his assistance, was asked, after testifying to the accident, 
 whether, while he was on his beat, other accidents had 
 happened at that place. The court allowed the question 
 against the objection of the city's counsel, for the purpose 
 of showing the condition of the street, and the liability 
 of other persons to fall there. The witness answered that 
 he had seen persons stumble over there. He remem- 
 bered sending home in a hack a woman who had fallen 
 there, and had seen as many as five persons fall there. 
 
 " The admission of this testimony is now urged as error, 
 the point of the objection being that it tended to intro- 
 duce collateral issues, and thus mislead the jury from the 
 matter directly in controversy. Were such the case, the 
 objection would be tenable ; but no dispute was made as 
 to these accidents, no question was raised as to the extent 
 of the injuries received, no point was made upon them, no 
 recovery was sought by reason of them, nor any increase 
 of damages. They were proved simply as circumstances 
 which, with other evidence, tended to show the dangerous 
 character of the sidewalk in its unguarded condition. 
 The frequency of accidents at a particular place would 
 seem to be good evidence of its dangerous character, — at 
 least it is some evidence to that effect. Persons are not 
 wont to seek such places, and do not willingly fall into 
 them. Here the character of the place was one of the 
 subjects of inquiry to which attention was called by the 
 nature of the action and the pleadings, and the defendant 
 should have been prepared to show its real character in 
 the face of any proof bearing on that subject. Besides 
 this, as publicity was necessarily given to the accidents, 
 
§242 
 
 EVIDENCE. 
 
 477 
 
 they also tended to show that the dangerous character of 
 the locality was brought to the attention of the city 
 authorities."^ 
 
 The reasons for the admission of this testimony, as 
 given in the foregoing opinion, are generally accepted as 
 satisfactory by the courts of this country,* and evidence 
 of similar accidents is ordinarily admissible. In some 
 localities a contrary rule is held, but greater consideration 
 
 '- District of Columbia v. Armes, 
 107 U. S. 519 (1882). 
 
 ^ Compare Gilirie v. Lockport, 122 
 N. Y. 403 (1889), supra, p. 205, n. 2; 
 Pomfrey v. Saratoga Springs, 104 N. 
 Y. 459 ; Bullock v. New York, 2 N. 
 E. Rep. I ; Quinlan v. Utica, 1 1 Hun 
 217, 74 N. Y. 603 ; Garrison v. New 
 York, 5 B0SW.497; Avery v. Syracuse, 
 29 Hua 537 ; Moore v. Richmond, 85 
 Va. 538 ; Darling v. Westmoreland, 
 52 N. H. 401 ; Kent v. Lincoln, 32 
 Vt. 591 ; Calkins v. Hartford, 33 
 Conn. 57; House v. Metcalf, 27 Conn. 
 631 ; Chicago v. Powers, 42 111. 169; 
 Aurora v. Brown, 12 111. App. 122 ; 
 Delphi V. Lowery, 74 Ind. 520 ; 
 Brennan v. St. Louis, 92 Mo. 482, 7 
 West. Rep. 148; Blair v. Pelham, 118 
 Mass. 420; Augusta v. Hafers, 61 Ga. 
 48; Phillips V. Willow, 76 Wis. 6; 
 Ruggles V.Nevada, 63 la. 185; Abilene 
 V. Hendricks, 36 Kas. 196. 
 
 In Gilmer v. The City of Atlanta, 
 77 Ga. 688 (.1886), Jackson, Chief- 
 Justice, says : " We think her entitled 
 to a new trial on the ground that the 
 evidence by another person, that he 
 was tripped up and thrown down 
 some days before by the same roots 
 at the same place, was rejected. There 
 are two lines of decisions on the point: 
 one that the evidence is admissible ; 
 the other that it is not. The current 
 of opinion in this State by this court 
 is, that what sheds light on the truth 
 of the transaction should go to the 
 
 jury ; that the doors should be open 
 rather than shut to testimony; and 
 that, in doubtful cases, the doors 
 should always open, letting the jury 
 pass upon the effect and weight to be 
 given to such evidence. 
 
 " The fact that another fell from the 
 same cause is certainly a circum- 
 stance that the sidewalk will occasion 
 falls ; and that it occurred within a 
 few days of that of plaintiff, renders 
 the circumstances stronger as bearing 
 on the issue she makes and which is 
 on trial. What weight the jury may 
 give it, we do not know. Whatever 
 it may be, our view of the law of our 
 State entitles her to have it." 
 
 In Branch v. Libbey, 78 Me. 321 
 (1886), Foster, J., says: "The only 
 question presented by this bill of ex- 
 ceptions is upon the admissibility of 
 evidence, against the plaintiflf's objec- 
 tion, by which the defendant was al- 
 lowed to prove that just before and 
 just after the accident to the plaintiff, 
 other persons drove over the street- 
 crossing without injury. 
 
 " Without discussing or even ex- 
 pressing any opinion in relation to the 
 merits of the plaintifi's claim which 
 he sets up against this defendant, we 
 think the evidence was improperly ad- 
 mitted. It has been repeatedly held 
 in actions against towns for injuries 
 sustained on account of alleged de- 
 fects in highways therein, that evi- 
 dence is not admissible to prove that 
 
478 
 
 EVIDENCE. 
 
 § 242 
 
 of the question will probably lead to a more uniform 
 rule on the subject.^ 
 
 Similarly, if it can be shown that a defect in a high- 
 way is not of a character that would produce an accident 
 
 a person other than a party to the 
 action, has either passed safely over 
 the alleged defect, or has received an 
 injury at that place. Such evidence 
 is not competent either for the pur- 
 pose of proving that the way was de- 
 fective, or in suitable condition, at the 
 time and place of the alleged injury, 
 or as a test of the degree of care ex- 
 ercised by the plaintiff. In support 
 of these principles only a few of the 
 numerous cases need be cited, among 
 which are the following: Aldrich v. 
 Pelham, i Gray 510; Collins v. Dor- 
 chester, 6 Cush. 396; Kidder v. Dun- 
 stable, II Gray 342; Schoonmaker 
 V. Wilbraham, no Mass. 134; Hub- 
 bard V. A. & K. R.R. Co., 39 Maine 
 506 ; Hubbard v. Concord, 35 N. H. 
 52. 
 
 " The reason assigned for rejectmg 
 such evidence is that it is not perti- 
 nent to the issue, but is evidence con- 
 cerning collateral facts tending 'to 
 draw away the minds of the jury from 
 the point in issue, and to excite prej- 
 udice and mislead them ; and, more- 
 over, the adverse party having no no- 
 tice of such a course of evidence, is not 
 prepared to rebut it.' i Greenl. Ev. 
 S 52. As was said by this court in 
 Parker v. Portland Publishing Co., 69 
 Maine 175, the entire weight of judi- 
 cial authority is against the reception 
 of such evidence. And in Moulton 
 v. Scruton, 39 Maine 288, it was held 
 that such evidence was inadmissible 
 upon cross-examination. If admitted, 
 each case would present a distinct is- 
 sue, with all its attendant circum- 
 stances, including the degree of care, 
 the rate of speed, and the kind of ve- 
 
 hicle with which each person was 
 driving. The attention of the jury 
 would thus be diverted from the main 
 issue, and directed to what is unim- 
 portant and purely collateral." 
 
 In Mathews v. City of Cedar Rapids 
 (la.), 20 Am. St. Rep. 436 (1890), 
 Granger, J., says : " Plaintiff offered 
 evidence to the effect that other par- 
 ties had fallen into the same opening 
 before the plaintiff, and that defendant 
 Mansfield had been informed of the 
 fact. The evidence was refused, and 
 the refusal is made a ground of com- 
 plaint. The ruling seems to be sus- 
 tained in Hudson v. Chicago, etc. 
 R.R. Co., 59 Iowa 581, 44 Am. Rep. 
 692. If it was an original question 
 in this court, some of its members 
 might incline to a different view. 
 There is a decided conflict of author- 
 ities on the question.'' 
 
 In Longworthy v. Green (Mich.), 50 
 N. W. Rep. 130 (1891), it was said : 
 " A witness was asked by defendant's 
 counsel if he had ever heard or known 
 of any one being injured on that ob- 
 struction before this, but the court 
 properly excluded the testimony. 
 Hodges V. Bearse, 111. Sup., 21 N. E. 
 Rep. 613." The question in the case 
 decided by the Illinois court — see 129 
 111. 87 (1889) — was not within the 
 reasons of the rule admitting the tes- 
 timony in actions against municipali- 
 ties. 
 
 ' Morse v. Minneapolis, etc. Ry. Co., 
 30 Minn. 465 (1883), Mitchell, J., says : 
 " Plaintiff was also permitted to show 
 that, after the accident, defendant re- 
 paired the switch alleged to have 
 been defective. The court held, in 
 
242 
 
 EVIDENCE, 
 
 479 
 
 by the frightening of a horse, it is competent to show 
 that many horses have passed the defect without being 
 frightened thereby.^ And in a case where the issue was 
 
 O'Learyv. City of Mankato, 21 Minn. 
 65, that such evidence was, under cer- 
 tain circumstances, competent. This 
 case was followed in Phelps v. City 
 of Mankato, 23 Minn. 276, and Kelly 
 V. South Minn. Ry. Co., 28 Minn. 98, 
 and this position is not without sup- 
 port in the decisions of other courts. 
 But, if competent, such evidence is 
 only so as an admission of the pre- 
 vious unsafe condition of the thing 
 repaired or removed, and, to render it 
 admissible as such, the act must have 
 been done so soon after the accident, 
 and under such circumstances as to 
 indicate that it was suggested by the 
 accident, and was done to remedy the 
 defect which caused it. All courts 
 who admit the evidence at all, so hold. 
 In the present case the change in this 
 switch was made over a year after the 
 accident, and after it had been re- 
 moved to another place. Under such 
 circumstances the repairs were, pre- 
 sumably, merely an ordinary better- 
 ment. Under such a state of facts 
 such evidence would not be admissi- 
 ble under any rule, and its admission 
 was, therefore, error. 
 
 " But on mature reflection, we have 
 concluded that evidence of this kind 
 ought not to be admitted under any 
 circumstances, and that the rule here- 
 tofore adopted by this court is on 
 principle wrong ; not for the reason 
 given by some courts, that the acts of 
 the employees in making such repairs 
 are not admissible against their prin- 
 cipals, but upon the broader ground 
 that such acts afford no legitimate 
 basis for construing such an act as 
 an admission of previous neglect of 
 duty. A person may have exercised 
 
 all the care which the law required, 
 and yet, in the light of his new expe- 
 rience, after an unexpected accident 
 has occurred, and as a measure of ex- 
 treme caution, he may adopt ad- 
 ditional safeguards. The more careful 
 a person is, the more regard he has 
 for the lives of others, the more likely 
 he would be to do so, and it would 
 seem unjust that he could not do so 
 without being liable to have such acts 
 construed as an admission of prior 
 negligence. We think such a rule 
 puts an unfair interpretation upon hu- 
 man conduct, and virtually holds out 
 an inducement for continued negli- 
 gence. Dougan v. Champlain Transp. 
 Co., 56 N. Y. I ; Sewell v. City of 
 Cohoes, II Hun 626; Baird v. Daly, 
 
 68 N. Y. 547 ; Payne v. Troy& B. R. 
 Co., 9 Hun 526 ; Salters v. Delaware 
 & H. Canal Co., 3 Hun 338 ; Dale v. 
 Delaware, L. & W. R. Co., 73 N. Y. 
 468." 
 
 ' Bloor V. The Town of Delafield, 
 
 69 Wis. 273 (1887), Lyon, J., says: 
 " Testimony was offered on behalf of 
 the defendant town to show that nu- 
 merous horses were driven past the 
 mortar-box on the Sunday it stood 
 there without becoming frightened. 
 An objection thereto was sustained. 
 Counsel for the plaintiff cite several 
 adjudged cases, wherein it is held 
 that such testimony is inadmissible. 
 No case is cited which holds to the 
 contrary. To hold such testimony 
 admissible would be to open the door 
 to numerous and perplexing side is- 
 sues, which is always to be avoided. 
 For example, should the testimony be 
 received, it would be competent for 
 the plaintiff to show that each of 
 
48o 
 
 EVIDENCE, 
 
 242 
 
 whether the horse driven by the plaintiff was a suitable 
 horse for use on the highway, it was held that evidence 
 to show that the horse had stumbled on previous occa- 
 sions was proper.^ 
 
 But, in order to admit evidence of the defective char- 
 acter of a particular place, evidence of previous accidents 
 must relate to that locality, and not to another place 
 similar to it, at all events, unless evidence is first intro- 
 duced to show the similarity. This rule has been recently 
 asserted in New York in a case where the accident hap- 
 pened upon a station of an elevated road,** and the court 
 said : 
 
 " Proof of the happening of a prior accident in the 
 
 those horses was blind, or was driven 
 past the box with extraordinary care ; 
 should the plaintiff be able to prove 
 that other horses were frightened by 
 the box, the defendant might show 
 that each of such horses was skittish 
 or carelessly driven. Thus, several 
 issues might be raised not raised by 
 the pleadings, and which, presum- 
 ably, neither party would be prepared 
 to try. The approved rules of evi- 
 dence are framed to avoid such a con- 
 tingency. Furthermore, the fact that 
 other horses were driven past the box 
 in broad daylight without being fright- 
 ened by it, fails to show that even 
 quiet, gentle horses might not be so 
 frightened if driven past it in the dusk 
 of the evening, when it might appear 
 distorted and unnatural. We con- 
 clude that the offered testimony was 
 properly rejected." 
 
 ' In Judd V. Town of Claremont, 23 
 Atl. Rep. 426 (1891), Smith, J., says : 
 " The plaintiff seeks to recover dam- 
 ages for injuries from a defective 
 highway. The alleged defect was a 
 depression in the centre of the high- 
 
 way, in which were some fast stones 
 uncovered and some loose stones. 
 The horse with which she was trav- 
 eling stepped upon a loose stone and 
 partially fell. The plaintiff was thereby 
 thrown from her carriage and injured. 
 Two witnesses testified, subject to ex- 
 ception, that they saw the horse stum- 
 ble on a previous occasion. No evi- 
 dence was introduced to show that 
 this fact was brought to the plaintift's 
 knowledge. The evidence was com- 
 petent on the question whether she 
 was driving a suitable horse. Whether 
 she used ordinary diligence to provide 
 herself with a suitable horse is another 
 question. The fact that the horse had 
 been owned by her husband seven 
 years, and that she had driven him a 
 good deal, afforded evidence from 
 which the jury might find that, if the 
 horse was not a suitable one, she had 
 opportunities for becoming informed 
 of the fact." 
 
 ' Brady v. Manhattan Railway Co., 
 127 N. Y. 46 (1891). See Dye v. 
 Delaware, etc. R. Co., 45 Alb. L. J. 
 155 (1890- 
 
§ 243 EVIDENCE. 48 1 
 
 same place has frequently been held to be competent 
 upon the ground that it tends to show that, tested by 
 actual use, the place of the accident has been demon- 
 strated to be unsafe and dangerous, but our attention 
 has not been called to a case where proof of the occur- 
 rence of an accident in some other place has been held 
 to be proper for that purpose. We think, however, that 
 in a case like that before us, the evidence may become 
 proper where evidence is first adduced tending to show 
 that the conditions are similar." 
 
 § 243. Proof of repairs after accident. — Evidence to show 
 that municipal corporations as well as individuals and 
 other corporations who have been charged with negli- 
 gence in respect to their property after the happening of an 
 accident, have altered or improved its condition, has been 
 frequently oifered to show confession of responsibility. 
 But such evidence is not competent for this purpose. 
 Whether the defendant was negligent, must be deter- 
 mined with reference to the facts and circumstances exist- 
 ing at the time of the accident, and if its occurrence dis- 
 closes the necessity of a different course of action in the 
 future, it is not a matter for which the defendant should 
 be punished, if he acts upon this necessity. This ques- 
 tion has been recently discussed in the United States 
 Supreme Court, and in the opinion in the case referred 
 to,^ Mr. Justice Gray says : 
 
 " This writ of error, therefore, directly presents for the 
 decision of this court the question whether, in an action 
 for injuries caused by a machine alleged to be negligently 
 constructed, a subsequent alteration or repair of the 
 machine by the defendant is competent evidence of neg- 
 ligence in its original construction. 
 
 " Upon this question there has been some difference of 
 
 ' Columbia Railroad Co. v. Hawthorne, 144 U. S. 202 (1892). 
 31 
 
482 EVIDENCE. f 243 
 
 opinion in the courts of the several States. But it is 
 now settled, upon much consideration, by the decision^ 
 of the highest courts of most of the States in which the 
 question has arisen, that the evidence is incompetent, 
 because the taking of such precaution against the future 
 is not to be construed as an admission of responsibility 
 for the past, has no legitimate tendency tp prove that the 
 defendant had been pegligent before the accident hap- 
 pened, and is calculated to distract the minds of the jury 
 from the real issue, and to create a prejudice against th^ 
 defendant.'' 
 
 "As was pointed out by the court in the last case, 
 the decision in Readman v. Conway,^ cited by this plain- 
 tiff, has no bearing upon this question, but simply held 
 that in an action for injuries from a defect in a platform, 
 brought against the owners of the land, who defended on 
 the ground that the duty of keeping the platform in repair 
 belonged to their tenants and not to themselves, the 
 defendants' action in making general repairs of the plat- 
 form after the accident 'were in the nature of admissions 
 that it was their duty to keep the platform in repair, and 
 were, therefore, competent.' 
 
 "The only States, so far as we are informed, in which 
 subsequent changes are held to be evidence of prior neg- 
 ligence, are Pennsylvania and Kansas, the decisions in 
 which are supported by no satisfactory reasons.^ 
 
 " The true rule and the reasons for it were well ex- 
 pressed in Morse v. Minneapolis & St. Louis Railway,* 
 
 ' Citing, Morse v. Minneapolis & Tawas, 86 Mich. 14; Shinners v. Pro- 
 
 St. Louis Railway, 30 Minn. 465; prietors of Locks & Canals, 1 54 Mass. 
 
 Corcoran V. Peekskill, 108 N. Y. 151; 168. 
 
 Nalley v. Hartford Carpet- Co., 51 ' 126 Mass. 374, 377. 
 
 Conn. 524: Ely v. St. Louis, etcj Rail- 3 McKee v. Bidwell, 74 Penn. St. 
 
 way, 77 Mo. 34; Missouri Paciffc Rail- 218, 225, and cases cited; St. Louis& 
 
 way V. Hennessey," 75 Texas 155; San Francisco Railway v. Weaver, 35 
 
 Terre Haute & Indianapolis Railway Kansas 412. 
 
 V. Clem, 123 Ind. 15; Hodges v. Per- " 30 Minnesota 465, 468. . 
 cival, 132 111. 53; LomUar ' vi East 
 
§ 243 evidence; 483 
 
 above cited, in which Mr. Justice Mitchell, delivering the 
 unanimous opinion of the Supreme Court of Minnesota, 
 after referring to earlier opinions of the same court the 
 other way, said : ' But on mature reflection, we have con- 
 cluded that evidence of this kind ought not to be admitted 
 under any circumstances, and that the rule heretofore 
 adopted by this court is on principle wrong ; not for the 
 reason given by some courts, that the acts of the employees 
 in making such repairs are not admissible against their 
 principals, but upon the broader ground that such acts 
 afford no legitimate basis for construing such an act as an 
 admission of previous neglect of duty. A person may 
 have exercised all the care which the law required, and 
 yet, in the light of his new experience, after an unex- 
 pected accident has occurred, and as a measure of extreme 
 caution, he may adopt additional safeguards. The more 
 careful a person is, the more regard he has for the lives of 
 others, the more likely he would be to do so, and it would 
 seem unjust that he could not do so without being liable 
 to have such acts construed as an admission of prior neg- 
 ligence. We think such a rule puts an unfair interjpreta- 
 tion upon human conduct, and virtually holds out an in- 
 ducement for continued negligence,' ^ 
 
 " The same rule appears to be well settled in England. 
 In a case in which it was affirmed by the Court of 
 Exchequer, Baron Bramwell said: 'People do not fur- 
 nish evidence against themselves simply by adopting a 
 new plan in order to prevent the recurrence of an accident, 
 I think that a proposition to the contrary would be bar^ 
 barous. It would be, as I have often had occasion to 
 tell juries, to hold that, because the world gets wiser as it 
 gets older, therefore it was foolish before.' " ^ 
 
 'Hart V. Lancashire & Yorkshire 'In Board of Com 'rs of Wabash 
 Railway, 21 Law Times (N; S.) 261, County v. Pearson, 28 K. E. Rep. 
 263. 1 120, Miller, J., says : " The appellee 
 
484 
 
 EVIDENCE. 
 
 In New York this rule is strictly enforced.^ An 
 ception to it was allowed in allowing proof of sul: 
 
 brought this action against the appel- 
 lant to recover for personal injuries 
 occasioned by the fall of one span of a 
 bridge. The evidence shows that the 
 accident happened on the 24th of 
 January, 1884. One span of the bridge 
 remained standing in the month of 
 March, 1884, when it was examined 
 by the board of commissioners of the 
 county, and an order made for the 
 building of an entirely new bridge. On 
 the trial of this cause, the court, over 
 the objection of the defendant, per- 
 mitted the plaintiff to read in evidence 
 the following record of the board re- 
 ferring to this bridge : ' And now the 
 board take a recess to visit the bridge 
 at Rich Valley, and on their return, 
 are of the opinion that the south span 
 of said bridge now standing is unsafe, 
 and entirely too flimsy a structure on 
 which to trust a heavy load, and they 
 therefore conclude to build a new 
 bridge entire, — two spans, of 137^^ 
 feet each, and do now award the con- 
 tract for the same to the Wrought 
 Iron Bridge Co., of Canton, Ohio, for 
 the sum of $6,200 cash, and the old 
 bridge delivered to the said company 
 as it is.' We are satisfied that the 
 admission of this evidence was error, 
 for which the judgment will have to 
 be reversed. In the case of Railroad 
 Co. v. Clem, 123 Ind. 15, 23 N. E. 
 Rep. 965, decided during the pendency 
 of this appeal, it was held, after an 
 extensive review of the authorities, 
 that such evidence was not admis- 
 sible. The reasons given for the ex- 
 clusion of such evidence are various. 
 One is, that subsequent acts ought not 
 
 to be given in evidence to show a 
 cedent negligence ; that h is 
 which occurs prior to the accid 
 and not that which has happe 
 afterwards, that determines whe 
 there has or not been a negligent 
 charge of duty. Another, and 
 think a better, reason is given in 
 following quotation from the opii 
 in Railroad Co. v. Clem, sup 
 ' True policy and sound reason 
 quire that men should be encoura 
 to improve or repair, and not 
 deterred from it by the fear tha 
 they do so their acts will be constr 
 into an admission that they haveh 
 wrong-doers.' In the recent case 
 Corcoran v. Peekskill, 108 N. Y. : 
 15 N. E. Rep. 309; Menard v. R 
 road Co., 150 Mass. 386, 23 N. 
 Rep. 214; Shinners v. Propriet 
 etc. (Mass.), 28 N. E. Rep. 10 ; 
 class of evidence has been held 
 admissible. The attempt is made 
 counsel for the appellee to distingi 
 between this evidence and that wi- 
 the court held incompetent in the c 
 ofRailroadCo. V. Clem, J«/ra,beca 
 of the express statement in the rec 
 that the span was 'unsafe and entii 
 too flimsy a structure on which to ti 
 a heavy load.' It is sufficient to : 
 without giving other reasons, that 
 admission spoken of refers not to 
 span that fell, but to the one that 
 mained standing. We have then 
 offer to prove an admission thattl: 
 months after the accident happe 
 another span of the bridge was uns 
 This was an oflFer, not to prove 
 direct issue in the case, but a col 
 
 ' In Corcoran v. Village of Peeks- says: "Whether the area was 
 km. JOB N. Y. 151 (1888), Earl, J., ficiently guarded so as to pro 
 
§243 
 
 EVIDENCE. 
 
 485 
 
 quent repair by a commissioner of highways in order to 
 show that he had funds in his hands with which he 
 might have made repairs.^ But under the present law of 
 the State, towns are responsible for their highways, and 
 
 eral fact, aside from that in dispute, 
 and therefore not admissible. Rail- 
 road Co. v. Wyant, 114" Ind. 525, 17 
 N. E. Rep. 118." See also St. Louis, 
 etc. R. Co. V. Jones (Tex.), 14 S. W. 
 Rep. 309 ; Alcorn v. Chicago, etc. R. 
 
 Co., 16 S. W. Rep. 229, 10 Ry. & Corp. 
 L. I. 10 (1891) ; Fox V. Peninsular, 
 etc. Works, 84 Mich. 676, 48 N, W. 
 Rep. 203 ; Hodges v. Percival (111.), 
 23 N. E. Rep. 423. 
 
 travelers upon the street from falling 
 into it was a question of fact for the 
 determination of the jury. It was, 
 however, a close question and there- 
 fore the defendant had the right to 
 have it submitted to the jury upon 
 strictly competent evidence. The 
 plaintiff, against the objection of 
 defendant, was permitted to prove 
 that after the accident a fence was 
 built around the area by the owner of 
 the property, which substantially pro- 
 tected travelers against any danger 
 from the same. This evidence we 
 think was incompetent. Such evi- 
 dence has been sometimes received 
 by courts in cases where the party 
 sued for an accident has, soon there- 
 after, made repairs or improvements 
 for the purpose of making the ma- 
 chine or structure which caused the 
 accident more secure, convenient, or 
 safe, and its admissibility has been 
 defended on the ground that the act 
 of making the repairs or improve- 
 ments was an admission that the ma- 
 chine or structure was therefore im- 
 perfect, out of repair, or unsafe. We 
 think, however, that such evidence 
 does not tend to prove that the party 
 sued knew, or was bound to know, 
 that the machine or structure was 
 imperfect, unsafe, or out of repair. 
 
 After an accident has happened it 
 is ordinarily easy to see how it 
 could have been avoided ; and then 
 for the first time it frequently happens 
 that the owner receives his first inti- 
 mation of the defective or dangerous 
 condition of the machine or structure 
 which caused or led to the accident. 
 Such evidence has no tendency what- 
 ever, we think, to show that the ma- 
 chine or structure was not previously 
 in a reasonable, safe, and perfect con- 
 dition, or that the defendant ought, in 
 the exercise of reasonable care and 
 diligence, to have made it more per- 
 fect, safe, and secure. While such 
 evidence has no legitimate bearing 
 upon the defendant's negligence or 
 knowledge, its natural tendency is 
 undoubtedly to prejudice and influence 
 the minds of the jury." See Getty v. 
 Hamlin, 127 N. Y. 636, 27 N. E. Rep. 
 399 (1891); Dougan v. Champlain 
 Transportation Co., 56 N. Y. i ; Dale 
 V. Delaware, etc. R. Co., 73 N. Y. 
 468 ; Salters v. Delaware, etc. Canal 
 Co., 3 Hun 338 ; Payne v. Troy, etc. 
 R. Co., 9 Hun 526 ; Sweeney v. New 
 York, 17 N. Y. Supp. 797 (1892). 
 
 ■ Morrell v. Peck, 88 N. Y. 398. 
 See Stone v. Poland (N. Y.), 58 Hun 
 21 (1890); Sewall v. Cohoes, 75 N. 
 Y. 45- 
 
486, 
 
 EVIDENCE. 
 
 § 244 
 
 it is held that any subsequent action by highway comr 
 missioners is immaterial.^ 
 
 In a recent case it has been held that evidence of sub- 
 sequent alterations may be given by the plaintiff to show 
 that a diagram of a building presented by the defendant 
 did not show the situation at the time of the accident* 
 
 § 244. Proof of condition of sidewalk at other places. — • 
 It is the ordinary rule to require proof of the particular 
 defect in & sidewalk which it is claimed caused the injury 
 to plaintiff, and it is usually error to admit testimony of 
 defects in other places.^ But in some instances it has 
 
 1 in Clappei v. Town of Waterford, 
 30 N. E. Rf p. 240 (1892), O'Brien, 
 J., says: "On the trial the plaintiff 
 was permitted to prove, against the 
 defendant's objection and exception, 
 that the commissioner of highways of 
 the town was seen repairing the walk 
 several days subsequent to the acci- 
 dent. It was stated by the plaintiff's 
 counsel that this evidence was oflEered 
 only for the purpose of showing that 
 the highway commissioner exercised 
 control over the walk where the acci- 
 dent occurred, and that he had funds 
 in his hands at the time of the acci- 
 dent to repair it, and the evidence 
 was received for this purpose. When 
 actions of this character were brought 
 agiainst the commissioner of high- 
 ways personally, before the statute, it 
 is possible that such testimony might 
 have been held competent (Morrell 
 V. Peck, 88 N. Y. 398); but now the 
 action is against the town, and it is 
 difficult to see how the acts of the 
 commissioner subsequent to the ac- 
 cident can be admitted in such an 
 action as proof to bind the town for 
 any purpose. It has frequently been 
 held that the declarations , or admis- 
 sions of a public officer cannot be 
 gi.en in evidence to bind a municipal 
 
 corporation of which he is the agent 
 unless they are part of the res gestae, 
 (Cortland Co. v. Herkimer Co., 44 N. 
 Y. 22 ; Luby v. Railroad Co., 17 N, 
 Y. 131 ; Hamilton v. Railroad Co., 51 
 N. Y. 100, 105); and, if his declarations 
 cannot be admitted, the same princi- 
 ple would exclude his acts subsequent 
 
 to the event in controversy 
 
 Upon whatever pretense such evi- 
 dence is put into the case, it is gen- 
 erally used to mislead the jury. It is 
 sometimes accepted by them as an 
 admission of negligence, and its nat- 
 ural tendency is undoubtedly to in- 
 fluence them in that direction., 
 Whether the defendant was negli- 
 gent was a question to be decided 
 upon the facts as they existed at the 
 time of the injury, and anything that 
 was done by the commissioner after- 
 ward could have no legitimate bear- 
 ing on the question ; and, since the 
 action now lies against the town, 
 such testimony should be excluded. 
 Corcoran v. Village of Peekskill, 108 
 N. Y. 151, 15 N. E. Rep. 309." 
 
 ^ McRickard v. Flint, 122 N. Y. 
 222, 21 N. E. Rep. 153 (1889). 
 
 ' Fuller v. Jackson, 82 Mich. 480, 
 46 N. W. Rep. 721 (1890); Shelby v. 
 Clagett, 46 Ohio St. 543 (1889), w- 
 
§244 EVIDENCE. 487 
 
 been held that proof of a general character may be sub- 
 stituted for specific proof of a particular defect. Thus, 
 where the offer was to prove the defective condition of a 
 walk extending over an isntire block, it was held that the 
 offer should have been accepted.' ' 
 
 Arid evidence of generalwant of repair, with reason, 
 has been held to be competent,* for it shows a breach of 
 duty by the corporation, and is some evidence of the par- 
 ticular defect. And if the walk at the place of the injury 
 in any case was in good condition, this fact could be 
 easily shown by other testimony. But proof that a side- 
 walk is defective a block away from the place of the in- 
 jury is incompetent,^ and it is only when the proof tends 
 to show a general defect of the same character as the par- 
 ticular defect, or one which will warrant an inference 
 of the, existence of the particular defect, that it should be 
 received.* 
 
 . Evidence of the condition of a walk after an accident 
 .may sometimes be given.' 
 
 But witnesses cannot give opinions as to whether a 
 sidewalk is reasonably safe ; they must testify to facts 
 
 pra, p. 364, note; Shaw v. Sun W.Rep. 33(1891); Ruggles v. Nevada, 
 
 Prairie,' 74 Wis. 105. 6313.185. 
 
 ■In McConnell V. The City of ^ O'Neil v. West Branch, 81 Micli. 
 
 Osage, 80 la. 295 (1890), Granger, 544(1890); Campbell v. Kalamazoo, 
 
 J., says: "The plaintiff was injured 80 Mich. 655; Noyes v. Gardner, 147 
 
 by tripping on a loose board in the Maiss. 505. 
 
 walk; and. with a view to show that ^ Smith v. Township of Sherwood, 
 
 the city did or should have known of 62 Mich. 159, 28 N. W. Rep. 806; 
 
 the condition of the walk where the Tomlinson v. Derby, 43 Conn. 562. 
 
 injury occurred, she offered to prove a * See Shelby v. Clagett, 46 Ohio St. 
 
 defective condition of the walk the 543, supra, p. 364, note, 
 
 entire length of the block. The offer = Bloomington v. Osterle, 28 N. E. 
 
 was. refused. . In this thfe court erred. Rep. 1068 (1891); Munger v. Water- 
 
 The point is clearly controlled by the loo (la;),. 49 Nj W. Rep. 1028 (1891); 
 
 case of Armstrong V. Town of Ack- Parkhill v. Brighton, 61 la. 104, 15 N. 
 
 ley, 71 la. 76," W. Rep. 853 ; Berrenberg v. Boston, 
 
 See Riley V; Iowa Falls (la.), 50 N. 137 Mass. 231. 
 
