BOOKST'^ THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ^itwjri*' rtHORjt *"pk- fc> A TREATISE LAW OF NEGLiaENCE. BY FRANCIS WHARTON, LL. D., AtJTHOE OF TREATISES ON THE "CONFLICT OF LAWS," " CEIMINAL LAW," AND " MEDICAL JORISPKUDENCE." PHILADELPHIA: KAY AND BEOTHER, 17 AND 19 SOUTH SIXTH STREET, HaiD 3iJoDft)Scncr)S, iDuftltifljrrjf, anlr ImpaitrriS. 1874. • *.* Entered according to Act of Congress, in the year 1874, by Fkancis Whaeton, in the Office of the Librarian of Congress, at "Washington. RIVEKSIDE, CAMBRIDGE: PRINTED BY H. O. HOUGHTON AND COMPANY. e ^ TO MY BROTHER, HENRY WHARTON, THIS VOLUME IS AFFECTIONATELY INSCRIBED, IN COMMEMORATION OF HIM FROM WHOM IN EARLY LIFE, WE BOTH RE- CEIVED NOT ONLY CAREFUL PARENTAL TRAINING, BUT AN ABIDING TASTE FOR THE SCIENCE OP JURISPRUDENCE. Cambridge, October, 1874. 740114 PEEFACE. Much of the material contained in the following pages was collected by me when engaged in examining the Law of Negligence in collateral relations. As to publication I at first hesitated, being deterred by the fact that the sub- ject has already been discussed by several authors of de- servedly high reputation.^ But a closer examination has led me to conclude that so far as concerns the particular aspect of the law I purpose to present, I have not been preceded by any writer in the English language.^ To ex- plain this statement the following observations may not be out of place : — Our Anglo-American Law of Negligence, it will be re- membered, as well as that of Bailments, with which it is so closely associated, is drawn confessedly from the Roman Law. It so happened, however, that both Lord Holt and Sir W. Jones, who did so much to form opinion in these 1 Negligence is one of the chief theory of culpa levissima, the notes by topics in Sir W. Jones's Treatise on Mr. Green, in the last (1874) edition Bailments ; and Judge Story has given of Story on Agency ; and an article the subject the same prominence in his by the same able writer in the July works on Bailments and Agency. We number of the American Law Review; have also indei)endent treatises on an article which was published after Negligence, by Mr. Saunders (Lon- my own observations on this point don, 1871), by JNIr. Campbell (London, were printed, but which, readj^pg the 1871), and by Messrs. Shearman & same result, though from a line of au- Rediield, of New York, a third edi- thorities distinct from those to which tion of whose valuable work was pub- I have appealed, I should be glad to lished a few weeks since. have placed by the side of my own 2 I must except, in respect to the conclusions on this topic. V PREFACE. departments, relied for authority on the schohastic jurists of the Middle Ages rather than on the classical jurists of business Rome ; and it was but natural that Judge Story and Chancellor Kent, the treatise of Gains not having been as yet discovered, and the chief accessible summaries of the Corpus Juris being those of the scho- lastic jurists, should have followed Lord Holt and Sir W. Jones.^ Between the scholastic and the classical jurists, however, there is a conflict, as will be hereafter demon- strated, which runs through the whole line of the subject before us. This conflict may be at this point thus briefly epitomized : — SCHOLASTIC JURISTS. CLASSICAL JURISTS. Culpa is of three grades : Culpa has but two grades : culpa lata, culpa levis, culpa culpa lata and culpa levis, the levissima ; and in agencies negligence ofa specialist and involving special trust, the that of a non-specialist ; or, agent is liable for culpa levis- in other words, the negli- sima. gence of one professing to be, and of one not professing to be, an expert. As to culp)a levis, it exists where a spe- cialist neglects the diligence usual with good specialists of his department ; and if such diligence is applied, there is no negligence the law takes hold of Culpa levissima the • law does not punish, for culpa levissima is incident to all business, and to punish men 1 The explanation of this is given in detail, infra, § 59 et seq. vi PREFACE. Injure non remota causa sed proxima spectakir. Mandatum (agency) is a gratuitous undertaking, and the mandatary (agent) is only bound to ordinary dil- igence. If the plaintiff's negli- gence, no matter how triv- ial, contributes to the injury, 1 Infra, § 26 et seq. 2 Infra, § 87 ef seq., 134, and also Appendix. for culpa levissima in their business would be to prevent them from doino; business at all.i To causation responsible moral agency is essential; and causal connection is ju- ridically broken, in cases of negligence, when between the first negligence and the damage intervenes the neg- ligence of a second responsi- ble person directly produc- ing the damage.^ Mandatum (agency) is not gratuitous; for in all cases a special action lies against the mandant in behalf of the mandatary for the recovery of his salarium or honorarium. And in any view, the manda- tary (agent) who undertakes to act as a business man is required to exhibit the skill and diligence good business men in his department are accustomed to exhibit.^ Injiina non excusat injuriam. No matter how negligent the plaintiff may have been, 8 See infra, § 485. vii PREFACE. he is barred, on the theory this does not excuse the de- of culpa levissima, from re- fendant in negligently injur- covery. ing him, if this injury could have been avoided by the exercise of the diligence good business men are ac- customed to exercise in such matters. Nor can the plain- tiff's culpa levissima bar his recovery. If it does, there is no .plaintiff who can re- cover, for there is no human action to which culpa levis- sima is not imputable.^ The scholastic theories on the above topics are the pro- ducts of a recluse and visionary jurisprudence scheming for an ideal humanity: the classical theories, as contained in the Corpus Juris, are the products of a practical and regulative jurisprudence, based, by the tentative pro- cesses of centuries, on humanity as it really is, and so framed as to form a suitable code for a nation which con- trolled, in periods of high civilization, the business of the globe. Hence, when the attempt was made, even under the high auspices of Lord Holt and Sir W. Jones, to enforce the scholastic jurisjDrudence in the business transactions of England and of the United States, it was but natural that judges should stagger at refinements so unsuitable for practical use ; ^ and hence we can understand, also, how Judge Story, enthusiastic as was his admiration for the "civil law" (which includes, in his acceptation of the term, the scholastic jurisprudence), should have shrunk 1 See infra, § 300-3-45. 2 gee for illustrations infra, § 44. viii PREFACE. from judicially imposing the subtleties which he accepted as theoretically sound. The consequence was that our ad- judications have been on one plane of jurisprudence, and our principles on another plane ; the necessities of busi- ness life drove us to approach the law of business Rome, while the authority of our jurists induced us to still cling to the idealistic fictions of mediaevalism. In the following pages I have sought to avoid this incongruity, by substi- tuting as a basis the Roman for the scholastic jurispru- dence ; striving in this way not only to present the law in logical consistency, but to arrange it in a shape which can be readily and quickly mastered by the practitioner. Some of our older decisions, based exclusively on the scholastic formulas, I have passed over without notice ; but I think I can fairly claim to have noticed and dis- cussed, in its proper place, every modern pertinent Anglo- American adjudication. And these adjudications I have classified so as to enable them to take their place in fur- ther exposition of that consummate system which the jurists of Rome framed as at once the outgrowth and the law of the business of the Roman Empire. It shows how much human nature, when subject to the highest strain, continues to exhibit the same characteristics, that we, in the nineteenth century, in the United States, should be instinctively and unconsciously constructing for our- selves, in defiance of the scholastic traditions we have been trained to reverence, a jurisprudence which rejects these traditions, and assimilates itself to the jurisprudence of Rome at her business prime. F. W. Cambridge, October, 1874. ix GENERAL ANALYSIS. BOOK I. GENERAL PRINCIPLES. Chapter L General definition of negligence, § L IL Different kinds of negligence, § 26. IIL Causal connection, § 73. IV. Liability of master for servant, § 156. V. Master's liability to servant, § 201. VL Municipal corporations, § 250. VIL Private corporations, § 271. VIIL Public officers, § 285. IX. Contributory negligence, § 300. X. Ignorance of law or fact, § 410. XL Provinces of court and jury, § 420. BOOK II. NEGLIGENCE IN DISCHARGE OF DUTIES BASED ON CON- TRACT. Chaptee I. General rules, § 435. II. Depositum, § 450. IIL Mandatum, § 482. IV. Trustees, assignees, attorneys in fact, guardians, ex- ecutors, AND OTHER agents, § 515. V. Carriers op goods, § 545. VI. Passenger carriers, § 645. VII. CusTODiA, § 665. VIIL COMMODATUM, § 667. xi BOOK III.] GENERAL ANALYSIS. IX. PiGNUS OR PAWN, § 670. X. Innkeepers and livery stable-keepers, § 675. XL Expressmen, § 697. XII. Forwarding merchants, § 703. XIII. Ferrymen, § 706. XIV. LocATio (Hiring), § 710. XV. Physicians, § 730. XVI. SociETAS (partnership), § 740. XVII. Lawyers, § 744. XVIII. Telegraph companies, § 756. XIX. Vendors, § 774. XX. Drovers, § 778. BOOK III. NEGLIGENCE IN DISCHARGE OF DUTIES NOT BASED ON CONTRACT Chapter I. General principles and illustrations, § 780. II. Collision of railroad trains with travellers, § 798. III. Injuries caused to travellers and visitors by owners OF land or houses, § 815. IV. Dangerous agencies, § 851. V. Fire, § 865. VI. Defective fencing, and collision of railroad train WITH CATTLE, § 883. VII. Noxious animals, § 904. VIII. Interference with support to land or houses, § 929. IX. Interference with watercourses, § 934. X. Collisions on water, § 943. XL Gas companies, § 953. XII. Duty of public authorities in repairing roads, § 956. Appendix on the causal relation. xii TABLE OF CASES. [the fiodres refer to sections.] > Fay I'. Prentice 843 Feiir ('. Sch. Nav. Co. 786 Feital v. R. R. 381 a, 405, 639, 661 Felch W.Allen 215 Felder v. R. R. 420 Feltham v. England 223, 224, 227, 230, 240 Felton V. Deall 181 Feuner u. R. R. 571, 575 Fenton v. City of D. Steam. P. Co. 175 Fenwick v. Schmalz 559 Ferguson v. Earl of Kinnoul 3, 435 Fernow v. R. R. Fero V. R. R. Ferris v. Union Ferry Co. Ferry v. Bass Feut V. R. R. Field V. R. R. Fifield V. R. R. Filer V. R. R. Fillebrown v. R. R. Filliter v. Phippard Findlater v. Duncan Finley v. Langston Finn v. West. R. R. Finucane v. Small Fish V. Dodge V. Kelley Fisher v. Boston V. Clisbee V. Loan Co. V. Thirkell Fisk V. Newton V. Wait Fitz V. Boston Fitzpatrick v. R. R. Fitzsimmons v. Liglis Fleming v. Beck V. Orr Fletcher v. Barnet V. R. R. V, Rylands Fleytas v. R. R. Flike V. Bost. & A. R. R. 398 872 707 289 153 420, 870, 871, 875 214 377 587, 595 12, 20, 786, 865, 867, 867c 288 Flint V. Gas Co. V. R. R. Flower v. Adam V. Penn. R. R. Co. 867 700 422, 713 823 754 126, 260 70G, 708 894 815, 816, 817 571 348 988, 989 229 136 96 91t 99,98 7 636 851, 852, 858 300, 420 222, 229, 441 954 646 300, 404 163, 175, 201, 216 286 753 311, 321 300, 303,869, 873 105, 106, 987 929 Floyd V. Barker V. Nangle Flynn v. Hatton V. R. R. Fogg V. Nahant Foley V. Wyeth Folsom ?'. Undcrhill 403 Foot V. Storrs 422 V. Wiswell 420 Ford P. R. R. 229, 627, 640 Fordham v. R. R. 300 Foreman v. Mayor of Canterbury 164, 190 Forster r. Juniata Bridge Co. 129 xxi TABLE OF CASES. Forsyth v. Hooper 181 V. R. R. 373 Forsythc v. Walker 703 Fort Plain Bridj^e v. Smith 094 Fortune v. Harris, 6G8 Forward v. Pittard 114, 545, 553-4, 703 Foshay v. Glen Haven 105, 107, 983 Foster v. Essex Bank 451, 457, 463, 466, 469,472, 500 V. Goddard 820 ?i V. Holly 348 V. Preston 523 Fotts V. Button 751 Fowler v. Dowlen 690 V. Sergeant 730 Fox V. Glastenbury 403 V. Sackett 403 Fov V. R. R. 875, 377, 578, 822 Francis v. Cockrell 693, 728, 775 V. R. R. 571 Frankford v. R. R. Co. 869, 872 Frankland v. Cole 751 Franklin v. Lord 288, 292 Frasier v. Brown 939 Frazier v. R. R. 214, 224, 238, 241 Freedham v. R. R. 303 Freeholders v. Strader 266 Freemantle v. R. R. 128, 420, 872 French v. R. R, 588, 764 Friuk V. Coe 627, 820 m V. Potter 93, 94, 304, 626, 630 Fritz V. R. R. 398 Frost f. R. R. 344,3 70,821 V. Waltham 400, 996 Fuller V. Coats 689, 690 V. R. R. 627 Fulton V. Ins. Co. 285 Fultz V. Wycoff 916 G. Gaff V. Bloomer 571 Gago- V. Vetter 420, 865, 871 Gahagan v. R. R. 238, 300, 393, 420, 424, 427, 819 Gale V. Lisbon 336, 348 Galena v. R. R. 368 V. Jacobs 334 Galena, &c. R. R. v. Dill 385, 386, 804 V. Fay 627 V. Loomis 385, 804 V. Yarwood 238, 304, 366, 627, 660 Galesburg v. Higley 992 xxii Gallagher v. Humphrey 79, 845 V. Piper 223, 224 Galpin V. R. R. 870, 887 Gambcrt v. Hart 749, 751 Gandy v. R. R. 870 Gardner v. Grace 310 Garmon v. Bangor 820 6 Garrett v. M. R. R. 300 Garrettson v. Duenckel 157, 172 Garside v. Proprietors 477, 573, 576 V. R. R. 581 Gass V. R. R. 578 579, 580 Gaston v. R. R. 597, 701 Gatliffe v. Bourne 554 Gautret v. Egerton 349,1 51,824 a Gaved v. Martyn 937 Gavett V. R. R. 420 Gay V. Winter 300,397 Gayford v. Isicholls 157 Gaynor v. R. R. 373, 420, 424 Geddes v. R. R. 648 Gee V. R. R. 361 363,633 General Mut. Ins. Co. v. Sherwood 73 General Steam Co. v. Brit. & Col. Co. _ 279 George v, Skivington 440, 774 Georgia, &c. R. R. v. Davis 887 Gerald v. Boston 400, 420 Gerhard v. Bates 78, 437 Gerke v. Cal. Va. Co. 420 Gibbon v. Paynton 555 Giblin i'. McMullen 457, 461, 466, 468, 469, 471, 476 Gibson V. Culver 571 V. Mayor 279 V. Pre'ston 959, 960 V. R. R. 208, 870 Gidley v. Palmerston 287 Gilbart v. Dale 422 Gilbert v. Roxbury 980 Gilbertson v. Richardson 851 Gillv. Libby 678,689 V. Middleton 355, 438, 503, 792, 793 ?;. R. R. 565,618,619 Gillenwater v. R. R. 229, 355, 641 Gillespie v. City 382, 420, 424, 427 Gillis V. Penn. R. Co. SIX Gilman v. R. R. 102, 209, 223, 224, 241 Gilraore v. Carman 554 Gilshannon v. R. R. 224, 843 Gisbourne v. Hurst 546 Gladman r. Johnson 922 Gladwell v. Steggall 437, 439, 548 Glassey v. R. R. 310, 313, 420, 439, 548 TABLE OF CASES. Gleason v. Clark 749 Glidden v. McKinstry Godefroy v. Dalton V. Gay Godley v. Hagojerty Goff V. Great Northern R. 751 181, C. 421 751 752 834 161 Golden V. Manning 700 Goldey V. R. R. Goldthorpe v. Hardmans Gonzales v. R. R. 589 300 384 Goodale v. Tuttle 939 V. Worcester Ag. Soc. 49, 420 Goodfellow V. R. R. 245 Goodman v. Gay 915 923 V. Taylor Goodnough v. Oshkosh 921 962 Goodrich v. Chicago 260 264 Goodwin V. R. R. 571 Goold V. Chapin 575 Gordon v. Hutchinson 546 V. Little 546 V. R. R. 662 Gore V. Brazier 751 Gorliam v. Fargo 564 Gorman v. R. R. 883 Gorton v. R. R. 384 , 385 Gott V. Gandy Gould V. Oliver 817 77 Governor v. Justices 266 Grace v. Adams 764 Graham v. Davis 422, 589, 593 Granite State, The 945 Grant v. City of Erie 84, 261 Graves u. St. Co. 571 Gray v. Brassey 230 V. Coombs 347 r. Harris 49,847 V. Pullen 168, 185, 443 V. R. R. 804 V. Scott 314, 388, 391 Grayson v. Wilkinson 749 Great N. R. v. Harrison 300, 548, 641, 860 G. N. R. Co. V. Moville 597 Great N. R. R. v. Shepherd 606 V. Swaffield 478, 569, 574 Great West. R. C. of Canada V. Braid 128, 548, 559, 800 Great W. R. R. v. Fawsett 640 V. Geddis 896 V. Hawkins 589 V. Haworth 867 fc V. Helm 899 V. Morthland 887 a, 899 Great West. Railway Co, v. Rimell 713 Green v. Danly 980, 989, 990 V. Elmslie 73 V. HoUingsworth 420 u. London M. Co. 171,604 V. R. R. 604 Greenland v. Chaplin 98, 114 Greenleaf V. Francis 939 V. R. R. 89, 93, 94, 212, 213, 214, 219, 221, 420, 428 Gregg V. Wyman 331 Gregory v. Adams 991 V. R. R. 597 Grier v. Sampson 820 h Griffin I'. Mayor 260, 800, 962-4 Griffiths V. Gidlow 224, 300 Grill V. General Tron Co. 44, 73, 792 Grimes v. Keene 190, 192 Grippen v. R. R. 300, 384 Grizzle v. Frost 88, 216, 229, 859 Grote V. Chester & Holyhead R. C. 25, 157, 272, 631, 634, 800 Guille V. Swan 95 H. Haack v. Fearing 882 Hackett v. JMiddlesex Manufacturing Co. 245, 420, 459 Hackey v. R. R. 300 Hackford v. R. R. 300, 420, 427 Haddan v. Lott 136 Hadley v. Cross 627 V. Taylor 789, 816 Hafford v. New Bedford 261 Hagedorn v. AVhitmore 73 Hahn v. Corbett 73 Haight V. Keokuk 816 a V. R. R. 382 Haldeman v. Bruckhardt 939 Hale V. Lawrence 126 V. Rawaillie 470 Hall V. Cheney 437, 589, 602, 613 V. Conn. River St. Co. 546 V. Fearnley 114 V. Johnson 224 V. Manchester 979 V. Pickard 820 a V. Renfro 665, 619 V. Smith 288 V. Stcamb. Co. 627 V. Unity 968 V. Warner 717 Halloran t?. R. R. 887 a xxiii TABLE OF CASES. ITaiii1»iir. Van Rensselaer 126 Meier v. R. R. 626, 627, 629, 630, 636, 660 Mellen v. Smitli 946 Mellors v. Shaw 205, 208 Melville v. Doidge 25 Memp. R. R. v. Bibb 896 V. Orr 893 V. Reeves 557, 561 V. Whitfield 375, 378, 647, 821 Menotone u. Athawes 713 Mercer v. King 751 Merc. Int.' Co. v. Calebs 588 Meredith w. Reed 918 Merrick D. Brainerd 176 Merrifield v. Worcester 934 ]\Ierrill v. Hampden 989 Merritt v. Cleghorn 692 V. Earle 331, 553 Mersey Docks v. Gibbs 176, 256, 272, 274, 275, 279, 288, 443, 786 Mershon v. Habensack 554 Messel v. R. R. 364 Metallic Comp. Cast. Co. v. R. R. 98 a, 126, 793, 929 Metcalf V. Hess 692 Meyer v. Ex. Co. 588, 899 Michael v. Alestree 788 Michaels v. R. R. 558, 562, 634 Mchigan Cent. R. R. v. Anderson 872 V. Man. Co. 575 V. Ward 571 TABLE OF CASES. Michigan South. R. R. v. Heaton 586, 589 Mich. S. & N. R. R. v. McDon- ougli 616, 617 Middle Bridpre v. Brooks 264 Midland R. R. v. Bromley 422 Milford V. Holbrook 180, 279 Milhan v. Sharp 816 Miller v. Martin 865 V. Proctor 414, 518, 519, 520, 523 V. St. Nav. Co, 575 Milligan v. Wedge 182, 279, 714, 818 Mills V. Brooklyn 260, 959 V. R. R. 575 Milner v. R. R. 582 Milton V. Sahsbury 713 Milwaukee v. Davis 973, 978, 988 Milwaukee, &c. R. R. v. Hunter 386 Minor u.R.R. 610 Miss. R. R. V. Kennedy 607 Mitchell V. Crassweller 160, 168, 172 V. Harmony 535 V. Knott 443 V. Rockland 191, 195, 258 V. Woods 691 Mobile, &c. R. R. v. Hopkins 503, 602, 641 a u.Mc Arthur 647 V. Prewitt 574 Moffatt V. Bateman 625 Moneypenny I'. Hartland 721, 723 Monong. Bridge Co. v. Kirk 846 Monong. Co. v. Coon 938 Montford v. Hughes 535 Montgomery v. Gilmar 962 Montrion v. Jeffreys 414, 746 Moody V. ]\Iayor of N. Y. 823 V. Osgood 820 b Moore v. Abbott 85, 105, 987 V. Cass 715 V. Evans 588 V. INIinneapolis 963 V. ]\Iorgue 530 V. R. R. 300, 420 V. Westervelt 209 Morange v. Mix 297, 420, 527 Morgan u. City 191, 824 « V. Crocker 723 V. Rarey 676, 686 i;. R. R. 207, 224, 229, 230, 231 V. Sim 421 Morris, &c. R. R. v. Ayrcs 5 71 V. Haslan 300 V. Hcnton 384 Morris & E. R. R. v. State 870 Morris v. Summerl 530 Morris, R. v. 846 Morrison v. Cornelius 300 V. Davis 96, 106, 150, 558, 634 V. Lawrence 195 V. Nav. Co. 77 'v. R. R. 899 Morrissey v. Ferry Co. 346, 348, 420 Morse v. Richmond 105, 983 V. R. R. 382 V. Slue 678 Morton v. Inhab. 973, 978 V. Moore 835 Mose V. Gas Co. 952, 954 Moses V. R. R. 571, 591, 597 Mosey v. Troy 956, 980 Moshier v. R. R. 898 Moss V. Johnson 214 V. R. R. 238 Mostyn v. Fabrigas 286 Mote'u. R. R. 609 Mott V. R. R. 98 a, 793 Moulton V. Sanford 78, 85, 105, 999 Mower v. Leicester 251, 260, 266, 956 Mowers v. Fethers 685 Mullett V. Mason 916 Mulligan v. Curtis 311 Mumford v. Murray 524 Munger v. R. R. 883-5-6 Munn V. Reed 311, 926 INIunroe v. Leach 626 Munster v. R. R. 599 Murch V. R. R. Co. 821 Murdock v. Warwick 85, 103, 105, 985, 987 Murpheyu. Caralli 172, 181 V. Smith 224, 229 Murphy v. Deane 243, 300, 303, 424 V. Gloucester 976 Murray y. Currie 181,224,234 V. McLean 831 V. R. R. 883, 890 Muschamp v. R. R. 578 Muzzy V. Shattuck 290 Myers v. Percy 300 Mylne v. Smith 136 jNIytton V. Cook 465 V. R. R. 579, 605 N. Napier v. Bulwinklc Nashua V. R. R. Nason v. Boston xxxi 930 575 980 TABLE OF CASES. Nebraska City v. Campbell 251, 2G5, 970 Needham v. R. R. 300, 397, 893 Nelson v. Mackintosh 477, 506 V. Woodruir 567-8 New Alb. R. R. r. Campbell 571,573 Newball v. Ireson 935 New Jersey Ex. Co. v. Nichols 300, 342 New Jersey R. R. v. Kennard 361, 627, 629 V. Palmer 343 V. West 798 New Jersey St. N. Co. v. Mer- chants' Bank 586, 588, 589, 593, 597, 617, 701 Newman v. Smoker 589 New Orleans R. R. v. Field 883, 893 V. Harrison 201, 244 V. Hurst 662 V. Statham 372. 594, 649 Newton v. Ellis 186, 279 V. Pope 422 New World v. King 355 New York v. Furze 262, 265, 962 V. Sheffield 962 New York Cent. R. R. I'.Lockwood 49, 355, 562, 589, 593, 641, 641a New York Cent. R. R. v. State 341 New York & E. R. R. v. Sineath 885 V. Skinner 883 New York & W. Tel. Co. v. Dry- burg 756, 758, 764 Nicholl V. Allen 275 Nichols V. House 531 V. R. R. 371, 650, 652 Nicholson v. Morrissey 288, 296 V. R. R. 349, 384, 556, 658, 786, 808 a Nolton V. R. R. 355, 641 Norcross v. Norcross 678 Norris v. Litchfield 105, 331, 348, 420 Norristown v. Moyer 962, 969, 970, 982 North r. Smith 25, 326, 820 c North Penn. R. R. v. Heihnan 382, 384, 420 V. Mahoney 310 V, Rehman 883, 886 Northrup v. Fargo 588 Norton v. Cooper 753 t'. Scofield 847 a V. Sewell 91, 854 xxxii Norton V. Valentine 937 Norway Plains v. R. R. 571, 573 Notara v. Henderson 478, 569 Nourse v. Richmond 107 Nowell V. Wright 285 Noxen v. Hill 285 Noyes v. R. R. 578 V. Smith 208, 241 Nutall V. Bracewell 936 Nutting V. R. R. 681 O. Oakes v. Spaulding 911 Oakley v. Steam Packet Co. 114 O'Brien, State v. 802 O'Byrne v. Burn 216 O'Flaherty v. R. R. 310, 420 Ofjburn v. Connor 934 Ogle V. R. R. 300 O'Hara v. Brophy 754 Ohio & Miss. R. R. v. Cole 107, 898 V. Dunbar 566 V. Eaves 385, 804 V. Gullett 300 V. Muhling 355. 641 a V. Schribe361,370 V. Shanefelt 873, 878 Ohrby v. Ryde 443 Oil Creek, &c. Co. v. Keighron 853 O'Keefe v. R. R. 334 Oldfield V. R. R. 313, 423 O'Linda v. Lothrop 837 Olivant i'. Bazler 775 Oliver v. N. P. Trans. Co. 657 V. Pratt 525 V. Worcester 956 O'Mara v. R. R. 386 O'Neil V. Haskins 929 Oppenheim v. W. L. H. Co. 691 Orange Co. Bk. v. Brown 608 Orndorfi' v. Adams Ex. 589 Ortmayer v. Johnson 934 Osgood V. Clark 289 Osincup V. Ham 923 Ostrander v. Brown 573 Ouimit V. Henshaw 571, 607, 609 Overton v. Freeman 157, 175, 176, 181, 818 Owen V. R. R. 214, 243 Oxfordshire, R. v. 959 Oxlade V. R. R. 616 Ozier v. Hinesburg 962, 968 TABLE OF CASES. Pack V. City of N. Y. 193, 818 Packard v. Smith 818, 821 Packet Co. V. McCue 203 Paddock v. R. R. 349, 808 a Painter v. Pittsburg 181, 193, 818 Palmer v. Andover 85, 99, 105, 265, 976, 987 V. Mitchell 525 u. R. R. 597,616 V. Silverthorn 883 Pappa V. Rose 286 Pardee v. Drew 606 Pardington v. R. R. 300, 597, 616 Pargeter, R. v. 802, 804 Park V. Hammond 530 V. O'Brien 820 e, n, 912 Parker v. Adams 348, 384, 820 I V.Flint 6 79 V. Griswold 847 a V. May. & Coun. of Macon 255, 265 V. R. R. 397, 575, 636, 894 V. Rolls 749, 751 Parkins v. Scott 136 Parks V. Tel. Co. 756, 757 Parnaby v. L. Can. Co. 275, 279, 786 Parrott v. Wells 421, 856 Parry v. Roberts 477 Parsons v. Hardy 556 V. Monteath 588 V. St. Matthews 279, 959 V. Winchell 535 Partridge v. Gilbert 930 Passmore's case 816 a, 837 Patapsco Ins. Co. v. Coulter 73 Patch V. Covington 261 Patrick v. Commercial Ins. Co. 73 Patten v. Rea 160 V. Wiggin 730 Patterson v. Wallace 206, 211, 224, 420 Paul V. Kirby 420 Paulmier v. R. R. 205, 206, 208, 228 Payne f. Rogers 817 Peachy V. Rowland 157, 168, 818 Pease, R. v. 869 Peck P. Neil ' 113 V. R. R. 590, 597, 598 Pedley, R. u. 817 Peet V. R. R. 598 Peltonr. R. R. 571 Pemberton v. R. R. 560 Pendleton St. R. R. v. Shires 47, 627 V. Stallman 342 Penneville v. Cullen 556 Pennington v. Yell 750, 751 Penn. v. Lewis 406 Penn. R. R. v. Ackerman 804 V. Aspell 375, 377 V. Barnett 420, 836 V. Beale 382, 420 V. Bentley, 300, 382, 420, 426 V. Berry 578 V. Books 201 V. Butler 589 V. Goodman 300 V. Graham 275-7 V. Henderson 355, 357, 382, 589 V. Kelly 201, 310 V. Kerr 96, 150 V. Kilgore 377, 378 V. Matthews 427, 798 V. McCloskey 381, 589 V. Oger 420 V. Zebe 353, 366, 370, 420 Pensac. & G. R. R. v. Nash 136 Penton u. Murdock 916 People V. Canal Board 929 V. Fuller 110 V. N. Y. Gas Co. 271 Percy v. Millaudon 499, 510 Perkins v. R. R. 357, 397, 885, 893, 899 Perley v. Chandler 815 V. East. R. R. Co. 12, 20, 152, 865 Perren v. R. R. 559 Peter v. Rylands 644 Pevren v. Monmouthshire R. C. 25 Peyton v. Smith 524 Pfau V. Reynolds 420, 425 V. Williamson 788 Phelps V. R. R. 608 V. Wait 535, 788 Phil. V. Gilmanton, 127, 190, 254, 846, 847 o, 935 Phil. &c. R. R. V. Derby 354, 355, 503, 602, 627, 641 y. Hagan386, 423, 804 V. Hazzard 365, 420 V. Hummell 811 V. Kerr 946 V. Long 310 V. Phil. Tow Co. 331 V. Spearen 310, 313, 389 a, 810 V. Wilt 883 V. Yeiscr 869, 870 V. Ycrgcr 870 xxxiii TABLE OF CASES. Phil. V. W. & R. R. R. V. Kerr 94G riiillins V. Chirk 44, 565, 568, 618, 619 V. R. R. 369 Phoenix v. Phocnixville Iron Co. 815 Pick.ard v. Smith Pickens v. Diecker Pidgeon v. Wilhams Pierce v. Partridge V. Winsor Piggott V. East. Co. R. R. 185,439 157 751 289 854, 856 150, 870, 871 Pinkerton v. Woodward Pinkham v. Topsfield Pinnev v. R. R. Piordet v. Hall Piper V. N. Y. C. & H. R. R Pipi)in V. Shepherd Pitre V. Oft'utt Pitt V. Yalden Pitts V. Gaince R. V. Pittsburg V. Grier Pittsburg, &c. R. R. v. Bum stead V. Devinney V. Donahue V. Ehi-hart V. Hinds V. McClurg V. Methoen 678 980 571 125 798 437, 489, 548 595, 619 746 820 a 94 86, 190, 253, 959 311 200, 229 157 887 646 420 300, Pixley V. Clark Place V. Ex. Co. Plank V. R. R. Plantation No. 40 v. Hall Piatt V. Hibbard Playford v. U. K. Tel. Co. Plucknall v. Wilson Polack V. Pioche Polar V. R. R. Pollard V. Rowland Popplewell V. Hodkinson V. Pierce Porter v. R. R. Potter V. Bunnell V. Faulkner V. McGrath V. Parsons Poucher v. R. R. Powell V. Mills V. Myers V. Pearson 310 V. Ruby 159, 224, 238 V. Thompson 640, 660 93, 847, 852, 934 588, 700 209, 224 572, 576 422, 703 756, 758 820 a 86 753 729 911 571 786, 819 25, 201, 224, 851 554 751 618 567, 706, 708 571,599 Powell V. R. R. 420, 566 V. Salisbury Powers V. Davenport V. Irish V. IMitchell Praeger v. R. R. Pratt V. Gardiner V. Lamson V. R. R. Pray v. Jersey City Pressy v. Wirtly Prestwich v. Poley Prevost V. R. R. Price V, Powell V. R. R. Priester v. Anglcy Priestly v. Fowler Prindle v. Fletcher Probst V. R. R. Proctor V. Harris Prop. Trent &c. Nav. v. Providence v. Clapp Purves V Purvis V. Landell Coleman , 574,589,899 883 559 846 569, 703 376 286 847 a 580, 589 956 923 751 662 571 397, 883, 885 171 205, 214, 224 962, 963, 998 648 815 Wood 553, 555 251, 956, 980, 989, 990 746, 749, 751 689, 690 Q. Quarman v. Burnett Quiggin V. Duff Quimby v. R. R. V. Vanderbilt Quinn v. R. R. Quii'k V. Holt 157, 173, 177, 279, 714, 818 571, 703 238, 420, 425 578, 579, 582 367 245 R. Radcliff »'. Brooklyn Radley v. R. R. R. R. V. Adams R. R. V. Aspell R. R. V. Byers R. R. V. Caldwell R. R. V. Elliott R. R. V. Gladman R. R. V. Hagan R. R. V. Hall R. R. V. Hassard R. R. V. Huffman R. R. V. Lock wood 562, R. R. r. Mahonev R. R. Co. V. McClnre 929, 930, 991 326, 343 348, 388 377 751 348, 388, 589 348 88, 314, 423 423 423 365 382 589, 593,641, 641 a 310 382 XXXIV TABLE OF CASES. R. R. V. Meyer 201 R, R. V. Reeves 5G1 R. R. V. Richmond .Nav. Co. 588 R. R. V. Skinner 397 R. R. V. State 348, 388 R. R. V. Still 348 R. R. V. Stout 112, 314, 320, 343, 346, 348, 420, 824, 8G0 R. R. V. Wliitton 385 Ramsden v. R. R. 157 Randall v. R. R. 973 Randleson v. Murray 714 Ransom v. Hulcott 289 Raphael v. Tickford 571 Rapho V. Moore 962, 963, 977, 988 Rapson v. Cubitt 176, 181, 279, 878 Rathbun v. Payne 300 Ranch v. Lloyd 49, 163, 201, 310, 392 Rawson v. R. R. 588, 614 Rawstron v. Taylor 935 Ray V. Manchester 971, 979 Raymond v.. Lowell 265, 420 R/y. Bubb 309 R. V. Friend 309 R. V. Longbottom 389 a R. V. Longton 443 R. V. Pargeter 634 R. V. Pitts 304 R. V. Smith 309 R. V. Squire 309 R. V. Walker 309 a R. V. Williamson 94 Read v. Amidon 690 V. Edwards 913 V. Spalding 558 Readhead v, R. R. 559, 631, 633, 662, 693 Readle v. R. R. 181 Rector v. Pierce 1001 Redmayne v. R. R. 597 Reed v. Deerfield 404 V. Northfield 89, 93, 218, 219, 634, 962, 963 Reedle v. R. R. 157, 175, 176, 818 Reeve v Palmer 25 Reeves v. R. R. 420 V. Rigby 751 V. The Ship Const. 713 Renwick v. R. R. 386, 420, 804 Requa v. Rochester 959, 963 Retz V. R. R. 566 Reynolds v Clarke 843 V. Hanrahan 420 V. Hindman 804 V Stout 314, 346 Rhines v. P^ans 751, 753 Rice V. Montpelier 987, 989 Rich V. Basterfield 817 V. Kueeland 677 V. Pierpoint 730 r. Sacr. Val. R. 420 Richards v. Enfield 136, 999 y. R. R. 578,599,600,601, 612 V. Rose 930 Richardson v. Futrell 499 V. Kimble 535 V. R. R. 386, 621, 798, 799, 801, 929 Richmond v. Smith 678 Ricketts v. E. & W. Ind. Docks 443, 887 o Riddle v. Pi-oprietors of Locks & Canals 251, 956 Rigby V. Hewitt 16, 74, 114, 395 Riley v. Baxendale 205, 224 Rindge v. Inli. of Coleraine 420 Ringgold V. Ringgold 524 Ritchey v. West 731, 735 Rittenhouse v. Ind. Line of Tel. 766, 767 Rixford v. Smith 563, 565, 595, 597 Roath V. DriscoU 939 Robbins v. Chicago 186, 279 V. Jones 815, 834 Roberts v. Great Western R. C. 25 V. Rose 346 V. Smith * 25, 205, 208 V. Turner 703 Robertson v. Fleming 441 V. Kennedy 546 Robinson v. Chamberlain 285, 289, 543, 1000 V. Cone 49, 300, 310,316,348 V. Dunmore 599, 600 V. R. R. 238, 422 V. Robinson 524, 525 V. Threadgill 435 Rochester White Lead .Co. v. [^Rochester 262,285, 960, 988 Rockford v. Hildebrand 959, 980, 992 I". Thomas 977 Rockford, &c. R R. v. Lewis 397 Rock Islanil, &c. R. R. v. Fair- dough 609 «;. Lewis 893 Rockwell V. Proctor 676 V. R. R. 634 Rohl V. Parr 563 Rome R. II. 17. Sullivan 571 Rood c. R. R. 869 Root V. R. R. 578, 579, 582 Rooth V. R. R. 565 Rose V. U. S. Tel. Co. 758 XXXV TABLE OF CASES. Rosenplaentcr v. Roessle 689 Ross V. l\'(klen 934 V. Hill 4G6, 468, 786 I'. Tnnis 311 r. R R. 867 6 Rothe V. R. R. 388, 427, 571, 609, 798 Rowe V. Yoiinfr 820 i, 835 Rowell V. Lowell 85, 105 V. AVilliams 963 Rowley v. Hornc 614 Rowninjr v. Goodchild 295 Ruck V. Williams 262 Ruddock V. Lowe 730, 732 Runyan v. Caldwell 422 V. R. R. 300, 384 Russel V. Livinffston 697 Russell V. Hanicey 531 V. Lowell 99, 257 V. Mayor 126 17. R. 816 a, 846 V. Shenton 817 RusseU Man. Co. v. R. R. 422, 643 V. N. H. St. Co. 571 Ruthin V. Adams 753 Rvalls V. R. 286 Ryan v. R. R. 150, 224, 235 Ryerson v. Abiucrton 996 Rylands v. Fletcher 787, 843, 934 (See Fletcher V. Rylands.) Sackrider v. Beers 935 Sadler v. Henlock 157, 168, 181 Sageru. R. R. 589,597 Salem Bank v. Gloucester B'k 714 Salisbury v. Herchenroder 86, 980, 982 Salter v. Hurst 713 Saltus V. Eyerett 500, 546 Sammell y. Wright 177 Sarch v. Blackburn 914 Savage v. Bangor 968, 980, 989 V. Birckhead 518 Savannah i'. Cullens 255 Sawyer v. Corse 285, 296, 443 V. R. R. Co. 821 V. Sauer 820 in Saxton V. Bacon 136, 884 Scammon ;;. Chicago 181, 193, 818 Schieffelin v. Harvey 655-560 Schierhold v. R. R. " 49, 306, 313 Schloss V. Heriot . 300, 326 Schmidt v. Blood 422, 478 School Dist. V. R. R. 589 Schroyer v. Lynch 292-3 xxxvi Schuylkill Nav. Co. v. McDonough 278, 847 Schwartz v. Daegling 533 V. Gilmore 786 V. R. R. 804 Scothorn v. R. R. 578 Scott u. Crews • 672 V. Dublin 348 2;. Hale 867 c V. Hunter 86, 89, 96 V. London, &c. Dock Co. 421, 422, 828, 844 •v. Nat. Bk. of Chester 457, 473 V. Scott 177 V. Shepherd 95, 138, 150, 881 (See Appendix.) Scribner v. Kelley 91 7, 921 Seagrave v. Union Mar. Ins. Co. 73 Searle v. Laverick 693 V. Lindsay 223, 229 Sears v. Dennis 93, 985 V. R. R. • 662 Seaver v. R. R. 209, 643 Sebag V. Abithol 25 Seigel V. Eisen 365, 420, 559 Seller v. Work 530 Senior v. Ward- 16, 77, 224, 326 Sewall V. Allen 622 Sewell V. R. R. 214 Sexton V. Zett 420, 815 Seymour v. Cook 690 V. Greenwood 160, 177 u. Maddox 217,348 Sharp V. Grey 559, 626, 631, 633 Sharrod v. R. R. 899 Shartle v. Minneapolis 959 Shaw I'. Berry 679 V. Kidder 751 V. R. R. 597, 778, 798 Shea V. R. R. 798, 820 / Sheaf V. R. R. 343, 397, 798 Sheffield v. R. R. 384 Shelden v. Sherman 934 Sheldon v. R. R. 869, 870 Shepard v. R. R. 893, 900 Shepherd v. Chelsea 136, 987, 989 V. Pybus 775 V. R. R. 571 Sherfyu. Bartley 913, 926 Sheridan v. Charlick 168 Sherman v. Bean 925 Shields v. Blackburne, 355, 438, 499 Shillibeer v. Glynn 503, 509 Shillock V. Passman 751 Shinkle v. Covington 264 Ship Howard v. Wiseman 56 7 Shijjley v. Fifty Assoc. 843, 992 TABLE OF CASES. Slioebottom v. Egerton Slu'eve V. Stokes Slirewsbuiy v. Smith Shuster v. McKellar Sibley v. Aldrich Sill V. Brown Silliman v. Lewis Silvers v. Nerdlingen Simmons v. Rose 272, 829 929 616, 778, 847 175 678 300 300, 952 188, 973, 978 753 V. Steamboat Co. 420 Simons v. Henry 735 V. R. R. 597 Simpson v. Hand 300 Simson v. London General Omnibus Co. 19 I Siner v. G. W. R. 363, 375, 376, 377 Singleton y. R. R. 311 Siordet v. Hall 559 Sioux City R. R. v. Stout 314, 320, 343, 346, 348, 420, 824, 860 Sizer v. R. R. 224 Skelton v. R. R. 300, 382 Skinner v. R. R. 128, 627, 635, 661 Skipp V. R. R. 208, 223, 224, 243 Sleatli V. Wilson 168 Sleeper r. Sandown 307 Slimy. R.R. 597 Slimmer v. Merry 706 Smedes v. Elmendorf 751 Smith V. Dixon 751 V. Dobson 77 V. Docks Co. 21, 349, 823 V. Fu-st Nat. Bank 454, 466, 469 V. Fletcher 787, 852, 858, 934 V. Frampton 786 V. Hardesty 929 V. Horn 590 V. Howard 241 V. Kenrick 787 1'. Lascelles 530 V. Lawrence 177 V. Lowell 403 V. ]\Iilwaukee 934 V. R. R. 98, 150, 420, 571, 573, 574, 589, 606, 786, 822, 867 6,869, 870,873,883,887 R. V. 798 V. Seward 706 V. Smith 395 V. Thuckerah 929 V. Trawl 285 f. Webster 157 Smoot V. AVatumjika 959 Smothers v. Hanks "35 Smvrl V. Niolan 556 Sneesby v. R. R. 103, 836, 898 Sneider v. Geiss 690 Snow V. Adams 971 V. Parsons 935 V. R. R. 89, 93, 94, 209, 212, 219, 221, 403 Sodowsky v. McFarland 476 Solomon v. Vintners' Co. 930 Southampton Bridge Company v. Local Board of Health " 262 Southcote V. Stanley 99, 224, 245, 348, 349, 824 o, 825 So. Ex. Co. V. McVeigh 499, 573 V. Newby 701 Southern R. R. v. Kendrick 379, 650 South Shields Co. v. Cookson 939 Southwest R. R. v. Paulk 3 77 South wick V. Estes 171 Southworth v. R. R. 394, 425 Spades v. Com. 110 Sparhawk v. Salem 973, 976 Spaulding v. C. & N. R. R. Co. 867 c, 870, 872, 878 Silence v. R. R. 398 Spencer v. Campbell 858 V. 111. Cent. R. R. 804 Spofford V. Harlow 820 h Spooner v. Mattson 457, 463 Springfield v. Le Claire 959, 984 Sprague v. Baker 751 Sprong V. R. R. 212, 215, 643 Sproul V. Hemingway 1 76 Squire v. R. R. 595, 596, 616, 618, 763, 767 St. John V. Paine 946 St. Louis V. Gurno 252 St. Louis R. R. V. Gilham 872 V. Manly : 82, 389 a, 804 V. Terhune 804 St. Pancras v. Battersbury 443 Stackhouse v. Lafayette 959 Stannard v. UUithorne 751 Stanton v. Springfield 980 Stapley r. R. R. 387, 808 Stapple V. Spring 817 State V. Buckley 271 I'. Fryebcrg 997 r. Gorham 969 V. ILxrper 290 r. INIoore 34 7 r. ISIuHikia 271 V. O'Brien 634 V. R. R. 300, 343, 348, 382, 420, 651, 819 V. Robinson 518 V. Sloan 297 r. Vi.nce 110 XXXvii TABLE OF CASES. Steamboat V. King 64, 602, G27, 702, 857 Stcamlioat Palace v. Vanderpool COl Steel V. K. K. 181, 183, 818 Steele v. Btirkliardt 311, 330, 338 V. Townsend 422, 589 Steinweg v. R. R. 52, 598, 635, 640, 734 Stephens v. Walker Stephenson v. Hart Sterling v. Thomas Stevens r. Boxfbrd V. Ilartwell V. Peacocke V. R. R. V. S(|uires V. Walker Steves V. R. R. Stewart v. liar. Col. V. R. R. Stickney v. Maidstone r. Salem Stiles V. Geesey V. St. Nav. Co. Stimpson v. R. R. Stimson v. R. R. Stinson v. Gardiner Stock V. Harris Stockwell V. Fitchburg Stokes V. R. R. V. Saltonstall V. Trumper Stone V. Cartwright V. Hubbardstown V. Jackson r. Marsh Stoi'er v. Gowan Storey v. Ashton Storrs V. Utica 751 700 959, 981, 989 93, 985 136 443 569 176 751 384, 804 845 398, 599 983 974, 983 342 917, 923 606 604 991 295 992 627, 631 304, 627, 660 751 172 104, 980, 983 344, 346 741 420 160, 170, 172 180, 191, 279, 818, 956, 959, 973, 978 817 934 938 Stoughton, R. V Stout V. Adams V. Millbridge Co. Stover V. Shugart 883 Strahlendorf v. Rosenthal 300, 423 Stratton v. R. R. 604 V. Staples 352, 420, 830 Street y. Holyoke 114,980 Streeter v. Horlock 703 Strohn v. R. R. 662 Stuart r. Crawley 621, 867 V. Inh. of Machias Port 420 Stubley i'. R. R. 333, 382, 798, 867 Studley v. AVright 88, 883 Stumps V. Kelley 908 Sullivan v. R. R. 144, 353, 629, 659, 660 xsxviii Sullivan v. Scripture V. Waters Sully V. Duranty Supervisors v. U. S. Sussex V. Strader Sutton V. Wauwontosa Suydam v. Moore V. R. R. Swannell v. Ellis Sweatland v. Tel. Co. Sweeney v. R. R. 344, Sweet V. Barney Swift V. Applebone V. R. R. Swindler v. Brooks Swords V. Edgar Sykes v. Pawlet Syracuse, The Steamer 616, 713,778, 820 349, 845 124 959 956 ,78, 331 175, 535, 879 820/1 751 762 352, 438, 822, 824 a, 826 697 912 398 589 823 968 947 Taafe v. Downes Taber v. Perolt Tabor v. R. R. Tallahassee v. Fortune 286 523 386 993 Tally V. R. R. 564, 599, 601 Taphan v. Curtis 934 Taverner u. Little 172, 177 Taylor v. Alfred 285 V. At. Ins. Co. 846 V. Clay 77 V. Coldwell 776 V. Day 627 V. Dunbar 73 V. Gorman 751 V. Inh. of Plymouth 126 V. R. R. 627 V. Redway 635 V. St. Louis 252 Teall V. Barton 874 Tebbutt V. Bristol & Ex. R. R. 167, 224 Tefft V. Wilcox 735 Telfer v. R. R. 306, 313, 361, 382, 386, 389 a, 803 Templeman v. Haydon 25, 421 Tenant v. Gold win 852 Terre Haute & St. L. R. R. v. Augustus 398 Tew, Rex v. 751 Tharsis v. Loftus 286 Thayer v. Arnold 883 V. Boston 190, 224 The Governor, &c. v. Meredith & others 252 TABLE OF CASES. The Halley 279 The Lion 279 The Thetis 279 Thibaut v. Thibaut 456 Thickstun v. Howard 678 Thomas v. Braekney 935 V. Kenyon 843 i;. Morgan 913 V. R. K. 584 V. West. Un. Tel. 337 V. Winchester 91, 441, 774, 854 Thomes v. Day 571 Thompson v. Harlow 715 V. Lacy &79 r. R. R. 326,423,443 Thorne v. Deas 355, 438, 442, 450 Thorogood v. Bryan 300, 395 Thorp V. Brookfield 306, 975 V. Hammond 947 Thringo v. Cent. Park Co. 427 Thm-ston v. Hancock 929 V. St. Joseph 252, 262, 959 Tillotson V. Smith 934 Tindall, R. v. 846 Tinney v. R. R. 205, 209, 213 Titus V. Northbridge 105, 166 Tobin V. P. S. & P. R. R. 815, 821, 826 Todd V. Cochell 934 V. Flight 817 V. Old Col. R. R. 49, 300, 361 , 366 Toledo, &c. R. R. v. Baddely 49, 378 V. Bray 397, 893 V. Conroy 631 V. Cory 398, 887 V. Daniels 887 V. Goddard 300, 381, 384 V. Hammond 607 V. Harmon 836 V. Howell 887, 889 V. Ingraham 397 V. Merriman 579 V. Owens 889 a V. Riley 306 V. Rumbold 901 V. Weaver 398 u. Wickery397,886 Tompkins ?'. Saltmarsh 422, 500 Tonawanda R. R. v. Munger 397, 883, 885, 886 Tooker v. Gornier 700 Toole V. R. R. 818 Toomey v. Brighton Ry. Co. 129, 136 421, 422, 654, 822 Torbush V. Norwich 261 Totten V. Phipps 420 Tourtelot v. Rosebrook 422, 866, 867 Tower v. R. R. 601 Town u. Lamphire 911,923 Towns y. Chephue 39 7 V. R. R. 893 Townsend v. Wathen 347 Tracy v. R. R. 901 V. Williams 286 W.Wood 462,507 Transportation Company v. Down- er 422 Trask v. Ins. Co. 760 Treadwell v. Commis. 266 Trent Navigation i'. Wood 114 Treson v. Pearman 751 Tripp V. Lyman 980, 998 Trout v. R. R. 896 Trow V. R. R. 303, 348, 388, 420, 424, 427 True V. Tel. Co. 757, 763 Tuberville v. Stamp 12, 20, 160, 865 Tucker v. Bradley 289 V. Henniker 105 V. Newman 843 Tuff V. Warman 77, 300, 329, 395 Tunney v. R. R. 203, 224 Tupper V. Clark 64, 921, 923 Turley v. Thomas 820 h Turner v. Hayden 25 Turney v. Williams 524 Turnpike Co. v. Wallace 254 Tuttle V. Holyoke 985 U. Umlauf V. Bassett 723 Unger v. R. R. 635-9 Un. Pac. R. R. V. Fort 219, 229 V. Nichols 355, 643 V. Rollins 420 V. Young 224 Union Steam, &c. Co. v. Notting- ham 300 United King. Elec. Tel. Co., R. r. 819 United Society of Shorewater r. Underwood 474 U. S. V. DashioU 290 V. Trescott 290 U. S. Ex. Co. I'. Rush 581 U. S. Telegraph Co. v. Gilder- sleeve 762 Upton V. Townsend 187 xxxix TABLE OF CASES. V.iil V. Jackson 751 Van(lerl)nr'4 v. Truax 94 Vandcrgrift v. R. \\. 883, 886, 899 I'. Kedikor 893 Vanderplank v. Miller 300 Vanderpool v. Husson 816 a Vandyke v. Cincinnati 962 Van Eppes v. Couunis. 266 Van Hoesen v. Canterbury 935 Van Horn v. Kermit 603, 609, 613 Van Leuven v. Lyke 908, 917, 923 Van Lien v. Scoville Manf. Co. 300 Van Santvooi'd v. St. John 581 Van Schaick v. R. R. 300 Varnnm v. Martin 749 Vaughan y. Menlove 786,866,867 c V. Taff Vale R. C. 128 151,869 Veazy V. P. R. R. 819 Vedder v. Vedder 817 Vennel v. Garner 312, 329 Verrill v. Minot 993 Veye v. Smith 671, 718 Vicars v. Wilcox 102, 141, 885 Vicksburg, &c. R. R. v. Patten 883 V. AVilkins 214 Vinal V. Dorchester 969 Viner v. Co. 420 Virgil, The 950 Vkginia R. R. v. Sanger 272, 800 Vise. Canterbury v. A. G. 786 Vose V. Lancashire & Yorkshire R. C. 25 Vrooman v. Lawyer 913, 923 Wallace v. Clayton 114 V. N. Y. 992 Waller v. R. R. 227, 230, 379 Walpole V. Carlisle 749, 751 Walrod V. Ball 420 w. Waggoner v. Jermaine Waite 1'. R. R. Wake V. Attev Wakefield v. R. R. Wakeman v. Robinson Walcott V. Swampscott Walden v. Finch Waldron v. R. R. Walker v. Boiling V. British Soc. V. Goe V. Goodman V. Herron V. Jackson V. Maitland V. R. R. Walkiuson v. Lantrton xl 817, 988 300, 311, 312 530 804 114, 921 191 728 899 229, 241 559 136, 443 749, 750 883 707 73 597, 661 555 Walsh V. Miss. Val. Tr. Co. 300, 398 Walters v. Pfcil 930 Wanless v. N. E. R. R. Co. • 808 Wann v. Tel. Co. 760, 763, 764 Warburton v. R. R. 181 Ward V. Jefferson 980 V. Lee 262, 279 V. R. R. 342, 877 Warder v. R. R. 213 Warner v. Griswold 753 V. R. R. 212, 213, 223, 229, 241, 314, 420, 798 Warren v. R. R. 144, 300, 373, 424, 652 Washburn v. Jones 685 Wash. &c. R. R. v. Gladman, 88, 314,423 Wash. & N. Y. Tel. Co. v. Hob- son 756 Water Co. v. Ware 180, 186, 279, 956 Waters v. Moss 883 V. Wing 426 Watson V. INIuirhead 751 Watts V. Porter 751 R. V. 846 Wayde v. Carr 820 h Weare v. Fitchburg 992 Webbf. R. R. 151,300,382,425, 799, 800, 867, 875 Webster v. R. R. 395 V. Stevens 930 Weed V. R. R. 578, 582, 608, 662 Weems v. Mathieson 211 Weet r. Brockport 251, 274, 959 Weger v. R. R. 201, 224, 229 Weightman v. Washincrton 190, 251, 260, 261, 443, 956, 959 Weise v. Smith 846, 848 Welch V. Lawrence 820 ject of an action unless accompanied with a positive act ; as when one fails to give notice when cutting down trees or casting tiles from a roof ; ^ or when a surgeon neglects to apply the remedies necessary after an opera- tion.^ The principle is, that whoever does an act nmst do all necessary to keep such act from injuring others. 2. By the letter of the Lex Aquilia, to constitute a delict it is necessary that injury should be done to a particular thing 1 See further infra, § 780, whore 2 j^. 31. j). j^^x A. Dewey, 107 Mass. 494; nibus Co., L. R. 8 C. P. 390. citing Tubervill v. Stamp, 1 Salk. 13 ; 14 BOOK I.] ESSENTIALS OF. [§ 22. § 21. So, in a case in 1870, in the English exchequer cham- ber,^ where the question was directly agitated, the evidence was that the defendants, a railway company, left a pile of dry trim- mings and rubbish, in a hot summer, by the side of their track ; that the pile ignited from sparks from the defendants' engines ; and that fire crossed a hedge and stubble field, and consumed the plaintiff's cottage, at a distance of two hundred yards from the railway. Brett, J., when the question arose in the common pleas,'"^ argued against the liability on the ground that " no reasonable man would have foreseen " that the cottage would have been thus burned. But the common pleas nevertheless held that the defendants were liable, and this was affirmed in the exchequer chamber. " It is because I thought, and still think," said Kelly, C. B., in the latter court, " the proposition is true, that any reasonable man might well have failed to an- ticipate such a concurrence of circumstances as is here described, that I felt pressed at first by this view of the question ; but on consideration, / do not feel that that is a true test of the liability of the defendants in this case. It may be that they did not anticipate, and were not bound to anticipate, that the plaintiff's cottage would be burned as a result of their negligence ; but I think the law is, that if they were aware tiiat these heaps were lying by the side of the rails, and that it was a hot season, and that therefore by being left there the heaps were likely to catch fire, the defendants were bound to provide against all circum- stances that might result from this, and were responsible for all the natural consequences of it." " When there is no direct evi- dence of negligence," said Channell, B., " the question what a reasonable man might foresee is of importance in considering the question whether there is evidence for the jury of negligence or not ; and this is what was meant by Bramwell, B., in his judgment in Blyth v. Birmingham Water Works ; ^ but when it has been once determined that there has been evidence of neg- ligence, the person guilty of it is equally liable for its conse- quences, whether he could have foreseen them or not.''^ ^ § 22. When the imperfection in the discharge of duty is so Filliter r. Phippard, 11 Q. B. 347; 2 j^.^w Rep. 5 C. P. 98. Perley v. East. R. U. 98 Mass. 414. » 11 Ex. 781. 1 Smith V. London & S. W. Ry. * Smith v. London & S. W. Ry. Co., Co., L. R. 6 C. P. H. Law Rep. 6 C. P. 21. 15 § 23.] NEGLIGENCE : [BOOK I. gross as to make it improbable that it was the result of mere inad' vertence, then in proportion to such improbability does the proba- bility of negligent injury diminish^ and that of malicious injury increase. — Was there malice, is the question that is to be deter- mined in such case. If there was malice, then the defendant is responsible for the injury flowing from his malicious acty though on an issue and with pleading distinct from those which charge negligence. But whether there was malice is to be inferred by inductive reasoning as a matter subject to probable proof. Thus, to recur to the illustration already adduced, a farmer, by setting fire to his underbrush, causes his neighbor's house to burn down. Four distinct solutions of the act may be given: (1) It may have been by vis major., or by such incalculable and extraordinary natural interposition as is called in the books the act of God. (2) It may have been by the interposition of an independent human will. (3) It may have been by his negligence. (4) It may have been by his malice. And malice in this, as in all other cases, is to be inferred from facts : from the violence of the wind, from the proximity of the neighbor's house, from the close- ness of intermediate inflammable material, and from the defend- ant's own condition of mind, evidenced, among other things, by prior attempts of a similar character. Half a dozen similar ignitions would go a great way to exclude the idea of inadver- tence, and to establish that of design. Twenty similar ignitions, immediately preceding, after due knowledge of the consequences, would approach as closely to demonstrations of design as induc- tive pi'oof usually approaches. § 23. In this light are we to understand the famous rule of the Roman law : Magna negligentia culpa est, magna culpa est dolus} Mr. Austin, while giving to this and similar maxims an erroneous gloss,^ concurs in the position that the question of dolus, in such case, is one to be determined inferentially from all the acts of the particular case. But he is in error in saying that the meaning of the Roman lawyers was, that, " j^^dging from the conduct of the party, it is impossible to determine whether he intended, or whether he was negligent, or heedless, or rash. And such being the case, it shall be presumed that he intended, and his liability shall be determined accordingly, provided the question arise in a civil action. If the question had arisen in the course of 1 L. 1. Dig. (47. 4). 2 Lect. on Juris. 3d ed. I. 441. 16 BOOK I.] ESSENTIALS OF. [§ 23. a criminal proceeding, then the presumption would have gone in favor of the party, and not against hira." I can find no trace of this distinction in the modern Roman jurists, nor is it alluded to by them as in any way recognized in the Digest. On the contrary, the doctrine always assumed by these jurists is, that malice is not a presumption of law, but an inference of fact (unjuristische Wahrschehilichkeit, presumtio hominis, presumtio Judieis), to be drawn by the process of ordinary inductive reasoning from the circumstances of each particular case. And the test is one they apply to criminal and civil issues alike. ^ ^ See this point fully discussed in Wharton's Criminal Law, 7th ed. § 707-712. " By the Roman lawyers," says Mr. Austin (Lectures, 3d ed. I. 441), " rashness, heedlessness, or negligence is, in certain cases, considered equiva- lent to ' dolus ; ' that is to say, to in- tention, ' dole comparatur. ' ' Vix est ut a certo nocendi proposito dis- cerni possit.' Changing the expres- sion, they suppose that rashness, heed- lessness, or negligence can hardly be distinguished, in certain cases, from intention. " Now this, it appears to me, is a mistake. Intention, it seems to me, is a precise state of the mind, and can- not coalesce or commingle with a dif- ferent state of the mind. ' To intend,' is to believe that a given act will fol- low a given volition, or that a given consequence will follow a given act. The chance of the sequence may be rated higher or lower ; but the party conceives the future event, and be- lieves that there is a chance of its fol- lowing his volition or act. Intention, therefore, is a state of consciousness. "But negligence and heedlessness suppose Mnconsciousness. In the first case, the party docs not think of a given act. In the second case, the party does not think of a given conse- quence. " Now a state of mind between 2 consciousness and unconsciousness, — between intention on the one side and negligence or heedlessness on the other, — seems to be impossible. The party thinks, or the party does not think, of the act or consequence. If he think of it, he intends. If he do not think of it, he is negligent or heed- less. To say that negligence or heed- lessness may run into intention, is to say that a thought may be absent from the mind, and yet, after a fashion, present to the mind. Nor is it possi- ble to conceive that supposed mongrel or monster, which is neither temerity nor intention, but partakes of both — a state of mind lying on the confines of each, without belonging precisely to the territory of either. " The party who is guilty of rash- ness thinks of a given consequence ; but, by reason of a missupposition arising from insufficient advertence, he concludes that the given conse- quence will not follow the act in the given instance. Now if he surmise (though never so hastily and faintly) that his missupposition is unfounded, he intends the consequence. For he thinks of that consequence; he believes that his missupposition 7na>/ be a mis- supposition; and he, therefore, be- lieves that the consequence may fol- low his act. " I will again revert to the example which I have already cited repeatedly. 17 §24.] NEGLIGENCE [book I. § 24. Legal Duty. Definition and Classification. — A legal duty is tluit which the law requires to be done or forborne to " When I fire at the mark chalked upon the fence, it occurs to my mind that the shot may pierce the fence, and may chance to hit a passenger. But I assume that the fence is sufficiently thick to intercept a pistol-shot. Or, without going to the road in order that I may be sure of the fact, I as- sume that a passenger cannot be there because the road is seldom passed. " Now if my missupposition be ab- solutely confident and sincere, I am guilty of rashness only. " But, instead of assuming confi- dently that the fence will intercept the ball, or that no passenger is then on the road, 1 may surmise that the assumption upon which I act is not altogether just. I think that a pas- senger may chance to be there, though I think the presence of a passenger somewhat improbable. Or, though I judge the fence a stout and thick pal- ing, I tacitly admit that a brick wall would intercept a pistol-shot more cer- tainly. Consequently, I intend the hurt of the passenger who is actually hit and wounded. I think of the mis- chief, when I will the act ; I believe that my missupposition may be a mis- supposition ; and I, therefore, believe there is a chance that the mischief to which I advert may follow my voli- tion. " The proposition of the Roman lawyers is, therefore, false. The mis- take, I have no doubt, arose from a confusion of ideas which is not unfre- quent, — from the confusion of pro- bandum and probans, — of the subject of an inquiry into a matter of fact, with the evidence. " The state of a man's mind can only be known by others through his acts, through his own declarations, or through other conduct of his own. 18 Consequently, it must often be diffi- cult to determine whether a party in- tended, or whether he was merely neg- ligent, heedless, or rash. The acts to which we must resort as evidence of the state of his mind may be ambirju- ous ; insomuch that they lead us to one conclusion as naturally as to the other. Judging from his conduct, the man may have intended, or he may have been negligent, heedless, or rash. Either hypothesis would fit the ap- pearances which are open to our ob- servation. " But the difficulty which belongs to the evidence is transferred to the sub- ject of the inquiry. Because we are unable to determine ichat was the state of his mind, we fancy that the state of his mind was itself indeterminate ; that it lay between the confines of con- sciousness and unconsciousness, with- out belonging to either. We forget that these are antagonist notions, in- capable of blending. " AVhen it was said by the Roman lawyers that negligence, heedlessness, or rashness is equivalent, in certain cases, to dolus or ' intention,' their meaning, I believe, was this : " Judging from the conduct of the party, it is impossible to determine whether he intended, or whether he was negligent, heedless, or rash. And such being the case, it shall be pre- sumed that he intended, and his liabil- ity shall be adjusted accordingly, pro- vided that the question arise in a civil action. If the question had arisen in the course of a criminal proceeding, then the presumption would have gone in favor of the party, and not against him. " Such, I think, is the meaning which floated before their minds ; al- though we must infer, if we take their BOOK I.] MEANING OF " LEGAL DUTY." [§ 24. a determinate person, or to the public at large, and is correlative to a right vested in such determinate person, or the public at oblio;ed. He breaks a positive expressions literally, that they be- lieved in the possibility of a state of mind lying between consciousness and unconsciousness. If I attempted to explain the matter fully, I should en- ter upon certain distinctions between civil and criminal liability, and upon the nature of pi-aesumptiones juris, or legal presumptions. It is, therefore, clear to me, that intention is always separated from negligence, heedless- ness, or rashness, by a precise line of demarcation. The state of the party's mind is always determined, although it may be difficult, judging from his con- duct, to ascertain the state of his mind. " Before I quit this subject, I may observe that hasty intention is fre- quently styled mshness. For instance, an intentional manslaughter is often styled rash, because the act is not pre- meditated, or has not been preceded by deliberate intention. " Before we can distinguish hasty from deliberate intention, we must de- termine the nature of intention as it regards future acts. But it is easy to see that sudden or hasty intention is utterly different from rashness. '• When the act is done the party contemplates the consequence, al- though he has not premeditated the consequence or the act. " To resume : — " It is manifest that negligence, heedlessness, and rashness are closely allied. Want of the advertence which one's duty would naturally suggest is the fundamental or radical idea in each of the complex notions. But though they are closely allied, or are modes of the same notion, they are broadly distinguished by differences. " In cases of negligence, the party performs not an act to which he IS duty. " In cases of heedlessness or rash- ness, the party does an act from which he is bound to forbear. He breaks a negative duty. " In cases of negligence, he adverts not to the act which it is his duty to do. " In cases of heedlessness, he ad- verts not to consequences of the act which he does. " In cases of rashness, he adverts to those consequences of the act; but, by reason of some assumption tchich he examines insufficiently, he concludes that those consequences will not fol- low the act in the instance before him. " And, since the notions are so closely allied, they are, as might be expected, often confounded. Heed- lessness is frequently denoted by the term ' negligence ; ' and the same term has even been extended to rash- ness or temerity. But the three states of mind are nevertheless dis- tinct; and, in i-esiDCct of differences between their consequences, should be distinguished. " But intention, negligence, heed- lessness, or rashness is not of itself injury or wrong; is not of iV.vc//' breach of duty ; will not of itself place the party in the plight or predicament of guilt or imputability. Intention, neg- ligence, heedlessness, or rashness will not place the party in the plight of guilt or imputability, unless it be fol- lowed or accompanied by an act, for- bearance, or omissiun : by an act, for- bearance, or omission which amounts to an injury or wrong, provided it be preceded and accompanied by that state of the mind. Action, forbear- ance, or omission is as necessary an 19 § 24.] NEGLIGENCE : [book I. large. 1 " Every right, be it primary or sanctioning, resides in a person or persons determinate or certain ; meaning by a person ingredient in the notion of injury, pecting consequences ; or, I presently guilt, or iniputahility, as the inten- do an act, or am presently inactive, tion, negligence, heedlessness, or rash- knowing that the act which I do, or ness, bv which the action, forbear- the inaction wherein I am, excludes ance, or omission is preceded or for the present the performance of an- accompanied. The notion of injury, other act In the former case, I presently do an act, intending consequences. In the latter case, I presently forbear from an act. " In either case, my intention is necessarily coupled with a present act or forbearance ; and the word ' inten- tion ' has no meaning, unless the con- sciousness or belief to which it is applied be considered in conjunction with that act or forbearance. " If my intention regard the future, I presently expect or believe that I shall act or forbear hereafter. " And in this single case, it is, I think, possible to imagine, that mere consciousness might be treated as a wrong ; might be imputed to the par- ty; or might place the party in the plight or predicament which is styled imputability or guilt. " We might, I incline to think, be obliged to forbear from intentions which regard future acts or future forbear- ances from action ; or, at least, to for- bear from such of those intentions- as are settled, deliberate, or frequently recurring to the mind. The fear of punishment might prevent the fre- quent recurrence, and might, there- fore, prevent the pernicious acts or forbearances, to which intentions, when they recur frequently, certainly or probably lead. " Be this as it may, I am not aware of a positive system of law wherein an intention, without an act or forbear- ance, places the party in the predica- ment which is styled imputability. In o-uilt, or imputability does not consist of either considered alone, but is com- pounded of both taken in conjunction. " This may be made manifest by a short analysis. " If I am negligent, I advert not to a given act; and, by reason of that inad- vertence, I omit the act. " If I am heedless, I will and do an act, not adverting to its probable con- sequences ; and, by reason of that in- advertence, I will and do the act. " If I am rash, I will and do an act, adverting to its probable conse- quences ; but, by reason of a missup- position which I examine inadvertent- ly, I think that those probable conse- quences will not ensue. And, by reason of my insufficient advertence to the ground of the missupposition, I will and do the act. " Consequently, negligence, heed- lessness, or rashness supposes an omission or act which is the result of inadvertence. To that inadvertence, as taken or considered in conjunction with the omission or act, we give the name of negligence, heedlesness, or rashness. But none of those names has the shadow of a meaning, unless the inadvertence, to which it is ap- plied, be considered in conjunction with the omission or act of wliich the inadvertence is the cause. " If I intend, my intention regards the present, or my intention regards the future. If my intention regards the present, I presently do an act, ex- 1 See Lord Brougham's statement of this point, supra, § 3. 20 BOOK I.] ESSENTIALS OF. [§ 24. determinate, a person determined specifically." The duty may be to the public at large ; e. g. a, duty not to commit a nuisance ; but in civil issues, the right to enforce this duty must reside in individuals. " Duties answering to rights which avail against the world at large are negative ; that is to say, duties to forbear. Of duties answering to rights which avail against persons deter- minate, some are negative^ but others, and most, are jyositive ; that is to say, duties to do or perform By most of the modern civilians, though not by the Roman lawyers, rights availing against the world at large are named jura in rem ; rights availing against persons determinate, jura in personam^ or jura in personam certam The proprietor or owner of a given subject has a right in rem ; since the relative duty answer- ing to his right is a duty incumbent upon persons generally and indeterminately^ to forbear from all such acts as would hinder his dealing with the subject agreeably to the lawful purposes for which his right exists. But if I singly, or I and you jointly, be obliged by bond or covenant to pay a sum of money, or not to exercise a calling within conventional limits, the right of the obligee or covenantee is a right in personam ; the relative duty answering to his right being an obligation to do or to forbear, which lies exclusively on a person determinate." I The expression, right in rem, is not unknown to our Anglo- every positive system of which I have must be made to this lucid exposition. any knowledge, a mere intention to If dolus is to be regarded as always forbear in future is innocent. And implying evil intent, then no doubt an intention to act in future is not irn- the exception taken by Mr. Au!;tin to puled to the party, unless it be fol- the Roman law in this respect is cor- lowed by an act which accomplishes rect. But in the Roman law, as will his ultimate purpose, or by an act be hereafter shown, dolus, in its most which is an attempt or endeavor to general sense, means crime, and may accomplish that ultimate purpose. In be consistent with a reckless disre- either case, the party is (juilty, because gard of law, though unaccompanied the intention is coupled with an act ; by any specific intent to break any and with an act from which he is particular law. That in the Anglo- obliged to forbear or abstain. For, American law malice may in such though he is not obliged to forbear cases be inferred, has been elsewhere from the intention, he is obliged to shown. Wharton's Cr. Law, § 712. forbear from endeax>ors to accomplish Between the Roman law and our own, that intention, as well as from such therefore, in this respect, the differ- acts as might accomplish his intention ence is but slight. directly." ^ Austin's Lect. on Jin-is. 3d ed. One additional exception, however, I. 4 7. 21 § 25.] NEGLIGENCE : [bOOK I. American law, though not ordinarily applied to the present topic. Mechanics' liens, jidmiralty liens and judgments, con- vey rights in rem, i. e. rights against all the world, so far as concerns the particular thing to which they attach. But rights in rem are not limited to property in the narrow sense of the term. Undoubtedly I possess a right in rem against all the world (requiring as a correlative duty, forbearance to molest me in such a right) in my field, or my house. But I hold a similar right in rem, sustained by similar sanctions, over any incorporeal thing I possess, such as a right of common or of way. I hold, also, a similar right in rem in my apprentice, or my child ; in other words, in such cases, a right in rem in a person. So, also, I may have a right in rem in a franchise or monopoly, which right also avails against all the world. Hence we may accept as accurate Mr. Austin's classification of rights in rem : *•' 1. Rights m rem of which the subjects" (Mr. Austin rejects the German terminology as to subjects and objects, making the subject the thing acted on) " are things, or of which the objects " (the relative duties) " are such forbearances as determinately re- gard specifically determined things. 2. Rights in rem of which the subjects are persons, or of which the objects are such for- bearances as determinately regard specifically determined persons. 3. Rights in rem without specific subjects, or of which the ob- jects are such forbearances as have no specific regard to specific things or persons." ^ 4. To this may be added, as rights availing against the public at large, the right of personal liberty, security, and reputation. Each of these, in the sense in which the term is here used, constitutes a jus in rem, that is to say, a right avail- able against all by whom it may be assailed. § 25. Meaning of damnum and injuria. — We must remem- ber, when we adapt the Roman law maxims of damnum and injuria, as is so often done by our judges, to our own practice, that injuria has a meaning distinct from that popularly assigned to our term " injury." Injuria is the feminine of the adjective injurius, and means, therefore, an unlawful act, or, as Pernice ^ defines it, an objective unlawfulness. From this, as this intelli- gent commentator well shows, is developed the idea of hurt illegally perpetrated, whether this hurt be to property or char- 1 Austin's Lect. on Juris. 3d ed. I. ^ Sachbeschadigungen, 27. p. 49. 99 BOOK I.] DEFINITION OF " DAMNUM " AND " INJURIA." [§ 25. acter. So far as concerns the actor, the language is, facer e im- ponere inferre jacere immittere injuriam ; so far as concerns the sufferer, aceipere pati ferre. In the Corpus Juris the word, when juridically used, is applied exclusively to the outward act, never being used to express the relation to such act of the actor. The word, therefore, includes all quod non jure fit ; that is to say, everything that is repugnant to law. If there is no such repug- nancy in the concrete, there is no injuria^ although in an abstract sense a law may have been violated. Thus, for instance, the actor may be acting in self-defence, or may be irresponsible, in which case, though hurt may be inflicted, there is no injuria. Of course, these qualifications are to be taken into consideration where particular cases are to be investigated. It is with such qualifications that we are to consider the general definition of Ulpian : ^ " Injuria ex eo dicta quod non jure fit ... . hoc generaliter, specialiter autem injuria dicitur contumelia. In- terdum injuriae appellatione damnum culpa datum significatur, ut in lege Aquilia dicere solemus." Other passages to the same effect may be cited ; but the terms of the Aquilian law are by themselves conclusive. No doubt the word is used by the jurists in a narrow technical sense, in its relation to attacks upon character ; but this does not affect the principle that in a general sense whatever inflicts an illegal hurt on person and property (supposing the actor in his partic- ular act be responsible) is an injuria. There may be therefore damnum without injuria., for the hurt may not have been per- petrated by a responsible agent, or it may have been inflicted lawfully. There can, however, be no injuria (so far as concerns civil proceedings) without damnum.'^ ^ L. pr. de injur. 47. 2. negligence being defined to be " the 2 " In the next place," says Mr. omission to do something which a Broom (Com. 5th ed. p. 368), "it reasonable man, guided ujxjn those may be laid down, as a true proposi- considerations which ordinarily regu- tion, that although bare negligence, late the conduct of human affairs, unproductive of damage to another, would do, or doing something which will not give a right of action, negli- a prudent and reasonable man would gence causing damage will do so : ^ not do"; * negligence, moreover, not 1 See Broom's Com. ^th ed. 656; White- * Per Alderson, B.— BIyth v. Birmingham house c. Birmingham Can. Co. 27 L. J. Ex- Waterworks Co. 11 ExcU. 78-t. Laches has 25; Ba3'ley «. Wolverhampton Waterworks been defined to be "a neglect to do some- Co. 6 H. & N. 241; Duckworth v. Johnson, thing which by law a man is obliged to 4 H. & N. 653. do; " per Lord Ellenborough, C. J. — Sebag 23 §25.] NEGLIGENCE. [book I. being " absolute or intrinsic," but " always relative to some circumstances of time, place, or person." ^ ». Abithol, 4 M. & S. 462; adopted per Ab- bott, C. J., Turner v. Ilayden, 4 B. & C. 2. 1 Judgm., Degg v. Midland R. C. 1 H. & N. 781; approved in Potter v. Faulkner,! B. & S. 800. As to proof of negligence, Assop V. Yates, 2 H. & N. 768; Pevren V. Monmouthshire K. C. 11 C. B. 855; Vose V. Lancashire & Yorkshire R. C. 2 H. & N. 728; Harris v. Anderson, 14 C. B. N. S. 499; Reeve v. Palmer, 5 C. B. N. S. 84; Manchester, &c. R. C. app. FuUarton, resp. 14 C. B. N. S. 54; Roberta 24 V. Great Western R. C. 4 C B. N. S. 506; North «. Smith, 11 C. B. N. S. 572; Manley V. St. Helen's Canal & R. C. 2 H. & N. 840; Willoughby v. Horridge. 12 C. B. 742; Templeman v. Haydon, Ibid. 507; Melville V. Doidge, 6 C. B. 450; Grote v. Chester & Holyhead R. C 2 Exch. 251; Dansey v. Richardson, 3 E. & B. 144; Roberts v. Smith, 2 H. «& N. 21.3; Cashill v. Wright, 6 E. & B. 891; Holder v. Soulby, 8 C. B. N. S. 254. CHAPTER II. DIFFERENT KINDS OF NEGLIGENCE. Distinction between diligence of expert and that of non-expert, § 26. Roman law adopts this distinction under the terms cw^ja lata and culpa levis, § 27. Meaning of culpa lata, § 28. Culpa levis as antithesis of the diligentia of a diligens paterfainiUas, § 30. "Bonus paterfamilias" to be regarded as equivalent to "good business man," §31. Culpa levis is lack of the diligence of a good business man, specialist, or expert, § 32. Mommseri's qualification of the last given definitions, § 33. Difficulty in applying distinction attributa- ble to confusion in terminology, § 44. Distinction between culjya lata and culpa lens is substantial, § 45. Importance of word "accustomed" in test, §46. Probability of danger to be taken in view as determining not merely the grade but the existence of negligence, § 47. Degree of negligence imputed corresponds to degree of diligence exacted, with the qualification that the utmost degree of diligence exacted is that which a good business man is under the particular cir- cumstances accustomed to show, § 48. Culpa in concreto with its antithesis diligen- tia quam suis, or diligence exercised by an agent in his own affairs, § 54. Culpa levissima, § 57. The doctrine of culpa levissima is derived not from the corpus juris but from the scholastic mediaeval jurists, § 59. It is rejected by the present authoritative expositors of the Roman law, § 62. It is practically discarded by Anglo-Ameri- can courts, § 64. It is incompatible with a sound business jurisprudence, § 65. Classification of contracts in respect to grade of negligence, § 68. By Mommsen, § 68. By Hasse, § 69. § 26. Distinction hettveen diligence of expert and diligence of non-expert. — If the law impose in one case a degree of dili- gence higher than it impose in another case, then, in the first case, liability is attached to a lesser grade of negligence than in the second. That such a distinction exists between the expert and the non-expert is a necessity both of business and of jurispru- dence. A cottager who has a box left at his house by a passing trav- eller, and who does not in any way pretend to guard the goods so deposited, is only liable when by gross negligence, e. ^. by leaving the door open at night and the box exposed, the box is lost. On the other hand a common carrier, who undertakes for hire to carry the same box from point to point, but who neglects to pro- vide a suitable carriage, is liable in case of damage to the goods for the special negligence, which consists in his failure to exhibit the diligence which a good business man should exert in his par- 25 § 28.] NKGLIGENCE : [BOOK I. ticular line of business. So a person who is called upon, without any special qualification, to attend a sick man, is expected to ap- ply only such diligence as is usually bestowed in such cases by persons of ordinary common sense, and is liable only for a failure in such diligence ; while a physician claiming to be such is ex- pected to apply the diligence which an ordinary expert in his profession would under the circumstances pay, and is liable for a failure in such special diligence. A specialist or expert, therefore, is liable for special care ; a non-expert for ordinary care. And the distinction is not merely nominal. A defendant, for instance, is charged with lack of special care, i. e. such care as a profes- sional person is accustomed to give. He says, however, " I am not a specialist in this department ; I never claimed to be ; the plaintiff knew I was not." If this be true, the defendant cannot be held liable, unless it be proved that he exhibited in the case culpa lata, i. e. ignorance of that which every ordinary person knows.^ § 27. Roman laiu adopts this distinction under the terms culpa lata und culpa levis. — The distinction thus stated lies at the root of the well known division by the Roman law of culpa into culpa lata and culpa levis. § 28. Meaning of culpa lata. — By the Roman law, culpa lata, which, so far as our present inquiries extend, may therefore be viewed as corresponding to our gross negligence, is distinguished by the obviousness of the danger which it neglects to provide against, and of the means by which such danger is to be averted. With this corresponds the following definitions in the Digest : — " Lata culpa est nimia negligentia, id est, non intelligere quod omnes intelligunt." ^ " Sententiarum. Latae culpae finis est, non intelhgere id, quod omnes mtelligunt." ^ The policy of the law, it was argued, requires that every man should keep his eyes open, and should be acquainted with the facts of which ordinary obser- vation would advise him. If he does not do this, — if, on the other hand, he acts blindly, or inconsiderately, or recklessly, — if, in ex- ercising dominion over his own things he treats with insolent con- tempt the rights and interests of others, not taking time to think what injury to others may incidentally result, — if, in other words, his conduct is that of a homo deperditus et nimium securus,^ then 1 See fully infra, § 754, 780. 3 L. 223. eod. Paulus, lib. 2. 2 L. 213. § ult. D. de V. S. Ulpi- * l. 3 in f. D. de juris et facti anus, lib. 1. Regularum. ignor. 26 BOOK I.] CULPA LATA AND CULPA LEVIS. [§29. his ignorance, based on his nimia securitas, crassa summa negli- gentia-t is no defence. The rule in such case is cui facile est scire, ei detrimento esse debet ignorantia sua. He must recompense others for the injury done to them by his recklessly negligent acts.^ § 29. Culpa necessarily assumes a danger which can be averted by diligence and attention. The knowledge of the existence of such a danger does not necessarily involve malicious intent. Thus, for instance, the danger may be encountered as a sort of practical joke, as in cases elsewhere mentioned, where a drunken man is induced to continue to drink excessively,^ and where false alarms are mischievously given. By the Roman law,^ this lusus perni- ciosus is not dolus, but culpa lata. The same is held where the danger, from its very familiarity, ceases, though obsei'ved, to inter- est ; and where the defendant does not notice the danger, though it is at the time obvious to ordinary observers, or where, though no- ticing the danger, he does not notice such means of averting it as are in like manner obvious to ordinary observers. It will be at * " Les juriconsultes Remains," says Demangeat (Cours de Droit Romain, III. 446; Paris, 1866), " avaient fini par admettre que la faute lourde, la culpa lata, doit etre assimilde au dol, de sorte que le ddbiteur d^clard re- sponsable de son dol doit par Ik meme etre considdrd comme rdpondant dgal- ement de sa faute lourde : macjnam negligentiam, dit Gaius, placuit in doli crim'me cadere [L. 1, § 6, in fine, D. De ohiifj. et act. (44, 7)]. De meme, Celsus : quod Nervadiceret, latioukm CULPAM DOLUM ESSE, Proculo dispH- cehat ; viild verissimum videtur [L. 32 (au commencement), D., Depositi (16, 3)]. Mais que faut-il entendre prd- cisem^nt par cette faute lourde ? Cela signifie d'abord sans difficultd remis- sion des soins que prennent meme les hommes les moins attentifs : comme le dit Ulpien, lata culpa est nimia neyli- gentia, id est non intelligere quod omnes intelligunt [L. 213, § 2, D., De reg. jurJ], Supposez un homme qui, dd- biteur d'objets precieux, les aban- donne dans un en droit oil tout le monde peut venir les prendre. Nous dirons h. cet homme : ' Vous voudriez qu'ils fussent voids, vous ne feriez pas autrement.' Mais il faut aller plus loin : il faut dire qu'en principe un homme manque h la bonne foi et par consequent commet, sinon un dol, tout au moins une faute lourde, en n'ap- portant pas ^ I'exdcution de ses en- gagements le degrd de diligence qu'il a I'habitude d'apporter h. ses propres af- faires. Cela me parait conforme k la notion meme de la bonne foi. " Je conviens cependant que Celsus n'est pas tout h fait aussi affirmatif quand il dit : Si quis non ad eum modum quern hominum natura desiderat diligens est, nisi tamen ad suum modum curam in deposita prae stat, fraude non caret ; nee enim salrd fide minorem iis quam suit rebus ddigentiam praestabit [L. 32, D., £)<7)o.s///]. Le juriconsulte a choisi une hypothijse dans laquello dvidement la faute so confond avec le dol." 2 Wh. C. L. 7th ed. § 1002, 1012. 8 L. 50, § 4 de furtis. 27 § 31.] NEGLIGENCE : [BOOK I. once seen that while culpa lata in this view excludes malice, it includes not only that mental torpor which is indifferent to surrounding danger, but that absorption in extraordinary topics which leaves no faculties for the observation of the ordinary inci- dents of life, and that insolence of power which deals with its own interests without condescending to consider how its dealing may affect others. The ordinary and obvious line of distinction, how- ever, is that of expert and non-expert. Thus, to illustrate this again by the case of the cottager with whom a box is deposited by a traveller : every one knows that to leave a box at night in an open and unguarded room is to expose it to theft or damage ; hence this is gross negligence for the cottager to so leave the box. It does not require the special skill of a man trained to a partic- ular branch of business to know that a box is not to be so exposed ; hence the exposure of the box in this way implies gross or com- mon, as distinguished from slight or special negligence.^ Or, reverting to the case of an ordinary unprofessional nurse called in to assist a person taken suddenly sick, such nurse, we must agree, is not liable for special or slight negligence, i. e. the lack of diligence and skill belonging to a professed physician ; but is liable for gross negligence, i. e. the lack of diligence and skill belonging to ordinary unprofessional persons of common sense, such as omitting to watch, or to call in a substitute if obliged to suspend watching, in cases in which watching is required. But the physician is liable for culpa levis, if he either undertake the case without the ordinary qualifications of a physician under such circumstances, or manage it without the ordinary skill of such a physician.2 § 30. Cleaning of culpa levis. — Culpa levis., according to the Roman law, is therefore the culpa which exists when a person bound to a special duty neglects to enter upon and discharge it with the diligence belonging to a dilicfens, bonus., studiosus pater- familias, " qui sobrie et non si7ie exacta diligentia rem suam administrat.^^ § 31. " Bonus paterfamilias " to be regarded as equivalent to '■'■good business man." — But paterfamilias is not to be understood in the homely and sometimes ludicrous sense in which the term is now received. The Roman and the English paterfamilias differ widely. The English paterfamilias is a domestic father, who, 1 See infra, § 457. 2 gee infra, § 780. 28 BOOK I.] CULPA LATA AND CULPA LEVIS. [§ 32. when viewed in this sense, is chiefly occupied in serving his wife and children. The Roman paterfamilias was a man of high re- sponsibilities, the chief of a tribe, invested with almost unlimited authority over his children, no matter of what age, until they were emancipated ; wielding, therefore, possessions and preroga- tives the due management of which required peculiar sagacity, business tact, keenness of apprehension, and promptness in exec- utive action. Even in France, where the power attached to the paterfamilias is much higher than obtains with us, the term dili- gent pere de famille is viewed as indicating business as distin- guished from mere family excellence. Thus Lebrun, in his Ussai 8ur la prestation de fautes,^ reminds us, in construing this term, that the Roman 2^(it£rfamilias was eminently the man of af- fairs ; that the good paterfamilias was a good man of affairs, and hence that the term bonus et diligens paterfamilias is convertible with " conscientious and diligent business man," or " conscientious and diligent expert." To adopt Hasse's rendering, in reviewing Le- brun,2 " man sick unter einen diligens paterfamilias einen durchaus tuchtigen Matin zudenken haben, der ueber seine Angelegenheiten mit vollem Avfmerksamkeit und ganzem Fleisse zu ivachen geivohnt seiJ''' The diligentla, therefore, of a diligens, bonus, studiosus paterfamilias is not to be measured by what we might call the diligence of an ordinary English family man. It is rather, to adopt our own phraseology, the diligence shown by a good and trust- worthy business man when dealing with his particular duties. And the diligence that such a man shows in the discharge of his particular duties is the diligence which a business man is re- quired to show when he undertakes as a business to attend to the affairs of others. If he fails to do this, he is guilty of culpa levis, and is liable to make good the loss. § 32. Culpa levis is the lack of the diligence belonging to a good business man in his specialtg. — Hence, to adopt the exposition of Hasse,'^ whoever undertakes the practice of a particular art or business must not only possess but apply the skill necessary to the due practice of such particular art or business. If he does this, he does only what is his duty ; for no honest man under- takes, when duly informed, to do something which he knows he does not know how to do, or uses ordinary care in that which he knows requires extraordinary care. It is no defence to him in such 1 Paris, 1813, p. 2. 2 Hassc, p. 508. 8 p. 93. 29 § 33.] NEGLIGENCE : [BOOK I. a case that his negligence was not gross, that his culpa was not lata^ that the mischief that he failed to notice or remedy was not one which an ordinary observer would have noticed and remedied. The particular duty he has assumed requires from him a higher degree of diligence ; the diligence, not of an ordinary observer, but the diligentia diligentis paterfamilias ; the diligence of a good business man in his particular specialty. A man, for instance, who undertakes to mend a watch ought to be skilled in watch mending ; and the mere undertaking to do the work without the skill is culpa levis. He is absolved, it is true, if he possesses and applies the diligence of a skilful expert. . Culpa autem abest si omnia facta sunt, quae diligentissimus quisque observaturus fuisset. He is not liable simply because he does not rise to a height of mechanical genius, or apply an intensity of exertion unusual among experts in his particular branch. But he is required to possess the usual skill of such experts, and to diligently apply such usual skill. Consequently he is responsible not merely for culpa lata, i. e. for negligence in not doing what non-experts would do, but for cidp)a levis, i. e. for negligence in not doing what experts would do. From such persons the diligentia diligentis is required; and such persons, if they neglect to apply diligentia diligentis, are in this respect guilty of culpa levis. Hence culpa levis is the lack of the diligence belonging to a good specialist or expert in his particular work. § 33. Mommsen'' s qualification of the definition that cidpa lata is the lack of the diligence of a non-expert. — It is proper to state, however, that the conclusions just given have been in some respects contested by a contemporaneous German jurist, well known not only as thoroughly versed in the Roman law, but as a practical statesman.^ To understand culpa lata, so argues Mommsen, we must begin with the passages from the Digest already cited. The first is the definition of Ulpian: "Lata culpa est nimia negli- gentia, id est, non intelligere quod omnes intelligunt." ^ The second that of Paulus : " Latae culpae finis est, non intelligere id quod omnes intelligunt." ^ These passages, continues Momm- sen, do not purport, it is plain, to give a systematic definition of culpa lata. No one now would maintain that an error of the 1 Beitrage zum Obligations recht, 2 l. 213. § 2. D, (50. 16). von Friedrich Mommsen. Braunsch- ^ L. 223. pr. D. eodem. weig, 1855, III. 347. 30 BOOK I.] CULPA LATA AND CULPA LEVIS. [§ 35. character described in these passages is identical with cuIjm lata nor was this maintained by the jurists. What they meant to say was that negligence, in order to be culpa lata, must rest on negligence such as that here described ; or, in other words, that the negligence must be so marked as to be only explicable by the supposition of some such gross and obvious error. § 34. If we keep this in mind, the passages just cited, he insists, are of the greatest value in the definition of culpa lata, since they lead us to the true point of investigation, namely, the character of the principle which lies at the basis of culpa. He proceeds to direct his inquiries, first, to the subject matter of error ; and, secondly, the way error must operate in order to pro- duce culpa lata. As to the first point of inquiry, the extracts just given, he claims, give us no aid, since there is no distinction in this respect between culpa lata and culpa levis. But the subject mat- ter of error can readily be understood by a glance at the idea of dolus. Under dolus we understand an intention knowingly to violate the law. To this it is essential, first, that the effect intended invades another's rights ; and second, that the projected act or omission will produce such effect. In order that an illegal effect should be induced through culpa and not through dolus, it is necessary that the scienter in one of these two relations should fail. If the person doing or omitting, as the case may be, knows that his act or omission will lead to an illegal result, and knowing this, does not abstain from the act or omission, this in- volves an approval by him of the result ; while such an approval is excluded by the idea of error. Dolus and culpa can be only viewed in such a case as alternatively possible, when the offender views the illegal result only as a merely possible contingency. If in such a case the offender approves such result in advance, this is dolus (the so-called dolus eventualis) ; if, on the other hand, he does or omits to do the act under investigation in the hope that the illegal consequence will not be produced, this is culpa. We have, in the field of inquiry opened in this second case, the sub- ject matter of error, which is the first point of examination. § 35. The second point, Mommsen urges, concerns the mode in which error operates in cidpa lata. This makes it necessary to examine the points in which culpa lata differs from culpa levis. At the outset he claims that we are not here confined to 31 § 37.] NEGLIGENCE : [BOOK I. error as to notorious matters of fact. Obligatory relations are con- fined to specific persons, and the facts which are involved in such relations rarely bear the character of notoriety. We must therefore not attach the idea of notoriety to the words, non intelli(jere quod omnes intelligunt. There can, in fact, be no question that by these words is indicated an ignorance of those facts of which an ordinary person in the situation under examination would be cog- nizant, even though he would not be considered as attentive or careful. The word omnes is used in this sense in other passages of the jurists ; one of which will be presently adverted to. Where, however, are the limits of this error to be placed ? In answering this question we are led to the doctrine of Error, and especially to the division of Error into jjrobabilis and non ])robabUis. The authorities bring pointedly before us the connection between the last kind of error (non probabilis) and culpa lata. In other words, error non probabilis, or stolid or rash ignorance, is, under various phrases (supina ignorantia, negUgentia crassa, clissoluta ignorantia^, constantly treated as convertible with culpa lata?- § 36. Culpa lata and error non probabilis, he proceeds to argue, approximate still more closely when we view them in their prac- tical relations. The principle on which we practically determine inexcusable error is as follows : When the facts, ignorance as to which is to be investigated, are so open to the supposed offender that we cannot conceive him to be ignorant of them ex- cept through gross negligence, then it will be presumed that he was not thus ignorant. Thus in L. 14. § 10. D. de Aed. Ed. (21. 1) : "Si ... . talis morbus sit, qui omnibus (that is to say, by every one in the position of the seller, who like him saw the slave) potuit apparere ... ejus nomine non teneri (venditorem) Cae- cilius ait : perinde ac si nominatim morbus exceptus fuisset. Ad eos enim morbos vitiaque pertinere Edictum Aedilium probandum est, quae quis ignoravit vel ignorare potuit.^'' Hence ignorance which is the result of gross negligence is no defence, culpa lata in this respect being assimilated to dolus. At the same time it is essential to culpa lata that the ignorance should be uniformly gross. § 37. Following the above views, Mommsen holds that culpa lata may be said to exist when the offender either did not know 1 SeeL. 11. § 10. 11. D. (11. 1) ; Ed. (21. 1) ; L. 29. pr. D. mandati L. 6. D. (22. 6) ; L. 55. D. de Aed. (17. 1). 32 BOOK I.] DIFFERENT KINDS OF. [§ 38. that his act or omission would produce a particular illegal result, or that the particular result so produced was illegal ; supposing in both cases that his ignorance was based on an inexcusable error. It makes no difference whether the inexcusable error was as to only one of the above alternatives or as to both. Yet the phases of culpa lata, he adds, are not yet exhausted. In L. 223, D. de V. S. Paulus says : "Latae culpae fitiis est, non in- teUigere id, quod omnes intelligunt." We have here described the limits, not the specifications of culpa lata. We must therefore contemplate as within the range of culpa lata cases where the offender foresees the illegal result as a possible consequence of his conduct, and yet proceeds in his course, not, on the one side, approving of the illegal act, and yet, on the other side, risking it either through frivolous levity, or through indifference produced by undue familiarity with the subject matter. These cases are more serious than those previously mentioned, since they exhibit an un- conscientious disregard of the interests of others ; and consequent- ly they fall under the head of culpa lata. Negligence of this kind is called in one case in the Digest hisus jjerniciosus ; ^ and some- times we have attached to it the epithets luxuria and lascivia.^ § 38. In this aspect culpa lata, so holds this able jurist, is to be assumed wherever a person having charge of the interests of another so distinguishes them from his own as to lead us to infer that the first are subordinated to the second. It is true that it may be said that such postponement may take place without the inten- tion of injuring such other person's rights ; but whoever omits, as to another's affairs which he manages, the precautions he ex- hibits in his own, or manages another's business, because it is another's, more negligently than his own, betrays in this respect an unconscientious indifference to the duties he undertakes. Such being the limits of culpa lata, we can define it as that kind of culpa which rests on an unconscientious indifference to the inter- ests of others, or at least is of such a character that the charge of dolus can only be diverted by the plea of gross ignorance, — igno- rance which is itself inexcusable. The proof of the correctness of this definition may be found in part in the foregoing observations. Two points are to be added : First, the practical treatment of culpa lata can only be approximated by this process ; and secondly, 1 L. 50. § 4. D. (47. 2.) 2 L. 11. D. (47. 9) ; Gaius, III. § 202. § 11. I. (4. 1.) 3 33 §41.] negligence: [book I. that with this definition the particular cases of culpa lata given in the corpus juris fully harmonize. § 39. That culpa lata is assimilated in its effects to dolus^ appears, so Mommsen justly goes on to hold, by a number of passages ; and when dolus is spoken of generally, culjm lata is constantly included. In some cases culpa lata is expressly de- scribed as dolus} This, he declares, is to be explained by the fact that in many cases dolus is made the basis of a suit ; or the hin- dering of the fulfilment of an obligation is a release only so far as it was produced without the dolus of the debtor ; and hence the dolus was extended to embrace culpa lata, so as to enable cases of culpa lata to be brought within the scope of the edict. Again, the juxtaposition of culpa lata with dolus may be viewed as an application of the maxim, that inexcusable ignorance is equivalent to a scienter. As the scienter, as an internal fact, is hard to prove, a practical necessity prompts us to place cases of error which are without any excuse on the same footing with cases in which actual knowledge is proved. No doubt this was first done in particular instances, as the emergency required. From these the jurists rose to the recognition of the general principle, that inexcusable error is to be regarded as knowledge. The assimilating of culpa lata to dolus, however, was a step in this process of juridical devel- opment ; and this step was, as we learn, for some time contested.^ § 40. Hence, so argues Mommsen, if we should regard the whole domain of tort ( Verschuldunc/') as a field of whose surface dolus occupies one half and culjya the other half, cidpa lata must appear only as a narrow strip next to dolus, while culpa levis occu- pies by far the greater part of the area assigned to cidpa. It would conflict with this definition of cidpa lata if culpa lata and cidpa levis are to be regarded as two divisions of culpa of equal grade. This, Mommsen insists, is not the case, the common usage of the Romans being to treat culpa lata in the way just stated. This explains the fact that when they speak of dolus absolutely, culpa lata is included ; and when they place dolus and culpa in an- tithesis, or when they speak of ciUj^a in connection with dolus, they mean always culpa levis. § 41. Puchta, indeed, a deservedly high authority,^ maintains, as Mommsen admits, that culpa lata is the negligence of an or- 1 L. 32. D. (16. 3) ; L. 226. D. (50. ^ l. 32. D. (16. 3.) 16) ; L. I. § 2. D. (47. 4.) » Pandekten, § 266. 34 BOOK I.] DIFFERENT KINDS OF. [§ 42. diiiary man without special aptitude or experience in the business assigned to him : in other words, the negligence of a non-expert as distinguished from an expert. To this definition Mommsen ^ objects that it gives no fixed standard, and that it arbitrarily and unreasonably puts the non-expert, or the ordinary man, without sp^ial aptitudes or experience, in antithesis to the diligens pa- terfamilias. § 42. By the Roman jurists, so argues Mommsen, herein de- parting from the line marked out by Hasse, no peculiar mental requisites were needed by the diligens paterfamilias. Here, however, is the weak part of Mommsen's exposition. No doubt, to constitute the ordinary domestic piaterfamiUas, according to our present notions, no culture in any specific specialty is re- quired. But to the ideal Roman paterfajnilias it is essential, as has been already shown, that he should take up no business without being specially qualified for its performance. This posi- tion, adopted by all great modern expositors of the Roman law, Mommsen, when discussing the practical meaning of ^'- jyater- familias,^^ virtually admits. The Roman jurists, he concedes, ap- pealed in this respect to the usages and analogies of their own times, when they seized upon the diligens paterfamilias as the standard ; and we must do the same. We must take the principle the jurists presented rather than its symbol. The principle is that the amount of the skill, activity, and prudence, which is required of a person dealing with another's affairs, is not to be gauged by the personal capabilities of the defendant, but by the nature of the business itself and its surrounding incidents. When ndpa levis is spoken of as culpa in abstracto, this is not because the circum- stances of the particular concrete case are to be kept out of sight, but because the standard itself is objective, and is the same in all cases of a given character, and is not subjective, fluctuating with the individualitg of the person by whom the care is to be exercised. To illustrate this we must go back to the Roman symbol. A dili- gens paterfamilias permits himself to undertake no business en- gagement which he lias not capacity, experience, and skill enough to carry through. A diligens paterfamilias will not apply the same measure of exertion and prudence to everything he undertakes ; he will adjust his attention to the needs of each transaction. An absolute inflexible standard cannot here be applied ; on the con- 1 III. p. 35G. 35 § 44.] NEGLIGENCE : [BOOK I. trary, a dilif/ens paterfamilias, we must maintain, will exert in each particular case that measure of activity and care which are necessary in order, apart from extraordinary incalculable disturb- ances, to avoid damage and bring about the desired end. Hence while in each case the amount of care and activity varies with the circumstances, the standard is constant, that of the diligentia of the diligens paterfainilias. § 44. Difficidty in applying distinction attributable to the con- fusion of our terminology. — No doubt the discredit into which the supposed Roman classification has fallen among us is attribu- table not merely to the absurdity of the hypothesis of a cidpa levissima, — an hypothesis which we will soon see is rejected by the Roman standards, — but by our own capricious modes of translating culpa levis and culpa lata. Culpa levis is sometimes rendered in our books as slight, sometimes as light, sometimes as ordinary, sometimes, and more accurately, when we remember that it is the negation of the diligence of a specialist, as special negli- gence. But to culpa lata the most remarkable latitude of transla- tion has happened. Chancellor Kent comes near to the definition of Ulpian, when he declares that " gross neglect is the want of that care which every man of common sense, under the circum- stances, takes of his own property ; " ^ though he leaves out the important qualification of " solet," so justly emphasized by Momm- sen in a passage to be quoted. But, while by some eminent English judges lata is used as convertible with "gross," a term which, as is elsewhere seen, Lord Cranworth declares to be " vituperative," by others it is translated as " ordinary," while by Willes, J., " gross " negligence or culpa lata is declared to be the negligence of the expert ; leaving us to the conclusion that culpa levis is that negligence of the non-expert of which Ulpian declares that it consists, not in not seeing what only specialists see, but in not seeing what everybody sees. " Gross negligence," to quote Judge Willes's own words,^ " can only be said of a person who omits to use the skill he has, not of a person who is without ^ 2 Comm. 560. is manifest that no uniform meaning ^ Phillips V. Clark, 5 C. B. N. S. has been ascribed to those words, 884. In Austin v. The Manchester, which are more correctly used in de- &c. Railway Company, 16 Jur. 766, scribing the sort of negligence for Cresswell, J., said : " The term ' gross which a gratuitous bailee is held re- negligence ' is found in many of the sponsible, and have been somewhat cases reported on this subject, and it loosely used with reference to carriers 36 for hire." BOOK I.] DIFFERENT KINDS OF. [§45. skill." In effect that is what Cresswell, J., says in the case men- tioned,^ "and that is the civil law exposition of crassa negligentta., or lata culpa.'''' Extraordinary as is the definition here given of gross negligence, still more extraordinary is the mistake which led so painstaking a judge to declare that the definition given by him was that of the "civil" law.^ § 45. But distinction between culpa lata and culp>a levis, ^ Austin V. Man. R. R. Co. 16 Jur. that gross negligence is only ordinary- negligence with a vituperative epithet. 1 Sm. L. Ca. 196; Grill v. Gen'l Iron Screw Collier Co., L. R. 1 C. P. 612. The truth is, that however confused their language, the instinct of English lawyers has led them prac- tically to adopt the conclusion arrived at by the Roman law ; so that except 766. 2 " While adverting to these au- thorities," says Mr. Campbell, in his excellent treatise on negligence (Lon- don, 1871, § 11), "I must make this observation, that although both C. J. Holt and Sir W. Jones follow the Roman law in excepting mandate from the ordinary rule, by which in the case of common carriers (who responsibility correlates with benefit, have peculiar liabilities of their own the necessity for this exception has as will presently be seen), there is no not always been perceived by the Eng- lish lawyers who followed them. The result has been a curious ambiguity in their use of the term gross negligence. Imagining that, to make the gratuitous commissioner liable, a case of gross negligence must be established, they have applied the terms ' gross negli- gence,* ' crassa negligenda,' ' culpa distinction in law between the duty implied by mandate and that implied by work done for hire. Or if there be any difference it is merely this, that a jury may if they please, in acquitting from negligence, take into account the gratuitous nature of the service. (See cases commented on in Smith L. Ca. Vol. I. pp. 193-196.) I must while lata,' to mere want of the skill or care on this subject further observe, that promised. For instance, it has been having thi'ough the association of ideas held that a person employed on ac- above referred to imported the expres- count of the skill of a particular kind sion gross negligence into cases of or- whioh he professes is liable, although dinary contract, they then rationalized acting gratuitously, if he fail to ad- upon the words gross, &c., explaining hibit such skill as may reasonably be them to mean considerable or palpa- expected from his profession. In or- der to harmonize the case with the general rules of bailment, these law- yers thought it necessary to term such failure in skill gross negligence ; and this misuse of the term gross negli- gence has even been imported into cases of contract for mutual benefit, where there is not the shadow of an excuse for such language. This ab- surd and misleading use of words has given fair occasion for the remark. ble as opposed to slight or merely constructive negligence. I shall after- wards revert to this subject (§ 46, 54, 58, 60, 87, infra.) In the mean time note that, when we come upon the terms gross negligence, &c., in Ei)i;lish law, it must be marked whether they are used in the sense of culpa lata as employed by the Roman lawyers, or merely in the sense of considerable or jKilpable negligence." 37 §46.] NEGLIGENCE: [BOOK I. one of suhsttunce. — The importance of this distinction has been just seen. Even Mommsen, whose thoughtful criticism on the current authoritative doctrine of the Roman law has just been given, agrees that this distinction, under tlie terms of the Corpus Jurisy must be applied. We are to understand, he says, by a diligeyis paterfamilias, a man who is fully equal to the par- ticular duties he undertakes, and who devotes himself to the proper management, within its due orbit, of this business. Dili- gence such as this must be in any case shown so as to avert the charge of eiilpa levis. At the same time Mommsen agrees with Hasse that what is required is, as will presently be fully shown, neither rare talent, such as is only exceptionally found with pecul- iarly gifted men ; nor an abnormal exertion of power, such as involves a concentration of every energy continuously in a way that the human frame is capable of only under short intermittent periods of excitement ; nor that highly strung and intense cau- tiousness, of which some men in circumstances of danger may be sometimes capable, but which is inconsistent with firm and con- sistent business habits. But this diligence must be analogous to that which a diligens paterfamilias as a general rule exercises. It must, therefore, be the diligence of an expert when in the exer- cise of his specialty. And this question is one often of decisive importance. Is the defendant negligent in not bestowing in the particular case special care ? Is the attendant of a sick person, for instance, liable for the non-possession or the non-application of the sldll of a physician ? In such case the question of liability or non-liability depends upon (1) whether the defendant claimed to be an expert, and (2) what degree of skill and diligence such an expert is expected to possess and apply. Hence there are many cases in which it is the duty of the court to tell the jury that the defendant, not claiming to be an expert, is not liable for culpa levis (the negligence of an expert), but is liable for culpa lata (the negligence of a non-expert). So far, therefore, from the terras meaning the same thing, they represent an important dis- tinction, upon which the decision of a case frequently depends. § 46. Importance of word '■'•accustomed'''' in definition. — Be- cause a good business man sometimes blunders, it does not follow that the business man under trial is to be excused when he made the blunder complained of. The standard business man, whom this test appeals to, undoubtedly is occasionally careless. 38 BOOK I.] DIFFERENT KINDS OF. [§ 48. Such exceptional carelessness, however, is not to be considered as a test. The diligence is qualem diligens paterfamilias suis rebus adhibere solet. Solet is the criterion. Were it not so, the appeal to the diligens paterfamilias^ or the good business man, would be illusory. The answer would be, " The diligens paterfamilias" or "the good business man," "makes slips, and so do I ; conse- quently I am doing just what is done by your model." The whole life of the diligens paterfamilias^ however, with its occa- sional dejQections from its average standard, is not to be repro- duced. The test is, what is the usage of this diligens paterfa- milias? And in applying this test it is not lawful to take up as an example those exceptional cases in which a good business man lapses into negligence. He who takes charge of another's affairs must exercise without intermission the attention of a diligens liomo. He is permitted on no occasion to relax such attention. And it is one of the results of the constancy of assiduity thus re- quired from him that the standard of this assiduity is not raised to a pitch of intensity to which human capacity could not as a constancy attain. § 47. Prohability of danger to be taken in view as determining not merely the grade but the existence of negligence. — It has been seen that it is no defence in a suit for negligence that the de- fendant did not expect the particular injury complained of to occur.i We have now to notice that the same act may or may not be negligent as the probability of injury ensuing from it may be greater or less. Certain dangerous instrumentalities — e. g. steam — are essential to the welfare of society. It may be neg- ligent to expose complicated steam machinery in a thoroughfare when it would not be negligence to expose it in a house. So with regard to poison. An apothecary may without negligence expose poison on his counter when he could not without negligence expose it on the table of a hotel where he may be boarding. So a com- mon carrier is bound to exercise a higher degree of care as to the passengers inside his carriage, and the probabilities of whose dan- ger he is obliged to be constantly canvassing, than he is to per- sons who may happen to unexpectedly appear on his track.'^ § 48. Diligence required is proportionate to duty ; and degree of neglige7ice imputed corresponds to degree of diligence exacted; 1 Sec supra, § 16. dleton St. R. R. v. Shires, 18 Ohio 2 Sec infra, § 635, 872-4. Pen- St. 255. 39 §49.] NEGLIGENCE: [BOOK I. with the qualification, that the utmost degree of diligence exerted is that lohlch a good business man is mider the particular circum- stances accustomed to shoto. — The limitation last expressed (that the utmost degree of diligence exacted is that which a good busi- ness man is under the particular circumstances accustomed to show) will be presently fully sustained.