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storage 

US 922 AME , . 

A Setection of cases on the '"^^ 0\__ . 
HARVARD LAW LIBRARY APM1794 




3 2044 031 810 328 




HARVARD LAW LIBRARY 



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A SELECTIQN OF CASES 

ON 

THE LAW OF TORTS 

BY 

JAMES BABR AMES and JEREMIAH SMITH 



NEW EDITION BY 

ROSCOE POUND 

CAKTER PROFESSOR OF JURISPRUUENCB 
IN HARVARD UNIVERSITT 



CAMBRIDGE 

HARVARD UNIVERSITY PRESS 

1919 



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A "5 ( 3 2. 



This edition was first published in four parts. Part I (pp. 1- 
167) appeared September 25, 1916; part II (pp. 168-368), De- 
cember 1, 1916; part III (pp. 369-618), February 20, 1917, and 
part IV (pp. 619-1008), April 23, 1917. 

Copyright, 1893 and 1909, by James Babr Ames. 
Copyright, 1893 and 1909, by Jeremiah Smith. 
Copjrright, 1910, by Richahd Ames. 
Copyright, 1916 and 1917, by Roscoe Pound, 



OCT 2 1919 



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PREFACE 

The chief occasion for this edition is the change in the first-year 
curriculum in Harvard Law School, which assigned to other courses 
many things formerly appropriated to the course in the Law of Torts 
and hence treated in former editions. Thus causation is now treated 
in a course on the Principles of Legal Liability; certain excuses, such as 
consent and self-defence, are dealt with in that course, and trespass to 
land and conversion, which analytically might well be treated in the 
first chapter of this book, have been thought more appropriate to the 
coiu-se on the Law of Property. But the student should be warned that 
such matters of arrangement do not inhere in the law. They are mere 
matters of pedagogical expediency. He should bear in mind that the 
law is a unit and should be on his guard against thinking of it as made 
up of separate water-tight compartments. General principles which 
are of prime importance in connection with the subjects treated in this 
book are dealt with primarily in the courses on Property and on 
Criminal Law. Not the least important task for the student is to seek 
tonstantiy for these relations between the subjects studied. 

Again, the student should be warned that the arrangement proceeds 
upon pedagogical considerations and does not seek to set forth an anar 
lytical system. System is to be derived from study of the cases. The 
effort of the student to make one in connection with his summaries for 
review and his reading of the systematic discussions referred to in the 
notes will do more for him than learning in advance a system laid out 
by some one else. Similar reasons have led to omission of subheadings 
as far as consistent with convenience, leaving it to the student to 
S3rstemati2e the main headings for himself. For other purposes an 
index is offered instead. 

In arrangement of the cases advantage has been taken of the experi- 
ence of the late Dean Thayer, who had given the matter anxious con- 
sideration for some years. Indeed the instinct of Dean Ames for 
teachable cases, the sagacity of Judge Smith in finding significant 
cases, and the judgment of Dean Thayer in matters of arrangement 
left littie of moment for the present editor to do. 

ROSCX)E POUND 
Cambbido]:, July 18, 1917 

Note. The present volume is a reprint of the edition of 1916-17 
which was not stereotyped and was soon exhausted. A few recent 
decisions have been added in the notes. Otherwise there is no change. 



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TABLE OF CONTENTS 

PART I 

INTERFERENCE WITH THE PERSON OR TANGIBLE 

PROPERTY 

Chafteb I 

Intentional Interference paob 

Section 1. Assault and Battery 1 

Section 2. Imprisonment 19 

Chapter II 

Nsgligent Interference 

Section 1. Negligence as a ground of liability 29 

Section 2. Interests secured 45 

Section 3. The standard of care 63 

Section 4. Proof of negligence 98 

Section 5. The Duty of Care — Misfeasance and Non- 
feasance 120 

Section 6. Liability of occupiers of premises 147 ' 

Section 7. Liability to third persons of maker or vendor of 

a chattel 228 

Section 8. Contributory culpable conduct of plaintiff . . 263 

Chapter HI 

Unintended Non-negugent Interference 

Section 1. Trespass on land by animals 404 

Section 2. Injuries by animals 419 

Section 3. Dangerous use of land 452 

Section 4. Violation of statutory duty 504 



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VI CONTENTS 



PART II 



INTERFERENCE WITH GENERAL SUBSTANCE OR 
INTERESTS IN INTANGIBLE TfflNGS 



Chapteb IV 

PAOS 

Deceit 521 



Chapteb V 
Mauctous Pbosecution and Abuse op Pbocess 620 

Chapteb VI 
Defamation 657 

Chapteb VII 
Intebfebbnce with Pbivacy 797 

Chapteb VIII 
Intebfebence with Advantageous Relations 807 



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TABLE OF CASES 



PAGE 

Aiken v. Holyoke Street R. Co 337 

Akera ». Chicago R. Co 156 

Alden V.Wright 695 

Aldrich V, Scribner 576 

AUen V. Flood 939 

Allsop V. Allflop 808 

Andi«w8 V. Jackson 555 

Bachelder v. Heagan 496 

Banks v, Braman 340 

Bamee t>. Campbell 732 

Barr v, Essex Trades Council 998 

Barrows ». Bell 729 

Beach v. Hancock 7 

Beals V, Thompson 749 

Beehler v. Daniels 225 

Beinhom r. Griswold 415 

Bell r. Hansley 18 

Benedick v. Potts 115 

Bemina, The 352 

^ Bird V, Jones 24 

j BisaiUon v. Blood 370 

V Black V. New York, N. H. & H. R. 

Co 129 

Blood Balm Co. v. Cooper 233 

, Blyth 9. Birmingham Waterworks 

Co 67 

Bolchr. Smith 177 

Bond V. Chapin 655 

Bostock-Ferari Amusement Co. v, 

Brocksmith 427 

Bosworth V, Inhabitants of Swansey 379 

Bowenr. Hall 884 

Box V, Jubb 475 

BrattleboTo t;. Wait 510 

British Columbia Electric R. Co. v. 

Loach 302 

Bromage v. Prosser 662 

Brooker ». CoflBn '! 683 

Brown v. Collins 482 

>. Brown v. Kendall 30 

4^rown V. Randall 627 

Buch V, Amory Mfg. Co 160 

Bugg V. Wertheimer-Schwarts 

Shoe Co 549 

Bullock V. Babcock 95 

Buirill V, Stevens 548 



1^, 



PAGE 

utterfield v. Barber 595 

Butterfield v. Forrester 274 

Butterly v. Mayor of Drogheda . . 301 
Byne v, Moore 624 

Cabot V, Christie 684 

Campbell v. Boyd 183 

Campbell v. Spottiswoode 769 

Carmody v. Boston Gas Light Co. 113 

Carpenter v. Bailey 766 

Carr v. Hood 772 

Carskaddon v. Mills 191 

Carter v. Papineau 757 

Chambers v. Robinson 624 

Chapman v. Pickersgill 644 

Child tt. Affleck 738 

Cincinnati & Z. R. Co. v. Smith . . 150 

Clark t>. Molyneux 763 

Cleveland R. Co. v. Klee 327 

Cleveland Rollmg Mill Co. v, Cor- 

rigan 88 

Cloon V. Gerry 632 

ClutterbUck v. Chaffers 657 

Cole V. Turner 12 

Consolidated Traction Co. v. Hone 371 

Cooke V. Midland G. W. Ry 173 

Cooley on Torts (2 ed.) 398-400. . 409 

Cooper V. Seavems 685 

Corcoran v. Corcoran 811 

Cordiner v, Los Angeles Traction 

Co 281 

Coward v, Baddeley 13 

Cox V, Bmrbidge 438 

Coxhead v, Richards 740 

Crowley v. Groonell 437 

Culbertson v. Crescent City R. Co. 329 

Davies v. Gardiner 807 

Davies v. Mann 275 ^ 

Davies v, Solomon 809 

Davis V, Shepstone 792 

Decker v. Gammon 441 

DeGray v. Miuray 434 

Delacroix v. Thevenot 659 

De Marentille r. Oliver 15 

Deming v. Darling 553 

Denver Electric Co. v. Simpson . . 77 



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TABLE OF CASES 



PAGE 

Depue V, Flatau 137 

Dotty ». Peek 563 

DeS. ».DeS 1 

Dickson v, McCoy 440 

Dilworth's Appeal 602 

Dolphin V. Worcester Street R. 

Co 86 

Dorr V, Cory 661 

Doyle V, Vance 445 

Drown v. Northern Ohio Traction 

Co 296 

Dudley v. Briggs 869 

Dulieu V. White & Sons 60 

Dulin ». Bailey 862 

Dunshee V. Standard Oil Co 923 

Dyerson v. Union Facif c R. Co. . 324 

Eager v, Grimwood 866 

Eastern Trust & Banking Co. v. 

Cunningham 616 

Edgington v, fltzmaurice 537 

E. Hulton 4k Co. V. Jones 674 

England, Maritime Conventions 

Act, 1911, § 1 274 

England, Workmen's Compensa- 
tion Act, 1906, § 1 (c) 269 

Evans v, Walton 868 

Fargo Gas & Coke Co. v. Fargo Gas 

& Electric Co 608 

Fechley t^. Springfield Traction Co. 364 
Filbum V. People's Palace & Aqua- 
rium Co 422 

Fisher v. Bristow 627 

yFisher v. Feige 938 

V/Fletcher v, Rylands 452 

Flight V. Leman 651 

Flint & Walling Mfg. Co. v. Beck- 
ett 120 

Foshay v, Ferguson 630 

Foes V. Hildreth 695 

Foster v, Charles 588 

Fotheringham v. Adam Express 

Co 23 

Fottler V, Moseley 599, 601 

Freeman v. Venner 597 

Frost V. Eastern R. Co 170 

Fry v. Smellie 581 

Fuller V, Illinois Central R. Co. . . 299 

Gahagan v. Boston & Mame R. . . 317 

Galena R. Co. v. Jacobs 267 

Gallagher v. Brunei 539 

Gallagher v, Humphrey 186 



PAGB 

Galveston, H. A S. A. R. Co. v. 

Spinks 495 

Garfield Coal Co. v. Rockland 

Lime Co 202 

Garret v. Taylor 863 

Gautret v. Egerton 179 

Genner v. Sparkes 19 

Georgia Pacific R. Co. v, Lee 343 

Giles V. Walker 493 

Glamorgan Coal Co. v. South 

Wales Miners' Federation 887 

Gorris v. Scott 516 

Grainger v. Hill 653 

Haddrick v, Heslop 639 

Halberstadt v. New York Life In- 

siurance Co 620 

Hankmson v. Bilby 661 

Hanson v. Globe Newspaper Co. . 665 

vHart V. Aldridge 864 

Hart V, Allen 42 

Hatchard v. M^ 813 

Heaven v, Pender 156, 243 

Heege v, Licht 498 

Hemming v. City of New Haven . 398 

Herrick v. Wixom 149 

Hill V. Glenwood 71 

Hohnan v. Chicago R. I. & P. R. 

Co 506 

Hohnee v. Missouri Pacific R. Co. 328 

Horan v, Byrnes 928 

Hughes V. McDonough 829 • 

Hu^es V, Samuels Bros 831 

Hulton & Co. V. Jones 674 

Hunicke v. Meramec Quarry Co. . 134 
Huset v. J. I. Case Threshing Ma- 
chine Co 235 

Hutchins v, Hutchins 847 

Hutchinson v. St. Louis & M. R. R. 
Co 330 

Ibottson V. Peat 937 

Illinois Iron A Metal Co. v. Weber 93 

Indermaur v. Dames 194 

Indianapolis Street R. Co. v. Daw- 
son 204 

Innes v. Wylie 13 

Jackson v, Hopperton 790 

J. deS. V. W. deS 1 

Jersey City Printing Co. v, Cassidy 897 

Joannes v. Bennett 747 

Joannes v. Burt 694 

Jones V, Charleston & W. C. R. Co. 279 

Jones V, Littler 690 



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TABLE OF CASES 



IX 



PAGE 

Kearney v. London, Bi 6c 8. C. R* 

Co 102 

Keeble v. Hickeringill 935 

Keffe9.Milwaukee&St.P.R.Co. 165 
K«th V, Worcester Street R. Co. . 73 
Kellogg v. CAiteago & N. W. R. Co. 345 

Kelly V. MetropoUtan R. Co 125 

Kidney v, Stoddard 561 

Kk>U8 p, Hennessey 846 

Knupfle V, Knickerbocker Ice Co. . 504 

Koplitx V. City of St. Paul 362 

Kuzniak v, Koaminfiki 926 

Lake Erte A W. R. Co. v. Ford . . 79 

Lary v. Cleveland R. Co 157 

Lawless P. Anglo-Egyptian Cotton 

Co 734 

Leathern v. Craig 952 

Lewis p. Cori>in 849 

Low V. Bouverie 580 

Luetzke v. Roberts 598 

fLumhy v. AUday 687 

^Lumley v, Gye 874 

MeComb 9. Brewer Lumber Co. . 550 
McCord Rubber Co. v. St. Joseph 

Water Co 493 

McNee v. Cobum Trolley Track 

Co 200 

McPherson v. Buick MoUnr Co. . . 251 

McPherson v, Daniels 677 

Mabardy 9. McHu|^ 613 

Mack V. Sharp 644 

Malachy p.Soper 816 

Maroeau p. Rutku[id R. Co 106 

Marks v. Baker 755 

Martor ». Ball 430 

MarshaU v. Welwood 477 

MaiMl 9. White 989 

Mason v. Keeling 433 

Maung Kyaw Dun 9. Ma Kyin . . 425 

Max Morris, The ...- 269 

May V, Burdett 419 

Maynard v, Boston & M. R. R. . . 147 

Mwedith v. Reed 76 

Merivale v. Carson 775 

Metropolitan R. Co. v. Jackson . . 98 
Midland Insurance Co. v. Smith . 841 

Milissich 9. Ltoyd's 731 

Miller 9. David 811 

Miners' Federation 9. Glamorgan 

Coal Co 887 

Mitchell 9. Jenkins 636 

Mogul Steamship Co. 9. McGregor 

&Co 906 



PAGE 

Morse 9. Hutchins 604 

Munster 9. Lamb 697 

Nash 9. Mih&eioia Title & Trust 

Co 672 

Nashua Iron & Steel Co. 9. Woroea- 

ter & N. R. Co 288 

Neal 9. GiUett 263 

Nehring 9* The Connecticut Co... 308 
Newcomb 9. Boston Protective 

Dep't 391 

Newman 9. Phillipeburg Horse Car 

Co 366 

Nichols 9. Maisland 468 

Nieboer 9. Detroit Electric Ry. . . 295 

Nocton 9. Lord Ashburton 578 

Norfolk & W. R. Co. 9. Dean's 

Adm'r 320 

Northern P. R. Co. 9. Jones 278 

Note (Y. B. Lib. Assis. f. 104, pi, 

85) 19 

Noyes 9. Colby 404 

Gates 9. MetropoUtan St. R. Co. . 294 

Oberlin v. Upson 16 

O'Keefe 9. Chicago, R. I. A P. R. 

Co 321 

Osbom 9. Vdtch 6 

Osborne 9. McMasters 513 

Padmore 9. Lawrence 736 

Pasley 9. Freeman 621 

Passaic Print Works 9. Ely A 

Walker Dry Goods Co 913 

Payne 9. Chicago & A. R. Co. ... 265 
Pearson & Son 9. Lord Mayor of 

Dublin 617 

Peck 9. Tribune Co 672 

Pickett 9. Walsh 996 

Pickett 9. Wilmington A W. R. 

Co 322 

Pierce 9. Stablemen's Union 1004 

Pike 9. Hanson 21 

Plant 9. Woods 978 

Polhill 9. Walter 592 

PuUman 9. Walter Hill & Co. ... 758 
Purcell 9. Sowler 727 

Quinn 9. Leathem 952 

Radley 9. London & Northwestern 

R. Co 283 

Ratclifife v. Evans 854 

Ravenga 9. Mackintosh 634 

Read 9. Coker 3 



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TABLE OF CASES 



PAGE 

Bice v. Coolidge 710 

Richmond F. & P. R. Co. v. Mar- 
tin's Adm'r 374 

Roberson v, Rbchester Folding Box 

Co 799 

/Ryalls V, Leader 714 

U Rylands f. Fletcher 462 

Scott, Collisions at Sea, 13 Law 

Quart. Rev. 17 273 

Scott v. Stansfield 695 

Schwabacker v. Riddle 606 

Seaman v, Netherclift 703 

Secor r. Harris 691 

Sheehan v, St. Paul & D. R. Co. . 154 

Sheffill r. Van Deusen 659 

Shultz ». Old Colony Street R. Co. 359 

Slater Trust Co. r. Gardiner 574 

Smith ». BoUes 605 

Smith ». Hobeon 694 

Smith V, Land Corporation 560 

Snyder w. Andrews 658 

Southcote ». Stanley 222 

Southern R^. Co. v. Grizzle 127 

South Wal€« Miners' Federation p. 

Glamorgan Coal Co 887 

Spade V. Lynn & Boston R. Co. . . 45 
S. Pearson & Son ». Lord Mayor of 

Dublin 617 

Stanley V. Powell 35 

Starkweather v, Benjamin 612 

State V. Gordon 535 

Steams v. Sampson 10 

Steele ». Burkhardt 388 

Steinmetz t;. Kelly 334 

Stephens v. Myers 2 

Stevens v. Nichols 214 

Stevens v. Sampson 761 

Steward v. Gromett 625 

Stiles V. Geesey 282 

Stone V, Carlan 827 

Stone V, Dry Dock R. Co 90 

Sullivan v. Old Colony Street Ry. 41 
Sutton V, Town of Wauwatosa . . . 381 

Sweeny v. Old Colony R. Co 207 

Swift V. Rounds 542 



PAGE 

Tarleton ». M'Gawley 864 

Thomas V. Bradbury, Agnew & Co. 782 

Thorley v. Lord Kerry 679 

Tillett V. Ward 406 

Tomlinaon v, Warner 646 

Tonawanda R. Co. v. Munger . . . 406 

Toogood V, Spyring 750 

Tracy V.Wood 83 

Troth V.Wills 448 

Tuberville v. Savage 2 

Tuttle V. Buck 918 

TutUe V. Gilbert Mfg. Co 220 

Union Pacific R. Co. v, Cappier . . 131 

United States v, Richardson 6 

U. S. Compiled Statutes, 1913, 

§ 8659 269 

UsiU V, Hales 716 

Vanderbilt v, Mathis 641 

Vaughan v. Menlove 63 

Vegelahn r. Guntner 968 

Wagner V. Bissell 410 

Jason V. Walker 720 

Watson V, Jones 582 

AVeaver V. Ward 29 

Webbv. Beavan 682 

Welch t;. Wesson 377 

Westminister Laundry Co. v. Hesse 

Envelope Co 838 

Wetmore v. Mellinger 649 

White y. Carroll 707 

White w. Mellin 819 

Wilkinson t». Downton 58 

Williams y. State 558 

WiUiamson v. Freer 753 

WiUy V, Mulledy 515 

AVing V. London General Omnibus 
I Co Ill 

^interbottom V. Wright 228 

Wood V. Lane 20 

Work V. Campbell 533 

Yates V, South Kirkby Collieries . 61 
Yerkes v. Northern Pacific R. Co. 70 



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CASES ON TORTS 



PART I 

INTERFERENCE WITH THE PERSON OR TANGIBLE 

PROPERTY 



CHAPTER I 
INTENTIONAL INTERFERENCE 



Section I 

Assault and Battery 

I. De S. and Wife v, W. De S. 

At the Assizes, coram Thorpe, C. J., 1348 or 1349. 

Reported in Year Book, Liber Assiaarum, folio 99, placitum 60. 

/. De S. & M. uxor ejits gverunt de W, De S. de eo quod idem W. 
anno, &c., vi et armis, &c,, apud S., in ipsam M. inavUum fecit, et 
ipsam verberavit, &c. And W. pleaded not guilty. And it was found 
by verdict of the inquest that the said W. came in the night to the 
house of the said L, and would have bought some wine, but the door 
of the tavern was closed; and he struck on the door with a hatchet, 
which he had in his hand, and the woman plaintiff put her head out 
at a window and ordered him to stop; and he perceived her and struck 
with the hatchet, but did not touch the woman. Whereupon the 
inquest said that it seemed to them that there was no trespass, since 
there was no harm done. Thorpe C. J. There is harm, and a trespass 
for which they shall recover damages, since he made an assault upon 
the woman, as it is found, although he did no other harm. Wherefore 
tax his damages, &c. And they taxed the damages at half a mark. 
Thorpe, C. J., awarded that they should recover their damages, &c., 
and that the other should be taken. Et sic nota, that for an assault one 
shall recover damages, &c.^ 

* Smith V. Newsam, 1 Vent. 256; Tombs v. Painter, 13 East, 1; Lewis v. 
Hoover, 3 Blackf. 407; Handy v. Johnson, 5 Md. 450; People v. Carlson, 160 Mich. 
426; Saunders v. Gilbert, 156 N. C. 463; Leach v. Leach, 11 Tex. Civ. App. 699 
Accord. 



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2 STEPHENS V. MYERS CCHAP. I. 

TUBERVILLE v. SAVAGE 

In the King's Bench, Trinity Term, 1669. 
Reported in 1 Modem Reports, 3. 

Action of assault, battery, and wounding.^ The evidence to prove 
a provocation was, that the plaintiff put his hand upon his sword and 
said, " If it were not assize-time, I would not take such language from 
you." The question was, if that were an assault ? The court agreed 
that it was not; for the declaration of the plaintiff was that he would 
not assault him, the judges being in town; and the intention as well 
as the act makes an assault.^ Therefore, if one strike another upon the 
hand or arm or breast, in discourse, it is no assault, there being no 
intention to assault; but if one, intending to assault, strike at another 
and miss him, this is an assault: so if he hold up his hand against 
another in a threatening manner and say nothing, it is an assault. In 
the principal case the plaintiff had judgment. 



STEPHENS V. MYERS 

At Nisi Prius, coram Tindal, C. J., July 17, 1830. 

Reported in 4 Carrington & Payne, 349. 

Assault. The declaration stated that the defendant threatened 
and attempted to assault the plaintiff. Plea: Not guilty. 

It appeared that the plaintiff was acting as chairman at a parish 
meeting, and sat at the head of a table, at which table the defendant 
also sat, there being about six or seven persons between him and the 
plaintiff. The defendant having, in the course of some angry discus- 
sion which took place, been very vociferous, and interrupted the pro- 
ceedings of the meeting, a motion was made that he should be turned 
out, which was carried by a very large majority. Upon this the 
defendant said he would rather pull the chairman out of the chair 
than be turned out of the room, and immediately advanced with his 
fist clenched toward the chairman, but was stopped by the church- 
warden, who sat next but one to the chairman, at a time when he was 
not near enough for any blow he might have meditated to have 

* The report of the same case in 2 Keble, 545, adds: " The defendant pleaded 
the plaintiff began first, and the stroke he received, whereby he lost his eye, was on 
his own assault, and in defense of the defendant." 

* Blake v. Barnard, 9 Car. & P. 626; State v. Crow, 1 Ired. 375; Common- 
wealth V. Eyre, 1 S. & R. 347; Biggins v. Gulf R. Co., 102 Tex. 417 Accord. Com- 
pare Handy v. Johnson, 5 Md. 450. 

Similarly, a mere preparation for a possible assault, but without any act indicat- 
ing a present intention to do personal violence to another, is not an assault. Law- 
son V. State, 30 Ala. 14; Godwin v. Collins, 67 Fla. 197; Penny v. State, 114 Ga. 
77; Gober v. State, 7 Ga. App. 206; Haupt v, Swenson, 125 la. 694; State i'. 
Painter, 67 Mo. 84; State v. Milsaps, 82 N. C. 549. But compare State v. Hamp- 
ton, 63 N. C. 13. 



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SECT. I.] READ V. COKER 3 

reached the chairman, but the witnesses said that it seemed to them 
that he was advancing with an intention to strike the chairman. 

Spankie, Serjt., for the defendant, upon this evidence, contended 
that no assault had been committed, as there was no power in the 
defendant, from the situation of the parties, to execute his threat, — 
there was not a present abiUty, — he had not the means of executing 
his intention at the time he was stopped. 

TiNDAL, C. J., in his summing up, said : It is not every threat, when 
there is no actual personal violence, that constitutes an assault; there 
must, in all cases, be the means of carrying the threat into effect. The 
question I shall leave to you will be, whether the defendant was ad- 
vancing at the time, in a threatening attitude, to strike the chairman, 
so that his blow would almost immediately have reached the chairman 
if he had not been stopped; then, though he was not near enough at 
the time to have struck him, yet, if he was advancing with that intent, 
I think it amoimts to an assault in law. If he was so advancing that, 
within a second or two of time, he would have reached the plaintiff, it 
seems to me it is an assault in law. If you think he was not advancing 
to strike the plaintiff, then only can you find your verdict for the 
defendant; otherwise you must find it for the plaintiff, and give him 
such damages as you think the nature of the case requires. 

Verdict for the plaintiff. Damages, Is} 



READ V. COKER 

In the Common Pleas, June 1, 1853. 

Reported in 13 Common Bench Reports, 850. 

AssAUiyr and false imprisonment.* The first coimt charged an 
assault committed by the defendant on the plaintiff on the 24th of 
March, 1853, by thrusting him out of a certain workshop. 

Plea: Not gidlty " by statute," upon which issue was joined. 

The cause was tried before Talfourd, J., at the first sitting in London 
in Easter term last. The facts which appeared in evidence were as 
follows: The plaintiff was a paper-stainer, carrying on business in the 
City Road, upon premises which he rented of one Molineux, at a rent 

1 Townsdin v. Nutt, 19 Kan. 282; Handy v. Johnson, 5 Md. 450; Fairme*s 
Case, 5 City Hall Rec. 95; Brister v. State, 40 Tex. Cr. 505; Western T. Co. v. 
Bowdoin, (Tex. Civ. App.) 168 S. W. 1 Accord. Jones v. State, 89 Ark. 213 
(semble) Contra. 

Compare Cobbett v. Grey, 4 Ex. 744, per Pollock, C. B.; Burton v. State, 8 Ala. 
App. 295; Wells v. State, 108 Ark. 312; People v. LiUey, 43 Mich. 521; Grimes v. 
State, 99 Miss. 232; Commonwealth v. Roman, 52 Pa. Super. Ct. 64; Trimble v. 
State, 57 Tex. Cr. 439. 

In Mortin v. Shoppee, 3 Car. & P. 373, defendant rode up to plaintiff's gate> 
plaintiff being in his garden about three yards off, and, shaking his whip, said, 
**Come out, and I will lick you before your own servants." Compare People «. 
Yslas. 27 Cal. 630; State v. Shipman, 81 N. C. 513. 

« Only so much of the case is given as relates to the question of assault. 



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4 READ V. COKEB [CHAP. I. 

of 8s. per week. In January, 1852, the rent being sixteen weeks in 
arrear, the landlord employed one HoUiwell to distrain for it. Holli- 
well accordingly seized certain presses, lathes, and other trade fixtures, 
and, at the plaintiff's request, advanced him '£16 upon the security of 
the goods, for the purpose of paying off the rent. The plaintiff, being 
unable to redeem his goods, on the 23d of February appUed to the 
defendant for assistance. The goods were thereupon sold to the de- 
fendant by Holliwell, on the part of Read, for £25 lis. Qd, ; and it was 
agreed between the plaintiff and the defendant that the business 
should be carried on for their mutual benefit, the defendant paying the 
rent of the premises and other outgoings, and allowing the plaintiff a 
certain simi weekly. 

The defendant, becoming dissatisfied with the speculation, dis- 
missed the plaintiff on the 22d of March. On the 24th, the plaintiff 
came to the premises, and, refusing to leave when ordered by the de- 
fendant, the latter collected together some of his workmen, who 
mustered roimd the plaintiff, tucking up their sleeves and aprons, and 
threatened to break his neck if he did not go out ; and, fearing that the 
men would strike him if he did not do so, the plaintiff went out. This 
was the assault complained of in the first count. Upon this evidence 
the learned judge left it to the jury to say whether there was an in- 
tention on the part of the defendant to assault the plaintiff, and 
whether the plaintiff was apprehensive of personal violence if he did 
not retire. The jury found for the plaintiff on this count. Damages, 
one farthing. 

. ByleSj Serjt., on a former day in this term, moved for a rule nisi for 
a new trial, on the groimd of misdirection, and that the verdict was 
not warranted by the evidence. That which was proved as to the 
first coimt clearly did not amount to an assault. [Jervis, C. J. It 
was as much an assault as a sheriff's oflScer being in a room with a 
man against whom he has a writ, and saying to him, " You are my 
prisoner," is an arrest.] To constitute an assault, there must be 
something more than a threat of violence. An assault is thus de- 
fined in BuUer's Nisi Prius, p. 15 : "An assault is an attempt or offer, 
by force or violence, to do a corporal hurt to another, as by pointing 
a pitchfork at him, when standing within reach; presenting a gun at 
him [within shooting distance]; drawing a sword, and waving it in a 
menacing manner, &c. The Queen v. Ingram, 1 Salk. 384. But no 
words can amount to an assault, though perhaps they may in some 
cases serve to explain a doubtful action: 1 Hawk. P. C. 133; as if a 
man were to lay his hand upon his sword, and say, ' If it were not 
assize-time, he would not take such language/ — the words would 
prevent the action from being construed to be an assault, because they 
show he had no intent to do him any corporal hurt at that time: 
Tuberville v. Savage." So, in Selwyn's Nisi Prius (11th ed.), 26, it is 
said: " An assault is an attempt, with force or violence, to do a cor- 



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SECT. I.] READ V. COKER 5 

poral injury to another, as by holding up a fi^t in a menacing manner; 
striking at another with a cane or stick, though the party striking may 
miss his aim; drawing a sword or bayonet; throwing a bottle or glass 
with intent to wound or strike; presenting a gun at a person who is 
within the distance to which the gun will carry; pointing a pitchfork 
at a person who is within reach (Genner v. Sparks) ; or by any other 
similar act, accompanied with such circumstances as denote at the 
time an intention, coupled with a present ability (see Stephens v. 
Myers), of using actual violence against the person of another/' So, 
in 3 Bl. Comm. 120, an assault is said to be " an attempt or offer to 
beat another, without touching him; as if one lifts up his cane or his 
fist in a threatening manner at another, or strikes at him but misses 
him: this is an assault, insuUuSy which Finch (L. 202) describes to be 
* an unlawful setting upon one's person.' " [Jebvis, C. J. If a man 
comes into a room, and lays his cane on the table, and says to another, 
" If you don't go out I will knock you on the head," would not that be 
an assault ?] Clearly not: it is a mere threat, unaccompanied by any 
gesture or action towards canning it into effect. The direction of the 
learned judge as to this point was erroneous. He should have told the 
jury that to constitute an assault there must be an attempt, coupled 
with a present ability, to do personal violence to the party; instead of 
leaving it to them, as he did, to say what the plaintiff thought, and not 
what they (the jury) thought was the defendant's intention. There 
must be some act done denoting a present abiUty and an intention 
to assault. 

A rule nisi having been granted, 

AUen, Serjt., and Chamock now showed cause. The first question 
is, whether the evidence was sufficient, as to the first count, to justify 
the learned judge in putting it to the jury whether or not the defend- 
ant had been guilty of an assault. The evidence was, that the plaintiff 
was surrounded by the defendant and his men, who, with their sleeves 
and aprons tucked up, threatened to break his neck if he did not quit 
the workshop. [Maulb, J. If there can be such a thing as an assault 
without an actual beating, this is an assault.] 

Jervis, C. J. I am of opinion that this rule cannot be made abso- 
lute to its full extent; but that, so far as regards the first coimt of the 
declaration, it must be discharged. If anything short of actual strik- 
ing will in law constitute an assault, the facts here clearly showed 
that the defendant was guilty of an assault. There was a threat of 
violence exhibiting an intention to assault, and a present ability to 
carry the threat into execution. 

Maule, J., Cresswell, J., and Talpourd, J., concurring. 

Rule discharged as to the first count} 

» United States v. Kieman, 3 Cranch, C. C. 436; Plonty v. Murphy, 82 Minn. 
268; People v. Lee, 1 Wheeler, Grim. Gas. 364; State v. Davis, 1 Ired. 125; Alex- 
ander V. Blodgett, 44 Vt. 476; Newell v, Whitcher, 53 Vt. 589; Bishop v, Ranney, 
59 Vt. 316; Barnes v, Martin, 15 Wis. 240; Keep v, QuaUman, 68 Wis. 451 Accord, 



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6 OSBORN V. VEITCH [CHAP. I. 

UNITED STATES v. RICHARDSON 

In the United States Circuit Court, District op Columbia, 

November Term, 1837. 

Reported in 5 Cranch, Circuit Court Reports, 348. 

Indictment for an assault upon one Susan Shelton. 

The evidence was that the defendant came into the house where 
Mrs. Shelton was sitting at a window. He was armed with a musket 
and a club; and raising the club over her head, in an attitude for 
striking, and within striking distance, said to her that if she said a 
word (or if she opened her mouth) he would strike her; and this 
without any provocation on her part. 

Mr, Bradley and Mr. Hcban, for the defendant, contended that 
this was not, in law, an assault; that there can be no assault without 
a present intent to strike; and his sajdng, " if she opened her mouth," 
showed that he had not such a present intent; and they cited the old 
case, " if it were not the assizes, I would stab you." 

But the Court (Thurston, J., absent) said that he had no right 
to restrain her from speaking; and his language showed an intent to 
strike upon her violation of a condition which he had no right to im- 
pose. Suppose a stranger comes to my house armed, and raises his 
club over my head, within striking distance, and threatens to beat me 
unless I will go out of and abandon my house; surely that would be an 
assault. So, if a highwayman puts a pistol to my breast, and threatens 
to shoot me unless I give him my money; this would be evidence of an 
assault, and would be charged as such in the indictment. 

Verdidj guiUy; fined ten doUaraX 



OSBORN V. VEITCH 
At Nisi Prius, coram Willes, J., Kent Summer Assizes, 1858. 

Reported in 1 Foster & Firdaaon, 317. 

Trespass and assault. Pleas: Not guilty, and son assaidt demesne. 
Issue. 

The plaintiffs were owners of a field in which the defendants were 
walking with loaded guns at half-cock in their hands. The plaintiffs 
desired them to withdraw and give their names, and on their refusal 
advanced towards them, apparently as if to apprehend them. The 
defendants half raised their guns, which they pointed towards them, 

1 United States v. Myers, 1 Cranch, C. C. 310; Keefe v. State, 19 Ark. 190; Hix- 
son V, Slocum, 156 Ky. 487; State v. Dooley, 121 Mo. 691; State v. Herron, 12 
Mont. 230; State v, Morgan, 3 Ired. 186; State v. Cherry, 11 Ired. 475; State v. 
Church, 63 N. C. 15; Bishop i;. Ranney, 59 Vt. 316; French v. Ware, 65 Vt. 338 
Accord. 



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SECT. I.] BEACH V. HANCOCK 7 

and threatened to shoot them. The plaintiffs (one of whom was a 
constable) then gave them in charge to a poUceman for shooting with 
intent, and he, with their assistance, seized and handcuffed them. 

E. James submitted that there was no assault; as the guns were 
only at half-cock, there was no " present abiUty " to execute the 
threat. Read v. Coker. 

Sed per Willes, J. Pointing a loaded gun at a person is in law 
an assault. It is immaterial that it is at half-cock; cocking it is an 
instantaneous act, and there is a " present abiUty " of doing the act 
threatened, for it can be done in an instant.^ 

E. James. The assault was in self-defence; the defendants were 
only trespassers, and there was an attempt to apprehend them, and 
excess is not even assigned. Broughton v. Jackson, 18 Q. B. 378. 

Willes, J. It was not necessary that it should be. To shoot a man 
is not a lawful way of repelling an assault. No doubt the charge of 
shooting with intent was idle, and the assault was only a misdemeanor. 
The handcuffing was utterly unlawful. ^ 

Verdict for the plaintiff, Dam^ages, one farthing. 



BEACH V, HANCOCK 

Superior Court of Judicature, New Hampshire, December 

Term, 1853. 
Reported in 27 New Hampshire Reports, 223. 

Trespass, for an assault. 

Upon the general issue it appeared that, the plaintiff and defendant 
being engaged in an angry altercation, the defendant stepped into his 
office, which was at hand, and brought out a gun, which he aimed at 
the plaintiff in an excited and threatening maimer, the plaintiff being 
three or four rods distant. The evidence tended to show that the 
defendant snapped the gim twice at the plaintiff, and that the plaintiff 
did not know whether the gim was loaded or not, and that, in fact, the 
gun was not loaded. 

The court ruled that the pointing of a gun, in an angry and threat- 
ening manner, at a person three or four rods distant, who was igno- 
rant whether the gun was loaded or not, was an assault, though it 
should appear that the gun was not loaded, and that it made no 
difference whether the gun was snapped or not. 

The court, among other things, instructed the jury that, in assess- 
ing the damages, it was their right and duty to consider the effect 
which the finding of hght or trivial damages in actions for breaches 

1 State V. Church, 63 N. C. 15 Accord, 

Firing a revolver in plaintiff's presence but not at him, intending to frighten him 
but not to do him any oodily harm, was held not to be an assault. Degenhardt v. 
Heller, 93 Wis. 662. Compare Nelson v. Crawford, 122 Mich. 466. 



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8 BEACH V. HANCOCK [CHAP. I. 

of the peace would have to encourage a disregard of the laws and 
disturbances of the pubUc peace. 

The defendant excepted to these rulings and instructions. 

The jury having found a verdict for the plaintiff, the defendant 
moved for a new trial by reason of said exceptions. 

Morrison and Fitchy for the defendant. The first question arising 
in this case is, Is it an assault to point an unloaded gim at a person 
in a threatening manner ? An assault is defined to be an inchoate 
violence to the person of another, with the present means of carrying 
the intent into effect. 2 Greenl. Ev. 72. The attempt or offer with 
violence to do corporal hurt to another must be coupled with a present 
ability to constitute an assault. Roscoe's Grim. Ev. 287; 1 Russell 
on Crimes, 750. It is no assault to point an imloaded gun or pistol at 
another, &c. Blake v. Barnard, 9 Car. & P. 626; Regina v. Baker, 1 
Car. & K. 254; Regina v. James, 1 Car. & K. 530. The court erred in 
instructing the jury that the pointing of a gun in an angry and threat- 
ening manner was an assault* It is well settled that the intention to 
do harm is the essence of an assault, and this intent is to be collected 
by the jury from the circumstances of the case. 2 Greenl. Ev. 73.^ 

Gilchrist, C. J. Several cases have been cited by the counsel of 
the defendant to show that the ruling of the court was incorrect. 
Among them is the case of Regina v. Baker, 1 Car. & K. 254. In that 
case, the prisoner was indicted under the statute of 7 Will. IV. and 
1 Vict. c. 85, for attempting to discharge a loaded pistol. Rolfe, B., 
told the jury that they must consider whether the pistol was in such 
a state of loading that, under ordinary circumstances, it would have 
gone off, and that the statute imder which the prisoner was indicted 
would then apply. He says, also, " If presenting a pistol at a person, 
and pulling the trigger of it, be an assault at all, certainly, in the 
case where the pistol was loaded, it must be taken to be an attempt 
to discharge the pistol with intent to do some bodily injury." 

From the manner in which this statement is made, the opinion of 
the court must be inferred to be, that presenting a loaded pistol is an 
assault. There is nothing in the case favorable to the defendant. The 
statute referred to relates to loaded arms. 

The case of Regina v. James, 1 Car. & K. 530, was an indictment 
for attempting to discharge a loaded rifle. It was shown that the 
priming was so damp that it would not go off. Tindal, C. J., said: 
'* I am of opinion that this was not a loaded arm within the statute 
of 1 Vict. c. 85, and that the prisoner can neither be convicted of the 
felony nqr of the assault. It is only an assault to point a loaded pistol 
at any one, and this rifle is proved not to be so loaded as to be able to 
be discharged." The reason why the prisoner could not be convicted 
of the assault is given in the case of Regina v. St. George, 9 Car. & P. 

* The argument for the plaintiff is omitted. 



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SECT. I.] BEACH V. HANCOCK 9 

483, where it was held that on an indictment for a felony, which 
includes an assault, the prisoner ought not to be convicted of an 
assault, which is quite distinct from the felony charged, and on such 
an indictment the prisoner ought only to be convicted of an assault, 
which is involved in the felony itself. In this case, Parke, B., said: 
'' If a person presents a pistol which has the appearance of being 
loaded, and puts the party into fear and alarm, that is what it is the 
object of the law to prevent." So if a person present a pistol purport- 
ing to be a loaded pistol at another, and so near as to have been dan- 
gerous to life if the pistol had gone off; semble, that this is an assault, 
even though the pistol were, in fact, not loaded. Ibid. 

In the case of Blake v. Barnard, 9 Car. & P. 626, which was trespass 
for an assault and false imprisonment, the declaration alleged that 
the pistol was loaded with gunpowder, ball, and shot, and it was held 
that it was incumbent on the plaintiff to make that out. Lord 
Abinger then says, " If the pistol was not loaded, it would be no 
assault," and the prisoner would be entitled to an acquittal, which 
was imdoubtedly correct, under that declaration, for the variance. 
Regina v. Oxford, 9 Car. & P. 525. 

One of the most important objects to be attained by the enactment 
of laws and the institutions of civilized society is, each of us shall feel 
secure against unlawful assaults. Without such security society loses 
most of its value. Peace and order and domestic happiness, inexpres- 
sibly more precious than mere forms of government, cannot be en- 
joyed without the sense of perfect security. We have a right to Uve 
in society without being put in fear of personal harm. But it must be 
a reasonable fear of which we complain. And it surely is not unreason- 
able for a person to entertain a fear of personal injury, when a pistol 
is pointed at him in a threatening manner, when, for aught he knows, 
it may be loaded, and may occasion his immediate death. The busi- 
ness of the world could not be carried on with comfort, if such things 
could be done with impimity. 

We think the defendant guilty of an assault, and we perceive no 
reason for taking any exception to the remarks of the court. Finding 
trivial damages for breaches of the peace — damages incommensurate 
with the injury sustained — would certainly lead the ill-disposed to 
consider an assault as a thing that might be committed with im- 
punity. But at an events, it was proper for the jury to consider 
whether such a result would or would not be produced. Flanders v. 
Colby, 28 N. H. 34. Judgment on the verdict} 

* In Chapman v. State, 78 Ala. 463; State v. Yturaspe, 22 Idaho, 360; State v. 
Sears, 86 Alo. 169; State v. Godfrey^ 17 Or. 300; McKay v. State. 44 Tex. 43, 
it was decided that a defendant who auned an unloaded pistol at another, although 
perhaps liable for a civil assault, was not guilty of a criminal assault. See also 
2 Green, Cr. Cas. 271 n.; Territory v. Gomez, 14 Ariz. 139; People v. Sylva, 143 
Cal. 62. Such conduct was held to be a criminal assault in State v. Shepard, 10 
la. 126; Commonwealth i;. White, 110 Mass. 407; State v. Barry, 46 Mont. 598; 



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10 STEARNS V. SAMPSON [CHAP. I. 

STEARNS AND Wife v. SAMPSON 

Supreme Judicial Court, Maine, 1871. 

Reported in 59 Maine RepartSy 568. 

On exceptions, and motion to set aside the verdict as being against 
law. 

Trespass. The writ contained three counts: one for breaking and 
entering the plaintiffs' close and carrying away the household furni- 
ture; the second, for taking and carrying away the household furni- 
ture of the wife; and the third,* for assault on the wife. 

There was evidence tending to show that after entry and notice to 
leave, and refusal by the wife and her mother, with an expressed 
determination on their part to hold possession against the defendant, 
the latter called in assistants and ordered them to remove the furni- 
ture, and they did remove it from some of the rooms; that upon going 
to one of the rooms, the door was fastened, and the assistants opened 
it; that the furniture, except bed, was removed from Mrs. Steams' 
sleeping-room. 

That the assistants remained there several days and nights. 

That the defendant caused the windows to be removed; prevented 
food from being carried to the house; that a tenant was let into the 
L of the house, and had charge of the defendant's bloodhound, five 
months old, and permitted him to go into the house; that the furni- 
ture was removed into a house near by, and Mrs. Steams notified of its 
whereabouts; that the doors fastened by Mrs. Steams were removed; 
that Mrs. Steams finally left by compulsion with an oflScer, and was 
sick several weeks. 

The rulings suflSciently app)ear in the opinion. 

The jury returned a verdict for the plaintiffs, and the defendant 
alleged exceptions, and also filed motions to set aside the verdict as 
being against law and the weight of evidence. 

Appleton, C. J. There is in the declaration a count for an assault 
and battery upon the female plaintiff. In reference to this branch 
of the case, the following instructions were given: *'Was there a 
trespass committed upon the female plaintiff ? She is the only one 
who seeks for damages. Whatever may have been the injury inflicted 
upon the other inmates of that house, she can recover on this suit only 
for that which was inflicted upon her. In order to constitute an 
assault, it is not necessary that the person should be touched, but 

Clark V. State. (Okl. Cr.) 106 Pac. 803; State v. Smith, 2 Humph. 457; Richels v. 
State, 1 Sneed, 606 (semble); Morison's Case^ 1 Brown, Just. R. (Scotch) 394. In 
Commonwealth v. White, supraf Wells. J., said : " It is not the secret intent of the 
assaulting party, nor the undisclosed lact of his ability or inability to commit a 
battery, that is material, but what his conduct and the attending circumstances 
demote at the time to the party assaulted.'* Cf. Howell v. Winters, 58 Wash. 436. 
^ Only so much of the case is printed as relates to this count. 



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SECT. I.] STEARNS V. SAMPSON 11 

there should be certain indignities. In the language of one of the 
decisions, if the plaintiff was embarrassed and distressed by the acts 
of the defendant, it would amount in law to an assault." The acts 
and indignities which from the charge might constitute an assault 
were the bursting open a door, which the defendants had no right to 
fasten, and the inconveniences resulting from taking off the doors and 
taking out the windows, which made it uncomfortable for the female 
plaintiff to remain, where remaining, she was a trespasser. So the 
bringing a bloodhound by the defendant into his house, which is 
proved to have barked, but not to have bitten, and the making a noise 
therein, with other similar acts, it was contended, would amount to an 
assault and trespass, and of that the jury were to judge. Now, such 
• is not the law. An assault and battery is clearly defined by R. S., c. 
118, § 28, thus: " Whoever unlawfully attempts to strike, hit, touch, 
or do any violence to another, however small, in a wanton, wilful, 
angry, or insulting manner, having an intention and existing abiUty 
to do some violence to such person, shall be deemed guilty of an 
assault; and if such atte npt is carried into effect, he shall be deemed 
guilty of an assault and battery." Now, the removal of a door or 
windows, of the owner ifi possession, would constitute no assault. 
Indeed, as has been seen, 6 Allen, 76, the owner would, in attempting 
it, have the right to use as much force as was necessary to overcome 
the resistance of the unlawfully resisting and trespassing tenant. Acts 
which may embarrass and distress do not necessarily amoimt to an 
assault. Lxdignities may not constitute an assault. Acts aggravating 
an assault differ materially from the assault thereby aggravated. 
Insulting language or conduct may aggravate an assault, but it not an 
assault.^ So the acts of the defendant in taking out the windows of 

1 State V, Daniel, 136 N. C. 671; Degenhardt v. Heller, 93 Wis. 662 Accord, 
Wood V. Young, 20 Ky. L. Rep. 1931 Contra. It is not an assault to make the 
kissing sign to another. Fuller v. State, 44 Tex. Cr. 463. 

Mere words, looks, or gestures, however violent or insulting, do not amount to 
an assault. State v, Borrelli, 24 Del. 349; Reimenschneider v. Neusis, 175 111. 
App. 172; Harvey v. Harvey, 124 La. 595; Bouillon v. La Clede Gas Light Ck>., 
148 Mo, App. 462; State v, Daniel, 136 N. C. 571; Lewis v. Fountain, 168 N. C. 
277. A forticri violent language over the telephone is no assault. Kramer v. 
Ricksmeier, 159 la. 48. 

No action lies for the shame and insult to a woman from inviting her to illicit 
intercourse. Davis v. Richardson, 76 Ark. 348; Reed v. Maley, 115 Ky. 816 j State 
V. White, 52 Mo. App. 285. A liter where accompanied by acts that put her m fear. 
Johnson v. Hohn, 168 la. 147; Jeppsen v. Jensen, 47 Utah, 536; Newell v. Whitcher, 
53 Vt. 589. And a common carrier is liable, as a public service company, for insults 
to a passenger by its employees. Knoxville Co. v. Lane, 103 Tenn. 376. 

" Injtuy is conunitted not only when a man is struck with the fot or beaten 
with a stick or lashed, but also when abusive language is publicly addressed to any 
one, or when . . . some one . . . has followed about a married woman or a 
young boy or gjrl, or when some person's modesty may be said to have been 
assailed.'* Institutes of Justinian, iv, 4, 1. 

'' Likewise it is an iniury of this kind when one person, without actually striking 
another, keeps raising his hand menacingly and creates in the other the fear that 
be win be struck. . . . Likewise if he mocks another with indecent or indecorous 
gestures; or if by means of gesticulations he indicates things of such a kind that 



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12 COLE V. TURNER [CHAP. I. 

his own house, in a bleak and cold day, might distress one unlawfully 
occupying and illegally refusing to quit his premises, but they could in 
no sense be regarded as an assault upon her. One may be embarrassed 
and distressed by acts done *' in a wanton, wilful, angry, or insulting 
manner," where there is no " intention nor existing ability to do some 
violence " to the person, and yet there be no assault. The instruc- 
tion on this point is equally at variance with the conmion law and 
the statute of the State.^ 



COLE V. TURNER 

At Nisi Prius, coram Holt, C. J., Easter Term, 1704. 

Reported in 6 Modem ReportSf 149. 

Holt, C. J., upon evidence in trespass for assault and battery 
declared, — 

First, That the least touching of another in anger * is a battery. 

Secondly, If two or more meet in a narrow passage, and, without 
any violence or design of harm, the one touches the other gently, it 
will be no battery.' 

Thirdly, If any of them use violence against the other, to force his 
way in a rude, inordinate manner, it will be a battery; or any strug- 
gle about the passage to that degree as may do hurt will be a battery. 

if they were expressed in spoken words or in writing they would convey an injury." 
Voet, Commentary on the Pandects, xlvii, 10, 1 7. 

** Ignominious treatment is an injury only when it is an infringement of one of 
the absolute rights of personality: a right that is recognized by the law of the 
State as includ^ amongst the natural rights of every freeman. Such an infringe- 
ment of another's right may be regarded as offensive to good morals (contra brnoa 
mores); hence the definition of iniuria as * an insult offered to any person against 
good morals ' (contumelia contra bonos mores alicui iUata)." De Villiers, Roman 
and Roman-Dutch Law of Injuries, 22. 

* Meader v. Stone, 7 Met. (Mass.) 147 Accord. 

See Rex v. Smith, 2 Car. & P. 449; Preiser v. Wielandt, 48 App. Div. 569. 

* Hostile touching or in anger. Singer Co. v, Methvin, 184 Ala. 554; McGlone 
V. Hanger, 56 Ind. App. 243; Booher v. Trainer, 172 Mo. App. 376; Hough v. 
Iderhoff, 69 Or. 568; Raefeldt v. Koenig, 152 Wis. 459 Accord. 

Touchingcon/ra bonos mores but with no hostile intent. Richmond v. Fisk, 160 
Mass. 34. Taking liberties with a woman. Hatchett v. Blacketer, 162 Ky. 266; 
Timmons v. Kenrick, 53 Ind. App. 490. Unauthorized surgical operation. Pratt 
V. Davis, 224 111. 300; Mohr v. Williams, 95 Minn. 261; Schloendorfif v. Society, 
211 N. Y. 125; Rolater v. Strain, 39 Okl. 572. But see Bennan v. Parsonnet, 83 
N. J. Law, 20. Aliter where authorized by a minor. Bakker v. Welsh, 144 Mich. 
632. 

« Keriflford's Case, Clayt. 22 pi. 38 Accord. See, also, Steinman v. Baltimore 
Laundry Co., 109 Md. 62; Courtney v. Kneib, 131 Mo. App. 204. 



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SECT. I.] COWARD V. BADDELEY 13 

INNES V. WYLIE 

At Nisi Prius, coram Lord Denman, C. J., February 22, 1844. 
Reported in 1 Carrington dk Kirvxm, 267. 

Assault. Plea: ^ Not guilty. 

It further appeared that the plaintiff, on the 30th of November, 
1843, went to a dinner of the society at Radley's Hotel, and was 
prevented by a poUceman named Douglas from entering the room; 
and it was proved by the poUceman that he acted by order o£ the 
defendants. 

With respect to the alleged assault, the policeman said, "The 
plaintiff tried to push by me into the room, and I prevented him; " 
but some of the other witnesses stated that the plaintiff tried to enter 
the room, and was pushed back. 

Erie addressed the jury for the defendant. There is no assault 
here. The poUceman, who must best know what was done, says that 
the plaintiff tried to push into the room, and he prevented him; and 
preventing a person from pushing into a room is no assault, the 
assault, if any, being rather on the other side. 

Lord Denman, C. J. (in summing up). You will say, whether, on 
the evidence, you think that the poUceman committed an assault on 
the plaintiff, or was merely passive. If the poUceman was entirely 
passive, Uke a door or a waU put to prevent the plaintiff from enter- 
ing the room, and simply obstructing the entrance of the plaintiff, no 
assault has been committed on the plaintiff, and your verdict wiU be 
for the defendant. The question is, Did the poUceman take any 
active measures to prevent the plaintiff from entering the room, or 
did he stand in the door-way passive, and not move at aU ? 

Verdict for the plaintiff. Damages, 40s. 



COWARD V. BADDELEY 
In the Exchequer, April 19, 1859. 

Reporttd in 4 HurlsUme 6r Norman, 478. 

Declaration: That the defendant assaulted and beat the plaiiitiff, 
gave him in custody to a poUceman, and caused him to be imprisoned 
in a poUcenstation for twenty-four hours, and afterwards to be taken 
in custody along pubUc streets before metropoUtan poUce magistrates. 

Pleas: First, Not guilty; third. That the plaintiff, within the Met- 
ropoUtan PoUce District, assaulted the defendant, and therefore the 
defendant gave the plaintiff into custody to a poUce oflScer, who had 
view of the assault, in order that he might be taken before magistrates 
and dealt with according to law, &c. 

^ The statement of the case has been abridged. 



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14 COWAKD V. BADDELEY [CHAP. !• 

Whereupon issue was joined. 

At the trial before Bramwell, B., at the London sittings in last 
Hilary term, the plaintiff proved that, on the night of the 31st of 
October, he was passing through High Street, Islington, and stopped 
to look at a house which was on fire. The defendant was directing a 
stream of water from the hose of an engine on the fire. The plaintiff 
said, " Don't you see you are spreading the flames ? Why don't you 
pimip on the next house ? " He went away, and then came back and 
repeated these words several times, but did not touch the defendant. 
The defendant charged the plaintiff with assaulting him, and gave 
him into the custody of a policeman who was standing near. 

The defendant swore that, on being interrupted by the plaintiff, 
he told him to get out of the way and mind his own business; that tho 
plaintiff came up to him again, seized him by the shoulder, violently 
turned him round, exposed him to danger, and turned the water off 
the fire. 

The learned judge told the jury that the question was whether an 
assault and battery had been committed; and he asked them, first, 
whether the plaintiff laid hands on the defendant; and, secondly, 
whether he did so hostilely. The jmy found that the plaintiff did lay 
hands on the defendant, intending to attract his attention. Where- 
upon the learned judge ordered the verdict to be entered for the 
plaintiff, reserving leave to the defendant to move to enter a verdict 
for him if the court should be of opinion that he had wrongly directed 
the jury in telling them that, to find the issue on the third plea for 
the defendant, they must find that the plaintiff laid his hands upon 
him with a hostile intention. 

Shee, Serjt., in the same term, having obtained a rule nisi accord- 
ingly, 

Beasley now showed cause. The question is, whether the intention 
of the plaintiff is material to be considered in order to determine 
whether there was an assault and battery. In Rawlings v. Till, 3 
M. & W. 28, Parke, B., referring to Wiffin v. Kincard, 2 B. & P. N. R. 
471, where it was held that a touch given by a constable's staff does 
not constitute a battery, pointed out, as the ground of that decision, 
that there the touch was merely to engage the plaintiff's attention. 
[Martin, B. Suppose two persons were walking near each other, 
and one turned round, and in so doing struck the other: surely that 
would not be a battery. Pollock, C. B. There may be a distinction 
for civil and criminal purposes. Channell, B. It was necessary to 
prove an indictable assault and battery in order to sustain the plea.] 
The maxim, Adics nonfadt reum nisi mens sit rea appUes. He referred 
also to Pursell v. Horn, 8 A. & E. 602; Archbold's Criminal Law, 
p. 524 (12th ed.); Scott v. Shepherd, 2 W. Bl. 892. 

Petersdorff, Serjt., and Francis, in support of the rule. The learned 
judge's direction was defective in introducing the word " hostile." 



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SECT. I.] DE MARENTILLE t;. OLIVEB 15 

In order to constitute an assault, it is enou^ if the act be done against 
the will of the party. There are several cases where it has been held 
that an assault has been committed where there was no intention to 
do the act complained of in a hostile way, as in the case of a prize- 
fight. Rex V. Perkins, 4 Car. & P. 537. So a surgeon assisting a 
female patient to remove a portion of her dress. Rex v. Rosinski 
1 Moody C. C. 19. Here the plaintiff interfered with the defendant 
in the execution of his duty. In Hawkins' Pleas of the Crown, vol. i. 
p. 263, it is said, " Any injury whatever, be it never so small, being 
actually done to the person of a man in an angry, or revengeful, or 
rude, or insolent manner, as by spitting in his face, or any way touch- 
ing him in anger, or violently jostling him out of the way, are batteries 
in the eye of the law." [Bramwell, B. I think that the jostling 
spoken of must mean a voluntary jostling.] 

Pollock, C. B. I am of opinion that the rule must be discharged. 
The jury found that what the plaintiff did was done with the intent 
to attract the attention of the defendant, not with violence to justify 
giving the plaintiff into custody for an assault. The defendant 
treated it as a criminal act, and gave the plaintiff into custody. We 
are called on to set aside a verdict for the plaintiff, on the ground that 
he touched the defendant.^ There is no foundation for the appUcation. 

Mabtin, B. I am of the same opinion. The assault and battery 
which the defendant was bound to establish means such an assault as 
would justify the putting in force the criminal law for the purpose of 
bringing the plaintiff to justice. It is necessary to show some act 
which justified the interference of the poHce officer. Touching a 
person so as merely to call his attention, whether the subject of a civil 
action or not, is not the ground of criminal proceeding. It is clear 
that it is no battery within the definition given by Hawkins. 

CHAimELL, B. I am of the same opinion. Looking at the plea, it 
is obvious that it was not proved. 

Bramwell, B., concurred Rvle discharged. 



DE MARENTILLE v. OLIVER 

Supreme Court, New Jersey, February Term, 1808. 

Reported in 1 Pennington^ 379. 

This was action of trespass, brought by the defendant in this court, 
against the plaintiff in certiorari. The state of demand charged the 
defendant below, that he unlawfully, forcibly, and with great vio- 
lence, with a large stick, struck the horse of the plaintiff, on the pub- 
lic highway, which said horse was then before a carriage, in which the- 
plaintiff was riding, on the said pubUc highway, to the damage of the 

* Courtney v, Kneib, 131 Mo. App. 204 Accord, Compare Reynolds v. Piereon, 
29 Ind. App. 273. 



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16 OBERLIN V. UPSON [CHAP. L 

plaintiff fifty dollars. This cause was tried by a jury, and verdict and 
judgment for the plaintiff, $15 damages. It was assigned for error 
that the suit was brought before the justice to recover damages for an 
assault and battery, when, by law, such an action cannot be supported 
before a justice of the peace. 

Pennington, J.^ To attack and strike with a club, with violence, 
the horse before a carriage, in which a person is riding, strikes me as 
an assault on the person; ^ and if so, the justice had no jurisdiction of 
the action. 

But if this is to be considered as a trespass on the property, uncon- 
nected with an assault on the person, I think that it was incumbent 
on the plaintiff below to state an injury done to the horse, whereby 
the plaintiff suffered damage; that he was in consequence of the blow 
bruised or woimded, and unable to perform service; or that the plain- 
tiff had been put to expense in curing of him, or the like. All the prec- 
edents of declarations for injuries done to domestic animals, as far as 
my recollection goes, are in that way; and I think, with good reason. 
Suppose a man, seeing a stranger's horse in the street, was to strike 
him with a whip, or a large stick, if you please, and no injury was to 
ensue, could the owner of the horse maintain an action for this act ? 
I apprehend not. For these reasons, I incline to think, that this 
judgment ought to be reversed. 

KiRKPATRicK, C. J. Concurred in the reversal. 

Judgment reversed. 

OBERLIN V. UPSON 
Supreme Court, Ohio, January Term, 1911. 
Reported in 84 Ohio State Reports, 111. 

Davis, J.* Under the common law of England as it has been recog- 
nized and administered in this country, a woman cannot maintain 
against her seducer an action for damages arising from her own 
seduction. This is frankly admitted by the counsel for the plaintiff in 
error; but they ask a reversal of the judgment below upon the ground 
that the plaintiff was induced to consent to the soUcitations of the 
defendant by a betrayal of the love and confidence which had been 

^ A part of the case, relating to a point of practice, is omitted. 

« Dodwell V. Burford, 1 Mod. 24; Hopper v. Reeve, 7 Taunt. 698; Spear t». 
Chapman, 8 Ir. L. R. 461; Reynolds v. Piereon, 29 Ind. App. 273; Burdick v, 
Worrall, 4 Barb. 596 (semble): Bull v. Colton, 22 Barb. 94; Clark v. Downing, 
55 Vt. 269 Accord. But see Kirland v. State, 43 Ind. 146. 

An injury to the clothes on one's back is a trespass on the person^ Regina v. 
Day, 1 Cox, C. C. 207. So is the removal of an ulster from the plaintiff, Geraty v. 
Stem, 30 Hun, 426; or seizing anything in the plaintiff's hand, Scott v. State, 118 
Ala. 115; Dyk v. De Young, 35 111. App. 138; Steinman v. Baltmiore Laundry Co., 
109 Md. 62 Isemble); Respublica v. De Longchamps, 1 Dall. Ill; or cutting a rope 
connecting the plaintiff with his slave, State v. Davis, 1 Hill (S. C.) 46. 

* The statement of the pleadings and the arguments of counsel are omitted. 



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SECT. I.] OBERLIN t;. UPSON 17 

engendered in her by a period of courtship and by a promise of mar- 
riage made by him. Confessedly this is not an action ex contractu 
upon a promise of marriage, in which the seduction might be pleaded 
and proved as an aggravation of damages; ^ but it is clearly an at- 
tempt to recover ex delicto. There is no averment of mutual promises 
or of an agreement to marry; and an analysis of the amended petition 
discloses no more than that the defendant's promise was one of the 
blandishments by which he accomplished his purpose. The case, 
therefore, presents no exception to the common law rule; for there is 
no claim of fraud, violence or artifice other than mere soUcitation. 

The theory of the common law is that, since adultery and fornica- 
tion are crimes,* the woman is particeps criminis and hence that she 
cannot be heard to complain of a wrong which she helped to produce. 
It may be conceded that some of the arguments adduced here might 
be fairly persuasive if addressed to the legislatxire. Indeed in several 
of the states statutes have been enacted authorizing such an action; 
but a careful study of the decisions in those states, limiting and con- 
struing those statutes, raises a doubt whether the legislation is a real 
advance upon the common law. 8 Ann. Cas. 1115, note. There is, 
however, no such statute in this state and the common law rule 
applies. 

The judgment of the circuit court is Affirmed* 

Spear, C. J., Shauck, Price, and Johnson, JJ., concur. 

Donahue, J., not participating. 

» Berry v. Da Coeta, L. R. 1 C. P. 331; Collins v. Mack, 31 Ark. 684; Hattin p. 
Chapman, 46 Conn. 607; Graves t;. Rivers, 123 Ga. 224; Tubbs v. Van Kleek, 12 
lU. 446; Tyler v. Salley, 82 Me. 128; Sauer v. Schulenberg, 33 Md. 288; Sherman 
V. Rawson, 102 Mass. 395; Kelley v. Riley, 106 Mass. 339; Bennett v. Beam, 42 
Mich. 346; Schmidt v. Dumham, 46 Minn. 227; Green v. Spencer, 3 Mo. 318; 
Mussehnan t;. Barker, 26 Neb. 737; Cofl v. Wallace, 24 N. J. Law, 291; Kniffen v. 
McConnell, 30 N. Y. 285; Spellings v. Parks. 104 Tenn. 351; Daggett v, Wallace, 
75 Tex. 352; Giese t;. Schultz. 69 Wis. 621 Accord. 

Weaver v. Bachert, 2 Pa. St. 80; Wrynn v. Downey, 27 R. I. 454 Contra. 

' But see 4 Blackstone, Conmientaries, 65; 1 Bishop, New Criminal Law. { 38. 

» Beseler v. Stephani, 71 111. 400; Woodward v. Anderson, 9 Bush, 624; Paul v. 
Frazier, 3 Mass. 71; Welsund v. Schueller, 98 Minn. 475; Robinson v. Musser, 78 
Mo. 153; Hamilton v. Lomax, 26 Barb. 615; Weaver v. Bachert, 2 Pa. St. 80; 
Conn V. Wilson, 2 Overt. 233 Accord. See Desborough v. Homes, 1 F. & F. 6. 

An action is allowed by statute in some jurisdictions. Marshall v. Taylor, 98 
Cal. 55; Swett v. Grav, 141 Cal. 83: Mcllvain v. Emery, 88 Ind. 298; Verwers v. 
Carpenter, 166 la. 273; Watson t;. Watson, 49 Mich. 540; Hood v. Sudderth, 111 
N. C. 215; Breon v. Henkle. 14 Or. 494. The Scotch law is to the same effect. 
Smith, Law of Damages in Scotland, 128. Under these statutes it has been held 
that there must be a real seduction : ** Consent must be prociued by some trick or 
artifice other than mere solicitation.'' Brown v. Kingsley, 38 la. 220. Compare 
Breon v. Henkle, 14 Or. 494. 

Even without a statute a guardian is liable in damages for the seduction of his 
ward. Graham v. Wallace, 50 App. Div. 101. See cOso Smith v. Richards, 29 
Conn. 232. 



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18 BELL V. HANSLEY [CHAP. I. 

BELL V. HANSLEY 
Supreme Court, North Carolina, December Term, 1855. 

Reported in 3 JoneSf 13L 

This was an action of trespass, assault, and battery, tried before 
Ellis, Judge, at the fall term, 1855, of New Hanover Superior Court. 

The plaintiff proved the assault and battery; and there was evi- 
dence tending to show a mutual affray and fighting by consent. 

But his Honor was of opinion, and so advised the jury, that not- 
withstanding the fact that the parties had mutually assented to an 
affray, the plaintiff was, nevertheless, entitled to recover; but that 
the. fact relied on as a defence was proper to be considered by the 
jury in mitigation of damages. The defendant excepted to these 
instructions. Verdict for the plaintiff . Judgment and appeal, 

Nash, C. J. This case presents the question whether, when two 
men fight together, thereby committing an affray, either is guilty of 
an assault and battery upon the other. Justice Buller, in his Nisi 
Prius, at page 16, says, each does commit an assault and battery upon 
the other, and that each can maintain an action for it. He refers to a 
case at Abingdon, Boulter v. Clark, when Serjeant Hajrward appeared 
for the defendant, and offered to prove that the parties fought by con- 
sent and insisted that this, imder the maxim volenti non fit injuria, 
appUed. Parker, Chief Baron, denied it, and said, " the fighting being 
unlawful, the consent of the plaintiff to fight would be no bar to his 
action, and that he was entitled to a verdict." Mr. Stephens, in his 
Nisi Prius, 211, la3rs down the same doctrine: " If two men engage in 
a boxing match, an action can be sustained by either of them against 
the other, if an assault be made ; because the act of boxing is imlawf ul, 
and the consent of the parties to fight cannot excuse the injury." 

Per Curiam, Judgment affirmed,^ 

1 Boulter v. Clarke, Bull. N. P. 16; Reg. v. Coney. 8 Q. B. D. 534. 538, 546, 549, 
667; Logan v, Austin, 1 Stewart (Ala.) 476; Cadwell v, Farrell. 28 lU. 438; Adams 
V. Waggoner, 33 Ind. 531; Lund v, Tyler, 115 la. 236; McNeil v. Mullin, 70 Kan. 
634; Galbraith v. Fleming, 60 Mich. 403: Grotton v. Glidden, 84 Me. 589; Com- 
monwealth V. Colburg, 119 Mass. 350 (semble); Lizana t;. Lang. 90 Miss. 469; 
Jones V. Gale, 22 Mo. App. 637; Morris v. Miller, 83 Neb. 218; Stout v. Wren, 1 
Hawks (N. C), 420; Barholt v. Wright, 45 Ohio St. 177 (explaining Champer v. 
State, 14 Ohio St. 437) ; McCue v, Klem, 60 Tex. 168 (aemble) ; WiUey v. Carpenter, 
64 Vt. 212; Shay v. Thompson, 69 Wis. 540; Miller v. Bayer, 94 Wis. 124 (procur- 
ing an abortion with plaintiff's consent) Accord. 

Reg. V. Coney, 15 Cox, C. C. 46 (semble)j per Hawkins J.; Hegarty v. Shine, 
L. R. 4 Ir. 288, 294 (semble); Goldnamer v, O'Brien, 98 Ky. 569 (procuring an 
abortion with plaintiff's consent): Lykins v. Hamrick, 144 Ky. 80, Contra, If the 
plaintiff is injured by the defendant, both being engaged in an illegal charivari 
party, he cannot recover damages from the defendant. Gilmore v. Fuller, 198 111. 
130. 

As to injury in the course of a " friendly scuffle," see Gibeline v. Smith, 106 Mo. 
App. 545. 



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SECT. II.] GENNER V. SPARKE8 19 

Section II 
Imprisonment 

Note by Thorpe, C. J., 1348. . 
Reported in Year Book, Liber Assisarunif folio 104, placUum 85. 

There is said to be an imprisonment in any case where one is 
arrested by force and against his will, although it "be on the high street 
or elsewhere, and not in a house, &c.^ 

GENNER t;. SPARKES 
In the King's Bench, Trinity Term, 1704. 

Reported in 1 Salkeldy 79. 

Genner, a bailiff, having a warrant against Sparkes, went to him 
in his yard, and, being at some distance, told him he had a warrant, 
and said he arrested him. Sparkes, having a fork in his hand, keeps 
off the bailiff from touching him, and retreats into his house. And 
this was moved as a contempt. Et per Curiam, The bailiff cannot 
have an attachment, for here was no arrest nor rescous. Bare words 
will not make an arrest; but if the bailiff had touched him, that had 
been an arrest,* and the retreat a rescous, and the bailiff might have 
pursued and broke open the house, or might have had an attachment 
or a rescous against him ; but as this case is, the bailiff has no remedy, 
but an action for the assault; for the holding up of the fork at him 
when he was within reach, is good evidence of that.^ 

1 McNay v. Stratton, 9 111. App. 215; Price v. Bailey, 66 111. 48; Hildebrand v. 
McCnim, 101 Ind. 61; Smith v. State, 7 Humph. 43; Sorenson v. Dundas, 50 Wis. 
3S5 Accord, 

Compare Marshall t;. Heller, 55 Wis. 392. For recent deffiiitions see Westberrj' 
V. Clanton, 136 Ga. 795; Coolahan v. Marshall Field & Co., 159 111. App. 466; 
Efiwmson v. Smith, 29 Ind. App. 451 : Comer v. Knowles, 17 Kan. 436; New York 
R. Co. V. Waldron, 116 Md. 441; Smith v, Clark, 37 Utah, 116, 126. 

« Anon. 1 Vent. 306; Anon. 7 Mod. 8; Whithead v. Keyes, 3 All. 495 Accord. 

* If the bailiff, who has a process against one, says to him when he is on horse- 
back or in a coach. " You are my prisoner; I have a writ against you," upon which 
he submits, turns back, or goes with him, though the bailiff never touched him, yet 
it is an arrest, because he submitted to the process; but if, instead of going with 
the bailiff, he had gone or fled from him, it could be no arrest, unless the bailm laid 
hold of him. Homer v, Battyn, Bull. N. P. 62. 



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20 WOOD V. LANE [CHAP. I. 

WOOD V. LANE 

At Nisi Prius, coram Tindal, C. J., December 13, 1834. 

Reported in 6 CarringUm <fe Paynes 774. 

Trespass and false imprisonment. Pleas: Not guilty; and leave 
and license. 

It was proved by a member of the plaintiff's family that he was a 
flannel draper in CaAle Street, Holbom, and that on the 3d of April 
he came home accompanied by the defendants, Cleaton and Lane; 
and that the plaintiff said Cleaton had arrested him at Mr. Sanders's, 
in Holbom; that the plaintiff's wife asked the defendant Lane, who 
was, in fact, clerk to Cleaton's attorney, if he had any authority, and 
he said he had; and being asked his name, said, '^ My name is Selby 
of Chancery Lane." Lane made several inquiries about the plaintiff's 
property, and said he would give him time till eight o'clock in the 
evening; upon which the other defendant, Cleaton, said, " How can 
you do that ? I will not allow you to give him any time at all." It 
was proved that, in fact, Mr. Selby had no bailable process against the 
plaintiff. A witness was also called, who proved that, in conversation 
with the defendant Lane on the subject, he said it was a foolish piece 
of business; that Mr. Cleaton had caused him to do it; that he was 
very sorry for it, but he thought Mr. Cleaton would indemnify him. 
There was some uncertainty in the evidence of the conversation 
whether the defendant Lane admitted or not that he had taken the 
plaintiff by the arm. 

According to the evidence of Mr. Sanders, at whose house the trans- 
action commenced, the plaintiff was bargaining with him for the sale 
of some goods, and had just made out the invoice, which was lying 
before him, when the defendant Cleaton came in alone, and asked the 
plaintiff several times to pay the amoimt he owed him, or some money 
on accoimt. The plaintiff said he would not; upon which Cleaton 
went just outside the door, and returned immediately, followed by 
the defendant Lane, and pointing to the plaintiff, said, " This is the 
gentleman." The plaintiff tore up the invoice he had written, and 
threw it on the fire, and said, " I suppose I am to go with you." The 
answer given was, *' Yes." The plabitiff and the two defendants went 
away together. 

Talfourdy Serjt., for the defendant. No arrest has been proved. 
Sanders, who was present, says nothing of the lajdng hold of the 
plaintiff. 

Tindal, C. J. The question is, whether the plaintiff went volun- 
tarily from Mr. Sanders's to his own house, or whether he went in 
consequence of the acts of the defendants. If you put your hand upon 
a man, or tell him he must go with you, and he goes, supposing you to 



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SECT. II.] PIKE V. HANSON 21 

have the power to enforce him, is not that an arrest ? May you not 
arrest without touching a man ? 

White referred to the case of Arrowsmith v. Le Mesurier, 2 B. & 
P. N. R. 211. 

TiNDAL, C. J. That is a case which has often been spoken of as 
going to the very extreme point; but in that case the jury foimd that 
the plaintiff went volimtarily with the officer. And in this case, if you 
can persuade the jury that the plaintiff went volimtarily, you may 
succeed. 

Talfourd^ Serjt., then addressed the jury for the defendants. There 
was no real compulsion. No writ was produced. It was only an 
endeavor by a manoeuvre to make the plaintiff do what he ought, but 
would not, viz., pay the money which he owed. 

TiNDAL, C. J., in summing up, told the jury, that, if the plaintiff 
was acting as an imwilling agent, at the time and against his own will 
when he went to his own house from that of Sanders, it was just as 
much an arrest as if the defendants had forced him along. 

The jury found for the plaintiff. Damages, £10.^ 



PIKE V. HANSON 

SuPEBiOR Court of Judicature, New Hampshire, December 

Term, 1838. 
Reported in 9 New Hampshire Reports, 491. 

Trespass, for an assault and false imprisonment on the 1st day of 
July, A.D. 1837. The action was commenced before a justice of the 
peace. The defendants pleaded severally the general issue. It ap- 
peared in evidence that the defendants were selectmen of the town of 
Madbury for the year 1836; that they assessed a list of taxes upon the 
inhabitants of said town, among whom was the plaintiff, and com- 
mitted it to Nathan Brown, collector of said town, for collection. 
Brown, after having given due notice to the plaintiff, being in a room 
with her, called upon her to pay the tax, which she declined doing until 
arrested. He then told her that he arrested her, but did not lay his 
hand upon her; and thereupon she paid the tax. 

Upon this evidence the defendants objected that the action could 
not be maintained, because there was no assault. 

It did not appear that the defendants had been sworn, as directed 
by the statute of January 4, 1833. A verdict was taken for the 
plaintiff, subject to the opinion of the court. 

' Chinn v. Morris, 2 Car. & P. 361: Pocock v. Moore, Ry. k M. 321; Peters v, 
Stanway, 6 Car. & P. 737; Granger v. Hill, 4 Bing. N.C. 212; Warner v, Riddiford, 4 
C. B. N. S. 180 (criticizing Arrowsmith v. Le Mesurier, 2 B. & P. N. R. 211); 
Sindeton v. Kansas City Base Ball Co., 172 Mo. App. 299 Acc(yrd. 

To hold a man by the sleeve without professing to arrest him or leading him to 
believe he is not free to get away is not an imprisonment. Macintosh v, Cohen, 24 
N. Zeal. L. R. 626. 



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22 PIKE V. HANSON [CHAP. I. 

Wilcox, J.^ . . . But it is contended that in the present case 
there has been no assault committed, and no false imprisonment. 
Bare words will not make an arrest : there must be an actual touching 
of the body; or, what is tantamoimt, a power of taking immediate 
possession of the body, and the party's submission thereto. Genner 
V, Sparkes, 1 Salk. 79. Where a baiUff, having a writ against a person, 
met him on horseback, and said to him, " You are my prisoner," upon 
which he turned back and submitted, this was held to be a good arrest, 
though the bailiff never laid hand on him. But if, on the bailiff's 
saying those words, he had fled, it had been no arrest, unless the bailiff 
had laid hold of him. Homer v. Battjm, Buller's N. P. 62. The same 
doctrine is held in other cases. Russen v, Lucas & al., 1 Car. & P. 153; 
Chinn v, Morris, 2 Car. & P. 361; Pocock v, Moore, Ry. & M. 321; 
Strout V. Gooch, 8 Greenl. 126; Gold v. Bissell, 1 Wend. 210. 

Where, upon a magistrate's warrant being shown to the plaintiff, 
the latter voluntarily and without compulsion attended the constable 
who had the warrant to the magistrate, it was held there was no suf- 
ficient imprisonment to support an action. Arrowsmith v. Le Me- 
surier, 2 B. & P. N. R. 211. But in this case there was no declaration 
of any arrest, and the warrant was in fact used only as a summons. 
And if the decision cannot be sustained upon this distinction, it must 
be regarded as of doubtful authority. 

Starkie says that in ordinary practice words are sufficient to consti- 
tute an imprisonment, if they impose a restraint upon the person, and 
the plaintiff is accordingly restrained; for he is not obliged to incur 
the risk of personal violence and insult by resisting, imtil actual vio- 
lence be used. 3 Stark. Ev. 1113. This principle is reasonable in 
itself, and is fully sustained by the authorities above cited. Nor does 
it seem necessary that there should be any very formal declaration of 
an arrest. If the oflScer goes for the purpose of executing his warrant; 
has the party in his presence and power; if the party so understands 
it, and in consequence thereof submits, and the officer, in execution of 
the warrant, takes the party before a magistrate, or receives money or 
property in discharge of his person, we think it is in law an arrest, 
although he did not touch any part of the body. 

In the case at bar, it clearly appears that the plaintiff did not in- 
tend to pay the tax, imless compelled by an arrest of her person. The 
collector was so informed. He then proceeded to enforce the collection 
of the tax, — declared that he arrested her, — and she, imder that re- 
straint, paid the money. This is a sufficient arrest and imprisonment 
to sustain the action, and there must, therefore, be 

Judgment on the verdict? 

^ Part of the case, not relating to imprisonment, has been omitted. 

» Johnson v. Tompkins, Baldw. C. C. 571, 601; Collins v. Fowler, 10 Ala. 858; 
Courtoy v, Dozier, 20 Ga. 369; Hawk v. Ridgwav, 33 111. 473; Brushaber v. Stege- 
mann, 22 Mich. 266; Josselyn v. McAllister, 25 Mich. 45; Moore t>. Thompson, 92 



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SECT, n.] FOTHERINGHAM t;. ADAMS EXPRESS CO. 23 

FOTHERINGHAM v. ADAMS EXPRESS CO. 

In the United States Circuit Court, Eastern District, 

Missouri, September 24, 1888. 

Reported in 36 Federal Reporter, 252. 

Thayer, J.* With reference to the motion for a new trial which has 
been filed in this case and duly considered, it will suffice to say, that I 
entertain no doubt that the jury were warranted in finding that plain- 
tiff was unlawfully restrained of his liberty from about the 27th or 
28th of October until tEe 10th of November following; that is to say, 
for a period of about two weeks. The testimony in the case clearly 
showed that during that period he was constantly guarded by detec- 
tives employed by defendant for that purpose; that he was at no time 
free to come and go as he pleased; that his movements were at all 
times subject to the control and direction of those who had him in 
charge; that he was urged by them on several occasions to confess Ms 
guilt, and make known his confederates; and that he was subjected 
to repeated examinations and cross-examinations touching the rob- 
bery, of such character as clearly to imply that he was regarded as a 
criminal, and that force would be used to detain him if he attempted 
to assert his liberty. The jury in all probability found (as they were 
warranted in doing) that during the time plaintiff remained in com- 
pany with the detectives, he was in fact deprived of all real freedom of 
action, and that whatever consent he gave to such restraint was an 
enforced consent, and did not justify the detention without a warrant. 
It is manifest that the court ought not to disturb the finding on that 
issue.* 

Mich. 498; Ahem v. Collins, 39 Mo. 145; Strout v. Gooch, 8 Greenl. 126; Mowry 
V. Chase. 100 Mass. 79; Emery v. Chesley, 18 N. H. 198; Browning v. Ritten- 
house, 40 N. J. Law, 230; Hebrew v. Pulis, 73 N. J. Law, 621; Gold v. Bissell, 1 
Wend. 210; Van Voorhees v. Leonard, 1 Thomp. & C. 148; Searls v. Viets, 2 
Thomp. & C. 224; Limbeck v, Gerry, 15 Misc. 663; Martin v. Houck, 141 N. C. 
317; Huntington v. Shultz, Harp. 452; Mead v. Young, 2 Dev. & Batt. 521; 
Ha«dns v. Young, 2 Dev. & Batt. 527; Jones v. Jones, 13 Ired. 448; McCracken v. 
Ansley, 4 Strob. 1; Gunderson t;. Struebing, 125 Wis. 173 Accord. 

Submission to wrongful detention by conductor of a train in consequence of his 
representation of authority to detain plaintiff was held an imprisonment in Whit- 
man V. Atchison R. Co., 85 Kan. 150. 

There must be reasonable ground for fear that defendant will use force. Powell 
V. Champion Fibre Co., 150 N. C. 12. 

But compare Cottam v, Oregon City, 98 Fed. 570, deciding that a submission to 
arrest rather than pay an ille^ license fee is not an imprisonment. 

* A portion of the case, relating to damages, is omitted. 

* As to " shadowing " by detectives, see Chappell v. Stewart, 82 Md. 323; 
People t^. Weiler, 179 N. Y. 46; Schultz i;. Ins. Co., 151 Wis. 537. 



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24 BIRD V. JONES [CHAP. I, 

BIRD t;. JONES 

In the Queen's Bench, Trinity Vacation, 1845, 

Reported in 7 Queen's Bench Reports, 742. 

This action was tried before Lord Denman, C. J., at the Middlesex 
sittings after Michaelmas term, 1843, when a verdict was found for 
the plaintiff. 

In Hilary term, 1844, Thesiger obtained a rule nisi for a new trial, 
on the ground of misdirection. 

In Trinity term, in the same year (June 5), Piatt, Humfrey, and 
Hance showed cause, and Sir F. Thesiger, SoUcitor-General, supported 
the rule. 

The judgments sufficiently explain the nature of the case. 

Cur. adv. vult. 

In this vacation (9th July), there being a difference of opinion on 
the bench, the learned judges who heard the argument deUvered 
judgment seriatim. 

Coleridge, J. In this case, in which we have unfortunately been 
unable to agree in our judgment, I am now to pronoimce the opinion 
which I have formed; and I shall be able to do so very briefly, be- 
cause, having had the opportunity of reading a judgment prepared by 
my Brother Patteson, and entirely agreeing with it, I may content 
myself with referring to the statement he has made in detail of those 
preliminary points in which we all, I beUeve, agree, and which bring 
the case up to that point upon which its decision must certainly turn, 
and with regard to which our difference exists. 

This point is, whether certain facts, which may be taken as clear 
upon the evidence, amoimt to an imprisonment. These facts, stated 
shortly, and as I imderstand them, are in effect as follows: — 

A part of a pubUc highway was inclosed, and appropriated for spec- 
tators of a boat-race, paying a price for their seats. The plaintiff was 
desirous of entering-this part, and was opposed by the defendant; but, 
after a struggle, during which no momentary detention of his person 
took place, he succeeded in climbing over the inclosure. Two police- 
men were then stationed by the defendant to prevent, and they did 
prevent, him from passing onwards in the direction in which he de- 
clared his wish to go; but he was allowed to remain unmolested where 
he was, and was at liberty to go, and was told that he was so, in the 
only other direction by which he could pass. This he refused for 
some time, and during that time remained where he had thus placed 
himself. 

These are the facts; and, setting aside those which do not properly 
bear on the question now at issue, there will remain these: that the 
plaintiff, being in a pubUc highway and desirous of passing along it 
in a particular direction, is prevented from doing so by the orders of 



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SECT. 11.] BIRD V. JONES 25 

the defendant, and that the defendant's agents for the purpose are 
policemen, from whom, indeed, no mmeeessary violence was to be 
anticipated, or such as they believed unlawful, yet who might be ex- 
pected to execute such commands as they deemed lawful with all 
necessary force, however resisted. But although thus obstructed, the 
plaintiff was at Uberty to move his person and go in any other direc- 
tion, at his free will and pleasure; and no actual force or restraint on 
his person was used, unless the obstruction before mentioned amounts 
to so much. 

I lay out of consideration the question of right or wrong between 
these parties. The acts will amount to imprisonment, neither more 
nor less, from their being wrongful or capable of justification. 

And I am of opinion that there was no imprisonment. To call it so 
appears to me to confound partial obstruction and disturbance with 
total obstruction and detention. A prison may have its boimdary 
large or narrow, visible and tangible, or, though real, still in the con- 
ception only; it may itself be movable or fixed; but a boundary it 
must have, and that boimdary the party imprisoned must be pre- 
vented from passing; he must be prevented from leaving that place, 
within the ambit of which the party imprisoning would confine him, 
except by prison breach. Some confusion seems to me to arise from 
confounding imprisonment of the body with mere loss of freedom: it 
is one part of the definition of freedom to be able to go whithersoever 
one pleases; but imprisonment is something more than the mere loss 
of this power: it includes the notion of restraint within some limits 
defined by a will or power exterior to our own. 

In Com. Dig. Imprisonment (G), it is said: " Every restraint of the 
liberty of a free man will be an imprisonment." For this the author- 
ities cited are 2 Inst. 482; Cro. Car. 209. But when these are referred 
to, it will be seen that nothing was intended at all inconsistent with 
what I have ventured to lay down above. In both books the object 
was to point out that a prison was not necessarily what is commonly 
so called, a place locally defined and appointed for the reception of 
prisoners. Lord Coke is commenting on the statute of Westminster 
2d,^ in priaona, and sa5rs: '* Every restraint of the liberty of a freeman 
is an imprisonment, although he be not within the walls of any com- 
mon prison." The passage in Cro. Car. 209, is from a curious case of 
an information against Sir Miles Hobert and Mr. Stroud for escaping 
out of the Gate-house Prison, to which they had been committed by 
the king. The question was whether, imder the circumstances, they 
had ever been there imprisoned. Owing to the sickness in London, 
and through the favor of the keeper, these gentlemen had not, except 
on one occasion, ever been within the walls of the Gate-house. The 
occasion is somewhat singularly expressed in the decision of the court, 

1 Stat. 13 Ed. I. c. 48. 



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26 BIRD V, JONES [CHAP. I. 

which was " that their voluntary retirement to the close stool " in the 
Gate-house " made them to be prisoners." The resolution, however, 
in question is this: " that the prison of the King's Bench is not any 
local prison confined only to one place, and that every place where any 
person is restrained of his Uberty is a prison; as if one take sanctuary 
and depart thence, he shall be said to break prison." 

On a case of this sort, which, if there be difficulty in it, is at least 
purely elementary, it is not easy nor necessary to enlarge, and I am 
unwilling to put any extreme case hypothetically; but I wish to meet 
one suggestion, which has been put as avoiding one of the difficulties 
which cases of this sort might seem to suggest. If it be said that to 
hold the present case to amount to an imprisonment would turn every 
obstruction of the exercise of a right of way into an imprisonment, the 
answer is that there must be something like personal menace or force 
accompanymg the act of obstruction, and that, with this, it will 
amount to imprisonment. I apprehend that is not so. If, in the 
course of a night, both ends of a street were walled up, and there was 
no egress from the house but into the street, I should have no difficulty 
in saying that the inhabitants were thereby imprisoned; but if only 
one end were walled up, and an armed force stationed outside to pre- 
vent any scaling of the wall or passage that way, I should feel equally 
clear that there was no imprisonment. If there were, the street would 
obviously be the prison, and yet, as obviously, none would be con- 
fined to it. 

Knowing that my lord has entertained strongly an opinion directly 
contrary to this, I am under serious apprehension that I overlook 
some difficulty in forming my own; but, if it exists, I have not been 
able to discover it, and am therefore bound to state that, according to 
my view of the case, the rule should be absolute for a new trial.^ 

Lord Denman, C. J. I have not drawn up a formal judgment in 
this case, because I hoped to the last that the arguments which my 
learned brothers would produce in support of their opinion might alter 
mine. We have freely discussed the matter both orally and in written 
communications; but, after hearing what they have advanced, I am 
compelled to say that my first impression remams. If, as I must 
beUeve, it is a wrong one, it may be in some measure accounted for by 
the circumstances attending the case. A company unlawfully ob- 
structed a pubUc way for their own profit, extorting money from pas- 
sengers, and hiring policemen to effect this purpose. The plaintiff, 
wishing to exercise his right of way, is stopped by force, and ordered 
to move in a direction which he wished not to take. He is told at the 
same time that a force is at hand ready to compel his submission. 
That proceeding appears to me equivalent to being pulled by the 
collar out of the one line and into the other. 

* The concurring opinions of Williams and Patteson, JJ., are omitted. 



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SECT. H.] BIRD V. JONES 27 

There is some difficulty, perhaps, in defining imprisonment in the 
abstract without reference to its UlegaUty; nor is it necessary for me 
to do so, because I consider these acts as amounting to imprisonment. 
That word I imderstand to mean any restraint of the person by force. 
In Buller's Nisi Prius, p. 22, it is said: " Every restraint of a man's 
liberty under the custody of another, either in a gaol, house, stocks, 
or in the street, is. in law an imprisonment; and whenever it is done 
without a proper authority, is false imprisonment, for which the law 
gives an action; and this is commonly joined to assault and battery; 
for every imprisonment includes a battery, and every battery an 
assault." It appears, therefore, that the technical language has re- 
ceived a very large construction, and that there need not be any touch- 
ing of the person: a locking up would constitute an imprisonment, 
without touching. From the language of Thorpe, C. J., which Mr. 
Selwyn cites from the Book of Assizes, it appears that, even in very 
early times, restraint of liberty by force was understood to be the 
reasonable definition of imprisonment. 

I had no idea that any person in these times supposed any particu- 
lar boimdary to be necessary to constitute imprisonment, or that the 
restraint of a man's person from doing what he desires ceases to be 
an imprisonment because he may find some means of escape. 

It is said that the party here was at liberty to go in another direc- 
tion. I am not siu^ that in fact he was, because the same unlawful 
power which prevented him from taking one course might, in case of 
acquiescence, have refused him any other. But this liberty to do 
something else does not appear to me to affect the question of im- 
prisonment. As long as I am prevented from doing what I have a 
right to do, of what importance is it that I am permitted to do some- 
thing else ? How does the imposition of an unlawful condition show 
that I am not restrained ? If I am locked in a room, am I not im- 
prisoned, because I might effect my escape through a window, or 
because I might find an exit dangerous or inconvenient to myself, as 
by wading through water, or by taking a route so circuitous that ffy 
necessary affairs should suffer by delay ? 

It appears to me that this is a total deprivation of liberty with 
reference to the purpose for which he lawfully wished to employ his 
liberty; and, being effected by force, it is not the mere obstruction of 
a way, but a restraint of the person. The case cited as occurring 
before Lord Chief Justice Tindal, as I understand it, is much in point. 
He held it an imprisonment where the defendant stopped the plaintiff 
on his road till he had read a Ubel to him. Yet he did not prevent his 
escaping in another direction. 

It is said that if any damage arises from such obstruction, a special 
action on the case may be brought. Must I then sue out a new writ 
stating that the defendant employed direct force to prevent my going 
where my business called me, whereby I sustained loss ? And if I do. 



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28 BIRD V. JONES [CHAP4 I. 

is it certain that I shall not be told that I have misconceived my 
remedy, for all flows from the false imprisonment, and that should 
have been the subject of an action of trespass and assault ? For the 
jury properly found that the whole of the defendant's conduct was 
contmuous: it commenced in illegality; and the plaintiff did right to 
resist it as an outrageous violation of the liberty of the subject from 
the very first. Ride absolute.^ 

» Wright V. Wilson, 1 Ld. Raym. 739; Croesett ». Campbell, 122 La. 659; 
Balmain Ferry Co. v. Robertson, 4 C. L. R. (Australia) 379, aff'd [1910] A. C. 295; 
Queen v. Macquarie, 13 N. S. W. Sup. Ct. R. (Law) 264 (8e7nbU)Accord, 

See Hawk v. Rid^way, 33 lU. 473; Cullen v, Dickenson, 33 S. D. 27. 
' To order one to leave a boat which was moored to a wharf and, upon his re- 
fusal, to set the boat adrift is an imprisonment. Queen v. Macquarie, 13 N. S. W. 
Sup. Ct. R. (Law) 264. 

Compare Herd v. Weardale Steel Co. [19131 3 K. B. 771; Robinson v. Ferry Co. 
[19101 A. C. 295; Whittaker t;. Sanford, 110 Me. 77; Talcott ». National Exhibi- 
tion Co., 144 App. Div. 337. 



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CHAPTER II 

NEGLIGENT INTERFERENCE 



Section I 
Negligence as a Ground op Liabilitt 

WEAVER V. WARD 

In the King's Bench, Easter Term, 1616. 

Reported in Hobartf 134. 

Weaver brought an action of trespass of assault and battery against 
Ward. The defendant pleaded that he was, amongst others, by the 
commandment of the lords of the council, a trained soldier in Lon- 
don, of the band of one Andrews, captain, and so was the plaintiff: 
and that they were skirmishing with their muskets charged with 
powder for their exercise in re militari against another captain and 
his band; and as they were so skirmishing, the defendant, casualiter 
et per infortunium et contra voluniatem sv^m, in discharging his piece, 
did hurt and woimd the plaintiff; which is the same, Ac, absque hoCj 
that he was guilty aliter sive qlio modo. And, upon demurrer by the 
plaintiff, judgment was given for him; for, though it were agreed that 
if men tilt or tourney in the presence of the king, or if two masters of 
defence plajdng their prizes kill one another, that this shall be no 
felony, or if a lunatic Idll a man, or the like; because felony must be 
done animo felonico; yet, in trespass, which tends only to give dam- 
ages according to hurt or loss, it is not so; and therefore, if a lunatic 
hurt a man, he shall be answerable in trespass,^ and, therefore, no man 

* Gates V. Miles, 3 Conn. 64, 70; Mclntyre v. Sholty, 121 HI. 660; Amick v. 
O'Hara, 6 Blackf. 268, 259; Cross v. Kent, 32 Md. 581: Feld v. Borod6fski, 87 
Miss. 727; Bullock v. Babcock, 3 Wend. 391 : Krom v. Schoonmaker, 3 Barb. 647. 
(imprisonment); Wwxl v. Conatser, 4 Baxt. (Tenn.) 64; Brennan v. Donaghey, 19 
N. Zieal. Gaz. L. R. 289, affirming s. c. 2 New Zeal. Gaz. L. R. 410 Accord. 

The rule is the same as to torts in general. Behrens v. McKenzie, 23 la. 333, 
343; Chesapeake R. Co. v. Francisco, 149 Ky. 307; Morain v. Devlin, 132 Mass. 
87 (nuisance) -Gibson t;. Pollock, 179 Mo. App. 188; Jewell v. Colby, 66 N. H. 399; 
Re Heller, 3 Paige, 199; Williams v. Hays, 143 N. Y. 442 (compare Williams v. 
Hays, 157 N. Y. 541); Williams v. Cameron, 26 Barb. 172: Lancaster Bank v. 
Moore, 78 Pa. St. 407, 412; Morse v. Crawford, 17 Vt. 499 (conversion). 

A limatic has been held hable under a statute giving an action to the widow and 
children of one killed by the " careless, wanton, or maUcious " use of firearms. 
Young V. Young, 141 Ky. 76. 

In Mclntyre v. Sholty, supraj Magruder, J., said, p. 664: " It is well settled 
that, though a lunatic is not punishable criminally, he is liable in a civil action for 
any tort he may commit. However justly this doctrine may have been originally 

29^ 



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30 BROWN V. KENDALL [CHAP. II. 

shall be excused of a trespass (for this is the nature of an excuse, and 
not of a justification, proiU ei bene licuit), except it may be judged 
utterly without his fault; as if a man by force take my hand and strike 
you, or if here the defendant had said that the plaintiff ran across his 
piece when it was discharging, or had set forth the case with the cir- 
cumstances so as it had appeared to the coiuii that it had been inevi- 
table, and that the defendant had conmiitted no negligence to give 
occasion to the hurt.^ 



BROWN V. KENDALL 

Supreme Judicial Court, Massachusetts, October Term, 

1850. 
Reported in 6 Cushing, 292. 

This was an action of trespass for assault and battery, originally 
conmienced against George K. Kendall, the defendant, who died 
pending the suit, and his executrix was summoned in. 

It appeared in evidence, on the trial, which was before Wells, C. J., 
in the Court of Common Pleas, that two dogs, belonging to the plain- 
subject to criticism on the grounds of reason and principle, it is now too firmly sup- 
ported by the weight of authority to be disturbed. It is the outcome of the princi- 
ple, that, in trespass, the intent is not conclusive. Mr. Sed^^ck, in his work on 
Damases (margm, p. 456), says that, on principle, a lunatic should not be held 
liable for his tortious acts. Opposed to this view, however, is a majority of the 
decisions and text writers." 

" So long as the primitive notion prevaUed that the doer of harm was absolutely 
responsible therefor, the insanity or the doer could afford no defence, either to a 
criminal prosecution or a civil action. 7 Harv. L. Rev. 446. When this notion was 
so far modified that misadventure or accident on the part of the doer became a de- 
fence, it would have been entirely logical for the courts to treat the acts or the 
omissions of lunatics as involuntary, and consequently not tortious but acci- 
dental." Burdick, Torts (2d ed.), 60. See also Ames, Law and Morals, 22 Harv. 
L. Rev. 97, 99-100; Homblower, Insanity and the Law of Negligence, 6 Col. L. 
Rev. 278. 

" 827. A person who causes damage to another while in a condition of imcon- 
sciousness or in a condition of morbid disturbance of mental activity incompatible 
with the free determination of the will is not responsible for the damage. . . ." 

"829. A person who ... is by virtue of 827 . . . not responsible for any 
damage caused by him shall nevertneless where compensation cannot be obtained 
from a third party charged with the duty of supervision make compensation for 
damage in so far as according to the circumstances (e. g. according to the relative 
positions of the parties) equity requires compensation and he is not deprived of the 
means which he needs for his own maintenance suitable to his station in life and 
for the fulfilment of his statutory duties to furnish maintenance to others." — 
German Civil Code, §§ 827, 829. 

» Underwood v. Hewson, 1 Stra. 596; Welch v. Durand, 36 Conn. 182; Atchi- 
son V, Dullam, 16 111. App. 42; Hodges v. Weltberger, 6 Monr. (Ky.) 337; Louis- 
ville R. Co. V. Sweeney, 167 Ky. 620; Chataigne v. Bergeron, 10 La. An. 699; 
Sullivan v. Murphy, 2 Miles (Pa.) 298; Castle v. Duryee, 2 Keyes, 169; Taylor v. 
Rainbow, 2 Hen. & Mun. 423 Accord. 

See to the same effect Morgan v. Cox, 22 Mo. 373; Dygert v. Bradley, 8 Wend. 
469: Jennings v. Fundeburg, 4 McC. 161 ; Tally v. Ayres, 3 Sneed, 677 (the injury 
to chattels); Wetzel v. Satterwhite, (Tex. Civ. App.) 125 S. W. 93 (injury to prop- 
erty); Wright V. Clark, 50 Vt. 130. Compare Osbome v. Van Dyke, 113 la. 567. 



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SECT. I.] BROWN V. KENDALL 31 

tiflf and the defendant, respectively, were fighting in the presence of 
their masters; that the defendant took a stick about four feet long, 
and commenced beating the dogs in order to separate them; that the 
plaintiff was looking on, at the distance of about a rod, and that he 
advanced a step or two towards the dogs. In their struggle, the dogs 
approached the place where the plaintiff was standing. The defend- 
ant retreated backwards from before the dogs, striking them as he 
retreated; and as he approached the plaintiff, with his back towards 
him, in raising his stick over his shoulder, in order to strike the dogs, 
he accidentally hit the plaintiff in the eye, inflicting upon him a 
severe injury. 

Whether it was necessary or proper for the defendant to interfere 
in the fight between the dogs; whether the interference, if called for 
was in a proper manner, and what degree of care was exercised by each 
party on the occasion; were the subject of controversy between the 
parties, upon all the evidence in the case, of which the foregoing is an 
outline. 

The defendant requested the judge to instruct the j\iry, that " if 
both the plaintiff and defendant at the time of the blow were using 
ordinary care, or if at that time the defendant was using ordinary care 
and the plaintiff was not, or if at that time both plaintiff and defend- 
ant were not using ordinary care, then the plaintiff could not recover." 

The defendant further requested the judge to instruct the jury, 
that, " imder the circumstances, if the plaintiff was using ordinary 
care and the defendant was not, the plaintiff could not recover, and 
that the burden of proof on all these propositions was on the plaintiff." 

The judge declined to give the instructions, as above requested, but 
left the case to the jury imder the following instructions: " If the de- 
fendant, in beating the dogs, was doing a necessary act, or one which 
it was his duty under the circumstances of the case to do, and was 
doing it in a proper way; then he was not responsible in this action, 
provided he was using ordinary care at the time of the blow. If it 
was not a necessary act; if he was not in duty boimd to attempt to 
part the dogs, but might with propriety interfere or not as he chose; 
the defendant was responsible for the consequences of the blow, unless 
it appeared that he was in the exercise of extraordinary care, so that 
the accident was inevitable, using the word inevitable not in a strict 
but a popular sense." 

" If, however, the plaintiff, when he met with the injury, was not 
in the exercise of ordinary care, he cannot recover, and this rule ap- 
plies, whether the interference of the defendant in the fight of the dogs 
was necessary or not. If the jury believe, that it was the duty of the 
defendant to interfere, then the burden of proving negligence on the 
part of the defendant, and ordinary care on the part of the plaintiff, 
is on the plaintiff. If the jury believe, that the act of interference in 
the fight was imnecessary, then the burden of proving extraordinary 



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32 BROWN V. KENDALL [CHAP. II. 

care on the part of the defendant, or want of ordinary care on the part 
of the plaintiff, is on defendant.'' 

The jury under these instructions returned a verdict for the plain- 
tiff; whereupon the defendant alleged exceptions. 

Shaw, C. J. This is an action of trespass, vi ei armisj brought by 
George Brown against Greorge K. Kendall, for an assault and battery; 
and the original defendant having died pending the action, his execu- 
trix has been sununoned in. The rule of the common law, by which 
this action would abate by the death of either party, is reversed in this 
Commonwealth by statute, which provides that actions of trespass for 
assault and battery shall survive. Rev. Sts. c. 93, § 7. 

The facts set forth in the bill of exceptions preclude the supposition, 
that the blow, inflicted by the hand of the defendant upon the person 
of the plaintiff, was intentional. The whole case proceeds on the as- 
sumption, that the damage sustained by the plaintiff, from the stick 
held by the defendant, was inadvertent and unintentional; and the 
case involves the question how far, and imder what qualifications, the 
party by whose imconscious act the damage was done is responsible 
for it. We use the term " unintentional " rather than involuntary, 
because in some of the cases, it is stated, that the act of holding and 
using a weapon or instrument, the movement of which is the imme- 
diate cause of hurt to another, is a voluntary act, although its partic- 
ular effect in hitting and hurting another is not within the purpose or 
intention of the party doing the act. 

It appears to us, that some of the confusion in the cases on this sub- 
ject has grown out of the long-vexed question, imder the rule of the 
common law, whether a party's remedy, where he has one, should be 
sought in an action of the case, or of trespass. This is very distin- 
guishable from the question, whether in a given case, any action will 
lie. The result of these cases is, that if the damage complained of is 
the immediate effect of the act of the defendant, trespass vi et armis 
lies; if consequential only, and not immediate, case is the proper 
remedy. Leame v. Bray, 3 East, 593; Huggett v. Montgomery, 2 B. & 
P. N. R. 446, Day's Ed., and notes. 

In these discussions, it is frequently stated by judges, that when one 
receives injury from the direct act of another, trespass will lie. But 
we think this is said in reference to the question, whether trespass and 
not case will lie, assuming that the facts are such, that some action 
will lie. These dicta are no authority, we think, for holding, that 
damage received by a direct act of force from another will be sufficient 
to maintain an action of trespass, whether the act was lawful or unlaw- 
ful, and neither wilful, intentional, or careless. In the principal case 
cited, Leame v. Bray, the damage arose from the act of the defendant, 
in driving on the wrong side of the road, in a dark night, which was 
clearly negligent, if not unlawful. In the course of the argument of 
that case (p. 595), Lawrence, J., said: " There certainly are cases in 



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SECT. I.] BROWN V. KENDALL 33 

the books, where, the injury bemg direct and immediate, trespass has 
been holden to lie, though the injury was not intentional." The term 
" injury '' implies something more than damage; but, independently 
of that consideration, the proposition may be true, because though the 
injury was unintentional, the act may have been unlawful or negligent, 
and the cases cited by him are perfectly consistent with that supposi- 
tion. So the same learned judge in the same case says (p. 597), " No 
doubt trespass lies against one who drives a carriage against another, 
whether done wilfully or not." But he immediately adds, " Suppose 
one who is driving a carriage is negligently and heedlessly looking 
about him, without attending to the road when persons are passing, 
and thereby runs over a child and kills him, is it not manslaughter ? 
and if so, it must be trespass; for every manslaughter includes tres- 
pass; " showing what he understood by a case not wilful. 

We think, as the result of all the authorities, the rule is correctly 
stated by Mr. Greenleaf , that the plaintiflF must come prepared with 
evidence to show either that the intention was unlawful, or that the 
defendant was in fault; for if the injury was ima voidable, and the con- 
duct of the defendant was free from blame, he, will not be liable. 2 
Greenl. Ev. §§ 85-92. Wakeman v. Robinson, 1 Bing. 213. If, in the 
prosecution of a lawful act, a casualty purely accidental arises, no 
action can be supported for an injury arising therefrom. Davis v. 
Saunders, 2 Chit. R. 639; Com. Dig. Battery, A. (Day's Ed.) and 
notes; Vincent v. Stinehour, 7 Vt. 62. In applying these rules to the 
present case, we can perceive no reason why the instructions asked for 
by the defendant ought not to have been given; to this effect, that if 
both plaintiff and defendant at the time of the blow were using ordin- 
ary care, or if at that time the defendant was using ordinary care, and 
the plaintiff was not, or if at that time, both the plaintiff and defend- 
ant were not using ordinary care, then the plaintiiSF could not recover. 

In using this term, ordinary care, it may be proper to state, that 
what constitutes ordinary care will vary with the circimistances of 
cases. In general, it means that kind and degree of care, which pru- 
dent and cautious men would use, such as is required by the exigency 
of the case, and such as is necessary to guard against probable danger. 
A man, who should have occasion to discharge a gun, on an open and 
extensive marsh, or in a forest, would be required to use less circmn- 
spection and care, than if he were to do the same thing in an inhabited 
town, village, or city. To make an accident, or casualty, or, as the law 
sometimes states it, inevitable accident, it must be such an accident 
as the defendant could not have avoided by the use of the kind and 
degree of care necessary to the exigency, and in the circumstances in 
which he was placed. 

We are not aware of any circumstances in this case, requiring a dis- 
tinction between acts which it was lawful and proper to do, and acts 
of legal duty. There are cases, imdoubtedly, in which officers are 



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34 BROWN V. KENDALL [CHAP. H. 

bound to act under process, for the legality of which they are not re- 
sponsible, and perhaps some others in which this distinction would be 
important. We can have no doubt that the act of the defendant in 
attempting to part the fighting dogs, one of which was his own, and 
for the injurious acts of which he might be responsible, was a lawful 
and proper act, which he might do by proper and safe means. If, 
then, in doing this act, using due care and all proper precautions neces- 
sary to the exigency of the case, to avoid hurt to others, in raising his 
stick for that purpose, he accidentally hit the plaintiff in his eye, and 
woimded him, thk was the result of pure accident, or was involuntary 
and imavoidable, and therefore the action would not lie. Oi if the 
defendant was chargeable with some n^ligence, and if the plaintiflF 
was also chargeable with n^ligence, we think the plaintiff cannot 
recover without showing that the damage was caused wholly by the 
act of the defendant, and that the plaintiff's own negligence did not 
contribute as an efficient cause to produce it. 

The court instructed the j\iry, that if it was not a necessary act, and 
the defendant was not in duty bound to part the dogs, but might with 
propriety interfere or not as he chose, the defendant was responsible 
for the consequences of the blow, imless it appeared that he was in the 
exercise of extraordinary care, so that the accident was inevitable, 
using the word not in a strict but a popular sense. This is to be taken 
in connection with the charge afterwards given, that if the jury be- 
lieved, that the act of interference in the fight was imnecessary (that 
is, as before explained, not a duty incmnbent on the defendant), then 
the burden of proving extraordinary care on the part of the defendant, 
or want of ordinary care on the part of plaintiff, was on the defendant. 

The court are of opinion that these directions were not conformable 
to law. If the act of hitting the plaintiff was unintentional, on the 
part of the defendant, and done in the doing of a lawful act, then the 
defendant was not liable, unless it was done in the want of exercise of 
due care, adapted to the exigency of the case, and therefore such want 
of due care became part of the plaintiff's case, and the burden of proof 
was on the plaintiff to establish it. 2 Greenl. Ev. § 86; Powers v. 
Russell, 13 Pick. 69, 76; Tourtellot v. Rosebrook, 11 Met. 460. 

Perhaps the learned judge, by the use of the term extraordinary 
care, in the above charge, explained as it is by the context, may have 
intended nothing more than that increased degree of care and dili- 
gence, which the exigency of particular circumstances might require, 
and which men of ordinary care and prudence would use imder like 
circumstances, to guard against danger. If such was the meaning of 
this part of the charge, then it does not differ from our views, as above 
explained. But we are of opinion, that the other part of the charge, 
that the burden of proof was on the defendant, was incorrect. Those 
facts which are essential to enable the plaintiff to recover, he takes the 
burden of proving. The evidence may be offered by the plaintiff or by 



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SECT. I.] STANLEY V. POWELL 35 

the defendant; the question of due care, or want of care, may be essen- 
tially connected with the main facts, and arise from the same proof; 
but the effect of the rule, as to the burden of proof, is this, that when 
the proof is all in, and before the jury, from whatever side it comes, 
and whether directly proved, or inferred from circumstances, if it 
appears that the defendant was doing a lawful act, and unintentionally 
hit and hurt the plaintiff, then imless it also appears to the satisfaction 
of the jury, that the defendant is chargeable with some fault, negli- 
gence, carelessness, or want of prudence, the plaintiff fails to sustain 
the burden of proof, and is not entitled to recover. 

New trial ordered ^ 



STANLEY V. POWELL 

In the Queen's Bench Division, NovEifSER 3, 1890. 

Reported in [1891] 1 Queen's Bench, 86. 

Denman, J. This case was tried before me and a special jury at the 
last Maidstone Summer Assizes.* 

In the statement of claim the plaintiff alleged that the defendant 
had negligently and wrongfully and unskilfuUy fired his gun and 
wounded the plaintiff in his eye, and that the plaintiff, in consequence, 
had lost his sight and suffered other damage. The defendant denied 
the negligence alleged. After the evidence on both sides, which was 
conflicting, had been heard, I left the three following questions to the 
jiuy: 1. Was the plaintiff injured by a shot from defendant's gun ? 
2. Was the defendant guilty of negligence in firing the charge to which 
that shot belonged as he did ? 3. Damages. 

The undisputed facts were, that on Nov. 29, 1888, the defendant 
and several others were pheasant shooting in a party, some being 
inside and some outside of a wood which the beaters were beating. 
The right of shooting was in one Greenwood, who was of the party. 
The plaintiff was employed by Greenwood to carry cartridges and the 
game which might be shot. Several beaters were driving the game 
along a plantation of saplings towards an open drive. The plaintiff 
stxKxl just outside a gate which led into a field outside the plantation, 
at the end of the drive. The defendant was walking along in that field 
a few yards from the hedge which bounded the plantation. As he was 
walking along a pheasant rose inside the plantation; the defendant 
fired one barrel at this bird, and, according to the evidence for the 
defendant, struck it with his first shot. There was a considerable con- 
flict of evidence as to details; but the jury must, I think, be taken to 

> Nitro-Glycerine Caae, 15 Wall. 524, 638 (semble); Morris v. Piatt, 32 Conn. 
75, 84-90 (defendant in defending himself lawfully against A. fired a pistol at A., 
but accidentally hit the plaintiff) I Paxton v. Boyer, 67 111. 132 (facts similar to 
those in Morris v. Piatt, supra); Crabtree v. Dawson, 119 Ky. 148 Accord. 

* Only the opinion of the court is given. 