488 EVIDENCE. § 245 
 
 only.^ The testimony of a policeman who examined a 
 crossing upon hearing of an accident is competent.^ 
 And evidence of resolutions of the common council or- 
 dering a sidewalk to be repaired may be given to show 
 that the city knew of the defective condition of a walk.^ 
 So the records of the signal service office are competent 
 evidence upon a question relating to the character of a 
 storm at a particular time.^ 
 
 § 245. General features of defendant's case. — Municipal 
 corporations are always excused from the effects of their 
 negligence in the performance of governmental acts. If, 
 therefore, a municipality can show that the neglect for 
 which the plaintiff seeks to recover was in the perform- 
 ance of a governmental duty, it defeats the claim against 
 it ; and as we have heretofore seen, there is a sharp contest 
 in the courts as to what are governmental duties. The 
 principles covering this defense have been already pre- 
 sented, and need not be discussed further.^ Where the 
 cause of action of the plaintiff is based on the violation 
 of a municipal duty these corporations have two strong 
 defenses in (i) want of notice,^ and (2) contributory 
 negligence/ And both of these defenses are urged in 
 almost every action brought against a municipality. Be- 
 yond these defenses the defendant may of course insist 
 that the damage received, or some part thereof, was not 
 the reasonable result of its negligence,* and may contest 
 the facts of the plaintiff's case in all essential particulars. 
 The defense that there has not been compliance with the 
 
 • Eubank v. City of Edma, 88 Mo. » Smith v. Sherwood Township, 62 
 
 650 ; Harris v. Clinton, 64 Mich. 447 ; Mich. 159. 
 
 Chicago V. McGiven, 78 III. 347 ; « Evanston v. Gunn, 99 U. S. 660 
 
 Benedict v. Fond du Lac, 44 Wis. (1878). 
 
 495; Cramer v. Burlington, 45 la. " Su^ra, ^ 27 ei segr., And ^ ^2 e/ seg. 
 
 627- « Supra, § 184 ei se^. 
 
 2 Daniells v. Lowell, 39 N. E. Rep. ' Supra, § 206 ei seg. 
 
 222. ' Supra, % ig^et seg. 
 
S 245 EVIDENCE. 489 
 
 Statutes of the locality where the action is brought in 
 reference to the notice of injury is also available,^ and in 
 actions for non-repair of highways municipalities some- 
 times escape liability by showing that they had no funds 
 with which to make repairs or improvements.^ 
 
 Supra, § 138. ^ Supra, % 71 et seq. See Morrill 
 
 on City Negligence, p. 230 et seq. 
 
CHAPTER XXV. 
 
 DAMAGES. 
 
 § 246. Imposing damages main punishment for negligence. 
 
 247. Damages to be reasonable result of negligence. 
 
 248. Exemplary damages. 
 
 249. Actions for personal injuries. 
 
 250. Loss of time and expenses of illness compensation for injury, 
 
 251. Decrease in capacity to work prospective. 
 
 252. Bodily disfigurement and pain prospective. 
 
 253. Mental suffering. 
 
 254. Injury from fright. 
 
 255. Aggravating damage by negligence. 
 
 256. Physician's negligence. 
 
 257. Action for death. 
 
 258. Action for loss of service of another. 
 
 259. Action for injuries to property. 
 
 260. Evidence of damages. 
 
 261. Excessive damages. 
 
 262. Limitations. 
 
 § 246. Imposing damages main punishment for nej 
 gence.— The principle of right that allows one person 
 recover for the wrong done him by another is of ancie 
 origin and has been accepted as essentially just. Ii 
 well-known case ' it was said by Lord Campbell : " I c( 
 ceive that by the law of Scotland-, as well as by the 1 
 of England, and, I believe, by the law of every civiliz 
 country, where damage is sustained by one man fr< 
 the wrong of another, an action for compensation 
 given to the injured party against the wrong-doer." Ai 
 as we have endeavored- to show in a former part of t 
 
 ' Ferguson v. Earl of KinnouU, 9 CI. & F. 251. See Farwell v. Bos 
 etc. Railroad Co., 45 Mass. 49. 
 
§ 247 DAMAGES. 49 1 
 
 volume, this rule applies with full force to injuries occa- 
 sioned individuals by the negligence of municipal cor- 
 porations.^ No public remedy adequately fills the place 
 of an action for damages, for the wrong suffered is not 
 righted by the punishment of the offender. And no 
 Other remedy is so likely to prevent wrong-doing, as the 
 enforcement of this one depends solely upon the will and 
 the interest of the person who has been injured. Depriving 
 individuals, therefore, of their individual action for damr 
 ages for injuries received by the negligence of municipal 
 corporations — as has been done in some localities by the 
 combined force of statutes and decisions^ — is discarding 
 the best known means of remedying a wrong of this char- 
 acter, and of hindering the commission of other similar 
 wrongs. By the prevailing rules, however, municipali- 
 ties are usually held, either by decisions of the courts or 
 by statute, to an adequate observance of the general 
 principle governing the enforcement of damages by an 
 action on the case.^ 
 
 § 247. Damages to be reasonable result of negligence. — 
 In the chapter on proximate cause, the question of the 
 necessary connection between negligence and damage has 
 been discussed.* The essential fact, as we have seen, is 
 that the damage shall follow as a reasonable result of the 
 negligence. To say that the result should be such as 
 " under the surrounding circumstances of the case might 
 and ought to have been foreseen by the wrong-doer,"® or 
 that it should be such as a "prudent and experienced 
 man, fully acquainted with all the circumstances which in 
 fact existed, whether they could have been ascertained by 
 
 ' Supra, % 58." 104 Pa. 306. See Schmidt v. Mitchell, 
 
 .'Compare supra, §§ 131, 133. 84 111. 195 i Greenland v. Chaplin, 5 
 
 'See supra, § 193 <?/ seq. Exch. 248 ; Whittaker's Smith on 
 
 • Supra, % S7. Neg., p. 47°. 
 . ? Pittsburgh, etc. R. Co., v. Taylor, 
 
492 DAMAGES. § 248 
 
 reasonable diligence or not, would, at the time of the 
 negligent act, have thought reasonably possible to follow, 
 if they had been suggested to his mind," ' seems to be 
 looking at the result from the wrong standpoint. Why 
 should the question of what may be expected to flow 
 from a certain action be mooted at all, when it is proved 
 by facts that certain results have followed upon it ? The 
 facts themselves give evidence of the reasonableness of 
 the result, and new facts might show that a result was 
 entirely reasonable, which, looked at from the standpoint 
 of the accident, would seem entirely unreasonable in any 
 shape that they might, in imagination, be presented to 
 the " reasonable man." The inquiry is, is the result shown 
 a reasonable result of the negligence proven ? and if infer- 
 ences of fact on this question are contradictory, the an- 
 swer to the inquiry rests with the jury. And there seems 
 to be no reason why they, looking at the circumstances 
 of the injury, the negligence of the defendant and the 
 damages which have resulted, should not decide the ques- 
 tion, as reasonable men would decide it in view of all 
 these facts and circumstances.^ 
 
 § 248. Exemplary damages. — The subject of exemplary 
 damages has little, if any, connection with the respon- 
 sibility of municipal corporations for negligence. These 
 damages being designed for punishing more culpable 
 wrongs than ordinary negligence, apply rather to cases of 
 wanton wrong-doing, or a violation of duties which rest 
 upon railway corporations for the public benefit, and the 
 violation of which often causes disastrous consequences.^ 
 
 > Sheannan and Redfield on Neg., ' Sedgwick on Damages, 8th ed., 
 
 § 739- Compare §§ 28, 29. § 379 ; see note to Strieker v. Leathers 
 
 « See Schumaker V. St. Paul, etc. R. (Miss.), 13 L. R. A. 600 (1891). 
 
 Co. (Minn.), 12 L. R. A. 257 (1891) ; In Chicago v. Kelly, 69 111. 475, 
 
 Hill V. Winsor, 118 Mass. 251 (1875); where the injuries did not appear to 
 
 Ehrgott V. New York, 96 N. Y. 264 be permanent, Mr. Justice Scott says: 
 
 ('^^4). "The jury returned a verdict for 
 
§248 
 
 DAMAGES. 
 
 493 
 
 In some cases it has been decided that these damages will 
 never be allowed against a municipality.^ But in others 
 
 $4,050, upon which the court entered 
 a judgment. It seems to us the dam- 
 ages found are out of all proportion to 
 the injury sustained. It is difficult to 
 understand upon what principle the 
 jury made the assessment at so large 
 a sum. They must have misappre- 
 hended the true rule for assessing 
 damages against municipal corpora- 
 tions. The doctrine is well settled, 
 in this State at least, that only com- 
 pensatory damages can be allowed. 
 Vindictive or punitive damages are 
 not to be given unless there is proof 
 that the injury is willful, which is 
 scarcely possible in the case of this 
 class of corporations. 
 
 " It will not be insisted in this case 
 the negligence of the city authorities 
 was so g^oss as to be willful. All the 
 witnesses concur in saying it was dif- 
 ficult to discover the sidewalk was in 
 a dangerous condition. The casualty 
 may be attributed in a large measure 
 to mere accident. The parties might 
 have passed there ever so frequently 
 and with entire safety. The authori- 
 ties whose duty it is to prepare walks, 
 ought, perhaps, to have discovered 
 the defect and repaired it. It was not 
 of such a character from which willful 
 negligence could be inferred. The 
 facts in the case would not authorize 
 a verdict for other compensatory 
 damages, and the damages actually 
 sustained are certainly very much less 
 than the amount found. 
 
 " Fisher's case, 53 III. 470, is suf- 
 ficiently analogous to the case at bar 
 to be an authority in point. The 
 action was against a municipal cor- 
 poration, for personal injuries. There 
 was evidence tending to show some 
 permanent injury, but to no very g^eat 
 extent. A verdict for $3,000 was held 
 
 to be excessive, and the judgment, for 
 that reason, was reversed. 
 
 " The City of Chicago v. Langlass 
 etux., 52 III. 256, is also an analogous 
 case. The judgment was for $4,750, 
 and it was reversed, on the ground 
 the damages found were excessive, 
 and that the jury must have given 
 exemplary damages. 
 
 " We feel satisfied the jury in this 
 case could not find the compensatory 
 damages suffered by appellee, from 
 the evidence, to be so great as stated 
 in the verdict, and we must therefore 
 conclude they ha\e awarded, in some 
 manner, exemplary damages." 
 
 ' In Wilson v. City of Wheeling, 19 
 W. Va. 323 (1882), Haymond, J., said : 
 " The court instructed the jury further 
 as follows : ' Should the jury find for 
 the plaintiff, they are to determine the 
 amount of damages to which she is 
 entitled. No rule of measurement 
 can be laid down by the court. They 
 will look at the case as developed by 
 the evidence, at the injury, its nature, 
 extent.and probable consequences,and 
 the pain and suffering endured in con- 
 sequence thereof, and any expense she 
 may have incurred in and about her 
 cure, and give such verdict as they in 
 the exercise of a sound judgment may 
 deem her entitled to as a compensa- 
 tion therefor.' To this instruction as 
 well as the preceding instructions in 
 defendant's said bill of exceptions 
 number seven, the defendant objected. 
 I am free to say, I do not like the lan- 
 guage in which a part of this instruc- 
 tion is couched. The language of the 
 court to the jury, that 'no rule of 
 measurement (evidently meaning 
 measurement of damages in such a 
 case) can be laid down by the court,' 
 is equivalent to saying to the jury, that 
 
494 
 
 DAMAGES. 
 
 §248 
 
 the judges speak more guardedly. And the rule that corn- 
 pensatory damages only are to be recovered, does not 
 mean that they shall not be subject to damages for bodily 
 injury and pain occasioned by their negligence, In a 
 recent case in Alabama, where this question was before 
 the court in an action against a city,^ Mr. Justice 
 Walker said : 
 
 the law furnished no legal measure- 
 ment save the discretion of the jury in 
 such a case. I do not understand 
 this to be a sound exposition of the 
 law in a case brought against a mu- 
 nicipal corporation for an injury sus- 
 tained by an individual by reason of 
 such corporation failing to keep one 
 pf its streets in repair, etc. The case 
 would be exceptional indeed, when 
 the plaintiff could properly recover 
 vindictive, punitive, or exemplary or 
 more than actual or compensatory 
 damages. Under the language of the 
 court as given to the jury, the jury 
 might well have been misled into the 
 belief, that they were at liberty and 
 had the discretion to give exemplary 
 or vindictive damages against the de- 
 fendant, and that the law furnished no 
 legal measurement for damages in 
 such cases. The city is not a spoliator 
 atid should not be visited.by vindictive 
 or punitive damages. Whatever may 
 be the rule in cases for injuries as 
 against railroad companies and cor- 
 porations of a private character and 
 without reference to them, it seems to 
 tne, that in cases against municipal 
 corporations for injuries sustained by 
 individuals by the failure of such 
 municipal corporations to keep their 
 Streets in repair and the like, there ig. 
 a rule for the measurement of the 
 damages which the plaintiff is entitled 
 to recover, and by which the jury 
 must be governed in the ascertain- 
 
 ment of such damages, and that rule 
 , is substantially, that the damages 
 must be measured by the loss of time 
 during the cure and expense incurred 
 in respect of it, the pain and suffering 
 undergone by the plaintiff, and any 
 permanent injury, especially when, it 
 causes a disability for further exertiQq 
 in whole or part and consequenj 
 .pecuniary loss. Vindictive or pui\itive 
 damages ought not to be recovered- in 
 cases of this character. City of 
 Chicago v. Langlass et ux., 52 illl; 
 256 ; The City of Chicago v. Martin 
 et ux., 49 111. 241, 246 ; 2 Dill, on 
 Corp., S. 789, p. 919. 
 
 " It is true, that the latter part of 
 this- instruction is better, and, I think, 
 would not of itself be objectionable ; 
 but I do not think it cures or changes 
 the meaning of that which immedi-. 
 ately precedes it so as to make it clear 
 to the jury that they must confine 
 themselves to actual or compensatory 
 damages. Taking all the parts of 
 this instruction together, it seems to 
 me that they are so worded that in 
 their connection one with the otherj 
 and as a whole, they tended to confuse 
 and mislead the jury in making up 
 their verdict as to the damages they 
 might lawfully award. I think it would 
 be; a dangerous precedent for this 
 court to affirm this instruction as 
 given." 
 
 ' Birmingham v. Lewis, 9 So. Rep. 
 243(1891), 
 
§ 2.45 DAMAGES; 
 
 495 
 
 " In the amount of' damages; awarded to appellee by 
 the judgment of the Circuit Court we discover nothing 
 of which appellant has just reason, to complain. It may 
 be, in a case like this orie,. vindictive; damages are not 
 recoverable against a municipal corporation. If, how- 
 ever, in consequence of the negligence of the city authori- 
 ties, personal injuries are suffered involving physical pain 
 or loss of health, due compensation therefor is not to be 
 denied because of the public character of the corpora- 
 tion. .... The impossibility in such cases of definitely 
 measuring the damages by a money standard is no reason 
 for denying to the injured person the only, relief the 
 courts can afford. The authorities recognize bodily pain 
 and disfigurement as items for which compensation is to 
 be made in the assessment of damages for personal in- 
 juries,'" ^ 
 
 §249. Actions for personal injuries. — Actions to recover 
 flartiages for personal injuries caused by omissions of 
 duty are those in regard to which the courts are most 
 frequently called upon to assert the principles that govern 
 the amount of damage that can be recovered from mu- 
 nicipalities. And the principles adopted to apply to 
 cases of this character are not different from those which 
 control in actions for personal injuries brought against 
 private corporations, the general rule in all such cases 
 being that the plaintiff is entitled to receive adequate 
 and reasonable compensation for his injury. He is to be 
 reimbursed for all the actual money loss he has suffered. 
 Whether actual or prospective, and he is also to be com' 
 
 ' Citing, Barbour Co. v. Horn, 48 wick on Damages,' '8th . ed., § 379; 
 Ala.' 566-577 ; Mason v. Ellswortji, Parsons v. Lindsay, , 26 Kas.. 426; 
 32 Me. 271, 5 Amer. & Eng. Enc; Hunt -v. Booneville, 65 Mo. 620; 
 tzvr 42 ; 2 Sedg. Dam., 7th ed., 543, Prosser v. Ottumwa, 47 la. 509 ; Cen- 
 note a. See also Dillon on Munic. ■ treville v. Woods, 57 Ind. 192; Lar- 
 Corp., 4th ed., § 1020, note ; Sedg- son v. Grand Forks,- 3 Dak. 307. 
 
496 DAMAGES. § 249 
 
 pensated for the physical injury that has been done him, 
 and for the bodily and mental suffering which has ac- 
 companied this injury. These general elements of dam- 
 age were clearly stated in a recent Michigan case,' in 
 which the charge of the judge to the jury was quoted as 
 follows : 
 
 " In estimating the compensatory damages in cases of 
 this character, all the consequences of the injury, future 
 as well as past, are to be taken into consideration, includ- 
 ing the bodily pain which is shown by the proof to be 
 reasonably certain to have naturally resulted from the 
 injury. The injured party, when entitled to recover, 
 should be awarded compensation for all the injuries, past 
 and prospective. These are intended to include and em- 
 brace indemnity for actual nursing and medical expenses ; 
 also for loss of power, or loss of capability to perform 
 ordinary labor, or capacity to earn money, and reason- 
 able satisfaction for loss of physical powers. The ele- 
 ments of damages which the jury are entitled to take 
 into account consist of all effects of the injury com- 
 plained of, consisting of personal inconvenience, the. 
 sickness which the plaintiff endured, the loss of time, all 
 bodily and mental suffering, impairment of capacity to 
 earn money, the pecuniary expenses, the disfigurement 
 or permanent annoyance which is liable to be caused by 
 the deformity resulting from the injury; and, in consid- 
 ering what would be a just sum in compensation for the 
 sufferings or injury, the jury are not only at liberty to 
 consider the bodily pain, but the mental suffering, anx- 
 iety, suspense, and fright may be treated as elements of 
 the injury for which damages, by way of compensation, 
 should be allowed. And as these last mentioned ele- 
 ments of damage are, in their very nature, not suscepti- 
 
 ' Sherwood v. Railway Co., 82 Mich. 374 (1890). 
 
§ 250 DAMAGES. 4g7 
 
 ble of any precise or exact computation, the determina- 
 tion of the amount is committed to the judgment and 
 good sense of the jury. And if you find for the plain- 
 tiff, such sum should be awarded as will fairly and fully 
 compensate her for all damages which she has sustained, 
 consisting of the elements referred to, not exceeding in 
 amount the sum claimed in the declaration." And the 
 court added : " We see no error in this charge. It is 
 fully supported by the rulings of this court." ^ These 
 several elements of damage may be briefly summarized 
 as follows : Loss of time and expenses of illness ; de- 
 crease in capacity to work ; bodily disfigurement and 
 pain ; and mental suffering. 
 
 § 250. Loss of time and expenses of illness. — The dam- 
 ages recovered for loss of time and to compensate the 
 plaintiff for the expenses incidental to his illness are in 
 the nature of an indemnity to him for his actual pecuni- 
 ary loss. They are, therefore, dependent upon proof by 
 the plaintiff^ of the value of his time and of the expenses 
 
 ' See Geveke v. Railroad Co., 57 is no mathematical rule by which his 
 
 Mich. 596, 24 N. W. Rep. 678 ; losses can be estimated, and it is a 
 
 Power V. Harlow, Id. 116, 23 N. W. matter for sound judgment in this as 
 
 Rep. 610. in all cases." 
 
 In District of Columbia v. Wood- '■' In Montgomery, etc. Ry. Co. v. 
 bury, 136 U. S. 450, the following Mallette (Ala.), 9 So. Rep.363 (1891), 
 charge of the trial judge was upheld: McClellan, J., said : "There was no 
 "The rule laid down in the instruc- evidence in the case as to any pecu- 
 tions asked on the part of the. plain- niary loss resulting to the plaintiff 
 tiff is to the effect that the plaintiff is from inability to pursue his avoca- 
 entitled to recover, if he is entitled to tions in consequence of the injury 
 recover at all, for his loss of time, complained of. It appears that he 
 the expenditure of money made nee- was general manager of a corporation 
 essary by his injury, and compensa- engaged in the saw-mill business, and 
 lion for his suffering in body and received a salary for his services in 
 mind, and his whole condition and that capacity. He was prevented by 
 prospects are to be considered in the injury from performing those ser- 
 case you find a verdict in his favor, vices for a month or two, but it no- 
 It is impossible for me to say what where appears that his salary was not 
 the compensation should be, as there paid, or was diminished to any ex- 
 32 
 
498 
 
 DAMAGES. 
 
 § 250 
 
 which he has necessarily incurred. And if no evidence 
 is given of the different items, nominal damages only will 
 be recovered.* Upon the question of the plaintiff's loss in 
 
 tent, for that period. Neither does it 
 appear that he in any other way sus- 
 tained any money loss from the loss 
 of his time. Non constat but that 
 during this period, and notwithstand- 
 ing his disability, he received fully as 
 much as he would have done had he 
 not been disabled at all. Yet a 
 charge of the court to which a special 
 exception was reserved assumes that 
 he was personally damaged by this 
 loss of time, and authorizes the jury 
 to include in their verdict damages 
 not only for pain and suffering, phy- 
 sician's bills, permanent inconven- 
 ience, and depreciation of his capacity 
 to earn a livelihood resulting from the 
 stiffening of his arm, but also for the 
 time lost from his employment. This 
 part of the charge was manifestly bad, 
 and we are unable to see how its 
 tendency to prejudice the defendant 
 could have been met and cured by a 
 qualifying instruction which appellee 
 insists the appellant should have asked. 
 The only possible cure would have 
 been its withdrawal from the jury, 
 and this action the defendant suffi- 
 ciently invoked by excepting to it." 
 
 ' In Leeds v. Metropolitan Gas 
 Light Co., 90 N. Y. 26 (1882), Finch, 
 J., says : " The plaintiff was injured 
 by an explosion of gas in the cellar or 
 vault of the house occupied by him, 
 and which had escaped from a break 
 in the defendant's main. The char- 
 acter of his injuries was described by 
 the evidence, and among other things 
 it was proved that he was engaged in 
 business at the time of the injury, but 
 had not been able to attend to busi- 
 ness since. It was not shown what 
 his business was, or the value of his 
 
 time, or any facts as to his occupa- 
 tion from which that value could be 
 estimated. The jury were left to 
 guess or speculate upon this value 
 without any basis for their judgment, 
 so far as loss of time was an element 
 of the damages awarded. The court 
 charged that the plaintiff, if entitled 
 to a verdict, was ' entitled to recover 
 compensation for the time lost in con- 
 sequence of confinement to the house, 
 or in consequence of his disability to 
 labor from the injury sustained.' 
 The defendant's counsel excepted to 
 this portion of the charge, assigning 
 as a reason or ground of the excep- 
 tion, that there was no proof in the 
 case of the value of such time. The 
 answer made on behalf of the plaintiff 
 is a criticism on the form of the ex- 
 ception. It is said that ' as the de- 
 fendant's counsel did not ask the 
 court to instruct the jury that there 
 was no evidence of the value of plain- 
 tiff's time, the only question here 
 raised is whether the proposition 
 charged is law.' It was not necessary 
 to make that request. The court had 
 charged, in a case where no value of 
 lost time had been shown, and no 
 facts on which an estimate of such 
 value could be founded, that compen- 
 sation for such lost time could be 
 awarded by the jury. The exception 
 was aimed at that precise proposition, 
 and the ground upon which it was 
 claimed to be erroneous was definite-, 
 ly pointed out. The charge, there-; 
 fore, can only be defended upon two 
 grounds : either that evidence of the 
 value of the lost time was given, or, 
 if not, that the jury were at liberty to 
 guess at and speculate upon that 
 
§250 
 
 DAMAGES. 
 
 499 
 
 this respect all evidence tending to show the amount of his 
 actual earnings, and the manner in which he has been ac- 
 customed to spend his time, is competent.^ All reason- 
 
 value, and estimate it as they pleased. 
 The first ground we have shown to 
 be untenable, and the exception con- 
 sequently requires us to determine the 
 second. In very numerous actions 
 for negligence, both those where death 
 had resulted, and which were prose- 
 cuted under the statute, and those 
 for injuries not resulting in death, 
 evidence showing the occupation or 
 business of the injured party and 
 tending to establish his earning power 
 has been held competent and mate- 
 rial. Grant v. City of Brooklyn, 4J 
 Barb. 384 ; Masterton v. Village of 
 Mt. Vernon, 58 N. Y. 391 ; Beisiegel 
 V. N. Y. Cent. R.R. Co., 40 Id. 10. 
 And that is so because the element of 
 damages which consists of lost time 
 is purely a pecuniary loss or injury, 
 and for such only fair and just com- 
 pensation must be given, and the jury 
 have no arbitrary discretion, but must 
 be governed by the weight of evi- 
 dence. Mclntyre v. N. Y. Cent. R.R. 
 Co., 37 N. Y. 289. The rule of recov- 
 ery is compensation. Where the loss 
 is pecuniary and is present and actual 
 and can be measured, but no evidence 
 is given showing its extent, or from 
 which it can be inferred, the jury can 
 allow nominal damages only. Sedg- 
 wick on Damages, chap. 2, p. 47; 
 Brantingham v. Fay, I Johns. Cas. 
 264; N.Y. Dry Dock Co. v. Mcin- 
 tosh, 5 Hill 290. In the present case 
 the jury knew simply that time was 
 lost by reason of incapacity to labor. 
 They were bound to consider it of 
 some value, but could not go beyond 
 nominal damages, and give compen- 
 sation for it upon an arbitrary stand- 
 ing of their own. This they were 
 
 permitted to do. Without proof of 
 the extent or character of the plain- 
 tiffs pecuniary loss, they were left to 
 fix it as they pleased. Among the 
 elements of damage in cases of injury 
 for negligence, is the cost of the cure, 
 the bills and expenses of medical at- 
 tendance. Suppose that the bare 
 facts were shown that the deceased 
 had a doctor, but the length of his at- 
 tendance was not given, the amount 
 of his charges not shown, would it do 
 to permit the jury to give compensa- 
 tion for the costs of the cure upon 
 their own guess or speculation as to 
 its amount ? For pain and suffering, 
 or injuries to the feelings, there can 
 be no measure of compensation save 
 the arbitrary judgment of a jury. But 
 that is a rule of necessity. Where 
 actual pecuniary damages are sought, 
 some evidence must be given showing 
 their existence and extent. If that is 
 not done, the jury cannot indulge in 
 an arbitrary estimate of their own." 
 See Baker v. Manhattan R. Co., 118 
 N. Y. 533 (1890).^ 
 
 ' In District of Columbia v. Wood- 
 bury, 136 U. S. 450, it was said : "All 
 evidence tending to show the char- 
 acter of his ordinary pursuits, and the 
 extent to which the injury complained 
 of prevented him from following those 
 pursuits, was pertinent to the issue. 
 Wade V. Leroy, 20 How. 34; Ne- 
 braska City V. Campbell, 2 Black 590; 
 Vicksburg, etc. Railroad Co. v. Put- 
 nam, 118 U. S. 545- 554; City of 
 Ripon V. Bittel, 30 Wisconsin 614; 
 Ballow V. Famum, 1 1 Allen 73 ; Cald- 
 well V. Murphy, i Duer 233, S. C. I 
 Kernan (5 N. Y.) 416." 
 
coo DAMAGES. § ^5^ 
 
 able expenses will be allowed as incidental to the cure 
 of the plaintiff, which were incurred by him for the pur- 
 pose of regaining his health. The amount paid physi- 
 cians and nurses, and the amount which it is reasonable 
 to conclude will have to be paid in the future, if the 
 injury is of a permanent character, may all be proved, 
 and may be recovered from the defendant.^ 
 
 § 251. Decrease in capacity to work. — But the actual 
 loss of time that plaintiff has suffered is not all that is to 
 be taken into account in indemnifying him for his pecu- 
 niary loss. If the injury is such that his capacity to work 
 has been lessened, he must be compensated for this pros- 
 pective loss. As has been said by the leading writer upon 
 this subject : 
 
 " Compensation should be given for permanent disa- 
 bility or loss of capacity for labor. And in ascertaining 
 the proper amount in case of disability, the jury may take 
 into consideration the nature of the plaintiff's previous 
 occupation, and the kind and amount of physical and 
 mental labor to which he has been accustomed."^ 
 
 ' Kendall v. City of Albia, 73 la. the ground of the insufficiency of the 
 
 241 (1887); Sedgwick on Damages, damages as well as on that of misdi- 
 
 8th ed., § 483; Shearman and Red- rection as having led to an insufficient 
 
 field on Neg., § 759. assessment of damages ; and we are of 
 
 ' Sedgwick on Damages, 8th ed., opinion that the rule for a new trial 
 
 §485- must be made absolute — not, indeed. 
 
 See Corts v. District of Colufnbia, on the ground of misdirection, for we 
 
 7 Mackey 277 (1889). are unable to find any misdirection, 
 
 In Phillips V. South Western Rail- the learned judge having in effect left 
 way Co., L. R. 4 Q. B. D. 406 (1879), the question of damages to the jury, 
 Cockburn, C. J., said : " This was an with a due caution as to the limit of 
 action brought by the plaintiff to re- compensation, though we think it 
 cover damages for injuries suffered might have been more explicit as to 
 when traveling on the defendant's the elements of damage, 
 railway through the negligence of their " It is extremely difficult to lay down 
 servants. A verdict having passed for any precise rule as to the measure of 
 the plaintiff with ;£7,ooo damages, an damages in cases of personal injury 
 application is made to this court for a like the present. No doubt, as a gen- 
 new trial on behalf of the plaintiff on eral rule, where injury is caused to 
 
§251 
 
 DAMAGES. 
 
 501 
 
 Annuity tables may be looked to in order to ascer- 
 tain the probable duration of the plaintiff's life; but these, 
 with all the circumstances and facts of the case, are to be 
 
 one person by the wrongful or negli- 
 gent act of another, the compensation 
 should be commensurate to the injury 
 sustained. But there are personal in- 
 juries for which no amount of pecu- 
 niary damages would afford adequate 
 compensation, while, on the other 
 hand, the attempt to award full com- 
 pensation in damages might be at- 
 tended with ruinous consequences to 
 defendants who cannot always, even 
 by the utmost care, protect themselves 
 against carelessness of persons in their 
 employ. Generally speaking, we agree 
 with the rule as laid down by Brett, J., 
 in Rowley v. London & North West- 
 ern Ry. Co., L. R. 1 Ex. 231, an ac- 
 tion brought on the 9 and 10 Vict, 
 c. 93, that a jury in these cases ' must 
 not attempt to give damages to the 
 full amount of a perfect compensation 
 for the pecuniary injury, but must 
 take a reasonable view of the case, 
 and give what they consider, under 
 all the circumstances, a fair compen- 
 sation.' And this is in effect what 
 was said by Mr. Justice Field to the 
 jury in the present case. But we think 
 that a jury cannot be said to take a 
 reasonable view of the case unless 
 they consider and take into account 
 all the heads of damage in respect of 
 vyhich a plaintiff complaining of a per- 
 sonal injury is entitled to compensa- 
 tion. These are, the bodily injury sus- 
 tained; the pain undergone ; the effect 
 on the health of the sufferer according 
 to its degree and its probable dura- 
 tion as likely to be temporary or per- 
 manent; the expenses incidental to at- 
 tempts to effect a cure or to lessen the 
 amount of injury ; the pecuniary loss 
 sustained through inability to attend 
 
 to a profession or business as to 
 which, again, the injury may be of a 
 temporary character, or may be such 
 as to incapacitate the party for the 
 remainder of his life. If a jury have 
 taken all these elements of damage 
 into consideration, and have awarded 
 what they deemed to be fair and rea- 
 sonable compensation under all the 
 circumstances of the case, a court 
 ought not, unless under very excep- 
 tional circumstances, to disturb their 
 verdict. But, looking to the figures 
 in the present case, it seems to us that 
 the jury must have omitted to take 
 into account some of the heads of 
 damage which were properly involved 
 in the plaintiff's claim. 
 