^ At present we have to do simply with the position that between culpa lata, which approaches to dolus on the one side, and culpa levis, or the cidpa of a good business man when neglecting to bestow his special accomplishments on his specialty, there are as many gradations as there are gradations between things to be done and between the persons by whom such things are attempted. In other words, culpa may be thus divided : — Dolus. Culpa lata, or the negligence of a non- expert. Culpa levis, or the negligence of an ex- ! Culpa levissima, or pert (or of a good ^"fin'tesimal negli- business man in his gence. specialty). ' Now betweeen culpa lata and culpa levis the distinction may sometimes be shadowy. We may find it difficult to predicate of a particular case whether it is culpa lata or culpa levis, just because it may be hard to determine whether the defendant claimed or did not claim to be an expert ; and though there are many instances in which he is entitled to a verdict, should it appear that he did not claim to be an expert, simply because in such case he would be liable not for culpa levis but only for culjm lata which is un- proved, yet, should it appear that he claimed to be an expert, liability attaches to him whether culpa lata or culpa levis be proved. When, however, we come to the distinction between dolus and cidpa on the one side, and between culjja and cidpa levissima on the other side, then the line is one which is in all cases of decisive importance. On the one side, dolus and cidpa are not only morally and psychologically distinct states,^ but when followed by damnum, they are the subject, both by Roman and Anglo-American law, of distinct forms of action. On the other side, cidpa levissima is a fiction of the Schoolmen, which, as will presently be seen, is repudiated as much by the necessities of business as by the conclusions of philosophy. § 49. In inquiring, therefore, whether a particular case is culpa.^ 1 See infra, § 57. 2 See supra, § 6, 22. 40 BOOK I.] DIFFERENT KINDS OF. [§ 49. we are limited to the Roman division of culpa lata and culpa levis ; for if the case proves dolus on the one side, or merely culpa levissima on the other, then it is not culpa. But we must again remember that culjya levis does not prescribe an unelastic standard. Undoubtedly it appeals to " a good business man " as the model ; but this is not to "a good business man " in the abstract, but to " a good business man " in his particular specialty/, as he is accus- tomed to act in circumstances such as the present. Hence, while the idea of diligence in culpa levis is constant, the phase and tone of such diligence vary, just as much as one specialty dif- fers from another, or the emergencies of one case differ from the emergencies of another case. It is in this sense that we are to understand the following excellent remarks of Judge Bradley, in a case decided by tlie supreme court of the United States in December, 1873 : " We have already adverted to the tendency of judicial opinion adverse to the distinction between gross and ordinary negligence. Strictly speaking, these expressions are in- dicative rather of the degree of care and diligence which is due from a party, and which he fails to perform, than of the amount of inattention, carelessness, or stupidity which he exhibits. If very little care is due from him, and he fails to bestow that little, it is called gross negligence. If very great care is due, and he fails to come up to the mark required, it is called slight negli- gence. And if ordinary care is due, such as a prudent man would exercise in his own affairs, failure to bestow that amount of care is called ordinary negligence. In each case, the negligence, what- ever epithet we give it, is failure to bestow the care and skill which the situation demands ; and hence it is more strictly accu- rate perhaps to call it simply ' negligence.' And this seems to be the tendency of modern authorities.^ If they mean more than this, and seek to abolish the distinction of degrees of care, skill, and diligence required in the performance of various duties, and the fulfdment of various contracts, we tliink they go too far ; since the requirement of different degrees of care in different situations is too firmly settled and fixed in the law to be ignored or changed." ^ 1 1 Smith's Lead. Cases, 6th Amer. 11 M. &W. 115 ; Real v. South Devon ed., — note to Co71 ; Wyld v. Tick- C. P. 600 ; 14 How. 486 ; 16 How. 474. ford, 8 M. & W. 443 ; Hiiiton v. Dib- = Xew York Cent. R. R. i-. Lock- bin, 2 Q. B. 661; Wilson v. Brett, wood, 17 Wallace, 357. 41 §50.] negligence: [book i. Many judicial utteninces to the same effect will be found in the following pages. That we should concur in rejecting the fiction of culpa levissima is a duty which, as has just been stated, and will presently be fully shown, we owe as much to the necessi- ties of business, as to the claims of philosophical jurisprudence. That we should concede that culpa levis, or the negligence of the specialist, varies with the nature of the specialty and the intensity of the duty, is what both reason and authority demand. But it is a departure as much from the principles of common sense as from those of the Roman jurisprudence to hold either that a non- specialist is to be liable for not having the skill of a specialist, or that a specialist is only required to exhibit the skill of a non- specialist.^ § 50. While test (^diligence of an expert as distinguished from non-expert') is constant, its application varies with agent and sub- ject matter. — In fact, if we analyze negligence (excluding, as in the above diagram, dolus on the one side and culpa levissima on the other), we will find that it involves two factors, each of which may be viewed in almost an infinite number of gradations. First, there is the person acting. The distinction between expert and non- expert has been already set forth ; and it is a distinction which the standards emphatically prescribe, but at the same time present in 1 See Todd v. Old Col. R. R. 7 Al- than he would be as to adults in full len, 207 ; Goodale v. AVorcester Ag. possession of their faculties. Schies- Soc. 102 Mass. 401 ; Toledo, W. & W. hold v. N. B. & M. R. R. 40 Cal. 447. R. R. V. Baddely, 54 111. 20. "The See Robinson v. Cone, 22 Vt. 213 measure of care," said Chapman, C. Daley v. N. & AV. R. R. 26 Conn. 561 J., in 1871 (Gray v. Harris, 107 Mass. Rauch v. Lloyd, 31 Penn. St. 370 492), " required in such cases must infra, § 306-7. So the engineer of a be that which a discreet person would locomotive is obliged to exercise dili- use if the whole were his own." This gence, as will hereafter be seen, in pro- is substantially true in all cases of portion to the critical and hazardous culpa lata. But in culpa levis, i. e. character of the agency he wields. So, when a business man undertakes as as will be seen when we discuss the such to do a particular business, the topic of Deposituni, the care to be standard is, " the care which a good bestowed on an object is to be grad- business man in this specially is in such uated by its value. So also, as will circumstances accustomed to show." appear in our examination of the doc- This care, of course, varies with the trine, sic utere tuo ut nan alienum emergency. Thus, for instance, the laedas, diligence in our relations to driver of a horse-car is bound to be othersis to be determined by the nature more careful when he observes chil- of the injury they are likely to receive dren and infirm persons in his way from our negligence. Infra, § 785. 42 BOOK I.] • DIFFERENT KINDS OF. [§ 51. several varying aspects. Thus, for a person to undertake, without the necessary qualifications, a business requiring skill is in itself a culpa. Hence a surgeon who undertakes an operation for which he has not the proper qualifications is liable for tlie damage his unskilfulness works ; ^ and so when a person undertaking to drive another to a particular spot has no aptitude to drive, or when he who undertakes to make up cloth into a coat spoils the cloth from his incapacity .2 Indeed, the maxim is of universal application in all cases where the defendant claims to be an expert : " imperitia culpae adnumeratur." ^ The reason of this is that it is negligence for a person to undertake a duty for which he is incompetent : " cum affectare quis non debeat, in quo vel intelligit, vel intel- ligere debet, infirmitatem suam alii periculosam futuram." ^ He who thus intrudes when incompetent is not a diligems paterfa- 7nilias. At the same time we must not lose sight of the qualifi- cation already noticed, that there is nothing extraordinary or abnormal required to constitute the diligentia of a diligens pater- familias. Hence if the actor brings to the undertaking adequate skill, and bestows on it a degree of care such as is usual in undertakings of a similar character, he is exonerated from the consequences of a disaster which could only have been averted by the exertion of a degree of vigilance and skill unusual among competent experts in this particular department. Yet at the same time the question whether the requisite degree of skill is possessed depends not merely upon the party's own particular degree of cultivation, but upon the relation borne by that cultivation (as will be more fully illustrated when we come to consider negligence by physicians) to the age and place in which he lives. Here, then, on the question of competency alone we see how numerous are the constituents, the change of any one of which may change the complexion of the whole case. § 51. So, also, independently of the question of diligentia quam suis, to be presently discussed, we may readily conceive of cases in which the peculiar cliaracteristics of a mandatory or agent may enter into and modify the character of the duties with which he 1 Infvii, § 730. (9. 2) ; L. ». § 5. L. 13. § 5. D. looat. 2 To these points Monimsen cites (10. 2.) § 7. I. (Ic leg. Aquil. (4, 3) ; L. 6. § 7. a L. 132. D. de R. J. (.'.0. 17) ; L. D. (le off. prae. (1.18); L. 7. § 8. L. 0. § 5. D. (19. 2); § 7. I. dc leg. 8. § 1. L. 27. § 29. D. ad leg. Aquil. Aquil. (4. 8.) ■» L. 8. § 1. D. (9. 2.) 43 § 52.] NEGLIGKNCE : [BOOK I. is charged. It is true that there are certain broad and uniform duties which belong to specific obligations, and which all persons undertaking such obligations must perform. Yet there may be distinctive and peculiar obligations imposed upon an individual by virtue of his own particular and notorious qualifications. If, for instance, I employ a distinguished artist to paint a picture for me, and offer him a price corresponding to his abilities, I can de- mand more care and skill from him than from one who is without experience or capacity. According to Hasse,i I have a right to demand from the artist the degree of care which a dilige^is pater- fcmiilias^ if endowed with the artist's abilities, would bestow. But Mommsen, not without reason, modifies this by saying that the diligence I can claim is that which is required by the circum- stances of the concrete case. Luca Giordana, whom he appeals to as an illustration, was a Neapolitan painter of the seven- teenth century, endowed with extraordinary talents, but of such rapidity of execution that his works were not equal to his capac- ity. If he was commissioned to produce a particular picture, the person employing him, knowing his peculiarities, could not expect that Giordana would exhibit in the picture the skill that would be exhibited by a diligens paterfamilias with Giordana's talents. All that could be expected would be that Giordana would apply in the picture thus ordered the skill displayed by him in his other pictures. The test is not, so argues Mommsen, the skill employed by the artist when painting for himself ; but the skill which he usually employed when working for others. To a certain extent this must be conceded. If I employ a successful painter who claims to be an expert in water-colors, he must show the diligence of such an expert ; it will not be enough if he is accomplished as a painter in oils. If I employ a distin- guished equity pleader, he must show himself an expert in the particular branch with which his reputation associates him. If I employ an oculist in large practice, he must show himself an expert in his specialty. But I cannot claim that either artist or practi- tioner should devote to me his whole time. Independently of other considerations, this would be incompatible with the very largeness of practice on which distinction is based. § 52. So is it scarcely necessary to repeat at this point that there are branches of business in which, to avert danger, an ex- ^ Hasse, p. 145. 44 BOOK I.] DIFFERENT KINDS OF. [§ 53. traorclinary degree of activity and of watchfulness is required. Here, however, the termini ah'eady given are maintained. The transportation of glass, for instance, will have bestowed on it by the diligens pate7'familias, or good business man, greater care than he bestows on the carriage of stone. So also there are par- ticular lines of business which require, as Mommsen well argues, at certain given periods, the absorption of the whole attention and energy of the party employed. Here the same test may be con- tinued. A diligens paterfaonilias, or good business man, will not undertake such a service without the proper qualifications, and without knowing that when the emergency comes which requires his undivided attention to be given to the particular duty, he can for the time disembarrass himself from his other engagements so as to concentrate himself on this. Here, also, we must keep in mind that if the defendant brings into play the qualifications and capacity for concentration iisual among prudent workmen in his department, he will not be liable if a casualty occurs which could only have been avoided by the display of a degree of energy and watchfulness beyond that which by such prudent workmen is usually applied. And the same view applies to the use of valua- ble improvements possible, as yet unaccepted in practical life. Thus, it is negligence in a carrier to omit to furnish for his vehi- cles and machinery for the transportation of goods any improve- ment known to practical men, and which has actually been put into practical use ; but a failure to take every possible precaution which the highest scientific skill might suggest, or to adopt an un- tried machine or mode of construction, is not of itself negligence. ^ § 53. Hence, viewing the question in relation to the thing to be done, in order to avert the charge of aulj^a levis, the amount of care bestowed must be equal to the emergency. It may be that only a small degree of exertion and caution is required, according to the usage of prudent workmen in the particular department ; and it may be, so argues Mommsen, that the business is one which excludes, from its very nature, the idea of culpa levis, and requires only such attention, the withholding of which is culpa lata. Thus he who cuts down a tree is required, if a road is under the tree, to take such precautions as will warn persons travelling the road of the danger. The omission of such precau- tions is regarded as a culpa ; and the person thus m^gligent is 1 Steinwc. 5? 2. D. cominodati fully hereafter, § 515-lG. (15. r.) ; I'lU'lita Institiit.'i., III. L'TH. 47 § 58.] NEGLIGENCE : [BOOK I. laedes, diliffentia quam suis is never the test ; and it is to be ap- plied to obligations, as will be hereafter shown, only exception- ally, as an evidential qualification, for the purpose of determining intent. § 50. At the same time, in the definition of culpa in concreto^ with its antithesis of diligentia qualem suis rebus adhibere solet, the word solet, as Mommsen^ remarks, is peculiarly to be kept in mind. It is not enough, therefore, in order to defeat the charge of culpa in conereto, that the defendant can be shown to have been in a single instance as negligent in his own affairs as he was in the agency which he is charged with negligence in conducting. As in culpa levis the continuous, not the exceptional, conduct of a dlli- gens paterfamilias is the standard, so here have we to inquire whether the negligence in question is what the agent showed in his own affairs continuously as distinguished from exceptionally. Hence must we conclude that culp)a in concreto is essentially coin- cident with culpa levis when the party charged acts in the partic- ular business as a diligens paterfamilias. Hence we may further infer that a particular action or omission will not be sufficient to relieve the party charged from the liability of c^dpa in concreto. If the party charged had formerly in his own affairs exhibited a similar neglect and thereby had suffered injury, this very injury may have been the reason why after this he began in his own affairs to show greater care. Hence, to clear the agent on the charge of culpa in co7icreto, it is not enough to show a similar act of negligence by him in his own affairs, but he must show that such acts of negligence were common with him, or that his general mode of conducting his business was the same as that with which he conducted his trust. § 57. Culpa levissima, or the omission to ward off every pos- sible casualty, which is the antithesis of diligentia exactissimi, or the most exact diligence, is a grade of negligence much insisted on by the scholastic jurists, as well as by several eminent com- mentators of modern times. In discussing this question, a ques- tion which affects the whole doctrine of negligence, I propose to show : — § 58. (1) That the doctrine of a third grade of culpa, called culpa levissima, is taken by Lord Holt and Sir W. Jones, not from the classical Roman law, which was the law of business Rome, 1 Beitrage zum Obligationenrecht, III. 374. 48 BOOK I.] " CULPA LEVISSIMA." [§ 59. but from the scholastic jurists, who dealt with the question, as belonging rather to speculative than to regulative jurisprudence. (2) That by present authoritative expositors of the Roman law it is rejected. (3) That while it lingers still in Anglo-American text-books, it is practically dropped by Anglo-American courts. (4) That it is incompatible with the necessities of business jurisprudence. (5) That the classification in the two degrees, culpa lata (gross negligence) and culjya levis (slight or special negligence), is sufficiently exact for all philosophical purposes, and sufficiently flexible for the purposes of practical jurisprudence. § 59. That the doctrine of a third grade of culpa, called culpa levissima, zvas taken hy Lord Holt and Sir William Jones, not from the classical Roman law, tvhich was the law of business Home, but from the scholastic jurists, who dealt with the question as belonging rather to speculative than to regulative jurisprudence. — The Justinian Digest, as is well known, is a compilation of the legal opinions of thirty-nine jurists, the earliest of whom, Q. Mucins Scaevola, was a contemporary of Cicero ; the latest of whom died two hundred years before the Digest was compiled. The jurists thus quoted form, therefore, a chain of high juridi- cal intellects who, during an era of four hundred years, were moulded by and in their turn moulded the commercial and social activity of Rome. The relations which they were called upon to determine were of unparalleled extension and complexity. Rome, during this period of four centuries, was mistress of the world, and the busi- ness of the world had to be directed by her courts. Her genius was eminently administrative ; and the powers of intellect which she applied to the determination of the multitudinous practical issues which it became necessary for her to settle, were at least equal to those which she lavished so exuberantly in the depart- ments of oratory, of history, and of poetry. Nor, as the dates which have just been given show, was the development of tliis high juridical activity limited in the sense in which our modern jurisprudences are limited. Our Anglo-American jurisprudence, in its commercial side, cannot be said to be over two hundred years old : and during these two hundred years it has been occu- pied as much in the adoption of new doctrines, as in the logical 4 49 § 59.] NEGLIGENCE : [BOOK I. application of old. Distinctive German jurisprudence, now so elaborate and authoritative, is scarcely one hundred years old ; dis- tinctive French jurisprudence not much older. But the Roman jurists, whose opinions the Digest collects, began to write when Roman jurisprudence had assumed a settled shape ; and when it was virtually an induction, definite though still unsystematized, of the business regulations of an empire whose genius was admin- istration, whose mode of expression at once the most stately, the most impressive, and the most exact, and whose field was all civil- ization. Hence these great jurists, who, for four hundred years were occupied in defining and applying these settled business rules, wrote not speculatively but regulatively. Their genius was neces- sarily practical. They did not deal with men as an ideal, as we mil presently more fully see ; and this fact is worthy of pecul- iar weight in the discussions in which we are about to engage. They recognized — they were forced by experience to recognize — the truth, that no abstract speculative refinements could be im- posed as rules of business action. Hence, dealing with business as it actually arose, they dealt with it in the concrete, laying down only such general maxims as the experience of the past and pres- ent told them would be of value in the determination of business issues in the future. If we seek in the Digest for a series of all embracing principles, each logically subdivided with the exactness and delicacy with which, on a blank piece of paper, straight lines may be made to radiate from a given centre, then we will seek in vain. As Dr. Johnson once said, you may walk in a straight line on a desert, but you cannot walk in a straight line on Cheapside. Speculative engineering runs its railroads over valleys, under mountains, and through wilds ; practical engineering makes such deflections and curves as are called for by the peculiarities of the face of nature, and the demands of population. To illustrate this by turning to the point immediately before us, speculative jurisprudence divides negligence (^culpa) into a series of grades ; and it declares that in certain cases it exacts a diligentia diligen- tissimi or diligentia exactissimi^ — a standard as we will presently see, which is impracticable and absurd. The practical jurispru- dence of the classical jurists, however, dealing with men as they really are, and with business as it actually arises, rejected these excessive refinements. Of the diligentia diligentissinii or perfect diligence, with its antithesis of culpa levissima or infinitesimal 50 BOOK I.] " CULPA LEVISSIMA." [§ 59. negligence, the Digest, viewing the terms as categorical, knows nothing. The words diligentia diligentissimi and culjja levissima undoubtedly appear a few times in the Corpus Juris. They do not, however, express distinct grades of diligentia and of culpa. They are used, on the contrary, simply to designate such partic- ular intensities of business duty as require that such business duty should, in the special case, be perfoi'med with particular care. The jurists do not say, " There is such a thing as perfect diligence to be exacted, and infinitesimal negligence to be punished;" for they know that no business transaction is conducted with per- fect diligence and without infinitesimal negligence ; and hence that to exact perfect diligence and punish infinitesimal negligence in any particular enterprise would be to prevent such enterprise from being undertaken. Hence they content themselves with a simple, obvious, easily applicable, and yet at the same time necessary distinction. Is a transaction one of business, or not of business ? If of business, then the person undertaking it is bound to display the business diligence of a good business man, Avhen ex- ercising his particular business ; diligentia diligentis ; diligentia quam diligens patej'familias in suis rebus praestare solct.,^ a dili- gence analogous to that which a vigilant head of a household ex- ercises in his domestic affairs. If the transaction be not of busi- ness ; if, as in the illustration already given of a depositum, a thing is simply left with another person, with no obligation ex- acted or confidence specially imposed, as to its safe keeping ; then the diligence required is simply that which is exercised by a person without business qualifications, — a person, therefore, who only sees and guards against perils such as persons not ex- perts in the particular business see and guard against, and hence the bailee or praestator in such case is only liable for nimia neg- ligentia, i. e. non intelligere quod omnes intelligunt. To negli- gence or culpa of the first class was assigned the term culpa levis, — slight or special negligence. To negligence or culpa of the second class was assigned the term culpa lata^ — gross or ordi- nary negligence. When, however, cases of culpa came to be adjudicated, there were occasions in which, either in aggravation or excuse, the question, as has been seen,^ might be invoked wlu-ther the praestator^ or party called upon to make good his conduct, ^ As to meaning oi paterfamilias see supra, § 31. ^ Supra, § 54, 61 GO.] NEGLIGENCE [book I. showed in the particular transaction investigated the diligence he showed in his own affairs, — diligentia quam suis rebus adhibere soletj or diligentia quam suis. Hence culpa, in the law of business Rome, as exhibited in the Corpus Juris, may be thus tabulated : — WJiat diligence is exacted : I. In business transactions, diligentia diligentis, or diligence of a good business man, exercising a dili- gence in bis particular business analogous to tbat wliich a vigi- lant head of a family exercises in his domestic affairs. II. In transactions not of a business character; common and ordinary care, such as a person not pro- fessing the particular specialty is likely to exercise. Correlative negligence i I. Business negligence, culpa lata, slight or special negligence ; the lack of such diligence as a good business man in the particular transaction investigated, such transaction relating to his busi- ness, would show in such business. II. Lata culpa; gross or ordinary negligence, the neglecting of the ordinary care that is taken by persons not such experts ; non intelUgere quod omnes intelUgunt. As evidential phases of both of these kinds of negligence, but not forming a distinct class, comes in the diligentia quam suis rebus adhibere solet; the diligentia quam suis which has been already noticed.^ § 60. Causes of adoption of a more speculative and unreal classification. — Such is the classification made by the business jurists of Rome, when at her prime.'^ The last of these jurists, as has been mentioned, died nearly two centuries before the for- mation of the Justinian compilation, and they ceased to speak, therefore, as Rome began to decline. In the dark ages, juris- prudence as well as business, was asleep ; and jurisprudence was ^ See supra, § 54. 2 " These older professors of Roman jurisprudence," says Hallam (Middle Ages, Vol. 11. ch. 9, pt. 2), speaking of the scholastic jurists, " are infected, as we are told, with the faults and ignorance of their time ; failing in the exposition of ancient laics through in- correctness of manuscripts and want of subsidiary learning, or perverting their sense through the verbal subtleties of scholastic philosophy But the Code of Justinian, stripped of its im- purer alloy, and of the tedious glosses of its commentators, will form the 62 basis of other systems, and mingling, as we may hope, with the new institu- tions of philosophic legislators, con- tinue to influence the social relations of mankind long after its direct au- thority shall be abrogated. The ruins of ancient Rome supplied the mate- rials of a new city ; and the fragments of her law, which have been already wrought into the recent codes of France and Prussia, will probably, under other names, guide far distant generations by the sagacity of Modes- tinus and Ulpian." BOOK I.] " CULPA LEVISSIMA." [§ 60. the first to awake. It assumed, however, at its awakening, a speculative rather than a regulative type ; for in fact, like other sciences at that era, not having the subject matter of reality on which to work, it was forced to occupy itself with the purely ideal. The jurists of this revival took, indeed, the CorpuB Juris as their basis, but for the Corpus Juris their treatises soon became substitutes. For the Corpus Juris is an immense work ; and of this the Digest, consisting of extracts, by no means systematically classified, of opinions of the great business jurists on cases stated, constitutes three fourths. The Digest, as now reproduced in Mommsen's magnificent edition, contains twice as much material as do the Revised Statutes of New York. Of the Revised Statutes of New York, however, there are innumerable copies, and each copy has an adequate index. Of the Digest there were very few copies, even in the fourteenth century ; and indeed it was for a long time an accepted fact that until the discovery by Lothar II. in 1136, of the Florentine Manuscript, the work in its completeness was lost. Of the works of the jurists which are condensed in the Jus- tinian Digest only two survive : the first is the Sententiae of Julius Paulus, which, however, is only an epitome, and which shared the long oblivion of the Digest ; the second is the Insti- tutiones of Gains, which was discovered, in 1816, by Niebuhr, in a monastery at Verona, covered by writings of St. Jerome. ^ It is 1 " The original work of Gaius," want of something to write on, some- says Professor Hadley (Lectures, p. thing abundant, easily procured, and 71), " was until recently supposed to inexpensive, such as the later world have shared in the general wreck has learned to manufacture from its which has overtaken the body of liter- rags. If the ancients had possessed ature to which it belonged. But about paper like ours, they would hardly fifly years ago it was discovered under have failed to invent printing, which, circumstances so remarkable as to indeed, as it was, they narrowly missed deserve a somewhat particular state- doing. Parchment — the best mate- ment. rial which they had — was never abun- " The manuscript which contains it dant, and of course always costly, is of the class called palimpsest or Hence it was a very common practice, rescript — pallmpsext, i. e. 'rubbed especially with the monkish scrilx's of again,' ' scraped again,' so as to efface the early Midtlle Ages, to write on the text first written on them, and parchment that had been written on make clear space (carte blanche) for a before. If the owner cared little for new text ; or rescript, i. e. ' written the old text, or if he had it in some over again ' with a new text after other copy, he would wipe it out with the first had been cancelled. a sponge, often scraping the surface to " The old world suffered sorely for make the obliteration more complete, 63 §60.] " CULPA LEVISSIMA [book I. shown abundantly by Guterbock, in his treatise on Bracton,^ that by Bracton, whose diligence and intelligence cannot be disputed, the Corpus Juris was only known through the scholastic exposi- tions. The jurists of business Rome were no longer read. Their and would then write the new text in its place. Rescripts have been found in which parts of the Bible have thus been blotted out to make way for scholastic divinity or monkish legends. " In many cases the old letters are still traceable under the new ; in oth- ers they can be made traceable by ap- plying a solution of nutgalls, or some other chemical re-agent, to freshen up the ink with which they were written. By such processes a good deal that is valuable has been read out, since the beginning of this century, from pa- limpsest manuscripts, especially by Cardinal Mai, the late keeper of the Vatican Library. But the recovered Institutes of Gaius is perhaps worth all the rest put together. The dis- covery was made by the historian Niebuhr. In 1816 he was sent by the Prussian Government as minister to Rome, in order to pursue there the researches necessary for his Roman history. On the way he stopped at sev- eral cities to examine palimpsest manu- scripts preserved in their libraries. " Among the rest he looked into the Chapter Library at Verona, spend- ing parts of two days in the place ; and there he discovered a palimpsest of considerable extent, which a hasty ex- amination showed him to contain in its original text the work of some Roman jurist. Savigny, to whom he wrote an account of his discovery, rec- ognized the work as being the lost In- stitutes of Gaius. " The Prussian Government being called upon for aid, sent immediately to Verona two men, one eminent as a jurist, the other distinguished for his knowledge of manuscripts, who spent several months in deciphering the text, and made out nearly everything which diligence and skill could accom- plish. The task was difficult through- out, and in some parts utterly desper- ate. About a quarter of the parch- ment had twice gone through the process of obliteration and rewriting, so that the clearly legible text was the third which had been written upon it. " It should seem that some old monk, wishing to copy certain works of St. Jerome, cast his eyes upon this parchment of Gaius, and thought it well fitted for his purpose. A book of law, and especially obsolete law, would not be of much value in his eyes. " Having erased the old text by rubbing and scraping, he began to copy his St. Jerome, but, for some reason unknown to us, gave up his work when he had used only a quarter of the writing material thus obtained. The parchment must have fallen after- ward into the hands of some other per- son, perhaps a brother of the same convent, who also wished to make a copy of St. Jerome, but was not satis- fied with the beginnings of his prede- ^ Guterbock, Henricus de Bracton und sein Verhaltniss Zum Romischen Rechte, 1862. Of this work a trans- lation, with valuable notes, was pub- lished in Philadelphia, in 1866, under the title, Bracton, and his Relations to 54 the Roman Law, &c. by Carl Giiter- bock, translated by Brinton Coxe. See also Savigny, Geschichte des Romischen Rechts im Mittelalter, IV. In the second edition, p. 580, will be found an essay by Wenck on Glan- viile and Bracton. BOOK I.] A SCHOLASTIC FICTION. [§60. place was assumed by scholastic as a reality but as an ideal. cesser. He therefore erased what the latter had written, and used the whole, or nearly the whole, parchment for his own manuscript. In these processes the leaves were arranged without ref- erence to the original order, but only three leaves were wholly lost. When these are added to the parts which, after all use of glasses, re-agents, and guessing, were found entirely unde- cipherable, it appears that about a tenth part of the original work is gone. " The nine tenths that remain have thrown great light on the condition of the Roman law in its best period, and have given a new impulse to the study of its history. " It is a noticeable fact that the let- ters of the recovered text show by their forms that they must have been written before the time of Justinian. It may be doubted indeed whether the work was ever copied after Justinian's legislation had given it a new form, and made the old one obsolete and invalid." The history of the Roman law of Delicts is thus skilfully traced by De- mangeat (Cours de Droit Romain, III. 411; Paris, 1866) : — " La loi des douze Tables avait at- tachd certaines peines au d6\it d'in- jures. Poena injuriarum ex lege xii. Tabularum, dit Gaius, propter mem- brum quidem ruptum talio erat ; propter OS verb fractum aid collisum, trecen- torum assium poena erat constituta, et videbantur litis temporibus in magna paupertate satis idoneae uitae pecuniariae poenae esse. Comment. III. § 223. Comp. Inst. § 7 (1*'' alinea) De injur. Suivant Paul (Sent. V. IV. § 6), la loi des douze Tables statuait de fa- mosis carminibus, meinbr'as ruptis et os- sibus fraclis. jurists who dealt with society not " Du temps de Gaius, k la place de ce systfeme des douze Tables, on sui- vait un systeme dtabli par le Prdteur. Paul dit, en parlant de se second sys- tfeme, qu'il a dtd introduit more ou moribus (eod. loc. § 6 et 7.) " Le Pr^teur permet k la personne injuride d'estimer elle-meme I'injure : le juge a un pouvoir discr^tionnaire pour condamner soit au montant de I'estimation ainsi faite, soit k une somme moindre. Mais, le Prdteur ayant coutume d'estimer I'injure atroce, lorsqu'il fixe pour quelle somme sera fait le vadimonium [Le vadimonium est la promesse faite par le d^fendeur de se reprdsenter certo die. Voy. Gaius, IV. § 184, et suiv.], la m6me somme est indiqude dans la formule, et le juge, bien qu'il puisse condamner k une somme moindre, n'ose habituellement pas user de ce pouvoir, propter ipsius Praetoris auc- toritatcm (7). Gaius, III. § 224, Comp. Inst. § 7 (2* alinda) De injur. II faut surtout remarquer dans ce sys- tfeme le pouvoir discrdtionnaire laissd au juge. L'apprdciation personnelle joue ici le plus grand role. On pent supposcr deux juges dgalement intdgres egalement dclairds : saisis de la niAme actio injuriarum, il est k pen prds certain qu'ils n'arriveront pas au meme chiiYre de condamnation. " Dans le droit de Justinien, le sys- tfeme dtabli par les Prdteurs est encore en usage, in judiciis frequentalur, L'aestimatio injurine ddpcnd de la qualitd et de I'honnAtetd de la per- sonne. Siigit-il meme dc rinjurc faite a un esclavi', une certaine gradation doit etre obscrvde par le juge eu dgard k la condition tie cet esclave. Inst. § 7 (3* alinda) De injur. " Inddpendammcnt de Taction d'in- jures rdglementde par le Prdteur, la 65 §61.] " CULPA LEVISSIMA : [book I. § 61. Speculations of particular scholastic jurists. — Of these jurists, the earliest, so far as concerns the question immediately qu'une injure ayant 6t4 addressee k un fils de famille, le coupable peut etre condamne plus severement en tant qu'il a injurid le fils, moins sevfere- ment en tant qu'il a injurie le pfere, si, par exemple, le fils dtait revetu de quelqiie dignity. L. 30. § 1 et L. 31. D. De injur. " 4° Enfin nous savons que, du temps de Gaius, c'dtait habituelle- nient le Preteur lui-merae qui estimait loi Cornelia en avait introduit une autre en favour de celui qui prdtend avoir ete pouss^ ou frapp^ ou qui pre- tend qu'on est entrd de force chez lui. Inst. § 8, De injur. En vertu de cette loi Cornelia, on peut agir soit civiliter, soit criminalifer. Marcien, L. 37. § 1. D. De injur. II importe de savoir si I'injure est ou n'est pas atroee. L'atrocitd de I'injure peut rdsulter ex facto, ex loco ou ex per- sona. Ex facto : la personne a etd blessde ou frappde de verges. Ex loco: la personne a 4t4 injuride au theatre ou sur la place publique ou en presence du Prdteur. Ex personk : c'est un magistrat qui a etd injuria ou bien I'injure a 6t6 faite a un s^nateur par un homme de basse condition, h un ascendant ou h, un patron par son descendant ou par son affranchi. Jus- tinien ajoute que I'atrocite de I'injure peut encore rdsulter de la place oil I'on est frappd, veluti si in oculo quis percusserit : I'injure alors est atroee, sans distinguer si elle a et6 faite h un paterfamilias ou a un filiusfamilias. Gaius, in. § 225 ; Inst. § 9. De injur. Quel intdret pratique y at-il k savoir si I'injure est ou n'est pas atroee ? L'intdret existe sous plusieurs rap- ports : "lo Comme nous I'avons vu, I'in- jure addressee a un esclave n'est cens^ atteindre le maitre qu'autant qu'elle est atroee. Ci-dessus, p. 410. " 2" L'action injuriam ne peut etre intentde par un affranchi contre son patron, par un enfant sui juris contre son ascendant, qu'autant que I'af- franchi ou I'enfant se plaint d'avoir re9u une injure atroee. Ulpien, L. 7. § 2 et 3. D. De injur. " 3° La condanination est plus forte quand I'injure est atroee. Par appli- cation de cette idee, nous voyons 56 I'injure atroee. Ci-dessus, p. 411. L'action injuriarum n'est pas donnde seulement contre I'auteur de I'injure, contre celui qui percussit. " Elle est donnee dgalement contre I'instigateur du delit, contre celui qui dolo fecit vet curavit ut cui mala pugno percuteretur. Inst. § 11. De injur. Le delit d'injures a ceci de particulier que, pour qu'il existe, il ne suffit pas de la mauvaise intention d'un homme, intention meme rdalis^ pardes actes: " II n'y a delit qu'autant que I'in- jure est ressentie par celui h qui elle s'addresse. C'est ce qu'on exprime en disant que Faction d'injures dissim- ulatione aboletur. La personne ne se sentant pas offensde, il ne peut naitre a son profit aucune action d'injures. Ide.b, dit Justinien, si quis injuriam dereliquerit, hoc est, slatim passus ad animum suum non revocaverit, posted, ex poenitentid, remissam injuriam non poterit recolere. Inst. § 1 2. £)e injur. " De meme qu'il n'y a point ddlit si des le principe la personne injuride a d^aignd I'injure, de meme le ddlit est completement effacd si la personne qui d'abord s'etait emue de I'offense I'a ensuite pardonnee. Aussi l'action injuriarum est elle eteinte ipso jure par un simple pacte. Par suite de la meme idee, l'action ne peut etre in- tentee que dans I'annee, et elle s'eva- BOOK I.] SCHOLASTIC ORIGIN OF. [§61. before us, was Accursius (1182-1260), whose Apparatus Authen- ticorum was published hi Lyons in 1589, and was constantly appealed to, as Holtzendorff tells us, in the courts as then reor- ganized ; and whose speculations therefore were received as un- doubted law by magistrates to whom the examination of the Corpus Juris would have been impracticable. By Accursius, culpa latissima and dolus were made convertible ; and culpa, outside of dolus, was divided into the three grades of culpa lata, culpa levis, and culpa levissima. But with this poverty of analysis subse- quent theorists were not contented. " Corasius," we are told by Wening Ingenheim,^ added to culpa lata, levis and levissima, a levior ; and Sebast. Medices announced six grades, culpa lata itself, theretofore intact, being subjected to subdivision." Faber (1280-1340), who is cited as authoritative by both Pothier and Sir W. Jones, and who fell back on the three grades, is declared by Sir W. Jones " to have discovered no error in the common nouit par la mort de celui qui pouvait criminelle et Taction civile : on ne I'intenter. " Une autre particularite de Taction injuriam, c'est qu'elle peut quelquefois etre exercee par un fils de famille. II y avait dans TEdit du Preteur une disposition ainsi con^ue : Si ei qui in aUerius potestate erit injuria facia esse dicetur, et neque is cujus in potestate est praesens erit, neque procurator quis- quam existat qui eo nomine agat, causa cognitd ipsi qui injuriam accepisse dice- tur judicium dabo. L. 17. § 10. D. De injur. Dans les, §§ suivants, Ulpien commente cette disposition de Tedit. " Lorsqu'un fils de famille a ete in- jurie s'il devient ensuite sui juris & lui seal desormais peut appartenir Texer- eice de Taction injuriam. Ulpien, L. 17. § 22. D. De injur. Enfin, lors- peut pas exercer Tune et Tautre. " Cela s'explique, parceque le but poursuivi est toujours le meme : ut vin- dicetur, non ut damnum sarciatur. Voy. Paul, L. 6, et Ulpien, L. 7. § 1. D. De injur. Lorsque c'est Taction crim- inelle qui est intentee, elle n'aboutit pas necessairement k une simple con- damnation pecuniare, mais officio ju- dicis extraordinaria poena reo irrogatur. Pour les details, Voy. le Titre, deja cite, des Sentences de Paul (V, IV). " En general, dans une action crim- inelle on doit coniparaitre en per- sonne ; et specialement, pour la ma- tifere qui nous occupe, Paul disait autrefois : Injuriam non nisi praesentes accusare possunt. Sent. Tit. cit. § 12. Mais une Constitution de Zcnon, rap- qu'un fils de famille a re(;u Tune des pelee par Justinien, decide que les trois injures prevues par la loi Corne- lia, lui seul, non son pbre, peut in- tenter Taction civile de cette loi. Ulpien, L. 5. § 6, D. De injur. " Tout delit d'injures permet d'agir Boit criminaliter, soit cioiliter. Inst. § 10 (ler alinea) De injur. Seulc- ment, ici il faut choisir cntre Taction viri illuslres et ceux qui sont encore au-dessus d'eux peuvent nienie par procureur poursuivre Taction crimi- nelle d'injures ou y defeiidre. Inst. § 10 (2" alijiea), De injur." 1 Die Lehre vom Schadensersatzo, Heidelberg, 1841, p. 104. 67 §61.] " CULPA LEVISSIMA : " [BOOK I. interpretation ; " though by eminent German critics it is asserted that while Faber limited himself to three grades, these were very different as to definition from those of Accursius. Zasius (1461- 1535), Duarenus (1509-1559), and Vinnius (1588-1657), whom both Sir W. Jones and Pothier invoke, accepted, on the authority of their predecessors, the triple subdivision, though with much fluctuation of definition; while Coccejus (1644-1719), receiving the triple division as established, added as a distinct head that of culpa in concreto, or culpa in respect to diligentia quam suis, which has been already noticed.^ It is true that Donellus (1527-1591), with a far keener insight of the Corpus, declared that he could find no classical authority for the third grade of culpis levissima, and argued that the institution of such a test was incompatible with the resuscitation of commercial activity. But Donellus had but few followers ; and, indeed, the then uncertainty of the text of the Digest, and the high authority which in that age scholastic jurisprudence had obtained, interposed almost insuperable diffi- culties in the way of a revision of the accepted opinion. Hence we can understand why Pothier (1699-1722), whose intellectual subtlety found so much with which to sympathize in the refine- ments of the scholastic jurists, declares, after citing them, that the triple division of culpa is the doctrine commune de tous les interpretes sur le prestation de la faute : and at the close of his reply to Le Brun, who struggled to revive Donellus's doctrine,^ adds : " Telle avait ete jusqu-a present la doctrine unaniment tenue par tous les interpretes des lois Romaines, et par les auteurs de traites de droit." And we can also understand how Sir W. Jones (1746-1794), misled by Pothier, should state : ^ " I cannot learn whether M. Le Brun ever published a reply, hut I am inclined to believe that his system has gained but little ground in France, and that the old interpretation continues universally * Salicetus, in his gloss to L. 32. D. truth than deference, remarks : " Man depos. gives levis, levior, and levissi- sollte denken, dass diese. Scholas- mus : " Nam inter superlativum et pos- tische Aberwitz nunmehr von unsern itivum est medium necessarium, scili- Lehrstiihlen, wie aus unsern Schrif- cet comparativus." He admits, how- ten, ganzlich verbannt sei." ever, that the law does not sustain ^ J^ggai sur la prestation de fautes, him in this: " Tamen de- ista culpa &c. par Le Brun, avec une disserta- media, quam leviorem appellamus, non tion due C^lebre Pothier, Paris, 1813. curaverunt legislatores specialiter dis- » Bailments, p. 31. ponere." Upon this Hasse, with more 58 BOOK L] NO LONGER ACCEPTED. [§62. admitted on the Continent both hy theorists and practicers." Re- lying on Sir W. Jones, this judgment has been adopted as conclusive by a series of subsequent eminent Anglo-American expositors, including Judge Story. § 62. 2. By the present authoritative expositors of the Roman Law the doctrine of a triple division of culpa (culpa lata, culpa levis, culpa levissima) is rejected. — Of France it is enough to say that in the present French Code culpa levissima finds no recognition. The only form of diligence known in the Code (art. 1137), as dis- tinguished from the ordinary diligence of a common and inexperi- enced agent, is the diligence of a hon pere de famille ; which, as expounded by Le Brun, is a diligence in a particular business analogous to that which is exhibited by a prudent and intelligent head of a family in the management of his household.^ ^ Demangeat adds the following valuable comments (Cours de Droit Romain, III. 450 ; Paris, 1866) : — "Le systfeme qui vient d'etre rapid- ement exposd est, au fond, le systeme de M. Hasse. D'te Kulpa des roem. Rechts. Kiel, 1845, 2* Edition, par M. de Bethmann Hollweg, 1838. " Anciennement, on suivait un autre systfeme, encore reproduit par Pothier, mais dejk critique par Lebrun. [Voici k cet egard, ce que dit Pothier lui- meme : ' Dans les differents trait^s que j'ai donnes des differentes contrats et quasi-contrats, j'ai suivi la doctrine commune de tous les interpretes sur la prestation de la faute qui a lieu dans chaque contrat, par rapport i la chose qui en fait I'objet C'est la doctrine des Accurse, des Alciat, des Cujas, des Duaren, des d'Avezan, des Vinnius, Heineccius ; et ceux mfemcs qui se sont lo plus appliques k combattre les opinions commune- ment revues et ck proposer des nou- veaut(5s, telsqu'Antoine Faber, ne s'en sont jamais dcartds. Neanmoins il a parce, en 1764, une dissertation sur la prestation des fautes, dans laquelle M. Lebrun, avocat au Parienient de Paris, combat cette doctrine Cet auteur soutient que la doctrine que nous avons expos^e est une pure invention des interpretes, qui n'ont pas pris le vdritable sens de lois Quelque specieux que soient les argu- ments par lesquel il prdtend dtablir son systfeme, je n'ai pas dtd con- vaincu.'] .... " D'aprfes ce systfeme, il y a trois sortes de fautes : la culpa lata, la culpa levis, la culpa levissima. La culpa lata, c'est Ji dire la ndgligence trfes- grossifere, est la seule dont reponde le ddbiteur qui rend un service purement gratuit, tel que le depositaire. La culpa levis est I'omission des soins que prennent en general les bons pferes de famille: les debiteurs qui repondent et de la culpa lata, et de la culpa levis sont ceux qui sont tenus en vertu d'un contrat intevresse de part et d'autre, comrae la vente ou le louage. Enfm la culpa levissima est une faute que commettent mcme des liommes soig- neux, A laquelle dchappcnt seulement les hommes d'une diligence extraordi- naire : c'est I'omission de soins telle- mcnt niinatieux que trbs-peu de per- sonnos les prennent. On rend respon- sable mC'me de cette culpa lerissirna le debiteur qui re(^oit dans le contrat ua 69 §63.] " CULPA LEVISSIMA : [book I, § 03. Germany requires more specific attention, for it is in Germany that the first conclusive vindication of the right doc- service purement gratuit, tel que le commodataire. En favour de ce sys- tfeine des trois fautes, on invoquait surtout les textes suivants : la L. 5, § 2, in fine, D. Commod. oil il est dit que, le contrat etant uniquement dans I'interet du commodataire, verior est Quinti Muc'd sententia, existiviantix et culpam praestandam et diligentiam ; — la L. 18 pr. du meme Titre, ou Gaius decide que le commodataire doit ap- porter la meme diligence qualem quisque d'd'ujenlissimus paterfamilias suis rebus adhibet, ita ut tantum eos casus non praestet quihus resisti non possit. II est h remarquer que Gaius, comme Ulpien, compte expressement parmi les cas fortuits qu'on ne peut jamais imputer k faute les fugae ser- vorum qui custodiri non solent. Enfin la L. 1, § 4, D. De obligat. et act. on nous voyons que le commodataire ex- commodataire devrait etre exactis- sima ; or, d'aprfes les Institutes, exactam diligentiam custndiendae rei praestare jubetur. § 2. Quib'. mod. re contrat. oblig. (III. 14.) D'ailleurs, nous avons des textes formels qui met- tent sur la meme ligne le vendeur et le commodataire, le cas oil le contrat est dans I'intdret des deux parties et le cas oil il est seulement dans I'in- teret de la partie dont il s'agit de determiner la responsabilite. Voici d'abord ce que dit Paul : Custodiam venditor talem praestare debet quam praestant hi quibus res cominodata est, ut diligentiam praestat exactiorem quam in suis rebus adhiberet. L. 3. D. De peric. et comm. rei vend. (18. 6.) Et voici maintenant comment s'exprime Ulpien : Si cui inspiciendum dedi, sive ipsius causa sive utriusque, et dolum et cidpam mihi praestandam esse dice, actissimam diligentiam custodien, — dae propter utilitatem, periculum non. Si rei praestare compellitur. " Ces textes ne sont point probants. En effet, dans la L. 5, § 2, in fine Commod., quand le juriconsulte, aprfes avoir dit et culpam praestandam, ajoute et diligentiam, c'est simplement pour exprimer que la faute du commoda- taire doit etre apprdcide in ahstracto. Et, dans les deux autres textes, si on emploie le superlatif, il ne faut y attacher aucune importance : car nous avons la preuve qu'en cette matifere on se sert indiSeremment du positif ou du superlatif. Ainsi, d'aprfes le sys- tfeme des trois fautes, le locataire repondrait de la culpa levis, non de la culpa levissima ; or, d'apr^s les Insti- tutes, ab eo custodia talis desideratur qualem diligentissimus paterfamilias suis rebus adhibit. § 5. De local, conduct. (III. 24.) " Reciproqueraent, d'aprbs le sys- tfeme des trois fautes, la diligence du 60 verb mei duntaxat causa datum est, dolum solum, prope depositum hoc acce- dit. L. 17. § 2. D. De praescr. verb. (19. 5.) "Je suppose un debiteur qui, en vertu du contrat, n'est tenu que du dol et de la faute lourde : c'est par exemple, un depositaire. La chose venant a perir par suite de sa culpa le- vis in committendo, ne devons-nous pas dire que, s'il ne peut point etre pour- suivi par Taction depositi directa, il peut de moins I'etre par Taction de la loi Aquilia ? M. Hasse admet Taffirm- ative, et sa manifere de voir est assez generalement suivie. En effet, il est difficile de comprendre que, parce qu'un homme s'est oblige envers le proprietaire, il ne sera pas tenu d'une faute dont ce proprietaire pourrait demander compte au premier venu. Je suis neanmoins dispose a faire une distinction. J'admets parfaitement la BOOK I.] NO LONGER ACCEPTED. [§ 63. trine was published, and the tiaie sense of the Corpus Juris, by the aid of those processes of historical exegesis which began with the present century, was first brought to light. The first of this line of commentators was Thibaut (1772-1840), an eminent professor first at Jena, and then at Heidelberg, known in Anglo- American literature by the passages quoted from him in the incomparable lectures of Mr. Austin, and by the expressions of af- fectionate reverence and admiration with which Mr. Austin speaks of him. Thibaut, who may be regarded as reviving, though with some just modifications, the theory of Donellus, was followed by von Lohr, in his Theorie der culpa, and by Schomann in his Lehre vom Schadenersatze. According to these authors (I condense here the summary given of their writings by Wening Ingenheim, not having access to the original works), while the distinction be- tween negligence in commission and negligence in omission was brought sharply out, the notion of a culpa levissima was declared to be without authority in the Corpus 'Juris and in right reason. The most conclusive vindication, however, of this position is to be found in the treatise of Hasse on the Culpa des Romischen Rechts^ of which the first edition was published in 1815, and the second, revised by Bethmann-Hollweg, well known as one of the most prominent jurists and statesmen of his day, in 1838. Of this work, whose exegesis of the Corpus Juris is now accepted in Ger- many as uncontrovertible,^ and which Lord Mackenzie, in a passage hereafter to be quoted, declares to have " the merit of possibilite d'exercer Taction de la loi applicable comnie elle le serait en Aquilia lorsque le fait qui amfene la pareil cas k toute autre personne. II perte de la chose ne s'explique point ne doit plus en etre de m6me lorsque par le contrat intervenu, lorsque ce le fait qui anifene la perte de la chose fait est etranger a la qualite de depos- se rattache ^ mon obligation de depoa- itaire. itairc. Ainsi, quand je demenage, il "Par exemple, on m'a remis h titre faut bien que j'eini)orte avec nies de depot une caisse contenant un propres nieiibles la chose deposee: si objet precieux et fragile ; pour le faire par suite d'une faute Idgere, nienie in admirer h quelqu'un, j'ouvre la caisse, committendo, cette chose perit dans le je retire I'objet, mais malheureuse- voyage, je ne dois pas en etre tenu. ment je le laisse toinber et il se brise : Comp. M. de Vangerow, t. III. § 6, il y a eu Ik de ma part un acte que ma 1, p. 612, et suiv. qualite de dopositaire n'exj)li(pic' pas : ^ See IIoltzendorfTs Encyc. tit. je ne suis pas tenu conuue depositaire, Culpa ; Monuusi-n's lieitriige zum Ob- car je ne suis coupable ni de dol ni de ligationrecht, lid. III. faute lourde ; mais la loi Atpiilia m'est 61 § 64.] " CULPA LEVISSIMA : " [BOOK I. having established the true Roman theory, and of having forever extinguished the system of the three degrees of fault," copious extracts will hereafter be given. It is enough now to say that by all subsequent commentators of the Digest the idea of culpa levissima is declared to be without basis in the authoritative jurists, and to be a mere figment of scholasticism. The only ques- tion as to which there is any doubt is as to whether the diligentia quam suis^ or diligence exercised by a man in his own affairs, is to be viewed as a distinct form of diligence, or as simply an evi- dential phase of the two great forms of diligence (ordinary or non- expert diligence, and extraordinary or expert diligence), which find their root in the necessities of business life. § 64. 3. Wfiile the hypothesis of a culpa levissima still lingers in Anglo-American text books, it is practically discarded by Anglo- American courts. — It is true that in expressing our distinctive Anglo-American doctrine of the implied insurance of goods by common carriers (the only material point as to bailments in which we differ from the Roman law), the term culpa levisshna is some- times used as indicating the liability of the carrier. But the insuring element in common carrying is utterly different from the diligentia diligentissimi of the Schoolmen. In the first place, the diligentia diligentissimi is applied by the Schoolmen to all obli- gations ; the insuring doctrine is applied by us only to common carriers, and to these only as to the carriage of goods. In the second place, the lack of the diligentia diligentissimi is by the Schoolmen a culpa; culpa levissima, but culpa still. That such is not our view is shown by the fact that while we hold that a carrier can make no limitation of his duty which will remit the consequences of culpa, we have constantly declared that he can by agreement relieve himself from insurance. Outside of the relations of the common carrier to goods, which, as has been seen, have no bearing on this particular issue, though the term culpa levissima sometimes appears in our reports, yet this is done inartificially, as indicating only an intense phase of the culpa levis, or negligence of expert, and is to be regarded simply as announcing the truth that in affairs of extreme diffi- culty and responsibility an expert is to use extreme care.^ On ^ An exception to the statement in aware), 392, where the court, following the text is to be found in Culbreth v. the old terminology, ruled that dili- Phil., W. & B. R. R. 3 Houston (Del- gence was capable of three degrees : 62 BOOK I.] NO LONGER ACCEPTED. [§ 64. the other hand, the notion that, as a matter of law, there are three distinct grades of dihgence, with three correlative grades of negligence, has been frequently repudiated. Several illus- trations of this have been already noticed. Among the most sig- nificant, however, is the following from an eminent jurist, who for a time occupied a seat on the supreme federal bench : " The theory that there are three degrees of negligence, described by the terms slight, ordinary, and gross, has been introduced into the common 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 distinguish them. Their signification necessarily varies according to circumstances, to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation." ^ Other expressions in the same opinion indicate that by this high authority the negligences of the expert and of the non-expert were recognized as distinguish- able as separate grades, which, though running into each other at their common boundary, nevertheless have generally distinct dif- ferentia. But this is not so with culpa levissima^ on which as a subtlety of pure scholastic jurisprudence, the condemnation just cited distinctively falls. That it is condemned in practice by our courts will be hereafter abundantly seen when we treat concretely of the diligence of experts whether in law, medicine, engineering, or special lines of industry. It vnW be then seen that in no case is diligentia diligentissimi, or diligence beyond the range of or- dinary capacity, required, but that the test substantially is uni- First, the diligence required of the of a prudent business man (bonus et common carrier as to goods, which is prudens paterfamilias), and is respon- the highest species of diligence, and sible only for ordinary negligence, which makes the carrier the insurer Tliirdly, the diligence required of of the goods, and hence responsible the mere gratuitous deposiUiry, such for the slightest negligence, culpa le- as is the railway company who ware- vuisima. Secondly, the diligence re- houses goods without hire, in which quired in ordinary bailments, when case the company is liable only for the bailee (e. g. as is the case of the gross negligence. Culbreth v. Phil., common carrier after the goods are Wil. & B. K. 11. 3 Houston, 3!)2. stored by him for hire in his ware- ^ Curtis, J., in Steamboat New house) is bound to show the diligence World v. King, 16 How. U. S. 4C9. 6;^ §64.] " CULPA LEVISSIMA. [book I. form, tliat the diligence required is that which a good and faithful business man in the particular specialty is accustomed to apply in a transaction such as that under investigation, ^ ^ See particularly infra, § 631, 635, 872. Thus the fact that a mare ordi- narily gentle is in the habit of kick- ing when in heat, does not make it obligatory on the owner to restrain her at other times ; and his failure to do so, though it may be culpa levissima, does not make him liable for her kicking when not in heat. Tapper i'. Clark, 43 Vt. 200. In an excellent note by Mr. Green to the last (1874) edition of Story on Agency, § 183, we have the follow- ing:— " The word culpa nearly coincides in meaning with the English law tei-m negligence. It was formerly thought that three degrees of culpa or negli- gence were recognized by the Roman law. These were, the culpa lata, the culpa levis, and the culpa levissima : gross netilitrence, nesrligence, and slight negligence. Lord Holt brought this theory into the English law, by his opinion in Coggs v. Bernard, 2 Ld. Raym. 909. In his essay upon Bail- ments, Sir William Jones adopted it from Pothier, and from the case of Coggs V. Bernard, and brought it into great prominence. Mr. Justice Story also gave his countenance to the theory. " Hugo Donellus, in the latter part of the sixteenth century, proved that there was no culpa levissima as a dis- tinct degree. The works of Donellus were for a long time neglected ; but since the beginning of the present century they have acquired a great reputation, especially in Germany, where their author is by many re- garded as the greatest of the jurists. In 1764, Lebrun, an advocate of the Parliament of Paris, published an essay in which he maintained that 64 his threefold division had no real foundation in the Roman law, but was a pure invention of the commen- tators. See Jones on Bailments, p. 26, et seq. Thibaut and Lohr, dis- tinguished German professors of law, also repudiated this division. But the work of Hasse (Die Culpa des Romischen Rechts), published in 1815, seems to have caused the doc- trine of the three degrees to be gen- erally regarded as an exploded theory of the past. The Prussian law codi- fied in the last century, in conformity to the theory then in vogue, defines three degrees of negligence ; but this division is not found in the Austrian, the French, or the Dutch Code, these codes having been formed since the ojiposite view gained the ascendency. " The doctrine of three degrees fails in reconciling those texts of the Roman law, to which, if correct, it should be applicable. The terms lata, lalior ; levis, levior, levissima; diligens, diligentissimus ; exacta, ex- aclissima ; where they occur in the Corpus Juris, are now considered simply as variations of style, used without a thought of the distinctions which the commentators endeavored to found upon them. " According to the now estab- lished opinion, the Roman law in most cases required of a person the conduct of a prudent man — diUgentia diligentis patris familias (the care of a prudent person who is sui juris^. In a few cases, as, for instance, in suits between partners, the defendant might show in defence that he conducted the partnership affairs with as much care as he used about his own ; it being his partner's loss if he chose to enter into that relation with a careless man. BOOK I.] ABSURDITY OF. [§65. § 65. 4. The hypothesis of a culpa levissima is incompatible with a sound business jurisprudence. — Where is the diligentissi- Goudsmit, Pandects, § 76 ; Ortolan, invention of the commentators, con- Explication Historique des Instituts, trary to equity. Already in the six- L. 3, p. 353 ; Demangeat, Droit teenth century, Doneau had declared Romain, t. 2, p. 444 ; Lagrange, that the Roman law adinitteil only Manuel de Droit Romain, p. 468, n. two degrees of fault; but his system, 2 ; Maynz, Droit Romain, t. 2, § which was defective in other respects, 259. — G." found few partisans. Lebrun, an ad- We may therefore regard our own vocate before the Parliament of Paris, law as following the Roman in its true broached the same doctrine; but his sense, as that law is expressed in the essay, published in 1 764, besides be- following admirable passage by Lord ing superficial, abounded with seri- Mackenzie: — " In considering the doctrine of re- sponsibility for fault or neglect arising imder the different contracts, a con- troversy has arisen among civilians which merits notice here. Until lately, the theory generally received — and adopted, among others, by Sir Wil- liam Jones, in his Essay on Bail- ments — was, that the Roman law distinguished three degrees of fault, culpa lata, levis, levkmna ; and the rules of responsibility were deter- mined in the following manner: In contracts beneficial only to the owner, as mandate or deposit, good faith alone being required in the custodier, he was only held liable for culpa lata. ous errors, and was disapproved ot by Pothier. To M. Hasse, who pub- lished a dissertation on this subject in 1815, is ascribed the merit of having established the true Roman theory, and of having forever extinguished the system of the three degrees of fault. The substance of his argu- ment is shortly given by Maynz, in his Elements of Roman Law. It is said the term culpa levissima occurs only once in the Corpus Ju- ris, in a fragment of Ulpian, and in that passage it has no technical signification ; in particular, it is not opposed to culpa lata or culpa levis. As culpa levis imports the want of care of a good father of a family, — or gross neglect. Next, where the that is, of a man essentially attentive benefit was reciprocal to the two par- and careful, — culpa lecissima must ties, as in sale, hiring, or partnership, mean the want of still greater care ; they were both held liable for culpa but the Roman law nowhere rc(juires levis, — that' is, for the care of a good a higher degree of diligence than that father of a family, so as to be respon- of a man essentially careful and at- sible for ordinary neglect. And, tentive ; and the original texts never finally, where all the advantage was mention anything but culpa levis, when reaped by one of the parties, as in it is intended to indi(;afe an inter- commodate, the slightest fault, culpa mediate degree between an inevita- levissimn, was held to subject him in a ble casualty and culpa lata, so that claim for indeniuification. However no place is left for culpa Irvissima. plausible this theory may appear, it is Finally, it is said that the theory of now rejected by the most eminent three degrees of fault is unjust in it- continental jurists, who maintain that self, as well as contrary to the funda- it is not supported by the original mental principles of the Roman law, texts of the Roman law, and is a pure which distinguishes only between two 6 65 § 65.] " CULPA LEVISSIMA : " [BOOK I. mus or exaetissimus to be found who is to be taken as the stand- ard by which the diligentia diligentissimi, with its antithesis of culpa levissima, are to be gauged ? This question is put by Le Brun, without any reply made by his astute antagonists ; and it is repeated by Hasse, with the confident assertion that the search is one that will be made in vain. Is Csesar, asks Hasse, taking up one of the stock illustrations of the Schoolmen, the type of a diligentissimus ? But waiving the obvious comment made by Hasse, that there are but few Caesars, and that these few are not likely to undertake ordinary bailments, still even Caesar, — with all his intense sensibility, during a crisis, to impending dangers, his incomparable fertility in expedients, and his almost preternat- ural coolness, promptness, and intrepidity in applying the right remedy at the right moment to the right thing, — even Caesar, when the crisis was over, sometimes yielded to a negligentia which was not merely levis but lata. No one more diligent than Caesar can, it must be admitted, be found. But it is absurd to apply the diligence of Caesar to the ordinary bailee. First, the ordinary bailee has not the genius of Caesar ; has not and cannot have the exquisite sensibility and prescience — the eyes behind as well as before, the intense activity — of the great captain. Sec- ondly, even with these unparalleled gifts Caesar was often unques- tionably negligent. Magnus Apollo dormitat. And Caesar, if tried by a scholastic court, according to scholastic refinements, could rarely have escaped the liabilities imposed on culpa levissima.^ cases, — that in which we derive no He died for an error of judgment, an benefit from the contract, and that in error such as the greatest commanders which we derive benefit from it ; that — Frederick, Napoleon, Wellington in the first we are generally liable only — have often committed, and have for gross neglect, while in the second often acknowledged. Such errors are we are liable for the care of a good not proper objects of punishment, for father of a family." ^ this reason, that the punishing of such ^ Lord Macaulay struck this point errors tends, not to prevent them, but when speaking, in his first article on to produce them Queens, it Lord Chatham, of the execution of has often been said, run far greater Admiral Byng. " We think the pun- risk in childbed than private women, ishment of the admiral altogether un- merely because their medical attend- just and absurd He died for ants are more anxious. The surgeon doing what the most loyal subject, the who attended Marie Louise was al- most intrepid warrior, the most expe- together unnerved by his emotions, rienced seaman, would have done. ' Compose yourself,' said Bonaparte ; 1 Mackenzie's Roman Law, 2d ed. p. 197. 66 BOOK I.] ABSURDITY OF. [§ 67. § 66. For, from the essential imperfection of human activity, so it is well argued by Hasse, there is no continuous duty which we can engage in without being justly chargeable, at some time or other during its discharge, with this culpa levissima, or infini- tesimal negligence. The successful general, it has been said by those who were themselves great generals, is he who commits the fewest blunders. There is no past campaign, even of the most consummate strategists, of which we cannot say, " There was a blunder which was only saved from being injurious by a greater blunder on the other side." And as with great affairs, so with little. We may take the case of an ordinary common carrier of goods. This carrier, if he studied the weather bulletins, might have prognosticated a sudden storm by which the goods carried by him were soaked. If he had properly examined the archi- tecture of a great city (e. g. as in Chicago, before the fire of 1870), he would not have stored his goods in the city, so that they were burned up, but would have taken them to the out- skirts, or not stored them at all. If he had carefully scanned the map of the country, he would have seen that by making a long detour he could have crossed an intervening railroad by a bridge, instead of attempting to cross on a level, where his horses took fright. But to exact diligence in cases corresponding to the first two of these illustrations would require a skill and extensiveness of apprehension incompatible with the occupation of an ordinary common carrier ; to require precautions so excessive as those in- dicated by the second illustration would be incompatible with the prompt performance of his bailment. In other words, to pass from the concrete to the abstract, the human mind, from its lim- itedness of vision, is incapable of perfect diligence. In certain periods of great excitement such diligence may for a time be ap- proached. But in any continuous work such intense diligence is intermittent. And when the intermission comes, there is negli- gentia levissima. The diligentia diligentissimi^ for the time at least, has waned. § 67. So also must we conclude, viewing the question induc- ' imagine that you are assist! 113; a poor sovereign was ever so indulgent to girl in tlie Faubourg Saint Antoine.' mere errors of judgment; and it is .... Bonaparte knew mankind well, certain that no sovereign ever had in As he acted toward this surgeon, so his service so many military men fit he acted toward his ollicers. No for the highest commands." 67 § 68.] NEGLIGENCE : [BOOK I. lively, from an examination not merely of the person acting, but of the thing acted on. Is there any enterprise of any importance to society that can be conducted without some culpa levissima ? Has there ever been such ? And if the managers of such enter- prises are to be held responsible for culpa levissima, would such enterprises ever be undertaken ? Have we not illustrated the im- practicability of such a superlative standard of diligence by the fact that our Anglo-American common carrier's liability for insur- ance of goods is now, with the approval of the courts, almost universally excepted away ? In other words, some slight deflec- tion from a perfect standard is incident to all human labor ; and as whatever is so incident cannot rightfully be subjected by the law to penalty, so these deflections, when only so slight, are not the subjects of juridical condemnation. Or, to fall back on the postu- lates of the older jurists, the law deals with men, not as perfect mechanisms, capable of pursuing a perfectly exact line, but as im- perfect moral agents, who must use imperfect machines, and de- pend upon uncertain natural agencies. To exact continuously the diligentia diligentissimi is not only unjust, but is destructive to business, by imposing on it conditions under which it cannot be performed. It is sufficient if we say to the non-expert (e. g. a non-professional nurse, or a farmer in whose barn a box is tempo- rarily left by a traveller for his own convenience), " You are re- quired only to use such diligence as ordinary persons commonly use in ordinary affairs ; " and if we say to the expert (g. g. the physician, or the railroad company, or the pilot), " You are re- quired to use the diligence which a skilful and faithful expert in your own branch uses as to work in his particular line." The only qualification to this is that which arises, as has been hereto- fore shown, when, either as matter of aggravation or excuse, it is proper to show how the agent charged with negligence acted as to his own affairs. § 68. Classification of contracts in respect to grade of negli- gence. — Mommsen lends his high authority to the position that the grade of negligence is, as a general rule, to be determined by the question of advantage.^ Is the contract solely for another's benefit ? Then I am liable only for dolus and eidpa lata. Am I, to take the alternative, to reap a benefit from the contract, either for myself alone or in company with others ? Then I am ^ Beitrage zum Obligationenrecht, III. 391. 68 BOOK I.] DIFFERENT KINDS OF. [§68. liable for culpa in its fullest sense. But to this rule Mommsen makes the following exceptions : — (a) 3Iandate and Negotiorum gestio, in which the delinquent is liable for culpa of both classes, though he reaps no advantage from the undertaking. Mommsen agrees with Donell in the opinion that this strictness results from the fact that in these contracts success is conditional upon the diligence of a dlligens paterfamilias ; and that in Mandate the mandatary tacitly under- takes to bring to bear the diligentia of a diligens paterfamilias. With the negotiorum gestio the additional circumstance is to be considered, that the negotioriim gestor may be a volunteer who intrudes himself (se obtulit) into the conduct of another's affairs. (b) There are some obligatory relations in which the delin- quent is liable for dolus and culpa, the culpa however being sub- ject to the modification of culpa in concrete. This is the case with the obligation of the guardian, of the partner, of those con- cerned in the com7nunio incidens, and of the husband (by the Roman law) as to the dos. In partnership, in the communio in- cidens, and in respect to the dos, the delinquent is usually liable for culpa generally.! 1 Deraangeat (Cours de Droit Ro- main, III. 447; Paris, 1866) tlius dis- cusses the classification of contracts : — " Un ddbiteur qui d'apres la nature du contrat, doit repondre meme de la faute leg^re peutvalablementconvenir qu'il n'en repondra seulement de son dol ; et, reciproquement, celui qui d'apres la natur du contrat, ne doit repondre que de son dol pent valable- ment convenir qu'il repondra aussi de sa faute. Mais un debiteur ne peut jamais convenir qu'il ne repondra pas de son dol. Ulpien, L. 23 (vers la fin), D., De reg. jur. Nous aurons bientot a expliquer d'une manifere g^n^rale ce texte important. " E'n I'absence de convention spd- ciale, de quoi repondent les differents debiteurs tenus d'une action de bonne foi? " 1* Lorsqu'il s'agit d'un debiteur qui rend k I'autre partie un service purement gratuit, counne le depositaire et le commodant, ce debiteur est re- sponsable seulement de son dol. On ad met la meme rfegle on ce qui con- cerne le mensor, contre qui le Preteur avait etabli une action in fuclum. Ul- pien, L. 1. § 1. D., Si mensor fals. mod. dix. (11. 6). Par exception, le negotiorum gestor, bien que rendant un service purement gratuit, repond et du dol et de la faute. Inst. § 1. in Jine De ohlig. quasi ex contr. (III. 27.) II en est de mC'me du tuteur ; mais, quant au mandataire, les juriconsultes romains paraissent n'avoir pas 6i6 d'accord : In mandali judicio, di( Modestin, dulu, uon elium culpa, de- ducitur, quamvis siny}tl(iriler denotare liceat in tutelae judicio utrumque de- duct, cilia solius pttj/itli, uon etiam tutoris, utilitas in adiniuistrnlioite ver- setur. CoUatio leg. inosaic. Tit. X. ch. II. § 3. Ulpien, au contrairc, traite le mandataire exactement comme le tuteur. L. 23. 1). De reg. jur. 69 §69.] CULPA : [book I. § 69. ffasse's Classification. — The following we owe to Hasse, whose authoritative labors on this topic have already been fre- quently noticed : — " 2° Lorsqu'il s'agit d'un d^biteur Jiducia, en s'engageant par fiducie ^ la qui ne rend point un service purement rendre dans une certaine hypothese. gratuit, mais qui est interessee dans [D'apres la L. 18 pr. in fine D., Com- I'operation, soit qu'il en profite seul, mod. (13. 6), lorsque le commodat in- soit que les deux parties y trouvent tervient, non pas dans I'interet du leur avantage, comme un commoda- taire ou comme un vendeur, ce debi- teur ne repond pas simplement de son dol, il repond aussi de sa faute, et commodataire, mais, dans I'intferet des deux parties, on peut dire que le com- modataire repond de sa faute, ut ith culpae fiat aestimatio, sicut in rebus generalement la faute est apprecieetn pignoi-i datiset dotalibus aestimari solet. abstracto. " 3" L'operation est bien interessee de la part du debiteur ; mais, de plus, ce debiteur est co-proprietaire de la chose due : il repond alors de la faute appreciee in concreto. Cela s'ap- plique : 1" A I'associe. [Inst. § 9. De societ. (III. 25.) Sufficit talem dili- gentiam in communibus rebus adhibere socium, quaJem suis rebus adhibere solet : nam qui pariim diligentum socium sibi, adsumpsit, de se queri debet. Evidem- ment la raison n'est pas bonne ; car il y a bien d'autres cas ou je choisis ewalement celui avec qui je contracte, et oil neanmoins je puis le faire con- damner sil n'apporte pas la diligence II est tres-probable que Gains, au lieu de pignori dat'is avail ecrit fiduciae datis ; les commissaires de Justinien ont supprime partout la mention de la fiducie.] " 5° A la personne grevee de legs ou de fideicommis Torsqu'il doit lui rester quelque chose de la succession. Ul- pien, L. 22. § 3. D., Ad Senatusc. Trebell. (36. 1.) Comp. Africain, L. 108. § 12. D., De leg. 1°. Nous savons que le tuteur repond de sa faute; peut-etre faut-il I'apprecier j'n concreto. Telle parait, du moins, avoir ete I'opinion d'Ulpien, qui s'ex- prime ainsi, en parlant de Taction directe de tutelle : In omnibus quae d'un bonus paterfamilias, quelque neg- fecit tutor, ciim facere non deberet, item lio-ent qu'il soit d'habitude pour ses propres affaires. De plus nous allons le voir immediatement, le simple com- muniste, que je n'ai point choisi, est tenu absolument comme celui avec qui je me suis associe.] 2° Au simple communiste qui n'est point devenu tel par I'effet d'un contrat. Paul, L. 25. § 16. D., Famil. ercix. (10. 2.) 3° Au mari qui est bien proprietaire unique des choses dotales, mais quicependant jusqu'^ un certain point peut etre con- sidere comme etant seulement co-pro- prietaire avec la fenime. Paul, L. 17 pr. D. Dejure dot (23. 3). " 4° A la personne qui, dansl'ancien droit, acquerait une chose contracla 70 in his quae non fecit, rationem reddet hoc judicio, praestando dolum, culpam el quantam in rebus suis diligentiam. L. 1 pr. D., De tutelae et ration. (27. 3.) *' Quelle est done precisement la difference entre la condition de ceux repondent seulement de leur dol (ce qui comprend la culpa lata) et la con- dition de ceux qui repondent bien de leur faute, mais appreciee in concreto, par exemple, entre la condition du depositaire et la condition I'associe ? C'est au point de vue de la preuve qu'existe surtout la difference, c'est au point de vue de la preuve que la con- BOOK I.] ANALYSIS OF. [§69. A. When agency is established. a} This may occur voluntarily, in which case the agent dition du depositaire vaut un peu mieux que celle de I'associe. " La chose deposee a peri le depos- itaire ne peut pas la restiteur ; pour qu'il soit tenu k des dommages-interets envers le deposant, il faudra que celui- ci reussissie k prouver que de la part du depositaire il y a eu dol ou qu'il y a eu une faute que le depositaire ne commet pas habituellement dans ses propres affaires. Cela resulte de ce deux : le depot et le preeaire. Nous n'avons pas k revenir sur le depot. Quant an preeaire, il ressemble beau- coup au commodat. II en diflFere sur- tout : 1° En ce que le concessionnaire k preeaire a la possession ad inter- dicta, tandis que le commodataire est tantum in possessione. Voy. notre t. 1. p. 428 et 429. " 2° En ce que le concessionnaire k preeaire repond uniquement de son que le dol ne se presume pas et de ce dol, tandis que le commodataire r^- que la faute lourde est assimilee au dol. Au contraire, un associe, qui avait entre les mains une chose so- ciale, ne peut pas la restiteur parce qu'elle a peri : doit-il des dommages pond meme de sa faute legfere. Voy. le mfime Ulpien, L. 8. § 3. D., De pre- cario (43. 26). " Maintenant, quels sont les cas dang lesquels le debiteur repond et du dol interets? Oui, k moins qu'il ne prouve et de la faute ? Ulpien cite le man- qu'elle a peri par cas fortuit, ou, si dat, le commodat la vente, le gage, le c'est par sa faute, tout au moins qu'il louage, la dot, la tutelle, la gestion sdgit d'une faute qu'il commettait d'affaires, la societe et I'indivision. habituellement dans ses propres af- Pour ces deux dernier cas, la faute faires. C'est la consequence du prin- s'apprecie in concreto. Pour le man- cipe general suivant lequel, une fois dat, pour le commodat, pour la vente, etabli que telle a personne a contracte pour le gage, pour le louage, elle s'ap- une dette, si elle se pretend liberee, il precie in abstracto. Reste trois ca8 lui incombe de justifier de la cause dans lesquels on est tenu quasi ex con- qui lui a procure sa liberation. tractu, savoir : dotis da/io, tulelae, ne- '• La texte fondamental dans cette gotia gesta. Dans le dernier, la faute matifere des fautes est un fragment s'apprecie certainement in abstracto : d'Ulpien que j'ai dejk eu I'occasion de et c'est Ik sans doute ce qu' Ulpien a citer, la L. 23. D., De reg. juris. Les voulu exprimer par ces mots : in his anciens interprfetes I'appellant souvent quidem et diligentiam. Mais dans leg la Loi coNxnACTUS, d'aprfes le pre- deux autres, je crois qu' Ulpien etait mier mot. Beaucoup d'interprfetes d'avis d'apprecier la faute in concreto. proposent de faire subir k ce texte des [Ulpien dit, k la fin de cette L. 23 : corrections ou tout au moins des trans- Animalium, casus, viorles quaeque sine positions; elles sont toutes arbitraires, et je crois qu'il n'en est pas besoin pour arriver k un sens satisfaisant. Ulpien pose d'abord ce principe. Contractus quidam dolum malum dun- taxat recipiunt, quidam et dolum et culpam. Quels sont les contrats dans lesquels le debiteur est tenu seulement de son dol ? Ulpien n'en cite que culpa accidunt, fugae sen-orum qui cus- todiri non solent .... a nulla praes- tantur. Cela vient bien k I'appui de I'explication donnee, d'aprfes M. de Savigny, ci-dessus, p. 310 et 311.]" By Ortolan, in his Explication I£i«- toriquc des Instituts, III. 3t;0, Hth ed. Paris, 1870, is given the following: — " Sont resjwnsables, non-seuletuent 71 §69.] CULPA [book I. is responsible for omnis culpa ; not merely for the neglect of ordinary diligence, but for the neglect of the diligence of a good business man. Under this head falls, — mais de toute faute, c'est-k c'est au deposant k se reprocher du dol, dire de la faute niesuree sur les soins du pfere de famille le plus diligent ; plus de soin qu'ils n'ont coutume d'en apponer dans leurs propres affaires : 1° le comniodataire (ci-dess., No. 121 7) et le deposant, parce que la eontrat est intervenu dans leur unique interet ; 2° tant celui qui a donne que celui qui a re9u le gage, dans le eontrat de gage (ci-dess., No. 1228) ; tant le ven- deur que I'acheteur, dans le eontrat de vente (ci-dess., No. 1472) ; tant le locateur que le locataire, dans le eon- trat de louage (ci-dess., No. 1514), parce que le eontrat est interresse de part et d'autre; 3° tant le mandataire que le mandant, bien que le eon- trat intervienne communement dans I'unique interet de ce dernier; mais d cause de la foi religieuse de ce eontrat (ci-dess.. No. 1553); enfin 4° le nego- liorum gestor (ci-dess., tit. 27. § 1), parce qu'il s'estingere volontairenient et spontanement dans les affaires d'autrui. A moins qu'il ne I'eut fait que comme contraint par des senti- ments d'amitie {affect ione coaclus), dans un cas de necessite urgente. (Dig. 3. 5. De negot. gest. 3. § 9. f. Ulp.) II rentrerait alors dans la categorie qui va suivre. "1651. Sont responsables, au con- traire, uniquement du dol, et de la faute dans la mesure de leur caractfere personnel, autant de soin qu'ils ont coutume d'en apporter dans leurs d'avoir choisi un depositaire negli- gent; 2° les associes (ci-dess., No. 1535), les communistes, les coheri- tiers, dans le gestion de la chose com- mune, et le mari dans celle des biens dotaux. Dig. 17. 2. Pro socio. 72. f. Gai. 10. 2. Famil. ercix. 25. § 16. 23. 3. De jur dot. 17. pr. f. Paul, et 24. 3. Solul. matrim. 24. § 5. f. Ulp. " Parce qu'il s'agit pour eux non- seulement de I'affaire d'un autre, mais de leur propre affaire, et qu'ils ont en consequence une cause personnelle pour s'en meter : ' Hie propter suam partem causam habuit gerendi. Dig. 10. 2. Famil. ercix. 25. 10, f. Paul. " Partageant avec les autres le peril de leur mauvaise gestion, leur propre interet est une garantie : ajoutez ac- cessoirement, quant a la societie, que celui qui s'est donne un associe peu diligent doit s'en prendre a lui m^me ; 3° enfin, le tuteur et le curateur, parce que, leurs fonctions leur etant im- posees, ils ont aussi une cause person- nelle et necessaire d'agir pour autrui. Dig. 27. 3. De tutor, et rat. distrah, 1 pr, f. Ulp. 1652. Quant a la culpa lata mesuree d'une manifere absolue, sur le commun le plus grossier des hommes, ne pas comprendre ce que tout le monde comprend (ci-dess.. No. 1641) ; malgre I'idee qu'on pent s'en faire au premier abord, il n'y a rien de particulier k en dire ; elle vient se confondre dans propres affaires ; car c'est manquer k les deux series de responsabilite que la bonne foi que d'agir autrement (nee enim salva Jide minorem Us quam suis rebus diligenliam praestabit) : 1° le commodant et le depositaire (ci-dess., No. 1221), parce qu'ils ont rendu, dans le eontrat, un service purement gratuit, et qu'i I'egard du depositaire 72 nous venons d'indiquer : soit parce que depassant generalement en gravite les fautes marquees dans ces deux series, elle est comprise a fortiori dans le responsabilite de cliacune de ces series; soit parce que, si, par impossi- ble, quelqu'un s'etait choisi un depos- BOOK 1.] ANALYSIS OF. [§ 69. a^ The Mandator. 5^ The negotiorum gestor, who as a rule is liable only for the particular business conducted by him ; and there is no obligation on him to undertake other affairs of his absent principal.^ If he displaces other agents, he is lia- ble for whatever damage occurs from his want of good business diligence.^ He is liable, if he venture his ab- sent principal's property in speculations such as that principal was not accustomed to undertake, even for casus, though if he makes anything in these novis et in- solitis negotiis, he can set this off against his losses, for such profit cannot be credited to the do77iinus nego- tiorum.^ But the negotiorum gestor, when he under- takes a desperate commission, and rescues property which otherwise would have been wrecked, is liable only for dolus (fraud) and culpa lata (gross negli- gence) .* a^ Under compulsion of law. In such case the agent is protected if he can show that he has bestowed the dili- gentia quam suis, or the diligence applied by him to his own affairs. In this class fall the tutor and the curator. B. Where no agency is established ; but where the bailee is required by an obligation to perform a duty as to a thing. a^ Where the bailee has no advantage from the bailment. In this case he is liable only for dolus and culpa lata. But he is chargeable with dolus or culpa lata (fraud or gross negligence), if it appears that he has acted in the bailment with a negligentia suis rebus non consueta. Under this class falls, — a^ The Depositar. If he has forced himself in the bail- ment he is liable for culpa omnis, or negligence of both grades.^ The same rule holds when he obtains any benefit for his services, though this benefit do not consist in hire.^ itaire ou s'etait donne un associe assez ^ L. 24. C. borne, assez idiot, pour etre inenic ' L. 6. § 12. D. de ncgot. gest. audessous de ce que tout le monde ' L. 11. D. de negot. gest. comprend, ce serait toujours d'apres * L. 3. § 9. D. eod. ce niveau pei-sonnel inferieur qu'il ^ L. 1. § 35. D. depos. faudrait juger do la responsabilite ^ L. 2. § 24, D. de vi bon. d'un tcl etre." <3 § 69.] CULPA : [book i. W' The Universal Fiduciar. (^ The Singular Fiduciar and the Legatar. d^ The creditor put by process of law in possession of his debtor's goods. h^ Where the bailee derives advantage from the bailment. In this case he is bound not merely to show common dil- igence, but the diligence of a good business man. Under this head fall, — a^ Sale, when the goods are held in the vendor's hands as yet undelivered to the vendee. 6^ Hiring. In L. 23 de R. I. and L. 5. § 2 commod. locatio conductio is placed in the category of con- tracts which require diligentia diligentis^ and in which the bailee may be liable for culpa levis^ or special negligence. The same is negatively shown in L. 11. § 3. and L. 13. § 1. D. locat. Liability for accidents in hiring ceases only when there is no neg- ligence, gross or special, on part of the bailee (si culpa carer et conductor), c^ The Pledgee (holder in pignus or pawn). By Ul- pian in L. 9. § 5, de reb. auct. jud. possib. the rule in pignus or pawn is declared to be that nan solum dolus malus^ verum culpa quoque debeatur. So in L. 30. D. de pignorat. act., only culpa (and dolus}, em- bracing, therefore, both phases of culpa, but not vis major, can be charged. In L. 25 eod. Uipian speaks of instruere pignoratos servos; and tells us, negli- gere enim ereditorem dolus et culpa, quam praestat, non patitur. Culpa is here used in its general sense. In L. 22. § 4, D. eod. when the sale of the pawn is discussed, this qualification is added : Si mode sine dolo et culpa sic vendidit, et ut paterfamilias diligens id gessit. Hence the person to whom an article is pawned is responsible not only for culpa lata but for culpa levis. And indeed the pignus, in respect to praestatio culpae, is expressly placed, in L. 13. § 1. L. 14. D. de Pignor., is on the same basis with the Commodat. d^ The Usufruct. 74 BOOK I.] ANALYSIS OF. [§ 69. e^ The honce jidei possessor in the rei vindicatio post litem contestatem.^ f^ The heir in relation to the Legatar and Singular fidei commissar.2 g^ The Commodatar, when he alone derives benefit from the contract.^ If the position of the parties be re- versed so that the Commodant only has benefit from the contract, then the Commodatar like the Deposi- tar is liable only for dolus.^ If both parties derive advantage from the contract, then the bailment is for a common object and the adventure is consid- ered a Societas^ and falls under the next head. C. Where the contract concerns a business which the contract- ing parties are conducting in common. In this case each party is liable not only for fraud but also for culpa. As to the culpa, however, there is this subordinate distinction. The bailee must exert diligentia, but his liability ceases if he can show that his diligence is the same as that dis- played by him in his own affairs. The reason is that in joint business each party chooses the other on account of personal qualities which it is fair to take as the gauge of liability. Under this head falls, — a^ Societas, analogous to our partnership. 51 The rerum communio (c. incidens). e^ The relation of the husband to the dos, and to the Paraphernen which are intrusted to him for the com- mon purposes of the marriage.^ 1 L. 45. L. 33. L. 51. L. 36. § 1. L. * L. 5. § 10. D. Commod. 63. D, de R. V. * L. 17. pr. D. de jure dote ; L. 18. 3 L. 50. § 4. D. ad leg. Falcid.; L. § 1. in f.; L. 24. § 5 ; L. 25. § 1 ; D. 47. § 4. 5 ; L. 59. D. de legat. solut. niatr.; L. 11. D. de pactis con- 8 L. 5. D. Commod.; L. 1. § 4. D. ventis; and other passages cited by de O. et A. and other references. Hasse, p. 377. 75 CHAPTER III. CAUSAL CONNECTION. I. Definition of causation, § 73. Specific injurj' need not have been foreseen, § 74. Yet such foreseeing an evidential incident, § 76. "Reasonably expected" converti- ble with " ordinary natural se- quence," § 78. II. Distinction between acts and omis- sions, § 79. Omissions not in discharge of positive duty not the subject of suit, § 82. But are so when constituting a defec- tive discharge of a legal duty, § 83. III. Distinction between conditions and causes, § 85. IV. Causation requires a responsible hu- man agent, § 87. Persons incapable of reason, § 88. Persons under compulsion, § 89. Unconscious agents, § 90. Sending explosive compound through carrier, § 90. Negligent sale of poison, § 91. Giving loaded gun to another, § 92. Loss of self-control through defend- ant's negligence, § 93. Self -injury done in fright, § 94. Person acting precipitately and un- der excitement, § 95. V. Causation must be in ordinary natural sequence, § 97. Conformity with well known material forces, § 97. Natural and probable habits of ani- mals, § 100. Setting loose worrying dogs, § 100. Permitting cattle to stray, § 101. Horses taking fright on public roads, §103. Horse switching his tail over reins, §106. Frightening horses on road, § 107. 76 Natural and probable habits of men acting in masses, § 108. Extraordinary interruption of nat- ural laws, casus, § 114. Kelations of responsibility to casus, § 116. Act of public enemy. Vis major, § 121. Provoked casus no defence, § 123. Necessary sacrifice of property in order to avoid public calamity, § 126. Casus no defence when it could be avoided, § 127. Burden of proof as to casus, or vis major, § 128. VI. Indiscretion or concurrence of party injured, § 130. This bar not based on maxim volenti nonfitinjuriam, but on the interrup- tion of causal connection, § 132. VII. Interposition of independent respon- sible human agency, § 134. This is by Roman law a bar, § 135. So Anglo-American law, § 136. Reasonableness of this doctrine, § 138. Mischievousness of opposite view, § 139. Its unphilosophical character, § 140. Illustrations, § 141. But limitation does not apply to con- current interpositions, § 144. Nor where such interposition is the natural consequence of defendant's act, § 145. VIII. Interposition of intermediate object, which if due care had been taken would have averted disaster, § 148. Intermediate dams or watercourses in cases of freshets, § 148. Intermediate buildings in cases of fire, § 149. BOOK I.J CAUSAL CONNECTION. [§ 73. I. DEFINITION OF CAUSATION. § 73. A NEGLIGENCE is the juridical cause of an injury when it consists of such an act or omission on the part of a responsible human being as in ordinary natural sequence immediately results in such injury. Such, in fact, we may regard as the meaning of the term " Proximate cause," adopted by Lord Bacon in his max- ims.i The rule, as he gives it in Latin, is : " Li jure non remota causa sed proxima spectatur," which he paraphrases as follows : — " It were infinite for the law to consider the causes of causes, and their impulsions one of another ; therefore it contenteth it- self with the immediate cause ; and judgeth of acts by that, with- out looking for any further degree." This proposition he contents himself with illustrating by a series of cases from the Year Books, of which the following is the first : — " As if an annuity be granted pro consillo impenso et impen- c7e»ic?o, and the grantee commit treason, whereby he is imprisoned, so that the grantor cannot have access unto him for his counsel ; yet, nevertheless, the annuity is not determined by this nonfeas- ance. Yet it was the grantee's act and default to commit the treason, whereby the imprisonment grew : but the law looketh not so far, but excuseth him, because the not giving counsel was compulsory and not voluntary, in regard of the imprisonment." A series of similar black-letter cases follow, showing that Bacon's object was rather to explain the maxim by authorities with which the ordinary legal mind was then mainly conversant, than to bring his own matchless powers to bear in the philosoph- ical expansion of the maxim. Of the latter mode of treatment we have but a glimpse in the following : — " Also you may not confound the act with the execution of the act ; nor the entire act with the last part, or the consummation of the act." In the Cambridge manuscript, as given by Mr. Heath, we liave the following rendering of this passage : — " Also you may not confound the act with the execution only of the act, and so the cause of the act with the execution of the act, and by that means make the immediate cause a remote cause." Of this qualification we will find numerous ilUi.strations in the 1 Reg. 1. 77 § 73.] NEGLIGENCE : [BOOK I. following pages. Thus the servant's negligence when the master is sued is, to use Bacon's language, the " execution of the act, " or the "last part" of the act; and the master's negligence, in employing the servant, therefore, is the " immediate cause and not the remote cause." So also we may say as to the gross neg- ligence of a railroad company in running down cattle. The cattle, if more sagacious, might have left the track ; and at all events, their staying on the track is a condition immediately precedent to their being run down. A condition of prior prece- dence is the negligence of the engineer. Yet the latter is, in a suit against the railroad, to recur to Bacon's phraseology, the " immediate " and not the " remote " cause. Yet, though Bacon avoids philosophical and even juridical expo- sition of his text, it is natural to infer that he does so because the text is itself virtually from Aristotle, whose works were then in the hands of jurists as well as of philosophers, and whose au- thority even the powerful criticisms of Hume and of Mr. J. S. Mill has failed to shake. By Aristotle causes are divided into four heads ; the material, the formal, the efficient, and the final. The material cause is the matter from which a thing is made, and without which it cannot be made ; as marble is the matter of a statue. T\\e, formal cause is the archetype, as the idea of the sculptor is the formal cause of the statue. The efficient cause is the principle of change or motion which produces the thing ; as, in a juridical sense, the will of the sculptor is the prompting power which produced the application of his idea to the marble, and, in a theological sense, the Divine will is the prompting power which evolved the Divine idea in the formation of both sculptor, of marble, and of the everlasting hills from which the marble is dug. This is the P^px^ ttjs Kti/j/o-ews ; the causa efficiens, to which "the jurists constantly advert. The final cause is the object of a thing ; the ultimate beneficial purpose for which it is designed ; to ov hena kul to ayaOot', causa finalis. This classifica- tion is expressly accepted by Bacon in his " De Augmentis." ^ It is true that he declines to enter upon the discussion of final cause, " the inquisition " of which he declares " is barren," " like a virgin consecrated to God." But his mode of treating the " causa efficiens " makes it plain that he regards it as convertible with the " proximate cause " of the maxim. ^ ^ Book III. ch. V. ^ Meaning o/term "proximate," il- 78 BOOK I.] CAUSAL CONNECTION. [§74. § 74. Not necessary that the specific injury should have been foreseen. — It is true that we are frequently told that liability in negligence attaches, when the party charged has reasonable grounds to expect the damage that occurred in consequence of his lustrated by insurance cases. The term " proximate " is illustrated by a series of cases which, though not in the direct line of the present inquiry, may be invoked for their juridical value. " Perils of the sea " are in- sured against in our marine policies. Is the loss of a particular ship charge- able to a peril of the sea ? It has been generally ruled that the peril must be the proximate and not the remote cause of the disaster. Taylor v. Dunbar, L. R. 4 C. P. 206; Seagrave v. Union Mar. Ins. Co., L. R. 1 C. P. 320 ; Hagedorn v. Whitmore, 1 Stark. N. P. C. 157 ; Grill v. General Iron Co., L. R. 3 C. P. 476; S. C, L. R. 1 C. P. 600; Livie v. Janson, 12 East, 653, citing Green v. Elraslie, Peake N. P. C. 212; Hahn v. Corbett, 2 Bing. 205; Walker v. Maitland, 5 B. & Aid. 171; Waters v. Louisville Ins. Co. 11 Peters, 220; Columbia Ins. Co. V. Lawrence, 10 Peters, 517 ; Patapsco Ins. Co. V. Coulter, 3 Peters, 222 ; General Mut. Ins. Co. v. Sherwood, 14 Howard (U. S.) 354 ; Patrick v. Com- mercial Ins. Co. 11 Johns. R. 14 ; and other cases cited in Broom's Legal Maxims (5th Lond. ed.) 216 et seq. " A policy of insurance," says an able article on this topic in the Amer- ican Law Journal for January, 1870, p. 214, " is a contract of a fixed form. By use its terms have obtained a settled meaning. Its subject matter is extensive. It is a contract made in the interest of trade. Large amounts of property are covered by policies containing the same stipulations. The contract is one of indemnity. In de- termining the question, whether a peril insured against was the proxi- mate or the remote cause of a loss, or, what is the same question, whether a loss of that general description was intended by the parties to be covered by the policy, the peculiar nature of a policy of insurance, and the clafss of interests it covers, are taken into ac- count. Tlie particular intent of the parties is subservient to the public bearing of the question. The terms proximate and remote, in their appli- cation to questions of insurance, thus receive in some respects a more en- larged, and in some a more restricted, signification than they have when they are used in giving a construction to other contracts. But the maxim is as well applicable as a rule of con- struction for all contracts. " In actions for negligence, a de- fendant is held liable for the natural and probable consequences of his mis- conduct. In this class of actions his misconduct is called the proximate cause of those results which a prudent foresight might have avoided. It is called the remote cause of other re- sults. " In determining the amount of damages in an action of contract, the breach of contract is called the proxi- mate cause of such damages as may reasonably be supposed to have been contemplated by the parties. If there are other damages, of those it is called the remote cause. " Tliere is no settled rule for the ap- plication of the maxim in determining the damages in actions of tort. In such actions the damages, which are called proximate, often vary in pro- portion to the misconduct, reckless- ness, or wantonness of the defendant." TO § 75.] NEGLIGENCE : [BOOK I. neglect ; and this is sometimes pushed to the extent of maintaining that when there is on his part such reasonable grounds of expecta- tion, then he is liable, and that he is not liable when there are no such reasonable grounds of expectation. Thus we are told by Pol- lock, C. B., that " every person who does a wrong is at least re- sponsible for all the mischievous consequences that may be reason- ably expected to result under ordinary circumstances from such misconduct ; " ^ and constantly the idea of " reasonableness of ex- pectation " is made convertible with imputability. It has however been already shown,^ that there may be cases in which there is such a reasonable expectation in which there is no imputability of negligence. § 75. Illustrations to the same effect may be drawn almost with- out limit from an ordinary observation. The miner, the manu- facturer, and the merchant, so argues a vigorous German thinker of our own day,^ must regard it as probable that the weapon to which each contributes his share may be vised to commit a wrong ; the roof coverer must regard it as probable that a tile may at some future time be detached and may strike some one walking in the street. So parents, ^especially such as are not themselves distin- guished for their reverence for law, must regard it as not improba- ble that their children may become law breakers. In neither of these cases, however, does this perception of probability by itself create liability. Even when this probability approaches the high- est grade, there are cases in which liability is by common con- sent excluded. For instance, a man is suffering with a sickness which in a few days will terminate fatally, unless he submits to a perilous operation which, if not successful, will cause his death in a few hours. He is unconscious ; and therefore unable to give or withhold assent. A surgeon performs the operation skilfully but unsuccessfully, and the patient dies, not of the disease but of the operation. The surgeon saw that it was highly probable that death would ensue ; yet he is nevertheless not liable for the death, for he acted, notwithstanding this probability, according to the rules usually accepted in practical life. If desperate operations are not risked in desperate cases, improvement in surgery is greatly hindered ; and besides this, it is in conformity with the 1 Pollock, C. B. — Rigby v. Hewitt, 5 2 Supra, § 1 6. Exch. 243; cited by Byles, J. Hoey ^ Bar, Causalzusammenhange, 1871, V. Felton, 11 C. B. N. S. 143. p. 13. 