Chapter xviii

[page 76]. Of Offences Affecting the Human Body. Of Offences Affecting Life.

294. Whoever does any act or omits what he is legally bound to do, with the intention of thereby causing, or with the knowledge that he is likely thereby to cause, the death of any person, and does by such act or omission cause the death of any person, is said to commit the offence of “voluntary culpable homicide.”

NOTE M.[122] _On Offences Against the Body._ Notes to Draft of Penal Code, 53–56; Macaulay’s Complete Works (English ed., 1875), vol. VII, pp. 493–497; Morgan and McPherson, Indian Penal Code, 225, 226, notes.

The first class of offences against the body consists of those offences which affect human life; and highest in this first class stand those offences which fall under the definition of voluntary culpable homicide.

This important part of the law appears to us to require fuller explanation than almost any other.

The first point to which we wish to call the attention of his Lordship in Council is the expression “omits what he is legally bound to do,” in the definition of voluntary culpable homicide. These words, or other words tantamount in effect, frequently recur in the Code. We think this the most convenient place for explaining the reason which has led us so often to employ them. For if that reason shall appear to be sufficient in cases in which human life is concerned, it will _a fortiori_ be sufficient in other cases.

Early in the progress of the Code it became necessary for us to consider the following question: When acts are made punishable on the ground that those acts produce, or are intended to produce, or are known to be likely to produce certain evil effects, to what extent ought omissions which produce, which are intended to produce, or which are known to be likely to produce the same evil effects to be made punishable?

Two things we take to be evident: first, that some of these omissions ought to be punished in exactly the same manner in which acts are punished: secondly, that all these omissions ought not to be punished. It will hardly be disputed that a jailer who voluntarily causes the death of a prisoner by omitting to supply that prisoner with food, or a nurse who voluntarily causes the death of an infant intrusted to her care by omitting to take it out of a tub of water into which it has fallen, ought to be treated as guilty of murder. On the other hand, it will hardly be maintained that a man should be punished as a murderer because he omitted to relieve a beggar, even though there might be the clearest proof that the death of the beggar was the result of the omission, and that the man who omitted to give the alms knew that the death of the beggar was likely to be the effect of the omission. It will hardly be maintained that a surgeon ought to be treated as a murderer for refusing to go from Calcutta to Meerut to perform an operation, although it should be absolutely certain that this surgeon was the only person in India who could perform it, and that if it were not performed the person who required it would die. It is difficult to say whether a Penal Code which should put no omissions on the same footing with acts, or a Penal Code which should put all omissions on the same footing with acts would produce consequences more absurd and revolting. There is no country in which either of these principles is adopted. Indeed, it is hard to conceive how, if either were adopted, society could be held together.

It is plain, therefore, that a middle course must be taken. But it is not easy to determine what that middle course ought to be. The absurdity of the two extremes is obvious. But there are innumerable intermediate points; and wherever the line of demarcation may be drawn it will, we fear, include some cases which we might wish to exempt, and will exempt some which we might wish to include.

Mr. Livingston’s Code provides that a person shall be considered as guilty of homicide who omits to save life, which he could save “without personal danger or pecuniary loss.” This rule appears to us to be open to serious objection. There may be extreme inconvenience without the smallest personal danger, or the smallest risk of pecuniary loss; as in the case which we lately put of a surgeon summoned from Calcutta to Meerut to perform an operation. He may be offered such a fee that he would be a gainer by going. He may have no ground to apprehend that he should run any greater personal risk by journeying to the Upper Provinces than by continuing to reside in Bengal. But he is about to proceed to Europe immediately, or he expects some members of his family by the next ship, and wishes to be at the presidency to receive them. He, therefore, refuses to go. Surely, he ought not, for so refusing, to be treated as a murderer. It would be somewhat inconsistent to punish one man for not staying three months in India to save the life of another, and to leave wholly unpunished a man who, enjoying ample wealth, should refuse to disburse an anna to save the life of another. Again, it appears to us that it may be fit to punish a person as a murderer for causing death by omitting an act which cannot be performed without personal danger or pecuniary loss. A parent may be unable to procure food for an infant without money. Yet the parent, if he has the means, is bound to furnish the infant with food, and if by omitting to do so he voluntarily causes its death, he may with propriety be treated as a murderer. A nurse hired to attend a person suffering from an infectious disease cannot perform her duty without running some risk of infection. Yet if she deserts the sick person, and thus voluntarily causes his death, we should be disposed to treat her as a murderer.

We pronounce with confidence, therefore, that the line ought not to be drawn where Mr. Livingston has drawn it. But it is with great diffidence that we bring forward our own proposition. It is open to objections: cases may be put in which it will operate too severely, and cases in which it will operate too leniently; but we are unable to devise a better.

What we propose is this, that where acts are made punishable on the ground that they have caused, or have been intended to cause, or have been known to be likely to cause a certain evil effect, omissions which have caused, which have been intended to cause, or which have been known to be likely to cause the same effect shall be punishable in the same manner; provided that such omissions were, on other grounds, illegal. An omission is illegal (see clause 28) if it be an offence, if it be a breach of some direction of law, or if it be such a wrong as would be a good ground for a civil action.

We cannot defend this rule better than by giving a few illustrations of the way in which it will operate. A omits to give Z food, and by that omission voluntarily causes Z’s death. Is this murder? Under our rule it is murder if A was Z’s jailer, directed by the law to furnish Z with food. It is murder if Z was the infant child of A, and had therefore a legal right to sustenance, which right a civil court would enforce against A. It is murder if Z was a bedridden invalid, and A a nurse hired to feed Z. It is murder if A was detaining Z in unlawful confinement, and had thus contracted (see clause 338) a legal obligation to furnish Z, during the continuance of the confinement, with necessaries. It is not murder if Z is a beggar who has no other claim on A than that of humanity.

A omits to tell Z that a river is swollen so high that Z cannot safely attempt to ford it, and by this omission voluntarily causes Z’s death. This is murder if A is a peon stationed by authority to warn travellers from attempting to ford the river. It is murder if A is a guide who had contracted to conduct Z. It is not murder if A is a person on whom Z has no other claim than that of humanity.

A savage dog fastens on Z; A omits to call off the dog, knowing that if the dog be not called off it is likely that Z will be killed. Z is killed. This is murder in A, if the dog belonged to A, inasmuch as his omission to take proper order with the dog is illegal (clause 273). But if A be a mere passer-by it is not murder.

We are sensible that in some of the cases which we have put, our rule may appear too lenient. But we do not think that it can be made more severe, without disturbing the whole order of society. It is true that the man who, having abundance of wealth, suffers a fellow creature to die of hunger at his feet, is a bad man,—a worse man, probably, than many of those for whom we have provided very severe punishment. But we are unable to see where, if we make such a man legally punishable, we can draw the line. If the rich man who refuses to save a beggar’s life at the cost of a little copper is a murderer, is the poor man just one degree above beggary also to be a murderer if he omits to invite the beggar to partake his hard-earned rice? Again, if the rich man is a murderer for refusing to save the beggar’s life at the cost of a little copper, is he also to be a murderer if he refuses to save the beggar’s life at the cost of a thousand rupees? Suppose A to be fully convinced that nothing can save Z’s life, unless Z leave Bengal and reside a year at the Cape, is A, however wealthy he may be, to be punished as a murderer because he will not, at his own expense, send Z to the Cape? Surely not. Yet it will be difficult to say on what principle we can punish A for not spending an anna to save Z’s life, and leave him unpunished for not spending a thousand rupees to save Z’s life. The distinction between a legal and an illegal omission is perfectly plain and intelligible. But the distinction between a large and a small sum of money is very far from being so; not to say that a sum which is small to one man is large to another.

The same argument holds good in the case of the ford. It is true that none but a very depraved man would suffer another to be drowned when he might prevent it by a word. But if we punish such a man, where are we to stop? How much exertion are we to require? Is a person to be a murderer if he does not go fifty yards through the sun of Bengal at noon in May in order to caution a traveller against a swollen river? Is he to be a murderer if he does not go a hundred yards?—if he does not go a mile?—if he does not go ten? What is the precise amount of trouble and inconvenience which he is to endure? The distinction between the guide who is bound to conduct the traveller as safely as he can, and a mere stranger, is a clear distinction. But the distinction between a stranger who will not give a halloo to save a man’s life, and a stranger who will not run a mile to save a man’s life, is very far from being equally clear.

It is, indeed, most highly desirable that men should not merely abstain from doing harm to their neighbours, but should render active services to their neighbours. In general, however, the penal law must content itself with keeping men from doing positive harm, and must leave to public opinion, and to the teachers of morality and religion, the office of furnishing men with motives for doing positive good. It is evident that to attempt to punish men by law for not rendering to others all the service which it is their duty to render to others would be preposterous. We must grant impunity to the vast majority of those omissions which a benevolent morality would pronounce reprehensible, and must content ourselves with punishing such omissions only when they are distinguished from the rest by some circumstance which marks them out as peculiarly fit objects of penal legislation. Now, no circumstance appears to us so well fitted to be the mark as the circumstance which we have selected. It will generally be found in the most atrocious cases of omission; it will scarcely ever be found in a venial case of omission; and it is more clear and certain than any other mark that has occurred to us. That there are objections to the line which we propose to draw, we have admitted. But there are objections to every line which can be drawn, and some line must be drawn.

SECTION VI LIABILITY OF OCCUPIERS OF PREMISES

MAYNARD _v._ BOSTON AND MAINE RAILROAD SUPREME JUDICIAL COURT, MASSACHUSETTS, SEPTEMBER 4, 1874. _Reported in 115 Massachusetts Reports, 458._

Tort for the killing of a horse on a railroad by a locomotive engine.

Upon the trial, the plaintiff admitted that the horse must be considered as trespassing upon the railroad, but contended and offered evidence tending to show that by an exercise of proper care the injury to the horse might have been avoided. The defendants offered evidence to control this, and tending to show that they did all they reasonably could do to stop their train before striking the horse. There was no evidence of any wanton misconduct on their part.

The counsel for the defendants contended and asked the presiding judge to rule, that the defendants would not be liable, unless the plaintiff proved a reckless and wanton misconduct of their employees in the management of the train when the horse was killed. The presiding judge declined so to rule; but did rule that though the horse was trespassing upon the defendants’ land at the time, the managers of the train could not carelessly run over him, but were bound to use reasonable care to avoid injuring him, and that if the jury found that by the exercise of reasonable care they might have avoided injuring the horse, they would be liable. The jury found for the plaintiff, and the defendants alleged exceptions.[123]

GRAY, C. J. If the horse had been rightfully upon the defendants’ land, it would have been their duty to exercise reasonable care to avoid injuring the horse. But it being admitted by the plaintiff that his horse was trespassing upon the railroad, they did not owe him that duty, and were not liable to him for anything short of a reckless and wanton misconduct of those employed in the management of their train. The defendants were therefore entitled to the instruction which they requested. Tonawanda Railroad _v._ Munger, 5 Denio, 255; S. C. 4 Comst. 349; Vandegrift _v._ Rediker, 2 Zab. 185; Railroad Co. _v._ Skinner, 19 Penn. St. 298; Tower _v._ Providence & Worcester Railroad, 2 R. I. 404; Cincinnati, Hamilton & Dayton Railroad _v._ Waterson, 4 Ohio St. 424; Louisville & Frankfort Railroad _v._ Ballard, 2 Met. (Ky.) 177.

The instruction given to the jury held the defendants to the same obligation to the plaintiff as if his horse had been rightfully on their land; and made their paramount duty to the public of running the train with proper speed and safety, and their use of the land set apart and fitted for the performance of that duty, subordinate to the care of private interests in property which was upon their track without right.

Some passages in the opinion in Eames _v._ Salem & Lowell Railroad, 98 Mass. 560, 563, were relied on by the plaintiff’s counsel at the argument, and apparently formed the basis of the rulings of the learned judge in the Court below. But in that case there was no evidence of any negligence or misconduct in the management of the train, and an exact definition of the defendants’ liability, by reason of such negligence or misconduct, was not required. In the present case such a definition was requested by the defendants in appropriate terms, and was refused, and for that refusal their

_Exceptions must be sustained._[124]

HERRICK _v._ WIXOM SUPREME COURT, MICHIGAN, SEPTEMBER 27, 1899. _Reported in 121 Michigan Reports, 384._

Trespass on the Case for personal injuries.

Defendant was the possessor and manager of a tent show or circus. On the afternoon of an exhibition plaintiff went inside the tent and took a seat. There was a conflict of testimony as to whether plaintiff was invited into the tent by an authorized agent of defendant, or whether he entered without any invitation or other justification. A feature of the entertainment consisted in the ignition and explosion of a giant firecracker, attached to a pipe set in an upright position in one of the show rings. Plaintiff sat thirty or forty feet from the place where the cracker was exploded. At the explosion, part of the firecracker flew and struck plaintiff in the eye, whereby he lost the sight of his eye.

The judge left to the jury the question whether it was negligent in defendant to explode this firecracker in the inside of the tent and in the presence of the audience.

Then he gave, among others, the following instruction:—

“Now you must further find, in order that the plaintiff recover, that the plaintiff was in the tent, where he was injured, by the invitation of some person having authority to allow him to go in there. If he was a mere trespasser, who forced his way in, then the defendant owed him no duty that would enable him to recover under the declaration and proofs in this case.”...

Verdict of no cause of action. Judgment for defendant. Plaintiff brought error.[125]

MONTGOMERY, J. [After stating the case.] We think this instruction faulty, in so far as it was intended to preclude recovery in any event if the plaintiff was found to be a trespasser. It is true that a trespasser who suffers an injury because of a dangerous condition of premises is without remedy. But, where a trespasser is discovered upon the premises by the owner or occupant, he is not beyond the pale of the law, and any negligence resulting in injury will render the person guilty of negligence liable to respond in damages. Beach, Contrib. Neg. § 50; Whart. Neg. § 346; Marble _v._ Ross, 124 Mass. 44; Houston, etc., R. Co. _v._ Sympkins, 54 Tex. 615 (38 Am. Rep. 632); Brown _v._ Lynn, 31 Pa. St. 510 (72 Am. Dec. 768); Needham _v._ Railroad Co., 37 Cal. 409; Davies _v._ Mann, 10 Mees. & W. 546; 1 Shear. & R. Neg. § 99. In this case the negligent act of the defendant’s servant was committed after the audience was made up. The presence of plaintiff was known, and the danger to him from a negligent act was also known. The question of whether a dangerous experiment should be attempted in his presence, or whether an experiment should be conducted with due care and regard to his safety, cannot be made to depend upon whether he had forced himself into the tent. Every instinct of humanity revolts at such a suggestion.

For this error the judgment will be reversed, and a new trial ordered.[126]

CINCINNATI & ZANESVILLE R. CO. _v._ SMITH SUPREME COURT, OHIO, DECEMBER TERM, 1871. _Reported in 22 Ohio State Reports, 227._

Error to the Court of Common Pleas of Fayette County, reserved in the District Court.[127]

The plaintiff below, Richard Smith, sued the defendant below, the Cincinnati & Zanesville Railroad Company, to recover the value of two horses alleged to have been killed through the negligence of the servants of the defendant in operating one of its trains. The inclosure of the plaintiff adjoined the railroad of the defendant; and from this inclosure, on the night on which the horses were killed, they escaped on to the railroad.

The Court, among other things, charged the jury as follows:—

The defendant’s servants in this case were not bound to use extraordinary care or extraordinary means to save the plaintiff’s horses. But they were bound to use what, in that peculiar business, is ordinary care and diligence; and if the loss of the horses was the result of a want of that ordinary care and diligence, the defendant is liable.

The defendant had the right to the free and unobstructed use of its railroad track. And the paramount duty of the employees is the protection of the passengers and property in the train, and the train itself.

But this being their paramount duty, they are bound to use ordinary care and diligence, so as not unnecessarily to injure the property of others.

Under the circumstances of the case, could and would reasonably prudent men, skilled in that kind of business, keeping in view as their paramount duty the protection and safety of the train, its passengers, and the property on and about it intrusted to their care, in the exercise of ordinary care have stopped the train and saved the horses? If so, and the defendant’s servants did not so act, the defendant is liable in this case; otherwise the defendant is not liable.

In considering the paramount duty of the employees in the proper management of the train for the safety of passengers and property of its train, you have a right to determine whether they have other duties to perform. It is claimed the engineer had other duties than watching the track to perform, which were necessary for the safety of the passengers and property of the train,—such as gauging his steam, watching time-table, regulating his supply of water, examining his machinery, watching for the station-signal, etc. If such were the case, he had a lawful right to perform these duties, and was not bound to neglect them to save the plaintiff’s horses, nor bound to watch the track while performing these duties. They were only bound, under the circumstances of the case, to use ordinary care and diligence to save the horses,—the safety of the passengers and property of the train being their paramount duty; and if the jury find from the evidence that the persons in charge of the engine were attending to the duties of the train approaching the station at the time of the accident, these duties were paramount to watching the track for trespassing animals; and if the horses were not, on that account, discovered in time to save them by using ordinary means to stop the train, the defendant is not liable.

It is claimed by the defendant’s counsel that off the crossings of the railroad the servants of the railroad company have a right to presume that there are no trespassers on the roadway; that they are not bound to look out for trespassers except for the safety of passengers or property in charge. It is also claimed that inasmuch as the road at the place where the plaintiff’s horses got on the track and were killed was fenced, on that account the defendant’s servants in charge of the train were not bound to look out for trespassing stock. Upon this question I only can charge you this: That if the railroad was fenced at the place where the horses got on and were killed, and this was known to the defendant’s employees, you have a right to look to that circumstance as reflecting upon and in determining whether the employees exercised ordinary care in the management of the train. But if they might, in the exercise of ordinary care, have discovered the animals, although they were trespassers on the roadway, other than at a crossing, in time to have prevented their destruction, it was their duty to do so; and if from such want of ordinary care they were not discovered in time to prevent their destruction, the defendant is liable for their loss to the plaintiff.[128]

WHITE, J. The whole charge is set out in the bill of exceptions. Considering its several parts in connection, and giving to the whole a fair construction, we deem it necessary only to notice two particulars in which it is objected to.

These are: 1. Whether the fact that the horses were trespassing on the track excused the servants of the defendant from the exercise of ordinary care; and, 2. Whether that fact, and the additional one that the road was fenced, excused the engineer, as respects the owner of stray animals, from looking ahead to see whether such animals were on the track or not.

In regard to the first of these particulars, it is contended on behalf of the railroad company that, as the horses were trespassing on the railroad, the company was exempt from using ordinary care to save them, and that it was only liable for what is called gross negligence.

The Court instructed the jury that the defendant had the right to the free and unobstructed use of its railroad track, and that the paramount duty of its employees was the protection of the passengers and property in the train, and the train itself. But this being their paramount duty, they were bound to use ordinary care and diligence so as not unnecessarily to injure the property of others.

We think the charge stated the law correctly. We see no good reason, in principle, why a party, so far as may be consistent with the full enjoyment of his own rights, ought not to use ordinary care so as not unnecessarily to injure the property of others.

It is true, the rule contended for by the counsel of the plaintiff in error is sustained by a number of authorities. But the later and better considered cases are to the contrary. Illinois Central R. R. Co. _v._ Middlesworth, 46 Ill. 494; Bemis _v._ Conn., &c. R. R., 42 Vt. 375; Isbell _v._ N. Y. R. R. Co., 27 Conn. 393; Redfield’s American Railway Cases, 355, 356.

The rule contended for has never been adopted in this State. It is, moreover, as respects railroad companies, inconsistent with our statute law on the subject. S. & C. 331.

The facts in the case of the C. H. & D. R. R. Co. _v._ Waterson & Kirk, 4 Ohio St. 424, cited and relied upon by the counsel of the plaintiff in error, were different from those in the case now before us, and we do not regard the rule there laid down as to the liability of the company in that case as applicable to this.

From what has been said of the charge in the first particular named, it would seem to follow that it is unobjectionable as respects the second. If it was the duty of the servants of the company, so far as was consistent with their other and paramount duties, to use ordinary care to avoid injuring animals on the track, they were, of course, bound to adopt the ordinary precautions to discover danger, as well as to avoid its consequences after it became known.

The fact that the road was fenced at the place of collision with the horses, was a circumstance to be considered in connection with the other circumstances of the case in determining whether the engineer was guilty of negligence in not looking ahead and discovering the danger in time to avoid it. The fact that the road was fenced rendered it less probable that wandering animals would be on the track; but it cannot be said that the engineer, as a matter of law, by reason of the fences, was wholly excused from keeping a lookout ahead of the train.

If the servants of the company in charge of the train, having due regard to their duties for the safety of the persons and property in their charge, could, by the exercise of ordinary care, have seen and saved the horses, we think they were bound to have done so. Bemis _v._ Conn., &c. R. R., _supra_, 381; Louis. & Nash. R. R. Co. _v._ Wainscott, 3 Bush, 149.[129]

_Judgment affirmed._

SHEEHAN _v._ ST. PAUL & DULUTH R. CO. UNITED STATES CIRCUIT COURT OF APPEALS, SEVENTH CIRCUIT, OCTOBER 16, 1896. _Reported in 46 U. S. Appeals, 498._

SEAMAN, J.[130] The plaintiff at the time of his injury was neither in the relation of passenger nor of one in a public crossing or place in which the public were licensed to travel, but upon the undisputed facts was a mere intruder on the tracks of the defendant, technically a trespasser; and this record excludes any of the elements of implied license or invitation to such use which have given rise to much discussion and diversity of views in the courts. Therefore the inquiry is here squarely presented, What is the duty which a railway company owes to a trespasser on its tracks, and how and when does the duty arise? The decisions upon this subject uniformly recognize that the trespasser cannot be treated as an outlaw; and at the least that, if wantonly injured in the operation of the railroad, the company is answerable in damages. Clearly, then, an obligation is placed upon the company to exercise some degree of care when the danger becomes apparent. Is it, however, bound to foresee or assume that rational beings will thus enter as trespassers in a place of danger, and to exercise in the running of its trains the constant vigilance in view of that probability which is imposed for public crossings? There are cases which would seem to hold this strict requirement (see note, 1 Thompson on Negligence (1880), 448; East Tennessee and Georgia Railroad Co. _v._ St. John, 5 Sneed, 524); but by the great preponderance of authority, in this country and in England, the more reasonable doctrine is pronounced, in effect, as follows: That the railroad company has the right to a free track in such places; that it is not bound to any act or service in anticipation of trespassers thereon; and that the trespasser who ventures to enter upon a track for any purpose of his own assumes all risks of the conditions which may be found there, including the operation of engines and cars. Wright _v._ Boston and Maine Railroad, 129 Mass. 440; Philadelphia and Reading Railroad Company _v._ Hummell, 44 Penn. St. 375. The decision by this court, in Cleveland, Cincinnati, Chicago and St. Louis Railway Company _v._ Philips’ Administrator (1), 24 U. S. Appeals, 489, adopts the view held in this line of cases, citing the authorities of which repetition here is unnecessary. The same doctrine prevails in Minnesota, where the injury in question arose. Johnson _v._ Truesdale, 46 Minnesota, 345; Studley _v._ St. Paul & Duluth R. Co., 48 Minnesota, 249. In the latter case it was held that there could be no recovery “unless the engineer saw the girl in time to avoid the accident, and then was guilty of such gross negligence in not trying to avoid it as to evince a reckless disregard of human life;” and the opinion gives this further exposition of the rule: “The defendant’s engineer was under no obligation to anticipate a trespasser, or to look out for persons walking upon the track; but, upon discovering plaintiff’s intestate across the cattle-guard, as he claims she was when he noticed that she was in danger, it became the engineer’s duty to use proper care to avoid running her down. If he failed to exercise proper care, he would necessarily be grossly negligent and evince a reckless disregard of human life.” So in Wisconsin, in Anderson _v._ Chicago, St. Paul, Minneapolis & Omaha Railway Company, 87 Wisconsin, 195, 204, it is said: “The use of a railroad is exclusively for its owners or those

## acting under its authority, and the company is not bound to the exercise

of any active duty of care or diligence towards mere trespassers upon its track, to keep a lookout to discover or protect them from injury, except that, when discovered in a position of danger or peril, it is its duty to use all reasonable and proper effort to save and protect them from the probable consequences of their indiscretion or negligence.”

The well-established and just rule which holds the railroad company to the exercise of constant and strict care against injury through its means is applicable only to the relation on which it is founded, of an existing duty or obligation. This active or positive duty arises in favor of the public at a street crossing or other place at which it is presumable that persons or teams may be met. It is not material, so far as concerns this inquiry, whether the place is one for which a lawful right of passage exists, as it is the fact of notice to the company arising out of its existence and the probability of its use which imposes the positive duty to exercise care; the requirement of an extreme degree of care being superadded because of the hazards which attend the operations of the company. The case of a trespasser on the track in a place not open to travel is clearly distinguishable in the absence of this notice to the company. There is no constructive notice upon which to base the obligation of constant lookout for his presence there, and no actual notice up to the moment the trainmen have discovered the fact of his peril. As that peril comes wholly from his unauthorized act and temerity, the risk and all positive duty of care for his safety rest with the trespasser. The obligation of the company and its operatives is not then preëxisting, but arises at the moment of discovery, and is negative in its nature,—a duty which is common to human conduct to make all reasonable effort to avert injury to others from means which can be controlled.

This is the issue presented here. It excludes all inquiry respecting the character of the roadbed, cattle-guard, locomotive, brake appliances or other means of operation, or of the speed or manner of running the train up to the moment of notice, because no breach of positive duty is involved. It is confined to the evidence relating to the discovery by the engineer and fireman of the plaintiff’s peril and to the efforts then made to avert the injury; and out of that to ascertain whether, in any view which may justly be taken, it is shown that these men or the engineer in disregard of the duty which then confronted them neglected to employ with reasonable promptness the means at hand for stopping the train.[131]

BRETT, M. R., IN HEAVEN _v._ PENDER (1883) _11 Queen’s Bench Division, 503, 506, 507._

BRETT, M. R.... The action is in form and substance an action for negligence. That the stage was, through want of attention of the defendant’s servants, supplied in a state unsafe for use is not denied. But want of attention amounting to a want of ordinary care is not a good cause of action, although injury ensue from such want, unless the person charged with such want of ordinary care had a duty to the person complaining to use ordinary care in respect of the matter called in question. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property. The question in this case is whether the defendant owed such a duty to the plaintiff.

MITCHELL, J., IN AKERS _v._ CHICAGO, &c. R. CO. (1894) _58 Minnesota, 540, 544._

MITCHELL, J. Actionable negligence is the failure to discharge a legal duty to the person injured. If there is no duty, there is no negligence. Even if a defendant owes a duty to some one else, but does not owe it to the person injured, no action will lie. The duty must be due to the person injured. These principles are elementary, and are equally applicable, whether the duty is imposed by positive statute or is founded on general common-law principles.[132]

LARY _v._ CLEVELAND R. CO. SUPREME COURT, INDIANA, NOVEMBER TERM, 1881. _Reported in 78 Indiana Reports, 323._

Lary sued the railroad company for damage alleged to have been sustained by him, through the negligent failure of the company to repair a building standing on its grounds, and formerly used by it as a freight house. Answer, a general denial. Upon the trial, the plaintiff introduced his evidence; the defendant demurred to it, and the plaintiff joined in demurrer. The Court sustained the demurrer, and the plaintiff excepted.

The facts which the plaintiff’s evidence tended to prove are substantially as follows:—

The railroad company owned half an acre of land between the railroad track and a highway. On this land was a building erected several years before for a freight house. It was no longer used as the general freight house, though still used for storing the company’s wood. A part of the roof of the building was off, and had been so for some months. The plaintiff, who was twenty years of age, was in the habit of passing the building almost daily, and had noticed that part of the roof was off. In a rain storm, the plaintiff went under the platform of the old freight house, and played there with other young people. A piece of the roof was torn off by the wind. The plaintiff, being frightened at the noise, ran out, saw the piece of the roof in the air, and ran towards the highway; but before or as he reached the edge of it, this fragment of the roof fell upon him.[133]

MORRIS, C. [After stating the case.] Upon the facts thus stated, can the appellant maintain this action?

There is no testimony tending to show that the appellant was at the freight house by the invitation of the appellee, nor that he was there for the purpose of transacting any business with the appellee. The appellant intruded upon the premises of the appellee, and is not, therefore, entitled to that protection which one, expressly or by implication, invited into the house or place of business of another, is entitled to. The appellant was a trespasser, and as such he entered upon the appellee’s premises, taking the risks of all the mere omissions of the appellee as to the condition of the grounds and buildings thus invaded without leave. We do not wish to be understood as holding or implying that if, on the part of the appellee, there had been any act done implying a willingness to inflict the injury upon the appellant, it would not be liable. But we think there is nothing in the evidence from which such an inference can be reasonably drawn. The building could be seen by all; its condition was open to the inspection of every one; it had been abandoned as a place for the transaction of public business; it was in a state of palpable and visible decay, and no one was authorized, impliedly or otherwise, to go into or under it. Under such circumstances, the law says to him who intrudes into such a place, that he must proceed at his own risk.

In the case of The Pittsburgh, &c. R. W. Co. _v._ Bingham, 29 Ohio St. 364, the question was: “Is a railroad company bound to exercise ordinary care and skill in the erection, structure, or maintenance of its station house or houses, as to persons who enter or are at the same, not on any business with the company or its agents, nor on any business connected with the operation of its road; but are there without objection by the company, and therefore by its mere sufferance or permission?” The Court answered this question in the negative.

In the case of Hounsell _v._ Smyth, 7 C. B. N. S. 731, the plaintiff fell into a quarry, left open and unguarded on the unenclosed lands of the defendant, over which the public were permitted to travel; it was held that the owner was under no legal obligation to fence or guard the excavation unless it was so near the public road as to render travel thereon dangerous. That the person so travelling over such waste lands must take the permission with its concomitant conditions, and, it may be, perils. Hardcastle _v._ The South Yorkshire R. W. Co., 4 H. & N. 67; Sweeny _v._ Old Colony, &c. R. R. Co., 10 Allen, 368; Knight _v._ Abert, 6 Barr, 472.

After reviewing the above and other cases, Judge Boynton, in the case of The Pittsburgh, &c. R. W. Co. _v._ Bingham, _supra_, says:—

“The principle underlying the cases above cited recognizes the right of the owner of real property to the exclusive use and enjoyment of the same without liability to others for injuries occasioned by its unsafe condition, where the person receiving the injury was not in or near the place of danger by lawful right; and where such owner assumed no responsibility for his safety by inviting him there, without giving him notice of the existence or imminence of the peril to be avoided.”

In the case from which we have quoted, the intestate of the plaintiff was at the defendant’s station house, not on any business with it, but merely to pass away his time, when, by a severe and sudden blast of wind, a portion of the roof of the station house was blown off the building and against the intestate, with such force as to kill him. The case, in its circumstances, was not unlike the one before us. Nicholson _v._ Erie R. W. Co., 41 N. Y. 525; Murray _v._ McLean, 57 Ill. 378; Durham _v._ Musselman, 2 Blackf. 96 (18 Am. Dec. 133).

In the case of Sweeny _v._ Old Colony, &c. R. R. Co., 10 Allen, 368, the Court say:—

“A licensee, who enters on premises by permission only, without any enticement, allurement, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the license subject to its concomitant perils.” Carleton _v._ Franconia Iron and Steel Co., 99 Mass. 216; Harris _v._ Stevens, 31 Vt. 79, 90; Wood _v._ Leadbitter, 13 M. & W. 838.

The evidence in this case brings it, we think, within the principles settled by the above cases.

The appellant contends that the evidence shows that the appellee was guilty of gross negligence in not repairing its freight house, and that such negligence renders it liable, though he entered upon its premises without invitation or license, as a mere intruder, and was, while such intruder, injured; and, in support of this proposition, we are referred to the following cases: Lafayette, &c. R. R. Co. _v._ Adams, 26 Ind. 76; Indianapolis, &c. R. R. Co. _v._ McClure, 26 Ind. 370; Gray _v._ Harris, 107 Mass. 492; Isabel _v._ Hannibal, &c. R. R. Co., 60 Mo. 475.

In the first of the above cases, the Court held that, where the negligence of the company was so gross as to imply a disregard of consequences or a willingness to inflict the injury, it was liable, though the party injured was not free from fault. In the second case, it was held that a railroad company, not required to fence its road, would not be liable for animals killed on its road, unless guilty of gross negligence. The phrase “gross negligence,” as used in these cases, means something more than the mere omission of duty; it meant, as shown by the evidence in the cases, reckless and aggressive conduct on the part of the company’s servants. “Something more than negligence, however gross, must be shown, to enable a party to recover for an injury, when he has been guilty of contributory negligence.” The Pennsylvania Co. _v._ Sinclair, 62 Ind. 301. There was, in the cases referred to in 26 Ind., something more than negligence. As in the case of The Indianapolis, &c. R. W. Co. _v._ McBrown, 46 Ind. 229, where the animal was driven through a deep cut, eighty rods long, into and upon a trestle work of the company, there was aggressive malfeasance. In the Massachusetts case, the Court held that a party building a dam across a stream must provide against unusual floods. We do not think these cases applicable to the one before us.

There could be no negligence on the part of the appellee, of which the appellant can be heard to complain, unless at the time he received the injury, the appellee was under some obligation or duty to him to repair its freight house. “Actionable negligence exists only where the one whose act causes or occasions the injury owes to the injured person a duty, created either by contract or by operation of law, which he has failed to discharge.” Pittsburgh, &c. R. W. Co. _v._ Bingham, _supra_; Burdeck _v._ Cheadle, 26 Ohio St. 393; Town of Salem _v._ Goller, 76 Ind. 291. We have shown that the appellee owed the appellant no such duty.

The judgment below should be affirmed.

PER CURIAM. It is ordered, upon the foregoing opinion, that the judgment below be affirmed, at the costs of the appellant.[134]

BUCH _v._ AMORY MANUFACTURING CO. SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1897. _Reported in 69 New Hampshire Reports, 257._

Case. Trial by jury and verdict for the plaintiff. March 30, 1886, the plaintiff, then eight years of age and unable to speak or understand English, was injured by the machinery in operation in the defendants’ mill. The evidence tended to show that the plaintiff’s brother, who was thirteen years of age, was employed as a back-boy in the mule-spinning room, and that at his request the plaintiff went into the room for the purpose of learning the work of a back-boy. The elder brother had no authority to request or permit the plaintiff to go into the mill or to instruct him, unless it could be inferred from the fact testified to by him that “he saw other boys taking their brothers to learn, as he understood from their motions.” The plaintiff was in the mill for a day and a half until the accident, openly assisting more or less in the work of the back-boys. He testified that he was directed by a person not the overseer of the room, whom he saw “bossing” the other boys, to pick up some bobbins and put some waste in a box. There was evidence tending to show that Fulton, the overseer, who was in charge of and hired the back-boys and other operatives in the room, passed in the alleys near the plaintiff, and that he was well acquainted with his help. He testified that he had no knowledge of the plaintiff’s presence in the room until about two hours before the accident, when, aware that the boy was not an employee, he directed him to go out, and thinking he might not understand English, took him to an operative who spoke the plaintiff’s language, whom he told to send the plaintiff out. The plaintiff testified that Fulton spoke to him and, as he understood, directed him to remove his vest, but that he did not understand he was ordered to leave. There was no evidence except Fulton’s that the order was communicated to the plaintiff or understood by him. There was no evidence or claim that the machinery was improperly constructed or operated, or that it was out of repair. The plaintiff’s hand was caught in a gearing which the back-boys were instructed to avoid, but there was no evidence that the plaintiff was given any instruction or warning whatever. There was evidence tending to prove that boys under thirteen years of age were not employed in the room, and that the place and machinery were dangerous for a child of the plaintiff’s age. Subject to exception, a motion that a verdict be directed for the defendants was denied.

CARPENTER, C. J. On the evidence, the jury could not properly find that the plaintiff was upon the premises of the defendants with their consent or permission. Although there was evidence tending to show that other back-boys had taken their brothers into the room for the purpose of instructing them in the business, there was no sufficient evidence that the fact that they did so was known to the defendants, and there was evidence that on the first occasion brought to their knowledge they objected. Upon this state of the evidence, a license by the defendants—whether material or immaterial—for the plaintiff’s presence in the room could not legitimately be inferred. The plaintiff was a trespasser.

The defendant’s machinery was in perfect order and properly managed. They were conducting their lawful business in a lawful way and in the usual and ordinary manner. During the plaintiff’s presence they made no change in the operation of their works or in their method of doing business. No immediate or active intervention on their part caused the injury. It resulted from the joint operation of the plaintiff’s conduct and the ordinary and usual condition of the premises. Under these circumstances, an adult in full possession of his faculties, or an infant capable of exercising the measure of care necessary to protect himself from the dangers of the situation, whether he was on the premises by permission or as a trespasser, could not recover.

The plaintiff was an infant of eight years. The particular circumstances of the accident—how or in what manner it happened that the plaintiff caught his hand in the gearing—are not disclosed by the case. It does not appear that any evidence was offered tending to show that he was incapable of knowing the danger from putting his hand in contact with the gearing, or of exercising a measure of care sufficient to avoid the danger. Such an incapacity cannot be presumed. Stone _v._ Railroad, 115 N. Y. 104, 109–111; Hayes _v._ Norcross, 162 Mass. 546, 548; Mulligan _v._ Curtis, 100 Mass. 512, 514; Cosgrove _v._ Ogden, 49 N. Y. 255, 258; Kunz _v._ Troy, 104 N. Y. 344, 351; Lovett _v._ Railroad, 9 Allen, 557, 563.

An infant is bound to use the reason he possesses and to exercise the degree of care and caution of which he is capable. If the plaintiff could by the due exercise of his intellectual and physical powers have avoided the injury, he is no more entitled to recover than an adult would be under the same circumstances. The burden was upon him, and the case might be disposed of upon the ground that he adduced no evidence tending to show that he had not sufficient reason and discretion to appreciate the particular risk of injury that he incurred and to avoid it. But it may be that evidence tending to show the plaintiff’s incapacity was adduced, and that the case is silent on the subject because this particular question was not made by the defendants.

Assuming, then, that the plaintiff was incapable either of appreciating the danger or of exercising the care necessary to avoid it, is he, upon the facts stated, entitled to recover? He was a trespasser in a place dangerous to children of his age. In the conduct of their business and management of their machinery the defendants were without fault. The only negligence charged upon or attributed to them is that, inasmuch as they could not make the plaintiff understand a command to leave the premises and ought to have known that they could not, they did not forcibly eject him.

## Actionable negligence is the neglect of a legal duty. The defendants are

not liable unless they owed to the plaintiff a legal duty which they neglected to perform. With purely moral obligations the law does not deal. For example, the priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might and morally ought to have prevented or relieved. Suppose A, standing close by a railroad, sees a two-year-old babe on the track and a car approaching. He can easily rescue the child with entire safety to himself, and the instincts of humanity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster; but he is not liable in damages for the child’s injury, or indictable under the statute for its death. P. S., c. 278, s. 8.

“In dealing with cases which involve injuries to children, courts ... have sometimes strangely confounded legal obligation with sentiments that are independent of law.” Indianapolis _v._ Emmelman, 108 Ind. 530. “It is important to bear in mind, in actions for injuries to children, a very simple and fundamental fact, which in this class of cases is sometimes strangely lost sight of, viz., that no action arises without a breach of duty.” 2 Thomp. Neg. 1183, note 3. “No action will lie against a spiteful man, who, seeing another running into danger, merely omits to warn him. To bring the case within the category of actionable negligence some wrongful act must be shown, or a breach of some positive duty; otherwise, a man who allows strangers to roam over his property would be held answerable for not protecting them against any danger they might encounter whilst using the license.” Gautret _v._ Egerton, L. R. 2 C. P. 371, 375.

What duties do the owners owe to a trespasser upon their premises? They may eject him, using such force and such only as is necessary for the purpose. They are bound to abstain from any other or further intentional or negligent acts of personal violence,—bound to inflict upon him by means of their own active intervention no injury which by due care they can avoid. They are not bound to warn him against hidden or secret dangers arising from the condition of the premises (Redigan _v._ Railroad, 155 Mass. 44, 47, 48), or to protect him against any injury that may arise from his own acts or those of other persons. In short, if they do nothing, let him entirely alone, in no manner interfere with him, he can have no cause of action against them for any injury that he may receive. On the contrary, he is liable to them for any damage that he by his unlawful meddling may cause them or their property. What greater or other legal obligation was cast on these defendants by the circumstance that the plaintiff was (as is assumed) an irresponsible infant?

If landowners are not bound to warn an adult trespasser of hidden dangers,—dangers which he by ordinary care cannot discover and, therefore, cannot avoid,—on what ground can it be claimed that they must warn an infant of open and visible dangers which he is unable to appreciate? No legal distinction is perceived between the duties of the owners in one case and the other. The situation of the adult in front of secret dangers which by no degree of care he can discover, and that of the infant incapable of comprehending danger, is in a legal aspect exactly the same. There is no apparent reason for holding that any greater or other duty rests upon the owners in one case than in the other.

There is a wide difference—a broad gulf—both in reason and in law, between causing and preventing an injury; between doing by negligence or otherwise a wrong to one’s neighbor, and preventing him from injuring himself; between protecting him against injury by another and guarding him from injury that may accrue to him from the condition of the premises which he has unlawfully invaded. The duty to do no wrong is a legal duty. The duty to protect against wrong is, generally speaking and excepting certain intimate relations in the nature of a trust, a moral obligation only, not recognized or enforced by law. Is a spectator liable if he sees an intelligent man or an unintelligent infant running into danger and does not warn or forcibly restrain him? What difference does it make whether the danger is on another’s land, or upon his own, in case the man or infant is not there by his express or implied invitation? If A sees an eight-year-old boy beginning to climb into his garden over a wall stuck with spikes and does not warn him or drive him off, is he liable in damages if the boy meets with injury from the spikes? Degg _v._ Railway, 1 H. & N. 773, 777. I see my neighbor’s two-year-old babe in dangerous proximity to the machinery of his windmill in his yard, and easily might, but do not, rescue him. I am not liable in damages to the child for his injuries, nor, if the child is killed, punishable for manslaughter by the common law or under the statute (P. S., c. 278, s. 8), because the child and I are strangers, and I am under no legal duty to protect him. Now suppose I see the same child trespassing in my own yard and meddling in like manner with the dangerous machinery of my own windmill. What additional obligation is cast upon me by reason of the child’s trespass? The mere fact that the child is unable to take care of himself does not impose on me the legal duty of protecting him in the one case more than in the other. Upon what principle of law can an infant by coming unlawfully upon my premises impose upon me the legal duty of a guardian? None has been suggested, and we know of none.

An infant, no matter of how tender years, is liable in law for his trespasses. 1 Ch. Pl. 86; 2 Kent, 241; Cool. Torts, 103; Poll. Torts, 46; 2 Add. Torts, 1126, 1153; 10 Am. & Eng. Enc. Law, 668, et seq.; Humphrey _v._ Douglass, 10 Vt. 71; School District _v._ Bragdon, 23 N. H. 507; Eaton _v._ Hill, 50 N. H. 235; Bullock _v._ Babcock, 3 Wend. 391; Williams _v._ Hays, 143 N. Y. 442, 446–451; Conklin _v._ Thompson, 29 Barb. 218; Neal _v._ Gillett, 23 Conn. 437; Huchting _v._ Engel, 17 Wis. 237. If, then, the defendants’ machinery was injured by the plaintiff’s act in putting his hand in the gearing, he is liable to them for the damages in an action of trespass and to nominal damages for the wrongful entry. It would be no answer to such an action that the defendants might by force have prevented the trespass. It is impossible to hold that while the plaintiff is liable to the defendants in trespass, they are liable to him in case for neglecting to prevent the act which caused the injury both to him and them. Cases of enticement, allurement, or invitation of infants to their injury, or setting traps for them, and cases relating to the sufficiency of public ways, or to the exposure upon them of machinery attractive and dangerous to children have no application here.

Danger from machinery in motion in the ordinary course of business cannot be distinguished from that arising from a well, pit, open scuttle, or other stationary object. The movement of the works is a part of the regular and normal condition of the premises. Sullivan _v._ Railroad, 156 Mass. 378; Holbrook _v._ Aldrich, 168 Mass. 15; Rodgers _v._ Lees, 140 Pa. St. 475. The law no more compels the owners to shut down their gates and stop their business for the protection of a trespasser than it requires them to maintain a railing about an open scuttle or to fence in their machinery for the same purpose. Benson _v._ Company, 77 Md. 535; Mergenthaler _v._ Kirby, 79 Md. 182. There was no evidence tending to show that the defendants neglected to perform any legal duty to the plaintiff. McGuiness _v._ Butler, 159 Mass. 233, 236, 238; Grindley _v._ McKechnie, 163 Mass. 494; Holbrook _v._ Aldrich, 168 Mass. 15, 17, and cases cited.

_Verdict set aside: judgment for the defendants._[135]

PARSONS, J., did not sit: the others concurred.

KEFFE _v._ MILWAUKEE AND ST. PAUL RAILWAY CO. SUPREME COURT, MINNESOTA, JANUARY 11, 1875. _Reported in 21 Minnesota Reports, 207._

The plaintiff, an infant, brought this action in the Court of Common Pleas for Ramsey County to recover damages for injuries sustained while playing upon a turn-table of defendant. The circumstances under which plaintiff was injured are thus stated in the complaint: “That in connection with said railroad” [of defendant] “defendant, before and up to the month of October, 1867, used and operated a certain turn-table, located on the lands of said defendant in said town of Northfield, which said turn-table was so constructed and arranged as to be easily turned around and made to revolve in a horizontal direction.”

After minutely describing the turn-table, the complaint proceeds: “That said turn-table was situated in a public place, near to a passenger depot of the defendant, and within 120 feet from the residence and home of plaintiff. That said turn-table was unfastened and in no way protected, fenced, guarded, or enclosed, to prevent it from being turned around at the pleasure of small children, although the same could at all times be readily locked and securely fastened.

“That said turn-table ... was in the possession and under the control of defendant, and not necessary in operating said railroad and it was the duty of said defendant to keep said turn-table fastened or in some way protected, so that children could not readily have access thereto and revolve the same. That the same was not so protected or fastened, and that said turn-table, when left unfastened, was very attractive to young children, and that while the same was being moved by children, and at all times when left unfastened, it was dangerous to persons upon or near it.

“That defendant had notice of all the aforesaid facts before and at the time the injury herein named occurred to the plaintiff.

“That plaintiff, on September 11, 1867, was a child of tender years, without judgment or discretion, he being at that date seven years old, and that in consequence of the carelessness, negligence, and improper conduct of said defendant, in not locking, enclosing, or otherwise fastening said turn-table, and by the negligence, carelessness, and improper conduct of said defendant, its agents, and servants, in allowing said turn-table to be and remain unfastened, insecure, and improperly put in motion, it was, at the date last aforesaid, revolved by other children, over whom the parents and guardians of plaintiff had no control, and without their knowledge, and, while being so revolved, the plaintiff, being on said turn-table, had his right leg caught near the knee, between the surface of said turn-table and said abutment or wall, and between the iron rail on said turn-table and the iron rail on said abutment or wall, and said leg was thereby so bruised, broken, mangled, and fractured, as to render amputation necessary.”

The complaint further alleges that the injury was caused by defendant’s negligence, and without any fault or negligence on the part of the plaintiff, or his parents or guardians, etc.

The defendant having answered the complaint, and the action having been called for trial, the defendant moved for judgment on the pleadings. The motion was granted by Hall, J., and judgment entered accordingly, from which plaintiff appealed.

_Bigelow, Flandrau & Clark_, for respondent, relied on the opinion of Hall, J., and the cases therein cited.[136]

YOUNG, J. In the elaborate opinion of the Court below, which formed the basis of the argument for the defendant in this Court, the case is treated as if the plaintiff was a mere trespasser, whose tender years and childish instincts were no excuse for the commission of the trespass, and who had no more right than any other trespasser to require the defendant to exercise care to protect him from receiving injury while upon its turn-table. But we are of opinion that, upon the facts stated in the complaint, the plaintiff occupied a very different position from that of a mere voluntary trespasser upon the defendant’s property, and it is therefore unnecessary to consider whether the proposition advanced by the defendant’s counsel, viz., that a landowner owes no duty of care to trespassers, is not too broad a statement of a rule which is true in many instances.

To treat the plaintiff as a voluntary trespasser is to ignore the averments of the complaint, that the turn-table, which was situate in a public (by which we understand an open, frequented) place, was, when left unfastened, very attractive, and, when put in motion by them, was dangerous to young children, by whom it could be easily put in motion, and many of whom were in the habit of going upon it to play. The turn-table, being thus attractive, presented to the natural instincts of young children a strong temptation; and such children, following, as they must be expected to follow, those natural instincts, were thus allured into a danger whose nature and extent they, being without judgment or discretion, could neither apprehend nor appreciate, and against which they could not protect themselves. The difference between the plaintiff’s position and that of a voluntary trespasser, capable of using care, consists in this, that the plaintiff was induced to come upon the defendant’s turn-table by the defendant’s own conduct, and that, as to him, the turn-table was a hidden danger,—a trap.