 " The plaintiff was a man of middle 
 age and of robust health. His health 
 has been irreparably injured to such 
 a degree as to render life a burden 
 and source of the utmost misery. He 
 has undergone a great amount of pain 
 and suffering. The probability is that 
 he will never recover. His condition 
 is at once helpless and hopeless. The 
 expenses incurred by reason of the 
 accident have already amounted to 
 ;£ 1,000. Medical attendance still is 
 and is likely to be for a long time 
 necessary. He was making an in- 
 come of ;£5,ooo a year, the amount 
 of which has been positively lost for 
 sixteen months between the accident 
 and the trial through his total inca- 
 pacity to attend to his professional 
 business. The positive pecuniary loss 
 thus sustained all but swallows up 
 the greater portion of the damages 
 awarded by the jury. It leaves little 
 or nothing for health permanently de- 
 stroyed and income permanently lost. 
 
502 
 
 DAMAGES. 
 
 251 
 
 put before the jury without positive direction from the 
 eourt.^ 
 
 We are therefore led to the conclu- 
 sion, not only that the damages are 
 inadequate, but that the jury must 
 have omitted to take into considera- 
 tion some of the elements of damage 
 which ought to have been taken into 
 account." 
 
 ' In Vicksburg, etc. Railroad Co. v. 
 Putnam, 118 U. S. 545 (1886), Mr. 
 Justice Gray said ; " In an action for 
 a personal injury, the plaintiff is en- 
 titled to recover compensation, so far 
 as it is susceptible of an estimate in 
 money, for the loss and damage caused 
 to him by the defendant's negligence, 
 including not only expenses incurred 
 for medical attendance, and a reason- 
 able sum for his pain and suffering, 
 but also a fair recompense for the loss 
 of what he would otherwise have 
 earned in his trade or profession, and 
 has been deprived of the capacity of 
 earning, by the wrongful act of the 
 defendant. Wade v. Leroy, 20 How. 
 34 ; Nebraska City v. Campbell, 2 
 Black 590 ; Ballou v. Farnum, 1 1 
 Allen 73 ; New Jersey Express Co. v. 
 Nichols, 3 Vroom 166, and 4 Vroom 
 430 ; Phillips V. London & South- 
 western Railway, 4 Q. B. D. 406, 5 
 Q. B. D. 78, and 5 C. P. D. 280, s. C. 
 49 Law Journal (Q. B.) 233. 
 
 " In order to assist the jury in mak- 
 ing such an estimate, standard life and 
 annuity tables, showing at any age the 
 probable duration of life, and the pres- 
 ent value of a life annuity, are com- 
 petent evidence. The D. S. Gregory, 
 2 Benedict 226, 239, affirmed 9 Wall. 
 513; Rowley v. London & North- 
 western Railway, L, R. 8 Ex. 221 ; 
 Sauter v. New York Central Railroad, 
 66 N. Y. 50 ; McDonald v. Chicago 
 & Northwestern Railroad, 26 Iowa 
 124, 140 ; Central Railroad v. Rich- 
 ards, 62 Georgia 306. 
 
 " But it has never been held that 
 the rules to be derived from such tables 
 or computations must be the absolute 
 guides of the judgment and the con- 
 science of the jury. On the contrary, 
 in the important and much-considered 
 case of Phillips v. London & South- 
 western Railway, above cited, the 
 judges strongly approved the usual 
 practice of instructing the jury in gen- 
 eral terms to award a fair and reason- 
 able compensation, taking into con- 
 sideration what the plaintiff's income 
 would probably have been, how long 
 it would have lasted, and all the con- 
 tingencies to which it was liable ; and 
 as strongly deprecated undertaking to 
 bind them by precise mathematical 
 rules in deciding a question involving 
 so many contingencies incapable of 
 exact estimate or proof. See especially 
 the opinions of Lord Justice Brett and 
 Lord Justice Cotton, as reported in 
 49 Law Journal (Q. B.) 237, 238, and 
 less fully in 5 C. P. D. 291, 293. 
 
 " In the present case, it was not 
 suggested by the defendant at the 
 trial, that the life tables admitted in 
 evidence were not standard tables, or 
 not duly authenticated. The only 
 ground assigned for the objection to 
 their competency was that ' the plain- 
 tiff had not shown a case in which 
 such evidence is admissible, the plain- 
 tiff not having been killed permanently 
 or disabled '—probably meaning ' killed 
 or permanently disabled.' It is a suf- 
 ficient answer to this objection, that 
 there was evidence from which the 
 jury might conclude that the plaintiff's 
 disability was permanent. 
 
 " But the instructions on the meas- 
 ure of damages, to which exception 
 was taken, cannot be approved. 
 
 " Those instructions were, ist, that 
 the plaintiff having lost his time, the 
 
§252 
 
 DAMAGES. 
 
 503 
 
 § 252. Bodily disfigurement and pain.— Deformity and 
 bodily disfigurement produced by an injury are also to be 
 
 presumption would be that he lost his 
 salary, and that would be an element 
 of damage which the jury could ascer- 
 tain with certainty ; and, 2d, that the 
 company was bound to give the plain- 
 tiff an annuity of the amount he had 
 been damaged by the year, for a period 
 equal to the expectation of his life. 
 
 " As the judge directed the jury to 
 add the worth of such an annuity at 
 the time of the accident to the amount 
 allowed for loss of time, including the 
 loss of salary, it would seem that the 
 jury were permitted, in making up their 
 verdict, to take into consideration 
 twice over the earnings lost by the 
 plaintiff between the time of the acci- 
 dent and the time of the trial. 
 
 " But the second instruction is open 
 to the more serious objection of requir- 
 ing the jury, in estimating the loss of 
 future income, to compute the average 
 amount of injury to the plaintiff's 
 capacity each year, even if they should 
 be satisfied, on the evidence before 
 them, that the effect of that injury 
 would vary from year to year, and 
 would be either greater or less as time 
 went on. 
 
 "A reference to the rest of the 
 charge rather strengthens than re- 
 moves this objection. At the begin- 
 ning of that part of the charge which 
 relates to this subject, the judge told 
 the jury : ' To find out what he was 
 capable of making, you must find out 
 what he did make, and then how much 
 his capacity to do his former duties 
 was injured ; and, having ascertained 
 that, find out how old he is ; then find 
 out how much he is damaged every 
 year, and then find out from the table 
 which you will have out before you 
 how much $1 of annuity to the end 
 of his expectation is worth, and mul- 
 
 tiply the three together.' In the last 
 paragraph of the charge, just before 
 the sentence excepted to, the judge 
 told the jury that, in arriving at the 
 amount of liability, they must 'find 
 out what he has been injured by the 
 year.' And finally, after causing the 
 annuity table to be marked opposite 
 forty-nine years of age, he directed the 
 jury ' to find a verdict, first, for the 
 pecuniary damage ; next, the pain, if 
 he has suffered any ; next, the loss per 
 year ; multiply by the amount you 
 find in that table, and add the three 
 together.' 
 
 " The natural, if not the necessary, 
 effect of these peremptory instructions 
 at the beginning and end of dealing 
 with this matter would be to lead the 
 jury to understand that they must ac- 
 cept the tables as affording the rule 
 for the principal elements of their 
 computation, and to create an impres- 
 sion on their minds, which would not 
 be removed by the incidental observa- 
 tion of the judge, when speaking of 
 the possibilityof the plaintiff's getting 
 well — ' This is only one mode of arriv- 
 ing at it '; especially, as it was no- 
 where, throughout the charge, sug- 
 gested to the jury that they would be 
 at liberty, if they found difficulty in 
 following the .mathematical rules pre- 
 scribed to them, to estimate the loss 
 of income according to their own 
 judgment. 
 
 " Life and annuity tables are framed 
 upon the basis of the average duration 
 of the lives of a great number of per- 
 sons. But what the jury in this case 
 had to consider was the probable dura- 
 tion of this plaintiff's life, and of the 
 injury to his capacity to earn his liveli- 
 hood. Upon the evidence before them, 
 it was a controverted question whether 
 
C04 DAMAGES. § 252 
 
 taken into account by the jury.* And in regard to these 
 and the mental suffering produced by the injury, it is 
 conceded by the courts that there is no standard by which 
 damages may be measured, — the whole question from ne- 
 cessity is left to the jury.^ They are to judge, in view 
 of the character and extent of the injury and in view of 
 the conduct of the plaintiff, how severely he has been in- 
 jured, and are to make such an allowance of damage as 
 shall seem to them to be reasonable. The following 
 broad and satisfactory statement of the rights of the in- 
 dividual in this respect has been recently made : 
 
 " It is to be assumed that every physical endowment, 
 function, and capacity is of importance in the life of 
 every man and woman, and that occasion will arise for the 
 exercise of each and all of them ; and to that extent to 
 which any function is destroyed, or its discharge rendered 
 painful or perilous by the wrongful infliction of personal 
 injury, is the party complaining entitled to damages. 
 We can, in other words, conceive of no physical injury 
 
 that injury would be temporary or per- ' Sedgwick on Damages, 8th ed., 
 manent. The instruction excepted to, 
 
 either talcen by itself or in connection * Spaulding v. Pennsylvania Co. 
 with the whole charge, tended to mis- (Pa.), 12 L. R. A. 698 (1891), 
 lead the jury, by obliging them to as- note ; Rowley v. London, etc. Ry. 
 certain the average injury to the plain- Co., L. R. 8 Ex. 221; Am. & Eng. 
 tiff's capacity by the year, whether the Encyc. of Law, vol. 16, p. 476. 
 extent of that injury would be constant In Adams v. Missouri Pacific Ry. 
 or varying; and by giving them to Co., 100 Mo. 555 (1890), where the 
 understand that the tables were not injury was a broken leg, and the 
 merely competent evidence of the plaintiff was a clergfyman sixty-seven 
 average duration of human life, and years of age, but was able after two 
 of the present value of life annuities, months to dispense with bandages 
 but furnished absolute rules which the and commence the use of his leg, it 
 law required them to apply in estimat- was held that $10,000 were excessive 
 ing the probable duration of the plain- damages. But in Dougherty v. Mis- 
 tiff's life, and the extent of the injury souri, etc. R. Co., 97 Mo. 647 (1888), 
 which he had suffered." a verdict for $12,000 to a telegraph 
 See Howes v. Ashfield, 99 Mass. operator who lost an arm by the in- 
 540 (1868). jury was sustained. 
 
§252 
 
 DAMAGES. 
 
 505 
 
 wrongfully inflicted, whether entailing pain only or dis- 
 figurement or incapacity, relative or absolute, to perform 
 any of the functions which may not be made the predicate 
 for compensation in damages." ^ 
 
 In proving the pain suffered by a person who has been 
 injured, the law allows testimony of the expressions of 
 pain made by him at the time, as there is no other 
 method of ascertaining the extent of such pain.** In 
 
 ' McClellan, J., in Alabama, etc. R. 
 Co. V. Hill (Ala.), 9 So. Rep. 722 
 (1891), citing Mayor, etc. v. Lewis 
 (Ala.), 9 South. Rep. 243. 
 
 In Columbus v. Strassner, 124 Ind. 
 482 (1890), Berkshire, C. J., said: 
 " Instruction number twenty-one was 
 erroneous, in that it informed the jury 
 that they should take into considera- 
 tion in measuring the damages which 
 they would assess, in case they found 
 for the appellee, any ' lack of personal 
 enjoyment ' occasioned by the injury. 
 In other respects we are satisfied with 
 the instruction, but in the respect 
 mentioned we are of opinion that it is 
 erroneous. Counsel for the appellee 
 have cited us to no authority in sup- 
 port of the instruction, and we have 
 found none. The question of dam- 
 ages, like other legal propositions, 
 should rest upon some substantial 
 basis. The following inquiries, there- 
 fore, suggest themselves : What is 
 ' personal enjoyment ' .'' How are we 
 to ascertain to what extent it is pos- 
 sessed by a human being ? How can 
 its absence and the cause thereof be 
 demonstrated ? If a person for any 
 cause has been deprived of ' personal 
 enjoyment,' how are we to go about 
 adjusting his loss upon a money ba- 
 sis? These questions seem to be per- 
 tinent but unanswerable, and suggest 
 an insuperable difficulty to the meas- 
 urement of damages because of loss 
 of ' personal enjoyment.' " 
 
 ^ In Bridge v. The City of Oshkosh, 
 71 Wis. 363 (1888), Taylor, J., says : 
 " Under well-established rules of law 
 applicable to cases of this kind, where 
 personal injuries to the plaintiff are 
 the subject of inquiry and the basis 
 for awarding damages, evidence of 
 the kind admitted by the court in this 
 case is clearly admissible. The admissi- 
 bility of complaints made by the injured 
 person, either to his attending physi- 
 cians or others, is clearly sustained by 
 the following authorities : Insurance 
 Co. V. Mosley, 8 Wall. 397, 405-407 ; 
 Bridge v. Oshkosh, 67 Wis. 195 ; 
 Quaife v. C. & N. W. R. Co., 48 Wis. 
 513 ; Bacon v. Charlton, 7 Cush. 586 ; 
 Barber v. Merriam, 1 1 Allen 322-324 ; 
 Hatch V. Fuller, 131 Mass. 574; i 
 Greenl. (Ev., 14th ed.), sec. 102, and 
 cases cited in note d. The propriety 
 of permitting a witness who is not an 
 expert, but who is acquainted with 
 the injured person and has seen him 
 frequently before and after the injury, 
 to testify as to any changes either in 
 his physical or mental condition, is 
 established by the following authori- 
 ties : Baker v. Madison, 62 Wis. 137 ; 
 Wright v. Fort Howard, 60 Wis. 1 19- 
 123 ; Sydleman v. Beckwith, 43 Conn. 
 9 ; Parker v. B. & H. Steamboat Co., 
 109 Mass. 449; Comm. v. Sturtivant, 
 117 Mass. 122; Thompson V. Stevens, 
 71 Pa. St. 161 ; Elliott v. Van Buren, 
 33 Mich. 49; Wilkinson v. Mosley, 
 30 Ala. 562 ; Smalley v. Appleton, 70 
 
5o6 
 
 DAMAGES. 
 
 §252 
 
 a recent opinion in Michigan the device of calling a 
 physician for the purpose of securing his testimony to 
 the exclamations of pain of a patient is condemned, 
 and it is held that evidence of this character is not ad- 
 missible.^ 
 
 Wis. 340. The evidence received 
 over the objections of the appellant 
 was properly received, and no error 
 was committed by the court in that 
 respect." See Kennedy v. Rochester, 
 etc. R. Co., 130 N. Y. 654. 
 
 ' In Jones v. Village of Portland, 
 44 Alb. L. J. 290, 50 N.W. Rep. 731, 
 Chief-Justice Campbell, in giving the 
 opinion of the court, said : " It has 
 been held several times by this court 
 that statements of pain and of its lo- 
 cality were exceptions to the rule ex- 
 cluding hearsay evidence. These 
 statements are admitted only upon 
 the ground that they are the natural 
 and ordinary accompaniments and ex- 
 pressions of suffering. It would be 
 impossible in most cases to know of 
 the existence or extent or character 
 of pain without them. They are re- 
 ceived therefore as acts, rather than 
 declarations, and admitted from ne- 
 cessity. The rule which admits dec- 
 larations of present suffering has 
 never been extended so as to include 
 declarations either of past suffering, 
 or the causes in the past of such suf- 
 fering, so as to make such statements 
 proof of the facts. Declarations con- 
 cerning the past are narratives, and 
 not facts. Exclamations of suffering 
 may be, and, if honest, are, parts of 
 the occurrence itself. It is difficult 
 to lay down any very clear line of ad- 
 mission or exclusion where the ex- 
 clamation refers to the feelings of the 
 moment. But we think it would not 
 be safe to receive such testimony in 
 any case where it is not natural and 
 ordinary pain, called out without pur- 
 
 pose or in the course of medical treat- 
 ment. The unstudied expressions of 
 daily life or the statements on which 
 a medical adviser is expected to act, 
 and which if feigned he should have 
 skill enough to subject to some test 
 of truth, stand on a footing which re- 
 moves them in general from suspicion. 
 But we cannot think it safe to receive 
 such statements which are made for 
 the very purpose of getting up testi- 
 mony, and not under ordinary circum- 
 stances. The physicians here were 
 not called in to aid or give medical 
 treatment. The case has been relin- 
 quished long before as requiring no 
 further attendance. They were sent 
 not merely to enable the plaintiff be- 
 low to prove her case. The whole 
 course of the plaintiff was taken to no 
 other end. She had in her mind 
 just what expressions her cause re- 
 quired. They were therefore made 
 under a strong temptation to feign 
 suffering if dishonest, and a hardly 
 less strong tendency, if honest, to im- 
 agine or exaggerate it. The purpose 
 of the examination removed the ordi- 
 nary safeguards which furnish the 
 only reason for receiving declarations 
 which bear in a party's own favor. 
 The general rule in regard to other 
 classes of hearsay evidence and state- 
 ments admitted upon the same prin- 
 ciple is that they must have been 
 made ante litem motam, which is in- 
 terpreted to mean not merely before 
 suit brought, but before the contro- 
 versy exists upon the facts. Stockton 
 v. Williams, Walk. Ch. 120; i Doug. 
 (Mich.) 546, citing the Berkeley 
 
253 
 
 DAMAGES. 
 
 507 
 
 § 253. Mental suffering.— It has been contended that 
 damages cannot be awarded for mental suffering even if 
 they were connected with bodily pain, but it is settled 
 that this is a proper element of the damage received by 
 the plaintiff. In a case in the United States Supreme 
 Court,' where this question arose recently, the court said : 
 
 "The authorities all agree that in cases of this char- 
 acter much latitude must be given to juries in estimating 
 the damages sustained by the person injured. Physical 
 suffering, resulting from such injuries, is necessarily at- 
 tended by mental suffering in a greater or less degree. 
 And, as said in Kennon v. Gilmer,* the action is for an 
 injury to the person of an intelligent being ; and when 
 the injury, whether caused by willfulness or negligence, 
 produces mental as well as bodily anguish and suffering, 
 it is impossible to exclude the mental suffering in esti- 
 
 Peerage Case, 4 Camp. 401 ; Rich- 
 ards V. Bassett, 10 Barn. & C. 657 ; 
 Doe d. Tilman v. Tarver, Ryan & M. 
 141 ; Monkton v. Attorney-General, 
 2 Russ. & M. 160; Whitelock v. Ba- 
 ker, 13 Ves. 514. The language of 
 Lord Eldon in Whitelock v. Baker 
 has met with general acquiescence. 
 He says : ' All are admitted upon the 
 principle that they are the natural ef- 
 fusions of a party who must know the 
 truth and who speaks upon an occa- 
 sion when his mind stands upon an 
 even position, without any temptation 
 to exceed or fall short of the truth ' 
 (page 514). It is not necessary to 
 consider whether there may not be 
 properly received in some cases the 
 natural and usual expressions of pain, 
 made under circumstances free from 
 suspicion, even post litem motam. 
 The case must at least be a very plain 
 one which will permit this. The pres- 
 ent controversy presents no such dif- 
 
 ficulty. The physicians were called 
 in, not to give medical aid, but to 
 make up medical testimony, and the 
 declarations were made to them while 
 engaged in that work. It would be 
 difficult to find a case more plainly 
 within the mischief of the excluding 
 rule. While we adhere to the rule 
 permitting such testimony in proper 
 cases, we do not feel inclined to ex- 
 tend it beyond the necessities of the 
 case nor to cases clearly within the 
 exception noted in the Huntley case. 
 .... In this State a party can testify 
 to his sensations of pain and of suffer- 
 ing, mental and physical, but a party 
 cannot be allowed to corroborate such 
 testimony by witnesses employed to 
 listen to such statements with a view 
 to a suit to be brought or pending." 
 
 ' District of Columbia v. Wood- 
 bury, 136 U. S. 450. 
 
 2 131 U. S. 22, 26, 27. 
 
5o8 
 
 DAMAGES. 
 
 253 
 
 mating the extent of the personal injury for which com- 
 pensation is to be awarded."^ 
 
 ' Citing Railroad Co. v. Barron, 5 
 Wall. 90, 105 ; Penn. & Ohio Canal Co. 
 V. Graham, 63 Penn. St. 290 ; Smith 
 V. Holcon:ib, 99 Mass. 552 ; Holyoke v. 
 Grand Trunk Railway, 48 N. H. 541 ; 
 Stockton V. Frey, 4 Gill 406; Smith 
 V. Overby, 30 Georgfia 241 ; Cox v. 
 Vanderkleed, 2i Indiana 164; Lynch 
 
 V. Knight, 9 H. L. Cas. 577 See 
 
 also Chicago v. McLean, 24 N. E. 
 Rep. 527 (1890); Sedgwick on Dam- 
 ages, 8th ed., § 47. 
 
 In Montgomery, etc. Ry. Co. v. 
 Mallette (Ala.), 9 So. Rep. 363 (1891), 
 McCIellan, J., said: "Mental suffer- 
 ing cannot be dissociated from physi- 
 cal pain. Where the latter is found, 
 the former is implied. The law fur- 
 nishes, and in the nature of things 
 can furnish, no standard by which to 
 compensate for either in money. The 
 question of compensation must be 
 submitted to the jury, who, in the ex- 
 ercise of a sound discretion, guided 
 by their views of the evidence, are to 
 return a verdict for such sum as they 
 may deem just, not in excess of the 
 amount sued for." 
 
 In Kennon v. Gilmer, 131 U. S. 
 22 (1888), Mr. Justice Gray said: 
 "The remaining exception taken at 
 the trial is to the instruction on the 
 measure of damages, by which the 
 jury were directed that they should 
 assess the general damages claimed 
 ' in such sum as will compensate the 
 plaintiff for the injury received, and 
 in so doing may take into considera- 
 tion his bodily and mental pain and 
 suffering, both taken together, but 
 not his mental pain alone, the incon- 
 venience to him of being deprived of 
 his leg, and loss of time and incon- 
 venience in attending to his business 
 generally, from the time of the injury 
 
 to the present time, such as the plain- 
 tiff may have proved, and the jury 
 are satisfied to a reasonable certainty, 
 inevitably and necessarily resulted 
 from the original injury.' 
 
 "The defendants object to this in- 
 struction, that the jury were permit- 
 ted to assess damages for mental suf- 
 fering. But the instruction given only 
 authorized them, in assessing dam- 
 ages for the injury caused by the de- 
 fendants to the plaintiff, to take into 
 consideration ' his bodily and mental 
 pain and suffering, both taken to- 
 gether' ('but not his mental pain 
 alone'), and such as 'inevitably and 
 necessarily resulted from the original 
 injury.' The instruction was in ac- 
 cord with the opinions of this court 
 in similar cases. 
 
 " In Railroad Co. v. Barron, decided 
 at December term, 1866, Mr. Justice 
 Nelson, delivering judgment, in giv- 
 ing the reasons why the damages in 
 an action brought against a railroad 
 corporation by a person injured by its 
 negligence must depend very much 
 on the good sense and sound judg- 
 ment of the jury upon all the facts 
 and circumstances of the particular 
 case, said: 'There can be no fixed 
 measure of compensation for the pain 
 and anguish of body and mind, nor 
 for the loss of time and care in busi- 
 ness, or the permanent injury to 
 health and body.' 5 Wall. 90, 105. 
 
 " The case of Mclntyre v. Giblin, 
 decided at October term, 1879, is di- 
 rectly in point. That was an action 
 to recover damages for the careless 
 and negligent shooting and wounding 
 of Giblin by Mclntyre, and the jury 
 were instructed that in computing 
 damages they might take into con- 
 sideration 'a fair compensation for 
 
§254 
 
 DAMAGES. 
 
 509 
 
 § 254. Injury from fright. — Whether there may be re- 
 covery for the effects of a nervous shock received by one 
 
 the physical and mental suffering 
 caused by the injury.' It was argued 
 in behalf of Mclntyre that the action 
 being for a negligent injury, and not 
 for a willful and malicious one, the in- 
 struction was erroneous, because the 
 words ' and mental ' were included. 
 But the Supreme Court of the Terri- 
 tory of Utah held otherwise. 2 Utah 
 384. And this court affirmed its 
 judgment, Chief-Justice Waite saying : 
 ' We think, with the court below, 
 that the effect of this instruction was 
 no more than to allow the jury to 
 give compensation for the personal 
 suffering of the plaintiff caused by 
 the injury, and that in this there was 
 no error.' " 
 
 In Kendall v. City of Albia, 73 la. 
 241 (1887), Seevers, J., said : " In the 
 eighteenth paragraph of the charge, 
 the court said to the jury : ' If you 
 find that by reason of such accident 
 the plaintiff was injured ; that he suf- 
 fered a fracture of the small bone of 
 his leg ; that he was injured internally ; 
 that he suffered injurj' to his left lung ; 
 that he was for a time insensible ; 
 that he suffered pain and mental 
 anguish ; that he suffered a shock to 
 his nervous system, — these are mat- 
 ters which you should consider in 
 assessing the amount the plaintiff is 
 entitled to recover.' It is said this 
 instruction is erroneous because the 
 jury were told that they could con- 
 sider the mental anguish suffered by 
 the plaintiff, in determining the 
 amount he was entitled to recover 
 as compensatory damages. But this 
 court has expressly held otherwise. 
 Ferguson v. Davis Co., 57 Iowa 601. 
 The court clearly, in our judgment, 
 meant, and the jury must have under- 
 stood, that such mental anguish as 
 
 was caused by the injury should be 
 considered by the jury. 
 
 " The jury were instructed that ' if 
 the plaintiff, by reason of said acci- 
 dent, suffered bodily pain and mental 
 anguish to the present, and will so 
 suffer in the future, then for such 
 pain and anguish, past, present, and 
 future, you should allow him such 
 sum as you think proper under the 
 evidence, without proof of any special 
 sum.' It is said that this instruction 
 is the same as the one condemned in 
 Fry v. Dubuque & S. W. Ry. Co., 45 
 Iowa 416, and it must be confessed 
 that there is much similarity between 
 them, but we think the instruction 
 under consideration is hardly as broad 
 as that in the cited case. But, con- 
 ceding that they are substantially 
 identical as to the recovery of future 
 damages, the court, in an instruction 
 following the one under consideration, 
 said to the jury : ' With reference to 
 future damages, you should be satis- 
 fied from the evidence that they will 
 probably be sustained by the plain- 
 tiff.' The njle is that, when the 
 charge consists of several paragraphs, 
 the whole should be read and con- 
 sidered together. Especially is this 
 so where there is more than one 
 paragraph upon the same subject. 
 That is in relation to damages. If, 
 then, the two instructions are read 
 and construed together, they are un- 
 doubtedly correct, and clearly come 
 within the rule established in Fry's 
 case. It is also objected that the 
 court instructed the jury that the 
 plaintiff could recover for future men- 
 tal anguish, and that no case can be 
 found which so holds, nor has counsel 
 cited us to a case which holds that such 
 a recovery cannot be had. If the future 
 
5l6 DAMAGES. 8 254 
 
 from the negligence of another depends upon the char- 
 acter of the damages received. If a bodily ailment re- 
 sults from the shock as its proximate cause, recovery of 
 damage should be allowed. 
 
 There does not seem to be sufificient reason for insist- 
 ing upon " impact " in the case of an accident or of bod- 
 ily injury apart from statute. For if a severe illness 
 follows upon fright, and is in fact traceable to it, and the 
 occasion of the fright was the negligence of the defend- 
 ant, there is appreciable damage which results as the nat- 
 ural effect of this negligence, and compensation should 
 be made for the injury. This question has been ably 
 considered in a recent Irish decision,^ in which a previous 
 ruling of the Privy Council was criticised. In the case 
 referred to, Palles, C. B., said : 
 
 " In summing up, my brother Andrews told the jury 
 that if great fright was, in their opinion, the reasonable 
 and natural consequence of the circumstances in which 
 the defendants, by their negligence, had placed the fe- 
 male plaintiff, and that she was actually put in great 
 fright by those circumstances ; and if the injury to her 
 health was, in their opinion, the reasonable and natural 
 consequences of such great fright, and was actually oc- 
 casioned thereby, damages for such injury would not be 
 too remote. The defendant's counsel objected to this 
 direction, and required the judge to tell the jury that if 
 the injury was the result of, or arose from, mere fright, 
 and was not accompanied by any physical injury, even 
 though there might be a nervous or mental shock occa- 
 
 mental anguish is caused by the in- recovered, we see no reason why 
 
 jury, we are unable to see why the mental anguish caused by the future 
 
 plaintiff should not be compensated condition of the injury should not be 
 
 therefor, for the same reason that considered." 
 
 damages may be recovered for such ' Bell v. Great Northern Ry. Co., 
 
 anguish suffered up to the time of trial. 26 L. R. Ir. 428 (1890). 
 
 If any damages in the future may be 
 
§ 254 DAMAGES. 5II 
 
 sioned by the fright, such damage would be too re- 
 mote. 
 
 " This objection presupposes that the plaintiff sus- 
 tained, by reason of the defendant's negligence, ' injury ' 
 of the class left to the consideration of the jury by the 
 summing up, i. e. injury to health, which is bodily or 
 physical injury ; and the proposition presented is, that 
 damages for such injury are not recoverable, if two cir- 
 cumstances occur: (i), if the only connection between 
 the negligence and this bodily injury is that the former 
 caused fright, which caused nervous or mental shock, 
 which shock caused the bodily injury complained of ; and 
 (2), that this so-called bodily injury did not accompany 
 the fright, which I suppose means that the injury, although 
 in fact occasioned by the fright, assumed the character of 
 bodily injury subsequently to, and not at the time of, the 
 negligence or fright. To sustain this contention, it must 
 be true whether the shock which it assumed to have been 
 caused was either mental or nervous ; and as the intro- 
 duction of the word ' mental ' may cause obscurity, by 
 involving matter of a wholly different nature, unneces- 
 sary to be taken into consideration here, I eliminate it 
 from the question. If there be a distinction between 
 mental shock and nervous shock, and if the proposition 
 be not true in the case of nervous shock, then the ob- 
 jection cannot be sustained. 
 
 " It is, then, to be observed : (i), that the negligence 
 is a cause of the injury, at least in the sense of a causa 
 sine qua non ; (2), that no intervening independent cause 
 of the injury is suggested ; (3), that jurors, having regard 
 to their experience of life, may hold fright to be a nat- 
 ural and reasonable consequence of such negligence as 
 occurred in the present case. 
 
 " If, then, such bodily injury as we have here, may be 
 a natural consequence of fright, the chain of reasoning is 
 
512 DAMAGES, § 254 
 
 complete. But the medical evidence here is such that 
 the jury might from it reasonably arrive at the conclusion 
 that the injury, similar to that which actually resulted to 
 the plaintiff from the fright, might reasonably have re- 
 sulted to any person who had been placed in a similar 
 position. It has not been suggested that there was any- 
 thing special in the nervous organization of the plaintiff 
 which might render the effect of the negligence or fright 
 upon her different in character from that which it would 
 have produced in any other individual. I do not myself 
 think that proof that the plaintiff was of an unusually 
 nervous disposition would have been material to the 
 question ; for persons, whether nervous or strong-minded, 
 are entitled to be carried by railway companies without 
 unreasonable risk of danger ; and my only reason for re- 
 ferring to the circumstance is to show that, in this par- 
 ticular case, the jury might have arrived at the conclu- 
 sion that the injury which did, in fact, ensue was a nat- 
 ural and reasonable consequence of the negligence which 
 actually caused it. 
 
 " Again, it is admitted that, as the negligence caused 
 fright, if the fright contemporaneously caused physical 
 injury, the damage would not be too remote. The dis- 
 tinction insisted upon is one of time only. The propo- 
 sition is that, although, if an act of negligence produces 
 such an effect upon particular structures of the body as 
 at the moment to afford palpable evidence of physical in- 
 jury, the relation of proximate cause and effect exists be- 
 tween such negligence and the injury, yet such relation 
 cannot in law exist in the case of a similar act producing 
 upon the same structures an effect which, at a subsequent 
 time — say a week, a fortnight, or a month — must result, 
 without any intervening cause, in the same physical in- 
 jury. As well might it be said that death caused by 
 poison is not to be attributed to the person who admin- 
 
§ 254 DAMAGES. 
 