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36 STANLEY V. POWELL [CHAP. II. 

have adopted the version of the facts sworn to by the defendant's 
witnesses. They swore that the bird, when struck by the first shot, 
began to lower and turn back towards the beaters, whereupon the 
defendant fired his second barrel and killed the bird, but that a shot, 
glancing from the bough of an oak which was in or close to the hedge, 
and, striking the plaintiflF, must have caused the injury complained of. 
The oak in question, according to the defendant's evidence, was partly 
between the defendant and the bird when the second barrel was fired, 
but it was not in a line with the plaintiff, but, on the contrary, so 
much out of that line, that the shot must have been diverted to a con- 
siderable extent from the direction in which the gun must have been 
pointed in order to hit the plaintiff. The distance between the plaintiff 
and the defendant, in a direct line, when the second barrel was fired, 
was about thirty yards. The case for the plaintiff was entirely dif- 
ferent; but I think it must be held that the jury took the defendant's 
account of the matter, for they f oimd the second question left to them 
in the negative. Before summing up the case to the jury, I called the 
attention of the parties to the doctrine which seemed to have been laid 
down in some old cases — that, even in the absence of negligence, an 
action of trespass might lie; and it was agreed that I should leave the 
question of negligence to the jury, but that, if necessary, the pleadings 
were deemed to have been amended so as to raise any case or defence 
open upon the facts with liberty to the court to draw inferences of 
fact, and that the damages should be assessed contingently. The 
jury assessed them at £100. I left either party to move the court 
for judgment; but it was afterwards agreed that the case should be 
argued before mjrself on further consideration, and that I should give 
judgment, notwithstanding that I had left the parties to move the 
court, as though I had originally reserved it for further consideration 
before myself. « 

Having heard the arguments, I am of opinion that, by no amend- 
ment that could be made consistently with the finding of the jury 
could I properly give judgment for the plaintiff. It was contended 
on his behalf that this was a case in which an action of trespass would 
have lain before the Judicature Acts; and this contention was mainly 
foimded on certain dicta which, until considered with reference to 
those cases in which they are uttered, seem to support that conten- 
tion; but no decision was quoted, nor do I think that any can be 
foimd which goes so far as to hold, that if A. is injured by a shot from 
a gun fired at a bird by B., an action of trespass will necessarily he, 
even though B. is proved to have fired the gun without negligence and 
without intending to injure the plaintiff or to shoot in his direction. 

The jury having found that there was no negligence on the part of 
the defendant, the most favorable way in which it is now possible to 
put the case for the plaintiff is to consider the action as brought for a 
trespass, and io consider that the defendant has put upon the record 



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SECT. I.] STANLEY V. POWELL 37 

a defence denying negligence, and specifically alleging the facts, sworn 
to by his witnesses, which the jury must be considered to have found 
proved, and then, to consider whether those facts, coupled .with the 
absence of negligence established by the jury, amount to an excuse 
in law. 

The earliest case relied upon by the plaintiff was one in the year- 
book 21 Hen. 7, 28 A., which is referred to by Grose, J., in the course 
of the argument in Leame v. Bray, 3 East, 593, to be mentioned pres- 
ently, in these words: " There is a case put in the year-book, 21 Hen. 
7, 28 A., that where one shot an arrow at a mark which glanced from 
it and struck another, it was holden to be trespass." Returning to 
the case in the year-book, it appears that the passage in question was 
a mere didum of Rede, who (see 5 Foss' Lives of the Judges, p. 230) 
was at the time (1506) either a judge of the King's Bench or C. J. of 
the Common Pleas, which he became in October in that year, in a 
case of a very different kind from that in question, and it only amounts 
to a statement that an action of trespass may lie even where the act 
done by the defendant is unintentional. The words relied on are, 
" Mes ou on tire a les huts et blesse un home, coment que est incontre aa 
volonte, il sera dit un trespassor incontre son entent" But in that very 
passage Rede makes observations which show that he has in his mind 
cases in which that which would be prima facie a trespass may be 
excused. The next case in order of date relied upon for the plaintiff 
was Weaver v. Ward, decided in 1607. There is no doubt that that 
case contains dicta which per se would be in favor of the plaintiff, but 
it also contains the following summing up of the law applicable to 
cases of imintentional injury by acts which are prima facte trespasses: 
" Therefore, no man shall be excused of a trespass . . . except it may 
be judged utterly without his fault,'' showing clearly that there may 
be such cases. That case, after all, only decided that where the plain- 
tiff and defendant were skirmishing as soldiers of the train-band, and 
the one, " castuUiterj ei per infortunium, et contra voluntatem suam " 
(which must be translated " accidentally and involimtarily ") shot 
the other, an action of trespass would lie, unless he could show that 
such involuntary and accidental shooting was done under such cir- 
cimistances as utterly to negative negligence. Such cases may easily 
be supposed, in which there could be no two opinions about the mat- 
ter; but other cases may, as the present case did, involve considerable 
conflicts of evidence and opinion which until recently a jury only could 
dispose of. The case of Gibbons v. Pepper, 4 Mod. 405, decided in 
1695, merely decided that a plea merely showing that an accident 
caused by a runaway horse was inevitable, was a bad plea in an action 
of trespass, because, if inevitable, that was a defence under the general 
issue. It was a mere decision on the pleading, and laid down nothing 
as regards the point raised in the present case. The concluding words 
of the judgment, which show clearly the ratio decidendi of that case, 



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38 STANLEY V. POWELL [CHAP. II. 

are these: " He should have pleaded the general issue, for if the horse 
ran away against his will he would have been found not guiUy, because 
in such a case it cannot be said with any color of reason to be a battery 
in the rider." The more modem cases of Wakeman v. Robinson and 
Hall V. Feamley, lay down the same rule as regards the pleading 
point, though the former case may also be relied upon as an authority 
by way of dictum in favor of the plaintiff, and the latter may be fairly 
relied upon by the defendant; for Wightman, J., in his judgment 
explains Wakeman v. Robinson thus: " The act of the defendant " 
(viz., driving the cart at the very edge of a narrow pavement on which 
the plaintiff was walking, so as to knock the plaintiff down) " was 
prima fade imjustifiable, and required an excuse to be shown. When 
the motion in this case was first made, I had in my recoUection the 
case of Wakeman v. Robinson. It was there agreed that an involunr 
tary act might be a defence on the general issue. The decision indeed 
turned on a different point; but the general proposition is laid down. 
I think the amission to plead the defence here deprived the defendant 
of the benefit of it, and entitled the plaintiff to recover." 

But in truth neither case decides whether, where an act such as dis- 
charging a gun is voluntary, but the result injurious without negU- 
gence, an action of trespass can nevertheless be supported as against 
a plea pleaded and proved, and which the jury find established, to the 
effect that there was no negligence on the paji; of the defendant. 

The case of Underwood v. Hewson, 1 Str. 696, decided in 1724, was 
relied on for the plaintiff. The report is very short. " The defendant 
was uncocking a gun, and the plaintiff standing to see it, it went off 
and wounded him; and at the trial it was held that the plaintiff might 
maintain trespass — Strange pro defenderUe.'* The marginal note in 
Nolan's edition of 1795, not necessarily Strange's own composition, 
is this: " Trespass lies for an accidental hurt; " and in that edition 
there is a reference to Buller's N. P., p. 16. On referring to Buller, 
p. 16, where he is dealing with Weaver v. Ward, I find he writes as 
follows: " So (it is no battery) if one soldier hurt another in exercise; 
but if he plead it he must set forth the circumstances, so as to make it 
appear to the court that it was inevitable, and that he committed no 
negligence to give occasion to the hurt, for it is not not enough to say 
that he did it casualiterj et per infortunium, et contra voluntatem suam; 
for no man shall be excused of a trespass, imless it be justified entirely 
without his default: Weaver v. Ward; and, therefore, it has been 
holden that an action lay where the plaintiff standing by to see the 
defendant uncock his gun was accidentally wounded: Underwood v. 
Hewson." On referring back to Weaver v. Ward, I can find nothing 
in the report to show that the court held, that in order to constitute a 
defence in the case of a trespass it is necessary to show that the act 
was inevitable. If inevitable^ it would seem that there was a defence 
under the general issue; but a distinction is drawn between an act 



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SECT. I.] STANLEY V. POWELL 39 

which is inevitable and an act which is excusable, and what Weaver v. 
Ward really lays down is that " no man shall be excused of a trespass 
except it may be judged utterly without his fault." 

Day V. Edwards, D. 4 E. 5 T. R. 648 (1794), merely decides that 
where a man negligently drives a cart against the plaintiff's carriage, 
the injury being committed by the immeduUe act complained of, the 
remedy must be trespass, and not case. 

But the case upon which most reliance was placed by the plaintiff's 
counsel was Leame v. Bray, 3 East, 593. That was an action of tres- 
pass in which the plaintiff complained that the defendant with force 
and arms drove and struck a chaise which he was driving on the high- 
way against the plaintiff's curricle, which the plaintiff's servant was 
driving, by means whereof the servant was thrown out, and the horses 
ran away, and the plaintiff, who jumped out to save his life, was in- 
jured. The facts stated in the report include a statement that " the 
accident happened in a dark night, owing to the defendant driving his 
carriage on the wrong side of the road, and the parties not being able 
to see each other; and that if the defendant had kept his right side 
there was ample room for the carriages to have passed without injmy." 
The report goes on to state: " But it did not appear that blame was 
imputable to the defendant in any other respect as to the manner of his 
driving. It was therefore objected for the defendant, that the injury 
having happened from negligence and not wilfully, the proper remedy 
was by an action on the case, and not of trespass vi et armis; and the 
plaintiff was thereupon nonsuited." On the argument of the rule to 
set aside the verdict the whole discussion turned upon the question 
whether the injury was, as put by Lawrence, J., at p. 596 of the report, 
immediate from the defendant's act, or consequential only from it, and 
m the result the nonsuit was set aside. But it clearly appears from the 
report that there was evidence upon which the jury might have found 
negligence, and indeed the defendant's counsel assumed it in the very 
objection which prevailed with Lord EUenborough when he nonsuited 
the plaintiff. There is nothing in any of the judgments to show that 
if in that case a plea had been pleaded denying any negligence, and the 
jury had found that the defendant was not guilty of any negligence, 
but (for instance) that the accident happened wholly through the 
darkness of the night making it impossible to distinguish one side of 
the road from the other and without negligence on either side, the 
court would have held that the defendant would have been liable 
either in trespass or in case. 

All the cases to which I have referred were before the Court of 
Exchequer in 1875, in the case of Holmes v, Mather, and Bramwell, 
B., in giving judgment in that case, dealt with them thus: " As to the 
cases cited, most of them are really decisions on the form of action, 
whether case or trespass. The result of them is this, and it is intel- 
ligible enough: if the act that does an injury is an act of direct force 



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40 STANLEY V. POWELL [CHAP. H. 

vi et armis, trespass is the proper remedy (if there is any remedy), 
where the act is wrongful either as being wilful or as being the result 
of negligence. Where the act is not wrongful for either of these rea- 
sons, no action is maintainable, though trespass would be the proper 
form of action if it were wrongful. That is the effect of the decisions." 
This view of the older authorities is in accordance with a passage 
cited by Mr. Dickens from Bacon's Abridgment, Trespass, I., p. 706, 
with a marginal reference to Weaver v. Ward. In Bacon the word 
" inevitable " does not find a place. " If the circiunstance which is 
specially pleaded in an action of trespass do not make the act com- 
plained of lawful " (by which I imderstand justifiable even if pur- 
posely done to the extent of purposely inflicting the injury, as, for 
instance, in a case of self-defence) " and only make it excusable, it 
is proper to plead this circimistance in excuse; and it is in this case 
necessary for the defendant to show not only that the act complained 
of was accidental " (by which I understand, " that the injury was im- 
intentional "), " but likewise that it was not owing to neglect or want 
of due caution." In the present case the plaintiff sued in respect of 
an injury owing to the defendant's negligence, — there was no pre- 
tence for saying that it was intentional so far as any injury to the 
plaintiff was concerned, — and the jury negatived such negligence. 
It was argued that nevertheless, inasmuch as the plaintiff was injured 
by a shot from the defendant's gun, that was an injury owing to ah 
act of force committed by the defendant, and therefore an action 
would lie. I am of opinion that this is not so, and that against any 
statement of claim which the plaintiff could suggest the defendant 
must succeed if he were to plead the facts sworn to by the witnesses 
for the defendant in this case, and the jury believing those facts, as 
they must now be taken by me to have done, foimd the verdict which 
they have foimd as regards negligence. In other words, I am of 
opinion that if the case is regarded as an action on the case for an 
injury by negligence the plaintiff has failed to establish that which is 
the very gist of such an action; if, on the other hand, it is turned into 
an action for trespass, and the defendant is (as he must be) supposed 
to have pleaded a plea denying negligence and establishing that the 
injury was accidental in the sense above explained, the verdict of the 
jury is equally fatal to the action. I am, therefore, of opinion that I 
am boimd to give judgment for the defendant. As to costs, they must 
follow, imless the defendant foregoes his right. 

Judgment for the defendant,^ 

1 Alderson v. Waistell. 1 Car. & K. 358; The Virgo, 25 W. R. 397; Nitro- 
Glycerine Case, 15 Wall. 524 (semhle); Strouse v. Whittlesey, 41 Conn. 559; 
Sutton V. Bonnett, 114 Ind. 243; Holland v. Bartch, 120 Ind. 46 (see also Bennett 
V. Ford, 47 Ind. 264); Harvey v. Dunlop, Hill & D. 193; Center v. Finney, 17 
Barb. 94, Seld. Notes, 80 Accord. 

But one who by blasting throws rocks upon the plaintiff's land is liable in tres- 
pass quare dausum fregitj irrespective of negligence. Central Co. v. Vandenheuk, 



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SECT. I.J SULLIVAN V. OLD COLONY STREET RAILWAY 41 

SULLIVAN V. OLD COLONY STREET RAILWAY 

Supreme Judicial Court, Massachusetts, November 30, 1908. 

Reported in 200 Massachusetia ReportSj 303. 

Tort. The first count in the declaration alleged that, while the 
pkdntiflF was a passenger on an electric car of the defendant, the 
car was derailed at Tiverton, owing to the (defendant's negligence, 
" whereby the plaintiff was jolted and in many ways injured externally 
and internally." 

At the trial, plaintiflF testified substantially to the same effect as the 
allegations in the declaration. As to the derailment, he testified that 
it was violent and that he was much thrown about. The evidence for 
the defendant tended to show that there was practically no jar when 
the car left the rails at Tiverton. 

At the close of the evidence plaintiff requested, among others, the 
following ruling: — 

" 1. Upon all the evidence the plaintiff is entitled to recover on the 
first count.'' 

The judge refused to so rule. 

The judge instructed the jury, in part, as follows: — 

" The only matters, then, of damages for you to consider are these: 
First, what was the effect upon the plaintiff of the jolts when the car 
was derailed ? To what extent did they injure the plaintiff ? " 

Plaintiff excepted to the charge. Verdict for defendant.^ 

Sheldon, J. No question was made at the trial but that the de- 
fendant was liable for any injury done to the plaintiff by reason of 
its car having left the track. But if no injury was caused by this to 
the plaintiff, if he suffered no damage whatever from the defendant's 
negligence, then he would not be entitled to recover. Although there 
has been negligence in the performance of a legal duty, yet it is only 
those who have suffered damage therefrom that may maintain an 
action therefor. Heaven v. Pender, 11 Q. B. D. 503, 507; Farrell v. 
Waterbury Horse Railroad, 60 Conn. 239, 246; Sahnon r. Delaware, 
Lackawanna & Western Railroad, 19 Vroom, 5, 11; 2 Cooley on 
Torts (3d ed.), 791; Wharton on Negligence (2d ed.), sect. 3. In 
cases of negligence, there is no such invasion of rights as to entitle 
plaintiff to recover at least nominal damages, as in Hooten v, Barnard, 
137 Mass. 36, and McAneany v. Jewett, 10 Allen, 151.* Accordingly, 

147 Ala. 546; Besaemer Co. v. Doak, 152 Ala. 166; Sloes Co. v. Salser, 158 Ala. 
511; Birmingham Co. v. Grover, 159 Ala. 276; Hay v. Cohoes Co., 2 N. Y. 159; 
Tremain v. Cohoes Co., 2 N. Y. 163: St. Peter v. Denison, 58 N. Y. 416; Sullivan 
V. Dunham. 161 N. Y. 290; Holland House v. Baird, 169 N. Y. 136, 140. And the 
same rule nas been applied to trespass to the person bv blasting. Sullivan v. 
Dunham, 161 N. Y. 290; Turner v. Degnon Co., 99 App.'Div. 135. 

' Only so much of the report is given as relates to the first count. 

« See The Mediana, [1900] A. C. 113, 116-118; Columbus Co. v. Clowes, [1903] 
1 K. B. 244. 



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42 HART V. ALLEN [CHAP. II. 

the first and second of the plaintiff's requests for rulings could not have 
been given, and the rulings made were all that the plaintiff was 
entitled to. Exceptions overruled.^ 



HART V. ALLEN 

Supreme Court, Pennsylvania, October Term, 1833. 
Reported in 2 WaUa, 114. 

Action on the case against owners of a vessel.* Plaintiff put in 
evidence a bill of lading of chests of tea shipped on board defendant's 
vessel; " to be delivered in good order, unavoidable accidents and the 
dangers of the river excepted. . . ." Plaintiff also proved that the 
teas were delivered by defendants in a damaged state, owing to their 
having been wet. Defendants gave evidence that the boat, when on 
her passage up the river, was driven by a sudden squall of wind and 
snow sidewise, whereby the teas were wet and damaged; that she was 
well fitted for the voyage; that every exertion was made to save her; 
and that Samuel Johnston, the captain, was a man of experience. To 
rebut this the plaintiff gave evidence that Samuel Johnston was not 
an experienced boatman or pilot. 

Judgment below for plaintiff. The original defendants brought 
error. One of the errors assigned was as foUows: — 

The court below erred in charging the jury, that although the acci- 
dent in this case resulted from the act of God, and could not have 
been prevented by any human prudence or foresight; and although 
it would, in this respect, come within the exception that excuses the 
carrier in case of loss: still, if the crew of the boat was not suflicient, 
or if she was not under the control of a master or pilot sufliciently 
skilled to perform the duties corresponding to his station, the carrier 
cannot avail himself of the exception, nor excuse himself from re- 
sponsibility to the owner, to the extent of the injury done to the goods. 
And also, in substance, that if the jury think that the boat was not 
fit for the voyage, or the master not competent, or the crew insuflS- 
cient; they ought to find a verdict for the plaintiff, whatever might 
be their opinion as to the real cause of the upsetting of the boat. 

Gibson, C. J. Had the judge said no more than that the carrier is 
bound to provide a carriage or vessel in all respects adequate to the 
purpose, with a conductor or crew of competent skill or ability, and 
that " failing in these particulars, though the loss be occasioned by 

* Brunsden v. Humphrey, 14 Q. B. D. 141, 160 (eemble); Voerin v, American 
Steel Co., 179 111. App. 246; Muncie Pulp Co. v. Davis, 162 Indf. 668; Foster v. 
County, 63 Kan. 43; Stepp v. Chicago R. Co., 86 Mo. 229; Commercial Bank v. 
Ten Eyck, 48 N. Y. 306; McCaflFreyt;. Twenty-Third St. R. Co., 47 Hun, 404; 
Washington v. Baltimore R. Co., 17 W. Va. 190 Accord. 

Compare Clifton v. Hooper, 6 Q. B. 468. 

* Statement condensed. Only part of opinion is given. 



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SECT. I.] HART V. ALLEN 43 

the act of God, he shall not set up a providential calamity to protect 
himself against what may have arisen from his own folly; " there 
would have been no room for an exception. But the cause was event- 
ually put to the jury on a different principle: " though the accident 
resulted from the act of God," it was said, " and could not have been 
prevented by any human prudence or foresight, and though it would in 
this respect otherwise have come within the exception that excuses the 
carrier in case of loss: still, if the crew of the office [?] were not suffi- 
cient, or if she were not under the control of a master or pilot suf- 
ficiently skilful to perform the duties correspondent to his station, the 
carrier cannot avail himself of the exception." By this the jury were 
instructed, in accordance, as it was supposed, with the principle of 
Bell V. Reed and Beelor, 4 Binn. 127, that want of seaworthiness has 
the peculiar effect of casting every loss, from whatever cause, on the 
carrier, as a penalty, I presume, for his original delinquency, and not 
for its actual or supposed instrumentality in contributing to the dis- 
aster, which is admitted to have been produced, in this instance, by 
causes imconnected with the master or crew, and to have been of a 
nature which no human force or sagacity could control. 

Does such a penalty necessarily result from the nature of the con- 
tract ? A carrier is answerable for the consequences of negligence, 
not the abstract existence of it. Where the goods have arrived safe, 
no action lies against him for an intervening but inconsequential act 
of carelessness; nor can it be set up as a defence against payment of 
the freight; and for this plain reason, that the risk from it was all his 
own. Why, then, should it, in any other case, subject him to a loss 
which it did not contribute to produce, or give an advantage to one 
who was not prejudiced by it ? It would require much to reconcile 
to any principle of policy or justice, a measm^ of responsibility which 
would cast the burthen of the loss on a carrier whose wagon had been 
snatched away by a whirlwind in crossing a bridge, merely because it 
had not been furnished with a proper cover or tilt to protect the goods 
from the weather. Yet the omission to provide such a cover would be 
gross negUgence, but, Uke that imputed to the carrier in the case before 
us, such as could have had no imaginable effect on the event. A car- 
rier is an insurer against all losses without regard to degrees of negli- 
gence in the production of them, except such as have been caused by 
an act of providence, or the common enemy: and why is he so ? Un- 
doubtedly to subserve the purposes, not of justice in the particular 
instance, but of policy and convenience: of policy, by removing from 
. him all temptation to confederate with robbers or thieves — and of 
convenience, by relieving the owner of the goods from the necessity 
of proving actual negligence, which, the fact being peculiarly within 
the knowledge of the carrier or his servants, could seldom be done. 
Jones on Bail. 108, 109; 2. Kent, 59, 78. Such are the rule and the 
reason of it, and such is the exception. But we should enlarge the rule, 



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44 HART V. ALLEN [CHAP. II. 

or to speak more properly, narrow the exception far beyond the ex- 
igencies of policy or convenience, did we hold him an insurer against 
even the acts of providence, as a punishment for an abstract delin- 
quency, where there was no room for the existence of a confederacy, 
or the operation of actual negligence; and to carry a responsibility, 
founded in no principle of natural equity beyond the requirements of 
necessity, would be gratuitous injustice. A delinquency which might 
have contributed to the disaster, such, for instance, as is imputable to 
the owner of a ship driven on a lee shore, for a defect in the rigging or 
sails, would undoubtedly be attended with different consequences; 
for as it would be impossible to ascertain the exact effect of the delin- 
quency on the event, the loss would have to be borne by the delinquent 
on a very common principle, by which any one whose carelessness has 
increased the danger of injury from a sudden commotion of the ele- 
ments, is chargeable with all the mischief that may ensue: as in Tur- 
berville v. Stamp, Skin. 681, where it was adjudged, that the negligent 
keeping of fire in a close would subject the party to all the conse- 
quences, though proximately produced by a sudden storm; and the 
same principle was held by this court in The Lehigh Bridge Company 
V. The Lehigh Navigation, 4 Rawle, 9. But it would be too much to 
require of the carrier to make good a loss from shipwreck, for having 
omitt^ to provide the ship with proper papers, which are a con- 
stituent part of seaworthiness, and the omission of them an imdoubted 
negligence. 

The first question, therefore, will be, whether the captain and crew 
of the boat had the degree of ability and skill thus indicated; and if 
it be found that they had not, then the second question will be, 
whether the want of it contributed in any degree to the actual dis- 
aster: but if either of these be found for the carrier, it will be decision 
[decisive ?] of the cause. It seems, therefore, that . . . the cause 
ought to be put, on these principles, to another jury. 

Judgment reversed, and a venire de novo awarded} 

1 Carlisle Banking Co. v. Bragg, [19111 1 K. B. 489; Jackson v. Metropolitan R. 
Co., 2 C. P. D. 125; Steel Car Co. v, Chec, 184 Fed. 868; Louisville R. Co. v. 
Pearce, 142 Ala. 680; Florida R. Co. v. Williams. 37 Fla. 406; Peiry v. Central R., 
66 Ga. 746; Cleveland R. Co. v. Lindsay, 109 lU. App. 533; City v. Martin. 74 
Ind. 449; Hart i;. Brick Co., 154 la. 741; Gojns v. North Coal Co., 140 Kv. 323; 
County V, Colliaon, 122 Md. 91; lutein v. Hurley, 98 Mass. 211; McNally v. 
ColweU, 91 Mich. 527; Harlan v. St. Louis R. Co., 65 Mo. 22; Wallace v. Chicago 
R. Co., 48 Mont. 427; Brotherton v. Manhattan Beach Co., 48 Neb. 563; Koch v. 
Fox, 71 App. Div. 288; Alexander v. City, 165 N. C. 527; St. Louis R. Co. v. Hess, 
34 Okl. 615; Thubron i;. Dravo Co., 238 Pa. St. 443; Anderson v. Southern R. 
Co., 70 S. C. 490; Newton i;. Oregon R. Co., 43 Utah, 219; Sowles v. Moore, 65 
Vt. 322; Schwartz v, Shull, 45 W. Va. 405; Klatt v. Foster, 92 Wis. 622 Accord. 



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SECT. II.] SPADE V. LYNN A BOSTON R. CO. 45 



Section II 
Interests Secured 



lil 



3PADE V. LYNN & BOSTON R. CO. 

Supreme Judicial Court, Massachusetts, May 19, 1897. 

Reported in 168 Massachusetts Reports, 285. 

Tort, for personal injuries occasioned to the plaintiff by the alleged 
negligence of the defendant. The declaration contained three counts. 

The third count ^ alleged that while the plaintiff was a passenger in 
the defendant's car, and in the exercise of due care, " one of the de- 
fendant's agents or servants, in attempting to remove from the said 
car a certain person claimed and alleged by said defendant's agent to 
be noisy, turbulent, and unfit to remain as a passenger in said car, 
conducted himself with such carelessness, negligence, and with the use 
of such unnecessary force, that said agent and servant, acting thus 
negUgently, created a disorder, disturbance, and quarrel in said car, 
and thereby frightened the plaintiff and subjected her to a severe 
nervous shock, by which nervous shock the plaintiff was ph)n5ically 
prostrated and suffered, and has continued to suffer, great mental and 
physical pain and anguish, and has been put to great expense." 

The defendant's answer was a general denial. 

Trial in the Superior Court, before Mason, C. J. 

The plaintiff testified, among other things, that the conductor in 
putting off an intoxicated man twitched him in such a way as to push 
another intoxicated man over on to the plaintiff. The evidence for 
the defendant tended to disprove plaintiff's claim that either of the 
intoxicated persons came in contact with her, or assaulted her. 

The defendant requested (inter alia) an instruction, that there was 
no evidence to warrant a verdict on the third count. This request 
was refused. 

The judge instructed the jury as follows: — 

" Now there is a third count to which attention must be called. If 
the jury should find that there was no bodily injury to the plaintiff 
direct from the acts of the conductor, that is, no person was thrown 
against the plaintiff, if that statement is not accurate, the plaintiff 
still contends that if the manner of the removal was such that it occa- 
sioned fright and nervous shock that resulted in bodily injury, that she 
is still entitled to recover for that bodily injury. And I have to say to 
you as matter of law, that if the wrongful acts of the conductor, on the 

> Only so much of the case as relates to this count is given. The arguments are 
omitted. The statement was compiled, by Professor Jeremiah Smith, from the bill 
(rf exceptions filed in the Social Law Library of Boston. 



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46 SPADE V. LYNN A BOSTON R. CO. [CHAP. U. 

occasion of removing the disorderly passenger, did occasion fright and 
nervous shock to the plaintiff, by reason of which she sustained bodily 
injury, that she can recover compensation for that injury. 

" It is settled law in this State that a person cannot recover for 
mere fright, fear or mental distress occasioned by the negligence of 
another, which does not result in bodily injury. 



" But when the fright or fear or nervous shock produces a bodily 
injury, then there may be recovery for that bodily injury, and for all 
the pain, mental or otherwise, which may arise out of that bodily 
injury. The brain and the nervous system are so closely connected 
with the mind, are the instruments by which the mind communicates 
with the body and operates upon it, that we sometimes deal with the 
nervous conditions as if they were mental conditions, and possibly the 
testimony has to some extent treated them as one. But for the pur- 
pose of the principle which I am now stating, a clear distinction exists 
between what is mental and what is nervous. The nervous system, 
the brain and the nerve fibres, are a part of the body, and injury to 
them is bodily injury. Now if by the wrongful acts of this defendant 
or its agents, there was a mental shock, fright, and it ended with that, 
there can be no recovery. But if that mental shock produced a bodily 
injury, a disturbance of the brain or nervous system which continued 
and caused subsequent suffering, there may be recovery for that bodily 
injury and all that follows from it." 

To the above instructions, the defendant excepted. 

Verdict for plaintiff. 

Allen, J. This case presents a question which has not heretofore 
been determined in this Commonwealth, and in respect to which the 
decisions elsewhere have not been uniform. It is this: whether in an 
action to recover damages for an injury sustained through the negli- 
gence of another, there can be a recovery for a bodily injury caused by 
mere fright and mental disturbance. TTie jury were instructed that a 
person cannot recover for mere fright, fear or mental distress occa- 
sioned by the negligence of another, which does not result in bodily 
injury,* but that when the fright or fear or nervous shock produces a 
bodily injury, there may be a recovery for that bodily injury, and for 
all the pain, mental or otherwise, which may arise out of that bodily 
injury. 

» Western Co. ». Wood, 57 Fed. 471; Kyle ». Chicago R. Co., 182 Fed. 613; Mc- 
Cray v, Sharpe, 188 Ala. 376; Bachelder v. Morgan, 179 Ala. 339; St. Louis Co. v, 
Taylor, 84 Ark. 42; Chicago Co. i;. Moss, 89 Ark. 187; Green i;. Southern R. Co., 9 
Ga. App. 751: Haas v, Metz, 78 111. App. 46; Kalen v, Terre Haute Co^ 18 Ind. 
App. 202; Zabron v. Cunard Co., 151 la. 345; Kentucky Traction Co. v. Bain, 161 
Ky. 44; Wyman v. Leavitt, 71 Me. 227: Wilson ». St. Louis R. Co., 160 Mo. App. 
649; Arthur v. Henry, 157 N. C. 438; Samarra v. Allegheny Co., 238 Pa. St. 469; 
Folk V, Seaboard Co., 99 S. C. 284; Chesapeake R. Co. v. Tinsley, 116 Va. 600; 
Gulf Co. V, Trott, 86 Tex. 412 Accord, 



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SECT, n.] SPADE V. LYNN & BOSTON R. CO. 47 

In Canning v. Williamstown, 1 Cush. 451, it was held, in an action 
against a town to recover damages for an injury sustained by the 
plaintiff in consequence of a defective bridge, that he could not re- 
cover if he sustained no injury to his person, but merely incurred risk 
and peril which caused fright and mental suffering. In Warren v. 
Boston & Maine Railroad, 163 Mass. 484, the evidence tended to show 
that the defendant's train struck the carriage of the plaintiff, thereby 
throwing him out upon the ground, and it was held to be a physical 
injury to the person to be thrown out of a wagon, or to be compelled 
to jump out, even although the harm consists mainly of nervous shock. 
It was not therefore a case of mere fright, and resulting nervous shock. 

The case calls for a consideration of the real ground upon which the 
liabiUty or non-liabiUty of a defendant guilty of negligence in a case 
like the present depends. The exemption from liabiUty for mere 
fright, terror, alarm, or anxiety does not rest on the assumption that 
these do not constitute an actual injury. They do in fact deprive one 
of enjoyment and of comfort, cause real suffering, and to a greater or 
less extent disqualify one for the time being from doing the duties of 
life. If these results flow from a wrongful or negligent act, a recovery 
therefor cannot be denied on the ground that the injury is fanciful and 
not real. Nor can it be maintained that these results may not be the 
direct and immediate consequence of the negligence. Danger excites 
alarm. Few people are wholly insensible to the emotions caused by 
imminent danger, though some are less affected than others. 

It must also be admitted that a timid or sensitive person may suffer 
not only in mind, but also in body, from such a cause. Great emotion 
may and sometimes does produce physical effects. The action of the 
heart, the circulation of the blood, the temperatm^ of the body, as 
well as the nerves and the appetite, may all be affected. A phjrsical 
injury may be directly traceable to fright, and so may be caused by 
it. We cannot say, therefore, that such consequences may not flow 
proximately from imintentional negligence, and if compensation in 
damages may be recovered for a physical injury so caused, it is hard 
on principle to say why there should not also be a recovery for the 
mere mental suffering when not accompanied by any perceptible 
ph3rsical effects. 

It would seem, therefore, that the real reason for refusing damages 
sustained from mere fright must be something different; and it prob- 
ably rests on the ground that in practice it is impossible satisfactorily 
to administer any other rule. The law must be administered in the 
courts according to general rules. Courts will aim to make these rules 
as just as possible, bearing in mind that they are to be of general ap- 
plication. But as the law is a practical science, having to do with the 
affairs of life, any rule is imwise if in its general appUcation it will not 
as a usual result serve the purposes of justice. A new rule cannot be 
made for each case, and there must therefore be a certain generality 



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48 SPADE V. LYNN A BOSTON B. CO. [CHAP. II. 

in rules of law, which in particular cases may fail to meet what would 
be desirable if the single case were alone to be considered. 

Rules of law respecting the recovery of damages are framed with 
reference to the just rights of both parties; not merely what it might 
be right for an injured person to receive, to afford just compensation 
for his injury, but also what it is just to compel the other party to 
pay. One cannot always look to others to make compensation for 
injuries received. Many accidents occur, the consequences of which 
the sufferer must bear alone. And in determining the rules of law by 
which the right to recover compensation for unintended injury from 
others is to be governed, regard must chiefly be paid to such conditions 
as are usually foimd to exist. Not only the transportation of pas- 
sengers and the running of trains, but the general conduct of business 
and of the ordinary affairs of life, must be done on the assumption 
that persons who are liable to be affected thereby are not peculiarly 
sensitive, and are of ordinary physical and mental strength. If, for 
example, a traveller is sick or infirm, deUcate in health, specially 
nervous or emotional, liable to be upset by sUght causes, and there- 
fore requiring precautions which are not usual or practicable for 
travellers in general, notice should be given, so that, if reasonably 
practicable, arrangements may be made accordingly, and extra care be 
observed.^ But, as a general rule, a carrier of passengers is not bound 
to anticipate or to guard against an injurious result which would only 
happen to a person of peculiar sensitiveness. This limitation of lia- 
bility for injury of another description is intimated in Allsop v. Allsop, 
5 H. & N. 534, 538, 539. One may be held bound to anticipate and 
guard against the probable consequences to ordinary people, but to 
carry the rule of damages further imposes an undue measure of respon- 
sibihty upon those who are guilty only of unintentional negligence. 
The general rule limiting damages in such a case to the natural and 
probable consequences of the acts done is of wide appUcation, and has 
often been expressed and appUed. Lombard v, Lennox, 155 Mass. 70; 
White V. Dresser, 135 Mass. 150; Fillebrown v. Hoar, 124 Mass. 580; 
Derry v. FUtner, 118 Mass. 131; Milwaukee & St. Paul Railway v. 
KeUogg, 94 U. S. 469, 475; Wyman v. Leavitt, 71 Maine, 227; EUis 
V. Cleveland, 55 Vt. 358; PhilUps v. Dickerson, 85 111. 11; Hampton 
V. Jones, 58 Iowa, 317; Renner v. Canfield, 36 Minn. 90; Lynch v. 
Knight, 9 H. L. Cas. 577, 591, 595, 598; The Nottmg HiU, 9 P. D. 105; 
Hobbs V, London & Southwestern Railway, L. R. 10 Q. B. Ill, 122. 

The law of negUgence in its special application to cases of accidents 
has received great development in recent years. The number of 

* " Ordinary street cars must be run with reference to ordinary susceptibilities, 
and the liability of their proprietors cannot be increased simply by a passenger's 
notifying the conductor that he has unstable nerves." Holmes J., m Spade v. 
L>Tin R. Co., 172 Mass. 488, 491. But compare Webber v. Old Colony K. Co., 
210 Mass. 432. 



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SECT. II.] SPADE V. LYNN A BOSTON R. CO. 49 

actions brought is very great. This should lead courts well to con- 
sider the grounds on which claims for compensation properly rest, and 
the necessary limitations of the right to recover. We remain satisfied 
with the rule that there can be no recovery for fright, terror, alarm, 
anxiety, or distress of mind, if these are unaccompanied by some 
physical injury; and if this rule is to stand, we think it should also be 
held that there can be no recovery for such physical injuries as may be 
caused solely by such mental disturbance, where there is no injury to 
the person from without. The logical vindication of this rule is, that 
it is imreasonable to hold persons who are merely negligent bound to 
anticipate and guard against fright and the consequences of fright; 
and that this would open a wide door for imjust claims, which could 
not successfully be met. These views are supported by the following 
decisions: Victorian Railways Commissioners v. Coultas, 13 App. Cas. 
222; Mitchell v. Rochester Railway, 161 N. Y. 107; Ewmg v. Pitts- 
burg, Cincinnati, Chicago & St. Louis Railway, 147 Perm. St. 40: 
Haile v. Texas A Pacific Railway, 60 Fed. Rep. 557. 

In the following cases, a different view was taken: Bell v. Great 
Northern Railway, 26 L. R. (Ir.) 428; Purcell v. St. Paul City Rail- 
way, 48 Minn. 134; Fitzpatrick v. Great Western Railway, 12 U. C. 
Q. B. 645. See also Beven, Negligence, 77 et seq. 

It is hardly necessary to add that this decision does not reach those 
classes of actions where an intention to cause mental distress or to 
hurt the feelings is shown, or is reasonably to be inferred, as for ex- 
ample, in cases of seduction, slander, malicious prosecution or arrest, 
and some others. Nor do we include cases of acts done with gross 
carelessness or recklessness, showing utter indifference to such conse- 
quences, when they must have been in the actor's mind. Lombard v. 
Lennox, and Fillebrown v. Hoar, already cited. Meagher v, Driscoll, 
99 Mass. 281. 

In the present case, no such considerations entered into the rulings 
or were presented by the facts. The entry therefore must be 

Exceptions sustained} 

* Victorian Commissioners v, Coultas, 13 App. Cas. 222; Haile v. Tex. Co., 60 
Fed. 557; St. Louis Co. v. Bragg, 69 Ark. 402: Braun v. Craven, 175 111. 401 
(semble); Kansas Co. v. Dalton, 65 Kan. 661; Morse v. Chesapeake Co., 117 Ky. 
11; Reed v. Ford, 129 Ky. 471; White v. Sander, 168 Mass. 296: Smith v. Postal 
Co., 174 Mass. 576; Homans v. Boston Co., 180 Mass. 456 {senwle); Cameron v. 
N. E. Co., 182 Mass. 310 (aemble); Nelson v. Crawford, 122 Mich. 466; Crutcher 
V. Cleveland Co., 132 Mo. App. 311; Deming v. Chicago Co., 80 Mo. App. 152; 
Rawlings v. Wabash Co., 97 Mo. App. 515; Ward v. West Co., 65 N. J. Law, 383; 
Porter v. Del. Co., 73 N. J. Law, 405 (semble); Mitchell v. Rochester Co., 151 
N. Y. 107; Newton v. N. Y. Co., 106 App. Div. 415 (semble); Prince v. Ridge, 32 
Misc. 666. 667 {semhle): Hutchinson v. Stem, 115 App. Div. 791: Miller v. Belt 
Co., 78 Ohio St. 309; Ewing v. Pittsburdi Co., 147 Pa. St. 40; Lmn r.Duquesne 
Co., 204 Pa. St. 551; Huston v. Freemansburg, 212 Pa. St. 548; Hess v. American 
Pipe Co., 221 Pa. St. 67; Morris v. Lackawana R. Co., 228 Pa. St. 198; Taylor v. 
Atlantic Co., 78 S. C. 552; Ford v. Schliessman, 107 Wis. 479, 483 (semble) Accord. 

The damages for an admitted tort to the person may be enhanced by proof of 
nervous shock caused by fright induced by the defendant's misconduct. Eagan v. 



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60 DULIEU V. WHITE AND SONS [CHAP. II. 

I DULIEU V. WHITE AND SONS 

KifiG's Bench Division, June 6, 1901. 
Reported in [1901] 2 King*8 Bench, 669. 

Point of law raised by pleadings.* 

The statement of claim was as follows: — 

" 1. The plaintiff is the wife of Arthur David Dulieu, who carries 
on the business of a licensed victualler at the Bonner Aims, Bonner 
Street, Bethnal Green, in the county of London. 

" 2. On July 20, 1900, the plaintiff was behind the bar of her hus- 
band's said public-house, she being then pregnant, when the defend- 
ants by their servant so negligently drove a pair-horse van as to drive 
it into the said public-house. 

Middlesex R. Co., 212 Fed. 562, 214 Fed. 747; Birmingham Co. v. Martini, 2 Ala. 
App. 653; Melone v. Sierra Co., 151 Cal. 113; Seger v. Barkhamsted, 22 Conn. 
290; Masters v. Warren, 27 Conn. 293; Garvey v. Metropolitan R. Co., 155 111. 
App. 601; Pittsburgh Co. v. Sponier, 85 Ind. 165; McClintic v. Bckman, 153 Ky. 
704: Newport Co. v. Gholson, 10 Ky. L. Rep. 938; City Co. v. Robinson, 12 Ky. 
L. Rep. 555; Green v. Shoemaker, 111 Md. 69; Warren v, Boston Co., 163 Mass. 
484; Homans v. Boston Co., 180 Mass. 456; Cameron v. N. E. Co., 182 Mass. 310; 
DriscoU V. Gaflfey, 207 Mass. 102; Conlev v. United Drug Co., 218 Mass. 238; 
Smith t;. St. Paul Co., 30 Minn. 169; Holfingshed v. Yazoo R. Co., 99 Miss. 464; 
Butts V, Nat. Bank, 99 Mo. App. 168; Breen v. St. Louis Co., 102 Mo. App. 479; 
Heiberger v, Missouri Tel. Co., 133 Mo. App. 452; Lowe v. Metropolitan K. Co., 
145 Mo. App. 248; Buchanan t>. West Co., 52 N. J. Law, 265; Consol. Co. v. 
Lambertson, 59 N. J. Law, 297: Stokes ». Schlacter, 66 N. J. Law, 334; Porter v. 
Del. Co., 73 N. J. Law, 405; Kennell v. Gershonovitz, 84 N. J. Law, 577; O'Fla- 
herty v, Nassau Co., 34 App. Div. 74 (affirmed 165 N. Y. 624); CoKn v. Ansonia 
Co.. 162 App. Div. 791; Pa. Co. t;. Graham, 63 Pa. St. 290; Scott v. Montgomery, 
95 Pa. St. 444; Ewing v. Pittsburgh Co., 147 Pa. St. 40 (semble); Linn v. Du- 
quesne Co., 204 Pa. St. 551 (semble); Samarra v, Allegheny R. Co., 238 Pa. St. 
469; Folk v. Seaboard Co., 99 S. C. 284; Godeau v. Blood, 52 Vt. 251; Nordgren 
V. liwrence, 74 Wash. 305; Shutz v. Chicago Co.^ 73 Wis. 147; and even though 
the admitted tort is only an assault as distinguished from a battery. Kline v. 
Kline, 158 Ind. 602; Williams v. Underbill, 63 App. Div. 223; Leach v. Leach, 11 
Tex. Civ. App. 699. It must be shown that there was causal connection between 
the fridit and the shock. Hack r. Dady, 142 ^p. Div. 510. 

In Homans v. Boston Co., supra, the court said, through Holmes, C. J.: " As 
has been explained repeatedly, it is an arbitrary exception, based upon a notion of 
what is practicable, that prevents a recovery for visible illness resulting from 
nervous shock ^one. Spade v. Lynn Co.; Smith v. Postal Co., 174 Mass. 576. 
But when there has been a battery and the nervous shock results from the same 
wrongful management as the battery, it is at least equally impracticable to go 
further and to inquire whether the shock comes through the battery or along with 
it. Even were it otherwise, recognizing as we must the logic in favor of the plain- 
tiff when a remedy is denied because the only immediate wrong was a shock to the 
nerves, we think that when the reality of the cause is guaranteed by proof of a sub- 
stantial battery of the person there is no occasion to press further the exception to 
general rules." See also Spade v. Lynn Co., 172 Mass. 690, per Holmes, C. J. 

Liability for frightening an Animal to Death. The doctrine of the principal case 
was carried so far in Lee v. Burlington, 113 la., 356, that no recovery was allowed 
for the death of a horse from fright caused by the careless conduct of the defend- 
ant. But the opposite view prevailed in Louisville R. Co. v. Melton, 158 Ala. 509, 
and Conklin v. Thompson, 29 Barb. 218. 

^ Portions of the statement of facts have been omitted. 



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SECT. II.] DULIEU V. WHITE AND SONS 51 

" 3. The defendants were also negligent in entrusting the driving 
of the said horses and van to their said servant, who had no knowl- 
edge or skill in driving. 

" 4. The plaintiff in consequence sustained a severe shock, and was 
and is seriously ill, and on September 29, 1900, gave premature birth 
to a child. 

'' 5. In consequence of the shock sustained by the plaintiff the said 
child was bom an idiot. 

" The plaintiff claims damages in respect of the aforesaid matters." 

The statement of defence, after denying the allegations contained 
in the statement of claim proceeded: — 

" 3. The defendants submit as a matter of law that the damages 
sought to be recovered herein are too remote, and that the statement 
of claim on the face thereof discloses no cause of action." 

Cur. adv. vuU. 

Kennedy, J. In this case the only question for the judgment of the 
court is in the nature of a demurrer. 



The head of damage alleged in paragraph 5 was rightly treated by 
the plaintiff's counsel as untenable. 

Ilie defendant's counsel summed up his contention against the 
legal vaUdity of the plaintiff's claim in the statement that no action 
for negligence will he where there is no immediate physical injury 
resulting to the plaintiff. 

This is an action on the case for negligence — that is to say, for 
a breach on the part of the defendant's servant of the duty to use 
reasonable and proper care iand skill in the management of the de- 
fendant's van. In order to succeed, the plaintiff has to prove resulting 
damage to herself and ** a natural and continuous sequence uninter- 
ruptedly connecting the breach of duty with the damage as cause and 
effect." Shearman and Redfield, Negligence, cited in Beven, Negli- 
gence in Law, 2d ed. p. 7. In regard to the existence of the duty here, 
there can, I think, be no question. The driver of a van and horses in 
a highway owes a duty to use reasonable and proper care and skill so 
as not to injure either persons lawfully using the Wghway, or property 
adjoining the highway, or persons who, like the plaintiff are lawfully 
occup3ang that property. His legal duty towards all appears to me 
to be practically identical in character and in degree. I understood 
the plaintiff's counsel to suggest that there might exist a higher degree 
of duty towards the plaintiff sitting in a house than would have existed 
had she been in the street. I am not satisfied that this is so. The 
wa3rfarer in the street, as it seems to me, has in law as much right of 
redress if he is injured in person or in property by the negligence of 
another as the man who is lawfully sitting on a side-wall or in an 
adjoining house. " The whole law of negligence assumes the principle 



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52 DULIEU V. WHITE AND SONS [CHAP. II. 

of ' Volenti non fit injuria ' not to be applicable," for reasons which 
Si^ Frederick Pollock points out (The Law of Torts, by Sir F. Pollock, 
6th ed. pp. 166, 167), in a passage which follows the quotation which 
I have just made. The legal obligations of the driver of horses are the 
same, I think, towards the man indoors as to the man out of doors; 
the only question here is whether therq is an actionable breach of those 
obligations if the man in either case is made ill in body by such 
negligent driving as does not break his ribs but shocks his nerves. 

Before proceeding to consider the objections to the maintenance of 
such a claim as that of the present plaintiff, it is, I think, desirable for 
clearness' sake to see exactly what are the facts which ought to be 
assumed for the purposes of the argument. We must assume in her 
favor all that can be assumed consistently with the allegations of the 
statement of claim. We must, therefore, take it as proved that the 
negligent driving of the defendants' servant reasonably and naturally 
caused a nervous or mental shock to the plaintiff by her reasonable 
apprehension of immediate bodily hurt, and that the premature child- 
birth, with the physical pain and suffering which accompanied it, was 
a natural and a direct consequence of the shock. I may just say in 
passing that I use the words " nervous " and " mental " as inter- 
changeable epithets on the authority of the judgment of the Privy 
Coimcil in Victorian Railways Commissioners v. Coultas, 13 App. Cas. 
222; but I venture to think " nervous " is probably the more correct 
epithet where terror operates through parts of the physical organism 
to produce bodily illness as in the present case. The use of the epithet 
" mental '' requires caution, in view of the undoubted rule that merely 
mental pain unaccompanied by any injury to the person cannot 
sustain an action of this kind. Beven, Negligence in Law, 2d ed. p. 77. 

Now, these being the assumed facts, what are the defendants' 
arguments against the plaintiff's right to recover damages in this 
action ? 

First of all, it is argued, fright caused by negligence is not in itself 
a cause of action — ergo, none of its consequences can give a cause of 
action. In Mitchell v. Rochester Ry. Co., (1896) 151 N. Y. 107, the 
point is put thus: " That the result may be nervous disease, blind- 
ness, insanity, or even a miscarriage, in no way changes the principle. 
These results merely show the degree of fright or the extent of the 
damages. The right of action must still depend upon the question 
whether a recovery may be had for fright." With all respect to the 
learned judges who have so held, I feel a difficulty in following this 
reasoning. No doubt damage is an essential element in a right of 
action for negligence. I cannot successfully sue him who has failed 
in his duty of using reasonable skill and care towards me imless I can 
prove some material and measurable damage. If his negligence has 
caused me neither injury to property nor physical mischief, but only 
an unpleasant emotion of more or less transient duration, an essential 



\ 



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SECT. II.] DULIEU V. WHITE AND SONS 53 

constituent of a right of action for negligence is lacking. " Fear," as 
Sir Frederick Pollock has stated (The Law of Torts, 6th ed. p. 51), 
'' taken alone falls short of being actual damage not because it is a 
remote or unlikely consequence, but because it can be proved and 
measured only by physical eflfects." It may, I conceive, be truly said 
that, viewed in relation to an action for ne^gence, direct bodily im- 
pact is, without resulting damage, as insufficient a ground of legal 
claim as the infliction of fright. That fright — where physical injury 
is directly produced by it — cannot be a groimd of action merely 
because of the absence of any accompanying impact appears to me to 
be a contention both unreasonable and contrary to the weight of 
authority. 

[The learned judge then cited cases in which an action was held to 
lie, where the only physical impact did not accompany but was a 
consequence of the fright; also a case where there was nothing in the 
nature of impact and yet recovery was allowed.] 

If impact be not necessary, and if, as must be assumed here, the 
fear is proved to have naturally and directly produced physical effects, 
so that the ill results of the negligence which caused the fear are as 
measurable in damages as the same results would be if they arose 
from an actual impact, why should not an action for those damages 
lie just as well as it lies where there has been an actual impact ? It is 
not, however, to be taken that in my view every nervous shock occa- 
sioned by negligence and producing physical injury to the sufferer 
gives a cause of action. There is, I am inclined to think, at least one 
limitation. The shock, where it operates through the mind, must be 
a shock which arises from a reasonable fear of immediate personal 
•injury to oneself. A. has, I conceive, no legal duty not to shock B.'s 
nerves by the exhibition of negligence towards C., or towards the 
property of B. or C. The limitation was applied by Wright and 
Bruce, JJ., in the imreported case of Smith v. Johnson & CJo., referred 
to by Wright, J., at the close of his judgment in Wilkinson v. Down- 
ton, [1897] 2 Q. B. 57, at p. 61. In Smith v. Johnson & Co. (unre- 
ported), a man was killed by the defendant's negligence in the sight 
of the plaintiff, and the plaintiff became ill, not from the shock pro- 
duced by fear of harm to himself, but from the shock of seeing another 
person killed. The court held that this harm was too remote a con- 
sequence of the negligence.^ I should m3rself , as I have already indi- 

* See to the same effect Phillips v. Dickerson, 85 111. 11; Cleveland Co. v. 
Stewart, 24 Ind. App. 374: Gaskins v. Runkle, 25 Ind. App. 584; Mahoney v. 
Dankwart, 108 la. 321; McGee v. Vanover, 148 Ky. 737; Chesapeake R. Co. v. 
Robinett, 151 Ky. 778; Sperier v. Ott, 116 La. 1087; Renner v. Canfield, 36 Minn. 
90; Bucknam v. Great Northern R. Co., 76 Minn. 373; Sanderson v. Great North- 
em R. Co., 88 Minn. 162; Hutchinson v. Stem, 115 App. Div. 791; Gosa v. 
Southern Ry., 67 S. C. 347; Gulf R. Co. v. Overton, 101 Tex. 583 (but compare 
Gulf R. Co. V. Coopwood, 16 Tex. Ct. Rep. 354); Taylor v. Spokane R. Co., 72 
Wash. 378, rev'g 67 Wash. 96. f ^ j t^ 



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54 DULIEU V. WHITE AND SONS [CHAP. II. 

cated, have been inclined to go a step further, and to hold upon the 
facts in Smith v. Johnson & Co. that, as the defendant neither in- 
tended to afifect the plaintiff injuriously nor did an3rthing which could 
reasonably or naturally be expected to aflfect him injuriously, there 
was no evidence of any breach of legal duty towards the plaintiff or in 
regard to him of that absence of care according to the circumstances 
which Willes, J., in Vaughan v. Taff Vale Ry. Co., (1860) 6 H. &. N. 
679, at p. 688, gave as a definition of negligence. 

In order to illustrate my meaning in the concrete, I say that I 
should not be prepared in the present case to hold that the plaintiff 
was entitled to maintain this action if the nervous shock was pro- 
duced, not by the fear of bodily injury to herself, but by horror or 
vexation arising from the sight of mischief being threatened or done 
either to some other person, or to her own or her husband's property, 
by the intrusion of the defendants' van and horses. The cause of the 
nervous shock is one of the things which the jury will have to deter- 
mine at the trial. 

It remains to consider the second and somewhat different form in 
which the defendants' counsel put his objection to the right of the 
plaintiff to maintain this action. He contended that the damages are 
too remote, and reUed much upon the decision of the Privy Coimcil 
in Victorian Railways Commissioners v. Coultas, 13 App. Cas. 222. 



The principal ground of their judgment is formulated in the follow- 
ing sentence: " Damages arising from mere sudden terror unaccom- 
panied by any actual phjrsical injury, but occasioning a nervous or * 
mental diock, cannot under such circumstances, their Lordships 
think, be considered a consequence which, in the ordinary course of 
things, would flow from the negligence of the gate-keeper." 

Why is the accompaniment of physical injury essential ? For my 
own part, I should not like to assume it to be scientifically true that 
a nervous shock which causes serious bodily illness is not actually 
accompanied by physical injury, although it may be impossible, or at 
least difficult, to detect the injury at the time in the living subject. 
I should not be surprised if the surgeon or the physiologist told us 
that nervous shock is or may be in itself an injurious affection of the 
physical organism. Let it be assumed, however, that the physical 
injury follows the shock, but that the jury are satisfied upon proper 
and sufficient medical evidence that it follows the shock as its direct 
and natural effect, is there any legal reason for saying that the damage 
is less proximate in the legal sense than damage which arises contem- 
poraneously ? " As well might it be said " (I am quoting from the 
judgment of Palles, C. B., 26 L. R. Ir. at p. 439) " that a death caused 



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SECT. II.] DULIEU V. WHITE AND SONS 55 

by poison is not to be attributed to the person who administered it 
because the mortal effect is not produced contemporaneously with its 
administration.'' Remoteness as a legal ground for the exclusion of 
damage in an action of tort means, not severance in point of time, but 
the absence of direct and natural causal sequence — the inability to 
trace in regard to the damage the " propter hoc " in a necessary or 
natural descent from the wrongful act. As a matter of experience, I 
should say that the injury to health which forms the main ground of 
damages in actions of negligence, eitheif in cases of railway accidents 
or in running-down cases, frequently is proved, not as a concomitant 
of the occurrence, but as one of the sequels. 



[As to Mitchell v. Rochester Ry. Co., 151 N. Y. 107, cited by defend- 
ant.] Shortly, the facts there were that the plaintiff, whilst waiting 
for a tram-car, was nearly run over by the negligent management of 
the defendant's servant of a car drawn by a pair of horses, and owing 
to terror so caused fainted, lost consciousness, and subsequently had 
a miscarriage and consequent illness. 



It may be admitted that the plaintiff in this American case would 
not have suffered exactly as she did, and probably not to the same 
extent as she did, if she had not been pregnant at the time; and no 
doubt the driver of the defendant's horses could not anticipate that 
she was in this condition. But what does that fact matter ? If a man 
is negligently run over or otherwise negligently injured in his body, 
it is no answer to the sufferer's claim for damages that he would have 
suffered less injury, or no injury at all, if he had not had an imusually 
thin skull or an unusually weak heart. 

[After commenting on the opinion in Spade v, Lynn & Boston R. R., 
168 Mass. 285.] 

Naturally one is diflfident of one's opinion when one finds that it is 
not in accord with those which have been expressed by such judicial 
authorities as those to which I have just referred. But certainly, if, 
as is admitted, and I think justly admitted, by the Massachusetts 
judgment, a claim for damages for physical injuries naturally and 
directly resulting from nervous shock which is due to the negligence 
of another in causing fear of immediate bodily hurt is in principle not 
too remote to be recoverable in law, I should be sorry to adopt a rule 
which would bar all such claims on grounds of policy alone, and in 
order to prevent the possible success of unrighteous or groundless 
actions. Such a course involves the denial of redress in meritorious 
cases, and it necessarily implies a certain degree of distrust, which I 
do not share, in the capacity of legal tribunals to get at the truth in 
this class of claims. My experience gives me no reason to suppose 
that a jury would really have more difficulty in weighing the medical 
evidence as to the effects of nervous shock through fright, than in 



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56 DULIEU V. WHITE AND SONS [CHAP. II. 

weighing the like evidence as to the effects of nervous shock through 
a railway collision or a carriage accident, where, as often happens, no 
palpable injury, or very slight palpable injury, has been occasioned 
at the time. 

I have now, I think, dealt with the authorities and the arguments 
upon which the defendants rely, and I have done go at greater length 
than I should have wished to do but for the general interest of the 
points involved and the difficulties which the conflict of authorities 
undoubtedly present. In this conflict I prefer, as I have already in- 
dicated, the two decisions of the Irish courts. They seem to me to 
constitute strong and clear authorities for the plaintiff's contention. 
It was suggested on the part of the defendants that the appUcability 
of the judgment in Bell v. Great Northern Company of Ireland, 26 
L. R. Ir. 428, is affected by the fact that the female in that action was 
a passenger on the defendant's railway, and as such had contractual 
rights. It appears to me that in the circumstances this fact can make 
no practical difference whatever. In the Irish case there was no special 
contract, no notice to the railway company, when they accepted her 
as a passenger, that she was particularly delicate, or peculiarly ner- 
vous or liable to fright. The contractual duty existed, as it often does 
exist, concurrently with the duty apa^ from contract; but the one is 
in such circumstances practically coextensive with the other in the 
rights which it gives and the corresponding UabiUties which it imposes. 

I hold that, if on the trial of this action the jury find the issues left 
to them as the jury foimd them in Bell v. Great Northern Railway 
Company of Ireland, 26 L. R. Ir. 428, after the direction of Andrews, 
J., which was approved by the Exchequer Division, the plaintiff will 
have made out a good cause of action. 

Phillimore, J. 



I think there may be cases in which A. owes a duty to B. not to 
inflict a mental shock on him or her, and that in such a case, if A. does 
inflict such a shock upon B. — as by terrifying B. — and physical 
damage thereby ensues, B. may have an action for the physical 
damage, though the medium through which it has been inflicted is 
the mind. 

I think there is some assistance to be got from the cases where fear 
of impending danger has induced a passenger to take means of escape 
which have in the result proved injurious to him, and where the carrier 
has been held Uable for these injuries, as in Jones v, Boyce, 1 Stark. 
493. 



[The learned judge thought it possible that he might have come to 
the same conclusion as that arrived at in Victorian Railways Commis- 



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SECT. II.] DULIEU V. WHITE AND SONS 57 

sioners v. Coultas, though not for the reasons which have prominence 
in the judgment. He also thought that he should have come to the 
same decision as the Massachusetts court in Spade v, Lynn & Boston 
R. R.; but that he should not have expressed it in such broad and 
sweeping language.] 



In the case before us the plaintiff, a pregnant woman, was in her 
house. It is said that she was not the tenant in possession and could 
not TnaintAJn trespass quare dausum fregit if this had been a direct 
act of the defendant and not of his servant (as it was). This is true: 
her husband was in possession. But none the less it was her home, 
where she had a right, and on some occasions a duty, to be; and it 
seems to me that if the tenant himself could maintain an action, his 
wife or child could do likewise. It is averred that by reason of the 
careless driving of the defendants' servant a pair-horse van came some 
way into the room, and so frightened her that serious physical con- 
sequences thereby befell her. If these averments be proved, I think 
that there was a breach of duty to her for which she can have dam- 
ages. The diflBculty in these cases is to my mind not one as to the 
remoteness of the damage, but as to the uncertainty of there being 
any duty. Once get the duty and the physical damage following on 
the breach of duty, and I hold that the fact of one link in the chain of 
causation being mental only makes no difference. The learned counsel 
for the plaintiff has put it that every link is physical in the narrow 
sense. That may be or may not be. For mjrself , it is unimportant. 



Judgment far plaintiff.^ 

* Pullman Co. v. Lutz, 154 Ala. 517; Spearman v. McCrary, 4 Ala. App. 473; 
Sloane v. So. Co., Ill Cal. 668; Watson v. Dilte. 116 la. 249; Cowan v. Tel. Co., 
122 la. 379. 382 (sembk); Purcell v. St. Paul Co., 48 Minn. 134, 138; Lesch v. 
Great Northern R. Co., 97 Minn. 503; Watkina v. Kaolin Co., 131 N. C. 536; 
Taber v. Seaboard Co., 81 S. C. 317: Simone v. R. I. Co.. 28 R. I. 186; Mack v. 
South Co.. 52 S. C. 323; Hill t;. Kimball, 76 Tex. 210; Gulf Co. v. Hayter, 93 Tex. 
239: Yoakimi v. Kroeger, (Tex. Civ. App.) 27 S. W. 953; St. Louis Co. v. Mur- 
dock, 54 Tex. Civ. App. 249; Pankopft;. Hinkley, 141 Wis. 146; Fitzpatrick v, 
Gr. W. Co., 12 Up. Can. a B. 645; Bell v. Great Northern R. Co., 26 L. R. Ir. 
428: Cooper v. Caledonia Co. (Court of Sess., June 14, 1902), 4. F. 880 Accord. 

See Bohlen, Right to Recover for Injury Resulting from Ne^genoe without 
Impact, 41 Am. L. Reg. & Rev. 141. 

Menial Anguish caused by Negligence in Trantmission of Telegrams. In a few 
states the addressee is allowed to recover damages for mental anguish resulting 
from the negUgent failiure of a telegraph company to make seasonable delivery of 
a message. Mentzer v. Western Co., 93 la. 752; Cowan v. Western Co., 122 la. 
379; Hurlburt v. Western Co., 123 la. 295; Chapman v. Western Co., 90 Ky. 265; 
Western Co. v. Van Cleave, 107 Ky. 464; Western Co. v. Fisher, 107 Ky. 513; 
Graham v. Western Co^ 109 La. 1069; Barnes v. Western Co., 27 Nev. 438 
(semble); Thompson v. Western Co., 106 N. C. 649; Young v. Western Co., 107 
N. C. 370; Bryan v. Western Co., 133 N. C. 603; Woods v. Western Co., 148 N. C. 
1 ; Hellams v. Western Co., 70 S. C. 83 {statutory): Capers v. Western Co., 71 S. C. 
29; Wadsworth v. Western Co., 86 Tenn. 695; Raiht)ad v. Griflfin, 92 Tenn. 694; 



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58 WILKINSON V. DOWNTON [CHAP. II. 

WILKINSON V. DOWNTON 

Queen's Bench Division, May 8, 1897. 

Law Reports, [1897] 2 Queen's Bench, 57. 

Wright, J.* In this case the defendant, in the execution of what 
he seems to have regarded as a practical joke, represented to the plain- 
tiff that he was charged by her husband with a message to her to the 
effect that her husband was smashed up in an accident, and was lying 
at The Elms at Leytonstone with both legs broken, and that she was 
to go at once in a cab with two pillows to fetch him home. All this was 
false. The effect of the statement on the plaintiff was a violent shock 
to her nervous sytem, producing vomiting and other more serious and 
permanent physical consequences at one time threatening her reason, 
and entailing weeks of suffering and incapacity to her as well as ex- 
pense to her husband for medical attendance. These consequences 
were not in any way the result of previous ill-health or weakness of 
constitution; nor was there any evidence of predisposition to nervous 
shock or any other idiosyncrasy. 

In addition to these matters of substance there is a small claim for 
Is, lOJ^. for the cost of railway fares of persons sent by the plaintiff 
to Leytonstone in obedience to the pretended message. As to this 
1«. lOJ^. expended in railway fares on the faith of the defendant's 
statement, I think the case is clearly within the decision in Pasley v. 
Freeman, (1789) 3 T. R. 51. The statement was a misrepresentation 
intended to be acted on to the damage of the plaintiff. 

The real question is as to the lOOi., the greatest part of which is 
given as compensation for the female plaintiff's illness and suffering. 

So Relle v. Western Co., 55 Tex. 308; Stuart v. Western Co., 66 Tex. 580; Western 
Co. V. Beringer, 84 Tex. 38. 

But the weight pf authority is against such recovery. Chase v. Western Co., 44 
Fed. 554; Crawson v. Western Co., 47 Fed. 544; Tyler v. Western Co^ 64 Fed. 
634; Western Co. v. Wood, 57 Fed. 471; Gahan v, Westfem Co., 59 Fed. 433; 
Stansell v. Western Co., 107 Fed. 668; Western Co. v. Sklar, 126 Fed. 295; Rowan 
V. Western Co., 149 Fed. 550:Blount v. Western Co., 126 Ala. 105: Western Co. 
V. Krichbaum, 132 Ala. 535; Western Co. v. Blocker, 138 Ala. 484; Western Co. v. 
Waters, 139 Ala. 652; Peay v. Western Co., 64 Ark. 538 (but changed by statute, 
Western Co. v, McMullin, 98 Ark. 346); Russell v. Western Co., 3 Dak. 315; 
Intemat. Co. v. Saunders, 32 Fla. 434; Chapman v. Western Co., 88 Ga. 763; 
Giddens v. Western Co., Ill Ga. 824; Western Co. v. Haltom, 71 111. App. 63; 
Western Co. v. Ferguson, 157 Ind. 64 (overruling Reese v. Western Co., 123 Ind. 
294); West v. Western Co., 39 Kan. 93 (semble); Cole v. Gray, 70 Kan. 705; 
Francis v. Western Co., 58 Minn. 252; Western Co. v, Rogers, 68 Miss. 748; 
Duncan v. Western Co., 93 Miss. 500; Connell v. Western Co., 116 Mo. 34; New- 
man V. Western Co., 54 Mo. App. 434; Curtin v. Western Co., 13 App. Div. 253; 
Morton v. Western Co., 53 Ohio St. 431; Butner v. Western Co., 2 Okl. 234; 
Western Co. v. Chouteau, 28 Okl. 664; Lewis v. Western Co., 57 S. C. 325 flaw 
changed by statute in 1900, Capers v. Western Co^^71 S. C. 29); Connelly v. 
Western Co., 100 Va. 51; Corcoran v. Postal Co., 80 Wash. 570; Davis v. Western 
Co., 46 W. Va. 48; Summerfield v. Western Co., 87 Wis. 1; Koerber v. Patek, 
123 Wis. 453, 464 (semble). 

^ Only the judgment of the court is printed. 



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SECT, n.] WILKINSON V. DOWNTON 59 

It was argued for her that she is entitled to recover this as being dam- 
age caused by fraud, and therefore within the doctrine estabUshed by 
Pasley v. Freeman, (1789) 3 T. R. 51, and Langridge v. Levy, (1837) 
2 M. A W. 519. I am not sure that this would not be an extension of 
that doctrine, the real ground of which appears to be that a person 
who makes a false statement intended to be acted on must make good 
the damage naturally resulting from its being acted on. Here there is 
no injuria of that Idnd. I think, however, that the verdict may be 
supported upon another ground. The defendant has, as I assume for 
the moment, wilfully done an act calculated to cause physical harm 
to the plaintiff — that is to say, to infringe her legal right to personal 
safety, and has in fact thereby caused physical harm to her. That 
proposition without more appears to me to state a good cause of 
action, there being no justification alleged for the act. This wilful 
injuria is in law maUcious, although no malicious purpose to cause the 
harm which was caused nor any motive of spite is imputed to the 
defendant. 

It remains to consider whether the assumptions involved in the prop- 
osition are made out. One question is whether the defendant's act 
was so plainly calculated to produce some effect of the kind which was 
produced that an intention to produce it ought to be imputed to the 
defendant, regard being had to the fact that the effect was produced 
on a person proved to be in an ordinary state of health and mind. I 
think that it was. It is difficult to imagine that such a statement, 
made suddenly and with apparent seriousness, could fail to produce 
grave effects under the circumstances upon any but an exceptionally 
indifferent person, and therefore an intention to produce such an effect 
must be imputed, and it is no answer in law to say that more harm was 
done than was anticipated, for that is commonly the case with all 
wrongs. The other question is whether the effect was, to use the 
ordinary phrase, too remote to be in law regarded as a consequence 
for which the defendant is answerable. Apart from authority, I 
should give the same answer and on the same ground as the last ques- 
tion, and say that it was not too remote. Whether, as the majority 
of the House of Lords thought in Ljmch v. Knight, (1861) 9. H. L. C. 
577, at pp. 592, 596, the criterion is in asking what would be the 
natural effect on reasonable persons, or whether, as Lord Wensleydale 
thought (9 H. L- C. 587, at p. 600), the possible infirmities of human 
nature ought to be recognized, it seems to me that the connection 
between the cause and the effect is sufficiently close and complete. 
It is, however, necessary to consider two authorities which are sup- 
posed to have laid down that illness through mental shock is a too 
remote or unnatural consequence of an injuria to entitle the plaintiff 
to recover in a case where damage is a necessary part of the cause of 
action. One is the case of Victorian Railways Commissioners v. 
Coultas, 13 App. Cas. 222, where it was held in the Privy Coimcil 



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60 WILKINSON V. DOWNTON [CHAP. H. 

that illness which was the effect of shock caused by fright was too 
remote a consequence of a negligent act which caused the fright, there 
being no physical harm immediately caused. That decision was 
treated in the Court of Appeal in Pugh v, London, Brighton and South 
Coast Ry. Co., [1896] 2 Q. B. 248, as open to question. It is inconsist- 
ent with a decision in the Court of Appeal in Ireland: Bell v. Great 
Northern Ry. Co. of Ireland, (1890) 26 L. R. Ir. 428, where the Irish 
Exchequer Division refused to follow it; and it has been disapproved 
in the Supreme Court of New York; see Pollock on Torts, 4th ed. 
p. 47 (n). Nor is it altogether in point, for there was not in that case 
any element of wilful wrong; nor perhaps was the illness so direct and 
natural a consequence of the defendant's conduct as in this case. On 
these groimds it seems to me that the case of Victorian Railways Com- 
missioners V. Coultas, 13 App. Cas. 222, is not an authority on which 
this case ought to be decided. 

A more serious difficulty is the decision in Allsop v. Allsop, 5 H. & 
N. 634, which was approved by the House of Lords in Lynch v. 
Knight, 9 H. L. C. 677. In that case it was held by Pollock, C. B., 
Martin, Bramwell, and Wilde, BB., that illness caused by a slanderous 
imputation of imchastity in the case of a married woman did not con- 
stitute such special damage as would sustain an action for such a 
slander. That case, however, appears to have been decided on the 
groimd that in all the innimxerable actions for slander there were no 
precedents for alleging illness to be sufficient special damage, and that 
it would be of evil consequence to treat it as sufficient, because such 
a rule might lead to an infinity of trumpery or groimdless actions. 
Neither of these reasons is applicable to the present case. Nor could 
such a rule be adopted as of general application without results which 
it would be difficult or impossible to defend. Suppose that a person 
is in a precarious and dangerous condition, and another person tells 
him that his physician has said that he has but a day to live. In such 
a case, if death ensued from the shock caused by the false statement, 
I cannot doubt that at this day the case might be one of criminal 
homicide, or that if a serious aggravation of illness ensued damages 
might be recovered. I think, however, that it must be admitted that 
the present case is without precedent. Some English decisions — 
such as Jones v. Boyce, (1816) 1 Stark. 493; Wilkins v. Day, (1883) 12 
Q. B. D. 110; Harris v. Mobbs, (1878) 3 Ex. D. 268 — are cited in 
Beven on Negligence as inconsistent with the decision in Victorian 
Railways Commissioners v. Coultas, 13 App. Cas. 222. But I think 
that those cases are to be explained on a different groimd, namely, 
that the damage which immediately resulted from the act of the pas- 
senger or of the horse was really the result not of that act, but of a 
fright which rendered that act involimtary, and which therefore ought 
to be regarded as itself the direct and inunediate cause of the damage. 
In Smith v. Johnson & Co. (unreported), decided in January last, 



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SECT. II.] YATES V. SOUTH KIRKBY COLLIERIES 61 

Bruce, J., and I held that where a man was killed in the sight of the 
plaintiff by the defendant's negligence, and the plaintiff became ill, 
not from the shock from fear of harm to himself, but from the shock 
of seeing another person killed, this harm was too remote a conse- 
quence of the negligence. But that was a very different case from the 
present. 

There must be judgment for the plaintiff for lOOZ. Is. lOJ^. 

JvdgmenifoT plaintiff.^ 



YATES V. SOUTH KIRKBY COLLIERIES 

In the Court op Appeal, July 6, 1910. 

Reported in [1910] 2 King's Bench, 538. 

Appeal against the award of the judge of the coimty court of Ponte- 
fract sitting as arbitrator imder the Workmen's Compensation Act, 
1906. 

The question raised by this appeal was whether a nervous shock 
received by a workman in the course of his employment was an " ac- 
cident " which entitled him to compensation imder the Workmen's 
Compensation Act, 1906. The facts as found by the coimty court 
judge were as follows: — 

In October, 1909, the applicant, — a collier, forty-six years of age, 
who had been engaged in coal mining all his life, and for twenty- 
seven years had been working at the face of the coal in the pit belong- 
ing to the respondents, — while working as usual, heard a shout for 
help from the next working place. He ran aroimd his loose end at 
once and foimd a fellow colUer lying full length on the ground, having 
been knocked down by a fallen timber prop and some coal; he was 
bleeding all over his head and from his ears and eyes. The applicant 
picked him up in his arms and, with assistance, carried him away; he 
was not dead at the time, but died in a quarter of an hour. The effect 
on the applicant was such that he sustained a nervous shock, which 
incapacitated him from working at the coal face; he returned to his 
work on the Saturday, and at the order of the imder-manager on the 
Monday following, but on neither occasion was he able to do work, 

» Hall V. Jackson, 24 Col. App. 225; Dunn v. Western Co., 2 Ga.'App. 845; 
Goddard v. Walters, 14 Ga. App. 722 (semble); Watson v. Dilts. 116 la. 249, 124 
la. 249; Lonergan v. Small, 81 Kan. 48; Nelson v. Crawford, 122 Mich. 466 
(semble); Preiser v. Wielandt, 48 App. Div. 569; Buchanan v. Stout, 123 App. Div. 
648 (semble); Miller v. R. R. Co., 78 Ohio St. 309, 324 {semble); Butler v. Western 
Co., 62 S. C. 222 (semble); Western Co. v. Watson, 82 Miss. 101 (semble); Shella- 
barser v. Morris, 115 Mo. App. 566; Wilson v, St. Louis R. Co., 160 Mo. App. 649; 
HilTr. Kimball, 76 Tex. 210; Davidson v. Lee, (Tex. Civ. App.) 139 S. W. 904; 
Jeppsen v. Jensen, 47 Utah 536 Accord. 

Threats not amounting to an Assaxdl. Threats of bodily harm sent by letter and 
causing illness by reason of apprehension of bodily harm are grounds for an action. 
Houston V. WooUey, 37 Mo. App. 15; Grimes v. Gates, 47 Vt. 594. Compare Ste- 
vens p. Steadman, 140 Ga. 680; Degenhardt v. Heller, 93 Wis. 662. 



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62 YATES V. SOUTH KIRKBY COLLIERIES [CHAP. U. 

and after describing to the imder-manager and the Government in- 
spector on the Monday the details of what happened on the Saturday- 
he left the pit; he then consulted his doctor and has been imder his 
care since. In November he tried again to work, and went to his old 
place, but though he stayed the shift he was unable to work, and his 
brother, who was his mate, did it for him. In January, 1910, he asked 
the under-manager for a by-work job, but the imder-manager would 
not give him one, and he had not worked since. 

Proceedings for compensation having been taken, the coimty court 
judge found as a fact that there was a genuine incapacity to work 
which was due to the nervous shock which he sustained in October, 
1909, when it clearly was his duty to his employers to go to the as- 
sistance of the injured colUer who shouted for help from the next 
working place, and that his doing so arose both " in course of " and 
" out of " his employment. The learned coimty court judge accord- 
ingly awarded the applicant compensation at 19s. a week to the date 
of the award, and 10s. a week till further order. 

The respondents appealed.^ 

Fabwell, L. J. I am of the same opinion. It is rightly Conceded 
that it was part of the man's duty to go to the assistance of his fel- 
low workman. Therefore there is no question that the events arose 
" out of and in the course of the -employment." The learned coimty 
court judge has found as a fact that there was a genuine incapacity to 
work, which was due to the nervous shock which the applicant sus- 
tained in October last. In my opinion nervous shock due to accident 
which causes personal incapacity to work is as much " personal in- 
jury by accident " as a broken leg, for the reasons already expressed 
by this court in the case of Eaves v. Blaenclydach Colliery Co., [1909] 
2 K. B. 73. In truth I find it difficult, when the medical evidence is 
that as a fact a workman is suffering from a known complaint arising 
from nervous shock, to draw any distinction between that case and the 
case of a broken limb. I see no distinction for this purpose between 
the case of the guard who is not in fact physically injured by an acci- 
dent to his train, but who, after assisting to carry away the wounded 
and dead, breaks down from nervous shock, and the case of the guard 
who in similar circumstances stumbles over some of the debris and 
breaks his leg.^ The difficulty is to prove the facts so as to avoid the 
risk of malingering, but when the facts have been proved, the injury 
causing incapacity to work arises from the accident in the one case 
just as much as in the other. I am, therefore, of opinion that the 
judgment of the learned coimty court judge must be affirmed. 

* The opinion of Cozens-Hardy, M.R., sustaining the award is omitted. 

* " On principle, the distinction between cases of physical impact or lesion being 
necessary as a ground of liability for damage caused seems to nave nothing in its 
favour — always on the footing that the causal connection between the injury and 
the occurrence is established. If compensation is to be recovered under the statute 
or at common law in respect of an occurrence which has caused dislocation of a 
limb, on what principle can it be denied if the same occurrence has caused unhing- 



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SECT. III.] VAUGHAN V. MENLOVE 63 

Kennedy, L. J. I am of the saane opinion. It is beyond question 
that the incapacity of the applicant has arisen in the course of and out 
of the employment; and when you have a finding of fact by the learned 
county court judge that there has been a nervous shock, and that 
that nervous shock has produced a genuine condition of neurasthenia, 
I think myself the recent authorities show that this judgment ought 
to be supported. One knows perfectly well that neurasthenia, although 
there may be no outward sign if you merely look at the person, is 
treated, and successfully treated in some cases at any rate, by a treat-' 
ment of the body. Directly you have that which requires treatment 
of the body, it means that a portion of that body (visible or invisible 
does not matter) is in a state of ill-health, and, if the condition of 
neurasthenia produces incapacity to work which has been brought 
about by something in the nature of an accident which arose " out of 
and in the course of the emplojnnent," you have a case of " personal 
injury by accident " which is within the Act. Appeal dismissed. 



Section III 
The Staitoard op Cabe 

VAUGHAN V. MENLOVE 

In the Common Pleas, Januaby 23, 1837. 

Reported in 3 Bingham's New CaseSf 468. 

The declaration alleged, in substance, that plaintiff was the owner 
of two cottages; that defendant owned land near to the said cottages; 
that defendant had a rick or stack of hay near the boimdary of his 
land which was liable and likely to ignite, and thereby was dangerous 
to the plaintiff's cottages; that the defendant, well knowing the 
premises, wrongfully and negUgently kept and continued the rick in 
the aforesaid dangerous condition; that the rick did ignite, and that 
plaintiff's cottages were burned by fire commimicated from the rick 
or from certain buildings of defendant's which were set on fire by 
flames from the rick. 

Defendant pleaded the general issue; and also several special pleas, 
denying negligence. 

ing of the mind ? The personal injury in the latter case may be infinitely graver 
than in the fonner, and to what avail — in the incidence of justice, or the principle 
of law — is it to say that there is a distinction between things physical and 
mental ? This is the broadest difference of all, and it carries with it no principle of 
legal distinction. Indeed it may be suggested that the proposition that injury so 
produced to the mind is unaccompanied by physical affection or change might 
Itself be met by modem physiology or pathology with instant challenge." Lord 
Shaw in Coyle v. Watson, [1915] A. C. 1, 14. 



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64 VAUGHAN V. MENLOVE [CHAP. II. 

At the trial it appeared that the rick in question had been made by 
the defendant near the boundary of his own premises; that the hay 
was in such a state when put together, as to give rise to discussions 
on the probabiUty of fire; that though there were conflicting opinions 
on the subject, yet during a period of five weeks the defendant was 
repeatedly warned of his peril; that his stock was insured; and that 
upon one occasion, being advised to take the rick down to avoid all 
danger, he said " he would chance it." He made an apertm^ or chim- 
' ney through the rick; but in spite, or perhaps in consequence of this 
precaution, the rick at length burst into flames from the spontaneous 
heating of its materials; the flames communicated to the defendant's 
bam and stables, and thence to the plaintiff's cottages, which were 
entirely destroyed. 

Patteson, J., before whom the cause was tried, told the jury that 
the question for them to consider was, whether the fire had been occa- 
sioned by gross negUgence on the part of the defendant; adding, that 
he was bound to proceed with such reasonable caution as a prudent 
man would have exercised imder such circumstances. 

A verdict having been found for the plaintiff, a rule nisi for a new 
trial was obtained, on the ground that the jury should have been di- 
rected to consider, not whether the defendant had been guilty of a 
gross negligence with reference to the standard of ordinary prudence, 
a standard too uncertain to afford any criterion, but whether he had 
acted bond fide to the best of his judgment; if he had, he ought not 
to be responsible for the misf ortime of not possessing the highest order 
of intelligence. The action under such circumstances was of the first 
impression.^ 

Tcdfourd, Serjt., and Whately, showed cause. 

The pleas having expressly raised issues on the negligence of the 
defendant, the learned judge could not do otherwise than leave that 
question to the jury. The declaration alleges that the defendant 
knew of the dangerous state of the rick, and yet negligently and im- 
properly allowed it to stand. The plea of not guilty, therefore, puts 
in issue the scienter, it being of the substance of the issue: Thottias v. 
Morgan, 2 Cr. M. & R. 496. And the action, though new in specie, 
is founded on a principle fully established, that a man must so use his 
own property as not to injure that of others. On the same circuit a 
defendant was sued a few years ago for burning weeds so near the 
extremity of his own land as to set fire to and destroy his neighbors' 
wood. The plaintiff recovered damages, and no motion was made to 
set aside the verdict. Then, there were no means of estimating the 
defendant's negligence, except by taking as a standard the conduct 
of a man of ordinary prudence: that has been the rule always laid 
down, and there is no other that would not be open to much greater 
uncertainties. 

1 Statement abridged. 



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SECT. III.] VAUGHAN V. MENLOVE 65 

R. V. Richards, in support of the rule. 

First, there was no duty imposed on the defendant, as there is on 
carriers or other bailees, under an implied contract, to be responsible 
for the exercise of any given degree of prudence: the defendant had 
a right to place his stack as near to the extremity of his own land as 
he pleased, Wyatt v. Harrison, 3 B. & Adol. 871: imder that right, 
and subject to no contract, he can only be called on to act bond fide to 
the best of his judgment; if he has done that, it is a contradiction in 
terms, to inquire whether or not he has been guilty of gross negligence. 
At all events what would have been gross negUgence ought to be esti- 
mated by the faculties of the individual, and not by those of other 
men. The measure of prudence varies so with the varying faculties 
of men, that it is inapossible to say what is gross negligence with refer- 
ence to the standard of what is called ordinary prudence. In Crook v. 
Jadis, 5 B. & Adol. 910, Patteson, J., says, " I never could imderstand 
what is meant by parties taking a bill under circumstances which 
ought to have excited the suspicion of a prudent man; " and Taunton, 
J., " I cannot estimate the degree of care which a prudent man should 
take." . . . 

TiNDAL, C. J. I agree that this is a case primoe impressionis; but 
I feel no difficulty in applying to it the piinciples of law as laid down 
in other cases of a similar kind. Undoubtedly this is not a case of 
contract, such as a bailment or the like, where the bailee is responsible 
in consequence of the remuneration he is to receive: but there is a 
rule of law which says you must so enjoy your own property as not 
to injure that of another; and according to that rule the defendant is 
liable for the consequence of his own neglect: and though the defend- 
ant did not himself light the fire, yet mediately he is as much the cause 
of it as if he had hiaaself put a candle to the rick; for it is well known 
that hay will ferment and take fire if it be not carefully stacked. It 
has been decided that if an occupier bums weeds so near the boundary 
of his own land that damage ensues to the property of his neighbor, he 
is liable to an action for the amount of injury done, unless the accident 
were occasioned by a sudden blast which he could not foresee. Tur- 
berville v. Stamp, 1 Salk. 13. But put the case of a chemist making 
experiments with ingredients, singly innocent, but when combined 
liable to ignite; if he leaves them together, and injury is thereby 
occasioned to the property of his neighbor, can any one doubt that an 
action on the case would lie ? 

It is contended, however, that the learned judge was wrong in leav- 
ing this to the jury as a case of gross negligence, and that the question 
of negligence was so mixed up with reference to what would be the 
conduct of a man of ordinary prudence that the jury might have 
thought the latter the rule by which they were to decide; that such a 
rule would be too uncertain to act upon; and that the question ought 
to have been whether the defendant had acted honestly and bond fide 



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66 VAUGHAN V. MENLOVE [CHAP. II. 

to the best of his own judgment. That, however, would leave so vague 
a line as to afford no rule at all, the degree of judgment belonging to 
each individual being infinitely various: ^d though it has been iu*ged 
that the care which a prudent man would take, is not an intelligible 
proposition as a rule of law, yet such has always been the rule adopted 
in cases of bailment, as laid down in Coggs v. Bernard, 2 Ld. Raym. 
909. Though in some cases a greater degree of care is exacted than in 
others, yet in " the second sort of bailment, viz., cammodatum or lend- 
ing gratis, the borrower is boimd to the strictest care and diligence to 
keep the goods so as to restore them back again to the lender; because 
the bailee has a benefit by the use of them, so as if the baUee be guilty 
of the least neglect he will be answerable; as if a man should lend 
another a horse to go westward, or for a month; if the bailee put this 
horse in his stable, and he were stolen from thence, the baUee ^aU not 
be answerable for him; but if he or his servant leave the house or 
stable doors open, and the thieves take the opportimity of that, and 
steal the horse, he will be chargeable, because the neglect gave the 
thieves the occasion to steal the horse." The care taken by a prudent 
man has always been the rule laid down; and as to the supposed diffi- 
culty of applying it, a jury has always been able to say, whether, 
taking that rule as their guide, there has been negligence on the 
occasion in question. 

Instead, therefore, of saying that the Uability for negligence should 
be coextensive with the judgment of each individual, which would be 
as variable as the length of the foot of each individual, we ought rather 
to adhere to the rule, which requires in all cases a regard to caution 
such as a man of ordinary prudence would observe.^ That was in sub- 
stance the criterion presented to the jury in this case, and therefore 
the present rule must be discharged. 

[Concurring opinions were deUvered by Park, and Vaughan, JJ. 
Gaselee, J. concurred in the result.] Rule discharged. 

1 Metropolitan II. Co. v. Jackson, 3 App. Cas. 193; Hyman v. Nye, 6 Q. B. D. 
685; Simkm v. London R. Co., 21 Q. B. D. 453; Smith v. Browne, 28 L. R. Ir. 1; 
Bizzell V. Booker, 16 Ark. 308: Western R. Co. v. Vaughan, 113 Ga. 354; Chicago 
R. Co. V. Scott, 42 111. 132; City v. Cook, 99 Ind. 10; Needham i;. Louisville R. 
Co., 85 Ky. 423; Merrill v. Bassett, 97 Me. 501; Heinx v. Baltimore R. Co., 113 
Md. 582; Chenery v. Fitchburg R. Co., 160 Mass. 211; Brick v. Bosworth, 162 
Mass. 334; Keown v. St. Louis R. Co., 141 Mo. 86; Teepan v. Taylor, 141 Mo. 
App. 282; Brown v, Merrimack Bank, 67 N. H. 549; NashviUe R. Co. i;. Wade, 
127 Tenn. 154; Coates v. Canaan, 51 Vt. 131; Fowler v. Baltimore R. Co., 18 
W. Va. 579; Schrunk v. St. Joseph, 120 Wis. 223 Accord. 

" We do not understand that an employer's liability for the negligent act of his 
superintendent can be measured by the latter's poise of temperament, nor that the 
character of a given act of the superintendent in respect of negligence can be made 
to depend upon his excitability or the reverse. It is the duty of a superintendent 
to do what an ordinarily carefiil and prudent man would do under the same circimo- 
stances, and the employer is liable if he fail to do this and injury results to an 
employ^." Bessemer Land Co. v. Campbell, 121 Ala. 50, 60. 

Also it is erroneous to charge the jury that failure to exercise the care of " an 
ordinary man imder like circumstances " or of " a person under similar circum- 



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SECT. III.] BLYTH V. BIRMINGHAM WATERWORKS CO. 67 

BLYTH V. BIRMINGHAM WATERWORKS CO. 
In the Exchequer, February 6, 1856. 
Reported in 11 Exchequer ^ 781. 

This was an appeal by the defendants against the decision of the 
judge of the County Court of Birmingham. The case was tried before 
a jury, and a verdict found for the plaintiff for the amount claimed by 
the particulars. The particulars of the claim alleged, that the plaintiff 
sought to recover for damage sustained by the plaintiff by reason of 
the negligence of the defendants in not keeping their water-pipes and 
the apparatus connected therewith in proper order. 

The case stated that the defendants were incorporated by stat. 7 
Geo. IV., c. cix., for the purpose of supplying Birmingham with water. 

By the 84th section of their Act it was enacted, that the company 
should, upon the laying down of any main-pipe or other pipe in any 
street, fix, at the time of laying down such pipe, a proper and suflScient 
fire-plug in each such street, and should deliver the key or keys of such 
fire-plug to the persons having the care of the engine-house in or near 
to the said street, and cause another key to be himg up in the watch- 
house in or near to the said street. By sec. 87, pipes were to be eight- 
een inches beneath the surface of the soil. By the 89th section, the 
mains were at aU times to be kept charged with water. The defend- 
ants derived no profit from the maintenance of the plugs distinct from 
the general profits of the whole business, but such maintenance was 
one of the conditions imder which they were permitted to exercise the 
privileges given by the Act. The main-pipe opposite the house of the 
plaintiff was more than eighteen inches below the surface. The fire- 
plug was constructed according to the best known system, and the 
materials of it were at the time of the accident sound and in good 
order. The apparatus connected with the fire-plug was as follows: — 

The lower part of a wooden plug was inserted in a neck, which pro- 
jected above and formed part of the main. About the neck there was 
a bed of brickwork puddled in with clay. The plug was also enclosed 
in a cast iron tube, which was placed upon and fixed to the brickwork. 
The tube was closed at the top by a movable iron stopper having a 
hole in it for the insertion of the key, by which the plug was loosened 
when occasion required it. 

The plug did not fit tight to the tube, but room was left for it to 
move freely. This space was necessarily left for the purpose of easily 
and quickly removing the wooden plug to allow the water to flow. On 
the removal of the wooden plug the pressure upon the main forced the 
water up through the neck and cap to the surface of the street. 

stances " or " just such as one of you, similarly employed, would have exercised 
under like circumstances " amoimts to negligence. Austin R. Co. v. Beatty, 73 
Tex. 592; St. Louis R. Co. v. Finley, 79 Tex. 86; Louisville R. Co. v, Gower, 85 
Temi. 465. 



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68 BLTTH V. BIRMINGHAM WATERWORKS CO. [CHAP. II. 

On the 24th of February, a large quantity of water, escaping from 
the neck of the main, forced its way through the ground into the plain- 
tiff's house. The apparatus had been laid down twenty-five years, 
and had worked well during that time. The defendants' engineer 
stated, that the water might have forced its way through the brick- 
work round the neck of the main, and that the accident might have 
been caused by the frost, inasmuch as the expansion of the water 
would force up the plug out of the neck, and the stopper being in- 
crusted with ice would not suffer the plug to ascend. One of the 
severest frosts on record set in on the 15th of January, 1855, and con- 
tinued imtil after the accident in question. An incrustation of ice and 
snow had gathered about the stopper, and in the street all round, and 
also for some inches between the stopper and the plug. The ice had 
been observed on the surface of the groimd for a considerable time 
before the accident. A short time after the accident, the company's 
turncock removed the ice from the stopper, took out the plug, and 
replaced it. 

The judge left it to the jury to consider whether the company had 
used proper care to prevent the accident. He thought, that, if the 
defendants had taken out the ice adhering to the plug, the accident 
would not have happened, and left it to the jury to say whether they 
ought to have removed the ice. The jury found a verdict for the 
plaintiff for the sum claimed. 

Fieldj for the appellant. There was no negligence on the part of the 
defendants. The plug was pushed out by the frost, which was one of 
the severest ever known. 

The Court then called on 

Kennedy y for the respondent. The company omitted to take suffi- 
cient precautions. The fire-plug is placed in the neck of the main. In 
ordinary cases the plug rises and lets the water out; but here there 
was an incrustation round the stopper, which prevented the escape 
of the water. This might have been easily removed. It will be found, 
from the result of the cases, that the company were boimd to take 
every possible precaution. The fact of premises being fired by sparks 
from an engine on a railway is evidence of negligence : Piggott v. East- 
em Counties Railway Company, 3 C. B. 229 (E. C. L. R. vol. 54); 
Aldridge v. Great Western Railway Company, 3 M.. & Gr. 515 (Id. 
42), 4 Scott, N. R. 156, 1 Dowl. n. s. 247, s. c. [Martin, B. I held, 
in a case tried at Liverpool, in 1853, that, if locomotives are sent 
through the coimtry emitting sparks, the persons doing so incur all 
the responsibilities of insurers; that they were liable for all the con- 
sequences.^ I invited counsel to tender a bill of exceptions to that 
ruling. Water is a different matter.] It is the defendants' water, 
therefore they are bound to see that no injury is done to any one by 

» " See Lambert v. Bessey, T. Ravm. 422; Scott v. Shepherd, 3 Wils. 403. 
Probably an action of trespass might have been brought." [Reporter's note.] 



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SECT, nij BLYTH V. BIKMINGHAM WATERWORKS CO. 69 

it. An action has been held to lie for so negligently constructing a 
hayrick at the extremity of the owner's land, that, by reason of its 
spontaneous ignition, his neighbor's house was burnt down : Vaughan 
V. Menlove, 3 Bing. N. C. 468 (E. C. L. R. vol. 32). [Bramwell, B. 
In that case discussions had arisen as to the probability of fire, and 
the defendant was repeatedly warned of the danger, and said he would 
chance it.] He referred to Wells v. Ody, 1 M. & W. 462. [Alder- 
son, B. Is it an accident which any man could have foreseen ?] A 
scientific man could have foreseen it. If no eye could have seen what 
was going on, the case might have been different; but the company's 
servants could have seen, and actually did see, the ice which had col- 
lected about the plug. It is of the last importance, that these plugs, 
which are fire-plugs, should be kept by the company in working order. 
The accident cannot be considered as having been caused by the act 
of God: Siordet v. Hall, 4 Bing. 607 (Id. 13). 

Alderson, B. I am of opinion that there was no evidence to be 
left to the jury. The case turns upon the question, whether the facts 
proved show that the defendants were guilty of negligence. Negli- 
gence is 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.^ The defendants might have been 
liable for negligence, if, unintentionally, they omitted to do that which 
a reasonable person would have done, or did that which a person tak- 
ing reasonable precautions would not have done. A reasonable man 
would act with reference to the average circumstances of the tempera- 
ture in ordinary years. The defendants had provided against such 
frosts as experience would have led men, acting prudently, to provide 
against; and they are not guilty of negligence, because their precau- 
tions proved insufficient against the effects of the extreme severity of 
the frost of 1855, which penetrated to a greater depth than any which 
ordinarily occurs south of the polar regions. Such a state of circum- 
stances constitutes a contingency against which no reasonable man can 
provide. The result was an accident for which the defendants cannot 
be held liable. 

Martin, B. I think that the direction was not correct, and that 
there was no evidence for the jury. The defendants are not respon- 
sible, unless there was negligence on their part. To hold otherwise 
would be to make the company responsible as insurers. 

1 Nitro-Glycerinc Case, 15 Wall. 624; Thompson v. Chicago R. Co., 189 Fed. 
723: Fort Smith Co. v. Slover, 68 Ark. 168; Richardson v. Kier, 34 Cal. 63: Nolan 
V. New York R. Co., 63 Conn. 461: Wolf Mfg. Co. v. Wilson, 162 111. 9: Cincin- 
nati R. Co. v. Peters. 80 Ind. 168; Galloway v. Chicago R. Co., 87 la. 468; Schnei- 
der V. Little, 184 Mich. 315; Lauritaen v. Bridge Co.. 87 Minn. 618; McGraw v. 
Chicago R. Co., 69 Neb. 397: Roberts v, Boston R. Co., 69 N. H. 354; Drake v. 
Mount, 33 N. J. Law, 441 ; Chicago R. Co. v. Watson, 36 Okl. 1 ; Ahem v. Oregon 
Co., 24 Or. 276; Houston R. Co. v, Alexander, 103 Tex. 694; Washington v. B^ti- 
more R. Co., 17 W. Va. 190 Accord. 



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70 YERKES V. NORTHERN PACIFIC B. CO, [CHAP, U. 

Bramwell, B. The Act of Parliament directed the defendants to 
lay down pipes, with plugs in them, as safety-valves, to prevent the 
bursting of the pipes. The plugs were properly made, and of proper 
material; but there was an acciunulation of ice about this plug, which 
prevented it from acting properly. The defendants were not bound 
to keep the plugs clear. It appears to me that the plaintiff was under 
quite as much obligation to remove the ice and snow which had ac- 
cumulated, as the defendants. However that may be, it appears to 
me that it would be monstrous to hold the defendants responsible 
because they did not foresee and prevent an accident, the cause of 
which was so obscure, that it was not discovered until many months 
after the accident had happened. 

Verdict to be entered for the defendants} 



YERKES V. NORTHERN PACIFIC R. CO. 

Supreme Court, Wisconsin, November 29, 1901. 

Reported in 112 Wiaconain ReporU, 184. 

DoDOE, J. . . . Plaintiff assigns as error the definition of the due 
care which plaintiff was bound to exercise to avert the charge of con- 
tributory negligence, viz.: — 

" The plaintiff cannot recover in this case unless you find that he 
was in no manner guilty of any want of ordinary care, or such care as 
persons of ordinary care ordinarily use, which contributed to his said 
injuries." * 

. That this was an incorrect and misleading definition of '' ordinary 
care " has been declared so often by this court as to make further dis- 
cussion unnecessary. The rule has been repeatedly laid down that 
due care is to be tested by the surrounding circimiistances, and that 
no definition is complete or correct which does not embody that ele- 
ment.' Ordinary care is the care ordinarily exercised by the great 

1 Sharp V. Powell, L. R. 7. C. P. 253; Pearson i;. Cox. 2 C. P. D. 369; Gregg v. 
Illinois R. Co., 147 111. 650, 660; Missouri R. Co. v. Columbia, 65 Kan. 390, 400; 
Sutphen v. Hedden, 67 N. J. Law, 324; Crutchfield v. Richmond R. Co., 76 N. C. 
320; Martin v. Highland Park Co., 128 N. C. 264; Simpson v. Southern R. Co., 
154 N. C. 51; McCauley i;. Logan, 152 Pa. St. 202; Bradley v. Lake Shore R. Co., 
238 Pa. St. 315 (" only an extreme visionary would have imagined the conse- 
quences which followed or that injunr could result to person or property there- 
from "); Consiuners Brewing Co. v. Doyle, 102 Va. 399; Lippert v. Brewing Co., 
141 Wis. 453 Accord. 

* Only that part of the opinion which relates to this instruction is given. 

» " There is no absolute or intrinsic ne^gence; it is always relative to some cir- 
cumstances of time, place, or person." BramwelL B., in Degg v. Midland R. Co., 1 
Hurlst. & N. 773, 781. See also Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. 
D. 685, 694. 

Bizzell V. Booker, 16 Ark. 308; Needham v. San Francisco R. Co., 37 Cal. 409; 
Diamond Iron Co. v. Giles, 7 Houst. 657; Atlantic R. Co. v. Moore, 8 Ga. App. 
185; Chicago R. Co. v. Johnson, 103 111. 512: Parks v. Yost, 93 Kan. 334; Sheridan 
V, Baltimore R. Co., 101 Md. 50; Kelly v. Michigan R. Co., 65 Mich. 186; De Bolt 



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SECT, ni.] HILL V. GLENWOOD 71 

mass of mankind, or its tjrpe, the ordinarily prudent person, mider the 
same or similar circumstances, and the omission of the last qualifica- 
tion, " under the same or similar circumstances," or '* imder like cir- 
cumstances," is error. Boelter v. Ross L. Ck)., 103 Wis. 324, 330; 
Dehsoy v. Milwaukee E. R. & L. Co., 110 Wis. 412; Warden v. Miller, 
ante, p. 67. The necessity of the omitted qualification to a correct 
definition of due care is especially obvious under the circumstances of 
this case. What would be the care of an ordinarily prudent person, 
standing in safety upon a stationary platform, or even standing upon 
the perfect and level footboard of a moving switch engine, would not 
be the care to be expected of one attempting to perform the services 
of a yard man upon a bent, declining, and defective footboard such 
as here presented. The attention of the jury was not called by this 
instruction to a very important element which they must consider in. 
order to decide whether the plaintiff was or was not guilty of con- 
tributory negUgence, and the instruction to them on the subject was 
therefore misleading and erroneous. 



HILL V. GLENWOOD 

SXTPBEME COUBT, loWA, JULY 13, 1904. 
Reported in 124 loioa Reports, 479. 

Weaver, J.^ The plaintiff claims to have been injured upon one of 
the public walks in the city of Glenwood, and that such injury was 
occasioned by reason of the negligence of the city in the maintenance 
of the walk at the place of the accident, and without fault on his own 
part contributing thereto. From verdict and judgment in his favor 
for $665, the city appeals. In this court the appellant makes no claim 
that the city was not negligent, but a reversal is sought on other 
grounds. 



It was shown without dispute that plaintiff had been blind for many 
years, and this fact is the basis of the criticism upon the charge given 
to the jury. In the third paragraph of the charge, the court, defining 
negUgence, said: " (3) NegUgence is defined to be the want of ordi- 
nary care; that is, such care as an ordinary prudent person would 
exercise imder like circumstances. There is no precise defim'tion of 

V. Kansas City R. Co., 123 Mo. 496: Garland v. Boston R. Co., 76 N. H. 556: New 
Jersey Exp. Co. v, Nichols, 33 N. J. Law. 434; McGuire v. Spence, 91 N. Y. 303; 
Connell v. New York R. Co., 144 App. Div. 664; Anderson v. Atlantic R. Co., 161 
N. C. 462; Elster v. Spring6eld, 49 Ohio St. 82; Frankford Co. v, Philadelphia R. 
Co., 64 Pa. St. 345; Virginia Power Co. v. Smith, 117 Va. 418; Morrison v. Power 
Co., 75 W. Va. 608; Davis v. Chicago R. Co., 58 Wis. 646 Acc<yrd. 

Hence it is incorrect to define ordinary care as " such care as the ordinary per- 
son uses in the transaction of the ordinary affairs of life." Hennesey v. Chicago R, 
Co., 99 Wis. 109. 

* Only part of the opinion is given. 



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72 HILL V. GLENWOOD [CHAP. !!• 

ordinary care, but it may be said that it is such care as an ordinarily 
prudent person would exercise imder like circumstances, and should 
be proportioned to the danger and peril reasonably to be apprehended 
from a lack of proper prudence. This rule appUes aUke to both parties 
to this action, and may be used in determining whether either was 
negligent." In the eighth paragraph, referring to the plaintiff's duty 
to exercise care for his own safety, the following language is used: 
" (8) It must also appear from the evidence that the plaintiff did not 
in any way contribute to the happening of the accident in question by 
any negligence on his part; that is, by his own want of ordinary care. 
The plaintiff, on his part, was imder obUgation to use ordinary care to 
prevent injury when passing over any sidewalk; and if he failed so to 
do, and his failing in any way contributed to the happening of the 
accident in question, then he cannot recover herein. The evidence 
shows without dispute that he was blind, and this fact should be con- 
sidered by you in determining what ordinary care on his part would 
require when he was attempting to pass over one of the sidewalks of 
this city." Counsel for appellant do not deny that the rules here laid 
down would be a correct statement of the law of negligence and con- 
tributory negligence as applied to the ordinary case of sidewalk acci- 
dent, but it is urged that the conceded fact of plaintiff's blindness 
made it the duty of the court to say to the jury that a blind person who 
attempts to use the public street " must exercise a higher degree of 
care and caution than a person ordinarily would be expected or re- 
quired to use had he full possession of his sense of sight." We cannot 
give this proposition oiu- assent. It is too well established to require 
argument or citation of authority that the care which the city is 
boimd to exercise in the maintenance of its streets is ordinary and 
reasonable care, the care which ordinarily marks the conduct of a 
person of average prudence and foresight. So, too, it is equally well 
settled that the care which a person using the street is bound to exer- 
cise on his own part to discover danger and avoid accident and injury 
is of precisely the same character, the ordinary and reasonable care of 
a person of average prudence and foresight. The. streets are for the 
use of the general public without discrimination; for the weak, the 
lame, the halt and the blind, as well as for those possessing perfect 
health, strength, and vision. The law casts upon one no greater 
burden of care than upon the other. It is true, however, that in deter- 
mining what is reasonable or ordinary care we must look to the cir- 
cumstances and surroundings of each particular case. As said by us in 
Graham v. Oxford, 105 Iowa, 708: " There is no fixed rule for deter- 
mining what is ordinary care appUcable to all cases, but each case 
must be determined according to its own facts." In the case before 
us the plaintiff's blindness is simply one of the facts which the jury 
must give consideration, in finding whether he did or did not act with 
the care which a reasonably prudent man would ordinarily exercise. 



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SECT, in.] KEITH V, WORCESTER STREET R. CO, 73 

when burdened by such infirmity. In other words, the measures 
which a traveler upon the street must employ for his own protection 
depend upon the nature and extent of the pferil to which he knows, or 
in the exercise of reasonable prudence ought to know, he is exposed. 
The greater and more imminent the risk, the more he is required to 
look out for and guard against injury to himself; but the care thus 
exercised is neither more nor less than ordinary care — the care which 
men of ordinary prudence and experience may reasonably be expected 
to exercise imder like circumstances. See cases cited in 21 Am. & 
Eng. Enc. Law, (2d ed.) 465, note 1. In the case at bar the plaintiff 
was rightfully upon the street, and if he was injured by reason of the 
negligence of the city, and without contributory negligence on his 
part, he was entitled to a verdict. In determining whether he did 
exercise due care it was proper for the jury, as we have already indi- 
cated, to consider his blindness, and in view of that condition, and all 
the surrounding facts and circumstances, find whether he exercised or- 
dinary care and prudence. If he did, he was not guilty of contributory 
negligence. 

This view of the law seems to be fairly embodied in the instructions 
to which exception is taken. If the appellant believed, as it now 
argues, that the charge should have been more specific, and dwelt with 
greater emphasis upon the fact of plaintiff's blindness as an element 
for the consideration of the jury in finding whether he exercised rea- 
sonable care, it had the right to ask an instruction framed to meet its 
views in that respect. No such request was made, and the omission 
of the court to so amplify the charge on its own motion was not error.* 



KEITH V, WORCESTER STREET R. Co. 
Supreme Judicial Court, Massachusetts, November 26, 1907. 

Reported in 196 Massachusetts Reports ^ 478. 

Two Actions op Tort for personal injuries received by the plain- 
tifif^s intestate caused by her falling when stepping across street rail- 
way rails which were piled by the defendant street railway company 
on the highway next to the curbing, and were allowed by the street 
railway company and the defendant town to remain there, and which, 
it was aUeged, constituted an obstruction of the highway.^ 

The accident happened in the daytime. The plaintiff's mtestate 
was near-sighted, and could not recognize a friend at a distance of 
more than ten or twelve feet. 

» Rosenthal v. Chicago R. Co., 255 111. 552; Indianapolis Traction Co. v. 
Crawley, 61 Ind. App. 357 (deaf man); OTlaherty v. Union R. Co., 45 Mo. 70; 
Simms v. South Carolina R. Co., 27 S. C. 268. Accord. 

• Statement abridged. Part of opinion omitted. 



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74 KEITH V. WOHCEBTER STREET R. CO. [CHAP. II. 

At the trial in the Superior Court, defendants requested the follow- 
ing instruction: — 

*' If the plaintiff's intestate had defective eyesight, she should take 
greater care in walking the street than one of good eyesight; and if 
she faUed to use this greater degree of care, the verdict must be for the 
defendant." 

This request was refused, subject to exception. 

In the charge to the jury, the presiding judge stated; " The plain- 
tiff contends and has got to show by a fair preponderance of the evi- 
dence that Mrs. Keith was injured, and that she was injured while she 
was using ... a degree of care that a reasonably prudent and care- 
ful person, acting prudently and carefully at the time, would have 
exercised and should have exercised in your judgment imder all the 
circiunstances then surrounding Mrs. Keith. That means not only ex- 
ternal circumstances, that means not only the way in which the rails 
were placed, the location of the car, the necessity of action on her 
part, but it means also with reference to her personal peculiarities as 
they were shown to exist upon the stand. For instance, the conduct 
of a perfectly soimd and healthy person may be properly regarded as 
one thing, when the same conduct on the part of a diseased or infirm 
person might be regarded as something very different. 

" What might be in yoiu- judgment perfectly reasonable and proper 
and careful on the part of a sound person might be regarded fairly by 
you as improper and careless on the part of an infirm person. 

" So, in this case, while I cannot instruct you as a matter of law 
that Mrs. Keith, if you find her to. be nearnsighted, was bound to use a 
higher degree of care than a person not nearnsighted, I have got to 
leave it to you as a matter of fact whether a near-sighted person would 
not, in order to be careful, have to exercise a higher degree of care than 
a person not near-sighted. In other words, I have got to leave it to 
you to determine whether or not a near-sighted person is using due 
care if he or she imder the particular circumstances acts exactly 
as a person who was not near-sighted would have done. In other 
words, it is a matter of fact for you to determine whether Mrs. 
Keith was caUed on to do differently from a person in full possession 
of eyesight rather than as a matter of law for me to direct you in 
regard to it." 

The jury foimd for the plaintiff in both cases. 

RuGG, J. . . . The defendant asked the court to rule that if the 
person injured " had defective eyesight, she should take greater care 
in walking the street than one of good sight, and if she faUed to use 
this greater degree of care the verdict must be for the defendant." 
This request properly was refused, for the rea&on that it directed a 
verdict upon a single phase of the testimony, which was not neces- 
sarily decisive. In this respect the prayer differs vitally from the one 
which in Winn v. Lowell, 1 Allen, 177, this court held should have been 



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SECT, ni.] KEITH V. WORCESTER STREET R. CO. 76 

given.* We see no reason for modifying the decision in Winn v. Lowell, 
nor is it inconsistent with subsequent cases. The standard of care 
established by the law is what the ordinarily prudent and cautious 
person would do to protect himself under given conditions. There is 
no higher or different standard for one who is aged, feeble, blind, halt, 
deaf or otherwise impaired in capacity, than for one in perfect phjnacal 
condition. It has frequently, in recent as well as earlier cases, been 
said, in referring to one under some impediment, that greater caution 
or increased circumspection may be required in view of these adverse 
conditions. See, for example, Winn v. Lowell, 1 Allen, 177; Hall v. 
West End Street Railway, 168 Mass. 461 ; Hilbom v. Boston & North- 
em Street Railway, 191 Mass. 14; Vecchioni v. New York Central & 
Hudson River Railroad, 191 Mass. 9; Hawes r. Boston Elevated 
Railway, 192 Mass. 324; Hamilton v. Boston & Northern Street Rail- 
way, 193 Mass. 324. These expressions mean nothing more than that 
a person so afflicted must put forth a greater degree of effort than one 
not acting under any disabilities, in order to attain that standard of 
care which the law has established for everybody. When looked at 
from one standpoint, it is incorrect to say that a blind person must 
exercise a higher degree of care than one whose sight is perfect, but in 
another aspect, a blind person may be obliged to take precautions, 
practice vigilance and sharpen other senses, unnecessary for one of 
clear vision, in order to attain that degree of care which the law re- 
quires. It may depend in some slight degree upon how the description 
of duty begins, where the emphasis may fall at a given moment, but 
when the whole proposition is stated, the rights of the parties are as 
fully protected in the one way as in the other. It is perhaps more 
logical to say that the plaintiff is bound to use ordinary care, and that 
in passing upon what ordinary care demands, due consideration should 
be given to blindness or other infirmities. This was the course piu*- 
sued by the Superior Court. Neff v. Wellesley, 148 Mass. 487. Smith 
t. Wildes, 143 Mass. 556. But it is also correct to say that in the 
exercise of common prudence one of defective eyesight must usually as 
matter of general knowledge take more care and employ keener 
watchfulness in walking upon the streets and avoiding obstructions 
than the same person with good eyesight, in order to reach the stand- 
ard established by the law for all persons alike, whether they be weak 
or strong, soimd or deficient. 

Exceptions overruled* 

I The instruction which the court held should have been given in Winn v. 
Lowell was: ** If the plaintiff was a person of poor sight, conunon prudence re- 
ouired of her greater care in walking upon the streets, and avoiding obstructions, 
tnan is required of persons of good sight/' 

« Compare Fenneman v, Holden, 75 Md. 1; Karl v, Juniata, 206 Pa.. St. 633: 
Thompson v. Salt Lake Co., 16 Utah 28L 



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76 MEREDITH V. REED , [CHAP.' II. 

MEREDITH v. REED 
Supreme Court, Indiana, May Term, 1866. 

