chapter 111
, section 267, for the
death of a passenger on a street railway.[78]
The material portions of the statute are as follows:—
“If a corporation which operates a railroad or a street railway, by reason of its negligence or by reason of the unfitness or gross negligence of its agents or servants, while engaged in its business,[79] causes the death of a passenger, or of a person who is in the exercise of due care and who is not a passenger or in the employ of such corporation, it shall be punished by a fine of not less than five hundred nor more than five thousand dollars, which shall be recovered by an indictment,” and shall be paid to the executor or administrator, to the use of the widow and children or the next of kin. “Such corporation shall also be liable in damages in the sum of not less than five hundred nor more than five thousand dollars, which shall be assessed with reference to the degree of culpability of the corporation or of its servants or agents, and shall be recovered in an action of tort ... by the executor or administrator of the deceased for the use of the persons hereinbefore specified in the case of an indictment.... But no executor or administrator shall, for the same cause, avail himself of more than one of the remedies given by the provisions of this section.”
At the trial the plaintiff requested the following rulings:—
“6. When the duty of exercising the highest degree of care is incumbent upon the defendant, any failure upon the part of its servants to exercise that degree of care is gross negligence.
“7. The term ‘gross’ in the allegation gross negligence, when used with reference to the degree of care required and not fulfilled, is merely an expletive, when the degree of care required is the very highest.
“8. There are no degrees of negligence.”
The plaintiff excepted to the refusal of the judge to give the rulings requested, and to such parts of the charge as were in conflict with them. The defendant had a verdict, and the case is here on these exceptions.
LORING, J.... The judge was right in refusing to give the sixth ruling asked for. A failure to exercise the highest degree of care is slight negligence.
3. The seventh ruling requested was wrong. The term “gross negligence” in a case where the degree of care due is the highest degree of care means that there has been a gross failure to exercise that degree of care.[80]
4. There are degrees of care in cases under R. L. c. 111, § 267, by force of that act.[81]
_Exceptions overruled._
CLEVELAND ROLLING MILL CO. _v._ CORRIGAN SUPREME COURT, OHIO, FEBRUARY 26, 1889. _Reported in 46 Ohio State Reports, 283._
Error to Circuit Court of Cuyahoga County.
The plaintiff below, John Corrigan, an infant under the age of fourteen, by his guardian, sued the Rolling Mill Company for damages suffered while in the defendants’ employ, and which he alleged were caused by their negligence.
The answer of the defendants alleged, among other defences, that the injury occurred solely through the plaintiff’s fault.
As to this ground of defence, the Court instructed the jury in part as follows:—
It was the duty of the plaintiff to use ordinary care and prudence; just such care and prudence as a boy of his age, of ordinary care and prudence, would use under like or similar circumstances. You should take into consideration his age, the judgment and knowledge he possessed.
_Verdict and judgment for plaintiff._
The Company filed its petition in error.[82]
WILLIAMS, J. The only questions presented in this case are those arising upon the special instructions given by the Court in response to the request of the jury. These instructions, the plaintiff in error contends, are erroneous in their entirety and in detail.
1. First, it is claimed that the Court erred in the statement of the plaintiff’s duty, in the opening proposition of the charge, wherein the jury were instructed that “it was the duty of the plaintiff to use ordinary care,” which the Court defined to be “just such care as boys of that age, of ordinary care and prudence, would use under like circumstances,” and that the jury “should take into consideration the age of the plaintiff, and the judgment and knowledge he possessed.” We have found no decision of this Court upon the subject of the contributory negligence of infants, or the measure of care required of them. Elsewhere the decisions are conflicting. Each of three different rules on the subject has found judicial sanction. One rule requires of children the same standard of care, judgment, and discretion, in anticipating and avoiding injury, as adults are bound to exercise.[83] Another wholly exempts small children from the doctrine of contributory negligence. Between these extremes a third and more reasonable rule has grown into favor, and is now supported by the great weight of authority, which is, that a child is held to no greater care than is usually possessed by children of the same age. Authors and judges, however, do not always employ the same language in giving expression to the rule. In Beach on Contributory Negligence, sec. 46, it is thus expressed: “An infant plaintiff who, on the one hand, is not so young as to escape entirely all legal accountability, and on the other hand is not so mature as to be held to the responsibility of an adult is, of course, in cases involving the question of negligence, to be held responsible for ordinary care, and ordinary care must mean, in this connection, that degree of care and prudence which may reasonably be expected of a child.” The decisions enforcing this rule, that children are to be held responsible only for such degree of care and prudence as may reasonably be expected of them, taking due account of their age and the particular circumstances, are very numerous. “It is well settled,” says Mr. Justice Hunt in Railroad Company _v._ Stout, 17 Wall. 657, “that the conduct of an infant of tender years is not to be judged by the same rule which governs that of an adult.... The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case.” In Shearman & Redfield on Negligence, sec. 73, it is said to be “now settled by the overwhelming weight of authority that a child is held, as far as he is personally concerned, only to the exercise of such care and discretion as is reasonably to be expected from children of his own age.” Another author says, “A child is only bound to exercise such a degree of care as children of his particular age may be presumed capable of exercising.” Whittaker’s Smith on Neg., 411.
This rule appears to rest upon sound reason as well as authority. To constitute contributory negligence in any case there must be a want of ordinary care and a proximate connection between such want of care and the injury complained of; and ordinary care is that degree of care which persons of ordinary care and prudence are accustomed to use under similar circumstances. Children constitute a class of persons of less discretion and judgment than adults, of which all reasonably informed men are aware. Hence ordinarily prudent men reasonably expect that children will exercise only the care and prudence of children, and no greater degree of care should be required of them than is usual under the circumstances among careful and prudent persons of the class to which they belong. We think it a sound rule, therefore, that in the application of the doctrine of contributory negligence to children, in
## actions by them or in their behalf for injuries occasioned by the
negligence of others, their conduct should not be judged by the same rule which governs that of adults, and while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under similar circumstances.
That portion of the charge of the Court under discussion is in substantial conformity to this conclusion. The care and prudence which a boy of the plaintiff’s age of ordinary care and prudence “would use under like and similar circumstances,” as expressed in the charge, is such care as “is reasonably to be expected from a boy of his age,” or “which boys of his age usually exercise,” as the books express it. No different effect is given to the charge of which the plaintiff in error can complain, by the direction to the jury to take into consideration the age of the boy “and the judgment and knowledge he possessed.” This did not diminish the degree of care required by the previous portion of the instruction.
_Judgment affirmed._[84]
STONE _v._ DRY DOCK R. CO. COURT OF APPEALS, NEW YORK, JUNE 4, 1889. _Reported in 115 New York Reports, 104._
Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made October 26, 1887, which affirmed a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on trial.
This was an action to recover damages for the alleged negligence in causing the death of plaintiff’s intestate, a child of seven years and three or four months old.
The facts, so far as material, are stated in the opinion.[85]
ANDREWS, J. The nonsuit was placed on the ground that an infant seven years of age was _sui juris_, and that the act of the child in crossing the street in front of the approaching car was negligence on her part, which contributed to her death, and barred a recovery. We think the case should have been submitted to the jury.
The negligence of the driver of the car is conceded. His conduct in driving rapidly along Canal Street at its intersection with Orchard Street, without looking ahead, but with his eyes turned to the inside of the car, was grossly negligent. Mangam _v._ Brooklyn R. R. Co., 38 N. Y. 455; Railroad Co. _v._ Gladmon, 15 Wall. 401. It cannot be asserted as a proposition of law that a child just passed seven years of age is _sui juris_, so as to be chargeable with negligence. The law does not define when a child becomes _sui juris_. Kunz _v._ City of Troy, 104 N. Y. 344. Infants under seven years of age are deemed incapable of committing crime, and by the common law such incapacity presumptively continues until the age of fourteen. An infant between those ages was regarded as within the age of possible discretion, but on a criminal charge against an infant between those years the burden was upon the prosecutor to show that the defendant had intelligence and maturity of judgment sufficient to render him capable of harboring a criminal intent. 1 Arch. 11. The Penal Code preserves the rule of the common law except that it fixes the age of twelve instead of fourteen as the time when the presumption of incapacity ceases. Penal Code, §§ 18, 19.
In administering civil remedies the law does not fix any arbitrary period when an infant is deemed capable of exercising judgment and discretion. It has been said in one case that an infant three or four years of age could not be regarded as _sui juris_, and the same was said in another case of an infant five years of age. Mangam _v._ Brooklyn R. R., _supra_; Fallon _v._ Central Park, N. & E. R. R. R. Co., 64 N. Y. 13. On the other hand, it was said in Cosgrove _v._ Ogden, 49 N. Y. 255, that a lad six years of age could not be assumed to be incapable of protecting himself from danger in streets or roads, and in another case that a boy of eleven years of age was competent to be trusted in the streets of a city. McMahon _v._ Mayor, &c., 33 N. Y. 642. From the nature of the case it is impossible to prescribe a fixed period when a child becomes _sui juris_. Some children reach the point earlier than others. It depends upon many things, such as natural capacity, physical conditions, training, habits of life, and surroundings. These and other circumstances may enter into the question. It becomes, therefore, a question of fact for the jury where the inquiry is material unless the child is of so very tender years that the Court can safely decide the fact. The trial Court misapprehended the case of Wendell _v._ New York Central Railroad Company, 91 N. Y. 420, in supposing that it decided, as a proposition of law, that a child of seven years was capable of exercising judgment so as to be chargeable with contributory negligence. It was assumed in that case, both on the trial and on appeal, that the child whose conduct was in question was capable of understanding, and did understand the peril of the situation, and the evidence placed it beyond doubt that he recklessly encountered the danger which resulted in his death. The boy was familiar with the crossing, and, eluding the flagman who tried to bar his way, attempted to run across the track in front of an approaching train in plain sight, and unfortunately slipped and fell, and was run over and killed. It appeared that he was a bright,
## active boy, accustomed to go to school and on errands alone, and
sometimes was intrusted with the duty of driving a horse and wagon, and that on previous occasions he had been stopped by the flagman while attempting to cross the track in front of an approaching train, and had been warned of the danger. The Court held, upon this state of facts, that the boy was guilty of culpable negligence. But the case does not decide, as matter of law, that all children of the age of seven years are _sui juris_.
We are inclined to the opinion that in an action for an injury to a child of tender years, based on negligence, who may or may not have been _sui juris_ when the injury happened, and the fact is material as bearing upon the question of contributory negligence, the burden is upon the plaintiff to give some evidence that the party injured was not capable, as matter of fact, of exercising judgment and discretion. This rule would seem to be consistent with the principle now well settled in this State, that in an action for a personal injury, based on negligence, freedom from contributory negligence on the part of the party injured is an element of the cause of action. In the present case the only fact before the jury bearing upon the capacity of the child whose death was in question was that she was a girl seven years and three months old. This, we think, did not alone justify an inference that the child was incapable of exercising any degree of care. But, assuming that the child was chargeable with the exercise of some degree of care, we think it should have been left to the jury to determine whether she acted with that degree of prudence which might reasonably be expected, under the circumstances, of a child of her years. This measure of care is all that the law exacts in such a case. Thurber _v._ Harlem, B. M. & F. R. R. Co., 60 N. Y. 335.[86]
_Judgment reversed._
ILLINOIS IRON AND METAL COMPANY _v._ WEBER SUPREME COURT, ILLINOIS, APRIL 16, 1902. _Reported in 196 Illinois Reports, 526._
Appeal by original defendants from the decision of the Appellate Court for the First District; 89 Ill. App. 368.
Plaintiff was a newsboy, between eleven and twelve years old, and his stand was at Dearborn and Monroe streets in the city of Chicago. He was going from his home, about four miles distant, to his place of business. By permission of the driver, he got on a wagon loaded with brick. He stood up on the rear of the wagon behind the box, and held on to the hind end-gate of the wagon. The wagon was one of a procession of loaded teams in a street-car track. The next wagon behind was owned by defendant. The end of the pole of defendant’s wagon struck the plaintiff’s leg, inflicting a serious wound. Plaintiff had been in the paper business since he was nine years old, and had been in the habit of riding down town on wagons.
Under instructions, the substance of which is stated in the opinion, the jury found a verdict for plaintiff.[87]
CARTWRIGHT, J.... The first two instructions each directed the jury to find the defendant guilty, provided they should believe, from the evidence, the existence of certain facts. One of the essential facts which the law required to be found was that the plaintiff was in the exercise of ordinary care for his own safety, and each of those instructions informed the jury that the fact was proved if he was in the exercise of ordinary care for a boy of his age. They directed the jury to return a verdict for the plaintiff if they found he was in the exercise of ordinary care for a boy of his age and the defendant was negligent and the injury resulted. That was not a correct rule of law, since the question of care was not to be determined alone by the plaintiff’s age, but also from his intelligence, experience, and ability to understand and comprehend dangers and care for himself. The case was one in which the defendant was entitled to correct instructions upon that question. It was a question whether plaintiff was not guilty of negligence in riding where he did, in a procession of teams, outside of the box, behind the end-gate of the wagon. The position was a dangerous one, not provided or used for passengers or intended for such use. Plaintiff had a right to ride on the wagon with the driver’s consent, but it was his duty to use reasonable care for his own safety. There was a string of heavily loaded teams in the car tracks, where it was difficult, if not impossible, to turn out, and the difficulty and danger in stopping when one of a procession stops is matter of common knowledge. Cases cited as to the liability of common carriers of passengers where a car is full and a passenger rides upon the platform have no bearing on this question. Passengers are accustomed to be upon platforms and are sometimes compelled to ride there, and different rules are applied to a common carrier from those governing parties not in that relation. There was no necessity whatever for the plaintiff assuming the position that he did. These facts were not controverted or in dispute, but are gathered from his own testimony. If the damage to the plaintiff was caused by his own negligence in assuming such a position, he could not recover. In determining that question his age was to be taken into account, but it could not be said, as a matter of law, that he was too young to exercise any care for his personal safety or that he was incapable of negligence. Unquestionably, he was capable of exercising some degree of judgment and discretion and some degree of care for his own safety. He had lived in the city and had been engaged in business, and was accustomed to ride on wagons. Judge Thompson, in his Commentaries on Law of Negligence (vol. I, sect. 309), says: “Two lads of equal age and natural capacity, one of them raised in the country and the other in the city, might approach a given danger, and the one would be perfectly competent to care for himself while the other would be helpless in the face of it. Therefore, the capacity, the intelligence, the knowledge, the experience, and the discretion of the child are always evidentiary circumstances,—circumstances with reference to which each party has the right to introduce evidence, which evidence is to be considered by the jury.” The rule established by our own decisions is, that age is not the only element to be considered, but that intelligence, capacity, and experience are also to be taken into account. Weick _v._ Lander, 75 Ill. 93; City of Chicago _v._ Keefe, 114 Id. 222; Illinois Central Railroad Company _v._ Slater, 129 Id. 91.