 513 
 
 istered it because the mortal effect is not produced con- 
 temporaneously with its administration. This train of 
 reasoning might be pursued much further ; but in conse- 
 quence of the decision to which I shall hereafter refer, I 
 deem it unnecessary to do so," 
 
 Referring then to the unreported case of Byrne v. 
 Great Southern and Western Railway Co., the facts of 
 which he recites, he continues : 
 
 "That case goes much further than is necessary to sus- 
 tain the direction here, as in it there was nothing in the 
 nature of impact. As between it, by which we are 
 bound, and the decision of the Privy Council, by which 
 we are not, I must prefer the former. I desire, however, 
 to add that I entirely concur in the decision in Byrne v. 
 Great Southern and Western Railway Co., and that I 
 should have been prepared to have arrived at the same 
 conclusion, even without its high authority. Its im- 
 portance in the present case is that it renders unneces- 
 sary for me to yield my own opinion to the decision in 
 the Victorian Railway Commissioners v. Coultas.^ 
 
 " In conclusion, then, I am of opinion that, as the rela- 
 tion between fright and injury to the nerve and brain 
 structures of the body is a matter which depends entirely 
 upon scientific and medical testimony, it is impossible for 
 any court to lay down, as a matter of law, that if negli- 
 gence cause fright, and such fright, in its turn, so affects 
 such structures as to cause injury to health, such injury 
 cannot be ' a consequence which, in the ordinary course 
 of things, would flow from the negligence, unless such 
 injury accompany such negligence in point of time.' " 
 
 The decision in this case accords with the opinion ex- 
 pressed upon the question by a recent English writer, 
 who, upon a full consideration of analogous cases, con- 
 cluded that the decision in Victorian Railway Commis- 
 
 ' L. R. 13 App. Cas. 222. 
 33 
 
514 
 
 DAMAGES. 
 
 § 254 
 
 sioners v. Coultas/ was not supported by principle or au- 
 thority.^ The decision in that case, however, has been 
 followed in this country, but not upon a statement of the 
 reasons on which it rests,^ and the contrary view is taken 
 in a work of high authority.^ In a case in Massachusetts, 
 under the statute imposing liability upon towns for defect- 
 ive highways, it was held that there must be bodily in- 
 jury in order to allow recovery." 
 
 and is like the case of Sneesby v. 
 Lancashire and Yorkshire Railway 
 Company, i Q. B. D. 42. It is re- 
 markable that no precedent has been 
 cited of an action similar to the pres- 
 ent having been maintained or even 
 instituted, and their Lordships decline 
 to establish such a precedent." 
 
 '' Beven on Negligence, p. 66 ei seg. 
 
 3 Atchison, etc. R. Co. v. McGinnis, 
 26 Pac. Rep. 453 (1891). See Terre 
 Haute, etc. R. Co. v. Brunker (Ind.), 
 26 N. E. Rep. 178 (1891). 
 
 « Sedgwick on Damages, 8th ed., 
 § 861. See Barbee v. Reese, 60 Miss. 
 906. 
 
 ' Canning V. Williamstown, 55 Mass. 
 451 (1848). Here Metcalf, J., said: 
 " The Rev. Sts. c. 25, § 22, provide, 
 that if any person ' shall receive any 
 injury in his person,' by reason of 
 any defect or want of repair in a road, 
 he may recover of the party that is by 
 law obliged to repair the road the 
 amount of damage sustained by, such 
 injury. The argument for the defend- 
 ant assumes that the plaintiff sustained 
 no injury in his person, within the 
 meaning of the statute, but merely in- 
 curred risk and peril, which caused 
 fright and mental suffering. If such 
 were the fact the verdict would be 
 contrary to law. But we must sup- 
 pose that the jury under the instruc- 
 tions given to them, found that the 
 plaintiff received an injury in his per- 
 son—a bodily injury — and that they 
 
 1 L. R. 13 App. Cas. 222 (1888). In 
 this case the medical evidence showed 
 that the plaintiff had received " a 
 severe nervous shock from the fright, 
 and that the illness from which she 
 afterwards suffered was the conse- 
 quence of the fright." Sir Richard 
 Crouch said : " According to the evi- 
 dence of the female plaintiff the fright 
 was caused by seeing the train ap- 
 proaching, and thinking they were 
 going to be killed. Damages arising 
 from mere sudden terror unaccom- 
 panied by any actual physical injury, 
 but occasioning a nervous or mental 
 shock, cannot, under such circum- 
 stances, their Lordships think, be con- 
 sidered a consequence which, in the 
 ordinary course of things, would flow 
 from the negligence of the gate- 
 keeper. If it were held that they can, 
 it appears to their Lordships that it 
 would be extending the liability for 
 negligence much beyond what that 
 liability has heretofore been held to 
 
 be The learned counsel for the 
 
 respondents was unable to produce 
 any decision of the English courts in 
 which, upon such facts as were proved 
 in this case, damages were recovered. 
 The decision of the Supreme Court of 
 New York (Vandenburgh v. Truax, 4 
 Denio 464) which he referred to in 
 support of his contention was a case 
 of a palpable injury caused by a boy, 
 who was frightened by the defendant's 
 violence, seeking to escape from it, 
 
255 DAMAGES. 
 
 515 
 
 § 255. Plaintiff aggravating damages by subsequent neg- 
 ligence.— A plaintiff who does not exercise reasonable 
 care after he has received an injury may be himself 
 charged with the damage that ultimately results to him. 
 But if he does exercise reasonable care and the effects of 
 the accident are aggravated by disease which follows as 
 a natural consequence of the accident, he may recover 
 his full damage.^ He is to be guided in his conduct by 
 considerations of what is reasonable in view of his par- 
 ticular case, and so long as he exercises ordinary care the 
 final result of the injury is not attributable to himself. 
 Thus in a recent case in New York,^ where a woman fell 
 Upon a sidewalk and injured her ankle, and it was 
 claimed that she should not have used it, upon appeal the 
 court said : 
 
 " We cannot, therefore, accede to the proposition made 
 by the learned counsel for the defendant, that there 
 rested upon the plaintiff the absolute necessity of not 
 using her ankle until such time as the same should be 
 fully restored, nor that the defendant is in any position 
 to claim that the bare possibility of such improper use of 
 the ankle should redound to its benefit. 
 
 " There is no principle of law which supports such con- 
 tention, where the good faith of the party is not, but his 
 ignorance alone is impugned. The duty rested upon the 
 plaintiff to take proper care of the injured ankle, and not 
 
 did not return their verdict for dam- ' Ehrgott v. New York, 96 N. Y. 264, 
 
 ages sustained by mere mental suffer- supra, p. 394, n. i ; Stewart v. Ri- 
 
 ing caused by the risk and peril which pon, 38 Wis. 584 ; Terre Haute, etc. 
 
 he incurred. And though th.it bodily R. Co. v. Buck, 49 Am. Rep. 168, 96 
 
 injury may have been very small, yet Ind. 346 (1884); International Ry. Co. 
 
 if it was a ground of action within the v. Terry, 62 Tex. 380, 50 Am. Rep. 
 
 statute and caused mental suffering to 529 ; Hartvig v. N. P. Lumber Co. 
 
 the plaintiff, that suffering was a part (Or.), 25 Pac. Rep. 358. 
 
 of the injury for which he was entitled ^ Foels v. Tonawanda, 60 Hun 567 
 
 to damages." (1891), opinion by Macomber, J. 
 
5i6 
 
 DAMAGES. 
 
 §255 
 
 wantonly, carelessly, or needlessly to do any act which 
 would aggravate the injuries to it. Her duty to\yard that 
 member, however, was not so great and exclusive as to 
 require her, in the absence of competent and positive 
 medical instructions, to ignore and openly disregard the 
 welfare of the rest of her members, and of her whole 
 body. So long as she acted in good faith, and according 
 to such lights as she had, the defendant, the party guilty 
 of the wrong, cannot be permitted to complain of her 
 mistake of judgme;nt in the treatment of her ankle ; nor 
 successfully to claim that no liability should attach to 
 itself, because the amount of compensation which should 
 be awarded against it for its wrong is difficult or impos- 
 sible of separation from the aggravations thereof accom- 
 panying an honest but mistaken treatment." ^ 
 
 . ' Hickinbottom v. D. L. & W. R.R. 
 Co., 15 N.Y.St. Rep. 15. 
 
 In Weiting v. Town of Millston, 
 46 N. W. Rep. 879 (1890), Taylor, J., 
 says : " It appeared on the trial that, 
 after the plaintiff had partially recov- 
 ered from the injuries received by him 
 at the time of the accident, he re- 
 ceived a further injury by being 
 thrown from a buggy in which he was 
 riding in the night-time with one of 
 his neighbors ; and a question arose 
 on the trial whether the plaintiff was 
 entitled to enhanced damages by 
 reason of the second injury. Upon 
 that question the learned circuit judge 
 instructed the jury at considerable 
 length, and, as we think, after read- 
 ing the instructions carefully, in strict 
 accordance with the law. As this 
 question is a matter of importance in 
 this case, and perhaps of interest to 
 the public, we insert the instructions 
 at length given by the learned trial 
 judge upon this point in the case. 
 He s^id : ' The plaintiff's attorney 
 
 asks a special instruction with re- 
 gard to the second breaking of his 
 leg. The evidence shows that his 
 leg was broken a second time after it 
 so knit together that the man went 
 around' on crutches, and was at 
 Neillsville. Now, I have already in- 
 structed you that he is entitled to re- 
 cover for his loss or damages which 
 were occasioned by this accident upon 
 that highway. Now, this accident 
 upon the highway broke his leg. The 
 leg had knit together, but was not 
 entirely well, at the time of the second 
 accident. Now, the law does not re- 
 quire a man who has received such 
 an injury shall lie upon his bed until 
 his injuries are perfectly restored. 
 He has a right to get' upon his 
 crutches, and to be outdoors, and to 
 ride in a wagon, as soon as it is rea- 
 sonably safe and prudent for him to 
 do so ; and, if by doing so, another 
 accident happens to him, which 
 would not have happened except for 
 the first accident, the first accident 
 
2;6 
 
 'DAMAGES. 
 
 517 
 
 § 256. Physician's negligence.— So the negligence or 
 want of skill of a physician employed is not to be at- 
 tributed to his patient. The original wrong-doer has 
 put him in a position requiring the attendance of a 
 physician, and nothing but reasonable care is required 
 from him in making his selection. The negligence of 
 another person co-operating with that of a municipality 
 in the first instance will not relieve the corporation from 
 the consequences of its neglect, so there would seem to 
 be no principle upon which the subsequent negligence of 
 a third person aggravating the injury should produce this 
 
 Would be the cause of the damages 
 which he receives. Now, applying 
 it to this case, this man was upon 
 crutches. He was able to be about 
 the street some, and was visiting at 
 Neillsville with a friend of his, and, in 
 riding home, the buggy was over- 
 turned, and his limb broken. Now, 
 the evidence, as it stands before you, 
 perhaps does not show very clearly 
 whether there was any new cause 
 there which would have broken a 
 sound limb, or whether the fact that 
 it was broken by this overturning was 
 due to the fact that the limb was 
 Weakened and impaired by the pre- 
 vious accident. So I think that if it 
 should be true that his being at the 
 place that he was in this buggy was 
 qot negligence, if .it was a tfyng he 
 might do with reasonable safety, and 
 if there was no negligence on his part, 
 or the part of the driver of the team 
 with whom he was riding, which 
 caused the oversetting of the wagon, 
 and if there was no cause at the time 
 of the oversetting which would have 
 broken his leg, except from this weak- 
 ened and impaired condition from the 
 previous accident, then I think it 
 would be, in contemplation of law," 
 one of the consequences of the pre- 
 
 vious accident which broke it the 
 second time; but this would not be 
 true at all if it was negligence for him 
 to be where he was riding in his 
 wagon, or if either he or the man who 
 drove his team was negligent, and 
 their negligence caused this overset- 
 ting of the wagon, and the breaking 
 of the leg, under circumstances where 
 it would not have broken but for the 
 previous injury. So you will say what 
 you think the truth is in regard to 
 that. If, in that fair sense that I have 
 tried to explain to you, you think the 
 second break was really a natural 
 consequence of the first injury in the 
 impaired condition of the leg, and 
 without negligence on the part of the 
 plaintiff, then he would be entitled to 
 recover for the pain and suffering it 
 caused him, and for the expense of 
 being cured, and nursing through the 
 prolongation of his injuries. That, I 
 think, is what is right, and what is 
 the law with reference to that ques- 
 tion.' These instructions, we think, 
 gave the law upon this subject cor- 
 rectly. See Brown v. Railroad Co., 
 54 Wis. 342-359, II N. W. Rep. 356, 
 91 1 ; Railway Co. v. Kellogg, 94 U. 
 S. 475-" 
 
5l8 DAMAGES. § 256 
 
 effect. In a case in New York, where this question 
 arose/ Earl, C, said: "When one receives an injury 
 through the carelessness of another, he is bound to use 
 ordinary care to cure and restore himself. He cannot 
 recklessly enhance his injury and charge it to another. 
 If his arm be broken he cannot omit to have it set, and 
 charge the loss of the arm to the wrong-doer. He is 
 not obliged to employ the most skillful surgeon that can 
 be found, or resort to the greatest expense to ward off 
 the consequence of an injury which another has inflicted 
 upon him. He is bound to act in good faith and to 
 resort to such means and adopt such methods reasonably 
 within his reach as will make his damage as small as he 
 can. But suppose he makes a mistake and innocently 
 eats or exercises so as to retard his cure or impair his 
 chances of recovery ; or suppose he employs a physician 
 who makes a mistake in his treatment, so that he is riot 
 as well or as soon restored as he otherwise would have 
 been ; who is to be responsible for the mistake ? Can 
 the wrong-doer, who has placed him in the position 
 where he must make the choice of remedies and doctors, 
 take advantage of such mistake ? Can he shield himself 
 from all the consequences of his wrong because the in- 
 jured man has not adopted the best means and employed 
 the best doctors? I think not. A wrong-doer breaks 
 an arm ; the injury is then done, and the arm for the 
 time is destroyed. He cannot complain that the injured 
 person has failed to restore it so long as he has acted in 
 good faith in its treatment, using the ordinary means 
 within his reach." ^ 
 
 ' Lyons v. Erie Railway Co., 57 N. ence to the medical treatment of the 
 
 Y. 490. plaintiff for his injuries as follows : ' If 
 
 * In Loeser v. Humphrey, 52 Am. the plaintiff is entitled to recover any 
 
 Rep.. 86, 41 Ohio St. 378 (1884), this damages, then he is entitled- to recover 
 
 . question was discussed, and Dickman, an amount sufficient to compensate 
 
 J., says : " The court charged in refer- him for the injury which he has actr 
 
§257 
 
 DAMAGES. 
 
 519 
 
 § 257. Action for death.— By the common law no re- 
 covery could be had for negligence which resulted in the 
 
 ually sustained so far as the damages 
 to him naturally and directly flowed 
 from and were caused by his wounds, 
 bruises, etc., caused by defendant's 
 acts or negligence complained of. 
 After the plaintiff was injured he 
 was bound to use ordinary care and 
 prudence, under all the circumstances, 
 to take care of himself and his wounds; 
 and if he employed a physician of 
 good standing and reputation, sup- 
 posing and having reason to think be 
 was such, and who, in fact, was such, 
 as it is admitted he was in this case, 
 then, though the physician may not 
 have used all the approved remedies, 
 pr that remedy which would have 
 been most suitable in the case, or 
 which a good medical man would 
 have used under the circumstances, 
 and on account of the failure to use 
 such usual or proper remedy, his con- 
 dition is worse than it would be had 
 it been used ; still, plaintiff may re- 
 cover for his actual damages, if he 
 himself has not been negligent ; and 
 such treatment, or failure to use such 
 remedy merely, will not prevent him 
 from recovering the full extent of his 
 injuries as aforesaid.' 
 
 "It is contended in behalf of the 
 plaintiffs in error, that the court, in 
 this portion of its charge, interfered 
 with the, province of the jury, and 
 withdrew from them the determina- 
 tion of the question whether Hum- 
 phrey had used ordinary care in pro- 
 viding himself with a physician, and 
 virtually said to them that if Hum- 
 phrey employed a physician of good 
 standing and reputation, he had 
 thereby exercised ordinary care. 
 Whether the instruction of the court 
 on this point was erroneous or not 
 we deem it unnecessary to inquire, as 
 
 we do not consider the instruction 
 material, it not having been claimed 
 at the trial and the record disclosing 
 no evidence that there was any want 
 of ordinary care and prudence on the 
 part of Humphrey in securing proper 
 medical or surgical assistance. As 
 an instruction to the jury in reference 
 to the care which he should have ex- 
 ercised in employing a physician was 
 not therefore material, the judgment 
 will not be reversed on the ground 
 that such instruction was erroneous. 
 Loundenback v. Collins, 4 Ohio St. 
 251 ; Creed v. Com. Bank of Cincin- 
 nati, 1 1 Ohio 489 ; Wash. Mut. Ins. 
 Co. V. Reed, 20 Ohio 202, 206, 207 ; 
 Kugler V. Wiseman, 20 Ohio 361 ; 
 Walker v. Lessee of Devlin, 2 Ohio 
 St. 605. 
 
 " It is conceded that at the time 
 Humphrey was injured no negligence 
 of his own contributed to his injury. 
 His cause of action was then com- 
 plete, and Loeser & Company became 
 liable for the natural and proximate 
 consequences of the collision occa- 
 sioned by their negligence. In trac- 
 ing the boundary between conse- 
 quences, proximate and remote, it is 
 difficult, as remarked by Professor 
 Parsons, to lay down a definite rule 
 of great practical value or efficacy, in 
 determining for what consequences 
 of an injury a wrong-doer is to be 
 held responsible. 2 Pars. Cont. 457. 
 In Harrison v. Berkley, i Strobh. 
 548, it was said : ' He shall not an- 
 swer for those which the party grieved 
 has contributed by his own blamable 
 negligence or wrong to produce, or 
 for any which such party, by proper 
 diligence, might have prevented.' 
 
 " There can be no dispute but that 
 Humphrey acted in good faith, show- 
 
520 
 
 DAMAGES, 
 
 25; 
 
 death of the person injured.^ But By Lord Campbell's 
 act in England,* and by statute in many States of this 
 
 ed due diligence, and used reasonable 
 means to eifect his cure and restora- 
 tion. He employed a physician 'of 
 good standing and reputation.' It 
 was not incumbent upon him to incur 
 the greatest expense, and call in the 
 most eminent physician or surgeon of 
 the highest professional skill and most 
 infallible judgment, before he could 
 hold the defendants answerable for 
 the condition in which he was left at 
 the end of his medical treatment. 
 Having exercised ordinary care and 
 reasonable judgment in selecting a 
 (physician, he was not required, as 
 said by the court in Stover v. Blue- 
 hill, 51 Me. 439, 'to insure, not only 
 the surgeon's professional skill, but 
 also his immunity from accident, mis- 
 take, or error in judgment,' in order 
 to recover of the original wrong-doer, 
 damages arising from no fault on his 
 part, and from causes beyond his 
 power to control. 
 
 " It seems to be well settled that 
 where one is injured by the negli- 
 gence of another, if his damage has 
 not been increased by his own subse- 
 quent want of ordinary care, he will 
 be entitled to recover of the wrong- 
 doer to the full extent of the damage, 
 although the physician whom he 
 employed omitted to apply the remedy 
 most approved in similar cases, and 
 by reason thereof the damage of the 
 injured party was not diminished as 
 much as it otherwise would- have 
 been. Lyons v. Erie Ry. Co., 57 N. 
 Y. 489 ; Tuttle v. Farmington, 58 N. 
 H. 13; Stover v. Bluehill, supra; 
 Bardwell v. Jamaica, 1 5 Vt. 438 ; Col- 
 lins V. Council Bluffs, 32 Iowa 324, 
 
 S. c. 7 Am. Rep. 200; Rice v. Des 
 Moines, 40 Iowa 638; Eastman v. 
 Sanborn, 3 Allen 594; Page v. Bucks- 
 port, 64 Me. 51, S. C. 18 Am. Rep. 
 239. 
 
 " The collision must be treated as 
 the proximate cause of Humphrey's 
 damage. It was this that imposed 
 upon him the necessity of employing 
 a physician, and of being subject to 
 all the contingencies attendant upon 
 the present imperfect state of medical 
 science. In Insurance Co. v. Boon, 
 95 U. S. 1 1 7, Strong, J., said : 'The 
 proximate cause is the efficient cause, 
 the one that necessarily sets the 
 other causes in operation.' In Byrne v, 
 Wilson, 1 5 Ir. C. L. 332, 342, a stage- 
 coach, by the negligence of the driver, 
 was precipitated into a dry canal. 
 The loclf-keeper thereafter negligent- 
 ly opened the gate of the canal and 
 drowned a passenger. Under Lord 
 Campbell's Act, the Irish Court of 
 Queen's Bench held that the death of 
 a passenger under such circumstances, 
 in the language of the act, was ' caused ' 
 by the negligence of the driver. The 
 passenger would not have lost her 
 life but for the subsequent act of 
 letting in the water, which was not 
 the necessary consequence of the pre- 
 vious precipitation by the negligence 
 of the defendant's servant. But in 
 the opinion of the court, the defendant 
 was not relieved from liability for his 
 primary neglect, by showing that but 
 for such subsequent act, the death 
 would not have ensued. And in 
 Page v. Bucksport, supra, the plain- 
 tiff was driving over a defective 
 bridge in the defendant town, when. 
 
 ' Sedgwick on Damages, § 570. 
 
 " Whittaker's Smith on Negligence, 
 P- 430- 
 
§ 257 DAMAGES. 52! 
 
 country, this remedy is allowed.^ Frequently the amount 
 recoverable is limited by the statute and the purposes for 
 which recovery may be had are specified. Thus under the 
 New York statute recovery can only be had for " pecuniary 
 injuries."^ Questions under these statutes frequently 
 
 without his fault, the horse broke 
 through the bridge and fell. The 
 plaintiff, in trying to extricate the 
 horse, received a blow from the horse's 
 head, and was injured by it. He was 
 at the time exercising ordinarj' care. 
 It was held that the defect in the way 
 was the proximate cause of the in- 
 jury. 
 
 "The defendants requested the 
 court below to charge the jury that 
 'if the attending physician did not 
 give the plaintiff the ordinary ap- 
 proved treatment, and his case is 
 worse on that account than it would 
 Otherwise have been, then to that de- 
 gree the defendants would not be 
 liable for his said worse condition.' 
 The court refused so to instruct the 
 jury, and in so refusing we think there 
 was no error. If the condition of Hum- 
 phrey was worse because his physician 
 did not give the ordinarily approved 
 treatment, it cannot be attributed to 
 any want of care and prudence on 
 Humphrey's part in securing medical 
 or surgical aid." See Pullman Com- 
 pany V. Bluhm, 109 111. 20, 50 Am. 
 Rep. 601 (1884); Mt. Carmel v. How- 
 ell, 36 111. App. 68 (1 891). 
 
 ' See Sedgwick on Damages, 8th 
 ed., § 571 et seg.; Whittaker's Smith 
 on Negligence, p. 443 et seq.; Shear- 
 man & Redfield on Negligence, § 766 
 et seq. 
 
 ' In Birkett v. Knickerbocker Ice 
 Co., no N. Y. 508 (1888), Earl, J., 
 said : " The trial judge did not err in 
 refusing to rule, upon the request of 
 defendant's counsel, that the plaintiff 
 
 was entitled to nominal damages only. 
 The rule of damages in such cases is 
 a difficult one to apply. The ' pecu- 
 niary injuries,' for which recovery only 
 can be had, are always difficult of 
 precise proof, uncertain and problem- 
 atical, and what should be a proper 
 compensation for them must always, 
 upon such proof as can be made, be 
 left to the judgment of the jury. That 
 judgment is not an uncontrollable one, 
 but is subject, if abused or not prop- 
 erly exercised, to be reviewed and 
 modified in the court of original juris- 
 diction. Here there was proof of the 
 circumstances of the plaintiff and his 
 family, and the condition, character, 
 and sex of the child ; and the authori- 
 ties in this State would not justify a 
 ruling that nominal damages only 
 could be recovered. Ihl v. Forty- 
 second St., etc. R.R. Co., supra; 
 Houghkirk v. Prest., etc. D. & H. 
 Canal Co., 92 N. Y. 219. 
 
 " The jury were not bound, in esti- 
 mating the compensation to be made 
 for the death of the child, to confine 
 their considerations to her minority. It 
 is true that the plaintiff, as father, 
 could command her services only dur- 
 ing her minority. But in certain con- 
 tingencies she might, after her major- 
 ity, owe him tfie duty of support, 
 which could, by legal proceedings, be 
 enforced ; and after that event she 
 might, in many ways, be of great 
 pecuniary benefit to him. In estimat- 
 ing the pecuniary value of this child 
 to her next of kin, the jury could take 
 into consideration all the probable, or 
 
522 
 
 DAMAGES. 
 
 §258 
 
 arise in actions against railway corporations, and references 
 to many authorities will be found in works treating of 
 these, corporations. 
 
 §258. Actionfor loss of service.— Damages may be re- 
 covered by a husband for the loss of service,^ the expenses 
 of cure,^ and the loss of the society ^ of his wife, and by a 
 
 even possible, benefits which might 
 result to them from her life, modified, 
 as in their estimation they should be, 
 by all the chances of failure and mis- 
 fortune. There is no rule but their 
 own good sense for their guidance, 
 and they were not in this case bound 
 to assume that no pecuniary benefits 
 would come to the next of kin from 
 this child after her majority." 
 
 ' Readdy v. Borough of Shamokin, 
 137 Pa. 98 (1890) ; Lindsey v. Dan- 
 ville, 46 Vt. 144; Sedgwick on Dam- 
 ages, 8th ed., §§ 573, 574. 
 
 ^ Meigs V. Buffalo, 23 W. D. 497. 
 
 ' In Furnish v. Missouri Pac. Ry. 
 Co., IS S.W. Rep.3iS (1891), Barclay, 
 J., says : " Defendant claims that the 
 trial court erred by instructing the 
 jury to allow plaintiff such sum as the 
 evidence showed would compensate 
 him for the ' loss of society and com- 
 panionship of his wife.' The objec- 
 tion is placed upon two grounds. It 
 is first asserted that there was no loss 
 to plaintiff of the society or companion- 
 ship of his wife, because, though in- 
 jured, she was yet with him, and he 
 therefore had the benefit of her society. 
 But the answer to that contention is 
 that, as her husband, he was entitled 
 to her society as she was when the 
 negligence of defendant impaired her 
 strength, her health, and her useful- 
 ness as a helpmate. Though he may 
 still be with her, and her companion- 
 ship may be even more dear to him 
 since her injury, becaiise of her very 
 helplessness and need of his attention, 
 
 yet that does not diminish the legal 
 wrong he has suffered from the acts 
 which produce that condition. He is 
 entitled to be compensated for such 
 loss of her society as resulted from the 
 negligence alleged. By the term 
 ' society,' in this connection is meant 
 such capacities for usefulness, aid, and 
 comfort as a wile as she possessed at 
 the time of the injury. Any diminu- 
 tion of those capacities by the acts or 
 negligent omissions of defendant con- 
 stituted a just basis for an award 
 of compensatory damages therefor. 
 Maxson v. Railroad Co. (1889), 112 
 N.Y. 559, 20 N. E. Rep. 544; Ainley 
 V. Railway Co. (1888), 47 Hun 206; 
 Jones V. Railroad Co. (1886), 40 Hun 
 349; Blair v. Railroad Co. (1886), 89 
 Mo. 334, I S. W. Rep. 367 ; Berger 
 V. Jacobs (1870), 21 Mich. 215; Cregfin 
 V. Railroad Co. (1881), 83 N. Y. 595. 
 Next it is urged that, as no evidence 
 was offered of the value of the wife's 
 society, the instruction should not 
 have been given^ To this it may be 
 said that the nature of the subject 
 does not admit of direct proof of value, 
 and that, when the fact of loss of 
 society is established by testimony, 
 the assessment of reasonable compen- 
 sation therefor must necessarily be 
 committed to the sound discretion and 
 iudgment of the triers of fact. The 
 trial court, by the instruction num- 
 bered 9, excluded a recovery of any 
 damages for loss of services of the 
 wife, presumably because the court 
 did not consider the position, as as- 
 
§258 
 
 DAMAGES. 
 
 523 
 
 parent for the loss of service of a child.* In determin- 
 ing the amount recoverable for an injury to a child, 
 ■the damage to a parent's feelings in the loss of a child 
 is not to be taken into consideration. It is disputed in 
 the States where the liability for defective highways is 
 
 serting any specific claim therefor. 
 Whether this ruling was correct or. 
 not need not be discussed, as the 
 plaintiff makes no complaint thereof. 
 But plaintiff's loss of society and com- 
 panionship of his wife was expressly 
 counted upon, and submitted properly 
 to the jury by the instruction num- 
 bered 10, as a ground of recovery." 
 
 ' In City of Galveston v. Barbour, 
 62 Tex. 172 (1884), Stayton, Associate 
 Justice, says : " This action was 
 brought by the appellees to recover 
 damages for an injury which resulted 
 in the death of their minor son, which, 
 they allege, was caused by the neglect 
 of the appellant to maintain in good 
 condition one of the sidewalks of the 
 city. 
 
 " The court below sustained a 
 demurrer to such of the petition as set 
 up injury to the feelings of the parents 
 as an element of damage, and in refer- 
 ence to the measure of damage in- 
 structed the jury as follows : ' And as 
 tp amount or measure of damage, 
 there is no rule that I can give you as 
 the proper measure thereof ; if you 
 should find the plaintiff entitled to 
 damages, you must look to all the evi- 
 dence and attendant circumstances to 
 ascertain what amount of damages 
 the plaintiffs are entitled to, propor- 
 tioned to the injury resulting from the 
 death.' 
 
 " The appellant requested the court, 
 in effect, to instruct the jury, if they 
 found for the plaintiff, that they must 
 consider, in determining the amount 
 pf damage, the pecuniary loss result- 
 
 ing to them through the death of their 
 son, and that they could not give 
 damages for distress, sorrow, or men- 
 tal suffering of the parents. These 
 charges were refused. 
 
 " It is well settled that, in actions 
 of this character, no damage can be 
 given for mental suffering of the per- 
 son or persons for whose benefit such 
 an action is brought; and although 
 the court had sustained an exception 
 to so much of the petition as set up 
 mental suffering of the parents, yet, 
 when requested, should have given a 
 charge upon this subject ; and espe- 
 cially so when the charge as given by 
 the court was so general. 
 
 " The charge given placed no limit 
 on the discretion of the jury, and 
 tended to influence the jury to believe 
 that the law placed no restraint upon 
 them, and left the whole matter to 
 their unbridled and uninformed dis- 
 cretion. 
 
 " In this class of cases, while it is 
 difficult to prove, with that exactness 
 which may be done in some classes of 
 cases, the actual damage to which the 
 plaintiff or plaintiffs are entitled, yet it 
 is not true that the law gives no 
 measure of damage in such cases, and 
 instructions should be given, definite 
 in their character, as to the true 
 measure. Pennsylvania R.R. Co. v. 
 Vandever, 36 Penn. St. 303. 
 
 " In such cases as this, the true 
 measure of damages would be a sum 
 equal to the pecuniary benefit the 
 parents had a i-easonable expectation 
 of receiving from their child, had he 
 
524 
 
 Damages. 
 
 §258 
 
 statutory whether an action can be brought because of 
 an injury to a wife or child' — in New Hampshire^ 
 the court holding that such an action can be maintained, 
 but in Massachusetts and Maine the rule being that 
 such damage is not within the statutes existing there." 
 Whether a married woman can bring an action in her 
 own behalf for injuries received, must depend upon 
 the statute rights of such a person in the locality in 
 which the action is brought.^ 
 
 not died ; taking into consideration 
 the fact that he was a minor; 2 Sedg- 
 wick on Damages, 537. And in addi- 
 tion to this, we are of the opinion, in 
 cases in which the injury is to a minor 
 child, that the parent may recover the 
 cost of medical and other like expenses 
 necessarily incurred." 
 
 ' Wheeler v. Troy, 20 N. H. ^^ ; 
 Eliot V. Concord, 27 N. H. 204. 
 
 " Harwood v. Lowell, 58 Mass. 310 ; 
 Reed v. Belfast, 20 Me. 246. 
 