Reported in 26 Indiana Reports, 334. 

Gregory, C. J. Meredith sued Reed before a justice for an injury 
done by a stallion of the latter to the mare of the former, resulting in 
the death of the mare. Jury trial, verdict for the defendant; motion 
for a new trial overruled and judgment. The evidence is in the record. 
The facts are substantially as follows: In May, 1865, the defendant 
owned a stallion, which had previously been let to mares, but owing 
to the sickness of the owner, was not so let during the spring of 1865.' 
He was a gentle stallion, and had never been known by the ownei: to 
be guilty of any vicious acts. Not being in use, he had been kept up 
in a stable for four or five months. He was seciu'ed in the stable by a 
strong halter and chain, fastened through an iron ring in the manger. 
The stable door was seciu'ely fastened on the inside by a strong iron 
hasp, passed over a staple, and a piece of chain passed two or three 
times through the staple over the hasp, and the ends firmly tied to- 
gether with a strong cord. It was also fastened on the outside by a 
piece of timber, one end of which was planted in the groimd, while 
the other rested against the door. The horse was thus secured on the 
day and night the injury occurred. The gate of the enclosure sur- 
rounding the stable was shut and fastened as usual. About 11 o'clock 
that night the horse was foimd loose on the highway, and did the 
injiuy complained of. Early the following morning the outside gate 
was foimd open; the stable door was foimd open, with the log prop 
lying some distance to one side, and the chain which had been passed 
through the staple was gone, and the cord with which it had been tied 
was found cut and the pieces lying on the floor. 

There are forty-two alleged errors assigned, but many of them are 
not, in our opinion, so presented as to entitle them to consideration in 
this Court. So far as the substantial rights of the appellant are in- 
volved, all the questions properly presented resolve themselves into 
the inquiry as to the nature and extent of the Uability of the owner of 
a domestic animal for injuries done by it to the personal property of 
another, disconnected from any trespass to real estate. 

It is contended, on the one hand, that ordinary care was all the law 
required of the defendant in this case. On the other it is claimed that 
the utmost care was necessary to free him from liability. Ordinary 
care is all that the law required in the case in judgment. What is ordi- 
nary care in some cases would be carelessness in others. The law re- 
gards the circumstances surroimding each case, and the nature of the 
animal or machinery under control. Greater care is required to be 
taken of a stallion than of a mare; so in the management of a steam- 
engine, greater care is necessary than in the use of a plow. Yet it is 



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SECT. III.] DENVER ELECTRIC COMPANY V. SIMPSON 77 

all ordinary care; such care as a prudent, careful man would take 
under like circumstances. The degree of care is alwa3rs in proportion 
to the danger to be apprehended. The case at bar was properly sent to 
the jury, and the verdict is fully sustained by the evidence. 

The judgment is affirmed, with costs. 



DENVER ELECTRIC COMPANY v. SIMPSON 

Supreme Court, Colorado, April Term, 1895. 

Reported in 21 Colorado Reports, 371. 

Action for damage caused to plaintiff, while passing along a public 
alley, by his coming in contact with one of defendants' wires heavily 
charged with electricity, which had become detached from its over- 
head fastening, and was hanging down to within about two feet of the 
ground. At the trial there was some evidence tending to show that 
the position of the wire was due to the negUgence of the defendants. 
Verdict for plaintiff, and judgment thereon. Defendant appealed; 
alleging as one groimd the giving of certam instructions as to tie care 
required by defendant. Those instructions are stated in the opinion.^ 

Campbell, J. . . . This court does not recognize any degrees of 
negligence, such as slight or gross, and logically it ought not to recog- 
nize any degrees in its antithesis, care.* The court instructed the jury 
in this case that the defendant was not an insurer of the safety of 
plaintiff, but that in constructing its line and maintaining the same 
in repair, it was held to the utmost degree of care and diligence; that 
in this respect it is bound to the highest degree of care, skill, and dili- 
gence in the construction and maintenance of its lines of wire and 
other appurtenances, and in carrying on its business, so as to make 
the same safe against accidents so far as such safety can, by the use 
of such care and diligence, be secured. If it observed such degree of 
care, it was not liable; if it failed therein, it was liable for injuries 
caused thereby. 

We think the court was imfortunate in attempting to draw any dis- 
tinctions in the degrees of care or negUgence. It would have been 
safer and the better practice to instruct the jury, — which ought here- 

^ Statement abridged. Only so much of the opinion is given as relates to a single 
point. 

* Compare Wilson v. Brett, 11 M. & W. 113; Austin v. Manchester R. Co., 10 
C. B. 454; Grill v. General Collier Co., L. R. 1 C. P. 600; Steamboat New World 
V, King, 16 How. 469; Purple v. Union R. Co.. 114 Fed. 123: Oregon Co. v. Roe, 
176 Fed. 715; Stringer v, Alabama R. Co., 99 Ala. 397; Louisville R. Co. v. 
Shanks, 94 Ind. 598; Denny v. Chicago R. Co., 150 la. 460; Raymond v. Portland 
R. Co. 100 Me. 529; McPheeters v. Hannibal R. Co.. 45 Mo. 22; Reed v. Tele- 
paph Co., 135 Mo. 661 ; Village v, HoUiday, 50 Neb. 229; Perkins v. New York R. 
Co., 24 N. Y. 196: McAdoo v. Richmond R. Co., 105 N. C. 140; Fitzgerald v. 
Grand Trunk R. CSo., 4 Ont. App. 601 Accord. 

In Wilson v. Brett, aupraf Kolfe, B., said: " I could see no difference between 
ne^igence and gross negligence — ... it was the same thing with the addition 
of a vituperative epithet.'^ 



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78 DENVEK ELECTRIC COMPANY V. SIMPSON [CHAP. II, 

after to be observed, — even in cases like the one before us, that the 
defendant was bound to exercise that reasonable care and caution 
which would be exercised by a reasonably prudent and cautious person 
under the same or similar circumstances. In addition to this, the jury 
should have been instructed that the care increases as the danger does, 
and that where the business in question is attended with great peril 
to the public, the care to be exercised by the person conducting the 
business is commensurate with the increased danger. But, in effect, 
this is what the court did. Under the facts of the case, the law re- 
quired of the defendant conducting, as it did, a business so dangerous 
to the public, the highest degree of care which skill and foresight can 
attain consistent with the practical conduct of its business under the 
known methods and the present state of the particular art. This is 
the measure of the duty owed by a common carrier to a passenger for 
hire. Thompson's Carriers of Passengers, p. 208, and cases cited. 
Not for the same reason, or because the doctrine r^ts upon the same 
principle, but with even greater force should this rule apply to a per- 
son or corporation engaged in the equally, if not more, dangerous busi- 
ness of distributing electricity throughout a city by means of wires 
strung over the pubUc alle3rs and streets, in so far as concerned its 
duty to the travelling public. 

In those courts where degrees of negligence are not coimtenanced, 
nevertheless, in cases where the duty of a common carrier of pas- 
sengers is laid down, the jury are told that carriers are bound to the 
utmost degree of care which human foresight can attain. This is upon 
the theory that reasonable or ordinary care in a case of that kind is the 
highest care which human ingenuity can practically exercise, and 
that, as a matter of law, courts will hold every reasonably prudent and 
careful man to the exercise of the utmost care and diligence in protect- 
ing the public from the dangers necessarily incident to the carrying 
on of a hazardous business. 

Where the facts of a case natmally lead equally intelligent persons 
honestly to entertain different views as to the degree of care resting 
upon a defendant, the court ought not to lay down a rule prescribing 
any particular or specific degree in that case. But where all minds 
concur — as they must in a case like the one we are now considering 
— in regarding the carrying on of a business as fraught with peril 
to the public inherent in the nature of the business itself, the court 
makes no mistake in defining the duty of those conducting it as the 
exercise of the utmost care. It was, therefore, not prejudicial error 
for the court to tell the jury in this case what the law requires of the 
defendant, viz., the highest degree of care in conducting its business. 



Judgment affirmed} 

1 Maryland R. Co. v. Tucker, 115 Md. 43; Gates v, HaU, 171 N. C. 360; Lundy 
Southern Tel. Co., 90 S. C. 25 Accord. 



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8BCT. lU.] LAKE £KI£ h WESTERN R. CO. V. FORD 79 

LAKE ERIE & WESTERN R. CO. v. FORD 

SXTPBEMB COUBT, INDIANA, OCTOBEB 23, 1906. 

Reported in 167 Indiana Beporta, 205. 

GiLLETT, J. Complaint by appellee to recover damages for loss of 
property by fire, by reason of the alleged negligence of appellant. 
There was a verdict and judgment in favor of appellee.^ 

Appellant complains of appellee's instructions five and six, which 
were given by the court in the order indicated by their numbers. They 
are as follows: '' (5) It is the duty of a railroad to use all reasonable 
precaution in running and operating its trains, and in providing its 
engines with proper spark-arresters, so as to prevent injury to the 
property of others by sparks or fire emitted or thrown therefrom. 
(6) If you believe from all of the evidence and circumstances in the 
case that at the time and prior to the destruction of the property of 
the plaintiff, as alleged in his complaint, there were a number of 
wooden buildings and structures standing on either side of the defend- 
ant's track and in close proximity thereto, including the bam or stable 
of said Melissa McFall in the town of Hobbs, and at such time it was, 
and for some time prior thereto it had been, unusually dry, thereby 

See various forms of stating this general doctrine in 2 Hutchinson on Carriers, 
(3d. ed.) f i 895, 896: 4 EUiott on Railroads (1st ed.) § 1585; 1 Shearman A Red- 
field on Ne^igenoe (6th ed.) § 51. 

In Wharton on NegliflBnoe (1st ed.) i\ 636. 637, the author says that the dili- 
gence should be " that mioh a good earner of the particular grade is accustomed 
to exert; " i. e., " the diligence and skill which a good business man in his specialty 
is accustomed to use under similar circimistances.'' 

For a criticism of Wharton's statement, see 1 S. A R. Ne^^. (6th ed.) {{ 43-50. 
And compare 2 Hutchinson on Carriers (3d ed.) { 897, note 13. 

" It is reasonable care imder the existing circumstances that one person has the 
right to require oi another: and that degree of care becomes incrrased with any 
increase of the apparent danger involved in its absence or with the increased 
power of control of one of the parties whose conduct is in question. ... A com-, 
mon carrier of passengers eith^ by raO or by water has so complete a control and 
the consequences of negligence on his part may be so serious that he is justly held 
to a very high degree of care for their safety: and accordingly it has bera often 
said, both in this and in other jurisdictions, that he is held to the exercise of the 
highest degree of care. But as was pointed out in Dodge v, Boston A Bangor 
Steamshm Co., 148 Mass. 207, 217, 218, this phrase and similar words which have 
been used to convey the same idea mean simply that the carrier is bound to use the 
utmost care consistent with the nature of his undertsJcing and with a due refl»rd 
tor all other matters that ou^t to be considered in conducting the business. This 
conductor was not boimd absolutely to exercise the highest degpree of care in 
running his car, but onlv the hishest degree of care which was consistent with the 
practiced performance of all his duties in seeing that the car was run safety without 
unreasonable delays, and so as to provide tor the safety and convenience and 
properiy rapid transit of his passengers. What was required oi him was the hi^eet 
degree of care consistent with the practical manaoement and operation of his car 
for the carrutge of passengers, ' or in other words, the requirement [was] reasonable 
care according to the nature of the contract ' with the passengers.'' Sheldon, J.^ 
in Gardner t;. Boston R. Co., 204 Mass. 213, 216. Compare Campbell, J., in 
Michigan R. Co. v. Coleman, 28 Mich. 440, 449. 

^ Cmly so much of the case is given as relates to a single point. 



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80 LAKE ERIE & WESTERN R. CO. V. FORD [CHAP. II. 

rendering such wood buildings and structures, including the bam or 
stable of said Melissa McFall, and also the property of the plaintiflf 
herein, unusually dry, injaammable, and easily set on fire by sparks 
and coals of fire emitted from defendant's engines in passing through 
said town, and that there was also at the time, and for several hours 
prior thereto had been, a strong wind blowing continuously across the 
defendant's track, in the direction of the bam or stable of said Melissa 
McFall, and the wooden buildings and structures near the defendant's 
track, including the property of the plaintiff herein, which greatly and 
imusually increased the danger and risk of setting fire to such buildings 
by sparks and coals of fire emitted or thrown from its engine in pass- 
ing through said town, over ordinary times and conditions, and all 
of which facts and conditions the defendant knew at the time, the de- 
fendant, \mder such circmnstances, would be required to use a greater 
degree of care in operating and running its engines through said town 
to prevent injiuy to such buildings or property by sparks or coals of 
fire emitted or thrown from its engine, than it would at ordinary times 
and under ordinary conditions." 

Assuming, without deciding, that it was not error for the court, in 
its fifth instruction, to use the term " reasonable precaution," instead 
of the preferable one, " ordinary care," ^ and assuming further, since 
the care that the company was required to exercise was, so far as the 
element of law was concerned, to be measured by a fixed standard, 
which was to be fully complied with (Wharton, NegUgence [2d ed.], 
§ 46), that it was proper to use the expression " all reasonable precau- 
tion," the question arises whether it is not likely that the jury was 
misled by the charge in the next instruction that in the circumstances 
therein hypothetically stated " a greater degree of care " was required 
than in ordinary conditions. The sixth instruction would have been 
proper, had the court charged, after stating to the jury hypothetically 
the conditions which existed, leaving it to them to determine whether 
the danger was increased, that, in the event they so foimd, it was their 
duty, in determining whether reasonable or ordinary care had been 
exercised, to consider the increased danger of fire, yet we cannot say 
that this was the fair meaning of the words in which said instruction 
was couched. 

There has been much discussion in thfe books concerning the cor- 
rectness of the old doctrine as to degrees of negUgence. New York 
Central R. Co. v, Lockwood, (1873) 17 Wall. 357, 21 L. Ed. 627 
Steamboat New World v. King, (1853) 16 How. 469, 14 L. Ed. 1019 
Ohio, etc., R. Co. v. Selby, (1874) 47 Ind. 471, 17 Am. Rep. 719 
Pennsylvania Co. v. Sinclair, (1878) 62 Ind. 301, 30 Am. Rep. 185 
Wharton, Negligence (2d ed.), § 44; 6 Albany L. J. 313; 2 Ames & 

* "Due care," "reasonable care," and "ordinary care" are synonjrmous terms. 
Neal V. Gillett. 23 Conn. 437; Baltimore R. Co. t;. Faith, 175 lU. 58; Raymond v, 
Portland R. Co., 100 Me. 529; Durant v. Palmer, 29 N. J. Law, 544. 



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SECT. III.] LAKE ERIE & WESTERN R. CO. V. FORD 81 

Smith, Cases on Torts, 143; 21 Am. and Eng. Ency. Law (2d ed.), 
459, and cases cited. While we apprehend that the adverse opinions 
which have been expressed concerning such doctrine were not intended 
to be understood as miUtating against the view that the legal standard 
of care is not the same in all relations, or to discoimtenance the prac- 
tice of charging the jury in terms that indicate the extent of care 
required, as great, orcUnary, or slight (1 Shearman & Redfield, NegU- 
gence [5th ed.], § 47) , yet the point which we wish to enforce now is that 
in all cases negligence consists simply in a failure to measure up to the 
legal standard of care. It was said by Willes, J., in Grill v. General 
Iron Screw, etc., Co., (1866) L. R. 1 C. P. 600, 611: " Confusion has 
arisen from regarding negUgence as a positive instead of a negative 
word. It is really the absence of such care as it was the duty of the 
defendant to use." 

Here we admittedly have a case in which it was the duty of the 
company to exercise ordinary care, but what does an instruction mean 
that informs the jury that in certain circumstances a greater degree 
of care is required, when it has for a background an instruction, which 
is appUcable to all circumstances, that all reasonable precaution must 
be used ? We think that in such a case the jury would understand that 
more than ordinary care was requued, and it is not improbable that 
the effect of giving such an instruction, following an instruction like 
5, would be to lead the jury to infer that the defendant's duty was 
raised by the circumstances recited to a pitch of intensity that could 
not reasonably have been attained. 

It was said by this court in Meredith t^. Reed, (1866) 26 Ind. 334, 
337: " What is ordinaiy care in some cases, would be carelessness in 
others. The law regards the circimistances surrounding each case, and 
the nature of the animal or machinery under control. Greater care is 
required to be taken of a stallion than of a mare; so in the manage- 
ment of a steam engine, greater care is necessary than in the use of a 
plough. Yet it is all ordinary care." The legal standard of care re- 
quired in a particular relationship is always the same, although the 
amount of care thus required depends upon the particular circum- 
stances. Cleveland, etc., R. Co. v. Terry, (1858) 8 Ohio St. 570; 
Weiser v. Broadway, etc., St. R. Co., (1895) 6 Ohio Dec. 215. As has 
been observed by a modem writer: " This standard may vary in fact, 
but not in law." 2 Jaggard, Torts, p. 819. In an article in 3 [6] Al- 
bany, L. J. 314, it is said: " The ratio, proportion or correspondence 
of diligence to ch-cumstances, of care to surroimdings, is fixed and 
identical. And, in determining a question of diligence or negligence in 
either case [as between two cases previously used by way of illustra- 
tion], it would be only necessary to apply the same rule to varjdng 
circumstances and persons, to demand the same ratio between vary- 
ing extremes. And it is not too much to assert that all the perplexity 
and misimderstanding on the subject of diligence and negligence are 



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82 LAKE ERIE & WESTERN R. CO. V. FORD [CHAP. II. 

due to the habit of confounding the specific acts and circumstances, 
which must always vary, with the ratio or relation between them, 
which remains always the same." 

In 13 Am. and Eng. Ency. Law (2d ed.), 416, it is said: " The very 
statement of the general rule that reasonable care is required to pre- 
vent injuries to others from fire, implies that what is reasonable care 
must depend upon the circiunstances of each particular case. It is, 
however, inaccurate to say, as many of the cases do, that the degree of 
care varies with the particular circumstances. It is only reasonable 
care that is required in any case; but the greater the danger, or the 
more likely the communication of fire and the ignition of the property 
of others, the more precautions and the closer vigilance reasonable 
care requires." As above suggested, cases can be foimd in which it is 
stated that the degree of care to be used depends upon the danger, but, 
as has been observed by this court, it is not every statement of the law 
as foimd in an opinion or text-book, however well and accurately put, 
which can properly be embodied in an instruction. Garfield v. State, 
(1881) 74 Ind. 60. The viciousness of the instruction in question lies 
in its tendency to lead the jury to infer that the legal standard of 
ordinary care was raised by the circumstances recited, thus making 
possible the inference that a great but imdefined extent of care was 
required, whereas all that the law exacted was the ordinary care which 
the situation demanded, or such care as it is to be assumed that an 
ordinarily prudent man would exercise in the circumstances, were the 
risk his own.^ 

In this case the acts and omissions which the complaint charged as 
negligent were various, so that the question of what was ordinary care 
arose in a niunber of wajrs, and we can only conclude, in view of the 
misleading character of the instruction imder consideration, that 
prejudicial error has intervened 

Judgment reversed, and a new trial ordered,* 

* " But it would savor too much of refinement to hold that there is any practical 
inaccuracy in saying that one driving a high-powered automobile must exercise a 
greater care toward others on a state highway than one plodding along a country 
road with an ox team." Ru^, C. J., in Com. t;. Horsfall, 213 Mass. 232, 235. 

* " The rule^ that due dihgenoe is such attention and effort applied to a given 
case as the ordmary prudent man would i>ut forth imder the same circumstances, 
seems to meet the aemands of every conceivable case. . . . The ratio of diligence 
to circiunstances being thus fixed, the two extremes may change to an iimnite 
extent without deetroyins the ratio, and without giving rise to what we term 
ne^genoe. The bailee who imdertakes the carriage of stone for the paving of a 
street is held to the rule that he must use such attention and effort as the ordinary 
prudent man would use imder like circumstances." 

" The bailee, who undertakes to repair a delicate watch, is held to the rule that 
he must use such attention and effort as the ordinary prudent man would use under 
the same circumstances. The contract of the watchmaker is the same, relatively, 
as that of the hod-carrier. Each contracts to provide the reasonable ordinary skill 
and attention which a man in his position would exercise under like circumstances. 
The ratio^ proportion, or correspondence of diligence to circumstances, of care to 
surroundm^, is fixed and identical. And in determining a question of diligence or 
ne^genoe m either case, it would be only necessary to apply the same rule to 



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SECT. III.] TRACT V. WOOD 83 

TRACY V. WOOD 

United States CiRcxnT Court, District op Rhode Island, 
November Term, 1822. 

Reported in 3 Mason (U. S. Circuit Court), 132. 

Assumpsit for negligence in losing 764^ doubloons, intrusted to 
the defendant to be carried from New York to Boston, as a gratuitous 
bailee. The gold was put up in two distinct bags, one within the 
other, and at the trial, upon the general issue, it appeared that the de- 
fendant, who was a money broker, brought them on board of the 
steamboat bound from New York to Providence; that in the morning 
while the steamboat lay at New York, and a short time before sailing, 
one of the bags was discovered to be lost, and that the other bag was 
left by the defendant on a table in his valise in the cabin, for a few mo- 
ments only, while he went on deck to send information of the supposed 
loss to the plaintiffs, there being then a large number of passengers on 
board, and the loss being publicly known among them. On the de- 
fendant's return the second bag was also misfflng and after every 
search no trace of the manner of the loss could be ascertained. The 
valise containing both bags was brought on board by the defendant on 
the preceding evening, and put by him in a berth in the forward cabin. 
He left it there all night, having gone in the evening to the theatre, 
and on his return having slept in the middle cabin. The defendant 
had his own money to a considerable amount in the same valise. 
There was evidence to show that he made inquiries on board, if the 
valise would be safe, and that he was informed, that if it contained 
articles of value, it had better be put into the custody of the captain's 
clerk in the bar, imder lock and key. There were many other circum- 
stances in the case. The argument at the trial turned wholly on the 
question of gross negligence, and all the facts were fully commented 
on by counsel. But a^^ case is intended only to present the discus- 
sion on the questioi^ oflaw, it is not thought necessary to recapitulate 
them.^ 

Story, J., after summing up the facts, said, I agree to the law as 
laid down at the bar, that in cases of bailees without reward, they are 

varying circumstances and persons, to demand the same ratio between var3ang 
extremes. And it is not too much to assert that all the perplexitv and misunder- 
standmg on the subject oi diligence and negligence are due to the habit of con- 
foimding the specific acts and circimistances, which must always vary, with the 
ratio or relation between them, which remains always the same. It is true that 
there may be different ratios of effort and attention to the circimistanoes and to the 
results desired. A man may contract to furnish the hi^est skill, the most perfect 
means and appliances, the most assiduous attention in the accomplishment of a 
specific end. But, when an individual so contracts, there is the element of special 
or posOive intention introduced, which takes the case out of the category of^ dili- 
gence, and renders such a contract a special and extraordinarv one. The law never 
requires such a special, positive intention. . . .''6 Albany Law Joum. 313, 314. 
^ Arguments omitted. 



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84 TRACY V. WOOD [CHAP. II. 

liable only for gross negligence. Such are depositaries, or persons re- 
ceiving deposits without reward for their care; and mandataries, or 
persons receiving goods to carry from one place to another without 
reward. The latter is the predicament of the defendant. He imder- 
took to carry the gold in question for the plaintiff, gratuitously, from 
New York to Providence, and he is not responsible unless he has been 
guilty of gross negligence. Nothing in this case arises out of the per- 
sonal character of the defendant, as broker. He is not shown to be 
either more or less negUgent than brokei*s generally are; nor if he was, 
is that fact brought home to the knowledge of the plaintiffs. They 
confided the money to him as a broker of ordinary diligence and care, 
having no other knowledge of him; and, therefore, no question arises 
as to what would have been the case, if the plaintiffs had known him 
to be a very careless or a very attentive man. Jones' Bail. 46. The 
language of the books, as to what constitutes gross negligence, or not, 
is sometimes loose and inaccurate from the general manner in which 
propositions are stated. When it is said, that gross negligence is equiv- 
alent to fraud, it is not meant that it cannot exist without fraud. 
There may be very gross negligence in cases where there is no pretence 
that the party has been guilty of fraud, though certainly such negli- 
gence is often presumptive of fraud. In determining what is gross 
negligence, we must take into consideration what is the nature of the 
thing bailed. If it be of little value, less care is required than if it be 
of great value. If a bag of apples were left in a street for a short time, 
without a person to guard it, it would certainly not be more than 
ordinary neglect. But if the bag were of jewels or gold, such conduct 
would be gross negligence. In short, care and diligence are to be pro- 
portional to the value of the goods, the temptation and faciUty of 
stealing them, and the danger of losing them. So Su* William Jones 
lays down the law. " Diamonds, gold, and precious trinkets," says 
he, " ought from their nature to be kept with peculiar care, under lock 
and key; it would, therefore, be gross neghg%ce in a depositary to 
leave such deposit in an open antechamber; BXid%rdinary neglect, at 
least, to let them remain on the table, where they might possibly tempt 
his servants." Jones' Bail. 38, 46, 62. So in Smith v. Home, 2 
Moore's R. 18, it was held to be gross negligence in the case of a car- 
rier, under the usual notice of not being responsible for goods above 
£5 in value, to send goods in a cart with one man, when two were 
usually sent to see to the delivery of them. So in Booth v. Wilson, 1 
Bam. & Aid. 59, it was held gross negUgence in a gratuitous bailee to 
put a horse into a dangerous pasture. In Batson v. Donovan, 4 Bam. 
& Aid. 21, the general doctrine was admitted in the fullest terms. It 
appears to me that the tme way of considering cases of this nature is, 
to consider whether the party has omitted that care which bailees, 
without hire, or mandataries of ordinary pmdence usually take of 
property of this nature. If he has, then it constitutes a case of gross 



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SECT. III.] TRACY V. WOOD 85 

negligence. The question is not whether he has omitted that care, 
which very prudent persons usually take of their own property, for the 
omission of that would be but sKght negligence; nor whether he has 
omitted that care which prudent persons ordinarily take of their own 
property, for that would be but ordinary negUgence : but whether there 
be a want of that care, which men of conmion sense, however inatten- 
tive, usually take, or ought to be presimied to take of their property, 
for that is gross negUgence. The contract of bailees without reward 
is not merely for good faith, but for such care as persons of common 
prudence in their situation usually bestow upon such property. If 
they omit such care, it is gross negUgence. 

The present is a case of a mandatary of money. Such property is 
by all persons, negUgent as well as prudent, guarded with much greater 
care than common property. The defendant is a broker, accustomed 
to the use and transportiation of money, and it must be presumed he is 
a person of ordinary diUgence. He kept his own money in the same 
valise; and took no better care of it than of the plaintiff's. StiU if the 
jury are of opinion that he omitted to take that reasonable care of the 
gold which bailees without reward in his situation usuaUy take, or 
which he himself usually took of such property, imder such circiun- 
stances, he has been guilty of gross negUgence. 

Verdict for the plaintiffs for $5700, the amount of one hag of the gold; 
for the defendant as to the other hag} 

^ A fuller statement of the views of the learned judge may be foimd in the 
extracts, which follow, from his work on Bailments: 

" Section 11. [On the subject of the various degrees of care or diligence which 
are recognized in the common law.] . . . There may be a high degree of diligence, 
a conmion degree of diligence, and a slight degree of diligence: ..." 

'' Common or ordinary diligence is that degree of diligence wnich men in general 
exact in respect to their own concerns. . . . That may be said to be common 
or ordinary diligence, in the sense of the law, which men of common prudence 
generally exercise about their own affairs in the age and coimtry in which they 

" Section 16. Having thus ascertained the nature of ordinary diligence, we may 
now be prepared to decide upon the other two degrees. High or great diligence is 
of course extraordinary diUgence, or that which very prudent persons take of their 
own concerns; and low or slight diligence is that which persons of less than com- 
mon prudence, or indeed of any prudence at all, take of their own concerns. Sir 
William Jones considers the latter to be the exercise of such diligence as a man of 
common sense, however inattentive, takes of his own concerns. Perhaps this is ex- 
pressing the measure a little too loosely; for a man may possess common sense, 
nay, uncommon sense, and yet be so grossly inattentive to his own concerns as to 
deserve the appellation of having no prudence at all. The measure is rather to be 
drawn from the diligence which men, habitually careless or of little prudence (not 
* however inattentive ' they may be), generally take in their own concerns." 

" Section 17. Having, then, arrived at the three degrees of diligence, we are 
naturally led to those of negli^nce, which correspond thereto; for negligence may 
be ordinary, or less than ordmary, or more than ordinary. Ordinary negligence 
may be denned to be the want of ordinary diligence, and shght negligence to be the 
want of great diligence, and gross negligence to be the want of slight diligence. For 
he who is only less diligent than very careful men cannot be said to be more than 
slightly inattentive; he who omits ordinary care is a little more ne^gent than men 
ordinarily are; and he who omits even slight diligence fails in the lowest degree of 



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86 DOLPHIN V. WORCESTER STREET R. CO. [CHAP. II. 

DOLPHIN V. WORCESTER STREET R. CO. 

Supreme Judicial Court, Massachusetts, October 18, 1905. 

Reported in 189 MaeaachusetU Reports, 270. 

Action of tort under Revised Laws, chapter 111, section 267, for 
the death of a passenger on a street railway.^ 

prudence, and is deemed grossly negligent. . . " Story on Bailments (8th ed.)» 
§i 11, 16, 17. 

See also Redington v. Pacific Co., 107 Gal. 317, .323-324; Belt Line R. Co. v. 
Banicki, 102 111. App. 642; Union R. Co. v, Henry, 36 Kan. 565; French t;. Buffalo 
R. Co., 2 Abb. Dec. 196, 200-201, 4 Keyes 108, 113-114: Cederson v. Navigation 
Co., 38 Or. 343; Lockwood v. Belle City R. Co., 92 Wis. 97, 111-113; Astin v. 
Chicago R. Co., 143 Wis. 477. 

" The theory that there are three degrees of neglicence described by the terms 
slight, ordinary, and gross, has been introduced into the conmion law from some of 
the commentators on the Roman law. It may be doubted if these terms can be 
usefully applied in practice. Their meaning is not fixed, or capable of being so. 
One degree, thus described, not only may be confounded with another, but it is quite 
impracticable exactly to difrtinguish them. Their signification necessanly varies 
according to circumstances, to whose influence the courts have been forced to 

K'eld, until there are so many real exceptions that the rules themselves can scarcely 
; said to have a genend operation, in Storer v, Gowen^ 18 Maine, 177, the Su- 
preme Court of Maine says: ' How much care wiU, in a given case, relieve a party 
from the imputation of gross negligence, or what omission wiU amoimt to the 
charge, is necessarily a question of fact, depending on a great varietv of circum- 
stances which the law cannot exactly define.' Mr. Justice Story, Bailments, § 11, 
says: ' Indeed, what is common or ordinary diligence is more a matter of fact than 
of law.' If the law furnishes no definition of the terms gross neglipence, or ordinary 
negligence, which can be applied in practice, but leaves it to the jury to determine, 
in each case, what the duty was, and what omissions amount to a breach of it, it 
would seem that imperfect and confessedly unsuccessful attempts to define that 
dutv had better be abandoned. 

''Recently, the ludges of several courts have expressed their disapprobation of 
these attempts to fix the degrees of diligence by legal definitions, and have com- 
plained of the impracticability of applying them. Wilson t;. Brett. 11 Meeson and 
Wels. 113; Wyldt;. Pickford, 8 ibid. 443, 461, 462; Hinton v. Dibbin, 2 Q. B. 646, 
651. It must be confessed that the difficulty in defining noss negligence, which is 
apparent in perusing such cases as Tracy et al. t;. Wood, 3 Mason 132. and Foster v. 
The Essex Bank, 17 Mass. 479, would alone be sufficient to justify these. com- 

Elaints. It may be added that some of the ablest commentators on the Roman 
iw, and on the civil code of France have wholly repudiated this theory of three 
degrees of diligence, as unfounded in principles of natural justice, useless in prac- 
tice, and presenting inextricable embarrassments and difficulties. See TouUier's 
Droit Civil, 6th vol., p. 239, etc.; 11th vol., p. 203, etc.; Makeldey, Man. Du 
Droit Romain, 191." Curtis, J., in Steamboat v. King, 16 How. 469, 474 (injiury 
to gratuitous passeng^). 

^* Confusion has arisen from regarding negligence as a positive instead of a nega- 
tive word. It is really the absence of such care as it was the duty of the defendant 
to use. A bailee is only bound to use the ordinary care of a man, and so the absence 
of it is caUed gross negligence. A person who undertakes to do some work for re- 
ward to an article must exercise the care of a skilled workman, and the absence of 
such care in him is negligence. Gross, therefore, is a word of description, and not 
a definition; and it would have been only introaucins a source of confusion to use 
the expression ^ross ne^gence, instead of the equivalent, a want of due care and 
skill in navigatmg the vemel, which was again and again used by the Lord Chief 
Justice in his summing up." WiUes, J., in Grill v. General Collier Co., L. R. 1 C. P. 
600. 

As to the standard for physicians, see McNevins v. Lowe, 40 HI. 209; Small v, 
Howard, 128 Mass. 131; Lukai;. Lowrie, 171 Mich. 122; Booth v. Andrus, 91 Neb. 
810; McCandless v, McWha. 22 Pa. St. 261. 

* Statement rewritten. Only part of case is given. 



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SECT, ni.] DOLPHIN V. WORCESTER STREET R. CO. 87 

The material portions of the statute are as follows: — 

" If a corporation which operates a railroad or a street railway, by 
reason of its negligence or by reason of the unfitness or gross negU- 
gence of its agents or servants, while engaged in its business,^ causes 
the death of a passenger, or of a person who is in the exercise of due 
care and who is not a passenger or in the employ of such corporation, 
it shall be punished by a fine of not less than five hundred nor more 
than five ^ousand dollars, which shall be recovered by an indict- 
ment," and shall be paid to the executor or administrator, to the use 
of the widow and children or the next of kin. " Such corporation 
shall also be liable in damages in the sum of not less than five himdred 
nor more than five thousand dollars, which shall be assessed with 
reference to the degree of culpability of the corporation or of its ser- 
vants or agents, and shall be recovered in an action of tort ... by 
the executor or administrator of the deceased for the use of the persons 
hereinbefore specified in the case of an indictment. . . . But no 
executor or adoiinistrator shall, for the same cause, avail himself of 
more than one of the remedies given by the provisions of this section.'^ 

At the trial the plaintiff requested the following rulings: — 

" 6. When the duty of exercising the highest degree of care is in- 
cumbent upon the defendant, any failure upon the part of its servants 
to exercise that degree of care is gross negligence. 

" 7. The term ' gross ' in the allegation gross negligence, when used 
with reference to the degree of care required and not fulfill^, is merely 
an expletive, when the degree of care required is the very highest. 

" 8. There are no degrees of negUgence." 

The plaintiff excepted to the refusal of the judge to give the rulings 
requested, and to such parts of the charge as were in conflict with 
them. The defendant had a verdict, and the case is here on these 
exceptions. 

LoRiNG, J. . . . The judge was right in refusing to give the sixth 
ruling asked for. A failure to exercise the highest degree of care is 
slight negligence. 

3. The seventh ruling requested was wrong. The term " gross neg- 
ligence " in a case where the degree of care due is the highest degree 
of care means that there has been a gross failure to exercise that degree 
of care.* 

4. There are degrees of care in cases imder R. L. c. Ill, § 267, by 
force of that act.' Exceptions overruled, 

* The word gross was struck out by chap. 375, Acts of 1907, § 1. 

* Compare Martin i;. Boston R. Co., 205 Mass. 16; Devine v. New York R. Co., 
205 Mass. 416. 

* For other cases of statutory dea*ees of negligence, see Seaboard R. Co. v, Cau- 
then, 116 Ga. 422; Louisville R. Co. v. Long, 94 Ky. 410; Western Tel. Co. v. 
Reeves, 34 Okl. 468; Davis v, Raiht>ad Co., 63 S. C. 370. That the wanton and 
reckless disregard of consequences which makes a defendant liable at common law 
to a plaintiff not in the exercise of due care is something more than negligence 
gross in degree, see Birmingham R. Co. v, Pinckard, 124 Ala. 372; Denman v. 



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88 CLEVELAND ROLLING MILL CO. V. CORRIGAN [CHAP, n. 

CLEVELAND ROLLING MILL CO. v CORRIGAN 

Supreme Court, Ohio, February 26, 1889. 

Reported in 46 Ohio StaU Reports, 283. 

Error to Circuit Court of Cuyahoga County. 

The plaintiff below, John Corrigan, an infant under the age of 
fourteen, by his guardian, sued the Rolling Mill Company for dam- 
ages suffered while in the defendants' employ, and which he alleged 
were caused by their negUgence. 

The answer of the defendants alleged, among other defences, that 
the injury occurred solely through the plaintiff's fault. 

As to this ground of defence, the Court instructed the jury in part 
as follows: — 

It was the duty of the plaintiff to use ordinary care and prudence; 
just such care and pi-udence as a boy of his age, of ordinary care and 
prudence, would use under like or similar circumstances. You should 
take into consideration his age, the judgment and knowledge he 
possessed. Verdict and judgment for plaintiff. 

The Company filed its petition in error.^ 

Williams, J. The only questions presented in this case are those 
arising upon the special instructions given by the Court in response 
to the request of \he jury. These instructions, the plaintiff in error 
contends, are erroneous in their entirety and in detail. 

1. First, it is claimed that the Court erred in the statement of the 
plaintiff's duty, in the opening proposition of the charge, wherein the 
jury were instructed that " it was the duty of the plaintiff to use 
ordinary care,'' which the Court defined to be " just such care as boys 
of that age, of ordinary care and prudence, would use under like cir- 
cumstances," and that the jury " should take into consideration the 
age of the plaintiff, and the judgment and knowledge he possessed." 
We have found no decision of this Court upon the subject of the con- 
tributory negligence of infants, or the measure of care required of 
them. Elsewhere the decisions are conflicting. Each of threei differ- 
ent rules on the subject has found judicial sanction. One rule requires 
of children the same standard of care, judgment, and discretion, in an- 
ticipating and avoiding injury, as adults are boimd to exercise.^ An- 

Johnston, 85 Mich. 387; Banks v. Braman, 188 Mass. 367; Southern Mfg. Co. v, 
Bradley, 52 Tex. 687; Barlow v, Foster, 149 Wis. 613. 

1 Statement of facts abridged. Only so much of the case is given as relates to 
one point. Arguments omitted. 

« E. g., Neal v. Gillett, 23 Conn. 437 (child of 13; charge that age was not to be 
taken into account upheld). This is universally rejected. Lynch v. Nurdin, 1 
6. B. 29; Washington R. Co. v. Gladmon, 15 Wall. 401; Government R. Co. v, 
Hanlon, 53 Ala. 70; Chicago R. Co. v. Murray, 71 111. 601: IndianapoUs R. Co. r. 
Wilson, 134 Ind. 95; McMiUan v. Burlington R. Co., 46 la. 231; Kansas R. Co. 
V. Whipple, 39 Kan. 531; Lynch t;. Smith, 104 Mass. 52; Huff v. Ames, 16 Neb. 
139; Swift V. Staten Island R. Co., 123 N. Y. 645; Pennsylvania R. Co. v. Kelly, 
31 Pa. St. 372; Queen v. Dayton Coal Co., 95 Tenn. 458; Cook v. Houston Naviga- 
tion Co., 76 Tex. 353; Roth v. Union Depot Co., 13 Wash. 525. 



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SECT. Ill,] CLEVELAND KOLUNG MILL CO. V. CORRIGAN 89 

other wholly exempts small children from the doctrine of contributory 
negligence. Between these extremes a third and more reasonable rule 
has grown into favor, and is now supported by the great weight of 
authority, which is, that a child is held to no greater care than is usu- 
ally possessed by children of the same age. Authors and judges, 
however, do not always employ the same language in giving expression 
to the rule. In Beach on Contributory Negligence, sec. 46, it is thus 
exjH'essed : " An infant plaintiff who, on the one hand, is not so young 
as to escape entirely all legal accountability, and on the other hand is 
not so mature as to be held to the responsibiUty of an adult is, of 
course, in cases involving the question of negUgence, to be held re- 
sponsible for ordinary care, and ordinary care must mean, in this 
connection, that degree of care and prudence which may reasonably 
be expected of a child." The decisions enforcing this rule, that chil- 
dren are to be held responsible only for such degree of care and pru- 
dence as may reasonably be expected of them, taking due account of 
their age and the particular circumstances, are very numerous. " It 
is well settled," says Mr. Justice Himt in Railroad Company v. Stout, 
17 Wall. 657, " that the conduct of an infant of tender years is not to 
be judged by the same rule which governs that of an adult. . . . The 
care and caution required of a child is according to his maturity and 
capacity only, and this is to be determined in each case by the circimi- 
stances of that case." In Shearman & Redfield on Negligence, sec. 73, 
it is said to be " now settled by the overwhehning weight of authority 
that a child is held, as far as he is personally concerned, only to the 
exercise of such care and discretion as is reasonably to be expected 
from children of his own age." Another author says, " A child is only 
bound to exercise such a degree of care as children of his particular 
age may be presumed capable of exercising." Whittaker's Smith on 
Neg., 411. 

This rule appears to rest upon sound reason as well as authority. 
To constitute contributory negUgence in any case there must be a 
want of ordinary care and a proximate connection between such want 
of care and the injury complained of; and ordinary care is that de- 
gree of care which persons of ordinary care and prudence are accus- 
tomed to use under similar circumstances. Children constitute a class 
of persons of less discretion and judgment than adults, of which all 
reasonably informed men are aware. Hence ordinarily prudent men 
reasonably expect that children will exercise only the care and pru- 
dence of children, and no greater degree of care should be required of 
them than is usual under the circumstances among careful and pru- 
dent persons of the class to which they belong. We think it a sound 
rule, therefore, that in the application of the doctrine of contributory 
negUgence to children, in actions by them or in their behalf for injuries 
occasioned by the negUgence of others, their conduct should not be 
judged by the same rule which governs that of adults, and while it is 



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90 STONE V. DRY DOCK R. CO. [CHAP. n. 

their duty to exercise ordinary care to avoid the injuries of which they 
complain, ordinary care for them is that degree of care which children 
of the same age, of ordinary care and prudence, are accustomed to 
exercise imder similar circumstances. 

That portion of the charge of the Court under discussion is in sub- 
stantial conformity to this conclusion. The care and prudence which 
a boy of the plaintiff's age of ordinary care and prudence " would use 
imder like and similar circumstances/' as expr^sed in the charge, is 
such care as " is reasonably to be expected from a boy of his age," or 
** which boys of his age usually exercise," as the books express it. No 
different effect is given to the charge of which the plaintiff in error 
can complain, by the direction to the jury to take into consideration 
the age of the boy " and the judgment and knowledge he possessed." 
This did not diminish the degree of care required by the previous 
portion of the instruction. Judgment affirmed.^ 



STONE V. DRY DOCK R. CO. 

Court of Appeals, New York, June 4, 1889. 

Reported in 115 New York Reports, 104. 

Appeal from judgment of the General Term of the Supreme Court 
in the first judicial department, entered upon an order made October 
26, 1887, which aflSrmed a judgment in favor of defendant, entered 
upon an order nonsuiting plaintiff on trial. 

This was an action to recover damages for the alleged negligence in 
causing the death of plaintiff's intestate, a child of seven years and 
three or foiu* months old. 

The facts, so far as material, are stated in the opinion.* 

1 Smith V. Pittsburgh R. Co., 90 Fed. 783; Warble v. Sulzbeiwr, 185 Ala. 603; 
Denver Tramway Co. v. Nicholas, 35 Col. 462; Rohlofif v. Fair Haven R. Co., 76 
Conn. 689; Goldstein v. People's R. Co., 5 Pennewill, 306; Elwood R. Co. v. Ross, 
26 Ind. App. 258; Wyman v. Berry, 106 Me. 43; Munn t;. Reed, 4 AH. 431; 
Rasmussen v. Whipple, 211 Mass. 546 (but see Angelary v. Springfield R. Co., 213 
Mass. 110); Lucarelli v. Boston R. Co., 213 Mass. 454; Strudgeon v. Villas, 107 
Mich. 496; Consolidated Traction Co. v. Scott. 58 N. J. Law, 682; Swift t;. Staten 
Island R. Co., 123 N. Y. 645: Laferty v. Third Ave. R. Co., 176 N. Y. 594: Lake 
Erie R. Co. v, Mackey, 53 Ohio St. 370: Box & Label Co. v. Caine, 11 Ohio Cir. Ct. 
R. N. 8. 81 (Afif*d 78 Ohio St. 405) ; Dubiver v. City R. Co., 44 Or. 227; Rachmel v. 
Clark, 205 Pa. St. 314; Parker v. Washington R. Co., 207 Pa. St. 438 (but com- 
pare Mulligan v. Burrough, 243 Pa. St. 361); Texas R. Co. v, Phillips, 91 Tex. 278; 
Christensen v. Oregon R. Co., 29 Utah, 192; Blankenship v, Chesapeake R. Co., 
94 Va. 449; Deputy v. Kimmell, 73 W. Va. 595 Accord. 

Children are seldom made defendants in actions for neghgence. Most of the dis- 
cussions as to the standard of care required of children are to be found in cases 
where the children, or their parents or representatives, were plaintiffs seeking to 
recover for damage to the children alleged to be caused by defendant's neghgence, 
and where the defendant contended that the action was barred by the contribu- 
tory negli^nce of the child. A good discussion where defendant was an infant may 
be found m Briese v. Maechtle, 146 Wis. 89. 

' Arguments and part of opinion omitted. 



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SECT. III.] STONE V. DRY DOCK R. CO. 91 

Andrews, J. The nonsuit was placed on the ground that an infant 
seven years of age was sui juris, and that the act of the child in cross- 
ing the street in front of the approaching car was negUgence on her 
party which contributed to her death, and barred a recovery. We 
think the case should have been submitted to the jury. 

The n^Iigence of the driver of the car is conceded. His conduct 
in driving rapidly along Canal Street at its intersection with Orchard 
Street, without looking ahead, but with his eyes turned to the inside 
of the car, was grossly negligent. Mangam v. Brooklyn R. R. Co., 
38 N. Y. 455; Baihroad Co. v. Gladmon, 15 Wall. 401. It cannot be 
asserted as a proposition of law that a child just passed seven years 
of age is sid juris, so as to be chargeable wi^ n^ligence. The law 
does not define when a child becomes sui juris. Kunz v. City of Troy, 
104 N. Y. 344. Infants under seven years of age are deemed inca- 
pable of coomiitting crime, and by the common law such incapacity 
presumptively continues until the age of fourteen. An infant between 
those ages was regarded as within the age of possible discretion, but 
on a criminal charge against an infant between those years the burden 
was upon the prosecutor to show that the defendant had intelligence 
and maturity of judgment sufficient to render him capable of harbor- 
ing a criminal intent. 1 Arch. 11. The Penal Code preserves the rule 
of the conunon law except that it fixes the age of twelve instead of 
foiu*teen as the time when the presumption of incapacity ceases. Penal 
Code, §§ 18, 19. 

In administering civil remedies the law does not fix any arbitrary 
period when an infant is deemed capable of exercising judgment and 
discretion. It has been said in one case that an infant three or four 
years of age could not be regarded as sui juris, and the same was said 
in another case of an infant five years of age. Mangam v. Brooklyn 
R. R., supra; Fallon v. Central Park, N. & E. R. R. R. Co., 64 N. Y. 
13. On the other hand, it was said in Cosgrove v. Ogden, 49 N. Y. 
255, that a lad six years of age could not be assumed to be incapable 
of protecting himself from danger in streets or roads, and in another 
case that a boy of eleven years of age was competent to be trusted in 
the streets of a city. McMahon v. Mayor, Ac, 33 N. Y. 642. From 
the nature of the case it is impossible to prescribe a fixed period when 
a child becomes sui juris. Some children reach the point earlier than 
others. It depends upon many things, such as natural capacity, physi- 
cal conditions, training, habits of life, and surroundings. These and 
other circumstances may enter into the question. It becomes, there- 
fore, a question of fact for the jury where the inquiry is material 
imless the child is of so very tender years that the Court can safely 
decide the fact. The trial Court misapprehended the case of Wendell 
V, New York Central Railroad Company, 91 N. Y. 420, in supposing 
that it decided, as a proposition of law, that a child of seven years was 
capable of exercising judgment so as to be chargeable with contribu- 



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92 STONE V. DRY DOCK R. CO. [CHAP. H. 

tory negligence. It was assumed in that case, both on the trial and on 
appeal, that the child whose conduct was in question was capable of 
understanding, and did understand the peril of the situation, and 
the evidence placed it beyond doubt that he recklessly encountered 
the danger which resulted in his death. The boy was familiar with 
the crossing, and, eluding the flagman who tried to bar his way, at- 
tempted to run across the track in front of an approaching train in 
plain sight, and unfortunately sUpped and fell, and was run over and 
killed. It appeared that he was a bright, active boy, accustomed to go 
to school and on errands alone, and sometimes was intrusted with the 
duty of driving a horse and wagon, and that on previous occasions he 
had been stopped by the flagman while attempting to cross the track 
in front of an approaching train, and had been warned of the danger. 
The Court held, upon this state of facts, that the boy was guilty of 
culpable negligence. But the case does not decide, as matter of law, 
that all children of the age of seven years are sui juris. 

We are inclined to the opinion that in an action for an injury to a 
child of tender years, based on negUgence, who may or may not have 
been sui juris when the injury happened, and the fact is material as 
bearing upon the question of contributory negligence, the burden is 
upon the plaintiff to give some evidence that the party injiu-ed was not 
capable, as matter of fact, of exercising judgment and discretion. 
This rule would seem to be consistent with the principle now well 
settled in this State, that in an action for a personal injury, based on 
negligence, freedom from contributory negligence on the part of the 
party injured is an element of the cause of action. In the present 
case the only fact before the jury bearing upon the capacity of the 
child whose death was in question was that she was a girl seven years 
and three months old. This, we think, did not alone justify an infer- 
ence that the child was incapable of exercising any degree of care. But, 
assuming that the child was chargeable with the exercise of some de- 
gree of care, we think it should have been left to the jury to determine 
whether she acted with that degree of prudence which might reason- 
ably be expected, under the circumstances, of a child of her years. 
This measure of care is all that the law exacts in such a case. Thurber 

V. Harlem, B. M. & F. R. R. Co., 60 N. Y. 335.i r ^ , ^ 

' ' Judgment reversed. 

1 Northern R. Co. t;. Heaton, 191 Fed. 24; Little Rock Traction Co. v. Nelson, 
66 Ark. 494 (boy ten years old); Quincy Gas Co. v. Bauman, 203 111. 295, 104 El. 
App. 600 (seven); Fishbum v. Burlington R. Co., 127 la. 483 (six); Kentucky 
Hotel Co. V. Camp, 97 Ky. 424 (seven); McMahon v. Northern R. Co., 39 Md. 
438 (six); Purcell v. Boston R. Co., 211 Mass. 79; Giaccobe v. Boston R. Co., 215 
Mass. 224 (seven); Godfrey v. Boston R. Co., 215 Mass. 432 (six); Weitzel v, 
Detroit R. Co., 186 Mich. 7 (nine); Ritscher v. Orange R. Co., 79 N. J. Law, 462 
(six); Verdon v. Automobile Co., 80 N. J. Law, 199 (seven); Citizen's R. Co. v. 
Bell, 26 Ohio Cir. Ct. R. 691 (seven) ; Galveston R. Co. v, Moore, 59 Tex. 64 (six) ; 
Robinson v. Cone, 22 Vt. 213 (three) ; McVoy v. Oakes, 91 Wis. 214 (seven) ; Frasera 
V. Tramways Co., 20 Sc. L. R. 192 (six); Plantza v. Glasgow, 47 Sc. L. R. 688 
(five) Accord. 



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SECT, nij ILLINOIS IRON AND METAL COMPANY V. WEBER 93 

ILLINOIS IRON AND METAL COMPANY v. WEBER 

Supreme Court, Illinois, April 16, 1902. 

Reported in 196 Illinois Reports, 526. 

Appeal by original defendants from the decision of the Appellate 
Court for the First District; 89 111. App. 368. 

Plaintiff was a newsboy, between eleven and twelve years old, and 
his stand was at Dearborn and Monroe streets in the city of Chicago. 
He was going from his home, about four miles distant, to his place of 
business. By permission of the driver, he got on a wagon loaded with 
brick. He stood up on the rear of the wagon behind the box, and held 
on to the hind end-gate of the wagon. The wagon was one of a pro- 
cession of loaded teams in a street-car track. The next wagon behind 
was owned by defendant. The end of the pole of defendant's wagon 
struck the plaintiff's leg, inflicting a serious wound. Plaintiff had 
been in the paper business since he was nine years old, and had been 
in the habit of riding down town on wagons. 

A few jurisdictions have an absolute rule as to children under seven. Govern- 
ment R. Co. V. Hanlon, 53 Ala. 70; Chicago R. Co. v. Tuohy, 196 111. 410; Reichle 
p. Transit Co., 241 Pa. St. 1 (six); Schnurr v. Traction Co., 163 Pa. St. 29; Dodd 
V. Gas Co., 95 S. C. 9. Also several jurisdictions rely on presumptions as to chil- 
dren between seven and fourteen (or sometimes twelve). Birmingham R. Co. v. 
Jones, 146 Ala. 277; City v, McLain, 67 Miss. 4; Hebert v. Hudson Electric Co., 
136 App. Div. 107; Rolin v. Tobacco Co., 141 N. C. 300; Dowlen v. Texas Power 
Co. (Tex. Civ. App.) 174 S. W. 674; City v. Shull, 97 Va. 419; Traction Co. v, 
Wilkinson, 101 Va. 394. See also (as to children over fourteen) Central R. Co. v. 
Phillips, 91 Ga. 526; Frauenthal v. Laclede Gas Co., 67 Mo. App. 1; Murphy 
V. Perlstein, 73 App. Div. 256; Travers v, Hartmann, 5 Boyce, 302. 

In Berdos v, Tremont Mills, 209 Mass. 489, 494, Rugg, J., says: " It is common 
knowledge that children imder the a^ of fourteen arelacking in prudence, fore- 
sight, and restraint, and that their curiosity and restlessness have a tendency to get 
them into positions of danger. There is some point in every life where these condi- 
tions are present in such degree as to deprive the child of capacity to assume risk 
intelligently, or to be guilty of negligence consciously. That pomt varies in dif- 
ferent children for divers reasons. There is no hard and fast rule that at any 
particular age a minor is presumed to be able to comprehend risks or to be capable 
of negligence. Extreme cases can be stated which obviously fall on one side or the 
other of the line. In some jurisdictions it has been held that prima facie a child 
imder fourteen years of age is presumed not to be capable of contributory negli- 
^nce. Tucker v. Buffalo Cotton Mills, 76 S. C. 539, and cases cited. Tutwfler 
Coal, Coke & Iron Co. v. Enslen, 129 Ala. 336. But the sounder doctrine seems to 
be that age ia an important though not decisive factor in determining capacity, 
and that the decision of that question is not helped or hampered by any legal 
presumption. This is the law of this Commonweiilth." 

Compare Jacobs v. Koehler Co., 208 N. Y. 416. 

In Kyle v. Boston R. Co., 215 Mass. 260, a boy five years and eleven months old, 
who ran in front of an approaching car was held negligent as a matter of law. It 
has generally been held tnat children imder six are not to be charged with negh- 
^nce. See City v. Lewis, 155 Ky. 832; Johnson v. City, 164 Mich. 251; Love v, 
Detroit R. Co., 170 Mich. 1; Eskildsen v. City, 29 Wash. 583. 

As to lower ages, see Mon^n v. Bridge Co., 5 Dill. 96; Louisville R. Co. v, Arp, 
136 Ga. 489; Indianapolis R. Co. v. Bordenchecker, 33 Ind. App. 138: Fink v. 
City, 115 la. 641; Berry v. St. Louis R. Co., 214 Mo. 593. Compare Gfardner v. 
Grace. 1 F. & F. 359; Dorr v. Atlantic R. Co., 76 N. H. 160 (five and a half); 
Campbell v. Ord, 11 Sc. L. R. 54; McGregor v. Ross, 20 Sc. L. R. 462. 



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94 ILLINOIS IRON AND BiETAL COBiPANY V. WEBEft [CHAP. II. 

Under instructions, the substance of which is stated in the opinion, 
the jury found a verdict for plaintiff.^ 

Cartwright, J. . . . The first two instructions each directed the 
jury to find the defendant guilty, provided they should beUeve, from 
the evidence, the existence of certain facts. One of the essential facts 
which the law required to be foimd was that the plaintiff was in the 
exercise of ordinary care for his own safety, and each of those instruc- 
tions informed the jury that the fact was proved if he was in the exer- 
cise of ordinary care for a boy of his age. They directed the jury to 
return a verdict for the plaintiff if they found he was in the exercise of 
ordinary care for a boy of his age and the defendant was negligent and 
the injury resulted. That was not a correct rule of law, since the ques- 
tion of care was not to be determined alone by the plaintiff's age, but 
also from his inteUigence, experience, and ability to understand and 
comprehend dangers and care for himself. The case was one in which 
the defendant was entitled to correct instructions upon that question. 
It was a question whether plaintiff was not guilty of negUgence in 
riding where he did, in a procession of teams, outside of the box, be- 
hind the end-gate of the wagon. The position was a dangerous one, 
not provided or used for passengers or intended for such use. Plain- 
tiff had a right to ride on the wagon with the driver's consent, but it 
was his duty to use reasonable care for his own safety. There was a 
string of heavily loaded teams in the car tracks, where it was difficult, 
if not impossible, to turn out, and the difficulty and danger in stopping 
when one of a procession stops is matter of common knowledge. Cases 
cited as to the Uability of common carriers of passengers where a car 
is full and a passenger rides upon the platform have no bearing on 
this question. Passengers are accustomed to be upon platforms and 
are sometimes compelled to ride there, and different rules are applied 
to a conunon carrier from those governing parties not in that relation. 
There was no necessity whatever for the plaintiff assuming the posi- 
tion that he did. These facts were not controverted or in dispute, but 
are gathered from his own testimony. If the damage to the plaintiff 
was caused by his own negUgence in assuming such a position, he 
could not recover. In determining that question his age was to be 
taken into account, but it could not be said, as a matter of law, that ^ 
he was too young to exercise any care for his personal safety or that 
he was incapable of negligence. Unquestionably, he was capable of 
exercising some degree of judgment and discretion and some degree of 
care for his own safety. He had Uved in the city and had been engaged 
in business, and was accustomed to ride on wagons. Judge Thomp- 
son, in his Commentaries on Law of Negligence (vol. I, sect. 309), 
says: " Two lads of equal age and natural capacity, one of them 
raised in the country and the other in the city, might approach a 

* Statement abridged. Only so much of the opinion is given as relates to a 
single point. 



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SECT. III.] BXJLLOCIC V. BABCOCK 95 

given danger; and the one would be perfectly competent to care for 
hnnself while the other would be helpless in the face of it. Therefore, 
the capacity, the inteUigence, the knowledge, the experience, and the 
discretion of the child are always evidentiary circumstances, — cir- 
cimistances with reference to which each party has the right to intro- 
duce evidence, which evidence is to be considered by the jury." The 
rule established by oiu- own decisions is, that age is not the only ele- 
ment to be considered, but that inteUigence, capacity, and experience 
are also to be taken into accoimt. Weick v. Lander, 76 111. 93; City 
of Chicago v. Keefe, 114 Id. 222; Illinois Central Railroad Company 
V. Slater, 129 Id. 91. 

Reversed and remanded.^ 



BULLOCK V. BABCOCK 

Supreme Court op Judicature, New York, October, 1829. 

Reported in 3 Wenddl, 391. 

This was an action of trespass, assault, and battery. 

In 1816, the defendant, then being about twelve years of age, shoot- 
ing an arrow from A bow, struck the plaintiff and put out one of his 
eyes, the plaintiff being then between nine and ten years of age. The 
plaintiff and defendant were schoohnates. The boys attending the 
school were assembled near the school-house. One of them had a bow 
and arrow, with which he and the defendant had been shooting at a 
mark. Some remark was made by the plaintiff, when the defendant 
said, " I will shoot you," and took the bow and arrow from another 
boy who then held it. The plaintiff ran into the school-house and hid 
behind a fire-board standing before the fire-place in the school-room. 
The defendant followed to the door of the school-room, and saying, 

» Garrison v. St. Louis R. Co., 92 Ark. 437; De Soto Co. v. Hill, 179 Ala. 186 
(personal standard applied to a boy brighter than his age) ; JoUimore v, Connecti- 
cut Co„ 86 Conn. 314; Herrington v. aty, 125 Ga. 68; Elk Mills v. Grant, 140 Ga. 
727; Keller v. Gaskill, 9 Ind. App. 670; Cole v. Searfoes, 49 Ind. App. 334; Louis- 
ville R. Co. V. Allnutt, 150 Ky. 831; Van Natta v. Peoples R. Co., 133 Mo. 13; 
Spillane v. Missouri R. Co^ 135 Mo. 414; Moeller v. United R. Co., 242 Mo. 721; 
David V. West Jersey R. Co., 84 N. J. Law, 685; Marius v. Motor Co., 146 App. 
Div. 608; Gigoux v. County, 73 Or. 212; Bridger v, Asheville R. Co., 27 S. C. 456; 
North Texas Construction Co. v. Bostick, 98 Tex. 239; Kvne v. Southern R. Co., 
41 Utah, 368; Quinn v. Ross Car Co., 157 Wis. 543 Accord. As to experience, see 
Stem p. Ben^eck, 161 Mo. 146. 

Section 2901 of the Georgia Civil Code is as follows: — 

*^ Due care in a child of tender years is such care as its capacitor, mental and 
physical, fits it for exercising in the actual circumstances of the occasion and situa- 
tion imder investigation." 

In Harrington o. Mayor, 125 Ga. 58, 60, Lumpkin, J., said: ** The average child 
of its own age is not the standard by which to measure its legal diligence with 
exactness. ' Such care as the capacity of the particular child enables it to use 
natiu-ally and reasonably, is what the law requires.' " Compare Bleckley, C. J., in 
Western & Atlantic R. Co. v. Young, 81 Ga. 397, 416, 417. 



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96 BULLOCK V. BABCOCK [CHAP. U. 

" See me shoot that basket," discharged the arrow. At that moment 
the plaintiff raised his head above the fire-board, and the arrow struck 
him. There was a basket standing on a desk in the direction that the 
arrow was aimed. When the arrow was shot, there were a nmnber of 
boys in the school-room. There had been no quarrel between the boys. 
The plaintiff, however, on entering the school-house was frightened, 
and said he was afraid he would be shot. The plaintiff suffered great 
pain for two months, became blind of one eye, and for five years was 
disabled from attending school in consequence of the weakness of sight 
of the other eye. His mother became a widow; and when the plain- 
tiff was able to attend school, her poverty prevented his receiving an 
ordinary education. This suit was commenced in 1827, within a year 
after the plaintiff attained his age. 

The judge charged the jiuy that the shooting the arrow in the 
school-room where there were a number of boys assembled was an 
unlawful act; that it appeared to him to have been, at the least, 
grossly negligent and unjustifiable; and that, if the jury thought so, 
they ought to find a verdict for the plaintiff, with damages. The 
defendant excepted. The jury found for the plaintiff, with $180 
damages, and a motion was now made to set aside the verdict. 

By the Court, Marcy, J. It is not, I apprehend, necessary for us 
to say whether the judge erred or not in his remark to the jury that, 
under the circumstances of the case, the act of the defendant in shoot- 
ing the arrow in the school-room, where there were a number of schol- 
ars, was not lawful; for, if the act in itself was lawful, and there was 
not a proper care to guard against consequences injurious to others, 
the actor must be held responsible for such consequences. 

In ordinary cases, if the injury is not the effect of an unavoidable 
accident, the person by whom it is inflicted is liable to respond in dam- 
ages to the siiflferer. Where, in shooting at butts, the archer's arrow 
glanced and struck another, it was holden to be a trespass. Year- 
Book, 21 H. VII. fol. 28. So where a number of persons were lawfully 
exercising themselves at arms, one, whose gun accidentally went off, 
was held liable in trespass for the injury occasioned by the accident. 
Weaver v. Ward. Where, in a dark night, the defendant got on the 
wrong side of the road, and an injiuy ensued to the person of the plain- 
tiff, trespass for the damage was sustained. Leame v. Bray, 3 East, 
693. It is decided in the case of Wakeman v. Robinson, if the accident 
happen entirely without the fault of the defendant, or any blame being 
imputable to him, an action will not he. In that case, the blame im- 
putable to the defendant was, that, his horse being young and spirited, 
he used him without a ciu-b rein; that in his alarm he probably pulled 
the wrong rein; and that he ought to have continued on in a straight 
course. The blame fairly imputed to the defendant, it will be per- 
ceived, must have been slight indeed, as it certainly was in the case of 
the injury done by the glancing of the arrow when shooting at a mark 



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SECT, ni.] BULLOCK V. BABCOCK 97 

(a lawful act), and by the accidental discharge of the musket at a 
training; and yet, in each of these cases, an action for the injury was 
maintained. Unless a rule is to be appUed to this case different from 
that appUcable to a transaction between adults, the proof was most 
abundant to charge the defendant with the consequences of the injury. 
Infants, in the same manner as adults, are hable for trespass, slander, 
assault, &c.^ Bing. on Infancy, 110; 8 T. R. 336; 16 Mass. Rep. 389; 

^ The liability of an infant for his torts is universally recognized. 

Trespass. Y. B. 35 Hen. VI. f. 11, pi. 18; Bumard v, H^gis, 14 C. B. n. s. 45; 
Nealt;.Gillett,23Conn.437; Wilson v. Garrard. 59 lU. 51 ; Peterson v. HafFner, 69 
Ind. 130; Scott v, Watson, 46 Me. 362; Marshall v. Wing, 50 Me. 62; Sikes v. 
Johnson, 16 Mass. 389; School District v. Bragdon, 23 N. H. 507; Campbell v. 
Stakes, 2 Wend. 137; Hartfield v. Roper, 21 Wend. 615, 620; Tifft v. Tifft, 4 
Denio, 175; Conklin v, Thompeon, 29 Barb. 218; Huchtme v, E^igel, 17 Wis. 230; 
Vosburg V. Putney. 80 Wis. 523; Vosburg v. Putney, 86 Wis. 278. 

Conversion. Mills v. Graham, 1 B. & P. N. R. 140; Bristow v. Clark, 1 Esp. 171 ; 
Vasse V. Smith, 6 Cranch, 226; Oliver v. McClellan, 21 Ala. 675; Ashlock v. Vivell, 
29 111. App. 388; Lewis v. Littlefield, 15 Me. 233; Caswell v. Parker, 96 Me. 39 
(semble); Homer v. Thwing, 3 Pick. 492; Walker v. Davis, 1 Gray, 506; Wheeler 
Co. V. Jacobs, 2 Misc. 236; Green v. Spernr, 16 Vt. 390; Baxter v. Bush, 29 Vt. 465. 

DeceU. Fitts v. HaU, 9 N. H. 441; Word v. Vance, 1 N. & McC. 197. 

Defamation. Hodsman v. Grissell, Noy, 129; Drane v, Pawley, 8 Ky. Law Rep. 
530; Fears v. Riley, 148 Mo. 49. 

Negligence. Jennings v. Rundall, 8 T. R. 335; Dixon v. Bell, 1 Stark. 287; 
Marsh v. Loader, 14 C. B. n. s. 535; Latt v. Booth, 3 Car. &. K. 292; Humphrey t;. 
Douglass, 10 Vt. 71 Accord. 

In Scott V. Watson, swpra^ Appleton. J., said: " Nor is his infancv any defence, 
for infants are hable tor torts. . . . The parent is not answerable for the torts of 
his minor child, conunitted in his absence and without his authority or approval, 
but the minor is answerable therefor. Tifft v. Tifft, 4 Denio, 177. The minor is not 
exempt from liabihty, though the trespass was conunitted by the express conmiand 
of the father. Humphrey v. Douglass, 10 Vt. 71. 

** Nor can the defendant derive any support from the scriptural injunction to 
children of obedience to their parents, invoked in defence. No such construction 
can be given to the command, ^ Children, obey your parents in the Lord, for this is 
right,' as to sanction or justify the trespass of the son upon the land of another, and 
t& asportation of his crops, even thou^ done by the express commands of ius 
father. The defence is as unsound in its theology as it is baseless in its law." 
gmith V. Kron. 96 N. C. 392, 397; O'Leary v. Brooks, 7 N. D. 554; Humphrey v. 
r)oi«lass, 10 Vt. 71; Huchting v. Engel, 17 Wis. 230 Acctyrd.] 

May, J., dissented, saving: " I am not quite satisfied with either the law or the 
theologv of the opinion m this case. That sins of ignorance may be winked at, is 
both a aictate of reason and of Scripture. It is true, as a genertJ rule, that infants 
who have arrived at the age of discretion are liable for their tortious acts. But. for 
the protection of infants, ought not the rule to be limited to cases where the imant 
acts under such circumstances that he must know or he presumed to know that the 
acts which he commits are unauthorized and wrons, wnen it appears that in the 
commission of the acts he was imder the control and direction of his father ? Will 
not an opposite doctrine tend to encourage disobedience in the child, and thus be 
subversive of the best interests of the community 7 Will it not also tend to subject 
him to embarrassment and insolvency when he shall arrive at f uU age 7 If all the 
members of a family imder age are to be held liable in trespass or trover for the food 
which they eat, when that food is in fact the property of another, but, being set be- 
fore them, they partake of it, in isnorance of such fact^ by the command or direc- 
tion of the parent, and imder the belief that it is his, will not such a doctrine be in 
conflict witn the principle that the common law is intended as a shield and protec- 
tion against the improvidence of infancy 7 While the decided cases upon this 
subject seem to be limited to cases of contract, is there not the same reason for ex- 
tending it, and applying it to cases like the one before us 7 In all the cases which I 
have examined m which infants have been held liable, the proof shows acts of 



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98 METROPOLITAN RAILWAY COMPANY V. JACKSON [CHAP. II. 

2 Inst. 328. Where infants are the actors, that might probably be 
considered an unavoidable accident which woxild not be so considered 
where the actors are adults; but such a distinction, if it exists, does 
not apply to this case. The liabiUty to answer in damages for tres- 
pass does not depend upon the mind or capacity of the actors; for 
idiots and limatics, as we see by the case reported in Hobart, are 
responsible in the action of trespass for injuries inflicted by them. 
1 Chit. PI, 66. Motion for a new trial denied.^ 



Section IV 
Pboof OF Neolioence * 

METROPOLITAN RAILWAY COMPANY v. JACKSON 

In the House of Lords, December 13, 1877. 

Reported in 3 Appeal dues, 193. 

The Lord Chancellor (Lord Cairns) : • — 

My Lords, in this case an action was brought by the respondent 
against the MetropoUtan Railway Company for negligence in not 
carrying the respondent safely as a passenger on the railway, and for 
injuring his thumb by the act of one of the appellants' servants in 
suddenly and violently closing the door of the railway carriage. 

The question is, Was there at the trial any evidence of this negli- 
gence which ought to have been left to the jury ? The Court of Com- 
mon Pleas, consisting of Lord Coleridge, Mr. Justice Brett, and Mr. 
Justice Grove, were of opinion that there was such evidence. The 
Court of Appeal was equally divided; the Lord Chief Justice and 
Lord Justice of Appeal Amphlett holding that there was evidence, the 
Lord Chief Baron and Lord Justice of Appeal Bramwell holding that 
there was not. 

positive wrong committed under circumstances where the infant must have known 
the nature and character of his acts. If the doctrines of the opinion are to prevail 
in a case like this, then the conmion law is but the revival of the old doctrine that 
the parents, by eating sour grapes, have set the children's teeth on edge. The 
rule that a servant who acts in ignorance of the rights of his principal is to be held 
liable for his acts, does not fall within the principles for which I contend." 

» Welch V. Durand, 36 CJonn. 182; Flinn v. State, 24 Ind. 286; Peterson v. HaflF- 
ner, 59 Ind. 130: Mercer v. Corbin, 117 Ind. 450; Commonwealth v. Lister, 15 
Phila. 405; Vosburg v. Putney, 80 Wis. 523; Vosburg v. Putney, 86 Wis. 278 
Accord. 

' The topics dealt with in this section do not concern the substantive law of 
tort. They fall rather under the heads of procedure and evidence. But, without 
some knowledge of these particular subjects, it is difficult to understand the ground 
of decision in some of the cases on the general subject of negligence. 

' Statement, arguments, and parts of opinions omitted. 



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SECT. IV.] METROPOUTAN RAILWAY COMPANY V. JACKSON 99 

The facts of the case are very short. The respondent in the eve- 
ning of the 18th of July, 1872, took a third-class ticket from Moorgate 
Street to Westboume Park, and got into a third-class compartment; 
the compartment was gradually filled up, and when it left King^s 
Cross all the seats were occupied. At Gower Street Station three 
persons got in and were obliged to stand up. There was no evidence 
to show that the attention of the company's servants was drawn to 
the fact of an extra number being in the compartment; but there was 
evidence that the respondent remonstrated at their getting in with the 
persons so getting in, and a witness who travelled in the same com- 
partment stated that he did not see a guard or porter at Gower Street. 

At Portland Road, the ne^ station, the three extra passengers still 
remained standing up in the compartment. The door of the compart- 
ment was opened and then shut; but there was no evidence to show 
by whom either act was done. Just as the train was starting, from 
Portland Road there was a rush,%nd the door of the compartment was 
opened a second time by persons tiering to get in. The respondent, 
who had up to this time kept his seat, partly rose and held up his 
hand to prevent any more passengers coining in. After the train had 
moved, a porter pushed away the people who were trying to get in, 
and slammed the door to, just as the train was entering the tunnel. At 
that very moment the respondent, by the motion of the train, fell for- 
ward and put his hand upon one of the hinges of the carriage door to 
save himself, and at that moment, by the door being slammed to, the 
respondent's thumb was caught and injured. 

The case as to negligence having been left to the jury, the jury 
found a verdict for the respondent with £50 damages. There was not, 
at your lordships' bar, any serious controversy as to the principles 
applicable to a case of this description. The judge has a certain duty 
to discharge, and the jtLrors have another and a different duty. The 
judge has to say whether any facts have been established by evidence 
from which negligence may he reasonably inferred; the jtux)rs have to 
say whether, from those facts, when submitted to them, negligence 
ought to he inferred. It is, in my opinion, of the greatest importance 
in the administration of justice that these separate functions should 
be maintained, and should be maintained dLstinct. It would be a 
serious inroad on the province of the jury, if , in a case where there 
are facts from which negligence may reasonably be inferred, the judge 
were to withdraw the case from the jury upon the groimd that, in his 
opinion, negligence ought not to be inferred; and it would, on the 
other hand, place in the hands of the jtLrors a power which might be 
exercised in the most arbitrary manner, if they were at liberty to hold 
that negligence might be inferred from any state of facts whatever. 
To take the instance of actions against railway companies : a company 
might be unpopular, unpunctual, and irregular in its service; badly 
equipped as to its staff; unaccommodating to the public; notorious. 



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100 METROPOLITAN RAILWAY COMPANY V. JACKSON [CHAP. H, 

perhaps for accidents occurring on the line; and when an action was 
brou^t for the consequences of an accident, jurors, if left to them- 
selves, might, upon evidence of general carelessness, find a verdict 
against the company in a case where the company was really blame- 
less. It may be said that this would be set ri^t by an application to 
the court in banc, on the ground that the verdict was against evidence; 
but it is to be observed that such an application, even if successful, 
would only result in a new trial; and on a second trial, and even on 
subsequent trials, the same thing might happen again. 

In the present case I am boimd to say that I do not find any evi- 
dence from which, in my opinion, negligence could reasonably be 
inferred. The negligence must in some way connect itself, or be con- 
nected by evidence, with the accident. It must be, if I might invent 
an expression founded upon a phrase in the civil law, incuria dans 
locum injuriae. In the present case there was no doubt negligence in 
the company's servants, in allowing more passengers than the proper 
number to get in at the Gower Street Station; and it may also have 
been negligence if they saw these supernumerary passengers, or if 
they ought to have seen them, at Portland Road, not to have then re- 
moved them; but there is nothing, in my opinion, in this negligence 
which connects itself with the accident that took place. If, when the 
train was leaving Portland Road, the overcrowding had any effect on 
the movements of the respondent; if it had any effect on the particular 
portion of the carriage where he was sitting, if it made him less a 
master of his actions when he stood up or when he fell forward, this 
ought to have been made matter of evidence; but no evidence of the 
kind was given. 

As regards what took place at Portland Road, I am equally unable 
to see any evidence of negligence connected with the accident, or in- 
deed of any negligence whatever. The officials cannot, in my opinion, 
be held bound to prevent intending passengers on the platform open- 
ing a carriage door with a view of looking or getting into the carriage. 
They are bound to have a staff which would be able to prevent such 
persons getting in where the carriage was already full, and this staff 
they had, for the case finds that the porter pushed away the persons 
who were attempting to get in. So also with regard to shutting the 
door; these persons had opened the door, and thereupon it was not 
only proper but necessary that the door should be shut by the porter; 
and, as the train was on the point of passing into a tunnel, he could 
not shut it otherwise than quickly or in this sense violently. . . . 

Lord Blackburn: — 

My Lords, I also am of opinion that in this case the judgment 
should be reversed, and a nonsuit entered. On a trial by jury it is, I 
conceive, undoubted that the facts are for the jury, and the law for 
the judge. It is not, however, in many cases practicable completely 
to sever the law from the facts. 



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SECT. IV.] METROPOUTAN RAILWAY COMPANY V. JACKSON 101 

But I think it has always been considered a question of law to be 
determined by the judge, subject, of course, to review whether there is 
evidence which, if it is beUeved, and the counter-evidence, if any, not 
beUeved, would establish the facts in controversy. It is for the jury 
to say whether and how far the evidence is to be bfeUeved. And if the 
facts, as to which evidence is given, are such that from them a farther 
inference of fact may legitimately be drawn, it is for the jury to say 
whether that inference is to be drawn or not. But it is for the judge 
to determine, subject to review, as a matter of law whether from those 
facts that farther inference may legitimately be drawn. 

My Lords, in deUvering the considered judgment of the Exchequer 
Chamber in Ryder v. Wombwell, Law Rep. 4 Ex. 32, 38, Wilier, J., 
says: ''Such a question is one of mixed law and fact; insofarasitisa 
question of fact, it must be determined by a jury, subject no doubt to 
tixe control of the court, who may set aside the verdict, and submit the 
question to the decision of another jury; but there is in every case a 
preliminary question, which is one of law, viz., whether there is any 
evidence on which the jury could properly find the verdict for the 
party on whom the onus of proof lies. If there is not, the judge ought 
to withdraw the question from the jury, and direct a nonsuit if the 
oniLS is on the plaintiff, or direct a verdict for the plaintiff if the onus 
is on the defendant. It was formerly considered necessary in all cases 
to leave the question to the jury, if there was any evidence, even a 
sciptilla, in support of the case; but it is now settled that the question 
for the judge (subject, of coxu^e, to review), is, as is stated by Maule, 
J., in Jewell v. Parr, 13 C. B. 909, 916, ' not whether there is Uterally 
no evidence, but whether there is none that ought reasonably to 
satisfy the jury that the fact sought to be proved is established.' " 

He afterwards observes, Law Rep. 4 Ex. 42, very truly in my 
opinion, " There is no doubt a possibUity in all cases where the judges 
have to determine whether there is evidence on which the jury may 
reasonably find a fact, that the judges may differ in opinion, and it 
is possible that the majority may be wrong. Indeed, whenever a de- 
cision of the court below on such a point is reversed, the majority must 
have been so either in the court above or the court below. This is an 
infirmity which must affect all tribunals." 

I quite agree that this is so, and it is an evil. But I think it a far 
slighter evil than it would be to leave in the hands of the jury a power 
which might be exercised in the most arbitrary manner. . . . 

[The concurring opinions of Lord O'Hagan and Lord Gordon are 
omitted.] 

Judgment given for the plaintiff in the court below reversed, and a 
nonsuit to be entered.^ 

* This decision and Bridges v. North London R. Co., L. R. 7 H. L. 213, put an 
end in England to a conflict of authority as to the power of the judge to witndraw 
the case from the jury where there was an " invitation to alight " or " slanuning 



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102 KEARNEY V. LONDON R. CO. [CHAP, n. 

KEARNEY v. LONDON, BRIGHTON & SOUTH 
COAST R. CO. 

In thp Queen's Bench, June 16, 1870. 
Reported in Law Reports, 5 Queen*8 Bench, 411. 

Declaration, that the defendants were possessed of a bridge over 
a certain public highway, and it became their duty to maintain and 
keep in repair the bridge, so that it should not be injurious to any 
person passing under it; yet the defendants so negligently maintained 
the bridge, that while the plaintiff was lawfully passing imder the 
bridge a portion of the materials of the bridge fell down and injured 
the plaintiff. 

the door " of a compartment car. See the cases cited in 21 Halsbury, Laws of 
England, 445. 

A like question, much discussed in the United States, is: A man, without look- 
ing or listening, attempts to cross the track of a steam railway, and is hit by a 
nedi^ntly managed engine. Should the judge rule that crossing without lookmg 
and hstenmg (or crossing without stopping, looking, and listening) is, as matter of 
law. negligent conduct f Or should the ^udge teU the lury that such conduct is 
evidence m>m which negligence may be mferred, and that it is for tiiem to say 
whether they do infer it 7 As to this, there is a conflict of authority. See discus- 
sion and collected cases in 3 Elliott on Railroads (1st ed.) § 1167; 2 Thompson, 
Commentaries on the Law of Negligence, Chap. 52, Article 2, {§ 1637-1661, 
especially S§ 1640, 1649, 1650, 1653; 33 Cyc. 1116 ff.; Beach on Contributory 
Nedigence (3d ed.) §§ 181, 182. 

Other like questions arise in case of alighting from a moving car: Puget Sound 
R. Co. V, Felt, 181 Fed. 938; Birmingham R. Co. v. Girod, 164 Ala. 10; St. Louis 
R. Co. V, Plott, 108 Ark. 292; Carr v. Eel River R. Co., 98 Cal. 366; Coursey v. 
Southern R. Co., 113 Ga. 297- Ardison v. Illinois R. Co., 249 lU. 300; I/OuisviUe R. 
Co. V, Cnmk. 119 Ind. 542; Walters v. Missouri R. Co., 82 Kan. 739: Hayden v. 
Chicago R. Co„ 160 Ky. 836; Cumberland R. Co. v. Maugans, 61 Md. 53: Street 
V. Chicago R. Co., 124 Minn. 517; Johnson v. St. Joseph R. Co., 143 Mi). App. 
376; Wfllis v. Metropolitan R. Co., 63 App. Div. 332; Pennsylvania R. Co. v. 
Lyons, 129 Pa. St. 113; Kearney v. Seaboard R. Co.J58 N. C. 521; San Antonio 
Traction Co. v. Badgett, (Tex. Civ. App.) 158 S. W. 803: Gaines v. Ogden R. 
Co., 44 Utah, 512; Breeden v. Seattle R. O., 60 Wash. 522. 

Boarding moving car: Central R. Co. v. Hingson, 186 Ala. 40; South Chicago 
R. Co. V. Dufresne, 200 111. 456; Chicago Traction Co. v, Lundahl, 215 111. 289; 
Pence v. Wabash R. Co., 116 la. 279; Jonas v. South Covington R. Co., 162 Ky. 
171; Mabry v, Boston R. Co., 214 Mass. 463; Foley v. Detroit R. Co., 179 Mich. 
586; HuU v. Minneapolis R. Co., 116 Minn. 349; Nolan v. Metropolitan R. Co., 
250 Mo. 602. 

Standing on platform or running board: Texas R. Co. t;. Laoey, 185 Fed. 225; 
Central R. Co. v. Brown, 165 Ala. 493; Holloway v, Pasadena R. Co., 130 Cal. 177; 
Augusta R. Co. v. Snider, 118 Ga. 146; Chicago R. Co. v. Newell, 212 111. 332; 
Math V. Chicago R. Co., 243 111. 114; Louisville R. Co. v. Stillwell, 142 Ky. 330; 
Blair v. Lewiston R. Co., 110 Me. 235; Olund v. Worcester R. Co., 206 Mass. 544; 
Heshion v. Boston R. Co., 208 Mass. 117; Wheeler v. Boston R. Co., 220 Mass. 
298; Lacey v, Minneapolis R. Co., 118 Minn. 301 : Setzler v. Metropolitan R. Co.. 
227 Mo. 454; Trussell v. Traction Co., 79 N. J. Law, 533; Ward v. International 
R. Co„ 206 N. Y. 83: Edwards v. New Jersey R. O., 144 App. Div. 554; German- 
town R. O. V, WaUing. 97 Pa. St. 55; Brice v. Southern R. Co., 85 S. C. 216. 

Part of body protruding from car: Georgetown R. Co. v. Smith, 25 App. D. C. 
259; Clerc v. Morgan's R. Co., 107 La. 370; Lange v. Metropolitan R. Co.. 151 
Mo. App. 500; Kuttner v. Central R. Co., 80 N. J. Law, 11; CJoller v, Fonda R. 
Co., 110 App. Div. 620. 



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SECT. IVj KEARNEY V. LONDON R. CO. 103 

Plea: Not guilty. Issue joined. 

At the trial before HaDnen, J.; at the sittings in Middlesex after 
Michaelmas Term, 1869, it appeared, according to the plaintiff's evi- 
dence, that the plaintiff, on the 20th of January, 1869, was passing 
along the Blue Anchor Road, Bermondsey, under the railway bridge 
of the defendants, when a brick fell and injured him on the shoulder. 
A train had passed just previously, but whether it was a train of the 
defendants, or of another company (whose trains also pass over the 
bridge), did not appear. The bridge had been built three years, and is 
an iron girder bridge resting on iron piers, on one side, and on a per- 
pendicular brick wall with pilasters, on the other, and the brick fell 
from the top of one of the pilasters, where one of the girders rested on 
the pilaster. 

Tlie defendants called no witnesses,^ but rested their defence on 
there being no evidence of negUgence in the defendants; and also on 
the ground that the injury to the plaintiff's shoulder was not really 
caused by the falling of the brick. 

As to the evidence of negligence, the learned judge told the jury 
that if they thought the bare circumstance of a brick falling out was 
not evidence of negligence, they would find for the defendants; if they 
thought otherwise, for the pkdntiff; and the court would determine 
whether there was legal evidence of negUgence or not, as to which he 
should reserve leave to the defendants to move. 

The jiuy found a verdict for the plaintiff for 251. 

A rule was obtained to enter a nonsuit, on the groimd that there was 
no evidence of negUgence to leave to the jury.* 

CocKBURN, C. J. As we have had the whole matter carefuUy 
brought before us, with the cases bearing upon the subject, I think we 
should gain nothing by taking further time to consider it; and, there- 
fore, although I regret to say we are not unanimous upon the point, I 
think it is better to dispose of the case at once. 

My own opinion is, that this is a case to which the principle res ipsa 
loquitur is appUcable, though it is certainly as weak a case as can weU 
be conceived in which that maxim could be taken to apply. But I 
think the maxim is appUcable; and my reason for saying so is this. 
The company who have constructed this bridge were bound to con- 
struct it in a proper manner, and to use all reasonable care and diU- 
gence in keeping it in such a state of repair that no damage from its 
defective condition should occur to those who passed under it, the 
pubUc having a right to pass under it. Now we have the fact that a 
brick falls out of this structure, and injures the plaintiff. The proxi- 
mate cause appears to have been the looseness of the brick, and the 
vibration of a train passing over the bridge, acting upon the defective 

» But see L. R. 6 Q. B. 760-761. 

' Argumenta omitted* also the concurring opinion of Lush, J., and the dissent- 
ing opinion of Hannen, J. 



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104 KEARNEY V. LONDON R. CO. [CHAP. II, 

condition of the brick. It is clear, therefore, that the structure in 
reference to this brick was out of repair. It is clear that it was incum- 
bent on the defendants to use reasonable care and diligence, and I 
think the brick being loose affords, prima facie, a presumption that 
they had not used reasonable care and diligence. It is true that it is 
possible that, from changes in the temperature, a brick might get into 
the condition in which this brickwork appears to have been from 
causes operating so speedily as to prevent the possibiUty of any dili- 
gence and care applied to such a purpose intervening in due time, so as 
to prevent an accident. But inasmuch as our experience of these 
things is, that bricks do not fall out when brickwork is kept in a 
proper state of repair, I think where an accident of this sort happens, 
the presumption is that it is not the frost of a single night, or of many 
nights, that would cause such a change in the state of this brickwork 
as that a brick would fall out in this way; and it must be presumed 
that there was not that inspection and that care on the part of the 
defendants which it was their duty to apply. On the other hand, I 
admit most readily that a very little evidence would have suflSced to 
rebut the presumption which arises from the manifestly defective 
state of this brickwork. It might have been shown that many causes, 
over which the defendants had no control, might cause this defect in 
so short a time as that it could not be reasonably expected that they 
should have inspected it in the interval. They might, if they were 
able, have shown that they had inspected the bridge continually, or 
that such a state of things could not be anticipated, and had never 
been heard of or known before. Anything which tended to rebut the 
presumption arising from an accident caused by the defective condi- 
tion of the brickwork, which it was their duty to keep in a proper 
condition of repair, even if such evidence were but slight, might have 
sufficed; but the defendants chose to leave it on the naked state of 
facts proved by the plaintiff. Upon that naked state of facts it is not 
imimportant to see what might have been the cause of the defective 
condition of this brickwork. We have the fact, the datum, that the 
brickwork was in a defective condition, and we have it admitted that 
it was the defendants' duty to use reasonable care and diligence to 
keep it in a proper condition. Where it is the duty of persons to do 
their best to keep premises, or a structure, of whatever kind it may be, 
in a proper condition, and we find it out of condition, and an accident 
happens therefrom, it is incumbent upon them to show that they used 
that reasonable care and diligence which they were boimd to use, and 
the absence of which it seems to me may fairly be presumed from the 
fact that there was the defect from which the accident has arisen. 
Therefore, there was some evidence to go to the jiuy, however slight 
it may have been, of this accident having arisen from the negligence 
of the defendants; and it was incumbent on the defendants to give 



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SECT. IV.] KEARNEY V. LONDON R. CO. 105 

evidence rebutting the inference arising from the undisputed facts; 
that they have not done, and I therefore think this rule must be dis- 
charged. 

[Lush, J., delivered a concurring opinion. Hannen, J., delivered 
a dissenting opinion.] Rule discharaed.^ 

* AflSnned in the Exchequer Chamber, L. R. 6 Q. B. 759. 

Byrne v. Boadle, 2 H. & C. 722; Scott v. London Docks Co., 3 H. & C. 596; 
Skinner v. London R. Co., 5 Ex. 787; The Joseph D. Thomas, 81 Fed. 578; Has- 
torf V. Hudson River Co^ 110 Fed. 669; Cincinnati R. Co. v. South Fork Coal Co., 
139 Fed. 528; Kahn v. Cap Co., 139 Cal. 340; Armour v. Golkowska, 202 111. 144; 
Talgp V. Hockett, 55 Ind. App. 303; Nicoll v. Sweet, 163 la. 683; Melvin v. Penn- 
^Ivania Steel Co., 180 Mass. 196; Hull v. Berkshire R. Co., 217 Mass. 361; 
Cleary v, Cavanaugh, 219 Mass. 281; Scharff v. Southern Construction Co., 115 
Mo. App. 157; Pratt v, Missouri R. Co., 139 Mo. App. 502; Mullen v. St. John, 
57 N. Y. 567; Wolf v, American Society, 164 N. Y. 30; Grififen v. Manice, 166 
N. Y. 188; Kennedy t?. McAllaster, 31 App. Div. 453; Scheider v. American 
Bridge Co., 78 App. Div. 163; Travers v. Murray, 87 App. Div. 552; Connor v, 
Koch, 89 App. Div. 33; Larkin v. Reid Co., 161 App. Div. 77: Papazian v. 
Baumgartner, 49 Misc. 244; Barnes v. Automobile Co., 32 Ohio Cir. Ct. R. 233; 
Muskogee Traction Co. v. Mclntire, 37 Okl. 684; Edwards v, Manufactiu^rs' Co., 
27 R. I. 248; Patterson v. Brewing Co., 16 S. D. 33; Richmond R. Co. v. Hudgins, 
100 Va. 409; Gibson v. Chicago R. Co., 61 Wash. 639: Carroll v, Chicago R. Co., 
99 Wis. 399; Klitzke v, Webb, 120 Wis. 254; Schmidt v. Johnson Co., 145 Wis. 
49rSnyder v. Wheeling Electrical Co., 43 W. Va. 661 Accord. 

Where the declaration aJleges ne^gence and sets forth the nature and particu- 
lars of the accident but not the particulars of the alleged negUgence, plaintifif may 
rely upon this doctrine^ if the accident is of such a kina as to indicate that it would 
not have happened without negligence on the part of the defendant. James v, 
Boston R. Co., 204 Mass. 158. 

The doctrine applies only in the absence of explanation. Cook v. Newhall, 213 
Mass. 392. The inference may be met by defendant's showing the real cause of the 
accident. Nawrocki v. Chicago R. Co., 156 111. App. 563; Parsons ». Hecla Iron 
Works, 186 Mass. 221; Cohen v. Farmers' Co., 70 Misc. 548; Steams v. Spinning 
Co., 184 Pa. St. 519; Scarpelli v. Washington Power Co., 63 Wash. 18. By plaintiff 
showing by his own witnesses just how tne accident happened. Buckland v. New 
York R. Co., 181 Mass. 3. Or by defendant's showing that reasonable care was 
employed to prevent all brobable sources of accident. Thompson v, St. Louis R. 
Co., 243 Mo. 336, 355; Sweeney v. Edison Co., 158 App. Div. 449. 

** There are many cases that hold that an unexplained accident with a machine, 
not liable to occur if such machine was properlv constructed and in a proper state 
of repair, is evidence of negligence; as in Spaulding v. C. & N. W. R. Co., 30 Wis. 
llOj where it was held that the escape of fire from a passing locomotive engine, 
sufficient to cause dama^, raised a presumption of improper construction or in- 
sufficient repair or negligent handling of such engine. 'To the same effect are 
Cummings v. Nat. Furnace Co., 60 Wis. 603; Kurz & Huttenlocher Ice Co. v. 
M. & N. R. Co., 84 Wis. 171; Stacy v. M., L. S. & W. R. Co., 85 Wis. 225; MuUen 
V. St. John, 57 N. Y. 567: Volkmar v. Manhattan R. Co., 134 N. Y. 418: McCar- 
ragher v. Rogers, 120 N. Y. 526. and many others that might be cited. Such cases 
lay down a very well-recognizea principle in the law of negligence, but do not . . . 
conffict in the slightest degree with numerous authorities that go on another prin- 
ciple, just as well-recognized and firmly established^ to the effect that undisputed 
proof of freedom of the machine from all discoverable defects, either in construc- 
tion or repair, effectually overcomes any mere inference or presumption arising 
from the happening of the accident, so as to leave no question in that regard for 
the junr; as in Spaulding w. C. & N. W. R. Co., 33 Wis. 582, where this court held 
the inference that a locomotive engine was defective, arising merely from the 
escape of fire therefrom sufficient to cause damage, rebutted by conclusive proof 
that the engine was free from discoverable defects, so as to leave nothing on that 
point for the consideration of a jiuy." Marshall, J., Vorbrich v. Geuder Co., 96 
Wis. 277, 284. See Green v. Urban ConstructiDg Co., 106 App. Div. 460 Accord. 



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106 MARCEAU V. RUTLAND R. CO. [CHAP. II. 

MARCEAU V. RUTLAND R. CO. 

Ck)XJRT OP Appeals, New York, April 28, 1914. 
Reported in 211 New York ReparU, 203. 

Werner, J. The question presented by this appeal is whether the 
case is one in which it is proper to apply the maxim r€3 ipsa loqui- 
tur.^ . . . 

The phrase res ipsa loquitur, literally translated, means that the 
thing or affair speaks for itself. It is merely a short way of saying 
that the circmnstances attendant upon an accident are themselves of 
such a character as to justify the conclusion that the accident was 
caused by negligence. The in|gj;ence of negligence is deducible, not 
/ from the mere happening of the sjbcident, but from the attendant cir- 
cumstances. " It is not that, in any case, negligence can be assumed 
from the mere fact of an accident and an injury; but in these cases 
the surrounding circumstances which are necessarily brought into 
view by showing how the accident occurred, contain, without further 
proof, suflScient evidence of the defendant's duty and of his neglect 
to perform it. The fact of the casualty and the attendant circum- 
stances may themselves furnish all the proof of negligence that the 
injured person is able to offer, or that it is necessary to offer." Shear- 
man & Redfield on Negligence, § 59. This section was quoted with 
approval by Judge CuUen in writing for this court in Griffen v. Manice, 
166 N. Y. 188, 193, and in that connection he expressed the view that 
" the application of the principle depends on the circumstances and 
character of the occurrence, and not on the relation between the 
parties, except indirectly so far as that relation defines the measure of 
duty imposed on the defendant." He quoted also from the opinion 
of Judge Danforth in Breen v. N. Y. C. & H. R. R. Co., 109 N. Y. 297, 
300, in which the author said " there must be r ea sonable evide nce of 
negligence, but when the ^iT?g''^«Vff| ni]; the to jm^vJs^sho^mTo-be 
under the control oi a aei'endant, and the accident is sucE~as, m the 
ordinary course of business, does not happen if reasonable care is used, 
it does, in jhe absence of ey p^an^^^^" ^y ^^^ ^^^*"^^npt, «ff^^^ «"ffi- 
ci ent evidence that the accident arose from want of care on its part." 
In the (iriffen case Judge Cullen followed this quotation fromlhe 
Breen case, with the pertinent observation that he could see no reason 
" why the rule thus declared is not applicable to all cases or why the 
probative force of the evidence depends on the relation of the parties. 
Of course, the relation of the parties may determine the fact to be 
proved, whether it be want of the highest care or only want of ordi- 
nary care, and, doubtless, circumstantial evidence, like direct evidence, 
may be insuiBBcient as a matter of law to establish the want of ordi- 
nary care, though suflScient to prove absence of the highest degree of 

^ The arguments of counsel and a part of the opinion are omitted. 



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SECT. IV.] ' MARCEAU V. RUTLAND R. CO. 107 

diligence. But the question in every case is the same whether the 
circumstances surrounding the occurrence are such as to justify the 
jury in inferring the fact in issue." Thus we see that this court is 
definitely committed to the view that the application of the maxim 
res ipsa loquitur depends, not upon the relation of the injured person 
to the person or party who is charged with causing the injury ^ut 
u pon the explanato ry circumstance s which surround the happening of 
t fie accide nt. Ine rule thus expredSM has beeu lucugnijsed in the 
recent cases of Robinson v. Consolidated Gas Co., 194 N. Y. 37, 41, 
and Hardie v. Boland Co., 205 N. Y. 336, 341, and has been followed 
in many cases in the several Appellate Divisions.^ 

While it is, therefore, the settled law that the maxim is applicable 
to any case where the facts warrant its application, it is apparent that 
the employee who invokes it against his employer encounters difficul- 
ties that do not hamper the wayfarer in a pubUc place or the passenger 
in a common carrier's conveyance. The man who was lawfully upon 
the highway need go no farther in the first instance than to prove ttiat 
he was hit by a falling wall (Mullen v. St. John, 57 N. Y. 567) or by 
a flying missile (Wolf v. Am. Tract Soc, 164 N. Y. 30, 33; Hogan v. 
Manh. Ry. Co., 149 N. Y. 23; Volkmar v. Manh. Ry. Co., 134 N. Y. 
418), and that the thing by which he was injured came from the 
premises of the defendant. The passenger who was for the time imder 
the protection of a common carrier needs only to show that the train 
upon which he was riding left the track (Seyboldt v. N. Y., L. E. & 
W. R. R. Co., 95 N. Y. 562, 565) or collided with another car or train 
(Loudoun V. Eighth Ave. R. R. Co., 162 N. Y. 380) and thus caused 
his injuries. The reason for the rule in such cases is not far to seek. 
The owner of a building or structure must exercise a high degree of 
care to so keep it that the wayfarer on the public streets shall not be 
injured by falling walls or missiles. The common carrier is under the 
' strict duty to its passenger to keep its cars and tracks in a safe con- 
dition, and in all such cases where the plaintiff " has shown a situation . 
which could not have been produced except by the operation of ab- ^ 
normal causes, the onus then rests upon the defendant to prove that 
the injury was caused without his fault." Seyboldt v, N. Y., L. E. & 
W. R. R. Co., 95 N. Y. 565, 568. Ordmarily walls do not fall, missiles . 
do not fly and trains are not derailed when those in control are in the \ 
exercise of the requisite care, and, therefore, the inference of negligence 
follows in logical sequence. 

In the nature of things the injured employee who sues his employer 
must present a much higher degree of proof than is necessary in the * 
case of a wa3rfarer or passenger. It is to be emphasized, however, that 

* There is a conflict of authority upon the question whether the maxim res ipsa 
loquitur is applicable in an action by a servant against a master. See cases col- 
lected in an elaborate note, 6 Lawyers' Reports, ^notated, New Series, 337-363. 
See also 2 Labatt on Master & Servant, §§ 833, 834, 835; especially authorities 
cited in § 834, note 8. 



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108 MAKCEAU V. RUTLAND B. CO. - [CHAP. II. 

the difference is one of degree and not of kind. This more onerous 
burden which is placed upon the employee is the natural concomitant 
of the relation of the parties and of their resultant obUgations. The 
employer is bound merely to the exercise of reasonable care in provid- 
ing his employee with a safe place in which to work, with proper and 
axiequate tools, appliances and machinery, and with fellow-employees 
competent for the tasks to which they are assigned. If the injured em- 
ployee sues at common law and seeks to invoke the maxim, he must 
necessarily make proof of facts and circumstances which, under the 
common law, exclude every inference except that of the employer's 
negligence. This means that the employee must himself be free from 
the imputation of contributory negligence; that he is not the victim 
of the negUgence of co-employees; that the injury is not the result of 
some risk either inherent in the occupation or vol wntar jly assumed by 
the employee; and that the accident is one which, in the ordinary 
course of events, could not have happened if the employer had exer- 
cised the degree of care required of him by the common law. The 
same rule appUes, in a modified degree, where the employee sues under 
the Employers' Liability Act, as the plaintiff in this case has done. In 
such a case the plaintiff must establish facts and circumstances which, 
under the statute, would entitle him to recover in the absence of a 
sufficient explanation by the defendant, absolving him from the im- 
putation of negUgence. The proof must not be conjectural or specula- 
tive, but must consist of evidence which, tested by the ordinary rules of 
experience and observation, points to the single conclusion that the em- 
ployer's omission of a duty which he owes to his employee was the sole 
efficient cause of the accident. Ferrick v. Eidlitz, 195 N. Y. 248, 252. 
The next question, in logical progression, is whether the plaintiff 
has established his case by facts and circumstances which negative the 
existence of any cause for the accident by which he was injured, save 
the negligence of the defendant. The plaintiff, as has been stated, was 
a locomotive fireman in the employ of the defendant. On the 25th of 
March, 1911, he and his engineer left Malone on engine No. 2055 for 
Moira to assist in bringing back a train. After arriving at Moira the 
engine was turned around and coupled to another engine already at- 
tached to a train, and a start was made for the return to Malone. Sud- 
denly there occurred an explosion in the fire box of the engine which 
drove the doors from their fastenings, and expelled fire and boiling 
water into the cab, and burned and scalded the plaintiff, and blew him 
out of the cab to the ground with such force as to bruise him. Al- 
though this accident was of an unusual character, it will be assumed 
for the purposes of this discussion that it was not such an occurrence 
as would, in and of itself, justify the application of the maxim res ipsa 
loquitur J for the engine was then in the custody and control of the 
plaintiff and his engineer. The mere happening of the accident did 
not necessarily exclude the inference that it might have been caused 
by the negligence of the plaintiff, or without any negligence at all. 



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SECT. IV.] MARCEATJ V. RUTLAND R. CO. 109 

It was, therefore, necessary for the plaintiflf to supplement the proof 
of the accident with evidence tending to show that it resulted from 
the failure of the defendant to exercise ordinary care, either in the 
selection of the engine or in keeping it in reasonably safe repair. In 
that behalf thfe record discloses a number of facts and circumstances 
that bear upon the accident very directly and cogently. It appears 
that the train crews employed by the defendant have nothing to do 
with the care and inspection of the internal and hidden parts of the 
engines. That work is committed to a special corps of employees 
whose place of duty is in the hostelry where the engines are housed, 
made ready for service, and timied over to the crews designated to 
take them out. The engineers are charged with the duty of making a 
report of each trip which shall specify any needed repairs that come 
imder their observation. The engineer Francey, who was on engine 
2055 at the time of the accident, testified that he had used it on various 
specified dates during the month preceding the day of the accident, 
and that he had orally reported it as leaking, although he had been 
turning in written reports which made no mention of the fact. While 
such a circumstance might ordinarily affect the credibility of a witness, 
all doubt upon this subject is dissipated by the testimony of the de- 
fendant's witnesses showing that the engine was inspected by the fore- 
man of boiler makers on or about March 21st, 1911, and found to be 
in a leaky condition. Several of defendant's witnesses testified that 
the engine had been in the shop at various times during the month on 
account of leaking flues, and tiiat the last repairs in this regard were 
made two or tiiree dajrs before the accident. 

After the accident an examination of the engine was made which 
revealed the probable cause of the trouble. One of the flues, which 
extend longitudinally through the boiler from the rear flue sheet to an- 
other flue sheet next the smoke stack, had been pushed or blown out 
of its socket in the rear flue sheet so that the forward end of the flue 
projected several feet beyond the forward flue sheet; thus leaving an 
opening in the rear flue sheet through which the boiling water and 
steam were admitted into the fire pot where the explosion was gener- 
ated. There were 342 of these flues which were each ij inches in 
diameter and about 16 feet in length. These flues are " safe ended " 
into the flue sheets so that when they are in perfect condition there can 
be no leakage through them from the boiler. The particular flue that 
was blown or driven out of its place was in the bottom row of flues 
where there could be no inspection without taking out the " brick 
arch," and that could be done only when the boiler was not in steam. 
There can be no doubt that the explosion by which the plaintifif was 
injured was due immediately to the displacement of the flue; but the 
cause of the dislodgement of the flue is not so clear. It is a matter of 
common knowledge that steam, like electricity, is a capricious and 
fickle agency which sometimes causes unexpected and unexplainable 
accidents. If the plaintiff's case were wholly dependent upon evidence 



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110 MARCEAU V. RUTLAND R. CO. [CHAP. U. 

merely showing the happening of this explosion, it might be necessary 
to hold that he had not proved enough to give him the benefit of the 
maxim which he invokes. The ultimate question, therefore, is whether 
he has the support of surrounding circumstances which show that the 
accident was of " such a character as does not ordinarily occur where 
the party charged with responsibiUty has exercised the degree of care 
and caution required by law to avoid such a mishap." Henson v, 
Lehigh Valley R. R. Co., 194 N. Y. 205, 211. We think he has. The 
defendant's foreman testified that if a flue is loose at both ends it 
would be liable to move from the pressure, and that if a flue is loose at 
one end it is more liable to move than one that is not loose. It is un- 
disputed that defendant's chief boiler man inspected this engine on the 
21st or 22d of March and found that a number of flues, about twenty- 
five, were leaking. These were repaired, but the boiler still leaked on 
the 24th, and the explosion occurred on the 25th. Since the defend- 
ant's experts had found loose and leaking flues which they repaired, 
it is reasonable to infer that the displacement of another flue within 
two or three days was attributable to the same cause. This was not a 
part of the locomotive over which the plaintiff had any control, or in 
respect of which he had, so far as the record discloses, any duty or 
knowledge. The work of inspection and repair was the work of the 
defendant, and any failure in this regard was its failure. The almost 
immediate recurrence of a condition that had led to inspection and 
repair was circumstantial evidence which tended to show that the 
work had not been thoroughly done. We think, therefore, that the 
plaintiff was entitled to rest upon the rule of res ipsa loquitur, and that 
in the absence of a satisfactory and convincing explanation by the 
defendant, the plaintiff was entitled to recover. 

Counsel for the defendant contends that such an explanation has 
been made. In that regard it appears that the locomotive was of a 
modem and standard type; that for several months from January, 
1910, it was in the main shops of the defendant at Rutland, where it 
was given a thorough overhauling and sent out in perfect condition; 
that the complaints of leakage made in the early part of 1911 were fol- 
lowed by prompt inspection and complete repair. This was an expla- 
nation well calculated indeed to create a serious issue of fact, but we 
think it would be going too far to hold that it was conclusive as matter 
of law. The limitations of the rule of res ipsa loquitur, and the legal 
effect of defendant's explanation, were well stated in the charge to the 
jury, and we think the judgment entered on the verdict must stand. 

The judgment should be afltoned, with costs. 

WiLLARD BaRTLETT, Ch. J., COLLIN, CUDDEBACK, HOGAN, and 

Cardozo, JJ., concur; Hornbloweh, J., not sitting. 

Judgment affirmed,^ 

* " There was much discussion by counsel of the doctrine of res ipsa loquitur and 
its relevancy to the facts of this case. The thing speaks for itseu, is a principle 



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SECT. IV.] WING V. LONDON GENERAL OMNIBUS CO. Ill 

WING V. LONDON GENERAL OMNIBUS CO. 

In the Court of Appeal, July 16, 1909. 

Reported in [1909] 2 King's Bench, 652. 

Fletcher Moulton, L. J., read the following judgment: ^ — This 
is an appeal from the judgment delivered by the judge of the county 
court of Middlesex held in Clerkenwell in an action in which the plain- 
tiff sued for damages resulting from an accident which occurred while 
she was a passenger in a motor omnibus belonging to the defendants. 

The plahitiff 's claim was based on two alternative grounds : (1) that 
the defendants' servants, whilst in charge of the motor omnibus, were 
guilty of negligence causing the accident, and (2) that the motor 
omnibus was itself a dangerous machine, and that the defendants were 
liable for having placed it upon the roadway, thereby creating a 
nuisance, whereby the plaintiff suffered damage. 

applied by the law where under the circumstances shown the accident presumably 
would not have occurred in the use of a machine if due care had been exercised, or, 
in the case of an elevator, when in its normal operation after due inspection. The 
doctrine does not dispense with the requirement that the party who alleges negli- 
gence must prove the fact, but relates only to the mode of proving it. The fact of 
the accident furnishes merely some evidence to go to the juiy, which requires the 
defendant ' to go forward with his proof.' The rule of res ipsa hquUvr does not 
relieve the plaintiff of the burden of showing negligence, nor does it raise any pre- 
sumption in his favor. Whether the defendant introduces evidence or not, the 
plaintiff in this case will not be entitled to a verdict unless he satisfies the jury by 
the preponderance of the evidence that his injuries were caused by a defect in the 
elevator attributable to the defendant's neshgence. The law attaches no special 
weight, as proof, to the fact of an accident, but simply holds it to be sufficient for 
the consideration of the jury even in the absence of any additional evidoice. 
Womble v. Grocery Co., 135 N. C. 474; 2 Labatt on Master & Servant. § 834; 4 
Wigmore on Evidence, § 2509. In all other respects, the parties stand odTore the 
jury just as if there was no such rule. The judge should carefully instruct the jury 
as to the application of the principle, so that tney will not give to the fact of t^ 
accident any greater artificial wei^t than the law imparts to it. Wigmore, in the 
section just dted, says the followmg considerations ouj^t to limit the doctrine of 
res ipm JoquUtar: 1. The apparatus must be such that m the ordinary instance no 
injurious operation is to be expected unless from a careless construction, inspection, 
or user; 2. Both inspection and user must have been, at the time of the injury, 
in the control of the party charged; 3. Th^ injurious occurrence must have hap- 
pened irrespective of any voluntary action at the time by the party injured. He 
says further that the doctrine is to some extent f oundea upon the fact that the 
chief evidence of the true cause of the injury, whether culpable or innocent, is 
practicallyaccessible to the party charged imd perhaps inaccessible to the party 
mjured. What are the general limits of the doctrine imd what is the true reason 
for its adoption, we will not now undertake to decide. It is established in the law 
as a rule for our guidance and must be enforced whenever applicable, and to the 
extent that it is applicable, to the facts of the particular case." Walker, J., in 
Stewart v. Van Deventer Carpet Co., 138 N. C. 60, 65. 

The burden of proof is not shifted; merely the burden of going forward. 
Sweeney v. Erving, 228 U. S. 233; Ferrier v. Chicago R. Co., 185 HI. App. 326; 
Bigwood V. Boston R. Co., 209 Mass. 345; Alabama R. Co. v, Groome, 97 Miss. 
201; Kay v. Metropolitan R. Co., 163 N. Y. 447. 

* The arguments of counsel, concurring opinion of Vaudian-Williams, L. J^ and 
dissenting opinion of Buckley, L. J., wid part of the opmion of Moulton, L. J., 
dealing with another pointy are omitted. 



V 



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112 WING V. LONDON GENERAL OMNIBUS CO. [CHAP. 11. 

The evidence given at the trial as to the nature and circumstances 
of the accident was meagre in the extreme. The plaintiff deposed to 
nothing more than that she was a passenger in the omnibus, and that 
she heard breaking of glass, and knew that the omnibus had hit some- 
thing, and that she heard something fall. She tried to get out, and, 
in so doing, hurt her foot. No other witness was called who was pres- 
ent at the time of the accident, but evidence was given on her behalf 
by a poUce constable, who came up afterwards, and proved that an 
electric standard had been broken in the accident, and that the hind 
step of the motor omnibus had been slightly bent. No other damage 
had been caused to the omnibus. He also proved that the road was in 
a greasy state at the time by reason of rain that had fallen during the 
day. He was asked by the plaintiff's counsel as to certain admissions 
made to him at the time by the driver and conductor of the omnibus, 
and proved that they stated to him that the hind part of the omnibus 
skidded, when going about five miles an hour, while the driver was 
trying to avoid two other vehicles. The defendants called no evidence 
except as to the quantum of damage. At the end of the plaintiff's 
case, counsel for the defendants submitted that there was no evidence, 
either of negligence or of nuisance, to go to the jury, and the learned 
judge gave partial effect to that contention by withdrawing from the 
jury the question of negligence in the driving or management of the 
car. The plaintiff did not take exception to this by giving a cross 
notice of appeal, nor was the point raised before the Divisional Court, 
and it is not, in my opinion, open to her counsel to raise it now. But, 
apart from this, I am of opinion that the learned judge was right in 
80 doing. There was no evidence whatever that the accident was due 
to negligence on the part of the servants of the defendants who were 
in charge of the omnibus, imless the mere occurrence of the accident 
amounts to such evidence. In my opinion the mere occurrence of such 
an accident is not in itself evidence of negligence. Without attempt- 
ing to lay down any exhaustive classification of the cases in which the 
principle of res ipsa loquitur applies, it may generally be said that the 
principle only applies when the direct cause of the accident, and so 
much of the surroimding circumstances as was essential to its occur- 
rence, were within the sole control and management of the defendants, 
or their servants, so that it is not unfair to attribute to them a prima 
facte responsibiUty for what happened. An accident in the case of 
traflSc on a highway is in marked contrast to such a condition of 
things. Every vehicle has to adapt its own behaviour to the behaviour 
of other persons using the road> and over their actions those in charge 
of the vehicle have no control. Hence the fact that an accident has 
happened either to or through a particular vehicle is by itself no evi- 
dence that the fault, if any, which led to it was committed by those 
in charge of that vehicle. Exceptional cases may occur in which the 
peculiar nature of the accident may throw light upon the question on 



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SECT. IV.] CARMODY V. BOSTON GAS LIGHT CO. 113 

whom the responsibility lies, but there is nothing of the kind here. 
The collision with the electric standard was due to the omnibus skid- 
ding, and, if we are to give any weight to the admissions made by the 
defendants' servants which were proved in evidence in chief as part of 
the plaintiff's case, that skidding was due to difficulties in avoiding 
other vehicles. There is certainly no evidence to negative such a prob- 
able explanation of what actually happened, and it is impossible to say 
that this points to negligence, or that it establishes that any negligent 
act of the defendants' servant was the cause of the accident. I am 
therefore of opinion that the learned judge acted rightly in withdraw- 
ing from the jury the issue as to the accident being due to negligence 
of the defendants' servants in the driving or management of the 
vehicle.^ 



CARMODY V. BOSTON GAS LIGHT CO. 