* * * * *
_Reversed and remanded._[88]
BULLOCK _v._ BABCOCK SUPREME COURT OF JUDICATURE, NEW YORK, OCTOBER, 1829. _Reported in 3 Wendell, 391._
This was an action of trespass, assault, and battery.
In 1816, the defendant, then being about twelve years of age, shooting an arrow from a bow, struck the plaintiff and put out one of his eyes, the plaintiff being then between nine and ten years of age. The plaintiff and defendant were schoolmates. The boys attending the school were assembled near the school-house. One of them had a bow and arrow, with which he and the defendant had been shooting at a mark. Some remark was made by the plaintiff, when the defendant said, “I will shoot you,” and took the bow and arrow from another boy who then held it. The plaintiff ran into the school-house and hid behind a fire-board standing before the fire-place in the school-room. The defendant followed to the door of the school-room, and saying, “See me shoot that basket,” discharged the arrow. At that moment the plaintiff raised his head above the fire-board, and the arrow struck him. There was a basket standing on a desk in the direction that the arrow was aimed. When the arrow was shot, there were a number of boys in the school-room. There had been no quarrel between the boys. The plaintiff, however, on entering the school-house was frightened, and said he was afraid he would be shot. The plaintiff suffered great pain for two months, became blind of one eye, and for five years was disabled from attending school in consequence of the weakness of sight of the other eye. His mother became a widow; and when the plaintiff was able to attend school, her poverty prevented his receiving an ordinary education. This suit was commenced in 1827, within a year after the plaintiff attained his age.
The judge charged the jury that the shooting the arrow in the school-room where there were a number of boys assembled was an unlawful act; that it appeared to him to have been, at the least, grossly negligent and unjustifiable; and that, if the jury thought so, they ought to find a verdict for the plaintiff, with damages. The defendant excepted. The jury found for the plaintiff, with $180 damages, and a motion was now made to set aside the verdict.
BY THE COURT, MARCY, J. It is not, I apprehend, necessary for us to say whether the judge erred or not in his remark to the jury that, under the circumstances of the case, the act of the defendant in shooting the arrow in the school-room, where there were a number of scholars, was not lawful; for, if the act in itself was lawful, and there was not a proper care to guard against consequences injurious to others, the actor must be held responsible for such consequences.
In ordinary cases, if the injury is not the effect of an unavoidable accident, the person by whom it is inflicted is liable to respond in damages to the sufferer. Where, in shooting at butts, the archer’s arrow glanced and struck another, it was holden to be a trespass. Year-Book, 21 H. VII. fol. 28. So where a number of persons were lawfully exercising themselves at arms, one, whose gun accidentally went off, was held liable in trespass for the injury occasioned by the accident. Weaver _v._ Ward. Where, in a dark night, the defendant got on the wrong side of the road, and an injury ensued to the person of the plaintiff, trespass for the damage was sustained. Leame _v._ Bray, 3 East, 593. It is decided in the case of Wakeman _v._ Robinson, if the accident happen entirely without the fault of the defendant, or any blame being imputable to him, an action will not lie. In that case, the blame imputable to the defendant was, that, his horse being young and spirited, he used him without a curb rein; that in his alarm he probably pulled the wrong rein; and that he ought to have continued on in a straight course. The blame fairly imputed to the defendant, it will be perceived, must have been slight indeed, as it certainly was in the case of the injury done by the glancing of the arrow when shooting at a mark (a lawful act), and by the accidental discharge of the musket at a training; and yet, in each of these cases, an action for the injury was maintained. Unless a rule is to be applied to this case different from that applicable to a transaction between adults, the proof was most abundant to charge the defendant with the consequences of the injury. Infants, in the same manner as adults, are liable for trespass, slander, assault, &c.[89] Bing. on Infancy, 110; 8 T. R. 335; 16 Mass. Rep. 389; 2 Inst. 328. Where infants are the actors, that might probably be considered an unavoidable accident which would not be so considered where the actors are adults; but such a distinction, if it exists, does not apply to this case. The liability to answer in damages for trespass does not depend upon the mind or capacity of the actors; for idiots and lunatics, as we see by the case reported in Hobart, are responsible in the action of trespass for injuries inflicted by them. 1 Chit. Pl. 66.
_Motion for a new trial denied._[90]
SECTION IV PROOF OF NEGLIGENCE[91]
METROPOLITAN RAILWAY COMPANY _v._ JACKSON IN THE HOUSE OF LORDS, DECEMBER 13, 1877. _Reported in 3 Appeal Cases, 193._
THE LORD CHANCELLOR (Lord Cairns):[92]—
My Lords, in this case an action was brought by the respondent against the Metropolitan Railway Company for negligence in not carrying the respondent safely as a passenger on the railway, and for injuring his thumb by the act of one of the appellants’ servants in suddenly and violently closing the door of the railway carriage.
The question is, Was there at the trial any evidence of this negligence which ought to have been left to the jury? The Court of Common Pleas, consisting of Lord Coleridge, Mr. Justice Brett, and Mr. Justice Grove, were of opinion that there was such evidence. The Court of Appeal was equally divided; the Lord Chief Justice and Lord Justice of Appeal Amphlett holding that there was evidence, the Lord Chief Baron and Lord Justice of Appeal Bramwell holding that there was not.
The facts of the case are very short. The respondent in the evening of the 18th of July, 1872, took a third-class ticket from Moorgate Street to Westbourne Park, and got into a third-class compartment; the compartment was gradually filled up, and when it left King’s Cross all the seats were occupied. At Gower Street Station three persons got in and were obliged to stand up. There was no evidence to show that the attention of the company’s servants was drawn to the fact of an extra number being in the compartment; but there was evidence that the respondent remonstrated at their getting in with the persons so getting in, and a witness who travelled in the same compartment stated that he did not see a guard or porter at Gower Street.
At Portland Road, the next station, the three extra passengers still remained standing up in the compartment. The door of the compartment was opened and then shut; but there was no evidence to show by whom either act was done. Just as the train was starting from Portland Road there was a rush, and the door of the compartment was opened a second time by persons trying to get in. The respondent, who had up to this time kept his seat, partly rose and held up his hand to prevent any more passengers coming in. After the train had moved, a porter pushed away the people who were trying to get in, and slammed the door to, just as the train was entering the tunnel. At that very moment the respondent, by the motion of the train, fell forward and put his hand upon one of the hinges of the carriage door to save himself, and at that moment, by the door being slammed to, the respondent’s thumb was caught and injured.
The case as to negligence having been left to the jury, the jury found a verdict for the respondent with £50 damages. There was not, at your lordships’ bar, any serious controversy as to the principles applicable to a case of this description. The judge has a certain duty to discharge, and the jurors have another and a different duty. The judge has to say whether any facts have been established by evidence from which negligence _may be_ reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence _ought to be_ inferred. It is, in my opinion, of the greatest importance in the administration of justice that these separate functions should be maintained, and should be maintained distinct. It would be a serious inroad on the province of the jury, if, in a case where there are facts from which negligence may reasonably be inferred, the judge were to withdraw the case from the jury upon the ground that, in his opinion, negligence ought not to be inferred; and it would, on the other hand, place in the hands of the jurors a power which might be exercised in the most arbitrary manner, if they were at liberty to hold that negligence might be inferred from any state of facts whatever. To take the instance of actions against railway companies: a company might be unpopular, unpunctual, and irregular in its service; badly equipped as to its staff; unaccommodating to the public; notorious, perhaps for accidents occurring on the line; and when an action was brought for the consequences of an accident, jurors, if left to themselves, might, upon evidence of general carelessness, find a verdict against the company in a case where the company was really blameless. It may be said that this would be set right by an application to the court in banc, on the ground that the verdict was against evidence; but it is to be observed that such an application, even if successful, would only result in a new trial; and on a second trial, and even on subsequent trials, the same thing might happen again.
In the present case I am bound to say that I do not find any evidence from which, in my opinion, negligence could reasonably be inferred. The negligence must in some way connect itself, or be connected by evidence, with the accident. It must be, if I might invent an expression founded upon a phrase in the civil law, _incuria dans locum injuriae_. In the present case there was no doubt negligence in the company’s servants, in allowing more passengers than the proper number to get in at the Gower Street Station; and it may also have been negligence if they saw these supernumerary passengers, or if they ought to have seen them, at Portland Road, not to have then removed them; but there is nothing, in my opinion, in this negligence which connects itself with the accident that took place. If, when the train was leaving Portland Road, the overcrowding had any effect on the movements of the respondent; if it had any effect on the particular portion of the carriage where he was sitting, if it made him less a master of his actions when he stood up or when he fell forward, this ought to have been made matter of evidence; but no evidence of the kind was given.
As regards what took place at Portland Road, I am equally unable to see any evidence of negligence connected with the accident, or indeed of any negligence whatever. The officials cannot, in my opinion, be held bound to prevent intending passengers on the platform opening a carriage door with a view of looking or getting into the carriage. They are bound to have a staff which would be able to prevent such persons getting in where the carriage was already full, and this staff they had, for the case finds that the porter pushed away the persons who were attempting to get in. So also with regard to shutting the door; these persons had opened the door, and thereupon it was not only proper but necessary that the door should be shut by the porter; and, as the train was on the point of passing into a tunnel, he could not shut it otherwise than quickly or in this sense violently....
LORD BLACKBURN:—
My Lords, I also am of opinion that in this case the judgment should be reversed, and a nonsuit entered. On a trial by jury it is, I conceive, undoubted that the facts are for the jury, and the law for the judge. It is not, however, in many cases practicable completely to sever the law from the facts.
But I think it has always been considered a question of law to be determined by the judge, subject, of course, to review whether there is evidence which, if it is believed, and the counter-evidence, if any, not believed, would establish the facts in controversy. It is for the jury to say whether and how far the evidence is to be believed. And if the facts, as to which evidence is given, are such that from them a farther inference of fact may legitimately be drawn, it is for the jury to say whether that inference is to be drawn or not. But it is for the judge to determine, subject to review, as a matter of law whether from those facts that farther inference may legitimately be drawn.
My Lords, in delivering the considered judgment of the Exchequer Chamber in Ryder _v._ Wombwell, Law Rep. 4 Ex. 32, 38, Willes, J., says: “Such a question is one of mixed law and fact; in so far as it is a question of fact, it must be determined by a jury, subject no doubt to the control of the court, who may set aside the verdict, and submit the question to the decision of another jury; but there is in every case a preliminary question, which is one of law, viz., whether there is any evidence on which the jury could properly find the verdict for the party on whom the _onus_ of proof lies. If there is not, the judge ought to withdraw the question from the jury, and direct a nonsuit if the _onus_ is on the plaintiff, or direct a verdict for the plaintiff if the _onus_ is on the defendant. It was formerly considered necessary in all cases to leave the question to the jury, if there was any evidence, even a scintilla, in support of the case; but it is now settled that the question for the judge (subject, of course, to review), is, as is stated by Maule, J., in Jewell _v._ Parr, 13 C. B. 909, 916, ‘not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established.’”
He afterwards observes, Law Rep. 4 Ex. 42, very truly in my opinion, “There is no doubt a possibility in all cases where the judges have to determine whether there is evidence on which the jury may reasonably find a fact, that the judges may differ in opinion, and it is possible that the majority may be wrong. Indeed, whenever a decision of the court below on such a point is reversed, the majority must have been so either in the court above or the court below. This is an infirmity which must affect all tribunals.”
I quite agree that this is so, and it is an evil. But I think it a far slighter evil than it would be to leave in the hands of the jury a power which might be exercised in the most arbitrary manner....
[The concurring opinions of LORD O’HAGAN and LORD GORDON are omitted.]
_Judgment given for the plaintiff in the court below reversed, and a nonsuit to be entered._[93]
KEARNEY _v._ LONDON, BRIGHTON & SOUTH COAST R. CO. IN THE QUEEN’S BENCH, JUNE 15, 1870. _Reported in Law Reports, 5 Queen’s Bench, 411._
Declaration, that the defendants were possessed of a bridge over a certain public highway, and it became their duty to maintain and keep in repair the bridge, so that it should not be injurious to any person passing under it; yet the defendants so negligently maintained the bridge, that while the plaintiff was lawfully passing under the bridge a portion of the materials of the bridge fell down and injured the plaintiff.
Plea: Not guilty. Issue joined.
At the trial before Hannen, J., at the sittings in Middlesex after Michaelmas Term, 1869, it appeared, according to the plaintiff’s evidence, that the plaintiff, on the 20th of January, 1869, was passing along the Blue Anchor Road, Bermondsey, under the railway bridge of the defendants, when a brick fell and injured him on the shoulder. A train had passed just previously, but whether it was a train of the defendants, or of another company (whose trains also pass over the bridge), did not appear. The bridge had been built three years, and is an iron girder bridge resting on iron piers, on one side, and on a perpendicular brick wall with pilasters, on the other, and the brick fell from the top of one of the pilasters, where one of the girders rested on the pilaster.
The defendants called no witnesses,[94] but rested their defence on there being no evidence of negligence in the defendants; and also on the ground that the injury to the plaintiff’s shoulder was not really caused by the falling of the brick.
As to the evidence of negligence, the learned judge told the jury that if they thought the bare circumstance of a brick falling out was not evidence of negligence, they would find for the defendants; if they thought otherwise, for the plaintiff; and the court would determine whether there was legal evidence of negligence or not, as to which he should reserve leave to the defendants to move.