 ' McFadden v. Santa Ana, etc. R. 
 Co., 1 1 Law R. Ann. 252 (1891), Van- 
 clief, C, says : " The right to recover 
 damages for personal injury, as well 
 as money recovered as damages, is 
 property, and may be regarded as a 
 chose in action (Chicago, B. & Q. R. 
 Co. V. Dunn, 32 111. 260 ; Anderson, 
 Law Diet.) ; and if this right to dam- 
 ages is acquired by the wife during 
 marriage, it, like the damages when 
 recovered in money, is, in this State, 
 community property of the husband 
 and wife (Civil Code, §§ 162-164, 169). 
 of which the husband has the manage- 
 ment, control, and absolute power of 
 disposition other than testamentary-. 
 Id. § 172. Consequently the wife can- 
 not sue alone for damages on account 
 of an injury to her person, as she is 
 permitted to do, ' when the action 
 concerns her separate property.' Code 
 
 Civ. Proc, § 370 ; Tell v. Gibson, 66 
 Cal. 247. In these respects our codes 
 differ from the laws of those States in 
 which the cases cited by appellants 
 were decided, wherein the right to 
 recover for a personal injury to the 
 wife, and the money recovered, are 
 deemed her separate property. 
 
 " In the case of Flori v. St. Louis, 3 
 Mo. App. 231, the husband and wife 
 sued for a personal injury to the wife 
 alone, and the trial court instructed 
 the jury, in effect, that if the husband 
 was guilty of negligence, directly con- 
 tributory to the injury, there could be 
 no recovery in the action. Of this in- 
 struction the appellate court said: 
 ' We do not so understand the law. 
 The contributory negligence of the 
 plaintiff will bar a recovery where the 
 plaintiff is the injured party, and the 
 recovery is for his benefit. But here 
 the husband is merely a formal party, 
 the cause of action belonging to the 
 wife. Under our law (Acts 1875, P- 61)1 
 'any personal property, including 
 
 rights in action which has 
 
 grown out of any violation of the per- 
 sonal rights ' oia/eme covert, 'is her 
 separate property, and under her sole 
 control, and is not liable for the debts 
 of her husband.' 
 
 " In Platz V. Cohoes, 24 Hun loi.the 
 decision that the negligence of the 
 
259 
 
 DAMAGES. 
 
 525 
 
 § 259. Action for injury to property. — Where property 
 is totally destroyed through the negligence of a municipal 
 corporation, the damage recoverable is the value of the 
 property ; and if property of an individual, whether real 
 or personal, is injured, the measure of damage is ordina- 
 rily the difference in its value before and after the injury.^ 
 It is disputed whether interest should be allowed upon 
 claims based on negligence. ** The prevalent rule, how- 
 
 husband could not be imputed to the 
 wife, in a case like this, was put solely 
 upon the grounds that the wife was a 
 mere passenger in her husband's 
 wagon, and that her husband had no 
 joint interest with her, and was in no 
 way identified with her. On appeal 
 from this decision of the Supreme 
 Court, the Court of Appeals held that 
 the ■question as to contributory negli- 
 gence of the husband did not arise, 
 and declined to decide it. 89 N. Y. 2 1 9. 
 
 " In the case of Chicago, B. & Q. 
 R. Co. V. Dunn, supra, it was held 
 that the right of the wife- to sue for an 
 injury to her person was her separate 
 property, und|ir a statute of that State 
 providing that all property shall be 
 separate property of the wife ' which 
 any married woman, during coverture, 
 acquires in good faith, from any per- 
 sonotherthanher husband, by descent, 
 devise, or otherwise.' 
 
 " In Shearman & Redfield on Neg- 
 ligence, 4th ed., § 67, it is said : ' But 
 in New York, Missouri, and other 
 States, where the change has been 
 radical, and married women have a 
 right to recover, in such cases, dam- 
 ages for their own separate use, it is 
 held that the negligence of the hus- 
 band, while in company with his wife, 
 is not chargeable to her, unless she 
 encourages him in it, or otherwise 
 concurs in it.' No other authority is 
 cited for this than the case above con- 
 
 sidered." See Lewis v. Atlanta, ^^ 
 Ga. 756 (1886); Sedgwick on Damages, 
 8th ed., § 486. 
 
 • Sedgwick on Damages, 8th ed., 
 § 343, says : " One fundamental prin- 
 ciple may be stated at the outset, and 
 we shall find frequent examples of it 
 as we proceed with our examination ; 
 and that is, that wherever the meas- 
 ure of damages involves the question 
 of value, however much the market 
 may be resorted to to detei-mine what 
 the value is, this resort is had, not as 
 a conclusive test, but to aid in getting 
 at that real value to which the plain- 
 tiff is entitled. What he is entitled to 
 recover is the real value of the article 
 of property, the time, the labor, or the 
 services, as they would be if unaffected 
 by the defendant's tort or if the de- 
 fendant's contract had been per- 
 formed." 
 
 See Sheannan & Redfield on Neg., 
 §§750,751; Eufaula v. Simmons, 86 
 Ala. 515; North Vernon v. Voegler, 
 103 Ind. 314. 
 
 2 In Wilson v. City of Troy, 60 Hun 
 183 (1891), Learned, P. J., says: " The 
 complaint demanded judgment in re- 
 spect to this horse for $3,000 and in- 
 terest from the date of the injury. 
 The jury gave a verdict for $4,761, 
 which was $3,000 and interest as 
 above stated. It is urged by defend- 
 ant that interest could not be allowed. 
 The court had charged that the jury 
 
526 
 
 DAMAGES. 
 
 § 259 
 
 ever, leaves the question to the jury, and if they do not 
 give interest, none is allowed.^ Municipal corporations 
 
 might allow interest, and the defend- 
 ant excepted. On this question of the 
 allowance of interest we think that 
 many of the decisions in actions of 
 contract do not give much light. But, 
 even in an action of contract, where 
 certain property was to be delivered 
 at a certain time, it was held that, as 
 a matter of law, the plaintiff was en- 
 titled to interest. Dana v. Fiedler, 1 2 
 N. Y. 40. So in an action of trover 
 for conversion, interest from the time 
 of the conversion should be given. 
 Andrews v. Durant, 18 N. Y. 496. 
 This same rule is reaffirmed in Mc- 
 Cormick v. Pennsylvania Centra] Rail- 
 road Company, 49 N. Y. 303, 315. 
 The reason given is that interest is as 
 necessary a part of a complete indem- 
 nity as the value itself, and is not in 
 the discretion of the jury. This was 
 the doctrine also in Hyde v. Stone, 7 
 Wend. 354, and Bissell v. Hopkins, 4 
 Cow. 53. Now, evidently, the reason 
 for this rule is that the injured person 
 has been, from a certain time, de- 
 prived of property which was actually 
 in his possession and enjoyment. To 
 pay him back simply the value several 
 years afterward would not be an in- 
 demnity. For, if the property had 
 not been taken from him, he would, 
 during all the intervening time, have 
 had the use and enjoyment of it. And 
 this he has been deprived of by the 
 wrongful act of the defendant. 
 
 " In White v. Miller, 78 N. Y. 393, 
 there is a compilation of most of the 
 recent cases, which, the court says, 
 shows the uncsrtain state of the law. 
 The cases cited are all actions on con- 
 
 tract, as was that case itself. That 
 case was a breach of warranty on the, 
 sale of cabbage seeds for some small 
 price. It is quite possible that if the 
 recovery had only been for the price 
 paid, interest on that price would 
 have been allowed. But the dam- 
 ages allowed were the difference in 
 value between a crop of cabbage 
 raised from the seed sold and a 
 crop which would ordinarily have 
 been raised from seed such as these 
 were warranted to be. And the court 
 held that interest on such damage 
 could not be allowed. It will be seen/ 
 then, that the damages were in them- 
 selves speculative, and that no prop- 
 erty in the plaintiff's possession was 
 taken away or injured. The court 
 recognizes in that case the rule as to, 
 trover and trespass de bonis as por- 
 taiis, as above stated ; that is, that 
 interest is a matter of legal right in 
 those cases. Now, what possible dif- 
 ference in principle can .there be be- 
 tween a case where a defendant forc- 
 ibly carries away my horse and a case 
 where he injures my horse so much 
 that it is valueless ? If by defendant's 
 violence he breaks my horse's legs so 
 that he is good for nothing, I have 
 lost my property just as much as if 
 defendant had stolen it. And, to 
 compensate me, I ought to have in- 
 terest on the damages done up to the 
 time of recovery. The wrong-doer 
 ought not, by delaying to compen- 
 sate me, have the use of the money 
 which should have compensated me 
 at the time of the injury. In cases 
 like the present the defendant is to 
 
 1 In Duryee v. New York, 96 N. Y. is well settled that in an action of 
 477- (1884), Ruger, Ch. J., says: "It tort like this to recover even unliq- 
 
§259 
 
 DAMAGES. 
 
 527 
 
 are not liable for consequential damages to property, but 
 are generally responsible for all damage occasioned by 
 their negligence. 
 
 blame and the plaintiff is innocent. 
 And the culpable defendant should 
 make full compensation. He does 
 not do so unless he pays interest. 
 
 " The action in the present case is 
 on the common-law liability for neg- 
 ligence. In Sargent v. Inhabitants 
 of Hampden, 38 Me. 581, the action 
 was on a statute, and the decision 
 rested on the language of the statute, 
 which limited the recovery to ' the 
 amount of the damages sustained 
 thereby.' 
 
 " The defendant urges that the 
 plaintiff has been the possessor of the 
 stallion ever since, and has used it. 
 But the jury have found that by this 
 injury the value of the stallion was at 
 once reduced by $3,000. That sura 
 is. not speculative, but actual damages 
 accruing at the time of the injury. 
 Let us suppose that by the accident 
 the plaintifTs wagon had been broken 
 to pieces, but that one wheel remained 
 uninjured. Would it be any answer 
 to the claim for interest to say 
 that the plaintiff has had the wheel 
 ever since and has made some use of 
 it ? We think not. 
 
 " The question of interest arose in 
 a similar case to the present. Parrott 
 v. Knickerbocker Ice Co., 46 N. Y. 
 361. That was an action for dam- 
 ages to a sloop, caused, by a collision 
 with a propeller. It was tried before 
 a referee, and he allowed interest. 
 The court said that in trover, replev- 
 in, and trespass, interest is allowed 
 for the purpose of complete indem- 
 nity ; and it was difficult to see why, 
 
 on the same principle, interest on the 
 value of property lost or destroyed by 
 the wrongful or negligent act of an- 
 other may not be included in the 
 damages. This is the doctrine of 
 Sedgrwick on Damages, 385. 
 
 "In Reiss v. New York Steam 
 Company, 35 N. Y. St. Rep. 86, the 
 Superior Court, in an action for dam- 
 ages to personal property, held that 
 the jury might give interest, but that 
 the plaintiff was not entitled to inter- 
 est as a matter of law. The case of 
 Mairs v. Manhattan R. E. Associa- 
 tion, 89 N. Y. 507, relied upon in that 
 case, was an action for damages to 
 land by flooding the same. So was 
 Walrath v. Redfield, 18 N. Y. 457. 
 
 '' It is, perhaps, not necessary to 
 hold in this case that the plaintiff is 
 entitled to interest as a matter of 
 right, although we believe that to be 
 the true rule in such cases. 
 
 "The court charged the jury: 
 •You cannot go beyond $3,000 and 
 the interest on that from the time,' 
 etc. 
 
 " The defendant's counsel requested 
 the court to charge that no interest is 
 allowable, citing White v. Miller. The 
 court declined. The jury rendered a 
 verdict for $3,000 and interest. Then 
 the court said that the jury must com- 
 pute the interest. They did so, and 
 allowed in all $4,761. Therefore, the 
 court left to the jury the question 
 whether they would or would not al.- 
 low interest, while the position of the 
 defendant was that the jury had no 
 right to allow interest. But we dp 
 
 uidated damages, the allowance of in- 
 .terest by way of damages is in the dis- 
 
 cretion of the jury. Walroth v. Red- 
 field, 18 N. Y.4S7; Parrott v. Knick- 
 
528 
 
 DAMAGES. 
 
 § 260 
 
 § 260. Evidence of damage.— The damage received 
 must be established by competent evidence. It is held 
 that the wealth or poverty of the plaintiff is not a proper 
 matter for consideration.^ But as he may testify to his 
 income from his employment and his mode of life, an 
 idea of his circumstances must be presented to the jury.^ 
 
 not see, as a matter of principle, why 
 the allowance of interest in such a 
 case is not a matter of right for the 
 
 purpose of complete indemnity as 
 much as it is in trover." 
 
 See Sedgwick on Damages, 8th ed., 
 §§320,337. 
 
 erbocl<er & N. Y. Ice Co., 46 Id. 361 ; 
 Mairs v. Manhattan R. E. Assn., 89 
 Id. 498. The discretion of the jury 
 on this question was exercised, and 
 they have found the amount of the 
 interest as a part of the damages suf- 
 fered by the plaintiff, and we see no 
 reason to disturb the judgment on that 
 ground." 
 
 In Plymouth Tp. v. Graver, 125 
 Pa. 24 (1889), it is said : " It is 
 true the plaintiff was not entitled to 
 interest, as such, upon the value of 
 his horse, but, in computing the 
 amount of the damages, the jury may 
 consider the time which has elapsed 
 since the injury was received. There 
 is some conflict in the cases : Pitts- 
 burgh Ry. Co. v. Taylor, 104 Pa. 306 ; 
 Allegheny v. Campbell, 107 Pa. 530 ; 
 but this we think is the rule generally 
 recognized." 
 
 See AUoway v. Nashville, 88 Tenn. 
 510. 
 
 > In Barbour County v. Horn, 48 
 Ala. 566 (1872), Peters, J., says: 
 " The wealth of the defendant, or pov- 
 erty of the plaintiff, has nothing to do 
 with their ascertainment. It was, 
 therefore, improper to admit evidence 
 of the wealth of the defendant in the 
 court below to go to the jury, or to 
 refuse to instruct the jury, when prop- 
 erly requested, that the defendant's 
 
 wealth could not be taken into con- 
 sideration in making up their verdict. 
 2 Greenl. Ev., § 268 ; Wilcox v. Plum- 
 mer, 4 Pet. 172, 182." See Chicago 
 v. O'Brennan, 65 111. 160 (1872). 
 
 ' In City of Joliet v. Conway, 119 
 111. 489 (1887), Mr. Justice Shope 
 says : " On the trial the plaintiff was 
 called as a witness in her own behalf, 
 and after testifying to her injuries, 
 their nature and extent, and their ef- 
 fect upon her ability to labor, she tes- 
 tified without objection, that she had 
 done housework for her family ever 
 since she had been married, until the 
 time of her injury, etc. The evidence 
 tended to show that in consequence 
 of these injuries received, she was in- 
 capacitated to perform such labor. 
 She was then permitted to testify, 
 against the objection of defendant, 
 that at the time of the injury she 
 was doing the housework for her 
 husband and eight children. The 
 error assigned questions the admissi- 
 bility of this evidence. 
 
 " The rule is, that the evidence in 
 each particular case must relate to the 
 issue therein presented, and tend to 
 establish some fact or facts legally 
 competent for the consideration of 
 the jury. Municipal corporations, in 
 cases arising from the neglect of their 
 officers to discharge the duty of main- 
 
§ 26o 
 
 DAMAGES. 
 
 529 
 
 The rule allowing evidence to show income does not per- 
 mit the proof of speculative profits.^ In a well-known 
 
 taining sidewalks, streets, etc., in suit- 
 able repair, are liable for such dam- 
 ages as will compensate for the inju- 
 ries received in consequence of per- 
 sons passing over the same, using 
 ordinary care. City of Chicago v. 
 Kelly, 69 111. 475. In determining 
 what is compensation for injuries so 
 received, any permanent injury, or 
 result of the injury causing a disabil- 
 ity from future labor or exertion, is a 
 proper subject for consideration by 
 the jury. It becomes necessary to in- 
 quire into the ability and capability to 
 labor or carry on business, or pursue 
 some avocation, prior to the injury, 
 for it is manifest that what would be 
 compensation to one person would be 
 greatly in excess of what another 
 should recover, and inadequate to 
 compensate still another. This court 
 has frequently reversed judgments for 
 the reason that the amount recovered 
 would yield a greater income than the 
 plaintiff could have earned by his la- 
 bor, or in any avocation for which he 
 was fitted prior to his injury. It be- 
 came of the first importance that the 
 jury, in estimating the damages plain- 
 tiff has sustained from the permanent 
 character of her injuries, and her dis- 
 ability to labor in consequence, should 
 know her previous physical condition 
 and ability to labor or follow the avo- 
 cation in which she was engaged. 
 The only purpose of the evidence 
 complained of, undoubtedly was to 
 show her occupation, and the extent 
 of her ability to perform labor, that 
 the jury might, if they found her in- 
 juries permanent, and her ability to 
 labor diminished in consequence, com- 
 pensate her for the loss thus sustained. 
 "It is, however, contended, that 
 the evidence under consideration 
 fid. 
 
 brought into the case the care for 
 and support of the plaintiff's family, 
 and the effect would be to unduly en- 
 hance the damages, and properly in- 
 fluence the jury, beyond the sum 
 necessary to compensate the plaintiff. 
 Undoubtedly the law is, that the dam- 
 ages must be such as the plaintiff has 
 herself sustained, and the evidence 
 confined to proof of such damages, 
 and the fact that she had a family, or 
 that she had the care of or maintained 
 it, would form no proper element for 
 consideration by the jury in fixing 
 compensation. Pittsburg, Ft. Wayne 
 and Chicago Railway Co. v. Powers, 
 74 III. 341 ; City of Chicago v. 
 O'Brennan, 65 Id. 160. In both 
 cases cited, the probable loss of sup- 
 port by the family of the plaintiff was 
 shown as constituting an element for 
 assessment of his damages. This the 
 court criticises, and holds to be in- 
 competent. In this case there is no 
 attempt to show that the family were 
 dependent upon the plaintiff for sup- 
 port, care, or maintenance, and the 
 jurj', we think, could not have so un- 
 derstood it, especially in view of the 
 fact that the instructions expressly 
 limit the right of recovery to such 
 damages as resulted to the plaintiff 
 alone." 
 
 1 In Ehrgott v. New York, 96 N. 
 Y. 264 (1884), Earl, J., said: "The 
 plaintiff was at and prior to the acci- 
 dent, a salesman or canvasser, for the 
 publishing house of D. Appleton & 
 Co. Instead of being employed at a 
 fixed salary, he had a contract with 
 them, by which he received for his 
 services a certain percentage of the 
 selling price of every copy of Apple- 
 ton's Cyclopedia sold in the district 
 embracing New York City, Brooklyn, 
 
53° 
 
 DAMAGES. 
 
 26b 
 
 English case, however, a physician was allowed to prove 
 that he had received certain special fees, and the jury was 
 
 Long Island, Staten Island, and 
 Westchester County. He was per- 
 mitted to prove, against the objections 
 of defendant's counsel, that his earn- 
 ings under his contract, for six or 
 seven years prior to the accident, 
 were from $4,000 to $7,000 a year. 
 It is now claimed that this proof was 
 erroneously allowed. The plaintiff 
 had the right to recover for his bod- 
 ily sufferings, and for his pecuniary 
 loss caused by his inability to work or 
 to follow his usual vocation. It would 
 be quite difficult, if not impossible, 
 to place before the jury the extent of 
 the pecuniary loss, unless a plaintiff 
 in such a case could show how much 
 he had been earning, and was capable 
 of earning, in his usual vocation. In 
 the case of a lawyer, if informed 
 merely of the number of days he 
 worked in a year, or of the number of 
 clients he had, or of the number of 
 cases he tried and argued ; and in the 
 case of a physician or dentist, if in- 
 formed merely of the number of his 
 patients,- a jury would get a very in- 
 adequate idea of his earnings. It is 
 certainly much better in such cases to 
 place before the jury the amount 
 earned by the person in his profession 
 during a series of years before the in- 
 jury. That amount may vary in the 
 past, and looking to the future, must 
 be uncertain, and yet the proof will 
 furnish to the jury the best possible 
 basis to estimate the pecuniary loss. 
 So here the plaintiff's income was not 
 from capital invested, but solely from 
 his personal skill and services ; and 
 his earnings for the six or seven years 
 showed what his services were worth 
 to himself, and what he was capable 
 of earning, and thus gave the jury a 
 
 basis from which to estimate his pe- 
 cuniary loss. It would have aided 
 the jury but very little to place before 
 them the nature of his business, and 
 the number of volumes of the cyclo- 
 pedia sold. The question was, how 
 much did he earn, and how much was 
 he capable of earning? and proof 
 which would furnish answers to these 
 questions would enable the jury to 
 determine how much he had lost from 
 his inability to continue his vocation. 
 There is abundant authority to justify 
 the reception of this evidence. Grant 
 V. City of Brooklyn, 41 Barb. 381 ; 
 W^alker v. Erie R. Co., 63 Id. 260 ; 
 Nash V. Sharpe, 19 Hun 366; Mcln- 
 tyre v. N. Y. C. R.R. Co., 37 N. Y. 
 287; Kessel v. Butler, 53 Id. 612; 
 Wade V. Leroy, 20 How. (U. S.) 343 ; 
 Nebraska City v. Campbell, 2 Black 
 590 ; Phillips V. South Western Rail- 
 way Co., L. R. 4 Q. B. Div. 406. 
 
 " The case of Masterton v. Village of 
 Mount Vernon, 58 N. Y. 391, mainly 
 relied on by counsel for the city, is 
 not in point. There the plaintiff had 
 testified that he was engaged in the 
 tea importing and jobbing business, 
 buying and selling teas, and had been 
 for a great number of years ; that he 
 had 'a partner who attended to the 
 sales while he made the purchases; 
 that in purchasing teas a high degree 
 of skill was necessary, which he pos- 
 sessed ; that the business was exten- 
 sive ; that in consequence of the in- 
 jury he could not purchase teas, and 
 there was a great falling off in the 
 business of the firm. He was then 
 asked, ' About what had been your 
 profits, year by year, in that business ? ' 
 And against the objection of the de- 
 fendant, he was permitted to answer ; 
 
§ 26o 
 
 DAMAGES. 
 
 531 
 
 instructed to take these into consideration in reaching a 
 verdict.^ In this case Bramwell, L. J., said: 
 
 " It is necessary to consider what is the proper direc- 
 tion to be given in a case of this description. I thinlc 
 that the direction of Lord Coleridge was such as is 
 usually given and was right. I have tried as judge more 
 than a hundred actions of this kind, and the direction 
 which I in common with other judges have been accus- 
 tomed to give the jury has been to the following effect : 
 ' You must give the plaintiff a compensation for his pe- 
 cuniary loss ; you must give him compensation for hi^ 
 
 and it was held that those profits de- 
 pended upon too many contingencies, 
 and were altogether too uncertain to 
 furnish any safe guide in fixing the 
 amount of damages, and that the evi- 
 dence was, therefore, incompetent. 
 There the profits resulted, both from 
 capital and services, and the services 
 were rendered both by the plaintiff 
 and his partner ; and hence it could 
 not be known how much of the 
 profits were due alone to the plaintiff's 
 skill and services. It was under such 
 circumstances that it was held that 
 the profits depending upon all the 
 contingencies of trade and commerce, 
 of wind and water, were too uncertain 
 as a guide for the jury. In that case, 
 Grover, J., writing the opinion, how- 
 ever, said : ' Where in such a case the 
 plaintiff has received a fixed compen- 
 sation for his services, or his earnings 
 can be shown with reasonable cer- 
 tainty, the proof is competent.' Here 
 plaintiff's earnings were shown with 
 reasonable certainty, and no error 
 was committed in allowing them to 
 be proved. 
 
 " Upon the trial plaintiff gave evi- 
 dence tending to show that he had a 
 disease of the spine of a permanent 
 nature as the result of his injuries. 
 
 This evidence was objected to by the 
 counsel for the city, on the ground 
 that the plaintiff had not alleged such 
 a result from the injury in his com- 
 plaint. We think the complaint is 
 sufficient. It alleges that he suffered 
 great bodily injury ; that he became, 
 and still continues to be, sick, sore, 
 and disabled ; that he was obliged to 
 spend large sums in attempting to 
 cure himself, and was prevented for a 
 long time from attending to his busi- 
 ness, and that he was otherwise in- 
 jured to his damage 125,000. These 
 allegations are sufficient to authorize 
 proof of any bodily injury resulting 
 from the accident, and if the defend- 
 ant desired that they should be more 
 definite, it could have moved to have 
 them made more specific, or for a bill 
 of particulars." 
 
 ' Phillips V. London and South 
 Western Railway Co., L. R. 5 C. P. 
 D. 280 (1879). Upon the first trial 
 of this case the plaintiff, a physician 
 with an income of ;£s,ooo a year, re- 
 covered £7,000 (see supra, p. 500, n. 
 2); but the case being sent back for a 
 re-trial on the ground that the verdict 
 was not adequate, a verdict for 
 £16,000 was given. 
 
en2 DAMAGES. § 260 
 
 pain and bodily suffering ; of course it is almost impossi- 
 ble for you to give to an injured man what can be 
 strictly called a compensation ; but you must take a rea- 
 sonable view of the case, and must consider under all the 
 circumstances what is a fair amount to be awarded to 
 him.' I have never known a direction in that form to 
 be questioned. I may take the common case of a laborer 
 receiving an injury, which has kept him out of work for 
 perhaps six months; his evidence may be that before 
 the time of the accident he was earning twenty-five shil- 
 lings a week, that during twenty-six weeks he has been 
 wholly incapacitated for work, that for ten weeks after- 
 ward he has been able to earn only ten shillings a week,, 
 and that he will not get into full work again for twenty 
 weeks. The plaintiff will be entitled to twenty-five shil- 
 lings for each of the twenty-six weeks and to fifteen 
 shillings for each of the ten and twenty weeks. He is 
 also entitled to some amount for his bodily sufferings 
 and for his medical expenses ; and in this manner the 
 compensation to be awarded him is estimated. I have 
 put a case where a definite term may be fixed upon 
 within which the party injured will recover ; but suppose 
 a case in which no definite term can be fixed : in that 
 case the direction to the jury is that they must consider 
 for themselves how long the plaintiff will be incapacitated 
 from earning his livelihood or practicing his profession, 
 but that they must take into account the chance of his 
 losing employment if he had not met with the accident. 
 Nevertheless the fundamental rule is to give the plaintiff 
 a fair and reasonable compensation for his pecuniary loss." 
 And in the same case Cotton, L. J., said : " In my opinion 
 the jury must take into consideration as a basis, if not 
 the basis, of their estimate, the income which the plain- 
 tiff was earning at the time of the accident, and deter- 
 mine whether its amount was permanent or accidental; 
 
§ 26o 
 
 DAMAGES. 
 
 533 
 
 In my opinion Lord Coleridge's direction was correct ; 
 he told the jury that they must give a fair compensation 
 for the pecuniary loss. In my opinion it would be wrong 
 to exclude altogether the special fees; if a physician 
 within a given time receives several large fees, it is cer- 
 tainly a matter for the consideration of the jury whether 
 he would continue to get that income ; special fees con- 
 stitute an element which is not to be left out in ascer- 
 taining what is the pecuniary loss which the plaintiff has 
 sustained by being debarred from following his profes- 
 sion." ^ If there is no evidence of the value of the work 
 of the plaintiff or the amount of his medical expenses, 
 
 ' To recover special damage this 
 must be pleaded in New York. In 
 Gumb V. Twenty-third Street R. Co., 
 114 N. Y. 411 (1889), Follett, Ch. J., 
 2d Div., said : " The plaintiff was per- 
 mitted to testify, over defendant's 
 objection, that the evidence was not 
 within the issue ; that while suffering 
 from his injury he employed two men 
 to work in his place, paying them $12 
 and $15 per week each, $135 in the 
 aggregate. When a plaintiff alleges 
 that his person has been injured and 
 proves the allegation, the law implies 
 damages, and he may recover such as 
 necessarily and immediately flow from 
 the injury (which are called general 
 damages) under a general allegation 
 that damages were sustained ; but if 
 he seeks to recover damages for con- 
 sequences which do not necessarily 
 and immediately flow from the injury 
 (which are called special damages), 
 he must allege the special damages 
 which he seeks to recover. It is not 
 alleged in the complaint that the 
 plaintiff expended money in hiring 
 others to work in his place ; the de- 
 fendant had no opportunity of con- 
 tradicting the evidence, and its recep- 
 tion was error. Gilligan v. N. Y. & 
 
 Harlem R.R. Co., i E. D. Smith 453 ; 
 Stevens v. Rodger, 25 Hun 54; 
 Whitney v. Hitchcock, 4 Denio46i; 
 2 Thompson on Negligence, 1250, 
 §§ 32, 33 ; 2 Sedg. on Dam., 7th ed., 
 606 ; I Chitty's PI., i6th Am. ed., 41 1, 
 515; Mayne on Damages, chap. 17; 
 Heard's Civil PI., 310-314. 
 
 " The plaintiff was permitted to 
 testify that he had paid seventy dol- 
 lars for the reparation of his wagon. 
 The defendant objected to this evi- 
 dence upon the ground that it did not 
 establish the extent of the injury or 
 the value of the repairs. The objec- 
 tion was overruled and the defendant 
 excepted. In the absence of evidence 
 that the repairs were proper, or worth 
 the sum paid, it was error to hold that 
 the sum paid could be recovered. 
 This error was repeated. The plain- 
 tiff, under a hke objection, was per- 
 mitted to show how much this phy- 
 sician charged him, without giving 
 evidence of payment or any evidence 
 of the value of the services, except 
 the incidental remark of the physician, 
 who testified, ' Seventy-five dollars is 
 the amount of my bill now ; that is 
 very small, too.' " 
 
534 
 
 DAMAGES. 
 
 § 260 
 
 nominal damages only can be recovered.^ So in order to 
 allow the jury to take into consideration the age of a 
 plaintiff it would seem that there should be some better 
 evidence of this than personal appearance.^ It is well 
 settled that testimony of medical experts may be received 
 as to the probable duration of a disease.^ 
 
 ' Supra, § 250. 
 
 "- In Hinds v. City of Marshall, 5 
 W. Rep. 73, Philips, P. J., said : " But, 
 say the learned counsel, the plaintiff 
 was present before the jury, and from 
 this personal view they could form a 
 reasonable opinion of her age. This 
 again leaves an important fact to 
 mere speculation. 
 
 "The achievements in millinery 
 and decorative art, to say nothing of 
 the known power of cosmetics, has 
 attained such a degree of perfection 
 in our civilization as to make appear- 
 ances, at times, too deceptive to predi- 
 cate a rule of evidence on such pro- 
 fert in court. These arts possess a 
 sort of alchemy, which, while it may 
 not have been practiced in this in- 
 stance, can transmute deformity into 
 shape, decrepitude into apparent ro- 
 bustness, and furrows worn by care 
 and time into the smoothness of rosy 
 youth." 
 
 5 Supra, § 251. 
 
 In Griswold v. New York, etc. R. 
 Co., 115 N. Y.Rep. 61 (1889), Finch, 
 J., says : " The plaintiff, after proving 
 the injury which she had suffered from 
 the neghgence of the defendant com- 
 pany, was allowed to inquire of a 
 medical witness, having knowledge of 
 the case, as to the probability of her 
 recovery. The same question, with 
 slight and immaterial changes of 
 form, was permitted to be answered 
 by other competent medical witnesses, 
 and the exceptions to this class of evi- 
 dence furnished the sole ground of 
 appeal. 
 
 " The appellant relies upon Strohn 
 v. New York, Lake Erie, and West- 
 ern Railroad Company, 96 N. Y. 305, 
 and Tozer v. New York Central and 
 Hudson River Railroad Company, 
 105 Id. 617. We said of these cases 
 in Turner v. City of Newburgh, 109 
 N. Y. 309, that they ' simply preclude 
 the giving of evidence of future con- 
 sequences which are contingent, spec- 
 ulative, and merely possible as the ba- 
 sis of ascertaining damages,' and we 
 added 'that they in nowise conflict 
 with the rule allowing evidence of 
 physicians as to a plaintiff's present 
 condition of bodily suffering or inju- 
 ries, of their permanence, and as to 
 their cause.' The questions objected 
 to in this case related to the perma- 
 nence of the injuries, and sought a 
 medical opinion as to their continu- 
 ance in the future or a recovery from 
 their effects. The inquiry was proper 
 and competent. There is an obvious 
 difference between an opinion as to 
 the permanence of a disease or injury 
 already existing, capable of being ex- 
 amined and studied, and one as to 
 the merely possible outbreak of new 
 diseases or sufferings having their 
 cause in the original injury. In the 
 former case that disease or injury and 
 its symptoms are present and exist- 
 ing, their indications are more or less 
 plain and obvious, and from their 
 severity or slightness, a recovery may 
 reasonably be expected, or the con- 
 trary; while an opinion that some 
 new and different complication will 
 arise is merely a double speculation 
 
§ 26l DAMAGES. ^25 
 
 § 261. Excessive damages. — The courts are frequently 
 called upon to set aside verdicts on the ground that they 
 are excessive, but in these actions the defendant is usually 
 a railway or other private corporation. 
 