80 BOOK I.] CAUSAL CONNECTION. [§ 76. ordinary rules of society to risk a few days of unconscious or of exquisitely painful existence for even a slight probability of re- covery. So, also, there exist, to follow the argument of this acute reasoner, certain necessary though dangerous trades, of which we can say statistically that in them will be sacrificed prematurely the lives not merely of those who voluntarily engage in them, but of third persons not so assenting. Yet in such cases (c. g. gas manufactures and railroads), we do not hold that liability for such injuries attaches to those who start the enterprise foreseeing these consequences. If the consequence flows from any particu- lar negligence, according to ordinary natural sequence, without the intervention of any independent human agency, then such consequence, whether foreseen as probable or unforeseen, is imput- able to the negligence. But if the agency by which the harm is done is conducted with proper precautions, and is itself one of the necessary incidents of our social life, the persons concerned in managing such agencies are not liable for injuries incidentally inflicted on others, even though such injuries were foreseen. § 76. TJie foreseeing of an injury may hoivever he an incident from which both dolus and culpa may he inferred. — It must not be supposed, however, that the foreseeing an event as probable' has nothing to do with the imputation of liability. It is true that it is not enough to make a person liable for hurt done through his. agency that he foresaw the probability of such hurt in general,, for the hurt may be one of the regular and lawful incidents of a lawful employment, such as the making of gunpowder. So, on the other hand, if such hurt is one of the incidents of improper conduct on the part of the person charged, he cannot relieve him- self by proof that he did not foresee it, because it was his duty, to< have marshalled the probabilities, and he is liable for negligence' in omitting so to do. At the same time it must not be forgotten that the probability of a particular result has much to do in ex- plaining the motive prompting to such result. Motive is the creature of probabilities. A certain result is probable, and I do what will lead to this result. Two extremes however, in this view, are to be avoided. The absolute foreseeing of a result is not essential to the imputation of negligence, for this is incom- patible not only with the idea of negligence, but with that of moral agency which precludes absolute foreknowledge. So the foreseeing of a harm as remotely and sligiitly probable does not 6 81 § 78.] NEGLIGENCE : [BOOK I. involve the imputation of such a harm, for there is nothing that we can do that may not remotely produce some harm, and therefore if we are to avoid such imputation we must do nothing. But if an event regularly (z. e. not uniformly, but in accordance with natural laws) follows a cause, then it is a contingency which a prudent man would expect ; and so, on the other hand, that a pru- dent man would expect it is strong proof that it regularly follows in accordance with natural sequence. § 77. Nor, on the other hand, as has been already shown,i can we claim that the fact that a particular consequence could not be reasonably foreseen relieves its negligent author from imputability. The fact is tliat the consequences of negligence are almost invari- ably surprises. A man may be negligent in a particular matter a thousand times without mischief ; yet, though the chance of mischief is only one to a thousand, we would continue to hold that the mischief, when it occurs, is imputable to the negligence. Hence it has been properly held that it is no defence that a par- ticular injurious consequence is "improbable," and "not to be reasonably expected," if it really appear that it naturally fol- lowed from the negligence under examination.^ § 78. " To he reasonably expected " means no more than " in ordinary natural sequence.'''' — Nor, when we scrutinize the cases in which the test of " reasonable expectation " is applied, do we find that the " expectation " spoken of is anything more than an expectation that some such disaster as that under investigation will occur on the long run from a series of such negligences as those with which the defendant is charged. Indeed, even by Pol- lock, C. B., whose language is so frequently quoted as sustaining this test, the phrase is used, as we find from other expressions of the same judge, simply for the purpose of excluding those contin- gencies which are so remote that they are not, in the long run, 1 Supra, § 16, 74. L. R. 5 Ex. 67; Gould ?'. Oliver, 2 2 Higgins V. Dewey, 107 Mass. 494. Scott N. R. 257 ; Smith v. Dobson, 3 See White v. Ballou, 8 Allen, 408; Scott N. R. 336; Taylor v. Clay, 9 Q. Luce V. Dorch. Ins. Co. 105 Mass. B. 713; Tuff v. Warman, 2 C.B.N. 297 ; Dowell v. Steam Nav. Co. 5 E. S. 740 ; S.C.b Ibid. 573 ; Witherley v. & B. 195 ; Dymen v. Leach, 26 L. T. Regent's Canal Co. 12 C. B. N. S. 2, Ex. 221 ; Clarke r. Holmes, 7 II. & 7 ; Morrison ?;. General Steam Nav. N. 937; Senior v. Ward, 1 E. & E. Co. 8 Exch. 733. See more fully su- 385; Williams v. Clough, 3 H. & N. pra, § 15-16. 258; Burrows v, March Gas, &c. Co. «9 BOOK I.] CAUSAL CONNECTION. [§ 78. within the range of experience. " I entertain considerable doubt," so it is said by this high authority,^ " whether a per- son who has been guilty of negligence is responsible for all the consequences which may under any circumstances arise, and in respect of mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated. I am inclined to consider the rule of law to be this, that a person is expected to anticipate and guard against all reasonable conse- quences, but that he is not by the law of England expected to anticipate and guard against that which no reasonable man would expect to occur." It is clear that this learned judge, therefore, simply intends to say that imputation exists as to all " reasonable contingencies ;" and this means that imputation exists as to conse- quences that in a long series of events appear regular and natural, not consequences only such as the party may at the time " reason- ably foresee." And Lord Campbell makes this still clearer when he tells us that "if the wrong and the legal damage are not known by common experience to be usually in sequence, and the damage does not, according to the ordinary course of events, fol- low from the wrong, the wrong and the damage are not suffi- ciently conjoined or concatenated, as cause and effect, to support an action." 2 This is substantially the test adopted in the text. The particular damage must be viewed concretely, and the ques- tion asked, " Was this in ordinary natural sequence " from the negligence ? If so, the damage is imputable to the party guilty of the neglect.^ 1 Greenland v. Chaplin, 5 Ex. 248. share in the matter is the most conspic- 2 Gerhard v. Bates, 2 Ell. & Bl. 490. uous and is the most immediatelij pre- 3 This view is sustained in 1 Smith's ceding and proximate to the event." Lead. Cas. (Eng. ed.) 132. Cited, with approval, in Sutton v. " The cause of an event," says Ap- Wauwontosa, 29 Wise. 21. This pleton, C. J., in Moulton v. Sanford, definition, which, down to tlie part in 51 Maine, 134, "is the sum total of italics, is substantially that of J. S. the contingencies of every descrip- Mill, is open in this respect to objec- tion, which, being realized, the event tions which will be more fully stated invariably follows. It is rare, if ever, in the Apjiendix. The objection to that the invariable sequence of events the part in italics is, that it includes subsists between one antecedent and material conditions as well as moral one consequent. Ordinaribj that con- causes. Jellersonville, &c. R. K. v. Ri- dition is usually termed the cause, whose ley, 39 Ind. 5C8. See supra, § 15-10. 83 § 80.] OMISSIONS : [book I. II. DISTINCTION BETWEEN ACTS AND OMISSIONS. § 79. Distinction between culpa in faciendo and culpa in non faciendo. — A distinction has been frequently taken between neg- ligence in commission and negligence in omission ; and this view has been advanced not only by Donell, a learned jurist, to whose acuteness we owe in other respects much, but by a contempora- neous English judge of much sagacity.^ Under these circum- stances it is pi-oper to consider it somewhat in detail. § 80. Under the Roman law. — By the Aquilian law, as we have seen, a party whose property or person is injured by the negligence of another can, independently of contract, have re- dress, under certain limitations, from the party injured. But it is not necessary that under this law the aggression should consist of an act of positive commission. Undoubtedly the Roman law, resting, as we have seen, upon that theory of individual inde- pendence which was the pride of the jurists, held that no man could usually be made liable for a mere omission to act. Yet even under this law an omission created a liability when it was a breach of a positive duty. An interesting case to this effect is given in the Digest, in the discussion of the Aquilian law.^ One servant lights a fire and leaves the care of it to another. The latter omits to check the fire, so that it spreads, and bums down a villa. Is there any one liable for the damages ? The first ser- vant is chargeable with no negligence, and the second charge- able only with an omission. Of course, if we follow the maxim that a mere omission cannot be the basis of a suit, there can be no redress. But Ulpian, who on another occasion insists strongly on this maxim as an essential principle of elementary law, casts it summarily aside when the attempt is to so use it as to confuse the bare omission of an act we are not bound to perform with the imperfect performance of an act to which we are bound. Against the negligenter custodiens^ he decides, the utilis Leg. Aq. can be enforced ; and there can be no question that he decides rightly, and in full accordance with his own views as to abstract non- liability for pure omissions. For it is clear that in the case before us, the non-action of the second servant is equivalent to 1 Bramwell, J., in Southcote t;. 2 l. 27. § 9. D. ad L. Aquil. 2. See Stanley, 1 H. & N. 248 ; Gallagher v. also Cleland v. Thornton, 43 Cal. Humphrey, 10 W. R. (Q. B.) 664. 437. 84 BOOK I.] CAUSAL CONNECTION. [§ 81. action. He undertakes the charge of the fire, and in the imper- fect performance of this charge he acts affirmatively and posi- tively. So, also, is it in the well known case of a physician who undertakes the case of a patient.^ A physician is not liable for not undertaking the case of a sick stranger. If, however, he un- dertakes the case, he is liable, though he has as yet given no advice. For, as Hasse well argues, it would be as absurd to require that some remedy should have been actually administered by him, in order to constitute liability on his part, as it would be to require, in order to make the person undertaking to watch a fire liable, that he should have stirred the coals with the tongs. Whoever, in other words, undertakes an office or duty, is as re- sponsible for negative as he is for affirmative misconduct in the discharge of such office or duty. He is not liable, as a general rule, because he declines to accept the ofiice or duty. But accept- ing it, he is bound to perform it well. Voluntatis est suscipere mandatum, necessitatis est consummare.^ § 81. DonelVs limitations as to culpa in non faciendo. — But to go into the question more in detail, culpa in non faciendo is considered by Donell in the following successive stages : — (1) He who is invited to undertake a duty has the alternative of accepting or rejecting. If he enters on the discharge of the duty, and in discharging it injures instead of aid- ing, he becomes liable for the injury. (2) But if he undertakes the duty and omits something in its performance, there are two conditions in which he is excusable : a. He may have been ignorant that he was required to act positively. h. While knowing he was required so to act, he may have doubted his capacity. To refuse to do that for which we feel ourselves incompetent is certainly not censurable. Of course to this is the qualification, nisi alia res te ad diligentiam ohliget. But, answers Hasse, the qualification nisi alia res te ad dili- gentiam ohliget contains the princi])le at issue. For if I am not bound to certain duties to another, I cannot be compelled to per- form such duties, no matter what may be the moral rrasons call- ing on me to act. If, however, I undertake the performance of 1 See L. 8. pr. D. ad L. Aq. 2; Hasse, p. 22. « Sec supra, § 12, 13; infra, § 412. 85 § 82.] ' OMISSIONS : [book I. this duty, then I am obliged to perform it diligently. Under the Aquilian law, as has just been shown, omission is treated as equiv- alent to action, in cases where I begin a work and then drop it, wherever this withdrawal works injury to another ; nor does it matter whether such withdrawal arises from malice, or ignorance, or timidity. With ohligationes only such positive and negative action is required as form the subject matter of the ohligatio ; and he who undertakes the obligation cannot excuse himself on the ground that he was ignorant of the scope of the obligation, or that he wanted courage to undertake its complete discharge. If he was incapable he had no business to undertake the obligation ; if he was ignorant of what it required, then his duty was to de- cline its acceptance.^ § 82. Omissions as such, when disconnected with a legal duty, not the subject of suit. — As a general rule it may be affirmed that omissions, unless when involving the non-performance or mal- performance of a positive duty, are not the subject of a suit. As has been elsewhere shown, this results from the nature of the civil compact ; for if the law undertook to compel men to perform toward each other offices of mere charity, then the practical and beneficent duty of self-support would be lost in the visionary and illusory duty of supporting every one else.^ It is scarcely neces- sary to point attention to the fact that if the maxim be generally true that he who injures another by his omissions is civilly liable, then the converse must also be true, that every one is obliged by law to be as useful to another as he can. To the Romans such an assumption was peculiarly offensive, — as to the Romans the in- dependence of each family was a fundamental maxim of the law. If each man is compelled to feed his neighbor, then his neighbor will be compelled to feed him back ; and where will this end ? No doubt in degenerate periods the cry of the rabble yf3i^ panem et cir censes ; but by the law as held by the great jur- ists, each family was a principality itself, which in its proud isola- tion depended on itself for its own support, excluding the aid of others as an intrusion upon personal rights, and rejecting such aid on principle as inconsistent with that spirit of personal indepen- dence which they held essential to a brave and free state. So far was this carried, that it was only by the Praetorian fiction of a stip- ulation being made to that effect, that the owner of a house that 1 See supra, § 13. 2 See 2 Wh. Cr. L. § 1011, 2529. 86 BOOK I.] CAUSAL CONNECTION. [§ 83. by its defective construction caused damage to the property of an- other, could be made to pay for such damage. ^ No doubt the Ro- man principle just stated, so far as it limits our legal duties to the discharge of the offices specifically assigned to us by law, is essen- tial alike to high public spirit and to healthy economical progress. And no doubt that so far as concerns merely moral duties, the principle of the Roman law in this respect has been adopted by all modern civilized jurisprudences. No public enterprise (f. g. a railroad when in working order) can be carried on safely if every one who conceives something is wrong in it is required to rush in and rectify the supposed mistake. No man could courageously and consistently discharge his special office if all other persons were made both his coadjutors and overseers. Industry would cease if the consequences of idleness were averted by making alms- giving compulsory. Hence, unless the duty is legal, no liability is imputable for its neglect. § 83. But otherwise when the omission is a defect in the dis- charge of a legal duty. — For it is of the essence of negligence to omit to do something that ought to be done. " Suppose that there is, to my knowledge, a peculiar danger in the nature of a trap — e. g. a concealed pit — on the premises, of which I neg- lect to warn the person who I know is going there by my per- mission ; it is obviously unimportant whether the pit was dug by my orders, or whether it was there when I myself came to the premises, and I have only neglected to have it fenced." ^ A physician, to take another illustration, who undertakes to attend a patient and omits to give a necessary prescription, is guilty of a positive malfeasance ; and so of the carpenter who omits properly to fasten a roof so that the tiles fall on the street ; and of the engine-driver who omits to give notice to an approach- ing train, so that a collision ensues. An omission, therefore, may be a juridical cause ; but it is so, not because it is a negation, but because it is a positive, though it may be a negligent wrong.^ ^ See Hasse, § 3. mittendo, c'est un fait dolosif on line 2 Cotton V. Wood, 8 C. B. (N. S.) imprudence. Je nc reponds pas tou- 568. Saunders on Neg. § 50. Infra, jours, envors tout le nionde, de la § 345-53. faute in omiltendo. D'al)ord je n'en ^ " A un autre point de vue," says rc'])onils point envers colui qui n'est Demangeat (Cours. de Droit Romain, pas dojJi nwn rrrancior. Ainsi. le feu III. 445, Paris, 1866), " on distingue la vient de prendre k votre niaison ; je faute in omiUendo et la faute in com- m'en aper^ois, je pourrais facilement 87 §84.] OMISSIONS [book I. § 84. Omissions in a municipal government to supply water^ and the relation of such omission to a non-extinguished fire. — On this point Sharswood, J.,i says : " It may be doubted whether it wonld be a ease to which the maxim causa proxlma non remota spectatur has any appHcation. The purpose of the reservoir be- ing to extinguish fires, and the fire having been shown not to have been extinguished in consequence of the non-performance of the duty imposed, it would be no answer, perhaps, to say that the proximate cause of the injury was the fire, and the want of water only the remote cause. If it were made the duty of a municipal- ity to station a police officer at a particular corner, to protect the foot-passengers from being run over by passing vehicles, it may I'eteindre et vous preserver ainsi d'une grande perte; mais je reste tranquille, je ne me donne pas meme la peine d'appeler au seeours ; je ne vous dois point des dommages-interets, quoiqu'il ne n'ait manque qu'un peu de bonne volonte pour conserver votre chose. Au contraire, la culpa in committendo, le fait domniageable, j'en reponds en general envers tout le monde. " Du reste, pour m'en rendre re- sponsable, tantot on exige qu'il y ait eu dol de ma part, comme dans le cas defurtum; tantot on se contentede la simple imprudence, de la culpa levis- sirna, comme dans le cas de la loi Aquilia. En second lieu, meme en- vers mon creancier, je ne reponds pas toujours de la culpa in omittemlo. Si j'ai promis h Titius sur stipulation de lui donner I'esclave, Stiohus, et que, dans un maladie dont Tesclave est ensuite atteint, je le laisse mourir faute de soins, le juriconsulte Paul decide que je ne suis pas tenu envers Titius. L. 91. pr. D., De verhor. oblig. (45. 1.) Voj. ci-dessus, p. 208. Mais, lorsqu'au lieu d'un stipulant il s'agit d'un creancier qui a contre moi une action honae Jidei, en general il pent me demander compte de ma faute in omittendo : en d'autres termes, je dois apporter de la diligence h I'ex- ecution du contrat. C'est de ce cas que nous avons specialement k nous occuper ici. " Dans la faute in omittendo, il peut y avoir trois degres, savoir : dol, faute consideree in absiracto, faute consid- eree in concreto. Nous savons quand il y a dol. La faute consideree in ab- stracto c'est I'omission des soins qu'ap- porte habituellement k ses affaires un bonus paterfamilias ; dire qu'un certain debiteur repond de la faute in ab- siracto, c'est dire qu'il sera tenu s'il n'a pas fait ce qu'eut fait k sa place un homme soigneux en general. Au contraire, la faute consideree in con- creto, c'est I'omission des soins que le debiteur lui-meme apporte habituelle- ment dans ses propres affaires : dire qu'un certain debiteur repond de la faute in concreto, c'est dire qu'il sera tenu s'il n'a pas apporte a I'accom- plissement de son obligation les memes soins qu'il apporte habituellement quand il s'agit de ses propres affaires. Nous allons voir que, suivant la na- ture du contrat qui est intervenu, le debiteur repond seulement de son dol ou de la faute consideree in concreto ou enfin de la faute considere in ab- stracto." 1 Grant v. City of Erie, 69 Pa. St. 410. BOOK I.] CAUSAL CONNECTION. [§ 85. be doubted whether it would be an answer to an action to say that the cause of the injury was the horse and wagon and not the absence of the officer. But if the municipality were vested with the authority to employ and keep on foot a sufficient police, no one can surely pretend that a foot-passenger run over by a wagon could sue the corporation for damages, even though he should be able to show that they had formerly kept an officer at that place for that purpose and had withdrawn him, or that he had been guilty of negligence in the performance of his duties. That would be a case precisely analogous to the one now before us." ^ III. DISTINCTION BETWEEN CONDITIONS AND CAUSES. § 85. At this point emerges the distinction between conditions and causes, — a distinction the overlooking of which has led to much confusion in this branch of the law. What is the cause of a given phenomenon ? The necessitarian philosophers who logic- ally treat all the influences which lead to a particular result as of equal importance, and who deny the spontaneity of the human will, tell us that the cause is the sum of all the antecedents. Thus, for instance, a spark from the imperfectly guarded smoke-pipe of a locomotive sets fire to a hay-stack in a neighboring field. What is the cause of this fire ? The sum of all the antecedents, answers Mr. Mill, the ablest exponent of the necessitarian philosophy. Apply this concretely, and it would be difficult to see how any antecedent event can be excluded from taking a place among the causes by which the fire in question is produced. Certainly we must say that either if the railroad in question had not been built (an event depending upon an almost infinite number of conditions precedent, among which we can mention the discovery of iron, of steam, and of coal), or the hay-stack in question had not been erected (to which there is also an almost infinite number of neces- sary antecedents, the failure of any one of which would have caused the failure of the hay-stack), no fire would have taken place. The Law, however, does not concern itself with refinements such as these. Its object is to promote right and redress wrong ; and without undertaking to propound any theory of the human will, it contents itself with announcing as an indisputable fact that by making a human " antecedent " punishable for a wrongful act, such "antecedent," if not restrained from committing the ^ See also remarks on this point, infra, § 251-260. 89 § 85.] NEGLIGENCE : [BOOK I. wrong, may be compelled to redress it. Whatever may be said of other " antecedents," the law, therefore, declares that a ra- tional being can sometimes be made by fear or interest to change his purposes, and sometimes either to desist from a wrong or take measures to repair it ; and acting on this assumption, the law, when any injury is done, betakes itself to consider whether there is any rational being who could, if he had chosen, have prevented it, but who either seeing the evil consequences, or refusing to see them, has put into motion, either negligently or intentionally, a se- ries of mechanical forces by which the injury was produced. This is the basis of the distinction between conditions and causes.^ No doubt all the antecedents of a particular event are conditions without which it could not exist. No doubt, in view of one or another physical science, conditions not involving the human will may be spoken of as causes. No doubt, for instance, in the eye of an engineer an imperfect spark-fender may be treated as the cause ; or the use of inappropriate fuel, or the condition of the weather, which made the hay-stack peculiarly inflammable. But, except so far as these conditions are capable of being moulded by human agency, the law does not concern itself with them. Its object is to treat as causes only those conditions which it can reach, and it can reach these only by acting on a responsible human will. It knows no cause, therefore, except such a will ; and the will, when thus responsible, and when acting on natural forces in such a way as through them to do a wrong, it treats as the cause of the wrong. As a legal proposition, therefore, we may consider it established, that the fact that the plaintiff's injury is 1 " In whatever proportion our pearance of a comet, or the fall of an knowledge of physical causation is aerolite, may be reduced by the ad- limited, and the number of unknown vance of science from a supposed natural agents comparatively large, supernatural to a natural occurrence ; in the same proportion is the proba- and this reduction furnishes a reason- bility that some of those unknown able presumption tbat other phe- causes, acting in some unknown man- nomena of a like character will in ner, may have given rise to the alleged time meet with a like explanation, marvels. But this probability dimin- But the reverse is the case with re- ishes when each newly discovered spect to those phenomena which are agent, as its properties become known, narrated as having been produced by is shown to be inadequate to the pro- personal agency." H. L. Mansel : Es- duction of the supposed effects, and say on Miracles, § 11. See this fur- as the residue of unknown causes, ther illustrated in Porter on the Hu- which might produce them, becomes man Intellect, § 639. smaller and smaller The ap- 90 BOOK I.] CAUSAL CONNECTION. [§ 86. preceded by several independent conditions, each one of which is an essential antecedent of the injury, does not relieve the person by whose negligence one of these antecedents has been produced from liability for such injury.^ § 86. Illustrations of the distiyiction between conditions and causes. — Illustrations of the important distinction just stated will hereafter frequently appear. At present the following may be specifically noticed : — Where an injury to a passenger on a highway is occasioned partly by ice with which the road is covered, and partly by a de- fect in the structure of the road, the parties responsible for the defectiveness of the road are liable, notwithstanding the fact that the ice contributed to the injury .^ The ice was a condition of the injury ; the negligent construction of the road its cause.^ So in a case where the evidence was that a sign hung over a street in a city, with due care as to its construction and fastenings, but in violation of a city ordinance which subjected its owner to a penalty for placing and keeping it there, was blown down by the wind in an extraordinary gale, and in its fall a bolt which was" part of its fastenings struck and broke a window in a neighboring building. It was ruled that the owner of the sign was liable for the damage sustained by the window. The wind was a co7idition of the injury ; the unlawful arrangement of the sign its juridical cause. " It is contended," said Chapman, C. J., in giving the opinion of the court, . . . . " that the act of the defendant was a remote, and not a proximate cause of the injury. But it can- not be regarded as less proximate than if the defendant had placed the sign there while the gale was blowing, for he kept it there till it was blown away. In this respect, it is like the case of Dickinson v. Boyle, 17 Pick. 78. The defendant ~ had wrong- fully placed a dam across a stream on the plaintiff's land, and allowed it to remain there, and a freshet came and swept it away ; and the defendant was held liable for the consequential 1 Palmer v. Andover, 2 Cush. 600 ; bott, 32 Me. 46 ; Moulton v. Inhab. of Hunt V. Pownall, 9 Vt. 411 ; Allen v. Sanford, 51 Me. 127. See this doc- Hancock, 16 Vt. 230 ; Winship t>. En- trine applied to contributory negli- field, 42 N. H. 197; City of Atchison gence, infra, § 303. V. King, 9 Kansas, 558 ; Marble v. "^ City of Atchison v. King, 9 Kan- Worcester, 4 Gray, 395 ; Murdock v. sas, 550. Infra, § 980. Warwick, 4 Gray, 178; Rowell v. « Salisbury v. Herchenroder, 106 Lowell, 7 Gray, 100; Morse v. Ab- Mass. 458. Infra, § 980. 91 §88.] NEGLIGENCE : [BOOK I. damage. It is also, in this respect, like the placing of a spout, by- means of which the rain that subsequently falls is carried upon the plaintiff's land. The act of placing the spout does not alone cause the injury. The action of the water must intervene, and this may be a considerable time afterwards, yet the placing of the spout is regarded as the proximate cause. So the force of gravita- tion brings down a heavy substance, yet a person who carelessly places a heavy substance where this force will bring it upon another's head does the act which proximately causes the injury produced by it. The fact that a natural cause contributes to produce an injury, which could not have happened without the unlawful act of the defendant, does not make the act so remote as to excuse him. The case of Dickinson v, Boyle rests upon this principle." ^ IV. RESPONSIBLE HUMAN AGENT. § 87. But a man, to be a juridical cause either through his acts or omissions, must be responsible. If he is irresponsible, he is no longer a cause, but he becomes a condition, — i. e. he is ranked among those necessitated forces, which like weapons of wood or stone, are incapable of moral choice, but act only as they are employed or impelled. The cause of the event to which any of these classes of forces is related as conditions must in every case be a responsible originator. The question, therefore, to be here practically considered is, who are irresponsible. And among such persons we may mention : — § 88. 1. Persons incapable of reason. — As to these there is no question. Neither an insane person, nor an infant, at least before seven, can be a juridical cause.^ And the same reasoning applies to persons so young and inexperienced as to be unable to exercise intelligent choice as to the subject matter.^ * "See also Woodward v. Aborn, Hunter, 46 Penn. State, 192; Polack 35 Maine, 271, where the defendant v. Pioche, 35 CaL 416, 423." wrongfully placed a deleterious sub- ^ Bartonshill Coal Co. v. Reid, 3 stance near the plaintifl''s well, and Macq. 266; Bartonshill Coal Co. v. an extraordinary freshet caused it to McGuire, 3 Macq. 300 ; Grizzle v. spoil the water ; also Barnard v. Poor, Frost, 3 F, & F. 622 ; Coombs v. New 21 Pick. 378, where the plaintifTs Bedford Cord, Co. 102 Mass. 572; property was consumed by a fire care- Chic. & Alt. R. R. 58 111. 226 ; and lessly set by the defendant on an ad- cases cited infra, § 306-7. joining lot ; also Pittsburg City v. 8 gee Coombs v. New Bed. Cord. Grier, 22 Penn. State, 54; Scott v. Co. 102 Mass. 572; Grizzle w. Frost, 92 BOOK I.] CAUSAL CONNECTION. [§ 89. The Roman law, which is to the same effect, bases this doctrine on the necessity of will to causation. Whoever is incapable of diligentia, it declares, cannot be charged with negligentia. Hence neither furiosus nor infans could be held liable under the Aqui- lian law.i Liability of the infant, however, as is shown by Per- nice,^ comes with capacity ; when he is doli or culpae cajyax he is liable. But this is not peculiar to the Aquilian law. In respect to the performance of contracts, he only is liable for culpa who is culpae capax ; and the same principle extends to dolus and culpa lata. Thus : — " An in pupillum, apud quern sine tutoris auctoritate deposi- tum est, depositi actio detur quaeritur, sed probari oportet, si apud doli mali capacem deposueris, agi posse si dolum commisit." ^ It is true a nuisance on the land of an infant or an insane person may be abated by indictment or by injunction. But no suit can be sustained for negligence, of which it is one of the postulates that a person destitute of reason, whether from infancy or insanity, is not guilty of neglecting that which he has no men- tal capacity to perceive or do. § 89. 2. Persons under compulsio7i. — So, also, a person un- der compulsion cannot be viewed as a juridical cause. What he does, he does pvirely as the mechanical agent of the person by whom he is directed ; and he can no more be charged with the liabilities of juridical causation than could the stream by which a meadow is flooded, or the spark by which a hay-stack is kindled.* Such, also, is the rule where the plaintiff is put into a position by the defendant from which he (the plaintiff) cannot escape, and in which he without blame to himself sustains damage. Tliis is illustrated by a Pennsylvania case, in which the defendant negli- gently blocked up the lock of a slackwater, keeping the plaintift"s boats in the open stream, where, on the rising of the stream, they were swept over the dam ; upon which facts the defendant was held liable for the damages thus sustained.^ And so also in the 3 F. & F. 622; Bartonshill Coal Co. 4 gee Greenloaf i-. III. Cent. R. K. V. McGuire, 3 Macq. 300; and cases 29 Iowa, 47; Snow v. Hoiisatonic Co. cited infra, § 216, 308; Railroad Co. 8 Allen, 441 ; Heed v. Northfiold, 13 V. Gladuian, 15 Wallace, 401. See, Pick. 98. particularly, infra, § 309. 5 Scott r. Hunter, 10 Wri.^dit Pa. 1 L. 5. § 2. h. t. St. 192 ; Johnson v. W. C. & P. R. R. 2 Op. cit. p. 53. 70 Pa. St. 357. Infra, § 304. 8 L. 1. § 15. dep. 16. 3. See § 309. 93 §91.] negligence: [book I. cases hereafter fully cited,i where a person paralyzed with fright chooses the most dangerous of two alternatives. § 90. 3. Unconscious agents? Sending explosive compound through carrier. '■ — An explosive compound, negligently packed, is put into the hands of a carrier to deliver, the carrier being ig- norant of its contents. Who, in case of the package being left at the place of delivery, and there exploding, is liable for the injury produced by the explosion ? Had the carrier known that the package was in this dangerous condition, then he would become liable, on the principle that he who negligently meddles with a dangerous agency is liable for the damage. But if he is ignorant of the contents of the package, he is no more liable than is the car by which they are carried.^ No matter how numerous may be the agencies through which such a package is transmitted, the original forwarder, in case of the carriers' being ignorant and innocent, continues liable, while the carriers are free from liability. When, however, a vendee or agent knows the explosive character of a compound (e. g. gunpowder), and then negligently gives it to a third person, who is thereby injured, the causal connection between the first vendor's act and the injury is broken.^ § 91. Negligent sale of poison. — So with regard to the neg- ligent sale of poison. If B. negligently sells poison, under the guise of a beneficial drug, to A., he is liable for the injury done to A. ; or, to those to whom A. innocently gives the poison. But suppose that A. has grounds to suspect that the drug is poisonous, and then, instead of testing it, sells it or gives it to C. ? Now, in such a case there can be no question that A. is liable for the dam- age caused by his negligence ; though if A. is unconscious of the mistake, and acts merely as the unconscious agent of B., then there is no causal connection between A.'s agency and the injury, and B. is directly liable to C.^ Beyond this it is not safe to go. It is true that in a New York case,^ the liability was pushed still further ; but wherever an intelligent third party comes in, and negligently passes the poison to another, this breaks, as will here- after be shown, the causal connection, and makes such interven- ing negligence the juridical cause. The same may be said with 1 Infra § 93, 304. < Carter v. Towne, 103 Mass. 507, 2 See, as to persons deprived of ^ Norton v. Sewall, 106 Mass. 143. their senses, infra, § 307. 6 Thomas v. Winchester, 2 Selden, 8 See infra, §854-5-6. 397. 94 BOOK I.] CAUSAL CONNECTION. [§ 93. regard to the leaving, in an insecure state, the platforms of a place of public resort. A person visiting a private house may be ex- pected to look about him before he takes a step. Those passing through a public avenue, on the other hand («. ^. a railwa}' depot), have a right to move rapidly, trusting that the open way they are invited to tread is safe. It is natural for them under such cir- cumstances to move boldly and confidently ; and if tlirough neg- ligence in construction of a platform or step injury ensues, the negligent owner is liable for the injury. ^ § 92. Criving of loaded gun to another. — So, again, with re- gard to the giving of a loaded gun to another. If the gun be given by B. with due warning to A., a person experienced in the use of fire-arms, who so negligently handles the gun that it ex- plodes and injures C, then A., and not B., is liable. But if the loaded gun be given to an unconscious child, and the child, not knowing what the gun is, handles it so that it explodes, and in- jures a third person, then the liability is not attached to the child, but is imputable to him who gives the child the gun.^ § 93. Injury encountered hy the plaintiff when losing self- control through the defendants negligence. — Suppose the plaintiff, when on a coach, jumps off to avoid danger, acting unwisely in so doing, yet in confusion of mind produced by the defendant's reckless driving ? Or suppose that the plaintiff, when legitimately on a railway track, loses his presence of mind through the unex- pected and irregular course of a train which is negligently driven on the track ; and suppose that when thus confused, he unwisely but unintentionally runs into instead of out of danger ? Is the plaintiff, in either of these cases, the juridical cause of an injury thus produced, or is the negligent driver the cause ? Certainly the latter ; for the plaintiff, on the assumption that he is at the time incapable of responsibly judging, is not a responsible, inde- pendent agent, capable of breaking the causal connection between the defendant's negligence and the injury. It was the defendant's negligence that put the plaintiff in a position in which he was forced to make so perilous a choice ; and the defendant is liable for the consequences."^ 1 See infra, § H21. N. Y. Cent. R. R. 31 N. Y. 314; 2 Dixon V. Bell, 5 M. & S. 198. Frink v. Potter, 17 111. 40G ; Adams v. 8 See infra, § 377; Coulter v. Am. Lancas. R. R. 17 W. R. 885; Sears Un. Exp. Co. 5 LansinfT, 67 ; Buel v. v. Dennis, 105 Mass. 310; Stevens 96 § 95.] NEGLIGENCE. [BOOK I. § 94. Self-injury done in fright. — Another case that falls under this head is that of injury a person may inflict on himself in fright. Suppose that by the negligence of A., B. is so fright- ened that he attempts to fly, and so doing injures himself; is A. liable ? He certainly is, if B., in consequence of A.'s act, has lost his self-control so as to be irresponsible.^ There can be no question that where one person pursues another with such violence that the latter, in seeking to escape, is drowned in a stream into which he is forced to precipitate himself, the former is guilty of homicide ; ^ and there is no reason why the same principle should not be applied to actions for negligence. Hence, where the de- fendant chased with an axe a boy who in his fright ran uncon- sciously against a cask of wine and broke it, the defendant was held liable for the injury thus incidentally produced.^ So a person thrown from a bridge into a rapid river may be able to swim, and if in full possession of his faculties to save himself ; but if in the confusion and terror of the moment he loses his self-command and is drowned, the person throwing him in the water is liable.^ So, if a person who has his clothes taken from him on a cold night is so numbed and enfeebled that he cannot seek refuge, and hence is frozen to death, the assailant is as liable for this death through freezing as he would be if the deceased had been tied to a stake in the open air in such a way that escape was impossible.^ § 95. Persons acting precipitately and under unusual excite- ment. — More difficult questions arise when an injury is produced by persons acting precipitately and under excitement, which pre- cipitation and excitement were caused by the negligent act of the defendant. In the leading case on this subject,^ the evidence was that the defendant, on the evening of the fair day at Mel- bourne Port, October 28, 1770, " threw a lighted squib made of V. Boxford, 10 Allen, 25 ; Babson v. Snow v. Housatonic R. R. 8 Allen, Rockport, 101 Mass. 93; Lund v. 441 ; R. v. Williamson, 1 Cox C. C. 97; Tyngsborough, 11 Cush. 563 ; Indian- and cases cited infra, § 218, 219, 304. opolis R. R. V. Carr, 35 Ind. 510; 2 ^yh. c. L. § 941 a. Greenleaf v. 111. Cent. R. R. 29 Iowa, ^ Vanderburg v. Truax, 9 Deuio, 4 7 ; Snow v. Housatonic Co. 8 Allen, 46 7. 441 ; Reed v. Northfield, 13 Pick. 98, * L. 5. § 7. D. ad Leg. Aquil. and cases cited infra, § 304. 8 L. 14. § 1. D. 19. 5. 1 See R. V. Pitts, C. & M. 284 ; ^ g^ott v. Shepherd, 2 W. Blacks. Frink v. Potter, 17 111.406; Green- 892; 1 Smith's Leading Cases, 549, leaf V. 111. Cent. R. R. 29 Iowa, 47; 7th Am. ed. 755. 96 BOOK I.] CAUSAL CONNECTION. [§ 95. gunpowder, from the street into the market-house, which is a covered building supported by arches, and inclosed at one end, but open at the other, and both the sides, where a large concourse of people were assembled ; which lighted squib, so thrown by the defendant, fell upon the standing of one Yates, who sold ginger- bread, &c. That one Willis, instantly^ and to prevent injury to himself and the said wares of the said Yates, took up the said lighted squib, from off the said standing, and threto it across the said market-house, where it fell upon another standing there of one Ryal, tvho sold the same sort of ivares, who instantly, and to save his oum goods from beitig injiired, took up the said lighted squib from off' the said standing, and then threw it to another part of the said market-house, and in so throtving struck the ^^Iciintiff, then in the said market-house, in the face therewith, and the com- bustible matter then bursting, put out one of the plaintiff's eyes." That there was a causal connection between the defendant's act and the plaintiff's hurt was apparently conceded in the argument. The only question that arose was as to whether the proper rem- edy was trespass. The majority of the court held that tres- pass would lie. " It is like," said Nares, J., " the case of a mad ox turned loose in a crowd. The person who turns him loose is liable in trespass for whatever mischief he may do." Black- stone, J., argued that the damage was consequential, and there- fore case was the remedy, if there was any. But he went be- yond this. " The tortious act," he said, " was complete when the squib lay at rest upon Yates's stall. He, or any by-stander, had, I allow, a right to protect themselves by removing the squib, but should have taken care to do it in such a manner as not to endan- ger others This differs from the cases of turning loose a wild beast or a madman. They are only instruments in the hand of the first agent. But it is said that the act is not complete, nor the squib at rest, till after it is spent or exploded. It certainly has a power of doing fresh mischief, and so has a stone that has been thrown against my windows, and noiv lies still ; yet if any person gives that stone a netv motion, and does farther mischief with it, trespass tvill not lie for that against the original thrower. No doubt but Yates may maintain trespass against Shepherd, and according to the doctrine contended for, so may Ryal and Scott. Three actions for one single act ; nay, it may be extended ad in- finitum. If a man tosses a foot-ball into the street, and after be- 7 97 § 95.] NEGLIGENCE : [BOOK I. ing kicked about by one hundred people, it at last breaks a tradesman's window, shall he have trespass against the man that first produced it ? Surely only against the man that gave it that mischievous direction. But if it is said Scott has no action against Shepherd, against whom must he seek his remedy ? I give no opinion whether case would lie against Shepherd for the conse- quential damage; though, as at present advised, I think upon the circumstances it would. But I think in strictness of law tres- pass would lie against Ryal the immediate actor in this unhappy business. Both he and Willis have exceeded the bounds of self- defence, and not used sufficient circumspection in removing the danger from themselves. The throwing it across the market- house, instead of brushing it down, or throwing it out of the open sides into the street (if it was not meant to continue the sport, as it is called), was at least an unnecessary and incautious act." Gould, J., and De Grey, C. J., agreed with Nares, J. De Grey, C, J., said: " I agree with my brother Blackstone as to the principles he has laid down, but not in his application of those principles to the present case. The real question certainly does not turn upon the lawfulness or unlawfulness of the original act ; for actions of tres- pass will lie for legal acts when they become trespasses by accident, as in the case cited for cutting thorns, lopping off a tree, shooting at a mark, defending one's self by a stick which strikes another be- hind, &c. They may also not lie for the consequence even of illegal acts, as that of casting a log into the highway, &c. But the true question is, whether the injury is the direct and immediate act of the defendant, and I am of opinion that in this case it is. The throw- ing the squib was an act imlawf ul, and tending to affright the by- stander. So far mischief was originally intended ; not any partic- idar mischief, but mischief indiscriminate and wanton. What- ever mischief therefore follows, he is the author of it And though criminal cases are no rule for civil ones, yet in trespass I think there is an analogy. Every one who does an unlawful act is considered the doer of all that follows ; if done with a deliberate intent, the consequence may amount to murder ; if incautiously, to manslaughter. Fost. 261. So too in 1 Ventr. 295 ; a person break- ino- a horse in Lincoln's Inn Fields hurt a man ; held that tres- pass lay ; in 2 Lev. 172, that it need not be laid scienter. I look upon all that was done subsequently to the original throwing as a continuation of the first force and first act, w^liich will continue 98 BOOK I.] CAUSAL CONNECTION. [§ 96. till the squib was spent by bursting. And I think that any in- nocent person removing the danger from himself to another is justifiable. The blame lights upon the first thrower. The new direction and new force flow out of the first force, and are not a new trespass. The writ in the Register, 95, a, for trespass in maliciously cutting down a head of water, which thereupon flowed down to and overwhelmed another's pond, shows that the immedi- ate act needs not be instantaneous, but that a chain of effects connected together will be sufficient. It has been urged that the intervention of a free agent will make a difference ; but I do not consider Willis and Ryal as free agents in the present case, but acting under a compulsive necessity for their own safety and self- preservation." It is clear, therefore, that the defendant was held liable on the ground that the intermediate parties by whom the squib was passed on acted without mischievous design, in sudden terror, the object being to rid themselves as quickly as possible of a dangerous missile which might the next moment explode. But this exception was perilously extended in New York in a case 1 in which the evidence was that the defendant, who had gone up in a balloon, alighted in the plaintiff's garden. A number of persons hearing his cries, and seeing this remarkable descent, rushed into the garden and injured it. The defendant was held by the court to be liable for the injury done to the garden. Un- doubtedly if negligence was imputable to the balloonist ; and if it could be shown that on his descent he was in such extreme danger that, from instinctive humane impulse, persons passing by rushed in precipitately in order to save him, no opportunity being given to them for reflection, he might be viewed as the juridical cause of the damage inflicted by them on the garden, they being regarded as unconscious agents. But if they entered from curiosity, and trampled down fence, walks, and plants, simply to be in at a sight, not only were they themselves liable directly to the plaintiff for their inconsiderate and negligent act, but the balloonist's negli- gence, on principles presently to be vindicated, was not the juri- dical cause of the damage inflicted directly by these intruders.*- § 96. Hence, rejecting the conclusion reached in New York in the case just mentioned, we must accept that of the supremo court of Pennsylvania, in a suit^^ where the evidence was that the 1 Guille v. Swan, 19 Johns. 380. » Fairbanks v. Kerr, 70 Penu. St. 2 Sec infra, § 304. 86. 99 §96.] NEGLIGENCE : [book I. defendant mounted a pile of flag-stones in a street to make a public speech, and a croAvd of hearers gathered about him, some of whom also got on the stones and broke them, and where it was ruled by the court that the speaker was not liable, as a matter of law, for the breaking of the stones by the by-standers.^ 1 " The court below," said Agnew, J., " held that if the persons, whose combined weight broke down the stones, were collected together by the act of the defendant in making the speech in the street, he would be re- sponsible in an action on the case for the consequential damages. This instruction was not qualified. The court told the jury that a proximate cause is one which is a first and direct power producing the result, and a re- mote cause is one removed from the direct, and may be called the second- ary cause ; but said nothing upon the character of the act which caused the injury, and gave no instruction to as- certain whether this act was a natural or probable consequence of making the speech in the street, or one which might have been readily foreseen by the defendant. In eifect, such an unqualified instruction would expose the defendant to all the consequences of his street speech, — the accidental and even the wilful acts of the by- standers gathered there by it, as well as the natural and probable conse- quences which he might have foreseen. Thus, if one of the crowd should by accident thrust his elbow through a window-pane, or inadvertently tread upon and break an article of show be- side a door, or even if one had his pocket picked, the unfortunate speaker would be held liable for all these con- sequences of his speech. The court, therefore, really decided as a question of law, a matter of fact properly be- longing to the jury, to wit: that the mounting of the pile of stones by the by -standers was the natural and prob- 100 able consequence of the speech in the street, which the defendant ought to have, or might have, foreseen. This was an error : the question was a fact dependent on all the circumstances. For example, had the second pile been two hundred feet or a square away from the speaker, no one could say that by any fair reasoning he might have expected such an accident to happen. The maxim, causa proxima 71071 remota spectalur, governs cases ot this kind, and yet its application is not always easy. Many cases illus- trate, but none define, what is an im- mediate or what is a remote cause. Indeed, such a cause seems to be in- capable of any strict definition which will suit in every case. It was said in Morrison v. Davis & Co. 8 Harris, 171, the general rule is, that a man is answerable for the consequences of a fault only so far as the same are nat- ural and proximate, and as may, on this account, be foreseen by ordinary forecast, and not for those which arise from a conjunction of his fault with other circumstances that are of an ex- traordinary nature. Of the first branch of this proposition, Scott v. Hunter, 10 Wright, 192, is an illustration. There- fore a defendant who unnecessarily occupied the passage-way to the locks of one of the dams of the Mononga- hela slackwater, from the afternoon of one day till the afternoon of the fol- lowing day, holding the boats of the plaintiff into the stream, while it was rising rapidly, until the flood carried them over the dam, was held to be liable for the injury. The court be- low thought the flood was the proxi- BOOK I.] CAUSAL CONNECTION. [§ 97. V. ORDINARY NATURAL SEQUENCE. § 97. Mechanical sequeyices. - ordinary natural sequence from quences," we may regard, — mate cause of the injury, and the occupancy of the access to the locks by the defendant was too remote ; but this court reversed the judgment. The question, whether the defendant ought not to have apprehended the danger to the plaintiff's boats when the stream was rising rapidly, was not submitted to the jury ; and hence, said Mr. Justice Strong, here, we think, the court erred in assuming to decide as a matter of law that the wreck of the boats was not the natural consequence of the wrongful act of the defendant in blocking up the locks and channel of the river, and holding the boats of the plaintiif so long ex- posed to the force of the current. It was a natural consequence, he says, if it should have been foreseen, or if it would have been guarded against by men of ordinary prudence, using their own rights with proper regards to those of others. " On the other hand, Morrison v. Davis & Co. supra, is an illustration of the second branch of the proposi- tion. There the accident happened in consequence of the boat being over- taken and sunk by an extraordinary flood at Piper's Dam, on the Juniata, but which the boat would have passed safely had it not been delayed by the defendants using a lame horse. " This court held that the proximate cause destroying the boat and cargo was the flood, and that the use of the lame horse, which led to the unforeseen conjunction of the happening of the flood and of the boat's being at the dam at the same time, was too remote a cause to create a liability for the loss - The injury must proceed in the neclect. As " natural se- of the plaintifTs goods. Doubtless the delay produced by using the lame horse was a cause of the accident : but it was not a probable cause, for it could not be foreseen that it would unite with the flood at a place of dan- ger to produce it. " In McGrew v. Stone, 3 P. F. Smith, 441, it was said by myself, as the result of the cases, that the maxim, causa proximo non remota spectatur, means but this : We are not to link together, as cause and effect, events having no probable connection in the mind, and which could not, by pru- dent circumspection and ordinary thoughtfulness, be foreseen as likely to happen in consequence of the act in which we are engaged. It may be true that the injury would not have occurred without the concurrence of our act with the event which imme- diately caused the injury ; but we are. not justly called to suffer for it, unless the other event was the efft'ct of our act, or was within the j)robable range of ordinary circumspection, when en- gaged in the act. But when we are engaged in an act which the surround- ing circumstances indicate may be dangerous to others or their interests, and when the event whose concurrence is necessary to make our act injurious is one we can reailily see may occur under the circumstances, and unite with the act to inflict an injury, we are culpable if we do not take all the care which prudent circinnspection would suggest to avoid the injury. " This subject of near ami remote consequences has been largely dis- cussed by the present Chief Justice in 10 L §97.] NEGLIGENCE [1500K I, 1. Those sequences which are in conformity with well known material forces. — Among these we may mention the following : The gate of a dam is negligently left open, and the water pours out during the night and floods a meadow. Here the flooding of the meadow is the result of the well known material law that water will descend from a higher to a lower level. A person who meddles with water under these circumstances is presumed to know this law, and is responsible for mischief accruing through his negligence.^ The switch of a railroad is negligently left open in front of an approaching train. That the train, on reaching the switch, should be deflected by this check from its course, is also in obedience to a well known material law ; and hence the negligent switch-tender, who ought to know this law, is liable for the con- sequences of his neglect.^ A fire is kindled in a field in a strong the recent case of Pennsylvania Rail- road Co. V. Kerr, 1 2 P. F. Smith, 333. It is certain, he says, that in almost every considerable disaster, the result of human agency and dereliction of duty, a train of consequences generally ensues, and so ramify as more or less to affect the whole community. In- demnity cannot reach all these re- sults, although parties suffer who are innocent of blame. In that case the railroad company was held not to be responsible for the ulterior conse- quences to other houses caused by the negligent burning of a warehouse on the line of their road from the sparks of one of their engines. In Fleming V. Beck, 12 Wright, 313, remarks per- tinent to this subject may be found. Among other things it was there said, that in strict logic it may be said that he who is the cause of loss should be answerable for all losses which flow from his causation. But in the prac- tical workings of society the law finds in this, as in a variety of other mat- ters, that the rule of logic is impracti- cable and unjust. It is impossible to compensate for all losses, and the law, therefore, aims at a just discrimina- tion which will impose upon the party 102 causing them the proportion that a proper view of his acts and the at- tending circumstances would dictate. " In view of these principles it would be difficult to decide, as a legal con- clusion, that the defendant is liable for the breaking of the stones in ques- tion by the by-standers. It cannot be said with judicial certainty, that when he stopped to make his speech in the street he must have foreseen, as the natural and probable consequence of his act, the persons collecting together to listen to him would mount the pile of stones; and even, if some of them would, that so many would as by their collected weight might break some of the stones. The lowermost stones in the pile were already trusted by the plaintiff" with the weight of the upper- most. Height of pile, strength of grain, distance from the speaker, num- ber of by-standers, and perhaps other circumstances, all would enter into the question of the probability of the injury. The question was, therefore, one of fact for the jury, and not of law for the court." ^ See Collins v. Middle Level Com- mis., L. R. 4 C. P. 279. Infra, § 934. 2 Infra, § 802. BOOK I.] CAUSAL CONNECTION. [§ 98 a. wind. The field is covered with thick dry grass which extends to a neighboring cottage. The fire thus kindled, no -effort t». Hubbardstown, 100 Mass, 50 ; 557 ; Murdock v. Warwick, 4 Gray, infra, § 983. 478; Sneesby v. Lancashire & Y. R. ^ Kelley v. Fond du Lac, 31 Wise. R., L. R. 9 Q. B. 263; Hill v. New 180. See infra, note 5, where this River Co. 2 Y. & J. 391 ; Lawrence t;. case is quoted at large. Jenkins, L. R. 8 Q. B. 274; infra, ■* See supra, § 97. § 983. 5 See Marble v. Worcester, 4 Gray, 2 Houfe V. Fulton, 29 Wise. 296; 397; Davis r. Dudley, 4 Allen, 557; 106 BOOK I.] CAUSAL CONNECTION. [§ 106. § 106. Horse sivitching his tail over the reins. — It has been held in Massachusetts that the Kability of a town for injuries resulting Titus V. Northbridge, 97 Mass. 258 "In Massachusetts there The authorities are so numerous, and seems to be some conflict of decision discuss the question from such various upon the point. In Pahiier v. An- standpoints, that I do not attempt to classify them. It may be generally said, that the results in New Hamp- shire and Vermont do not materially differ from those reached in the text. Winship V. Enfield, 2 N. H. 197; Clark V. Barrington, 41 N. H. 44; Tucker v. Henniker, 41 N. H, 317; Norris v. Litchfield, 35 N. H. 276; Hunt V. Pownal, 9 Vt. 411 ; Kelsey v. Glover, 15 Vt. 708; Allen v. Han- cock, 16 Vt. 230. In Maine the de- cisions tend to establish a freedom from liability in cases where the de- fect in the road could have been avoided had the horse not taken fright. Moore v. Abbott, 32 Me. 46 ; dover, 2 Cush. 601, it was ruled, as in the cases last above cited, that a town is liable for an injury occasioned by a defect in the highway, where the primary cause of the injury is a pure accident; as, for example, the failure of some part of a carriage or harness ; provided the accident occurred with- out the fault or negligence of the party injured, and be one which common prudence and sagacity could not have foreseen and guarded against ; and provided, also, that the injury would not have been sustained but for the defect in the highway. The decision in that case has never, to our knowl- edge, been formally overruled by the Coombs V. Topsham, 38 Me. 204; An- court in which it was made, although derson v. Bath, 42 Me. 346; Moulton V. Sanford, 51 Me. 303. In Pennsylvania the rule laid down in the text is unhesitatingly applied. Thus, in Lower Marion T. v. Merk- hoffer, 71 Penn. St. 276, the court said : — " It was not a defence to the town- ship to show that by careful driving accident might have been avoided at the place in question. That would it seems to have been considerably shaken by the language employed in some subsequent cases ; whilst in oth- ers, still later, we find it referred to with apparent approbation and acqui- escence. We regard it as still cor- rectly expressing the rule of law in that state, in cases of the kind, though it has frequently been necessary to dis- tinguish it. The language of Chief Justice Shaw in Murdock r. Warwick, fall far short of what is the purpose of 4 Gray, 180, and again in Marble v. a public highway. It must be kept in Worcester, Ibid. 397,401, 402, sounds such repair that even skittish animals very like overruling it ; but after- may be employed without risk of dan- wards, in Roweil v. Lowell, 7 Gray, ger on it, by reason of the condition 102, the decision was directly ap- of the road. The law provides the proved ; and so, too, we understand means for repairing the roads, and if the reference in Titus v. Northbridge, it be not done, and injury ensue, it 97 Mass. 264, 265. would be wrong that individuals '.' The limitation put upon it in the should sufler for the default of the last two cases, and which was indeed public oflicers." In Iloufe V. Fulton, 29 Wise. 296, the cases are thus ably discussed by Dixon, C. J. : — plainly inii)lied from the case itself, was, that the contributing cause must be 'a pure accident;' by wliich is meant some unexpected occurrence or 107 § lOG.] NEGLIGKNCE [book I. from a defect in a highway is diverted by the fact that the defect could have been avoided had it not been that the plaintiff's horse, causes stated ; anil in such cases it has been frequently decided that there can be no recovery against the town, althouiih the plaintiff or the driver was in no fault. Marble v. Worcester, supra; Davis v. Dudley, 4 Allen, 577; Titus V. Northbridge, 97 Mass. 258; Horton v. Taunton, Ibid. 2C6, note; Fogg V. Nahant, 98 Mass. 578. Some of these cases seem to go upon the principle, that the horses being act- ually uncontrollable, the plaintiff is unable to show the exercise of ordi- nary care, or of any care at the time of the injury, in order to avoid it. Others say that the flight or unmanageable- ness of the horses is the misfortune of the traveller, of which he must bear the loss. A better reason would seem to be, that it is not within the spirit or intent of the statute that the towns shall be bound to provide roads that shall be safe for frightened and runa- way horses ; that the remedy is pre- sumed to have been given only to those who have their carriages and horses under their control at the time. But, whatever the true ground of such decisions may be, or whether they are sound or not, it is unnecessary to in- quire here, since a recognized excep- tion to them is, that a horse is not to be considered uncontrollable that merely shies, or starts, or is moment- arily not controlled by his driver. Titus V. Northbridge. Such was the fact in the present case. The horse, if beyond the control of the driver, was so but for a moment. Instantly, upon stopping, "the fall or plunge was made, and the plaintiff" carried over and down upon the ice, the driver barely having had time to save him- self by catching upon the edge of the bridge. The case does not fall within the rule of any of those last above event for which no person is respon- sible, or which cannot be attributed to any unlawful or negligent acts of omission or commission, either on the part of plaintiff or of any third party. Thus explained and applied, we un- derstand Palmer v. Andover to be the law of Massachusetts at the present day ; and, save only in cases where horses become unmanageable, though without any fault or negligence on the part of the plaintiff or the driver, un- less such condition is caused by a de- fect in the highway, as when they become so by reason of fright not produced by something unlawfully or improperly left in the highway, or by reason of disease or viciousness, so that the driver cannot stop them, or direct their course, or exercise or regain control over their movements, and in that condition they come upon a defect in the highway, and an in- jury ensues ; we understand, also, that the general principles laid down in the same case are still the governing ones in actions of the kind in that state. Those principles, it is said in the opinion, ' require nothing further of the plaintiff than to prove ordinary care and diligence on his part in all that appertains to himself and his manner of travelling, at the time of receiving the injury ; that the road ■was defective and out of repair, so much so and for such a length of time as to show the town in legal fault as to such defect ; and the further fact that the injury would not have been sustained, if the town had not so per- mitted their road to be out of repair.' " The only exception to the princi- ples thus laid down, as yet to be found in the reported cases, is that above noted, where horses become un- manageable in the manner and for the 108 BOOK I.] CAUSAL CONNECTION. [§ 106. by throwing his tail over the reins, freed himself from his driver's control, and thus precipitated the carriage against the defect.^ decided, but is clearly within the ex- ception." .... In a subsequent case (Kelley v. Fond du Lac, 30 Wis. 180), it was ruled that, — "If an ac(fident, causing injury to a team, or vehicle, or person travelling therewith, results from the fact that such team is at the time in a state of fright, or not under the driver's con- trol, the town will be liable if such condition of the team is itself caused by some defect in the highway; but not otherwise. " Where a team, having broken away from the vehicle to which it had been attached, and from the driver's control, and being in a state of fright, dashed against trees stand- ing in the highway, and one of the horses was killed, if it appears, in an action for such damage, that the fright and flight of the team were caused by a defect in the highway (the plaintiff not being in fault), the question whether the presence of such trees in the highway was also a deject is immaterial. " Dixon, C. J In the recent case of Houfe v. The Town of Fulton, 29 Wise. 296, this court had occasion to examine the Massachusetts and other authorities upon which counsi;! rely in support of the first point, and also to consider the (juestion whether the defect in the highway must be the sole cause of the injury. We there stated, as the result of our examina- tion, that the fright or uncontrollable- ness of the team, to constitute a de- fence for the town, must be such as is not produced by a defect in the high- way itself, or the presence of any ob- ject within it which the town, in the exercise of reasonable care and pru- dence, is bound to remove, on account of its natural tendency to frighten horses, and thus cause mischief and injury to travellers. We believe we were correct in this statement of the principle governing the Massachusetts decisions; but whether we were pre- cisely so or not, we are certainly not disposed to go further in the applica- tion of it. If without negligence or with no want of ordinary care on the part of the driver, who is a safe and competent person to have the manage- ment of a team, it becomes frightened and unmanaiieable, or escajjcs from his control by reason of any defect in the highway, and, under the fright or im- pulse so caused or given, runs away and injures or destroys itself or the carriage or vehicle, or injures the per- son of the driver or other person trav- elling with him, in that case it is the opinion of this court that the town is liable, and must respond in damages for the injuries so caused and sus- tained. It was expressly so adjudged with respect to an object within the limits of the highway, but outside the travelled part, which was naturally calculated to frighten horses of ordi- nary gentleness, in the case of Foshay V. Glen Haven, 25 Wise. 288, following the case of Morse v. Richmond, 41 Vt. 435, and authorities there cited. If fright and injury from such a defect be actionable against the town, it is scarcely necessary to remark that fright and injury from any other de- fect calculated to produce them, and which does prochice them, if the jiny shall so find, like the pitch-hole in 1 Fogg V. Nahant, 98 Mass. 578; S. P. 106 Mass. 278. See Titus v. Northbridge, 97 Mass. 258; Davis v. Dudlev, 4 Alien, 557. 1U9 107.] NEGLIGENCE [book I. But is the switching by a liorso of his tail over the reins one of those extremely unlikely and abnormal acts which are called the acts of God, and which ordinary sagacity cannot foresee ? The bites of flies, at certain periods of the year, are apt to produce this switching, even with the quietest horses ; yet we can hardly view such bites as such unique- casualties as to be outside of the ordinary incidents of travel. If within the ordinary range of travel, then they are contingencies for which the road-maker should provide. Horse becoming lame. — So, also, a person is not charged with contributory negligence from his horse becoming lame, when this is an ordinary incident of travel.^ § 107. Frightening horses 07i i^uhlic road. — Certainly it will not be maintained that it is an unusual and unnatural thing for horses, when travelling on a road, to be frightened by extraordi- nary noises or sights. He, therefore, who, on a road travelled by horses, makes such noises or exhibits such spectacles, is liable for any damage caused by a horse taking fright.^ This rule has been applied to protect the public using a road from the effect of a jet the present case, will also be action- able. " And as to the other point, that the trees standing in the highway were the remote cause of the injury complained of, enough has already been said to show, if they were so, that the town must still be held liable in case the jury shall find that the escape of the horses was caused by the defect in the highway at the place of such escape. In that case, such defect in the highway is to be regarded as the proximate and continuing cause of the injury, which was all one cause or event from the time the horses took fright and escaped until one of them was killed, with no new or other inde- pendent and sufficient cause interven- ing to which the injury could be at- tributed. In this view, the defect in the road at the place of escape, being found by the jury to have been the cause of the escape and consequent injury, is to be deemed the primary 110 and only efficient cause, and the trees, whether negligently left standing within the limits of the highway or not, are not in any proper sense to be looked upon as a cause. Upon this subject the case of Hodge v. Benning- ton, 43 Vt. 451, will be found in point, that the descent into the pitch- hole, the hitting of the load of wood against the heels of the horses, their fright, jerking, and breaking away, and running and collision with the trees, whereby one was killed, though made up of parts and embracing many incidents, are nevertheless to be con- sidered as essentially but one occur- rence or transaction, constituting a single and individual cause of action." See infra, § 968. As to fright of horses under such circumstances, see fully infra, § 983, ^ Morrison i'. Davis, 8 Harris (Pa.), 171. 2 See fully infra, § 835. BOOK I.] CAUSAL CONNECTION. [§ 108. of water likely to frighten horses coming along it, the jet of water being caused by the defendants, the New River Company, in the exercise of their statutory powers ; ^ and to make a town liable for objects left on a road having a like tendency to frighten horses.^ § 108. 3. Natural and probable habits of men acting in masses. — It is not natural or usual that at a particular moment in each day, and by a particular individual, a letter without ad- dress should be dropped in a post-office ; but it is natural and usual that in a particular month, at a particular office, a number of unaddressed letters should be posted bearing a proportion gen- erally constant to the whole amount of posted letters. It is not natural or usual that at a particular moment a particular person should pass at a particular point in a thoroughfare in which there is danger ; but it is natural and usual that in the course of a week one or more persons should pass the particular point and be ex- posed to the particular danger. Men, moving in masses, act in obedience to general laws which can be predicted as to the mass, though not as to the individual member of the mass ; and hence, wherever we may be able to say that men in masses will probably move in conformity with such laws, then, when as masses they so move, they do not interrupt causal connection.'^ If I negligently weaken, for instance, the foundations of a bridge over which a large population daily throngs, I cannot defend myself from an action for damages produced by my negligence on the ground that each particular individual should examine the bridge before step- ping on it. If by a false alarm I cause the passengers of a crowded boat to rush over in a flock on one side, I cannot, if the boat is thus upset, excuse myself on the plea that the general alarm was foolish, and that each one should have inquired for himself. Or, to present the question in another aspect, when we inquire, in respect to negligence, what is that "regularity" and "natural- ness " which are necessary incidents, as has been shown, of causal connection, Ave must apply the test, not to the particular indi- ^ Hill y. New River Co., Q. B. 18 L. animals killed or iiijiircil hy its oars, T. (N. S.) 555. locomotives, or other carriajres, there 2 Foshay v. Glen Haven, 25 Wise, must be actual collision of the cars, 288 ; Nourse )•. Richnioiid, 41 Vt. 288. locomotives, or other carria;j;es with See infra, § 083. In Ohio & Miss. Ry. such animals. This, however, as will Co. V. Cole, 11 Ind. .'J31, it was, how- be hereatler seen, is not good at com- ever, held, that to render a railroad mon law. company liable, under the statute, for ^ See infra, § 145. Ill § 109.] NEGLIGENCE : [BOOK I. vidual who may ultimately be injured, nor to the particular point of time in which the injury to him takes place, but to the adjacent population in the aggregate, and to the whole period of time over which the negligence immediately operates. If it is one of the incidents of society that a throng of people should pass a partic- ular point, then I am liable if one person of this throng is injured by my placing a dangerous instrument at this point.^ § 109. A man, for instance, to adopt a well known illustration from the Roman law, cuts off the bough of a tree that overhangs a public road in a populous neighborhood. Now, it is a law of society that in such a road there will be constant passing and re- passing in proportion to the population ; and he, therefore, who casts anything down on such road does so at his own risk ; for he is either negligent in being ignorant of this law, or, when cogni- zant of it, he is negligent in letting the thing fall without giving notice. On the other hand, if the tree be in the centre of a large inclosed field, he has a right to assume, in accordance with an equally well known social law, that there will be no passing of travellers under the tree, even though he should be so covered up by the leaves that he cannot see what is going on underneath ; and hence he will not be liable for damages sustained by the falling of a bough on a person of whose presence he is not con- scious, but who is lounging under the tree. And so in an Arkan- sas case,2 [^ ^yr^s \iq\^ that one who is hunting in a wilderness is not bound to anticipate the presence, within range of his shot, of another man, and that he is not liable for an injury caused unin- tentionally by him to a person of whose presence he is thus not to be expected to be aware.^ The general rule is thus stated : — " Si putator ex arbore ramura cum dejiceret, vel machinarius hominem praetereuntem occidet, ita tenetur, si is in publicum decidat, nee ille proclamaverit, ut casus ejus evitari possit." * Yet even here, if, in the most sequestered spot, there is a like- lihood of some person being underneath the tree, who may be injured, he who is in the tree must take heed, and is liable if he acts in face of such probability.^ 1 See infra, § 145, 860. ■» L. 31. D. at Leg. Aquil. cited by 2 Bissell V. Booker, 16 Ark. 308. Hasse, p. 68. See infra, § 145. 3 See also DriscoU v. The Newark ^ gee infra, § 112, 315, 344, 860. & Rosendale Co. 37 N. Y. 63 7. 112 BOOK I.] CAUSAL CONNECTION. [§ 110. " Sed Mucins etiam dixit, si in private idem accidisset, posse de culpa agi : culpam autem esse, cum quod a diligente jjrovideri poterit non esse provisum, aut turn denunciatum esset, cum peric- ulum evitari non posset. Secundum quam rationem non multum refert, per publicum an per privatum iter fieret, cum plerumque per privata loca vulgo iter fiat. Quod si nullum iter erit, dolum duntaxet pi'aestare debet, ne immittat in eum, quem viderit transeuntem, nam culpa ab eo exigenda non est, cum divinare non potuerit, an per eum locum aliquis transiturus sit." ^ § 110. So with regard to games. In games which are public exercises of strength, bodily hurt may be inflicted ; but such hurt does not bring liability if the party inflicting it act in good faith according to the rules of the game. Thus it was casus when in the old Roman game of ball, a person was struck by the glancing of a ball thrown according to the ordinary usage of the game. Yet it was otherwise when the rules of the game were negli- gently transcended, so that injury was inflicted on those who were governing themselves by such rules.^ So injuries bond fide inflicted in a public wrestling match were not the subject of suit, on the principle that no liability attaches to the reguhir and nat- ural consequences of that which the law allows.^ But if a new and dangerous game, whose character is unknown to third parties, is introduced, and as a consequence of this game injury is inflicted, the introducer of the game is liable for such injury, unless an independent disturbing will is interposed : " Lusus quoque nooniis in culpa est.'''' It is a natural social consequence of such a game («. g. a game involving the dangerous use of fire on a thorough- fare), that a crowd should collect, and that in this crowd some one should be hurt. Hence for this consequence the introducer of the game is liable. So as to exercise in shooting.* If this be done by soldiers in a camp, where such shooting is customary, then there is no liability if a person passing in the neighborhood is accidentally hit. But a person who shoots at a thoroughfare, without notice, he not being required by official duty to shoot, is liable for tlie con- sequences arising if a person passing on the thoroughfare is hit. • L. 31. D. Leg. Aquil. ut sup. * See People v. Fuller, 2 Parker C. 2 See L. 52. §4. D. ad leg. Afiuil. R. 16; Spades r. Com. 3 IJusli, 111; 9,2. State r. Vanee, 17 Iowa. 13S; Bar- 8 L. 10. L. 7. § 4. D. cod! ton's case, 1 Stra. 481. Suora, § 109. 8 113 § 113.] NEGLIGENCK : [BOOK I. " Si quis, dum jaculis ludit vel exercitatur, transeuntera ser- vum tuum trajecerit, distinguitur. Nam si id a niilite in campo, eoque ubi solitum est exercitari, admissum est, nulla culpa ejus intelligitnr ; si alius tale quid admisit, culpae reus est. Idem juris est de milite, si in alio loco, quara qui exercitandis militibus destinatus est, id admisit." ^ § 111. So as to shooting at a mark. If this is done in an open field at a target, near or behind which no one at the time of shooting is seen, there is no negligence. But it is otherwise when the target is placed on a fence behind which is a public road. § 112. So with regard to leaving a dangerous instrument on the highway.^ It is negligence to leave such an instrument on a place of public access, where persons are expected to be con- stantly passing and repassing, and where such persons are not required to be on their guard, or where children are accustomed to play ; ^ but it is not negligence to leave such an instrument in a private inclosure, which, from its veiy privacy, excludes the public, and puts on their guard all who enter. In other words, to sum up the principle which these cases illustrate, if it appears that viewing men in the aggregate, according to the laws which control them when so massed, it is regular and natural that with- in a certain time certain injuries will flow from a particular negli- gence, then such injuries are imputable to such negligence. § 113. So as to the leaving of horses without an attendant. A horse may be so left in an inclosed field without liability, for it is not usual or natural for a throng of persons to pass through such a field. It is otherwise, however, in a public thoroughfare through which persons of all ages and capacities are constantly jostling, without opportunity of always seeing their way before them, or of being careful as to what they touch. Hence causal connection between negligence and damage is held to continue where a horse, being left without control on the public streets, is led by one child over another child who is hurt thereby ; "* and where a horse so left by himself is frightened by a passenger casually hustling it on the streets, and then inflicts injury on per- 1 § 4. I. de Le^. Aquil. 4. 3. See s See R. R. v. Stout, 17 Wall. 657. infra, § 315, 344, 860. * Lynch v. Nurilin, 1 Ad. & E. (N. 2 See infra, § 315-16, 344, 851, 860. S.) 29. Infra, § 904, 915. 114 BOOK I.] CAUSAL CONNECTION. [§ 114. sons or property. ^ With this may be associated cases where the neghgence of the defendant, a carrier, is such, that collisions with third parties are to be expected as a natural consequence of such negligence in a crowded thoroughfare.- § 114. Extraordinary interruptio7is of natural laivs. — Acci- dent, or casus, is sometimes defined to be an extraordinary inter- ruption of a natural law ; sometimes the interposition of a con- dition not under ordinary circumstances to be expected.^ For the consequences of such accident or casus responsibility does not at- tach to the party whose discharge of duty is in this way inter- rupted.* Casus or accident, when thus consisting of an extraordinary in- terruption of natural laws, producing an event which ordinary prudence would not foresee, is sometimes called the act of God. The act of God signifies, in legal phraseology, any inevitable ac- cident occurring without the intervention of man, and may, in- deed, be considered to mean something in opposition to the act of man, as storms, tempests, and lightning.^ The above maxim, may, therefore, be paraphrased and explained as follows : It would be unreasonable that those things which are inevitable by the act of God, which no industry can avoid, nor policy prevent, shou.ld be construed to the prejudice of any person in whom there has been no laches.^ Casus has been held to exist where the accident arises from foggy weather, or the removal of accustomed landmai'ks ; ^ where a rat made a hole in a boxf where water was collected in an upper room, so that the water trickled out, and flowed upon defendant's goods in a lower room ; ^ where an act of parliament 1 McCahill V. Kipp, 2 E. D. Smith, ^ Per Lord IMansfiold, C. J. — For- 413. Infra, § 915. ward v. Pittard, 1 T. R. 33; Bell, 2 Peck I'. Neil, 3 McL. 22; Eaton Diet. & Dig. of Scotch Law, p. 1 1 ; V. Boston & L. R. R. 11 Alien, 505; Trent Navigation v. Wood, 3 Esp. Lockhart v. Lichtentlialer, 46 Penn. 131; Oakley v. Portsmouth & Ryde St. 15.S. See Tllidge v. (ioodwin, 5 Steam Packet Co. 11 Exch. 618; C. & P. 190. Infra. § 798. Blytli v. Birnungiiam WutiT Works 8 Pollock, C. B., in" Rigby v. Ilew- Co. 11 E.xch. 781. itt, 5 Exch. 24; cited by Byles, J., in ^1 Rep. 97; Broom's Legal Max- Hoey V. Felton, 11 C. B. N. S. 143, ims, 5th ed. p. 230. and Greenland v. Chaplin, Ibid. 248. ^ Crofts i'. Waterhouse, ."? Bing. * See Wakeman i'. Robinson, 1 319, 321. Bing. 215; Hall v. Fearnley, 3 Q. B. 8 Carstairs v. Taylor, Law Rep. 6 913. Exch. 217. 115 § 115.] casus: [book I. directed a water company to lay down pipes with plugs in them as safety valves to prevent the bursting of the pipes, and the plugs were properly made and of proper material, and a severe frost occurring, the plugs were prevented from acting, and the pipes accordingly burst and flooded the plaintiff's cellar ; ^ where a fall of snow prevented a traveller from discovering a defect in a road.^ So, where a horse took fright without any default in the driver, or any defect in the harness, or there being any known pro- pensity in the animal, and did damage to the plaintiff ; ^ where a horse, in travelling a highway, was suddenly unmanageable at the smell of blood ; ■* where a horse not known to be vicious by the defendant, who was riding on the horse, became restive and ungovernable, and ran upon the foot pavement and knocked down and killed the plaintiff's husband ; ^ and where the defendant's horse, being frightened by the sudden noise of a butcher's cart which was driven furiously along the street, became unmanage- able, and plunged the shaft of a gig into the breast of the plain- tiff's horse,^ — it was held that the action could not be supported. The same rule is applied where a mill-dam built on a proper model, and with the care good engineers in such matters are ac- customed to use, is swept down by a freshet of unprecedented fierceness and volume.'' So an unusual water-flood, of a character not to be foreseen, and preventing safe transportation, is an act of God which will be a defence, if there be no want of diligence in the carrier ; ^ but not so with the falling of the tide, causing a vessel to strand, for this could have been foreseen and provided against.^ § 115. So, in a case put in the Digest, the builder of a house, in excavating the cellar, piled up a heap of earth against an adjacent house. A rain storm of extraordinary continuance, assiduis pluviis, set in, which so saturated the heap that it com- municated such dampness to the adjoining wall that the latter fell ^ Blyth r. The Birmingham Water 6 Wakeman v. Robinson, 1 Bing. Co. 11 Ex. 781. 213; 8 Moore, 63. 2 Street v. Holyoke, 105 Mass. 82; ''' Livingston v. Adams, 8 Cow. Day V. Mitford, 3 Allen, 98. 1 75. 8 Aston V. Heaven, 2 Esp. 533. 8 Wallace v. Clayton, 42 Geo. 443; * Jackson v. Belleview, 30 Wise. Angell on Carriers, 163. 257. 9 Bohannon v. Hammond, 42 Cal. * Hararaack v. White, 11 Com. B. 227. N. S. 588; 31 L. T. C. P. 129. 116 BOOK I.] CAUSAL CONNECTION. [§ 116. in. Labeo decided that, on the ground of the extraordinary char- acter of the rain, to which, and not to the heaping of the earth (which was a usual incident of building), the damage was attrib- utable, no liability attached to the builder ; quia non ipsa conges- tion sed humor ex ea congestione postea damno fuerit. The extraor- dinary and unprecedented character of the rain is spoken of as something extrinsecus, breaking the causal connection And of this decision Javolenus appro ves.^ That this is based on the casus of the rain coming with such unusual quantity and per- sistence is shown by another passage, in which it is declared that when, through defective water pipes laid doivn hy another^ water reaches and saps my wall, such other person is liable for the dam- age done. " Si fistulae, per quas aquam ducas, aedibus meis applicatae damnum mihi dent, in factum actio mihi competit." ^ In the first case there was no liability, because the damage was done by an extraordinary condition extrinsic to the defendant's action ; in the second case there was liability because the bursting of the pipe was a natural consequence of its defectiveness. § 116. Relations of responsibility to casus. — Responsibility (imputation ceases where accident (casus fortuitus^ or simply casus} intervenes. If there is nothing to be imputed to the de- fendant, there is nothing with which he is chargeable. " Ac ne is quidem hac lege tenetur, qui casu occidit (the action being, in this case, for damages under the Aquilian law), si modo culpa ejus nidla inveniatur." ^ "la hac actione, quae ex hoc capitulo oritur, dolus et culpa punitur. Ideoque si quis in stipu- 1am suam, vel spinam, comburendae ejus causa, ignem immiserit, et ulterius evagatus et progressus ignis alienam segetem vel vi- neam laeserit, requiramus, niim imperitia ejus aut negligcntia id accidit. Nam si die ventoso id fecit, culpae reus est ; nam et qui occasionem praestat, damnum fecisse videtur. In eodem crimine est, et qui non observavit, ne ignis longius est procederit. At »i omnia quae oportuit^ observavit^ vel subita vis venti longius ignem produxit, caret culpa.'" ^ Here, where the amount of care is not graduated by a special obligation, the term quae oportuit indicates that casus excuses only when every reasonable precaution has been taken. 1 L. 57. D. loc. 10. 2. See infra, § * § 3. L. de Leg. Aq. 927, 930. * L. 3!). § 3. D. de Leg. Aq.; Paulu-s 2 L. 18. D. de serv. praed. urb. 8. lib. 22. ad Ediet. 2. Bar, ut sup. p. 130. 117 § 119.] casus: [book I. § 117. Where, however, according to the Roman Law, does im- putatio cease and casus begin? On this point we may again, even though at the risk of repetition, recur to a leading passage of the Digest already cited : " Si putator ex arbore ramum cum de- jicerit, vel machinarius hominem praetereuntem occidit, ita tene- tur, si is in publicum decidat, nee ille proclamaverit, ut casus ejus evitari possit. Sed Mucius etiam dixit, si in privato idem acci- disset, posse de culpa agi ; culpam autem esse, cum quod a diligente provideri potent, non esset pirovisum, aut turn denunciatem esset, cum periculum evitari non posset. Secundum quam rationem non multum refert, per publicum an per privatum, iter fieret, cum plerumque per privata loca vulgo iter fiat. Quod si nullum iter erit, dolum duntaxit praestare debet, ne immittat in eum, quem viderit transeuntem, nam culpa ab eo exigenda non est, cum divi- nare non potuerit, an per eum locum aliquis transiturus sit." ^ § 118. In other words, Sabinus, where the bough of a tree or any other heavy article is dropped, makes a distinction between the dropping on a public or on a private place. But Mucins, and after him Paulus, held that this distinction does not settle the question of liability. That question depends upon culpa, and culpa here depends upon diligence. Could the danger, by a dili- gent man, have been averted ? But what is diligence ? Hasse, in his authoritative treatise on Culpa, gives the following answer : Diligence exists when there is applied a degree of carefulness which is competent for the average human capacity. We cannot say of one who is simply not of extraordinary diligence that he is undiligent or negligent. Preeminent diligence is only attain- able in three ways : — 1. By the application of rare talents. 2. Through extraordinary sensibility, which scents out dangers which an ordinary man would not prognosticate, and which there- fore avoids dangers which another would encounter. 3. When for a particular transaction is invoked an amount of human strength beyond what could be continuously and usually maintained. § 119. Another case which has been the subject of criticism is the following : — " Cum pila complures luderent, quidam ex his servulum, cum pilam praecipere conaretur, impulit, servus cecidit, et crus fregit. ^ L. 31. D. ad Leg. Aquil. ; Paulus lib. 10 ad Sabinum. 118 BOOK I.] CAUSAL CONNECTION. [§ 120. Quaerebatur, an dominus servuli Lege Aquilia cum eo, cujus im- pulsu ceciderat, agere posset. Respondi, non posse, cum casu maffis quam culpa videretur factum.'''' ^ No doubt misfortunes such as those mentioned in the last extract could have been avoided by the exercise of the highest possible degree of care. But who can always remain in such a condition of mental tension as to insure such avoidance ? Who particularly can maintain this ten- sion while playing a game ? Or how can we require from all men the quickness and keenness in the observing and avoiding of risks which are given to but few? Hence where we have no right to expect such extraordinary vigilance and acuteness, the result is attributed to casus or accident. §120. With the last case is to be mentioned the following: " Impetu quoque mularum, quas mulio propter imperitiam re- tinere non potuit, si servus tuus oppressus fuerit, culpae reus est mulio. Sed et si propter infirmitatem eas retinere non potuerit, cum alius jirmior retinere eas potuisset aeque culpa tenetur." ^ And. again : " Sed et si canis, cum duceretur ab aliquo, asper- itate sua evaserit, et alicui damnum dederit, si contineri firmius ah alio potuit, vel si per eum locum induci non debuit, haec actio cessabit, et tenebitur qui canem tenebat." ^ In both these cases the party injuring was held liable for the injury when it appeared that another person would have acted more effectively, — a test applied to the contract of Commodatum, where the highest de- gree of diligence is required. Yet this highest degree of dili- gence, as has been already fully shown,^ is simply that diligence which diligent men usually apply. Hence the law requires, even from specialists, nothing further than such diligence as is usually exercised by specialists in the particular specialty. Whatever passes beyond the range of such diligence belongs to that of casus fortuitus.^ ^ L. 52. § 4. D. ad Leg. Aquil. Al- more than the German word Ziifall, or fenus, Lib. 2. Digest. accident, — caxux sometimes including ^ § 8. 1. eod. occurrence (Fall) as well as accident * L. 1. § 5. D. si quadnpes paupe- (Zufall). For this he cites Horat. 11. riem: Ulpianus lib. 18 ad edictiun. Od. 10. v. 10. Kpist. I. 19. 18. L. 4. * See supra, § 32, 46. D. de vulg. et pnpill. subst. (28. 6) ; * Ca!iU!t, we are told by Wening- \j. 64. § i). solut. matr. (24. 3.) But Ingenheim, in his thoughtful treatise in its usual signification, casus, he de- on Schadenersat/.e, includes, in the clarcs, includes every event (factum) original sense of the word, something which is independent of us, whether 119 § 123.] CASUS [book I. § 121. Act of public enemy. Vis major. — So also it is a defence, in cases of bailment, that the goods were forcibly taken or destroyed by a public enemy. But this defence will not avail, if the defendant did not employ due diligence to escape or repel the attack. 1 § 122. Casus and vis major no defence to an action to return specific things or their equivalents. — Casus and vis major are nec- essarily no defence to an action on an obligation to return things or their equivalents ; for the destruction of the particular thing is no reason why its equivalent should not be presented. Genus perire non censetur. Hence no casualty can be set up to bar an obligation to pay a particular sum of money .^ Yet at the same time, on an alternative obligation, it is admissible to defend by showing that all the articles alternatively specified in the obliga- tion are casually destroyed.^ § 123. Provoked casus no defence. — Casus and vis major are no defence when they were induced through a defendant's fault. The Roman law is clear to this point.^ Thus, if a ship collides with another in port through the violence of the storm, no negli- gence being imputable, this is casus ; but if a rope by which she this independence exists because the event was out of natural sequence, or because we were not capable of avert- ing it. The latter condition is often spoken of by the Romans as vis major, damnum, fatale, casus majores, for- tuna. L. 2. § 7. de adm. rer. ad civ. pert. (50. 8); and other citations given by Wening-Ingenheim, § 56. They frequently, when the latter re- stricted meaning is intended, add for- tunilus to casus. Const. 4. Cod. de inst. et sub. (6. 25) ; Const. 5 Cod. de pign. act. (4. 24) ; L. 6. D. de adm. et per. tut. (26. 7.) Periciilum. — Periculum, in the nar- row sense of the word, includes acci- dental disasters which befall a person or thing, and of the person to whom they occur it is said periculam prae- stat. In its widest sense, peHculum includes all risk, whether advantage- ous or disadvantageous. Sometimes 120 it is used to express the condition of him who is bound to custodia, or to the absolute return of goods. L. 29. pr. de petit, heredit. (5. 3) ; L. 13. § 1. de liber, caus. (40. 12); L. 14. § 1. de per et commod. rei vend. (18. 6) ; L. 14. § 16. de furtis (47. 2); cited by Wening-Ingenheim, § 56, p. 116. Periculum is divided into periculum, deteriorationis , when only the quality of the article is affected, and pericu- lum interitus, when the article is in substance destroyed. 1 Holloday v. Kennard, 12 Wall. U. S. 254, and other cases cited infra, § 561. 2 L. 11. C. se cert. pet. 4. 2. ' See passages cited in Baron, § 238. * L. 22. D. de neg. g. 3. 5; L. 5. §4; L. 18. D. comm. 13. 16; L. 10. § 1. De de L. Rhod. 14. 2; Baron, § 238. BOOK I.] CAUSAL CONNECTION. [§ 124. is attached to a quay is negligently cut, so that she is driven from her moorings, and thus exposed, then the storm is no defence in a suit against those by whose negligence she is thus cast adrift.^ The same point has been repeatedly made in our own courts.^ Thus where a ship, becoming unmanageable through the negli- gence of ths captain and crew at a point about three quarters of a mile from a lee shore, drifted ashore, and damaged the plain- tiffs' sea-wall, the negligence was held the cause of the casuSy and therefore the owners of the ship were held liable.^ § 124. So in a case cited by Mr. Broom, in his Legal Maxims,* a policy of insurance on bags of coffee on a voyage from Rio to New Orleans and thence to New York, contained the following exception : " Warranted free from capture, seizure, and detention, and all the consequences thereof, or of any attempt thereat, and free from all consequences of hostilities,^^ &c. The insured ship, while on her voyage ran ashore, and was eventually lost south of Cape Hatteras. It appeared in evidence that at Cape Hatteras, until the secession of the Southern States of America, a light had always been maintained, and that the light had for hostile pur- poses been extinguished by the Confederates whilst in possession of the adjacent country. If the light had been maintained the ship miglit have been saved. Whilst she was ashore near the land a portion of the coffee was saved by certain officers acting on behalf of the Federal Government, and a further portion thereof might in like manner have been got ashore but for the interference of the Confederate troops, in consequence of which the entire residue of the cargo was wholly lost. The question upon the above facts arose. Had the goods insured, or any, and if so, what portion of them, been lost by the perils of the sea, or by perils from which they were by the policy warranted free ? The court unanimously held that the insurers were liable as for a partial loss in respect of the coffee which remained on board incapable of being saved, — the proximate cause of the loss being a peril of the sea ; but that as to so much of the coffee as was got ashore, and as to so much as would have been saved but for the interference of the troops, this was a loss by a consequence of 1 L. 29. § 2. D. ad Leg. Aq. « Bailiffs of Romney Marsh v. Trin- 2 Sue Seigel i;. Eisen, 41 Cal. 109 ; ity House, L. R. 5 Ex. 208. infra, § 559. * 5th cd. 219. 121 § 124.] CASUS : [book I. hostilities witliin the warranty, so that in respect of it the insur- ers were not liable.^ " The maxim, causa proximo non remota spectatur," remarked Erie, C. J., in delivering his judgment in the above case, " is particularly applicable to insurance law. Tiie loss must be imme- diately connected with the supposed cause of it. Now the relation of cause and effect is matter which cannot always be actually [ac- curately?] ascertained; but if, in the ordinary course of events, a certain result usually follows from a given cause, the immediate relation of the one to the other may be considered to be established. Was the putting out the light at Cape Hatteras so immediately connected with the loss of this ship as to make the one the conse- quence of the other ? Can it be said that the absence of the light would have been followed by the loss of the ship if the captain had not been out of his reckoning ? It seems to me that these two events are too distinctly connected with each other to stand in the relation of cause and effect. I will put an instance of what I con- ceive to be a ' consequence of hostilities ' within the meaning of this polic3^ Suppose there was a hostile attempt to seize the ship, and the master, in seeking to escape capture, ran ashore, and the ship was lost ? There the loss would be a loss by the consequences of hostilities within the terms of this exception. Or, suppose the ship chased by a cruiser, and, to avoid seizure, she gets into a bay, where there is neither harbor nor anchorage, and in consequence of her inability to get out she is driven on shore by the wind, and lost ; that again would be a loss resulting from an attempt at cap- ture, and would be within the exception. But I will suppose a third case : the ship, chased into a bay where she is unable to an- chor or to make any harbor, and putting out again on a change of wind, but, in pursuing her voyage encountering a storm, which, but for the delay, she would have escaped, and being overwhelmed and lost ; there, although it may be said that the loss never would have occurred but for the hostile attempt at seizure, and that the consequence of the attempt at seizure was the cause without which the loss would not have happened, yet the proximate cause 1 lonides v. Universal Marine In- Co. 3 H. & C. 284; Sully r. Du- surance Co. 14 C. B. N. S. 259, cited ranty, Ibid. 270 ; Dent v. Smith, L. R. per Willes, J.; Marsden v. City & 4 Q. B. 414, is important in reference County Ass. Co., L. R. 1 C. P. 240 ; to this topic. Lloyd V. General Iron Screw Collier 122 BOOK I.] CAUSAL CONNECTION. [§ 126. of loss would be the perils of the sea and not the attempt at seiz- ure. Take another instance : the warrant}^ extends to loss from all the consequences of hostilities. Assume that the vessel is about to enter a port having two channels, in one of wliich torpe- does are sunk in order to protect the port from hostile aggression, and the master of the vessel, in ignorance of the fact, enters this channel, and his ship is blown up ; in that case the proximate cause of the loss would clearly be the consequences of hostilities, and so within the exception. But suppose the master, being aivare of the danger presented in the one channel, and in order to avoid it attempts to make the port by the other, and by unskilful navigation runs aground and is lost, — in my opinion that would not be a loss within the exception, not being a loss proximately connected with the consequences of hostilities, but a loss by a peril of the sea, and covered by the policy." § 125. It may be therefore said that a party cannot excuse him- self upon the plea of casus, where by his own negligence he has placed himself in a position which renders a collision unavoid- able. He must exercise care and foresight to prevent reaching a point from which he is unable to extricate himself ; and omitting these, the greatest vigilance and skill on his part subsequently, when the danger arises, will not avail him.^ Tlius, where an action was brought against the defendants, as carriers by water, for damage done to the cargo by water escaping through the pipe of a steam-boiler, in consequence of the pipe having been cracked by frost ; the court held that the plaintitf was entitled to recover, because the damage resulted from the negligence of the captain in filling his boiler before the proper time had arrived for so doing ; although it was urged in argument, that the above maxim applied, and that the immediate cause of the damage was the act of God. 2 § 126. Necessary sacrifice of property in order to avoid superior calamity. — Casus may also include acts of voluntary destruction necessary to avoid a more sweeping and irremediable injury, as where a cargo is sacrificed in order to avoid a shipwreck, or a house is blown up in order to stop a conflagration.-'' But, as will ^ Austin !'. N. Y. Steam Co. 43 N. As to wlion nocossity will jiistify Y. 75 ; infra, § 559. sacrifit'e or invasion of property, see 2 Piordet v. Hall, 4 Bing. 607. Britisli Plate Man. r. Meroilitli, 4 ' Russell t>. Mayor, &c. 2 Denio, 461. Term 11. 796, where Bulkr, J., said: 123 126.] CASUS : [book I. presently be seen, actual necessity must be shown in order to jus- tify such a sacrifice. upon the great doctrine of public safe- ty, when it is necessary." So in Metallic Comp. Cast. Co. v. Fitchburt; R. R. 109 Mass., Chapman, C. J., said : — " The elaborate provisions which our statutes have made for tlie extin- guishment of fires indicate the mag- nitude of the interest which the com- munity has in preventing the spread of conflagrations, but these statutes do not supersede the common law. Their " There are many cases in which in- dividuals sustain an injury for which the law gives no action ; for instance, pulling down houses or raising bul- warks for the preservation and defence of the kingdom against the king's ene- mies. The civil law writers indeed say that the individuals who suffer have a right to resort to the public for satisfaction ; but no one ever thought that the common law gave an action against the individual who pulled down the house, &c. This is one of purpose is merely to enable the com- those cases to which the maxim ap- plies, salus populi suprema lex." In The Mayor, &c. i-. Lord, 18 Wend. 129, it is said by Chancellor "Wal- worth, that " the rule appears to be well settled that in a case of actual necessity, to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or any other public calamity, the private property of an individual may be law- fully taken or destroyed for the relief, protection, or safety of the many, with- out subjecting those whose duty it is to protect the public interests, by whom or under whose direction such private property was taken or de- stroyed, to personal liability for the damage which the owner has thereby sustained." See also, to the same general effect, Russell v. Mayor, &c. 2 Denio, 461 ; Hale v. Lawrence, 1 Zab. 714; American Print Works w. Law- rence, 1 Zab. 248 ; Lorocco v. Geary, 3 Cal. 69 ; Meeker v. Van Rensselaer, 15 Wend. 397; McDonald v. Red- wing, 13 Minn. 38. The supreme judicial court of Massachusetts had also said, in Taylor v. Inhabitants of Plymouth, 8 Mete. 465, that "inde- pendently of the statute, the pulling down of a building in a city or com- pact town, in time of fire, is justified 124 munity to protect themselves more efi'ectually than they could do other- wise. Thus, the organization of a fire department, with officers and imple- ments, does not deprive the people of a neighborhood from obtaining an en- gine and hose and crossing the neigh- boring lands to obtain water for stop- ping a conflagration, without waiting for an organization, and individuals nl'ay climb upon neighboring roofs to carry buckets of water. It is a suf- ficient justification that the circum- stances made such an invasion of pri- vate property reasonable and proper in helping to extinguish the fire. The objection of the defendants, that the officers of the fire department in Cam- bridge had no jurisdiction in Somer- ville, and could not act officially in that town, has no validity. They had a fire company organized, and an en- gine and hose, and were in the vicinity of the building, and they could not with propriety stand idly by and wit- ness the spread of a fire which they might extingui>h, merely because it was beyond the town line. They had a right, as citizens, to do what they reasonably could to prevent this pub- lic calamity, whether in their own city or a neighboring town." See this question discussed in Cent. Law J., Apr. 30, 1874, p. 212. BOOK I.] CAUSAL CONNECTION. [§ 12T. § 127. Casus no defence when its dangerous consequences could hy ^prudence he avoided. — Of this principle several illustrations have just been noticed. An interesting discussion of the question is to be found in a ease in which the city of Philadelphia, holding under statute the control of the water power of the river Schuyl- kill, drew off, in a time of peculiar drought, so much water to supply the city, that the channel below the dam was left dry.