^ 'If 5RA* H ^N/RS/^ Xfc"" '& - T C* V L 4? '& ^JPr """ ^S^- ^' ^ \J| ^ ^/Sd3^ v ^ * i *j^/ W9/ , % "* CAt,^ r> _~Jrt ?vo * ^A'"* .cy v =j 51. , ^\MERs/^ ^/ivo * ^j 3r^. x% H * Of elementary treatises on all the principal subjects of the law. The special features of these books are as follows : 1. $ eucctnct statement of fearing principfee in 6fac& fetter tgpe. 2. $ more ertenbeb commentary, efucibating t0e principfe&, 3. Qtotee anb authorities. Published in regular octavo form, and sold at the uniform price of $3.75 per fjofume, incfubing befwerg. 1. Norton on Bills and Notes. (3d Edition.) 2. Clark's Criminal Law. (2d Edition.) 3. Shtpman's Common-Law Pleading. (2d Edition.) 4. Clark on Contracts. 5. Black's Constitutional Law. (2d Edition.) 6. Fetter on Equity. 7. Clark on Criminal Procedure. 8. Tiffany on Sales. 9. Glenn's International Law. 10. Jaggard on Torts. (2vols.) n. Black on Interpretation of Lawt. 12. Hale on Bailments and Carriers. 13. Smith's Elementary Lave. 14. Hale on Damages. 15. Hopkins on Real Property. 1 6. Hale on Torts. 17. Tiffany on Persons and Domestic Relations. 1 8. Cr os-well on Executors and Administrators,. 19. Clark on Corporations. 20. George on Partnership. 21. Shipman on Equity Pleading. 22. McKelvey on Evidence. 23. Barrows on Negligence. 24. Hughes on Admiralty. 25. Eaton on Equity. 26. Tiffany on Principal and Agent. In preparation: Handbooks of the law on other subjects to be announced later. $u6fie0eb anb for eafe fig West (puBftfifrns Co., gfi. $duf, linn. F2446 KF H^ANDBOOK 63? I / ON THE LAW OF NEGLIGENCE By MORTON BARROWS, A. B., LL. B. OF THE ST. PAUL BAR ST. PAUL, MINN. WEST PUBLISHING CO. 1900 COPYRIGHT, 1899, BY WEST PUBLISHING CO. PREFACE. Perhaps no single subdivision of general law has, in the last dec- ade, so largely engrossed the attention of our courts, both state and federal, as that of Negligence. The most common form in which litigation of this class has obtruded into the courts is that of per- sonal injury cases, so called. It has spread through the country like an epidemic, but, unlike the ordinary epidemics of physical disease, it gives no sign of passing away, and fairly promises to become en- demic and permanent. At least two results are already conspicuous: On the one hand, the increased precautions against physical injury and legal liability which are being taken by property owners and employers of labor; and, on the other, the more precise definition and exact enunciation by the courts of the involved law. The former appeals more directly to the laity; the latter, to the legal profession; but the two are inseparable, and form a potent factor for the public weal. It is in these changed conditions the enforced attitude of prop- erty holder and employer, the altered rights of citizen and laborer, and the recent adjustments of these complex relations by the courts that the present work finds its raison d'etre. It is not claimed for it that it is a treatise, or that it is an exhaustive consideration of the subject. The aim has been to fairly and impartially state the settled law, and to so place before the reader the mooted points and conflicting decisions that he may arrive at his own conclusions, ir- respective of any expressed sentiment on the part of the author. In general, the text is the author's expression of the gist of the law as found in the leading cases and decisions of the courts of last re- sort ; its only claim to merit lying in its accuracy and simplicity. In the preparation of the chapter devoted to "Death by Wrongful Act," extended use has been made of the excellent work on that sub- ject by Mr. Francis B. Tiffany. St. Paul, Minn., November 1, 1899. TABLE OF CONTENTS. CHAPTER I. DEFINITION AND ESSENTIAL ELEMENTS. Section Page Introductory 1-2 1. Definition 3 2. Essential Elements 8-9 31. Proximate Cause 9-17 5. Efficient, Intervening, or Co-operating Cause Definition. ... 17-33 CHAPTER H. CONTRIBUTORY NEGLIGENCE. 6. Definition 34-35 7. General Rule 35-36 8. Proximate Cause 36-38 9. Degree of Care 38-39 10. Terror Caused by Real or Fancied Peril 40-41 11. Knowledge of Danger 41-42 12. Assumption of Risk 43-44 13. Anticipation of Negligence 41 45 14. Legal Status of Plaintiff as Affecting His Contributory Negli- gence 45-48 15. Plaintiff as Trespasser or Licensee 48-50 16. The Relative Time of Plaintiff's Negligence as Affecting His Right to Recover 51-53 17. Plaintiff's Negligence after the Accident 53-54 18-19. Contributory Negligence of Third Persons 54-55 20. Master and Servant or Principal and Agent 55-56 21. Shipper and Carrier of Goods 56-58 22-23. Passenger and Common Carrier 58- oo 24. Negligence of Husband Imputed to Wife 60-61 25-27. Imputed Negligence 61-65 28. Degree of Care Required of a Child 65-73 29. Lunatics and Idiots 73-74 30. Physical Condition an Element of Contributory Negligence... 74-76 31. Intoxication 76-79 BAR.NEG. (vii) Vlll TABLE OF CONTENTS. Section Page 32. Comparative Negligence 79-81 33. Evidence Burden of Proof 81-84 34. Pleading Contributory Negligence 85-86 35. Contributory Negligence as Question of Fact 8G-S8 CHAPTER HI. LIABILITY OF MASTER TO SERVANT. 36. Duty of Master 89-90 37. Appliances and Places for Work 90-96 38. Selecting and Retaining Servants 97-101 39. Rules and Regulations 101 40. Promulgation of Rules 102-105 41. Warning and Instructing Servants 105-107 42. Limitation of Master's Duty 108 43. Ordinary Risks 10S-111 44. Known Dangers Assumed 111-113 45. Unusual Dangers not Assumed 113-117 46. Unknown Defects or Daxigers 117-119 47. Promise to Repair 120-122 48. Compliance with Express Orders 122-124 49. Servants and Fellow Servants 124-129 50. Common Employment as Test 129-131 51-52. Vice Principal 131-142 53-54. Rule in Federal Courts 142-145 55. Concurrent and Contributory Negligence 146-151 56. Servants' Own Negligence as Proximate Cause 152 CHAPTER IV. LIABILITY OF MASTER TO THIRD PERSONS. 67. Nature of Master's Liability 153-154 58. Relationship 155-160 59-60. Independent Contractor 160-162 61. Reasonable Care in Selection of Contractor 162 62. Liability When the Object of the Contract is Unlawful. . 163 63. Absolute Personal Duties 163-167 64. Willful Torts of Servants 167-169 65. Torts Outside Scope of Employment 170-171 66. Independent Torts 172-174 TABLE OF CONTENTS. IX CHAPTER V. COMMON CARRIER OF PASSENGERS. Section Page 67. Definition ' 175-176 68. The Relation of Passenger and Carrier 176-178 69. Termination of Relation 178 70. Arrival of Passenger at Destination 178-180 71. Transfer of Passenger to Connecting Carrier 181-182 72. Ejection of Passenger 183-186 73. Who are Passengers Definition 186-193 74. Prepayment of Fare 193-194 75. Classification of Passengers 194-197 76. The Contract 197 77. The Ticket as Evidence 197-200 78. Compensation 200-201 79. Liability to Passengers 201-209 80. Liability for Delay 210-211 81. Limitation of Liability 212-213 CHAPTER VI. CARRIERS OF GOODS. 82. Definition 214-217 83. Liability for Loss or Damage 217-225 84. Act of God or Public Enemy 225-230 85. Act of Shipper 230-232 86. Authority of Law 232-233 87. Inherent Nature of Goods 233-234 88-89. Liability for Delay 234-236 90. Special Contract of Delivery-' 237 91. Contracts Limiting Liability 237-243 92. Limitation in Illinois 244 93. Limitation in New York 244-246 94. Limitation of Amount of Liability 247-250 95. Limiting Time and Manner of Making Claims 250-251 96. Consideration 252-253 97. Construction of Limiting Contracts 253-254 98. Notices Limiting Liability 254-259 99. Actual Notice of Reasonable Rules 259-261 100. Special Classes of Goods 261 101. Live Stock 261-266 102. Baggage 267-278 X TABLE OF CONTENTS. Section Page 103. Effects of Occupants of Sleeping Cars 278 104-105. Beginning of Liability 278 106. Delivery for Immediate Transportation 279-280 107. Acceptance 280-281 108. Termination of Liability 281 109. Delivery to Consignee 282-290 110. Delivery to Connecting Carrier 290-296 111. Excuses for Nondelivery 296 112. Superior Adverse Claim 297 113. Stoppage in Transitu 297-298 114. Excepted Perils 299 CHAPTER VH. OCCUPATION AND USE OF LAND AND WATER. 115. Duties General Rule 300-301 116. Lateral Support 301-302 117. Dangerous Premises 302-303 118. Visitors, Licensees, and Trespassers 304-307 119. Hidden Dangers, Excavations, etc 308-310 120. Private Grounds 310-311 121. Landlord and Tenant 311-312 122. Contract to Repair 312-313 123. Premises Defective at Time of Renting 313-315 124. Liability to Tenant 315-316 125. Safe Access to Rented Property 316-317 126. Water Courses 317-318 127. Construction and Maintenance of Dams 318 128. Rule in United States 318-319 129. Obstruction of Navigable Streams 319-320 CHAPTER VIII. DANGEROUS INSTRUMENTALITIES. 130. Railroads Degree of Care Exacted in Operating 321-322 131-132. Collision with Persons Care Required of Railroad 322-325 133. Care Proportioned to Danger 325-328 134. Signals 328-329 135. Care Required of Persons 329-332 136. Failure to Give Signals 332-333 137. Assurance of Safety by Agents 333-534 13a Obstructed View.. ..334-335 TABLE OF CONTENTS. XI Section Page 139. Infirm Travelers 336 140. Contributory Negligence 337-340 141. Collision with Animals 340-341 142. Wanton or Willful Injury 342-343 143. Care after Discovery 343-344 144. Fences 343-348 145. Fires 348-349 146. Intentional Fires 349-350 147. Accidental Fires 351-353 148. Railroad Fires 353 149. Degree of Care 353-360 150. Animals 360-363 151. Domestic Animals 363-365 152. Communicating Disease 366 153. Firearms 367-368 154. Explosives 368-369 155. Poisons 369-370 CHAPTER IX. NEGLIGENCE OF ATTORNEYS. PHYSICIANS, AND PUBLIC OFFICERS. 156. Negligence of Attorneys 371-374 157. Damage Essential to Liability 375 158. Negligence of Physicians 375-378 159. Burden of Proof Evidence Pleading 378-379 160. Negligence of Public Officers Governmental Officers 379-380 161. Ministerial Officers 380-381 162. Sheriffs and Constables 381-385 163. Notaries Public 385-387 164. Clerks of Court and Registers of Deeds 387-389 CHAPTER X. DEATH BY WRONGFUL ACT. 165-166. Kight of Action 390-397 167. Instantaneous Death 397-398 168. Proximate Cause of Death 398-402 169. Beneficiaries 402-404 170. Damages 404-415 171. Pleading 415-417 172. Evidence 418-419 173. Limitation of Commencement of Action ..419-422 Xll TABLE OF CONTENTS. CHAPTER XI. NEGLIGENCE OF MUNICIPAL CORPORATIONS. Section Page 174-175. Public and Private Corporations 423124 176. Public Corporations Definition 424-425 177. Right of Action 425-427 178. Liability for Injuries 428-438 179. Alteration of Grades 438-440 180. Acts of Officers or Agents 440-444 181. Acts Ultra Vires 444-448 182. Judicial or Legislative Duties 448-451 183. Conflagrations and Destruction by Mobs 451-452 184. Public Health and Sanitation 453 185. Quasi Municipal Corporations 454-457 HANDBOOK ON THE LAW OF NEGLIGENCE. CHAPTER I. DEFINITION AND ESSENTIAL ELEMENTS. 1. Definition. 2. Essential Elements. 8-4. Proximate Cause. 5. Efficient, Intervening, or Co-operating Cause Definition. All attempts to bind down and limit the subject of this work by terse definition have necessarily proved unsatisfactory. The most that can be realized by an effort in this direction is a clear and con- cise grouping into a statement of pertinent words which shall serve to direct attention to the essential elements of the conditions com- posing and embraced in the word "negligence." Anything which at- tempts to go beyond this ceases to be a definition, and becomes merely descriptive and analytical. 1 i Among numerous definitions, we note the following: "Actionable negli- gence 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." Also, in same case: "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 con- duct 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." Brett, M. R., in Heaven v. Fender, 11 Q. B. Div. 506. "The omitting to do something that a reasonable man would do, or the BAR.NEG. 1 2 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1 For mere purposes of convenience in outlining the scope of this work, and not as a solution of the difficulty, or even an improvement over a dozen other definitions, we define actionable negligence thus: doing something which a reasonable man would not do; and an action may be brought if thereby mischief is caused to a third party, not intentionally." Alderson, B., in Blyth v. Waterworks Co., 25 Law J. Exch. 213. "Negligence, in its civil relations, is such an inadvertent imperfection, by a responsible human agent, in the discharge of a legal duty, as immediately produces, in an ordinary and natural sequence, a damage to another. The inadvertency, or want of due consideration of duty is the injuria, on which, when naturally followed by the dainnum, the suit is based." Whart. Neg. 3. "Negligence is the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person, under the existing circumstances, would not have done. The essence of the fault may lie in omission or commission." Swayne, J., in Baltimore & P. R. Co. v. Jones, 95 U. S. 439, at page 442. "Negligence constituting a cause of civil action is such an omission, by a responsible person, to use the degree of care, diligence, and skill which it was his legal duty to use for the protection of another person from injury, as, in a natural and continuous sequence, causes unintended damage to the latter." Shear. & R. Neg. 3. "Negligence is any lack of carefulness in one's conduct, whether in doing or abstaining from doing, wherefrom, by reason of its not fulfilling the measure of the law's requirement in the particular circumstances, there comes to an- other a legal injury to which he did not himself contribute by his own want of carefulness or other wrong." Bish. Noncont. Law, 436. "Some relation of duty, public or private, special or general, must exist, either by contract or as an implication of public policy, before one man becomes liable to another for the consequences of a careless act or omission on the part of the first man which causes injury to the second man; and when such duty does exist, and such careless act or omission occurs, causing an injury in direct and reg- ular sequence, the careless act becomes, in the eyes of the law, actionable neg- ligence, for which the party injured has a right of action against the person inflicting the injury." Pol. Torts, 352. "Negligence, in law, is a breach of duty, unintentional, and proximately producing injury to another possessing equal rights." Smith, Neg. 1. See, also, definitions in following cases: Texas & P. Ry. Co. v. Murphy, 46 Tex. 356; Baltimore & P. R. Co. v. Jones, 95 U. S. 442; Gardner v. Heartt, 3 Denio (N. Y.) 232, at page 236; Tonawanda R. Co. v. Munger, 5 Denio (N. Y.) 255; Brown v. Railway Co., 49 Mich. 153, 13 N. W. 494; Northern Cent. Ry. Co. v. State, 29 Md. 420; Philadelphia, W. & B. R. Co. v. Stinger, 78 Pa. St. 225; Barber v. Town of Essex, 27 Vt. 62; Elaine v. Rail- road Co., 9 W. Ya. 252; Fletcher v. Railroad Co., 1 Allen (Mass.) 9; Cayzer v. Taylor, 10 Gray (Mass.) 274; Frankford & B. Turnpike Co. v. Philadelphia & T. R. Co., 54 Pa. St. 345; Kelsey v. Barney, 12 N. Y. 425; Unger v. Railway Co., 51 N. Y. 497; Grant v. Moseley, 29 Ala. 302; Pennsylvania R. Co. v. Matthews, 2) ESSENTIAL ELEMENTS. DEFINITION. 1. The inadvertent failure to perform a noncontractual duty, to the logically consequent damage of a third person. ESSENTIAL ELEMENTS. 2. The essential elements are at once discerned: (a) A legal duty. (b Failure in performance. (c) Inadvertence. (d) Damage. It is, of course, assumed that the neglector is a legally responsible person, otherwise a legal duty could not be predicated of his conduct. The Legal Duty. The duty violated must be one recognized by law; that is, one which the law requires to be done or forborne, either towards the public or a particular person. With every duty there is, of course, a corresponding right to compel its enforcement. But, as used in the definition, the term "duty" must be greatly contracted in its ap- plication, for not every failure to perform a legal duty, although the other elements of negligence may be present, will constitute action- able negligence. E. g. it is the legal duty of the maker of a prom- issory note to pay the same at maturity. The matter may entirely escape his mind, and the nonpayment damage the holder much be- yond the amount for which the note was made, yet no action for neg- ligence would lie. 36 N. J. Law, 531; Bizzell v. Booker, 16 Ark. 308; Chicago, B. & Q. R. Co. v. Johnson, 103 111. 512, 521; Great Western R. Co. v. Haworth, 39 111. 340, 353; Carter v. Railroad Co., 19 S. C. 20, 24; Kerwhaker v. Railroad Co., 3 Ohio St. 172; Galloway v. Railway Co., 87 Iowa, 458, 54 N. W. 447; Texas & P. Ry. Co. v. Gorman, 2 Tex. Civ. App. 144, 21 S. W. 158; Moulder v. Railroad Co., 1 Ohio N. P. 361; Texas & P. Ry. Co. v. Curlin, 13 Tex. Civ. App. 505, 36 S. W. 1003; Missouri, K. & T. Ry. Co. of Texas v. Hannig, 91 Tex. 347, 43 S. W. 508; Irvin v. Railway Co. (Tex. Civ. App.) 42 S. W. 661; Missouri, K. & T. Ry. Co. of Texas v. Webb (Tex. Civ. App.) 49 S. W. 526; Yaughan v. Railroad Co., 5 Hurl. & N. GS7. 4 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1 The duty violated must be noncontractual between the parties, implied or expressly created by law. When the minds of two parties meet, and they mutually agree to govern their conduct in accordance with expressed stipulations, any breach of that agreement is refer- able for adjustment to the contract. But the affairs of mankind are so intricate, and human nature so selfish, the tendency to jostle and crow r d so ingrained in every class of society and business, that law r by implication and statute, is compelled to direct and check the in- dividual at every turn, and to impress on him that he is not absolute- ly unrestricted in the enjoyment of his property; that "sic utere tuo ut alienum non laedas." The duty must be owing from the defendant to the plaintiff, other- wise there can be no negligence, so far as the plaintiff is concerned. 1 Moreover, it should be borne in mind that there can be no duty to do an act unless one has a right to do it, 2 and the duty must be owing to plaintiff in an individual capacity, and not merely as one of the general public. 8 Same Breach of Moral Duty Insufficient. This excludes from actionable negligence all failures to observe the obligations imposed by charity, gratitude, generosity, and the kindred virtues. The moral law would obligate an attempt to rescue a per- son in a perilous position, as a drowning child, but the law of the land does not require it, no matter how little personal risk it might involve, provided that the person who declines to act is not respon- sible for the peril. Failure in Performance. The breach of duty may consist in the omission to perform a posi- tive duty, or in the commission of an act which is forbidden. Austin 1-2. i Hofnagle v. Railroad Co., 55 N. Y. 608; Gross v. Railway Co. r 73 111. App. 217. a Carpenter v. City of Cohoes, 81 N. Y. 21; Veeder v. Village of Little Falls, 100 N. Y. 343, 3 N. E. 306 (city held not liable for not putting fences on high- way belonging to state). s Peck v. Village of Batavia, 32 Barb. 634 (action against city for negligence in failing to keep bridge in repair); City of Albany v. Cunliff, 2 N. Y. 165; Blagrave v. Waterworks Co., 1 Hurl. & N. 369 (defendant blocked highway, and compelled public to cross plaintiff's land in order to get by the obstruc- tion). : 2) ESSENTIAL ELEMENTS. 5 says : 4 "The party who is negligent omits an act and breaks a positive duty; the party who is heedless does an act and breaks a negative duty." This distinction is metaphysical, and of no practical value. Failure in performance will be discussed at greater length Tiereafter. For the present analysis, it is sufficient to state that in general the breach of duty consists in the failure to use the kind of care usually exercised by competent, prudent persons, in sufficient numbers to form a class, in similar transactions. Inadvertence. The failure to perform the required duty must be inadvertent. 'This is implied in the word "negligence" itself. Austin distinguishes "between "negligence" and "heedlessness," but admits that the words indicate precisely the same state of mind. 'In either case the party is inadvertent. In the. first case he does not an act which he was bound to do, because he adverts not to it; in the second case he does an act which he w r as bound to forbear, because he adverts not to cer- tain of its probable consequences. Absence of a thought which one's duty would naturally suggest is the main ingredient in each of the com- plex notions which are styled 'negligence' and 'heedlessness.' * * * 'The party who is guilty of rashness thinks of the probable mischief, but in consequence of a misapprehension, begotten by insufficient advert- ence, he assumes that the mischief will not ensue in the given in- stance or case. * * *" 5 It is immaterial how we define and dis- tinguish the various mental conditions implied by these different terms. Each carries the characteristics of inadvertence, the fail- ure to connect the act with the result; and the culpability of the defendant lies equally in each, being referable to his want of due con- sideration for his duty. Same "Heedlessness" and "Malice" Distinguished. Although the term "willful negligence" is paradoxical, authorities are not entirely wanting who sanction its use. 6 It is probable, as * Aust. Jur. (3d Ed.) 1440. e Id. Peoria Bridge Ass'n v. Loomis, 20 111. 235, 71 Am. Dec. 263; Toledo, W. .& W. Ry. Co. v. Beggs, 85 111. 80; Holmes v. Railway Co., 48 Mo. App. 79; Hancock v. Railroad Co. (Ind. App.) 51 N. E. 369; Jacksonville S. E. Ry. Co. v. South worth, 135 111. 250, 25 N. E. 1093; Chicago & N. W. R. Co. v. -Chapman, 30 111. App. 504; Chesapeake & O. Ry. Co. v. Yost (Ivy.) 2'J S. W. 6 DEFINITION AND ESSENTIAL ELEMENTS. (Gil. i suggested by Mr. Smith, 7 that in many instances "willful" is used to mean only "reckless," but the explanation, if true, in no degree ex- cuses the use of the word when applied to negligence. Moreover, to say that cases of negligence, as they arise in practice, and as found in reports, are not determined by theoretical considerations, 8 is beside the issue. It is on the line of practical treatment that we insist the distinction should be drawn. It is true that in many cases it is immaterial, as to the justice of the verdict, whether the act com- plained of is really willful or merely inadvertent, but in very many more the question of intent is vital to the issue. "The distinction between 'negligence' and 'willful tort' is important to be observed, not only in order to avoid a confusion of principles, but it is necessary in determining the question of damages, since, in case of an injury by 326. In Cleveland, C., C. & I. Ry. Co. v. Asbury, 120 Ind. 289, 22 N. E. 140, the complaint alleged "wanton" and "willful" negligence, and "intention to injure" plaintiff, but the court held the gist of the action to be simple negli- gence, and sustained the complaint. Also, see Louisville & N. R. Co. v. Mitch- ell, 87 Ky. 327, 8 S. W. 706; Hays v. Railway Co., 70 Tex. 602, 606, 8 S. W. 491. Whitt. Smith, Neg. p. 3: "If an act be intentional, it becomes fraudulent and criminal, or it may be a trespass. * * * 'Intentional negligence,' a phrase sometimes used, seems to involve a contradiction in terms. So, also, the words 'willful negligence' are often used, where, if by 'willful' is meant 'intentional/ the same objection applies; but if by 'willful' only 'recklessness' is meant, the phrase 'willful negligence' seems unobjectionable." Actions for "willful" and "wanton" negligence are frequently brought. Kentucky Cent. R. Co. v. Gastineau's Adm'r, 83 Ky. 119. Willful neglect in this case is defined as an intentional failure to perform a manifest duty in which the public has an interest, or which is important to the person injured in either preventing or avoiding the injury. Newport News & Mississippi Val. Co. v. Dentzel's Adm'r, 91 Ky. 42, 14 S. W. 958. In some cases knowledge of probable conse- quences is held equivalent to willfulness, and a consciousness must exist that the conduct will almost surely result in an injury. Georgia Pac. Ry. Co. v. Lee, 92 Ala. 262, 9 South. 230; Richmond & D. R. Co. v. Vance, 93 Ala. 144, 9 South. 574. It has been held that to run a locomotive in the dark, along a frequented road, at a high and dangerous rate of speed, without a headlight, and without ringing the bell, is evidence sufficient to establish willful neg- ligence. East St. Louis Connecting Ry. Co. v. O'Hara, 49 111. App. 282, affirmed in 150 111. 580, 37 N. E. 917. Again, in Chesapeake & O. Ry. Co. v. Yost (Ky.) 29 S. W..326, it was said that the term "willful neglect" applied only to actions for loss of life involving punitive damages. T Whitt. Smith, Neg. p. 3. 8 Pigg. Torts, 208. 2) ESSENTIAL ELEMENTS. 7 the former, damages can only be compensatory, while in the latter they may also be punitory, vindictive, or exemplary. 9 The distinction is also needful because of the defenses which may be set up. Con- tributory negligence of the plaintiff is no bar to an action for a willful tort, though it is a complete bar to an action for negligence." 10 From a consideration of the cases it seems probable that the words "willful," "malicious," and others indicating a wrongful, deliberate intention, are often coupled with the word "negligence" by the courts, and thus used to designate what they would term "gross negligence" ; the recovery being limited to the immediate or proximate results of the wrongful act. And again "gross negligence" is made sufficiently elastic to include acts mala in se, and thus support a verdict for re- mote damages, as for a willful tort. This inaccuracy is to be re- gretted, for its evil consequences are far-reaching. Decisions thus made are quoted, as authorities, and serve to sustain recovery for simple negligence, where the cause was remote, and also to allow the wrongdoer to escape the just penalty for an act which is malum in se, and not "gross negligence." In criminal as well as in civil actions the term "negligence" is made to include both "heedlessness" and "rashness," provided always that the element of evil design is not injected to change the mental condition of mere inadvertence into malicious intent. This mental condition involving malice the intent that harm should flow from the act or omission was clearly recognized by the Roman law under the term "dolus." Theoretically, at least, the pres- ence of malicious intent is fatal in an action for negligence. If the malice is pleaded, it must be shown. Proof of mere negligence will 9 Walrath v. Redfield, 11 Barb. (N. Y.) 368; 1 Suth. Darn. 724; Day v. Wood- worth, 13 How. 3G3. The recovery of punitive or vindictive .damages is allowed only where the act causing the injury has been willfully done, or where the circumstances indicate that there was a deliberate, preconceived, or posi- tive intention to injure, or show that reckless disregard of person or prop- erty which is equally culpable. Wallace v. Mayor, etc., 2 Hilt. (N. Y.) 440; Moody v. McDonald, 4 Cal. 297. 10 Derby's Adm'r v. Kentucky Cent. R. Co. (Ky.) 4 S. W. 303; McMahon v. Davidson, 12 Minn. 357 (Gil. 232). In Carroll v. Railroad Co., 13 Minn. 30 (Gil. 18), McMillan, J., says: "It is a well-settled rule that, although the de- fendant may be guilty of negligence, unless there was some intentional wrong on his part, the plaintiff cannot recover for an injury to which he himself has contributed." 8 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1 not sustain a verdict. 11 On the other hand, it not infrequently hap- pens that under a complaint for negligence proper the evidence elicit- ed shows clearly the willfulness of the act or omission. The develop- ment of this element at the trial cannot nonsuit the plaintiff. The greater includes the less. He has overproved his case, and it will not be allowed to react to the injury of his claim. But, on the other hand, the plaintiff should not, in such an event, be allowed to make use of this element of malice for the purpose of influencing the jury, and securing greater damages than should be awarded in strict con- formity to the pleaded case. It follows, as a corollary to what has just been said, that, if malice has not been specifically pleaded in the complaint, direct proof of such intent is inadmissible at the trial. 12 Damage. The damage must be a logical consequence; the injury complained of must follow the breach of duty in an ordinary and natural sequence. Much of the confusion which exists in the discussion of principles, and many of the apparent conflicts in reported cases, arise from an inaccurate use of terms. The Latin language was peculiarly adapted to exact definition, and the Romans themselves were strict and uni- form in their employment of legal terms. On the other hand, the English language is proverbially loose and inexact, and the employ- ment of many of the Latin terms therefore becomes not only con- venient, but in many cases absolutely essential to distinct expression in legal analysis. Unless, however, the original and precise meaning of terms thus incorporated is carefully preserved, confusion and mis- understanding inevitably result. For the double purpose, therefore, 11 Indiana, B. & W. Ry. Co. v. Burdge, 94 Ind. 46; Hancock v. Railway Co. (Ind. App.) 51 N. E. 369; Pennsylvania Co. v. Smith, 98 Ind. 42. In this case the complaint alleged that: "* * * defendant's engineer on said train, In a willful, reckless, careless, and unlawful manner, let on such a volume of steam to the engine as caused said train to jump," etc. The court says: "The principal question arising on the motion for a new trial is, was the verdict sustained by sufficient evidence? A verdict cannot be disturbed where there is any competent evidence tending to support it. Under the allegations of the complaint here, there could be no recovery unless the injury was proved to have been willful. We think there was no evidence tending to show a willful injury." 12 Pennsylvania Co. v. Smith, 98 Ind. 42. 3-4) PROXIMATE CAUSE. 9 of exactness and convenience, it is necessary to call attention to the distinction between the "injuria" and the "damnum," both of which must be present in every case of actionable negligence. These terms will be used frequently hereafter in their strict application. Same "Iiywria" and "Damnum" Distinguished. Injuria does not mean injury or mischief. In its derivative sense it means unlawfulness ; in its legal adoption it embodies whatever is done contrary to law. Damnum is legal mischief flowing in a direct .and natural sequence from the injuria. Theoretically, at least, every fracture of the law injuria must be productive of damnum or Tiarm ; but the converse, viz. that every damnum or harm is the result of injuria, is 'not true. Damnum may occur without injuria. Thus, the harm done another by the willful destruction of his property is damnum, and, in the abstract sense, a law is violated; but in the con- crete act under consideration it may well be that the circumstances excused the performer, as, in the event of a conflagration in a city, the blowing up of buildings to prevent the spread of the fire is upheld .and sanctioned by law as a necessity to avert greater loss. 18 PROXIMATE CAUSE. 3. Negligence being proved, the relation of cause and ef- fect must be established, directly connecting the breach of duty -with the injury to plaintiff. 4. A proximate cause may be denned as one which, oper- ating in accordance with natural laws, in a con- tinuous sequence, is the main factor in producing the event in question. It has been sometimes said that a person is not liable for an in- jury which he cannot foresee as the result of his act, 1 but this is cer- tainly not true. The case of Blyth v. Birmingham Waterworks 2 has been often cited as supporting this doctrine, but we are unable !3 Respublica v. Sparhawk, 1 Dall. 357; Maleverer y. Spinke, 1 Dyer, 36; Smith v. City of Rochester, 76 N. Y. 506; Neuert v. City of Boston, 120 Mass. -338. And see post, p. 452. 3-4. i Whitt. Smith, Xeg. p. 24. 2 Law J. 11 Exch. 781. 10 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1 so to interpret this decision. In the case of Smith v. London & S. W. R. Co., 3 Channel!, B., said: "Where there is no direct evidence of negligence, the question what a reasonable man might foresee is of importance in considering the question whether there is evidence for the jury of negligence or not; and this is what was meant by Bramwell, B., in his judgment in Blyth v. Birmingham Waterworks Co.; * * * but, where it has been once determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not." In the case of Milwaukee & St. P. Ry. Co. v. Kellogg 4 the court say : "It is admitted that the rule is difficult of application. But it is generally held that, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the -injury was the natural and probable conse- quence of the negligence or wrongful act, and that it ought to have- been foreseen in the light of the attending circumstances." In this and many other decisions, 5 which may be regarded as leading, it will s L. E. 6 C. P. 21. * 94 U. S. 469, 475. s Hoag v. Railroad Co., 85 Pa. St. 293: "A man's responsibility for his negligence and that of his servants must end somewhere. There is a possibil- ity of carrying an admittedly correct principle too far. * * * The true rule is that the injury must be the natural and probable consequence of the negli- gence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely ta flow from his act." See, also, Pol. Torts, 36, 37; Pittsburgh Southern Ry. Co. v. Taylor, 104 Pa. St 306; Jacksonville, T. & K. W. Ry. Co. v. Peninsular Land, Transp. & Mfg. Co., 27 Fla. 1, 157, 9 South. 661; Deisenrieter v. Malt- ing Co., 97 Wis. 279, 72 N. W. 735; Schneider v. Railway Co., 99 Wis. 378, 75 N. W. 169; Motey v. Granite Co., 20 C. C. A. 366, 74 Fed. 155. In McGrew v. Stone, 53 Pa. St. 436, the language of the court is still stronger: "Within the probable range of ordinary circumspection." In Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469, plaintiff's property, a sawmill, was destroyed by fire alleged to have been negligently caused by defendant in the operation of its steamboat. The testimony tended to show that defendants' steamboat set fire to defendants' elevator, and that the fire was thence communicated to plaintiff's mill. At the time of the fire a strong wind was blowing from the elevator towards the mill, which was '538 feet distant, and towards plaintiff's lumber, the nearest pile of which was 388 feet distant. The supreme court held that it was not error on the part of the trial court to refuse to charge as follows: "If they believed the sparks from the Jennie Brown set fire to the 3-4) PROXIMATE CAUSE. 11 be observed that the language is, "ought to have been foreseen." This theory is substantially sustained by a long line of decisions, in which the courts seemingly hold that the result must be so intimately con- nected with the cause, in a direct and natural sequence of events, that a man of ordinary prudence and intelligence would actually have foreseen some injurious result, although not necessarily the one that did ensue. 6 elevator through the negligence of the defendants, and the distance of the elevator from the nearest lumber pile "was three hundred and eighty-eight feet, and from the mill five hundred and thirty-eight feet, then the proximate cause of the burning of the mill and lumber was the burning of the elevator, and the injury was too remote from the negligence to afford a ground for a recovery." The court then goes on to say: "The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it. The primary cause may be the proximate cause of a disaster, though it may operate through suc- cessive instruments, as an article at the end of a chain may be moved by a force applied to the other end, the force being the proximate cause of the movement; or as in the oft-cited case of the squib thrown in the market place. The question always is, was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts con- stitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening be- tween the wrong and the injury?" e Louisville & N. R. Co. v. Guthrie, 10 Lea (Tenn.) 432; West Mahanoy Tp. v. Watson. 112 Pa. St. 574, 3 Atl. 8G6; Wabash, St. L. & P. Ry. Co. v. Locke, 112 Ind. 404, 14 N. E. 391; McClary v. Railroad Co., 3 Neb. 44; Atkinson v. Transportation Co., 60 Wis. 141, 18 X. W. 764; Toledo, W. & W. Ry. Co. v. Muthersbaugh, 71 111. 572; Tutein v. Hurley, 98 Mass. 211; Lane v. Atlantic Works. Ill Mass. 136; Hill v. Winsor, 118 Mass. 251; Campbell v. City of Stillwater, 32 Minn. 30$, 20 N. W. 320; McDonald v. Snelling, 14 Allen (Mass.) 290; Scheffer v. Railroad Co., 105 U. S. 249; Pittsburgh Southern Ry. Co. v. Taylor, 104 Pa. St. 306; Ward v. Weeks, 7 Bing. 211 (slander); Greenland v. Chaplin, 5 Exch. 243; Clark v. Chambers, 3 Q. B. Div. 327; Illidge v. Goodwin, 5 Car. & P. 190; Coley v. City of Statesville, 121 N. C. 301, 28 S. E. 482. In Glover v. Railroad Co., L. R. 3 Q. B. 25, a counter, which had been left for some time on the sidewalk, unexpectedly fell, and killed a child. There was no doubt that the child's death was the proximate and direct result of defendant's action in leaving the counter where he did, but it was decided that he had not been negligent in so doing, and therefore no recovery could be had for the injury. Pol. Torts, pp. 36, 37: "It follows that if, in a particu- lar case, the harm complained of is not such as a reasonable man in the 12 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1 Te t of Negligence must not be Used as Test of Proximate Cause. In attempting to distinguish between the decisions that follow the doctrine laid down in Smith v. London & S. W. K. Co. and those that adopt the principle enunciated in Milwaukee & St. P. R. Co. v. Kellogg it should be observed that in many of the latter class there was no direct evidence of negligence or breach of duty on the part of defend- ant, but, instead of subjecting the original act of the defendant to the test of proper care, they apply this same test to the result of his act, in order to determine the relation of cause and effect. The argu- ment shapes itself something like this: The injury could not have been foreseen by the use of proper care; therefore the lack of proper care cannot be its proximate cause. The inquiry should be conducted something as follows: Was proper care observed in the circumstan- ces? And in determining this question reference must be had to possible injurious results happening to any one. If answered in the affirmative, the case falls to the ground, for there can be no recovery. If answered in the negative, it must then be asked, does the injury complained of fall within the class of results contemplated as possi- ble in testing the degree of care required of the defendant? and, lastly, is the particular injury a regular and natural consequence of defend- ant's negligence? It must be kept in mind that a breach of duty is essential to a re- covery in an action for negligence. Harm may result directly from a nonnegligent act; there may be damnum without injuria. 7 A per- son, in a careful and prudent manner, attempts to separate two dogs which are fighting, and accidentally injures plaintiff. 8 Here the de- defendant's place should have foreseen as likely to happen, there is no wrong and no liability." In attempting to distinguish between these cases and those which follow the rule laid down in Smith v. Railroad Co., viz.: "Where there is evidence of negligence, the person guilty of it is equally liable for the con- sequences, whether he could have foreseen them or not," it should be observed that in many of the preceding and similar cases there was no evidence of negligence other than the fact that the injury complained of resulted, more or less remotely, from defendant's act. In other words, the question to be determined in many of these cases is, was defendant guilty of any negli- gence at all? and not, was the injury the proximate result of defendant's act? See City of Chicago v. Starr, 42 111. 174. 7 See ante, p. 9. Brown v. Kendall, 6 Cush. (Mass.) 292. 3-4) PROXIMATE CAUSE. 13 fendant's act was unquestionably the proximate cause of the injury, but it is equally unquestionable that no one in defendant's position could have foreseen the possibility of injury resulting to any one, and, if he used the proper degree of care in attempting to separate the dogs, there can be no liability. The difficulty experienced in lay- ing down a general rule to cover every case has led some of the ablest judges to decline to state a fixed rule. 9 -Notwithstanding these au- thorities, the tendency of the courts would seem to be that, negligence being established, the person guilty of it is liable for its consequences, whether they be such as he could or ought to have foreseen or not. 1 * Page v. Bucksport, 64 Me. 51; Willey v. Inhabitants of Belfast, 61 Me. 569. Fleming v. Beck, 48 Pa. St. 309 (Agnew, J.): "In strict logic it may be said that he who is the cause of loss should be answerable for all the losses- which flow from his causation. But in the practical -workings of society the law finds, in this as in a great variety of other matters, that the rule of logic is impracticable and unjust. The general conduct and the reflections of man- kind are not founded upon nice casuistry. Things are thought and acted upon rather in a general way than upon long, laborious, extended, and trained in- vestigation. Among the masses of mankind, conclusions are generally the- results of hasty and partial reflection. Their undertakings, therefore, must be construed in view of these facts; otherwise, they would often be run into a chain of consequences wholly foreign to their intentions. In the ordinary callings and business of life, failures are frequent Few, indeed, always come up to a proper standard of performance, whether in relation to time, quality, degree, or kind. To visit upon them all the consequences of failure would set society upon edge, and fill the courts with useless and injurious litigation. It is impossible to compensate for all losses, and the law therefore aims at a just discrimination, which will impose upon the party causing them the proportion of them that a proper view of his acts and the attending circumstances would dictate." 10 Smith v. Railroad Co., L. R. 6 C. P. 14. "The word 'proximately' is to- be distinguished from the word 'culpably.' An act, to be culpable, that is, to be a breach of legal duty, must, as we have seen, be such as a reasonably careful man -would foresee would be productive of injury, and the person i& not liable for an injury he could not foresee; but a breach of duty, to be proximately producing injury, must be such that, whether defendant could, foresee the injury to be probable or not, the breach of duty is in fact the probable cause of the injury." Smith, Neg. *16. Louisville, N. A. &, C. R.. Co. v. Nitsche, 126 Ind. 229, 26 X. E. 51, 45 Am. & Eng. R. Cas. 532 (Elliott, J.): "The wrong of the appellant put in motion the destructive agency, and the result is directly attributable to that wrong. In this instance cause and effect are interlinked. There is no break. The chain is perfect and complete.'^ 14 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1 The apparent severity of this rule is modified when it is considered that the establishment of negligence is a condition precedent to its enforcement, and in determining this question of negligence the test may be applied whether the occurrence of some such injury as that suffered by -plaintiff, if seasonably suggested, would not have been recognized by defendant as a possible consequence of his act. In theory, at least, there is no escape from the conclusion that there is no limit to the liability of a person for the direct, natural results of his negligence. Consider the case of a fire set by defendant's loco- motive. Concede that it occurred by reason of a defective spark Baltimore City Pass. Ry. Co. v. Kemp, 61 Md. 74, 619, 18 Am. & Eng. R. Gas. 220; Terre Haute & I. R. Co. v. Buck, 96 Ind. 346, 18 Am. & Eng. R. Cas. 234; Liming v. Railroad Co., 81 Iowa, 246, 47 N. W. 67; Hess v. Mining Co., ITS Pa. St. 239, 35 Atl. 990; Rosenbaum v. Shoffner, 98 Term. 624, 40 S. W. 1080; International & G. N. R. Co. v. Mclver (Tex. Civ. App.) 40 S. W. 438; Webster v. Symes, 109 Mich. 1, 66 N. W. 580. In Lowery v. Railway Co., 99 N. Y. 158, 1 N. E. 608, fire fell from defendant's locomotive upon a horse attached to a wagon, and also on the driver's hand. The horse ran away. The driver tried to stop him, and, failing, turned him onto the curb. The horse crossed the curb, and injured plaintiff. The court > said: "* * * If he made a mis- take of judgment, the defendant was not relieved of liability. We think that the damage sustained by the plaintiff was not too remote, and that the wrongful act of the defendant in allowing the coals to escape from the locomo- tive, thus causing the horse to become frightened and run, was the proximate cause of the injury, and that the running away of the horse and the collision with the plaintiff were the natural and probable consequences of the negli- gence of the defendant." In this case the court attempts to distinguish it from Ryan v. Railroad Co., 35 N. Y. 210, but it would appear that the Ryan Case is overruled both by this and Webb v. Railroad Co., 49 N. Y. 420. An instruction which attempts to define the character and degree of negligence which would authorize a recovery for an injury, but which omits the essential qualification that the negligence upon which a recovery must be based is such as contributed to the injury, and such alone, is erroneous. Chicago & N. W. Ry. Co. v. Carroll, 12 111. App. 643. In Ehrgott v. Mayor, etc., 96 N. Y. 264, Earl, J., emphatically refuses to recognize any limit of liability imposed by inability to foresee the injurious consequences. After a vigorous summary, he concludes as follows: "The true rule, broadly stated, is that a wrongdoer is liable for the damages which he causes by his misconduct. * * * The best statement of this rule is that a wrongdoer is responsible for the natural and proximate consequences of his misconduct, and what are such consequences must generally be left for the determination of the jury." But see Cook v. Railway Co., 97 Wis. 624, 74 N. W. GUI. 3-4) PROXIMATE CAUSE. 15 arrester, and that the conditions prevailing were a high wind, a drouth, and unlimited prairies, continuously covered with a heavy growth of dead, dry grass. A falling spark sets fire to a tie, is com- municated to weeds growing on the roadbed, spreads to the prairie grass, which in turn sets fire to A.'s house, situated 100 feet from the track. Unquestionably defendant is liable to A. 11 No new element is introduced by the supposition that A.'s house is removed 1 mile or 50 miles further out into the prairie grass. The determining condi- tions are unchanged by increasing the distance, and the defendant must still be held liable. Xor is the situation in any respect altered by apportioning the title to the intervening 50 miles among 50 or 100 owners. 