 The injuries received from the negligence of municipal 
 corporations are not ordinarily so severe as those inflicted 
 by the powerful forces in the control of railway corpora- 
 tions, and in actions against municipalities juries are per- 
 haps influenced by the fact that the tax-payers must dis- 
 charge any claim recovered against the corporation. Large 
 verdicts are obtained, however, in some instances where 
 the actions are against municipal bodies. Thus, in a 
 New York case, a verdict of ivv^enty-five thousand dol- 
 lars was recovered where the injuries were serious ;^ and 
 in a recent case before the United States Supreme Court, 
 the amount recovered was fifteen thousand dollars,^ The 
 court will not exert its power of setting aside a verdict as 
 excessive unless it is clearly against reason,^ and the in- 
 stances in recent years where this power has been used in 
 actions against municipal corporations are not numerous, 
 
 —one that it may possibly occur, and the permanence of the injury, and 
 the other that if it does it will be a then may express that ; but necessa- 
 product of the original injury instead rily the opinion must rest upon a bal- 
 of some other new and, perhaps, un- ance of probabilities, inclining the 
 known cause. medical judgment one way or the 
 " The questions objected to were other, and the opinion given is none 
 not inadmissible because they sought the worse because it expresses, and 
 the probabilities of a recovery. Cer- does not conceal, that it rests upon a 
 tainty was impossible. Medicine is reasonable probability strong enough 
 very far from being an exact science, to justify the information of an opin- 
 At the best, its diagnosis is little ion. Substantially, that was the re- 
 more than a g^ess enlightened by ex- suit of the evidence given, and the ob- 
 perience. The chances of recovery in jection to it was properly overruled." 
 a given case are more or less affected ' Ehrgott v. New York, 96 N. Y. 
 by unknown causes and unexpected 264. 
 
 contingencies ; and the wisest physi- ' District of Columbia v. Wood- 
 
 cian can do no more than form an bury, 136 U. S. 450 (1889). 
 
 opinion based upon a reasonable ' Sedgwick on Damages, § 1320 
 
 probability. It is argued that the ei seg. 
 witness must have an opinion as to 
 
536 
 
 DAMAGES. 
 
 262 
 
 In one case in Iowa, where the jury gave a verdict for 
 twenty-five thousand dollars, the court held that it was 
 excessive, and reduced it to fifteen thousand dollars.^ In 
 actions to recover damages for death, even where the 
 amount is limited, the court in some instances will exer- 
 cise the power of setting aside the verdict.* 
 
 § 262. Limitations.— The statute of limitations in the 
 locality where an injury is received is of much import- 
 ance and must be consulted in reference to the right to 
 sue. Claims against cities, based upon injuries received 
 upon highways, and other claims for personal injuries, 
 
 ' Cooper V. Mills Co., 69 la. 354 
 ( 1 886) . See H aniford v. Kansas- City, 
 15 S. W. Rep. 753; Lincoln v. Staley 
 (Neb.), 48 N. W. Rep. 887 ; McDon- 
 ald V. Ashland, 47 N. W. Rep. 434 
 Chicago V. Brophy, 79 111. 277 (1875) 
 Chicago V. Kelly, 69 111. 475 (1S73) 
 Jacksonville v. Lambert, 62 111. 519 
 (1872). 
 
 * In Houghkirk v. President, etc. 
 D. & H. C. Co., 92 N. Y. 219, Finch, 
 J., says : " Human lives are not all 
 of the same value to the survivors. 
 The age and sex, the general health 
 and intelligence of the person killed, 
 the situation and condition of the sur- 
 vivors and their relation to the de- 
 ceased ; these elements furnish some 
 basis for judgment. That it is slen- 
 der and inadequate is true, — Tilley v. 
 Hudson River R.R. Co., 29 N.Y. 252 ; 
 — ^but it is all that is possible, and while 
 that should be given (Mclntyre v. N. 
 Y. Cent. R.R. Co., 37 N. Y. 289), 
 more cannot be required. Upon that 
 basis, and from such proof, the jury 
 must judge, and, having done so, it is 
 possible, though not entirely easy, for 
 the General Term to review such 
 judgment and set it aside if it appears 
 excessive, or the result of sympathy 
 and prejudice. A difficult duty, we 
 
 grant, but not for that reason to be 
 abandoned. In its intrinsic nature it 
 js no more difficult than to determine 
 whether a verdict is excessive in an 
 action for slander or libel where the 
 injury is to reputation, or in actions 
 where pain and suffering may be con- 
 sidered in ascertaining the loss. The 
 Supreme Court has never abdicated 
 its power of review in such cases, and 
 should not in those under the statute. 
 The jury are compelled to judge in an 
 atmosphere freighted with sympathy. 
 In the General Term the deliberation 
 maybe more cool and thoughtful, and 
 while the judgment of the trial court 
 should not be lightly disturbed, it 
 should not be held necessarily con- 
 clusive. But it is impossible for us 
 to say that such error has been com- 
 mitted in the present case. We can- 
 not go to the opinions delivered to 
 ascertain, and must assume that the 
 order which denied a new trial for 
 excessive or partial damages, and 
 which was affirmed by the General 
 Term, was made after due and proper 
 consideration, and in the full perform- 
 ance of the duty of review which we 
 have always upheld and have not at 
 all narrowed or infringed." 
 
§ 262 DAMAGES. 537 
 
 are often required to be made within a short period, spec- 
 ified in city charters or in special laws ; ^ and unless 
 these claims are presented to the proper authorities, as 
 the law provides, the action will be barred. Provisions 
 of this character, therefore, act as short statute of limita- 
 tions. Apart from these the general statutes of the State 
 wherein the action is brought should be consulted for the 
 rules applicable to particular cases.* 
 
 1 Supra, § 138. 426, 29 Am. & Eng. C. C. 472. Wood 
 
 ' See People v. Oran, 121 111. 652 ; on Limitation ol Actions, p. 93. 
 Wabash County v. Pearson, 120 Ind. 
 
INDEX. 
 
 [References are to pages ^ 
 
 ACCEPTANCE OF STREET, how shown, 133, 134, 135. 
 importance of, 135, 136. 
 
 See Highways.. 
 
 ACTION OVER, by municipality if lot owner negligent, 175. 
 when contractor primarily liable, 334, 335. 
 held contract should provide for, 335. 
 none for failure to remove snow, 335. 
 
 See Respondeat Superior, Ultimate Liability. 
 
 lLABAMA upholds right of action for non-repair of highways, 
 102. 
 no duty on counties in, 126. 
 
 lRKANSAS, no action allowed for defective highways, 105, 262. 
 
 (LASTING, negligence in, near streets, 326. 
 See Respondeat Superior. 
 
 (RIDGES, meaning of word bridge, 209, 210. 
 
 technical meaning not usually important, 210. 
 
 early law regarding non-repair, 22. 
 
 municipalities to exercise reasonable care over, 210, 211. 
 
 necessity of erecting, a discretionary matter, 211. 
 
 statute requiring erection, 211. 
 
 over navigable streams, 212. 
 
 ultimate control in Congress, 212. 
 
 care to be exercised during building, 212. 
 
 removal of obstructions after work, 212. 
 
 duties during construction, 212, 213. 
 
 warning the public of danger, 213. 
 
 highways unsafe during building, 213. 
 
 approaches to bridge to be guarded, 213, 220. 
 
 barriers erected and removed, 213, 214. 
 
- . ^ T*Tx-iTT«r r References 
 
 540 INDEX. Vare to pages. 
 
 ^'KYDQY.^— continued. 
 
 damage from negligence during building, 214, 216. 
 
 injuring private property, 214. 
 
 injury by location of bridge, 215, 216. 
 
 preventing obstructions to flow of water, 216. 
 
 causing flowage on private property, 216. 
 
 injury to employees while building, 216, 217. 
 
 strength of bridge required, 217, 218. 
 
 history of stream to be considered, 217. 
 
 ordinary and extraordinary freshets, 217. 
 
 to afford a safe passageway, 217. 
 
 ordinary uses to be considered, 217, 218. 
 
 unusual loads passing over, 218, 234. 
 
 reasonable security required, 218 
 
 draw-bridge to afford safe passage for vessels, 218, 219. 
 
 special duties respecting, 235. 
 
 necessity of railings on bridges, 219, 220. 
 
 both sides to be protected, 220, 231. 
 
 leaning on railings of, 177, 220. 
 
 statutory and common-law rule, 220. 
 
 defects in plan, 220, 221. 
 
 must be safe if maintained, 221. 
 
 control of, under common law, 223. 
 
 control of in United States, 223, 224. 
 
 law of place determines, 224. 
 
 municipality controlling liable for neglecting, 224. 
 
 counties held liable for neglect to repair, 122, 123, 224. 
 
 conflicting decisions if municipality not chartered, 113- 
 
 130. 
 conflicting decisions where cities control, 96-112. 
 statutory liability in New England, 105. 
 common-law rules- generally accepted, no, 225. 
 indictment for non-repair, 225. 
 mandamus to compel repair, 225. 
 duty of repairing at common law, 225, 231. 
 condition in which bridges to be kept, 226. 
 whoever builds, municipality to repair public, 226, 229. 
 control of corporation essentia], 226, 227. 
 duty if another bound to repair, 227. 
 divided control, 227, 228. 
 New York and Brooklyn bridge, 230. 
 power to make repairs, 226, 227. 
 
References l _.-__, 
 
 aretapages.\ IJNDUX, J^j 
 
 BRIDGE %— continued. 
 
 extent of duty when bridge connects municipalities, 228, 
 
 229. 
 county, within city limits, 229. 
 defects in flooring of, 231. 
 other defects to be repaired, 231, 232. 
 no liability to persons straying, 232. 
 to be closed if wholly unsafe, 233. 
 notice of defects necessary to charge corporation, 233. 
 examination of, 233, 234. 
 reasonable inspection necessary, 234. 
 want of funds to repair, 235, 236. 
 does not excuse failure to protect the public, 236. 
 See Highways. 
 
 BURDEN OF PROOF, in contributory negligence, 448. 
 
 See Evidence. 
 
 BUSINESS OCCUPATIONS, municipality engaging in, must 
 
 exercise care, 68, 69. 
 furnishing water, 74, 75. 
 supplying gas, 76. 
 maintaining a public market, 77. 
 or a public wash-house, 77. 
 municipality carries on, subject to duties of others in like 
 
 work, 77. 
 State liable by statute for negligence in care of canals, 77. 
 
 CALIFORNIA, no action in, for defective highways, 105, 262. 
 
 rule criticised in recent decision, 105. 
 CARE, nature of the duty to exercise, 4. 
 
 to be used not to injure others, 4, 5. 
 
 Roman law required the exercise of, 5. 
 
 modern life makes use essential, 5. 
 
 standard of, established, 5, 6. 
 
 law of negligence limited by duty to exercise, 6. 
 
 when standard of care reached, 7. 
 
 reason furnishes the test, 7. 
 
 use of phrase, ordinary care, 7. 
 
 reasonable care preferable, 7, 11. 
 
 corporations to exercise reasonable, 7, 8. 
 
 minors to exercise reasonable, 8. 
 
 circumstances disclose amount of care to be used, 8, 9, 11. 
 
T..__„ r References 
 
 KA2 IJNJJliA. Lire ii> _pag-es. 
 
 CARE — continued. 
 
 if failure to exercise reasonable, duty is violated, ii. 
 
 extent of duty to exercise, 27. 
 
 duty to exercise applicable to municipal corporations, 27. 
 
 obligation of duty universal, 27. 
 
 in control of highways, 131, 132. 
 
 reasonable only, required, 143. 
 
 in performing public work, 265. 
 
 in caring for public property, 287. 
 
 See Streets, Sidewalks, Bridges. 
 
 CHARITIES, commissioners of, act-for the public welfare, 54, 55. 
 no responsibility of city for negligent acts, 55. 
 negligent driving by employee, 54. 
 negligent management of steam-tug, 56. 
 workhouses maintained for public good, 50, 57. 
 inmate of workhouse cannot recover from city if injured 
 
 by negligence, 50. 
 although city receives income from poor-farm, 50, 57. 
 
 CHARTER EXEMPTIONS, from negligence, 167. 
 in charter of city of Brooklyn, 167, 168. 
 upheld in earlier cases in New York, 167, 168. 
 limited by recent decisions, 169. 
 
 held unconstitutional under special circumstances, 169, 170. 
 inequitable, 170. 
 
 should not be granted municipalities, 170, 171. 
 requirements governing enforcement of liability distin- 
 guished, 171. 
 
 CHILD, negligence of, 425. 
 
 See Contributory Negligence. 
 
 CITIES, distinguished from involuntary corporations, no, 127. 
 grounds of liability of, for defective highways, 110-112. 
 to have entire width of streets ready for travel, 144. 
 See Municipal Corporations, Sidewalks. 
 
 COASTING, municipality permitting, 166, 167. 
 
 See Licenses. 
 
 COLORADO, action allowed in, if highway defective, 102. 
 
 COMPARATIVE NEGLIGENCE, not common-law doctrine, 
 
 403- 
 
 See Contributorv Negligence. 
 
a^e'^7p%Zl INDEX. 543 
 
 CONNECTICUT, no action for defective highway, 105. 
 except by statute, 250, 251. 
 decision in regarding public trees, 105. 
 
 CONTRACTOR, liabilities of, 322, 324. 
 
 when municipality may recover from, 335. 
 See Respondeat Superior. 
 
 CONTRIBUTORY NEGLIGENCE, what is, 15. 
 
 if damage attributable to, no recovery, 15, 16. 
 theory of, as a defense, 399. 
 when defeats action, 399-405. 
 dependent on facts and circumstances, 400, 401. 
 prior negligence of plaintiff no excuse, 401. 
 Davies v. Mann, 401. 
 no degrees of, 402. 
 damage to be caused by, 403. 
 comparison of negligence not allowed, 403, 404. 
 frequent defense by municipalities, 404, 405. 
 doctrine of identification overthrown, 405, 406. 
 Thorogood v. Bryan, 405. 
 imputing negligence to children, 408. 
 New York decisions on question, 409, 410. 
 other courts following this view, 411, 412. 
 contrary rule in Vermont, 412. 
 recent decisions favor latter rule, 413-421. 
 • tendency of law toward allowing action of child, 418. 
 negligent parent has not action, 422. 
 duty of person using highway, 423. 
 streets assumed to be safe, 423. 
 individual to exercise reasonable care, 423, 424. 
 facts disclose care to be used, 424. 
 care required of young children, 425. 
 care required from the blind, 58, 425, 435. 
 care required from the infirm, 425, 426. 
 individuals to consider their own condition, 426. 
 knowledge of danger affecting, 426. 
 person using walk known to be dangerous, 426, 427. 
 reasonable care in view of knowledge, 427, 428, 430. 
 crossing a swing-bridge in the night, 428. 
 walking on highway, with dangerous hole near, 428. 
 question for jury on facts, 430, 432. 
 positive charge of judge overruled, 430. 
 
TATT^-c-u- r References 
 
 544 INDEX. \_are to tages. 
 
 CONTRIBUTORY NEGLIGENCE— <r^«/m/«^. 
 
 duty of taking a different walk, 430. 
 
 going on dangerous bridge, 433, 434. 
 
 what is not contributory negligence, 434. 
 
 traveling at night, 434. 
 
 crossing a street between crosswalks, 434. 
 
 walking in the roadway, 435. 
 
 running on a sidewalk, 435. 
 
 galloping over a bridge, etc., 435. 
 
 intoxication as showing negligence, 435, 436. 
 
 Sunday travel, 436. 
 
 rule in New England, 437. 
 
 not adopted generally, 437, 438. 
 
 improper driving, 439. 
 
 racing as evidence of negligence, 439. 
 
 breach of statute must be cause of damage, 440. 
 
 driving an unsuitable horse, 441. 
 
 deviation from highway, 441. 
 
 whether contributory negligence, usually for jury, 441-444. 
 
 slight evidence will take case to jury, 443. 
 
 judge may decide if only one inference from facts, 442, 444. 
 CONTROL OF HIGHWAYS, essential to create liability, 133. 
 
 See Highways. 
 CONSTRUCTIVE NOTICE. See Notice. 
 
 CORPORATIONS, not responsible for wrongs under Roman 
 law, 19. 
 juristic or juridical persons, 19. 
 
 See Municipal Corporations. 
 COUNTIES, are usually corporations, 33. 
 duties of, dependent on powers, 33. 
 when not liable for non-repair of highways, 113, 114. 
 to be liable, must be under duty, 117-122. 
 liable for non-repair of bridges, 122, 123. 
 if municipal duty violated by, remedy by action should be 
 allowed, 122, 129. 
 
 See Highways, Quasi-Corporations. 
 CROSSWALK. See Sidewalks. 
 CULPA, is negligence, 4. 
 
 " Lex Aquilia " governed, 4. 
 no gradations of Aquilian, 9. 
 
 See Roman Law. 
 
areiapa^es.} INDEX. J/J.^ 
 
 DAKOTA, right of action for defective highway allowed in, 102. 
 
 DAMAGES, imposition of, for negligence upheld, 490. 
 
 municipalities and individuals alike subject to, 491. 
 
 must be reasonable result of negligence, 374, 491. 
 
 need not be foreseen, 492. 
 
 exemplary not allowed against municipal corporations, 492. 
 
 in actions for personal injuries, 495. 
 
 reasonable compensation allowed, 494. 
 
 present and prospective money loss recovered, 495. 
 
 compensation for bodily injury and pain, 494, 496. 
 
 future effects of injury to be considered, 496, 500. 
 
 loss of time as an element of damage, 497. 
 
 expenses of illness, 497. 
 
 evidence of value of time must be given, 498. 
 
 evidence of cost of medicine and amount paid physician, 
 
 497. 498. 
 nominal only when recovered, 498. 
 decrease in capacity to work, effect of, 500. 
 probable duration of life to be considered, 501. 
 deformity and bodily disfigurement, 503. 
 no precise measure of damage for these, 504, 505, 508. 
 pain an element of damage, 505. 
 pain, how shown, 505, 506. 
 
 mental suffering not separable from physical pain, 507. 
 fright producing damage, 509. 
 responsibility of defendant advocated, 510-314. 
 from fright held remote, 514. 
 aggravated by plaintiff's negligence, 515. 
 plaintiff must exercise due care, 516. 
 physician's negligence increasing, 517. 
 plaintiff not responsible if so increased, 517, 518. 
 duty of plaintiff when injured, 517. 
 in case of death, amount of, 519. 
 statutes governing in cases of death, 520, 521, 
 "pecuniary injuries" only recoverable, 521. 
 proof of these injuries, 521, 522. 
 in case of loss of service, 522, 523. 
 injury to parent's feelings not element of damage, 523. 
 different rules upon subject, 524. 
 in case of injury to property, 525. 
 amount recoverable, 525, 526. 
 
 35 
 
546 INDEX. [_art fJ^Jaga. 
 
 DAMAGES — continued. 
 
 recovery of interest, 523-527. 
 
 municipalities not liable for consequential, 280, 527. 
 
 evidence of, 528, 529. 
 
 wealth or poverty not to be shown, 528. 
 
 loss of income part of, 529. 
 
 speculative profits not to be shown, 529. 
 
 evidence of special fees of physician allowed, 530-534. 
 
 medical evidence of probable duration of disease, 534. 
 
 excessive, 535. 
 
 instances of large, against municipalities, 535, 536. 
 
 DEATH, actions to recover damages for,. 51.9. 
 
 See Damages. 
 
 DEFECTS in highways, liability for permitting, 80. 
 statutory liability for, 237. 
 frightening horses, 161. 
 liability when horses beyond control, 162. 
 street-roller frightening horses, i6i, 162. 
 See Streets, Sidewalks, Bridges. 
 
 DEGREES OF NEGLIGENCE, fiot recognized in ctdj>a, 9. 
 modern views of, 10. 
 reasonable care always to be used, 10. 
 Prussian view of, 11. 
 
 Austrian, Swiss, and French codes concerning, 11. 
 See Negligence. 
 
 DELAWARE, action allowed in for defective highway, 102. 
 
 DISCRETIONARY MATTERS, decision by municipality upon 
 final, 59. 
 governmental matters only within discretion, 59, 60. 
 manner of grading the streets discretionary, 60. 
 opening and closing streets, 60. 
 maintaining crosswalks, 60. 
 building sewers and drains, 60. 
 neglecting to remove dangerous walls, 60. 
 only liable if adjoin highway, 60. 
 prohibiting manufacture of fireworks, 61. 
 suspending ordinances, 62. 
 granting licenses, (52. 
 
 permitting firing of cannon in public Street, 62. 
 authorizing display of fireworks in street, ^i, 64, 65. 
 
i^r;:^.] INDEX, ■ 547 
 
 DISCRETIONARY MATTERS— f^«//««fi^. 
 
 power to legislate does not authorize breach of dutv, 65, 
 
 66, 67. 
 disregarding public safety not, 67. 
 
 DISTRICT OF COLUMBIA, action allowed in, for defective 
 highway, 102. 
 United States Supreme Court decisions in, 99, 100. 
 
 EMBANKMENTS adjoining street, 156, 157. 
 
 proximity of, to traveled way important, 156. 
 test of danger, 156, 157. 
 barriere, when essential, 158, 159. 
 dangerous entrances to private property, 160. 
 adjoining sidewalks, 190. 
 
 See Railings, 
 
 EVIDENCE, negligence of municipality must be shown, 446. 
 
 happening of accident not generally proof of negligence, 
 
 446. 
 facts surrounding, to be shown, 446. 
 legal duty to exergise care to appear, 447. 
 notice, actual or constructive, to be shown, 447, 
 compliance with local statutes to be proved, 447. 
 must establish connection between damage and negligence, 
 
 447- 
 
 must show defendant's neglect the proximate cause, 447. 
 
 difficulty in proving this, 448. 
 
 to prove proximate cause requires proof of plaintiff's con- 
 duct, 448. 
 
 burden of proof of contributory negligence, 448. 
 
 questions involved in inquiry, 448. 
 
 facts to negative plaintiff's negligence as cause, 448, 449. 
 
 explanation of occurrence dependent on facts, 449. 
 
 questions in regard to burden settled, 449, 450. 
 
 contributory negligence a defense, 450. 
 
 plaintiff to make di prima facie case, 450, 454. 
 
 English decision on questions, 450, 451, 454- 
 
 United States Court decision, 451. 
 
 other authorities putting burden on defendant, 453. 
 
 burden on plaintiff in some localities, 457. 
 
 New York decisions, 459-466. 
 
 diverse facts in part accountable for decisions, 461. 
 
548 INDEX. l^'^rpT^k 
 
 YNIQ^'^C^— continued. 
 
 evidence of similar accidents, 475. 
 
 United States Court decision allowing, 476. 
 
 reasons why testimony is competent, 476. 
 
 usually admitted, 477. 
 
 instances of, 477. 
 
 of like accidents held inadmissible, 477. 
 
 tendency toward one rule, 478. 
 
 to show other horses not frightened at object competent, 
 
 479- 
 to show horse has previously stumbled proper, 480. 
 of similar accident, should relate to one place, 480. 
 whether accident at similar place admissible, quaere, 480, 
 
 481. 
 of repairs after accident, 481. 
 not admissible to show negligence, 481, 482. 
 statement of rule and reasons, 481-483. 
 exceptions to rule allowed in New York, 484, 486. 
 of railing placed by municipality after accident improper, 
 
 484. 
 to show condition elsewhere, 486. 
 not usually admissible, 486. 
 instances where proper, 487. 
 should relate to time of accident, 487, 488. 
 witnesses must testify to facts, 487. 
 defendant's case, 488, 489. 
 defenses usually pleaded, 488. 
 
 of amount of expense of illness necessary, 497, 498. 
 of value of plaintiff's time, 498. 
 of amount of pain, 505. 
 of probable duration of life, 501. 
 of physician when incompetent to show pain, 506. 
 of special fees of physician, proper to show income, 530. 
 
 EXAMINATION OF PROPERTY, duty of municipal author- 
 ities, 156. 
 none made for nine years, held negligence, 156. 
 neglect to examine sidewalks, 187. 
 neglect to examine bridges, 234. 
 reasonable inspection necessary, 302. 
 
 EXCAVATIONS AND HOLES, highway unsafe when per- 
 mitted, 154. 
 
References ~] 
 areiofages.\ INDEX. r^g 
 
 EXCAVATIONS AND HOLES— ^^«//««^^. 
 
 municipality responsible for negligence concerning, 154. 
 sewer cover off, 154. 
 unguarded ditches and culverts, 154. 
 broken water-pipe, 154. 
 other instances, 154. 
 made by third persons no defense, 154. 
 caused by railroad company, 154. 
 caused by contractors, 154. 
 to be guarded and lighted at night, 155. 
 See Streets, Sidewalks, Bridges. 
 
 EXCESSIVE DAMAGES. See Damages. 
 
 FALLING OBJECTS, liability for, on sidewalks, 193. 
 
 See Sidewalks. 
 
 FIRE, DEPARTMENT, represents governmental power, 44. 
 no legal duty to establish or maintain, 44, 46. 
 negligence of, not attributable to city, 45. 
 may even destroy property without responsibility, 45. 
 city not responsible if insufficient water, 46. 
 or inadequate apparatus, 46. 
 
 city not liable for negligent driving of fire-engines, 46. 
 held not liable for defects in property used for fire pur- 
 poses, 46. 
 property of, should be kept in repair, 46. 
 defective fire-engine, 46. 
 
 city not responsible for negligent management of prop- 
 erty, 47. 
 even though property used for improper purpose, 47, 48. 
 no liability for negligence of fire insurance patrol, 48. 
 nor for neglect of board of fire commissioners, 49. 
 incorporated fire insurance patrol held not liable, 49. 
 held liable, 50. 
 negligence of inspector of boilers not that of city, 50. 
 
 FLORIDA, action allowed in, for defective highways, 102. 
 
 FUNDS, how far want of, excuses non-repair of highways, 136. 
 entire lack of a corporate fund, 137. 
 insufficient, not usually good defense, i37-i43- 
 want of, held proper defense, 137, 138. 
 must be absence of power to obtain, 138, 141. 
 
-^T-r^T^-^r r References 
 
 550 INDEX. \_are to pages. 
 
 FUNDS— coniinuee/. 
 
 want of, not an excuse for all inaction, 138, 139, 235. 
 
 unguarded pit in city street must be protected, 138. 
 
 not necessary in order to close street or bridge, 138, 141, 
 
 142. 
 want of, held sufficient excuse for lack of railing, 142, 157. 
 want of, no excuse if property owners liable for repairs, 
 
 141. 
 
 GEORGIA, action allowed in, for defective highways, 102. 
 no duty on counties in, 126. 
 
 GOVERNMENTAL AGENCIES represent the State, 31. 
 if incorporated are also independent, 31, 32. 
 if incorporated may be sued, 32, 33. 
 diverse duties of, 33. 
 
 GOVERNMENTAL DUTIES, characteristics of, 35, 41, 42, 43. 
 contrasted with municipal duties, 35, 36, 37. 
 solely, what are, 37, 38. 
 keeping the peace, 39. 
 enforcing laws and ordinances, 42. 
 preserving the public health, 43. 
 preventing destruction by fire, 44. 
 punishing criminals, 50. 
 caring for the poor, 54. 
 undertaking educational work, 58. 
 decisions upon discretionary matters, 59. 
 
 HEALTH OFFICERS act for public good, 43. 
 
 no liability of corporation for their negligence, 43, 44. 
 
 preserving public health a governmental duty, 43. 
 
 negligently allowing privy vault to be open, city not re- 
 sponsible, 43. 
 
 instance where member of health board was held liable, 
 44- 
 
 municipality not responsible if physician in public hospi- 
 tal negligent, 44. 
 
 HIGHWAYS, early law regarding actions for non-repair, 22, 23. 
 if no corporation in control, no action proper, 22. 
 if corporate body given power over action allowed under 
 early law, 23, 24. 
 
«f^7;:^'.j INDEX. 551 
 
 ■mGlIW AYSr— continued. 
 
 action for non-repair denied in Brooke, 22. 
 
 justified by statement of Chief-Justice Vaughan, 23, 24. 
 
 early actions for non-repair of, 25. 
 
 Scotch decision of 1798, 25. 
 
 Russell V. Men of Devon, 22, 86. 
 
 American decisions influenced by, 26, 27. 
 
 municipalities not always responsible for neglecting, 26, 27. 
 
 care of, municipal dtity relating to governaiental affairs, 78. 
 
 different views concerning duty to repair, 79. 
 
 under control of State, 79. 
 
 duty to repair ministerial, 80. 
 
 vi^eight of authority allows action for non-repair. So. 
 
 no common-law action in New England, 81. 
 
 decision in Hill v. Boston, 81. 
 
 grounds upon which case rests, 81-85. 
 
 not in accord with weight of authority, no. 
 
 early English decisions regarding, 85. 
 
 incorporated municipalities held liable, 88, 89, 96. 
 
 Scotch decision on question, 90. 
 
 Canadian decisions regarding repair, 92. 
 
 control of, by local boards in England, 92, 93. 
 
 boards not liable for mere nonfeasance, 93. 
 
 reason for rule, 96, 97. 
 
 acts of misfeasance create liability, 94, 95. 
 
 position of American courts as to repair, 98. 
 
 United States Court upholds right of action, 99, 100. 
 
 United States Court follows law of State, 107, 108. 
 
 American courts allowing action, 100-104. 
 
 State courts holding Massachusetts doctrine, 105. 
 
 inconsistency of courts denying action, 109. 
 
 right of action supported by authority and principle, no, 
 
 III, 112. 
 character of municipality not important, 113, 114, 129- 
 distinct corporate body must have control, 117, 129. 
 duty to repair must rest on municipality, 118, 119. 
 all corporations under duty liable for neglect, 116, 119. 
 townships held liable when duty rests on them, 122. 
 counties held liable if under duty, 122, 123, 126. 
 towns not liable if no breach of duty by them, 124, 125. 
 involuntary corporations held not liable, 127, 128. 
 control of by municipality, 132, 133. 
 
[KefereiKes 
 _ are to pages. 
 
 HIGHWAYS— eonftHued. 
 
 control of, how shown, 133, 134, 135. 
 
 ceasing to be such, 134, 135. 
 
 character of does not vary duty at common law, 236. 
 
 street, sidewalk, bridge, alley, are, 236. 
 
 rivers and seashore as, 236, 237. 
 
 tunnel under river is a highway, 236. 
 
 HILL V. BOSTON, leading decision ii> Massachusetts, 81. 
 facts of, 81, 82, 
 
 opinion of Gray, C. J., in, 81-85. 
 not a highway case, 85. 
 not sustained by early English law, 85, 86, 
 not sustained by weight of authority, 91, no. 
 
 HORSES, objects frightening, 160, 161, 325, 377- 
 
 See Streets, Contributory Negligence, Runaway Horses. 
 
 ICE, on streets and sidewalks, 195. 
 
 See Snow and Ice. 
 
 ILLINOIS, early recognition of liability if highways defective, 
 
 lOI. 
 
 influence of decisions in, loi, 102. 
 position of counties in, 127. 
 
 IMPUTED NEGLIGENCE, doctrine of, 408. 
 See Contributory Negligence. 
 
 INDIANA, action allowed in, for defective highways, loz. 
 
 action against counties for defective bridges, 122, 123. 
 
 INDICTMENT, remedy by, for neglect to repair highways, 24, 
 89, 91, 96, 117, 225. 
 
 INTOXICATION, when proves negligence of plaintiff, 435. 
 See Contributory Negligence. 
 
 IOWA, action allowed in, for defective highways, 103. 
 action against counties for defective bridges, 123. 
 
 JAILS, power to establish govermental, 50. 
 
 no responsibility of corporation for negligent mainten- 
 ance, 50. 
 
 destroyed by fire, through negligence, municipality not 
 accountable, 50. 
 