SuPBBMB Judicial CoxTR'f , Massachusetts, January 2, 1895. 

Reported in 162 MassachueeUe Reports, 539. 

FoxTR actions for damages occasioned to the respective plaintiffs by 
the escape of gas were tried together. 

Plaintiffs' evidence tended to show that gas escaped into plaintiffs' 
apartments from defendant's pipes in the street; that plaintiffs in- 
haled the gas while asleep; and that the escape was due to the defec- 
tive condition of the pipe. 

Defendant's evidence tended to prove that the defect in the pipe 
and the consequent escape of gas was due to acts of third persons of 
which the defendant had no notice, and not to any negligence of the 
defendant. 

The plaintiffs requested the judge to rule that there was evidence 
enough of want of proper care on the part of the defendant to make 
it responsible, on the groimd that it was bound to conduct its gas in 
a proper manner; and that the fact that the gas escaped was prima 
facie evidence of some neglect on the part of the defendant. 

The judge declined so to rule, and instructed the jury as follows: 

" The mere fact that a pipe broke and the gas escaped is not of itself 
sufficient to establish the liability of the company. It is evidence for 
you to consider upon the question of neglect; but there is other evi- 
dence bearing upon this question of neglect, and so it becomes a matter 
for you to determine, in view of all the evidence bearing upon the 
question, the burden being upon the plaintiffs to satisfy you, as a result 

1 Bonham v. Winchester Arms Co., 179 111. App. 469; Prestolite Co. v. Skeel, 
182 Ind. 693; Rice v. Chicago R. Co., 153 Mo. App. 35; DalzeU v. New York R. 
Co., 136 App. Div. 329 Accord, 

The nature and circumstances of the accident itself must not only support an 
inference of defendant's negligence but must exdude all others. Lucid v. Powder 
Co., 199 Fed. 377. 



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114 CABMODT V. BOSTON GAS UGHT CO. [CHAP. U. 

of all the evidence, that there was in fact a neglect by the defendant, 
through which; and by means of which, this gas escaped.'' 



Upon the counsel for the plaintiffs remarking, " Your honor has not 
given the requests I asked for, and so I will except to that," the judge 
repUed as follows: " Well, you asked me to say that the fact that the 
gas escaped is prima facte evidence of some neglect on the part of the 
defendant. I do not choose to use that expression ' prima facie evi- 
dence,' imless the defendant consents to it. I have already told the 
jury that it was evidence of neglect, or of negUgence, on the defend- 
ant's part, and evidence the force of which it was for them to deter- 
mine in connection with any other evidence in the case bearing upon 
the same subject." 

The jury returned a verdict for the defendant; and the plaintiffs 
alleged exceptions.^ 

Barker, J. The plaintiffs asked the court to instruct the jury 
" that there was evidence enough of want of proper care on the part 
of the defendant to make it responsible, on the ground that it was 
bound to conduct its gas in a proper manner, and that the fact that 
the gas escaped was primxi facie evidence of some neglect on the part 
of the defendant." This request was copied from a ruling given in 
Smith V. Boston Gas Light Co., 129 Mass. 318, where this court said 
of it that, as applied to the facts of that case, it could not be said to 
be wrong. The presiding justice in the present case declined to give 
the instruction, but instructed the jury in other terms, which fully 
and correctly dealt with the phases of the cause to which the request 
was addressed. 

While the ruling requested is sufficiently correct if it be construed 
as declaring that there was enough evidence of want of proper care to 
be submitted to the jury, it would invade the proper province of the 
jury if it was understood by them to mean that there was evidence 
enough to require them to find the defendant negligent, and the presid- 
ing justice was not bound to give a ruling which, as applied to the 
case upon trial, might have been so understood. Nor was he bound 
to use the Latin phrase upon which the plaintiffs insisted, but might 
well say, in place of it, that the fact that gas escaped was evidence of 
neglect '* and e^^dence the force of which it was for them to determine 
in connection with any other evidence in the case bearing on the same 
subject." 

The plaintiffs' exception did not go to the charge as given, but 
merely to the refusal of the request. They nevertheless argue that 
the statement of the charge, that " the mere fact that a pipe broke 
and the gas escaped is not of itself sufficient to establish the liability 
of the company," was incorrect. But there was evidence with which 

^ Statement abridged. 



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SECT. IV.] BENEDICK V. POTTS 115 

the jury had to deal tendmg to show that the defendant had used due 
care to conduct its gas in a proper manner, and that the escape of gas 
by which the plaintiffs were injured was due to the acts of third per- 
sons of which the defendant had no notice, and not to any negligence 
of the defendant. 

It is apparent; from the situation of the evidence and the context 
of the charge, that the sentence to which the plaintiffs now object 
could not have been understood by the jury as forbidding them to 
draw the inference of negligence from the facts that a pipe broke and 
that gas escaped; but that, as there was other evidence bearing upon 
the question of negligence, they must consider and weigh it all, and 
not come to a conclusion upon two circumstances merely. 

The true construction of the ruling asked, as applied to the case at 
bar, would be, that, as matter of law, the breaking of a pipe and the 
consequent escape of gas prove negligence. The true rule is, that a 
jury may find negligence from those circimistances, but it is for them 
to say whether they will do so; and, if there are other circimistances 
bearing on the question, they must weigh them all. 

Instructions tiiat evidence " is sufficient to show," or " has a tend- 
dency to show," or " is enough to show," or " is prima facte evidence 
of," are not to be understood as meaning that there is a presumption of 
fact, but that the jury are at Uberty to draw the inference from them. 
Commonwealth v. Clifford, 146 Mass. 97. Commonwealth v. Keenan, 
148 Mass. 470. And so the instruction in a case where a number of 
circumstances bearing upon a question of fact are in evidence, that a 
part of them are not of themselves sufficient to establish the fact, 
coupled with explicit instructions that they are to be considered, must 
be understood as directing the jury to weigh together all the pertinent 
circumstances, and not to draw their inference from a part without 
considering all. Excepti&ns ovemUed.^ 



BENEDICK V. POTTS 

CouBT OP Appeals, Maryland, June 28, 1898. 

Reported in 88 Maryland Reports, 52. 

Appeal from Circuit Coiurt, where judgment was entered on a ver- 
dict for defendant, ordered by the court. 

Defendant owned and operated, at a pleasure resort, a mimic rail- 
way, which was a wooden structure. Open cars were hoisted up an 
incline to the highest point of the railway, and were then nm by grav- 

1 " The maxim res ivaa loguiUvr is simply a rule of evidence. 

The general rule is that negligence is never presumed from the mere fact of in- 
jury, yet the manner of the occurrence of the injury complained of, or the attend- 
ant circumstances, may sometimes well warrant an inference of neg^gence. It is 
sometimes said that it warrants a presumption of negligence, but the presumption 
referred to is not one of law, but of fact. It is, however, more correct and less con- 



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116 BENEDICK V. POTTS [CHAP. H. 

ity down and around a circular track to the ground. The length of 
the spiral track was about two thousand feet, and it made three cir- 
cuits before reaching the ground. At about the middle of the last 
circle nearest the ground, the cars passed through a tunnel which was 
part of the structm'e. This tmmel was one hundred and fifty feet 
long, and completely incased that portion of the track, and hid the cars 
and their occupants from all observation when passing through it. 
The cars were provided with handles for the occupants to grasp during 
the rapid descent. Plaintiff was the sole occupant of the rear seat in 
one of the cars. The car was started and made the descent; but when 
it reached the ground at the end of the track the plaintiff was not in 
it, though as it entered the tunnel he was seen to be upon it. Search 
was at once made, and he was found inside the tunnel, in an uncon- 
scious condition, with a wound upon his head. After several dhys he 
was restored to consciousness. For the damages thus sustained, this 
suit was brought. 

The car did not leave the track, no part of it was shown to be out of 
repair, the track was not defective, and no explanation is given in the 
record as to what caused the injury. The plaintiff distinctly stated 
that he jnade no effort to rise as he passed through the tunnel, and 
that he did not relax his grasp on the sides of the car. He was in the 
car when it passed into the tunnel. He was not in it when it emerged. 
How he got off was not shown. 

Upon this state of facts the trial court instructed the jury that there 
was no legally sufficient evidence to show that the defendant had been 
guilty of negligence; and the verdict and judgment were accordingly 
entered for defendant. Plaintiff brought up the record by appeal.^ 

McSherry, C. J. This is an action to recover damages for a per- 
sonal injury, and the single question which the record presents is 
whether there was legally sufficient evidence of the defendant's im- 
puted negligence to carry the case to the jury. The facts are few and 
simple. [The learned judge then stated the facts.] 

It is a perfectly wellnaettled principle that to entitle a plaintiff to 
recover in an action of this kind he must show not only that he has 
sustained an injury but that the defendant has been guilty of some 
negligence which produced that particular injury. The negligence 
alleged and the injury sued for must bear the relation of cause and 
effect. The concurrence of both and the nexus between them must 
exist to constitute a cause of action. As an injury may occur from 

fusing to refer to it as an inference, rather than a presumption, imd not an inference 
which the law draws from the fact, but an inference which the jury are authorized 
to draw, and not an inference which the jury are compelled to dniw." Cobb, J., 
in Pakner Brick Co. v. Chenall, 119 Ga. 837, 842. See Sweeney v. Erving, 228 
U. S. 233, 240; Harlow v. Standard Imp. Co., 146 Cal. 477; National Biscuit Co. v, 
Wilson, 169 Ind. 442; O'Neil v. Toomey, 218 Mass. 242; Lincoln v, Detroit R. Co., 
179 Mich. 189; Boucher v. Boston R. Co., 76 N. H. 91: Ross v. Cotton Mills, 140 
N. C. 115. But compare Thompson v. St. Louis R. Co., 243 Mo. 336, 353. 
^ Statement abridged. 



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SECT. IV.] BENEDICK V. POTTS 117 

causes other than the negligence of the party sued, it is obvious that 
before a Uability on account of that injury can be fastened upon a par- 
ticular individual, it must be shown, or there must be evidence legally 
tending to show, that he is responsible for it; that is, that he has been 
guilty of the negUgence that produced or occasioned the injury. In 
no instance can the bare fact that an injury has happened, of itself 
and divorced from all the surrounding circumstances, justify the 
inference that the injury was caused by negUgence. It is true that 
direct proof of negUgence is not necessary. Like any other fact, neg- 
Ugence may be established by the proof of circumstances from which 
its existence may be inferred. But this inference must, after aU, be a 
legitimate inference and not a mere speculation of conjecture. There 
must be a logical relation and connection between the circumstances 
proved and the conclusion sought to be adduced from them. This 
principle is never departed from, and in the very nature of things it 
never can be disr^arded. There are instances in which the circum- 
stances siu-rounding an occurrence and giving a character to it are 
held, if unexplained, to indicate the antecedent or coincident exist- 
ence of negligence as the efficient cause of an injury complained of. 
These are the instances where the doctrine of res ipsa hquiUJtr is ap- 
pUed. This phrase, which Uterally translated means that '' the thing 
speaks for itself," is merely a short way of s^3ang that the circum- 
stances attendant upon an accident are themselves of such a character 
as to justify a jiuy in inferring negligepce as the cause of that acci- 
dent; and the doctrine which it embodies, though correct enough in 
itself, may be said to be appUcable to two classes of cases only, viz., 
'' first, when the relation of carrier and passenger exists and the acci- 
dent arises from some abnormal condition in the department of actual 
transportation; second, where the injury arises from some condition 
or event that is in its very nature so obviously destructive of the safety 
of person or property and is so tortious in its quaUty as, in the first 
instance at least, to permit no inference save that of negligence on the 
part of the person in the control of the injurious agency." Thomas on 
Neg. 574. But it is obvious that in both instances more than the mere 
isolated, single, segregated fact that an injury has happened must be 
known. The injury, without more, does not necessarily speak or indi- 
cate the cause of that injury — it is colorless; but the act that pro- 
duced the injury being made apparent may, in the instances indicated, 
furnish the ground for a presumption that negUgence set that act in 
motion. The maxim does not go to the extent of impljdng that you 
may from the mere fact of an injury infer what physical act produced 
that injiuy; but it means that when the physical act has been shown 
or is apparent and is not explained by the defendant, the conclusion 
that negUgence superinduced it may be drawn as a legitimate deduc- 
tion of fact. It permits an inference that the known act which pro- 
duced the injury was a negUgent act, but it does not permit an infer- 



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118 BENEDICK V. POTTS [CHAP. II. 

ence as to what act did produce the injury. Negligence manifestly 
cannot be predicated of any act until you know what the act is. Until 
you know what did occasion an injury, you cannot say that the de- 
fendant was guilty of some negligence that produced that injury. 
There is, therefore, a difference between inferring as a conclusion of 
fact what it was that did the injury; and inferring from a known or 
proven act occasioning the injury that there was negligence in the act 
that did produce the injury. To. the first category the maxim res 
ipsa loquitur has no application; it is confined, when applicable at all, 
solely to the second. In no case where the thing which occasioned the 
injury is unknown has it ever been held that the maxim applies; be- 
cause when the thing which produced the injury is imknown it cannot 
be said to speak or to indicate the existence of causative negligence. 
In all the cases, whether the relation of carrier and passenger existed 
or not, the injury alone furnished no evidence of negUgence — some- 
thing more was required to be shown. For instance: In Penn. R. R. 
Co. V. MacKinney, 124 Pa. St. 462, it was said: '' A passenger's leg is 
broken, while on his passage, in a railroad car. This mere fact is no 
evidence of negligence on the part of the carrier until something 
further be shown. If the witness who swears to the injury testifies 
also that it was caused by a crash in a collision with another train of 
cars belonging to the same carrier, the presumption of negligence 
immediately arises; not, however, from the fact that the leg was 
broken, but from the circumstances attending the fact." And so in 
Byrne v, Boadle, 2 Hurl. & Colt. 728, there was proof not only of an 
injury but there was evidence to show how the injury happened, and 
the presumption of negligence was applied, not because of there being 
an injury, but because of the way or manner in which the injiuy was 
produced. And in Howser's case, 80 Md. 146, the injury was caused 
by cross-ties falling from a moving train upon the plaintiff who was 
walking by the side of the track, and the presumption of negUgence 
was allowed, not as an inference deducible from the injiuy itself, but 
as a conclusion resulting from the method in which and the instru- 
mentality by which the injury had been occasioned. In the recent 
case of Consolidated Traction Co. v. Thalheimer, Comi; of Errors and 
Appeals, N. J., 2 Amer. Neg. Rep. 196,^ it appeared that the plaintiff 
was a passenger of the appellant, and, having been notified by the 
conductor that the car was approaching the point where she desired 
to alight, got up from her seat and walked to the door while the car 
was in motion, and, while going through the doorway, she was thrown 
into the street by a sudden lurch and thus injured. The court said: 
" At all events, the fact that such a lurch or jerk occurred, as would 
have been imlikely to occm* if proper care had been exercised, brings 
the ca^e within the maxim res ipsa loquitur. ^^ The inference of negli- 
gence arose not from the injury to the passenger, but from the act that 

1 59 N. J. Law, 474. 



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SECT. IV.] BENEDICK V. POTTS 119 

caused the injury. In B. & 0. R. R. v. Worthington, 21 Md. 275, the 
train was derailed in consequence of an open switch, and it was held 
that the injury thus inflicted on the passenger was presumptive 
evidence of negligence — not that the mere injury raised such a pre- 
sumption, but that the injury caused in the way and imder the cir- 
cimistances shown indicated actionable negligence imless satisfactorily 
explained. 

Whether, therefore, there be a contractual relation between the par- 
ties or not, there must be proof of negUgence or proof of some circxmi- 
stances from which negligence may be inferred, before an action can 
be sustained. And whether you characterize that inference an ordi- 
nary presimiption of fact, or say of the act that caused the injury, the 
thing speaks for itself, you assert merely a rebuttable conclusion de- 
duced from known and obvious, premises. It follows, of course, that 
when the dd that caused the injury is wholly unknown or undisclosed, 
it is simply snd essentially impossible to affirm that there was a neg- 
ligent act; and neither the doctrine of res ipsa loquitur nor any other 
principle of presumption can be invoked to fasten a liability upon the 
party charged with having by negligence caused the injmy for the 
infliction of which a suit has been brought. 

Now, in the case at bar there is no evidence that the car on the track 
was out of repair. The car went safely to its destination, carrying 
the other occupants. There is no evidence that the roof of the tunnel 
struck the appellant, or that the fact that a small part of the central 
plank of the tunnel roof had been slabbed off had the most remote 
connection with the accident. It is a case presenting not a single cir- 
cumstance showing how or by what agency the injury occurred, and 
in which, with nothing but the isolated fact of the injury having hap- 
pened, being proved, it is insisted that the jury shall be allowed to 
speculate as to the cause that produced it, and then to infer from the 
cause thus assumed but not established, that there was actionable neg- 
ligence. It is not an attempt to infer negligence from an apparent 
cause, but to infer the cause of the injury from the naked fact of in- 
jury, and then to superadd the further inference that this inferred 
cause proceeded from negligence. If in Howser's case, supra, there 
had been no other evidence than the mere fact of an injury, it cannot 
be pretended that the jury would have been allowed to speculate as to 
how the injury had occurred. 

The appellant was on the car when it entered the tunnel; he was 
not on the car when it emerged, but was found in an unconscious state 
in the tunnel. There was no defect in or abnormal condition affecting 
the means of actual transportation. The other occupants of the car 
passed safely through. What caused the appellant to be out of the 
car is a matter of pure conjecture. No one has explained or attempted 
to explain how he got where he was found. Indeed, the two persons 
who occupied the front seat were ignorant of the appellant's absence 



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120 FLINT & WALLING MANUF. CO. V. BECKETT [CHAP. II. 

from the car until it had reached its destination, and the appellant 
himself distinctly testified that he did not relax his hold to the car 
and did not attempt to rise, but lowered his head as he entered the 
tunnel. All that is certain is, that he was injured in some way and he 
asks that the jury may be allowed, in the absence of all explanatory 
evidence, to infer that some act of a negligent character for which the 
appellee is responsible, caused the injury sustained by the appellant. 
No case has gone to that extent and no known principle can be cited 
to sanction such a position. There has been no circumstance shown 
which furnishes the foundation for an inference of negligence; and 
the circumstances which have been shown obviously do not bring the 
case within the doctrine of res ipsa loquitur. There was, consequently, 
no error in the ruling complained of, and the judgment of the Circuit 
Court must be affirmed. Judgment affirmed.^ 



* Section V 

The Duty of Care — Misfeasance and Nonfeasance 

FLINT & WALLING MANUFACTURING CO. v BECKETT 
Supreme Court, Indiana, December 18, 1906. 

Reported in 167 Indiana Reports ^ 491. 

Beckett brought this action against the Flint & Walling Manufac- 
turing Company to recover damages for harm done to his bam and the 
contents thereof, owing to the fact that the company constructed a 
windmill thereon in such an insuflScient manner that it fell upon the 
roof of the barn. 

The complaint contained, in substance, the following statements: — 

There was an air-shaft in the centre of the bam, extending from the 
bottom to, and projecting through, the roof. Defendant contracted 
with plaintiff to erect oi\ the air-shaft a windmill consisting of a wheel, 
tower, etc., to be erected in a first-class manner. The defendant 
erected the windmill in a negligent manner; especially in the mode of 
fastening the tower to the air-shaft. In consequence of this defective 
construction, a wind of ordinary velocity caused the windmill to break 
and twist the air-shaft and fall about sixty feet on the roof of the bam. 

Trial in the Circuit Court. Verdict for plaintiff and judgment 
thereon. Defendant company appealed.* 

1 Actiesselskabet Ingrid v. Central R. CJo^216 Fed. 72; Huneke v. West Brigh- 
ton Amusement Co., 80 App. Div. 268; De Glopper v. Nashville R. Co., 123 Tenn. 
633 Accord. 

^ Statement abridged. Part of opinion omitted. 



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SECT, v.] FLINT & WALLING MANUF. CO. V. BECKETT 121 

GiLLETT, J. 

The leading contention of appellant's counsel is that the duty it 
owed to appellee arose out of contract, and that, as appellant was not 
engaged in a public emplojmient, its obligation could only be enforced 
by an action on the contract for a breach thereof. The latter insistence 
cannot be upheld. It is, of course, true that it is not every breach of 
contract which can be counted on as a tort, and it may also be granted 
that if the making of a contract does not bring the parties into such a 
relation that a common-law obligation exists, no action can be main- 
tained in tort for an omission properly to perform the undertaking. 
It by no means follows, however, that this common-law obligation 
may not have its inception in contract. If a defendant may be held 
liable for the neglect of a duty imposed on him, independently of any 
contract, by operation of law, a fortiori ought he to be liable where he 
has come under an obligation to use care as the result of an imdertak- 
ing foimded on a consideration. 

Where the duty has its roots in contract, the imdertaking to observe 
due care may be implied from the relationship, and should it be the 
fact that a breach of the agreement also constitutes such a failure to 
exercise care as amoimts to a tort, the plaintiff may elect, as the com- 
mon-law authorities have it, to sue in case or in assumpsit. It is 
broadly stated in 1 C!omyn's Digest, Action on the Case for Negli- 
gence, A 4, p. 418, that " if a man neglect to do that, which he has 
undertaken to do, an action upon the case lies. . . . But, if there be 
not any neglect in the defendwit, an action upon the case does not lie 
against him, though he do not perform his undertaking." Professor 
Pollock sajrs: " One who enters on the doing of anything attended 
with risk to the persons or property of others is held answerable for 
the use of a certain measure of caution to guard against that risk. To 
name one of the commonest applications, ' those who go personally or 
bring property where they know that they or it may come into col- 
lision with the persons or property of others have by law a duty cast 
upon them to use reasonable care and skill to avoid such collision.' 
. . . In some cases this ground of liability may coexist with a liability 
on contract towards the same person, and arising (as regards the 
breach) out of the same facts. Where a man interferes gratuitously, 
he is bound to act in a reasonable and prudent manner according to 
the circumstances and opportunities of the case. And this duty is not 
affected by the fact, if so it be, that he is acting for reward, in other 
words, under a contract, and may be liable on the contract. The two 
duties are distinct, except so far as the same party cannot be com- 
pensated twice over for the same facts, once for the breach of contract 
and again for the wrong. Historically the liability in tort is older; 
and indeed it was by special development of this view that the action 
of assumpsit, afterwards the common mode of enforcing simple con- . 
tracts, was brought into use. ' If a smith prick my horse with a nail, 



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122 FLINT & WALLING MANUF. CO. V. BECKETT [CHAP. XL 

etc., I shall have my action upon the case against him, without any 
warranty by the smith to do it well. . . . For it is the duty of every 
artificer to exercise his art rightly and truly as he ought.' " Webb's 
Pollock, Torts, 533-536. This general thought also finds expression 
in Mr. Street's valuable work (1 Street, Foundations of Legal Liabil- 
ity, 92). It is there said: " The general doctrine may be laid down 
thus : In every situation where a man undertakes to act or to pursue a 
particular course he is under an implied legal obligation or duty to act 
with reasonable care, to the end that the person or property of others 
may not be injured by any force which he sets in operation or by any 
agent for which he is responsible. If he fails to exercise the degree of 
caution which the law requires in a particular situation, he is held 
liable for any damage that results to another just as if he had bound 
himself by an obligatory promise to exercise the required degree of 
care. In this view, statements so frequently seen in negligence cases, 
to the effect that men are bound to act with due and reasonable care, 
are really vital and significant expressions. If there had been any 
remedial necessity for so declaring, it could obviously have been said 
without violence to the principle that men who undertake to act are 
subject to a fictitious or implied promise to act with due care." See 
also Howard v. Shepherd, (1850) 9 C. B. (67 Eng. Com. Law) 296, 
321; Coy v. Indianapolis Gas Co., (1897) 146 Ind. 655, 36 L. R. A. 
635; Parrill v. Cleveland, etc., R. Co., (1900) 23 Ind. App. 638; Rich 
V. New York, etc., R. Co., (1882) 87 N. Y. 382; Dean v. McLean, 
(1875) 48 Vt. 412, 21 Am. Rep. 130; Stock v. City of Boston, (1889) 
149 Mass. 410, 21 N. E. 871, 14 Am. St. 430; Bickford v, Richards, 
(1891) 154 Mass. 163, 27 N. E. 1014, 26 Am. St. 224; Addison, Torts 
(3d ed.), p. 13; 1 Thompson, Negligence (2d ed.), § 6; 1 Shearman 
& Redfield, Negligence (5th ed.), §§ 9, 22; Saimders, Negligence, 55, 
121; 6 Cyc. Law and Proc. 688. 

The position in which appellant placed this large and heavy struc- 
ture, located, as it was, upon the barn, some seventy feet above the 
earth, was such that it was calculated to do great harm to appellee's 
property should it fall. We cannot doubt, in view of the terms of the 
contract, construed in the light of the practical construction which the 
parties gave to it, to say nothing of the extraneous agreement set forth 
in the complaint, that it was the duty of appellant to exercise ordi- 
nary care to secure the tower in such a manner that this heavy and 
exposed structure would not, imder the action of ordinary winds, 
weave around and become detached from the body of the air-shaft. 
Insecurely fastened, as the complaint shows that this structure was, 
appellant was bound to apprehend that it might fall, and that, if it 
did, great injury would thereby be occasioned to appellee. It was 
also bound to apprehend, from the very care and skill which it im- 
pliedly held itself out as exercising (a circumstance calculated to 
throw appellee oflf his guard), and from the fact that an examination 



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SECT, v.] FLINT A WALLING MANUF. CO. V. BECKETT 123 

was difficult, that in all probability the defects would not be observed 
in time to avoid the injury. Indeed, as laid down in Mowbray v. 
Merryweather, [1895] 2 Q. B. 640/ and Devlin v. Smith, (1882) 89 
N. Y. 470, 42 Am. Rep. 311, appellee owed no duty, so far as appel- 
lant was concerned, to examine the tower. The contrivance was in- 
herently dangerous, and the circumstances of placing it upon the bam, 
as shown, made it calculated to eventuate in harm. This being true, 
and as there was no intervening responsible agency between appellee 
and the wrong, so that the causal relation remained unbroken, we can 
perceive no reason for acquitting appellant of responsibility as a tort 
feasor. See Wharton, Negligence (2d ed.), § 438; 1 Beven, NegU- 
gence (2d ed.), 62; Roddy v. Missouri Pac.R. Co., (1891) 104 Mo. 
234, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. 333. It is not neces- 
sary to consider the extent to which contracts may impose obligations 
to exercise care for the protection of third persons, for here the relation 
is direct and immediate, but we quote, as showing that there is clearly 
a liability in tort, in such a case as this, the following general state- 
ments in 1 Shearman & Redfield, Negligence (5th ed.), § 117, with 
reference to the liability for selling dangerous goods: " But one who 
knowingly seUs an article intrinsically dangerous to human life or 
health, such as poison, explosive oils or diseased meat, concealing from 
the buyer knowledge of that fact, is responsible to any person who, 
without fault on the part of himself or any other person, sufficient to 
break the chain of causation, is injured thereby. And we see no reason 
why the same rule should not apply to articles known to be dangerous 
to property." 

A number of questions are argued by appellant's counsel which are 
based upon the contention that the theory of the complaint was that 
appellant had committed a breach of contract. The latter insistence 
is based on the fact that the contract is set out in full in the com- 
plaint. It is often difficult to determine whether, in the statement of 
such a cause of action as the one under consideration, wherein the 
very breach of the contract also constitutes negligence, the purpose of 
the pleader was to rely upon a breach of contract or to charge negli- 
gence in the violation of the implied duty which was created by the 
undertaking of the defendant. It is true that in an action on the case 
for negligence, wherein the declaration or complaint is not based on 
mere nonfeasance it is not necessary to plead a consideration, and, 
therefore, where the action is based on the manner in which an under- 
taking was performed, or, in other words, on some misfeasance or mal- 
feasance, the allegation of a consideration may be regarded as one of 
the markings of an action ex contractu. But we do not imderstand 
that this is a controlling consideration; on the contrary, it does not 
appear to admit of question that if the contract or consideration be 
set out as a matter of inducement only, the plaintiff's action may be 



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124 FLINT A WALLING MANUF. CO. V. BECKETT [CHAP. II. 

regarded as one in case for a violation of the common-law duty which 
the circumstances had imposed upon the defendant. 1 Chitty, Plead- 
ing, ♦ISS; Dickson v, Clifton, 2 Wils. 319; Watson, Damages for Per. 
Inj., § 570; 21 Ency. PL and Pr., 913. We are especially impressed 
with the view that in code pleading, which was designed preeminently 
to be a S3rstem of fact pleading, a plaintiff, in suing in tort, may 
properly set out his contract, as constituting the underlying fact, 
instead of charging the defendant's imdertaking in general terms, and 
that the plaintiff does not thereby necessarily commit himself to the 
theory that his action is for breach of contract. Leeds v. City of Rich- 
mond, (1885) 102 Ind. 372; Parrill v. Cleveland, etc., R. Co., supra; 
McMurtry v. Kentucky Cent. R. Co., (1886) 84 Ky. 462, 1 S. W. 815; 
Watson, Damages for Per. Inj., § 570. In the complaint before us 
appellee not only sets out the written contract, but he pleads a sup- 
plemental or subsidiary agreement as well, so that it can hardly be 
said that he relied on the written contract as the foundation of the 
action. He charges no breach of the contract except as it can be 
implied from the allegations of negligence; he alleges damages '' by 
reason of the defendant's negligence, carelessness, imprudence, and 
unskilfubess in erecting, constructing, and fastening said steel tower 
to said air-shaft as aforesaid; " he charges, in setting forth the total 
amount of his damages, that they were occasioned " by reason of the 
defendant's negligence and failure of duty as herein alleged," and he 
avers that he " had no notice or knowledge of the faulty, negligent, 
and unskilful erection of said mill," and that he himself was without 
fault or negligence in the premises. In view of the general structure 
of the complaint, and applying to it the rule that a construction of a 
pleading which will give effect to all of its material allegations is to 
be preferred, where reasonably possible (Monnett v. Turpie, [1892] 
133 Ind. 424), it appears to us that it must be held that the action was 
for the tort. But, admitting that there is room for doubt on this 
subject, the fact that the court below, as the record plainly shows, 
tried the cause on the theory that it was an action ex delicto, must 
settle the question against the contention of appellant. Lake Erie, 
etc., R. Co. V, Acres, (1886) 108 Ind. 548; Diggs v. Way, (1899) 22 
Ind. App. 617. 

Judgment affirmed,^ 

1 Carpenter v. Walker, 170 Ala. 659; Miller v. Fletcher, 142 Ga. 668; Zabron v. 
Cunard Co., 151 la. 345; Randolph v. Snyder, 139 Ky. 159; Sprin^eld Egg Co. 
V. Sprin^eld Ice Co., 259 Mo. 664; HaSes v. Raines, 146 ^fo. App. 232, 239; 
Robinson v, ThreadgiU, 13 Ired. Law, 39; Hobbs v. Smith, 27 Okl. 830 Accord. 



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SECT, v.] KELLY V. METROPOLITAN R. CO. 125 

KELLY V. METROPOLITAN R. CO. 

In the Court of Appeal, April 24, 1895. 
Reported in [1895] 1 Queen's Bench, 944. 

Appeal from an order of a judge at chambers affirming an order of 
a master directing that the plaintiflf's bill of costs should be referred 
back to be drawn on the county court scale. 

The action was brought to recover damages for personal injuries to 
the plaintiff while a passenger on the defendants' railway. The state- 
ment of claim alleged an agreement by the defendants to carry the 
plaintiff safely, and a breach of that agreement in negligently and 
improperly managing the train in which he was, so that it ran into 
the wall at Baker Street Station, whereby the plaintiff sustained 
injury. It was admitted by the defendants that the accident occurred 
by the negUgence of the engine-driver in not turning off steam in time 
to prevent the train nmning into the dead-end at the station. A sum 
of 20Z. was paid into court, and the jury returned a verdict for the 
plaintiff for 25!. 

When the plaintiff's costs were taken in to be taxed, the master 
was of opinion that, on the authority of Taylor v. Manchester, Shef- 
field, and Lincohishire Ry. Co., [1895] 1 Q. B. 134, the act of the 
engine-driver being one of omission, the action was founded on con- 
tract, and that therefore the plaintiff was only entitled to costs on the 
coimty court scale. On appeal, this decision was affirmed by Day, J. 

The plaintiff appealed. 

Kemp, Q. C, and Cagney, for the plaintiff, submitted that the action 
was in fact an action of tort, and was tried as such, and that the 
plaintiff was entitled to costs on the High Court scale. 

Lawson WaMon, Q. C, and George EllioUj for the defendants. The 
duty of the defendants was contractual, and they were bound to take 
due care not to injure the plaintiff. The act which caused the injury 
was an omission to turn off steam, and amounted to a nonfeasance. 
It was not an act of commission or misfeasance, and the defendants 
were not liable in tort. The distinction is dealt with in the judgment 
of Lindley, L. J., and A. L. Smith, L. J., in Taylor v, Manchester, 
Sheffield, and Lincolnshire Ry. Co., [1895] 1 Q. B. 134, and the present 
case comes within that authority. 

[They also cited Foulkes v. Metropolitan District Ry. Co., 4 C. P. 
D. 267; 5 C. P. D. 157.] 

A. L. Smith, L. J., read the following judgment: ^ There appears 
to have been some misapprehension as to what was decided in the case 
of Taylor v. Manchester, Sheffield, and Lincohishire Ry. Co., [1895] 
1 Q. B. 134, to which I was a party. 

* The opinion of Lord Esher, M. R., is omitted. 



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126 KJ3LLY V. METROPOLITAN R. CO. [CHAP. II. 

The plaintiff in the present case was a passenger on the defendants' 
railway, and whilst lawfully riding in one of their carriages was in- 
jured by its being negligently nm into a dead-end by the defendants' 
driver. 

It has been thought by the master, and also by Day, J., that, be- 
cause the negligence was that the driver omitted to turn off steam, 
this constituted a nonfeasance or omission within what was said in the 
above-mentioned case, and that as the plaintiff had recovered 25L and 
no more he was only entitled to county court costs. I am clearly of 
opinion that this is not what was decided, nor is any such statement 
to be found in that judgment. 

The distinction between acts of commission or misfeasance, and 
acts of omission or nonfeasance, does not depend on whether a driver 
or signalman of a defendant company has negligently turned on steam 
or negligently hoisted a signal, or whether he has negligently omitted 
to do the one or the other. The distinction is this, if the cause of 
complaint be for an act of omission or nonfeasance which without 
proof of a contract to do what has been left undone would not give 
rise to any cause of action (because no duty apart from contract to 
do what is complained of exists), then the action is foimded upon 
contract and not upon tort. If, on the other hand, the relation of the 
plaintiff and the defendants be such that a duty arises from that rela- 
tionship, irrespective of contract, to take due care, and the defendants 
are negligent, then the action is one of tort, and as regards the County 
Court Acts and costs this is what was laid down in the above-men- 
tioned case. The appeal should be allowed with costs here and below. 

RiGBY, L. J. I entirely agree. It appears to me that the attempt 
to dissect the act of the defendants' servant, and to treat the mere 
omission to turn off steam as a nonfeasance within the meaning of the 
cases referred to, altogether fails. An engine-driver is in charge of the 
train, and a passenger is in that train, independently of contract, with 
the permission of the defendants. That passenger is injured in con- 
sequence of the train being negligently brought into collision with the 
dead-end. The proper description of what was done is that it was 
a negligent act in so managing the train as to allow it to come into 
contact with the dead-end and so cause the accident. It is a case in 
which the company by their servant neglected a duty which they owed 
to the plaintiff — that is to say, it was a case in wh^ch an action of 
tort could be brought. Appeal allowed} 

^ The settled practice allows an action against a carrier either upon contract or 
upon tort, as best suits the purposes of the pleader. 3 Hutchinson, Gamers (3d 
ed.), § 1326. 



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SECT, v.] SOUTHERN RAILWAY COMPANY V. GRIZZLE 127 



SOUTHERN RAILWAY COMPANY v. GRIZZLE 

Supreme Court, Georgia, January 13, 1906. 

Reported in 124 Georgia Reports, 735. 

Action by Mrs. Grizzle against the Southern Railway Company 
and T. A. O'Neal. 

The petition alleged, in substance, that the petitioner's husband 
was killed by the negligence of the railway company, and of O'Neal, 
who was the engineer in charge of the train, while the train was being 
operated over a pubUc-road crossing. It was alleged, inter alia, that 
no bell was rung nor whistle sounded, nor the speed of the train 
checked, and that the requirements of the blow-post law ^ were en- 
tirely disr^arded by the engineer. To this petition O'Neal demurred 
on several grounds. The demurrer was overruled, and O'Neal 
excepted.* 

Cobb, P. J. 1. An agent is not ordinarily liable to third persons 
for mere nonfeasance. Kimbrough v. Boswell, 119 Ga. 210. An 
agent is, however, Uable to third persons for misfeasance.' Nonfeas- 
ance is the total omission or failure of the agent to enter upon the 
performance of some distinct duty or undertaking which he has agreed 
with his principal to do. Misfeasance means the improper doing of an 
act which the agent might lawfully do; or, in other words, it is the 
performing of his duty to his principal in such a manner as to infringe 
upon the rights and privileges of third persons. Where an agent fails 
to use reasonable care or diligence in the performance of his duty, he 
will be personally responsible to a third person who is injured by such 
misfeasance. The agent's liability in such cases is not based upon the 
ground of his agency, but upon the ground that he is a wrong-doer, 
and as such he is responsible for any injury he may cause. When 
once he enters upon the performance of his contract with his principal, 
and in doing so omits, or fails to take reasonable care in the commis- 
sion of, some act which he should do in its performance, whereby some 
third person is injured, he is responsible therefor to the same extent as 
if he had committed the wrong in his own behalf. See 2 Clark & 

^ Sect, 2222. ''There must be fixed on the line of said roads, and at the distance 
of four hundred yards from the centre of each of such road crossings, and on each 
side thereof, a post, and the engineer shall be required, whenever he shall arrive at 
either of said posts, to blow the whistle of the locomotive until it arrives at the pub- 
lic road, and to simultaneously check and keep checkinj; the speed thereof, so as to 
stop in time should any person or thing be crossing said track on said road/' 

sect. 2224. '' If any engineer neclects to blow said whistle as required, and to 
check the speed as required^ he is guuty of a Doisdemeanor. . . ." — Georgia Code 
of 1895. 

> Only so much of the case is siven as relates to a single point. Statement 
abridged. Part of opinion <Mnitted. 

» But see Ma^^er v, Thompson, 104 Ala. 611 ; Carter v. Atlantic R. Co., 84 S. C. 
456; Lough v. Davis, 30 Wash. 204. 



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128 SOUTHERN RAILWAY COMPANY V. GRIZZLE [CHAP. H. 

Skyles on Agency, 1297 et seq. Misfeasance may involve also to some 
extent the idea of not doing; as where an agent engaged in the per- 
formance of his undertaking does not do something which it is his 
duty to do under the circumstances, or does not take that precaution 
or does not exercise that care which a due regard to the rights of others 
requires. All this is not doing, but it is not the not doing of that which 
is imposed upon the agent merely by virtue of his relation, but of that 
which is imposed upon him by law as a responsible individual in com- 
mon with all other members of society. It is the same not doing which 
constitutes actionable negligence in any relation. Mechem on Ag. 
§ 672. As was said by Gray, C. J., in Obsome v. Morgan, 130 Mass. 
102 (39 Am. Rep. 439) : " If the agent onye actually undertakes and 
enters upon the execution of a particular work, it is his duty to use 
reasonable care in the manner of executing it, so as not to cause any 
injury to third persons which may be the natural consequence of his 
acts; and he cannot, by abandoning its execution midway and leaving 
things in a dangerous condition, exempt himself from liability to any 
person who suffers injury by reason of his having so left them without 
proper safeguards. This is not nonfeasance or doing nothing, but it is 
misfeasance, doing improperly." In that case the agent was held Uable 
by the fall of a tackle-block and chains from an iron rail suspended 
from the ceiling of a room, which fell for the reason that the agent had 
suffered them to remain in such a manner and so unprotected that 
they fell upon and injured the plaintiff. In Bell v. Josseljm, 3 Gray, 
309 (63 Am. Dec. 742), Metcalf, J., said: " Assuming that he was a 
mere agent, yet the injury for which this action was brought was not 
caused by his nonfeasance, but by his misfeasance. Nonfeasance is 
the omission of an act which a person ought to do; misfeasance is the 
improper doing of an act which a person might lawfully do. . . . The 
defendant's omission to examine the state of the pipes, . . . before 
causing the water to be let on, was a nonfeasance. But if he had not 
caused the water to be let on, that nonfeasance would not have injured 
the plaintiff." 

In the present case the failure of the engineer to comply with the 
requirements of the blow-post law was not doing, but the running of 
the train over the crossing at a high rate of speed without giving the 
signals required by law was a positive act, and the violation of a duty 
which both the engineer and the railroad company owed to travelers 
upon the highway. The engineer having once imdertaken in behalf 
of the principal to run the train, it was incumbent upon him to run 
it in the manner prescribed by law; and a failure to comply with the 
law, although it involved an act of omission, was not an act of mere 
nonfeasance, but was an act of misfeasance. This view is strength- 
ened by the fact that the blow-post law renders the engineer indict- 
able for failure to comply with its provisions. The allegations of the 



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SECT, v.] BLACK V. N. Y., N. H., AND HARTFORD R. CO. 129 

petition were therefore sufl5cient to charge O'Neal with a positive 
tort, for which the plaintiff would be entitled to bring her action 
against him.^ 



BLACK V. NEW YORK, NEW HAVEN, AND 
HARTFORD R. CO. 

Supreme Judicial Court, Massachxjsetts, January 2, 1907. 
Reported tn 193 MassachusetU Reports f 448. 

Tort for personal injuries alleged to have been caused by the 
negUgence of the servants of the defendant on February 7, 1903, 
while the plaintiff was a passenger of the defendant. Writ dated 
March 20, 1903. 

At the trial in the Superior Court, Wait, J., at the close of the plain- 
tiff's evidence ordered a verdict for the defendant; and the plaintiff 
alleged exceptions. The material evidence is described or quoted in 
the opinion. 

Knowlton, C. J. This action was brought to recover for an injury 
alleged to have been caused by the negUgence of the defendant's serv- 
ants. The plaintiff was a passenger on the defendant's train, which 
ran from Boston through Ashmont on the evening of February 7, 
1903. He testified to having become so intoxicated that he had no 
recollection of anything that occurred after leaving a cigar store in 
Boston, until he awoke in the Boston City Hospital, about four o'clock 
the next day. One Thompson testified " that he took the 9.23 train 
on the evening of February 7, 1903, at the South Station in Boston 
for Ashmont, and occupied a seat near the rear of the last car of the 
train; that there were about twenty passengers in the car, and he 
noticed Black sitting in the seat opposite, very erect, with his eyes 
closed. When the conductor came through, Mr. Black went through 
his pockets as if he were looking for a ticket, and not being able to find 
it, tendered a fifty-cent piece in pajmient for his fare. The conductor 
began to name off the stations from Field's Comer first and then 
Ashmont and when he said ' Ashmont,' Mr. Black nodded his head. 
The conductor gave him his change and his rebate check. At Ash- 
mont, where the train stops, there is a gravelled walk, running the 
whole length, as a platform, then there is a flight of steps, ten or 
twelve, that leads up to the asphalt walk around the station, so when 
you go up from the steps you have to walk along this walk. The 

» Stiewel v. Borman, 63 Ark. 30; Owens v. Nichols, 139 Ga. 475: Baird v. Ship- 
man, 132 m. 16; Tippecanoe Loan & Trust Co. v. Jester, 180 Ind. 357; Ward v. 
Pullman Co., 131 Ky. 142; Consolidated Gas Co. v, Connor. 114 Md. 140: Ellis v, 
McNaughton, 76 Mich. 237; Orcutt v. Century Bldg. Co., :201 Mo. 424; Hagerty 
V. Montana (>e Co., 38 Mont. 69; Horner v. llawrence, 37 N. J. Law, 46; Scmos- 
ser V, Great Northern R. Co., 20 N. D. 406, 411; Greenberg v, Whitcomb, 90 Wis. 
225 Accord. 



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130 BLACK V. N. Y., N. H., AND HARTFORD R. CO. [CHAP. U. 

conductor and brakeman took Black out of the car, with one on each 
side. The distance from the steps of the car to the steps that lead up 
to the station was twenty-five feet. As they went along the platform, 
the conductor and trainman were on each side of him. They tried to 
stand him up, but his legs would sink away from him. They sort of 
helped him up and carried him to the bottom of the steps. When 
they went to the bottom of the steps, they continued, one on each side 
of him. Then one of the men got on one side with his arm around him 
and the other back of him sort of pushing him, and they took him up 
about the fifth or sixth step, and after they got him up there, they 
turned right around and left him and went down the steps. Mr. Black 
sort of balanced himself there just a minute and then fell completely 
backward. He timied a complete somersault and struck on the back 
of his head. The railroad men just had time to get down to the foot of 
the steps. There was a railing that led up those steps and the steps 
were about ten feet wide. Mr. Black was upon the right-hand side 
going up and he was left right near the railing. When he fell, he did 
not seize hold of anything, his arms were at his side." 

On this testimony the jury might find that the plaintiff was so in- 
toxicated as to be incapable of standing, or walking, or caring for 
himself in any way, and that the defendant's servants, knowing his 
condition, left him halfway up the steps where they knew, or ought to 
have known, that he was in great danger of falling and being seriously 
injured. They were under no obligation to remove him from the car, 
or to provide for his safety after he left the car. But they voluntarily 
undertook to help him from the car, and they were bound to use ordi- 
nary care in what they did that n[iight affect his safety. Not only in 
the act of removal, but in the place where they left him, it was their 
duty to have reasonable regard for his safety in view of his manifest 
condition. The jury might have found that they were negligent in 
leaving him on the steps, where a fall would be likely to do him much 
harm. Moody v. Boston & Maine Railroad, 189 Mass. 277. 

The defence rests principally upon the fact that the plaintiff was 
intoxicated, and was incapable of caring for himself after he was taken 
from the train, and therefore was not in the exercise of due care. If 
his voluntary intoxication was a direct and proximate cause of the 
injury, he cannot recover. The plaintiff contends that it was not a 
cause, but a mere condition, well known to the defendant's servants, 
and that their act was the direct and proximate cause of the injury, 
with which no other act or omission had any causal connection. The 
distinction here referred to is well recognized in law. . . . 

We are of opinion that the jury in the present case might have 
found that the plaintiff was free from any negligence that was a direct 
and proximate cause of the injury. Exceptions sustained,^ 

1 Nor£hem R. Co. v. State, 29 Md. 420; Dyche v, Vicksburg R. Ck)., 79 Mias. 
361; Bresnahan v. Loaisdale Co., (R. I. 1900) 51 Atl. 624 Accord. 



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SECT, v.] UNION PACIFIC RAILWAY COMPANY V. CAPPIER 131 

UNION PACIFIC RAILWAY COMPANY v. CAPPIER 

SuPBEME CouBT, Kansas, Apbil 11, 1903. 

Reported in 66 Kanaae Reports, 649. 

Error from Wyandotte District Court. 

Smith, J. This was an action brought by Adeline Cappier, the 
mother of Irvin Ezelle, to recover damages resulting to her by reason 
of the loss of her son, who was run over by a car of plaintiff in error, 
and died from the injuries received. The trial court, at the close of 
the evidence introduced to support a recovery by plaintiff below, held 
that no careless act of the railway company's servants in the operation 
of the car was shown, and refused to permit the case to be considered 
by the jury on the allegations and attempted proof of such negligence. 
Tlie petition, however, contained an averment that the injured person 
had one leg and an arm cut off by the car-wheels, and that the serv- 
ants of the railway company failed to call a surgeon, or to render him 
any assistance after the accident, but permitted him to remain by the 
side of the tracks and bleed to death. Under this charge of negligence 
a recovery was had. 

While attempting to cross the railway tracks Ezelle was struck by 
a moving freight-car pushed by an engine. A yardmaster in charge of 
the switching operations was riding on the end of the car nearest to 
the deceased and gave warning by shouting to him. The warning was 
either too late or no heed was given to it. The engine was stopped. 
After the injured man was clear of the track, the yardmaster signalled 
the engineer to move ahead, fearing, as he testified, that a passenger 
train then about due would come upon them. The locomotive and 
car went forward over a bridge, where the general yardmaster was 
informed of the accident and an ambulance was siunmoned by tele- 
phone. The yardmaster then went back where the injured man 
was lying and found three Union Pacific switchmen binding up the 
wounded limbs and doing what they could to stop the flow of blood. 
The ambulance arrived about thirty minutes later and Ezelle was 
taken to a hospital, where he died a few hours afterward. 

In answer to particular questions of fact, the jury found that the 
accident occurred at 5.35 i^.m.; that immediately one of the railway 
employees telephoned to poUce headquarters for help for the injured 
man; that the ambulance started at 6.05 p. m. and reached the nearest 
hospital with Ezelle at 6.20 p.m., where he received proper medical 
and surgical treatment. Judgment against the railway company was 
based on the following question and answer: — 

" Ques. Did not defendant's employees bind up Ezelle's wounds 
and try to stop the flow of blood as soon as they could after the acci- 
dent happened ? Ans. No." 

See also Willes, J., in Skelton v. London R. Co., L. R. 2 C. P. 631, 636: Bailey v. 
Walker, 29 Mo. 407; Thome v. Deas, 4 Johns. 84, 96; Hyde v. Moffat, 16 Vt. 271. 



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132 UNION PACIFIC RAILWAY COMPANY V. CAPPIER [CHAP. II, 

The lack of diligence in the respect stated was intended, no doubt, 
to apply to the yardmaster, engineer, and fireman in charge of the car 
and engine. 

These facts bring us to a consideration of the legal duty of these 
employees toward the injured man after his condition became known. 
Counsel for defendant in error quotes the language found in Beach on 
Contributory Negligence (3d ed.), § 215, as follows: — 

" Under certain circumstances, the railroad may owe a duty to a 
trespasser after the injury. When a trespasser has been run down, it 
is the plain duty of the railway company to render whatever service 
is possible to mitigate the severity of the injury. The train that has 
occasioned the harm must be stopped, and the injured person looked 
after; and, when it seems necessary, removed to a place of safety, and 
carefully nursed, until other reUef can be brought to the disabled 
person." 

The principal authority cited in support of this doctrine is Northern 
Central Railway Co. v. The State, use of Price et al, 29 Md. 420, 96 
Am. Dec. 545. The court in that case first held that there was evi- 
dence enough to justify the jury in finding that the operatives of the 
train were neghgent in running it too fast over a road-crossing without 
sounding the whistle, and that the number of brakemen was insufl5- 
cient to check its speed. Such negligence was held suflicient to uphold 
the verdict, and would seem to be all that was necessary to be said. 
The coiut, however, proceeded to state that, from whatever cause 
the collision occurred, it was the duty of the servants of the company, 
when the man was found on the pilot of the engine in a helpless and 
insensible condition, to remove him, and to do it with proper regard 
to his safety and the laws of himianity. In that case the injured per- 
son was taken in charge by the servants of the railway company and, 
being apparently dead, without notice to his family, or sending for a 
physician to ascertain his condition, he was moved to defendant's 
warehouse, laid on a plank and locked up for the night. The next 
morning, when the warehouse was opened, it was found that during 
the night the man had revived from his stunned condition and moved 
some paces from the spot where he had been laid, and was found in a 
stooping posture, dead but still warm, having died from hemorrhage 
of the arteries of one leg, which was crushed at and above the knee. 
It had been proposed to place him in the defendant's station-house, 
which was a comfortable building, but the telegraph operator objected, 
and directed him to be taken into the warehouse, a place used for the 
deposit of old barrels and other rubbish. 

The Maryland case does not support what is so broadly stated in 
Beach on Contributory Negligence. It is cited by Judge Cooley, in 
his work on Torts, in a note to a chapter devoted to the negligence of 
bailees (ch. xx.), indicating that the learned author understood the 
reasoning of the decision to apply where the duty began after the 
railway employees had taken charge of the injm^d person. 



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SECT. Vj UNION PACIFIC RAILWAY COMPANY V. CAPPIER 133 

After the trespasser on the track of a railway company has been 
injured in coUision with a train, and the servants of the company have 
assumed to take charge of him, the duty arises to exercise such care 
in hi& treatment as the circumstances will allow. We are imable, how- 
ever, to approve the doctrine that when the acts of a trespasser him- 
self result in his injury, where his own negligent conduct is alone the 
cause, those in charge of the instrument which inflicted the hurt, being 
innocent of wrong-doing, are nevertheless blamable in law if they neg- 
lect to administer to the suflferings of him whose wounds we might 
say were self-imposed. With the himiane side of the question courts 
are not concerned. It is the omission or negUgent discharge of legal 
duties only which come within the sphere of judicial cognizance. For 
withholding reUef from the suflfering, for failing to respond to the calls 
of worthy charity, or for faltering in the bestowment of brotherly 
love on the unfortunate, penalties are foimd not in the laws ,of men, 
but in that higher law, the violation of which is condenmed by the 
voice of conscience, whose sentence of punishment for the recreant act 
is swift and sure. In the law of contracts it is now well understood 
that a promise founded on a moral obligation will not be enforced in 
the courts. Bishop states that some of the older authorities recognize 
a moral obUgation as valid, and sajrs: — 

" Such a doctrine, carried to its legitunate results, would release the 
tribunals from the duty to administer the law of the land; and put, in 
the place of law, the varying ideas of morals which the changing in- 
ciunbents of the bench might from time to time entertain." (Bish. 
Cont. § 44.) 

Ezelle's injuries were inflicted, as the court below held, without the 
fault of the yardmaster, engineer, or fireman in charge of the car and 
locomotive. The railway company was no more responsible than it 
would have been had the deceased been run down by the cars of an- 
other railroad company on a track parallel with that of plaintiff in 
error. If no duty was imposed on the servants of defendant below to 
take charge of, and care for, the wounded man in such a case, how 
could a duty arise under the circumstances of the case at bar ? In 
Barrows on NegUgence, page 4, it is said: — 

*' The duty must be owing from the defendant to the plaintiff, 
otherwise there can be no negligence, so far as the plaintiff is con- * 
cemed; . . . and the duty must be owing to plaintiff in an individual 
capacity, and not merely as one of the general public. 

" This excludes from actionable negligence all failures to observe 
the obligations imposed by charity, gratitude, generosity, and the kin- 
dred virtues. The moral law would obligate an attempt to rescue a 
person in a perilous position, — as a drowning child, — but the law of 
the land does not require it, no matter how little personal risk it might 
involve, provided that the person who declines to act is not respon- 
sible for the peril." (See-, also, Kenney v. The Hannibal & St. Joseph 
Raihx)ad Company, 70 Mo. 252, 257.) 



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134 HUNICKE V. MERAMEC QUARRY COMPANY [CHAP. II. 

In the several cases cited in the brief of counsel for defendant in 
error to sustain the judgment of the trial court, it will be found that 
the negligence on which recoveries were based occurred after the time 
when the person injured was in the custody and care of those who 
were at fault in failing to give him proper treatment. 

The judgment of the court below will be reversed, with directions 
to enter judgment on the findings of the jury in favor of the railway 
company. 

AU the justices concurring.^ 



HUNICKE V. MERAMEC QUARRY COMPANY 

Supreme Court of Missouri, December 19, 1914. 

Reported in 262 Missouri Reports^ 560. 

WooDSON, P. J. . . . I do not understand counsel for plaintiff to 
make the broad claim that, in the absence of the question of emer- 
gejuyy, presented in this case, it would have been the duty of the 
defendant to have furnished medical or surgical treatment for the 
injured man, upon the occasion mentioned; but I do understand 
counsel to contend, and which I beheve is the law, that when an 
employee is engaged in any dangerous business for the master, and 
while in the performance of his duties, as such, he is so badly injured 
that he is thereby rendered physically or mentally incapable of pro- 
curing medical assistance for himself, then that duty, as a matter of 
law, is devolved upon the master, and that he must perform that duty 
with reasonable diligence and in a reasonable manner, through the 
agency of such of his employees as may be present at the time. 

In other words, without trying to state the law in detail governing 
the master's duties in all cases of this character, that duty is put in 
operation whenever, under the facts and circumstances of the case, 
the employee is thereby so injured that he or she is incapacitated 
from caring for himself or herself, as the case may be. 

The uncontradicted evidence in this case shows that the deceased 
was so badly injured that he was physically incapacitated to care for 
himself or to engage medical or surgical treatment; also, that the 
character of his injuries was such as required immediate surgical at- 
tention, for it was apparent to all present that his leg was frightfully 
crushed, and that his life's blood was freely flowing from his body. 
So obvious was this that several of those present, at the time of the 

1 Allen V, Hlxson, 111 Ga. 460; Griswold v. Boston R. Co.. 183 Mass. 434; 
Stager v. Laundry Co., 38 Or. 480, 489; SchoU v. Belcher, 63 Or. 310: OUett v. 
Pennsylvania R. Co., 201 Pa. St. 361; King v. Interstate R. Co., 23 R. I. 583; 
Riley v. Gulf R. Co., (Tex. Civ. App.) 16 S. W. 595 Acc&rd. See also Kenney v. 
Hannibal R. Co., 70 Mo. 252. 

Whitesides v. Southern R. Co.. 128 N. C. 229 (divided court) cmtra. See also 
Dyche v. Vicksbui;g R. Co., 79 Miss. 361. 



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SECT, v.] HUNICKE V. MERAMEC QUARRY COMPANY 135 

accident, tried by their crude methods, to stop its flow. But the 
highest officer of the company present, the superintendent, thought 
none of their remedies were worthy of trial and told them their pro- 
posed treatment would do no good. He then telephoned to Dr. Kirk, 
at Kimswick, the condition of the injured man, Hunicke, and re- 
quested him to come to Wicks and treat the injiu^ man; but the 
doctor being previously engaged in a serious case, could not leave it. 
The doctor, however, telephoned the superintendent to bring the in- 
jured party to Kimswick, some two miles distant, and that he would 
there treayhim. 

The evidence shows that both Wicks and Kimswick were on the 
railroad and that a hand-car was present which could have been used 
in conveying Hunicke from the former to the latter place for treat- 
ment. 

For some reason not made dear, the superintendent declined to 
take the injured man to Kimswick for treatment, but telephoned the 
facts of the injury to the manager of the company at St. Louis, some 
twelve or fourteen miles distant, who telephoned back to the super- 
intendent to place the injured man on the next train and send him to 
St. Louis. Tliis was done; and some three or four hours later, the 
train arrived in the city; and upon the arrival of the train Hunicke 
was speedily taken to the hospital where his limb was amputated; 
but in the meantime practically all of the blood of his body had flowed 
therefrom, and he died shortly thereafter. 

In the statement of the case we. have set out much of the evidence 
tending to show the negligence of the defendant in not procuring 
surgical treatment for Hunicke more promptly, and that he would 
not have died had he received prompt treatment. That evidence 
tended to show that Kimswick was only two miles distant from the 
place of injury and that the injured man could have been taken there 
on a hand-car in a very few minutes, probably from fifteen to twenty, 
at the outside. Had this been done, in all probability the flow of blood 
would have been stanched several hours before it was finally stopped 
in the city of St. Louis. 

It is true that there was some evidence which tended to show that 
such a trip on a hand-car would have been rough and jolting, and 
thereby might have aggravated the flow of the blood, but conceding 
that to be true, it could not have caused more waste of blood than did 
the constant flow during the hours that passed while he was waiting 
for the train and being conveyed to the city of St. Louis thereon. And 
it seems to me that common sense would teach us that a trip on a 
hand-car to Kimswick would not have caused the blood to flow more 
freely than the trip on the train to St. Louis, six or seven times as far, 
would have done. 

But be that as it may, when we consider those facts in connection 
with all the other facts and circumstances shown by the evidence, we 



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136 HUNICKE V. MERAMEC QUARRY COMPANY [CHAP. II. 

have reached the conclusion that this, as well as the question of negli- 
gence in delaying the procurement of a surgeon, was for the jury, and 
that the evidence introduced was sufficient to make out a prima fade 
case for the plaintiflF. 

In other words, we are of the opinion that the evidence tended to 
show that the company was guilty of negligence in not using more 
diligence in procuring medical and surgical treatment for this party; 
also that it tended to show that said negligence was the proximate 
cause of his death. 

In my opinion there is no possibility of doubt but what the law is 
that, whenever one person employs another to perform dangerous 
work, and while performing that work he is so badly injured as to 
incapacitate him from caring for himself, then the duty of providing 
medical treatment for him is devolved upon the employer; and that 
duty in my opinion, grows out of the fact that when we get down to 
the real facts in all such cases, there is an imexpressed humane and 
natural understanding existing between them to the effect that when- 
ever any one in such a case is so injured that he cannot care for himself, 
then the employer will furnish him medical or surgical treatment as 
the case may be. 

This is common knowledge. There is not an industrial institution 
in this coimtry, great or small, where that practice is not being carried 
on today; and that has been the custom and usage among men from 
the dawn of civilization down to the present day, and will continue to 
be practised in the future, just so long as the himian heart beats in 
sympathy for the unfortunate, and desires to aid suffering humanity. 
The same principle imderhes all other avocations of life. Even armies 
while engaged in actual warfare observe and obey this rule when pos- 
sible. The soldier who refuses to render surgical or medical aid to the 
victim of his own sword, is eschewed by all decent men; while upon 
the other hand, all who administer to the wants and necessities of the 
sick and wounded are considered as God's noblemen and as princes 
among men. So imiversally true and deep-seated is this himiane feel- 
ing among men, and so universally recognized and practised among 
them, that it has become a world-wide rule of moral conduct among 
men, brothers, friends and foes; and it sajrs to one and all, You must 
exercise all reasonable efforts and means at hand to alleviate the pain 
and suffering and save the Uves and limbs of those who have been 
stricken in your presence. For the violation of this rule of moral 
conduct there is no penalty attached save the condemnation of God 
and the scorn of all good men and women. 

But seeing the wisdom, goodness and justice of this moral law, the 
law of the land laid its strong hand upon it, the same as it did upon 
many other good and useful customs of England, and breathed into 
it a living rule of legal conduct among men. It says imto all who em- 



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BECT. v.] DEPUE V. FLATAU 137 

ploy labor that, because of this universally practised custom of men 
to furnish medical and siu'gical aid for those who are stricken in their 
presence, you must furnish the employee with such services when he 
is so badly injured that he is incapacitated from caring for himself. 

This is but the application or extension of the common-law rule 
which requires the master to furnish his servant with a safe place in 
which to work, and safe instrumentalities with which to perform that 
labor. 

That law grew out of the old customs and usages of the English 
people, of furnishing their servants with a safe place in which to work 
and safe instrumentalities with which to labor. So imiversally true 
was that custom that the law read into all contracts of labor an im- 
plied promise on the part of the master to furnish those safeguards to 
his servants. There is no statutory or written law upon the subject. 
It is simply what is called the unwritten or common law of England, 
which has been adopted by statutes in this and many other States of 
the Union. 

So in like manner into the universal cilstom of employers furnishing 
his employees with medical aid when so badly injured that they could 
not care for fliemselves, the common law, as in the cases of the safety 
appliances before mentioned, breathed an implied agreement or duty 
on the part of the former to furnish the latter medical or surgical aid 
whenever he was so badly injured that he could not care for himself. 

This law, like the one previously mentioned, has no statutory 
origin, but has ripened into a law from wise and himiane usages and 
customs that are so old that the memory of man runneth not to the 
contrary, and will continue so long as the conduct of man is prompted 
and governed by love and humane sentiments. 

As previously st&ted, I am firmly of the opinion that the petition 
stated a good cause of action against the defendant, and that the 
evidence was sufficient to make a case for the jury; and so believing, 
I think the action of the trial court in granting a new trial to the 
plaintiff for the first and second reasons assigned by counsel for 
defendant, was not erroneous, but proper.^ 



DEPUE V. FLATAU 

Supreme Court, Minnesota, March 15, 1907. 

Reported in 100 Minnesota ReportSj 299. 

Action in the District Court for Watonwan County to recover 
$5000 for personal injuries. The case was tried before Lorin Cray, J., 
who, at the conclusion of plaintiff's testimony, dismissed the action. 

> Ohio R. Co. V. Early, 141 Ind. 73; Raasch v. Elite Laundry Co., 98 Minn. 357 
(semble); Salter v. Nebraska Telephone Co., 79 Neb. 373 (semhle) Accord. See 
also Shaw v. Milwaukee R. Co., 103 Minn. 8. 

It has been held also that such a duty is incidental to the relation of carrier and 



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138 DEPUE V. PLATAU [CHAP. U. 

From an order denying a motion for a new trial, plaintiff appealed. 
Reversed. 

Brown, J. The facts in this somewhat imusnal case are as follows: 
Plaintiff was a cattle buyer, and accustomed to drive through the 
coimtiy in the pursuit of his business, bujring cattle, hides, and furs 
from the farmers. On the evening of January 23, 1905, about five or 
5.30 o'clock, after having been out a day or two in the country, he 
called at the house of defendants, about seven miles from Madelia, 
where he resided. His object was to inspect some cattle which Matau, 
Sr., had for sale, and if arrangements could be made to piu*chase the 
same. It was dark at the time of his arrival, but he inspected the 
cattle in the bam, and suggested to defendant that, being unable to 
determine their value by reason of the darkness, he was not prepared 
to make an offer for the cattle, and requested the privilege of remain- 
ing over ni^t, to the end that a bargain might be made imderstand- 
ingly in the morning. His request was not granted. Plaintiff then 
bought some furs from other members of defendants' family, and 
Flatau, Sr., invited him to remain for supper. Under this invitation 
plaintiff entered the house, paid for the furs, and was given supper 
with the family. After the evening meal, plaintiff and both defend- 
ants repaired to the sitting-room of the house, and plaintiff made prep- 
aration to depart for his home. His team had not been unhitched 
from the cutter, but was tied to a hitching post near the house. The 
testimony from this point leaves the facts in some doubt. Plaintiff 
testified that soon after reaching the sitting-room he was taken with a 
fainting spell and fell to the floor. He remembers very Uttle of what 
occurred after that, though he does recall that, after fainting, he again 
requested permission to remain at defendants' over night, and that his 
request was refused. Defendants both deny that this request was 
made, and testified, when called for cross-examination on the trial, 
that plaintiff put on his overshoes and buffalo coat imaided, and that, 
while adjusting a shawl about his neck, he stumbled against a parti- 
tion between the dining-room and the sitting-room, but that he did not 
fall to the floor. Defendant Flatau, Jr., assisted him in arranging his 
shawl, and the evidence tends to show that he conducted him from 
the house out of doors and assisted him into his cutter, adjusting the 
robes about him and attending to other details preparatory to start- 
ing the team on its journey. Though the evidence is somewhat in 
doubt as to the cause of plaintiff's condition while in defendants' 
home, it is clear that he was seriously ill and too weak to take care of 
himself. He was in this condition when Flatau, Jr., assisted him 
into the cutter. He was unable to hold the reins to guide his team, 

passenger. Lajme v. Chicago R. Co., 175 Mo. App. 35. 41. Compare Eambour v. 
Boston R. Co., 77 N. H. 33: Southern R. Co. v. Sewell, 18 Ga. App. 544. 

It has always been regarded as incidental to the employment of seamen. The 
Iroquois, 194 U. S. 240; iu. S. v. Knowles, 4 Sawy. 517; Scaxff v. Metcalf, 107 N. Y. 
211. 



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SECT, v.] DEPUE V. FLATAU 139 

and young Flatau threw them over his shoulders and started the 
team towards home, going a short distance, as he testified, for the 
pmpose of seeing that the horses took the right road to Madelia. 
PlaintiflF was found early next morning by the roadside, about three 
quarters of a mile from defendants' home, nearly frozen to death. 
He had been taken with another fainting spell soon after leaving 
defendants' premises, and had fallen from his cutter, where he re- 
mained the entire night. He was discovered by a passing farmer, 
taken to his home, and revived. The result of his experience neces- 
sitated the amputation of several of his fingers, and he was otherwise 
physically injured and his health impaired. Plaintiff thereafter 
brought this action against defendants, father and son, on the theory 
that his injuries were occasioned solely by their negUgent and wrong- 
ful conduct in refusing him accommodations for the night, and, know- 
ing his weak physical condition, or at least having reasonable grounds 
for knowing it, by reason of which he was unable to care for himself, 
in sending him out unattended to make his way to Madelia the best 
he could. At the conclusion of plaintiff's case, the trial court dis- 
missed the action, on the ground that the evidence was insufficient to 
justify a recovery. Plaintiff appealed from an order denying a new 
trial. 

Two questions are presented for consideration: (1) Whether, under 
the facts stated, defendants owed any duty to plaintiff which they 
negligently violated; and (2) whether the evidence is sufficient to 
take the case to the jury upon the question whether defendants knew, 
or imder the circxmistances' disclosed ought to have known, of his 
weak physical condition, and that it would endanger his life to send 
him home unattended. 

The case is an unusual one on its factfe, and " all-four " precedents 
are difficult to find in the books. In fact, after considerable research, 
we have foimd no case whose facts are identical with those at bar. 
It is insisted by defendants that they owed plaintiff no duty to enter- 
tain him during the night in question, and were not guilty of any 
negligent misconduct in refusing him accommodations, or in sending 
him home im3er the circxmistances disclosed. Reliance is had for 
support of this contention upon the general rule as stated in note to 
Union Pacific v. Cappier, [66 Kan. 649, 72 Pac. 281] 69 L. R. A. 513, 
where it is said: " Those duties which are dictated merely by good 
morals or by humane considerations are not within the domain of the 
law. Feelings of kindlinefe toft ^sympathy maytifove the Good Sa- 
maritan to minister to the needs of the sick and wounded at the road- 
side, but the law imposes no such obligation; and suffering humanity 

has no legal complaint against those who pass by on the other side 

Unless, therefore, the relation existing between the sick, helpless, or 
injured and those who witness their distress is such that the law im- 
poses the duty of providing the necessary relief, there is neither obliga- 



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140 DEPUE V. FLATAU [CHAP. II. 

tion to minister on the one hand, nor cause for l^al complaint on the 
other." This is no doubt a correct statement of the general rule 
appUcable to the Good Samaritan, but it by no means controls a case 
like that at bar. 

The facts of this case bring it within the more comprehensive prin- 
ciple that whenever a person is placed in such a position with regard 
to another that it is obvious that, if he does not use due care in his own 
conduct, he will cause injury to that person, the duty at once arises to 
exercise care commensurate with the situation in which he thiis finds 
himself, and with which he is confronted, to avoid such danger; and 
a negligent failure to perform the duty renders him liable for the 
consequences of his ne^ect. 

This principle appUes to varied situations arising from non-contract 
relations. It protects the trespasser from wanton or wilful injiuy. 
Its extends to the licensee, and requires the exercise of reasonable care 
to avoid an unnecessary injiuy to him. It imposes upon the owner of 
premises, which he expressly or impUedly invites persons to visit, 
whether for the transaction of business or otherwise, the obligation to 
keep the same in reasonably safe condition for use, though it does not 
embrace those sentimental or social duties often prompting human 
action. 21 Am. & Eng. Enc. (2d ed.) 471; Barrows, Neg. 3. Those 
entering the premises of another by invitation are entitled to a higher 
degree of care than those who are present by mere sufiferance. Bar- 
rows, Neg. 304. The rule stated is supported by a long Hst of authori- 
ties both in England and this country, and is expressed in the familiar 
maxim, " Sic utere tuOj*^ etc. They will be found collected in the works 
above cited, and also in 1 Thompson, Neg. (2d ed.), § 694. It is thus 
stated in Heaven v, Pender, L. R. 11 Q. B. Div. 503: " The proposi- 
tion which these recognized eases suggest, and which is, therefore, to 
be deduced from them, is that, whenever one person is by circimi- 
stances placed in such a position with regard to another that every one 
of ordinary sense who did think would at once recognize that if he did 
not use ordinary care and skill in his own conduct with regard to those 
circumstances he would cause danger of injiuy to the person or prop- 
erty of the other, a duty arises to use ordinary care and skill to avoid 
such danger." It applies with greater strictness to conduct towards 
persons under disability, and imposes the obligation as a matter of 
law, not mere sentiment, at least to refrain from any affirmative action 
that might result in injury to them. A valuable note to Union Pacific 
V. Cappier, 69 L. R. A. 513, discusses at length the character of the 
duty and obligation of those coming into relation with sick and dis- 
abled persons, and numerous analogous cases are collected and 
analyzed. 

In the case at bar defendants were under no contract obligation to 
minister to plaintiff in his distress; but humanity demanded that they 
do so, if they understood and appreciated his condition. And, though 



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SECT, v.] DEPUE V. FLATAU 141 

those acts which humanity demands are not alwa3rs legal obligations, 
the rule to which we have adverted applied to the relation existing 
between these parties on this occasion and protected plaintiflF from 
acts at their hands that would expose him to personal harm. He was 
not a trespasser upon their premises, but^ on the contrary, was there 
by the express invitation of Flatau, Sr. He was taken suddenly 
ill while their guest, and the law, as well as himianity, required 
that he be not exposed in his helpless condition to the merciless 
elements. 

The case, inife substantial facts, is not imlike that of Cincinnati v, 
Marrs' Adm'x, 27 Ky. Law, 388, 85 S. W. 188, 70 L. R. A. 291. In 
that case it appears that one Marrs was found asleep in the yards of 
the railway company in an intoxicated condition. The yard em- 
ployees discovered him, aroused him from his stupor, and ordered him 
off the tracks. They knew that he was intoxicated, and that he had 
left a train recently arrived at the station, and he appeared to them 
dazed and lost. About forty minutes later, while the yard employees 
were engaged in switching, they ran over him and kill^ him. He had 
again fallen asleep on one of the tracks. The coiut held the railway 
company liable; that, imder the circmnstances disclosed, it was the 
duty of the yard employees to see that Marrs was safely out of the 
yards, or, in default of that, to exercise ordinary care to avoid injur- 
ing him; and that it was reasonable to require them to anticipate his 
probable continued presence in the yards. The case at bar is much 
stronger, for here plaintiff was not intoxicated, nor a trespasser, but, 
on the contrary, was in defendants' house as their guest, and was there 
taken suddenly ill in their presence, and, if his physical condition was 
known and appreciated, they must have known that to compel him to 
.leave their home unattended would expose him to serious danger. 

We imderstand from the record that the learned trial court held in 
harmony with the view of the law here expressed, but dismissed the 
action for the reason, as stated in the memorandum denjring a new 
trial, that there was no evidence that either of the defendants knew, 
or in the exercise of ordinary care should have known, plaintiff's phys- 
ical condition, or that allowing him to proceed on his journey would 
expose him to danger. Of coiu-se, to make the act of defendants a 
violation of their duty in the premises, it should appear that they 
knew and appreciated his serious condition. The evidence on this 
feature of the case is not so clear as might be desired, but a majority 
of the court are of opinion that it is sufficient to charge both defend- 
ants with knowledge of plaintiff's condition — ^jj^|g|||jy^jj|^jj^^|j^ 

Defendant Flatau/or., testified that he was in the room at all times 
while plaintiff was in the house and observed his demeanor, and, 
though he denied that plaintiff fell to the floor in a faint or otherwise, 
yet the fact that plaintiff was seriously ill cannot be questioned. 



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142 DEPUE V. FLATAU [CHAP. II. 

Ratau, Jr., conducted him to his cutter, assisted him in, observed that 
he was incapable of holding the reins to guide his team, and for that 
reason threw them over his shoulders. If defendants knew and ap- 
preciated his condition, their act in sending him out to make his way 
to Madelia the best he could was wrongful and rendered them liable 
in damages. We do not wish to be imderstood as holding that de- 
fendants were imder absolute duty to entertain plaintiflF during the 
night. Whether they could conveniently do so does not appear. What 
they should or could have done in the premises can only be deter- 
mined from a full view of the evidence disclosing their situation, and 
their faciUties for communicating his condition to his friends, or near 
neighbors, if any there were. All these facts will enable the jury to . 
determine whether, within the rules of negUgence appUcable to the 
case, defendants neglected any duty they owed plaintM. 

Order reversed,^ 

Dutch Penal Code, Art. 450. One who, witnessing the danger of death 
with which another is suddenly threatened, neglects to give or furnish him 
such assistance as he can give or procure without reasonable fear of danger to 
himself or to others, is to be punished, if the death of the person in distress fol- 
lows, by a detention of three months at most and an amende of three himdred 
florins at most. 

German Civil Code, section 826. One who wilfully brings about damage 
to another in a manner running counter to good morals is bound to make 
reparation to the other for the damage. 

Stammler, Lehre von DEM RiCHTiOEN Rechte, 489-490. '' I am walking 
along the bank of a river," 8S.ys liszt in his stimulating discussion of this 
subject, " and I see a man fall in the water and struggle with the waves. I am 
able to rescue him without any peril to myself; I neglect to do so although 
other help is not at hand and I foresee that he must drown. In my opinion, 
liability under section 826 cannot be denied.'' [Liszt, Die Deliktsobligationen . 
des B. G. B., 72.) Surely not. 

Planck, BttRGERUCHES Gesbtzbuch (3d ed.), II, 995 (§ 826, note e). The 
duty to make reparation for damage under section 826 may also be groimded 
upon an omission. But it is presupposed that th^ act which was omitted must 
be regarded, under the circumstances of the case, as commanded by good 
morals and that the omission took place with the purpose of bringing about 
injury to the other. If one holds fast to this, the consequences which result 
from the foregoing principle are not as doubtful as Liszt (p. 72) seems to 
assume. 

Bentham, Complete Works (Bowring's ed.) I, 164. 

There is simple corporal injury, when, without lawful cause, an individual, 
seeing another in danger, abstains from helping him, and the evil happens in 
jjonsequence. 

1 See also Weyniire v. Wolfe. 52 l&: SS^Twoi v. Watidns, 148 Mo. App* 621. 
Compare Texas R. Co. v. Geraldon, 64 Tex.' Civ. App. 71. 

On the whole subject, see Ames, Law and Morals, 22 Harvard Law Rev. 99. 
111-113; Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, 66 
University of Pennsylvania Law Rev. 217, 316; Bruce, Humanity and the Law, 
73 Central Law Joum. 336. 



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SECT, v.] DEPUE V. FLATAU 143 

Explanations : — Ahstcdns from helping him. 

Every man is bound to assist those who have need of assistance, if he can 
do it without exposing himself to sensible inconvenience. This obligation is 
stronger in proportion as the danger is the grater for the one, and the trouble 
of preserving him the less for the other. Such would be the case of a man 
sleeping near the fire, and an individual seeing the clothes of the first catch 
fire, and doing nothing towards extinguishing them: the crime wotdd be 
greater if he refrained from acting not simply from idleness, but from malice 
or some pecuniary interest. 

Bentham, PRiNaPLES OP MoRAXS AND LEGISLATION, chap. xix, sec. 1, Par. 
xix (Clarendon Press reprint, pp. 322-323). 

As to the rules of beneficence, these, as far as concerns matters of detail, 
must necessarily be abandoned in great measure to the jurisdiction of private 
ethics. . . . 

The limits of the law on this head seem, however, to be capable of being ex- 
tended a good deal farther than they seem ever to have been extended hitherto. 
In particular, in cases where the person is in danger, why should it not be 
made the duty of every man to save another from mischief, when it can be 
done without prejudicing himself, as well as to abstain from bringing it on 
him. This accordingly is the idea pursued in the body of the work.* 

BenthaM; Theory op Legislation, transl. by Hildreth (5th ed.), pp. 65- 
66. 

As to beneficence, some distinctions are necessary. The law may be ex- 
tended to general objects, such as the care of the poor; but, for details, it is 
necessary to depend upon private morality. . . . 

However, instead of having done too much in this respect, legislators have 
not done enou^. They ought to erect into an offence the refusal or the omis- 
sion of a service of humanity when it would be easy to render it, and when 
some distinct iU clearly results from the refusal; such, for example, as abui- 
doning a wounded man in a solitary road without seeking any assistanpe for 
him; not giving information to a man who is nef^dgently meddling with 
poisons; not reaching out the hand to one who has fallen into a ditch from 
which he cannot extricate himself; in these, and other similar cases, could any 
fault be found with a punishment, exposing the delinquent to a certain degree 
of shame, or sub j ecting him to a pecuniary responsibility for the evil which he 
mi^t have prevented ? 

LrviNOSTON, Drapt Code op Crimes and Punishments por the State 
OP Louisiana. Livingston, Complete Works on Criminal Jurisprudence, 11, 
126-127. 

Article 484. Homicide by omission only, is committed by voluntarily per- 
mitting another to do an act that must, in the natural course of things, cause 
his death, without appiisuig him of his cianger, if the act be involuntary, or 
endeavoring to prevent it if it be voluntary. He shall be presumed to have 
permitted it voluntarily who omits the necessary means of preventing the 
death, when he knows the danger, and can cause it to be avoided, without dan- 

* A woman's head-dress catches fire: water is at hand: a man, instead of assist- 
ing to quench the fire, looks on and laughs at it. A drunken man, falling with his 
face downwards into a puddle, is in danger of suffocation: lifting his h^ a little 
on one side would save tiim : another man sees this and lets him lie. A quantity oi 
gunpowder lies scattered about a room : a man is going into it with a lidbted candle : 
another, knowins this, lets him go in without warning. Who is there that in any of 
these cases would think punishment misapplied ? — Author's Note. 



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144 DEPUE V. FLATAU [CHAP. II. 

ger of personal injury or pecuniary loss. This rule may be illustrated by the 
examples put in the last preceding article: if the blind man is seen walking 
to the precipice by one who knows the danger, can easily apprise him of it, but 
does not; or if one who knows that a glass contains poison, sees him about 
to drink it, either by mistake or with intent to destroy himself, and makes no 
attempt to prevent him: in these cases the omission amounts to homicide.^ 

Macaulay, Notes to Draft op Indian Penal CJodb. Penal Code Pre- 
pared by the Indian Law Commissioners.' Chapter xviii [page 76]. Of 
Offences Affecting the Human Body. Of Offences Affecting Life. 

294. Whoever does any act or omits what he is legally bound to do, with 
the intention of thereby causing, or with the knowledge that he is likely 
thereby to cause, the death of any person, and does by such act or omission 
cause the death of any person, is said to commit the offence of " voluntary 
culpable homicide." 

Note M.^ On Offences Against the Body. Notes to Draft of Penal Code, 
53-56; Macaulay's Complete Works (En^h ed., 1875), vol. Vn, pp. 493- 
497; Morgan and McPherson, Indian Penal Code, 225, 226, notes. 

The first class of offences against the body consists of those offences which 
affect human life; and highest in this first class stand those offences which fall 
imder the definition of volimtary culpable homicide. 

This important part of the law appears to us to require fuller explanation 
than almost any other. 

The first point to which we wish to call the attention of his Lordship in 
Council is the expression " omits what he is legally bound to do," in the defi- 
nition of voluntary culpable homicide. These words, or other words tanta- 
mount in effect, frequently recur in the Code. We think this the most 
convenient place for explaining the reason which has led us so often to employ 
them. For if that reason shall appear to be sufiScient in cases in which hiunan 
life is concerned, it will a fortiori be sufficient in other cases. 

Early in the progress of the Code it became necessary for us to consider the 
following question: When acts are made punishable on the ground that those 
acts produce, or are intended to produce, or are known to be likely to produce 
certain evil effects, to what extent ought omissions which produce, which are 
intended to produce, or which are known to be likely to produce the same evil 
effects to be made punishable ? 

Two things we take to be evident: first, that some of these omissions ou^t 
to be punished in exactly the same manner in which acts are punished: sec- 
ondly, that all these omissions ought not to be punished. It will hardly be dis- 
puted that a jailer who voluntarily causes the death of a prisoner by omitting 
to supply that prisoner with food, or a nurse who voluntarily causes the death 
of an infant intrusted to her care by omitting to take it out of a tub of water 
into which it has fallen, ought to be treated as guilty of murder. On the other 
hand, it will hardly be maintained that a man should be punished as a mur- 
derer because he omitted to relieve a beggar, even though there might be the 
clearest proof that the death of the beggar was the result of the omission, and 
that the man who omitted to give the alms knew that the death of the beggar 

* This propoeed code was not enacted. 

* A Penal Code prepared by the Indian Law Commissioners, and published by 
command of the Governor-General of India in Council; Calcutta, 1837. 

* As to the authorship of these notes, see the preface to the English edition 
(1875) of Macaulay's Works. As to the code itself, see Stephen, History of the 
Criminal Law of England, 298-323. 



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SECT, v.] DEPUE V, FLA-PAU 145 

was likely to be the effect of the omission. It will hardly be maintained that 
a surgeon ought to be treated as a murderer for refusing to go from Calcutta 
to Meerut to perform an operation, although it should be absolutely certain 
that this surgeon was the only person in India who could perform it, and that 
if it were not performed the person who required it would die. It b difficult 
to say whether a Penal Code which should put no omissions on the same foot- 
ing with acts, or a Penal Code which should put all omissions on the same 
footing with acts would produce consequences more absurd and revolting. 
There is no country in which either of these principles is adopted. Indeed, it 
is hard to conceive how, if either were adopted, society could be held together. 

It is plain, therefore, that a middle course must be taken. But it is not easy 
to determine what that middle course ought to be. The absurdity of the two 
extremes is obvious. But there are innumerable intermediate points; and 
wherever the line of demarcation may be drawn it will, we fear, include some 
cases which we might wish to exempt, and will exempt some which we might 
wish to include. 

Mr. Livingston's Code provides that a person shall be considered as guilty 
of homicide who omits to save life, which he could save " without personal 
danger or pecuniary loss." This rule appears to us to be open to serious objec- 
tion. There may be extreme inconvenience without the smallest personal 
danger, or the smallest risk of pecuniary loss; as in the case which we lately 
put of a surgeon smnmoned from Calcutta to Meerut to perform an operation. 
He may be offered such a fee that he would be a gainer by going. He may 
have no ground to apprehend that he should run any greater personal risk by 
journeying to the Upper Provinces than by continuing to reside in Bengal. 
But he is about to proceed to Europe hnmediately, or he expects some mem- 
bers of his family by the next ship, and wishes to be at the presidency to 
receive them. He, therefore, refuses to go. Surely, he ought not, for so reus- 
ing, to be treated as a murderer. It would be somewhat inconsistent to punish 
one man for not staying three months in India to save the life of another, and 
to leave wholly unpunished a man who, enjoying ample wealth, should refuse 
to disburse an anna to save the life of another. Again, it appears to us that it 
may be fit to punish a person as a murderer for causing death by omitting an 
act which cannot be performed without personal datiger or pecuniary loss. 
A parent may be unable to procure food for an infant without money. Yet 
the parent, if he has the meanis, is bound to furnish the infant with food, and 
if. by omitting to do so he voluntarily causes its death, he may with propriety 
be treated as a murderer. A nurse hired to attend a person suffering from an 
infectious disease cannot perform her duty without running some risk of 
infection. Yet if she deserts the sick person, and thus voluntarily causes his 
death, we should be disposed to treat her as a murderer. 

We pronounce with confidence, therefore, that the line ought not to be 
drawn where Mr. Livingston has drawn it. But it is with great diffidence that 
we bring forward our own proposition. It is open to objections : cases may be 
put in which it will operate too severely, and cases in which it will operate too 
leniently; but we are imable to devise a better. 

What we propose is this, that where acts are made punishable on the ground 
that they have caused, or have been intended to cause, or have been known to 
be likely to cause a certain evil effect, omissions which have caused, which 
have b€«n intended to cause, or which have been known to be likely to cause 
the same effect shall be punishable in the same manner; provided that such 



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146 DEPUE V. FLATAU [CHAP. II. 

omissions were, on other grounds, illegal. An omission is illegal (see clause 28) 
if it be an offence, if it be a breach of some direction of law, or if it be such a 
wrong as would be a good ground for a civil action. 

We cannot defend this rule better than by giving a few illustrations of the 
way in which it will operate. A omits to give Z food, and by that omission vol- 
untarily causes Z's death. Is this murder ? Under our rule it is murder if A 
was Z's jailer, directed by the law to furnish Z with food. It is murder if Z 
was the infant child of A, and had therefore a legal right to sustenance, which 
right a civil court would enforce against A. It is murder if Z was a bedridden 
invalid, and A a nurse hired to feed Z. It is murder if A was detaining Z in 
unlawful confinement, and had thus contracted (see clause 338) a legal obli- 
gation to furnish Z, during the continuance of the confinement, with neces- 
saries. It is not murder if Z is a beggar who has no other claim on A man 
that of humanity. 

A omits to tell Z that a river is swollen so high that Z cannot safely attempt 
to ford it, and by this omission voluntarily causes Z's death. This is murder 
if A is a peon stationed by authority to warn travellers from attempting to 
ford the river. It is murder if A is a guide who had contracted to conduct Z. 
It is not murder if A is a person on whom Z has no other claim than that of 
humanity. 

A savage dog fastens on Z; A omits to call off the dog, knowing that if the 
dog be not called off it is likely that Z will be killed. Z is killed. This is 
murder in A, if the dog belonged to A, inasmuch as his omission to take proper 
order with the dog is illegal (clause 273). But if A be a mere passer-by it is 
not murder. 

We are sensible that in some of the oases which we have put, our rule may 
appear too lenient. But we do not think that it can be made more severe, 
without disturbing the whole order of society. It is true that the man who, 
having abundance of wealth, suffers a fellow creature to die of himger at his 
feet, b a bad man, — a worse man, probably, than many of those for whom we 
have provided very severe pimishment. But we are unable to see where, if we 
make such a man legally punishable, we can draw the line. If the rich man 
who refuses to save a beg^^s life at the cost of a little copper is a murderer, is 
the poor man just one d^p'ee above beggary also to be a murderer if he omits 
to invite the beggar to partake his hard-earned rice ? Again, if the rich man is 
a murderer for refusing to save the beggar's life at the cost of a little copper, 
is he also to be a murderer if he refuses to save the beggar's life at the cost 
of a thousand rupees ? Suppose A to be fully convinced that nothing can save 
Z's life, unless Z leave Bengal and reside a year at the Cape, is A, however 
wealthy he may be, to be punished as a miurderer because he will not, at his 
own expense, send Z to the Cape ? Surely not. Yet it will be diflficult to say 
on what principle we can punish A for not spending an anna to save Z's life, 
and leave him unpimished for not spending a thousand rupees to save Z's life. 
The distinction between a legal and an illegal omission is perfectly plain and 
intelligible. But the distinction between a large and a small sum of money is 
very far from being so; not to say that a sum which is small to one man is 
large to another. 

The same argument holds good in the case of the ford. It b true that none 
but a very depraved man would suffer another to be drowned when he might 
prevent it by a word. But if we punbh such a man, where are we to stop ? 
How much exertion are we to require ? Is a person to be a murderer if he does 



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SECT. VI.] MATNABD V. BOSTON AND MAINE RAILROAD 147 

not go fifty yards through the sun of Bengal at noon in May in order to cau- 
tion a traveller against a swollen river ? Is he to be a murderer if he does not 
go a hundred yards? — if he does not go a mile ? — if he does not go ten ? 
What is the precise amount of trouble and inconvenience which he is to en- 
dure ? The distinction between the guide who is bound to conduct the travel- 
ler as safely as he can, and a mere stranger, is a clear distinction. But the dis- 
tinction between a stranger who will not give a halloo to save a man's life, and 
a stranger who will not run a mile to save a man's life, is very far from being 
equally clear. 

It is, indeed, most highly desirable that men should not merely abstain 
from doing harm to their neighbours, but should render active services to their 
neighbours. In general, however, the penal law must content itself with keep- 
ing men from doing positive harm, and must leave to public opinion, and to 
the teachers of morality and religion, the office of fiu*nishing men with motives 
for doing positive good. It is evident that to attempt to punish men by law 
for not rendering to others all the service which it is their duty to render to 
others would be preposterous. We must grant impunity to the vast majority 
of those omissions which a benevolent morality would pronounce reprehen^ 
sible, and must content ourselves with punishing such omissions only when 
they are distinguished from the rest by some circumstance which marks them 
out as peculiarly fit objects of penal legislation. Now, no circumstance ap- 
pears to us so well fitted to be the mark as the circumstance which we have 
selected. It will generally be found in the most atrocious cases of omission; 
it wiU scarcely ever be found in a venial case of omission; and it is more clear 
and certain than any other mark that has occurred to us. That there are 
objections to the line which we propose to draw, we have admitted. But there 
are objections to every line which can be drawn, and some line must be 
drawn. 



Section VI 

LlABILITr OF OCCUPIEBS OF PbEMISBS 

MAYNARD v. BOSTON AND MAINE RAILROAD 

Supreme Jxtdicial Court, MassachusettBj, September 4, 1874. 

Reported in 115 MaasachusetU Reports, 458. 

Tort for the killing of a horse on a railroad by a locomotive engine. 

Upon the trial, the plaintiff admitted that the horse must be con- 
sidered as trespassing upon the railroad, but contended and offered 
evidence tending to show that by an exercise of proper care the injury 
to the horse might have been avoided. The defendants offered evi- 
dence to control this, and tending to show that they did all they rea- 
sonably could do to stop their train before striking the horse. There 
was no evidence of any wanton misconduct on their part. 

The counsel for the defendants contended and asked the presiding 
judge to rule, that the defendants would not be liable, unless the plain- 



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148 MAYNARD V. BOSTON AND MAINE RAILBOAD [CHAP. n. 

tiff proved a reckless and wanton misconduct of their employees in 
the management of the train when the horse was killed. The presid- 
ing judge declined so to rule; but did rule that though the horse was 
trespassing upon the defendants' land at the time, the managers of the 
train could not carelessly run over him, but were bound to use reason- 
able care to avoid injuring him, and that if the jury found that by the 
exercise of reasonable care they might have avoided injuring the 
horse, they \yould be liable. The jiuy foimd for the plaintiff, and the 
defendants alleged exceptions.^ 

Gray, C. J. K the horse had been rightfully upon the defendants' 
land, it would have been their duty to exercise reasonable care to avoid 
injuring the horse. But it being admitted by the plaintiff that his 
horse was trespassing upon the railroad, they did not owe him that 
duty, and were not liable to him for anjrthing short of a reckless and 
wanton misconduct of those employed in the management of their 
train. The defendants were therefore entitled to the instruction which 
they requested. Tonawanda Railroad v. Hunger, 5 Denio, 255; s. c. 
4 Comst. 349; Vandegrift v. Rediker, 2 Zab. 185; Railroad Co. v. 
Skinner. 19 Penn. St. 298; Tower v. Providence & Worcester Rail- 
road, 2 K. 1. 404; Cincinnati, Hamilton & Dajrton Railroad v. Water- 
son, 4 Ohio St. 424; Louisville & Frankfort Railroad v. Ballard, 2 
Met. (Ky.) 177. 

The instruction given to the jury held the defendants to the same 
obligation to the plaintiff as if his horse had been rightfully on their 
land; and made their paramoimt duty to the public of running the 
train with proper speed and safety, and their use of the land set apart 
and fitted for the performance of that duty, subordinate to the care of 
private interests in property which was upon their track without 
right. 

Some passages in the opinion in Eames v. Salem & Lowell Railroad, 
98 Mass. 560, 563, were relied on by the plaintiff's coimsel at the argu- 
ment, and apparently formed the basis of the rulings of the learned 
judge in the Court below. But in that case there was no evidence of 
any negligence or misconduct in the management of the train, and an 
exact definition of the defendants' liability, by reason of such negli- 
gence or misconduct, was not required. In the present case such a 
definition was requested by the defendants in appropriate terms, and 
was refused, and for that refusal their 

Exceptions must he sustained} 

1 Statement abridged. Arguments of counsel omitted. 

« Grand Trunk R. Co. v, Bamett, [191 1] A. C. 361 ; Louisville R. Co. v. Womack, 
173 Fed. 752; Chesapeake R. Co. t;. Hawkins. 174 Fed. 597; Graysonia Lumber 
Co. V. Carroll, 102 Ark. 460; Chicago Terminal Co. v. Kotoski, 199 111. 383; Neice 
V. Chicago R. Co., 254 111. 595; Jordan v. Grand Rapids R. Co., 162 Ind. 464; 
Burgess v, Atchison 1^ Co., 83 Kan. 497; Land6 v. Chicago R. Co., 81 Minn. 279; 
Ingram-Day Lumber Co. v. Harvey, 98 Miss. 11; Koegelt;. Missouri R. Co., 181 
Mo. 379; Hoberg v. Collins, 80 N. J. Law, 425; Gulf R. Co. v. Dees, 44 Okl. 118; 
Woodward v. Southern R. Co., 90 S. C. 262: Norfolk R. Co. v. Wood, 99 Va. 166; 
Huff V, Chesapeake R. Co.. 48 W. Va. 45 Accord. 



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SECT. VI.] HERRICK V. WIXOM 149 

HERRICK V. WIXOM 

SuFBEME Court, Michioan, September 27, 1899. 

Reported in 121 Michigan Reports, 384. 

Trespass on the Case for personal injuries. 

Defendant was the possessor and manager of a tent show or circus. 
On the afternoon of an exhibition plaintiff went inside the tent and 
took a seat. There was a conflict of testimony as to whether plain- 
tiff was invited into the tent by an authorized agent of defendant, or 
whether he entered without any invitation or other justification. A 
feature of the entertainment consisted in the ignition and explosion 
of a giant firecracker, attached to a pipe set in an upright position in 
one of the show rings. Plaintiff sat thirty or forty feet from the place 
where the cracker was exploded. At the explosion, part of the fire- 
cracker flew and struck plaintiff in the eye, whereby he lost the sight 
of his eye. 

The judge left to the jury the question whether it was negligent in 
defendant to explode this firecracker in the inside of the tent and in 
the presence of the audience. 

Then he gave, among others, the following instruction: — 

" Now you must further find, in order that the plaintiff recover, 
that the plaintiff was in the tent, where he was injured, by the invi- 
tation of some person having authority to allow him to go in there. 
If he was a mere trespasser, who forced his way in, then the defend- 
ant owed hJTn no duty that would enable him to recover imder the 
declaration and proofs in this case." . . . 

So in case of persons wrongfully npon engines, cars, or trains. Chicago R. Co. 
V. McDonou^, 112 HI. App. 315; Handley v, Missoiui R. Co., 61 Kan. 237; Planz 
V. Boston R. Co., 157 Mass. 377; Bjomquist v. Boston R. Co., 185 Mass. 130: Fee- 
back V. Missouri R. Co.. 167 Mo. 206; Wickenburg v. Minneapolis R. Co., M 
Minn. 276 (boy of twelve) ; Johnson v. New York R. Co., 173 N. Y. 79; Morgan v. 
Oregon R. Co., 27 Utah, 92. But see Johnson v. Chicago R. Co., 123 la. 224; 
Pierce v. North Carolina R. Co., 124 N. C. 83. As to who is a trespasser in such a 
place, see Yancey v, Boston R. Co., 205 Mass. 162. 

" A wdlway company may lawfully require a wilful trespasser upon one of its 
moving trains to immediately cease his unlawful conduct, by such means as not to 
indicate a willingness to deprive him of his self-control in leaving the train, the 
speed of the train not being so ^at that a personal injury to him should be ex- 
pected to occur, giving due consideration to the duty of the trespasser to cease his 
lawlessness by aU reasonable means in his power and reasonable expectation that 
he will use such means in attempting to do it. It is not sufficient to indicate an 
intentional injury that the party causing it had reasonable ground to expect that 
such a result was withiii reasonable probabilities, otherwise a violation of the duty 
to exercise ordinary care would, of itself, be sufficient to indicate such injury. The 
danger of inflicting a personal injury upon a person by the conduct of another must 
be such as to reasonably permit of a belief that such other either contemplated 
producing it, or, being conscious of the danger that it would occur, imposed such 
danger upon that person in utter disregard of the consequences, to warrant sajring. 
reasonably, that the circumstances inoicate willingness to perpetrate such injury. 
Marshall, J., m Bolin v. Chicago R. Co., 108 Wis. 333, 351-352. See also Hoberg 
V. Collins, 80 N. J. Law, 425, 429. But compare Palmer v. Gordon, 173 Mass. 410; 
Romana v, Boston R. Co., 226 Mass. 533. 



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160 CINCINNATI A ZANESVILLE R. CO. V. SMITH [CHAP. II. 

Verdict of no cause of action. Judgment for defendant. Plaintiflf 
brought error.^ 

Montgomery, J. [After stating the case.] We think this instruc- 
tion faulty, in so far as it was intended to preclude recovery in any 
event if the plaintiflf was found to be a trespasser. It is true that a 
trespasser who suflfers an injury because of a dangerous condition of 
premises is without remedy. But, where a trespasser is discovered 
upon the premises by the owner or occupant, he is not beyond the 
pale of the law, and any negligence resulting in injury will render the 
person guilty of negligence liable to respond in damages. Beach, 
Contrib. Neg. § 50; Whart. Neg. § 346; Marble v. Ross, 124 Mass. 
44; Houston, etc., R. Co. v. Sympkins, 64 Tex. 615 (38 Am. Rep. 
632); Brown v. Lynn, 31 Pa. St. 510 (72 Am. Dec. 768); Needham 
V. Raikoad Co., 37 Cal. 409; Davies v. Mann, 10 Mees. & W. 546; 
1 Shear. & R. Neg. § 99. In this case the negligent act of the defend- 
ant's servant was conmiitted after the audience was made up. The 
presence of plaintiflf was known, and the danger to him from a negli- 
gent act was also known. The question of whether a dangerous experi- 
ment should be attempted in his presence, or whether an experiment 
should be conducted with due care and r^urd to his safety, cannot be 
made to depend upon whether he had forced himself into the tent. 
Every instinct of humanity revolts at such a suggestion. 

For this error the judgment will be reversed, and a new trial 
ordered.* 



CINCINNATI & ZANESVILLE R. CO. v. SMITH 

Supreme Court, Orao, December Term, 1871. 

Reported in 22 Ohio State Reports, 227. 

Error to the Court of Conunon Pleas of Fayette County, reserved 
in the District Court.* 

The plaintiflf below, Richard Smith, sued the defendant below, the 
Cincinnati & Zanesville Railroad Company, to recover the value of 

* Statement abridged. Part of opinion omitted. 

* Rome Furnace Co. v, Patterson, 120 Ga. 521; Fields v. Louisville R. Co., 163 
Ky. 673 Accord. See also Hector Min. Co. v. Robertson, 22 Col. 491; Hobbs v. 
Blanchard, 74 N. H. 116: Stuck v. Kanawha R. Co., 76 W. Va. 453; Peaalee, Duty 
to Seen Trespassers, 27 Harvard Law Rev. 403. 

As to duty to observed child trespasser, see Little Rock R. Co. v. Barker, 39 
Ark. 491, 500: Louisville R. Co. v. Lohges, 6 Ind. App. 288; Baltimore R. Co. v, 
Welch, 114 Md. 536. To observed helpless trespasser, see Tanner v. Louisville 
R. Co., 60 Ala. 621; Pannell v, Nashville R. Co., 97 Ala. 298; Martin v, Chicago 
R. Co., 194 ni. 138; Krenzer v. Pittsburgh R. Co., 151 Ind. 587; Glenn v. Louis- 
ville R. Co., 28 Ky. Law Rep. 949. To trespasser observed in a dangerous posi- 
tion, see Haley v. Kansas City R. Co., 113 Ala. 640; Atkinson v, Kelley, 8 Ala. 
App. 571; St. Louis R. Co. v. Townsend, 69 Ark. 380, 383; Chicago R. Co. v. 
K^toski, 199 ni. 383; Richardson v. Missouri R. Co., 90 Kan. 292; Whitehead v. 
St. Louis R. Co., 99 Mo. 263; Mathews v, Chicago R. Co., 63 Mo. App. 569; 
Omaha R. Co. v. Cook, 42 Neb. 577. 

» Statement rewritten; part of case omitted; argument omitted. 



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SECrr. VI.] CINCINNATI dc ZANBSVILLE R. CO. V. SMITH 151 

two horses alleged to have been killed through the negligence of the 
servants of the defendant in operating one of its trains. The inclosure 
of the plaintiff adjoined the railroad of the defendant; and from this 
inclosure, on the night on which the horses were killed, they escaped 
on to the railroad. 

The Court, among other things, charged the jury as follows: — 

The defendant's servants in this case were not bound to use extraor- 
dinary care or extraordinary means to save the plaintiff's horses. 
But they were bound to use what, in that peculiar business, is ordi- 
nary care and diligence; and if the loss of the horses was the result 
of a want of that ordinary care and diligence, the defendant is 
liable. 

The defendant had the right to the free and unobstructed use of its 
railroad track. And the paramount duty of the emplojrees is the pro- 
tection of the passengers and property in the train, and the train 
itself. 

But this being their paramount duty, they are bound to use ordi- 
nary care and diligence, so as not unnecessarily to injure the property 
of others. 

Under the circumstances of the case, could and would reasonably 
prudent men, skilled in that kind of business, keeping in view as their 
paramoimt duty the protection and safety of the train, its passengers, 
and the property on and about it intrusted to their care, in the exer- 
cise of ordinary care have stopped the train and saved the horses ? 
If so, and the defendant's servants did not so act, the defendant is 
liable in this case; otherwise the defendant is not liable. 

In considering the paramount duty of the employees in the proper 
management of the train for the safety of passengers and property of 
its train, you have a right to determine whether they have other duties 
to perform. It is claimed the engineer had other duties than watching 
the track to perform, which were necessary for the safety of the pas- 
sengers and property of the train, — such as gauging his steam, watch- 
ing time-table, regulating his supply of water, examining his ma- 
chinery, watching for the station-signal, etc. If such were the case, 
he had a lawful right to perform these duties, and was not boimd to 
neglect them to save the plaintiff's horses, nor bound to watch the 
track while performing these duties. They were only bound, imder 
the circumstances of the case, to use ordinary care and diligence to 
save the horses, — the safety of the passengers and property of the 
train being their paramount duty; and if the jury find from the evi- 
dence that the persons in charge of the engine were attending to the 
duties of the train approaching the station at the time of the accident, 
these duties were paramount to watching the track for trespassing 
animals; and if the horses were not, on that account, discovered in 
time to save them by using ordinary means to stop the train, the 
defendant is not Uable. 



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152 CINCINNATI dc ZANESVILLE R. CO. t;. SMITH [CHAP. II. 

It is claimed by the defendant's counsel that off the crossings of the 
raihoad the servants of the railroad company have a right to presume 
that there are no trespassers on the roadway; that they are not bound 
to look out for trespassers except for the safety of passengers or prop- 
erty in charge. It is also claimed that inasmuch as the road at the 
place where the plaintiff's horses got on the track and were killed was 
fenced, on that account the defendant's servants in charge of the 
train were not bound to look out for trespassing stock. Upon this 
question I only can charge you this: That if the raihoad was fenced 
at the place where the horses got on and were killed, and this was 
known to the defendant's employees, you have a right to look to that 
circumstance as reflecting upon and in determining whether the em- 
ployees exercised ordinary care in the management of the train. But 
if they might, in the exercise of ordinary care, have discovered the 
animals, although they were trespassers on the roadway, other than 
at a crossing, in time to have prevented their destruction, it was their 
duty to do so; and if from such want of ordinary care they were not 
discovered in time to prevent their destruction, . the defendant is 
liable for their loss to the plaintiff.^ 

White, J. The whole charge is set out in the bill of exceptions. 
Considering its several parts in connection, and giving to the whole 
a fair construction, we^leem it necessary only to notice two particulars 
in which it is objected to. 

These are: 1. Whether the fact that the horses were trespassing on 
the track excused the servants of the defendant from the exercise of 
ordinary care; and, 2. Whether that fact, and the additional one 
that the road was fenced, excused the engineer, as respects the owner 
of stray animals, from looking ahead to see whether such animals were 
on the track or not. 

In regard to the first of these particulars, it is contended on be- 
half of the railroad company that, as the horses were trespassing 
on the railroad, the company was exempt from using ordinary care 
to save them, and that it was only liable for what is called gross 
negligence. 

The Court instructed the jury that the defendant had the right to 
the free and unobstructed use of its railroad track, and that the para- 
mount duty of its employees was the protection of the passengers 
and property in the train, and the train itself. But this being their 
paramoimt duty, they were bound to use ordinary care and diligence 
so as not unnecessarily to injure the property of others. 

We think the charge stated the law correctly. We see no good rea- 
son, in principle, why a party, so far as may be consistent with the full 
enjoyment of his own rights, ought not to use ordinary care so as not 
unnecessarily to injure the property of others. 

^ The above portions of the instructions are set out in the argument of counsel, 
pp. 235-237. 



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SECT. VI.] CINCINNATI & ZANESVILLE R. CO. V. SMITH 153 

It is true, the rule contended for by the counsel of the plaintiff in 
error is sustained by a number of authorities. But the later and 
better considered cases are to the contrary. Illinois Central R. R. Co. 
V. Middlesworth, 46 111. 494; Bemis v. Conn., &c. R. R., 42 Vt. 375; 
Isbell V. N. Y. R. R. Co., 27 Conn. 393; Redfield's American Railway 
Cases, 355, 356. 

The rule contended for has never been adopted in this State. It 
is, moreover, as respects railroad companies, inconsistent with our 
statute law on the subject. S. & C. 331. 

The facts in the case of the C. H. & D. R. R. Co. v, Waterson & 
Kirk, 4 Ohio St. 424, cited and relied upon by the counsel of the plain- 
tiff in error, were diiOferent from those in the case now before us, and 
we do not regard the rule there laid down as to the Uability of the 
company in that case as applicable to this. 

From what has been said of the charge in the first particular named, 
it would seem to follow that it is xmobjectionable as respects the 
second. If it was the duty of the servants of the company, so far as 
was consistent with their other and paramoimt duties, to use ordi- 
nary care to avoid injuring animals on the track, they were, of course, 
boimd to adopt the ordinary precautions to discover danger, as well 
as to avoid its consequences after it became known. 

The fact that the road was fenced at the place of collision with the 
horses, was a circumstance to be considered in connection with the 
other circumstances of the case in determining whether the engineer 
was guilty of negUgence in not looking ahead and discovering the 
danger in time to avoid it. The fact that the road was fenced ren- 
dered it less probable that wandering animals would be on the track; 
but it cannot be said that the engineer, as a matter of law, by reason 
of the fences, was wholly excused from keeping a lookout ahead of the 
train. 

If the servants of the company in charge of the train, having due 
regard to their duties for the safety of the persons and property in 
their charge, could, by the exercise of ordinary care, have seen and 
saved the horses, we think they were bound to have done so. Bemis 
V. Conn., &c. R. R., supra, 381; Louis. & Nash. R. R. Co. v. Wain- 
scott, 3 Bush, 149.* Judgment affirmed. 

> Schmidt v, Michimn Coal Co^ 169 Mich. 308; Myers v. Boston R. Co., 72 
N. H. 176: Carney v. Concord St. R. Co., 72 N. H. 364: Brown v. Boston R. Co., 
73 N. H. 568; Magar v, Hammond, 171 N. Y. 377; O^Leary v. Brooks Elevator 
Co.. 7 N. D. 668 Accord. See also Houston R. Co. v. Garrett, (Tex. Civ. App.) 160 
S. W. 111. 

As to the effect of a statute prohibiting the particular trespass, see Marra v. 
New York R. Co., 139 App. Div. 707. 

As to when a horse is trespassing, see Taft v. New York R. Co., 167 Mass. 297. 



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154 SHEEHAN V, ST. PAUL A DULUTH R. CO. [CHAP. II. 

SHEEHAN V. ST. PAUL & DULUTH R. CO. 

United States Circuit Court op Appeals, Seventh Circuit, 

October 16, 1896. 

Reported in 46 U. S. Appealer 498. 

Seaman, J.^ The plaintiff at the time of his injury was neither in 
the relation of passenger nor of one in a public crossing or place in 
which the pubUc were licensed to travel, but upon the undisputed facts 
was a mere intruder on the tracks of the defendant, technically a tres- 
passer; and this record excludes any of the elements of unplied license 
or invitation to such use which have given rise to much discussion and 
diversity of views in the courts. Therefore the inquiry is here squarely 
presented. What is the duty which a railway company owes to a tres- 
passer on its tracks, and how and when does the duty arise ? The 
decisions upon this subject uniformly recognize that the trespasser 
cannot be treated as an outlaw; and at the least that, if wantonly 
injured in the operation of the railroad, the company is answerable in 
damages. Clearly, then, an obligation is placed upon the company 
to exercise some degree of care when the danger becomes apparent. 
Is it, however, bound to foresee or assume that rational beings will 
thus enter as trespassers in a place of danger, and to exercise in the 
running of its trains the constant vigilance in view of that probability 
which is imposed for public crossings ? There are cases which would 
seem to hold this strict requirement (see note, 1 Thompson on Negli- 
gence (1880), 448; East Tennessee and Georgia Railroad Co. v. 
St. John, 6 Sneed, 524) ; but by the great preponderance of authority, 
in this coimtry and in England, the more reasonable doctrine is pro- 
noimced, in effect, as follows: That the railroad company has the 
right to a free track in such places; that it is not bound to any act or 
service in anticipation of trespassers thereon; and that the trespasser 
who ventures to enter upon a track for any purpose of his own assumes 
all risks of the conditions which may be found there, including the 
operation of engines and cars. Wright v, Boston and Maine Railroad, 
129 Mass. 440; Philadelphia and Reading Railroad Company v. 
Hummell, 44 Penn. St. 375. The decision by this court, in Cleveland, 
Cincinnati, Chicago and St. Louis Railway Company v. Philips' 
Administrator (1), 24 U. S. Appeals, 489, adopts the view held in this 
line of cases, citing the authorities of which repetition here is imneces- 
sary. The same doctrine prevails in Minnesota, where the injury in 
question arose. Johnson v. Truesdale, 46 Minnesota, 345; Studley 
V. St. Paul & Duluth R. Co., 48 Minnesota, 249. In the latter case it 
was held that there could be no recovery " unless the engineer saw the 
girl in time to avoid the accident, and then was guilty of such gross 
negligence in not trying to avoid it as to evince a reckless disregard of 

^ The statement and part of the opinion are omitted. 