While it is held that a mere licensee “must take the permission with its concomitant conditions,—it may be perils,” Hounsell _v._ Smyth, 7 C. B. (N. S.) 731; Bolch _v._ Smith, 7 H. & N. 836, yet even such licensee has a right to require that the owner of the land shall not knowingly and carelessly put concealed dangers in his way. Bolch _v._ Smith, _per_ Channell and Wilde, BB.; Corby _v._ Hill, 4 C. B. (N. S.) 556, _per_ Willes, J.

And where one goes upon the land of another, not by mere license, but by invitation from the owner, the latter owes him a larger duty. “The general rule or principle applicable to this class of cases is that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any inducement, invitation, or allurement, either express or implied, by which they have been led to enter thereon.” _Per_ Bigelow, C. J., in Sweeny _v._ Old Colony & Newport R. Co., 10 Allen, 368, reviewing many cases. And see Indermaur _v._ Dames, L. R. 1 C. P. 274; L. R. 2 C. P. 311.

Now, what an express invitation would be to an adult, the temptation of an attractive plaything is to a child of tender years. If the defendant had left this turn-table unfastened for the purpose of attracting young children to play upon it, knowing the danger into which it was thus alluring them, it certainly would be no defence to an action by the plaintiff, who had been attracted upon the turn-table and injured, to say that the plaintiff was a trespasser, and that his childish instincts were no excuse for his trespass. In Townsend _v._ Wathen, 9 East, 277, it was held to be unlawful for a man to tempt even his neighbor’s dogs into danger, by setting traps on his own land, baited with strong-scented meat, by which the dogs were allured to come upon his land and into his traps. In that case, Lord Ellenborough asks, “What is the difference between drawing the animal into the trap by his natural instinct, which he cannot resist, and putting him there by manual force?” And Grose, J. says “A man must not set traps of this dangerous description in a situation to invite his neighbor’s dogs, and, as it were, to compel them by their instinct to come into the traps.”

It is true that the defendant did not leave the turn-table unfastened for the purpose of injuring young children; and if the defendant had no reason to believe that the unfastened turn-table was likely to attract and to injure young children, then the defendant would not be bound to use care to protect from injury the children that it had no good reason to suppose were in any danger. But the complaint states that the defendant knew that the turn-table, when left unfastened, was easily revolved; that, when left unfastened, it was very attractive, and when put in motion by them, dangerous, to young children; and knew also that many children were in the habit of going upon it to play. The defendant therefore knew that by leaving this turn-table unfastened and unguarded, it was not merely inviting young children to come upon the turn-table, but was holding out an allurement, which, acting upon the natural instincts by which such children are controlled, drew them by those instincts into a hidden danger; and having thus knowingly allured them into a place of danger, without their fault (for it cannot blame them for not resisting the temptation it has set before them), it was bound to use care to protect them from the danger into which they were thus led, and from which they could not be expected to protect themselves.

We agree with the defendant’s counsel that a railroad company is not required to make its land a safe playground for children. It has the same right to maintain and use its turn-table that any landowner has to use his property. It is not an insurer of the lives or limbs of young children who play upon its premises. We merely decide that when it sets before young children a temptation which it has reason to believe will lead them into danger, it must use ordinary care to protect them from harm. What would be proper care in any case must, in general, be a question for the jury, upon all the circumstances of the case.

The position we have taken is fully sustained by the following cases, some of which go much farther in imposing upon the owner of dangerous articles the duty of using care to protect from injury children who may be tempted to play near or meddle with them, than it is necessary to go in this case. Lynch _v._ Nurdin, 1 Q. B. 29; Birge _v._ Gardiner, 19 Conn. 507; Whirley _v._ Whiteman, 1 Head, 610.

It is true that, in the cases cited, the principal question discussed is not whether the defendant owed the plaintiff the duty of care, but whether the defendant was absolved from liability for breach of duty by reason of the fact that the plaintiff was a trespasser, who, by his own act, contributed to the injury; and the distinction is not sharply drawn between the effect of the plaintiff’s trespass, as a bar to his right to require care, and the plaintiff’s contributory negligence, as a bar to his right to recover for the defendant’s failure to exercise such care as it was his duty to use. But as a young child, whom the defendant knowingly tempts to come upon his land, if anything more than a technical trespasser, is led into the commission of the trespass by the defendant himself, and thus occupies a position widely different from that of an ordinary trespasser, the fact that the Courts, in the cases referred to, assumed, instead of proving, that the defendant owed to a young child, under such circumstances, a duty he would not owe to an ordinary trespasser, for whose trespass he was not in any way responsible, does not weaken the authority of those cases. And in Railroad Co. _v._ Stout, 17 Wall. 657 (a case in all respects similar to the present), the distinction insisted on by counsel is taken by Mr. Justice Hunt, and the circumstance that the plaintiff was in some sense a trespasser is held not to exempt the defendant from the duty of care. In the charge of the learned circuit judge at the trial of the last named case (reported under the title of Stout _v._ Sioux City & Pacific R. Co., 2 Dillon, 294), the elements which must concur to render the defendant liable, in a case like the present, are clearly stated.

In Hughes _v._ Macfie, 2 Hurlst. & Coltm. 744, and Mangan _v._ Atterton, L. R. 1 Exch. 239, cited by defendant’s counsel, there was nothing to show that the defendants knew or had reason to apprehend that the cellar lid in the one case, or the crushing machine in the other, would be likely to attract young children into danger. It must be conceded that Hughes _v._ Macfie is not easily to be reconciled with Birge _v._ Gardiner, and that Mangan _v._ Atterton seems to conflict with Lynch _v._ Nurdin; but whether correctly decided or otherwise, they do not necessarily conflict with our decision in this case.

Much reliance is placed by defendant on Phila. & Reading R. Co. _v._ Hummell, 44 Penn. St. 375 and Gillis _v._ Penn. R. Co., 59 Penn. St. 129. In the first of these cases, the plaintiff, a young child, was injured by coming upon the track while the cars were in motion. The only negligence charged upon the defendant was the omission to give any signal at or after the starting of the train. If the plaintiff had been crossing the track, through one of the openings which the company had suffered the people in the neighborhood to make in the train while standing on the track, and the cars had then been run together upon him, without any warning, the case would more nearly resemble the present; but the facts, as they appear, show that the company used abundant care, and that it had no reason to suppose that the plaintiff was exposed to danger; and the decision is put upon the latter ground, although Strong, J., delivering the opinion of the Court, uses language which lends some support to the defendant’s contention in this case. Gillis _v._ Penn. R. Co. was properly decided, on the ground that the company did nothing to invite the plaintiff upon the platform, by the fall of which he was injured, and that the platform was strong enough to bear the weight of any crowd of people which the company might reasonably expect would come upon it. Neither of these cases is an authority against, while a later case in the same court, Kay _v._ Penn. R. Co., 65 Penn. St. 269, tends strongly to support, the plaintiff’s right of action in this case; and the recent case of Pittsburg, A. & M. Passenger R. Co. _v._ Caldwell, 74 Penn. St. 421, points in the same direction.

It was not urged upon the argument that the plaintiff was guilty of contributory negligence, and we have assumed that the plaintiff exercised, as he was bound to do, such reasonable care as a child of his age and understanding was capable of using, and that there was no negligence on the part of his parents or guardians, contributing to his injury.

_Judgment reversed._[137]

FROST _v._ EASTERN RAILROAD SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1886. _Reported in 64 New Hampshire Reports, 220._

Case, for personal injuries from the alleged negligence of the defendants in not properly guarding and securing a turn-table. The plaintiff, who sues by his father and next friend, was seven years old when the accident occurred, June 23, 1877, and the action was commenced June 7, 1884. Plea, the general issue and statute of limitations. A motion for a nonsuit was denied, and the defendants excepted. Verdict for the plaintiff. The facts are sufficiently stated in the opinion.

CLARK, J. The action is not barred by the statute of limitations. “Any infant, married woman, or insane person may bring any personal actions within two years after such disability is removed.” G. L., c. 221, s. 7.

As a general rule, in cases where a disability exists when the right of

## action accrues, the statute does not run during the continuance of the

disability, and it has not commenced to run against the plaintiff. Pierce _v._ Dustin, 24 N. H. 417; Little _v._ Downing, 37 N. H. 356. It is said that the plaintiff’s next friend was under no disability, that he could have brought the action at any time within six years after the right of action accrued, and therefore the statute should apply to this case. It is an answer to this suggestion that it is the infant’s action, and the failure of the next friend to bring suit within six years is no bar to the plaintiff’s right of action. Wood Lim. of Act. 476.

The motion for a nonsuit raises the question whether there was evidence upon which the jury could properly find a verdict for the plaintiff. Paine _v._ Railway, 58 N. H. 611. The ground of the action is, that the defendants were guilty of negligence in maintaining a turn-table insecurely guarded, which, being wrongfully set in motion by older boys, caused an injury to the plaintiff, who was at that time seven years old, and was attracted to the turn-table by the noise of the older and larger boys turning and playing upon it. The turn-table was situated on the defendants’ land, about sixty feet from the public street, in a cut with high, steep embankments on each side; and the land on each side was private property and fenced. It was fastened by a toggle, which prevented its being set in motion unless the toggle was drawn by a lever, to which was attached a switch padlock, which being locked prevented the lever from being used unless the staple was drawn. At the time of the accident the turn-table was fastened by the toggle, but it was a controverted point whether the padlock was then locked. When secured by the toggle and not locked with the padlock, the turn-table could not be set in motion by boys of the age and strength of the plaintiff.

Upon these facts we think the action cannot be maintained. The alleged negligence complained of relates to the construction and condition of the turn-table, and it is not claimed that the defendants were guilty of any active misconduct towards the plaintiff. The right of a landowner in the use of his own land is not limited or qualified like the enjoyment of a right or privilege in which others have an interest, as the use of a street for highway purposes under the general law, or for other purposes under special license (Moynihan _v._ Whidden, 143 Mass. 287), where care must be taken not to infringe upon the lawful rights of others. At the time of his injury the plaintiff was using the defendants’ premises as a playground without right. The turn-table was required in operating the defendants’ railroad. It was located on its own land so far removed from the highway as not to interfere with the convenience and safety of the public travel, and it was not a trap set for the purpose of injuring trespassers. Aldrich _v._ Wright, 53 N. H. 404. Under these circumstances, the defendants owed no duty to the plaintiff; and there can be no negligence or breach of duty where there is no act or service which the party is bound to perform or fulfil. A landowner is not required to take active measures to insure the safety of intruders, nor is he liable for an injury resulting from the lawful use of his premises to one entering upon them without right. A trespasser ordinarily assumes all risk of danger from the condition of the premises; and to recover for an injury happening to him he must show that it was wantonly inflicted, or that the owner or occupant, being present and acting, might have prevented the injury by the exercise of reasonable care after discovering the danger. Clark _v._ Manchester, 62 N. H. 577; State _v._ Railroad, 52 N. H. 528; Sweeny _v._ Railroad, 10 Allen, 368; Morrissey _v._ Railroad, 126 Mass. 377; Severy _v._ Nickerson, 120 Mass. 306; Morgan _v._ Hallowell, 57 Me. 375; Pierce _v._ Whitcomb, 48 Vt. 127; McAlpin _v._ Powell, 70 N. Y. 126; St. L., V. & T. H. R. R. Co. _v._ Bell, 81 Ill. 76; Gavin _v._ Chicago, 97 Ill. 66; Wood _v._ School District, 44 Iowa, 27; Gramlich _v._ Wurst, 86 Pa. St. 74; Cauley _v._ P. C., & St. Louis Railway Co., 95 Pa. St. 398; Gillespie _v._ McGowan, 100 Pa. St. 144; Mangan _v._ Atterton, L. R. 1 Ex. 239. The maxim that a man must use his property so as not to incommode his neighbor, only applies to neighbors who do not interfere with it or enter upon it. Knight _v._ Abert, 6 Pa. St. 472. To hold the owner liable for consequential damages happening to trespassers from the lawful and beneficial use of his own land would be an unreasonable restriction of his enjoyment of it.

We are not prepared to adopt the doctrine of Railroad Co. _v._ Stout, 17 Wall. 657, and cases following it, that the owner of machinery or other property attractive to children is liable for injuries happening to children wrongfully interfering with it on his own premises. The owner is not an insurer of the safety of infant trespassers. One having in his possession agricultural or mechanical tools is not responsible for injuries caused to trespassers by careless handling, nor is the owner of a fruit-tree bound to cut it down or enclose it, or to exercise care in securing the staple and lock with which his ladder is fastened, for the protection of trespassing boys who may be attracted by the fruit. Neither is the owner or occupant of premises upon which there is a natural or artificial pond, or a blueberry pasture, legally required to exercise care in securing his gates and bars to guard against accidents to straying and trespassing children. The owner is under no duty to a mere trespasser to keep his premises safe; and the fact that the trespasser is an infant cannot have the effect to raise a duty where none otherwise exists. “The supposed duty has regard to the public at large, and cannot well exist as to one portion of the public and not to another, under the same circumstances. In this respect children, women, and men are upon the same footing. In cases where certain duties exist, infants may require greater care than adults, or a different kind of care; but precautionary measures having for their object the protection of the public must as a rule have reference to all classes alike.” Nolan _v._ N. Y. N. H. & H. Railroad Co., 53 Conn. 461.

There being no evidence to charge the defendants with negligence, the motion for a nonsuit should have been granted.

_Exceptions sustained._[138]

COOKE _v._ MIDLAND GREAT WESTERN RAILWAY OF IRELAND IN THE HOUSE OF LORDS, MARCH 1, 1909. _Reported in [1909] Appeal Cases, 229._

The appellant by his father brought an action against the respondents for an injury sustained on the company’s land in Meath under the circumstances stated in the head-note, the details of which are fully discussed in the judgments in this House. At the trial before Lord O’Brien, C. J., the jury found a verdict for the plaintiff for £550, and judgment was entered accordingly. The jury found that the fence was in a defective condition through the negligence of the defendants; that the plaintiff was allured through the hedge and up to the turn-table by the negligence of the defendants; and that it was by reason of the defendants’ negligence and as the effective cause of it that the misfortune occurred. That judgment was affirmed by the King’s Bench Division in Ireland (Palles, C. B., and Johnson, J., Kenny, J., dissenting) and was afterwards set aside by the Court of Appeal in Ireland (Sir S. Walker, L. C., FitzGibbon and Holmes, L.JJ.). Hence this appeal by the plaintiff.[139]

LORD MACNAGHTEN. My Lords, the only question before your Lordships is this: Was there evidence of negligence on the part of the company fit to be submitted to the jury? If there was, the verdict must stand, although your Lordships might have come to a different conclusion on the same materials.

I cannot help thinking that the issue has been somewhat obscured by the extravagant importance attached to the gap in the hedge, both in the arguments of counsel and in the judgments of some of the learned judges who have had the case under consideration. That there was a gap there, that it was a good broad gap some three feet wide, is, I think, proved beyond question. But of all the circumstances attending the case it seems to me that this gap taken by itself is the least important. I have some difficulty in believing that a gap in a roadside fence is a strange and unusual spectacle in any part of Ireland. But however that may be, I quite agree that the insufficiency of the fence, though the company were bound by Act of Parliament to maintain it, cannot be regarded as the effective cause of the accident.

The question for the consideration of the jury may, I think, be stated thus: Would not a private individual of common sense and ordinary intelligence, placed in the position in which the company were placed, and possessing the knowledge which must be attributed to them, have seen that there was a likelihood of some injury happening to children resorting to the place and playing with the turn-table, and would he not have thought it his plain duty either to put a stop to the practice altogether, or at least to take ordinary precautions to prevent such an accident as that which occurred?

This, I think, was substantially the question which the Lord Chief Justice presented to the jury. It seems to me to be in accordance with the view of the Court of Queen’s Bench in Lynch _v._ Nurdin, 1 Q. B. 29, and the opinion expressed by Romer and Stirling, L.JJ., in McDowall _v._ Great Western Ry. Co., [1903] 2 K. B. 331.

The Lord Chancellor of Ireland puts Lynch _v._ Nurdin, 1 Q. B. 29, aside. He holds that it bears no analogy to the present case, because the thing that did the mischief there was a “cart in the public street—a nuisance.” But no question of nuisance was considered in Lynch _v._ Nurdin. That point was not suggested. The ground of the decision is a very simple proposition. “If,” says Lord Denman, “I am guilty of negligence in leaving anything dangerous in a place where I know it to be extremely probable that some other person will unjustifiably set it in motion to the injury of a third, and if that injury should be so brought about, I presume that the sufferer might have redress by action against both or either of the two, but unquestionably against the first.” If that proposition be sound, surely the character of the place, though, of course, an element proper to be considered, is not a matter of vital importance. It cannot make very much difference whether the place is dedicated to the use of the public or left open by a careless owner to the invasion of children who make it their playground.

I think the jury were entitled and bound to take into consideration all the circumstances of the case—the mode in which the turn-table was constructed; its close proximity to the wall by which the plaintiff’s leg was crushed; the way in which it was left, unfenced, unlocked, and unfastened; the history of this bit of ground and its position, shut off as it was by an embankment from the view of the company’s servants at the station, and lying half derelict. After the construction of the embankment it served no purpose in connection with the company’s undertaking, except that at one time a corner of it was used as a receptacle for some timber belonging to the company, and afterwards as a site for this turn-table. In other respects, and apart from these uses, it seems to have been devoted or abandoned to the sustenance of the railway inspector’s goat and the diversion of the youth of Navan. It is proved that in spite of a notice board idly forbidding trespass it was a place of habitual resort for children, and that children were frequently playing with the timber, and afterwards with the turn-table. At the date of the trial, twelve months after the accident, a beaten path leading from the gap bore witness both to the numbers that flocked to the spot and to the special attraction that drew children to it. It is remarkable that not a single word of cross-examination as to either of these points was addressed to the principal witnesses for the plaintiff, Tully, the herd, and Gertrude Cooke, the plaintiff’s sister; nor was any explanation or evidence offered on the part of the company. Now the company knew, or must be deemed to have known, all the circumstances of the case and what was going on. Yet no precaution was taken to prevent an accident of a sort that might well have been foreseen and very easily prevented. They did not close up the gap until after the accident. Then it was the first thing thought of. But it was too late. They did not summon any of the children who played there, or bring them before the magistrates, as a warning to trespassers and a proof that they were really in earnest in desiring to stop an objectionable practice which had gone on so long and so openly. They did not have their turn-table locked automatically in the way in which Mr. Barnes, C. E., whose evidence is uncontradicted, says it is usual to lock such machines. The table, it seems, was not even fastened. There was a bolt; but if Cooke, the father of the plaintiff, is to be believed, the bolt was rusty and unworkable. The jury were not bound to believe Fowler, a ganger in the service of the company, in preference to Cooke. Fowler, after some incautious admissions which the jury probably accepted as true, turned round and showed himself, as the Chief Justice says, to be hostile to the plaintiff. He prevaricated to such an extent that the jury were justified in disregarding everything said by him with the view of shielding his employers or saving himself from blame, whether it came out of his own head, as the nonsense he talked about rat-holes, or was suggested by counsel, as the expression of “hunting” children off the ground.

* * * * *

It seems to me that the Chief Justice would have been wrong if he had withdrawn the case from the jury. I think the jury were entitled, in view of all the circumstances, on the evidence before them, uncontradicted as it was, to find that the company were guilty of negligence. I am therefore of opinion that the finding of the jury should be upheld and the judgment under appeal reversed, with pauper costs here and costs below; and I move your Lordships accordingly.

I will only add that I do not think that this verdict will be followed by the disastrous consequences to railway companies and landowners which the Lord Chancellor of Ireland seems to apprehend. Persons may not think it worth their while to take ordinary care of their own property, and may not be compellable to do so; but it does not seem unreasonable to hold that, if they allow their property to be open to all comers, infants as well as children of maturer age, and place upon it a machine attractive to children and dangerous as a plaything, they may be responsible in damages to those who resort to it with their tacit permission, and who are unable, in consequence of their tender age, to take care of themselves.[140]

BOLCH _v._ SMITH IN THE EXCHEQUER, JANUARY 30, 1862. _Reported in 7 Hurlstone & Norman, 736._

## Action to recover for damage occurring as hereinafter stated. Pleas:

first, not guilty; second, various special pleas. Issues thereon.[141]

At the trial, before CHANNELL, B., at the last Hampshire Summer Assizes, the following facts appeared: The plaintiff was a millwright employed in the Government dock-yard at Portsmouth. The defendant was a contractor, and had been engaged for some time in enlarging one of the docks. The men employed in the dock-yard were not allowed to leave it during the day, and water-closets had been built for their use. For the purpose of going to these water-closets, they had permission to use certain paths which crossed the dock-yard. The defendant had been permitted to erect a mortar-mill for the purpose of his work, and he built an engine-house on one side of one of these paths and the mortar-mill on the other side of the path. A revolving shaft which connected the engine with the mill was placed across the path about six inches above the level of the ground. This shaft was partly covered with a few planks not joined together, and forming an incline upwards from the ground, so that a barrow could be wheeled over it. The shaft had been on that spot covered or uncovered for five years. The plaintiff had gone along this path to one of the water-closets, and whilst returning he accidentally stumbled when near the shaft, which was in rapid motion, and on reaching out his hand to save himself his left arm was caught by the shaft, and so much lacerated that it was necessary to amputate it. There were two other paths by which the plaintiff might have reached the water-closet; but the one he used was the shortest and most convenient.

In the course of the defendant’s case it appeared that the shaft had been fenced to some extent but not sufficiently.

At the close of the defendant’s case, the learned judge proposed to leave it to the jury to assess the damages, supposing the plaintiff had a right of action, and then to nonsuit the plaintiff, reserving leave for him to move to set aside the nonsuit, and enter the verdict for the amount assessed by the jury. The plaintiff’s counsel declined to accede to this course; whereupon the learned judge left it to the jury to say: first, whether the plaintiff was lawfully using the way in question on the day of the accident; secondly, whether the defendant was guilty of negligence in leaving the shaft in the state it was on that day. The jury answered both questions in the affirmative, and they added that they found “that the shaft was not sufficiently fenced;” and they assessed the damages at 230_l._ A verdict having been entered for the plaintiff for that amount.

_Coleridge_, in last Michaelmas Term, obtained a rule nisi for a new trial, on the ground that the learned judge misdirected the jury in not telling them that there was no obligation on the part of the defendant to fence the shaft; and also that the verdict was against the evidence.

CHANNELL, B. I am of opinion that the rule must be absolute for a new trial. [Remainder of opinion omitted.]

MARTIN, B. I am of the same opinion. The real objection to this action is that the plaintiff has failed to establish that there was any obligation or duty on the part of the defendant to have this path in any other condition than it was at the time of the accident. That should have been established in some way. If the plaintiff could have shown any such obligation on the part of the defendant he would have made out a case, but that was a condition precedent, and the plaintiff has wholly failed to do so. The defendant had a right to erect the machinery, to erect it in the place he did, and to work it in the manner he was doing.

Then what is the true condition of the plaintiff? It is said that he had a right to go along the path across which the machinery was erected, for he was a workman employed in the dock-yard, and had liberty to use the water-closet. But that is a fallacious argument. It is true the plaintiff had permission to use the path. Permission involves leave and license, but it gives no _right_. If I avail myself of permission to cross a man’s land, I do so by virtue of a license, not of a right. It is an abuse of language to call it a right: it is an excuse or license, so that the party cannot be treated as a trespasser. Inasmuch as there was another way by which the plaintiff might have gone, but voluntarily chose the one which was out of order, I think he has no right of action against the defendant, and that he ought to have been nonsuited at the trial.

WILDE, B. I am of the same opinion. It is of importance in all these cases that the facts upon which the decisions are based should be made plain. The plaintiff was one of a number of persons who obtained leave and license from the dock-yard authorities to cross the yard from one place to another. The defendant had permission from the same authorities to put up certain machinery in the yard. The plaintiff while walking along the usual track fell down, not by reason of any obstruction, but in consequence of stumbling, and in trying to save himself, his arm came in contact with a revolving shaft and was lacerated.

I will decide the case as if it were a question between the plaintiff and the owners of the yard, because if they are not responsible for putting up the shaft, a fortiori the defendant is not. Then, was there any obligation on the owners of the yard not to put up machinery that might be dangerous to persons crossing it? None of the facts tend to show that any such obligation existed. If what was put up was an obstruction to any person who used that way, the only consequence would be that he would have to go another way. That being so, it appears to me that this action cannot lie, because I agree that it is founded upon a duty, and none exists.

That disposes of the case; but I will add that I do not mean to say that if the defendant had made a hole in the yard, and had covered it in a way that was insufficient, but which appeared to be sufficient, he would not have been liable. But here there was nothing of that character. The danger was open and visible. There was nothing which could be called a “trap.”

POLLOCK, C. B., concurred.

_Rule absolute for a new trial._[142]

GAUTRET _v._ EGERTON IN THE COMMON PLEAS, FEBRUARY 11, 1867. _Reported in Law Reports, 2 Common Pleas, 371._

The declaration in the first of these actions stated that the defendants were possessed of a close of land, and of a certain canal and cuttings intersecting the same, and of certain bridges across the said canal and cuttings, communicating with and leading to certain docks of the defendants, which said land and bridges had been and were from time to time used with the consent and permission of the defendants by persons proceeding towards and coming from the said docks; that the defendants, well knowing the premises, wrongfully, negligently, and improperly kept and maintained the said land, canal, cuttings, and bridges, and suffered them to continue and be in so improper a state and condition as to render them dangerous and unsafe for persons lawfully passing along and over the said land and bridges towards the said docks, and using the same as aforesaid; and that Leon Gautret, whilst he was lawfully in and passing and walking along the said close and over the said bridge, and using the same in the manner and for the purpose aforesaid, by and through the said wrongful, negligent, and improper conduct of the defendants as aforesaid, fell into one of the said cuttings of the defendants, intersecting the said close as aforesaid, and thereby lost his life within twelve calendar months next before the suit: and the plaintiff, as administratrix, for the benefit of herself, the widow of the said Leon Gautret, and A. Gautret, &c., according to the statute in such case made and provided, claimed 2,500_l._

The defendants demurred to the declaration, on the ground that “it does not appear that there was any legal duty or obligation on the part of the defendants to take means for preventing the said land, &c., being dangerous and unsafe.” Joinder.

_Crompton_ (_Mellish, Q. C._, with him), in support of the demurrer.—To maintain this action, the declarations ought to show a _duty_ in the defendants to keep the canal, cuttings, and bridges in a safe condition, and also that some invitation had been held out to the deceased to come there, and that the thing complained of constituted a sort of trap. Seymour _v._ Maddox, 16 Q. B. 326 (E. C. L. R. vol. 71), 19 L. J. Q. B. 525; Corby _v._ Hill, 4 C. B. N. S. 556 (E. C. L. R. vol. 93), 27 L. J. C. P. 318. The declaration is entirely wanting in all these particulars. It is not enough to show that the defendants were aware that the place in question was in an unsafe condition, and that the public were in the habit of passing along it. Hounsell _v._ Smyth, 7 C. B. N. S. 731, 29 L. J. C. P. 203.

[WILLES, J. The declaration does not even state that the deceased persons were unacquainted with the state of the place.]

_Herschell_, for the plaintiff Gautret.—The question raised upon this declaration is, whether there is any duty on the part of the defendants toward persons using their land as the deceased here did. That may be negligence in the case of a licensee, which would not be negligence as against a mere trespasser: and, if there can be any case in which the law would imply a duty, it is sufficiently alleged here.

[WILLES, J. It may be the duty of the defendants to abstain from doing any act which may be dangerous to persons coming upon the land by their invitation or permission, as in Indermaur _v._ Dames, Law Rep. 1 C. P. 274.[143] So, if I employ one to carry an article which is of a peculiarly dangerous nature, without cautioning him, I may be responsible for any injury he sustains through the absence of such caution. That was the case of Farrant _v._ Barnes, 11 C. B. N. S. 553, 31 L. J. C. P. 137. But, what duty does the law impose upon these defendants to keep their bridges in repair? If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it, I may be liable for the consequences: but, if I do nothing, I am not.]

It was not necessary to specify the nature of the negligence which is charged: it was enough to allege generally a duty and a breach of it. Knowing the bridge to be unsafe, it was the duty of the defendants not to permit the public to use it. In Bolch _v._ Smith, 7 H. & N. 736, 31 L. J. Ex. 201, the defect in the fencing of the shaft was apparent: but the judgments of Channell and Wilde, BB., seem to concede that, if there had been a concealed defect, the action would have been maintainable. That shows that there is some duty in such a case as this.

_Potter_, for the plaintiff Jones, submitted that the implied request on the part of the defendants to persons having occasion to go to the docks to pass by the way in question, raised a duty in them to keep it in a safe condition.

WILLES, J. I am of opinion that our judgment must be for the defendants in each of these cases. The argument urged on behalf of the plaintiffs, when analyzed, amounts to this, that we ought to construe the general words of the declaration as describing whatever sort of negligence the plaintiffs can prove at the trial. The authorities, however, and reason and good sense, are the other way. The plaintiff must, in his declaration, give the defendant notice of what his complaint is. He must recover _secundum allegata et probata_. What is it that a declaration of this sort should state in order to fulfil those conditions? It ought to state the facts upon which the supposed duty is founded, and the duty to the plaintiff with the breach of which the defendant is charged. It is not enough to show that the defendant has been guilty of negligence, without showing in what respect he was negligent, and how he became bound to use care to prevent injury to others. All that these declarations allege is, that the defendants were possessed of land, and of a canal and cuttings intersecting the same, and of certain bridges across the canal and cuttings communicating with and leading to certain docks of theirs; that they allowed persons going to and from the docks, whether upon the business or for the profit of the defendants or not, to pass over the land; and that the deceased persons, in pursuance of and using that permission, fell into one of the cuttings, and so met their deaths. The consequences of these accidents are sought to be visited upon these defendants, because they have allowed persons to go over their land, not alleging it to have been upon the business or for the benefit of the defendants, or as the servants or agents of the defendants; nor alleging that the defendants have been guilty of any wrongful act, such as digging a trench on the land, or misrepresenting its condition, or anything equivalent to laying a trap for the unwary passengers; but simply because they permitted these persons to use a way with the condition of which, for anything that appears, those who suffered the injury were perfectly well acquainted. That is the whole sum and substance of these declarations. If the docks to which the way in question led were public docks, the way would be a public way, and the township or parish would be bound to repair it, and no such liability as this could be cast upon the defendants merely by reason of the soil of the way being theirs. That is so not only in reason but also upon authority. It was so held in Robbins _v._ Jones, 15 C. B. N. S. 221, 33 L. J. C. P. 1, where a way having been for a number of years dedicated to the public, we held that the owner of the adjoining house was not responsible for death resulting to a person from the giving way of the pavement, partly in consequence of its being over-weighted by a number of persons crowding upon it, and partly from its having been weakened by user. Assuming that these were private docks, the private property of the defendants, and that they permitted persons going to or coming from the docks, whether for their own benefit or that of the defendants, to use the way, the dedication of a permission to use the way must be taken to be in the character of a gift. The principle of law as to gifts is, that the giver is not responsible for damage resulting from the insecurity of the thing, unless he knew its evil character at the time, and omitted to caution the donee. There must be something like fraud on the part of the giver before he can be made answerable. It is quite consistent with the declarations in these cases that this land was in the same state at the time of the accident that it was in at the time the permission to use it was originally given. To create a cause of

## action, something like fraud must be shown. No action will lie against a

spiteful man who, seeing another running into a position of danger, merely omits to warn him. To bring the case within the category of

## actionable negligence, some wrongful act must be shown, or a breach of

some positive duty: otherwise, a man who allows strangers to roam over his property would be held to be answerable for not protecting them against any danger which they might encounter whilst using the license. Every man is bound not wilfully to deceive others, or do any act which may place them in danger. It may be, as in Corby _v._ Hill, 4 C. B. N. S. 556, 27 L. J. C. P. 318, that he is responsible if he puts an obstruction on the way which is likely to cause injury to those who by his permission use the way; but I cannot conceive that he could incur any responsibility merely by reason of his allowing the way to be out of repair. For these reasons, I think these declarations disclose no cause of action against the defendants, and that the latter are therefore entitled to judgment.

KEATING, J. I am of the same opinion. It is not denied that a declaration of this sort must show a duty and a breach of that duty. But it is said that these declarations are so framed that it would be necessary for the plaintiffs at the trial to prove a duty. I am, however, utterly unable to discover any duty which the defendants have contracted towards the persons whom the plaintiffs represent, or what

## particular breach of duty is charged. It is said that the condition of

the land and bridges was such as to constitute them a kind of trap. I cannot accede to that. The persons who used the way took it with all its imperfections.

_Herschell_ asked and obtained leave to amend within ten days, on payment of costs; otherwise judgment for the defendants.

_Judgment accordingly._

CAMPBELL _v._ BOYD SUPREME COURT, NORTH CAROLINA, FEBRUARY TERM, 1883. _Reported in 88 North Carolina Reports, 129._

Civil action tried at Fall Term, 1882, of Beaufort Superior Court, before Gilliam, J.

The defendant appealed.

SMITH, C. J. The defendant owns and operates a mill, that has been built and used for one hundred years, at the head of Pungo creek. A few yards below its site the creek divides, and its waters flow in two separate streams. Along its course on either side run parallel public roads each two miles distant, and from them have been constructed private ways leading up to and meeting at the mill, and affording convenient access from the roads to it. One of these ways was opened by former proprietors, and the other in the year 1867, by the defendant.

In 1875 or 1876, the defendant, with other owners of the intervening land, united in opening a connecting way, between those leading from the public roads, from near points in each, so as to form a direct passway across the two divergent streams from one road to the other, without going up to the mill. Over these waters they also constructed bridges. While this direct route was opened mainly for the convenience of the defendant and his associates, whose lands were traversed, it was also used as well by the public with full knowledge of the defendant, and without objection from any one in passing between the roads.

In February, 1882, the plaintiff, with his horse, while in the use of this connecting way and passing one of the bridges, broke through, and both were precipitated into the creek, and the damage sustained for the redress of which the suit is brought.

The flooring of the bridge was sound, and there was no visible indication of weakness or decay to put a person passing over it on his guard. But the timbers underneath, and hidden by the floor, were in a rotten and unsound condition, and of this the defendant had full knowledge before the disaster.

He was at his mill and saw what occurred, and going up to the place remarked to the plaintiff that when he saw him about to enter the bridge he thought of calling him to stop, but did not do so; that the bridge was unsafe, and he regretted he did not stop the plaintiff from crossing.

These are the material facts found by the judge, under the consent of

## parties that he should pass upon the evidence and ascertain the facts of

the case, and our only inquiry is upon the correctness of his ruling that the defendant is liable in damages to the plaintiff, and from which the defendant appeals.

The only case in our reports bearing upon the point is that of Mulholland _v._ Brownrigg, 2 Hawks, 349. There, the defendant’s millpond overflowed parts of the public road, and hollow bridges had been erected, but by whom, did not appear; nor was it shown that they were built at the expense of the public. This condition of things had existed for twenty years, and the mill had been owned and operated by the defendant for the space of five years. The successive mill proprietors had kept the overflowed bed of the road and the bridges in repair. The plaintiff’s wagon, loaded with goods, passing a bridge, broke through, in consequence of its decayed state, and the goods were injured by the water. The action was for this injury. It was declared by the Court that as a nuisance was created by the flooding of the road, and the defendant had undertaken to remedy it in constructing the bridges, it was his duty, as that of preceding proprietors of the mill, to maintain them in a proper condition of repair, and ensure the safety of those persons who in using the road had to pass over them, and that the damage having resulted from his negligence he was liable to the plaintiff. The proposition is asserted, that inasmuch as the defendant has undertaken to remedy a nuisance of his own creating, by constructing the bridge, he undertakes also and is bound to keep it in sufficient repair, and is answerable for the consequences of his neglect to do so.

The principle of law, in more general terms and with a wider scope, is thus expressed by Hoar, J., in Combs _v._ New Bed. Con. Co., 102 Mass. 584. “There is another class of cases in which it has been held that, if a person allows a dangerous place to exist in premises occupied by him, he will be responsible for injury caused thereby, to any other person entering upon the premises by his invitation and procurement, express or implied, and not notified of the danger, if the person injured is in the use of due care.”

“The principle is well settled,” remarks Appleton, C. J., “that a person injured, without neglect on his part, by a defect or obstruction in a way or passage over which he has been induced to pass for a lawful purpose, by an invitation express or implied, can recover damages for the injury sustained, against the individual so inviting, and being in default for the neglect.” Tobin _v._ P. S. & P. R. R., 59 Maine, 188.

Several illustrations of the principle in its different applications will be found in Wharton on Negligence, § 826, and following.

The facts of the present case bring it within the rule thus enunciated. The way was opened by the defendant and his associates; primarily, though it was for his and their accommodation, yet, permissively, to the general travelling public. It has, in fact, been thus used, and known to the defendant to be thus used, with the acquiescence of himself and the others; and under these circumstances it may fairly be assumed to be an invitation to all who have occasion thus to use it; and hence a voluntary obligation is incurred to keep the bridges in a safe condition, so that no detriment may come to travellers.

Reparation is an inseparable incident of its construction, and, as the obligation to repair rests on no other, the liability for neglect must rest on those who put the bridges there and invited the public to use them.

It is true the way might have been closed, or the public prohibited by proper notices from passing over it, and no one could complain of the exercise of the right to do so; but as long as the way is left open and the bridges remain for the public to use, it is incumbent on those who constructed and maintain them to see that they are safe for all.

The law does not tolerate the presence over and along a way in common use, of structures apparently sound, but in fact ruinous, like man-traps, inviting travellers to needless disaster and injury. The duty of reparation should rest on some one, and it can rest on none others but those who built and used the bridges, and impliedly at least invite the public to use them also. For neglect of this duty they must abide the consequences.

We hold, therefore, that there is no error, and the judgment must be affirmed.

_No error._

_Affirmed._[144]

GALLAGHER _v._ HUMPHREY IN THE QUEEN’S BENCH, JUNE 14, 1862. _Reported in 6 Law Times Reports, New Series, 684; S. C. 10 Weekly Reporter, 664._[145]

Declaration. That the defendant was possessed of a crane fixed upon the New Hibernia Wharf, in a certain passage called Montague Close, Southwark, along which passage the plaintiff and others were permitted to pass, repass, and use the same as a way to certain wharves; that the crane was used by the defendant and his servants to raise and lower goods over the passage; that the plaintiff was, with the permission of the proprietors of the passage, lawfully passing along the said passage to the said wharves; yet the defendant, by himself and his servants, so negligently, &c. managed, directed, and conducted themselves that by and through such neglect, &c., a part of said crane broke, whilst the defendant, by his servants, was using the same, and certain goods fell upon the plaintiff whilst he was passing along, &c. and broke both his legs, &c.

Pleas: 1. Not guilty. 2. That the plaintiff and others were not permitted by the proprietors of the said passage to pass, repass, and use the said passage as a way from a highway to certain wharves, as in the declaration charged. 3. That the plaintiff was not, with the permission of the proprietors of the said passage, lawfully passing along the said passage from the said highway to the said wharves, as in the declaration alleged.

Issue on the said pleas.

At the trial before Blackburn, J., at the Croydon Summer Assizes, 1861, it was proved that the plaintiff, the son of a laborer employed in the erection of West Kent Wharf, under a contractor for the defendant’s father, had, on the day when the accident happened, taken his father’s dinner, according to his usual custom, to West Kent Wharf, and on his return was obliged to pass under a crane erected on the defendant’s (Hibernia) wharf, and there employed in lowering barrels of sugar. As he was passing the chain broke, and 12 cwt. of sugar fell upon him, inflicting the injuries complained of. The breakage of the chain was caused by negligence in the mode of applying the breaks, for, after the sugar had been attached the chain of the crane was allowed to run, and then the man suddenly put on the break and the jerk caused the weight to rise and fall and the chain to break. Montague Close is approached by steps from London Bridge, the gate to which was usually opened very early in the morning, and numbers of persons, to the knowledge of the defendant, used to pass along the passage, and no objection was made to persons using the way if on legitimate business. The judge left the following questions to the jury: 1st, Was the accident caused by the negligence of the defendant, or was it a pure accident over which no one could have any control? 2d, Could the boy by reasonable care have avoided the accident? 3d, Were the plaintiff and others permitted to go up Montague Close by the owners? 4th, Did the defendant on the evidence as disclosed tacitly give permission to the plaintiff to pass that way? 5th, Was the boy going to the wharf for a legitimate purpose? The jury having answered all the questions in favor of the plaintiff, a verdict was entered for him, with leave for the defendant to move to set it aside and enter a verdict on the second and third issues. The damages were assessed at £100.

A rule _nisi_ having been obtained calling on the plaintiff to show cause why the verdict should not be entered for the defendant on the second and third issues,—

_Shee_, Serjt., (_Grady_ with him,) showed cause. On the form of the rule as obtained the plaintiff is clearly entitled to succeed, as there was evidence that the defendant did by his acts tacitly give permission to the boy to pass along the close for a lawful purpose, and the jury have so found. But the plaintiff is also entitled to succeed on the broader ground. In Corby _v._ Hill, 4 C. B. N. S. 556, it was held that the defendant was liable for the negligence of his servant in placing materials in a dangerous position, and without notice, on a private road along which persons were accustomed to pass by leave of the owners; and in Southcote _v._ Stanley, 25 L. J. 339, Ex.,[146] a visitor to a person’s house was held entitled to recover for injuries caused by opening a glass door which was insecure, and which it was necessary for him to open. (He was then stopped by the Court.)

_Petersdorff_, Serjt., (_Bridge_ with him,) in support of the rule. Montague Close was the defendant’s private property, and no one had any right to be there without his express or implied permission. The lowering heavy goods from the warehouses by cranes is a manifestly dangerous business, and persons using the way took upon themselves whatever risks might be incidental to that business. In Hounsell _v._ Smyth, 7 C. B. N. S. 743, where the defendant was held not to be liable for leaving a quarry unfenced on waste land across which the public were allowed to pass, Williams, J., said: “No right is averred, but merely that the owners allowed persons, for diversion or business, to go across the waste without complaint; that is, that they were not so churlish as to interfere with any one who went across. But a person so using the waste has no right to complain of any excavation he may find there; he must accept the permission with its concomitant conditions, and it may be its perils.” [BLACKBURN, J. Have you any authority that persons so using the way take upon themselves the negligence of the servants about the place?] In Bolch _v._ Smith, 31 L. J. 201, Ex., where workmen employed in a dock-yard were permitted to use a place as a way on which revolving machinery had been erected, it was held that the right so to use the place was only the right not to be treated as a trespasser, and that there was no obligation to fence the machinery, and no liability for insufficiently fencing it. [COCKBURN, C. J. There was the ordinary state of things in that case, and no superadded negligence.]

COCKBURN, C. J. I doubt whether on the pleadings and this rule it is competent to enter into the question of negligence, and whether the whole matter does not turn upon the question whether permission was or was not given to the plaintiff to pass along the way. But I should be sorry to decide this case upon that narrow ground. I quite agree that a person who merely gives permission to pass and repass along his close is not bound to do more than allow the enjoyment of such permissive right under the circumstances in which the way exists; that he is not bound, for instance, if the way passes along the side of a dangerous ditch or along the edge of a precipice, to fence off the ditch or precipice. The grantee must use the permission as the thing exists. It is a different question, however, where negligence on the part of the person granting the permission is superadded. It cannot be that, having granted permission to use a way subject to existing dangers, he is to be allowed to do any further act to endanger the safety of the person using the way. The plaintiff took the permission to use the way subject to a certain amount of risk and danger, but the case assumes a different aspect when the negligence of the defendant—for the negligence of his servants is his—is added to that risk and danger. The way in question was a private one leading to different wharves. On part of the way a wharf was being constructed or repaired, and the plaintiff’s father was employed upon that work. It was the father’s habit not to go home to his meals, and the boy used to take them to him at the wharf, and on this occasion was passing along carrying his father’s dinner. The plaintiff was therefore passing along on a perfectly legitimate purpose, and the evidence is that the defendant permitted the way to be used by persons having legitimate business upon the premises. That being so, the defendant places himself by such permission under the obligation of not doing anything by himself or his servants from which injury may arise, and if by any act of negligence on the part of himself or his servants injury does arise, he is liable to an action. That is the whole question. The plaintiff is passing along the passage by permission of the defendant, and though he could only enjoy that permission under certain contingencies, yet when injury arises not from any of those contingencies, but from the superadded negligence of the defendant, the defendant is liable for that negligence as much as if it had been upon a public highway.

WIGHTMAN, J. The rule in this case was obtained on a very narrow ground. The declaration having alleged that the plaintiff and others were permitted to pass, repass, and use the way in question, and that the plaintiff was there with the permission of the proprietors of the passage lawfully passing along the passage, the defendant took issue on the fact whether such right to pass along the passage was permitted by the defendant. I think that there was evidence to show that the plaintiff had the permission of the defendant to use the way, and that he was lawfully there at the time of the accident. I entirely agree with my Lord Chief Justice that the plaintiff is also entitled to succeed on the larger ground. It appears to me that such a permission as is here alleged may be subject to the qualification that the person giving it shall not be liable for injuries to persons using the way arising from the ordinary state of things, or of the ordinary nature of the business carried on; but that is distinguishable from the case of injuries wholly arising from the negligence of that person’s servants.

CROMPTON, J. I am of the same opinion. I think we should look not only to the grounds upon which this rule was granted, but to the real defence set up by my brother Petersdorff. That defence is, in effect, that the plaintiff was using the way only under the qualified permission that he should be subject to any negligence of the plaintiff or his servants. If that defence be sustainable upon the general issue, or otherwise, we should see whether it is made out, and I am of opinion that it is not made out. I quite agree with what has fallen from my Lord and my brother Wightman. There may be a public dedication of a way, or a private permission to use it subject to a qualification; for example, subject to the danger arising from a stone step or a projecting house; and in such a case the public, or the persons using the way, take the right to use it subject to such qualification; but they are not thereby to be made subject to risks from what may be called active negligence. Whenever a party has a right to pass over certain ground, if injury occurs to him while so passing from negligence, he has a right to compensation. The argument of my brother Petersdorff fails therefore upon this ground. I think, too, that it is doubtful whether even the fact that the injured person was present unlawfully would excuse negligence, though it would be an element in determining what is negligence, and what is not. In the present case, however, that question does not arise, as there is no doubt the plaintiff was there upon a legitimate errand.

BLACKBURN, J. I am of the same opinion. If the substantial defence raised existed I am not sure but what it could be raised under the present pleadings, and the leave reserved; but at any rate I think we could amend the pleadings, if necessary, to raise it. But I do not think that any such defence exists here. The plaintiff seeks to recover for the negligence of the defendant. Now, the existence of negligence depends upon the duty of the party charged with it. I concur with the judgment of the Court of Exchequer in Bolch _v._ Smith that, when permission is given to a person to pass through a yard where dangerous machinery is at work, no duty is cast upon the person giving such permission to fence the machinery against the person permitted so to pass. That decision does not touch the present case, which falls rather within the remark then made by my brother Wilde: “If persons in the condition of the defendant had left anything like a trap in route used on the premises, I am far from saying they would not be liable.” This is more like the case of Corby _v._ Hill, where the matter placed upon the road is called a trap set for persons using it; and it is clear that when one gives another permission to pass over his land, it is his duty not to set a trap for him. Here the boy was passing upon a legitimate errand while the defendant’s servants were employed in lowering weights. If he had sustained any injury by a weight descending, without any negligence of the defendant’s servants, there is no doubt that he could not recover, but he suffered through the negligence of the persons lowering the bags, who were well aware that people were in the habit of passing below, and that danger would arise if the chain broke. I think, therefore, that it was the duty of the defendant and his servants to use ordinary care that the chain should not break. The jury have found that they neglected that duty, and I do not disagree with their finding. Our decision does not conflict with the judgment of the Court of Exchequer in Bolch v. Smith, or of the Common Pleas in Hounsell _v._ Smyth.