.^^r;^^s.] INDEX. 553 
 
 JAILS — continued. 
 
 injury to inmate from negligent care, no responsibility, 
 50, SI- 
 
 criminal cannot recover damages caused by defective ma- 
 chinery in, 50. 
 
 if city derives revenue, rule the same, 50, 51, 
 
 violated statutory duties of cities, held to give remedy, 
 52. S3- 
 
 municipality establishing independent jail held liable, 53, 
 54- 
 
 JUDGE AND JURY, functions of, on trial, 466, 467. 
 when question of negligence for judge, 466. 
 when for jury, 467. 
 whether but one reasonable inference often uncertain, 
 
 470-473- 
 restraint of court over jury salutary, 475. 
 clear cases only to be decided by the court, 475. 
 jury decides all disputed facts, 357, 475. 
 when judge need not go over case, 475. 
 
 KANSAS, action allowed in, for defective highways, 103. 
 
 KEEPING THE PEACE is a govermental duty, 39. 
 no liability for negligent performance, 34, 38, 39. 
 police officers represent power of State, 39, 40. 
 no action against municipality for negligent shooting by 
 
 policeman, 39. 
 nor for their other illegal acts, 40. 
 instance of responsibility for neglect of policeman, 41. 
 corporation not responsible for injury by mob, 41. 
 unless by statute, 41. 
 suppressing a mob a governmental duty, 41. 
 
 KENTUCKY, action allowed in, for defective highways, 103. 
 
 KNOWLEDGE of defect in highway, effect of, on corporation, 
 
 354- 
 effect of, on person using, 426. 
 
 See Notice, Contributory Negligence. 
 
 LATENT DEFECTS, to be examined for by corporation, 365. 
 See Property, Notice. 
 
554 INDEX. Ur/Z7:S^. 
 
 LIABILITIES. See Negligence, Highways, Municipal Corporations. 
 
 LICENSES, duties arising from granting of, 164. 
 giving involves governmental powers, 164. 
 granting usually discretionary, 62. 
 duties of municipality not to be violated by, 63, 64. 
 municipality to act within its powers in granting, 164. 
 liability of city, when powers exceeded, 164, 165. 
 licensees not servants of corporation, 164, 166. 
 permission to exhibit wild animals, 165. 
 safe place to be selected, 165. 
 authorizing discharge of cannon in park, 166. 
 no remedy for frightening horse, 166. 
 adjoining householder would have no remedy, 166. 
 licensing discharge of fireworks in street, 63. 
 held to create liability for damage to householder, 63, 64, 
 
 65. 
 
 licensing coasting, 166. 
 to do unquestionably dangerous acts, 167. 
 using shooting-gallery beside highway, 167, 
 authorizing lunatic to sell gunpowder, 167. 
 See Respondeat Superior, 
 
 LIFE, damages in case of loss of, 519. 
 
 See Damages. 
 
 LIGHTING OBSTRUCTIONS, duty in respect to, 164. 
 
 See Streets. 
 
 LIGHTING STREETS, obligation in regard to, 163. 
 
 when duty of undertaken, must be performed with care, 
 163, 164. 
 
 S.IMITATIONS, statutes of, applicable to municipal corpora- 
 tions, 536, 537. 
 provisions requiring notice of injury as, 537. 
 laws of forum to be considered, 537. 
 
 LOUISIANA, action allowed in, for defective highways, 103. 
 
 LUNATIC, not capable of exercising care, 12. 
 cannot be charged with negligence, 12. 
 municipality selling gunpowder to, 167. 
 
^rfro%ll,'\ INDEX. 555 
 
 MAINE, no action in, for defective highways, 105. 
 except by statute, 244, 245. 
 
 MANDAMUS to compel repair of bridge, 225. 
 
 MARYLAND, action allowed in, for defective highways, 103, 
 122. 
 
 MASSACHUSETTS, early decisions in, 26. 
 decision of Hill v. Boston in, 81. 
 position of towns in, 82, 83. 
 
 restricted liability of municipalities in, 69, 239, 283, 303. 
 no action for defective highways, 81-85. 
 except by statute, 239. 
 
 See Statutory Liabilities, Highways. 
 
 MEASURE OF DAMAGES, in cases of personal injury, 495. 
 in cases of injury to property, 525. 
 in cases of death, 519. 
 
 See Damages. 
 
 MICHIGAN, no action allowed in, for defective highways, 105. 
 except by statute, 258. 
 
 See Statutory Liabilities. 
 
 MINISTERIAL DUTIES, responsible for failure in, 34, 35, 70. 
 
 See Municipal Duties. 
 
 MINNESOTA, action allowed in, for defective highways, 103. 
 
 MINORS to use reasonable care, 8. 
 
 imputing negligence of parents to, 408. 
 See Contributory Negligence. 
 
 MISSISSIPPI, action allowed in, for defective highways, 103. 
 
 MISSOURI, action allowed in, for defective highways, 103. 
 
 no duty on counties in, 126. 
 MONTANA, action allowed in, for defective highways, 103. 
 MUNICIPAL CORPORATIONS, definition of, 29. 
 
 history of, 17. 
 
 growth of doctrine of liability for negligence, 17, 18. 
 
 early instances of liability, 18. 
 
 under the Roman law, 18. 
 
 independence of, 18. 
 
 not responsible for crimes, 19. 
 
 responsible for wrongs v/ithin their capacity, 19, 20. 
 
556 INDEX. [, 
 
 References 
 are to pages. 
 
 MUNICIPAL CORPORATIONS— ftf/2//«K^fl'. 
 liable for culpa of representatives, 20. 
 no question of power in these cases, 20, 21. 
 liable with all corporations to Aquilian action, 20, 21. 
 not different from private corporations in England, 21. 
 in England liable for wrongs from early date, 21. 
 first actions for negligence against, 22. 
 neglect to repair highways and bridges, 22, 23. 
 action allowed against, if in control of highway or bridge 
 
 23, 24. 
 neglecting to keep creek clear held liable in 1774, 25. 
 other instances of early liability of, 25, 26. 
 in America all corporations liable for torts, 26, 27. 
 liability for negligence conceded, 26. 
 qualifications of liability, 27. 
 should exercise care to protect others, 27. 
 dual character of, 29. 
 performing governmental duties not liable for negligence, 
 
 33, 34- 
 discharging municipal duties, liable, 34, 35. 
 test for determining character of duty, 35, 36. 
 conflicting decisions concerning highways, 78, 79. 
 English decisions, 85-97. 
 American decisions, 98-112. 
 conclusion from authorities, no. 
 what are quasi corporations, 113. 
 distinction not clear, 116. 
 
 liability dependent on existence of corporation, 116. 
 corporation must control highway, 117. 
 Russell V. Men of Devon not applicable here, 118. 
 duties of counties, 120. 
 authorities in United States as to quasi corporations, 120- 
 
 128. 
 conclusion from authorities, 129. 
 statutory liabilities as to highways, 237. 
 duties of municipalities respecting streets, 130. 
 duties of municipalities respectitlg sidewalks, 172. 
 duties of municipalities respecting bridges, 207. 
 negligence in public work, 264. 
 negligence in caring for property, 287. 
 
 MUNICIPAL DUTIES, what are, 35, 37, 41, 42. 
 solely, defined, 68. 
 
^'^''-"^^/l INDEX. 557 
 
 are to pages. _ 
 
 MUNICIPAL VtXii:!-^^— continued. 
 
 relate to business affairs of, 68. 
 
 regarding remunerative real property, 68. 
 
 are similar to those of individual, 68. 
 
 profit belongs to public, 69. 
 
 individual pays for careful performance, 69. 
 
 public may assume care will be used, 69. 
 
 part of city hall rented, liable, 69. 
 
 public building in common rented, liable, 69. 
 
 remunerative cemetery owned by city, 70. 
 
 poor-farm bringing income, 50, 71. 
 
 keeping docks and wharves safe, 71. 
 
 if city only controls liable, 72. 
 
 compensation usually paid, 72. 
 
 water approaches to be safe, 72. 
 
 river need not be unobstructed, 72. 
 
 sufficient fastenings to be supplied, 72. 
 
 city leasing not liable for neglect of lessee, 72, 73. 
 
 land approaches to be safe, 73. 
 
 string-pieces to be provided, 73. 
 
 public to be warned from dangerous, 73. 
 
 depth of water to be maintained, 74. 
 
 notice of insufficient, 74. 
 
 supplying water for compensation, 74. 
 
 cities assume obligations of private companies, 74. 
 
 if escape of water through negligence, liable, 75. 
 
 not liable for defects in private pipes, 76. 
 
 defective water-box, 76. 
 
 hole in street from water-box, 76. 
 
 city not bound to have water to extinguish fires, 76, 
 
 manufacturing gas, 76. 
 
 maintaining public market, 77. 
 
 providing public wash-house, 77. 
 
 engaging in any business, 77. 
 
 See Ultra Vires Acts, Highways, Property. 
 
 NEBRASKA, action allowed in, for defective highways, 103, 104. 
 
 NEGLIGENCE, definition of, i. 
 is absence of care, i. 
 actionable, variously defined, 2. 
 no agreement among writers in defining, 3. 
 
558 INDEX. [, 
 
 References 
 care tx? Pages. 
 
 NEGLIGENCE— ir(7«//««^^. '.":'.:. ^ 
 
 suggested definition, 3. 
 distinctive features of, 3. 
 nature of duty to exercise care, 4. 
 necessity of the use of care, 4. 
 Roman law required citizens to take care, 5, 
 modern civilization has broadened duty, 5. 
 standard of care established, 6, 
 departure from standard is negligence, 6. 
 intentional carelessness may be negligeijce, 6, 
 intent to produce injury not negligence, 7, iz. 
 amount of care to be exercised, 7. 
 guide to conduct furnished by reason, 7. 
 if " ordinary care," no negligence, 7. 
 advantages of phrase " reasonable care," 7. 
 corporations to use reasonable care, 8. 
 circumstances show what care is reasonable, 8, 9. 
 degrees of, 9. 
 
 not graded by Aquilian law, 9. 
 distinctions not now held important, 10. 
 failure to exercise reasonable care is breach of duty, 10, 11. 
 conduct must be that of reasonable man, 12. 
 person must be competent to be negligent, 12. 
 damage essential to, 13. 
 damage to person to whom duty is due, 13. 
 existence of duty essential, 13, 14. 
 damage to be attributable to, 14. 
 when damage flows from, 14. 
 See Proximate Cause, Damage^ Contributory Negligence. 
 
 NEVADA, action allowed in, for defective highways, 104. 
 
 NEW ENGLAND, law of, in regard to highways, 81. 
 criticism of law of, no, in. 
 
 restricted liability of municipalities in, 81, 120, 237-252. 
 See Statutory Liability, Property. 
 
 NEW HAMPSHIRE, no action in, for defective highways, 105, 
 106. 
 except by statute, 246. 
 former position in, 248. 
 
 NEW JERSEY, no action in, for defective highways, 106. 
 except by statute, 252. 
 
References "1 TiiTT^T-.^r 
 
 antofagis,^ INDEX. C pg 
 
 NEW YORK, action allowed in, for defective hlghwaj^s.ioo, loi. 
 early decisions in, loi. 
 liability of towns in, loi, 124. 
 
 See Highways, Quasi-Corporations. 
 
 NON-REPAIR of highways, 78, 
 of public buildings, 303. 
 of sewers, 295. 
 of other property, 307-311. 
 
 See Highways, Property, 
 
 NORTH CAROLINA, action allowed in, for defective high- 
 ways, 104. 
 
 NOTICE, twofold character of, 352. 
 
 not necessary if corporation performing work, 353. 
 
 walk defectively repaired unnecessary, 353, 354. 
 
 necessary to create duty to act, 353. 
 
 two forms of, 354. 
 
 actual, 354. 
 
 duty upon receipt of, 354, 355. 
 
 given street overseer Saturday night, accident Sunday, 354. 
 
 received at 9 a.m., accident at 1 p.m., 355. 
 
 form of, not important, 355, 356. 
 
 verbal, sufficient, 356. 
 
 unless statute interposes, 356. 
 
 of defects required in particular cases, 356. 
 
 knowledge by corporation the essential point, 356. 
 
 snow-storm as, 356. 
 
 of general defect raises presumption of particular, 357, 
 
 whether received for jury, 357. 
 
 evidence to show, 357. 
 
 report of commissioners as to bridge may show knowledge, 
 
 357- 
 entries in complaint book proper evidence of knowledge, 
 
 357- 
 to whom to be given, 357. 
 to street commissioner or overseer, 357. 
 to person recognized as village trustee, 357. 
 to a member of the common council, 357, 358. 
 to policeman, 359. 
 constructive notice, 359. 
 reason for rule of constructive, 359. 
 
- »»Tt-xT-.iT r He/ereiues 
 
 £00 INDEX. \_are to pages. 
 
 N OTIC ^— continued. 
 
 negligent ignorance to be punished, 359, 360. 
 corporation must fail to use reasonable care, 360. 
 defect to exist long enough to imply notice, 360. 
 instances where notice was not implied, 360, 361, 362. 
 previous obstruction not notice of new one, 363. 
 condition of whole walk when notice of particular defect, 
 
 363, 364- 
 length of time necessary to imply, 364, 365. 
 depends on circumstances, 361, 362, 365. 
 dangers readily perceived, 365. 
 defects not easily discoverable, 362, 365. 
 location of street important, 365, 366. 
 defect for a day held sufficient, 365. 
 from Tuesday until Saturday, 365. 
 other instances, 361, 366. 
 duty of examination, 366. 
 
 reasonable supervision only, required, 234, 307, 361, 366. 
 tendency of materials to decay to be regarded, 367, 368. 
 examination of public well, 367, 368. 
 frequent chemical examination unnecessary, 367. 
 not necessary to guard against all dangers, 369. 
 gutter giving way without warning, 369. 
 of defects caused by snow and ice, 370. 
 statutes upon subject, 370. 
 of injury distinguished, 370, 371. 
 
 NUISANCE, municipality creating, liable for depositing sew- 
 age on property, 272, 296, 297. 
 flooding with surface water, 269. 
 polluting stream or well, 273, 369. 
 
 See Public Work, Sewers. 
 
 OBSTRUCTIONS, what are permissible on streets, 145, 148. 
 hydrants, hitching-posts, etc., 150, 151. 
 municipality liable for permitting, 150. 
 mud and stones piled and allowed to remain on, 150, 151, 
 
 153- 
 stump of tree in public park, 151. 
 projecting car tracks above planks, 150. 
 wagon unlawfully authorized on street, 151, 152. 
 water-plugs projecting above street, 151. 
 
Refermces 1 t-\ttm-.-o- ^ 
 
 are to pages. J INDEX. ggl 
 
 OBSTRUCTIONS— ^(7«^'/;2««//. 
 
 road-scraper negligently left on street, 153. 
 
 standing horse and sleigh, 153. 
 
 loose cobble-stones, 153. 
 
 wire extending across street, 153. 
 
 objects likely to become slippery, 155, 156. 
 
 necessary on sidewalk, 179. 
 
 dangerous on sidewalk, 184. 
 
 See Streets, Sidewalks, Bridges, 
 
 OHIO, action allowed in, for defective highways, 104. 
 liability of counties denied in, 123. 
 
 See Quasi-Corporations. 
 
 OREGON, action allowed in, for defective highways, 104. 
 counties liable in, 123. 
 
 PARENT'S NEGLIGENCE, whether imputable to child, 408. 
 See Contributory Negligerue. 
 
 PAVEMENT, slight defects in, 184. 
 
 need only be reasonably safe, 185. 
 sloping, 185, 186, 206. 
 holes in, 185. 
 
 See Sidewalks. 
 
 PENNSYLVANIA, action allowed in, for defective highways, 
 104. 
 townships liable in, 122. 
 
 POLICE OFFICERS represent power of State, 39, 40. 
 cities not liable for their negligent acts, 34, 38. 
 notice to, of defects in street sufficient, 359. 
 See Keeping the Peace, Notice. 
 
 PRACTICE AND PLEADING, questions of, local, 44S- 
 
 PROPERTY of municipal corporations, 18, 68, 287. 
 
 right to hold of ancient origin, 18. 
 
 duties respecting remunerative, 68. 
 
 distinction recognized between public and income-bear- 
 ing, 69. 
 
 real property rented creates duty to exercise care, 69. 
 
 individual paying compensation entitled to protection, 72. 
 36 
 
562 INDEX. [i^;;:^i 
 
 PROPERTY— ^^«A«a^^. 
 
 docks and wharves to be safe, 73, 74. 
 
 water-works to be carefully managed, 74, 75, 76. 
 
 other remunerative property to be managed with care, 
 
 76, 77- 
 individual entitled to protection from negligence without 
 
 paying therefor, 72, iii, 288. 
 difference of opinion respecting governmental property, 
 
 287. 
 position taken on question, 387. 
 management of all, should be careful, 288. 
 weight of authority so holds, 288. 
 English decisions concerning management of, 288. 
 responsibility not dependent on income, 289, 290, 291. 
 sea walls to be carefully maintained, 288. 
 care to be exercised over public docks, 289. 
 responsibility for negligence respecting discarded beacon, 
 
 292. 
 highways are property, 294. 
 sewers to be cared for because property, 295. 
 duty to care for drains and sewers, 295. 
 duty to care for public buildings, 303. 
 negligence respecting public wells, 307. 
 negligent removal of wire owned by city, 308. 
 responsibility for defective fire-engine, 308. 
 contrary decisions on question, 308, 309. 
 responsibility for defects in hydrants, 309, 310. 
 contrary view, 309, 310. 
 
 responsibility for neglecting trees owned by city, 310, 311. 
 neglecting city dump-yard, 311. 
 
 negligence of city employee in using dump-cart, 311. 
 See Highways, Sewers, Public Buildings. 
 
 PROXIMATE CAUSE, damage to be result of negligence, 14, 
 372. 
 difficulty of applying principle, 372. 
 when damage follows negligence, 373. 
 various rules established, 373. 
 reasonable connection necessary, 373. 
 another independent cause interrupts connection, 373. 
 damage to follow in natural sequence, 373. 
 liability extends to reasonable results, 374, 
 
j/^r;sji] INDEX. 563 
 
 PROXIMATE CAUSE--ft'«ft««tf^. 
 
 these need not be foreseen, 491, 492. 
 
 proximity of time or space, not necessary, 374. 
 
 independent human agency interrupts connection, 376. 
 
 concurrent negligence of third person, 376, 377. 
 
 principles applicable to municipalities, 377. 
 
 city accepting work relieves contractor from responsibility 
 
 to others, 376. 
 accidents on highways, whether damage recoverable when 
 
 horses beyond control, 377, 378. 
 Massachusetts and Maine rule, 377, 378. 
 prevalent rule makes corporation liable, 378. 
 damage must be occasioned by negligence of corporation, 
 
 379. 
 way need only be in condition for ordinary use, 379. 
 horse merely shying, 378. 
 
 horse running away falling into excavation, 380. 
 whether shying or beyond control, liability if negligent, 
 
 161, 162,379. 
 colliding with obstruction, 380. 
 backing off a wharf, 380. 
 running over a bank, 379. 
 defect the real cause of damage, 380, 381. 
 . horse tied to post and escaping held no liability, 379. 
 if horse frightened by defect, liable for reasonable results, 
 
 163, 381. 
 what are such results, 382. 
 independent cause not to operate, 382. 
 co-operating causes do not affect liability, 383. 
 statutory liability held to require one cause only, 384, 385. 
 meaning of " sole cause," 384, 385. 
 want of railing, causing collision, is, 159. 
 when defect is not proximate cause, 385. 
 wrongful independent act of third party, 386, 387. 
 icy sloping sidewalk, 387. 
 contradictory decisions as to liability for injuries on, 387, 
 
 388. 
 evidence required to establish causal connection, 388, 389. 
 no liability when person thrown into excavation, 386. 
 responsible to boy pushed over edge of sidewalk, 389. 
 held no liability where horse falls over bridge railing, 391, 
 
 392- 
 
- _^_-^„_, r References 
 
 C64 INDEX. \_are to iiagts. 
 
 PROXIMATE CAXJ^'S'^— continued. 
 
 if defective bridge maintained, should be liable, 392. 
 
 the injury received to result from negligence, 392, 393. 
 
 increased damage when traceable to negligence, 394. 
 
 disease following injury, 394, 395, 
 
 person injured must use reasonable care, 396. 
 
 exposure after accident as sole cause, 395. 
 
 exposure as co-operating cause, 395, 
 
 whether negligence caused damage, for jury, 396. 
 
 contributory negligence as, 397. 
 
 See Contributory Negligeme., 
 
 PUBLfC BUILDINGS, care during the erection of, 282. 
 liability recognized in Rhode Island, 282. 
 liability denied in Massachusetts, 282. 
 county not liable for neglect during building, 283. 
 duty of municipality as owner of, 303. 
 New England rule of non-liability, 282, 303. 
 public use of, gives freedom from duty to exercise care, 
 
 283, 304. 
 unless portion is rented, 69, 304. 
 criticism of rule, 304, 
 arguments for contrary view, 304, 305^ 
 decisions holding municipalities responsible for defects in, 
 
 SOS- 
 defect in court-house, 304, 305. 
 authorities relating" to school buildings, 305. 
 defect in police station, 305. 
 
 negligence in storing naphtha In public building, 305, 306. 
 authorities relative to county buildings, jo6, 307. 
 See Property. 
 
 PUBLIC OFFICERS, duty if independent, 313. 
 
 responsible for neglecting ministerial duties, 313. 
 municipality not liable for acts of independent, 313. 
 unless discharging municipal duty, 313. 
 instances of liability of corporation, 314. 
 liability of, when exceeding powers of corporation, 349, 350. 
 See Respondeat Superior. 
 
 PUBLIC WORK, negligence in, 264. 
 
 reasonable care in all necessary, 265. 
 public to be protected, 265. 
 
af'^T;:"/'-] INDEX, 555 
 
 PUBLIC WORK— con/ime(i, 
 
 municipal corporations to observe duty, 265. 
 
 dangers of contrary doctrine, 265. 
 
 liability if work brings income to corporation, 266. 
 
 liability if positive injury to others, 266. 
 
 duty to exercise care requires further observance, 266. 
 
 governmental questions before work, 266. 
 
 questions of expediency and general plan discretionary, 
 
 266. 
 no responsibility in regard to such questions, 266. 
 courts not to review decisions of municipality, 266. 
 doing of work municipal act, 267. 
 all features of work to be reasonably safe, 267. 
 decisions respecting the plan, 267. 
 broad meaning of word plan, 269. 
 decision by United States Supreme Court, 267. 
 action maintained if direct injury by plan, 269. 
 direct injury from collecting surface-water, 269. 
 no liability for failing to furnish outlet therefor, 271. 
 surface-water disposed of under statute, 272. 
 liability for direct injury from sewage, 272. 
 even when results from plan, 273. 
 liability for pollution of stream by sewage, 273, 274. 
 liability for back flow from too small sewer, 275. 
 responsibility for negligence in constructing sewer, 27s. 
 unsafe work resulting from plan, 275. 
 safe plan should be selected, 275. 
 conflicting authorities on question, 276-278. 
 municipal corporation have no discretion to do unsafe 
 
 work, 279, 380. 
 grading to be done with care, 280. 
 no responsibility for consequential damages, 280, 527. 
 unless by statute, 280. 
 
 in grading corporation must not trespass, 281. 
 must not injure by negligence in the work, 281. 
 or by negligence in the way work is left, 281. 
 erecting public buildings, 282. 
 instance of liability for neglect in building court-house, 
 
 282. 
 no liability for blasting for school-house, 282. 
 doctrine of Hill v. Boston followed, 283. 
 instance of liability during construction of cistern, 284. 
 
,_ ,^„,, V References 
 
 566 INDEX. Yaritotages. 
 
 PUBLIC '^OV.Yi— continued. 
 
 other instances of negligence in public work, 284, 285. 
 reason for liability, 286. 
 
 See Respondeat Superior, Sewers. 
 
 QUASI-CORPORATIONS, rules concerning, 113. 
 counties, towns, and townships classed as, 113. 
 liabilities in caring for highways, 113. 
 distinguished from chartered corporations, 113, 114. 
 grounds of distinction, 114. 
 held to be govermental agencies, 114, 115. 
 cities also such agencies, 33. 
 unsettled state of law concerning, 115, 116. 
 reason for distinguishing counties, etc., as, not satisfactory, 
 
 lis, "6- 
 no general rule of law exempting from liability, n6. 
 all corporate bodies liable for neglect of duties, 116, 117. 
 possession of property gives rise to duty to take care, 117. 
 
 See Property. 
 danger to individual from corporate neglect, 117. 
 distinct body must control highway, 117, 118. 
 counties usually full corporations in United States, 118. 
 powers of limited, 118. 
 duties controlled by powers, iiS. 
 Russell V. Men of Devon not applicable here, 118. 
 existence of corporation and duty sufficient, 118. 
 no rule prevents action against independent body, 119. 
 English authorities sustain right of action, 119. 
 rule recognized in seventeenth century, 23, 24, 119. 
 classification of authorities in the United States, 118, 119. 
 decisions in New England inapplicable to question, 120. 
 liability for defective highways denied, even if duty on 
 
 city, 120. 
 authorities controlled by local statutes, 121. 
 method of caring for highways in the United States, 121. 
 duty must have rested on negligent body, 121, 122. 
 townships charged with duty and liable in Pennsylvania, 
 
 122. 
 counties under duty and liable in Maryland, 122. 
 counties in Indiana liable for defective bridges, 123. 
 similar rule in Iowa, 123. 
 counties liable in Oregon, 123. 
 
areiopag^es.i INDEX, e^Qy 
 
 QUASI-CORPORATIONS— continued. 
 
 recognition of principle of liability in Texas, 124. 
 States where duty rests on public officials, 124. 
 no duty on towns in New York, 124. 
 
 corporate duty must be violated to create corporate lia- 
 bility, 125. 
 decisions in New York regarding towns, 125. 
 no duty on counties in Alabama, 126. 
 nor in Georgia, Illinois, Missouri, and Mississippi, 126. 
 none in Indiana as to highways, 127. 
 broad distinction as to quasi-corporations recognized, 127, 
 
 138. 
 authorities supporting, 128. 
 conclusion from review of authorities, 139. 
 
 RAILINGS, necessity for, beside streets, 156. 
 
 proximity of danger decides question, 156, 158. 
 traveler to be able to use street safely, 156, 157. 
 highway as traveled, and not as located, to be regarded, 
 
 157- 
 jury decides necessity for as question of fact, 157. 
 road to be reasonably safe at night, 157. 
 driving off bank in the dark, 158. 
 curvature in road and embankment, railing required, 157, 
 
 158. 
 
 traveler must not be straying from the 'way, 158. 
 
 not necessary if place twenty-five feet from road, 159. 
 
 not required when roadway protected by curb and side- 
 walk, 159. 
 
 want of, causing collision, is proximate cause, 159. 
 
 when not necessary to be erected on private property, 160. 
 
 horse running away, necessity of, 376, 378. 
 
 want of funds may excuse erection of, 142. 
 
 temporary guards to be erected if no funds, 141, 188. 
 
 cellarways to be guarded with, 189. 
 
 duty if on private property, 189. 
 
 areaways to have, 189. 
 
 steps descending from sidewalk to have, 189, 190. 
 
 necessity of, if sidewalks raised, 190. 
 
 whether required on walk raised three to four feet, for 
 jury, 190. 
 
 on walks over ditches or streams, 190. 
 
568 INDEX. IfSoTJL 
 
 RAILING ^—continued. 
 
 to protect from dangers near sidewalk, 190. 
 
 walk to be in reasonably safe condition for use, 191. 
 
 when dangers on private property to be guarded, 191, 192. 
 
 removal of barriers by third persons, 193. 
 
 on bridges, 219, 350. 
 
 to be strong enough to support one leaning on, 220. 
 
 contrary view, 220. 
 
 both sides of bridge to be protected, 219, 220. 
 
 to guard the public during work, 148, 149. 
 
 REAL PROPERTY, care of, municipal affair, 68, 69. 
 distinction as to remunerative property, 6g. 
 care of, solely municipal duty, 68, 69. 
 corporation under obligations of all owners, 69, 70. 
 liability for negligence in care of cemetery, 70. 
 liable for negligence in management of poor-farm, 71. 
 liable for negligence in care of public building if rented, 
 
 69. 
 duty in respect to governmental, 303r 
 See Public Buildings. 
 
 REASONABLE CARE, phrase preferable to ordinary care, 7, 8. 
 
 See Care. 
 
 REASONABLE MAN, individual to act as, 12. 
 ordinarily prudent man as, 12. 
 diligens paterfamilias as, 12. 
 
 RECOVERY OVER. See Action Over. 
 
 REPAIRS SUBSEQUENT to accident cannot be shown, 481- 
 483. 
 
 cannot show railing erected by municipality after acci- 
 dent, 484. 
 
 not a confession of prior neglect, 481, 482. 
 
 RESPONDEAT SUPERIOR, rule of, 312. 
 not applicable to police officers,^ 41. 
 municipal corporation only liable if duty violated, 313. 
 necessity of negligence by its own agents, 313. 
 independent public officers, 313. 
 municipality when liable for their acts, 313, 314. 
 officers liable for neglect in ministerial acts, 315. 
 independent boards for public work, 315. 
 
a^tfo'^pT^''tJ INDEX, 569 
 
 RESPONDEAT SUPERIOR— w?^«.?(/. 
 powers of, 315. 
 
 when board is independent, 315, 316. 
 responsibility of such boards, 317. 
 when municipality answerable for &cts of public board, 
 
 315-317. 
 test of liability of corporation, 317, 318, 
 instances where city liable for acts of water commissioners, 
 
 318, 319, 320. 
 limitation of liabilty of city by statute, 318, 319, 
 method of appointment of board not decisive, 320, 321. 
 United States Supreme Court decision, 321, 
 liability for negligence of contractors, 32a. 
 extent of rule freeing employer, 322. 
 municipality cannot escape from its duties^ 322. 
 streets to be safe even when being repaired by contractors, 
 
 323- 
 city liable for neglect of contractor, 323, 324, 326, 327. 
 when city not liable for negligence of contractors, 324. 
 negligence of servant of contractor firing blast, 325, 326. 
 liability for negligent blasting, 326. 
 extent of duty to keep streets safe, 326. 
 liability if corporation controls servants of contractor, 
 
 326, 327. 
 or doing of particular work, 326. 
 instance of limited control and no liability, 327. 
 acts of subordinates to be within authority, 328. 
 responsibility of, for negligence respecting such acts, 328, 
 
 329- 
 no liability for torts beyond authority, 329, 
 defense of co-employment, 329. 
 application of, to municipal corporations, 329. 
 employees to be in same department of work, 329. 
 laborer injured by neglect of overseer, no remedy, 329, 330. 
 defense not always urged, 331. 
 fireman may recover for defective street, 331. 
 when laborer is not co-employee, 332, 3^5. 
 action over, by municipality, 334, 33$. 
 
 See I'udlic Officers, Action Over. 
 
 RHODE ISLAND, no action allowed in, for defective high- 
 ways, 106. 
 except by Statute, 257. 
 
570 INDEX. [af/u"^,. 
 
 ROADS, meaning of word road, 130. 
 distinguished from walks, 130. 
 snow on country, 195. 
 sidewalks on, 172. 
 
 what part of country to be cared for, 146, 147. 
 control of country, in the United States, 121, 129, 
 See Highways, Streets. 
 
 ROMAN LAW, recognized duty to take care, 5. 
 
 enforced duty of citizen, "alterum non Imdare" 4, 5. 
 
 culpa was negligence, 4. 
 
 various forms of culpa, 4, 5. 
 
 Aquilian culpa not graded, 9. 
 
 municipal corporations under, 18. 
 
 recognized independence of municipalities, 18, 19. 
 
 denied responsibility of corporations for crimes, 18. 
 
 liability of all corporations for some wrongs under, 18. 
 
 culpa of representatives attributable to municipalities, to. 
 
 Aquilian law made no exception in favor of corpora- 
 tions, 30. 
 
 responsibility for wrong of another not based on inten- 
 tion, 2X. 
 
 RUNAWAY HORSES, liability for damage to, 160, 161, 162, 
 378- 
 distinction if horses not beyond control, 160. 
 momentarily shying, 161, 378. 
 no responsibility for damage to, 161, 377. 
 result of statutory liability in some States for defective 
 
 highways, 384. 
 in cases of injury from two proximate causes, 383. 
 See Proximate Cause. 
 
 RUSSELL V. MEN OF DEVON, important English deci- 
 sion, 86. 
 scope of decision, 86, 87. 
 no corporation sued in, 87, 88, 89. 
 not applicable to American municipalcorporations, 118. 
 