12 In discussing the causal connection in such cases, Dr. Wharton says: 13 "Of course, we will all hold that in such case the liability must stop somewhere. The only rule to which we can re- sort is that just noticed, that causal connection ceases where there is interposed between the negligence and the damage an object which, if due care had been taken, would have prevented the damage." It would seem to us that in this solution the learned doctor has not more than barely escaped a petitio principii. The only limitation of liability in cases like this, where the causal connection is not broken, must be placed by the good sense of the jury, under proper instructions from the court. Where defendant's steamboat negligently set fire to accumulated shavings and sawdust on the shore, which in turn set fire to a planing mill, burned nearly 100 intervening houses, and finally destroyed plaintiff's building, at a distance of nearly a mile from the starting point, defendant's negligence was held to be the proximate cause of 11 Webb v. Railroad Co., 49 N. Y. 420; Haverly v. Railroad Co., 135 Pa. St. 50, 19 Atl. 1013, 26 Wkly. Notes Cas. 321. 12 Cincinnati, N. O. & T. P. R. Co. v. Barker, 94 Ky. 71, 21 S. W. 347. If the fire spreads from the matter first ignited, the intervention of considerable space, or of various physical objects, or a diversity of ownerships, does not preclude recovery, or affect the company's liability for its first negligent act. Chicago, St. L. & P. R. Co. v. Williams, 131 Ind. 30, 30 N. E. 696; Union Pac. Ry. Co. v. McColluni, 2 Kan. App. 319, 43 Pac. 97; Chicago, R. I. & P. Ry. Co. v. McBride, 54 Kan. 172, 37 Pac. 978; Chicago & E. R. Co. v. Luddington, 10 lud. App. 636, 38 N. E. 342; Cincinnati, N. O. & T. P. Ry. Co. v. Barker, 94 Ky. 71, 21 S. W. 347. is Smith, IS" eg. 149, 150. 16 DEFINITION AND ESSENTIAL ELEMENTS. (Ch . 1 the injury to plaintiff. The case follows Milwaukee & St. P. Ry. Co. v. Kellogg, 14 although it is an extension of the principle therein de- cided. In rendering its decision the court says: "In our opinion, upon the evidence in this case, it was for the jury, and not the court,, to say whether the negligence of the defendant was the proximate cause of the burning of the Atkinson house. * * * The force of the wind at the time, the dryness of the season, and the combustible nature of the buildings intervening between the place where the fire was kindled and the place where the plaintiff's house stood, were all facts to be considered in determining whether there was a reasonable probability that the fire would extend so far; and the jury must pass upon these facts as bearing upon the question of reasonable prob- ability." 15 The court then cites with approval the language of Dixon, J., in Kellogg v. Chicago & N. W. Ry. Co., 16 as follows: "It will be observed that the rule, as we find it laid down, and as we believe it to be, is not that the injury sustained must be the necessary or un- avoidable result of the wrongful act, but that it shall be the natural and probable consequence of it, or one likely to ensue from it." In Milwaukee & St. P. Ry. Co. v. Kellogg 1T the United States su- preme court approve the language of the circuit court in instruct- ing the jury as follows : "The question' always is, was there an un- broken connection between the wrongful act and the injury, a con- i*94 U. S. 469. is Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. 764; Green Ridge R. Co. v. Brinkman, 64 Md. 52, 20 Atl. 1024; Grain v. Railroad Co., 1 N. D. 252, 46 N. W. 972; Potter v. Gas Co., 183 Pa. St. 575, 39 Atl. 7; Denver, T. & G. R. Co. v. Robbins, 2 Colo. App. 313, 30 Pac. 261. But see Pennsylvania Co. v, Whitlock, 99 Ind. 16; Louisville, X. A. & C. Ry. Co. v. Nitsche, 126 Ind. 229, 26 N. E. 51. 1626 Wis. 223, at page 281. IT 94 U. S. 469, repudiating the doctrine of Ryan v. Railroad Co., 35 N. Y. 210, and Pennsylvania R. Co. v. Kerr, 62 Pa, St. 353. But in a subsequent case Scheffer v. Railroad Co., 105 U. S. 249 it was held that the suicide of deceased "was not a result naturally and reasonably to be expected from the injury received on the train. It was not the natural and probable conse- quence, and could not have been foreseen in the light of the circumstances attending the negligence of the officers in charge of the train." In this case the injuries sustained by deceased, through defendant's negligence, produced insanity leading to suicide. The ruling in Kellogg v. Railway Co. is, bow ever, fully approved. 5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 17 tinuous operation? Did the facts constitute a continuous succes- sion of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury? It is admitted that the rule is difficult of ap- plication. But it is generally hel'd that, in order to warrant a find- ing that negligence, or an act not amounting to w r anton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. * * * We do not say that even the natural and probable consequences of a wrongful act or omission are in all cases to be chargeable to the misfeasance or nonfeasance. They are not when there is a sufficient and independent cause operating between the wrong and the injury. * * * In the nature of things, there is in every transaction a succession of events, more or less dependent upon those preceding, and it is the province of a jury to look at this succession of events or facts, and ascertain whether they are natu- rally and probably connected with each other by a continuous se- quence, or are dissevered by new 7 and independent agencies, and this must be determined in view of the circumstances existing at the time." EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE- DEFINITION. 5. Where an independent, efficient, "wrongful cause inter- venes between the original wrongful act and the injury ultimately suffered, the former, and not the latter, is deemed the proximate cause of the injury. Intervening Cause. An efficient, intervening cause is a new proximate cause, which breaks the connection with the original cause, and becomes itself solely responsible for the result in question. It must be an inde- pendent force, entirely superseding the original action, and rendering its effect in the chain of causation remote. 1 5. i Louisville & X. R. Co. v. Kelsey, 89 Ala. 287, 7 South. 648; Pennsyl- vania Co. v. \Vhitlock, 99 Ind. 16; Read v. Nichols, 118 N. Y. 224, 23 N. E. BAR.NEG. 2 18 DEFINITION AND ESSENTIAL ELEMENTS. (Cll. 1 It is immaterial how many new elements or forces have been intro- duced; if the original cause remains active, the liability for its result is not shifted. 2 Thus, where a horse is left unhitched in the street, 468; Fairbanks v. Kerr, 70 Pa. St. 86; Scheffer v. Railroad Co.. 105 U. S. 249; Agnew v. Corunna, 55 Mich. 428, 21 N. W. 873; Smith v. Sherwood Tp., 62 Mich. 159, 28 N. W. 806; Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469; Wellman v. Borough of Susquehanna Depot, 167 Pa. St. 239, 31 Atl. 566: St. Joseph & G. I. R. Co. v. Hedge, 44 Neb. 448, 62 N. W. 891; Texas & P. Ry. Co. v. Woods, 8 Tex. Civ. App. 462, 28 S. W. 416; Pollard v. Railroad Co., 87 Me. 51, 32 Atl. 735; .City of Peoria v. Adams, 72 111, App. 662; Willis v. Armstrong Co., 183 Pa. St. 184, 38 Atl. 621; Childrey v. City of Huntington, 34 W. Va. 457, 12 S. E. 536; Schwartz v. Shull (W. Va.) 31 S. E. 914; St. Louis, I. M. & S. Ry. Co. v. Maddry, 57 Ark. 306, 21 S. W. 472; Read v. Nichols, 118 N. Y. 224, 23 N. E. 468. In Beall v. Athens Tp., 81 Mich. 536, 45 N. W. 1014, a horse driven by plaintiff shied at a log of wood, and, being struck with the whip, tipped the buggy over, causing the injuries complained of. The court says: "The important question in the case is whether the narrowness of the highway and the neglect to place railings or barriers along it primarily caused the accident. The township is only liable where the neglect complained of was the proximate cause of the injury. If such neglect was the secondary or remote cause, the township is not liable. The testimony shows conclu- sively, and without contradiction, that the primary cause of the accident arose from the horse taking fright at a log at the side of the road, and the act of the driver in striking the horse a blow with his whip." The trial court instructed the jury: "So it makes no difference what the horse got fright- ened at, if the negligence of the township is the cause of the accident not be- ing prevented." This was held error, for the reason that it loses sight of the distinction between proximate and remote cause, the appellate court say- ing: "An injury caused by negligence and an accident not being prevented by negligence are very distinct in operation and effect." 2 Scott v. Shepherd, 2 W. Bl. 892, 3 Wils. 403 (squib case); City of Atchisou v. King, 9 Kan. 550; Murdock v. Inhabitants of Warwick, 4 Gray (Mass.) 178; Lane v. Atlantic Works, 111 Mass. 136; Lake v. Milliken, 62 Me. 240; Marble v. City of Worcester, 4 Gray (Mass.) 395; McMahon v. Davidson, 12 Minn. 357 (Gil. 232); Nagel v. Railway Co., 75 Mo. 653; Benjamin v. Railway Co., 133 Mo. 274, 34 S. W. 590; Willis v. Publishing Co. (R. I.) 38 Atl. 947: Jensen v. The Joseph B. Thomas, 81 Fed. 578; Gould v. Schermer, 101 Iowa, 582, 70 N. W. 697; Union Pac. Ry. Co. v. Callaghan. 6 C. C. A. 205, 56 Fed. 988; Mexican Nat. Ry. Co. v. Mussette, 86 Tex. 708, 26 S. W. 1075; Stanton v. Railroad Co., 91 Ala. 382, 8 South. 798; Murdock v. Walker, 43 111. App. 590; Gibney v. State, 137 N. Y. 1, 33 N. E. 142; Howe v. Ohmart. 7 Ind. App. 32, 33 N. E. 466; East Tennessee, V. & G. Ry. Co. v. Hesters, 90 Ga. 11, 15 S. E. 828; Same v. Hall, 90 Ga. 17, 16 S. E. 91; Johnson v. Telephone Exch. Co., 48 Minn. 433, 51 N. W. 225; Chicago & N. W. Ry. Co. v. Prescott, 5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 19 and unattended, and is maliciously frightened by a stranger, and runs away. But for the intervening act he would not have run away, and the injury would not have occurred; yet it was the negligence of the driver in the first instance which made the runaway possible. This negligence has not been superseded or obliterated, and the driver is responsible for the injuries resulting. 3 If, however, the interven- ing, responsible cause be of such a nature that it would be unreason- able to expect a prudent man to anticipate its happening, he will not be responsible if damage results solely from the intervention. 4 The intervening cause may be culpable, intentional, or merely negligent. 5 Co-operating Cause. It is the universal rule that where an intelligent, wrongful cause co-operates or concurs with the act complained of to produce the in- jury, no matter what the degree of its causation may be, it in no way relieves the defendant from legal responsibility. 6 Thus, where de- 8 C. C. A. 109, 59 Fed. 237; Cairncross v. Village of Pewaukee, 86 Wis. 181, 56 N. W. G48; Union Pac. Ry. Co. v. Callaghan. 6 C. C. A. 205, 56 Fed. 988; Elder v. Coal Co., 157 Pa. St. 490, 27 Atl. 545, 33 Wkly. Notes Cas. 333; City of Albany v. Watervliet Turnpike & Railroad Co., 76 Hun, 136, 27 N. Y. Supp. 848; Mexican Nat. Ry. Co. v. Mussette, 86 Tex. 708, 26 S. W. 1075; Berg v. Railway Co., 70 Minn. 272, 73 N. W. 648; Meade v. Railway Co., 68 Mo. App. 92; Gardner v. Friederich, 25 App. Div. 521, 49 N. Y. Supp. 1077; Murdock v. Walker, 43 111. App. 590. 3 McCahill v. Kipp, 2 E. D. Smith (X. Y.) 413. * Parker v. City of Coboes, 10 Hun, 531 (excavation properly guarded, and barriers removed in the night by third party); Carter v. Towne, 103 Mass. 507; Davidson v. Nichols, 11 Allen (Mass.) 514. s Pennsylvania Co. v. Whitlock, 99 Ind. 16; Otten v. Cohen (City Ct. N. Y.) 1 N. Y. Supp. 430; Scheffer v. Railroad Co., 105 U. S. 249; Kitteringham v. Railway Co., 62 Iowa, 285, 17 N. W. 585; McClary v. Railroad Co., 3 Neb. 44; Louisville & N. R. Co. v. Guthrie, 10 Lea (Term.) 432; West Mahonoy Tp. v. Watson, 116 Pa. St. 344, 9 Atl. 430. s Martin v. Iron Works, 31 Minn. 407, 18 N. W. 109; Atkinson v. Trans- portation Co., 60 Wis. 141, 18 N. W. 7G4; Eaton v. Railroad Co., 11 Allen (Mass.) 500; Delaware, L. & W. R. Co. v. Salmon, 39 N. J. Law, 299; Hunt v. Railroad Co., 14 Mo. App. 160; Liming v. Railroad Co., 81 Iowa, 246, 47 X. W. 66; Johnson v. Telephone Exch. Co., 48 Minn. 433, 51 N. W. 225; Wilder v. Stanley, 65 Vt 145, 26 Atl. 189; McKenna v. Baessler, 86 Iowa, 197, 53 N. W. 103; Board of Com'rs of Boone Co. v. Mutchler. 137 Ind. 140, 36 N. E. 534; Postal Tel. Cable Co. v. Zopfi, 93 Tenn. 309, 24 S. W. 633; Id., 19 C. C. A. 605, 73 Fed. 009; Jung v. Starin, 12 Misc. Rep. 362, 33 N. Y. Supp. 20 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1 fendant negligently piled a quantity of smokestacks and other ma- terial near the track of a railroad company, and, a train coming along, one of the cars caught one of the stacks, pushed it against a tower, in which plaintiff was stationed in his employment of signaling trains, and he was injured, the defendant was held liable, although the railroad company may also have been negligent in running its trains; the danger of contact with the pile of smokestacks being evi- dent. 7 The court, in its opinion, says: "If piling the material near the track was a negligent act, it was negligence not only as to the railroad company, whose property and trains might be endangered thereby, but also as to all persons who might probably be put in danger from its probable consequences. * * * It was for the jury to say whether an ordinarily prudent person would have foreseen that so piling the material made liable to happen the very things that did happen, to wit, that a passing train should catch or push or carry tho material against the tower, so as to endanger any one stationed in it." 8 In a recent Wisconsin case, 9 however, where two fires united, either one of which would have destroyed plaintiff's property, a novel doctrine is laid down: "When a cause set in motion by negligence reaches to the result complained of in a line of responsible causation, and another cause, having no responsible origin, reaches it at the same time, so that what then takes place would happen as the effect of either cause, entirely regardless of the other, then the consequence ' cannot be said with any degree of certainty to relate to negligence as its antecedent." But the court concludes that, if each fire had been caused by a responsible person, the liability would have been joint and several, "because, whether the occurrence be intentional, actual, or constructive, each wrongdoer in effect adopts the conduct of his co- actor, and for the further reason that it is impossible to apportion the 650; Chicago, R. I. & P. Ry. Co. v. Sutton, 11 C. C. A. 251, 63 Fed. 394; South Bend Mfg. Co. v. Liphart, 12 Ind. App. 185, 39 N. E. 90S; Waller v. Railway Co., 59 Mo. App. 410, 1 Mo. App. Rep'r, 56; McClellan v. Railway Co., 58 Minn. 104, 59 N. W. 978; Gould v. Schermer, 101 Iowa, 582, 70 X. W. 697; Connelly v. Rist, 20 Misc. Rep. 31, 45 N. Y. Supp. 321. T Martin v. Iron Works, 31 Minn. 407, 18 N. W. 109. s Martin v. Iron Works, 31 Minn. 407, 18 N. W. 109. Cook v. Railway Co., 97 Wis. 624, 74 N. W. 561; Marvin v. Railway Co., 79 Wis. 140, 47 N. W. 1123; Pierce v. Michel, 1 Mo. App. Rep'r, 74; fcituue \\ Railroad Co., 171 Mass. 536, 51 N. E. 1. 5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 21 damage, or to say that either perpetrated any distinct injury that can be separated from the whole." Distinction between Cause and Condition. Cause implies a responsible human agent, capable of making a de- liberate choice. Take away this power of volition to influence his own conduct, and he becomes a mere automaton, another form of matter, a natural force or a condition. 10 It follows that, if choice and volition cannot be exercised by such an agent, neither blame nor civil liability should attach to his acts. Such irresponsible agents are: Insane persons, infants, 11 or those under duress. 12 They may be regarded as conditions only, or as states of nature; and a mere condition cannot divert or relieve a rational agent from responsi- bility. 13 "Inevitable Accident." "Act of God." "Inevitable accident" and "act of God" introduce no new elements into the consideration of this branch of the subject. They are merely convenient "catch-words" for designating a class of cases in which the conditions indicated by these phrases are factors, more or less potent, in determining liability. They are generally used of extraordinary exhibitions of natural forces, extraordinary either in point of the time of their occurrence or their severity; as of snow, rain, wind, thunder and lightning. It is sometimes said that the term "act of God," in legal phraseology, emphasizes the occurrence as opposed to human will; but we think this idea is misleading, and tends to con- vey the impression that when, in this class of cases, a man is released from responsibility, it is because his will and efforts must necessarily be unavailing when opposed to the Deity. All natural phenomena but emphasize the laws which they exemplify, and the observation of these laws in daily life is essential to the discharge of the most or- 10 Whart. Neg. 87. 11 Coombs v. Cordage Co., 102 Mass. 572; Chicago & A. R. Co. v. Gregory, 58 111. 220. 12 Johnson v. Railroad Co., 70 Pa. St. 357; Scott v. Hunter, 46 Pa. St. 192. is Salisbury v. Herchenroder, 106 Mass. 458; Woodward v. Aborn, 35 Me. 271; Jensen v. The Joseph B. Thomas, 81 Fed. 578; McFarlaue v. Town of Sullivan, 99 Wis. 361, 74 X. W. 559; City of Atchison v. King. 9 Kan. 550 (sidewalk defective, and coated with ice; the condition concurs with the neg- lijroiifp to produce in.iury. but the persons responsible for the condition of the road are liable); Dickinson v. Boyle, 17 Pick. (Mass.) 78. 22 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1 diuary duties. A man is presumed to intend the natural conse- quences of his acts, and "natural," in this sense, includes the opera- tion of cosmic law. But our knowledge of certain natural laws as those controlling meteorological conditions is at present limited, and our responsibility should cease when our well-considered acts con- duce to injury through a manifestation of natural law which is so un- usual as to lie practically outside the pale of experience. It is in this sense only that a so-called "act of God" is of importance in determin- ing the question of liability. Where defendant negligently left a wire connecting plaintiff's build- ing with another, which stood on elevated land, and on which was a pole about 25 feet high, and plaintiff's building was burned by reason of the lightning striking the pole, and being thence conducted along the wire, the court said: "The further argument is made that the stroke of lightning was the 'act of God,' for which no one is responsi- ble. Certainly a stroke of lightning is an 'act of God'; but that is not the question here presented, or, rather, another element i. e. the negligence of man is added to the question, which materially alters its scope. If I, owning a high mast or building, which I know is so situated as to be likely to be struck by lightning, construct an attractive path for the lightning to my neighbor's roof, so that his house is destroyed by a bolt which strikes my mast or building, shall I escape liability for my negligent or wrongful act by pleading that the lightning was the act of God? Certainly not. I invited the stroke of one of the most destructive powers of nature, and negligently turned its course to my neighbor's property. * * * The lightning stroke is in no greater degree the act of God than the usual freshets occurring in a river." 14 It follows that a natural occurrence, extraor- dinary either in point of season or severity, is available for purposes of defense in an action for negligence only in so far as its unusual character may serve to negative any presumption of negligence in the conduct of the defendant. For purposes of convenience the following propositions may be formulated: When an act, either negligent or nonnegligent, is followed by, but not connected with, an extraordinary natural occurrence or accident, i* Jacksou v. Telephone Co., 88 Wis. 243, 60 N. W. 430. 5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 23 which alone produces injury, the occurrence becomes the proximate cause, and, of course, no liability results to the original actor. 15 When a negligent or wrongful act is followed by an extraordinary natural occurrence, which connects the act with consequent injury, the wrongdoer is still liable; and this is true even if the original negli- gent act, without the concurrence of the natural phenomenon, would not in itself have produced harm. 16 is Wald v. Railroad Co., 162 111. 545, 44 N. E. 888 (Johnstown flood); In- ternational & G. N. R. Co. v. Hynes, 3 Tex. Civ. App. 20, 21 S. W. 622; Black v. Railroad Co., 30 Neb. 197, 46 N. W. 428; Blythe v. Railway Co., 15 Colo. 333, 25 Pac. 702; Smith v. Railway Co., 91 Ala. 455, 8 South. 754; Norfolk & W. R. Co. v. Marshall's Adni'r, 90 Va. 836, 20 S. E. 823. Horse takes fright, and runs away, and injury is caused by contact with defect in highway or bridge; town not liable. Davis v. Inhabitants of Dudley, 4 Allen (Mass.) 557, and Moulton v. Inhabitants of Sandford, 51 Me. 127. In Baltimore & O. R, Co. v. Sulphur Springs Independent School Dist, 96 Pa. St. 65, a defective culvert, not sufficient to carry off water in a flood. Green, J.: "If the act of God in this particular case was of such an overwhelming and destructive character as, by its own force, and independently of the particular negligence alleged or shown, produced the injury, there would be no liability, though there was some negligence in the maintenance of the particular structure." Nitro- Phosphate & O. C. Manure Co. v. London & St. K. Docks Co., 9 Ch. Div. 503; River Wear Com'rs v. Adamson, 2 App. Gas. 743; Blyth v. Waterworks Co., 11 Exch. 781. Withers v. Railway Co., 3 Hurl. & N. 969: Held, that the company was not bound to have constructed their embankment so as to meet such extraordinary floods. International & G. N. R. Co. v. Halloren, 53 Tex. 46; Salisbury v. Herchenroder, 106 Mass. 458. But it is not error to refuse to charge that defendant was not liable if his sign, whose fall injured plaintiff, fell by the act of God, the strongest testimony in support of that hypothesis being that it fell on a windy day in March. St. Louis, I. M. & S. Ry. Co. v. Hopkins, 54 Ark. 209, 15 S. W. 610. Where a building fell during a violent storm that wrecked other neighboring buildings, and there was evidence tend- ing to show that building was unsafe, held, that fall of building would be pri- marily attributed to storm, and burden rested on plaintiff to show unfitness of building. Turner v. Haar, 114 Mo. 335, 21 S. W. 737. is Palmer v. Inhabitants of Andover, 2 Cush. (Mass.) 600; Savannah, F. & W. Ry. Co. v. Commercial Guano Co., 103 Ga. 590, 30 S. E. 555; Rich- mond & D. R. Co. v. White, 88 Ga, 805, 15 S. E. 802; Adams Exp. Co. v. Jack- sou, 92 Tenn. 326, 21 S. W. 666; Lang v. Railroad Co., 154 Pa. St. 342. 26 Atl. 370; Gleeson v. Railway Co., 140 U. S. 435, 11 Sup. Ct. 859; Detzur v. Brewing Co. (Mich.) 77 N. W. 948; Tyler v. Ricamore, 87 Va. 466, 12 S. E. 799; Salisbury v. Herchenroder, 106 Mass. 458 (swinging sign, contrary to ordi- nance, blown down by severe gale); Woodward v. Aborn, 35 Me. 271; Lords 24 DEFINITION AND ESSENTIAL ELEMENTS. (Cil. 1 When an act is followed by and connected with an extraordinary natural occurrence, which alone produces injury, the character, unsea- sonableness, and degree of severity of the phenomenon may be con- sidered in determining whether the original act was negligent or not. 17 A person's legal duty does not obligate him to govern his con- duct with a view to guarding against every possible contingency. He must use the reasonable care of an ordinarily prudent person in similar circumstances, the circumstances being essential to the deter- mination of the requisite degree of care. Thus, although water con- . Bailiff-Jurats of Roniney Marsh v. Trinity House, L. R. 5 Exch. 204; Davis v. Garrett, 6 Bing. 716; Dickinson v. Boyle, 17 Pick. (Mass.) 78. Where the fall of a railroad bridge is caused by an act of God, as a cloudburst, an em- ploy6 cannot hold the company liable unless its negligence, to an extent amounting to want of ordinary care, contributed to the disaster. Rodgers v. Railroad Co., 67 Gal. 607, 8 Pac. 377. But where extraordinary occurrence con- curs with negligent delay of defendant, authorities do not agree as to liability. The following are against liability: Morrison v. Davis, 20 Pa. St. 171; Denny v. Railroad Co., 13 Gray (Mass.) 481; Daniels v. Ballantine, 23 Ohio St. 532; Du- buque Wood & Coal Ass'n v. City and County of Dubuque, 30 Iowa, 176 (com- pare this case with Scott v. Hunter, 46 Pa. St. 192, and Dickinson v. Boyle, 17 Pick. [Mass.] 78); McOlary v. Railroad Co., 3 Xeb. 44; Memphis & C. R. Co. v. Reeves, 10 Wall. 176; Hoadley v. Transportation Co., 115 Mass. 304. The following hold defendant liable where negligent delay concurs with extraordi- nary occurrence to produce injury: Republican Val. R. Co. v. Fink, 18 Xeb. 89, 24 X. W. 691 (in this case an improperly constructed embankment gave way in an unusual flood); Conflict v. Railway Co., 54 N. Y. 500; Michaels v. Railroad Co., 30 X. Y. 564. Where a wire was negligently placed, and at- tracted lightning, setting fire to a house, "act of God" was held no defense, Jackson v. Telephone Co., 88 Wis. 243, 60 X. W. 430. In Austin v. Steamboat Co., 43 X. Y. 75, the court says: "A party cannot avail himself of the defense of 'inevitable accident,' who, by his own negligence, gets into a position which renders the accident inevitable." Titcomb v. Railroad Co., 12 Allen (Mass.) 254. And where a load of cotton was delayed in railroad yard half an hour, when a break in machinery caused fire and loss of cotton, it was held that the breakage of machinery, coupled with the delay, constituted the proximate cause. Deming v. Storage Co., 90 Tenn. 306, 17 S. W. 89. 17 Where an unusual frost burst water pipes laid according to law. Blyth v. Waterworks Co., 11 Exch. 781. Fall of a railroad bridge, caused by a cloud- burst Rodgers v. Railroad Co., 67 Cal. 607, 8 Pac. 377; Withers v. Rail- road Co., 3 Hurl. & N. 969 (in this case the court held "the company was no? bound to have a line constructed so as to meet such extraordinary floods"); City of Clay Centre v. Jevons, 2 Kan. App. 568. 44 Pac. 745; Kincaid v. Rail- way Co., 1 Mo. App. Rep'r, 543, 62 Mo. App. 365. 5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 25 fined in a large body by a dam becomes a very dangerous instru- mentality, requiring the exercise of a very high degree of care, rea sonable prudence does not demand that the dam shall be so con- structed as to be absolutely safe, and to withstand the pressure of an unprecedented volume of water, caused by an extraordinary flood. 18 But the unusual character, unseasonableness, and severity of the flood are proper matters for consideration in determining whether the dam was constructed with reasonable care and skill. 19 Concurring Negligence. If the concurrent negligence of two or more persons results in in- jury to a third, he may maintain an action for damage against either or all. 20 A common illustration of this principle is found in the fre- quent suits brought against municipal corporations for damages caused by defects in the highway, which defective conditions were brought about by the acts of third persons. 21 In all cases where the negligence of two or more persons concurs to is Withers v. Railroad Co., 3 Hurl. & IS 7 . 969. i Id. 20 Eaton v. Railroad Co., 11 Allen (Mass.) 500; Lockhart v. Lichtenthaler. 46 Pa. St. 151; Congreve v. Morgan, 18 X. Y. 84; Ricker v. Freeman, 50 X. H. 420; Wheeler v. City of Worcester, 10 Allen (Mass.) 501; Chapman v. Railroad Co., 19 N. Y. 341; Barrett v. Railroad Co., 45 X. Y. 628; McMahon v. Davidson, 12 Minn. 357 (Gil. 232) ; Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62); Lynch v. Xurdin. 1 Q. B. 29; Illidge v. Goodwin, 5 Car. & P. 190; Me- Cahill v. Kipp, 2 E. D. Smith (X. Y.) 413; South Bend Mfg. Co. v. Liphart, 12 Ind. App. 185, 39 X. E. 908; Quill v. Telephone Co., 13 Misc. Rep. 435, 34 X. Y. Supp. 470; Waller v. Railway Co., 59 Mo. App. 410; McClellan v. Rail- road Co., 58 Minn. 104, 59 X. W. 978; Lake Shore & M. S. Ry. Co. v. Mc- Intosh, 140 Ind. 261, 38 X. E. 476; Connelly v. Rist, 20 Misc. Rep. 31, 45 X. Y. Supp. 321; Jung v. Starin, 12 Misc. Rep. 362, 33 X. Y. Supp. 650; Chicago, R. I. & P. Ry. Co. v. Sutton, 11 C. C. A. 251. 63 Fed. 394; Galveston, H. & S. A. Ry. Co. v. Croskell, 6 Tex. Civ. App. 160, 25 S. W. 486; Wolff Mfg. Co. v. Wilson, 46 111. App. 381; Wilder v. Stanley, 65 Vt 145, 26 Atl. 189; Kan- sas City, M. & B. R. Co. v. Burton, 97 Ala. 240, 12 South. 88; Gardner v. Friederich. 25 App. Div. 521, 49 X. Y. Supp. 1077; Pratt v. Railway Co., 107 Iowa, 287, 77 X. W. 1064. And see ante, "Co-operating Cause," p. 19. 21 Xorristown v. Moyer, 67 Pa. St. 355; City of Lowell v. Spaulding. 4 Cush. (Mass.) 277; Mayor, etc., of Baltimore v. Peudleton, 15 Md. 12; Wil- lard v. Xewbury, 22 Vt. 458; Hammond v. Town of Mukwa, 40 Wis. 35; Veazie v. Railroad Co., 49 Me. 119; Welle Dine v. Inhabitants of Leeds, 51 Me. 313; Currier v. Inhabitants of Lowell, 16 Pick. (Mass.) 170; Preutiss v. Bos- 26 DEFINITION' AND ESSENTIAL ELEMENTS. (Cll. 1 produce the injury complained of, the law disregards the relative importance of the different acts as affecting the result, 22 although, if the injuries resulting from the distinct acts of negligence are separa- ble, the damage may be apportioned correspondingly. 23 Thus, where the steamboat of defendant negligently set fire to piles of shavings which had been allowed to accumulate about the planing mill of B., from which the fire spread to the planing mill, and thence, after de- stroying many intervening houses, to the property of plaintiff, situate nearly a mile distant from the planing mill, it appeared that the owner of the planing mill had been negligent in allowing the shavings and sawdust to accumulate about his mill, and it was claimed by defend- ant that this negligence of the mill owner was such an intervening cause between the negligence of defendant and the final destruction of plaintiff's house that its destruction must be, in law, attributed to such intervening cause. In disposing of this point the court says: "Whether we consider the negligence of the owners of the planing mill as an interposition before or concurrently with the negligence of the defendant in producing the damage, it is no defense to the plain- tiff's action. * * * In one sense the negligence of the owner of the planing mill was concurrent with the negligence of the defendant. The negligence of the owner of the mill was a continuing negligence ; it was present and acting at the time of the negligence of the defend- ant; it aided in kindling the fire and spreading it to the mill, and from that to the surrounding buildings." 24 ton, 112 Mass. 43; Elliot v. Concord, 27 N. H. 204; Town of Centerville v. Woods, 57 Ind. 192; Thuringer v. Railroad Co., 82 Hun, 33, 31 N. Y. Supp. 419. 2 2 Hunt v. Railroad Co., 14 Mo. App. 160; Eaton v. Railroad Co., 11 Allen (Mass.) 500; Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. 764; Mar- tin v. Iron Works, 31 Minn. 407, 18 X. W. 109; Delaware, L. & W. R. Co. v. Salmon, 39 N. J. Law, 299; Chicago, R. I. & P. Ry. Co. v. Sutton, 11 C. C. A. 251, 63 Fed. 394; Galveston, H. & S. A. Ry. Co. v. Croskell, 6 Tex. Civ. App, 160, 25 S. W. 486. 23 Nitro-Phosphate & O. C. Manure Co. v. London & St K. Docks Co., 9 Ch. Div. 503. In this case the apportionment was made where the injury was caused in part by negligence of defendant and in part by act of God. 2* Atkinson v. Transportation Co., 60 Wis. 141, 18 N. W. 764. And see generally on same point: Bartlett v. Gaslight Co., 117 Mass. 533; Ricker v. Freeman, 50 X. H. 420; Lake v. Milliken, 62 Me. 240; Small v. Railroad Co., 55 Iowa, 582, 18 N. W. 437; Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62); Pastene v. Adams, 49 Cal. 87; Lane v. Atlantic Works, 107 Mass. 104; Pow- 5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 27 Degrees of Care. Under the Roman law, negligence or "culpa" was divided into three distinct classes: "Culpa levis," "culpa," and "culpa lata"; and these three terms were respectively co-ordinated with the duty whose breach was under consideration. If the duty demanded was of an imperative nature, its breach was determined by an act or omission involving only slight negligence, or culpa levis. If of an ordinary kind, demanding only normal or average prudence, very slight negli- gence was insufficient to establish liability. The act or omission must involve more than culpa levis; it must involve culpa; while a breach of duty of the lightest nature must be attended with culpa lata, or a flagrant disregard of the rights of the aggrieved party. For the purpose of further classifying the kinds of duty whose breach and attendant negligence was under consideration, the duties were divided into three groups: When the transaction was for the benefit of (1) the performer, (2) of both parties, and (3) for the per- formee only. Under the first division, where the transaction was carrried on for the benefit of the performer, the other party being only in the capacity of an auxiliary, and not sharing in the antici- pated profit or advantage, the policy of their law decreed that the per- former should take the greatest possible care not to injure the other party, and was accordingly held accountable for culpa levis. Under the second division, where both parties were equally interested in the prosecution of the work, and would share in the result, it was considered that the performer had discharged his duty if he used ordinary care, and was, therefore, held responsible for culpa only. In the third division, where the work was for the exclusive benefit of the third party, its prosecution promising no advantage to the performer, slight care w r as held to satisfy the requirements of the ell v. Deveney, 3 Cush. (Mass.) 300; Weick v. Lander, 75 111. 93; Delaware, L. & W. R. Co. v. Salmon, 39 N. J. Law, 309; Orandall v. Transportation Co., 16 Fed. 75; Stetler v. Railway Co., 4*5 Wis. 497, 1 N. W. 112; Oil City Gas Co. v. Robinson, 99 Pa. St. 1; Lynch v. Xurdin, 1 Q. B. 29; Pierce v. Michel, 1 Mo. App. Rep'r, 74; Benzing v. Steinway, 101 N. Y. 547, 5 N. E. 449; Phillips v. Railroad Co., 127 N. Y. 657, 27 N. E. 978; St. Louis Bridge Co. v. Miller, 138 111. 465, 28 X. E. 1091; Ry lands v. Fletcher, L. R. 3 H. L. 330; Child v. Hearn, L. R, 9 Exch. 183; Illidge v. Goodwin, 5 Car. & P. 190; Davis v. Garrett. 6 Bing. 716; Greenland v. Chaplin, 5 Exch. 243. 28 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1 relation, and the beneficiary was required to show gross negligence, or culpa lata, to entitle him to recover. The most noted jurists of both ancient and modern times have devoted much time and ability to theoretical discussions of the degrees of care, or its co-ordinate, negligence, recognized by courts of law. Of all recent discussions of the doctrine of degree of care as associated with negligence that of Dr. Wharton is easily the most scholarly and exhaustive, and to this eminent writer is cer- tainly due the credit of clearing up much of the uncertainty, and removing many of the errors, that have hung about the modern acceptation of the old Roman doctrine. 28 It is not within the scope of this work to devote time and space to the consideration of theories, however interesting, except in so far as such consideration may seem necessary to a clear understand- ing of the principles involved as they are found in the practical treatment of cases of negligence by our courts to-day. It seems, however, that we could not properly proceed to the practical con- sideration of the subject without calling attention to one of the conclusions reached by Dr. Wharton, and in which we have the temerity to differ from that learned jurist. He concludes, after an ex- haustive discussion of the matter, involving deep research, that under the Aquilian law but two degrees of care or negligence were rec- ognized, and that the conditions existing to-day are not so altered as to require the addition and recognition of a third degree by our courts. The two degrees of care which he recognizes are: (1) The degree of care to be required of one who is not, and does not profess to be, a good man of business, or an expert in the affairs under consideration; (2) the degree of care or prudence to be ex- ercised by and required of the man who actually has, or professes to have, expert knowledge of the particular kind of business in- volved. For purposes of distinction he would term the degree of care for which the first class should be held responsible "slicrht care" ; that for which the second class should be held responsible "ordinary care." By this system of grouping he would not hold any person or class of persons responsible for the exercise of extreme, or even great, care, his test of degree in the highest class being the kind of care used by an expert in that particular kind of business; and 20 Whart. Neg. 27 et seq. 5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 29 this, in turn, would be measured by what is customary among his compeers in the same avocation or trade. With all due deference to the ability of this writer, it seems to us that the insufficiency of this limited and exclusive division must become apparent in con- sidering the development of the law of negligence within the pres- ent century in one line of cases, that of the liability of common carriers for injuries inflicted on passengers. It may be taken as the settled law of this country, at least, that a common carrier of persons is responsible for an injury arising through any flaw or defect in the appliances used, whose existence could have been foreseen or detected by any known test. 26 In other words, the settled law requires the utmost possible degree of care known to human skill and intelligence. To this, in defense of Dr. Wharton's division, it may be replied that this extreme de- gree of care is nothing more than "ordinary" and "usual" among experts engaged in constructing and operating railroads and steam- boats. But it is not necessary to go back to any remote period in the history of this class of decisions to ascertain that it is the decisions of the courts themselves that have raised the degree of skill and care to its present supreme elevation, and that the court* in making these same decisions, were urged by consideration for the safety of the public to go far beyond what was then customary among experts in this line of business. Inventions to prevent and tests to disclose latent defects in castings were in existence, and their employment was required by the courts, long before they were in such general use as to authorize its description by the word "customary." This point is strongly and tersely stated by one of the ablest works on this subject: 27 "The modern demand for the ex- ercise of what is often called 'the utmost care' is largely due to the essentially modern regard for human life and the development of applied science. It is only within a very recent period that life has been considered more sacred than property, and, side by side 26 Carroll v. Railroad Co., 58 X. Y. 126; Ingalls v. Bills, 9 Mete. (Mass.> 1; Caldwell v. Steamboat Co., 47 N. Y. 282; Meier v. Railroad Co., 64 Pa. St. 225; Hegenian v. Railroad Corp., 13 N. Y. 9; Pennsylvania Co. v. Roy, 102 U. S, 451; Palmer v. Canal Co., 120 N. Y. 170, 24 X. E. 302; Texas & P. Ry. Co. v. Hamilton, 66 Tex. 92, 17 S. W. 406; Louisville, N. A. & C. Ry. Co. v. Sny- der, 117 Ind. 435. 20 X. E. 284. 27 Shear. &. II. Xeg. (4tli Ed.) 46. 30 DEFINITION AND ESSENTIAL ELEMENTS. (Ch. 1 with the growth of the feeling, there has been a wonderful exten- sion of human powers by means of new inventions. In ancient times it would have seemed preposterous to claim a greater degree of care for the preservation of the life of a slave than for the statue of an emperor, and it would have seemed the height of tyranny to hold any man of business to a degree of care which no one in that business had ever displayed, and to require him to do that which every one in the business believed to be impossible. But in our own time legislatures have absolutely forbidden gas companies to cast their refuse into rivers, although these companies unanimously de- clared with entire sincerity that they could not conduct their busi- ness at all in any other way. So legislatures have compelled man- ufacturers to consume their own smoke, although none of them knew how to do it. And the result in these and other cases has fully vindicated the wisdom of the stern legislation. When the factories were compelled to consume their own smoke, their own- ers paid inventors to devise a method of doing so. When gas com- panies were threatened with ruin if they could not dispose of their refuse, they paid the cost of experiments which resulted in the in- vention of aniline colors, and increased the wealth of the gas com- panies themselves, while putting an end to an intolerable nuisance, which they had always declared to be unavoidable. In the light of such experiences the courts are justified in holding those who take charge of the lives of human beings to any degree of care which is not incompatible with the transaction of business, espe- cially when its practicability has been demonstrated by its adop- tion in that business by the most careful class of persons." 28 It must appear on the most casual consideration that in deter- mining the liability of carriers for injuries to passengers the courts have required a degree of care certainly not usual among experts in the carrying business, and in many instances without precedent. 29 It appears, then, that at least three distinct degrees of care must be recognized, viz.: 28 Fleet v. Hollenkemp, 13 B. MOD. (Ky.) 219. "Extraordinary diligence is required as to passengers, and the company is responsible for the utmost care and watchfulness, and answerable for the smallest negligence." Sandham v. Railroad Co., 38 Iowa, at page 90; McGrew v. Stone, 53 Pa. St. 436. 28 Cf. "Carriers of Passengers," post, pp. 175-213. 5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 31 Same Slight Care. Such as is required in the transaction of daily duties by the average person, and when the obligor has not assumed unusual responsibilities by voluntary action, 30 as by the purchase of a dan- gerous animal, the damming up of water, or the confinement of steam, or the use of fire. Within this class would fall the degree of care required of a person driving on the public road and observ- ing the law of the road, excavating on his own premises, 31 owning a ruinous and deserted house, 32 or of a bailee when the bailment is for the sole benefit of the bailor. 88 Same Ordinary Care. The care proportionate to the responsibility assumed, as carry- ing a loaded gun; 34 where a bailment is for the mutual advantage of the parties, as the hirer of a horse, who is liable for ordinary care and skill in driving him, 35 or one hired to drive a horse. 36 The degree of care requisite in operating trains within municipal limits to avoid injury to persons at highway crossings falls within this class. Statutory signals should be given; gates operated, if required; engineers and trainmen at their posts, closely observant of the track and crossings; the regulation rate of speed observed; and in fact every precaution taken commensurate with the lia- bility to injure members of the public incident to running a train of cars through a city or village. 37 In the construction of a dam so Earing v. Lansingh, 7 Wend. (N. Y.) 185; Daniels v. Clegg, 28 Mich. 32. si Gillespie v. McGowan, 100 Pa, St. 144; Lorenzo v. Wirth, 170 Mass. 596, 49 X. E. 1010; Ratte v. Dawson, 50 Minn. 450, 52 N. W. 965; Ennis v. My- ers, 29 App. Div. 382, 51 N. Y. Supp. 550; Dobbins v. Railway Co., 91 Tex. 60, 41 S. W. 62; Gorr v. Mittlestaedt, 96 Wis. 296, 71 N. W. 656. 32 Lary v. Railroad Co., 78 Ind. 323. 33 Coggs v. Bernard, 2 Ld. Raym. 909; Whitney v. Lee, 8 Mete. (Mass.) 91; Spooner v. Mattoon, 40 Vt 300. ** Tally v. Ayres. 3 Sneed (Tenn.) 677. 35 Mooers v. Larry, 15 Gray (Mass.) 451; Purnell v. Minor, 49 Neb. 555, 68 X. W. 942. se Newton v. Pope, 1 Cow. (X. Y.) 109. 37 Frick v. Railway Co., 75 Mo. 595; Illinois Cent R. Co. v. McCalip (Miss.) 25 South. 166; Baker v. Railroad Co. (Mo. Sup.) 48 S. W. 838; San Antonio & A. P. Ry. Co. v. Peterson (Tex. Civ. App.) 49 S. W. 924; Lake Shore & M. S. Ry. Co. v. Boyts, 16 Ind. App. 640, 45 X. E. 812; Stevens v. Railway Co., 67 Mo. App. 356; Washington S. Ry. Co. v. Lacey, 94 Va. 460, 2G S. E. 32 DEFINITION AND ESSENTIAL ELEMP:NTS. (Oh. 1 or reservoir the work should be done in such a manner as a dis- creet and prudent man understanding the circumstances and the liability to cause damage to adjacent lands would have performed it, and it is not necessary that it should be built in the strongest and most skillful way. 38 Same Great Care. That degree of attention and prudence exercised by the class of persons possessing the highest qualifications of skill and diligence in the line of business under consideration. It is not the care be- stowed on the matter in hand by the most skilled member of the craft or occupation, but by the class composed of the most skilled members. In this age of wonderful scientific progress and inven- tion it would be unreasonable that liability should attach for fail- ure to employ some newly-discovered device or process scarcely past the experimental stage, and whose efficacy and practicability had been determined and adopted by only one person. How gen eral the use must be in order to establish a class must be deter- mined by the circumstances of each case, the nature of the busi- ness under discussion, and the number of persons engaged in its prosecution. To illustrate: A practical test for discovering flaws in iron castings would be of such general and wide-spread utility, 834; Cookson v. Railway Co., 179 Pa. St. 184, 36 Atl. 194; Iron Mountain R. Co. v. Dies, 98 Tenn. 655, 41 S. W. 860; Walter v. Railroad Co., 6 App. D. C. 20; Pinney v. Railway Co., 71 Mo. App. 577; Cleveland, C., C. & St. L, Ry. Co. v. Doerr, 41 111. App. 530; Johnson v. Railway Co., 2 Tex. Civ. App. 139, 21 S. W. 274; Alabama G. S. R. Co. v. Anderson, 109 Ala. 299, 19 South. 516;' Chicago, M. & St. P. Ry. Co. v. Walsh, 157 111. 672, 41 N. E. 900; Den ver & R. G. R. Co. v. Ryan, 17 Colo. 98, 28 Pac. 79. ss Hoffman v. Water Co., 10 Cal. 413; Wolf v. Water Co., Id. 541. See generally, as defining "ordinary care," Chicago City Ry. Co. v. Dinsmore, 162 111. 658, 44 N. E. 887; Paris, M. & S. P. Ry. Co. v. Nesbitt (Tex. Civ. App.) 38 S. W. 243; Graham v. Town of Oxford, 105 Iowa, 705, 75 N. W. 473; New Orleans & X. E. R. Co. v. McEwen & Murray, 49 La. Ann. 1184, 22 South. 675; Brown v. Bank (N. H.) 39 Atl. 336; Beck v. Hood, 185 Pa. St. 32, 39 Atl. 842; Houston & T. O. R. Co. v. Sgalinski (Tex. Civ. App.) 46 S. W. 113; Heunesey v. Railroad Co., 99 Wis. 109, 74 N. W. 554; Baltimore & O. S. W. Ry. Co. v. Faith, 175 111. 58, 51 N. E. 807; Waco Artesian Water Co. v. Cau- ble (Tex. Civ. App.) 47 S. W. 538; Chicago, St. P. & K. C. R. Co. v. Ryan, 62 111. App. 264; Bertha Zinc Co. v. Martin's Adm'r, 93 Va. 791, 22 S. E. 869; Olwell v. Railway Co., 92 Wis. 330, 66 N. W. 362. 