_Rule discharged._[147]

CARSKADDON _v._ MILLS IN THE APPELLATE COURT, INDIANA, MAY TERM, 1892. _Reported in 5 Indiana Appellate Court Reports, 22._

## Action for damage to plaintiff’s horse.[148] Trial by the court. The

case made by plaintiff’s evidence was in substance as follows:—

Defendant purchased a lot of land in October, 1890. Across this lot ran a road leading from one street to another, having a well-defined track made by wagons, horses, etc. The road was not a public highway, but had been used by the travelling public generally for a period of from five to fifteen years. Defendant’s lot was not fenced on the front and rear, the direction in which the road ran, but was fenced on the sides. After building a house on the lot, defendant “informed” the people travelling over this roadway not to use it any longer for such purpose; but no heed was paid to this. In the latter part of December, 1890, in order the more effectually to stop the travel over the lot, the defendant stretched a strand of barbed wire across the rear end of the lot, about three feet above the ground and at right angles, or nearly so, with said road. The entire fence was upon the appellee’s lot. No notice of any kind was given of this obstruction otherwise than as it advertised itself. The wire could not be seen in the dark of night and only a short distance—twenty to twenty-five feet—in daylight. There were no posts that could be seen from the road in the night when the accident hereinafter alluded to occurred. The appellant, who lived in that community, had frequently travelled over the road leading across this lot, and had no notice or knowledge of its being closed up with the wire. The last time before the accident when he passed over the lot was in September or October, 1890. At about 6 o’clock on the evening of January 1, 1891, after it had become too dark to see this wire, the appellant attempted to drive across this lot, in the road, to perform some legitimate errand on the other side. Not knowing of the presence of the wire, he drove his horse briskly ahead of him until the animal came up suddenly against the barbs, cutting a gash in its front leg four to five inches in length and two inches deep, severing the frontal muscle, from which the horse was injured, to the damage of the appellant.

When the appellant had closed his evidence, the learned judge observed that he had examined the law of the case, and saw no reason why a man could not fence in his own land, on his own ground, and that, [if] “a travelling man over such property taking the license into his own hand, without invitation or inducement, because others do so, suffers injury, he must put up with it.”

The judge ruled that plaintiff’s evidence did not make out a _prima facie_ right to recover; and found for defendant; denying plaintiff’s motion for a new trial. Plaintiff appealed.

REINHARD, C. J. [The learned judge said that a license may be created either by parol or by acquiescence in the use of the property for the purpose in question without objection. He _held_ that plaintiff was _prima facie_ a licensee, and not a trespasser.]

A mere license, however, to travel over the land of another may be revoked at any time at the pleasure of the licensor. Parish _v._ Kaspar, 109 Ind. 586; Simpson _v._ Wright, 21 Ill. App. 67; 13 Am. & Eng. Encyc. of Law, 555.

Where the license is once proved, however, or a _prima facie_ case of such license has been made out, it then devolves upon the party asserting a revocation to prove it. Blunt _v._ Barrett, 54 N. Y. Sup. 548.

Consequently if the license in the present case was claimed to have been discontinued or revoked, the burden was upon appellees to show that fact.

Was such revocation established, or was there any evidence from which the court could infer the same?

The transfer of the property, or the fencing of the same, may, under ordinary circumstances, be sufficient to amount to a revocation. Ordinarily a man has a right to use his own property as he pleases, but at the same time this gives him no right to use it to the detriment or injury of his neighbor. We think the erection of an ordinary fence around the lot, one that was not calculated to inflict injury, was proper and right, and it was the privilege of the appellees to thus close up their premises without asking of any one the permission to do so. But whenever they undertook to inclose their property under circumstances that made it dangerous to those likely to pass over it, and which the appellees must anticipate would incur injury by it, it became their duty, if such dangerous means must be employed to accomplish the purpose, to give some sort of warning.

Thus it was held in Houston, etc., R. W. Co. _v._ Boozer, 70 Tex. 530, that if the owner of the land has been accustomed to permit others to use his property to travel over to such an extent as to produce a confident belief that the use will not be objected to, he must not mislead them by failing to give a proper warning of his intention to recall the permission. See, also, Cornish _v._ Stubbs, 5 L. R. C. P. 334; Mellor _v._ Watkins, L. R. 9 Q. B. 400.

While we grant the clear right of the appellees to revoke the license, we assert as emphatically that they must do so in a manner not calculated under ordinary circumstances to inflict injury unnecessarily. Although a licensee acquires no interest, as the term is usually employed, nor property right in the real estate over which he is allowed to travel, he yet has the right not to be wilfully or even recklessly injured by the acts of the owner. It cannot be said truthfully that the owner does not owe _some_ duty to a licensee.

At the time of the stretching of the wire the appellees must have known that the public would continue to travel over this lot until in some way prevented from doing so. They must have known further that a single strand of wire, without posts at the roadside, or other means calculated to attract the attention of passers-by, could not be seen in the dark, and was a dangerous obstruction, liable to injure those coming in contact with it. They must, therefore, have anticipated just such results as the one that happened to the appellant. It was their clear duty, consequently, in case they desired to make use of the dangerous wire, to shut out the public from going over their lot, to give some warning by which the presence of the wire might be detected. Had they used an ordinary fence, one constructed out of material not necessarily dangerous to life and limb even if encountered in the dark, the case might be otherwise, and notice might not have been necessary. But the stretching of the barbed wire, without notice, under the circumstances was, we think, a plain violation of duty.

The case made by the evidence is one of more than mere passive negligence. In that class of cases it is well enough settled that there is no liability to a mere licensee. Thus where the owner of premises inadvertently leaves unguarded a pit, hatchway, trap-door, cistern, or other dangerous opening, and one who is present merely by permission and not by invitation, express or implied, falls into the opening and is injured, he cannot recover, as, in such case, he enjoys the license subject to the risks. Thiele _v._ McManus, 3 Ind. App. 132. But while an owner may not be liable to one who is thus injured by mere inattention and neglect of the owner, there could be no doubt of his liability if it were shown that the obstruction was placed there purposely to keep the licensee from entering the premises, or for the very purpose of inflicting injury if an attempt be made to cross. As well might an owner give permission to his neighbor to travel over his field and then set a trap to hurt him.

Where the owner of ground digs a pit or erects other dangerous obstructions at a place where it is probable that persons or animals may go and become injured, without using proper care to guard the same, it is well settled in this state that there is a liability, and that the owner must respond in damages for any injury incurred by such negligence. Young _v._ Harvey, 16 Ind. 314; Graves _v._ Thomas, 95 Ind. 361; Mayhew _v._ Burns, 103 Ind. 328; Penso _v._ McCormick, 125 Ind. 116.

A barbed wire fence is not of itself an unlawful one, and the building of such along a public highway is not necessarily a negligent act; but yet, even in such case as that, there may be circumstances under which a person building such a fence, in a negligent manner, will be held liable for damages caused thereby. Sisk _v._ Crump, 112 Ind. 504. All these cases proceed upon the assumption that the party whose negligence caused the injury owed the other some duty which he failed to perform, for, after all, negligence is nothing more nor less than the failure to discharge some legal duty or obligation.

Even trespassers have some rights an owner is bound to respect. If a person, without permission, should attempt to cross the field of another, and tramp down his growing grain, it would not be contended, we apprehend, that this gave the owner any right to kill the trespasser, or even to seriously injure him unnecessarily. The use of spring guns, traps, and other devices to catch and injure trespassing persons or animals has been condemned both in this country and in England. Hooker _v._ Miller, 37 Iowa, 613; Deane _v._ Clayton, 7 Taunt. 489. If such means may not be employed against trespassers, we do not see upon what principle it can be held that it is proper to use them against one who has a permissive right to go upon the property where they are placed.

While in the case at bar there may be no proof of intentional injury, the facts, we think, bring the case within the principle declared in Young _v._ Harvey, _supra_; Graves _v._ Thomas, _supra_; Penso _v._ McCormick, _supra_; and Sisk _v._ Crump, _supra_.

The court should have sustained the motion for a new trial.

_Judgment reversed._[149]

INDERMAUR _v._ DAMES IN THE COMMON PLEAS, FEBRUARY 26, 1866. _Reported in Law Reports, 1 Common Pleas, 274._

The judgment of the Court (ERLE, C. J., WILLES, KEATING, and MONTAGUE SMITH, JJ.) was delivered by[150]

WILLES, J. This was an action to recover damages for hurt sustained by the plaintiff’s falling down a shaft at the defendant’s place of business, through the actionable negligence, as it was alleged, of the defendant and his servants.

At the trial before the Lord Chief Justice at the sittings here after Michaelmas Term, the plaintiff had a verdict for 400_l._ damages, subject to leave reserved.

A rule was obtained by the defendant in last term to enter a nonsuit, or to arrest the judgment, or for a new trial because of the verdict being against the evidence.

The rule was argued during the last term, before Erle, C. J., Keating and Montague Smith, JJ., and myself, when we took time to consider. We are now of opinion that the rule ought to be discharged.

It appears that the defendant was a sugar-refiner, at whose place of business there was a shaft four feet three inches square, and twenty-nine feet three inches deep, used for moving sugar. The shaft was necessary, usual, and proper in the way of the defendant’s business. Whilst it was in use, it was necessary and proper that it should be open and unfenced. When it was not in use, it was sometimes necessary, with reference to ventilation, that it should be open. It was not necessary that it should, when not in use, be unfenced; and it might then without injury to the business have been fenced by a rail. Whether it was usual to fence similar shafts when not in use did not distinctly appear; nor is it very material, because such protection was unquestionably proper, in the sense of reasonable, with reference to the safety of persons having a right to move about upon the floor where the shaft in fact was, because in its nature it formed a pitfall there. At the time of the accident it was not in use, and it was open and unfenced.

The plaintiff was a journeyman gas-fitter in the employ of a patentee who had supplied the defendant with his patent gas-regulator, to be paid for upon the terms that it effected a certain saving: and, for the purpose of ascertaining whether such a saving had been effected, the plaintiff’s employer required to test the action of the regulator. He accordingly sent the plaintiff to the defendant’s place of business for that purpose; and, whilst the plaintiff was engaged upon the floor where the shaft was, he (under circumstances as to which the evidence was conflicting, but) accidentally, and, as the jury found, without any fault or negligence on his part, fell down the shaft, and was seriously hurt.

It was argued, that, as the defendant had objected to the plaintiff’s working at the place upon a former occasion, he (the plaintiff) could not be considered as having been in the place with the defendant’s leave at the time of the accident: but the evidence did not establish a peremptory or absolute objection to the plaintiff’s being employed, so as to make the sending of him upon the occasion of the accident any more against the defendant’s will than the sending of any other workman: and the employment, and the implied authority resulting therefrom to test the apparatus were not of a character involving personal preference (_dilectus personæ_), so as to make it necessary that the patentee should himself attend. It was not suggested that the work was not journeyman’s work.

It was also argued that the plaintiff was at best in the condition of a bare licensee or guest who, it was urged, is only entitled to use the place as he finds it, and whose complaint may be said to wear the color of ingratitude, so long as there is no design to injure him: see Hounsell _v._ Smyth, 7 C. B. N. S. 371, 29 L. J. (C. P.) 203.

We think this argument fails, because the capacity in which the plaintiff was there was that of a person on lawful business, in the course of fulfilling a contract in which both the plaintiff and the defendant had an interest, and not upon bare permission. No sound distinction was suggested between the case of the servant and the case of the employer, if the latter had thought proper to go in person; nor between the case of a person engaged in doing the work for the defendant pursuant to his employment, and that of a person testing the work which he had stipulated with the defendant to be paid for if it stood the test; whereby impliedly the workman was to be allowed an on-stand to apply that test, and a reasonable opportunity of doing so. Any duty to enable the workman to do the work in safety, seems equally to exist during the accessory employment of testing: and any duty to provide for the safety of the master workman, seems equally owing to the servant workman whom he may lawfully send in his place.

It is observable, that, in the case of Southcote _v._ Stanley, 1 H. & N. 247, 25 L. J. (Ex.) 339, upon which much reliance was properly placed for the defendant, Alderson, B., drew the distinction between a bare licensee and a person coming on business, and Bramwell, B., between

## active negligence in respect of unusual danger known to the host and not

to the guest, and a bare defect of construction or repair, which the host was only negligent in not finding out or anticipating the consequence of.

There is considerable resemblance, though not a strict analogy, between this class of cases and those founded upon the rule as to voluntary loans and gifts, that there is no remedy against the lender or giver for damage sustained from the loan or gift, except in case of unusual danger known to and concealed by the lender or giver. Macarthy _v._ Younge, 6 H. & N. 329, 30 L. J. (Ex.) 227. The case of the carboy of vitriol[151] was one in which this Court held answerable the bailor of an unusually dangerous chattel, the quality of which he knew, but did not tell the bailee, who did not know it, and, who as a proximate consequence of his not knowing, and without any fault on his part, suffered damage.

The cases referred to as to the liability for accidents to servants and persons employed in other capacities in a business or profession which necessarily and obviously exposes them to danger, as in Seymour _v._ Maddox, 16 Q. B. 326, also have their special reasons. The servant or other person so employed is supposed to undertake not only all the ordinary risks of the employment into which he enters, but also all extraordinary risks which he knows of and thinks proper to incur, including those caused by the misconduct of his fellow-servants, not however including those which can be traced to mere breach of duty on the part of the master. In the case of a statutory duty to fence, even the knowledge and reluctant submission of the servant who has sustained an injury, are held to be only elements in determining whether there has been contributory negligence: how far this is the law between master and servant, where there is danger known to the servant, and no statute for his protection, we need not now consider, because the plaintiff in this case was not a servant of the defendant, but the servant of the patentee. The question was adverted to, but not decided, in Clarke _v._ Holmes, 7 H. & N. 937, 31 L. J. (Ex.) 356.[152]

The authorities respecting guests and other bare licensees, and those respecting servants and others who consent to incur a risk, being therefore inapplicable, we are to consider what is the law as to the duty of the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation, express or implied. The common case is that of a customer in a shop: but it is obvious that this is only one of a class; for, whether the customer is actually chaffering at the time, or actually buys or not, he is, according to an undoubted course of authority and practice, entitled to the exercise of reasonable care by the occupier to prevent damage from unusual danger, of which the occupier knows or ought to know, such as a trap-door left open, unfenced, and unlighted: Lancaster Canal Company _v._ Parnaby, 11 Ad. & E. 223, 3 P. & D. 162; _per cur._ Chapman _v._ Rothwell, E. B. & E. 168, 27 L. J. (Q. B.) 315, where Southcote _v._ Stanley, 1 H. & N. 247, 25 L. J. (Ex.) 339, was cited, and the Lord Chief Justice, then Erle, J., said: “The distinction is between the case of a visitor (as the plaintiff was in Southcote _v._ Stanley), who must take care of himself, and a customer, who, as one of the public, is invited for the purposes of business carried on by the defendant.” This protection does not depend upon the fact of a contract being entered into in the way of the shopkeeper’s business during the stay of the customer, but upon the fact that the customer has come into the shop in pursuance of a tacit invitation given by the shopkeeper, with a view to business which concerns himself. And, if a customer were, after buying goods, to go back to the shop in order to complain of the quality, or that the change was not right, he would be just as much there upon business which concerned the shopkeeper, and as much entitled to protection during this accessory visit, though it might not be for the shopkeeper’s benefit, as during the principal visit, which was. And if, instead of going himself, the customer were to send his servant, the servant would be entitled to the same consideration as the master.

The class to which the customer belongs includes persons who go not as mere volunteers, or licensees, or guests, or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier, and upon his invitation, express or implied.

And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact.

In the case of Wilkinson _v._ Fairrie, 1 H. & C. 633, 32 L. J. (Ex.) 73, relied upon for the defendant, the distinction was pointed out between ordinary accidents, such as falling down stairs, which ought to be imputed to the carelessness or misfortune of the sufferer, and accidents from unusual, covert danger, such as that of falling down into a pit.

It was ably insisted for the defendant that he could only be bound to keep his place of business in the same condition as other places of business of the like kind, according to the best known mode of construction. And this argument seems conclusive to prove that there was no absolute duty to prevent danger, but only a duty to make the place as little dangerous as such a place could reasonably be, having regard to the contrivances necessarily used in carrying on the business. But we think the argument is inapplicable to the facts of this case: first, because it was not shown, and probably could not be, that there was any usage never to fence shafts; secondly, because it was proved, that, when the shaft was not in use, a fence might be resorted to without inconvenience; and no usage could establish that what was in fact unnecessarily dangerous was in law reasonably safe, as against persons towards whom there was a duty to be careful.

Having fully considered the notes of the Lord Chief Justice, we think there was evidence for the jury that the plaintiff was in the place by the tacit invitation of the defendant, upon business in which he was concerned; that there was by reason of the shaft unusual danger known to the defendant; and that the plaintiff sustained damage by reason of that danger, and of the neglect of the defendant and his servants to use reasonably sufficient means to avert or warn him of it: and we cannot say that the proof of contributory negligence was so clear that we ought on this ground to set aside the verdict of the jury.

As for the argument that the plaintiff contributed to the accident by not following his guide, the answer may be that the guide, knowing the place, ought rather to have waited for him; and this point, as matter of fact, is set at rest by the verdict.

For these reasons, we think there was evidence of a cause of action in respect of which the jury were properly directed; and, as every reservation of leave to enter a nonsuit carries with it an implied condition that the Court may amend, if necessary, in such a manner as to raise the real question, leave ought to be given to the plaintiff, in the event of the defendant desiring to appeal or to bring a writ of error, to amend the declaration by stating the facts as proved,—in effect, that the defendant was the occupier of and carried on business at the place; that there was a shaft, very dangerous to persons in the place, which the defendant knew and the plaintiff did not know; that the plaintiff, by invitation and permission of the defendant, was near the shaft, upon business of the defendant, in the way of his own craft as a gas-fitter, for hire, &c., stating the circumstances, the negligence, and that by reason thereof the plaintiff was injured. The details of the amendment can, if necessary, be settled at chambers.

As to the motion to arrest the judgment, for the reasons already given, and upon condition that an amendment is to be made if and when required by the defendant, it will follow the fate of the motion to enter a nonsuit.

The other arguments for the defendant, to which we have not particularly adverted, were no more than objections to the verdict as being against the evidence: but it would be wrong to grant a new trial without a reasonable expectation that another jury might take a different view of the facts; and, as the Lord Chief Justice does not express any dissatisfaction with the verdict, the rule upon this, the only remaining ground, must also be discharged.

_Rule discharged._[153]

Affirmed in Exchequer Chamber, L. R. 2 C. P. 311.

McNEE _v._ COBURN TROLLEY TRACK COMPANY SUPREME JUDICIAL COURT, MASSACHUSETTS, FEBRUARY 24, 1898. _Reported in 170 Massachusetts Reports, 283._

Tort, for personal injuries occasioned to the plaintiff by the fall of an elevator upon which he was riding while in the defendant’s employ. Trial in the Superior Court, before Mason, C. J., who directed the jury to return a verdict for the defendant; and reported the case for the determination of this court. If the case should have been submitted to the jury, judgment was to be entered for the plaintiff in a sum named; otherwise, judgment on the verdict. The facts sufficiently appear in the opinion.

The case was submitted on briefs to all the justices.

ALLEN, J. The general condition of the elevator was such that a jury might find that the defendant would be negligent in continuing its use for carrying workmen up and down while engaged in their work, if this was done without warning them of the risk. It is true that the

## particular defect which caused the accident was not open to observation

or easy to discover. But there was evidence tending to show that the accident was caused by the use of the elevator while it was in a condition which rendered it unsuitable for use, and that the defendant was fairly put upon inquiry as to its safety; and that the defendant’s duty in this respect was different from and greater than that of the workmen themselves.

The question then remains whether the posting of the notices in the elevator[154] showed such a performance by the defendant of its duty of warning or cautioning the workmen, or such contributory negligence or assumption of the risk on the part of the plaintiff, as to entitle the defendant to have the case withdrawn from the jury. While upon the evidence reported a verdict for the defendant would be more satisfactory, we are unable to hold that the defendant was entitled to such verdict as a matter of law. As a general rule, the sufficiency of such warning or caution is a question of fact for the jury. Indermaur _v._ Dames, L. R. 1 C. P. 274; S. C. L. R. 2 C. P. 311. It is true that the plaintiff was not at liberty to shut his eyes in order to avoid reading a plain notice of warning. If it be assumed that the plaintiff must be held chargeable with a knowledge of the contents of the notice, or at least that the defendant performed its duty of cautioning the workmen by posting the notices in the elevator, we think the plaintiff still had the right to go to the jury upon the question whether the notices remained in force at the time of the accident, or had become a dead letter. There was evidence tending to show that the notices were put in the elevator a long time before the accident by a former treasurer whose connection with the company had then ceased, that they had become soiled and somewhat indistinct and torn, and that all of the defendant’s workmen, including the general superintendent of the building, were in the regular habit of using the elevator to carry them up and down, and had been so for some months prior to the accident. There was room for a legitimate argument that the defendant could not have intended to keep such a rule in force forever, and to furnish an elevator for permanent use by the men at their own sole risk; and that the defendant expected the men to use it while they were engaged in its work, and that it was for the defendant’s advantage that they should do so, from the saving of time thereby secured. It might be found that the plaintiff, even if he knew of the terms of the notice, might nevertheless assume that its force had ceased.

If one who has posted a notice of entire prohibition permits it to be habitually disregarded, as, for instance, a notice not to ride on the platform of a street railway car, or in the baggage car of a train, a practical invitation to violate it may be inferred from habitual usage which is known to him. Long continued practice to the contrary may have the effect to supersede or show a waiver of the rule. O’Donnell _v._ Allegheny Valley Railroad, 59 Penn. St. 239; Pennsylvania Railroad _v._ Langdon, 92 Penn. St. 21; Waterbury _v._ New York Central & Hudson River Railroad, 17 Fed. Rep. 671. The notice in the present case was not one of entire prohibition, but, in the opinion of a majority of the court, the plaintiff upon the evidence had a right to go to the jury upon the question whether it still remained in force; and, according to the terms of the report, there must be

_Judgment for the plaintiff._[155]

GARFIELD COAL CO. _v._ ROCKLAND LIME CO. SUPREME JUDICIAL COURT, MASSACHUSETTS, JUNE 23, 1903. _Reported in 184 Massachusetts Reports, 60._

Tort, by the owner of the coal barge Western Belle, for injury to that vessel by grounding on a ledge of rock embedded in the mud at the bottom of the defendant’s dock at Rockland, Maine.

In the Superior Court the case was tried by a judge without a jury.

“It appeared at the trial that defendant was part owner of a dock, and used it for the discharge of cargoes of coal consigned to it. Plaintiff had sold coal to the defendant, and sent it a barge loaded therewith.”[156]

The plaintiff requested the judge to make certain rulings, including the following:—

“4. It is not necessary for the plaintiff to show that the defendant knew of the ledge; it is sufficient if its existence could have been discovered by reasonable diligence.”

The judge refused to make any of the rulings, and found for the defendant. The plaintiff excepted.

LATHROP, J.... The general rules of law which are applicable in cases of this character are the same in England and in this country, and are the same at common law and in admiralty. They are as well stated in the case of Nickerson _v._ Tirrell, 127 Mass. 236, 239, as perhaps in any case: “The owner or occupant of a dock is liable in damages to a person who, by his invitation express or implied, makes use of it, for an injury caused by any defect or unsafe condition of the dock which the occupant negligently causes or permits to exist, if such person was himself in the exercise of due care. Such occupant is not an insurer of the safety of his dock,[157] but he is required to use reasonable care to keep his dock in such a state as to be reasonably safe for use by vessels which he invites to enter it, or for which he holds it out as fit and ready. If he fails to use such due care, if there is a defect which is known to him, or which by the use of ordinary care and diligence should be known to him, he is guilty of negligence and liable to the person who, using due care, is injured thereby. Wendell _v._ Baxter, 12 Gray, 494; Carleton _v._ Franconia Iron & Steel Co., 99 Mass. 216; Thompson _v._ Northeastern Railway, 2 B. & S. 106; Mersey Docks _v._ Gibbs, L. R. 1 H. L. 93.” Other cases bearing upon this point are: Smith _v._ Burnett, 173 U. S. 430; Barber _v._ Abendroth, 102 N. Y. 406; Barrett _v._ Black, 56 Maine, 498; Sawyer _v._ Oakman, 1 Lowell, 134, s. c. 7 Blatchf. 290; The John A. Berkman, 6 Fed. Rep. 535; Pennsylvania Railroad _v._ Atha, 22 Fed. Rep. 920; Smith _v._ Havemeyer, 36 Fed. Rep. 927; Manhattan Transportation Co. _v._ Mayor, 37 Fed. Rep. 160; Union Ice Co. _v._ Crowell, 55 Fed. Rep. 87. The rule is the same in England. Gibbs _v._ Liverpool Docks, 3 H. & N. 164; s. c. _nom._ Mersey Docks _v._ Gibbs, 11 H. L. Cas. 686, and L. R. 1 H. L. 93; The Moorcock, 13 P. D. 157, and 14 P. D. 64.

* * * * *

It is clear that the vessel was in the defendant’s dock on business, and was, therefore, there by invitation. The judge has found, and the evidence shows, that the injury was caused by a ledge of rocks embedded in the mud at the bottom of the dock. The questions of fact which he did not pass upon are whether the master was in the exercise of due care, and whether the defendant knew of the defect or could by the exercise of reasonable care and diligence have ascertained its existence.

* * * * *

The fourth request should have been given. See cases cited above.

_Exceptions sustained._[158]

INDIANAPOLIS STREET RAILWAY COMPANY _v._ DAWSON APPELLATE COURT, INDIANA, NOVEMBER 17, 1903. _Reported in 31 Indiana Appellate Court Reports, 605._

From Superior Court of Marion County; Vincent G. Clifford, Special Judge.

## Action by George J. Dawson against the Indianapolis Street Railway

Company. From a judgment for plaintiff, defendant appeals.

ROBY, J. Action by appellee. Verdict and judgment for $500. Demurrers to first and second paragraphs of complaint overruled. Motion for a new trial overruled.

It is averred in the first paragraph of complaint, in substance, as extracted from a multitude of words, that appellant was on August 25, 1901, a corporation operating a street railway system in Indianapolis and was a common carrier for hire; that it owned a park near said city, and maintained certain attractions therein to induce persons to ride on its cars, inviting them to said park; that on the day named it gave a free band concert therein, the same having been extensively advertised prior thereto; that on said day appellee, accompanied by a lady, took passage upon one of its regular cars, and was conveyed to said park; that a large number of persons were daily transported thereto, among them a large number of lawless persons who were hostile to colored people, of whom appellee was one, their names being unknown to plaintiff, and who had long before said day entered into a conspiracy “to suppress, molest, assault, and insult colored people generally who might visit said park;” that in pursuance of such conspiracy said persons assaulted and beat appellee, and drove him from the park; that he and his companion demeaned themselves in a ladylike and gentlemanly manner, but upon arriving at the park were set upon by a large number of white boys and young men, appellee being assaulted and beaten by them; that appellant had, and had had for a long time prior to said day, full notice and knowledge of said conditions, and of the unlawful purposes aforesaid, and of acts of violence committed thereunder, but took no steps to prevent such conduct; that early in the afternoon of said day said lawless men and boys began marching and drilling openly in said park preparatory to an attack upon any colored male person who should be found there later, appellant taking no steps to prevent such conduct or to notify colored people of the danger, although it had knowledge thereof; that neither appellant nor its officers made any objection to the open and notorious gathering of white men and boys for the unlawful purpose stated; that it was negligent and indifferent in not employing and using a sufficient number of guards and policemen to maintain the peace; that two of its guards or policemen aided and abetted the wrong done appellee by standing by when he was being unmercifully beaten by said crowd of lawless white men and boys, and offering him no assistance, although they were able to do so, and could have prevented injury to him. “Wherefore, by reason of the matters therein stated, the plaintiff has been damaged,” etc. The second paragraph of complaint is somewhat more extended than the first one, but for the purpose of this opinion the statement made is sufficient.

The pleading charges appellant with notice of the alleged conspiracy, with acquiescence therein, and, by its guards or policemen, with passive

## participation in the actual assault made upon appellee. “When one

expressly or by implication invites others to come upon his premises, whether for business or any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the place reasonably safe for the visit.” Cooley, Torts (2d ed.), 718; Howe _v._ Ohmart, 7 Ind. App. 32, 38; Richmond, etc., R. Co. _v._ Moore, 94 Va. 493, 37 L. R. A. 258; North Manchester, etc., Assn. _v._ Wilcox, 4 Ind. App. 141; Penso _v._ McCormick, 125 Ind. 116, 21 Am. St. 211.

No case has been cited or found where the premises upon which the injury complained of occurred, and to which the complainant came by invitation, were made unsafe through a conspiracy of the nature set up herein. Danger usually has been attributed to some defect in the premises themselves. But as a matter of principle it is quite as reprehensible to invite one knowing an enemy is awaiting him with the intent to assault and beat him as it would be to invite him without having made the floor or the stairway secure. One attending an agricultural fair in response to a general invitation extended to the public has been awarded damages against the association where his horse was killed by target shooting upon a part of the ground allowed for such purpose. Conradt _v._ Clauve, 93 Ind. 476, 47 Am. Rep. 388.

Recoveries have also been sustained: When spectators rushed upon a race-track, causing a collision between horses being driven thereon. North Manchester, etc., Assn. _v._ Wilcox, 4 Ind. App. 141. When an opening was left in a fence surrounding a race-track through which one of the horses, running, went among the spectators. Windeler _v._ Rush County Fair Assn., 27 Ind. App. 92. Where horses were started on a race-track in opposite directions at the same time, causing collision. Fairmount, etc., Assn. _v._ Downey, 146 Ind. 503. Where a horse with a vicious habit of track bolting was permitted to run in a race, such horse bolting the track, causing injury. Lane _v._ Minnesota, etc., Soc., 62 Minn. 175, 29 L. R. A. 708. Recognizing the rule of reasonable care to make the premises safe, a recovery was denied in the absence of any evidence of the immediate cause of a horse running through the crowds. Hart _v._ Washington Park Club, 157 Ill. 9, 29 L. R. A. 492. Where a street car company maintained a park as a place of attraction for passengers over its line, the falling of a pole used by one making a balloon ascension, under a contract, injuring a bystander, recovery was allowed, the rule being announced that the company must use proper care to protect its patrons from danger while on its grounds. Richmond, etc., R. Co. _v._ Moore, 94 Va. 493, 37 L. R. A. 258. Where a street car company maintained a large stage for exhibitions, in a pleasure resort owned by it, and made a written contract with a manager, by which the latter furnished various entertainments, among which was target shooting, one injured by a split bullet was allowed to recover, it being held that he might safely rely on those who provided the exhibition and invited his attendance to take due care to make the place safe from such injury as he received, the question of due care being one for the jury. Thompson _v._ Lowell, etc., St. R. Co., 170 Mass. 577, 40 L. R. A. 345; Curtis _v._ Kiley, 153 Mass. 123.

The duty of common carriers to protect their passengers from injury on account of unlawful violence by persons not connected with their service has frequently furnished material for judicial consideration. The New Jersey Court of Errors and Appeals approved an exhaustive and carefully considered opinion delivered by the Supreme Court of that State to the effect that a passenger who, while attempting to have her baggage checked, was knocked down and injured by cabmen, in no sense servants of the carrier, scuffling on a passageway under its control, might recover against it. Exton _v._ Central R. Co., 63 N. J. L. 356, 56 L. R. A. 508. In what seems to have been a pioneer case, it was held by the Supreme Court of Pennsylvania in 1866, that it was the duty of the trainmen on a passenger-train to exert the forces at their disposal to prevent injury to passengers by others fighting in the car. Pittsburgh, etc., R. Co. _v._ Hinds, 53 Pa. St. 512. Ten years later the Supreme Court of Mississippi, after very exhaustive arguments by eminent counsel of national reputation, reached the same conclusion. New Orleans, etc., R. Co. _v._ Burke, 53 Miss. 200.

Without further elaboration it may safely be said that the unusual character of an alleged peril, from which it is averred the appellant did not use due care to protect its visitors, does not affect the right of recovery, it being otherwise justified. The demurrers were therefore correctly overruled.

Evidence was introduced of other prior assaults at said park upon colored persons, and articles previously published by daily newspapers in the city describing such occurrences were also admitted. In order to determine whether appellant used due care, it was essential to show its knowledge or means of information relative to the conditions alleged to exist, rendering it dangerous for appellee to visit the park. The evidence of similar occurrences was competent as tending to show notice of the conditions. Toledo, etc., R. Co. _v._ Milligan, 2 Ind. App. 578; City of Delphi _v._ Lowery, 74 Ind. 520, 39 Am. Rep. 98; City of Goshen _v._ England, 119 Ind. 368, 375.

The facts upon which appellant’s liability depends otherwise than heretofore considered were questions for the determination of the jury. There was evidence tending to establish, and from which the jury might properly find, the existence of such facts.

Appellant and its officers appear to have displayed indifference to the conditions existing which it and they could not well help knowing. This may have been due to the idea, sometimes entertained, that as to acts of lawlessness it is a sufficient duty of citizenship to be indifferent. Such idea is entirely erroneous.

_Judgment affirmed._[159]

SWEENY _v._ OLD COLONY RAILROAD COMPANY SUPREME JUDICIAL COURT, MASSACHUSETTS, JANUARY TERM, 1865. _Reported in 10 Allen, 368._

Tort to recover damages for a personal injury sustained by being run over by the defendants’ cars, while the plaintiff was crossing their railroad by license, on a private way leading from South Street to Federal Street, in Boston.

At the trial in this Court, before Chapman, J., it appeared that this private way, which is called Lehigh Street, was made by the South Cove Corporation for their own benefit, and that they own the fee of it; that it is wrought as a way, and buildings are erected on each side of it, belonging to the owners of the way, and there has been much crossing there by the public for several years. The defendants, having rightfully taken the land under their charter, not subject to any right of way, made a convenient plank-crossing and kept a flagman at the end of it on South Street, partly to protect their own property, and partly to protect the public. They have never made any objection to such crossing, so far as it did not interfere with their cars and engines. There are several tracks at the crossing. The only right of the public to use the crossing is under the license implied by the facts stated above.

On the day of the accident, the defendants had a car at their depot which they had occasion to run over to their car house. It was attached to an engine and taken over the crossing, and to a proper distance beyond the switch. The coupling-pin was then taken out, the engine reversed, and it was moved towards the car house by the side track. The engine was provided with a good engineer and fireman, and the car with a brakeman; the bell was constantly rung, and the defendants were not guilty of any negligence in respect to the management of the car or engine.

As the engine and car were coming from the depot, the plaintiff, with a horse and a wagon loaded with empty beer barrels, was coming down South Street from the same direction. There was evidence tending to show that, as he approached the crossing, the flagman, who was at his post, made a signal to him with his flag to stop, which he did; that, in answer to an inquiry by the plaintiff whether he could then cross, he then made another signal with his flag, indicating that it was safe to cross; that the plaintiff started and attempted to cross, looking straight forward; that he saw the car coming near him as it went towards the car house; and that he jumped forward from his wagon, and the car knocked him down and ran over him and broke both his legs. It struck the fore-wheel of his wagon and also his horse. If he had remained in his wagon, or had not jumped forwards, or had kept about the middle of the crossing, the evidence showed that he would not have been injured personally. His wagon was near the left-hand side of the plank-crossing as he went.

The defendants contended that, even if the plaintiff used ordinary care, and if the flagman carelessly and negligently gave the signal that he might cross, when in fact it was unsafe to do so on account of the approaching car, the plaintiff was not entitled to recover, because the license to people to use the crossing was not a license to use it at the risk of the defendants, but to use it as they best could when not forbidden, taking care of their own safety, and going at their own risk; and also, that if the flagman made a signal to the plaintiff that he might cross, he exceeded his authority.

But the evidence being very contradictory as to the care used by the plaintiff, and also as to the care used by the flagman, the judge ruled, for the purpose of taking a verdict upon these two facts, that the defendants had a right to use the crossing as they did on this occasion, and that they were not bound to keep a flagman there; yet, since they did habitually keep one there, they would be responsible to the plaintiff for the injury done to him by the car, provided he used due care, if he was induced to cross by the signal made to him by the flagman, and if that signal was carelessly or negligently made at a time when it was unsafe to cross on account of the movement of the car.

The jury returned a verdict for the plaintiff for $7500; and the case was reserved for the consideration of the whole Court.

_J. G. Abbott_ and _P. H. Sears_, for the defendants. The defendants had, for all purposes incident to the complete enjoyment of their franchise, the right of exclusive possession and use of the place where the accident happened, against the owners of the fee, and still more against all other persons. Hazen _v._ Boston & Maine Railroad, 2 Gray, 574; Brainard _v._ Clapp, 10 Cush. 6; Gen. Stat. c. 63, §§ 102, 103. The defendants were not bound to keep a flagman there, or exercise the other precautions prescribed for the crossing of highways or travelled places. Gen. Stat. c. 63, §§ 64–66, 83–91; Boston & Worcester Railroad _v._ Old Colony Railroad, 12 Cush. 608. The license or permission, if any, to the plaintiff to pass over the premises did not impose any duty on the defendants, but he took the permission, with its concomitant perils, at his own risk. Howland _v._ Vincent, 10 Met. 371, 374; Scott _v._ London Docks Co., 11 Law Times (N. S.), 383; Chapman _v._ Rothwell, El. Bl. & El. 168; Southcote _v._ Stanley, 1 Hurlst. & Norm. 247; Hounsell _v._ Smyth, 7 C. B. (N. S.) 729, 735, 742; Binks _v._ South Yorkshire Railway, &c., 32 Law Journ. (N. S.) Q. B. 26; Blithe _v._ Topham, 1 Rol. Ab. 88; S. C. 1 Vin. Ab. 555, pl. 4; Cro. Jac. 158. The defendants did not hold out to the plaintiff an invitation to pass over. Hounsell _v._ Smyth and Binks _v._ South Yorkshire Railway, above cited. The allowing or making of such private crossing was not in itself such an invitation, and did not involve the duty of such precautions. The keeping of a flagman there was wholly for the purpose of preventing persons from crossing, not for the purpose of holding out invitations at any time. The signal that the plaintiff might cross was in answer to his inquiry, and was, at most, only revoking the prohibition, or granting permission; it was not holding out an invitation. The duty of the flagman was simply to warn persons against crossing; and if the flagman held out an invitation or even gave permission to the plaintiff to cross, he went beyond the scope of his employment, and the defendants are not liable on account thereof. Lygo _v._ Newbold, 9 Exch. 203; Middleton _v._ Fowle, 1 Salk. 282. Even if the defendants had carelessly held out an invitation to the plaintiff to cross, still they would not be liable; for the report shows that after such supposed invitation the plaintiff might, by the exercise of ordinary care, have avoided the injury; that the plaintiff was himself at the time in the wrong; and that his own negligence and fault contributed to the accident. Todd _v._ Old Colony & Fall River Railroad, 7 Allen, 207; S. C. 3 Allen, 18, and cases cited; Denny _v._ Williams, 5 Allen, 1, and cases cited; Spofford _v._ Harlow, 3 Allen, 177, and cases cited.

BIGELOW, C. J. This case has been presented with great care on the part of the learned counsel for the defendants, who have produced before us all the leading authorities bearing on the question of law which was reserved at the trial. We have not found it easy to decide on which side of the line which marks the limit of the defendant’s liability for damages caused by the acts of their agents, the case at bar falls. But on careful consideration we have been brought to the conclusion that the rulings at the trial were right, and that we cannot set aside the verdict for the plaintiff on the ground that it was based on erroneous instructions in matter of law.

In order to maintain an action for an injury to person or property by reason of negligence or want of due care, there must be shown to exist some obligation or duty towards the plaintiff, which the defendant has left undischarged or unfulfilled. This is the basis on which the cause of action rests. There can be no fault, or negligence, or breach of duty, where there is no act, or service, or contract, which a party is bound to perform or fulfil. All the cases in the books, in which a party is sought to be charged on the ground that he has caused a way or other place to be incumbered or suffered it to be in a dangerous condition, whereby accident and injury have been occasioned to another, turn on the principle that negligence consists in doing or omitting to do an act by which a legal duty or obligation has been violated. Thus a trespasser who comes on the land of another without right cannot maintain an

## action, if he runs against a barrier or falls into an excavation there

situated. The owner of the land is not bound to protect or provide safeguards for wrong-doers. So a licensee, who enters on premises by permission only, without an enticement, allurement, or inducement being held out to him by the owner or occupant, cannot recover damages for injuries caused by obstructions or pitfalls. He goes there at his own risk, and enjoys the license subject to its concomitant perils. No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon them by the purpose for which the premises are appropriated and occupied, or by some preparation or adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter thereon.

On the other hand, there are cases where houses or lands are so situated, or their mode of occupation and use is such, that the owner or occupant is not absolved from all care for the safety of those who come on the premises, but where the law imposes on him an obligation or duty to provide for their security against accident and injury. Thus the keeper of a shop or store is bound to provide means of safe ingress and egress to and from his premises for those having occasion to enter thereon, and is liable in damages for any injury which may happen by reason of any negligence in the mode of constructing or managing the place of entrance and exit. So the keeper of an inn or other place of public resort would be liable to an action in favor of a person who suffered an injury in consequence of an obstruction or defect in the way or passage which was held out and used as the common and proper place of access to the premises. The general rule or principle applicable to this class of cases is, that an owner or occupant is bound to keep his premises in a safe and suitable condition for those who come upon and pass over them, using due care, if he has held out any invitation, allurement, or inducement, either express or implied, by which they have been led to enter thereon. A mere naked license or permission to enter or pass over an estate will not create a duty or impose an obligation on the part of the owner or person in possession to provide against the danger of accident. The gist of the liability consists in the fact that the person injured did not act merely for his own convenience and pleasure, and from motives to which no act or sign of the owner or occupant contributed, but that he entered the premises because he was led to believe that they were intended to be used by visitors or passengers, and that such use was not only acquiesced in by the owner or person in possession and control of the premises, but that it was in accordance with the intention and design with which the way or place was adapted and prepared or allowed to be so used. The true distinction is this: A mere passive acquiescence by an owner or occupier in a certain use of his land by others involves no liability; but if he directly or by implication induces persons to enter on and pass over his premises, he thereby assumes an obligation that they are in a safe condition, suitable for such use, and for a breach of this obligation he is liable in damages to a person injured thereby.

This distinction is fully recognized in the most recent and best considered cases in the English Courts, and may be deemed to be the pivot on which all cases like the one at bar are made to turn. In Corby _v._ Hill, 4 C. B. (N. S.) 556, the owner of land, having a private road for the use of persons coming to his house, gave permission to a builder engaged in erecting a house on the land to place materials on the road; the plaintiff, having occasion to use the road for the purpose of going to the owner’s residence, ran against the materials and sustained damage, for which the owner was held liable. Cockburn, C. J., says: “The proprietors of the soil held out an allurement whereby the plaintiff was induced to come on the place in question; they held this road out to all persons having occasion to proceed to the house as the means of access thereto.” In Chapman _v._ Rothwell, El. Bl. & El. 168, the proprietor of a brewery was held liable in damages for injury and loss of life caused by permitting a trap-door to be open without sufficient light or proper safeguards, in a passageway through which access was had from the street to his office. This decision was put on the ground that the defendant, by holding out the passageway as the proper mode of approach to his office and brewery, invited the party injured to go there, and was bound to use due care in providing for his safety. This is the point on which the decision turned, as stated by Keating, J., in Hounsell _v._ Smyth, 7 C. B. (N. S.) 738. In the last-named case the distinction is clearly drawn between the liability of a person who holds out an inducement or invitation to others to enter on his premises by preparing a way or path by means of which they can gain access to his house or store, or pass into or over the land, and in a case where nothing is shown but a bare license or permission tacitly given to go upon or through an estate, and the responsibility of finding a safe and secure passage is thrown on the passenger and not on the owner. The same distinction is stated in Barnes _v._ Ward, 9 C. B. 392; Hardcastle _v._ South Yorkshire Railway, &c., 4 Hurlst. & Norm. 67; and Binks _v._ South Yorkshire Railway, &c., 32 Law Journ. (N. S.) Q. B. 26. In the last cited case the language of Blackburn, J., is peculiarly applicable to the case at bar. He says, “There might be a case where permission to use land as a path may amount to such an inducement as to lead the persons using it to suppose it a highway, and thus induce them to use it as such.” See also, for a clear statement of the difference between cases where an invitation or allurement is held out by the defendant, and those where nothing appears but a mere license or permission to enter on premises, Bolch _v._ Smith, 7 Hurlst. & Norm. 741, and Scott _v._ London Docks Co., 11 Law Times (N. S.), 383.

The facts disclosed at the trial of the case now before us, carefully weighed and considered, bring it within that class in which parties have been held liable in damages by reason of having held out an invitation or inducement to persons to enter upon and pass over their premises. It cannot in any just view of the evidence be said that the defendants were passive only, and gave merely a tacit license or assent to the use of the place in question as a public crossing. On the contrary, the place or crossing was situated between two streets of the city (which are much frequented thoroughfares), and was used by great numbers of people who had occasion to pass from one street to the other, and it was fitted and prepared by the defendants with a convenient plank-crossing, such as is usually constructed in highways, where they are crossed by the tracks of a railroad, in order to facilitate the passage of animals and vehicles over the rails. It had been so maintained by the defendants for a number of years. These facts would seem to bring the case within the principle already stated, that the license to use the crossing had been used and enjoyed under such circumstances as to amount to an inducement, held out by the defendants to persons having occasion to pass, to believe that it was a highway, and to use it as such. But the case does not rest on these facts only. The defendants had not only constructed and fitted the crossing in the same manner as if it had been a highway, but they had employed a person to stand there with a flag, and to warn persons who were about to pass over the railroad when it was safe for them to attempt to cross with the vehicles and animals, without interference or collision with the engines and cars of the defendants. And it was also shown that when the plaintiff started to go over the tracks with his wagon, it was in obedience to a signal from this agent of the defendants that there was no obstruction or hindrance to his safe passage over the railroad. These facts well warranted the jury in finding, as they must have done in rendering a verdict for the plaintiff under the instructions of the Court, that the defendants induced the plaintiff to cross at the time when he attempted to do so, and met with the injury for which he now seeks compensation.

It was suggested that the person employed by the defendants to stand near the crossing with a flag exceeded his authority in giving a signal to the plaintiff that it was safe for him to pass over the crossing just previously to the accident, and that no such act was within the scope of his employment, which was limited to the duty of preventing persons from passing at times when it was dangerous to do so. But it seems to us that this is a refinement and distinction which the facts do not justify. It is stated in the report that the flagman was stationed at the place in question, charged among other things with the duty of protecting the public. This general statement of the object for which the agent was employed, taken in connection with the fact that he was stationed at a place constructed and used as a public way by great numbers of people, clearly included the duty of indicating to persons when it was safe for them to pass, as well as when it was prudent or necessary for them to refrain from passing.

Nor do we think it can be justly said that the flagman in fact held out no inducement to the plaintiff to pass. No express invitation need have been shown. It would have been only necessary for the plaintiff to prove that the agent did some act to indicate that there was no risk of accident in attempting to pass over the crossing. The evidence at the trial was clearly sufficient to show that the agent of the defendants induced the plaintiff to pass, and that he acted in so doing within the scope of the authority conferred on him. The question whether the plaintiff was so induced was distinctly submitted to the jury by the Court; nor do we see any reason for supposing that the instructions on this point were misunderstood or misapplied by the jury. If they lacked fulness, the defendants should have asked for more explicit instructions. Certainly the evidence as reported well warranted the finding of the jury on this point.

It was also urged that, if the defendants were held liable in this

## action, they would be made to suffer by reason of the fact that they had

taken precautions to guard against accident at the place in question, which they were not bound to use, and that the case would present the singular aspect of holding a party liable for neglect in the performance of a duty voluntarily assumed, and which was not imposed by the rules of law. But this is by no means an anomaly. If a person undertakes to do an act or discharge a duty by which the conduct of others may properly be regulated and governed, he is bound to perform it in such manner that those who rightfully are led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of his negligence. The liability in such cases does not depend on the motives or considerations which induced a party to take on himself a particular task or duty, but on the question whether the legal rights of others have been violated by the mode in which the charge assumed has been performed.

The Court were not requested at the trial to withdraw the case from the jury on the ground that the plaintiff had failed to show he was in the exercise of due care at the time the accident happened. Upon the evidence, as stated in the report, we cannot say, as matter of law, that the plaintiff did not establish this part of his case.

_Judgment on the verdict._

After the above decision was rendered, the verdict was set aside, by CHAPMAN, J., as against the evidence.[160]

STEVENS _v._ NICHOLS SUPREME JUDICIAL COURT, MASSACHUSETTS, FEBRUARY 23, 1892. _Reported in 155 Massachusetts Reports, 472._

Tort, to recover for injuries occasioned to the plaintiff by driving over a curbstone covered with snow in a private way controlled by the defendants. At the trial in the Superior Court, Mason, C. J., at the defendants’ request, ruled that, upon the pleadings and the plaintiff’s opening, he could not maintain the action, and ordered a verdict for the defendants; and the plaintiff alleged exceptions. The facts, so far as material to the points decided, appear in the opinion.