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SECT. VI.] SHEEHAN V. ST. PAUL A DULUTH R. CO. 155 

human Ufe; " and the opinion gives this further exposition of the rule: 
'' The defendant's engineer was under no obligation to anticipate a 
trespasser, or to look out for persons walking upon the track; but, 
upon discovering plaintiff's intestate across the cattle-guard, as he 
claims she was when he noticed that she was in danger, it became the 
engineer's duty to use proper care to avoid running her down. If he 
failed to exercise proper care, he would necessarily be grossly negligent 
and evince a reckless disregard of human life." So in Wisconsin, in 
Anderson v. Chicago, St. Paul, Minneapolis & Omaha Railway Com- 
pany, 87 Wisconsin, 195, 204, it is said: " The use of a railroad is ex- 
clusively for its owners or those acting under its authority, and the 
company is not boimd to the exercise of any active duty of care or 
diligence towards mere trespassers upon its track, to keep a lookout to 
discover or protect them from injury, except that, when discovered in 
a position of danger or peril, it is its duty to use all reasonable and 
proper effort to save and protect them from the probable consequences 
of their indiscretion or negligence." 

The well-established and just rule which holds the railroad com- 
pany to the exercise of constant and strict care against injury through 
its means is applicable only to the relation on which it is founded, of 
an existing duty or obligation. This active or positive duty arises in 
favor of the public at a street crossing or other place at which it is 
presmnable that persons or teams may be met. It is not material, so 
far as concerns this inquiry, whether the place is one for which a law- 
ful right of passage exists, as it is the fact of notice to the company 
arising out of its existence and the probability of its use which im- 
poses the positive duty to exercise care; the requirement of an ex- 
treme d^ree of care being superadded because of the hazards which 
attend the operations of the company. The case of a trespasser on 
the track in a place not open to travel is clearly distinguishable in the 
absence of this notice to the company. There is no constructive 
notice upon which to base the obligation of constant lookout for his 
presence there, and no actual notice up to the moment the trainmen 
have discovered the fact of his peril. As that peril comes wholly from 
his xmauthorized act and temerity, the risk and all positive duty of 
care for his safety rest with the trespasser. The obligation of the 
company and its operatives is not then preexisting, but arises at the 
moment of discovery, and is negative in its nature, — a duty which 
is common to hiunan conduct to make all reasonable effort to avert 
injury to others from means which can be controlled. 

This is the issue presented here. It excludes all inquiry respecting 
the character of the roadbed, cattle-guard, locomotive, brake appli- 
ances or other means of operation, or of the speed or manner of run- 
ning the train up to the moment of notice, because no breach of 
positive duty is involved. It is confined to the evidence relating to 
the discovery by the engineer and fireman of the plaintiff's peril and 



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156 AKBRS V. CHICAGO, AC. R. CO. [CHAP. II. 

to the efforts then made to avert the injury; and out of that to ascer- 
tain whether, in any view which may justly be taken, it is shown that 
these men or the engineer in disregard of the duty which then con- 
fronted them neglected to employ with reasonable promptness the 
means at hand for stopping the train.^ 



Brett, M. R., m HEAVEN v. PENDER 

(1883) 11 Queen's Bench Dwision, 603, 506, 607. 

Brett, M. R. . . . The action is in form and substance an action 
for negligence. That the stage was, through want of attention of the 
defendant's servants, suppUed in a state unsafe for use is not denied. 
But want of attention amoimting to a want of ordinary care is not a 
good cause of action, although injury ensue from such want, unless 
the person charged with such want of ordinary care had a duty to the 
person complaining to use ordinary care in respect of the matter called 
in question. Actionable negligence consists in the neglect of the use 
of ordinary care or skill towards a person 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. The question in thk case is whether 
the defendant owed such a duty to the plaintiff. 



MrrcHELL, J., IN AKERS v. CHICAGO, &c. R. CO. 

(1894) 58 Minnesota, 540, 644. 

MrrcHELL, J. Actionable negligence is the failure to discharge a 
legal duty to the person injured. If there is no duty, there is no negli- 
gence. Even if a defendant owes a duty to some one else, but does not 
owe it to the person injured, no action will Ue. The duty must be due 

1 That in general there is no duty to look out for trespassers on the track or 
right of way, see also Cleveland R. (Jo. v, Tartt, 99 Fed. 369; Louisville R. Co. t;. 
Jones, 191 Ala. 484; CJoudreau v, Connecticut Co., 84 Conn. 406; Atlantic R. Co. 
V. McDonald, 135 Ga. 635; Curd v. Cincinnati R. Co., 163 Ky. 104; Baltimore R. 
Co. V. State, 114 Md. 636; Petur v. Erie R. Co., 151 App. Div. 578; Carter v. Erie 
R. Co., 33 Ohio Cir. Ct. Rep. 377; Laeve v. Missouri R. Co., (Tex. Civ. App.) 136 
S. W. 1129. 

Jeffries v. Seaboard R. Co., 129 N. C. 236 contra. See also Ark. Kirby^s Dig. 
§ 6607; Tenn. Shannon's Code, § 1574 (4). 

As to duty of trainmen in a place where there is a known likelihood of tres- 
passers, see Southern R. Co. v. Di)novan, 84 Ala. 141 ; BuUard v. Southern R. Co., 
116 Ga. 644; Cincinnati R. Co. v. Blankenship, 157 Ky. 699; Risbridger v. Michi- 
gan R. Co., 188 Mich. 672; Fearons v. Kansas City R. Co^ 180 Mo. 208: Eppstein 
V. Missouri R. Co., 197 Mo. 720; Krunmiack v. Missouri R. Co., 98 Neb. 773; St. 
Louis R. Co. V, Hod^, (Okl.) 157 Pac. 60: Whelan t>. Baltimore R. Co., 70 W. 
Va. 442; Whalen v. Chicago R. Co., 75 Wis. 654. Contra: Baltimore R. Co. v. 
Welch, 114 Md. 536; Boden v. Boston R. Co., 205 Mass. 504; Haltiwanger v. 
Columbia R. Co., 64 S. C. 7. Compare Lowery v. Walker, [1911] A. C. 10. 

The trainmen may assume that an adult trespasser, not in obvious peril, will 
look out for himself. Indianapolis R. Co. v. McClaren, 62 Ind. 566; Campbell v. 



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SECT. VI.] LARY V. CLEVELAND R. CO. 157 

to the person injured. These principles are elementary, and are 
equally applicable, whether the duty is imposed by positive statute 
or is founded on general conunon-law principles.^ 



LARY V. CLEVELAND R. CO. 

Supreme Court, Indiana, Noveioer Term, 1881. 

Reported in 78 Indiana ReporU, 323. 

Lart sued the railroad company for damage alleged to have been 
sustained by him, through the negligent failure of the company to 
repair a building standing on its grounds, and formerly used by it as 
a freight house. Answer, a general denial. Upon the trial, the plain- 
tiff introduced his evidence; the defendant demurred to it, and the 
plaintiflf joined in demurrer. The Court sustained the demurrer, and 
the plaintiflf excepted. 

liie facts which the plaintiflf's evidence tended to prove are sub- 
stantially as follows: — 

The railroad company owned half an acre of land between the rail- 
road track and a highway. On this land was a building erected sev- 
eral years before for a freight house. It was no longer used as the 
general freight house, though still used for storing the company's 
wood. A part of the roof of the building was off, and had been so for 
some months. The plaintiff, who was twenty years of age, was in the 
habit of passing the building almost daily, and had noticed that part 
of the roof was off. In a rain storm, the plaintiff went under the plat- 
form of the old freight house, and played there with other young 
people. A piece of the roof was torn off by the wind. The plaintiff, 
being frightened at the noise, ran out, saw the piece of the roof in the 
air, and ran towards the highway; but before or as he reached the 
edge of it, this fragment of the roof fell upon him.* 

Morris, C. [After stating the case.] Upon the facts thus stated, 
can the appellant maintain this action ? 

There is no testimony tending to show that the appellant was at the 
freight house by the invitation of the appellee, nor that he was there 
for the purpose of transacting any business with the appellee. The ap- 
pellant intruded upon the premises of the appellee, and is not, there- 
fore, entitled to that protection which one, expressly or by implication, 
invited into the house or place of business of another, is entitled to. 
The appellant was a trespasser, and as such he entered upon the appel- 
lee's premises, taking the risks of all the mere omissions of the 

Kansas City R. Co., 55 Kan. 536: St. Louis R. Co. v. Herrin, 6 Tex. Civ. App. 718. 
As to a child, see Pennsylvania K. Co. v. Morgan, 82 Pa. St. 134. 

^ ** The duty must be one owed by the defendants to the plaintifFs in respect to 
the very matter or act charged as negligence." — Parsons, C. J., in Pitt^eld 
C. M. Co. V. Pittefield Shoe Co., 71 N. H. 622, 631. 

* Statement abridged. 



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158 LARY V. CLEVELAND R. CO. [CHAP. II. 

appellee as to the condition of the grounds and buildings thus invaded 
without leave. We do not wish to be understood as holding or im- 
plying that if, on the part of the appellee, there had been any act done 
implying a willingness to inflict the injury upon the appellant, it would 
not be liable. But we think there is nothing in the evidence from 
which such an inference can be reasonably drawn. The building 
could be seen by all; its condition was open to the inspection of every 
one; it had been abandoned as a place for the transaction of public 
business; it was in a state of palpable and visible decay, and no one 
was authorized, impUedly or otherwise, to go into or imder it. Under 
such circmnstances, the law say^ to him who intrudes into such a 
place, that he must proceed at his own risk. 

In the case of The Pittsburgh, &c. R. W. Co. v. Bingham, 29 Ohio 
St. 364, the question was: " Is a railroad company bound to exercise 
ordinary care and skill in the erection, structure, or maintenance of 
its station house or houses, as to persons who enter or are at the same, 
not on any business with the company or its agents, nor on any busi- 
ness connected with the operation of its road; but are there without 
objection by the company, and therefore by its mere sufferance or 
permission ? '' The Court answered this question in the negative. 

In the case of Hounsell v. Smyth, 7 C. B. n. s. 731, the plaintiff 
fell into a quarry, left open and imguarded on the imenclosed lands 
of the defendant, over which the pubUc were permitted to travel; it 
was held that the owner was under no legal obligation to fence or 
guard the excavation imless it was so near the public road as to render 
travel thereon dangerous. That the person so travelling over such 
waste lands must take the permission with its concomitant conditions, 
and, it may be, perils. Hardcastle v. The South Yorkshire R. W. Co., 
4 H. & N. 67; Sweeny v. Old Colony, &c. R. R. Co., 10 Allen, 368; 
Knight V. Abert, 6 Barr, 472. 

After reviewing the above and other cases. Judge Boynton, in the 
case of The Pittsburgh, &c. R. W. Co. v. Bingham, supra, says: — 

" The principle imderlying the cases above cited recognizes the right 
of the owner of real property to the exclusive use and enjoyment of 
the same without Uability to others for injuries occasioned by its un- 
safe condition, where the person receiving the injury was not in or near 
the place of danger by lawful right; and where such owner assumed 
no responsibihty for his safety by inviting him there, without giving 
him notice of the existence or inmiinence of the peril to be avoided." 

In the case from which we have quoted, the intestate of the plain- 
tiff was at the defendant's station house, not on any business with it, 
but merely to pass away his time, when, by a severe and sudden blast 
of wind, a portion of the roof of the station house was blown off the 
building and against the intestate, with such force as to kill him. The 
case, in its circmnstances, was not imlike the one before us. Nichol- 
son V. Erie R. W. Co., 41 N. Y. 626; Murray v. McLean, 57 111. 378; 
Durham v. Musselman, 2 Blackf. 96 (18 Am. Dec. 133). 



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SECT. VI.] LARY V. CLEVELAND R. CO. 159 

In the case of Sweeny v. Old Colony, &c. R. R. Co., 10 Allen, 368, 
the Court say: — 

" A Ucensee, who enters on premises by permission only, without 
any enticement, allurement, or inducement being held out to him by 
the owner or occupant, cannot recover damages for injuries caused by 
obstructions or pitfalls. He goes there at his own risk, and enjoys the 
Ucense subject to its concomitant perils." Carleton v. Franconia Iron 
and Steel Co., 99 Mass. 216; Harris v. Stevens, 31 Vt. 79, 90; Wood v, 
Leadbitter, 13 M. & W. 838. 

The evidence in this case brings it, we think, within the principles 
settled by the above cases. 

The appellant contends that the evidence shows that the appellee 
was guilty of gross negligence in not repairing its freight house, and 
that such negligence renders it liable, though he entered upon its 
pranises without invitation or Ucense, as a mere intruder, and was, 
while such intruder, injured; and, in support of this proposition, we 
are referred to the following cases: Lafayette, &c. R. R. Co. v. Adams, 
26 Ind. 76; Indianapolis, &c. R. R. Co. v. McClure, 26 Ind. 370; Gray 
V. Harris, 107 Mass. 492; Isabel v. Hannibal, &c. R. R. Co., 60 Mo. 
475. 

In the first of the above cases, the Court held that, where the negli- 
gence of the company was so gross as to imply a disregard of conse- 
quences or a willingness to inflict the injury, it was Uable, though the 
party injured was not free from fault. In the second case, it was held 
that a railroad company, not required to fence its road, would not be 
Uable for animals kiUed on its r(md, imless guilty of gross negUgence. 
The phrase " gross negUgence," as used in these cases, means some- 
thing more than the mere omission of duty; it meant, as shown by the 
evidence in the cases, reckless and aggressive conduct on the part of 
the company's servants. " Something more than negUgence, how- 
ever gross, must be shown, to enable a party to recover for an injury, 
when he has been guilty of contributory negUgence." The Pennsyl- 
vania Co. V. Sinclair, 62 Ind. 301. There was, in the cases referred to 
in 26 Ind., something more than negligence. As in the case of The 
Indianapolis, &c. R. W. Co. v. McBrown, 46 Ind. 229, where the 
animal was driven through a deep cut, eighty rods long, into and upon 
a trestle work of the company, there was aggressive malfeasance. In 
the Massachusetts case, the Court held that a party building a dam 
across a stream must provide against imusual floods. We do not think 
these cases appUcable to the one before us. 

There could be no n^igence on the part of the appeUee, of which 
the appellant can be heard to complain, imless at the time he received 
the injury, the appeUee was under some obligation or duty to him to 
repair its freight house. " Actionable negUgence exists only where 
the one whose act causes or occasions the injury owes to the injured 
person a duty, created either by contract or by operation of law, which 



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160 BUCH V. AMORY MANUFACTURING CO. [CHAP, H. 

he has failed to discharge." Pittsburgh, &c. R. W. Co. v. Bingham, 
mpra; Burdeck v. Cheadle, 26 Ohio St. 393; Town of Salem v, GoUer, 
76 Ind. 291. We have shown that the appellee owed the appellant no 
such duty. 

The judgment below should be affirmed. 

Per Curiam. It is ordered, upon the foregoing opinion, that the 
judgment below be affirmed, at the costs of the appellant.^ 



BUCH V. AMORY MANUFACTURING CO. 

Supreme Court, New Hampshire, December, 1897. 

Reported in 69 New Hampshire ReparU, 257. 

Case. Trial by jury and verdict for the plaintiff. March 30, 1886, 
the plaintiff, then eight years of age and unable to speak or under- 
stand English, was injured by the machinery in operation in the de- 
fendants' mill. The evidence tended to diow that the plaintiff's 
brother, who was thirteen years of age, was employed as a back-Jboy 
in the mule-spinning room, and that at his request the plaintiff went 
into the room for the purpose of learning the work of a back-boy. 
The elder brother had no authority to request or permit the plaintiff 
to go into the mill or to instruct him, imless it could be inferred from 
the fact testified to by him that " he saw other boys taking their 
brothers to learn, as he imderstood from their motions." The plain- 
tiff was in the mill for a day and a half imtil the accident, openly 
assisting more or less in the work of the tack-boys. He testified that 
he was directed by a person not the overseer of the room, whom he 
saw *' bossing " the other boys, to pick up some bobbins and put some 
waste in a box. There was evidence tending to show that Fulton, the 
o\erseer, who was in charge of and hired the back-boys and other 
operatives in the room, passed in the allejrs near the plaintiff, and that 
he was well acquainted with his help. He testified that he had no 
knowledge of the plaintiff's presence in the room until about two 

1 Hardcafitle v. South Yorkshire R. Co., 4 H. & N. 67; Ponting v. Noakes, [1894] 
2 Q. B. 281 : Scoggin v. Atlantic Cement Co., 179 Ala. 213; Gordon t;. Roberts, 162 
Cal. 506; Whitney v. New York R. Co., 87 Conn. 623; Gamer v. Town, 7 Ga. 
App. 630; McDermott v. Burke, 256 111. 401; Northwestern El. Co. v. O'Malley, 
107 111. App. 599; Knapp v. Doll, 180 Ind. 526; St. Joseph I. Co. v. Bertch, 33 Ind. 
App. 491 : IJpp V, Darner. 150 la. 403; Bransom v. Labrot, 81 Ky. 638; Mallock v, 
Derby, 190 Mass. 208; Flanagan v. Sanders, 138 Mich. 253; Dahl v. Valley Dredg- 
ing (jo., 125 Minn. 90; Schnudt v. Distilling Co.h90 Mo. 284; Henry v. Disbrow 
M. Co., 144 Mo. App. 350; Butler v. Chicago R. Co., 155 Mo. App. 287; Burrill v, 
Alexander, 75 N. H. 554; Kleinberg v. Schween. 134 App. Div. 493; Riggle i;. Lens, 
71 Or. 125; Clapp v. La Grill, 103 Tenn. 164; Stamford Oil Co. v. Barnes, 103 Tex. 
409; Denison Light Co. v. Patton, 105 Tex. 621; Lunsford v. Colonial Coal Co., 
115 Va. 346; Anderson v. Northern R. Co., 19 Wash. 340; West v, Shaw, 61 Wash. 
227. 

As to setting traps for trespassers, see Bird v. Holbrook, 4 Bing. 628; Hooker 
V. Miller, 37 la. 613. Compare Marble v. Ross, 124 Mass. 44; Loomis v. Terry, 17 
Wend. 497; Sherfey v, Bartley, 4 Sneed, 58. 



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SECT. VlJ BUCH V. AMORY MANUFACTURING CO. 161 

hours before the accident, when, aware that the boy was not an em- 
ployee, he directed him to go out, and thinking he might not under- 
stand English, took him to an operative who spoke the plaintiff's 
language, whom he told to send the plaintiff out. The plaintiff tes^ 
tified that Fulton spoke to him and, as he understood, directed him 
to remove his vest, but that he did not understand he was ordered to 
leave. There was no evidence except Fulton's that the order was 
communicated to the plaintiff or understood by him. There was no 
evidence or claim that the machinery was improperly constructed or 
operated, or that it was out of repair. The plaintiff's hand was caught 
in a gearing which the back-boys were instructed to avoid, but there 
was no evidence that the plaintiff was given any instruction or warn- 
ing whatever. There was evidence tending to prove that boys under 
thirteen years of age were not employed in the room, and that the 
place and machinery were dangerous for a child of the plaintiff's age. 
Subject to exception, a motion that a verdict be directed for the 
defendants was denied. 

Carpenter, C, J. On the evidence, the jury could not properly 
find that the plaintiff was upon the premises of the defendants with 
their consent or permission. Although there was evidence tending to 
show that other back-boys had taken their brothers into the room for 
the purpose of instructing them in the business, there was no sufficient 
evidence that the fact that they did so was known to the defendants, 
and there was evidence that on the first occasion brought to their 
knowledge they objected. Upon this state of the evidence, a license 
by the defendants — whether material or immaterial — for the 
plaintiff's presence in the room could not legitimately be inferred. 
The plaintiff was a trespasser. 

The defendant's machinery was in perfect order and properly man- 
aged. They were conducting their lawful business in a lawful way 
and in the usual and ordinary manner. During the plaintiff's pres- 
ence they made no change in the operation of their works or in their 
method of doing business. No unmediate or active intervention on 
their part caused the injury. It resulted from the joint operation of 
the plaintiff's conduct and the ordinary and usual condition of the 
premises. Under these circumstances, an adult in full possession of 
his faculties, or an infant capable of exercising the measure of cane' 
necessary to protect himself fh)m the dangers of the situation, whether 
he was on the premises by permission or as a trespasser, could not 
recover. 

The plaintiff was an infant of eight years. The particular circum- 
stances of the accident — how or in what manner it happened that 
the plaintiff caught his hand in the gearing — are not. disclofted by 
the case. It does not appear that any evidence was offered tending to 
show that he was incapable of knowing the danger from putting his 
hand in contact with the gearing, or of exercising a measure of care 



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162 BUCH V. AMORT MANUFACTURING CO. [CHAP. II. 

sufficient to avoid the danger. Such an incapacity cannot be pre- 
sumed. Stcme V. Railroad, 115 N. Y. 104, 10&-111; Hayes v. Nor- 
cross, 162 Mass. 546, 548; Mulligan t;. Curtis, 100 Mass. 512, 514; 
Ck)sgrove v. Ogden, 49 N. Y. 255, 258; Kunz v. Troy, 104 N. Y. 344, 
351; Lovett v. Raihx)ad, 9 Allen, 557, 563. 

An infant is bound to use the reason he possesses and to exercise 
the degree of care and caution of which he is capable. If the plaintiff 
could br the due exercise of his intellectual and physical powers have 
avoide<ji the injury, he is no more entitled to recover than an adult 
would/be under the same circumstances. The biu^den was upon him, 
and the case might be disposed of upon the ground that he adduced 
no <3^dence tending to show that he had not sufficient reason and dis- 
cr^on to appreciate the particular risk of injury that he incurred and 
tpmvoid it. But it may be that evidence tending to show the plaintiff's 
mptpacity was adduced, and that the case is silent on the subject 
b^ause this particular question was not made by the defendants, 
j/ Assuming, then, that the plaintiff was incapable either of appreci- 
^ing the danger or of exercising the care necessary to avoid it, is he, 
upon the facts stated, entitled to recover ? He was a trespasser in a 
place dangerous to children of his age. In the conduct of their busi- 
ness and management of their machinery the defendants were with- 
out fault. The only negligence charged upon or attributed to them 
is that, inasmuch as they could not make the plaintiff understand a 
command to leave the premises and ought to have known that they 
could not, they did not forcibly eject him. 

Actionable n^ligence is the neglect of a legal duty. The defend- 
ants are not liable unless they owed to the plaintiff a legal duty which 
they n^ected to perform. With purely moral obligations the law 
does not deal. For example, the priest and Levite who passed by on 
the other side were not, it is supposed, liable at law for the continued 
suffering of the man who fell among thieves, which they might and 
morally ought to have prevented or relieved. Suppose A, standing 
close by a railroad, sees a two-year-old babe on the track and a car 
approaching. He can easily rescue the child with entire safety to 
himself, and the instincts of humanity require him to do so. If he 
does not, he may, perhaps, justly be styl^ a ruthless savage and a 
moral monster; but he is not liable in damages for the child's injiuy, 
or indictable imder the statute for its death. P. S., c. 278, s. 8. 

" In dealing, with cases which involve injuries to children, courts 
. . . have sometimes strangely confounded legal obligation with sen- 
timents that are independent of law." Indianapolis v. Emmelman, 
108 Ind. 530. " It is important to bear in mind, in actions for injuries 
to children, a very simple and fundamental fact, which in this class of 
cases is sometimes strangely lost sight of, viz., that no action arises 
without a breach of duty." 2 Thomp. Neg. 1 183, note 3. "No action 
will lie against a spiteful man, who, seeing another running into dan- 



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SECT. VlJ BUCH t;. AMORY MANUFACTURING CO. 



163 



ger, merely omits to warn him. To bring the case within the category 
of actionable negUgence some wrongful act must be shown, or a breach 
of some positive duty; otherwise, a man who s^ows strangers to roam 
over his property would be held answerable for not protecting them 
against any danger they might encoimter whilst using the license." 
Gautret v. Egerton, L. R. 2 C. P. 371, 375. 

What duties do the owners owe to a trespasser upon their premises ? 
They may eject him, using such force and such only as is necessary 
for the piupose They are bound to abstain from a py oth er or further 
intentional or negligent acts of personal violencejf*'i'4|Ruid to inflict 
upon him by means of their own active intervention no injury which 
by due care they can avoid. They are not bound to warn him against 
hidden or secret dangers arising from the condition of the premises 
(Redigan v. Railroad, 155 Mass. 44, 47, 48), or to protect him against 
any injury that may arise from his own acts or those of other persons. 
In short, if they do nothing, let him entirely alone, in no manner in- 
terfere with him, he can have no cause of action against them for any 
injury that he may receive. On the contrary, he is Uable to them for 
any damage that he by his imlawful meddling may cause them or their 
property. What greater or other legal obligation was cast on these 
defendants by the circumstance that the plaintiff was (as is assumed) 
an irresponsible infant ? 

If landowners are not boimd to warn an adult trespasser of hidden 
dangers, — dangers which he by ordinary care cannot discover and, 
therefore, cannot avoid, — on what ground can it be claimed that 
they must warn an infant of open and visible dangers which he is un- 
able to appreciate ? No legal distinction is perceived between the 
duties of the owners in one case and the other. The situation of the 
adult in front of secret dangers which by no degree of care he can dis- 
cover, and that of the infant incapable of comprehending danger, is 
in a legal aspect exactly the same. There is no apparent reason for 
holding that any greater or other duty rests upon the owners in one 
case than in the other. 

There is a wide difference — a broad gulf — both in reason and in 
law, between causing and preventing an injury; between doing by 
negligence or otherwise a wrong to one's neighbor, and preventing him 
from injuring himself; between protecting him against injury by 
another and guarding him from injury that may accrue to him from 
the condition of the premises which he has unlawfuUy invaded. The 
duty to do no wrong is a legal duty. The duty to protect against 
wrong is, generally speaking and excepting certain intimate relations 
in the nature of a trust, a moral obligation only, not recognized or 
enforced by law. Is a spectator liable if he sees an intelligent man or 
an imintelligent infant running into danger and does not warn or 
forcibly restrain him ? What difference does it make whether the 
r^anger is on another's land, or upon his own, in case the man or in- 




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164 BUCH V. AMORT MANUFACTURING CO. [CHAP. H. 

fant is not there by his express or implied invitation ? If A sees an 
eight-year-old boy beginning to climb into his garden over a wall 
stuck with spikes and does not warn him or drive him off, is he liable 
in damages if the boy meets with injury from the spikes ? Degg v. 
Railway, 1 H. & N. 773, 777. I see my neighbor's two-year-old babe 
in dangerous proximity to the machinery of his windmiU in his yard, 
and easily might, but do not, rescue him. I am not liable in damages 
to the child for his injuries, nor, if the child is killed, punishable for 
manslaughter by the conunon law or under the statute (P. S., c. 278, 
8. 8), because the child and I are strangers, and I am under no legal 
duty to protect him. Now suppose I see Uie same child trespassing 
in my own yard and meddling in like manner with the dangerous 
machinery of my own windmill. What additional obligation is cast 
upon me by reason of the child's trespass ? The mere fact that the 
child is imable to take care of himself does not impose on me the legal 
duty of protecting him in the one case more than in the other. Upon 
what principle of law can an infant by coming unlawfully upon my 
premises impose upon me the legal duty of a guardian ? None has 
been suggested, and we know of none. 

An infant, no matter of how tender years, is liable in law for his 
trespasses. lCh.Pl.86; 2 Kent, 241; Cool. Torts, 103; Poll. Torts, 
46; 2 Add. Torts, 1126, 1153; 10 Am. A Eng. Enc. Law, 668, et seq.; 
Humphrey v. Douglass, 10 Vt. 71; School District v. Bragdon, 23 
N. H. 507; Eaton v. Hill, 50 N. H. 235; Bullock v. Babcock, 3 Wend. 
391 ; Williams v. Hays, 143 N. Y. 442, 446-451 ; Conklin v. Thompson, 
29 Barb. 218; Neal v. Gillett, 23 Conn. 437; Huchting v. Engel, 17 
Wis. 237. If, then, the defendants' machinery was injured by the 
plaintiff's act in putting his hand in the gearing, he is liable to them 
for the damages in an action of trespass and to nominal damages for 
the wrongful entry. It would be no answer to such an action that the 
defendants might by force have prevented the trespass. It is impos- 
sible to hold that while the plaintiff is liable to the defendants in tres- 
pass, they are liable to him in case for neglecting to prevent the act 
which caused the injury both to him and them. Cases of enticement, 
allurement, or invitation of infants to their injury, or setting traps for 
them, and cases relating to the sufficiency of public wajrs, or to the 
exposure upon them of machinery attractive and dangerous to children 
have no application here. 

Danger from machinery in motion in the ordinary course of busi- 
ness cannot be distinguished from that arising from a well, pit, open 
scuttle, or other stationary object. The movement of the works is a 
part of the regular and normal condition of the premises. Sullivan v. 
Raiboad, 156 Mass. 378; Holbrook v. Aldrich, 168 Mass. 15; Rodgers 
V. Lees, 140 Pa. St. 475. The law no more compels the owners to shut 
down their gates and stop their business for the protection of a tres- 
passer than it requires them to maintain a railing about an open 



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SECT. VI.] KEFFE V. MILWAUKEE AND ST. PAUL RY. CO. 165 

scuttle or to fence in their machinery for the same purpose. Benson 
V. Ck)mpany, 77 Md. 535; Mergenthaler v. Kirby, 79 Md. 182. There 
was no evidence tending to show that the defendants neglected to per- 
form any legal duty to the plaintiff. McGuiness v. Butler, 159 Mass. 
233, 236, 238; Grindley v. McKechnie, 163 Mass. 494; Holbrook v. 
Aldrich, 168 Mass. 15, 17, and cases cited. 

Verdict set aside: judgment for the d^endants.^ 
Pabsons, J., did not sit: the others concurred. 



KEFFE V. MILWAUKEE AND ST. PAUL RAILWAY CO. 

Supreme Court, Minnesota, January 11, 1875. 

Reported in 21 Minnesota ReportSf 207. 

The plaintiff, an infant, brought this action in the Court of Com- 
mon Pleas for Ramsey County to recover damages for injiuies sus- 
tained while playing upon a turn-table of defendant. The circum- 
stances under which plaintiff was injured are thus stated in the 
complaint: " That in connection with said railroad " [of defendant] 
" defendant, before and up to the month of October, 1867, used and 
operated a certain turn-table, located on the lands of said defendant 
in said town of Northfield, which said turn-table was so constructed 
and arranged as to be easily turned around and made to revolve in a 
horizontal direction." 

After minutely describing the turn-table, the complaint proceeds: 
" That said tiun-table was situated in a public place, near to a pas- 
senger depot of the defendant, and within 120 feet from the residence 
and home of plaintiff. That said turn-table was unfastened and in no 
way protected, fenced, guarded, or enclosed, to prevent it from being 
turned aroimd at the pleasure of small children, although the same 
could at all times be readily locked and securely fastened. 

" That said turn-table . . . was in the possession and under the 
control of defendant, and not necessary in operating said railroad and 
it was the duty of said defendant to keep said turn-table fastened or 
in some way protected, so that children could not readily have access 
thereto and revolve the same. That the same was not so protected or 
fastened, and that said turn-table, when left unfastened, was very 
attractive to yoimg children, and that while the same was being 

1 Latham v. Johnson, [1913] 1 K. B. 398; Cleveland R. Co. v. Ballentine, 84 
Fed. 935; Riedel v. West Jersey Co., 177 Fed. 374; Pastorello v. Stone, 89 Conn. 
286; Norman i;. Bartholomew, 104 El. App. 667: Nelson v. Bumham Co., 114 Me. 
213; Peninsular Trust Co. v. City, 131 Mich. 571: Houck v. Chicago R. Co.. 116 
Mo. App. 559; Hughes v, Boston R. Co., 71 N. H. 279; Leithold v. Philadelphia 
R. Co., 47 Pa. Super. Ct. 137; Dobbms v, Missouri R. Co., 91 Tex. 60; Bottum v. 
Hawks, 84 Vt. 370; Curtis v. Stone Quarries, 37 Wash. 355; Uthermohler v. Mining 
Co., 50 W. Va. 457; Ritz v. City, 45 W. Va. 262 Accord. Compare Walsh v. Pitts- 
burg R. Co., 221 Pa. St. 463; Lyttle v. Harlem Coal Co., 167 Ky. 345. 



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166 KEFFE V. MILWAUKEE AND 8T. PAUL RY. CO. [CHAP. II. 

moved by children, and at all times when left imfastened, it was 
dangerous to persons upon or near it. 

" That defendant had notice of all the aforesaid facts before and at 
the time the injury herein named occurred to the plaintiff. 

" That plaintiff, on September 11, 1867, was a child of tender years, 
without judgment or discretion, he being at that date seven years old, 
and that in consequence of the carelessness, negUgence, and improper 
conduct of said defendant, in not locking, enclosing, or otherwise 
fastening said turn-table, and by the negligence, carelessness, and im- 
proper conduct of said defendant, its agents, and servants, in allowing 
said turn-table to be and remain unfastened, insecure, and improperly 
put in motion, it was, at the date last aforesaid, revolved by other 
children, over whom the parents and guardians of plaintiff had no 
control, and without their knowledge, and, while being so revolved, the 
plaintiff, being on said turn-table, had his right leg caught near the 
knee, between the surface of said turn-table and said abutment or wall, 
and between the iron rail on said turn-table and the iron rail on said 
abutment or wall, and said leg was thereby so bruised, broken, man- 
gled, and fractured, as to render amputation necessary." 

The complaint further alleges that the injury was caused by defend- 
ant's negligence, and without any fault or negligence on the part of 
the plaintiff, or his parents or guardians, etc. 

Tlie defendant having answered the complaint, and the action 
having been called for trial, the defendant moved for judgment on 
the pleadings. The motion was granted by Hall, J., and judgment 
entered accordingly, from which plaintiff appealed. 

Bigelaw, Fhmdrau & Clark j for respondent, relied on the opinion of 
Hall, J., and the cases therein cited.^ 

Young, J. In the elaborate opinion of the Court below, which 
formed the basis of the argument for the defendant in this Court, the 
case is treated as if the plaintiff was a mere trespasser, whose tender 
years and childish instincts were no excuse for the commission of the 
trespass, and who had no more right than any other trespasser to re- 
quire the defendant to exercise care to protect him from receiving in- 
jury while upon its turn-table. But we are of opinion that, upon the 
facts stated in the complaint, the plaintiff occupied a very different 
position from that of a mere volimtary trespasser upon the defendant's 
prooerty, and it is therefore unnecessary to consider whether the 
proposition advanced by the defendant's counsel, viz., that a land- 
owner owes no duty of care to trespassers, is not too broad a statement 
of a rule which is true in many instances. 

To treat the plaintiff as a voluntary trespasser is to ignore the aver- 
ments of the complaint, that the turn-table, which was situate in a 
public (by which we understand an open, frequented) place, was, 

1 This opinion, too long to be inserted here, will be found in 2 Cent. Law Jour- 
nal, 170. 



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SECT. VI.] KEFFE V. BOLWAUKEB AND ST. PAUL BY. CO. 167 

when left unfastened, very attractive, and, when put in motion by 
them, was dangerous to young children, by whom it could be easily 
put in motion, and many of whom were in the habit of going upon it 
to play. The turn-table, being thus attractive, presented to the nat- 
ural instincts of young children a strong temptation; and such chil- 
dren, following, as they must be expected to follow, those natimJ 
instincts, were thus allured into a danger whose nature and extent 
they, being without judgment or discretion, could neither apprehend 
nor appreciate, and against which they could not protect themselves. 
The difference between the plaintiff's position and that of a voluntary 
trespasser, capable of using care, consists in this, that the plaintiff was 
induced to come upon the defendant's turn-table by the defendant's 
own conduct, and that, as to him, the turn-table was a hidden danger, 
— a trap. 

While it is held that a mere licensee " must take the permission with 
its concomitant conditions, — it may be perils," Hounsell v. Smyth, 
7 C. B. (n. s.) 731; Bolch v. Smith, 7 H. & N. 836, yet even such 
licensee has a right to require that the owner of the land shall not 
knowingly and carelessly put concealed dangers in his way. Bolch v. 
&nith, per Channell and Wilde, BB.; Corby v. Hill, 4 C. B. (n. s.) 
556, per Willcs, J. 

And where one goes upon the land of another, not by mere license, 
but by invitation from the owner, the latter owes him a larger duty. 
" The general rule or principle applicable to this class of cases is that 
an owner or occupant ia bound to keep his premises in a safe and suit- 
able condition for those who come upon and pass over them, using due 
care, if he has held out any inducement, invitation, or allurement, 
either express or implied, by which they have been led to enter 
thereon." Per Bigelow, C. J., in Sweeny v. Old Colony & Newport 
R. Co., 10 Allen, 368, reviewing many cases. And see Indermaiur v. 
Dames, L. R. 1 C. P. 274; L. R. 2 C. P. 311. 

Now, what an express invitation would be to an adult, the tempta- 
tion of an attractive plaything is to a child of tender years. If the 
defendant had left this turn-table imfastened for the purpose of at- 
tracting young children to play upon it, knowing the danger into 
which it was thus alluring them, it certainly would be no defence to 
an action by the plaintiff, who had been attracted upon the turn-table 
and injured, to say that the plaintiff was a trespasser, and that his 
childish instincts were no excuse for his trespass. In Townsend v. 
Wathen, 9 East, 277, it was held to be unlawful for a man to tempt 
even his neighbor's dogs into danger, by setting traps on his own 
land, baited with strong-scented meat, by which the dogs were allured 
to come upon his land and into his traps. In that case. Lord Ellen- 
borough asks, " What is the difference between drawing the animal 
into the trap by his natiu^l instinct, which he cannot resist, and 
putting him there by manual force ? " And Grose, J., says, " A man 



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168 KBFFB V. MILWAUKEiE AND ST. PAUL RY. CO. [CHAP. H. 

must not set traps of this dangerous description in a situation to in- 
vite his neighbor's dogs, and, as it were, to compel them by their 
instinct to come into the traps." 

It is true that the defendant did not leave the turn-table unfastened 
for the purpose of injuring young children; and if the defendant had 
no reason to believe that the unfastened turn-table was likely to at- 
tract and to injure yoimg children, then the defendant woukl not be 
bound to use care to protect from injury the children that it had no 
good reason to suppose were in any danger. But the complaint states 
that the defendant knew that the tiun-table, when left unfastened, 
was easily revolved; that, when left imfastened, it was very attrac- 
tive, and when put in motion by them, dangerous, to young children; 
and knew also that many children were in the habit of going upon it to 
play. The defendant therefore knew that by leaving this turn-table 
imfastened and imguarded, it was not merely inviting young children 
to come upon the turn-table, but was holding out an allurement, 
which, acting upon the natural instincts by which such children are 
controlled, drew them by those instincts into a hidden danger; and 
having thus knowingly allured them into a place of danger, without 
their fault (for it cannot blame them for not resisting the temptation 
it has set before them), it was bound to use care to protect them from 
the danger into which they were thus led, and from which they could 
not be expected to protect themselves. 

We agree with the defendant's counsel that a railroad company is 
not required to make its land a safe playground for children. It has 
the same right to maintain and use its turn-table that any landowner 
has to use his property. It is not an insurer of the lives or limbs of 
young children who play upon its premises. We merely decide that 
when it sets before young children a temptation which it has reason to 
believe will lead them into danger, it must use ordinary care to protect 
them from harm. What would be proper care in any case must, in 
general, be a question for the jury, upon all the circumstances of the 
case. 

The position we have taken is fully sustained by the following cases, 
some of which go much farther in imposing upon the owner of dan- 
gerous articles the duty of using care to protect from injiuy children 
who may be tempted to play near or meddle with them, than it is 
necessary to go in this case. Lynch v. Nurdin, 1 Q. B. 29; Birge v. 
Gardiner, 19 Conn. 507; Whirley v. Whiteman, 1 Head, 610. 

It is true that, in the cases cited, the principal question discussed 
is not whether the defendant owed the plaintiff the duty of care, but 
whether the defendant was absolved from liability for breach of duty 
by reason of the fact that the plaintiff was a trespasser, who, by his 
own act, contributed to the injury; and the distinction is not sharply 
drawn between the effect of the plaintiff's trespass, as a bar to his 
right to require care, and the plaintiff's contributory negligence, as a 



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SECT. VI.] KEFFE V. MILWAUEIEE AND ST. PAUL RY. CO. 169 

bar to his right to recover for the defendant's failure to exercise such 
care as it was his duty to use. But as a young child, whom the defend- 
ant knowingly tempts to come upon his land, if anything more than 
a technical trespasser, is led into the conunission of the trespass by the 
defendant himself, and thus occupies a position widely different from 
that of an ordinary trespasser, the fact that the Courts, in the cases re- 
ferred to, assumed, instead of proving, that the defendant owed to a 
yoimg child, under such circumstances, a duty he would not owe to an 
ordinary trespasser, for whose trespass he was not in any way respon- 
sible, does not weaken the authority of those cases. And in Railroad^ 
Co. v. Stout, 17 Wall. 657 (a <}ase in all respects similar to the pres- 
ent), the distinction insisted on by counsel is taken by Mr. Justice 
Hunt, and the circumstance that the plaintiff was in some sense a 
trespasser is held not to exempt the defendant from the duty of care. 
In the charge of the learned circuit judge at the trial of the last named 
case (reported imder the title of Stout v. Sioux City & Pacific R. Co., 
2 Dillon, 294), the elements which must concur to render the defend- 
ant liable, in a case like the present, are clearly stated. 

In Hu^es v. Macfie, 2 Hiu-lst. & Coltm. 744, and Mangan v. Atter- 
ton, L. R. 1 Exch. 239, cited by defendant's counsel, there was nothing 
to rfiow that the defendants knew or had reason to apprehend that the 
cellar lid in the one case, or the crushing machine in the other, would 
be likely to attract young children into danger. It must be conceded 
that Hughes v. Macfie is not easily to be reconciled with Birge v. Gar- 
diner, and that Mangan v. Atterton seems to conflict with Lynch v. 
Nurdin; but whether correctly decided or otherwise, they do not 
necessarily conflict with our decision in this case. 

Much reliance is placed by defendant on Phila. & Reading R. Co. 
V. Hmnmell, 44 Penii. St. 375 and Gillis v. Penn. R. Co., 59 Penn. 
St. 129. In the first of these cases, the plaintiff, a young child, was 
injured by coming upon the track while the cars were in motion. The 
only neghgence charged upon the defendant was the omission to give 
any signal at or after the starting of the train. If the plaintiff had 
been crossing the track, through one of the openings which the com- 
pany had suffered the people in the neighborhood to make in the train 
while standing on the track, and the cars had then been run together 
upon him, without any warning, the case would more nearly resemble 
the present; but the facts, as they appear, show that the company used 
abundant care, and that it had no reason to suppose that the plaintiff 
was exposed to danger; and the decision is put upon the latter ground, 
although Strong, J., delivering the opinion of the Court, uses language 
which lends some support to the defendant's contention in this case. 
GiUis V. Penn. R. Co. was properly decided, on the ground that the 
company did nothing to invite the plaintiff upon the platform, by the 
fall of which he was injured, and that the platform was strong enough 
to bear the weight of any crowd of people which the company might 



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170 FROST V. EASTERN RAILROAD [CHAP. U. 

reasonably expect would come upon it. Neither of these cases is an 
authority against, while a later case in the same court, Kay v. Penn. 
R. Co., 65 Penn. St. 269, tends strongly to support, the plaintiff's 
right of action in this case; and the recent case of Pittsburg, A. & M. 
Passenger R. Co. v. Caldwell, 74 Penn. St. 421, points in the same 
direction. 

It was not urged upon the argument that the plaintiff was guilty of 
contributory negligence, and we have assumed that the plaintiff exer- 
cised, as he was boimd to do, such reasonable care as a child of his 
age and imderstanding was capable of using, and that there was no 
n^Iigence on the part of his parents or guardians, contributing to his 
injury. Jiuigment reversed.^ 



FROST V. EASTERN RAILROAD 

Supreme Court, New Hampshire, December, 1886. 

Reported in 64 New Hampehire Reports, 220. 

Case, for personal injuries from the alleged negligence of the de- 
fendants in not properly guarding and securing a turn-table. The 
plaintiff, who sues by his father and next friend, was seven years old 
when the accident occurred, June 23, 1877, and the action was com- 
menced June 7, 1884. Plea, the general issue and statute of limita- 
tions. A motion for a nonsuit was denied, and the defendants 
excepted. Verdict for the plaintiff. The facts are suflSciently stated 
in the opinion. 

Clark, J. The action is not barred by the statute of limitations. 
" Any infant, married woman, or insane person may bring any per- 
sonal actions within two years after such disability is removed." 
G. L., c. 221, s. 7. 

As a general rule, in cases where a disability exists when the right 
of action accrues, the statute does not run during the continuance of 
the disability, and it has not commenced to run against the plaintiff. 

» Railroad Co. v. Stout, 17 Wall. 657; Union R. Co. v. McDonald, 152 U. S. 262 
(slackpit) ; St. Louis R. Co. v. Underwood, (C. C. A.) 194 Fed. 363 (pile of lumber) ; 
Southern R. Co. v. Bunt, 131 Ala. 591 ; Thompson v. Alexander Cotton Mills Co., 
190 Ala. 184 (drain containing hot water); Barrett v. Southern P. R. Co., 91 Cal. 
296 (but see Peters v. Bowman, 115 Cal. 345 — pond; George v. Los Angeles R. 
Co., 126 Cal. 357 — cars standing imattended); Ferguson v, Columbus R. Co., 75 
Ga. 637, 77 Ga. 102 (but see Savannah R. Co. v. Beavers, 113 Ga. 398 — excava- 
tion)- City V. McMahon, 154 111. 141; Donk Bros. v. Leavitt, 109 111. App. 385; 
Belt R. Co. V. Charters, 123 III. App. 322 (but see American Advertising Co. v. 
Flannigan, 100 111. App. 452); Chicago R. Co. v. Fox, 38 Ind. App. 268; Lewis v. 
Cleveland R. Co., 42 Ind. App. 337; Edgington v. Burlington R. Co., 116 la. 410 
(but see Anderson v. Ft. Dodge R. Co., 150 la. 465); Price v. Atchison Water Co., 
58 Kan. 551 (reservoir): Kansas City R. Co. v. Matson, 68 Kan. 815 (wood pile); 
Osbom V. Atchison R. Co., 86 Kan. 440 (abandoned round house — but see Somer- 
field V. Land and Power Co., 93 Kan. 762 — unguarded canal); Bransom v. 
Labrot, 81 Ky. 638 (pile of timber); Palermo v. Orleans Ice Co., 130 La. 833 
(gutter containing hot water); Koons v. St. Louis R. Co., 65 Mo. 592; Schmidt v. 



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SECT. VI.] FROST V. EASTERN RAILROAD 171 

Pierce v. Dustin, 24 N. H. 417; Little v. Downing, 37 N. H. 366. It 
is said that the plaintiff's next friend was under no disability, that he 
could have brought the action at any time within six years after the 
right of action accrued, and therefore the statute should apply to this 
case. It is an answer to this suggestion that it is the infant's action, 
and the failure of the next friend to bring suit within six years is no 
bar to the plaintiff's right of action. Wood Lim. of Act. 476. 

The motion for a nonsuit raises the question whether there was evi- 
dence upon which the jiuy could properly find a verdict for the plain- 
tiff. Paine v. Railway, 58 N. H. 611. The ground of the action is, 
that the defendants were guilty of negligence in maintaining a turn- 
table insecurely guarded, which, being wrongfully set in motion by 
older boys, caused an injiuy to the plaintiff, who was at that time 
seven years old, and was attracted to the turn-table by the noise of 
the older and larger boys turning and playing upon it. The turn-table 
was situated on the defendants' land, about sixty feet from the pubhc 
street, in a cut with high, steep embankments on each side; and the 
land on each side was private property and fenced. It was fastened 
by a toggle, which prevented its being set in motion imless the toggle 
was drawn by a lever, to which was attached a switch padlock, which 
being locked prevented the lever from being used imless the staple was 
drawn. At tiie time of the accident the turn-table was fastened by 
the toggle, but it was a controverted point whether the padlock was 
then locked. When secured by the toggle and not locked with the 
padlock, the turn-table could not be set in motion by boys of the age 
and strength of the plaintiff. 

Upon these facts we think the action cannot be maintained. The 
aUeged negligence complained of relates to the construction and con- 
dition of the turn-table, and it is not claimed that the defendants were 
guilty of any active misconduct towards the plaintiff. The right of a 
landowner in the use of his own land is not limited or qualified like 

Kansas City Distilling Co., 90 Mo. 284 (hole made by escaping steam); Berry v, 
St. Louis R. Co., 214 Mo. 593 (but see Overholt v, Vieths, 93 Mo. 422 — aban- 
doned quarry; Barney v, Hannibal R. Co., 126 Mo. 372 — unfenced freight yard; 
Kelly V. Benas, 217 Mo. 1 — pile of lumber); Chicago R. Co. v. Krayenbuhl, 65 
Neb. 889; Evansich v. Gulf R. Co., 67 Tex. 126 (but see Missouri R. Co. v. 
Edwards, 90 Tex. 65; Johnson v. Atlas Supply Co., (Tex. Civ. App.) 183 S. W. 31, 
33); Smallev v. Rio Grande R. Co., 34 Utah, 423 (but see Palmer v. Oregon S. L. 
Co., 34 Utah, 466); Haynes v. City, 69 Wash. 419 (but see Bamhart v. Chicago 
R. Co.. 89 Wash. 304); Kell^ v. Southern R. Co., 152 Wis. 328 (but see Emond 
V. Kimberly-Clark Co., 159 Wis. 83 — pond) Accord. 

Compare McCabe v. American Woolen Co., (C. C. A.) 132 Fed. 1006 (un- 
euarded canal); VaUey Planing Mill v. McDaniel, 119 Ark. 139; Brinkley v. 
Cooper, 70 Ark. 331; Prickett v, Pardridge, 189 111. App. 307; Stendal v, Boyd, 
73 Minn. 53; Dahl v. VaUey Dredging Co., 125 Minn. 90; Cooper u, Overton, 
102Tenn. 211. ^ ^^ , , *- 

See also Smith, Landowner's Liability to Children, 11 Harv. Law Rev. 349, 
434; 7 Thompson, Negligence, § 1031; Burdick. Torts (3d. ed.), §§ 558-569. 

As to the age to which the doctrine is applicable, see Belt R. Co. v. Charters, 123 
111. App. 322; State Bank v. Mandel, 176 fll. App. 278; Wilmes v. Chicago R. Co.. 
175 la. 101; Shaw v, Chicago R. Co., (Mo.) 184 S. W. 1151. 



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II 



172 FROST V. EASTERN RAILROAD [CHAP. 11. 

the enjoyment of a right or privilege in which others have an interest, 
as the use of a street for highway purposes under the general law, or 
for other purposes under special license (Moynihan v, Whidden, 143 
Mass. 287), where care must be taken not to infringe upon the lawful 
rights of others. At the time of his injury the plaintiff was using the 
defendants' premises as a playground without right. The turn-table 
was required in operating the defendants' railroad. It was located on 
its own land so far removed from the highway as not to interfere with 
the convenience and safety of the pubUc travel, and it was not a trap 
set for the pmpose of injuring trespassers. Aldrich v. Wright, 53 
N. H. 404. Under these circumstances, the defendants owed no duty 
to the plaintiff; and there can be no negligence or breach of duty 
where there is no act or service which the party is bound to perform 
or fulfil. A landowner is not required to take active measures to in- 
sure the safety of intruders, nor is he liable for an injury resulting 
from the lawful use of his premises to one entering upon them without 
right. A trespasser ordinarily assumes all risk of danger from the 
condition of the premises; and to recover for an injiuy happening to 
him he must show that it was wantonly inflicted, or that the owner 
or occupant, being present and acting, might have prevented the in- 
jiuy by the exercise of reasonable care after discovering the danger. 
Clark V, Manchester, 62 N. H. 577; State v. Raikoad, 52 N. H. 528; 
Sweeny v. Raikoad, 10 Allen, 368; Morrissey v. Railroad, 126 Mass. 
377; Severy v. Nickerson, 120 Mass. 306; Morgan v. Hallowell, 57 
Me. 375; Pierce v. Whitcomb, 48 Vt. 127; McAlpin v. Powell, 70 
N. Y. 126; St. L., V. & T. H. R. R. Co. v. Bell, 81 111. 76; Gavin 
y. Chicago, 97 111. 66; Wood v. School District, 44 Iowa, 27; Gram- 
Uch V. Wurst, 86 Pa. St. 74; Cauley v. P. C, & St. Louis Railway 
Co., 95 Pa. St. 398; Gillespie v. McGowan, 100 Pa. St. 144; Man- 
gan V. Atterton, L. R. 1 Ex. 239. The maxim that a man must use 
his property so as not to inconunode his neighbor, only applies to 
neighbors who do not interfere with it or enter upon it. Knight v. 
Abert, 6 Pa. St. 472. To hold the owner liable for consequential 
damages happening to trespassers from the lawful and beneficial use 
of his own land would be an unreasonable restriction of his enjoy- 
ment of it. 

We are not prepared to adopt the doctrine of Railroad Co. v. Stout, 
17 Wall. 657, and cases following it, that the owner of machinery or 
other property attractive to children is liable for injuries happening to 
children wrongfully interfering with it on his own premises. The 
owner is not an insurer of the safety of infant trespassers. One hav- 
ing in his possession agricultural or mechanical tools is not responsible 
for injuries caused to trespassers by careless handling, nor is the 
owner of a fruit-tree bound to cut it down or enclose it, or to exercise 
care in securing the staple and lock with which his ladder is fastened, 
for the protection of trespassing boys who may be attracted by the 



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SECT. VI.] COOKE V. MIDLAND GREAT WESTERN RY. 173 

fruit. Neither is the owner or occupant of premises upon which there 
is a natural or artificial pond, or a blueberry pasture, legally required 
to exercise care in securing his gates and bars to guard against acci- 
dents to straying and trespassing children. The owner is under no 
duty to a mere trespasser to keep his premises safe; and the fact that 
the trespasser is an infant cannot have the effect to raise a duty where 
none otherwise exists. " The supposed duty has regard to the public 
at large, and cannot well exist as to one portion of the public and not 
to another, imder the same circumstances. In this respect children, 
women, and men are upon the same footing. In cases where certain 
duties exist, infants may require greater care than adults, or a differ- 
ent kind of care; but precautionary measures having for their object 
the protection of the pubUc must as a rule have reference to ^classes 
..^ike." Nolan v. N. Y. N. H. & H. Raihoad Co., 53 Conn. 461. 

There being no evidence to charge the defendants with negUgence, 
the motion for a nonsuit should have been granted. 

Exceptions stistained.^ 



COOKE V. MIDLAND GREAT WESTERN RAILWAY 
OF IRELAND 

In the House of Lobds, Mabch 1, 1909. 
Reported in [1909] Appeal Caeee, 229. 

The appellant by his father brought an action against the respond- 
ents for an injury sustained on the company's land in Meath under 
the circumstances stated in the headnote, the details of which are 
fully discussed in the judgments in this House. At the trial before 
Lord O'Brien, C. J., the jiuy found a verdict for the plaintiff for £550, 
and judgment was entered accordingly. The jury found that the 
fence was in a defective condition through the negligence of the de- 
fendants; that the plaintiff was allured through the hedge and up to 
the turn-table by the iiegligence of the defendants; and that it was 
by reason of the defendants' negligence and as the effective cause of 
it that the misfortune occurred. That judgment was aflSrmed by the 
King's Bench Division in Ireland (PsJles, C. B., and Johnson, J., 
Kenny, J., dissenting) and was afterwards set aside by the Court of 
Appeal in Ireland (Sir S. Walker, L. C, FitzGibbon and Holmes, 
L.JJ.). Hence this appeal by the plaintiff.' 

1 Wilmot V. McPadden, 79 Conn. 367 (building in course of construction); 
Daniels v. New York R. Co., 164 Mass. 349; Ryan v, Towar, 128 Mich. 463 
(water wheel); Peninsular Trust Co. v. City. 131 Mich. 571 (reservoir); Busies v. 
Boston R. Co., 71 N. H. 279 (torpedo on rignt of way) : Delaware R. Co. v. Reich, 
61 N. J. Law, 635: Walsh w. Fitchbura; R. Co., 145 N. Y. 301; Raikoad Co. t;. 
Harvey, 77 Ohio St. 235; Paolino v. McKendall, 24 R. I. 432 (unguarded fire); 
Uthennohlen v. Bogg^s Run Co., 50 W. Va. 457 Accord, 

* The arguments of counsel and the concurring opinions of Lords Atkinson, 
Collins, and Lorebum are omitted. 



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174 COOKE V. MIDLAND GREAT WESTERN RY. [CHAP. H. 

Lord Macnaghten. My Lords, the only question before your 
Lordships is this: Was there evidence of negligence on the part of the 
company fit to be submitted to the jury ? If there was, the verdict 
must stand, although your Lordships might have come to a different 
conclusion on the same materials. 

I cannot help thinking that the issue has been somewhat obscured 
by the extravagant importance attached to the gap in the hedge, both 
in the arguments of counsel and in the judgments of some of the 
learned judges who have had the case under consideration. That 
there was a gap there, that it was a good broad gap some three feet 
wide, is, I think, proved beyond question. But of all the circum- 
stances attending the case it seems to me that this gap taken by itself 
is the least important. I have some difficulty in believing that a 
gap in a roadside fence is a strange and imusual spectacle in any part 
of beland. But however that may be, I quite agree that the in- 
sufficiency of the fence, though the company were bound by Act of 
Parliament to maintain it, cannot be regarded as the effective cause 
of the accident. 

The question for the consideration of the jiuy may, I think, be 
stated thus: Would not a private individual of conunon sense and 
ordinary intelligence, placed in the position in which the company 
were placed, and possessing the knowledge which must be attributed 
to them, have seen that there was a likelihood of some injury happen- 
ing to children resorting to the place and playing with the tiun-table, 
and would he not have thought it his plain duty either to put a stop 
to the practice altogether, or at least to take ordinary precautions to 
prevent such an accident as that which occurred ? 

This, I think, was substantially the question which the Lord Chief 
Justice presented to the jury. It seems to me to be in accordance 
with the view of the Court of Queen's Bench in Ljmch v. Nurdin, 
1 Q. B. 29, and the opinion expressed by Homer and Stirling, L.JJ., 
in McDowaU v. Great Western Ry. Co., [1903] 2 K. B. 331. 

The Lord Chancellor of Ireland puts Lynch v, Nurdin, 1 Q. B. 29, 
aside. He holds that it bears no analogy to the present case, because 
the thing that did the mischief there was a '' cart in the public street 
— a nuisance.*' But no question of nuisance was considered in 
Lynch v. Nurdin. That point was not suggested. The ground of 
the decision is a very simple proposition. " If," says Lord Denman, 
^' I am guilty of ne^gence in leaving anything dangerous in a place 
where I know it to be extremely probable that some other person will 
imjustifiably set it in motion to the injury of a third, and if that 
injiuy should be so brought about, I presume that the sufferer might 
have redress by action against both or either of the two, but unques- 
tionably against the first." If that proposition be sound, surely the 
character of the place, though, of course, an element proper to be 
considered, is not a matter of vital importance. It cannot make very 



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SECT. VI.] COOKE V. MIDLAND GREAT WESTERN RY. 175 

much (Merence whether the place is dedicated to the use of the pub- 
lic or left open by a careless owner to the invasion of children who 
make it their playground. 

I think the jiuy were entitled and boimd to take into consideration 
all the circumstances of the case — the mode in which the turn-table 
was constructed; its close proximity to the wall by which the plain- 
tiff's leg was crushed; the way in which it was left, unfenced, un- 
locked, and unfastened; the history of this bit of ground and its 
position, shut off as it was by an embankment from the view of the 
company's servants at the station, and Ijring half derelict. After the 
construction of the embankment it served no purpose in connection 
with the company's undertaking, except that at one time a comer of it 
was used as a receptacle for some timber belonging to the company, 
and afterwards as a site for this turn-table. In other respects, and 
apart from these uses, it seems to have been devoted or abandoned to 
the sustenance of the railway inspector's goat and the diversion of the 
youth of Navan. It is proved that in spite of a notice board idly for- 
bidding trespass it was a place of habitual resort for children, and 
that children were frequently playing with the timber, and after- 
wards with the turn-table. At the date of the trial, twelve months 
after the accident, a beaten path leading from the gap bore witness 
both to the numbers that flocked to the spot and to the special attrac- 
tion that drew children to it. It is remarkable that not a single word 
of cross-examination as to either of these points was addressed to the 
principal witnesses for the plaintiff, Tully, the herd, and Gertrude 
CJooke, the plaintiff's sister; nor was any explanation or evidence 
offered on the part of the company. Now the company knew, or 
must be deemed to have known, all the circumstances of the case 
and what was going on. Yet no precaution was taken to prevent an 
accident of a sort that might well have been foreseen and very easily 
prevented. They did not close up the gap until after the accident. 
Then it was the first thing thought of. But it was too late. They 
did not summon any of the children who played there, or bring them 
before the magistrates, as a warning to trespassers and a proof that 
they were really in earnest in desiring to stop an objectionable prac- 
tice which had gone on so long and so openly. They did not have 
their turn-table locked automatically in the way in which Mr. Barnes, 
C. E., whose evidence is uncontradicted, says it is usual to lock such 
machines. The table, it seems, was not even fastened. There was a 
bolt; but if Cooke, the father of the plaintiff, is to be beUeved, the 
bolt was rusty and unworkable. The jury were not bound to believe 
Fowler, a ganger in the service of the company, in preference to 
C!ooke. Fowler, aft^r some incautious admissions which the jury 
probably accepted as true, turned round and showed himself, as the 
Chief Justice sajrs, to be hostile to the plaintiff. He prevaricated to 
such an extent that the jury were justified in disregarding every- 



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176 COOKE V. MIDLAND GREAT WESTERN RY. [CHAP. U. 

thing said by him with the view of shielding his employers or saving 
himself from blame, whether it came out of his own head, as the 
nonsense he talked about rat-holes, or was suggested by counsel, as 
the expression of " hunting " children ofif the ground. 

It seems to me that the Chief Justice would have been wrong if he 
had withdrawn the case from the jury. I think the jury were en- 
titled, in view of all the circumstances, on the evidence before them, 
uncontradicted as it was, to find that the company were guilty of 
negligence. I am therefore of opinion that the finding of the jury 
should be upheld and the judgment under appeal reversed, with 
pauper costs here and costs below; and I move yoiur Lordships 
accordingly. 

I will only add that I do not think that this verdict will be followed 
by the disastrous consequences to railway companies and landowners 
which the Lord Chancellor of L^land seems to apprehend. Persons 
may not think it worth their while to take ordinary care of their own 
property, and may not be compellable to do so; but it does not seem 
unreasonable to hold that, if they allow their property to be open to 
all comers, infants as well as children of maturer age, and place upon 
it a machine attractive to children and dangerous as a plaything, they 
may be responsible in damages to those who resort to it with their 
tacit permission, and who are unable, in consequence of their tender 
age, to take care of themselves.' 

^ See Latham v. Johnson, [1913] 1 K. 6. 398. In that case Hamilton, L. J., said 
(pp. 415-416) : " Two other terms must be alluded to — a * trap ' and ' attrac- 
tion ' or ' allurement.' A trap is a figure of speech, not a formula. It involves the 
idea of concealment and surprise, of an appearance of safety imder circumstances 
cloaking a reality of danger. Owners and occupiers alike expose licensees and 
visitors to traps on their premises at their peril, but a trap ia a relative term. In 
the case of an infant, there are moral as well as physical traps. There may ac- 
cordingly be a duty towards infants not merely not to dig pitfalls for them, but 
not to lead them into temptation. ' AUurements/ too, is a vague word. It may 
refer only to thei circumstances under which the injured child has entered the close. 
Here it is hard to. see how infantile temptations can give ri^ts, however much 
they may excuse peccadilloes. A child will be a trespasser still, if he goes on pri- 
vate ground without leave or right, however natural it may have been for him to 
do so. On the other hand, the allurement may arise after he has entered with 
leave or as of ri^^t. Then the presence in a frequented place of some object of 
attraction, tempting him to meddle where he ought to abstain, may well constitute 
a trap, and in the case of a child too young to be capable of contributory negligence 
it may impose full liability on the owner or occupier, if he ought, as a reasonable 
man, to have anticipated the presence of the cnild and the attractiveness and 
peril of the object." 

" Finally, what objects which attract infants to their hurt are traps even to 
them ? Not all objects with which children hurt themselves simpliciter. A child 
can get into mischief and hurt itself with anything if it is young enough. In some 
cases the answer may rest with the jury, but it must be matter of law to say 
whether a given object can be a trap m the double sense of being fascinating and 
fatal. No strict answer has been, or perhaps ever will be, dven to the question, 
but I am convinced that a heap of pavmg stone in broad daylight in a private close 
cannot so combine the properties of temptation and retribution as to be properly 
called a trap." 



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SECT. VI.] BOLCH V. SMITH 177 

BOLCH V. SMITH 

In the Exchequer, January 30, 1862. 

Reported in 7 HurlsUme & Normarif 736. 

Action to recover for damage occurring as hereinafter stated. 
Pleas: first, not guilty; second, various special pleas. Issues thereon.^ 

At the trial, before Channell, B., at the last Hampshire Summer 
Assizes, the following facts appeared: The plaintiff was a millwright 
employed in the Government dock-yard at Portsmouth. The defend- 
ant was a contractor, and had been engaged for some time in enlarging 
one of the docks. The men employed in the dock-yard were not al- 
lowed to leave it during the day, and water-closets had been built for 
their use. For the piuTX)se of going to these water-closets, they had 
permission to use certain paths which crossed the dock-yard. The de- 
fendant had been permitted to erect a mortar-mill for the purpose of 
his work, and he built an engine-house on one side of one of these 
paths and the mortar-mill on the other side of the path. A revolving 
shaft which connected the engine with the mill was placed across the 
path about six inches above the level of the ground. This shaft was 
partly covered with a few planks not joined together, and forming 
an incline upwards from the ground, so that a barrow could be wheeled 
over it. The shaft had been on that spot covered or uncovered for 
five years. The plaintiff had gone along this path to one of the water- 
closets, and whilst returning he accidentally stumbled when near the 
shaft, which was in rapid motion, and on reaching out his hand to 
save himself his left arm was caught by the shaft, and so much lacer- 
ated that it was necessary to amputate it. There were two other paths 
by which the plaintiff might have reached the water-closet; but the 
one he used was the shortest and most convenient. 

In the course of the defendant's case it appeared that the shaft had 
been fenced to some extent but not suflSciently. 

At the close of the defendant's case, the learned judge proposed to 
leave it to the jury to assess the damages, supposing the plaintiff had 
a right of action, and then to nonsuit the plaintiff, reserving leave for 
him to move to set aside the nonsuit, and enter the verdict for the 
amoimt assessed by the jiuy. The plaintiff's counsel declined to ac- 
cede to this course; whereupon the learned judge left it to the jury to 
say: first, whether the plaintiff was lawfully using the way in ques- 
tion on the day of the accident; secondly, whether the defendant was 
guilty of negligence in leaving the shaft in the state it was on that 
day. The jiuy answered both questions in the aflSrmative, and they 
added that they found " that the shaft was not suflSciently fenced; " 
and they assessed the damages at 230Z. A verdict having been entered 
for the plaintiff for that amount, 

^ Statement abridged. Arguments omitted, and parts of opinions. 



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178 BOLCH V. SMITH [CHAP. U. 

Coleridge, in last Michaelmas Term, obtained a rule nisi for a new 
trial, on the ground that the learned judge misdirected the jiuy in 
not telling them that there was no obligation on the part of the de- 
fandant to fence the shaft; and also that the verdict was against the 
evidence. 

Channell, B. I am of opinion that the rule must be absolute for 
a new trial. [Remainder of opinion omitted.] 

Martin, B. I am of the same opinion. TTie real objection to this 
action is that the plaintiff has failed to establish that there was any 
obligation or duty on the part of the defendant to have this path in 
any other condition than it was at the time of the accident. That 
should have been established in some way. If the plaintiff could have 
shown any such obligation on the part of the defendant he would have 
made out a case, but that was a condition precedent, and the plaintiff 
has wholly failed to do so. The defendant had a right to erect the 
machinery, to erect it in the place he did, and to work it in the manner 
he was doing. 

Then what is the true condition of the plaintiff ? It is said that he 
had a right to go along the path across which the machinery was 
erected, for he was a workman employed in the dock-yard, and had 
Uberty to use the water-closet. But that is a fallacious argument. It 
is true the plaintiff had permission to use the path. Permission in- 
volves leave and license, but it gives no right. If I avail myself of 
permission to cross a man's land, I do so by virtue of a license, not of 
a right. It is an abuse of language to call it a right: it is an excuse 
or license, so that the party cannot be treated as a trespasser. Inas- 
much as there was another way by which the plaintiff might have 
gone, but voluntarily chose the one which was out of order, I think 
he has no right of action against the defendant, and that he ought to 
have been nonsuited at the trial. 

Wilde, B. I am of the same opinion. It is of importance in all 
these cases that the facts upon which the decisions are based should 
be made plain. The plaintiff was one of a number of persons who ob- 
tained leave and license from the dock-yard authorities to cross the 
3rard from one place to another. The defendant had permission from 
the same authorities to put up certain machinery in the yard. The 
plaintiff while walking along the usual track fell down, not by reason 
of any obstruction, but in consequence of stumbling, and in trying to 
save himself, his arm came in contact with a revolving shaft and was 
lacerated. 

I will decide the case as if it were a question between the plaintiff 
and the owners of the jrard, because if they are not responsible for 
putting up the shaft, a fortiori the defendant is not. Then, was there 
any obligation on the owners of the yard not to put up machinery that 
might be dangerous to persons crossing it ? None of the facts tend to 
show that any such obligation existed. If what was put up was an 



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SECT. VI.] GAUTRBT V. EGEBTON 179 

obstruction to any person who used that way, the only consequence 
would be that he would have to go another way. That being so, it 
appears to me that this action cannot lie, because I agree that it is 
founded upon a duty, and none exists. 

That disposes of the case; but I will add that I do not mean to say 
that if the defendant had made a hole in the 3rard, and had covered it 
in a way that was insuflScient, but which appeared to be suflScient, he 
would not have been liable. But here there was nothing of that char- 
acter. The danger was open and visible. There was nothing which 
could be called a " trap.'* 

Pollock, C. B., concurred. Rule abaoliUefor a new tial.^ 



GAUTRET V. EGERTON 

In the Common Pleas, February 11, 1867. 

Reported in Law Reporte, 2 Common Pleaa, 371. 

The declaration in the first of these actions stated that the defend- 
ants were possessed of a close of land, and of a certain canal and cut- 
tings intersecting the same, and of certain bridges across the said canal 
and cuttings, conmiunicating with and leading to certain docks of the 
defendants, which said land and bridges had been and were from time 
to time used with the consent and permission of the defendants by per- 
sons proceeding towards and coming from the said docks; that the 
defendants, well knowing the premises, wrongfully, negligently, and 
improperly kept and maintained the said land, canal, cuttings, and 
bridges, and suffered them to continue and be in so improper a state 
and condition as to render them dangerous and imsaf e for persons law- 
fully passing along and over the said land and bridges towards the 
said docks, and using the same as aforesaid; and that Leon Gautret, 
whilst he was lawfully in and passing and walking along the said close 
and over the said bridge, and using the same in the manner and for 
the purpose aforesaid, by and through the said wrongful, negligent, 
and improper conduct of the defendants as aforesaid, fell into one of 
the said cuttings of the defendants, intersecting the said close as afore- 
said, and thereby lost his life within twelve calendar months next 
before the suit: and the plaintiff, as administratrix, for the benefit 
of herself, the widow of the said Leon Gautret, and A. Gautret, Ac, 
according to the statute in such case made and provided, claimed 
2,500Z. 

» See also Cole v, WillcuU, 214 Mus. 463; Habina v. Twin City Electric Co., 
150 Mich. 41: Cheeley v. Rocheford, 4 Neb. UnofiF. 768, 777. 

For examples of " traps," see Loweiy v. Walker, (1911) A. C. 10; Rollestone v. 
Caasirer, 3 Ga. App. 161 ; Foren t^. Rodick, 90 Me. 276; Hill v. President and Trus- 
tees, 61 Or. 190; Grant v. Hass, 31 Tex. Civ. App. 688; Brinilson v, Chicago R. 
Co., 144 Wis. 614. 



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180 GAUTREt V. EGERTON [CHAP. H. 

The defendants demurred to the declaration, on the ground that " it 
does not appear that there was any legal duty or obUgation on the part 
of the defendants to take means for prevaiting the said land, &c., 
being dangerous and imsafe." Joinder. 

Crompton {Mellish, Q. C, with him), in support of the demurrer. 
— To maintain this action, the declarations ought to show a duty in 
the defendants to keep the canal, cuttings, and bridges in a safe con- 
dition, and also that some invitation had been held out to the deceased 
to come there, and that the thing complained of constituted a sort of 
trap. Seymour v. Maddox, 16 Q. B. 326 (E. C. L. R. vol. 71), 19 
L. J. Q. B. 525; Corby v. Hill, 4 C. B. n. s. 556 (E. C. L. R. vol. 93), 
27 L. J. C. P. 318. The declaration is entirely wanting in all these 
particulars. It is not enough to show that the defendants were aware 
that the place in question was in an imsafe condition, and that the 
public were in the habit of passing along it. Hounsell v. Smyth, 
7 C. B. N. 8. 731, 29 L. J. C. P. 203. 

[WiLi^ES, J. The declaration does not even state that the deceased 
persons were unacquainted with the state of the place.] 

Herschelly for the plaintiff Gautret. — The question raised upon 
this declaration is, whether there is any duty on the part of the defend- 
ants toward persons using their land as the deceased here did. That 
may be negligence in the case of a licensee, which would not be negli- 
gence as against a mere trespasser: and, if there can be any case in 
which the law would imply a duty, it is sufficiently alleged here. 

[WiLLES, J. It may be the duty of the defendants to abstain from 
doing any act which may be dangerous to persons coming upon the 
land by their invitation or permission, as in Indermaur v. Dames, 
Law Rep. 1 C. P. 274.^ So, if I employ one to carry an article which 
is of a peculiarly dangerous nature, without cautioning him, I may be 
responsible for any injury he sustains through the absence of such 
caution. That was the case of Farrant v. Barnes, 11 C. B. n. s. 553, 
31 L. J. C. P. 137. But, what duty does the law impose upon these 
defendants to keep their bridges in repair ? If I dedicate a way to 
the pubUc which is full of ruts and holes, the public must take it as 
it is. If I dig a pit in it, I may be liable for the consequences: but, 
if I do nothing, I am not.] 

It was not necessary to specify the nature of the negUgence which is 
charged: it was enough to allege generally a duty and a breach of it. 
Knowing the bridge to be unsafe, it was the duty of the defendants 
not to permit the public to use it. In Bolch v. Smith, 7 H. & N. 736, 
31 L. J. Ex. 201, the defect in the fencing of the shaft was apparent: 
but the judgments of Channell and Wilde, BB., seem to concede that, 
if there had been a concealed defect, the action would have been main- 
tainable. That shows that there is some duty in such a case as this. 

^ Affirmed in the Exchequer Chamber, L. R. 2 C. P. 311. 



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SECT. VI.] GAUTRET V. EGERTON 181 

Potter f for the plaintiff Jones, submitted that the implied request on 
the part of the defendants to persons having occasion to go to the 
docks to pass by the way in question, raised a duty in them to keep it 
in a safe condition. 

WiLLES, J. I am of opinion that our judgment must be for the de- 
fendants in each of these cases. The argument urged on behalf of the 
plaintiffs, when analyzed, amounts to this, that we ought to construe 
the general words of the declaration as describing whatever sort of 
negUgence the plaintiffs can prove at the trial. The authorities, how- 
ever, and reason and good sense, are the other way. The plaintiff 
must, in his declaration, give the defendant notice of what his com- 
plaint is. He must recover secundum allegata et probata. What is it 
that a declaration of this sort should state in order to fulfil those con- 
ditions ? It ought to state the facts upon which the supposed duty is 
founded, and the duty to the plaintiff with the breach of which the 
defendant is charged. It is not enough to show that the defendant 
has been guilty of negligence, without showing in what respect he was 
negligent, and how he became bound to use care to prevent injury to 
others. All that these declarations allege is, that the defendants were 
possessed of land, and of a canal and cuttings intersecting the same, 
and of certain bridges across the canal and cuttings commimicating 
with and leading to certain docks of theirs; that they allowed persons 
going to and from the docks, whether upon the business or for the 
profit of the defendants or not, to pass over the land; and that the 
deceased persons, in pm^uance of and using that permission, fell into 
one of the cuttings, and so met their deaths. The consequences of 
these accidents are sought to be visited upon these defendants, because 
they have allowed persons to go over their land, not alleging it to 
have been upon the business or for the benefit of the defendants, or 
as the servants or agents of the defendants; nor alleging that the 
defendants have been guilty of any wrongful act, such as digging a 
trench on the land, or misrepresenting its condition, or anything 
equivalent to laying a trap for the unwary passengers; but simply 
because they permitted these persons to use a way with the condi- 
tion of which, for anything that appears, those who suffered the in- 
jury were perfectly well acquainted. That is the whole sum and 
substance of these declarations. If the docks to which the way in 
question led were public docks, the way would be a public way, and 
the township or parish would be bound to repair it, and no such lia- 
bility as this could be cast upon the defendants merely by reason of 
the soil of the way being theirs. That is so not only in reason but 
also upon authority. It was so held in Robbins v. Jones, 15 C. B. n. s. 
221, 33 L. J. C. P. 1, where a way having been for a number of years 
dedicated to the public, we held that the owner of the adjoining house 
was not responsible for death resulting to a person from the giving 
way of the pavement, partly in consequence of its being over-weighted 



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182 GAUTRET V. EGERTON [CHAP. II. 

by a number of persons crowding upon it, and partly from its having 
been weakened by user. Assuming that these were private docks, the 
private property of the defendants, and that they permitted persons 
going to or coming from the docks, whether for their own benefit or 
that of the defendants, to use the way, the dedication of a permission 
to use the way must be taken to be in the character of a gift. The 
principle of law as to gifts is, that the giver is not responsible for dam- 
age resulting from the insecurity of the thing, unless he knew its evil 
character at the time, and omitted to caution the donee. There must 
be something Uke fraud on the part of the giver before he can be made 
answerable. It is quite consistent with the declarations in these cases 
that this land was in the same state at the time of the accident that it 
was in at the time the permission to use it was originally given. To 
create a cause of action, something like fraud must be shown. No 
action will Ue against a spiteful man who, seeing another running into 
a position of danger, merely omits to warn him. To bring the case 
within the category of actionable negUgence, some wrongful act must 
be shown, or a breach of some positive duty: otherwise, a man who 
allows strangers to roam over his property would be held to be an- 
swerable for not protecting them against any danger which they 
might encounter whilst using the license. Every man is bound not 
wilfully to deceive others, or do any act which may place them in 
danger. It may be, as in Corby v. Hill, 4 C. B. n. s. 556, 27 L. J. C. P. 
318, that he is responsible if he puts an obstruction on the way which 
is likely to cause injury to those who by his permission use the way; 
but I cannot conceive that he could incur any responsibility merely by 
reason of his allowing the way to be out of repair. For these reasons, 
I think these declarations disclose no cause of action against the 
defendants, and that the latter are therefore entitled to judgment. 

Keating, J. I am of the same opinion. It is not denied that a dec- 
laration of this sort must show a duty and a breach of that duty. But 
it is said that these declarations are so framed that it would be neces- 
sary for the plaintiffs at the trial to prove a duty. I am, however, 
utterly imable to discover any duty which the defendants have con- 
tracted towards the persons whom the plaintiflts represent, or what 
particular breach of duty is charged. It is said that the condition of 
the land and bridges was such as to constitute them a kind of trap. I 
cannot accede to that. The persons who used the way took it with all 
its imperfections. 

Herschell asked and obtained leave to amend within ten days, on 
payment of costs; otherwise judgment for the defendants. 

Judgment accordingly,^ 

1 Hoimsell v. Smytli, 7 C. B. n. s. 731; Batcbelor v. Portescue, 11 Q. B. D. 474; 
Watson i;. Manitou R. Co., 41 Col. 138; Bentley v. Loverock, 102 lU. App. 166; 
Joseph V, Henrici Co.. 137 111. 171; Indiana R. Co. v, Bamhart. 115 Ind. 399; 
South Bend Iron Works v. Larger, 11 Ind. App. 367; Dixon v. Swift, 98 Me. 207; 
Reardon t;. Thompson, 149 Mass. 267; Blackstone v. Chelmsford Foimdry Co., 



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SECrr. VI.] CAMPBELL V. BOYD 183 

CAMPBELL V. BOYD 

Supreme Court, North Carolina, February Term, 1883. 

Reported in 88 North Carolina Reports^ 129. 

Civil action tried at Fall Term, 1882, of Beaufort Superior Court, 
before Gilliam, J. 

The defendant appealed. 

Smith, C. J. The defendant owns and operates a mill, that has 
been built and used for one hundred years, at the head of Pungo creek. 
A few yards below its site the creek divides, and its waters flow in two 
separate streams. Along its course on either side run parallel public 
roads each two miles distant, and from them have been constructed 
private ways leading up to and meeting at the mill, and affording con- 
venient access from the roads to it. One of these ways was opened by 
former proprietors, and the other in the year 1867, by the defendant. 

In 1875 or 1876, the defendant, with other owners of the interven- 
ing land, imited in opening a connecting way, between those leading 
from the public roads, from near points in each, so as to form a direct 
passway across the two divergent streams from one road to the other, 

170Maa8.321; Vanderbeck t?. Hendry, 34 N. J. Law, 467; Fitzpatrick ». Cumber- 
land Glass Co., 61 N. J. Law, 378; Taylor i;. Turnpike Co., 65 N. J. Law, 102; 
Victory v. Baker. 67 N. Y. 366; Larmore v. Crown R)int Iron Co., 101 N. Y. 391; 
Sterger v. Van Sicklen, 132 N. Y. 499; Englehardt v. Central R. Co^ 139 App. 
Div. 786; McCann v. Thilemann, 36 Misc. 145; Monroe v. Atlantic K. Co., 151 
N. C. 374: Costello v. Fanners' Bank, 34 N. D. 131; Kelley w. City, 41 Ohio St. 
263; Schiffer v. Sauer, 238 Pa. St. 550; Lunsford's Administrator v. Colonial Coal 
Co^ 115 Va. 346 Accord. 

But see Brinilson v. Chicago R. Co., 144 Wis. 614. 

As to liability to children licensees, see Jansen v. Siddal, 41 111. App. 279; Cleve- 
land R. Co. V. Means, (Ind. App.) 104 N. E. 785; Benson v. Baltimore Traction 
Co., 77 Md. 535; McCoy v. Walsh, 186 Mass. 369; Romana v. Boston R. Co., 218 
Mass. 76; Bottum v. Hawks, 84 Vt. 370. 

But see Knapp v, Doll, 180 Ind. 526 {citing cases); Wilmes v. Chicago R. Co., 
175 la. 101; Lyttle v. Town Coal Co., 167 Ky. 345. 

As to liahility where there is a known, permissive, general use by the public, see 
Pomponio v. New York R. Co., 66 Coim. 528; Western R. Co. v. Meigs, 74 Ga. 857; 
Green v. Chicago R. Co., 110 Mich. 648; Bany v. New York R. Co., 92 N. Y. 289; 
Taylor v. Delaware Canal Co., 113 Pa. St. 162; Delaney v. Milwaukee R. Co., 33 
Wis. 67. Compare Tucker v. Draper, 62 Neb. 66. 

Liability in case of gratuitous carriage: [The judge at the trial in char^g the 
jury] " su^ested that the measure of duty towards a bare licensee is different, 
where the licensor accepts the duty of carrying him, from what it is where he 
merely permits him to pass through his premises; and I think the cases support 
this view. ... I think it was competent for the jury to find, as they must be 
taken to have found^ a failure of that ordinary care which is due irom a person who 
undertakes the carnage of another gratuitously. The principle in all cases of this 
class is that the care exercised must be reasonable ; and the standard of reasonable- 
ness naturally miist vary according to the circumstances of the case, the trust re- 
posed, and the skill and apphances at the disposal of the person to whom another 
confides a duty. There is an obvious difference between tne measure of confidence 
reposed and responsibility accepted in the case of a person who merely receives per- 
mission to traverse the premises of another, and in the case where a person or his 
property is received into the custody of another for transportation : see in the case 
of goods, Southcote's Case, (1601) 4 Rep. 83 b. cited in Coggs v. Bernard, 1 Smith, 



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184 CAMPBELL V. BOYD [CHAP. II. 

without going up to the mill. Over these waters they also constructed 
bridges. While this direct route was opened mainly for the conven- 
ience of the defendant and his associates, whose lands were traversed, 
it was also used as well by the public with full knowledge of the de- 
fendant, and without objection from any one in passing between the 
roads. 

In February, 1882, the plaintiff, with his horse, while in the use of 
this connecting way and passing one of the bridges, broke through, 
and both were precipitated into the creek, and the damage sustained 
for the redress of which the suit is brought. 

The flooring of the bridge was soimd, and there was no visible indi- 
cation of weakness or decay to put a person passing over it on his 
guard. But the timbers underneath, and hidden by the floor, were in 
a rotten and imsound condition, and of this the defendant had full 
knowledge before the disaster. 

He was at his mill and saw what occurred, and going up to the place 
remarked to the plaintiff that when he saw him about to enter the 
bridge he thought of calling him to stop, but did not do so; that the 
bridge was unsafe, and he regretted he d[id not stop the plaintiff from 
crossing. 

These are the material facts foimd by the judge, imder the consent 
of parties that he should pass upon the evidence and ascertain the 
facts of the case, and our only inquiry is upon the correctness of his 
ruling that the defendant is liable in damages to the plaintiff, and 
from which the defendant appeals. 

The only case in our reports bearing upon the point is that of Mul- 
holland v. Brownrigg, 2 Hawks, 349. There, the defendant's mill- 
pond overflowed parts of the public road, and hollow bridges had been 
erected, but by whom, did not appear; nor was it shown that they 
were built at the expense of the public. This condition of things had 
existed for twenty years, and the mill had been owned and operated 
by the defendant for the space of five years. The successive mill 

L. C, 11th ed., p. 173, and the notes thereto. In the case of persons received for 
carriage, Parke, B., says in Lygo v. Newbold, (1854) 9 Ex. 302, at p. 305: ' A per- 
son who undertakes to provide for the conveyance of another, although he does so 
g-atuitously, is bound to exercise due and reasonable care.' In Austin v. Great 
Western Ry. Co., [1867] 2 Q. B. 442, at p. 445, Blackburn, J., says: * I think that 
what was said in the case of Marshall v. York, Newcastle and Berwick Ry. Co., 
(1851) 11 C. B. 655, was quite correct. It was there laid down that the right 
which a passenger by railway has to be carried safely does not depend on his hav- 
ing made a contract, but that the fact of his being a passenger casts a duty on the 
company to carry him safely.' " 

Collins, M. R., in Harris v. Perry, [1903] 2 K. B. 219, 225, 226. And see, also, 
Sington on Negligence, 61, 62. But compare Beard v. Klusmeier, 158 Ky. 153. 

In the case of a gratuitous loan of a chattel, the lender owes no duty to the bor- 
rower except to give warning of any defects actually known to the lender. Gagnon 
V. Dana, 69 N. H. 264; Coughlm v. Gillison, [1899] 1 Q. B. 145. " A contract of 
gratuitous service, however, such as one of carriage, involves a duty of reasonable 
care, and must therefore be distinguished from a contract of gratuitous bailment 
or a gift, which does not." Sahnond on Torts, 361. 



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SECT. VI.] CAMPBELL V. BOYD 185 

proprietors had kept the overflowed bed of the road and the bridges 
in repair. The plaintiff's wagon, loaded with goods, passing a bridge, 
broke through, in consequence of its decayed state, and the goods were 
injured by the water. The action was for this injury. It was declared 
by the Court that as a nuisance was created by the flooding of the 
road, and the defendant had undertaken to remedy it in constiaicting 
the bridges, it was his duty, as that of preceding proprietors of the 
mill, to maintain them in a proper condition of repair, and ensure the 
safety of those persons who in using the road had to pass over them, 
and that the dwiage having resulted from his negligence he was liable 
to the plaintiff. The proposition is asserted, that inasmuch as the 
defendant has undertaken to remedy a nuisance of his own creating, 
by constructing the bridge, he undertakes also and is bound to keep 
it in sufficient repair, and is answerable for the cdnsequences of his 
neglect to do so. 

The principle of law, in more general terms and with a wider scope, 
is thus expressed by Hoar, J., in Combs v. New Bed. Con. Co., 102 
Mass. 584. " There is another class of cases in which it has been held 
that, if a person allows a dangerous place to exist in premises occupied 
by him, he will be responsible for injury caused thereby, to any other 
person entering upon the premises by Ws invitation and procurement, 
express or implied, and not notified of the danger, S the person 
injured is in the use of due care." 

" The principle is well settled," remarks Appleton, C. J., " that a 
person injured, without neglect on his part, by a defect or obstruction 
in a way or passage over which he has been induced to pass for a law- 
ful purpose, by an invitation express or implied, can recover dam- 
ages for the injury sustained, against the individual so inviting, and 
being in defaidt for the neglect." Tobin v. P. S. & P. R. R., 69 
Mame, 188. 

Several illustrations of the principle in its different applications 
will be foimd in Wharton on Negligence, § 826, and following. 

The facts of the present case bring it within the rule thus enunci- 
ated. The way was opened by the defendant and his associates; 
primarily, though it was for his and their accommodation, yet, per- 
missively, to the general travelling pubUc. It has, in fact, been thus 
used, and known to the defendant to be thus used, with the acquies- 
cence of himself and the others; and under these circumstances it 
may fairly be assumed to be an invitation to all who have occasion 
thus to use it; and hence a voluntary obligation is incurred to keep 
the bridges in a safe condition, so that no detriment may come to 
travellers. 

Reparation is an inseparable incident of its construction, and, as the 
obligation to repair rests on no other, the liability for neglect must 
rest on those who put the bridges there and invited the public to use 
them. 



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X86 GALLAGHER V. HUMPHREY CCHAP, H. 

It is true the way might have been closed, or the public prohibited 
by proper notices from passing over it, and no one could complain of 
the exercise of the right to do so; but as long as the way is left open 
and the bridges remain for the pubUc to use, it is incumbent on those 
who constructed and maintain them to see that they are safe for all. 

The law does not tolerate the presence over and along a way in 
conmion use, of structures apparently sound, but in fact ruinous, Uke 
man-traps, inviting travellers to needless disaster and injury. The 
duty of reparation should rest on some one, and it can rest on none 
others but those who built and used the bridges, and impliedly at least 
invite the pubUc to use them also. For neglect of this duty they must 
abide the consequences. 

; We hold, th^*efore, that there is no error, and the judgment must be 
£|ffinixed. 

No error. Affirmed.^ 

GALLAGHER v. HXJMPHREY 

In the Queen's Bench, June 14, 1862. 
Reportedin 6 Law Times ReparU, New Series, 684; S. C. 10 Weekly Reporter, 664.« 

• Declaration. That the defendant was possessed of a crane fixed 
upon the New Hibemia Wharf, in a certain passage called Montague 
Close, Southwark, along which passage the plaintiff and others were 
permitted to pass, repass, and use the same as a way to certain 
'^^harves; that the crane was used by the defendant and his servants 
to raise and lower goods over the passage; that the plaintiff was, 
with the permission of the proprietors of the passage, lawftilly passing 
along the said passage to the said wharves; yet the defendant, by 
-himself and his servants, so negligently, &c. managed, directed, and 
conducted themselves that by and through such neglect, &c., a part 
of said crane broke, whilst the defendant, by his servants, was using 
the same, and certain goods fell upon the plaintiff whilst he was 
passing along, &c. and broke both his legs, &c. 

Pleas: 1. Not guilty. 2. That the plaintiff and others were not per- 
mitted by the proprietors of the said passage to pass, repass, and use 
the said passage as a way from a highway to certain wharves, as in the 
declaration charged. 3. That the plaintiff was not, with the permis- 
sion of the proprietors of the said passage, lawfully passing along the 

» Foster V, Portland Min. CJo., (C. C. A.) 114 Fed. 613; Central R. Co. r. 
Robertson, 95 Ga. 430; Chicago R. Co. v. Reinhardt, 235 HI. 576, 139 111. App. 53; 
Indisinapolis Water Co. v. Harold, 170 Ind. 170; Lawson v. Shreveport Water- 
works C!o., Ill La. 73; Schaaf v. St. Louis Basket Co., 151 Mo. App. 35; Furey v. 
New York R. Co., 67 N. J. Law, 270; Fogartv v. Bogart, 59 App. Div. 114; 
Toledo Real Estate Co. v. Putney, 20 Ohio Cir. Ct. Rep. 486; Bush v. Johnston, 
23 Pa. St. 209 Accord. Compare Moffatt v. Kenny, 174 Mass. 311. 

* The case is reprinted from the Law Times Reports, except the opinions of 
Crompton, J., and Blackburn, J., which are taken from the Weekly Reporter. 



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SECT. VI.] GALLAGHER V. HUMPHREY 187 

said passage from the said highway to the said wharves, as in the 
declaration alleged. 

Issue on the said pleas. 

At the trial before Blackburn, J., at the Croydon Summer Assizes, 
1861, it was proved that the plaintiff, the son of a laborer employed in 
the erection of West Kent Wharf, under a contractor for the defend- 
ant's father, had, on the day when the accident happened, taken his 
father's dinner, according to his usual custom, to West Kent Wharf, 
and on his retiun was obliged to pass under a crane erected on the 
defendant's (Hibemia) wharf, and there employed in lowering bar- 
rels of sugar. As he was passing the chain broke, and 12 cwt. of sugar 
fell uix)n him, inflicting the injuries complained of.. The breakage of 
the chain was caused by negligence in the mode of applying the breaks, 
for, after the sugar had been attached the chain of the crane was al- 
lowed i/o run, and then the man suddenly put on the break and the 
jerk caused the weight to rise and fall and the chain to break. Mon- 
tague Close k approached by steps from London Bridge, the gate to 
which was usually opened very early in the morning, and numbers of 
persons, to the knowledge of the defendant, used to pass along the 
passage, and no objection was made to persons using the way if on 
legitimate business. The judge left the following questions to the 
jury: 1st, Was the accident caused by the negligence of the defend- 
ant, or was it a pure accident over which no one could have any 
control ? 2d, Could the boy by reasonable care have avoided the 
accident ? 3d, Were the plaintiff and others permitted to go up 
Montague Close by the owners ? 4th, Did the defendant on the evi- 
dence as disclosed tacitly give permission to the plaintiff to pass that 
way ? 6th, Was the boy going to the wharf for a legitimate purpose ? 
The jury having answered all the questions in favor of the plaintiff, a 
verdict was entered for him, with leave for the defendant to move to' 
set it aside and enter a verdict on the second and third issues. The 
damages were assessed at £100. 

A rule nid having been obtained calling on the plaintiff to show 
cause why the verdict should not be entered for the defendant on the 
second and third issues, — 

Shee^ Serjt.j {Grady with him,) showed cause. On the form of the 
rule as obtained the plaintiff is clearly entitled to succeed, as there was 
evidence that the deifendant did by his acts tacitly give permission to 
the boy to pass along the close for a lawful purpose, and the jury have 
so foimd. But the plaintiff is also entitled to succeed on the broader 
ground. In Corby v. Hill, 4 C. B. n. s. 556, it was held that the de- 
fendant was liable for the negligence of his servant in placing materials 
in a dangerous position, and without notice, on a private road along 
which persons were accustomed to pass by leave of the owners; and 
in Southcote v. Stanley, 25 L. J. 339, Ex.,i a visitor to a person's house 

* The reference should be 25 L. J. (n. s.) or 34 L. J. 



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188 GALLAGHER V. HUMPHREY [CHAP. U. 

was held entitled to recover for injuries caused by opening a glass door 
which was insecure, and which it was necessary for him to open. (He 
was then stopped by the Court.) 

Petersdorff, SerjL, {Bridge with him,) in support of the rule. Mon- 
tague Close was the defendant's private property, and no one had any 
right to be there without his express or implied permission. The 
lowering heavy goods from the warehouses by cranes is a manifestly 
dangerous business, and persons using the way took upon themselves 
whatever risks mi^t be incidental to that business. In Hounsell v. 
Smyth, 7 C. B. n. s. 743, where the defendant was held not to be liable 
for leaving a quarry unfenced on waste land across which the public 
were allowed to pass, Williams, J., said: " No right is averred, but 
merely that the owners allowed persons, for diversion or business, to 
go across the waste without complaint; that is, that they were not so 
churlish as to interfere with any one who went across. But a person 
so using the waste has no right to complain of any excavation he may 
find there; he must accept the permission with its concomitant con- 
ditions, and it may be its perils." [Blackburn, J. Have you any 
authority that persons so using the way take upon themselves the neg- 
ligence of the servants about the place ?] In Bolch v. Smith, 31 L. J. 
201, Ex., where workmen employed in a dockyard were permitted to 
use a place as a way on which revolving machinery had been erected, it 
was held that the right so to use the place was only the right not to be 
treated as a trespasser, and that there was no obligation to fence the 
machinery, and no liability for insufficiently fencing it. [Cockburn, 
C. J. There was the ordinary state of things in that case, and no 
superadded negligence.] 

Cockburn, C. J. I doubt whether on the pleadings and this rule it 
is competent to enter into the question of negligence, and whether the 
whole matter does not turn upon the question whether permission was 
or was not given to the plaintiff to pass along the way. But I should 
be sorry to decide this case upon that narrow ground. I quite agree 
that a person who merely gives permission to pass and repass along his 
close is not boimd to do more than allow the enjoyment of such per- 
missive right under the circumstances in which the way exists; that 
he is not bound, for instance, if the way passes along the side of a 
dangerous ditch or along the edge of a precipice, to fence ofif the ditch 
or precipice. The grantee must use the permission as the thing exists. 
It is a different question, however, where negligence on the part of the 
person granting the permission is superadded. It cannot be that, hav- 
ing granted permission to use a way subject to existing dangers, he is 
to be allowed to do any further act to endanger the safety of the per- 
son using the way. The plaintiff took the permission to use the way 
subject to a certain amoimt of risk and danger, but the case assimies a 
different aspect when the negligence of the defendant — for the negli- 
gence of his servants is his — is added to that risk and danger. The 



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SBCrr. VI.] GALLAGHER V. HUMPHREY 189 

way in question was a private one leading to different wharves. On 
part of the way a wharf was being constructed or repaired, and the 
plaintiff's father was employed upon that work. It was the father's 
habit not to go home to his meals, and the boy used to take them to 
him at the wharf, and on this occasion was passing along carrying his 
father's dinner. The plaintiff was therefore passing along on a per- 
fectly legitimate purpose, and the evidence is that the defendant per- 
mitted the way to be used by persons having legitimate business upon 
the premises. That being so, the defendant places himself by such 
permission imder the obligation of not doing anything by himself or 
his servants from which injury may arise, and if by any act of negU- 
gence on the part of himself or his servants injury does arise, he is 
liable to an action. That is the whole question. The plaintiff is 
passing along the passage by permission of the defendant, and though 
he could only enjoy that permission under certain contingencies, yet 
when injury arises not from any of those contingencies, but from 
the superadded n^ligence of the defendant, the defendant is liable 
for that negligence as much as if it had been upon a public highway. 

WiGHTMAN, J. The rule in this case was obtained on a very narrow 
groimd. The declaration having alleged that the plaintiff and others 
were permitted to pass, repass, and use the way in question, and that 
the plaintiff was there with the permission of the proprietors of the 
passage lawfully passing along the passage, the defendant took issue 
on the fact whether such right to pass along the passage was permitted 
by the defendant. I think that there was evidence to show that the 
plaintiff had the permission of the defendant to use the way, and that 
he was lawfully there at the time of the accident. I entirely agree with 
my Lord Chief Justice that the plaintiff is also entitled to succeed on 
the larger ground. It appears to me that such a permission as is here 
alleged may be subject to the qualification that the person giving it 
shall not be liable for injuries to persons using the way arising from 
the ordinary state of things, or of the ordinary nature of the business 
carried on; but that is distinguishable from the case of injuries wholly 
arising from the n^ligence of that person's servants. 

Crompton, J. I am of the same opinion. I think we should look 
not only to the grounds upon which this rule was granted, but to the 
real defence set up by my brother Petersdorff. That defence is, in 
effect, that the plaintiff was using the way only under the qualified per- 
mission that he should be subject to any negligence of the plaintiff or 
his servants. If that defence be sustainable upon the general issue, or 
otherwise, we should see whether it is made out, and I am of opinion 
that it is not made out. I quite agree with what has fallen from my 
Lord and my brother Wightman. There may be a public dedication of 
a way, or a private permission to use it subject to a qualification; for 
example, subject to the danger arising from a stone step or a projecting 
house; and in such a case the public, or the persons using the way, 



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190 GALLAGHEP V. HUMPHREY [CHAP. It. 

take the right to use it subject to such qualification; but they are not 
thereby to be made subject to risks from what may be called active 
negligence. Whenever a party has a right to pass over certain ground, 
if injury occurs to him while so passing from negligence, he has a right 
to compensation. The argument of my brother PetersdorflF fails there- 
fore upon this ground. I think, too, that it is doubtful whether even 
the fact that the injured person was present unlawfully would excuse 
negligence, though it would be an element in determining what is neg- 
ligence, and what is not. In the present case, however, that question 
does not arise, as there is no doubt the plaintiff was there upon a 
legitimate errand. 

Blackburn, J. I am of the same opinion. If the substantial de* 
fence raised existed I am not sure but what it could be raised imder 
the present pleadings, and the leave reserved; but at any rate I think 
we could amend the pleadings, if necessary, to raise it. But I do not 
think that any such defence exists here. The plaintiff seeks to recover 
for the negligence of the defendant. Now, the existence of negligence 
depends upon the duty of the party charged with it. I concur with the 
judgment of the Court of Exchequer in Bolch v. Smith that, when per- 
mission is given to a person to pass through a yard where dangerous 
machinery is at work, no duty is cast upon the person giving such per- 
mission to fence the machinery against the person permitted so to pass. 
That decision does not touch the present case, which falls rather 
within the remark then made by my brother Wilde : " If persons in the 
condition of the defendant had left anything like a trap in route used 
on the premises, I am far from saying they would not be liable." This 
is more Uke the case of Corby v. Hill, where the matter placed upon 
the road is called a trap set for persons using it; and it is clear that 
when one gives another permission to pass over his land, it is his duty 
not to set a trap for him. Here the boy was passing upon a legitimate 
errand while the defendant's servants were employed in lowering 
weights. If he had sustained any injury by a weight descending, with- 
out any negligence of the defendant's servants, there is no doubt that 
he could not recover, but he suffered through the negligence of the per- 
sons lowering the bags, who were well aware that people were in the 
habit of passing below, and that danger would arise if the chain broke. 
I think, therefore, that it was the duty of the defendant and his serv- 
ants to use ordinary care that the chain should not break. The jury 
have found that they neglected that duty, and I do not disagree with 
their finding. Our decision does not conflict with the judgment of the 
Comt of Exchequer in Bolch v. Smith, or of the Conunon Pleas in 
Hoimsell v. Smyth. Rule discharged.^ 

» Fdton V. Aubrey, 74 Fed. 350; De Haven v. Hennessey, (C. C. A.) 137 Fed. 
472: Standard Car Co. v. McGuire, 161 Fed. 627; Pompjonio v. New York R. CJo., 
66 Conn. 528; Rink v, Lowry, 38 Ind. App. 132; Schmidt v. Michigan Coal Co., 
159 Mich. 308; Clarkinv.Biwabik-Be88emerCo.,65Minn.483; Hyatt v. Murray, 
101 Minn. 507; Schaaf v. St. Louis Basket Co., 151 Mo. App. 35; Knowles v. 



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SECT. Vli] CARSKADDON V. MILLS 491 

CARSKADDON v. MILLS 

In the Appellate Court, Indllnta, May Tebm, 1892. 
Reported in 5 Indiana Appellate Court RepoHSy 22. 

Action for damage to plaintiflf's horse.^ Trial by the court. The 
case made by plaintiff's evidence was in substance as follows: — 

Defendant purchased a lot of land in October, 1890. Across this lot 
ran a road leading from one street to another, having a well-defined 
track made by wagons, horses, etc. The road was not a public high- 
way, but had been used by the travelling public generally for a period 
of from five to fifteen years. Defendant's lot was not fenced on the 
front and rear, the direction in which the road ran, but was fenced on 
the sides. After building a house on the lot, defendant " informed " 
the people travelling over this roadway not to use it any longer for 
such purpose; but no heed was paid to this. In the latter part of De- 
cember, 1890, in order the more effectually to stop the travel over the 
lot, the defendant stretched a strand of barbed wire across the rear 
end of the lot, about three feet above the ground and at right angles, 
or nearly so, with said road. The entire fence was upon the appellee's 
lot. No notice of any kind was given of this obstruction otherwise 
than as it advertised itself. The wire could not be seen in the dark 
of night and only a short distance — twenty to twenty-five feet — 
in daylight. There were no poets that could be seen from the road in 
the night when the accident hereinafter alluded to occurred. The ap- 
pellant, who lived in that commimity, had frequently travelled over 
the road leading across this lot, and had no notice or knowledge of its 
being closed up with the wire. The last time before the accident 
when he passed over the lot was in September or October, 1890. At 
about 6 o'clock on the evening of January 1, 1891, after it had become 
too dark to see this wire, the appellant attempted to drive across this 
lot, in the road, to perform some legitimate errand on the other side. 
Not knowing of the presence of the wire, he drove his horse briskly 
ahead of him imtil the animal came up suddenly against the barbs, 
Clotting a gash in its front leg four to five inches in length and two 
mches deep, severing the frontal muscle, from which the horse was 
injured, to the damage of the appellant. 

Exeter Mfg. CJo., 77 N. H. 268; Houston R. Co. v. Bulger. 35 Tex. Civ. App. 478; 
Houston R, Co. v. O'Leary, (Tex. Civ. App.) 136 S. W. 601 (exploeion of car con- 
taining fireworks); St. Louis R. Co. v. Balthrop. (Tex. Civ. App.) 167 S. W. 246; 
Hoadley v. International Paper Co., 72 Vt. 79 Accord, 

Illinois R. Co, v, Godfrey, 71 III. 500; Cunningham v. Toledo R. Co., 260 m. 
589; Dixcm ». Swift, 98 Me. 207; O'Brien v. Union R. Co., 209 Mass. 449 Contra, 
See also Fox v. Warner Asphalt Co.. 204 N. Y. 240; Roche v, American Ice Co., 
140 App. Div. 341 ; Rosenthal v. Umted Beef Co., 52 Misc. 166. Compare Knight 
V. Lanier, 69 App. Div. 454. 

^ Statement fubridged. 



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192 CARSKADDON V. BOLLS [CHAP. n. 

When the appellant had closed his evidence, the learned judge ob- 
served that he had examined the law of the case, and saw no reason 
why a man could not fence in his own land, on his own ground, and 
that, [if] " a travelling man over such property taking the license into 
his own hand, without invitation or inducement, because others do so, 
suffers injury, he must put up with it." 

The judge ruled that plaintiff's evidence did not make out a prima 
facie right to recover; and foimd for defendant; den3ang plaintiff's 
motion for a new trial. Plaintiff appealed. 

Reinhard, C. J. [The learned judge said that a license may be 
created either by parol or by acquiescence in the use of the property 
for the purpose in question without objection. He field that plaintiff 
was prima facie a licensee, and not a trespasser.] 

A mere license, however, to travel over the land of another may be 
revoked at any time at the pleasure of the licensor. Parish v, Kaspar, 
109 Ind. 686; Simpson v. Wright, 21 Dl. App. 67; 13 Am. & Eng. 
Encyc. of Law, 555. 

Where the license is once proved, however, or a prima facie case 
of such license has been made out, it then devolves upon the party 
asserting a revocation to prove it. Blunt v. Barrett, 54 N. Y. Sup. 
648. 

Consequently if the license in the present case was claimed to have 
been discontinued or revoked, the burden was upon appellees to show 
that fact. 

Was such revocation established, or was there any evidence from 
which the court could infer the same ? 

The transfer of the property, or the fencing of the same, may, imder 
ordinary circumstances, be sufficient to amount to a revocation. Or- 
dinarily a man has a right to use his own property as he pleases, but 
at the same time this gives him no right to use it to the detriment or 
injury of his neighbor. We think the erection of an ordinary fence 
around the lot, one that was not calculated to inflict injury, was proper 
and right, and it was the privilege of the appellees to thus close up 
their premises without asking of any one the permission to do so. But 
whenever they undertook to inclose their property under circum- 
stances that made it dangerous to those likely to pass over it, and 
which the appellees must anticipate would incur injury by it, it be- 
came their duty, if such dangerous means must be employed to accom- 
plish the purpose, to give some sort of warning. 

Thus it was held in Houston, etc., R. W. Co. v. Boozer, 70 Tex. 530, 
that if the owner of the land has been accustomed to permit others to 
use his property to travel over to such an extent as to produce a con- 
fident belief that the use will not be objected to, he must not mislead 
them by failing to give a proper warning of his intention to recall the 
permission. See, also, Cornish v. Stubbs, 6 L. R. C. P. 334; Mellor 
V. Watkins, L. R. 9 Q. B. 400. 



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SECT. VI.] CABSKADDON V. BOLLS 193 

While we grant the clear right of the appellees to revoke the license; 
we assert as emphatically that they must do so in a manner not cal- 
culated under ordinary circun^tances to inflict injury unnecessarily. 
Although a Ucensee acquires no interest, as the term is usually em- 
ployed, nor property ri^t in the real estate over which he is allowed 
to travel, he yet has the right not to be wilfully or even recklessly in- 
jured by the acts of the owner. It cannot be said truthfully that the 
owner does not owe same duty to a licensee. 

At the time of the stretdiii^ of the wire the appellees must have 
known that the public would continue to travel over this lot until in 
some way prevented from doing so. They must have known further 
that a sin^e strand of wire, without posts at the roadside, or other 
means calculated to attract the attention of passers-by, could not be 
seen in the dark, and was a dangerous obs^ction, liable to injure 
those coming in contact with it. They must, therefore, have antici- 
pated just such results as the one that happened to the appellant. It 
was their clear duty, consequently, in case they desired to make use 
of the dangerous wire, to shut out the public from going over their lot, 
to give some warning by which the presence of the wire might be 
detected. Had they used an ordinary fence, one constructed out 
of material not necessarily dangerous to life and limb even if en- 
countered in the dark, the case might be otherwise, and notice mi^ 
not have been necessary. But the stretching of the barbed wire, with- 
out notice, imder the circmnstances was, we think, a plain violation 
of duty. 

The case made by the evidence is one of more than mere passive neg- 
ligence. In that class of cases it is well enough settled that there is no 
liability to a mere licensee. Thus where the owner of promises inad- 
vertently leaves imguarded a pit, hatchway, trap-door, cistern, or 
other dangerous opening, and one who is present merely by permis- 
sion and not by invitation, e3q)ress or implied, faDs into the opening 
and is injured, be cannot recover, as, in such case, he enjoys the license 
subject to the risks. Thiele v. McManus, 3 Ind. App. 132. But while 
an owner may not be liable to one who is thus injured by mere inatten- 
tion and neglect of the owner, there could be no doubt of his liability 
if it were shown that the obstruction was placed tiiere purposely to 
keep the lic^isee from entering the premises, or for the very purpose of 
inflicting injury if an attempt be made to cross. As well might an 
owner give permission to his nei^bor to travel over his field and then 
set a trap to hurt him. 

Where the owner of ground digs a pit or erects other dangerous 
obstructions at a place where it is probable that persons or AT^imRlg 
may go and become injured, without usii^ proper care to guard the 
same, it is well settled in this state that there is a liability, and that the 
owner must respond in damages for any injury incmred by such n^- 
ligence. Yoimg r. Harvey, 16 Ind. 314; Graves v. Thomas, 95 Ind. 



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194 INDERMAUR V. DAMES [CHAP. U. 

361; Mayhew v. Burns, 103 Ind. 328; Penso v. McConnick, 126 Ind. 
116. 

A barbed wire fence is not of itself an unlawful one, and the build- 
ing of such along a public highway is not necessarily a negligent act; 
but yet, even in such case as that, there may be circumstances under 
which a person building such a fence, in a n^ligent manner, will be 
held liable for damages caused thereby. Sisk v. Crump, 112 Ind. 504. 
All these cases proceed upon the assumption that the party whose neg- 
ligence caused the injury owed the oiier some duty which he failed 
to perform, for, after all, negligence is nothing more nor less than the 
failure to discharge some legal duty or obligation. 

Even trespassers have some rights an owner is bound to respect. 
If a person, without permission, should attempt to cross the field of 
another, and tramp down his growing grain, it would not be con- 
tended, we apprehend, that this gave the owner any ri^t to kill the 
trespasser, or even to seriously injure him unnecessarily. The use of 
spring guns, traps, and other devices to catch and injure trespassing 
persons or animals has been condenmed both in this country and in 
England. Hookerv. Miller, 37 Iowa, 613; Deane v. Clayton, 7 Taunt. 
489. If such means may not be employed against trespassers, we do 
not see upon what principle it can be held that it is proper to use them 
against one who has a permissive right to go upon the property where 
they are placed. 

While in the case at bar there may be no proof of intentional injury, 
the facts, we think, bring the case within the principle declared in 
Young V, Harvey, supra; Graves v. Thomas, supra; Penso v. McCor- 
mick, supra; and Sisk v. Crump, supra. 

The court should have sustained the motion for a new trial. 

Jiuigment reversed.^ 

INDERMAUR v. DAMES 

In the CoBfMON Pleas, February 26, 1866. 
Reported in Law Reports, 1 Common PleaSj 274. 

The judgment of the Court (Erle, C. J., Willes, Keating, and 
Montague Smith, JJ.) was delivered by * 

Willes, J. This was an action to recover damages for hurt sus- 
tained by the plaintiff's falling down a shaft ftt the defendant's place 
of business, through the actionable negligence, as it was alleged, of the 
defendant and his servants. 

» CJorby v. Hill. 4 C. B. n. s. 656; Rooney v, Woolworth, 78 Conn. 167; Graves 
ff. Thomas, 95 Xnd. 361; Penso v. McConnick, 125 Ind. 116: Morrison v. Carpen- 
ter, 179 Mich. 207: Wheeler v. St. Joseph Stock Yards Co., 66 Mo. App. 260 
Accord. Compare Ellsworth v. Metheney, (C. C. A.) 104 Fed. 119; Cahill v. Stone, 
153 Cal. 571; Martin v, Louisville Bridge Co., 41 Ind. App. 493; Quigley v. 
Clough, 173 Mass. 429; Phillips v. Library Co., 55 N. J. Law, 307; Beck v. Carter, 
68 N. Y. 283; Hanson v, Spokane Valley Land Co., 58 Wash. 6. 