5) EFFICIENT, INTERVENING, OR CO-OPERATING CAUSE. 33 and the opportunity for its employment so unlimited, that its adop- tion by a comparatively large number of founders would be essen- tial to the establishment of a class within our definition. On the other hand, locomotion by balloons is unusual, and the adoption by three, or even two, aeronauts of a new invention for steering them, might properly be held to be usage by a class. Test of Requisite Care. It follows, then, that to determine the degree of care requisite in each case the criterion must be the kind of care usually exercised by competent, prudent persons in similar transactions, in suffi- cient numbers to establish a class. No Degrees of Negligence. It follows, as a corollary of what has been said, regarding the degrees of care required by law, that theoretically there can be no degrees of negligence. Failure to observe the kind of care requisite in any set of circumstances is negligence for which, other conditions being present, recovery may be had according to the extent of the injury suffered; conversely, any case of alleged negligence is directly referable for test to the kind of duty violated, and the degree of care lacking in the violation. As a matter of cus- tom, a habit not easily thrown off, it is probable that the terms "slight negligence," "ordinary negligence," and "gross negligence" will continue to stand on the lucus a non principle, for something which they do not represent, until such time as the courts shall break away from the meaningless and misleading phraseology. BAR.XEG.--3 34 CONTRIBUTORY NEGLIGENCE. (Ch. 2 CHAPTER H. CONTRIBUTORY NEGLIGENCE. 6. Definition. 7. General Rule. 8. Proximate Cause. 9. Degree of Care. 10. Terror Caused by Real or Fancied Peril. 11. Knowledge of Danger. 12. Assumption of Risk. 13. Anticipation of Negligence. 14. Legal Status of Plaintiff as Affecting His Contributory Negligence. 15. Plaintiff as Trespasser or Licensee. 16. The Relative Time of Plaintiff's Negligence as Affecting His Right to Recover. 17. Plaintiff's Negligence after the Accident. 18-19. Contributory Negligence of Third Persons. 20. Master and Servant or Principal and Agent. 21. Shipper and Carrier of Goods. 22-23. Passenger and Common Carrier. 24. Negligence of Husband Imputed to Wife. 25-27. Imputed Negligence. 28. Degree of Care Required of a Child. 29. Lunatics and Idiots. 30. Physical Condition an Element of Contributory Negligence. 31. Intoxication. 32. Comparative Negligence. 33. Evidence Burden of Proof. 34. Pleading Contributory Negligence. 35. Contributory Negligence as Question of Fact. DEFINITION. 6. Contributory negligence is such negligence on the part of the plaintiff as to proximately cause the injury complained of, superseding the prior "wrongful con- duct of the defendant, and rendering him incapable of averting its consequences. The intervening or concurrent negligent act of any third party, which in any degree assists or promotes the happening of the injury, 7) GENERAL RULE. 35 is, properly speaking, contributory to such result; but the term "con- tributory negligence" has, by common consent and usage, been lim- ited in its application to the negligent acts of the person who seeks to recover damages for the injury. GENERAL RULE. 7. Plaintiff cannot maintain an action for injuries caused by the negligence of defendant, if his own neg- ligence contributed in any degree to produce the re- sult complained of, unless (a) The defendant, having knowledge of plaintiff's neg- ligence, fails to use ordinary care to avert the con- sequences, or unless (b) The contributory negligence of plaintiff is caused by sudden peril and terror in the situation wherein he has been placed by defendant's negligence. The most satisfactory reason for this doctrine seems to be that the causal connection between defendant's negligent act and the injury is broken by the intervention of plaintiff's independent volition. 1 WiUful Injury. In considering the doctrine of contributory negligence, it should be borne in mind that it has no application in cases of willful injury, but is confined strictly to negligence under the definition. Contrib- utory negligence is not a defense in an action for a willful tort. 2 But, 7. i Tuff v. Warruan, 5 C. B. (X. S.) 573; Witherley v. Canal Co., 12 C. B. (X. S.) 2, 8; Ellis v. Railroad Co., 2 Hurl. & N. 424; Martin v. Railroad Co., 16 C. B. 179; Bridge v. Railroad Co., 3 Mees. & W. 244. Approved in Davies v. Mann, 10 Mees. & W. 546. Cited and explained in Dowell v. Navigation Co., 5 El. & Bl. 195; Holden v. Coke Co., 3 C. B. 1; Baltimore & P. R. Co. v. Jones, 95 U. S. 439; Tan Lien v. Manufacturing Co., 14 Abb. Prac. (N. S.) 74; Ince v. Ferry Co., 100 Mass. 149. 2 Wallace v. Express Co., 134 Mass. 95; Steinmetz v. Kelly, 72 Ind. 442; Birge v. Gardner, 19 Conn. 507; Williams v. Railroad Co., 2 Mich. 259; Cin- cinnati, H. & D. R. Co. v. Waterson, 4 Ohio St 425; Bunting v. Railroad Co., 16 Xev. 277; Tonawanda R. Co. v. Munger, 5 Denio (N. Y.) 255; Sanford v. Railroad Co., 23 X. Y. 343. Where defendant's act was wanton and reckless, failure of plaintiff to use ordinary care will not defeat recovery. Central Railroad & Banking Co. v. Newman, 94 Ga. 560, 21 S. E. 219; Kansas City, 36 CONTRIBUTORY NEGLIGENCE. (Cll. 2 if the action is founded on inadvertent misfeasance or nonfeasance, contributory negligence will prevent recovery, regardless of the de- gree of negligence involved in defendant's conduct. 3 PROXIMATE CAUSE. 8. To establish the defense of contributory negligence, the causal connection between plaintiff's negligence and injury must be shown. It is not enough that plaintiff's conduct is marked by the absence of even the slightest care. If it does not contribute to produce the in- jury, it is immaterial. 1 What has been already said regarding proximate cause is equally applicable where the negligence in question is contributory. 2 The limitation imposed by the word "contributory," however, indicates that the negligence of plaintiff need not in fact must not be the sole cause. Courts have said that the negligence of plaintiff must "substantial- ly" contribute to the injury, 3 must be an "efficient" or "essential" M. & B. R. Co. v. Lackey, 114 Ala. 152, 21 South. 444; Lake Shore & M. S. Ry. Co. v. Bodemer, 139 111. 596, 29 N. E. 692; Louisville Safety- Vault & Trust Co. v. Louisville & N. R. Co. (Ky.) 17 S. W. 567. 3 Catawissa R. Co. v. Armstrong, 49 Pa. St. 186; Grippen v. Railroad Co. r 40 N. Y. 34; Cunningham v. Lyness, 22 Wis. 236; Mangam y. Railroad Co., 36 Barb. 230; Carroll v. Railroad Co., 13 Minn. 30 (Gil. 18); Griggs v. Fleck- enstein, 14 Minn. 81 (Gil. 62); Neal v. Gillett, 23 Conn. 437; Rowen v. Rail- road Co., 59 Conn. 364, 21 Atl. 1073; Ruter v. Foy, 46 Iowa, 132; Carrington v. Railroad Co., 88 Ala. 472, 6 South. 910; Florida Southern Ry. Co. v. Hirst, 30 Fla. 1, 11 South. 506; International & G. N. R. Co. v. Kuehn, 11 Tex. Civ. App. 21, 31 S. W. 322. 8. i Tendency to disease, increasing damages, defendant still liable. Mc- Namara v. Village of Clintonville, 62 Wis. 207, 22 N. W. 472. Ox negligently killed by defendant, value of hide and meat, which plaintiff might have used, may be deducted from the damages. Memphis & C. R. Co. v. Hembree, 84 Ala. 182, 4 South. 392; Georgia Pac. R. Co. v. Fullerton, 79 Ala. 298. The vital point is, did the negligence of plaintiff contribute to the happening of the injury, not to its increase? Sills v. Brown, 9 Car. & P. 601, 606; Stebbins v. Railroad Co., 54 Vt. 464. 2 See ante, pp. 9-17. s Daley v. Railroad Co., 26 Conn. 591; Montgomery Gaslight Co. v. Mont- gomery & E. Ry. Co., 86 Ala. 372, 5 South. 735; West v. Martin, 31 Mo. 375. 8) PROXIMATE CAUSE. 37 cause; * that, although plaintiff was negligent, if ordinary care on his part would have availed nothing against defendant's wrong con- duct, he mav still recover. 5 But to attempt to define the essential degree of intimacy between plaintiff's negligence and injury is un- profitable and dangerous. In Monongahela City v. Fischer 6 the court says: "The doctrine of this court has always been that, if the negli- gence of the party contributed in any degree to the injury, he can- not recover." And it is now well settled that, if the negligence of plaintiff contributed in any degree to cause the injury complained of, he cannot recover, 7 unless it further appears that the defendant might, by the exercise of reasonable care and prudence, have avoided * Sullivan's Adm'r v. Bridge Co., 9 Bush (Ky.) 81. 5 Village of Orleans v. Perry, 24 Neb. 831, 40 N. W. 417; Eadley v. Rail- road Co., L. R. 9 Exch. 71. e 111 Pa. St. 9, 2 Atl. 87. See, also, Oil City Fuel-Supply Co. v. Boundy, 122 Pa. St. 449, 15 Atl. 865; Mattimore v. City of Erie, 144 Pa. St. 14, 22 Atl. 817; Banning v. Railroad Co., 89 Iowa, 74, 56 X. W. 277; Kennard v. Burton, 25 Me. 39. 7 Crandall v. Transportation Co., 11 Biss. 516, 16 Fed. 75; Munger v. Rail- road Co., 4 N. Y. 349; Willard v. Pinard, 44 Vt. 34; Oil City Fuel-Supply Co. v. Boundy, 122 Pa. St. 449, 15 Atl. 865; Monongahela City v. Fischer, 111 Pa. St. 9, 2 Atl. 87; Murphy v. Deane, 101 Mass. 455; Coombs v. Purring- ton, 42 Me. 332; Hearne v. Railroad Co., 50 Cal. 482; Flemming v. Railroad Co., 49 Cal. 253; Cremer v. Town of Portland, 36 Wis. 92; Laicher v. Rail- road Co., 28 La. Ann. 320; Broadwell v. Swigert, 7 B. Mon. (Ky.) 39; Cata- wissa R. Co. v. Armstrong, 49 Pa. St. 186; Stiles v. Geesey, 71 Pa. St. 439; Claus v. Steamship Co., 32 C. C. A. 282, 89 Fed. 646; Maxwell v. Railway Co., 1 Marv. 199, 40 Atl. 945; United States Exp. Co. v. McCluskey, 77 111. App. 56; Guthrie v. Railway Co., 51 Neb. 746, 71 N. W. 722; Briscoe v. Rail- way Co., 103 Ga. 224, 28 S. E. 638; South Chicago City Ry. Co. v. Adam- son, 69 111. App. 110; Atwood v. Railway Co., 91 Me. 399, 40 Atl. 67; O'Con- nor v. Ditch Co., 17 Nev. 245, 30 Pac. 882; Jones v. Railroad Co., 107 Ala. 400, 18 South. 30; Payne v. Railroad Co., 129 Mo. 405, 31 S. W. 885; Lack v. Seward, 4 Car. & P. 106; Luxford v. Large, 5 Car. & P. 421; Woolf v. Beard, 8 Car. & P. 373; Vennall v. Garner, 1 Cromp. & M. 21; Dowell v. Navigation Co., 5 El. & Bl. 195. And this is true although the original negli- gence of defendant involved the violation of an ordinance or statute. Payne v. Railroad Co., 129 Mo. 405, 31 S. W. 885. But see Alaska Treadwell Gold- Min. Co. v. Whelan, 12 C. C. A. 225, 64 Fed. 462, where it was held that gross negligence of defendant may excuse slight contributory negligence in the plaintiff. Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. G53. 38 CONTRIBUTORY NEGLIGENCE. (Ch. 2 the consequences of the injured "party's negligence. 8 In the language of Lamar, J., if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured, an action for the injury cannot be maintained unless it fur- ther appears that the defendant might, by the exercise of ordinary care and prudence, have avoided the consequences of the injured party's negligence. 9 DEGREE OF CARE. 9. The plaintiff is obligated to that degree of care which an ordinarily prudent person of similar intelligence would exercise in the circumstances. In determining whether the conduct of plaintiff was negligent in the circumstances, the test is similar to that applied to the conduct of the defendant in determining his primary liability, although in the case of the former the law does not exact so high a degree of dil- igence and care. It is certain that the plaintiff must use at least ordinary care to avoid the injurious consequences of defendant's mis- conduct. 1 It is impossible to define the duty of plaintiff by any lesser s Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679; Clark v. Railroad Co., 109 N. C. 430, 14 S. E. 43; Spencer v. Railroad Co., 29 Iowa, 55; Newport News & M. V. Co. v. Howe, 3 C. C. A. 121, 52 Fed. 303; Morris v. Railroad Co., 45 Iowa, 29; Deeds v. Railroad Co., 69 Iowa, 164, 28 N. W. 488; Czezewzka v. Railway Co., 121 Mo. 201, 25 S. W. 911; McKean v. Railroad Co., 55 Iowa, 192, 7 N. W. 505; O'Rourke v. Railroad Co., 44 Iowa, 526; Den- ver & B. P. Rapid-Transit Co. v. Dwyer, 20 Colo. 132, 36 Pac. 1106; Nashua Iron & Steel Co. v. Worcester & N. R. Co., 62 N. H. 159; Indiana Stone Co, v. Stewart, 7 Ind. App. 563, 34 N. E. 1019; Tobin v. Cable Co. (Cal.) 34 Pac. 124. Also cf. Holmes v. Railway Co., 97 Cal. 161, 31 Pac. 834, with Overby v. Railway Co., 37 W. Va. 524, 16 S. E. 813; Pierce v. Steamship Co., 153 Mass. 87, 26 N. E. 415; Evarts v. Railroad Co., 56 Minn. 141, 57 N. W. 459; Keefe v. Railroad Co., 92 Iowa, 182, 60 N. W. 503; Little v. Railway Co., 88- Wis. 402, 60 N. W. 705; Texas & P. Ry. Co. v. Lively, 14 Tex. Civ. App. 554, 38 S. W. 370; Baltimore City Pass. Ry. Co. v. Cooney, 87 Md. 261, 39 Atl. 859; Thompson v. Rapid-Transit Co., 16 Utah, 281, 52 Pac. 92; Omaha St. Ry. Co. v. Martin, 48 Neb. 65, 66 N. W. 1007; Styles v. Railroad Co., 118 N. C. 1084, 24 S. E. 740. Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679. 9. i In Patrick v. Pote, 117 Mass. 297, Devens, J., says: "The plaintiff, in order to show that he was in the exercise of due care, must prove that he 9) DEGREE OF CARE. 39 latitude than that measured by this word "ordinary" in its common significance. Very slight care may not be, and generally is not, suffi- cient to exempt him from the charge of contributory negligence; neither is his failure to exercise unusual care a defense to his claim for damages. 2 Xo rule sufficiently elastic to meet the requirements of the varying circumstances which influence the conduct of those menaced by sud- den danger can be formulated. The "prudent man," so often set up as a model and standard of comparison, is phlegmatic, conservative, and far-sighted; but he acquires these and other excellent attributes in circumstances which admit of mature deliberation. What his con- duct would be if the opportunity for such deliberation were lacking, is purely a matter of conjecture. All definitions of ordinary or prop- er care, as affecting contributory negligence, are misleading and un- satisfactory. The proper degree must be determined in the light of the circumstances as disclosed by the evidence in each case; the fact whether the right degree has been used being usually for the jury, un- der the general instructions of the court. 3 bad acted as men of ordinary prudence, exercising this faculty, and pos- sessed of sufficient sense and capacity to act intelligently, would have acted under similar circumstances." Monger v. Kailroad Co., 4 N. Y. 349; Priest v. Nichols, 116 Mass. 401; Kailroad Co. v. Jones, 95 U. S. 439; Peverly v. City of Boston, 136 Mass. 366; Gannon v. Inhabitants of Bangor, 38 Me. 443; Brown v. Railway Co., 22 Minn. 165; Salem-Bedford Stone Co. v. O'Brien, 12 Ind. App. 217, 40 X. E. 430; Chicago & E. I. R. Co. v. Roberts, 44 111. App. 179; Mattimore v. City of Erie, 144 Pa. St. 14, 22 Atl. 817. 2 Lyons v. Railroad Co., 57 N. Y. 489; Mark v. Bridge Co., 103 N. Y. 28, 8 N. E. 243; Chicago & N. Ry. Co. v. Donahue, 75 111. 106; Xewbold v. Mead, 57 Pa. St. 487; Davies v. Mann, 10 Mees. & "W. 546; Quirk v. Elevator Co.. 126 Mo. 279. 28 S. W. 10SO. In Chase v. Railroad Co., 24 Barb. (N. Y.) 273, it was held that "ordinary" care and "reasonable" care were not synonymous, and that "reasonable care" was required. The same degree of diligence is not required of a person about to cross a public street to avoid contact with vehicles as would be required at a railroad crossing. Eaton v. Cripps, 94 Iowa, 176, 62 N. W. 687; St. Louis S. W. Ry. Co. v. Rice, 9 Tex. Civ. App. 509, 29 S. W. 525. s McGrath v. Railroad Co., 59 N. Y. 468. In Otis v. Town of Janesville, 47 Wis. 422, 2 N. W. "S3, the court, after charging that "slight negligence" would not prevent recovery, but that a "want of ordinary care" would do so if it contributed in any "material degree" to produce the injury, refused to charge that a "slight want of ordinary care," in consequence of which the 40 CONTRIBUTORY NEGLIGENCE. (Ch. 2 SAME TERROR CAUSED BY REAL OR FANCIED PERIL. 10. When a person, by reason of terror, caused by real or fancied peril produced by the negligence of defend- ant, fails to use ordinary care to avoid the danger, and thereby suffers injury, it cannot be said that, as a matter of law, he is guilty of contributory neg- ligence. This proposition illustrates the futility of attempting to fix a uni- versal standard by which the conduct of plaintiff may be invariably measured. Where the circumstances are extraordinary, it would be unjust to measure the conduct of the plaintiff by that of the prudent man unruffled by emergency. "If I place a man in such a situation that he must adopt a perilous alternative, I am responsible for the consequences." 1 And so if a person, reasonably apprehending dan- ger, leaves a position of safety, and is thereby hurt, he may still maintain his action. 2 Neither is it contributory negligence in a per- injury occurred, would have that effect. Held, that the instruction should have been given. In Randall v. Telegraph Co., 54 Wis. 140, 11 N. W. 419, this decision is affirmed, "however gross defendant's negligence may have been." Chicago & G. T. Ry. Co. v. Kinnare, 76 111. App. 394; Manning v. Railway Co., 160 Mass. 230, 44 N. E. 135; Harmon v. Railroad Co., 7 Mackey, 255; Apsey v. Railroad Co., 83 Mich. 440, 47 N. W. 513; Eichel v. Senhenn, 2 Ind. App. 208, 28 N. E. 193; Central R. Co. v. Hubbard, 86 Ga. 623, 12 S. E. 1020. 10. i Lord Ellenborough, in Jones v. Boyce, 1 Starkie, 493. See, also, Walters v. Light Co. (Colo. App.) 54 Pac. 960; Hefferman v. Alfred Barber's Son, 36 App. Div. 163, 55 N. Y. Supp. 418; Heath v. Railway Co., 90 Hun, 560, 36 N. Y. Supp. 22; Kreider v. Turnpike Co., 162 Pa. St. 537, 29 Atl. 721; Dunham Towing & Wrecking Co. v. Dandelin, 143 111. 409, 32 N. E. 258; Gibbons v. Railway Co., 155 Pa. St. 279, 26 Atl. 417. 2 Lincoln Rapid-Transit Co. v. Nichols, 37 Neb. 332, 55 N. W. 872, where one is placed by the negligence of another in a situation of sudden peril, his attempt to escape danger, even by doing an act which is also dangerous, and from which injury results, is not contributory negligence, such as will pre- vent him from recovering for the injury, if the attempt be such as a person acting with ordinary prudence might, under the circumstances, make. South Covington & C. St. Ry. Co. v. Ware, 84 Ky. 267, 1 S. W. 493; Brown v. Rail- way Co., 54 Wis. 342, 11 N. W. 356; Gurnz v. Railway Co., 52 Wis. 672, 10 N. W. 11; Turner v. Buchanan, 82 Ind. 147; Iron R. Co. v. Mowery^SG Ohio 11) DEGREE OF CARE KNOWLEDGE OF DANGER. 41 son rightfully on a railroad track, in terror at the sudden appearance of a train, to jump in front of it. 3 Cases are numerous where pas- sengers on railway trains and street cars, apprehending collision or other disaster, are injured by jumping off, when they would have been unhurt had they kept their seats. 4 In these and similar cases the question whether the injured exercised due caution is a proper one for the jury. 5 SAME KNOWLEDGE OF DANGER. 11. Knowledge by plaintiff, either actual or implied by law, of the danger to which defendant has exposed him, is a prerequisite to the defense of contributory neg- ligence. Theoretically, at least, the duties of defendant and plaintiff are reciprocal, and a breach by the former does not release the latter from his obligation to use ordinary care to avoid its injurious con- st. 418; Wilson v. Railroad Co., 26 Minn. 278, 3 N. W. 333; Roll v. Railway Co., 15 Hun, 496. "If he makes such a choice as a person of ordinary care, placed in the same situation, might make." Twomley v. Railroad Co., 69 X. Y. 158. Also see Com. v. Boston & M. R. R., 129 Mass. 500; Pennsylvania Co. v. Roney, 89 Iiid. 453; Linnehan v. Sampson, 126 Mass. 506; Pennsylvania R. Co. v. Snyder, 55 Ohio St. 342, 45 N. E. 559; Missouri, K. & T. Ry. Co. of Texas v. Rogers, 91 Tex. 52, 40 S. W. 956. s Indianapolis, B. & W. Ry. Co. v. Oarr, 35 Ind. 510; Coulter v. Express Co., 56 N. Y. 585. * Buel v. Railroad Co., 31 N. Y. 314; Dyer v. Railway Co., 71 N. Y. 228; Mo- bile & M. R. Co. v. Ashcraft, 48 Ala. 15; Georgia Railroad & Banking Co. v. Rhodes, 56 Ga. 645; Cuyler v. Decker, 20 Hun, 173; Chitty v. Railway Co. (Mo. Sup.) 49 S. W. 868; Washington & G. R. Co. v. Hickey, 5 App. D. C. 43(j; Houston, E. & W. T. Ry. Co. v. Norris (Tex. Civ. App.) 41 S. W. 708; Wade v. Power Co., 51 S. C. 296, 29 S. E. 233; Xicholsburg v. Railroad Co., 11 Misc. Rep. 432, 32 N. Y. Supp. 130; Killien v. Hyde, 63 Fed. 172. B Instruction as to contributory negligence was modified by adding that if, through defendant's negligence, injured was placed in a position of peril and confronted with sudden danger, then the law did not require of him the snnie degree of care and caution that it does of a person who has ample oppor- tunities for full exercise of his judgment. Dunham Towing & Wrecking Co. v. Dandelin, 143 111. 409, 32 X. E. 258; Lincoln Rapid-Transit Co. v. Nichols, 37 Xeb. 332, 55 X. W. 872; Cook v. Railroad Co. (Ala.) 12 Repoiter, 35li; Chi- cago, B. & Q. R. Co. v. Gunderson, 74 111. App. 356. 42 CONTRIBUTORY NEGLIGENCE. (Ch. 2 sequences; 1 but it is evident that this duty which rests on plaintiff cannot arise until he has knowledge of the danger to which he has been exposed. 2 The question of knowledge is generally one of mixed law and fact,, to be determined by the jury under proper instructions from the court; 3 but the danger may be so patent, or the circumstances of such a nature, as to admit of but one finding, in which case it is im- proper to submit the question to the jury. 4 11. i Tucker v. Duncan, 9 Fed. 867. * Wall v. Town of Highland, 72 Wis. 435, 39 N. W. 560; Moomey v. Peak,. 57 Mich. 259, 23 N. W. 804; Jeffrey v. Railroad Co., 56 Io\va, 546, 9 N. W. 884; Langan v. Railway Co., 72 Mo. 392; Dush v. Fitzhugh, 2 Lea, 307; Fow- ler v. Railroad Co., 18 W. Va. 579; Gray v. Scott, 66 Pa, St. 345; Thirteenth & F. St Pass. Ry. Co. v. Boudrou, 92 Pa. St. 475; Pennsylvania Tel. Co. v. Varnau (Pa.) 15 Atl. 624; Citizens' St. R. Co. v. Sutton, 148 Ind. 169, 46 N. E, 462; Hallyburton v. Association, 119 N. C. 526, 26 S. E. 114; Ma con & I. S. St. Ry. Co. v. Holmes, 103 Ga. 655, 30 S. E. 563; City of Peoria v. Adams, 72 111. App. 662; Cochran v. Railroad Co., 184 Pa. St. 565, 39 Atl. 296; Stone v. Hunt, 114 Mo. 66, 21 S. W. 454; Brannock v. Elmore, 114 Mo. 53, 21 S. W. 451; Thayer v. Railroad Co., 93 Mich. 150, 53 N. W. 216; Cannon v. Lewis, 18- Mont. 402, 45 Pac. 572; St. Louis & S. F. Ry. Co. v. Traweek, 84 Tex. 65, 19- S. W. 370; Platt v. Railway Co., 84 Iowa, 694, 51 N. W. 254; Giraudi v. Im- provement Co., 107 Cal. 120, 40 Pac. 108; Davis v. Railroad Co., 105 Cal. 131, 38 Pac. 647; Rowell v. Railroad Co., 64 Conn. 376, 30 Atl. 131. A saloon keeper is not presumed to know that sewer gas, when mixed in proper pro- portions with common air, will explode. Kibele v. City of Philadelphia, 105 Pa. St. 41. One injured by an electric wire cannot be presumed, in the ab- sence of evidence, to have had knowledge that moisture destroyed the insula- tion of such a wire. Giraudi v. Improvement Co., 107 Cal. 120, 40 Pac. 108. s Hathaway v. Railroad Co., 29 Fed. 489; Philbrick v. City of Niles, 25- Fed. 265; Hendricken v. Meadows, 154 Mass. 599, 28 X. E. 1054; Jennings v. Van Schaick, 108 N. Y. 530, 15 X. E. 424. 4 Knowledge implied by law from the circumstances, as in Schofield v. Rail- way Co., 8 Fed. 488; Patterson v. Hemenway, 148 Mass. 94, 19 N. E. 15, cit- ing Taylor v. Manufacturing Co., 140 Mass. 150, 3 N. E. 21; Messenger v. Dennie, 141 Mass. 335, 5 N. E. 283; and Taylor v. Manufacturing Co., 14$ Mass. 470, 10 X. E. 308. Knowledge presumed not to exist in the circumstances. Kibele v. City of Philadelphia, 105 Pa, St. 41; Giraudi v. Improvement Co._ 107 Cal. 120, 40 Pac. 108. 12) ASSUMPTION OF RISK. 4S ASSUMPTION OF RISK. 12. When a person exposes himself or his property to a danger of -which he has knowledge, he is presumed to assume -whatever risks are reasonably incident to his conduct. As where plaintiff, knowing a bridge to be out of repair and un- safe, although in public use, attempted, with the greatest care and caution, to drive over it, and was injured, the court held that he had assumed the risk, and was guilty of contributory negligence. 1 An apparent exception to this rule exists in cases where a person knowingly encounters danger for the purpose of saving his own prop- erty, which has been placed in peril by the defendant; or endangers his own life in attempting to rescue another from imminent peril. In this class of cases, however, the courts hold that it is the right, and even the duty, of one to endeavor, in such circumstances, to protect his own property, and to save life, if it may be attempted without a reckless exposure to danger. 2 12. i Morrison v. Shelby Co., 116 Ind. 431, 19 X. E. 316. Plaintiff stood for an hour and a half -within two feet of an unguarded trench, dug by de- fendant, looking at election returns, when a sudden surging of the crowd pushed him into the trench, and he was injured. Held, that he had volun- tarily exposed himself to the danger. Roe v. Crimmins, 10 Misc. Rep. 711, 31 X. Y. Supp. SOT; Walker v. Lumber Co., 86 Me. 191, 29 Atl. 979; Moore v. Railway Co., 126 Mo. 265, 29 S. W. 9; Whalen v. Light Co., 151 X. Y. 70, 45 X. E. 363; Berg v. Railway Co., 70 Minn. 272, 73 X. W. 648: West Chicago St. R. Co. v. Schenker, 78 111. App. 592; Bunnell v. Bridge Co., 66 Conn. 24, 33 Atl. 533; Larkin v. Railroad Co., 166 Mass. 110, 44 X. E. 122; Culbertson v. Railroad Co., 88 Wis. 567, 60 X. W. 998; Downes v. Bridge Co. (Sup.) 58 X. Y. Supp. 628. 2 In Rexter v. Starin, 73 X. Y. 601, the plaintiff's boat being fastened to the pier, and plaintiff in another boat alongside, defendant's boat approached in such a manner as to make a collision imminent. Plaintiff jumped onto his own boat to do what he could to avert the collision, and was injured, by being struck by a piece of timber that was torn off in the collision. Defendant claimed that it was contributory negligence for him to put himself in the way of a danger that was imminent and evident. The court held, however, that it was plaintiff's right and duty to look to the safety of his boat, and it was for the jury to determine whether his act was that of a reasonable man, under 44 CONTRIBUTORY NEGLIGENCE. (Ch. 2 Absent-mindedness or failure to remember is no excuse. If the plaintiff at any time had knowledge of the defective or dangerous con- ditions, it is sufficient to charge him with the assumption of the risk. This is frequently illustrated in cases of injury at railroad crossings, where persons, familiar with the locality, fail to look out for or ob- serve approaching trains. 3 In view of what has already been said, it is hardly necessary to add that such knowledge in itself does not constitute contributory negligence, for, as has been seen, one may lawfully expose himself to danger in certain circumstances, or, ex- posing himself negligently, may suffer from a cause which he could not reasonably anticipate. SAME ANTICIPATION OF NEGLIGENCE. 13. A person is obligated to anticipate only such danger or negligence as is to be reasonably apprehended in the circumstances. A long line of decisions support the general proposition that, as every one is presumed to act with due care and observance of the law, negligence cannot be imputed to one who fails to anticipate that another will do an unlawful act, or be remiss in his duty. 1 But every- the circumstances. Wasmer v. Railroad Co., 80 N. Y. 212. But a person must not be reckless in his exposure to danger, even in an effort to save his own property negligently imperiled by another. Hay v. Railroad Co., 37 U. C. Q. B. 456. It is not contributory negligence per se for a stranger to go on premises where a fire is raging, which endangers life or safety, if he does so in good faith, for the purpose of saving life or property. Henry v. Railroad Co., 67 Fed. 426. s Baltimore & O. R. Co. v. Whitacre, 35 Ohio St 627. See, also, Bruker v. Town of Covington, 69 Ind. 33; Bassett v. Fish, 75 N. Y. 303; Weed v. Vil- lage of Ballston Spa, 76 X. Y. 329; Salem-Bedford Stone Co. v. O'Brien, 12 Ind. App. 217, 40 X. E. 430. Where the plaintiff knew of the obstructions, but thought they had been removed, Mahon v. Burns, 13 Misc. Rep. 19, 34 X. Y. Supp. 91. 13. i Xolan v. Railroad Co., 53 Conn. 461, 4 Atl. 106; Central Trust Co. v. Wabash, St. L. & P. Ry. Co., 26 Fed. 896; Maloy v. Railway Co., 84 Mo. 270; Sickles v. Ice Co., 80 Hun, 213, 30 X. Y. Supp. 100. A traveler crossing the track may presume that the train will not run at a speed prohibited by ordinance, Hart v. Devereux, 41 Ohio St. 565; and that the statutory warning not be omitted, Missouri Pac. Ry. Co. v. Stevens, 35 Ivan. 622, 12 Pac. 25; 14) LEGAL STATUS OF PLAINTIFF. 45 day experience shows that such a presumption is incompatible with ordinary care and prudence, and it is well settled that the intervening negligence of a third person does not relieve the first wrongdoer from liability if such intervening act was one which would ordinarily be ex- pected to flow from his negligence. 2 Although there is but little authority to support the position, it is difficult to understand why the standard of ordinary care, when applied to the conduct of the plaintiff, should not include the prob- abilities and considerations which actually shape the conduct of the typically prudent man. Presumptions in questions of evidence are one thing, and presumptions in the conduct of every-day business are another. Every man is presumed innocent until proved guilty; but the prudent man keeps his money in the bank, and locks his doors at night. 8 LEGAL STATUS OF PLAINTIFF AS AFFECTING HIS CON- TRIBUTORY NEGLIGENCE. 14. The legal status of plaintiff at the time of the in- jury does not conclude the question of his con- tributory negligence, although it may place on him the burden of showing that his conduct, if illegal, did not influence the result complained of. As the degree of care required to relieve a person of the charge of negligence varies according to the duty which he must discharge, so does the measure of diligence to avoid harm, exacted from the plaintiff, increase or diminish in proportion to the duty which is owed him by the defendant. It may be put in this way: The degree of care required of plaintiff to rebut the charge of contributory negli- gence is inversely as the duty owed him by the defendant. This prop- osition is, of course, of no practical value further than to direct atten- and need not anticipate a negligent act, O'Connor v. Railway Co., 94 Mo. 150, 7 S. W. 106. Also see cases collected, Beach, Contrib. Neg. p. 52. 2 Henry v. Dennis, 93 Ind. 452 (a case said to be wrongly decided). Pastene v. Adams, 49 Gal. 87; Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62); Lane v. Atlantic Works, 111 Mass. 136; Weick v. Lander, 75 111. 93. s Texas & St. L. R. Co. v. Young, 60 Tex. 201; Beach, Contrib. Neg. p. 51. 46 CONTRIBUTORY NEGLIGENCE. (Ch. 2 tion to the shifting nature of the relation which exists between the reciprocal duties of plaintiff and defendant in actionable negligence. It is true that even slight negligence will defeat plaintiff's right to recover, but, in determining if he has been guilty of any negligence, the degree of care which he has exercised must be examined in the light of the circumstances. The relationship of the parties as affecting the degree of requisite care will be considered later, but the legal status of the plaintiff at the time the injury occurred is often significant in determining whether he has used that ordinary care which is suited to the occa- sion. Illegality of Plaintiffs Conduct. The fact that at the time of the injury plaintiff was engaged in an illegal act is not contributory negligence per se. It is undoubtedly proper matter for consideration as tending to show want of ordinary care, but its effect may be rebutted by showing that the illegal act was merely collateral, and did not influence the result of defendant's negligence. Thus when, at the time of the accident, plaintiff was violating a statute regulating speed, it was held that this fact merely placed on him the burden of showing that the violation of the statute in no way contributed to the collision. 1 And in general it may be said of the violation of a statute, whether by plaintiff or defendant, that it is merely evidence of want of ordinary care. 2 The law on this 14. i Minerly v. Ferry Co., 56 Hun, 113, 9 X. Y. Supp. 104; Piollet v. Sim- mers, 106 Pa. St. 95; Philadelphia, W. & B. R. Co. v. Philadelphia & H. de G. Steam Towboat Co., 23 How. 209; Spofford v. Harlow, 3 Allen (Mass.) 176; Baker v. Portland, 58 Me. 199. In the latter ease the plaintiff was driving at a rate of speed on the streets in violation of a city ordinance, and the court says: "While it might subject the offender to a penalty, it will not excuse the town for a neglect to make its ways safe and convenient for travelers, if the commission of the plaintiff's offense did not in any degree contribute to produce the injury of which he complains." Norris v. Litchfield, 35 N. H. 271, 277. But compare Toledo, W. & W. Ry. Co. v. Brooks, 81 111. 245, and Chi- cago & A. R. Co. v. Michie, 83 111. 427. See, also, Needham v. Railroad Co., 37 Cal. 409. 2 Clark v. Railroad Co., 64 X. H. 323, 10 Atl. 676; Briggs v. Railroad Co., 72 N. Y. 26; Augusta & S. R. Co. v. McElmurry, 24 Ga. 75; Hanlon v. Railroad Co., 129 Mass. 310; Philadelphia, W. & E. R. Co. v. Kerr, 25 Md. 521; Knup- fle v. Ice Co., 84 N. Y. 488 (reversing 23 Hun, 159); Vincett v. Cook, 4 Hun (X. Y.) 318. Welch v. Wesson, 6 Gray (Mass.) 505: One of two persons en- 14) LEGAL STATUS OF PLAINTIFF. 47 point is thus stated by Bell, J., in a New Hampshire case: 8 "As a general principle, it seems to us wholly immaterial whether, in the abstract, the plaintiff was a wrongdoer, or a trespasser, or was acting in violation of the law. For his wrong or trespass he is answerable in damages, and he may be punishable for his violation of law; but his rights as to other persons and as to other transactions are not af- fected by that circumstance. A traveler may be traveling on a turn- pike without payment of toll ; he may be riding on a day when riding Is forbidden, or with a speed forbidden by law; * * * and in none of these cases is his right of action for any injury he may sus- tain from the negligent conduct of another in any way affected by gaged in trotting their horses against each other may maintain an action against the other for willfully running him down, although they were trotting for money, contrary to law. "We presume it may be assumed as an undis- puted principle of law that no action will lie to recover a demand or a sup- posed claim for damages if, to establish it, the plaintiff requires aid from an illegal transaction, or is under the necessity of showing and depending in any -degree upon an illegal agreement, to which he himself had been a party." Merrick, J. He further says, in effect: The plaintiff presented a case with no taint of illegality, which, if undisputed, entitled him to recover. The de- fendant then invoked the aid of an illegal agreement and conduct, in which t>oth parties equally participated, and from such a source neither party should be permitted to derive a benefit. In Steele v. Burkhardt, 104 Mass. 50, plain- tiff had placed his horse and wagon at right angles to the sidewalk while un- loading goods, contrary to a city ordinance, and defendant negligently drove his horse against that of plaintiff, when, by exercising reasonable care, he might have passed safely. The court said that the violation of the ordinance was admissible to show negligence in respect to keeping the ordinance, but did not necessarily show negligence that contributed to the injury. So, also, in Jones v. Inhabitants of Andover, 10 Allen (Mass.) 18, 20; Bigelow, C. J., says: "So, in case of collision of two vehicles on a highway, evidence that the plaintiff was traveling on the left side of the road, in violation of the statute, when he met the defendant, would be admissible to show negligence." But see, also, Wallace v. Express Co., 134 Mass. 96, where it was held that if a person sailing for pleasure on the Lord's Day, in violation of a statute, is in- jured by being negligently run into by a steamboat, his unlawful act neces- sarily contributes to the injury, but otherwise if the act of those in charge of the steamboat was wanton and malicious. There is very little authority to support this proposition, and the fact that three of the justices, including Holmes, now chief justice, dissented, is significant. 3 Xorris v. Litchfield, 35 N. H. 271, 277. 48 CONTRIBUTORY NEGLIGENCE. (Ch. 2 these circumstances. He is none the less entitled to recover, unless it appears that his negligence or his fault has directly contributed to his damage." Nor, on the other hand, is contributory negligence any the less available as a defense by reason of the fact that the defendant has failed to perform a duty imposed by statute. 4 But when the illegal act in any manner contributes to produce the injury it constitutes the defense of contributory negligence to the same extent only as though it were not tainted with illegality. Conversely, the fact that defendant's negligence involves a breach of statute or an ordinance does not in any degree relieve plaintiff from the charge of contributory negligence ; as where one carelessly walks into an elevator opening, left unguarded contrary to statute. 5 SAME PLAINTIFF AS TRESPASSER OR LICENSEE. 15. The bare fact that plaintiff was committing a tres- pass -when injured -will not prevent his recovery for defendant's negligence. As Trespasser. Negligence is a breach of duty, and the duties owed to an actual trespasser are few and slight. The law does not impose upon any one the duty to anticipate a trespass, and guard against possible in- jury to a wrongdoer; x but it will not excuse a willful or wanton in- * Anderson v. Lumber Co., 67 Minn. 79, 69 X. W. 630; Knisley v. Pratt, 148 N. Y. 372, 42 N. E. 986; O'Maley v. Gaslight Co., 158 Mass. 135, 32 X. E. 1119. 5 McRickard v. Flint, 114 N. Y. 222, 21 X. E. 153; and see cases collected in Beach, Contrib. Xeg. (2d Ed.) p. 67. Also Trask v. Shotwell, 41 Minn. 66, 42 X. W. 699; Beehler v. Daniels, 19 R. I. 49, 31 Atl. 582; South Bend Iron Works v. Larger, 11 Ind. App. 367, 39 X. E. 209. 15. i Trask v. Shotwell, 41 Minn. 66, 42 X. W. 699: Elevator in ship- ping room. Plaintiff's intestate came for goods, and was told to call at door of shipping room, but to wait outside. He went into the room, and was killed by falling down an elevator shaft, left unguarded, contrary to> statute. Held no recovery. In Larmore v. Iron Co., 101 X. Y. 391, 4 X. E. 752, plain- tiff went onto premises without invitation to seek employment, and while passing along was injured by operation of a machine not obviously dangerous, although the defect might have been discovered by the exercise of reasonable care. Xo recovery. Followed in Sterger v. Vansicklen, 132 X. Y. 499, 30 X. E. 15) LEGAL STATUo OF Pi.AlNTIFK. 49 jury inflicted on him. But where plaintiff relies upon the violation of some statute or ordinance enacted for the protection of those right- fully upon certain premises, he must show that at the time of the injury he belonged to the class intended to be benefited by the stat- ute or ordinance, and if it appears that he was at that time a tres- passer he cannot complain of the violation. Thus, where a statute required railroad companies to block all frogs in their yards, and plaintiff's decedent, a trespasser in defendant's yards, was killed by reason of catching his foot in an unblocked frog, no other negli- gence on the part of defendant being shown, no recovery was allowed; the court observing: "A violation of a statutory duty can be made the foundation of an action only by a person belonging to the class intended to be protected by such regulation, and all statutes requiring the owner or occupant of premises to adopt certain precautions to ren- der them safe are designed for the protection, not of the wrongdoers or trespassers, but of those who are rightfully upon them. Hence it is held universally, except, perhaps, in Tennessee, that in case of noncompliance with such a statute the injured person, in order to recover, must have been rightfully in the place, and free from contrib- 987; distinguished in Byrne v. Railroad Co., 104 N. Y. 362, 10 N. E. 539; Mil- ler v. Woodhead, 104 N. Y. 471, 11 N. E. 57; cited in Splittdorf v. State, 108- X. Y. 205, 15 X. E. 322; Cusick v. Adams, 115 N. Y. 55, 21 N. E. 673; Larkin v. O'Neill, 119 X. Y. 221, 23 N. E. 563. See, also, Redigan v. Railroad Co., l.">5 Mass. 44, 28 X. E. 1133. where owner of private way failed to put up- sign. Stevens v. Xichols, 155 Mass. 472, 29 X. E. 1150; Reardon v. Thomp- son, 149 Mass. 207, 21 X. E. 369; Omaha & R. V. R. Co. v. Martin, 14 Xeb. 295, 15 X. TV. 696; Blatt v. McBarron, 161 Mass. 21, 36 X. E. 468; Mergen- thaler v. Kirby, 79 Md. 182, 28 Atl. 1065; Fredericks v. Railroad Co., 46 La. Ann. 1180, 15 South. 413; Berlin Mills Co. v. Croteau, 32 C. C. A. 126, 88 Fed. 860; Biggs v. Wire Co. (Kan. Sup.) 56 Pac. 4; Ritz v. City of Wheeling (W. Va.) 31 S. E. 993; Peters v. Bowman, 115 Cal. 345, 47 Pac. 113, 598; Butz v. Cnvanaugh, 137 Mo. 503, 38 S. W. 1104; Missouri, K. & T. Ry. Co. of Texas v. Dobbins (Tex. Civ. App.) 40 S. W. 861; Dublin Cotton-Oil Co. v. Jarrard (Tex. Civ. App.) 40 S. W. 531; Reeves v. French (Ky.) 45 S. W. 771; Anderson v. Railway Co., 19 Wash. 340, 53 Pac. 345; Hector Min. Co. v. Robertson, 22 Colo. 491, 45 Pac. 406; Hutson v. King, 95 Ga. 271, 22 S. E. 615; Magner v. Baptist Church, 174 Pa. St. 84, 34 Atl. 456; LOAVC v. Salt Lake City, 13 Utah, 91, 44 Pac. 1050; Dicken v. Coal Co., 41 W. Va. 511, 23 S. E. 582; Pelton v. Schmidt, 104 Mich. 345, 62 X. W. 552; Barney v. Railroad Co., 126 Mo. 372, 28 S. W. 1069; Walsh v. Railroad Co., 145 X. Y. 301, 39 N. E. 10US;. Elliott v. Carlson, 54 111. App. 470. BAR.XEG. 4 50 CONTRIBUTORY NEGLIGENCE. (Ch. 2 utory negligence. Such statutes were never designed to abrogate the ordinary rules that, to recover, the neglected duty must have been due to the party injured, and that he himself must have been free from contributory negligence." a A.S Licensee. But where the circumstances are such as to create or imply a license or invitation to go upon premises, the owner is bound to ex- ercise ordinary care for his safety. 3 And in some cases it would seem to be sufficient if the owner exercised but slight care. 4 The weight of authorities seems to support the proposition that, if the owner is ignorant of the danger, or it is patent, the licensee or invited person cannot recover. 8 2 Akers v. Railway Co., 58 Minn. 540, GO N. W. 669. a Campbell v. Boyd, 88 N. C. 129; Hooker v. Railway Co., 76 Wis. 542, 44 N. W. 1085; Brezee v. Powers, 80 Mich. 172, 45 N. W. 130; Toomey v. San- born, 146 Mass. 28, 14 N. E. 921; Emery v. Exposition, 56 Minn. 460, 57 N. W. 1132; Davis v. Ferris, 29 App. Div. 623, 53 N. Y. Supp. 571; Brehmer v. Lyman (Vt.) 42 Atl. 613; Kinney v. Onsted, 113 Mich. 96, 71 N. W. 482; Mc- Govern v. Oil Co., 11 App. Div. 588, 42 N. Y. Supp. 595; Richmond & M. Ry. Co. v. Moore's Adm'r, 94 Va. 493, 27 S. E. 70; Barman v. Spencer (Ind. Sup.) 49 N. E. 9; Anderson & Nelson Distilling Co. v. Hair (Ky.) 44 S. W. 658; Doherty v. McLean, 171 Mass. 399, 50 N. E. 938; Wilson v. Olano, 28 App. Div Supp. 448, 51 N. Y. Supp. 109; Smith v. Day, 86 Fed. 62; Blackstone v. Foundry Co., 170 Mass. 321, 49 N. E. 635; Fitzpatrick v. Manufacturing Co. (N. J. Sup.) 39 Atl. 675; Clarkin v. Biwabik-Bessemer Co., 65 Minn. 483, 67 N. W. 1020; Lowe v. Salt Lake City, 13 Utah, 91, 44 Pac. 1050; Hart v. Park Club, 54 111. App. 480; Peake v. Buell, 90 Wis. 508, 63 N. W. 1053; Pel- ton v. Schmidt, 104 Mich. 345, 62 N. W. 552. * Woodruff v. Bowen, 136 Ind. 431, 34 X. E. 1113; Beehler v. Daniels, 18 R. I. 563, 29 Atl. 6; Walsh v. Railroad Co., 145 N. Y. 301, 39 N. E. 1068; Plummet v. Dill, 156 Mass. 426, 31 N. E. 128; Faris v. Hoberg, 134 Ind. 209. 33 N. E. 1028; Gibson v. Leonard, 143 111. 182, 32 N. E. 182; Akers v. Rail- road Co., 58 Minn. 540, 60 N. W. 669; Stevens v. Nichols, 155 Mass. 472. 29 N. E. 1150. 5 Campbell v. Boyd, 88 N. C. 129; Cusick v. Adams, 115 N. Y. 55, 21 N. E. 673; Eisenberg v. Railway Co., 33 Mo. App. 85. See, also, Shir. Lead. Gas. <3d Ed.) p. 276: "A licensee can only maintain an action against his licensor when the danger through which he has sustained hurt was of a latent charac- ter, which the licensor knew of and the licensee did not." And it is fre- quently said that the owner of premises is liable to a licensee for something in the nature of a trap or a concealed danger only. Southcote v. Stanley, 16) BKLATIVE TIME OF PLAINTIFF'S NEGLIGENCE. 51 THE RELATIVE TIME OF PLAINTIFF'S NEGLIGENCE AS AFFECTING HIS RIGHT TO RECOVER. 16. Referring to defendant's negligence, the relative time of the negligence of plaintiff as happening before, at the time of, or subsequent to that of defendant, is immaterial. Plaintiff negligently walks on the railroad tracks of defendant, who discovers him in time to prevent injury by the exercise of ordinary care. Failing in this, defendant is liable to plaintiff, although the lat- ter is, at best, but a mere licensee, for injuries thus caused. 1 A person may be induced by defendant's conduct to assume the risk, 2 or he may assume some risks with the reasonable expectation that those having knowledge of his position will use ordinary care to avoid inflicting injury on him; 3 and if, having this knowledge, they fail to use the proper degree of care, and plaintiff is consequently 1 Hurl. & N. 247; White v. France, 2 C. P. Div. 308; Bolch v. Smith, 7 Hurl. .& N. 730; Pickard v. Smith, 10 C. B. (N. S.) 470. 16. i Lay v. Railroad Co., 106 N. C. 404, 11 S. E. 412; Houston & T. C. Ry. Co. v. Carson, 66 Tex. 345, 1 S. W. 107; Wooster v. Railway Co., 74 Iowa, 593, 38 N. W. 425; Kansas Pac. Ry. Co. v. Cranmer, 4 Colo. 524; Kelly v. Transit Co., 95 Mo. 279, 8 S. W. 420; Austin v. Steamboat Co., 43 N. Y. 75; Baltimore & O. R. Co. v. Kean, 65 Md. 394, 5 Atl. 325; Button v. Railroad Co., 18 N. Y. 248; Cleveland, C. C. & I. R. Co. v. Elliott, 28 Ohio St. 340; Doggett v. Railroad Co., 78 N. C. 305; Needham v. Railroad Co., 37 Cal. 409; Chicago & A. R. Co. v. Anderson, 166 111. 572, 46 X. E. 1125; Embry v. Rail- road Co. (Ky.) 36 S. W. 1123; St. Louis S. W. Ry. Co. v. Bishop, 14 Tex. Civ. App. 504, 37 S. W. 764; Lindsay v. Railroad Co., 68 Vt. 556, 35 Atl. 513; Blankenship v. Railroad Co., 94 Va. 449, 27 S. E. 20; Gunn v. Railroad Co., 42 W. Va. 676, 26 S. E. 546; Thomas v. Railway Co., 103 Iowa, 649, 72 N. W. 783; Willis v. Railroad Co., 122 N. C. 905, 29 S. E. 941. 2 Dewire v. Bailey, 131 Mass. 169; Looney v. McLean, 129 Mass. 33. s Gothard v. Railroad Co., 67 Ala. 114; Zimmerman v. Railroad Co., 71 Mo. 476; Trow v. Railroad Co., 24 Vt. 487; Wright v. Brown. 4 Ind. 95; Baltimore & O. R. Co. v. State, 33 Md. 542; Baltimore & O. R. Co. v. Mul- ligan, 45 Md. 486; Mississippi Cent. R. Co. v. Mason, 51 Miss. 234; Johnson v. Railroad Co., 27 La. Ann. 53; Isbell v. Railroad Co., 27 Conn. 393; Under- wood v. Waldron, 33 Mich. 232; O'Rourke v. Railroad Co., 44 Iowa, 526; Illinois Cent. R. Co. v. Hoffman, 67 111. 287; Lane v. Atlantic Works, 107 Mass. 104; Tuff v. Warmau, 2 C. B. (N. S.) 740. 