_John L. Thorndike_, for the defendants.[161]

This case bears no resemblance to Holmes _v._ Drew, 151 Mass. 578, where the defendant had constructed a brick sidewalk by the side of a public street, partly on her own land and partly in the street, without any line of separation, and so that the whole was apparently part of the street, and the defendant clearly intended that it should be used as part of the street. There is no similarity between such an addition to the apparent width of a public street and the opening of a private avenue or way out of a public street. The private way could not have been, or intended to be, part of the public street, and the separation between them was plain....

The absence of similarity between this case and Holmes _v._ Drew, 151 Mass. 578, has already been pointed out; but it is also submitted that that case is the first in which it has ever been held that the owner of land was under any obligation to make it safe for a person that was allowed to come upon the land for his own convenience, and for a purpose in which the owner had no interest, whether the owner gave his consent in the form of a permission or in the form of what might, in common language, be called an invitation. Such persons were called licensees, and must take the land as they found it, subject only to this, that the owner must not lead them into danger by “something like fraud.” Gautret _v._ Egerton, L. R. 2 C. P. 371, 374–375; Reardon _v._ Thompson, 149 Mass. 267, 268; Pollock on Torts, 424–426....

But as regards persons coming upon land at the request, actual or tacit, of the owner upon business or for a purpose in which the owner had an _interest_, it was his duty to make it reasonably safe, and he was liable for damages arising from a neglect of this duty. Indermaur _v._ Dames, L. R. 1 C. P. 274, 2 C. P. 311; Carleton _v._ Franconia Iron & Steel Co., 99 Mass. 216 (rock by wharf at which vessel unloaded); The Moorcock, 14 P. D. 64 (a similar case); Davis _v._ Central Congregational Society, 129 Mass. 367 (plaintiff attending a conference of churches at defendant’s meeting-house, an object in which both

## parties had an interest; also, p. 371, “a dangerous place without

warning”); Pollock on Torts, 415–418.

It is this _common interest_, not the form of the license or invitation, that creates the liability (Holmes _v._ North Eastern Ry. Co., L. R. 4 Ex. 254, 6 Ex. 123).

The distinction between these two classes of cases is that in one the owner of the land has an interest in the person’s coming there, while in the other the authority to come upon the land is a pure _gratuity_. It is reasonable that the owner should undertake some duty in respect of the condition of the land when he brings another person there for an object in which he himself has an interest. But there is no reason why he should undertake any such duty when he makes a gift of the privilege of going upon his land. The privilege is only a gift, whether the owner gives it because it is asked for, or whether he offers it first, or asks or “invites” the other to accept it. It may in a sense be said that a person is “induced” to go upon land by a license or permission of the owner, but the real inducement is his own convenience. When the owner asks him to walk over his land whenever it is agreeable to him, and he goes there, he does so because it is agreeable to him, and not because the owner asks him. He is in law a _licensee_ going upon the land for his own convenience by the owner’s permission, and not a person brought there for a purpose in which the owner has an interest.[162]

_Licensees_, however, have a right to expect that the owner will not create a new danger while the license continues, and he is liable for the consequences if he does create such a danger; _e. g._, by making an excavation near a path, as in Oliver _v._ Worcester, 102 Mass. 489, 502, or by placing an obstruction in an avenue, as in Corby _v._ Hill, 4 C. B. N. S. 556, 567, or by carelessly throwing a keg into a passageway, as in Corrigan _v._ Union Sugar Refinery, 98 Mass. 577, or by negligent management of trains at a private crossing of a railway habitually used by the public with the assent of the company, as in Sweeny _v._ Old Colony Rld. Co., 10 Allen, 368; Murphy _v._ Boston & Albany Rld. Co., 133 Mass. 121; Hanks _v._ Boston & Albany Rld. Co., 147 Mass. 495; Byrne _v._ New York Central Rld. Co., 104 N. Y. 362; Swift _v._ Staten Island Rld. Co., 123 N. Y. 645; Taylor _v._ Delaware & Hudson Canal Co., 113 Pa. St. 162, 175.

The principle of these cases is stated by Willes, J., in Gautret _v._ Egerton, L. R. 2 C. P., p. 373, as follows: “If I dedicate a way to the public which is full of ruts and holes, the public must take it as it is. If I dig a pit in it, I may be liable for the consequences; but, if I do nothing, I am not.”

The same principle is alluded to in June _v._ Boston & Albany Rld. Co., 153 Mass. p. 82, where the court speaks of “cases in which even unintended damage done to a licensee by actively bringing force to bear upon his person will stand differently from merely passively leaving land in a dangerous condition.”

The cases above mentioned include all that are cited in Holmes _v._ Drew, 151 Mass. 580. In none of them is it held or suggested that the railway company was liable for any defect or obstruction in the crossing, or that the landowner was liable for any excavation or obstruction existing when the permission was granted.

[After citing cases where the court said that some kind of inducement or invitation was necessary to create a liability for want of care in running trains.] But it was not suggested that the inducement or invitation would create any liability for defects in the crossing itself which the company gratuitously allowed the public to use.

[Referring to cases where there is implied license to the public to use a crossing.] The probability known to the company that some one may be there in pursuance of the license is treated ... as the ground of liability in such cases for want of care in running trains.... But there is nothing in any of the cases above mentioned tending to support the proposition that the knowledge of the habitual use of the crossing, pursuant to the implied permission, would create a liability for defects in the crossing itself or impose any kind of duty to make it safe or convenient.

* * * * *

Holmes _v._ Drew (151 Mass. 578) does not belong to either of the two last classes of cases. The plaintiff (1) did not go there upon the defendant’s land for any purpose in which the defendant was interested, and (2) the defendant did nothing to make the place less safe than it was when it was first opened to the public. The plaintiff was a volunteer, going upon the defendant’s land with her full permission, but entirely for his own convenience. These distinctions do not appear to have been called to the attention of the court. The judgment, which is very short, seems to proceed upon the ground that the defendant, by paving a footway partly on her own land and allowing it to remain apparently a part of the street, showed an _intention_ that it should be used by foot passengers, and that this would amount to an _implied invitation_, which imposed on her a duty to make it reasonably safe. If this is to be taken literally, a permission ceases to be a _license_ if it is _intended_ that it shall be used; and an invitation imposes the same duty when it is given gratuitously for the pleasure of the donee as when it is given for an object in which the giver has an interest; and the owner of land that gives permission to cross his land can escape liability only by proving that he did not _intend_ the permission to be used. It is submitted that the authorities cited in that case do not support this doctrine. Two of them are cases where the invitation was to come upon the land for a purpose in which the owner had an interest, and in the three others a licensee was injured by negligence in something done after the license was given....

LATHROP, J. The declaration in this case, so far as material to the questions presented at the argument, alleged that the defendants on the day of the accident were, and had been for a long time, lessees and occupants of an estate on Atlantic Avenue in Boston; that the defendants maintained a way or street down by their premises, “leading out of said Atlantic Avenue, and extending to other premises beyond; that said street was in all particulars like the public streets of the city of Boston, being paved with granite blocks, and having sidewalks, and to all appearances was a public thoroughfare; that the defendants had placed no sign or notice of any kind upon or about said street ... which would give warning to the plaintiff or to the public that said street was private property, or dangerous, but had erected a granite curbing out into said street, extending one half the distance across the same, on a line with the rear of their estate, said granite curbing being from six to seven inches above the grade of the paving; that said obstruction was dangerous both by day and by night to all persons who entered upon or passed through said street; that on or about said day the plaintiff had business that called him to the premises that lie beyond the estate of the defendants on said street, and, supposing and assuming that said street was a highway, and being induced by the acts and omissions of these defendants to so suppose and assume, entered in and upon said street to drive through the same; that said obstruction was covered by snow at said time, and plaintiff was unable to see the same; and, while in the exercise of due care, his sleigh struck said granite curbing,” and he was thrown out and injured.

The opening of the plaintiff’s counsel added but little to the declaration. It stated that “the snow lay perfectly level” where the curbstone was; that the plaintiff was driving through the defendants’ way “into the way lying beyond, of which it was ... an extension,” to reach the works of the company for which he was working. It also stated that, before the defendants controlled the way under the written lease, they owned the premises, erected the building, paved the way, and put in the curbstone; “that ever since this building and other buildings had been erected down there the public made use of that way, as they would use any other street in the city; that is, as much as they had any occasion to pass down there with teams or on foot.”

It does not appear that the plaintiff had any right in the way, unless he had it as one of the public. There is no allegation or statement that the plaintiff had ever used the way before, or that he knew the way was paved, or noticed whether there was a sign or not. Indeed, if he was then using the way for the first time, the fair inference would be, from the statement of the condition of the snow, that the fact that the way was paved was unknown to him until after the accident, and did not operate as an inducement to enter the way. The declaration contained no allegation as to any use by the public of the way, and the statement in the opening of counsel, that the public made use of that way, was qualified by the words, “that is, as much as they had any occasion to pass down there with teams or on foot.” It is difficult to see how vehicles of any description could, when the paving was sufficiently visible to act as an inducement, go over that portion of the way which the defendants controlled.

Without laying stress upon these points, we are of opinion that the declaration and the opening of the plaintiff’s counsel do not show that there was any breach on the part of the defendants of any duty which they owed the plaintiff. The defendants were not obliged to put up a sign notifying travellers on the public street that the passageway was not a public way. Galligan _v._ Metacomet Manuf. Co., 143 Mass. 527; Reardon _v._ Thompson, 149 Mass. 267; Redigan _v._ Boston & Maine Railroad, _ante_, 44.[163]

Nor can the fact that the passageway was paved be considered an invitation or inducement to the public to enter upon it for their own convenience. The defendants have a right to pave it for their own use or for the use of their customers. Johnson _v._ Boston & Maine Railroad, 125 Mass. 75; Heinlein _v._ Boston & Providence Railroad, 147 Mass. 136; Reardon _v._ Thompson, 149 Mass. 267; Donnelly _v._ Boston & Maine Railroad, 151 Mass. 210; Redigan _v._ Boston & Maine Railroad, _ante_, 44.

There was in this case no allegation and no statement that the defendants had any knowledge that the public was using the passageway, or of such a condition of things that it can be said that they must have known of it. But if it be assumed that there was such use and such acquiescence that a license might be implied, the plaintiff stands in no better position. “The general rule is,” as stated by Mr. Justice Holmes in Reardon _v._ Thompson, _ubi supra_, “that a licensee goes upon land at his own risk, and must take the premises as he finds them.” See also Redigan _v._ Boston & Maine Railroad, _ante_, 44; Gautret _v._ Egerton, L. R. 2 C. P. 371, 374.

The licensor has, however, no right to create a new danger while the license continues. Oliver _v._ Worcester, 102 Mass. 489, 502; Corrigan _v._ Union Sugar Refinery, 98 Mass. 577; Corby _v._ Hill, 4 C. B. (N. S.) 556. So a railroad company which allows the public habitually to use a private crossing of its tracks cannot use active force against a person or vehicle crossing under a license, express or implied. Sweeny _v._ Old Colony & Newport Railroad, 10 Allen, 368; Murphy _v._ Boston & Albany Railroad, 133 Mass. 121; Hanks _v._ Boston & Albany Railroad, 147 Mass. 495. See June _v._ Boston & Albany Railroad, 153 Mass. 79, 82.

We have no occasion to consider whether the case of Holmes _v._ Drew, 151 Mass. 578, is open to the criticism that it is inconsistent with the doctrine that a person who dedicates a footway to the public use is not obliged to keep it in repair (see Fisher _v._ Prowse, 2 B. & S. 770, 780, and Robbins _v._ Jones, 15 C. B. (N. S.) 221) as we are of opinion that that case has no application to the case at bar. In Holmes _v._ Drew, the defendant made a continuous pavement in front of his house,

## partly on his own land and partly on the public land; and it was held

that the jury might infer from this an invitation to walk over the whole pavement. In the case at bar, the defendants merely opened a private way into a public street, and we fail to see that they thereby invited the public to use it, even though it were paved.

_Exceptions overruled._[164]

TUTTLE _v._ GILBERT MANUFACTURING CO. SUPREME JUDICIAL COURT, MASSACHUSETTS, OCTOBER 20, 1887. _Reported in 145 Massachusetts Reports, 169._

Tort, by lessee of a building against lessor. The lessee claimed, and introduced evidence to show, that, at the time of letting, the lessor agreed to repair the building and put it in safe condition; that the lessee suffered damage by reason of a defect in the building; and that the lessor failed and neglected to make repairs until after the damage to the plaintiff.

Upon the evidence, the judge ruled that plaintiff could not recover, and ordered a verdict for defendant. Plaintiff excepted.[165]

MORTON, C. J. It is the general rule that there is no warranty implied in the letting of premises that they are reasonably fit for use. The lessee takes an estate in the premises hired, and he takes the risk of the quality of the premises, in the absence of an express or implied warranty by the lessor, or of deceit. A lessee, therefore, if he is injured by reason of the unsafe condition of the premises hired, cannot maintain an action against the lessor, in the absence of warranty or of misrepresentation. In cases where lessors have been held liable for such injuries to the lessees, the liability is founded in negligence. Looney _v._ McLean, 129 Mass. 33. Bowe _v._ Hunking, 135 Mass. 380, and cases cited.

The plaintiff admits the general rule, but contends that this case is taken out of it because, at the time of the letting, the defendant agreed to repair and put in a safe condition the stable floor, the unsafe condition of which caused the injury. The contract relied on is a loose one; it fixed no time within which the repairs were to be made, and it is doubtful whether the evidence proved any breach of contract on the part of the defendant. But if we assume that the contract was to make the repairs within a reasonable time, and that the jury would be justified in finding that the defendant had not performed it within a reasonable time, the question is whether, for such a breach, the plaintiff can maintain an action of tort to recover for personal injuries sustained by reason of the defective condition of the stable floor.

The cases are numerous and confusing as to the dividing line between

## actions of contract and of tort, and there are many cases where a man

may have his election to bring either action. Where the cause of action arises merely from a breach of promise, the action is in contract.

The action of tort has for its foundation the negligence of the defendant, and this means more than a mere breach of a promise. Otherwise, the failure to meet a note, or any other promise to pay money, would sustain an action in tort for negligence, and thus the promisor be made liable for all the consequential damages arising from such failure.

As a general rule, there must be some active negligence or misfeasance to support tort. There must be some breach of duty distinct from breach of contract. In the case at bar, the utmost shown against the defendant is that there was unreasonable delay on its part in performing an executory contract. As we have seen, it is not liable by reason of the relation of lessor and lessee, but its liability, if any, must rest solely upon a breach of this contract.

We do not see how the cases would differ in principle if an action were brought against a third person who had contracted to repair the stable floor and had unreasonably delayed in performing his contract. We are not aware of any authority for maintaining such an action. If the defendant had performed the work contemplated by its contract unskilfully and negligently, it would be liable to an action of tort, because in such case there would be a misfeasance, which is a sufficient foundation for an action of tort. Such was the case of Gill _v._ Middleton, 105 Mass. 477.

The case of Ashley _v._ Root, 4 Allen, 504, does not conflict with our view, but recognizes the rule that to sustain an action of tort there must be more than a mere breach of contract.

The plaintiff now argues that he had the right to go to the jury upon the questions of warranty and deceit. It does not appear that this claim was made in the Superior Court; but it is clear that there is no sufficient evidence of any warranty that the stable was safe, or of any deceit or misrepresentation on the part of the defendant or its agent.

_Exceptions overruled._[166]

SOUTHCOTE _v._ STANLEY IN THE EXCHEQUER, JUNE 4, 1856. _Reported in 1 Hurlstone & Norman, 247._

The declaration stated that at the time of the committing of the grievances, &c., the defendant was possessed of an hotel, into which he had then permitted and invited the plaintiff to come as a visitor of the defendant, and in which the plaintiff as such visitor then lawfully was by the permission and invitation of the defendant, and in which hotel there then was a glass door of the defendant which it was then necessary for the plaintiff, as such visitor, to open for the purpose of leaving the hotel, and which the plaintiff, as such visitor, then by the permission of the defendant and with his knowledge, and without any warning from him, lawfully opened for the purpose aforesaid, as a door which was in a proper condition to be opened; nevertheless, by and through the mere carelessness, negligence, and default of the defendant in that behalf, the said door was then in an insecure and dangerous condition, and unfit to be used or opened, and by reason of the said door being in such insecure and dangerous condition and unfit, as aforesaid, and of the then carelessness, negligence, default, and improper conduct of the defendant in that behalf, a large piece of glass from the said door fell out of the same to and upon the plaintiff, and wounded him, and he sustained divers bodily injuries, and remained ill and unable to work for a long time, &c.

Demurrer and joinder therein.

_Raymond_, in support of the demurrer. The declaration discloses no cause of action. It is not stated that the plaintiff was in the hotel as a guest, but merely as a visitor; and there is no allegation that the defendant knew of the dangerous condition of the door. To render the defendant liable, the declaration ought to have shown some contract between the plaintiff and the defendant which imposed on the latter the obligation of taking care that the door was secure; or it should have alleged some negligence on the part of the defendant in the performance of a duty which he owed to the plaintiff. [BRAMWELL, B. If a person invites another into his house, and the latter can only enter through a

## particular door, is it not the duty of the former to take care that the

door is in a secure condition?] He may not be aware that the door is insecure. This declaration only alleges that through the carelessness, negligence, and default of the defendant the door was in a dangerous condition; that cannot be read as involving the allegation that the defendant knew that the door was insecure. All facts necessary to raise a legal liability must be strictly averred. Metcalfe _v._ Hetherington, 11 Exch. 257. [ALDERSON, B. It is not stated that it was the duty of the defendant, as an hotel keeper, to take care that the door was secure. Suppose a person invites another to his house, and the latter runs his hand through a pane of glass, how is the former liable?] The Court then called on

_Gray, contra._ The declaration shows a duty on the part of the defendant, and a breach of that duty. It is immaterial whether the injury takes place in a private house, or in a shop, or in a street; the only question is whether the person who complains was lawfully there? The case is similar in principle to that of Randleson _v._ Murray, 8 A. & E. 109, which decided that a warehouseman who lowers goods from his warehouse is bound to use proper tackle for that purpose. [ALDERSON, B. It is the duty of every person who hangs anything over a public way to take care that it is suspended by a proper rope.] Whether it be a private house or a shop, a duty is so far imposed on the occupier to keep it reasonably secure, that if a person lawfully enters, and through the negligence of the occupier in leaving it in an insecure state receives an injury, the occupier is responsible. Here it is alleged that the defendant invited the plaintiff to come into the hotel as a visitor; that shows that he was lawfully there. [POLLOCK, C. B. The position that an action lies because the plaintiff was lawfully in the house, cannot be supported; a servant is lawfully in his master’s house and yet if the balusters fell, whereby he was injured, he could not maintain an action against the master. If a lady who is invited to dinner goes in an expensive dress, and a servant spills something over her dress which spoils it, the master of the house would not be liable. Where a person enters a house by invitation the same rule prevails as in the case of a servant. A visitor would have no right of action for being put in a damp bed, or near a broken pane of glass, whereby he caught cold. ALDERSON, B. The case of a shop is different, because a shop is open to the public; and there is a distinction between persons who come on business and those who come by invitation.]

POLLOCK, C. B. We are all of opinion that the declaration cannot be supported, and that the defendant is entitled to judgment. I do not think it necessary to point out the reasons by which I have come to that conclusion; because it follows from the decision of this Court (Priestley _v._ Fowler, 3 M. & W. 1) that the mere relation of master and servant does not create any implied duty on the part of the master to take more care of the servant than he may reasonably be expected to do of himself. That decision has been followed by several cases,[167] and is now established law, though I believe the principle was not recognized until recent times. The reason for the rule is that the servant undertakes to run all the ordinary risks of service, including those arising from the negligence of his fellow-servants. The rule applies to all the members of a domestic establishment, so that the master is not in general liable to a servant for injury resulting from the negligence of a fellow-servant; neither can one servant maintain an

## action against another for negligence whilst engaged in their common

employment. The same principle applies to the case of a visitor at a house; whilst he remains there he is in the same position as any other member of the establishment, so far as regards the negligence of the master or his servants, and he must take his chance with the rest.

ALDERSON, B. I am of the same opinion.

BRAMWELL, B. I agree with Mr. _Gray_ to this extent, that where a person is in the house of another, either on business or for any other purpose, he has a right to expect that the owner of the house will take reasonable care to protect him from injury; for instance, that he will not allow a trap-door to be open through which the visitor may fall. But in this case my difficulty is to see that the declaration charges any act of commission. If a person asked another to walk in his garden, in which he had placed spring-guns or men-traps, and the latter, not being aware of it, was thereby injured, that would be an act of commission. But if a person asked a visitor to sleep at his house, and the former omitted to see that the sheets were properly aired, whereby the visitor caught cold, he could maintain no action, for there was no act of commission, but simply an act of omission. This declaration merely alleges that “by and through the mere carelessness, negligence, default, and improper conduct of the defendant,” the glass fell from the door. That means a want of care,—a default in not doing something. The words are all negatives, and under these circumstances the action is not maintainable. I doubted whether the words “carelessness, negligence, and improper conduct,” &c., might not mean something equivalent to actual commission, but on the best consideration which I can give the subject, it appears to me that they do not mean that, but merely point to a negative. If I misconstrue the declaration it is the fault of those who so framed it.

_Judgment for the defendant._[168]

BEEHLER _v._ DANIELS SUPREME COURT, RHODE ISLAND, MAY 1, 1894. _Reported in 18 Rhode Island Reports, 563._

Trespass on the Case. Certified from the Common Pleas Division on demurrer to the declaration.

STINESS, J. The plaintiff seeks to recover for injury caused by falling into an elevator well in the defendants’ building, which he entered in the discharge of his duty, as a member of the fire department of the city of Providence, in answering a call to extinguish a fire. The negligence alleged in the first count is a failure to guard and protect the well; and in the second count such a packing of merchandise as to guide and conduct one to the unguarded and unprotected well. The defendants demur to the declaration, alleging as grounds of demurrer that they owed no duty to the plaintiff; that he entered their premises in the discharge of a public duty and assumed the risks of his employment; that he was in the premises without invitation from them; and that they are not liable for consequences which they could not and were not bound to foresee.

The decisive question thus raised is, Did the defendants, under the circumstances, owe to the plaintiff a duty, for failure in which they are liable to him in damages? The question is not a new one, and we think it is safe to say that it has never been answered otherwise than in favor of the defendants. The plaintiff argues that it was his duty to enter the premises, and, consequently, since an owner may reasonably anticipate the liability of a fire, a duty arises from the owner to the fireman to keep his premises guarded and safe. An extension of this argument to its legitimate result, as a rule of law, is sufficiently startling to show its unsoundness. The liability to fire is common to all buildings and at all times. Hence every owner of every building must at all times keep every part of his property, in such condition, that a fireman, unacquainted with the place, and groping about in darkness and smoke, shall come upon no obstacle, opening, machine or anything whatever which may cause him injury. This argument was urged in Woodruff _v._ Bowen, 136 Ind. 431; but the court said: “We are of the opinion that the owner of a building in a populous city does not owe it as a duty at common law, independent of any statute or ordinance, to keep such building safe for firemen or other officers, who, in a contingency, may enter the same under a license conferred by law.”

Undoubtedly the plaintiff in this case had the right to enter the defendants’ premises, and the character of his entry was that of a licensee. Cooley on Torts, *313. But no such duty as is averred in this declaration is due from an owner to a licensee. This question is discussed in the case just cited, as also in many others. For example, in Reardon _v._ Thompson, 149 Mass. 267, Holmes, J., says: “But the general rule is that a licensee goes upon land at his own risk, and must take the premises as he finds them. An open hole, which is not concealed otherwise than by the darkness of the night, is a danger which a licensee must avoid at his peril.” So in Mathews _v._ Bensel, 51 N. J. Law, 30, Beasley, C. J., says: “The substantial ground of complaint laid in the count is, that the defendants did not properly construct their planer, and, being a dangerous instrument, did not surround it with proper safeguards. But there is no legal principle that imposes such a duty as this on the owner of property with respect to a mere licensee. This is the recognized rule. In the case of Holmes _v._ Northeastern Railway Co., L. R. 4 Exch. 254, 256, Baron Channell says: ‘That where a person is a mere licensee he has no cause of action on account of the dangers existing in the place he is permitted to enter.’” In Parker _v._ Portland Publishing Co., 69 Me. 173, this question is fully examined, the court holding it to be well settled, if the plaintiff was at the place where the injury was received by license merely, that the defendant would owe him no duty and that he could not recover. See also Indiana, etc., Railway Co. _v._ Barnhart, 115 Ind. 399; Gibson _v._ Leonard, 37 Ill. App. 344; Bedell _v._ Berkey, 76 Mich. 435.

There is a clear distinction between a license and an invitation to enter premises, and an equally clear distinction as to the duty of an owner in the two cases. An owner owes to a licensee no duty as to the condition of premises, unless imposed by statute, save that he should not knowingly let him run upon a hidden peril or wilfully cause him harm; while to one invited he is under obligation for reasonable security for the purposes of the invitation. The plaintiff’s declaration does not set out a cause of action upon either of these grounds, and the cases cited and relied on by him fall within the two classes of cases described, and mark the line of duty very clearly. Parker _v._ Barnard, 135 Mass. 116, was the case of a police officer who had entered a building, the doors of which were found open in the night time, to inspect it according to the rules of the police department, and fell down an unguarded elevator well. A statute required such wells to be protected by railings and trap-doors. Judgment having been given for the defendant at the trial, a new trial was ordered upon the ground of a violation of statute. The court says: “The owner or occupant of land or a building is not liable, at common law, for obstructions, pitfalls, or other dangers there existing, as, in the absence of any inducement or invitation to others to enter, he may use his property as he pleases. But he holds his property ‘subject to such reasonable control and regulation of the mode of keeping and use as the legislature, under the police power vested in them by the Constitution of the Commonwealth, may think necessary for the preventing of injuries to the rights of others and the security of the public health and welfare.’” Then, likening the plaintiff to a fireman, the court also says: “Even if they must encounter the danger arising from neglect of such precautions against obstructions and pitfalls as those invited or induced to enter have a right to expect, they may demand, as against the owners or occupants, that they observe the statute in the construction and management of their building.” In Learoyd _v._ Godfrey, 138 Mass. 315, a police officer fell down an uncovered well in or near a passageway to a house where he was called to quell a disturbance of the peace. A verdict for the plaintiff was sustained upon the ground that the jury must have found that the officer was using the passageway by the defendant’s invitation and that the evidence warranted the finding. Gordon _v._ Cummings, 152 Mass. 513, was the case of a letter carrier who fell into an elevator well, in a hallway where he was accustomed to leave letters in boxes put there for that purpose. The court held that there was an implied invitation to the carrier to enter the premises. In Engel _v._ Smith, 82 Mich. 1, the plaintiff fell through a trap-door left open in a building where he was employed. The question of duty is not discussed in the case but simply the fact of negligence. In Bennett _v._ Railroad Co., 102 U. S. 577, the plaintiff, a passenger, fell through a hatch hole in the depot floor. The court construed the declaration as setting out facts which amounted to an invitation to the plaintiff to pass over the route which he took through the shed depot where the hatch hole was.

In the present case the plaintiff sets out no violation of a statute, or facts which amount to an invitation, and, consequently, under the well-settled rule of law, the defendants were under no liability to him for the condition of their premises or the packing of their merchandise. The demurrer to the declaration must therefore be sustained.[169]

SECTION VII LIABILITY TO THIRD PERSONS OF MAKER OR VENDOR OF A CHATTEL

WINTERBOTTOM _v._ WRIGHT IN THE EXCHEQUER, JUNE 6, 1842. _Reported in 10 Meeson & Welsby, 109._

Case. The declaration stated, that the defendant was a contractor for the supply of mail-coaches, and had in that character contracted for hire and reward with the Postmaster-General, to provide the mail-coach for the purpose of conveying the mail-bags from Hartford, in the county of Chester, to Holyhead: That the defendant, under and by virtue of the said contract, had agreed with the said Postmaster-General that the said mail-coach should, during the said contract, be kept in a fit, proper, safe, and secure state and condition for the said purpose, and took upon himself, to wit, under and by virtue of the said contract, the sole and exclusive duty, charge, care, and burden of the repairs, state, and condition of the said mail-coach; and it had become and was the sole and exclusive duty of the defendant, to wit, under and by virtue of his said contract, to keep and maintain the said mail-coach in a fit, proper, safe, and secure state and condition for the purpose aforesaid: That Nathaniel Atkinson and other persons, having notice of the said contract, were under contract with the Postmaster-General to convey the said mail-coach from Hartford to Holyhead, and to supply horses and coachmen for that purpose, and also not, on any pretence whatever, to use or employ any other coach or carriage whatever than such as should be so provided, directed, and appointed by the Postmaster-General: That the plaintiff, being a mail-coachman, and thereby obtaining his livelihood, and whilst the said several contracts were in force, having notice thereof, and trusting to and confiding in the contract made between the defendant and the Postmaster-General, and believing that the said coach was in a fit, safe, secure, and proper state and condition for the purpose aforesaid, and not knowing and having no means of knowing to the contrary thereof, hired himself to the said Nathaniel Atkinson and his co-contractors as mail-coachman, to drive and take the conduct of the said mail-coach, which but for the said contract of the defendant he would not have done. The declaration then averred, that the defendant so improperly and negligently conducted himself, and so utterly disregarded his aforesaid contract, and so wholly neglected and failed to perform his duty in this behalf, that heretofore, to wit, on the 8th of August, 1840, whilst the plaintiff, as such mail-coachman so hired, was driving the said mail-coach from Hartford to Holyhead, the same coach, being a mail-coach found and provided by the defendant under his said contract, and the defendant then acting under his said contract, and having the means of knowing and then well knowing all the aforesaid premises, the said mail-coach being then in a frail, weak, infirm, and dangerous state and condition, to wit, by and through certain latent defects in the state and condition thereof, and unsafe and unfit for the use and purpose aforesaid, and from no other cause, circumstance, matter, or thing whatsoever gave way and broke down, whereby the plaintiff was thrown from his seat, and, in consequence of injuries then received, had become lamed for life.

To this declaration the defendant pleaded several pleas, to two of which there were demurrers; but, as the Court gave no opinion as to their validity, it is not necessary to state them.

_Peacock_, who appeared in support of the demurrers, having argued against the sufficiency of the pleas,—

_Byles_, for the defendant, objected that the declaration was bad in substance. This is an action brought, not against Atkinson and his co-contractors, who were the employers of the plaintiff, but against the person employed by the Postmaster-General, and totally unconnected with them or with the plaintiff. Now it is a general rule, that wherever a wrong arises merely out of the breach of a contract, which is the case on the face of this declaration, whether the form in which the action is conceived be _ex contractu_ or _ex delicto_, the party who made the contract alone can sue: Tollit _v._ Sherstone, 5 M. & W. 283. If the rule were otherwise, and privity of contract were not requisite, there would be no limit to such actions. If the plaintiff may, as in this case, run through the length of three contracts, he may run through any number or series of them; and the most alarming consequences would follow the adoption of such a principle. Levy _v._ Langridge, 4 M. & W. 337, will probably be referred to on the other side. But that case was expressly decided on the ground that the defendant, who sold the gun by which the plaintiff was injured, although he did not personally contract with the plaintiff, who was a minor, knew that it was bought to be used by him. Here there is no allegation that the defendant knew that the coach was to be driven by the plaintiff. There, moreover, fraud was alleged in the declaration, and found by the jury: and there, too, the cause of injury was a weapon of a dangerous nature, and the defendant was alleged to have had notice of the defect in its construction. Nothing of that sort appears upon this declaration.

_Peacock, contra._ This case is within the principle of the decision in Levy _v._ Langridge. Here the defendant entered into a contract with a public officer to supply an article which, if imperfectly constructed, was necessarily dangerous, and which, from its nature and the use for which it was destined, was necessarily to be driven by a coachman. That is sufficient to bring the case within the rule established by Levy _v._ Langridge. In that case the contract made by the father of the plaintiff with the defendant was made on behalf of himself and his family generally, and there was nothing to show that the defendant was aware even of the existence of the particular son who was injured. Suppose a party made a contract with government for a supply of muskets, one of which, from its misconstruction, burst and injured a soldier: there it is clear that the use of the weapon by a soldier would have been contemplated, although not by the particular individual who received the injury, and could it be said, since the decision in Levy _v._ Langridge, that he could not maintain an action against the contractor? So, if a coachmaker, employed to put on the wheels of a carriage, did it so negligently that one of them flew off, and a child of the owner were thereby injured, the damage being the natural and immediate consequence of his negligence, he would surely be responsible. So, if a party entered into a contract to repair a church, a workhouse, or other public building, and did it so insufficiently that a person attending the former, or a pauper in the latter, were injured by the falling of a stone, he could not maintain an action against any other person than the contractor; but against him he must surely have a remedy. It is like the case of a contractor who negligently leaves open a sewer, whereby a person passing along the street is injured. It is clear that no action could be maintained against the Postmaster-General: Hall _v._ Smith, 2 Bing. 156; Humphreys _v._ Mears, 1 Man. & R. 187; Priestly _v._ Fowler. But here the declaration alleges the accident to have happened through the defendant’s negligence and want of care. The plaintiff had no opportunity of seeing that the carriage was sound and secure. [ALDERSON, B. The decision in Levy _v._ Langridge proceeds upon the ground of the knowledge and fraud of the defendant.] Here also there was fraud: the defendant represented the coach to be in a proper state for use, and whether he represented that which was false within his knowledge, or a fact as true which he did not know to be so, it was equally a fraud in point of law, for which he is responsible.

LORD ABINGER, C. B. I am clearly of opinion that the defendant is entitled to our judgment. We ought not to permit a doubt to rest upon this subject, for our doing so might be the means of letting in upon us an infinity of actions. This is an action of the first impression, and it has been brought in spite of the precautions which were taken, in the judgment of this Court in the case of Levy _v._ Langridge, to obviate any notion that such an action could be maintained. We ought not to attempt to extend the principle of that decision, which, although it has been cited in support of this action, wholly fails as an authority in its favor; for there the gun was bought for the use of the son, the plaintiff in that action, who could not make the bargain himself, but was really and substantially the party contracting. Here the action is brought simply because the defendant was a contractor with a third person; and it is contended that thereupon he became liable to everybody who might use the carriage. If there had been any ground for such an

## action, there certainly would have been some precedent of it; but with

the exception of actions against innkeepers, and some few other persons, no case of a similar nature has occurred in practice. That is a strong circumstance, and is of itself a great authority against its maintenance. It is however contended, that this contract being made on the behalf of the public by the Postmaster-General, no action could be maintained against him, and therefore the plaintiff must have a remedy against the defendant. But that is by no means a necessary consequence,—he may be remediless altogether. There is no privity of contract between these parties; and if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue. Where a party becomes responsible to the public, by undertaking a public duty, he is liable, though the injury may have arisen from the negligence of his servant or agent. So, in cases of public nuisances, whether the act was done by the party as a servant, or in any other capacity, you are liable to an action at the suit of any person who suffers. Those, however, are cases where the real ground of the liability is the public duty, or the commission of the public nuisance. There is also a class of cases in which the law permits a contract to be turned into a tort; but unless there has been some public duty undertaken, or public nuisance committed, they are all cases in which an action might have been maintained upon the contract. Thus, a carrier may be sued either in assumpsit or case; but there is no instance in which a party, who was not privy to the contract entered into with him, can maintain any such action. The plaintiff in this case could not have brought an action on the contract; if he could have done so, what would have been his situation supposing the Postmaster-General had released the defendant? That would, at all events, have defeated his claim altogether. By permitting this action, we should be working this injustice, that after the defendant had done everything to the satisfaction of his employer, and after all matters between them had been adjusted, and all accounts settled on the footing of their contract, we should subject them to be ripped open by this action of tort being brought against him.

ALDERSON, B. I am of the same opinion. The contract in this case was made with the Postmaster-General alone; and the case is just the same as if he had come to the defendant and ordered a carriage, and handed it at once over to Atkinson. If we were to hold that the plaintiff could sue in such a case, there is no point at which such actions would stop. The only safe rule is to confine the right to recover to those who enter into the contract: if we go one step beyond that, there is no reason why we should not go fifty. The only real argument in favor of the action is, that this is a case of hardship; but that might have been obviated, if the plaintiff had made himself a party to the contract. Then it is urged that it falls within the principle of the case of Levy _v._ Langridge. But the principle of that case was simply this, that the father having bought the gun for the very purpose of being used by the plaintiff, the defendant made representations by which he was induced to use it. There, a distinct fraud was committed on the plaintiff; the falsehood of the representation was also alleged to have been within the knowledge of the defendant who made it, and he was properly held liable for the consequences. How are the facts of that case applicable to those of the present? Where is the allegation of misrepresentation or fraud in this declaration? It shows nothing of the kind. Our judgment must therefore be for the defendant.

GURNEY, B., concurred.

ROLFE, B. The breach of the defendant’s duty, stated in this declaration, is his omission to keep the carriage in a safe condition; and when we examine the mode in which that duty is alleged to have arisen, we find a statement that the defendant took upon himself, to wit, under and by virtue of the said contract, the sole and exclusive duty, charge, care, and burden of the repairs, state, and condition of the said mail-coach, and, during all the time aforesaid, it had become and was the sole and exclusive duty of the defendant, to wit, under and by virtue of his said contract, to keep and maintain the said mail-coach in a fit, proper, safe, and secure state and condition. The duty, therefore, is shown to have arisen solely from the contract; and the fallacy consists in the use of that word “duty.” If a duty to the Postmaster-General be meant, that is true; but if a duty to the plaintiff be intended (and in that sense the word is evidently used), there was none. This is one of those unfortunate cases in which there certainly has been _damnum_, but it is _damnum absque injuria_; it is, no doubt, a hardship upon the plaintiff to be without a remedy, but, by that consideration we ought not to be influenced. Hard cases, it has been frequently observed, are apt to introduce bad law.

_Judgment for the defendant._[170]

BLOOD BALM COMPANY _v._ COOPER SUPREME COURT, GEORGIA, OCTOBER 14, 1889. _Reported in 83 Georgia Reports, 857._

## Action by Cooper against Blood Balm Company in the City Court of

Atlanta. Verdict for plaintiff. Defendants brought error.[171]

BLANDFORD, J. The main question in this case arises upon the refusal of the Court below to award a nonsuit, and the solution of this question depends upon whether, where one prepares what is known as a proprietary or patent medicine, and puts it upon the market and recommends it to the world as useful for the cure of certain diseases, the bottle containing it having therewith a prescription made by the proprietor of the medicine, in which he states that it is to be taken in certain quantities, and such medicine, accompanied with this prescription, is sold by the proprietor to a druggist for the purpose of being resold to persons who might wish to use it, and the druggist sells the same to a person who uses it in the quantity thus prescribed, and it being shown that the same contains a certain article known as the iodide of potash in such quantity as proves harmful to the person thus using, the proprietor is liable. The plaintiff in error insists that there is no liability on the part of the proprietor, (1) because it was not sold by the proprietor to the person injured, but by a druggist who had purchased the same from the proprietor; and several cases are cited to sustain this position; (2) because the drug thus sold was not imminently hurtful or poisonous.

1. We are not aware of any decision of this Court upon this question, indeed there is none; and we have searched carefully not only the authorities cited by counsel in this case, but others, and we find no question like the one which arises in this record determined by any Court. In the case of Thomas _v._ Winchester, 6 N. Y. (2 Seld.) 397, 57 Am. Dec. 455, 1 Thompson, Neg. 224, referred to by counsel in this case, the question decided was, that a dealer in drugs and medicines who carelessly labels a deadly poison as a harmless medicine, and sends it so labelled into market, is liable to all persons who, without fault on their part, are injured by using it as such medicine in consequence of the false label. This comes nearer the present case than any we have been able to find, and it is relied upon by both parties as an authority; and in the notes thereto by Mr. Freeman in the American Decisions, the cases relied upon by counsel in this case are embraced and referred to, and to some extent considered. It is not denied by counsel in this case that the doctrine of the case cited (Thomas _v._ Winchester) is sound and correct law, but the present case differs from that case, and mainly in this: there the drug sold was a deadly poison, and the wrong consisted in putting a label upon the same which indicated that it was a harmless medicine; whereas in this case the medicine sold was not a deadly poison, and no label was put upon it which was calculated to deceive any one in this respect. But accompanying this medicine was a prescription of the proprietor stating the quantity to be taken, and the evidence tended to show that the quantity thus prescribed contained iodide of potash to such an extent as, when taken by the plaintiff, produced the injury and damage complained of. The liability of the plaintiff in error to the person injured arises, not by contract, but for a wrong committed by the proprietor in the prescription and direction as to the dose that should be taken.

We can see no difference whether the medicine was directly sold to the defendant in error by the proprietor, or by an intermediate party to whom the proprietors had sold it in the first instance for the purpose of being sold again. It was put upon the market by the proprietor, not alone for the use of druggists to whom they might sell it, but to be used by the public in general who might need the same for the cure of certain diseases for which the proprietor set forth in his label the same was adapted. This was the same thing as if the proprietor himself had sold this medicine to the defendant in error, with his instructions and directions as to how the same should be taken. In all the cases cited by the plaintiff in error there is no case in which the proprietor prescribed the doses and quantities to be taken of the medicine sold by him. If this medicine contained the iodide of potassium in sufficient quantity to produce the injurious consequences complained of to the defendant in error, and if the same was administered to him, either by himself or any other person, as prescribed in the label accompanying the medicine, he could, in our judgment, recover for any injury he may have sustained on account of the poisonous effect thereof. It was a wrong on the part of the proprietor to extend to the public generally an invitation to take the medicine in quantities sufficient to injure and damage persons who might take it.

A medicine which is known to the public as being dangerous and poisonous if taken in large quantities, may be sold by the proprietor to druggists and others, and if any person, without more, should purchase and take the same so as to cause injury to himself, the proprietor would not be liable. But if the contents of a medicine are concealed from the public generally, and the medicine is prepared by one who know its contents, and he sells the same, recommending it for certain diseases and prescribing the mode in which it shall be taken, and injury is thereby sustained by the person taking the same, the proprietor would be liable for the damage thus sustained. These proprietary or patent medicines are secret, or intended by the proprietors to be secret, as to their contents. They expect to derive a profit from such secrecy. They are therefore liable for all injuries sustained by any one who takes their medicine in such quantities as may be prescribed by them. There is no way for a person who uses the medicine to ascertain what its contents are, ordinarily, and in this case the contents were only ascertained after an analysis made by a chemist,—which would be very inconvenient and expensive to the public; nor would it be the duty of a person using the medicine to ascertain what poisonous drugs it may contain. He has a right to rely upon the statement and recommendation of the proprietor, printed and published to the world; and if thus relying, he takes the medicine and is injured on account of some concealed drug of which he is unaware, the proprietor is not free from fault, and is liable for the injury thereby sustained. It appears from the analysis made by the chemist in this case that this medicine contained 25 grains of the iodide of potash to two tablespoonfuls of the medicine. The testimony of the plaintiff, by witnesses learned in the profession of medicine, was that iodide of potash in this quantity would produce the effects upon a person using it shown by the condition of the defendant in error. The prescription accompanying the bottle directed the taking of one to two tablespoonfuls of the medicine, and this was done by the defendant in error, and he was thereby greatly injured and damaged.

This is not like the case of a dangerous machine or a gun sold to a person and by him given or sold to another, as in some of the cases referred to. Mr. Freeman, in his notes to the case above referred to (Thomas _v._ Winchester), alludes to all those cases; and Mr. Thompson, in his work on Negligence, refers to the same cases, and they are there fully discussed.

_Judgment affirmed._

[Remainder of opinion omitted.]

HUSET _v._ J. I. CASE THRESHING MACHINE CO. CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT, FEBRUARY 26, 1903. _Reported in 120 Federal Reporter, 865._

SANBORN, Circuit Judge:[172]

Is a manufacturer or vendor of an article or machine which he knows, when he sells it, to be imminently dangerous, by reason of a concealed defect therein, to the life and limbs of any one who shall use it for the purpose for which it was made and intended, liable to a stranger to the contract of sale for an injury which he sustains from the concealed defect while he is lawfully applying the article or machine to its intended use?

The argument of this question has traversed the whole field in which the liability of contractors, manufacturers, and vendors to strangers to their contracts for negligence in the construction or sale of their articles has been contested. The decisions which have been cited are not entirely harmonious, and it is impossible to reconcile all of them with any established rule of law. And yet the underlying principle of the law of negligence, that it is the duty of every one to so act himself and to so use his property as to do no unnecessary damage to his neighbors, leads us fairly through the maze. With this fundamental principle in mind, if we contemplate the familiar rules that every one is liable for the natural and probable effects of his acts; that negligence is a breach of a duty; that an injury that is the natural and probable consequence of an act of negligence is actionable, while one that could not have been foreseen or reasonably anticipated as the probable effect of such an act is not actionable, because the act of negligence in such a case is the remote, and not the proximate, cause of the injury; and that, for the same reason, an injury is not actionable which would not have resulted from an act of negligence except from the interposition of an independent cause (Chicago, St. Paul, Minneapolis & Omaha R. Co. _v._ Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 582)—nearly all the decisions upon this subject range themselves along symmetrical lines, and establish rational rules of the law of negligence consistent with the basic principles upon which it rests.

## Actions for negligence are for breaches of duty. Actions on contracts

are for breaches of agreements. Hence the limits of liability for negligence are not the limits of liability for breaches of contracts, and actions for negligence often accrue where actions upon contracts do not arise, and vice versa. It is a rational and fair deduction from the rules to which brief reference has been made that one who makes or sells a machine, a building, a tool, or an article of merchandise designed and fitted for a specific use is liable to the person who, in the natural course of events, uses it for the purpose for which it was made or sold, for an injury which is the natural and probable consequence of sale. But when a contractor builds a house or a bridge, or a manufacturer constructs a car or a carriage, for the owner thereof under a special contract with him, an injury to any other person than the owner for whom the article is built and to whom it is delivered cannot ordinarily be foreseen or reasonably anticipated as the probable result of the negligence in its construction. So, when a manufacturer sells articles to the wholesale or retail dealers, or to those who are to use them, injury to third persons is not generally the natural or probable effect of negligence in their manufacture, because (1) such a result cannot ordinarily be reasonably anticipated, and because (2) an independent cause—the responsible human agency of the purchaser—without which the injury to the third person would not occur, intervenes, and, as Wharton says, “insulates” the negligence of the manufacturer from the injury to the third person. Wharton on Law of Negligence (2d ed.) § 134. For the reason that in the cases of the character which have been mentioned the natural and probable effect of the negligence of the contractor or manufacturer will generally be limited to the party for whom the article is constructed, or to whom it is sold, and, perhaps more than all this, for the reason that a wise and conservative public policy has impressed the courts with the view that there must be a fixed and definite limitation to the liability of manufacturers and vendors for negligence in the construction and sale of complicated machines and structures which are to be operated or used by the intelligent and the ignorant, the skilful and the incompetent, the watchful and the careless, parties that cannot be known to the manufacturers or vendors, and who use the articles all over the country hundreds of miles distant from the place of their manufacture or original sale, a general rule has been adopted and has become established by repeated decisions of the courts of England and of this country that in these cases the liability of the contractor or manufacturer for negligence in the construction or sale of the articles which he makes or vends is limited to the persons to whom he is liable under his contracts of construction or sale. The limits of the liability for negligence and for breaches of contract in cases of this character are held to be identical. The general rule is that a contractor, manufacturer, or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture, or sale of the articles he handles. Winterbottom _v._ Wright, 10 M. & W. 109; Longmeid _v._ Holliday, 6 Exch. 764, 765; Blakemore _v._ Ry. Co., 8 El. & Bl. 1035; Collis _v._ Selden, L. R. 3 C. P. 495, 497; Bank _v._ Ward, 100 U. S. 195, 204, 25 L. Ed. 621; Bragdon _v._ Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A. 567; Goodlander _v._ Standard Oil Co., 63 Fed. 400, 406, 11 C. C. A. 253, 259, 27 L. R. A. 583; Loop _v._ Litchfield, 42 N. Y. 351, 359, 1 Am. Rep. 513; Losee _v._ Clute, 51 N. Y. 494, 10 Am. Rep. 623; Curtain _v._ Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 220; Heizer _v._ Kingsland & Douglass Mfg. Co., 110 Mo. 605, 615, 617, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 481; Daugherty _v._ Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204; Burke _v._ De Castro, 11 Hun, 354; Swan _v._ Jackson, 55 Hun, 194, 7 N. Y. Supp. 821; Barrett _v._ Mfg. Co., 31 N. Y. Super. Ct. 545; Carter _v._ Harden, 78 Me. 528, 7 Atl. 392; McCaffrey _v._ Mfg. Co., (R. I.) 50 Atl. 651, 55 L. R. A. 822; Marvin Safe Co. _v._ Ward, 46 N. J. Law, 19; Burdick _v._ Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767; Davidson _v._ Nichols, 11 Allen, 514; J. I. Case Plow Works _v._ Niles & Scott Co., (Wis.) 63 N. W. 1013.