The jury found a verdict for the plaintiff for 25_l._
A rule was obtained to enter a nonsuit, on the ground that there was no evidence of negligence to leave to the jury.[95]
COCKBURN, C. J. As we have had the whole matter carefully brought before us, with the cases bearing upon the subject, I think we should gain nothing by taking further time to consider it; and, therefore, although I regret to say we are not unanimous upon the point, I think it is better to dispose of the case at once.
My own opinion is, that this is a case to which the principle _res ipsa loquitur_ is applicable, though it is certainly as weak a case as can well be conceived in which that maxim could be taken to apply. But I think the maxim is applicable; and my reason for saying so is this. The company who have constructed this bridge were bound to construct it in a proper manner, and to use all reasonable care and diligence in keeping it in such a state of repair that no damage from its defective condition should occur to those who passed under it, the public having a right to pass under it. Now we have the fact that a brick falls out of this structure, and injures the plaintiff. The proximate cause appears to have been the looseness of the brick, and the vibration of a train passing over the bridge, acting upon the defective condition of the brick. It is clear, therefore, that the structure in reference to this brick was out of repair. It is clear that it was incumbent on the defendants to use reasonable care and diligence, and I think the brick being loose affords, prima facie, a presumption that they had not used reasonable care and diligence. It is true that it is possible that, from changes in the temperature, a brick might get into the condition in which this brickwork appears to have been from causes operating so speedily as to prevent the possibility of any diligence and care applied to such a purpose intervening in due time, so as to prevent an accident. But inasmuch as our experience of these things is, that bricks do not fall out when brickwork is kept in a proper state of repair, I think where an accident of this sort happens, the presumption is that it is not the frost of a single night, or of many nights, that would cause such a change in the state of this brickwork as that a brick would fall out in this way; and it must be presumed that there was not that inspection and that care on the part of the defendants which it was their duty to apply. On the other hand, I admit most readily that a very little evidence would have sufficed to rebut the presumption which arises from the manifestly defective state of this brickwork. It might have been shown that many causes, over which the defendants had no control, might cause this defect in so short a time as that it could not be reasonably expected that they should have inspected it in the interval. They might, if they were able, have shown that they had inspected the bridge continually, or that such a state of things could not be anticipated, and had never been heard of or known before. Anything which tended to rebut the presumption arising from an accident caused by the defective condition of the brickwork, which it was their duty to keep in a proper condition of repair, even if such evidence were but slight, might have sufficed; but the defendants chose to leave it on the naked state of facts proved by the plaintiff. Upon that naked state of facts it is not unimportant to see what might have been the cause of the defective condition of this brickwork. We have the fact, the datum, that the brickwork was in a defective condition, and we have it admitted that it was the defendants’ duty to use reasonable care and diligence to keep it in a proper condition. Where it is the duty of persons to do their best to keep premises, or a structure, of whatever kind it may be, in a proper condition, and we find it out of condition, and an accident happens therefrom, it is incumbent upon them to show that they used that reasonable care and diligence which they were bound to use, and the absence of which it seems to me may fairly be presumed from the fact that there was the defect from which the accident has arisen. Therefore, there was some evidence to go to the jury, however slight it may have been, of this accident having arisen from the negligence of the defendants; and it was incumbent on the defendants to give evidence rebutting the inference arising from the undisputed facts; that they have not done, and I therefore think this rule must be discharged.
[LUSH, J., delivered a concurring opinion. HANNEN, J., delivered a dissenting opinion.]
_Rule discharged._[96]
MARCEAU _v._ RUTLAND R. CO. COURT OF APPEALS, NEW YORK, APRIL 28, 1914. _Reported in 211 New York Reports, 203._
WERNER, J. The question presented by this appeal is whether the case is one in which it is proper to apply the maxim _res ipsa loquitur_....[97]
The phrase _res ipsa loquitur_, literally translated, means that the thing or affair speaks for itself. It is merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify the conclusion that the accident was caused by negligence. The inference of negligence is deducible, not from the mere happening of the accident, but from the attendant circumstances. “It is not that, in any case, negligence can be assumed from the mere fact of an accident and an injury; but in these cases the surrounding circumstances which are necessarily brought into view by showing how the accident occurred, contain, without further proof, sufficient evidence of the defendant’s duty and of his neglect to perform it. The fact of the casualty and the attendant circumstances may themselves furnish all the proof of negligence that the injured person is able to offer, or that it is necessary to offer.” Shearman & Redfield on Negligence, § 59. This section was quoted with approval by Judge Cullen in writing for this court in Griffen _v._ Manice, 166 N. Y. 188, 193, and in that connection he expressed the view that “the application of the principle depends on the circumstances and character of the occurrence, and not on the relation between the parties, except indirectly so far as that relation defines the measure of duty imposed on the defendant.” He quoted also from the opinion of Judge Danforth in Breen _v._ N. Y. C. & H. R. R. Co., 109 N. Y. 297, 300, in which the author said “there must be reasonable evidence of negligence, but when the thing causing the injury is shown to be under the control of a defendant, and the accident is such as, in the ordinary course of business, does not happen if reasonable care is used, it does, in the absence of explanation by the defendant, afford sufficient evidence that the accident arose from want of care on its part.” In the Griffen case Judge Cullen followed this quotation from the Breen case, with the pertinent observation that he could see no reason “why the rule thus declared is not applicable to all cases or why the probative force of the evidence depends on the relation of the parties. Of course, the relation of the parties may determine the fact to be proved, whether it be want of the highest care or only want of ordinary care, and, doubtless, circumstantial evidence, like direct evidence, may be insufficient as a matter of law to establish the want of ordinary care, though sufficient to prove absence of the highest degree of diligence. But the question in every case is the same whether the circumstances surrounding the occurrence are such as to justify the jury in inferring the fact in issue.” Thus we see that this court is definitely committed to the view that the application of the maxim _res ipsa loquitur_ depends, not upon the relation of the injured person to the person or party who is charged with causing the injury, but upon the explanatory circumstances which surround the happening of the accident. The rule thus expressed has been recognized in the recent cases of Robinson _v._ Consolidated Gas Co., 194 N. Y. 37, 41, and Hardie _v._ Boland Co., 205 N. Y. 336, 341, and has been followed in many cases in the several Appellate Divisions.[98]
While it is, therefore, the settled law that the maxim is applicable to any case where the facts warrant its application, it is apparent that the employee who invokes it against his employer encounters difficulties that do not hamper the wayfarer in a public place or the passenger in a common carrier’s conveyance. The man who was lawfully upon the highway need go no farther in the first instance than to prove that he was hit by a falling wall (Mullen _v._ St. John, 57 N. Y. 567) or by a flying missile (Wolf _v._ Am. Tract Soc., 164 N. Y. 30, 33; Hogan _v._ Manh. Ry. Co., 149 N. Y. 23; Volkmar _v._ Manh. Ry. Co., 134 N. Y. 418), and that the thing by which he was injured came from the premises of the defendant. The passenger who was for the time under the protection of a common carrier needs only to show that the train upon which he was riding left the track (Seyboldt _v._ N. Y., L. E. & W. R. R. Co., 95 N. Y. 562, 565) or collided with another car or train (Loudoun _v._ Eighth Ave. R. R. Co., 162 N. Y. 380) and thus caused his injuries. The reason for the rule in such cases is not far to seek. The owner of a building or structure must exercise a high degree of care to so keep it that the wayfarer on the public streets shall not be injured by falling walls or missiles. The common carrier is under the strict duty to its passenger to keep its cars and tracks in a safe condition, and in all such cases where the plaintiff “has shown a situation which could not have been produced except by the operation of abnormal causes, the onus then rests upon the defendant to prove that the injury was caused without his fault.” Seyboldt _v._ N. Y., L. E. & W. R. R. Co., 95 N. Y. 565, 568. Ordinarily walls do not fall, missiles do not fly and trains are not derailed when those in control are in the exercise of the requisite care, and, therefore, the inference of negligence follows in logical sequence.
In the nature of things the injured employee who sues his employer must present a much higher degree of proof than is necessary in the case of a wayfarer or passenger. It is to be emphasized, however, that the difference is one of degree and not of kind. This more onerous burden which is placed upon the employee is the natural concomitant of the relation of the parties and of their resultant obligations. The employer is bound merely to the exercise of reasonable care in providing his employee with a safe place in which to work, with proper and adequate tools, appliances and machinery, and with fellow-employees competent for the tasks to which they are assigned. If the injured employee sues at common law and seeks to invoke the maxim, he must necessarily make proof of facts and circumstances which, under the common law, exclude every inference except that of the employer’s negligence. This means that the employee must himself be free from the imputation of contributory negligence; that he is not the victim of the negligence of co-employees; that the injury is not the result of some risk either inherent in the occupation or voluntarily assumed by the employee; and that the accident is one which, in the ordinary course of events, could not have happened if the employer had exercised the degree of care required of him by the common law. The same rule applies, in a modified degree, where the employee sues under the Employers’ Liability Act, as the plaintiff in this case has done. In such a case the plaintiff must establish facts and circumstances which, under the statute, would entitle him to recover in the absence of a sufficient explanation by the defendant, absolving him from the imputation of negligence. The proof must not be conjectural or speculative, but must consist of evidence which, tested by the ordinary rules of experience and observation, points to the single conclusion that the employer’s omission of a duty which he owes to his employee was the sole efficient cause of the accident. Ferrick _v._ Eidlitz, 195 N. Y. 248, 252.
The next question, in logical progression, is whether the plaintiff has established his case by facts and circumstances which negative the existence of any cause for the accident by which he was injured, save the negligence of the defendant. The plaintiff, as has been stated, was a locomotive fireman in the employ of the defendant. On the 25th of March, 1911, he and his engineer left Malone on engine No. 2055 for Moira to assist in bringing back a train. After arriving at Moira the engine was turned around and coupled to another engine already attached to a train, and a start was made for the return to Malone. Suddenly there occurred an explosion in the fire box of the engine which drove the doors from their fastenings, and expelled fire and boiling water into the cab, and burned and scalded the plaintiff, and blew him out of the cab to the ground with such force as to bruise him. Although this accident was of an unusual character, it will be assumed for the purposes of this discussion that it was not such an occurrence as would, in and of itself, justify the application of the maxim _res ipsa loquitur_, for the engine was then in the custody and control of the plaintiff and his engineer. The mere happening of the accident did not necessarily exclude the inference that it might have been caused by the negligence of the plaintiff, or without any negligence at all. It was, therefore, necessary for the plaintiff to supplement the proof of the accident with evidence tending to show that it resulted from the failure of the defendant to exercise ordinary care, either in the selection of the engine or in keeping it in reasonably safe repair. In that behalf the record discloses a number of facts and circumstances that bear upon the accident very directly and cogently. It appears that the train crews employed by the defendant have nothing to do with the care and inspection of the internal and hidden parts of the engines. That work is committed to a special corps of employees whose place of duty is in the hostelry where the engines are housed, made ready for service, and turned over to the crews designated to take them out. The engineers are charged with the duty of making a report of each trip which shall specify any needed repairs that come under their observation. The engineer Francey, who was on engine 2055 at the time of the accident, testified that he had used it on various specified dates during the month preceding the day of the accident, and that he had orally reported it as leaking, although he had been turning in written reports which made no mention of the fact. While such a circumstance might ordinarily affect the credibility of a witness, all doubt upon this subject is dissipated by the testimony of the defendant’s witnesses showing that the engine was inspected by the foreman of boiler makers on or about March 21st, 1911, and found to be in a leaky condition. Several of defendant’s witnesses testified that the engine had been in the shop at various times during the month on account of leaking flues, and that the last repairs in this regard were made two or three days before the accident.
After the accident an examination of the engine was made which revealed the probable cause of the trouble. One of the flues, which extend longitudinally through the boiler from the rear flue sheet to another flue sheet next the smoke stack, had been pushed or blown out of its socket in the rear flue sheet so that the forward end of the flue projected several feet beyond the forward flue sheet; thus leaving an opening in the rear flue sheet through which the boiling water and steam were admitted into the fire pot where the explosion was generated. There were 342 of these flues which were each 1⅞ inches in diameter and about 16 feet in length. These flues are “safe ended” into the flue sheets so that when they are in perfect condition there can be no leakage through them from the boiler. The particular flue that was blown or driven out of its place was in the bottom row of flues where there could be no inspection without taking out the “brick arch,” and that could be done only when the boiler was not in steam. There can be no doubt that the explosion by which the plaintiff was injured was due immediately to the displacement of the flue; but the cause of the dislodgement of the flue is not so clear. It is a matter of common knowledge that steam, like electricity, is a capricious and fickle agency which sometimes causes unexpected and unexplainable accidents. If the plaintiff’s case were wholly dependent upon evidence merely showing the happening of this explosion, it might be necessary to hold that he had not proved enough to give him the benefit of the maxim which he invokes. The ultimate question, therefore, is whether he has the support of surrounding circumstances which show that the accident was of “such a character as does not ordinarily occur where the party charged with responsibility has exercised the degree of care and caution required by law to avoid such a mishap.” Henson _v._ Lehigh Valley R. R. Co., 194 N. Y. 205, 211. We think he has. The defendant’s foreman testified that if a flue is loose at both ends it would be liable to move from the pressure, and that if a flue is loose at one end it is more liable to move than one that is not loose. It is undisputed that defendant’s chief boiler man inspected this engine on the 21st or 22d of March and found that a number of flues, about twenty-five, were leaking. These were repaired, but the boiler still leaked on the 24th, and the explosion occurred on the 25th. Since the defendant’s experts had found loose and leaking flues which they repaired, it is reasonable to infer that the displacement of another flue within two or three days was attributable to the same cause. This was not a part of the locomotive over which the plaintiff had any control, or in respect of which he had, so far as the record discloses, any duty or knowledge. The work of inspection and repair was the work of the defendant, and any failure in this regard was its failure. The almost immediate recurrence of a condition that had led to inspection and repair was circumstantial evidence which tended to show that the work had not been thoroughly done. We think, therefore, that the plaintiff was entitled to rest upon the rule of _res ipsa loquitur_, and that in the absence of a satisfactory and convincing explanation by the defendant, the plaintiff was entitled to recover.