^ Was the drought a defence by which the city could justify its act? No doubt if the health of the city would have been imperilled by intermitting the supply, the city authorities would have been bound to continue the supply, even though navigation below the dam was sacrificed. But if it appeared that the water given to the city was wastefuUy supplied, then the defence of necessity would jpro tanto fail ; in other words, the drought would not be a defence if its consequences could have been avoided by due dili- gence on the part of the city authorities. And so was it held by the supreme court. ^ 1 City of rhil. V. Gilmartin, 71 Pa. St. 140. See infra, § 5 71. 2 "It now remains to consider," said Agnew, J., " the influence of an extraordinary drouglit upon the case. It is a clearly proved fact, and one fully established by the verdict, that the chief engineer of the water-works and his subordinates drew off the water of the pool, to supply the reser- voirs of the city, below the top level of the dam, and kept it drawn off so far below, that, from the 9th of August till the 7th of September, 186i), the navigation of the pool was wholly im- peded to the class of boats usually navigating the Schuylkill previous to that time. The plaintiff's boat was of this class, and drew, perhaps, half an inch less. Was this alli^ged wrong justified by an overruling necessity ? Let it be conceded that an extraordi- nary drought, following the order of nature, is an act of God, the author of the laws of this order, and that in consequence some one must sulTcr •without redress, upon the maxim Aclux Dei nemini facil injur iain; and let it be admitted that, for the neces- sary use of man and his dependent creatures, the right to this element, as indispensable to life and health, is su- perior to the right of the navigator ; yet the inquiry remains, was there such a necessity in this instance, to take from the navigator his superior right to use the stream. " The injury, as shown by the evi- dence and established by the verdict, arose from the use of the Schuylkill by the city for water-jDOfce;*, and not merely for co7isumptiou. For every gallon of water supplied to the reser- voirs thirteen and a half gallons were expended through the turbine wheels, for driving and lifting power ; and when common water-wheels were used, the expenditure was twenty-seven gal- lons for power to every gallon j)umped into the reservoirs for consumption. It is also in evidence, and an un- doul)ti'd fact, that from time to time and for years the councils of the city have been warned by the chief cngi- 125 § 129.] CASUS : [book I. § 128. Casus or vis major ^ burden of proof in. — The onus of establishing casus or vis major is on the defendant, when he seeks to avoid uprimd facie liability by setting up such defence.^ § 129. On the other hand, if the injury is shown to have re- sulted from a condition which is extraordinary and not to be expected, it is not enough simply to prove an injury to the plain- tiff. Something that the defendants did, or that they omitted to do, must be proved to have been the cause of the injury.^ neer, in his reports, to take steps to protect the city in time of drought, by the use of steam-power, so as to econ- omize the water of the Schuylkill for city use. This had not been effect- ually done, though steps had been taken in that direction; and in conse- quence of this negligence, the city has continued to use the water for power beyond the necessity of consumption, thus violating her duty in regard to the navigation by drawing unneces- sarily upon the stream. The injury to the navigator is therefore the result of negligence on the part of the city, concurring, if you choose, with the providential act. But, in deciding upon the question of illegality in drawing off the water from the navi- gation, we are carried beyond its use for poiver, to inquire into the character of the consumption claimed as an over- ruling necessity. " We have already seen that the city is a large vendor of water, from ■which she is deriving revenue, for all the purposes of the arts, manufactur- ing, business, and pleasure. The uses are not domestic, that is, such as are for the preservation of the life and health of the population and their creatures, but are simply utilitarian or business uses, and far exceed those needed for domestic purposes. And even as to those termed domestic, a distinction must be noted between the use proper and that which is lavishly expended in pavement washing, baths, 126 &c. It is perfectly obvious, therefore, that the city drew off the water not only for driving and lifting power, but for a consumption far beyond any im- perious necessity, and for purposes wholly subordinate to the right of nav- igation. She cliose to prefer the pe- cuniary interest of her citizens, and doing an injury thereby, she must make compensation to the injured par- ties. I mean not by these remarks to draw any comparison between the im- portance of the use of the water for the great purposes of industry, wealth, and cleanliness of a city so populous as Philadelphia, and the use of it for navigation during a few days of drought. The question for us is that of legal right, not comparative weight. Such important interests as those of the city are likely to lead to the sub- stitution of might for right, yet they are not of that imperious necessity which justifies might, and changes wrong into right. As administrators of the law, we cannot bend or break the law before a large interest, more than we can before one that is small. The doctrine of imjjerious necessity is not in this case." 1 Byrne v. Boadle, 2 H. & C. 722; Vaughan v. Taff Vale R. C. 5 H. & N. 679; Skinner v. London, Brighton & S. C. 11. C. .5 Exch. 787-9; Freeman- tie V. London & N. W. R. C. 10 C. B. N. S. 89; Great West. R. C. of Can- ada V. Braid, 1 Moo. P. C. N. S. 101. 2 Cotton V. Wood, 8 C. B. (K S.) BOOK I.] CAUSAL CONNECTION. [§ 130. VI. INDISCRETION OR CONCURRENCE OF PARTY INJURED. § 130. " Contributory Negligence," as it is called in our own law, is discussed at such length in a future chapter,^ that it is not 569; Toomey v. Brighton Ry. Co. 3 C. B. (N. S.) 146; Ilammack v. White, 11 C. B. (N. S.) 588; Wel- fare V. Brighton R. R. 4 Q. B. 693. In Livezey v. Philade]j)liia, 64 Pa. St, 106, the evidence was, tliat, in an extraordinary flood, a bridge was carried away and thrown upon land of a lower owner, and damaged it. It was held, that without more, a presumption that it was negligently constructed did not arise. It was further ruled, that when a bridge was washed by a flood on a non- navigable river, upon the land of a lower owner, that it was not the duty of the owner of the bridge to remove it. Sharswood, J. :...." As to the ground of negligence, it may be dis- missed with the remark that there was no evidence whatever of any in- sufficiency in the construction or fas- tenings of the bridge. Had it been carried away by an ordinary freshet, a presumption to that effect might perhaps have arisen. But it was a clearly proved and uncontradicted fact, that the freshet in which the dis- aster occurred was a most unusual and extraordinary one, — greater and more destructive than was ever known to happen before or since ; that the water in the stream rose ten feet above its ordinary level. The accident took place in the night-time, and no one appears to have seen it ; but the great probability seemed to be, in the opin- ion of the witnesses examined, that it would have stood had it not been butted against by a wooden bridge carried down by the flood from higher up the creek. " For this accident, therefore, and all damages resulting from it, direct or consequential, the defendants ought not to be held liable. Actus Dei nemini facit injuria. The concurrence of negligence with the act of Provi- dence, where the mischief is done by flood or storm, is necessary to fix the defendants with liability. ' Wlien a loss,' says C. J. Gibson, ' happens ex- clusively from an act of IVovidence, it will not be pretended that it ought to be borne by him whose superstructure was made the immediate instrument of it.' Lehigh Bridge Co. v. Lehigh Coal & Navigation Co. 4 Rawle, 24. " The bridge, in this instance, lodged in the bed of tha creek, which is not a navigable stream, and has never been declared a j)ublic highway, and the place where it lodged was the plaintiff's own soil. 'I he injury al- leged to have been suffered was from the diversion of the water caused by this obstruction, and the contention on the part of the plaintiff" now is, that it was the duty of the defendants after reasonable notice, which was proved to have been given, to have removed it, and that having failed to do so, they are resi)()nsii)le for the consequences. But the riitio ileciiltndi in Forster v. Juni;ita Biiilge Co. 4 Harris, 393, which seems not only founded on sound principles but to be a logical deduction from the Lehigh Bridge Co. r. Ti»e Lehigh Coal & Navigation Co. 4 Rawle, '24, does not support this conteation. It was ihero 1 Infra, § 300. 127 § 131.] NEGLIGENCE : [BOOK I. necessary at present to do more than to state in what it con- sists, and on what it rests. A person who by his own negli- gence, such is the general rule, causes damage to himself, cannot recover compensation from another person on the ground that if it had not been for the negligence of the latter the damage would not have occurred. But, to defeat such recovery, the neg- ligence of the party injured must have been in itself of such a character as to have drawn on him the hurt, and he must have been an independent moral agent, he not acting compulsorily or without opportunity of reflection. Roman law. — The Roman law is explicit to this effect. First comes the cardinal maxim, Quod quis ex culpa sua damnum sentit, non intelUgitur damnum sentire} In other words, the harm which my negligence brings to me I am to be considered as not having received. So far as my relations to others are con- cerned, the harm is uncaused. The law is thus given by Paulus in the concrete : " Ei qui irritatu suo feram bestiam vel quamcun- que aliam quadrupedem in se proritaverit, eaque damnum dederit, neque in ejus dominum neque in custodem actio datur."^ So, also, in a well known opinion of Ulpian : — " Quarrivis nee illud male dicatur, si in loco periculoso sellam habenti tonsori se quis coramiserit, ipsum de se queri debere." § 131. But it must be remembered that this doctrine of con- tributory negligence ceases when the person primarily inflicting the injury was either in dolo, or guilty of gross culpa which may said that in such a case, where there Watts, 65, that a riparian owner is no negligence in the first instance, has neither lien nor claim for pre- the sufferer must get rid of the instru- serving a raft cast on his land ; ment and the injury as he may. ' The and this on the authority of Doc- company were not bound,' said Gib- tor & Student, c. 51, in which it son, C. J., 'to follow the wreck of is said that a man who has aban- their bridge. They might abandon it doned his property may at any time without incurring responsibility for it; resimie the ownership of it.' The and the defendant, after notice given, facts that after notice from the plain- might have disincumbered his land of tiffs, the city made an effort to remove it by casting it back into the river; the obstruction, or failing in this that but he could not appropriate it to his they sold it to another, who made a own use. He certainly might have second unsuccessful attempt, are cir- removed it at his own expense, but cumstances which in no way vary the the refusal of the company to remove case." it did not divest their property in i L. 20. de R. 3. 50. 17. it or bar their entry to reclaim it. ^ ^^ g j_ J5 g 3_ It was held in Etter v. Edwards, 4 128 BOOK I.] CAUSAL CONNECTION. [§ 132. be assimilated to dolus. The consequences of negligence can only be imputed to me, it has been already seen, when they are the regular and natural consequences of my negligent act ; nor does it vary the case if we accept, as is sometimes done, instead of the latter qualification, the proviso, that such consequences could have been reasonably foreseen. It is not a regular sequence of ray negligence that another person, acting according to his own lights, should be independently negligent ; nor is such indepen- dent negligence something which I could reasonably foresee. But if I do foi'esee it ; or if I design to injure a person who negli- gently comes in my way ; or if I am grossly careless in the use of dangerous agencies, so that mere trespassers who wander within the range of these agencies are hurt, — then the prior negligence of the party hurt by me cannot be set up by me as a defence.^ § 132. Doctrine of " contributory negligence " not to he based on maxim volenti non fit injuria. — The principle that causal con- nection is broken by the independent negligence of the party in- jured is sometimes based on the maxim volenti non fit injuria ; it being argued that, because the injured person consents to be injured, he cannot recover damages for the injury. But this reasoning rests on the mistaken assumption that consent is in such case given, which is incompatible with the supposition that, as is essential to negligence, there is no consent at all. Negli- gence, to state this in other words, necessarily excludes a condi- tion of mind which is capable either of designing an injury to another or of agreeing that an injury should be received from another. To contributory negligence, therefore, the maxim vo- lenti non fit injuria does not apply, because a negligent person exercises no will at all. The moment he ivills to do the injury, then he ceases to be negligent, and the case becomes one of malice or fraud. The Roman law has been quoted to sustain the idea that such negligence by the party injured may be a bar, on the ground that volenti non fit injuria; but the Roman law, as Per- nice 2 shows by a copious criticism of the authorities, holds no such thing. Nor is this the only reason for refusing in such case to acknowledge the applicability of the maxim volenti non fit injuria. No agreement, it has frequently been held, to relieve negligence from its liabilities, will be sanctioned by the courts ; and if so, we cannot hold that a person by merely consenting that 1 See infra, § 300, 345. 2 Qp. cit. p. 61. 9 129 § 135.] INTERVENING NEGLIGENCE : [BOOK I. another shall negligently injure him can shut himself off from re- covering damages if such negligent injury be actually inflicted. § 133. " Contributory negligence " is a bar, because the plaintiff, by intervening, breaks the causal connection between the injury received by himself and the defendants negligence. — This rule, as will presently be seen, applies to all intervention of indepen- dent and responsible persons. If so, it applies to the intervention of the plaintiff himself, with the additional force derived from the principle that no man is to be permitted to have a compensation for his own wrong.^ VII. INTERPOSITION OF INDEPENDENT RESPONSIBLE HUMAN AGENCY. § 134. Causal connection is broken by interposition of such agency. — Supposing that if it had not been for the intervention of a responsible third party the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action. I am negligent on a particular subject matter. Another person, moving independently, comes in, and either neg- ligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a non- conductor, and insulates my negligence, so that I cannot be sued for the mischief which the person so intervening directly pro- duces. He is the one who is liable to the person injured. I may be liable to him for my negligence in getting him into difficulty, but I am not liable to others for the negligence which he alone was the cause of making operative. § 135. This principle, of leading importance in the law of negligence, will now be illustrated in detail : — Roman law. — Causal connection may be interrupted, says Baron, a distinguished contemporaneous commentator, by the in- tervention of an independent agency, though the act whose operation was thus anticipated was of itself calculated to produce the particular evil. Hence it has been ruled that a person who mortally wounded a slave could not be held liable for the lat- ter's death, when, before death ensued from such wounding, a third person came in and gave the slave another wound of which 1 See infra, § 300. 130 BOOK I.] CAUSAL CONNECTION. [§ 1-36. he immediately died.^ The same ruling has been made in our own country, on an indictment under similar circumstances for hom- icide.2 But the causal connection is not broken when, after the in- jury has been inflicted, an event occurs which would have brought about the same injury, if it had not already occurred: neque enim ex post facto decrescit ohligatio.^ Thus, in the case of two woundings, above mentioned, the person inflicting the first wound would be liable for such wound, because that was inflicted before the attack of the second assailant; though not for the death, because that occurred after the second assailant inflicted his wound. So a person who injures another's property cannot defend him- self in a suit for the injury, on the ground that immediately after the injury the property was destroyed in a general conflagration.* § 136. Anglo-American law. — With us, it is true, the prin- ciple, in the terms in which it is here expressed, has not received the prominent recognition assigned to it in the Roman law ; though not unfrequently has it been accepted almost in the language in which it has been just stated.^ 1 L. 11. § 3; L. 15. § I; L. 52. pr. D. ad L. Aquil. 9. 2 ; L. 4. de imp. 25. 1. 2 Wh. Cr. L. 7thed. § 941. ^ See passages to this point cited by Baron, § 243. * L. 7. § 4. i. f. quod vi. D. 43. 24; L. 37. D. mand. — 17. 1; and other passages cited by Baron, § 243. 5 See Grain v. Petrie, 6 Hill, N. Y. 622; Stevens v. Hartwell, 11 Mete. 542; Saxton v. Bacon, 31 Vt. 540; Bk. of Ireland r. Evans, 5 H. of L. Cas. 389 ; Mangan v. Atterton, Law Rep. 1 Exch. 239 ; Ashley v. Harrison, 1 Esp. 48; Fitzsimmons v. Inglis, 5 Taunt. 534 ; Hoey v. Felton, 11 C. B. N. S. 142 ; Walker v. Goe, 4 H. & N. 350 ; Tooiney v. R. R. 3 C. B. N. S. 145 ; Welfare v. Brighton R. R. Co. 4 Q. B. G93 ; Pensac. & G. R. R. v. Nash, 12 Florida, 497; Shepherd v. Chelsea, 4 Allen, 113; Richards v. Enfield, 13 Gray, 344. And see par- ticularly cases cited infra, § 439 et seq., 934. In Cuff I'. Newark & N. Y. R. R. 35 N. J. 17, the question was dis- cussed with an ability and judicious- ness which require special notice. In this case it appeared that the Newark and New York Railroad Company contracted with F. & Co. for the graduation of their road-bed. With the consent of the company, F. & Co. sub-contracted rock exca- vation with one S. Before the sub- contract was made, it was understood by the contractors and by the officers of the company that the rock would be removed by S., by blasting with nitro-glyecrine ; a magazine for stor- ing the nitro-glycerine was located on the company's land, under tlie direc- tion of their engineer. By the con- tract, the contractors were forbidden to sublet without the company's con- sent, and were recjuired to discharge incompetent anil disorderly workmen, when required so to do by the com- pany's engineer. S., without the knowledge of the company, stored in the magazine certain cans of glycerine 181 § 13T.] INTERVENING NEGLIGENCE [book I. § 137. For several reasons we must maintain that in our own jurisprudence, as well as in that of Rome, causal connection is ■which belonged to the United States Blasting Company, and which he kept there for sale on the orders of the Blasting Company. An order for glycerine being sent to S. by the Blasting Company, his foreman di- rected B., one of his employees, to fill the order. B., in doing so, removed one of the Blasting Company's cans from the magazine a distance of one hundred and fifty yards, but not off" the company's lands, and there, by his negligence, an explosion occurred, by which the deceased was killed. B. was employed by S. specially to take charge of the nitro-glycerine in the magazine, and was an incompetent person for that business. In an action ao^ainst the railroad company and F. & Co., the contractors, by the admin- istratrix of the deceased, to recover damages for his death, it was held by the supreme court: That the stipu- lations in the contract between the railroad company and the contractors, as to sub-contracting, and the removal of incompetent employees, did not cre- ate the relation of master and servant between the railroad company, or F. & Co., and the servants of the sub- contractor ; nor raise a duty for the non-performance of which an action could be maintained by third persons against the railroad company, or F. & Co., for injuries resulting from the negligence of an employee of the sub- contractor. It was further held : That the permission of the company that S. might use their lands for a maga- zine in which to store oil necessary for the operations of blasting on the work, did not authorize him to use them for the purpose of engaging in a traffic in oil which belonged to others. And it was finally ruled : That the company were not answerable for in- 132 juries to third persons, which hap- pened through the negligence of a servant of S. in the management of nitro-glycerine, which belonged to an- other company engaged in the manu- facture of that article, and which had been clandestinely stored in the maga- zine by S., and was kept by him for sale on the orders of its owners, without the knowledge of the com- pany. The following is extracted from the opinion of Depue, J. : — " In other cases the intervention of the independent act of a third person between the wrong complained of and the injury sustained, which was the immediate cause of the injury, is made a test of that remoteness of damage which forbids its recovery. Ashley v. Harrison, 1 Esp. 48; Mylne v. Smith, 2 Dow's Pari. Rep. 390; Fitzsimmons V. Inglis, 5 Taunt. 534 ; Hoey v. Fel- ton, 11 C. B. N. S. 142; Daniels v. Potter, 4 C. & P. 262; Haddan v. Lott, 15 C. B. 411; Walker v. Goe, 4 H. & N. 350 ; Parkins v. Scott, 1 H. & C. 152; Crain v. Petrie, 6 Hill, 522; Stevens v. Hartwell, 11 Met. 542 ; Toomey v. Railway Co. 3 C. B. N. S. 145; Williams v. Jones, 3 H, & C. 256 ; Mangan v. Atterton, Law Rep. 1 Exch. 239; Bank of Ireland r. Evans, 5 H. of L. Cases 389, 397. " Tested by the principle above stated, it is obvious that the injury received by the deceased, from which death resulted, is too far removed from the act of the company to im- pose a liability for it upon them. It did not result naturally or proximately from the nuisance they permitted on their lands, but was caused directly by the unauthorized and independent act of a third person intervening between BOOK I.J CAUSAL CONNECTION. [§ 137. broken by the interposition of independent negligence. These reasons are as follows : — the nuisance they consented to and the injury. " Shaff ner had clandestinely applied the magazine to an use for which he had not the permission of the com- pany, and engaged in a business which was not connected with his contract. Permission to use their lands for the limited purpose of storing materials for the execution of the work, did not authorize him to use them for the purpose of engaging in a dangerous traffic, in the prosecution of which the injury resulted. It cannot be insisted, therefore, that the liability of the de- fendants flows from their consent to the use of their lands for the business in which Burns was employed when the accident happened. The nuisance relied on to fix the defendants, is the storage of nitro-glycerine in the mag- azine, by their consent. The injury was not caused by an explosion in the magazine. Burns had removed the can from the magazine a distance of one hundred and fifty yards. If he had taken it on the work, to use it in blasting, and, there, persons had been injured by his negligence, the com- pany could not be held for the inju- ries, notwithstanding their consent to the use and storage of nitro-glycerine on their premises for the prosecution of the work, unless its use in blasting was a nuisance. The disconnection of his act from the nuisance of the storage of the oil, to which the com- pany had consented, is the more ap- parent when it is considered that the oil, in the management of which the explosion occurred, was kept in the magazine without the knowledge of the company, and that the disaster happened in a business which Shaffner was not authorized to engage in on the company's land. Between his act and their illegal act there was no such connection that the latter can be said to have been the cause of the former. " A. places a log in the highway, which B. casts into an adjoining close — or puts an obstruction upon the sidewalk, which passers-by throw into the roadway of the street, and a trav- eller is injured by coming in contact with it. A. cannot be held for the trespass in the one case, nor for the injury in the other. Or, to take an illustration more nearly connected with the facts of the case, suppose Burns, by command of Shaffner, had carried the can to Jersey City, and there, by his negligence, it had exploded and injury had resulted, could an action be maintained against the company for such injuries, based upon an alle- gation of liability, arising from a nui- sance which consisted in the storing of the explosive on their lands at Ber- gen? If not, it is manifest that the action in this case cannot be sup- ported. That the injury happened on their lands can make no dift'ercnce, if the business in the prosecution of which it resulted was transacted there by Shaffner, without the au- thority of the company. If the case had shown that they had consented to the use of their land for the traffic in which Shaffner had engaged, thoy might have been hold for any injuries that resulted immediately in connec- tion with the transaction of that busi- ness. No such case was made at tho trial. The injury was not caused by the nuisance which had the approba- tion and consent of the company. Their consent was to the erection of a mao^azine to be used for the limited purpose of storing materials for tho necessary operations of their works, 133 § 138.] INTERVENING NEGLIGENCE: [BOOK I. § 138. To attach to an antecedent negligence the consequences arising from a subsequent negligence is inconsistent with the legal doctrine of causation. — It has already been seen that there are two views of causation, so far as concerns liability for negligence. The first view is that a person is liable for all the consequences which flow in ordinary natural sequence from his negligence ; the second that he is liable for all the consequences that could be foreseen as likely to occur. Can we regard the independent action of intelligent strangers as something that is in conformity with ordinary natural law, or as something that can be foreseen or preascertained ? Of course, as a matter of theory, this opens interesting metaphysical and psychological questions which it would be inappropriate here to discuss. But as a matter of practice, can there be any question that, whatever may be the case in reference to an Omniscient eye, the actions of other persons, so far as we are concerned, viewing them as individuals, are not the subjects either of accurate precalculation or of foreknowledge ? Is this not eminently so with regard to the negligetices of others ? We may to some extent assume that a malicious man may, under certain circumstances, do malicious things. But while we know that the best business men are sometimes negligent, it is impossible for us to come in advance to any conclusion as to the points to which such negligence will apply. To require us to act in such a way that no negli- gences on our part may be the conditions of negligences on the part of strangers, would be to require us to cease to be. If we do nothing, we negligently omit to do something that we ought to do. If we do something, owing to the imperfection of all things human, there will be some taint, no matter how slight, of imper- fection in the thing we do. Yet, whether in doing or omitting, we touch more or less closely multitudes of persons each with a free will of his own, each with idiosyncrasies with which we have no acquaintance, each of whom may by some negligence cross in the handling and management of said to have afforded an opportunity which Burns would have been con- for the unauthorized act of Shaffner tinually under the observation of oth- in appropriating it to another use, and ers engaged on the works, who would the negligent act of Burns, who, in have detected any unfitness for his law, is a stranger to the defendants, business arising from intoxication. At and for whose acts Shaffner alone is most, consent to the erection of the responsible." magazine for that purpose can only be 134 BOOK I.] CAUSAL CONNECTION. [§ 139. our path, and make action on our part which is innocuous in itself, injurious. Reserving for another point the consideration of the consequences resulting from this indefinite extension of vicarious liability, we may now ask whether, on elementary principles, the action of an independent free agent, taking hold unasked of an impulse started by us, and giving it a new course productive of injury to others, does not make him the juridical starting-point of the force so applied by him, so far as con- cerns the persons so injured ? For the spontaneous action of an independent will is neither the subject of regular natural sequence, nor of accurate precalculation by us ; and if not, it cannot be said to have been caused by us. In other words, so far as concerns my fellow-beings, their acts cannot be said to have been caused by me, unless they are imbecile, or act under compulsion, or under circumstances produced by me which give them no opportunity for volition. This distinction is brought out as fundamental by De Grey, C. J., in a remarkable case which has been already fully cited.^ That case, it will be recollected, was that of a squib, which, when tossed by the defendant on a table in a market-place, was thrown by the person guarding this table at B., and by B. at C, who was struck on the eye and injured by the exploding of the squib. Did the interme- diate parties act merely mechanically in sudden convulsive ac- tion, to avoid the squib exploding on themselves, or did they act either mischievously or inadvertently^ having opportunity to consider the risk, but not using such opportunity ? " It has been urged," says this learned chief justice, " that the intervention of a free agent will make a difference ; but I do not consider Willis and Ryal (the intermediate parties) as free agents in the present case, but acting under a compulsory necessity for their own safety and self-preservation." He concedes, therefore, that if Willis and Ryal had been " free agents," the defendant would not have been liable. In other words, the intervention of a " free agent" breaks causal connection.^ § 139. Mischievous consequences of making one man liable for ^ Scott V. Shepherd, supra, § 95. force or power has intervened of itself, 2 " One of the most valuable of the sufficient to stand as the cause of the criteria furnished us by the authorities mischief, the other must be considered is to ascertain whether any neto cause too remote." Ins. Co. v. Tweed, 7 has intervened hetioeen the fact accom- Wallace, 44. plished and the alleged cause. If a neiv 135 § 140.] INTERVENING NEGLIGENCE : [BOOK I. another^ 8 ner/h'c/ence. — Where would such vicarious liabiHty end ? We none of us can do any act perfectly ; and these imperfections necessarily multiply when we deal in large business concerns, such as mills, banks, shipj^ing, and railroads. It is very important that when we negligently set natural forces in action we should be liable for the damage these misdirected forces produce. But if another person comes in, and of his own free will takes a new de- parture, how can we be made liable without extending our liability indefinitely ? Waiving the point just noticed, that as we did not force him to do the thing, we cannot be called its cause, there is no reason which will render us liable for the negligence of such second person supervening on our negligence, that would not bind us for the negligence of a third person supervening upon that of the second intruder. " Three actions for a single act," exclaims Blackstone, J., when commenting on this extension of liability in the case just cited, where, however, the extension was only defended on the ground that the intermediate parties were not free agents, "nay, it maybe extended in infinitum.^ ^ For, to adopt Chief Justice De Grey's statement, " the immediate act needs not be instantaneous, but a chain of effects connected to- gether will he sufficient.''^ If, for instance, a ball is negligently left by A. on a road, and B. negligently throws it at C, and C. neg- ligently throws it at D., and D. neglects to put it out of the way, and E. stumbles on it and is hurt, then A. is liable for E.'s negli- gence, and so on without limit as to time. The consequence of this would be that capital would be obliged to bear the burden, not merely of its own want of caution, but of the want of caution of everybody else. If an injury occurred through negligence, the " chain of effects " (assuming on this hypothesis that one per- son's free action is the " effect " of another person's causation), will be traced back until a capitalist is reached, and he, being thus made the cause, would be made liable for all the subse- quent negligences of others on the same subject matter. If this law be true, no man of means could build a steam-engine, or even a house. For there is no steam-engine so constructed but that some precaution is omitted which could have protected it from negligence of an incompetent intruder ; no house is built which could not have been so constructed that no meddler could neg-li- gently cause it to become in some way an inconvenience to others. § 140. This extension of vicarious liability inconsistent with the 136 BOOK I.] CAUSAL CONNECTION. [§ 142. express limitations of the law. — We certainly know something about vicarious liability, for on this principle rest the noxal ac- tions of the Roman law, and that portion of our own law which makes a master liable for his servant's negligence when in the scope of his service. But the limitations with which both the Roman law and our own guard this liability show how perilous the principle is considered to be, and how exclusively it is made to rest, not upon a general doctrine of causation, but upon a mere special policy based on the relation of master and servant. For neither the Roman law nor our own says that the master is liable for the servant because the master causes the servant's action, but simply because the master, having the function of employing and discharging the servant, is liable for negligence in such defective exercise of this power as works injury to others ; and because what the servant does within the scope of his office is presumed to be done under the master's orders. Nor even though the relationship of master and servant exist, does this liability apply to anything to which the relationship of master and servant does not touch. In other words, as will be hereafter seen at large,^ vicarious liability only exists in cases where one man agrees to be liable for another's conduct, or where such agreement is to be presumed, as to a particular subject matter, from the relation of master and servant. This view disposes of the whole question of vicarious liability for strangers unless such strangers are, either from imbecility, unconsciousness, or compulsion, subject to the laws of material causation. § 141. Illustrations of doctrine that succeeding negligence of third person breaks causal connection. — The illustrations of this doctrine are numerous and of various degrees of intensity. Among these may be noticed the following : ^ — § 142. In a Massachusetts case ^ the evidence was that a boy bought some gunpowder, and, in the absence of his parents, put it in a cupboard in his father's house with the knowledge of his aunt, who had charge of him and of the house whik^ his parents were away. A week afterwards his mother gave him some of the powder and he fired it off with her knowledge ; and some days later he took, with her knowledge, more of the powder out of the 1 See infra, § 15G-7. Vicars r. Wilcoeks, 8 East, 1. See 2 Grain v. Petrie, 6 Hill N. Y. 522 ; Gate v. Gate, 50 N. H. 145. » Carter i;, Towne, 103 Mass. 507. 137 § 144.] INTERVENING NEGLIGENCE : [BOOK I. cupboard, fired it off, and was injured by the explosion. It was held that the causal connection between the injury and the orig- inal negligent sale was broken, and that the seller was therefore not liable to the child for the injury. " The testimony," said Gray, J., " introduced for the plaintiff at the trial, discloses quite a dif- ferent case from that alleged in the declaration, which was held sufficient when the case was before us on demurrer ; and shows that the gunpowder sold by the defendants to the plaintiff had been in the legal custody and control of the plaintiff's parents, or, in their absence, of his aunt, for more than a week before the use of the gunpowder by which he was injured. Under these circum- stances, that injury was not the direct or proximate, the natural or probable, consequence of the defendant's act ; and the jury should have been instructed, in accordance with the defendant's request, that there was no legal and sufficient evidence to author- ize them to return a verdict for the plaintiff." And the same rule applies to other intervening negligences. ^ § 143. So where A. makes a fire negligently, but no mischief would result were it not from the negligence of B., who by tam- pering with the fire causes it to spread to C.'s field. Here C. has no claim against A. supposing that B. is a free and rational agent. It would be otherwise, however, if A. built the fire negligently in a field where children were accustomed to play. Here it would be natural that the children should play with the fire ; that they should do so is what the defendant should have foreseen ; they are in some sense from their infancy irresponsible. Hence their acts are within the probable consequences of the defendant's neg- ligence; and, not constituting an independent liability, do not break the causal connection between the defendant's negligence and the injury.^ § 144. At the same time, the fact that another person contributed either before the defendants interposition or concurrently with such interposition in producing the damage is no defence. — Indeed this proposition, instead of conflicting with the last, goes to sus- tain it. A. negligently leaves certain articles in a particular place. B. negligently meddles with them. Supposing B.'s negli- gence to be made out, and he be a responsible person under the limitations above expressed,, he cannot set up A.'s prior negli- ^ Supra, § 90, 91. a horse is negligently left in a street, 2 See this illustrated in cases where supra, § 100-7 ; infra, § 147. 138 BOOK I.] CAUSAL CONNECTION. [§ 145. gence as a defence. A fortiori, he cannot set up the concurrent negligence of D., a third person, who may simultaneously join him in the final negligent act. It is in this sense we must construe the language of Colt, J., in a Massachusetts case.^ " It is no answer," he said, " to an action by a passenger against a carrier, that the negligence or trespass of a third person contributed to the injury. These propositions would be more manifest if this action had been brought in form upon the implied undertaking of the defendants, but the plaintiff may elect to sue in tort or con- tract, and the rule of duty is the same in either form of action.^ Even if no privity of contract existed, and the injury was the re- sult of the joint acts of defendants and the owner of the load of hay and the Eastern R. R. Co., it would furnish no defence to this action ; for in actions of this description nonjoinder of the defendants cannot be availed of in bar. And this is true, al- though the party contributing by his negligence was acting with- out concert with and entirely independent of the defendants." ^ § 145. Nor when a negligence subsequent to that of the defend- ant is the agent hy which the defendant' s negligence proves injuri- ous can the subsequent negligence be a bar to the plaintiff'' s re- covery if such subsequent negligence was likely, in the usual and natural order of things, to follow from the defendants negligence. — This proposition has been already adequately illustrated."* A case which sustains it in result though not in the reasoning of the court, may be here specifically noticed.^ The defendants, a gas company, having contracted to supply the plaintiff with a service-pipe from their main to the meter on his premises, laid down a defective pipe from which the gas escaped. A servant of a gas-fitter, engaged by the plaintiff to lay down the pipes lead- ing from the meter over the premises, took, and without the exer- cise, it was assumed, of due caution, a lighted candle for the pur- pose of finding out whence the escape proceeded. An ex|)losion then took place, whereby damage was occasioned to the plaintiff's premises, to recover compensation for which the plaintiff brought 1 Eaton V. Boston & L. R. R. 11 3 lUidge v. Goodwin, 5 C. & P. Allen, 505, 190. 2 Warren v. Fitchburrr R. R. 8 Al- * See supra, § 108. len, 227; Ingall v. Bills, 9 Met. 1; ^ Burrows v. The March Cis & McElroy v. Nashua & Lowell R. R, Coke Co., L. R. 5 Exch. 67 (affirmed 4 Cush. 400; Sullivan v. Philadelphia, L. R. 7 Exch. 9G). &c. R. R. 30 Penn. State R. 234. 139 § 146.] INTERVENING NEGLIGENCE : [BOOK I. his action against the defendants. It was correctly ruled, that the causal connection between the defendant's negligence and the damage was not broken by the intervention of the gas-fitter's ser- vant. " The defendants," said Kelly, C. B., " having been guilty of negligence by which the accident was caused, the plaintiff is entitled to maintain his action to recover compensation from the defendants for the damage occasioned to his property." " It was argued for the defendants," said Pigott, B., " that the damage was too remote. Now, the mere fact that there is another cause brought in without which the damage would not have occurred does not, in my view, make the first and main cause a remote cause of the damage ; it can only disentitle the plaintiff to recover in cases where the ground may be taken that he has contributed that without which the damage would not have occurred. It seems to me that the escape of the gas was plainly the proxi- mate cause of the damage of which the plaintiff complains. If that be so, though there is another cause without which the ex- plosion would not have happened, yet that does not disentitle the plaintiff from recovery, unless he can be affected by the negligent conduct of Sharratt " (the workman), " and so must be taken to have contributed to the damage. I do not think that the plain- tiff is responsible, &c. As my lord has put it, there were two independent contractors employed by the plaintiff to do work upon the premises. Both are guilty of negligence, by which the plain- tiff sustains considerable damage. Is the plaintiff disentitled to complain of the negligence of one because the other contributed to the damage ? It seems to me he ought to be entitled to com- plain of both, and to be able to recover against both. The fact that he is entitled to recover against one cannot deprive him of his right to recover against the other." The true reason is, that he who so negligently constructs gas- pipes that gas escapes from them and fills a room is Hable for all the regular and natural consequences of such negligence ; among which consequences it is impossible to exclude the possibility of a person coming with a light into the room where the gas is col- lected. § 146. The same distinction may be illustrated by a New York case in which it appeared that A. negligently caused a leak in a gas-pipe in the cellar of an occupied house. The cellar filled with gas, and on a match being lighted by B., an explosion took place. 140 BOOK I.] CAUSAL CONNECTION. [§ 147. If B. is ignorant of the gas being in the cellar, and if such igno- rance is not properly chargeable to him as negligence, then A. is liable for the consequences of the explosion. But if B. has notice, or is bound to take notice, of the leakage, then B., in lighting the match in the cellar, is guilty of negligence, which breaks the causal connection between A.'s negligence in causing the leak and the explosion. 1 § 147. Other cases resting on this distinction may be noticed. Thus where, in a case already cited, the defendant left his horse and cart standing in the street without any person to watch them, and a stranger by striking the horse caused it to back upon a shop window, it was held in England that the defendant was liable for the damages. ^ So the same result was obtained where some children played with and were hurt by a horse and cart negligently left in a thoroughfare.^ If the mischief in these cases was caused by simply that casual and irrespon- sible contact which is an ordinary incident of thronged streets, then the decisions reached are sustainable on the principle that a negligent person is liable for all the ordinary and natural conse- quences of his negligence.^ This is all that they actually decide ; and it is substantially on this ground that the decision in the last case is put by Lord Denman. To extend them so far as to sustain the position that a person who leaves a horse on a street is liable for whatever a stranger may do with the horse, would extend the doctrine of vicarious liability to an extent inconsistent with both reason and authority.^ That liability, as is elsewhere shown, is confined mainly to the relation of master and servant ; and even in that relation is limited to the servant's acts when in the sphere of his employment. If my vicarious liability for another's negligence is established by the mere fact of my prior negligence, then I am not only liable for the conduct of strangers, as to whom (as is the case with master and servant) I exercise neither selec- tion nor control, but I am liable for all future negligences, in endless series, of which these negligences may be antecedents. ^ Lannen v. Albany Gas Co. 44 N. ^ Lynch v. Nurdin, 1 Q. B. 36; su- Y. 459. pra, § 112, 113. 2 Illidge V. Goodwin, 5 C. & P. 192 ; * See supra, § 73. supra, § 112-3. ' See infra, § 156. 141 § 150.] INTERVENING NEGLIGENCE : [BOOK I. VIII. INTERPOSITION OF INTERMEDIATE OBJECT, WHICH, IF DUE CARE HAD BEEN TAKEN, VV^OULD HAVE AVERTED DISASTER. § 148. Intermediate dams or water-courses in cases of freshets. — Of course if " a head of water," to adopt Cli. J. De Grey's illustration, " is cut down," and another's pond is overflowed, then, though the water may be swollen by several subsidiary streams, the party negligently letting the water loose is liable for the injury, supposing the stream flows directly from his field to that of the plaintiff. But supposing the stream flows into another pond, and the owner of that pond, neglecting to properly guard it, permits it to overflow, so that a series of ponds and then of meadows are in this way flooded, can the person last flooded re- cover damages from the person first " cutting down the head of water?" Could the owner of a river bank recover in this way from the person who many miles away opened a water-course that flooded a pond, that then flooded another pond, and then, after a series of accessions and diversions, when there was abundant opportunity on the part of others to have diverted this mischief, did something towards raising the volume of the river ? Could the owner of a sea-wall recover on the ground that the ocean had been thus unduly flooded ? Of course when the question is so presented we say no ; but if not, when does the liability stop ? At what point, in this series of overflowings, does the causal connection of the first negligence with the last injury cease ? § 149. Litermediate buildings in cases of fire. — A similar question arises as to fires. A house is negligently permitted to take fire ; another house, some distance off, being built negli- gently of material easily ignited, catches fire from the first, and then communicates the fire to a third, which, if properly built and guarded, would not have thus caught. The third house then communicates the fire to a fourth, and then, through the negli- gence of the fire department, to a fifth, and then, through an ex- plosion of inflammable oils, to a sixth. Is the person to whose negligence the first fire was due to be chargeable with the sixth ? Of course we will all hold that in such case the liability must stop somewhere. The question is as to where this point is to be. § 150. The only rule to which we can resort is that just noticed, that causal connection ceases when there is interposed 142 BOOK I.] CAUSAL CONNECTION. [§ 150. between the negligence and the damage an object which, if due care had been taken, would have prevented the damage. If a stream passing through a series of fields is properly guarded in each field, a flooding of lower fields may be checked. If a house is properly built, if it is properly watched, if a proper fire apparatus is in operation, it can be prevented, when a fire approaches from a neighboring detached house, from catching the fire. This view has been adopted in Pennsylvania in a case^ where an engine on a railroad negligently set fire to a warehouse belonging to the plain- tiffs, and the fire from the house communicated to other buildino-s of the plaintiff, one thirty-nine feet from the warehouse, and the other eighty from it. It was held by the supreme court, that the railroad company were not liable for damages to the last buildino- and its contents. And the same view has been taken in New York.^ 1 Penn. R. R. Co. v. Kerr, 62 Pa. St. 353. 2 Ryan V. N. Y. Cent. R. R. 35 N. Y. 210. " It has always," said Thompson, C. J., in Penn. R. R. v. Kerr, " been a matter of difficulty to determine judicially the precise point at which pecuniary accountability for the con- sequences of wrongful or injurious acts is to cease. No rule has been sufficiently defined and general as to control in all cases. Yet there is a principle applicable to most cases of injury which amounts to a limitation. It is embodied in the common law maxim, cau^a proxima non remota spectahtr, — the immediate and not the remote cause is to be considered. Pars, on Cont. vol. 3, p. 198, illus- trates the rule aptly by the supposi- titious case of debtor and creditor, as follows : ' A creditor's debtor has failed to meet his engagements to pay him a sum of money, by reason of which the creditor has failed to meet his engagement, and the latter is thrown into bankrui)tcy and ruined. The result is plainly traceable to the failure of the former to pay as he agreed. Yet the law only requires him to pay his debt with interest. He is not held for consequences which he had no direct hand in pro- ducing and no reason to expect. The immediate cause of the creditor's bankruptcy was his failure to pay his own debt. The cause of that cause was the failure of the debtor to pay him ; but this was a remote cause, being thrown back by the in- terposition of the proximate cause, the non-payment by the creditor of his own debt.' This I regard as a fair illustration of what is meant in the maxim by the words ' proxima ' and ' remota.' See also notes, same volume, p. 180. " In Harrison v. Berkley, 1 Strobh. (S. C. Rep.) 548, Wardlaw, J., in- dulges in some reflections on this point worth referring to in this con- nection. ' Every incMent,' says he, 'will, when carefully examined, be found to be the result of combined causes ; to be itself one of various causes, which j)roduces other events. Accident or design may disturb the ordinary action of causes. It is easy to imagine some acts of trivial mis- conduct or slight negligence, which shall do no direct harm, but sets in 143 § 151.] NEGLIGENCE : [book I. § 151. In 1872 it was attempted to push the principle still fur- ther in a case that was ultimately determined by the New York motion some second agent that shall move a third, and so on until the most disastrous consequences shall ensue. The first wrongdoer, unfortu- nate, rather than seriously blaniable, cannot be made answerable for all these consequences.' " It is certain, that in almost every considerable disaster the result of hu- man agency and dereliction of duty, a train of consequences generally en- sue, and so ramify, as more or less to affect the whole community. In- demnity cannot reach all these re- sults, although parties suffer who are innocent of blame. This is one of the vicissitudes of organized society. Every one in it takes the risk of these vicissitudes. Wilfulness itself cannot be reached by the civil arm of the law, for all the consequences of con- sequences, and some sufferers neces- sarily remain without compensation. The case of Scott v. Shepherd, 2 Wm. Blac. R. 893, the case of the squib, is sometimes cited as extending the prin- ciple of the maxim, but it is not so. The doctrine of proximate and remote causes was really not discussed in that case. One threw a squib in a market- place amongst the crowd. It fell on the stall of one who immediately cast it off to prevent it exploding there, and it struck a third person and ex- ploded, putting out his eye. The question was, whether the defendant could be made answerable in the form of action adopted, which was trespass. De Grey, C. J., held, that the first thrower, the defendant, was answer- able, for that in fact the squib did the injury by the first impulse. In this way the action of trespass was sus- tained. It is no authority against the principle suggested. There must be a limit somewhere. Greenl. in vol. 144 2, § 256, touches the question thus : ' The damages to be recovered must be the natural and proximate conse- quence of the act complaifted of.' This is undoubtedly the rule. The difficulty is in distinguishing what is proximate and what is remote. I re- gard the illustration from Parsons already given, although the wrong supposed arises ex contractu, as clear as any that can be suggested. "It is an occurrence undoubtedly frequent, that by the careless use of matches houses are set on fire. One adjoining is fired by the first, a third is by the second, and so on, it might be, for the length of a square or more. It is not in our experience that the first owner is liable to answer for all these consequences, and there is a good reason for it. The second and third houses, in the case supposed, were not burned by the direct action of the match, and who knows how many agencies might have contributed to produce the result. Therefore, it would be illogical to hold the match chargeable as the cause of what it did not do, and might not have done. The text-books, and, I think, the au- thorities agree, that such circum- stances define the word ' remota ' re- moved, and not the immediate cause. This is also Webster's third definition of the word ' remote.' The question which gives force to the objection that the second or third result of the first cause is remote, is put by Par- sons, vol. 2, 180, " Did the cause al- leged produce its effects without an- other cause intervening, or was it made to operate only through or by means of this intervening cause ? ' There might possibly be cases in which the causes of disaster, although seemingly removed from the original BOOK I.] CAUSAL CONNECTION. [§ 151. court of appeals.! The defendant, a railroad company, in time of great drought, negligently dropped from one of its locomotives cause, are still incapable of distinct separation from it, and the rule sug- gested might be inapplicable ; but of these when they occur. The maxim, however, is not to be controlled by time or distance, but by the succession of events " To hold that the act of negligence which destroyed the warehouse de- stroyed the hotel, is to disregard the order of sequences entirely, and would hold good if a row of buildings a mile long had been destroyed. The cause of destruction of the last, in that case, would be no more remote, within the meaning of the maxim, than that of the first, and yet how many con- curring elements of destruction there might be in all of these houses, and no doubt would be, no one can tell. So to hold, would confound all legiti- mate ideas of cause and effect, and really expunge from the law the maxim quoted, that teaches accounta- bility for the natural and necessary consequences of a wrongful act, and which should, in reason, be only such that the wrong-doer may be presumed to have known would flow from his act. According to the principle as- serted, a spark from a steamboat on the Delaware might occasion the destruction of a whole scjuare, al- though it touched but a single sepa- rate structure. No one would be likely to have the least idea of such account- ability, so as to govern and control his acts accordingly. A railroad ter- minating in a city might, by the slightest omission on the part of one of its numerous servants, be made to account for squares burned, the con- sequence of a spark communicating to a single building. Were this the un- derstanding of the extent of liability under such circumstances, it seems to me that there might be more desirable objects to invest capital in than in the stock of such a railroad. But it never has been so understood or ad- judged. Lowrie, J., in Morrison v. Davis & Co. 8 Harris, 171, illustrates the argument against such liability most strikingly by reference to a well known fact. In the case he was treat- ing, a horse in a canal-boat team was lame, in consequence of which the boat was behind time in reaching the Juniata River, and in consequence of that was overtaken by a flood in the river, which destroyed the boat with its freight. The carrier, the owner of the boat, was charged with being negligent in using a lame horse, the occasion of the delay. In treating of this as only the remote cause of the disaster, the learned judge said : ' There are often very small faults which are the occasion of the most serious and distressing consetjucnces. Thus, a momentary act of carelessness set fire to a little straw, and that set fire to a house, and by an extraordi- nary concurrence of very dry weather and high winds, with this little fault, one third of a city (Pittsburg) was destroyed ; would it be right that this small act of carelessness should be charged with the whole value of the property consumed ? ' The answer would and ought to be, No ; it was l)ut the remote cause of it. Innumerable occasions must have occurred in this Conunonwealth for asserting liability to the extent and upon the principle claimed here, yet we have not a soli- tary precedent of the kind in our books. This is worth something, as 1 Webb V. Rome, &c. R. R. Co. 49 N. Y. 421 ; 5. C. 3 Lans. 453. 10 145 § 151.] SUCCESSIVE FIRES: [book I. live coals on a track, which coals set fire to a tie on the track. From this tie the fire was communicated to an old tie at the side proof against the alleged principle. It was Littleton's maxim, ' that what never was, never ought to be.* 1 Vern. 385. " The question in hand has not been adjudicated in this State, and but seldom discussed in any of the other states; yet we have a case de- cided in the court of appeals of the State of New York, in 1866, which is directly in point in support of the doc- trine we have been endeavoring to advance above. It is the case of Ryan r. The New York Central Rail- road Co. (8 Tiffany) 35 N. Y. 210. The facts in that case briefly were, that the defendant, by the carelessness of its servants, or through the insuffi- cient condition of one of its locomo- tive engines, set fire to its own wood- shed with a large quantity of wood therein. The plaintifTs house, sit- uated some one hundred and thirty feet from the shed, took fire from the heat and sparks of the burning shed and wood, and was entirely consumed. A number of other houses and build- ings were destroyed by the spreading of the fire. The plaintiff brought suit against the company for his loss. On the presentation of these facts at the trial, the circuit judge nonsuited the plaintiff, and at the general term of the supreme court of the Fifth Dis- trict the judgment was affirmed. The case was then removed to the court of appeals, where the judgment was unanimously affirmed, in an elaborate and exhaustive opinion by Hunt, J. Every position taken by the counsel for the defendant in error here was taken there, and examined and fully answered in the opinion. All the English and American cases supposed to have any bearing on the point in dispute there on the same question we 146 have here, are noticed by him, and the doctrine clearly deduced, that the railroad company was not answerable to the plaintiff for the loss of his house being burned by fire communi- cated by the burning shed. That case is not distinguishable in principle, or in the manner of destruction, from this. It is on all fours with this case. " But it seems to have been thought that The Insurance Co. v. Tweed, 7 Wal. U. S. Rep. 45, conflicts with the above case. I do not think it does, when understood. It was an action on a policy of insurance against fire, in which there was an exception of several matters, viz., invasion, insur- rection, military and usurped power, explosion, earthquakes, &c. An ex- plosion took place in a warehouse on the opposite side of the street from the insured property, and scattered fire and burning fragments upon the insured property and destroyed it. The decision of the supreme court was, that the loss was within the ex- ception of loss by fire occasioned by explosion. To me it seems that it would have been rather more rational to have held that the destruction was by fire, jjer se. But the court inter- preted the terms of the contract of the parties in this way. We must re- member that there may be a differ- ence between interpreting the obliga- tion of a contract, and defining liability under the law of social duty. Certain it is, the laws are not the same. One does not necessarily rule the other. I may say further, that there is no evidence, in the opinion of Mr. Jus- tice Miller, that he had specially in view the same question, so ably dis- cussed by Mr. Justice Hunt, or if be had, that his investigations extended so far as did those of the last named BOOK I.] CAUSAL CONNECTION. [§ 151. of the track, and from thence to a mass of dry weeds and grass which had been there permitted by the defendant to accumulate. From this material, which had become very inflammable, the fire was communicated directly to the plaintiff's land, burning the trees and soil, which was the damage complained of. It was argued for the defendant that the damage was too remote, and Penn. R. R. v. Kerr, and Ryan v. N. Y. C. R. R. were relied on. But Folger, J., in giving the opinion of the court of appeals, held these cases to be inapplicable. " In Ryan's case," he said, " the opinion of the court was that the action could not be sus- tained, for the reason that the damage incurred by the plaintiff judge. He does not even refer to the useful further to refer to the authori- New Yoi'k case at all. ties, for it will be impossible to recon- " The (juestion here involved does cile some of them with the views I not seem to have been definitely de- termined in England ; why, I am at a loss to know. There have been de- cisions, it is true, imposing liability against the reasons we have expressed above, but in none of them is the question of proximate and remote cause of the injury discussed at all. Such is the case in Piggot v. The Eastern Counties Railroad Co. 54 E. C. L. R. 229, cited by the counsel for the defendant in error; and such is the recent case of Smith v. The have taken.' I entirely agree, that if they shed any light, it is too uncertain and dim to be followed with safety; Avhile on the other hand, the concur- rence of principle, with a just measure of responsibility, we think, is best sub- served by the rule we suggest. With every desire to compensate for loss when the loser is not to blame, we know this cannot always be, without transcending the boundaries of reason, and, of course, of law. This we can- not do, and we fear we would be London & Southwestern Railway Co. doing it, if we affirmed the judgment Law Rep. March, 1870, p. 98. In in this case. The limit of responsi- this case Bovill, C. J., and Keating, bility must lie somewhere, and we J., affii-med the recovery. Brett, J., dissented. Both these cases were in the court of common pleas. I find no review of the question in the ex- chequer chamber. I regard these cases as passing over the question that was decided in the court of ap- peals in New York, and which is be- fore us now, sub silentio. Hunt, J., expresses, to some extent, my expe- rience, when he says, ' I have exam- ined the authorities cited from the Year Books, and have not overlooked the J^nglish statutes on the sul)ject, on the English decisions, extending back for many years. It will not be think we find it in the principle stated. If not found there, it exists nowhere. We have not been referred to any case, in any of the state courts, excepting those noticed, and I have not myself discovered any, which, in the least, militates against tlie fore- going views ; we are therefore con- strained to follow the result of our conclusions, and reverse the jtiilgnient in this case. At present we will not order a venire de novo, but if the plaintirt' ludow antl defendant in t-rror desire, we will onK-r it on the gnunuls shown for it, if made in a reasonable time." 147 § 152.] SUCCESSIVE FIRES : [BOOK I. was not the immediate but the remote remit of the neyligence of the defendant The facts in the Ryan case are familiar, but they can be repeated briefly. The defendant by its negli- gence in not keeping in sufficient good order its engine, or in not properly managing it, set fire to its own wood-shed, and the con- tents thereof. Tlie fire froin this was com,munieated through an inten'enifif/ vacant space of mie hundred and thirty feet, to the buildings of the plaintiff standing on his premises, which were not in contiguity with those of the defendant, until it was destroyed ; and the pith of the decision was that this was a residt ivhich ivas not necessarily to he anticipated from the firing of the ivood-shed and its contents ; that it ivas not an ordinary^ natural, and usual residt from such a cause ; but one dependent upon the degree of heat, the state of the atmosphere, the condition and materials of the adjoining structures, • and the direction of the wind, which are said to be circumstances accidental and varying. The principle applied was the converse of that enforced in Vanderburgh v. Truax, 4 Denio, 464, which was that the consequence complained of ivas the natural and direct result of the act of the defeiidant.'''' But in the present case, the fire negligently kindled by the defend- ant communicated directly to the plaintiff's land, in a way that was natural and direct ; and hence the defendant was held liable.^ § 152. In Massachusetts, where there is a special statute which will be presently noticed, the question was discussed in 1868 in a case where the evidence was that the fire which destroyed the plaintiff's property proceeded from the defendant's locomotive, and came in a direct line and without any break, to the plaintiff's property. But in reaching the plaintitt"'s land it went across the land of three or four different parties which lay between the plaintiff's land and the railroad track, and the distance to the plaintiff's land was about half a mile. It was fed on its way by grass, stubble, and woodland.^ " The liability of the railroad," said Chapman, J., " is not at common law, nor dependent on the defendant's want of care ; hut is under a statute very general in its terms, making a railroad corporation responsible in damages to any person whose huilding or other property may he injured hy 1 To the same effect is Vaughan v. 2 Perley i;. East. R. R. 98 Mass. Taff R. R. 3 H. & N. 742 ; McGraw 414. V. Stone, 53 Penn. St. 441, and cases hereafter cited. 148 BOOK I.] CAUSAL CONNECTION. [§ 153, fire communicated hy its locomotive engines, and giving the corpora- tion an insurable ititerest in the property upo7i its rovte, for wliicli it may be held responsible, with authority to procure insurance thereon in its own behalf The terms of the statute do not restrict the liability so as to exclude any cases where the fire is communicated from the engine, nor limit the insurable interest to any specific distance from the track." It is true that the opinion goes on to cite Ryan t?. N. Y. Cent. R. R., and to express a dis- sent from the result there reached on common law grounds ; but the case is made to rest mainly on the language of the local statute. Prior decisions of the same court,^ can be sustained at common law, on the ground that the burning of the plaintiff's property was caused by an irresistible sheet of flame kindled di- rectly by the defendant's engine. § 153. In sharper opposition, however, to the result in Pennsyl- vania and New York is a decision in Illinois,^ in a case where a locomotive, when passing through a village, set fire to a warehouse and a lumber yard. The weather " was very dry and the wind blowing freely to the south." From the warehouse first ig- nited the flames " speedily set on fire the building of plaintiffs, situated about two hundred feet from the warehouse." The de- fendant demurred to the evidence, and the court trying the case sustained the demurrer. This was reversed by the supreme court, and rightfully, for there was no evidence that could lead to the presumption that the fire in the intermediate buildings could by due diligence have been extinguished, or that by due diligence the plaintiffs' building could have been protected from the fire ; and the demurrer, by admitting the truth of the plaintiffs' evi- dence with all its intendments, admitted that the fire in tlie plain- tiffs' building was naturally and in unbroken sequence communi- cated from the defendant's engine. The court, however (Law- rence, C. J.), went beyond this necessary consequence of the pleadings, and advanced positions which, if accurate, would make the first starter of a fire liable for all other fires which might be kindled from the flames he thus originated. Yet if so, why is he to be considered the primary cause ? For, if we must go back through all intermediate negligences to the first act of negligence, 1 Hart V. W, R. R. 13 Mete. 91); ^ p^ut v. ToUhIo, P. & W. R. R. and IngersoU p. S. & P. R. R. 8 Al- 59 IlL 351 ; 1 Reilfu-ld K. R. Cases, len, 438. 350, 149 § 154.] SUCCESSIVE FIRES : [BOOK I. there is no reason for stopping with the railway company. Either the road was anterior or posterior to the buildings which were thus ignited. If anterior, then, in view of the contingencies of railroad fires, it was negligence to erect such buildings under the very eaves of its smoke-pipes. If posterior, then it was negligence in the legislatui'e to authorize the road to run its track close to buildings so combustible ; and it was negligence in the village authorities not to require these buildings to be removed. Nor, if we trace the train of causation, as thus defined, at its other end, can we see, on the reasoning of the court, where this liability can be stopped. " A natural consequence, which any reasonable per- son could have anticipated," is the test given by Chief Justice Lawrence. But " anticipatedness," as we have already seen,^ is not an adequate test ; for it is reasonable for me to anticipate that other people will be negligent, yet this does not make me liable for the negligences I thus anticipate ; and " naturalness, without the limitations heretofore given,^ is by itself insufiicient, in cases where intervening negligences are set up. § 154. A distinct state of facts is exhibited in another inter- esting case, where the same question was mooted before jNIiller and Dillon, J J. at a circuit court of the United States in May terra, 1874.^ The defendant's steamboat negligently set fire, by means of a smoke-pipe without a spark-arrester, to an elevator owned hy the defendant, from which the fire passed to the plain- tiff's saw-mill and lumber, distant 388 feet from the elevator. "• There was at the time an unusually high wind blowing from the elevator in the direction of the plaintiff's lumber and mill. The evidence tended to show that sparks and burning brands were carried directly from the elevator to the lumber and mill ; and that the trees upon the bluffs, 600 feet distant from the ele- vator, were scorched and killed by the flames and heat from the elevator." Here, therefore, there was no question as to the inter- mediate negligence of a third party, or of contributory negligence by the plaintiff, while the defendant's negligence was indisputa- ble. The intermediate building (the elevator) belonged to the defendant ; so that if there was any negligence in not stopping the flames at the elevator, that negligence was the defendant's. The plaintiff, in such a fierce blast of fire as that which the evi- 1 Supra, § 16, 77. s Kellogg v. Milwaukee & St. P. R. 2 See supra, § 73. R., Central Law J. for June 4, 1874. 150 BOOK I.] CAUSAL CONNECTION. [§ 155. dence depicted, could not have saved a structure offering so ex- panded and combustible a surface as do a saw-mill and lumber yard. The distance of the plaintiff's property to the steamboat depot was not such, supposing the plaintiff to have been the second comer, to charge him in any sense with imprudence in se- lecting his site. The defendant was clearly guilty of negligence in not having spark-arresters to his smoke-pipe. The case was therefore one in which the plaintiff was entitled to recovery, and so found the jury, after a charge from Miller, J., in which this particular question was left to the jury as follows : " Now in the case before us, it is said that while the burning of the elevator was the direct consequence of the sparks from The Jennie Broivn^ the burning of the mill and lumber was the remote consequence of the negligence of the defendant. I am not prepared to say this. I do not believe it is the duty of the court to take that question away from the jury, and I leave it with yoa, as was done at the former trial, to determine whether under all the circumstances of the case, — with the wind blowing, the inflammable character of the elevator, the combustible material of which it was composed ; and on the other hand, the distance between the elevator and the mill and lumber, and from all the evidence and circumstances be- fore you, — whether the burning of the mill and lumber by the fire from the elevator was a consequence usually and naturally to be expected ; whether the burning of the mill and lumber was the result naturally and reasonably to be exj^ectedfro^n the burning of the elevator, and whether the burni^ig of the elevator was the re- sult of the sparks froyn Tlie Jennie Broivn." In this case, also, the question of the interposition either of the plaintiff's negli- gence, or of that of a third person, did not arise. Had such an interposition been claimed, then an issue would have been pre- sented which would have made it proper for the jury to have been told that the plaintiff could not recover if his negligence was the proximate cause of the disaster, or if tlie fire was com- municated to the plaintiff's property by means of a iirc in the property of a third person, which intermediate fire could have been arrested had there been duo diligence either on the part of such third person, or of the public authorities assuming the duty of the local extinguishing of fires. § 155. To show the necessity of instructions such as those just stated, a single illustration, in addition to those ah'eady pre- 151 § 155.] SUCCESSIVE FIRES. [BOOK I. sentccl,^ may be here given. A., B., C, D., E., and F. are standing five feet apart. A. negligently jostles B., knocking him down, and B., instead of recovering himself, negligently falls on C ; and C. negligently falls on D., and D., in the same negligent way, falls on E., and E. on F. A., let us assume, is a rich man, and F. sues A., naturally preferring to select him, as one who is able to pay, as the party to redress the hurt. But why, if we are to go thus back, stop with A. ? Some antecedent negligence of some other person might be found which put A. in the position which occasioned him to jostle B., and hence, if we adopt this theory of indefinite vica- rious liability, we are reduced to the alternative either of losing ourselves in the remote past in the search for the original negli- gence, or of perpetrating the injustice of selecting out of the long train of antecedents the one against whom a verdict can be most easily collected. The only relief we have from this ab- surdity is in holding that causal connection is broken by the intermediate negligence of a responsible independent agent. Nor is the principle changed if we substitute for B. a person, B. a house, supposing that B. the house is owned by persons whose duty it is to guard against fire. If there is negligence of any kind imputable to the owner of house B., or to those bound in any way to preserve house B. from catching fire, then the causal connection is broken. To hold that in case of such intermediate negligence the party guilty of such negligence is to be skipped, and satisfaction to be taken out of some prior antecedent who is a capitalist, would be to destroy non-capitalist as well as capital- ist. The non-capitalist, leaving by the side of a railroad track a heap of combustible stuff, would indeed cease to be responsible to his neighbors on the other side for the flames which without his negligence would not have spread. But this irresponsibility, while making it a matter of indifference to him how negligent he may be in his own duties, gives him, with an outlaw's immu- nities, an outlaw's beggary. For he cannot honestly live unless honestly employed ; and he cannot be employed without an em- ployer ; and no employer will venture into an industry of which it is one of the conditions that capital is to be made liable for all damage, and the non-capitalist to be excused from the exercise of all care. 1 Supra, §§ 137-141. 152 CHAPTER IV. LIABILITY OF MASTER FOR SERVANT. Limitations of Roman Law, § 156. In Anglo-American Law master is liable for servant's negligence in course of employ- ment, § 157. Need be no specific directions, § 160. Meaning of "course," "scope," and " range " of employment, § 162. Where servant acts in disobedience to mas- ter, § 171. Service need not be permanent, § 172. Nor servant in master's general employ, §173. But no liability for work performed prior to acceptance, § 174. Appointment need not spring directly from master, § 175. But master must have power of appointment or supervision, § 176. Relationship must exist as to particular act, §177. Liability for direct agency, § 178. Liability exists for gratuitous servants, §179. Master cannot by special contract transfer liability to servant, § 180. But no liability when work is done by inde- pendent contractor, § 181. This applies to all departments of agency, § 182. But employer cannot l)e thus relieved from liabilit}' for work he is bound to do per- sonally, § 183. Nor from liability for what is in the scope of his directions, § 184. Nor can a principal so evade liability for a nuisance, § 185. Same rule applies to contractor's liability to emplover for sub-contractor's negligence, § 187.' Distinctive views as to municipal corpora- tions, § 190. Liable for servant's negligence in executing its orders, § 190. But not for collateral negligence, §191. Nor when negligence does not affect work directed, § 192. Not liable for negligence of contract- or, § 193. Nor for matters not within its legal province, § 195. Distinctive views as to private corporations, §196. Distinction as to official subordinates, § 197. § 156. Limitations of Roman laiv. — The Roman law, in its treatment of vicarious liability, was affected by several consider- ations which do not apply to ourselves. In the first place, the office of servant, in the sense in which we now hold it, was then occupied exclusively by the slave ; and consequently it was to the slave that attached the liabilities to which we subject the ser- vant. Then, again, the Roman idea of the freeman liad asso- ciated with it a haughty independence which was inconsistent with such a subordination of one freeman to anothi-r as i\\o doc- trine of respondeat superior assumes. Yet, as a third (pialiiica- tion, it was lield that tliis notion of independence did not a]>ply to the fiUuHfamilias^ but that for the acts of tlie fiUunfamiUas the paterfamilias was under certain circumstances liable. 153 § 157.] MASTER : [book I. Keeping these peculiarities in mind, we can understand how, on the subject of vicarious liability, the Roman law should adopt the following positions : 1. The master was liable for the acts of the slave ; but this liability, unless the slave's acts were in pur- suance of the master's orders, was not extended further than to make the master bound to defend the slave, who was personally liable for the harm done. The master could by the old law re- lieve himself from personal liability by surrendering the slave, on the principle, Noxa caput sequitur. Subsequently this was changed, in favor of the master, as was alleged, by putting the master in the slave's place so far as to make the master respon- sible for the slave's delicts.^ 2. The paterfamilias, by the old law, was in like manner liable, on the principle of family subjection, to a noxal action for the misconduct of the Jiliusfamilias. When the son was emancipated, however, this vicarious liability of the father for the son ceased, and the filiusfa7nilias became personally liable for his own delicts. But before emancipation, the father's lia- bility was enforced by the actio yioxalis in patrem ex noxa filii. The basis of the action was the theory of the subjection of the family to the paterfamilias. The father could not take the benefits of his supremacy without its burdens ; if he was to re- ceive the profits, he must be chargeable with the loss. The same reasoning made the husband liable for the wife's delicts which occurred during her subjection to him. 3. Where a person undertook by contract to perform a partic- ular service, which required the cooperation of employees, he was liable for such negligence of such employees as occurred in the discharge of their duties. § 157. By Anglo-American law the master is liable for the ser- vants negligent conduct in the course of his employment. — Our own law, rejecting the idea of absolute subordination which the Roman law assigns to the relation of master and servant, makes the mas- ter generally liable for the negligent conduct of the servant within the range of the latter's employment, recognizing, however, the servant's liberty to act out of such range, and relieving the master from liability when the servant thus acts not on his master's ac- count but his own. That the master is liable for the servant's negligences in the range of the latter's employment is an element- * See Wvss' Haflung fiir fremde Culpa. Zurich, 1867. 154 BOOK I.] LIABILITY FOR SERVANT. [§ 159. ary principle upon which the whole of this branch of law rests.^ " The liability of any one, other than the party actually guilty of any wrongful act, proceeds on the maxim, quifacit per alium facit per se. The party employing has the selection of the party em- ployed, and it is reasonable that he who has made choice of an unskilful or careless person to execute his orders, should be re- sponsible for any injury resulting from the want of skill, or want of care, of the person employed ; but neither the principle of the rule nor the rule itself can apply to a case where the party sought to be charged does not stand in the character of employer to the party by whose negligent acts the injury has been occasioned." ^ So by Coleridge, J.,^ it is said : " The maxims qui facit per alium facit per se, and respondeat superior, are unquestionable ; but where they apply, the wrongful act is properly charged to be the act of him who has procured it to be done ; he is sued as a principal trespasser, and the damage, if proved, flows directly and immediately from his act, though it was the hand of another — and he a free agent — that was employed." § 158. Thus, " if the master is himself driving his carriage, and from want of skill causes injury to a passer-by, he is of course responsible for that want of skill. If, instead of driving the car- riage with his own hands, he employs his servant to drive it, the servant is but an instrument set in motion by the master. It was the master's will that the servant should drive, and whatever the servant does in order to give effect to his master's will may be treated by others as the act of the master : qui facit per alium facit per se." ^ § 159. So a railroad corporation is to be regarded as construc- 1 Laugher v. Pointer, 5 B. & C. W. R. R. 4 Exch. 255; So Laugher v. 547; Ramsden v. Best. & A. R. R. Pointer, 5 B. & C. 547 ; Quarmanv. 104 Mass. 117; Wilton v. Middlesex Bennett, 6 M. & W. 499; Butler v. R. R. 107 Mass. 108; Johnson v. Hunter, 7 H. & N. 826; Overton Bruner, 61 Penn. St. 58; Allison v. v. Freeman, 11 C. B. 873; Peaehy R. R. Co. 64 N. C. 382; Garretson v. v. Rowland, 13 C. B. 187; Sadler v. Duenckel, 5 Mo. 104 ; Smith v. Web- Henloeh, 4 E. & B. 570 ; Cutbberton ster, 23 Mich. 298; Piekens v. Dicok- v. Parsons, 12 C. B. 304 ; Gayford i;. er, 21 Oliio St. 212; Pittsb., All. & M. Nitholls, 9 Exeh. 702 ; Grote v. Ches- R. R. V. Donahue, 70 Pcnn. St. 119; ter & IL R. R. 2 E.xeh. 251. Bagley c. Manch. &c. R. R., L. R. 6 » Lmnley v. Gye, 2 E. & B. 216. C. B. 415; Oliver v. N. Pac. Trans. •* Judgm. Ilut.hinson r. York, New- Co. 3 Oregon, 184. castle & Berwiek R. C. 5 E.\ch. 350. y^ Rolfe,''B., in Reedie v. L. & N. 155 § 160.] MASTER : [book I. tively present in all acts performed by its general agents within the range of their ordinary employments. ^ § 160. Need he no specific directions. — It is not necessary that there should be specific directions as to the particular act. It is enough if the general relation of master and servant, as ,to such act, exists.2 ^ Louisville, &c. R. R. v. Collins, 2 Duvall, 114; Pittsburor, &c. R. R. v. Ruby, 38 Ind. 312 ; infra, § 199. " In general," says Lord Cran- ■worth (Bai'tonshill Coal Co. v. Reid, 3 Macq. Sc. App. Cas. 266), " it is sufficient for this purpose (to charge the master) to show that the person whose neglect caused the injury was, at the time when it was occasioned, acting not on his own account but in the course of his employment as a ser- vant in the business of a master, and that the damage resulted from the ser- vant so employed not having con- ducted his master's business with due care. In such a case, the maxim, respondeat superior prevails, and the master is responsible. " Thus, if a servant driving his mas- ter's carriage along the highway care- lessly runs over a by-stander, or if a gamekeeper employed to kill game carelessly fires at a hare, so as to shoot a person passing on the ground, or if a workman employed by a builder in building a house negligently throws a stone or brick from a scaffold, and so hurts a passer-by : in all these cases (and instances might be multi- plied indefinitely), the person injured has a right to treat the wrongful or careless act as the act of the master. " Quifacit per alium facit per se. If the master himself had driven his car- riage improperly, or fired carelessly, or negligently thrown the stone or brick, he would have been directly responsible; and the law does not per- mit him to escape liability because 156 the act complained of was not done with his own hand. He is consid- ered as bound to guarantee third per- sons against all hurt arising from the carelessness of himself, or of those acting under his orders in the course of his business. Third persons can- not, or at all events may not, know whether the particular injury com- plained of was the act of the master or the act of his servant. A person sustaining injury in any of the modes I have suggested has a right to say, I was no party to your carriage being driven along the road, to your shoot- ing near the public highway, or to your being engaged in building a house. If you chose to do, or cause to be done, any of these acts, it is to you, and not to your servants, I must look for redress, if mischief happens to me as their consequence. A large portion of the ordinary acts of life are attended with some risk to third persons, and no one has a right to involve others in risks without their consent. This consideration is alone sufficient to justify the wisdom of the rule, which makes the person by whom or by whose orders these risks are incurred responsible to third persons for any ill consequences resulting from due want of skill or caution." 2 Barwick v. Eng. Joint Stock Bank, L. R. 2 Exch. 265 ; Tuberville V. Stamp, Raym. 266 ; Seymour v. Greenwood, 7 H. & N. 355 ; Patten v. Rea, 2 C. B. (N. S.) 606 ; Mitchell v. Crasweller, 13 C. B. 237 ; Storey V. Ashton, L. R. 4 Q. B. 476. BOOK I.] LIABILITY FOR SERVANT. [§ 163. § 161. Tims it has been judicially declared in England,^ that "the general rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express com- mand or privity of the master be proved. That principle is acted upon every day in running-down cases. It has been applied also to direct trespass to goods, as in the case of holding the owners of ships liable for the act of masters abroad improperly selling the cargo." ^ It applies, also, to actions of false imprisonment, in cases where officers of railway companies improperly or negli- gently expel, or confine, persons who are supposed to come within terms of the by-laws.^ " It is true," as has been said by the learned judge last cited, "that the master has not authorized the particular act, but he has put the agent in his place to do that class of acts ; and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of the master to place him in." So, also, as is said by Maule, J.,^ the master "is liable, even though the servant in the performance of his duty is guilty of a deviation or a failure to perform it in the strictest and most con- venient manner. But where the servant (as will presently be seen more fully), instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of the servant in doing it." § 162. " C'owrse," " sco/>e," or '-'■ range'" of employment. — It has been already said that to make the master liable for the ser- vant's negligence, this negligence must be in the course, or as it is sometimes called " scope," or " range," of the hitter's employ- ment. § 163. Illustrations of what mai/ be considered as " course^'^ " seope^"" or " ranged — The master of a ship,^ in making a deviation in order to perform salvage services, is held as acting within the general scope of his authority, and therefore the own- ers are liable for damage caused by a collision occurring through the master's negligence while so deviating from his track. 1 Berwick v. Eng. Joint Stock E. & E. G72 ; Ilaiiiiltnii r. 'I'hinl Av. Bank, L. R. 2 Exch. 2(55. 11. R. 53 N. Y. To. 2 Ewbank v. Nuttinix, 7 C. B. 797. * 13 C. B. 24 7. 8 Goff V. Great Northern R. C. 3 ^ The Thetis, L. R. 2 A.h... at;.";. 1,3 § 164.] MASTER : [I500K I. For the driver of a street car to invite and permit children to ride on its platform without pay, is an act sufficiently within the range of the driver's employment to make the road liable for injuries incurred by one of the children through the driver's negligence. 1 Yet the principle of the last cited cases cai^not be stretched so as to imply authority on the part of the engineer of a locomotive to invite a child on the machinery. Thus in a Penn- sylvania case,2 the evidence was that of a train of cars belonging to the defendants coming into a city, the engine, tender, and one car were detached from the remainder, and run under the charge of the fireman in the engineer's place, to a water-station belong- ing to the defendants. At the station, the fireman asked a boy ten years old, standing there, to turn on the water ; whilst he was climbing on the tender to put in the hose, the remainder of the train came down with their ordinary force, and struck the car attached to the engine. The jar threw the boy under the wheel and he was killed. In an action by the parents for his death, it was ruled that it not being in the scope of the engi- neer's or fireman's employment to ask any one to come on the ens:me, the defendants were not liable.^ § 164. So persons employed to repair a particular road have been held responsible for the negligence of their servants in leav- 1 Wilton V. Middlesex R. R. 107 fireman which can embrace a request Mass. 169. to perform the fireman's duty. Even 2 Flower i'. Penn. R. R. Co. 69 Pa. an adult to whom no injury would be gt, 210. likely to ensue could not justify under 8 In the last cited case this point is the fireman's request. Much less can thus satisfactorily discussed by Ag- there be any presumption of authority new, J. : . . . . " The business of to invite a boy of tender years to per- an eno-ineer requires skill and con- form a service, which required him to stant attention and watchfulness ; and clamber up the side of the engine or that of a fireman requires some skill tender. It was a wrong on the part of and much attention. They are in the fireman to ask such a youth to do charo-e of a machine of vast power, it. Whether the boy could be treated and laro-e capacity for mischief. The . as a mere trespasser is scarcely the responsibility resting on them, and es- question. His youth might possibly pecially on the engineer, is great, and excuse concurrent negligence where neither should be permitted to dele- there is clear negligence on the crate the performance of his duties to part of the company. Such were the others. In doing so without permis- cases of Lynch v, Nurdin, 1 A. & E. sion, they transcend their powers. N. S. 29 (41 E. C. L. 422) ; Ranch v. There cannot, therefore, be any gen- Loyd & Hill, 7 Casey, 358." eral authority in the engineer and 158 BOOK I.] LIABILITY FOR SERVANT. [§ 168. ing a heap of stones on the highway against which the plaintiff, on a dark night, drove, upsetting his cart, and being thereby damaged.^ § 165. A stevedore employed to ship iron rails had a foreman whose duty it was (assisted by laborers), to carry the rails from the quay to the ship after the carman had brought them to the quay and unloaded them there. The carman not unloading the rails to the foreman's satisfaction, the latter got into the cart and threw out some of them so negligently that one fell upon and injured the plaintiff who was passing by. It was held in the English common pleas (per Grove and Denman, JJ., Brett, J. dissenting), that there was evidence for the jury that the foreman was acting within the course of his employment, so as to render the stevedore responsible for his acts.^ § 166. So where the defendant, a contractor under a district board, was engaged in constructing a sewer, and employed men with horses and carts, and the men so employed were allowed an hour for dinner, but were not permitted to go home to dine or to leave their horses and carts ; but one of the men went home about a quarter of a mile out of the direct line of his work to his din- ner, and left his horse unattended in the street before his door. The horse ran away and damaged certain railings belonging to the plaintiff ; it was held that it was properly left to the jury to say whether the driver was acting within the scope t>f his employ- ment, and that they were justified in finding that he was.^ § 167. The plaintiff, a passenger on another road, on walking across a platform occupied by the defendants in company with other railroad companies, was injured by the negligence of a por- ter, a servant of the defendants, in dropping from a truck a portmanteau, which fell on the plaintiff. The defendants were held by the court of queen's bench, in 1870, liable for the porter's negligence.* § 168. But when the servant departs from the performance of his master's business, and wrongfully, though with tlie master's materials unlawfully taken, undertakes to do something on his ^ Foreman v. Mayor of Canterbur)-, ' AVliatnian r. Pearson, L. R. 3 C. L. R. 6 Q. B. 214. r. 4 22. 2 Burns v. Poulson, L. 11. 8 C. B. •• Ti-l)hiitt r. Bristol & Kx. R. R. 363. Co., L. U. 6 Q. B. 73. 159 § 109.] MASTER : [book I. own account, the master ceases to be responsible for the servant's negligence.^ Thus in a leading case, the master has been held not to be lia- ble for the negligence of a servant who burned a house down in trying to cleanse a chimney, it being shown that the servant's duty was not to cleanse the chimney but only to light the fire.^ So where a coachman, after having used his master's horse and carriage in going upon an errand for his master, instead of taking them to the stable, used them in going upon an errand of his own, without his master's knowledge or consent, and, while doing so, he negligently ran into and injured the j)laintiff's horse ; it was ruled that his master was not liable.'^ § 169. So in another case,^ it appeared that the defendant bought some boards from the plaintiff, a timber merchant, and at the defendant's request the plaintiff gave him permission to use his shed for the purpose of making a sign-board. The defendant employed D., a carpenter, to make the sign-board at a fixed price, and D. used the shed for that purpose, with the plaintift"'s knowl- edge. D., w^liile so working, lighted a pipe from a match with a shaving, which he accidentally dropped, and the shed was burnt down ; and upon an action being brought against the defendant, it was held, that he was not liable ; for that the act of D. was not a negligent act within the scope of his authority. In the course of giving the judgment of the court, Martin, B., said: " Now, we are not aware of any authority which shows that any contract exists between a person so occupying a shed under a license beyond that which the law would itself impose in respect of negligence ; and we think, therefore, that the only duty which was imposed upon the defendant was, that there should not be negligence in the use of the shed ; and if, in the course of the em- ployment, Davis, the carpenter, had been guilty of any negligence which could be at all applicable to the employment in which he was engaged, it may be that the defendant would be responsible ; but we think, upon the best consideration that we can give to the 1 Mitchell V. Crassweller, 13 C. B. 2 McKenzie v. McLeod, 10 Bing. 237; Sleath v. Wilson, 9 C. & P. 385. 607; Peachey v. Rowland, 13 C. B. 3 Sheridan v. Charlick, 4 Daly, 182; Gray r. Pullen, 5 B. & S. 970; 338. Sadler v. Henlock, 4 E. & B. 570; * Williams v. Jones, 3 Hur. & C. Williams v. Jones, 3 H. & C. 602. 256 ; 33 L. T. Ex. 297. 160 BOOK I.] LIABILITY FOR SERVANT. [§ 170. case, it is impossible to hold, that a man who employs another for a sum of money to do a job is to be responsible because that man does a very natural and common act, and lights a pipe, which the jury have found to be a negligent act ; it is impossible to say that that casts any liability upon the employer. If the facts were correctly found by the verdict, Davis himself would be liable and responsible for this negligence, for he would have acted negli- gently when on the premises of another person, towards whom he was, at all events, bound to use reasonable care for the purpose of protecting the premises from injury, and therefore the action would lie against him." § 170. So, where the defendant, a wine merchant, sent his car- man and clerk with a horse and cart to deliver some wine, and bring back some empty bottles ; on their return, when about a quarter of a mile from the defendant's offices, the carman, instead of performing his duty, and driving to the defendant's offices, de- positing the bottles, and taking the horse and cart to stables in the neighborhood, was induced by the clerk (it being after busi- ness hours) to drive in quite another direction on business of the clerk's, and while they were thus driving the plaintiff was run over, owing to the negligence of the carman ; it was ruled that the defendant was not liable ; for that the carman was not doing the act, in doing which he had been guilty of negligence, in the course of his employment as servant.^ ^ Story V. Ashton, L. R. 4 Q. B. 476. the course of his employment as ser- " I am of opinion," said Cockburn, C. J., " that the rule must be discharged. I think the judgments of Maule and Cressweli, JJ., in Mitchell v, Crass- weller,^ express the true view of the law, and the view which we ought to abide by ; and that we cannot adopt the view of Erskine, J., in Sleath i'. Wilson,'' that it is because the master has intrusted the servant with the control of the horse and cart that the master is responsible. The true rule is, that the master is only responsible vant. I am very far from saying, if the servant when going on his mas- ter's business took a somewhat longer road, that owing to this deviation he would cease to be in the employment of the master, so as to divest the lat- ter of all liability; in such cases it is a question of degree as to how far the deviation could be considered a separate journey. Such a considera- tion is not applicable to the present case, because here the carman started on an entirely new and independent so long as the servant can be said to journey which had nothing at all to be doing the act, in the doing of do with his employment. It is true which he is guilty of negligence, in that in Mitchell v. Crasswellcr « the 1 13 C. B. 237 ; 22 L. J. C. P. 100. a 9 C. & P. 607, 612. 11 « 13 C. B. 237; 22 L. J. C. P. 100. 161 § 171.] NEGLIGENCE [book I. § 171. It makes no difference that the negligence was in di- rect dlsohedience to master s private instructions. — Where the servant is acting within the scope of his employment, the master is responsible, even for an act " the very reverse of that which the servant was actually directed to do." ^ Thus, in an English case,2 the evidence was that a servant, employed by the defend- ants to drive their omnibus, drew his omnibus across the road in front of a rival omnibus of the plaintiff to block the latter, and in so doing collided with and injured the plaintiff's omnibus. It was proved that the defendants' servant had express directions from his masters not to obstruct other omnibuses ; and he proved that he did it on purpose, and to serve the plaintiff's driver as the latter had served him. On the trial of the case the judge (Mar- tin, B.) directed the jury that if the defendants' driver acted care- lessly, recklessly, wantonly, or improperly, but in the course of his servant had got nearly if not quite " Lush, J. : I am of the same opin- home, while, in the present case, the ion. The question in all such cases as the present is, whether the servant ■was doing that which the master em- ployed him to do. If he was, the mas- ter is liable for the negligence just as if he himself was guilty of it. Here the employment was to deliver the wine, and carry the empty bottles home; and if he had been merely going a roundabout way home, the master would have been liable ; but he had started on an entirely new journey on his own or his fellow-ser- vant's account, and could not in any way be said to be carrying out his master's emplo3'ment." 1 Kelly, C. B., in Bayley v. Man- chester, Sheffield & Lincolnshire Ry Co., Law Rep. 8 C. P. 153 (ExcL Ch.); aff. S. C. Law Rep. 7 C. P. 445 Burns v. Poulson, Law Rep. 8 C. P, 563 ; Joel v. Mon-ison, 6 C. & P. 501 Whatman v. Pearson, Law Rep. 3 C P. 422 ; Cosgrove v. Ogden, 49 N. Y (4 Sick.) 255; Weed v. R. R. 17 N Y. 362; Southwick v. Estes, 7 Cush 385; Priester v. Angley, 5 Rich. 44. 2 Limpus V. London Gen. Om. Co. 1 Hur. & C. 526. carman was a quarter of a mile from home ; but still he started on what may be considered a new journey en- tirely for his own business, as distinct from that of his master ; and it would be going a great deal too far to say that under such circumstances the master was liable." " Mellor, J.: I am of the same opinion. Generally speaking, the master is answerable for the negli- gent doing of what he employs his servant to do ; and it is not, as Cress- well, J., says, because the servant, in executing his master's orders, does so in a roundabout way, that the master is to be exonerated from liability. But here, though the carman started on his master's business, and had de- livered the wine and collected the empty bottles, when he had got within a quarter of a mile from the defend- ant's office, he proceeded in a directly opposite direction, and as soon as he started in that direction he was doing nothing for his master ; on the con- trary, every step he drove was away from his duty." 162 BOOK I.] LIABILITY OF MASTER FOR SERVANT. [§ 171. employment, and in doing that which he believed to be for the interest of the defendants, then the defendants were responsi- ble for the act of their servant, and that the instructions given by the defendants to the driver not to obstruct other omnibuses, if he did not observe them, were immaterial as to the question of the master's liability ; but that if the true character of the driver's act was, that it was an act of his own, and in order to effect a purpose of his own, then the defendants were not responsible. Upon this direction being excepted to, the exchequer chamber held that it was correct. Willes, J., in giving his judgment, said : " It appears clearly to me that this was (and it was treated by my brother Martin as) a case of improper driving, and not a case in which the servant did anything altogether inconsistent with the discharge of his duty to his master, and out of the course of his employment, a fact upon which it appears to me that the case turns. This omnibus of the defendants was driven in before the omnibus of the plaintiff. Now, of course, one may say, that it is no part of the duty of a servant to obstruct another omnibus, and that in this case the servant had distinct orders not to obstruct the other omnibus. I beg to say, in my opinion, those instruc- tions were perfectly immaterial. If they were disregarded, the law casts upon the master the liability for the acts of his servant, in the course of his employment, and the law is not so futile as to allow the master, by giving secret instructions to a servant, to set aside his liability. I hold it to be perfectly immaterial that the masters directed the servant not to do the act which he did. As well might it be said, that if a master, employing a servant, told him that he should never break the law, he might thus absolve himself from all liability for any act of the servant, though in the course of the employment." " I am also of opinion," said Byles, J., " that my brother Martin's direction in this case was correct. He uses the words, ' in the course of his employment,' which, as my brother Willes has pointed out, are expressions di- rectly justified by the decisions. His direction, as I understand it, amounts to this : that if a servant acts in tlie prosecution of liis master's business with the intention of benefiting his master, and not to benefit or gratify himself, then the master is responsible, although it were in one sense a wilful act on the part of the ser- vant. Now, it is said, that this was contrary to the master's instructions. That might be said in ninety-nine cases out of a 163 § 173.] NEGLIGENCE : [BOOK I. hundred, where actions are brought against the master to recover damages for the reckless driving of a servant. It is said that it was an illegal act. So, in almost every case of an action against the master for the negligent driving of a servant, an illegal act is imputed to the servant." ^ § 172. Not necessary that the service should have been perma- nent. A special service, for a particular period or purpose,"^ is enough to constitute the liability/, provided the servant at the time is acting within the general scope of his employment, and is not obeying the directions of a third person ^ who has some title to give directions,* such person not being an intermediate agent of the master,^ and is not wilfully acting for himseK instead of for his master.^ § 173. Nor does it matter that the servant is in the general employ of third persons. — Hence it is a logical inference that the principle does not cease to operate when the servant is in the em- ploy of a third person, if released for the particular work in ques- tion. Thus the fact that a person, who, being in charge of a horse with the assent of its owner, and engaged on his business, caused an injury by negligent riding, was in the general employment of a third person, does not exempt the owner of the horse from lia- bility for the injury, unless the relation of the third person to the business was such as to give him exclusive control of the means and manner of its accomplishment, and exclusive direction of the persons employed therefor.'^ So, as is said by Parke, J.,^ " there may be special circum- stances which may render the hirer of job-horses and servants responsible for the neglect of a servant, though not liable by vir- tue of the general relation of master and servant. He may become so by his own conduct, as by taking the actual manage- ^ See also Green v. The London * Garretzen v. Duenckel, 50 Mo. General Omnibus Co. 7 Com. B. (N. 104. S.) 290. 