52 CONTRIBUTORY NEGLIGENCE. (Ch. 2 injured, their breach of duty becomes the proximate cause of the in- jury, and they are liable. 4 When plaintiff was riding in a phaeton,, and, in attempting to cross the tracks of defendant, the view being unobstructed, was struck by a car, and injured, the court said: "If the motorman so saw the plaintiff in such danger and unconscious of her peril, and might, by the exercise of reasonable care and pru- dence, have avoided the consequences of the plaintiff's negligence, but failed to do so, then such failure Was something more than a want of ordinary care on his part, and amounted to wanton or reckless conduct." 6 If the negligence of plaintiff is contemporaneous with that of de- fendant, and the mutual negligent acts combine to produce the harm,, it is evident that there can be no recovery. 6 It was so held where plaintiff, in the employment of a third person, was engaged, under the direction of a servant of defendant, in withdrawing from a rock an unexploded charge of powder. The two men, working together, employed a dangerous method of performing the work, and plaintiff was injured by an explosion. 7 If the acts of negligence are not con- * Gothard v. Railroad Co., 67 Ala. 114; Shear. & R. Neg. (-ith Ed.) 99; Little v. Raihvay Co., 88 Wis. 402, 60 N. W. 705; Baltimore & O. 11. Co. v. Hellenthal, 88 Fed. 116, 31 C. C. A. 414; Higgins v. Railway Co., 1 Marv. 352, 41 Atl. 86; Maxwell v. Railway Co., 1 Marv. 199, 40 Atl. 945; Krenzer v. Railway Co., 151 Ind. 587, 52 N. E. 220; Texas & P. Ry. Co. v. Lively, 14 Tex. Civ. App. 554, 38 S. W. 370; Baltimore City Pass. Ry. Co. v. Coouey, 8T Md. 261, 39 Atl. 859; McKeon v. Railway Co., 20 App. Div. 601, 47 N. Y. Supp. 374; Thompson v. Rapid-Transit Co., 16 Utah, 281, 52 Pac. 92; Omaha St. Ry. Co. v. Martin, 48 Neb. 65, 66 N. W. 1007; Styles v. Railroad Co., 118- N. C. 1084, 24 S. E. 740; Hall v. Railway Co., 13 Utah, 243, 44 Pac. 1046; McGuire v. Railroad C.o., 46 La. Ann. 1543, 16 South. 457; Moore v. Raihvay Co., 126 Mo. 265, 29 S. W. 9; Little v. Railway Co., 88 Wis. 402, 60 N. W. 705; Keefe v. Railway Co., 92 Iowa, 182, 60 N. W. 503. B Little v. Railway Co., 88 Wis. 402, 60 N. W. 705; and see Carroll v.. Railroad Co., 13 Minn. 30 (Gil. 18); Griggs v. Fleckenstein, 14 Minn. 81 (Gil. 62). e Stucke v. Railroad Co., 9 Wis. 202; Straus v. Railroad Co., 75 Mo. 185; Haley v. Railroad Co., 21 Iowa, 15; Needham v. Railroad Co., 37 Cal. 409; Reynolds v. Hindman, 32 Iowa, 146; Northern Cent. Ry. Co. v. State, 29 Md. 420; Connor v. Traction Co., 173 Pa. St. 602, 34 Atl. 238; Central Railroad" & Banking Co. v. Newman, 94 Ga. 560, 21 S. E. 219; King v. Railway Co. (Minn.) 79 N. W. 611. i Corneilson v. Railway Co., 50 Minn. 23, 52 N. W. 224. 17) RELATIVE TIME OF PLAINTIFF'S NEGLIGENCE. 53 temporaneous, the liability must be referred to the author of the act which was the proximate cause of the injury. Lastly, when the negligence of plaintiff is subsequent to that of de- fendant, the ordinary, typical case exists where the plaintiff, having knowledge of defendant's prior negligence, is bound to use ordinary care, in the circumstances, to avoid its probable consequences. If he fails to use such ordinary care, and the failure is the proximate cause of his injury, he cannot recover. Thus, if a person, with full and present knowledge of the defective condition of a sidewalk, and of the risks incident to its use, voluntarily attempts to travel upon it, when the defect could easily have been avoided by going around it, he is not in the exercise of reasonable care, but must be presumed to have taken his chances, and, if injury results, he cannot recover against the city. 8 It is therefore immaterial at what time the negligence of plaintiff operated, whether it was prior to, contemporaneous with, or subse- quent to defendant's negligence. If it was the proximate cause of his injury, he cannot recover. The principle has been tersely put in the following language: ''The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his oppo- nent, is considered solely responsible for it." 9 SAME PLAINTIFF'S NEGLIGENCE AFTER THE ACCIDENT 17. Plaintiff's negligence occurring after the accident, and thereby increasing the damage, is not a defense to his right of action, but is a bar to recovery of the excess of damages thus produced. In other words, plaintiff being without fault in causing the legal injury, defendant is liable for so much of the damage only as proxi- mately resulted from his own negligence. 1 s Wright v. City of St. Cloud, 54 Minn. 94, 55 N. W. 819. 9 2 Quart. Law Rev. (1886) p. 507. 17. i Thomas v. Kenyon, 1 Daly (N. Y.) 132; Gould v. McKenna, 86 Pa. St. 297; Secord v. Railway Co., 5 McCrary, 515, 18 Fed. 221; Tift v. Jones, 52 Ga. 538; Sherman v. Iron-Works Co., 2 Allen (Mass.) 524; Hunt v. Gas- light Co., 1 Allen (Mass.) 343; Wright v. Telegraph Co., 20 Iowa, 195; Chase v. Railroad Co., 24 Barb. (X. Y.) 273; Hamilton v. McPherson, 28 N. Y. 72; 54 CONTRIBUTORY NEGLIGENCE. (Ch. 2 It is immaterial that the injury was aggravated by subsequent mal- treatment of physician, or by lack of judgment on the part of the plaintiff, provided that good faith and ordinary prudence in the cir- cumstances are shown. 2 The above rule has, of course, no application except in those cases where a distinct division and apportionment of the injury or damages can be made. CONTRIBUTORY NEGLIGENCE OF THIRD PERSONS. 18. The negligent act of a stranger, contributing to pro- duce the injury complained of, is no defense to the action; 1 but in certain circumstances the plaintiff may be so identified -with a third person, either by express contract or by implication of law, as to be chargeable with his misconduct, and make his neg- ligence his own. Milton v. Steamboat Co., 37 N. Y. 210; Greenland v. Chaplin, 5 Exch. 243. Can recover up to excess caused by his own negligence. Stebbins v. Rail- road Co., 54 Vt. 464; Miller v. Mariner's Church, 7 Me. 51; State v. Powell, 44 Mo. 436; Douglass v. Stephens, 18 Mo. 362; Illinois Cent. R. Co. v. Finnigan, 21 111. 646; Worth v. Edmonds, 52 Barb. (N. Y.) 40. Where there are two or more injuries, to one of which only plaintiff has contributed, he can recover for the other. Northern Cent. Ry. Co. v. State, 29 Md. 420. Plaintiff, being injured on a railway, died from gross negligence of employe's. It was held immaterial whether he contributed to the original injury. If his death resulted from defendant's negligence, his representatives could recover. 2 Lyons v. Railroad Co., 57 N. Y. 4S9; Hope v. Railroad Co., 40 Hun (X. Y.) 438; Ehrgott v. Mayor, etc., 96 N. Y. 264; Lawrence v. Railroad Co., 29 Conn. 390; Stover v. Inhabitants of Bluehill, 51 Me. 439; Simpson v. City of Keokuk, 34 Iowa, 568; Sauter v. Railroad Co., 66 N. Y. 50; Vandenburgh v. Truax, 4 Denio (N. Y.) 464; Pollett v. Long, 56 N. Y. 200; Standard Oil Co. v. Bow- ker, 141 Ind. 12, 40 N. E. 128; Strudgeon v. Village of Sand Beach, 107 Mich. 496, 65 N. W. 616; Bradford City v. Downs, 126 Pa. St. 622, 17 Atl. 884. 18-20. i Webster v. Railroad Co., 38 N. Y. 260; Barrett v. Railroad Co., 45 N. Y. 028; Arctic Fire Ins. Co. v. Austin, 69 X. Y. 470; Paulmier v. Railroad Co., 34 N. J. Law, 151. And see Sullivan v. Railroad Co.. 30 Pa. St. 234; Gee v. Railroad Co., L. R. 8 Q. B. 161, 174; Harrison v. Railroad Co., 3 Hurl. & C. 231; Burrows v. Coke Co., L. R. 5 Exch. Cas. 67; Warren v. Railroad Co., 8 Allen (Mass.) 227; Eaton v. Railroad Co., 11 Allen (Mass.) 503; Ingalls v. Bills, 9 Mete. (Mass.) 1; McElroy v. Railroad Corp., 4 Cush. (Mass.) 400; Cayzer v. Taylor, 10 Gray (Mass.) 274; Churchill v. Holt, 127 Mass. 165. 18-20) CONTRIBUTORY NEGLIGENCE^ OF THIRD PERSONS. 55 19. To make the misconduct of a third party a defense to the action, to make it contributory negligence, within the definition, it must be shown that be- tween the plaintiff and the person contributing to cause the injury there existed such a relation or connection as to make the former legally responsible for the negligent act of the latter. Such identification or relationship may exist between (a) Master and servant or principal and agent. (1) Shipper and carrier of goods. (b) Guardians and persons non sui juris. (1) Children. (2) Lunatics, idiots, etc. SAME MASTER AND SERVANT OR PRINCIPAL AND AGENT. 20. When the relation and circumstances are such that the master would be responsible for the negligent acts of his servant in an action for injuries caused thereby, such negligence may be imputed to the master as contributing to the injury complained of by him. Thus, where the servant, being in charge of plaintiff's team, negli- gently left the horses unhitched, and engaged in a boisterous alterca- tion with the defendant, at which the horses took fright, and ran away, and were injured, in this case the court says: "But if Keddick [the servant] was guilty of such negligence in the care of the team as would preclude him, if he had been its owner, from maintaining an action against Reasor [the defendant], this negligence must be equally fatal in an action brought by this plaintiff, who confided the team to Reddick's [his servant's] care." 2 It is apparent that if the horses, in 2 Puterbaugh v. Reasor. 9 Ohio St. 484; and nearly identical, Page v. Hodge, 63 X. H. 610, 4 Atl. 805. Also, Toledo & W. Ky. Co. v. Goddard, 25 Ind. 185; Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274; Louisville, N. A. & C. Ry. Co. v. Stommel, 126 Ind. 35, 25 X. E. 863; Welty v. Railroad Co., 105 Ind. 55, 4 X. E. 410; Abbitt v. Railway Co., 150 Ind. 498, 50 X. E. 729; Xesbit v. Town of Garner, 75 Iowa, 314, 39 X. W. 516; City of Joliet v. 56 CONTRIBUTORY NEGLIGENCE. (Ch. 2 running away, had injured a traveler, he could have maintained his action against the master, who was responsible for his servant's negli- gence. But where the contributory negligence is based upon knowledge of the existence of danger, the negligence of the agent cannot be imput- ed to the principal, unless the failure to communicate the knowledge is in itself negligence on the part of the agent. 3 So, also, the knowl- edge of the principal is not imputed to the agent unless it appears that, in the circumstances, ordinary care and prudence would have permitted and required that he should inform the agent, in order that he might avoid the injury; as, where an obstacle is negligently left in the road and the principal, having knowledge of it, but no reason- able cause to apprehend danger, fails to warn his agent, who, with- out personal fault, drives his principal's wagon against it. 4 But where the negligence of the master contributes with that of a third person, to the injury of his servant, it cannot be imputed to the servant in an, action against such third party. 5 Nor can the con- tributory negligence of a co-employ^ be imputed to the plaintiff in a suit against the principal. 6 21. SHIPPER AND CARRIER OF GOODS By weight of authority, the shipper of goods is so identified -with the common carrier that he cannot recover in an action against a third person for injuries to the goods, to which the negligence of the carrier contributed. The doctrine of identification reached its extreme limit in the famous, but now exploded, case of Thorogood v. Bryan, 1 wherein it Seward, 86 111. 402; Minster v. Railway Co., 53 Mo. App. 276; Bronson v. Railroad Co., 24 App. Div. 262, 48 N. Y. Supp. 257. 3 Weisser's Adm'rs v. Denison, 10 N. Y. 68; Board of Com'rs of Boone Co. v. Hutchler, 137 Ind. 140, 36 N. E. 534; Fuller v. Benett, 2 Hare, 402. * Gannon v. Bangor, 38 Me. 443. B Galveston, H. & S. A. Ry. Co. v. Garteiser, 9 Tex. Civ. App. 456, 29 S. W. 939, where a railroad contractor negligently failed to send out a flagman, and his employ^ was injured. e Poor v. Sears, 154 Mass. 539, 28 N. E. 1046; Seaman v. Koehler. 122 X. Y. 646, 25 N. E. 353; Abbitt v. Railroad Co. (Tnd. Sup.) 40 X. E. 40; McCormack v. Railroad Co., 18 App. Div. 333, 46 N. Y. Supp. 230. 21. 18 C. B. 115. 21) SHIPPER AND CARRIER OF GOODS. 57 was held that a passenger in a public conveyance was so identified with the vehicle, although having no authority over the driver, as to be chargeable with any negligence of the proprietors which contrib- uted with the negligence of a stranger to injure the passenger. Al- though this decision is no longer followed in either the English or American courts, 2 with possibly one or two exceptions in the latter, the case stands to-day as a monument to the absurdity of a doctrine founded on the shadow of a principle and carried to such an extreme as to be purely scholastic and eminently unjust. But long prior to the decision in Thorogood v. Bryan, it was well settled in England that as between the common carrier of goods and the shipper, there was such privity of negligence as would prevent the latter from recovering against a third person for injuries to which the negligence of the former contributed. 3 The contract of agency between the shipper and the carrier is per- fect. The carrier's care and control of the goods is absolute. The 2 The Bernina, 12 Prob. Div. 58, affirmed in 13 App. Cas. 1; Little v. Hack- ett, 116 U. S. 366, 6 Sup. Ct. 391. In Chapman v. Railroad Co., 19 N. Y. 341, Johnson, C. J., says: "He was a passenger on the Harlem cars, conducting himself as he lawfully ought, having no control over the train or its manage- ment; on the contrary, bound to submit to the regulations of the company And the directions of their officers. To say that he is chargeable with negli- gence because they have been guilty is plainly not founded on any fact of conduct on his part, but is mere fiction." Webster v. Railroad Co., 38 X. Y. 260; Colegrove v. Railroad Co., 6 Duer, 382, affirmed in 20 N. Y. 492; Bar- rett v. Railroad Co., 45 N. Y. 628; Busch v. Railroad Co., 29 Hun (X. Y.) 112; Harvey v. Railroad Co., 23 X. Y. Wkly. Dig. 198; Bennett v. Transportation Co., 36 X. J. Law, 225; New York, L. E. & W. R. Co. v. Steinbrenner, 47 X. J. Law, 161; Transfer Co. v. Kelly, 36 Ohio St. 86; Town of Albion v. Het- rick, 90 Ind. 545; Wabash, St. L. & P. R. Co. v. Shacklet, 105 111. 364; Cud- dy v. Horn, 46 Mich. 596, 10 X. W. 32; Malmsten v. Railroad Co., 49 Mich. 94, 13 X. W. 373; Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274; Louisville, . & L. R. Co. v. Case's Adm'r, 9 Bush (Ky.) 728; Danville, L. & X. Turnpike Co. v. Stewart, 2 Mete. (Ky.) 119; Philadelphia, W. & B. R. Co. v. Hogeland. 66 Md. 149, 7 Atl. 105; McMahon v. Davidson, 12 Minn. 357 (Gil. 232); Foil- man v. City of Mankato, 35 Minn. 522, 29 X. W. 317; Hillnian v. Xewingtou, 57 Cal. 56; Tompkins v. Railroad Co., 66 Gal. 163, 4 Pac. 1165; Roach v. Rail- road Co., 93 Ga. 785, 21 S. E. 67; Guif, C. & S. F. Ry. Co. v. Pendry, 87 Tex. 553, 29 S. W. 1038. s Vanderplank v. Miller, 1 Moody & M. 169; Arctic Fire Ins. Co. v. Austin, 69 X. Y. 470. 58 CONTRIBUTORY NEGLIGENCE. (Ch. 2 owner himself could not exercise any greater authority than that of the agent in possession. The representation is complete, and the contributory negligence of the carrier should be imputed to the owner of the goods to the extent of depriving him of any remedy against a third party for a loss to which the wrongful act of his agent has con- tributed. 4 22. PASSENGER AND COMMON CARRIER By weight of authority, in the carriage of passengers, the neg- ligence of the carrier contributing with that of a third person to injure plaintiff is not a defense in an action by the latter against the third person. 23. Although the passenger is not so identified with the carrier that the latter's negligence is ipso facto im- puted to him, he is, nevertheless, bound to exercise ordinary care and prudence. CONVERSELY If the negligence of the occupant of a ve- hicle contributes with that of the driver and a third person, the former cannot recover against the lat- ter. 1 The relation of passenger and carrier stands on a different basis, and requires further consideration. The carrier of passengers is .not an insurer of their safe transportation. He has but a partial and incomplete control over them, and is in no sense their representa- tive. The contract is one of limited agency only, and, the conduct of the carrier being beyond the influence and direction of the passen- ger, there is no assignable reason why he should be responsible for it. While, therefore, there is some lack of uniformity in the decisions, it is believed that the weight of authority, and certainly that of reason, * Arctic Fire Ins. Co. v. Austin, 69 N. Y. 470; Duggins v. Watson, 15 Ark. 118; Broadwell v. Swigert, 7 B. Mon. (Ivy.) 39. See cases reviewed in Simp- son v. Hand, 6 Wliart. (Pa.) 311. 22-23. i Beach, Contrib. Neg. (2d Ed.) 115. If the occupant voluntarily rides with driver, not a common carrier, over ground obviously dangerous, he cannot recover against the township. Crescent Tp. v. Anderson, 114 Pa. St. G43, 8 Atl. 379. Riding with back towards driver in approaching well-known rail- road crossing, and failure to look and listen or take any precautions, is con- tributory negligence. Dean v. Railroad Co., 129 Pa. St 514, 18 Atl. 718. 22-23) PASSENGER AND COMMON CARRIER. 59 sustains the proposition that in the carriage of passengers the negli- gence of the carrier, contributing with that of a third person to in- jure plaintiff, is not a defense in an action against the third person.* When the injury by a third person is inflicted on a passenger in a railroad car, the question of actual negligent conduct on his part i& seldom raised, by reason of his entire lack of control over the man- agement of the train. When, however, the conveyance is a carriage or similar vehicle, the circumstances may be such that he is able and bound to exercise some discretion regarding its management. In such cases he is held to the use of such ordinary care and prudence as the circumstances may demand. 3 But where one travels in a vehicle over which he has no control, no relationship of principal and agent exists between him and the owner or driver, and, although he so travels voluntarily, he is not responsible for the negligence of the driver when he himself is not chargeable with negligence.* Other- 2 Chapman v. Railroad Co., 19 X. Y. 341. Vide language of court in this case, section 21, note 2, supra, Danville, L. & X. Turnpike Oo. v. Stewart, 2 Mete. (Ky.) 119; Gulf, C. & S. F. Ry. Co. v. Pendry, 87 Tex. 553, 29 S. W. 1038. See, also, Beach, Contrib. Xeg. (2d Ed.) 114. s Little v. Hackett, 116 U. S. 366, 6 Sup. Ot. 391; Haff v. Railway Co., 14 Fed. 558; The Washington and The Gregory, 9 Wall. 513; Gray v. Railroad Co., 24 Fed. 168; Masterson v. Railroad Co., 84 N. Y. 247; Robinson v. Rail- road Co., 66 X. Y. 11; Dyer v. Railroad Co., 71 X. Y. 228; Smith v. Railroad Co., 38 Hun (X. Y.) 33; Harris v. Uebelhoer, 75 X. Y. 169; Meenagh v. Buck- master, 26 App. Div. 451, 50 X. Y. Supp. 85. But the extreme of this rule was held in Brannen v. Gravel-Road Co., 115 Ind. 115, 17 X. E. 202, where it was said that, unless plaintiff showed that he was not negligent in trying to stop the intoxicated driver, he could not recover. See, however, Town of Knights- town v. Musgrove, 116 Ind. 121, 18 X. E. 452, which distinguishes the former case. * Little v. Hackett, supra; Haff v. Railway Co., supra; Masterson v. Rail- road Co., supra; Dyer v. Railroad Co., supra; Smith v. Railroad Co., supra; Harris v. Uebelhoer, supra; Bennett v. Railroad Co., 133 X. Y. 563, 30 X. E. 1149; Alabama & V. Ry. Oo. v. Davis, 69 Miss. 444, 13 South. 693; Baltimore & O. R. Co. v. State, 79 Md. 335, 29 Atl. 518, following Philadelphia, W. & B. R. Co. v. Hogeland, 66 Md. 149, 7 Atl. 105; Davis v. Guarnieri, 45 Ohio St 470, 15 X. E. 350; Randolph v. O'Riordon, 155 Mass. 331, 29 X. E. 583; Pyle v. Clark, 25 C. C. A. 190, 79 Fed. 744; Lake Shore & M. S. Ry. Co. v. Boyts, 16 Ind. App. 640, 45 X. E. 812; Missouri, K. & T. Ry. Co. of Texas v. Rogers, 91 Tex. 52, 40 S. W. 956; Harper v . Railroad Co., 22 App. Div. 273, 47 X. Y. Supp. 933; Baltimore & O. R. Co. v. Adams, 10 App. D. C. 97; Bryant v. Rail- 60 CONTRIBUTORY NEGLIGENCE. (Ch. 2 wise, however, if the carrier or driver was in fact the agent of the plaintiff, 5 or was incited or encouraged by him in his negligent acts. 6 4. NEGLIGENCE OF HUSBAND IMPUTED TO WIFE In general, in an action by or for the wife, the con- tributory negligence of the husband is not charge- able to her, unless she knowingly adopted or con- curred in his negligent act. road Oo. (Tex. Civ. App.) 46 S. W. 82; Ritger v. City of Milwaukee, 99 Wis. 190, 74 X. W. 815; Robinson v. Navigation Co., 20 C. C. A. 86, 73 Fed. 883; Weldon v. Railroad Co., 3 App. Div. 370, 38 N. Y. Supp. 206; Ouverson v. City of Grafton, 5 N. D. 281, 65 N. W. 676; Cincinnati St. Ry. Co. v. Wright, 54 Ohio St. 181, 43 X. E. 688; Texas & P. Ry. Co. v. Curlin, 13 Tex. Civ. App. 505, 36 S. W. 1003; Roach v. Railroad Co., 93 Ga, 785, 21 S. E. 67; Gulf, C. & S. F. Ry. Co. v. Pendry, 87 Tex. 553, 29 S. W. 1038; Union Pac. R. Co. v. Lapsley's Adm'r, 2 C. C. A. 149, 51 Fed. 174, following Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. 391; Missouri Pac. Ry. Co. v. Texas Pac. Ry. Co., 41 Fed. 316; Whelan v. Railroad Co., 38 Fed. 15. But in Whittaker v. City of Helena, 14 Mont. 124, 35 Pac. 904, and Otis v. Town of Janesville, 47 Wis. 422, 2 X. W. 783, it was held that the driver's negligence was imputed to a volun- tary passenger, and the latter could not recover damages against the city for in- juries caused by city's negligence, where the negligence of the driver contrib- uted to the injury. And in Xew York, where plaintiff occupied seat with driver and had equal knowledge and opportunity to discover the danger, the driver's negligence was imputed to him; but this is clearly within our rule. Brickell v. Railroad Co., 120 X. Y. 290, 24 X. E. 449. In Indiana the inclina- tion is clearly towards imputing the driver's negligence to the passenger. Brannen v. Gravel Rd. Co., 115 Ind. 115, 17 X. E. 202; Town of Knightstown v. Musgrove, 116 Ind. 121, 18 X. E. 452. Also in Iowa, Slater v. Railway Co., 71 Iowa, 209, 32 X. W. 264; but overruled in Xesbit v. Town of Garner, 75 Iowa, 314, 39 X. W. 516. s In Brickell v. Railroad Co., 120 X. Y. 290, 24 X. E. 449, the court says: "The rule that the driver's negligence may not be imputed to the plaintiff should have no application to this case. Such rule is only applicable to cases where the relation of master and servant or principal and agent does not ex- ist, or where the passenger is seated away from the driver, or is separated from the driver by an inclosure, and is without opportunity to discover danger and inform the driver of it. It is no less the duty of the passenger where he has the opportunity to do so than of the driver to learn of danger, and avoid it, if practicable." Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274; Eaton v. Railroad Co., 11 Allen (Mass.) 500; Stevens v. Armstrong, 6 X. Y. 435; Omaha & R. V. Ry. Co. v. Talbot, 48 Xeb. 627, 67 X. W. 599. Stafford v. City of Oskaloosa, 57 Iowa, 749, 11 X. W. 008. 2527) IMPUTED NEGLIGENCE. 61 There is an apparent conflict of authority as to the effect of the- husband's contributory negligence on the wife's right of action against a third person. Where the rights of the wife are still limit- ed by the rules of the common law, it is apprehended that the con- tributory negligence of the husband would bar the wife's recovery to- the same extent which it would bar his own in an action to recover for loss of services. 1 But in those states where the wife can bring, such an action in her own name, and recover damages for her separate use, it seems that the husband's negligence is not chargeable to her unless she knowingly adopts or concurs in his negligent conduct, 2 or makes him her agent. 3 IMPUTED NEGLIGENCE. 25. The negligence of a third person may prevent a re- covery by the plaintiff -when the relation is such that, in law, the negligent conduct of the former is imputed to the latter. 24. i McFadden v. Railway Co., 87 Cal. 464, 25 Pac. 681; Borough of Xanticoke v. Warne, 106 Pa. St 373; Shear. & R. Xeg. (4th Ed.) 67; Honey v. Railway Co., 59 Fed. 423. 2 Yahn v. City of Ottuinwa, 60 Iowa, 429, 15 N. W. 257; Xesbit v. Town of Garner, 75 Iowa, 314, 39 X. W. 516; Peck v. Railroad Co., 50 Conn. 379. In Shef- field v. Telephone Co., 36 Fed. 164, and Shaw v. Craft, 37 Fed. 317, the United. States court holds that the husband's "contributory" negligence will not de- leat the wife's recovery if defendant's negligence "directly" contributed to the injury. But see Honey v. Railway Oo., 59 Fed. 423, where it is held that to render the contributory negligence of a wife, regarded as the agent or servant of her husband, imputable to him, the circumstances must be such that he would be liable for her negligent act if it had resulted in injury to a third person. Flori v. City of St. Louis, 3 Mo. App. 231; Hedges v. City of Kansas, 18 Mo. App. 62; Plate v. City of Cohoes, 24 Hun (X. Y.) 101, affirmed in 89' N. Y. 219; Street v. Inhabitants of Holyoke, 105 Mass. 82; Louisville, X. A. & C. Ry. Co. v. Creek, 130 Ind. 139, 29 X. E. 481; Lake Shore & M. S. Ry. Co. v. Mclntosh, 140 Ind. 201, 38 X. E. 476; Galveston, H. & S. A. Ry. Co. v. Ku- tac, 78 Tex. 473, 13 S. W. 327; Reading Tp. v. Telfer, 57 Kan. 798, 48 Pac. 134; Munger v. City of Sedalia, 66 Mo. App. 629; Finley v. Railway Co., 71 Minn. 471, 74 X. W. 174. In Carlisle v. Town of Sheldon, 38 Vt. 440, the court follows the reasoning in Thorogood v. Bryan, and imputes the husband's neg- ligence to the wife, ipsa relatione. s Davis v. Guarnieri, 45 Ohio St 470, 15 X. E. 350; Honey v. Railway Co.,. 59 Fed. 423. See section 24, note 2, supra. 62 CONTRIBUTORY NEGLIGENCE. (Ch. 2 26. In an action by the parent in his own behalf for in- juries to his minor child, the contributory negli- gence of the parent or of the infant is a good de- fense. 27. In an action in behalf of the child for injuries suffered by him (a) The failure on his part to exercise the degree of care reasonably to be expected in the circumstances of children of his age, if it contributes to the injury, is a defense. (b) If the negligence of the parent contributes to the in- jury, the weight of authority and reason is opposed to imputing his negligence to the infant. When the action is for the benefit of the parent, it is founded on the quasi relation of master and servant, the damnum being the tech- nical loss of service. In theory, therefore, this class of actions does not properly fall under this subdivision. It is, however, considered at this time for the purpose of emphasizing the danger of confusing it with those cases where the personal rights of the infant constitute the issue. When the parent is the beneficiary of the action, the ordi- nary rules of contributory negligence apply to his conduct, 1 and, if the contributory negligence of the child is such as would bar an 25-27. i Glassey v. Railroad Co., 57 Pa. St. 172; Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 670; Bellefontaine & I. R. Co. v. Same, 18 Ohio St. 399. In the last two cases the actions were on the same state of facts, for the benefit of the parent and child, respectively. In the former the contributory negligence of the parent was held a bar, and in the latter was held no de- fense. Pittsburg, A. & M. Ry. Co. v. Pearson, 72 Pa. St. 169; Philadelphia & E. R. Co. v. Long, 75 Pa. St. 257; Isabel v. Railroad Go., 60 Mo. 475; Daley v. Railroad Co., 26 Conn. 591; Albertson v. Railroad Co., 48 Iowa, 292; Pitts- burgh, Ft. W. & C. Ry. Co. v. Vining's Adm'r, 27 Ind. 513; City of Chicago v. Major, 18 111. 349; Louisville & P. Canal Co. v. Murphy, 9 Bush (Ky.) 522; Williams v. Railroad Co., 60 Tex. 205; Baltimore & O. R. Co. v. State, 30 Md. 47; Walters v. Railroad Co., 41 Iowa, 71; Bamberger v. Railway Co., 95 Tenn. 18, 31 S. W. 163; Spokane & P. Ry. Co. v. Holt (Idaho) 40 Pac. 56; City of Pe- kin v. McMahon, 154 111. 141, 39 X. E. 484; Xewdoll v. Young. 80 Hun, 364, 50 N. Y. Supp. 84; Chicago City Ry. Co. v. Wilcox, 138 111. 370, 27 X. E. 899. JBut see Wright v. Railroad Co., 4 Allen (Mass.) 283. 25-27) IMPUTED NEGLIGENCE. 63 action for his own benefit, it will likewise bar the action of the par- ent. 2 Degree of Care Required of the Parent. In examining the conduct of the parent to determine whether he has been negligent in the care of the child, reference must be had not only to the age of the child, and the circumstances attending the acci- dent, but to the parent's station and occupation in life, and his gen- eral ability to place safeguards about his children. 3 To constitute a defense to his action, it must appear that the parent was actually in fault, 4 and that the fault clearly contributed to the injury. 5 To al- 2 Kennard v. Burton, 25 Me. 39; Burke v. Railroad Co., 49 Barb. (N. Y.) 529; Honegsberger v. Railroad Co., 2 Abb. Dec. (N. Y.) 378; Fitzgerald v. Railway Co., 29 Minn. 336, 13 N. W. 168; Gilligan v. Railroad Co., 1 E. D. Smith (X. Y.) 453; Chicago & G. E. Ry. Co. v. Harney, 28 Ind. 28; St. Louis & S. F. Ry. Co. v. Christian, 8 Tex. Civ. App. 246, 27 S. W. 932. Per contra, Ihl v. Railroad Co., 47 N. Y. 317. s In Kay v. Railroad Co., 65 Pa. St. 277, Agnew, J., says: "But here a mother toiling for daily bread, and having done the best she could, in the midst of her necessary employment, loses sight of her child for an instant, and it strays upon the track, with no means to provide a servant for her child. Why should the necessities of her position in life attach to the child, and cover it with blame? When injured by positive negligence, why should it be without redress?" Philadelphia & R. R. Co. v. Long, 75 Pa. St. 257; Pittsburg, A. & M. Ry. Co. v. Pearson, 72 Pa. St. 169; Isabel v. Railroad Co., 60 Mo. 475; Frick v. Railway Co., 75 Mo. 542; O'Flaherty v. Railroad Co., 45 Mo. 70; Walters v. Railroad Co., 41 Iowa, 71; Hoppe v. Railway Co., 61 W T is. 357, 21 N. W. 227; Hewitt v. Railway Co., 167 Mass. 483, 46 N. E. 106. 4 McKenna v. Bedstead Co., 12 Misc. Rep. 485, 33 N. Y. Supp. 684, where a child two years old ran into the street without the knowledge of the mother, who was engaged in her household duties; and in Hedin v. Railway Co., 26 Or. 155, 37 Pac. 540, where a child three years old was sent out to play un- der the care of a nine year old brother, and was injured while crossing the street alone, the question of the contributory negligence of the parent was held properly submitted to the jury. See, also, cases cited in section 27, note 3, supra. Gunn v. Railroad Co., 37 W. Va. 421, 16 S. E. 628; Alabama G. S. R. Co. v. Dobbs, 101 Ala. 219, 12 South. 770; Weitzman v. Railroad Co., 33 App. Div. 585, 53 N. Y. Supp. 905; Wise v. Morgan (Tenn. Sup.) 48 S. W. 971; Trow v. Thomas, 70 Vt 580, 41 Atl. 652; Ploof v. Traction Co., 70 Vt. 509, 41 Atl. 1017. s The causal connection between plaintiff's negligence and the injury must always be shown. See ante, section 8, note 1, and cases cited. 64: CONTRIBUTORY NEGLIGENCE. (Ch. 2 low a child to go unattended on the street is not negligence per se,* and the test of conduct would seem to be whether the parent took that degree of care of his child which a reasonably prudent parent of the same class and means would ordinarily use in similar circum- stances. 7 Negligence of child. In applying the rules of contributory negligence to the conduct of very small children, a problem full of difficulties is presented. To re- quire of a mere infant any degree of judgment or discretion in avoid- ing danger is manifestly absurd; and, on the other hand, to hold a third person solely responsible for an injury to which the negligence of the parent has contributed at least equally with his own, is an ap- parent injustice. Yet decisions are not lacking where theTmerest babies have been held, in law, bound) to exercise the same' judgment and care in avoiding danger which would be required of an adult; and the ex- treme doctrine of imputed negligence, first enunciated in the cele- brated case of Hartfield v. Roper, 8 is to-day followed in many of our state courts, although its rigor has been somewhat modified. The theory of this case is concisely stated by Mason, J., in the later case of Mangam v. Brooklyn R. Co. : 9 "An infant, in its first years, is not sui juris. It belongs to another, to whom, discretion in the care of its person is exclusively confided. The custody of the infant of tender years is confided by law to its parents, or those standing in loco parentis, and, not having that discretion necessary for personal protection, the parent is held, in law, to exercise it for him, and in cases of personal injuries received from the negligence of others the law imputes to the infant the negligence of the parents. The infant e Riley v. Transit Co., 10 Utah, 428, 37 Pac. 681; McVee v. City of Water- town, 92 Hun, 306, 36 X. Y. Supp. 870; Bergen County Traction Co. v. Heit- man's Adm'r (N. J. Err. & App.) 40 Atl. 661; Ehrmann v. Railroad Co., 23 App. Div. 21, 48 N. Y. Supp. 379; Karahuta v. Traction Co., 6 Pa. Super. Ct. 319. ' Philadelphia & R. R. Co. v. Long, 75 Pa. St. 257; Ihl v. Railroad Co., 47 X. Y. 317; Chicago & A. R. Co. v. Gregory, 58 111. 226; Karr v. Parks. 40 Cal. 188; Metcalfe v. Railway Co., 12 App. Div. 147, 42 N. Y. Supp. 661; Gunn v. Railroad Co., 42 W. Va, 676, 26 S. E. 546; Fox v. Railway Co., 118 Cal. 55, 50 Pac. 25; McNeil v. Ice Co. (Mass.) 54 N. E. 257. s 21 Wend. (N. Y.) 615. 38 X. Y. 455. 28) IMPUTED NEGLIGENCE. 65 being non sui juris, and having a keeper, in law, to whose discretion, in the care of his person, he is confided, his acts, as regards third per- sons, must be held, in law, the act of the infant; his negligence the negligence of the infant." But even in states where the decision is still followed the severity of the rule has been greatly softened in later decisions by insisting that the conduct of the child must first be shown to be a proximate cause of his injury, and by holding, where this does not appear, that the negligence of the parent in permitting, him to be on the street was remote and immaterial. 10 SAME DEGREE OF CARE REQUIRED OF A CHILD. 28. The degree of care required of a child is that reason- ably to be expected of children of a like age in similar circumstances; but in their earliest years they are incapable of discretion, and personal neg- ligence cannot then be predicated of their conduct. At what exact age a child ceases to be non sui juris, and acquires a capacity for any degree of thoughtful action, is not determined, but it is now generally held that in their earliest years they are entirely without such capacity, and consequently incapable of legal negli- gence. 1 Unless, however, the child is so young as to clearly preclude 10 Lynch v. Smith, 104 Mass. 52; and in this case the court further said that, even if his parents were negligent in permitting him, a child 4 years- and 7 months old, to cross the street alone, their negligence was not contribu- tory, and he may recover, if in crossing he did no act which prudence would have forbidden, and omitted no act which prudence would have dictated, what- ever was his physical or intellectual capacity. See, also, cases cited in sec- tion 27, notes 4 and 5, supra. 28. i A child under three years of age is prima facie incapable of negligence, Barnes v. Railroad Co., 47 La. Ann. 1218, 17 South. 782. In North Penn- sylvania R. Co. v. Mahoney, 57 Pa. St. 187, it was broadly held that contribu- tory negligence was impossible in any child of "tender years." Presurnptioa as to age of a "little child," Bottoms v. Railroad Co., 114 X. C. 699, 19 S. E. 730;. Wiley v. Railroad Co., 76 Hun, 29, 27 N. Y. Supp. 722; Gunn v. Rail- road Co., 42 W. Va. 676, 26 S. E. 546; Missouri Pac. Ry. Co. v. Prewitt (Kan. App.) 51 Pac. 923; South Covington & C. St Ry. Co. v. Herrklotz (Ky.) 47 S. W. 265; Rice v. Railroad Co. (La.) 24 South. 791; Wise v. Morgan (Teun. Sup.> 48 S. W. 971; McToy v. Oakes, 91 Wis. 214, 64 N. W. 748; Merritt v. Hjpen- BAR.NEG. 5 66 CONTRr UTORY NEGLIGENCE. (Ch. 2 the supposition of any degree of rational conduct, it is generally left to the jury to determine the measure of care that he should use. 2 But when he is either so old or so young as to leave no room for doubt, it is the duty of the court to rule as to his capacity; 3 and courts have varyingly extended the period in which, as a matter of law, a child is non sui juris, from the time of his birth to the age of 7 years, 4 while in Indiana it has even been held that at 8 years his capacity is a question for the jury. 6 stal, 25 Can. Sup. CL 150; Barnes v. Railroad Co., 47 La. Ann. 1218, 17 South. 782. 2 Western & A. R. Co. v. Young, 81 Ga. 397, 7 S. E. 912; McCarthy v. Rail- way Co., 92 Mo. 536, 4 S. W. 516; Silberstein v. Railroad Co., 52 Hun, 611, 4 X. Y. Supp. 843; Bridger v. Railroad Co., 25 S. C. 24; Wilson v. Railroad Co., 132 Pa, St. 27, 18 Atl. 1087; StrawbrJdge v. Bradford, 128 Pa. St. 200, 18 Atl. 34<>; Dorman v. Railroad Co. (City Ct. Brook.) 5 X. Y. Supp. 769; Chi- cago City Ry. Co. v. Wilcox, 138 111. 370, 27 X. E. 899; Stone v. Railroad Co., 115 X. Y. 104, 21 X. E. 712; Connolly v. Ice Co., 114 X. Y. 104, 21 X. E. 101; Whalen v. Railway Co., 75 Wis. 654, 44 X. W. 849; Dealey v. Muller, 149 Mass. 432, 21 X. E. 763; Consolidated Traction Co. v. Scott, 58 X. J. Law, 682, 34 Atl. 1094; Wise v. Morgan (Tenn. Sup.) 48 S. W. 971; Penny v. Railway Co., 7 App. Div. 595, 40 X. Y. Supp. 172. sxagle v. Railroad Co., 88 Pa. St. 35, where Paxson, J., said: "At what age, then, must an infant's responsibility for negligence be presumed to com- mence? This question cannot be answered by referring it to the jury. That would furnish us with no rule whatever. It would give us a mere shifting standard, affected by the sympathies or prejudices of the jury in each par- ticular case. One jury would fix the period of responsibility at 14, and an- other at 20 or 21. This is not a question of fact for the jury; it is a ques- tion of law for the court." Tucker v. Railroad Co., 124 X. Y. 308, 26 X. E. 916. * Toledo, W. & W. Ry. Co. v. Grable, 88 111. 441; Callahan v. Bean, 9 Allen (Mass.) 401; Evausville & C. R. Co. v. Wolf, 59 Ind. 89; Jones v. Railroad Co., 36 Hun (X. Y.) 115; Ryan v. Railroad Co., 37 Hun (X. Y.) 186; Kreig v. Wells, 1 E. D. Smith (X. Y.) 74; Central Trust Co. of Xew York v. Railway o., 31 Fed. 246; Moynihan v. Whidden, 143 Mass. 287, 9 X. E. 645; O'Fla- herty v. Railroad Co., 45 Mo. 70; Mangaru v. Railroad Co., 38 X. Y. 455; Mas- check v. Railroad Co., 3 Mo. App. 600; Pittsburg, A. & M. Pass. Ry. Co. v. Caldwell, 74 Pa. St. 421; Jeffersonville, M. & I. R. Co. v. Bowen, 40 Ind. 54.",; McGarry v. Loomis, 63 X. Y. 104; Lehman v. City of Brooklyn, 29 Barb. (X. Y.) 234; Gavin v. City of Chicago, 97 111. 66; Bay Shore R. Co. v. Han-is. <;7 Ala. 6; Morgan v. Bridge Co., 5 Dill. 96, Fed. Cas. Xo. 9.802; Frick v. Rail- * Louisville, X. A. & C. Ry. Co. v. Sears, 11 Ind. App. 654, 3S X. E. 837. 28) IMPUTED NEGLIGENCE. 67 When it has been decided that the infant was possessed of some capacity to avoid danger, the degree of care he should be required to exercise in the circumstances of the particular case is always a ques- tion for the jury, 6 under proper instructions to the effect that his con- duct should be guided by such prudence and discretion only as is rea- sonably to be expected of children of the same age in similar circum- stances. 7 Nor does this apparent curtailing of the law of contribu- way Co., 75 Mo. 542; City of Chicago v. Starr, 42 111. 174; Meeks v. Railroad o., 52 Cal. 602; Gillespie v. McGowan, 100 Pa. St 144; Maekey v. City of Vicksburg, 64 Miss. 777, 2 South. 178; Westbrook v. Railroad Co., G6 Miss. 560, 6 South. 321; City of Vicksburg v. McLain, 67 Miss. 4, 6 South. 774; City of Pekin v. McMahon, 154 111. 141, 39 N. E. 484; Kentucky Hotel Co. v. Camp, 97 Ky. 424, 30 S. W. 1010; Pierce v. Conners, 20 Colo. 178, 37 Pac. 721; City of Pekin v. McMahon, 154 111. 141, 39 X. E. 484, where it was held that a child of more than 7 years ceases to be non sui juris. e Mitchell v. Motor Co., 9 Wash. 120, 37 Pac. 341. See, also, cases cited in section 28, note 2, supra; Geibel v. Elwell, 19 App. Div. 285, 46 N. Y. Supp. 76; Price v. Water Co.. 58 Kan. 551, 50 Pac. 450; Thompson v. Rapid-Transit Co., 16 Utah, 281, 52 Pac. 92; Walters v. Light Co. (Colo. App.) 54 Pac. .960; Biggs v. Barb-Wire Co. (Kan. Sup.) 56 Pac. 4; Atchison, T. & S. F. R. Co. v. Roemer, 59 111. App. 93; Kite-hell v. Railroad Co., 6 App. Div. 99, 39 X. Y. Supp. 741; Schmidt v. Railway Co., 23 W T is. 186; Kerr v. Forgue, 54 111. 482; Philadelphia & R. R. Co. v. Spearen, 47 Pa. St. 300; Boland v. Railroa(J Co., 36 Mo. 484; Oakland Ry. Co. v. Fielding, 48 Pa. St. 320; Philadelphia City Pass. R. Co. v. Hassard, 75 Pa. St. 367; Manly v. Railroad Co., 74 X. C. r,.".-; Mobile & M. R. Co. v. Crenshaw, 65 Ala. 566; Casey v. Railroad Co., 6 Abb. X. C. (X. Y.) 104; Byrne v. Railroad Co., 83 N. Y. 620; Galveston, H. & H. Ry. Co. v. Moore, 59 Tex. 64; Houston & T. C. Ry. Co. v. Simpson, 60 Tex. 103; Meibus v. Dodge, 38 Wis. 300; Government St. R. Co. v. Hanlon, 53 Ala. 70; Baltimore City Pass. R. Co. v. McDonnell, 43 Md. 534; McMillan v. Railroad Co., 46 Iowa, 231; East Saginaw City Ry. Co. v. Bohn, 27 Mich. 503. T Springfield Consol. Ry. Co. v. Welsch, 155 111. 511, 40 X. E. 1034; Wabash R. Co. v. Jones, 53 111. App. 125; Hayes v. Xorcross, 162 Mass. 546, 39 X. E. 282. General rule, Kentucky Hotel Co. v. Camp, 97 Ky. 424, 30 S. W. 1010; Pierce v. Conners, 20 Colo. 178, 37 Pac. 721; San Antonio & A. P. Ry. Co. v. Jazo (Tex. Civ. App.) 25 S. W. 712; Texas & P. Ry. Co. v. Mother, 5 Tex. Civ. App. 87, 24 S. W. 79; Chicago, B. & Q. R. Co. v. Grablin, 38 Xeb. 90, 56 X. W T . 796; Wiswell v. Doyle, 160 Mass. 42, 35 N. E. 107; Central Railroad & Bank- ing Co. v. Phillips, 91 Ga. 526, 17 S. E. 952; Brown v. City of Syracuse, 77 Hun, 411, 28 X. Y. Supp. 792; Omaha & R. V. Ry. Co. v. Morgan (Xeb.) 59 X. W. 81; Mitchell v. Motor Co., 9 Wash. 120, 37 Pac. 341; Washington & G. Ry. o. v. Gladrnon, 15 Wall. 401; Sioux City & P. R. Co. v. Stout, 17 Wall. 657; Me- 68 CONTRIBUTORY NEGLIGENCE. (Ch. 2 tory negligence work the injustice and hardship on the defendant that is sometimes claimed. In contending against this alleged limitation of the doctrine, it would seem that the obligation resting on the plain- tiff to establish a positive breach of duty by the defendant is not in- frequently overlooked. So notable a jurist as Alderson, B., in an opinion involving this question, says: "The negligence, in truth, i& attributable to the parent who permits the child to be at large. It seems strange that a person who rides in his carriage without a serv- ant, if a child receives an injury by getting up behind for the purpose of having a ride, should be liable for the injury." 8 It is evident that in the case supposed there is damnum absque injuria. If the driver of a carriage, conducting himself lawfully, and being guilty of no breach of duty, becomes the unwitting instrument of harm to another person, whether infant or adult, he is without legal fault, and no- action can be founded on his conduct. Thus, in a recent case, de- fendant's grocery wagon is being driven along a well-traveled street at a speed of about five or six miles an hour, with ordinary care, when a boy of 5 years, with his mother's permission, starts to cross the street. While the wagon is but a few feet distant, and close to the curb, he darts quickly in front of it, and is run over in broad daylight. Govern v. Railroad Co., 67 N. Y. 417; Ihl v. Railroad Co., 47 N. Y. 317; Rauch v. Lloyd, 31 Pa, St. 358; Gray v. Scott, 66 Pa. St. 345; Robinson v. Cone, 22 Vt. 213; Lynch v. Smith, 104 Mass. 52; O'Connor v. Railroad Co., 135 Mass. 352; Birge v. Gardner, 19 Conn. 507; Bronson v. Town of Southbury, 37 Conn. 199; Baltimore & O. R. Co. v. State, 30 Md. 47; Galveston, H. & S. A. Ry_ Oo. v. dark (Tex. Civ. App.) 51 S. W. 276; Kinchlow v. Elevator Co., 57 Kan. 374, 46 Pac. 703; Frauenthal v. Gaslight Co., 67 Mo. App. 1; Weldon v. Rail- road Co. (Del. Sup.) 43 Atl. 156; Baltimore & P. R. Co. v. Webster, 6 App. D. C. 182; Calumet Electric St. Ry. Co. v. Van Pelt, 68 111. App. 582; Texas & P. Ry. Co. v. Phillips, 91 Tex. 278, 42 S. W. 852; Smith v. Railway Co., 90 Fed. 783; Western & A. R. Co. v. Rogers, 104 Ga. 224, 30 S. E. 804; Felton v. Aubrey, 20 C. C. A. 436, 74 Fed. 350; Georgia, C. & N. Ry. Oo. v. Watkins, 97 Ga. 381, 24 S. E. 34; Norton v. Volzke, 158 111. 402, 41 N. E. 1085; Baltimore & O. S. W. Ry. Co. v. Then, 159 111. 535, 42 N. E. 971; Van Natta v. Power Co.,. 133 Mo. 13, 34 S. W. 505; Cincinnati St. Ry. Co. v. Wright, 54 Ohio St. 181, 43 N. E. 688; Kucera v. Lumber Co., 91 Wis. 637, 65 N. W. 374; Springfield Consol. Ry. Co. v. Welsch, 155 111. 511, 40 N. E. 1034; Payne v. Railroad Co.,. 129 Mo. 405, 31 S. W. 885; Lynch v. Nurdin, 1 Q. B. 29. s Lygo v. Newbold, 9 Exch. 302. 28) IMPUTED NEGLIGENCE. 69 Even at so young an age. he was held in fault, and not entitled to re- cover. 9 ^Machines and Places Attractive to Children. But where dangerous instrumentalities, in their nature attractive to children, are left in an exposed and accessible place where children are likely to be, the law is well settled that the proprietor cannot shield himself in an action for injuries caused thereby to an infant by showing that the machine or article was not in itself dangerous, and would have done no harm if the plaintiff had not meddled or tampered with it. The turntable cases furnish the most familiar illustration of this principle. 10 In Keffe v. Milwaukee & St. P. By. Co., 11 which is a type of this class of cases, the defendant left its turntable, situ- ated in a public place near the home of plaintiff, unfastened and un- guarded. It revolved easily, and could be moved even by small chil- dren. Plaintiff, a child of 7 years, was injured while playing upon and revolving it, and it was held that he could recover against the railroad company, the court citing with approval the rule established in Sweeny v. Old Colony & N. R. Co. 12 that an owner or occupant of premises is bound to keep them 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 im- plied, by which they have been led to enter thereon. The court fur- ther observes that what an express invitation would be to an adult the temptation of an attractive plaything is to a child of tender years. Hayes v. Xorcross, 162 Mass. 546, 39 N. E. 282. 10 Railroad Co. v. Stout, 17 Wall. 657; Keffe v. Railroad Co., 21 Minn. 207; Kerr v. Forgue, 54 111. 482; Xagel v. Railway Co., 75 Mo. 653; Evansich v. ' Railway Co., 57 Tex. 126; Kansas Cent. Ry. Oo. v. Fitzsimmons, 22 Kan. 686; Koons v. Railroad Co., 65 Mo. 592; Gulf, C. & S. F. Ry. Co. v. Styron, 66 Tex. 421, 1 S. W. 161; Bridger v. Railroad Co., 27 S. C. 456, 3 S. E. 860; Fer- guson v. Railway Co., 77 Ga. 102; Gulf, C. & S. F. Ry. Co. v. McWhirter, 77 Tex. 356, 14 S. W. 20. Turntables: Carson v. Railway Co., 96 Iowa, 583, 65 N. W. 831; Merryman v. Railway Co., 85 Iowa, 634, 52 N. W. 545. St. Louis, V. & T. R. Co. v. Bell, SI 111. 76, does not clearly follow the rule laid down in the above decisions, but in this case the isolation of the position of the turntable was material in determining defendant's negligence. Walsh v. Rail- road Co., 145 X. Y. 301, 39 X. E. 1068, a recent Xew York case, is opposed to general rule as above laid down. 11 21 Minn. 207. 12 10 Allen (.Mass.) 368. 