Counsel for the defendant contends that such an explanation has been made. In that regard it appears that the locomotive was of a modern and standard type; that for several months from January, 1910, it was in the main shops of the defendant at Rutland, where it was given a thorough overhauling and sent out in perfect condition; that the complaints of leakage made in the early part of 1911 were followed by prompt inspection and complete repair. This was an explanation well calculated indeed to create a serious issue of fact, but we think it would be going too far to hold that it was conclusive as matter of law. The limitations of the rule of _res ipsa loquitur_, and the legal effect of defendant’s explanation, were well stated in the charge to the jury, and we think the judgment entered on the verdict must stand.
The judgment should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., COLLIN, CUDDEBACK, HOGAN, and CARDOZO, JJ., concur; HORNBLOWER, J., not sitting.
_Judgment affirmed._[99]
WING _v._ LONDON GENERAL OMNIBUS CO. IN THE COURT OF APPEAL, JULY 16, 1909. _Reported in [1909] 2 King’s Bench, 652._
FLETCHER MOULTON, L. J., read the following judgment:[100]—This is an appeal from the judgment delivered by the judge of the county court of Middlesex held in Clerkenwell in an action in which the plaintiff sued for damages resulting from an accident which occurred while she was a passenger in a motor omnibus belonging to the defendants.
The plaintiff’s claim was based on two alternative grounds: (1) that the defendants’ servants, whilst in charge of the motor omnibus, were guilty of negligence causing the accident, and (2) that the motor omnibus was itself a dangerous machine, and that the defendants were liable for having placed it upon the roadway, thereby creating a nuisance, whereby the plaintiff suffered damage.
The evidence given at the trial as to the nature and circumstances of the accident was meagre in the extreme. The plaintiff deposed to nothing more than that she was a passenger in the omnibus, and that she heard breaking of glass, and knew that the omnibus had hit something, and that she heard something fall. She tried to get out, and, in so doing, hurt her foot. No other witness was called who was present at the time of the accident, but evidence was given on her behalf by a police constable, who came up afterwards, and proved that an electric standard had been broken in the accident, and that the hind step of the motor omnibus had been slightly bent. No other damage had been caused to the omnibus. He also proved that the road was in a greasy state at the time by reason of rain that had fallen during the day. He was asked by the plaintiff’s counsel as to certain admissions made to him at the time by the driver and conductor of the omnibus, and proved that they stated to him that the hind part of the omnibus skidded, when going about five miles an hour, while the driver was trying to avoid two other vehicles. The defendants called no evidence except as to the quantum of damage. At the end of the plaintiff’s case, counsel for the defendants submitted that there was no evidence, either of negligence or of nuisance, to go to the jury, and the learned judge gave partial effect to that contention by withdrawing from the jury the question of negligence in the driving or management of the car. The plaintiff did not take exception to this by giving a cross notice of appeal, nor was the point raised before the Divisional Court, and it is not, in my opinion, open to her counsel to raise it now. But, apart from this, I am of opinion that the learned judge was right in so doing. There was no evidence whatever that the accident was due to negligence on the part of the servants of the defendants who were in charge of the omnibus, unless the mere occurrence of the accident amounts to such evidence. In my opinion the mere occurrence of such an accident is not in itself evidence of negligence. Without attempting to lay down any exhaustive classification of the cases in which the principle of _res ipsa loquitur_ applies, it may generally be said that the principle only applies when the direct cause of the accident, and so much of the surrounding circumstances as was essential to its occurrence, were within the sole control and management of the defendants, or their servants, so that it is not unfair to attribute to them a _prima facie_ responsibility for what happened. An accident in the case of traffic on a highway is in marked contrast to such a condition of things. Every vehicle has to adapt its own behaviour to the behaviour of other persons using the road, and over their actions those in charge of the vehicle have no control. Hence the fact that an accident has happened either to or through a particular vehicle is by itself no evidence that the fault, if any, which led to it was committed by those in charge of that vehicle. Exceptional cases may occur in which the peculiar nature of the accident may throw light upon the question on whom the responsibility lies, but there is nothing of the kind here. The collision with the electric standard was due to the omnibus skidding, and, if we are to give any weight to the admissions made by the defendants’ servants which were proved in evidence in chief as part of the plaintiff’s case, that skidding was due to difficulties in avoiding other vehicles. There is certainly no evidence to negative such a probable explanation of what actually happened, and it is impossible to say that this points to negligence, or that it establishes that any negligent act of the defendants’ servant was the cause of the accident. I am therefore of opinion that the learned judge acted rightly in withdrawing from the jury the issue as to the accident being due to negligence of the defendants’ servants in the driving or management of the vehicle.[101]
CARMODY _v._ BOSTON GAS LIGHT CO. SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY 2, 1895. _Reported in 162 Massachusetts Reports, 539._
Four actions for damages occasioned to the respective plaintiffs by the escape of gas were tried together.
Plaintiffs’ evidence tended to show that gas escaped into plaintiffs’ apartments from defendant’s pipes in the street; that plaintiffs inhaled the gas while asleep; and that the escape was due to the defective condition of the pipe.
Defendant’s evidence tended to prove that the defect in the pipe and the consequent escape of gas was due to acts of third persons of which the defendant had no notice, and not to any negligence of the defendant.
The plaintiffs requested the judge to rule that there was evidence enough of want of proper care on the part of the defendant to make it responsible, on the ground that it was bound to conduct its gas in a proper manner; and that the fact that the gas escaped was _prima facie_ evidence of some neglect on the part of the defendant.
The judge declined so to rule, and instructed the jury as follows:
“The mere fact that a pipe broke and the gas escaped is not of itself sufficient to establish the liability of the company. It is evidence for you to consider upon the question of neglect; but there is other evidence bearing upon this question of neglect, and so it becomes a matter for you to determine, in view of all the evidence bearing upon the question, the burden being upon the plaintiffs to satisfy you, as a result of all the evidence, that there was in fact a neglect by the defendant, through which, and by means of which, this gas escaped.”
* * * * *
Upon the counsel for the plaintiffs remarking, “Your honor has not given the requests I asked for, and so I will except to that,” the judge replied as follows: “Well, you asked me to say that the fact that the gas escaped is _prima facie_ evidence of some neglect on the part of the defendant. I do not choose to use that expression ‘_prima facie_ evidence,’ unless the defendant consents to it. I have already told the jury that it was evidence of neglect, or of negligence, on the defendant’s part, and evidence the force of which it was for them to determine in connection with any other evidence in the case bearing upon the same subject.”
The jury returned a verdict for the defendant; and the plaintiffs alleged exceptions.[102]
BARKER, J. The plaintiffs asked the court to instruct the jury “that there was evidence enough of want of proper care on the part of the defendant to make it responsible, on the ground that it was bound to conduct its gas in a proper manner, and that the fact that the gas escaped was _prima facie_ evidence of some neglect on the part of the defendant.” This request was copied from a ruling given in Smith _v._ Boston Gas Light Co., 129 Mass. 318, where this court said of it that, as applied to the facts of that case, it could not be said to be wrong. The presiding justice in the present case declined to give the instruction, but instructed the jury in other terms, which fully and correctly dealt with the phases of the cause to which the request was addressed.
While the ruling requested is sufficiently correct if it be construed as declaring that there was enough evidence of want of proper care to be submitted to the jury, it would invade the proper province of the jury if it was understood by them to mean that there was evidence enough to require them to find the defendant negligent, and the presiding justice was not bound to give a ruling which, as applied to the case upon trial, might have been so understood. Nor was he bound to use the Latin phrase upon which the plaintiffs insisted, but might well say, in place of it, that the fact that gas escaped was evidence of neglect “and evidence the force of which it was for them to determine in connection with any other evidence in the case bearing on the same subject.”
The plaintiffs’ exception did not go to the charge as given, but merely to the refusal of the request. They nevertheless argue that the statement of the charge, that “the mere fact that a pipe broke and the gas escaped is not of itself sufficient to establish the liability of the company,” was incorrect. But there was evidence with which the jury had to deal tending to show that the defendant had used due care to conduct its gas in a proper manner, and that the escape of gas by which the plaintiffs were injured was due to the acts of third persons of which the defendant had no notice, and not to any negligence of the defendant.
It is apparent, from the situation of the evidence and the context of the charge, that the sentence to which the plaintiffs now object could not have been understood by the jury as forbidding them to draw the inference of negligence from the facts that a pipe broke and that gas escaped; but that, as there was other evidence bearing upon the question of negligence, they must consider and weigh it all, and not come to a conclusion upon two circumstances merely.
The true construction of the ruling asked, as applied to the case at bar, would be, that, as matter of law, the breaking of a pipe and the consequent escape of gas prove negligence. The true rule is, that a jury may find negligence from those circumstances, but it is for them to say whether they will do so; and, if there are other circumstances bearing on the question, they must weigh them all.
Instructions that evidence “is sufficient to show,” or “has a tenddency to show,” or “is enough to show,” or “is _prima facie_ evidence of,” are not to be understood as meaning that there is a presumption of fact, but that the jury are at liberty to draw the inference from them. Commonwealth _v._ Clifford, 145 Mass. 97. Commonwealth _v._ Keenan, 148 Mass. 470. And so the instruction in a case where a number of circumstances bearing upon a question of fact are in evidence, that a part of them are not of themselves sufficient to establish the fact, coupled with explicit instructions that they are to be considered, must be understood as directing the jury to weigh together all the pertinent circumstances, and not to draw their inference from a part without considering all.
_Exceptions overruled._[103]
BENEDICK _v._ POTTS COURT OF APPEALS, MARYLAND, JUNE 28, 1898. _Reported in 88 Maryland Reports, 52._
Appeal from Circuit Court, where judgment was entered on a verdict for defendant, ordered by the court.
Defendant owned and operated, at a pleasure resort, a mimic railway, which was a wooden structure. Open cars were hoisted up an incline to the highest point of the railway, and were then run by gravity down and around a circular track to the ground. The length of the spiral track was about two thousand feet, and it made three circuits before reaching the ground. At about the middle of the last circle nearest the ground, the cars passed through a tunnel which was part of the structure. This tunnel was one hundred and fifty feet long, and completely incased that portion of the track, and hid the cars and their occupants from all observation when passing through it. The cars were provided with handles for the occupants to grasp during the rapid descent. Plaintiff was the sole occupant of the rear seat in one of the cars. The car was started and made the descent; but when it reached the ground at the end of the track the plaintiff was not in it, though as it entered the tunnel he was seen to be upon it. Search was at once made, and he was found inside the tunnel, in an unconscious condition, with a wound upon his head. After several days he was restored to consciousness. For the damages thus sustained, this suit was brought.
The car did not leave the track, no part of it was shown to be out of repair, the track was not defective, and no explanation is given in the record as to what caused the injury. The plaintiff distinctly stated that he made no effort to rise as he passed through the tunnel, and that he did not relax his grasp on the sides of the car. He was in the car when it passed into the tunnel. He was not in it when it emerged. How he got off was not shown.
Upon this state of facts the trial court instructed the jury that there was no legally sufficient evidence to show that the defendant had been guilty of negligence; and the verdict and judgment were accordingly entered for defendant. Plaintiff brought up the record by appeal.[104]
MCSHERRY, C. J. This is an action to recover damages for a personal injury, and the single question which the record presents is whether there was legally sufficient evidence of the defendant’s imputed negligence to carry the case to the jury. The facts are few and simple. [The learned judge then stated the facts.]
It is a perfectly well-settled principle that to entitle a plaintiff to recover in an action of this kind he must show not only that he has sustained an injury but that the defendant has been guilty of some negligence which produced that particular injury. The negligence alleged and the injury sued for must bear the relation of cause and effect. The concurrence of both and the _nexus_ between them must exist to constitute a cause of action. As an injury may occur from causes other than the negligence of the party sued, it is obvious that before a liability on account of that injury can be fastened upon a particular individual, it must be shown, or there must be evidence legally tending to show, that he is responsible for it; that is, that he has been guilty of the negligence that produced or occasioned the injury. In no instance can the bare fact that an injury has happened, of itself and divorced from all the surrounding circumstances, justify the inference that the injury was caused by negligence. It is true that direct proof of negligence is not necessary. Like any other fact, negligence may be established by the proof of circumstances from which its existence may be inferred. But this inference must, after all, be a legitimate inference and not a mere speculation of conjecture. There must be a logical relation and connection between the circumstances proved and the conclusion sought to be adduced from them. This principle is never departed from, and in the very nature of things it never can be disregarded. There are instances in which the circumstances surrounding an occurrence and giving a character to it are held, if unexplained, to indicate the antecedent or coincident existence of negligence as the efficient cause of an injury complained of. These are the instances where the doctrine of _res ipsa loquitur_ is applied. This phrase, which literally translated means that “the thing speaks for itself,” is merely a short way of saying that the circumstances attendant upon an accident are themselves of such a character as to justify a jury in inferring negligence as the cause of that accident; and the doctrine which it embodies, though correct enough in itself, may be said to be applicable to two classes of cases only, viz., “first, when the relation of carrier and passenger exists and the accident arises from some abnormal condition in the department of actual transportation; second, where the injury arises from some condition or event that is in its very nature so obviously destructive of the safety of person or property and is so tortious in its quality as, in the first instance at least, to permit no inference save that of negligence on the part of the person in the control of the injurious agency.” Thomas on Neg. 574. But it is obvious that in both instances more than the mere isolated, single, segregated fact that an injury has happened must be known. The injury, without more, does not necessarily speak or indicate the _cause_ of that injury—it is colorless; but the act that produced the injury being made apparent may, in the instances indicated, furnish the ground for a presumption that negligence set that act in motion. The maxim does not go to the extent of implying that you may from the mere fact of an injury infer what physical act produced that injury; but it means that when the physical act has been shown or is apparent and is not explained by the defendant, the conclusion that negligence superinduced it may be drawn as a legitimate deduction of fact. It permits an inference that the known act which produced the injury was a negligent act, but it does not permit an inference as to what act did produce the injury. Negligence manifestly cannot be predicated of any act until you know what the act is. Until you know _what_ did occasion an injury, you cannot say that the defendant was guilty of some negligence that produced that injury. There is, therefore, a difference between inferring as a conclusion of fact _what_ it was that did the injury; and inferring from a known or proven act occasioning the injury that there was negligence in the act that did produce the injury. To the first category the maxim _res ipsa loquitur_ has no application; it is confined, when applicable at all, solely to the second. In no case where the thing which occasioned the injury is unknown has it ever been held that the maxim applies; because when the thing which produced the injury is unknown it cannot be said to speak or to indicate the existence of causative negligence. In all the cases, whether the relation of carrier and passenger existed or not, the injury alone furnished no evidence of negligence—something more was required to be shown. For instance: In Penn. R. R. Co. _v._ MacKinney, 124 Pa. St. 462, it was said: “A passenger’s leg is broken, while on his passage, in a railroad car. This mere fact is no evidence of negligence on the part of the carrier until something further be shown. If the witness who swears to the injury testifies also that it was caused by a crash in a collision with another train of cars belonging to the same carrier, the presumption of negligence immediately arises; not, however, from the fact that the leg was broken, but from the circumstances attending the fact.” And so in Byrne _v._ Boadle, 2 Hurl. & Colt. 728, there was proof not only of an injury but there was evidence to show _how_ the injury happened, and the presumption of negligence was applied, not because of there being an injury, but because of the way or manner in which the injury was produced. And in Howser’s case, 80 Md. 146, the injury was caused by cross-ties falling from a moving train upon the plaintiff who was walking by the side of the track, and the presumption of negligence was allowed, not as an inference deducible from the injury itself, but as a conclusion resulting from the method in which and the instrumentality by which the injury had been occasioned. In the recent case of Consolidated Traction Co. _v._ Thalheimer, Court of Errors and Appeals, N. J., 2 Amer. Neg. Rep. 196,[105] it appeared that the plaintiff was a passenger of the appellant, and, having been notified by the conductor that the car was approaching the point where she desired to alight, got up from her seat and walked to the door while the car was in motion, and, while going through the doorway, she was thrown into the street by a sudden lurch and thus injured. The court said: “At all events, the fact that such a lurch or jerk occurred, as would have been unlikely to occur if proper care had been exercised, brings the case within the maxim _res ipsa loquitur_.” The inference of negligence arose not from the injury to the passenger, but from the _act_ that caused the injury. In B. & O. R. R. _v._ Worthington, 21 Md. 275, the train was derailed in consequence of an open switch, and it was held that the injury thus inflicted on the passenger was presumptive evidence of negligence—not that the mere injury raised such a presumption, but that the injury caused in the way and under the circumstances shown indicated actionable negligence unless satisfactorily explained.