* Statement and arguments omitted. 



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SECT. VI.] INDERMAUR V. DA3iE8 195 

At the trial before the Lord Chief Justice at the sittings here after 
Michaelmas Term, the plaintiff had a verdict for 400Z. damages, 
subject to leave reserved. 

A rule was obtained by the defendant in last term to enter a non- 
suit, or to arrest the judgment, or for a new trial because of the 
verdict being against the evidence. 

The rule was argued diuing the last term, before Erie, C. J., 
Keating and Montague Smith, JJ., and myself, when we took time 
to consider. We are now of opinion that the rule ought to be dis- 
charged. 

It appears that the defendant was a sugar-refiner, at whose place of 
business there was a shaft four feet three inches square, and twenty- 
nine feet three inches deep, used for moving sugar. The shaft was 
necessary, usual, and proper in the way of the defendant's business. 
Whilst it was in use, it was necessary and proper that it should be open 
and imfenced. When it was not in use, it was sometimes necessary, 
with reference to ventilation, that it should be open. It was not neces- 
sary that it should, when not in use, be imfenced; and it might then 
without injury to the business have been fenced by a rail. Whether it 
was usual to fence similar shafts when not in use did not distinctly 
appear; nor is it very material, because such protection was imques- 
tionably proper, in the sense of reasonable, with reference to the safety 
of persons having a right to move about upon the floor where the shaft 
in fact was, because in its natiure it formed a pitfall there. At the time 
of the accident it was not in use, and it was open and unfenced. 

The plaintiff was a joume3rman gas-fitter in the employ of a pat- 
entee who had supplied the defendant with his patent gas-regulator, to 
be paid for upon the terms that it effected a certain saving: and, for 
the purpose of ascertaining whether such a saving had been effected, 
the plaintiff's employer required to test the action of the regulator. 
He accordingly sent the plaintiff to the defendant's place of business 
for that pmpose; and, whilst the plaintiff was engaged upon the floor 
where the shaft was, he (under circumstances as to which the evi- 
dence was conflicting, but) accidentally, and, as the jury foimd, with- 
out any fault or negligence on his part, fell down the shaft, and was 
seriously hint. 

It was argued, that, as the defendant had objected to the plaintiff's 
working at the place upon a former occasion, he (the plaintiff) could 
not be considered as having been in the place with the defendant's 
leave at the time of the accident: but the evidence did not establish 
a peremptory or absolute objection to the plaintiff's being employed, 
so as to make the sending of him upon the occasion of the accident any 
more against the defendant's will than the sending of any other work- 
man: and the employment, and the implied authority resulting 
therefrom to test the apparatus were not of a character involving 
personal preference (diledus personoe)^ so as to make it necessary that 



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196 INDERMAUR V. DAMES [CHAP. n. 

the patentee should himself attend. It was not suggested that the 
work was not joumejnnan's work. 

It was also argued that the plaintiff was at best in the condition of 
a bare licensee or guest who, it was urged, is only entitled to use the 
place as he finds it, and whose complaint may be said to wear the cohyt 
of ingratitude, so long as there is no design to injure him : see Hounsell 
V. Smyth, 7 C. B. n. s. 371, 29 L. J. (C. P.) 203. 

We think this argument fails, because the capacity in which the 
plaintiff was there was that of a person on lawful business, in the 
course of fulfilling a contract in which both the plaintiff and the de- 
fendant had an interest, and not upcm bare permission. No sound 
distinction was suggested between the case of the servant and the case 
of the employer, if the latter had thought proper to go in person; nor 
between the case of a person engaged in doing the work for the deifend- 
ant pursuant to his employment, and that of a person testing the work 
which he had stipulated with the defendant to be paid for if it stood 
the test; whereby impliedly the workman was to be allowed an on- 
stand to apply that test, and a reasonable opportunity of doing so. 
Any duty to enable the workman to do the work in safety, seems 
equally to exist during the accessory employment of testing: and any 
duty to provide for the safety of the master workman, seems equally 
owing to the servant workman whom he may lawfully send in his 
place. 

It is observable, that, in the case of Southcote v. Stanley, 1 H. & N. 
247, 25 L. J. (Ex.) 339, upon which much reliance was properly 
placed for the defendant, Alderson, B., drew the distinction between a 
bare licensee and a person ccuning on business, and Bramwell, B., 
between active negligence in respect of imusual danger known to the 
host and not to the guest, and a bare defect of construction or repair, 
which the host was only negligent in not finding out or anticipating 
the consequence of. 

There is considerable resemblance, though not a strict analogy, be- 
tween this class of cases and those founded upon the rule as to volun- 
tary loans and gifts, that there is no remedy against the lender or giver 
for damage sustained f rcmi the loan or gift, except in case of imusual 
danger known to and concealed by the lender or giver. Macarthy v. 
Younge, 6 H. & N. 329, 30 L. J. (Ex.) 227. The case of the carboy 
of vitriol * was one in which this Court held answerable the bailor of 
an imusually dangerous chattd, the quality of which he knew, but did 
not tell the bailee, who did not know it, and, who as a proximate con- 
sequence of his not knowing, and without any fault on his part, 
suffered damage. 

The cases referred to as to the liability for accidents to servants and 
persons employed in other capacities in a business or profession which 
necessarily and obviously exposes them to danger, as in Seymour v. 

» Farrant v. Barnes, 11 C. B. n. s. 553; 31 L. J. (C. P.) 137. 



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SECT. VIO INDEBMAUR V. DAMES 197 

Maddox, 16 Q. B. 326, also have their special reasoDs. The servant 
or other person so employed is supposed to undertake not only all the 
ordinary risks of the employment into which he enters, but also aH 
extracH^inary risks which he knows of and tiiinks proper to incur, 
including those caused by the misconduct of his fellow-servants, not 
however including those which can be traced to mere breach of duty 
on the part of the master. In the case of a statutory duty to fence, 
even the knowledge and reluctant submission of the servant who has 
sustained an injury, are held to be only elements in detennining 
whether there has been contributory n^^Ugence: how far this is the 
law between master and servant, where there is danger known to 
the servant, and no statute for his iHX>tectioQ, we need not now con- 
sider, because the plaintiff in this case was not a servant of the defend- 
ant, but the servant of the patentee. Hie question was adverted to, 
but not decided, in Clarke v. Holmes, 7 H. & N. 937, 31 L. J. (Ex.) 
356.* 

The authorities respecting guests and other bare licensees, and those 
respecting servants and diiere who consent to incur a risk, being there- 
fore inapfdicable, we are to consider what is the law as to the duty of 
the occupier of a building with reference to persons resorting thereto 
in the course of business, upon his invitation, express or implied. The 
conmion case is that of a customer in a shop: but it is obvious that 
this is only one of a class; for, whether the customer is actually 
chaffering at the time, or actually buys or not, he is, according to an 
undoubted coiuse of authority and practice, entitled to the exercise of 
reasonable care by the occupier to prevent damage from imusual 
danger, of which the occupier knows or ou^t to know, sucb as a 
trap-door left open, unfenced, and unlighted: Lancaster Canal Com- 
pany V, Pamaby, 11 Ad. 4 E. 223, 3 P. 4 D. 162; per cur. ChajMnan 
V. Rothwell, E. B. 4 E. 168, 27 L. J. (Q. B.) 315, where Southcote v. 
Stanley, 1 H. 4 N. 247, 25 L. J. (Ex.) 339, was cited, and the Lord 
Chief Justice, then Erie, J., said: " The distinction is between the 
case of a visitor (as the plaintiff was in Southcote v. Stanley), who 
must take care of himself, and a custcxner, who, as one of the public, 
is invited for the purposes of business carried on by the defendant.*' 
This protection does not depend upon the fact of a contract being 
entered into in the way of the shopkeeper's business during the stay 
of the customer, but upon the fact that the customer has come into 
the shop in pursuance of a tacit invitation given by the shopkeeper, 
with a view to business which concerns himself. And, if a customer 
were, after buying goods, to go back to the shop in order to complain 
of the quality, or that the change was not right, he would be just as 
much tibere upon business which concerned the shopkeeper, and as 
much entitled to protection during this accessory visit, though it 
might not be for the shopkeeper's benefit, as during the principal visit, 

» And see Bolch v. Smith, 7 H. & N. 736; 31 L. J. (Ex.) 201. 



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198 INDERMAUR V. DAMES [CHAP. H. 

which was. And if, instead of going himself, the customer were to 
send his servant, the servant would be entitled to the same considera- 
tion as the master. 

The class to which the customer belongs includes persons who go 
not as mere volunteers, or licensees, or guests, or servants, or persons 
whose employment is such that danger may be considered as bargained 
for, but who go upon business which concerns the occupier, and upon 
his invitation, express or implied. 

And, with respect to such a visitor at least, we consider it settled 
law, that he, using reasonable care on his part for his own safety, is 
entitled to expect that the occupier shall on his part use reasonable 
care to prevent damage from imusual danger which he knows or ought 
to know; and that, where there is evidence of neglect, the question 
whether such reasonable care has been taken, by notice, lighting, 
guarding or otherwise, and whether there was contributory negligence 
in the suJBferer, must be determined by a jury as matter of fact. 

In the case of Wilkinson v. Fairrie, 1 H. & C. 633, 32 L. J. (Ex.) 
73, relied upon for the defendant, the distinction was pointed out be- 
tween ordinary accidents, such as falling down stairs, which ought to 
be imputed to the carelessness or misfortune of the suflFerer, and acci- 
dents from imusual, covert danger, such as that of falling down into 
a pit. 

It was ably insisted for the defendant that he could only be bound to 
keep his place of business in the same condition as other places of busi- 
ness of the like kind, according to the best known mode of construc- 
tion. And this argument seems conclusive to prove that there was no 
absolute duty to prevent danger, but only a duty to make the place as 
little dangerous as such a place could reasonably be, having regard to 
the contrivances necessarily used in carrying on the business. But we 
think the argument is inapplicable to the facts of this case: first, 
because it was not shown, and probably could not be, that there was 
any usage never to fence shafts; secondly, because it was proved, that, 
when the shaft was not in use, a fence might be resorted to without 
inconvenience; and no usage could establish that what was in fact 
imnecessarily dangerous was in law reasonably safe, as against persons 
towards whom there was a duty to be careful. 

Having fully considered the notes of the Lord Chief Justice, we 
think there was evidence for the jmy that the plaintiff was in the place 
by the tacit invitation of the defendant, upon business in which he was 
concerned; that there was by reason of the shaft unusual danger 
known to the defendant; and that the plaintiff sustained damage by 
reason of that danger, and of the neglect of the defendant and his 
servants to use reasonably sufficient means to avert or warn him of 
it: and we cannot say that the proof of contributory negligence was 
so clear that we ought on this ground to set aside the verdict of the 
jury. 



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SECT. VI.] INDERBiAUR V. DAMES 199 

As for the argument that the plaintiflf contributed to the accident by 
not following his guide, the answer may be that the guide, knowing 
the place, ought rather to have waited for him; and this point, aa 
matter of fact, is set at rest by the verdict. 

For these reasons, we think there was evidence of a cause of action 
in respect of which the jury were properly directed; and, as every 
reservation of leave to enter a nonsuit carries with it an implied con- 
dition that the Court may amend, if necessary, in such a manner as to 
raise the real question, leave ought to be given to the plaintiflf, in the 
event of the defendant desiring to appeal or to bring a writ of error, to 
amend the declaration by stating the facts as proved, — in eflfect, that 
the defendant was the occupier of and carried on business at the place; 
that there was a shaft, very dangerous to persons in the place, which 
the defendant knew and the plaintiflf did not know; that the plaintiflf, 
by invitation and permission of the defendant, was near the shaft, 
upon business of the defendant, in the way of his own craft as a gas- 
fitter, for hire, &c., stating the circumstances, the negligence, and 
that by reason thereof the plaintiflf was injured. The details of the 
amendment can, if necessary, be settled at chambers. 

As to the motion to arrest the judgment, for the reasons already 
given, and upon condition that an amendment is to be made if and 
when required by the defendant, it will follow the fate of the motion 
to enter a nonsuit. 

The other arguments for the defendant, to which we have not par^ 
ticularly adverted, were no more than objections to the verdict as 
being against the evidence: but it would be wrong to grant a new 
trial without a reasonable expectation that another jury might take a 
diflferent view of the facts; and, as the Lord Chief Justice does not 
express any dissatisfaction with the verdict, the rule upon this, the 
only remaining ground, must also be discharged. 

Rule discharged.^ 

AflSrmed in Exchequer Chamber, L. R. 2 C. P. 311. 

1 Bennett v. Louisville R. Co^ 102 U. S. 677; Alabama Steel Co. v. Clements, 
146 Ala. 259: Hobart Tie Co. v. Keck, 89 Ark. 122; Whitney v. New York R. Co., 
87 Conn. 623; Christopher v, Russell, 63 Fla. 191; Southern Express Co. v. Wil- 
liamson, 66 Fla. 286: Horton v. Harvey, 119 Ga. 219; Latham v. Roach, 72 111. 
179; Spry Lumber Co. v, Duggan, 182 111. 218; Calvert v. Springfield Electric Co., 
231 111. 290; Laurie v. McCuilough, 174 Ind. 477; Young v. People's Gas Co., 128 
la. 290; Anderson v. Hair, 103 Ky. 196; Carleton v, Franconia Iron Co., 99 Mass. 
216; McDermott v. Sallaway, 198 Mass. 517; Marston v, Reynolds, 211 Mass. 




66 Minn. 460; Kean v. Schoening, 103 Mo. App. 77; Shaw v. Goldman, 116 Mo. 
App. 332: Montague v. Hanson, 38 Mont. 376; Land v. Fitzgerald, 68 N. J. Law, 
28: Smith v, Jackson, 70 N. J. Law, 183: Ackert v. Lansing, 59 N. Y. 646; Weller 
V. Consolidated Gas Co., 198 N. Y. 98; Wilson v. Olano. 28 App. Div. 448; Withers 
V. Brooklyn Exchange, 106 App. Div. 255; Higgins v. Kuppert, 124 App. Div. 530; 
Massey v. Seller, 45 Or. 267; Newingham v. Blair, 232 Pa. St. 511; Freer v. Cam- 
eron, 4 Rich. Law, 228; League v, Stradley, 68 S. C. 515; Richmond R. Co. v. 



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200 MCNEE V. COBURN TROLLEY TRACK CO. [CHAP. H. 

McNEE V. COBURN TROLLEY TRACK COMPANY 

SuFBBME Judicial Cottbt, Massachusetts, Fsbruabt 24, 1896. 

Reported in 170 MassaekuseUa Reports, 283. 

Tort, for personal injuries occasioned to the plaintiff by the fall of 
an elevator upon which he was riding while in the defendant's employ. 
Trial in the Superior Court, before Mason, C. J., who directed the jury 
to return a vwdict for the defendant; and reported the case for the 
determination of this court. If the case should have been submitted 
to the jury, judgment was to be entered for the plaintiff in a sum 
named; otherwise, judgment on the verdict. The facts sufficiently 
appear in the opinion. 

Moore, 94 Va. 493: Smith v. Parkersburg AflB'n, 48 W. Va. 232; Landry v. Great 
Northern R. Co., 152 Wis. 379 Accord, 

As to chUd aeoompanying itwUee: see Butler 9. Chicago R. Co., 155 Mo. App. 
287. 

LiabUity to children invitees: see Miller v. Peck Dry Goods Co., 104 Mo. App. 
609: Houck P, Chicago R. Co., 116 Mo. App. 659. 

IdabilUy where plaintiff departs from or goes beyond the permission or invikUion: 
New York Oil Co. v, Pusev, 211 Fed. 622; Louisville R. Co. v. Sides, 129 Ala. 399; 
First Nat. Bank v. Chandler, 144 Ala. 286; Coberth v. Great Atlantic Co., 36 App. 
D. C. 569; Etheredge v. Central R. Co., 122 Ga. 853: Bennett w. Buttcrfield. 112 
Mich. 96; Hutchinson v. Cleveland Iron Co., 141 Mich. 346; Trask v. Shotwell, 41 
Minn. 66; Ryerson v, Bathgate, 67 N. J. Law, 337: GilfiUan v, German Hospital. 
115 App. Div. 48; Castoriano v. Miller, 15 Misc. 254; Weaver v, Carnegie Steel 
Co., 223 Pa. St. 238; Hagan v. Delaware Steel Co., 240 Pa. St. 222: Pierce v. 
Whitcomb, 48 Vt. 127; Peake v. Buell, 90 Wis. 508; Lehmann v. Amsterdam 
Coffee Co., 146 Wis. 213. 

But compare Pauckner v, Wakem, 231 HI. 276. 

Use for purpose not intended by owner or occupier: Thiele v, McManus, 3 Ind. 
^p. 132: Smith v. Trimble, 111 Ky. 861; Ferguson o. Feixuson, (Ky.) 114 S. W. 
297: Speicher v. New York Tel. Co., 60 N. J. Law, 242, 59 N. J. Law, 23; Clark t;. 
FeUhaber, 106 Va. 803. See also Urban v, Focht, 231 Pa. St. 623. 

Invitee of licensee: see Brehmer v, Lyman, 71 Vt. 98. 

In Cox V. Coidson, [1916] 2 K. B. 177, a spectator in a theatre was injured by 
the discharge of a pistol during a performance. Bankes, L. J., said: '' It seems to 
me obvious that the duty of the mvitor in a case like the present is not only con- 
fined to the state of the premises, using that expression as extending to the struc- 
ture merely. The duty must to some extent extend to the performance given in the 
structure, because the performance may be of such a kind as to render the structure 
an unsafe place to be m whilst the performance is going on, or it may be of such a 
kind as to render the structure unsafe unless some obvious precaution is taken. As 
an illustration under the latter head I would instance a case where a tight-rope 
dancer performs on a rope stretched over the heads of the audience. In such a case 
the provision of a net imder the rope to protect the audience in case the performer 
fell seems so obvious a precaution to take that in the absence of it the premises 
could not be said to be reasonably safe. In the present case the performance was 
one which included a discharge of pistols loaded with blank ammunition as one of 
the incidents. If the pistols had been properly loaded, it is difficult to see that the 
incident exposed any member of the audience m any ordinarily constructed theatre 
to any danger. On the other hand, if any one of the pistols was not properly 
loaded, what would otherwise be a safe penormance became an exceedingly dan- 
gerous one, and a^ part of the auditorium might be rendered an extremely unsafe 
place to be in. Wnether the circumstances were such that any negligence or want 
of proper care can be attributed to the appellant in relation to the loading of the 
pistol or in relation to the anmiunition supplied for that purpose has not been 
myestigated. and I do not think that justice can be done between the parties until 
thiH is done. 



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SECT. VI.] MCNEB V. COBURN TBOLLET TRACK CO. 201 

The case was sulnmtted on briefs to all the justices. 

Allen, J. The general condition of the elevator was such that a 
jury might find that the defendant would be negligent in continuing 
its use for carrjring workmen up and down while engaged in their 
work, if this was done without warning them of the risk. It is true 
that the particular defect which caused the accident was not open to 
observation or easy to discover. But there was evidence tending to 
show that the accident was caused by the use of the elevator while it 
was in a condition which rendered it unsuitable for use, and that the 
defendant was fairly put upon inquiry as to its safety; and that the 
defendant's duty in this respect was different from and greater than 
that of the workmen themselves. 

The question then remains whether the posting of the notices in 
the elevator * showed such a performance by the defendant of its duty 
of warning or cautioning the workmen, or such contributory negli- 
gence or assumption of the risk on the part of the plaintiff, as to en- 
title the defendant to have the case withdrawn from the jury. While 
upon the evidence reported a verdict for the defendant would be more 
satisf actory^ we are unable to hold that the defendant was entitled to 
such verdict as a matter of law. As a general rule, the suflSciency of 
such warning or caution is a question of fact for the jury. Indermaur 
V. Dames, L. R. 1 C. P. 274; s. c. L. R. 2 C. P. 311. It is true that 
the plaintiff was not at liberty to shut his eyes in order to avoid read- 
ing a plain notice of warning. If it be assumed that the plaintiff must 
be held chargeable with a knowledge of the contents of the notice, 
or at least that the defendant performed its duty of cautioning the 
workmen by posting the notices in the elevator, we think the plain- 
tiff still had the right to go to the jury upon the question whether 
the notices remained in force at the time of the accident, or had be- 
come a dead letter. There was evidence tending to show that the 
notices were put in the elevator a long time before the accident by a 
former treasurer whose connection with the company had then ceased, 
that they had become soiled and somewhat indistinct and torn, and 
that all of the defendant's workmen, including the general superin- 
tendent of the building, were in the regular habit of using the elevator 
to carry them up and down, and had been so for some months prior 
to the accident. There was room for a legitimate argument that the 
defendant could net have intended to keep such a rule in force for- 
ever, and to furnish an elevator for permanent use by the men at their 
own sole risk; and that the defendant expected the men to use it while 
they were engaged in its work, and that it was for the defendant's ad- 
vantage that they should do so, from the saving of time thereby se- 
cured. It might be f oimd that the plaintiff, even if he knew of the terms 
of the notice, might nevertheless assmne that its force had ceased. 

^ These notices read as follows: '' All persons riding on this elevator do so at 
their own risk." 



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202 GARFIELD COAL CO. V. ROCKLAND LIME CO. [CHAP. H. 

If one who has posted a notice of entire prohibition permits it to be 
habitually disregarded, as, for instance, a notice not to ride on the 
platform of a street railway car, or in the baggage car of a train, a 
practical invitation to violate it may be inferred from habitual usage 
which is known to him. Long continued practice to the contrary may 
have the effect to supersede or show a waiver of the rule. O'Donnell 
V. Allegheny Valley Railroad, 59 Penn. St. 239; Pennsylvania Rail- 
road V. Langdon, 92 Penn. St. 21 ; Waterbury v. New York Central & 
Hudson River Railroad, 17 Fed. Rep. 671. The notice in the present 
case was not one of entire prohibition, but, in the opinion of a majority 
of the court, the plaintiff upon the evidence had a right to go to the 
jury upon the question whether it still remained in force; and, 
according to the terms of the report, there must be 

Judgment for the plaintiff.^ 



GARFIELD COAL CO. v. ROCKLAND LIME CO. 

Supreme Judicial Court, Massachusetts, June 23, 1903. 

Reported in 1S4 MaasajchuaeUs ReporUf 60. 

Tort, by the owner of the coal barge Western Belle, for injury to 
' that vessel by groimding on a ledge of rock embedded in the mud at 
the bottom of the defendant's dock at Rockland, Maine. 

In the Superior Court the case was tried by a judge without a jury. 

** It appeared at the trial that defendant was part owner of a dock, 
and used it for the discharge of cargoes of coal consigned to it. Plain- 
tiff had sold coal to the defendant, and sent it a barge loaded there- 
with." « 

The plaintiff requested the judge to make certain rulings, including 
the following: — 

" 4. It is not necessary for the plaintiff to show that the defendant 
knew of the ledge; it is suflScient if its existence could have been 
discovered by reasonable diligence." 

The judge refused to make any of the rulings, and found for the 
defendant. The plaintiff excepted. 

Lathrop, J. . . . The general rules of law which are applicable in 
cases of this character are the same in England and in this coimtry, 
and are the same at common law and in admiralty. They are as well 
stated in the case of Nickerson v. Tirrell, 127 Mass. 236, 239, as per- 
haps in any case: " The owner or occupant of a dock is liable in dam- 

' Craney v. Union Stockyards CJo., 240 111. 602; Kentucky Distilleries Co. v, 
Leonard, (Kv.) 79 S. W. 281 Accord. But see Burns v. Boston R. Ck)., 183 Mass. 
96; Pike v. Boston R. Co., 192 Mass. 426. 

' Statement rewritten. Only so much of the case is given as relates to a single 
point. The passage in quotation marks is taken from the report of this case in 67 
Northeastern Reporter, 863. 



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SECT. VI.] GABFIELD COAL CO. V. ROCKLAND LIME CO. 203 

ages to a person who, by his invitation express or implied, makes use 
of it, for an injury caused by any defect or unsafe condition of the 
dock which the occupant negligently causes or permits to exist, if 
such person was himself in the exercise of due care. Such occupant 
is not an insm^r of the safety of his dock,* but he is required to use 
reasonable care to keep his dock in such a state as to be reasonably 
safe for use by vessels which he invites to enter it, or for which he 
holds it out as fit and ready. If he fails to use such due care, if there 
is a defect which is known to him, or which by the use of ordinary 
care and diligence should be known to him, he is guilty of negligence 
and liable to the person who, using due care, is injured thereby. 
Wendell v. Baxter, 12 Gray, 494; Carleton v, Franconia Iron 4 Steel 
Co., 99 Mass. 216; Thompson v. Northeastern Railway, 2 B. & S. 106; 
Mersey Docks v, Gibbs, L. R. 1 H. L. 93." Other cases bearing upon 
this point are: Smith v. Burnett, 173 U. S. 430; Barber v, Abendroth, 
102N. Y. 406; Barrett v. Black, 56 Mame, 498; Sawyer v. Oakman, 
1 Lowell, 134, s. c. 7 Blatchf . 290; The John A. Berkman, 6 Fed. Rep. 
535; Pennsylvania Railroad v. Atha, 22 Fed. Rep. 920; Smith v, 
Havemeyer, 36 Fed. Rep. 927; Manhattan Transportation Co. v. 
Mayor, 37 Fed. Rep. 160; Union Ice Co. v. Crowell, 55 Fed. Rep. 87. 
The rule is the same in England. Gibbs v. Liverpool Docks, 3 H. & 
N. 164; 8. c. nom. Mersey Docks v. Gibbs, 11 H. L. Cas. 686, and 
L. R. 1 H. L. 93; The Moorcock, 13 P. D. 157, and 14 P. D. 64. 

It is clear that the vessel was in the defendant's dock on business, and 
was, therefore, there by invitation. The judge has found, and the evi- 
dence shows, that the injury was caused by a ledge of rocks embedded 
in the mud at the bottom of the dock. The questions of fact which 
he did not pass upon are whether the master was in the exercise of 
due care, and whether the defendant knew of the defect or could 
by the exercise of reasonable care and diligence have ascertained its 
existence. 

The fourth request should have been given. See cases cited above. 

Exceptions sustained^ 

1 Bell V, Central Nat. Bank, 28 App. D. C. 680; Connolly w. Des Moines Inv. 
Co., 130 la. 633; Branham v, Buckley, 158 Ky. 848; Schnatterer w. Bamberger, 81 
N. J. Lawj 558 Accord, 

* Washington Market Co. v, Clagett. 19 App. D. C. 12: Woods v. Trinity 
Parish. 21 D. C. 540; Nave v. Flack, 90 Ind. 205; Ford v, Crider, (Ky.) 74 S. W. 
661; Perrine v. Union Stockyards Co., 81 Neb. 790; Kenny v. Hall Realty Co.. 85 
Misc. 439; Glase v. City, 169 Pa. St. 488 Accord, Compare Larson v. Red River 
Transportation Co., Ill Minn. 427; Eisenberg v. Missouri R. Co., 33 Mo. App. 85; 
Henkel v. Murr, 31 Hun, 28; Alperin v, Earle, 55 Hun, 211. 



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204 INDIANAPOLIS ST. RY. CO. V. DAWSON [CHAP. H. 

INDIANAPOLIS STREET RAILWAY COMPANY v. DAWSON 

Appellate Court, Indiana, NovEBiBER 17, 1903. 

Reported in 31 Indiana Appellate Court ReportSf 605. 

From Superior Court op Marion County; Vincent G. CliflFord, 
Special Judge. 

Action by George J. Dawson against the Indianapolis Street Rail- 
way Company. From a judgment for plaintiff, defendant appeals. 

Rosy, J. Action by appellee. Verdict and judgment for $500. 
Demurrers to first and second paragraphs of complaint overruled. 
Motion for a new trial overruled. 

It is averred in the first paragraph of complaint, in substance, as 
extracted from a multitude of words, that appellant was on August 
25, 1901, a corporation operating a street railway system in Indian- 
apolis and was a common carrier for hire; that it owned a park near 
said city, and maintained certain attractions therein to induce per- 
sons to ride on its cars, inviting them to said park; that on the day 
named it gave a free band concert therein, the same having been 
extensively advertised prior thereto; that on said day appellee, ac- 
companied by a lady, took passage upon one of its regular cars, and 
was conveyed to said park; that a large nimiber of persons were daily 
transported thereto, among them a large number of lawless persons 
who were hostile to colored people, of whom appellee was one, their 
names being imknown to plaintiiOf, and who had long before said day 
entered into a conspiracy "to suppress, molest, assault, and insult 
colored people generally who might visit said park; " that in pur- 
suance of such conspiracy said persons assaulted and beat appellee, 
and drove him from the park; that he and his companion demeaned 
themselves in a ladylike and gentlemanly manner, but upon arriving 
at the park were set upon by a large number of white boys and young 
men, appellee being assaulted and beaten by them; that appellant 
had, and had had for a long time prior to said day, full notice and 
knowledge of said conditions, and of the unlawful purposes aforesaid, 
and of acts of violence committed thereunder, but took no steps to 
prevent such conduct; that early in the afternoon of said day said 
lawless men and boys began marching and drilling openly in said 
park preparatory to an attack upon any colored male person who 
should be found there later, ajppeUant taking no steps to prevent such 
conduct or to notify colored people of the danger, although it had 
knowledge thereof; that neither appellant nor its officers made any 
objection to the open and notorious gathering of white men and boys 
for the unlawful purpose stated; that it was negligent and indifferent 
in not employing and using a sufficient number of guards and police- 
men to maintain the peace; that two of its guards or policemen aided 
and abetted the wrong done appellee by standing by when he was 



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SECT. VI.] INDIANAPOUS ST. BY. CO. V. DAWSON 205 

being unmercifully beaten by said crowd of lawless white men and 
boys, and oflfering him no assistance, although they were able to do 
so, and could have prevented injury to him. "• Wherefore, by reason 
of the matters therein stated, the plaintiff has been damaged,'' etc. 
The second paragraph of complaint is somewhat more extended than 
the first one, but for the purpose of this opinion the statement made 
is sufficient. 

The pleading charges appellant with notice of the alleged conspir- 
acy, with acquiescence therein, and, by its guards or policemen, with 
passive participation in the actual assault made upon appellee. 
" When one expressly or by implication invites others to come upon his 
premises, whether for business or any other purpose, it is his duty 
to be reasonably sure that he is not inviting them into danger, and to 
that end he must exercise ordinary care and prudence to render the 
place reasonably safe for the visit.*' Cooley, Torts (2d ed.), 718; 
Howe V. Ohmart, 7 Ind. App. 32, 38; Richmond, etc., R. Co. v. Moore, 
94 Va. 493, 37 L. R. A. 258; North Manchester, et<5., Assn. v. Wilcox, 
4 Ind. App. 141; Penso v. McC!onnick, 125 Ind. 116, 21 Am. St. 
211. 

No case has been cited or found where the premises upon which the 
injury complained of occurred, and to which the ccmiplainant came by 
invitation, were made unsafe Uirough a conspiracy of the nature set up 
herein. Danger usually has been attributed to some defect in the 
premises themselves. But as a matter of principle it is quite as repre- 
hensible to invite one knowing an enemy is awaiting him with the 
intent to assault and beat him as it would be to invite him without 
having made the floor or the stairway secure. One attending an agri- 
cultural fair in response to a general invitation extended to the public 
has been awarded damages against the association where his horse 
was killed by target shooting upon a part of the ground allowed for 
such pmpose. Conradt v. Clauve, 93 Ind. 476, 47 Am. Rep. 388. 

Recoveries have also been sustained : When spectators rushed upon 
a race-track, causing a collision between horses being driven thereon. 
North Manchester, etc., Assn. v. Wilcox, 4 Ind. App. 141. When an 
opening was left in a fence surrounding a race-track through which 
one of the horses, running, went among the spectators. Windeler t^. 
Rush Coimty Fair Assn., 27 Ind. App. 92. Where horses were started 
on a race-track in opposite directions at the same time, causing colli- 
sion. Fairmount, etc., Assn. v. Downey, 146 Ind. 503. Where a horse 
with a vicious habit of track bolting was permitted to run in a race, 
such horse bolting the track, causing injury. Lane v. Minnesota, etc., 
Soc., 62 Minn. 175, 29 L. R. A. 708. Recognizing the rule of reason- 
able care to make the premises safe, a recovery was denied in the 
absence of any evidence of the immediate cause of a horse running 
throu^ the crowds. Hart v, Washington Park Club, 157 111. 9, 29 
L. R. A. 492. Where a street car company maintained a park as a 



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206 INDIANAPOLIS ST. BY. CO. V. DAWSON [CHAP. H. 

place of attraction for passengers over its line, the falling of a pole 
used by one making a balloon ascension, under a contract, injuring a 
bystander, recovery was allowed, the rule being announced that the 
company must use proper care to protect its patrons from danger 
while on its grounds. Richmond, etc., R. Co. v. Moore, 94 Va. 493, 
37 L. R. A. 258. Where a street car company maintained a large 
stage for exhibitions, in a pleasiu^ resort owned by it, and made a 
written contract with a manager, by which the latter furnished vari- 
ous entertainments, among which was target shooting, one injured 
by a split bullet was allowed to recover, it being held that he might 
safely rely on those who provided the exhibition and invited his 
attendance to take due care to make the place safe from such injury 
as he received, the question of due care being one for the jury. Thomp- 
son V. Lowell, etc., St. R. Co., 170 Mass. 577, 40 L. R. A. 345; Curtis 
V. Kiley, 153 Mass. 123. 

The duty of common carriers to protect their passengers from in- 
jury on account of imlawful violence by persons not connected with 
their service has frequently furnished material for judicial considera- 
tion. The New Jersey -Court of Errors and Appeals approved an ex- 
haustive and carefully considered opinion delivered by the Supreme 
Court of that State to the effect that a passenger who, while attempt- 
ing to have her baggage checked, was knocked down and injured by 
cabmen, in no sense servants of the carrier, scufiSing on a passage- 
way under its control, might recover against it. Exton v. Central R. 
Co., 63 N. J. L. 356, 56 L. R. A. 508. In what seems to have been a 
pioneer case, it was held by the Supreme Court of Pennsylvania in 
1866, that it was the duty of the trainmen on a passenger-train to 
exert the forces at their disposal to prevent injmy to passengers by 
others fighting in the car. Pittsburgh, etc., R. Co. v. Hinds, 53 Pa. 
St. 512. Ten years later the Supreme Court of Mississippi, after very 
exhaustive arguments by eminent counsel of national reputation, 
reached the same conclusion. New Orleans, etc., R. Co. v. Burke, 53 
Miss. 200. 

Without further elaboration it may safely be said that the unusual 
character of an alleged peril, from which it is averred the appellant 
did not use due care to protect its visitors, does not affect the right of 
recovery, it being otherwise justified. The demurrers were therefore 
correctly overruled. 

Evidence was introduced of other prior assaults at said park upon 
colored persons, and articles previously published by daily news- 
papers in the city describing such occurrences were also admitted. 
In order to determine whether appellant used due care, it was essential 
to show its knowledge or means of information relative to the condi- 
tions alleged to exist, rendering it dangerous for appellee to visit the 
park. The evidence of similar occurrences was competent as tending 
to show notice of the conditions. Toledo, etc., R. Co. y. MiUigan, 2 



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SECT. VI.] SWEENY V. OLD COLONY RAILROAD CO. 207 

Ind. App. 578; City of Delphi v. Lowery, 74 Ind. 520, 39 Am. Rep. 
98; aty of Goshen v. En^d, 119 Ind. 368, 375. 

The facts upon which appellant's liability depends otherwise than 
heretofore considered were questions for the determination of the 
jury. There was evidence tending to establish, and from which the 
jury might properly find, the existence of such facts. 

Appellant and its officers appear to have displayed indifference to 
the conditions existing which it and they could not well help know- 
ing. This may have been due to the idea, sometimes entertained, that 
as to acts of lawlessness it is a sufficient duty of citizenship to be 
indifferent. Such idea is entirely erroneous. Judgment affirmed.^ 



SWEENY V. OLD COLONY RAILROAD COMPANY 

SuPREBiE Judicial Court, Massachusetts, January Term, 1865. 

Reported in 10 AUen, 368. 

Tort to recover damages for a personal injury sustained by being 
run over by the defendants' cars, while the plaintiff was crossing their 
railroad by license, on a private way leading from South Street to 
Federal Street, in Boston. 

At the trial in this Court, before Chapman, J., it appeared that this 
private way, which is called Lehigh Street, was made by the South 
Cove Corporation for their own benefit, and that they own the fee of 
it; that it is wrought as a way, and buildings are erected on each side 
of it, belonging to the owners of the way, and there has been much 
crossing there by the public for several years. The defendants, having 
rightfully taken the land under their charter, not subject to any right 
of way, made a convenient plank-crossing and kept a flagman at the 
end of it on South Street, partly to protect their own property, and 
partly to protect the public. They have never made any objection to 
such crossing, so far as it did not interfere with their cars and engines. 
There are several tracks at the crossing. The only right of the public 
to use the crossing is imder the license implied by the facts stated 
above. 

On the day of the accident, the defendants had a car at their depot 
which they^ had occasion to run over to their car house. It was at- 
tached to an engine and taken over the crossing, and to a proper dis- 
tance beyond the switch. The coupling-pin was then taken out, the 
engine reversed, and it was moved towards the car house by the side 
track. The engine was provided with a good engineer and fireman, 
and the car with a brakeman; the bell was constantly rung, and the 

* Moone v. Smith, 6 Ga. App. 649; Mastad v. Swedish Brethren, 83 Minn. 40; 
Rommel v. Schambacher, 120 Pa. St. 679 Accord, 

But compare Woolworth v, Omboy, 170 Fed. 934; Lord v. Sherer Co., 205 
Maas. 1. 



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208 SWEENY V. OLD COLONY RAILROAD CO. [CHAP. H. 

defendants were not guilty of any negligence in respect to the manage- 
ment of the car or engine. 

As the engine and car were coming from the depot, the plaintiff, 
with a horse and a wagon loaded with empty beer barrels, was coming 
down South Street from the same direction. There was evidence tend- 
ing to show that, as he approached the crossing, the flagman, who was 
at his post, made a signal to him with his flag to stop, which he did; 
that, in answer to an inquiry by the plaintiff whether he could then 
cross, he then made another signal with his flag, indicating that it was 
safe to cross; that the plaintiff started and attempted to cross, looking 
straight forward; that he saw the car coming near him as it went 
towards the car house; and that he jumped forward from his wagon, 
and the car knocked him down and ran over him and broke both his 
legs. It struck the fore-wheel of his wagon and also his horse. If he 
had remained in his wagon, or had not jumped forwards, or had kept 
about the middle of the crossing, the evidence showed that he would 
not have been injured personally. His wagon was near the left-hand 
side of the plank-crossing as he went. 

The defendants contended that, even if the plaintiff used ordinary 
care, and if the flagman carelessly and negligently gave the signal that 
he might cross, when in fact it was unsafe to do so on accoimt of the 
approaching car, the plaintiff was not entitled to recover, because the 
license to people to use the crossing was not a license to use it at 
the risk of the defendants, but to use it as they best could when not 
forbidden, taking care of their own safety, and going at their own risk; 
and also, that if the flagman made a signal to the plaintiff that he 
might cross, he exceeded his authority. 

But the evidence being very contradictory as to the care used by the 
plaintiff, and also as to the care used by the flagman, the judge ruled, 
for the purpose of taking a verdict upon these two facts, that the de- 
fendants had a right to use the crossing as they did on this occasion, 
and that they were not bound to keep a flagman there; yet, since they 
did habitually keep one there, they would be responsible to the plain- 
tiff for the injury done to him by the car, provided he used due care, 
if he was induced to cross by the signal made to him by the flagman, 
and if that signal was carelessly or negligently made at a time when 
it was unsafe to cross on account of the movement of the car. 

The jmy returned a verdict for the plaintiff for $7500; asnd the case 
was reserved for the consideration of the whole Court. , 

J. G. Abbott and P. H. Sears, for the defendants. The defendants 
had, for all purposes incident to the complete enjoyment of their fran- 
chise, the right of exclusive possession and use of the place where the 
accident happened, against the owners of the fee, and still more against 
all other persons. Hazen v, Boston & Maine Railroad, 2 Gray, 574; 
Brainard v. Clapp, 10 Cush. 6; Gen. Stat. c. 63, §§ 102, 103. The 
defendants were not boimd to keep a flagman there, or exercise the 



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SECT. VI.] SWEENY V. OLD COLONY RAILROAD CO. 209 

other precautions prescribed for the crossing of highways or travefled 
places. Gen. Stat. c. 63, §§ 64-66, 83-91 ; Boston & Worcester Rail- 
road V, Old Colony Raifroad, 12 Cnsh. 608. The license or permis- 
sion, if any, to the plaintiff to pass over the premises did not impose 
any duty on the defendants, but he took the permission, with its con- 
comitant perils, at his own risk. Rowland v, Vincent, 10 Met. 371, 
374; Scott v, London Docks Co., 11 Law Times (n. s.), 383; Chap- 
man V. Rothwell, El. Bl. 4 El. 168; Southcote v. Stanley, 1 Hurlst. 

6 Norm. 247; Hounsell v. Smyth, 7 C. B. (n. s.) 729, 735, 742; Binks 
V. South Yorkshire Railway, Ac, 32 Law Joum. (n. s.) Q. B. 26; 
Blithe V. Topham, 1 Rol. Ab. 88; s. c. 1 Vm. Ab. 665, pi. 4; Cro. Jac. 
158. The defendants did not hold out to the plaintiff an invitation 
to pass over. Hounsell v, Smyth and Binks v. South Yorkshire Rail- 
way, above cited. The allowing or making of such private crossing 
was not in itself such an invitation, and did not involve the duty of 
such precautions. The keeping of a flagman there was wholly for the 
purpose of preventing persons from crossing, not for the purpose of 
holding out invitations at any time. The signal that the plaintiff 
might cross was in answer to his inquiry, and was, at most, only re- 
voking the prohibition, or granting permission; it was not holding out 
an invitation. The duty of the flagman was simply to warn persons 
against crossing; and if the flagman held out an invitation or even 
gave permission to the plaintiff to cross, he went beyond the scope of 
his employment, and the defendants are not liable on account thereof. 
Lygo V. Newbold, 9 Exch. 203 ; Middleton v. Fowle, 1 Salk. 282. Even 
if the defendants had carelessly held out an invitation to the plaintiff 
to cross, still they would not be liable; for the report shows that after 
such supposed invitation the plaintiff might, by the exercise of ordi- 
nary care, have avoided the injury; that the plaintiff was himself at 
the time in the wrong; and that his own negligence and fault con- 
tributed to the accident. Todd v. Old Colony & Fall River Railroad, 

7 Allen, 207; a. c. 3 Allen, 18, and cases cited; Denny v. Williams, 5 
Allen, 1, and cases cited; Spofford v, Harlow, 3 Allen, 177, and cases 
cited. 

BiGBLOW, C. J. This case has been presented with great care on 
the part of the learned counsel for the defendants, who have produced 
before us all the leading authorities bearing on the question of law 
which was reserved at the trial. We have not found it easy to decide 
on which side of the line which marks the limit of the defendant's 
liability for damages caused by the acts of their agents, the case at bar 
falls. But on careful consideration we have been brought to the con- 
clusion that the rulings at the trial were right, and that we cannot set 
aside the verdict for the plaintiff on the ground that it was based on 
erroneous instructions in matter of law. 

In order to maintain an action for an injury to person or property by 
reason of negligence or want of due care, there must be shown to exist 



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210 SWEENY V. OLD COLONY RAILROAD CO. [CHAP. H, 

some obligation or duty towards the plaintiff, which the defendant has 
left undischarged or unfulfilled. This is the basis on which the cause 
of action rests. There can be no fault, or negligence, or breach of 
duty, where there is no act, or service, or contract, which a party is 
bound to perform or fulfil. All the cases in the books, in which a party 
is sought to be charged on the ground that he has caused a way or 
other place to be incumbered or suffered it to be in a dangerous condi- 
tion, whereby accident and injury have been occasioned to another, 
turn on the principle that negligence consists in doing or omitting to 
do an act by which a legal duty or obligation has been violated. Thus 
a trespasser who comes on the land of another without right cannot 
maintain an action, if he runs against a barrier or falls into an ex- 
cavation there situated. The owner of the land is not boimd to pro- 
tect or provide safeguards for wrongdoers. So a licensee, who enters 
on premises by permission only, without an enticement, allurement, 
or inducement being held out to him by the owner or occupant, can- 
not recover damages for injuries caused by obstructions or pitfalls. 
He goes there at his own risk, and enjoys the license subject to its con- 
comitant perils. No duty is imposed by law on the owner or occupant 
to keep his premises in a suitable condition for those who come there 
solely for their own convenience or pleasure, and who are not either 
expressly invited to enter or induced to come upon them by the pur- 
pose for which the premises are appropriated and occupied, or by some 
preparation or adaptation of the place for use by customers or passen- 
gers, which might naturally and reasonably lead them to suppose that 
they might properly and safely enter thereon. 

On the other hand, there are cases where houses or lands are so situ- 
ated, or their mode of occupation and use is such, that the owner or 
occupant is not absolved from all care for the safety of those who come 
on the premises, but where the law imposes on him an obligation or 
duty to provide for their security against accident and injury. Thus 
the keeper of a shop or store is bound to provide means of safe ingress 
and egress to and from his premises for those having occasion to enter 
thereon, and is liable in damages for any injury which may happen by 
reason of any negUgence in the mode of constructing or managing the 
place of entrance and exit. So the keeper of an inn or other place of 
public resort would be liable to an action in favor of a person who 
suffered an injury in consequence of an obstruction or defect in the 
way or passage which was held out and used as the common and proper 
place of access to the premises. The general rule or principle applica- 
ble to this class of cases is, that an owner or occupant is bound to keep 
his premises in a safe and suitable condition for those who come upon 
and pass over them, using due care, if he has held out any invitation, 
allurement, or inducement, either express or imphed, by which they 
have been led to enter thereon. A mere naked license or permission 
to enter or pass over an estate will not create a duty or impose an obli- 



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SECT. VI.] SWEENY V. OLD COLONY RAILROAD CO. 211 

gation on the part of the owner or person in possession to provide 
against the danger of accident. The gist of the liability consists in 
the fact that the person injured did not act merely for his own con- 
venience and pleasure, and from motives to which no act or sign of 
the owner or occupant contributed, but that he entered the premises 
because he was led to beUeve that they were intended to be used by 
visitors or passengers, and that such use was not only acquiesced in 
by the owner or person in possession and control of the premises, but 
that it was in accordance with the intention and design with which the 
way or place was adapted and prepared or allowed to be so used. The 
true distinction is this: A mere passive acquiescence by an owner or 
occupier in a certain use of his land by others involves no liability; 
but if he directly or by impUcation induces persons to enter on and 
pass over his premises, he thereby assumes an obligation that they are 
in a safe condition, suitable for such use, and for a breach of this 
obligation he is liable in damages to a person injiu'ed thereby. 

This distinction is fully recognized in the most recent and best con- 
sidered cases in the English Courts, and may be deemed to be ^the 
pivot on which all cases like the one at bar are made to turn. In Corby 
t;. Hill, 4 C. B. (n. s.) 656, the owner of land, having a private road 
for the use of persons coming to his house, gave permission to a builder 
engaged in erecting a house on the land to place materiab on the road; 
the plaintiff, having occasion to use the road for the purpose of going 
to the owner's residence, ran against the materials and sustained dam- 
age, for which the owner was held Uable. Cockbum, C. J., says: " The 
proprietors of the soil held out an allurement whereby the plaintiff was 
induced to come on the place in question ; they held this road out to all 
persons having occasion to proceed to the house as the means of access 
thereto." In Chapman v. Rothwell, El. Bl. A El. 168, the proprietor 
of a brewery was held liable in damages for injury and loss of life 
caused by permitting a trap-door to be open without sufficient light or 
proper saf^uards, in a passageway through which access was had 
from the street to his office. This decision was put on the ground that 
the defendant, by holding out the passageway as the proper mode of 
approach to his office and brewery, invited the party injured to go 
there, and was boimd to use due care in providing for his safety. This 
is the point on which the decision turned, as stated by Keating, J., in 
Hounsell v. Smyth, 7 C. B. (n. s.) 738. In the last-named case the 
distinction is clearly drawn between the liability of a person who holds 
out an inducement or invitation to others to enter on his premises by 
preparing a way or path by means of which they can gain access to his 
house or store, or pass into or over the land, and in a case where noth- 
ing is shown but a bare license or permission tacitly given to go upon 
or through an estate, and the responsibility of finding a safe and secure 
passage is thrown on the passenger and not on the owner. The same 
distinction is stated in Barnes v. Ward, 9 C. B. 392; Hardcastle v. 



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212 SWEENY V. OLD COLONY RAILROAD CO. [CHAP. U. 

South Yorkshire Railway, &c., 4 Hurlst. & Norm. 67; and Binks v. 
South Yorkshu^ Railway, &c., 32 Law Joum. (n. s.) Q. B. 26. In 
the last cited case the language of Blackburn, J., is peculiarly ap- 
pUcable to the case at bar. He says, " There might be a case where 
permission to use land as a path may amount to such an induce- 
ment as to lead the persons using it to suppose it a highway, and 
thus induce them to use it as such." See also, for a clear statement 
of the difference between cases where an invitation or allurement is 
held out by the defendant, and those where nothing appears but a 
mere license or permission to enter on premises, Bolch v. Smith, 7 
Hurlst. & Norm. 741, and Scott v. London Docks Co., 11 Law Times 
(n. s.), 383. 

The facts disclosed at the trial of the case now before us, carefully 
weighed and considered, bring it within that class in which parties 
have been held liable in damages by reason of having held out an invi- 
tation or inducement to persons to enter upon and pass over their 
premises. It cannot in any just view of the evidence be said that the 
defendants were passive only, and gave merely a tacit Ucense or assent 
to the use of the place in question as a public crossing. On the con- 
trary, the place or crossing was situated between two streets of the city 
(which are much frequented thoroughfares), and was used by great 
numbers of people who had occasion to pass from one street to the 
other, and it was fitted and prepared by the defendants with a con- 
venient plank-crossing, such as is usually constructed in highwayB, 
where they are crossed by the tracks of a railroad, in order to facilitate 
the passage of animals and vehicles over the rails. It had been so 
maintained by the defendants for a number of years. These facts 
would seem to bring the case within the principle already stated, that 
the license to use the crossing had been used and enjoyed under such 
circumstances as to amount to an inducement, held out by the defend- 
ants to persons having occasion to pass, to believe that it was a high- 
way, and to use it as such. But the case does not rest on these facts 
only. The defendants had not only constructed and fitted the crossing 
in the same manner as if it had been a highway, but they had employed 
a person to stand there with a flag, and to warn persons who were 
about to pass over the railroad when it was safe for them to attempt to 
cross with the vehicles and animals, without interference or collision 
with the engines and cars of the defendants. And it was also shown 
that when the plaintiff started to go over the tracks with his wagon, it 
was in obedience to a signal from this agent of the defendants that 
there was no obstruction or hindrance to his safe passage over the 
railroad. These facts well warranted the jury in finding, as they must 
have done in rendering a verdict for the plaintiff imder the instruc- 
tions of the Coiut, that the defendants induced the plaintiff to cross 
at the time when he attempted to do so, and met with the injury for 
which he now seeks compensation. 



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SECT. VI.] SWEENY V. OLD COLONY RAILROAD CO. 213 

It was suggested that the person employed by the defendants to 
stand near the crossing with a flag exee^ed his authority in giving a 
signal to the plaintiff that it wqs safe for him to pass over the crossing 
just previously to the accident, and that no such act was within the 
scope of his employment, which was limited to the duty of preventing 
persons from passing at times when it was dangerous to do so. But it 
seems to us that this is a refinement and distinction which the facts do 
not justify. It is stated in the report that the flagman was stationed 
at the place in question, charged among other things with the duty of 
protecting the public. This general statement of the object for which 
the agent was employed, taken in connection with the fact that he was 
stationed at a place constructed and used as a public way by great 
numbers of people, clearly included the duty of indicating to persons 
when it was safe for them to pass, as well as when it was prudent or 
necessary for them to refrain from passing. 

Nor do we think it can be justly said that the flagman in fact held 
out no inducement to the plaintiff to pass. No express invitation need 
have been shown. It would have been only necessary for the plaintiff 
to prove that the agent did some act to indicate that there was no risk 
of accident in attempting to pass over the crossing. The evidence at 
the trial was clearly suflBicient to show that the agent of the defendants 
induced the plaintiff to pass, and that he acted in so doing within 
the scope of the authority conferred on him. The question whether the 
plaintiff was so induced was distinctly submitted to the jury by the 
Court; nor do we see any reason for supposing that the instructions 
on this point were misunderstood or misapplied by the jiuy. If they 
lacked fulness, the defendants should have asked for more explicif in- 
structions. Certainly the evidence as reported well warranted the 
finding of the jiuy on this point. 

It was also urged that, if the defendants were held liable in this 
action, they would be made to suffer by reason of the fact that they 
had taken precautions to guard against accident at the place in ques- 
tion, which they were not bound to use, and that the case would pre- 
sent the singular aspect of holding a party liable for neglect in the 
performance of a duty voluntarily assumed, and which was not im- 
posed by the rules of law. But this is by no means an anomaly. If 
a person undertakes to do an act or discharge a duty by which the 
conduct of others may properly be regulated and governed, he is bound 
to perform it in such manner that those who rightfully are led to a 
course of conduct or action on the faith that the act or duty will be 
duly and properly performed shall not suffer loss or injury by reason 
of his negligence. The liability in such cases does not depend on the 
motives or considerations which induced a party to take on himself a 
particular task or duty, but on the question whether the legal rights 
of others have been violated by the mode in which the charge assumed 
has been performed. 



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214 STEVENS V. NICHOLS [CHAP. H. 

The Court were not requested at the trial to withdraw the case from 
the jury on the ground that the plaintiff had failed to show he was in 
the exercise of due care at the time the accident happened. Upon the 
evidence, as stated in the report, we cannot say, as matter of law, that 
the plaintiff did not establish this part of his case. 

Jiidgment on the verdict. 

After the above decision was rendered, the verdict was set aside, by 
Chapman, J., as against the evidence.^ 



STEVENS V. NICHOLS 

SxTPREMB Judicial Court, Massachusetts, Febbuabt 23, 1892. 

Reported in 155 Maadochuaetia ReparUy 472. 

Tort, to recover for injuries occasioned to the plaintiff by driving 
over a curbstone covered with snow in a private way controlled by the 
defendants. At the trial in the Superior Court, Mason, C. J., at the 
defendants' request, ruled that, upon the pleadings and the plaintiff's 
opening, he could not maintain the action, and prdered a verdict for 
the defendants; and the plaintiff alleged exceptions. The facts, so 
far as material to the points decided, appear in the opinion. 

John L. Thomdik€f for the defendants.* 

This case bears no resemblance to Holmes v. Drew, 161 Mass. 678, 
where the defendant had constructed a brick sidewalk by the side of a 
public street, partly on her own land and partly in the street, without 
any^ line of separation, and so that the whole was apparently part of 
the street, and the defendant clearly intended that it should be used 

^ Jones V. New York R. Co., 211 Mass. 521 ; De Boer v, Brooklyn Wharf Co., 61 
App. Div. 289 Accord. Compare Hillman v. Boston R. Co., 207 Mass. 478. 

This case is often cited as tnough it decided that the defendant was liable to the 
plaintiff for harm suffered by the plaintiff on account of a defect in the premises; 
€. g.f defective planks on the crossing. For a more correct view of the real question 
involved see the able argument of Mr. Thomdike in Stevens v. Nichols, post, 

lAahUiiy of owner or occupier of a place manifestly intended for public or general 
use: see Ciogan v. Schiele. 53 Conn. 186; Howe v. Ohmart, 7 Ind. App. 32; Davis 
V. Central Congregational Society, 129 Mass. 367; Hohnes v. Drew, 151 Mass. 
578; Gordon v. Cummings, 152 Nlass. 513: Kelly v. Southern R. Co.. 28 Minn. 98; 
Marsh v. Minneapolis Brewing Co., 92 Mmn. 182; Rachmel v. Clark, 206 Pa. St. 
314. 

LdabUity of owner or occupier who passively acquiesces in use by others: see White 
V. France, 2 C. P. D. 308; Alabama R. Co. v. Godfrey, 156 Ala. 202; Herzog v. 
Hemphill, 7 Cal. App. 116; Pastorello v. Stone, 89 Conn. 286: Etheredge v. Cen- 
tral R. Co., 122 Ga. 863; Nave v. Flack, 90 Ind. 205; EvansviUe R. Co. v. Griffin, 
100 Ind. 221; Martin v. Louisville Bridge Co., 41 Ind. App. 493: Zoebisch v. Tar- 
bell, 10 Allen, 385; Bowler v. Pacific Mills, 200 Mass. 364; Habina v. Twin City 
Electric Co., 150 Mich. 41; Moore v. Wabash R. Co., 84 Mo. 481, 488; KeUy ». 
Benas, 217 Mo. 1; Barry v. Calvary Cemetery Assn., 106 Mo: App. 358; Walsh 
V. Fitchburg R. Co.. 146 N. Y. 301; Fox v. Warner Asphalt Co., 204 N. Y. 340: 
Monroe v. Atlantic R. Co., 151 N. C. 374; Phillips v. Orr, 152 N. C. 583; Raihoad 
Co. V. Harvey, 77 Ohio St. 235; Breckenridge v. Bennett, 7 Kulp (Pa.) 95. 

* The report in 155 Mass. 472 does not give any portion of the arguments. The 
following passages are extracts from the printed brief for the defendants. 



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SECrr. VI.] STEVENS V. NICHOLS 215 

as part of the street. There is no similarity between such an addition 
to the apparent width of a public street and the opening of a private 
avenue or way out of a public street. The private way could not have 
been, or intended to be, part of the public street, and the separation 
between them was plain. . . . 

The absence of similarity between this case and Holmes v. Drew, 
151 Mass. 578, has already been pointed out; but it is also submitted 
that that case is the first in which it has ever been held that the owner 
of land was under any obligation to make it safe for a person that was 
allowed to come upon the land for his own convenience, and for a pur- 
pose in which the owner had no interest, whether the owner gave his 
consent in the form of a permission or in the form of what might, in 
common language, be called an invitation. Such persons were called 
Ucensees, and must take the land as they foimd it, subject only to this, 
that the owner must not lead them into danger by " something like 
fraud." Gautret t;. Egerton, L. R. 2 C. P. 371, 374^75; Reardon v. 
Thompson, 149 Mass. 267, 268; Pollock on Torts, 424-426. . • . 

But as regards persons coming upon land at the request, actual or 
tacit, of the owner upon business or for a purpose in which the owner 
had an interest, it was his duty to make it reasonably safe, and he was 
liable for damages arising from a neglect of this duty. Indemtaur v. 
Dames, L. R. 1 C. P. 274, 2 C. P. 311; Carleton v. Franconia Iron & 
Steel Co., 99 Mass. 216 (rock by wharf at which vessel imloaded); 
The Moorcock, 14 P. D. 64 (a similar case) ; Davis v. Central Congre- 
gational Society, 129 Mass. 367 (plaintiff attending a conference of 
churches at defendant's meeting-house, an object in which both parties 
had an interest; abo, p. 371, " a dangerous place without warning "); 
Pollock on Torts, 415-418. 

It is this common interesty not the form of the Ucense or invitation, 
that creates the liability (Holmes v. North Eastern Ry. Co., L. R. 
4 Ex. 254, 6 Ex. 123). 

The distinction between these two classes of cases is that in one the 
owner of the land has an interest in the person's coming there, while 
in the other the authority to come upon the land is a pure gratuity. 
It is reasonable that the owner should undertake some duty in respect 
of the condition of the land when he brings another person there for 
an object in which he himself has an interest. But there is no reason 
why he should imdertake any such duty when he makes a gift of the 
privilege of going upon his land. The privilege is only a gift, whether 
the owner gives it because it is asked for, or whether he offers it first, 
or asks or " invites " the other to accept it. It may in a sense be said 
that a person is " induced '* to go upon land by a hcense or permisson 
of the owner, but the real inducement is his own convenience. When 
the owner asks him to walk over his land whenever it is agreeable to 
him, and he goes there, he does so because it is agreeable to him, and 
not because the owner asks him. He is in law a licensee going upon the 



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216 STEVENS V. NICHOLS [CHAP. II. 

land for his own convenience by the owner's penniasion, and not a per- 
son brought there for a purpose in which the owner has an interest.^ 

LdcenseeSf however, have a right to expect that the owner will not 
create a new danger while the license continues, and he is liable for 
the consequences if he does create such a danger; e. g., by making an 
excavation near a path, as in OUver v, Worcester, 102 Mass. 489, 502, 
or by placing an obstruction in an avenue, as in Corby t;. Hill, 4 C. B. 
N. s. 556, 567, or by carelessly throwing a keg into a passageway, as 
in Corrigan v. Union Sugar Refinery, 98 Mass. 577, or by negligent 
management of trains at a private crossing of a railway habitually 
used by the pubUc with the assent of the company, as in Sweeny v. 
Old Colony RW. Co., 10 Allen, 368; Murphy v. Boston & Albany Rid. 
Co., 133 Mass. 121; Hanks v. Boston & Albany Rid. Co., 147 Mass. 
495; Byrne v. New York Central Rid. Co., 104 N. Y. 362; Swift v. 
Staten Island Rid. Co., 123 N. Y. 645; Taylor v. Delaware & Hudson 
Canal Co., 113 Pa. St. 162, 175. 

The principle of these cases is stated by Willes, J., in Gautret v, 
Egerton, L. R. 2 C. P., p. 373, as follows: " If I dedicate a way to the 
public which is full of ruts and holes, the pubUc must take it as it is. 
If I dig a pit in it, I may be Uable for the consequences;^ but; if I do 
nothing, I am not." 

The same principle is alluded to in June v. Boston & Albany Rid. 
Co., 153 Mass. p. 82, where the court speaks of " cases in which even 
unintended damage done to a licensee by actively bringing force to 
bear upon his person will stand differently from merely passively 
leaving land in a dangerous condition." 

» Smith V, London Docks Co., L. R. 3 C. P. 326; Holmes v. Northeastern R. Co., 
L. R. 4 Ex. 254, L. R. 6 Ex. 123: Wright v. London R. Co., L. R. 10 0. B. 298, 
1 Q. B. D. 252; Berlin Mills v. Croteau, (C. C. A.) 88 Fed. 860; Smith v. Day, 
(C. C. A.) 100 Fed. 244; Currier v. Trustees, (C. C. A.) 117 Fed. 44; Rhode v. 
Duff, (C. C. A.) 208 Fed. 115; Middleton v. Ross, (C. C. A.) 213 Fed. 6; Ala- 
bama R. Co. v. Godfrey, 156 Ala. 202; Schmidt v. Bauer. 80 Cal. 565; Herzog v. 
Hemphill, 7 Cal. App. 116; Pauckner v. Wakem. 231 111. 276: Franey v. Umon 
Stockyards Co^ 235 El. 622, 138 111. App. 215; PurteU v. Coal Co., 256 Dl. 110; 
Northwestern R. Co. v, O'Malley, 107 111. App. 699; Deach v, Woohier, 187 111. 
App. 524; Fans v, Hoberg, 134 Ind. 269; Baltunore R. Co. v. Slaughter, 167 Ind. 
330; Thiele v. McManus, 3 Ind. App. 132: Wihnes v. Chicago R. Co., 175 la. 
101; Lackat v. Lutz, 94 Ky.287; Smith v. Trimble, 111 Ky. 861; Kentucky Dis- 
tilleries Co. V. Leonard, (Ky.) 79 S. W. 281; Bell v. Houston R. Co., 132 La. 88; 
Dixon V. Swift, 98 Me. 207; Patten v. Bartlett, 111 Me. 409; Elie v. Lewiston R. 
Co., 112 Me. 178; Plummer v. Dill, 156 Mass. 426; Gauley v. Hall, 168 Mass. 513; 
Cowen V. Kirby, 180 Mass. 504; Norris v. Nawn Contracting Co., 206 Mass. 58; 
Lepnick v. Gaddis, 72 Miss. 200; Glaser v, Rothschild, 221 Mo. 180; Davis v. 
Ringolsky, 143 Mo. App. 364; Bryant v, Missouri R. Co., 181 Mo. App. 189; 
True V. Meredith Creamery, 72 N. H. 164; Flanagan v. Atlantic Asphalt Co.. 37 
App. Div. 476; Buchtel College v. Martin, 25 Ohio Cir. Ct. R. 494: Smith v. 
Sunday Creek Co., 74 W. Va. 606; Ross v. Kanawha R. Co., 76 W. Va. 197; 
Hupfer V. National Distilling Co., 114 Wis. 279; Muench v. Heinemann. 119 Wis. 
441 Accord. See also Blossom v. Poteet, 104 Tex. 230 (wife bringing husband's 
dinner to mill where he was employed); Southwestern Cement Co. v. Bustillos, 
(Tex. Civ. App.) 169 S. W. 638 (child bringing lunch to employee). 

But compare Mandeville Mills w. Dale, 2 Ga. App. 607; Furey v. New York 
Central R. Co., 67 N. J. Law, 270; Gorr v, Mittlestaedt, 96 Wis. 296. 



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SECrr. VI.] STEVENS V. NICHOLS 217 

The cases above mentioned include all that are cited in Hofanes v. 
Drew, 151 Mass. 580. In none of them is it held or suggested that 
the railway company was liable for any defect or obstruction in the 
crossing, or that the landowner was liable for any excavation or ob- 
struction existing when the permission was granted. 

[After citing cases where the court said that eame kind of induce- 
ment or invitation was necessary to create a liability for want of care 
in running trains.] But it was not suggested that the induo^nent or 
invitation would create any liability for defects in the crossing itself 
which the company gratuitoudy allowed the public to use. 

[Referring to cases where there is implied license to the public to 
use a crossing.] The probability known to the company that some 
one may be there in pursuance of the license is treated ... as the 
groimd of liability in such cases for want of care in running trains. 
. . . But there is nothing in any of the eases above mentioned tend- 
ing to support the proposition that the knowledge of the habituid use 
of the crossing, pursuant to the implied permission, would create a 
liability for defects in the crossing itself or impose any kind of duty 
to make it safe or convenient. 

Holmes v. Drew (151 Mass. 578) does not belong to eiUier of the 
two last classes of cases. The plaintiff (1) did not go there upon the 
defendant's land for any purpose in which the defendant was inter- 
ested, and (2) the defendant did nothing to make the place less safe 
than it was when it was first opened to the public. The plaintiff was 
a volimteer, going upon the defendant's land with her full permission, 
but entirely for his own convenience. These distinctions do not ap- 
pear to have been called to the attention of the court. The judgment, 
which is very short, seems to proceed upon the ground that the de- 
fendant, by paving a footway partly on her own land and allowing it 
to remain apparently a part of the street, showed an intention that it 
should be used by foot passengers, and that this would amount to an 
implied invitation, which imposed on her a duty to make it reasonably 
safe. If this is to be taken literally, a permission ceases to be a 
license if it is intended that it shall be used; and an invitation imposes 
the same duty when it is given gratuitously for the pleasure of the 
donee as when it is given for an object in which the giver has an in- 
terest; and the owner of land that gives permission to cross his land 
can escape liability only by proving that he did not intend the per- 
mission to be used. It is submitted that the authorities cited in that 
case do not support this doctrine. Two of them are cases where the 
invitation was to come upon the land for a purpose in which the owner 
had an interest, and in the three others a licensee was injured by 
n^ligence in something done after the license was given. . . . 

Lathrop, J. The declaration in this case, so far as material to the 
questions presented at the argument, alleged that the defendants on 



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218 STEVENS V. NICHOLS [CHAP. n. 

the day of the accident were, and had been for a long time, lessees and 
occupants of an estate on Atlantic Avenue in Boston; that the de- 
fendants maintained a way or street down by their premises, " leading 
out of said Atlantic Avenue, and extending to other premises beyond; 
that said street was in all particulars like the pubUc streets of the city 
of Boston, being paved with granite blocks, and having sidewalks, and 
to all appearances was a public thoroughfare; that the defendants had 
placed no sign or notice of any kind upon or about said street . . . 
which would give warning to the plaintiff or to the public that said 
street was private property, or dangerous, but had erected a granite 
curbing out into said street, extending one half the distance across the 
same, on a line with the rear of their estate, said granite curbing being 
from six to seven inches above the grade of the paving; that said ob- 
struction was dangerous both by day and by night to all persons who 
entered upon or passed through said street; that on or about said day 
the plaintiff had business that called him to the premises that Ue be- 
yond the estate of the defendants on said street, and, supposing and 
assuming that said street was a highway, and being induced by the 
acts and omissions of these defendants to so suppose and assume, 
entered in and upon said street to drive through the same; that said 
obstruction was covered by snow at said time, and plaintiff was unable 
to see the same; and, while in the exercise of due care, his sleigh 
struck said granite curbing," and he was thrown out and injured. 

The opening of the plaintiff's counsel added but little to the decla- 
ration. It stated that " the snow lay perfectly level " where the curb- 
stone was; that the plaintiff was driving through the defendants* way 
" into the way lying beyond, of which it was ... an extension," to 
reach the works of the company for which he was working. It also 
stated that, before the defendants controlled the way under the writ- 
ten lease, they owned the premises, erected the building, paved the 
way, and put in the curbstone; " that ever since this building and 
other buildings had been erected down there the public made use of 
that way, as they would use any other street in the city; that is, as 
much as they had any occasion to pass down there with teams or on 
foot." 

It does not appear that the plaintiff had any right in the way, un- 
less he had it as one of the public. There is no allegation or state- 
ment that the plaintiff had ever used the way before, or that he knew 
the way was paved, or noticed whether there was a sign or not. In- 
deed, if he was then using the way for the first time, the fair infer- 
ence would be, from the statement of the condition of the snow, that 
the fact that the way was paved was unknown to him until after the 
accident, and did not operate as an inducement to enter the way. The 
declaration contained no allegation as to any use by the public of the 
way, and the statement in the opening of counsel, that the public made 
use of that way, was qualified by the words, " that is, as much as they 



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SECrr. VI.] STEVENS V. NICHOLS 219 

had any occasion to pass down there with teams or on foot." It is 
difficult to see how vehicles of any description could, when the paving 
was sufficiently visible to act as an inducement, go over that portion 
of the way which the defendants controlled. 

Without laying stress upon these points, we are of opinion that the 
declaration and the opening of the plaintiflf's counsel do not show that 
there was any breach on the part of the defendants of any duty which 
they owed the plaintifiF. The defendants were not obliged to put up a 
sign notifying travellers on the public street that the passageway was 
not a pubUc way. Galligan v. Metacomet Manuf. Co., 143 Mass. 527; 
Reardon v. Thompson, 149 Mass. 267; Redigan v. Boston & Maine 
Railroad, anUy 4A.^ 

Nor can the fact that the passageway was paved be considered an 
invitation or inducement to the public to enter upon it for their own 
convenience. The defendants have a right to pave it for their, own 
use or for the use of their customers. Johnson v. Boston & Maine 
Railroad, 126 Mass. 75; Heinlein v. Boston & Providence Railroad, 
147 Mass. 136; Reardon v. Thompson, 149 Mass. 267; Donnelly v, 
Boston & Maine Railroad, 151 Mass. 210; Redigan v, Boston & Maine 
Railroad, ante, 44. 

There was in this case no allegation and no statement that the de- 
fendants had 'any knowledge that the public was using the passage- 
way, or of such a condition of things that it can be said that they must 
have known of it. But if it be assumed that there was such use and 
such acquiescence that a license might be implied, the plaintiff stands 
in no better position. " The general rule is," as stated by Mr. Justice 
Holmes in Reardon v, Thompson, libi supra, " that a Ucensee goes 
upon land at his own risk, and must take the premises as he finds 
them." See also Redigan v, Boston & Maine Railroad, ante, 44; 
Gautret v, Egerton, L. R. 2 C. P. 371, 374. 

The Ucensor has, however, no right to create a new danger while 
the license continues. ' Oliver v. Worcester, 102 Mass. 489, 502; Cor- 
rigan v. Union Sugar Refinery, 98 Mass. 577; Corby v. Hill, 4 C. B. 
(n. s.) 556. So a railroad company which allows the pubUc habitu- 
ally to use a private crossing of its tracks cannot use active force 
against a person or vehicle crossing under a Ucense, express or im- 
plied. Sweeny v. Old CJolony & Newport Railroad, 10 Allen, 368; 
Murphy v. Boston & Albany Railroad, 133 Mass. 121 ; Hanks v. Bos- 
ton & Albany Railroad, 147 Mass. 495. See June v, Boston 4 Albany 
Raikoad, 153 Mass. 79, 82. 

We have no occasion to consider whether the case of Holmes v. 
Drew, 151 Mass. 578, is open to the criticism that it is inconsistent 
with the doctrine that a person who dedicates a footway to the public 
use is not obliged to keep it in repair (see Fisher v. Prowse, 2 B. & S. 
770, 780, and Bobbins v, Jones, 15 C. B. (n. s.) 221) as we are pf 

1 That is, 155 Mass. 



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220 TUTTLE V. GILBERT MANUFACTURING CO. [CHAP. II, 

opinion that that case has no appUcation to the case at bar. In Holmes 
V. Drew, the defendant made a continuous pavement in front of his 
house, partly on his own land and partly on the public land; and it 
was held that the jury might infer from this an invitation to walk 
over the whole pavement. In the case at bar, the defendants merely 
opened a private way into a public street, and we fail to see that th^ 
thereby invited the public to use it, even though itwere paved. 

ExcepUons overruled.^ 



TUTTLE V. GILBERT MANUFACTURING CO. 
SuFBEMB Judicial Court, Massachubbtts, October 20, 1887. 
Reported in 145 Maesachusetta ReportSf 169. 

ToRT, by lessee of a building against lessor. The lessee claimed, 
and introduced evidence to show, that, at the time of letting, the lessor 
agreed to repair the building and put it in safe condition; that the 
lessee suffered damage by reascoi of a defect in the building; and that 
the lessor failed and neglected to make repairs until after the damage 
to the plaintifiF. 

Upon the evidence, the judge ruled that plaintiff could not recover, 
and ordered a verdict for defendant, Plaintiflf excepted.* 

Morton, C. J. It is the general rule that there is no warranty im- 
plied in the letting of premises that they are reasonably fit for use. 
The lessee takes an estate in the premises hired, and he takes the risk 
of the quality of the premises, in the absence of an express or implied 
warranty by the lessor, or of deceit. A lessee, therefore, if he is injured 
by reason of the imsafe condition of the premises hired, cannot main- 
tain an action against the lessor, in the absence of warranty or of mis- 
representation. In cases where lessors have been held liable for such 
injuries to the lessees, the liability is founded in neghgence. Looney v. 
McLean, 129 Mass. 33. Bowe v. Hunking, 135 Mass. 380, and cases 
cited. 

> McClain v. Bank, 100 Me. 437; Moffatt v. Kenny, 174 Mass. 311 Accord. 

Hanson v, Spokane Water Co., 58 Wash. 6 Contra, Compare Bucking^ham v, 
Fisher. 70 lU. 121. 

Liahtlity to one who ha^ himness wUh an abutting owner who has a right to use the 
way: see Cavanagh v. Block, 192 Mass. 63. 

As to what constUiUes an implied invitation^ see Bryan v. Stewart, 194 Ala. 353; 
Baltimore R. Co. v. Slaughter, 167 Ind. 330: Pittsburgh R. Co. v. Simons, 168 
Ind. 333; Stanwood v. Clancey, 106 Me. 72; Kalus v. Bass, 122 Md. 467; Walker 
V, Winstanley, 155 Mass. 301 ; Plummer v. Dill, 156 Mass. 426; Chenery v. Fitch- 
burg R. Co., 160 Mass. 211; Tracey v. Page, 201 Mass. 62* Shaw v. Ogden, 214 
Mass. 475; Romana v. Boston R. Co., 218 Mass. 76; Allen v. Yazoo R. Co., 
Ill Miss. 267; Black v. Central R. Co., 85 N. J. Law, 197; Heskell v. Auburn 
Light Co., 209 N. Y. 86. 

< The statement has been much abridged. 



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SECT. VI.] TUTTLE V. GILBEBT MANUFACTURING CO. 221 

The plaintiff admits the geneanJ rule, but contends that this ease is 
taken out of it because, at the time of the letting, the defendant agreed 
to repair and put in a safe condition the stable floor, the unsafe con- 
dition of whidi caused the injury. The contract relied on is a loose 
one; it fixed no time within which the repairs were to be made, and 
it is doubtful whether the evidence proved any breach of contract on 
the part of the defendant. But if we assume that the contract was to 
make the repairs within a reasonable time, and that the jury would 
be justified in finding that the defendant had not performed it within 
a reasonable time, the question is whether, for such a breach, the plain- 
tiff can maintain an action of tort to recover for personal injuries 
sustained by reason of the defective condition of the stable floor. 

The cases are numerous and confusing as to the dividing line be- 
tween actions of contract and of tort, and there are many cases where 
a man may have his election to bring either action. Where the cause 
of action arises merely from a breach of promise, the action is in 
contract. 

The action of tort has for its foundation the negligence of the de- 
fendant, and this means more than a mere breach of a promise. Other- 
wise, the failure to meet a note, or any other promise to pay money, 
would sustain an action in tort for negligence, and thus the promisor 
be made liable for all the consequential damages arising from such 
failure. 

As a general rule, there must be some active negligence or misfea- 
sance to support tort. There must be some breach of duty distinct 
from breach of contract. In the case at bar, the utmost shown against 
the defendant is that there was imreasonable delay on its part in per- 
forming an executory contract. As we have seen, it is not Uable by 
reason of the relation of lessor and lessee, but its lialnlity, if any, 
must rest solely upon a breach of this contract. 

We do not see how the cases would differ in principle if an action 
were brou^t against a third person who had contracted to repair the 
stable floor and had imreasonably delayed in performing his contract. 
We are not aware of any authority for maintaining such an action. If 
the defendant had performed the work contemplated by its contract 
unskilfully and negligently, it would be liable to an action of tort, 
because in such case there would be a misfeasance, which is a suffi- 
cient foundation for an action of tort. Such was the case of Gill t;. 
Middleton, 106 Mass. 477. 

The case of Ashley v. Root, 4 Allen, 504, does not conflict with our 
view, but recognizes the rule that to sustain an action of tort there 
must be more than a mere breach of contract. 

The plaintiff now argues that he had the right to go to the jury 
upon the questions of warranty and deceit. It does not appear that 
this claim wa3 made in the Sup^or Court; but it is clear that there 



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222 SOUTHCOTE V, STANLEY [CHAP. n. 

is no suflScient evidence of any warranty that the stable was safe, or of 
any deceit or misrepresentation on the part of the defendant ol* its 
agent. Exceptions overruled.^ 



SOUTHCOTE V. STANLEY 
In the Exchequer, June 4, 1856. / • 
Reported in 1 Hurlsione & Nermann 247. 

The declaration stated that at the time of the committing of the 
grievances, &c., the defendant was possessed of an hotel, into which he 
had then permitted and invited the plaintiff to come as a visitor of the 
defendant, and in which the plaintiff as such visitor then lawfully was 
by the permission and invitation of the defendant, and in which hotel 
there then was a glass door of the defendant which it was then neces- 
sary for the plaintiff, as such visitor, to open for the purpose of leaving 
the hotel, and which the plaintiff, as such visitor, then by the per- 
mission of the defendant and with his knowledge, and without any 
warning from him, lawfully opened for the purpose aforesaid, as a door 
which was in a proper condition to be opened; nevertheless, by and 
through the mere carelessness, negligence, and default of the defend- 
ant in that behalf, the said door was then in an insecure and dangerous 
condition, and unfit to be used or opened, and by reason of the said 
door being in such insecure and dangerous condition and unfit, as 
aforesaid, and of the then carelessness, negligence, default, and im- 
proper conduct of the defendant in that behalf, a large piece of glass 
from the said door fell out of the same to and upon the plaintiff, and 
wounded him, and he sustained divers bodily injuries, and remained 
ill and unable to work for a long time, &c. 

Demurrer and joinder therein. 

Raymond, in support of the demurrer. The declaration discloses 
no cause of action. It is not stated that the plaintiff was in the hotel 

* Anderson v. Robinson, 182 Ala. 615; Hedskin v. Gillespie, 33 Ind. App. 650; 
Shackford v. Coffin, 95 Me. 69; Rolfe v. Tufts, 216 Mass. 663; Brady v, Klein, 133 
Mich. 422; Korach v. LoefFel, 168 Mo. App. 414 (but see Graff v, Lemp Brewing 
Co., 130 Mo. App. 618; Marcheck v. Klute, 133 Mo. App. 280); Dustin v. Curtis, 
74 N. H. 266; Schick v. Fleischhauer, 26 App. Div. 210; Stelz v. Van Dusen, 93 
App. Div. 358; Kushes v. Ginsberg, 99 App. Div. 417; Boden v. Scholtz, 101 App. 
Div. 1; Mitchell v. Stewart, 187 Pa. St. 217; Davis v. Smith, 26 R. 1. 129 Accord. 
See also Clyne v. Helmes, 61 N. J. Law, 358. Compare Miles v. Janvrin, 196 Mass. 
431, 200 Mass. 514; Flanagan v. Welch, 220 Mass. 186. 

Sontag V. O'Hare, 73 111. App. 432; Schwandt v. Metzger Oil Co., 93 111. App. 
365 (but see Cromwell v. Allen, 151 111. App. 404) ; Good t». Von Hemert, 114 Minn. 
393; Glidden v. Goodfellow, 124 Mhm. 101; Keegan v. Heileman Brewing Co., 
129 Minn. 496; Merchants Cotton Press Co. v. Miller, 135 Tenn. 187; Lowe v. 
O'Brien, 77 Wash. 677 Contra. See Moore v. Steljes, 69 Fed. 618. 

Liability where landlord makes repairs negligently: see Mann v. Fuller, 63 Kan, 
664: Gill v. Middleton, 105 Mass. 477; Thomas v. Lane, 221 Mass. 447; Finer v. 
Nichols, 175 Mo. App. 525; Carlon v. City Sav. Bank, 86 Neb. 659; Wynne v. 
Haight, 27 App. Div. 7: Marston v. Frisbie. 168 App. Div. 666; Flam v. Green- 
berg, (App. Div.) 158 N. y. Supp. 670; Wilcox v. Mines, 100 Tenn. 538. 



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SECT. VI.] 80UTHC0TE V. STANLEY 223 

as a guest, but merely as a visitor; and there is no allegation that the 
defendant knew of the dangerous condition of the door. To render 
the defendant liable, the declaration ought to have shown some con- 
tract between the plaintiff and the defendant which imposed on the 
latter the obligation of taking care that the door was secure; or it 
should have alleged some negligence on the part of the defendant in 
the performance of a duty which he owed to the plaintiff. [Bram- 
WELL, B. If a person invites another into his house, and the latter 
can only enter through a particular door, is it not the duty of the 
former to take care that the door is in a secure condition ?] He may 
not be aware that the door is insecrn^. This declaration only alleges 
that through the carelessness, negligence, and default of the defendant 
the door was in a dangerous condition; that cannot be read as involv- 
ing the allegation that the defendant knew that the door was insecure. 
All facts necessary to raise a legal liability must be strictly averred. 
Metcalfe v. Hetherington, 11 Exch. 257. [Axderson, B. It is not 
stated that it was the duty of the defendant, as an hotel keeper, to 
take care that the door was secure. Suppose a person invites another 
to his house, and the latter runs his hand through a pane of glass, how 
is the former liable ?] The Court then caUed on 

Grayy contra. The declaration shows a duty on the part of the de- 
fendant, and a breach of that duty. It is inamateriaJ whether the in- 
jury takes place in a private house, or in a shop, or in a street; the 
only question is whether the person who complains was lawfully 
there ? The case is similar in principle to that of Randleson v. Mur- 
ray, 8 A. & E. 109, which decided that a warehouseman who lowers 
goods from his warehouse is boimd to use proper tackle for that pm-- 
pose. [Alderson, B. It is the duty of every person who hangs any- 
thing over a public way to take care that it is suspended by a proper 
rope.] Whether it be a private house or a shop, a duty is so far im- 
posed on the occupier to keep it reasonably secure, that if a person 
lawfully enters, and through the negligence of the occupier in leaving 
it in an insecure state receives an injury, the occupier is responsible. 
Here it is alleged that the defendant invited the plaintiff to come into 
the hotel as a visitor; that shows that he was lawfully there. [Pol- 
lock, C. B. The position that an action lies because the plaintiff was 
lawfully in the house, cannot be supported ; a servant is lawfully in his 
master's house and yet if the balusters fell, whereby he was injured, 
he could not maintain an action against the master. If a lady who is 
invited to dinner goes in an expensive dress, and a servant spills some- 
thing over her dress which spoils it, the master of the house would not 
be liable. Where a person enters a house by invitation the same rule 
prevails as in the case of a servant. A visitor would have no right of 
action for being put in a damp bed, or near a broken pane of glass, 
whereby he caught cold. Alderson, B. The case of a shop is differ- 
ent, because a shop is open to the pubUc; and there is a distinction 



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224 SOUTHCOTB V. STANLEY [CHAP. H. 

between persons who come on business and those who come by 
invitation.] 

Pollock, C. B, We are all of opinion that the declaration cannot 
be supported, and that the defendant is entitled to judgment. I do 
not think it necessary to point out the reasons by which I have come to 
that conclusion; because it follows from the decision of this Court 
(Priestley v. Fowler, 3 M. & W. 1) that the mere relation of master 
and servant does not create any impUed duty on the part of the master 
to take more care of the servant than he may reasonably be expected 
to do of himself. That decision has been followed by several cases,^ 
and is now established law, though I believe the principle was. not 
recognized until recent times. The reason for the rule is that the 
servant imdertakes to run all the ordinary risks of service, including 
those arising from the negligence of his fellow-servants. The rule ap- 
pUes to all the members of a domestic establishment, so that the mas- 
ter is not in general liable to a servant for injury resulting from the 
negligence of a fellow-servant; neither can one servant maintain an 
action against another for negligence whilst engaged in their common 
employment. The same principle applies to the case of a visitor at a 
house; whilst he remains there he is in the same position as any other 
member of the establishment, so far as regards the negligence of the 
master or his servants, and he must take his chance with the rest. 

Aldbbson, B. I am of the same (pinion. 

Bramwell, B. I agree with Mr. Gray to tkis extent, that where a 
person is in the house of another, either on business or for any other 
purpose, he has a right to expect that the owner of the house wHl take 
reasonable care to pxrotect him from injury; for instance, that he will 
not allow a trap-door to be open through which the visitor may fall. 
But in this case my difficulty is to see that the declaration charges any 
act of ccmunission. If a person asked another to walk in his garden, 
in whidi he had placed spring-guns or men-traps, and the latter, not 
being aware of it, was thereby injured, that would be an act of camr 
mission. But if a person asked a visitor to sle^ at his house, and the 
former omitted to see that tl^ sheets were properly aired, whereby 
the visitor caught cold, he could maintain no action, for there was no 
act of commisirion, but simply an act of omisson. This declaration 
merely alleges that " by and through the mere carelessness, negligence, 
default, and improper conduct of the defendant," the glass fell from 
the door. That means a want of care, — a default in not doing some- 
thing. The words are all negatives, and und^ these circumstances 
the action is not maintainable. I doubted whether the wwds " care- 
lessness, negligence, and improper conduct," Ac, might not mean 
something equivalent to actual commission, but on the best considera- 
tion which I can give the subject, it appears to me that they do not 

* See Hutchinson v. The Newcastle, York, A Berwick Railway Company, 6 
Erch. 343; Wiggett v. Fox, 11 Exch. 832. — Reporter's Note. 



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SECT. VI.] BEEHLER V. DANIELS 225 

mean that, but merely point to a negative. If I misconstrue the 
declaration it is the fault of those who so framed it. 

Judgment far the defendant.^ 



BEEHLER v. DANIELS 

SiTFBEME Court, Rhode Island, Mat 1, 1894. 

Reported in 18 Rhode Island Reports, 563. 

Trespass on the Case. Certified from the Common Pleas Divi- 
sion on demurrer to the declaration. 

Stiness, J. The plaintiff seeks to recover for injury caused by fall- 
ing into an elevator well in the defendants' building, which he entered 
in the discharge of his duty, as a member of the fire department of the 
city of Providence, in answering a call to extinguish a fire. The negli- 
gence alleged in the first coimt is a failure to guard and protect the 
well; and in the second coimt such a packing of merchaiidise as to 
guide and conduct one to the imguarded and unprotected well. The 
defendants demur to the declaration, alleging as groimds of demiurer 
that they owed no duty to the plaintiff; that he entered their premises 
in the discharge of a public duty and assumed the risks of his employ- 
ment; that he was in the premises without invitation from them; and 
that they are not liable for consequences which they could not and 
were not boimd to foresee. 

The decisive question thus raised is. Did the defendants, imder the 
circumstances, owe to the plaintiff a duty, for failure in which they 
are liable to him in damages ? The question is not a new one, and 
we think it is safe to say that it has never been answered otherwise 
than in favor of the defendants. The plaintiff argues that it was his 
duty to enter the premises, and, consequently, since an owner may 
reasonably anticipate the liability of a fire, a duty arises from the 
owner to the fireman to keep his premises guarded and safe. An ex- 
tension of this argument to its legitimate result, as a rule of law, is 
suflSciently startling to show its imsoundness. The liability to fire is 
common to all buildings and at all times. Hence every owner of 
every building must at all times keep every part of his property, 
in such condition, that a fireman, unacquainted with the place, and 
groping about in darkness and smoke, shall come upon no obstacle, 
opening, machine or anything whatever which may cause him injury. 
TTiis argument was urged in Woodruff v. Bowen, 136 Ind. 431; but 

* Whether the result in the above case is correct is a question not yet decided in 
most of the United States, and upon which conflicting opinions have been ex- 
pressed. See Hart v. Cole, 166 Mass. 475; Knowlton, J., in Coupe v, Piatt, 172 
Mass. 458, 459: Bigelow on Torts, 7th ed., pp. 362, 363, sections 740-743, 8th ed., 
p. 158: Burdick on Torts, 3d ed., sect. 555; 2 Shearman & Redfield on Negligence, 
4th ed., sect. 706; Barman v. Spencer, (Ind.) 49 N. E. 9, 11, 12; Beard w. Klus- 
meier, 158 Ky. 153; Land v, Fitzgerald, 68 N. J. Law, 28. 



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226 BEEHLER V. DANIELS [CHAP. U. 

the court said: " We are of the opinion that the owner of a building 
in a populous city does not owe it as a duty at common law, inde- 
pendent of any statute or ordinance, to keep such building safe for 
firemen or other oflScers, who, in a contingency, may enter the same 
under a license conferred by law/' 

Undoubtedly the plaintiff in this case had the right to enter the 
defendants' premises, and the character of his entry was that of a 
licensee. Cooley on Torts, *313. But no such duty as is averred in 
this declaration is due from an owner to a licensee. This question is 
discussed in the case just cited, as also in many others. For example, 
in Reardon v, Thompson, 149 Mass. 267, Holmes, J., says: " But the 
general rule is that a licensee goes upon land at his own risk, and 
must take the premises as he finds them. An open hole, which is not 
concealed otherwise than by the darkness of the night, is' a danger 
which a licensee must avoid at his peril." So in Mathews v. Bensel, 
51 N. J. Law, 30, Beasley, C. J., says: " The substantial groimd of 
complaint laid in the coimt is, that the defendants did not properly 
construct their planer, and, being a dangerous instrument, did not sur- 
roimd it with proper safeguards. But there is no legal principle that 
imposes such a duty as this on the owner of property with respect to 
a mere licensee. This is the recognized rule. In the case of Holmes 
V, Northeastern Railway Co., L. R. 4 Exch. 254, 256, Baron Channell 
says: ' That where a person is a mere licensee he has no cause of 
action on accoimt of the dangers existing in the place he is pennitted 
to enter.' " In Parker v. Portland Publishing Co., 69 Me. 173, this 
question is fully examined, the court holding it to be well settled, if 
the plaintiff was at the place where the injiuy was received by license 
merely, that the defendant would owe him no duty and that he could 
not recover. See also Indiana, etc.. Railway Co. v. Bamhart, 115 
Ind. 399; Gibson v. Leonard, 37 111. App. 344; Bedell v. Berkey, 76 
Mich. 435. 

There is a clear distinction between a license and an invitation to 
enter premises, and an equally clear distinction as to the duty of an 
owner in the two cases. An owner owes to a licensee no duty as to 
the condition of premises, imless imposed by statute, save that he 
should not knowingly let him run upon a hidden peril or wilfully 
cause him harm; while to one invited he is imder obligation for rea- 
sonable security for the purposes of the invitation. The plaintiff's 
declaration does not set out a cause of action upon either of these 
grounds, and the cases cited and relied on by him fall within the two 
classes of cases described, and mark the line of duty very clearly. 
Parker v. Barnard, 135 Mass. 116, was the case of a police oflScer who 
had entered a building, the doors of which were foimd open in the 
night time, to inspect it according to the rules of the police depart- 
ment, and fell down an unguarded elevator well. A statute required 
such wells to be protected by railings and trap-doors. Judgment 



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SECT. VI.] BEEHLER V. DANIELS 227 

having been given for the defendant at the trial, a new trial was 
ordered upon the ground of a violation of statute. The court says: 
" The owner or occupant of land or a building is not liable, at common 
law, for obstructions, pitfalls, or other dangers there existing, as, in 
the absence of any inducement or invitation to others to enter, he 
may use his property as he pleases. But he holds his property ' sub- 
ject to such reasonable control and regulation of the mode of keeping 
and use as the legislature, imder the police power vested in them by 
the Constitution of the Commonwealth, may think necessary for the 
preventing of injuries to the rights of others and the security of the 
public health and welfare.' " Then, likening the plaintiff to a fireman, 
the court also says: " Even if they must encoimter the danger arising 
from neglect of such precautions against obstructions and pitfalls as 
those invited or induced to enter have a right to expect, they may de- 
mand, as against the owners or occupants, that they observe the 
statute in the construction and management of their building." In 
Learoyd v. Grodfrey, 138 Mass. 315, a police oflScer fell down an im- 
covered well in or near a passageway to a house where he was called to 
quell a disturbance of the peace. A verdict for the plaintiff was sus- 
tained upon the groimd that the jury must have foimd that the oflScer 
was using the passageway by the defendant's invitation and that the 
evidence warranted the finding. Gordon v. Cummings, 152 Mass. 
513, was the case of a letter carrier who fell into an elevator well, in a 
hallway where-he was accustomed to leave letters in boxes put there 
for that purpose. The court held that there was an implied invitation 
to the carrier to enter the premises. In Engel v. Smith, 82 Mich. 1, 
the plaintiff fell through a trap-door left open in a building where he 
was employed. The question of duty is not discussed in the case but 
simply the fact of ne^gence. In Bennett v. Railroad Co., 102 U. S. 
577, the plaintiff, a passenger, fell through a hatch hole in the depot 
floor. The court construed the declaration as setting out facts which 
amoimted to an invitation to the plaintiff to pass over the route which 
he took through the shed depot where the hatch hole was. 

In the present case the plaintiff sets out no violation of a statute, or 
facts which amoimt to an invitation, and, consequently, under the 
well-settled rule of law, the defendants were under no liability to him 
for the condition of their premises or the packing of their merchandise. 
The demurrer to the declaration must therefore be sustained.^ 

* Pennebaker v. San Joaquin Light Co., 158 Cal. 579; Liint v. Poet Printing Co., 
48 Col. 316; Gibson v. Leonard, 143 HI. 182, 37 111. App. 344; Thrift v. Vandalia 
R. Co., 145 HI. App. 414; WoodruflF v. Bowen, 136 Ind. 431; Hanailton v. Minne- 
apolis Desk Co„ 78 Minn. 3; New Omaha Electric Light Co. v. Anderson, 73 Neb. 
84; Woods v. M.iller, 30 App. Div. 232; Eckes v. Stetler, 98 App, Div. 76; Houston 
R. Co. V, O'Leary, (Tex. Civ. App.) 136 S. W. 601 Accord. But see Wilson v. 
Great Southern Tel. Co., 41 La. Ann. 1041. 

LdabUity to police officer or other person in by permission of law: see Casey v, 
Adams, 234 111. 350; Eckels i». Maher, 137 HI. App. 45; Blatt v, McBarron. 161 
Mass. 21; Racine v, Morris, 136 App. Div. 467; Woods v. Lloyd, (Pa.) 16 Atl. 43; 



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228 WINTERBOTTOM V. WRIGHT [CHAP. n. 



Section VII 

Liability to Third Persons op Maker or Vendor op a 

Chattel 



WINTERBOTTOM v. WRIGHT 

In the Exchequer, June 6, 1842. 

Reported in 10 Meesan & Welahyt 109. 

Case. The declaration stated, that the defendant was a contractor 
for the supply of mail-coaches, and had in that character contracted 
for hire and reward with the Postmaster-General, to provide the mail- 
coach for the purpose of conveying the mail-bags from Hartford, in 
the county of Chester, to Holyhead: That the defendant, imder and 
by virtue of the said contract, had agreed with the said Postmaster- 
General that the said mail-coach should, during the said contract, be 
kept in a fit, proper, safe, and secure state and condition for the said 
purpose, and took upon himself, to wit, imder and by virtue of the 
said contract, the sole and exclusive duty, chaise, care, and burden 
of the repairs, state, and condition of the said mail-coach; and it 
had become and was the sole and exclusive duty of the defendant,, to 
wit, imder and by virtue of his said contract, to keep and maintain 
the said mail-coach in a fit, proper, safe, and secure state and condi- 
tion for the purpose aforesaid: That Nathaniel Atkinson and other 
persons, having notice of the said contract, were under contract with 
the Postmaster-General to convey the said mail-coach from Hartford 
to Holyhead, and to supply horses and coachmen for that purpose, 
and also not, on any pretence whatever, to use or employ any other 
coach or carriage whatever than such as should be so provided, di- 
rected, and appointed by the Postmaster-General: That the plaintiff, 
being a mail-coachman, and thereby obtaining his livelihood, and 
whilst the said several contracts were in force, having notice thereof, 
and trusting to and confiding in the contract made between the de- 
fendant and the Postmaster-General, and believing that the said coach 
was in a fit, safe, secure, and proper state and condition for the pur- 
Burroughs Adding Machine Co. v. Fryar, 132 Tenn. 612; Greenville v. Pitts, 
102 Tex. 1. 

But compare Kennedy v. Heisen, 182 111. App. 200; Parker ». Barnard, 135 
Mass. 116; Learoyd v. Godfrey, 138 Mass. 315; Pickwick v. McCauliff, 193 Mass. 
70. 

LiabUity to volunteer sahor in case of fire: see Kohn v. Lovett, 44 Ga. 251; Gib- 
son v. Leonard, 143 HI. 182. 

LiabUity to 'person who has contractiud right to inspect the premises: see Dashields 
V, Moses, 35 App. D. C. 583. 



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SECT. Vn,] WINTERBOTTOM V. WRIGHT 229 

pose aforesaid, and not knowing and having no means of knowing to 
the contrary thereof, hired himself to the said Nathaniel Atkinson 
and his co-contractors as mail-coachman, to drive and take the con- 
duct of the said mail-coach, which but for the said contract of the 
defendant he would not have done. The declaration then averred, 
that the defendant so improperly and negligently conducted himself, 
and so utterly disregarded his aforesaid contract, and so wholly 
n^ected and failed to perform his duty in this behalf, that heretofore, 
to wit, on the 8th of August, 1840, whilst the plaintiff, as such mail- 
coachman so hired, was driving the said mail-coach from Hartford to 
Holyhead, the same coach, being a mail-coach foimd and provided by 
the defendant imder his said contract, and the defendant then acting 
imder his said contract, and having the means of knowing and then 
well knowing all the aforesaid premises, the said mail-coach being 
then in a frail, weak, infirm, and dangerous state and condition, to wit, 
by and through certain latent defects in the state and condition 
thereof, and unsafe and unfit for the use and purpose aforesaid, and 
from no other cause, circmnstance, matter, or thing whatsoever gave 
way and broke down, whereby the plaintiff was thrown from his seat, 
and, in consequence of injuries then received, had become lamed for 
life. 

To this declaration the defendant pleaded several pleas, to two of 
which there were demurrers; but, as the Court gave no opinion as to 
their validity, it is not necessary to state them. 

Peacock, who appeared in support of the demurrers, having argued 
against the suflSciency of the pleas, — 

ByleSy for the defendant, objected that the declaration was bad in 
substance. This is an action brought, not against Atkinson and his 
co-contractors, who were the employers of the plaintiff, but against 
the person employed by the Postmaster-General, and totally imcon- 
nected with them or with the plaintiff. Now it is a general rule, that 
wherever a wrong arises merely out of the breach of a contract, which 
is the case on the face of this declaration, whether the form in which 
the action is conceived be ex contrddu or ex delicto^ the party who 
made the contract alone can sue: Tollit v, Sherstone, 5 M. & W. 283. 
If the rule were otherwise, and privity of contract were not requisite, 
there would be no limit to such actions. If the plaintiff may, as in 
this case, run through the length of three contracts, he may run 
through any number or series of them; and the most alarming conse- 
quences would follow the adoption of such a principle. Levy v. 
Langridge, 4 M. & W. 337, will probably be referred to on the other 
side. But that case was expressly decid^ on the ground that the de- 
fendant, who sold the gun by which the plaintiff was injured, although 
he did not personally contract with the plaintiff, who was a minor, 
knew that it was bought to be used by him. Here there is no allega- 
tion that the defendant knew that the coach was to be driven by the 



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230 WINTERBOTTOM V. WRIGHT [CHAP. H, 

plaintiff. There, moreover, fraud was alleged in the declaration, and 
found by the jury: and there, too, the cause of injiuy was a weapon 
of a dangerous nature, and tiie defendant was alleged to have had 
notice of the defect in its construction. Nothing of that sort appears 
upon this declaration. 

Peacock, contra. This case is within the principle of the decision 
in Levy v. Langridge. Here the defendant entered into a contract 
with a public officer to supply an article which, if imperfectly con- 
structed, was necessarily dimgerous, and which, from its nature and 
the use for which it was destined, was necessarily to be driven by a 
coachman. That is sufficient to bring the case within the rule estab- 
lished by Levy v. Langridge. In that case the contract made by the 
father of the plainti£F with the defendant was made on behalf of him- 
self and his family generally, and there was nothing to show that the 
defendant was aware even of the existence of the particular son who 
was injured. Suppose a party made a contract with government for 
a supply of muskets, one of which, from its misconstruction, burst 
and injured a soldier: there it is clear that the use of the weapon by a 
soldier would have been contemplated, although not by the particular 
individual who received the injiuy, and could it be said, since the 
decision in Levy v. Langridge, that he could not maintain an action 
against the contractor ? So, if a coachmaker, employed to put on the 
wheels of a carriage, did it so negligently that one of them flew oflf, and 
a child of the owner were thereby injured, the damage being the 
natural and inunediate consequence of his negligence, he would siu^ly 
be responsible. So, if a party entered into a contract to repair a 
church, a workhouse, or other public building, and did it so insuffi- 
ciently that a person attending the former, or a pauper in the latter, 
were injured by the falling of a stone, he could not maintain an action 
against any other person than the contractor; but against him he 
must surely have a remedy. It is like the case of a contractor who 
negligently leaves open a sewer, whereby a person passing along the 
street is injured. It is clear that no action could be maintained against 
the Postmaster-General: Hall v. Smith, 2 Bing. 156; Humphreys v. 
Mears, 1 Man. & R. 187; Priestly v. Fowler. But here the declara- 
tion alleges the accident to have happened through the defendant's 
negligence and want of care. The plaintiff had no opportunity of 
seeing that the carriage was sound and secure. [Alderson, B. The 
decision in Levy v, Langridge proceeds upon the ground of the knowl- 
edge and fraud of the defendant.] Here also there was fraud: 
the defendant represented the coach to be in a proper state for use, 
and whether he represented that which was false within his knowledge, 
or a fact as true which he did not know to be so, it was equally a fraud 
in point of law, for which he is responsible. 

Lord Abinger, C. B. I am clearly of opinion that the defendant is 
entitled to our judgment. We ought not to permit a doubt to rest 



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SECT. Vn.] WINTERBOTTOM V. WRIGHT 231 

upon this subject, for our doing so might be the means of letting in 
upon us an infinity of actions. This is an action of the first impres- 
sion, and it has been brought in spite of the precautions which were 
taken, in the judgment of this Court in the case of Levy v. Lang- 
ridge, to obviate any notion that such an action could be maintained. 
We ought not to attempt to extend the principle of that decision, 
which, although it has been cited in support of this action, wholly 
fails as an authority in its favor; for there the gun was bought for 
the use of the son, the plaintiff in that action, who could not make 
the bargain himself, but was really and substantially the party con- 
tracting. Here the action is brought simply because the defendant 
was a contractor with a third person; and it is contended that there- 
upon he became liable to everybody who might use the carriage. If 
there had been any groimd for such an action, there certainly would 
have been some precedent of it; but with the exception of actions 
against inn-keepers, and some few other persons, no case of a similar 
nature has occurred in practice. That is a strong circumstance, and 
is of itself a great authority against its maintenance. It is however 
contended, that this contract being made on the behalf of the public 
by the Postmaster-General, no action could be maintained against 
him, and therefore the plaintiff must have a remedy against the 
defendant. But that is by no means a necessary consequence, — he 
may be remediless altogether. There is no privity of contract between 
these parties; and if the plaintiff can sue, every passenger, or even 
any person passing along the road, who was injured by the upsetting 
of the coach, might bring a similar action. Unless we confine the 
operation of such contracts as this to the parties who entered into 
them, the most absurd and outrageous consequences, to which I can 
see no limit, would ensue. Where a party becomes responsible to 
the public, by undertaking a public duty, he is liable, though the in- 
jury may have arisen from the negligence of his servant or agent. 
So, in cases of public nuisances, whether the act was done by the 
party as a servant, or in any other capacity, you are liable to an action 
at the suit of any person who suffers. Those, however, are cases where 
the real groimd of the liability is the public duty, or the commission 
of the public nuisance. There is also a class of cases in which the 
law permits a contract to be turned into a tort; but unless there has 
been some pubUc duty imdertaken, or public nuisance committed, 
they are all cases in which an action might have been maintained upon 
the contract. Thus, a carrier may be sued either in assumpsit or 
case; but there is no instance in which a party, who was not privy 
to the contract entered into with him, can maintain any such action. 
The plaintiff in this case could not have brought an action on the 
contract; if he could have done so, what would have been his situation 
supposing the Postmaster-General had released the defendant ? That 
would, at all events, have defeated his claim altogether. By permit- 



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232 WINTERBOTTOM V. WRIGHT [CHAP, U. 

ting this action, we should be working this injustice, that after the 
defendant had done everything to the satisfaction of his employer, 
and after all matters between them had been adjusted, and all ac- 
coimts settled on the footing of then- contract, we should subject 
them to be ripped open by this action of tort being brought against 
him. 

Alderson, B. I am of the same opinion. The contract in this 
case was made with the Postmaster-General alone; and the case is 
just the same as if he had come to the defendant and ordered a car- 
riage, and handed it at once over to Atkinson. If we were to hold that 
the plaintiff could sue in such a case, there is no point at which such 
actions would stop. The only safe rule is to confine the right to 
recover to those who enter into the contract : if we go one step beyond 
that, there is no reason why we should not go fifty. The only real 
ailment in favor of the action is, that this is a case of hardship; 
but that might have been obviated, if the plaintiff had made himself a 
party to the contract. Then it is lu^ed that it falls within the prin- 
ciple of the case of Levy v. Langridge. But the principle of that 
case was simply this, that the father having bought the gun for the 
very purpose of being used by the plaintiff, the defendant made rep- 
resentations by which he was induced to use it. There, a distinct 
fraud was conunitted on the plaintiff; the falsehood of the representa- 
tion was also alleged to have been within the knowledge of the 
defendant who made it, and he was properly held liable for the conse- 
quences. How are the facts of that case applicable to those of the 
present ? Where is the allegation of misrepresentation or fraud in this 
declaration ? It shows nothing of the kind. Our judgment must 
therefore be for the defendant. 

Gurnet, B., concurred. 

RoLFE, B. The breach of the defendant's duty, stated in this 
declaration, is his omission to keep the carriage in a safe condition; 
and when we examine the mode in which that duty is alleged to have 
arisen, we find a statement that the defendant took upon himself, to 
wit, imder and by virtue of the said contract, the sole and exclusive 
duty, charge, care, and burden of the repairs, state, and condition of 
the said mail-coach, and, during all the time aforesaid, it had become 
and was the sole and exclusive duty of the defendant, to wit, imder 
and by virtue of his said contract, to keep and maintain the said mail- 
coach in a fit, proper, safe, and secure state and condition. The duty, 
therefore, is shown to have arisen solely from the contract; and the 
fallacy consists in the use of that word " duty." If a duty to the 
Postmaster-General be meant, that is true; but if a duty to the plain- 
tiff be intended (and in that sense the word is evidently used), there 
was none. This is one of those unfortunate cases in which there 
certainly has been damnum, but it is damnum absque injuria; it is, 
no doubt, a hardship upon the plaintiff to be without a remedy, but, by 



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SECT. VII.] BLOOD BALM COMPANY V. COOPEB 233 

that consideration we ought not to be influenced. Hard cases, it has 
been frequently observed, are apt to introduce bad law. 

Jitdgment for the defendant.^ 



BLOOD BALM COMPANY v. COOPER 

SUFBEBIE COUKT, GEORGIA, OCTOBEE 14, 1889. 
Reported in 83 Oeorgia ReporUy 857. 

Action by Cooper against Blood Bahn Company in the City Court 
of Atlanta. Verdict for plaintiff. Defendants brought error.* 

Blandford, J. The main question in this case arises upon the 
refusal of the Court below to award a nonsxiit, and the solution of this 
question depends upon whether, where one prepares what is known as 
a proprietary or patent medicine, and puts it upon the market and 
recommends it to the world as useful for the cure of certain diseases, 
the bottle containing it having therewith a prescription made by the 
proprietor of the medicine, in which he states that it is to be taken 
in certain quantities, and such medicine, accompanied with this pre- 
scription, is sold by the proprietor to a dru^ist for the purpose of 
being resold to persons who might wish to use it, and the druggist sells 
the same to a person who uses it in the quantity thus prescribed, and 
it being shown that the same contains a certain article known as the 
iodide of potash in such quantity as proves harmful to the person 
thus using, the proprietor is liable. The plaintiff in error insists that 
there is no liability on the part of the proprietor, (1) because it was 
not sold by the proprietor to the person injured, but by a druggist 
who had purchased the same from the proprietor; and several cases 
are cited to sustain this position; (2) because the drug thus sold was 
not imminently hurtful or poisonous. 

L We are not aware of any decision of this Court upon this ques- 
tion, indeed there is none; and we have searched carefully not only 
the authorities cited by counsel in this case, but others, and we find 
no question like the one which arises in this record determined by 
any Court. In the case of Thomas v. Winchester, 6 N. Y. (2 Seld.) 
397, 57 Am. Dec. 455, 1 Thompson, Neg. 224, referred to by coun- 
sel in this case, the question decided was, that a dealer in drugs and 
medicines who carelessly labels a deadly poison as a harmless medi- 
cine, and sends it so labelled into market, is liable to all persons who, 
without fault on their part, are injured by using it as such medicine 
in consequence of the false label. This comes nearer the present case 

* The authorities on all sides of the question raised in this cause are collected 
and discussed in the cases that follow. See also Pollock, Torts, 6 ed., 49d-497; 
Piggott. Torts, 231-232; 1 Jageard. Torts, 904-909; Clerk & Lindsell, Torts, 6 ed., 
511-522: Salmond, Torts, 4 edf., 415-424; Bohlen, Affirmative Obligations in the 
Law of Torts, 44 Am. Law Reg. 341. 

* The statement of facts by the reporter is omitted. . 



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234 BLOOD BALM COMPANY V. COOPER [CHAP. II. 

than any we have been able to find, and it is relied upon by both 
parties as an authority; and in the notes thereto by Mr. Freeman in 
the American Decisions, the cases relied upon by counsel in this case 
are embraced and referred to, and to some extent considered. It is 
not denied by counsel in this case that the doctrine of the case cited 
(Thomas v. Winchester) is sound and correct law, but the present 
case differs from that case, and mainly in this: there the drug sold 
was a deadly poison, and the wrong consisted in putting a label upon 
the same which indicated that it was a harmless medicine; whereas 
in this case the medicine sold was not a deadly poison, and no label 
was put upon it which was calculated to deceive any one in this re- 
spect. But accompanying this medicine was a prescription of the 
proprietor stating the quantity to be taken, and the evidence tended to 
show that the quantity thus prescribed contained iodide of potash to 
such an extent as, when taken by the plaintiff, produced the injury 
and damage complained of. The liability of the plaintiff in error to 
the person injured arises, not by contract, but for a wrong committed 
by the proprietor in the prescription and direction as to the dose that 
should be taken. 

We can see no difference whether the medicine was directly sold to 
the defendant in error by the proprietor, or by an intermediate party 
to whom the proprietors had sold it in the first instance for the pur- 
pose of being sold again. It was put upon the market by the pro- 
prietor, not alone for the use of dru^ists to whom they might sell 
it, but to be used by the public in general who might need the same 
for the cure of certain diseases for which the proprietor set forth in 
his label the same was adapted. This was the same thing as if the 
proprietor himself had sold this medicine to the defendant in error, 
with his instructions and directions as to how the same should be 
taken. In all the cases cited by the plaintiff in error there is no case 
in which the proprietor prescribed the doses and quantities to be taken 
of the medicine sold by him. If this medicine contained the iodide 
of potassium in sufficient quantity to produce the injurious conse- 
quences complained of to the defendant in error, and if the same was 
administered to him, either by himself or any other person, as pre- 
scribed in the label accompanying the medicine, he could, in our judg- 
ment, recover for any injury he may have sustained on account of the 
poisonous effect thereof. It was a wrong on the part of the proprietor 
to extend to the public generally an invitation to take the medicine in 
quantities sufficient to injure and damage persons who might take it. 

A medicine which is known to the public as being dangerous and 
poisonous if taken in large quantities, may be sold by the proprietor to 
druggists and others, and if any person, without more, should pur- 
chase and take the same so as to cause injury to himself, the pro- 
prietor would not be liable. But if the contents of a medicine are 
concealed from the public generally, and the medicine is prepared by 



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SECT. Vn.] HUSET V. CASE THRESHING MACHINE CO. 235 

one who know its contents, and he sells the same, recommending it 
for certain diseases and prescribing the mode in which it shall be 
taken, and injury is thereby sustained by the person taking the same, 
the proprietor would be liable for the damage thus sustained. These 
proprietary or patent medicines are secret, or intended by the pro- 
prietors to be secret, as to their contents. They expect to derive a 
profit from such secrecy. They are therefore liable for all injuries 
sustained by any one who takes their medicine in such quantities as 
may be prescribed by them. There is no way for a person who uses 
the medicine to ascertain what its contents are, ordinarily, and in this 
case the contents were only ascertained after an analysis made by a 
chemist, — which would be very inconvenient and expensive to the 
public; nor would it be the duty of a person using the medicine to 
ascertain what poisonous drugs it may contain. He has a right to 
rely upon the statement and reconmiendation of the proprietor, 
printed and published to the world; and if thus relying, he takes the 
medicine and is injured on account of some concealed drug of which 
he is imaware, the proprietor is not free from fault, and is liable for the 
injury thereby sustained. It appears from the analysis made by 
the chemist in this case that this medicine contained 25 grains of the 
iodide of potash to two tablespoonfuls of the medicine. The testi- 
mony of the plaintiff, by witnesses learned in the profession of medi- 
cine, was that iodide of potash in this quantity would produce the 
effects upon a person using it shown by the condition of the defendant 
in error. The prescription accompanying the bottle directed the 
taking of one to two tablespoonfuls of the medicine, and this was done 
by the defendant in error, and he was thereby greatly injured and 
damaged. 