70 CONTRIBUTORY NEGLIGENCE. (Ch. 2 These cases in no way disturb the doctrine of contributory negligence, but mark a consistent and humane adaptation of the well-settled law. Curiosity, the love of investigation, is as strong in children as in adults, but is not, in them, coupled with mature discretion and judg- ment; and if, in gratifying this curiosity, using such intelligence and care as^their years may furnish, they are injured by an unfastened, unguarded, and dangerous machine, their conduct is not negligent, and cannot prevent their recovery. 18 The distinction between the conduct of children in these cases in going upon and "meddling" with the property of defendant and that of a voluntary trespasser is this: That the children are attracted and induced to go upon de- fendant's property by the defendant's own conduct, the danger being hidden, and in the nature of a trap. 14 Same Negligence of the Parent not Imputed to the Child. In an action for the benefit of the child for injuries negligently caused by a stranger, the negligence of the parent or custodian is not imputed to the infant, except in California, 15 Indiana, 16 Kansas, 17 Maine, 18 Maryland, 19 Massachusetts, 20 Minnesota, 21 and New York. 22 13 The English cases on this proposition are conflicting, and leave the mat- ter in doubt in their courts. Lynch v. Nurdin, 1 Q. B. 29; Hughes v. Macfie, 2 Hurl. & C. 744; Mangan v. Atterton, L. R. 1 Exch. 230. 14 Keffe v. Railway Co., 21 Minn. 207, 210. IB Karr v. Parks, 40 Cal. 188; Meeks v. Railroad Co., 52 Cal. 602. is Pittsburgh, Ft. W. & C. Ry. Co. v. Vining's Adrn'r, 27 Ind. 513; although the negligence of his custodians cannot be imputed to a child (eight years). having capacity to exercise discretion in his own behalf, Louisville, N. A. & C. Ry. Co. v. Sears, 11 Ind. App. 654, 38 N. E. 837; City of Evansville v. Senhenn, 151 Ind. 42, 47 N. E. 634; MeXamara v. Beck (Ind. App.) 52 N. E. 707; City of Jeffersonville v. McHenry (Ind. App.) 53 N. E. 183. IT Missouri, K. & T. Ry. Co. v. Shockman, 59 Kan. 774, 52 Pac. 446; Union Pac. Ry. Co. v. Young, 57 Kan. 168, 45 Pac. 580; Atchison, T. & S. F. R. Co. v. Smith, 28 Kan. 541; Smith v. Railroad Co., 25 Kan. 738. is Leslie v. City of Lewiston, 62 Me. 468; Brown v. Railway Co., 58 Me. 384. is McMahon v. Railway Co., 39 Md. 439. 20 Casey v. Smith, 152 Mass. 294, 25 N. E. 734; Lynch v. Smith, 104 Mass. 52; Gibbons v. Williams, 135 Mass, 333. 21 Fitzgerald v. Railway Co., 29 Minn. 336, 13 N. W. 168. 22 Hartfield v. Roper, 21 Wend. 615; McGarry v. Loomis, 63 X. Y. 104; Low- ery v. Ice Co., 26 Misc. Rep. 163, 55 N. Y. Supp. 707. The imputation of the parents' negligence is denied in the following states: ALABAMA. Government St. R. Co. v. Hanlon, 53 Ala. 70; ARKANSAS, St. Louis, I. M. & S. Ry. Co. v. 28) IMPUTED NEGLIGENCE. 71 In the states named, the doctrine of Hartfield v. Koper, 23 is followed with varying consistency, but with a tendency to somewhat abate its harshness. In Maryland it has been held that if, by the exercise of ordinary care, the defendant could have avoided the injury, the neglect of the parents will not prevent recovery by a child non sui juris; 24 also, in another case, 25 it was left to the jury to determine whether a child of 5 years and 9 months had acted with the degree of care and caution in the circumstances which might reasonably be expected from a child of his age and intelligence. In Massachusetts the courts have so reasonably and leniently considered the conduct of both parent 26 and child 27 in determining the question of their contributory negligence as to materially soften the rigor of the rule. Rexroad, 26 S. W. 1037; CONNECTICUT, Birge v. Gardner, 19 Conn. 506; GEORGIA, Ferguson v. Railway Co., 77 Ga. 102; Atlanta & C. Air-Line Ry. Co. v. Gravitt, 93 Ga. 300. 20 S. E. 550; ILLINOIS, Chicago City Ry. Co. v. Wilcox, 138 111. 370, 27 N. E. 899; Louisville & St. L. Consol. R. Co. v. Gobin, 52 111. App. 565; IOWA, Wymore v. Mahaska Co., 78 Iowa, 396. 43 N. W. 264; KENTUCKY, South Covington & C. St. Ry. Co. v. Herrklotz, 47 S. W. 2G5; LOUISIANA, Westerfield v. Levis, 43 La, Ann. 63, 9 South. 52; MICHIGAN, Power v. Harlow. 57 Mich. 107, 23 N. W. 606; Shippy v. Vil- lage of Au Sable, 85 Mich. 280, 48 N. W. 584; MISSISSIPPI, Westbrook v. Railroad Co., 66 Miss. 560, 6 South. 321; MISSOURI. Winters v. Railway Co., 99 Mo. 509, 12 S. W. 652; NEBRASKA, Huff v. Aines, 16 Neb. 139, 19 N. W. 023: NEW HAMPSHIRE, Bisaillon v. Blood. 64 N. H. 565, 15 Atl. 147; NEW JERSEY, Newman v. Railroad Co., 52 N. J. Law, 446, 19 Atl. 1102; NORTH CAROLINA, Bottoms v. Railroad Co., 114 N. (J. 099, 19 S. E. 730; OHIO, Davis v. Guarnieri, 45 Ohio St. 470, 15 N. E. 350; PENNSYLVANIA, North Pennsylvania R. Co. v. Mahoney, 57 Pa. St. loV ; Philadelphia & R. R. Co. v. Long, 75 Pa. St. 257; TEXAS, Gaiveston, H. & H. Ry. Co. v. Moore, 59 Tex. 64; Texas & P. Ry. Co. v. Fletcher, b Tex. Civ. App. 736, 26 S. W. 446; VERMONT. Robinson v. Cone. 22 Vt. 2i3; Ploof v. Traction Co., 69 Vt. 509, 41 Atl. 1017; VIRGINIA, Norfolk & P. R. Co. v. Ormsby, 27 Grat. 455; Norfolk & W. R. Co. v. Groseclose's Adm'r, 88 Va, 267, 13 S. E. 4.-,4: WASHINGTON, Roth v. Depot Co., 13 Wash. 525, 43 Pac. 641; WEST VIRGINIA, Dicken v. Coal Co., 41 W. Va. 511. 23 S. E. 582. 23 21 Wend. (N. Y.) 615. 24 Baltimore City Pass. R. Co. v. McDonnell, 43 Md. 534. 25 McMahon v. Railroad Co., 39 Md. 439. 2c Bliss v. South Hadley. 145 Mass. 91, 13 N. E. 352; Marsland v. Murray, 148 Mass. 91, 18 N. E. 680; Slattery v. O'Counell, 153 Mass. 94, 26 N. E. 430; 2- Mnttey v. Machine Co., 140 Mass. 337, 4 X E. 575; Lynch v. Smith, 104 Mass. 52, 72 CONTRIBUTORY NEGLIGENCE. (Ch. 2 Same Limitation of the New York Rule. As the so-called "New York Rule," having its inception in Hartfleld v. Roper, 28 continues to hold its place in that and several other states, its limitations in decided cases should be carefully observed. Re- stated, that rule holds that when a child, too young to be sui juris, fails to exercise the degree of care to be expected of an adult in simi- lar circumstances, the negligence of its parents, or those in loco parentis, is imputed to it. Although, in theory, this doctrine applies whenever a child is negligently exposed to harm by its custodian, in the majority of actual cases where it has been enforced very young- children have been allowed to run abroad and wander into places of danger without suitable attendants. Moreover, it may be fairly said that the full application of the principle is now restricted to cases where the child is subjected, through the negligence of the parent, to such a degree of exposure and risk as an adult could not encounter voluntarily without being guilty of contributory negligence. Thus, if a little child is permitted by its parent to cross a much-traveled street, where it would be imprudent for an adult to attempt to pass, he cannot recover for injuries inflicted by the negligent driving of a carriage. And the converse of this proposition is equally true. If the conduct of the child is marked by no act or omission which would indicate a lack of prudence in an adult, the fact that his parents were grossly negligent in allowing him to be unattended on the street would not affect his right to recover for injuries negligently inflicted on him by a stranger. 29 In Ihl v. Forty-Second St. & G. S. F. R. Co. 30 a child of 3 years was sent across defendant's track, unattended ex- cept by a 9 year old child, and was struck by a car and killed. It was held by the appellate court that this was not per se such negligence as would defeat a recovery. If the deceased, it was ruled, exercised due care, and the injury was caused solely by the negligence of defend- ant's driver, the defendant was liable, without regard to the question Wiswell v. Doyle, 160 Mass. 42, 35 N. E. 107; Creed v. Kendall, 156 Mass. 291, 31 N. E. 6; Mulligan v. Curtis, 100 Mass. 512; Lynch v. Smith, 104 Mass. 52. 28 21 Wend. 615. aoMcGarry v. Loomis, 63 X. Y. 104; Ihl v. Railroad Co., 47 X. Y. 317; O'Brien v. McGlinchy, 68 Me. 552. o 47 N. Y. 317. 29 IMPUTED NEGLIGENCE. 73 whether it was negligence in the parents to let the child go with so young an attendant. SAME LUNATICS AND IDIOTS. 29. In general, the contributory negligence of lunatics and others non compos mentis is determined by the same principles that are applied to the conduct of children. In considering the conduct of lunatics and their custodians, as affecting their right to recover for injuries negligently inflicted on them by strangers, the same general principles apply as in the case of children. 1 And as the degree of care required of children varies ac- cording to their age, so more prudence is expected of one whose mind is only slightly clouded than of one who is entirely bereft of rea- son. As the mental condition of the lunatic is not ordinarily dis- covered by his appearance, the public is not put on its guard to the same extent as with children, whose stature and movements at once proclaim their youth and immature faculties. 2 For this reason the question of knowledge of the mental condition of the idiot is often important in determining the negligence of the defendant. Thus, one whose mind is merely dull, and who is capable of earning his living, there being no apparent necessity of putting him under the 29. i Willetts v. Railroad Co., 14 Barb. (N. Y.) 585; Worthington v. Men- eer. 96 Ala. 310, 11 South. 72; Johnson v. Railway Co., 67 Minn. 260, 69 X. W. 900; Platte & D. Canal & Milling Co. v. Dowell, 17 Colo. 376, 30 Pac. 68; Lynch v. Railway Co., 112 Mo. 420, 20 S. W. 642. 2 East Saginaw City Ry. Co. v. Bohn, 27 Mich. 503; Pittsburg, A. & M. P. liy. Co. v. Caldwell, 74 Pa. St. 421; Brennan v. Railroad Co., 45 Conn. 284; Walters v. Railroad Co., 41 Iowa, 71, 76. In Robinson v. Cone, 22 Vt. 213. at page 224, Redfleld, J., says: "And we are satisfied that although a child or idiot or lunatic may, to some extent, have escaped into the highway through the fault or negligence of his keeper, and so be improperly there, yet, if he Js hurt by the negligence of the defendant, he is not precluded from his redress. If one know that such a person is in the highway, or on a railway, he is bound to a proportionate degree of watchfulness; and what would be but ordinary neglect in regard to one whom the defendant supposed a person of full age and capacity would be gross neglect as to a child, or one known to be incapable of escaping danger." 74 CONTRIBUTORY NEGLIGENCE. (Ch. 2 protection of a guardian, is chargeable with the same degree of care for his personal safety as are others of brighter intellect; but, if he is so devoid of intelligence as to be unable to apprehend apparent danger, one through whose negligence he is injured, having notice of his mental incapacity, cannot escape liability on the ground of con- tributory negligence. 3 PHYSICAL CONDITION AN ELEMENT OF CONTRIBUTORY NEGLIGENCE. 30. The physical condition of plaintiff at the time of the injury may properly be considered in determining the degree of care to be exercised by both himself and the defendant, reference being had to plain- tiff's possible decrepitude, blindness, deafness, lame- ness, and sex. Physical condition is merely one of the circumstances to be con- sidered in applying the test of ordinary care to the conduct under in- vestigation, but is often all-important in determining liability. While it is not negligence per se in an active, able-bodied man to get on or off a car when it is moving slowly, 1 such an act would be clearly negli- gent in one old, weak, sick, lame, or otherwise infirm. 2 Physical in- firmities place on the afflicted person an obligation for increased prudence and care. While a person cannot be held responsible for failure to exercise a faculty which he does not possess, yet the knowl- edge of his infirmity should render him more cautious about placing himself in a position where his incapacity increases the danger, and when necessarily, in a dangerous place the incapacity imposes the obligation of an increased activity of the remaining unimpaired v senses. 3 Thus deafness requires increased vigilance in the use of s Worthington v. Mencer, 96 Ala. 310, 11 South. 72. 30. i Citizens' St. R. Co. v. Spahr, 7 Ind. App. 23, 33 X. E. 446; Chicago- & A. R. Co. v. Byrum, 153 111. 131, 38 X. E. 578; Lewis v. Canal Co., 145 X. Y. 508, 40 X. E. 248; Schacherl v. Railway Co., 42 Minn. 42, 43 X. W. 837. 2 Cincinnati, H. & D. Ry. Co. v. Xolan, 8 Ohio Cir. Ct. R. 347; Chicago & A. R. Co. v. Means, 48 111. App. 396; Briggs v. Railway Co., 148 Mass. 72, 19 X. E. 19. 3 Chicago & X. E. Ry. Co. v. Miller, 46 Mich. 532, 9 X. W. 841; Hayes v. Rail- road Co., Ill U. S. 228, 4 Sup. Ct 3G9; Central R. Co. v. Feller, 84 Pa. St. 30) PHYSICAL CONDITION AS AN ELEMENT. 75 the eyes, 4 and when crossing a railroad track it is negligent in a deaf person not to keep a sharp lookout for trains. 5 Negligence will never be imputed to those who are physically de- ficient for the mere reason that they are pursuing their ordinary avo- cations when injured, 6 but they must still exercise ordinary care, such as they are capable of using; and one with poor sight should use greater care to avoid obstructions in the street than one whose eyesight is normal. 7 The mere fact of blindness in one who, unat- tended, walks the streets of a large city, does not warrant the con- clusion of contributory negligence if he is injured by falling into a cellar way negligently left open. 8 The sex of the injured party is also a proper matter to be consid- ered by the jury in determining what was ordinary care in the circum- stances, on the part of both plaintiff and defendant; 9 and, although it has been held error to charge that the law requires a less degree of care in a woman than in a man, 10 it is apprehended that, in certain conditions, acts which in a man would be merely for the consideration of the jury, as affecting the question of ordinary care, would in a 226; Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274; Laicher v. Railroad Co., 28 La. Ann. 320; Purl v. Railway Co., 72 Mo. 168; Cogswell v. Railroad Co., 6 Or. 417; Morris & E. R. Co. v. Haslan, 33 X. J. Law, 147; Chicago, B. & Q. R. Co. v. Triplett, 38 111. 482. 4 Cleveland, C. & C. R. Co. v. Terry, 8 Ohio St. 570; Fenneman v. Holden, 75 Md. 1, 22 Atl. 1049. s Illinois Cent. R. Co. v. Buckner, 28 111. 299. Sleeper v. Sandown, 52 X. H. 244; Davenport v. Ruckman, 37 X. Y. 5G8. The test is always ordinary care in the circumstances. Cox v. Road Co., 33 Barb. (X. Y.) 414; Frost v. Inhabitants of Waltham, 12 Allen (Mass.) 85; Thompson v. Inhabitants of Bridgewater, 7 Pick. (Mass.) 188; Renwick v. Railroad Co., 36 X. Y. 133. " Winn v. City of Lowell, 1 Allen (Mass.) 177; Sleeper v. Sandown, 52 X. H. 244; Davenport v. Ruckman, 37 X. Y. 5G8; Peach v. City of Utica, 10 Hun (X. Y.) 477. s Smith v. Wildes, 143 Mass. 556, 10 X. E. 4443, followed in Xeff v. Inhabit- ants of Wellesley, 148 Mass. 487, 20 X. E. 111. a Hasseuyer v. Railroad Co., 48 Mich. 205, 12 X. W. 155; Benjamin v. Rail- way Co., 160 Mass. 3, 35 X. E. 95. ioHassenyer v. Railroad Co., supra. In this case the court said, in sub- stance: A woman driving a horse presumably lacks the amount of skill, knowledge, dexterity, and steadiness of nerve or coolness of judgment in short, the same degree of competency that we would expect in a man. 76 CONTRIBUTORY NEGLIGENCE. (Cll. 2 woman be held to constitute contributory negligence, as getting off .a moving car. 11 On the other hand, when the infirmity or incapacity of the person exposed to danger is known, or. might reasonably be inferred, by the defendant, it becomes his duty to use proportionate care to avoid in- juring him. 13 If an engineer sees a person walking on the track, he has the right, ordinarily, to assume that he will get out of the way when the proper signal is given. "If, however, he sees a child of tender years upon the track, or any person known to him to be, or from his appearance giving him good reason to believe that he is, in- sane, or badly intoxicated, or otherwise insensible of danger, or un- able to avoid it, he has no right to presume that he will get out of the way, but should act upon the belief that he might not, and should therefore take means to stop his train in time." 13 SAME INTOXICATION. 31. Intoxication is always competent, but never conclu- sive, evidence of contributory negligence. 1 11 In Snow v. Provincetown, 120 Mass. 580, the charge of the trial court was approved: "Care implies attention and caution, and ordinary care is such a degree of attention and caution as a person of ordinary prudence, of the plaintiff's age and sex, would commonly and might reasonably be expected to exercise under like circumstances;" and on appeal it was held unexceptionable. And in City of Bloomington v. Perdue, 99 111. 329, the charge that plaintiff was bound to observe the conduct of a woman of common or ordinary pru- dence was held not to be erroneous. 12 Schierhold v. Railroad Co., 40 Cal. 447; Chicago & R. I. R. Co. v. Mc- Kean, 40 111. 218; Reg. v. Longbottom, 3 Cox, Cr. Cas. 439; East Tennessee & G. R. Co. v. St. John, 5 Sneed (Tenn.) 524; O'Mara v. Railroad Co., 38 N. Y. 445; City of Champaign v. White, 38 111. App. 233; Rex v. Walker, 1 Car. & P. 320. is Christiancy, C. J., in Lake Shore & M. S. R. Co. v. Miller, 25 Mich. 274. 31. i Abb. Tr. Ev. p. 585, 12, citing Stuart v. Machiasport, 48 Me. 477; Baker v. City of Portland, 58 Me. 199. See, also, Seymer v. Town of Lake, 66 Wis. 651, 29 N. W. 554; Wynn v. Allard, 5 Watts & S. (Pa.) 524; Illinois Cent. R. Co. v. Cragin, 71 111. 177; Cleghorn v. Railroad Co., 56 X. Y. 44; People v. Eastwood, 14 N. Y. 562; Wood v. Village of Andes, 11 Hun (N. Y.) 543; Cassedy v. Stockbridge, 21 Vt 391; Chicago, R. I. & P. R. Co. v. Bell, 70 HI. 102; Fitzgerald v. Town of Weston, 52 Wis. 354, 9 N. W. 13; Bal- timore & O. R. Co. v. State, 81 Md. 371, 32 Atl. 201. 31) PHYSICAL CONDITION AS AN ELEMENT. 77 Intoxication does not generally deprive a person entirely of his- senses or his judgment, and, although it is a matter of common knowledge that a man is not so prudent when he is drunk as when he- is sober, the vital question remains, as always, did he use the ordi- nary care of a sober man? 2 or, failing to use that ordinary care, was- his negligence a proximate cause of his injury? 3 U A drunken man is as much entitled to a safe street as a sober one, and .much more in need of it;" * and if, in the exercise of ordinary care, he is injured through the negligence of defendant, he may have his recovery. 5 But the fact of intoxication in no degree lessens the amount of care which he is required to take, and he is held to equal prudence with a sober person in like circumstances. 6 He may, however, require that others 2 Alger v. Lowell, 3 Allen (Mass.) 402: Ford v. Umatilla Co., 15 Or. 313, 1& Pac. 33; but his conduct in the circumstances may be such as to preclude any right to recover, Wood v. Village of Andes, 11 Hun (N. Y.) 543; Cassedy v, Stockbridge, 21 Vt. 391. s Ward v. Railway Co., 85 Wis. G01, 55 X. W. 771; Alger v. City of Low- ell, 3 Allen (Mass.) 406; Central Railroad & Banking Co. v. Phinazee, 93 Ga. 488, 21 S. E. GG; Robinson v. Pioche, 5 Cal. 4GO; Rhyner v. City of Menasha, 1)7 Wis. 523, 73 X. W. 41; Ward v. Railway Co., 85 Wis. 601, 55 N. W. 771; Morris v. Railroad Co., 68 Hun, 39, 22 X. Y. Supp. 666; Bradwell v. Railway Co., 153 Pa. St. 105, 25 Atl. 623; Lane v. Railway Co., 132 Mo. 4, 33 S. W. 645. * Heydenfeldt, J., in Robinson v. Pioche, 5 Cal. 461. 5 Seymer v. Town of Lake, 66 AVis. 651, 29 N. W. 554; Stuart v. Machias- port, 48 Me. 477; Ford v. Umatilla Co., 15 Or. 313, 16 Pac. 33; Weymire v. Wolfe, 52 Iowa, 533, 3 X. W. 541; Loewer v. City of Sedalia, 77 Mo. 431; Al- ger v. Oity of Lowell, 3 Allen (Mass.) 406; City of Salina v. Trosper, 27 Kan. 545; Baker v. City of Portland, 58 Me. 199, 205; Baltimore & O. R. Co. v. Boteler, 38 Md. 568; Healy v. Mayor, etc., 3 Hun (X. Y.) 708; Ditchett v. Railroad Co., 5 Hun (X. Y.) 165; Kingston v. Railway Co., 112 Mich. 40, 70 1 X. W. 315, 74 X. W. 230. e Johnson v. Railroad Co., 104 Ala. 241, 16 South. 75; Ford v. Umatilla Co.,. 15 Or. 313, 16 Pac. 33. In the latter case the court says: "Whether the re- spondent (plaintiff) was drunk or sober, he had a right to suppose that a bridge open to the use of the public, and under control of the county officials,, would bear up his load in crossing it; * * * and, because the respondent might bo inclined to be more credulous when intoxicated than when sober, it was no fact that would excuse the appellant. * * * There is no pre- tense that respondent drove his team carelessly or recklessly, or did any act which contributed to the injury, except in attempting to cross the bridge, and" the appellant, in the manner before suggested, invited him to do that.'' And it is no excuse for injuries caused by defendant when intoxicated that the- 78 CONTRIBUTORY NEGLIGENCE. (Ch. 2 shall exercise ordinary care in their conduct towards him, and his in- toxication will not excuse them for failure so to do, or relieve them from liability for injuries caused thereby. 7 Intoxicated Trespassers. Although intoxication is never a defense to contributory negli- gence, there would seem to be no valid reason why an intoxicated trespasser should be treated by the law with greater severity than a sober one. If it appears that a sober trespasser, in the same cir- cumstances, and using the same degree of care, would be entitled to recover for injuries caused by the negligence of the proprietor, it is submitted that no degree of inebriety should change his legal status. 8 While this position is not strongly supported by decisions, few, if any, cases can be found which directly refute it, although so eminent an authority as Mr. Beach takes a radically different view of the propo- sition, and says : "Drunkenness, however, on the part of a trespasser, is universally held to be such negligence as will prevent entirely any recovery of damages for injuries sustained at the time or by reason of the trespass." 9 We fail to find any authorities for this proposi- tion. It is true the courts have quite uniformly, and very consistent- ly, held that trespassers upon railroad property cannot recover for injuries suffered by reason of their intoxication; but it is believed that the gist of this holding, in every case, lies in the finding, either of fact or law, that their negligent conduct contributed to the harm, not that the combination of drunkenness and trespass created an absolute bar to recovery. 10 liquor was sold him by the plaintiff. Cassady v. Magher, 85 Ind. 228; John- son v. Railroad Co., 61 111. App. 522. 7 Rommel v. Schambacher, 120 Pa. St. 579, 11 Atl. 779; Kean v. Railroad Co., 61 Md. 154; Houston & T. C. R. Co. v. Reason, 61 Tex. 613. In. Louisville, O. & L. R. Co. v. Sullivan, 81 Ky. 624, a drunken passenger refused to pay his fare, and was negligently put off in the snow by the con- ductor. Held, that he could recover. Memphis & C. R. Co. v. Jones, 2 Head 0 111. App. 497; City of Huntingburg v. First (Ind. App.) 43 N. E. 17; Wahl v. Shoulders, 14 Ind. App. 665, 43 N. E. 458. < Donaldson v. Railway Co., 21 Minn. 293; St. Anthony Falls Water-Power Co. v. Eastman, 20 Minn. 277 (Gil. 249). 6 Cleary v. Packing Co., 71 Minn. 150, 73 N. W. 717. In the trial court the defendant made a motion to direct a verdict on the ground that the plaintiff had failed to make out a prima facie case, and an appeal was taken from the order denying this motion. The appellate court reversed the order, and directed judgment entered for defendant, on the ground that it conclusively appeared that plaintiff was guilty of contributory negligence in law. On a motion for a rearguinent the appellate court modified its ruling, and remanded the case for a new trial, on the ground that the defendant, in making its motion to direct a verdict, did not specify the contributory negligence of plain- tiff as a ground; thus, in effect, holding that a plaintiff may make out a prima facie case, although his contributory negligence in law conclusively appears in its presentation. 33) EVIDENCE BURDEN OF PROOF. 83 Much time has been devoted by jurists and theorists to the dis- cussion of the question whether a presumption of ordinary care or of negligence exists as to the plaintiff's conduct; but it is believed that in the practical consideration of the problem, as it presents itself in trials, the want of harmony is not so great as it appears. The gist of actionable negligence is injury, proximately caused by the legal fault of the defendant. If the plaintiff proves these main facts, he has made out a prima facie case, and need go no further. Suppose, however, that he shows defendant's negligence and his own damage; it remains to show the causal connection, and if it appears that this has been in any degree broken, or interrupted or seriously jostled, by his own wrong conduct, his proof is insufficient, and his case will fail, unless he overcomes the presumption, now raised for the first time, of want of ordinary care. And it is apprehended that a slight disturbance of this causal connection by his own wrong con- duct will be sufficient to raise the presumption of want of ordinary care on the part of the plaintiff. Thus, if, in the development of his case, it appears that in the circumstances a positive duty devolved upon the plaintiff, he must show either performance, or inability to perform, or that the nonperformance had no proximate influence on the result of defendant's breach of duty, as the duty of a person about to cross a railroad track to look and listen ; 6 or if it appears that he w r as in an intoxicated condition at the time of the accident ; 7 or if the plaintiff, by reason of infirmity, is incapable of ordinary care; 8 and, if the instrumentalities furnished by plaintiff were de- fective, the presumption is raised against him, unless he shows that he was not in fault in employing them. 9 A fortiori, where it appears plainly that plaintiff's undoubted negligence contributed to the in- jury. 10 On the other hand, the absence of any fault on the part of the plaintiff must be inferred in some circumstances. So, if he proves e Missouri Pac. Ry. Co. v. Lee, 70 Tex. 496, 7 S. W. 857; State v. Maine Cent. R. Co., 76 Me. 357; Cleveland, C. & C. R. Co. v. Crawford, 24 Ohio St 631; Pennsylvania R. Co. v. Beale, 73 Pa. St 504. T Button v. Railroad Co., 18 X. Y. 248; Fitzgerald v. Town of Weston, 52 Wis. 354, 9 X. W. 13; Stuart v. Machiasport, 48 Me. 477. s Curtis v. Railroad Co., 49 Barb. (N. Y.) 148. 9 Winship v. Enfleld, 42 X. H. 197. 10 Sprong v. Railroad Co., 60 Barb. (X. Y.) 30; Stoeckman v. Railroad Co., 15 Mo. App. 503. 84 CONTRIBUTORY NEGLIGENCE. (Ch. 2 that, while he was walking on a public sidewalk, he was struck by a plank negligently dropped from defendant's building by his servant. Here his case is complete, and he need not prove the absence of bar- riers, that he looked up or heard no warning cry, or any other matter to negative a presumption of carelessness. In the opinion of Denio, J., in a New York case, 11 often cited a expounding the rule of that state, which is supposed to place the bur- den of proof on the plaintiff, we find the following: "The true rule, in my opinion, is this: The jury must eventually be satisfied that the plaintiff did not, by any negligence of his own, contribute to the in- jury;" which is nothing more than a negative and illogical form of the proposition that the plaintiff must prove that defendant's negligence was the cause of his injury, and it goes without saying that this is not proven if it appears in any way that the plaintiff's negligence in any degree contributed to the injury. The above would seem to be the only logical rule in all cases, and it is well settled in many states and in the federal courts that the burden of proving contributory negligence, where it does not appear from the plaintiff's own case, is on the defendant. 12 11 Johnson v. Railroad Co., 20 N. Y. 04. 12 Walker v. Westfield, 39 Vt. 246; Smith v. Railroad Co., 35 N. H. 356; Cassidy v. Angell, 12 R. I. 447; Delaware, L. & W. R. Co. v. Toffey, 38 N. J. Law, 525; Pennsylvania R. Co. v. Weber, 76 Pa. St. 157; County Com'rs of Prince George Co. v. Burgess, 61 Md. 29; Crouch v. Railway Co., 21 S. C. 495; Thompson v. Central Railroad & Banking Co., 54 Ga. 509; Mobile & M. R. Co. v. Crenshaw, 65 Ala. 566; Dallas & W. R. Co. v. Spicker, 61 Tex. 427; Louisville, C. & L. R. Co. v. Goetz's Adm'x, 79 Ky. 442; Fowler v. Rail- road Co., 18 W. Va. 579; Baltimore & O. R. Co. v. Whitacre, 35 Ohio St. 627; Hoth v. Peters, 55 Wis. 405, 13 N. W. 219; Hocum v. Weitherick, 22 Minn. 152; Stephens v. City of Macon, 83 Mo. 345; Lincoln v. Walker, 18 Neb. 244, 20 N. W. 113; Kansas City, L. & S. R. Co. v. Phillibert, 25 Kan. 405; Sanderson v. Frazier, 8 Colo. 79, 5 Pac. 632; Lopez v. Mining Co., 1 Ariz. 464, 2 Pac. 748; MacDougall v. Railroad Co., 63 Cal. 431; Grant v. Baker, 12 Or. 329, 7 Pac. 318; Hough T. Railway Co., 100 U. S. 213; Indianapolis & St. Louis R. Co. v. Horst, 93 U. S. 291; Washington & G. Ry. Co. v. Glad- mon, 15 Wall. 401; Morgan v. Bridge Co., 5 Dill. 96, Fed. Cas. No. 9,802; The America, 6 Ben. 122, Fed. Cas. No. 282; Western Ry. Co. of Alabama v. Wil- liamson, 114 Ala, 131, 21 South. 827; Consolidated Traction Co. v. Behr, 59 N. J. Law, 477, 37 Atl. 142; Sopherstein v. Bertels, 178 Pa. St. 401, 35 Atl. 1000; Doyle v. Railroad Co., 27 C. C. A. 264, 82 Fed. 869; Fitchburg R. Co. v. Nichols, 29 C. C. A. 500, 85 Fed. 945; Louth v. Thompson (Del. Super.) 39 34; PLEADING CONTRIBUTORY NEGLIGENCE. 85 PLEADING CONTRIBUTORY NEGLIGENCE. 34. It is a general and almost universal rule that plaintiff need not allege his freedom from fault. The ad- missibility of proof of contributory negligence un- der a general denial is not general, varying in dif- ferent states. In those states where the burden of proof is on the defendant, it follows, as of course, that freedom from fault need not be alleged in the complaint, 1 and, even in those states where the burden is on the plaintiff, the same rule prevails, with one or two exceptions; 2 this seeming inconsistency being explained on the ground that, if plain- tiff proves that the injury complained of was proximately caused by defendant's negligence, it must follow that plaintiff's fault did not contribute to the result. Of the states placing the burden on the plaintiff, Indiana appears to be the only one which consistently requires the plaintiff to allege that he was free from contributory negligence. 3 Atl. 1100; Wood v. Bartholomew, 122 N. C. 177, 29 S. E. 959; City of Hills- fcoro v. Jackson (Tex. Civ. App.) 44 S. W. 1010; Houston & T. C. Ry. Co. v. O'Neal (Tex. Civ. App.) 45 S. W. 921; Harrington v. Mining Co. (Utah) 53 Pac. 737; Rhyner v. City of Menasha, 97 Wis. 523, 73 N. W. 41; Pullman Palace-Car Co. v. Adams (Ala.) 24 South. 921; Maxwell v. Railway Co., 1 Marv. 199, 40 Atl. 945; Mills v. Railway Co., 1 Marv. 269, 40 Atl. 1114; Baker v. Railroad Co. (Mo. Sup.) 48 S. W. 838; Cox v. Railroad Co., 123 N. C. 04, 31 S. E. 848; Daly v. Hinz, 113 Cal. 366, 45 Pac. 693; Prosser v. Rail- way Co., 17 Mont. 372, 43 Pac. 81; Union Stockyards Co. v. Conoyer, 41 Neb. 17, 59 N. W. 950; Omaha St. Ry. Co. v. Martin, 48 Neb. 65, 66 N. W. 1007; Stewart v. City of Nashville, 96 Tenn. 50, 33 S. W. 613; Central Tex. & N. W. Ry. Co. v. Bush, 12 Tex. Civ. App. 291, 34 S. W. 133. 34. i Holt v. Whatley, 51 Ala. 569; Robinson v. Railroad Co., 48 Cal. 409; Cox v. Brackett, 41 111. 222; Hocum v. Weitherick, 22 Minn. 152; Smith v. Railroad Co., 35 N. H. 356; Potter v. Railway Co., 20 Wis. 533; Matthews v. Bull (Cal.) 47 Pac. 773; Berry v. Railroad Co., 70 Fed. 193; Johnson v. Improvement Co., 13 Wash. 455, 43 Pac. 370; Thompson v. Railway Co., 70 Minn. 219, 72 N. W. 962. 2 May v. Inhabitants of Princeton, 11 Mete. (Mass.) 442; Lee v. Gaslight Co., 98 N. Y. 115. Evansville & C. R. Co. v. Hiatt, 17 Ind. 102; Rogers v. Overton, 87 Ind. 411; Williams v. Moray, 74 Ind. 25. But it is sufficient to allege that the 86 CONTRIBUTORY NEGLIGENCE. (Ch. 2 In some states proof of contributory negligence is admissible un- der a general denial, 4 while in others it must be expressly averred in the answer. 6 There is no general rule on this subject, although we find it thus stated by two of the leading authorities: "But evidence of the plaintiff's fault is inadmissible under a general denial;" 6 and r "The defense of contributory negligence is admissible under the gen- eral plea of not guilty or under a general denial." 7 CONTRIBUTORY NEGLIGENCE AS QUESTION OF FACT. 35. The question of contributory negligence is generally one of fact for the jury, and, unless the plaintiff's conduct was palpably careless, it should not be de- cided by the court. 1 injury was without fault on plaintiff's part, Gheens v. Golden, 90 Ind. 427; Ohio & M. Ry. Co. v. Nickless, 71 Ind. 271; or even that it was wholly caused by defendant's negligence, Brinkman v. Bender, 92 Ind. 234; Wilson v. Road 1 Co., 83 Ind. 326; City of Anderson v. Hervey, 67 Ind. 420; Peirce v. Oliver, 18 Ind. App. 87, 47 N. E. 485. * St. Anthony Falls Water-Power Co. v. Eastman, 20 Minn. 277 (Gil. 249); Cunningham v. Lyness, 22 Wis. 236; Ellet v. Railway Co., 76 Mo. 518; (but see Stone v. Hunt, 94 Mo. 475, 7 S. W. 431); MacDonell v. Buffum, 31 How, Prac. 154; Indianapolis & C. R. Co. v. Rutherford, 29 Ind. 82; Jonesboro & F. Turnpike Co. v. Baldwin, 57 Ind. 86; Grey's Ex'r v. Trade Co., 55 Ala. 387; Denver, T. & Ft. W. R. Co. v. Smock, 23 Colo. 456, 48 Pac. 681; Chesa- peake & O. Ry. Co. v. Smith (Ky.) 39 S. W. 832. e Stone v. Hunt, 94 Mo. 475, 7 S. W. 431 (but see Ellet v. Railway Co., 76 Mo. 518); Western Union Tel. Co. v. Apple (Tex. Civ. App.) 28 S. W. 1022; Willis v. City of Perry, 92 Iowa, 297, 60 N. W. 727; Martin v. Railway Co., 51 S. C. 150, 28 S. E. 303; Clark v. Railway Co., 69 Fed. 543. a Beach, Contrib. Neg. (2d Ed.) 443. 7 Shear. & R. Neg. (4th Ed.) 113. 35. i O'Brien v. McGlinchy, 68 Me. 552; Sleeper v. Railroad Co., 58 N, H. 520; Fassett v. Roxbury, 55 Vt. 552; Brooks v. Railroad Co., 135 Mass. 21; O'Connor v. Adams, 120 Mass. 427; Beers v. Railroad Co., 19 Conn. 566; Bell v. Railroad Co., 29 Him (N. Y.) 500; Thomas v. City of New York, 28 Hun (N. Y.) 110; Salter v. Railroad Co., 88 X. Y. 42; Orange & N. H. R, Co. v. Ward, 47 N. J. Law, 560, 4 Atl. 331; North Pennsylvania R. Co. v. Kirk, 90 Pa. St. 15; Mayor, etc., of City of Baltimore v. Holmes, 39 Md. 243; Sheff v. City of Huntington, 16 W. Va. 307; Central R. Co. v. Freeman, 66 Ga, 170; Louisville, C. & L. R. Co. v. Goetz's Adm'x, 79 Ky. 442; Hill v. Gust, 55 Ind. 45; Town of Albion v. Hetrick, 90 Ind. 545; Wabash, St. L. & P. Ry. Co. 35) CONTKIBUTORY NEGLIGENCE AS QUESTION OF FACT. 87 The same rules substantially govern the submission to the jury of either the plaintiff's or defendant's negligence, due regard being had to the rule of the particular court in placing the burden of proof. Nor should the court withdraw the case from the jury for the rea- son that to its mind the facts were so weak as to give no support to the proposition of negligence, either of plaintiff or defendant. The question is, rather, are the facts so weak, in the estimate of fair, sound minds, that the law would not tolerate a verdict founded upon them ? 2 If but one inference can be drawn from the evidence, it is, of course, purely a question of law for the decision of the court. Where the action is to recover for death caused by defendant's negligence, there is a lack of harmony as to the presumption of negli- gence on the part of plaintiff, there being no direct evidence on the point; and this, even in those courts which hold that the burden of proof is on the plaintiff. 3 In the courts where the defendant must assume the burden, the discussion can hardly arise. v. Shacklet, 105 111. 364; Anderson v. Morrison, 22 Minn. 274; Garrett v. Railway Co., 36 Iowa, 121; Kelly v. Railroad Co., 70 Mo. 604; Swoboda v. Ward, 40 Mich. 420; Kelley v. Railway Co., 53 Wis. 74, 9 X. W. 816; Fer- naudes v. Railroad Co., 52 Cal. 45; Bierbach v. Rubber Co., 14 Fed. 826, 15 Fed. 490; Cunningham v. Railway Co., 115 Cal. 561, 47 Pac. 452; Town of Salem v. Walker, 16 Ind. App. 687, 46 N. E. 90; Hadley v. Railroad Co. and. App.) 46 N. E. 935; Union Pac. Ry. Co. v. Lipprand, 5 Kan. App. 484, 47 Pac. (J25; Village of Culbertson v. Holliday, 50 Neb. 229, 69 N. W. 853; New York & G. L. Ry. Co. v. Railway Co., 60 N. J. Law, 52, 37 Atl. 627; Klinkler v. Iron Co., 43 W. Va. 219, 27 S. E. 237; Patton v. Railway Co., 27 C. C. A. 287, 82 Fed. 979; Herbert v. Southern Pac. Co., 121 Gal. 227, 53 Pac. 651; West Chicago St. R. Co. v. Feldstein, 1G9 111. 139, 48 N. E. 193; Ashland Coal, Iron & Railway Co. v. Wallace's Adm'r (Ky.) 42 S. W. 744; Stone v. Railroad Co., 171 Mass. 536, 51 X. E. 1; Lillibridge v. McCann (Mich.) 75 N. W. 288; Hy- gienic Plate Ice Mfg. Co. v. Railroad Co., 122 N. C. 881, 29 S. E. 575; Heck- man v. Evenson, 7 N. D. 173, 73 N. W. 427; Mitchell v. Railway Co., 100 Tenn. 329, 45 S. W. 337; Reese v. Mining Co., 15 Utah, 453, 49 Pac. 824; Deis- enrleter v. Malting Co., 97 Wis. 279, 72 X. W. 735; Ward v. Manufacturing Co., 123 X. C. 248, 31 S. E. 495; Ryan v. Ardis, 190 Pa, St. 66, 42 Atl. 372; Schwartz v. Shull (W. Va.) 31 S. E. 914. 2 Hart v. Bridge Co., 80 X. Y. 622. See, also, Xorthrup v. Railway Co., 37 Hun (X. Y.) 295; Greany v. Railroad Co., 101 X. Y. 419, 5 N. E. 425; Payne v. Reese, l(fo Pa. St. 301. s Where there was no direct evidence as to the care of the deceased, In- diana, B. & W. Ry. Co. v. Greene, 106 Ind. 279, 6 N. E. 603; Cordell v. Rail- 88 CONTRIBUTORY NEGLIGENCE. (Ch. 2 In any event, if there is any evidence reasonably tending to show contributory negligence on the part of plaintiff, the defendant is en- titled to an instruction that plaintiff cannot recover if his negligence in any degree contributed to the injury complained of, unless it fur- ther appears that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party's carelessness.* road Co., 75 N. Y. 330. Where evidence was not sufficient to warrant a find- ing that there was no negligence on the part of deceased, Reynolds v. Rail- road Co., 58 N. Y. 248. Per contra, absence of evidence of ordinary care does not justify a presumption of negligence, Massoth v. Canal Co., 64 N. Y. 524. See, also, in general, Jones v. Railroad Co., 28 Hun (N. Y.) 364; Lindeman v. Railroad Co., 42 Hun (N. Y.) 306. * See ante, 8, notes 7, 8, and cases cited; Pittsburg, Ft. W. & C. Ry. Co. v. Krichbaum's Adm'r. 24 Ohio St. 119; Baltimore & O. R. Co. v. Whittaker, Id. 642. Also, see, Patterson v. Railroad Co., 4 Houst. (Del.) 103. 36) LIABILITY OF MASTER TO SERVANT. 89 CHAPTER HE. LIABILITY OF MASTER TO SERVANT. 36. Duty of Master. 37. Appliances and Places for Work. 38. Selecting and Retaining Servants. 39. Rules and Regulations. 40. Promulgation of Rules. 41. Warning and Instructing Servants. 42. Limitation of Master's Duty. 43. Ordiaary Risks. 44. Known Dangers Assumed. 45. Unusual Dangers not Assumed. 46. Unknown Defects or Dangers. 47. Promise to Repair. 48. Compliance with Express Orders. 49. Servants and Fellow Servants. 50. Common Employment as Test. 51-52. Vice Principal. 53-54. Rule in Federal Courts. 55. Concurrent and Contributory Negligence. 56. Servants' Own Negligence as Proximate Cause. DUTY OF MASTER. 36. It is the duty of the master, -which cannot be shifted by delegation, to exercise ordinary care to protect his servants from injury while in his employment, 1 and includes 36-37. i Hough v. Railway Co., 100 U. S. 213; Baltimore & O. & C. R. Co. v. Rowan, 104 Ind. 88, 3 N. E. 627; Tissue v. Railroad Co., 112 Pa. St. 91, 3 Atl. 667; Noyes v. Smith, 28 Vt. 59; Ryan v. Fowler, 24 N. Y. 410; Wabash R. Co. v. Kelley (Ind. Sup.) 52 N. E. 152; McGeary v. Railroad Co. 5. 140 LIABILITY OF MASTER TO SERVANT. (Ch. 3 classification as fellow servants, but not all thus employed are fel- low servants. This is recognized by the court later on in the same decision quoted above: "There are some duties which the master owes to the servant, and from which he cannot relieve himself, ex- cept by performance. Thus, the master owes every employe" the duty of providing a reasonably safe place in which to work, and reasonably safe instruments, tools, and machinery with which to work. This is a direct, personal, and absolute obligation; and, while the master may delegate these duties to an agent, such agent stands in the place of his principal, and the latter is responsible for the acts of such agent; and where the master or superior places the entire charge of his business, or a distinct branch of it, in the hands of an agent or subordinate, exercising no discretion or oversight of his own, the master is held liable for the negligence of such agent or subordi- nate." 2T The law as enunciated in this case may probably be taken as the accepted doctrine in Pennsylvania, although earlier and con- flicting decisions have not been expressly overruled. 28 These earlier decisions clearly indicate that the master may relieve himself of re- sponsibility in supplying machinery and appliances, however defective and unsuitable they may be in fact, provided he intrusts their struc- ture or selection to competent and skillful persons; but, as they are no longer cited with approval, the disapproval of their principles may be taken as implied. The doctrine of superior and subordinate is not recognized in this state. The Rule in Minnesota. In Minnesota the duty of providing reasonably safe places, appli- ances, and instrumentalities cannot be delegated by the master so as 27 Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. 514; Xoll v. Railroad Co., 163 Pa. St. 504, 30 Atl. 157; Rehm v. Railroad Co., 164 Pa. St. 91, 30 Atl. 35G; Prevost v. Refrigerating Co., 185 Pa. St. 617, 40 Atl. 88. But where the control is qualified, see Schroeder v. Railroad Co., 103 Mich. 213, 61 N. W. 663. 28 Ardeseo Oil Co. v. Gilson, 63 Pa. St. 150. The court illustrates the prin- ciple by saying: "If I employ a well-known and reputable machinist to con- struck a steam engine, and it blows up from bad materials or unskillful work, I am not responsible for any injury which may result, whether to my own servant or to a third person." Mansfield Coal & Coke Co. v. McEnery, 91 Pa. St. 185. 5152) VICE PRINCIPAL. 141 to relieve him of responsibility. 29 Differences of grade or authority do not determine the relation of fellow servant. 30 The employ 6 be- comes vice principal only when he is intrusted with the performance of some absolute duty of the master himself, such as the provision, of proper instrumentalities with which the servant is to perform his work. 31 But in the construction of appliances or instrumentalities all those who are engaged in the work are fellow servants, regardless of grade or department of service; such building or construction be- ing regarded as a part of the regular work which they are hired ta perform. The leading case on this point is that of Lindvall v. Woods, 32 in w T hich a foreman and laborers under him were held to be fellow servants while engaged in building a trestle to be used in fur- therance of the general business. In the later case of Blomquist v. Chicago, M. & St. P. Ky. Co., 33 the foreman of a crew of laborers en- gaged in constructing bridge piers, and having authority, in the ab- sence of defendant's engineer, to superintend the work, was held to- be a vice principal; but in the latter case the violation of defendant's duty consisted in the negligence of the foreman in adjusting and pla- cing the derrick, by means of which the stones were raised into place,, the plaintiff being absent when the derrick was so placed. The master also owes the duty to his servants of reasonable in- spection and maintenance of appliances and instrumentalities, 34 and those engaged in making repairs are representative of the master. The Minnesota statute defining vice principals is nothing more than 29 Lindvall v. Woods, 41 Minn. 212, 42 N. W. 1020; Brown v. Railway Co.,. 31 Minn. 553, IS N. W. 834. But car inspector is not fellow servant of brake- man. Fay v. Railway Co., 30 Minn. 231, 15 N. W. 241; Tierney v. Railway Co., 33 Minn. 311, 23 N. W. 229; Macy v. Railroad Co., 35 Minn. 200, 28 N. W. 240. so Lindvall v. Woods, 41 Minn. 212, 42 N. W. 1020; Fraker v. Railway Co., 32 Minn. 54, 19 X. W. 349; Brown v. Railway Co., 31 Minn. 553, 18 N. W. S34; Tierney v. Railway Co., 33 Minn. 311, 23 N. W. 229. 31 Brown v. Railway Co., 31 Minn. 553, 18 X. W. 834; Stahl v. City of Dulutli, 71 Minn. 341, 74 N. W. 143; Lundberg v. Shevlin-Carpenter Co., 6& Minn. 135, 70 N. W. 1078; Holman v. Kempe, 70 Minn. 422, 73 N. W. 186. 32 41 Minn. 212, 42 N. W. 1020; Fraser v. Lumber Co., 45 Minn. 235, 4T N. W. 785. as 60 Minn. 426, 62 X. W. 818. s* Anderson v. Railroad Co., 39 Minn. 523, 41 N. W. 104. 142 LIABILITY OF MASTER TO SERVANT. (Ch. 3 .an enunciation of the doctrine which has long been the well-settled common law of the state. 35 53. RULE IN FEDERAL COURTS The master is re- sponsible for any breach of a positive duty owed by him to his employes, and the grade of the serv- ant through -whose immediate negligence the breach occurs is immaterial in determining the master's liability, although a distinction is drawn between servants exercising no supervision and those whose duties are those solely of superintendence and direc- tion. 64. The master cannot avoid responsibility in the delega- tion of his duty as to premises, appliances, and ma- chinery. The case of Baltimore & O. R Co. v. Baugh * enunciates the law on this subject as now settled in the federal courts. In that case the fireman on a locomotive engine was injured by reason of the negligence of the engineer in charge of the engine, which was run- ning without any train attached. The judgment of the trial court, -allowing recovery, was reversed, the court holding that the engineer and fireman were fellow servants. The doctrine therein stated as the correct rule for determining the relation of vice principal is a modification of that found in the earlier case of Chicago, M. & St. P. Ry. Co. v. Boss, 2 decided in 1884. The latter case involved a some- what radical departure from the former holdings of this court on the same subject. Ross was a locomotive engineer, and was injured through the negligence of the conductor in charge of the train to so Whenever a master or employer delegates to any one the performance of his duties which he, as master or employer, owes to his servants, or any part or portion of such duties, the person so delegated, while so acting for his master or employer, shall be considered the vice principal and represent- ative of the master. Chapter 173, 2, Gen. Laws 1895. 53-54. i 149 U. S. 308, 13 Sup. Ct. 914. 2 112 U. S. 377, 5 Sup. Ct 184. In support of its position in this case the court cites Little Miami R. Co. v. Stevens. 20 Ohio, 415; Cleveland, C. & C. R. Co. v. Keary, 3 Ohio St 201; Louisville & N. R. Co. v. Collins, 2 Duv. (Ky.) 114. 53-54) RULE IN FEDERAL COURTS. 