Whether, therefore, there be a contractual relation between the parties or not, there must be proof of negligence or proof of some circumstances from which negligence may be inferred, before an action can be sustained. And whether you characterize that inference an ordinary presumption of fact, or say of the act that caused the injury, the thing speaks for itself, you assert merely a rebuttable conclusion deduced from known and obvious premises. It follows, of course, that when the _act_ that caused the injury is wholly unknown or undisclosed, it is simply and essentially impossible to affirm that there was a negligent act; and neither the doctrine of _res ipsa loquitur_ nor any other principle of presumption can be invoked to fasten a liability upon the party charged with having by negligence caused the injury for the infliction of which a suit has been brought.
Now, in the case at bar there is no evidence that the car on the track was out of repair. The car went safely to its destination, carrying the other occupants. There is no evidence that the roof of the tunnel struck the appellant, or that the fact that a small part of the central plank of the tunnel roof had been slabbed off had the most remote connection with the accident. It is a case presenting not a single circumstance showing _how_ or by what agency the injury occurred, and in which, with nothing but the isolated fact of the injury having happened, being proved, it is insisted that the jury shall be allowed to speculate as to the cause that produced it, and then to _infer_ from the cause thus assumed but not established, that there was actionable negligence. It is not an attempt to infer negligence from an apparent cause, but to infer the cause of the injury from the naked fact of injury, and then to superadd the further inference that this inferred cause proceeded from negligence. If in Howser’s case, _supra_, there had been no other evidence than the mere _fact_ of an injury, it cannot be pretended that the jury would have been allowed to speculate as to _how_ the injury had occurred.
The appellant was on the car when it entered the tunnel; he was not on the car when it emerged, but was found in an unconscious state in the tunnel. There was no defect in or abnormal condition affecting the means of actual transportation. The other occupants of the car passed safely through. What caused the appellant to be out of the car is a matter of pure conjecture. No one has explained or attempted to explain how he got where he was found. Indeed, the two persons who occupied the front seat were ignorant of the appellant’s absence from the car until it had reached its destination, and the appellant himself distinctly testified that he did not relax his hold to the car and did not attempt to rise, but lowered his head as he entered the tunnel. All that is certain is, that he was injured in _some_ way and he asks that the jury may be allowed, in the absence of all explanatory evidence, to infer that some act of a negligent character for which the appellee is responsible, caused the injury sustained by the appellant. No case has gone to that extent and no known principle can be cited to sanction such a position. There has been no circumstance shown which furnishes the foundation for an inference of negligence; and the circumstances which have been shown obviously do not bring the case within the doctrine of _res ipsa loquitur_. There was, consequently, no error in the ruling complained of, and the judgment of the Circuit Court must be affirmed.
_Judgment affirmed._[106]
SECTION V THE DUTY OF CARE—MISFEASANCE AND NONFEASANCE
FLINT & WALLING MANUFACTURING CO. _v._ BECKETT SUPREME COURT, INDIANA, DECEMBER 18, 1906. _Reported in 167 Indiana Reports, 491._
Beckett brought this action against the Flint & Walling Manufacturing Company to recover damages for harm done to his barn and the contents thereof, owing to the fact that the company constructed a windmill thereon in such an insufficient manner that it fell upon the roof of the barn.
The complaint contained, in substance, the following statements:—
There was an air-shaft in the centre of the barn, extending from the bottom to, and projecting through, the roof. Defendant contracted with plaintiff to erect on the air-shaft a windmill consisting of a wheel, tower, etc., to be erected in a first-class manner. The defendant erected the windmill in a negligent manner; especially in the mode of fastening the tower to the air-shaft. In consequence of this defective construction, a wind of ordinary velocity caused the windmill to break and twist the air-shaft and fall about sixty feet on the roof of the barn.
Trial in the Circuit Court. Verdict for plaintiff and judgment thereon. Defendant company appealed.[107]
GILLETT, J.
The leading contention of appellant’s counsel is that the duty it owed to appellee arose out of contract, and that, as appellant was not engaged in a public employment, its obligation could only be enforced by an action on the contract for a breach thereof. The latter insistence cannot be upheld. It is, of course, true that it is not every breach of contract which can be counted on as a tort, and it may also be granted that if the making of a contract does not bring the parties into such a relation that a common-law obligation exists, no action can be maintained in tort for an omission properly to perform the undertaking. It by no means follows, however, that this common-law obligation may not have its inception in contract. If a defendant may be held liable for the neglect of a duty imposed on him, independently of any contract, by operation of law, _a fortiori_ ought he to be liable where he has come under an obligation to use care as the result of an undertaking founded on a consideration.
Where the duty has its roots in contract, the undertaking to observe due care may be implied from the relationship, and should it be the fact that a breach of the agreement also constitutes such a failure to exercise care as amounts to a tort, the plaintiff may elect, as the common-law authorities have it, to sue in case or in assumpsit. It is broadly stated in 1 Comyn’s Digest, Action on the Case for Negligence, A 4, p. 418, that “if a man neglect to do that, which he has undertaken to do, an action upon the case lies.... But, if there be not any neglect in the defendant, an action upon the case does not lie against him, though he do not perform his undertaking.” Professor Pollock says: “One who enters on the doing of anything attended with risk to the persons or property of others is held answerable for the use of a certain measure of caution to guard against that risk. To name one of the commonest applications, ‘those who go personally or bring property where they know that they or it may come into collision with the persons or property of others have by law a duty cast upon them to use reasonable care and skill to avoid such collision.’... In some cases this ground of liability may coexist with a liability on contract towards the same person, and arising (as regards the breach) out of the same facts. Where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case. And this duty is not affected by the fact, if so it be, that he is
## acting for reward, in other words, under a contract, and may be liable
on the contract. The two duties are distinct, except so far as the same party cannot be compensated twice over for the same facts, once for the breach of contract and again for the wrong. Historically the liability in tort is older; and indeed it was by special development of this view that the action of assumpsit, afterwards the common mode of enforcing simple contracts, was brought into use. ‘If a smith prick my horse with a nail, etc., I shall have my action upon the case against him, without any warranty by the smith to do it well.... For it is the duty of every artificer to exercise his art rightly and truly as he ought.’” Webb’s Pollock, Torts, 533–536. This general thought also finds expression in Mr. Street’s valuable work (1 Street, Foundations of Legal Liability, 92). It is there said: “The general doctrine may be laid down thus: In every situation where a man undertakes to act or to pursue a particular course he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another just as if he had bound himself by an obligatory promise to exercise the required degree of care. In this view, statements so frequently seen in negligence cases, to the effect that men are bound to act with due and reasonable care, are really vital and significant expressions. If there had been any remedial necessity for so declaring, it could obviously have been said without violence to the principle that men who undertake to act are subject to a fictitious or implied promise to act with due care.” See also Howard _v._ Shepherd, (1850) 9 C. B. (67 Eng. Com. Law) 296, 321; Coy _v._ Indianapolis Gas Co., (1897) 146 Ind. 655, 36 L. R. A. 535; Parrill _v._ Cleveland, etc., R. Co., (1900) 23 Ind. App. 638; Rich _v._ New York, etc., R. Co., (1882) 87 N. Y. 382; Dean _v._ McLean, (1875) 48 Vt. 412, 21 Am. Rep. 130; Stock _v._ City of Boston, (1889) 149 Mass. 410, 21 N. E. 871, 14 Am. St. 430; Bickford _v._ Richards, (1891) 154 Mass. 163, 27 N. E. 1014, 26 Am. St. 224; Addison, Torts (3d ed.), p. 13; 1 Thompson, Negligence (2d ed.), § 5; 1 Shearman & Redfield, Negligence (5th ed.), §§ 9, 22; Saunders, Negligence, 55, 121; 6 Cyc. Law and Proc. 688.
The position in which appellant placed this large and heavy structure, located, as it was, upon the barn, some seventy feet above the earth, was such that it was calculated to do great harm to appellee’s property should it fall. We cannot doubt, in view of the terms of the contract, construed in the light of the practical construction which the parties gave to it, to say nothing of the extraneous agreement set forth in the complaint, that it was the duty of appellant to exercise ordinary care to secure the tower in such a manner that this heavy and exposed structure would not, under the action of ordinary winds, weave around and become detached from the body of the air-shaft. Insecurely fastened, as the complaint shows that this structure was, appellant was bound to apprehend that it might fall, and that, if it did, great injury would thereby be occasioned to appellee. It was also bound to apprehend, from the very care and skill which it impliedly held itself out as exercising (a circumstance calculated to throw appellee off his guard), and from the fact that an examination was difficult, that in all probability the defects would not be observed in time to avoid the injury. Indeed, as laid down in Mowbray _v._ Merryweather, [1895] 2 Q. B. 640, and Devlin _v._ Smith, (1882) 89 N. Y. 470, 42 Am. Rep. 311, appellee owed no duty, so far as appellant was concerned, to examine the tower. The contrivance was inherently dangerous, and the circumstances of placing it upon the barn, as shown, made it calculated to eventuate in harm. This being true, and as there was no intervening responsible agency between appellee and the wrong, so that the causal relation remained unbroken, we can perceive no reason for acquitting appellant of responsibility as a tort feasor. See Wharton, Negligence (2d ed.), § 438; 1 Beven, Negligence (2d ed.), 62; Roddy _v._ Missouri Pac. R. Co., (1891) 104 Mo. 234, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. 333. It is not necessary to consider the extent to which contracts may impose obligations to exercise care for the protection of third persons, for here the relation is direct and immediate, but we quote, as showing that there is clearly a liability in tort, in such a case as this, the following general statements in 1 Shearman & Redfield, Negligence (5th ed.), § 117, with reference to the liability for selling dangerous goods: “But one who knowingly sells an article intrinsically dangerous to human life or health, such as poison, explosive oils or diseased meat, concealing from the buyer knowledge of that fact, is responsible to any person who, without fault on the part of himself or any other person, sufficient to break the chain of causation, is injured thereby. And we see no reason why the same rule should not apply to articles known to be dangerous to property.”
* * * * *
A number of questions are argued by appellant’s counsel which are based upon the contention that the theory of the complaint was that appellant had committed a breach of contract. The latter insistence is based on the fact that the contract is set out in full in the complaint. It is often difficult to determine whether, in the statement of such a cause of action as the one under consideration, wherein the very breach of the contract also constitutes negligence, the purpose of the pleader was to rely upon a breach of contract or to charge negligence in the violation of the implied duty which was created by the undertaking of the defendant. It is true that in an action on the case for negligence, wherein the declaration or complaint is not based on mere nonfeasance it is not necessary to plead a consideration, and, therefore, where the
## action is based on the manner in which an undertaking was performed, or,
in other words, on some misfeasance or malfeasance, the allegation of a consideration may be regarded as one of the markings of an action _ex contractu_. But we do not understand that this is a controlling consideration; on the contrary, it does not appear to admit of question that if the contract or consideration be set out as a matter of inducement only, the plaintiff’s action may be regarded as one in case for a violation of the common-law duty which the circumstances had imposed upon the defendant. 1 Chitty, Pleading, *135; Dickson _v._ Clifton, 2 Wils. 319; Watson, Damages for Per. Inj., § 570; 21 Ency. Pl. and Pr., 913. We are especially impressed with the view that in code pleading, which was designed preëminently to be a system of fact pleading, a plaintiff, in suing in tort, may properly set out his contract, as constituting the underlying fact, instead of charging the defendant’s undertaking in general terms, and that the plaintiff does not thereby necessarily commit himself to the theory that his action is for breach of contract. Leeds _v._ City of Richmond, (1885) 102 Ind. 372; Parrill _v._ Cleveland, etc., R. Co., _supra_; McMurtry _v._ Kentucky Cent. R. Co., (1886) 84 Ky. 462, 1 S. W. 815; Watson, Damages for Per. Inj., § 570. In the complaint before us appellee not only sets out the written contract, but he pleads a supplemental or subsidiary agreement as well, so that it can hardly be said that he relied on the written contract as the foundation of the action. He charges no breach of the contract except as it can be implied from the allegations of negligence; he alleges damages “by reason of the defendant’s negligence, carelessness, imprudence, and unskilfulness in erecting, constructing, and fastening said steel tower to said air-shaft as aforesaid;” he charges, in setting forth the total amount of his damages, that they were occasioned “by reason of the defendant’s negligence and failure of duty as herein alleged,” and he avers that he “had no notice or knowledge of the faulty, negligent, and unskilful erection of said mill,” and that he himself was without fault or negligence in the premises. In view of the general structure of the complaint, and applying to it the rule that a construction of a pleading which will give effect to all of its material allegations is to be preferred, where reasonably possible (Monnett _v._ Turpie, [1892] 133 Ind. 424), it appears to us that it must be held that the action was for the tort. But, admitting that there is room for doubt on this subject, the fact that the court below, as the record plainly shows, tried the cause on the theory that it was an action _ex delicto_, must settle the question against the contention of appellant. Lake Erie, etc., R. Co. _v._ Acres, (1886) 108 Ind. 548; Diggs _v._ Way, (1899) 22 Ind. App. 617.