In these cases third parties, without any fault on their part, were injured by the negligence of the manufacturer, vendor, or furnisher of the following articles, while the parties thus injured were innocently using them for the purposes for which they were made or furnished, and the courts held that there could be no recovery, because the makers, vendors, or furnishers owed no duty to strangers to their contracts of construction, sale, or furnishing. A stage-coach, Winterbottom _v._ Wright, 10 M. & W. 109; a leaky lamp, Longmeid _v._ Holliday, 6 Exch. 764, 765; a defective chain furnished one to lead stone, Blakemore _v._ Ry Co., 8 El. & Bl. 1035; an improperly hung chandelier, Collis _v._ Selden, L. R. 3 C. P. 495, 497; an attorney’s certificate of title, Bank _v._ Ward, 100 U. S. 195, 204, 25 L. Ed. 621; a defective valve in an oil car, Goodlander _v._ Standard Oil Co., 63 Fed. 401, 406, 11 C. C. A. 253, 259, 27 L. R. A. 583; a porch on a hotel, Curtain _v._ Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 220; a defective side saddle, Bragdon _v._ Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A. 567; a defective rim in a balance wheel, Loop _v._ Litchfield, 42 N. Y. 351, 359, 1 Am. Rep. 513; a defective boiler, Losee _v._ Clute, 51 N. Y. 494, 10 Am. Rep. 623; a defective cylinder in a threshing machine, Heizer _v._ Kingsland & Douglass Mfg. Co., 110 Mo. 605, 615, 617, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 481; a defective wall which fell on a pedestrian, Daugherty _v._ Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837, 57 Am. St. Rep. 204; a defective rope on a derrick, Burke _v._ Refining Co., 11 Hun, 354; a defective shelf for a workman to stand upon in placing ice in a box, Swan _v._ Jackson, 55 Hun, 194, 7 N. Y. Supp. 821; a defective hoisting rope of an elevator, Barrett _v._ Mfg. Co., 31 N. Y. Super. Ct. 545; a runaway horse, Carter _v._ Harden, 78 Me. 528, 7 Atl. 392; a defective hook holding a heavy weight in a drop press, McCaffrey _v._ Mfg. Co., (R. I.) 50 Atl. 651, 55 L. R. A. 822; a defective bridge, Marvin Safe Co. _v._ Ward, 46 N. J. Law, 19; shelves in a dry goods store, whose fall injured a customer, Burdick _v._ Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767; a staging erected by a contractor for the use of his employees, McGuire _v._ McGee, (Pa.) 13 Atl. 551; defective wheels, J. I. Case Plow Works _v._ Niles & Scott Co., (Wis.) 63 N. W. 1013.

In the leading case of Winterbottom _v._ Wright this rule is placed upon the ground of public policy, upon the ground that there would be no end of litigation if contractors and manufacturers were to be held liable to third persons for every act of negligence in the construction of the articles or machines they make after the parties to whom they have sold them have received and accepted them. In that case the defendant had made a contract with the Postmaster-General to provide and keep in repair the stage-coach used to convey the mail from Hartford to Holyhead. The coach broke down, overturned, and injured the driver, who sued the contractor for the injury resulting from his negligence. Lord Abinger, C. B., said:

“There is no privity of contract between these parties; and, if the plaintiff can sue, every passenger, or even any person passing along the road, who was injured by the upsetting of the coach, might bring a similar action. Unless we confine the operation of such contracts as this to the parties who entered into them, the most absurd and outrageous consequences, to which I can see no limit, would ensue.”

Baron Alderson said:

“I am of the same opinion. The contract in this case was made with the Postmaster-General alone; and the case is just the same as if he had come to the defendant and ordered a carriage, and handed it at once over to Atkinson. If we were to hold that the plaintiff could sue in such a case, there is no point at which such actions would stop. The only safe rule is to confine the right to recover to those who enter into the contract. If we go one step beyond that, there is no reason why we should not go fifty.”

The views expressed by the judges in this case have prevailed in England and in the United States, with the exception of two decisions which are in conflict with the leading case and with all the decisions to which reference has been made. Those cases are Devlin _v._ Smith, 89 N. Y. 470, 42 Am. Rep. 311, in which Smith, a painter, employed Stevenson, a contractor, to build a scaffold 90 feet in height, for the express purpose of enabling the painter’s workmen to stand upon it to paint the interior of the dome of a building, and the Court of Appeals of New York held that Stevenson was liable to a workman of Smith, the painter, who was injured by a fall, caused by the negligence of Stevenson in the construction of the scaffold upon which he was working; and Schubert _v._ J. R. Clark Co., 49 Minn. 331, 51 N. W. 1103, 15 L. R. A. 818, 32 Am. St. Rep. 559, in which a painter purchased of a manufacturer a stepladder, and one of the painter’s employees, who was injured by the breaking of a step caused by the negligence of the manufacturer, was permitted to recover of the latter for the injuries he had sustained. The decision in Devlin _v._ Smith may, perhaps, be sustained on the ground that the workmen of Smith were the real parties in interest in the contract, since Stevenson was employed and expressly agreed to construct the scaffold for their use. But the case of Schubert _v._ J. R. Clark Co. is in direct conflict with the side saddle case, Bragdon _v._ Perkins-Campbell Co., 87 Fed. 109, 30 C. C. A. 567; the porch case, Curtain _v._ Somerset, 140 Pa. 70, 21 Atl. 244, 12 L. R. A. 322, 23 Am. St. Rep. 220; the defective cylinder case, Heizer _v._ Kingsland & Douglass Mfg. Co., 110 Mo. 617, 19 S. W. 630, 15 L. R. A. 821, 33 Am. St. Rep. 481; the defective hook case, McCaffrey _v._ Mfg. Co., (R. I.) 50 Atl. 651, 55 L. R. A. 822; and with the general rule upon which all these cases stand.

It is, perhaps, the more remarkable that the current of decisions throughout all the courts of England and the United States should be so uniform and conclusive in support of this rule, and that there should, in the multitude of opinions, be but one or two in conflict with it, than it is that such sporadic cases should be found. They are insufficient in themselves, or in the reasoning they contain, to overthrow or shake the established rule which prevails throughout the English-speaking nations.

But while this general rule is both established and settled, there are, as is usually the case, exceptions to it as well defined and settled as the rule itself. There are three exceptions to this rule.

The first is that an act of negligence of a manufacturer or vendor which is imminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, is actionable by third parties who suffer from the negligence. Dixon _v._ Bell, 5 Maule & Sel. 198; Thomas _v._ Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Norton _v._ Sewall, 106 Mass. 143, 8 Am. Rep. 298; Elkins _v._ McKean, 79 Pa. 493, 502; Bishop _v._ Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715; Peters _v._ Johnson, (W. Va.) 41 S. E. 190, 191, 57 L. R. A. 428. The leading case upon this subject is Thomas _v._ Winchester, 6 N. Y. 397, 57 Am. Dec. 455. A dealer in drugs sold to a druggist a jar of belladonna, a deadly poison, and labelled it “Extract of Dandelion.” The druggist filled a prescription of extract of dandelion, prepared by a physician for his patient. The patient took the prescription thus filled, and recovered of the wholesale dealer for the injuries she sustained. In Norton _v._ Sewall, 106 Mass. 143, 8 Am. Rep. 298, a recovery was had by a third party for the sale of laudanum as rhubarb; in Bishop _v._ Weber, for the furnishing of poisonous food for wholesome food; in Peters _v._ Johnson, for the sale of saltpetre for epsom salts; and in Dixon _v._ Bell, for placing a loaded gun in the hands of a child. In all these cases of sale the natural and probable result of the act of negligence—nay, the inevitable result of it—was not an injury to the party to whom the sales were made, but to those who, after the purchasers had disposed of the articles, should consume them. Hence these cases stand upon two well-established principles of law: (1) That every one is bound to avoid acts or omissions imminently dangerous to the lives of others, and (2) that an injury which is the natural and probable result of an act of negligence is actionable. It was the natural and probable result of the negligence in these cases that the vendees would not suffer, but that those who subsequently purchased the deleterious articles would sustain the injuries resulting from the negligence of the manufacturers or dealers who furnished them.

The second exception is that an owner’s act of negligence which causes injury to one who is invited by him to use his defective appliance upon the owner’s premises may form the basis of an action against the owner. Coughtry _v._ Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387; Bright _v._ Barnett & Record Co., (Wis.) 60 N. W. 418, 420, 26 L. R. A. 524; Heaven _v._ Pender, L. R. 11 Q. B. Div. 503; Roddy _v._ Railway Co., 104 Mo. 234, 241, 15 S. W. 1112, 12 L. R. A. 746, 24 Am. St. Rep. 333. In Coughtry _v._ Globe Woolen Co., 56 N. Y. 124, 15 Am. Rep. 387, the owner of a building employed Osborn & Martin to construct a cornice, and agreed with them to furnish a scaffold upon which their men could perform the work. He furnished the scaffold and one of the employees of the contractors was injured by the negligence of the owner in constructing the scaffold. The court held that the act of the owner was an implied invitation to the employees of Osborn & Martin to use the scaffold and imposed upon him a liability for negligence in its erection. The other cases cited to this exception are of a similar character.

The third exception to the rule is that one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without notice of its qualities is liable to any person who suffers an injury therefrom which might have been reasonably anticipated, whether there were any contractual relations between the

## parties or not. Langridge _v._ Levy, 2 M. & W. 519, 4 M. & W. 337;

Wellington _v._ Oil Co., 104 Mass. 64, 67; Lewis _v._ Terry, (Cal.) 43 Pac. 398. In Langridge _v._ Levy, 2 M. & W. 519, a dealer sold a gun to the father for the use of the son, and represented that it was a safe gun, and made by one Nock. It was not made by Nock, was a defective gun, and when the son discharged it, it exploded and injured him. The son was permitted to recover, because the defendant had knowingly sold the gun to the father for the purpose of being used by the plaintiff by loading and discharging it, and had knowingly made a false warranty that this might be safely done, and the plaintiff, on the faith of that warranty, and believing it to be true, had used the gun, and sustained the damages. The court said in conclusion:

“We therefore think that, as there is fraud, and damage, the result of that fraud, not from an act remote and consequential, but one contemplated by the defendant at the time as one of its results, the party guilty of the fraud is responsible to the party injured.”

This case was affirmed in 4 M. & W. 337, on the ground that the sale of the gun to the father for the use of the son with the knowledge that it was not as represented was a fraud, which entitled the son to recover the damages he had sustained.

In Wellington _v._ Oil Co., the defendants knowingly sold to one Chase, a retail dealer, to be sold by him to his customers as oil, naphtha, a dangerous and explosive liquid. Chase sold the naphtha as oil, the plaintiff used it in a lamp for illuminating purposes, it ignited and exploded, and he recovered of the wholesale dealer. Judge Gray, later Mr. Justice Gray of the Supreme Court, said:

“It is well settled that a man who delivers an article, which he knows to be dangerous or noxious, to another person, without notice of its nature and qualities, is liable for an injury which may reasonably be contemplated as likely to result, and which does in fact result therefrom to that person or any other who is not himself in fault. Thus a person who delivers a carboy, which he knows to contain nitric acid, to a carrier, without informing him of the nature of its contents, is liable for an injury occasioned by the leaking out of the acid upon another carrier, to whom it is delivered by the first in the ordinary course of business, to be carried to its destination. Farrant _v._ Barnes, 11 C. B. (N. S.) 553. So a chemist who sells a bottle of liquid, made up of ingredients known only to himself, representing it to be fit to be used for washing the hair, and knowing that it is to be used by the purchaser’s wife, is liable for an injury occasioned to her by using it for washing her hair. George _v._ Skivington, Law Rep. 5 Ex. 1.”

In Lewis _v._ Terry, (Cal.) 43 Pac. 398, a dealer, knowing a folding bed to be defective and unsafe, sold it to a Mr. Apperson without informing him of the fact. His wife suffered a broken arm and other severe injuries from the negligence of the dealer in the sale of the bed, and recovered of him the damages she sustained.

The Supreme Court of Missouri, in Heizer _v._ Kingsland & Douglass Mfg. Co., in which they held that the manufacturer was not liable to a third person for negligence in the construction of the cylinder of a threshing machine, which burst and injured him, said:

“Had the defendant sold this machine to Ellis, knowing that the cylinder was defective, and for that reason dangerous, without informing him of the defect, then the defendant would be liable even to third persons not themselves in fault. Shearman & Redfield on Negligence, (4th ed.) § 117.”

Turning now to the case in hand, it is no longer difficult to dispose of it. The allegations of the complaint are that the defendant prepared a covering for the cylinder of the threshing machine, which was customarily and necessarily used by those who operated it to walk upon, and which was so incapable of sustaining the least weight that it would bend and collapse whenever any one stepped upon it; that it concealed this defective and dangerous condition of the threshing rig so that it could not be readily discovered by persons engaged in operating or working upon it; that it knew that the machine was in this imminently dangerous condition when it shipped and supplied it to the employer of the plaintiff; and that the plaintiff has sustained serious injury through this defect in its construction. The case falls fairly within the third exception. It portrays a negligence imminently dangerous to the lives and limbs of those who should use the machine, a machine imminently dangerous to the lives and limbs of all who should undertake to operate it, a concealment of this dangerous condition, a knowledge of the defendant when it was shipped and supplied to the employer of the plaintiff that the rig was imminently dangerous to all who should use it for the purpose for which it was made and sold, and consequent damage to the plaintiff. It falls directly within the rule stated by Mr. Justice Gray that when one delivers an article, which he knows to be dangerous to another person, without notice of its nature and qualities, he is liable for an injury which may be reasonably contemplated as likely to result, and which does in fact result therefrom, to that person or to any other who is not himself in fault. The natural, probable, and inevitable result of the negligence portrayed by this complaint in delivering this machine when it was known to be in a condition so imminently dangerous to the lives and limbs of those who should undertake to use it for the purpose for which it was constructed was the death, or loss of one or more of the limbs, of some of the operators. It is perhaps improbable that the defendant was possessed of the knowledge of the imminently dangerous character of this threshing machine when it delivered it, and that upon the trial of the case it will be found to fall under the general rule which has been announced in an earlier part of this opinion. But upon the facts alleged in this complaint, the act of delivering it to the purchaser with a knowledge and a concealment of its dangerous condition was so flagrant a disregard of the rule that one is bound to avoid any act imminently dangerous to the lives and health of his fellows that it forms the basis of a good cause of action in favor of any one who sustained injury therefrom.

The judgment of the Circuit Court must be reversed, and the cause must be remanded to the court below for further proceedings not inconsistent with the views expressed in this opinion.

HEAVEN _v._ PENDER IN THE COURT OF APPEAL, JULY 30, 1883. _Reported in 11 Queen’s Bench Division, 503._

## Action to recover damages for injuries alleged to have been sustained by

the plaintiff through the negligence of the defendant. The County Court judge gave judgment for the plaintiff. The Queen’s Bench Division, on appeal, ordered judgment for defendant. The plaintiff appealed to the Court of Appeal.[173]

BRETT, M. R. In this case the plaintiff was a workman in the employ of Gray, a ship-painter. Gray entered into a contract with a shipowner whose ship was in the defendant’s dock to paint the outside of his ship. The defendant, the dock-owner, supplied, under a contract with the shipowner, an ordinary stage to be slung in the ordinary way outside the ship for the purpose of painting her. It must have been known to the defendant’s servants, if they had considered the matter at all, that the stage would be put to immediate use, that it would not be used by the shipowner, but that it would be used by such a person as the plaintiff, a working ship-painter. The ropes by which the stage was slung, and which were supplied as a part of the instrument by the defendant, had been scorched and were unfit for use, and were supplied without a reasonably careful attention to their condition. When the plaintiff began to use the stage the ropes broke, the stage fell, and the plaintiff was injured. The Divisional Court held that the plaintiff could not recover against the defendant. The plaintiff appealed. The

## action is in form and substance an action for negligence. That the stage

was, through want of attention of the defendant’s servants, supplied in a state unsafe for use is not denied. But want of attention amounting to a want of ordinary care is not a good cause of action although injury ensue from such want, unless the person charged with such want of ordinary care had a duty to the person complaining to use ordinary care in the matter called in question. Actionable negligence consists in the neglect of the use of ordinary care or skill toward a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff, without contributory negligence on his part, has suffered injury to his person or property. The question in this case is whether the defendant owed such a duty to the plaintiff.

If a person contracts with another to use ordinary care or skill toward him or his property, the obligation need not be considered in the light of a duty; it is an obligation of contract. It is undoubted, however, that there may be the obligation of such a duty from one person to another although there is no contract between them with regard to such duty. Two drivers meeting have no contract with each other, but under certain circumstances they have a reciprocal duty toward each other. So two ships navigating the sea. So a railway company which has contracted with one person to carry another has no contract with the person carried, but has a duty toward that person. So the owner or occupier of a house or land who permits a person or persons to come to his house or land has no contract with such person or persons, but has a duty toward him or them. It should be observed that the existence of a contract between two persons does not prevent the existence of the suggested duty between them also being raised by law independently of the contract, by the facts with regard to which the contract is made and to which it applies an exactly similar but a contract duty. We have not in this case to consider the circumstances in which an implied contract may arise to use ordinary care and skill to avoid danger to the safety of person or property. We have not in this case to consider the question of a fraudulent misrepresentation, express or implied, which is a well-recognized head of law. The questions which we have to solve in this case are: What is the proper definition of the relation between two persons other than the relation established by contract, or fraud, which imposes on one of them a duty toward the other to observe, with regard to the person or property of such other, such ordinary care or skill as may be necessary to prevent injury to his person or property; and whether the present case falls within such definition? When two drivers or two ships are approaching each other, such a relation arises between them when they are approaching each other in such a manner that, unless they use ordinary care and skill to avoid it, there will be danger of an injurious collision between them. This relation is established in such circumstances between them, not only if it be proved that they actually know and think of this danger, but whether such proof be made or not. It is established, as it seems to me, because any one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill under such circumstances there would be such danger. And every one ought, by the universally recognized rules of right and wrong, to think so much with regard to the safety of others who may be jeopardized by his conduct; and if, being in such circumstances, he does not think, and in consequence neglects, or if he neglects to use ordinary care and skill, and injury ensue, the law, which takes cognizance of and enforces the rules of right and wrong, will force him to give an indemnity for the injury. In the case of a railway company carrying a passenger with whom it has not entered into the contract of carriage, the law implies the duty, because it must be obvious that unless ordinary care and skill be used the personal safety of the passenger must be endangered. With regard to the condition in which an owner or occupier leaves his house or property other phraseology has been used, which it is necessary to consider. If a man opens his shop or warehouse to customers it is said that he invites them to enter, and that this invitation raises the relation between them which imposes on the inviter the duty of using reasonable care so to keep his house or warehouse that it may not endanger the person or property of the person invited. This is in a sense an accurate phrase, and as applied to the circumstances a sufficiently accurate phrase. Yet it is not accurate if the word “invitation” be used in its ordinary sense. By opening a shop you do not really invite, you do not ask A. B. to come in to buy; you intimate to him that if it pleases him to come in he will find things which you are willing to sell. So in the case of shop, warehouse, road, or premises, the phrase has been used that if you permit a person to enter them you impose on yourself a duty not to lay a trap for him. This, again, is in a sense a true statement of the duty arising from the relation constituted by the permission to enter. It is not a statement of what causes the relation which raises the duty. What causes the relation is the permission to enter and the entry. But it is not a strictly accurate statement of the duty. To lay a trap means in ordinary language to do something with an intention. Yet it is clear that the duty extends to a danger the result of negligence without intention. And with regard to both these phrases, though each covers the circumstances to which it is

## particularly applied, yet it does not cover the other set of

circumstances from which an exactly similar legal liability is inferred. It follows, as it seems to me, that there must be some larger proposition which involves and covers both sets of circumstances. The logic of inductive reasoning requires that where two major propositions lead to exactly similar minor premises there must be a more remote and larger premise which embraces both of the major propositions. That, in the present consideration, is, as it seems to me, the same proposition which will cover the similar legal liability inferred in the cases of collision and carriage. The proposition which these 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. Without displacing the other propositions to which allusion has been made as applicable to the

## particular circumstances in respect of which they have been enunciated,

this proposition includes, I think, all the recognized cases of liability. It is the only proposition which covers them all. It may, therefore, safely be affirmed to be a true proposition, unless some obvious case can be stated in which the liability must be admitted to exist, and which yet is not within this proposition. There is no such case. Let us apply this proposition to the case of one person supplying goods or machinery or instruments or utensils, or the like, for the purpose of their being used by another person, but with whom there is no contract as to the supply. The proposition will stand thus: whenever one person supplies goods, or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing. And for a neglect of such ordinary care or skill whereby injury happens, a legal liability arises to be enforced by an action for negligence. This includes the case of goods, etc., supplied to be used immediately by a

## particular person or persons, or one of a class of persons, where it

would be obvious to the person supplying, if he thought that the goods would in all probability be used at once by such persons before a reasonable opportunity for discovering any defect which might exist, and where the thing supplied would be of such a nature that neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it. It would exclude a case in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect, or where the goods would be of such a nature that a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property. The cases of vendor and purchaser and lender and hirer under contract need not be considered, as the liability arises under the contract, and not merely as a duty imposed by law, though it may not be useless to observe that it seems difficult to import the implied obligation into the contract except in cases in which if there were no contract between the parties the law would, according to the rule above stated, imply the duty.

Examining the rule which has been above enunciated with the cases which have been decided with regard to goods supplied for the purpose of being used by persons with whom there is no contract, the first case to be considered is inevitably Langridge _v._ Levy, 2 M. & W. 519; 4 id. 337. It is not an easy case to act upon. It is not, it cannot be, accurately reported; the declaration is set out; the evidence is assumed to be reported; the questions left to the jury are stated. And then it is said that a motion was made to enter a nonsuit in pursuance of leave reserved on particular grounds. These grounds do not raise the question of fraud at all, but only the question of remoteness. And although the question of fraud seems in a sense to have been left to the jury, yet no question was, according to the report, left to them as to whether the plaintiff acted on the faith of the fraudulent misrepresentation, which is, nevertheless, a necessary question in a case of fraudulent misrepresentation. The report of the argument makes the object of the argument depend entirely upon an assumed motion to arrest the judgment, which raises always a discussion depending entirely on the form of the declaration, and the effect on it of a verdict, in respect of which it is assumed that all questions were left to the jury. If this was the point taken the report of the evidence and of the questions left to the jury is idle! The case was decided on the ground of a fraudulent misrepresentation as stated in the declaration. It is inferred that the defendant intended the representation to be communicated to the son. Why he should have such an intention in fact it seems difficult to understand. His immediate object must have been to induce the father to buy and pay for the gun. It must have been wholly indifferent to him whether, after the sale and payment, the gun would be used or not by the son. I cannot hesitate to say that, in my opinion, the case is a wholly unsatisfactory case to act on as an authority. But taking the case to be decided on the ground of a fraudulent misrepresentation made hypothetically to the son, and acted upon by him, such a decision upon such a ground in no way negatives the proposition that the action might have been supported on the ground of negligence without fraud. It seems to be a case which is within the proposition enunciated in this judgment, and in which the action might have been supported without proof of actual fraud. And this seems to be the meaning of Cleasby, B., in the observations he made on Langridge _v._ Levy, _supra_, in the case of George _v._ Skivington, L. R. 5 Ex. 1, 5. In that case the proposition laid down in that judgment is clearly adopted. The ground of the decision is that the article was, to the knowledge of the defendant, supplied for the use of the wife and for her immediate use. And certainly, if he or any one in his position had thought at all, it must have been obvious that a want of ordinary care or skill in preparing the prescription sold would endanger the personal safety of the wife.

In Corby _v._ Hill, 4 C. B. (N. S.) 556, it is stated by the Lord Chief Justice that an allurement was held out to the plaintiff. And Willes, J., stated that the defendant had no right to set a trap for the plaintiff. But in the form of declaration suggested by Willes, J., on p. 567, there is no mention of allurement, or invitation or trap. The facts suggested in that form are, “that the plaintiff had license to go on the road, that he was in consequence accustomed and likely to pass along it, that the defendant knew of that custom and probability, that the defendant negligently placed slates in such a manner as to be likely to prove dangerous to persons driving along the road, that the plaintiff drove along the road, being by reason of the license lawfully on the road, and that he was injured by the obstruction.” It is impossible to state a case more exactly within the proposition laid down in this judgment. In Smith _v._ London & St. Katharine Docks Co., L. R. 3 C. P. 326, the phrase is again used of invitation to the plaintiff by the defendants. Again, let it be observed that there is no objection to the phrase as applied to the case. But the real value of the phrase may not improperly be said to be that invitation imports knowledge by the defendant of the probable use by the plaintiff of the article supplied, and therefore carries with it the relation between the parties which establishes the duty. In Indermaur _v._ Dames, L. R. 1 C. P. 274, L. R. 2 C. P. 311, reliance is again placed upon a supposed invitation of the plaintiff by the defendant. But, again, it is hardly possible to state facts which bring a case more completely within the definition of the present judgment. In Winterbottom _v._ Wright, 10 M. & W. 109, it was held that there was no duty cast upon the defendant with regard to the plaintiff. The case was decided on what was equivalent to a general demurrer to the declaration. And the declaration does not seem to show that the defendant, if he had thought about it, must have known, or ought to have known, that the coach would be necessarily or probably driven by the plaintiff, or by any class of which he could be said to be one, or that it would be so driven within any time which would make it probable that the defect would not be observed. The declaration relied too much on contracts entered into with other persons than the plaintiff. The facts alleged did not bring the case within the proposition herein enunciated. It was an attempt to establish a duty toward all the world. The case was decided on the ground of remoteness. And it is as to too great a remoteness that the observation of Lord Abinger is pointed, when he says that the doctrine of Langridge _v._ Levy, _supra_, is not to be extended. In Francis _v._ Cockrell, L. R. 5 Q. B. 501, the decision is put by some of the judges on an implied contract between the plaintiff and the defendant. But Cleasby, B. (p. 515), puts it upon the duty raised by the knowledge of the defendant that the stand was to be used immediately by persons of whom the plaintiff was one. In other words, he acts upon the rule above laid down. In Collis _v._ Selden, L. R. 3 C. P. 495, it was held that the declaration disclosed no duty. And obviously, the declaration was too uncertain. There is nothing to show that the defendant knew more of the probability of the plaintiff rather than any other of the public being near the chandelier. There is nothing to show that the plaintiff was more likely to be in the public-house than any other member of the public. There is nothing to show how soon after the hanging of the chandelier any one might be expected or permitted to enter the room in which it was. The facts stated do not bring it within the rule. There is an American case: Thomas _v._ Winchester, 6 N. Y. 397, 57 Am. Dec. 455, cited in Mr. Horace Smith’s Treatise on the Law of Negligence, p. 88, note (t), which goes a very long way. I doubt whether it does not go too far. In Longmeid _v._ Holliday, 6 Ex. 761, a lamp was sold to the plaintiff to be used by the wife. The jury were not satisfied that the defendant knew of the defect in the lamp. If he did, there was fraud; if he did not, there seems to have been no evidence of negligence. If there was fraud, the case was more than within the rule. If there was no fraud the case was not brought by other circumstances within the rule. In Gautret _v._ Egerton, L. R. 2 C. P. 374, the declaration was held by Willes, J., to be bad on demurrer, because it did not show that the defendant had any reason to suppose that persons going to the docks would not have ample means of seeing the holes and cuttings relied on. He does not say there must be fraud in order to support the action. He says there must be something like fraud. He says: “Every man is bound not wilfully to deceive others.” And then, in the alternative, he says: “or to do any act which may place them in danger.” There seems to be no case in conflict with the rule above deduced from well admitted cases. I am, therefore, of opinion that it is a good, safe, and just rule.

I cannot conceive that if the facts were proved which would make out the proposition I have enunciated, the law can be that there would be no liability. Unless that be true, the proposition must be true. If it be the rule the present case is clearly within it. This case is also, I agree, within that which seems to me to be a minor proposition, namely, the proposition which has been often acted upon, that there was in a sense an invitation of the plaintiff by the defendant to use the stage. The appeal must, in my opinion, be allowed, and judgment must be entered for the plaintiff.

COTTON, L. J., BOWEN, L. J., concurs in the judgment I am about to read. [The opinion holds defendant liable, on the ground that he must be considered as having invited the workman to use the dock and all appliances provided by the dock-owner as incident to the use of the dock; and that he was under obligation to take reasonable care that at the time the appliances provided for immediate use in the dock were furnished by him they were in a fit state to be used. The opinion then proceeds as follows:—]

This decides this appeal in favor of the plaintiff, and I am unwilling to concur with the Master of the Rolls in laying down unnecessarily the larger principle which he entertains, inasmuch as there are many cases in which the principle was impliedly negatived.

Take, for instance, the case of Langridge _v._ Levy, _supra_, to which the principle, if it existed, would have applied. But the judges who decided that case based their judgment on the fraudulent representation made to the father of the plaintiff by the defendant. In other cases where the decision has been referred to, judges have treated fraud as the ground of the decision; as was done by Coleridge, J., in Blackmore _v._ Bristol & Exeter Ry. Co., 8 E. & B. 1035; and in Collis _v._ Selden, L. R. 3 C. P. 495, Willes, J., says that the judgment in Langridge _v._ Levy, _supra_, was based on the fraud of the defendant. This impliedly negatives the existence of the larger general principle which is relied on, and the decisions in Collis _v._ Selden, _supra_, and in Longmeid _v._ Holliday, _supra_ (in each of which the plaintiff failed), are, in my opinion, at variance with the principle contended for. The case of George _v._ Skivington, _supra_, and especially what is said by Cleasby, B., in giving judgment in that case, seems to support the existence of the general principle. But it is not in terms laid down that any such principle exists, and the case was decided by Cleasby, B., on the ground that the negligence of the defendant which was his own personal negligence was equivalent, for the purposes of that action, to fraud, on which (as he said) the decision in Langridge _v._ Levy, _supra_, was based.[174]

In declining to concur in laying down the principle enunciated by the Master of the Rolls, I in no way intimate any doubt as to the principle that any one who leaves a dangerous instrument, as a gun, in such a way as to cause danger, or who without due warning supplies to others for use an instrument or thing which to his knowledge, from its construction or otherwise, is in such a condition as to cause danger, not necessarily incident to the use of such an instrument or thing, is liable for injury caused to others by reason of his negligent act.

For the reasons stated I agree that the plaintiff is entitled to judgment, though I do not entirely concur with the reasoning of the Master of the Rolls.

_Judgment reversed._

MacPHERSON _v._ BUICK MOTOR COMPANY COURT OF APPEALS, NEW YORK, MARCH 14, 1916. _Reported in 217 New York Reports, 382._

CARDOZO, J. The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer. The retail dealer resold to the plaintiff. While the plaintiff was in the car it suddenly collapsed. He was thrown out and injured. One of the wheels was made of defective wood, and its spokes crumbled into fragments. The wheel was not made by the defendant; it was bought from another manufacturer. There is evidence, however, that its defects could have been discovered by reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew of the defect and wilfully concealed it. The case, in other words, is not brought within the rule of Kuelling _v._ Lean Mfg. Co., 183 N. Y. 78, 75 N. E. 1098, 2 L. R. A. (N. S.) 303, 111 Am. St. Rep. 691, 5 Ann. Cas. 124. The charge is one, not of fraud, but of negligence. The question to be determined is whether the defendant owed a duty of care and vigilance to any one but the immediate purchaser.

The foundations of this branch of the law, at least in this state, were laid in Thomas _v._ Winchester, 6 N. Y. 397, 57 Am. Dec. 455. A poison was falsely labelled. The sale was made to a druggist, who in turn sold to a customer. The customer recovered damages from the seller who affixed the label. “The defendant’s negligence,” it was said, “put human life in imminent danger.” A poison, falsely labelled, is likely to injure any one who gets it. Because the danger is to be foreseen, there is a duty to avoid the injury. Cases were cited by way of illustration in which manufacturers were not subject to any duty irrespective of contract. The distinction was said to be that their conduct, though negligent, was not likely to result in injury to any one except the purchaser. We are not required to say whether the chance of injury was always as remote as the distinction assumes. Some of the illustrations might be rejected to-day. The principle of the distinction is, for present purposes, the important thing. Thomas _v._ Winchester became quickly a landmark of the law. In the application of its principle there may, at times, have been uncertainty or even error. There has never in this state been doubt or disavowal of the principle itself. The chief cases are well known, yet to recall some of them will be helpful. Loop _v._ Litchfield, 42 N. Y. 351, 1 Am. Rep. 513, is the earliest. It was the case of a defect in a small balance wheel used on a circular saw. The manufacturer pointed out the defect to the buyer, who wished a cheap article and was ready to assume the risk. The risk can hardly have been an imminent one, for the wheel lasted five years before it broke. In the meanwhile the buyer had made a lease of the machinery. It was held that the manufacturer was not answerable to the lessee. Loop _v._ Litchfield was followed in Losee _v._ Clute, 51 N. Y. 494, 10 Am. Rep. 638, the case of the explosion of a steam boiler. That decision has been criticized (Thompson on Negligence, 233; Shearman & Redfield on Negligence, [6th ed.] § 117); but it must be confined to its special facts. It was put upon the ground that the risk of injury was too remote. The buyer in that case had not only accepted the boiler, but had tested it. The manufacturer knew that his own test was not the final one. The finality of the test has a bearing on the measure of diligence owing to persons other than the purchaser. Beven, Negligence, (3d ed.) pp. 50, 51, 54; Wharton, Negligence, (2d ed.) § 134.

These early cases suggest a narrow construction of the rule. Later cases, however, evince a more liberal spirit. First in importance is Devlin _v._ Smith, 89 N. Y. 470, 42 Am. Rep. 311. The defendant, a contractor, built a scaffold for a painter. The painter’s servants were injured. The contractor was held liable. He knew that the scaffold, if improperly constructed, was a most dangerous trap. He knew that it was to be used by the workmen. He was building it for that very purpose. Building it for their use, he owed them a duty, irrespective of his contract with their master, to build it with care.

From Devlin _v._ Smith we pass over intermediate cases and turn to the latest case in this court in which Thomas _v._ Winchester was followed. That case is Statler _v._ Ray Mfg. Co., 195 N. Y. 478, 480, 88 N. E. 1063. The defendant manufactured a large coffee urn. It was installed in a restaurant. When heated, the urn exploded and injured the plaintiff. We held that the manufacturer was liable. We said that the urn “was of such a character inherently that, when applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully and properly constructed.”

It may be that Devlin _v._ Smith and Statler _v._ Ray Mfg. Co. have extended the rule of Thomas _v._ Winchester. If so, this court is committed to the extension. The defendant argues that things imminently dangerous to life are poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. But whatever the rule in Thomas _v._ Winchester may once have been, it has no longer that restricted meaning. A scaffold (Devlin _v._ Smith, _supra_) is not inherently a destructive instrument. It becomes destructive only if imperfectly constructed. A large coffee urn (Statler _v._ Ray Mfg. Co., _supra_) may have within itself, if negligently made, the potency of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water. Torgesen _v._ Schultz, 192 N. Y. 156, 84 N. E. 956, 18 L. R. A. (N. S.) 726, 127 Am. St. Rep. 894. We have mentioned only cases in this court. But the rule has received a like extension in our courts of intermediate appeal. In Burke _v._ Ireland, 26 App. Div. 487, 50 N. Y. Supp. 369, in an opinion by Cullen, J., it was applied to a builder who constructed a defective building; in Kahner _v._ Otis Elevator Co., 96 App. Div. 169, 89 N. Y. Supp. 185, to the manufacturer of an elevator; in Davies _v._ Pelham Hod Elevating Co., 65 Hun, 573, 20 N. Y. Supp. 523, affirmed in this court without opinion, 146 N. Y. 363, 41 N. E. 88, to a contractor who furnished a defective rope with knowledge of the purpose for which the rope was to be used. We are not required at this time either to approve or to disapprove the application of the rule that was made in these cases. It is enough that they help to characterize the trend of judicial thought.

Devlin _v._ Smith was decided in 1882. A year later a very similar case came before the Court of Appeal in England (Heaven _v._ Pender, 11 Q. B. D. 503). We find in the opinion of Brett, M. R., afterwards Lord Esher, the same conception of a duty, irrespective of contract, imposed upon the manufacturer by the law itself:

“Whenever one person supplies goods or machinery, or the like, for the purpose of their being used by another person under such circumstances that every one of ordinary sense would, if he thought, recognize at once that unless he used ordinary care and skill with regard to the condition of the thing supplied, or the mode of supplying it, there will be danger of injury to the person or property of him for whose use the thing is supplied, and who is to use it, a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing.”

He then points out that for a neglect of such ordinary care or skill whereby injury happens, the appropriate remedy is an action for negligence. The right to enforce this liability is not to be confined to the immediate buyer. The right, he says, extends to the persons or class of persons for whose use the thing is supplied. It is enough that the goods “would in all probability be used at once ... before a reasonable opportunity for discovering any defect which might exist,” and that the thing supplied is of such a nature “that a neglect of ordinary care or skill as to its condition or the manner of supplying it would probably cause danger to the person or property of the person for whose use it was supplied, and who was about to use it.” On the other hand, he would exclude a case “in which the goods are supplied under circumstances in which it would be a chance by whom they would be used or whether they would be used or not, or whether they would be used before there would probably be means of observing any defect,” or where the goods are of such a nature that “a want of care or skill as to their condition or the manner of supplying them would not probably produce danger of injury to person or property.” What was said by Lord Esher in that case did not command the full assent of his associates. His opinion has been criticized “as requiring every man to take affirmative precautions to protect his neighbors as well as to refrain from injuring them.” Bohlen, Affirmative Obligations in the Law of Torts, 44 Am. Law Reg. (N. S.) 341. It may not be an accurate exposition of the law of England. Perhaps it may need some qualification even in our own state. Like most attempts at comprehensive definition, it may involve errors of inclusion and of exclusion. But its tests and standards, at least in their underlying principles with whatever qualification may be called for as they are applied to varying conditions, are the tests and standards of our law.

We hold, then, that the principle of Thomas _v._ Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are required to go for the decision of this case. There must be knowledge of a danger, not merely possible, but probable. It is possible to use almost anything in a way that will make it dangerous if defective. That is not enough to charge the manufacturer with a duty independent of his contract. Whether a given thing is dangerous may be sometimes a question for the court and sometimes a question for the jury. There must also be knowledge that in the usual course of events the danger will be shared by others than the buyer. Such knowledge may often be inferred from the nature of the transaction. But it is possible that even knowledge of the danger and of the use will not always be enough. The proximity or remoteness of the relation is a factor to be considered. We are dealing now with the liability of the manufacturer of the finished product, who puts it on the market to be used without inspection by his customers. If he is negligent, where danger is to be foreseen, a liability will follow.

We are not required at this time to say that it is legitimate to go back of the manufacturer of the finished product and hold the manufacturers of the component parts. To make their negligence a cause of imminent danger, an independent cause must often intervene; the manufacturer of the finished product must also fail in his duty of inspection. It may be that in those circumstances the negligence of the earlier members of the series is too remote to constitute, as to the ultimate user, an

## actionable wrong. Beven on Negligence, (3d ed.) 50, 51, 54; Wharton on

Negligence, (2d ed.) § 134; Leeds _v._ N. Y. Tel. Co., 178 N. Y. 118, 70 N. E. 219; Sweet _v._ Perkins, 196 N. Y. 482, 90 N. E. 50; Hayes _v._ Hyde Park, 153 Mass. 514, 516, 27 N. E. 522, 12 L. R. A. 249. We leave that question open. We shall have to deal with it when it arises. The difficulty which it suggests is not present in this case. There is here no break in the chain of cause and effect. In such circumstances, the presence of a known danger, attendant upon a known use, makes vigilance a duty. We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law.

From this survey of the decisions, there thus emerges a definition of the duty of a manufacturer which enables us to measure this defendant’s liability. Beyond all question, the nature of an automobile gives warning of probable danger if its construction is defective. This automobile was designed to go 50 miles an hour. Unless its wheels were sound and strong, injury was almost certain. It was as much a thing of danger as a defective engine for a railroad. The defendant knew the danger. It knew also that the car would be used by persons other than the buyer. This was apparent from its size; there were seats for three persons. It was apparent also from the fact that the buyer was a dealer in cars, who bought to resell. The maker of this car supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin _v._ Smith supplied the scaffold for use by the servants of the owner. The dealer was indeed the one person of whom it might be said with some approach to certainty that by him the car would not be used. Yet the defendant would have us say that he was the one person whom it was under a legal duty to protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn from the days of travel by stage-coach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization requires them to be.

In reaching this conclusion, we do not ignore the decisions to the contrary in other jurisdictions. It was held in Cadillac Co. _v._ Johnson, 221 Fed. 801, 137 C. C. A. 279, L. R. A. 1915E, 287, that an automobile is not within the rule of Thomas _v._ Winchester. There was, however, a vigorous dissent. Opposed to that decision is one of the Court of Appeals of Kentucky. Olds Motor Works _v._ Shaffer, 145 Ky. 616, 140 S. W. 1047, 37 L. R. A. (N. S.) 560, Ann. Cas. 1913B, 689. The earlier cases are summarized by Judge Sanborn in Huset _v._ J. I. Case Threshing Machine Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303. Some of them, at first sight inconsistent with our conclusion, may be reconciled upon the ground that the negligence was too remote, and that another cause had intervened. But even when they cannot be reconciled the difference is rather in the application of the principle than in the principle itself. Judge Sanborn says, for example, that the contractor who builds a bridge, or the manufacturer who builds a car, cannot ordinarily foresee injury to other persons than the owner as the probable result. 120 Fed. 865, at page 867, 57 C. C. A. 237, at page 239, 61 L. R. A. 303. We take a different view. We think that injury to others is to be foreseen not merely as a possible, but as an almost inevitable result. See the trenchant criticism in Bohlen, _supra_, at page 351. Indeed, Judge Sanborn concedes that his view is not to be reconciled with our decision in Devlin _v._ Smith, _supra_. The doctrine of that decision has now become the settled law of this state, and we have no desire to depart from it.

In England the limits of the rule are still unsettled. Winterbottom _v._ Wright, 10 M. & W. 109, is often cited. The defendant undertook to provide a mail coach to carry the mail bags. The coach broke down from latent defects in its construction. The defendant, however, was not the manufacturer. The court held that he was not liable for injuries to a passenger. The case was decided on a demurrer to the declaration. Lord Esher points out in Heaven _v._ Pender, _supra_, at page 513, that the form of the declaration was subject to criticism. It did not fairly suggest the existence of a duty aside from the special contract which was the plaintiff’s main reliance. See the criticism of Winterbottom _v._ Wright, in Bohlen, _supra_, at pages 281, 283. At all events, in Heaven _v._ Pender, _supra_, the defendant, a dock owner, who put up a staging outside a ship, was held liable to the servants of the shipowner. In Elliot _v._ Hall, 15 Q. B. D. 315, the defendant sent out a defective truck laden with goods which he had sold. The buyer’s servants unloaded it, and were injured because of the defects. It was held that the defendant was under a duty “not to be guilty of negligence with regard to the state and condition of the truck.” There seems to have been a return to the doctrine of Winterbottom _v._ Wright in Earl _v._ Lubbock, [1905] 1 K. B. 253. In that case, however, as in the earlier one, the defendant was not the manufacturer. He had merely made a contract to keep the van in repair. A later case (White _v._ Steadman, [1913] 3 K. B. 340, 348) emphasizes that element. A livery stable keeper who sent out a vicious horse was held liable, not merely to his customer, but also to another occupant of the carriage, and Thomas _v._ Winchester was cited and followed, White _v._ Steadman, _supra_, at pages 348, 349. It was again cited and followed in Dominion Natural Gas Co. _v._ Collins, [1909] A. C. 640, 646. From these cases a consistent principle is with difficulty extracted. The English courts, however, agree with ours in holding that one who invites another to make use of an appliance is bound to the exercise of reasonable care. Caledonian Ry. Co. _v._ Mulholland, [1898] A. C. 216, 227; Indermaur _v._ Dames, L. R. 1 C. P. 274. That at bottom is the underlying principle of Devlin _v._ Smith. The contractor who builds the scaffold invites the owner’s workmen to use it. The manufacturer who sells the automobile to the retail dealer invites the dealer’s customers to use it. The invitation is addressed in the one case to determinate persons and in the other to an indeterminate class, but in each case it is equally plain, and in each its consequences must be the same.

There is nothing anomalous in a rule which imposes upon A., who has contracted with B., a duty to C. and D. and others according as he knows or does not know that the subject-matter of the contract is intended for their use. We may find an analogy in the law which measures the liability of landlords. If A. leases to B. a tumble-down house, he is not liable, in the absence of fraud, to B.’s guests who enter it and are injured. This is because B. is then under the duty to repair it, the lessor has the right to suppose that he will fulfill that duty, and, if he omits to do so, his guests must look to him. Bohlen, _supra_, at page 276. But if A. leases a building to be used by the lessee at once as a place of public entertainment, the rule is different. There injury to persons other than the lessee is to be foreseen, and foresight of the consequences involves the creation of a duty. Junkermann _v._ Tilyou R. Co., 213 N. Y. 404, 108 N. E. 190, L. R. A. 1915F, 700, and cases there cited.

In this view of the defendant’s liability there is nothing inconsistent with the theory of liability on which the case was tried. It is true that the court told the jury that “an automobile is not an inherently dangerous vehicle.” The meaning, however, is made plain by the context. The meaning is that danger is not to be expected when the vehicle is well constructed. The court left it to the jury to say whether the defendant ought to have foreseen that the car, if negligently constructed, would become “imminently dangerous.” Subtle distinctions are drawn by the defendant between things inherently dangerous and things imminently dangerous, but the case does not turn upon these verbal niceties. If danger was to be expected as reasonably certain, there was a duty of vigilance, and this whether you call the danger inherent or imminent. In varying forms that thought was put before the jury. We do not say that the court would not have been justified in ruling as a matter of law that the car was a dangerous thing. If there was any error, it was none of which the defendant can complain.

We think the defendant was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer. It was not merely a dealer in automobiles. It was a manufacturer of automobiles. It was responsible for the finished product. It was not at liberty to put the finished product on the market without subjecting the component parts to ordinary and simple tests. Richmond & Danville R. R. Co. _v._ Elliott, 149 U. S. 266, 272, 13 Sup. Ct. 837, 37 L. Ed. 728. Under the charge of the trial judge nothing more was required of it. The obligation to inspect must vary with the nature of the thing to be inspected. The more probable the danger the greater the need of caution.

There is little analogy between this case and Carlson _v._ Phoenix Bridge Co., 132 N. Y. 273, 30 N. E. 750, where the defendant bought a tool for a servant’s use. The making of tools was not the business in which the master was engaged. Reliance on the skill of the manufacturer was proper and almost inevitable. But that is not the defendant’s situation. Both by its relation to the work and by the nature of its business, it is charged with a stricter duty.

Other rulings complained of have been considered, but no error has been found in them.

The judgment should be affirmed, with costs.

WILLARD BARTLETT, C. J. (dissenting). The plaintiff was injured in consequence of the collapse of a wheel of an automobile manufactured by the defendant corporation which sold it to a firm of automobile dealers in Schenectady, who in turn sold the car to the plaintiff. The wheel was purchased by the Buick Motor Company, ready made, from the Imperial Wheel Company of Flint, Mich., a reputable manufacturer of automobile wheels which had furnished the defendant with 80,000 wheels, none of which had proved to be made of defective wood prior to the accident in the present case. The defendant relied upon the wheel manufacturer to make all necessary tests as to the strength of the material therein, and made no such test itself. The present suit is an action for negligence, brought by the subvendee of the motor car against the manufacturer as the original vendor. The evidence warranted a finding by the jury that the wheel which collapsed was defective when it left the hands of the defendant. The automobile was being prudently operated at the time of the accident, and was moving at a speed of only eight miles an hour. There was no allegation or proof of any actual knowledge of the defect on the part of the defendant, or any suggestion that any element of fraud or deceit or misrepresentation entered into the sale.

The theory upon which the case was submitted to the jury by the learned judge who presided at the trial was that, although an automobile is not an inherently dangerous vehicle, it may become such if equipped with a weak wheel; and that if the motor car in question, when it was put upon the market was in itself inherently dangerous by reason of its being equipped with a weak wheel, the defendant was chargeable with a knowledge of the defect so far as it might be discovered by a reasonable inspection and the application of reasonable tests. This liability, it was further held, was not limited to the original vendee, but extended to a subvendee like the plaintiff, who was not a party to the original contract of sale.