143 which his engine was attached. His recovery in the lower court was affirmed, it being distinctly held that the conductor and en- gineer were not fellow servants. The opinion of the court, writ- ten by Mr. Justice Field, who also wrote 'a dissenting opinion in the Baugh Case, clearly holds the individual train to be a distinct and separate department of the general service, of which department the conductor had the sole and exclusive charge. The court says: "We agree with them in holding and the present case requires no fur- ther decision that the conductor of a railway train, who commands its movements, directs when it shall start, at what stations it shall stop, at what speed it shall run, and has the general management of it, and control over the persons employed upon it, represents the company, and, therefore, that for injuries resulting from his negli- gent acts the company is responsible. If such a conductor does not represent the company, then the train is operated without any rep- resentative of its owners." And again: "There is, in our judg- ment, a clear distinction to be made, in their relation to their com- mon principal, between the servants of a corporation exercising no supervision over others engaged with them in the same employment, and agents of the corporation clothed with the control and man- agement of a distinct department, in which their duty is entirely that of direction and superintendence." As abstract propositions of law, the foregoing statements are not open to objection, but the hypothesis deprives them of value when applied to the case under consideration. Is it true that the conductor has absolute direction and control of his train, as assumed in the opinion? Is he not sub- ject to the limitations of time-tables, train dispatchers, special orders, and fixed rules? Has he any discretion as to the speed of the train, or at what stations it shall stop? It is to be observed that the language of the court is general, and not limited to the particular circumstances of this case. In Baltimore & 0. R. Co. v. Baugh the opinion in the Ross Case is fully discussed, and the extremity of its doctrine palpably cur- tailed. The court says: "And from this natural separation flows the rule that he who is placed in charge of such separate branch of the service, who alone superintends and has the charge of it, is as to it in the place of the master. But this is a very differ- 144 LIABILITY OF MASTER TO SERVANT. (Ch. & ent proposition from that which, affirms that each separate piece of work in one of these branches of service is a distinct depart- ment, and gives to the individual having control of that piece of work the position of vice principal or representative of the master. Even the conclusion enunciated in the Eoss Case was not reached by a unanimous court, four of its members being of opinion that it was carrying the thought of a distinct department too far to hold it applicable to the management of a single train." That the court gives no weight to the bare relation of superior and subordinate appears from the following excerpt from the same opin- ion : "But the danger from the negligence of one specially in charge of the particular work is as obvious and as great as from that of those who are simply co-workers with him in it. Each is equally with the other an ordinary risk of the employment. If he is paid for one, he is paid for the other; if he assumes the one, he assumes the other. Therefore, so far as the matter of the master's exemption from liabil- ity depends upon whether the negligence is one of the ordinary risks of the employment, and, thus assumed by the employe', it includes all co-workers to the same end, whether in control or not. But if the fact that the risk is or is not obvious does not control, what test or rule is there which determines? Kightfully, this: There must be seme personal wrong on the part of the master, some breach of positive duty on his part. If he discharges all that may be called positive duty, and is himself guilty of no neglect, it would seem as though he were absolved from all responsibility, and that the party who caused the injury should be himself alone responsible. It may be said that this is only passing from one difficulty to another, as it leaves still to be settled what is positive duty and what is personal neglect; and yet, if we analyze these matters a little, there will ap- pear less difficulty in the question. Obviously, a breach of positive duty is personal neglect; and the question in any given case is, there- fore, what is the positive duty of the master?" Respecting the duty of the master to furnish and maintain reason- ably safe premises, instrumentalities, and machinery for the perform- ance of the work, this court is in harmony with New York rule. These are positive duties, and cannot be delegated by the master so as to relieve him from liability for their improper performance. The persons intrusted with their performance represent the master, and 53-54) RULE IN FEDERAL COURTS. 145 are vice principals, and not fellow servants, as to those engaged in the use of the instrumentalities thus furnished. 3 Other states adhere to various combinations and adaptations of the foregoing principles in determining the relations of vice principal and fellow servant. 4 3 Northern Pac. R. Co. v. Herbert, 116 TJ. S. 650, 6 Sup. Ct. 590; Baltimore & O. R. Co. v. Baugh, 149 U. S. 3G8, 13 Sup. Ct. 914. See, also, on general subject of fellow servants and vice principals: Locomotive engineer not a fellow servant of hostler's helper engaged in switching engines in the railroad yard. Atchison, T. & S. F. R. Co. v. Mulligan, 14 C. C. A. 547, 67 Fed. 569. The duty of opening and closing a switch in the ordinary operation of a railroad is not one of the personal duties of the master. St. Louis, I. M. & S. Ry. Co. v. Xeedham, 11 C. C. A. 56, 63 Fed. 107. An engineer in temporary charge of a train cannot waive a rule prohibiting coupling, etc., without a stick. Richmond & D. R. Co. v. Finley, 12 C. C. A. 595, 63 Fed. 228. A telegraph operator and an engineer of train on same road are fellow servants, Baltimore & O. R. Co. v. Camp. 13 C. C. A. 233, 65 Fed. 952; but a train dispatcher is not a fellow servant of an engineer of a train on his division, Baltimore & O. R. Co. v. Camp, supra; Clyde v. Railroad Co., 69 Fed. 673; nor is a car inspector a fellow servant of a brakeman, Atchison, T. & S. F. R. Co. v. Myers, 11 C. C. A. 439, 63 Fed. 793; Terre Haute & I. R. Co. v. Mansberger, 12 C. C. A. 574, 65 Fed. 196. Section men and laborers on repair trains are fellow servants, and employer is not liable to one for injuries caused by negligence of another, though such other has control over a gang of men. Thorn v. Pittard, 10 C. C. A. 352, 62 Fed. 232. Negligence of con- ductor in transmitting order of train master to yard master, whereby brake- man was injured, is the negligence of fellow servant. Martin v. Railway Co., 65 Fed. 384. Mine inspector not fellow servant of miner. Gowen v. Bush, 22 C. C. A. 196, 76 Fed. 349. Mate of vessel not fellow servant of workman on wharf. Hermann v. Mill Co., 71 Fed. 853. Engine hostler and car accountant not fellow servants. Northern Pac. R. Co. v. Craft, 16 C. O. A. 175, 69 Fed. 124. Section foreman and section hands are fellow servants. Northern Pac. R. Co. v. Charless, 162 U. S. 359, 16 Sup. Ct. 848. Foreman in charge, and personally assisting laborers, a fellow servant. Coulson v. Leonard, 77 Fed. 538. * ALABAMA: Smoot v. Railroad Co., 67 Ala. 13; Mobile & O. R. Co. v. Thomas, 42 Ala. 672; Mobile & M. R. Co. v. Smith, 59 Ala. 245; Tyson v. Railroad Co., 61 Ala. 554; Mobile & O. R. Co. v. George, 94 Ala. 199, 10 South. 145; Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412, 11 South. 262; Alabama G. S. R. Co. v.- Davis (Ala.) 24 South. 862; Buckalew v. Railroad Co., 112 Ala. 146, 20 South. 606; Postal Tel. Cable Co. v. Hulsey, 115 Ala. 193, 22 South. 854. ARIZONA: Hobson v. Railroad Co., 11 Pac. 545; South- ern Pac. Co. v. McGill, 44 Pac. 302. ARKANSAS: St. Louis, I. M. & S. Ry. BAR.NEG. 10 146 LIABILITY OF MASTER TO SERVANT. (Ch. 3 CONCURRENT AND CONTRIBUTORY NEGLIGENCE. 65. Although the servant assumes the risk of the negli- gence of his fellow servants, he does not assume that of his master; and, if the master's negligence concurs -with that of a fellow servant to produce the injury complained of, the servant may recover therefor, provided the servant's own negligence does not proximately contribute to the injurious result. Co. v. Rice, 51 Ark. 467, 11 S. W. 699; St. Louis, I. M. & S. Ry. Co. v. Gaines, 46 Ark. 555; Bloyd v. Railway Co., 58 Ark. 66, 22 S. W. 1089; St. Louis S. W. Ry. Co. v. Henson, 61 Ark. 302, 32 S. W. 1079; Hunter v. Bridge, 29 C. C. A. 206, 85 Fed. 379; St. Louis, I. M. & S. Ry. Co. v. Rickman, 45 S. W. 56. CALIFORNIA: Civ. Code, 1970; McLean v. Mining Co., 51 Cal. 255; McKune v. Railroad Co., 66 Cal. 302, 5 Pac. 482; Beeson v. Mining Co., 57 Cal. 20; Stephens v. Doe, 73 Cal. 27, 14 Pac. 378, approving McLean v. Mining Co., supra; Trask v. Railroad Co., 63 Cal. 96; Bums v. Sennett, 44 Pac. 1068; Foley v. Horseshoe Co., 115 Cal. 184, 47 Pac. 42; Donnelly v. Bridge Co., 117 Cal. 417, 49 Pac. 559. COLORADO: Wells v. Coe, 9 Colo. 159, 11 Pac. 50; Orman v. Mannix, 17 Colo. 564, 30 Pac. 1037. The principle of the "Ross Case" is approved in the following: Colorado M. Ry. Co. v. Naylon, 17 Colo. 501, 30 Pac. 249; Denver, S. P. & P. R. Co. v. Discoll, 12 Colo. 520, 21 Pac. 708; Grant v. Varney, 21 Colo. 329, 40 Pac. 771; Colorado Coal & Iron Co. v. Lamb, 6 Colo. App. 255, 40 Pac. 251; Denver Tramway Co. v. O'Brien, 8 Colo. App. 74, 44 Pac. 766. CONNECTICUT: Darrigan v. Railroad Co., 52 Conn. 285; Wilson v. Linen Co., 50 Conn. 433; McElligott v. Randolph, 61 Conn. 157, 22 Atl. 1094; Sullivan v. Railroad Co., 62 Conn. 209, 25 Atl. 711. DELA- WARE: Foster v. Pusey, 8 Houst. 168, 14 Atl. 545; Wheatley v. Railroad Co., 1 Marv. 305, 30 Atl. 660. FLORIDA: Parrish v. Railroad Co., 28 Fla. 251, 9 South. 696. GEORGIA: Code 1882, 2083, 2202, 3036; Baker v. Rail- road Co., 68 Ga. 699; Western & A. R. Co. v. Adams, 55 Ga. 279; Keith v. Coal Co., 81 Ga. 49, 7 S. E. 166; McGovern v. Manufacturing Co., 80 Ga. 227, 5 S. E. 492; Augusta Factory v. Barnes, 72 Ga. 217; Central R. Co. v. De Bray, 71 Ga. 406; Atlanta Cotton Factory Co. v. Speer, 69 Ga. 137; Georgia Railroad & Banking Co. v. Miller, 90 Ga. 571, 16 S. E. 939; Gates v. Itner, 104 Ga. 679, 30 S. E. 884; Boswell v. Barnhart, 96 Ga, 521, 23 S. E. 414; Taylor v. Marble Co., 99 Ga. 512, 27 S. E. 768; Blackman v. Electric Co., 102 Ga. 64, 29 S. E. 120. INDIANA: Krueger v. Railway Co., Ill Ind. 51, 11 N. E. 957; Pennsylvania Co. v. Whitcomb, 111 Ind. 212, 12 N. E. 380; Indi- ana Car Co. v. Parker, 100 Ind. 181; Atlas Engine Works v. Randall, Id. 293; Louisville, N. A. & C. Ry. Co. v. Buck, 116 Ind. 566, 19 N. E. 453; Jus- 55) CONCURRENT AND CONTRIBUTORY NEGLIGENCE. 147 It has already been stated that the master cannot avail himself of the defense of fellow servant, if the negligent employe' causing the injury had been carelessly or improperly selected or hired, and, fur- thermore, that this defense cannot be urged whenever the offending tice v. Pennsylvania Co., 130 Ind. 321, 30 X. E. 303; Clarke v. Same, 132 Ind. 199, 31 X. E. 808 (see, also, cases cited in Bailey, Mast. Liab. p. 279, etc.); Xeutz v. Coke Co., 139 Ind. 411, 38 N. E. 324, 39 X. E. 147; City of Leb- anon v. McCoy, 12 Ind. App. 500, 40 N. E. 700; Indiana, I. & I. Ry. Co. v. Snyder, 140 Ind. 647, 39 N. E. 912; Ohio & M. Ry. Co. v. Stein, 140 Ind. 61, .39 X. R 24G; Louisville, X. A. & C. Ry. Co. v. Isom, 10 Ind. App. 691, 38 X. E. 423; Hodges v. Wheel Co. (Sup.) 52 X. E. 391; Perigo v. Brewing Co. (App.) 52 X. E. 462; Peirce v. Oliver, 18 Ind. App. 87, 47 N. R 485; Ameri- can Telephone & Telegraph Co. v. Bower, 20 Ind. App. 32, 49 N. E. 182; Louisville, X. A. & C. Ry. Co. v. Heck, 151 Ind. 292, 50 X. R 988. IOWA: The liability of railways for negligence in their operation is regulated by stat- ute (Code 1S73, 1307); but the statute has received a rather limited con- struction as to what constitues the "operation" of a railroad. Stroble v. Railway Co.. 70 Iowa, 555, 31 X. W. 03; Foley v. Railway Co., 64 Iowa, 644, 21 X. W. 124; Malone v. Railway Co., 65 Iowa, 417, 21 X. W. 756. The plaintiffs in following cases held to have been engaged in "operating," within the statute: Schroeder v. Railroad Co., 47 Iowa, 375; McKnight v. Con- struction Co., 43 Iowa, 406; Frandsen v. Railroad Co., 36 Iowa, 372; Deppe v. Same, Id. 52; Pyne v. Railroad Co., 54 Iowa, 223, 6 X. W. 281. Other- wise in the following: Malone v. Railway Co., 65 Iowa, 417, 21 X. W. 756; Potter v. Railroad Co., 46 Iowa, 399; Foley v. Same, 64 Iowa, 644, 21 X. W. 124; Luce v. Railway Co., 67 Iowa, 75, 24 X. W. 600; Stroble v. Rail- way Co., 70 Iowa, 555, 31 X. W. 63. Mere superiority of grade is imma- terial, Peterson v. Mining Co., 50 Iowa, 673; but a person charged with the exercise of primary duties represents the master, Brann v. Railroad Co., 53 Iowa, 595, 6 X. W. 5; Theleman v. Moeller, 73 Iowa, 108, 34 X. W. 765; Hathaway v. Railway Co., 92 Iowa, 337, 60 X. W. 651; Blazenic v. Coal Co., 102 Iowa, 706, 72 X. W. 292; Fosburg v. Fuel Co., 93 Iowa, 54, 61 X. W. 400; Hathaway v. Railway Co., 92 Iowa, 337, 60 X. W. 651. KAXSAS: Hannibal & St. J. Ry. Co. v. Fox, 31 Kan. 586, 3 Pac. 320; Atchison, T. & S. F. R. Co. v. McKee, 37 Kan. 592, 15 Pac. 484; St. Louis & S. F. Ry. Co. T. Weaver, 35 Kan. 412, 11 Pac. 408; Missouri Pac. Ry. Co. v. Dwyer, 36 Kan. 58, 12 Pac. 352; Walker v. Gillett, 59 Kan. 214, 52 Pac. 442. KEX- TUCKY: Louisville & X. R. Co. v. Collins, 2 Duv. 117; Louisville, C. & L. R. Co. v. Cavens' Adm'r, 9 Bush, 566; Illinois Cent R. Co. v. Hilliard, 37 S. W. 75; Cincinnati, X. O. & T. P. Ry. Co. v. Palmer, 98 Ky. 382, 33 S. W. 199; Ashland Coal, Iron & Railway Co. v. Wallace's Adm'r, 42 S. W. 744; Edmondson v. Railway Co., 49 S. W. 200, 448. LOUISIAXA: The Ross Case followed: Towns v. Railway Co., 37 La. Ann. 632, 55 Am. Rep. 508; Fareu 148 LIABILITY OF MASTER TO SERVANT. (Ch. 3- employ^ was at the time of the injury engaged in the discharge of a primary duty owed by the master to all his servants, or was, in other words, a vice principal; but the true rule is much broader and more v. Sellers, 39 La. Ann. 1011, 3 South. 363; Mattise v. Manufacturing Co., 46 La. Ann. 1535, 16 South. 400. MAINE: Doughty v. Log Driving Co.. 70 Me. 143; Shanny v. Androscoggin Mills, 66 Me. 426; Wormell v. Railroad Co., 79 Me. 397, 10 Atl. 49. MARYLAND: Wonder v. Railroad Co., 32 Md. 411; Hanrathy v. Railway Co., 46 Md. 280; Yates v. Iron Co., 69 Md. 370, 16 Atl. 280; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338; Norfolk & W. R. Co. v. Hoover, 79 Md. 253, 29 Atl. 994. MISSISSIPPI: Code 1892, 3559; New Orleans, J. & G. N. R. Co. v. Hughes, 49 Miss. 258; Howd v. Rail- road Co., 50 Miss. 178; Illinois Cent. R. Co. v. Jones, 16 South. 300; MIS- SOURI: Dayharsh v. Railroad Co., 103 Mo. 570, 15 S. W. 554; Miller v. Railway Co., 109 Mo. 350, 19 S. W. 58; Moore v. Railway Co., 85 Mo. 588; Smith v. Rail- way Co., 92 Mo. 359, 4 S. W. 129; Foster v. Railway Co., 115 Mo. 165, 21 S. W. 916. Track repairer and engineer are not fellow servants, Schlereth v. Rail- way Co., 115 Mo. 87, 21 S. W. 1110; but brakeman upon one and fireman upon another freight train are fellow servants, Relyea v. Railroad Co., 112 Mo. 86, 20 S. W. 480; Sheehan v. Prosser, 55 Mo. App. 569; Musick v. Packing Co., 58 Mo. App. 322; Jones v. Railway Co., 125 Mo. 666, 28 S. W. 883; Rodney v. Railroad Co., 127 Mo. 676, 28 S. W. 887; Card v. Eddy, 129' Mo. 510, 28 S. W. 753, 979; Donahoe v. City of Kansas City, 136 Mo. 657, 38 S. W. 571; Bradley v. Railway Co., 138 Mo. 293, 39 S. W. 763. MONTANA: Regulated by statute. Comp. St. 1888, p. 817, 697. NEBRASKA: Chicago, St. P., M. & O. Ry. Co. v. Lundstrom, 16 Neb. 254, 20 N. W. 200; Burlington. & M. R. R. Co. v. Crockett, 19 Neb. 138, 26 N. W. 921; Sioux City & P. R. Co. v. Smith, 22 Neb. 775, 36 N. W. 285; Chicago, B. & Q. R. Co. v. How- ard, 45 Neb. 570, 63 N. W. 872; Omaha & R. V. Ry. Co. v. Crow, 54 Neb. 747, 74 N. W. 1066; Chicago, B. & Q. R. Co. v. Kellogg, 54 Neb. 127, 74 N. W. 454; Omaha & R. V. Ry. Co. v. Krayenbuhl, 48 Neb. 553, 67 N. W. 447; Un- ion Pac. R. Co. v. Doyle, 50 Neb. 555, 70 N. W. 43; Clark v. Hughes, 51 Neb. 780, 71 N. W. 776. NEW HAMPSHIRE: Jaques v. Manufacturing Co., 66 N. H. 482, 22 Atl. 552. NEW JERSEY: Rogers Locomotive & M. Works v. Hand, 50 N. J. Law, 464, 14 Atl. 760; McAndrews v. Burns, 39 N. J. Law, 117; Ewan v. Lippincott, 47 N. J. Law, 192. The separate department rule does not obtain, and those engaged in making instrumentalities may well be fel- low servants of those who are to use them. Rogers Locomotive & M. Works v. Hand, 50 N. J. Law, 464, 14 Atl. 766; Harrison v. Railway Co., 31 N. J. Law, 293. Nor does mere superiority of grade affect the relation. O'Brien v. Dredging Co., 53 N. J. Law, 291, 21 Atl. 324; Hardy v. Railroad Co., 57 N. J. Law, 505, 31 Atl. 281; Ingebretsen v. Steamship Co. (Err. & App.) 31 Atl. 619. NEW MEXICO: Cerrillos Coal R. Co. v. Deserant, 49 Pac. 807. NORTH CAROLINA: Ross Case, 112 U. S. 377, 5 Sup. Ct 184, followed; Mason v. Rail- 55) CONCURRENT AND CONTRIBUTORY NEGLIGENCE. 149 comprehensive than this, and it may be stated generally that when- ever the master has been guilty of the breach of a personal duty to a road Co., Ill N. C. 482, 16 S. E. 698; Pattern v. Railroad Co., 96 N. C. 455, 1 S. E. 863. Superiority of grade no test. Webb v. Railroad Co., 97 X. C. 387, 2 S. E. 440; Logan v. Railroad Co., 116 N. C. 940, 21 S. E. 959; Shadd v. Railroad Co., 96 N. C. 968, 21 S. E. 554; Pleasants v. Railroad Co., 121 N. C. 492, 28 S. E. 267. NORTH DAKOTA: The rule of the federal courts is quite closely followed. Ell v. Railroad Co., 1 N. D. 336, 48 N. W. 222. Primary duties cannot be delegated so as to relieve the master of liability. Ell v. Railroad Co., supra. OREGON: Miller v. Southern Pac. Co., 20 Or. 285, 26 Pac. 70; Carlson v. Railway Co., 21 Or. 450, 28 Pac. 497. Switchman is fel- low servant of train operatives. Miller v. Southern Pac. Co., 20 Or. 285, 26 Pac. 70. The question of superiority of grade does not appear to be fully settled. Knahtla v. Railway Co., 21 Or. 136, 27 Pac. 91; Fisher v. Railway Co., 22 Or. 533, 30 Pac. 429; Mast v. Kern, 54 Pac. 950. RHODE ISLAND: Separate department rule does not obtain. Brodeur v. Valley Falls Co., 16 R. 1. 448, 17 Atl. 54. Station agent held to be fellow servant of brakeman injured through negligence of former. Gaffney v. Railroad Co., 15 R. I. 456, 7 Atl. 284, following Brown v. Railway Co., 31 Minn. 553, 18 N. W. 834, and Hodgkins v. Railroad Co., 119 Mass. 419; Parker v. Railroad Co., 18 R. I. 773, 30 Atl. 849; Morgridge v. Telephone Co., 39 Atl. 328. SOUTH CAROLINA: Master is not relieved of responsibility by delegating primary duties. Calvo v. Railroad Co., 23 S. C. 526; Couch v. Railroad Co., 22 S. a 557; Coleman v. Railroad Co., 25 S. C. 446. Doctrine of Ross Case is fully indorsed. Boat- wright v. Railroad Co., 25 S. C. 128; Whaley v. Bartlett, 42 S. C. 454, 20 S. E. 745; Wilson v. Railway Co., 51 S. C. 79, 28 S. E. 91. TENNESSEE: Sep- arate department theory recognized as to railroads. Nashville & C. R. Co. v. Carroll, 6 Heisk. 347; Knoxville Iron Co. v. Dobson, 7 Lea, 367. Supe- riority of grade is, in some degree, a test, Knoxville Iron Co. v. Dobson, 7 Lea, 367; Louisville & N. R. Co. v. Lahr, 86 Tenn. 335, 6 S. W. 663; East Tennessee & W. N. O. R. Co. v. Collins, 85 Tenn. 227, 1 S. W. 883; a crew who negligently loaded a car with lumber are fellow servants of those who operate the train, Louisville & N. R. Co. v. Gower, 85 Tenn. 465, 3 S. W. 824; conductor being in charge of train, engineer is fellow servant of brake- man, East Tennessee V. & G. Ry. Co. v. Smith, 89 Tenn. 114, 14 S. W. 1077; and brakemen, brake repairers, and car inspectors are fellow servants, Nash- ville, C. & St. L. Ry. Co. v. Foster, 10 Lea, 351; Nashville, C. & St. L. R. Co. v. Gann (Sup.) 47 S. W. 493; National Fertilizer Co. v. Travis (Sup.) 49 S. W. 832; Knox v. Railway Co. (Sup.) 47 S. W. 491. TEXAS: Doctrine not well settled in this state. International & G. N. Ry. Co. v. Ryan, 82 Tex. 565, 18 S. W. 221; Gulf, C. & S. F. R. Co. v. Wells (Sup.) 16 S. W. 1025; Mis- souri Pac. Ry. Co. .v. Williams, 75 Tex. 4, 12 S. W. 835; Texas & P. Ry. Co. v. Reed, 88 Tex. 439, 31 S. W. 1058; San Antonio & A. P. Ry. Co. v. McDonald (Civ. App.) 31 S. W. 72; San Antonio & A. P. Ry. Co. v. Kel- 150 LIABILITY OF MASTER TO SERVANT. (Ch. 3 servant, whereby injury has resulted, he cannot defend by saying that the negligence of a fellow servant also contributed to produce the ler, 11 Tex. Civ. App. 569, 32 S. W. 847; Texas & N. O. Ry. Co. v. Bin- gle (Civ. App.) 41 S. W. 90; San Antonio & A. P. Ry. Co. v. Taylor (Civ. App.) 35 S. W. 855; Gulf, C. & S. F. Ry. Co. v. Warner, 89 Tex. 475, 35 S. W. 364; Southern Pac. Go. v. Ryan (Civ. App.) 29 S. W. 527; International & G. N. Ry. Co. v. Sipole, id. 686; San Antonio & A. P. Ry. Co. v. Bowles (Civ. App.) 30 S. W. 89; Same v. Reynolds, Id. 846; Texas & X. O. R. Co. v. Tatman, 10 Tex. Civ. App. 434, 31 S. W. 333; Gulf, C. & S. F. Ry. Co. v. Calvert, 11 Tex. Civ. App. 297, 32 S. W. 246; San Antonio & A. P. Ry. Co. v. Harding, 11 Tex. Civ. App. 497, 33 S. W. 373; Sanner v. Railway Co. (Civ. App.) 43 S. W. 533; Terrell Compress Co. v. Arrington (Civ. App.) 48 S. W. 59; Houston & T. C. R. Co. v. Patterson, Id. 747; Same v. Stuart, Id. 799. UTAH: Anderson v. Mining Co., 16 Utah, 28, 50 Pac. 815; Dryburg v. Milling Co., 55 Pac. 367. VERMONT: Respondea.t superior does not apply where an order is negligently given by a servant in command to an inferior servant Davis v. Railroad Co., 55 Vt. 84. The master is jealously held to the performance of his primary duties, the early decision in Hard v. Railroad Co., 32 Vt. 473, being disapproved. VIRGINIA: Norfolk & W. R. Co. v. Don- nelly's Adm'r, 88 Va. 853, 14 S. E. 692; Richmond & D. R. Co. v. Norment, 84 Va. 167, 4 S. E. 211; Moon's Adm'r v. Railroad Co., 78 Va. 745; Ayer's Adm'x v. Railroad Co., 84 Va. 679, 5 S. E. 582; Johnson's Adm'x v. Railroad Co., 84 Va. 713, 5 S. E. 707; Richmond & D. R. Co. v. Williams, 86 Va. 165 T 9 S. E. 990; Norfolk & W. R. Co. v. Brown, 91 Va. 668, 22 S. E. 496; Mc- Donald's Adm'r v. Railroad Co., 95 Va. 98, 27 S. E. 821; Norfolk & W. R. Co. v. Houchins' Adm'r, 95 Va. 398, 28 S. E. 578; Richmond Locomotive Works v. Ford, 94 Va. 627, 27 S. E. 509; Moore Lime Co. v. Richardson's Adm'r, 95 Va. 326, 28 S. E. 334. WASHINGTON: Sayward v. Carlson, 1 Wash. St. 29, 23 Pac. 830; Zintek v. Mill Co., 6 Wash. 178, 32 Pac. 997; Ogle v. Jones, 16 Wash. 319, 47 Pac. 747; McDonough v. Railway Co., 15 Wash. 244, 46 Pac. 334; Bateman v. Railway Co., 54 Pac. 996; Hughes v. Improvement Co., 55 Pac. 119. WEST VIRGINIA: If the inferior servant is substantially under the control of the superior, they are not fellow servants. Madden's Adm'r v. Railroad Co., 28 W. Va. 610. A car checker and engineer operating switch engine in same yard are fellow servants, Beuhring's Adm'r v. Railway Co., 37 W. Va. 502, 16 S. E. 435; but brakeman and conductor on different trains are not fellow servants, Daniel's Adm'r v. Railway Co., 36 W. Va. 397, 15 S. E. 162; Johnson v. Railway Co., 36 W. Va. 73, 14 S. E. 432; Flannegan v. Railway Co., 40 W. Va. 436, 21 S. E. 1028; Jackson v. Railroad Co., 43 W. Va. 380, 27 S. E. 278, 31 S. E. 258. ' WISCONSIN: The master cannot dele- gate primary duties so as to escape liability, Brabbits v. Railway Co., 38 Wis. 289; and a suitable place for doing the work must be not only pro- vided, but properly maintained, Bessex v. Railway Co., 45 Wis. 477; and must use ordinary care in selection of servants, Heine v. Railway Co., 58 Wis. 55) CONCURRENT AND CONTRIBUTORY NEGLIGENCE. 151 injury. 1 If a machine is defective or improper for the intended use, the employer is liable for injury to an employe" caused thereby, al- though the negligence of a fellow servant may have contributed to the result. 2 If the servant is, however, responsible for the selection of an improper instrument, other and suitable ones being available, it follows, as of course, that he cannot recover, as no fault rests on the master. 3 531, 17 X. W. 420. The Wisconsin doctrine closely follows the New York rule. On the general subject see Johnson y. Bank, 79 Wis. 414, 48 N. W. 712; Dwyer v. Express Co., 82 Wis. 307, 52 X. W. 304; McClarney v. Railway Co., 80 Wis. 277, 49 X. W. 963; Cadden v. Barge Co., 88 Wis. 409, 60 N. W. 800; Eingartner v. Steel Co., 94 Wis. 70, 68 X. W. 664; Smith v. Railway Co., 91 Wis. 5C3, G5 X. W. 183; Prybilski v. Railway Co., 98 Wis. 413, 74 X. W. 117; Jarnek y. Dock Co., 97 Wis. 537, 73 N. W. 62; McMahon v. Min- ing Co., 101 Wis. 102, 76 X. W. 1098. WYOMIXG: The few decisions in this state seem to incline strongly to the rule of the federal court MeBride v. Railway Co., 3 Wyo. 247, 21 Pac. 687. 55. i Franklin y. Railroad Co., 37 Minn. 409, 34 X. W. 898; Graver v. Christian. 36 Minn. 413, 31 X. W. 457; Grand Trunk Ry. Co. v. Cummings, 106 U. S. 700, 1 Sup. Ct 493; Stringham v. Stewart, 100 X. Y. 516, 3 X. E. 575; Elmer y. Locke, 135 Mass. 575; Pullman Palace-Car Co. v. Laack, 143 111. 242, 32 X. E. 2S5; Browning y. Railway Co., 124 Mo. 55, 27 S. W. 644; Denyer & R. G. R. Co. v. Sipes (Colo. Sup.) 55 Pac. 1093; International & G. N. R. Co. v. Bonatz (Tex. Civ. App.) 48 S. W. 767; Missouri, K. & T. Ry. Co. of Texas v. Hannig (Tex. Civ. App.) 49 S. W. 116; Wheatley y. Railroad Co., 1 Mary. 305, 30 Atl. 000; Lago v. Walsh, 98 Wis. 348, 74 X. W. 212; Jensen y. The Joseph B. Thomas, 81 Fed. 578; Wright v. Southern Pac. Co., 14 Utah, 383, 46 Pac. 374; Haudley v. Mining Co., 15 Utah, 176, 49 Pac. 295. 2 Young y. Railway Co., 46 Fed. 160, affirmed in 1 C. C. A. 428, 49 Fed. 723. See, also, Rogers v. Leyden, 127 Ind. 50-53, 26 X. E. 210; Richmond & D. R. Co. v. George, 88 Va. 223, 13 S. E. 429; Xorthwestern Fuel Co. v. Danielson, 6 C. C. A. 636, 57 Fed. 915-919; Browning y. Railway Co., 124 Mo. 55, 27 S. W. 644; Steinke v. Match Co., 87 Wis. 477, 58 X. W. 842; Frank- lin v. Railroad Co., 37 Minn. 409, 34 X. W. 898; Gardner y. Railroad Co., 150 U. S. 349, 14 Sup. Ct. 140; Leonard y. Kinnare, 174 111. 532, 51 X. E. 688; In- ternational & G. X. R. Co. v. Zapp (Tex. Ciy. App.) 49 S. W. 673; Chicago & X. W. Ry. Co. v. Gillison, 173 111. 264, 50 X. E. 657; Lauter v. Duckworth, 19 Ind. App. 535, 48 X. E. 864; Stucke y. Railroad Co., 50 La. Ann. 172, 23 South. 342; Troxler y. Railway Co., 122 X. C. 902, 30 S. E. 117. 3 Thyng y. Railroad Co., 156 Mass. 13, 30 X. E. 169; Hefferen v. Railroad Co., 45 Minn. 471, 48 X. W. 1. 152 LIABILITY OF MASTER TO SERVANT. (Ch. 3 SAME SERVANT'S OWN NEGLIGENCE AS PROXIMATtt CAUSE. 66. In any event the servant cannot recover from the mas- ter if his own negligence proximately caused the injury complained of. In considering the reciprocal duties of master and servant, and the involved doctrine of fellow servant, it must not be overlooked that the law of contributory negligence is in no degree abated, and may al- ways be shown as a complete bar to recovery. Thus, the fact that a stop block at the end of a trestle was defective will not render the company liable for the death of an engineer who ran his engine off the end of the trestle, when the accident was caused by running the engine at such a rate of speed that no block would have been effect- ive. 1 56. i Louisville & X. R. Co. v. Stutts, 105 Ala. 368, 17 South. 29; Cen- tral Railroad & Banking Co. v. Brantley, 93 Ga. 259, 20 S. E. 98; City of Lebanon v. McCoy, 12 Ind. App. 500, 40 N. E. 700; Nelling v. Railroad Co., 98 Iowa, 554, 63 N. W. 568, 67 X. W. 404; Light v. Railway Co., 93 Iowa, 83, 61 N. W. 380; Duval v. Hunt, 34 Fla. 85, 15 South. 876. A fireman falling asleep in the roundhouse with foot on track, Price v. Railroad Co., 77 Mo. 508; conductor failing to stop his train in time to prevent collision, Chicago & N 1 . W. R. Co. v. Snyder, 117 111. 376, 7 N. E. 604; Clark v. Railroad Co., 80 Hun, 320, 30 N. Y. Supp. 126; brakeman uncoupling cars contrary to rules, Lock- wood v. Railway Co., 55 Wis. 50, 12 X. W. 401; Robinson v. Manufacturing Co., 143 Mass. 528, 10 N. E. 314; Crabell v. Coal Co,, 68 Iowa, 751, 28 X. W. 66. 57) LIABILITY OF MASTER TO THIRD PERSONS. 153 CHAPTER IV. LIABILITY OF MASTER TO THIRD PERSONS. 57. Nature of Master's Liability. 58. Relationship. 59-60. Independent Contractor. 61. Reasonable Care in Selection of Contractor. 62. Liability When the Object of the Contract is Unlawful. 63. Absolute Personal Duties. 64. Willful Torts of Servants. 65. Torts Outside Scope of Employment. 66. Independent Torts. NATURE OF MASTER'S LIABILITY. 57. The master is liable for the negligence of his servant occurring -within the course of his employment; but not (a) When the negligence concerns matters foreign to the general business; nor (b) When the business is transacted by an independent contractor. The liability of the master to third persons for the negligent or wrongful acts of those in his employment is based on the broad prin- ciple of the general security of society and business. As every one is responsible for the results of his own negligence, a person may not devest himself of liability by deputizing another to act for him, and then disclaiming the consequence of his acts, if they result in injury to the person, property, or reputation of another. In the early case of Quarman v. Burnett, 1 Parke, B., was of the opinion that he was properly held liable "who selected him as his servant, from the knowl- edge of, or belief in, his skill and care, and who could remove him for misconduct, and whose orders he was bound to receive and obey." 57. 16 Mees. & W. 499. See, also, Hern v. Nichols, 1 Salk. 289. And in Lane v. Cotton, 12 Mod. 473, the liability of the master for injuries inflicted by his servant on a stranger was placed on the ground that the stranger had had no hand in selecting the servant. 154 LIABILITY OF MASTER TO THIRD PERSONS. (Ch. 4 Thus, where a servant was ordered to shovel snow from a roof, his- master was held liable to a third person for his carelessness in per- forming the work. 2 And the broad principle of this rule of law cannot be narrowed or thwarted by permitting the master to plead that the servant was act- ing contrary to specific instructions or outside the definite bounds of his authority. To permit this defense would be to abrogate the doc- trine of respondeat superior. And so, where the defendants sent their servant to make a test of a boiler under a pressure not to exceed 150 pounds, and he, acting partly on the request of the purchaser and partly on his own judgment, raised the pressure to 198 pounds, and then held down the lever of the safety valve so that the boiler ex- ploded and injured a passer-by, it was held that, although the servant's- action was foolhardy and contrary to express instructions, it was- nevertheless committed within the scope of defendants' business, and they were liable. 3 Although a strict enforcement of the rule fre- quently appears to work a hardship on one who has used every pre- caution in the choice of his servants, it is, nevertheless, so generally ingrafted in the conduct of all lines of business and society that the importance of its maintenance can hardly be overestimated. 4 2 Althorf v. "Wolfe, 22 N. Y. 355; where a driver in defendant's employ- ment carelessly ran over plaintiff, a pedestrian, Groth v. Washburn, 89 N. Y. 615; where an apprentice borrowed his employer's team to take a ride, and carelessly injured plaintiff, Sherwood v. Fischer, 3 Hun (N. Y.) 606. 3 Ochsenbein v. Shapley, 85 N. Y. 214; and where wheat was consigned to- Albany, and the master of the boat, on reaching that point, was directed by consignees to proceed to a point further on, before reaching which the cargo- was injured, Gibbs v. Van Buren, 48 N. Y. 661; Quinn v. Power, 87 N. Y. 535. The doctrine of "particular command," as a test of the master's liability, was in force in the time of Edward I., and is thus stated by Bacon: "In commit- ting of lawful authority to another, a party may limit it as strictly as it pleaseth him; and if the party authorized do transgress his authority, though it be but in circumstance expressed, yet it shall be void in the whole act." Bac. Max. 16. See, also, Jag. Torts, p. 249. * The historic origin of the rule is uncertain, but is ascribed by Chancellor Kent to the Roman law. "The true explanation of the doctrine seems to be historical, dating back to the period of the Roman law, when servants were slaves, for whom paterfamilias was responsible as part of his general responsi- bility for the family which he represented and governed." 2 Kent, Comnu U-th Ed.) 260, note 1. 58) RELATIONSHIP. 155 RELATIONSHIP. 58. To establish the master's liability, it is essential (a) That the relation of principal and agent exist at the time of the wrongful act. (b) That the -wrongful act be committed fairly within the scope of the general business for -which the serv- ant is engaged. The relationship may be the result of definite agreement or may be inferable from the circumstances of a given case, but its establish- ment by some means is a sine qua non to the application of the doc- trine of respondeat superior. 1 And, when the privity is destroyed, it follows, as a corollary, that the responsibility of the master termi- nates. 2 And if one knowingly and customarily avails himself of the services of another, although he has not employed him and does not pay him, he will be liable as an employer for his negligence in the business in which he serves him. Thus, where the defendant rail- road used the roundhouse of another company, and a servant of the latter was accustomed to bring defendant's engines out when re- quired, while so engaged he was held to be in the service of the de- fendant, which w r as liable for his negligence while so employed. 3 The cases are somewhat conflicting and unsatisfactory in defining the employer's liability when the injury is caused by the negligence of one employed by a servant without the authority, sanction, or knowledge of the master. In at least some of the cases ordinarily cited to affirm the master's liability in such circumstances, examina- tion discloses that a quasi custom or quasi knowledge was established 58. i Thorpe v. Railroad Co., 7G X. Y. 402; Dwinelle v. Same, 120 N. Y. 117, 24 N. E. 319; Pennsylvania Co. v. Roy, 102 U. S. 451; Wood v. Cobb, 13 Allen (Mass.) 58; Kimball v. Cushman, 103 Mass. 194; Ward v. Fibre Co., 154 Mass. 419, 28 N. E. 299; Welsh v. Parrish, 148 Pa. St. 599, 24 Atl. 86; Cor- coran v. Railroad Co., 6 C. C. A. 231, 56 Fed. 1014. 2 A discharged employ*} maliciously misplaced a switch. East Tennessee, V. & G. R. Co. v. Kane, 92 Ga. 187, 18 S. E. 18; Illinois Cent. R. Co. v. Andrews, 78 111. App. 80; Healey v. Lothrop, 171 Mass. 263, 50 N. E. 540. s Missouri, K. & T. Ry. Co. v. McGlamory (Tex. Civ. App.) 34 S. W. 359; Denver & R. G. R. Co. v. Gustafson. 21 Colo. 393, 41 Pac. 505; Wellman y. Miner, 19 Misc. Rep. 644, 44 X. Y. Supp. 417. 156 LIABILITY OF MASTER TO THIRD PERSONS. (Ch. 4 by the evidence, 4 while in a few instances the liability is unqualifiedly asserted 5 or denied. 6 If the injury is caused by the impertinent inter- ference of a stranger, without the request or consent of the servant, it is evident that the master cannot be held responsible. 7 While in many cases the existence of the relationship is undisputed, it frequently happens that some difficulty is experienced in determin- ing the proper person to be charged with liability as master. In such cases, reference must be had to the contract of service as well as to the particular circumstances. When a contractor let his servant and team to the city by the day, although it appeared that he was under the exclusive control of the city, his master was nevertheless held liable for damages caused by the horse kicking a loose shoe through an adjacent window while his driver was beating him. 8 In determining who is the master, the question of choice or selection of the servant is important, although not decisive. 9 The master, in hiring out his servant, may so completely part with his authority and control over him as to be released from the responsibility, which is thereby shifted to his immediate employer. 10 The matter of selec- * Gleason v. Amsdell, 9 Daly (N. Y.) 393; Simons v. Monier, 29 Barb. (N. Y.) 419. 5 Suydam v. Moore, 8 Barb. (N. Y.) 358; Althorf v. Wolfe, 22 N. Y. 355; Ryan v. Boiler Works, 68 Mo. App. 148; Sinaltz v. Boyce, 109 Mich. 382, 69 N. W. 21; Booth v. Mister, 7 Car. & P. 66. e Jewell v. Railway Co., 55 N. H. 84. t Edwards v. Jones, 67 How. Prac. 177. s Huff v. Ford, 126 Mass. 24; Quinn v. Construction Co., 46 Fed. 506. See, also, Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381; Colvin v. Peabody, 155 Mass. 104, 29 N. E. 59. And, in a contract to manufacture and ship goods, the designation of a certain person to care for the goods does not make him an agent of both parties, so as to relieve the shipper from liability for his negligence or incompetency. Paige v. Roeding, 96 Cal. 388, 31 Pac. 264. A person employed by master's servant without his knowledge or author- ity is not his servant, Mangan v. Foley, 33 Mo. App. 250; and the person so employed assumes the risks of his employment, Blair v. Railroad Co., 60 Mich. 124, 26 N. W. 855; Jewell v. Railway Co., 55 X. H. 84; Gahagan v. Aermoter Co., 67 Minn. 252, 69 N. W. 914; Hess v. Mining Co., 178 Pa. St. 239, 35 Atl. 990. 10 Brown v. Smith, 86 Ga. 274, 12 S. E. 411; Burke v. De Castro, 11 Hun Wis. 657; Bryant v. Rich, 106 Mass. 180; Philadelphia & R. R. Co. v. Derby, 14 How. (U. S.) 468; Goddard v. Railway Co., 57 Me. 202; McKinley v. Rail- road Co., 44 Iowa, 314; Sherley v. Billings, 8 Bush (Ky.) 147 (per contra Little Miami R. Co. v. "Wetmore, 19 Ohio St. 110); Palmeri v. Railway Co., 133 X. Y. 261, 30 N. E. 1001; Warner v. Pacific Co., 113 Cal. 105, 45 Pac. 187. See, also, consideration of this matter by Thos. S. Gates in Texas & P. Ry. Co. v. Scoville, 62 Fed. 730, 34 Am, Law Reg. 120. 65) TORTS OUTSIDE SCOPE OF EMPLOYMENT. 1 7 1 ater has a right to be protected while in the theater, and if the- ticket agent call out to any one of the audience to "put him out" the proprietor will be liable for his wrongful ejectment. 3 A mer- chant owes a duty to customers whom he has invited to enter his- store or premises, and is responsible for willful and malicious ar- rests 4 and assaults 5 upon them by his servants; and, even where an insane servant killed a person who was in the master's office on business, the master was liable. 6 Hours of Employment not a Test of Liability. While it is true that the master is not liable for the tort of hi servant committed after the employment is ended, 7 the hours of employment do not constitute a satisfactory or decisive test of lia- bility. For, on the one hand, the servant may commit an inde- pendent tort during the hours of work, 8 and, on the other hand, he may do something outside of working hours, either negligent or willful, which will render his master liable. 9 a Drew v. Peer, 93 Pa. St. 234. And see, also, Dickson v. Waldron, 135 Ind. 507, 34 N. E. 506, and 35 X. E. 1. * Geraty v. Stern, 30 Hun (N. Y.) 426; Clack v. Supply Co., 72 Mo. App. 506; Knowles v. Bullene, 71 Mo. App. 341; Stranahan Bros. Catering Co. y~ Coit, 55 Ohio St. 398, 45 X. E. 634 (but see Mali v. Lord, 39 N. Y. 381). e Mallach v. Ridley (Sup.) 9 X. Y. Supp. 922. e Christian v. Railway Co., 90 Ga. 124, 15 S. E. 701. Duty of railroad company to one standing on its platform. Ohio & M. Ry. Co. v. Simms, 43 111. App. 260. And if in a saloon an intoxicated person, in the presence of the proprietor, attach a burning piece of paper to his drunken companion's clothes, the proprietor is liable for damages resulting. Rommel v. Schambacher, 120- Pa. St. 579, 11 AtL 779; Brazil v. Peterson, 44 Minn. 212, 46 N. W. 331. 7 Yates v. Squires, 19 Iowa, 26; Baird v. Pettit, 70 Pa. St. 477-483; Hurst r. Railroad Co., 49 Iowa, 76; Baltimore & O. R. Co. v. State, 33 Md. 542-554. But see Ewald v. Railway Co., 70 Wis. 420, 36 N. W. 12. s Hower v. Ulrich, 156 Pa. St. 410, 27 Atl. 37. a Xoblesville & E. Gravel Road Co. v. Cause, 76 Ind. 142; Broderick v. De- pot Co., 56 Mich. 261, 22 N. W. 802; Morier v. Railway Co., 31 Minn. 351, 17 X. W. 952; Rosenbaum v. Railroad Co., 38 Minn. 173, 36 N. W. 447; Wink v. Weiler, 41 111. App. 336; Evansville & R. R. Co. v. Maddux, 134 Ind. 571, 33 X. E. 345. 172 LIABILITY OF MASTER TO THIRD PERSONS. (Ch. 4 INDEPENDENT TOETS. 66. For the independent, individual torts of his servants the master is not liable. 1 The question of what conduct is -within and -what is -without the course of employment is ordinarily one of fact for the jury. But when one who is in fact a servant commits a tort, it is not clear what amount of deviation from the course of his employment is suf- ficient to interrupt the relation so as to relieve the master from lia- bility. In the earlier cases a very slight deviation was held sufficient to exonerate the master, but they are no longer generally followed in this respect. Strong distinctions appear in the different classes of cases. Thus, a carrier may be liable for forbidden assaults by his agents upon passengers, to whom he owes a peculiar duty, 2 but when the duty is performed the liability ceases, and an assault .upon a passenger after he has left the train creates no responsibility upon the railroad company. 3 Nor is the company responsible for a purely personal encounter between its employe's and persons between whom and the corporation there is no privity.* But a master is liable for the act of his clerk in assaulting another because he refused to pay for a bicycle, 5 or of his bartender in ejecting a person from his sa- loon. 6 The driving cases are analogous. If the driver, abandoning his master's service, engages in a journey wholly foreign to the em- ployment, and for a purpose exclusively his own, the master is not 66. i Hower v. Ulrich, 156 Pa. St. 410, 27 Atl. 37. 2 Baltimore & O. R. Co. v. Barger, 80 Md. 23, 30 Atl. 560. Although the assault was committed in resenting an insult. Texas & P. Ry. Co. v. Wil- liams, 10 C. C. A. 463, 62 Fed. 440; Savannah, F. & W. Ry. Co. v. Quo, 103 Ga. 125, 29 S. E. 607; Williams v. Gill, 122 N>. C. 967, 29 S. E. 879; Louisville & N. R. Co. v. Donaldson (Ky.) 43 S. W. 439. s Central Ry. Co. v. Peacock, 69 Md. 257, 14 Atl. 709; Hanson v. Railway Co., 75 111. App. 474. *Gilliam v. Railroad Co., 70 Ala. 268; Candiff v. Railway Co., 42 La. Ann. 477, 7 South. 601. See, also, Cofleld v. McCabe, 58 Minn. 218, 59 N. W. 1005; Golden v. Newbrand, 52 Iowa, 59, 2 N. W. 537. 5 Baylis v. Cycle Co. (City Ct. Brook.) 14 N. Y. Supp. 933. Fortune v. Trainor, 65 Hun, 619, 19 N. Y. Supp. 598; Brazil v. Peterson, 44 Minn. 212, 46 N. W. 331. 66) INDEPENDENT TORTS. 173 liable for Ms acts while so engaged. 7 But where a driver, delivering porter by the barrel, to a customer, at his request drove to a store to get him a faucet, and by reckless driving injured plaintiff, it was for the jury to determine whether or not the driver was acting within the scope of his authority. 8 Substantially the same distinction holds in cases of false arrest, It was formerly held in New York that the test of liability was the command of the master, either actual or implied. 9 This rule did not obtain for any great length of time. It was soon recognized that it was the course of employment, not the command of the master, which determined the liability, and that the master would be liable although the conduct of the servant exceeded the authority. 10 The distinction between what is and what is not in the due course of employment i& well illustrated by the following cases: A ticket agent, having caused the arrest of one who had paid him good money, but whom he suspected of being a counterfeiter, it was held that his conduct was merely in the capacity of a citizen, and not in that of an employe" of the railroad company. 11 But where a dispute arose as to the amount of change which had been given to the purchaser by the ticket agent, and the latter followed her to the platform, charged her with passing counterfeit money, detained her, and called her vile names, it was 7 Mitchell v. Crassweller, 13 C." B. 237; Aycrigg's Ex'rs v. Railroad Co., 30 X. J. Law, 460; Douglass v. Stephens, 18 Mo. 362; Thorp v. Minor, 109 X. C. 152, 13 S. E. 702; Moore v. Sanborne, 2 Mich. 520; Courtney v. Baker, 00 X. Y. 1; Cavanagh v. Dinsmore, 12 Hun, 465; Stone v. Hills, 45 Conn. 44; Mott v. Ice Co., 73 X. Y. 543; Joel v. Morison, 6 Car. & P. 501; Ray- iier v. Mitchell, 2 C. P. Div. 357; Storey v. Ashton, L. R. 4 Q. B. 476. s Guinney v. Hand, 153 Pa. St. 404, 26 Atl. 20. Servant deviating from hia established route on his own account, and leaving his team unhitched, mas- ter is liable for injuries caused by team running away. Ritchie v. Waller, 63 Conn. 155, 28 Atl. 29; Quinn v. Power, 87 X. Y. 535; Flint v. Transporta- tion Co., 34 Conn. 554; Mulvehill v. Bates, 31 Minn. 364, 17 N. W. 959; Jos- lin v. Ice Co., 50 Mich. 516, 15 N. W. 887. 9 Mali v. Lord, 39 N. Y. 381; Lafitte v. Railroad Co., 43 La. Ann. 34, 8 South. 701. 10 Lynch v. Railroad Co., 90 N. Y. 77; Smith v. Munch, 65 Minn. 256, 68- N. W. 19; Eichengreen v. Railroad Co., 96 Tenn. 229, 34 S. W. 219. 11 Mulligan v. Railway Co., 129 N. Y. 506, 29 N. E. 952; Davis v. Hough- tellin, 33 Neb. 582, 50 X. W. 765; Allen v. Railroad Co., L. R. 6 Q. B. 65; Ed- wards v. Railway Co., L. R. 5 C. P. 445. 174 LIABILITY OF MASTER TO THIRD PERSONS. (Ch. 4 held that the agent's conduct was in the line of his employment; that he was endeavoring to protect its interests, and recover its property ; that the tort was not his individual wrong, and that the company -was liable. 12 Each case must be determined in the light of the attendant facts, .and whether the particular conduct is within the course of the em- ployment is ordinarily a question of fact for the jury. 13 Where, how- ever, there is no evidence forming a reasonable basis for the con- clusion that the particular conduct was in the course of the employ- ment, the court should take the case from the jury. 1 * Real and Personal Property No Distinction in Principle. It was formerly supposed that the duty resting upon the owner of real estate was of a higher order than any connected with personalty, .and that for the negligence of one employed thereon for the owner's benefit he would be held to a more strict accounting. This distinc- tion between owners of real estate and owners of personalty is no longer recognized. 15 12 Palmeri v. Railway Co., 133 X. Y. 261, 30 X. E. 1001; Fortune v. 'Trainor, 65 Hun, 619, 19 X. Y. Supp. 598; Smith v. Webster, 23 Mich. 298; Oakland City Agricultural & Industrial Soc. v. Bingham, 4 Ind. App. 545, 31 X. E. 383; Harden v. Felch, 109 Mass. 154; Cameron v. Express Co., 48 Mo. App. 99; Kolzem v. Railroad Co. (Com. PI.) 1 Misc. Rep. 148, 20 N. Y. Supp. 700; Duggan v. Railroad Co., 159 Pa. St. 248, 28 Atl. 182; Staples v. Schmid, 18 K. I. 224, 26 Atl. 193. is Smith v. Spitz, 156 Mass. 319, 31 X. E. 5; Guinney. v. Hand, 153 Pa. St 404, 26 Atl. 20; Brunner v. Telegraph Co., 151 Pa. St. 447, 25 Atl. 29; Lang v. Railroad Co., 80' Hun, 275, 30 X. Y. Supp. 137; Tinker v. Railroad Co., 71 Hun, 431, 24 X. Y. Supp. 977, distinguishing Mulligan v. Railway Co., 129 K Y. 506, 29 X. E. 952; Pittsburgh, Ft. W. & C. Ry. Co. v. Maurer, 21 Ohio .St 421; Dells v. Stollenwerk, 78 Wis. 339, 47 X. W. 431; Robinson v. Rail- way Co., 94 Wis. 345, 68 X. W. 961. i* Towanda Coal Co. v. Heeman, 86 Pa. St, 418; Bank of Xew South Wales T. Owston, 4 App. Cas. 270. IB Reedie v. Railway Co. (1849) 4 Exch. 243; Bush v. Steinman (1799) 1 Bos. .