This is not like the case of a dangerous machine or a gun sold to a 
person and by him given or sold to another, as in some of the cases 
referred to. Mr. Freeman, in his notes to the case above referred to 
(Thomas v, Winchester), alludes to all those cases; and Mr. Thomp- 
son, in his work on Negligence, refers to the same cases, and they are 
there fully discussed. Judgment affirmed. 

[Remainder of opinion omitted.] 



HUSET V. J. I. CASE THRESHING MACHINE CO. 

Circuit Coubt op Appeals, Eighth Cracurr, February 26, 1903. 
Reported in 120 Federal Reporter, 865. 

Sanborn, Circuit Judge: ^ 

Is a manufacturer or vendor of an article or machine which he 
knows, when he sells it, to be imminently dangerous, by reason of a 
concealed defect therein, to the life and limbs of any one who shall use 

^ The statement of facts is omitted. 



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236 HUSET V. CASE 'HaRESHING MACHINE CO. [CHAP. II. 

it for the purpose for which it was made and intended, liable to a 
stranger to the contract of sale for an injury which he sustains from 
the concealed defect while he is lawfully applying the article or 
machine to its intended use ? 

The argument of this question has traversed the whole field in which 
the liability of contractors, manufacturers, and vendors to strangers 
to their contracts for negligence in the construction or sale of their 
articles has been contested. The decisions which have been cited Are 
not entirely harmom'ous, and it is impossible to reconcile all of them 
with any established rule of law. And yet the imderlying principle 
of the law of negligence, that it is the duty of every one to so act him- 
self and to so use his property as to do no unnecessary damage to his 
neighbors, leads us fairly through the maze. With this fundamental 
principle in mind, if we contemplate the familiar rules that every one 
is liable for the natural and probable effects of his acts; that negli- 
gence is a breach of a duty; that an injury that is the natural and 
probable consequence of an act of negligence is actionable, while one 
that could not have been foreseen or reasonably anticipated as the 
probable effect of such an act is not actionable, because the act of 
negligence in such a case is the remote, and not the proximate, cause 
of the injiuy; and that, for the same reason, an injiuy is not action- 
able which would not have resulted from an act of negligence except 
from the interposition of an independent cause (Chicago, St. Paul, 
Minneapolis & Omaha R. Co. v. Elliott, 55 Fed. 949, 5 C. C. A. 347, 
20 L. R. A. 582) — nearly all the decisions upon this subject range 
themselves along symmetrical lines, and establish rational rules of the 
law of negligence consistent with the basic principles upon which it 
refifts. 

Actions for negligence are for breaches of duty. Actions on con- 
tracts are for breaches of agreements. Hence the limits of liability 
for negligence are not the limits of liability for breaches of contracts, 
and actions for negligence often accrue where actions upon contracts 
do not arise, and vice versa. It is a rational and fair deduction from 
the rules to which brief reference has been made that one who makes 
or sells a machine, a building, a tool, or an article of merchandise 
designed and fitted for a specific use is liable to the person who, in 
the natural course of events, uses it for the purpose for which it was 
made or sold, for an injury which is the natural and probable con- 
sequence of sale. But when a contractor builds a house or a bridge, or 
a manufacturer constructs a car or a carriage, for the owner thereof 
under a special contract with him, an injury to any other person than 
the owner for whom the article is built and to whom it is delivered 
cannot ordinarily be foreseen or reasonably anticipated as the probable 
result of the negligence in its construction. So, when a manufacturer 
sells articles to the wholesale or retail dealers, or to those who are to 
use them, injury to third persons is not generally the natural or prob- 



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SECT. Vn.] HUSET V. CASE THRESHING MACHINE CO. 237 

able effect of negligence in their manufacture; because (1) such a 
result cannot ordinarily be reasonably anticipated, and because (2) 
an independent cause — the responsible human agency of the pur- 
chaser — without which the injury to the third person would not 
occur, intervenes, and, as Wharton sajrs, " insulat^ " the negligence 
of the manufacturer from the injury to the third person. Wharton 
on Law of N^igence (2d ed.) § 134. For the reason that in the cases 
of the character which have been mentioned the natural and t)robab!e 
effect of the negligence of the contractor or manufacturer will gen- 
erally be limited to the party for whom the article is constructed, or 
to whom it is sold, and, perhaps more than all this, for the reason that 
a wise and conservative public policy has impressed the courts with 
the view that there must be a fixed and definite limitation to the lia- 
bility of manufacturers and vendors for negligence in the construction 
and sale of complicated machines and structures which are to be 
operated or used by the intelligent and the ignorant, the skilful and 
and the incompetent, the watchful and the careless, parties that can- 
not be known to the manufacturers or vendors, and who use the 
articles all over the coimtry hundreds of miles distant from the place 
of their manufacture or original sale, a general rule has been adopted 
and has become established by repeated decisions of the courts of 
England and of this country that in these cases the liability of the 
contractor or manufacturer for negligence in the construction or sale 
of the articles which he makes or vends is limited to the persons to 
whom he is liable under his contracts of construction or sale. The 
limits of the liability for negligence and for breaches of contract in 
cases of this character are held to be identical. The general rule is 
that a contractor, manufacturer, or vendor is not liable to third par- 
ties who have no contractual relations with him for negligence in the 
construction, manufacture, or sale of the articles he handles. Winter- 
bottom V. Wright, 10 M. & W. 109; Longmeid v. HoUiday, 6 Exch. 
764, 765; Blakemore v. Ry. Co., 8 El. & Bl. 1035; Collis v. Selden, 
L. R. 3 C. P. 495, 497; Bank v. Ward, 100 U. S. 195, 204, 25 L. Ed. 
621; Bragdon v. Perkms-Campbell Co., 87 Fed. 109, 30 C. C. A. 
567; Goodlander v. Standard Oil Co., 63 Fed. 400, 406, 11 C. C. A. 
253, 259, 27 L. R. A. 583; Loop v, Litchfield, 42 N. Y. 351, 359, 1 Am. 
Rep. 513; Losee v. Clute, 51 N. Y. 494, 10 Am. Rep. 623; Curtain v, 
Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 
220; Heizer v, Kingsland & Douglass Mfg. Co., 110 Mo. 605, 615, 617, 
19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 481; Daugherty v. 
Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 
204; Burkev.De Castro, 11 Hun, 354; Swan r. Jackson, 55 Hun, 194, 
7 N. Y. Supp. 821; Barrett v. Mfg. Co., 31 N. Y. Super. Ct. 545; 
Carter v. Harden, 78 Me. 528, 7 Atl. 392; McCaffrey v. Mfg. Co., 
(R. I.) 50 Atl. 651, 55 L. R. A. 822; Marvin Safe Co. v. Ward, 46 
N. J. Law, 19; Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767; 



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238 HUSET V. CASE THRESHING MACHINE CO. [CHAP. U. 

Davidson v. Nichols, 11 Allen, 514; J. I. Case Plow Works v. Niles & 
Scott Co., (Wis.) 63 N. W. 1013. 

In these cases third parties, without any fault on their part, wfere 
injured by the negligence of the manufacturer, vendor, or furnisher of 
the following articles, while the parties thus injured were innocently 
using them for the purposes for which they were made or furnished, 
and the courts held that there could be no recovery, because the 
makers, vendors, or furnishers owed no duty to strangers to their 
contracts of construction, sale, or fiunishing. A stagecoach. Winter- 
bottom V. Wright, 10 M. & W. 109; a leaky lamp, Longmeid v. HoUi- 
day, 6 Exch. 764, 765; a defective chain furnished one to lead stone, 
Blakemore v, Ry Co., 8 El. & Bl. 1035; an improperly hung chan- 
delier, Collis V. Selden, L. R. 3 C. P. 495, 497; an attorney's certifi- 
cate of title. Bank v. Ward, 100 U. S. 195, 204, 25 L. Ed. 621 ; a defec- 
tive valve in an oil car, Goodlander v. Standard Oil Co., 63 Fed. 401, 
406, 11 C. C. A. 253, 259, 27 L. R. A. 583; a porch on a hotel. Curtain 
V. Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 
220; a' defective side saddle, Bragdon v. Perkins-Campbell Co., 87 
Fed. 109, 30 C. C. A. 567; a defective rim in a balance wheel. Loop v. 
Litchfield, 42 N. Y. 351, 359, 1 Am. Rep. 513; a defective boiler, 
Losee v, Clute, 51 N. Y. 494, 10 Am. Rep. 623; a defective cylinder 
in a threshing machine, Heizer v, Kingsland & Douglass Mfg. Co., 
110 Mo. 605, 615, 617, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 
481 ; a defective wall which fell on a pedestrian, Daugherty v. Herzog, 
145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204; a 
defective rope on a derrick, Burke v. Refining Co., 11 Him, 354; a 
defective shelf for a workman to stand upon in placing ice in a box, 
Swan V, Jackson, 55 Hun, 194, 7 N. Y. Supp. 821 ; a defective hoisting 
rope of an elevator, Barrett v. Mfg. Co., 31 N. Y. Super. Ct. 545; a 
runaway horse. Carter v. Harden, 78 Me. 528, 7 Atl. 392; a defective 
hook holding a heavy weight in a drop press, McCaffrey v, Mfg. Co., 
(R. I.) 50 Atl. 651, 55 L. R. A. 822; a defective bridge, Marvm Safe 
Co. V. Ward, 46 N. J. Law, 19; shelves in a dry goods store, whose fall 
injured a customer, Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 
767; a staging erected by a contractor for the use of his employees, 
McGuire v, McGee, (Pa.) 13 Atl. 551; defective wheels, J. I. Case 
Plow Works V, Niles & Scott Co., (Wis.) 63 N. W. 1013. 

In the leading case of Winterbottom v. Wright this rule is placed 
upon the ground of public policy, upon the ground that there would 
be no end of litigation if contractors and manufacturers were to be 
held liable to third persons for every act of negligence in the construc- 
tion of the articles or machines they make after the parties to whom 
they have sold them have received and accepted them. In that case 
the defendant had made a contract with the Postmaster-General to 
provide and keep in repair the stage-coach used to convey the mail 
from Hartford to Holyhead. The coach broke down, overturned. 



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SECT. Vn.] HUSET V. CASE THRESHING MACHINE CO. 239 

and injured the driver, who sued the contractor for the injury re- 
sulting from his negligence. Lord Abinger, C. B., said: 

" There is no privity of contract between these parties; and, if 
the plaintiff can sue, every passenger, or even any person passing 
along the road, who was injured by the upsetting of the coach, might 
bring a similar action. Unless we confine the operation of such con- 
tracts as this to the parties who entered into them, the most absurd 
and outrageous consequences, to which I can see no limit, would 
ensue." 

Baron Alderson said: 

" I am of the same opinion. The contract in this case was made 
with the Postmaster-General alone; and the case is just the same as if 
he had come to the defendant and ordered a carriage, and handed it at 
once over to Atkinson. If we were to hold that the plaintiff could 
sue in such a case, there is no point at which such actions would stop. 
The only safe rule is to confine the right to recover to those who enter 
into the contract. If we go one step beyond that, there is no reason 
why we should not go fifty." 

The views expressed by the judges in this case have prevailed in 
England and in the United States, with the exception of two decisions 
which are in conflict with the leading case and with all the decisions 
to which reference has been made. Those cases are Devlin v. Smith, 
89 N. Y. 470, 42 Am. Rep. 311, in which Smith, a painter, employed 
Stevenson, a contractor, to build a scaffold 90 feet in height, for the 
express purpose of enabling the painter's workmen to stand upon it 
to paint the interior of the dome of a building, and the Court of 
Appeals of New York held that Stevenson was liable to a workman of 
Smith, the painter, who was injured by a faU, caused by the negli- 
gence of Stevenson in the construction of the scaffold upon which 
he was working; and Schubert v, J. R. Clark Co., 49 Minn. 331, 51 
N. W. 1103, 15 L. R. A. 818, 32 Am. St. Rep. 559, in which a painter 
purchased of a manufacturer a stepladder, and one of the painter's 
employees, who was injured by the breaking of a step caused by the 
ne^igence of the manufactiurer, was permitted to recover of the latter 
for the injuries he had sustained. The decision in Devlin v. Smith 
may, perhaps, be sustained on the ground that the workmen of Smith 
were the real parties in interest in the contract, since Stevenson was 
employed and expressly agreed to construct the scaffold for their use. 
But the case of Schubert v. J. R. Clark Co. is in direct conflict with 
the side saddle case, Bragdon v. Perkins-Campbell Co., 87 Fed. 109, 
30 C. C. A. 567; the porch case, Curtain v. Somerset, 140 Pa. 70, 21 
Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 220; the defective cylinder 
case, Heizerv. Kingsland & Douglass Mfg. Co., 110 Mo. 617, 19 S. W. 
630, 15 L. R. A. 821, 33 Am. St. Rep. 481 ; the defective hook case, 
McCaffrey v. Mfg. Co., (R. I.) 50 Atl. 651, 55 L. R. A. 822; and with 
the general rule upon which all these cases stand. 



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240 HUSET V. CASE THRESHING MACHINE CO. [CHAP. H* 

It is, perhaps, the more remarkable that the omrent of decisions 
throughout all the courts of England and the United States should be 
so uniform and conclusive in support of this rule, and that there 
should, in the multitude of opinions, be but one or two in conflict 
with it, than it is that such sporadic cases should be found. They are 
insufficient in themselves, or in the reasoning they contain, to over- 
throw or shake the established rule which prevails throughout the 
English-speaking nations. 

But while this general rule is both established and settled, there 
are, as is usually the case, exceptions to it as well defined and settled 
as the rule itself. There are three exceptions to this rule. 

The first is that an act of negligence of a manufacturer or vendor 
which is imminently dangerous to the life or health of mankind, and 
which is committed in the preparation or sale of an article intended 
to preserve, destroy, or affect human life, is actionable by third par- 
ties who suffer from the negligence. Dixon v. Bell, 5 Maule & Sel. 
198; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Norton 
V. Sewall, 106 Mass. 143, 8 Am. Rep. 298; EUdns v. McKean, 79 Pa. 
493, 502; Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 
715; Peters v. Johnson, (W. Va.) 41 S. E. 190, 191, 57 L. R. A. 428. 
The leading case upon this subject is Thomas v. Winchester, 6 N. Y. 
397, 57 Am. Dec. 455. A dealer in drugs sold to a druggist a jar of 
belladonna, a deadly poison, and labelled it " Extract of Dandelion." 
The druggist filled a prescription of extract of dandelion, prepared by 
a physician for his patient. The patient took the prescription thus 
filled, and recovered of the wholesale dealer for the injuries she sus- 
tained. In Norton v. Sewall, 106 Mass. 143, 8 Am. Rep. 298, a re- 
covery was had by a third party for the sale of laudanum as rhubarb; 
in Bishop v, Weber, for the furnishing of poisonous food for wholesome 
food; in Peters v. Johnson, for the sale of saltpetre for epsom salts; 
and in Dixon v. Bell, for placing a loaded gun in the hands of a child. 
In all these cases of sale the natural and probable result of the act of 
negligence — nay, the inevitable result of it — was not an injury to 
the party to whom the sales were made, but to those who, after the 
purchasers had disposed of the articles, should consume them. Hence 
these cases stand upon two well-established principles of law: (1) 
That every one is bound to avoid acts or omissions imminently dan- 
gerous to the lives of others, and (2) that an injury which is the 
natural and probable result of an act of negligence is actionable. It 
was the natural and probable result of the negligence in these cases 
that the vendees would not suffer, but that those who subsequently 
purchased the deleterious articles would sustain the injuries resulting 
from the negligence of the manufactiu^rs or dealers who furnished 
them. 

The second exception is that an o\^er's act of negligence which 
causes injury to one who is invited by him to use his defective appli- 



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SECT. VII.] HUSET V. CASE THRESHING MACHINE CO. 241 

ance upon the owner's premises may form the basis of an action 
against the owner. Coughtry v. Globe Woolen Co., 66 N. Y. 124, 
15 Am. Rep. 387; Bright v. Bamett & Record Co., (Wis.) 60 N. W. 
418, 420, 26 L. R. A. 524; Heaven v. Pender, L. R. 11 Q. B. Div. 
503; Roddy v. Railway Co., 104 Mo. 234, 241, 15 S. W. 1112, 12 
L. R. A. 746, 24 Am. St. Rep. 333. In Coughtry v. Globe Woolen Co., 
56 N. Y. 124, 15 Am. Rep. 387, the owner of a building employed 
Osbom & Martin to construct a cornice, and agreed with them to 
furnish a scaffold upon which their men could perform the work. He 
furnished the scaffold and one of the employees of the contractors was 
injured by the negligence of the owner in constructing the scaffold. 
The court held that the act of the owner was an impUed invitation to 
the employees of Osbom & Martin to use the scaffold and imposed 
upon him a liabiUty for negligence in its erection. The other cases 
cited to this exception are of a similar character. 

The third exception to the rule is that one who sells or delivers an 
article which he knows to be imminently dangerous to life or limb to 
another without notice of its qualities is liable to any person who suffers 
an injury therefrom which might have been reasonably anticipated, 
whether there were any contractual relations between the parties or 
not. Langridge v. Levy, 2 M. & W. 519, 4 M. & W. 337; Wellington 
V. Oil Co., 104 Mass. 64, 67; Lewis v. Terry, (Cal.) 43 Pac. 398. In 
Langridge v. Levy, 2 M. & W. 519, a dealer sold a gun to the father 
for the use of the son, and represented that it was a safe gun, and made 
by one Nock. It was not made by Nock, waa a defective gun, and 
when the son discharged it, it exploded and injured him. The son was 
permitted to recover, because the defendant had knowingly sold the 
gun to the father for the purpose of being used by the plaintiff by 
loading and discharging it, and had knowingly made a false warranty 
that this might be safely done, and the plaintiff, on the faith of that 
warranty, and believing it to be true, had used the gun, and sustained 
the damages. The court said in conclusion: 

" We therefore think that, as there is fraud, and damage, the result 
of that fraud, not from an act remote and consequential, but one con- 
templated by the defendant at the time as one of its results, the party 
guilty of the fraud is responsible to the party injured." 

This case was aflSrmed in 4 M. & W. 337, on the ground that the 
sale of the gun to the father for the use of the son with the knowledge 
that it was not aa represented was a fraud, which entitled the son to 
recover the damages he had sustained. 

In Wellington v. Oil Co., the defendants knowingly sold to one 
Chase, a retail dealer, to be sold by him to his customers as oil, 
naphtha, a dangerous and explosive liquid. Chase sold the naphtha 
as oil, the plaintiff used it in a lamp for illimiinating purposes, it 
ignited and exploded, and he recovered of the wholesale dealer. Judge 
Gray, later Mr. Justice Gray of the Supreme Court, said: 



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242 HUSET V. CASE THRESHING MACHINE CO. [CHAP. IL 

" It is well settled that a man who delivers an article, which he 
knows to be dangerous or noxious, to another person, without notice of 
its nature and qualities, is liable for an injury which may reasonably 
be contemplated as likely to result, and which does in fact result there- 
from to that person or any other who is not' himself in fault. Thus a 
person who delivers a carboy, which he knows to contain nitric acid, 
to a carrier, without informing him of the natiu^ of its contents, is 
liable for an injury occasioned by the leaking out of the acid upon 
another carrier, to whom it is delivered by the first in the ordinary 
course of business, to be carried to its destination. Farrant v. Barnes, 
11 C. B. (n. s.) 553. So a chemist who sells a bottle of liquid, made 
up of ingredients known only to himself, representing it to be fit to be 
used for washing the hair, and knowing that it is to be used by the 
purchaser's wife, is liable for an injury occasioned to her by using it 
for washing her hair. George v, Skivington, Law Rep. 5 Ex. 1." 

In Lewis v, Terry, (Cal.) 43 Pac. 398, a dealer, knowing a folding 
bed to be defective and unsafe, sold it to a Mr. Apperson without in- 
forming him of the fact. His wife suffered a broken arm and other 
severe injuries from the negligence of the dealer in the sale of the 
bed, and recovered of him the damages she sustained. 

The Supreme Court of Missouri, in Heizer v. Kingsland & Doug- 
lass Mfg. Co., in which they held that the manufacturer was not liable 
to a third person for negligence in the construction of the cylinder of 
a threshing machine, which burst and injured him, said: 

'' Had the defendant sold this machine to Ellis, knowing that the 
cylinder was defective, and for that reason dangerous, without in- 
forming him of the defect, then the defendant would be liable even to 
third persons not th^nselves in fault. Shearman & Redfield on 
Negligence, (4th ed.) § 117." 

Turning now to the case in hand, it is no longer diflScult to dispose 
of it. The allegations of the complaint are that the defendant pre- 
pared a covering for the cylinder of the threshing machine, which 
was customarily and necessarily used by those who operated it to walk 
upon, and which was so incapable of sustaining the least weight that 
it would bend and collapse whenever any one stepped upon it; that 
it concealed this defective and dangerous condition of the threshing 
rig so that it could not be readily discovered by persons engaged in 
operating or working upon it; that it knew that the machine was in 
this imminently dangerous condition when it shipped and supplied it 
to the employer of the plaintiff; and that the plaintiff has sustained 
serious injury through this defect in its construction. The case falls 
fairly within the third exception. It portrays a negligence immi- 
nently dangerous to the lives and limbs of those who should use the 
machine, a machine inmiinently dangerous to the lives and limbs of 
all who should undertake to operate it, a concealment of this danger- 
ous condition, a knowledge of the defendant when it was shipped and 



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SECT. Vn.] HEAVEN V. PENDER 243 

supplied to the employer of the plaintiff that the rig was imminently 
dangerous to all who should use it for the purpose for which it was 
made and sold, and consequent damage to the plaintiff. It falls di- 
rectly within the rule stated by Mr. Justice Gray that when one de- 
livers an article, which he knows to be dangerous to another person, 
without notice of its nature and qualities, he is liable for an injury 
which may be reasonably contemplated as likely to result, and which 
does in fact result therefrom, to that person or to any other who is not 
himself in fault. The natural, probable, and inevitable result of the 
negligence portrayed by this complaint in delivering this machine 
when it was known to be in a condition so imminently dangerous to 
the lives and limbs of thosie who should undertake to use it for the pur- 
pose for which it was constructed was the death, or loss of one or more 
of the limbs, of some of the operators. It is perhaps improbable that 
the defendant was possessed of the knowledge of the imminently 
datngerous character of this threshing machine when it delivered it, 
and that upon the trial of the case it will be found to fall under the 
general rule which has been announced in an earlier part of this 
opinion. But upon the facts alleged in this complaint, the act of 
deUvering it to the purchaser with a knowledge and a concealment of 
its dangerous condition was so flagrant a disregard of the rule that one 
is bound to avoid any act imminently dangerous to the lives and 
health of his fellows that it forms the basis of a good cause of action in 
favor of any one who sustained injury therefrom. 

The judgment of the Circuit Court must be reversed, and the cause 
must be remanded to the court below for further proceedings not 
inconsistent with the views expressed in this opinion. 



HEAVEN V. PENDER 

In the Court of Appeal, July 30, 1883. 

Reported in 11 Queen's Bench Division^ 503. 

Action to recover damages for injuries alleged to have been sus- 
tained by the plaintiff through the negligence of the defendant. The 
County Court judge gave judgment for the plaintiff. The Queen's 
Bench Division, on appeal, ordered judgment for defendant. The 
plaintiff appealed to the Comrt of Appeal.* 

Brett, M. R. In this case the plaintiff was a workman in the em- 
ploy of Gray, a ship-painter. Gray entered into a contract with a 
ship-owner whose ship was in the defendant's dock to paint the out- 
side of his ship. The defendant, the dock-owner, supplied, under a 
contract with the ship-owner, an ordinary stage to be slung in the 
ordinary way outside the ship for the purpose of painting her. It 

* Arguments omitted. 



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244 HEAVEN V. PENDER [CHAP. n. 

must have been known to the defendant's servants, if they had con- 
sidered the matter at all, that the stage would be put to immediate 
use, that it would not be used by the ship-owner, but that it would be 
used by such a person as the plaintiff, a working ship-painter. The 
ropes by which the stage was slung, and which were supplied as a part 
of the instnunent by the defendant, had been scorched and were unfit 
for use, and were supplied without a reasonably careful attention to 
their condition. When the plaintiff began to use the stage the ropes 
broke, the stage fell, and the plaintiff was injiu^d. The Divisional 
Court held that the plaintiff could not recover against the defendant. 
The plaintiff appealed. The action is in form and substance an action 
for negligence. That the stage was, through want of attention of the 
defendant's servants, supplied in a state unsafe for use is not denied. 
But want of attention amounting to a want of ordinary care is not a 
good cause of action although injury ensue from such want, unless 
the person charged with such want of ordinary care had a duty to the 
person complaining to use ordinary care in the matter called in ques- 
tion. Actionable negligence consists in the neglect of the use of ordi- 
nary care or skill toward a person to whom the defendant owes the 
duty of observing ordinary care and skill, by which neglect the plain- 
tiff, without contributory negligence on his part, has suffered injury 
to his person or property. The question in this case is whether the 
defendant owed such a duty to the plaintiff. 

If a person contracts with another to use ordinary care or skill to- 
ward him or his property, the obligation need not be considered in 
the light of a duty; it is an obligation of contract. It is undoubted, 
however, that there may be the obligation of such a duty from one 
person to another although there is no contract between them with 
regard to such duty. Two drivers meeting have no contract with each 
other, but under certain circumstances they have a reciprocal duty 
toward each other. So two ships navigating the sea. So a railway 
company which has contracted with one person to carry another has 
no contract with the person carried, but has a duty toward that per- 
son. So the owner or occupier of a house or land who permits a person 
or persons to come to his house or land has no contract with such per- 
son or persons, but haa a duty toward him or them. It should be ob- 
served that the existence of a contract between two persons does not 
prevent the existence of the suggested duty between them also being 
raised by law independently of the contract, by the facts with regard to 
which the contract is made and to which it applies an exactly similar 
but a contract duty. We have not in this case to consider the circum- 
stances in which an implied contract may arise to use ordinary care 
and skill to avoid danger to the safety of person or property. We have 
not in this case to consider the question of a fraudulent misrepresenta- 
tion, express or implied, which is a well-recognized head of law. The 
questions which we have to solve in this case are: What is the proper 



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SECT. VII.] HEAVEN V. PENDER 245 

definition of the relation between two persons other than the relation 
established by contract, or fraud, which imposes on one of them a 
duty toward the other to observe, with regard to the person or prop- 
erty of such other, such ordinary care or skill as may be necessary to 
prevent injury to his person or property; and whether the present 
case falls within such definition ? When two drivers or two ships are 
approaching each other, such a relation arises between them when 
they are approaching each other in such a manner that, imless they 
use ordinary care and skill to avoid it, there will be danger of an 
injurious collision between them. This relation is established in such 
circumstances between thetn, not only if it be proved that they 
actually know and think of this danger, but whether such proof be 
made or not. It is established, as it seems to me, because any one of 
ordinary sense who did think would at once recognize that if he did 
not use ordinary care and skill imder such circiunstances there would 
be such danger. And every one ought, by the universally recognized 
rules of right and wrong, to think so much with regard to the safety of 
others who may be jeopardized by his conduct; and if, being in such 
circumstances, he does not think, and in consequence neglects, or if he 
n^ects to use ordinary care and skill, and injury ensue, the law, 
which takes cognizance of and enforces the rules of right and wrong, 
will force him to give an indemnity for the injury. In the case of a 
railway company carrying a passenger with whom it has not entered 
into the contract of carriage, the law implies the duty, because it 
must be obvious that unless ordinary care and skill be used the per- 
sonal safety of the passenger must be endangered. With regard to 
the condition in which an owner or occupier leaves his house or prop- 
erty other phraseology has been used, which it is necessary to consider. 
If a man opens his shop or warehouse to customers it is said that he 
invites them to enter, and that this invitation raises the relation be- 
tween them which imposes on the inviter the duty of using reasonable 
care so to keep his house or warehouse that it may not endanger the 
person or property of the person invited. This is in a sense an accu- 
rate phrase, and as applied to the circumstances a suflSciently accurate 
phrase. Yet it is not accurate if the word " invitation " be used in 
its ordinary sense. By opening a shop you do not really invite, you 
do not ask A. B. to come in to buy; you intimate to him that if it 
pleases him to come in he will find things which you are willing to 
sell. So in the case of shop, warehouse, road, or premises, the phrase 
has been used that if you permit a person to enter them you impose 
on yourself a duty not to lay a trap for him. This, again, is in a sense 
a true statement of the duty arising from the relation constituted by 
the permission to enter. It is not a statement of what causes the 
relation which raises the duty. What causes the relation is the per- 
mission to enter and the entry. But it is not a strictly accurate state- 
ment of the duty. To lay a trap means in ordinary language to do 



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246 HEAVEN V. PENDER [CHAP. II. 

something with an intention. Yet it is clear that the duty extends to 
a danger the result of negligence without intention. And with regard 
to both these phrases, though each covers the circumstances to which 
it is particularly applied, yet it does not cover the other set of cir- 
cumstances from which an exactly similar legal liability is inferred. 
It follows, as it seems to me, that there must be some larger proposi- 
tion which involves and covers both sets of circumstances. The logic 
of inductive reasoning requires that where two major propositions 
lead to exactly similar minor premises there must be a more remote 
and larger premise which embraces both of the major propositions. 
That, in the present consideration, is, as it seems to me, the same 
proposition which will cover the similar legal liability inferred in the 
cases of collision and carriage. The proposition which these recog- 
nized cases suggest, and which is, therefore, to be deduced from them, 
is that whenever one person is by circumstances placed in such a posi- 
tion with regard to another that every one of ordinary sense who did 
think would at once recognize that if he did not use ordinary care and 
skill in his own conduct with regard to those circumstances he would 
cause danger of injury to the person or property of the other, a duty 
arises to use ordinary care and skill to avoid such danger. Without 
displacing the other propositions to which allusion has been made as 
applicable to the particular circumstances in respect of which they 
have been enunciated, this proposition includes, I think, all the recog- 
nized cases of liability. It is the only proposition which covers them 
all. It may, therefore, safely be aflSrmed to be a true proposition, 
unless some obvious case can be stated in which the liability must be 
admitted to exist, and which yet is not within this proposition. There 
is no such case. Let us apply this proposition to the case of one person 
supplying goods or machinery or instruments or utensils, or the like, 
for the purpose of their being used by another person, but with whom 
there is no contract as to the supply. The proposition will stand thus : 
whenever one person supplies goods, or machinery, or the like, for the 
purpose of their being used by another person under such circum- 
stances that every one of ordinary sense would, if he thought, recog- 
nize at once that unless he used ordinary care andskill with regard to 
the condition of the thing supplied or the mode of supplying it, there 
will be danger of injury to the person or property of him for whose use 
the thing is supplied and who is to use it, a duty arises to use ordinary 
care and skill as to the condition or manner of supplying such thing. 
And for a neglect of such ordinary care or skill whereby injury hap- 
pens, a legal liability arises to be enforced by an action for negligence. 
This includes the case of goods, etc., supplied to be used inmiediately 
by a particular person or persons, or one of a class of persons, where it 
would be obvious to the person suppljring, if he thought that the goods 
would in all probability be used at once by such persons before a rea- 
sonable opportunity for discovering any defect which might exist, and 



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SECT. VII.] HEAVEN V. PENDER 247 

where the thing supplied would be of such a nature that neglect of 
ordinary care or skill as to its condition or the manner of supplying it 
would probably cause danger to the person or property of the person 
for whose use it was supplied, and who was about to use it. It would 
exclude a case in which the goods are supplied under circumstances in 
which it would be a chance by whom they would be used or whether 
they would be used or not, or whether they would be used before there 
would probably be means of observing any defect, or where the goods 
would be of such a nature that a want of care or skill as to their con- 
dition or the manner of supplying them would not probably produce 
danger of injiuy to person or property. The cases of vendor and 
purchaser and lender and hirer under contract need not be consid- 
ered, as the liability arises under the contract, and not merely as a 
duty imposed by law, though it may not be useless to observe that 
it seems diflScult to import the impUed obligation into the contract 
except in cases in which if there were no contract between the 
parties the law would, according to the rule above stated, imply the 
duty. 

Examining the rule which has been above enunciated with the cases 
which have been decided with regard to goods supplied for the purpose 
of being used by persons with whom there is no contract, the first 
case to be considered is inevitably Langridge v. Levy, 2 M. & W. 519; 
4 id. 337. It is not an easy case to act upon. It is not, it cannot be, 
accurately reported; the declaration is set out; the evidence is as- 
simied to be reported; the questions left to the jury are stated. And 
then it is said tliat a motion was made to enter a nonsuit in pursuance 
of leave reserved on particular grounds. These grounds do not raise 
the question of fraud at all, but only the question of remoteness. And 
although the question of fraud se^pis in a sense to have been left to 
the jury, yet no question was, according to the report, left to them 
as to whether the plaintiff acted on the faith of the fraudulent mis- 
representation, which is, nevertheless, a necessary question in a case 
of fraudulent misrepresentation. The report of the argument makes 
the object of the argument depend entirely upon an assumed motion 
to arrest the judgment, which raises always a discussion depending 
entirely on the form of the declaration, and the effect on it of a ver- 
dict, in respect of which it is assumed that all questions were left to 
the jury. If this was the point taken the report of the evidence and 
of the questions left to the jury is idle! The case was decided on the 
groimd of a fraudulent misrepresentation as stated in the declaration. 
It is inferred that the defendant intended the representation to be 
communicated to the son. Why he should have such an intention in 
fact it seems diflScult to understand. His immediate object must 
have been to induce the father to buy and pay for the gun. It must 
have been wholly indifferent to him whether, after the sale and pay- 
ment, the gun would be used or not by the son. I cannot hesitate to 



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248 HEAVEN V. PENDER [CHAP. II. 

say that, in my opinion, the case is a wholly unsatisfactory case to act 
on as an authority. But taking the case to be decided on the groimd 
of a fraudulent misrepresentation made hypothetically to the son, 
and acted upon by him, such a decision upon such a ground in no 
way negatives the proposition that the action might have been sup- 
ported on the ground of negligence without fraud. It seems to be a 
case which is within the proposition enunciated in this judgment, and 
in which the action might have been supported without proof of actual 
fraud. And this seems to be the meaning of Cleasby, B., in the ob- 
servations he made on Langridge v. Levy, supra, in the case of George 
V. Skivington, L. R. 5 Ex. 1,5. In that case the proposition laid down 
in that judgment is clearly adopted. The ground of the decision is 
that the article was, to the knowledge of the defendant, supplied for 
the use of the wife and for her immediate use. And certainly, if he 
or any one in his position had thought at all, it must have been obvious 
that a want of ordinary care or skiU in preparing the prescription sold 
would endanger the personal safety of the wife. 

In Corby v. Hill, 4 C. B. (n* s.) 556, it is stated by the Lord Chief 
Justice that an allurement was held out to the plaintiff. And Willes, 
J., stated that the defendant had no right to set a trap for the plaintiflf. 
But in the form of declaration suggested by Willes, J., on p. 567, there 
is no mention of alliu^ment, or invitation or trap. The facts suggested 
in that form are, " that the plaintiff had license to go on the road, 
that he was in consequence accustomed and likely to pass along it, 
that the defendant knew of that custom and probability, that the 
defendant negUgently placed slates in such a manner as to be likely 
to prove dangerous to persons driving along the road, that the plaintiff 
drove along the road, being by reason of the license lawfully on the 
road, and that he was injured by the obstruction." It is impossible 
to state a case more exactly within the proposition laid down in this 
judgment. In Smith v. London & St. Katharine Docks Co., L. R. 
3 C. P. 326, the phrase is again used of invitation to the plaintiff by 
the defendants. Again, let it be observed that there is no objection 
to the phrase as applied to the case. But the real value of the phrase 
may not improperly be said to be that invitation impkjrts knowledge 
by the defendant of the probable use by the plaintiff of the article sup- 
plied, and therefore carries with it the relation between the parties 
which establishes the duty. In Indermaur v. Dames, L. R. 1 C. P. 274, 
L. R. 2 C. P. 311, reliance is again placed upon a supposed invitation 
of the plaintiff by the defendant. But, again, it is hardly possible to 
state facts which bring a case more completely within the definition of 
the present judgment. In Winterbottom v. Wright, 10 M. & W. 109, 
it was held that there was no duty cast upon the defendant with 
regard to the plaintiff. The case was decided on what waa equivalent 
to a general demurrer to the declaration. And the declaration does 
not seem to show that the defendant, if he had thought about it, must 



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SECT. VII.] HEAVEN V. PENDER 249 

have known, or ought to have known, that the coach would be neces- 
sarily or probably driven by the plaintiff, or by any class of which he 
could be said to be one, or that it would be so driven within any time 
which would make it probable that the defect would not be observed. 
The declaration relied too much on contracts entered into with other 
persons than the plaintiff. The facts alleged did not bring the case 
within the proposition herein enunciated. It was an attempt to estab- 
lish a duty toward all the world. The case was decided on the ground 
of remoteness. And it is as to too great a remotene&s that the observa- 
tion of Lord Abinger is pointed, when he sajrs that the doctrine of 
Langridge v. Levy, supra, is not to be extended. In Francis v. Cockrell, 
L. R. 5 Q. B. 501, the decision is put by some of the judges on an im- 
plied contract between the plaintiBf and the defendant. But Cleasby, 
B. (p. 615), puts it upon the duty raised by the knowledge of the de- 
fendant that the stand was to be used immediately by persons of 
whom the plaintiff was one. In other words, he acts upon the rule 
above laid down. In Collis v. Selden, L. R. 3 C. P. 495, it was held 
that the declaration disclosed no duty. And obviously, the declara- 
tion was too imcertain. There is nothing to show that the defendant 
knew more of the probability of the plaintiff rather than any other 
of the public being near the chandelier. There is nothing to show 
that the plaintiff was more likely to be in the public-house than any 
other member of the public. There is nothing to show how soon 
after the hanging of the chandelier any one might be expected or 
permitted to enter the room in which it was. The facts stated do not 
bring it within the rule. There is an American case: Thomas v. 
Winchester, 6 N. Y. 397, 57 Am. Dec. 455, cited in Mr. Horace 
Smith's Treatise on the Law of Negligence, p. 88, note (t), which 
goes a very long way. I doubt whether it does not go too far. In 
Longmeid v. Holliday, 6 Ex. 761, a lamp was sold to the plaintiff to 
be used by the wife. The jury were not satisfied that the defendant 
knew of the defect in the lamp. If he did, there was fraud; if he did 
not, there seems to have been no evidence of negligence. If there was 
fraud, the case was more than within the rule. If there was no fraud 
the case was not brought by other circumstances within the rule. In 
Gautret v. Egerton, L. R. 2 C. P. 374, the declaration was held by 
Willes, J., to be bad on demurrer, because it did not show that the 
defendant had any reason to suppose that persons going to the docks 
would not have ample means of seeing the holes and cuttings relied 
on. He does not say there must be fraud in order to support the action. 
He says there must be something like fraud. He sajrs: " Every man 
is bound not wilfully to deceive others." And then, in the alternative, 
he sajrs: " or to do any act which may place them in danger." There 
seems to be no case in conflict with the rule above deduced from well 
admitted cases. I am, therefore, of opinion that it is a good, safe, 
and just rule. 



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250 HEAVEN V. PENDER [CHAP. U. 

I cannot conceive that if the facts were proved which would make 
out the proposition I have enunciated, the law can be that there would 
be no liability. Unless that be true, the proposition must be true. 
If it be the rule the present case is clearly within it. This case is also, 
I agree, within that which seems to me to be a minor proposition, 
namely, the proposition which has been often acted upon, that there 
was in a sense an invitation of the plaintiff by the defendant to use the 
stage. The appeal must, in my opinion, be allowed, and judgment 
must be entered for the plaintiff. 

Cotton, L. J. Bowbn, L. J., concius in the judgment I am about 
to read. [The opinion holds defendant liable, on the groimd that he 
must be considered as having invited the workman to use the dock 
and all appliances provided by the dock-owner as incident to the use 
of the dock; and that he was imder obligation to take reasonable care 
that at the time the appliances provided for immediate use in the 
dock were furnished by him they were in a fit state to be used. The 
opinion then proceeds as follows: — ] 

This decides this appeal in favor of the plaintiff, and I am unwilling 
to concur with the Master of the Rolls in laying down unnecessarily 
the larger principle which he entertains, inasmuch as there are many 
cases in which the principle was impliedly n^atived. 

Take, for instance, the case of Langridge v. Levy, dupra, to which 
the principle, if it existed, would have applied. But the judges who 
decided that case based their judgment on the fraudulent representa- 
tion made to the father of the plaintiff by the defendant. In other 
cases where the decision has been referred to, judges have treated 
fraud as the ground of the decision; as was done by Coleridge, J., in 
Blackmore v, Bristol & Exeter Ry. Co., 8 E. & B. 1035; and in Collis 
V, Selden, L. R. 3 C. P. 495, Willes, J., says that the judgment in 
Langridge v. Levy, supra, was based on the fraud of the defendant. 
This impliedly negatives the existence of the larger general principle 
which is relied on, and the decisions in Collis v. Selden, supra, and in 
Longmeid v. HoUiday, supra (in each of which the plaintiff failed), 
are, in my opinion, at variance with the principle contended for. The 
case of George v, Skivington, supra, and especially what is said by 
Cleasby, B., in giving judgment in that case, seems to support the 
existence of the general principle. But it is not in terms laid down 
that any such principle exists, and the case was decided by Cleasby, 
B., on the ground that the negligence of the defendant which was his 
own personal negligence was equivalent, for the purposes of that 
action, to fraud, on which (as he said) the decision in Langridge v. 
Levy, supra, was based.^ 

In declining to concur in laying down the principle enunciated by 
the Master of the Rolls, I in no way intimate any doubt as to the 

* See an elaborate criticism of George v. Skivington, L. R. 5 Ex. 1, m Blacker v. 
Lake, 106 Law Times Rep. (n. s.) 533, 637. 



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SECT. Vn.] MacPHEKSON v. BXJICK MOTOR COMPANY 251 

principle that any one who leaves a dangerous instrument; as a gun, 
in such a way as to cause danger, or who without due warning sup- 
plies to others for use an instrument or thing which to his knowledge, 
from its construction or otherwise, is in such a condition as to cause 
danger, not necessarily incident to the use of such an instrument or 
thing, is liable for injury caused to others by reason of his negligent 
act. 

For the reasons stated I agree that the plaintiff is entitled to judg- 
ment, though I do not entirely concur with the reasoning of the 
Master of the Rolls. Judgment reversed. 



MacPHERSON v. BUICK MOTOR COMPANY 

Court op Appeals, New York, March 14, 1916. 

Reported in 217 New York Reports, 382. 

Cardozo, J. The defendant is a manufactiu*er of automobiles. It 
sold an automobile to a retail dealer. The retail dealer resold to the 
plaintiff. While the plaintiff was in the car it suddenly collapsed. 
He was thrown out and injured. One of the wheels was made of de- 
fective wood, and its spokes crumbled into fragments. The wheel 
was not made by the defendant; it was bought from another manu- 
facturer. There is evidence, however, that its defects could have been 
discovered by reasonable inspection, and that inspection was omitted. 
There is no claim that the defendant knew of the defect and wilfully 
concealed it. The case, in other words, is not brought within the rule 
of Kuelling v. Lean Mfg. Co., 183 N. Y. 78, 75 N. E. 1098, 2 L. R. A. 
(n. s.) 303, 111 Am. St. Rep. 691, 5 Ann. Cas. 124. The charge is 
one, not of fraud, but of negUgence. The question to be determined is 
whether the defendaht owed a duty of care and vigilance to any one 
but the immediate purchaser. 

The foundations of this branch of the law, at least in this state, 
were laid in Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455. 
A poison was falsely labelled. The sale was made to a druggist, who 
in turn sold to a customer. The customer recovered damages from 
the seller who affixed the label. " The defendant's negligence," it was 
said, "put himian life in imminent danger." A poison, falsely 
labelled, is likely to injure any one who gets it. Because the danger is 
to be foreseen, there is a duty to avoid the injury. Cases were cited 
by way of illustration in which manufacturers were not subject to 
any duty irrespective of contract. The distinction was said to be 
that their conduct, though negUgent, was not likely to result in in- 
jury to any one except the purchaser. We are not required to say 
whether the chance of injury was always as remote as the distinction 
assumes. Some of the illustrations might be rejected to-day. The 
principle of the distinction is, for present purposes, the important 



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252 macpherson v. buick motor company [chap. II. 

thing. Thomas v, Winchester became quickly a landmark of the law. 
In the application of its principle there may, at times, have been 
uncertainty or even error. There has never in this state been doubt 
or disavowal of the principle itself. The chief cases are well known, 
yet to recall some of them will be helpful. Loop v. Litchfield, 42 
N. Y. 351, 1 Am. Rep. 513, is the earliest. It was ^e case of a defect 
in a small balance wheel used on a circular saw. The manufacturer 
pointed out the defect to the buyer, who wished a ch^p article and 
was ready to assume the risk. The risk can hardly have been an 
inmunent one, for the wheel lasted five years before it broke. In the 
meanwhile the buyer had made a lease of the machinery. It was held 
that the manufacturer was not answerable to the lessee. Loop v. 
Litchfield was followed in Losee v. Clute, 51 N. Y. 494, 10 Am, Rep. 
638, the case of the explosion of a steam boiler. That decision has 
been criticized (Thompson on Negligence, 233; Shearman & Red- 
field on Negligence, [6th ed.] § 117); but it must be confined to its 
special facts. It was put upon the ground that the risk of injury was 
too remote. The buyer in that case had not only accepted the boiler, 
but had tested it. The manufactiu^r knew that his own test was not 
the final one. The finality of the test has a bearing on the measure of 
diligence owing to persons other than the purchaser. Beven, Negli- 
gence, (3d ed.) pp. 50, 51, 54; Wharton, Negligence, (2d ed.) § 134. 

These early cases suggest a narrow construction of the rule. Later 
cases, however, evince a more liberal spirit. First in importance is 
Devlin v. Smith, 89 N. Y. 470, 42 Am. Rep. 311. The defendant, a 
contractor, built a scaffold for a painter. ITie painter's servants were 
injured. The contractor was held liable. He knew that the scaffold, 
if improperly constructed, was a most dangerous trap. He knew that 
it was to be used by the workmen. He was building it for that very 
purpose. Building it for their use, he owed them a duty, irrespective 
of his contract with their master, to build it with care. 

From Devlin v. Smith we pass over intermediate cases and turn to 
the latest case in this comrt in which Thomas v. Winchester was fol- 
lowed. That case is Statler v. Ray Mfg. Co., 195 N. Y. 478, 480, 
88 N. E. 1063. The defendant manufactiu^d a large coffee urn. It 
was installed in a restaurant. When heated, the urn exploded and 
injured the plaintiff. We held that the manufacturer was liable. 
We said that the urn " was of such a character inherently that, when 
applied to the purposes for which it was designed, it was liable to 
become a source of great danger to many people if not carefully and 
properly constructed." 

It may be that Devlin v. Smith and Statler v. Ray Mfg. Co. have 
extended the rule of Thomas v. Winchester. If so, this court is com- 
mitted to the extension. The defendant argues that things immi- 
nently dangerous to life are poisons, explosives, deadly weapons — 
things whose normal function it is to injure or destroy. But whatever 



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SECT. VIIO MacPHERSON V. BUICK MOTOR COMPANY 253 

the rule in Thomas v. Wmchester may once have been, it has no longer 
that restricted meaning. A scaffold (Devlin v. Smith, supra) is not 
inherently a destructive instnmient. It becomes destructive only if 
imperfectly constructed. A large coffee urn (Statler v. Ray Mfg. 
Co., supra) may have within itself, if negligently made, the potency 
of danger, yet no one thinks of it as an implement whose normal 
function is destruction. What is true of the coffee urn is equally true 
of bottles of aerated water. Torgesen v. Schultz, 192 N. Y. 166, 84 
N. E. 956, 18 L. R. A. (n. s.) 726, 127 Am. St. Rep. 894. We have 
mentioned only cases in this court. But the rule has received a like 
extension in our courts of intermediate appeal. In Biu-ke v, Ireland, 
26 App. Div. 487, 50 N. Y. Supp. 369, in an opmion by Cullen, J., it 
was applied to a builder who constructed a defective building; in 
Kahner v. Otis Elevator Co., 96 App. Div. 169, 89 N. Y. Supp. 185, 
to the manufacturer of an elevator; in Davies v. Pelham Hod Elevat- 
ing Co.,65 Hun, 573, 20 N. Y. Supp. 523, aflarmed in this court without 
opinion, 146 N. Y. 363, 41 N. E. 88, to a contractor who furnished a 
defective rope with knowledge of the purpose for which the rope was 
to be used. We are not required at this time either to approve or to 
disapprove the application of the rule that was made in these cases. It 
is enough that they help to characterize the trend of judicial thought. 

Devlin v. Smith was decided in 1882. A year later a very similar 
case came before the Court of Appeal in England (Heaven v. Pender, 
11 Q. B. D. 503). We find in the opinion of Brett, M. R., afterwards 
Lord Esher, the same conception of a duty, irrespective of contract, 
imposed upon the manufacturer by the law itself: 

" Whenever one person supplies goods or machinery, or the like, 
for the piu-pose of their being used by another person under such 
circumstences that every one of ordinary sense would, if he thought, 
recognize at once that imless he used ordinary care and skill with 
regard to the condition of the thing supplied, or the mode of supply- 
ing it, there will be danger of injury to the person or property of him 
for whose use the thing is supplied, and who is to use it, a duty arises 
to use ordinary care and skill as to the condition or manner of supply- 
ing such thing." 

He then points out that for a neglect of such ordinary care or skill 
whereby injury happens, the appropriate remedy is an action for 
negligence. Tlie right to enforce this liability is not to be confined 
to the immediate buyer. The right, he says, extends to the persons 
or class of persons for whose use the thing is supplied. It is enough 
that the goods " would in all probability be used at once . . . before 
a reasonable opportunity for discovering any defect which might 
exist," and that the thing supplied is of such a nature " that a neglect 
of ordinary care or skill as to its condition or the manner of supply- 
ing it would probably cause danger to the person or property of the 
person for whose use it was supplied, and who was about to use it." 



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254 MacPHERSON v. BUICK motor company [CHAP. II. 

On the other hand, he would exclude a case " in which the goods 
are supplied under circumstances in which it would be a chance by 
whom they would be used or whether they would be used or not, or 
whether they would be used before there would probably be means 
of observing any defect," or where the goods are of such a nature 
that " a want of care or skill as to their condition or the manner of 
supplying them would not probably produce danger of injury to per- 
son or property." What waa said by Lord Esher in that case did not 
command the full assent of his associates. His opinion has been 
criticized " as requiring every man to take aflSrmative precautions to 
protect his neighbors as well as to refrain from injuring them." 
Bohlen, Affirmative Obligations in the Law of Torts, 44 Am. Law 
Reg. (n. s.) 34L It may not be an accurate exposition of the law 
of England. Perhaps it may need some qualification even in our own 
state. Like most attempts at comprehensive definition, it may involve 
errors of inclusion and of exclusion. But its tests and standards, at 
least in their underlying principles with whatever qualification may 
be called for as they are applied to varying conditions, are the tests 
and standards of oiu- law. 

We hold, then, that the principle of Thomas v. Winchester is not 
limited to poisons, explosives, and things of like nature, to things 
which in their normal operation are implements of destruction. If 
the nature of a thing is such that it is reasonably certain to place life 
and limb in peril when negligently made, it is then a thing of danger. 
Its nature gives warning of the consequences to be expected. If to 
the element of danger there is added knowledge that the thing will 
be used by persons other than the purchaser, and used without new 
tests, then, irrespective of contract, the manufacturer of this thing of 
^ danger is under a duty to make it carefully. That is as far as we are 
required to go for the decision of this case. There must be knowledge 
of a danger, not merely possible, but probable. It is possible to use 
almost anything in a way that will taiake it dangerous if defective. 
That is not enough to charge the manufactiu^r with a duty inde- 
pendent of his contract. Whether a given thing is dangerous may 
be sometimes a question for the court and sometimes a question for 
the jury. There must also be knowledge that in the usual course of 
events the danger will be shared by others than the buyer. Such 
knowledge may often be inferred from the nature of the transaction. 
But it is possible that even knowledge of the danger and of the use 
will not always be enough. The proximity or remoteness of the rela- 
tion is a factor to be considered. We are dealing now with the lia- 
bility of the manufacturer of the finished product, who puts it on 
the market to be used without inspection by his customers. If he is 
negligent, where danger is to be foreseen, a liability will foUow. 

We are not required at this time to say that it is legitimate to go 
back of the manufacturer of the finished product and hold the manu- 



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SECT. VII.] MacPHERSON V. BUICK MOTOR COMPANY 255 

facturers of the component parts. To make their negligence a cause 
of imminent danger, an independent cause must often intervene; the 
manufacturer of the finished product must also fail in his duty of 
inspection. It may be that in those circumstances the negligence of 
the earlier members of the series is too remote to constitute, as to the 
ultimate user, an actionable wrong. Beven on Negligence, (3d ed.) 
50, 51, 54; Wharton on Negligence, (2d ed.) § 134; Leeds v, N. Y. 
Tel. Co., 178 N. Y. 118, 70 N. E. 219; Sweet v, Perkins, 196 N. Y. 
482, 90 N. E. 50; Hayes v, Hyde Park, 153 Mass. 514, 516, 27 N. E. 
522, 12 L. R. A. 249. We leave that question open. We shall have to 
deal with it when it arises. The difficulty which it suggests is not 
present in this case. Therie is here no break in the chain of cause and 
efifect. In such circumstances, the presence of a known danger, at- 
tendant upon a known use, makes vigilance a duty. We have put 
aside the notion that the duty to safeguard life and limb, when the 
consequences of negligence may be foreseen, grows out of contract and 
nothing else. We have put the source of the obligation where it ought 
to be. We have put its source in the law. 

From this survey of the decisions, there thus emerges a definition of 
the duty of a manufacturer which enables us to measure this defend- 
ant's liability. Beyond all question, the nature of an automobile gives 
warning of probable danger if its construction is defective. This 
automobile was designed to go 50 miles an hour. Unless its wheels 
were sound and strong, injury was almost certain. It was as much 
a thing of danger as a defective engine for a railroad. The defendant 
knew the danger. It knew also that the car would be used by persons 
other than the buyer. This was apparent from its size; there were 
seats for three persons. It was apparent also from the fact that the 
buyer was a dealer in cars, who bought to resell. The maker of this 
car supplied it for the use of purchasers from the dealer just as plainly 
as the contractor in Devlin v. Smith supplied the scaffold for use by 
the servants of the owner. The dealer was indeed the one person of 
whom it might be said with some approach to certainty that by him 
the car would not be used. Yet the defendant would have us say 
that he was the one person whom it was under a l^al duty to protect. 
The law does not lead us to so inconsequent a conclusion. Precedents 
drawn from the days of travel by stage-coach do not fit the conditions 
of travel to-day. The principle that the danger must be imminent 
does not change, but the things subject to the principle do change. 
They are whatever the needs of life in a developing civilization 
requires them to be. 

In reaching this conclusion, we do not ignore the decisions to the 
contrary in other jiuisdictions. It was held in Cadillac Co. v. John- 
son, 221 Fed. 801, 137 C. C. A. 279, L. R. A. 1915E, 287, that an 
autconobile is not within the rule of Thomas v. Winchester. There 
was, however, a vigorous dissent. Opposed to that decision is one of 



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256 MacPHERSON v. BUICK motor company [chap. II. 

the Court of Appeals of Kentucky. t)lds Motor Works v. Shaffer, 
145 Ky. 616, 140 S. W. 1047, 37 L. R. A. (n. s.) 560, Ann. Cas. 1913B, 
689. The earlier cases are summarized by Judge Sanborn in Huset v. 
J. I. Case Threshing Machine Co., 120 Fed. 865, 57 C. C. A. 237, 61 
L. R. A. 303. Some of them, at first sight inconsistent with our con- 
clusion, may be reconciled upon the ground that the negligence was 
too remote, and that another cause had intervened. But even when 
they cannot be reconciled the difference is rather in the application of 
the principle than in the principle itself. Judge Sanborn says, for 
example, that the contractor who builds a bridge, or the manufacturer 
who builds a car, cannot ordinarily foresee injury to other persons 
than the owner as the probable resiilt. 120 Fed. 865, at page 867, 57 
C. C. A. 237, at page 239, 61 L. R. A. 303. We take a different view. 
We think that injuryto others is to be foreseen not merelyas a possible, 
but as an almost inevitable result. See the trenchant criticism in 
Bohlen, supra, at page 351. Indeed, Judge Sanborn concedes that his 
view is not to be reconciled with our decision in Devlin v. Smith, supra. 
The doctrine of that decision has now become the settled law of this 
state, and we have no desire to depart from it. 

In England the limits of the rule are still unsettled. Winterbottom 
V, Wright, 10 M. & W. 109, is often cited. The defendant undertook 
to provide a mail coach to carry the mail bags. The coach broke down 
from latent defects in its construction. The defendant, however, was 
not the manufacturer. The court held that he was not liable for in- 
juries to a passenger. The case was decided on a demurrer to the 
declaration. Lord Esher points out in Heaven v. Pender, supra, at 
page 513, that the form of the declaration was subject to criticism. 
It did not fairly suggest the existence of a duty aside from the special 
contract which was the plaintiff's main reliance. See the criticism of 
Winterbottom v. Wright, in Bohlen, supra, at pages 281, 283. At aU 
events, in Heaven v, Pender, supra, the defendant, a dock owner, who 
put up a staging outside a ship, was held liable to the servants of the 
shipowner. In Elliot v. Hall, 15 Q. B. D. 315, the defendant sent out 
a defective truck laden with goods which he had sold. The buyer's 
servants unloaded it, and were injured because of the defects. It was 
held that the defendant was under a duty '* not to be guilty of negli- 
gence with regard to the state and condition of the truck." There 
seems to have been a return to the doctrine of Winterbottom v. Wright 
in Earl v, Lubbock, [1905] 1 K. B. 253. In that case, however, as 
in the earlier one, the defendant was not the manufacturer. He had 
merely made a contract to keep the van in repair. A later case (White 
V. Steadman, [1913] 3 K. B. 340, 348) emphasizes that element. A 
Uvery stable keeper who sent out a vicious horse was held liable, not 
merely to his customer, but also to another occupant of the carriage, 
and Thomas v. Winchester was cited and followed. White v. Stead- 
man, supra, at pages 348, 349. It was again cited and followed in 



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SECT. VII.] MacPHERSON V. BUICK MOTOR COMPANY 257 

Dominion Natural Gas Co. v. Collins, [1909] A. C. 640, 646. From 
these cases a consistent principle is with diflSculty extracted. The 
English courts, however, agree with ours in holding that one who 
invites another to make use of an appliance is bound to the exercise of 
reasonable care. Caledonian Ry. Co. v. Mulholland, [1898] A. C. 
216, 227; Indermaur v. Dames, L. R. 1 C. P. 274. That at bottom 
is the underlying principle of Devlin v. Smith. The contractor who 
builds the scaffold invites the owner's workmen to use it. The manu- 
facturer who sells the automobile to the retail dealer invites the deal- 
er's customers to use it. The invitation is addressed in the one case 
to determinate persons and in the other to an indeterminate class, 
but in each case it is equally plain, and in each its consequences must 
be the same. 

There is nothing anomalous in a rule which imp>oses upon A., who 
has contracted with B., a duty to C. and D. and others according as he 
knows or does not know that the subject-matter of the contract is in- 
tended for their use. We may find an analogy in the law which meas- 
ures the liability of landlords. If A. leases to B. a tumble-down 
house, he is not liable, in the absence of fraud, to B.'s guests who enter 
it and are injured. This is because B. is then under the duty to repair 
it, the lessor has the right to suppose that he will fulfill that duty, 
and, if he omits to do so, his guests must look to him. Bohlen, supra^ 
at page 276. But if A. leases a building to be used by the lessee at 
once as a place of public entertainment, the rule is different. There 
injury to persons other than the lessee is to be foreseen, and foresight 
of the consequences involves the creation of a duty. Junkermann v. 
TUyou R. Co., 213 N. Y. 404, 108 N. E. 190, L. R. A. 1915F, 700, 
and cases there cited. 

In this view of the defendant's liability there is nothing inconsistent 
with the theory of liability on which the case was tried. It is true 
that the court told the jury that " an automobile is not an inherently 
dangerous vehicle." The meaning, however, is made plain by the 
context. The meaning is that danger is not to be expected when the 
vehicle ig well constructed. The court left it to the jury to say whether 
the defendant ought to have foreseen that the car, if negligently con- 
structed, would become " imminently dangerous." Subtle distinc- 
tions are drawn by the defendant between things inherently dangerous 
and things imminently dangerous, but the case does not turn upon 
these verbal niceties. If danger was to be expected as reasonably 
certain, there was a duty of vigilance, and this whether you call the 
danger inherent or imminent. In varying forms that thought was 
put before the jury. We do not say that the court would not have 
been justified in ruling as a matter of law that the car was a danger- 
ous thing. If there was any error, it was none of which the defendant 
can complain. 



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258 MacPHERSON v. BUICK motor company [CHAP. II. 

We think the defendant was not absolved from a duty of inspection 
because it bought the wheels from a reputable manufacturer. It was 
not merely a dealer in automobiles. It was a manufacturer of auto- 
mobiles. It was responsible for the finished product. It was not at 
liberty to put the finished product on the market without subjecting 
the component parts to ordinary and simple tests. Richmond & 
Danville R. R. Co. v. Elliott, 149 U. S. 266, 272, 13 Sup. Ct. 837, 37 
L. Ed. 728. Under the charge of the trial judge nothing more was 
required of it. The obligation to inspect must vary with the nature of 
the thing to be inspected. The more probable the danger the greater 
the need of caution. 

There is Uttle analogy between this case and Carlson v. Phoenix 
Bridge Co., 132 N. Y. 273, 30 N. E. 750, where the defendant bought 
a tool for a servant's use. The making of tools was not the business in 
which the master was engaged. Reliance on the skill of the manufac- 
turer was proper and almost inevitable. But that is not the defend- 
ant's situation. Both by its relation to the work and by the nature of 
its business, it is charged with a stricter duty. 

Other rulings complained of have been considered, but no error has 
been found in them. 

The judgment should be aflBrmed, with costs. 

WiLLARD Bartlett, C. J. (dissenting) . The plaintiff was injured 
in consequence of the collapse of a wheel of an automobile manufac- 
tured by the defendant corporation which sold it to a firm of auto- 
mobile dealers in Schenectady, who in turn sold the car to the plaintiff. 
The wheel was purchased by the Buick Motor Company, ready made, 
from the Imperial Wheel Company of Flint, Mich., a reputable manu- 
facturer of automobile wheels which had furnished the defendant with 
80,000 wheels, none of which had proved to be made of defective wood 
prior to the accident in the present case. The defendant relied upon 
the wheel manufacturer to make all necessary tests as to the strength 
of the material therein, and made no such test itself. The present 
suit is an action for negligence, brought by the subvendee of the motor 
car against the manufacturer as the original vendor. The evidence 
warranted a finding by the jury that the wheel which collapsed was 
defective when it left the hands of the defendant. The automobile 
was being prudently operated at the time of the accident, and was 
moving at a speed of only eight miles an hour. There was no allega- 
tion or proof of any actual knowledge of the defect on the part of the 
defendant, or any suggestion that any element of fraud or deceit or 
misrepresentation entered into the sale. 

The theory upon which the case was submitted to the jury by the 
learned judge who presided at the trial was that, although an auto- 
mobile is not an inherently dangerous vehicle, it may become such if 
equipped with a weak wheel; and that if the motor car in question, 
when it was put upon the market was in itself inherently dangerous by 



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SECT. VII.] MacPHERSON V. BUICK MOTOR COMPANY 259 

reason of its being equipped with a weak wheel, the defendant was 
chargeable with a knowledge of the defect so far as it might be dis- 
covered by a reasonable inspection and the application of reasonable 
tests. This liability, it was further held, was not limited to the orig- 
inal vendee, but extended to a subvendee like the plaintiff, who was 
not a party to the original contract of sale. 

I tldnk that these rulings, which have been approved by the Ap- 
pellate Division, extend the liability of the vendor of a manufactured 
article further than any case which has yet received the sanction of 
this court. It has heretofore been held in this state that the liability 
of the vendor of a manufactured article for negligence arising out of 
the existence of defects therein does not extend to strangers injured 
in consequence of such defects, but is confined to the immediate ven- 
dee. The exceptions to this general rule which have thus far been 
recognized in New York are cases in which the article sold was of 
such a character that danger to life or limb was involved in the ordi- 
nary use thereof; in other words, where the article sold was inher- 
ently dangerous. As has already been pointed out, the learned trial 
judge instructed the jury that an automobile is not an inherently 
dangerous vehicle. 

The late Chief Justice Cooley of Michigan, one of the most learned 
and accurate of American law writers, states the general rule thus: 

" The general rule is that a contractor, manufacturer, vendor or 
furnisher of an article is not liable to third parties who have no con- 
tractual relations with him, for negligence in the construction, manu- 
facture or sale of such article." 2 Cooley on Torts, (3d ed.) 1486. 

The leading English authority in support of this rule, to which all 
the later cases on the same subject refer, is Winterbottom v. Wright, 
10 Meeson & Welsby, 109, which was an action by the driver of a 
stagecoach against a contractor who had agreed with the postmaster 
general to provide and keep the vehicle in repair for the purpose of 
conveying the royal mail over a prescribed route. The coach broke 
down and upset, injuring the driver, who sought to recover against 
the contractor on account of its defective construction. The Court of 
Exchequer denied him any right of recovery on the ground that there 
was no privity of contract between the parties, the agreement having 
been made with the postmaster general alone. 

" If the plaintiff can sue," said Lord Abinger, the Chief Baron, 
" every passenger or even any person passing along the road who was 
injured by the upsetting of the coach might bring a similar action. 
Unless we confine the operation of such contracts as this to the parties 
who enter into them the most absurd and outrageous consequences, 
to which I can see no limit, would ensue." 

The doctrine of that decision was recognized as the law of this 
state by the leading New York case of Thomas v. Winchester, 6 N. Y. 
397, 408, 57 Am. Dec. 455, which, however, involved an exception to 



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260 MacPHERSON v. BUICK motor company [chap. II. 

the general rule. There the defendant, who was a dealer in medicines, 
sold to a druggist a quantity of belladonna, which is a deadly poison, 
negligently labelled as extract of dandelion. The druggist in good 
faith used the poison in filling a prescription calling for the harmless 
dandelion extract, and the plaintiff for whom the prescription was put 
up was poisoned by the belladonna. This court held that the original 
vendor was liable for the injuries suffered by the patient. Chief Judge 
Ruggles, who delivered the opinion of the court, distinguished between 
an act of negligence imminently dangerous to the lives of others and 
one that is not so, saying: 

" If A. build a wagon and sell it to B., who sells it to C, and C. 
hires it to D., who in consequence of the gross negligence of A. in 
building the wagon is overturned and injured, D. cannot recover 
damages against A., the builder. A.'s obligation to build the wagon 
faithfully arises solely out of his contract with B. The public have 
nothing to do with it. . . . So, for the same reason, if a horse be 
defectively shod by a smith, and a person hiring the horse from the 
owner is thrown and injured in consequence of the smith's negligence 
in shoeing, the smith is not liable for the injury." 

In Torgesen v. Schultz, 192 N. Y. 156, 159, 84 N. E. 956, 18 L. R. A. 
(n. s.) 726, 127 Am. St. Rep. 894, the defendant was the vendor of 
bottles of aerated water which were charged under high pressure and 
likely to explode unless used with precaution when exposed to sudden 
changes of temperature. The plaintiff, who was a servant of the pur- 
chaser, was injured by the explosion of one of these bottles. There 
was evidence tending to show that it had not been properly tested in 
order to insure users against such accidents. We held that the defend- 
ant corporation was liable notwithstanding the absence of any con- 
tract relation between it and the plaintiff " under the doctrine of 
Thomas v, Winchester, sujrra^ and similar cases based .upon the duty 
of the vendor of an article dangerous in its nature or likely to become 
so in the course of the ordinary usage to be contemplated by the ven- 
dor, either to exercise due care to warn users of the danger or to take 
reasonable care to prevent the article sold from proving dangerous 
when subjected only to customary usage." 

The character of the exception to the general rule limiting liability 
for negligence to the original parties to the contract of sale, was still 
more clearly stated by Judge Hiscock, writing for the court in Statler 
V. Ray Manufacturing Co., 195 N. Y. 478, 482, 88 N. E. 1063, where 
he said that: 

" In the case of an article of an inherently dangerous nature, a 
manufacturer may become liable for a negligent construction which, 
when added to the inherent character of the appliance, makes it 
imminently dangerous, and causes or contributes to a resulting injury 
not necessarily incident to the use of such an article if properly 
constructed, but naturally following from a defective construction/' 



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c 



SECT. VII.] MacPHERSON V, BUICK MOTOR COMPANY 261 

In that case the injuries were inflicted by the explosion of a battery 
of steam-driven cofifee urns, constituting an appliance liable to become 
dangerous in the course of ordinary usage. 

The case of Devlin v. Smith, 89 N. Y. 470, 42 Am. Rep. 311, is 
cited as an authority in conflict with the view that the liability of the 
manufacturer and vendor extends to third parties only when the 
article manufactured and sold is inherently dangerous. In that case 
the builder of a scaffold 90 feet high, which was erected for the pur- 
pose of enabling painters to stand upon it, was held to be liable to the 
administratrix of a painter who fell therefrom and was killed, being 
at the time in the employ of the person for whom the scaffold was 
built. It is said that the scaffold, if properly constructed, was not 
inherently dangerous, and hence that this decision affirms the exist- 
ence of liability in* the case of an article not dangerous in itself, but 
made so only in consequence of negligent construction. Whatever 
logical force there may be in this view it seems to me clear from the 
language of Judge Rapallo, who wrote the opinion of the court, that 
the scaffold was deemed to be an inherently dangerous structure, and 
that the case was decided as it was because the court entertained that 
view. Otherwise he would hardly have said, as he did, that the cir- 
cimistances seemed to bring the case fairly within the principle of 
Thomas v, Winchester. 

I do not see how we can uphold the judgment in the present case 
without overruling what has been so often said by this court and other 
courts of like authority in* reference to the absence of any liability 
for negligence on the part of the original vendor of an ordinary car- 
riage to any one except his immediate vendee. The absence of such 
liability was the very point actually decided in the English case of 
Winterbottom v, Wright, ^w^pn-ay and the illustration quoted from the 
opinion of Chief Judge Ruggles in Thomas v, Winchester, Buipra, 
assumes that the law on the subject was so plain that the statement 
would be accepted almost as a matter of course. In the case at bar 
the defective wheel on an automobile, moving only eight miles an hour, 
was not any more dangerous to the occupants of the car than a simi- 
larly defective wheel would be to the occupants of a carriage drawn 
by a horse at the same speed, and yet, unless the courts have been all 
wrong on this question up to the present time, there would be no lia- 
bility to strangers to the original sale in the case of the horse-drawn 
carriage. 

The rule upon which, in my judgment, the determination of this 
case depends, and the recognized exceptions thereto, were discussed by 
Circuit Judge Sanborn, of the United States Circuit Court of Appeals 
in the Eighth Circuit, in Huset v, J. I. Case Threshmg Machine Co., 
120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303, m an opinion which 
reviews all the leading American and English decisions on the subject 
up to the time when it was rendered (1903). I have already discussed 



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262 MacPHERSON v. BUICK motor company [CHAP. n. 

the leading New York cases, but as to the rest I feel that I can add 
nothmg to the learning of that opinion or the cogency of its reasoning. 
I have examined the cases to which Judge Sanborn refers, but if I 
were to discuss them at length, I should be forced merely to para- 
phrase his language, as a study of the authorities he cites has led me 
to the same conclusion; and the repetition of what has already been 
so well said would contribute nothing to the advantage of the bench, 
the bar, or the individual litigants whose case is before us. 

A few cases decided since his opinion was written, however, may be 
noticed. In Earl v. Lubbock, [1905] L. R. 1 K. B. Div. 253, the Court 
of Appeal in 1904 considered and approved the propositions of law 
laid down by the Court of Exchequer in Winterbottom v. Wright, 
supra, declaring that the decision in that case, since the year 1842, 
had stood the test of repeated discussion. The Master of the Rolls 
approved the principles laid down by Lord Abinger as based upon 
sound reasoning; and all the members of the court agreed that his 
decision was a controlling authority which must be followed. That 
the federal courts still adhere to the general rule, as I have stated it, 
appears by the decision of the Circuit Court of Appeals in the Second 
Circuit, in March, 1915, in the case of Cadillac Motor Car Co. v. 
Johnson, 221 Fed. 801, 137 C. C. A. 279, L. R. A. 1915E, 287. That 
case, like this, was an action by a subvendee against a manufacturer 
of automobiles for negligence in failing to discover that one of its 
wheels was defective, the court holding that such an action could not 
be maintained. It is true there was a dissenting opinion in that case, 
but it was based chiefly upon the proposition that rules applicable 
to stage-coaches are archaic when applied to automobiles, and that if 
the law did not afford a remedy to strangers to the contract, the law 
should be changed. If this be true, the change should be effected by 
the Legislature and not by the courts. A perusal of the opinion in 
that case and in the Huset Case will disclose how uniformly the 
courts throughout this country have adhered to the rule and how 
consistently they have refused to broaden the scope of the exceptions. 
I think we should adhere to it in the case at bar, and therefore I vote 
for a reversal of this judgment. 

HiscocK, Chase, and Cuddeback, JJ., concur with Cardozo, J., 
and HoGAN, J., concurs in result. Willard Bartlett, C. J., reads 
dissenting opinion. Pound, J., not voting. 

Judgment affirmed.^ 

^ lAabiiUyof abstracter to third party injured by mistake or omission in abstract 
of title: see Thomas v. Guarantee Title & Trust Co., 81 Ohio St. 432; Bremerton 
Development Ck). v. Title Trust Co., 67 Wash. 268. 

Liability of vxUer company to injured citizen where it has failed to provide water 
for extinguishment of fires according to its contract with the municipality: see 
Sunderland, Liability of Water Companies for Fire Losses, 3 Mich. Law Rev. 442; 
Kales, Liability of Water Companies for Fire Losses — Another View, 3 Mich. 
Law Rev. 501; note in 19 Green Bag, 129-133. 



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SECT. Vin.] NEAL V. GILLETT 263 



Section VIII 

CONTRIBUTOBT CXTLPABLE CONDUCT OF PlAINTIFP 



NEAL V. GILLETT 

Supreme Court op Errors, Connecticut, June Term, 1855. 

Reported in 23 CannecHcut ReporU, 437. 

Action to recover for personal injury alleged to have been incurred 
through the negligence of the defendants. Plaintiff claimed that the 
defendants were guilty of gross negligence, as the cause of the injury; 
and that, if the jury should so find, the plaintiff was entitled to recover 
notwithstanding there had been on his part a want of mere ordinary 
care which might have essentially contributed to produce the injury 
complained of. The Court charged the jury in conformity to this 
claim of the plaintiff. Verdict for plaintiff. Motion for new trial. 

Sanford, J. [Omitting opinion on another point.] * The question 
presented upon the second point, is, whether a plaintiff is entitled to 
recover for an injury, produced by the combined operation of his own 
want of " ordinary care," and the gross negligence of the defendant. 
The exact boundaries between the several degrees of care and their cor- 
relative degrees of carelessness, or negligence, are not always clearly 
defined or easily pointed out. We think, however, that by " ordinary 
care," is meant " that degree of care which may reasonably be ex- 
pected from a person in the party's situation " (41 E. C. L. R. 425),* 
that is, " reasonable care " (19 Conn. R. 572) ; and that '* gross negli- 
gence " imports not a malicious intention or design to produce a 
particular injury, but a thoughtless disregard of consequences; the 
absence, rather than the actual exercise, of volition with reference to 
results. 

What is the measure of " reasonable care " must of course depend 
upon the circumstances of the particular situation in which the party 
at the time is placed. But " reasonable care," every one, in the en- 
joyment of his rights, and the performance of his duties, is bound to 
exercise at all times and under all circimistances. When he has done 
that, he is answerable to no one for any consequences which ensue, 
for he has done all his duty; when he has done less than that he is in 
fault, and if an injury ensue to another in consequence of such fault, 

^ Part of case omitted; also arguments. 

On the subject of this section the student may read profitably, Bohlen, Con- 
tributory Negligence, 21 Harvard Law Rev. 233; Clark, Tort Liability for Negli- 
gence in Missouri, Bull, of Univ. of Mo. Law Series, No. 12, pp. 25-43. 

» 1 Q. B. 29, 36. 



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264 , NEAL V. GILLETT [CHAP. II. 

he is responsible for iff if to himself, he must bear it. If in the en- 
jojnnent of their laWfuTrigSts by two persons, at the same time and 
pteSe, reasonable ear^is exercised by both, and an injury accrues to 
one of them, it must be borne by the suffering party as a providential 
visitation. If. such care is exercised by neither party, and an injury 
accrues to one of tKem, he must bear it, for he was himself in fault. 
And we hold that when the gist of the action is negligence merely, — 
whether gross or slight, the plaintiff is not entitled to recover, when 
his own want of ordinary, or reasonable care, has essentially con- 
tributed to his injury; because he is himself in fault, and because of 
the difficulty, if not impossibility, of ascertaining in what proportions 
the parties respectively, by their negligence, have contributed to the 
production of the injury, and whether it would have been produced at 
all but by the combined operation of the negligence of both. When 
the injury is intentional, and designed, other considerations apply. 

For an3rthing this Court can see, the negligence of the defendants, 
however gross, might have been entirely harmless, but for the plain- 
tiff's own wrongful contribution to the combined causes which pro- 
duced his injiuy. And so too, for anything this Court can see, although 
the defendants' negligence was gross, and fully adequate to the pro- 
duction of the injury, yet the plaintiff's exercise of reasonable care 
would have saved him from its consequences. 

In the recent case of Park v. O'Brien, 23 Conn. R. 339, this Court 
said, " It is necessary for the plaintiff, to prove, first, negligence on 
the part of the defendant, and, secondly, that the injiuy to the plaintiff 
occurred in consequence of that negligence. But in order to prove 
this latter point, the plaintiff must show that such injury was not 
caused, wholly, or in part, by his own negligence; ^ for although the 
defendant was guilty of negligence, if the plaintiff's negligence con- 
tributed essentially to the injmy, it is obvious that it did not occur by 

» Chicago R. Co. v. Ij^tj, 160 El. 385; Toledo R. Co. v, Brannagaiij 76 Ind. 
490; Cincinnati R. Co. t;. Butler, 103 Ind. 31 (but changed in case of injunes to the 
person, Acts of 1899, p. 68, Bums' Ann. St. § 362); Greenleaf r. Illinois R. Co., 
29 la. 14 (but changed in case of actions ac^unst a common carrier, Suppl. to the 
Code, 1913, § 3593 a); Brown v, Hhnois R. Co., 123 la. 239; Dickey t;. Maine Tel. 
Co., 43 Me. 492; Planz v. Boston R. Co., 167 Mass. 377 (but changed by Acts of 
1914, ch. 553); Mynning v. Detroit R. Co., 67 Mich. 677; Curran v. Warren 
Chemical Mfg. Co., 36 N. Y. 163; aty v. Nix, 3 Okl. 136; Bovee v. Danville, 53 
Vt. 183 Accord. 

Contray contributory negligence an affirmative defence: Inland Coasting Co. v. 
Tolson, 139 U. S. 551: Montgomery Gaslight Co. v, Montgomery R. Co., 86 Ala. 
372; Texas R. Co. v. Orr, 46 Ark. 182; Atchison v. Wills, 21 App. D. C. 648; Mac- 
Dougall V, Central R. Co.. 63 Cal. 431: Moore v. Lanier, 52 Fla. 353; City v. 
Hudson, 88 Ga. 599; Hopkins v. Utah R. Co., 2 Idaho, 300: St. Louis R. Co. v. 
Weaver, 35 Kan. 412; Hocum v, Weitherick, 22 Minn. 152; Buesching v. St. Louis 
Gaslight Co., 73 Mo. 219; Nelson v. City, 16 Mont. 21; O'Brien v. Omaha Water 
Co.. 83 Neb. 71; Valley v. Concord R. (Jo., 68 N. H. 646; New Jersey Exp. Co. v, 
Nichols, 33 N. J. Law 434; Jordan v. City, 112 N. C. 743; Carr v. Minneapolis R. 
Co., 16 N. D. 217; Grant v. Baker. 12 Or. 329; Beatty v. Gihnore, 16 Pa. St. 463; 
Carter v. Columbia R. Co., 19 S. C. 20; Houston R. Co. v. Cowser, 57 Tex. 293: 
Richmond Granite Co. v. Bailey, 92 Va. 554; Johnson v. BelUngham Imp. Ck)., 13 
Waah. 466; Fowler v, Baltimore R. Co., 18 W. Va. 679; Hoth v. Peters, 66 Wis. 405. 



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SECT. VIII.] PAYNE V. CHICAGO & ALTON R. R. CO. 265 

reason of the defendant's negligence." " Hence, to say that the plain- 
tiff must show the latter " [the want of the plaintiff's concurring negli- 
gence], " is only saying that he must show that the injury was owing 
to the negligence of the defendant." 

The same reasonable doctrine is sanctioned by other decisions, in 
our own Coiui; and elsewhere. Birge v. Gardiner, 19 Conn. R. 507; 
Beers v. Housatonic R. R. Co., 19 Conn. R. 566, and cases there cit^. 

We think, therefore, that the charge of the Coiui;, on this point, was 
wrong, and that a new trial ought to be granted. 

In this opinion the other judges concurred, except Ellsworth, J., 
who was disqualified. New trial to be granted,^ 



PAYNE V. CHICAGO & ALTON RAILROAD COMPANY 

Supreme Court, Missouri, June 25, 1895. 

Reported in 129 Missouri Reports^ 405. 

Action for personal injuries alleged to be caused by the negligence 
of defendant. Answer: a general denial, and a plea of contributory 
negligence.^ 

The judge, at the request of plaintiff, gave the following instruc- 
tion: — 

" No. 7. One of the defences in this case interposed by the defend- 
ant is that of negligence on the part of plaintiff, Claude Payne, directly 
contributing to the injuries of which plaintiff complains; and the 
court instructs the jury that the law devolves upon the defendant the 
burden of proving such negligence by a preponderance of the evidence, 
and it is not suflScient that the jury may believe from the evidence 
that the plaintiff was simply guilty of negligence, but that the negli- 
gence of plaintiff, and not that of the defendant, must be the proxi- 
mate or immediate cause of the injury, to excuse the defendant from 
liability." 

In the Circuit Coiui; plaintiff had judgment. Defendant appealed. 

Macfarlane, J. Defendant complains of instruction 7 given the 
jury at the request of plaintiff. The complaint is that the instruction 
improp)erly defines contributory negligence. 

Contributory negligence, as the word imports, implies the concur- 
ring negligence of both plaintiff and defendant. The phrase is defined 
by Beach as follows: " Contributory negligence, in its legal significa- 

^ As to contributory negligence as a bar to an action for damage caused in part 
hy defendant's failure to perform a duty imposed on him by statute, see Bishop, 
Commentaries on the Written Laws, §§ 117, 117 a, § 131, pars. 2, 3, § 134, 

r3. 3, 4, S 139, par. 1; Kelley v, Killourey, 81 Conn. 320: Catlett v. Young, 143 
74; Shultz v, Griffith, 103 la. 160: Hussey v. King, 83 Me. 568; Wadsworth v. 
Marshall, 88 Me. 263; Schutt v. Adair, 99 Minn. 7; Quimby v. Woodbury, 63 
N. H. 370; Kilpatrick v. Grand Trunk R. Co., 72 Vt. 263. 
' Only 80 much of the case is given as relates to a single point. 



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266 PAYNE V. CHICAGO & ALTON R. R. CO. [CHAP. H. 

tioii; is such an act or omission on the part of a plaintiff, amounting to 
a want of ordinary care, as, concurring or cooperating with the negli- 
gent act of the defendant, is a proximate cause or occasion of the 
injury complained of." Beach, Cont. Neg. [2 ed.] sect. 7. The defi- 
nition given by Shearman & Redfield in their work on Negligence 
(sect. 61) is in substance and effect the same. 

If the negligence of either plaintiff or defendant is the sole cause 
of the injury there could be no contributory negligence in the case. 
The question for the jiuy is whether the plaintiff could " by the exer- 
cise of such care and skill as he was bound to exercise, have avoided 
the consequence of the defendant's negligence." Lord Blackburn, 
L. R. 3 App. Cas. 1207. See, also, 4 Am. & Eng. Encyclopedia of 
Law, 18 & 19. It is clear that there could be no contributory negli- 
gence unless there was also negligence of defendant to which that of 
plaintiff could contribute. Unless the negligence of defendant was 
the proximate cause of the injury, there could be no Uability. Unless 
the negligence of plaintiff was a proximate cause of the injury, his 
action, on the ground of contributory negligence, would not be 
defeated. 

Testing the instruction by these rules, it cannot be approved. It 
tells the jury that " the negligence of plaintiff, and not that of defend- 
ant, must be the proximate or inmiediate cause of the injury to excuse 
the defendant from liability." They were told in effect that this re- 
sult would follow though " plaintiff was simply guilty of negligence." 
The jury may as well have been told that to defeat a recovery on the 
plea of contributory negligence, it was necessary to find that the negli- 
gence of plaintiff was the sole proximate cause of the injury. The 
instruction ignored entirely conciuring or contributory negligence of 
both parties, which is one essential element of contributory negligence. 
There are no degrees which distinguish the negligence made necessary 
by the law to defeat a recovery. And negligence which is proximate 
or a cause of the injury is sufficient. It does not matter that the con- 
curring and cooperating negligence of defendant was negligence, per se, 
such as the violation of an ordinance, as in this case, or statute law. 

The instruction is also misleading wherein it informs the jury that 
in order for defendant to establish its plea of contributory negligence 
" it is not suflBcient that the jury may believe from the evidence that 
plaintiff was simply guilty of negligence," and as qualified or ex- 
plained, by what follows, does not correctly declare the law. The 
negligence to defeat a recovery must be a proximate cause for the 
injury, but need not be the sole proximate cause. 

As the evidence on the issue of contributory negligence was very 
clear, we think the errors in this instruction prejudicial and must 
cause a reversal.^ Judgment reversed, and cause remanded. 

^ Remainder of opinion omitted. 

Start, J., in LaFlam v. Missisquoi Pulp Company, 74 Vt. 125. 143: " The de- 
fendants, by their second request, asked for an mstruction that it, by the exercise 



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SECT. VIII.] GALENA, Ac. R. CO. V, JACOBS 267 

Breese, J., IN GALENA, Ac. R. Co. v. JACOBS 

(1858) 20 lUinais, 478, 496-497. 

[After citing decisions in other jurisdictions.] It will be seen from 
these cases that the question of liability does not depend absolutely on 
the absence of all negligence on the part of the plaintiff, but upon the 
relative degree of care or want of care as manifested by both parties; 
for all care or negligence is at best but relative, the absence of the 
highest possible degree of care showing the presence of some negli- 
gence, slight as it may be. The true doctrine, therefore, we think, is, 
that in proportion to the negligence of the defendant should be meas- 
ured the degree of care required of the plaintiflf; that is to say, the 

of ordinary care and prudence upon the part of the plaintiff, he would not have 
been injui^ed. he cannot recover. The court instructed the jury, that, if the plain- 
tiff's want of ordinary care or his negligence contributed in any material deoee to 
the happening of the accident, he is not entitled to recover, even though the de- 
fendants were ne^igent. This was in accordance with the rule as it has sometimes 
been stated by this court. In Magoon v. Boston & Maine R. R. Co., 67 Vt. 184, 
31 Atl. 156, and in Hill r. New Haven, 37 Vt. 507, 88 Am. Dec. 613, it is said that, 
if the negligence or carelessness of the person injured contributes in any material 
degree to the production of the injury complained of, he cannot recover; but in 
Reynolds v. Boston & Maine R. R. Co.. 64 Vt. 66, 24 Atl. 134, 33 Am. St. Rep. 908, 
the holding is that, if the negligence of the plaintiff contributes in the least degree 
to the accident, there can be no recovery. We think this is the correct rule, and 
that the instruction should have conformed to it. The use of the word * material ' 
left the jury at liberty to consider the degree of the plaintiff's negligence, which is 
not considered permissible in jurisdictions where the doctrine of contributory 
negligence previuls. To allow jurors to consider so-called degrees of negligence 
would, in effecty nullifv this doctrine. 7 Am. & Eng. Enc. Law, (2d ed.) 379." 

** Negligence contributing as an efficient cause of injiuy will defeat an action 
therefor, irrespective of the quantum of negligence of the respective parties.'' Jag- 
gard, J., in O'Brien v, St. Paul City R. Co., 98 Minn. 205, 207-208. 

" An effect often has many proximate, and many remote^ causes. If the negli- 
gence of the plaintiff was one o! the proximate causes of the mjury. — if it directly 
contributed to the imfortunate result, — he cannot recover, even though the nedi- 
gence of the defendant also contributed to it." Sanborn, J., in Missouri Pac. K. 
Co. V, Moseley, 57 Fed. 921, 925. 

*' While purporting to give a Icjgal definition of contributory negligence, this in- 
struction demands that such negligence shall be foimd the sole and direct cause of 
the accident — an interpretation at war with the term * contributory ' itself." 
Reybum, J., in Hanheide v. St. Louis Transit Co., 104 Mo. App. 323, 330. 

*' . . . if it appears that his [plaintiff's] negligence has contributed as an efficient 
cause to the injury of which he complains, the court will not imdertake to balance 
the negligence of the respective parties for the purpose of determining which was 
most at fault. The law recognizes no gradations of fault in such case, and where 
both parties have been guilty of negligence, as a general rule, there can oe no recov- 
ery. There is really no distinction between negligence in the plaintiff and negli- 
gence in the defendJant, except that the negligence of the former is called * contri- 
butory negligence.' " Whittle, J., in Riclmiond Traction Co. v, Martin's Adm'r, 
102 Va. 209, 213. 

** . . , there was a lack of ordinary care on his [the deceased's] part, and where 
this occurs, contributing proximately to the injury, this lack will prevent a re- 
covery, though the neglig^ce of the other party may have much more contributed 
thereto." Beard, C. J., in Memphis Gas & Electnc Co. v, Simpson, (Tenn.) 109 
S. W. 1165, 1158. 

American Woolen Co. v. Stewart, (C. C. A.) 217 Fed. 1 ; Birmmgham R. Co. 
V. Bynum, 139 Ala. 389; St. Louis* R. Co. v. Musgrove, 113 Ark. 599; Denver 



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268 GALENA, Ac. R. CO. V. JACOBS [CHAP. U. 

more gross the negligence manifested by the defendant, the less degree 
of care will be required of the plaintiff to entitle him to recover. . . . 
We say, then, that in this, as in all like cases, the degree of negli- 
gence must be measured and considered, and whenever it shall appear 
that the plaintiff's negligence is comparatively slight and that of the 
defendant gross, he shall not be deprived of his action.^ 

R. Co. V, Maydole, 33 Col. 150; Robinson v, Huber, (Del.) 63 Atl. 873; 
O'Keefe v. Chicago R. Co., 32 la. 467; Pennsylvania R. Co. v. Roney, 89 Ind. 453; 
Atchison R. Co. v. Henry, 57 Kan. 154; Mann v. City, 154 Ky. 154; Marble v. 
RofiB, 124 Mass. 44; Mynning v. Detroit R. Co., 59 Mich. 257; Hurt v, St. Louis 
R. Co., 94 Mo. 255; Village v, Holliday, 50 Neb. 229; Pennsylvania R. Co. v, 
Righter, 42 N. J. Law, 180; St. Louis R. Co. v. Elsing. 37 Okl. 333; Weaver v, 
Pennsjyrlvania R. Co., 212 Pa. St. 632: Weir v. Haverford Electric Co., 221 Pa. St. 
611; McLean v, Atlantic R. Co., 81 S. C. 100; McDonald v. International R. Co., 
86 Tex. 1; Hazen v, Rutland R. Co., 89 Vt. 94; Chesapeake R. Co. v. Lee, 84 Va. 
642; Franklin v, Engel, 34 Wash. 480; Tesch v. Milwaukee R. Co., 108 Wis. 593 
Accord, 

^ " The doctrine of comparative negligence no longer exists in this state.'* 
Wilkin, J., in City v. Holcomb, 205 111. 643, 646. 

" The intrinsic diflScultjr of the subject of contributory negligence has led to 
three distinct lines of decisions. In En^and and a majority of ^e States of the 
Union, the negligence of the plaintiff which contributes to the in^iuy is held to be 
an absolute bar to the action. In the States of Illinois and Geor^a the doctrine of 
comparative negligence has been adopted, that is, if on comparmg the negligence 
of the plaintiff with that of the defendant, the former is found to be slight and the 
latter gross, the plaintiff may recover. In this State we hold that although the 
injured party may contribute to the injury by his own carelessness or wrongful 
conduct, yet if the act or negligence of the party inflicting the injury was the proxi- 
mate cause of the injury, the latter will be liable in damages, the negligence or 
wrongful conduct of the party injured being taken into consideration, oy way of 
mitigation, in estimating the damages. In other words, if defendant was guilty of 
a wrong by which plaintiff is injur^, and plaintiff was also in some degree negh- 
pent or contributed to the injury, it should go in mitigation of dama^^ but cannot 
justify or excuse the wrong. Kast Tennessee, Virginia & Georgia Railroad Com- 
pany V, Fain, 12 Lea, 35. At the same time we hold that if a party by his own 
^ss negligence bring an injury upon himself, or proximately contribute to such 
injury, he cannot recover; neither can he recover in cases of mutual neghgence 
where both parties are equally blamable. Id. The principal difference between 
our rule and the English rule, as modified by the more recent decisions, is in allow- 
ing the damages to be mitigated by the conduct of the injured party. In this re- 
spect our rule meets the objection which Mr. Thompson, m his notes on contribu- 
tory negligence, makes to the construction put by some of the courts on the English 
rule, or to the application of the rule in particular cases. * It is,' he says, * nothing 
more than a declaration that although both parties have been guilty of negligence 
contributing to the injury, the party who suffered the damage is to be completely 
exonerated, and the other party is not to be exonerated to any extent; the former 
is to recover of the latter witliout any abatement on account of his own share of the 
fault, tdl the damages which he has suffered.* * This is,' he adds, * manifest injus- 
tice; and yet it is practiced every day in the courts of England and in those of 
nearly every State in the Union.' 2 Thompson on Neg. 1155. Our rule, moreover, 
is merely an adaptation of the law which prevails in civil actions for assault and 
battery, where the conduct of the plaintiff in the way of provocation is always 
admissible in evidence to mitigate the damages. Jackaway v, Dula, 7 Yer. 82; 
Chambers v. Porter, 5 Cold. 273, 280; Suth. on Dam. 745." Cooper, J., m Louis- 
ville R. Co. v. Fleming, 14 Lea, (Tenn.) 128, 135. But see Southern R. Co. v, 
Pugh, 97 Tenn. 624. 



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SECT. VIII.] THE MAX MORRIS 269 

United States Compiled Statutes, 1913, § 8659. 

In all actions hereafter brought against any such common carrier ^ 
by railroad imder or by virtue of any of the provisions of this Act to 
recover damages for personal injuries to an employee, or where such in- 
juries have resulted in his death, the fact that the employee may have 
been guilty of contributory negligence shall not bar a recovery, but 
the- damages shall be diminished by the jury in proportion to the 
amount of negligence attributable to such employee: Provided, That 
no such employee who may be injured or killed shall be held to have 
been guilty of contributory negligence in any case where the violation 
by such common carrier of any statute enacted for the safety of em- 
ployees contributed to the injury or death of such employee.* (Act 
of April 22, 1908, c. 149, § 3, 35 Stat. L. 66.) 

England, Workmen's Compensation Act, 1906, § 1 (c.) 

If it is proved that the injury to a workman is attributable to the 
serious and wilful misconduct of that workman, any compensation 
claimed in respect of that injury shall, unless the injury results in 
death or serious and permanent disablement, be disallowed.* 



THE MAX MORRIS 

Supreme Court op the United States, Novebiber 17, 1890. 

Reported in 137 United States Reporter 1. 

The case, as stated by the court, was as follows: — 

This was a suit in Admiralty, brought in the District Court of the 

United States for the Southern District of New York, by Patrick 

Cimy against the steamer Max Morris.* 
The libel alleged that on the 27th of October, 1884, the libellant 

was lawfully on board of that vessel, being employed to load coal upon 

* This refers to § S657: " Every common carrier by railroad while engaging in 
commerce between any of the several States or Territories, or between the District 
of Columbia and any of the States or Territories, or between the District of Ck>ium- 
bia or any of the States or Territories and any foreign nation or nations. , , " 

* See also Florida, Comp. L., 1914, § 3149; Georgia. Park's Annotated Code, 
1914, 55 2781 (2332), 2783; Iowa, Supplement to Code, 1913. §2071: Kansas, 
Laws of 1911, ch. 239, § 2: Maine, Pub. L. 1910, c. 258, § 4; Mississippi, Laws of 

,1910, c. 135; Nebraska, Rev. St. 1915, §§6054, 7892; Nevada, Rev. L. §5651 
(employees m mines); Ohio, Page & Adams, Ann. Gen. Code, §§6245-1, 9018; 
South Dakota, Laws of 1907, c. 219, § 2; Texas, McEachin's Civ. St. art. 6649; 
Virginia, Acte of 1916, ch. 444, J 2; Wisconsin, Stat. 1915, ch. 87. § 1816 (3). 

Compare Arkansas, Kirby's Dig. §6654; Illmois, R. S. c. 114, § 231; Indiana, 
Bums* Ann. St. § 5277 c; Missouri, R. S. (1909) §§ 3164, 3172. 

* American Workmen's Compensation Acts often provide that if the employer 
does not elect to act under the statute, he shall be liable to an action at law by the 
injured employee in which contributory negligence shall be no defence. See, for 
example, Ohio, Pa^ & Adams, Annotated Uen. Code, § 1465-60. 

< Portions of opinion omitted. Argument for appdlant omitted. 



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270 THE MAX MORRIS [CHAP. U. 

her by the stevedore who had the contract for loading the coal; that, 
on that day, the Ubellant, while on the vessel, fell from her bridge to 
the deck, through the negUgence of those in charge of her, in having 
removed from the bridge the ladder usually leading therefrom to the 
deck, and in leaving open, and failing to guard, the aperture thus left 
in the rail on the bridge; that the Ubellant was not guilty of negli- 
gence; and that he was injured by the fall and incapacitated from 
labor. He claimed $3000 damages. 

The answer alleged negligence on the part of the Ubellant and an 
absence of negligence on the part of the claimant. 

The District Court, held by Judge Brown, entered a decree in favor 
of the Ubellant for $150 damages, and $32.33 as one-half of the Ubel- 
lant's costs, less $47.06 as one-half of the claimant's costs, making 
the total award to the Ubellant $135.27. The opinion of the District 
Judge is reported in 24 Fed. Rep. 860. It appeared from that that 
the judge charged to the UbeUant's own fault all his pain and suffering 
and all mere consequential damages, and charged the vessel with his 
wages, at $2 per day, for seventy-five working days, making $150. 

The claimant appealed to the Circuit Court, on the ground that the 
Ubel should have been dismissed. It was stipulated between the par- 
ties that the facts as stated in the opinion of the District Judge should 
be taken as the facts proved in the case, and that the appeal should be 
heard on those facts. Judge Wallace, who heard the case on appeal 
in the Circuit Court, deUvered an opinion, in August, 1886, which is 
reported in 28 Fed. Rep. 881, affirming the decree of the District 
Court. No decree was made on that decision, but the case came up 
again in the Circuit Court on the 14th of March, 1887, the Coiut being 
held by Mr. Justice Blatchford and Judge WaUace, when a certificate 
was signed by them stating as foUows: " The UbeUant was a long- 
shoreman, a resident of the city and county of New York, and was, 
at the time when the said accident occurred, employed as longshore- 
man, by the hour, by the stevedore having the contract to load coal 
on board the steamship Max Morris. The injuries to the Ubellant 
were occasioned by his falling through an unguarded opening in the 
rail on the after-end of the lower bridge. The Max Morris^ was a 
British steamship, haiUng from Liverpool, England. The defendant 
contends, as a matter of defence to said Ubel, that the injiu*ies com- 
plained of by UbeUant were caused by his own negligence. The Ubel- 
lant contends that the injuries were occasioned entirely through the 
fault of the vessel and her oflScers. The Comt finds, as a matter of 
fact, that the injuries to the Ubellant were occasioned partly through 
his own negUgence and partly through the negligence of the oflScers 
of the vessel. It now occurs, as a question of law, whether the Ubel- 
lant, under the above facts, is entitled to a decree for divided damages. 
On this question the opinions of the judges are in conflict." On 
motion of the claimant, the question in difference was certified to this 



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SECT. Vm.] THE MAX MORRIS 271 

Court, and a decree was entered by the Circuit Court affinning the 
decree of the District Court and awarding to the libellant a recovery 
of $135.27, with interest from the date of the decree of the District 
Comt, and $26.30 as the Ubellant's costs in the Circuit Coiut, making 
a total of $172. From that decree the claimant has appealed to this 
Court. Rev. Stat. §§ 652, 693; Dow v. Johnson, 100 U. S. 158. 

Mb. Justice Blatchford, aifter stating the case as above reported, 
delivered the opinion of the Court. 

The question discussed in the opinions of Judge Brown and Judge 
Wallace, and presented to us for decision, is whether the libellant was 
debarred from the recovery of any sum of money, by reason of the 
fact that his own negligence contributed to the accident, although 
there was negligence also in the officers of the vessel. The question 
presented by the certificate is really that question, although stated 
in the certificate to be whether the libellant, under the facts presented, 
was entitled to a decree " for divided damages." It appears from 
the opinion of the District Judge that he imposed upon the claimant 
" some part of the damage " which his conciurent negligence occa- 
sioned, while it does not appear from the record that the award of the 
$150 was the result of an equal division of the damages suflFered by 
the Ubellant, or a giving to him of exactly one-half, or of more or less 
than one-half, of such damages. 

The particular question before us has never been authoritatively 
passed upon by this Court, and is, as stated by the District Judge in 
his opinion, whether, in a Court of admiralty, in a case like the pres- 
ent, where personal injuries to the libellant arose from his negligence 
concurring with that of the vessel, any damages can be awarded, or 
whether the libel must be dismissed, according to the rule in common- 
law cases. 

The doctrine of an equal division of damages in admiralty, in the 
case of a collision between two vessels, where both are guilty of fault 
contributing to the collision, had long been the rule in England, but 
was first established by this Court in the case of The Schooner Cath- 
erine V. Dickinson, 17 How. 170, and has been applied by it to cases 
where, both vessels being in fault, only one of them was injured, as 
well as to cases where both were injured, the injured vessel, in the first 
case, recoveriAg only one-half of its damages, and, in the second case, 
the damages suflFered by the two vessels being added together and 
equaUy divided, and the vessel whose damages exceeded such one-half 
recovering the excess against the other vessel. In the case of The 
Schooner Catherine v. Dickinson, supra, both vessels being held in 
fault for the collision, it was said by the Court, speaking by Mr. Jus- 
tice Nelson, p. 177, that the well-settled rule in the English admiralty 
was " to divide the loss," and that " under the circumstances usually 
attending these disasters '* the Court thought " the rule dividing the 
loss the most just and equitable, and as best tending to induce care and 
vigilance on both sides, in the navigation.*' 



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272 THE MAX MORRIS [CHAP. IL 

[In Atlee v. Packet Co., 21 Wallace, 389, p. 396, Miller, J., said:] 
" But the plaintiflF has elected to bring his 9uit in an admiralty Court, 
which has jurisdiction of the case, notwithstanding the concurrent 
right to sue at law. In this Court the course of proceeding is in many 
respects different and the rules of decision are diflferent. The mode 
of pleading is different, the proceeding more summary and informal, 
and neither party has a right to trial by jury. An important diflfer- 
ence as regards this case is the rule for estimating the damages. In 
the common-law Court the defendant must pay all the damages or 
none. If there has been on the part of the plaintiffs such carelessness 
or want of skill as the common law would esteem to be contributory 
negligence, they can recover nothing. By the rule of the admiralty 
Court, where there has been such contributory negligence, or, in other 
words, when both have been in fault, the entire damages resulting 
from the collision must be equally divided between the parties. This 
rule of the admiralty conmiends itself quite as favorably in its in- 
fluence in securing practical justice as the other; and the plaintiff 
who has the selection of the forum in which he will litigate cannot 
complain of the rule of that forum.'* This Court, therefore, treated 
the case as if it had been one of a collision between two vessels. 

Some of the cases referred to show that this Court has extended the 
rule of the division of damages to claims other than those for damages 

to the vessels which were in fault in a collision. 

• ••• •••• 

The rule of the equal apportionment of the loss where both parties 
were in fault would seem to have been founded upon the difliculty of 
determining, in such cases, the degree of negligence in the one and 
the other. It is said by Cleirac (Uset Coutumes de la Mer, p. 68) that 
such rule of division is a rustic sort of determination, and such as 
arbiters and amicable compromisers of disputes conunonly follow, 
where they cannot discover the motives of tie parties, or when they 
see faults on both sides. 

As to the particular question now presented for decision, there has 

been a conflict of opinion in the lower Courts of the United States. 

• ••••••• 

All these were cases in admiralty, and were not cases of collision 
between two vessels. They show an amelioration of the common-law 
rule, and an extension of the admiralty rule in a direction which we 
think is manifestly just and proper. Contributory negligence, in a 
case Uke the present, should not wholly bar recovery. There would 
have been no injury to the libellant but for the fault of the vessel; 
and while, on the one hand, the Court ought not to give him full com- 
pensation for his injury, where he himself was partly in fault, it ought 
not, on the other hand, to be restrained from saying that the fact of 
his negligence should not deprive him of all recovery of damages. As 
stated by the District Judge in his opinion in the present case, the 
more equal distribution of justice, the dictates of humanity, the safety 



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SECT. Vni.] THE MAX MOllRIS 273 

of life and limb and the public good, will be best promoted by holding 
vessels liable to bear some part of the actual pecimiary loss sustained 
by the Ubellant, in a case like the present, where their fault is clear, 
provided the libellant's fault, though evident, is neither wilful, nor, 
gross, nor inexcusable, and where the other circumstances present a 
strong case for his relief. We think this rule is applicable to all like 
cases of marine tort founded upon negligence and prosecuted in ad- 
miralty, as in harmony with the rule for the division of damages in 
cases of collision. The mere fact of the negUgence of the Ubellant as 
partly occasioning the injuries to him, when they also occiured partly 
through the negligence of the oflScers of the vessel, does not debar him 
entirely from a recovery. 

The necessary conclusion is, that the question whether the Ubellant, 
upon the facts found, is entitled to a decree for divided damages, must 
be answered in the aflSrmative, in accordance with the judgment 
below. This being the only question certified, and the amount in dis- 
pute being insuflScient to give this Court jurisdiction of the whole 
case, our jiuisdiction is limited to reviewing this question. Chicago 
Union Bank v. Kansas City Bank, 136 U. S. 223. Whether, in a case 
like this, the decree should be for exactly one-half of the damages sus- 
tained, or might, in the discretion of the Court, be for a greater or less 
proportion of such damages, is a question not presented for om* 
determination upon this record, and we express no opinion upon it. 

Decree affirmed.^ 

Scott, Collisions atSea where both Ships are in Faui/t, 13 LawQuar- 
terly Review, 17. 

If minor or collateral differences be disregarded, there are amongst civilized 
nations four different ways of deaUng with collision damage where both ships 
are in fault. 

1. To mass the total damage and divide it equally between the two ships.' 

This is the British rule, and has been the American rule. . . . 

> Planiol, TRArrf ^l^mentairb de DBorr ctvil (6 ed.) II, { 899: " It fre- 
quently happens that one who suffers damage through the fault of another is not 
himself exempt from aU fault; he has concuired in the accident and shares respon- 
sibility therefor with the other. In this case there is what we call in practice /au/e 
commune. This conmiunity of fault diminishes the responsibility of the principal 
author of damage who now only owes a partial reparation.'' 

German Cfvil Code, { 254: *' If any fault of the injured party has contributed 
in causing the injury, the obligation to compensate the injured party and the 
Extent of the compensation to be made depends upon the circumstances, especially 
upon how far the injury has been caused chiefly by the one or the other party. 

'' This applies also even if the fault of the mjiu^ party consisted only in an 
omission to call the attention of the debtor to the danger of an imusually serious 
injury which the debtor neither knew nor ought to have known, or in an omission 
to avert or mitigate the injury. . . ." 

[The word " debtor " is used here in the Roman sense, meaning the person 
bound in any sort of obligation — here the delictual obligation to make reparation 
for an iniury due to fault.) 

* See The Drumlanrig, [1911] A. C. 16; Steamship Devonshire v. Barge Leslie, 
[1912] A. C. 634; St. Louis Packet Co. v. Miuray, 144 Ky. 815. But compare 
Murphy v. Diamond, 3 La. Ann. 441; New York Towboat Co. v. New York R. 
Co., 148 N. Y. 574; Union Steamship Co. v. Nottingham, 17 Grat. 115. 



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274 BUTTERTIELD V. FORRESTER [CHAP. II. 

2. To leave the loss where it falls. 

This is the rule in Germany, Holland, Italy, Spain, and those of the South 
American States which have derived their law from Spain, and was the rule in 
Great Britain in our Courts of Conmion Law previous to the Judicature Act, 
1873. 

3. To divide the loss proportionally to the value of the vessels in collision. 
A kind of general average principle obtaining in Turkey and Egypt. 

4. To divide the loss proportionally to the faults of the two vessels. 
This is the rule of France, Belgium, Norway, Sweden, Denmark, Portugal, 

Greece, and Roumania. 

See Franck, Collisions at Sea in Relation to Intematibnal Maritime Law, 12 
Law Quarterly Review, 260. 

England, Maiutime Conventions act (1911), § 1. 

1. (1) Where, by the fault of two or more vessels, damage or loss is caused 
to one or more of those vessels, to their cargoes or freight, or to any property 
on board, the liability to make good the damage or loss shall be in proportion 
to the degree in which each vessel was in fault: 
Provided that — 

(a) if, having regard to all the circumstances of the case, it is not pos- 
sible to establish different degrees of fault, the liability shall be apportioned 
equally; and 

(b) nothing in this section shall operate so as to render any vessel liable 
for any loss or damage to which her fault has not contributed. J^ 



BUTTERFIELD v. FORRESTER 

In the Kino's Bench, April 22, 1809. ^ 

Reported in 11 East, 60. 

This was an action on the case for obstructing a highway, by means 
of which obstruction the plaintiff, who was riding along the road, was 
thrown down with his horse, and injured, &c. At the trial before 
Bayley, J., at Derby, it appeared that the defendant, for the purpose 
of making some repairs to his house, which was close by the roadside 
at one end of the town, had put up a pole across this part of the road, 
a free passage being left by another branch or street in the same di- 
rection. That the plaintiff left a public house not far distant from 
the place in question at 8 o'clock in the evening in August, when they 
were just beginning to light candles, but while there was light enough 
left to discern the obstruction at one hundred yards distance; and the 
witness who proved this, said that if the plaintiff had not been riding 
very hard he might have observed and avoided it; the plaintiff, how- 
ever, who was riding violently, did not observe it, but rode against it, 
and fell with his horse and was much hurt in consequence of the acci- 
dent; and there was no evidence of his being intoxicated at the time. 
On this evidence Bayley, J., directed the jury, that if a person riding 
with reasonable and ordinary care could have seen and avoided the ob- 
struction; and if they were satisfied that the plaintiff was riding along 



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SECT. Vra.] DAVTES V. MANN 275 

the street extremely hard, and without ordinaiy care, they should find 
a verdict for the defendant, which they accordingly did. 

Vaughan, Serjt.y now objected to this direction, on moving for a new 
trial; and referred to Buller's Ni. Pri. 26,* where the rule is laid down, 
that " if a man lay logs of wood across a highway, though a person 
may with care ride safely by, yet if by means thereof my horse stumble 
and fling me, I may bring an action." 

Bayley, J. The plaintiff was proveji to be riding as fast as his 
horse could go, and this was through the^streets of Derby. If he had 
used ordinary care he must have seen the obstruction; so that the 
accident appeared to happen entirely froft^ his own fault. 

Lord Ellenborough, C. J. A party is not to cast himself upon an 
obstruction which had been made by the fault of another, and avail 
himself of it, if he do not himself use common and ordinary caution 
to be in the right. In cases of persons riding upon what is considered 
to be the wrong side of the road, that would not authorize another 
purposely to ride up against them. One person being in fault will not 
dispense with another's using ordinary care for himself. Two things 
must concm* to support this action : an obstruction in the road by the 
fault of the defendant, and no want of ordinary care to avoid it on the 
part of the plaintiff. RiUe refused, 

DAVIES V. MANN ^ 

In the Exchequer, November 4, 1842. 
Reported in 10 Meeaon & Welsby, 646. 

Case for negligence. The declaration stated, that the plaintiff 
theretofore, and at the time of the committing of the grievance there- 
inafter mentioned, to wit, on, Ac, was lawfully possessed of a certain 
donkey, which said donkey of the plaintiff was then lawfully in a cer- 
tain highway, and the defendant was then possessed of a certaih wagon 
and of certain horses drawing the same, which said wagon and horses' 
of the defendant were then under the care, government, and (Action 
of a certain then servant of tha defendant, in and along the said high- 
way; nevertheless the defendant, by his said servant, so carelessly, 
negligently, imskilfully, and improperly governed and directed his 
said wagon and horses, that by and through the carelessness, negli- 
gence, unskilfulness, and improper conduct of the defendant, by his 
said servant, the said wagon and horses of the defendant then ran and 
struck with great violence against the said donkey of the plaintiff, and 
thereby then wounded, crushed, and killed the same, Ac. 

The defendant pleaded not guilty. 

At the trial, before Erskine, J., at the last Summer Assizes for the 
county of Worcester, it appeared that the plaintiff, having fettered the 

* The book cites Carth. 194 and 451 in the margin, which references do not 
bear on the point here in question. — Reporter's note. 