I think that these rulings, which have been approved by the Appellate Division, extend the liability of the vendor of a manufactured article further than any case which has yet received the sanction of this court. It has heretofore been held in this state that the liability of the vendor of a manufactured article for negligence arising out of the existence of defects therein does not extend to strangers injured in consequence of such defects, but is confined to the immediate vendee. The exceptions to this general rule which have thus far been recognized in New York are cases in which the article sold was of such a character that danger to life or limb was involved in the ordinary use thereof; in other words, where the article sold was inherently dangerous. As has already been pointed out, the learned trial judge instructed the jury that an automobile is not an inherently dangerous vehicle.

The late Chief Justice Cooley of Michigan, one of the most learned and accurate of American law writers, states the general rule thus:

“The general rule is that a contractor, manufacturer, vendor or furnisher of an article is not liable to third parties who have no contractual relations with him, for negligence in the construction, manufacture or sale of such article.” 2 Cooley on Torts, (3d ed.) 1486.

The leading English authority in support of this rule, to which all the later cases on the same subject refer, is Winterbottom _v._ Wright, 10 Meeson & Welsby, 109, which was an action by the driver of a stage-coach against a contractor who had agreed with the postmaster general to provide and keep the vehicle in repair for the purpose of conveying the royal mail over a prescribed route. The coach broke down and upset, injuring the driver, who sought to recover against the contractor on account of its defective construction. The Court of Exchequer denied him any right of recovery on the ground that there was no privity of contract between the parties, the agreement having been made with the postmaster general alone.

“If the plaintiff can sue,” said Lord Abinger, the Chief Baron, “every passenger or even any person passing along the road who was injured by the upsetting of the coach might bring a similar action. Unless we confine the operation of such contracts as this to the parties who enter into them the most absurd and outrageous consequences, to which I can see no limit, would ensue.”

The doctrine of that decision was recognized as the law of this state by the leading New York case of Thomas _v._ Winchester, 6 N. Y. 397, 408, 57 Am. Dec. 455, which, however, involved an exception to the general rule. There the defendant, who was a dealer in medicines, sold to a druggist a quantity of belladonna, which is a deadly poison, negligently labelled as extract of dandelion. The druggist in good faith used the poison in filling a prescription calling for the harmless dandelion extract, and the plaintiff for whom the prescription was put up was poisoned by the belladonna. This court held that the original vendor was liable for the injuries suffered by the patient. Chief Judge Ruggles, who delivered the opinion of the court, distinguished between an act of negligence imminently dangerous to the lives of others and one that is not so, saying:

“If A. build a wagon and sell it to B., who sells it to C., and C. hires it to D., who in consequence of the gross negligence of A. in building the wagon is overturned and injured, D. cannot recover damages against A., the builder. A.’s obligation to build the wagon faithfully arises solely out of his contract with B. The public have nothing to do with it.... So, for the same reason, if a horse be defectively shod by a smith, and a person hiring the horse from the owner is thrown and injured in consequence of the smith’s negligence in shoeing, the smith is not liable for the injury.”

In Torgesen _v._ Schultz, 192 N. Y. 156, 159, 84 N. E. 956, 18 L. R. A. (N. S.) 726, 127 Am. St. Rep. 894, the defendant was the vendor of bottles of aerated water which were charged under high pressure and likely to explode unless used with precaution when exposed to sudden changes of temperature. The plaintiff, who was a servant of the purchaser, was injured by the explosion of one of these bottles. There was evidence tending to show that it had not been properly tested in order to insure users against such accidents. We held that the defendant corporation was liable notwithstanding the absence of any contract relation between it and the plaintiff “under the doctrine of Thomas _v._ Winchester, _supra_, and similar cases based upon the duty of the vendor of an article dangerous in its nature or likely to become so in the course of the ordinary usage to be contemplated by the vendor, either to exercise due care to warn users of the danger or to take reasonable care to prevent the article sold from proving dangerous when subjected only to customary usage.”

The character of the exception to the general rule limiting liability for negligence to the original parties to the contract of sale, was still more clearly stated by Judge Hiscock, writing for the court in Statler _v._ Ray Manufacturing Co., 195 N. Y. 478, 482, 88 N. E. 1063, where he said that:

“In the case of an article of an inherently dangerous nature, a manufacturer may become liable for a negligent construction which, when added to the inherent character of the appliance, makes it imminently dangerous, and causes or contributes to a resulting injury not necessarily incident to the use of such an article if properly constructed, but naturally following from a defective construction.”

In that case the injuries were inflicted by the explosion of a battery of steam-driven coffee urns, constituting an appliance liable to become dangerous in the course of ordinary usage.

The case of Devlin _v._ Smith, 89 N. Y. 470, 42 Am. Rep. 311, is cited as an authority in conflict with the view that the liability of the manufacturer and vendor extends to third parties only when the article manufactured and sold is inherently dangerous. In that case the builder of a scaffold 90 feet high, which was erected for the purpose of enabling painters to stand upon it, was held to be liable to the administratrix of a painter who fell therefrom and was killed, being at the time in the employ of the person for whom the scaffold was built. It is said that the scaffold, if properly constructed, was not inherently dangerous, and hence that this decision affirms the existence of liability in the case of an article not dangerous in itself, but made so only in consequence of negligent construction. Whatever logical force there may be in this view it seems to me clear from the language of Judge Rapallo, who wrote the opinion of the court, that the scaffold was deemed to be an inherently dangerous structure, and that the case was decided as it was because the court entertained that view. Otherwise he would hardly have said, as he did, that the circumstances seemed to bring the case fairly within the principle of Thomas _v._ Winchester.

I do not see how we can uphold the judgment in the present case without overruling what has been so often said by this court and other courts of like authority in reference to the absence of any liability for negligence on the part of the original vendor of an ordinary carriage to any one except his immediate vendee. The absence of such liability was the very point actually decided in the English case of Winterbottom _v._ Wright, _supra_, and the illustration quoted from the opinion of Chief Judge Ruggles in Thomas _v._ Winchester, _supra_, assumes that the law on the subject was so plain that the statement would be accepted almost as a matter of course. In the case at bar the defective wheel on an automobile, moving only eight miles an hour, was not any more dangerous to the occupants of the car than a similarly defective wheel would be to the occupants of a carriage drawn by a horse at the same speed, and yet, unless the courts have been all wrong on this question up to the present time, there would be no liability to strangers to the original sale in the case of the horse-drawn carriage.

The rule upon which, in my judgment, the determination of this case depends, and the recognized exceptions thereto, were discussed by Circuit Judge Sanborn, of the United States Circuit Court of Appeals in the Eighth Circuit, in Huset _v._ J. I. Case Threshing Machine Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303, in an opinion which reviews all the leading American and English decisions on the subject up to the time when it was rendered (1903). I have already discussed the leading New York cases, but as to the rest I feel that I can add nothing to the learning of that opinion or the cogency of its reasoning. I have examined the cases to which Judge Sanborn refers, but if I were to discuss them at length, I should be forced merely to paraphrase his language, as a study of the authorities he cites has led me to the same conclusion; and the repetition of what has already been so well said would contribute nothing to the advantage of the bench, the bar, or the individual litigants whose case is before us.

A few cases decided since his opinion was written, however, may be noticed. In Earl _v._ Lubbock, [1905] L. R. 1 K. B. Div. 253, the Court of Appeal in 1904 considered and approved the propositions of law laid down by the Court of Exchequer in Winterbottom _v._ Wright, _supra_, declaring that the decision in that case, since the year 1842, had stood the test of repeated discussion. The Master of the Rolls approved the principles laid down by Lord Abinger as based upon sound reasoning; and all the members of the court agreed that his decision was a controlling authority which must be followed. That the federal courts still adhere to the general rule, as I have stated it, appears by the decision of the Circuit Court of Appeals in the Second Circuit, in March, 1915, in the case of Cadillac Motor Car Co. _v._ Johnson, 221 Fed. 801, 137 C. C. A. 279, L. R. A. 1915E, 287. That case, like this, was an action by a subvendee against a manufacturer of automobiles for negligence in failing to discover that one of its wheels was defective, the court holding that such an action could not be maintained. It is true there was a dissenting opinion in that case, but it was based chiefly upon the proposition that rules applicable to stage-coaches are archaic when applied to automobiles, and that if the law did not afford a remedy to strangers to the contract, the law should be changed. If this be true, the change should be effected by the Legislature and not by the courts. A perusal of the opinion in that case and in the Huset Case will disclose how uniformly the courts throughout this country have adhered to the rule and how consistently they have refused to broaden the scope of the exceptions. I think we should adhere to it in the case at bar, and therefore I vote for a reversal of this judgment.

HISCOCK, CHASE, and CUDDEBACK, JJ., concur with CARDOZO, J., and HOGAN, J., concurs in result. WILLARD BARTLETT, C. J., reads dissenting opinion. POUND, J., not voting.

Judgment affirmed.[175]

SECTION VIII CONTRIBUTORY CULPABLE CONDUCT OF PLAINTIFF

NEAL _v._ GILLETT SUPREME COURT OF ERRORS, CONNECTICUT, JUNE TERM, 1855. _Reported in 23 Connecticut Reports, 437._

## Action to recover for personal injury alleged to have been incurred

through the negligence of the defendants. Plaintiff claimed that the defendants were guilty of gross negligence, as the cause of the injury; and that, if the jury should so find, the plaintiff was entitled to recover notwithstanding there had been on his part a want of mere ordinary care which might have essentially contributed to produce the injury complained of. The Court charged the jury in conformity to this claim of the plaintiff. Verdict for plaintiff. Motion for new trial.

SANFORD, J. [Omitting opinion on another point.][176] The question presented upon the second point, is, whether a plaintiff is entitled to recover for an injury, produced by the combined operation of his own want of “ordinary care,” and the gross negligence of the defendant. The exact boundaries between the several degrees of care and their correlative degrees of carelessness, or negligence, are not always clearly defined or easily pointed out. We think, however, that by “ordinary care,” is meant “that degree of care which may reasonably be expected from a person in the party’s situation” (41 E. C. L. R. 425),[177] that is, “reasonable care” (19 Conn. R. 572); and that “gross negligence” imports not a malicious intention or design to produce a

## particular injury, but a thoughtless disregard of consequences; the

absence, rather than the actual exercise, of volition with reference to results.

What is the measure of “reasonable care” must of course depend upon the circumstances of the particular situation in which the party at the time is placed. But “reasonable care,” every one, in the enjoyment of his rights, and the performance of his duties, is bound to exercise at all times and under all circumstances. When he has done that, he is answerable to no one for any consequences which ensue, for he has done all his duty; when he has done less than that he is in fault, and if an injury ensue to another in consequence of such fault, he is responsible for it; if to himself, he must bear it. If in the enjoyment of their lawful rights by two persons, at the same time and place, reasonable care is exercised by both, and an injury accrues to one of them, it must be borne by the suffering party as a providential visitation. If such care is exercised by neither party, and an injury accrues to one of them, he must bear it, for he was himself in fault. And we hold that when the gist of the action is negligence merely,—whether gross or slight, the plaintiff is not entitled to recover, when his own want of ordinary, or reasonable care, has essentially contributed to his injury; because he is himself in fault, and because of the difficulty, if not impossibility, of ascertaining in what proportions the parties respectively, by their negligence, have contributed to the production of the injury, and whether it would have been produced at all but by the combined operation of the negligence of both. When the injury is intentional, and designed, other considerations apply.

For anything this Court can see, the negligence of the defendants, however gross, might have been entirely harmless, but for the plaintiff’s own wrongful contribution to the combined causes which produced his injury. And so too, for anything this Court can see, although the defendants’ negligence was gross, and fully adequate to the production of the injury, yet the plaintiff’s exercise of reasonable care would have saved him from its consequences.

In the recent case of Park _v._ O’Brien, 23 Conn. R. 339, this Court said, “It is necessary for the plaintiff, to prove, first, negligence on the part of the defendant, and, secondly, that the injury to the plaintiff occurred in consequence of that negligence. But in order to prove this latter point, the plaintiff must show that such injury was not caused, wholly, or in part, by his own negligence;[178] for although the defendant was guilty of negligence, if the plaintiff’s negligence contributed essentially to the injury, it is obvious that it did not occur by reason of the defendant’s negligence.” “Hence, to say that the plaintiff must show the latter” [the want of the plaintiff’s concurring negligence], “is only saying that he must show that the injury was owing to the negligence of the defendant.”

The same reasonable doctrine is sanctioned by other decisions, in our own Court and elsewhere. Birge _v._ Gardiner, 19 Conn. R. 507; Beers _v._ Housatonic R. R. Co., 19 Conn. R. 566, and cases there cited.

We think, therefore, that the charge of the Court, on this point, was wrong, and that a new trial ought to be granted.

In this opinion the other judges concurred, except Ellsworth, J., who was disqualified.

_New trial to be granted._[179]

PAYNE _v._ CHICAGO & ALTON RAILROAD COMPANY SUPREME COURT, MISSOURI, JUNE 25, 1895. _Reported in 129 Missouri Reports, 405._

## Action for personal injuries alleged to be caused by the negligence of

defendant. Answer: a general denial, and a plea of contributory negligence.[180]

The judge, at the request of plaintiff, gave the following instruction:—

“No. 7. One of the defences in this case interposed by the defendant is that of negligence on the part of plaintiff, Claude Payne, directly contributing to the injuries of which plaintiff complains; and the court instructs the jury that the law devolves upon the defendant the burden of proving such negligence by a preponderance of the evidence, and it is not sufficient that the jury may believe from the evidence that the plaintiff was simply guilty of negligence, but that the negligence of plaintiff, and not that of the defendant, must be the proximate or immediate cause of the injury, to excuse the defendant from liability.”

In the Circuit Court plaintiff had judgment. Defendant appealed.

MACFARLANE, J. Defendant complains of instruction 7 given the jury at the request of plaintiff. The complaint is that the instruction improperly defines contributory negligence.

Contributory negligence, as the word imports, implies the concurring negligence of both plaintiff and defendant. The phrase is defined by Beach as follows: “Contributory negligence, in its legal signification, is such an act or omission on the part of a plaintiff, amounting to a want of ordinary care, as, concurring or coöperating with the negligent act of the defendant, is a proximate cause or occasion of the injury complained of.” Beach, Cont. Neg. [2 ed.] sect. 7. The definition given by Shearman & Redfield in their work on Negligence (sect. 61) is in substance and effect the same.

If the negligence of either plaintiff or defendant is the sole cause of the injury there could be no contributory negligence in the case. The question for the jury is whether the plaintiff could “by the exercise of such care and skill as he was bound to exercise, have avoided the consequence of the defendant’s negligence.” Lord Blackburn, L. R. 3 App. Cas. 1207. See, also, 4 Am. & Eng. Encyclopedia of Law, 18 & 19. It is clear that there could be no contributory negligence unless there was also negligence of defendant to which that of plaintiff could contribute. Unless the negligence of defendant was the proximate cause of the injury, there could be no liability. Unless the negligence of plaintiff was a proximate cause of the injury, his action, on the ground of contributory negligence, would not be defeated.

Testing the instruction by these rules, it cannot be approved. It tells the jury that “the negligence of plaintiff, and not that of defendant, must be the proximate or immediate cause of the injury to excuse the defendant from liability.” They were told in effect that this result would follow though “plaintiff was simply guilty of negligence.” The jury may as well have been told that to defeat a recovery on the plea of contributory negligence, it was necessary to find that the negligence of plaintiff was the sole proximate cause of the injury. The instruction ignored entirely concurring or contributory negligence of both parties, which is one essential element of contributory negligence. There are no degrees which distinguish the negligence made necessary by the law to defeat a recovery. And negligence which is proximate or a cause of the injury is sufficient. It does not matter that the concurring and coöperating negligence of defendant was negligence, _per se_, such as the violation of an ordinance, as in this case, or statute law.

The instruction is also misleading wherein it informs the jury that in order for defendant to establish its plea of contributory negligence “it is not sufficient that the jury may believe from the evidence that plaintiff was simply guilty of negligence,” and as qualified or explained, by what follows, does not correctly declare the law. The negligence to defeat a recovery must be a proximate cause for the injury, but need not be the sole proximate cause.

As the evidence on the issue of contributory negligence was very clear, we think the errors in this instruction prejudicial and must cause a reversal.[181]

_Judgment reversed, and cause remanded._

BREESE, J., IN GALENA, &c. R. Co. _v._ JACOBS (1858) _20 Illinois, 478, 496–497._

[After citing decisions in other jurisdictions.] It will be seen from these cases that the question of liability does not depend absolutely on the absence of all negligence on the part of the plaintiff, but upon the relative degree of care or want of care as manifested by both parties; for all care or negligence is at best but relative, the absence of the highest possible degree of care showing the presence of some negligence, slight as it may be. The true doctrine, therefore, we think, is, that in proportion to the negligence of the defendant should be measured the degree of care required of the plaintiff; that is to say, the more gross the negligence manifested by the defendant, the less degree of care will be required of the plaintiff to entitle him to recover.... We say, then, that in this, as in all like cases, the degree of negligence must be measured and considered, and whenever it shall appear that the plaintiff’s negligence is comparatively slight and that of the defendant gross, he shall not be deprived of his action.[182]

UNITED STATES COMPILED STATUTES, 1913, § 8659.

In all actions hereafter brought against any such common carrier[183] by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee.[184] (Act of April 22, 1908, c. 149, § 3, 35 Stat. L. 66.)

ENGLAND, WORKMEN’S COMPENSATION ACT, 1906, § 1 (c.)

If it is proved that the injury to a workman is attributable to the serious and wilful misconduct of that workman, any compensation claimed in respect of that injury shall, unless the injury results in death or serious and permanent disablement, be disallowed.[185]

THE MAX MORRIS SUPREME COURT OF THE UNITED STATES, NOVEMBER 17, 1890. _Reported in 137 United States Reports, 1._

The case, as stated by the court, was as follows:—

This was a suit in Admiralty, brought in the District Court of the United States for the Southern District of New York, by Patrick Curry against the steamer Max Morris.[186]

The libel alleged that on the 27th of October, 1884, the libellant was lawfully on board of that vessel, being employed to load coal upon her by the stevedore who had the contract for loading the coal; that, on that day, the libellant, while on the vessel, fell from her bridge to the deck, through the negligence of those in charge of her, in having removed from the bridge the ladder usually leading therefrom to the deck, and in leaving open, and failing to guard, the aperture thus left in the rail on the bridge; that the libellant was not guilty of negligence; and that he was injured by the fall and incapacitated from labor. He claimed $3000 damages.

The answer alleged negligence on the part of the libellant and an absence of negligence on the part of the claimant.

The District Court, held by Judge Brown, entered a decree in favor of the libellant for $150 damages, and $32.33 as one-half of the libellant’s costs, less $47.06 as one-half of the claimant’s costs, making the total award to the libellant $135.27. The opinion of the District Judge is reported in 24 Fed. Rep. 860. It appeared from that that the judge charged to the libellant’s own fault all his pain and suffering and all mere consequential damages, and charged the vessel with his wages, at $2 per day, for seventy-five working days, making $150.

The claimant appealed to the Circuit Court, on the ground that the libel should have been dismissed. It was stipulated between the parties that the facts as stated in the opinion of the District Judge should be taken as the facts proved in the case, and that the appeal should be heard on those facts. Judge Wallace, who heard the case on appeal in the Circuit Court, delivered an opinion, in August, 1886, which is reported in 28 Fed. Rep. 881, affirming the decree of the District Court. No decree was made on that decision, but the case came up again in the Circuit Court on the 14th of March, 1887, the Court being held by Mr. Justice Blatchford and Judge Wallace, when a certificate was signed by them stating as follows: “The libellant was a longshoreman, a resident of the city and county of New York, and was, at the time when the said accident occurred, employed as longshoreman, by the hour, by the stevedore having the contract to load coal on board the steamship Max Morris. The injuries to the libellant were occasioned by his falling through an unguarded opening in the rail on the after-end of the lower bridge. The Max Morris was a British steamship, hailing from Liverpool, England. The defendant contends, as a matter of defence to said libel, that the injuries complained of by libellant were caused by his own negligence. The libellant contends that the injuries were occasioned entirely through the fault of the vessel and her officers. The Court finds, as a matter of fact, that the injuries to the libellant were occasioned

## partly through his own negligence and partly through the negligence of

the officers of the vessel. It now occurs, as a question of law, whether the libellant, under the above facts, is entitled to a decree for divided damages. On this question the opinions of the judges are in conflict.” On motion of the claimant, the question in difference was certified to this Court, and a decree was entered by the Circuit Court affirming the decree of the District Court and awarding to the libellant a recovery of $135.27, with interest from the date of the decree of the District Court, and $26.30 as the libellant’s costs in the Circuit Court, making a total of $172. From that decree the claimant has appealed to this Court. Rev. Stat. §§ 652, 693; Dow _v._ Johnson, 100 U. S. 158.

MR. JUSTICE BLATCHFORD, after stating the case as above reported, delivered the opinion of the Court.

The question discussed in the opinions of Judge Brown and Judge Wallace, and presented to us for decision, is whether the libellant was debarred from the recovery of any sum of money, by reason of the fact that his own negligence contributed to the accident, although there was negligence also in the officers of the vessel. The question presented by the certificate is really that question, although stated in the certificate to be whether the libellant, under the facts presented, was entitled to a decree “for divided damages.” It appears from the opinion of the District Judge that he imposed upon the claimant “some part of the damage” which his concurrent negligence occasioned, while it does not appear from the record that the award of the $150 was the result of an equal division of the damages suffered by the libellant, or a giving to him of exactly one-half, or of more or less than one-half, of such damages.

The particular question before us has never been authoritatively passed upon by this Court, and is, as stated by the District Judge in his opinion, whether, in a Court of admiralty, in a case like the present, where personal injuries to the libellant arose from his negligence concurring with that of the vessel, any damages can be awarded, or whether the libel must be dismissed, according to the rule in common-law cases.

The doctrine of an equal division of damages in admiralty, in the case of a collision between two vessels, where both are guilty of fault contributing to the collision, had long been the rule in England, but was first established by this Court in the case of The Schooner Catherine _v._ Dickinson, 17 How. 170, and has been applied by it to cases where, both vessels being in fault, only one of them was injured, as well as to cases where both were injured, the injured vessel, in the first case, recovering only one-half of its damages, and, in the second case, the damages suffered by the two vessels being added together and equally divided, and the vessel whose damages exceeded such one-half recovering the excess against the other vessel. In the case of The Schooner Catherine _v._ Dickinson, _supra_, both vessels being held in fault for the collision, it was said by the Court, speaking by Mr. Justice Nelson, p. 177, that the well-settled rule in the English admiralty was “to divide the loss,” and that “under the circumstances usually attending these disasters” the Court thought “the rule dividing the loss the most just and equitable, and as best tending to induce care and vigilance on both sides, in the navigation.”

[In Atlee _v._ Packet Co., 21 Wallace, 389, p. 395, MILLER, J., said:] “But the plaintiff has elected to bring his suit in an admiralty Court, which has jurisdiction of the case, notwithstanding the concurrent right to sue at law. In this Court the course of proceeding is in many respects different and the rules of decision are different. The mode of pleading is different, the proceeding more summary and informal, and neither party has a right to trial by jury. An important difference as regards this case is the rule for estimating the damages. In the common-law Court the defendant must pay all the damages or none. If there has been on the part of the plaintiffs such carelessness or want of skill as the common law would esteem to be contributory negligence, they can recover nothing. By the rule of the admiralty Court, where there has been such contributory negligence, or, in other words, when both have been in fault, the entire damages resulting from the collision must be equally divided between the parties. This rule of the admiralty commends itself quite as favorably in its influence in securing practical justice as the other; and the plaintiff who has the selection of the forum in which he will litigate cannot complain of the rule of that forum.” This Court, therefore, treated the case as if it had been one of a collision between two vessels.

Some of the cases referred to show that this Court has extended the rule of the division of damages to claims other than those for damages to the vessels which were in fault in a collision.

* * * * *

The rule of the equal apportionment of the loss where both parties were in fault would seem to have been founded upon the difficulty of determining, in such cases, the degree of negligence in the one and the other. It is said by Cleirac (_Us et Coutumes de la Mer_, p. 68) that such rule of division is a rustic sort of determination, and such as arbiters and amicable compromisers of disputes commonly follow, where they cannot discover the motives of the parties, or when they see faults on both sides.

As to the particular question now presented for decision, there has been a conflict of opinion in the lower Courts of the United States.

* * * * *

All these were cases in admiralty, and were not cases of collision between two vessels. They show an amelioration of the common-law rule, and an extension of the admiralty rule in a direction which we think is manifestly just and proper. Contributory negligence, in a case like the present, should not wholly bar recovery. There would have been no injury to the libellant but for the fault of the vessel; and while, on the one hand, the Court ought not to give him full compensation for his injury, where he himself was partly in fault, it ought not, on the other hand, to be restrained from saying that the fact of his negligence should not deprive him of all recovery of damages. As stated by the District Judge in his opinion in the present case, the more equal distribution of justice, the dictates of humanity, the safety of life and limb and the public good, will be best promoted by holding vessels liable to bear some part of the actual pecuniary loss sustained by the libellant, in a case like the present, where their fault is clear, provided the libellant’s fault, though evident, is neither wilful, nor gross, nor inexcusable, and where the other circumstances present a strong case for his relief. We think this rule is applicable to all like cases of marine tort founded upon negligence and prosecuted in admiralty, as in harmony with the rule for the division of damages in cases of collision. The mere fact of the negligence of the libellant as partly occasioning the injuries to him, when they also occurred partly through the negligence of the officers of the vessel, does not debar him entirely from a recovery.

The necessary conclusion is, that the question whether the libellant, upon the facts found, is entitled to a decree for divided damages, must be answered in the affirmative, in accordance with the judgment below. This being the only question certified, and the amount in dispute being insufficient to give this Court jurisdiction of the whole case, our jurisdiction is limited to reviewing this question. Chicago Union Bank _v._ Kansas City Bank, 136 U. S. 223. Whether, in a case like this, the decree should be for exactly one-half of the damages sustained, or might, in the discretion of the Court, be for a greater or less proportion of such damages, is a question not presented for our determination upon this record, and we express no opinion upon it.

_Decree affirmed._[187]

SCOTT, COLLISIONS AT SEA WHERE BOTH SHIPS ARE IN FAULT, 13 Law Quarterly Review, 17.

If minor or collateral differences be disregarded, there are amongst civilized nations four different ways of dealing with collision damage where both ships are in fault.

1. To mass the total damage and divide it equally between the two ships.[188]

This is the British rule, and has been the American rule....

2. To leave the loss where it falls.

This is the rule in Germany, Holland, Italy, Spain, and those of the South American States which have derived their law from Spain, and was the rule in Great Britain in our Courts of Common Law previous to the Judicature Act, 1873.

3. To divide the loss proportionally to the value of the vessels in collision.

A kind of general average principle obtaining in Turkey and Egypt.

4. To divide the loss proportionally to the faults of the two vessels.

This is the rule of France, Belgium, Norway, Sweden, Denmark, Portugal, Greece, and Roumania.

See Franck, Collisions at Sea in Relation to International Maritime Law, 12 Law Quarterly Review, 260.

ENGLAND, MARITIME CONVENTIONS ACT (1911), § 1.

1. (1) Where, by the fault of two or more vessels, damage or loss is caused to one or more of those vessels, to their cargoes or freight, or to any property on board, the liability to make good the damage or loss shall be in proportion to the degree in which each vessel was in fault:

Provided that—

(a) if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally; and

(b) nothing in this section shall operate so as to render any vessel liable for any loss or damage to which her fault has not contributed.

BUTTERFIELD _v._ FORRESTER IN THE KING’S BENCH, APRIL 22, 1809. _Reported in 11 East, 60._

This was an action on the case for obstructing a highway, by means of which obstruction the plaintiff, who was riding along the road, was thrown down with his horse, and injured, &c. At the trial before Bayley, J., at Derby, it appeared that the defendant, for the purpose of making some repairs to his house, which was close by the roadside at one end of the town, had put up a pole across this part of the road, a free passage being left by another branch or street in the same direction. That the plaintiff left a public house not far distant from the place in question at 8 o’clock in the evening in August, when they were just beginning to light candles, but while there was light enough left to discern the obstruction at one hundred yards distance; and the witness who proved this, said that if the plaintiff had not been riding very hard he might have observed and avoided it; the plaintiff, however, who was riding violently, did not observe it, but rode against it, and fell with his horse and was much hurt in consequence of the accident; and there was no evidence of his being intoxicated at the time. On this evidence Bayley, J., directed the jury, that if a person riding with reasonable and ordinary care could have seen and avoided the obstruction; and if they were satisfied that the plaintiff was riding along the street extremely hard, and without ordinary care, they should find a verdict for the defendant, which they accordingly did.

_Vaughan_, Serjt., now objected to this direction, on moving for a new trial; and referred to Buller’s Ni. Pri. 26,[189] where the rule is laid down, that “if a man lay logs of wood across a highway, though a person may with care ride safely by, yet if by means thereof my horse stumble and fling me, I may bring an action.”

BAYLEY, J. The plaintiff was proved to be riding as fast as his horse could go, and this was through the streets of Derby. If he had used ordinary care he must have seen the obstruction; so that the accident appeared to happen entirely from his own fault.

LORD ELLENBOROUGH, C. J. A party is not to cast himself upon an obstruction which had been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right. In cases of persons riding upon what is considered to be the wrong side of the road, that would not authorize another purposely to ride up against them. One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action: an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.

_Rule refused._

DAVIES _v._ MANN IN THE EXCHEQUER, NOVEMBER 4, 1842. _Reported in 10 Meeson & Welsby, 546._

Case for negligence. The declaration stated, that the plaintiff theretofore, and at the time of the committing of the grievance thereinafter mentioned, to wit, on, &c., was lawfully possessed of a certain donkey, which said donkey of the plaintiff was then lawfully in a certain highway, and the defendant was then possessed of a certain wagon and of certain horses drawing the same, which said wagon and horses of the defendant were then under the care, government, and direction of a certain then servant of the defendant, in and along the said highway; nevertheless the defendant, by his said servant, so carelessly, negligently, unskilfully, and improperly governed and directed his said wagon and horses, that by and through the carelessness, negligence, unskilfulness, and improper conduct of the defendant, by his said servant, the said wagon and horses of the defendant then ran and struck with great violence against the said donkey of the plaintiff, and thereby then wounded, crushed, and killed the same, &c.

The defendant pleaded not guilty.

At the trial, before Erskine, J., at the last Summer Assizes for the county of Worcester, it appeared that the plaintiff, having fettered the fore-feet of an ass belonging to him, turned it into a public highway, and at the time in question the ass was grazing on the off side of a road about eight yards wide, when the defendant’s wagon, with a team of three horses, coming down a slight descent, at what the witness termed a smartish pace, ran against the ass, knocked it down, and the wheels passing over it, it died soon after. The ass was fettered at the time, and it was proved that the driver of the wagon was some little distance behind the horses. The learned judge told the jury, that though the act of the plaintiff, in leaving the donkey on the highway so fettered as to prevent his getting out of the way of carriages travelling along it, might be illegal, still, if the proximate cause of the injury was attributable to the want of proper conduct on the part of the driver of the wagon, the action was maintainable against the defendant; and his Lordship directed them, if they thought that the accident might have been avoided by the exercise of ordinary care on the part of the driver, to find for the plaintiff. The jury found their verdict for the plaintiff, damages 40_s._

_Godson_ now moved for a new trial, on the ground of misdirection. The act of the plaintiff in turning the donkey into the public highway was an illegal one, and, as the injury arose principally from that act, the plaintiff was not entitled to compensation for that injury which, but for his own unlawful act, would never have occurred. [PARKE, B. The declaration states that the ass was lawfully on the highway, and the defendant has not traversed that allegation; therefore it must be taken to be admitted.] The principle of law, as deducible from the cases is, that where an accident is the result of faults on both sides, neither party can maintain an action. Thus, in Butterfield _v._ Forrester, 11 East, 60, it was held that one who is injured by an obstruction on a highway, against which he fell, cannot maintain an action, if it appear that he was riding with great violence and want of ordinary care, without which he might have seen and avoided the obstruction. So, in Vennall _v._ Garner, 1 C. & M. 21, in case for running down a ship, it was held, that neither party can recover when both are in the wrong; and Bayley, B., there says, “I quite agree that if the mischief be the result of the combined negligence of the two, they must both remain in _statu quo_, and neither party can recover against the other.” Here the plaintiff, by fettering the donkey, had prevented him from removing himself out of the way of accident; had his fore-feet been free no accident would probably have happened. Pluckwell _v._ Wilson, 5 Car. & P. 375; Luxford _v._ Large, Ibid. 421, and Lynch _v._ Nurdin, 1 Ad. & E. (N. S.) 29[190]; 4 P. & D. 672, are to the same effect.

LORD ABINGER, C. B. I am of opinion that there ought to be no rule in this case. The defendant has not denied that the ass was lawfully in the highway, and therefore we must assume it to have been lawfully there; but even were it otherwise, it would have made no difference, for as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.

PARKE, B. This subject was fully considered by this Court in the case of Bridge _v._ The Grand Junction Railway Company, 3 M. & W. 246, where, as appears to me, the correct rule is laid down concerning negligence, namely, that the negligence which is to preclude a plaintiff from recovering in an action of this nature, must be such as that he could, by ordinary care, have avoided the consequences of the defendant’s negligence. I am reported to have said in that case, and I believe quite correctly, that “the rule of law is laid down with perfect correctness in the case of Butterfield _v._ Forrester, that, although there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence, he is entitled to recover; if by ordinary care he might have avoided them, he is the author of his own wrong.” In that case of Bridge _v._ Grand Junction Railway Company, there was a plea imputing negligence on both sides; here it is otherwise; and the judge simply told the jury, that the mere fact of negligence on the part of the plaintiff in leaving his donkey on the public highway, was no answer to the action, unless the donkey’s being there was the immediate cause of the injury; and that, if they were of opinion that it was caused by the fault of the defendant’s servant in driving too fast or, which is the same thing, at a smartish pace, the mere fact of putting the ass upon the road would not bar the plaintiff of his action. All that is perfectly correct; for, although the ass may have been wrongfully there, still the defendant was bound to go along the road at such a pace as would be likely to prevent mischief. Were this not so, a man might justify the driving over goods left on a public highway, or even over a man lying asleep there, or the purposely running against a carriage going on the wrong side of the road.

GURNEY, B., and ROLFE, B., concurred.

_Rule refused._[191]

NORTHERN PACIFIC RAILWAY COMPANY _v._ JONES UNITED STATES CIRCUIT COURT OF APPEALS, NINTH CIRCUIT, FEBRUARY 5, 1906. _Reported in 144 Federal Reporter, 47._

GILBERT, J.[192] ... The defendant in error was a miner of the age of 34 years, and was in the full possession of his senses. According to his own testimony, he walked upon the railroad track a distance of more than half a mile without once looking back or stopping to listen for an approaching train. In so doing, it must be held that he was guilty of gross negligence, which, irrespective of negligence in the failure of the engineer to discover him on the track, is sufficient to bar his right of recovery. It was no excuse for his failure to take such precautions that the wind was blowing in his face, or that the noise of a waterfall may have deadened the sound of an approaching train. Those circumstances only rendered the use of his senses the more imperative. It was his duty continually to exercise vigilance.

* * * * *

On the authority of Inland & Seaboard Coasting Co. _v._ Tolson, 139 U. S. 551–558, 11 Sup. Ct. 653, 35 L. Ed. 270; Grand Trunk Ry. Co. _v._ Ives, 144 U. S. 408–429, 12 Sup. Ct. 679, 36 L. Ed. 485; and Bogan _v._ Carolina Central Ry. Co., 129 N. C. 154, 39 S. E. 808, 55 L. R. A. 418, the defendant in error invokes the doctrine that the contributory negligence of the party injured will not defeat the

## action, if it be shown that the defendant might, by the exercise of

reasonable care and prudence, have avoided the consequences of the injured party’s negligence. In the first of these decisions, the doctrine was applied in a case where the plaintiff, a wharfinger, was standing with his foot between the timbers of a wharf, to deliver freight to a vessel which was about to make a landing there, and which struck the wharf with such force as to crush his foot. But the court held that the doctrine was applicable, for the reason that the jury might well have been of opinion that, while there was some negligence on the plaintiff’s part in standing where and as he did, yet the officers of the boat knew just where and how he stood, and might have avoided injuring him, if they had used reasonable care to prevent the steamboat from striking the wharf with unusual and unnecessary violence. In the Ives Case, the plaintiff’s intestate was killed while attempting to cross a railroad track. There was evidence of negligence on the part of the railroad company. On the part of the plaintiff’s intestate there was no evidence as to what precaution he took before placing himself in the place of danger, except that, at a distance of about seventy-six feet from the track, he stopped several minutes, presumably to listen for trains; that while there a train passed; and that, soon after it had passed, and while the noise caused by it was still quite distinct, he proceeded across the track and was struck by another train. The court held that the question of contributory negligence of the plaintiff’s intestate was properly left to the jury, as one to be determined under all the circumstances of the case, but incidentally proceeded to affirm the rule above quoted, citing Davies _v._ Mann, 10 M. & W. 546; Inland & Seaboard Coasting Co. _v._ Tolson, and other cases. There was no evidence in the Ives Case that the plaintiff’s intestate was seen by those who were managing the train in time to have avoided the accident. The court, in that case, however, reaffirmed the rule that a traveller, on going upon a railroad track, ought to make vigilant use of his senses of sight and hearing, and listen for signals, and look in the different directions from which a train might come, and said:—

“If by neglect of this duty he suffers injury from a passing train, he cannot recover of the company, although it may itself be chargeable with negligence, or have failed to give the signals required by statute, or be running at the time at a speed exceeding the legal rate.”

It cannot be contended that in the Ives Case the Supreme Court intended to lay down the broad rule that no contributory negligence of the party injured will defeat his right to recover, if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of that negligence. To so hold would be to destroy the whole doctrine of contributory negligence. As applied to the present case, it would mean that the plaintiff in error was bound to know that the defendant in error was upon its track, and that he would not step aside in time to avoid the train. Such is not the doctrine of cases such as Northern Pacific Railroad _v._ Freeman[193] and the other decisions which we have cited above. The doctrine of “the last clear chance,” so invoked by the defendant in error, originated in Davies _v._ Mann, in which it was held that the plaintiff’s want of ordinary care in that case did not constitute contributory negligence, because it was a remote cause or mere condition of the injury, and did not proximately contribute to it, and because the negligence of the defendant arose subsequently to that of the plaintiff, and the latter’s negligence was so obvious as to have been discoverable by the exercise of ordinary care. That doctrine has no application to a case where the plaintiff voluntarily places himself in a place of danger from which he has present means of escape, and continues there without exercising precautions which an ordinarily prudent man would exercise. We have nothing here to do with the law applicable to a case where the injured person is found in a place of danger, as upon a railroad trestle, from which he is powerless to extricate himself on the approach of a train, and where his situation is discovered, or ought to have been discovered, by those in charge of the train.

* * * * *

JONES _v._ CHARLESTON & WESTERN CAROLINA RAILWAY COMPANY SUPREME COURT, SOUTH CAROLINA, APRIL TERM, 1901. _Reported in 61 South Carolina Reports, 556._

## Action under statute by administrator of Susan V. Jones to recover for

her death. Mrs. Jones was killed by a train backing down upon her while she was walking on the railroad track. Plaintiff’s evidence tended to show that the track at that place had been accustomed to be used by the public as a walkway with the knowledge and acquiescence of the defendant company. Mrs. Jones, when killed, was on a trestle. The train was backing down behind her, at a speed of from five to ten miles an hour. There was evidence on plaintiff’s part that no bell was rung, no whistle blown, no warning given of the approach of the train; also that there was no lookout on the train, and no rear-end lights.

Defendant requested the following instruction (No. 6):—

“Even if the defendant was guilty of negligence in the backing of its train, and such negligence was a proximate cause of the injury, if the jury also believe that the said Susan V. Jones showed a want of ordinary care in walking down the track that night, under all the circumstances, and such carelessness was a proximate cause of the injury, she was guilty of contributory negligence, and the plaintiff would not be entitled to recover.”

The judge qualified this instruction by adding:—

“If the deceased, Mrs. Jones, was guilty of negligence in acting as you may find from the testimony that she acted, and if her conduct, her negligence, together with the negligence of the railroad company, contributed to her injury as the proximate cause, then the railroad company would not be responsible, unless the railroad company could have avoided injuring her notwithstanding her negligence.”

The judge charged the jury, in accordance with plaintiff’s ninth request, as follows:—

“Contributory negligence is a matter of defence, and must be proved by defendant by a preponderance of the evidence; but unless the contributory negligence was the proximate cause of the accident, and if in spite of such contributory negligence the accident could have been avoided by the use of ordinary care on the part of the defendant, then plaintiff is still entitled to recover.”

Verdict for plaintiff and judgment thereon. Defendant appealed.[194]

JONES, J.... The testimony being undisputed that Mrs. Jones, plaintiff’s intestate, was walking down the railroad track at the time of the injury, the defendant was entitled to have the sixth request to charge above mentioned in the tenth exception submitted to the jury as entirely correct. The remarks by the court down to the clause, “unless the railroad company could have avoided injuring her notwithstanding her negligence,” were not improper nor inconsistent with the request, but the addition of such qualification was erroneous and wholly inconsistent with the well-settled principles governing contributory negligence. The same error was made in the charge excepted to in the eleventh exception above, when the court instructed the jury, “but unless the contributory negligence was the proximate cause of the accident, and if in spite of _such_ contributory negligence (that is, negligence which contributed as a proximate cause), the accident could have been avoided by the use of ordinary care on the part of the defendant, then the plaintiff is still entitled to recover.” The charge destroyed the defence of contributory negligence. In _every_ case where there is contributory negligence the defendant could have avoided the injury by ordinary care, for the simple reason that there can be no such thing as contributory negligence unless the defendant be negligent. The error complained of is the same error which was condemned in Cooper _v._ Ry. Co., 56 S. C. 94. The law in this state is settled that contributory negligence as defined in Cooper’s case, _supra_, to _any_ extent, will _always_ defeat plaintiff’s recovery, unless the injury is wantonly or wilfully inflicted; for the law cannot measure how much of the injury is due to the plaintiff’s own fault, and will not recompense one for injury resulting to himself from his own misconduct. The objection to the charge is that it instructed the jury that although plaintiff’s negligence contributed to her injury as a proximate cause, she could recover if the defendant by ordinary care could have avoided the injury. Is it not manifest that such a rule would abolish contributory negligence as a defence? The qualifying terms, “unless the railroad company could have avoided injuring her notwithstanding her negligence,” would necessarily mislead a jury; for they would at once say the railroad company could have avoided the injury by not being negligent in the manner alleged in the complaint, by having suitable rear end lights, by a reasonable lookout, by loud warning of the train’s approach, by running at such slow speed as to enable any one warned to get off the track; and then utterly ignore the defendant’s plea and evidence of contributory negligence, because of the instruction that plaintiff, notwithstanding her negligence which proximately caused her injury, could still recover, if the defendant could have avoided the injury. The jury ought to have been instructed without qualification, that if plaintiff was negligent and that negligence contributed as a proximate cause to her injury, she could not recover, unless the injury was wantonly or wilfully inflicted.

The judgment of the Circuit Court is reversed, and the case remanded for a new trial.

CORDINER _v._ LOS ANGELES TRACTION COMPANY DISTRICT COURT OF APPEALS, SECOND DISTRICT, CALIFORNIA, APRIL 16, 1907. _Reported in 4 California Appellate Decisions, 480._

SHAW, J. Neither of the defendants questioned the right of plaintiff to recover such damages as she had sustained in the collision, but each contended that the other should be held responsible therefor; and with the view of having the jury pass upon the question, the Los Angeles Railway Company asked the court to instruct the jury, in effect, that notwithstanding the negligence of its motorman in driving his car upon the crossing, still if the traction motorman could, after he saw that it was beyond the power of the motorman of the Los Angeles Railway car to avoid the accident, have, by proper care, prevented the collision, then the negligence of the defendant Los Angeles Traction Company was the proximate cause of the injury. In other words, while admitting that plaintiff’s injury resulted from the collision due to the joint or concurrent acts of negligence of defendants, she must be confined in her recovery for such damages to a judgment rendered against the defendant who had the “last clear chance” to avoid the collision and neglected to act upon it. Appellant seeks to apply the well-established principle that “he who last has a clear opportunity of avoiding the accident, by the exercise of proper care to avoid injuring another, must do so.” Esrey _v._ S. Pacific Co., 103 Cal. 541. This rule is only applicable to cases where the defence is based upon the contributory negligence of plaintiff due to his want of care in placing himself in a position of danger, and where he may, notwithstanding his negligence, recover from a defendant, who by the exercise of proper care could have avoided the injury. We are unable to perceive why this rule should apply to plaintiff, who was in no way chargeable, by imputation or otherwise, with negligence; nor are we referred to any authority which supports the proposition. Indeed, all the authorities recognize the right of recovery against either or both of the defendants whose concurring acts of negligence united in producing the injury. 1 Shearman & Redfield on Neg. p. 122; 1 Thompson on Neg. p. 75; Doeg _v._ Cook, 126 Cal. 213; Tompkins _v._ Clay St. Ry. Co., 66 Cal. 163; Pastene _v._ Adams, 49 Cal. 87.[195]

STILES _v._ GEESEY SUPREME COURT, PENNSYLVANIA, MAY 30, 1872. _Reported in 71 Pennsylvania State Reports, 439._

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of York County.

## Action on the case by Jacob B. Geesey against Thomas Stiles, for alleged

injury by the negligence of William Stiles, son of defendant, by which plaintiff’s horse and carriage were damaged.[196]

Plaintiff’s wife, driving in a light carriage of plaintiff’s, hitched her horse to a tree on the road, and went into a friend’s house. The carriage projected into the travelled part of the road. Whilst the carriage was so left, the defendant’s son, William Stiles, was driving his father’s team with a loaded wagon along the road. He got off to do something to his wagon; and seeing an acquaintance in a neighboring barn, stopped a moment to exchange a few words with him, the team moving on slowly at the time with the load up the hill, keeping the travelled track of the road till the front horse was just behind plaintiff’s carriage standing unattended where it was left. At this point of time William Stiles was behind his own wagon, at some distance from it; and did not see the obstruction in the road in time to avoid a collision. The wagon collided with the carriage. Stiles halloed “Whoa,” and his horses stopped. In the collision, the plaintiff’s horse was fatally injured.

The third point of the plaintiff, which was affirmed in the charge to the jury by Fisher, P. J., is as follows:—

“That Thomas Stiles cannot excuse the negligence of William Stiles by showing that the plaintiff’s property was placed where it received the injury by want of ordinary care by Mrs. Geesey, if, in the opinion of the jury such want is imputable to her, should the jury believe that William Stiles was chargeable with negligence in leaving his team and permitting it to go along the highway unattended.”

_Verdict for plaintiff._

READ, J. [After stating the facts.] We have taken in brief, the defendant’s statement of his defence, which fairly raises the question of contributory negligence. “It is an incontestable principle that where the injury complained of is the product of mutual or concurring negligence, no action for damages will lie. The parties being mutually in fault there can be no apportionment of the damages. The law has no scales to determine in such cases whose wrong-doing weighed most in the compound that occasioned the mischief:” per Woodward, J., 12 Harris, 469.

“The question presented to the Court or the jury is never one of comparative negligence, as between the parties; nor does very great negligence on the part of a defendant so operate to strike a balance of negligence as to give a judgment to a plaintiff whose own negligence contributes in any degree to the injury.” Wilds _v._ Hudson River Railroad Co., 24 N. Y. 432.

The third error assigned is that the Court erred in their charge to the jury on the plaintiff’s third point, which was as follows: “That Thomas Stiles cannot excuse the negligence of William Stiles by showing that the plaintiff’s property was placed where it received the injury, by want of ordinary care by Mrs. Geesey, if in the opinion of the jury such want is imputable to her, should the jury believe William Stiles was chargeable with negligence, in leaving his team and permitting it to go along the highway unattended,” which point the Court affirmed, holding that although there was contributory negligence on the part of the plaintiff, he was entitled to recover from the defendant on account of his negligence. This was a binding instruction upon the jury, leaving nothing for them to inquire into practically, except the negligence of the defendant. In this the Court committed a clear error, and the judgment must be reversed, and _venire de novo_ awarded.

RADLEY _v._ LONDON AND NORTH WESTERN RAILWAY COMPANY IN THE HOUSE OF LORDS, DECEMBER 1, 1876. _Reported in Law Reports, 1 Appeal Cases, 754._

This was an appeal against a decision of the Court of Exchequer Chamber.