& P. 404; Quarman v. Burnett (1840) 6 Mees. & W. 499; McCafferty v. Rail- road Co., 61 N. Y. 178, distinguishing Storrs v. City of Utica, 17 X. Y. 104; Water Co. v. Ware, 16 Wall. 566; Hay v. Cohoes Co., 2 X. Y. 159. 67) COMMON CARRIER OF PASSENGERS. 175 CHAPTER V. COMMON CARRIER OF PASSENGERS. 67. Definition. 68. The Relation of Passenger and Carrier. 69. Termination of Relation. 70. Arrival of Passenger at Destination. 71. Transfer of Passenger to Connecting Carrier. 72. Ejection of Passenger. 73. Who are Passengers Definition. 74. Prepayment of Fare. 75. Classification of Passengers. 76. The Contract. 77. The Ticket as Evidence. 78. Compensation. 79. Liability to Passengers. 80. Liability for Delay. 81. Limitation of Liability. DEFINITION. 67. Any person, partnership, or corporation -whose gen- eral business, either in whole or in part, consists in the transportation of passengers for hire or ben- efit of any kind, is a common carrier. They are: (a) Public carriers, -who are bound to accept for trans- portation, -without discrimination as to compensa- tion or service, all proper persons -who are not for any reason liable to injure other passengers; 1 or (b) Private carriers, who carry only incidentally or un- der special contracts. 67. i Eads v. Railway Co., 43 Mo. App. 536; but need not carry one with contagious disease, Paddock v. Railroad Co., 37 Fed. 841; nor on Sunday, Walsh v. Railway Co., 42 Wis. 23; nor an insane person, Meyer v. Railway Co., 4 C. C. A. 221,. 54 Fed. 116; Atchison. T. & S. F. R. Co. v. Weber, 33 Kan. 543, 6 Pac. 877; nor a person so intoxicated as to be disgusting or annoying to other passengers, Pittsburgh, C. & St. L. Ry. Co. v. Vandyne, 57 Ind. 576; Vinton v. Railroad Co., 11 Allen (Mass.) 304. 176 COMMON CARRIER OF PASSENGERS. (Ch. 5- In its ordinary significance, the term "common carrier" is applied to public carriers only, but it is no less applicable to any person or company which transports people for hire. It is of the former class, so largely in the majority, that this chapter mainly treats. The duties and liabilities of a private carrier are greatly abridged. He is bound to carry those only whom he may select, and his duty to- wards them is discharged by the exercise of ordinary care only^ Where railroad contractors, operating a construction train, take on a passenger for hire as a mere favor, they are responsible only for the exercise of such skill and care in its management and operation as ordinarily prudent and cautious men would exercise under similar circumstances. 2 In such a case the court said of the contractors: "They did not hold themselves out as capable of carrying passengers safely, they had no arrangements for passenger service, and they were not required to make provisions for the protection of the road r such as are usually adopted and exacted of railroad companies." * If, however, the carriage of persons upon construction trains is cus- tomary, persons having no knowledge of a contrary rule of the com- p..ny would have a right to rely on the supposed authority of the conductor in charge to grant permission to ride thereon.* THE RELATION OF PASSENGER AND CARRIER. 68. The relation of passenger and carrier begins -when the person intending passage has entered the vehicle or has entered upon the grounds or premises of the carrier in the customary manner for the purpose of embarkation "within a reasonable time. 1 The relation of passenger and carrier must usually be inferred from circumstances. A person about to take passage upon a train 2 Shoemaker v. Kingsbury, 12 Wall. 369. s Shoemaker v. Kingsbury, 12 Wall. 369. * St. Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461. But see Evansville & R. R. Co. v. Barnes, 137 Ind. 306, 36 N. E. 1092. Logging com- pany a carrier. Albion Lumber Co. v. De Nobra, 19 C. C. A. 168, 72 Fed. 739. 68. i Chicago & E. I. R. Co. v. Chancellor, 60 111. App. 525. A reason- able time. Harris v. Stevens, 31 Vt. 79. Intention to take a train by per- son waiting in station makes him a passenger. Grimes v. Pennsylvania Co., 36 Fed. 72. > 68) THE RELATION OF PASSENGER AND CARRIER. 177 does not formally deliver his body over to tbe conductor or otber agent of tbe company; he merely conducts bimself, directs bis move- ments, in a manner usual witb tbose about to undertake a journey in similar circumstances. Tbe point to be determined is whether the would-be traveler has so conducted himself in the circumstances that the carrier must be deemed to have accepted him as its pas- senger, and, if this point is affirmatively shown, it is immaterial that the contemplated journey has not been actually begun. There are, of course, certain reasonable limitations to such an inference of a contract; and so, where a person boarded a railway train after it had started, it was held that he did not thereby become a passenger until he had reached a safe place in the car. 2 But where the carrier provides a waiting room at its station, and a person, intending pas- sage within a reasonable time, enters such room to await the train, he becomes, and is entitled to all the rights of, a passenger. 3 And when a person attempts to board an omnibus or street car which has slowed up or stopped in response to his signal, whether he is successful or not, he is none the less a passenger, while the attempt is being made with the knowledge and acquiescence of the carrier. 4 The implied invitation of the carrier to the public to become passen- gers upon its vehicles does not cover every time and place; the time must be proper, the place suitable, and the traveler must offer him- self in an ordinarily prudent and reasonable manner; and where a would-be passenger ran, rapidly and carelessly, directly in front of an incoming train, it was held that he did not hold himself in read- 2 Merrill v. Railroad Co., 139 Mass. 238, 1 N. E. 548; Sharrer v. Paxson, 171 Pa. St. 26, 33 Atl. 120. a Gordon v. Railroad Co., 40 Barb. 546; Grimes v. Pennsylvania Co., 36 Fed. 72; Phillips v. Railway Co. (N. C.) 32 S. E. 388; Wells v. Railroad Co., 25 App. Div. 365, 49 N. Y. Supp. 510; St. Tx>uis S. W. Ry. Co. v. Franklin (Tex. Civ. App.) 44 S. W. 701; St. Louis S. W. Ry. Co. v. Griffith, 12 Tex. Civ. App. 631, 35 S. W. 741. * Brien v. Bennett, 8 Car. & P. 724; Smith v. Railway Co., 32 Minn. 1, 18 N. W. 827. But mere fact of signaling and intent of driver to stop ear is not sufficient to establish the relation. Donovan v. Railway Co., 65 Conn. 201, 32 Atl. 350. See, also, Schepers v. Railroad Co., 126 Mo. 665, 29 S. W. 712; Jones v. Railroad Co., 163 Mass. 245, 39 X. E. 1019; Rogers v. Steamboat Co., 86 Me. 261, 29 Atl. 1069; Washington & G. R. Co. v. Patterson, 9 App. D. C. 423; Young v. Railroad Co. (Mass.) 50 N. E. 455; Chicago & E. I. R. Co. v. Chancellor, 60 111. App. 525. BAR.NEG. 12 178 COMMON CARRIER OF PASSENGERS. (Ch. 5 iness to be taken as a passenger, nor present himself in a proper way. 6 But the actual purchase of a ticket or entrance into the ve- hicle of the carrier is not essential to the establishment of the rela- tion of passenger and carrier. 6 Thus, a person who is injured while attempting to board a train under the direction of the servants of the carrier is a passenger, whether a ticket has been purchased or not; 7 and a person who enters the carrier's train, with its consent, before it is ready to start, is an accepted passenger. 8 TERMINATION OF RELATION. 69. The relation of passenger and carrier is terminated by (a) The arrival of the passenger at his destination; (b) The transfer of the passenger to connecting carrier; (c) The ejection of the passenger from the vehicle. SAME ARRIVAL OF PASSENGER AT DESTINATION. 70. The relation of passenger and carrier is ordinarily terminated only by the voluntary departure of the passenger from the vehicle and premises of the car- rier at the end of the journey, provided such de- parture is made -within a reasonable time and in the usual way. 1 B Webster v. Railroad Co., 161 Mass. 298, 37 N. E. 165; Dodge v. Steamship Co., 148 Mass. 207, 19 X. E. 373. e Rogers v. Steamboat Co., 86 Me. 261, 29 Atl. 1069; Allender v. Railroad Co., 37 Iowa, 264; Gordon v. Railroad Co., 40 Barb. 546. But see Gardner *. Northampton Co., 51 Conn. 143; Indiana Cent. Ry. Co. v. Hudelsou, 13 Ind. 325. 7 Warren v. Railroad Co., 8 Allen (Mass.) 227; McDonald v. Railroad Co., 26 Iowa, 124; Allender v. Railroad Co., 37 Iowa, 264; Norfolk & W. R. Co. v. Groseclose's Adm'r, 88 Va. 267, 13 S. E. 454. Per contra, Indiana Cent. Ry. Co. v. Hudelson, 13 Ind. 325. s Hannibal & St. J. R. Co. v. Martin, 111 111. 219; Lent v. Railroad Co., 120 N. Y. 467, 24 X. E. 653. And see Poucher v. Railroad Co., 49 X. Y. 2(53; Gard- ner v. Railroad Co., 94 Ga. 538, 19 S. E. 757. 69-70. i Pittsburg, C. & St. L. Ry. Co. v. Martin (Super. Ct. Gin.) 2 Ohio N. P. 353; St. Louis S. W. Ry. Co. v. Griffith, 12 Tex. Civ. App. 631, 35 S. W. 741. Reasonable time. Chicago, K. & W. R. Co. v. Frazer, 55 Kan. 582, 40 Pac. 923; Smith v. Railway Co., 29 Or. 539, 46 Pac. 136, 780. If he de- 70) ARRIVAL OF PASSENGER AT DESTINATION. The passenger may, however, sever the relation at any intermedi- ate point by abandoning the contract of carriage and surrendering; his rights thereunder. 2 But the intention to abandon the contract must be reasonably certain, and leaving the conveyance for a tem- porary purpose, 3 or to pass from one vehicle to another, 4 or by ren- dering assistance to the carrier or his servants in case of an acci- dent, 6 does not constitute a surrender of his rights as a passenger.. Getting Off at Stations. Ordinarily the passenger does not surrender his rights as such at: the termination of his journey by the mere act of getting off the train. He is still entitled to the care and protection of the carrier until he has had a reasonable opportunity to leave the station and premises. 8 At the terminus of the journey, as in transit, it is the duty of the carrier to use the highest degree of care in the execu- tion of his contract. To this end he must stop the conveyance at the usual point of debarkation, and not at a distance on either side. 77 barks at a place other than the station, and is injured while crossing the- tracks, and without invitation, he is not a passenger. Buckley v. Railroad Co., 161 Mass. 26, 36 N. E. 583. One getting on wrong train, and walking: back to station and falling into cattle guard, cannot recover. Finnegau v. Railway Co., 48 Minn. 378, 51 N. W. 122; Pittsburgh, C. & St. L. Ry. Co. v~ Krouse, 30 Ohio St. 222; Imhoff v. Railway Co., 20 Wis. 344. 2 Buckley v. Railroad Co., 161 Mass. 26, 36 N. E. 583. But see Johnson T-.. Railroad Co., 63 Md. 106. s Parsons v. Railroad Co., 113 N. Y. 355, 21 N. E. 145; Keokuk Northern Line Packet Co. v. True, 88 111. 608; Watson v. Railroad Co., 92 Ala. 320, & South. 770; Dice v. Locks Co., 8 Or. 60; Jeffersonville, M. & I. R. Co. v. Riley, 39 Ind. 568. But see Johnson v. Railroad Co., 125 Mass. 75; Illinois Cent_ R. Co. v. Whittemore, 43 111. 420; McClure v. Railroad Co., 34 Md. 532; Den- ver Tramway Co. v. Reed, 4 Colo. App. 500, 36 Pac. 557. * Xorthrup v. Assurance Co., 43 N. Y. 516; Hulbert v. Railroad Co., 40 X_ Y. 145; Chicago & A. R. Co. v. Winters, 175 111. 293, 51 N. E. 901; Washing- ton & G. R. Co. v. Patterson, 9 App. D. C. 423. o Street Ry. Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333. Allerton v. Railroad Co., 146 Mass. 241, 15 N. E. 621. And compare Platt v. Railroad Co., 4 Thomp. & a 406; Pittsburg, C. & St. L. Ry. Co. v. Mar- tin, 2 Ohio X. P. 353, 3 Ohio Dec. 493; Atlanta Consol. St. Ry. Oo. v. Bates, 103 Ga. 333, 30 S. E. 41. See, also, cases cited in section 70, note 1, ante. 7 Louisville, N. A. & C. Ry. Co. v. Cook, 12 Ind. App. 109, 38 N. E. 1104 - Brulard v. The Alvin, 45 Fed. 766; Miller v. Railway Co., 93 Ga. 630, 21 S. EL 153; Dudley v. Smith, 1 Camp. 16-7; International & G. X. Ry. Co. v. Terry,. 180 COMMON CARRIER OF PASSENGERS. (Ch. 5 To stop the train and announce a station is an invitation to alight at that point, and if such point is remote from the platform, or other- wise unsuitable, the carrier is liable for resultant injury to a prop- erly debarking passenger. 8 While it is no part of the carrier's duty to assist passengers in alighting, 9 the stations should be an- nounced, 10 and a reasonable length of time afforded for debarka- tion. 11 62 Tex. 380; Illinois Cent. R. Co. v. Able, 59 111. 131; Illinois Cent. R. Co. v. Chambers, 71 111. 519; Reed v. Railway Co., 100 Mich. 507, 59 N. W. 144; East Tennessee, V. & G. R. Co. v. Lockhart, 79 Ala. 315; White Water R. Co. v. Butler, 112 Ind. 598, 14 X. E. 599; Alabama G. S. R. Co. v. Sellers, 93 Ala. 9, 9 South. 375; Georgia Railroad & Banking Co. v. McCurdy, 45 Ga. 288; Mobile & O. R. Co. v. McArthur. 43 Miss. 180; New Orleans, J. & G. N. R. Co. v. Hurst, 36 Miss. 660; Southern R. Co. v. Kendrick, 40 Miss. 374; For- dyce v. Dillingham (Tex. Civ. App.) 23 S. W. 550; Texas & P. Ry. Co. v. Man- sell, Id. 549; West Chicago St. R. Co. v. Walsh, 78 111. App. 595. s Columbus & I. C. Ry. Co. v. Fan-ell, 31 Ind. 408; Terre Haute & I. R. Co. v. Buck, 96 Ind. 346; Philadelphia, W. & B. R. Co. v. McCormick, 124 Pa. St. 427, 16 Atl. 848; Philadelphia & R. R. Co. v. Edelstein (Pa. Sup.) 16 Atl. 847; McNulta v. Ensch, 134 111. 46, 24 N. E. 631; Gulf, C. & S. F. Ry. Co. v. Sain (Tex. Civ. App) 24 S. W. 958; International & G. N. R. Co. v. Smith (Tex. Sup.) 14 S. W. 642; Memphis & L. R. Ry. Co. v. Stringfellow, 44 Ark. 322; Richmond & D. R. Co. v. Smith, 92 Ala. 237, 9 South. 223; Hous- ton & T. C. R. Co. v. Dotson (Tex. Civ. App.) 38 S. W. 642. But the mere calling of the name of a station will not, under all circumstances, be con- strued an invitation to alight. Central R. Co. of New Jersey v. Van Horn, 38 N. J. Law, 133; Smith v. Railway Co., 88 Ala. 538, 7 South. 119; England v. Railroad Co., 153 Mass. 490, 27 N. E. 1; Philadelphia, W. & B. R. Co. v. Anderson, 72 Md. 519, 20 Atl. 2; International & G. X. R. Co. v. Eckford, 71 Tex. 274, 8 S. W. 679; Louisville, N. A. & C. Ry. Co. v. Lucas, 119 Ind. 583, 21 X. E. 968; Richmond City Ry. Co. v. Scott, 86 Va. 902, 11 S. E. 404; Griffith v. Railway Co., 98 Mo. 168, 11 S. W. 559; Cockle v. Railway Co., L. R. 5 C. P. 457; Id., L. R. 7 O. P. 321; Lewis v. Railway Co., L. R. 9 Q. B. 66; Weller v. Railway Co., L. R. 9 C. P. 126; Bridges v. Railway Co., L. R. 7 H. L. 213. Xunn v. Railroad Co., 71 Ga, 710; Rabeu v. Railway Co., 73 Iowa, 579, 35 X. W. 645; Id., 74 Iowa, 732, 34 N. W. 621; Sevier v. Railroad Co., 61 Miss. 8; Texas & P. Ry. Co. v. Alexander (Tex. Civ. App.) 30 S. W. 1113. But a sleeping-car company is bound to awaken passengers. Pullman Palace-Car Co. v. Smith, 79 Tex. 468, 14 S. W. 993. loRaben v. Railway Co., 73 Iowa, 579, 35 N. W. 645; Hurt v. Railway Co., 94 Mo. 255, 7 S. W. 1; Southern R. Co. v. Kendrick, 40 Miss. 374; Louis- ville, N. O. & T. R. Co. v. Mask, 64 Miss. 738, 2 South. 360. 11 Keller v. Railroad Co.. 27 Minn. 178, 6 X. W. 486; Raben v. Railway 71) TRANSFER OF PASSENGER TO CONNECTING CARRIER. 181 % SAME TRANSFER OF PASSENGER TO CONNECTING CARRIER. 71. In the absence of special contract, the carrier's liabil- ity is at an end "when he delivers the passenger for further transportation over the connecting line or route of another carrier. The principles underlying the termination of liability by delivery to connecting carriers apply equally to carriers of passengers and carriers of goods, and will be found more fully and conveniently dis- cussed under the latter head. 1 When the obligation of the initial carrier is to transport only to the end of his line, his liability to the passenger ceases when that point is reached. 2 This much is beyond controversy. The diffi- culty lies in determining what constitutes a contract for carriage beyond the terminus of the initial carrier's line, so as to extend his liability beyond that point. That the initial carrier may so obli Co., 73 Iowa, 579, 35 N. W. 645; Hurt v. Railway Co., 94 Mo. 255, 7 S. W. 1; Straus v. Railroad Co., 75 Mo. 185; Mississippi & T. R. Co. v. Gill, 66 Miss. 39, 5 South. 393; Fairmount & A. S. P. Ry. Co. v. Stutler, 54 Pa. St. 375; Pennsylvania R. Co. v. Kilgore, 32 Pa. St. 292; Mulhado v. Railroad Co., 30 .N. Y. 370; Ferry v. Railway Co., 118 X. Y. 497, 23 N. E. 822; Baker v. Railroad Co., 118 X. Y. 533, 23 X. E. 885; Wood v. Railway Co., 49 Mich. 370, 13 X. W. 779; Finn v. Railway Co., 8(5 Mich. 74, 48 N. W. 696; Krai v. Rail- way Co., 71 Minn. 422, 74 X. W. 166; Minor v. Railroad Co., 21 App. Div. 307, 47 X. Y. Supp. 307; Cable v. Railway Co., 122 X. C. 892, 29 S. E. 377; Pierce v. Gray, 63 111. App. 158; Luse v. Railway Co., 57 Kan. 361, 46 Pac. 768; Southern R. Co. v. Mitchell, 98 Tenn. 27, 40 S. W. 72. If one about to alight is injured by the premature starting of the train, he may recover. Washing- ton & G. R. Co. v. Harmon's Adm'r, 147 U. S. 571, 13 Sup. Ct. 557; Hill v. Railway Co., 158 Mass. 458, 33 N. E. 582; Gilbert v. Railway Co.. 160 Mass. 403, 36 N. E. 60; Onderdonk v. Railway Co., 74 Hun, 42, 26 X. Y. Supp. 310; Bernstein v. Railroad Co., 72 Hun, 46, 25 X. Y. Supp. 669; Chicago & A. R. Co. v. Arnol, 144 111. 261, 33 X. E. 204; Illinois Cent. R. Co. v. Taylor, 46 111. App. 141. 71. i See post, pp. 290-296. 2 Hartan v. Railroad Co., 114 Mass. 44; Pennsylvania R. Co. v. Connell, 112 111. 295; Kerrigan v. Railroad Co., 81 Cal. 248, 22 Pac. 677; Atchison, T. & S. F. R. Co. v. Roach, 35 Kan. 740, 12 Pac. 93. 182 COMMON CARRIER OF PASSENGERS. (Cll. 5 gate himself is unquestioned, 3 and it is equally well settled that he may contract against any liability beyond the terminus of his own line.* In the absence of an unequivocal, express contract, the weight of authority seems to be to the effect that a through ticket is merely evidence to be considered and weighed in connection with other cir- .-cumstances, 5 although in some of the earlier cases, which have not been expressly overruled, it was held, following the rule in Mus- champ v. Lancaster & P. J. Ry. Co., 6 that the first carrier issuing a .through ticket is prima facie liable for the entire distance. 7 No matter what the contract of the first carrier may be, as to the point of termination of his liabilitj 7 , the right of the passenger to ue the particular carrier on whose line the injury is suffered is un- . affected thereby. 8 Quimby v. Vanderbilt, 17 N. Y. 306; Van Buskirk v. Roberts, 31 N. Y. 661; Bussman v. Transit Co., 9 Misc. Rep. 410, 29 N. Y. Supp. 1066; Gary v. Kailroad Co., 29 Barb. 35; Candee v. Railroad Co., 21 Wis. 589; Cherry v. Railroad Co., 1 Mo. App. Rep'r, 253; Nashville & C. R. Co. v. Sprayberry, 9 :Heisk, (Tenn.) 852; Watkins v. Railroad Co., 21 D. C. 1. That such a con- tract is not ultra vires, see Buffett v. Railroad Co., 40 N. Y. 168; Bissell v. Hailroad Co., 22 N. Y. 258; Chicago & A. R. Co. v. Dumser, 161 111. 190, 43 N. .E. 698. * Berg v. Railroad Co., 30 Kan. 561, 2 Pac. 639; Moore v. Railway Co. (Tex. Civ. App.) 45 S. W. 609. sHartan v. Railroad Co., 114 Mass. 44; Pennsylvania R. Co. v. Connell, 112 111. 295; Young v. Railroad Co., 115 Pa. St. 112, 7 Atl. 741; Nashville & C. R. Oo. v. Sprayberry, 9 Heisk. (Tenn.) 852; Knight v. Railroad Co., 56 Me. 234; Hood v. Railroad Co., 22 Conn. 1. And see Brooke v. Railroad Co., 15 Mich. 332; Kessler v. Railroad Co., 61 N. Y. 538. e 8 Mees. & W. 421. 7 Illinois Cent. R. Co. v. Copeland, 24 111. 332; Najac v. Railroad Co., 7 -Allen (Mass.) 329; Wilson v. Railroad Co., 21 Grat. (Va.) 654; Candee v. IRailroad Co., 21 Wis. 589; Carter v. Peck, 4 Sneed (Tenn.) 203; Barkinan v. Itailroad Co., 89 Fed. 453; Omaha & R. V. Railway Co. v. Crow, 54 Neb. "747, 74 N. W. 1066. The English cases support this rule. Great Western Ry. vCo. v. Blake, 7 Hurl. & N. 987; Mytton v. Railway Co., 4 Hurl. & N. 614. sSchopruan v. Railroad Corp., 9 Gush. (Mass.) 24; Chicago & R. I. R. Co. r. Fahey, 52 111. 81; Johnson v. Railroad Co., 70 Pa. St. 357. But see Furst- venheim v. Railroad Co., 9 Heisk. (Tenn.) 238. 72) EJECTION OF PASSENGER. 183 SAME EJECTION OF PASSENGER, 72. The carrier may, in certain circumstances, eject the passenger from the vehicle, and thus terminate the relation, provided (a) That the ejection is made at a suitable place, and (b) That it is made with due regard for the passenger's safety, and that no more force is used to accom- plish the purpose than is necessary. Whenever the passenger becomes guilty of disorderly conduct, or it seems inevitable or probable that he will be guilty of rudeness or indecency, the carrier is justified in ejecting him from the vehicle. 1 And if the passenger is intoxicated, and uses boisterous, profane, or otherwise indecent language, it is not only the right, but the duty, of the carrier, towards other passengers, to eject him. 2 But mere drunkenness, if unaccompanied by specific acts of offensive conduct, does not ordinarily warrant expulsion. 3 If the passenger refuses to pay his fare, 4 or to otherwise comply with proper and reasonable reg- 72. i Vinton v. Railroad Co., 11 Allen (Mass.) 304; Sullivan v. Railroad Co., 148 Mass. 119, 18 N. E. GTS: Baltimore, P. & C. R. Co. v. McDonald, 68 Ind. 316; Peavy v. Railroad C^., 81 Ga. 485, 8 S. E. 70; Chicago City Ry. Co. v. Pelletier, 134 111. 120, 24 X. E. 770. 2 Yinton v. Railroad Co., 11 Allen (Mass.) 304. And see, generally, as to drunken passengers, Missouri Pac. Ry. Co. v. Evans, 71 Tex. 361, 9 S. W. 325; Cincinnati, I., St. L. & C. R. Co. v. Cooper, 120 Ind. 469, 22 N. E. 340; Strand v. Railway Co., 67 Mich. 380, 34 N. W. 712; Murphy v. Railway Co.. 118 Mass. 228; Chicago & A. R: Co. v. Randolph, 65 111. App. 208; Edgerly v. Railroad Co. (X. H.) 36 Atl. 55S; Robinson v. Rockland, T. & C. St. Ry. Co., 87 Me. 387. 32 Atl. 994. s Putnam v. Railroad Co., 55 N. Y. 108; Prendergast v. Compton, 8 Car. & P. 454, 4 Ohio & M. R. Co. v. Muhling, 30 111. 9; Pittsburgh, C. & St. L. Ry. Co. v. Dewin, 86 111. 296; Great Western Ry. Co. v. Miller, 19 Mich. 305; Gibson v. Railroad Co., 30 Fed. 904; O'Brien v. Railroad Co., 15 Gray (Mass.) 20; State v. Campbell, 32 X. J. Law, 309; Wyman v. Railroad Co., 34 Minn. 210, 25 X. W. 349; Lillis v. Railway Co., 64 Mo. 464; Grogan v. Railway Co., 39 W. Va. 415, 19 S. E. 593. Cf. Ramsden v. Railroad Co., 104 Mass. 117; Tre- zona v. Railway Co., 107 Iowa, 22, 77 X. W. 486; McGhee v. Reynolds (Ala.) 23 South. 68; Illinois Cent. R. Co. v. Marlett (Miss.) 23 South. 583; Krueger v. Railway Co., 68 Minn. 445, 71 X. W. 683. 1S4 COMMON CARRIER OF PASSENGERS. (Cll. 5 illations, he forfeits his right to be carried; 5 or if he insists on using the vehicles of the carrier for the purpose of vending his wares. But because a carrier has the right to reject an applicant for pas- sage, as being of bad character or otherwise objectionable, it does not follow that, having accepted him, he retains an option to eject him at any time for a like reason. 7 Tender after Refusal. A tender of fare or an offer of compliance with regulations may nevertheless be effectually made by the recalcitrant passenger at any time before the carrier has actually begun to eject him, and the car- rier is then bound to accept such proffer, and to permit him to con- tinue his journey. 8 When, however, the carrier has already taken decisive steps towards his removal, as stopping the train, such a ten- der need not be accepted, and the ejection may be carried out. 9 In such cases, if the passenger has already paid the whole or a part of his fare, the amount paid must be refunded, before the right of ejec- tion is complete. 10 5 Illinois Cent. R. Co. v. Whittemore, 43 111. 420; McClure v. Railroad Co., 34 Md. 532; Denver Tramway Co. v. Reed, 4 Colo. App. 500, 36 Pac. 557; Noble v. Railroad Co., 4 Okl. 534, 46 Pac. 483; Decker v. Railroad Co., 3 Okl. 553, 41 Pac. CIO; McMillan y. Railway Co., 172 Pa. St. 523, 33 Atl. 500. e The D. R. Martin, 11 Blatchf. 233, Fed. Cas. No. 1,030; Com. v. Power, 7 Mete. (Mass.) 590; Barney v. Steamboat Co., 67 N. Y. 301. 7 Pearson T. Duane, 4 Wall. 605. s Hutch. Carr. (2d Ed.) 591a; Ham v. Canal Co., 142 Pa. St. 617, 21 Atl. 1012; O'Brien v. Railroad Co., 80 N. Y. 236; Louisville & N. R. Co. v. Garrett, 8 Lea (Tenn.) 438; Texas & P. Ry. Co. v. Bond, 62 Tex. 442; South Caro- lina R. Co. v. Nix, 68 Ga. 572; Baltimore & O. R. Co. v. Norris, 17 Ind. App. 189. 49 N. E. 554. o Hibbard v. Railroad Co., 15 N. Y. 455; O'Brien v. Railroad Co., 80 N. Y. 236; Pease v. Railroad Co., 101 N. Y. 367, 5 N. E. 37; Hoffbauer v. Railroad Co., 52 Iowa, 342, 3 N. W. 121; State v. Campbell, 32 N. J. Law, 309; Cin- cinnati, S. & C. R. Co. v. Skillman, 39 Ohio St. 444; Pic-kens v. Railroad Co., 104 N. C. 312, 10 S. E. 556; Clark v. Railroad Co., 91 N. C. 506; Atchison, T. & S. F. R. Co. v. Dwelle, 44 Kan. 394, 24 Pac. 500; Louisville, N. & G. S. R. Co. v. Harris, 9 Lea (Tenn.) 180; Galveston, H. & S. A. Ry. Co. v. Turner (Tex. Civ. App.) 23 S. W. 83; Harrison v. Fink. 42 Fed. 787; Guy v. Railway Co., 6 Ohio N. P. 3; Illinois Cent. R. Co. v. Bauer, 66 111. App. 121. 10 Bland v. Railroad Co., 55 Cal. 570; Iseman v. Railroad Co., 52 S. C. 566, 30 S. E. 488; Lake Shore & M. S. R. Co. v. Orndorff, 55 Ohio St. 589, 45 N. E. 447. But see Hoffbauer v. Railroad Co., 52 Iowa, 342, 3 N. W. 121, contra, 72) EJECTION OF PASSENGER. 185 The Ejection must ~be Made at a Suitable Place. In those states where there is no statute requiring railroads, in cases of ejection, to put off the offending passenger at a station or near a dwelling house, the train may be stopped and the passenger required to get off at any point 11 Exercise of Reasonable Care. In exercising the right of ejection, reasonable care must be taken that the person is not needlessly or wantonly exposed to ijajury or suffering. He must not be ejected in a dangerous place, 12 nor from a train in rapid motion. 13 No more force must be used than is es- sential for the purpose, and the carrier will be liable for any unnec- essary or excessive force or willful injury. 14 Kesistance by the pas- senger may, however, be overcome by a necessary amount of force. 15 where the amount paid was no more than the carrier was entitled to for the distance the passenger was carried before being ejected. And compare Burnham v. Railroad Co., 63 Me. 29S; Cheney v. Railroad Co., 11 Mete. (Mass.) 121. 11 Illinois Cent. R. Co. v. Whittemore, 43 111. 420; O'Brien v. Railroad Co., 15 Gray (Mass.) 20; Brown v. Railroad Co., 51 Iowa, 235, 1 N. W. 487; Wy- rnan v. Railroad Co., 34 Minn. 210, 25 N. W. 349; Lillis v. Railway Co., 64 Mo. 464; Great Western Ry. Co. v. Miller, 19 Mich. 305; McClure v. Railroad Co., 34 Md. 532; Young v. Railway Co. (La.) 25 South. 69; Guy v. Railway Co., 6 Ohio X. T. 3; McCook v. Xorthup (Ark.) 45 S. W. 547; Burch v. Railroad Co., 3 App. D. C. 346; Boehm v. Railway Co., 91 Wis. 592, 65 N. W. 506. 12 Gulf, C. & S. F. Ry. Co. v. Kirkbride, 79 Tex. 457, 15 S. W. 495; Louis- ville & N. R. Co. v. Ellis' Aclm'r, 97 Ivy. 330, 30 S. W. 979; Johnson v. Rail- road Co., 104 Ala. 241, 16 South. 75; Edison v. Railway Co. (Miss.) 23 South. 369; Louisville & N. R. Co. v. Johnson, 108 Ala. 62, 19 South. 51. Ejection of one under physical disability. Young v. Railway Co. (La.) 25 Sotith. 69. is Sanford v. Railroad Co., 23 N. Y. 343; State v. Kinney, 34 Minn. 311, 25 N. W. 705; Brown v. Railroad Co., 66 Mo. 588; Gulf, C. & S. F. Ry. Co. v. Kirkbride, 79 Tex. 457, 15 S. W. 495; Fell v. Railroad Co., 44 Fed. 248; Bos- worth v. Walker, 27 C. C. A. 402, 83 Fed. 58; Union Pac. Ry. Co. v. Mitchell, 56 Kan. 324, 43 Pac. 244. 14 New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039; Holmes v. Wakefield, 12 Allen (Mass.) 580; Pennsylvania R. Co. v. Vandiver, 42 Pa. St. 365; Bass v. Railroad Co., 36 Wis. 450; Mykleby v. Railway Co., 39 Minn. 54, 38 N. W. 763; Evansville & I. R. Co. v. Gilmore, 1 Ind. App. 468, 27 N. E. 992; Gulf, C. & S. F. Ry. Co. v. Kuenhle (Tex. App.) 16 S. W. 177; is Townsend v. Railroad Co., 56 N. Y. 295. 186 COMMON CARRIER OF PASSENGERS. (Ch. U Wrongful Ejection. When a passenger is wrongfully expelled from a train, it is not necessary for the protection of his rights that he resist, in order that the carrier may be compelled to use force. It is amply sufficient if, at the demand of the conductor, he leaves the car under protest. 16 If the attempt to remove the passenger is in itself wrongful, he may use a reasonable amount of force in resisting; but, even where the passenger is right and the conductor wrong, it has been held to be contributory negligence to resist the latter by engaging in an unnecessary trial of strength. 17 Of course, a party may resist when, in the circumstances, resistance is necessary for the protection of his life or to prevent serious injury, as when a train is in rapid mo- tion. 18 . WHO ABE PASSENGERS DEFINITION. 73. Generally speaking, a passenger is one, other than an employe, who, in accordance with the reasona- ble regulations of the carrier, has seasonably pre- sented himself for transportation. Not every one who rides upon the conveyances of a common car rier is entitled to exact the extraordinary degree of care which the Knowles v. Railroad Co., 102 N. C. 59, 9 S. E. 7; Jardine v. Cornell, 50 X. J. Law, 485, 14 Atl. 590; Brown v. Railroad Co., "66 Mo. 588; Philadelphia, W. & B. R. Co. v. Larkin, 47 Md. 155. But see Pittsburgh, C., C. & St. L. Ry. Co. v. Russ, 6 C. C. A. 597, 57 Fed. 822. i Southern Kan. Ry. Co. v. Rice, 38 Kan. 398, 16 Pac. 817. See, also. Pull- man Palace-Car Co. v. Reed, 75 111. 125; Hall v. Railroad Co., 15 Fed. 57; Bradshaw v. Railroad Co., 135 Mass. 407; Townsend v. Railroad Co., 56 N. Y. 301; Pennsylvania R. Co. v. Connell, 112 111. 296; Ray v. Traction Co., 19 App. Div. 530, 4G N. Y. Supp. 521; Consolidated Traction Co. v. Taborn. .",8 N. J. Law, 1, 32 Atl. 685. IT Brown v. Railroad Co., 7 Fed. 51, 65; Hall v. Railroad Co., 15 Fed. 57. is Southern Kan. Ry. Co. v. Rice, 38 Kan. 398, 16 Pac. 817; Hall v. Rail- road Co., 15 Fed. 57; Brown v. Railroad Co., 7 Fed. 51; Sanford v. Railroad Co., 23 N. Y. 343; English v. Canal Co., 66 N. Y. 454; Louisville, N. A. & C. Ry. Co. v. Wolfe, 128 Ind. 347, 27 N. E. 606. In the last two cases the passen- ger had paid his fare, and was ejected for refusal to pay again, and was in each instance permitted to recover for injuries due to his reasonable re- sistance. 73) WHO ARE PASSENGERS DEFINITION. 187 carrier is bound to extend towards a passenger. 1 The common car- rier may properly set apart and designate certain vehicles for the carriage of passengers and others for freight; and a railroad has the undoubted right to reserve particular cars for its exclusive use in the proper conduct of its business, and upon which it is not bound to carry passengers, as pay cars, 2 private cars, and hand cars. 3 And, if the company makes other suitable provision for transport- ing its passengers, it is not compelled to admit them to travel on its freight trains. 4 It follows that the relation of carrier and pas- senger does not exist between a railroad and one who, either sur- reptitiously or by force, obtains an entrance into a freight train. 5 It is, of course, otherwise if the company habitually permits or tacitly consents to the use of its freight trains by passengers, al- though such carriage is prohibited by the regulations of the road. 6 But when there is no coach attached to the train at all fitted or suitable for the carriage of passengers, or calculated to invite en- trance, and the well-known regulations forbid such carriage, the burden of proof falls upon the person claiming damages to show an invitation or permission, either express or implied, to enter such train as a passenger. 7 "The presumption of law is that persons rid- 73. i St. Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461. 2 Southwestern R. Co. v. Singletou, 66 Ga. 252. 3 Hoar v. Railroad Co., 70 Me. 65; Willis v. Railroad Co., 120 N. C. 508, 26 S. E. 784. * Jenkins v. Railway Co., 41 Wis. 112; Gardner v. Northampton Co., 51 Conn. 143. 5 Eaton v. Railroad Co., 57 N. Y. 382; Houston '& T. C. Ry. Co. v. Moore, 49 Tex. 31; Arnold v. Railroad Co., S3 111. 273; Thomas v. Railway Co., 72 Mich. 355, 40 N. W. 463; Murch v. Railroad Corp., 29 N. H. 9; Hobbs v. Rail- way Co., 49 Ark. 357, 5 S. W. 586; Louisville & N. R. Co. v. Hailey, 94 Tenn. 383, 29 S. W. 367; San Antonio & A. P. Ry. Co. v. Lynch, 8 Tex. Civ. App. 513, 28 S. W. 252. Houston & T. C. Ry. Co. v. Moore, 49 Tex. 31; Lucas v. Railway Co., 33 Wis. 41; Dunn v. Railroad Co., 58 Me. 187; Alabama G. S. R. Co. v. Yar- "brough, 83 Ala. 238, 3 South. 447; St. Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461; Burke v. Railway Co., 51 Mo. App. 491; Boehm v. Railway Co., 91 Wis. 592, 65 N. W. 506; Arkansas Midland Ry. Co. v. Grif- fith, 63 Ark. 491, 39 S. W. 550. 7 Houston & T. C. Ry. Co. v. Moore, -19 Tex. 31; St. Louis S. W. Ry. Co. v. White (Tex. Civ. App.) 34 S. W. 1042. 188 COMMON CARRIER OF PASSENGERS. (Ch. 5 ing upon trains of a railroad carrier which are manifestly not de- signed for the transportation of persons are not lawfully there; and, if they are permitted to be there by the consent of the carrier's em- ploye's, the presumption is against the authority of the employe's to bind the carrier by such consent. But such presumption may be overthrown by special circumstances, as, where the railroad com- pany would derive a benefit from the presence of drovers upon its cattle trains, and its employe's in charge of such trains invite or per- mit drovers to accompany their cattle, the presumption against a license to the person thus carried may be overthrown." 8 On the other hand, if a railroad company permits any of its freight trains to be used for carrying passengers, it is equivalent, so far as the public is concerned, to authorizing the conductors of all freight trains to receive passengers; 9 and, if such other conductors are not so authorized or are expressly forbidden to carry passengers, they are in the nature of secret limitations upon the apparent author- ity, and not binding upon third persons without actual notice. 10 Although the ordinary passenger pays his fare in consideration of his carriage, the compensation may be indirect, and his purpose on the train other than that of mere transportation. Express mes- sengers, 11 newsboys, 12 and postal clerks 13 are none the less pas- sWaterbury v. Railroad Co., 17 Fed. 671. Dunn v. Railway Co., 58 Me. 187; St. Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461; Brown v. Railroad Co., 38 Kan. 634, 16 Pac. 942; Wagner v. Railway Co., 97 Mo. 512, 10 S. W. 486; Texas & P. Ry. Co. v. Black, 87 Tex. 160, 27 S. W. 118. 10 Lawson v. Railway Co., 64 Wis. 447, 456, 24 N. W. 618; St. Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 10 Pac. 461; Illinois Cent. R. Co. v. Axley, 47 111. App. 307. 11 Blair v. Railway Co., 66 N. Y. 313; Chamberlain v. Railroad Co., 11 Wis. 238. Cf. Pennsylvania Co. v. Woodworth, 26 Ohio St. 585; Yeomans v. Navi- gation Co., 44 Cal. 71; San Antonio & A. P. Ry. Co. v. Adams, 6 Tex. Civ. App. 102, 24 S. W. 839; Voight v. Railway Co., 79 Fed. 561. 12 Com. v. Vermont & M. R. Co., 108 Mass. 7; Yeomaus v. Navigation Co., 44 Cal. 71. is Pennsylvania R. Co. v. Price, 96 Pa. St. 256; N;olton v. Railroad Corp., 15 N. Y. 444; Seybolt v. Railroad Co., 95 N. Y. 562; Hammond v. Railroad Co., 6 S. C. 130; Houston & T. C. R. Co. v. Hampton, 64 Tex. 427; Arrowsmith v. Railroad Co., 57 Fed. 165; Louisville & N. R. Co. v. Kinguian (Ky.) 35 S. W. 264; Norfolk & W. R. Co. v. Shott, 92 Va. 34, 22 S. E. 811; International 73) WHO ARE PASSENGERS DEFINITION. 189 sengers because they are carried under special contracts, and the lia- bility of the carrier towards them cannot in any case be modified by such special contract, unless they are privy to it; 14 but the ab- solute duty of carrying the mails is imposed by United States stat- ute, and cannot be modified by contract limiting or abrogating lia- bility for injuries to agents engaged in the postal service. 15 Al- though traveling on Sunday may be illegal by statute, the carrier is not thereby relieved of liability. 18 If the carrier receives into its vehicles the passengers of another carrier, 17 or furnishes motive power for their transportation, 18 they become the passengers of the carrier so transporting them; so, also, of the servants of another company. 19 Employes as Passengers. When an employ^ of the carrier is transported daily or frequently to and from his work in the vehicles of his master, without charge, even if his work is entirely unconnected with the operation of the road or system, while so traveling he is not a passenger, and his & G. N. Ry. Co. v. Davis (Tex. Civ. App.) 43 S. W. 540; Collett v. Railway Co., 16 Q. B. 984. 11 Blair v. Railway Co., 66 N. Y. 313; Pennsylvania Co. v. Woodworth, 26 Ohio St. 585; Yeomans v. Navigation Co., 44 Cal. 71; Hammond v. Railroad Co., 6 S. C. 130. 1 5 Arrowsrnith v. Railroad Co., 57 Fed. 165; Mellor v. Railway Co., 105 Mo. 455, 16 S. W. 849; Seybolt v. Railroad Co., 95 N. Y. 562. Cf. Pennsyl- vania R. Co. v. Price, 96 Pa. St. 256. See, also, Louisville & N. R. Co. v. Kingman (Ky.) 35 S. W. 264; Norfolk & W. R. Co. v. Shott, 92 Va. 34, 22 S. E. 811. 16 Carroll v. Railroad Co., 58 N. Y. 126. if Foulkes v. Railway Co., 4 C. P. Div. 267, 5 C. P. Div. 157; White v. Railroad Co., 115 N. C. G31, 20 S. E. 191; Reynolds v. Railway Co., 2 Rose. N. P. Ev. 735; Dalyell v. Tyrer, 28 Law J. Q. B. 52; Martin v. Railway Co., L. R. 3 Exch. 9. And see Skinner v. Railway Co., 5 Exch. 787. is Sehopman v. Railroad Corp., 9 Gush. (Mass.) 24; Galveston, H. & S. A. Ry. Co. v. Parsley, 6 Tex. Civ. App. 150, 25 S. W. 64. 19 Zeigler v. Railroad Co., 52 Conn. 543; Philadelphia, W. & B. R. Co. v. State, 58 Md. 372. Cf. Illinois Cent. R. Co. v. Frelka, 110 111. 498; Pennsyl- vania Co. v. Gallagher, 40 Ohio St. 637; In re Merrill, 54 Vt. 200; Lockhart v. Lichtenthaler, 46 Pa. St. 151, 159; Cumberland Val. R. Co. v. Myers, 55 Pa. St. 288; Brown v. Railway Co., 40 U.C. Q. B. 333; Vose v. Railway Co., 2 Hurl. & N. 728. And see Torpy v. Railway Co., 20 U. C. Q. B. 446; Lacka- waniia & B. R. Co. v. Chenewith, 52 Pa. St. 382. 190 COMMON CARRIER OF PASSENGERS. (Ch. 5 rights are determined by the law of master and servant. 20 But, al- though he pays no fare, if he is traveling on his own business he is a passenger. 21 And, when the carrier either directly or indirectly receives compensation for his carriage, he is a passenger, and not a servant; as if the transportation is considered in fixing his wages, or a deduction is made therefrom on that account. 22 But when transportation is given an employe' at irregular or infrequent inter- vals, as to a surveyor who was hired by the month, and was being carried from his home to the place of his work, it has been held that he can recover as a passenger for injuries suffered through the neg- ligence of the carrier. 23 Gratuitous Passengers. The extraordinary duties which a common carrier owes to its pas- sengers do not depend alone on the consideration paid for the serv- ice. They are imposed by law even when the service is gratuitous. 24 The leading case on this point is that of Philadelphia & K. R. Co. v. Derby. 25 The president of one railroad, riding on the invitation of the president of another over the latter's road, was injured by a col- lision, and was allowed to recover therefor; the court saying that 20 Vick v. Railroad Co., 95 X. Y. 267; Gillshannon v. Railroad Corp., 10 Gush. (Mass.) 228; Seaver v. Railroad Co., 14 Gray (Mass.) 4G6; New York, L. E. & W. R. Co. v. Burns, 51 N. J. Law, 340, 17 Atl. 630; Ryan v. Railroad Co., 23 Pa. St. 384; O'Donnell v. Railroad Co., 59 Pa. St. 239; Russell v. Rail- road Co., 17 N. Y. 134; Wright v. Railroad Co., 122 N. C. 852, 29 S. E. 100. Porter on palace car. Jones v. Railway Co., 125 Mo. 666, 28 S. W. 883. Con- tra, Hughson v. Railroad Co., 9 App. D. C. 98. 21 Ohio & M. R. Co. v. Muhling, 30 111. 9; Doyle v. Railroad Co., 162 Mass. 66, 37 N. E. 770. But see Higgins v. Railroad Co., 36 Mo. 418. 22 O'Donnell v. Railroad Co., 59 Pa. St. 239, in seeming opposition to Vick v. Railroad Co., 95 N. Y. 267; but in the latter case it did not appear that the consideration of transportation was material in making the contract. 23 Ross v. Railroad Co., 5 Hun (N. Y.) 488, affirmed in 74 N. Y. 617. 24 Todd v. Railroad Co., 3 Allen (Mass.) 18; Com. v. Vermont & M. R. Co., 108 Mass. 7; Littlejohn v. Railroad Co., 148 Mass. 478, 20 N. E. 103; Files v. Railroad Co., 149 Mass. 204, 21 N. E. 311; Philadelphia & R. R. Co. v. Der- by, 14 How. 468; The New World v. King, 16 How. 469; Quimby v. Rail- road Co., 150 Mass. 365, 368, 23 N. E. 205; Waterbury v. Railroad Co., 17 Fed. 671; Nolton v. Railroad Corp., 15 *?. Y. 444; Perkins v. Railroad Co., 24 N. Y. 197; Jacobus v. Railway Co., 20 Minn. 125 (Gil. 110). 2514 How. 468. WHO ARK PASSENGERS DEFINITION. 191 the defendant railroad owed plaintiff the duty of safe transporta- tion, independent of any contract. The invitation to ride free must, however, be given by one in authority; otherwise, and especially if it is in known violation of rules, he is not a passenger. 26 But a child riding with her parents without payment of fare can claim the rights of a passenger, provided she is within the age at w 7 hich the- road permits children to ride free. 27 Stockmen in charge of stock to look after them in transit, traveling on drovers' passes, are en- titled to protection and safe carriage, as ordinary passengers. 28 It is held by some courts that the carrier may, by contract, limit his liability for the carriage of gratuitous passengers. 29 Duty to Accept Passengers. Those who hold themselves out to the public as common carriers of persons are bound to accept for transportation all proper persons who apply in the customary manner. 3p This does not mean that 20 Hoar v. Railroad Co., 70 Me. 65; Eaton v. Railroad Co., 57 N. Y. 382; Houston & T. C. Ry. Co. v. Moore, 49 Tex. 31; Waterbury v. Railroad Co., 17 Fed. 671, and note; Ohio & M. Ry. Co. v. Allender, 59 111. App. 620; Wil- cox v. Railway Co., 11 Tex. Civ. App. 487, 33 S. W. 379; Brevig v. Railway Co., 64 Minn. 168, 66 N. W. 401; De Palacios v. Railway Co. (Tex. Civ. App.) 45 S. W. 612; Galaviz v. Railroad Co. (Tex. Civ. App.) 38 S. W. 234. -' Austin v. Railway Co., 8 Best & S. 327, L. R. 2 Q. B. 442. In this case the child was 3 years and 3 months old, and should have paid half fare, yet a recovery was permitted. 28 Indiauapolis & St. L. R. Co. v. Horst, 93 U. S. 291; Florida Ry. & Nav. Co. v. Webster, 25 Fla. 394, 5 South. 714; Olson v. Railroad Co., 45 Minn. 536, 4S X. W. 445; Orcutt v. Railroad Co., 45 Minn. 368, 47 N. W. 1068; Missouri Pac. Ry. Co. v. Ivy, 71 Tex. 409, 9 S. W. 346; New York, Q & St. L. R. Co. v. Blumeuthal, 160 111. 40, 43 X. E. 809; Omaha & R. V. Ry. Co. v. Crow, 47 Neb. 84, 66 N. W. 121; Saunders v. Southern Pac. Co., 13 Utah, 275, 44 Pac. 932; Chicago & A. R. Co. v. Winters, 175 111. 293, 51 N. E. 901; St. Louis S. W. Ry. Co. v. Nelson (Tex. Civ. App.) 44 S. W. 179; Louisville & N. R. Co. v. Bell (Ky.) 38 S. W. 8; Ft. Scott, W. & W. Ry. Co. v. Sparks, 55 Kan. 288, 39 Pac. 1032. 29 See post, p. 212. Rogers v. Steamboat Co., 86 Me. 261, 29 Atl. 1069; Mul- doon v. Railway Co., 10 Wash. 311, 38 Pac. 995. so West Chester & P. R. Co. v. Miles, 55 Pa. St. 209; Sanford v. Railroad Co., 2 Phila. (Pa.) 107; Day v. Owen, 5 Mich. 520; Hollister v. Nowlen, 19 Wend. (N. Y.) 234; Hannibal R. R. v. Swift, 12 Wall. 262; Saltonstall v. Stockton, Taney, 11, Fed. Cas. No. 12,271; Indianapolis, P. & C. Ry. Co. v. Rinard, 46 Ind. 293; Lake Erie & W. R. Co. v. Acres, 108 Ind. 548, 9 N. E, 192 COMMON CARRIER OF PASSENGERS. (Cll. 5 they must carry every person who is not positively dangerous or ob- noxious to other passengers, but merely that carriers cannot consult personal prejudice or exercise nice discrimination in determining whom they will transport. They need not carry persons having con- tagious diseases, 31 nor those who are intoxicated and disorderly. 32 Neither are they obligated to carry criminals, or those going upon the train with the intent of committing an assault on a passenger. The would-be passenger must be free from unlawful intent, and the carrier is not bound to accept persons who intend using the trains for gambling purposes. 33 Likewise, if the presence of a person on a train or his arrival at the proposed destination would probably be productive of violence or disorder, he may be refused passage. 34 Peddlers, Book Agents, Etc. In the absence of specific contract, a passenger has no right to use the vehicles of the carrier for purposes of traffic, and the car- rier may properly refuse to admit to its trains or vehicles those in- tending to come aboard for that purpose, 35 or may eject those who, being on the train or boat, engage in such traffic contrary to the regulations. 36 453; Mershon v. Hobensack, 22 N. J. Law, 372; Baltimore & 0. R. Co. \. Carr, 71 Md. 135, 17 Atl. 1052. si Tburston v. Railroad Co., 4 Dill. 321, Fed. Cas. Xo. 14,019. Rule as to blind men: Zachery v. Railroad Co., 74 Miss. 520, 21 South. 246; Id., 75 Miss. 746, 23 South. 434. 82 Putnam v. Railroad Co., 55 X. Y. 108; Pittsburgh & C. R. Co. v. Pillow, 76 Pa. St. 510; but not slight intoxication, Pittsburgh, O. & St. L. R. Co. v. Vandyne, 57 Ind. 576; Milliman v. Railroad Co., 66 N. Y. 642; Vinton v. Railroad Co., 11 Allen (Mass.) 304; Pittsburgh, Ft. W. & C. Ry. Co. v. Hinds, 53 Pa. St. 512; Flint v. Transportation Co., 34 Conn. 554; Freedon v. Rail- road Co., 24 App. Div. 306, 48 N. Y. Supp. 584. 33 Thurston v. Railroad Co., 4 Dill. 321, Fed. Cas. Xo. 14,019; Galveston, H. & S. A. Ry. Co. v. McMonigal (Tex. Civ. App.) 25 S. W. 341. s* Pearson v. Duane, 4 Wall. 605. But see, as to a prostitute, Brown v. Railroad Co., 7 Fed. 51. sis Jencks v. Coleman, 2 Suinn. 221, Fed. Cas. Xo. 7,258; Com. v. Power, 7 Mete. (Mass.) 596; Xew Jersey Steam Xav. Co. v. Merchants' Bank of Bos- ton, 6 How. 343; The D. R. Martin, 11 Blatchf. 233, Fed. Cas. Xo. 1,030; Bar- ney v. Steamboat Co., 67 N. Y. 301; Smallinan v. Whilter, 87 111. 545. ae The D. R. Martin, 11 Blatchf. 233, Fed. Cas. Xo. 1,030. 74) PREPAYMENT OF FARE. 193 Limited Accommodations. When the accommodations of the carrier are limited, he is not bound to receive passengers after the room is exhausted. 37 But if, having sold a person a ticket, the carrier is unable or fails to fur- nish him with suitable accommodations, he is liable for breach of contract. 38 SAME PREPAYMENT OF FARE. 74. The prepayment of fare may be demanded, as a con- dition precedent to accepting a person as a passen- ger. As it is the business of the carrier to transport for hire, he is bound to carry only those who are able and willing to pay the fare, and prepayment may be demanded, as a condition precedent to ac- cepting a person as a passenger. 1 But, in order that the passenger may be rightfully on the train for transportation, it is not neces- sary that he should have paid his fare before entering, or bought his ticket. 2 It is sufficient if he intends paying his fare when demand- 37 Chicago & X. W. R. Oo. v. Carroll, 5 111. App. 201; Evansville & C. R. Co. v. Duncan, 28 Ind. 441. ss The Pacific, 1 Blatchf. 569, Fed. Cas. No. 10,643; Evansville & C. R. Co. v. Duncan, 28 lad. 441; Alabama & V. Ry. Co. v. Drummond, 73 Miss. 813, 20 South. 