 SCHOOLS, maintaining, a public duty, 58. 
 
 method of discharging duty discretionary, 58, 59. 
 school buildings should be safe, 58, 287, 305. 
 city held liable for direct injury from defect in plumbing, 
 30s- 
 
«^^r;:;^.] index. 571 
 
 SCHOOLS— continued. 
 
 city held liable in Massachusetts for trespass of school 
 
 board, 285. 
 liability of city for defect in school building denied, 58, 
 
 59. 8i- 
 liability of school district denied, 59. 
 liability of city of New York denied on special grounds, 
 
 59- 
 board of education independent, 59. 
 
 See Respondeat Superior, Public Buildings. 
 
 SEWERS, duties of municipality concerning, separated from 
 
 highway duties, 79. 
 decision of corporation in regard to, necessity of, final, 6a 
 no remedy for failing to supply, 60. 
 
 general plan of, within discretion of corporation, 266, 367. 
 performance of work of building, not governmental act, 
 
 267. 
 positive injury from plan affords remedy, 269, 278. 
 duty in respect to surface water, 269, 270. 
 no liability for percolation through underground drain, 
 
 272. 
 municipal officers not restrained from using iron grate, 
 
 272. 
 direct injury from flooding, 272. 
 liability unless from extraordinary storms, 273. 
 damage from sewage, 272, 278. 
 
 person connecting without authority has no remedy, 273. 
 one who connects below grade of sewer, has no remedy, 273. 
 damage for unskillful construction of, 273, 275, 279. 
 liability for damage from sewage if too small, 275. 
 unsafe work resulting from plan gives remedy, 275. 
 reasonably safe plan must be selected, 268, 275. 
 decisions conflicting, 267, 276, 277. 
 plan proved to be unsafe by experience to be changed, 
 
 277-279. 
 location of sewer, 279. 
 special damage to be shown, 280. 
 a portion of public property, 295, 300. 
 general liability for neglect to repair, 295. 
 responsibility in Massachusetts and New England, 295. 
 instances where liability for neglect to repair is denied, 
 
 296. 
 
572 INDEX. \_are if ^agef. 
 
 SEWERS — continued. 
 
 responsibility for nuisance from, conceded in these States, 
 
 296, 297. 
 distinction between highways and, 297. 
 unsatisfactory character of distinction, 297. 
 grounds of stated, 298, 299, 300. 
 
 one rule advocated for care of highway and, 399, 300. 
 instances of recognition of inconsistency, 299, 300. 
 control by corporation essential, 301. 
 must be public, 301. 
 
 respopsibility where they extend over private property, 302. 
 notice of defects necessary, 302. 
 reasonable examinations to be made, 302. 
 
 SHYING, horse merely, not beyond control, t6i, 378. 
 not separate cause of injury, 161, 162. 
 See Runaway Horses. 
 
 SIDEWALKS, duties in respect to, 172. 
 
 municipality must use reasonable care to ^ceep safe, 172, 
 
 173- 
 distinguished from streets, 172. 
 
 obligation to keep safe exists whoever builds, 173, 174, 175. 
 corporation to repair or remove walk, 173. 
 control by corporation essential, 173. 
 exclusive authority gives rise to liability, 174. 
 , need not be kept safe by lot owners, 173, 174. 
 must not be rendered unsafe by them, 174. 
 not negligent without knowledge of danger, 174. 
 lot owners responsible for their own negligence, 174, 175. 
 but cannot be made liable for other causes, 174. 
 municipality liable, has action over if lot owner negligent, 
 
 175- 
 not sufficient to notify lot owner of defect, 176. 
 wherever situated must be cared for, 175, 176. 
 on private property, may be public, 175, 176. 
 when must be made reasonably safe by corporation, 176. 
 duty to keep safe ministerial, 174. 
 duty to keep safe extends to all persons lawfully using, 
 
 176, 177- 
 distinction between this rule and statutory liability, 176. 
 blind person on, 176. 
 
 See Contributory Negligence, 
 
«f^ST4ll ' INDEX. 573 
 
 S I D^'WkLK'^—conthmed. 
 
 children on, 176, 177. 
 
 distinction made between exercise and play of, 176, 177. 
 questionable character of, 177-179. 
 liability to child for falling counter, 177. 
 no liability for fall of window-screens, 177. 
 no liability to boy sliding on awning-post, 177. 
 persons standing on, 177. 
 contradictory decision on question, 177, 178. 
 presumption that walks are safe, 175. 
 leaning on railing, 178. 
 necessary obstructions on, 179, 180. 
 vault under, 174, 175. 
 / persons using to be guarded from injury, 179, 180, 186. 
 right of owner to encroach on, 180. 
 limits of right, 180. 
 what is sufficient protection from dartger during w6rk, 180, 
 
 181. 
 question for jury, 181. 
 necessity of disturbing sidewalks, 180, 
 permit to be obtained, 181. 
 person doing work to guard public, 181. 
 failing in this, the municipality must protect, 181, 186. 
 'granting of permit, notice of necessity of protection, 181. 
 if barriers removed, notice of removal necessary, 181, 182, 
 
 See Hat lings. 
 whether boards dver holes in walk sufficient, for jury, 181. 
 charge of judge on question, 181. 
 during progress of work v/alks not to be as safe as before, 
 
 182. 
 reasonable security under circumstailces sufficient, 182. 
 defective construction of, 182. 
 unsafe should not be maintained, 182. 
 defects traceable to plan, 182, 183. 
 if result of plan a dangerous work, duty to remedy, 182, 
 
 183. 
 rule applied to neglect to erect barriers, 183. 
 highway, if unsafe, should be closed, 183. 
 if public invited on, should be safe, 183. 
 various purposes for which walks used, 184. 
 Stepping-stones on, 184, 188. 
 
574 INDEX. • [i^r;^- 
 
 SIDEWALKS— coniinued. 
 
 should not be dangerously placed, 184. 
 
 hitching-posts and trees on, 184. 
 See Streets. 
 
 slight unevennesses not defects, 184, 186. 
 
 defect should be noticeable to imply knowledge, 184. 
 
 cellar doors covering openings to be safe, 189. 
 
 areaways to be guarded, 189. 
 
 duty when wholly on private property, 189. 
 
 adjoining walk to be reasonably safe, 189. 
 
 if unsafe, railing must be erected, i8g. 
 
 where steps necessary to lower grade, railings to be pro- 
 vided, 189, 190. 
 
 if sidewalk raised, necessity of barriers, 173, 190. 
 
 boy crowded over edge of slightly raised walk, 190. 
 
 crossing ditch or stream, 190. 
 
 instance of jury question, 190. 
 
 unguarded drain adjoining sidewalk, igo. 
 
 dangerous descent from sidewalk to creek, 190. 
 
 defects near, 190, 191. 
 
 if dangerous for one using due care, barriers necessary, 
 190. 
 
 even outside highway limits, 190. 
 
 instances, 190. 
 
 liability for defects on private property, 191, 192. 
 
 city need not usually repair if defect not within highway, 
 191. 193- 
 
 unless public led to believ6 the walk is cared for, 192. 
 
 nature of defect in such a case not important, 192. 
 
 no obligation to one who is straying, 192. 
 
 injuries from falling objects, 193. 
 
 liability for insecure awnings, 193. 
 
 branches of trees, 193. 
 
 other falling objects, 193. 
 
 dangerous walls adjoining highway, 194. 
 
 slight depression near cellar window not defect, 185. 
 
 cement walk continued by plank walk some inches higher 
 held defect, 185. 
 
 hole which caused policeman to fall when making arrest 
 not, 185. 
 
 loose planks are defects, 185. 
 holes frequently are, 185. 
 
J^r;:^^.] index. 575 
 
 ^ITiWN KhYJS,— continued. 
 
 crosswalks to be safe, 185. 
 
 that crosswalk is above sidewalk no evidence of negligence, 
 
 185. 
 
 sloping stones of crosswalk, 185. 
 
 question for jury, 186. 
 
 objects left on sidewalks to be removed, 185. 
 
 reasonable care to be used to keep walks safe, 184, 185. 
 
 horses to be kept off, 187. . 
 
 bicycles to use road only, 187. 
 
 examination for latent defects, 187. 
 
 similar rule as to all corporate property, 187. 
 See Property. 
 
 what is proper examination usually for jury, 187. 
 
 notice to be taken of the tendency to decay, 187. 
 
 reasonable inspection only required, 188. 
 
 remote contingencies need not be provided against, 188. 
 
 dangerous descents from sidewalks, 188. 
 
 cellarways to basements, 188, 189. 
 
 dangers of city sidewalks, 188. 
 
 open descents to basements necessary, 188. 
 
 not reasonable to erect barriers before, 188, 189. 
 
 sides should be guarded, 189. 
 
 circumstances and situation in each case important, 189. 
 
 lighting at night, 189. 
 
 duty of one on highway to give warning of dangerous 
 walls, 194. 
 
 necessity of reasonable care to protect from falling ob- 
 jects, 194. 
 
 distinction between objects connected with sidewalk and 
 others, 194. 
 
 rule in statutory States, 194. 
 
 duties of owners of property adjoining highways, 194. 
 
 SNOW AND ICE on Streets and roads, 195. 
 duty to remove, not severe, 195. 
 negligently leaving mounds of snow, 195. 
 duty to make road passable, 195. 
 entire inaction sometimes excusable, 195. 
 character of road and custom of vicinity considered, 196. 
 on sidewalks, 196. 
 various views regarding, 196. 
 
576 moEx, [, 
 
 References 
 are io pageSf 
 
 SNOW AND IC^— continued. 
 
 distinction between smooth and ridgy ice, 196, 
 
 effect of locality upon opinionj 196. 
 
 impracticability of removing in some climates, 196, 197, 
 
 200. 
 reasonable effort sufficient to remove in others, 197. 
 corporation must be negligent to be liable, 197. 
 not required to exercise unreasonable care, 197. 
 weather and climate to be considered, 197. 
 corporation may wait reasonable time for lot owners to 
 
 act, 197, 198. 
 whether four days a reasonable time, for jury, 198. 
 sudden freezing, 198. 
 
 duty of corporation in case of, 198, 199, 263. 
 forty-eight hours between snowfall and accident not 
 
 enough, 198^ 
 may await a thaw, 198. 
 not obliged to sprinkle ashes, 198. 
 individuals have notice of condition, 19^. 
 dangerous formations necessary to create liability, 199. 
 notice also necessary, 199. 
 notice may be constructive, 199. 
 mere slipperiness held not sufficient, 200. 
 uneven formations required, 200. 
 mere slipperiness in some instances creates liability, 200, 
 
 201. 
 icy covering over all Walks not remediable, 260. 
 reasonable care would protect travelers from a known 
 
 slippery formation, 201. 
 even if ice smooth and level, 201. 
 mere slipperiness in hollow place sufficient, 266. 
 must be notice of patch of slippery ice> 201. 
 original idea of defect was a physical obstruction, 202. 
 departure of courts from this rule, 202. 
 smooth and slippery dangers recognized, 202. 
 general doctrine requires ice to be in ridges, 203. . 
 developed from statutes, 203. 
 courts agree upon responsibility iot trodden, uneven ice, 
 
 204. 
 same principle applies to ice trodden to a smooth con- 
 dition, 204, 205. 
 structural defects contributing to formations of, 205. 
 
a^fZT^Ss'X INDEX. 577 
 
 SNOW AND ICE— continued. 
 
 defective walks and gutters, 205. 
 
 responsibility for accumulations thus caused, 205, 206. 
 
 no liability for falling icicles, 206. 
 
 municipality not obliged to examine for these, 207. 
 
 liability when sidewalk slopes, 206, 207. 
 
 contradictory decisions, 206, 207. 
 
 no liability for new ice on sloping walk, unless evidence 
 
 that slope caused injury, 207. 
 statute provisions respecting liability, 207. 
 actual notice of existence of, sometimes required, 207. 
 no liability for, by statute, 207. 
 ordinances requiring owners to remove, 207. 
 penalty only recoverable, 207. 
 lot owners not answerable for damages from ice on walks, 
 
 208, 33S. 
 
 SOUTH CAROLINA, no action allowed in, .for defective high- 
 ways, 106. 
 except by statute, 262. 
 
 STATE, negligence cannot be imputed to, 30. 
 cannot commit legal wrong, 30, 31. 
 represented by its divisional branches, 31. 
 divisions of, when incorporated, have rights and duties, 32. 
 divisions of, may be sued if bodies corporate, 33. 
 
 STATES, diverse methods of caring for highways in the, 120, 
 121, 122. 
 duty to repair upon different bodies and persons, 123, 124. 
 allowing action against municipality for failure to repair, 
 
 102. 
 position of New York and Illinois courts, 100. 
 similar rule held in the following States : 
 Alabama, Colorado, Dakota, Delaware, 102. 
 District of Columbia, Florida, Georgia, Indiana, 102. 
 Iowa, Kansas, Kentucky, Louisiana, 103. 
 Maryland, Minnesota, Mississippi, Missouri, Montana, 
 
 103- 
 Nebraska, Nevada, North Carolina, 104. 
 Ohio, Oregon, Pennsylvania, Tennessee, 104. 
 Texas, Utah, Virginia, Washington, West Virginia, 104. 
 right of action denied in Massachusetts, 81, 105. 
 37 
 
578 INDEX. l^^Z'^Zs^ 
 
 STAT 'E,'»—coniznved. 
 
 similar rule held in the following States: 
 Arkansas, Caliornia, Connecticut, Maine, 105. 
 Michigan, New Hampshire, 105. 
 
 New Jersey, Rhode Island, South Carolina, Vermont, 
 Wisconsin, 106. 
 liability for defective highways imposed by statute, 81. 
 See Statutory Liability, Highways. 
 
 STATUTORY LIABILITIES for neglecting hig-hways, 81, 257. 
 reasons for existence of statutes, 237. 
 States denying common-law remedy, 105. 
 distinctive features of statutes, 176, 177, 178, 238. 
 right of action granted by, 238. 
 duty to repair frequently statutory, 238. 
 entire obligation of municipality expressed in statutes, 
 
 238. 
 injured person must be within terms of, 238. 
 rule when character of way described, 238. ■ , 
 importance of close examination of statutes, 239. 
 dissimilar in different localities, 239. 
 
 Massachusetts statute, 239. 
 terms of, 239. 
 
 defects and want of repair, 240. 
 liability in case of loss of life, 239. 
 amount of, 239, 240. 
 in case of bodily injury, 239. 
 municipality to exercise reasonable care and diligence, 
 
 239- 
 weight of load limited, 239, 240. 
 
 no liability for negligence in care of common or park, 240. 
 unless income received from use of, 240. 
 only liable to travelers, 240. 
 on Sunday only liable to persons who are not travelers, 
 
 241. 
 notice of injury required, 239, 240. 
 distinction as to young children, 240. 
 Sunday travel, 240, 241. 
 
 See Contributory Negligence. 
 construction of words " defept and want of repair," 241. 
 importance of decisions as to safety of highway, 242. 
 • , common-law liability materially greater, 242. 
 
^^/t:7:lL'^ jNDEx. 579 
 
 STATUTORY l.lliS,l\mW''&-~continued. 
 
 physical defects required, 242. 
 
 open trench in street, liability, 242. 
 
 open draw-bridge no liability, 242. 
 
 overhanging objects, 241, 242. 
 
 objects frightening horses, 161, 242. 
 
 defect to be sole cause, 242. 
 
 See Proximate Cause. 
 
 former rule as to notice abrogated, 243. 
 
 notice of injnfy reqri^ted, 243. 
 
 recent decisions in regard to, 243. 
 Maine statute, 244. 
 
 differs materially from Massachusetts statute, 244. 
 • • amount limited in case of bodily injury, 244. 
 
 unlimited in case of death, 245. 
 
 weight of load limited, 245. 
 * no liability to foot passengers for defects caused by snow 
 or ice, 245. 
 
 twenty-four hours' actual notice required, 245. 
 
 no recovery by person knowing of defect unless author- 
 ities notified, 245. 
 
 statute not to be extended by construction, 245. 
 
 traveled way only to be safe, 245. 
 
 entrances to private property need not be cared for, 245, 
 246. 
 
 injury confined to travelers, 244. 
 
 person injured to be traveling at time of injury, 245, 246. 
 
 boy playing not protected, 246. 
 
 person using highway as race-course not protected, 246, 
 247. 
 
 notice of injury, 245. 
 New Hampshire statute, 246. 
 
 more liberal character of, 246, 247, 248. 
 
 liability for damages from snow, 247. 
 
 weight of load limited, 247. 
 
 width of felloes of wheels limited, 247. 
 
 number of cattle on bridge, 247. 
 
 notice of injury required, 247, 248. 
 
 counties liable as towns, 248. 
 
 early statutes of State, 248. 
 
 asserted to have been derived from the common law, 248, 
 See States. 
 
580 INDEX. [, 
 
 References 
 are to pages. 
 
 STATUTORY lAK&TLYYY^^— continued. 
 Vermont statute, 249. 
 
 alteration of law in 1882, 249. 
 
 towns only liable, for defects in bridge, culvert, or sluice, 
 
 250. 
 common-law liability denied, 250. 
 
 weight of load limited, 250. 
 
 See PropefQ. 
 
 Connecticut statute, 250. 
 
 liability for " defective road or bridge," 251. 
 
 dangerous roads distinguished from those defective, 251, 
 
 252. 
 
 See Sidewalks. 
 
 statute for the benefit of travelers, 251, 252. 
 
 notice of injury required, 252. 
 
 New Jersey statute, 252. 
 
 limited in effect, 252, 253, 254. 
 
 no responsibility for neglecting sidewalks, 253. 
 
 special statute as to bridges, 254. 
 
 negligence in failing to construct, 254. 
 
 or in not repairing actionable, 254. i- 
 
 construction of statute, 254, 255. 
 
 held to protect persons navigating rivers, 254, 255. 
 
 does not protect mill-owner using abutments of bridge, 
 
 255, 256. 
 no duty owed by bridge to such person, 257. 
 
 Rhode Island statute, 257. 
 
 highways and bridges to be kept " in good repair," 257. 
 twenty-four hours' written notice of ice defect necessary, 
 
 257. 
 prior statutes reviewed in Providence v. Clapp, 257, 258. 
 no liability for falling objects, 258. 
 
 Michigan statute, 258. 
 terms of, 258, 259. 
 
 until 1887 no duty respecting Sidewalks, 259. 
 common-law liability denied by courts, loS. 
 and abrogated by legislature, 259, 261. 
 individuals have limited protection only, 260. 
 no liability for negligent construction, 260. 
 none for obstructions, or snow and ice, 260. 
 
i^r;:xi] index. 58 i 
 
 STATUTORY l^lABlLITlES—conimued 
 none for ditch not a culvert, 260. 
 none for unsafe alley, 260, 261. 
 notice of injury required, 261. 
 
 Wisconsin statute, 261. 
 terms of, 261. 
 
 action against county, 261. 
 remedy confined to cases in statute, 262. 
 negligent third party may be joined as defendant, 262. 
 notice of injury, 262, 
 
 South Carolina statute, 262. 
 provisions of, 262. 
 remedies confined to, 262. 
 
 See States. 
 
 West Virginia, code of, 262. 
 
 common-law liability admitted, 262. 
 action regulated by code, 262. 
 States providing no statutory liability, 262, 263. 
 States giving much limited protection, 263. 
 notice of injury generally required, 263. 
 frequently necessary in States where common-law rule ex- 
 ists, 263. 
 
 STEAM PIPES, explosion of, in streets, 132. 
 
 negligence of municipality not shown, 132. 
 
 STRAYING, no liability to person who is, 160, 192. 
 See Streets, Sidewalks. 
 
 STREETS, meaning of word street, 130. 
 often include sidewalks, 130. 
 here distinguished therefrom, 130. 
 cpmmon-law duty as to, 131, 132. 
 statutory duty distinguished, 131. 
 municipal corporations not insurers, 131, 132. 
 who may use, 131, 132. 
 children may play upon, 131, 
 laborer working on, may recover for injuries, 131. 
 reasonable care only, required from municipality, 132. 
 steam pipes in, 132. 
 
 must be under control of corporation, 133. 
 only public ways to be kept reasonably safe, 133. 
 
582 INDEX. \_are (0 ^a^es. 
 
 STREETS— (onttnue^. 
 
 control of, how shown, 133, 134. 
 
 proof that particular place of injury was part of way, 133; 
 
 supervision of, by municipality, 134. 
 
 acceptance of care of, creates responsibility, 135, 136. 
 
 how far want of funds excuses non-repair, 136-143. 
 
 question considered in Russell v. Men of Devon, 136. 
 
 not fully settled to the present time, 136. 
 
 entire lack of corporate fund, 137. 
 
 temporary exhaustion of funds, 137. 
 
 defense, where good, requires inability to get funds, 138, 
 
 141. 
 defense rests on theory that there is incapacity to act, 138. 
 want of funds does not always mean incapacity, 138. 
 .injury to individual the same if no funds, 139, 140. 
 corporation should protect the public, 140. 
 defense, not available where reasonable effort would have 
 
 avoided injury, 141, 142. 
 erecting guards and signals, 141. 
 if owner required to make repairs, city must enforce law, 
 
 141. 
 what is reasonable care of streets, 143. 
 locality and uses of street to be considered, 143. 
 rights of all to be regarded, 143. 
 decisions under statutes as to safety of streets available 
 
 on question, 144. 
 entire width of street in city to be safe, 144. 
 portion opened for use to be cared for, 144, 145. 
 sufficient width for travel to be in use in country, 146, 326. 
 duty in respect to the margins, 146, 147. 
 dangers rendering travel unsafe not allowed, 147. 
 expense of clearing road considered, 147. 
 permissible obstructions on, 145. 
 limits of exceptional user, 152. 
 trees, hydrants, etc., 145, 149, tsi. 
 protection during work on streets, 148, 149. 
 hitching-posts, 150. 
 
 jury to decide whether they interfere with use of way, 150. 
 if reasonably distant from traveled way not obstructions, 
 
 dangerous obstructions on, 151, 
 piles of stones or sand, etc., 151. 
 
if^Tj^J INDEX. 583 
 
 STREETS— coniinued. 
 
 projecting rails, 151. 
 
 projecting water-plug, 151. 
 
 wagon standing in street, 151. 
 
 obstructions authorized, to be temporary, 152. 
 
 road-scraper left on, 153. 
 
 horse and sleigh standing for a few minutes not obstruc- 
 tion, 153. 
 
 loose cobble-stones held not, in daytime, 153. 
 
 wire across highway is obstruction, 153. 
 
 stone left temporarily in gutter not, 153. 
 
 holes and trenches, 153, 154. 
 
 public must be protected from, 154. 
 
 whoever causes, streets to be reasonably safe, 154, 155. 
 
 open culvert and ditch, 154. 
 
 diverging roads at different levels, 154. 
 
 defective box-sewer, 154. 
 
 mere depression not a defect, 155. 
 
 deep rut held a defect, 155. 
 
 hole from breaking of pipe a defect, 155. 
 
 defects that should have been foreseen to be guarded 
 against, 155, 156. 
 
 slippery objects in streets, 155. 
 
 covers worn smooth by use, 156. 
 
 snow and ice on streets, 195. 
 
 excavations adjoining streets, 156. 
 
 whether way rendered unsafe by, depends on nearness, 
 
 156. 
 barriers to be erected if a declivity adjoins, 156. 
 if protection in distance, no barrier required, 158. 
 travel on highway to be rendered dangerous by, 158, 159. 
 collision from narrowness of highway, 159. 
 no duty to make private ways safe, 160. 
 objects frightening horses, 160. 
 municipality liable for, 160. 
 that horses are running away is no defense, 161. 
 unless statute rules interfere, 161. 
 
 overhanging banner held not a defect under statute, 161. 
 horse to be ordinarily gentle, 161. 
 object to be such as would frighten such a horse, 162. 
 streets not to be safe for runaway horses, 163. 
 no duty to light streets, 163, 164. 
 
584 INDEX. t 
 
 R^erences 
 .are towages. 
 
 QTK&'EIl?,— continued. 
 
 until plan of lighting is adopted, 164. 
 
 obstructions and excavations to be lighted, 164. 
 
 dangers in streets from acts of licensees, 164. 
 
 no responsibility unless acts unquestionably dangerous 
 
 authorized, 167. 
 or unless powers of corporation are exceeded, 164, 165. 
 liability for acts of coasters, 166. 
 
 liability for acts of persons discharging fireworks, 166. 
 charter exemptions from liability, 167. 
 instances of, 167, 168. 
 
 clause granting, held unconstitutional, 169. 
 inequitable character of; 170, 171. 
 
 SUNDAY, travel on, 241, 436, 437. 
 
 See Contributory Negligence. 
 
 SURFACE WATER, liability in respect to, 269. 
 
 when municipality responsible for direct injury by, 269. 
 no liability for failing to supply outlet, 271. 
 need not care for in grading, 270, 271. 
 but must not collect and turn upon private property, 270. 
 See Sewers, Public Work. 
 
 TENNESSEE, action allowed in, for defective highways, 104. 
 TEXAS, action allowed in, for defective highways, 104. 
 
 TORTS, actions based on, when proper against corporation, 21, 
 
 22. 
 action for tresspass brought against corporation at early 
 
 date, 21. 
 corporations liable for, 25, 26, 27. 
 no liability for torts of officers beyond authority, 48, 314, 
 
 329- 
 
 See Negligence. 
 
 TOWN HALL, no liability for failing to keep in repair, 303. . 
 contrary view expressed, 304, 305. 
 
 See Public Buildings. 
 
 TOWNS in New England not liable for defective highways, 81. 
 except by statute, 239. 
 
 not liable in New York except by statute, 124, 125. 
 in New York under no duty to repair highways, 124, 
 
^r/t:^"e,'\ INDEX. 585 
 
 TOWNS — continued. 
 
 if duty violated, remedy by action should be upheld, 122, 
 129. 
 
 See Quasi-Corporations. 
 
 TRAVELERS, statute liability for defective highways confined 
 to, 238. 
 who are, 176, 177. 
 when children are, 176. 
 persons drawing water on sidewalk, 177. 
 all persons lawfully using streets, 131, 176, 177. 
 who are, on Sunday in New England, 240, 241. 
 See Statutory Liability. 
 
 TREES, duty of cities as owners of, 310. 
 standing near roadway, 145, 149. 
 • may be protected by posts, 145. 
 
 to be kept in reasonably safe condition, 193. 
 
 branches falling from, 193, 194, 310. 
 
 duty to protect traveler from, 194. 
 
 duty held to depend on ownership, 310. 
 
 landowner not obliged to trim trees planted by city, 310. 
 
 city not obliged to trim its own trees in certain localities, 
 
 310. 
 street superintendent cutting down without authority, 338. 
 branch of tree overhanging road, 194. 
 See Obstructions. 
 
 ULTIMATE LIABILITY on wrong-doer, 334, 335. 
 
 recovery from lot owner for injury on street, 335, 337. 
 recovery from contractor, 335. 
 agreement of third party to keep street safe, 337. 
 judgment not necessary to recover, 337. 
 measure of damage in recovery, 337. 
 incidental expenses to be included, 337. 
 municipality sued may require wrong-doer to defend, 337. 
 effect of, no defense by person negligent, 337. 
 effect of notice of existence of defect to lot owner, 334. 
 municipality not relieved thereby, 335. 
 See Action Over. 
 
 ULTRA VIRES ACTS, general rule respecting, 336, 337. 
 powers of municipalities derived from charters, 337. 
 
S86 
 
 _„ r References 
 
 IND EX. \^are U> tagta 
 
 ULTRA VIRES kQT'a—conlinued. 
 
 acts beyond these powers held not to create liability, 337. 
 
 unsatisfactory character of rule, 338. 
 
 encourages ultra vires acts, 338. 
 
 tendency toward modification of rule, 338. 
 
 acts within general powers create responsibility, 339, 344- 
 
 distinction between such acts and those wholly ultra vires, 
 
 339. 
 
 responsibility in building unauthorized sewer, 340. 
 
 maintaining unauthorized bridge, 226, 340. 
 
 authorizing use of steam motors without power, 340. 
 
 granting improper licenses, 340. 
 
 responsibility for negligence in all authorized acts advo- 
 cated, 341. 
 
 distinction between contracts and torts, 341, 342, 344. 
 
 important United States Supreme Court decision, 342, 
 
 343- 
 municipality held for taxes on ultra vires business, 343. 
 
 effect of, 343, 344- 
 
 criticism upon, by Dillon, 343. 
 
 full force to be given to decision, 344. 
 
 other authorities advocating corporate responsibility, 345, 
 
 346- 
 New Jersey decision, 345, 
 Tennessee decision, 345. 
 
 importance of showing corporate direction of act, 346. 
 consideration of decisions upholding older rule, 346-349. 
 property of fire department used illegally, 47. 
 harbor board engaging in pilotage business, 338. 
 town officers moving flag-pole, 338. 
 ground of decision in Mayor v. Cunliff, 347. 
 bridge not in use by corporation at time of injury, 347. 
 question distinguished from ultra vires acts of employees, 
 
 349- 
 public officers sometimes personally liable for, 349, 350. 
 corporation not obliged to perform, to piotect others, 
 
 35°, 351- 
 duty of erecting railing on State land, 350, 351. 
 duty of obtaining permission to erect, 226, 227. 
 power of city to perform acts essential to create duty, 226, 
 
 SSI- 
 negligence of street superintendent cutting down tree, 338. 
 
^<r;ss.] rNDEx. 587. 
 
 UNITED STATES, decisiotis 6i Supreme Court regarding re« 
 pair of highways, 99, 107. 
 weight of authority in, as to remedy for non-repair, no. 
 
 UTAH, action allowed in, for defective highways, 104. 
 
 VAUGHAN, CHIEF-JUSTICE, of English Court Common 
 
 Pleas, 23. 
 statement of law regarding action for failure to repair 
 
 highways, 24. 
 earliest statement of law, 23. 
 importance of his opinion, 24. 
 sustained by recent decisions, 96, 97. 
 upheld by principle, no, in, 129. 
 
 VERMONT, no action allowed in, for defective highways, 106. 
 except by restricted statute, 249. 
 
 VIRGINIA, action allowed in, for defective highways, 104. 
 
 VOLUNTARY and involuntary municipalities, 118. 
 both chargeable with duties, 118, 119. 
 acceptance of charter as ground of responsibility, no, in. 
 and involuntary duties, 299, 300. 
 acceptance of privileges of statute, 75. 
 
 WALLS, no liability for dangerous, 60. 
 unless adjoin highway, 61, 62, 194. 
 failure to remove is breach of governmental duty, 61. 
 but failure to keep streets safe is breach of municipal 
 duty, 61, 194. 
 
 See Highways, Governmental Duties. 
 
 WASHINGTON, action allowed in, for defective highways, 104. 
 
 WATER SUPPLY, usually source of income, 74. 
 duty to exercise care concerning, 74. 
 furnishing distinguished from governmental duties, 74. 
 municipalities supplying, have obligations of private 
 
 companies, 74. 
 works private property of city, 74, 75. 
 State not interested in, 74. 
 damage by escape from mains, city liable, 75. 
 liable for careless use of hydrant, 75. 
 
588 INDEX. [, 
 
 Re/ereTices 
 are to pages. 
 
 WATER ^Xi^YIX— continued. 
 
 if escape from private mains, no liability of city, 75. 
 
 water escaping because of negligent construction, 75. 
 
 water-box in street becoming dangerous, 76. 
 
 city liable as owner of water-box, 76. 
 
 hole in street from, 76. 
 
 failing to properly maintain aqueduct, liable, 76. 
 
 no liability as owner for negligence in extinguishing 
 
 fire, 76. 
 
 See Property. 
 
 WEST VIRGINIA, action allowed in, for defective highways, 
 104, 262. 
 
 WHARVES, municipalities as owners of, 71. 
 
 must be kept in reasonably safe condition, 71, 72. 
 if controlled by city, this sufficient, 72. 
 payment of compensation one ground of duty, 72. 
 ownership or control, sufficient ground, 72, 288. 
 approaches to, must be safe, 72, 73. 
 river need not be kept unobstructed, 72. 
 adequate fastenings for vessels to be supplied, 72. 
 string-pieces to be provided, 73, 289. 
 during building, public to be warned, 73. 
 depth of water to be provided, 74. 
 See Property. 
 
 WISCONSIN, no action allowed in, for defective highways, 106. 
 except by statute, 261. 
 
 WRONG-DOER^ action over against, 334. 
 See Ultimate Liability. 
 
 [whole number of pages, 656.]