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276 DAVIES V. MANN [CHAP. II. 

fore-feet of an ass belonging to him, turned it into a public highway, 
and at the time in question the ass was grazing on the oflf side of a 
road about eight yards wide, when the defendant's wagon, with a team 
of three horses, coining down a slight descent, at what the witness 
tenned a smartish pace, ran against the ass, knocked it down, and the 
wheels passing over it, it died soon after. The ass was fettered at 
the time, and it was proved that the driver of the wagon was some 
little distance behind the horses. The learned judge told the jury, 
that though the act of the plaintiff, in leaving the donkey on the high- 
way so fettered as to prevent his getting out of the way of carriages 
travelling along it, might be illegal, still, if the proximate cause of 
the injury was attributable to the want of proper conduct on the part 
of the driver of the wagon, the action was maintainable against the 
defendant; and his Lordship directed them, if they thought that the 
accident might have been avoided by the exercise of ordinary care on 
the part jDf the driver, to find for the plaintifiF. The jury found their 
verdict for the plaintiff, damages 40». 

Godson now moved for a new trial, on the ground of misdirection. 
The act of the plaintiff in turning the donkey into the public highway 
was an illegal one, and, as the injury arose principally from that act, 
the plaintiff was not entitled to compensation for that injury which, 
but for his own unlawful act, would never have occurred. [Parke, B. 
The declaration states that the ass was lawfully on the highway, and 
the defendant has not traversed that allegation; therefore it must be 
taken to be admitted.] The principle of law, as deducible from the 
cases is, that where an accident is the result of faults on both sides, 
neither party can maintain an action. Thus, in Butterfield v. Forres- 
ter, 11 East, 60, it was held that one who is injured by an obstruction 
on a highway, against which he fell, cannot maintain an action, if it 
appear that he was riding with great violence and want of ordinary 
care, without which he might have seen and avoided the obstruction. 
So, in Vennall v. Gamer, 1 C. & M. 21, in case for running down a 
ship, it was held, that neither party can recover when both are in the 
wrong; and Bayley, B., there says, " I quite agree that if the mis- 
chief be the result of the combined negligence of the two, they must 
both remain in statu quoy and neither party can recover against the 
other." Here the plaintiff, by fettering the donkey, had prevented 
him from removing himself out of the way of accident; had his fore- 
feet been free no accident would probably have happened. Pluckwell 
V. Wilson, 6 Car. & P. 375; Luxford v. Large, Ibid. 421, and Lynch 
V. Nurdin, 1 Ad. & E. (n. s.) 29 ^ 4 P. & D. 672, are to the same 
effect. 

Lord Abinger, C. B. I am of opinion that there ought to be no 
rule in this case. The defendant has not denied that the ass was law- 
fully in the highway, and therefore we must assume it to have been 

' The usual mode of citation is 1 Q. B. 



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SECT. VIII.] DAVIES V. BiANN 277 

lawfully there; but even were it otherwise, it would have made no dif- 
ference, for as the defendant might, by proper care, have avoided in- 
juring the animal, and did not, he is liable for the consequences of his 
negligence, though the animal may have been improperly there. 

Parke, B. This subject was fully considered by this Court in the 
case of Bridge v. The Grand Junction Railway Company, 3 M. & W. 
246, where, as appears to me, the correct rule is laid down concerning 
negligence, namely, that the negligence which is to preclude a plain- 
tiff from recovering in an action of this nature, must be such as that 
he could, by ordinary care, have avoided the consequences of the de- 
fendant's negligence. I am reported to have said in that case, and I 
believe quite correctly, that " the rule of law is laid down with perfect 
correctness in the case of Butterfield v. Forrester, that, although there 
may have been negligence on the part of the plaintiff, yet unless he 
might, by the exercise of ordinary care, have avoided the consequences 
of the defendant's negligence, he is entitled to recover; if by ordinary 
care he might have avoided them, he is the author of his own wrong.'* 
In that case of Bridge v. Grand Junction Railway Company, there 
was a plea imputing negligence on both sides; here it is otherwise; 
and the judge simply told the jury, that the mere fact of negligence 
on the part of the plaintiff in leaving his donkey on the public high- 
way, was no answer to the action, unless the donkey's being there was 
the immediate cause of the injury; and that, if they were of opinion 
that it was caused by the fault of the defendant's servant in driving 
too fast or, which is the same thing, at a smartish pace, the mere fact 
of putting the ass upon the road would not bar the plaintiff of his 
action. All that is perfectly correct; for, although the ass may have 
been wrongfully there, still the defendant was bound to go along the 
road at such a pace as would be likely to prevent mischief. Were this 
not so, a man might justify the driving over goods left on a public 
highway, or even over a man lying asleep there, or the purposely 
running against a carriage going on the wrong side of the road. 

GuRNBY, B., and Rolfe, B., concurred. Rule refused.^ 

^ '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 nesUgence, the plain- 
tiff cannot recover if he himself be shown to have been ^ilty of contributory neg- 
Ugenoe which ma^ have had something to do in causmg the accident; yet the 
contributory neghgence on his part would not exonerate the defendant^ and disen- 
title the plaintiff from recovering, if it be shown that the defendant might, by the 
exercise of reasonable care and prudence, have avoided the consequences of the 
plaintiff's nedigence.' 

" The qualification of the general rule, as thus stated, is supported by decisions 
of high authority, and was applicable to the case on trial.'' Gray, J., in Itiland 
Ck)astinff Ck>. v. Tolson, 139 U. S. 551, 558. 

" Although the defendant's ne^gence may have been the primary cause of the 
injury complained of. yet an action for such injury cannot be maintained if the 
proximate and immeaiate cause of the injury can be traced to the want of ordinary 
care and caution in the person injured; subject to this qualification, which has 
grown up in recent years (having been nrst enunciated in Davies v, Mann, 10 M. 



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278 NORTHERN PACIFIC RAILWAY CO. V. JONES [CHAP. 11. 

NORTHERN PACIFIC RAILWAY COMPANY t;. JONES 

United States Circuit Court of Appeals, Ninth Circuit, 

February 5, 1906. 

Reported in 144 Federal Reporter, 47. 

Gilbert, J.* . . . The defendant in error was a miner of the age of 34 
years, and was in the full possession of his senses. According to his own testi- 
mony, he walked upon the railroad track a distance of more than half a mile 
without once looking back or stopping to listen for an approaching train. In so 
doing, it must be held that he was guilty of gross negligence, which, irrespec- 
tive of negligence in the failure of the engineer to discover him on the track, is 
sufficient to bar his right of recovery. It was no excuse for his failure to take 
such precautions that the wind was blowing in his face, or that the noise of a 
waterfall may have deadened the sound of an approaching train. Those cir- 
cumstances only rendered the use of his senses the more imperative. It was 
his duty continually to exercise vigilance. 

On the authority of Inland & Seaboard Coastiog Co. v. Tolson, 139 U. S. 
551-558, 11 Sup. Ct. 653, 35 L. Ed. 270; Grand Trunk Ry. Co. v. Ives, 144 
U. S. 408^29, 12 Sup. Ct. 679, 36 L. Ed. 485; and Bogan v, Carolina Central 
Ry. Co., 129 N. C. 154, 39 S. E. 808, 55 L. R. A. 418, the defendant in error 
invokes the doctrine that the contributory negligence of the party injured will 
not defeat the action, if it be shown that the defendant might, by the exercise 
of reasonable care and prudence, have avoided the consequences of the injured 
party's negligence. In the first of these decisions, the doctrine was applied in 
a case where the plaintiff, a wharfinger, was standing with his foot between the 
timbers of a wharf, to deliver freight to a vessel which was about to make a 
landing there, and which struck the wharf with such force as to crush his foot. 
But the court held that the doctrine was applicable, for the reason that the 
jury might well have been of opinion that, while there was some negligence on 
the plaintiff's part in standing where and as he did, yet the officers of the boat 
knew just where and how he stood, and might have avoided injuring him, if 
they had used reasonable care to prevent the steamboat from striking the 
wharf with unusual and unnecessary violence. In the Ives Case, the plaintiff's 
intestate was killed while attempting to cross a railroad track. There was 
evidence of negligence on the part of the railroad company. On the part of the 
plaintiff's intestate there was no evidence as to what precaution he took before 
placing himself in the place of danger, except that, at a distance of about 
seventy-six feet from the track, he stopped several minutes, presumably to 
listen for trains; that while there a train passed; and that, soon after it had 
passed, and while the noise caused by it was still quite distinct, he proceeded 
across the track and was struck by another train. The court held that the 
question of contributory negligence of the plaintiff's intestate was properly 
left to the jury, as one to be determined imder all the circumstances of the 

& W. 546) that the contributory negligence of the party injured will not defeat the 
action if it be shown that the defendant might, by the exercise of reasonable care 
and prudence, have avoided the consequences of the injured party's negligence." 
Lamar, J., in Grand Trunk R. Co. v. Ives, 144 U. S. 408, 429. 
^ The statement of facts and portions of the opinion are omitted. 



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SECT. Vni.] JONES V. CHARLESTON A WESTERN RY. CO. 279 

case, but incidentally proceeded to aflSrm the rule above quoted, citing Davies 
V. Mann, 10 M. <fe W. 546; Inland & Seaboard CJoasting Co. v, Tolson, and 
other cases. There was no evidence in the Ives Case that the plaintiff ^s intest- 
ate was seen by those who were managing the train in time to have avoided 
the accident. The court, in that case, however, reaffirmed the rule that a 
traveller, on going upon a railroad track, ought to make vigilant use of his 
senses of sight and hearing, and listen for signals, and look in the different 
directions from which a train might come, and said: — 

" If by neglect of this duty he suffers injury from a passing train, he cannot 
recover of the company, although it may itsdf be chargeable with negligence, 
or have failed to give the signals required by statute, or be running at the time 
at a speed exceeding the legal rate." 

It cannot be contended that in the Ives Case the Supreme Court intended to 
lay down the broad rule that no contributory neghgence of the party injured 
will defeat his right to recover, if it be shown that the defendant might, by the 
exercise of reasonable care and prudence, have avoided the consequences of 
that negligence. To so hold would be to destroy the whole doctrine of con- 
tributory negligence. As apphed to the present case, it would mean that the 
plaintiff in error was bound to know that the defendant in error was upon its 
track, and that he would not step aside in time to avoid the train. Such is not 
the doctrine of cases such as Northern Pacific Railroad v. Freeman * and the 
other decisions which we have cited above. The doctrine of " the last clear 
chance^" so invoked by the defendant in error, originated in Davies v. Mann, 
in which it was held that the plaintiff's want of ordinary care in that case did 
not constitute contributory negligence, because it was a remote cause or mere 
condition of the injury, and did not proximately contribute to it, and because 
the negligence of the defendant arose subsequently to that of the plaintiff, and 
the latter's ne^gence was so obvious as to have been discoverable by the 
exercise of ordinary care. That doctrine has no appUcation to a case where the 
plaintiff voluntarily places himself in a place of danger from which he has 
present means of escape, and continues there without exercising precautions 
which an ordinarily prudent man would exercise. We have nothing here to do 
with the law applicable to a case where the injured person is found in a place of 
danger, as upon a railroad trestle, from which he is powerless to extricate him- 
self on the approach of a train, and where his situation is discovered, or ought 
to have been discovered, by those in charge of the train. 



JONES V. CHARLESTON & WESTERN CAROLINA 
RAILWAY COMPANY 

Supreme Court, South Carolina, April Term, 1901. 

Reported in 61 SoiUh Carolina ReportSf 656. 

AcnoN imder statute by administrator of Susan V. Jones to recover for her 
death. Mrs. Jones was killed by a train backing down upon her while she was 
walking on the railroad track. Plaintiff's evidence tended to show that the 
track at that place had been accustomed to be used by the public as a walkway 
with the knowledge and acquiescence of the defendant company. Mrs. Jones, 

» 174 U. S. 379. 



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280 JONES V. CHARLESTON A WESTERN RY. CO. [CHAP. U. 

when killed, was on a trestle. The train was backing down behind her, at a 
speed of from five to ten miles an hour. There was evidence on plaintiff's part 
that no bell was rung, no whistle blown, no warning given of the approach of 
the train; also that there was no look-out on the train, and no rear-end lights. 

Defendant requested the following instruction (No. 6) : — 

" Even if the defendant was guilty of negligence in the backing of its train, 
and such negligence was a proximate cause of the injury, if the jury aJso be- 
lieve that the said Susan V. Jones showed a want of ordinary care in walking 
down the track that night, under all the circumstances, and such carelessness 
was a proximate cause of the injury, she was guilty of contributory neglig^ce, 
and the plaintiff would not be entitled to recover." 

The judge qualified this instruction by adding: — 

" If the deceased, Mrs. Jones, was guilty of negligence in acting as you may 
find from the testimony that she acted, and if her conduct, her negligence, to- 
gether with the negligence of the railroad company, contributed to her injury 
as the proximate cause, then the railroad company would not be responsible, 
unless the railroad company could have avoided injuring her notwithstanding 
her negligence." 

The judge charged the jury, in accordance with plaintiff's ninth request, as 
follows: — 

" Contributory negligence is a matter of defence, and must be proved by 
defendant by a preponderance of the evidence; but unless the contributory 
negligence was the proximate cause of the accident, and if in spite of such con- 
tributory negligence the accident could have been avoided by the use of 
ordinary care on the part of the defendant, then plaintiff is stOl entitled to 
recover." 

Verdict for plaintiff and judgment thereon. Defendant appealed.* 

Jones, J. . . . The testimony being undisputed that Mrs. Jones, plaintiff 's 
intestate, was walking down the railroad track at the time of the injury, the 
defendant was entitled to have the sixth request to charge above mentioned in 
the tenth exception submitted to the jury as entirely correct. The remarks by 
the court down to the clause, " unless the railroad company could have 
avoided injuring her notwithstanding her negligence," were not improper nor 
inconsistent with the request, but the addition of such qualification was erro- 
neous and wholly inconsistent with the well-settled principles governing con- 
tributory negligence. The same error was made in the charge excepted to in 
the eleventh exception above, when the court instructed the jury, " but unless 
the contributory negligence was the proximate cause of the accident, and if in 
spite of such contributory negHgence (that is, negligence which contributed as 
a proximate cause), the accident could have been avoided by the use of ordi- 
nary care on the part of the defendant, then the plaintiff is still entitled to 
recover." The charge destroyed the defence of contributory negligence. In 
every case where there ia contributory negligence the defendant could have 
avoided the injury by ordinary care, for the simple reason that there can be no 
such thing as contributory negligence unless the defendant be negligent. The 
error complained of is the same error which was condemned in Cooper v, Ry. 
Co., 56 S. C. 94. The law in this state is settled that contributory negligence 
as defined in Cooper's case, supra, to any extent, will always defeat plaintiff^fl 

1 The statement of facts is condensed, and the arguments of counsel and part of 
the opinion are omitted. 



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SECT. VIII.] CORDINER V. LOS ANGELES TRACTION CO. 281 

recovery, unless the injury is wantonly or wilfully inflicted; for the law cannot 
measure how much of the injury is due to the plaintiff's own fault, and will 
not recompense one for injury resulting to himself from his own misconduct. 
The objection to the charge is that it instructed the jury that although plain- 
tiff's negligence contributed to her injury as a proximate cause, she could re- 
cover if the defendant by ordinary care could have avoided the injury. Is it 
not manifest that such a rule would abolish contributory negligence as a de- 
fence ? The qualifying terms, " unless the railroad company could have 
avoided injuring her notwithstanding her negligence,'' would necessarily mis- 
lead a jury; for they would at once say the railroad company could have 
avoided the injury by not being negligent in the manner alleged in the com- 
plaint, by having suitable rear end lights, by a reasonable lookout, by loud 
warning of the train's approach, by running at such slow speed as to enable 
any one warned to get off the track; and then utterly ignore the defendant's 
plea and evidence of contributory negligence, because of the instruction that 
plaintiff, notwithstanding her negligence which proximately caused her in- 
jury, could still recover, if the defendant could have avoided the injury. The 
jury ought to have been instructed without qualification, that if plaintiff was 
negligent and that negligence contributed as a proximate cause to her injury, 
she could not recover, unless the injury was wantonly or wilfully inflicted. 

The judgment of the Circuit Court is reversed, and the case remanded for a 
new trial 



CORDINER V. LOS ANGELES TRACTION COMPANY 

District Court of Appeals, Second District, California, 

April 16, 1907. 

Reported in 4 California Appellate Decisions^ 480. 

Shaw, J. Neither of the defendants questioned the right of plaintiff to re- 
cover such damages as she had sustained in the collision, but each contended 
that the other should be held responsible therefor; and with the view of hav- 
ing the jury pass upon the question, the Los Angeles Railway Company asked 
the court to instruct the jury, in effect, that notwithstanding the negligence of 
its motorman in driving his car upon the crossing, still if the traction motor- 
man could, after he saw that it was beyond the power of the motorman of the 
Los Angeles Railway car to avoid the accident, have, by proper care, pre- 
vented the collision, then the negligence of the defendant Los Angeles Traction 
Company was the proximate cause of the injury. In other words, while admit- 
ting that plaintiff's injury resulted from the collison due to the joint or con- 
cmrent acts of negligence of defendants, she must be confined in her recovery 
for such damages to a judgment rendered against the defendant who had 
the "last clear chance " to avoid the collision and neglected to act upon it. 
Appellant seeks to apply the well-established principle that " he who last has 
a clear opportunity of avoiding the accident, by the exercise of proper care to 
avoid injuring another, must do so." Esrey v. S. Pacific Co., 103 Cal. 541. 
This rule is only applicable to cases where the defence is based upon the con- 
tributory negligence of plaintiff due to his want of care in placing himself in a 
position of danger, and where he may, notwithstanding his negligence, recover 



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282 STILES V. GEESEY [CHAP. II, 

from a defendant, who by the exercise of proper care could have avoided the 
injury. We are unable to perceive why this rule should ^pply to plaintiff, 
who was in no way chargeable, by imputation or otherwise, with negligence; 
nor are we referred to any authority which supports the proposition. Indeed, 
all the authorities recognize the right of recovery against either or both of the 
defendants whose concurring acts of negligence united in producing the injury. 
1 Shearman & Redfield on Neg. p. 122; 1 Thompson on Neg. p. 75; Doeg v. 
Cook, 126 Cal. 213; Tompkins v. Clay St. Ry. Co., 66 Cal. 163; Pastene v. 
Adams, 49 Cal. 87.» 

STILES V. GEESEY 
Supreme Court, Pennsylvania, May 30, 1872. 

Reported in 71 Pennsylvania State Reports , 439. 

Before Thompson, C. J., Read, Agnew, Sharswood and Wil- 
liams, JJ. 

Error to the Court of Common Pleas of York County. 

Action on the case by Jacob B. Geesey against Thomas Stiles, for 
alleged injuiy by the negligence of William Stiles, son of defendant, 
by which plaintiflf's horse and carriage were damaged.* 

PlaintiflF's wife, driving in a light carriage of plaintiflf's, hitched her 
horse to a tree on the road, and went into a friend's house. The car- 
riage projected into the travelled part of the road. Whilst the carriage 
was so left, the defendant's son, William Stiles, was driving his father's 
team with a loaded wagon along the road. He got off to do something 
to his wagon; and seeing an acquaintance in a neighboring barn, 
stopped a moment to exchange a few words with him, the team moving 
on slowly at the time with the load up the hill, keeping the travelled 
track of the road till the front horse was just behind plaintiff's carriage 
standing unattended where it was left. At this point of time William 
Stiles was behind his own wagon, at some distance from it; and did 
not see the obstruction in the road in time to avoid a collision. The 
wagon collided with the carriage. Stiles halloed " Whoa," and his 
horses stopped. In the collision, the plaintiff's horse was fatally 
injured. 

The third point of the plaintiff, which was affirmed in the charge to 
the jury by Fisher, P. J., is as follows: — 

" That Thomas Stiles cannot excuse the negligence of William Stiles 
by showing that the plaintiff's property was placed where it received 
the injury by want of ordinary care by Mrs. Geesey, if, in the opinion 
of the jury such want is imputable to her, should the jury believe that 
WiUiam Stiles was chai^able with negligence in leaving his team and 
permitting it to go along the highway unattended." 

Verdict for plaintiff. . 

* Only a portion of the opinion is printed. 

* The statement of facts is abridged from the statement in the opinion and from 
the statement made by the reporter. The citations of counsel are omitted. 



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SECT. VIII.] RADLEY V. LONDON & NORTH WESTERN RY. CO. 283 

Read, J. [After stating the facts.] We have taken in brief, the de- 
fendant's statement of his defence, which fairly raises the question of 
contributory negligence. " It is an incontestable principle that where 
the injury complained of is the product of mutual or concurring negli- 
gence, no action for damages will lie. The parties being mutually in 
fault there can be no apportionment of the damages. The law has no 
scales to determine in such cases whose wrong-doing weighed most in 
the compound that occasioned the mischief: " per Woodward, J., 
12 Harris, 469. 

" The question presented to the Court or the jury is never one of 
comparative negligence, as between the parties; nor does very great 
negligence on the part of a defendant so operate to strike a balance 
of negligence as to give a judgment to a plaintiflf whose own negligence 
contributes in any degree to the injury." Wilds v. Hudson River 
Raihroad Co., 24 N. Y. 432. 

The third error assigned is that the Court erred in their charge to 
the jury on the plaintiff's third pomt, which was as follows: " That 
Thomas Stiles cannot excuse the negligence of William StQes by show- 
ing that the plaintiff's property was placed where it received the in- 
jury, by want of ordinary care by Mrs. Geesey, if in the opinion of the 
jury such want is imputable to her, should the jury believe WflUam 
Stiles was chargeable with negligence, in leaving his team and per- 
mitting it to go along the highway unattended," which point the 
Comrt affirmed, holding that although there was contributory negli- 
gence on the part of the plaintiff, he was entitled to recover from the 
defendant on account of his negligence. This was a binding instruc- 
tion upon the jury, leaving nothing for them to inquire into prac- 
tically, except the negligence of the defendant. In this the Court 
committed a clear error, and the judgment must be reversed, and 
venire de novo awarded. 



RADLEY V. LONDON AND NORTH WESTERN RAILWAY 

COMPANY 

In the House of Lords, December 1, 1876. 
Reported in Law Reporie, 1 Appeal Caeea^ 754. 

This was an appeal against a decision of the Court of Exchequer 
Chamber. 

The appellants were the plaintiffs in an action brought in the Comt 
of Exchequer, in which they claimed to recover damages for the de- 
struction of a bridge occasioned, as they alleged, by the negUgence 
of the defendants' servants. The plaintiffs were owners of the San- 
key Brook Colliery, in the county of Lancaster, which was situated 
near a branch line of the defendants* railway. There was a siding 
belonging to the plaintiffs, which communicated with the railway, and 



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284 RADLEY V. LONDON A NORTH WESTERN RY. CO. [CHAP. H. 

the defendants' servants were in the habit of taking trucks lo^ed 
with coals from this siding, in order to run them on the railway to 
forward them to their destination, and also of bringing back empty 
trucks and running them from the railway on to the siding. On 
Satiu*day after working hours, when all the colliery men had gone 
away, the defendants' servants ran some of the plaintiflFs' empty 
trucks from the railway upon the siding and there left them. In that 
position they remained. One of the watchmen employed by the plain- 
tiffs knew that they were there, but nothing was done to remove them 
to a different place. In the first of these trucks had been placed a 
truck which had broken down, and the height of the two trucks com- 
bined was nearly eleven feet. There was, in advance of the spot where 
the trucks had been left, a bridge placed over a part of the siding, the 
span of which bridge was about eight feet from the ground. On Sun- 
day afternoon the defendants' servants brought a long line of empty 
trucks belonging to the plaintiffs, and ran them on the line of the sid- 
ing, pushing on the first set of trucks in front. Some resistance was 
perceived, and the pushing force of the engine employed was increased, 
and the result was, as the two trucks at the head of the line could not 
pass under the bridge, they struck with great force against it and 
broke it down.* For the damage thereby occasioned this action was 
brought. The defence was contributory negligence; it being insisted 
that the plaintiffs ought to have moved the first set of trucks to a safe 
place, or at all events, not to have left the truck with the disabled 
truck in it so as to be likely to occasion mischief. At the trial before 
Mr. Justice Brett, at the Smnmer Assizes at Liverpool, in 1873, the 
learned judge told the jury that " you must be satisfied that the plain- 
tiffs' servants did not do anything which persons of ordinary care, 
under the circumstances, would not do, or that they otfiitted to do 
something which persons of ordinary care would do. . . . It is for 
you to say entirely as to both points; but the law is this, the plaintiffs 
must have satisfied you that this happened by the negligence of the 
defendants' servants, and without any contributory negligence of their * 
own, in other words that it was solely by the negligence of the de- 
fendants' servants. If you think it was, then your verdict will be for 
the plaintiffs. If you think it was not solely by the negUgence of the 
defendants' servants, your verdict must be for the defendants." * The 
jurors having, on this direction^ stated that they thought there was 
contributory negligence on the part of the plaintiffs, the learned judge 
directed that the verdict should be entered for the defendants, but 
reserved leave for the plaintiffs to move. 

*''... The wagon so loaded coining to the bridge and being unable to pass 
underneath it. the train stopped, and those who had charge of it, without looking 
to ascertain tne cause of the stoppage, eave momentum to the engine to such an 
extent that the wagon with its load knocKed the bridge down/' Statement of facts 
in opinion of Bramwell, B., L. R. 9 Exch. 72. Compare statement in L. R. 10 
Exch. 102. 

* Printed papers in the case. 



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SECT. Vm.] RADLET V. LONDON h NORTH WESTERN RY. CO. 285 

A rule having been obtained for a new trial, it was after argument 
before Barons Bramwell and Amphlett made absolute.* On appeal 
to the Exchequer Chamber the decision was, by Justices Blackburn, 
Mellor, Lush, Brett, and Archibald (dm. Justice Denman), reversed.* 
This appeal was then brought.' 

Lord Penzance. My Lords, the action out of which this appeal 
arises is an action charging the defendants with negligence (through 
their servants) in so managing the shunting of some empty coal- 
wagons as to knock down a bridge and some staging and some colliery 
head-gearing, which stood upon it, and belonged to the plaintiffs. 

The first question on the appeal is, whether the Court of Exchequer 
Chamber was right in holding that there was any evidence, proper to 
be submitted to the jury, tending to the conclusion that the plaintiffs 
themselves had been guilty of some negligence in the matter, and that 
such negligence had contributed to produce the accident and injury of 
which they complained. 

The general facts of the case, the particular facts which gave rise 
to the imputation of negligence, and the contention of both sides as 
to the fair result of these facts, are stated in the judgment of the 
Court of Exchequer delivered by Baron Bramwell. His Lordship here 
read the statement from Mr. Baron Bramwell's judgment.* 

It may be admitted that this is a fair and full statement of the argu- 
ments and considerations on the one side, and on the other, upon 
which the question of the plaintiffs' negligence had to be decided. But 
it had to be decided by the jurors, and not by the Court, and I am 
unable to perceive any reason why the learned judge did wrong in 
submitting these arguments and considerations to their decision ac- 
cordingly. The bare statement of them is enough to show that there 
were in the case facts and circumstances sufficient at least to raise the 
question of negligence, whether they were a sufficient proof of negli- 
gence or not. 

The decision, therefore, of the Exchequer Chamber upon this matter 
ought, I think, to be upheld. 

The remaining question is whether the learned judge properly di- 
rected the jury in point of law. The law in these cases of negligence 
is, as was said in the Court of Exchequer Chamber, perfectly well 
settled and beyond dispute. 

The first proposition is a general one, to this effect, that the plaintiff 
in an action for negligence cannot succeed if it is found by the jury 
that he has himself been guilty of any negligence or want of ordinary 
care which contributed to cause the accident. 

But there is another proposition equally well established, and it is a 
qualification upon the first, namely, that though the plaintiff may 
have been guilty of negligence, and although that negligence may, in 

* L. R. 9 Ex. 71. • Arguments of counsel are omitted. 

* L. R. 10 Ex. 700. < L. R. 9 Ex. at 72. 



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286 RADLEY V. LONDON A NORTH WESTERN RY. CO. [CHAP. II. 

fact, have contributed to the accident, yet if the defendant could in the 
result, by the exercise of ordinary care and diligence, have avoided the 
mischief which happened, the plaintiflfs' negligence wUl not excuse 
him. 

This proposition, as one of law, cannot be questioned. It was 
decided in the case of Davies v. Mann, 10 M. & W. 646, supported in 
that of TuflF V. Warman, 5 C. B. (n. s.) 573; 27 L. J. C. P. 322, and 
other cases, and has been universally applied in cases of this character 
without question. 

The only point for consideration, therefore, is whether the learned 
judge properly presented it to the mind of the jury. 

It seems impossible to say that he did so. At the beginning of his 
summing-up he laid down the following as the propositions of law 
which governed the case: It is for the plaintiffs to satisfy you that 
this accident happened through the negligence of the defendants' 
servants, and as between them and the defendants, that it was solely 
through the negligence of the defendants' servants. They must satisfy 
you that it was solely by the negligence of the defendants' servants, 
or, in other words, that there was no negligence on the part of their 
servants contributing to the accident; so that, if you think that both 
sides were negligent, so as to contribute to the accident, then the 
plaintiffs cannot recover. 

This language is perfectly plain and perfectly unqualified, and in 
case the jurors thought there was any contributory negligence on the 
part of the plaintiffs' servants, they could not, without disregarding 
the direction of the learned judge, have found in the plaintiffs' favor, 
however negligent the defendants had been, or however easily they 
might with ordinary care have avoided any accident at all. 

The learned judge then went on to describe to the jury what it was 
that might properly be considered to constitute negligence, first in the 
conduct of the defendants, and then in the conduct of the plaintiffs; 
and having done this, he again reverted to the governing propositions 
of law, as follows: " There seem to be two views. It is for you to say 
entirely as to both points. But the law is this, the plaintiff must have 
satisfied you that this happened by the negligence of the defendants'- 
servants, and without any contributory negligence of their own; in 
other words, that it was solely by the negligence of the defendants' 
servants. If you think it was, then your verdict will be for the plain- 
tiffs. If you think it was not solely by the negligence of the defend- 
ants' servants, your verdict must be for the defendants." 

This, again, is entirely without qualification, and the undoubted 
meaning of it is, that if there was any contributory negligence on the 
part of the plaintiffs, they could in no case recover. Such a statement 
of the law is contrary to the doctrine established in the case of Davies 
V, Mann, 10 M. & W. 546, and the other cases above alluded to, and in 
no part of the sunmiing-up is that doctrine anywhere to be found. 



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SECT. VIII.] RADLEY V. LONDON h NORTH WESTERN RY. CO. 287 

The learned counsel were unable to point out any passage addressed 
to it. 

It is true that in part of his sununing-up the learned judge pointed 
attention to the conduct of the engine-driver, in determining to force 
his way by violence through the obstruction, as fit to be considered by 
the jury on the question of negligence; but he failed to add that if 
they thought the engine-driver might at this stage of the matter by 
ordinary care have avoided all accident, any previous negligence of 
the plaintiffs would not preclude them from recovering. 

In point of fact the evidence was strong to show that this was the 
immediate cause of the accident, and the jury might well think that 
ordinary care and diligence on the part of the engine-driver would, 
notwithstanding any previous negligence of the plaintiffs in leaving 
the loaded-up truck on the b'ne, have made the accident impossible. 
This substantial defect of the learned judge's charge is that that 
question was never put to the jury. 

On this point, therefore, I propose to move that your Lordships 
should reverse the decision of the Exchequer Chamber, and direct a 
new trial. 

The Lord Chancellor (Lord Cairns). My Lords, I have had the 
advantage of considering the opinion which has just been expressed 
to your Lordships in this case by my noble and learned friend, and, 
concurring as I do with every word of it, I do not think it i3 necessary 
that I should do more than say that I hope your Lordships will agree 
to the motion which he has proposed. 

Lord Blackburn. My Lords, I agree entirely with the noble Lord 
who has first spoken as to what were the proper questions for the jury 
in this case, and that they were not decided by the jury. I am in- 
clined to think that the learned judge did in part of his summing-up 
sufficiently ask the proper questions, had they been answered, but 
imfortunately he failed to have an answer from the jury to those ques- 
tions, it appearing by the case that the only finding was as to the 
plaintiffs* negligence. 

I agree, therefore, in the result that there should be a new trial. 

Lord Gordon. My I^ords, I entirely concur in the motion which 
has been submitted to your Lordships by my noble and learned friend 
on the other side of the House. The question is one which has given 
rise to some difficulty in the courts of Scotland, but I think that it is 
very likely that the opinion which has been expressed in this case will 
be regarded as a very useful authority for guiding their decisions.* 

Jtutgrnent of the Court of Exchequer Chamber reversed. 
Judgment of the Court of Exchequer restored, and a 
new trial ordered, with costs. 

Lords' Journals, December 1, 1876. 

* See also Cayaer v. Carron, 9 App. Cas. 873; McDermaid v. Edinburgh Tram- 
ways Co., 22 Sc. L. R. 13. 



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288 NASHUA, Ac. CO. V. WORCESTER, Ac. CO. [CHAP. H. 

NASHUA IRON AND STEEL CO. v. WORCESTER 
& NASHUA RAILROAD CO. 

Supreme Court, New Hampshire, June, 1882. 
Reported in 62 New Hampshire Reports, 159. 

Case. Demurrer to the declaration. 

Carpenter, J. The declaration alleges that by the defendants' 
careless management of their engine and cars, the plaintiffs' horse was 
frightened, and caused to run upon and injure Ursula Clapp, who was 
without fault; that Clapp brought her action therefor against the 
plaintiffs, and recovered judgment for damages, which they paid; that 
the defendants had notice of, and were requested to defend, the suit. 
The defendants demur. Inasmuch as Clapp could not have recovered 
against the plaintiffs unless they were in fault (Brown v. Collins, 53 
N. H. 442; Lyons v. Child, 61 N. H. 72), it must be taken that their 
negligence co-operated with that of the defendants to produce the in- 
jury. If the plaintiffs were not liable in that action because their 
negligence was not, and the defendants' negligence was, the cause of 
the accident, the objection is not now open to the defendants. Little- 
ton V, Richardson, 34 N. H. 179. In relation to Clapp, both parties 
were wrong-doers. She could piusue her remedj'' against either or 
both of tl\em at her election. Burrows v. March Gas Co., L. R. 5 Ex. 
67, 71. 

One of several wrong-doers, who has been compelled to pay the dam- 
ages caused by the wrong, has in general no remedy against the others. 
He cannot make his own misconduct the ground of an action in his 
favor. To this proposition there are, it has been said, so many excep- 
tions, that it can hardly, with propriety, be called a general rule. 
Bailey v. Bussing, 28 Conn. 455. Its application is restricted to cases 
where the person seeking redress knew, or is presumed to have known, 
that the act for which he has been mulcted in damages was unlawful. 
Jacobs V, Pollard, 10 Cush. 287, 289; Coventry v. Barton, 17 Johns. 
142. In many instances several parties may be liable in law to the 
person injured, while as between themselves some of them are not 
wrong-doers at all ; and the equity of the guiltless to require the actual 
wrong-doer to respond for all the damages, and the equally innocent 
to contribute his proportion, is complete. Wooley v. Batte, 2 C. & P. 
417; Pearson v. Skelton, 1 M. & W. 504; Betts v. Gibbins, 2 A. & E. 
57; Adamson v. Jarvis, 4 Bing. 66; Avery v. Halsey, 14 Pick. 174; 
Gray v. Boston Gas Light Co., 114 Mass. 149; Churchill v. Holt, 127 
Mass. 165, and 131 Mass. 67; Bailey v. Bussing, supra; Smith v, 
Foran, 43 Conn. 244. These cases, instead of being exceptions to the 
rule, seem rather not to fall within it. The right of recovery rests in ' 
the one case upon the principle that he who without faiilt on his part is 
injxured by another's wrongful act is entitled to indemnity, and in the 



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SECT. Vm.] NASHUA, Ac. CO. V. WORCESTER, Ac. CO. 289 

other upon the doctrine of contribution. One of two masters, who is 
compelled to pay damages by reason of his servant's negligence, may 
have contribution from the other because he has removed a burden 
common to both. They may recover indemnity of the servant, be- 
cause as against him they are without fault, and are directly injured by 
his misconduct. One who is so far innocent that he can recover for an 
injury to his person or property, may also recover whatever sum he, by 
reason of his relation to the wrong, has been compelled to pay to a 
third person. If the plaintiffs could recover for an injury to their 
horse, caused by the accident, they may recover the sum which they 
paid to Clapp. 

The declaration is general. It does not disclose the particulars of 
the plaintiffs' negligence, by reason of which Clapp recovered against 
them. Under it, cases differing widely in their facts and legal aspects 
may be proved. Among others possible, it may be shown that the 
horse was in the charge of the plaintiffs' servants, who might have pre- 
vented its fright or its running after the fright, or if they could do 
neither, that they might nevertheless have avoided the injury to Clapp; 
or it may appear that the plaintiffs' negligence consisted solely in per- 
mitting the horse, whether attended or unattended by their servants, 
to be at the place where it was at the time of the fright. The generality 
of the declai^ation does not render it bad in law. Corey v. Bath, 35 
N. H. 531. If the plaintiffs are entitled to judgment upon any state 
of facts provable under it, the demmrer must be overruled. Whether 
the plaintiffs can recover in any case, and if so, in what cases, possible 
to be proved under the declaration, are speculative or h3rpothetical 
questions, of which none may, and all cannot, arise. They involve 
substantially the whole subject of the law relating to mutual negli- 
gence. The case might properly be discharged without considering 
them (Smith v. Cud worth, 24 Pick. 196), and the parties required to 
present by the pleadings, or by a verdict, the facts upon which their 
rights depend. A brief consideration, however, of the general ques- 
tions involved, may, it is thought, facilitate a trial, and save expense 
to the parties. 

Ordinary care is such care as persons of average prudence exercise 
under like circumstances. Tucker v. Henniker, 41 N. H. 317; Sleeper 
V. Sandown, 52 N. H. 244; Aldrich v. Monroe, 60 N. H. 118. Every 
one in the conduct of his lawful business is boimd to act with this de- 
gree of care, and if he fails to do so is responsible for the consequences. 
It follows that a person injured by reason of his want of ordinary care, 
or (since the law makes no apportionment between actual wrong- 
doers) by the joint operation of his own and another's negligence, is 
remediless. TTiis general rule of law justly applied to the facts deter- 
mines, it is believed, the rights of the parties in all actions for negli- 
gence. In its application, the law, as in various other cases, deals with 
the immediate cause, — the cause as distinguished from the occasion. 



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290 NASHUA, Ac. CO. V. WORCESTER, Ac. CO. [CHAP. H. 

— and looks at the natural and reasonably to be expected effects. 
Cowles V. Kidder, 24 N. H. 383; Hooksett v. Company, 44 N. H. 108; 
Mclntire v. Plaisted, 57 N. H. 608; Solomon v. Chesley, 59 N. H. 243; 
China v. Southwick, 12 Me. 238; Lowery v. Western U. Tel. Co., 60 
N. Y. 198; Rigby v. Hewitt, 5 Exch. 243; Blyth v. Birmingham 
Waterworks Co., 11 Exch. 781; Bank of Ireland v. Evans's Charities, 
6 H. L. Ca. 389, 410, 411; lonides v. Marine Ins. Co., 14 C. B. n. s. 
259; Romney Marsh v. Trinity House, L. R. 5 Ex. 204; Holmes v, 
Mather, L. R. 10 Ex. 268; Sharp v. Powell, L. R. 7 C. P. 253; Pearson 
V. Cox, 2 C. P. Div. 369; Tutein v. Hurley, 98 Mass. 211; Bro. Leg. 
Max. 215. 

Actions for negligence may, for convenience of consideration, be 
separated into four classes, namely, — where, upon the occasion of the 
injury complained of (1) the plaintiff, (2) the defendant, or (3) 
neither party was present, and (4) where both parties were present. 
In all of them it may happen that both parties were more or less negli- 
gent. Actions upon the statute of highways are a conmion example of 
the first class. The negligence of the defendant, however great, does 
not relieve the plaintiff from the duty of exercising ordinary care. 
If, notwithstanding the defective condition of the highway, this de- 
gree of care on the part of the plaintiff would prevent the accident, his 
and not the defendant's negligence, though but for the latter it could 
not happen, is, in the eye of the law, its sole cause. Farnum v. Con- 
cord, 2 N. H. 394; Butterfield t'. Forrester, 11 East, 60. In this class 
of cases, an injury which the plaintiff's negligence contributes to pro- 
duce could not happen without it. The not imcommon statement that 
the plaintiff cannot recover if his negligence contributes in any degree 
to cause the injury, is strictly correct, although the word " contrib- 
ute " may be, as Crompton, J., in Tuff v. Warman, 5 C. B. n. b. 684, 
says it is, " a very unsafe word to use," and " much too loose." The 
result is the same whether the plaintiff acts with full knowledge of the 
danger, or, by reason of a want of proper care, fails to discover it sea- 
sonably. If he is not boimd to anticipate, and in advance provide for, 
another's negligence, he may not wilfully or negligently shut his eyes 
against its possibility. He is bound to be informed of everything 
which ordinary care would disclose to him. He can no more recover 
for an injury caused by driving into a dangerous pit, of which he is 
ignorant, but of which ordinary care would have informed him, than 
for one caused by carelessly driving into a known pit. Norris v, 
Litchfield, 35 N. H. 271; Clark v, Barrington, 41 N. H. 44; Tucker 
V. Henniker, 41 N. H. 317; Winship v. Enfield, 42 N. H. 213, 214; 
Underbill v. Manchester, 45 N. H. 220. 

The defendant's negligence being found or conceded, the remaining 
question is, whether the plaintiff, by the exercise of ordinary care, 
could have escaped the injury. If he could not, he is free from fault, 
and is entitled to recover. If he could, he not only cannot recover for 



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SECT, vni.] NASHUA, Ac. CO. V. WORCESTER, Ac. CO. 291 

his own injury, but is himself liable to the other party, if the latter is 
injured ; and the case becomes one of the second class, of which Davies 
V. Mann, 10 M. & W. 546, is an instance. The defendant is liable 
here for the same reason that, as plaintiff, he could not recover, — that 
is to say, because ordinary care on his part would have prevented the 
injury. The fact that one has carelessly exposed his property in a 
dangerous situation does not absolve his neighbors from the obligation 
of conducting themselves in regard to it with ordinary care. An in- 
jury which that degree of care would prevent is caused by the want of 
it, and not by the owner's negligence in leaving his property in a 
perilous position. A surgeon, called to set a leg carelessly broken, can- 
not successfully urge, in answer to a suit for mal-practice, that the 
patient's negligence in breaking his leg caused the crooked or short- 
ened limb. Lannen v. Albany Gas-light Co., 44 N. Y. 459, 463; Hib- 
bard v, Thompson, 109 Mass. 286, 289. So far as the question of civil 
liability is concerned, there is no distinction, except it may be in the 
measure of damages (Fay v. Parker, 53 N. H. 342, Bixby v. Dunlap, 
56 N. H. 456), between wilful and negligent wrongs. One who, with- 
out reasonable necessity, kills his neighbor's ox, foimd trespassing in 
his field, is equally liable whether he does it purposely or carelessly. 
Aldrich v. Wright, 53 N. H. 398; Mclntire v. Plaisted, 57 N. H. 606; 
Cool. Torts, 688-694. Mann would be no more liable for wilfully 
shooting the fettered ass which Davies has carelessly left in the public 
highway, than he is for the running over it, which, by ordinary care, 
he could avoid. The owner's negligence, in permitting the ox to stray 
and in leaving the ass fettered in the street, although without it the 
injury would not happen, is no more the cause, in a legal sense, of 
the negligent than of the wilful wrong. In each case alike, — as in 
that of the broken leg, — it merely affords the wrong-doer an opportu- 
nity to do the mischief. Bartlett v. Boston Gas-light Co., 117 Mass. 
533; Clayards v. Dethick, 12 Q. B. 439, 445. 

Knowledge, or its equivalent, culpable ignorance, and ignorance 
without fault of the situation, are circumstances by which, among 
others, the requisite measure of vigilance is determined. GriflSn v. 
Auburn, 58 N. H. 121, 124; Pahner v. Bearing, 93 N. Y. 7; Robin- 
son V. Cone, 22 Vt. 213. The question of contributory negligence is 
not involved. The wrong, if any, is the negligent injury of property 
carelessly exposed to danger. The only question is, whether the de- 
fendant could have prevented it by ordinary care. If he could not, he 
is without fault, and not liable. If he could, his negligence is, in law, 
the sole cause of the injury. Davies v. Mann, 10 M. & W. 546; 
Radley v. London, &c. Railway, 1 App. Ca. 754; Mayor of Colchester 
V. Brooke, 7 Q. B. 377; Isbell v. N. Y. & N. H. Raihtjad, 27 Conn. 
393; Trow v. Vt. Central Raikoad, 24 Vt. 487; Harlan v. St. Louis, 
&c. Railroad, 64 Mo. 480; Kerwhacker v. Cleveland, &c. Railroad, 3 
Ohio St. 172. 



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292 NASHUA, Ac. CO. V. WORCESTER, Ac. CO. [CHAP. H. 

The law is not aflfected by the presence or the absence of the par- 
ties, nor by the difficulty of applying it to complicated facts. To 
warrant a recovery where both parties are present at the time of the 
injury, as well as in other cases, ability on the part of the defendant 
must concur with non-ability on the part of the plaintiff to prevent it 
by ordinary care. Their duty to exercise this degree of care is equal 
and reciprocal; neither is exonerated from his obligation by the pres- 
ent or previous misconduct of the other. The law no more holds one 
responsible for an unavoidable, or justifies an avoidable, injury to the 
person of one who carelessly exposes himself to danger, than to his 
property, similarly situated in his absence. He who cannot prevent 
an injury negligently inflicted upon his person or property by an in- 
telligent agent, " present and acting at the time " (State v. Railroad, 
52 N. H. 528, 557; White v. Winnisinmiet Co., 7 Cush. 155, 157; 
Robinson v. Cone, 22 Vt. 213), is legally without fault, and it is im- 
material whether his inability results from his absence, previous negli- 
gence, or other cause. On the other hand, his neglect to prevent it, if 
he can, is the sole or co-operating cause of the injury. No one can 
justly complain of another's negUgence, which, but for his own wrong- 
ful interposition, would be harmless. Parker v, Adams, 12 Met. 415. 

Cases of this class assume a great variety of aspects. While all are 
governed by the fundamental principle, that he only who by ordinary 
care can and does not prevent an injury, is responsible in damages, it 
is impossible to formulate a rule in language universally applicable. 
A statement of the law correct in its application to one state of facts 
may be inaccurate when applied to another. Instructions to the jury 
proper and sufficient in a case of the first class, would be not only 
inappropriate but incorrect in one of the second class. The doctrine 
laid down in Tuff v. Warman, 5 C. B. n. s. 573, 585, however just 
and well suited to the evidence in that case, was held erroneous as 
applied to the facts in Murphy v. Deane, 101 Mass. 455, 464r-466, and, 
as a general proposition, seems indefensible. 

An accident may result from a hazardous situation caused by the 
previous negligence of one or both parties. If, at the time of the 
injury, the defendant is unable to remove the danger which his negli- 
gence has created, the case becomes, in substance, one of the first 
class; the plaintiff can recover or not, according as, by ordinary care, 
he can or cannot protect himself from the natural consequences of the 
situation. If the plaintiff, in like manner, is imable to obviate the 
danger which his prior negligence has produced, the case becomes, 
substantially, one of the second class; he can recover or not, accord- 
ing as the defendant, by the same degree of care, can or cannot avoid 
the natural consequences of such negligence. If due care on the part 
of either at the time of the injury would prevent it, the antecedent 
negligence of one or both parties is immaterial, except it may be as 
one of the circumstances by which the requisite measure of care is to 



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SECT. Vni.] NASHUA, Ac CO. V. WORCESTER, Ac CO. 293 

be determined. In such a case the law deals with their behavior in 
the situation in which it finds them at the time the mischief is done, 
regardless of their prior misconduct. The latter is incuria, but not 
incuria dans locum injuriae, — it is the cause of the danger; the 
former is the cause of the injury. Metropolitan Railway v. Jackson, 
3 App. Ca. 193, 198; Dublin, &c. Railway v. Slattery, 3 App. Ca. 
1155, 1166; Davey v. London, &c. RaUway, 12 Q. B. Div. 70, 76; 
Churchill v. Rosebeck, 15 Conn. 359, 363-365. 

If a person, who by his carelessness is put in a position perilous to 
himself and to others, while in that position does all that a person of 
average prudence could, he is guilty of no wrong towards another who 
embraces the opportunity negligently to injure him, or who receives 
an injury which proper care on his part would prevent. It would 
doubtless be esteemed gross carelessness to navigate the Atlantic in a 
vessel without a rudder, but if the owner, while sailing his rudderless 
ship with ordinary care, is negligently run down by a steamer, the 
latter must pay the damages, and can recover none if it is injiu^. 
Dowell V, Steam Navigation Co., 5 E. & B. 195; Haley v, Earle, 30 
N. Y. 208; Hoffman v. Union Ferry Co., 47 N. Y. 176. If the vessel, 
by reason of its lack of a rudder, runs upon and injures the steamer, 
both being in the exercise of ordinary care at the time, the former 
must pay the damages. He who by his negligence has produced a dan- 
gerous situation is responsible for an injury resulting from it to one 
who is without fault. 

If, at the time of the injury, each of the parties, or, in the absence 
of antecedent negligence, if neither of them could prevent it by ordi- 
nary care, there can be no recovery. The comparatively rare cases of 
simultaneous negligence will ordinarily fall under one or the other of 
these heads. If the accident results from the combined effect of the 
negligence of both parties, that of neither alone being suflScient to pro- 
duce it, proof by the plaintiff that due care on the part of the defend- 
ant would have prevented it will not entitle him to recover, because 
like care on his own part would have had the same effect. If the mis- 
conduct of each party is an adequate cause of the injury, so that it 
would have occurred by reason of either's negligence without the 
co-operating fault of the other, proof by the plaintiff that by due care 
he could not have prevented it will not entitle him to recover, because 
no more could the defendant have prevented it by like care. Murphy 
V. Deane, 101 Mass. 464, 465; Churchill v. Holt, 131 Mass. 67. In 
each case alike they are equally in fault. To warrant a recovery, the 
plaintiff must establish both propositions, namely, that by ordinary 
care he could not, and the defendant could, have prevented the injury. 
State V. Railroad, 52 N. H. 528; Bridge v. Grand Junction Railway, 
3 M. & W. 244; Dowell v. Steam Navigation Co., 5 E. & B. 195; Tuff 
V, Warman, 6 C. B. n. b. 573; Davey v, London, Ac. Railway, 12 
Q. B. Div. 70; Munroe v. Leach, 7 Met. 274; Lucas v. New Bedford, 



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294 GATES V. METROPOLITAN ST. RY. CO. [CHAP. II. 

Ac. Railroad, 6 Gray, 64; Murphy v. Deane, 101 Mass. 465; Hall v. 
Ripley, 119 Mass. 135; Button v. Hudson, &c. Railroad, 18 N. Y. 
248; Austin v. N. J. Steamboat Co., 43 N. Y. 75; Barker v. Savage, 
45 N. Y. 194; Cool. Torts, 674, 675, and cases cited. 

In the comparatively unf requent cases of the third class, a negligent 
plaintiff can seldom, iif ever, recover. Where both parties are care- 
less, they are usually, if not always, equally in fault; ordinary care on 
the part of either would prevent the injury. Not being present on the 
occasion of the accident, neither can, in general, guard against the 
consequences of the other's negligence. Blyth v. Topham, Cro. Jac. 
158; Sybray v. White, 1 M. & W. 435; Williams «. Groucott, 4 B. 

6 S. 149; Lee v. Riley, 18 C. B, n. s. 722; Wilson v. Newberry, L. R. 

7 Q. B. 31; Lawrence v. Jenkins, L. R. 8 Q. B. 274; Firth v. Bowling 
Iron Co., 3 C. P. Div. 254; Crowhurst v. Amersham Burial Board, 4 
Ex. Div. 5; Bush v. Brainard, 1 Cow. 78; Lyons v. Merrick, 105 
Mass. 71; Page v. Olcott, 13 N. H. 399. 

If there are actions for negligence of such a character that the rights 
of the parties are not determinable by the application of these princi- 
ples, the present case is not one of them. If, notwithstanding the 
defendants' negligence, the plaintiffs, by ordinary care, could have 
prevented the fright of the horse, or its running, after the fright, or, 
in the absence of ability to do either, if they could have avoided the 
running upon and injury to Clapp, their misconduct, and not that of 
the defendants, was the cause of the accident, and they caimot recover. 
On the other hand, if the plaintiffs' carelessness consisted solely in 
permitting the horse to be where it was at the time, and ordinary care 
by the defendants would have prevented its fright, or, if the plaintiffs, 
by proof of any state of facts competent to be shown under the dec- 
laration, can make it appear that at the time of the occurrence they 
could not, and the defendants could, by such care have prevented the 
accident, they are entitled to recover. Demurrer overruled. 



GATES V. METROPOLITAN STREET RAILWAY 
COMPANY 

Supreme Court, Missouri, May 21, 1902. 

Reported in 168 Missouri Reports, 535, 647-649. 

Marshall, J. . . . Instructions three and seven given for the defendant 
sharply drew a distinction between the negligence of the defendant and the 
contributory negligence of the plaintiff. Those instructions declared the law 
to be that the defendant was not hable unless its negligence was the direct 
cause of the injury, while the plaintiff was not entitled to recover if his negli- 
gence " but contributes to the injury." That is, that the defendant was liable 
only for direct negligence, while the plaintiff was cut off from recovery if he 
was guilty of any negligence, however slight or remote or indirect it may have 
been. 



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SECT. VIII.] NIEBOEB V. DETROIT ELECTRIC RAILWAY 295 

The law is that a defendant is liable if his negligence was the direct and 
proximate cause of the injury, unless the plaintiff has also been guilty of such 
negligence as directly contributed to the happening of the injury, and the 
defendant is not liable no matter how negligent he may have been if the plain- 
tiff's negligence has thus contributed to the injury, for the doctrine of compar- 
ative negligence has never obtained in this State. Hurt v. Railroad, 94 Mo. 
264. In each instance the negligence and the contributory negligence must be 
direct, that is, must have entered into and formed a part of the efficient cause 
of the accident. Hoepper v. Hotel Co., 142 Mo. 388; Beach on Contr. Neg. (2 
ed.), sec. 24; Matthews v. Toledo, 21 Ohio Cir. Ct. Rep. 69; Dunkman v. 
Railroad, 16 Mo. App. 548; Corcoran v. Railroad, 105 Mo. 399; Murray v, 
RaihDad, 101 Mo. 236; KeUny v. Raihroad, 101 Mo. 67; Hicks v. Raihx)ad, 
46 Mo. App. 403; Pinnell v. Railroad, 49 Mo. App. 170; Meyers v. Railroad, 
59 Mo. 223. 

Mere negligence, without any resulting damage, no more bars a plaintiff's 
recovery than it creates a liability against a defendant. Dickson t;. Railroad, 
124 Mo. 140. Remote negligence which does not become an efficient cause, 
neither creates nor bars a liability. Kennedy t;. Railroad, 36 Mo. 351 ; Meyers 
V, Railroad, 59 Mo. 223. It is oidy where the plaintiff's negligence contributes 
directly to his injury that it precludes his recovery therefor. Moore v. Rail- 
road, 126 Mo. 265. And the plaintiff's contributory negligence must mingle 
with the defendant's negligence as a direct and proximate cause in order to bar 
a recovery. Nolan v. Shickle, 69 Mo. 336; Frick v. Raihx)ad, 75 iS/lo, 542. 

These instructions were, therefore, erroneous, and as the jury was misdi- 
rected and as the plaintiff had made out a prima fade case, he was entitled to 
have the law properly declared to the jury, and the trial court did right in 
granting a new trial.^ 



Carpenter, J., m NIEBOER v. DETROIT ELECTRIC 

RAILWAY 

(1901) 128 Michigan, 486, 491, 492.* 

Carpenter, J. "... The law by which it is determined whether or not 
the contributory negligence of the plaintiff bars recovery is very uncertain. 
The adjudicated cases are by no means harmonious, and there is an irreconcil- 
able conflict between the principles announced by eminent judges and the 
text-book writers. It has been stated that the plaintiff cannot recover if the 
injury complained of would not have occurred without his negligence. It has 
also been stated that plaintiff's negligence will not bar his recovery if due care 
on the part of the defendant would have prevented the injury. If the first 
statement is correct, contributory negligence always prevents a recovery; if 
the second statement is correct, contributory negligence never prevente re- 
covery. The truth is that the first statement can be correctly applied only in 
cases of simultaneous negligence, as in the case of an injury to a person while 
crossing a railway in consequence of his own and the railway company's negli- 
gence. The second statement can be correctly applied only in cases of suc- 

* Only a portion of the opinion is printed. 

* This opinion of Carpenter, J., was given in the Circuit Court; and was 
quoted by Moore, J., in his dissenting opinion in the Supreme Court. 



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296 DROWN V. NORTHERN OfflO TRACTION CO. [CHAP. U. 

cessive negligence, as in the famous Donkey Case, of Davies v. Mann, 10 Mees. 
& W. 546, where defendant negligently ran into and injured the plaintiff's don- 
key, which plaintiff had negligently permitted to go unattended on the 
highway. The test almost universally approved is whether or not plaintiff's 
negligence is the proximate cause of his injury. If it is, he cannot recover; if it 
is not, he can. Even this test has been criticised on the ground that the term 
' proximate ' is misleading. I think this criticism just and important. The 
word * proximate ' is ordinarily used to indicate the relation between defend- 
ant's negligence and the plaintiff's injury. As so used, it has not the same 
meaning that it has when used to indicate the relation between plaintiff's 
negligence and plaintiff's injury. To illustrate, suppose in the case of Davies 
V. Mann, above referred to, that, as a result of the collision between the cart 
and the donkey, a third person had been injured ; I think all will agree that the 
owner of the donkey, as well as the owner of the cart, would have been liable. 
See Lynch v. Nurdin, 1 Q. B. (n. s.) 29. And we have already seen that the 
negligence of the owner of the donkey was not so related to the collision as to 
preclude recovery in a suit by him against the owner of the cart. As used in 
relation to contributory negligence, the term ' proximate ' simply means that 
in some way the relation between plaintiff's n^gence and his injury is more 
remote than that between defendant's negligence and the injury." ^ 



DROWN V. NORTHERN OHIO TRACTION COMPANY 

Supreme Court, Ohio, Mat 7, 1907. 

Reported in 76 Ohio Stale Reports, 234. 

Action for damage done to plaintiff's buggy by an electric car which came 
up behind it and hit it. Answer: denying that defendant was negligent, and 
alleging negligence on plaintiff's part. 

On the trial, it appeared that Hardy, plaintiff's driver, drove upon the 
track without looking behind to see if a car was coming. 

Defendant requested the following instructions: — 

(3) If the jury find from the evidence that the plaintiff, through his agent, 
Hardy, and the defendant were both negligent, and that the negligence of 

1 " We shall immediately see, moreover, that independent negligent acts of A 
and B may both be proximate in respect of harm suffered by Z, though either of 
them, if committed oy Z himself, would have prevented him from having any 
remedy for the other. Thus it .appears that the term 'proximate * is not used in 
3e in fixinga neglisent defendant's liability and a negligent 



precisely the same sense i ^ 

plaintiff's disability." Pollock, Torts, 6th ed. 447. 

"... In determining whether the cause of the accident is proximate or re- 
mote, the same test must oe appUed to the conduct of the injured party as is to be 
applied to the defendant. The conduct of the latter cannot be judged by one rule 
and that of the former by some other rule." — O'Brien, J., in Rider v. Syracuse 
R. Co., 171 N. Y. 139, 154. 

[An instruction as to the meaning of the word " proximately " intimates] " that 
there is a difference between the meaning of the word when applied to the defend- 
ant and when applied to the plaintiff. 'There is no such difference. Contributory 
negligence on the part of the plaintiff must bear the same proximate relation to the 
result as the actionable negli^nce of the defendant. It need not be the sole cause, 
and it may contribute but slightly, but it must be a proximate cause in the same 
sense that the defendant's negligence must be proximate." Winslow, J., in 
Boyoe v, Wilbur Lumber Co., 119 Wis. 642, 64^-650. 



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SECT. VIII.] DROWN V. NORTHERN OHIO TRACTION CO. 297 

both directly contributed to cause the injury complained of in plaintiff's 
petition, then your verdict should be for the defendant. 

(4) If the jury find that the negligence of both plaintiff's agent and the de- 
fendant combined so as to directly cause the injury complained of by plaintiff, 
then your verdict should be for the defendant. 

These requests to instruct were refused. 

The court, among other instructions, charged in substance as follows: — 

If you find that the motorman could, by the exercise of ordinary care, have 
seen the plaintiff and stopped the car, and that by reason of the failure to stop 
the car Hardy's team was knocked down and injured, it would be such negli- 
gence on the part of the defendant as would entitle the plaintiff to recover, 
IMDvided Hardy was free from contributory negligence on his part. 

If Hardy was on this track driving south, and you find that he was negligent 
in being on it as he was, his failure to look or failure to watch to avoid injury, 
if he was negligent, would not prevent him from recovering in this suit, if the 
motorman, after discovering him in that position, could have, by the use of 
reasonable and ordinary care, avoided the injury by stopping the car. [This 
was a restatement in concrete form of an abstract proposition ah*eady stated in 
the charge.] 

In the Common Pleas Court there was a verdict for plaintiff and judgment 
thereon. The Circuit Court reversed the judgment of the Common Pleas. 
Plaintiff brought error.* 

Davis, J. Under the issues in this case, evidence was introduced tending to 
prove that the plaintiff's agent was guilty of negligence directly contributing 
to the injury to plaintiff's property. If Uie driver of the plaintiff's team, im- 
mediately upon entering Mam Street, and without afterwards looking to the 
north, as he admits, drove southward upon the track until the car coming from 
the north overtook and collided with the buggy, he was negligent; because the 
street was open and unobstructed for from two hundred to two hundred and 
fifty feet from the point at which he entered upon it, and it was not necessary 
for him to go upon the street railway track, and because, the night being dark, 
he unnecessarily put himself in a place of obvious danger and continued 
therein imtil the moment of the accident, without looking out for an approach- 
ing car or doing anything whatever to avoid injury, apparently risking his life 
and the property of his principal upon the presumption that the defendant's 
employees would make no mistakes nor be guilty of any negligence. If, on the 
other hand, he drove along the street until he came to the obstruction and 
then turned out upon the track to go around it without again looking, as his 
own testimony shows that he did not, and was then almost in the same instant 
struck by the car, he was negligent. Upon either hypothesis, assuming that 
the defendant was negligent in not keeping a proper lookout, or was otherwise 
not exercising ordinary care to prevent collision with persons lawfully on its 
track, the plaintiff could not recover, if it should appear in the case that the 
negligence of both is contemporaneous and continuing until after the moment 
of the accident, because, in such case the negligence of each is a direct cause of 
the injury without which it would not have occurred, rendering it impracti- 
cable in all such instances, if not impossible, to apportion the responsibility 
and the damages. Suppose, for example, that not only the buggy and horses 

* The statement has been abridged and the arguments and part of the opinion 
are omitted. 



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298 DROWN V. NORTHERN OHIO TRACTION CO. [CHAP. II, 

had been injured, but the defendant's car also, by what standard could the 
extent of liability of either party be determined ? Timmons v. The Central 
Ohio Raihoad Co., 6 Ohio St. 105; Village of Conneaut v. Naef, 54 Ohio St. 
529, 531. In short, there can be no recovery in such a case unless the whole 
doctrine of contributory negligence, a doctrine founded in reason and justice, 
should be abolished. 

Under these circumstances, therefore, it was not sufficient to say to the jury 
that if they should find that the motorman who had charge of the car which 
struck the team, could by the exercise of ordinary care have seen the team and 
could have stopped the car and that by reason of the failure to do so the team 
was injured, it would be such negligence by the defendant as would entitle the 
plaintiff to recover, provided that the plaintiff's driver was " free from contrib- 
utory negligence." The defendant had the right to have the jury specifically 
instructed, as it requested, that if the jury should find from the evidence that 
both the plaintiff and the defendant, through their agents, were negligent, and 
that the negligence of both combined so as to directly cause the injury com- 
plained of, then the verdict should be for the defendant. The court refused to 
so instruct the jury, and the circuit court correctly held that the refusal to so 
charge was erroneous. 

The error in refusing the defendant's request to charge, was extended and 
made much more prejudicial when the court, after giving instructions as to 
contributory negligence by the plaintiff in very general terms, proceeded to 
impress upon the jury, by repetition and with some emphasis, the doctrine 
known as " the last chance." This doctrine is logically irreconcilable with the 
doctrine of contributory negligence, and accordingly it has been vigorously 
criticised and warmy defended. Probably, as in many such controversies, the 
truth lies in middle ground; but it is certain that the rule is applicable only in 
exceptional cases, and the prevalent habit of incorporating it in almost every 
charge to the jury in negligence cases, in connection with, and often as a part 
of, instructions upon the subject of contributory negligence, is misleading and 
dangerous. 

This confusion seems to arise either from misapprehension of the law or a 
want of definite thinking. The doctrine of the " last chance " has been clearly 
defined by a well-known text-writer as follows: " Although a person comes 
upon the track negligently, yet if the servants of the railway company, after 
they see his danger, can avoid injuring him, they are bound to do so. And, 
according to the better view with reference to injuries to travellers at highway 
crossings — as distinguished from injuries to trespassers and bare licensees 
upon railway tracks at places where they have no legal right to be — the ser- 
vants of the railway company are bound to keep a vigilant lookout in front of 
advancing engines or trains, to the end of discovering persons exposed to dan- 
ger on highway crossings; and the railway company will be liable for running 
over them if, by maintaining such a lookout and by using reasonable care and 
exertion to check or stop its train, it could avoid injury to them." 2 Thomp- 
son, Negligence, sec. 1629. The italics are the author's. Now, it must be 
apparent upon even a slight analysis of this rule th^t it can be applied only 
in cases where the negligence of the defendant is proximate and that of the 
plaintiff remote; for if the plaintiff and the defendant both be negligent and 
the negligence of both be concurrent and directly contributing to produce the 
accident, then the case is one of contributory negligence pure and simple. But 
if the plaintiff's negligence merely put him in the place of danger and stopped 



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SECT. VIII.] FULLER V. ILLINOIS CENTRAL R. R. CO. 299 

there, not actively continuing until the moment of the accident, and the de- 
fendant either knew of his danger, or by the exercise of such diligence as the 
law imposes on him would have known it, then, if the plaintiff's negligence 
did not concurrently combine with defendant's negligence to produce the 
injury, the defendant's negligence is the proximate cause of the injury and 
that of the plaintiff is a remote cause. This is all there is of the so-called doc- 
trine of " the last clear chance." A good illustration is found in the case of 
Railroad Co. v. Kassen, 49 Ohio St. 230. Kassen walked through the rear car 
of the train on which he was a passenger to the rear platform, from which he 
either stepped off or fell off upon the track, where he lay for about two hours, 
when he was run over by another train. It was held that, although Kassen 
may have been negligent in going upon the rear platform and stepping or fall- 
ing off, yet since the railroad company knew of his peril and had ample time 
to remove him or to notify the trainmen on the later train, its negligence in not 
doing so was the proximate cause of Kassen's death and the negligence of 
Kassen was remote. In that case the proximate cause and the remote cause 
were so clearly distinguishable, and it is so very evident from the opinion and 
the syllabus that this distinction was the real ground of the judgment of the 
court, that it is somewhat surprising that the doctrine of last chance as stated 
in that case should have been so often misinterpreted as a qualification of the 
doctrine of contributory negligence. 

It is clear, then, that the last chance rule should not be given as a hit or miss 
rule in every case involving negligence. It should be given with discrimina- 
tion. Since the plaintiff can recover only upon the allegations of his petition, 
if there is no charge in the petition that the defendant after having notice of 
the plaintiff's peril could have avoided the injury to plaintiff, and there is no 
testimony to support such charge, the giving of such a charge would be erro- 
neous. There is no such allegation in the petition in this case. But further, 
there is testimony tending to prove that the plaintiff's team was driven upon 
the street railway track in the night time; ahead of the car, and that it con- 
tinued on the track for a distance of two himdred and fifty feet until struck by 
the car, without taking any precaution to avoid accident. Assuming that the 
defendant was negligent in not seeing the buggy on the track and in not avoid- 
ing the accident, yet the plaintiff's negligence was continuous and was con- 
current at the very moment of the collision. It im)ximately contributed to 
the collision, for without it the collision would not have occurred. There was 
no new act of negligence by the defendant, which was independent of the con- 
current n^gence and which made the latter remote. Therefore there was 
no place in the case for the doctrine of " the last clear chance." 

[Remainder of opinion omitted.] Judgment of Circuit Court affirmed. 



McLain, J., IN FULLER v. ILLINOIS CENTRAL RAIL- 
ROAD COMPANY 
(1911) 100 Mi89i88ippi, 706, 716. 

McLain, J. . . . The rule is settled beyond controversy or doubt, first 
that all that is required of the railroad company as against a trespasser is the 
abstention from wanton or willful injury, or that conduct which is char- 
acterized as gross negligence; second, although the injured party may be 
guilty of contributory negligence, yet this is no defense if the injury were will- 



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300 FULLER V. ILLINOIS CENTRAL R. R. CO. [CHAP. U. 

fully, wantonly, or recklessly done or the party inflicting the injury was guilty 
of such conduct as to characterize it as gross; and, third, that the contribu- 
tory negligence of the prxty injured will not defeat the action if it is shown 
that the defendant might by the exercise of reasonable care and prudence have 
avoided the consequence of the injured party's negligence. This last principle 
is known as the doctrine of the " last clear chance." The origin of this doc- 
trine is found in the celebrated case of Davies v, Mann, 10 Mees. & W. 545. 
... It is impossible to follow this case through its numerous citations in 
nearly every jurisdiction subject to Anglo-American jurisprudence. For the 
present it will be sufficient to say that the principle therein announced has 
met with practically almost universal favor. It has been severely criticised 
by some text-writers. . . . The law as enunciated in that case has come to 
stay. . . . 

An analytical examination of the adjudged cases upon this subject wiU dem- 
onstrate the correctness of the above analysis, and, in addition, establish the 
soundness and technical accuracy annoimoed in Davies v. Mann, supra. This 
case has been criticised most severely ... by courts of high authority, but 
these courts have utterly and entirely failed to appreciate the base upon which 
the principle is bottomed, and in repudiating the principle do so upon the idea 
that Davies v, Mann establishes the much-abused comparative negligence doc- 
trine, a doctrine repudiated by this court, but established in this state by 
Laws 1910, ch. 135, p. 125. (But this statute has no reference to the instant 
case because passed subsequent to the injuries complained of.) In order for 
the injured party's negligence to bar recovery, all of the authorities hold that 
it must be the proximate cause; otherwise, it is not contributory. Now, when 
it is fully understood that the negligence of the injured party must be the 
proximate cause in order to bar the remedy (and, as said above, all authorities 
everywhere, ancient and modem, so affinn), the principle announced in 
Davies v, Mann must, from necessity, be the correct and true rule. If the 
proximate and immediate cause of tie injury — the causa causans — is the 
controlling and determining factor in ascertaining whether the injured party 
has the right to recover or whether the injuring party is not liable, then it must 
follow, as night the day, that the party who has the last opportimity to avoid 
the injury is the one upon whom the blame shall fall. To express the idea 
differently: If the injured party's negligence be remote, and not proximate, 
he can recover against the party who is guilty of negligence proximately con- 
tributing or causing the injury. The North Carolina courts have perhaps 
more satisfactorily and more clearly elucidated this question than have any 
opinions that have come under the writer's eye. In Smith v. N. & S. R.R. Co., 
114 N. C. 728, 19 S. E. 863, 923, 25 L. R, A. 287, it is said that the rule in 
Davies v, Mann simply furnishes a means for ascertaining whether the plain- 
tiff's negligence is a remote or proximate cause of the injury; that, before the 
introduction of this rule, any negligence on the part of the plaintiff, which in 
any degree contributes to the injury, was judicially treated as the proximate 
cause, and constituted contributory negligence which barred recovery. The 
same is clearly stated in Nashua Iron & Steel Co. v. W. & N. R. R. Co., 62 
N. H. 159, 163, et seq. The antecedent negligence of the injured party, having 
been thus relegated to the position of a condition or remote cause of the acci- 
dent, it cannot be regarded as contributory, since it is well established that 
negligence, in order to be contributory, must be at least one of the proximate 
causes.^ 

» Compare Rider v. Syracuse R. Co., 171 N. Y. 139. 



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SECT. VIII.] BUTTERLY V. MAYOR OP DROGHEDA 301 

Lord O'Brien, C. J., in BUTTERLY v. MAYOR OF 
DROGHEDA 

[1907] 2 IrUh Reports, 134, 137. 

Lord G'Brebn, L. C. J.: — 

The facts which give rise to the controversy we have to determine, in this 
case, are comprised within a narrow compass. The plaintiff, on a Saturday 
morning, was coming into the town of Drogheda in a car driven by himself. 
Coming near the town he, as he alleged, was overtaken by the horse and car of 
Mrs. Morgan. She desired to pass. He says he made way for her, and, in 
doing so, ran against a heap of stones on the road, and his car was upset and 
he was injured. It appears that there were two heaps of stones on the road. 
They had been, inmiediately before the collision, thrown on the road in order 
that they might be spread on the road. The man who brought the load, and 
had thrown them on the road, was a servant of the defendants. The intention 
was to spread them immediately on the road. The man who brought them 
was in fact, at the time of the accident, engaged in spreading the heap next the 
town, some little distance from the heap where the accident occurred. Now 
the first heap, where the accident occurred, was placed on the road in such a 
position that there was between it and the right side of the road a space of 
12 feet, and between this heap and the left side of the road, 6 feet. That is to 
say, on the right side there was a space sufficient for two cars to pass simul- 
taneously, and on the left a space for one car to pass. The plaintiff's case was 
that, Mrs. Morgan overtaking him, he made room for her, pulled to the left, 
and without any default of his, his car ran upon the heap and was capsized. 
His case was that Mrs. Morgan caught him exactly where the heap was, and, 
in endeavoring to avoid her, and without any default or negligence on his part, 
the accident occurred. Now, three questions were left to the jury: — 

1. Were the defendants, by their workmen, guilty of negligence ? Yes. 

2. Was the plaintiff guilty of negligence ? Yes. 
And if so — 

3. Could the defendants, by the exercise of ordinary care, have avoided 
the consequence of the plaintiff's negligence ? Yes. 

I have invariably refused, in these negUgence cases, to leave questions in 
this form to a jury. This formula appears to me calculated to perplex and 
embarrass a jury. No doubt this formula is used, and judges do their best to 
explain it, but I fear that when juries take up the questions in the jury-room, 
the explanation has not the desired effect. Chief Justice Monahan consist- 
ently refused to put the questions in this shape to the jury. I have always 
tried these cases on two questions: 1st, Were the defendants guilty of ne^- 
gence 7 and, 2d, if so, was the defendant's negligence the real, chrect, and 
immediate cause of the misfortune? Now, the jury in the present case 
answered the questions submitted to them in the way I have read. I am of 
opinion that the answer to the question finding that the plaintiff was guilty of 
negligence, determines the matter in favor of the defendants. It is quite 
plain, in my opinion, that his negligence was a direct contributory cause of the 
accident. It was a cause which brought him on the heap of stones. Assuming 
that there was negligence on the part of the defendants in having the stones 
there, still his negligence must have contributed to his running up against 



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302 BRITISH COLUMBIA RY. CO. V. LOACH [CHAP. H. 

them. He either did not keep a sufficient look-out, or his unskilful driving 
brought him on the stones. Getting on the stones^ through negligence, was at 
least a contributory cause of the accident. It directly contributed to the 
accident. If there be two causes directly contributing to the accident, one 
the negligence of the defendant and the other the negligence of the plaintiff, 
the result is a verdict for the defendant. 



BRITISH COLUMBIA ELECTRIC RAILWAY COMPANY 

V. LOACH 

In the Privy Council, July 26, 1915. 
Reported in [1916] Appeal Cases, 719. 

Lord Sumner. This is an appeal from a judgment of the Court of 
Appeal of British Columbia in favor of the administrator of the estate 
of Benjamin Sands, who was run down at a level crossing by a car of 
the appellant railway company and was killed. One Hall took Sands 
with him in a cart, and they drove together on to the level crossing, 
and neither heard nor saw the approaching car till they were close to 
the rails and the car was nearly on them. There was plenty of light 
and there was no other traffic about. The verdict, though rather 
curiously expressed, clearly finds Sands guilty of negligence in not 
looking out to see that the road was clear. It was not suggested in 
argumeift that he was not under a duty to exercise reasonable care, 
or that there was not evidence for the jury that he had disregarded 
it. Hall, who escaped, said that they went " right on to the track," 
when he heard Sands, who was sitting on his left, say " Oh," and 
looking up saw the car about fifty yards off. He says he could then do 
nothing, and With a loaded wagon and horses going two or three miles 
an hour he probably could not. It does not seem to have been sug- 
gested that Sands could have done any good by trying to jump off 
the cart and clear the rails. The car knocked cart, horses, and men 
over, and ran some distance beyond the crossing before it could be 
stopped. It approached the crossing at from thirty-five to forty-five 
miles an hour. The driver saw the horses as they came into view 
from behind a shed at the crossing of the road and the railway, when 
they would be ten or twelve feet from the nearest rail, and he at once 
applied his brake. He was then 400 feet from the crossing. If the 
brake had been in good order it should have stopped the car in 300 
feet. Apart from the fact that the car did not stop in time, but 
overran the crossing, there was evidence for the jury that the brake 
was defective and inefficient and that the car had come out in the 
morning with the brake in that condition. The jury foimd that the 
car was approaching at an excessive speed and should have been 
brought under complete control, and although they gave as their 
reason for saying so the presence of possible passengers at the str- 



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SECT. Vni.] BRITISH COLUMBIA RY. CO. V. LOACH 303 

tion by the crossing, and not the possibility of vehicles being on the 
road, there can be no mistake in the matter, and their finding stands. 
It cannot be restricted, as the trial judge and the appellants sought to 
restrict it, to a finding that the speed was excessive for an ill-braked 
car, but not for a properly-braked car, or to a finding that there was 
no negligence except the " original " negligence of sending the car 
out ill-equipped in the morning. 

Clearly if the deceased had not got on to the line he would have 
suffered no harm, in spite of the excessive speed and the defective 
brake, and if he had kept his eyes about him he would have perceived 
the approach of the car and would have kept out of mischief. If the 
matter stopped there, his administrator's action must have failed, for 
he would certainly have been guilty of contributory negligence. He 
would have owed his death to his own fault, and whether his negli- 
gence was the sole cause or the cause jointly with the railway com- 
pany's negligence would not have mattered. 

It was for the jury to decide which portions of the evidence were 
true> and, under proper direction, to draw their own inferences of fact 
from such evidence as they accepted. No complaint was made against 
the summing-up, and there has been no attempt to argue before their 
Lordships that there was not evidence for the jury on all points. If 
the jiuy accepted the facts above stated, as certainly they well might 
do, there was no further negligence on the part of Sands after he 
looked up and saw the car, and then there was nothing that he could 
do. There he was, in a position of extreme peril and by his own 
fault, but after that he was guilty of no fresh fault. The driver of the 
car, however, had seen the horses some perceptible time earlier, had 
duly appUed his brakes, and if they had been ^ective he could, as the 
jmy found, have puUed up in time. Indeed, he would have had 100 
feet to spare. If the car was 160 feet off when Sands looked up and 
said " Oh," then each had the other in view for fifty feet before the 
car reached the point at which it should have stopped. It was the 
motorman's duty, on seeing the peril of Sands, to make a reasonable 
use of his brakes in order to avoid injuring him, although it was by 
his own negligence that Sands was in danger. Apparently he did his 
best as things then were, but partly the bad brake and partly the 
excessive speed, for both of which the appellants were responsible, 
prevented him from stopping, as he could otherwise have done. On 
these facts, which the jury were entitled to accept and appear to have 
accepted, only one conclusion is possible. What actually killed Sands 
was the negligence of the railway company, and i^t his own, though 
it was a close thing. ^ 

Some of the judges in the Courts below appear to have thought that 
because the equipment of the car with a defective brake was the orig- 
inal cause of the collision, and could not have been remedied after 
Sands got on the line, no account should be taken of it in considering 



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304 BRITISH COLUMBIA RY. CO. V. LOACH [CHAP. H. 

the motorman's failure to avoid the collision after he knew that Sands 
was in danger. " You cannot charge up the same negUgence under 
different heads/' said Murphy, J., at the trial; "you cannot charge it 
up twice." "On the question of ultimate n^ligence," he observed, 
" that negligence must arise on the conditions as existing at the time 
of the accident. It would, of course, be absurd to say the company 
had any opportunity between the time that this rig appeared upon the 
track and the collision to remedy any defect in the brake. If there 
was such a defect I think it was original negligence and not what may 
possibly be termed ' ultimate negligence.' " 

In the Court of Appeal Macdonald, C. J. A., deUvering a dissentient 
judgment in favor of the present appellants, said: " Where one party 
negligently approaches a point of danger, and the other party, with 
like obligation to take care, negligently approaches the same point of 
danger, if there arises a situation which could be saved by one and not 
by the other, and the former then negligently fail to use the means in 
his power to save it, and injury is caused to the latter, that failure is 
designated ultimate negligence, in the sense of being the proximate 
cause of the injiuy. In this case it is sought to carry forward, as it 
were, an anterior negligent omission of the defendants, though con- 
tinuing, it is true, up to the time of the occurrence, and to assign to it 
the whole blame for the occurrence, although by no effort of the 
defendants or their servants could the situation at that stage have 
been saved." 

So, too, McPhillips, J. A., also dissenting, said: " Upon the evi- 
dence, whether it was because of defective brakes or any of the acts of 
negligence foimd against the defendants, none of them were acts of 
negligence arising after the act of contributory negUgence of the de- 
ceased, and cannot be held to be acts of negligence which, notwith- 
standing the later negligence of the deceased, warrant judgment 
going for the plaintiff. . . . The motorman after he saw the vehicle 
could not have stopped the car . . . therefore, as nothing could be 
then done by the motorman to remedy the ineffective brake, the want 
of care of the deceased was the direct and effective contributory cause 
of the accident resulting in his death." 

These considerations were again ui^ed at their Lordships' bar under 
somewhat different forms. It was said (1) that the negligence relied 
on as an answer to contributory negligence must be a new negli- 
gence, the initial negligence which founded the cause of action being 
spent and disposed of by the contributory negligence. Further, it 
was said (2) that if the defendants' negligence continued up to the 
moment of the collision, so did the deceased's contributory negU- 
gence, and that this series, so to speak, of repUcations and rebutters 
finally merged in the accident without the deceased ever having been 
freed from the legal consequence of his own negUgence having con- 
tributed to it. 



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SECT. Vin.] BRITISH COLUMBIA RY. CO. V. LOACH 305 

The last point fails because it does not correspond with the fact. 
The consequences of the deceased's contributory negligence continued, 
it is true, but, after he had looked, there was no more negligence, for 
there was nothing to be done, and, as it is put in the classic judgment 
in Tuflf V. Warman, (1868) 6 C. B. (n. s.) 573, 585, his contributory- 
negligence will not disentitle him to recover " if the defendant might 
by the exercise of care on his part have avoided the consequences of 
the neglect or carelessness of the plaintiflF." 

As to the former point, there seems to be some ambiguity in the 
statement. It may be convenient to use a phraseology which has been 
current for some time in the Canadian Courts, especially in Ontario, 
though it is not precise. The negligence which the plaintiff proves to 
launch his case is called " primary " or " original " negligence. The 
defendant may answer that by proving against the plaintifif " contrib- 
utory negligence." If the defendant fails to avoid the consequences 
of that contributory negligence and so brings about the injury, which 
he could and ought to have avoided, this is called " ultimate " or 
" resultant " negligence. The opinion has been several times ex- 
pressed, in various forms, that " original " negligence and " ultimate " 
negligence are mutually exclusive, and that conduct which has once 
been relied on to prove the first cannot in any shape constitute proof 
of the second. 

Here lies the ambiguity. If the " primary *' negligent act is done 
and over, if it is separated from the injury by the intervention of the 
plaintiflf's own negligence, then no doubt it is not the " ultimate " 
negligence in the sense of directly causing the injury. If, however, 
the same conduct which constituted the primary negligence is repeated 
or continued, and is the reason why the defendant does not avoid the 
consequences of the plaintiff's negligence at and after the time when 
the duty to do so arises, why should it not be also the " ultimate '' 
negligence which makes the defendant liable ? 

This matter was much discussed in Brenner v. Toronto Ry. Co., 
13 Ont. L. R. 423, when Anglin, J., delivered a very valuable judg- 
ment in the Divisional Court. The decision of the Divisional Court 
was reversed on appeal, 15 Ont. L. R. 195, (1908) 40 Can. S. C. R. 540, 
but on other grounds, and in their comments on the decision of the 
Divisional Court, Duff, J., in the Supreme Court, and also Chancellor 
Boyd in Rice v, Toronto Ry. Co., (1910) 22 Ont. L. R. 446, 450, and 
Hunter, C. J., m Snow v. Crow's Nest Pass Coal Co., (1907) 13 B. C. 
Rep. 145, 155, seem to have missed the point to which Anglin, J., had 
specially addressed himself. 

The facts of that case were closely similar to those in the present 
appeal, and it was much relied on in argument in the comii below. 
Anglin, J., following the decision in Scott v. Dublin and Wicklow 
Ry. Co., (1861) 11 Ir. C. L. Rep. 377, 394, observed as follows, 13 
Ont. L. R. 437, 439, 440: " Again, the duty of the defendants to the 



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306 BRITISH COLUBfBIA BY. CO. V. LOACH [CHAP. U. 

plaintiflF, breach of which would constitute ' ultimate ' negligence, 
only arose when her danger was or should have been apparent. Prior 
to that moment there was an abstract obUgation incumbent upon 
them to have their car equipped with eflScient emergency appUances 
ready and in condition to meet the requirements of such an occasion. 
Had an occasion for the use of emergency appliances not arisen, failure 
to fulfil that obligation would have given rise to no cause of action. 
Upon the emergency arising, that abstract obligation became a con- 
crete duty owing to the plaintiff to avoid the consequences of her 
neghgence by the exercise of ordinary care. . . . Up to that moment 
there was no such breach of duty to the plaintiff. In that sense the 
failure of the defendants to avoid the mischief, though the result of an 
antecedent want of care, was n^ligence which occurred, in the sense 
of becoming operative, immediately after the duty, in the breach of 
which it consisted, arose. It effectively intervened between the negli- 
gence of the plaintiff and the happening of the casualty. But there is 
a class of cases where a situation of imminent peril has been created, 
either by the joint negligence of both plaintiff and defendant, or it 
may be, by that of the plaintiff alone, in which, after the danger is or 
should be apparent, there is a period of time, of some perceptible 
dm-ation, during which both or either may endeavor to avert the 
impending catastrophe. ... If, notwithstanding the difficulties of 
the situation, efforts to avoid injury duly made would have been suc- 
cessful, but for some self-created incapacity which rendered such 
efforts inefficacious, the negligence that produced such a state of dis- 
ability is not merely part of the inducing causes — a remote cause or 
a cause merely sine qtia rum — it is, in very truth, the efficient, the 
proximate, the decisive cause of the incapacity, and therefore of the 
mischief. • . . Negligence of a defendant incapacitating him from 
taking due care to avoid the consequences of the plaintiff's negligence, 
may, in some cases, though anterior in point of time to the plaintiff's 
negl^ence, constitute * ultimate ' negligence, rendering the defendant 
liable notwithstanding a finding of contributory negligence of the 
plaintiff. ..." 

Their Lordships are of opinion that, on the facts of the presen 
case, the above observations apply and are correct. Were it otherwise 
the defendant company would be in a better position, when they had 
supplied a bad brake but a good motorman, than when the motorman 
was careless but the brake efficient. If the superintendent engineer 
sent out the car in the morning with a defective brake, which, on see- 
ing Sands, the motorman strove to apply, they would not be liable, 
but if the motorman failed to apply the brake, which, if applied, 
would have averted the accident, they would be liable. 

The whole law of neghgence in accident cases is now very well 
settled, and, beyond the difficulty of explaining it to a jiuy in terms of 
the decided cases, its application is plain enough. Many persons are 



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SECT. VIII.] BRITISH COLUMBIA RY. CO. V. LOACH 307 

apt to think that, in a case of contributory negligence like the present, 
the injured man deserved to be hurt, but the question is not one of 
desert or the lack of it, but of the cause legally responsible for the in- 
jury. However, when once the steps are followed the jury can see 
what they have to do, for the good sense of the rules is apparent. The 
inquiry is a judicial inquiry. It does not always follow the historical 
method and begin at the beginning. Very often it is more convenient 
to begin at the end, that is at the accident, and work back along the 
line of events which led up to it. The object of the inquiry is to fix 
upon some wrong-doer the responsibility for the wrongful act which 
has caused the damage. It is in search not merely of a causal agency 
but of the responsible agent. When that has been done, it is not neces- 
sary to pursue the matter into its origins; for judicial purposes they 
are remote. Till that has been done there may be a considerable se- 
quence of physical events, and even of acts of responsible human 
beings, between the damage done and the conduct which is tortious 
and is its cause. It is surprising how many epithets eminent judges 
have applied to the cause, which has to be ascertained for this judicial 
purpose of determining liability, and how many more to other acts and 
incidents, which for this purpose are not the cause at all. " Efficient 
or effective cause," " real cause," " proximate cause," " direct cause," 
" decisive cause," " immediate cause," " causa causans," on the one 
hand, as against, on the other, " causa sine qua non," " occasional 
cause," " remote cause," " contributory cause," " inducing cause," 
" condition," and so on. No doubt in the particular cases in which 
they occur they were thought to be useful or they would not have 
been used, but the repetition of terms without examination in other 
cases has often led to confusion, and it might be better, after pointing 
out that the inquiry is an investigation into responsibility, to be con- 
tent with speaking of the cause of the injury simply and without 
qualification. 

In the present case their Lordships are clearly of opinion that, 
under proper direction, it was for the jury to find the facts and to de- 
termine the responsibility, and that upon the answers which they re- 
turned, reasonably construed, the responsibility for the accident was 
upon the appellants solely, because, whether Sands got m the way of 
the car with or without negligence on his part, the appellants could 
and ought to have avoided the consequences of that negligence, and 
failed to do so, not by any combination of negligence on the part of 
Sands with their own, but solely by the negligence of their servants 
in sending out the car with a brake whose ineflSciency operated to , 
cause the collision at the last moment, and in running the car at an 
excessive speed, which required a perfectly eflScient brake to arrest it. 
Their Lordships will accordingly humbly advise His Majesty that the 
appeal should be dismissed with costs.^ 

The statement of facts tfnd argument of counsel are omitted. 



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308 NEHRING V. THE CONNECTICUT CO. [CHAP. U. 

NEHRING V. THE CONNECTICUT COMPANY 

Supreme Court, Connecticut, July 19,1912. 

Reported in 86 ConnecticiU ReporU, 109. 

Prentice, J. It is clear and unquestioned that there was evidence, 
justifying its submission to the jury, tending to establish the defend- 
ant's negligence in the premises directly contributing to produce the 
fatal injury which the plaintiff's intestate suffered. The verdict for 
the defendant was directed upon the ground that the plaintiff had 
failed to present evidence, suflScient to go to the jury, tending to estab- 
lish the intestate's freedom from contributory negligence. Plaintiff's 
counsel in his brief formally takes issue with this conclusion of the 
court, asserting that the evidence was such as entitled the plaintiff to 
go to the jury upon the question of the intestate's negligence. It is 
apparent, however, that little reliance is placed upon this particular 
claim, and that the contention that the cowrt erred must fail unless 
the appeal which is made to the so-called doctrine of " the last clear 
chance," otherwise known as supervening or intervening negligence, 
is well made. This appeal is urged with vigor, so that the plaintiff's 
main contention, which alone calls for serious consideration, is that, 
notwithstanding the intestate's failure to use ordinary care, the de- 
fendant is liable through the operation of the doctrine referred to, 
which, it is said, the court disregarded. 

The notion appears to be more or less prevalent that this so-called 
doctrine is a discovery of recent years, that it embodies a new legal 
principle, and that this principle is one which invades the domain 
formerly assigned to contributory negligence, and sets limitations 
upon the operation of this latter doctrine so long and so deeply im- 
bedded in English and American jurisprudence. This4&43y no means 
true as respects either the age or the character and scope of the 
principle which it embodies. The names by which it has come to be 
known are indeed of recent origin, and perhaps its present vogue and 
the misconception which prevails as to its true place in the law of 
negligence are due in part to its thus being given an independent 
status in the terminology of the law. In fact, the principle is no 
modern discovery. It runs back to the famous " Donkey Case " of 
Davies v, Mann, 10 Mees. & W. 546, decided in 1842. It was dis- 
tinctly recognized by this court in 1858 in Isbell v. New York & 
N. H. R. Co., 27 Conn. 393. It was then not only recognized, but its 
true place in the law was assigned to it. It was diown to be no inde- 
pendent principle operating by the side of, and possibly overstepping 
the bounds of, other principles, but merely a logical and inevitable 
corollary of the long accepted doctrine of actionable negligence as 



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SECT. VIII.] NEHRINO V. THE CONNECTICUT CO. 309 

aflfected by contributory negUgence* The definition of its place, 
which was made in the clear-cut language of Judge Ellsworth, inexor- 
ably forbade that it could by possibility run counter in its application 
to the contributory negligence rule. This fundamental principle we 
have steadily adhered to. Smith v. Connecticut Ry. & Ltg. Co., 80 
Conn. 268, 270, 67 Atl. 888; EUiott v. New York, N. H. & H. R. Co., 
83 Conn. 320, 322, 76 Atl. 298, 84 Conn. 444, 447, 80 Atl. 283. 

There are, indeed, cases which give countenance to a different 
view upon this latter subject. But their dicta, oftentimes, not to say 
generally, uttered without an apparent comprehension of their logical 
consequence, would create havoc with the law, and leave it guideless, 
or with two conflicting guides. A sober second thought is, however, 
fast correcting this mistake, so that there has already come to be a 
general concurrence of the well-considered authorities in the view 
which has been taken in this jurisdiction. 

The contributory negligence rule has no practical application save 
in cases where the defendant has been guilty of actionable negligence. 
It proceeds upon the theory that whenever a person injured has con- 
tributed essentially to his injury by his own negligent conduct, the 
law will not give hun redress, even against another who may have been 
directly instrumental in pixxlucing the result. To furnish a basis 
for its application there must have been a concurrence of negligent 
conduct. This negligent conduct, furthermore, must have been of 
such a character and so related to the result as to entitle it to be con- 
sidered an efficient or proximate cause of it. If there is a failure to 
use due care on the part of either party at such a time, in such a way 
or in such a relation to the result that it cannot fairly be regarded as 
an efficient or proximate cause, the law will take no note of it. Caicsa 
proodmay non remoia, spedatur. 

It thus logically follows that, although a plaintiff may have failed 
to exercise reasonable care in creating a condition, or in some other 
way, which y^myf^ be fairly yaif^ in have been the proximate cause of 
the injuries of which he complains, the contributory negligence rule 
cannot be invoked against him. The question with respect to negligent 
conduct on the part of a person injured through the negligence of 
another, as affecting the former's right to recover, thus becomes re- 
solved in every case into one as to whether or not that conduct of his 
was a proximate cause of the injury. If it was, then the contributory 
negligence rule is applicable, and the plaintiff will by its operation 
be barred from recovery. If it was not, that rule has no pertinence 
to the situation, since there was no concurrence of negligence, without 
which there can be no contributory negligence in the legal sense. It 
is conduct of the latter kind — that is, conduct careless in itself, but 
not connected with the injury as a proximate cause of it — to which 
the so-called doctrine of " the last clear chance " relates, and that 
doctrine unbraces within its purview such conduct only. 



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310 NEHRING V. THE CONNECTICUT CO. [CHAP. 11. 

This being so, it may well ^be questioned whether the doctrine 
deserves a classification and a name as of an independent principle. 
But if, for convenience sake or other reason, it is to be dignified in 
that way, it is apparent that there is no manner of inconsistency be- 
tween it and the contributory-negligence rule, and that the domain of 
the latter rule is in no way invaded or narrowed by a fuU recognition 
of it. It follows that the decisive question in each case, where a plain- 
tiff injured is foimd to have been at fault in the premises from his 
failure to exercise the required degree of care, resolves itself into one 
as to whether that fault was or was not a proximate cause of the 
injury, and that the answer to that question will infallibly determine 
whether or not it will bar a recovery. 

Thus far we have had the way marked out for us by the clearly 
defined doctrine of former opinions. But the proposition just stated, 
which is thus supported, while sufficient for the determination of many 
cases and furnishing a helpful guide in most others, does not resolve 
all the difficulties which may be encountered. It leaves the question 
open as to when negligent conduct in a person injured in his person 
or property is to be regarded as a proximate cause of the injury. How 
close must be the causal connection between the negligence and the 
injury ? It is at this point that any real uncertainty or trouble arises 
under the doctrine of this jurisdiction. 

The negligence referred to in the claimed rule is, of course, that 
which the law so denominates, to wit, want of due care which is a 
proximate cause of harm. The proposition is not dealing with a lack 
of due care which the law ignores. When it speaks of the negligence 
ceasing, negligence in the legal sense is meant. It may in a given 
sense cease in the sense that prudent conduct takes its place. It may 
for all legal purposes cease through the relegation of it, as events pro- 
gress, to the domain of remote cause. In other words, it ceases when, 
and only when, the conditions of contributory negligence disappear. 
The claimed test thus solves no problems. It only brings one back, in 
doubtful cases, to the inquiry whether the plaintiff's conduct, lacking 
in due care, was of such a character, or so related to the injury, that it 
ought to be regarded as a proximate cause of it, as the real test which 
must be applied. 

The impossibility of framing any general abstract statement which 
will suffice to resolve the difficulties which may be presented under 
varying conditions, or to anticipate all such conditions, is apparent. 
We shall undertake no such task. There are, however, certain sets of 
conditions, of not infrequent occurrence, concerning which general 
conclusions may be made safely and profitably. 

There is, for instance, the occasional case where, after the plaintiff's 
peril, to which he has carelessly exposed himself or his property, be- 



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SECT. VIII.] NEHRING V. THE CONNECTICUT CO. 311 

comes known to the defendant, the latter introduces into the situation 
a new and independent act of negligence without which there would 
have been no injury. Such was the case of Smith v. Connecticut Ry. 
& Ltg. Co., 80 Conn. 268, 270, 67 Atl. 888, and it was there held, in 
accordance with sound reason, that this new negligence was to be 
regarded as the sole proximate cause of the accident which ensued. 
The rule for that type of case is thus furnished. 

Cases of -another class occasionally arise, where it is disclosed that 
the plainti£F has by his lack of care placed himself in a position of 
danger from which he either cannot, or cannot reasonably, escape after 
the discovery of his danger. Here, again, there can be no hesitation 
in saying, that if the defendant, after his discovery that the plaintiflF 
is in the situation described, fails to use reasonable care — and that is 
care proportioned to the danger — to save him from harm, and harm 
results from such failure, the defendant's want of care will be re- 
garded as the sole proximate cause, and the plaintifiTs a remote cause 
only. 

The situation just stated is not infrequently changed, in that means 
of escape were open to the plaintiff by the exercise of reasonable care, 
but it was apparent to the defendant, in season to have avoided the 
doing of harm by the exercise of due care, that the plaintiff would not 
avail himself of them. Here it is assumed that the situation of ex- 
posure had been created and established by the plaintiff's action before 
the period of time began within which the defendant, acting reason- 
ably, might have saved him, and that within that period the plaintiff 
did nothing to create or materially change that situation by active 
conduct which was not marked by reasonable care. Under the as- 
sumption he remains passive, in so far at least as negligent action is 
concerned, and can be regarded as careless only in this that he did not 
awake to his surroimdings and do what he reasonably could to avoid 
the threatened consequences of a situation which he had already 
negligently brought about. In such cases the hiunane, and, to our 
mind, the better reason, all things considered, leads to the conclusion 
to which our former opinions, already cited, commit us, and which a 
large number of cases elsewhere approve, that the want of care on the 
part of the plaintiff will be regarded as a remote and not a proximate 
cause. 

Another important variation is oftentimes introduced into the 
situation, in that the plaintiff continued as an active agent in pro- 
ducing the conditions under which his injury was received down to 
the time of its occurrence, or at least until it was too late for the de- 
fendant, with knowledge of his peril, to have saved him by the exercise 
of reasonable care under the circumstances. This variation imports 
into the situation an important factor. The plaintiff, during the 
period named, is not merely passively permitting an already fixed 
condition to remain unchanged. He is an actor upon the scene. He 



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312 NEHBINO V. THE CONNECTICUT CO. [CHAP. 11. 

is, by acts of his volition, bringing into the situation which confronts 
the defendant changed conditions and, in the fullest sense, co-oper- 
ating with the latter in bringing about the ultimate result. In such 
case his conduct must be regarded as a concurring efficient cause. It 
is, in the fullest sense, a proximate and not a remote one, making his 
negligence contributory. 

It is said, however, that there are cases, and undoubtedly there are, 
where it is reasonably apparent to the one who inflicts the injury that 
the injured one is careless of his safety^ and that, in continuance of 
his carelessness, he is about to place himself in a position of danger, 
which he subsequently does, and where the former thereafter, having a 
reasonable opportimity to save him from harm, fails to do so; and it 
is contended that in such cases the conduct of the injured person 
should be regarded as a remote cause only of the resulting harm. We 
are unable to discover any logical reason for such a conclusion, or any 
place at which a practical or certain line of division can be drawn 
between that careless conduct of a man, playing some part in an injury 
to him, which the law will regard as having that causal connection 
with the injury which makes it a proximate cause, and that careless 
conduct which will not be so regarded, if the contention imder con- 
sideration is to be approved. The conduct of the man who inflicts 
the injury under such general conditions may indeed be such that it 
is open to the charge of wilfulness or wantonness. If so, the case is 
not one of negligence, and the defense of contributory negligence 
would not be available. Rowen v. New York, N. Y. & H. R. Co., 59 
Conn. 364, 371, 21 Atl. 1073. If the conduct is not wilful or wanton, 
it is negligent only. Thus treated, it forms one factor of negligence 
in the situation. The plaintiff's want of care is another factor, and 
it certainly has something substantial to do in bringing about the 
result reached. Upon what theory or foundation in reason it can be 
said that, under the circumstances assumed, it is not an efficient cause 
of that result co-operating concurrently with the other cause to be 
found in the other party's negligence, we are unabie to discover. The 
causal connection is plain to be seen, and the act of causation is that 
of a positive act of volition. The two actors upon the scene owe pre- 
cisely the same duty to be reasonably careful. Dexter v, McCready, 
64 Conn. 171, 174, 5 Atl. 855. Neither occupies in that regard a 
superior position, and the one who suffers can claim no precedence 
over his fellow actor or at the hands of the law. To say that no matter 
if one be negligent in going forward into danger, or in creating new 
conditions or complicating them, the law will protect him and cast 
upon the other party the responsibility for the result, is to ignore the 
fundamental principle of contributory negligence and bring the law 
upon that subject into hopeless confusion, and merit for it the con- 
demnation which Thompson has so forcibly expressed. 1 Thompson 
on Negligence, §§ 230, 233. The well-considered cases which have 



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SECT. Vm.] NEHRING V. THE CONNECTICUT CO. 313 

directly dealt with this subject agree with us, we think, in our view 
that active continuing negligence of the kind assumed is to be re- 
garded as contributory in the legal sense. Butler v. Rockland, T. & C. 
Street Ry. Co., 99 Me. 149, 160, 58 Atl. 775; Murphy v. Deane, 101 
Mass. 455, 465; Dyerson v. Union Pacific R. Co., 74 Kan. 528, 87 
Pac. 680; Little v. Superior Rapid Transit Ry. Co., 88 Wis. 402, 409, 
60 N. W. 705; Green v. Los Angeles Terminal Ry. Co., 143 Cal. 31, 
47, 76 Pac. 719; Olson v. Northern Pacific Ry. Co., 84 Minn. 258, 
87 N. W. 843. 

We have thus far dealt with cases in which actual knowledge on the 
part of the defendant of the plaintiflF's peril enters into the assmnption 
of facts. Suppose, however, that such knowledge is not established, 
but facts are shown from which it is claimed that the defendant ought 
in the exercise of due care to have known of it. What shall be said 
of such a situation ? 

In so far as imputed or constructive knowledge may be embraced 
in the assumption, the simple answer is to be foimd in the legal prin- 
ciple that full and adequate means of knowledge, present to a person 
when he acts, are, under ordinary circumstances, treated as the 
equivalent of knowledge. Post v. Clark, 35 Conn. 339, 342. 

But our assumption reaches outside of the domain of knowledge, 
either actual or constructive. It suggests, in the use of the phrase 
" ought in the exercise of due care to have known," frequently met 
with in the books, the existence of a duty to exercise due care to ac- 
quire knowledge, and the query is, whether the law recognizes the 
existence of such a duty to the extent of making it a foundation for 
responsibility for conduct akin to that which flows from conduct with 
actual or constructive knowledge. 

We have frequently held that the character of one's conduct in 
respect to care is to be determined in view of what he should have 
known as well as of what he did in fact know. Snow v, Coe Brass 
Mfg. Co., 80 Conn. 63, 66 Atl. 881. In these cases the question has 
been as to one's duty for his own self-protection. That duty, accord- 
ing to established principles, involves the making of reasonable use of 
one's senses under the penalty of forfeiture of all claim for redress 
in the event that harm results. Popke v. New York, N. H. & H. R. 
Co., 81 Conn. 724, 71 Atl. 1098. 

But how about a duty of acquiring knowledge, owed to others for 
their safety, which, not being performed, will furnish a basis of lia- 
bility ? In Elliott V, New York, N. H. & H. R. Co., 83 Conn. 320, 
76 Atl. 298, we recognized that such a duty might exist. That case 
involved the conduct of a locomotive engineer operating his engine 
at a grade-crossing, and we approved a charge which gave to the 
knowledge which the engineer, under the conditions, ought, in the 
use of due care, to have had, the same effect as actual knowledge. The 
duty imposed upon him was one to be watchful in order that needless 



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314 NEHRING V. THE CONNECTICUT CO. [CHAP. II. 

harm might not come to persons who might be using the crossing, 
from the dangerous instrument of his calling. The duty was one to- 
ward others, which the circumstances and conditions must be re- 
garded as fairly creating. For a like reason a similar duty rests upon 
other persons and under other conditions, in greater or lesser measure. 
Whether it exists, and the extent of it, depends upon the circumstances 
of each situation. A circumstance of chief significance, perhaps, is 
one which concerns the character of that about which the person is 
engaged in respect to its being calculated, under the conditions, to 
work injury to others. And so it is that a locomotive engineer, a 
motorman of a trolley-car running in a highway, or a chauffeur driv- 
ing an automobile, is under a duty to be watchful for the protection 
of others which another man under other conditions would not owe 
to his fellows. Unreasonableness in one's conduct, as a foundation 
for responsibility to others, cannot justly be established upon the 
basis of knowledge not possessed. It can with propriety be predicated 
upon negligence in not having acquired more knowledge. Negligence 
in this respect, as in all others, implies the existence of a duty to make 
use of means of knowledge. This duty must be found in the circimi- 
stances, and caution must be exercised in order that it, with its con- 
sequences, be not raised where the circumstances do not fairly impose 
it, or be extended beyond the limits which the circumstances fairly 
justify.^ 

George W. Wheeler, J. (dissenting). Just prior to the accident 
the defendant's car was being negligently operated. Assuming the 
decedent walked either diagonally toward and upon the track, or close 
to it, without using his senses to learn of the approaching car, and 
that there was no excuse for his failure, he was negligent. If the 
accident occurred while decedent and defendant were negligent and 
decedent's negligence was a proximate cause of the accident, and there 
was nothing more to the case, there could be no recovery. But if the 
defendant's motorman saw, or could by the exercise of reasonable care 
have seen, the decedent either approaching the track and about to 
place himself in danger, or walking so near the track as to be in danger, 
apparently heedless and unconscious of his peril, he owed to the de- 
ceased the duty of warning him and of observing such precautions as 
might avoid running into him. This was the case before the jury. We 
hold knowledge and the means of knowledge of one having a duty to 
know equivalent. Elliott v. New York, N. H. & H. R. Co., 83 Conn. 
320, 76 Atl. 298. This duty originated after the negligence of the 
motorman and of the deceased, and after the latter's peril and his 
unconsciousness of it might have been discovered by the motorman. 
If its performance would have avoided the injury to the deceased, its 
breach was the proximate cause of the accident, and his negligence in 
placing himself in the place of peril a condition, or the remote cause, 

* The statement erf facts, arguments and parts of the opinions are omitted. 



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SECT. VIII.] NEHRING V. THE CONNECTICUT CO. 315 

of it. Of course, if he had not gone upon the track he would not have 
been injured; if he was n^igent in going upon the track without 
using his senses, that was not the proximate cause of the accident, but 
the failure of the defendant to avoid the accident after it had the op- 
portunity of avoidance and after it knew of the decedent's peril and 
his imconsciousness of it. 

In each case of discovered peril caused by one's negligence the ques- 
tion is, did the defendant have the opportunity after such discovery, 
and was it his duty, to have avoided the accident ? Whether the 
conduct of the motorman was gross negligence, or ordinary negligence, 
the breach of duty was the same in kind, though diflfering in degree. 
K one walks upon a railway track drunk, or in a reverie, or otherwise 
careless; or if one stands or lies on or so near the railway track as to 
be in danger and imconscious of it; or if one is in a position of peril 
through his own negligence from which he is unable to extricate him- 
self, the person knowing or having the means and the duty to know 
of his presence owes him the duty of avoiding injuring him. One 
who is negligently in a position of danger and imconscious of it is in 
no different situation than if he were incapable of extricating himself 
from his peril. 

The few authorities which hold the antecedent negligence of the 
deceased in getting into peril is concurrent with the defendant's negli- 
gence so as to bar a recovery, make meaningless the rule of duty com- 
pelling the defendant to use reasonable care to avoid the accident after 
discovery of the peril. A legal duty without a corresponding obliga- 
tion is an anomaly. When we relieve the motorman of liability for 
failure to avoid an accident, he may operate his car at a negligent 
speed, without having it imder control, without keeping an outlook, 
without giving warning of approach, and neither having nor using 
the ordinary instrumentalities of equipment for avoiding injury to 
travellers, and so long as his conduct is not gross negligence it carries 
with it no liability. 

The opinion of the court classifies in five groups the several kinds 
of cases which have been thought to be within the " last clear chance " 
doctrine. In group one, the defendant, instead of doing his duty, 
does something which is a new act of negligence. In group two, the 
peril is one from which the plaintiff cannot, or cannot reasonably, 
extricate himself. Each group supports a recovery. In group three, 
means of escape were open to the plaintiff down to the accident, but 
he remained imconscious of his peril. The opinion holds that if the 
plaintiff remains passive after exposing himself to peril and does 
nothing to materially change that condition, there may be a recovery. 
But in group four, assuming the same facts as in group three, the 
cowrt holds that if the plaintiff after exposing himself to peril, instead 
of permitting the fixed condition to remain unchanged continues as 
an active agent in producing the conditions under which the injury 



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316 NEHRING V. THE CONNECTICUT CO. [CHAP. H. 

was received down to its occurrence, or until it was too late for the 
defendant to avoid the accident, there can be no recovery. In group 

ti L wiA^^^^^' ^^^ defendant knows, or ought to know, that the injured one is 

J U iC/^ careless and is about to expose himself to danger of which he is imcon- 
•^L>^ scious, and after such knowledge has the opportunity to avoid injury 

\\)^Opi^ to him, and in such case the court holds there can be no recovery. 

Jl\fr^ We have attempted to show that the breach of duty of the defend- 

ant in each of these several groups is the same, and was a new act of 
negligence of the defendant, viz. : the failing of the defendant to avoid 
injuring the plaintiff after he knew of his peril when he was either un- 
conscious of it or incapable of extricating himself from it, and that this 
breach was the proximate cause of the accident while the plaintiff's 
prior negligence was the remote cause. 

The distinction between active and passive negligence made in 
groups three and four, is new to oiu* law, as well as to the law of negli- 
gence generally prevailing in this coimtry and in England. On anal- 
ysis it does not seem logical. A is crossing a trolley track when hailed 
by a friend; he stops upon the track to talk and negligently fails to 
use his senses to discover an approaching car. The motorman could 
have seen A in his place of penl, unconscious of his danger, and in 
time, with the exercise of reasonable care to have avoided injuring 
him; instead he drives on his ear and kills A. The opinion would hold 
A negligent in being upon the track without using his sensos to keep 
out of the way of the oncoming car, but that as he remained passive 
and did nothing to change his situation of peril after the motorman 
had the opportimity to have avoided the accident, he may recover. 
But if A, instead of stopping on the track had gone on his way across 
or upon the track and been struck, his negligence would have been 
active and continued to the accident and would have been concurrent 
with that of the motorman. It must be conceded that the breach of 
the motorman's duty would have been the same in each case : a failure 
to use reasonable care to avoid the accident. We see no reason why 
it should be available in the one case and not in the other. In neither 
case has the plaintiff's negligence changed. It never became passive 
or nonexistent. It remained to the time of the accident. It ceased, 
in a legal sense, to be a proximate cause of the accident. A was re- 
lieved of its consequences because the negligence of the motorman in 
failing to avoid the accident intervened and became its proximate 
cause. If this distinction holds, and A be upon a trolley track intoxi- 
cated and asleep, his negligence is passive; if awake and walking his 
negligence is active.^ 

1 See. also Bruggeman t;. Illinois R. Co., 147 la. 187, 204-214; Anderson v, 
Minneapolis R. Co., 103 Minn. 224: Cavanaugh v. Boston R. Co., 76 N. H. 68; 
Scholl V. Belcher, 63 Or. 310, 323; Underwood ». Old Colony R. Co., 33 R. 1. 319. 
As to the requirement of a " new act of negligence " see Rider v, Syracuse R. Co., 
171 N. Y. 139. 



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SECT. VIII.] GAHAGAN V. BOSTON & MAINE RAILROAD 317 

GAHAGAN v, BOSTON it MAINE RAILROAD 

Supreme Court, New Hampshire, December, 1900. 

Reported in 70 New Hampshire Reports^ 441. 

Plaintiff was struck by a train whDe attempting to use a crossing 
provided by the Railroad Company for persons having business with 
a manufacturing company. From a point twenty-two feet from the 
nearest rails there was an unobstructed view of the track in the direc- 
tion from which the train came. The accident happened near noon on 
a bright and clear day. Generally the engine bell was rung, while the 
whistle was sometimes soimded, for this crossing. Plaintiff knew it 
was usual to ring the bell. In this instance a danger whistle was 
soimded at, or immediately before, the time when plaintiff was struck; 
but there was evidence tending to prove that no other warning of the 
approach of the train was given. Plaintiff testified that he did not 
look or listen for an approaching train; and that he did not l