6 Stone v. Cartwright, 6 Tenn. 411 ; 2 McLaughlin v. Pryor, 4 M. & G. Brown v. Lent, 20 Vt. 529. 48; 1 C. & M. 354; Croft v. Allison, 6 Mitchell v. Crassweller, 13 C. B. 4 B. & Aid. 590 ; Taverner v. Little, 237 ; Storey v. Ashton, L. R. 4 Q. B. 5 Bing. N. C. 678 ; Wheatley r. Pat- 4 76 ; Story on Agency, § 451, note by rick, 2 M. & W. 650 ; Wilson v. Pe- Green. verly, 2 N. H. 548. 7 Kimball v. Cushman, 103 Mass. 8 Murphy v. Caralli, 3 H. & C. 462 ; 194. Coomes v. Houghton, 102 Mass. 211 ; 8 Quannan v. Burnett, 6 M. & W. Kimball v. Cushman, 103 Mass. 194. 499. 164 BOOK I.] LIABILITY OF MASTER FOR SERVANT. [§ 176. ment of the horses, or ordering the servant to drive in a partic- ular manner which occasions the damage complained of." § 174. No liahility for work merely accepted and performed prior to acceptance. — A person contracting to do a particular job does not, by accepting and paying for work done thereon by a mechanic without his prior authority, make himself liable for injuries caused to a third person by a negligent act com- mitted by the mechanic while doing the work, but not a part or result of the work itself. " This would not be an adoption by the defendant of anything that was not a part of or result from the work thus accepted. It would not, of itself, establish the relation of master and servant, with all its incidental consequences." ^ § 175. Not necessary that appointment should spring directly from master. — Nor is the case varied when the servants are ap- pointed by middle-men. Thus a railroad corporation on this prin- ciple is responsible for the negligence of its subalterns of the lowest grade, provided they are in the range of its appointments ; ^ a municipal corporation for negligence of sub-contractors ; ^ the owner of a mine, who controls it, for the negligence of under- servants who are appointed by a manager whom the ovmer appoints ; ^ the owner of property who receives its profits, but deputes its intermediate management to an agent, for the negli- gence of the laborers whom the agent appoints ; ^ and the owner of a ship for the negligence of the crew who are selected by the master at the owner's desire, the master being selected by the owner.^ But the mere fact that an owner has the power of re- moving workmen appointed by a contractor not under the own- er's control, does not make the owner responsible for the work- man's negligence.^ § 176. But there must be the power of appointment or super- 1 Coomes r. Houghton, 10* Mass. 790; Suydam u. Moore, 8 Barb. 358 ; 211. Althorf V. Wolf, 22 N. Y. 355. 2 Machu V. London & S. W. R. C. « Martin i-. Teniperley, 4 Q. B. 298; 2 Exch. 415. See Flower v. Penn. R. Diinford v. Trattles, 12 M. & W. 529; R. 69 Penn. St. 210, as to limit of ser- Fenton v. City of Dublin Steam vant's power of appointing subal- Packet Co. 8 Ad. & El. 835 ; Cuth- terns. bertson v. Parsons, 12 C. B. 304; « Hamburg Turnpike Co. v. City of Shuster v. McKellar, 7 E. & B. 724. Buffalo, 1 N. Y. Sup. Ct. 537. ' Reedio v. London & N. W. R. R. « 5 B. & C. 554. 4 Exch. 244. See Overton v. Free- » Holmes v. Orion, 2 C. B. N. S. man, 11 C. B. 867. 165 § 176.] NEGLIGENCE : [BOOK I. vision reserved^ — A brig, which was towed at the stern of a steamboat, employed in the business of towing vessels in the river Mississippi, below New Orleans, was, through the negligence of the master and crew of the steamboat, over whom those in charge of the brig had no control, brought into collision with a schooner lying at anchor in the river. A suit was brought by the owners of the schooner against the ow^ner of the brig for the damages sustained by the collision ; and the question was, whether he was liable therefor. It was held, upon full argument, that he was not, upon the ground that the master and crew of the steamboat were not the servants of the owner of the brig ; were not ap- pointed by him; did not receive their wages or salaries from him ; he having no power to order or control them in their move- ments.^ The defendants were employed by certain paving commission- ers, to pave a particular district, and contracted with B. to pave one of the streets included in such district. B.'s workmen, while paving the street, left a heap of stones at night in so unsafe a position that the plaintiff fell over it and sustained an injury. No evidence was adduced to show that the defendants in any way sanctioned the placing of the stones ; and it appeared that B. was in reality acting under the directions of the engineer and surveyor of the commissioners. It was held that as the relation of master and servant did not here exist between the defendants and B.'s employees, the defendants were not responsible for the latter's negligence.^ But where the owner of land employs a contractor to make certain excavations on the sidewalk adjoining such land, reserving a right to supervise the contractor's work ; and it ap- pears that the contractor leaves the sidewalk in a dangerous con- dition, of which the owner has notice ; the owner is liable for damages caused by such negligence.* 1 See Knight t;. Fox, 5 Exch. 721; s Overton v. Freeman, 11 C. B. Burgess r. Gray, 1 C. B. 578; Reedie 867; Rapson v. Cubitt, 9 M. & W. V. London & N. W. R. R. 4 Exch. 710. See also Cuthbertson v. Par- 244; McGuire v. Grant, 1 Dutch. 356 ; sons, 12 C. B. 304 ; Allen v. Havward, Elder V. Bemis, 2 Mete. 599; Ballou 7 Q. B. 960; Mersey Dock Trustees r. Farnum, 9 Allen, 47; Corbin v. v. Gibbs, 11 H. L. Cas. 686; Scriv- Mills, 27 Conn. 274; Stevens v. ener v. Pask, 18 C. B. N. S. 785. Squires, 6 N. Y. 435 ; Williamson y. * City of Chicago v. Robbins, 2 Wadsworth, 49 Barb. 294; Merrick Black, U. S. 419; Congreve u. Morgan, V. Brainerd, 38 Barb. 574. 5 Duer, 495 ; Congreve v. Smith, 18 N. 3 Sproul V. Hemingway, 14 Pick. 1. Y. 79; Creed v. Hartman, 29 K Y. 591. 166 BOOK I.] LIABILITY OF MASTER FOR SERVANT. [§177. § 177. Relationship of master and servant must exist as to the act the imperfect performance of which constitutes the iiegligence com- plained of.^ — Thus in a leading English case, A. the owner of a carriage, hired to draw his carriage, of B. a stable-keeper, a pair of horses for a day, the driver C. to be appointed by the stable- keeper, and there being no evidence of any adoption or recogni- tion by A. of C. as his servant. Through the negligence of C. injury occurred to D. It was held by Lord Tenterden, C. J., and Littledale, J., that A. was not responsible for C.'s negligence. " According to the rules of law," said Littledale, J., " every man is answerable for injuries occasioned by his own personal negli- gence ; and he is answerable also for acts done by the negligence of those whom the law denominates his servants ; because such servants represent the master himself, and their acts stand upon the same footing as his own. And in the present case, the ques- tion is, whether the coachman, by whose negligence the injury was received, is to be considered a servant of the defendant. For the acts of a man's own domestic servants there is no doubt that the law makes him responsible ; and if this accident had been oc- casioned by a coachman who constituted a part of the defendant's own family, there would be no doubt of the defendant's liability ; and the reason is that he is hired by the master either personally, or by those who are intrusted by the master with the hiring of ser- vants, and he is therefore selected by the master to do the busi- ness required of him." And this applies to " other servants whom the master or owner selects and appoints to do any work ; or superintend any business, although such servants be not in the immediate employ or under the superintendence of the master." ^ So, where ^ the owner of a carriage hired four post-horses and two postilions of A., a livery stable-keeper, for the day, to run from London to Epsom and back, and in returning, the pos- 1 McLaughlin v. Pryor, 4 Scott, N. & N. 358; S. C. 6 Ibid. 359 ; Smith i-. R. 655 ; 5. C. 1 Car. & M. 354 ; Qiiar- Lawrence, 2 Man. & Ry. 1 ; Samnu'U man v. Burnett, 6 M, & W. 499; the v. Wright, 5 Esp. N. P. C. 2G3 ; Scott judgments of Abbott, C. J., and Lit- v. Scott, 2 Stark. N. P. C. 438 ; Brady tledale, J., in Laugher v. Pointer, 5 B. v. Giles, 1 M. & Rob. 494 ; per Pat- & C. 547 ; Dalyell v. Tyrer, E., B. & teson, J., 8 A. & E. 839. E. 898 ; Hart v. Crowley, 12 A. & E. ^ Laugher v. Pointer, 5 B. & C.547. 378; Taverner V. Little, 5 Bing. N. C. « s,„ith y. Lawrence, 2 Man. & 678; Croft v. Alison, 4 B. & Aid. 590; R. 1. Judgm., Seymour v. Greenwood, 7 H. 167 §178.] negligence: [book I. tilions damaged the carnage of B. ; — it was held, that A., as owner of the horses and master of the postihons, was Hable to B. for such damage.^ So in another English case,^ the lessee of a ferry hired of the defendants for the day a steamer with a crew to carry his passen- gers across. The plaintiff, having paid his fare to H., passed across on the steamer, and while on board was injured by the breaking of a rope, owing to the negligence of the crew in the man- ner of mooring ; and it was held, that the crew remained the ser- vants of the defendants, who were therefore liable for their negli- gence ; and that, as the negligence was such as would have made the defendants liable to a mere stranger, and the plaintiff was on board with their consent, it was immaterial that he was a passen- ger under a contract with H. The defendants,^ two elderly ladies, being possessed of a car- riage of their own, were furnished by a job-master with a pair of horses with a driver by the day or drive. They gave the driver a gratuity for each day's drive, provided him with a livery hat and coat, which were kept in their house ; and after he had driven them constantly for three years, and was taking off his livery in their hall, the horses started off with their carriage and inflicted an injury upon the plaintiff. It was held, that the defendants were not responsible, as the coachman was not their servant, but the servant of the job-master. Yet as has been already seen, a person may under such circumstances render himself personally liable by giving special directions to the driver or by otherwise taking the management of the coach into his own hands. § 178. Whe7'e a person undertakes to do a particular work, he is liable for his subordinate's negligence in performing such work. — By the Roman law, to adopt the exposition of a recent intelli- gent Swiss writer,* the conductor operis is liable for the wrongful acts (Schuld) of his workmen, which prevent the performance of his contract. Of this contract the first element is the due per- formance of the work assumed ; t le second is the careful hand- ling and care of the locator's material given to be worked upon. 1 See Dansey v. Richardson, 3 E. & » Quarman v. Burnett, 6 Mee. & B. 144. W. 499. 8 Dalyell v. Tyrer, Ell., Bla. & Ell. 4 Wyss, Haflung fiir fremde Culpa. 899; 28 L. T. Q. B. 52; Crocker v. Zurich, 1867. Calvert, 8 Ind. 127. 1(58 BOOK I.] LIABILITY OF MASTER FOR SERVANT. [§ 180. Hence the contract may be violated either by imperfect execution either as to quality or time, or by the injury of the locator's ma- terial. ^ The Roman law does not accept the theory which rests the conductor's liability in such case on a silent guarantee. Some passages from the Digest are cited, indeed, to sustain this theory ; but as to the principal,^ it has been well observed that if the jurist here apparently makes the conductor operis liable for the damnum of the custos, this is to be understood cum grano satis ; the true meaning being that the conductorh&covaes liable for neg- lect in respect to the choice or oversight of the custos. § 179. Nor does it make any difference that the service is gra- tuitous, or for the benefit of the plaintiff. — If in such case the de- fendant would be liable for his own negligence, he is liable for the negligence of his servants, acting within the range of their em- ployment. Thus where the defendant (a gas company), being informed that gas was escaping in the cellar of an occupied house, sent its employee to ascertain the location of the leak (it being responsible for the loss and repairs, if the leak was in the service pipe), and the person so sent, by lighting a match in the cellar, caused an explosion, by which the plaintiff was injured, it was ruled in New York, that the employee, although acting for the benefit of the occupants of the house as well as of the defendant, was the agent of the defendant only, and the defendant was liable for his negligence. If the employee, so argued the court, is in- competent or ignorant, it is negligence to select him or send him without proper instruction. If competent, the master is liable for his careless performance of his employment. If the service was the business of the defendant, although beneficial to the occupants, the defendant was bound to exercise ordinary care and prudence. Even if the service was gratuitous, the company was bound to due diligence in discharge of the duties it undertook.^ § 180. Master cannot hy special contract with employee make the latter exclusively liable. — An employer cannot relieve him- self from liability for negligence by a contract with his employee that the latter shall be exclusively liable.* » See Ellis v. Sheffield Gas Co. 2 * Water Co. r. Ware, 16 Wall. 566; E. & B. 767; infra, § 183. Milford v. Holbrook, 9 Allen, 21; * L. 41. D. h. t. 19. 2. Congreve v. Smith, 18 N. Y. 79; Con- ' Lannen v. Albany Gas Co. 44 N. greve v. Morgan, 18 N. Y. 84 ; Storrs Y. 459. 169 §181.] negligence: [book i. § 181. IVJien, however, a contractor or other special agent takes entire control of a work, the employer not interfering, the em- ployer, supposing there was no negligence in the selection of the contractor, is not liable to third parties for injuries to such parties by the contractor's negligence.^ — Thus, for instance, where the owner of land employs a contractor to build a house for him, and while the building, under the contract, is in the contractor's exclusive possession, a stranger is injured by the negligence of the contractor's workman, the owner of the land is not liable for such injury. 2 " The test is, whether the defendant retained the power of controlling the work." ^ Thus in an action ^ for negli- gently pulling down a wall of the defendant's house adjoining the plaintiff's, evidence was given that the wall was taken down by a builder at an estimated cost, in pursuance of directions given to him by an architect employed by the defendant, and who had the general superintendence of the work at the defendant's house. It appeared that, in consequence of the removal of a beam from the wall, the front of the plaintiff's house fell down. It appeared, also, that the plaintiff's house ought, as a reasonable precaution, to have been shored up before the defendant's wall was removed. The judgment of the court was that the defendant was not liable ; Pollock, C. B., saying: " We have no evidence but this : that a tradesman was applied to, to do that which was necessary to be done, under the circumstances of the case, and it must be assumed, that a direction was given to do it in the ordinary way, with all proper precautions, and taking care not to do any mischief. No doubt, where a thing in itself is a nuisance, and must be prejudi- cial, the party who employs another to do it is responsible for all the consequences that may have arisen; but when the mischief V. Utica, 17 N. y. 108; Creed w. Hart- Kernan) 432; Forsyth v. Hooper, 11 mann, 29 N. Y. 591. Allen, 419. See infra, § 279. 1 Cuthbertson v. Parsons, 12 C. B. « Steel v. S. E. R. R. 16 C. B.556 ; 304 ; Rapson v. Cubitt, 9 M. & W. Scammon v. Chicago, 25 111. 424 ; Fel- 710; Hole v. Sittingbourne R. R. 6 ton v. Deall, 22 Vt. 171. H. & N. 488; Welfare v. Brighton R. * Crompton, J., in Sadler v. Hen- R. Co. 4 Q. B. 698; Readle v. Lon- lock, 4 E. & B. 570; cited in Warbur- don & N. E. R. R. 4 Exch. 243, over- ton v. Great West. R. Co. Law Rep, ruling Bush v. Steinman, 1 B. & P. 2 Exch. 30, and Murray v. Currie, 403 ; Hilliard v. Richardson, 3 Gray, Law R. 6 C. P. 25. See Murphy v. 349 ; Barry v. City of St. Louis, 17 Caralli, 3 H. & C. 462. Mo. 121 ; Kelly v. Mayor, 11 N. Y. (1 * Butler v. Hunter, 7 H. & N. 826. 170 BOOK I.] LIABILITY OF MASTER FOR SERVANT. [§ 181. arises not from the thing itself, but from the mode in which it is done, then the person ordering it is not responsible unless the re- lation of master and servant can be established," So in another case,^ the defendants, who were employed by A. to pave a district, sub-contracted with B. to pave a particular street. B.'s workmen, when paving such street, left some stones exposed in such a way that the plaintiff was injured by falling over these stones. No per- sonal interference of the defendants with, or sanction of, the work of laying down the stones was proved. The court held that the defendant was not liable ; and in his judgment Maule, J., said; " One mode of inquiring whether the defendant is liable in cases like the present is, to see whether the act was done by his servant. If the person who committed the act can be so considered, the defendant will be liable, but he cannot be so considered if he is a sub-contractor. If a person is employed to do the particular thing done, the cases show that the person employing him is lia- ble. So, in this case, the sub-contractor might be liable for the acts of his servants ; but it does not follow that the defendants who contracted with him are liable for his acts. I think that this case falls within the principle of those cases which decide that when work is being done by a sub-contractor, he is civilly and criminally liable ; the contractor not liable But here the defendants are sought to be charged, simply because they have contracted with another man to do the work, whose servants have been guilty of negligence. They are guilty of no negligence. They contract with a person who does what is wrong, and he alone is liable." So, where a builder had contracted with the committee of a club to make alterations and improvements in the club-house, and prepare and fix the necessary gas-fittings, and the builder made a sub-contract with a gas-fittter to do this latter portion of the work, and the gas-fitter's workmen allowed the gas to escape and cause an explosion which injured the butler of the club and his wife, — it was held that the gas-fitter, and not the builder, was liable for the negligence.^ So it has been held in New York, that where the defendants, who had a license from the city to construct, at their own expense, a sewer in a public street, engaged another person by contract to construct the whole work at a stipulated price, they were not liable to third persons ^ Overton v. Freeman, 11 C. B. ^ Rapson v. Cubitt, 9 Mee. & W. 867. 710. 171 § 182.] NEGLIGENCE : [BOOK I. for any injury resulting from the negligent condition in which the sewer had been left over night by the workmen engaged in its construction.^ The rule is thus well expressed in Pennsylvania, by Sharswood, J. : 2 "It may be considered as now settled that if a person em- ploys others, not as servants, but as mechanics, or contractors in an independent business, and they are of good character, if there was no want of due care in choosing them, he incurs no liabil- ity for injuries resulting to others from their negligence or want of skill.^ If I employ a well known and reputable machinist to construct a steam-engine, and it blows up from bad materials or unskilful work, I am not responsible for any injury which may result, whether to my own servant or to a third person. The rule is different if the machine is made according to my own plan, or if I interfere and give directions as to the manner of its con- struction. The machinist then becomes my servant, and respon- deat superior is the rule."* § 182. Same principle extends to all departments of agency. — Nor, as has already been incidentally noticed, is this principle limited to cases of contracts entered into for building houses, or carrying on of public works. It applies to the simplest as well 1 Blake v. Ferris, 5 N. Y. (1 Sel- master and servant does not exist ; den) 48. that unless the relation of master and 2 Ardesco Oil Co. v. Gilson, 63 Pa. servant exists between the defendant St. 150. in an action of this character and the 8 Painter v. The Mayor of Pitts- person through whose negligence the burg, 46 Penn. St. (10 Wright) 213. plaintiff sustained his injury, the very * Godley v. Hagerty, 8 Harris, 387 ; reason upon which the doctrine of Carson v. Godley, 2 Casey, 111. See respondeat superior is founded is want- infra, §§ 727, 774, 775. ing ; that where there is no power of So also in California by Sanderson, selection or direction there can be no J. (Du Pratt V. Lick, 38 Cal. 691): superior; and that where a man is " The question presented by these ex- employed to do the work with his own ceptions is not an open one in this means and by his own servants, he court. In Boswell v. Laird, 8 Cal. has the power of selection and direc- 469, it was most elaborately argued by tion, and he, and not the person for counsel, and considered by the court, whom the work is primarily done, is and it was held, after a review of all the superior. The doctrine of that the cases, that the responsibility in case has been since recognized in the cases of this character is upon him case of Fanjoy v. Scales, 29 Cal. 243. who has the control and management We are entirely satisfied with it, and of the work ; or, in other words, that find no occasion to renew the discus- the doctrine of respondeat superior has sion." no application when the relation of 172 BOOK I.] LIABILITY OF MASTER FOR SERVANT. [§ 184. as to the most comprehensive forms of agency. Thus, where a butcher employed a licensed drover, in the way of his ordi- nary calling, to drive a bullock to Smithfield to the butcher's slaughter-house, and the drover negligently sent an inexpe- rienced boy with the bullock, who drove the beast into the plaintiff's show-room, where it broke several marble chimney- pieces ; it was held, that the butcher was not liable for the damages.^ § 183. Where a railway company entered into a contract with A. to construct a portion of their line, and A. contracted with B., who resided in the country, to erect a bridge on the line. B. had in his employment C, who acted as his general servant, and as a surveyor, and had the management of B.'s business in London, for which he received an annual salary. B. entered into a contract with C. by which C. agreed for .£40 to erect a scaffold, which had become necessary in the building of the bridge ; but it was agreed that B. should find the requisite materials, and lamps, and other lights. The scaffold was erected upon the footway by C's workmen, a portion of it improperly projected, and owing to that and the want of sufficient light, D. fell over it at night, and was injured. After the accident, B. caused other lights to be placed near the spot, to prevent a recurrence of similar accidents. It was held that an action was not maintainable by D. against B. for the injury thus occasioned.^ § 184. In a New York case the evidence was that the plaintiff, being the owner of a canal boat, employed the defendants to tow the same from Albany to New York. The boat used by the de- fendants in towing the same did not belong to them, but to a steamboat company, and was chartered by the defendants for the season, under an arrangement by which they were to pay so much for a round trip for the use thereof, and the company were to pay the expense of running the boat, and were to hire and pay the men engaged thereon, and the defendants were to receive the earnings of the boat after paying expenses. The canal boat, after being towed to New York, was sunk, in the har- bor, through the negligence of the hands managing the tow-boat. It was properly ruled, in conformity with the above law, that the 1 Mulligan v. Wedge, 4 Ad. & Ell. « Knight v. Fox, 5 Exch. 721 ; to be 737. See also Bissell v. Torrey, 65 distinguished from Steel i;. S.E. R. R. Barb. 188; infra, § 778. 16 C. B. 550. 173 § 187.] NEGLIGENCE : [BOOK I. defendants were not liable to the plaintiff for the consequences of such negligence, but that for the negligence of those employed on the towing boat, the owners of such boat alone were liable.^ § 185. But emjjloyer cannot thus he relieved of duty attaching to himself specifically . — When, however, the thing the contractor does is one which it is the duty of the employer to do either personally or through an agent, the employer is liable for the contractor's negligence.^ And this is eminently the case when the contractor does the work under the employer's authorization.^ § 186. So eyyiployer is not relieved when negligence is tvithin the scope of the employer's directions. — " Common justice," said Clifford, J., in a case where this question was raised in the su- preme court of the United States,^ " requires the enforcement of this rule, as, if the contractor does the thing which he is em- ployed to do, the employer is as responsible for the thing as if he had done it himself ; but if the act which is the subject of complaint is purely collateral to the matter contracted to be done and arises indirectly in the course of the performance of the work, the employer is not liable, because he never authorized the thing to be done." ^ § 187. JVor can a principal on this ground evade liability for a nuisance. — A registered joint-stock company contracted with an individual for the laying do"svn of their gas-pipes in the town of Sheffield, without having obtained any special powers for that purpose, so as to make the contractors primarily responsible. While making the necessary excavations, a heap of stones was left in one of the streets over which the plaintiff fell in the dark, thereby sustaining damage. The plaintiff sued the company for a nuisance, alleging special damage to himself. It was objected that the suit should have been against the contractor. But Lord Campbell, C. J., held that the defendants were responsible, as principals in an unlawful act.^ So, it must be remembered, to 1 Bissel V. Torrey, 65 Barb. 188. Ell. & B. 770 ; Newton v. Ellis, 5 Ell. 2 Picard V. Smith, 10 C. B. (N. S.) & B. 770; Lowell v. K. R. 23 Pick. 470; Gray v. PuUen, 5 B. & S. 970. 31; Bobbins v. Chicago, 4 Wall. 679 ; See supra, § 1 78. Chicago y. Bobbins, 2 Black, U. S. 3 See infra, § 279 ; Cincinnati v. 428. Stone, 5 Ohio St. 38. 6 ElUs v. Sheffield Gas Co. 2 E. & * Water Co. v. Ware, 16 Wall. 566. B. 767. In this case the maxim, qui ^ See also Hole v. R. R. Co. 6 facit per alium facit per se, may be Hurls. & N. 497; Ellis v. Gas Co. 2 said to have controlled. But the 174 BOOK I.] LIABILITY OF MASTER FOR SERVANT. [§ 190. adopt the language of Willes, J., that it is not necessary " that the relation of principal and agent, in the sense of one command- ing and the other obeying, should subsist in order to make one responsible for the tortious act of another ; it is enough if it be shown to have been by his procurement and with his assent. The cases where the liability of one for the wrongful act of another has turned upon the relation of principal and agent are quite con- sistent with the party's liability, irrespective of any such relation : as if I agree with a builder to build me a house, according to a certain plan, he would be an independent contractor, and I should not be liable to strangers for any wrongful act done by him in the performance of his work, but clearly I should be jointly liable with him for a trespass on the land if it turned out that I had no right to build upon it." ^ § 188. So it has been ruled in Indiana, that the owner of a lot on which a similar excavation was made was liable for injuries sus- tained by a passenger from neglect properly to fence in such ex- cavation, though the land was at the time in the hands of a con- tractor exclusively charged with the work.^ § 189. When an emplo7/er emj^lot/s a contractor to do a particu- lar work which involves the interposition of sub-contractors, and the first contractor engages with such sub-contractors to do the work, leaving the entire control of such tvork in the hands of the sub- contractors, the first contractor is not liable to the employer for the sub-contractors'' negligence. — This, when it is a part of the contract, either express or implied, that the work should be so sublet, or when it is essential to the nature of the work that such should be the case, is a doctrine of the Roman law. The conductor operis, in such case, is not liable to the locator for the negligence of the persons so employed by the conductor. § 190. Distinctive views as to municipal corporations. Munic- ipal corporation is liable for the negligenice of its servants in ex- ecuting its specific orders.^ — Liability necessarily attaches where same result would have been reached duty to do which, not beinj:!^ bv the if the suit had been against the com- contract attached to the contractor, pany for negligence in not sufliciently remained with the owner. Infra, §§ guarding the ditches. 81()-818. ^ Upton V. ToAvncnd, 17 C. B. 71. « Foreman v. Mayor of Canterbury, 2 Silvers v. Nordlinger, 30 Ind. 53. L. K. (5 Q. B. 214; (Jrimes v. Keene, In this case, however, the neglect was 52 N. II. 330; Hamburg Tnrnp. Co. in not fencing in the excavation, the v. Buffalo, 1 N. Y. Sup. Ct. 53 7; lien- 175 § 191.] NEGLIGENCE : [BOOK I. the work negligently performed by the agent is one from which the municipal corporation derives emolument. Thus, in a case hereafter more fully discussed, the city of Philadelphia has been held liable to third parties for the negligence of its board of water-works in the waste of the water power of the river Schuyl- kill, from which water power the city receives large rents.^ The same rule applies to negligence by sub-employees in performing a specific work directed or ratified by the corporation.^ § 191. But not liable for collateral negligence. — If an officer is independent of the municipal corporation, so far as concerns the orbit of his action, the corporation cannot at common law be made liable for his negligence in duties neither directed nor ratified by the corporation. " While it is undoubtedly true," correctly declares Burrows, J., in a late case in Maine,^ " aside from all statute remedies provided against them, cities, towns, and other quasi corporations will be liable for the actual malfeasance of their officers, agents, and employees, when their acts are author- ized or ratified by the corporation councils having control of the subject matter ; as, for example, for all wrongs done to another party in the assertion of alleged rights of property in the corpo- ration, and also for neglects in the performance of corporate duty, where there has been a special duty imposed, or a special author- ity conferred by and with the consent of the corporation ; there is a strong line of decisions in which it is held, that for the neglects of their officers and agents in the performance of those duties imposed upon them by law for public purposes exclusively inde- pendent of their corporate assent, they are liable only when a right of action is given by statute ; that as to them, in such cases, the maxim, respondeat superior, does not apply ; that negligence in the performance of such duties cannot be held to be the neg- ligence of the corporation." * When the officer is clothed by ley V. Lyme, 5 Bing. 91 ; 5. C 1 Bing. ^ Hamburg Turnp. Co. v. Buffalo, N. C. 222; 2 CI. & Fin. 331; Bailey v. 1 N. Y. Sup. Ct. 537. New York, 3 Hill, 531 ; Pittsburg v. » Morgan v. Hallowell, 57 Me. 377. Grier, 22 Penn. St. 54 ; Weightman * See Mitchell v. Rockland, 52 V. Washington, 1 Black, 39 ; Bigelow Maine, 118; Bigelow v. Randolph, 14 V. Randolph, 14 Gray, 543; Thayer Gray, 541; Eastman v. Meredith, 36 V. Boston, 19 Pick. 511 ; Cincinnati v. N. H. 284 ; Storrs v. Utica, 17 N. Y. Stone, 5 Ohio St. 38. 104, and the cases therein cited, for a ^ City of Phil. V. Gilmartin, 71 full discussion of the distinction which Penn. St. 140. obtains between ordinary corporations 176 BOOK 1.] LIABILITY OF MASTER FOR SERVANT. [§ 192. statute with distinct responsibilities and powers, this qualification is indisputable, even though the ofl&cer may be appointed by the corporation.^ Thus, it has been correctly determined in New Hampshire,^ that a town is not liable by reason of the negligent conduct of a surveyor in the execution of his office ; and it makes no difference, as to the rules to be applied in determining their li- ability, whether the defects arise from the neglect or fault of the surveyor or from some other cause. So also, in Massachu- setts, a municij^al corporation is not liable in damages for an injury sustained by the collateral carelessness of a laborer em- ployed by a highway surveyor in repairing a highway.^ At the same time, it is conceded that a surveyor, by whom or under whose direction repairs may be made or work done upon or with reference to a highway, may be deemed the agent of the town to receive and charge the town with notice of an alleged defect, insufficiency, or want of repair existing under his special observation and superintendence. The fact that a defect, insufficiency, or want of repair of a highway existed through the fault of the surveyor who caused it, would be evi- dence from which the jury might find knowledge of its existence on the part of the town.* § 192. If negligence does not affect the work directed hy cor- poration^ no liahility reverts. — Hence it may be generally stated that municipal corporations are not responsible for the negligence of their employees, provided such negligence does not affect the work for the due execution of which the corporation is respon- sible. In such cases the rule *' respondeat superior " does not apply.^ On the other hand, when the work directed is done negligently, then the negligence is to be imputed to the person directing it, and the official status of the agent does not intercept the imputation. Thus it has been held in New Hampshire that aggregate and quasi corporations in ' Walcott v. Swampscott, 1 Allen, this respect. See infra, § 195, 258. 101, approved in Barney i;. Lowell, 98 1 Walcott V. Swampscott, 1 Allen, Mass. 571. 101 ; White v. Phillipston, 10 Met. * Hardy v. Keene, ut sttpi-a ; infra, 108; Hafford v. New Bedford, 16 §967. Gray, 297; Morrison v. Lawrence, 98 * White v. Phillipston, 10 Mctc. Mass. 219 ; Russell u. Mayor, 2 Den io, 108; Bi;:;clow u. Randolph, 11 Gray, 461; Reilly v. Philad. 60 Penn. St. 543; Child v. Boston, 4 Allen, 52; 467 ; Atwater v. Bait. 31 Md. 462. Barney t;. Lowell, 98 Mass. 5 71. 3 Hardy v. Keene, 52 N. H. 370. 12 177 § 105.] NEGLIGENCE : [BOOK I. the superintendent of water-works of a city, who, in searching for a leak, digs a hole in the street, acts in this respect, not as a pub- lic officer but as a servant of the town, which is hence liable for his negligence.^ § 193. No liability generally attaches for negligence of a con- tractor. — In Nqw York it is held that a municipal corporation is not liable for the negligence of a contractor, even though the con- tract specifies that the work is to be done under the dii'ection and to the satisfaction of the city authorities, if practically the con- tractors move independently of the city.^ In Pennsylvania ^ and Missouri * the same view is held. " It is difficult," says Judge Strong,^ " to discover any sub- stantial reason or good policy for holding the present defendants (the city of Pittsburg) responsible to the plaintiff. The neg- ligence complained of was not theirs. It does not appear that they knew of it. The verdict determines that the fault was the contractors'. Over them the defendants had no more con- trol than the plaintiff's husband had. They were not in a sub- ordinate relation to the defendants, neither servants nor agents. They were in an independent employment. And sound policy demands that in such a case the contractor alone should be held liable. In making a sewer he has, necessarily, the temporary occupancy of the street in which the work was done, and it must be exclusive. His servants and agents are upon the ground, and he can more conveniently and certainly protect the world against injury from the work than can the officers of the municipal cor- poration." § 194. On the other hand, where the municipal corporation has the exclusive care and control over public streets, it is no de- fence that the work of repairing the streets has been given over to a particular contractor, if the city has notice either express or constructive of a nuisance which is thereby produced.^ § 195. But a municipal corporation is not liable for its servants* negligence in matters not within its legal or constitutional power."' 1 Grimes v. Keene, 52 N. H. 330. on R. K. Law, 235 ; Scammon v. Chi- 2 Pack V. Mayor, 4 Selden, 222 ; cago, 25 111. 424. Kelly V. Mayor, 11 N. Y. (1 Kernan) ^ Painter v. Mayor, supra. 432. See supra, § 181. « City of Chicago v. Robbins, 2 8 Painter v. Mayor, 46 Penn. 213. Black, U. S. 417. * Barry v. St. Louis, 17 Mo. 121. '' Mitchell v. Rockland, 52 Me. See Hilliard on Torts, § 453; Pierce 118; Anthony v. Adams, 1 Mete. 178 BOOK I.] LIABILITY OF MASTER FOR SERVANT. [§ 197. § 196. Distinctive views as to private corporations. — This topic is hereafter independently discussed,^ It may, however, be inci- dentally observed that as corporations can only act through agents, there is necessity as well as policy in this case for enforcing the liability of the corporation for the agent within the restrictions specified above.^ § 197. Distinctive views as to official subordinates, — The law on this point, also, is independently considered.^ Mass. 660 ; Morrison v. Lawrence, 98 falo & Hamburg Turnpike Co. u. Buf- Mass. 219 ; Mayorr. Cunliff, 2 Comst. falo, 1 N. Y. Sup. Ct. 537, cited 165 ; Cuyler v. Rochester, 12 Wend, infra, § 252. 165; and other cases, cited in Dillon ^ See infra, § 279. onMunic. Corp. (2d ed.) § 767-8. And ^ ggg also infra, § 222, 241. see infra, § 258-9. See, however, Buf- » See infra, § 288. 179 CHAPTER V. MASTER'S LIABILITY TO SERVANT. I. Who are sen'ants accepting the risks of service, § 201. Volunteer assisting servant is a servant, §201. But persons paying fare by contract on railroads are not its servants, though employed on it, § 202. Injury must be received during service, §203. n. Master does not warrant servant's safety, § 205. But is directly liable for his own negli- gence to servants, § 205. III. What mechanical risks servant as- sumes, § 206. Only those of which he has express or implied notice, § 206. Must be advised of latent risks in his place of working, § 209. And so of extraneous latent dangers, §210. So also of defects of which employer is not, but ought to have been, cogni- zant, § 211. But employer not bound to adopt every possible improvement, § 213. Employee acquiescing after cognizance loses right of action, § 214. But this does not apply when employee is not competent to understand risks, § 216. Question of acquiescence for jury, § 217. Employee called upon in haste to execute orders not to be presumed to recollect defect, § 219. When employer promises to remedy defect, but does not do so, § 220. Negligence of middle-men in selecting material, &c., is negligence of princi- pal, § 222. Notice to middle-men not necessarily notice to employer, § 223. IV. What negligence of fellow-servants a servant assumes, § 224. Master not liable for negligence of fel- low-servants unless they have been negligently appointed or retained, §224. Who are servants in this sense, § 226. What are the injuries to which the ex- ception relates, § 227. Who are the "fellow-servants" whose negligence is thus part of the common risk, § 229. Need not be on parity of service, § 229. Must be in same circle of employment, §230. What is the negligence in. appointment or retention that makes the master liable, § 237. What is evidence of incompetency by employee, § 238. Effect of negligent appointments by middle-men, § 241. When master promises to correct neg- ligence of subaltern, § 242. V. Province of court and jury, § 243. VI. Contributory negligence by servant, §244. VII. Action by one servant against another, § 245. § 200. Where an employment is accompanied with risks of which those who enter into it have notice, they cannot, if they are injured by exposure to such risks, recover compensation from their employer. This proposition, which depends on principles hereinbefore stated,^ will now be discussed in detail. 1 Supra, § 130; Mear r. Holbrook, R. v. Divinney, 17 Ohio St 20 Ohio St. 137 ; Pitts. & F. W. R. Young v. Shields, 15 Ga. 359 180 197; Cen- BOOK I.] master's liability TO SERVANT. [§ 201. I. WHO ARE SERVANTS THUS ASSUMING THE RISKS OF SERVICE. § 201. A volunteer assisting a servant stands in the same rela- tion as a servant. — It does not vary the case if it appear that the plaintiff, instead of being regularly employed by the defendant, voluntarily undertook without an appointment, to act as the defendant's servant.^ " The defendants," said Bramwell, J., in stating a case in which this point was ruled, " were possessed of a certain railway, and carriages and engines, and their servants were at work on the railway in their service with those carriages and engines. The deceased Degg voluntarily assisted some of them in their work. Other of the defendants' servants were guilty of negligence about their work, and by reason thereof the deceased was killed. The defendants' servants were competent to do the work, and the defendants did not authorize the negli- gence. We are of opinion that, under these circumstances, the action is not maintainable. The cases show that if the deceased had been a servant of the defendants and injured under such cir- cumstances as occurred here, no action would be maintainable, and it might be enough for us to say that those cases govern this ; for it seems impossible to suppose that the deceased, by volunteer- ing his services, could have any greater rights or impose any greater duties on the defendants than would have existed if he had been a hired servant. But we were pressed by an expres- sion found in the cases, that a servant undertakes, as between him and his master, to run all ordinary risks of the service, including the negligence of a fellow-servant, Wiggett v. Fox being cited for this purpose ; and it was said there was no such undertaking here. But in truth there is as much in the one case as in the other. The consideration may not be so obvious, but it is as competent to a man to agree, and as reasonable to hold that he does agree, that if allowed to assist in the work, though not paid for it, he will take care of himself from the neg- ligence of his fellow-workmen, as it would be if he were paid for tral R. R. V. Grant, 46 Ga. 417; Chic. Vroom, 293 ; Baulcc v. N. Y. & II. & N. W. R. R. Co. V. Swett, 45 111. R. R. 5 Lansing', 436. 197 ; 111. Cen. R. R. v. Sewell, 46 III. » Potter v. Faulkner, 1 B. & S. 99 ; C. & A. R. R. Co. v. Murphy, 53 800; Depg i;. Midland R. R. 1 II. & 111. 339 ; Honner v. 111. Cent. 15 111. N. 773; Flower v. Penn. R. R. 69 Pa. 550; Harrison v. Cent. R. R. 2 St. 210; New Orleans, &c. R. R. u. Harrison, 48 Miss. 112. 181 § 201.] NEGLIGENCE [book I. his services. But we are also told that there was and could be no agreement ; that Degg was a wrong-doer, and therefore that the action was maintainable. It certainly would be strange that the case should be better if he were a wrong-doer than if he had not been. We are of opinion that this argument cannot be supported. We desire not to be understood as laying down any general prop- osition that a wrong-doer never can maintain an action. If a man commit a trespass on land, the occupier is not justified in shooting him or injuring him. If the occupier were sporting or firing at a mark on his land, and saw a trespasser and fired care- lessly and hurt him, an action would lie." ^ 1 Degg V. Midland R. R. 1 H. & N. 773. In Flower v. Penn. R. R. Co. 69 Penn. St. 210, Agnew, J., said: — " The true point of this case is, that in climbing the side of the tender or engine at the request of the fireman, to perform the fireman's duty, the son of the plaintiffs did not come within the protection of the company. To recover, the company must have come under a duty to him, which made his protection necessary. Viewing him as an employee at the request of the fireman, the relation itself would de- stroy his right of action. Caldwell v. Brown, 3 P. F. Smith, 453 ; "Weger v. Penna. Railroad Co. 5 Ibid. 460 ; C. V. Railroad Co. v. Myers, 5 Ibid. 288. Had the fireman himself fallen in place of the boy, he could have no remedy. It does not seem to be rea- sonable that his request to the boy to take his place, without any authority, general or special, can elevate the boy to a higher position than his own, and create a liability where none would attach had he performed the service himself. It is not like the case of one injured while on board a train by the sufferance of the conductor, whose general authority extends to receiving and discharging persons to and from the train. Penna. Railroad r. Books, 7 P. F. Smith, 339. It is not like 182 those cases where an injury happened to boys crawling under the cars to get through a train occupying a public street, which they had a right to cross. Rauch v. Loyd & Hill ; Penna. Railroad Co. v. Kelly, 7 Casey, 358 & 372. Nor does it resemble the case of Kay V. Penna. Railroad Co. 15 P. F. Smith, 269, decided at Philadel- phia last year, where detached cars were sent around a curve, without a brakeman in charge, upon a track which the public had been in the habit of travelling over constantly for a long time with the knowledge of the company, from one part of the city of Williamsport to another. Here the boy was voluntarily where he had no right to be, and where he had no right to claim protection ; where the company was in the use of its private ground, and was not abusing its privi- leges, or trespassing on the rights or immunities of the public. The only apology for his presence there is the unauthorized request of one who could not delegate his duty, and had no ex- cuse for visiting his principal with his own thoughtless and foolish act. Nor can the mere youth of the boy change the relations of the case. That might excuse him from concurring negli- gence, but cannot supply the place of negligence on the part of the company, or confer an authority on one who has BOOK I.] master's liability TO SERVANT. [§ 203. § 202. Agents of express companies., and pedlers on railroads paying passage by contract., not servants of railroad. — But the agent of an express company, doing business on a railroad, such agent having his passage paid for by contract, is not the servant of a railroad.^ Thus, it has been ruled that if a navigation or railroad com- pany engaged in transporting freight and passengers for hire, as common carriers, rents a room to a person for selling liquors and cigars, at a stipulated rent, and is to carry and board him as a part of the contract, he is not an employee, nor is he a member of the establishment, and the company is not released from lia- bility for injuries he may sustain from the negligence of other employees of the company, but must stand by the rule applicable to passengers.^ So, where a railroad corporation, in consideration of the pay- ment to them by a person of a certain sum of money per year, in quarterly instalments, and of his agreement to supply the passen- gers on one of their trains with iced water, issued season tickets to him quarterly for his passage on any of their regular trains, and permitted him to sell popped corn on all their trains, it was held that his relation to them, while travelling upon their railroad under this contract, was that of a passenger and not of a servant.^ § 203. Injury., to he such as to make master irresponsible., must he received by servant when engaged in service. — The master can only set up the relation of master and servant as a defence to a suit for hurts received by the servant when engaged in his em- ployment. If the master's negligence is in a matter extraneous to the employment, — if the hurt be received by the servant at a time when the servant is not engaged in his duties as servant, — then the servant stands in the position of a stranger.* In a case in which this question was agitated in the supreme court of the United States,^ the evidence was that the plaintiff, when standing on a wharf, was hired by the mate of a boat desiring to sail soon, and which was short of liands, to assist in lading some goods, which were near the wharf, he not having none. It may excite our sympathy, ' Com. v. Vt. & Mass. R. R. 108 but cannot create rights or duties Mass. 7. ■which have no other foundation." * Baird i'. Pcttit, 70 Pcnn. St. 4 77. 1 Yeomans v. Nav. Co. 44 Cal. 71. ^ P.-u-ket Company r. McCuc, 17 2 Ibid. Wall. 508. 183 § 203.] NEGLIGENCE : [BOOK I. been in the service of the boat generally, though he had been occasionally employed in this sort of work. It was proved that he assisted in lading the goods, an employment which continued about two hours and a half. He was then told to go to " the office," which was on the boat, and get paid. He did so, and then set off to go ashore. While crossing the gang-plank, in going ashore, the boat hands pulled the plank recklessly in and from under his feet, and he was thrown against the dock, injured, and died from the injuries. On a suit by his administratrix, for the injuries done to him, — the declaration alleging that he had been paid and discharged, and that after this, and when he was no longer in any way a servant of the owners of the boat, he was injured, — the defence was that he had remained in the service of the boat till he got completely ashore, and that the injuries having been done to him by his fellow-servants, the owners of the boat (the common master of all the servants) were not liable. There was no dispute as to the facts, unless the question as to when the relationship of master and servant ceased was a fact. This question the court left to the jury. It was ruled by the supreme court that there was in this no error. " It is insisted," said Davis, J., " on the part of the plaintiff in error, that a master is not responsible to a servant for injuries caused by the negligence or misconduct of a fellow-servant en- gaged in the same general business. Whether this general proposition be true or not, it is not necessary to determine in the state of this record. It is conceded, if the employment of McCue by the company terminated before the injury complained of was suffered, that the company is liable, and this the jury have found to be the fact. " But it is said it was the province of the court, and not the jury, to determine the point of time at which the service was ended ; that as the facts were undisputed, it was a question of law, and the court should have told the jury the relation of master and ser- vant subsisted when the accident happened. " We do not think so. One of the theories on which the suit was prosecuted was that McCue's special employment had ceased when he was injured. This theory was resisted by the defence, and the court, not taking upon itseK to determine as an absolute proposition when the employment terminated, left it to the jury to find how the fact was. This ruling, in our opinion, was cor- 184 BOOK I.] master's liability TO SERVANT. [§ 204. rect. It was for the jury to say, from the nature of the employ- ment, the manner of engaging the hands, the usual mode of trans- acting such a business, and the other circumstances of the case, whether the service had or had not ceased at the time of the ac- cident. The point was submitted fairly to the jury, with no more comments than the evidence justified. It was argued by the plaintiff in error that the employment of necessity terminated on the land, because it was there McCue was engaged to do the work, and he had the right to be provided with the proper means of reaching it from the boat. On the contrary, the defendant in error contended the special service ceased when McCue had fin- ished his work and was paid off ; that after this he was not sub- ject to the control or direction of the officers of the boat, but at liberty to stay on the boat or go off as he pleased. The jury took this latter view of the relation of the parties, and we cannot say that they did not decide correctly. At any rate, their decision on a question of fact is not subject to review in this court. The de- fence at the best was a narrow one, and in our opinion more technical than just." ^ § 204. It is not necessary, however, that the injury, in order to give the master the benefit of the exception, should have been sustained by the servant when actually engaged in work. It is enough if it be sustained by him as one of the incidents and risks of his service. Thus in a late English case,^ the evidence was that the plaintiff was employed by a railway company as a la- borer to assist in loading what is called a " pick-up train " with materials left by plate-layers and others upon the line. One of the terms of his engagement was, that he should be carried by the train from Birmingham (where he resided, and whence the train started) to the spot at which his work for the day was to be done, and be brought back to Birmingham at the end of each day. As he was returning to Birmingham, after his day's work was done, the train in which the plaintiff was, through the negli- gence of the guard who had charge of it, came into collision with another train, and the plaintiff was injured. It was ruled that, Bince the plaintiff was being carried, not as a passenger, but in the course of his contract of service, there was nothing to take the case out of the ordinary rule which exempts a master from re- 1 See B. & O. R. R. v. Trainor, 33 ^ Tunney r. The Midland Railway Md. 542. Company, L. R. 1 C. P. 29. 185 § 206.] NEGLIGENCE : [BOOK I. sponsibility for an injury to a servant through the negligence of a fellow-servant when both are acting in pursuance of a common employment. II. MASTER DOES NOT WARRANT SERVANT'S SAFETY, BUT IS DIRECTLY LIABLE FOR HIS OWN NEGLIGENCE TO SERVANT. § 205. The relationship of employer to employee does not in- volve a guarantee by employer of the employee's safety.^ Where the personal negligence of the master has directly caused the injury^ there also the master's liability to the servant is the same as it would be to one not a servant.^ m. WHAT MECHANICAL RISKS SERVANT ASSUMES. § 206. Servant generally assumes only those risks of which he has express or implied notice. — Some risks are so obvious that notice of them will be presumed. Where, however, there are special risks in an employment of which the employee is not, from the nature of the employment, cognizant, or which are not patent in the work, it is the duty of the employer specially to notify him of such risks ; and on failure of such notice, if he is hurt by ex- posure to such risks, he is entitled to recover from the employer.^ 1 Riley v. Baxendale, 6 H. & N. 443 ; shaft-holes in the different stories) en- Priestly V. Fowler, 3 M. & W. 1 ; ters into a contract in the fulfilment Wright V. N. Y. Cent. R. R. 25 N. Y. of -which workmen must come on the 562; Tinney v. B. & A. R. R. 62 Barb, premises who probably do not know 218. As will hereafter be seen, the what is usual in such places, and are doctrine of warranty has been rejected unacquainted with the danger they as to passengers carried by common are likely to incur, is he not bound carriers. A fortiori should this be either to put up some fence or safe- the rule as to servants. See infra, § guard about the hole, or if he does 209. not, to give such workmen a reasonable 2 Roberts v. Smith, 2 H. & N. 213; notice that they must take care and Ashworth v. Stanwix, 3 E. & E. 701 ; avoid the danger ? I think the law Mellors u. Shaw, 1 B. & S. 437; Paul- does impose such an obligation on meiser v. Erie R. R, Co. 34 N. J. 151; him- That view was taken in the Ardesco Oil Co. v. Gilson, 63 Penn. judgment in the court below, where it St. 146. is said (by Willes, J.) : ' With respect 8 Paterson v. Wallace, 1 Macq. to such a visitor, at least we consider 751; Williams r. Clough, 3 H. & N. it settled law that he, using reasonable 258; Keegan v. R, R. 4 Selden, 178; care on his part for his own safety, is Paulmier v. Erie R. R. 34 N. J. entitled to expect that the occupier 151; Wonderv. Bait. R. R. 32Md.411; shall on his part use reasonable care Indermaur v. Dames, Law Rep. 2 to prevent damage from unusual dan- C. P. 313. Kelly (C. B.) : " If a per- ger which he knows or ought to know; son occupying such premises (t. e. with and that when there is evidence of 186 BOOK I.] master's liability TO SERVANT. [§ 207. § 207. This limitation, indeed, is essential to the due exercise of the relation of servant and master. " A servant," so is this point well illustrated by Blackburn, J.,^ " who engages for the performance of services for compensation does, as an implied part of the contract, take upon himself, as between himself and his master, the natural risks and perils incident to the perform- ance of such services ; the presumption of law being that that com- pensation was adjusted accordingly, or, in other words, that those risks are considered in the wages ; and that where the nature of the service is such that, as a natural incident to that service, the person undertaking it must be exposed to risk of injury from the negligence of other servants of the same employer, this risk is one of the natural perils which the servant, by his contract, takes upon himself as between him and his master ; and consequently that he cannot recover against his master for an injury so caused, because, as is said by Shaw, C. J. ,2 ' He does not stand towards him in the relation of a stranger ; but is one whose rights are regulated by contract.' " If the master has, by his own personal negligence or mal- feasance, enhanced the risk to which the servant is exposed beyond those natural risks of the employment which must be presumed to have been in contemplation when the employ- ment was accepted, as, for instance, by knowingly employ- ing incompetent servants, or defective machinery, or the like, no defence founded on this principle can apply, for the servant does not, as an implied part of his contract, take upon him- neglect, the question whether such proper for the purpose, and not know- reasonable care has been taken by ing the contrary, did therefore carry notice, lighting, guarding, or other- corn up it for the defendant, but by wise, &c., is matter of fact for the reason of its being unsafe and unfit, jury.' " In Williams v. Clough (3 Hur. the plaintiff fell from it and was in- & N. 258; 27 L. J. Ex. 325), the dec- jured. Upon a demurrer to this dec- laration stated that the defendant was laration, it was held that it was suffi- possessed of a ladder unsafe and unfit cient. for use by any person carrying corn ^ Morgan v. The Vale of Neath up the same, and that the plaintiflT Railway Co. 5 Best & S. 570; 33 L. was the defendant's servant ; yet the J. Q. B. 260 ; aflirmed in the Ex. Ch. defendant, well knowing the premises, L. R. 1 Q. B. 145; 35 L. J. Q. wrongfully and deceitfully ordered the B. 23. plaintiff to carry corn up the ladder, ^ Farrell r. The Boston Railroad and the plaintiff, in obedience to the Corporation, 4 Metcalf, 49 ; also order, and believing the ladder to be printed in 3 Macqueen, H. L. Gas. 316. 187 § 208.] NEGLIGENCE : [BOOK I. self any other risks than those naturally incident to the employ- ment." § 208. Hence, whenever the employer is cognizant of a latent risk of which the employee has no knowledge or obvious means of knowledge, the employer is liable to the employee for hurt re- ceived by the latter through such risk. Thus in an English case,i the plaintiff was employed by the defendants, as a miner, to work in the coal mine. In the course of his employment he received an injury by reason of the sides of the shaft being left in an insecure condition. One of the defend- ants was the superintendent of the mine, and although he knew of the condition of the mine, continued it in such condition. The plaintiff himself was ignorant that the shaft was unsafe. Upon this, it was held, that the action was maintainable against the de- fendants.^ So, in New Jersey,^ it is laid down that a railroad company, whose road-bed is so constructed as to expose its employees to a latent danger, is liable to such of said employees as are injured thereby. If such danger is not obvious, it is the duty of such company to warn those who are to incur it, of its existence. So in Missouri, in an action by a brakeman to recover damages for injuries received while coupling cars, which was a part of his duty, the company was held liable on the ground that the ma- chinery was defective and dangerous, and so known to the com- pany, but unknown to the brakeman.^ So in Vermont, a decla- ration averred that the plaintiff was hired by the defendants to have charge of and conduct and run an engine, and that by virtue of said employment, it became the duty of defendants to furnish an engine that was well constructed and safe, &c., but that they carelessly and wrongfully furnished an insufficient engine ; that the insufficiency was unknown to the plaintiff, and, but for want of proper care and diligence, would have been known to the de- fendants ; and that while the plaintiff was careful and prudent in 1 Mellors v. Shaw & another, 1 hill Coal Co. v. Reid, 3 Macq. H. L. Best & S. 437 ; 30 L. T. Q. B. 333. Cas. 266 ; Bartonshill Coal Co. v. * See also Ashworth v. Stanwix M'Guire, Ibid. 300. & another, 30 L. T. Q. B. 183; » Paulmier v. The Erie R. R. Co. Roberts v. Smith & others, 2 Hur. 34 N. J. 151. & N. 213; 26 L. T. Ex. 319; Skipp * Gibson v. Pacific R. R. Co. 46 V. The Eastern Counties Railway Co. Mo. 163. 9 Ex. 223 ; 23 L. T. Ex. 23 ; Bartons- 188 BOOK I.] master's liability TO SERVANT. [§ 209. the use of said engine, it exploded on account of such insufficiency, and injured the plaintiff. It was ruled, the declaration disclosed a sufl&cient cause of action.^ § 209. Employee must he advised of latent defects in his place of working. — Nor is the employer merely required to keep the machinery and appurtenances of the business in good order. It is his duty to give the employee a place where he can work free from danger of which he has not notice. " An employer," it is said by Judge Hoar, " is under an implied contract with those whom he employs, to adopt and maintain suitable instruments and means with which to carry on the business in which he re- quires their services ; and this includes an obligation to provide a suitable place in which the servant, being himself in the exercise of due care, can perform his duty safely, or at least without ex- posure to dangers that do not come within the obvious scope of his employment." ^ But this must not be so extended as to as- sume a warranty by the employer of the employee's safety. The question is that of duty; and without entering on the perilous regions of implied warranty, it is sufficient for the purposes of justice to assert that it is the duty in such case of the employer to advise the employee of all defects which the employer ought to know, and that the employer if he fail in performing this duty is liable to the employee for injury the latter may thereby re- ceive.3 It is with this limitation that we are to accept the propo- sition that it is the duty of a railway or other business corpora- tion to furnish its employees with suitable and safe materials and 1 Noyes v. Smith, 28 Vt. 59, cient to support the tub, through the ' Coombs V. New Bedf. Cord. Co. negligence of defendant in not making 102 Mass, 572, citing Cayzer v. Tay- repairs. Held, that it was the duly lor, 10 Gray, 274; Seaver v. Boston of defendant to furnish a safe struc- & Maine Railroad, 14 Gray, 466 ; ture in which the duties of his ser- Snow V. Housatonic Railroad Co. 8 vants were to be performed, and it Allen, 441; Gilman v. Eastern Rail- was for the jury to determine whether road Co. 10 Allen, 233, and 13 Allen, he had negligently failed to do so. 433, Malone v. Hathaway, 2 N. Y. Sup, The plaintiff's intestate, an em- Ct, 664; Lanniug i-. N. Y, C. R. R, ployee of defendant, while in the dis- Co. 49 N. Y. 521 ; Plank t>. N. Y. C. charge of his duty, was killed by the & II. R. R. R. Co. 1 N. Y. Sup. Ct. breaking down of a floor in defend- 319; Iloffnagle r. N. Y., C. & II. R. ant's brewery, upon which stood a R. R. Co. Ibid. 346. mash-tub filled with boiling mash. » See Tenney v. B. & A. R. R. 62 The evidence tended to show that the Barb. 218; and also cited supra, floor was rotten, weak, and insufH- § 205, 189 § 210.] NEGLIGENCE [book I. structures for their use, and that it is liable for injuries sustained by them from its breach of duty in this respect.^ S 210. Employee to he advised of extraneous latent dangers. — Nor is the exception confined to defects of machinery or structure. It applies to all dangers of which the servant is not cognizant. Thus in an interesting case in California,^ the evidence wks that B., who was a carpenter, was employed by R. to go in a boat upon a submerged lot owned by him, and do certain work of his trade. While there at work, a shot was fired from a house on an adjacent lot, which wounded B., hence his action for damages. It appeared that R. knew his possession of the lot was resisted, and a resort to arras was iraminent at any moment. He did not inform B. of this fact, and the latter had no reason to believe he was going into danger when employed to do the work. It was ruled by the supreme court that R. was liable, for the reason that the concealment of facts, or the failure to state them by employer to employee, which would tend to expose any hidden and unusual danger to be encountered in the course of the employment, to a degree beyond that which the employment fairly imports, renders the employer liable for injuries resulting therefrom to the em- ployee.^ 1 Chicago & N. W. R. R. Co. v. Jackson, 55 111. 492; Chicago &N.W. R. R. Co. V. Swett, 45 111. 197 ; Chic, B. & Q. R. R. V. Gregory, 58 111. 198 ; Columb. R. R. V. Arnold, 31 Ind. 175. 2 Baxter v. Roberts, 44 Cal. 187. * The opinion of the court was de- h'vered by Wallace, C. J. : " The evi- dence upon the part of the plaintiff tended to show, and the verdict of the jury upon the issues joined must be considered to have found the fact to be, that when the defendant engaged the services of the plaintiff to work upon these premises, and took him there in the boat for the purpose of performing the labor, the defendant knew or had information such as would reasonably lead him to believe that his interfer- ence with the newly erected fence would be forcibly resisted by certain other parties who had erected it and 190 claimed to be in its possession, and who actually occupied the shanty al- ready referred to with loaded fire- arms, within shooting range of this fence, and who had announced to the defendant their purpose to resist by force any interference therewith. The verdict must be considered, too, to have found that such knowledge, be- lief, or information as the defendant possessed upon these matters was not communicated to, but was withheld by him from the plaintiff, who went to the performance of the work in ig- norance and without the apprehension or suspicion that in going he was in- curring any personal danger or haz- ard. " The learned judge of the court below stated to the jury that 'the turning point in this case is the charge, that the defendant, Roberts, employed the plaintiff, Baxter, to perform a ser- BOOK I.] master's liability to servant. [§ 211. § 211. So, also, as to defects of which the master may not have been cognizant, hut which it was his duty to have searched for and vice which he, Roberts, knew to be perilous, without giving Baxter any notice of its perilous character ; ' and instructed them as follows : " ' If Roberts knew or if he had good reason to believe that rigid or forcible resistance would be offered to him and his party by parties whom he knew or believed to be there, on the ground or in the vicinity near by, it was his duty to inform Baxter of the nature of the employment, to dis- close that knowledge so that Baxter might act understandingly and take the chances if he chose to do so. If Roberts had such knowledge and con- cealed it from the plaintiff, then he is liable. " ' If you find the persons shooting had any adverse possession or occupa- tion, whether complete or otherwise, at the time of the shooting, and the defendant knew the fact, and if you further find that the defendant had knowledge that such possession would be maintained by force if interfered with by him by the taking of the "new fence," so called, and concealed such knowledge from the plaintiff, and failed to inform him of the danger of the employment, he must be held lia- ble in damages, and you should find a verdict for the plaintiff.' " That one contracting to perform labor or render service thereby takes upon himself such risks and only such as are necessarily and usually inci- dent to the employment, is well set- tled. Nor is there any doubt that if the employer have knowledge or in- formation showing that the particular employment is from extraneous causes known to him to be hazardous or dan- gerous to a degree beyond that which it fairly imports, or is understood by the employee to be, he is bound to inform the latter of the fact or put him in possession of such information ; these general principles of law are ele- mentary and firmly established. They are usually applied to cases in which the employee has sustained injury by reason of some defect or unsoundness in the machinery or materials un- known to him, about which he is em- ployed to perform labor, and of which the employer knew, or might have known, in the exercise of ordinary care and vigilance on his part. The general principle which forbids the employer to expose the employee to unusual risks in the course of his em- ployment, and to conceal from him the fact of such danger, is not affected by *he fact that the danger known to the employer arose from the tortious or felonious purposes or designs of third persons acting in hostility to the in- terests of the employer and through agencies beyond his control. The employee is as clearly entitled to in- formation of such known danger of that character as of any other the ex- istence of which is known to the em- ployer. The employer, if he knew or was informed of a threatened danger of that character, was bound to com- municate the information to his em- ployee about to be exposed to it in the course of his employment and in igno- rance of its existence. The nature or character of the agency, or means through which the danger of injury to the employee is to be apprehended, can make no difference in the rule, for the employee is entitled in all cases to such information upon the sub- ject as the employer ni.iy possess, — and this with a view to enable him to determine for himself if, at the prof- fered compensation, he bo willing to assume the risk and incur the hazard 191 § 212.] NEGLIGENCE : [BOOK I. remedied. — The rule in this respect has been wisely expressed by Cockburn, C. J. :^ " Where a servant is employed on machinery, from the use of which danger may arise, it is the duty of the master to take due care and to use all reasonable means to guard against and prevent any defects from which increased and unnec- essary danger may occur. No doubt when a servant enters on an employment, from its nature necessarily hazardous, he accepts the service subject to the risks incidental to it ; or if he thinks proper to accept an employment on machinery defective from its con- struction, or from the want of proper repair, and with knowledge of the facts enters on the service, the master cannot be held liable for injury to the servant within the scope of the danger which both the contracting parties contemplated as incidental to the employment." But it is subsequently added that the risks neces- sarily involved in the service must not be aggravated by any omis- sion on the part of the master to keep the machinery in the condi- tion in which, from the terms of the contract or the nature of the employment, the servant had a right to expect that it would be kept? § 212. In an action by a widow against a railroad company to recover for the accidental death of an employee, it was con- tended by the plaintiff, on the trial, that the deceased fell under the train by reason of a want of proper appliances on the end of the car he was descending to uncouple the train. The court charged the jury, in one of its instructions that "it was the de- fendant's duty to provide cars with such appliances as are best calculated to insure the safety of employees ; and if a ladder on the end of the car, or a handle, as described by the witnesses, of the business ; and if the employer land. It is the master's duty to be has such information or knowledge careful that his servant is not induced and withholds it from the employee, to work under a notion that tackle or and the latter afterwards be injured machinery is staunch and secure when in consequence thereof, the employer in fact the master knows or ought to is liable to him in damages therefor. know that it is not so, and if from any In Patterson v. Wallace, 1 Macq. negligence in this respect damage H. L. Cas. 748, Lord Cran worth, C, arise, the master is responsible." said : " When a master employs a ser- ^ Clarke v. Holmes, 7 H. & N. 937, vant in a work of a dangerous char- 943. acter, he is bound to take all reasona- * Per Cockburn, C. J., 7 H. & N. ble precautions for the safety of that 944 ; Weems v. Mathieson, 4 Macq. workman. This is the law of Eng- Sc. App. Cas. 215. land no less than the law of Scot- 192 BOOK I.] master's liability TO SERVANT. [§ 213. would be a better protection to life than the structure which produced the accident^ then it would be defendant's duty to fur- nish a car with such appliances." It was ruled by the supreme court that a fair construction of the language used in the instruc- tion under the circumstances of the case did not warrant the position that by it the defendant was held to use the highest skill in procuring the very best appliances, but rather that he was bound to adopt those appliances which were reasonably best cal- culated to insure safety, as compared with those furnished.^ It was further correctly ruled that if the car in question was wanting in the appliances reasonably necessary for the safety of the em- ployees at the time of its construction, and so continued when put and used upon the road, it would not be necessary to show any further knowledge thereof on defendant's part in order to fix its liability. If, however, it was said, it at one time had these appli- ances, and they were afterward removed by accident or otherwise, then before an employee could recover on account of such defect, it would have to be shown that the company or its agents had notice thereof, or might have known it by the use of ordinary care.^ This, indeed, supposing ordinary care to be convertible with the diligentia of the bonus paterfamilias, as heretofore expressed,^ gives the correct view. A railroad or other em- ployer is not required to exercise that exquisite and exhaustive care in the constant examination and overhauling of its machinery and works which would be incompatible with the proper further- ance of business. And if in such case the employee knew of the particular defect, he is precluded from recovering on the ground above stated. The only basis, indeed, on which he can be entitled to recover, in a case such as that last cited, is, that not knowing as to the special defect through which he was injured, he had ar right to presume that the structure had the proper appliances to enable him properly to do his work. § 213. Employer not hound to adopt every possible improvement or guard. — Hence an employer is not required to change his machinery in order to apply every new invention or supposed improvement in appliance, and he may even have in use a ma- chine, or an appliance for its operation, shown to be less safe than 1 Greenleaf v. 111. Cent. R. R. 29 « Ibid.; Dewey v. Chic. & N. W. Iowa, 14. R. R. 31 Iowa, 374. « See supra, § 31-57; infra, § 635. 18 193 § 213.] NEGLIGENCE [book I. another in use, without being liable to his servants for the non- adoption of the improvement ; provided the servant be not de- ceived as to the degree of danger that he incurs.^ Nor is an employer liable to his employee for injuries received by the latter from defects which the employer could only have known by the application of a system of constant guard and inspection incom- patible with the nature of his business. Thus, in a New York case,2 where a fireman in the employ of a railroad company lost his life by reason of a switch not being placed so that the locomo- tive he was on would run upon a track other than the one on which it went, and ran off ; and it was insisted that the switch was wrongly placed, or was misplaced, and so caused the death of such fireman ; but the fixing of the switch in the way it was placed was not traced to the railroad company, or either of its employees ; it was ruled, in an action brought by tlie administra- trix of the deceased to recover damages of the company, that the judge was right in nonsuiting the plaintiff.^ 1 Wonder v. R. R. 32 Md. 410 ; Greenleaf v. R. R. 29 Iowa, 14. In- fra, § 635. 2 Tinney v. B. & A. R. R. Co. 62 Barb. 218. 8 By the court, Balcom, J. : « The head note to Snow v. Housatonic Railroad Company, 8 Allen, 441, is, that ' a railroad company may be held liable for an injury to one of its ser- vants, which is caused by a want of repair in the road-bed of the railroad.' But there is no holding, in this state, that a railroad company is bound to furnish a safe road-bed, or in default thereof is liable for an injury to one of its employees by reason of such default. Bacon, J., in delivering the opinion of the court of appeals, in Warner v. The Erie Railway Com- pany (39 N. Y. 468), referred to the case of Snow v. Housatonic Railroad Company (supra), and said: 'It is susceptible of the criticism, that the defect in the track, through which the injury was suffered, was palpable to view, and was known to, and was 194 grossly neglected by, the track -re- pairer, whose specific duty it was to remedy the defect.' But it cannot be said that that decision was approved in Warner v. The Erie Railway Com- pany (supra). Nor did this court hold, in Faulkner v. The Erie Rail- way Company (49 Barb. 324), that a railway company is bound to provide its employees with a safe road-way, or pay damages for injuries to such em- ployees by reason of defects in its road-way. And no such principle was held in Brickner v. The New York Central Railroad Company (2 Lan- sing, 506) I do not think the obligation on the defendant, if con- ceded, of providing suitable and suffi- cient servants and appliances for its protection, according to the decisions of this court in Buckner v. N. Y. Central R. R. Co. (2 Lansing, 506) and Sprong v, Boston & Albany R. R. Co. (60 Barb. 30) rendered it liable to the plaintiff on the evidence in the case. And I am of the opinion a case would not have been proved against BOOK I.] master's liability to servant. [§ 214. § 214. When an employee, after having the opportunity of becoming acquainted with the risks of his situation^ accepts them^ he cannot complain if he is subsequently injured by such exposure. — Hence, to turn specifically to the consideration of the em- ployer's liability, an employee who contracts for the performance of hazardous duties assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to ascertain.^ the defendant if the judge had re- The court say : " It was the duty of Barber, as the conductor of the train, to use ordinary and reasonable skill and diligence on his part, not simply in the management of the train, but also in supervising the due inspection of the cars, machinery, and apparatus, as to their sufficiency and safety while under his charge; and on the discovery of any defect or insufficiency, to notify the company, and to take the proper precaution to guard against any dan- ger therefrom. And if he was injured by the negligence of the company in furnishing, or continuing to use, de- fective cars and machinery, yet, if his own neglect of duty in the manao^e- ment of the train, or due inspection of the cars and machinery in his charge, contributed as a proximate cause of the injury, he could have no right of action against the company for dam- ages ; or, if he knew of the defects and insufficiency of the cars or ma- chinery, and, without taking the nec- essary and proper precaution to guard against danger, continued to use them, he took upon himself the risk, and waived his right as against the com- pany. If there was no neglect of due and ordinary care and diligence, on the part of the company, furnisliing or continuing the use of the cars and machinery, and the injury was caused by latent defects, unknown alike to the company and to the conductor, and not discoverable by duo and ordi- nary skill and diligence in the inspec- tion of the cars and machinery, it 195 ceived all the evidence he rejected, that the plaintiff offered to give. It is therefore unnecessary to determine whether the judge erred in rejecting any of the offers of evidence made by the plaintiff's counsel." 1 Owen V. N. Y. C. K. R. Co. 1 Lansing, 108 ; Greenleaf v. 111. Cent. R. R. 29 Iowa, 14 ; Vicksburg & Merid. R. R. V. Wilkins, 47 Missis. 404 ; De- witt V. Pacific R. R. 50 Mo. 302 ; Has- kin V. N. Y. C. & H. R. R. 65 Barb. 129 ; Priestly v. Fowler, 3 M. & W. 1 ; Williams v. Clough, 3 H. & N. 258; Alsop V. Yates, 2 H. & N. 258; Hay- den V. Man. Co. 8 Conn. 548 ; Fifield V. R. R. 42 N. H. 240 ; Lansing r. N. Y. Cent. R. R. 49 N. Y. 534 ; Wright V. R. R. Co. 25 N. Y. 562 ; Moss v. Johnson, 22 111. 642; Sewell v. R. R. 46 III. 99 ; Frazier v. Penn. R. R. 38 Penn. St. 104 ; Buzzell v. Man. Co. 48 Me. 121; McGlynn v. Broderick, 31 Cal. 376 ; Coombs v. New Bed. Cord. Co. 102 Mass. 586 ; Wonder v. B. & O. R. R. 32 Md. 410 ; Button v. Great West. Ct. Co. L. R. 7 Exch. 130; Holmes v. Clark, 6 H. & N. 349; and otlier English cases cited, infra. Mad River & Lake Erie R. R. Co. V. Barber, 5 Ohio St. 541, was an action by the conductor against the company, on whose trains he was running, to recover damages for in- juries received, on the ground that the injury was the result of the insuffi- ciency of the cars, and defects in the machinerv and fixtures of the train. § 216.] NEGLIGENCE ; [book I. C § 215. And 80 of employee unnecessarily exposing himself to col- lateral risks? — So the employee loses the right of action when he voluntarily and unnecessarily puts himself in a place of danger. Thus it appeared in a New York case that the plaintiff's intestate was the head brakeman on the rear train ; his proper post was on the rear end of the first car behind the engine ; it was against the rule of the company for brakemen to leave their posts, but there was no evidence that the deceased knew it ; the day being se- verely cold and there being no caboose car for the protection or comfort of the brakemen, he went forward and rode on the loco- motive for the purpose of warming himself ; while there the col- lision occurred and he was killed ; if he had remained at his post he would have been unharmed. The court held that the legal presumption is that the servant knows his master's rules ; that the servant may not, for his own convenience or comfort, abandon his post, except at his own risk ; and that the plaintiff having voluntarily exposed himself, could not recover.^ § 216. But this does not apply when employee is not competent to understand the risks. — It is otherwise, however, when the em- would be a misadventure falling among the casualties incident to the business, and for which no one could be blamed." Again : " It appears that a principal is liable in damages for an injury sus- tained by his agent or employee while in his service, only when the injury is the result of an omission of that rea- sonable and ordinary care on the part of the principal himself, in the dis- charge of his duty, which persons of ordinary prudence are presumed to exercise in that particular pursuit. Where, therefore, an agent or em- ployee of a railroad company has been injured by means of the neglect of or- dinary diligence and care on the part of the company, either in not employ- ing a sufficient number of hands to manage and safely run a train, or in employing, or continuing in the em- ployment of the company, incompe- tent and unsuitable persons, or in not keeping the road in repair, or in pro- viding the road with insufficient, de- 196 fective, and unsafe machinery and cars, in either case the company is liable. But the company would not be liable, even in such case, providing the agent or employee was himself guilty of neglect or misconduct at the time, which contributed to the injury, or providing the agent or employee, with a full knowledge of such omis- sion of duty or neglect on the part of the company, waive the matter by continuing in the service of the com- pany, without taking the precaution, or using his exertions, to have the omission or difficulty remedied. For, if the agent or employee of the com- pany waive the omission of duty on the part of the company, he takes the risk upon himself, and, if damaged, he must abide by the maxim, ' Volenti nonft injuria.'" But see Laning v. R. R. 49 N. Y. 521, qualifying this. 1 Felch V. Allen, 98 Mass. 572. 2 Sprong V. R. R. 60 Barb. 30. BOOK I.] master's liability to servant. [§ 217. ployee, from inexperience or infancy or imbecility, is incapable of estimating the danger.^ § 217. Question of employee's acquaintance with risks for jury. — Where, however, there is any doubt whether the employee was acquainted, or ought to have made himself acquainted with the risk, the question of his negligence in this respect is for the jury. And so was it ruled in Massachusetts,^ on an action brought by a servant against his master to recover for personal injuries received by him in breaking and falling through a floor in his master's shop, over which it was his duty to pass. The evi- dence was that the servant knew that the floor was decayed and that there were holes in it ; but it did not appear that he could have ascertained that the place where he broke through was dan- gerous, without examining parts of the floor not open to his in- . spection. " In order," said Chapman, C. J., " to enable the plaintiff to recover, he must prove that he has not been careless or rash. In Priestly v. Fowler, 3 M. & W. 1, it is well stated, that ' the mere relation of the master and the servant never can imply an obligation on the part of the master to take more care 1 Supra, § 88; O'Byrne v. Burn, 16 Cas. in Ses. (2d ser.) 1025; Bar- tonshill Coal Co. v. Reid, 3 Macq. 266 ; Bartonshill Coal Co. v. McGuire, 3 Macq. 300 ; Grizzle v. Frost, 3 Fost. & F. 622 ; Coombs v. New Bedf. Cord. Co. 102 Mass. 572. See apparently contra, but really decided on another point, Flower v. Penn. R. R. 69 Penn. St. 210. In Hayden v. Smithville Man. Co. 29 Conn. 548, the court said : " Every manufacturer .... may select his appliances and run his mill with old or new machinery, just as he may ride in an old or new carriage, navi- gate an old or new vessel, or occupy an old or new house, as he pleases. The employee, having knowledge of the circumstances, and entering his service for the stipulated reward, can- not complain of the peculiar tastes and habits of his employer, nor sue him for damages sustained in and resulting from that peculiar service An employee, having knowledge, cannot claim indemnity except under particu- lar circumstances. He is not secretly or involuntarily exposed, and likewise is paid for the exact position and hazard he assumes; and so he may terminate his employment, when, from unforeseen perils, he finds his reward inadequate or unsatisfactory. We need hardly remark that as this dis- tinction rests upon knowledge in the employee, it is quite obvious that he must have mind sufficient to acquire the necessary knowledge.'^ The plaintiff in this case, being a child only ten years old, having been injured by being caught in exposed machinery, it was held to be a question for the jury whether he had a sufficiiMit under- standing of the hazards of the eni|)loy- mcnt to bring him within the general rule. 2 Iluddli'ston I'. Lowell Machine Shop, 106 Mass. 282. 197 ) \ § 218.] NEGLIGENCE : [BOOK 1. of the servant than he may reasonably be expected to do of him- self. He is, no doubt, bound to provide for the safety of his ser- vant in the course of his employment, to the best of his judgment, information, and belief. The servant is not bound to risk his safety in the service of his master, and may, if he thinks fit, de- cline any service in which he reasonably apprehends injury to himself ; and in most of the cases in which damage may be in- curred if not in all, he is just as likely to be acquainted with the probability and extent of it as the master.' If he has such knowledge, he is negligent in disregarding it, and takes the risk. It has been decided that if there be a hole in a floor over which he has to pass in the dark, and it is not lighted or guarded, and he knows its condition but chooses to pass in the dark, he does so at his own risk.^ There are many employments that are known to be dangerous, and sometimes business is carried on in build- ings or other places that are obviously unsafe, or with machinery and implements of the same character. In such cases, the work- man takes the risks which he knows to be incident to the place and to the business." Whether, however, the plaintiff knew of the risk, or ought to have known of it, is a question, it was ruled, for the jury, supposing the evidence to be conflicting. Of the legal proposition thus reached there can be no doubt ; though it may be seriously questioned whether the evidence in the particu- lar case before the court could be said to present such a conflict, and whether on the face of the case it did not appear that the servant had such notice of the defects as to put him on his guard, and to transfer to him the risk of treading on the floor without further inquiry. § 218. So it has been ruled in the same state that the fact that, very near where an employee is working in a manufactory, machinery not connected with his work is in motion, the danger- ous nature of which is visible and constant, is not conclusive that he has taken on himself the risk of being injured by it, in modifi- cation of the implied contract of his employer to provide for him a reasonably safe place in which to do his work ; and if, through inattention to the danger, he meets with such an injury while doing his work, and sues his employer therefor, the questions whether he displayed due care on his own part, and whether there was a neglect of his employer to give him suitable notice 1 Seymour v. Maddox, 16 Q. B. 326. 198 BOOK I.] MASTER S LIABILITY TO SERVANT. [§ 219. of the danger, are for the jury. Under such circumstances, his youth and inexperience, and the directions previously given to him by agents of the employer about the manner of doing the work, are to be considered upon the question of due notice.^ § 219. If employee is in haste called upon to execute an order requiring prompt attention, he is not to he presumed to necessarily recollect the defect so as to avoid it. — A prompt and faithful em- ployee, suddenly called upon by a superior to do a particular act requiring immediate attention, cannot be supposed to remem- ber at the moment the defect that would make his doing the act dangerous ; and even should he remember it, he may suppose, from the fact that he is ordered to do the particular act, that the defect, which would have interfered with the execution of such an order, is remedied. Although he may be proved to have previously known of the existence of the defect, yet it can- not, under such circumstances, be justly inferred that this knowl- edge was present to him at this particular time. " Under such circumstances," well reasons Judge Wright in a case decided in Iowa, in 1870, " compelled as he necessarily would be to act ^ Coombs V. New Bedf. Cord. Co. 102 Mass. 572. " The plaintiff," said Hoar, J., " re- ceived the injury of which he com- plains from his hand being caught in the cogs of a machine, which was run- ning within a foot or two of the place where he was set to tend another sim- ilar machine. The work in which he was employed would naturally occa- sion him to extend his arms and hands in such a manner as to bring his fingers very near to the cogs. But the cogs were in sight, and the danger of getting the fingers into them mani- fest ; and it is argued on behalf of the defendants : 1. That the facts show that the plaintiff did not use due care ; and 2. That they were under no legal obligation to fence or inclose the dan- gerous machinery, or to protect the plaintiff against a peril which, being visible and permanent, came within the risks which he assumed by enter- ing upon the employment. " Wliether it was possible for the plaintiff to have met with the accident from inadvertence or want of ac- quaintance with the danger of his position, without being chargeable with a want of reasonable care, we think is a question to be submitted to the jury. The facts that he saw or might have seen the machinery in motion, and might have known that it was dangerous to expose himself to be caught in it, are considerations which should be regarded on one side. On the other, some allowance should be made for his youth, his inexperience in the business, and for the reliance which he might have placed upon the direction of his employers. It has been held in other cases that previous knowledge of a danger is not conclu- sive evidence of negligence in failing to avoid it. Keed v. Norfhfield, 13 Pick. 94 ; Whittaker v. West Boyl- ston, 97 Mass. 273." Sec further su- pra, § 216. 199 §221.] NEGLIGENCE: [BOOK I. with promptness and dispatch, it would be most unreasonable to demand of him the thought, care, and scrutiny which might be exacted where there is more time for observation and deliberation. Thus if a ladder is usually found upon such cars, in the haste nec- essarily attendant upon uncoupling cars and stopping the train, he is not bound to deliberate and settle in his mind that a like means of ascending the car was on this one, though he knew by prior observation that it was wanting." ^ § 220. Whether^ when upon employer being notified of defect in machinery^ he undertakes to remedy it, hut fails to do so, the em- ployee may recover, though he has full knowledge of the defect. — The English rule in this respect is, that where machinery is re- quired by statute to be fenced, and the protection is removed by decay or otherwise, the owner, having notice of the defect, is re- sponsible to a servant, who, having entered into the employ when the machinery was fenced, continues in the service in the reason- able expectation of the defect being repaired, and who, without negligence on his part, sustains a personal injury .2 In a case of this class. Pollock, C. B., said : " We think that in a case where machinery is by act of parliament required to be protected so as to guard the persons working in the mill from danger, and a ser- vant continues in the employment, entering upon it when the machinery is in a state of safety, and if (in consequence of dan- ger accruing from the protection being decayed or withdrawn) the servant complains of the want of protection, and it is prom- ised to him from time to time that it shall be restored, we think during that period a master must be considered to take on him- self the risk ; and, therefore, if any accident occurs to the servant during that period, the master is responsible for it."^ § 221. In this country the exception has been still further ex- tended, and we have gone so far as to hold that a servant does not, by remaining in his master's employ, with knowledge of de- fects in machinery he is obliged to use, assume the risks attendant on the use of such machinery, if he has notified the employer of such defects, or protested against them, in such a way as to in- 1 Greenleaf v. El. Cent. R. R. 29 Law Times, March, 1874, 121. See Iowa, 47; and see, to same effect, supra, § 94. Snow V. Housatonic Co. 8 Allen, 441 ; 2 Holmes v. Clarke, 6 Hur. & N. Reed v. Northfield, 13 Pick. 98 ; Un. 349. Pac. R. R. V. Fort, 2 Dillon, 259 ; » See also Couch v. Steel, 3 Ell. & 5. C. in Sup. Ct. of the U. S., Am. Bla. 402; 23 L. J. Q. B. 121. 200 BOOK I.] master's liability TO SERVANT. [§ 222. duce a confidence that they will be remedied.^ The only ground on which this exception can be justified is, that in the ordinary course of events the employee, supposing the employer Avould right matters, would remain in the employer's service ; and that it would be reasonable to expect such continuance.^ But this reasoning does not apply to cases where the employee sees that the defect has not been remedied, and yet continues to expose himself to it. In such case, on the principles heretofore an- nounced,^ the employee's liability in this form of action ceases. He may be liable for breach of promise ; but the causal connec- tion between his negligence and the injury is broken by the in- termediate voluntary assumption of the risk by the employee. § 222. Negligence of middle-man in selection of materials^ ^c, is negligence of employer^ so far as concerns subordinate employee. — Where the principal selects a superintendent to manage the concern, there the superintendent or middle-man represents the principal, and his negligence in this respect is the principal's neg- ligence.^ " If a workman, or servant," says Wagner, J., when discussing this point in Missouri,^ " is to work in conjunction Avith others, he must know that the carelessness of one of his fellow- servants may be productive of injury to himself, and he must know that neither care or diligence by the master can prevent the want of due care and caution on the part of his fellow-servants. The servant on entering upon the employment is supposed to know and assume this risk. But does he risk the carelessness and neg- ligence of those placed over him, in the selection of suitable ma- terials, machinery, and the appliances incident to the employment ? He acts in subordination. His simple duty is obedience. He has no means or opportunity of knowing whether the articles fur- nished are safe, and has to rely on the judgment of his superiors. If the master in person superintends the work, then there is no controversy or dispute as to where the responsibility belongs. If the master deputes the superintending control of the work, with the power to employ and discharge hands and purchase and re- move materials, to an agent, then the master acts througli the 1 Kroy V. Chic. R. I. & P. R. R. 32 * See Laninrr v. N. Y. Cent. R. R. Iowa, 357; Greenleaf r. Dubuque & 49 N. Y. 521 ; Flike v. Bost. & A. R. S. City R. R. 33 Iowa, 62; Snow v. R. 53 N. Y. 549; and observations Housatonic R. R. 8 Allen, 441. made infra, 229,241. 2 See supra, § 74. * Brothers v. Carter, 52 Mo. 875. ' See supra, § 130. 201 § 223.] NEGLIGENCE : [BOOK I. agent and the agent becomes the master. The duties are the duties of the master, and he cannot evade the responsibilities which are incident and cling to them by their delegation to an- other. When the master appoints some other person to perform these duties, then the appointee represents the master, and though in their performance he may be and is a servant to the master, yet in those respects he is not a co-servant, a co-laborer, a co- employee, in the common acceptation of those terms. He is an agent, and stands instead of the principal, and is not a fellow- servant within the meaning of the rule as applied to laborers and workmen. His acts are the acts of a master and superior, and the servants are bound to use whatever materials, machinery, ap- paratus, or appliances he may see fit to provide for them. This question was carefully considered in the case of Harper v. Indian- apolis & St. Louis R. R. Co.,1 and decided in accordance with the doctrines above announced." But to make the employer liable for the middle-man's negligence in this respect, the employer must withdraw from the management of the concern, and constitute the middle-man its sole superintendent. Otherwise the middle- man is but one of several servants, each of whom takes the risk of the other's negligence.^ § 223. Notice to middle-man not necessarily notice to employer. The employer must have known or have been in a position where he ought to have known of the defect. — Several rulings are reported in which it is held that the employer is not chargeable with his superintendent's knowledge of a defect. Thus in a New York case, the plaintiff, who was an employee in a mill, which was owned by the defendant, and operated by his superintendent, a person of recognized competency, was injured in using an ele- vator. This elevator was originally constructed and designed for the carriage of materials and not of persons, and was unfit and unsafe for persons, but the employees, including the plaintiff, had contracted the habit of riding on it ; this habit was known to the superintendent and agent, but not to the defendant, and the lat- ter did not even know there was an elevator in the mill ; the elevator was originally safe for the purpose for which it was de- signed, and for aught that appeared was safe until three \yeeks before the accident, but by constant use the supporting chain had worn thin and weak, and three weeks before the accident it liad 1 47 Mo. 567. 3 See infra, § 229. 202 BOOK I.] master's liability TO SERVANT. [§ 223. broken with a load of goods ; this was known to the superintend- ent, but not communicated or known to the defendant ; on these facts the referee held that the defendant was liable, on the ground that the knowledge of the superintendent and agent was imput- able to him ; but he did not find that from the circumstances the defendant ought in fact to have acquired that knowledge. This holding was reversed on appeal, the court deciding that the pur- pose of the elevator must be deemed to be that for which it is cus- tomarily used, and that the purpose of its original construction did not control ; but that the defendant was not liable unless he had or ought to have had personal knowledge of the defect, and that his superintendent's knowledge was not in such case imputa- ble to him.^ That such knowledge of a superintendent is not to be generally imputed to the master, has been not unfrequently ruled,^ it being argued that such is necessarily the law in cases where the employer leaves the whole control of the business to the manager, who has absolute power of rectification, and who is pru- dently chosen and retained. But in ordinary cases of business, it is hard to deny that the employer is in a position in which he ought to acquaint himself with such defects. And as to corpora- tions, the case is still stronger. A corporation can only see through its agents, and what they see, if they are charged with this special branch of oversight, it must see.^ 1 Corcoran v. Holbrook, N. Y. Gen. v. Vt. Cent. R. R. 32 Vt. 4 73). The T. R., Alb. Law J., Jan. 31, 1874. following thoughtful observations are 2 Wigmore v. Jay, 5 Exch. 354 ; from the article already referred to Searle u. Lindsay, 11 C. B. N. S. 429; in the Albany Law Journal : — Gallagher v. Piper, 16 C. B. N. S. " As the law now stands, therefore, 669 ; Feltham v. England, 7 Best & we should incline to add a concluding Smith, 676; Wilson v. Merry, L. R. 1 rule, as follows: 10. In the case of a Scotch App. 326 ; Hard v. Vt. & Can. delegated authority to engage and R. R. Co. 32 Vt. 473 ; Albro v. Aga- discharge workmen, and select mate- warn Canal Co. 6 Cush. 75. These rial appliances for the prosecution of cases I take from the article just cited the work, there is no difference be- from the Albany Law Journal. Ford- tween the liability of a corporation ham r. R. R. infra, § 229. and that of an individual ; the delega- 2 The position in the text, I must tion does not discharge the liability ; admit, after being adopted by the su- and in respect to defects sul)seq>iently preme court of New York (Warner v. arising in material appliances origin- Erie R. R. 49 Barb. 558), was over- ally sufficient, there is the same ne- ruled by the court of appeals of the cessity, in order to fix Hal)ility on the same state {S. C. 39 N. Y. 468), and master for injuries arising to the ser- is disapproved of in Vermont (Hard vant therefrom, to show personal no- 208 § 224.] NEGLIGENCE [book I. IV. WHAT NEGLIGENCE OF FELLOW-SERVANTS A SERVANT ASSUMES. § 224. Master not liable for negligence of fellow-servants who have not been negligently appointed or retained. — The master is not liable to his servants for injuries to them produced ^y the negligence of a fellow-servant, engaged generally in the same business, provided there be no negligence in the appointment of such negligent servant, or in the retention of such servant after notice of his incompetency,^ tice, knowledge, or culpable ignorance of the defects, to or on the part of a corporation, as in the case of an indi- vidual ; notice to, or knowledge, or cul- pable ignorance on the part of a man- aging agent will not charge the master in either case. We must say, how- ever, that there seems to be difficulty in reconciling the decisions in the cases of Warner and Laning. As a corporation can act only through agents, we cannot see why, if it is liable for the neglect of its hiring agent to dismiss an incompetent ser- vant, after notice of his incompetency, it is not likewise liable for the neglect of its inspecting or constructing agent to repair a decayed structure or a deteriorated machine, after notice of such defect, or in culpable ignorance of it. We think there is an increas- ing disposition to extend the doctrine of constructive presence and knowl- edge to corporations : a corporation cannot be excused from liability, sim- ply because they must always act by servants ; to hold otherwise, say the court in Oilman v. Eastern R. R. Co. (10 Allen, 239), 'would be to exempt them from liability altogether.' And the fact that they can only thus act, would seem to excuse showins knowl- edge m or bringing notice to any one but their managing agents. One of the most prominent examples of the tendency spoken of is Lalor v. Chi- cago, &c. R. R. Co. (52 111. 401) A. 204 D. 1869. In this case a common la- borer, engaged to load and unload freight cars, was ordered by a depot superintendent to couple freight cars, and going between them for that pur- pose, was crushed by the careless man- agement of the engine. On demurrer, the court held that the company was constructively present by its officer, and liable for the damage, on the ground that the deceased was thus exposed to a peril out of the line of the business which he had contracted to perform." See also infra, § 229. 