* * * * *
_Judgment affirmed._[108]
KELLY _v._ METROPOLITAN R. CO. IN THE COURT OF APPEAL, APRIL 24, 1895. _Reported in [1895] 1 Queen’s Bench, 944._
Appeal from an order of a judge at chambers affirming an order of a master directing that the plaintiff’s bill of costs should be referred back to be drawn on the county court scale.
The action was brought to recover damages for personal injuries to the plaintiff while a passenger on the defendants’ railway. The statement of claim alleged an agreement by the defendants to carry the plaintiff safely, and a breach of that agreement in negligently and improperly managing the train in which he was, so that it ran into the wall at Baker Street Station, whereby the plaintiff sustained injury. It was admitted by the defendants that the accident occurred by the negligence of the engine-driver in not turning off steam in time to prevent the train running into the dead-end at the station. A sum of 20_l._ was paid into court, and the jury returned a verdict for the plaintiff for 25_l._
When the plaintiff’s costs were taken in to be taxed, the master was of opinion that, on the authority of Taylor _v._ Manchester, Sheffield, and Lincolnshire Ry. Co., [1895] 1 Q. B. 134, the act of the engine-driver being one of omission, the action was founded on contract, and that therefore the plaintiff was only entitled to costs on the county court scale. On appeal, this decision was affirmed by Day, J.
The plaintiff appealed.
_Kemp, Q. C._, and _Cagney_, for the plaintiff, submitted that the
## action was in fact an action of tort, and was tried as such, and that
the plaintiff was entitled to costs on the High Court scale.
_Lawson Walton, Q. C._, and _George Elliott_, for the defendants. The duty of the defendants was contractual, and they were bound to take due care not to injure the plaintiff. The act which caused the injury was an omission to turn off steam, and amounted to a nonfeasance. It was not an act of commission or misfeasance, and the defendants were not liable in tort. The distinction is dealt with in the judgment of Lindley, L. J., and A. L. Smith, L. J., in Taylor _v._ Manchester, Sheffield, and Lincolnshire Ry. Co., [1895] 1 Q. B. 134, and the present case comes within that authority.
[They also cited Foulkes _v._ Metropolitan District Ry. Co., 4 C. P. D. 267; 5 C. P. D. 157.]
A. L. SMITH, L. J., read the following judgment:[109] There appears to have been some misapprehension as to what was decided in the case of Taylor _v._ Manchester, Sheffield, and Lincolnshire Ry. Co., [1895] 1 Q. B. 134, to which I was a party.
The plaintiff in the present case was a passenger on the defendants’ railway, and whilst lawfully riding in one of their carriages was injured by its being negligently run into a dead-end by the defendants’ driver.
It has been thought by the master, and also by Day, J., that, because the negligence was that the driver omitted to turn off steam, this constituted a nonfeasance or omission within what was said in the above-mentioned case, and that as the plaintiff had recovered 25_l._ and no more he was only entitled to county court costs. I am clearly of opinion that this is not what was decided, nor is any such statement to be found in that judgment.
The distinction between acts of commission or misfeasance, and acts of omission or nonfeasance, does not depend on whether a driver or signalman of a defendant company has negligently turned on steam or negligently hoisted a signal, or whether he has negligently omitted to do the one or the other. The distinction is this, if the cause of complaint be for an act of omission or nonfeasance which without proof of a contract to do what has been left undone would not give rise to any cause of action (because no duty apart from contract to do what is complained of exists), then the action is founded upon contract and not upon tort. If, on the other hand, the relation of the plaintiff and the defendants be such that a duty arises from that relationship, irrespective of contract, to take due care, and the defendants are negligent, then the action is one of tort, and as regards the County Court Acts and costs this is what was laid down in the above-mentioned case. The appeal should be allowed with costs here and below.
RIGBY, L. J. I entirely agree. It appears to me that the attempt to dissect the act of the defendants’ servant, and to treat the mere omission to turn off steam as a nonfeasance within the meaning of the cases referred to, altogether fails. An engine-driver is in charge of the train, and a passenger is in that train, independently of contract, with the permission of the defendants. That passenger is injured in consequence of the train being negligently brought into collision with the dead-end. The proper description of what was done is that it was a negligent act in so managing the train as to allow it to come into contact with the dead-end and so cause the accident. It is a case in which the company by their servant neglected a duty which they owed to the plaintiff—that is to say, it was a case in which an action of tort could be brought.
_Appeal allowed._[110]
SOUTHERN RAILWAY COMPANY _v._ GRIZZLE SUPREME COURT, GEORGIA, JANUARY 13, 1906. _Reported in 124 Georgia Reports, 735._
## Action by Mrs. Grizzle against the Southern Railway Company and T. A.
O’Neal.
The petition alleged, in substance, that the petitioner’s husband was killed by the negligence of the railway company, and of O’Neal, who was the engineer in charge of the train, while the train was being operated over a public-road crossing. It was alleged, _inter alia_, that no bell was rung nor whistle sounded, nor the speed of the train checked, and that the requirements of the blow-post law[111] were entirely disregarded by the engineer. To this petition O’Neal demurred on several grounds. The demurrer was overruled, and O’Neal excepted.[112]
COBB, P. J. 1. An agent is not ordinarily liable to third persons for mere nonfeasance. Kimbrough _v._ Boswell, 119 Ga. 210. An agent is, however, liable to third persons for misfeasance.[113] Nonfeasance is the total omission or failure of the agent to enter upon the performance of some distinct duty or undertaking which he has agreed with his principal to do. Misfeasance means the improper doing of an act which the agent might lawfully do; or, in other words, it is the performing of his duty to his principal in such a manner as to infringe upon the rights and privileges of third persons. Where an agent fails to use reasonable care or diligence in the performance of his duty, he will be personally responsible to a third person who is injured by such misfeasance. The agent’s liability in such cases is not based upon the ground of his agency, but upon the ground that he is a wrong-doer, and as such he is responsible for any injury he may cause. When once he enters upon the performance of his contract with his principal, and in doing so omits, or fails to take reasonable care in the commission of, some act which he should do in its performance, whereby some third person is injured, he is responsible therefor to the same extent as if he had committed the wrong in his own behalf. See 2 Clark & Skyles on Agency, 1297 _et seq._ Misfeasance may involve also to some extent the idea of not doing; as where an agent engaged in the performance of his undertaking does not do something which it is his duty to do under the circumstances, or does not take that precaution or does not exercise that care which a due regard to the rights of others requires. All this is not doing, but it is not the not doing of that which is imposed upon the agent merely by virtue of his relation, but of that which is imposed upon him by law as a responsible individual in common with all other members of society. It is the same not doing which constitutes
## actionable negligence in any relation. Mechem on Ag. § 572. As was said
by Gray, C. J., in Obsorne _v._ Morgan, 130 Mass. 102 (39 Am. Rep. 439): “If the agent once actually undertakes and enters upon the execution of a particular work, it is his duty to use reasonable care in the manner of executing it, so as not to cause any injury to third persons which may be the natural consequence of his acts; and he cannot, by abandoning its execution midway and leaving things in a dangerous condition, exempt himself from liability to any person who suffers injury by reason of his having so left them without proper safeguards. This is not nonfeasance or doing nothing, but it is misfeasance, doing improperly.” In that case the agent was held liable by the fall of a tackle-block and chains from an iron rail suspended from the ceiling of a room, which fell for the reason that the agent had suffered them to remain in such a manner and so unprotected that they fell upon and injured the plaintiff. In Bell _v._ Josselyn, 3 Gray, 309 (63 Am. Dec. 742), Metcalf, J., said: “Assuming that he was a mere agent, yet the injury for which this action was brought was not caused by his nonfeasance, but by his misfeasance. Nonfeasance is the omission of an act which a person ought to do; misfeasance is the improper doing of an act which a person might lawfully do.... The defendant’s omission to examine the state of the pipes, ... before causing the water to be let on, was a nonfeasance. But if he had not caused the water to be let on, that nonfeasance would not have injured the plaintiff.”
In the present case the failure of the engineer to comply with the requirements of the blow-post law was not doing, but the running of the train over the crossing at a high rate of speed without giving the signals required by law was a positive act, and the violation of a duty which both the engineer and the railroad company owed to travelers upon the highway. The engineer having once undertaken in behalf of the principal to run the train, it was incumbent upon him to run it in the manner prescribed by law; and a failure to comply with the law, although it involved an act of omission, was not an act of mere nonfeasance, but was an act of misfeasance. This view is strengthened by the fact that the blow-post law renders the engineer indictable for failure to comply with its provisions. The allegations of the petition were therefore sufficient to charge O’Neal with a positive tort, for which the plaintiff would be entitled to bring her action against him.[114]
BLACK _v._ NEW YORK, NEW HAVEN, AND HARTFORD R. CO. SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY 2, 1907. _Reported in 193 Massachusetts Reports, 448._
Tort for personal injuries alleged to have been caused by the negligence of the servants of the defendant on February 7, 1903, while the plaintiff was a passenger of the defendant. Writ dated March 20, 1903.
At the trial in the Superior Court, Wait, J., at the close of the plaintiff’s evidence ordered a verdict for the defendant; and the plaintiff alleged exceptions. The material evidence is described or quoted in the opinion.
KNOWLTON, C. J. This action was brought to recover for an injury alleged to have been caused by the negligence of the defendant’s servants. The plaintiff was a passenger on the defendant’s train, which ran from Boston through Ashmont on the evening of February 7, 1903. He testified to having become so intoxicated that he had no recollection of anything that occurred after leaving a cigar store in Boston, until he awoke in the Boston City Hospital, about four o’clock the next day. One Thompson testified “that he took the 9.23 train on the evening of February 7, 1903, at the South Station in Boston for Ashmont, and occupied a seat near the rear of the last car of the train; that there were about twenty passengers in the car, and he noticed Black sitting in the seat opposite, very erect, with his eyes closed. When the conductor came through, Mr. Black went through his pockets as if he were looking for a ticket, and not being able to find it, tendered a fifty-cent piece in payment for his fare. The conductor began to name off the stations from Field’s Corner first and then Ashmont and when he said ‘Ashmont,’ Mr. Black nodded his head. The conductor gave him his change and his rebate check. At Ashmont, where the train stops, there is a gravelled walk, running the whole length, as a platform, then there is a flight of steps, ten or twelve, that leads up to the asphalt walk around the station, so when you go up from the steps you have to walk along this walk. The conductor and brakeman took Black out of the car, with one on each side. The distance from the steps of the car to the steps that lead up to the station was twenty-five feet. As they went along the platform, the conductor and trainman were on each side of him. They tried to stand him up, but his legs would sink away from him. They sort of helped him up and carried him to the bottom of the steps. When they went to the bottom of the steps, they continued, one on each side of him. Then one of the men got on one side with his arm around him and the other back of him sort of pushing him, and they took him up about the fifth or sixth step, and after they got him up there, they turned right around and left him and went down the steps. Mr. Black sort of balanced himself there just a minute and then fell completely backward. He turned a complete somersault and struck on the back of his head. The railroad men just had time to get down to the foot of the steps. There was a railing that led up those steps and the steps were about ten feet wide. Mr. Black was upon the right-hand side going up and he was left right near the railing. When he fell, he did not seize hold of anything, his arms were at his side.”
On this testimony the jury might find that the plaintiff was so intoxicated as to be incapable of standing, or walking, or caring for himself in any way, and that the defendant’s servants, knowing his condition, left him halfway up the steps where they knew, or ought to have known, that he was in great danger of falling and being seriously injured. They were under no obligation to remove him from the car, or to provide for his safety after he left the car. But they voluntarily undertook to help him from the car, and they were bound to use ordinary care in what they did that might affect his safety. Not only in the act of removal, but in the place where they left him, it was their duty to have reasonable regard for his safety in view of his manifest condition. The jury might have found that they were negligent in leaving him on the steps, where a fall would be likely to do him much harm. Moody _v._ Boston & Maine Railroad, 189 Mass. 277.
The defence rests principally upon the fact that the plaintiff was intoxicated, and was incapable of caring for himself after he was taken from the train, and therefore was not in the exercise of due care. If his voluntary intoxication was a direct and proximate cause of the injury, he cannot recover. The plaintiff contends that it was not a cause, but a mere condition, well known to the defendant’s servants, and that their act was the direct and proximate cause of the injury, with which no other act or omission had any causal connection. The distinction here referred to is well recognized in law....
We are of opinion that the jury in the present case might have found that the plaintiff was free from any negligence that was a direct and proximate cause of the injury.
_Exceptions sustained._[115]
UNION PACIFIC RAILWAY COMPANY _v._ CAPPIER SUPREME COURT, KANSAS, APRIL 11, 1903. _Reported in 66 Kansas Reports, 649._
ERROR from Wyandotte District Court.