The appellants were the plaintiffs in an action brought in the Court of Exchequer, in which they claimed to recover damages for the destruction of a bridge occasioned, as they alleged, by the negligence of the defendants’ servants. The plaintiffs were owners of the Sankey Brook Colliery, in the county of Lancaster, which was situated near a branch line of the defendants’ railway. There was a siding belonging to the plaintiffs, which communicated with the railway, and the defendants’ servants were in the habit of taking trucks loaded with coals from this siding, in order to run them on the railway to forward them to their destination, and also of bringing back empty trucks and running them from the railway on to the siding. On Saturday after working hours, when all the colliery men had gone away, the defendants’ servants ran some of the plaintiffs’ empty trucks from the railway upon the siding and there left them. In that position they remained. One of the watchmen employed by the plaintiffs knew that they were there, but nothing was done to remove them to a different place. In the first of these trucks had been placed a truck which had broken down, and the height of the two trucks combined was nearly eleven feet. There was, in advance of the spot where the trucks had been left, a bridge placed over a part of the siding, the span of which bridge was about eight feet from the ground. On Sunday afternoon the defendants’ servants brought a long line of empty trucks belonging to the plaintiffs, and ran them on the line of the siding, pushing on the first set of trucks in front. Some resistance was perceived, and the pushing force of the engine employed was increased, and the result was, as the two trucks at the head of the line could not pass under the bridge, they struck with great force against it and broke it down.[197] For the damage thereby occasioned this action was brought. The defence was contributory negligence; it being insisted that the plaintiffs ought to have moved the first set of trucks to a safe place, or at all events, not to have left the truck with the disabled truck in it so as to be likely to occasion mischief. At the trial before Mr. Justice Brett, at the Summer Assizes at Liverpool, in 1873, the learned judge told the jury that “you must be satisfied that the plaintiffs’ servants did not do anything which persons of ordinary care, under the circumstances, would not do, or that they omitted to do something which persons of ordinary care would do.... It is for you to say entirely as to both points; but the law is this, the plaintiffs must have satisfied you that this happened by the negligence of the defendants’ servants, and without any contributory negligence of their own, in other words that it was solely by the negligence of the defendants’ servants. If you think it was, then your verdict will be for the plaintiffs. If you think it was not solely by the negligence of the defendants’ servants, your verdict must be for the defendants.”[198] The jurors having, on this direction, stated that they thought there was contributory negligence on the part of the plaintiffs, the learned judge directed that the verdict should be entered for the defendants, but reserved leave for the plaintiffs to move.

A rule having been obtained for a new trial, it was after argument before Barons Bramwell and Amphlett made absolute.[199] On appeal to the Exchequer Chamber the decision was, by Justices Blackburn, Mellor, Lush, Brett, and Archibald (_diss._ Justice Denman), reversed.[200] This appeal was then brought.[201]

LORD PENZANCE. My Lords, the action out of which this appeal arises is an action charging the defendants with negligence (through their servants) in so managing the shunting of some empty coal-wagons as to knock down a bridge and some staging and some colliery head-gearing, which stood upon it, and belonged to the plaintiffs.

The first question on the appeal is, whether the Court of Exchequer Chamber was right in holding that there was any evidence, proper to be submitted to the jury, tending to the conclusion that the plaintiffs themselves had been guilty of some negligence in the matter, and that such negligence had contributed to produce the accident and injury of which they complained.

The general facts of the case, the particular facts which gave rise to the imputation of negligence, and the contention of both sides as to the fair result of these facts, are stated in the judgment of the Court of Exchequer delivered by Baron Bramwell. His Lordship here read the statement from Mr. Baron Bramwell’s judgment.[202]

It may be admitted that this is a fair and full statement of the arguments and considerations on the one side, and on the other, upon which the question of the plaintiffs’ negligence had to be decided. But it had to be decided by the jurors, and not by the Court, and I am unable to perceive any reason why the learned judge did wrong in submitting these arguments and considerations to their decision accordingly. The bare statement of them is enough to show that there were in the case facts and circumstances sufficient at least to raise the question of negligence, whether they were a sufficient proof of negligence or not.

The decision, therefore, of the Exchequer Chamber upon this matter ought, I think, to be upheld.

The remaining question is whether the learned judge properly directed the jury in point of law. The law in these cases of negligence is, as was said in the Court of Exchequer Chamber, perfectly well settled and beyond dispute.

The first proposition is a general one, to this effect, that the plaintiff in an action for negligence cannot succeed if it is found by the jury that he has himself been guilty of any negligence or want of ordinary care which contributed to cause the accident.

But there is another proposition equally well established, and it is a qualification upon the first, namely, that though the plaintiff may have been guilty of negligence, and although that negligence may, in fact, have contributed to the accident, yet if the defendant could in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiffs’ negligence will not excuse him.

This proposition, as one of law, cannot be questioned. It was decided in the case of Davies _v._ Mann, 10 M. & W. 546, supported in that of Tuff _v._ Warman, 5 C. B. (N. S.) 573; 27 L. J. C. P. 322, and other cases, and has been universally applied in cases of this character without question.

The only point for consideration, therefore, is whether the learned judge properly presented it to the mind of the jury.

It seems impossible to say that he did so. At the beginning of his summing-up he laid down the following as the propositions of law which governed the case: It is for the plaintiffs to satisfy you that this accident happened through the negligence of the defendants’ servants, and as between them and the defendants, that it was solely through the negligence of the defendants’ servants. They must satisfy you that it was solely by the negligence of the defendants’ servants, or, in other words, that there was no negligence on the part of their servants contributing to the accident; so that, if you think that both sides were negligent, so as to contribute to the accident, then the plaintiffs cannot recover.

This language is perfectly plain and perfectly unqualified, and in case the jurors thought there was any contributory negligence on the part of the plaintiffs’ servants, they could not, without disregarding the direction of the learned judge, have found in the plaintiffs’ favor, however negligent the defendants had been, or however easily they might with ordinary care have avoided any accident at all.

The learned judge then went on to describe to the jury what it was that might properly be considered to constitute negligence, first in the conduct of the defendants, and then in the conduct of the plaintiffs; and having done this, he again reverted to the governing propositions of law, as follows: “There seem to be two views. It is for you to say entirely as to both points. But the law is this, the plaintiff must have satisfied you that this happened by the negligence of the defendants’ servants, and without any contributory negligence of their own; in other words, that it was solely by the negligence of the defendants’ servants. If you think it was, then your verdict will be for the plaintiffs. If you think it was not solely by the negligence of the defendants’ servants, your verdict must be for the defendants.”

This, again, is entirely without qualification, and the undoubted meaning of it is, that if there was any contributory negligence on the part of the plaintiffs, they could in no case recover. Such a statement of the law is contrary to the doctrine established in the case of Davies _v._ Mann, 10 M. & W. 546, and the other cases above alluded to, and in no part of the summing-up is that doctrine anywhere to be found. The learned counsel were unable to point out any passage addressed to it.

It is true that in part of his summing-up the learned judge pointed attention to the conduct of the engine-driver, in determining to force his way by violence through the obstruction, as fit to be considered by the jury on the question of negligence; but he failed to add that if they thought the engine-driver might at this stage of the matter by ordinary care have avoided all accident, any previous negligence of the plaintiffs would not preclude them from recovering.

In point of fact the evidence was strong to show that this was the immediate cause of the accident, and the jury might well think that ordinal care and diligence on the part of the engine-driver would, notwithstanding any previous negligence of the plaintiffs in leaving the loaded-up truck on the line, have made the accident impossible. This substantial defect of the learned judge’s charge is that that question was never put to the jury.

On this point, therefore, I propose to move that your Lordships should reverse the decision of the Exchequer Chamber, and direct a new trial.

THE LORD CHANCELLOR (Lord Cairns). My Lords, I have had the advantage of considering the opinion which has just been expressed to your Lordships in this case by my noble and learned friend, and, concurring as I do with every word of it, I do not think it is necessary that I should do more than say that I hope your Lordships will agree to the motion which he has proposed.

LORD BLACKBURN. My Lords, I agree entirely with the noble Lord who has first spoken as to what were the proper questions for the jury in this case, and that they were not decided by the jury. I am inclined to think that the learned judge did in part of his summing-up sufficiently ask the proper questions, had they been answered, but unfortunately he failed to have an answer from the jury to those questions, it appearing by the case that the only finding was as to the plaintiffs’ negligence.

I agree, therefore, in the result that there should be a new trial.

LORD GORDON. My Lords, I entirely concur in the motion which has been submitted to your Lordships by my noble and learned friend on the other side of the House. The question is one which has given rise to some difficulty in the courts of Scotland, but I think that it is very likely that the opinion which has been expressed in this case will be regarded as a very useful authority for guiding their decisions.[203]

_Judgment of the Court of Exchequer Chamber reversed._ _Judgment of the Court of Exchequer restored, and a new trial ordered, with costs._ _Lords’ Journals_, December 1, 1876.

NASHUA IRON AND STEEL CO. _v._ WORCESTER & NASHUA RAILROAD CO. SUPREME COURT, NEW HAMPSHIRE, JUNE, 1882. _Reported in 62 New Hampshire Reports, 159._

Case. Demurrer to the declaration.

CARPENTER, J. The declaration alleges that by the defendants’ careless management of their engine and cars, the plaintiffs’ horse was frightened, and caused to run upon and injure Ursula Clapp, who was without fault; that Clapp brought her action therefor against the plaintiffs, and recovered judgment for damages, which they paid; that the defendants had notice of, and were requested to defend, the suit. The defendants demur. Inasmuch as Clapp could not have recovered against the plaintiffs unless they were in fault (Brown _v._ Collins, 53 N. H. 442; Lyons _v._ Child, 61 N. H. 72), it must be taken that their negligence co-operated with that of the defendants to produce the injury. If the plaintiffs were not liable in that action because their negligence was not, and the defendants’ negligence was, the cause of the accident, the objection is not now open to the defendants. Littleton _v._ Richardson, 34 N. H. 179. In relation to Clapp, both parties were wrong-doers. She could pursue her remedy against either or both of them at her election. Burrows _v._ March Gas Co., L. R. 5 Ex. 67, 71.

One of several wrong-doers, who has been compelled to pay the damages caused by the wrong, has in general no remedy against the others. He cannot make his own misconduct the ground of an action in his favor. To this proposition there are, it has been said, so many exceptions, that it can hardly, with propriety, be called a general rule. Bailey _v._ Bussing, 28 Conn. 455. Its application is restricted to cases where the person seeking redress knew, or is presumed to have known, that the act for which he has been mulcted in damages was unlawful. Jacobs _v._ Pollard, 10 Cush. 287, 289; Coventry _v._ Barton, 17 Johns. 142. In many instances several parties may be liable in law to the person injured, while as between themselves some of them are not wrong-doers at all; and the equity of the guiltless to require the actual wrong-doer to respond for all the damages, and the equally innocent to contribute his proportion, is complete. Wooley _v._ Batte, 2 C. & P. 417; Pearson _v._ Skelton, 1 M. & W. 504; Betts _v._ Gibbins, 2 A. & E. 57; Adamson _v._ Jarvis, 4 Bing. 66; Avery _v._ Halsey, 14 Pick. 174; Gray _v._ Boston Gas Light Co., 114 Mass. 149; Churchill _v._ Holt, 127 Mass. 165, and 131 Mass. 67; Bailey _v._ Bussing, _supra_; Smith _v._ Foran, 43 Conn. 244. These cases, instead of being exceptions to the rule, seem rather not to fall within it. The right of recovery rests in the one case upon the principle that he who without fault on his part is injured by another’s wrongful act is entitled to indemnity, and in the other upon the doctrine of contribution. One of two masters, who is compelled to pay damages by reason of his servant’s negligence, may have contribution from the other because he has removed a burden common to both. They may recover indemnity of the servant, because as against him they are without fault, and are directly injured by his misconduct. One who is so far innocent that he can recover for an injury to his person or property, may also recover whatever sum he, by reason of his relation to the wrong, has been compelled to pay to a third person. If the plaintiffs could recover for an injury to their horse, caused by the accident, they may recover the sum which they paid to Clapp.

The declaration is general. It does not disclose the particulars of the plaintiffs’ negligence, by reason of which Clapp recovered against them. Under it, cases differing widely in their facts and legal aspects may be proved. Among others possible, it may be shown that the horse was in the charge of the plaintiffs’ servants, who might have prevented its fright or its running after the fright, or if they could do neither, that they might nevertheless have avoided the injury to Clapp; or it may appear that the plaintiffs’ negligence consisted solely in permitting the horse, whether attended or unattended by their servants, to be at the place where it was at the time of the fright. The generality of the declaration does not render it bad in law. Corey _v._ Bath, 35 N. H. 531. If the plaintiffs are entitled to judgment upon any state of facts provable under it, the demurrer must be overruled. Whether the plaintiffs can recover in any case, and if so, in what cases, possible to be proved under the declaration, are speculative or hypothetical questions, of which none may, and all cannot, arise. They involve substantially the whole subject of the law relating to mutual negligence. The case might properly be discharged without considering them (Smith _v._ Cudworth, 24 Pick. 196), and the parties required to present by the pleadings, or by a verdict, the facts upon which their rights depend. A brief consideration, however, of the general questions involved, may, it is thought, facilitate a trial, and save expense to the parties.

Ordinary care is such care as persons of average prudence exercise under like circumstances. Tucker _v._ Henniker, 41 N. H. 317; Sleeper _v._ Sandown, 52 N. H. 244; Aldrich _v._ Monroe, 60 N. H. 118. Every one in the conduct of his lawful business is bound to act with this degree of care, and if he fails to do so is responsible for the consequences. It follows that a person injured by reason of his want of ordinary care, or (since the law makes no apportionment between actual wrong-doers) by the joint operation of his own and another’s negligence, is remediless. This general rule of law justly applied to the facts determines, it is believed, the rights of the parties in all actions for negligence. In its application, the law, as in various other cases, deals with the immediate cause,—the cause as distinguished from the occasion,—and looks at the natural and reasonably to be expected effects. Cowles _v._ Kidder, 24 N. H. 383; Hooksett _v._ Company, 44 N. H. 108; McIntire _v._ Plaisted, 57 N. H. 608; Solomon _v._ Chesley, 59 N. H. 243; China _v._ Southwick, 12 Me. 238; Lowery _v._ Western U. Tel. Co., 60 N. Y. 198; Rigby _v._ Hewitt, 5 Exch. 243; Blyth _v._ Birmingham Waterworks Co., 11 Exch. 781; Bank of Ireland _v._ Evans’s Charities, 5 H. L. Ca. 389, 410, 411; Ionides _v._ Marine Ins. Co., 14 C. B. N. S. 259; Romney Marsh _v._ Trinity House, L. R. 5 Ex. 204; Holmes _v._ Mather, L. R. 10 Ex. 268; Sharp _v._ Powell, L. R. 7 C. P. 253; Pearson _v._ Cox, 2 C. P. Div. 369; Tutein _v._ Hurley, 98 Mass. 211; Bro. Leg. Max. 215.

## Actions for negligence may, for convenience of consideration, be

separated into four classes, namely,—where, upon the occasion of the injury complained of (1) the plaintiff, (2) the defendant, or (3) neither party was present, and (4) where both parties were present. In all of them it may happen that both parties were more or less negligent.

## Actions upon the statute of highways are a common example of the first

class. The negligence of the defendant, however great, does not relieve the plaintiff from the duty of exercising ordinary care. If, notwithstanding the defective condition of the highway, this degree of care on the part of the plaintiff would prevent the accident, his and not the defendant’s negligence, though but for the latter it could not happen, is, in the eye of the law, its sole cause. Farnum _v._ Concord, 2 N. H. 394; Butterfield _v._ Forrester, 11 East, 60. In this class of cases, an injury which the plaintiff’s negligence contributes to produce could not happen without it. The not uncommon statement that the plaintiff cannot recover if his negligence contributes in any degree to cause the injury, is strictly correct, although the word “contribute” may be, as Crompton, J., in Tuff _v._ Warman, 5 C. B. N. S. 584, says it is, “a very unsafe word to use,” and “much too loose.” The result is the same whether the plaintiff acts with full knowledge of the danger, or, by reason of a want of proper care, fails to discover it seasonably. If he is not bound to anticipate, and in advance provide for, another’s negligence, he may not wilfully or negligently shut his eyes against its possibility. He is bound to be informed of everything which ordinary care would disclose to him. He can no more recover for an injury caused by driving into a dangerous pit, of which he is ignorant, but of which ordinary care would have informed him, than for one caused by carelessly driving into a known pit. Norris _v._ Litchfield, 35 N. H. 271; Clark _v._ Barrington, 41 N. H. 44; Tucker _v._ Henniker, 41 N. H. 317; Winship _v._ Enfield, 42 N. H. 213, 214; Underhill _v._ Manchester, 45 N. H. 220.

The defendant’s negligence being found or conceded, the remaining question is, whether the plaintiff, by the exercise of ordinary care, could have escaped the injury. If he could not, he is free from fault, and is entitled to recover. If he could, he not only cannot recover for his own injury, but is himself liable to the other party, if the latter is injured; and the case becomes one of the second class, of which Davies _v._ Mann, 10 M. & W. 546, is an instance. The defendant is liable here for the same reason that, as plaintiff, he could not recover,—that is to say, because ordinary care on his part would have prevented the injury. The fact that one has carelessly exposed his property in a dangerous situation does not absolve his neighbors from the obligation of conducting themselves in regard to it with ordinary care. An injury which that degree of care would prevent is caused by the want of it, and not by the owner’s negligence in leaving his property in a perilous position. A surgeon, called to set a leg carelessly broken, cannot successfully urge, in answer to a suit for mal-practice, that the patient’s negligence in breaking his leg caused the crooked or shortened limb. Lannen _v._ Albany Gas-light Co., 44 N. Y. 459, 463; Hibbard _v._ Thompson, 109 Mass. 286, 289. So far as the question of civil liability is concerned, there is no distinction, except it may be in the measure of damages (Fay _v._ Parker, 53 N. H. 342, Bixby _v._ Dunlap, 56 N. H. 456), between wilful and negligent wrongs. One who, without reasonable necessity, kills his neighbor’s ox, found trespassing in his field, is equally liable whether he does it purposely or carelessly. Aldrich _v._ Wright, 53 N. H. 398; McIntire _v._ Plaisted, 57 N. H. 606; Cool. Torts, 688–694. Mann would be no more liable for wilfully shooting the fettered ass which Davies has carelessly left in the public highway, than he is for the running over it, which, by ordinary care, he could avoid. The owner’s negligence, in permitting the ox to stray and in leaving the ass fettered in the street, although without it the injury would not happen, is no more the cause, in a legal sense, of the negligent than of the wilful wrong. In each case alike,—as in that of the broken leg,—it merely affords the wrong-doer an opportunity to do the mischief. Bartlett _v._ Boston Gas-light Co., 117 Mass. 533; Clayards _v._ Dethick, 12 Q. B. 439, 445.

Knowledge, or its equivalent, culpable ignorance, and ignorance without fault of the situation, are circumstances by which, among others, the requisite measure of vigilance is determined. Griffin _v._ Auburn, 58 N. H. 121, 124; Palmer _v._ Dearing, 93 N. Y. 7; Robinson _v._ Cone, 22 Vt. 213. The question of contributory negligence is not involved. The wrong, if any, is the negligent injury of property carelessly exposed to danger. The only question is, whether the defendant could have prevented it by ordinary care. If he could not, he is without fault, and not liable. If he could, his negligence is, in law, the sole cause of the injury. Davies _v._ Mann, 10 M. & W. 546; Radley _v._ London, &c. Railway, 1 App. Ca. 754; Mayor of Colchester _v._ Brooke, 7 Q. B. 377; Isbell _v._ N. Y. & N. H. Railroad, 27 Conn. 393; Trow _v._ Vt. Central Railroad, 24 Vt. 487; Harlan _v._ St. Louis, &c. Railroad, 64 Mo. 480; Kerwhacker _v._ Cleveland, &c. Railroad, 3 Ohio St. 172.

The law is not affected by the presence or the absence of the parties, nor by the difficulty of applying it to complicated facts. To warrant a recovery where both parties are present at the time of the injury, as well as in other cases, ability on the part of the defendant must concur with non-ability on the part of the plaintiff to prevent it by ordinary care. Their duty to exercise this degree of care is equal and reciprocal; neither is exonerated from his obligation by the present or previous misconduct of the other. The law no more holds one responsible for an unavoidable, or justifies an avoidable, injury to the person of one who carelessly exposes himself to danger, than to his property, similarly situated in his absence. He who cannot prevent an injury negligently inflicted upon his person or property by an intelligent agent, “present and acting at the time” (State _v._ Railroad, 52 N. H. 528, 557; White _v._ Winnisimmet Co., 7 Cush. 155, 157; Robinson _v._ Cone, 22 Vt. 213), is legally without fault, and it is immaterial whether his inability results from his absence, previous negligence, or other cause. On the other hand, his neglect to prevent it, if he can, is the sole or co-operating cause of the injury. No one can justly complain of another’s negligence, which, but for his own wrongful interposition, would be harmless. Parker _v._ Adams, 12 Met. 415.

Cases of this class assume a great variety of aspects. While all are governed by the fundamental principle, that he only who by ordinary care can and does not prevent an injury, is responsible in damages, it is impossible to formulate a rule in language universally applicable. A statement of the law correct in its application to one state of facts may be inaccurate when applied to another. Instructions to the jury proper and sufficient in a case of the first class, would be not only inappropriate but incorrect in one of the second class. The doctrine laid down in Tuff _v._ Warman, 5 C. B. N. S. 573, 585, however just and well suited to the evidence in that case, was held erroneous as applied to the facts in Murphy _v._ Deane, 101 Mass. 455, 464–466, and, as a general proposition, seems indefensible.

An accident may result from a hazardous situation caused by the previous negligence of one or both parties. If, at the time of the injury, the defendant is unable to remove the danger which his negligence has created, the case becomes, in substance, one of the first class; the plaintiff can recover or not, according as, by ordinary care, he can or cannot protect himself from the natural consequences of the situation. If the plaintiff, in like manner, is unable to obviate the danger which his prior negligence has produced, the case becomes, substantially, one of the second class; he can recover or not, according as the defendant, by the same degree of care, can or cannot avoid the natural consequences of such negligence. If due care on the part of either at the time of the injury would prevent it, the antecedent negligence of one or both

## parties is immaterial, except it may be as one of the circumstances by

which the requisite measure of care is to be determined. In such a case the law deals with their behavior in the situation in which it finds them at the time the mischief is done, regardless of their prior misconduct. The latter is _incuria_, but not _incuria dans locum injuriae_,—it is the cause of the danger; the former is the cause of the injury. Metropolitan Railway _v._ Jackson, 3 App. Ca. 193, 198; Dublin, &c. Railway _v._ Slattery, 3 App. Ca. 1155, 1166; Davey _v._ London, &c. Railway, 12 Q. B. Div. 70, 76; Churchill _v._ Rosebeck, 15 Conn. 359, 363–365.

If a person, who by his carelessness is put in a position perilous to himself and to others, while in that position does all that a person of average prudence could, he is guilty of no wrong towards another who embraces the opportunity negligently to injure him, or who receives an injury which proper care on his part would prevent. It would doubtless be esteemed gross carelessness to navigate the Atlantic in a vessel without a rudder, but if the owner, while sailing his rudderless ship with ordinary care, is negligently run down by a steamer, the latter must pay the damages, and can recover none if it is injured. Dowell _v._ Steam Navigation Co., 5 E. & B. 195; Haley _v._ Earle, 30 N. Y. 208; Hoffman _v._ Union Ferry Co., 47 N. Y. 176. If the vessel, by reason of its lack of a rudder, runs upon and injures the steamer, both being in the exercise of ordinary care at the time, the former must pay the damages. He who by his negligence has produced a dangerous situation is responsible for an injury resulting from it to one who is without fault.

If, at the time of the injury, each of the parties, or, in the absence of antecedent negligence, if neither of them could prevent it by ordinary care, there can be no recovery. The comparatively rare cases of simultaneous negligence will ordinarily fall under one or the other of these heads. If the accident results from the combined effect of the negligence of both parties, that of neither alone being sufficient to produce it, proof by the plaintiff that due care on the part of the defendant would have prevented it will not entitle him to recover, because like care on his own part would have had the same effect. If the misconduct of each party is an adequate cause of the injury, so that it would have occurred by reason of either’s negligence without the co-operating fault of the other, proof by the plaintiff that by due care he could not have prevented it will not entitle him to recover, because no more could the defendant have prevented it by like care. Murphy _v._ Deane, 101 Mass. 464, 465; Churchill _v._ Holt, 131 Mass. 67. In each case alike they are equally in fault. To warrant a recovery, the plaintiff must establish both propositions, namely, that by ordinary care he could not, and the defendant could, have prevented the injury. State _v._ Railroad, 52 N. H. 528; Bridge _v._ Grand Junction Railway, 3 M. & W. 244; Dowell _v._ Steam Navigation Co., 5 E. & B. 195; Tuff _v._ Warman, 5 C. B. N. S. 573; Davey _v._ London, &c. Railway, 12 Q. B. Div. 70; Munroe _v._ Leach, 7 Met. 274; Lucas _v._ New Bedford, &c. Railroad, 6 Gray, 64; Murphy _v._ Deane, 101 Mass. 455; Hall _v._ Ripley, 119 Mass. 135; Button _v._ Hudson, &c. Railroad, 18 N. Y. 248; Austin _v._ N. J. Steamboat Co., 43 N. Y. 75; Barker _v._ Savage, 45 N. Y. 194; Cool. Torts, 674, 675, and cases cited.

In the comparatively unfrequent cases of the third class, a negligent plaintiff can seldom, if ever, recover. Where both parties are careless, they are usually, if not always, equally in fault; ordinary care on the part of either would prevent the injury. Not being present on the occasion of the accident, neither can, in general, guard against the consequences of the other’s negligence. Blyth _v._ Topham, Cro. Jac. 158; Sybray _v._ White, 1 M. & W. 435; Williams _v._ Groucott, 4 B. & S. 149; Lee _v._ Riley, 18 C. B. N. S. 722; Wilson _v._ Newberry, L. R. 7 Q. B. 31; Lawrence _v._ Jenkins, L. R. 8 Q. B. 274; Firth _v._ Bowling Iron Co., 3 C. P. Div. 254; Crowhurst _v._ Amersham Burial Board, 4 Ex. Div. 5; Bush _v._ Brainard, 1 Cow. 78; Lyons _v._ Merrick, 105 Mass. 71; Page _v._ Olcott, 13 N. H. 399.

If there are actions for negligence of such a character that the rights of the parties are not determinable by the application of these principles, the present case is not one of them. If, notwithstanding the defendants’ negligence, the plaintiffs, by ordinary care, could have prevented the fright of the horse, or its running, after the fright, or, in the absence of ability to do either, if they could have avoided the running upon and injury to Clapp, their misconduct, and not that of the defendants, was the cause of the accident, and they cannot recover. On the other hand, if the plaintiffs’ carelessness consisted solely in permitting the horse to be where it was at the time, and ordinary care by the defendants would have prevented its fright, or, if the plaintiffs, by proof of any state of facts competent to be shown under the declaration, can make it appear that at the time of the occurrence they could not, and the defendants could, by such care have prevented the accident, they are entitled to recover.

_Demurrer overruled._

OATES _v._ METROPOLITAN STREET RAILWAY COMPANY SUPREME COURT, MISSOURI, MAY 21, 1902. _Reported in 168 Missouri Reports, 535, 547–549._

MARSHALL, J.... Instructions three and seven given for the defendant sharply drew a distinction between the negligence of the defendant and the contributory negligence of the plaintiff. Those instructions declared the law to be that the defendant was not liable unless its negligence was the direct cause of the injury, while the plaintiff was not entitled to recover if his negligence “but contributes to the injury.” That is, that the defendant was liable only for direct negligence, while the plaintiff was cut off from recovery if he was guilty of any negligence, however slight or remote or indirect it may have been.

The law is that a defendant is liable if his negligence was the direct and proximate cause of the injury, unless the plaintiff has also been guilty of such negligence as directly contributed to the happening of the injury, and the defendant is not liable no matter how negligent he may have been if the plaintiff’s negligence has thus contributed to the injury, for the doctrine of comparative negligence has never obtained in this State. Hurt _v._ Railroad, 94 Mo. 264. In each instance the negligence and the contributory negligence must be direct, that is, must have entered into and formed a part of the efficient cause of the accident. Hoepper _v._ Hotel Co., 142 Mo. 388; Beach on Contr. Neg. (2 ed.), sec. 24; Matthews _v._ Toledo, 21 Ohio Cir. Ct. Rep. 69; Dunkman _v._ Railroad, 16 Mo. App. 548; Corcoran _v._ Railroad, 105 Mo. 399; Murray _v._ Railroad, 101 Mo. 236; Kellny _v._ Railroad, 101 Mo. 67; Hicks _v._ Railroad, 46 Mo. App. 403; Pinnell _v._ Railroad, 49 Mo. App. 170; Meyers _v._ Railroad, 59 Mo. 223.

Mere negligence, without any resulting damage, no more bars a plaintiff’s recovery than it creates a liability against a defendant. Dickson _v._ Railroad, 124 Mo. 140. Remote negligence which does not become an efficient cause, neither creates nor bars a liability. Kennedy _v._ Railroad, 36 Mo. 351; Meyers _v._ Railroad, 59 Mo. 223. It is only where the plaintiff’s negligence contributes directly to his injury that it precludes his recovery therefor, Moore _v._ Railroad, 126 Mo. 265. And the plaintiff’s contributory negligence must mingle with the defendant’s negligence as a direct and proximate cause in order to bar a recovery. Nolan _v._ Shickle, 69 Mo. 336; Frick _v._ Railroad, 75 Mo. 542.

These instructions were, therefore, erroneous, and as the jury was misdirected and as the plaintiff had made out a _prima facie_ case, he was entitled to have the law properly declared to the jury, and the trial court did right in granting a new trial.[204]

CARPENTER, J., IN NIEBOER _v._ DETROIT ELECTRIC RAILWAY (1901) _128 Michigan, 486, 491, 492._[205]

CARPENTER, J. “... The law by which it is determined whether or not the contributory negligence of the plaintiff bars recovery is very uncertain. The adjudicated cases are by no means harmonious, and there is an irreconcilable conflict between the principles announced by eminent judges and the text-book writers. It has been stated that the plaintiff cannot recover if the injury complained of would not have occurred without his negligence. It has also been stated that plaintiff’s negligence will not bar his recovery if due care on the part of the defendant would have prevented the injury. If the first statement is correct, contributory negligence always prevents a recovery; if the second statement is correct, contributory negligence never prevents recovery. The truth is that the first statement can be correctly applied only in cases of simultaneous negligence, as in the case of an injury to a person while crossing a railway in consequence of his own and the railway company’s negligence. The second statement can be correctly applied only in cases of successive negligence, as in the famous Donkey Case, of Davies _v._ Mann, 10 Mees. & W. 546, where defendant negligently ran into and injured the plaintiff’s donkey, which plaintiff had negligently permitted to go unattended on the highway. The test almost universally approved is whether or not plaintiff’s negligence is the proximate cause of his injury. If it is, he cannot recover; if it is not, he can. Even this test has been criticised on the ground that the term ‘proximate’ is misleading. I think this criticism just and important. The word ‘proximate’ is ordinarily used to indicate the relation between defendant’s negligence and the plaintiff’s injury. As so used, it has not the same meaning that it has when used to indicate the relation between plaintiff’s negligence and plaintiff’s injury. To illustrate, suppose in the case of Davies _v._ Mann, above referred to, that, as a result of the collision between the cart and the donkey, a third person had been injured; I think all will agree that the owner of the donkey, as well as the owner of the cart, would have been liable. See Lynch _v._ Nurdin, 1 Q. B. (N. S.) 29. And we have already seen that the negligence of the owner of the donkey was not so related to the collision as to preclude recovery in a suit by him against the owner of the cart. As used in relation to contributory negligence, the term ‘proximate’ simply means that in some way the relation between plaintiff’s negligence and his injury is more remote than that between defendant’s negligence and the injury.”[206]

DROWN _v._ NORTHERN OHIO TRACTION COMPANY SUPREME COURT, OHIO, MAY 7, 1907. _Reported in 76 Ohio State Reports, 234._

## Action for damage done to plaintiff’s buggy by an electric car which

came up behind it and hit it. Answer: denying that defendant was negligent, and alleging negligence on plaintiff’s part.

On the trial, it appeared that Hardy, plaintiff’s driver, drove upon the track without looking behind to see if a car was coming.

Defendant requested the following instructions:—

(3) If the jury find from the evidence that the plaintiff, through his agent, Hardy, and the defendant were both negligent, and that the negligence of both directly contributed to cause the injury complained of in plaintiff’s petition, then your verdict should be for the defendant.

(4) If the jury find that the negligence of both plaintiff’s agent and the defendant combined so as to directly cause the injury complained of by plaintiff, then your verdict should be for the defendant.

These requests to instruct were refused.

The court, among other instructions, charged in substance as follows:—

If you find that the motorman could, by the exercise of ordinary care, have seen the plaintiff and stopped the car, and that by reason of the failure to stop the car Hardy’s team was knocked down and injured, it would be such negligence on the part of the defendant as would entitle the plaintiff to recover, provided Hardy was free from contributory negligence on his part.

If Hardy was on this track driving south, and you find that he was negligent in being on it as he was, his failure to look or failure to watch to avoid injury, if he was negligent, would not prevent him from recovering in this suit, if the motorman, after discovering him in that position, could have, by the use of reasonable and ordinary care, avoided the injury by stopping the car. [This was a restatement in concrete form of an abstract proposition already stated in the charge.]

In the Common Pleas Court there was a verdict for plaintiff and judgment thereon. The Circuit Court reversed the judgment of the Common Pleas. Plaintiff brought error.[207]

DAVIS, J. Under the issues in this case, evidence was introduced tending to prove that the plaintiff’s agent was guilty of negligence directly contributing to the injury to plaintiff’s property. If the driver of the plaintiff’s team, immediately upon entering Main Street, and without afterwards looking to the north, as he admits, drove southward upon the track until the car coming from the north overtook and collided with the buggy, he was negligent; because the street was open and unobstructed for from two hundred to two hundred and fifty feet from the point at which he entered upon it, and it was not necessary for him to go upon the street railway track, and because, the night being dark, he unnecessarily put himself in a place of obvious danger and continued therein until the moment of the accident, without looking out for an approaching car or doing anything whatever to avoid injury, apparently risking his life and the property of his principal upon the presumption that the defendant’s employees would make no mistakes nor be guilty of any negligence. If, on the other hand, he drove along the street until he came to the obstruction and then turned out upon the track to go around it without again looking, as his own testimony shows that he did not, and was then almost in the same instant struck by the car, he was negligent. Upon either hypothesis, assuming that the defendant was negligent in not keeping a proper lookout, or was otherwise not exercising ordinary care to prevent collision with persons lawfully on its track, the plaintiff could not recover, if it should appear in the case that the negligence of both is contemporaneous and continuing until after the moment of the accident, because, in such case the negligence of each is a direct cause of the injury without which it would not have occurred, rendering it impracticable in all such instances, if not impossible, to apportion the responsibility and the damages. Suppose, for example, that not only the buggy and horses had been injured, but the defendant’s car also, by what standard could the extent of liability of either party be determined? Timmons _v._ The Central Ohio Railroad Co., 6 Ohio St. 105; Village of Conneaut _v._ Naef, 54 Ohio St. 529, 531. In short, there can be no recovery in such a case unless the whole doctrine of contributory negligence, a doctrine founded in reason and justice, should be abolished.

Under these circumstances, therefore, it was not sufficient to say to the jury that if they should find that the motorman who had charge of the car which struck the team, could by the exercise of ordinary care have seen the team and could have stopped the car and that by reason of the failure to do so the team was injured, it would be such negligence by the defendant as would entitle the plaintiff to recover, provided that the plaintiff’s driver was “free from contributory negligence.” The defendant had the right to have the jury specifically instructed, as it requested, that if the jury should find from the evidence that both the plaintiff and the defendant, through their agents, were negligent, and that the negligence of both combined so as to directly cause the injury complained of, then the verdict should be for the defendant. The court refused to so instruct the jury, and the circuit court correctly held that the refusal to so charge was erroneous.

The error in refusing the defendant’s request to charge, was extended and made much more prejudicial when the court, after giving instructions as to contributory negligence by the plaintiff in very general terms, proceeded to impress upon the jury, by repetition and with some emphasis, the doctrine known as “the last chance.” This doctrine is logically irreconcilable with the doctrine of contributory negligence, and accordingly it has been vigorously criticised and warmly defended. Probably, as in many such controversies, the truth lies in middle ground; but it is certain that the rule is applicable only in exceptional cases, and the prevalent habit of incorporating it in almost every charge to the jury in negligence cases, in connection with, and often as a part of, instructions upon the subject of contributory negligence, is misleading and dangerous.

This confusion seems to arise either from misapprehension of the law or a want of definite thinking. The doctrine of the “last chance” has been clearly defined by a well-known text-writer as follows: “Although a person comes upon the track negligently, yet if the servants of the railway company, _after they see_ his danger, can avoid injuring him, they are bound to do so. And, according to the better view with reference to injuries to travellers at highway crossings—as distinguished from injuries to _trespassers_ and _bare licensees_ upon railway tracks at places where they have no legal right to be—the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings; and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them.” 2 Thompson, Negligence, sec. 1629. The italics are the author’s. Now, it must be apparent upon even a slight analysis of this rule that it can be applied only in cases where the negligence of the defendant is proximate and that of the plaintiff remote; for if the plaintiff and the defendant both be negligent and the negligence of both be concurrent and directly contributing to produce the accident, then the case is one of contributory negligence pure and simple. But if the plaintiff’s negligence merely put him in the place of danger and stopped there, not actively continuing until the moment of the accident, and the defendant either knew of his danger, or by the exercise of such diligence as the law imposes on him would have known it, then, if the plaintiff’s negligence did not concurrently combine with defendant’s negligence to produce the injury, the defendant’s negligence is the proximate cause of the injury and that of the plaintiff is a remote cause. This is all there is of the so-called doctrine of “the last clear chance.” A good illustration is found in the case of Railroad Co. _v._ Kassen, 49 Ohio St. 230. Kassen walked through the rear car of the train on which he was a passenger to the rear platform, from which he either stepped off or fell off upon the track, where he lay for about two hours, when he was run over by another train. It was held that, although Kassen may have been negligent in going upon the rear platform and stepping or falling off, yet since the railroad company knew of his peril and had ample time to remove him or to notify the trainmen on the later train, its negligence in not doing so was the proximate cause of Kassen’s death and the negligence of Kassen was remote. In that case the proximate cause and the remote cause were so clearly distinguishable, and it is so very evident from the opinion and the syllabus that this distinction was the real ground of the judgment of the court, that it is somewhat surprising that the doctrine of last chance as stated in that case should have been so often misinterpreted as a qualification of the doctrine of contributory negligence.

It is clear, then, that the last chance rule should not be given as a hit or miss rule in every case involving negligence. It should be given with discrimination. Since the plaintiff can recover only upon the allegations of his petition, if there is no charge in the petition that the defendant after having notice of the plaintiff’s peril could have avoided the injury to plaintiff, and there is no testimony to support such charge, the giving of such a charge would be erroneous. There is no such allegation in the petition in this case. But further, there is testimony tending to prove that the plaintiff’s team was driven upon the street railway track in the night time, ahead of the car, and that it continued on the track for a distance of two hundred and fifty feet until struck by the car, without taking any precaution to avoid accident. Assuming that the defendant was negligent in not seeing the buggy on the track and in not avoiding the accident, yet the plaintiff’s negligence was continuous and was concurrent at the very moment of the collision. It proximately contributed to the collision, for without it the collision would not have occurred. There was no new act of negligence by the defendant, which was independent of the concurrent negligence and which made the latter remote. Therefore there was no place in the case for the doctrine of “the last clear chance.”

[Remainder of opinion omitted.]

_Judgment of Circuit Court affirmed._

MCLAIN, J., IN FULLER _v._ ILLINOIS CENTRAL RAILROAD COMPANY (1911) _100 Mississippi, 705, 716._

MCLAIN, J.... The rule is settled beyond controversy or doubt, first that all that is required of the railroad company as against a trespasser is the abstention from wanton or willful injury, or that conduct which is characterized as gross negligence; second, although the injured party may be guilty of contributory negligence, yet this is no defense if the injury were willfully, wantonly, or recklessly done or the party inflicting the injury was guilty of such conduct as to characterize it as gross; and, third, that the contributory negligence of the party injured will not defeat the action if it is shown that the defendant might by the exercise of reasonable care and prudence have avoided the consequence of the injured party’s negligence. This last principle is known as the doctrine of the “last clear chance.” The origin of this doctrine is found in the celebrated case of Davies _v._ Mann, 10 Mees. & W. 545.... It is impossible to follow this case through its numerous citations in nearly every jurisdiction subject to Anglo-American jurisprudence. For the present it will be sufficient to say that the principle therein announced has met with practically almost universal favor. It has been severely criticised by some text-writers.... The law as enunciated in that case has come to stay....

An analytical examination of the adjudged cases upon this subject will demonstrate the correctness of the above analysis, and, in addition, establish the soundness and technical accuracy announced in Davies _v._ Mann, _supra_. This case has been criticised most severely ... by courts of high authority, but these courts have utterly and entirely failed to appreciate the base upon which the principle is bottomed, and in repudiating the principle do so upon the idea that Davies _v._ Mann establishes the much-abused comparative negligence doctrine, a doctrine repudiated by this court, but established in this state by Laws 1910, ch. 135, p. 125. (But this statute has no reference to the instant case because passed subsequent to the injuries complained of.) In order for the injured party’s negligence to bar recovery, all of the authorities hold that it must be the proximate cause; otherwise, it is not contributory. Now, when it is fully understood that the negligence of the injured party must be the proximate cause in order to bar the remedy (and, as said above, all authorities everywhere, ancient and modern, so affirm), the principle announced in Davies _v._ Mann must, from necessity, be the correct and true rule. If the proximate and immediate cause of the injury—the _causa causans_—is the controlling and determining factor in ascertaining whether the injured party has the right to recover or whether the injuring party is not liable, then it must follow, as night the day, that the party who has the last opportunity to avoid the injury is the one upon whom the blame shall fall. To express the idea differently: If the injured party’s negligence be remote, and not proximate, he can recover against the party who is guilty of negligence proximately contributing or causing the injury. The North Carolina courts have perhaps more satisfactorily and more clearly elucidated this question than have any opinions that have come under the writer’s eye. In Smith _v._ N. & S. R. R. Co., 114 N. C. 728, 19 S. E. 863, 923, 25 L. R. A. 287, it is said that the rule in Davies _v._ Mann simply furnishes a means for ascertaining whether the plaintiff’s negligence is a remote or proximate cause of the injury; that, before the introduction of this rule, any negligence on the part of the plaintiff, which in any degree contributes to the injury, was judicially treated as the proximate cause, and constituted contributory negligence which barred recovery. The same is clearly stated in Nashua Iron & Steel Co. _v._ W. & N. R. R. Co., 62 N. H. 159, 163, _et seq._ The antecedent negligence of the injured party, having been thus relegated to the position of a condition or remote cause of the accident, it cannot be regarded as contributory, since it is well established that negligence, in order to be contributory, must be at least one of the proximate causes.[208]

LORD O’BRIEN, C. J., IN BUTTERLY _v._ MAYOR OF DROGHEDA [1907] _2 Irish Reports, 134, 137._

LORD O’BRIEN, L. C. J.:—

The facts which give rise to the controversy we have to determine, in this case, are comprised within a narrow compass. The plaintiff, on a Saturday morning, was coming into the town of Drogheda in a car driven by himself. Coming near the town he, as he alleged, was overtaken by the horse and car of Mrs. Morgan. She desired to pass. He says he made way for her, and, in doing so, ran against a heap of stones on the road, and his car was upset and he was injured. It appears that there were two heaps of stones on the road. They had been, immediately before the collision, thrown on the road in order that they might be spread on the road. The man who brought the load, and had thrown them on the road, was a servant of the defendants. The intention was to spread them immediately on the road. The man who brought them was in fact, at the time of the accident, engaged in spreading the heap next the town, some little distance from the heap where the accident occurred. Now the first heap, where the accident occurred, was placed on the road in such a position that there was between it and the right side of the road a space of 12 feet, and between this heap and the left side of the road, 6 feet. That is to say, on the right side there was a space sufficient for two cars to pass simultaneously, and on the left a space for one car to pass. The plaintiff’s case was that, Mrs. Morgan overtaking him, he made room for her, pulled to the left, and without any default of his, his car ran upon the heap and was capsized. His case was that Mrs. Morgan caught him exactly where the heap was, and, in endeavoring to avoid her, and without any default or negligence on his part, the accident occurred. Now, three questions were left to the jury:—

1. Were the defendants, by their workmen, guilty of negligence? Yes.

2. Was the plaintiff guilty of negligence? Yes.

And if so—

3. Could the defendants, by the exercise of ordinary care, have avoided the consequence of the plaintiff’s negligence? Yes.

I have invariably refused, in these negligence cases, to leave questions in this form to a jury. This formula appears to me calculated to perplex and embarrass a jury. No doubt this formula is used, and judges do their best to explain it, but I fear that when juries take up the questions in the jury-room, the explanation has not the desired effect. Chief Justice Monahan consistently refused to put the questions in this shape to the jury. I have always tried these cases on two questions: 1st, Were the defendants guilty of negligence? and, 2d, if so, was the defendant’s negligence the real, direct, and immediate cause of the misfortune? Now, the jury in the present case answered the questions submitted to them in the way I have read. I am of opinion that the answer to the question finding that the plaintiff was guilty of negligence, determines the matter in favor of the defendants. It is quite plain, in my opinion, that his negligence was a direct contributory cause of the accident. It was a cause which brought him on the heap of stones. Assuming that there was negligence on the part of the defendants in having the stones there, still his negligence must have contributed to his running up against them. He either did not keep a sufficient lookout, or his unskilful driving brought him on the stones. Getting on the stones, through negligence, was at least a contributory cause of the accident. It directly contributed to the accident. If there be two causes directly contributing to the accident, one the negligence of the defendant and the other the negligence of the plaintiff, the result is a verdict for the defendant.

BRITISH COLUMBIA ELECTRIC RAILWAY COMPANY _v._ LOACH IN THE PRIVY COUNCIL, JULY 26, 1915. _Reported in [1916] Appeal Cases, 719._

LORD SUMNER. This is an appeal from a judgment of the Court of Appeal of British Columbia in favor of the administrator of the estate of Benjamin Sands, who was run down at a level crossing by a car of the appellant railway company and was killed. One Hall took Sands with him in a cart, and they drove together on to the level crossing, and neither heard nor saw the approaching car till they were close to the rails and the car was nearly on them. There was plenty of light and there was no other traffic about. The verdict, though rather curiously expressed, clearly finds Sands guilty of negligence in not looking out to see that the road was clear. It was not suggested in argument that he was not under a duty to exercise reasonable care, or that there was not evidence for the jury that he had disregarded it. Hall, who escaped, said that they went “right on to the track,” when he heard Sands, who was sitting on his left, say “Oh,” and looking up saw the car about fifty yards off. He says he could then do nothing, and with a loaded wagon and horses going two or three miles an hour he probably could not. It does not seem to have been suggested that Sands could have done any good by trying to jump off the cart and clear the rails. The car knocked cart, horses, and men over, and ran some distance beyond the crossing before it could be stopped. It approached the crossing at from thirty-five to forty-five miles an hour. The driver saw the horses as they came into view from behind a shed at the crossing of the road and the railway, when they would be ten or twelve feet from the nearest rail, and he at once applied his brake. He was then 400 feet from the crossing. If the brake had been in good order it should have stopped the car in 300 feet. Apart from the fact that the car did not stop in time, but overran the crossing, there was evidence for the jury that the brake was defective and inefficient and that the car had come out in the morning with the brake in that condition. The jury found that the car was approaching at an excessive speed and should have been brought under complete control, and although they gave as their reason for saying so the presence of possible passengers at the station by the crossing, and not the possibility of vehicles being on the road, there can be no mistake in the matter, and their finding stands. It cannot be restricted, as the trial judge and the appellants sought to restrict it, to a finding that the speed was excessive for an ill-braked car, but not for a properly-braked car, or to a finding that there was no negligence except the “original” negligence of sending the car out ill-equipped in the morning.

Clearly if the deceased had not got on to the line he would have suffered no harm, in spite of the excessive speed and the defective brake, and if he had kept his eyes about him he would have perceived the approach of the car and would have kept out of mischief. If the matter stopped there, his administrator’s action must have failed, for he would certainly have been guilty of contributory negligence. He would have owed his death to his own fault, and whether his negligence was the sole cause or the cause jointly with the railway company’s negligence would not have mattered.