1 Skipp V. Eastern Co. R. R. 9 Exch. 223; Murray v. Currie, L. R. 6 C. P. 24; Albro v. Agawam C. C. 6 Cush. 75 ; Wright v. N. Y. Cent. R. R. 25 N. Y. 562; Laning v. N. Y. Cent. R. R. 49 N. Y. 528; Priestly V. Fowler, 3 M. & W. 1 ; Hutchinson V. Y., N. & B. R. C. 5 W., H. & G. 343 ; Wonder v. B. & O. R. R. 32 Md. 410; Indiana, &c. R. R. v. Love, 10 Ind. 29 ; Columbus R. R. v. Arnold, 31 Ind. 175; Pittsburg v. Ruby, 38 Ind. 294 ; Yeomans v. C. C. S. Nav. Co. 44 Cal. 71 ; Davis v. Detroit, &c. Co. 20 Mich. 105; Harper v. Indian. & St. Louis R. R. 47 Mo. 567 ; Devitt V. Pacific R. R. 50 Mo. 302 ; Brothers V. Carter, 52 Mo. 372; Un. Pac. R. R. V. Young, 8 Kans. 658; Sizer i'. Syracuse R. R. 7 Lansing, 67; Plank V. N. Y. C. & H. R. R. 1 N. Y. Supr. Ct. 319; Hoffnagle v. N. Y. C. & H. R. R. 1 N. Y. Supr. Ct. 346. BOOK I.] MASTER S LIABILITY TO SERVANT. [§ 225. § 225. The several constituents of this exception will be now considered as follows : — . . . . " The leading principles of law upon which the rights of the par- ties depend are simple and well de- fined, and have been frequently stated in judicial decisions. Thus it is well settled that one who enters the ser- vice of another takes upon himself the ordinary risks of the employment in which he engages, including the neg- ligent acts of his fellow-workmen in the course of the employment." Hoar, J., in Coombs v. New Bed. Cord. Co. 102 Mass. 572, citing Farwell v. Bos- ton & Worcester Railroad Co. 4 Met. 49; King v. Boston & Worcester Rail- road Co. 9 Cush. 112; Gillshannon v. Stony Brook Railroad Co. 10 Cush. 228. " The liability of the master to a third person, a stranger to the agency, for the negligence of his servant, is an exception to the rule that one is liable only for his own torts. Shall the exception be extended to embrace cases where the person injured, in- stead of being a stranger to the agency, is himself a part of it ; or, as it is usually expressed, to the case of a servant injured by a fellow-ser- vant? Now, whatever reasons can be given for making an exception to the general rule, by holding the mas- ter liable for the negligence of his servant towards a third person (and various reasons of greater or less weight can be given), many of them fail entirely, or are more or less weak- ened, when applied to the case of ser- vants who are jointly engaged in the same undertaking. But the reason which appears to have had the most influence in preventing the extension of the exception to the case of so- called fellow-servants is that the ser- vant, who is himself engaged in the employment, working in unison with other servants, and knowing what is taking place, is generally in a bet- ter position to guard himself against things passing around him, and in his sight, than his master, who may be at a distance, can be to protect him. It is now the generally received law that a master is not liable to one ser- vant for the negligence of another servant; provided that at the time of the original employment the servant was a fit servant; and provided that, if the servant has become subsequently unfit, the master did not know, and might not have known, of his subse- quent unfitness. Hutchinson v. New- castle, &c. Railw. Co. 5 Exch. 313; Morgan v. Vale of Neath Railw. Co. 5 B. & S. 570; L. R. 1 Q. B. 149; Feltham v. England, L. R. 2 Q. B. 33 ; Gilman v. Eastern R. R. Co. 10 Allen (Mass.), 233 ; Beaulieu v. Portland Co. 48 Me. 291 ; Weger v. Pennsyl- vania R. R. Co. 55 Penn. St. 460. The rule as to the hiring or continued employing of unfit servants is the same as the furnishing or employment of unfit machines. Harper v. Indian- apolis, &c. R. R. Co. 47 Mo. 567; Davis V. Detroit, &c. R. R. Co. 20 Mich. 105. A man, in relation to labor, is a machine." Story on Agency, § 453 a, note by Green. In Davis v. Detroit & Mil. R. R. Co. 20 Mich. 105, it was said by Cooler, J.: — . ..." In the case of The Indian- apolis & Cincinnati R. R. Co. r. Love, 10 Ind. 556, the court say that where both parties have equal knowledge, and the servant continues in the ser- vice, the true rule of decision is, that each party takes the risk, unless the employer undertakes to give special directions. The same rule was recog- nized in the case of Thayer v. St. Louis, Alton & T. H. R. R. Co. 22 205 § 225.] NEGLIGENCE : [book I. 1. Wlio are " servants " precluded from recovery under this exception. Ind. 29, and in numerous cases which we need not quote from here. The case of Skipp v. Eastern Counties R. Co. 9 Exch. 223 ; GrifTiths v. Gidlow, 3 H, & Nor. 654 ; Williams v. Clough, Ibid. 258; Assop v. Yates, 2 H. & Nor. 768 ; Hayden v. Smithville Manuf. Co. 29 Conn. 558, and McMillan v. Saratoga & Wash. R. R. Co. 20 Barb. part of his fellow-servant ; and he must be supposed to have contracted on the terms, that as between himself and his master he would run this risk." 1 In Tebbutt v. Bristol & Exeter Railway Co., L. R. 6 Q. B. 76, Han- nen, J. says : " In such case the maxim ' Respondeat superior,' as a 449, are particularly referred to." .... general rule, applies. The excep- " Tliere is no difference between liability to a stranger and to a servant for a man's own negligence or want of skill; though a master is not re- sponsible for an injury to a servant by the negligence of a fellow-servant, un- less he has failed in ordinary care in the employment of the culpable party. Ryan v. The Cumberland "Valley Rail- road Co. 11 Harris, 384; Frazier v. The Pennsylvania Railroad Co. 2 WMght, 104 ; Hunt v. The Same, 1 P. F. Smith, 475; Caldwell v. Brown, 3 Ibid." .... Sharswood, J., in Ardes Co. Oil Co. V. Gilson, 63 Pa. St. 150. In a leading English case the reason given is that the fellow-ser- vants concerned " have both engaged in a common service, the duties of which impose a certain risk on each of them ; and, in case of negligence on the part of the other, the party injured knows that the negligence is that of his fellow-servant and not of his master. He knew when he engaged in the service that he was exposed to the risk of injury, not only from his own want of skill or care, but also from the want of it on the tion is where the injured party stood at the time of the injury in such a relation to the master that it may reasonably be presumed he agreed to undertake the risk arising from the negligence of those whom the master employed." The distinction is thus put by Lord Cranworth, in Bartons- hill Coal Company v. Reid : ^ "So far as persons external to the master and his servants are concerned, the master is to be considered as responsible for every one of those servants, .... but the case is different where the question arises within the circle of the master and his servants." And again : " The principle which makes the master lia- ble to complaints made ab extra does not make him liable to complaints arising intra, the whole body consisting of himself and his workmen." Upon this ground the master is held irre- sponsible for injuries done by one ser- vant to another in the course of their common employment, or to a person who, by volunteering to assist a ser- vant, puts himself in the position of the latter : Potter v. Faulkner ; ^ or to a guest in his house, who becomes 1 Judgm. 5 Exch. 351; Tunney v. Mid- land R. C, L. E. 1 C. P. 291. '< A servant when he engages to serve a master under- takes as between himself and his master to run all the ordinary risks of the service, in- cluding the risk of negligence upon the part of a fellow-servant when he is acting in the 206 discharge of his duty as servant of him who is the common master of both." Per Erie, C. J., L. R. 1 C. P. 296. See also Murphy V. Smith, 19 C. B. N. S. 361; Gallagher v. Piper, 16 C. B. N. S. 669. 2 3 Macq. at pp. 276, 277. 3 1 B. & S. 800; 31 L. J. (Q. B.) 30. BOOK I.] master's liability to servant. [§ 225. 2. What are the class of injuries to which this exception relates. for the time being a member of his family. Southcote v. Stanley. ^ The plaintiff stood in no such relation. He was allowed the use of the defend- ants' platform in the same manner and upon the same conditions as if he had been one of their passengers, and is as " external " to the defendants and their servants as he would have been if the accident had happened to him in the public street. The rule will be discharged." " When the workman," says Lord Cranworth (Bartonshill Coal Co. v. Reid, 3 Macq. So. App. 266), " con- tracts to do work of any particular sort, he knows, or ought to know, to what risk he is exposing himself; he knows, if such be the nature of the risk, that want of care on the part of a fellow-workman may be injurious or fatal to him, and that against such want of care his employer cannot by pos- sibility protect him. If such want of care should occur, and evil is the result, he cannot say that he does not know whether the master or the servant was to blame. He knows that the blame was wholly that of the servant. He cannot say the master need not have engaged in the work at all, for he was party to its being undertaken. " Principle, therefore, seems to me to be opposed to the doctrine, that the responsibility of a master for the ill consequences of his servant's care- lessness is applicable to the demand made by a fellow-workman in respect of evil resulting from the carelessness of a fellow-workman when engaged in a common work." ^ Lord Cairns strikes at the reason of the rule when he tells us, that the mas- ter is not, and cannot be, liable to his servant unless there be negligence on the part of the master in that which he, the master, has contracted or under- taken with his servant to do. The master has not contracted or under- taken to execute in person the work connected with his business. But the master, in the event of his not person- ally superintending and directing the work, is to select proper and competent persons to do so, and to furnish them with adequate materials and resources for the work. Wilson v. Merry, L. R. 1 Sc. App. Cas. 332. See, however, qualifications of this given infra, § 229. In the Bartonshill colliery cases (3 Macq. 266-300), the plaintiflFs claimed to recover damages sustained in a fatal casualty in the shaft of a coal-mine, caused by the negligence of the engine-man, who omitted to stop the engine when the cage containing workmen arrived at the pit-head. The engine-man had an excellent character for carefulness and steadi- ness. The Lord President, in the trial, directed the jury, that " if they were satisfied on the evidence that the injury was caused by culpable negligence and fault on the part of the engine-man in the management of 1 1 H. & N. 247; 25 L. J. (Ex.) 339. 2 3 Macq. H. L. Cas. 282-284. See also Priestley v. Fowler, 3 M. & W. 1 ; Hutchin- son V. York, Newcastle & Berwick K. C. 6 Exch. 349 ; Wigmore v. Jay, Ibid. 354 ; Skipp V. Eastern Counties R. C. 9 Exch. 223; Couch v. Steel, 3 E. & B. 402; I'ater- son V. Wallace, 1 Macq. Sc. App. Cas. 748; Hall V. Johnson, 3 H. & C. 589; Senior r. Ward, 1 E. & E. 385-391; Riley v. Baxen- dale, 6 U. & N. 445; Brydcn r. Stewart, 2 Ibid, 30; Bartonshill Coal Co. v. McGuire, 3 Macq. Sc. App. Cas. 300. 207 § 227.] NEGLIGENCE : [BOOK I. 3. Who are the " fellow-servants " whose negligence are thus considered part of the common risk. 4. What is the negligence in appointment and retention which precludes the master from taking advantage of this exception. 5. Whether the master is liable for the negligence of a middle- man in appointment of improper servants. 6. Whether the master's liability is revived by his promise, upon notice of the negligence of an improper servant, to remove such servant. § 226. 1. Who are " servants " precluded from recover^/ under this exception. — As this point has been already generally dis- cussed,^ it is suiBcient to say that to prejudice a person injured by the negligence of another, under this limitation, the relation of master and servant must be affirmatively made out. § 227. 2. What are the injuries to which the exception relates. — Not merely positive acts of misfeasances, but nonfeasances, are within the scope of the exception. Neglect on the part of a fellow-servant to search for and correct a latent defect is a risk which the other servants of the same concern engage to assume as much as they do overt acts of negligence. Thus in an English case,^ the deceased, G. W., was a railway the machinery, the defenders were, at is presumed to have undertaken to law, answerable." This ruling was risk, the rule as applicable to cases found erroneous, on the ground that of gross or wilful neglect on the part damage by the negligence of the en- of another servant, by whose want of gine-man, a fellow-servant in a com- fidelity or criminal fault harm results mon employment with the pursuer to his fellow employee in the discharge (plaintiff), was one of the risks of the of his duty, was rejected as inconsist- service in which he had voluntarily ent with principle, analogy, and pub- engaged for hire. Lord Brougham, lie policy!" Hardin, J. — Louisville on appeal, declared that the liability & N. R. R. v. Filbern, 6 Bush, 579; depended on the question, " whether relying on Louisville & N. R. R. v. the negligence was that of a fellow- Collins, 2 Duvall, 114; and Louisville workman engaged with the plaintiff & N. R. R. v. Robinson, 4 Bush, 507. upon the same work," or, to use a But such wilful neglect " must involve word which has been much employed either an intentional wrong, or such in these arguments, the negligence of a reckless disregard of security and a collahorateur. right as to imply bad faith." Louis- It is ruled in Kentucky, " that while ville & N. R. R. v. Filbern, ut supra. exemption is conceded as to the com- ^ Supra, § 201. mon hazards incident to the accept- ^ Waller v. The South Eastern ance of employment in connection Railway Co. 2 Hur. & C. 102 ; 32 L. with others, and which the employee T. Ex. 205. 208 BOOK I.] master's liability TO SERVANT. [§ 228. guard, employed by the defendants at weekly wages, and it was his duty as such guard to travel with and in the passenger trains worked by the defendants on the North Kent Railway, a line be- longing to and worked b\'- the defendants under certain powers. In the course of such duty, while he was travelling in a passenger train of the defendants, the train ran off the line and overturned the break-van in which he was, whereby he was killed. The ac- cident happened through the decayed condition of the treenails which fastened the chains to the sleepers on the railway. It was the duty of the ganger of the plate-layers, a servant of the de- fendants, to see and keep in proper repair and condition the per- manent way by renewing such treenails as were decayed. The ganger was a person of competent skill, and through his neglect of duty the road became unsafe. W. was killed by the train running off the line through the decayed condition of the tree- nails ; none of the directors, officers, or servants of the company knew of such defects, but the ganger ought to have known it, and it was negligence in him not to have known it. Upon this, it was held, that the defendants were not liable, the deceased and the ganger being servants engaged in one common purpose. In his judgment. Pollock, C. B., said : " I think if we look at the observations of Lord Chelmsford,^ and consider what are the dan- gers that any servant engages to encounter, and look at the prob- able dangers attendant upon entering into the engagement in question, there can be no doubt that the conductor of a railway train must anticipate, among the sources of probable danger aris- ing on the journey, the neglect of a servant to oil the wheels of the carriages, the neglect of one man to properly adjust the points, and the neglect of another man to take care that the rails are properly bolted and fastened and secured, so as to make the journey safe. Under these circumstances, I am of opinion that the special case ought to be decided in favor of the defendants, the facts falling entirely within the case of Priestley v. Fowler, which is not opposed, as it strikes me, to any case or to any au- thority which has arisen out of that, the first case on the sub- ject." 2 § 228. Should, however, the defendant be aware of the de- fect (which in the suit last cited was not the case), he must 1 Bartonshill Coal Co. v. Maguire, ^ Waller v. S. E. R. R. ut supra. 3 Macq. H. L. Cas. 303. 1, > 209 § 229.] NEGLIGENCE : [BOOK I. notify his employees, and if he fail to do so he becomes liable for hurt sustained by them in -consequence of this failure. It is on this ground that we can explain a New Jersey case,^ where it appeared that the track over a trestle-work was not capable of supporting an engine, and the engineer in charge had orders not to put his engine thereon, which orders he disobeyed, and the intestate of the plaintiff, who was a fireman on said en- gine, and who was unaware of said orders or of the danger, was thereby killed, the trestle-work giving way. It was ruled by the court that the plaintiff was entitled to recover ; and on the single ground that the defendant should have notified the plaintiff of the defect, this ruling is consistent with the law already expressed. ^ 3. Who are '•'• felloio- servants " whose negligence is thus part of the common risk. § 229. Need not be on a parity of service. — It makes no dif- ference, in the application of the exception, that the employee receiving the injury is inferior in grade to the one by whose neg- ligence the injury was caused.^ " A master," says Folger, J.,^ " is not liable to those in his em- ploy for injuries resulting from the negligence, carelessness, or misconduct of a fellow-servant engaged in the same general busi- ^ Paulmier v. Erie R. R. 34 N. J. though it may be in different grades 151. and departments of it. Wonder v. 2 See supra, § 209. Baltimore R. R. Co. 32 Md.411; Wil- 8 Flike V. Bost. & A. R. R. 53 N. son v. Merry, L. R. 1 H. L. S. & D. Y. 549; Columbus, &c. R. R. v. Ar- 326; Columbus & Indianapolis, &e. R. nold, 31 Ind. 174; overruling Fitz- R. Co. v. Arnold, 31 Ind. 174; War- patrick v. N. A. & S. R. R. 7 Ind. 436 ; ner v. Erie Railw. Co. 39 N. Y. 470; Albro V. Agawam C. C 6 Cush. 75; Hard v. Vermont & Canada R. R. Co. Feltham i;. England, Law Rep. 2 Q. 32 Vt. 480; Beaulieu v. Portland Co. B. 33; Wonder v. B. & O. R. R. 32 48 Me. 291; Wiggett v. Fox, 11 Exch. Md. 460; Morgan t?. Vale of Neath 832; Searle v. Lindsey, 11 C.B.N. R. R., Law Rep. 1 Q. B. 149 ; 5 B. & S. 429; Morgan v. Vale of Neath R. S. 570, 736; Un. Pac. R. R. i'. Fort, 2 R. Co. L. R. 1 Q. B. 149; Weger v. Dill. C. C. 259; S. C. in Sup. Ct. of Pennsylvania R. R. Co. 55 Penn. St. U. S., Am. Law T. for Mch. 1874. 460; Harper v. Indianapolis, &c. R. "The rule now apparently estab- R. Co. 47 Mo. 567. But this rule lished in England, and generally, per- must be considered as subject to fu- haps, in this country, is, that the term ture modifications and exceptions." fellow-servant includes all who serve Story's Agency, § 453 e, note by the same master, work under the same Green. control, derive authority and compen- * Laning v. N. Y. Cent. R. R. 49 sation from the same source, and are N. Y. 628. engaged in the same general business, 210 BOOK I.] master's liability TO SERVANT. [§ 229. ness. Nor is the liability of the master enlarged when the servant who has sustained an injury is of a grade of the service inferior to that of the servant or agent whose negligence, carelessness, or mis- conduct has caused the injury, if the services of each, in his par- ticular labor, are directed to the same general end. And though the inferior in grade is subject to the control and directions of the superior whose act or omission has caused the injury, the rule is the same. Nor is it necessary, to exempt the master from lia- bility, that the sufferer and the one who causes the injury should be at the time engaged in the same particular work. If they are in the employment of the same master, engaged in the same com- mon work, and performing duties and services for the same general purposes, the master is not liable. These rules seem to have been laid down with care after due consideration, to be sustained by reason, to have been assented to by more than a bare ma- jority of this court, in at least two instances, at some interval of time, and should be adhered to in any case the facts of which bring it within the purview of them.^ The cases cited hold, further, that the master is liable to a servant for his (the mas- ter's) own personal negligence, or want of care and prudence, and for his own personal act or misconduct occasioning injury and damage to the servant. And such negligence, want of care and prudence, act or misconduct, may be shown in the misman- agement of the master's affairs, in the selection and employment of incompetent and unfit agents and servants, or the furnishing of improper and unsafe machinery, implements, facihties, or mate- rials for the use or labor of the servant.^ And to charge a master with liability to one servant for an injury, on the ground that he has selected and employed another unskilful and incompetent servant, it must appear that the injury complained of was the result of the want of skill and competency of the other." ^ 1 See Wright v. N. Y. C. R. R. 25 (since reported in 53 N. Y. 549 ; in- N. Y. 562; Warnerr. Erie Railway, fra, § 241). The facts were as fol- 39 N. Y. 468 ; and the cases cited in lows : The plaintifTs intestate was a them. fireman in the employ of defendant ; 2 Ibid. on the occasion in (juestion he wa« * Wright V. R. R. 25 N. Y. supra. upon an engine attached to a freight " This case," says an able article in train, proceeding up a heavy grade ; the Albany Law Journal for Jan. 30, a short distance ahead of the train in 1874, " was succeeded by that of Flike, question was another freight train, Adin'x, V. Boston & Albany R. R. Co. going in the same direction ; the three in the same court, but not yet reported rear cars of the forward train became 211 § 220.] NEGLIGENCE : [book I. Othenvise u'hen superior servant has control of the concern. — Where, however, the employer leaves everything in the hands of a middle-man, reserving to himself no discretion, then the mid- dle-man's negligence is the employer's negligence, for which the latter is liable.^ detached from their train, and rolled back, down the heavy grade, upon the engine of the rear train, and killed the intestate ; the forward train had only- two brakcnien, whereas it should have had three, and it was shown that the accident would not have occurred if it had had the usual number of brake- men. It was the duty of one Rocka- feller to man the forward train on its start, and he had employed three brakemen for it and directed them to accompany it ; one of the brakemen so employed and directed overslept, and did not accompany the train. On these facts the court held that it was the duty of Rockafeller to see that the proper number of brakemen started out with the train ; that the neglect of the brakeman himself did not ex- cuse Rockafeller's neglect in this par- ticular ; that the fundamental duty of the master to furnish sufficient and competent co-servants for the perform- ance of the work, was not performed, and that the defendant was liable, upon the principle laid down in the Laning case." 1 Grizzle v. Frost, 8 F. & F. 622 ; Brickner v. R. R. 49 N. Y. 672 ; Mur- phy V. Smith, 19 C. B. (N. S.) 361; supra, § 222 ; infra, § 241. See to the last point Ford v. Fitch- burg R. R. Co. 110 Mass., where the plaintiff was an engineer, engaged in running a locomotive engine, and was injured by explosion of his en- gine, which was old and out of repair. It was objected to the maintenance of court, said : " The rule of law which exempts the master from responsibility to the servant for injuries received from the ordinary risks of his employ- ment, including the negligence of his fellow-servants, does not excuse the employer from the exercise of ordi- nary care in supplying and maintaining suitable instrumentalities for the per- formance of the work required. One who enters the employment of another has a right to count on this duty, and is not requii'ed to assume the risk of the master's negligence in this respect. The fact that it is a duty which must always be discharged, when the em- ployer is a corporation, by officers and agents, does not relieve the corpora- tion from the obligation. The agents who are charged with the duty of sup- plying safe machinery are not, in the true sense of the rule relied on, to be regarded as fellow-servants of those who are engaged in operating it. They are charged with the master's duty to the servant. They are em- ployed in distinct and independent departments of service, and there is no difficulty in distinguishing them, even when the same person renders service by turns in each, as the con- venience of the employer may require. In one, the master cannot escape the consequence of the agent's negligence ; if the servant is injured in the other, he may. This case pro tanto over- ruled. Albror. Canal Co. 6 Cush. 75. See also Fort v. R. R. 2 Dillon, 259. " In Iowa, by statute, railroad com- the action, that the want of repair of panics are made liable for all damages the engine was caused by the negli- sustained by any person, including gence of his fellow-servants; but Colt, employees of the company, in conse- J., in deUvering the opinion of the quence of any neglect of the agents. BOOK I.] master's liability TO SERVANT. [§ 231. § 230. 31ust be in same '■'■ circle" of appointment. — In other words, the plaintiff and the fellow- servant causing the injury must be cooperating in the same business, so that the former knows that the employment of the latter is one of the incidents of their common service. The agreement to accept a common risk constitutes in this sense fellowship of service.^ But the work need not be one in which the immediate object is common,^ It is enough if the ser- vants are employed to effect a common general object. § 231. Of this rule we have many illustrations. Thus in an English case, elsewhere cited,* the evidence was that the plain- tiff was employed by the defendants as a carpenter and joiner, and in the course of such employment was engaged in painting an engine shed, near which was a turn-table. The servants of the company, in the course of managing the traffic, so negligently turned a carriage upon the turn-table that a ladder, supporting a plank upon which the plaintiff was standing, was thrown down, and the plaintiff was consequently injured ; and, upon an action being brought by him against the company, it was held that he could not recover. In the exchequer chamber. Pollock, C. B., said: " I am only desirous to add, that it appears to me that if we were to decide this case in favor of the plaintiff, we should open or by any mismanagement of the en- tie Miami R. R. v. Stevens, 20 Ohio, gineers or other employees of the cor- 415 ; Gillenwater v. R. R. 5 Port. 339 ; poration. Hunt v. Northwestern R. Fitzpatrick v. R. R. 7 Port. 436 ; Walk- R. Co. 2G Iowa, 363. er v. Boiling, 22 Ala. 294. See, how- " It is held in Ohio that, where one ever, qualifying remarks of Lord servant is placed in a position of sub- Cairns in Wilson v. Merry, supra, ordination to, and subject to the or- ^ Lush, J., in Feltham v. England. ders and control of, another servant L. R. 2 Q. B. 36 ; cited Morgan v. of a common master, and the subordi- Vale of Neath Ry. Co., Law Rep. 1 Q. nate servant, without fault of his own, B. 149 ; 5 B. & S. 570, 736. and while in the performance of his « Waller v. Co. 2 H. & C. 109 ; Bar- duty, is injured through the negli- tonshill Coal Co. r. Reid, 3 Macq. 266 ; gence of the superior servant wliile Gray t;. Brassey, 15 Court of Ses. Cas. acting in the common service, an ac- 2d series, 135; Lovegrove r. Ry. Co. tion lies, in favor of the inferior ser- 16 C. B. N. S. 699 ; Baird v. IVttit, vant so injured, against the master. 70 Pa. St. 4 77. Pittsburg, Fort Wayne, &c. R. R. Co. » Wiggett i^. Fo.x, 1 1 Exeh. s:J2. V. Devinney, 17 Ohio St. 197, 210." * Morgan v. Vale of Neath 11. U. 5 Story on Agency, § 564, note by B. & S. 570; aff. in Exchecpur Ch. Green. See also Cleveland, &c. R. L. R. 1 Q. B. 145. R. Co. V. Keary, 3 Ohio St. 201 ; Lit- 213 § 232.] NEGLIGENCE : [BOOK I. the gates to a flood of litigation. In every large manufactory, where a number of workmen are employed in different depart- ments of the same business, we should have it split up into any number of objects, although they all had the same common pur- pose. Thus, in one manufactory the making of screws would be called one object, and the doing wood-work another, and so on ; and then a person employed in a superior department would be said to have nothing to do with the porter in the same estab- lishment." § 232. So, in another English case, where the defendants, being the contractors for large works, employed M. to do part of the work by the piece for a certain sum, payable by monthly instal- ments, according to the work done, the defendants finding the tools. W., who was then in the defendants' service, was taken by M. from his work and put to assist in the piece-work at weekly wages, but in accordance with the general regulations at the de- fendants' works, W. was paid his wages weekly by the defendants with their other workmen, and M., who before the contract piece- work, had also been in the defendants' employment at weekly wages, drew from the defendants money in that character, the whole being charged against him and deducted from the amount of the instalments when payable. W. having been killed while at work on the piece-work by the negligence of the defendants' servants, it was held, that W. and M. were both the servants of the de- fendants, and therefore that the administratrix of W. could not maintain an action against the defendants for the negligence of the defendants' other servants who were reasonably fit and com- petent for the service in which they were employed.^ " We think," said Alderson, B., " that this question must be deter- mined in favor of the defendants, and a verdict entered accord- ingly. The principle on which our opinion is founded is to be found in the case of Hutchinson v. The Newcastle, York & Berwick Railway Co.,^ and it is this: that a master is not generally responsible to one servant for an injury occasioned to him by the negligence of a fellow-servant while he is acting in one common service ; and the reason for that in another part of the judgment is stated to be, that the servant undertakes, as be- tween him and the master, to run all ordinary risks of a service, ^ Wiggett V. Fox & another, 11 « 5 Ex. 343 ; 19 L. J. Ex. 296. Ex.832; 25 L.J. Ex. 188. 214 BOOK I.] master's liability TO SERVANT. [§ 233. including the risk of negligence of the other servants engaged in discharging the work of their common employer. Here both ser- vants were, at the time of the injury, engaged in doing the com- mon work of the whole contract, and for the contractors, the defendants ; and we think that the sub-contractor and all his servants must be considered as being for this purpose the servants of the defendants while engaged in doing the work, each directing and limiting his attention to the particular work necessary for the completion of the whole work ; and that otherwise we should not give full effect to the principle which governs such cases which, as stated in Priestly v. Fowler,^ mainly arose from the enormous inconvenience that would follow from holding the common em- ployer liable under such circumstances. Here the workman comes into the place to do the work knowingly and avowedly with others. The workman, as was suggested in Priestly v. Fowler, may, if he thinks fit, decline any service in which he apprehends injury will result to himself ; and in cases in which danger is to be appre- hended, he is just as likely, and probably more so, to be ac- quainted with the risk he runs than the common employer. If we are to hold the defendants liable, we should be obliged to hold that every contractor, where various painters, carpenters, plumb- ers, or bricklayers, and the like, were employed in building a house, would be liable for all accidents inter se to the various workmen so employed on the common object ; and perhaps it is even difficult to say whether it could stop there, for possibly tlie common employer would be made liable in such cases. If indeed there were any ground for holding the person or persons whose act caused the death of the plaintiff's husband were persons not of ordinary skill and care, the case would be different, for the de- fendants were certainly bound to employ persons of ordinary skill and care in the work ; but there is no suggestion of this sort." § 233. In a case in Illinois,^ it appeared that A., whose death when in the service of the company was the basis of the suit, was one of several workmen, under the immediate charge of one Hill, as foreman, whose duty consisted in examining all trains on their arrival at the railway station in B and making all needed repairs. He and a fellow-workman had been engaged in " jacking up " and repairing a car in a freight train, and having 1 3 Mee. & W. 6; 7 L. J. Ex. 42. ^ Cliieago & A. II. K. v. Murphv, 53 111. 336. 215 § 284.] NEGLIGENCE : [BOOK I. finislicJ liis work, had started for the sliop where they kept their tools, when, in passing down between tlie rails of the main track, he was overtaken and struck by a switch engine, and so injured that he soon after died. The switch engine was constantly en- gaged on the station grounds, and although under the immediate control of the yard master, it was used for whatever purpose it might be required, and among others, for switching such car or cars as were to undergo repairs by Hill's men. If a car in a train which had just arrived was found to need repairs. Hill would advise the yard master, and the latter would have the switch en- gine place the car in such a position in the yard as he might think proper, when Hill's men would make the necessary repairs. Under these circumstances it was ruled by the supreme court that the deceased, and the engineer managing the engine, through whose negligence A. received the injury which caused his death, were fellow-servants in such a sense as to subject them to the operation of the well established rule, which refuses a remedy against a common master, in favor of one employee, who receives an injury through the carelessness of another, while in the same line of duty. § 234. So it has been ruled in Maryland,^ that a brakeman on a train of cars is in the same common employment with the mechanics in the shops to repair and keep in order the machin- ery, with the inspector of the machinery and rolling stock of the road, and with the superintendent of the movement of trains. It was consequently decided that a brakeman cannot maintain an action against a railroad company by which he was employed, for an injury sustained by him, and which resulted from a defect in the brake on the train he was operating, if the defect existed by reason of the neglect or want of care of his fellow-servants, unless the railroad company was negligent in the selection of those servants ; and the onus of proof of such negligence is on the plaintiff. "The case of Searle v. Lindsay," ^ said Alvey, J., in giving the opinion, " before referred to, well illustrates this. There the plaintiff was employed by the defendants as their third engineer on board their steam-vessel. While turning a winch, one of the handles came off, in consequence of the want of a nut or pin to secure it, and the plaintiff was thereby seriously 1 Wonder v. B. & O. R. R. 32 Md. » jl C. B. N. S. 429. 410. 216 BOOK I.] master's liability TO SERVANT. [§ 235. injured. He was, with others, at work at the winch by the orders of the chief engineer, who knew that the instrument was out of order, but was, nevertheless, a competent person for the position he occupied. There was no evidence of personal negligence on the part of the defendants, and it was held that the chief engineer and the plaintiff were fellow-servants, and that, as the defect ex- isted by reason of the negligence of the chief engineer, whose duty it was to see that the machinery was kept in proper condi- tion, the plaintiff could not recover. And, in the concurring opinion of Mr. Justice Williams in that case, the law is briefly but clearly stated that governs cases like the present. He said : ' I think there was no foundation for the argument that Simpson, the chief engineer of the vessel, and the plaintiff, stood in any other relation towards each other than that of ordinary fellow- servants. Then, applying the rule of law which is now firmly established, the common employer is not liable to either for an injury sustained through the negligence of the other. In order to take this case out of the ordinary rule, it was contended that here there was negligence on the part of the employers them- selves. In order to make that out, there must be reasonable evi- dence to show that they were to blame, either in respect to their not having provided proper machinery and appliances, or not having retained competent workmen. I do not find any evidence at all of any default in either of these particulars. If the winch was out of order, it was owing to Simpson's negligence. There was no evidence, nor any suggestion, that Simpson was not a perfectly competent engineer.' And such was the view of all the judges." On the other hand, where the defendant employed a stevedore to unload his vessel, and the stevedore employed his own labor- ers, among whom was the plaintiff, and also one of the defend- ant's crew, named Davis, over Avliom he had entire control, and whom he paid, to assist in unloading ; and Avhere the plaintiff, while engaged in the work, was injured by the negligence of Davis ; it was held that Davis was not the servant of the defendant so as to make the defendant responsible for Davis's negligence.^ § 235. In an Illinois case, a fireman upon a railroad locomo- tive was killed by coming in collision with a mail-catcher while the train was in motion, the accident being occasioned by the 1 Murray v. Currie, L. R. 6 C. P. 24. 217 § 238.] NEGLIGENCE : [BOOK I. negligonce of the company in permitting the mail-catcher to be placed in too close proximity to the track. In an action by the administrator of the deceased, to recover damages against the company, under the statute, it was held that the servants of the company whose duty it was to see that the mail-catcher was placed a safe and proper distance from the track could not be regarded as fellow-servants of the deceased in the same line of employment, so as to prevent a recovery in the action against the common master.^ § 236. So, also, in a case in Pennsylvania, the plaintiff was employed as draftsman in the defendant's locomotive works ; a carpenter employed in " jobbing " for defendant about the works was, by the direction of the defendant, superintending the excavation of a cellar under the building, and employing and paying hands. He had a large pile of dirt thrown on the public foot-walk ; the plaintiff in leaving the house after dark, after ceasing his day's work, fell over the dirt and was injured. It was held by the supreme court, that the plaintiff and the car- penter were not fellow-servants in the same common employment, so as to relieve the defendant from liability from the carpenter's , negligence. 2 § 237. 4. What is the negligence in appointment and retention which precludes the master from talcing advantage of this excep- tion. — The question of negligence, in such case, is one of fact, to be determined by a jury, if there is any evidence on the subject which may properly be committed to their consideration. At the same time there are several points as to which the court may prop- erly speak in directing the consultations of the jury on this topic. § 238. Single exceptional acts of negligence do not prove an officer to he incofnpetent, — If so, no officer could be retained in service, for there is no person who is not at some time to some degree neg- ligent. Hence it has been properly said, that intelligent men of good habits, who are engineers, or brakemen, or switchmen on railroads, are not required to be invariably discharged by their employers for the first error or act of negligence such employees commit ; nor will railroad companies necessarily be liable for a second error or negligent act of a servant, to all other servants of such companies, when the latter sustain damages by reason 1 Chic, B. & Q. R. R. v. Gregory, 2 Baird v. Pettit, 70 Pa. St. 477. 58 111. 272. 218 BOOK I.] master's liability to servant. [§ 238. thereof .1 The question is, not whether there has not been a single act of negligence on the part of the person whose conduct is the subject of investigation, but whether this act of negligence, in con- nection with other circumstances, and with his general character and conduct, was such as to make his discharge by his employer a step of such prudence as diligent and prudent employers in the particular line of business are accustomed to exert. At the same time such act or acts of negligence on the part of such employee are proper articles of evidence, it appearing that such acts were known to the employer, or his agents in chief .^ 1 Baulec v. N. Y. & H. R. R. Co. 62 Barb. 623, per Balcom, J. See Moss V. Pac. R. R. 49 Mo. 167. 2 Pittsburg, &c. R. R. v. Ruby, 38 Ind. 294 ; though see contra, Frazier V. Penn. R. R. 38 Penn. St. 104. But if the pleading rests, not on the negli- gence of the employer in retaining the employee, but on a specific act of neg- ligence by the latter, then such evi- dence of prior negligence is inadmis- sible. Robinson v. Fitchburg R. R. 7 Gray, 92. See Collins «;. Dorches- ter, 6 Cush. 396. In Pittsburg R. R. v. Ruby, Bus- kirk, J., argues as follows : " The case of Frazier v. The Pa. R. R. Co., supra, is directly in point. It was an action on the case brought against the railroad company by Frazier, who was a brakeman employed by the de- fendant, to recover damages for per- sonal injuries received by him in the course of his employment, by reason of a collision of trains caused by the negligence of one of the conductors of the defendant. " The plaintiff proved that several collisions had occurred previously, and that they were produced by the careless and reckless conduct of the same conductor, and that the company had notice of such previous conduct of the conductor. " The court, in reference to the ad- mission of «uch evidence, say : ' The question of character thus became an important one, and we are constrained to say that it was tried on improper evidence. Character for care, skill, and truth of witnesses, parties, or others, must all alike be proved by evidence of general reputation, and not of special acts.* " The court, in support of this po- sition, referred to 7 Casey, 67, and 1 Greenl. Ev. sees. 461-9. The author- ities referred to wholly fail to sustain the ruling of the court. Both author- ities relate to the mode of impeaching witnesses, and it was held, in accord- ance with the uniform and well settled doctrine, that a witness could not be impeached by proof of specific acts. " The effect of the ruling in the Pennsylvania case was, that a railroad corporation could not be charged with notice of the incompetency of one of its employees, by proof of special in- stances of want of care, skill, and ca- pacity, although the acts were well known to the directors, president, and superintendent, and that the only mode in which such proof could be made was by proof of general char- acter. This case stands alone, unsus- tained and unsupported, so far as wo have been able to discover, by any elementary work or decision. Nor can the decision be sustained in rea- son or on princi{)le. Umlcr the oper- ation of that rule, corporations would 219 § 239.] NEGLIGENCE [book I. § 239. No presumption to he drawn from the fact that the em- ployee u'hose negligence is under examination was promoted from a lower to a higher grade^ if, in the same line of duty, the ex- pectation of such promotion stimulates diligence. Hence cor- porations as well as individuals must be at liberty to raise, men from lower to higher places ; and such elevation of them cannot in many instances be relieved of re- life or limb is endangered, or a large amount of property is involved, than in other cases. These rules are founded in reason, and sustained by the authorities, not only in this coun- try, but in England ; and every day's expei'ience demonstrates their wisdom and policy and the necessity of a rigid adherence to and ehforcement of them. " We think that it is well settled, not only by the authorities, but in rea- son and on principle, that for the pur- pose of showing that the officers of a railroad company had not exercised due care, prudence, and caution in the employment, or in retaining in service of careful, prudent, and skilful persons to manage and operate such road, and for the purpose of charging such corporation with notice of the incompetency of its employees, it may be shown that such employees had been guilty of specific acts of careless- ness, unskilfulness, and incompetency, and that such acts were known to such officers prior to the employment of such agents, or that such employees had been retained in such service after notice of such acts ; and in sup- port of these propositions we refer to the following authorities : "1 Redf. Railw. 552; Gahagan i'. Boston & Lowell R. R. Co. 1 Allen, 187-, The Illinois Central Railroad v. Reedy, 17 111. 580; The Galena & Chicago Union R. R. Co. v. Yarwood, 1 7 111. 509 ; Quimby v. Vermont Cen- tral R. R. Co. 23 Vt. 387 ; The Louis- ville & Nashville R. R. Co. v. Col- lins, 2 Duvall, 114." sponsibility for injuries received, re- sulting from the reckless conduct of such corporations in employing and retaining negligent, careless, and un- skilful persons to run and operate rail- roads. The safety and lives of the great mass of our people depend upon the care, prudence, and skill of those charged with managing and operating our numerous railroads. The care and skill should be in proportion to the dangers of the service. It is certainly a sound principle, that a contract to carry passengers differs from a con- tract to carry goods. For the goods the carrier is answerable at all events, except the act of God and the public enemy. But although he does not warrant the safety of the passengers, at all events, yet his undertaking and liability as to them goes to this extent, that he, and where the nature of the business requires agents, his em- ployees, shall possess skill ; and that so far as human care and foresight can go, he will carry them safely. He is bound to the highest degree of care that a reasonable man would use. " In a case like this, where the in- jury was caused by the negligence of a co-emplojee, the law only requires ordinary care. What is ordinary care, cannot be determined abstractly. It has relation to, and must be measured by, the work or thing done and instru- mentalities used, and their capacity for evil as well as good. What would be ordinary care in one case may be gross negligence in another. The de- gree of care required is higher when 220 BOOK I.] master's liability TO SERVANT. [§ 241. be imputed to the employers as negligence, unless the places from which they are raised are not such as to properly prepare them for the higher posts.^ § 240. Negligence on the occasion of the injury not hy itself suffi- cient to charge the employer ivith negligence in appoiriting the negligent employee. — This results from the express Hmitations of the exception under consideration. Of the application of these lim- itations we have an illustration in an English case in which the defendant was a maker of steam-engines, and the plaintiff was in his employ. An engine was being hoisted, for the purpose of being carried away, by a travelling crane moving on a tramway resting on beams of wood supported by piers of brickwork. The piers had been recently repaired, and the brickwork was fresh. The defendant retained the general control of the establishment, but was not present ; his foreman or manager directed the crane to be moved on, having just before ordered the plaintiff to get on the engine to clean it. The plaintiff having got on the engine, the piers gave way, the engine fell, and the plaintiff was injured. This was the first time the crane had been used and the plaintiff employed in this manner. It was ruled that there was no evi- dence to fix the defendant with liability to the plaintiff ; for that, assuming the foreman to have been guilty of negligence on the present occasion, he was not the representative of the master so as to make his acts the acts of his master ; he was merely a fel- low-servant of the plaintiff, though with superior authority ; and there was nothing to show that he was not a fit person to be em- ployed as foreman ; neither was there any evidence of personal negligence on the part of the defendant, as there was nothing to show that he had employed unskilful or incompetent persons to build the piers, or that he knew or ought to have known that they were in sufficient. ^ § 241. 5. Negligent appointments by middle-7nen or superin- tendents. — Wherever the nature of the business is such as to in- volve the appointment of subalterns by middle-men, and to with- draw the principal from the management of the business, tlien the principal is liable for the negligence of the middle-nuvn in making the appointments, on the ground that the negligence is that of the 1 Haskinr. R.R. 65Barb. 129. See ^ Feltliam i-. England, L. K. 'J Q. Edwards v. R. R. 4 F. & F. 53. B. 33. 221 § 241] NEGLIGENCE : [book I. principal, and not of a fellow-servant of the plaintiff. ^ In New York the liability of the master in such cases was at first doubted.^ But now it is settled that the master is as liable for the retention by his manager of incompetent subalterns, after notice of such in- competency, as he would be liable for their retention by himself, under similar circumstances.^ A fortiori is this the case where the middle-man has direct authority to make such appointment. Thus, permission given by the company to an engineer to allow a fireman to act as an engineer, when he deemed the fireman compe- tent, makes the company responsible for injuries resulting from a mistake or negligence of the engineer in permitting a fireman to handle the engine when incompetent for duty.* We may there- fore accept as binding the ruling of the court of appeals of New York, that if the master delegates to an agent the duty of employ- ing workmen, or of originally selecting physical appliances for the conduct of the business, the master is responsible to any servant who suffers injury from the negligence of that agent in the per- formance of that duty.^ Indeed, if we do not accept this, it is 1 Supra, § 222, 229; Brothers v. Carter, 52 Mo. 375. 2 Wright V. New Y. C. R. 25 N. R- 562. See S. C. 28 Barb. 80. 8 Laning v. N. Y. Cent. R. R. 49 N. Y. (4 Sickels) 521 ; Chapman v. N. Y. & E. R. R. 1 N. Y. Supr. Ct. 526 ; Bissel v. N. Y. C. R. 29 Barb. 613 ; Warner v. Cent. R. R. 49 Barb. 572 ; and see Gilman v. East. R. R. 13 Allen, 433; Noyes v. Smith, 28 Vt. 59 ; Frazier r. Penn. R. R. 38 Penn. St. 104; Walker v. Boiling, 22 Ala. 294. * Harper v. Indiana & St. Louis R. R. 4 7 Mo. 567. 5 Laning v. N. Y. Cent. R. R. 49 N. Y. 521. In a still later case, it was expressly ruled by the same court, that a cor- poration is liable to an employee for negligence or want of proper care in respect to such acts and duties as it is required to perform as master or prin- cipal, without regard to the rank or 222 title of the agent intrusted with their performance. It was declared that as to such acts, the agent occupies the place of the corporation, and that the corporation is to be deemed present, and conse- quently liable for the manner in which they are performed. It was accordingly held (Allen, Grover, and Folger, J J., dissenting), that where an agent of the defendant, a railway corporation, whose duty it was to make up and dispatch trains, and to hire and station brakemen, sent out a heavy freight train with but two brakemen, when three were required, and where the train broke in two, and in consequence of the want of neces- sary brakemen the rear part ran back- ward and collided with another train which had been dispatched five min- utes after the first, killing the fireman thereof, that the defendant was liable. It was further also held (Allen, Grover, and Folger, JJ., dissenting), BOOK I.] master's liability TO SERVANT. [§ 242. hard to see in what case a corporation, which can only appoint and dismiss through a general superintendent, can be liable for negligence in appointing or retaining. On the other hand, if the master holds control of the business, and is known so to do, re- taining in himself, according to the settled usage of the business, the power of dismissal and retention, it is not right that he should be chargeable, in a suit by one servant, with the negli- gence of another servant in the retention of an incompetent sub- altern, when the servant injured could have brought the matter home to the master himself. A servant, to put the matter in other words, who sees an incompetent subaltern at work by his side, and neglects to notify the master of such incompetency, when there is opportunity so to do, and when the master exer- cises the power of revision, must be presumed to acquiesce in the retention of such subaltern ; nor can he defeat this presumption by showing that he complained to a middle-man or managing agent of the subaltern's incompetency.^ § 242. 6. Master who, on being complained to of the negligence of a servant, gives reason to believe that such negligence will he corrected, cannot defend himself if such negligent servant ivorks in- jury to other servants. — In other words. A., a fellow-servant of the that the fact that the agent had em- necessary that he should have an as- ployed a third brakeman to go upon sistant in the performance of his work, the train, who failed to appear, did and the defendant's foreman engaged not excuse the company from liability, a boy for the purpose, who proved to Such hiring was only one of the steps be incompetent, and who, although to be taken to discharge the principal's complaint was made of his ineompe- duty ; that required the train to be tence to the foreman, was retained in supplied with sufficient help before it the service; it was the foreman's duty was dispatched. Nor is the company to engage or discharge the helper ; an relieved, although negligence may be accident happened to the plaintiff imputed to the defaulting brakeman. while working at the saw, through This would only make the negligence the boy's incompetence. Held, that contributory with the brakeman, but in the absence of any proof to show would not effect the liability of the that the foreman was incompetent for company. Flike v, Boston & Albany his position, there could he no recov- R. R. Co. 53 N. Y. 549. ery ; it being the foreman's duty to ^ Beyond this it would not be safe engage and discharge the boy, his re- to push the case of Smith v. Howard taining him, after knowing of his in- (22 L. T. Rep. 130, Court of Exch. competence, was merely an act of nog- 1870; Albany Law J. January 31, ligence by the j)laintiff's fellow-ser- 1874), where the evidence was that vant, for which defendant was not the plaintiff was employed by defend- responsible. See supra, § 222-229. ant to work at a steam-saw ; it was 223 § 243.] NEGLIGENCE : [BOOK I. plaintiff, shows himself incompetent, and the plaintiff complains to the common master, who by promises of correction induces the plaintiff to remain in the service. The plaintiff is subsequently injured by A.'s negligence. Is the master liable ? If a master is liable for injuries produced by defects in machinery which he has promised to rectify but does not,^ a fortiori is he liable for the negligence of subordinates which he has promised to rectify but does n,ot. For an employee, working at machinery, may gen- erally by inspection determine whether the master has or has not kejDt his promise of remedying a defect. The machinery- is patent, inspection will determine whether it has been repaired or its deficiencies made good. But this is not so with human agents. My fellow-servant may heretofore have been negligent ; but it is likely that his negligence may have been corrected by his master's admonitions and threats, brought about by my remon- strances ; nor can I tell by looking at him whether such has been the case. Hence, in such case, I am not guilty of negligence on my part, if, trusting in my master's assurances, I go on with my work ; and if I am injured by my master's neglect in this respect, my master is liable to me for the injury.^ V. PROVINCE OF JURY AND OF COURT. § 243. In ordinary cases, where the defence is contributory negligence, it is incumbent on the defendant, negligence on his part being shown by the plaintiff, to prove, if he can, that the injury was brought about by the plaintiff's negligence ; ^ and this rule obtains in all cases in which the plaintiff presents a case of negligence on the defendant's part, unmixed with any contributory negligence on his own part. But the case is different in a suit by a servant against a master ; for here as the plaintiff's own case assumes that he voluntarily entered into the employment where he was exposed to particular risks, it is necessary for him to prove, as part of his case, that the risk by which he was injured was not one of those which he agreed to assume.^ Hence, if he does not prove this, in other words, if he rests his case after show- 1 See supra, § 220. < See supra, § 217 ; Beaulieuw. R. R. 2 See Laning v. R. R. 49 N. Y. 534 ; 48 Me. 291 ; Kunz v. Stuart, 1 Daly and particularly supra § 220. 431 ; Columbus R. R. v. Webb, 12 Oh. 8 See infra, § 423. In Massachu- St. 475. setts, however, a contrary rule obtains. Murphy V. Dean, 101 Mass. 455. 224 BOOK I.] MASTER S LIABILITY TO SERVANT. [§ 243. ing that he was injured by an ordinary incident of his service, of which he was aware, or ought to have been aware, when he entered into it, he may be nonsuited by the court. ^ At the same time, if the plaintiff's case simply shows injury received through the defendant's negligence, and there rests, the burden is on the defendant to show that between them existed the relation of master and servant. ^ The following cases are cited on this point by the Albany Law Jour- nal of March 14, 1874: — The inquiry arises, after considering these cases, is the question of contrib- utive negligence always one for the jury, or may the court nonsuit where the fact seems clear ? A perusal of Owen V. N. Y. Cent. R. R. Co. 1 Lans. 108, will convince one that a case can be conceived where a nonsuit would be proper. In that case the plaintiff, a brakeman, in the employ of a railroad company, while discharging duties in the line of his employment upon the roof of a freight car, was carried against a highway bridge and sus- tained injuries. The bridge was only three and a half feet higher than the top of the cars, and had been so ever since the construction of the railway, and for many years. The brakeman entered into his employment with knowledge of its position and height, and had opportunity to learn of its continuance. A motion for a nonsuit was denied, and the case went to the jury, who, we suppose, rendered a ver- dict for the defendant, although the re- porter acutely neglects to say so. On appeal, the judgment was affirmed, the court saying that the motion for a non- suit should have been granted. Now, let us suppose, as a test, that this plaintiff had comjjlained to the de- fendant of the dangei-ous jwsition of this bridge, and the defendant had promised him to procure it to be raised, or to change his route so as to avoid it, would that have made the plaintiff 15 any less careless, and have rendered the question a proper one for the jury ? We cannot conceive that it would, and yet, if Holmes v. Clark is law, it would have that effect. The same doctrine was held in Assop v. Yates, 2 Hurl. & N. 768 : 1858. Plaintitf was a contractor, employed by defendant as a mason in the erection of a house. A hoarding had been put up, which was alleged to have projected too far into the street, but it was shown that sufficient room was left for carts to pass. Between the boarding and tlie building was a heavy uiachine called a crab and cradle, used for lifting stones, so placed that anything that knocked down the hoarding would kn(K'k down the machine. The plaintilV had com- plained to the defendant of the posi- tion of the machine. A cart, driven along the street, swung against the machine, knocked it down and hurt the plaintiff. A nonsuit was sustained, because " after having comi)lained of the hoarding, and knowing all the cir- cumstances, he voluntarily continued at work." So in Skip v. Eastern Counties Rail- way Co. 24 Eng. L. & Ec]. 3dii. The plaintiff was a guard in the service of defendants, and his duty was to couple carriages to an engine ; wlule doing this, in conse(iuenoe of not having an- other person to assist him, he was in- jured ; but for three months previously he had done the same work without assistance, and without making objec- tion. A nonsuit was approved. 225 § 244.] NEGLIGENCE : [BOOK I. VI. CONTRIBUTORY NEGLIGENCE BY SERVANT. § 244. The law as to contributory negligence, which will be hereafter discussed in an independent chapter,^ applies in general to suits brought by servant against master. It may here, how- ever, be distinctively stated that an employee who puts himself in a position of danger cannot recover for injuries which are thereby received.^ Thus, in an Iowa case, where it appeared that a rail- road employee, not being engaged in operating the train in question, on which he was riding, voluntarily got upon the tender of the engine, and while he was in this position the engine broke through a defective culvert or bridge, and he was killed ; and it appearing that a " caboose " car was attached to the train for passengers and those not engaged in operating the train, to ride in, and that if the deceased had been in there he would not have been injured ; it was ruled, that the employee was guilty of contributory negligence.^ In an Indiana case, it appeared from the evidence that B. and others, in the employment of a union railway company, were at work at a certain point on the railroad track of the company over which trains could pass at that point ; that a train of cars owned and run by the defendant was backing at the time ; that the bell of the locomotive was ringing ; that there were four or five cars in the train, and no method of communicating with the engineer from the rear of the train ; nor was there any brake in working order on the car farthest from the locomotive, although a brakeman was on the rear end of the car, the locomotive being at the other end of the train ; nor was any person in advance of the train to warn others of its approach. The locomotive was in charge of the fireman, the engineer being absent to procure a drink. The other persons employed with B. at work on the track stepped off, and some one called to him, " look out," when B., instead of stepping back, stepped forward, and was struck and killed. The fireman and one brakeman were the only persons in charge of the train. This instruction was asked and refused : " If, at the time deceased was killed, it was his duty to be en- 1 See infra, § 300. s Doggett v. 111. Cent. R. R. 34 Iowa, 2 See L. & R. R. R. v. Burke, 6 284. Cold. 45; B. & O. R. v. Trainor, 33 Md. 542, 226 BOOK I.] MASTER'S LIABILITY TO SERVANT. [§ 245. gaged upon the track at that place, and he might have seen the approach of the train by exercise of reasonable care, as by look- ing up, then the failure to do so, if he did so fail, was negligence on his part ; and if such negligence contributed to his injury, then the jury should find for the defendant." It was held by the supreme court that there was no error in this ruling, and that this evidence was sufl&cient to sustain a finding against the rail- road company. 1 § 245. Where the workman is at his proper place, pursuant to orders, and there is negligently struck by a train, then his right to recover is clear. Thus in an action for personal injuries sustained by the plaintiff by being run over by a locomotive engine of the defendants, while at work on a side track of the defendants, in the employment of a contractor, who under an agreement with the defendants was building a wall to support the road-bed, there was evidence that at the time of the accident the plaintiff and other servants of the contractor were standing on the side track and holding one of the guys of a derrick in act- ual use for moving stones to build the wall with ; that the work required the derrick and the guy to be in the position in which they were, and the plaintiff and his comrades to stand where they did and concentrate their attention on it ; and tliat the en- gine, after having just before moved a train of freight cars from the side track to the main track, was detached from the train and backed down the side track, without any signal of its approach until it struck the plaintiff, who knew and relied upon a usage of the defendants to ring the bell or sound the whistle whenever one ^ Indianapolis, &c. R. R. v. Carr, 35 moving, the tender came against liis Ind. 510. shoulder and knocked him under the In a trial in Mississippi, the evi- cars, and the tender wheels ran over dence was that H., who was in no way his left leg. There was no brakeman connected with the railway company, on the train. It was held that H. was was standing at the crossing in Can- not bound to obey the orders under ton, when the engineer or conductor which he acted, and the evidence was of the train ordered him to go in and clear that lie could have gotten away uncouple the cars. He refused at had he seen proper; and tliat, under first, but, in fear of some bodily harm the circumstances, tlie company was from the railway employee, who had not liable. New Orleans, Jackson k cursed and threatened to beat him if Great Northern Railroad Company v. he refused, was forced to perform the Harrison, 4.S Miss. 112. Hut il he acted service required. After he had un- in fear, and under comj)ulsion, this coupled the cars, the train commenced cannot be sustained. See supra, § 89. 227 § 245.] NEGLIGENCE. [book I. of tlicir engines approached men working upon the railroad. It was ruled by the supreme court of Massachusetts, that on this evidence a jury would be warranted in finding that there was due care upon the part of the plaintiff.^ VII. ACTION BY ONE SERVANT AGAINST ANOTHER. It has been said that one servant is not liable to a fellow-ser- vant for negligence.2 But unless the negligence be one of the risks which the injured servant assumed, this position cannot be sustained.^ 1 Goodfellow V. Boston, H. & E. R. R, 106 Mass. 461. Gray. J "It appears by the bill of exceptions that the plaintiff and other workmen, employed by a con- tractor, who, under agreement with the defendants, was constructing a wall to support their railroad, were engaged in holding a rope attached to a den-ick in actual use for moving stones for that purpose ; that the work required the derrick and rope to be in the position in which they were, and the plaintiff and his comrades to be upon the side track of the railroad ; that while they were there, busily at work, and while the safety of all required their most careful attention to their duty, a loco- motive engine, attached to a train of cars which had just passed over the side track to the main track of the railroad, was separated from the train, and, without any bell rung or signal given, run back upon the side track, and there struck and injured the plaintiff; and that he knew and relied on the custom of the defendants to ring the bell or sound the whistle whenever one of their engines ap- proached men working upon the rail- road. These facts, if not varied or disproved, would have warranted the jury in finding that the plaintiff was 228 rightfully where he was, and was not in fault in being engrossed in his work and unaware of the approach of the engine until it was too late to avoid it. Quirk v. Holt, 99 Mass. 164; Hackett v. Middlesex Manufacturing Co. 101 Mass. 101; Mayo v. Boston & Maine Railroad, 104 Mass. 137; Wheelock v. Boston & Albany Rail- road Co. 105 Mass. 203. " In Burns v. Boston & Lowell Rail- road Co. 101 Mass. 51, the ground upon which the plaintiff was held not to be entitled to recover was, that the circumstances of that case did not show that he was rightfully upon the side track of the railroad. And the remark quoted by the defendants from Quirk v. Holt, 99 Mass. 166, in which a man sustained an action for being struck by a wagon while at work in the highway, that ' his duty to keep watch for the defendant's approach was not the same as if he had been at work upon a railroad when the de- fendant was coming with a locomo- tive,' does not warrant the inference that in such a case as the present he must be held wanting in due care." 2 Southcote V. Stanley, 1 H. & N. 247; Albro v. Jaquith, 4 Gray, 99. 3 See note by Green to Story on Agency, §453e. CHAPTER VI. MUNICIPAL CORPORATIONS. Generally liable, apart from statute, for so misusing any property belonging to them, as to injure private persons, § 250. Charter not to be construed to impose extra- neous duties, § 257. Not liable for omission or negligence in dis- charge of discretionary functions, § 260. As in management of fire depart- ment, § 261. Otherwise as to negligence in sewer- age, § 262. Liability for damages arising from abuse of power, not to be confounded with lia- bility for damages arising from its im- perfect exercise, § 264. When, having power to remove a nuisance, liable for neglect, § 265. " Towns," as distinguished from municipal corporations, § 266. When municipal corporations are liable for neglect of servants, § 267. [^The duties of municipal corporations in respect to highways are discussed in a separate chapter, infra^ § 956.] § 250. Grenerally liable^ apart from statute^ for so misusing any property belonging to them, as to injure private persons. — No doubt a municipal corporation is not liable in a private suit for injuries resulting from its neglect of a discretionary public duty; but when it does acts for its own private advantage or emolument it becomes so liable, for the reason that " municipal corporations, in their private character as owners and occupiers of lands and houses, are regarded in the same light as individual owners and occupiers, and dealt with accordingly." ^ § 251. In New England where, as will be hereafter seen, from the peculiar division of the territory into towns, a distinctive ju- risprudence on this topic has grown up,^ the common law liaVnlity of municipal corporations for negligences of this class is strictly guarded. Thus in Massachusetts, " to render," as is well argued by Gray, J., " municipal corporations liable to private actions for omission or neglect to perform a corporate duty imposed by gen- eral law on all towns and cities alike, and from the performance of which they derive no compensation or benefit in their corpo- 1 Nelson, C. J., in Bailey v. New Barb. 254 ; Cowley v. Sunderland, 6 H. York, 3 Hill, 531 ; Brown v. N. Y. 3 & N. 565. 2 See infra, § 266, 956. 220 § 251.] NEGLIGENCE : [BOOK I. rate capacity, an express statute is doubtless necessary. Such is the well settled rule in actions against towns or cities for defects in highways.^ The same rule has been held to govern an action against a town by a legal voter therein, for an injury suffered while attending a town meeting, from the want of repair in the town-house erected and maintained by the town for municipal purposes only ; or by a child, attending a public school, for an injury suffered from falling into a dangerous excavation in the school-house yard, the existence of which was known to the town, and which had been dug by order of the selectmen to obtain gravel for the repair of the highways of the town, and to make a regular slope from the nearest highway to the school-house.^ But this rule does not exempt towns and cities from the liability to which other corporations are subject, for negligence in managing or dealing with property or rights held by them for their own advantage or emolument. Thus where a special charter accepted by a city or town, or granted at its request, requires it to con- struct public works, and enables it to assess the expense thereof upon those immediately benefited thereby, or to derive benefit in its own corporate capacity from the use thereof, by way of tolls or otherwise, the city or town is liable, as any other corporation would be, for any injury done to any person in the negligent ex- ercise of the powers so conferred.^ So where a municipal corpora- tion holds or deals with property as its own, not for the direct benefit and immediate use of the public, but for its own benefit, by receiving rents or otherwise, in the same way as a private owner might, it is liable to the same extent as he would be for the negligent management thereof to the injury of others. In Thayer v. Boston, 19 Pick. 511, it was held that a city was lia- ble for the acts of its agents, previously authorized or afterwards 15 Edw. 4, 2, pi. 24; Kiddle v. Pro- « Henley v. Lyme, 5 Bing. 91 ; S. prietors of Locks and Canals, 7 Mass. C. 3 B. & Ad. 77 ; 1 Scott, 29 ; 1 169, 187 ; Mower r. Leicester, 9 Mass. Bing. N. C. 222; 2 CI. & Fin. 331 ; 8 247; Holman v. Townsend, 13 Met. Bligh (N. S.), 690 ; Weet v. Brockport, 297; Brady v. Lowell, 3 Cush. 121; 16 N. Y. 161, note; Weightman v. Providence u. Clapp, 17 How. 161, Washington, 1 Black. 39; Nebraska 167. City V. Campbell, 2 Black. 590; Per- 2 Eastman v. Meredith, 36 N. H. ley, C. J., in Eastman v. Meredith, 36 284 ; Bigelow v. Randolph, 14 Gray, N. H. 289-294 ; Metcalf, J., in Bige- 541. How far this law is distinctive low v. Randolph, 14 Gray, 543; Child of New England will be seen infra, § v. Boston, 4 Allen, 41, 51. 266. 230 BOOK I.] MUNICIPAL CORPORATIONS. [§ 252. ratified by the city, in obstructing a highway to the special and pecuKar injury of an individual, by erecting buildings under a claim of title in the fee of the land, for which the city received rent. In Anthony v. Adams, 1 Met. 284, cited for the defendant, the town was held not liable, solely because the act which occa- sioned the injury was one which the town had not authorized, and was not required by law to do." He proceeds to cite with approval from Perley, C. J., the statement,^ that " towns and other municipal corporations, including counties in this state, have power, for certain purposes, to hold and manage property, real and personal; and for private injuries caused by the improper management of their property, as such, they have been held to the general liability of private corporations and natural persons that own and manage the same kind of property." " So far as they are the owners and managers of property, there would seem to be no sound reason for exempting them from the general maxim which requires an individual so to use his own that he shall not injure that which belongs to another." ^ It was consequently held, that if in repairing a building belonging to a city, and used in part for municipal purposes, but in considerable part also as a source of revenue by being let for rent, Avhich is situated on a public com- mon crossed by footpaths cared for by the city and used by the public for more than twenty years, the agents or servants of the city, acting by its authority, dig a hole in the ground adjoining, and negligently leave it open and unguarded, so that a person walking on one of the paths and using due care falls into it and is injured, the city is liable to an action at common law for the injury. § 252. In New York, a larger liability is maintained. Thus, where it appeared that the common council of the city of Bufifalo ordered the moving of one end of a bridge belonging to a turn- pike company, in order to have it conform to certain street im- provements, and employed contractors to do the work of removal under the superintendence of the city surveyor, and the con- tractors employed one S. to superintend such removal ; and the evidence was that the work was negligently performed, whereby the bridge fell and was destroyed ; it was ruled that the city was liable for the destruction of the bridge, and this whether the city 1 Eastman v. Meredith, 36 N. H. ^ Oliver i;. Worcester, 102 Mass. 295, 296. 490. 231 § 252.] NEGLIGENCE : [book I. had a lawful riglit to attempt its removal or not. The city, if it had no lawful right, was a trespasser and liable as such for the illegal acts of its officers. If it had lawful power to do the act, it was bound to do it in a careful and skilful manner, and was liable for the negligence of its agents. ^ 1 Buffalo & Hamburg Turnpike Co. V. The City of Buffalo, 1 N. Y. Sup. Ct. 537. See supra, § 195. In Thurston V. City of St. Joseph, 51 Mo. 510, Ad- ams, J., said :...." What are the rio'hts of a lot holder in reference to the adjacent streets and alleys ? The owner in fee of a tract of land may have it surveyed into town lots, streets, and alleys; and without selling any of the lots or acknowledging the plat, he may destroy the survey and vacate the streets and alleys. But if he convey away any of the lots, the right to the free use of the adjacent streets will pass to the grantees as appurtenant to their lots ; and such grantees will not only have a servitude or easement in the adjacent streets and alleys as ap- purtenant to the lots, but the convey- ance itself would be a dedication of the streets and alleys to the public as well as to the private use of the lots. This would be the result without any statutory dedication, by acknowledging and filing the plat with the county re- corder. The effect of a statutory ded- ication, however, is precisely the same. It vests in the adjacent lot-holder the right to the use of the streets as ap- purtenant to his lot, and this easement is as much property as the lot itself. It is a property interest, independent of the right of the public to use and improve the streets as public highways, and the lot-holder is as much entitled to protection in the enjoyment of this appurtenant easement as he is in the enjoyment of the lot itself. Hence, whatever inj ures or destroys this ease- ment is, to that extent, a damage to the lot. So if in grading a street it be 232 raised so high as to throw the surface water back upon the lot, or prevent a free access to the street ; or if the street be excavated so low as to render the easement of no use to the lot, the lot-holder is thereby damaged to the extent of the loss of such easement. The question here is whether the lot- holder has any remedy at all for such injuries. The case under considera- tion is a sewer, which the city no doubt had the power to construct. But the gravamen of the complaint is, that through negligence in the con- struction of this sewer, water was thrown on the lot of the plaintiff and thereby injured her property. If we are still to follow the rule as laid down in The City of St. Louis v. Gurno, 12 Mo. 414, and the subsequent cases of Taylor v. St. Louis, 14 Mo. 20 ; and Hoffman v. St. Louis, 15 Mo. 651, we must deny all remedy for such injuries. In the cases referred to, this court fol- lowed the lead of the King's Bench in The Governor, &c. v. Meredith & others, 4 T. R. (D. & E.) 794. The doctrines laid down in that case by Lord Kenyon and other judges, in my judgment, are not applicable to Amer- ica. The improvements which caused the injury, were made under an act of parliament which authorized the com- missioners to allow damages; but the court seemed to place their decision on the ground that parliament was omnip- otent, and on this ground alone denied any remedy to the injured party. The court held that as the improvement was made for public convenience, the maxim ' salus populi suprema lex esto ' applied, and that private rights must BOOK I.] MUNICIPAL CORPORATIONS. [§ 253. § 253. In a Pennsylvania case, sustainable even on the nar- row construction of the Massachusetts courts, it is ruled that a city, being in possession of a public wharf within its limits, exercising exclusive supervision and control oVer it, and receiving tolls for its use, is bound to keep it in proper condition, and is liable for special injury sustained by an individual in conse- quence of its neglect to keep the wharf in order. ^ But the courts have gone beyond this limit, maintaining the liability of mu- nicipal corporations, even as to acts for which they receive no emolument. Thus an incorporated district, authorized to pave and grade a public street, was held liable for an injury to a private right of way caused by the diversion of the water from ' the street upon the private way, on the ground that it had the power and was bound to make a proper provision for carrying yield to public convenience. The same line of reasoning was maintained by the learned judge who determined the opinion in the leading case of St. Louis V. Gurno. In adopting the rule laid down by the king's bench, he said : ' It has long since passed into a maxim, that the safety of the peoj)le is the supreme law, and, as a corollary from this ancient truth, that individual convenience must yield to the public good.' " Conceding the maxim to be just, the corollary, in the comprehensive sense used in England, is a no/i sequitur applicable to the American States. Our governments are republican, and are instituted for the protection of the people, in their individual rights of persons and property. These rights cannot be invaded as a mere matter of convenience to the public. It is only where the safety of the people is in- volved, that individual rights can be destroyed to protect the community from impending danger. Thus, in great conflagrations, private houses may be torn down or destroyed to stop the fire, and in like manner property of any kind may be destroyed to pre- vent the spread of contagious diseases. . . . . This line of argument and advice was tendered as a justification for refusing relief in St. Louis v. Gurno, and was followed without in- jury in the subsequent cases of Taylor V. St. Louis, and Hoffman v. St. Louis, uhi supra. The same course of reason- ing was pursued by the courts of New York, Pennsylvania, and Massachu- setts, relied on as authorities in St. Louis V. Gurno. See Wilson v. City of New York, 1 Denio, 595 ; 4 Serg. & R. 514; 9 Watts, 382; Callender t). Marsh, 1 Pick. 418. The same thing may be said in regard to all the American cases maintaining the doc- trines laid down in St. Louis i'. Gurno. " It is a notable fact that most of the American courts have blindly followed the rulings of the British court in the leading case of The Governor, &c. v. Meredith & others, 4 D. & E. 794. In doing so, they have entirely ignored Bome of the plainest and most impera- tive provisions of the bill of rights con- tained in the constitutions of the sev- eral States." 1 Pittsburg V. Grier, 21 Pa. St. (10 Harris), 54. 233 § 254.] NEGLIGENCE ; [book I. off the water from the street.^ So, in another case,^ in which tlie county was made responsible for the acts and omissions of the commissioners in relation to an unsafe bridge which fell witl^ the plaintiff's wagon and team. The bridge being on the line of two counties and maintained by both, it was afterwards held that Armstrong County could recover contribution from Clarion County, notwithstanding the case was one of negligence.^ § 254. In a still later case,* it was held that the city of Phila- delphia was liable for the acts of its board of water-works for negligently drawing off, without necessity, so much water from the Schuylkill River as to endanger the water privileges below the dam." ^ Commissioners of Kensington v. Wood, 10 Barr, 93. ^ Humphreys v. Armstrong Co. 56 Penn. St. (6 P. F. Smith), 204. 3 66 Penn. St. (16 P. F, Smith), 218. * City of Phil. v. Gilmartin, 71 Pa. St. 140. See supra, § 127, 190. ^ "We come now," said Agnew, J., "to the question of the liability of the city for the acts of her agents and ofEcers in relation to the use of the water of the Schuylkill. This inquiry bears upon the case in two aspects, viz., the competency of the evidence in the bills of exception, and the right of the plaintiff to maintain his action. The agreements heretofore considered, and the other evidence in the cause, exhibit the city as the proprietor of a vast water-power, and its appropriate machinery, and of lands, buildings, reservoirs, and an extensive system of pipes, by which she distributes the water to nearly a million of people. She sends it not only to private dwell- ings, but to public buildings, mills, manufactories, fountains, and to other uses. She is a vendor of water, and sells it for use in the arts, employ- ments, and pleasures of the people, deriving large revenues from the sales. In carrying on this vast business and trade in water she stands in the rela- and employs many agents performing the functions of servants, who are ac- countable to and report to the munici- pality, are governed by its regula- tions, and are supervised and controlled by the councils, committees, and offi- cers of the corporation. Thus, a mere statement of the facts discloses the relation of principal and agent in ref- erence to the city water-works, and not that of ordinary corporation offi- cers performing merely municipal functions." . ..." In performing municipal functions only, the corporation must act through officers, for whose negli- gence and irregularities it must be held liable. A municipal corporation is nothing more than an aggregation of persons, and it cannot be that lia- bility is wholly lost in the number. Men, whether as individuals or com- munities, have duties to perform which lie at the foundation of responsibility." " When a municipal corporation trans- acts business as a vendor and distrib- utor of water, the relation of her em- ployees is that of servants to her ; and the maxim respondeat superior applies to their acts and negligences in con- ducting this business. Surely it can- not stand in a higher relation to the business than the State herself when tion of an owner of private property, she forms business connections, and 234 BOOK I.] MUNICIPAL CORPORATIONS. [§ 256. § 255. So in a case in Georgia,^ the mayor and council of the city of Macon, having full power and authority to remove or cause to be removed any buildings, posts, steps, fences, or other obstructions or nuisance, in the public streets, lanes, alleys, side- walks, or public squares of the city, it was held that under this power they are bound to keep the streets, lanes, alleys, and side- walks in such condition that it is safe and convenient to pass them, and in case of failure that they are liable to any person injured by their neglect. It was further ruled, that a two-story brick wall of a house that had been burnt down some months previously, standing at the edge of the sidewalk, though private property, if it be so much dilapidated or decayed as to endanger the lives of persons passing the streets, is a nuisance, which the mayor and council are bound to have removed, and if they fail, and danger results to any person by reason of such neglect, the city is liable for the damages sustained. So in the same state a municipal cor- poration has been held liable for leaving a dangerous hole in one of its market places in which the plaintiff was hurt.''^ § 256. The same principle was implicitly affirmed in England,^ in a case already alluded to, where the house of lords, on final review, held that the trustees of the docks at Liverpool, incorpo- rated by act of parliament for the purpose of making and main- taining docks and warehouses for the use of the public, with authority to receive rates for such use, which were to be applied exclusively to the maintenance of the docks and warehouses, and the payment of the debt incurred in their construction, were lia- ble to an action by an individual for an injury to his vessel in entering one of the docks, by striking upon a bank of mud which their servants and agents had negligently suffered to accumulate for the time being lays down her sov- acts and declarations of her agents ereignty. Wheeling Bridge case, 13 and officers in the course of their sev- Howard, 560 ; Turnpike Company v. eral employments, and duty of super- Wallace, 8 Watts, 316. The facts of vision and control, wore part of the the case, as clearly ascertained, the res gestae, and were evitlence to the weight of authority, and the demands extent set forth in the bills of excop- of justice, make it evident that the tion." relation of the city to the Fairmount ^ Parker r. Mayor & Council of Water-works renders her liable for the Macon, 39 Ga. 725. acts of her servants and employees in * Savannah v. Cullens, 38 Ga. 334. drawing off the water contrary to her » Mersey Docks Trustees v. Gibbs, duty to the State, and her contracts 11 11. L. Cas. 687; i'. C. Law Rep. 1 with the Navigation Company. The II. L. 93. 235 § 2G0.] NEGLIGENCE : [BOOK I. at and about the entrance ; and the reasoning on which this is based is extended to municipal as well as to private corporations. § 257. Charter not to he construed to impose extraneous duties. — A duty, however, not imposed specifically on a corporation, cannot be constructively attached so as to make its neglect the subject of a suit. Thus, it is held in Maine that no action can be maintained against a town for neglecting to repair a drain across its highways, per quod the water accustomed to flow through it was forced back upon the adjoining land, unless it ap- pears that an obligation to construct the drain was imposed on the town by the statute or common law. It was also held that the common law requires a town to build a drain only where its high- way would otherwise obstruct the flow of water in its natural channel, or cause it to collect and stand upon adjoining land to the injury of the owner.i § 258. So in another case in the same state,^ where the health ofiicers took possession of a vessel and used it with the consent of the owner as a hospital for a small-pox patient, and after- wards sent a person to fumigate and purify it, who accidentally caused a fire, by which the vessel was injured. The city was held not to be liable for the injury, because the health ofiicers had no authority to take possession, and acted beyond their powers, and the city had no special property in the vessel.^ § 259. So in a New York action,* to recover compensation for personal property destroyed by blowing up a building to arrest a fire, upon the order of the mayor and two aldermen, acting under a statute, it appearing that the duty being imposed by the statute on the ofiicers and not on the city, and not by any city regulation, it was held that the city was not liable to respond in damages.^ § 260. Municipal corporations not liable for omission or negli- gence in performance of discretionary functions. — A municipal corporation, it is frequently said, is not liable in a private action for omission to exercise discretionary functions for the benefit of the public at large.^ 1 Estes V. China, 56 Me. 407; supra, * See supra, § 195. § 195. 6 Dillon on Mun. Cor. (2d ed.) § 2 Mitchell V. City of Rockland, 52 753 ; Mower v. Leicester, 9 Mass. Me. 118. 24 7 ; Holman v. Townsend, 13 Mete. 8 See supra, § 195. 297 ; Bigelow v. Randolph, 14 Gray, * Russell V. The Mayor of New 541; Wilson w. N. Y. 1 Denio, 595; York, 2 Denio, 461. Mills v. Brooklyn, 32 N. Y. 489 ; Jo- 236 liet V. Verley, 35 111. 58. BOOK I.] MUNICIPAL CORPORATIONS. [§ 261. " Municipal corporations undoubtedly are invested with certain powers, which, from their nature, are discretionary, such as the power to adopt regulations or by-laws for the management of their own affairs, or for the preservation of the public health, or to pass ordinances prescribing and regulating the duties of police- men and firemen, and for many other useful and important ob- jects within the range of their chai'ters. Such powers are gen- erally regarded as discretionary, because in their nature they are legislative ; and although it is the duty of such corporations to carry out the powers so granted and make them beneficial, still it has never been held that an action on the case would lie at the suit of an individual for the failure on their part to perform such a duty." ^ And this principle applies where a municipal corpora- tion " has a discretion as to the time and manner of making cor- porate improvements, as for example, building market-houses, improving its harbors, and the like." ^ § 261. Not liable for negligences in fire department. — Thus, for instance, a municipal corporation, in the absence of an express statute, is not liable for injuries sustained by reason of its negli- gence in providing or using or keeping in repair the water power and fire-engines and machinery which such corporation is au- thorized by law to procure and employ,^ nor is it liable for a per- sonal injury caused by the negligence of the officers of the fire department in performing their duties, although the department was established by a special statute which required its acceptance by the city.^ So in a Pennsylvania case,^ the evidence was that an act of as- sembly empowered a city to make a sufficient number of reser- voirs " to supply water in case of fire," and that the city council, 1 Weightman v. Washington, 1 ^ Fisher v. Boston, 104 Mass. 87; Black, 39, 49, as adopted in Fisher v. Hafford v. New Bedford, 16 Gray, Boston, 104 Mass. 94. 297 ; Eastman v. Meredith, 36 N. 11. 2 Dillon on Munic. Corp. (2d ed.) 284 ; Torbush v. Norwich, 38 Conn. § 753, citing Wilson v. Mayor of N. 225 ; Jewett v. New Ilav. 38 Conn. Y. 1 Denio, 595; Cole v. Medina, 27 368; Wheeler v. Cincin. 19 Ohio St. Barb. 218; Lacour v. Mayor, 3 Dner, 19; Patch i'. Covington, 17 R. Monr. 408; White y. Yazoo City, 27 Miss. 722; Brinkmeyer v. Evansville, 29 357; Levy v. N. Y. 1 Sandf. 465; Ind. 187; Weightman u. Washington, Griffin V. Mayor, 9 N. Y. 456 ; Kelley 1 JMack, 38. Supra, § 84. V. Milwaukee, 18 Wise. 83 ; Goodrich * Fisher v. Boston, 104 Mass. 87. V. Chicago, 20 111. 445, and other ^ Grant v. City of Erie, 69 Pa. St. cases. 410. Supra, § 84. 237 § 2G2.] NEGLIGENCE : [bOOK I. in pursuance of this power, constructed reservoirs but suffered one to be dilapidated so that it would not hold water. A fire occurred near this reservoir, and as no water could be obtained from it, the buildings were burned. The owner claimed damages, alleging negligence on the part of the city. It was ruled by the supreme court, that it was discretionary with the city to construct the reservoirs, and therefore was not liable for neglect so to do ; and that the city having in pursuance of the act constructed the res- ervoir, was not therefore bound to maintain it. § 262. Otherivise as to negligence in building sewers. — But even under the strict rule obtaining in Massachusetts, a city is liable for negligently performing a special statutory duty to meet which (as in case of a sewer) it is authorized to assess special taxes on parties benefited ; ^ for neglect in the maintenance in due order of its system of drainage and sewerage when once es- tablished, so as to overflow the property of individuals ; ^ and under the still more liberal expansion of liability obtaining in other states, for negligence in the planning of sewers, by which, through the insufficiency of the pipes to carry off water, the plain- tiff's house is overflowed.^ So it has been held in England that an action will lie against a local board of health, under the 11 & 12 Vict. c. 63, as a body, for negligently carrying out works within their powers, so as to cause injury to any person ; and for so negligently and improperly constructing a sewer as to cause a nuisance by its discharge.* And again,^ where commissioners act- ing under statutable powers, had ordered new sewers to be con- structed under a contract and plans which did not provide for a " penstock," or flat necessary to prevent the plaintiff's premises from being flooded, and the consequence was that the premises were flooded with sewerage ; it was held that the commissioners were liable to be sued for negligence.^ 1 Emery v. Lowell, 104 Mass. 13 ; N. Y. 54; Thurston v. City of St. Jo- S. C. 109 Mass. 197 ; Child v. Boston, seph, 51 Mo. 510. 4 Allen 41. A fortiori under the N. Y. « City v. Hufler, 30 Ind. 235 ; Roch- law ; Bailey r. New York, 3 Hill, 531; ester White Lead Co. v. Rochester, S. C. 3 Denio, 433. 3 Comst. 463. 2 Emery v. Lowell, 104 Mass. 13; * Southampton Bridge Co. v. Local 5. C. 109 Mass. 197; Child u. Bos- Board of Health of Southampton, 8 ton, 4 Allen, 41 ; New York r. Furze, Ell. & Bla. 801 ; 28 L. J., Q. B. 41. 3 Hill, 612; Lloyd v. New York, 1 ^ Ruck v. Williams, 3 Hur. & N. Selden, 369; Barton v. Syracuse, 36 308; 27 L.J. Ex. 357. 6 See also Ward v. Lee, 26 L. J. Q. 2?8 B. 142. •BOOK I.] MUNICIPAL CORPORATIONS. [§264. § 263. In Michigan, however, a different conclusion has been reached,^ and so also in Pennsylvania, in a case ^ where the evi- dence was that a power was conferred by its charter upon a munic- ipal corporation " to build and erect from time to time, as might become necessary, sufficient close culverts in and over the common sewers established in the district." The municipality did proceed to build culverts in the exercise of the power granted by the act of incorporation. The plaintiff alleged, and gave evidence tending to prove, that the culverts were not sufficient to carry off the water falling in a heavy rain ; that in consequence his store had been overflowed, and his stock of goods therein damaged. Chief Justice Lowrie, before whom the cause was tried in the court of nisi prius, at Philadelphia, without hearing any evidence for the defendants, entei'ed a judgment of nonsuit, and the judgment was affirmed by this court. The same learned judge, before whom the case had been tried, in delivering the opinion affirming the judgment, said : " We do not admit that the grant of authority to the corporation to construct sewers amounts to an imposition of a duty to do it. Where any person has a right to demand the exercise of a public function, and there is an officer, or set of officers, authorized to exercise that function, there, the right and the authority give rise to the duty ; but when the right depends upon the grant of authority, and that authority is essentially dis- cretionary, no legal duty is imposed." § 264. Liability for damages arising from abuse of power not to be confounded with liability for damages arising from its im- perfect exercise. — It must be remembered that the question whether a city shall be liable for flooding a house by bad drainage, and that whether it shall be liable for an insufficient supply of water, are very distinct. The first depends upon the principle sic utere tuo ut alienum non laedas. If, by a positive aggression, a city inflicts injury upon the estate of individuals, either by way of flooding or by such excavations as to cause the soil to fall in, then the city becomes liable ; and this covers the case of defective sewerage. On the other hand, when we ask for damages against a city for injuries we claim to arise from an inadequate supply of water, or an inadequate police management, we are obliged, in order to sustain ourselves, to fall back upon the principle that a 1 Dermont v. Detroit, 4 Mich. 435. ^ Carr v. Northern Liberties, 35 renn. St. (II Casey) 324. 239 § 26G.] NEGLIGENCE : [BOOK I. government that does not adopt all proper means for the relief of its subjects is liable in suits for damages to recompense tliem for injuries sustained by them from its neglect.^ This principle, how- ever, is the reverse of that which not only our own but the Roman jurisprudence proclaims. A government, whether state or munici- pal, cannot be made liable in suits for damages for injuries caused by its failure to supply its subjects even with necessities. Inde- pendently of other reasons, we must remember that if we accept this principle, government would be made liable not merely for what it undertakes, but for what it ought to undertake ; and the city, from being compelled to pay for everything that is wrong, would soon be unable to do anything that is right. No doubt hardships arise from a city's defective execution of its function in the dispensing of water and the control of fire. It must be kept in mind, however, that insurance against fire is vested, by all sound economical reasoning, in special insurance companies, and not in cities ; and that for any -persistent abuse of discretion in this respect, we have a correction in our periodical municipal elections. § 265. When having poiver to remove nuisance, liable for dam- ages caused hy its neglect. — A municipal corporation having full power to remove a nuisance, but neglecting so to do, or producing a nuisance when in the discharge of its legal powers, is liable for injuries caused by such neglect.^ § 266. Totvns as distinguished from municipal corporations are not liable urdess made so expressly by statute. — It has been stated that a municipal corporation is liable, apart from statute, for so misusing any remunerative franchise belonging to it as to injure a private person. This principle, however, is declared not appli- cable to the New England towns, which, it is ruled in Massachu- ^ See this distinction sustained in Glover, 15 Vt. 715; Willard v. New- Goodrich v. Chicago, 20 111. 445 ; bury, 22 Vt. 458 ; Currier v. Lowell, Lloyd V. Mayor of N. Y. 1 Seld. 369 ; 16 Pick. 170; Lowell v. Boston & L. Skinkle v. Covington, 1 Bush, 617; R. R. 23 Pick. 24; Palmer v. An- Mayor of N. Y. i'. Bailey, 3 Denio, dover, 2 Cush. 607 ; Bacon v. City 433; Middle Bridge u. Brooks, 13 Me. of Boston, 3 Cush. 179; Raymond 391. V. Lowell, 6 Cush. 529; Nebraska 2 Parker y. M. & C. of Macon, 39 City v. Campbell, 2 Blackf. 592; Ga. 725; People v. Corporation of Drake v. City of Lowell, 13 Mete. Albany, 11 Wend. 542 ; City of N. Y. 292; Chamberlain v. Enfield, 43 N. H. V. Furze, 3 Hill, 614 ; Kelsey v. 356. 240 BOOK I.] MUNICIPAL CORPORATIONS. [§ 267. setts, cannot be sued for neglect of duty in any case in which the remedy is not given by statute. ^ And this view obtains, not only in New England,^ but throughout the country, so far as concerns townships, counties, school districts, road districts, and similar divisions of the state, though they have corporate capacity, and power to levy taxes.^ At the same time, it is declared by Metcalf, J., when illustrating the IMassachusetts law,'* that the rule is "of limited application. It is applied in the case of " towns, only to the neglect or omission of a town to perform those duties which are imposed on all towns, without their corporate assent, and exclusively for public pur- poses ; and not to the neglect of those obligations which a town incurs when a special duty is imposed upon it, with its own con- sent, express or implied, or a special authority is conferred on it, at its request." ^ And the distinction, based as it is on the sup- position that a town is a political division of the commonwealth, subsides, as has been seen, when a town, by taking upon itself, at its own request, specific remunerative duties, places itself in the attitude, not of an integral portion of the commonwealth, but of a subordinate business agency. § 267. When liable for negligence of servants. — This point has been already independently discussed.^ 1 Mower w. Leicester, 9 Mass. 247; v. Saginaw Co. 11 Mich. 88; Bray r. Bigelow V. Randolph, 14 Gray, 541. WalHngford, 20 Connect. 41G ; Gov- 2 See Eastman v. Meredith, 36 N. ernor v. Justices, &c. 19 Ga. 97 ; Hay- H. 284, and cases hereafter cited, § good y. Justices, 20 Ga. 845; Coiu.i;. 906 et i^eq. Brice, 22 Pa. St. 211. 8 Dillon on Munic. Corpor. 2d ed. 4 Bigelow v. Randolph, 14 Gray, § 762; citing Treadwell v. Commis. 541. 11 Ohio St. 190; Hedges v. Madison 5 gee also remarks of Gray, J., su- Co. 1 Gilm. 111. 567; Freeholders v. ^ya, § 250. Strader, 3 Harr. (N. J.) 108; Van 6 See suin-a, § 190-195. Eppes V. Commis. 25 Ala. 4G0; Larkin 16 241 CHAPTER VII. PRIVATE CORPORATIONS. Charter or license no defence to collateral nuisance, § 271. Legislative authority to maintain public works and to receive tolls imposes the duty to keep such works in repair, § 272, Remedies given by charter do not exclude remedies at common law, § 278. Liability for acts of servants, § 279. § 270. Private corporations are generally subject to the same liabilities for negligence as are individuals. There are, however, several qualifications, peculiar to this branch of the law, which will now be noticed. § 271. Charter or license no defence to collateral nuisance. — A license from the state to permit a particular act to be done in a particular way is a defence for doing such act in such a way, even though the result be a nuisance, or a dangerous alteration of a highway.^ But where the work is done negligently, even an approval by the town engineer will be no defence, though the ordinance authorizing the work required that the work should be done to his satisfaction ; he not being invested with the power of determining the ultimate question of negligence.^ And gen- erally, a license or charter from the sovereign will be no defence to proceedings for a nuisance when such nuisance is not neces- sary to the exercise of the power.^ § 272. Legislative autliority to maintain public works and to receive tolls from them, imposes the duty to keep such works in repair. — The English law, as stated by Mr. Campbell,* is, that ^ Young V. Inhab. of Yarmouth, 9 ^ J)q\^ Canal Co. v. Com. 60 Penn. Gray, 386, a case where it was held St. 367; R. v. Morris, 1 B. & A. that the erection of telegraph poles, as approved by the selectmen of the town, under a general act of the leg- islature, could not be the basis of a suit against the telegraph company by a person who was injured by driving against one of the poles. 2 Delzell V. Indianapolis, &c. R. R. 32 Ind. 46. 242 441 ; State v. Buckley, 5 Harring. 508 ; Conn. v. Church, 1 Barr, 105 ; State V. Mulliken, 8 Blackf. 260; Com. V. Reed, 10 Casey, 275 ; Com. V. Kidder, 107 Mass. 188; People v. N. Y. Gas Light Co. 64 Barb. 55. * Negligence, § 1 7. BOOK I.] PRIVATE CORPORATIONS. [§ 272. where " a person or corporation is by statute intrusted with the making and maintenance of works, and entitled to demand toll for the use of those works, there is then a duty upon that person or corporation to the public (or at least to all persons lawfully using the works), ^ to take care that the works are so constructed and maintained with reasonable efficiency for the public purpose for which they are authorized to be made." Thus, in a conspic- uous English case,2 the plaintiff sued for damage to a ship and cargo caused by the ship grounding upon a bank of mud at the mouth of the dock. At the trial the Chief Baron Pollock di- rected the jury that, " if the cause of injury was a bank of mud in the dock, and if the defendants by their servants had the means of knowing the state of the dock, and were negligently ignorant of it, they were liable." A bill of exceptions was tendered to this ruling, and the jury having found for the plaintiffs, the ques- tion whether the chief baron's ruling was right in point of law came before the exchequer chamber, and afterwards on appeal to the house of lords.^ It was argued for the defendants, at the final hearing, that, to establish a case of liability against them, it was not enough that they were proved to have the means of knowledge of the obstruction, unless they were also proved to have actual knowledge of the existence and danger- ous nature of the bank. But this defence did not avail. And it was held that a body incorporated by statute, with the right to levy tolls for the profit of its members, in consideration of making and maintaining a dock or a canal, is liable in its cor- porate capacity to make good to the persons using it any damage occasioned by neglect in not keeping the works in proper repair. Nor were the defendants regarded as relieved from liability on the ground that they were not authorized to receive tolls for their own profit, since by the constitution of the corporation the profits of their undertaking were dedicated to the benefit of the public and of the shipping interest using the docks. It was hold unaniinoiisly by the learned lords present, following the joint opinion of the consulted judges (delivered by Blackburn, J.), that the lircum- ^ Shoebottom v, Egerton, 18 L. T. 18G5 in the house of kmls, on appeal (N. S.) 889. from the eoiirt of exehecjiier ehaiubor. 2 Mersey Docks and Harbor Trus- Reported L. 11. 1 II. of L. !)3. tees V. Gibbs and others, decided in a 7 n. & N. 309 ; 1 H. of L. 93. 243 § 274.] NEGLIGENCE : [BOOK I. stance of the profits being thus ultimately applied to public pur- poses made no difference. ^ § 273. So in another English case,^ the defendants had, by act of parliament, the right to construct a canal and take tolls thereon ; and had built tlie same across an ancient highway, having made a swivel bridge across the^ana,l for the passage of the High- way. A boatman having opened the swivel bridge to allow his boat to pass through in the night-time, a j)erson walking along the road fell into the canal and was drowned. It was held that the defendants, having a beneficial interest in the tolls, were liable to an action, the same as any owner of private property would be, for a nuisance arising therefrom. " It has been urged," said Pollock, C. B., " that what was done by this Canal Company was done by them under the authority of an act of parliament, passed many years ago, and with the same responsibihty as at- taches to the trustees of a highway, or other persons, acting in the performance of functions intrusted to them by statute. I do not think that argument can prevail. The owners of this canal were to be looked on as a trading company, who, though the legislature permits them to do various acts described in the stat- ute, are to be considered as persons doing them for their own private advantage, and ai*e, therefore, personally responsible if mischief ensues from their not doing all they ought or doing, in an improper manner, what they are allowed to do." § 274. The same result was reached in a case ^ where it ap- peared that the trustees of a turnpike road converted an open ditch which used to carry off the water from the road into a covered drain, placing catchpits, with gratings thereon, to enable the water to enter the drain. Owing to the insufficiency of such gratings and catchpits, the water in very wet seasons, instead of running down the ditch, as it formerly did before the alterations by the trustees, overflowed the road, and made its way into the adjoining land, and injured the colliery of the plaintiff. Upon this it was held, that the trustees were liable for such injury, if 1 Mersey Docks Trustees, &c. v. ^ Manley v. St. Helen's Canal and Gibbs, L. R. 1 H. of L. 93 ; see also Railway ComiDany, 2 Hurls. & Xorm. Coe V. Wise, L. R. 1 Q. B. 711. As 840. to Railway Companies, see Grote v. ^ Whitehouse v. Fellows. 10 Com. Chester & Holyhead Ry. Co. 2 Ex. B. N. S. 765; 30 L. J. C. P. 305. 251; and Virginia, &c. Ry. Co. v. Sanger, 15 Grat. 230. 244 BOOK I.] PRIVATE CORPORATIONS. [§2 (O. they were guilty of negligence in respect of sucli gratings and catch pits. 1 § 275. So also a corporation having statutory power to main- tain and repair the towing-path of a river, and to take tolls therefor, is bound to take reasonable care of the towing-path, so that it may be in a fit condition to be used, and is liable for neg- lect in the performance of this duty.^ And this results, apart from all other considerations, from the general principle that a person receiving toll for making or repairing a bridge, canal, or thoroughfare of any kind, is liable for defective work.'