SMITH, J. This was an action brought by Adeline Cappier, the mother of Irvin Ezelle, to recover damages resulting to her by reason of the loss of her son, who was run over by a car of plaintiff in error, and died from the injuries received. The trial court, at the close of the evidence introduced to support a recovery by plaintiff below, held that no careless act of the railway company’s servants in the operation of the car was shown, and refused to permit the case to be considered by the jury on the allegations and attempted proof of such negligence. The petition, however, contained an averment that the injured person had one leg and an arm cut off by the car-wheels, and that the servants of the railway company failed to call a surgeon, or to render him any assistance after the accident, but permitted him to remain by the side of the tracks and bleed to death. Under this charge of negligence a recovery was had.
While attempting to cross the railway tracks Ezelle was struck by a moving freight-car pushed by an engine. A yardmaster in charge of the switching operations was riding on the end of the car nearest to the deceased and gave warning by shouting to him. The warning was either too late or no heed was given to it. The engine was stopped. After the injured man was clear of the track, the yardmaster signalled the engineer to move ahead, fearing, as he testified, that a passenger train then about due would come upon them. The locomotive and car went forward over a bridge, where the general yardmaster was informed of the accident and an ambulance was summoned by telephone. The yardmaster then went back where the injured man was lying and found three Union Pacific switchmen binding up the wounded limbs and doing what they could to stop the flow of blood. The ambulance arrived about thirty minutes later and Ezelle was taken to a hospital, where he died a few hours afterward.
In answer to particular questions of fact, the jury found that the accident occurred at 5.35 P. M.; that immediately one of the railway employees telephoned to police headquarters for help for the injured man; that the ambulance started at 6.05 P. M. and reached the nearest hospital with Ezelle at 6.20 P. M., where he received proper medical and surgical treatment. Judgment against the railway company was based on the following question and answer:—
“Ques. Did not defendant’s employees bind up Ezelle’s wounds and try to stop the flow of blood as soon as they could after the accident happened? Ans. No.”
The lack of diligence in the respect stated was intended, no doubt, to apply to the yardmaster, engineer, and fireman in charge of the car and engine.
These facts bring us to a consideration of the legal duty of these employees toward the injured man after his condition became known. Counsel for defendant in error quotes the language found in Beach on Contributory Negligence (3d ed.), § 215, as follows:—
“Under certain circumstances, the railroad may owe a duty to a trespasser after the injury. When a trespasser has been run down, it is the plain duty of the railway company to render whatever service is possible to mitigate the severity of the injury. The train that has occasioned the harm must be stopped, and the injured person looked after; and, when it seems necessary, removed to a place of safety, and carefully nursed, until other relief can be brought to the disabled person.”
The principal authority cited in support of this doctrine is Northern Central Railway Co. _v._ The State, use of Price et al, 29 Md. 420, 96 Am. Dec. 545. The court in that case first held that there was evidence enough to justify the jury in finding that the operatives of the train were negligent in running it too fast over a road-crossing without sounding the whistle, and that the number of brakemen was insufficient to check its speed. Such negligence was held sufficient to uphold the verdict, and would seem to be all that was necessary to be said. The court, however, proceeded to state that, from whatever cause the collision occurred, it was the duty of the servants of the company, when the man was found on the pilot of the engine in a helpless and insensible condition, to remove him, and to do it with proper regard to his safety and the laws of humanity. In that case the injured person was taken in charge by the servants of the railway company and, being apparently dead, without notice to his family, or sending for a physician to ascertain his condition, he was moved to defendant’s warehouse, laid on a plank and locked up for the night. The next morning, when the warehouse was opened, it was found that during the night the man had revived from his stunned condition and moved some paces from the spot where he had been laid, and was found in a stooping posture, dead but still warm, having died from hemorrhage of the arteries of one leg, which was crushed at and above the knee. It had been proposed to place him in the defendant’s station-house, which was a comfortable building, but the telegraph operator objected, and directed him to be taken into the warehouse, a place used for the deposit of old barrels and other rubbish.
The Maryland case does not support what is so broadly stated in Beach on Contributory Negligence. It is cited by Judge Cooley, in his work on Torts, in a note to a chapter devoted to the negligence of bailees (ch. xx.), indicating that the learned author understood the reasoning of the decision to apply where the duty began after the railway employees had taken charge of the injured person.
After the trespasser on the track of a railway company has been injured in collision with a train, and the servants of the company have assumed to take charge of him, the duty arises to exercise such care in his treatment as the circumstances will allow. We are unable, however, to approve the doctrine that when the acts of a trespasser himself result in his injury, where his own negligent conduct is alone the cause, those in charge of the instrument which inflicted the hurt, being innocent of wrong-doing, are nevertheless blamable in law if they neglect to administer to the sufferings of him whose wounds we might say were self-imposed. With the humane side of the question courts are not concerned. It is the omission or negligent discharge of legal duties only which come within the sphere of judicial cognizance. For withholding relief from the suffering, for failing to respond to the calls of worthy charity, or for faltering in the bestowment of brotherly love on the unfortunate, penalties are found not in the laws of men, but in that higher law, the violation of which is condemned by the voice of conscience, whose sentence of punishment for the recreant act is swift and sure. In the law of contracts it is now well understood that a promise founded on a moral obligation will not be enforced in the courts. Bishop states that some of the older authorities recognize a moral obligation as valid, and says:—
“Such a doctrine, carried to its legitimate results, would release the tribunals from the duty to administer the law of the land; and put, in the place of law, the varying ideas of morals which the changing incumbents of the bench might from time to time entertain.” (Bish. Cont. § 44.)
Ezelle’s injuries were inflicted, as the court below held, without the fault of the yardmaster, engineer, or fireman in charge of the car and locomotive. The railway company was no more responsible than it would have been had the deceased been run down by the cars of another railroad company on a track parallel with that of plaintiff in error. If no duty was imposed on the servants of defendant below to take charge of, and care for, the wounded man in such a case, how could a duty arise under the circumstances of the case at bar? In Barrows on Negligence, page 4, it is said:—
“The duty must be owing from the defendant to the plaintiff, otherwise there can be no negligence, so far as the plaintiff is concerned; ... and the duty must be owing to plaintiff in an individual capacity, and not merely as one of the general public.
“This excludes from actionable negligence all failures to observe the obligations imposed by charity, gratitude, generosity, and the kindred virtues. The moral law would obligate an attempt to rescue a person in a perilous position,—as a drowning child,—but the law of the land does not require it, no matter how little personal risk it might involve, provided that the person who declines to act is not responsible for the peril.” (See, also, Kenney _v._ The Hannibal & St. Joseph Railroad Company, 70 Mo. 252, 257.)
In the several cases cited in the brief of counsel for defendant in error to sustain the judgment of the trial court, it will be found that the negligence on which recoveries were based occurred after the time when the person injured was in the custody and care of those who were at fault in failing to give him proper treatment.
The judgment of the court below will be reversed, with directions to enter judgment on the findings of the jury in favor of the railway company.
All the justices concurring.[116]
HUNICKE _v._ MERAMEC QUARRY COMPANY SUPREME COURT OF MISSOURI, DECEMBER 19, 1914. _Reported in 262 Missouri Reports, 560._
WOODSON, P. J.... I do not understand counsel for plaintiff to make the broad claim that, in the absence of the question of _emergency_, presented in this case, it would have been the duty of the defendant to have furnished medical or surgical treatment for the injured man, upon the occasion mentioned; but I do understand counsel to contend, and which I believe is the law, that when an employee is engaged in any dangerous business for the master, and while in the performance of his duties, as such, he is so badly injured that he is thereby rendered physically or mentally incapable of procuring medical assistance for himself, then that duty, as a matter of law, is devolved upon the master, and that he must perform that duty with reasonable diligence and in a reasonable manner, through the agency of such of his employees as may be present at the time.
In other words, without trying to state the law in detail governing the masters duties in all cases of this character, that duty is put in operation whenever, under the facts and circumstances of the case, the employee is thereby so injured that he or she is incapacitated from caring for himself or herself, as the case may be.
The uncontradicted evidence in this case shows that the deceased was so badly injured that he was physically incapacitated to care for himself or to engage medical or surgical treatment; also, that the character of his injuries was such as required immediate surgical attention, for it was apparent to all present that his leg was frightfully crushed, and that his life’s blood was freely flowing from his body. So obvious was this that several of those present, at the time of the accident, tried by their crude methods, to stop its flow. But the highest officer of the company present, the superintendent, thought none of their remedies were worthy of trial and told them their proposed treatment would do no good. He then telephoned to Dr. Kirk, at Kimswick, the condition of the injured man, Hunicke, and requested him to come to Wicks and treat the injured man; but the doctor being previously engaged in a serious case, could not leave it. The doctor, however, telephoned the superintendent to bring the injured party to Kimswick, some two miles distant, and that he would there treat him.
The evidence shows that both Wicks and Kimswick were on the railroad and that a hand-car was present which could have been used in conveying Hunicke from the former to the latter place for treatment.
For some reason not made clear, the superintendent declined to take the injured man to Kimswick for treatment, but telephoned the facts of the injury to the manager of the company at St. Louis, some twelve or fourteen miles distant, who telephoned back to the superintendent to place the injured man on the next train and send him to St. Louis. This was done; and some three or four hours later, the train arrived in the city; and upon the arrival of the train Hunicke was speedily taken to the hospital where his limb was amputated; but in the meantime practically all of the blood of his body had flowed therefrom, and he died shortly thereafter.
In the statement of the case we have set out much of the evidence tending to show the negligence of the defendant in not procuring surgical treatment for Hunicke more promptly, and that he would not have died had he received prompt treatment. That evidence tended to show that Kimswick was only two miles distant from the place of injury and that the injured man could have been taken there on a hand-car in a very _few_ minutes, probably from fifteen to twenty, at the outside. Had this been done, in all probability the flow of blood would have been stanched several hours before it was finally stopped in the city of St. Louis.
It is true that there was some evidence which tended to show that such a trip on a hand-car would have been rough and jolting, and thereby might have aggravated the flow of the blood, but conceding that to be true, it could not have caused more waste of blood than did the constant flow during the hours that passed while he was waiting for the train and being conveyed to the city of St. Louis thereon. And it seems to me that common sense would teach us that a trip on a hand-car to Kimswick would not have caused the blood to flow more freely than the trip on the train to St. Louis, six or seven times as far, would have done.
But be that as it may, when we consider those facts in connection with all the other facts and circumstances shown by the evidence, we have reached the conclusion that this, as well as the question of negligence in delaying the procurement of a surgeon, was for the jury, and that the evidence introduced was sufficient to make out a _prima facie_ case for the plaintiff.
In other words, we are of the opinion that the evidence tended to show that the company was guilty of negligence in not using more diligence in procuring medical and surgical treatment for this party; also that it tended to show that said negligence was the proximate cause of his death.
* * * * *
In my opinion there is no possibility of doubt but what the law is that, whenever one person employs another to perform dangerous work, and while performing that work he is so badly injured as to incapacitate him from caring for himself, then the duty of providing medical treatment for him is devolved upon the employer; and that duty in my opinion, grows out of the fact that when we get down to the real facts in all such cases, there is an unexpressed humane and natural understanding existing between them to the effect that whenever any one in such a case is so injured that he cannot care for himself, then the employer will furnish him medical or surgical treatment as the case may be.
This is common knowledge. There is not an industrial institution in this country, great or small, where that practice is not being carried on to-day; and that has been the custom and usage among men from the dawn of civilization down to the present day, and will continue to be practised in the future, just so long as the human heart beats in sympathy for the unfortunate, and desires to aid suffering humanity. The same principle underlies all other avocations of life. Even armies while engaged in actual warfare observe and obey this rule when possible. The soldier who refuses to render surgical or medical aid to the victim of his own sword, is eschewed by all decent men; while upon the other hand, all who administer to the wants and necessities of the sick and wounded are considered as God’s noblemen and as princes among men. So universally true and deep-seated is this humane feeling among men, and so universally recognized and practised among them, that it has become a world-wide rule of moral conduct among men, brothers, friends and foes; and it says to one and all, You must exercise all reasonable efforts and means at hand to alleviate the pain and suffering and save the lives and limbs of those who have been stricken in your presence. For the violation of this rule of moral conduct there is no penalty attached save the condemnation of God and the scorn of all good men and women.
But seeing the wisdom, goodness and justice of this moral law, the law of the land laid its strong hand upon it, the same as it did upon many other good and useful customs of England, and breathed into it a living rule of legal conduct among men. It says unto all who employ labor that, because of this universally practised custom of men to furnish medical and surgical aid for those who are stricken in their presence, you must furnish the employee with such services when he is so badly injured that he is incapacitated from caring for himself.
This is but the application or extension of the common-law rule which requires the master to furnish his servant with a safe place in which to work, and safe instrumentalities with which to perform that labor.
That law grew out of the old customs and usages of the English people, of furnishing their servants with a safe place in which to work and safe instrumentalities with which to labor. So universally true was that custom that the law read into all contracts of labor an implied promise on the part of the master to furnish those safeguards to his servants. There is no statutory or written law upon the subject. It is simply what is called the unwritten or common law of England, which has been adopted by statutes in this and many other States of the Union.
So in like manner into the universal custom of employers furnishing his employees with medical aid when so badly injured that they could not care for themselves, the common law, as in the cases of the safety appliances before mentioned, breathed an implied agreement or duty on the part of the former to furnish the latter medical or surgical aid whenever he was so badly injured that he could not care for himself.
This law, like the one previously mentioned, has no statutory origin, but has ripened into a law from wise and humane usages and customs that are so old that the memory of man runneth not to the contrary, and will continue so long as the conduct of man is prompted and governed by love and humane sentiments.
As previously stated, I am firmly of the opinion that the petition stated a good cause of action against the defendant, and that the evidence was sufficient to make a case for the jury; and so believing, I think the action of the trial court in granting a new trial to the plaintiff for the first and second reasons assigned by counsel for defendant, was not erroneous, but proper.[117]
DEPUE _v._ FLATAU SUPREME COURT, MINNESOTA, MARCH 15, 1907. _Reported in 100 Minnesota Reports, 299._
## Action in the District Court for Watonwan County to recover $5000 for
personal injuries. The case was tried before Lorin Cray, J., who, at the conclusion of plaintiff’s testimony, dismissed the action. From an order denying a motion for a new trial, plaintiff appealed. Reversed.