It was for the jury to decide which portions of the evidence were true, and, under proper direction, to draw their own inferences of fact from such evidence as they accepted. No complaint was made against the summing-up, and there has been no attempt to argue before their Lordships that there was not evidence for the jury on all points. If the jury accepted the facts above stated, as certainly they well might do, there was no further negligence on the part of Sands after he looked up and saw the car, and then there was nothing that he could do. There he was, in a position of extreme peril and by his own fault, but after that he was guilty of no fresh fault. The driver of the car, however, had seen the horses some perceptible time earlier, had duly applied his brakes, and if they had been effective he could, as the jury found, have pulled up in time. Indeed, he would have had 100 feet to spare. If the car was 150 feet off when Sands looked up and said “Oh,” then each had the other in view for fifty feet before the car reached the point at which it should have stopped. It was the motorman’s duty, on seeing the peril of Sands, to make a reasonable use of his brakes in order to avoid injuring him, although it was by his own negligence that Sands was in danger. Apparently he did his best as things then were, but partly the bad brake and partly the excessive speed, for both of which the appellants were responsible, prevented him from stopping, as he could otherwise have done. On these facts, which the jury were entitled to accept and appear to have accepted, only one conclusion is possible. What actually killed Sands was the negligence of the railway company, and not his own, though it was a close thing.

Some of the judges in the Courts below appear to have thought that because the equipment of the car with a defective brake was the original cause of the collision, and could not have been remedied after Sands got on the line, no account should be taken of it in considering the motorman’s failure to avoid the collision after he knew that Sands was in danger. “You cannot charge up the same negligence under different heads,” said Murphy, J., at the trial; “you cannot charge it up twice.” “On the question of ultimate negligence,” he observed, “that negligence must arise on the conditions as existing at the time of the accident. It would, of course, be absurd to say the company had any opportunity between the time that this rig appeared upon the track and the collision to remedy any defect in the brake. If there was such a defect I think it was original negligence and not what may possibly be termed ‘ultimate negligence.’”

In the Court of Appeal Macdonald, C. J. A., delivering a dissentient judgment in favor of the present appellants, said: “Where one party negligently approaches a point of danger, and the other party, with like obligation to take care, negligently approaches the same point of danger, if there arises a situation which could be saved by one and not by the other, and the former then negligently fail to use the means in his power to save it, and injury is caused to the latter, that failure is designated ultimate negligence, in the sense of being the proximate cause of the injury. In this case it is sought to carry forward, as it were, an anterior negligent omission of the defendants, though continuing, it is true, up to the time of the occurrence, and to assign to it the whole blame for the occurrence, although by no effort of the defendants or their servants could the situation at that stage have been saved.”

So, too, McPhillips, J. A., also dissenting, said: “Upon the evidence, whether it was because of defective brakes or any of the acts of negligence found against the defendants, none of them were acts of negligence arising after the act of contributory negligence of the deceased, and cannot be held to be acts of negligence which, notwithstanding the later negligence of the deceased, warrant judgment going for the plaintiff.... The motorman after he saw the vehicle could not have stopped the car ... therefore, as nothing could be then done by the motorman to remedy the ineffective brake, the want of care of the deceased was the direct and effective contributory cause of the accident resulting in his death.”

These considerations were again urged at their Lordships’ bar under somewhat different forms. It was said (1) that the negligence relied on as an answer to contributory negligence must be a new negligence, the initial negligence which founded the cause of action being spent and disposed of by the contributory negligence. Further, it was said (2) that if the defendants’ negligence continued up to the moment of the collision, so did the deceased’s contributory negligence, and that this series, so to speak, of replications and rebutters finally merged in the accident without the deceased ever having been freed from the legal consequence of his own negligence having contributed to it.

The last point fails because it does not correspond with the fact. The consequences of the deceased’s contributory negligence continued, it is true, but, after he had looked, there was no more negligence, for there was nothing to be done, and, as it is put in the classic judgment in Tuff _v._ Warman, (1858) 5 C. B. (N. S.) 573, 585, his contributory negligence will not disentitle him to recover “if the defendant might by the exercise of care on his part have avoided the consequences of the neglect or carelessness of the plaintiff.”

As to the former point, there seems to be some ambiguity in the statement. It may be convenient to use a phraseology which has been current for some time in the Canadian Courts, especially in Ontario, though it is not precise. The negligence which the plaintiff proves to launch his case is called “primary” or “original” negligence. The defendant may answer that by proving against the plaintiff “contributory negligence.” If the defendant fails to avoid the consequences of that contributory negligence and so brings about the injury, which he could and ought to have avoided, this is called “ultimate” or “resultant” negligence. The opinion has been several times expressed, in various forms, that “original” negligence and “ultimate” negligence are mutually exclusive, and that conduct which has once been relied on to prove the first cannot in any shape constitute proof of the second.

Here lies the ambiguity. If the “primary” negligent act is done and over, if it is separated from the injury by the intervention of the plaintiff’s own negligence, then no doubt it is not the “ultimate” negligence in the sense of directly causing the injury. If, however, the same conduct which constituted the primary negligence is repeated or continued, and is the reason why the defendant does not avoid the consequences of the plaintiff’s negligence at and after the time when the duty to do so arises, why should it not be also the “ultimate” negligence which makes the defendant liable?

This matter was much discussed in Brenner _v._ Toronto Ry. Co., 13 Ont. L. R. 423, when Anglin, J., delivered a very valuable judgment in the Divisional Court. The decision of the Divisional Court was reversed on appeal, 15 Ont. L. R. 195, (1908) 40 Can. S. C. R. 540, but on other grounds, and in their comments on the decision of the Divisional Court, Duff, J., in the Supreme Court, and also Chancellor Boyd in Rice _v._ Toronto Ry. Co., (1910) 22 Ont. L. R. 446, 450, and Hunter, C. J., in Snow _v._ Crow’s Nest Pass Coal Co., (1907) 13 B. C. Rep. 145, 155, seem to have missed the point to which Anglin, J., had specially addressed himself.

The facts of that case were closely similar to those in the present appeal, and it was much relied on in argument in the court below. Anglin, J., following the decision in Scott _v._ Dublin and Wicklow Ry. Co., (1861) 11 Ir. C. L. Rep. 377, 394, observed as follows, 13 Ont. L. R. 437, 439, 440: “Again, the duty of the defendants to the plaintiff, breach of which would constitute ‘ultimate’ negligence, only arose when her danger was or should have been apparent. Prior to that moment there was an abstract obligation incumbent upon them to have their car equipped with efficient emergency appliances ready and in condition to meet the requirements of such an occasion. Had an occasion for the use of emergency appliances not arisen, failure to fulfil that obligation would have given rise to no cause of action. Upon the emergency arising, that abstract obligation became a concrete duty owing to the plaintiff to avoid the consequences of her negligence by the exercise of ordinary care.... Up to that moment there was no such breach of duty to the plaintiff. In that sense the failure of the defendants to avoid the mischief, though the result of an antecedent want of care, was negligence which occurred, in the sense of becoming operative, immediately after the duty, in the breach of which it consisted, arose. It effectively intervened between the negligence of the plaintiff and the happening of the casualty. But there is a class of cases where a situation of imminent peril has been created, either by the joint negligence of both plaintiff and defendant, or it may be, by that of the plaintiff alone, in which, after the danger is or should be apparent, there is a period of time, of some perceptible duration, during which both or either may endeavor to avert the impending catastrophe.... If, notwithstanding the difficulties of the situation, efforts to avoid injury duly made would have been successful, but for some self-created incapacity which rendered such efforts inefficacious, the negligence that produced such a state of disability is not merely part of the inducing causes—a remote cause or a cause merely _sine qua non_—it is, in very truth, the efficient, the proximate, the decisive cause of the incapacity, and therefore of the mischief.... Negligence of a defendant incapacitating him from taking due care to avoid the consequences of the plaintiff’s negligence, may, in some cases, though anterior in point of time to the plaintiff’s negligence, constitute ‘ultimate’ negligence, rendering the defendant liable notwithstanding a finding of contributory negligence of the plaintiff....”

Their Lordships are of opinion that, on the facts of the present case, the above observations apply and are correct. Were it otherwise the defendant company would be in a better position, when they had supplied a bad brake but a good motorman, than when the motorman was careless but the brake efficient. If the superintendent engineer sent out the car in the morning with a defective brake, which, on seeing Sands, the motorman strove to apply, they would not be liable, but if the motorman failed to apply the brake, which, if applied, would have averted the accident, they would be liable.

The whole law of negligence in accident cases is now very well settled, and, beyond the difficulty of explaining it to a jury in terms of the decided cases, its application is plain enough. Many persons are apt to think that, in a case of contributory negligence like the present, the injured man deserved to be hurt, but the question is not one of desert or the lack of it, but of the cause legally responsible for the injury. However, when once the steps are followed the jury can see what they have to do, for the good sense of the rules is apparent. The inquiry is a judicial inquiry. It does not always follow the historical method and begin at the beginning. Very often it is more convenient to begin at the end, that is at the accident, and work back along the line of events which led up to it. The object of the inquiry is to fix upon some wrong-doer the responsibility for the wrongful act which has caused the damage. It is in search not merely of a causal agency but of the responsible agent. When that has been done, it is not necessary to pursue the matter into its origins; for judicial purposes they are remote. Till that has been done there may be a considerable sequence of physical events, and even of acts of responsible human beings, between the damage done and the conduct which is tortious and is its cause. It is surprising how many epithets eminent judges have applied to the cause, which has to be ascertained for this judicial purpose of determining liability, and how many more to other acts and incidents, which for this purpose are not the cause at all. “Efficient or effective cause,” “real cause,” “proximate cause,” “direct cause,” “decisive cause,” “immediate cause,” “causa causans,” on the one hand, as against, on the other, “causa sine qua non,” “occasional cause,” “remote cause,” “contributory cause,” “inducing cause,” “condition,” and so on. No doubt in the particular cases in which they occur they were thought to be useful or they would not have been used, but the repetition of terms without examination in other cases has often led to confusion, and it might be better, after pointing out that the inquiry is an investigation into responsibility, to be content with speaking of the cause of the injury simply and without qualification.

In the present case their Lordships are clearly of opinion that, under proper direction, it was for the jury to find the facts and to determine the responsibility, and that upon the answers which they returned, reasonably construed, the responsibility for the accident was upon the appellants solely, because, whether Sands got in the way of the car with or without negligence on his part, the appellants could and ought to have avoided the consequences of that negligence, and failed to do so, not by any combination of negligence on the part of Sands with their own, but solely by the negligence of their servants in sending out the car with a brake whose inefficiency operated to cause the collision at the last moment, and in running the car at an excessive speed, which required a perfectly efficient brake to arrest it. Their Lordships will accordingly humbly advise His Majesty that the appeal should be dismissed with costs.[209]

NEHRING _v._ THE CONNECTICUT COMPANY SUPREME COURT, CONNECTICUT, JULY 19, 1912. _Reported in 86 Connecticut Reports, 109._

PRENTICE, J. It is clear and unquestioned that there was evidence, justifying its submission to the jury, tending to establish the defendant’s negligence in the premises directly contributing to produce the fatal injury which the plaintiff’s intestate suffered. The verdict for the defendant was directed upon the ground that the plaintiff had failed to present evidence, sufficient to go to the jury, tending to establish the intestate’s freedom from contributory negligence. Plaintiff’s counsel in his brief formally takes issue with this conclusion of the court, asserting that the evidence was such as entitled the plaintiff to go to the jury upon the question of the intestate’s negligence. It is apparent, however, that little reliance is placed upon this particular claim, and that the contention that the court erred must fail unless the appeal which is made to the so-called doctrine of “the last clear chance,” otherwise known as supervening or intervening negligence, is well made. This appeal is urged with vigor, so that the plaintiff’s main contention, which alone calls for serious consideration, is that, notwithstanding the intestate’s failure to use ordinary care, the defendant is liable through the operation of the doctrine referred to, which, it is said, the court disregarded.

* * * * *

The notion appears to be more or less prevalent that this so-called doctrine is a discovery of recent years, that it embodies a new legal principle, and that this principle is one which invades the domain formerly assigned to contributory negligence, and sets limitations upon the operation of this latter doctrine so long and so deeply imbedded in English and American jurisprudence. This is by no means true as respects either the age or the character and scope of the principle which it embodies. The names by which it has come to be known are indeed of recent origin, and perhaps its present vogue and the misconception which prevails as to its true place in the law of negligence are due in part to its thus being given an independent status in the terminology of the law. In fact, the principle is no modern discovery. It runs back to the famous “Donkey Case” of Davies _v._ Mann, 10 Mees. & W. 546, decided in 1842. It was distinctly recognized by this court in 1858 in Isbell _v._ New York & N. H. R. Co., 27 Conn. 393. It was then not only recognized, but its true place in the law was assigned to it. It was shown to be no independent principle operating by the side of, and possibly overstepping the bounds of, other principles, but merely a logical and inevitable corollary of the long accepted doctrine of actionable negligence as affected by contributory negligence. The definition of its place, which was made in the clear-cut language of Judge Ellsworth, inexorably forbade that it could by possibility run counter in its application to the contributory negligence rule. This fundamental principle we have steadily adhered to. Smith _v._ Connecticut Ry. & Ltg. Co., 80 Conn. 268, 270, 67 Atl. 888; Elliott _v._ New York, N. H. & H. R. Co., 83 Conn. 320, 322, 76 Atl. 298, 84 Conn. 444, 447, 80 Atl. 283.

There are, indeed, cases which give countenance to a different view upon this latter subject. But their dicta, oftentimes, not to say generally, uttered without an apparent comprehension of their logical consequence, would create havoc with the law, and leave it guideless, or with two conflicting guides. A sober second thought is, however, fast correcting this mistake, so that there has already come to be a general concurrence of the well-considered authorities in the view which has been taken in this jurisdiction.

The contributory negligence rule has no practical application save in cases where the defendant has been guilty of actionable negligence. It proceeds upon the theory that whenever a person injured has contributed essentially to his injury by his own negligent conduct, the law will not give him redress, even against another who may have been directly instrumental in producing the result. To furnish a basis for its application there must have been a concurrence of negligent conduct. This negligent conduct, furthermore, must have been of such a character and so related to the result as to entitle it to be considered an efficient or proximate cause of it. If there is a failure to use due care on the part of either party at such a time, in such a way or in such a relation to the result that it cannot fairly be regarded as an efficient or proximate cause, the law will take no note of it. _Causa proxima, non remota, spectatur._

It thus logically follows that, although a plaintiff may have failed to exercise reasonable care in creating a condition, or in some other way, which cannot be fairly said to have been the proximate cause of the injuries of which he complains, the contributory negligence rule cannot be invoked against him. The question with respect to negligent conduct on the part of a person injured through the negligence of another, as affecting the former’s right to recover, thus becomes resolved in every case into one as to whether or not that conduct of his was a proximate cause of the injury. If it was, then the contributory negligence rule is applicable, and the plaintiff will by its operation be barred from recovery. If it was not, that rule has no pertinence to the situation, since there was no concurrence of negligence, without which there can be no contributory negligence in the legal sense. It is conduct of the latter kind—that is, conduct careless in itself, but not connected with the injury as a proximate cause of it—to which the so-called doctrine of “the last clear chance” relates, and that doctrine embraces within its purview such conduct only.

This being so, it may well be questioned whether the doctrine deserves a classification and a name as of an independent principle. But if, for convenience sake or other reason, it is to be dignified in that way, it is apparent that there is no manner of inconsistency between it and the contributory-negligence rule, and that the domain of the latter rule is in no way invaded or narrowed by a full recognition of it. It follows that the decisive question in each case, where a plaintiff injured is found to have been at fault in the premises from his failure to exercise the required degree of care, resolves itself into one as to whether that fault was or was not a proximate cause of the injury, and that the answer to that question will infallibly determine whether or not it will bar a recovery.

* * * * *

Thus far we have had the way marked out for us by the clearly defined doctrine of former opinions. But the proposition just stated, which is thus supported, while sufficient for the determination of many cases and furnishing a helpful guide in most others, does not resolve all the difficulties which may be encountered. It leaves the question open as to when negligent conduct in a person injured in his person or property is to be regarded as a proximate cause of the injury. How close must be the causal connection between the negligence and the injury? It is at this point that any real uncertainty or trouble arises under the doctrine of this jurisdiction.

* * * * *

The negligence referred to in the claimed rule is, of course, that which the law so denominates, to wit, want of due care which is a proximate cause of harm. The proposition is not dealing with a lack of due care which the law ignores. When it speaks of the negligence ceasing, negligence in the legal sense is meant. It may in a given sense cease in the sense that prudent conduct takes its place. It may for all legal purposes cease through the relegation of it, as events progress, to the domain of remote cause. In other words, it ceases when, and only when, the conditions of contributory negligence disappear. The claimed test thus solves no problems. It only brings one back, in doubtful cases, to the inquiry whether the plaintiff’s conduct, lacking in due care, was of such a character, or so related to the injury, that it ought to be regarded as a proximate cause of it, as the real test which must be applied.

The impossibility of framing any general abstract statement which will suffice to resolve the difficulties which may be presented under varying conditions, or to anticipate all such conditions, is apparent. We shall undertake no such task. There are, however, certain sets of conditions, of not infrequent occurrence, concerning which general conclusions may be made safely and profitably.

There is, for instance, the occasional case where, after the plaintiff’s peril, to which he has carelessly exposed himself or his property, becomes known to the defendant, the latter introduces into the situation a new and independent act of negligence without which there would have been no injury. Such was the case of Smith _v._ Connecticut Ry. & Ltg. Co., 80 Conn. 268, 270, 67 Atl. 888, and it was there held, in accordance with sound reason, that this new negligence was to be regarded as the sole proximate cause of the accident which ensued. The rule for that type of case is thus furnished.

Cases of another class occasionally arise, where it is disclosed that the plaintiff has by his lack of care placed himself in a position of danger from which he either cannot, or cannot reasonably, escape after the discovery of his danger. Here, again, there can be no hesitation in saying, that if the defendant, after his discovery that the plaintiff is in the situation described, fails to use reasonable care—and that is care proportioned to the danger—to save him from harm, and harm results from such failure, the defendant’s want of care will be regarded as the sole proximate cause, and the plaintiff’s a remote cause only.

The situation just stated is not infrequently changed, in that means of escape were open to the plaintiff by the exercise of reasonable care, but it was apparent to the defendant, in season to have avoided the doing of harm by the exercise of due care, that the plaintiff would not avail himself of them. Here it is assumed that the situation of exposure had been created and established by the plaintiff’s action before the period of time began within which the defendant, acting reasonably, might have saved him, and that within that period the plaintiff did nothing to create or materially change that situation by active conduct which was not marked by reasonable care. Under the assumption he remains passive, in so far at least as negligent action is concerned, and can be regarded as careless only in this that he did not awake to his surroundings and do what he reasonably could to avoid the threatened consequences of a situation which he had already negligently brought about. In such cases the humane, and, to our mind, the better reason, all things considered, leads to the conclusion to which our former opinions, already cited, commit us, and which a large number of cases elsewhere approve, that the want of care on the part of the plaintiff will be regarded as a remote and not a proximate cause.

Another important variation is oftentimes introduced into the situation, in that the plaintiff continued as an active agent in producing the conditions under which his injury was received down to the time of its occurrence, or at least until it was too late for the defendant, with knowledge of his peril, to have saved him by the exercise of reasonable care under the circumstances. This variation imports into the situation an important factor. The plaintiff, during the period named, is not merely passively permitting an already fixed condition to remain unchanged. He is an actor upon the scene. He is, by acts of his volition, bringing into the situation which confronts the defendant changed conditions and, in the fullest sense, co-operating with the latter in bringing about the ultimate result. In such case his conduct must be regarded as a concurring efficient cause. It is, in the fullest sense, a proximate and not a remote one, making his negligence contributory.

It is said, however, that there are cases, and undoubtedly there are, where it is reasonably apparent to the one who inflicts the injury that the injured one is careless of his safety, and that, in continuance of his carelessness, he is about to place himself in a position of danger, which he subsequently does, and where the former thereafter, having a reasonable opportunity to save him from harm, fails to do so; and it is contended that in such cases the conduct of the injured person should be regarded as a remote cause only of the resulting harm. We are unable to discover any logical reason for such a conclusion, or any place at which a practical or certain line of division can be drawn between that careless conduct of a man, playing some part in an injury to him, which the law will regard as having that causal connection with the injury which makes it a proximate cause, and that careless conduct which will not be so regarded, if the contention under consideration is to be approved. The conduct of the man who inflicts the injury under such general conditions may indeed be such that it is open to the charge of wilfulness or wantonness. If so, the case is not one of negligence, and the defense of contributory negligence would not be available. Rowen _v._ New York, N. Y. & H. R. Co., 59 Conn. 364, 371, 21 Atl. 1073. If the conduct is not wilful or wanton, it is negligent only. Thus treated, it forms one factor of negligence in the situation. The plaintiff’s want of care is another factor, and it certainly has something substantial to do in bringing about the result reached. Upon what theory or foundation in reason it can be said that, under the circumstances assumed, it is not an efficient cause of that result co-operating concurrently with the other cause to be found in the other party’s negligence, we are unable to discover. The causal connection is plain to be seen, and the act of causation is that of a positive act of volition. The two actors upon the scene owe precisely the same duty to be reasonably careful. Dexter _v._ McCready, 54 Conn. 171, 174, 5 Atl. 855. Neither occupies in that regard a superior position, and the one who suffers can claim no precedence over his fellow actor or at the hands of the law. To say that no matter if one be negligent in going forward into danger, or in creating new conditions or complicating them, the law will protect him and cast upon the other party the responsibility for the result, is to ignore the fundamental principle of contributory negligence and bring the law upon that subject into hopeless confusion, and merit for it the condemnation which Thompson has so forcibly expressed. 1 Thompson on Negligence, §§ 230, 233. The well-considered cases which have directly dealt with this subject agree with us, we think, in our view that active continuing negligence of the kind assumed is to be regarded as contributory in the legal sense. Butler _v._ Rockland, T. & C. Street Ry. Co., 99 Me. 149, 160, 58 Atl. 775; Murphy _v._ Deane, 101 Mass. 455, 465; Dyerson _v._ Union Pacific R. Co., 74 Kan. 528, 87 Pac. 680; Little _v._ Superior Rapid Transit Ry. Co., 88 Wis. 402, 409, 60 N. W. 705; Green _v._ Los Angeles Terminal Ry. Co., 143 Cal. 31, 47, 76 Pac. 719; Olson _v._ Northern Pacific Ry. Co., 84 Minn. 258, 87 N. W. 843.

We have thus far dealt with cases in which actual knowledge on the part of the defendant of the plaintiff’s peril enters into the assumption of facts. Suppose, however, that such knowledge is not established, but facts are shown from which it is claimed that the defendant ought in the exercise of due care to have known of it. What shall be said of such a situation?

In so far as imputed or constructive knowledge may be embraced in the assumption, the simple answer is to be found in the legal principle that full and adequate means of knowledge, present to a person when he acts, are, under ordinary circumstances, treated as the equivalent of knowledge. Post _v._ Clark, 35 Conn. 339, 342.

But our assumption reaches outside of the domain of knowledge, either actual or constructive. It suggests, in the use of the phrase “ought in the exercise of due care to have known,” frequently met with in the books, the existence of a duty to exercise due care to acquire knowledge, and the query is, whether the law recognizes the existence of such a duty to the extent of making it a foundation for responsibility for conduct akin to that which flows from conduct with actual or constructive knowledge.

We have frequently held that the character of one’s conduct in respect to care is to be determined in view of what he should have known as well as of what he did in fact know. Snow _v._ Coe Brass Mfg. Co., 80 Conn. 63, 66 Atl. 881. In these cases the question has been as to one’s duty for his own self-protection. That duty, according to established principles, involves the making of reasonable use of one’s senses under the penalty of forfeiture of all claim for redress in the event that harm results. Popke _v._ New York, N. H. & H. R. Co., 81 Conn. 724, 71 Atl. 1098.

But how about a duty of acquiring knowledge, owed to others for their safety, which, not being performed, will furnish a basis of liability? In Elliott _v._ New York, N. H. & H. R. Co., 83 Conn. 320, 76 Atl. 298, we recognized that such a duty might exist. That case involved the conduct of a locomotive engineer operating his engine at a grade-crossing, and we approved a charge which gave to the knowledge which the engineer, under the conditions, ought, in the use of due care, to have had, the same effect as actual knowledge. The duty imposed upon him was one to be watchful in order that needless harm might not come to persons who might be using the crossing, from the dangerous instrument of his calling. The duty was one toward others, which the circumstances and conditions must be regarded as fairly creating. For a like reason a similar duty rests upon other persons and under other conditions, in greater or lesser measure. Whether it exists, and the extent of it, depends upon the circumstances of each situation. A circumstance of chief significance, perhaps, is one which concerns the character of that about which the person is engaged in respect to its being calculated, under the conditions, to work injury to others. And so it is that a locomotive engineer, a motorman of a trolley-car running in a highway, or a chauffeur driving an automobile, is under a duty to be watchful for the protection of others which another man under other conditions would not owe to his fellows. Unreasonableness in one’s conduct, as a foundation for responsibility to others, cannot justly be established upon the basis of knowledge not possessed. It can with propriety be predicated upon negligence in not having acquired more knowledge. Negligence in this respect, as in all others, implies the existence of a duty to make use of means of knowledge. This duty must be found in the circumstances, and caution must be exercised in order that it, with its consequences, be not raised where the circumstances do not fairly impose it, or be extended beyond the limits which the circumstances fairly justify.[210]

GEORGE W. WHEELER, J. (dissenting). Just prior to the accident the defendant’s car was being negligently operated. Assuming the decedent walked either diagonally toward and upon the track, or close to it, without using his senses to learn of the approaching car, and that there was no excuse for his failure, he was negligent. If the accident occurred while decedent and defendant were negligent and decedent’s negligence was a proximate cause of the accident, and there was nothing more to the case, there could be no recovery. But if the defendant’s motorman saw, or could by the exercise of reasonable care have seen, the decedent either approaching the track and about to place himself in danger, or walking so near the track as to be in danger, apparently heedless and unconscious of his peril, he owed to the deceased the duty of warning him and of observing such precautions as might avoid running into him. This was the case before the jury. We hold knowledge and the means of knowledge of one having a duty to know equivalent. Elliott _v._ New York, N. H. & H. R. Co., 83 Conn. 320, 76 Atl. 298. This duty originated after the negligence of the motorman and of the deceased, and after the latter’s peril and his unconsciousness of it might have been discovered by the motorman. If its performance would have avoided the injury to the deceased, its breach was the proximate cause of the accident, and his negligence in placing himself in the place of peril a condition, or the remote cause, of it. Of course, if he had not gone upon the track he would not have been injured; if he was negligent in going upon the track without using his senses, that was not the proximate cause of the accident, but the failure of the defendant to avoid the accident after it had the opportunity of avoidance and after it knew of the decedent’s peril and his unconsciousness of it.

In each case of discovered peril caused by one’s negligence the question is, did the defendant have the opportunity after such discovery, and was it his duty, to have avoided the accident? Whether the conduct of the motorman was gross negligence, or ordinary negligence, the breach of duty was the same in kind, though differing in degree. If one walks upon a railway track drunk, or in a reverie, or otherwise careless; or if one stands or lies on or so near the railway track as to be in danger and unconscious of it; or if one is in a position of peril through his own negligence from which he is unable to extricate himself, the person knowing or having the means and the duty to know of his presence owes him the duty of avoiding injuring him. One who is negligently in a position of danger and unconscious of it is in no different situation than if he were incapable of extricating himself from his peril.

The few authorities which hold the antecedent negligence of the deceased in getting into peril is concurrent with the defendant’s negligence so as to bar a recovery, make meaningless the rule of duty compelling the defendant to use reasonable care to avoid the accident after discovery of the peril. A legal duty without a corresponding obligation is an anomaly. When we relieve the motorman of liability for failure to avoid an accident, he may operate his car at a negligent speed, without having it under control, without keeping an outlook, without giving warning of approach, and neither having nor using the ordinary instrumentalities of equipment for avoiding injury to travellers, and so long as his conduct is not gross negligence it carries with it no liability.

The opinion of the court classifies in five groups the several kinds of cases which have been thought to be within the “last clear chance” doctrine. In group one, the defendant, instead of doing his duty, does something which is a new act of negligence. In group two, the peril is one from which the plaintiff cannot, or cannot reasonably, extricate himself. Each group supports a recovery. In group three, means of escape were open to the plaintiff down to the accident, but he remained unconscious of his peril. The opinion holds that if the plaintiff remains passive after exposing himself to peril and does nothing to materially change that condition, there may be a recovery. But in group four, assuming the same facts as in group three, the court holds that if the plaintiff after exposing himself to peril, instead of permitting the fixed condition to remain unchanged continues as an active agent in producing the conditions under which the injury was received down to its occurrence, or until it was too late for the defendant to avoid the accident, there can be no recovery. In group five, the defendant knows, or ought to know, that the injured one is careless and is about to expose himself to danger of which he is unconscious, and after such knowledge has the opportunity to avoid injury to him, and in such case the court holds there can be no recovery.

We have attempted to show that the breach of duty of the defendant in each of these several groups is the same, and was a new act of negligence of the defendant, viz.: the failure of the defendant to avoid injuring the plaintiff after he knew of his peril when he was either unconscious of it or incapable of extricating himself from it, and that this breach was the proximate cause of the accident while the plaintiff’s prior negligence was the remote cause.

The distinction between active and passive negligence made in groups three and four, is new to our law, as well as to the law of negligence generally prevailing in this country and in England. On analysis it does not seem logical. A is crossing a trolley track when hailed by a friend; he stops upon the track to talk and negligently fails to use his senses to discover an approaching car. The motorman could have seen A in his place of peril, unconscious of his danger, and in time, with the exercise of reasonable care to have avoided injuring him; instead he drives on his car and kills A. The opinion would hold A negligent in being upon the track without using his senses to keep out of the way of the oncoming car, but that as he remained passive and did nothing to change his situation of peril after the motorman had the opportunity to have avoided the accident, he may recover. But if A, instead of stopping on the track had gone on his way across or upon the track and been struck, his negligence would have been active and continued to the accident and would have been concurrent with that of the motorman. It must be conceded that the breach of the motorman’s duty would have been the same in each case: a failure to use reasonable care to avoid the accident. We see no reason why it should be available in the one case and not in the other. In neither case has the plaintiff’s negligence changed. It never became passive or nonexistent. It remained to the time of the accident. It ceased, in a legal sense, to be a proximate cause of the accident. A was relieved of its consequences because the negligence of the motorman in failing to avoid the accident intervened and became its proximate cause. If this distinction holds, and A be upon a trolley track intoxicated and asleep, his negligence is passive; if awake and walking his negligence is active.[211]

GAHAGAN _v._ BOSTON & MAINE RAILROAD SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1900. _Reported in 70 New Hampshire Reports, 441._

Plaintiff was struck by a train while attempting to use a crossing provided by the Railroad Company for persons having business with a manufacturing company. From a point twenty-two feet from the nearest rails there was an unobstructed view of the track in the direction from which the train came. The accident happened near noon on a bright and clear day. Generally the engine bell was rung, while the whistle was sometimes sounded, for this crossing. Plaintiff knew it was usual to ring the bell. In this instance a danger whistle was sounded at, or immediately before, the time when plaintiff was struck; but there was evidence tending to prove that no other warning of the approach of the train was given. Plaintiff testified that he did not look or listen for an approaching train; and that he did not look because he expected to hear the bell or whistle if one was coming. The engineer testified that, when about one hundred and fifty to two hundred feet from the crossing, he saw plaintiff approaching the track; and that he kept watch of plaintiff until he got within a few feet of the track, when he whistled.[212]

A nonsuit was ordered, subject to exception.

PARSONS, J.... It is urged that the plaintiff relied upon the ringing of the bell, and that the failure to give the warning signals (of which there was some evidence which must here be taken to be true) excused him from the exercise of vigilance. Though the plaintiff testified that he did not look to see if a train was approaching because he expected to hear the whistle or bell if there was, it cannot be claimed that he was consciously at the time placing any reliance thereon, for he further testifies that he had no thought of a train coming and did not listen for the bell. As his counsel state in their brief, “There was no positive effort, no conscious ‘harking’ or ‘listening’ to ascertain if the train was coming.” But assuming that it might be found as a fact that he did rely on the awakening of his consciousness by the performance of the railroad’s duty of warning, the failure of the defendants to perform their duty did not release him from his. The obligation to use care was equally imposed upon each. If the defendants’ negligence excused the plaintiff from his duty of care, the plaintiff’s negligence with equal reason would excuse the defendants. If the plaintiff had the right to assume the defendants would perform their duty, and, relying thereon, approach the crossing without exercising care, the defendants had the right to assume that the plaintiff would perform his duty, and omit the warning of bell and whistle. The duty of care rested on each equally. If neither performed that duty both are in fault, and neither can recover of the other. The collision in this case resulted, it may be, because neither party performed their duty. If either had, there might and probably would have been no accident. The rights and liabilities of the parties consequent upon their acts resulting in the collision are not affected by the fact that subsequently one is plaintiff and the other defendant in a suit growing out of the collision. Their several responsibility is fixed at the time by their acts or failure to act. A suit by the engineer against Gahagan for personal injury resulting from the collision would present precisely the same legal question as that we now have. It would hardly be urged that the engineer was not guilty of contributory negligence in failing to ring the bell because he relied upon Gahagan’s performance of his duty of stopping and allowing the train to go by. The negligence of neither is an excuse for concurrent want of care in the other, because for an injury resulting from the concurrent negligence of both neither can recover. Nashua Iron and Steel Co. _v._ Railroad, 62 N. H. 159, 163.

The rule is laid down in Railroad Co. _v._ Houston, 95 U. S. 697, 702, also a crossing case, as follows: “The failure of the engineer to sound the whistle or ring the bell, if such were the fact, did not relieve the deceased from the necessity of taking ordinary precautions for her safety. Negligence of the company’s employees in these particulars was no excuse for negligence on her part.”

* * * * *

It is not claimed that after the plaintiff stepped upon the track almost immediately in front of the approaching train the defendants could have prevented the injury, or that the employees in charge of the train, when the danger thus became imminent, did not do all that could be done to prevent the collision. At any time before this the plaintiff could have avoided the collision. There was no moment when the defendants could, while the plaintiff could not, have prevented the injury. The plaintiff’s act in stepping upon the track, without precaution to ascertain whether he could safely do so, was the last act in point of time in the causation producing the injury. As there was no evidence upon which it could reasonably be found that the plaintiff’s action in this respect was the exercise of care, he cannot recover unless upon the evidence some negligent act or omission of the defendants’ employees could be found to be the sole proximate cause of the injury.

* * * * *

The plaintiff’s negligent occupation of the track did not authorize the defendants to run upon and injure him, if by care they could have avoided it. Ordinarily, the negligent act or omission which fails to avoid the consequences of the plaintiff’s negligence is the last act in time in the series leading to the injury. Such was the case in the cases cited; the negligent occupation of the track by the plaintiffs preceded the negligence of the defendants in failing to observe and guard against the danger so produced. But as ordinary care may require vigilance to guard against a dangerous situation reasonably to be apprehended, as well as actually imminent, it cannot always follow that the last negligent act in point of time is necessarily the proximate cause of the injury. If the engineer knew or ought to have known that the plaintiff’s negligence would place him upon the crossing when the train reached it, the engineer was equally bound to avoid the collision as if he saw the plaintiff actually on the track. The question is one of evidence merely. The mere fact that the person when first seen is on the track is not decisive. If a person on foot is seen crossing the track at such distance ahead that it could not reasonably be apprehended that the train would reach him in this position, the engineer would not be in fault for not preparing to avoid a danger not reasonably to be expected. In the present case there is evidence that when the plaintiff was first seen by the engineer the collision could have been prevented. If the engineer knew or ought to have known then that the plaintiff would be upon the crossing when the train reached it, and could have avoided the collision, his failure to do so is the proximate cause of the injury.

As there was evidence the collision might then have been prevented by him, the sole remaining question is whether upon the evidence reasonable men might find the engineer ought then to have foreseen the plaintiff’s negligence. The bare fact that the plaintiff was seen approaching the track is not sufficient to authorize such a finding. If it were, the rule heretofore laid down and found to be approved by the authorities and the reason of the case, that it is the duty of the highway traveller to stop and allow the train to pass, would be reversed. It would become the duty of the train to stop and wait for the person on foot to go by. This would be unreasonable, impracticable, and put an end to the modern system of rapid transportation demanded by the public, and to effectuate which railroads are authorized by the state.

“The company’s servants may ordinarily presume that a person apparently of full age and capacity, who is walking on the track at some distance before the engine, will leave it in time to save himself from harm; or if approaching the track, that he will stop if it becomes dangerous for him to cross it. This presumption will not be justified under some circumstances, as when the person who is on the track appears to be intoxicated, asleep, or otherwise off his guard.” Pierce R. R. 331; 2 Shearm. & Red. Neg. _s._ 483; Chicago, etc. R. R. _v._ Lee, 68 Ill. 576, 581; Terre Haute, etc. R. R. _v._ Graham, 46 Ind. 239, 245; Lake Shore, etc. R. R. _v._ Miller, 25 Mich. 274, 278, 280; Boyd _v._ Railway, 105 Mo. 371, 381, 382. The presumption is founded upon the general principle of right acting and the instinct of self-preservation. Huntress _v._ Railroad, 66 N. H. 185; Lyman _v._ Railroad, 66 N. H. 200; 2 Thomp. Neg. 1601.

The case discloses no evidence apparent to the engineer taking the present case out of the rule.

* * * * *

Aside from the plaintiff’s own statement and the fact of the subsequent collision, the case contains no evidence that the plaintiff, when seen by the engineer approaching the crossing, was not alert to the situation, or tending to produce a belief that he would voluntarily rush into danger without care. Until he stepped upon the track his only danger consisted in the fact of his mental obliviousness to his duty of taking care. So defining his danger, the claim of his counsel, that if the engineer knew the plaintiff’s danger he could have avoided the injury and is in fault for not doing so, is sound; but to submit to the jury the question of fact whether the engineer ought to have known the _status_ of the plaintiff’s mind in season to have prevented the accident, not only in the absence of evidentiary facts tending to prove such knowledge but in the face of all the facts open only to a contrary inference, would be a violation of the familiar and elementary rule that in judicial trials facts are to be found upon evidence, not conjecture. Deschenes _v._ Railroad, 69 N. H. 285.

The evidence upon which counsel mainly rely, tending to show that when seen by the engineer Gahagan’s face was not turned toward the train and that his appearance did not indicate whether he saw the train or not, does not tend to establish that he proposed to rush carelessly into known danger, or that he would go upon the track without care to ascertain if a train was approaching. That Gahagan knew the crossing, its danger, and his approach to it, was conceded. Hence, in the face of this admitted fact, although this evidence may have some tendency to prove the contrary, the jury could not find that Gahagan did not know he was approaching a place of danger, or that the engineer ought to have inferred a fact which it is conceded did not exist. As there is no evidence that the defendants ought to have known the plaintiff’s danger in season to have avoided the results of his negligence, they cannot be found guilty of negligence for not doing so.

* * * * *

_Exceptions overruled._

KEITH, P., IN NORFOLK & W. R. CO. _v._ DEAN’S ADM’X (1907) _107 Virginia, 505, 506, 507, 513._

KEITH, P. The Circuit Court ... rests the case solely upon the second count in the declaration, in which the case presented is that, after it became apparent to the crew in charge of defendant company’s train that intestate of plaintiff was on the track in front of the engine, that he was unconscious of his danger, and would take no measures to protect himself, the crew failed to use any measure to prevent the accident. Such being the issue to be determined, it is needless to consider so much of the evidence as relates to the use of the track as a public passway, or as to whether or not the person injured was a licensee or a trespasser. He was a human being, and when his dangerous position was seen and known, and that he himself was unconscious of his peril, and would take no measures for his own protection, it became the duty of the railroad company to do all that could be done consistent with its higher duties to others to save him from the consequences of his own act, regardless of whether he was guilty of contributory negligence or not. Seaboard & Roanoke R. Co. _v._ Joyner’s Adm’r, 92 Va. 355, 23 S. E. 773.

This being the narrow issue to be decided, it becomes necessary to consider the evidence bearing upon it with care....

[The learned judge then considered the testimony. He found that there was no failure of duty on the part of the train men; and he _held_ that the demurrer to the evidence should have been sustained. He quoted, with approval, the following statements of the law.]

In N. & W. Ry. Co. _v._ Harman, 83 Va. 577, 8 S. E. 258, it is said that “if a person seen upon the track is an adult, and apparently in the possession of his or her faculties, the company has a right to presume that he will exercise his senses and remove himself from his dangerous position; and if he fails to do so, and is injured, the fault is his own, and there is, in the absence of wilful negligence on its part, no remedy against the company for the results of an injury brought upon him by his own recklessness.”

* * * * *

In Rangeley _v._ Southern Ry. Co., 95 Va. 715, 30 S. E. 386, it is said that a railroad company has the right to assume that a grown person seen on its track will get out of the way of an approaching train, and the company is not liable unless it is shown that after the company, in the exercise of ordinary care, could have discovered that he was not going to get off the track, it could have avoided the injury.

O’KEEFE, ADM’X, _v._ CHICAGO, ROCK ISLAND & PACIFIC RAILROAD COMPANY SUPREME COURT, IOWA, OCTOBER 21, 1871. _Reported in 32 Iowa Reports, 467._

Appeal from Polk District Court.

## Action by an administratrix to recover damages for the death of her

husband, Dennis O’Keefe, alleged to have been killed by being run over on the defendant’s road, through the negligence of the defendant’s agents and employees. Defence in denial, and also that the death was caused by the drunkenness and negligence of the plaintiff’s intestate. There was a jury trial, resulting in a verdict and judgment for plaintiff for $1000. The defendant appeals.

COLE, J. [Omitting statement of evidence.] After the evidence was closed, the defendant asked the court to instruct the jury as follows: “If you are satisfied from the evidence that Dennis O’Keefe, plaintiff’s intestate, was, a short time before the alleged injury, in a state of intoxication; that in such condition he went upon defendant’s railroad and laid himself down upon the track, or fell down unable to support himself because of such intoxication; that remaining in that condition a passing train crushed one of his legs; that after the injury he was yet under the influence of intoxicating liquors drank before the injury; that the injured limb was amputated and death ensued, you will find for the defendant, unless you further find from a preponderance of the evidence that defendant or its agents had knowledge that he was thus lying in time to prevent the accident,” to which the court added, and then gave it, “_or, could have known with the exercise of ordinary caution_.” This modification was excepted to at the time, and is now assigned as error.

The well-established law of this state is, that in an action to recover damages for the negligent act of the defendant, the plaintiff will not be entitled to recover if his own negligence contributed directly to the injury. In other words, this court recognizes and applies the doctrine of “contributory negligence,” and not the doctrine of “comparative negligence.” The latter doctrine obtains only in Illinois and Georgia, while the former obtains in the other states, and also in the Federal courts. The modification complained of ignored the doctrine of contributory negligence, and substantially told the jury that plaintiff might recover without regard to his negligence, if the defendant could have prevented the injury with the exercise of ordinary caution. The doctrine of the modification goes even farther than that of comparative negligence; for, by the latter, a plaintiff can only recover when he shows the defendant’s negligence to have been greater, by comparison, than his, while by the modification the plaintiff might recover if the defendant did not exercise ordinary caution, although the plaintiff’s intestate may have been guilty of a much greater negligence in laying himself down, in a condition of intoxication, near to or upon the track. A similar modification was made to the second instruction. In each there was error.

_Reversed._

PICKETT _v._ WILMINGTON & WELDON RAILROAD COMPANY SUPREME COURT, NORTH CAROLINA, SEPTEMBER TERM, 1895. _Reported in 117 North Carolina Reports, 616._

AVERY, J.[213] The most important question presented by the appeal is whether the court erred in refusing to instruct the jury that if the plaintiff’s intestate deliberately laid down upon the track and either carelessly or intentionally fell asleep there, the defendant was not liable, unless the engineer actually saw that he was lying there in time, by the reasonable use of appliances at his command, to have stopped the train before it reached him.

* * * * *

In Gunter _v._ Wicker, 85 N. C. 310, this court gave its sanction to the principle first distinctly formulated in Davies _v._ Mann, 10 M. & W. (Ex.) 545, that “Notwithstanding the previous negligence of the plaintiff, if at the time the injury was done it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damages.” This doctrine was subsequently approved in Saulter _v._ Steamship Co., 88 N. C. 123; Turrentine _v._ Railroad, 92 N. C. 638; Meredith _v._ Iron Co., 99 N. C. 576; Roberts _v._ Railroad, 88 N. C. 560; Farmer _v._ Railroad, _Ibid._ 564; Bullock _v._ Railroad, 105 N. C. 180; Wilson _v._ Railroad, 90 N. C. 69; Snowden _v._ Railroad, 95 N. C. 93; Carlton _v._ Railroad, 104 N. C. 365; Randall _v._ Railroad, 104 N. C. 108; Bullock _v._ Railroad, 105 N. C. 180, and it was repeatedly declared in those cases that it was negligence on the part of the engineer of a railway company to fail to exercise reasonable care in keeping a lookout not only for stock and obstructions but for apparently helpless or infirm human beings on the track, and that the failure to do so supervening after the negligence of another, where persons or animals were exposed to danger, would be deemed the proximate cause of any resulting injury.

* * * * *

[As to argument for defendant.] But the reasons and the authorities relied upon emanate generally from courts which hold that both persons and animals upon a track are trespassers and entitled to consideration only where actually seen in time to save them....

It cannot be denied that, in a number of the states which have adopted the doctrine of Davies _v._ Mann, it has also been held that both man and beast were trespassers when they went upon a railway track and except at public crossings or in towns it was not the duty of the engineer to exercise care in looking to his front with a view to the protection of either. Where the law does not impose the duty of watchfulness it follows that the failure to watch is not an omission, of duty intervening between the negligence of the plaintiff in exposing himself and the accident, unless he be actually seen in time to avert it. The negligence of the corporation grows out of omission of a legal duty and there can be no omission where there is no duty prescribed.

* * * * *

We are of opinion that, when by the exercise of ordinary care an engineer can see that a human being is lying apparently helpless from any cause on the track in front of his engine in time to stop the train by the use of the appliances at his command and without peril to the safety of persons on the train, the company is liable for any injury resulting from his failure to perform his duty. If it is the settled law of North Carolina (as we have shown) that it is the duty of an engineer on a moving train to maintain a reasonably vigilant outlook along the track in his front, then the failure to do so is an omission of a legal duty. If by the performance of that duty an accident might have been averted, notwithstanding the previous negligence of another, then, under the doctrine of Davies _v._ Mann, and Gunter _v._ Wicker,[214] the breach of duty was the proximate cause of any injury growing out of such accident, and where it is a proximate cause the company is liable to respond in damages. Having adopted the principle that one whose duty it is to see does see, we must follow it to its logical results. The court committed no error of which the defendant could justly complain in stating the general rule which we have been discussing.

* * * * *

DYERSON _v._ UNION PACIFIC RAILROAD COMPANY SUPREME COURT, KANSAS, NOVEMBER 10, 1906. _Reported in 74 Kansas Reports, 528._

Plaintiff sued for damages caused by being struck by the tender of an engine.

Plaintiff, an employee of the R. R. Co., had occasion to cross the track. As he was about to step upon the track, he was struck by the tender of a locomotive which was backing east at the rate of fifteen or twenty miles an hour without giving a signal of its approach and without keeping a lookout along the track. The track was straight for a quarter of a mile west. It was a clear day, and there was nothing to have prevented the plaintiff from seeing the engine and tender if he had looked.[215]

At the trial, the court rendered judgment against plaintiff upon his petition and preliminary statement to the jury which disclosed the above facts. Plaintiff brought error.

MASON, J.

* * * * *

Finally it is contended in behalf of the plaintiff that, even admitting his own want of care to have been such as would ordinarily bar a recovery, still he had a right to submit to the jury the question whether the employees in charge of the engine by the use of reasonable diligence could have discovered his negligence in time to avert the accident, and that an affirmative answer would have entitled him to a verdict.

* * * * *

In a number of cases it has been held that if the engineer by the exercise of reasonable diligence could have learned that danger was imminent but did not do so, the liability of the company will be determined in all respects as though he had in fact become aware of it, the constructive knowledge being apparently deemed the equivalent of actual knowledge. It is difficult or impossible to reconcile the decisions upon this and related questions, or to derive from them any generally accepted statement either of principle or result. Many of them are collected and discussed in