^ " It (the duty to repair) is a condition attendant upon a grant of the ^ See to same effect Coe v. Wise, Law R. 1 Q. B. 711; Clothier u. Web- ster, 5 B. & S. 970 (a case of not fill- ing up a trench) ; Cumberland Valley R. R. V Hughes, 1 Jones (N. C), 140. Selden, J., in West v. Brockport, 1 6 N. Y. 161, says: "Whenever an indi- vidual or a corporation, for a considera- tion received from the sovereign power, has become bound by covenant or agreement, express or implied, to do certain things, such individual or cor- poi-ation is liable, in case of neglect to perform such covenant, not only to a public prosecution by indictment, but to a private action at the suit of any person injured by such neglect." Tn Bessant v. Great Western Railway Company, 8 C. B. (N. S.) 368, sheep were damaged by straying through a fence which the Railway Company were, by their act, bound to maintain as an accommodation work to a neigh- boring proprietor. It was held that in such a case the company warrant to the occupier the sufficiency of the fence for all purposes required for good husbandry. In Coe V. Wise, L. R. 1 Q. B. 711, damage was caused to the plaintiff's land, by the bursting of a sluice through the negligence of the resident engineer and sluice-keeper in the ser- vice of the commissioners, a body con- stituted by statute with the duty of making and maintaining the sluice. The commissioners were held liable. " These all seem to be cases," says Mr. Campbell, in his Treatise on Neg- ligence, § 17," where the question is not merely that of ordinary negligence. In considering the effects of these statutory duties we must, however, consider whether the enactment is conceived in the interest of the public at large, or is merely in the nature of a covenant with the adjoining owners or occupiers. A statutory enactment of the latter class will n.ot gi-ound a remedy in favor of a stranger." Man- chester, &c., Railway Comjiany v. Wallis, 14 C. B. 213 (case of cattle straying on a highway adjoining the railroad.) As to how the obligation to maintain fences, &c., may be consti- tuted by award in pursuance of stat- ute see Lockhart v. Irish Northwest- ern Railway Company, 14 Irish C. L. 385. 2 Winch V. Conservators of the Tliames, L. R, 7 C. P. 4.-i8; Mersey Docks V. Gibbs, Law Rep. 1 II. L. 93. 3 Nichol V. Allen, 1 B. & S. 916; Mavor of Lyme Regis v. Henley, 1 Bing. N. C. '22*2; 2 CI. & Fin. 331 ; Parnaby v. Lancaster Canal Co. 11 Ad. & El. 230 ; Mersey Docks v. Gibbs, Law Rep. 1 H. L. 93. 245 § 277.] NEGLIGENCE ; [BOOK I. privilege to construct a public road or highway for profit, which from its very nature enures to the benefit of all who may have occasion to use the tlioroughfare." ^ § 276. So in a Massachusetts case,^ where a statute provided that a turnpike corporation " shall be liable to pay all damages which may happen to any persons from whom toll is demandable, for any damage sustained by a traveller in consequence of a defect in the road," the supreme court was of opinion, and so ruled, that by this act it was intended to provide that whenever the trav- eller himself is not chargeable with negligence or rashness, but when from an unforeseen cause, the road is actually defective and in want of repair, and an accident occurs without the default of either party, the company should be held liable. The ruling rested on the consideration that the toll is an adequate compensa- tion for the risk assumed, and that by throwing the risk upon those who have the best means of taking precautions against it, the public will have the greatest security against actual damage and loss. § 277. "Where a corporation," says Sharswood, J., in a case already cited, where the point was directly adjudicated,^ " in con- sideration of the franchise granted to it, is bound by its charter to keep a road or bridge in repair, it is liable for any injury to a person, arising from want of repair, whether the defect be patent or latent, unless he be in default, or unless the defect arose from inevitable accident, tempest or lightning, or the wrongful act of some third person, of which they had no notice or knowledge. It matters not that ordinary care was used in the erection or repair of it, and that such work was done under contract by a competent workman. The principle of Painter v. The Mayor of Pittsburg, 10 Wright, 132, has no application. That was an action for an in- jury sustained by the plaintiff, from the negligence of the contrac- tors of the defendants, while engaged in the actual construction of a sewer. Had the plaintiff, in this case, fallen into the canal in consequence of the negligence of the contractors employed by the defendants, while actually employed either in the construction or repair of this bridge, the case pr^ sented would have been entirely 1 Sharswood, J. — Penn. & Ohio R. a Pe„n. & Ohio R. R. v. Graham, R. V. Graham, 63 Penn. St. 296. 63 Pa. St. 296. 2 Yale V. The Hampden and Berk- shire Turnpike Company, IS Pick. 357. 246 BOOK I.] PRIVATE CORPORATIONS. [§ 279. different. It is supposed tliat Oakland Railway Company v. Fielding, 12 Wright, 320, is inconsistent with this view. But it is to be remarked that the injury arose, in that case, from a hole in the road made by third persons. ' If, then,' said the learned judge below, ' the defendants had notice of the hole, — if they knew that it rendered the street unfit and dangerous for public travel, and if they knowingly suffered it to remain in that condi- tion without an effort to repair it, they were guilty of negli- gence.' It is evident, then, that the case was rested upon an entirely distinct and independent ground, which does not touch the principle established in the other cases cited. It may be safely admitted that if a third person had wantonly or maliciously cut away part of the timbers of this bridge, in consequence of which it had fallen, the defendants would not be liable, unless notice or knowledge of the defect and neglect to repair it were brought home to them." § 278. Remedies given in charter do not exclude common law remedies. — Persons injured by such an abuse are not tied down to remedies given in charter. Thus it has been decided in Pennsyl. vania,^ that the remedies against a canal company, provided by their act of incorporation, for injuries arising from the construction of the works, do not exclude the common law remedies for in- juries arising from an abuse of their privileges, or for the neg- lect of their duties, and that they are, therefore, liable for injuries sustained by a riparian owner in consequence of an overflow of water, caused by the pool of their dam being filled up by dirt , without regard to the question by whose act such filling up was occasioned. § 279. Liability of such corporations for acts of servants. — As a general rule, as has been shown in another chapter, a master is liable for his servants' negligences when in the scope of their employ ment.2 One or two cases bearing on corporations may be here specifically noticed. Where an incorporated company undertook to lay water-pipes in a city, agreeing that it would " protect all persons against damages by reason of excavations made by them in laying pipes, and to be responsible for all damages which may occur by reason of the neglect of their employees in the premises," it was ruled by 1 Schuylkill Navigation Company 2 gee supra, § 15G-li)G, V. McDonough, 9 Casey, 73. 247 § 279.] NEGLIGENCE : [BOOK I. the supreme court of the United States, in a case where the evi- dence was that the company let the work out to a sub-contractor, through the negligence of whose servants injury accrued to a per- son passing over the street, that the company could be properly sued for damages. " Where the obstruction or defect," said Clif- ford, J.,^ " caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is, that the employer is not liable ; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agreed and was authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party .^ Exactly the same view was advanced by this court when that case was brought here by the first writ of error, in which the court said that if the nuisance necessarily occurs in the ordinary mode of doing the work, the oc- cupant or owner is liable ; but if it is from the negligence of the contractor or his servant, then he alone should be responsible ; ^ common justice requires the enforcement of that rule, as if the contractor does the thing which he is employed to do, the em- ployer is as responsible for the thing as if he had done it himself ; but if the act which is the subject of complaint is purely collat- eral to the matter contracted to be done, and arises indirectly in the course of the performance of the work, the employer is not liable, because he never authorized the work to be done.'^ It would be monstrous, said Lord Campbell, if a party causing another to do a thing were exempted from liability for the act, merely because there was a contract between him and the person immediately causing the act to be done, which may be accepted as correct if applied in a case where the work contracted to be done will necessarily, in its progress, render the street unsafe and inconvenient for public travel.^ More than one party may be liable in such a case, nor can any one who employs another to make such an excavation relieve himself from liability for such 1 Water Company v. Ware, 16 4 Hole v. Railway Co. 6 Hurlstone Wall. 566. & Norman, 497". 2 Robbins v. Chicago, 4 Wallace, ^ Ellis v. Gas Cons. Co. 2 Ellis & 679. Blackburn, 770; Newton v. Ellis, 5 8 Chicago V. Robbins, 2 Black, 428. Ibid. 124; Lowell v. Raiboad, 23 Pickering, 31. 248 BOOK I.] PRIVATE CORPORATIONS. [§ 279. damages as those involved in the case before the court by any stipulation with his employee, as both the person who procured the nuisance to be made and the immediate author of it are liable." 1 So, also, where the defendants being authorized by act of parliament to make an opening bridge over a navigable river, and they employed a contractor to construct it, it was held, that they were liable for damage caused by the defect of the bridge. 2 ^ Storrs V. Utica, 17 New York, 108 ; Creed v. Hartmann, 29 Ibid. 591; same case, 8 Boswortli, 123; Congreve v. Smith, 18 New York, 79 ; same v. Morgan, 18 Ibid. 84; Shear- man & Redfield on Negligence, 423 ; Mayor v. Furze, 3 Hill, 616 ; Milford V. Holbrook, 9 Allen, 21. 2 jjoie j;. The Sittingbourne Rail- way Co. 6 Hur. & N. 488 ; 30 L. T. Ex. 81. The principle on which a private person, or a company, is liable for damages occasioned by the neglect of servants, applies to a corporation which has been intrusted by statute to perform certain works, and to re- ceive tolls for the use of those works, although those tolls, unlike the tolls received by the private person, or the company, are not applicable to the use of the individual corporators or to that of the corporation, but are devoted to tlie maintenance of the works, and, in case of any surplus ex- isting, the tolls themselves are to be proportionably diminished. Mersey Docks V. Gibbs, L. R. 1 H. of L. 93 ; Parnaby v. The Lancaster Canal Company, 11 Ad. & E. 223. 1 Clothier v. Webster, 12 C. B. N. S. 790, 796. See Brownlow v. Metropolitan Board of Works, 16 C. B. N. S. 540 ; Gibson r. Mayor, &c. of Preston, L. R. 5 Q. B. 218; Parsons v. St. Matthew, Bethnal Green, Ij. R. 3 C. P. 50 ; Hvaius v. Webster, L. R. 4 Q. B. 138. " The law," says Mr. Broom (Com. Am. ed. p. 683), " requires that the execution of public works by a public body shall be conducted with a reason- able degree of care and skill ; and if they, or those who are emj)loyed by them, are guilty of negligence in tlie performance of the works intrusted to them, they are responsible to the party injured." ^ " In an ordinary case, moreover, where such commissioners in execu- tion of their office enter into a con- tract for the performance of work, it seems clear that the person who con- tracts to do the work is not to be considered as a servant, but a person carrying on an independent business, such as the commissioners were fully justified in employing to perform works which they could not execute for themselves, and who was known to all the world as performing them.^ " And the person thus employed may himself, by virtue of an express statutory clause, be protected or ab- solved from liability to a suit whilst acting under the direction of the com- missioners.8 And a ship-owner is not responsible at common law * for in- 2 Judgm. Allen r. Hay ward, 7 Q. B. 975; citing Quannan r. Burnett, 6 M. & W- 499; Milligan v. Wedge, 12 A. & E. 737, and llapson V. Culiitt, !• M. & W. 710. 8 AVar.l v. Lee, 7 E. & B. 420 ; Newton v. Ellis, 5 E. & B. 115. * See also stat. 17 & 18 Vict. c. 104, 8. 249 § 280.] NEGLIGENCE. [BOOK I. § 280. Peculiar liahility of corporations for the negligence of their ujyper to their under employees. — In one respect a corpora- tion, which can only act through servants, is subjected to a heavier liability than an ordinaiy master, who may be presumed to direct his affairs himself. In the latter case it is natural for the em- ployer to say, " If you had cause to complain of a fellow-servant, why did you not come to me ? " " If a middle-man appointed a negligent servant, his negligence was not mine." But a corpora- tion, which can only act through servants, cannot say this, if its principal and superior servants are those guilty of the negligence. For such principal and superior servants may be the heads of their departments, and if so, their negligence to an employee is the negligence of the corporation itself ; not the negligence of a fellow-servant.^ juries occasioned by the unskilful was compelled to take on board, and navigation of bis vessel whilst under in whose selection he had no voice." ^ the control of a pilot whom the owner ^ See supra, § 222, 241. 388; Gen. Steam Nav. Co. v. British & Col- i The Halley, L. R. 2 P. C. 193, 201, 202. onial Steam Nav. Co., L. R. 4 Ex. 238; The See The Thetis, L. R. 2 A. & E. 365. Lion, L. R. 2 P. C. 525. 250 CHAPTER VIII. PUBLIC OFFICERS. A Public administrative officer is liable to individuals for injuries sustained by them from his official negligence, § 285. Rule does not apply to judges, § 286. Special damages necessary to sustain suit, § 286 a. Officers not personally liable to contractors on official bonds, § 287. Not usually liable for neglects of official sub- ordinates, but otherwise as to private ser- vants, § 288. Sheriffs, constables, tax collectors, § 289. Receivers of public money, § 290. Commissioners of highways, § 291. Postmasters, § 292. Deputies and assistants liable for their own negligence, § 295. Mail contractors, § 296. Clerks, prothonotaries, and registering offi- cers, § 297. § 285. A public ministerial officer is liable to individuals for injuries sustained by the latter from his negligence in the discharge of his official duties. — As a general rule, wherever an individual has suffered injury from the negligence of an administrative offi- cer who therein acts contrary to his official duty, an action lies on behalf of the party injured.^ Nor is the fact that the defendant contracted faithfully to perform his duties, not to the plaintiff, but to the government, any defence, for the action is founded not on contract but on breach of duty.^ ^Kent Com. 610 ; Story on Agency, § 320, 32 1. Infra, § 443. Nowell v. Wright, 3 Allen, 166 ; Bartlett v. Cro- zier, 15 Johns. 250; Robinson v. Cham- berlain, 34 N. Y. 389 ; Hover v. Bark- hoof, 44 N. Y. 1 1 3 ; Sawyer v. Corse, 1 7 Grat. 230; Lipscomb v. Cheek, riiil. L. N. C. 332; Kennard v. Willmore, 2 Heiskill, 619. When a magistrate acts ministerially (e. g. in issuing process), he is liable for negligence. Tyler v. Alfred, 38 Me. 530 ; Noxen v. Hill, 2 Allen, 215; Smith v. Trawl, 1 Root, 165; Briggs v. Wardwell, 10 Mass. 356 ; Rochester White Lead Co. v. Rochester, 3 N. Y. 73. 2 Winterbottom v. Wright, 10 M. & W. 109 ; Burnett v. Lynch, 5 B. & C. 589 ; Farrant v. Barnes, 11 C. B. (N. S.) 553; Marshall v. York, 11 C. B. R. 655. The cases are thus lucidly classified by Earl, C. J., in Hover v. Barkhoof, 44 N. Y. 113 : " The first and most pointed is the case of Adsit v. Brady, 4 Hill, 630. That was an action against the defendant, a canal superin- tendent, to recover damages sustained by the plaintiff from collision with a sunken boat which it was alleged the defendant had negligently j)ermitted to remain in the canal, and it was held that the plaintilF could recover. That was an action lor nonfeasance against 251 § 286.] NEGLIGENCE [book I. § 286. Rule does not apply to judicial officers. — Judges, how- ever, are, from the policy of the hiw, not liable for suits for neg- ligence in the performance of their judicial duties.^ a public officer, receiving bis compen- feasance of an officer wbo acts, or omits sation from tbe public and not from the individuals damaged, and in prin- ciple is precisely in point in favor of the plaintiff in this case. Judge Bron- son, writing the opinion, lays down the broad proposition, that when an indi- vidual sustains an injury by the mis- feasance or nonfeasance of a public officer, who acts, or omits to act, con- trary to his duty, the law gives redress to the injured party by action adapted to the nature of the case. While that case has been criticised in several cases, it has never been overruled. It was approved by Judge Mason, in Hutson V. The Mayor, &c. 9 N. Y. 169; by Judges Peckham and Hunt, in Robinson v. Chamberlain, 34 N. Y. 389, and in various other cases that have fallen under my observation. It has stood, as the law, for twenty-seven years ; and unless it can be clearly shown to be unsound in principle, it should be recognized as authority. It laid down no new principle ; for nearly fifty years ago, Chief Justice Best, in Henly v. The Mayor of Lyme, 5 Bing. 91, said: 'I take it to be perfectly clear, that if a public officer abuses his office, either by an act of omission or commission, and the consequence of that is an injury to an individual, an action may be maintained against such public officer. The instances are so numerous that it would be a waste of time to refer to them.' And still earlier, Chief Justice Spencer, in Bart- lett V. Crozier, 15 John. 250, said : 'It is a general principle of law, that •whenever an individual has sustained an injui-y by the nonfeasance or mis- to act, contrary to his duty, the law af- fords redress by an action on the case adapted to the injury.' And these eminent judges were preceded by Chief Justice Holt, who more than a century earlier laid down the rule in Lane v. Gotten, 1 Salk. 17, that in every case where an office is intrusted by the common law or by statute, an action lies against him for a neglect of the duty of his office. " The case of Robinson v. Chamber- lain was an action against a canal re- pair contractor, to recover damages which the plaintiff had sustained, be- cause he had not discharged the duty imposed upon him by his contract, by permitting lock-gates to be out of re- pair. It was held, that while the de- fendant had entered into contract with the state only, and received his com- pensation from the state, he was a quasi public officer, owing duties to the public, and, as such, was liable to every individual who sustained dam- age by his neglect of his duties. Judge Peckham, likening the canals to a pub- Uc highway, says : ' A failure to keep a public highway in repau- by those who have assumed that duty from the state, so that it is unsafe to travel over, is a public nuisance, making the party bound to repair liable to indict- ment for the nuisance, and to an action at the suit of any one who has sus- tained special damage.' This case was followed in Fulton Fire lusm'ance Company v. Baldwin, 37 N. Y. 648. And in harmony with these cases in Shearman & Redfield on Neg. 198, the authors, adverting to the distinc- 1 Bacon's Max. 17; Floyd v. Barker, 12 Rep. 23; Barnardistone v. Soane, 6 252 How. St. Tr. 1093; Ely v. Thompson, 3 A. K. Mars. 76 ; Mostyn v. Fabrigas, BOOK I.] PUBLIC OFFICERS. [§ 286 a. § 286 a. Special damage to an individual necessary to sustain a suit for negligeyice in discharge of a public duty. — An indi- vidual cannot, for his own benefit, and in his own name, sustain a suit against another for negligence in discharge of a public duty, when the damage is solely to the public.^ The technical reason given for this in the English books is the inconvenience which would be produced if a person violating a general duty could be sued by each person in the community. A better reason is, that as the right infringed belongs to the sovereign, as representing the public at large, so the correlative duty is one for which the sovereign alone can sue.^ But at the same time wherever an indictment would lie for negligent discharge of a public duty, then an action for negli- gence can be maintained by any party specially injured by such negligence. This principle has been applied to suits against a municipal corporation for neglect in repairing certain banks and tion sought by some judges to be made and return it. The duty of each is between the liability of public officers, who receive a comjiensation from the public, and those who receive a com- pensation from individuals, deny that there is, in principle, any such distinc- tion where public officers are charged with personal misconduct or negli- gence, and say : ' A sheriff who is paid for particular services by individ- uals, is no less a public officer than a postmaster who receives a salary from the government. The contract of each, usually confirmed by an oath, is with the government, to faithfully discharge the duties of his office. An individual who deposits a letter for transmission with a postmaster has as much right to insist upon the latter performing liis duty in respect to his letter as he has to insist that a sheriff, to whom he di- rects a writ, shall faithfully execute under the law : the sheriffs on certain prescribed terms ; the postmaster's ab- solutely and unconditionally. It is now settled in New York, that, so far as concei'ns the question of remedy, there is no distinction between these two classes of public officers.' They further indorse the rule laid down by Judge Bronson, in Adsit v. Brady, that a public officer, not judicial, who, in his office, acts carelessly and negli- gently, or who, contrary to his duty, omits to act, or otherwise abuses his office, is answerable in damages to any one who is specially injured there- by." 1 1 Bla. Com. 220. Loss of mere contingent probable profits not enough. Butler v. King, 19 Johns. 223; Bank v. Mott, 17 Wend. 556. 2 Ashby V. AVTiite, Ld. Kaym. 938. Cowp. 161; Evans v. Foster, 1 N. H. 374 ; Tracy v. Williams, 2 Conn. 113 ; Taafe v. Downes, 3 ISIood. P. C. 36. n. ; Ryalls i;. R. 11 Q. B. 796; Iloulsen v. Smith, 14 Q. B. 841; Yates v. Lan- sing, 5 Johns. 282 ; Pratt v. Gardiner, 2 Cush. 68 ; Colman v. Anderson, 10 Mass. 356 ; Young r. Herbert, 2 Nott & Mc. 168 ; Cunningham v. Buck- lin, 8 Cow. 178. Even private .irbi- trators are protected. Pappa v. Rose, L. R. 7 C. P. 32, 525; Tharsis v. Lof- tus, L. R. 8 C. P. 1 . 253 § 287.] NEGLIGENCE [book I. sea-shore, which it was obliged to do by charter, whereupon spe- cial damage occurred to the plaintiff.^ § 287. Officers not personally liable to contractors on official bonds. — It is held in England that a public officer of the crown, contracting in his official capacity, is not personally liable on the contracts so entered into; in 'such cases, therefore, the rule of resjjondeat superior does not apply, such exceptions to it resulting from motives of public policy ; for no prudent person would ac- cept a public situation at the hazard of exposing himself to a midtiplicity of suits by parties thinking themselves aggrieved.^ And such, as will be seen, is the law in the United States.^ ^ Henley v. Mayor of Lyme Regis, 5 Bing. 91, 3 B. & Aid. 77 ; 2 CI. & Fin. 331. ' ' There is no doubt of tlie truth of the general rule, that where an indict- ment can be maintained against an individual or a corporation for some- thing done to the general damage of the public, an action on the case can be maintained for a special damage thereby done to an individual, as in the ordinary case of a nuisance in the highway, by a person digging a trench across it, or by the default of the per- son bound to repair ratione tenurae. Upon this ground the corporation of Lyme Regis was held to be bound to compensate an individual for the loss sustained by non-repair of sea-walls in a case which was decided by the court of common pleas." Hartwell v. Ryde Commis. 3 B. & S. 361. 2 Per Dallas, C. J., Gidley v. Lord Palmerston, 3 B. & B. 286, 287; per Ashhurst, J., Macbeath v. Haldiman, 1 T. R. 181, 182. ^ " On a similar principle," says Mr. Campbell (Negligence, § 20), " is based the liability of certain public officers intrusted by the state with duties for which fees are exigible, and on the exact performance of which the security of private right depends. " The most familiar instance in this country is the liability of the sheriff 254 for failure in the due execution and return of process, and for an escape. In the latter case, it has been said that nothing but the act of God or the queen's enemies will excuse ; that is to say, he warrants the exact perform- ance of the duty. Atkinson on the office of a sheriff, § 10 ; Allen v. Carter, L. R. 5 C. P. 414 ; cf. Loyd v. Harrison, L. R. 1 Q. B. 502. This high degree of responsibility only ap- plies between the sheriflT and the per- son who employs him. For instance, his liability to the owners of goods seized under an execution is only that of an ordinary bailee intrusted with goods for sale. " In Scotland the duty of executing all the queen's writs, inclusive of the summons which in England may be served by anybody, belongs to mes- sengers-at-arms. The liability of these officers in Scotland is substan- tially on a par with the liability of the sheriff in England. In the inferior courts in Scotland the execution of writs belongs to sheriff-officers, who are not mere servants of the sheriff, but are themselves responsible public officers. The rationale of the liability of these officers is well considered in the case of Brock v. Kemp, Feb. 20, 1844, Court of Session, 6 D. 709, where it is in effect held that the offi- cer warrants the due execution of the writ." BOOK I.] PUBLIC OFFICERS. [§ 289. § 288. Public officer not ordinarily liable for negligence of official subordinates, but liable, in cases where he would himself be liable, for negligence by his private servants. — An official subordinate, when appointed and recognized as an independent officer by the law, must stand or fall by himself ; and to him, unless otherwise provided by statute, the maxim respondeat superior does not ap- ply.^ " With regard to the responsibility of a public officer for the misconduct or negligence of those emjDloyed by or under him, the distinction generally turns upon the question whether the persons employed are his servants, employed voluntarily or privately, and paid by him and responsible to him, or whether they are his offi- cial subordinates, nominated perhaps by him, but officers of the government ; in other words, whether the situation of the inferior is a public officer or private service. In the former case, the offi- cial superior is not liable for the inferior's acts ; in the latter he is." 2 " The exemptions of public officers from responsibility for the acts and defaults of those employed by or under them in the dis- charge of their public duties," says Jaynes, J., in a case where the question was ably discussed in Virginia,^ " is allowed, in a great measure, from considerations of public policy. From like considerations it has been extended to the case of persons acting in the capacity of public agents, engaged in the service of the public, and acting solely for the public benefit, though not strictly filling the character of officers or agents of the government." * In England the practice is to exempt the private property of certain officers from liability, in which case such officers, if sued in their corporate capacity, are bound by the official acts of their subordinates.^ § 289. Sheriffs, constables, tax collectors. — So far as concerns 1 Hall V. Smith, 2 Bing. 156 ; Find- " American Leading Cases (3d ed.), later v. Duncan 6 C. & F. 903; Nich- 621. olson V. Morrissey, 15 East, 384; Mc- 8 Sawyer v. Corse, 17 Grat. 230. Millen v. Eastman, 4 ]\Iass. 378; * Citing Hall v. Smith, 2 Biiu^h. R. Franklin v. Low, 1 John. K. 396 ; Hoi- 156 (9 Eng. C. L. R. 3o7) ; IloUiday liday v. St. Leonards, 11 C. B. (N. S.) v. St. Leonards, Com. B. (N. S.) R. 192; Lane v. Cotton, 1 Lil. Raym. 192 (103 En-:. C. L. R. 192.) . . . . 646; Whitfield v. Lc Dcspencer, See also Cornwell r. Vorhees, 13 (Ihio Cowp. 754; Dunlop v. Miinroc, 7 R. 523; Hutchins r. Brackett, 2 Fos- Cranch, 242 ; Wriggins v. Hathaway, ter, 252. 6 Barb. S. C. 632 ; Schroyer i'. Lynch, ^ Mersey Docks v. Gibbs, L. R. 1 8 Watts, 453, H. L. 93 ; 11 H. L. 686. 255 § 290.] NEGLIGENCE : [BOOK I. the clue execution of process, the sheriff is hable to persons in- jured by his neglect m exercising due diligence in the service. The burden is on the defendant to prove such diligence.^ A sheriff, from the necessity of the case, is liable for the negligence of his deputies.^ So far as concerns the owner of goods taken in execution, he is liable only for the diligence of an ordinary bailee for hire ; ^. e. for the diligence that a good business man would under similar circumstances show.^ This rule is applied in the Roman law to the tax collector who seizes cattle in satis- faction of taxes, and injures them, when holding them in pound, from neglecting to give them due food.^ But there is no liability for loss by fire, or force, when no negligence exists.^ JEscape^ being a topic belonging more properly to books of procedure, will not be here discussed. § 290. Receivers of public money. — At common law, irrespec- tive of statutes, and of the limitations of official bonds, receivers of public money are liable for culpa, both lata and levis ; for they are required to employ not merely the diligentia of an ordinary person, seeing what every person sees, but the diligentia diligen- tis, the diligence of an intelligent and faithful business man in his specialty, — a man sufficient, skilful, and judicious, able to undertake the specialty, and employing in undertaking it the diligence which a skilful and judicious expert would in such case employ.^ But where he executes a bond, making his liability absolute and unconditioned, or where his liability is made ab- solute by statute, then he is bound to restore the value of money deposited with him, though it should appear that he lost the 1 Wolfe w. Dorr, 24 Me. 104; Kit- 15 N. H. 222; Tucker v. Bradley, tredge v. Fellows, 7 N. H. 399; Pierce 15 Conn. 46. V. Partridge, 3 Mete. 44; Barnard v. ^ Campbell v. Phelps, 17 Mass. 244, Ward, 9 Mass. 269; Dorrance i;. Com. and cases there cited; Mclntyre v. 3 Penn. St. 160; Diinlop v. Knapp, Trumbull, 7 Johns. 35. 14 Ohio St. 64; Robinson v. Cham- ^ Browning i;. Hanford, 5 Hill, 588; berlain, 34 N. Y. 389; Ransom v. Moore v. Westervelt, 27 N. Y. 234. Hulcott, 18 Barb. 56. See Allen v. * L. 2. § 20. vi bon. rapt. 47. 8. Carter, L. R. 5 C. P. 414; Lloyd 5 Bridges v. Perry, 14 Yt. 262; V. Harrison, L. R. 1 Q. B. 502 ; Lips- Browning v. Hanford, 5 Hill, 588. comb V. Cheek, Phil. L. N. C. 332; e Lane v. Cotton, Ld. Ray. 646; Kennard r. Willmore, 2 Heiskill, 619; Supervisors of Albany v. Dorr, 25 Brock V. Kemp, 6 D. (Scotch) R. 709, Wend. 440 ; S. C. on App. 7 Hill, cited Campbell on Neg. § 20 ; Osgood 783. Supra, § 32. V. Clark, 6 Foster, 307; Ferry v. Bass, 256 BOOK I.] REVENUE OFFICERS. [§ 290. amount by pure accident, or was robbed of moneys paid over to liim, to the amount sued for, by superior force, without his fault.i Thus in a late case in the supreme court of the United States,^ it was said by Strong, J., " It was the duty of Bevans to pay over the money in his hands, in hirge part, more tlian a year before any obstacle came in the way of his payment. Had he performed his duty, all of it would have been paid into the treasury by the 1st of April, 1861. He was, therefore, a de- faulter when the alleged seizure was made, and it was his default which concurred with the acts of the public enemy, and con- tributed to, or facilitated, the wrong which was perpetrated, or, at least, rendered it possible. Since then his bond had become absolute by his failure to perform its conditions, and since the evidence offered tended to show at most an excuse for non-per- formance after May 6, 1861, it is manifest that it presented an insufficient defence to the action. Seeking relief, which in its nature was equitable, as the receiver did, it was incumbent upon him to come with clean hands, and to place the obligees in the bond in as good a situation as they would have held had he made no default. It is not to be overlooked that Bevans was not an ordinary bailee of the government. Bailee he was, undoubtedly, but by his bond he had insured the safe keeping and prompt pay- ment of the public money which came to his hands. His obliga- tion was, therefore, not less stringent than that of a common carrier, and in some respects it was greater. In United States v. Prescott,^ it was said by this court : ' Public policy requires that every depositary of public money should be held to a strict ac- countability. Not only that he should exercise the highest degree of vigilance, but that he should keep safely the moneys which came to his hands. Any relaxation of this condition would open the door for frauds which might be practised with impunity.' These observations apply in full force to the present case. It cannot be allowed that a depositary of public money, wiio has not only assumed the common obligations of a bailee, but has given bond to keep safely the money in his hands, and to pay it 1 Boydcn v. U. S. 13 Wall. 17; 9 Howard, 578; State v. Harper, 6 Bevans v. U. S. 13 Wall. 56 ; Com. v. Ohio St. G07. Comly, 3 Ponn. St. 372; Muzzy v. '^ Ikvaus c. Uniteil States, 13 Shattuck, 1 Denio, 133; U. S. v. Pres- Wall. 511, that his parents, by neghgently suffering him to run at hirge, put liini in the way of being thus harmed. ^ favored of her sex, having servants at sentinel on the tender. The court their beck. Because the child man- helil the plaintiff entitled to recover, aged to lift the latch and momentarily In delivering the opinion, the district disappeared, are we to say this was court, among other things, says: 'If, negligence 7;e/-se, and that she iv/^ez-erZ however, this was an action by the her child to wander into the street? father to recover damages for the death What sort of justice is that which tells of the child, a very different question the mother agonizing over her dying would be presented. It would proba- child, Your negligence caused this, bly be held that it was negligence to You suffered your child to run into sulTer an infant to be on the streets the jaws of death. AVe cannot per- without a care-taker, and he could ceive any fault in the railroad com- not hold the defendants responsible, pany. A speed of eight miles an hour whether he had appointed a care-taker along this populous thoroughfare was avIio was negligent, or left the child all right. We can indorse no such to roam at large without one. 7o a cruel doctrine ; but we must say, as was cJiild of plaintiff ^s years no conlribu- said in Kay v. Railroad Company, the tory negligence can he imputed doctrine which imputes negligence to She is not precluded from recovery a parent in such a case is repulsive to against one joint tort-feasor, by showing our nafeiu-al instincts, and repugnant to that others hare home a share in it.' the condition of that class of persons This opinion was fully approved, and who have to maintain life by daily toil, the judgment anirnicd in the supreme 15 P. F. Smith, 276." court. In B. & I. li. R. Co. V. Snyder, 18 O. " The foregoing are all the leading St. 414, Welch, J., said : " But the most authorities on the subject. Upon cai-e- important case to be considered is that ful review of them, we are inclined to of the R. II. Co. V. Mahoney, 57 Penn.. follow those where the principle of ini- St. 18 7. It is important, because it puted negligence has been denied. It is elaborately argued and considered, follows, of course, that there is no er- and because it is almost identical with ror in this judgment. Indeed, it seems the case at bar. The plaintiff was a to us the same result must be reached child of four years, who had been run in tlie present case, whether the prin- over by an engine and tender passing, ciple contended for be adoi)ted or re- with the tender in front, slowly through jected. The injury here was within a street in the vicinity of several the ordinary and proijable sequence of schools. The child was unattended, but events, a result of the defendant's its aunt, in attempting its rescue, was negligence. It might reasonably have guilty of negligence which contributed been (Uilicipaled. There was dunger to the accident, resulting in her death of its happening, such as an ordinarily and the injury to the child. Theiault careful and prudent person might have of the railroad company consisted in apprehemU-d, and would be likely to so piling the wood upon the tender as apprehend, as a possible result of any to obstruct the engineer's view ahead, relaxation of vigilance and care." and in the engineer's failing to look ^ Singleton v. E. C. R. R. 7 C. B. out, as he might have done through a (N. S.) 287; Wait*- /•. N. K. R. R. 2 window, upon the track, or to place a B. & E. 7Ht ; Mangan i\ Atherton, L. 1^77 § 312.] CONTRIBUTORY NEGLIGENCE [book I. § 312. The English hiw on tliis point presents an extraordi- nary contrast. On the one side it is held that the negligence of R. 1 Exch. 239; Holly r. Gas Co. 8 by the defendant in a street in Bos- Gray, 123 ; Callahan v. Bean, 9 Allen, ton, evidence otTered by the plaintiff 401 ; Wright v. Street R. R. 4 Allen, tended to show that the plaintiff, tljree 283 (though see Lynch v. Smith, 104 'and a luilf years old, v/as sent by his Mass. 52) ; ITartfield i'. Roper, 21 mother, with his brother, nine years Wend. ()!."); Lehman v. Brooklyn, 29 Barb. 234 ; INLangum v. Brooklyn City R. R. 36 Barb. 529; Bank v. Broad- way R. R. 49 Barb. 529 ; Flynn v. Hatton, 4 Daly, 552 ; S. C. 43 How. Pr. 333 ; Ross v. Innis, 26 111. 259 ; Chicago V. Starr, 42 111. 1 74 (though see Pitts., F. W. & C. R. R. v. Bum- stead, 48 111. 221); Pitts., F. W. & C. R. R. V. Vining, 27 Ind. 513; L. & I. R. R. i^ Huffman, 28 Ind. 287; Jefferson- ville R. R. V. Bowen, 40 Ind. 545. The Scotch law is declared to coin- cide with the above by Mr. Campbell, in his work on Negligence, § 81. But this may be because he fails to take in the distinction, noticed in the text, between a straying child injured by the negligence of a heedless drivei-, and a meddlesome child jilaying with machinery which is not negligently exposed. In Brown v. E. & N. A. R. R. 58 Me. 384, Appleton, C. J., said : — . ..." If a child is of too tender an age to be permitted to go in the streets Avithout the attendance and supervision of those having him in old, a short distance from home for some wood ; that the plaintiff took some wood on his arm, and the brother took some in a basket; that they started across a street, the plain- tiff being about ten feet in front of his brother ; and that, while thus cross- ing, the plaintiff was negligently run over by the defendant. Held, that a ruling that this evidence disclosed such negligence on the part of the plaintiff's mother and brother as to prevent the plaintiff's recovery against the defendant, was incorrect. Mulli- gan V. Curtis, 100 Mass. 512. In an action against a hackman for negligently driving horses over a child four years and seven months old, and of the average ability and intelligence of children of the age of five years at- tending the public schools, who was crossing a street on his way home from school at the time of the acci- dent, the question whether the child's parents were negligent in permitting him to return from school alone, and in so doing to cross the street at the time when and place where he was in- charge, their negligence and want of jured, is for the jury. Lynch v. Smith, due care will have the same effect in 104 Mass. 52. preventing the maintenance of an ac- tion for an injury occasioned by the neglect of another as would the plain- tiff's want of care, if he were an adult." As will be seen, however, the case was decided on another point. The following decisions will serve to illustrate the summary in the text : In an action by an infant, to recover for injuries caused bv being run over 278 In this case it Avas further ruled, that on the issue whether a child four years and seven months old, and " as intelligent as the average of children in his school five years of age, but rather small for that age," who in crossing a street on his way home from school suffered an injury by the negligence of another traveller, was using due care when he was injured, the ojnnion of his school-teacher as to BOOK I.] CHILDREN. S ^ 12. a person having charge of a young child is the negligence of the child, and imputable to the child, and that there is no redress if bis capacity to exercise such care is words, the ordinary care of school- children. " It does not necessarily follow, be- cause a parent negligently sullers a child of tender age to cross a street, that therefore the child cannot re- inadmissible in evidence. It was said that if the parents of a child were not negligent in permitting him to cross a street alone, and while crossing he was injured by the negli- gence of another traveller, it is suffi- cover. If the child, without being cient to entitle him to recover for the able to exercise any judgment in re- injury, if he was using that degree of gard to the matter, yet does no act care of which he was capable, though which prudence would forbid, and a less degree than would be appropri- omits no act that prudence would die- ate for an adult to use under like eir- tatc, there has been no negligence cuhistances ; and, even if his parents which was directly contril)utory to the were negligent in permitting him to injury. The negligence of the parent cross the street alone, their negligence in such a case would be remote. But was not contributory, and he may re- if the child has not acted as reasona- cover, if in crossing he did no act ble care adapted to the circumstances which prudence would have forbidden, of the case would dictate, and the and omitted no act which prudence j)arent has also negligently suffered would have dictated, whatever was him to be there, both these facts con- his physical or intellectual capacity. curring constitute negli::;ence which Chapman, C. J., said : — directly and immediately contril)utes " If the jury find that the plaintiff to the injury, for which the defendant was of such capacity that he was in ought not to be requireil to make com- the street without negligence, cither pensation. on the part of himself or his parents, " Tliis principle was illustrated in then the question arises, what degree Munn v. Reed, 4 Allen, 431. The of care he was bound to exercise. In jjlaintiff, a small child, was bitten by Mulligan v. Curtis, 100 JNIass. 512, it a dog. It is true that the liability of was held to be a question for the jury, the owner was hj- statute. Gen. Sts. whether a boy three and a half years c. 88, § .")9. But the (juestion of neg- old might not without negligence be ligence arose, and it was held that, if trusted to go across the street, accom- the mother of the child was not guilty panied by his brother nine years old. of negligence in permitting the child Certainly the jury could not find that to play with the dog, and if the child a boy nine years old must exercise the was l)itten while using such care as is capacity of an adult. But it was iiu- usual with children of its age, the ac- plied that, if it was proper for him to tion might be maintained. But this be there, it was only necessary for liiia jirinciple is inconsistent witli the idea to exercise such cajiacity as he hail, that the child must use the discn-tion School-children who are properly sent of an adult. The instructions wliicli to school unattended nnist use such were given to the jiu-y in this case re- reasonable care as school-children can. (piiri-d a liigher degree of care than It must be reasonable care, adapted the diciilcd cases sanction; and reganl to the circumstances, or, in other is also to be had to the question whctliii' the neuligence of the plaintiff ' 270 312.J CONTKIBUTOKY NEGLIGENCE [1500K I. the child is ncghgently run over.^ On the other side it is held that though oysters are negligently placed in a river bed, it is an contributed to the injury. If the negligence of the child contributed to his being in the way of the defend- ant's horses, it contributed to the in- jury; but negligence which had no such effect would be immaterial." Steele v. Burkhardt, 104 Mass. 59, In a New York case, the plaintiff, who was ten years old, paid ferriage from New York to H., where .she was safely carried by the defendant's ferry boat. She remained on board during the return trip to Xew York and back to H., and no additional ferriage was paid by her, or asked from her. It was held, that the plaintiff could re- cover for injuries received while en- tering the ferry slip at H. the second time, and caused by the defendant's negligence. Doran v. E. R. Ferry Co. 3 Lansing, 105. So, in another case in the same state, the plaintiff, an infant twelve years of age, travelling with his mother upon defendant's cars, being unable to find a seat in the car with her, by her permission went into another, and there remained until the train reached a station; when, in the effort to leave the car and return to his mother, he received an injury, it was held by the appellate court, that it was not per se a negligent act on the part of the mother to permit him to go from one car to another under the circum- stances. Downs V. N. Y. C. R. R. Co. 47 N. Y. 83. Ihl V. The 42d St. &c. R. R. Co. 47 N. Y. 317, was an action brought to recover damages for the death of a child three years old, under the pro- visions of chapter 450, Laws of 1847, as amended h\ chapter 256, Laws of 1849. It appeared that the child killed was sent across defendant's track unattended save by a child nine and one half years old ; and was then struck by defendant's car. It was held, by the appellate court, that this was not per se such negligence as would defeat a recovery. If the deceased child, it was ruled, exercised due care, and the injury was caused solely by the negligence of de- fendant's driver, the defendant was li- able, without regard to the question whether it was negligence in the par- ents to let the child go with so young an attendant. And it was further said : Nor would negligence upon the part of so young a child as the deceased, when there was no negligence upon the part of the parents or the attend- ant, absolve the defendant from liabil- ity. " We are of opinion," said Ra- pallo, J., " that the refusal so to charge was not error, and that the judge properly left it to the jury to say whether it was negligent ' to permit the little daughter between nine and ten years of age to take the little boy to the drug store in the way she started to go.' The competency of the little girl to act as attendant of the deceased was matter of judgment. There is no positive law by which it can be deter- mined. She was not of such an ex- tremely tender age as to place it beyond a doubt that she was incompe- tent, and therefore it was proper to leave the question to the jury. See Mangum v. Brooklyn R. R. Co. 38 N. Y. 455, 459, and Drew v. Sixth Ave. R. R. Co. 2G N. Y. 49, where it was held not as a matter of law negligent in a parent to send a child of the age of eight years to school Avilhout an at- tendant. The third and fourth re- 1 Waite I'. N. E. R. C. E., B. & E. 719. 280 BOOK I.] CHILDREN. [§ 312. injury redressible by damages for a vessel to negligently disturb them.i The child, were he an oyster, would be protected ; but quests to charge were fully covered by pieces, a fragment of which struck ami the charge as given, and the refusal of injured the child. It was here held the judge was to charge otherwise than he had already charged. He had fully presented and submitted to the jury the questions of the negligence of the defendant and of the negligence of the parents of the deceased, and the grounds upon which negligence was that the railroad company were liable. P., Ft. W. & C. R. R. (:o."f. Bumstead, 48 111. 221. Still later, in Chicago & A. R. R. 58 Illinois, '22G, the evidence was that a cliild not quite five years old, and of diseased intellect, strayed to a railroad sought to be imputed to them, and had track, which was near the residence of instructed the jury that if they found its parents, in the village of Brighton, either of those questions in favor of and was seriously injured by a train of the defendant, they must render a ver- dict for the defendant. A refusal to repeat these instructions was not er- ror." In remarkable conflict is Lannen v, Albany Gas Light Co. 46 Barb. 264, where it was said, that there is " no just or legal principle which, when the infant himself is fix-e from negligence, imputes to him the negligence of the cars which passed through the village with great speed, and without sto|)ping. Tlie mother of the child had left the house but a few minutes before the ac- cident, to perform a necessary house- hold duty, leaving the child in the care of his sister, eight years of age, and on her return discovered that he had strayed to the track, and before she could recover him he Avas struck by parent, when, if he were an adult, he the train and seriously hurt. In an would escape it. This would be ... . action against the company, it was ' visiting the sins of the fathers upon ruled by the supreme court that there the children ' to an extent not contem- was no negligence on the part of either plated in the Decalogue, or in the more the mother or the injured child ; but imperfect digests of human law." that the company was chargeable with In Illinois there has been some flue- great negligence, in permitting one "of tuation. In an early case (City r. Major, IS 111. 3G0, hereafter cited), the doctrine of imputability seems to be admitted and then avoided. So subsequently, where a child four years its fastest trains to run with unabated speed through the town, where persons are liable at all times to be on the open track, and should be held responsible. It was further held, that ncirligence old being left temporarily by its mother cannot be imputed to a child un- with its sister, fourteen years of age, strayed a short distance on a pri- vate road used by the public, near a railway track, and while there an express train collided with a push car on the track, shattering the car into der five years of age, especially to one of less than ordinary mental capacity. And it was further argued that in such cases it cannot be saitl that the par- ent failed to exercise reasonable care. The same rule should not be api)liecl 1 Mayor of Colchester v. Brooke, 7 the leading American authority for this Q. B. 377; Vennell v. (iarner, 1 Cr. & kind of imputability. is ably «-riticise. nue Railroad Company,! Kfyosi, 570, ^ Holly r. Bost. (Ja.s Li-ht Co. 8 and Warner i;. Tlu" N. Y. Central Gray, 1 -'.1. Railroad Co. 44 N. Y^ 4G5. See alt-o * See .supra § SS. io«, 2H;. 287 316.] CONTKIBUTORY NEGLIGENCE [book I. apartment) in a public street where it may be hustled by pas- sengers or meddled with by idlers or children. ^ § 316. In conformity with this view, it lias been correctly held in Illinois, in a case where a city negligently left an open tank in a street into which fell a young child, negligently suffered to go at large, that the city was liable.^ child may be drowned or maimed. Such a rule of law ought to depopu- late a city of all its laboring inhabit- ants. In this, as in all other cases, it must be left to the jury to determine whether the parents of the child have been guilty of negligence in suffering the child to be in the streets. On this 1 See supra, § 112; infra, § 344. 2 City of Chicago v. Mayor, 18 111. 360. " The eighth instruction, which was refused," said Clason, J., " was this: If the jury believe that the tank in question was reasonably safe and se- cure for all such persons as ordina- rily make ifse of the streets of a city, point the court justly instructed the the city is not liable for an injury re- jury in the last instruction. The jury suiting from its insufficiency to pre- vent or guard against an extraordi- nary occurrence or accident." This instruction was asked, and, if given, would have been understood in refer- ence to the particular facts of this case, and would have been equivalent to instructing the jury that this child had no business in the streets, and that the city was not liable for negli- gently leaving the tank in such a con- dition as to endanger the lives of such children in the streets. Such, we ap- prehend, is not the law, and the court properly declined so to instruct the jury. A large majority of children living in cities depend upon the daily labor of both parents for subsistence, and these parents are unable to em- wei'e then told that they must believe, from the evidence, that the di-fendant was guilty of negligence which pro- duced the injur}-, in not keeping the tank in repair, and also that its par- ents were not guilty of negligence ; and in another part of the charge they were told that the burden of proof rested on the plaintiff to show, not only negligence on the part of the city, but also that the parents Avere not negligent. We are satisfied that the court committed no error in its de- cision of the questions of law which arose on the trial." .... See also Robinson v. Cone, 22 Yt. 213. So also where it appeared the de- fendant had placed upon the sidewalk ploy nurses, who may keep a constant a number of barrels and counters, in a and vigilant eye momentarily upon their children ; and we cannot hold, as a matter of law, that every time a child, four years of age, steps into the street unattended, the mother is guilty of such, negligence as would authorize every reckless or careless driver to run over and trample it down with impunity, or as would authorize the city to expose ti'aps and pit-falls in everv corner of the streets, in which a 288 tottering condition, occupying a con- siderable portion of the walk, and in- terfering with a safe passage after night. One of the counters was eighteen or twenty feet long, and a boy of twelve years, in going from his work to dinner, in passing put his hands upon this counter, apparently making a motion to jump on it, when it fell on him, fracturing his leg. It was ruled, that the necrligence of the BOOK I.] CHILDREN. [§ 319. § 317. In an English case,^ where the defendants placed the shutter of their cellar against the wall of a public street, and the dress of a child who was playing in the street and jumping off the shutter, caught the corner of the shutter which fell upon and injured him, it was ruled that the defendants were not liable to an action by the child ; the ground of the decision being that the leaning of a shutter against a wall on a public street is not in itself negligence.^ § 818. So, in a case in Connecticut,^ where the defendant set up a gate on his own land, by the side of a lane, through which the plaintiff, a child between six and seven years of age, with other children in the same neighborhood, were accustomed to pass from their places of residence to the highway and vice versa ; the plaintiff in passing along such lane, without the permission of any one put his hands on the gate and shook it, in consequence of which it fell on him and broke his leg ; in an action for this injury, the court instructed the 'yxx^ that if the defendant was guilty of negligence, he was liable for the injury, unless the plaintiff in doing what he did was guilty of negligence or mis- behavior, or of the want of proper care and caution ; and in de- termining this question they were to take into consideration the age and condition of the plaintiff, and whether his conduct was not the result of childish instinct and thoughtlessness. After a verdict for the plaintiff, it was held that the charge* was unexcep- tionable. The result is to be sustained on the hypothesis that the jury found that the gate, in view of the fact that it fenced a road where children were constantly passing, was not built with sufficient care. § 319. On the other hand, in a case in ]\Iaine,^ where the defendant in placing the obstructions was killed by the fall of a counter on the sidewalk, and permitting them leaning against a fence, was, unilcr the to remain there for several weeks, circumstances of this case, to be was much greater than the careless- greater than that of the city in rofer- ness of the boy. Kerr v. Forgue, 54 ence to the counter. City of Chicago 111. 482. V. Starr, 42 111. 174. Similar in prin- 1 Abbott u. Macfie, and Hughes v. ciple : City of Chester r. rurtor, 4 7 Macfie, 33 L. J. Ex. 177. 111. GG. The decision is right, though 2 A similar case is reported in Illi- the reason wrong. nois, where it was held that the negli- « Birge r. (Jardiner, 19 Conn. 507. gence of parents in suffering a child * Brown r. E. & N. A. R. U. Co. to stray away from home, whereby it 68 Me. 384. 19 289 § 320.] CONTRIBUTORY NEGLIGENCE : [BOOK I. evidence was that a child of nine years, in the daytime, jumped from a sidewalk, lawfully constructed by a railroad company on the side of its railway bridge, upon a properly constructed draw, when the same was being lawfully closed, that no liability attached to the road. And the conclusion is correct on the prin- ciple above expressed. If the" railroad company, in view of the kind of travel likely to pass on the walk, exercised due prudence in its construction, no liability for negligence could arise. " The plaintiff," said Appleton, C. J., " was nine years old. K of age to be permitted to go in the streets without parental or other supervision, he must be held responsible for a degree of care and prudence proportionate to his age. He was passing the railroad bridge. The draw had been opened. When he reached there it was closing. The defendants were in the exercise of their indis- putable right to open and close. The plaintiff saw that every second rendered his passage less dangerous, and that if he would but wait, it would be accomplished without risk, or even the pos- sibility of danger. The defendants were in no respect negligent. They were making as rapidly as they could the passage each moment the safer, and were not bound to anticipate the folly or the rashness of others. If they had stopped the motion of the draw, the danger of the plaintiff, if he attempted to leap, would have been increased. The defendants were not required by the statute to have a flag or flag-man stationed at the draw to give notice. If they had done so, neither the flag nor the flag-man could have given him greater information or clearer warning than his own vision gave him. It was in the daytime. And notice was unnecessary when all was known without notice. His companions leaped upon the approaching draw. He followed, and, failing in his attempt, was caught in the draw and injured. While the grave injury the plaintiff received may be regretted, no reason is perceived why the defendants should be called upon to afford compensation therefor, when they were without fault and in the due exercise of their chartered rights." § 320. The same reasoning prevents us from accepting as authoritative an English case,^ where the evidence was that the defendant exposed in a public place for sale, unfenced and with- out superintendence, a machine which might be set in motion by any passer-by, and which when in motion was dangerous. The 1 Mangan v. Atterton, L. R. 1 Ex. 239. 290 BOOK I.] CHILDREN. [§ 322. plaintiff, a boy four years old, by direction of his brother, seven years old, placed his fingers in the machine, while another boy was setting it in motion, and the fingers were crushed. It was held that the plaintiff could not maintain an action. But why ? Was it not negligence to leave a dangerous machine in a public place, exposed to the usual throng of visitors and passengers ? Certainly the rule is that a person so exposing in such a place anything likely to prove dangerous if touched or jostled, even by children, is liable for the consequences.^ § 321. So, also, we must refuse assent to a New York case, where a child three years of age was injured by falling from a piazza — a part of the private premises of the family in a tene- ment house, — known to the child's parents to be defective and insecure, by reason of natural decay ; and where this was held a case of contributory negligence on the part of the parents in charge of a child too young to exercise discretion to avoid such a danger.2 It may have been that the defendant was not responsible for the repair of the piazza ; and if so no n(;gligence was imputable to him. But if he owned the tenement house, filled with families, and was bound to keep it in due repair, no negligence of parents in permitting a child to run out on the piazza could protect him, if through his fault the child fell from the piazza. He knew to what use the house was to be put, and he was bound to keep it in a suitable condition for such use.^ § 322. More difficulty arises, however, in respect to a much criticised Massachusetts case,* where it was held that a child living in her father's house could not recover from a gas company for an injury occasioned to her at night by the gas escaping from the company's pipes in the street opposite the house (over which pipes neither child nor father had any control), without proving ordinary care both on her own part and on the part of her father ; and it was further held, that evidence of the father's neglect to give to the company notice of the leak seasonably, so tliat it could be repaired before night, was proper for the consideration 1 See this illustrated, supra, § 112 ; dcr, 18 Ohio (N, S.), 399 ; Lviu-h v. and see R. R. i^. Stout, 17 Wall. G57. Smith, 104 Mass. 52. 2 Flynn v. Hatton, 4 Daly, 5.'i2 ; * Holly v. Boston Gas Li-ht Co. 8 reported in full in 43 How. Pr. ;}3.'}. Gray, 123. See comments in 4 Am. 8 Sec also Bronson v. Southbury, Law Rev. 405. 37 Conn. 199 ; B. & I. R. R. v. Sny- 291 § 323.] CONTRIBUTORY NEGLIGENCE : [BOOK I. of the jury, as tending to show such want of care as would de- feat the action. If it is the duty of a prudent gas company only to repair a leak upon notice, then there was no breach of duty by the defendant in this case, and hence no liability for injuries occurring from leakage. But this was an ordinary issue of culpa levis, with which the question of imputability had nothing to do.i § 323. Where the plaintiff's negligence is remote and the de- fendants proximate; or, in other words, where the plaintiff's negligence tvas a condition of the injury hut not its juridical cause. — Here again we must fall back on the positions already taken with regard to juridical causation.^ A person, it has been seen, is juridically the cause of an injury, if his act (or omission), sup- posing that there is no intervention of disturbing independent moral agents, would be, according to the usual course of events, followed by such injury. This, as is shown by a distinguished contemporary German jurist,^ is the true application of Aris- totle's exposition of causation, which is accepted by the Roman jurists, and is equivalent to the distinction between proximate and remote causation, as expressed by Anglo-American law. It is not enough to say, to apply this definition to negligence, that if the injury would not have occurred had it not been for the plaintiff's negligence, then the plaintiff's negligence is to be re- garded as the cause of the injury. Of multitudes of antecedents can it be truly said, that if they had not existed the injury would not have occurred ; yet of how few of such antecedents can it be said that they juridically caused the injury. A gas company, to take one of the cases which the present discussion presents, neglects to close a leaking pipe, and in consequence of the leakage the plaintiff is injured. Had the plaintiff not been in the town at the time, — had the plaintiff never been born, — had there been no gas in the particular pipe, — had there been no gas com- pany in the particular town, — had gas never been invented, — then the injury would not have occurred. That the plaintiff was in the town at the time, — that the plaintiff existed, — that there was gas in the leaking pipe, — that there was gas in the town, — that there was gas anywhere, — all these are conditions 1 See supra, § 45. menhange, Leipzig, 1871. See supra, 3 See supra, § 73. § 302. 3 Bar, Lehre von Causalzusam- 292 BOOK I.] WHEN plaintiff's NEGLIGENCE IS REMOTE. [§ 325. of the plaintiff's injury, without which it would not have ex- isted ; but no one of these is a juridical cause of the injury. To constitute a juridical cause, therefore, it is not sufficient to say that it is enough that without the existence of the condition in question the injury would not have taken place. § 324. Nor, advancing a step further, can we say, as has already been shown,^ that a condition involving negligence on part of the defendant is to be regarded as a juridical cause of the injury. The negligence, to make it a juridical cause, must be such that by the usual course of events it would result, unless independent disturbing moral agencies intervene, in the particu- lar injury. It may be negligence in me to cross a railroad on a level when by going a mile round I could cross on a bridge. Yet this negligence, in case I am struck by a train, is not the juridical cause of the collision, if I keep a good look-out when I reach the road. I may negligently leave my goods in a ware- house ; but this is not the juridical cause of their destruction, if such destruction comes, not as a natural and usual result of my negligence, but through the negligence of another who sets fire to the warehouse. In other words, to put the same doctrine into the language made familiar to us by the adoption of the terms " proximate " and " remote," my " remote " negligence will not protect a person who by " proximate " negligence does me an injury. § 325. The Roman law, as expressed in the Code and ex- pounded by modern European jurists, takes this distinction : Dolus (and by this we may understand gross negligence as well as fraud) culpa pejor est ; and again, to take a maxim of schttlastic origin, injuria non excusat ijijuriam? It is true that the Roman law recognizes certain aspects of what we call contributory negli- gence. A man, as has just been said, who puts himself in a place where an injury in the usual course of events will occur to him, cannot recover damages from the person through whom such injury proceeds, supposing the latter by duo prudeuce c(nild not have avoided inflicting the injury. So a person who knowingly contributes to a wrong cannot recover from a co-contributor. But he who is unconsciously negligent is entitled to ri'dress for all injuries inflicted on him by another, when by tlie latter the inflic- ^ Supra, § 97. 2 Soo this (Kfomlt-iJ in Alston v. Herring, II Exch. 822. 293 § 328.] CONTRIBUTORY NEGLIGENCE : [BOOK I. tion of sucli injuries could have been avoided by the exercise of the diligentia honi et diligentis patrisfamilias. § 326. From this rule the English law does not materially de- part. On the one side it refuses relief in all cases where the plaintiff may be viewed as consenting to the injury.^ On' the other side, to adopt the language of a learned judge, " 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 other words, if the plain- tiff's negligence was such as, in the ordinary process of things, by the mode of causation already stated, to have led to the in- jury, the plaintiff loses his right of suit.^ § 327. Of the principles thus expressed the following illustra- tions may be selected : — The plaintiff negligently left his donkey in a highway, tied by the fore feet. The defendant, when he could by ordinary care have avoided the donke}^, drove over it in broad daylight and killed it. Had this occurred in the night-time, then such a result may be spoken of as one which in the usual course of events would have been likely to have occurred, and which a prudent driver could not have ordinarily avoided. But it is not in the ordinary course of events that a prudent driver, on a wide highway, in broad daylight, should strike down a donkey whose power of es- cape was thus obviously limited. And so it was held that the plaintiff's negligence in thus leaving the donkey on the highway could not be set up by the defendant as a defence.* § 328. So where oysters were negligently left in the channel of ^ Carr v. Lancashire & Yorkshire & Gr. 568 ; Schloss v. Heriott, 14 C. Ky. Co. 7 Ex. 707; Austin v. Man- B. N. S. 59; Senior u. Ward, 1 E. & Chester, &c. Ry. Co. 10 C. B. 454 ; E. 385 ; Witherly v. Regent's Canal McCawley v. Furness, L. R. 8 Q. B. 59. Co. 12 C. B. N. S. 2 ; Wyatt v. Great 2 Parke, B., in Bridge v. Grand West. R. C. 6 B. & S. 709, cited by Junction R. C. 3 M. & W. 248; cited Broom, p. 689; and cases cited supra, in Broom's Com. 688; Radley v. Lon- § 300. don & N. W. R. R., L. R. 9 Exch. 71 ; s Lyg^ y. Newbold, 9 Exch. 302 ; Davies v. Mann, 10 M. & W. 548 ; Clayards v. Dethiok, 12 Q. B. 439; North V. Smith, 10 C. B. N. S. 572; Thompson v. N. E. R. R, 2 B. & S. Martin v. Great North. R. C. 16 C.B. 106; and cases cited supra, § 300. 179 ; Cornman v. East. Co. R. C. 4 H. * Davies v. Mann, 10 Mee. & W. & N. 781 ; Marriott v. Stanley, 1 M. 549. 294 BOOK I.] REMOTE NEGLIGENCE OF PLAINTIFF. [§ 331. a navigable river, it was held that the officers of a vessel, know- ing them to be there, were not justified in running against and destroying them, when there was room to pass without so doing.^ § 329. So it is no defence to a suit for damages in a collision, that the plaintiff was at the time in a place where he ought not to have been, if the collision could have been avoided by the de- fendant in the exercise of the ordinary prudence which belongs to a good business man in his particular sphei'e.^ § 330. So it is no defence to an action for negligently driving against the plaintiff's wagon that the plaintiff placed his horse and wagon in a street in a city transversely to the course of the street, while loading articles which a city ordinance permits to be loaded only in vehicles placed lengthwise and as near as possible to the sidewalk.^ § 331. So, generally, the fact that plaintiff, at the time he suf- fered injuries to his person or property from the negligence of defendant, was doing some unlawful act, will not prevent a recov- ery, unless the act was of such a character as would naturally tend to produce the injury. Thus, the fact that the plaintiff was driv- ing his cattle to market on Sunday, in violation of the statute, when they were injured by the breaking down of a defective bridge which the defendant was bound to maintain, would not prevent a recovery upon due proof of defendant's negligence in constructing and maintaining such bridge.^ 1 Mayor of Colchester v. Brooke, 7 offence, the doin^ of any manner of Q. B. 37 7, labor, business, or work on that clay, 2 Greenland r. Chapin, 5 Exch. 243; except only works of necessity or Vennell u. Garner, 1 Cro. &Mee. 21; charity. R. S. c. 183, § 5. It was Tuff y. Warman, 2 C. B. (N. S.) 740; upon this ground the nonsuit was di- 5 C. B. (N. S.) 573; Inman v. Rech, rected by the court below, and the L. R. 2 P. C. Ap. 25. point thus presented, that the unlaw- 8 Steele v. Burkhardt, 104 Mass. ful act of the plaint iff was neijli^ence, 59, or a fault on his part contributini; to * Sutton V. Wauwautosa, 29 Wise, the injury, and whioh will |)reclue rules enter on his way to the upper rooms, have not been regarded as appli<-al)le ?o where he had lawful occasion to go, as to change the common law beyond was held entitled to an action. But their plain purpose. They have been 307 § 344 a.] CONTRIBUTORY NEGLIGENCE : [book I. § 344 a. Negligence hy agents imputable to principal. — A prin- cipal who acts through an agent is, as has been seen, Hable tor his agent's neghgence when in the sphere of his service.^ And this applies to the doctrine of contributory negligence.^ construed libcr;illy, l)ut they have been held to be alterations and not afiir- niations of the common law, which did not hold any one liable for the use of dangerous machinery, merely because it was dangerous to approach it. In Coe r. Piatt, 5 L. & Eq. 491, affirmed in 11 L. & Eq. 556, a young woman being in a factory was injured by the machinery. The statute was passed for the safety of young people and children employed in woi-king fac- tories, and while extending its protec- tion to all other persons, only covered in terms the case where the machinery was in use for manufacturing. It was held in both courts that while the mill was not so employed the statute did not apply ; and as there was no com- mon law liability for the damage, there could be no recovery. "In Lygo V. Newbold, 24 L. & Eq. 507, a woman whose goods were in charge of a freight carrier was per- mitted by his cartman, while on the way, to get up and ride with him on the load. The cart breaking down, and an injury occurring both to her person and to the goods, it was held she could not recover for the personal injury be- cause she had no right upon the cart beyond the driver's permission, which was no contract, as his emjjloyment was for carriage of goods only, and the act was merely permissive and of favor. Pollock, Ch. B., intimated that as her getting upon the cart without authority was a cause of the accident, she might even be liable to an action of trespass herself for the results of her act. But all agreed that she could have no recovery beyond the injury to the goods. So in Southcote V. Stanley, 38 L. & Eq. 295, a visitor in a house was not held entitled to recover for injuries from his opening a defec- tive glass door; the court distinguish- ing between setting a pitfall with an intention to injure, and the result of a neglect whereby injury happens in such a case. "In Stone v. Jackson, 32 L. & Eq, 349 (S. C. 16 C. B. 199), where a woman, going across private property from one highway to another, fell into an excavation, and the case was allowed to go to the jury on the sug- gestion of the judge that the way where she went might possibly be a public footway, it was held the evi- dence had no tendency to show any public right, and the verdict was set aside. " The case of Lunt v. London & N. W. R. W. Co., L. Pt. 1 Q. B. 277, was somewhat like the case in 10 Al- len, 368. A person in a private way on one side of the track had occasion to go into a public way on the other side, which was guarded by a gate in charge of a gate-keeper, and the keeper, who was in defendant's employ, being asked if the line was clear, said ' Yes, come on,' and opened the gate. Plaintiff drove his cart over, and it was struck by a train. It was held, the keeper, as the authorized agent for that purpose, had invited plaintiff to cross, and the company was responsi- ble. In deciding the case, care was ^ See supra, § 157. 308 2.Schular v. Hudson Riv. R. R. 38 Barb, 653. BOOK I.] TRESPASSERS. [§ 347. II. CONTRIBUTORY NEGLIGENCE AS TO SPECIAL CASES. § 345. 1. Trespassers. — It lias just been said that there is an important distinction to be taken between the case of a trespasser who is wantonly injured when trespassing, and a trespas.ser who, by his own meddlesomeness in interfering with an agency comparatively innocent, brings injury on himself. This proposi- tion will be now more fully illustrated. § 346. A trespasser., notwithstanding his trespass, may have redress for negligent injuries inflicted on him. — In such case the maxim applies, injuria non excusat injuriam.^ Even though he is liable to an action for the injury which he does, he does not necessarily forfeit his right of action for an injury which he has sustained,^ ex. gr. by falling into a hole newly excavated on de- fendant's 'premises, adjoining to a public way, and rendering it unsafe to persons lawfully using the way with ordinary care.^ §347. Spring-guns. — An illustration of this principle may be found in the case of spring-guns. The owner of open land has no right to plant in it spring-guns by which ordinary tres- passers may be wounded.* Hence, in an English case,'^ the de- fendant, for the protection of his property, some of which had taken not to decide what the conse- Keith v. Piiikhani, 43 ^le. 501. See quences would have been had the gate- other cases cited supra, § 323 ct seq. keeper not been acting in the Hne of and infra. § 354, 388. his employment, when the duty to warn might, as intimated, have been one of humanity and not of agency." 1 Alston V. Herring, 11 Exch. 822; Dimes v. Petley, 15 Q. B. 27fi; Rub- erts V. Rose, L. R. 1 Ex. 82; Davies i-. Mann, 10 M. & W. 546; Augusta, &c. R. R. V. McElmurray, 24 Georg. 75 ; R. R. V. Stout, 1 7 Wall. 659 ; Reynolds v. Stout, 2 N. Y. Supr. Ct. 644 ; Ilott V. Wilkes, 3 B. & A. 304 ; Birge i-. Gai'dincr, 19 Conn. 507; IMorrissy v. Wiggins Ferry Co. 43 Uo. 380. Thus a passenger who insisted on riding on the outside of a coach, though re- quested by the driver to take his seat inside, was held entitled to recover for injuries caused by the negligence of the driver, the position of tlie plaintiff not havinjr contributed to the accident. 2 Degg r. Midland R. R. 1 II. &: X. 780. 8 Barnes r. Ward, 9 C. B. 392, 4 20; In re Williams v. Groucott, 4 B. & S. 149, 157; Binks v. South Yorksbire R. C. 3 B. & S. 244; Ilonnscll v. Smyth, 7 C. B. N. S. 731; IIardcawing the last, where the i)laintiir in the a mere license has been inferred : dark fell down an ordinary staircase, liolch v. Smith, 7 II. & N. 7.16 ; 'M L. he was nonsuited. Wilkinson v. J. Ex. 2(»1 ; Sullivan i\ Waters. Irish Fairrie, 1 Ilurlst. & C. 633.] In the C. L. R. 460 ; Gautret r. Kgerton, L. case of Axford v. Prior, C. P. 14 AV. R. 2 C. P. 371. R. 611, a person coming to see a I'riend ^ L. R. 3 C. P. 326. at a public-house fell through a hole ^ Southeoto v. Stanley, 1 H. \ N. in the parlor, which was being re- 247. 813 § 353.] CONTRIBUTORY NEGLIGENCE : [BOOK I. necessuiy only to refer to prior sections where the position as just stated is vindicated at length.^ § 351. Otvner of premises not liable for damages caused hy incidental imperfections of paths or buildings on tvJiich trespassers intrude. — No man can be expected to make his house or grounds a thoroughfare ; and lience there- is no liability on my part for damages which an intruder may sustain from decayed floors, or defective paths on which he may stumble when trespassing with- in my inclosure.^ Nor does the fact that his mission was inno- cent make any difference. Hence it has been correctly held, where the clerk of a retail merchant went down into a cellar that was being excavated by the landlord of the merchant, to recover a lady customer's hat, that for an injury to him by a falling wall he could not recover from the party doing the work, nor from the landlord. ^ § 352. Visitors entering or leaving premises by p)assages other than those alloived. — A person visiting another's premises must go by the way such other designates. To attempt to approach or leave by any other way than that designated makes the visitor, if there be anything to indicate that such other way is not in- tended to be used, a trespasser ; and in case he is injured by the imperfection of such passage, he cannot recover damages from the owner.^ § 353. 2. Passengers on raihvays. Reciprocal relations of car- rier and passenger. — It will be hereafter seen that the element of insurance, which by Anglo-American law enters into contracts by common carriers for the transport of goods, does not touch such contracts for the transport of passengers. It will also be shown that the duty of the common carrier of passengers is that of the bonus et diligens paterfamilias., in other words, as has been seen,^ it is the duty of a good business man skilled in the particular duty he has in charge. The duty of the passen- ger is reciprocal. He must conform to the rules tlie carrier prescribes for the safety of the common enterjDrise. He must do 1 See supra, § 109, 110, 112, 315, 168; Hounsel v. Smitli, 7 C. B. (N. 340,3-14. S.) 738; Elliott v. Pray, 10 Allen, 2 Infra, § 824-5. See Gautrat v. 378; Zeebisch v. Tarbell, 10 Allen, Egerton, L. R. 2 C. P. 371. 385 ; Sweeney v. R. R. 10 Allen, 368; s Lamparter v. Wallbaum, 45 111, Bancroft v. R. R. 97 Mass. 275. See 444. Stratton v. Staples, 59 Me. 94. 4 Chapman v. Rotliwell, E., B. & E. 6 Supra, § 31. 314 BOOK L] railway PASSENGERS. [§ 354. nothing, and neglect nothing, which is incumbent on him so far as concerns the maintenance of such safety. For any neglect on his part which may injure the carrier or fellow-passengers, to come to the subject immediately before us, he is liable ; and for injuries to himself, caused by his own neglect, he cannot recover from the carrier.! When we come, however, to the question how such neglect, or " contributory negligence," is to be defined, a series of subordinate distinctions arrest us, which will now be considered. § 354. Trespassers. — Is a trespasser in a caiTiage subject to a different rule in this respect from a pay passenger ? No doubt there is authority for maintaining that he is.^ Certainly if a tres- passer, instead of taking his seat within the carriage, in sucli a way that he can be seen by the carrier, secretes himself in some part of the carriage not mtended for passengers, he cannot, if he be injured when in such a position, claim damages from the car- rier. A carrier, in undertaking to carry passengers safely, under- takes to carry them safely if they place themselves under his direction in particular places prescribed for the purpose ; and he will not be held liable for damages accruing to an interloper, who, unnoticed by him, hides in the crevices of a locomotive or in the hold of a sliip. But if a trespasser take his seat openly in a carriage, in the place assigned to passengers generally, there is no reason why a different standard of care should be applicable to him than is applicable to other passengers. Waiving for the present the point elsewhere discussed, that even a trespasser, sup- posing him to continue such, is not withdrawn from the protection of that law which requires that no man shall negligently injure another,^ the carrier, if he permits such trespasser to continue in the carriage, cannot regard him, after such permission, as a tres- passer. The carrier has a right to expel the trespasser at once from the carriage. If the carrier omits to do this, and if the person in question remains voluntarily with the carrier's assent, then the trespass passes into a quantum meruit conti'act of can-iage. On the one side, tlie person so entering the carriage is bound to the carrier for reasonable pay for the carriage. On the other side, the cari-ier is bound, from the time he assents thus to cany 8uch 1 Sullivan V. Phil. & Road. R. R. - Ly-o v. Newbold, 9 Excb. 302. 6 Casey, 234; Penn. R. R. v. Zol)e, But see supra. § 345, 33 Pc-nn. St. r)2."); Mi-DouaM v. Chic. » Sec supra, § 345. &N. W. R. R. 26 Iowa, 121. 815 § 355.] CONTRIBUTORY NEGLIGENCE : [BOOK I. person, to exercise towards him the diligence, prudence, and skill of a good carrier in that particular kind of transport ; in other words, the particular kind of diligence, prudence, and skill which the carrier is bound to exercise towards all other passengers. Nor can any other rule be adopted without great practical inconven- iences. Who is a trespasser ? Is "a person a trespasser who, in neglect of the rules of the company, postpones buying his ticket in the ticket-office ? Is a person a trespasser who, relying on the supposed good-will of the company, takes his seat hoping to slide through without paying fare ? Is it a trespass to enter and remain in a car expecting to pay when required? If not, who can decide whether such exj^ectation may not have been in the breast of every one who takes his seat without paying in the car ? 1 Because, therefore, («) no one can, without liability, in- jure by his negligence those specifically and with notice to him- self under his charge, no matter how ill may be their deserts ; (5) the carrier, who, instead of expelling a trespasser, per- mits him to remain in the carriage, enters into a contract of common carriage with such person ; and (c) there is no test by which we can distinguish the trespasser thus taking a seat in the carriage from the bond fide traveller who expects to pay when re- quired, we must hold that in such case the trespasser, whom the carrier does not expel from the carriage, stands, so far as concerns protection from neglect, on the same footing as the ordinary pas- senger.^ § 355. Free passengers, — Is a free passenger to be placed in a different position, so far as concerns his rights to protection from neglect, from a pay passenger ? This question, also, was at one time answered in the affirmative ; the courts being led astray by the mistaken view of mandates which will be hereafter pointed out.^ But there is now an almost uniform acquiescence 1 For instance, it cannot be ques- own request, the same care is to be tioTied that a person who by mistake used in putting liim out as in putting gets on a passenger car other than the out any other passenger. Col., Chic, one he intended to take passage in, is & Ind. Cent. R. R. v. Powell, 40 Ind. a passenger on the car he is in, and is 3 7, entitled to the protection the law gives 2 ggg Y\i\\, & Read. R. R. v. Derby, to other ijassengers. The company is 14 How. U. S. 468; Wilton v. Middle- entitled to recover for the distance it sex R. R. 107 Mass. 108 ; and cases carries him, and is bound to treat cited infra, § 641. him with the same care as other pas- s See infra, § 485, 501, 641. sengers. When he is put out at his 316 BOOK I.] RAILWAY PASSENGERS. [§ ^oQ. in the true view that a person who undertakes to do a service for another is hable to such other person for want of due care and attention, — the diligentia of the bonus et diligens j)aterfa?7iiUa8, — in the performance of the service, even though there is no consideration for such undertaking.^ Or, as the question is else- where put, the confidence accepted is an adequate consideration to support the duty.^ Eminently is this the case with what are called " free " passengers on the great lines of common carriage. As has been already observed, there is, in such cases, not merely confidence tendered and acce})ted, but some sort of business con- sideration, though this be a mere courteous ijiterchange of accom- modations. For these and other reasons noticed under the last head, the carrier is bound to exhibit the same diligence and skill towards passengers of this class as he is to passengers who pay money for their tickets.^ § 356. Even supposing that the passenger is passed " free " by mistake, he is entitled, in case of injury by negligence, to recover. In England, for instance, railroads are by statute required to carrv, in certain trains, children under three vears of age Avithout ^ See remarks of Ames, J., in Gill V. Miiklleton, 105 Mass. 479; citing Benden v. Manning, 2 N. H. 289 ; Tliorne r. Deas, 4 Johns. R. 84 ; El- see V. Gatwood, 5 T. R. 143 ; Shields V. Blackburne, 1 H. Bl. 158. 2 Smith's Leading Cases, Gth ed. 193, adopted in Broom's Com. 680; infra, § 438, G41. 3 Infra, § 436-37 : Collett v. L. & N. ^y. R. K. 16 Q. B. 189 ; Phil. & Read. R. R. I'. Derby, 14 How. U. S. 468; New World V. King, 16 How. (U. S.) 464 ; Wilton V. Middlesex R. R. 107 Mass. 108; Nolton v. West. R. R. 15 N. Y. 444 ; Gillenwater v. M. & I. R. R. 5 Ind. 540 ; Ohio & Miss. R. R. v. Muhl- ing, 30 111. 23. A drover, travelling with a free pass, for the purpose of taking care of his stock, has been by the supreme conrt of the United States expressly ruled to be a passen- ger for hire. N. Y. C. R R. v. Lock- wood, 17 Wall. 357; 1 Am. Law T. R. (N. S.) 21 ; so also Penn. R. R. f. Henderson, 51 Penn. St. 315. Union Pac. R. R. l: Nichols, 8 Kansas, 505, can only be sustained on the ground that the alleged '• free " passenger was a servant of the company. In that case, where the company was transport- ing Ireight and messengers for an ex- press company, and a person not in the employ of the express company went into the baggage car with the regular express messenger, not as a ])assengcr, hut for the ])urj)osc of learning the route, and assisted the regular express messenger along the route, and tlie conductor of the train not knowing the facts, but suj)posing such i)erson to be an exj)ress messenger in the em- ploy of the express company, allowed him to ride without paying liis fare, and the baggage oar turned over and the jterson in (juestiun was injured ; it was held in an action by sucii person against the railway company for dam- ages for sudi injuries, that the plain- tiff was not a j)assengcr. nor entitled to the rights of a passenger. 317 § 358.] CONTRIBUTORY NEGLIGENCE : [BOOK I. charge, and are entitled to half the fare charged for an adult in respect of all children between tliree and twelve years of age. The plaintiff's mother, carrying in her arms the plaintiff, a child of three years and two months old, took a ticket for herself by one of these trains on the defendants' railway, but did not take a ticket for the plaintiff ; in the colirse of the journey an accident occurred through the negligence of the defendants, and the plaintiff was injured. At the time the plaintiff's mother took her ticket no question was asked by the defendants' servants as to the age of the child, and there was no intention on the part of the mother to defraud the company : it was held by the queen's bench that the plaintiff was entitled to recover against the defendants for the injury he had received.^ § 357. Agreement to save carrier harmless. — It has been ruled that a passenger who receives a free passage, on a contract that he will himself assume all risks of accident, and that the com- pany will not be liable for injuries to him occurring through negligence of itself or its servants, cannot recover damages from the company for injuries sustained by him through its servant's negligence.^ In Pennsylvania it has been held that such a con- tract is no defence to an action for injuries to the person caused by negligence. The contract, however, before the court, was not gratuitous, the injured person having a drover's ticket, which the court held was given for a valuable consideration.'^ But on the general policy of the law, it is hard to see how such contracts can be sustained. It would be barbarous to say that because a passenger agreed to be neglected, a railroad company would be justified in applying to him otherwise than carefully the tre- mendous agency of steam."^ § 358. A passenger standing with due care on the platform of a horse car, invited there by the driver and without paying fare, may recover from the company for injuries caused by the driver's negligence.^ i Austin V. Great W. R. R., Law 21 Ind. 48 ; Illinois Cent. R. R. v. Rep. 2 Q. B. 442. Reed, 37 111. 484. 2 Kinney o. Central R. R. 34 N. J. ^ Penn. R. R. v. Henderson, 51 (5 Vroom), 513 ; .S:. C. 3 Vroom, 407; Penn. St. 315. Wells V. N. Y. Cent. R. R. 24 N. Y. ^ See cases cited infra, § 588, 641 ; 181 ; Perkins v. N. Y. C. R. 24 N. Y. Jacobus v. R. R. (S. C. Minn.) Cent. 208; Welles v. N. Y. C. R. 26 Barb. L. J. July 30, 1874. 641 ; Indiana Cent. R. R. v. Mundy, ^ Wilton v. Middlesex R. R. 107 318 JMass. 108. BOOK I.] RAILWAY PASSENGERS. [§ 360. § 359. Passengernot chargeable with remote negligence. — This topic, in its general relations, has been already discussed,^ and it has been shown that he Avho negligently injures another to whom he owes a specific duty, cannot defend himself on the ground that the party so injured came negligently -within the range of such duty. This doctrine is peculiarly applicable to the engagements of a common carrier, and as to these it may be generally de- clared that when the proximate cause of the injury to the plain- tiff is the carrier's neglect of duty to the plaintiff, the carrier cannot defend himself by setting up such antecedent negligence of the plaintiff as is not a direct and immediate cause of the in- jury .2 § 360. Passenger, leaning out of a carriage u'indow. — Is a passenger who is injured when leaning out of the window of a railroad carriage chargeable with such contributory negligence as precludes him from recovery ? In other words, by so leaning out of the window does he expose himself to risks winch the carrier does not undertake to cover ? Certainly, in view of the closeness with which cars on double tracks and switches must necessarily pass to each other, as well as of the contingency of other objects being closely grazed, the carrier cannot be viewed as undertaking to protect the passenger from collisions except in the space occu- pied by the car. It is true that for a carrier to permit his road to be so constructed that his carriage passes within only an inch or two of a tunnel wall, or of trains on a parallel track, may be such negligence as will make him liable for damages to a passen- ger who, leaning perhaps an inch out of the window, is injured by striking against the object within whose close proximity the car is thus brought.^ It may in such case be well argued that no 1 See supra, § 130, 134,335. a passenger allows his arm, which is 2 See § 335 et. aeq. ; Chic, B. & Q. resting on the sill of a car wine, 23 Penn. St. 318 ; Jacol)us V. R. H., Cent. L. J. July 30, 1874 ; Alb. L. J. Aug. H, 1874. 02.3 § 3G9.] CONTRIBUTORY NEGLIGENCE : [BOOK I. therefore, in such a case, a question of fact, how far the position taken by the plaintiff was thus exposed.^ § 367. In New York, by statute, a plaintiff who stands on a platform in disobedience of express notices, and unless forced to by the crowding of the cars, cannot recover for injuries sus- tained by the negligence of tlie company. It has been held, that this statute does not apply to a passenger to whom the con- ductor had not assigned a seat in the car, although there were seats remote from the place where he entered. ^ In an Illinois case, the evidence was that the plaintiff, who was one of a funeral party who took passage upon a train to go a distance of tvrelve miles, was standing upon the steps of the platform of one of the cars, holding on to the railing, when the conductor came along collecting fare. In making change for a bank note which the passenger paid for his fare, the wind carried away the paper as it was passing from the hand of the conductor to that of the passenger. The latter, in attempting to regain it, when standing on the edge of the platform or step, lost his foothold and fell against an embankment, and Avas thrown back under the cars and killed. The cars were quite full, but there was standing room in all of them. It was rightly held the company was not liable.'^ § 368. Passiyig from car to car when in motion. — This, if followed by an injury distinctively attaching itself to the plain- tiff in consequence of such exposure, bars his recovery. Yet if with the permission of the conductor he thus passes from car to car, on some proper errand, this may be regarded as an inciden- tal risk of the duty of common carriage assumed by the carrier.'* § 369. G-etting on or off a train 7iegligently. — To get on a train when in motion, without invitation and without necessity caused by the company, is negligence which precludes a person from recovering from the company damages for injuries sustained by him in the attempt.^ If, however, the officers of the train 1 Johnson v. W., C. & R. R. R. Co. Barb. 532. See Marquette v. Chic. & 70 Penn. St. 357. ]S\ W. R. R. 33 Iowa, 5G3 ; Galena v. 2 Willis V. Long Island R. R. 34 N. Chic. R. R. 15 111. 468. y. 6 70. ^ Knight v. Ponchartrain R. R. 23 3 Quinn v. I. C. R. R. Co. 51 111. La. An. 4G2: Hubener r. X. O. &c. 495. R. R. 23 L. An. 492 ; Johnson v. W., 4 .Mclntyre v. N. Y. C. R. R. 43 326 BOOK I.] RAILWAY PASSENGERS. [§ 372. invite a passenger to board the train when in motion, the neg- ligence is to be imputed to them.^ § 370. Negligence in getting off a train may be viewed in a variety of aspects, some of wliich will be now noticed. As a general rule it is negligence for a passenger to alight in a time and way not prescribed by the company.^ § 371. If a passenger attempts to alight from a horse-car with- out any notice of his intention to the servants of the railroad com- pany in charge of the car, and without their knowledge or being negligent in not knowing that he is doing so, the company, it is held in Massachusetts, is not liable for injuries received by hira through i\ fall occasioned by the sudden starting of the car dur- ing his attempt.^ § 372. So, where the evidence was tliat a steam train, upon which the deceased -^vas a passenger, had stopped at a station and remained a sufficient length of time to enable passengers to leave it in safety, but the deceased, not availing of that opportunity, waited until the train was again in motion, and then, without the interference or suggestion of any of the employees of the com- pany, attempted to leave the train, and, wdnle doing so, was thrown under the cars and received injuries of which he died, it was ruled in Illinois, that there appearing to have been no mis- C. & R. R. Co. 70 Pa. St. 357; Lewis V. Bait. & O. R. R. 38 Md. 588. In Phillips IK Rensselaer & Saratoga R. R. 41 N. Y. 177, the plaintiff at- tempted to g;et upon one of defend- ants' cars, while slowly passing a sta- tion' where he had bought a ticket. The platform and steps of the car were full, so that he could only get upon the lower step. A jerk of the cars threw him off, but he held on to the iron rod and ran along by the car, striving to recover his position upon the step, although the speed of the train was increasing, when he was struck by a platform near the track, and injured. It was held, on appeal, that there was such contributory neg- ligence upon his ])art as justified a nonsuit ; and that the facts that some one upon the train called out the sta- tion, that others were also getting upon the train, and that plaintitY him- self and others had got on and off at this station when the trains were in motion, did not justify plaintiff's per- sistence in getting on the car when thrown irom the step, without regard- ing objects near the track (Church, Ch. J., dissenting). 1 Phillips V. Rens. & S. R. R. 57 Barb. G44. ■^ Bridges v. North London R. R. Co., Law Rep. r. f the place, and in permitting a passenger jury, who have virtually passed upon to alight without assistance, under these questions. Vhh' The E. & C. K. the circumstances detailed in the rec- R. Co. u. Lowderniilk, 15 Ind. 120. ord; yot, if the plaintiff, in getting " Siner i-. G. W. R. U. Co. [Law out, failed to observe ordinary care Reports for June 1, 1 808, part vi.] 3 and prudence, in consequence of Exch. 150, is distinguishable fnm\ the which he receiv\id the injury, he is case at bar in si-veral respects. Tliat not entitled to recover, unless the was an excursion train, and too long negligence of defendants was such for the platform. No directions were that the accident happened, notwith- given to passengers to ali'_dit. nor was standing the care and prudence of any demand made to back the cars, the plahUiff. Such is the doctrine The passengers in the cars which of the authorities. Angell, 559-501 ; overshot the platform, wiibont de- 329 §376.] CONTRIBUTORY NEGLIGENCE [book I. § 376. In an English case, the evidence was that the plaintiff was a traveller on the defendants' line of railway by a train which arrived at night at the station for which the plaintiff was bound. The part of the platform at that station at which passengers could alight was of sufficient length for the whole train to have been drawn up alongside of it, but in addition to that part the platform extended some distance, gradually receding from the rails. When the train drew up the body of it was alongside the platform, but the last carriage, in which the plaintiff rode, was opposite the re- ceding part of the platform and about four feet from it. The night was very dark, and the place where the last carriage stopped was not lighted, though the rest of the station was well lighted with gas. There was no express invitation given to the plaintiff by the company's sei'vants to alight, but the train had been brought to a fuial stand-still and did not move on again un- til it started on its onward journey. No warning was given to the manding tlie train to be backed, vol- untarily alighted, and in doing so the plaintiff was injured. The court of exchequer held that there was no evi- dence for the jury of negligence in defendants, and that the accident was entirely the result of the plaintiff's own voluntary acts. " So also is the E. & C. R. E. Co. V. Duncan, 28 Ind. 442, wherein the plaintiff leaped from the cars, though warned that she was leaping in a dan- gerous jDlace ; and the plaintiff herself testified that she voluntarily made what she regarded as a dangei'ous leap. It was on the 4th of ' July ; there was a large crowd ; a long ex- cui'sion train, and much haste and excitement. Provision had been made for safe descent upon one side of the car in which plaintiff was, but without observing it, the plaintiff jumped from the opposite side, alighting upon a cross-tie. Held, she was not entitled to i-ecover. " In Jeffersonville R. R. Co. v. Hen- dricks, 26 Ind. 228, the plaintifi' vol- untarily leaped from the cars, while 330 in motion, not to escape apprehended danger, but to avoid being carried further. So, in Penn. R. R. Co. v. Aspell, 23 Penn. 147, the courts of last resort in those cases held that the plaintiff could not recover. " In Foy V. London, Brighton et al. Railroad Co. 18 C.B.N.S. 225, the train being longer than the platform, the plaintiff, a lady passenger, jumped from the rear car, on the advice of a porter. The court refused to set aside a verdict in her favor, for in- juries thus received. Vule also S. & R. § 281, 283 ; Angell, § 547, 548." See also Columb. & I. R. R. v. Far- rell, 31 Ind. 408, to same effect; and see Siner v. Great W. R. R., Law Rep. 3 Exeh. 150, 4 Exch. 117, where it was ruled that where a train overshot the platform, and the plaintiff, on alighting, having to make a descent of three feet, was hurt, the overshoot- ing was not such negligence as to charge the defendants. See this case criticised, supra, § 363, note 2 ; and also in the next note. See also article in Alb. L. J., Aug. 1, 1874, p. 72. BOOK I.] RAILWAY PASSENGERS. [§ 'G. plaintiff that the carriage was not close to the platform, or that care would be necessary in alighting. • The plaintiff opened the carriage door, and, stepping out, fell into the space between the carriage and the platform, and sustained injuries, for which she brought an action against the company. It was ruled bv the court of exchequer that tliere was evidence of negligence on the part of the defendants' servants to go to tlie jury. It was further declared that bringing a railway carriage to a stand-still at a place which is unsafe for a passenger to alight, under circumstances which warrant the passenger in believing that it is intended he shall get out, and that he may do so Avitli safety, without any warning of his danger, amounts to negligence on the part of the company, for which, in the absence of contributory negligence on the part of the passenger, an action may be maintained.^ 1 Cockle V. London & S. E. R. R., L. R. 7 C. P. .S21 ; following Praeger I'. R. R. 24 L. T. X. S. 321, and qual- ifying Siner v. R. R., L. R. 4 Ex. 11 7 ; Bridges v. R. R., L. R. 6 Q. B. 377. gone. The platform of the station at the end which was first reached by the train, instead of having its edge parallel with the line of rails used by the arriving trains, was levelled off "The question," said Cockburn, C. into a curve, so as to allow space for J. (in Cockle v. R. R.), "is, wheth- a siding which there joined that line er these facts afford evidence to go of rails. The plaintiff sat in the last to the jury of negligence on the part compartment of the last carriage, of the company's servants. AVe are which was drawn up opposite the of 0])inion that they do. It is difh- curved part of the jilatform, so that a cult to reconcile all the cases on space of eighteen inches or two feet this subject. Each must, of course, was left between them. A guanl very much turn on its own particular opened the door, but said nothing, facts ; but there is a recent, case de- It was a dark evening, and the sta- cided in this court which is analogous tion was dimly lighted. The plaintiff to the case now before us, and the stepped out expecting to alight on the principle of which appears to us appli- ])latfbnn, and fell between the car- cable to it. The case to which we riage and the platform, thereby sus- refer, Praeger v. Bristol & Exeter Hy. taining injuries, in res])ect of which Co., though an important one, has not he brought his action against the conj- found its way into the regular rejmrts. i)any. Upon these facts, in the court It is, however, to be found in the 24th of exchequer, Kelly, C. B. and Pi- volume of the Law Times Reports, gott. B., Martin, B., dhseiitienli, held new series, p. 10.5, where it is very that there was no evidence of negli- fuUy and ably reported. In that case gence to go to the jury. But tho a train, iy which the plaintilf was a court of exchc(iuer chamber, eonsist- passcnger, arrived at a terminus, and ing of seven judges, were unanimously was stojiijcd fifteen or twenty feet of opinion that there was evidence of short of the fixed buffers placed at the negligence, and reversed the ilecision. extreme limit to Avhich it niiiiht have As the case in (|uesti.)n has not been 377.] CONTRIBUTORY NEGLIGENCE : [liOOK I. § 377. Passenger suddenly from ear. — If a railroad train, more <];;oncr,ally reported, it may be desirabl(! to repeat the judgments pro- nounced on the occasion in question. Coekburn, C. J., says as follows : " I adojJt most readily. the formula which has been suggested as applicable to these cases, viz., that the company are bound to use reasonable care in providing accommodation for passen- gers, and that the passengers also are bound to use reasonable care in avail- ing themselves of" the accommodation provided for them. Therefore I agree that a passenger is bound to use rea- sonable care in alighting on the 2)lat- form or elsewhere, when it becomes necessary for him to alight ; and if this case had been referred to us on the gi'ound of want of reasonable care in the plaintiff, it would have been an answer to say that he had not used it. The question is, whether there was a want of reasonable care on the part of the company, and I think there was not only evidence but abun- dant evidence of this. It appears that the construction of the railway and platform is such that a train coming to the station has to jiass by a curve of the platform, and that if the carriage is stopped alongside a certain portion of the platform a considerable space is left between them, and if there were three or four carriages, probably only those near the engine could be brought up flush with the platform. " It has been said that it is not al- ways possible to bring up carnages to the platform at stations, and one's own exjjerience tells us that this is true. The train may sometimes stop short of the platform, or shoot beyond it, and the passengers may, in conse- quence, have to alight elsewW^'re than on the platform. Still, the' purpose always is to bring all the carriages, if 332 jnd to an election and leaping by negligence, alarms a passen- possible, to a level with the platform, and therefore a railway traveller is entitled to expect that when he steps jout he will step on to the platform. But I agree that if it be daylight, a man being bound to use his eyesight, if the passenger sees that the carriage is not in the ordinary position with reference to the platform, he must not comjilain if, there being no actual danger, he has to use a little more care than usual in getting out. If the position be such that there is some extraordinary difficulty or danger, he must consider what he will do. He may call to the servants of the com- pany to bring the carriage into its proper position ; but there may be cir- cumstances in which it is impossible to make such an application, or he may have no opportunity of making it, or the application may be refused. It is possible that from urgent natui'al necessity he may be obliged to alight. Under such circumstances as these, I am far from saying that he might not have a right of action if he suffered injury while so alighting. But these considerations are not involved in the present case. The state of things here was, that whereas the carriage in which the plaintiff was would have been brought up to the platform if the train had moved further, the plaintiff got out, believing he Avas going to step on to the platform. Instead of that he fell between the carriage and the platform. He got out on the invita- tion of the guard, who opened the door, which implied an invitation 'to alight, and I think, also, to alight with safety. Under sucli circum- stances a person would be justified in expecting to step on to tlie platform, and it was incumbent on the guard if he intended the passengers to get out, BOOK I.] RAILWAY PASSENGERS. [§ 377. ger, who leaps in fright from the car, the company is liable for to warn them of the position of the without any warning of danger to a phxtform. He gave no such warning, passenger who is so circumstanced as and the omission seems to me to not to be able to alight without dan- amount to negligence, which is the ger, such danger not being visible and whole question." Willes, Keating, apparent, amounts to negligence. It and Brett, JJ., were of the same opin- is true that, in the case before us, ion. Mellor, J., said : " There was there was not the invitation to alight not sullicicnt light at the station to which is implied in the opening of the enable a person in the situation of the carriage door, as occurred in the case plaintiff' to alight without exercising of Praeger v. Bristol & Exeter Ry. an unusual degree of care." M.Smith, Co.'