BROWN, J. The facts in this somewhat unusual case are as follows: Plaintiff was a cattle buyer, and accustomed to drive through the country in the pursuit of his business, buying cattle, hides, and furs from the farmers. On the evening of January 23, 1905, about five or 5.30 o’clock, after having been out a day or two in the country, he called at the house of defendants, about seven miles from Madelia, where he resided. His object was to inspect some cattle which Flatau, Sr., had for sale, and if arrangements could be made to purchase the same. It was dark at the time of his arrival, but he inspected the cattle in the barn, and suggested to defendant that, being unable to determine their value by reason of the darkness, he was not prepared to make an offer for the cattle, and requested the privilege of remaining over night, to the end that a bargain might be made understandingly in the morning. His request was not granted. Plaintiff then bought some furs from other members of defendants’ family, and Flatau, Sr., invited him to remain for supper. Under this invitation plaintiff entered the house, paid for the furs, and was given supper with the family. After the evening meal, plaintiff and both defendants repaired to the sitting-room of the house, and plaintiff made preparation to depart for his home. His team had not been unhitched from the cutter, but was tied to a hitching post near the house. The testimony from this point leaves the facts in some doubt. Plaintiff testified that soon after reaching the sitting-room he was taken with a fainting spell and fell to the floor. He remembers very little of what occurred after that, though he does recall that, after fainting, he again requested permission to remain at defendants’ over night, and that his request was refused. Defendants both deny that this request was made, and testified, when called for cross-examination on the trial, that plaintiff put on his overshoes and buffalo coat unaided, and that, while adjusting a shawl about his neck, he stumbled against a
## partition between the dining-room and the sitting-room, but that he did
not fall to the floor. Defendant Flatau, Jr., assisted him in arranging his shawl, and the evidence tends to show that he conducted him from the house out of doors and assisted him into his cutter, adjusting the robes about him and attending to other details preparatory to starting the team on its journey. Though the evidence is somewhat in doubt as to the cause of plaintiff’s condition while in defendants’ home, it is clear that he was seriously ill and too weak to take care of himself. He was in this condition when Flatau, Jr., assisted him into the cutter. He was unable to hold the reins to guide his team, and young Flatau threw them over his shoulders and started the team towards home, going a short distance, as he testified, for the purpose of seeing that the horses took the right road to Madelia. Plaintiff was found early next morning by the roadside, about three quarters of a mile from defendants’ home, nearly frozen to death. He had been taken with another fainting spell soon after leaving defendants’ premises, and had fallen from his cutter, where he remained the entire night. He was discovered by a passing farmer, taken to his home, and revived. The result of his experience necessitated the amputation of several of his fingers, and he was otherwise physically injured and his health impaired. Plaintiff thereafter brought this action against defendants, father and son, on the theory that his injuries were occasioned solely by their negligent and wrongful conduct in refusing him accommodations for the night, and, knowing his weak physical condition, or at least having reasonable grounds for knowing it, by reason of which he was unable to care for himself, in sending him out unattended to make his way to Madelia the best he could. At the conclusion of plaintiff’s case, the trial court dismissed the action, on the ground that the evidence was insufficient to justify a recovery. Plaintiff appealed from an order denying a new trial.
Two questions are presented for consideration: (1) Whether, under the facts stated, defendants owed any duty to plaintiff which they negligently violated; and (2) whether the evidence is sufficient to take the case to the jury upon the question whether defendants knew, or under the circumstances disclosed ought to have known, of his weak physical condition, and that it would endanger his life to send him home unattended.
The case is an unusual one on its facts, and “all-four” precedents are difficult to find in the books. In fact, after considerable research, we have found no case whose facts are identical with those at bar. It is insisted by defendants that they owed plaintiff no duty to entertain him during the night in question, and were not guilty of any negligent misconduct in refusing him accommodations, or in sending him home under the circumstances disclosed. Reliance is had for support of this contention upon the general rule as stated in note to Union Pacific _v._ Cappier, [66 Kan. 649, 72 Pac. 281] 69 L. R. A. 513, where it is said: “Those duties which are dictated merely by good morals or by humane considerations are not within the domain of the law. Feelings of kindliness and sympathy may move the Good Samaritan to minister to the needs of the sick and wounded at the roadside, but the law imposes no such obligation; and suffering humanity has no legal complaint against those who pass by on the other side.... Unless, therefore, the relation existing between the sick, helpless, or injured and those who witness their distress is such that the law imposes the duty of providing the necessary relief, there is neither obligation to minister on the one hand, nor cause for legal complaint on the other.” This is no doubt a correct statement of the general rule applicable to the Good Samaritan, but it by no means controls a case like that at bar.
The facts of this case bring it within the more comprehensive principle that whenever a person is placed in such a position with regard to another that it is obvious that, if he does not use due care in his own conduct, he will cause injury to that person, the duty at once arises to exercise care commensurate with the situation in which he thus finds himself, and with which he is confronted, to avoid such danger; and a negligent failure to perform the duty renders him liable for the consequences of his neglect.
This principle applies to varied situations arising from non-contract relations. It protects the trespasser from wanton or wilful injury. Its extends to the licensee, and requires the exercise of reasonable care to avoid an unnecessary injury to him. It imposes upon the owner of premises, which he expressly or impliedly invites persons to visit, whether for the transaction of business or otherwise, the obligation to keep the same in reasonably safe condition for use, though it does not embrace those sentimental or social duties often prompting human action. 21 Am. & Eng. Enc. (2d ed.) 471; Barrows, Neg. 3. Those entering the premises of another by invitation are entitled to a higher degree of care than those who are present by mere sufferance. Barrows, Neg. 304. The rule stated is supported by a long list of authorities both in England and this country, and is expressed in the familiar maxim, “_Sic utere tuo_,” etc. They will be found collected in the works above cited, and also in 1 Thompson, Neg. (2d ed.), § 694. It is thus stated in Heaven _v._ Pender, L. R. 11 Q. B. Div. 503: “The proposition which these recognized cases suggest, and which is, therefore, to be deduced from them, is that, whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” It applies with greater strictness to conduct towards persons under disability, and imposes the obligation as a matter of law, not mere sentiment, at least to refrain from any affirmative action that might result in injury to them. A valuable note to Union Pacific _v._ Cappier, 69 L. R. A. 513, discusses at length the character of the duty and obligation of those coming into relation with sick and disabled persons, and numerous analogous cases are collected and analyzed.
In the case at bar defendants were under no contract obligation to minister to plaintiff in his distress; but humanity demanded that they do so, if they understood and appreciated his condition. And, though those acts which humanity demands are not always legal obligations, the rule to which we have adverted applied to the relation existing between these parties on this occasion and protected plaintiff from acts at their hands that would expose him to personal harm. He was not a trespasser upon their premises, but, on the contrary, was there by the express invitation of Flatau, Sr. He was taken suddenly ill while their guest, and the law, as well as humanity, required that he be not exposed in his helpless condition to the merciless elements.
The case, in its substantial facts, is not unlike that of Cincinnati _v._ Marrs’ Adm’x, 27 Ky. Law, 388, 85 S. W. 188, 70 L. R. A. 291. In that case it appears that one Marrs was found asleep in the yards of the railway company in an intoxicated condition. The yard employees discovered him, aroused him from his stupor, and ordered him off the tracks. They knew that he was intoxicated, and that he had left a train recently arrived at the station, and he appeared to them dazed and lost. About forty minutes later, while the yard employees were engaged in switching, they ran over him and killed him. He had again fallen asleep on one of the tracks. The court held the railway company liable; that, under the circumstances disclosed, it was the duty of the yard employees to see that Marrs was safely out of the yards, or, in default of that, to exercise ordinary care to avoid injuring him; and that it was reasonable to require them to anticipate his probable continued presence in the yards. The case at bar is much stronger, for here plaintiff was not intoxicated, nor a trespasser, but, on the contrary, was in defendants’ house as their guest, and was there taken suddenly ill in their presence, and, if his physical condition was known and appreciated, they must have known that to compel him to leave their home unattended would expose him to serious danger.
We understand from the record that the learned trial court held in harmony with the view of the law here expressed, but dismissed the
## action for the reason, as stated in the memorandum denying a new trial,
that there was no evidence that either of the defendants knew, or in the exercise of ordinary care should have known, plaintiff’s physical condition, or that allowing him to proceed on his journey would expose him to danger. Of course, to make the act of defendants a violation of their duty in the premises, it should appear that they knew and appreciated his serious condition. The evidence on this feature of the case is not so clear as might be desired, but a majority of the court are of opinion that it is sufficient to charge both defendants with knowledge of plaintiff’s condition—at least, that the question should have been submitted to the jury.
Defendant Flatau, Sr., testified that he was in the room at all times while plaintiff was in the house and observed his demeanor, and, though he denied that plaintiff fell to the floor in a faint or otherwise, yet the fact that plaintiff was seriously ill cannot be questioned. Flatau, Jr., conducted him to his cutter, assisted him in, observed that he was incapable of holding the reins to guide his team, and for that reason threw them over his shoulders. If defendants knew and appreciated his condition, their act in sending him out to make his way to Madelia the best he could was wrongful and rendered them liable in damages. We do not wish to be understood as holding that defendants were under absolute duty to entertain plaintiff during the night. Whether they could conveniently do so does not appear. What they should or could have done in the premises can only be determined from a full view of the evidence disclosing their situation, and their facilities for communicating his condition to his friends, or near neighbors, if any there were. All these facts will enable the jury to determine whether, within the rules of negligence applicable to the case, defendants neglected any duty they owed plaintiff.
_Order reversed._[118]
DUTCH PENAL CODE, ART. 450. One who, witnessing the danger of death with which another is suddenly threatened, neglects to give or furnish him such assistance as he can give or procure without reasonable fear of danger to himself or to others, is to be punished, if the death of the person in distress follows, by a detention of three months at most and an amende of three hundred florins at most.
GERMAN CIVIL CODE, SECTION 826. One who wilfully brings about damage to another in a manner running counter to good morals is bound to make reparation to the other for the damage.
STAMMLER, LEHRE VON DEM RICHTIGEN RECHTE, 489–490. “I am walking along the bank of a river,” says Liszt in his stimulating discussion of this subject, “and I see a man fall in the water and struggle with the waves. I am able to rescue him without any peril to myself; I neglect to do so although other help is not at hand and I foresee that he must drown. In my opinion, liability under section 826 cannot be denied.” [Liszt, Die Deliktsobligationen des B. G. B., 72.] Surely not.
PLANCK, BÜRGERLICHES GESETZBUCH (3d ed.), II, 995 (§ 826, note _e_). The duty to make reparation for damage under section 826 may also be grounded upon an omission. But it is presupposed that the act which was omitted must be regarded, under the circumstances of the case, as commanded by good morals and that the omission took place with the purpose of bringing about injury to the other. If one holds fast to this, the consequences which result from the foregoing principle are not as doubtful as Liszt (p. 72) seems to assume.
BENTHAM, COMPLETE WORKS (Bowring’s ed.) I, 164.
There is simple corporal injury, when, without lawful cause, an individual, seeing another in danger, abstains from helping him, and the evil happens in consequence.
Explanations:—_Abstains from helping him_.
Every man is bound to assist those who have need of assistance, if he can do it without exposing himself to sensible inconvenience. This obligation is stronger in proportion as the danger is the greater for the one, and the trouble of preserving him the less for the other. Such would be the case of a man sleeping near the fire, and an individual seeing the clothes of the first catch fire, and doing nothing towards extinguishing them: the crime would be greater if he refrained from acting not simply from idleness, but from malice or some pecuniary interest.
BENTHAM, PRINCIPLES OF MORALS AND LEGISLATION, chap. xix, sec. 1, Par. xix (Clarendon Press reprint, pp. 322–323).
As to the rules of beneficence, these, as far as concerns matters of detail, must necessarily be abandoned in great measure to the jurisdiction of private ethics....
The limits of the law on this head seem, however, to be capable of being extended a good deal farther than they seem ever to have been extended hitherto. In particular, in cases where the person is in danger, why should it not be made the duty of every man to save another from mischief, when it can be done without prejudicing himself, as well as to abstain from bringing it on him. This accordingly is the idea pursued in the body of the work.[119]
BENTHAM, THEORY OF LEGISLATION, transl. by Hildreth (5th ed.), pp. 65–66.
As to beneficence, some distinctions are necessary. The law may be extended to general objects, such as the care of the poor; but, for details, it is necessary to depend upon private morality....
However, instead of having done too much in this respect, legislators have not done enough. They ought to erect into an offence the refusal or the omission of a service of humanity when it would be easy to render it, and when some distinct ill clearly results from the refusal; such, for example, as abandoning a wounded man in a solitary road without seeking any assistance for him; not giving information to a man who is negligently meddling with poisons; not reaching out the hand to one who has fallen into a ditch from which he cannot extricate himself; in these, and other similar cases, could any fault be found with a punishment, exposing the delinquent to a certain degree of shame, or subjecting him to a pecuniary responsibility for the evil which he might have prevented?
LIVINGSTON, DRAFT CODE OF CRIMES AND PUNISHMENTS FOR THE STATE OF LOUISIANA. Livingston, Complete Works on Criminal Jurisprudence, II, 126–127.
Article 484. Homicide by omission only, is committed by voluntarily permitting another to do an act that must, in the natural course of things, cause his death, without apprising him of his danger, if the act be involuntary, or endeavoring to prevent it if it be voluntary. He shall be presumed to have permitted it voluntarily who omits the necessary means of preventing the death, when he knows the danger, and can cause it to be avoided, without danger of personal injury or pecuniary loss. This rule may be illustrated by the examples put in the last preceding article: if the blind man is seen walking to the precipice by one who knows the danger, can easily apprise him of it, but does not; or if one who knows that a glass contains poison, sees him about to drink it, either by mistake or with intent to destroy himself, and makes no attempt to prevent him: in these cases the omission amounts to homicide.[120]
MACAULAY, NOTES TO DRAFT OF INDIAN PENAL CODE. Penal Code Prepared by the Indian Law Commissioners.[121]