7; Hawcroft v. Railway Co., 8 Eng. Law & Eq. 362. A carrier is bound to furnish seats for passengers, and, on his failure to do so, the pas- senger may refuse to surrender his ticket and leave the train, but cannot insist on being carried if he retains his ticket. Hardenbergh v. Railway Co., 39 Minn. 3, 38 X. W. 625; Memphis & C. R. Co. v. Benson, 85 Tenn. 627, 4 S. W. 5; Davis v. Railroad Co., 53 Mo. 317; St. Louis, I. M. & S. Ry. Oo. v. Leigh, 45 Ark. 368; Louisville, X. O. & T. Ry. Co. v. Patterson, 69 Miss. 421, 13 South. 607. 74. iDay v. Owen, 5 Mich. 520; Tarbell v. Railroad Co., 34 Cal. 616; Nashville & C. R. Co. v. Messino, 1 Sneed (Tenn.) 220; McCook v. Xorthup (Ark.) 45 S. W. 547; Ker v. Mountain, 1 Esp. 27. A strict tender of fare is not necessary. Day v. Owen, supra; Pickford v. Railway Co., 8 Mees. & W. 372. 2 Cleveland v. Steamboat Co., 68 N. Y. 306; Carpenter v. Railroad Co., 97 X. Y. 494; Ellsworth v. Railway Co. (Iowa) 63 X. W. 584; Houston & T. C. R. Co. v. Washington (Tex. Civ. App.) 30 S. W. 719; Cross v. Railway Co., 56 Mo. App. 664; Missouri, K. & T. Ry. Co. v. Simmons, 12 Tex. Civ. App. 500, 33 S. W. 1096. BAR.XEG. 13 194 COMMON CARRIER OF PASSENGERS. (Cll. 5 ed, and is guilty of no deceit which prevents such demand being made; 3 and this is true even when the rules of the carrier require that tickets shall be bought before entering the train, by persons intending to take passage. 4 When the carrier is in possession of knowledge which would war- rant him in refusing to accept a person as a passenger, he should make his election, either to receive or refuse him, at the earliest pos- sible moment. If, being in possession of such knowledge, he sells him a ticket, he cannot thereafter refuse him transportation. 5 If a ticket is inadvertently sold to such a person, the contract of car- riage cannot, in any event, be rescinded without a repayment of the fare. 8 SAME CLASSIFICATION OF PASSENGERS. 75. A common carrier is bound to furnish equal accom- modations to similar persons paying the same fare, but the charge may properly be graduated accord- ing to the service, and such regulations may be made and enforced as reasonably tend to the com- fort and convenience of passengers generally. While the carrier is obligated to accept for transportation all suit- able persons who apply in the customary way, he may very properly regulate the character of the accommodations in accordance w y ith a fixed scale of prices. 1 Such an arrangement is in entire accord with well-settled business principles, and adds to the comfort and conven- ience of all classes of travelers. 2 And it is not only reasonable, but eminently desirable, that proper provision be made for the comfort s Columbus, C. & I. C. Ry. Co. v. Powell, 40 Ind. 37. Per contra, see Gard- ner v. Northampton Co., 51 Conn. 143. * Doran v. Ferry Co., 3 Lans. (N. Y.) 105. e Hannibal R. Co. v. Swift, 12 Wall. 262; Pearson v. Dnane, 4 Wall. 605; Tarbell v. Railroad Co., 34 Cal. 616. But see Com. v. Power, 7 Mete. (Mass.) 596; The D. R. Martin, 11 Blatchf. 233, Fed. Gas. No. 4,092. e Thurston v. Railroad Co., 4 Dill. 321, Fed. Cas. No. 14,019. 75. i Wright v. Railway Co., 78 Cal. 300, 20 Pac. 740; St. Louis, A. & T. Ry. Co. v. Hardy, 55 Ark. 134, 17 S. W. 711; Nolan v. Railroad Co., 41 N. Y. Super. Ct. 541; Alabama & V. Ry. Co. v. Drummond, 73 Miss. S13, 20 South. 7. 2 Day v. Owen, 5 Mich. 520; Westchester & P. R. Co. v. Miles, 55 Pa. St. 209. 75) CLASSIFICATION OF PASSENGERS. 195 and protection of women by affording them separate compartments, where they may be free from contact with, and annoyance by, the male passengers. 3 It follows, of course, that, if the carrier maj make such regulations, he has the authority and the right to have them enforced. But all such classification must be reasonable, and dictated not by whim or prejudice, but by sound and judicious pol- icy.* And while the carrier may not unjustly, or from mere caprice, discriminate between passengers on account of color, race, social position, or religious belief, 5 he may provide separate apartments for white and colored passengers, provided they are substantially alike, and comfortable. 6 Trespassers not Passengers. To entitle a person to recover for injuries inflicted during trans- portation by the negligence of the carrier, it is essential that he be rightfully on the train or vehicle, otherwise he is a trespasser to whom the carrier owes no duty except to abstain from willful in- jury. 7 And a person who attempts to defraud the carrier by the use s Peck v. Railroad Co., 70 N. Y. 587; Memphis & C. R. Co. v. Benson, 85 Tenn. 627, 4 S. W. 5; Chicago & X. W. R. Co. v. Williams, 55 111. 185; Bass v. rtailroad Co., 36 Wis. 450. 39 Wis. 630, and 42 Wis. 654; Brown v. Railroad Co., 7 Fed. 51. And see Marquette v. Railroad Co., 3a Iowa, 562, Sufficient accommodations for other passengers must be provided elsewhere. Bass v. Railroad Co., supra. * Coger v. Packet Co., 37 Iowa, 145; Central R. Co. v. Green, 86 Pa. St. 427; >\'estchester & P. R. Co. v. Miles, 55 Pa. St. 209; Chicago & N. W. R. Co. v. Williams, 55 111. 185. But see Goines v. McCandless, 4 Phila. (Pa.) 255. e Coger v. Packet Co., 37 Iowa, 145; Central R. Co. v. Green, 86 Pa. St. 427; Westchester & P. R. Co. v. Miles. 55 Pa. St 209. s Chicago & X. W. R. Co. v. Williams, 55 111. 185; Houck v. Railway Co., 38 Fed. 226; The Sue, 22 Fed. 843; Logwood v. Railroad Co., 23 Fed. 318; Murphy v. Railroad Co., Id. 637; Anderson v/ Railroad Co., 62 Fed. 46. And see Gray v. Railroad Co., 11 Fed. 683; Louisville & X. R. Co. v. Com., 99 Ky. 663, 37 S. W. 79; Ohio Valley Railway's Receiver v. Lander (Ky.) 47 S. W. 344, 48 S. W. 145; Plessy v. Ferguson, 163 U. S. 537, 16 Sup. Ct 1138. But see, also, Railroad Co. v. Brown, 17 Wall. 445. T Gardner v. Xorthampton Co., 51 Conn. 143; Hendryx v. Railroad Co., 45 Kan. 377, 25 Pac. 893; Toledo, W. & W. Ry. Co. v. Brooks, 81 111. 245; Chi- cago & A. R. Co. v. Michie, 83 111. 427; Chicago, B. & Q. R. Co. v. Mehlsack, 131 111. 61, 22 X. E. 812; Bricker v. Railroad Co., 132 Pa. St. 1, 18 Atl. 9S3; Haase v. Xavigation Co., 19 Or. 354, 24 Pac. 238; Condran v. Railway Co., 14 C. C. A. 506, 67 Fed. 522; Union Pac. Ry. Co. v. Xichols, 8 Kan. 505; Wa- 196 COMMON CARRIER OF PASSENGERS. (Ch. 5 of a false ticket, 8 or a similar deceit, 9 is a trespasser; and the fraud- ulent use of a ticket or pass issued to another person deprives the user of the rights of a passenger. 10 Rules and Regulations. It is not only the right, but the duty, of the carrier to make and enforce reasonable rules and regulations to insure the safety, or- derly conduct, and the comfort and convenience of its patrons. 11 To this end the following regulations have been held reasonable. Forbidding passengers on railroad trains to ride upon the platforms, baggage cars, or engines; 12 prohibiting the carriage of passengers on freight trains; 13 to quell disturbances, to preserve order and de- corum, and hence to use sound discretion in ejecting from its vehicles all persons whose conduct is such as to render acts of indecency, bash R. Co. v. Kingsley, 177 111. 558, 52 N. E. 931; Texas & N. O. R. Co. v. Demilley (Tex. Civ. App.) 41 S. W. 147. s Toledo, W. & W. Ry. Co. v. Beggs. 85 111. 80; Lillis v. Railway Co., 64 Mo. 464; Brown v. Railway Co., Id. 536. And see Robertson v. Railroad Co.. 22 Barb. (N. Y.) 91; Gulf, C. & S. F. Ry. Co. v. Campbell, 76 Tex. 174, 13 S. W. 19; McVeety v. Railway Co., 45 Minn. 268, 47 X. W. 809; Toledo, W. 6 W. Ry. Co. v. Brooks, 81 111. 245; Great Northern Ry. Co. v. Harrison, 10 Exch. 376. 9 Union Pac. Ry. Co. v. Nichols, 8 Kan. 505. And see Higgins v. Railroad Co., 36 Mo. 418; Trezona v. Railway Co. (Iowa) 77 N. W. 486; McGhee v. Reynolds (Ala.) 23 South. 68; Illinois Cent. R. Co. v. Marlett, 75 Miss. 956, 23 South. 583. 10 Toledo, W. & W. Ry. Co. v. Beggs, 85 111. 80; Way v. Railway Co., G4. Iowa, 48, 19 N. W. 828. 11 Day v. Owen, 5 Mich. 520; Chicago & N. W. R. Co. v. Williams, 55 111. 1S5; Hoffbauer v. Railroad Co., 52 Iowa, 342, 3 X. W. 121; State v. Chovin, 7 Iowa, 204; Hibbard v. Railroad Co., 15 N. Y. 455; Vedder v. Fellows, 20 N. Y. 126; Pennsylvania R. Co. v. Langdon, 92 Pa. St. 21; Du Laurans v. Railroad Co., 15 Minn. 49 (GiK 29); Gleason v. Transportation Co., 32 Wis. 85; Bass v. Railroad Co., 36 Wis. 450; State v. Overton, 24 N. J. Law, 435; Brown v. Railroad Co., 4 Fed. 37, 7 Fed. 51; Ft. Scott, W. & W. Ry. Co. v. Sparks, 55 Kan. 288, 39 Pac. 1032. Reasonableness of rule requiring station to be kept open during certain hours. Louisville, X. A. & O. Ry. v. Wright, 18 Ind. App. 125, 47 N. E. 491. 12 O'Donnell v. Railroad Co., 59 Pa. St. 239; Houston & T. C. R. Co. v. Onernmons, 55 Tex. 88; McMillan v. Railway Co., 172 Pa. St. 523, 33 Atl. 560; Montgomery v. Railway Co., 24 App. Div. 454, 48 N. Y. Supp. 849. is See ante, p. 1S7; Galaviz v. Railroad Co. (Tex. Civ. App.) 38 S. W. 234; Houb.cn, E. & W. T. Ry. Co. v. Norris (Tex. Civ. App.) 41 S. W. 708. 77) THE TICKET AS EVIDENCE. 197 rudeness, or disturbance, either inevitable or probable. 14 And the duty of anticipating and preventing danger, disorder,- and discom- fort among its passengers is just as important as that of quelling any of these elements after they have actually begun. 15 But the carrier may not make foolish or unreasonable rules, as forbidding passengers to pass from one car to another, or to change their seats. 16 THE CONTRACT. 76. The contract of a public carrier of passengers will be discussed under the following heads: (a) The ticket as evidence. (b) Compensation. (c) Liability to passengers. (d) Limitations of liability. SAME THE TICKET AS EVIDENCE. 77. The prepayment of fare is a proper condition pre- cedent to accepting a person for transportation, and the carrier may further require the purchase and presentation of a ticket before the passenger enters the vehicle. The carrier may properly require the purchase and presentation of tickets before entering the car or other vehicle. 1 The ticket is a receipt for the payment of fare to the point designated thereon, and is merely evidence of the contract of carriage. 2 Its terms may be i* Vinton v. Railroad Co., 11 Allen (Mass.) 304; Sullivan v. Railroad Co., 14S Mass. 119, IS X. E. G78; Baltimore, P. & C. R. Co. v. McDonald, 68 Ind. 316: Peavy v. Railroad Co., SI Ga. 485, 8 S. E. 70; Chicago City Ry. Co. v. Pelletier. 134 111. 120, 24 X. E. 770; Robinson v. Railway Co., 87 Me. 387, 32 Atl. 994. 1 5 Vinton v. Railroad Co., 11 Allen (Mass.) 304. But see Putnam v. Rail- road Co., 55 N. Y. 10S. 1 s state v. Overton, 24 N. J. Law, 435, 441. And see South Florida R. Co. v. Rhodes, 25 Fla. 40, 5 South. 633. Reasonableness a question for court. Gregory v. Railway Co., 100 Iowa, 345, 69 X. W. 532. 76-77. i Cleveland. C. & C. R. Co. v. Bartram. 11 Ohio St. 457. 2 Rawson v. Railroad Co., 48 X. Y. 212; Quimby v. Vanderbilt, 17 N. Y. 198 COMMON CARRIER OF PASSENGERS. (Ch. 5 varied by parol evidence. 3 As between the conductor and passen- ger, however, and the right of the latter to travel, the ticket pro- duced must be conclusive evidence ; and the passenger must produce it when called upon as the evidence of his right to the seat he claims. 4 This ruling is based on experience and necessity, but does not conclude the passenger in his right to recover under the actual contract, if the latter is inconsistent with that expressed in the ticket. 5 Thus, if the passenger has paid his fare to a point beyond that called for by the ticket, and was compelled to pay a second time for the additional distance, the excess could be recovered in a suit- able action. 6 306; .Boice v. Railroad Co., 61 Barb. (N. Y.) 611; Barker v. Coflin, 31 Barb. the personal safety of the passengers should not be left to the sport of chance or the negligence of careless agents. Any negligence inv such cases may well deserve the epithet of 'gross.' " * And in the- leading case of New York Cent. K. Co. v. Lockwood, 5 it was also held that no distinction as to the degrees of negligence could be consid- ered in determining the validity of contracts for the limitation of the carrier's liability; that a failure to exercise the degree of care requisite for the safety of the passenger in the circumstances of the case would constitute negligence, against which the carrier would not be permitted to contract. 6 In those courts where it is permit- ted the carrier to make such absolving contracts with gratuitous passengers, it is essential to their validity that they be clearly and. unequivocally expressed. 7 * Philadelphia & R. R. Co. v. Derby, 14 How. 468, at page 486. See, alsoy. Williams v. Railroad Co. (Utah) 54 Pac. 991. e 17 Wall. 357. See cases collected in Whart. Neg. 589. i Keniiey v. Railroad Co., 125 N. Y. 422, 26 N. E. 626. 214 CARRIERS OF GOODS. (Ch. 6 / CHAPTER VI. CARRIERS OF GOODS. 82. Definition. 83. Liability for Loss or Damage. 84. Act of Cod or Public Enemy. 85. Act of Shipper. 86. Authority of Law. 87. Inherent Nature of Goods. 88-89. Liability for Delay. 90. Special Contract of Delivery. 91. Contracts Limiting Liability. 92. Limitation in Illinois. 93. Limitation in New York. 94. Limitation of Amount of Liability. 95. Limiting Time and Manner of Making Claims. 96. Consideration. 97. Construction of Limiting Contracts. 98. Notices Limiting Liability. 99. Actual Notice of Reasonable Rules. 100. Special Classes of Goods. 101. Live Stock. 102. Baggage. 103. Effects of Occupants of Sleeping Cars. 104-105. Beginning of Liability. 106. Delivery for Immediate Transportation. 107. Acceptance. 108. Termination of Liability. 109. Delivery to Consignee. 110. Delivery to Connecting Carrier. 111. Excuses for Nondelivery. 112. Superior Adverse Claim. 113. Stoppage in Transitu. 114. Excepted Perils. DEFINITION. 82. A common carrier is one who represents to the public that he will carry goods for hire for all persons, at all times. 82) DEFINITION. 215 Essential Characteristics. In essential characteristics the carrier of goods resembles the car- rier of passengers. 1 It should be observed, however, that the car- rier of passengers remains such even in the gratuitous transportation of a passenger, 2 whereas, if no consideration is paid in a particular case for the carriage of goods, the carrier, although regularly en- gaged in the business of carrying goods for hire for the public gener- ally, is not, in that particular case, a common carrier, but a gratui- tous bailee. 3 The employment of the carrier must be public and habitual, other- wise he will be. no more than a special or private carrier, whose rights, duties, and liabilities are materially modified. 4 The test is said to be, "not whether he is carrying on a public employment, or whether he carries to a fixed place, but whether he holds out, either expressly or by a course of conduct, that he will carry for hire, so long as he has room, the goods of all persons indifferently, who send him goods to be carried." The following have been held to be common carriers: Express companies; 6 transportation companies; 7 canal companies; 8 stage 82. i Hale, Bailm. & Carr. p. 304. And see "Carriers of Passengers," Ante, pp. 175, 176. 2 See ante, p. 190. s Hale, Bailrn. & Carr. p. 308; Citizens' Bank v. Nantucket Steamboat Co., 2 Story, 16, Fed. Gas. No. 2,730. * 2 Story, Cont. (5th Ed.) 919. s Nugent v. Smith, 1 C. P. Div. 19, at page 27; Id., 423; Chattock v. Bellamy, 15 Reports, 340. o United States Exp. Co. v. Backman, 28 Ohio St. 144; Buckland v. Express o., 97 Mass. 124; Lowell Wire-Fence Co. v. Sargent, 8 Allen (Mass.) 189; Bank of Kentucky v. Adams Exp. Co., 93 U. S. 174; Sweet v. Barney, 23 N. Y. 335; American Exp. Co. v. Hockett, 30 Ind. 250; Gulliver v. Express Co., 38 111. 503; Verner v. Sweitzer, 32 Pa. St. 208; Christenson v. Express Co., 15 Minn. 270 (Gil. 208); Sherman v. Wells, 28 Barb. (N. Y.) 403; Baldwin v. Express Co., 23 111. 197; Southern Exp. Co. v. Newby, 36 Ga. 635; Hayes v. Wells. Fargo & Co., 23 Cal. 185. - Merchants' Dispatch Transp. Co. v. Bloch, 86 Tenn. 392, 6 S. W. 881. But a mere forwarding agent is not a common carrier. Roberts v. Turner, 12 Johns. (N. Y.) 232. s Miller v. Navigation Co., 10 N. Y. 431; Hyde v. Navigation Co., 5 Term R. 389. 216 CARRIERS OF GOODS. (Ch. 6 coaches and omnibuses, as to baggage carried; 9 hackmen and cab drivers; 10 railroad companies, as to baggage " and freight; 12 barge- men, lightermen, canal-boat men; 13 ferries; 14 rafts or flat boats; 15 steamboats and merchant ships; 16 railroad receivers 1T and trustees. 18 Verner v. Sweitzer, 32 Pa. St. 208; Bonce v. Railway Co., 53 Iowa, 278, 5 N. W. 177; Parmelee v. Lowitz, 74 111. 110; Dibble v. Brown, 12 Ga. 217; Parmelee v. McXulty, 19 111. 550. Cabs, drays, etc., see Story, Bailm. 496; Richards v. Westcott 2 Bosw. (N. Y.) 589; Powers v. Davenport, 7 Blackf. (Ind.) 497; McHenry v. Railroad Co., 4 Har. (Del.) 448. See, also, Sales v. Stage Co., 4 Iowa, 547; Hollister v. Nowlen, 19 Wend. (N. Y.) 234; Powell v. Mills, 30 Miss. 231. 10 Lemon v. Chanslor, 08 Mo. 340; Bonce v. Railway Co., 53 Iowa, 278, 5 N. W. 177. 11 Macrow v. Railway Co., L. R. 6 Q. B. 612; Hannibal R. Co. v. Swift, 12 Wall. 262. 12 Norway Plains Co. v. Boston & M. R. Co., 1 Gray (Mass.) 263; Thomas v. Railroad Corp., 10 Mete. (Mass.) 472; Root v. Railroad Co., 45 N. Y. 524; Fuller v. Railroad Co., 21 Conn. 557, 570; Rogers Locomotive & Machine Works v. Erie R. Co., 20 N. J. Eq. 379; Noyes v. Railroad Co., 27 Vt. 110; Contra Costa Coal Mines R. Co. v. Moss, 23 Cal. 323. is Bowman V. Teall, 23 Wend (N. Y.) 306, 309; Parsons v. Hardy, 14 Wend. (N. Y.) 215; De Mott v. Lara way, Id. 225. Compare Fish v. Clark, 49 X. Y. 122, And see Humphreys v. Reed, 6 Whart. (Pa.) 435; Fuller v. Bradley, 25 Pa. St. 120; Arnold v. Halenbake, 5 Wend. (N. Y.) 33. i*Wyckoff v. Ferry Co., 52 N. Y. 32; Le Barren v. Ferry Co., 11 Allen (Mass.) 312; Lewis v. Smith, 107 Mass. 334; White v. Winnisimmet Co., 7 Cush. (Mass.) 156; Fisher v. Clisbee, 12 111. 344; Pomeroy v. Donaldson, 5 Mo. 36; Whitmore v. Bowman, 4 G. Greene (Iowa) 148; Miller v. Pendlcton, 8 Gray (Mass.) 547; Claypool v. McAllister, 20 111. 504; Sanders v. Young, 1 Head (Tenn.) 219; Wilson v. Hamilton, 4 Ohio St. 723; Harvey v. Rose, 26 Ark. 3; Powell v. Mills, 37 Miss. 691; Griffith v. Cave, 22 Cal 535; Hall v. Renfro, 3 Mete. (Ky.) 52; Babcock v. Herbert, 3 Ala. 392. is Steele v. McTyer's Adm'r, 31 Ala. 667. i2 Kent, Comm. 599; Harrington v. McShane, 2 Watts (Pa.) 443; Clark v. Barn well, 12 How. 272; The Delaware, 14 Wall. 579; Hastings v. Pepper, 11 Pick. (Mass.) 41; Gage v. Tirrell, 9 Allen (Mass.) 299; Elliott v. Rossell, 1O Johns. (N. Y.) 1; Williams v. Branson, 5 N. C. 417; Crosby v. Fitch, 12 Conn. 410; Parker v. Flagg, 26 Me. 181; Swindler v. Hilliard, 2 Rich. Law (S. C.) 286; McGregor v. Kilgore, 6 Ohio, 358; Benctt v. Steamboat Co., 6 C. B. 775; Crouch v. Railway Co., 14 C. B. 255, 284. IT Nichols v. Smith, 115 Mass. 332; Paige v. Smith, 99 Mass. 395; Blumenthal v. Brainerd, 38 Vt. 402. is Rogers v. Wheeler, 2 Lans. (N. Y.) 486; Id., 43 N. Y. 598; Faulkner v. Hart, 44 N. Y. Super. Ct. 471; Sprague v. Smith, 29 Vt 421. Truckmen are So) LIABILITY FOR LOSS OR DAMAGE. 217 But a company operating sleeping cars in connection with railway trains is not a common carrier, nor an innkeeper, as to goods or baggage of the passenger; 19 but such companies are liable for failure to use ordinary care in protecting their passengers from loss by theft. 20 So, also, in the case of steamships, packets, etc. 21 Where a railroad lets cars and furnishes tracks and motive power, it has been held that it is 22 and is not 23 a common carrier. LIABILITY FOR LOSS OR DAMAGE. 83. In the absence of special contract varying the obliga- tion, the common carrier is an insurer of the goods intrusted to him, and is liable for all loss or dam- age, except such as is caused by (a) The act of God or the public enemy. (b) The act of the shipper. (c) Authority of law. (d) Inherent nature of goods. common carriers, Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 6G5; and street car companies, State v. Spokane St. Ry. Co., 19 Wash. 518, 53 Pac. 719. is Pullman Palace-Car Co. v. Smith, 73 111. 360; Pullman Car Co. v. Gard- ner, 3 Penny. (Pa.) 78; Blum v. Car Co., 1 Flip. 500, Fed. Gas. No. 1,574; Woodruff Sleeping & Parlor & Coach Co. v. Diehl, 34 Ind. 474; Pullman Palace-Car Co. v. Lowe, 28 Neb. 239, 44 N. W. 226; Barrott v. Car Co., 51 Fed. 796; Pullman Palace-Car Co. v. Freudenstein, 3 Colo. App. 540, 34 Pac. 578. 20 Lewis v. Car Co., 143 Mass. 267, 9 N. E. 615; Whitney v. Car Co., 143 Mass. 243, 9 N. E. 619; Pullman Palace-Car Co. v. Pollock, 69 Tex. 120, 5 S. W. 814. 21 Clark v. Burns, 118 Mass. 275. Steamboat owners are common carriers, but are not responsible to passengers for loss of personal belongings which are not delivered to the designated officer of the boat for safe-keeping. The Crys- tal Palace v. Yanderpool, 16 B. Mon. (Ky.) 302; Abbott v. Bradstreet, 55 Me. 530. 22 Mallory v. Railroad Co., 39 Barb. (N. Y.) 488; Hannibal R. Co. v. Swift, 12 Wall. 262. 23 East Tennessee & G. R. Co. v. Whittle, 27 Ga. 535; Ohio & M. R. Co. v. Dunbar, 20 111. 624; Kimball v. Railroad Co., 26 Vt. 247. Logging railroad not a common carrier, Wade v. Lumber Co., 20 C. C. A. 515, 74 Fed. 517; nor towboat, Knapp, Stout & Co. v. McCaffrey, 178 111. 107, 52 N. E. 898; Emiliusen V. Railroad Co., 30 App. Div. 203, 51 N. Y. Supp. 600. 218 CARRIERS OF GOODS. (Ch. 6 The warranty of the carrier is that he will safely and securely carry -and deliver, and under the common law this is his obligation unless he has made a special contract with the customer, modifying the lia- bility. 1 Hence proof of nondelivery of the goods at the destination establishes, prima facie, a breach of the warranty. 2 To sustain an action for loss, diminution, 3 or damage, 4 it is sufficient to show the difference in amount or quality at the time of shipping and the time of receipt by the consignee. Custody of Shipper. In order to impose this utmost liability on the carrier, it is essen- tial that the goods should be placed and remain in the exclusive custody of the carrier. If the shipper or his personal representative accompanies them, and retains over them any degree of control or possession, the extraordinary liability of a common carrier does not attach. 5 Having elected not to intrust the care of his goods to the carrier, but to retain them in his own control, there is no basis of liability on which to charge the carrier. And so where one shipped goods by boat, put a guardian on board, who locked the hatches, and went with the goods, to see that they were delivered safely, the pro- 83. i Coggs v. Bernard, 2 Ld. Raym. 909; Fish v. Chapman, 2 Ga, 349; Williams v. Grant, 1 Conn. 487; Merritt v. Earle, 29 N. Y. 115; Parsons v. Hardy, 14 Wend. (N. Y.) 215; Colt v. McMechen, 6 Johns. (N. Y.) 100; Wood v. Crocker, 18 Wis. 345; Welsh v. Railroad Co., 10 Ohio St. 65; Parker v. Flagg, 26 Me. 181; Blumenthal v. Brainerd, 38 Vt. 402; Hooper v. Wells, Fargo & Co., 27 Cal. 11; Adams Exp. Co. v. Darnell, 31 Ind. 20; Gulf, C. & S. F. Ry. Co. v. Levl, 76 Tex. 337, 13 S. W. 191; Daggett v. Shaw, 3 Mo. 264; Forward T. Pittard, 1 Term R. 27. 2 Gilbart v. Dale, 5 Adol. & E. 543; Griffiths v. Lee, 1 Car. & P. 110. s Hawkes v. Smith, Car. & M. 72, Higginbotham v. Railway Co., 10 Wkly. Rep. 358. Proof of injury is sufficient where the freight is live stock. "The shipper must show some 'in- jurious accident,' or some injury to the thing shipped, which could not have been the result of its inherent nature or defects, or which stimulated or acceler- ated the injury arising out of such inherent nature or defects." Hutch. Carr. 768a; Pennsylvania R. Co. v. Rairordon, 119 Pa. St. 577, 13 Atl. 324; Hussey v. The Saragossa, 3 Woods, 380, Fed. Gas. No. 6,949. But see The America, .8 Ben. 491, Fed. Cas. No. 283; Lindsley v. Railway Co., 36 Minn. 539, 33 N. W. 7; Louisville & N. R. Co. v. Wynn, 88 Tenn. 320, 14 S. W. 311; Colum- bus & W. Ry. Co. v. Kennedy, 78 Ga. 646, 3 S. W. 267. 6 Tower v. Railroad Co., 7 Hill (N. Y.) 47. But see Hollister v. Nowlen, 19 Wend. (N. Y.) 234; Yerkes v. Sabin, 97 Ind. 141. 83) LIABILITY FOR LOSS OR DAMAGE. 219 prietor of the boat was held not liable as a common carrier, there "not being any trust in the defendant, and the goods were not to be con- sidered as ever having been in his possession, but in the possession of the company's servant. 6 Burden of proof . It is therefore evident that in an action for the loss or damage of goods, in the absence of special contract, proof of the fact of loss or injury is sufficient to establish a prima facie case of liability. The burden of proof then devolves on the defendant to show that the loss or injury was the result of one of the excepted causes before alluded to, viz. the act of God or the public enemy, the act of the shipper, the exercise of public authority, or the inherent nature of the goods, against which the carrier is not an insurer. 7 Where it is made to ap- pear that one or more of these excepted causes was instrumental in producing the injury complained of, the carrier is, prima facie, not liable. To charge him with the loss, the burden of proof is then shifted to the shipper, to show that he was negligent. 8 On this lat- ter point, however, many courts hold that it is incumbent on the car- rier to show not only that the loss or injury was caused by an except - e East India Co. v. Pullen, 2 Strange, 690. 7 Davis v. Railway Co., 89 Mo. 340, 1 S. W. 327; Wallingford v. Railroad Co., 20 S. C. 258, 2 S. E. 19; Slater v. Railway Co., 29 S. C. 96, 6 S. E. 936; Grieve v. Railway Co., 104 Iowa, 659, 74 N. W. 192; Texas & P. Ry. Co. v. Payne (Tex. Civ. App.) 38 S. W. 366; Georgia Railroad & Banking Co. v. Keener, 93 Ga. 808, 21 S. E. 287; George v. Railway Co., 57 Mo. App. 358; The Majestic, 166 U. S. 375, 17 Sup. Ct. 597. s Witting v. Railway Co., 101 Mo. 631, 14 S. W. 743; Davis v. Railway Co., 89 Mo. 340, 1 S. W. 327; Read v. Railroad Co., 60 Mo. 199 (cf. Hill v. Sturgeon, 28 Mo. 323); Steers v. Steamship Co., 57 N. Y. 1; Lamb v. Transportation Co., 46 X. Y. 271; Cochrau v. Dinsmore, 49 N. Y. 249; Patterson v. Clyde, 67 Pa, St. 500; Colton v. Railroad Co., 67 Pa. St. 211; Faruham v. Railroad Co., 55 Pa. St. 53; Goldey v. Railroad Co., 30 Pa. St. 242 (cf. Pennsylvania R. Co. v. Miller, 87 Pa. St. 395; Hays v. Kennedy, 41 Pa. St. 378; Whitesides v. Rus- sell, 8 Watts & S. [Pa.] 44); Little Rock, M. R. & T. R. Co. v. Corcoran, 40 Ark. 375; Little Rock, M. R. & T. R. Co. v. Harper, 44 Ark. 208; Kan- sas Pac. Ry. Co. v. Reynolds, 8 Kan. 623; Kallman v. Express Co., 3 Kan. 205; Kelham v. The Kensington, 24 La. Ann. 100; Smith v. Railroad Co., 64 N. C. 235; Hubbard v. Express Co., 10 R. I. 244; Louisville & N. R. Co. v. Manchester Mills, 88 Tenn. 653, 14 S. W. 314; Memphis & C. R. Co. v. Reeves, 10 Wall. 176; Western Transp. Co. v. Downer, 11 Wall. 129; Christie v. The Craigton, 41 Fed. 62; Reed v. Steamboat Co., 1 Marv. 193, 40 Atl. 955. 220 CARRIERS OF GOODS. (Ch. 0- ed peril, but that he exercised reasonable care and skill in the cir- cumstances. 9 Whatever may be the weight of authority regarding the burden of proof on this point, it is undisputed that even when the carrier is not an insurer he is bound to exercise ordinary care to carry safely and securely. 10 What is ordinary care in the various excepted perils, will be discussed later. Reason of Rule. "The law charges this person [the common carrier] thus intrusted to carry goods against all events but acts of God and of the enemies of the king. For, though the force be never so great> as if an ir- resistible multitude of people should rob him, nevertheless he is chargeable. And this is a politic establishment, contrived by the policy of the law, for the safety of all persons, the necessity of whose affairs oblige them to trust these sorts of persons, that they may be safe in their ways of dealing; for else these carriers might have an opportunity of undoing all persons that had any dealings with them, or combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. And this is the reason the law is founded upon in that point." 1X "When goods are delivered to a carrier, they are usually no longer under the eye of the owner. He seldom follows or sends any servant with them to the place of their destination. If they should be lost or injured by the grossest negligence of the carrier or his servants, or stolen by them, or by thieves in collusion with them, the owner would be unable to prove either of these causes of loss. His wit- South & N. A. R. Co. v. Henlein, 52 Ala. 606; Steele v. Townsend, 37 Ala. 247; Berry v. Cooper, 28 Ga. 543; Chicago, St. L. & N. O. R. Co. v. Moss, 60 Miss. 1003; Same v. Abels, Id. 1017; Gaines v. Insurance Co., 28 Ohio St. 418; United States Exp. Co. v. Backman, Id. 144; Graham v. Davis, 4 Ohio St. 362; Union Exp. Co. v. Graham, 26 Ohio St. 595; Slater v. Railway Co., 29 S. C. 96, 6 S. E. 936; Swindler y. Milliard, 2 Rich. Law (S. C.) 286; Baker v. Brinson, 9 Rich. Law (S. C.) 201; Missouri Pac. Ry. Co. v. Manufacturing Co., 79 Tex. 26, 14 S. W. 785; Ryan v. Railway Co., 65 Tex. 13; Brown v. Ex- press Co., 15 W. Va. 812; Shriver v. Railroad Co., 24 Minn. 506; Chicago, B. & Q. R. Co. v. Manning, 23 Neb. 552, 37 N. W. 462. 10 Marshall v. Railroad Co., 11 C. B. 655, 665, note; Gill v. Railroad Co. r 42 Law J. Q. B. 89; Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 52 N. E. 665; Hinton v. Railway Co. (Minn.) 75 N. W. 373; Faucher v. Wilson (N. H.) 38 Atl. 1002. 11 Coggs v. Bernard, 2 Ld. Raym. 909, 918. 83) LIABILITY FOR LOSS OR DAMAGE. 221 nesses must be the carrier's servants, and they, knowing they could not be contradicted, would excuse their masters and themselves. To give due security to property, the law has added to that responsi- bility of a carrier which immediately rises out of his contract to carry for a reward namely, that of taking all reasonable care of it the responsibility of an insurer. From his liability as an insurer the carrier is only to be relieved by two things, both so well known to all the country, when they happen, that no person would be so rash as to attempt to prove that they had happened when they had not, namely, the act of God and the king's enemies." 12 Excepted Risks Generally. The exercise of ordinary care in a given set of circumstances is always a duty, and the breach of such a duty, followed by damage, is negligence. In the emergency, therefore, of any of the risks before mentioned, which except the carrier from his extraordinary liability iis insurer, he is not entirely relieved from responsibility, but must still exercise due diligence, and use all available means, to protect the goods from loss or damage. 13 Failure on the part of the carrier to exercise such diligence in the face of the excepted risk is negli- gence; and if this negligence directly caused, or in connection with the excepted risk contributed to cause, the injury complained of, he is liable. 14 Moreover, it is the duty of the carrier to use reasonable care to guard against all risks, including the excepted ones; and if, failing to take reasonable precautions, the goods are damaged by rea- son of the excepted peril, the negligence is regarded as the proximate 12 Riley v. Home, 5 Bing. 217. is Marshall v. Railway Co., 11 C. B. 655, 665, note; Miller v. Railway Co., 1 Mo. App. Rep'r, 474; Gill v. Railroad Co., 42 Law J. Q. B. 89. I* Craig v. Cbildress, Peck (Tenn.) 270; Day v. Ridley, 16 Vt. 48. But the -care need be only reasonable. Nashville & C. R. Co. v. David, 6 Heisk. (Tenu.) 261; Morrison v. Davis, 20 Pa. St. 171; Railroad Co. v. Reeves, 10 Wall. 176; Black v. Railroad Co., 30 Neb. 197, 46 N. W. 428; Gillespie v. Railway Co., 6 Mo. App. 554; Nugent v. Smith, 1 C. P. Div. 423; The Generous, 2 Dod. 322. But see The Niagara v. Cordes, 21 How. 7; King v. Shepherd, 3 Story, 349, Fed. Cas. No. 7,804. See, also, Smith v. Railway Co., 91 Ala. 455, 8 South. 754; Milwaukee & St. P. Ry. Co. v. Kellogg, 94 U. S. 469; Blythe v. Railway Co., 15 Colo. 333, 25 Pae. 702; Baltimore & O. R. Co. v. Sulphur Spring Inde- pendent School Dist, 96 Pa. St. 65; Denny v. Railroad Co., 13 Gray (Mass.) 481. 222 CARRIERS OF GOODS. (Ch. 6 cause of the injury, and the carrier is liable. 15 Therefore the carrier may not ship the goods in an unseaworthy vessel, 16 or attempt to cross a stream with an insufficient team, 17 or when a dangerous wind was blowing/ 8 and defend against resulting loss by claiming that it was caused by the act of God. 19 Ordinarily, as we have seen, the responsibility of the carrier is that of an insurer ; otherwise, in the case of excepted risks, his liability is identical with that of the ordinary bailee for hire, he must exercise the degree of diligence required by law to protect the goods intrusted to him from injury resulting from conditions which, in the exercise of ordinary care, might be ameliorated or averted. 20 In this aspect of his liability as a bailee, the carrier does not become liable for causes which, from their nature, cannot be known or averted. But it is his duty, from an inspection of bills of lading or otherwise, to acquaint himself with the character of the goods, and furnish the care and protection which their nature requires. 21 Live animals must be 15 Wolf v. Express Co., 43 Mo. 421; Pruitt v. Railroad Co., 62 Mo. r.JT; Davis v. Eailway Co., 89 Mo. 340, 1 S. W. 327; Elliott v. Rossell, 10 Johns. (X. Y.) 1; Thomas v. Lancaster Mills, 19 C. C. A. 88, 71 Fed. 481; Richmond & D. R. Co. v. White, 88 Ga. 805, 15 S. E. 802; Lang v. Railroad Co., 154 Pa. St. 342, 26 Atl. 370. IB Bell v. Reed, 4 Bin. (Pa.) 127. IT Campbel v. Morse, 1 Harp. (S. C.) 468. is Cook v. Gourdin, 2 Nott & McC. (S. C.) 19. i Williams v. Grant, 1 Conn. 487; Klauber v. Express Co., 21 Wis. 21; Cook v. Gourdin, 2 Nott & McC. (S. C.) 19; United States Exp. Co. v. Kountze, 8 Wall. 342; Savannah, F. & W. Ry. Co. v. Guano Co. (Ga.) 30 S. E. 555. 20 Bird v. Cromwell, 1 Mo. 81; Chouteaux v. Leech, 18 Pa. St. 224; Chicago & A. R. Co. v. Davis, 159 111. 53, 42 N. E. 382; Notara v. Henderson, L. R. 5 Q. B. 346, L. R. 7 Q. B. 225. Applying water to hogs to prevent overheat- ing. Illinois Cent. R. Co. v. Adams, 42 111. 474; Toledo, W. & W. R. Co. v. Thompson, 71 111. 434; Toledo, W. & W. Ry. Co. v. Hamilton, 76 111. 393. See, also, The Niagara v. Cordes, 21 How. 7; American Exp. Co. v. Smith, 33 Ohio St. 511. But a carrier is not bound to interrupt his voyage to preserve goods. The Lynx v. King, 12 Mo. 272. 21 Butter shipped in warm weather must be protected from heat. Beard v. Railway Co., 79 Iowa, 518, 44 N. W. 800 (citing Hewett v. Railway Co., 63 Iowa, 611, 19 N. W. 790; Sager v. Railroad Co., 31 Me. 228; Hawkins v. Railroad Co., 17 Mich. 57, 18 Mich. 427; Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. 123; Wing v. Railroad Co., 1 Hilt. [N. Y.] 641; Merchants' Dispatch 6 Transportation Co. v. Cornforth, 3 Colo. 280; Boscowitz v. Express Co., 83) LIABILITY FOR LOSS OR DAMAGE. 223- supplied with water, and fruits must be protected from frost. 22 Al- though, by the contract, the carrier is exempted from liability for loss bj* fire, he will nevertheless be responsible for damage to the- goods from sparks, occurring through his negligence in failing to equip his engine with a proper spark arrester. 23 The vehicles must be reasonably suited for the conveyance of particular classes of goods, 24 and the cars or other vehicles, even if they are the property of another carrier, must be reasonably secure and strong. 25 The car- rier must not mingle goods, if their character is known to him, cal- culated to do injury one to another, as flour and turpentine, 26 cloths and acids. 27 He must use reasonable diligence in checking waste or damage during transit, of which he either knew, or, in the exer- cise of ordinary care, should have known, as leakage of a cask, 28 or the deterioration of perishable goods through lack of ventilation. 29 93 111. 523; Steinweg v. Railway Co., 43 N. Y. 123); Alabama & V. R. Co. v. Searles, 71 Miss. 744, 16 South. 255; Helliwell v. Railway Co., 7 Fed. 68; Peck v. Weeks, 34 Conn. 145; Sherman v. Steamship Co., 26 Hun, 107. 22 Merchants' Dispatch & Transportation Co. v. Cornforth, 3 Colo. 280. Per contra, where the shipper selects the vehicle, Carr v. Schafer, 15 Colo. 48, 24 Pac. 873; Tucker v. Railroad Co., 11 Misc. Rep. 366, 32 N. Y. Supp. 1. 23 Steinweg v. Railway Co., 43 N. Y. 123; Maxwell v. Railroad Co., 48 La. Ann. 385, 19 South. 287. 24 Shaw v. Railway Co., 18 Law J. Q. B. 181, 13 Q. B. 347; Root v. Rail- road Co., S3 Hun, 111, 31 N. Y. Supp. 357. If a package is too large to be car- ried in a closed car, it is not negligence to carry it on an open one, provided reasonable care is used to protect it from the weather. Burwell v. Railroad Co., 94 N. C. 451. 25 Combe v. Railroad Co., 31 Law T. (X. S.) 613; Amies v. Stevens, 1 Strange, 128; Blower v. Railway Co., L. R. 7 C. P. 655. 26 The Colonel Ledyard, 1 Spr. 530, Fed. Cas. No. 3.027. 27 Alston v. Herring, 11 Exch. 822. But, if the goods are of a nature likely to be injured by contact with others, it is the duty of the shipper to notify the carrier, and, if he fails to do so, the latter will not be liable. Hutchinson v. Guion, 28 Law J. C. P. 63, 5 C. B. (N. S.) 149. 23 Beck v. Evans, 16 East, 244. And see, also, Cox v. Railway Co.; 3 Fost. & F. 77; Hunnewell v. Taber, 2 Spr. 1, Fed. Cas. No. 6,880; Cincinnati, N. O. & T. P. Ry. Co. v. N. K. Fairbanks & Co., 33 C. C. A. 611, 90 Fed. 467; Davis v. Railroad Co., 66 Vt. 290, 29 Atl. 313. 29 Davidson v. Gwynne, 12 East, 381. See, also, Bird v. Cromwell, 1 Mo. 81; Chouteaux v. Leech, 18 Pa. St. 224; Densmore Commission Co. v. Duluth. S. S. & A. Ry. Co., 101 Wis. 563, 77 N. W. 904; Chicago & A. R. Co. v. Davis : 159 111. 53, 42 N. E. 382. 224 CARRIERS OF GOODS. (Cll. 6 Deviation and Delay. Neither can the carrier plead exemption from liability by reason of the act of God or other excepted peril, if he has, without sufficient reason, deviated from the usual or agreed route of travel; in such circumstances his liability is absolute, regardless of the cause of loss. 30 "This absolute liability rests on the proposition that the wrongful deviation amounts to a conversion, and the carrier is there- after liable as owner until the original owner voluntarily accepts a return of the goods." 31 A master deviating in his voyage from the customary course was held liable for loss caused by tempest. 32 Where the carrier agreed to carry by land, but sent the goods by water, he was held liable for their destruction by the act of God. 33 If the owner of a designated line of boats declines to receive the goods, the carrier should advise the shipper and await instructions; 3 * but if he forwards by another line, without such instructions or on his own authority, he is lia- ble. 35 Nothing short of actual necessity is a sufficient reason for a deviation from the customary course, 36 and the burden is upon the carrier to prove the necessity. 37 It is held by some writers that a negligent and unreasonable delay should impose on the carrier a liability as absolute as that raised by a deviation from the ordinary route, if the loss can be traced with 30 Crosby v. Fitch, 12 Conn. 410; Powers v. Davenport, 7 Blackf. (Ind.) 497; Merchants' Despatch Transp. Co. v. Kahn, 76 111. 520; Louisville & N. R. Co. v. Gidley (Ala.) 24 South. 753; International & G. N. R. Co. v. Went- worth, 8 Tex. Civ. App. 5, 27 S. W. 680; Smith v. Railway Co., 91 Ala. 455, 8 South. 754; Davis v. Garrett, 6 Bing. 716. 31 Hale, Bailm. & Carr. p. 360. 32 Davis v. Garrett, 6 Bing. 716; Powers v. Davenport, 7 Blackf. (Ind.) 497; Phillips v. Brigham, 26 Ga. 617; Lawrence v. McGregor, Wright N. P. (Ohio) 193. 33 Johnson v. Railroad Co., 33 N. Y. 610; Cox v. Foscue, 37 Ala. 505. The carrier must follow instructions as to mode of conveyance, Wilcox v. Parmelee, 3 Sandf. (N. Y.) 610; and as to selection of carriers beyond his own route, Johnson v. Railroad Co., 33 N. Y. 610. 3* Goodrich v. Thompson, 44 N. Y. 324. And see Fisk v. Newton, 1 Denio, 45. 35 Johnson v. Railroad Co., 33 N. Y. 610. 36 Hand v. Baynes, 4 Whart. (Pa.) 204; Johnson v. Railroad Co., 33 N. Y. 610. ST Le Sage v. Railway Co., 1 Daly (N. Y.) 306. 84) ACT OF GOD OR PUBLIC ENEMY. 225 any degree of certainty to the fault of unreasonable delay, 38 and this is substantially the ruling of the courts of New York. 39 The more rational principle, supported by the greater weight of authority, would seem to be that the carrier should not be held liable for the loss unless it occurred as a natural and foreseeable consequence of the delay. 40 SAME ACT OF GOD OR PUBLIC ENEMY. 84. When the loss or damage is caused by what, in legal phraseology, is known as the "act of God or the public enemy," the liability of the carrier as insurer does not attach. When the loss or damage is caused by the act of God, the duty of the carrier is performed by the exercise of the degree of care re- quired of the ordinary bailee for hire. 1 The only difficulty to be met with in the consideration of this principle,, either among the text writers or the decisions, is its application. Some writers hold that the occurrence falls within the definition provided the carrier is with- out fault and no human agency is connected with the occurrence; 2 while others insist that the action of nature must be essentially vio- ss Browne, Can. 98; Hutch. Carr. 199, 200. 39 Read v. Spaulding, 30 N. Y. 630; Michaels v. Railroad Co., Id. 564; Condict v. Railway Co., 54 X. Y. 500; Dunson v. Railroad Co., 3 Lans. (N. Y.) 265. See, also, Hewett v. Railway Co., 63 Iowa. Oil, 19 N. W. 790; Read v. Railroad Co., 60 Mo. 199; McGraw v. Railroad Co., 18 W. Va. 361; Pruitt v. Railroad Co., 62 Mo. 527; Michigan Cent. R. Co. v. Curtis, 80 HI. 324; South- ern Exp. Co. v. Womack, 1 Heisk. (Tenn.) 256. 40 Memphis & C. R. Co. v. Reeves, 10 Wall. 176; Morrison v. Davis, 20 Pa. St. 171; Denny v. Railroad Co., 13 Gray (Mass.) 481; Hoadley v. Transporta- tion Co., 115 Mass. 304; and see Jones v. Gilmore, 91 Pa. St. 310, 314; St. Louis, I. M. & S. Ry. Co. v. Bland (Tex. Civ. App.) 34 S. W. 675; Palmer v. Railroad Co., 101 Cal. 187, 35 Pac. 630; Missouri Pac. Ry. Co. v. Levi (Tex. App.) 14 S. W. 1062; Gulf, C. & S. F. Ry. Co. v. Gatewood, 79 Tex. 89, 14 S. W. 913; Black v. Railroad Co., 30 Neb. 197, 46 N. W. 428; Blythe v. Railway Co., 15 Colo. 333, 25 Pac. 702. 84. i Ante, p. 222. 2 Hutch. Carr. 175; Story, Bailrn. 489, 490. 511; 2 Kent, Comm. 597. See criticism of Colt v. McMechen, 6 Johns. 160, in American notes to Coggs v. Bernard, 1 Smith, Lead. Cas. 317. BAR.NEG. 15 226 CARRIERS OF GOODS. (Ch. 6 lent 3 But the question of violence would seem to be entirely im- material, except that it might have importance in determining the care or negligence of the carrier in the circumstances. 4 Moderate disturbances of the elements are of common occurrence, and their possible happening should be taken into consideration by the car- rier in providing for the safety of the goods. Losses happening in such circumstances would naturally be attributed to the failure of the carrier to guard against them, rather than to the elemental na- ture of the occurrence. 5 Again, the true test is said to be the en- tire absence of any human agency in producing the loss. 6 But this is far from satisfactory; for, as has just been intimated, the violence and nature of the disturbance must be considered in determining whether the carrier should not, in the exercise of due diligence, have anticipated and provided against a disturbance of like severity and frequency; and, if due diligence and foresight could have anticipat- ed and prevented the loss, it follows that human agency was the legal producing cause. The only rational solution of the matter would seem to lie in a consideration of the circumstances surrounding each case, due regard being had for prevailing, known conditions and gen- eral experience in similar matters. In the circumstances of the various cases, the following causes have been held to be the act of God : Lightning; 7 tempest; 8 earth- quake; 9 extraordinary flood; 10 a sudden gust 11 or a severe gale 3 Lawson, Bailm. 120; Hutch. Carr. 176. * Schouler, Bailm. p. 391. 5 Ante, p. 221. Hale, Bailm. & Carr. p. 357; Merritt v. Earle, 29 N. Y. 115; McArthur v. Sears, 21 Wend. (N. Y.) 190; Ewart v. Street, 2 Bailey (S. C.) 157; Backhouse r. Sneed, 5 N. C. 173; Trent Nav. Co. v. Ward, 3 Esp. 127. 7 Forward v. Pittard, 1 Term R. 27, 33. s Gillett v. Ellis, 11 111. 579. Slater v. Railway Co., 29 S. C. 96, 6 S. E. 936. 10 Levering v. Coal Co., 54 Pa. St. 291; Nashville & C. R. Co. v. David, 6 Heisk. (Tenn.) 261; Davis v. Railway Co., 89 Mo. 340, 1 S. W. 327; Norris v. Railway Co., 23 Fla. 182, 1 South. 475; Smith v. Railway Co., 91 Ala. 455, 8 South. 754; Wald v. Railroad Co., 1(52 111. 545, 44 N. E. 888; International & G. N. R. Co. v. Wentworth (Tex. Civ. App.) 27 S. W. 680. A flood such as has 11 Germania Ins. Co. v. The Lady Pike, 8 Am. Law Reg. (N. S.) 614, Fed. Cas. No. 7,985. 84) ACT OF GOD OR PUBLIC ENEMY. 22T of wind; 12 the sudden cessation of win:!: 13 snowstorms; 14 the- breaking of a dam; 15 freezing of navigable waters; 16 the freezing of fruit trees in transit; 1T a hidden, unknown rock; 18 a snag lodged by a freshet in a river. 19 If the carrier is negligent in failing to avoid the peril, the loss cannot be ascribed to the act of God. 20 On. the other hand, and in some instances inconsistently with the fore- going cases, losses caused by fire not originating from lightning, 21 ' the explosion of a boiler, 22 collision, 23 heat, 24 hidden obstructions to navigation, 25 and the shifting of a buoy, 26 have been held not to be caused by the act of God. occurred but twice in a generation is an act of God. Pearce v. The Thomas- Newton, 41 Fed. 106. 12 Blythe v. Railway Co., 15 Colo. 333, 25 Pac. 702. And see Miltimore Y. Railway Co., 37 Wis. 190; Gulf, C. & S. F. Ry. Co. v. Compton (Tex. Civ. App.>^ 38 S. W. 220. is Colt v. McMechen, 6 Johns. 160. 14 Black v. Railroad Co., 30 Neb. 197, 46 N. W. 428; Feinberg v. Railroad;' Co., 52 N. J. Law, 451, 20 Atl. 33; Chapin v. Railway Co., 79 Iowa, 582, 4* N. W. 820; Palmer v. Railroad Co., 101 Cal. 187, 35 Pac. 630. is Long v. Railroad Co., 147 Pa. St. 343, 23 Atl. 459 (the Johnstown flood: of 1889). IB Bowman v. Teall, 23 Wend. (N. Y.) 306; Parsons v. Hardy, 14 Wend. (N. Y.) 215; Worth v. Edmonds, 52 Barb. (N. Y.) 40; West v. The Berlin, - Iowa, 532. IT Vail v. Railroad Co., 63 Mo. 230. is Williams v. Grant, 1 Conn. 487; otherwise, if laid down in a chart, Penne- will v. Cullen, 5 Har. (Del.) 238. is Sinyrl v. Niolon, 2 Bailey (S. C.) 421. 20 Norris v. Railway Co., 23 Fla. 182, 1 South. 475; Missouri, K. & T. Ry. Co. v. Olive (Tex. Civ. App.) 23 S. W. 526. 21 Forward v. Pittard, 1 Term R. 27, 33; Condict v. Railway Co., 54 N. Y~ 500; Miller v. Navigation Co., 10 N. Y. 431; Parsons v. Monteath, 13 Barb^ (N. Y.) 353; Patton's Adm'rs v. Magrath, Dud. (S. C.) 159; Gilmore v. Carman,. 1 Smedes & M. (Miss.) 279; Moore v. Railroad Co., 3 Mich. 23; Cox v. Peter- son, 30 Ala, 608; Hyde v. Navigation Co., 5 Term R. 389. Per contra, Chicago & N. W. R. Co. v. Sawyer, 69 111. 285, the great fire, held not to be act of God_ 22 The Mohawk, 8 Wall. 153; Bulkley v. Cotton Co., 24 How. 386. 23 Mershon v. Hobensack, 21' N. J. Law. 372; Plaisted v. Navigation Co., 2T Me. 132. 24 Beard v. Railway Co., 79 Iowa. 518, 44 N. W. 800. 25 New Brunswick Steamboat & Canal Transp. Co. v. Tiers, 24 N. J. Law,