^ But it appears to us that the J., said: "Whilst adhering to the bringing up of a train to a final stand- case of Siner v. Gi-eat Western Ry. still, for the purpose of the passengers' Co.,^ I consider that case distinguish- alighting, amounts to an invitation to able from the present on two grounds : alight, at all events,, after such a time first, because here there was a clear has elapsed that the passenger may invitation to alight by the guard open- reasonably infer that it is intended ing the door ; and, secondly, because that he should get out if he jiurposes here the danger to be incurred was to alight at the particular station. It not apparent. The negligence of the is not necessary here, any more than company consisted in drawing up the in Praeger v. Bristol & Exeter Ry. train as it was drawn up, and inviting Co.,^ to say wliat would be the eflect the passengers to alight without giv- if a passenger should alight when the ing them any warning of the state of danger was visible and apparent ; as the platform, there being also evidence where a passenger gets out in broad of a want of sufficient light." Lush, day, trusting to his abihty to overcome J., said : " I consider that the com- the difficulty. In the case before us pany did not do what they might the place where the plaintiff was left have done under the circumstances, to get out was not lighted, and she The train was drawn up so that part eould not see, and was not aware of of it was short of the proper platform, the interval which separateil the car- and an unusual space was left between riage from the platform, ami got out the compartment in which the i)lain- believing she was about to step on to tiff travelled and the platform. The the platform. We think that the guard opened the door without giving leaving a carriage which lia.s been any caution. Looking also at the brought up to a place at which it is time of day and the state of the light, unsafe for a passenger to alight, under it seems to me that it was for the jury circumstances which warrant the pas- to say whether the injury to the senger in believing that it is intemled plaintiff was caused by the company's he shall get out, and tliat he ni:iy negligence or by other causes." therefore do so with safety, without " The foregoing case appears to us any warning of liis danger, amounts to in point to the present, as establishing negligence on the part of the com- that an invitation to passengers to pany, for which, at least in tlie ab- alight on the stopping of a train, sence of contributory negligence on 1 Lijw Kcp. 4 Ex. 117 2 24 L. T. (N. S.) 105. 333 § 377.] CONTRIBUTORY NEGLIGENCE [I'.OOK I. the consequences.^ And this has been extended to cases where the train neghgently passes a station where a passenger is due, the part of the passenger, an action may be maintained. The case is dis- tinguishable from that of Bridges v. North London Ry. Co.,^ on the ground that in the latter the carriage from which the passenger alighted had been drawn up in a tunnel in the vicinity of the station. In that case there was no evidence that the train had come to a final stand-still, or, in other words, arrived at the spot where the company's servants intended the passengers to alight. The question, therefore, was, whether there was evi- dence of anything done by the com- pany's servants which induced the passenger to believe it had so arrived, and act on that belief.. But in the present case the evidence of the con- duct of the company's servants was such as to warrant the jury in finding that the train had really come to the final stand-still, and the company's servants meant the passengers to get out there or be carried on. Of course, a multo fortiori, the jury might find that that conduct was such as to in- duce the plaintiff to think so, and to act upon that belief. We are, there- fore, of opinion that the rule nisi to enter the verdict for the defendants was properly discharged by the court of common pleas." In Bridges v. North London R. R., L. R. 6 Q. B., above referred to, the evidence was that B. was a passenger by the defendants' railway from Lon- don to Highbury. He was a season- ticket holder, and travelled to and fro every day ; he was very shortsighted. The train consisted of six carriages. B. rode in the middle compartment of the last carriage. On approaching • Highbury Station from London ' the railway passes through a tunnel. At the farther end of the station is a broad platform, far exceeding the length of the train ; then a narrow platform, about twelve feet of which is within the tunnel; then a slope of ten feet from the platform to the level of the rails ; and beyond this a heap of hard rubbish extending some way into the tunnel, about a foot lower than the platform. The train stopped at the station, the last two carriages being still in the tunnel, and the car- riage in which B. rode being opposite the heap. A passenger who rode in the next carriage, as the train stopped, heard " Highbury " called out at the far end of the platform ; he got out, and then heard a groan in the tunnel; and on going back he found B. lying on the heap with his legs between the wheels of the carriage, but they had not passed over him. The passenger also heard, " Keep your seats," called out, and the train then moved farther forward towards the platform. One of B.'s legs was broken, and he had received internal injuries of which he died. It was after dark; there was a lamp within the tunnel near the en- trance, about twenty-eight feet from where B. was found ; the tunnel was full of steam. The judge nonsuited the plaintifT, giving her leave to move to enter a verdict, " If the court considered there ^ See supra, § 93-5, 304, for cases; and see Eldrldge v. Long Is. R. R. 1 Sandf. 89 ; Ingalls v. Bills, 9 Met. 1 ; South- west R. R. V. Paulk, 24 Ga. 356 ; Jones?;. Boyce, 1 Stark. 493; R. R. V. Aspell, 23 Penn. St. 147. 334 1 Law Rep. 6 Q. B. 377. BOOK I.] RAILWAY PASSENGERS. [§ 377. and where the passenger, in the anxiety of the moment, jumps from the car at an unsuitable place.^ Thus in a New York ease,^ the evidence was that the phiintiff, by the company's negligence, was suddenly put to an election between leaving the cars while they were moving slowly, or submitting to the inconvenience of being carried by the station where she desired to stop ; it was ruled that the company was liable for the consequences of the choice, provided it was not exercised wantonly or unreasonably. It is a proper question, it was ruled, for a jury, whetlier the adoption of the former alternative is ordinary cai*e and ]jrudence, or a rash and reckless exposure to peril. Under such circum- stances, where the decision is required to be nuide upon the in- stant, the passenger, it was declared, ought not to be held to the most rigid accountability for the highest degree of caution.-^ was any evidence of negligence on tlie part of the defendants which could properly be left to the jury." The court of" queen's bench refused a rule. On appeal to the exchequer, it was held, by Bramwell, Channcll, Pigott, and Cleasby, BB., that there was not evidence on which a jury could properly have found for the plaintiff, and the nonsuit was there- fore right. By the same judges it was ruled that the question of whether there was contributory negligence on the part of the deceased was open on the above reservation. On both points Kelly, C. B.,Willes, and Keating, JJ., dissented. But the whole court held that the calling out the name of the station is not in itself an invitation to the passengers to alight; whether it is so or not must depend on the circum- stances of each particular case. 1 111. Cent. R. R. r. Able, r>d 111. 131. 2 Filer o. N. Y. Cent. K. II. 49 N. Y. 47. 3 In ruling this case Allen, J. said : . . . . " The fact is undisputed that the plaintiff received the injury while at- tempting to get off the cars while they were in motion, making very slow progress, and the jury have found that she was directed by the brakeman rm the cars to get off, and was told by him that they would not stoj) or move more slowly to enable her to do so. That it was culpable negligence on the part of the defendant to induce or jx-rmit the plaintiff to leave the train while in motion, and a gross disregard of the duty it owed her, not to stoji the train entirely and give her ample time to pass off with her luggage, is not dis- puted. Notwithstanding this, if the plaintiff did not exercise ordinary care, and might with ordinary care and prudence have avoiiled the injury, she is precluded from recovering Had the cars been going at a rapid rate, the plaintiff must have known that she would be injured liy leai>- ing from them, and the attempt to leave the cars, under such circum- stances, even at tlie instance of the railway servants, w J ; (ion- zales r. New York & Hark-m Railroad Co. .is 11)1(1. 440; Wilds r. Hudson River Railroad Co. 29 ll.id. 315 ; .S". C. 24 Ibid. 430. So also Gorton r. Erie R. R. 45 N. Y. 660 ; Morris & Essex Railroad Co. t;. Hentou, 4 Vroom (N. J.), 189; Runyan r. Central Railroad Co. 1 Dutch. (N. J.) 558; Cliicaso & Alton Railroad Co. v. Fears, 53 111. 345 § 385.] CONTRIBUTORY NEGLIGENCE : [BOOK I. York case, it appeared in evidence that the plaintiff lived near, and owned land on both sides of the New York Central Railroad. At four o'clock in the afternoon of the collision, he was travelling in a wagon on a highway, crossing the railroad on a level, at a time when the passenger train was due. No proof was given that he or those with him in the wagon looked for the train, or took any precaution wdiatever. The wagon was struck, the plaintiff's son killed, and he himself severely injured. The court say: " It should and must be regarded as very little short of reckless- ness, for any one to drive on the track of a railroad without first looking and listening whether a moving train is near. The negli- gence of the defendant in this case was a failure to ring the bell or sound the whistle. Yet, as Dascomb (the plaintiff) was also negligent, he could not recover. Those living near a railroad, may, by contact, become careless ; but they will be no less chargeable with negligence in case they rush on the track with- out looking and trying to ascertain first whether danger is near. Failing in this respect, they cannot be permitted to recover for injuries received. It is a well settled principle of the common law, that he whose negligence has contributed in any essential degree to the injury sustained cannot maintain an action against the party whose negligence has also contributed to the injury. When negligence is the issue, it must be a case of unmixed neg- ligence. This rule is important, salutary in its effects, and should be maintained in its purity. The careless are thereby taught that if they sustain an injury to which their own negligence has contributed, the law will afford them no redress." ^ § 385. It should, however, be remembered that if a statute re- quires that a train should give a specific warning of its approach, the travelling public has a right to presume that, in default of 115; Lafayette & Ind. Railroad Co. y. i'. Terry, 8 Ohio St. 570; Evansville Huffman, 28 Ind. 287; Pittsburg & &c. Railroad Co. v. Hiatt, 17 Ind. Ft. Wayne Railroad Co. r. Vinning, 102; Illinois Central Railroad Co. v. 27 Ibid. 513 ; Toledo & Wabash Rail- Buckner, 28 111. 303 ; North Pennsyl- road Co. v. Goddard, 25 Ibid. 185; vania Railroad Co. v. Heilmann, 49 Steves V. Oswego & Syracuse Rail- Penn. St. 60 ; Harlem Railroad Co. v. road Co. 18 N. Y. 422; Sheffield v. Coyle, 5 P. F. Smith, 396; Chicago Rochester & S. Railroad Co. 21 Barb. & A. Railroad Co. v. Gretzner, 46 111. 399; Brooks V. Buffalo & N. F. Rail- 74. See fully infra, § 804; so also road Co. 25 Ibid. 600 ; Chicago, Rock Parker v. Adams, 12 Mete. 415. Island & Pacific Railroad Co. v. Still, ^ Dascomb v. Buffalo & St. Louis 19 111. 499 ; C. C. & C. Railroad Co. R. R. 27 Barb. 221. See infra, § 804. 346 BOOK I.] TRAVELLER COLLIDING WITH TRAIN. [§ 385. such warning, an approaching train may purpose to reduce its speed ; and it should require proof of rashness on part of the plaintiff to defeat his recovery if such warnings are omitted. The same reasoning also, which would permit this check to be dispensed with, would permit a railroad to dispense with the re- strictions requiring it to slacken its speed in passing through vil- lage or city. Hence it has been correctly ruled, that if a railroad neglects signals and look- out, when required by either statute or common law, it is liable, although the plaintiff was incautiously on the track, supposing the plaintiff' kept a proper look-out. ^ 1 Bait. & O. R. R. y. Trainor, 33 M(l. 542. See also Cliff v. Midland R. R. Co., L. R. 5 Q. B. 258. As will hereafter (§ 804) be more fully seen, the preponderance of Amer- ican authority, however, is to the effect that " contributory negligence of a person attempting to cross a railroad track undoubtedly excuses the railroad companj', whether the re- quired signals are or are not given; or whether the company is or is not guilty of any other nejjligence The rule of this court is ... . that where the injured 2)arty has not used ordinary care, there can be no recov- ery against the company." Clerke, J., in Ernst v. Hudson River R. R. 39 N. Y. 61. See also McCall v. R. R. 64 N. Y. 642. " A traveller is bound to use his eyes and ears as far as there is op- portunity." " Negligence in the rail- road company to give the proper sig- nals, or in omitting precautions of any kind, will not excuse his (the travel- ler's) omission to be diligent in such use of his own means of avoiding dan- ger." " And when by such use of his senses the traveller might avoid dan- ger, though the company neglect to give signals or warning, yet his omis- sion (to be diligent) is concurring negligence, and should be so peremp- torily declared by the court." Wood- ruff, J., in same case. So in Havens v. Erie Railway Co. 41 N. Y. 296, it was ruled that even where the statute re(iuired signals to be given by the company on approach- ing a railroad crossing, and they were omitted, yet such omission did not absolve the person approaching such crossing from looking up and down the track, to see whether a train was approaching ; and his omission to do so precluded his recovery. So also Beisegel v. N. Y. Cent. R.'r. 41 N. Y. 296 ; and Gorton v. Erie R. R. 45 N. Y. 660. So in Galena & Chicago Union R. R. Co. V. Loomis, 13 111. 548, the court held, " that if without signals the in- jured party might, with care, have seen the ti'ain and known that it was approaching, he could not recover. A failure to ring the bell or sound the whistle does not raise a presump- tion that this was the cause of the in- jury." Chicago & Mississippi R. R. Co. V. Patchin, 16 111. 198 ; Galena & Chicago Union R. R. Co. c. Dill, 22 111. 264 ; Illinois Central R. R. Co. v. Phelps, 29 111. 44 7. And so where the evidence was that the plaintiir was approaching a rail- road crossing with his wagon and team, and when at the distance of thirty yards from the crossing he saw the snu)ke of the locomotive of the approaching train, and couM have stopped before reaching the track, but 347 § 386.] CONTRIBUTORY NEGLIGENCE [book I. § 386. When the view of the road is obstructed, or when other circumstances make a look-out inadequate, the omission of sig- did not check the speed of his horses until he reached the track, when the pole of his wagon struck the train, or was struck by the train, and the wagon was overturned, and threw him out ; it was ruled by the supreme court of Illinois that he could not re- cover, though there may have been negligent omissions by the train. C. & C. & A. R. R. Co. V. Fears, 53 111. 115. See Wild v. Hudson R. R. R. 24 N. Y. 430. So where the son of plaintiff told hhn that he thought he heard a train com- ing, plaintiff decided to rush his stock over the track, and in doing so three head were killed, it was held, that plaiutifl''s negligence was equal to that of defendant in not ringing the bell or sounding the whistle according to law. Ohio & Miss. R. W. Co. v. Evans, 42 111. 288. See also Dascomb v. Buff. & St. Louis R. R. 27 Barb. 221; Mackay V. N. Y. Cent. R. R. 27 Barb. 528; and infra, § 799, 804. In R. R. Co. V. Whitton, 13 Wall. 276, . . . . " The evidence being closed, the defendant asked nineteen different instructions, which the court refused to give, except in so far as they were contained in the instructions whose substance is hereinafter men- tioned and given of its own accord. Among the nineteen were these two: — " Under ordinary circumstances a person possessing the use of those faculties should use both eyes and ears to avoid injury in crossing a railway track; and if in this case the wind and noise of the freight train tended to prevent Mrs. Whitton from hearing the approach of defendant's engine, she was under the greater obligation to use her eyes. It was her duty to look carefully along the tracks of defendant's railway, both northwardly and south- 848 wardly, before attempting to cross them, and it was not suincient excuse for failing to do so that the day was cold and windy, or that one train had just passed on the track nearer to her. " It was the duty of Mrs. Whitton to look carefully along the tracks of de- fendant's railway to the north before putting herself in the way of danger, and in time to see and avoid any en- gine or train approaching from that direction. If necessary, in order to do this, it was her duty to pause be- fore starting to cross until the freight train had so far passed as to give a sufficient view to determine whether she could safely cross ; and if she failed to look carefully along these tracks to the north, after the freight train had so far passed as to give her such a view, and in time to have seen and avoided defendant's engine, the plaintiff cannot recover." The plaintiff asked three instruc- tions, which were refused in the same way. The questions submitted to the jury were : — " 1. Whether Mrs. Whitton's death was caused by the negligence of those who had the management of the train; and, " 2. Was Mrs. Whitton herself guilty of any fault or negligence which con- tributed to that result." As to the negligence of the defend- ant, the court, in substance, instructed the jury that it was the duty of those having the management of the train to cause the bell of the engine to be rung a sufficient time before crossing Academy Street, to give warning to any passengers on that street desirous of crossing, and to keep it ringing until the tender had crossed the street ; and also that it was the duty of those hav- BOOK I.] TRAVELLER COLLIDING AVITH TRAIN. [§ 386. nals is negligence making the company liable. — But however we may decide the last question, there can be no hesitation as to agreeing, that " if the view of the raih-oad, as the crossing is ap- proached upon the highway, is obstructed by any means, so as to render it impossible or difficult to learn of the approach of a train, or there are complicating circumstances calculated to deceive or throw a person off his guard, then, whether it was negligence on the part of the plaintiff or the person injured, under the partic- ular circumstances of the case, is a question of fact for the jury. If he was negligent, he cannot recover ; if he was not, he may recover." ^ ing the management of the train to keep a proper and vigilant look-out in the direction the train was moving, particularly under the circumstances of the case, — a freight train going up one of the tracks in an opposite direc- tion, the train in question just ap- proaching a much frequented street, and a violent southwest wind blowing at the time, and that there was a pe- culiar vigilance incumbent on those who had the management of the train, to ring their bell and keep a proper look-out, because it was natural, if there were any persons standing at that crossing (a freight train passing along at the time), that they would seek to cross the track after the freight train had gone over the street. As to the negligence of Mrs. Whit- ton, the court, in substance, instructed the jury that she was required to ex- ercise that degree of prudence, care, and caution incumbent on a person possessing ordinary reason and intelli- gence, under the special circumstances of the case, having regard to the fact of its being a railroad crossing, and another train crossing the street, for which she had to wait in company with Mrs. Woodward, and that she must have used ordinary care, pru- dence, and caution. " Upon these facts," it was said by the supreme court of the United States, " the court gave to the jury a clear and full charge upon the duties and responsibilities of the railroad company in crossing the street of the city, with its engines and trains, and upon the care, prudence, and caution, which it was incumbent upon the de- ceased to exercise in crossing the tracks; and as to the damages which the jury were authorized to find, in case they were satisfied that the em- ployees of the company had been guilty of negligence, and that such negligence had caused the death of the deceased." 1 Cole, J., in Artz r. Cliic. & R. I. R. R. 34 Iowa, IGO; citing O'Mara v. Huflson River Railroad Co. 38 N. Y. 445; Renwick v. New York Contr.al Railroad Co. 36 Ibid. 132 ; Beisiegel V. New York Central Railroad Co. 34 Ibid. 622; Telfer y. Northern Railroad Co. 30 N, J. 188 ; S. C. 3 Am. Law Reg. (N. S.) 665; Lidianapolis, P. & C. Railroad Co. v. Keeley, 23 Ind. 133; Evansville, &c. Railroad Co. v. Lowdenwick, 15 Ibid. 12ul)lic trallic, and the company in fact had done, that what the gate-keeper did was much there should still be a turnstile so as to more clearly and plainly within the scope of the duty of the company towards the passenger who was going to pass through the gate, and who could not get from across the line at all unless the man in charge oj)i'ned the gate. I think, therefore, (here was evidence to go to the jury uj^on this point, and that it was properly letl to them, and we cannot enter a verdict for the defendants." - See supra, § 345 ; infra. § 798. 8 Brown v. Hannibal & St. Jo. R. R. .")0 Mo. 461. In this ease it was further held that while a train has a allow foot-passengers to pass, foot-pas- sengers being intrusted to look out for themselves. But in that particular case the man whose duty it was to open and shut the gates, and whose duty it was to be on the spot to give warning and directions as to carriages and horses, was absent, and had left the carriage gate open. The gate- keeper was placed there for tliis par- ticular duty of opening and shutting the gate, and although the jierson about to cross was a foot-passenger to whom he had no such duty, and for •whom, if there, he would not liave right to stop at a public crossing for a been bound either to open or shut the reasonable time for proper purposes, 351 389 a.-] CONTRIBUTORY NEGLIGENCE : [book I. § 389. J^ot negligence for engineer not to stop train if stopjjage cannot be made without undue risk. — When a person dashes across a railroad on an open crossing so suddenly and unexpect- edly that the train cannot be checked in time to save him except at risks which a prudent engineer would not assume, the company is not liable for the consequences *of the collision, if there was no failure in statutory duty of giving notice. ^ § 389 a. Bist'mction in this respect between persons apparently helpless, and those capable of helping themselves. — An engineer passengers are not obliged to wait un- til the train is removed ; and if the passengers are obliged to cross at other points than the public crossing on ac- count of such obstruction, the com- pany is bound to use ordinary care and diligence to prevent injuries to them ; and when persons were in the habit of crossing the track at another than the public crossing, the agents and ser- vants of the company were bound to take notice of the fact, and use a pre- caution commensurate with it. See to same effect, in addition to cases cited supra, § 345 et seq., Gray V. Scott, 66 Pa. St. 345; Trow v. R. R. Co. 24 Vt. 487; Kerwhacker v. C. C. &c. R. R. 3 Ohio St. 172; Railroad Co. v. Caldwell, 9 Ind. 397; Railroad Co. v. Adams, 26 Ind. 76; Bellefontaine R. R. v. Hunter, 33 Ind. 365; R. R. v. Collins, 2 Duvall, 114; Brown v. R. R. Co. 50 Mo. 461 ; Rail- road Co. V. State, 36 Md. 366 ; L. & N. R. R. V. Burke, 6 Cold. 45; R. R. V. Whitton, 13 Wall. 176; Rothe v. Railway Co. 21 Wis. 256; Butler v. M. & St. P. R. R. Co. 28 Wise. 487; B. & O. R. R. V. Fitzpatrick, 35 Md. 32 ; Daley v. Norwich, &c. R. R. 26 Conn. 591 ; Brown v. Lynn, 31 Penn. St. 510; Col. C. C. R. R. v. Terry, 8 Ohio, N. S. 570; Budge v. Grand June. R. R. 3 M. & W. 244 ; Macon, &c. R. R. V. Davis, 18 Ga. 679; Lacka- wanna R. R. V. Chendworth, 52 Penn. 352 St. 382 ; Cent. R. R. v. Davis, 19 Ga. 437. In B. & O. R. R. Co. v. Trainer, 33 Md. 542, it is well said by Maulsby, J. : " It is argued that if the deceased walked on the track, and his walking on the track was want of ordinary care, and the accident would not have happened if he had not walked on the track, then such walking was the prox- imate cause of the accident, and the plaintiff cannot recover. This argu- ment does not justly apply the rule in 29 Md. 421. By 'proximate cause' is intended an act which directly pro- duced, or concurred directly in pro- ducing, the injury. By ' remote cause ' is intended that which may have happened, and yet no injury have oc- curred, notwithstanding that no injury could have occurred if it had not happened. No man would ever have been killed on a railway, if he had never gone on or near the track. But if a man does, imprudently and incau- tiously, go on a railroad track, and is killed or injured by a train of cars, the company is responsible, unless it has used reasonable care and caution to avert it, provided the circumstances were not such, when the party went on the track, as to threaten direct injury, and provided that being on the track he did nothing, positive or negative, to contribute to the immediate injury." 1 Chicago & Alt. R. R. v. Gretzner, 46 111. 74. BOOK I.] COLLISION OF TRAVELLER WITH TRAIN. [§ 389 a. who sees before liim on the track a person apparently capable of taking care of himself has a right to presume that such person on due notice will leave the track, if there be opportunity to do so ; and the engineer will not in such cases be chargeable \vith negligence if, in consequence of such person not leaving the track, the train cannot be checked in time to avoid strikino; him.^ But 1 Infra, § 803 ; Jones v. N. C. R. R. 67 N. C. 125; Phil. & Read. R. R. V. Spearen, 47 Penn. St. 300 ; Telfer v. R. R. 30 N. J. 188. Thus it is not the duty of a railroad engineer, on nearing a public road- crossing, to stop his train for the pur- pose of avoiding a collision with a wagon and team he may see approach- ing the crossing, though by applying the brakes he could do so in time to avoid a collision. The engineer in such a case has a right to suppose, when he sees the wagon at a distance approaching the crossing, and the prop- er signal is sounded, that the person in charge of the team, in obedience to the known custom of the country, will stop, and not attempt to pass imme- diately in front of a swiftly advancing train. The converse, also, is true, that should the engineer, on ai)proaching the crossing, see a team on the track when it would not be likely to get across in time to avoid the train, he should use every means in his power to check his train and prevent the col- lision. St. Louis, Alt. & T. 11. R. R. V. Manly, 58 111. 300. So in Telfer v. North. R. R. Co. 30 N. J. 188, the court said : " In crossing ordinary roads, caution and care are chiefly demanded to avoid running against or over anybody else ; in crossing railroads, it is exacted to avoid being run over yourself. In the former case, the blame attached jirimd facie to the party doing the injury ; in the latter, it attaches, in the first in- stance, to the iiartv obstructing the track." It is added: " \Vhether the 23 whistle was blown or bell rung upon the approaching engine, is immaterial, if the boys knew, or with ordinary caution might have known, in time to avoid the collision, that the train was approaching. Although the engineer saw the boys approaching the crossing, while yet at such a distance as not to indicate their ignorance of the cominf train, it was his right to suppose that they did not mean to attempt to cross before the train; and if he acted upon that impression, it was not ncjgligence or want of ordinary caution on his part, although the supposition proved to be groundless." The law, it is fur- ther argued, only requires that the speed should be lessened when cross- ing a highway or other railroad, unless the track be concealed from view, or runs through a village or city. But it is the duty of the public to approach the track cautiously. The engine can- not turn to avoid collision ; all other conveyances can. This distinction is well expressed in the following passage from an opin- ion of Christiancy, C. J., in Lake Shore R. R. v.' Miller, 25 Mich. 277 : — " It is true there are some apparent qualifications or exceptions to this rule (that a party whose negligence has contributed to the injury cannot recover) ; thus, though the plaintiff is in fault by negligently driving upon the track of a railroad, or not using due diligence to get out of the way, yet, if lie be seen by the engineer in time to avoid the injury l)y reasonable diligence in du'cking the train, the 353 § 389 rt.] CONTRIBUTORY NEGLIGENCE [book I. it is otherwise with persons apparently not capable of taking care of themselves, such as very young children, and persons lying failure to do so would be treated as the proximate cause of the injury, if, from what the engineer could see, he had good reason to believe the plain- tift' could not, or was not likely to, get off in time, or did not seem to be aware of the danger, and was there- fore making no efibrt to avoid it. But if an engineer see a team and a car- riage, or a man, in the act of crossing the track, far enough ahead of him to have ample time, in the ordinary course of such movements, to get en- tirely out of the way before the ap- proach of the engine ; or if he sees a man walking along upon the track at a considerable distance ahead, and is not aware that he is deaf or insane, or fi'om some other cause insensible of the danger; or if he sees a team or man approaching a crossing too near the train to get over in time, he has a right to rely upon the laws of nature and the ordinary course of things, and to presume that the man driving the team or walking upon the track, has the use of his senses, and will act upon the principles of common sense and the motive of self preservation common to mankind in general ; and that they will, therefore, get out of the way, — that those on the track will get off, and those approaching it will stop, in time to avoid the danger; and he, therefore, has the right to go on, without checking his speed, until he sees that the team or the man is not likely to get out of the way, when it would become his duty to give extra alarm by bell or whistle, and if that is not heeded, then, as a last resort, to check his speed or stop his train, if possible, in time to avoid disaster. If, however, he sees a child of tender years upon the track, or any person known to him to be, or from his ap- 354 pearance giving him good reason to believe that he is, insane, or badly in- toxicated, or otherwise insensible of danger, or unable to avoid it, he has no right to presume that he will get out of the way, but should act upon the belief that he might not, or would not, and he should therefore take means to stop his train in time. A more stringent rule than this, — a rule that would require the engineer to check his speed or stop his train, whenever he sees a team crossing the track or a man walking on it far enough ahead to get out of the way in time, until he can send ahead to in- quire why they do not ; or which would require the engineer to know the deafness or blindness, or acuteness of hearing or sight, or habits of pru- dence or recklessness, or other per- sonal peculiarities of all those persons he may see approaching, or upon the track, and more especially of all those who may be approaching a crossing upon the highway, though not seen, — any such rule, if enforced, must effectually put an end to all railroads as a means of speedy travel or trans- portation, and reduce the speed of trains below that of canal-boats forty years ago ; and would effectually de- feat the object of the legislature in authorizing this mode of conveyance. But how are railroad companies, or their engineers or employees, to know the personal peculiarities, the infirmi- ties, personal character, or station in life of the hundreds of persons cross- ing or approaching their track ? By inspiration or intuition ? And if they do not know, then how and why shall the company be required to run their road, or regulate their own conduct, or that of their sei'vants, by such per- sonal peculiarities of strangers, of BOOK I.] COLLISION OF PASSENGER WITH TRAIN. [§ 391. helpless on the track. The engineer has no right in such cases to presume that such persons will leave the track in time to avoid a collision. His duty is to check the train as soon as he sees an apparently helpless person on the track ; and if he does not do so, and a collision ensue, the company is liable for the negligence.^ § 390. Surprise caused hy cars running irregularly. — If a person watching on a road takes due precautions to avoid collision, but the collision occurs from the train being moved unexpectedly to the surprise of the person so watching, he can recover if there was negligence in so moving the train. In a case of this char- acter it appeared that the defendants and another company used the same grounds in the city of Chicago, the main tracks of the two roads being between six and seven feet apart. The plaintiff, being a track repairer, in the employ of the latter company, was engaged, with two other men, in replacing a rail on the track of this company, when a train of freight cars, which was being pushed backward, approached the workmen unobserved by them until nearly upon them, when they heard the shouting of a brakeman on the rear car, and hastily jumped backward to the end of the ties on the track of the defendants. While standing there waiting for the train to pass, the plaintifif and one of his fellow-laborers were struck by two freight cars belonging to de- fendants, and the plaintiff was severely injured. These cars were moving in the same direction as the train on the other road, by their own momentum, having been uncoupled from a train while in motion, and left quietly to run along the track without any person upon them to check their motion or to give an alarm. It was ruled the defendants were guilty of negligence in running their cars in the manner indicated ; but the plaintiff was not chargeable with such negligence as would bar his recovery be- cause of his omission, under the excitement and alarm of the oc- casion, to look along tlie track of the defendants' road to see if there might not be a train approaching, although he had time to do so before the collision.^ § 391. Nor, as has been seen, does the fact that the plaintiff ■which they know nothing ? " Sec also East Tenn. R. K. v. St. John. 5 Sneed, R. I'. Longbottom, 3 Cox C. C. 439; 524. Supra, § 42, 307, and cases cited R. V. Walker, 1 C. & l\ 320. infra, § K03. 1 R. V. Longbottom, 3 Cox C. C. "^ Chic, R. T. & P. R. R. v. Dignan, 439; R. V. Walker, 1 C. & P. 320; 56 111. 487. Infra, § 810. 355 § 394.] CONTRIBUTORY NEGLIGENCE : [BOOK I. was a trespasser relieve the company from liability for the con- sequences of darting their cars to and fro without notice over a passage way. Thus where the end of a railroad track was over a passage way in a yard from a rolling-mill through which wheel- barrows and trucks frequently passed from the mill, and a car was negligently pushed over the end of the track, and killed a boy playing in the passage, it was held no defence that the boy had been frequently warned not to be in the passage on ac- count of danger from the trucks. His not heeding the warning was not contributory negligence.^ § 892. Greeping under cars is contributory negligence. — For a person to attempt to pass under cars about to start is such gross negligence as precludes him from recovering from the railroad company for damages, even though it appear that the engine started without the usual signal from the engineer.^ § 393. Passing between cars about to start. — And so when the plaintiff, having warning that a freight train was about to start, undertook to pass through it on his way to a passenger train. ^ A fortiori is this the case with passing through cars when in motion.* § 394. Leaving a quiet horse, accustomed to railroads, tvithout care, iiear a crossing, not as a matter of law cotitributorg negli- 1 Gray v. Scott, 66 Pa. St. 345. police from creejaing under tlie coup- Supra, § 314. lings, but several persons had climbed 2 Central R. R. v. Dixon, 42 Ga. up the platforms and thus crossed. 327. See Lewis v. Bait. & O. R. R. 38 After waiting about five minutes plain- Md. 392 ; Am. Law Reg. May, 1874 tiff started to get on the platform with (N. S. vol. 13, No. 5), 284. In Ranch the intention of crossing in the same V. Lloyd, 31 Pa. St. 358, it was held manner, when the train started and that when the plaintiff was a child, his leg was crushed between two cai's. and the position of the cars in the Held, that such an act was contribu- street was illegal, the plaintiff's con- tory negligence, and he could not re- duct in thus attempting to cross was cover. The fact that the railroad not contributory negligence. company was negligent in thus block- In Lewis V. Bait. & O. R. R. 38 ing a street crossing contrary to the Md. 588, plaintiff desiring to cross a city ordinances, it was held, did not street in Baltimore, after dark, the relieve plaintiff from the duty to use street lamps being lighted, found a ordinary care to avoid danger. train of railroad cars blocking the 8 Chicago, &c. R. R. v. Dewey, 26 crossing. A crowd had collected 111. 255. waiting for an opportunity to cross, * Gahagan v. Bost. & L. R. R. 1 and while plaintiff was waiting two Allen, 187. ■women had been prevented by the 356 BOOK I.] COLLISION OF TRAVELLER WITH TRAIN. [§ 395. gence. — It has been ruled in Massachusetts,^ that the fact that a horse was frightened and not under the control of any one, at a time when it was struck by a railroad train on a highway cross- ing, is not conclusive, as matter of law, of such a want of care on the part of its owner as to defeat an action brought l)y him against the railroad corporation to recover for the injur}'- as caused by their negligence. In this case the evidence was that a servant, whom traders employed to deliver goods, upon stopping with his horse and wagon to deliver a parcel at a house from fifty to a hundred rods from a railroad crossing, left the horse unfastened for four or five minutes while he was in the house, knowing that it was not afraid of cars, and having used it for three or four months without ^ever hitching it or knowing it to start. This was ruled not to be conclusive, as matter of law, of a want of due care on his part ; it being held that the question was for the jury. But if the case thus be left to the jury, it sliould be with the instructions, that if it should appear that the distance from the track was such that even a quiet horse might be alarmed on finding himself left, without attendant or fastening, near an en- gine dashing up, a case of contributory negligence was made out.^ § 395. Negligence of persons hy whom plaintiff is carried. — If there is a collision between two carriages or trains, belonging to different owners, a passenger in one carriage or train cannot recover from the other carriage or train, if the collision was caused by the negligence of his own carrier.-"^ But if the negli- gence was joint, he may recover from either company or from both.* Thus in a late New York case,^ tlie evidence was that the tracks of two horse-railroad companies crossed each other at an acute angle ; a car upon each track was approaching tlie in- tersection from opposite directions, and a collision occurred. It was held, that if the acts of the defendant's servants contributed to the injury, the defendant was liable, although the negligent acts of the persons in charge of the other car were also contribu- ^ Southworth r. Oltl Colony & Nfw- Locklianlt r. Lichtenth.ilor, 4G IVnn. port Railway, Company 10.') Mass. 342. St. 151. 2 See supra, § 103-7, and particu- •» Cole<^rovc v. N. Y. & N. 11. R. 11. larly infra, § 838. 20 X. Y, 402; afT. .S'. C. 6 Du.'r, 382 ; 8 Thorouf^hgood v. Bryan, 8 C. B. Davey v. Chamberlain, 4 Esp. 229. 115; Catlin v. Hills, 8 C. B. 123; « Barrett y. The Third Ave. R. R. Smith V. Smith, 2 Pick. 621 ; Cleve- Co. 45 N. Y. 628; sec Bennett v. R. land R, R. w. Terry, 8 Ohio St. 570; R. 36 N. J. 225, 867 § 397.] CONTRIBUTORY NEGLIGENCE : [BOOK I. tory. The comparative degrees in the culpability of the two will not, it was said, affect the liability of either. If both were negligent in a manner contributing to the result, they are liable jointly or severally. For, even if the plaintiff's conveyance is negligently driven, this does not excuse subsequent colliding neg- ligence by defendant.^ § 396. 4. Owner of cattle^ ^c, in suit against railroad for running them down. At common law persons 'permitting cattle to stray from inclosures are trespassers. — As will be hereafter seen, by the common law the owner of cattle is obliged to keep them within inclosures, and he is liable for any damage they may do by straying at large ; nor can he recover for any damage naturall}' received by them while so straying.^ To what extent this portion of the common law is in force in the United States is discussed in another chapter.^ § 397. But tliough cattle are trespassing on a road^ it is negli- gence for which the company is liable for the engineer to run them dotvn, when this can be avoided by precautions which a prudent and skilful engineer would take. — Undoubtedly it has been held by respectable courts that for the owner of cattle to permit them to run at large is such contributory negligence as precludes him from recovery from the company for their loss by a negligent collision.^ But this, on the reasoning heretofore given,^ cannot be sustained. Negligence does not throw those chargeable with it outside the pale of the law ; and railroads, from the risks they are exposed to from the negligence of others, should be the last to deny this rule. If a railroad can defend running over man or beast on the single plea that the man or the beast was negligently on the track, then a trespasser, negligently playing with signals or switches, could excuse himself on the ground that the railroad was negligently run. The true rule is that if the engineer could, by the exercise of the prudence and diligence of a good business 1 Bennett v. E. E. 36 N. J. 225 ; Denio, 255 ; 5. C 4 Comst. 349, as Chapman v. E. E. 19 N. Y. 341 ; Web- cited infra ; Wilds v. E. E. 24 N. Y. ster I'. E. E. 38 N. Y. 260 ; Tuff v. 430 ; Indianapolis, &c. E. E. v. Mc- Warman, 2 C. B. (N. S.) 740; aff. in Clure, 26 Ind. 3 70; as explained by S. C. 5 C. B. (N. S.) 573; Eigby v. Eay, C. J., in Bellefontaine E. E. v. Hewitt, 5 Excli. 540. Supra, § 335. Hunter, 33 Ind. 356, cited supra. See 2 See infra, § 883. Williams v. E. E. 2 Mich. 259 ; and 8 Infra, § 883. infra, § 893. * Tonawanda E. E. v, Munger, 5 5 Supra, § 345. 358 BOOK I.] COLLISION OF ANIMAL WITH TRAIN. [§ 397. man in his particular department, have escaped the collision, then the consequences of the collision cannot be avoided by the com- pany on the ground that the cattle injured were trespassers.^ At the same time a railroad, as will hereafter be more fully seen,^ is, independent of statutory requisitions, not bound to fence their roads, or to take other measures to prevent the incursions of cattle.3 1 Earaes v. S. & L. R. R. 98 Mass. 560 ; Toledo, P. & W. R. R. v. Bray, 57 111. 514 ; Toledo, P. & W. R. R. v. Ingraham, 58 111. 120; Rockford, Rock. I. & St. L. R. R. V. Lewis, 58 111. 49; Perkins v. East. R. R. 29 Me. 307 ; Towns V. Chephue, 21 N. H. 364; Cornwell v. Sullivan R. R. 28 N. H. 161 ; Mayberry v. Concord R. R. 47 N. H. 391 ; Locke v. R. R. 15 Minn. 351 ; Parker v. R. R. 34 Iowa, 399; Louis. & Nash. R. R. v. Wainscott, 3 Bush, 149 ; Cin. & Zanes. R. R. v. Smith, 22 Ohio St. 227; Needham v. R. R. 37 Cal. 417 ; Bemis v. R. R. 42 Vt. 375; Isbel v. R. R. 27 Conn. 393; Jones V. R. R. 70 N. C. 696 ; Chic, B. & Q. R. R. V. Seirer, 60 111. 295; and cases cited infra, § 893. 2 See infra, § 893-6. 8 Buxton V. N. E. R. R., L. R. 3 Q. B. 549; R. R. i;. Skinner, 19 Penn. St. 358 ; Jackson v. Rutland & B. R. R. 25 Vt. 150 ; Lord v. Wormwood, 29 Me. 282 ; Perkins v. E. R. R. 29 Me. 307 ; Tonawanda R. R. v. Mun- ger, 4 N. Y. 349 ; Cecil v. P. R. R. 47 Mo. 246 ; Toledo R. R. v. Wickery, 44 111. 76 ; Price v. N. J. R. R. 2 Vroom, 229. In Needham v. S. F. & S. J. R. Co. 37 Cal. 417, this point is discussed by Sanderson, J., as fol- lows : " This view of the law seems to be sustained by tlie New York cases, which counsel have cited. It has been held in that state that a railroad company is not liable for neg- ligently running its engine upon and killing duMiestic animals found upon its road, under circumstances similar to those presented by the record in this case. Tonawanda Railroad Co. V. Munger, 5 Denio, 255 ; same case, 4 Comstock, 349. The reason given for this rule is, that the owner of cat- tle found straying upon the road, al- though he may be guiltless of actual carelessness in allowing them to escape from his premises, is nevertheless guilty in law of a wrongful and negli- gent act, without which the injury complained of would not have hap- pened, and, therefore, having thus co- operated in causing the injury which he has sustained, he cannot be allowed to recover, whatever may have been the negligence of the defendant. That the defendant has an unqualified prop- erty in its road, and an lUKjualified right to occupy aud use it iu whatever manner may suit its pleasure and con- venience, and hence, whenever such occupation and use is wrongfully ob- structed, the defendant may lawfully remove the obstruction in any manner which, under the circumstances, it may find most convenient, provided it stops short of wanton and malicious mischief. In the case above cited, Mr. Chief Justice Beardsley said : ' Neg- ligence is a violation of tlie ol)ligation which enjoins care and caution in what we do. But this (hity is relative, and where it has no existence between particular parties, there can be no such thing as negligence in tlie legal sense of the terra. A vian it under no obligation to be cuulious and circumspect towards a irrony-iloer. A horse stray- ing in ft fielil falls into a pit left oov § 398.J CONTRIBUTORY NEGLIGENCE [book I. § 308. When there is imposed hy statute on the railroad a duty to fence ^ tlien neglect to fence ^ in consequence of which cattle stray open and unguarded ; the owner of the animal cannot complain, for, as to all trespassers, the owner of the field had a right to leave the pit as he pleased, and they cannot impute neg- ligence to him. But injuries inflicted by design are not thus to be excused. A wrong-doer is not necessarily an outlaAv, but may justly complain of wanton and malicious miscliief.' Pp. 266, 267. In keeping with this defi- nition of negligence, he also said, in a preceding portion of his opinion : ' The present action is founded on the alleged negligence of the agents and servants of the defendants in running their engine on the railway, whereby, as is charged, the plaintiff's oxen were killed. It is not charged the act was done designedly by the persons in charge, but, simply, that it occurred through negligence and want of care. It is a well settled rule of law that such an action cannot be sustained, if the wrongful act of the plaintiff co- operated with the misconduct of the defendants, or their servants, to pro- duce the damage sustained. I do not mean that the cooperative act of the plaintiff must be wrong in intention to call for the application of this prin- ciple, for such is not the law. The act may have been one of mere negli- gence on his part, still he cannot re- cover. Or his beast, while trespass- ing on the land of another person, and that without the consent or knowledge of its owner, may have been damnified through some careless act of the owner of the land, yet the fact of such tres- pass constitutes a decisive obstacle to any recovery of damages for such an injury. It is, strictly speaking, dam- num absque injuria.' This view of the law was sustained by the court of ap- peals in the same case, and seems to 360 have become the settled law of that state. See also Wilds v. Hudson River R. R. Co. 24 N. Y. 430. "To this doctrine, however, not- withstanding the very respectable au- thority by which it is sustained, we are unable to assent. About the gen- eral rule upon which it is founded — that a plaintiff cannot recover for the negligence of the defendant, if his own want of care or negligence has in any degree contributed to the result complained of — there can be no dis- pute. Gay V. Winter, 34 Cal. 153. The reason of this rule is, that both parties being at fault, there can be no apportionment of the damages, and not that the negligence of the plaintiff" justifies or excuses the negligence of the defendant, which would seem to be the true reason in the estimation of the New York courts. The law does not justify or excuse the negli- gence of the defendant. It would, notwithstanding the negligence of the plaintiff, hold the defendant responsi- ble, if it could. It merely allows liim to escape judgment, because, from the nature of the case, it is unable to as- certain what share of the damages is due to his negligence. He is both legally and morally to blame, but there is no standard by which the law can measure the consequences of his fault, and therefore, and therefore only, he is allowed to go free of judgment. The impossibility of ascertaining in what degree liis negligence contrib- uted to the injury being then the sole ground of his exemption from liability, it follows that such exemption cannot be allowed where such impossibility does not exist ; or, in other words, the general rule, that a plaintiff" who is him- self at fault cannot recover, is limited by the reason upon which it is founded. BOOK I.] COLLISION OF ANIMALS WITH TRAIN. [§ 398. on the road and are injured, makes the road liable for the injury. — But, independently of the questions just discussed, is to be no- " The golden rule is a corner-stone of the law as well as of morals, and in the department of the former finds its expression in the maxim : Sic utere tuo, ut alienum non laedas. No more in law than in morals can one wrong be justified or excused by another. A wrong-doer is not an outlaw, against whom every man may lift his hand. Neither his life, limbs, nor property are held at the mercy of his adversary. On the contrary, the latter is bound to conduct himself with reasonable care and prudence, notwithstanding the fault of the former; and if, by so doing, he can avoid injuring the per- son or property of the former, he is liable if he does not, if, by reason thereof, injury ensues. The error of the New York court lies in the fact that they ignore all distinction be- tween cases where the negligence of the plaintiff is proximate and where it is remote, and in not limiting the rule, which they announce, to the former." It should be added, however, that in Sheaf v. Utica, &c. R. R. 2 N. Y. Supreme Ct. 388 (1874), and Fanning V. Long I. R. R. Ibid. .585, the old rule in New York, as above controverted, appears to be abandoned. In Cin. & Zanesv. R. R. Co. v. Smith, 22 Ohio St. 227, it is said, by White, J. : " The court instructed the jury that the defendant had the right to the free and unobstructed use of its rail- road track, and that the paramount duty of its employees was the protec- tion of the passengers and property in the train, and the train itself. Rut this being their paramount duty, they were bound to use ordinary care and diligence so as not unnecessm-ili/ 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 en- joyment of his own rights, ought not to use ordinary care so as not unneces- sarily to injure the property of others. " It is true, the rule contended for by the counsel of the plaintiff in error is sustained by a number of authori- ties. But the later and better consid- ered cases are to the contrary. Illi- nois Central R. R. Co. v. Middles- worth, 46 111. 494 ; Berais v. Conn. &c. R. R. 42 Vt. 375 ; Isbel v. N. Y. R. R. Co. 27 Conn. 393; Redfield's Amer. Railway Cases, 355, 356. " The rule contended for has never been adopted in this state. It is, moreover, as respects railroad com- panies, 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 Oh. St. 424, cited and relied upon by the counsel of the plaintiff in error, were different from those in the case now before us, and we do not regard the rule there laid down, as to the liability 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 un- objectionable 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 ordinary care to avoid injuring animals on the track, they wore, of course, bound 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 ])lace of collision with the horses, was a circiunstance to be con- 3G1 § 398.] CONTRIBUTORY NEGLIGENCE : [book I. ticed tliat which arises when a statute requires a railroad to fence ill its track. This is a positive duty, the neglect to comply with which renders the company liable, in case, through such neglect, cattle wander on the road and are injured.^ Hence, where a statute makes a railroad responsible for injury done, through its neglect in fencing, to cattle running at large, it is no defence that such cattle were not legally running at large, but were required to be inclosed by a local county regulation.^ At the same time the obligation on the part of a railroad to build fence does not relieve persons owning cattle or other animals from obligation to guard them with due care.^ sidered, in connection -with the other circumstances of the case, in determin- ing whether the engineer was guilty of negligence in not looking ahead and discovering the danger in time to avoid it. The fact that the road was fenced rendered 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 look-out ahead of the train. " If the servants of the company, in charge of the train, having due regai-d 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 Avere bound to have done so." Bemis v. Conn. &c. R. R. supra, 381 ; Louis. & Nash. R. R. Co. v. Wainscott, 3 Bush, 149. 1 See infra, § 887, 891-2; Hinman V. Chic, R. I. &c. 28 Iowa, 491 ; Swift V. N. Mo. R. R. 29 Iowa, 243 ; Toledo, &c. R. R. V. Weaver, 34 Ind. 398; Toledo, &c. R. R. v. Cory, 39 Ind. 48 ; Walsh V. V. & T. R. R. 8 Nev. 110 ; McCoy V. Cal. Pac. R. R. 40 Cal. 532; Bay City v. Austin, 21 Mich. 390; Corwin y. N. Y. & E. R. R. 13 N. Y. 42 ; 34 N. Y. 427; Sheaf u. Utica, &c. R. R. 2 N. Y. Supr. Ct. 388. See Fanning v. Long I. R. R. 2 N. Y. Supr. Ct. 585. 362 2 See infra, § 892 ; Stewart v. B. & M. R. R. 32 Iowa, 561; Spence v. N. W. R. R. 25 Iowa, 139 ; Fernew v. Dubuque & S. W. R. R. 22 Iowa, 528; Fritz V. Mlwaukee & St. Paul R. R. 34 Iowa, 337. The fact that plaintiff's horses en- tered the close of another, through an insufficient fence upon the highway, and passed from thence upon the de- fendants' road, could not affect his right of recovery. Chic. & N. W. R. R. V. Harris, 54 111. 528. And in this case, upon objection that the plain- tiff was so far in fault in permitting his horses to run at large, when pro- hibited by the statute, that he should not be permitted to recover, it appear- ing the escape of the horses was invol- untary on his part, that he made rea- sonable efforts to reclaim them soon after their escape, but was unsuccess- ful, continuing the search for them until dark of the night, they were in- jured, and when last seen by him, while endeavoring to get them up, they were going in an opposite direc- tion from the railroad, it was held, the negligence of the defendants was so much greater than that of the plain- tiff, that, when compared, that of the latter was slight, and rendered the defendants liable for the injury. Ibid. 2 Joliet & North. Int. R. R. r. Jones, BOOK I.] DEFECTS ON HIGHWAYS. [§ 400. § 399. 5. Owner of goods and cattle in suit against carrier for lad carriage. — This topic is so mingled with that of the carrier's duty in this respect, that it is reserved for future con- sideration.^ § 400. 6. Traveller injured in highivay. — The question of contributory negligence on highways will be hereafter incidentally noticed when the general subject is discussed.^ At present one or two points may be distinctively stated. Person cannot recover who voluntarily and unnecessarily strikes an obstruction. — A person who knows a defect on a highway, and voluntarily undertakes to test it, when it could be avoided, cannot recover against the municipal authorities for losses incurred through such defect.^ But the question of due care is for the jury. Thus, if it appear that if there is danger in treading on a piece of ice, and the plaintiff voluntarily and unnecessarily undertakes to walk over it, when he could plainly see it, and easily avoid it, and falls and breaks a limb, he is precluded from recovery."^ 20 111. 221 ; Terre Haute & St. L. R. of the failure on the part of the com- R. V. Augustus, 21 111. 186 ; C, B. & Q. R. R. V. Cauffman, 28 111. 513; C, B. & Q. R. R. V. Seirer, 60 111. 295 ; C, B. & Q. R. R. V. Magoe, 60 111. 529. The Nevada law providing that com- panies shall " maintain a good and suffi- cient fence on either or both isdes of their property," taken in connection with the further provision that they shall be liable for the killing of domes- tic animals " when they stray upon their line of road where it passes through or alongside of the property of the own- ers thereof," simply requires com- panies to fence their road where it may run through or alongside of the land of private individuals ; that is, on either or both sides, as occasion may demand ; and even then the fencing is only for the protection of adjoining owners, and no other person can complain of the •want of it. It is held that the law (Stats. 1864-5, 427, sec. 40) docs not require railroad companies to fence their road where it runs through pub- lic land. It is further said, that if cat- tle stray upon a railroad directly from the land of their owner, and by reason pany to fence theii* road at that point, and are killed, the company would be held liable under the railroad act (Stats. 1864-5, 427, sec. 40), on a sim- ple showing of the facts of such killing and neglect to fence, without any fur- ther showing of negligence ; but it is otherwise if they stray from public land, or from land not belonging to their owner. Walsh v. V. & T. R. R. 8 Nev. 110. 1 See infra, §563, 614-9. 2 See infra, § 960 e( seq. 8 Horton v. Ipswich, 12 Cush. 488; Wilson V. Chariest own, 8 Allen, 137; Lyman r. Amherst, 107 Mass. 339; Frost V. Waltham, 12 Allen, 85. Under the Massachusetts statute it has been ruled that the plaintilf can- not recover if the evidence in the cause is consistent equally with his diligence or his negligence. Cr;ifts v. Boston, 109 Mass. 519. * Durkin v. The City of Troy, 61 Barb. 437. See Willey v. Belfast, 61 Me. 569; City v. Ilildebrand, 61 III. 155. 3G3 § 404.] CONTRIBUTORY NEGLIGENCE : [liOOK I. § 401. Going off prepared track. — As will be seen, it is the duty of the traveller to follow the prepared track. Where, how- ever, this is imperceptible, on account of snow-drifts, a passenger may follow the line of travel on a road without contributory neg- ligence. ^ § 402. Traveller hound to look out. — This is a fundamental principle, which lies at the base of this branch of the law.^ Yet even here there are distinctions to be observed. It is not negli- gence to travel a road in the dark, when there can be no look- out.3 Nor is it necessary that the traveller should have perfect eyesight, though it would be negligence m a blind man to under- take to travel a road unattended.^ The same rule applies to drunken men.^ § 403. Not conclusive defence that traveller kneiv of the de- fect and did not avoid it. — A traveller may be entitled to pre- sume that a defect observed by him would have been removed. Aside from this, his forgetfulness, in many cases, may be imputed to causes other than negligence. And even supposing him to be negligently absent-minded or forgetful, the town on this ground cannot be excused for putting obstacles in his way.^ Again : if necessary, the danger may be rightfully braved, and the town held liable for the consequences ; but it is otherwise when the traveller, from mere foolhardiness, knowing a defect exists, rushes against it, when he also knows that it could be avoided by taking another side of the road.'^ But the fact that a road is defective does not oblige him to take another less convenient road which is safe.^ § 404. Unskilfidness of driver. — Public roads are meant to be driven in by drivers of all classes. When, however, unskilful- * Infra, § 968; Coggswell v. Lexing- taker v. TV. Boylston, 97 Mass. 273; ton, 4 Cush. 307. See Gerald v. Bos- Smith v. Lowell, 6 Allen, 39 ; Snow v. ton, 108 Mass. 580; Hayden v. Attle- Housatonic R. R. 8 Allen, 441; Fox borough, 7 Gray, 338. v. Glastenbury, 29 Conn. 204; Hum- 2 Davenport v. Ruckman, 37 N. Y. phreys v. Armstrong Co. 56 Penn. St. 568. 204; Achtenhagen v. Watertown, 18 8 Williams v. Clinton, 28 Conn. 264. Wise. 331. 4 See infra, § 995 ; supra, § 42, 307. 7 Hubbard v. Concord, 35 N. H. « Cassidy v. Stockbridge, 21 Vt. 52; Horton y. Ipswich, 12 Cush. 488; 391; Alger v. Lowell, 3 Allen, 402; Wilson v. Charlestown, 8 Allen, 137; supra, § 306, 332. James v. San Francisco, 6 Cal. 528. « Folsom V. Underbill, 36 Vt. 580; 8 infra, § 994, Fox V. Sackett, 10 Allen, 553 ; Whit- 364 BOOK I.] PUBLIC GAMES. [§ 406. ness is such as to unfit for ordinary purposes of driving, and when it causes the damage, then it is a bar to recovery .^ § 405. Sunday travel. — Under the Massachusetts statute, fining a person travelling on Sunday except from necessity or charity, it is ruled that such a traveller cannot recover from the town for injuries sustained when travelling, unless from necessity or charity .2 This, however, does not apply to a person walking on a highway on Sunday for exercise,^ nor to a person going to religious worship, no matter how eccentric such worship may be.* But, as has been already seen,^ the Massachusetts rule on this topic is exceptional, and cannot be sustained consistently with those broad principles of the law of negligence which have just been detailed. § 406. 7. Particiijant injured in public games. Q-enerally no liability on either side unless there he malice. — The Roman law gives us the following illustration of this principle : " Si quis in colluctatione vel in pancratio vel pugiles dum inter se exer- centur alius alium occiderit, siquidem in publico certamine alius alium occiderit, cessat Aquilia, quia gloriae causa et virtutis, non injuriae gratia videtur damnum datum. Hoc autem in servo non procedit, quoniam ingenui solent certare : in filio fam. vulnerato procedit : plane si cedentem vulneraverit erit Aquiliae locus." ^ In other words, no liability attaches to the wounding or killing (if the rules of the game be preserved, and no malice shown) of a freeman in a wrestling match or other public game. While the trial of strength continues it is the understanding of the game that each party exerts all the strength at his command ; and each party goes into the game with full notice that this will be done. When, however, the game is ended, then the conqueror must exhibit diligentia in his treatment of his prostrate antag- onist. And the game, to protect its participants, must be a hand fide match, gloriae et virtutis causa. A wrestling match with a slave did not fall under this head ; it was no " gloria " to over- 1 Flower v. Adams, 2 Taunt. 314; » Hamilton v. Boston, 14 Allen, Buttcrfickl V. Forrester, 11 East, GO; 4 7."). Reed f. Deerfiekl, 8 Allen, 522; Bijre- * Feital v. R. R. lo9 Mass. 3'J8; low V. Rutland, 4 Cush. 247; Dlniock supra. § ;i30, 3.S1 a. V. Shcllield, 30 Conn. 129. » Supra, § 331, 3S1 a. 2 Bosworth v. Swansey, 10 Mete. " L. 7. § 4. leg. Acj. ; Pernioe, p. 54. 363; Jones v. Andover, 10 Allen, 18. 865 § 407.] NEGLIGENCE. [BOOK I. come a slave in such a trial. It was otherwise, so argues Pernice,^ with the game of ball, as appears by the following extract : " Cum pila complures luderent quidem ex his servulum cum pilam percipere conaretur impulit : servus cecidit et crus fregit. Quaerebatur: an dominus servuli lege Aq. cum eo cujus impulsu ceciderat agere potest ? Respond i non posse, cum casu magis quam culpa videretur factum.^ Here the presumption indicates casus. In this case, however, the game is not limited to the ingenui. The case is therefore one in which slave and freeman stood alike ; the former having no greater privilege than the other. Here also, from the nature of the game, the idea of dili- gentia is excluded ; the players of one side seeking to hinder the players of the other side from catching the ball, and a struggle therefore accepted which cannot go on without the risk of bruises and falls. In such case a hurt received in the" usual course of the game cannot be regarded as culpa. In games, therefore, which are sanctioned by long usage and by indirect if not direct legal sanction, there is no application of the maxims, Lusus quoque noxius in culpa est,^ and Non debet esse impunitas lusus tarn per- niciosus.^ III. RELATIONS OF LAW AND FACT. § 407. This topic will be hereafter distinctively discussed.^ ^ Op. cit. p. 54. ton's case, 1 Lewin, 179 ; "Wh. Crim. 2 L. 52. § 4. D. h. t. Law (7th ed.), § 1012. And see as 3 L. 10. § 4. D. leg. Aq. to fireworks, infra, § 881. 4 L. 50. § 10. D. h. t. See also & Infra, § 423. Penn. v. Lewis, Addison, 279; Fen- 366 CHAPTER X. IGNORANCE AS A DEFENCE. Ignorance of law, § 410. Keasons why such ignorance is no de- fence, § 410. Law presumed to be known by all, §411. Courts have no capacity to determine such ignorance, § 412. Public safety endangered by contrary view, § 413. Distinction between ignorance of a specialist and that of a non-specialist, §414. Ignorance of fact, § 415. Facts as to which defendant ought to be cognizant, § 415. Facts with which he does not claim to be cognizant, § 41G. I. IGNORANCE OF LAW. § 410. Ignorance is a defence so constantly made to suits for negligence that it demands from us particular and distinct con- sideration. The first phase in which it presents itself is that of ignorance of law ; and here the rule is both emphatic and uni- form. Ignorance of the law is no defence to suits either criminal or civil. As, however, the amount of damages often depends largely on the jury's conception of the reasonableness of this rule, it is proper to pause to consider on what this reasonableness rests. § 411. 1. The law is presumed to be known hy all persons sub- ject to it. — But even supposing this were one of those fictions of law, which, as lyresumtiones juris et de jure^ the law does not permit to be impugned, a jury could rarely be persuaded to give more than nominal damages on a case resting on a fiction they know to be false in fact. No man knows all the laws of the land in which he lives, to say nothing of the laws of foreign lands, and the law of nations, which the laws of his own land under certain circumstances embrace. The most eminent and experienced judges, for instance, when called upon to act without study or counsel, in their private affairs ( Cal. 18S; Sei^'el v. Eisen, 41 Cal. I<>;': Whirl v i-. White- a73 § ^21.] NEGLIGENCE [book I. § 421. In actions for injuries not based on contract the burden of froof of negligence is on the j^lciintiff. — " To warrant," says man, 1 Head, 610; Un. Pac. R. R. v, Rollins, 5 Kan. 180; Kansas P. R. R. V. Butts, 7 Kan. 315; Green v. Hol- lingsworth, 5 Dana, 173; Matheny v. Wolffs, 2 Duv. 137; State v. The Manchester & Lawrence Railroad, 52 N. H. 528; Viuer v. N. Y. A. G. & W. S. Co. 50 K Y. 23 ; McGrath v. N. Y. C. & H. R. R. 1 N. Y. Supr. Ct. 243 ; Barton v. N. Y. C. & H. R. R. 1 N. Y. Supr. Ct. 297 ; Totten V. Phipps, 52 N. Y. (7 Sickles) 354 ; Matteson v. N. Y. Cent. R. R. 62 Barb. 364 ; Johnson v. W. C. & P. R. R. 70 Penn. St. 357; West Ch. & P. R. R. V. McElwee, 67 Penn. St. 311 ; Kay v. Penn. R. R. 65 Penn. St. 269; Penn. C. C. V. Bentley, 66 Penn. St. 30; Gil- lespie V. City, 54 N. Y. 468; City v. Hildebrand, 61 111. 155 ; Phil. R. R. V. Hassard, Leg. Int. June 19, 1874; Cent. L. J. July 30, 1874. That question of reasonable care is for jury, see Hackett v. Middlesex Man. Co. 101 Mass. 101 ; Eagan v. Fitchburg R. R. 101 Mass. 315. See Carter v. Russell, 101 Mass. 50; Rey- nolds V. Hanrahan, 100 Mass. 313; Warren v. Fitchburg R. R. 8 Allen, 227 ; Johnson v. Hudson River R. R. 20 N. Y. 65 ; Simmons v. New Bedf. Vineyard & N. Steamboat Co. 100 Mass. 34; Barron v. Eldridge, 100 Mass. 455; Cook o. Met. R. R. 98 Mass. 361. Whei'e evidence is indisputed, question one of law. — Where the evidence is all one way, the court may determine the whole case as a question of law ; and while the credibility of witnesses and the weight of evidence are for the jury, whether there is any evidence, or what its legal eifect may be, is to be decided by the court. Boland v. Mis- souri R. Co. 36 Mo. 491; S. P. Trow V. Vt. Cent. R. R. 24 Vt. 497 ; Sex- 374 ton V. Zett, 44 N. Y. 430; Chic. & A' R. R. 58 111. 226. In Pennsylvania, as stated in aq ex- cellent article in the American Law Register for May, 1874, the follow- ing exceptions are recognized: "1st. Where the standard or measure of duty is defined by law, and is the same under all circumstances. 2d. Where there is such an obvious disregard of duty and safety as amounts to miscon- duct. W. C. & P. R. Co. V. McElwee, supra ; N. P. R. Co. v. Heilman, 49 Pa. St. 63 ; Glassey v. Hestonville, &c. R. Co. supra. The following are cases of negligence per se : Reeves r. Del., Lack. & West. R. Co. 30 Ibid. 454; held, that it was negligence for a train to approach a public crossing, on a curve and through a deep cut, at a high rate of speed. Powell v. Penna. R. Co. 32 Ibid. 414, held negligence in defendants to use straw for bedding stock in cars where there was expo- sure to sparks from the locomotive. Penna. R. Co. v. Zebe, 33 Ibid. 318 ; where the plaintiff's son stepped off the cars on the side opposite the plat- form, and was killed by a passing train See also Penna. R. Co. v. Ogier, 3 5 Ibid. 60, citing Reeves v. D., L. & W. R. Co. and Penn. R. Co. v. Zebe, su- pra. Citizens' Ins. Co. v. Marsh, 41 Ibid. 395; held negligence, or rather misconduct, for the captain of a steam- boat, racing on the Mississippi, to stand a barrel of oil of turpentine near the furnace to use upon the wood as it went into the fire, whereby the steam- boat was destroyed by fire. North Penna. R. Co. v. Heilman, 49 Ibid. 60, where the plaintiff approached a rail- road track without looking out for a train. To the same effect is the late case of Penna. R. Co. v. Beale, 30 Leg. Int. 232, affirming that case, where BOOK I.] PROVINCES OF COURT AND JURY. [§ 421. Erie, C. J.,^ " a case of this class being left to the jury it is not enough that there may be some evidence. A mere scintilla of Sharswood, J., says : ' There never was a more important principle settled than that the fact of the failure to stop im- mediately before crossing a railroad track is not merely evidence of neg- ligence for the jury, but negligence per se, and a question for the court.' Pittsburg & Connellsville 11. Co. v. McCIurg, 56 Pa. St. 300, where a pas- senger in a railway car voluntarily put his arm outside the car window and was injured. Glassey v. Hestonville, &c. R. Co. 57 Ibid. 172, where it was held in an action by a parent, that he was neg- ligent in law in allowing his son, less than four years of age, to run at large in the street without a protector. Em- pire Transportation Co. v. Wamsutta Oil Co. 63 Ibid. 14, where part of the measure of duty resting uj)on defend- ants as common carriers was to have perfect car-couplings. The defend- ants' oil-train caught fire, and by rea- son of a defective coupling the car containing plaintiff's oil could not be uncoupled, but was consumed, with its contents, although it could otherwise have been saved. The jury were in- structed to find for the j)laintitF. " To show the limits of the rule in this state, the following cases may be added, which were, under the circum- stances, held proper to go to the jury : Penna. R. Co. v. Barnett, 59 Pa. St. 259 (where the whistle of the locomotive was not sounded at a crossing) ; Mc- Cully V. Clark, 40 Il)id. 399 (where the defendants permittrd a large heap of burning coal to n'nuiiu unextin- guished, by which the plaiMtilPs ware- house was destroyed) ; Iluyett v. Phila. & Read. R. Co. 23 Ibid. 373 (where fire was communicated by the emis- sion of sparks from a locomotive) ; Johnson v. Bruner, 61 Ibid. 58 (where a servant fell through an open hatch- way in defendant's niillj ; Johnson r. West Chester & Phila. R. Co. 70 Ibid. 357 (where, under peculiar circum- stances, the plaintiff stepped on a train in motion) ; Kay v. Penna. R. Co. 65 Ibid. 269." In a late case in Massachusetts, (Fisk V. Wait, 104 INIass. 71), the evi- dence was that A. and his minor son B. were in the vestibule of their house preparing to set otf fireworks while a procession was passing, when C. fired a rocket, from his house opposite, which struck and injured B. Many rockets and other fireworks were set off by other persons while the proces- sion was passing the house. It was held, in an action against C. for the injury as caused by his negligence, that the question whether A. and B. were careless in being in the vestibule was for the jury. And it was further ruled, also, that evidence offered by C, that he and A. were members of a club, which got up the procession, and ])ub- lished notices calling on citizens to decorate and illuminate their houses along its route, but not mentioning fireworks ; that they both decorated and illuminated their houses, in aid of the object of the ])rocession and in pursuance of the call ; that C. fired the rocket as a part of his illumina- tion ; and that no one had license to set off fireworks on the occasion, — was immaterial. In Brooks v. Somerville, 106 ^lass. 271, it was said by Ames, J. : " It is too well settled to he now brought in question, that there may 1h' n state of things in the trial of a cause, in which it is the duty of the court either to in- 1 Cotton V. Wood, 8 Com. B. N. S. 56S. 375 § 421.] NEGLIGENCE [book I. evidence is not sufficient, but there must be proof of well-defined The plaintiff, therefore, must give some affirmative negligence. struct the jury that tlicre is no evi- dence upon which the plaintiff is en- titled to recover, or on which the other party can maintain his defence. Such a course of proceeding in a proper case is not an invasion of the province of the jury. The rule of law upon which it depends is simple and intel- ligible in itself, although, in the wide diversity of the cases in which it is discussed, there is some practical diffi- culty in its application, and perhaps some apparent conflict in the decisions upon the subject. Thus, upon this subject of negligence, it has been held as matter of law, that an attempt to cross a raih'oad train by going be- tween two cars in motion (Gahagan v. Boston & Lowell Railroad Co. 1 Al- len, 187); leaving a train of cars after it had started (Lucas v. Taunton & New Bedford Railroad Co. 6 Gray, 64) ; leaping from a train while in mo- tion (Gavett V. Manchester & Law- rence Railroad Co. 16 Gray, 501) ; crossing a railroad track in front of an approaching train without looking up (Butterfield v. Western Railroad Co. 10 Allen, 532; Wilds y. Hudson River Railroad Co. 24 N. Y. 430) ; if without any reasonable excuse, are facts upon which the jury should be told that they cannot find that the party so conducting was in the exer- cise of due and reasonable care. But in all of these cases there was no dis- pute about the facts ; nothing ma- terial was left in doubt; there was no question as to the credibility of wit- nesses ; and nothing was left to be in- ferred in the way of explanation or excuse. In such cases, the court may properly decide that no case is proved which could in law supj)ort a verdict for a plaintiff, and that the testimony furnishes nothing for the considera- 376 tion of the jury. In Denny v. Wil- liams, 5 Allen, 1, this court has said that it is not necessary, in order to ap- ply the rule, that there should be ab- solutely no evidence, provided the scintilla of evidence be so slight that the court would feel bound to set aside any number of verdicts resting on no other foundation. " It is impossible to say that the case at bar falls within the nile. It is enough that the facts were in dispute; there certainly was evidence tending to show that there were no lights at the opening where the plaintiff fell ; and whether there were any lights in the neighborhood, and if so, how near, and where, and whether they were sufficient to reach the spot where she fell, were all matters in controversy, upon which the jury alone could de- cide. Whether they have judged correctly as to the weight and suffi- ciency of the evidence is not the question submitted for our determina- tion." In W. C. & P. R. R. Co. V. McEl- wee, 67 Pa. St. 315, Williams, J., said : " It is always a question for the jury, when the measure of duty is ordinary and reasonable care. In such cases the standard of duty is not fixed but variable. Under some circumstances a higher degree of care is demanded than under others. And when the standard shifts with the circumstances of the case, it is in its very natui'e in- capable of being determined as mat- ter of law, and must be submitted to the jury to determine what it is, and whether it has been complied with. But when the standard is fixed, when the measure of duty is defined by the law, and is the same under all circum- stances, its omission is negligence, and may be so declaimed by the court. BOOK I.] PROVINCES OF COURT AND JURY. [§ 421. evidence of the existence of such negligence, and the mere hap- pening of an accident is not sufficient evidence to be left to the And so, when there is such an ob- vious disregard of duty and safety as amounts to misconduct, the court may declare it to be negligence as matter of law. But where the measure of duty is not unvarying, where a higher degree of care is demanded under some circumstances than under oth- ers ; where both the duty and the ex- tent of its performance are to be as- certained as facts, a jury alone can determine what is negligence, and whether it has been proved. Mc Cully V. Clark & Thaw, 4 Wright, 399; Cit- izens' Ins. Co. V. Marsh, 5 Ibid. 386 ; North Penna. llailroad Co. v. Ileil- man, 13 Ibid. 60; Pittsburg & Con- nellsville Railroad Co. v. McClurg, 6 P. F. Smith, 295 ; Glassey v. Ileston- ville, &c. Passenger Railway Co. 7 Ibid. 172; Penna. Railroad Co. v. Barnett, 9 Ibid. 269 ; Johnson v. Bruner, 11 Ibid. 58." In Morange v. Mix, 44 N. Y. 322, Leonard, C, said : " The defendant's counsel refers to several cases which hold that an agent is responsible only for the actual damages sustained by his principal. lie assumes, however, that the burden of proof rests upon the plaintiff to prove that his remedy on the covenants of the deed was not available. The cases cited by him are to the contrary effect. Allen v. Suy- dam, 2Q Wend. 321 ; Blot v. Boiceau, 3 Comst. 78 ; Walrod v. Ball, 9 Barb. 271. The case of Allen i\ Suydam was an action fur negligence in pre- senting a draft for acce[)tance. It ap- peared that the l)ill would not have been accepted if it had been presented in season, and that the drawer had failed, and probably would not have paid it had it been protested in due season. The judge instructed the jm-y that the amount of the draft was prima facie the measure of damages. The court of errors held that this was error ; that the jury should have been told to find only such damages as they believed from the evidence probable that the plaintiff might have sustained from the neglect to present the drafl in due season (page 330). The case of Blot V. Boiceau presents the same principle. The plaintiff consigned merchandise to the defendants for sale, and limited them as to the price at which they should sell. Having proved these facts, the plaintiff rested his case. The defendants offered to prove that the value of the articles was obtained, and that they cuuld not have been sold at a higher price up to the time of the trial. This evidence was excluded. On appeal, this was held erroneous ; that it w;is comjietent for the factor to show that the goods were worth no more, down to the time of the trial, than the price at which they were sold; that, prima facie, the in- voice price was the actual value, and if no other evidence had been offered the plaintiff should have recovered according to his claim (page 84). The other case of Walrod v. Ball is to the same eficct. The defendant, who undertook to collect a written obliga- tion for the plaintiff, said, when he received it, that he presumed the maker was good. Ili-ld, that was prima facie evidence that the maker was good for the whole amount, and that the defendant was liahh' for neg- ligence in not attempting to collect ; that the onus was on the defendant to show it, if the maker was insolvent, as that was his excuse for neglecting to prosecute. If the cases cited by the defendant are analogous at all. they fail to maintain his position. There was no evidence that the remedy 377 § 421.] NEGLIGENCE [book I. jury.^ The same rule, as has already been shown in the discus- sion of cases of collision with persons crossing railroads and with against Liolitenstcin on tlie covenants of his deed was available. It was the duty of the defendant to prove that the plaintiff had sustained no damages, or that he had another sufficient rem- edy to which he ought to resort, before he could claim a verdict on that ground. The exception does not point directly to the ground now urged. The judge may have supposed, from the excep- tion to the portion of his charge con- taining two propositions, as to the measure of damages (the principal sum paid, and the interest), that coun- sel objected to the rule as to interest. The exception should state specifically the grounds upon which it rests, unless it is distinctly and readily apparent from the subject referred to. Although defectively taken in this respect, the of the plaintiff to have the question submitted to the jury, whose decision is conclusive in this court. It was said that in cases so near the border line • between fact and law that nice dis- crimination is required to determine to which side it belongs; where the verdict of the jury has been sustained by the general term, this court will presume in favor of the judgment that the questions were properly submitted to the jury, and will require the party alleging error to show it with reason- able certainty. Hackford v. N. Y. C. & H. R. R. Co. 53 N. Y. 654. In R. R. V. Stout, 17 Wall. 659, it was said by Hunt, J. : " It is true, in many cases, that where the facts are undisputed the effect of them is for the judgment of the court, and not for the exception is bad on the merits " decision of the jury. This is true in So it has been held in New York, that where in an action against a rail- road corporation, to recover damages for injuries received at a railroad cross- ing by a traveller on the highway, by the conceded or undisputed facts some act or omission is established on the part of the person injured, which of itself constitutes negligence, it is the duty of the court to nonsuit the plain- tiff, and a refusal to do so is error at law. But if the fact depends upon the credibility of witnesses, or upon inferences to be drawn from the cir- cumstances proved, about which honest men might differ, then it is the right that class of cases where the existence of such facts come in question rather than where deductions or inferences are to be made from the facts. If a deed be given in evidence, a contract proven, or its breach testified to, the existence of such deed, contract, or breach, there being nothing in deroga- tion of the evidence, is no doubt to be ruled as a question of law. If a sane man voluntarily throws himself in con- tact with a passing engine, there be- ing nothing to counteract the effect of this action, it may be ruled as a matter of law that the injury to him resulted from his own fault, and that no action ^ Scott V. London & St. Cath. R. Docks, 3 H. & C. 596 ; Losee v. Buchanan, 51 N. Y. 476 ; Hammack V. White, 11 Com. B. N. S. 588 ; 31 L. J. C. P. 129; Toomey v. London & Brighton Railway Co. 3 Com. B. N. S. 146 ; Morgan v. Sim, 11 Moore P. C. 312 ; McCully v. Clarke, 40 Penn. 378 399 ; Batchelder v. Heagan, 16 Shep. 32 ; McGinity v. Mayor, 5 Duer, 674 ; Chicago V. Mayor, 18 111. 349 ; Glid- don V. McKinstry, 28 Alab. 408. As to burden of proof in actions for neg- ligent communication of fire, see infra, § 867, 870. In railway colUsion with cattle, § 899. BOOK I.] PROVINCES OF COURT AND JURY. [§ 421. stock, obtains in this country.^ " No one," says Judge Field, in 1872, in the supreme court of the United States, " is responsible can be sustained by him or his represen- tatives. So if a coach driver intention- ally drives within a few inches of a pre- cipice, and an accident happens, neg- ligence may be ruled as a question of law. On the other hand, if he had placed a suitable distance between his coach and the precipice, but by the breaking of a rein or an axle, which could not have been anticipated, an injury occurred, it might be ruled as a question of law that there was no neg- ligence and no liability. But these are extreme cases. The range between them is almost infinite in variety and extent. It is in relation to these in- termeiliate cases that the opposite rule prevails. Upon the facts proven in such cases, it is a matter of judgment and discretion, of sound inference, what is the deduction to be drawn from the undisputed facts. Certain facts we may suppose to be clearly established, from which one sensi- ble, impartial man would infer that proper care had not been used, and that negligence existed ; another man equally sensible and equally impar- tial would infer that proper care had been used, and that there was no neg- ligence. It is this class of cases and those akin to it that the law commits to the decision of a jury. Twelve men of the average of the community, comjirising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant, the mechanic, the farmer, the laborer; these sit to- gether, consult, apply their separate experience of the affairs of life to the facts proven, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man ; that they can draw wiser and safer con- clusions from admitted facts thus oc- curring than can a single judge. " In no class of cases can this prac- tical experience be more wisely ap- plied than in that we are considering We find, accordingly, although not unifonn or harmonious, that the au- thorities justify us in holding, in the case before us, that although the facts are undisputed, it is for the jury and not for the judge to determine whether proper care was given, or whether they establish negligence. " In Redfield on the Law of Rail- ways (vol 2, p. 231), it is said : ' And what is proper care will often be a question of law, where there is no con- troversy about the facts. But ordi- narily, we apprehend, where there is any testimony to show negligence, it is a question for the jury.' Quimby V. Vermont Central Railroad, 23 Ver- mont, 387; Pfau v. Reynolds, 53 Illi- nois, 212; Patterson v. Wallace, I McQueen's House of Lords Cases, 748. " In Patterson v. Wallace (McQueen's House of Lords Cases, 748) there was no controversy about the facts, but only a question whether certain facts proved established negligence on the one side, or rashness on the other. The judge at the trial withdrew the case from the jury, but it was held in the house of lords to be a pure ques- tion of fact for the jury, and the judg- ment was reversed. 1 Comstock V. Des Moines R. R. 32 18 Nev. 110 ; B. & O. R. R. v. Fitz- lowa, 3 76 ; Walsh v. Virg. & T. K. R. patrick, 3.> Md. 32. 379 § 421.] NEGLIGENCE [book I. for injuries resulting from unavoidable accident, when engaged in a lawful business. A party charging negligence as a ground of action must prove it. He must show that the defendant, by his act or by his omission, has violated some duty imposed on him, which has caused the injury complained of." ^ But the very nature of the accident may of itself, and through the pre- sumptions it carries, supply the requisite proof. ^ " In IMangam v. Brooklyn Railroad (38 New York (11 TifTany), 455), the facts in relation to the conduct of the child injured, the manner in which it was guarded, and how it escaped from those having it in charge, were undis- puted. The judge at the trial ordered a nonsuit, holding that these facts es- tablished negligence in those having the custody of the child. The court of appeals of the State of New York held that the case should have been sub- mitted to the jury, and set aside the nonsuit. In Detroit & W. R. R. Co. v. Van Steinberg (17 Michigan, 99), the cases are largely examined, and the rule laid down, that when the facts are disputed, or when they are not dis- puted but different minds might hon- estly draw different conclusions from them, the case must be left to the jury for their determination It has been already shown that the facts proved justified the jury in finding that the defendant was guilty of neg- ligence, and we are of opinion that it was properly left to the jury to de- termine that point." " See, among other cases cited, the following: Carsly v. White, 21 Pick- ering, 256 ; Rindge v. Inhabitants of Coleraine, 11 Gray, 157; Langhoff v. Milwaukee & P. D. C. 19 Wisconsin, 497; Macon & Western Railroad v. Da- vis, 13 Georgia, 68; Ren wick v. New York Central Railroad, 36 New York, 132." See also, to same effect, Gillespie v. City, 54 N. Y. 468; City v. Hilde- brand, 61 111. 155. 380 1 Parrott v. Wells, 15 Wal. 524. 2 Addison, Torts, 1870, p. 17, 366, 400 ; Czech v. Gen. St. Nav. Co., L. R. 3 C. P. 120; Templeman v. Hay- don, 12 Com. B. 507. " The same rule," says Earl, C. (in Losee v. Buchanan, 51 N. Y. 476), " applies to injuries to the person. No one in such a case is made liable with- out some fault or negligence on his part, however serious the injury may be which he may accidentally cause; and there can be no reason for hold- ing one liable for accidental injuries to property when he is exempt from lia- bilities for such injuries to the person. It is settled in numerous cases that if one driving along a highway acci- dentally injures another, he is not lia- ble without proof of negligence. Cen- ter V. Finney, 17 Barb. 94; Hammock V. White, 103 Eng. Com. Law, 587. " In Hussey v. Dunlap (Lalor's Sup- plement, 193), the action was for throwing a stone at the plaintiff's daughter and putting out her eye. It did not appear that the injury was in- flicted by design or carelessness, but it did not appear that it was accidental, and the court held that the plaintiff could not recover, laying down the broad rule, that no liability results from the commission of an act arising from inevitable accident, or which or- dinary human care and foresight could not guard against. In Dygert v. Brad- ley (8 Wend. 469), the action was for running one boat against another in the Erie Canal, and the court held, that if the injury was occasioned by BOOK I.] PROVINCES OF COURT AND JURY. [§ 422. § 422. As against bailees^ after proof of loss, burden is on de- fendant. — As will be hereafter seen,^ tins is the prevalent opin- ion in suits against passenger carriers for injuries to passengers.^ And the same rule applies a fortiori to an action of contract against a common carrier for a failure to perform his ordinary undertaking of transportation ; in which case the burden is on him to prove that he failed to perform it from a cause which relieved him from liability.^ Hence the breakage of goods in the hands of a carrier makes out a primd facie case of negligence.* unavoidable accident, no action would lie for it; but if any blame was im- putable to the defendant, he would be liable. In Brown v. Kendall (6 Gush- ing, 292), the defendant having inter- fered to part his dog and the plain- tiff's, which were fighting, in raising his stick for that purpose, accidentally struck the plaintiff and severely in- jured him; it was held that he was not liable. In writing the opinion of the court. Chief Justice Shaw says : ' It is frequently stated by judges that •where 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 dicia are no authority, we think, for holding that damage re- ceived by a direct act of force from another will be sufficient to maintain an action of trespass, whether the act was lawful or unlawful, and neither wilful, intentional, or careless.'. ' We think, as the result of all the authori- ties, that the rule is that the jilaintiir must come prepared with eviilence to show that the inleulinn was unlawful, or that the defendant was in fault ; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be held liable. If, in the prevention of a lawful act, a casualty, piu-cly accidental, arises, no action can be supported for an injury arising therefrom.' So, too, con- trary to what was held in an early English case, if one raise a stick in self-defence to defend himself against an assault, and accidentally bit a third person, he cannot, in my opinion, be made liable for the injury thus, with- out fault or negligence, inllicted." At the trial of an indictment of a railroad corporation, on the ^lass. Gen. Sts. c. 63, § 97, for causing the death of a passenger by gross negligence of their servants, all the f;;cts were agreed, and it appeared upon the statement of them that the i)assenger was killed in a collision of a train with a hand-car, which the track-master suffered to be on the track through a mistake in time, occasioned by his failure to observe correctly the hour indicated by his watch. Held, that the defendants had no ground of ex- ception to the refusal of a reipu-st for a ruling that there was no evidence of negligence, and to the submission of that (juestion to the jury. Com. c. Vt. & Mass. R. R. Co. 108 Mass. 7. 1 Infra, § 661. 2 In suits against warehousemen, see infra, § 593. 8 Lewis V. Smith, 107 :^Iass. 331 ; Adams Ex. Co. v. Stettaners, 01 III. 184. * Kctchum r. !Merrh. Un. Ex. b'2 Mo. 390; Steele v. Townseml, 3 7 Ala. 24 7 ; (Jraham v. Davis, 4 Ohio St. 3G3. When both a railway itself, .lud 381 § 422.] NEGLIGENCE : [book I. Where, however, the plaintifE's case indicates a peril of naviga- the carriaj^es in which the passengers are conveyed, are under the excUisivc control of the company, the very fact of a train's running off the line is prima facie proof of negligence on the part of such company or its officers, and sufficient to throw upon them the burden of explaining how it hap- pened, and of showing that it occurred without any fault or neglect on their part. Carpue v. London & B. R. R. 5 Q. B. 751. See also Cotton v. Wood, 8 Com. B. N. S. 568 ; 29 L. J. C. P. 333; Toomeyv. The London, Brighton 6 South Coast Railway Co. 3 Com. B.N. S. 146; 27 L. T. C. P. 39. In Empire Trans. Co. v. Wamsutta Oil Co. 63 Pa. St. Sharswood, J., said: " But it is said that the onus in this case was on the plaintiffs below, to show that the defect of the coupling arose from the negligence or want of care of the defendants. We think not. When the carriage is proved to have been defective at the time of the injury, and that the defect contributed to the loss, the onus is then necessarily shifted to the carrier. He must rebut it by evidence that the defect arose, not from the insufficiency of the ve- hicle, into which the goods were loaded, but from some subsequent ac- cident beyond his control. This puts the burden where it ought most prop- erly to rest. The carrier ought to be able to show, with ease, by his ser- vants, that the vehicle was inspected before the commencement of the trip, and everything found to be in good order. It would be very difficult for the plaintiffs to prove the contrary, — that it had not been examined, or that it was in bad order when it started. On the trial of this case, in the court below, there was no evidence to show when, or how, the links of the coupling of the cars became jammed, so that 382 they could not be separated in time. It was surmised by one of the wit- senses, that it must have got into that shape by going around a curve. Even admitting this to be so, the important • question remains unanswered, and which if was incumbent on the car- riers to answer, when did this occur ? Had it been shown to have happened during the course of the same trip in which the fire took place, and that it was not known to or discovered by the carriers or their servants in time to be remedied, then, indeed, there might have been a question of negli- gence for the jury. But without any evidence as to this point, there was nothing for them but that which was submitted, whether the coupling of the car was defective, and that defect con- tributed to produce the loss." Although in an action against a bailee for loss or damage to goods by accident, the burden of proof of negli- gence rests upon the plaintiff, yet the nature of the accident itself may afford prima facie proof of negligence. If it is one which, in the ordinary course of events, would not have happened but for the want of proper care on the part of the bailee, it is incumbent upon him to show that he took proper precau- tions ; and his failure to furnish this proof, which, if it existed, would have been in his power, may subject him to % the inference that such precautions were omitted. Russell Man. Co. v. New Y. & N. H. R. R. 50 N. Y. 121. Burden of proof in suit against bailee. — The following extracts from Judge Bennett's edition of Story on Bail- ments, § 410, contains some valuable suggestions on this topic : — " The question may here arise, as in many other cases of bailments, on whom lies the burden of proof of neg- ligence, or of repelling it. Ante, § BOOK I.] PROVINCES OF COURT AND JURY. [§ 422. tion, or casus within the exception of a bill of lading, or a case 212,213,278,339. With certain ex- ceptions, which will hereafter be taken notice of, as to innkeepers and com- mon carriers (5 Term R. 276; Jones on Bailments, 96), it would seem that the burden of proof of negligence is on the bailor ; and proof merely of the loss is not sufficient to put the bailee on his defence. 1 Bell Comra. § 889, 4th edit. ; 1 Bell Comm. p. 454, 5th edit.; 2 Kent Comm. Lect. 40, p. 587 4th edit. See Adams v. Carlisle, 21 Pick. 146 ; Carsley v. White, 21 Pick. 254, 255 ; Brind v. Dale, 8 Carr. & Payne, 207, 212; S. C. 2 Mood. & Rob. 80 ; Foote v. Storrs, 2 Barbour, 326, overruling Piatt v. Hibbard, 7 Cowen, 497. See also Harrington v. Snyder, 3 Barbour, 380 ; Browne v. Johnson, 29 Texas, 43 ; Post, § 454, 529. This has been ruled in a case against a depositary for hire, where the goods bailed were stolen by his servants. Finucane v. Small, 1 Esp. 315. And see Butt v. Great Western Railway Co. 7 Eng. Law & Eq. 448 ; 11 C. B. 140. And also in the case of a horse hired and injured during the term of the bailment, where i)0si- tive proof was required on the part of the owner to sustain his action. Coop- er V. Barton, 3 Camp. 5, note ; New- ton I'. Pope, 1 Cowen, 109 ; 1 Bell Comm. § 389, 4th edit. ; 1 Bell Comm. p. 454, 5th edit. But in a recent case, where the bailee returned the horse in an injured condition, and gave no explanation how the injury occurred, the burden of proof was held to be upon him, to show that there was no negligence. Logan v. Matthews, 6 Barr, 417. And see Bush r. Miller, 13 Barbour, 481 ; Cummins v. Wood, 44 Illinois, 416. " There seem, however, to be some discrepancies in the authorities on this subject, which may properly invite the attention of the learned reader. Piatt V. Hibbard, 7 Cowen, 497, 500, note (a); Harris v. Packwood, 3 Taunt. 264 ; Marsh v. Home, 5 Barn. & Cress. 322 ; Anon. 2 Salk. 654 ; Schmidt v. Blood, 9 Wend. 268; Beardslee v. Richardson, 11 Wend. 25; Tompkins V. Saltmarsh, 14 Serg. & Rawle, 275 ; Beckman v. Shouse, 5 Rawle, 1 79 ; Clark V. Spcnce, 10 Watts, 335; Ante, §212,213,278,339; Post, § 454, 529; 2 Kent Comm. Lect. 40, p. 587, 4th edit. "§ 410 a. Perhaps the discrepancy in the authorities cited in the preced- ing section, and many others, decided since, may be in part reconciled by the fact that the phrase ' burden of proof ' is often used in a vague and inaccurate sense. Properly understood, it seems to be clear that the burden of proof must always l)e upon the plaintiff to make out all the facts upon which his case rests ; and as negligence is the foundation of the action between bailor and bailee, that the duty of proving such negligence is on the former rather than that of disproving it on the latter. That the burden is on the plaintiff in other cases founded on negligence is now quite generally agreed. Tourtel- lot V. Rosebrook, 11 Met. 460; Rob- inson V. Fitchburg & Worcester Rail- road, 7 Gray, 92 ; Tobin v. Murison, 9 Jur. 907 ; 's Moore P. C. 110; Ham- mack V. White, 11 C. B. (N. S.) 588 (1862); Cox i>. Burridge, 13 Ibi.l. 430 (1863); Welfare v. London & Brigh- ton Railway Co. Law Rep. 4 Q. B. 693 (1869). And does not the same rule ap]>ly to actions between l)ail(>r and bailee? Neglii:ence is the gist of such actions, and without it no cause of action exists. "Negligence is no more tu be pre- sumed in such c&^vs than in any other. Tobin V. Murison, 9 Jur. 907. " Still farther, mere proof of loss or 383 § 422.] NEGLIGENCE [book I. otherwise amounting, if proved, to a defence, then the plaintiff is injury to goods while in the hands of a bailee docs not, i^er se, prove negli- gence in him. It may do so, or may not, according to the attending cir- cumstances ; but it is the circum- stances which sliow the negligence, not the mere loss or absence of the property. Evidence, therefore, that the goods are missing, that they are not on hand when called for, does not, in and of itself, establish negli- gence in the bailee. See Gilbart v. Dale, 5 Ad. & El. 543 (1836) ; Mid- land Railway Co. v. Bromley, 33 Eng. Law & Eq. 235 ; 17 C. B. 372 (1855). The bailor must show that fact affinn- al'wely, that the bailee has done some- thing, or omitted to do something, ■which he ought not to have done or omitted. " The question in such cases jirop- erly is, whether the acts of the bailee, either of omission or commission, im- properly led to, or furnished an oppor- tunity for the loss of, or injury to the goods bailed ; the simple naked fact of the loss of the property does not itself, except as explained in the light of the surrounding circumstances, create any presumption of negligence, or even make out a prima facie case against the bailee, calling upon him to explain how the loss occurred, and to show affirmatively on his part that he •was not in fault. Various dicta of judges may be founfl which seem to militate with this view, but most of them may be explained by remem- bering the confusion which exists in the use of the term. The best con- sidered modern authorities, in which the question has been most directly discussed and decided, support the view above expressed. " See Lamb v. Western Railroad, 7 Allen, 95 ; Runyan v. Caldwell, 7 Humph. 134; Brown v. Johnson, 29 384 Texas, 40 ; Cross v. Brown, 41 N. II. 283; Am. Law Review, Jan. 1871. But see Brown v. Waterman, 10 Cush. 117; Lichtenhein V.Boston & Prov. Railroad, 11 Cusli. 70; McDaniels v. Robinson, 26 Vt. 316)." And again, at § 454 : — " In respect to depositaries for hire, there seem to be some discrepancies in the authorities, whether the onus probandi of negligence lies on the jilaintifF, or of exculpation on the de- fendant, in a suit brought for the loss. In England the former rule is main- tained. Finucane v. Small, 1 Esp. 316 ; Harris v. Pack wood, 3 Taunt. 267; Marsh v. Home, 5 Barn. & Cress. 322, 327; Ante, § 278, 339, 410, 410 a; Post, 529. But see Mackenzie V. Cox, 9 Carr. & P. 632, contra. In Cass V. Boston & Lowell Railroad Co. 14 Allen, 448, it was held that in aa action of contract against warehouse- men for a failure to deliver goods upon demand, the burden of proof is on them to show that the goods have been lost without their fault. Chief Justice Bigelow, however, dissented in a very able judgment, holding that in actions on the contract, as well as in actions in tort, the burden of proof is always on the plaintiff to offer some evidence of negligence before he makes out a prima facie case. And this seems to be the better law. See Barron v. Eldridge, 100 Mass. 460; Am. Law Rev. Jan. 1871, In Amer- "■ ica an inclination of opinion has some- times been expressed the other way ; yet perhaps the weight of authority coincides with the English rule. Piatt V. Hibbard, 7 Cowen, 497, 500. See also Beardslee v. Richardson, 11 Wend. 25 ; Schmidt v. Blood, 9 Wend. 268; Ante, § 410; Tompkins V. Saltmarsh, 14 Serg. & Rawle, 275; Ante, § 213, 278, 389 ; Post, § 529 ; BOOK I.] PROVINCES OF COURT AND JURY. [§ 422. McCarthy v. Wolfe, 40 Miss. 520; Beckman v. Shouse, 5 Rawle, 179; Clark V. Spence, 10 Watts, 335." In Russell Man. Co. v. New Haven Steamb. Co. 50 N. Y. 121, the ques- tion of the burden of proof, in actions against warehousemen, is thus satis- factorily discussed by Rapallo, J. : . . . . " The wharf upon which the fire occurred and the goods were placed, appears to have been in the occupation of the defendant; a large quantity of goods besides the plain- tiff's were upon it at the time of the fire, and were destroyed. It was about three hundred feet long, and provided with a gate through which passengers, by the defendant's boats, were ad- mitted. The defendant's receiving clerk was there until about twelve o'clock on the night in question. One of the defendant's boats lefl the wharf with passengers at about that time. A police officer remained there until a little after midnight, when he left the wharf in its usual condition, with freight piled upon it in proper order and a private watchman in charge with some colored men. The fire oc- curred at some time between midnight and three o'clock, A. M., but at what precise time does not appear. It may be inferred from the evidence and ad- missions on the trial that the fire originated on the wharf. Two wit- nesses testified that they had fre- quently been on the dock, but had never seen any apparatus or means for extinguishing fire there. Neither the private watchman nor the colored men were produced as witnesses, nor did it appear that the watchman was at his post, or that any person was upon the wharf when the fire broke out. " We think that enough was shown to call upon the defendant to explain the circumstances attending the de- struction of the property; and that, 25 in the absence of any such explana- tion, the jury would have been au- thorized to infer that proper precau- tions for its safety had not been taken. Whether due caution required that the wharf should be furnished with the means of extinguishing fire, or that a watchman should be kept there during the night, were questions for the jury, dependent upon the circum- stances of danger which may have sur- rounded the premises. The plaintifFs evidence of the absence of the means of extinguishing fire was not of the most satisfactory character ; but the defendant, although possessing the best means of proof upon the subject, did not controvert it; while the fact of the fire originating upon the de- fendant's premises, in connection with the failure of the defendant to offer any explanation of its origin, or even to produce any of the persons said to have been left in charge, or to show that they performed their duty, or that any effort was made to take the goods out of the reach of the fire, were circumstances from which the jury might have drawn inferences unfavor- able to the defendant on the question of negligence. The nature of an acci- dent may itself afford prima facie proof of negligence (Curtis r. Roch. & Syra. R. R. Co. 18 N. Y. 534, 544; Story on Bailments, § 338; 5 Exch. 787 ; 3 Hurlst. & Coltm. 596; 13 Pe- ters, 181; 5 Ad. & El. 74 7; 11 Pick. 106; 2 Camp. 79); and we think, as the case stood, the judge erred in not submitting the question of negligence to the jury. " These views do not conflict with the case of Lamb v. The Camden & Amboy R. R. Co. (46 N. Y. 271), cited on the part of the respondent ; although the burden of pro